4th Amendment

Effecting Arrest

Accousting

Seizure/Stop
(1) phys restr by PO, OR (2) show of author & submission

Arrest w/o Warrant
Must have PC

Prob Cause: Factors (indv to specific persons/places - Pringle): (1) Informant (a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated), (2) exp of PO, (3) Ds prior crim record, (4) info from W or Vic, (5) furtive gestures or flight?, (6) nature of area, (7) common enterprise?

Rsb Art. Suspc armed/dang or contraband

PC develops that crim ab to be comm or did Government actor intrudes on rsb expct of privacy that society wld agree is private Whether state actor meaningfully interferes w/ indiv possessory interest

Search & Seizure Rule:
defined ask defined

Search: Person, Place, House Seizure

Public Actor or Governmental Conduct? Reasonable Exp of Privacy & Society Wld Believe So?
no

Private still Gov’t IF under authority of PO Own premise searched

Standing sometimes

yes

Live in place or home (no own)

Overnight guests

Look for “meaningful connection” that’s not fleeting

Don’t own but may have rsb expt of privacy (i.e. borr purse)

Passenger in cars

if

If don’t claim own car

AND

Don’t claim property searched

Sound of voice Held out to public everyday Paint on car

handwriting Garbage (not in curtilage)

Records held at bank “Open Fields” & “Pub. Airspace”:

Emanating Odors (dog search if public & srch 4 contra)
Dunn Factors: (1) prox to house, (2) enclosed?, (3) nature/use of area, (4) steps to protect area New Tech: (1) whth in gen use, (2) revealing inside not knwn othwis (arg gen use & know)

Valid Search Warrant?

1) Probable Cause

Fair prob. that evid. will be found in place searched

Hearsay permitted in probable cause

Informant tip permitted

but states

Aguiler Test:

(1) Sufficient facts & circum. to allow magis to know how PO got info
AND

2) Particularity items & place

In MD – daytime is rule; Fed – exp made for night

Factors: (1) Informant (a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated of future behavior)?

(2) Police must vouch for RELIAB and CREDIB of informant (thr prev tips) – use TOT of CIRCUM
Executing W all

3) Reviewed/app by neutral mag

4) Signed under Oath

5) PC not stale/ old/out-dated

Serve in day, timely, knock/annc (avoid prop damag, avoid violence, prevent unnec invasion)

Wait rsbl amt of time after K&A

If not valid, will PO “Good Faith” reliance save?

Good faith will overcome defects with probable cause or ptc req for physical evidence

Magistrate is biased
or

Detain all (frisk = rsb sus of crim for non-subs) Affidavit for W is so lacking in PC – no rsb PO wld rely Affidavit for W is so lacking in part – no rsb PO wld rely Search only areas listed in warrant Seize only items listed in W & in plain view

If non-valid W, 6 Exceptions to Warrant Requirement:
Search Incident to Lawful Arrest:

PO or pros lied or mislead magis.

Automobile Exception:

Plain View

Consent

Stop & Frisk

Hot Pursuit / Evanescent Evidence

If arrest is unlawful then search is unlawful

Just b/c car, AE except not guar. – intent b/c cars move Automobile Exception (when car has evidence): Must have PC to support S

Arrest & search must be contemp in time & place

PO must be legit present when he/she does viewing of item seized & Immediately apparent

Consent must be:
both

Terry Stop BREIF deten for purp of invest suspic conduct Standard = reasonable suspicion Terry Frisk Patdown check for weap/contra

Ev Evid Evan Evid: evid that might disap if PO gets warrant (scrape fingernails) Standard = reasonable suspicion for PO safety (looks like weapon or contra)

Hot Purs If PO are not w/in 15 min of fleeing felon then not w/in hot purs

Voluntary
and

Intelligent

Geographic Scope Limitation

Can search ALL car (spaces & trunk) – less exp of privacy (Carney)

Whether lawfully seeing (i.e. enter house lawfully)

Saying have warrant, negates consent – but no req on PO to explain

“Wingspan” - person & areas reached for weapon or destroy evidence

If taken out of car & arsted NO… UNLESS can reach car for weapon or dest evid

Package or container that RSB cld contain item looking for if owned by pass or driver PC can dev after stop

Inventory srch: prtct prop, prtct claims of fraud/theft, PO safety Must follow pre-estb PO procedures.

TP consent – 2 own, either can consent.

2 own, both pres & 1 does not consent then not

If ok, anything entered from home will be admiss

If consent, may limit scope (Jimeno)

Matlock Factors for TP Consent: (1) mutual use, (2) joint access/control, (3) rsbl recognition, (4) assumed risk Police must act reasonably to determine.

Exclusionary Rule
Fruit of Poisonous Tree

Limitations

Grand Juries

Not in Civil

To Qual: Must Violate C or Fd Stat.

Not in parole hearings

For impeachment purposes

Not for violations of “knock & announce” rule

Other guests:

No common enterprise of residence when W is good on location w/ others (Ybarra) May reasonably detain non-ID’ed ind. in house when W names D’s

Purpose: exclude evidence obt by PO by exploiting unlawfully obtained evidence PO “Rslb Sus” knock wld:

dangerous

Inhib inves. – evid. destr.

futile

Independent Source

Inevitable Discovery

Intervening Acts of free will on part of D

Honest mistake in executing W may be permissive This includes back of police car

Wiretapping & Eavesdropping Confessions & Miranda

PC required for all

Howev, unreliable ear is assumed for all people

Miranda

Right to remain silent

Words may be used against

Rght to att’y

Rght to att’y

Atty appt

14 – Fundamental Fairness – “Shocks the Conscience”

th

Custodial interrog. (state actor)
(2) but

(1)

Custody

In custody if at time of interg did not feel free to leave

Objective stand

In cell, but also maybe in home or hospital

Prob intv & car stop not custodial

Interrogation

Any conduct where PO knew or shld know might illicit incrim respon from D

More than just asking questions

Spontaneous statement by D is admiss Booking Exception & Public Safety Excp

Miranda Waiver

voluntary

intelligent

May waive w/o signing waiver form

Shoulder shrugging not enough, must comminc it

Right to Counsel

6th Amnd

Once assert right to termin interr, reinitiating w/o counsel = violation 1 circumstance: D invokes, and PO may not reinitiate on ANY topic

Offense specific

McNeil – incrim stat made while in jail on burglary for murder, allowed b/c didn’t ask for att’y on murder

5th Amnd

Not offense-specific Bias the W in ID’ing Excpt: indenpd. source

Checklist:

Rght to atty @ interg

Post-charge atty

Due process in W ID Remedy: exclude ID

Pre-trial Procedures

Bail Issues

Immediately appealable

Preventative detention is allowed

Look at subjective intent of PO

Look for (a) same questions pre,post Miranda, (b) timing, (c) continuity of personnel

Warrantless Public Arrest

Warrantless House Entry to Arrest
Not permitted to make routine felony arrest when nonconsensual – cannot create the emergency
except except

Warrantless House Entry When Arrest is Outside Home
Must be substantially contemporaneous to arrest and confined to immed vicinity

Committed in Officer’s Presence

Not in Officer’s Presence

Felony or Misdemeanor

Felony w/ PC (no need to show exig)

Hot Pursuit Must be for major crime & must be a continuous pursuit from scene of crime

Exigent Circumstance Prevent: (1) destroy evid (2) D escape (3) danger

If arrest outside & PO believe evidence is inside, may detail D until PO can obtain lawful W to search house

Even for very minor crime when in presence of PO

Subjective intent of officer not material

Lawful or Unlawful – when make arrest in home, police may search:

Warrantless Search of Auto Incident to Arrest of Occupant for Lawfully Stopped Vehicle
Belton rule: lawful custodial arrest of occupant, may search passenger compartments & containers found within (PO safety & evidence)

If lawful, search of arrestee w/o warrant lawful The person of D to protect PO safety
and

Even though police have PC to make arrest, method they use must be rslb

W/in D immed. Control (weap/contra)

When lawful, may conduct “protective sweep” (closets, hiding spots) Atwater: police may arrest for any violation, even minor. Whren: Test is whether COULD HAVE arrested or pulled over, not subjective intent of PO

Including containers owned by passengers

and

Search may be for occupants & recent occupants

Cursory inspect & not excessive length Exigent Circum Factors: (1) amount of time between crime/arrest, (2) severity of crime, (3) protection is sole reason for entrance (4) police have seen commission of crime, (5) # of ppl affected by entry

To go beyond cursory, must have rsb art facts that warrant that other places may harbor hiding assailant

Special Needs Cases
Schools

(a) rsbl grounds to think there’s a violation of school policy,
and

Evaluate (1) level of intrusiveness of “checkpoint” or mandatory stop, (2) extent of the state’s interest, (3) effectiveness of the method, (4) notice prior to stop or intrusion.

(a) rsbl grounds to believe search will turn up evidence

Excessive intrusiveness of search shown by: (a) age, (b) gender, (c) crime, (d) method used for search

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