Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on a criminal procedure MBE question.
You will see 25 scored criminal law/procedure MBE questions on the Multistate Bar Exam. About half will focus on criminal law and half on criminal procedure. In this post, we will review a criminal procedure question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day Instructions:
Do your best to answer this criminal procedure MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Criminal Procedure MBE Question
The local police department was trying to solve a recent series of murders. Possessing reasonable suspicion that the perpetrator resided in a neighborhood on the west side of the city, the police decided to search through the garbage of all the residents on garbage day. One of the houses the police visited belonged to the local tailor. The tailor had recently left two bags of garbage at the end of the driveway. They were both tied tightly and sealed well. While going through the bags, the police found evidence that placed the tailor at the scene of many of the murders. The tailor was subsequently charged and the evidence found in the garbage bags was offered at trial. The tailor moved to suppress the evidence, arguing that the search violated the Fourth Amendment’s protection against unreasonable searches and seizures.
Should the evidence be suppressed?
(A) Yes, because the search does not fall into any of the exceptions to the warrant requirement.
(B) Yes, because the officers were basing their search on a mere reasonable suspicion.
(C) No, because the plain view exception justifies this search.
(D) No, because the Fourth Amendment does not apply to this search.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
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!
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: The protections offered by the Fourth Amendment will not apply if the individual does not have a reasonable expectation of privacy in the thing being searched or seized.
MBE Tip: Don’t skip over the broad rules in your haste to get to the specific ones!
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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