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The governmental search and seizure of persons, houses, papers, and effects must be reasonable b. Warrants shall have probable cause supported by oath/affirmation describing the searches and/or seizures c. Fourth Amendment applies when a government of the United States searches or seizes a person in the United States d. State action is required e. The Fourth Amendment has been incorporated through the Fourteenth Amendment and applies to the states f. The Federal Constitution is a floor that grants only minimal rights g. State Constitutions can grant more protection than the Federal Constitution SEARCH a. Actual subjective expectation of privacy AND reasonable expectation of privacy (recognized by society as legitimate) b. Reasonable expectation of privacy i. "Plain Feel Searches" if "probing tactile examination" of property ii. Thermal Detection Devices detecting heat from inside the home 1. Where technology allows police to view in the home, consider the availability of the technology to the general public (eyeglasses v. night vision goggles—more available to society = less likely a search) c. No reasonable expectation of privacy i. Search in an open field is not a search UNLESS 1. Curtilage—proximity to the home, enclosures, use of area within curtilage, steps taken to protect from passers-by ii. Assumption of Risk 1. Consensual electronic surveillance is not a search because one "assumes the risk" that another will relay communication to the police 2. Where police request bank records 3. Where police request pen registers 4. Numbers left on pagers by callers BUT a. Owner of pager has reasonable expectation of privacy—similar to address book iii. No reasonable expectation of privacy in trash UNLESS 1. In the curtilage iv. Public Areas 1. Homeless persons have a reasonable expectation of privacy in their belongings placed on public property BUT NOT stuff on private property 2. No reasonable expectation of privacy in a bathroom stall where anyone could observe from outside the stall v. No reasonable expectation of privacy under aerial surveillance UNLESS 1. Overflight disturbs property vi. Police dog sniffing is not a search if all it reveals is the presence of an illegal substance BUT cannot be grounds by itself for opening the container
Seize: Probable cause to believe the item(s) is evidence of a crime c. V. Arrest: Probable cause to believe the individual is guilty of a crime d. Consider: Home Apartment Hotel Office Public (Warrant No warrant) iii. Interference with personal freedom (Arrest) c. Officers presumed truthful c. Neutral and detached magistrate must find a fair probability that evidence of a crime will be found/fair probability that the individual committed the crime iv. Things Seized—contraband. Issuance—Federal magistrate or state court within district ii. Remedies—motion to return unlawfully seized property or motion to suppress ARRESTS (NO WARRANT TO SEIZE PERSON) a. Search: Probable cause to believe there is evidence of a crime therein b. Inside the door and voluntarily opened ii. Copy and receipt for property seized vi. Police Follow-Up Investigation to corroborate information iii. Felony or misdemeanor in the presence of the officer does not require a warrant c. Execution—must be reasonable d. Reviewing court must find a substantial basis for magistrate's conclusion that probable cause existed INFORMATION IN THE WARRANT a. Place to be searched—whether the officer made a good faith effort to accurately describe the place to be searched b. Daytime—Before 10:00 PM v. Federal Rules of Criminal Procedure i. Hearsay is O. unless it's the only basis for probable cause d. Arrests in the home require a warrant UNLESS exigent circumstances exist i.K. Persons giving information as basis for probable cause 1. Staleness—10-day-limit on the life of the warrant iv. Veracity and reliability of the Information a. it is a mere encounter PROBABLE CAUSE a. Interference with property rights b. property. no warrant required to arrest d. Things to be seized—places that could reasonably hold the "thing" to be seized c. Where a misdemeanor-fine only offense is committed in the presence of an officer. Citizens presumed truthful b. Probable Cause for a Warrant to be Issued: i. Forcible Stop is a seizure if individual is not "free to leave" under the circumstances d. Totality of the Circumstances ii. fruits of a crime iii. If the individual is "free to leave" under the circumstances. Where there is probable cause to believe a felony has been committed. instrumentalities. SEIZURE (WHEN A SEIZURE TAKES PLACE) a. VI. Policy—sanctity of the home b. 2 .III. no warrant required to arrest IV.
Policy—OFFICER SAFETY AND PREVENT DESTRUCTION OF EVIDENCE PLAIN VIEW DOCTRINE (NO WARRANT TO SEIZE EVIDENCE) a. Based on a reasonably prudent officer with similar experience 1. Must be made within 48 hours after arrest i. Stop and frisk by officer after pulling over for a moving violation i. BEFORE the evidence is seized PLAIN TOUCH DOCTRINE (NO WARRANT TO VIII. XI. Search after a Patrol Stop: Once officer has probable cause to believe a person has committed a traffic offense. officer can pull the car over regardless of motive. First. Stop and frisk after an anonymous caller was unreasonable e. Search after issuance of a traffic ticket is NOT an automatic justification to search the interior of the car e. Reasonable suspicion of a traffic violation ii. Specific and articulable facts that justify the stop (connect experience with facts) b. Profiling may be used to supply the "experience" ii. Encounters do not trigger the Fourth Amendment if. Automobiles: After an arrest. Policy—OFFICER SAFETY SEARCH INCIDENT TO ARREST (NO WARRANT TO SEARCH PERSON AND GRAB AREA) a. Presumed unconstitutional ii. Police must have probable cause to believe that the evidence in plain view is evidence of a crime i.VII. IX. Containers in the interior d. Officers can also secure the premises by "sweeping" the area for protection c. ∆ must prove no delay was necessary or police tried to collect evidence within that time b. Police must prove they could not give a hearing within 48 hours c. f. Evidence obtained within the 48 hour span is not suppressed even if the hearing was not given within 48 hours UNLESS the delay caused the evidence to be obtained STOP AND FRISK (TERRY) (NO WARRANT STOP PERSON AND SEARCH PERSON FOR WEAPONS) a. Stop: Reasonable suspicion that criminal activity is afoot i. under the totality of the circumstances. 3 SEIZE EVIDENCE) . If not made within 48 hours after arrest i. Stop and frisk after a tip from an informant was reasonable d. presumed constitutional ii. police must have probable cause to arrest b. Reachable from the interior (NOT the trunk) ii. X. officers can automatically search the interior of the car i. If so. Frisk: Reasonable suspicion that the individual poses a danger to the officer i. Police must be in the area lawfully AND b. Reasonable suspicion of danger to the officer f. Generally: After an arrest. the individual has a reasonable belief that he is free to leave g. officer can search area within the arrestee's immediate physical control. Pat down for weapons c. Panels IF no damage done iii. PROCEDURE AFTER WARRANTLESS ARREST (DUE PROCESS) a. or the "grab area" at the time of the arrest for protection and preserving evidence i.
not criminal law. Balance government interests with private interests ii. XVI.a. Crime Scene: consent initial entry = no warrant when police return. Mixed motives are permissible c. Police may forbid entry into a home to preserve evidence while a warrant is obtained if done reasonably (reasonable in time and scope) XIV. the police can search containers in the automobile if they have probable cause to believe there is evidence of a crime in the container XIII. Minimize level of intrusion b. CONSENT (NO WARRANT OR PROBABLE CAUSE REQUIREMENTS) a. Undercover Operations i. The frisk is grossly intrusive If the item is a container. Once police have probable cause to believe there is evidence of a crime in an automobile. Where police are primarily enforcing public safety. Carried out for caretaking functions pursuant to neutral guidelines or universal practice i. NOT search for evidence ROADBLOCKS (NO WARRANT OR PROBABLE CAUSE REQUIREMENTS) a. must have a warrant iii. If probable cause is established during such frisk. containers. (2) Protection of owners. EXIGENT CIRCUMSTANCES (NO WARRANT OR PROBABLE CAUSE REQUIREMENTS) a. Make sure there is a police policy that takes away officer discretion to stop (ex—every third car is stopped) iii. Drugs: Totality of the circumstances ii. 4 . Consensual conversation while officer or other party is recording is NOT a search ii. the article UNLESS i. Pretextual roadblocks have been held unreasonable d. XII. Scope of consent limits undercover officer's ability to search INVENTORY SEARCHES (NO WARRANT OR PROBABLE CAUSE) a. (the item is evidence of a crime) police may seize c. Police may search the entire automobile if they have probable cause to believe there is evidence of a crime in the car b. or person) is lawfully taken into custody AND b. (3) Prevent lawsuits against police for losing property c. Property (Cars. Evidence i. Drug checkpoint alone is unreasonable because the primary purpose is enforcing criminal law XV. no warrant or probable cause requirements are necessary i. Police must be lawfully conducting a stop and frisk AND b. Containers can be searched if the purpose for the search is a caretaking function. the police can seize the container but must obtain a warrant to open the container AUTOMOBILE EXCEPTION (NO WARRANT TO SEARCH CAR) a. Voluntary under the totality of the circumstances b. Danger to the Public: adequate basis to justify the emergency situation c. Escape: Totality of the circumstances b. (1) Protection of officers.
Magistrate is not neutral XX. Students in public school i. Inevitable Discovery Doctrine—IF the evidence would have inevitably been discovered absent the violation of the Fourth Amendment. on a defective warrant issued by a neutral magistrate. Good Faith Exception 1. Miranda warnings alone do not cure the illegality d. Misleading evidence b. Rule—Evidence obtained in violation of the Fourth Amendment shall be excluded b. Officers would inevitably discovered the evidence linking ∆ to the crime b. Exceptions (WHERE A VIOLATION OF THE 4TH AMENDMENT HAS BEEN ESTABLISHED AND THE ILLEGALITY WAS THE CAUSE OF THE EVIDENCE BEING OBTAINED) i. Exceptions a. SPECIAL NEEDS SEARCHES a. Officers were already looking in the place where the evidence was iii. EXCLUSIONARY RULE a. Time spent at place searched 3. Exception—illegality used to establish probable cause AND grossly intrusive police behavior 3. Illegality was the proximate cause of the evidence being obtained 1.XVII. Whether. Relationship between owner and ∆ 2. Totality of the Circumstances AND b. the evidence is admissible 1. ADMINISTRATIVE SEARCHES a. Independent Source Doctrine—If the search or seizure was independent from any violation of the Fourth Amendment. Search: Whether ∆ at issue had a legitimate expectation of privacy in the place searched i. Problems—opens the door to confirmatory searches BUT is not happening in practice (officers do not try to violate the Fourth Amendment) ii. But for the illegality. Preponderance of the evidence that a. Causation (ILLEGAL SEARCH CAUSES THE SEIZURE OF EVIDENCE OR ILLEGAL ARREST CAUSES CONFESSION) i. Balance school interests with student interests b. Sleepover rule b. reasonable reliance. considering the totality of the circumstances. Seizure—Whether ∆ at issue had an individual property or possessory interests in the thing seized c. No warrant requirement i. the evidence would not have been obtained AND ii. Illegality NOT used to establish probable cause for warrant 2. Balance public interests against private interests XVIII. Suspicionless Drug Testing i. Good faith. Policy—Deter police from violating the constitution STANDING TO CHALLENGE FOURTH AMENDMENT VIOLATIONS a. the independent free will of the ∆ OR an intervening event broke the chain of causation a. the exclusionary rule does not apply 2. the evidence is admissible 1. Balance government interests with individual privacy XIX. Totality of the circumstances 1. 5 . Reasonable individualized suspicion ii.
Probative effect of comparisons must be the comparison. handwriting samples. The Fifth Amendment protects only against compelled disclosure of testimonial evidence.3. fingerprints. 6 . "PERSONS" i. II. One cannot rely on the Fifth Amendment for other people ii. Privilege does not extend to corporations. Police submit clearly insufficient affidavit d. or silence 2. No person shall be compelled in a criminal case to be a witness against himself ELEMENTS A. Silence can be used as evidence against ∆ in a civil case iv. Fifth Amendment is a personal right. or other types of legal business entities EXCEPT sole proprietorships "COMPELLED" i. blood. Witness can be compelled to produce a. Transactional immunity is a complete bar to any future prosecution of the ∆ who is granted immunity B. Fact finder can draw "any reasonable inference" from the ∆'s silence in a civil case "AGAINST HIMSELF" i. not magistrates mistakes FIFTH AMENDMENT I. GENERAL a. and speech comparisons IF b. the Government can compel its production 1. photo lineups. NOT the actual words spoken "CRIMINAL CASE" i. E. C. falsity. Prohibits the Government from compelling individuals to provide incriminating testimony in any proceeding if their answers might tend to incriminate them in an ongoing or future criminal proceeding ii. partnerships. Warrant is facially deficient Policy—only apply exclusionary rule for police misconduct. and perjury—each of which could lead to imprisonment "WITNESS AGAINST HIMSELF" i. Express or implied assertion of fact that could be true or false subjects a witness to the cruel trilemma of punishment for truth. State's use of contempt power is compulsion because it poses substantial punishment on person who claims the privilege—presents the witness with the cruel trilemma of choosing between self-accusation. If evidence is non-testimonial. Immunity takes away the Fifth Amendment Privilege 1. DNA evidence. Silence cannot be used as evidence against ∆ in a criminal case BUT iii. D. c. contempt.
not a right) iii. The leniency is unreasonable iii. Use immunity is not a complete bar to any future prosecution of the ∆ who is granted immunity. Express questioning OR 2. E. not the ∆'s state of mind CONFESSIONS AND MIRANDA a. CONFESSIONS AND DUE PROCESS CLAUSE a. Arrests generally. danger to the public outweighs the ∆'s Fifth Amendment rights ii. Due process clause under the Fifth Amendment is used to exclude confessions where. Voluntary—product of a free and deliberate choice ii.2. but bars the prosecution from using the immunized testimony against the ∆ III. F. Police must advise a suspect of his rights before custodial interrogation b. Police misconduct controls. Knowing—Full awareness of nature of the right AND consequences of abandoning such right 2. 7 . Confessions derived from promises of consideration by the police will be excluded IF 1. IV. Custody 1. under the totality of the circumstances. Policy—Advise every suspect of his rights. under the totality of the circumstances. Interrogation 1. More compulsion is generally tolerated in such circumstances although not freely admitted by the court WAIVER MIRANDA WARNINGS GENERALLY i. False documentary evidence is per se impermissible ii. Silence is not enough to constitute a valid waiver OF D. the ∆ involuntarily confessed i. Knowing AND voluntary waiver of rights 1. Public Safety/Emergency exception applies where. MIRANDA RIGHTS i. Any words or police action which the police should know is reasonably likely to elicit an incriminating response from THIS suspect EXCEPTIONS TO MIRANDA WARNINGS i. Focus on the suspect iii. Right to have attorney appointed if you cannot afford one (not mandatory if police know you can afford an attorney) CUSTODIAL INTERROGATION i. but NOT Terry Stops ii. Police have no authority to give leniency 2. and put every suspect on a level playing field with the police in an inherently coercive atmosphere C. Anything said can and will be used against you in court (consequence. assure waiver of rights is voluntary. Whether. Right to the presence of an attorney during questioning iv. under the totality of the circumstances. the suspect has been deprived of his freedom of action in any significant way (free to leave) a. Functional equivalent of express questioning a. Right to remain silent (Fifth Amendment) ii.
Right to counsel attaches at all critical stages of the proceedings b. Right to Silence—police may continue to interrogate UNTIL ∆ makes an express. The accused in other cases will have the right to counsel IF liberty is at stake. Whether. No Formal Charges—balance the benefit to the individual in having counsel present WITH burden on society to have counsel present at this identification i. Totality of the Circumstances c. Right to counsel attaches in juvenile cases g. exonerate the accused ii. Right to counsel does not attach to administrative parole/probation proceedings unless the issues presented require the presence and participation of an attorney f. Right to counsel does not attach to sentencing proceedings unless issues of sentencing are disputed e. but NOT if money is at stake i. Photographic Identifications generally do NOT require the presence of an attorney SIXTH AMENDMENT I. IDENTIFICATIONS a. 8 . GENERAL a. III. Right to an Attorney—once the right to an attorney is invoked. the police scrupulously honored ∆'s invocation of Miranda rights ii. Gives trial judge choice between appointing counsel and being free to sentence to imprisonment OR forego appointing counsel and be barred from sentencing to imprisonment SCOPE OF THE RIGHT TO COUNSEL a. Permissible suggestiveness i.G. In all criminal prosecutions. Early Identifications—fresh in witness' mind. Independent Source—If witness is able to identify suspect without any suggestiveness and from an independent ability to identify the suspect the evidence of identification is admissible iii. Right to use of experts attaches if competent representation would require the aid of experts EFFECTIVE ASSISTANCE OF COUNSEL a. WAIVER AFTER INVOCATION OF MIRANDA RIGHTS i. unequivocal statement that the right to silence is being invoked iii. Formal Charges—any police lineup after formal charges have been brought requires the presence and participation of counsel i. Right to counsel does not attach to discretionary appeals d. under the totality of the circumstances. The accused in felony cases have a fundamental right to counsel c. Counsel must provide objectively reasonable assistance AND II. police must stop interrogation unless the communication is initiated by the suspect iv. Right to counsel attaches to appeals as of right c. Policy—Prevent suggestive lineups b. the accused shall enjoy the right to have the assistance of counsel b. The accused in misdemeanor cases have the right to counsel IF the benefits of providing counsel outweigh the costs to society of providing counsel d. Policy—right to an attorney is generally a higher right than the right to silence because invoking right to counsel requires additional time before it can be exercised V.
b. The outcome does not prejudicially effect the defendant 9 .
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