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Author Topic: Crim Pro Question.  (Read 4119 times)

mutual_biscuit

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Crim Pro Question.
« on: December 03, 2008, 04:18:44 PM »
Does finding contraband that is not within the scope of the original search expand the scope of the original search?

#A) Legitimate warrant to search a home for stolen coins. During searh, and in plain view, the police find evidence of bomb making. Has the scope of the original search been extended to areas that might contain bomb-making materials or would a warrant to search for this new contraband be required? I'm pretty sure that since it's a residence and since they already have control of the residence a new warrant would be required absent some emergency need to search.

#B) The police pull a car over for speeding and in the process they see a joint (marijuana cigarette) sitting in the ashtray. They arrest and search the interior of the car for further marijuana evidence and under the seat they find an expertly packaged kilo of cocaine under the seat. Does finding the kilo expand the search to the trunk and upholstery given the fact that he may be transporting drugs as opposed to a minor offender. Given the fact that it's an automobile I think the probable cause can expand the scope of the original search to the trunk and upholstery absent a warrant.

What do you think? 

goaliechica

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Re: Crim Pro Question.
« Reply #1 on: December 03, 2008, 04:35:16 PM »
Does finding contraband that is not within the scope of the original search expand the scope of the original search?

#A) Legitimate warrant to search a home for stolen coins. During searh, and in plain view, the police find evidence of bomb making. Has the scope of the original search been extended to areas that might contain bomb-making materials or would a warrant to search for this new contraband be required? I'm pretty sure that since it's a residence and since they already have control of the residence a new warrant would be required absent some emergency need to search.

#B) The police pull a car over for speeding and in the process they see a joint (marijuana cigarette) sitting in the ashtray. They arrest and search the interior of the car for further marijuana evidence and under the seat they find an expertly packaged kilo of cocaine under the seat. Does finding the kilo expand the search to the trunk and upholstery given the fact that he may be transporting drugs as opposed to a minor offender. Given the fact that it's an automobile I think the probable cause can expand the scope of the original search to the trunk and upholstery absent a warrant.

What do you think? 

I think you're right on both counts.

 I don't think you can expand the scope of a warrant in a home beyond what's described (although police can seize the bomb-making materials in plain sight), even with additional probable cause, without getting a new warrant. Officers can only seize things in plain sight from where they're entitled to be based on the initial warrant, but can't then go rifling through drawers and things, even if they find weapons and stolen items, according to Horton. The police could detain the people in the home while they go get the warrant, if they're worried about evidence being destroyed, according to McArthur.

Acevedo says that in a car, an officer can search whatever there is probable cause to search without a warrant, and that if initial permissible search turns up evidence that creates probable cause for a more extensive search, that's allowed. If the initial stop was justified, then the marijuana cigarette in plain view provides probable cause for the arrest, the arrest provides justification for a search of the car incident to arrest, and the cocaine provides probable cause for narcotics trafficking, justifying a more extensive search than one justified by concern for officer safety and preservation of evidence.

So I agree with you! Hopefully we're both right! My exam is on Monday.
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jgsmith

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Re: Crim Pro Question.
« Reply #2 on: December 03, 2008, 08:41:18 PM »
I think your wrong on the first question. I think this creates an exigent circumstance. Finding bomb making material could mean that there is, in fact, a bomb in the house. This bomb could put everyone in danger, potentially the entire neighborhood (depending on the size/type bomb). I think this is the epitome of an "exigent circumstance."

THe second question is easy. Any time you have probable cause to search a car, you can search the entire car, including the trunk. If they could search the rest of the car for marijuana, then they could search the trunk and anything in the trunk capable of containing marijuana or cocaine.

goaliechica

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Re: Crim Pro Question.
« Reply #3 on: December 03, 2008, 09:13:48 PM »
I think your wrong on the first question. I think this creates an exigent circumstance. Finding bomb making material could mean that there is, in fact, a bomb in the house. This bomb could put everyone in danger, potentially the entire neighborhood (depending on the size/type bomb). I think this is the epitome of an "exigent circumstance."

Fair. Bombs are probably a good example of something that would create probable cause to think there was a danger that would justify a protective sweep of a house. You're right.

Good thing I still have until Monday  :P :D
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goaliechica

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Re: Crim Pro Question.
« Reply #4 on: December 03, 2008, 09:16:07 PM »
THe second question is easy. Any time you have probable cause to search a car, you can search the entire car, including the trunk. If they could search the rest of the car for marijuana, then they could search the trunk and anything in the trunk capable of containing marijuana or cocaine.

Hmmm this must be a case of where professors frame the nuances of things differently. Our prof's take is that the current rule under Acevedo is that, while there is a diminished privacy expectation for a car, you can still only search what you have probable cause to search. Meaning you can search a car incident to arrest, but only where you would reasonably need to look to make sure there are no weapons or destructible evidence (although this is construed pretty broadly, it usually doesn't mean a closed trunk), but if during that justified search you find something that gives you probable cause to look harder, you can keep going.

The way we learned it is that this was in response to the fact that police were watching a suspect with a closed container, where they had probable cause to search the container but no warrant, and so couldn't search the closed container out in public, and waiting for the suspect to take the closed container into the car, and then justifying a search of both the container and the entire car, despite the fact that there was no separate probable cause for the car. Courts didn't like this, so they said that in this instance you can only search what you have probable cause for, i.e. the container, but if you find something that gives you probable cause to search other parts of the car, you can.

ETA: Apologies for that being totally incoherent.
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dashrashi

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Re: Crim Pro Question.
« Reply #5 on: December 03, 2008, 09:19:58 PM »
THe second question is easy. Any time you have probable cause to search a car, you can search the entire car, including the trunk. If they could search the rest of the car for marijuana, then they could search the trunk and anything in the trunk capable of containing marijuana or cocaine.

Hmmm this must be a case of where professors frame the nuances of things differently. Our prof's take is that the current rule under Acevedo is that you can only search what you have probable cause to search. Meaning you can search a car incident to arrest, but only where you would reasonably need to look to make sure there are no weapons or destructible evidence (although this is construed pretty broadly, it usually doesn't mean a closed trunk), but if during that justified search you find something that gives you probable cause to look harder, you can keep going.

Our prof said that if they have probable cause to search the car for contraband, then they can search the whole shabang. Probable cause to search for contraband is probably constituted by "Uh, I saw him leaning down like he was putting something under the seat." This is separate from the car search incident to an arrest, which is only the passenger compartment (officer safety blah blah bull). But once you get probable cause to search for contraband, you can slit open the seat cushions and look in the wheel-wells, I think.

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goaliechica

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Re: Crim Pro Question.
« Reply #6 on: December 03, 2008, 09:22:32 PM »
THe second question is easy. Any time you have probable cause to search a car, you can search the entire car, including the trunk. If they could search the rest of the car for marijuana, then they could search the trunk and anything in the trunk capable of containing marijuana or cocaine.

Hmmm this must be a case of where professors frame the nuances of things differently. Our prof's take is that the current rule under Acevedo is that you can only search what you have probable cause to search. Meaning you can search a car incident to arrest, but only where you would reasonably need to look to make sure there are no weapons or destructible evidence (although this is construed pretty broadly, it usually doesn't mean a closed trunk), but if during that justified search you find something that gives you probable cause to look harder, you can keep going.

Our prof said that if they have probable cause to search the car for contraband, then they can search the whole shabang. Probable cause to search for contraband is probably constituted by "Uh, I saw him leaning down like he was putting something under the seat." This is separate from the car search incident to an arrest, which is only the passenger compartment (officer safety blah blah bull). But once you get probable cause to search for contraband, you can slit open the seat cushions and look in the wheel-wells, I think.

f-in' cops.

Hmmm.

ETA: I reckon we should all go with what our individual professors said, as such is the way of law school exams.

ETA 2: Okay, my revised way of thinking about this is that if you find contraband in a car, it gives you probable cause to believe there may be more contraband in the car. So it is still about what you find giving you probable cause for the next step of the search, but finding contraband provides sufficient probable cause to search the whole car, generally, while you might have probable cause to search a closed container in the car, but if you didn't find contraband in it, you couldn't just keep going.
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jgsmith

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Re: Crim Pro Question.
« Reply #7 on: December 03, 2008, 09:37:57 PM »
I don't see how the Acevedo case is relevant to your hypothetical. THe Acevedo case is about containers in a car. When a cop has probable cause as to a certain container that it holds drugs. The relevant inquiry in your fact pattern is whether the officer had probable cause that the car contained more drugs, if the answer is yes, then the officer can search the entire car and anything in it that could hold the drugs. 

goaliechica

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Re: Crim Pro Question.
« Reply #8 on: December 03, 2008, 09:42:57 PM »
I don't see how the Acevedo case is relevant to your hypothetical. THe Acevedo case is about containers in a car. When a cop has probable cause as to a certain container that it holds drugs. The relevant inquiry in your fact pattern is whether the officer had probable cause that the car contained more drugs, if the answer is yes, then the officer can search the entire car and anything in it that could hold the drugs. 

I just cited Acevedo as laying down a general principle that you can only search what you have probable cause to search in a car, and if you find something (such as contraband) that gives you additional probable cause, you can keep going. It is not directly analogous to this case in that there is not a closed container here, no. I did not think there was a per se rule that contraband meant you could search the whole car, but rather a case-by-case determination should be made if the contraband you found gave you sufficient probable cause to search the whole car. I must be mistaken in thinking that it would ever entitle the officer to do less than search the entire car.

ETA: Okay, more revised thinking. I think that on an exam, you could at least make an argument that finding a marijuana cigarette on the dash would not necessarily give an officer probable cause to search the trunk, because there is not necessarily reason to suspect drug trafficking, or more drugs (there might be, but you could at least make the counter-argument). Perhaps there is a case that we didn't read that basically says that there is a bright-line rule that contraband = probable cause for whole car, and maybe that's just de facto the way it works in real life, but we did not read such a case. Given the cases we read in my class, I would at least argue both sides of that one, where finding the kilo of cocaine seems like a much more clear case of probable cause to search the whole car.

Again, this may be a case of our professors framing things differently.
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jgsmith

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Re: Crim Pro Question.
« Reply #9 on: December 03, 2008, 10:03:57 PM »
I agree, I think it is a good idea to argue both sides. Here, read this case, it is almost exactly like your fact pattern. You may find it helpful.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mo&vol=/appeals/112006/&invol=6311106