Criminal Procedure Midterm Hypo

Respond fully in essay form to the question below.  Make sure to leave time for organization before and polish after. 

The Dayton Police Department received an anonymous letter that said the following: “Marie Curie is illegally running a fake ID business from inside her apartment, at 12 Stewart Street.  She produces falsified documents like fake passports.  My friend purchased a fake driver’s license from her.  If you look through her garbage, you will see all sorts of fake documents.”  The next day, Officers Green and Brown of the Dayton PD went to Curie’s home.  From the street, they observed, over the course of five hours, about 10 different people entering the home and each exiting one hour after he or she entered.  That night, the police walked onto the front porch of Curie’s home.  By the front door, they found an opaque garbage bag.  Officers Green and Brown went through the bag and found what appeared to be many falsified documents.

On the basis of the information they had, Officers Green and Brown procured a warrant from a magistrate judge.  The warrant allowed the officers to search for “any item in any location that seemed suspicious.”  When the police knocked on the door, no one answered for 20 seconds, so the police kicked the door down.  Inside, the officers searched the house and found an entire fake ID production ring.  Marie Curie eventually saw the officers holding a search warrant and searching her home, and she attacked them.  She was promptly placed in handcuffs,

Discuss the officers’ actions.  Analyze, comparing to cases when helpful, whether each action was legitimate, illegitimate, or a close question under the Fourth Amendment.



Crim Pro Midterm Answer Key


There are two different searches, one of the garbage and one of the home.  Keep these straight.

  • Initial going through the garbage was a search
    • The garbage bag was in the curtilage of the home – like Jardines – so distinct from Greenwood. Just like you cannot use a drug-sniffing dog in the curtilage, even though no general expectation of privacy in contraband, you likely cannot go through someone’s garbage right in the curtilage of their home, even though no reasonable expectation of privacy in trash on the street. Trespass theory of search from Jones, not Katz – although perhaps you can also win under Katz.
  • The initial search of the curtilage was not supported by a warrant and was maybe supported by probable cause.
    • Probable cause is close, under the totality of the circumstances test in Gates. The informant’s tip was anonymous and lacked reliability, but it did provide a basis for the information. Further, the officers corroborated the tip and found suspicious-seeming information.  The hour-long visits could have an innocent explanation, but, just like in Gates, officers do not have to rule out every innocent explanation.
    • The officers did not get a warrant to do the garbage search.
      • Exigency likely did not justify this warrantless search because although fake documents were being procured, life and limb was not in imminent danger.


  • For the search of the home, the warrant the officers did get was supported by probable cause, but it was based on an illegal garbage search and was insufficiently particular.
    • Perhaps the police had probable cause even without the search of the garbage, as mentioned above. If not, then the warrant is invalid as based on the illegal garbage search.
    • However, the warrant did not specify with any particularity the items to be searched or seized, and the warrant did not seem to limit the scope of the search at all – except for the vague word “suspicious.”


  • The manner of the search may have been unreasonable.
    • Even if the warrant was valid, the police are generally supposed to knock and announce their presence.
    • However, Curie did not show up to the door for 20 seconds. Perhaps that was sufficient time for the police to reasonably believe evidence was being destroyed, although this is not a drug case, so evidence is harder to destroy. (2)
    • Unreasonable manner of the search would not lead to suppression of evidence, just a 1983 suit.


  • Curie’s arrest/seizure was supported by probable cause – she attacked the police – and the police did not need a warrant because the attack happened in the officers’ presence and was likely a felony anyway. The invasion of the home may be a separate violation – although the officers may have a reasonable belief they are permitted in the home because of the search warrant (although the warrant is insufficiently particular).

4 thoughts on “Criminal Procedure Midterm Hypo”

  1. I have a question: you wrote “Perhaps the police had probable cause even without the search of the garbage, as mentioned above. If not, then the warrant is invalid as based on the illegal garbage search.”

    If we conclude that the police did not have probable cause without the illegal garbage search, I assume that means that the police wouldn’t have been able to get the warrant (since they lacked probable cause/sufficient evidence). Doesn’t that place them in a bind, where the crime isn’t something they can pursue without committing an illegal action?

    Or is the lack of probable cause not a bar to obtaining the warrant?


    1. The police would then have to corroborate their evidence more before getting a warrant. That is the purpose of the probable cause standard, to protect us from searches that are unreasonable (and without justification). That said, if the police reasonably relied in good faith on the warrant, the evidence will not be excluded anyway, per Leon’s good faith exception.


  2. Sounds good. So an answer to the question “What should the officers have done instead?” would likely be that they should have continued the investigation in other ways, without invading the curtilage of the home. Does that sound right?


    1. They can continue the investigation in any way that does not amount to a search (invading a reasonable expectation of privacy, which absolutely includes the curtilage of the home). You got it!


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