MBE Tip of the Day: Criminal Procedure

Answer to the Criminal Procedure MBE Question

Subject: Criminal Procedure

Legal Issue: Search and Seizure and the Exclusionary Rule

Legal Rule and Analysis: The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures conducted by the government in areas where an individual has a reasonable expectation of privacy.  When considering the legality of a search or seizure, one must first ask whether the Fourth Amendment even applies.  The person must have had a reasonable expectation of privacy in the thing being searched, and the search must have been conducted by a government agent.  If one of those elements is not present, then the protections provided by the Fourth Amendment do not apply.  A person has no reasonable expectation of privacy in things that are held out to the public.  A government agent can freely search or seize anything that falls into this category.

A person’s garbage does fall into this category.  The courts have held that one does not have a reasonable expectation of privacy in the garbage that they throw out.  This is the case even if the garbage bags are sealed well. They have relinquished this property to the public.  A government agent can freely search or seize someone’s garbage without there being a violation of the Fourth Amendment.

Conclusion: Evidence obtained through a search of garbage left out on the curb in the public will not be suppressed at trial.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (D) is therefore correct. (A) is incorrect because the search did not need to fall under a warrant requirement to be valid.  The tailor did not have a reasonable expectation of privacy in the garbage thrown out at the curb.  Thus, the Fourth Amendment protections do not apply and we do not even need to consider the warrant requirement. (B) is incorrect because there did not need to be any standard met in order to conduct this search.  Whether there was probable cause or a reasonable suspicion to believe a crime was committed is immaterial when the Fourth Amendment doesn’t apply.  Probable cause is the standard to obtain a warrant, but a warrant was not necessary here.  (C) is incorrect because even if a warrant were required for this search, the plain view exception would not have justified it.  The plain view exception requires that the officer was lawfully present in the area where the evidence was seized, and that the criminality of the evidence seized be immediately apparent.  There is no indication that the garbage bag presented any characteristics of criminality, and the actual incriminating evidence was found within the garbage back.  There was nothing incriminating within the plain view of the officers, and the officers would not have been “lawfully present” searching through the bag (assuming the Fourth Amendment applied).

MBE Tip: It might be tempting to jump right into the narrow issues of a topic and skip over the broad ones.  When you have something like a constitutional issue, always make sure the amendment actually applies before you consider the nitty gritty details of the amendment.  In the above question, it might have been tempting to skip right into considering whether any of the exceptions to the warrant requirement were met the second you saw a search being conducted.  However, that would lead you to skip over the actual issue being tested.  Answer choices will try to capitalize on that tendency by offering incorrect options that sound more technically involved.  Don’t fall into these traps!  Make sure you consider the basics first!