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4th Amendment

(1) Was there government action? Police, private citizen acting at the direction of police, public school admins.
(2) Was there a search or seizure?
a. Search: was there an actual subjective expectation of privacy and a reasonably objective expectation of
privacy OR a physical intrusion into a const. protected area in order to gain info.
i. Protected Areas:
1. Persons
a. American citizens of foreign decent 4th amendment protection
b. Foreign citizens lawfully in the US Part of national community?
c. Foreign citizens unlawfully in the US no cases; illegal wont bring attention to
d. Foreign citizens outside the US search done by US gov yes; search done by foreign
state no.
2. Houses Curtilage Dunn four factors: (1) the proximity of area claimed to be curtilage to
the home, (2) whether the area is included within an enclosure surrounding the home, (3) the
nature of the uses to which the area is put, (4) steps taken by resident to protect the area
from observation and people passing by.
a. Excluded: open fields, office stores and commercial buildings, protective sweep,
consent, public view etc.
3. Papers - personal items
4. Effects - cars, luggage, clothing, etc.
ii. Unprotected areas (likely public view)
1. Moles: not a search if (1) a mole listens Hoffa, (2) an agent overheard White (3) a mole
records (Lopez) (4) a mole transmits (On Lee)
2. Third party doctrine no expectation of privacy in what you knowingly convey to another
3. Open fields - people cannot reasonably expect privacy for activities they do outside in
fields, unless it is an area immediately surrounding the home. No reasonable expectation of
privacy (Harlan's test) because (1) open fields do not provide the setting for those intimate
activities that the amendment is intended to shelter from government interference or
surveillance, and (2) If you are lawfully there (then the police likely are too), and you can use
your eyes, the D is not protected under the 4th amendment because everyone can see it.
4. Odors dog sniffs not searches bc not intrusive and only detect contraband, cannot be
used around house.
a. Ariel searches - The public and police lawfully may survey lands from the air (Riley &
b. Garbage - No reasonable expectation of privacy concerns for trash at the curb (Cali v.
iii. Technology
1. (1) using sense enhancing tech (2) to gain intimate info of the inside of home (3) that could
not have been obtained w/o physical intrusion, (4) into a const. protected area = search
(Kyllo v. US)
2. Pen registrars, not a search b/c limited capacity (smith v. Maryland)
3. GPS movement tracking in public is not a search. (US v. Knotts)
4. Cannot place GPS on a car (its a personal effect) (US v. Jones)
5. Cannot use GPS to see movement within a home (US v. Karo)
b. Seizure: a meaningful interference with an owners possessory interest and a reasonable person would not
feel free to leave or terminate the exchange.
i. Seizure of a person - under the totality of circumstances, a reasonable person would feel that he
was not free to leave or decline the officers request. Police pursuit is not a seizure. There must be a
physical application of force by the officer or a submission to the officers show of force. It is not
enough to just order a person to stop. (Terry stop)
ii. Arrest needs PC.
1. Warrant not necessary: (1) when arresting in a public place, (2) when the O has PC to
believe that a felony has been committed and the person before her committed it, (3) when a
misdemeanor was committed in Os presence.
2. Warrant necessary: when arresting in S home (non-emergency). Os executing the warrant
may only enter if there is reason to believe S is there. Warrantless searches of home always
unreasonable, unless exigent circumstances, burden on state.
3. Home of 3P: absent exigent cir. Os executing an arrest warrant may not search for S in the
home of a 3P w/o abstaining a separate search warrant for 3Ps home. If they do not, arrest is
valid, but evidence found in house is not.
iii. Stop and Frisk see below, no PC, but RS.
(3) Was the search or seizure reasonable?
a. Executed with warrant?
i. Supported by PC? (if not PC, must be an exception with RS)
1. PC: Exists where the facts and circumstances within the Os knowledge and of which they
have reasonably trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in he believe that an [offense has been or is being committed/ evidence
subject to seizure will be found in the place to be searched].
2. RS: - It requires something more than a vague suspicion (e.g., it is not enough that the
detainee was in a crime-filled area but full probable cause is not required. Whether the
standard is met is judged under the totality of the circumstances. Unprovoked flight or
evasion is RS when coupled with factors such as high crime area. For strip search at school
need RS to search that specific body part.
3. Source of Suspicion: (1) informant tips veracity (credibility + reliability) & basis of
knowledge (look totality of circumstances). Can use self-verifying circumstances.
ii. If no PC, did the officers rely on the defective warrant in good faith?
1. There are 4 elements of warrants: (1) Must be based on probable cause, (2) Support by oath
or affirmation, (3) Must be issued by a neutral and detached magistrate, (4) Must describe
the place to be searched, and the person or thing being seized.
iii. Was the warrant properly executed?
1. First, the officers must knock and announce (unless exigent circumstances apply or police
have RS that it would be (1) dangerous, (2) futile, or (3) would inhibit the effective crime
investigation). Then must wait 15-20 seconds.
2. Once officers are lawfully on the premises to execute a warrant, various search principles
a. The police may search containers large enough to hold the criminal evidence for
which they are searching.
b. They may seize an object not described in the warrant, if they have probable cause
to believe it is a seiz-able item (contraband, or fruit of the crime, instrumentality or
c. Information that becomes available to officers immediately before or during the
execution of a warrant may require them to cease or narrow their search,
notwithstanding the dictates of the warrant.
3. ***A warrant may authorize the search of a person but it must be explicit. ***
4. Pursuant to the execution of a valid warrant to search for contraband, the police may
detain occupants of the premises while a proper search is conducted. 3 justifications: (1)
Avoiding flight of an occupant with evidence sought, (2) To reduce the risk of bodily harm to
officers and others, and (3) To facilitate the search by reducing the detained occupants to
open locked containers or doors.
b. Executed W/O warrant?
i. No Justification
ii. Consent?
1. Consent must be voluntary and obtained from someone with real or apparent authority to
give consent.
a. Voluntary look at the totality of circumstances
2. The search cannot exceed the scope of the consent; cannot enter if co-occupant objects in
person; S does not have to know consent can be revoked. Must object at threshold. Rev. has
to be clear & unambigious.
iii. Plain View?
1. Police can const. seize any item (even if its is not described in the warrant) if: (1) If officer is
lawfully present, (2) The object is in plain view or sight, (3) The police have lawful access to
the item, (4) Incriminating character immediately apparent (he has PC to seize it no further
inspection necessary).
2. It is triggered only after the officers are lawfully on the premises does not provide
justification for entry.
iv. Pre-textual stops?
1. Officers subjective intent does not matter as long there is an objective reason could pull the
driver of a car over.
v. Need PC
vi. Exigent circumstances?
1. A warrantless intrusion may be justified by (1) Hot pursuit of a fleeing felon, or (2) Imminent
destruction of evidence, or (3) The need to prevent S escape, or (4) The risk of danger to the
police or to other persons inside or outside the dwelling. (PC) can only do what reasonably
necessary to eliminate exigency.
2. The exception does not allow warrantless entry into a home to make an arrest for a minor
vii. Search incident to lawful arrest?
1. A police officer who makes a lawful custodial arrest, may conduct a contemporaneous
warrantless search of:
a. The arrestees person, including (1) The pockets of the arrestees clothing, and (2)
open containers found therein, and (3) containers immediately associated with a
person like a purse or bag if they are large enough to conceal a weapon of evidence
of a crime. So long as arrest has PC (warrant), no further justification is needed for
search. If containers exigency goes away, need warrant, PC not enough.
b. Area within the arrestees immediate possession or control
c. If the arrest occurs in a home, they may conduct a warrantless search of closets
and other spaces immediately adjoining the place of arrest from which an attack
could be immediately launched (protective)
i. If RS exists that danger from elsewhere in the house, O can inspect but only
so long to dispel RS.
ii. Need warrant for closed containers, no exigency.
d. If police arrest a recent occupant of a vehicle, they may search the passenger
compartment (& containers) of the vehicle only if S unsecured, and even if secured if
the officers have RS to believe that evidence relevant to the crime of arrest might be
discovered there.
i. Recent occupants of a car can also be searched, in addition to current
ii. Police can search (1) glove compartment, (2) consuls, (3) other receptacles
and the like found in the passenger compartment, and (4) all containers
found in the passenger compartment. The trunk is excluded.
1. An automobile stop constitutes a seizure not only of the automobiles driver, but also any
passengers as well.
2. The automobile exception applies if a car if readily mobile, and PC exists to believe
it contains contraband or other seizable evidence the 4th amendment allows police
to search the vehicle. PC search of a mobile home without a warrant is okay, if the mobile
home can be used as a vehicle
3. Open Containers - If the automobile exception applies, it justifies the search of every part
of the vehicle and its contents, that may conceal the object of the search including all
containers found in the car. The police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is contained. Even the
trunk. Open or closed containers. Limit police may only search where item may be
ix. Inventory search?
1. If there is PC to search the car, the police have the option of searching it alter on the scene
(automobile exception) or impounding it and searching it at a later time.
x. Need RS
xi. Terry Stop and Frisk?
1. Police have the authority to briefly detain a person for investigative purposes even if they
lack probable cause to arrest. To make such a stop, police must have a RS supported by
articulable facts of criminal activity or involvement in a completed crime. [Terry v. Ohio] RS to
believe that the detainee is armed and dangerous, they may also conduct a frisk (a limited
search) to ensure that the detainee has no weapons. It also applies to places S can get
xii. Balancing Test: Special Needs/Public Safety; must be specific (sobriety checkpoints), not general
crime control.
c. If Search and seizure was unreasonable, do we exclude evidence?
i. ER Does not apply: To grand jury, Preliminary hearings, Sentencing, Probation hearings,
Deportation, Civil trials, Impeaching testimony of defendants
ii. Good Faith Exception to ER: officers had good-faith reliance on the warrant and a reasonable,
well-trained officer would have relied on it. Assuming a competent majistrate.
iii. Indep. discovery exception to ER/Inevitable discovery: Indep. source doctrine applies to
evidence discovered for the first time during an independent, lawful search, and also to evidence
initially discovered during or as a consequence of an unlawful search but later discovered
independently from activities untainted by the initial illegality; Inevitable discover = no ER
iv. Attenuation: Evidence obtained through illegal police conduct must be excluded at trial, as fruit of
a poisonous tree, the connection between the illegal police conduct and relevant piece of evidence
may become so attenuated as to dissipate the taint, then that evidence is admissible. Remember
that the person bringing the claim must have standing.
1. Consider factors: length of time elapsed, seriousness of the initial misconduct, existence or
absence of intervening causes, existence or absence of acts of free will.
2. Test: (1) Is there a poisonous tree/illegal search, (2) Is the evidence fruit? (3) Has there
been attenuation?
a. A new crime always = attenuation
b. Discovery of a warrant = attenuation (arrest now lawful; no poisoned fruit)
v. ER does not apply to violations of the knock & announce rule
vi. ER Does not apply when officer reasonably relies on records unless systematic & widespread
vii. ER does not apply to reasonable reliance on existing laws
(4) Does D have standing?
a. A person can complain about an evidentiary search or seizure only if it violates his own reasonable
expectations of privacy.
b. The Court has held that a person has a reasonable expectation of privacy any time: (1) She owned or had a
right to possession of the place searched; (2) The place searched was in fact her home, whether or not she
owned or had a right to possession of it; or (3) She was an overnight guest of the owner of the place

5th Amendment
Was confession obtained in violation of DP?
(1) Involuntary under the totality of circumstances (overborne will + __), or
(2) product of coercive police conduct (shocks the conscious).

Was the confession obtained in violation of Miranda?

(1) Custodial interrogation

a. Custody
i. Applies to all crimes but traffic stops.
b. Interrogation
i. Occurs when Police either expressly question a S in custody (or functional equivalent) or,
ii. When they engage in any actions of dialogue that the police should know is reasonable likely to elicit
and incriminating response from the suspect.
(2) Were adequate warnings provided?
(3) Was there a valid waiver?
a. Knowing and intelligence (unambigious)
i. Unmirandized admission is suppressed, everything after is allowed if knowingly & voluntarily made.
b. Voluntary
i. Cannot recite Miranda after interrogation takes place and elicited an unwarned confession.
ii. When two rounds of interrogation (before and after Miranda) look at the following to determine if
second confession comes in or if it gets suppressed because its like the first (which was in violation).
Two separate is ok, two step is not.
1. Time; location; interrogator; explicit explanation; referring back; extend of unwarned.
c. Can also waive right to counsel through words and conduct, not just express statement. Gov must show: (1)
that it provided the warning, (2) that S understood, and (3) that S answered questions anyway.
(4) Did S invoke the right to silence of counsel?
a. Silence, was it honored?
b. Counsel, did S initiate further comm.?
i. Once shield is up, it does not go down unless S initiates convo about crime.
1. If he confesses no further waiver is needed.
2. If he talks about wanting to talk waiver is needed.
3. If he talks about random this is not initiation
ii. 14 day period benefiting from counsel shield once it is up (invoked).
iii. Invocation cannot be ambiguous.
(5) Do any of the exceptions apply?
a. Public Safety
i. No dependent on subjective belief of O.
ii. Kidnapping; bomb, etc.
b. Impeachment
i. Suppressed Miranda may be used for impeachment.
(6) Fruits of the poisons tree (5th applies only to testimony)

6th Amendment

(1) Adversary judicial proceedings


(1) Deliberately elicits from D

(2) Regarding the triggered offense (look at officer intent; must be the same offense, i.e same elements)
(3) Outside the presence of counsel (includes lineups)
(4) Without a waiver (waiver must be knowing and voluntary; S must know being indicted)
- The 6th amend is offense specific, so invocation of 6 th in one crime does not invoke Miranda right to counsel in another.
However, waiving Miranda waives 6th right to counsel.
- An informants testimony, elicited in violation of the 6 th amend (a mole plated in jail while awaiting trial) is admissible to
challenge S inconsistent testimony.
o The right to have a lawyer present only applies where there is a deliberate elicitation by O & its agents regarding
the charge.


- An in-court witness ID of S must be offered independent of pretrial identification obtained without notice to and
participation of Ds counsel.
- Counsel must be present when the action cannot be refuted in court (lineups), but not when it can (fingerprints, blood
samples, and clothing).
- Reliability of eyewitness ID is only an issue when procured under unnecessarily suggestive circumstances arranged by
law enforcement.