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Author Topic: Crim Pro Question.  (Read 4191 times)

goaliechica

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Re: Crim Pro Question.
« Reply #40 on: December 04, 2008, 12:52:40 AM »
This makes me so irritable. Hello: exclusionary rule makes sense because: if you found it in a bad way, we're going to put everyone in the position they were beforehand, just like we try to do in torts, Ks, etc, all the time, and make it like you didn't find it, because that's what we do when good processes go awry. We try to restore people to the positions they should occupy: benefit of the bargain in Ks, make the plaintiff whole in torts. You only get to use GOOD EVIDENCE. You broke the rules, so now it's NO GOOD.

your honors, as the attorney for the government, i'd like you to define "in a bad way" as narrowly as possible, so that it almost never applies to the situation.

Happily, even the textualists have to admit that the fourth amendment means a little something. which is DON'T ROOT AROUND IN PEOPLE'S *&^% AS A GENERAL RULE a-hole.

Uch. The bf had an unpleasant po experience today and tomorrow is my second to last copsnrobbers class and I'm just in a bad mood. And I have to go read Escobedo and Massiah now.

I think P told me Escobedo isn't very important anymore! I'm hoping to figure it out by Monday.

I'm sorry about the boyf  >:(
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dashrashi

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Re: Crim Pro Question.
« Reply #41 on: December 04, 2008, 01:00:03 AM »
This makes me so irritable. Hello: exclusionary rule makes sense because: if you found it in a bad way, we're going to put everyone in the position they were beforehand, just like we try to do in torts, Ks, etc, all the time, and make it like you didn't find it, because that's what we do when good processes go awry. We try to restore people to the positions they should occupy: benefit of the bargain in Ks, make the plaintiff whole in torts. You only get to use GOOD EVIDENCE. You broke the rules, so now it's NO GOOD.

your honors, as the attorney for the government, i'd like you to define "in a bad way" as narrowly as possible, so that it almost never applies to the situation.

Happily, even the textualists have to admit that the fourth amendment means a little something. which is DON'T ROOT AROUND IN PEOPLE'S *&^% AS A GENERAL RULE a-hole.

Uch. The bf had an unpleasant po experience today and tomorrow is my second to last copsnrobbers class and I'm just in a bad mood. And I have to go read Escobedo and Massiah now.

I think P told me Escobedo isn't very important anymore! I'm hoping to figure it out by Monday.

I'm sorry about the boyf  >:(

Oh, it's not. But I like the prof so I don't want to be unprepared.

Boyf does not have legal troubles, for all who were worried. He called to report a screwed up traffic situation (lights be-screwed, drunk man poorly trying to direct traffic, near a playground, huge intersection) and the cop/dispatcher on the phone acted like a dicksmack. Yale PD > Cambridge PD > Boston PD (but still > that one f-ing psychotic New Haven PD).
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observationalist

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Re: Crim Pro Question.
« Reply #42 on: December 04, 2008, 01:56:52 AM »
Is anyone else studying for Crim Pro by watching Law & Order? 

Yesterday we flipped it on...  the dialogue went something like this:

"Look at this! motion to suppress the tapes. They're saying the heat sensors were an unwarranted search." 
McCoy:"Kyllo doesn't apply here!"

Then they go to court and they explain how Kyllo's limited to homes and that a mosque has no such privacy.  Court thinks about it, says poisoned fruit applies so no go on the tapes.  Then there's some sage wisdom by whiskey-swigging Fred Thompson, a bunch of terrorist accusations, the Imam testifies so the murderer gets a dose justice, the mosque gets firebombed by the Imam's former supporters, USA wins, end scene.
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jacy85

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Re: Crim Pro Question.
« Reply #43 on: December 04, 2008, 07:08:33 AM »
I loved "studying" for crim pro by watching law and order.  They get stuff wrong all the time, but I always got excited when they got something right.

Miss P

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Re: Crim Pro Question.
« Reply #44 on: December 04, 2008, 10:18:24 AM »
Is anyone else studying for Crim Pro by watching Law & Order? 

Yesterday we flipped it on...  the dialogue went something like this:

"Look at this! motion to suppress the tapes. They're saying the heat sensors were an unwarranted search." 
McCoy:"Kyllo doesn't apply here!"

Then they go to court and they explain how Kyllo's limited to homes and that a mosque has no such privacy.  Court thinks about it, says poisoned fruit applies so no go on the tapes.  Then there's some sage wisdom by whiskey-swigging Fred Thompson, a bunch of terrorist accusations, the Imam testifies so the murderer gets a dose justice, the mosque gets firebombed by the Imam's former supporters, USA wins, end scene.

:D :D

...

er,  :-\
That's cool how you referenced a case.

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archival

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Re: Crim Pro Question.
« Reply #45 on: December 04, 2008, 10:19:56 AM »
I'm getting excited for crim pro.
But how do you deal with someone who rejects your broad moral principles?
I kill them.

mutual_biscuit

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Re: Crim Pro Question.
« Reply #46 on: December 04, 2008, 07:33:49 PM »
Wow, I'm surprised with the attention this thing has received. Back to my initial question (hypo #2 with the car specifically).

First, I'm not sure that Acevedo solves the problem. My interpretation of Acevedo is that, where you have probable cause to search a container inside of a car, you have probable cause to search that area of the car:

In the case before us, the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana. That probable cause not allows a warrantless search of the bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonably under the Fourth Amendment. - Acevedo

This does nothing to solve the problem of whether you can expand the scope of the search of the interior of a car to the trunk upon discovery of some new evidence.

It appears as though courts remain split on this issue. Wimberly v. Superior Court, 547 P.2d 417 (Cal.1976) says that the search of a trunk is illegal if you only have probable cause that the people are "occasional users rather than dealers." While U.S. v. Loucks, 806 F.2d 208 (10th Cir. 1986) says that such a distinction is illogical. Both of these are pre-Acevedo opinions, but neither has been undermined by Acevedo.

My guess is the issue remains undecided but, taking into account the favoritism  towards bright-line rules and the nature of the auto-exception, most court would side with the Loucks decision.

StudentUVA

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Re: Crim Pro Question.
« Reply #47 on: December 04, 2008, 08:59:34 PM »
Wow, I'm surprised with the attention this thing has received. Back to my initial question (hypo #2 with the car specifically).

First, I'm not sure that Acevedo solves the problem. My interpretation of Acevedo is that, where you have probable cause to search a container inside of a car, you have probable cause to search that area of the car:

In the case before us, the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana. That probable cause not allows a warrantless search of the bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonably under the Fourth Amendment. - Acevedo

This does nothing to solve the problem of whether you can expand the scope of the search of the interior of a car to the trunk upon discovery of some new evidence.

It appears as though courts remain split on this issue. Wimberly v. Superior Court, 547 P.2d 417 (Cal.1976) says that the search of a trunk is illegal if you only have probable cause that the people are "occasional users rather than dealers." While U.S. v. Loucks, 806 F.2d 208 (10th Cir. 1986) says that such a distinction is illogical. Both of these are pre-Acevedo opinions, but neither has been undermined by Acevedo.

My guess is the issue remains undecided but, taking into account the favoritism  towards bright-line rules and the nature of the auto-exception, most court would side with the Loucks decision.

My interpretation  of Acevedo is that if you have a probable cause that a container has contraband in it then you can wait until that container is in a car, and then you can use the automobile exception to search the container in the car without a warrant. So you forgo the need to get a warrant to seize the container once the suspect puts it in the car. I'm not sure if it is pertinent here.

I agree with some of the previous posters who pointed out that the inquiry here hinges on whether the cops had probable cause to believe that the driver had more drugs in the car. If there was PC, then under the automobile exception the officer could search the trunk. If there was no PC, then the trunk cannot be searched even if the officer arrests the suspect. He'd need to get a warrant to search the trunk. Of course, I don't think there is a bright line rule here and you should just create arguments on both sides for whether there is a PC or not.

With regards to the first question, I don't think that the exigency argument is such a slam dunk argument here. Just because there is evidence of bomb making does not nec mean that there is an active bomb that may explode. I think you could argue that cops can prevent anyone from entering the apartment under McArthur until they get a warrant, and that would be sufficient. But absent some further details, it is not clear why there is an exigent circumstance (although argue both sides).

goaliechica

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Re: Crim Pro Question.
« Reply #48 on: December 04, 2008, 09:18:12 PM »
The reason I initially cited Acevedo is that, in *my* class with *my* professor he noted that it is a case that does a good job of stating the general rule that you can search whatever you have probable cause to search, but no more than that (legal realism aside for a moment). In the particular fact pattern in Acevedo, that meant that you could search the container once it was in the car if you had probable cause to search the container, but that you could not then search the whole car unless you found something in the process of searching the container that gave you probable cause to search the whole car. His take was that these principles were broadly applicable in other cases. Here, there was something in plain sight, rather than a container, but the principle should be the same - you can only search where you have probable cause to search, but if you legitimately find something that gives you probable cause to search other areas during that initial search, you can keep going. Other professors may not frame it that way, or think that the principles of Acevedo are broadly applicable in that way, or consider it a particularly important case, but in our class it was considered the primary case for establishing the modern rule in terms of car searches. That is why I brought it up. This may not be relevant or useful if your crim prof does not see it that way.
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dashrashi

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Re: Crim Pro Question.
« Reply #49 on: December 04, 2008, 09:28:01 PM »
Who wants to hear something funny-terrible about finals?

OH ME I DO I DO I DO

So, I loaded up on the public-defender-wannabe courses this semester for reasons of necessity and desire alike. Taking evidence, CopsNRobbers, and BailToJail. As are quite a few other people.

Finals schedule for these three classes: last class is tomorrow. Evidence final: Monday. CopsNRobbers Final: Tuesday. BailToJail Final: Wednesday. No reading week, no nothing. I went to the registrar (at my UG, when your finals schedule looked like this, they would move one of them--usually the middle one, and apparently they fixed a similar situation for a few of the 1L sections last year). Desfortunadamente, they were like, wowzers, sucks to be you. HELPFUL.

I finally started discussing this with a fellow student today, about how this is, Oh, I don't know, f-ing ridiculous, and then I started coming up with this plan how all the people in this predicament (not insignificant number) would go see Dean Kagan at her office hours, because this is precisely the kind of thing she should know about that is making a fraction of the students' lives very miserable, honestly, and she's really the only one with enough authority to do anything about it, and she'd definitely be receptive to at least listening to the corrective ideas people have had, or else why would she have office hours, etc etc.

So I go to look up when her office hours are (they are irregular, happen every few weeks or so, and you have to make an appointment in advance) and, irony of ironies, we can't go air our grievances to the dean about our untenable finals schedule because (you guessed it!) we'll be taking our third final in three days, after a full week of classes, this coming Wednesday from 9:30 to 11:00, when she is holding her office hours.

Blinding fury. Also finals stress.

/jack

On topic: we didn't read McArthur. I also still have no idea what cops are allowed to do re passengers in a car. Can they make you get out? Why can they make the driver get out? It won't be on the exam since we didn't officially cover it, but talk about the one thing I'd really like to know in terms of my real life.
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Saw dashrashi's LSN site. Since she seems to use profanity, one could say that HYP does not necessarily mean class or refinement.