I. The Fourth Amendment

Violation of REP: Certain Technology

When the government uses a device that is not in general public use, enabling them to see "through the walls" of a home, this is a search because it intrudes upon a REP.

Seizure of Persons

A person is seized when, as the result of government action, a reasonable person in his position would not feel free to leave or otherwise terminate the police encounter Arrest is a "maximum" seizure, indicated by police action that initiates the criminal prosecution process (taking the suspect to jail).

Seizure of Persons: Terry Stop

A euphemism for a "non-arrest" seizure. Between a routine police encounter and arrest is a Terry Stop. - A Terry Stop is a "brief investigatory seizure" because police require the suspect to interact with them, therefore triggering the Fourth Amendment. - Is not the initiation of criminal action, it is for the sole purpose of investigating a "reasonable suspicion" crime is about to, or has recently occurred. - The permissible duration of a Terry Stop is the time necessary to confirm or deny the suspicion. (a) If confirmed, the suspicion blossoms into probable cause, justifying arrest. (b) If denied, the seizure must terminate.

4th Amendment: Search

A search triggers the reasonableness requirement of the Fourth Amendment and is defined as any government (1) "Investigatory trespass" against a textual 4th Am interest (person, papers or effects) OR (2) Intrusion into a reasonable expectation of privacy (REP).

Seizure of Property

For property to be seized, police must take some action that results in a "meaningful interference with a possessory interest." a. If police take control of property, it is seized b. If police place something on the property (like a beeper) that does not interfere with the owner's use of the property, it is not seized.

The 5th Amendment

Prohibits coercion of confessions, unreliable identifications, and provides a privilege against compelled self-incrimination

The 4th Amendment

Protects the people from unreasonable searches and seizures, and requires that warrants be supported by probable cause

Applying the Fourth Amendment to Searches: Searches pursuant to a warrant

a. The scope of the search is limited to the premises described in the warrant. b. Nonetheless, contraband not named in the warrant may be lawfully seized under the "plain view" doctrine: so long as the police search WITHIN the scope of the warrant. c. A location owned by non-suspects may be searched upon obtaining a warrant d. A search warrant for a premise carries with it the right to detain occupants during the search, but not the right to search those persons, UNLESS they're listed in the warrant.

Reasonable Suspicion

is defined as a belief based upon articulable information more than a mere hunch used by a reasonable person or police officer that the suspect has or is about to engage in illegal or criminal activity. Reasonable suspicion is a level of certainty that will justify only - a brief investigatory seizure (a Terry Stop) or - a cursory protective search (a Terry Frisk)

The Terry Search (Frisk)

(1) A Terry Frisk is a cursory protective search for weapons or some other instrumentality that creates an imminent danger to the officer or others in close proximity. (2) A Terry Frisk is justified only by reasonable suspicion the suspect is armed and dangerous, and is not automatically reasonable just because police conduct a Terry Stop. (3) An officer may seize the weapon without a warrant pursuant to the "plain touch" variant of the plain view doctrine. (b) However, if the officer feels something he knows is not a weapon but merely suspects is contraband and has to MANIPULATE the item to establish PC to seize then this manipulation exceeds the scope of the Terry Frisk and the seizure if therefore unreasonable.

Exigent circumstances allowing a warrantless entry into the suspect's home to execute an arrest requires the following:

(1) An arrest attempt outside the home is thwarted because the suspect retreats into the home (2) There is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence (3) The arresting officer is in "hot pursuit" and has probable cause to effect a valid arrest of the suspect (4) The offense is more serious than a minor misdemeanor. (5) The officer did not unlawfully create the exigency.

Other Limitations to the Exclusionary Rule

(1) Impeachment: The exclusionary rule does not apply to the use of tainted evidence to impeach the D's testimony (2) Good Faith Exception: When police act in good faith reliance on a warrant that is subsequently ruled invalid, the evidence seized will not be subject to exclusion.

Knock and Announce Rule

(1) Police must normally "knock and announce" their identity before entering a home to execute a warrant. (2) Knock and announce is not required if police have reasonable suspicion to believe that doing so will endanger officers or lead to the destruction of evidence or flight of the suspect. (3) *The violation of the "knock and announce" rule violates the Fourth Amendment, but does not trigger the exclusionary rule.

Terry Stops: Reasonable suspicion that crime is about to or has just occurred may be established by:

(1) Police observations or eyewitness reports (2) Headlong flight from police in a high crime neighborhood (3) An informant's tip coupled with police investigation that corroborates the accuracy of the informant's predictions.

Seizures of Property Plain View requires

(1) The police are in lawful vantage point to observe the item (2) The incriminating nature of the item is immediately apparent, and (3) The officer has lawful access to the point of seizure. *There is no "inadvertence" requirement: Even if he police suspect they might find an item while executing a search warrant that they did not list in the warrant, if it comes into plain view the seizure is reasonable.

To challenge the search or seizure, the defendant bears the burden of rebutting this presumption by proving:

(1) The warrant was not based on valid probable cause, or (2) The magistrate was not neutral or detached (3) The warrant failed to describe with particularity the thing to be seized or the place to be searched.

A defendant does not have a reasonable expectation of privacy in the following items because they have all been knowingly exposed to the public:

(1) handwriting exemplars (2) voice exemplars (3) bank records (4) pen registers, which record telephone numbers dialed (5) information on an email sent through an ISP (but the contents of the email are within a REP); (6) conversations the suspect believes are private that the police record with the consent of the other party to the conversation (a false friend) (7) Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields (8) Naked-eye observations of private property by air so long as police comply with flight limitations (9) Aerial photography of the large fenced in area around an industrial complex (10) Discarded property, such as commingled garbage and abandoned rental premises.

Standing: Overnight Guest

(a) A defendant who is an overnight guest in another's home has standing to challenge the search of the home. (b) Short-term commercial visitors, or non-overnight social guests: do not have standing to complain about a search of the host's home.

Administrative Searches

(a) An administrative search is really best understood as an "agency compliance inspection" whereby compliance with administrative regulations or health and safety codes is verified. (b) Because the primary purpose of these searches/inspections is not discovery of evidence of crime: they are normally justified by reasonable suspicion. (c) Normally, agency inspectors will also be required to obtain an administrative warrant to search private homes or businesses, with some exceptions: 1) Airport Screenings 2) Border Searches

A special needs search or seizure must be:

(a) Based on a fixed formula that: deprives individual officer of the discretion to select the subjects. (b) Narrowly tailored in scope to address the specific threat. (c) Be conducted in a location and a manner that minimizes citizen anxiety.

Standing: Passengers in a car

(a) Passengers in the car do not have standing to complain about the search of the car. (b) However, when an automobile is seized, all occupants in the automobile are seized, even if they are just passengers with no ownership or possessory interest in the

Applying the Fourth Amendment to Seizures: Seizures of Property

- A warrant based on probable cause is presumptively, but not always, required to justify the seizure of property. - No warrant is required if the property is in the officer's "plain view"

Third-Party Consent

- Any person who has joint control or use of shared premises may consent to a valid search, and any evidence seized in plain view may be used against the other occupants. - Such consent applies to common areas, but not private, reserved areas where the D has exclusive control. - Police reliance on third party consent is reasonable so long as the person granting the consent has actual authority over the place searched, or a reasonable officer would believe the person had such authority. - Police may not reasonably rely on third-party consent when the other resident is present and objecting.

Consent

- Consent is an exception to both the warrant and probable cause requirements. - If an individual waives her right to privacy by consenting to a search: the search is reasonable, even if the police officer asks for consent based on a pure hunch. - An individual has an absolute right to refuse to grant consent, to withdraw consent once granted, or to limit the scope of consent.

If a suspect is arrested in a home, the scope of SITLA is limited to the area within his lunging distance and does not include the authority to search the entire house.

- However, if police have a reasonable suspicion that others in the home may put them at risk, they may conduct a cursory protective sweep of other parts of the home to rule out the risk. - the scope is limited to places where a person may be hiding.

When an arrest is affected while the defendant is in a car or has immediately exited the car, a special rule applies to the scope of the SITLA

- Like any other arrest the police may automatically search the person of the arrestee. - If the arrestee has genuine access to the interior of the car after being placed under arrest, the SITLA extends to the interior of the car and all containers within the interior.

Applying the Fourth Amendment to Seizures: Arrest

- Probable cause is always required for an arrest - An arrest warrant is required before police can arrest an individual in his own home, absent exigent circumstances or consent.

Standing

- The defendant asserting the Fourth Amendment remedy of exclusion must show that the unreasonable search or seizure intruded on his PERSONAL constitutional rights. - A defendant may not vicariously assert someone else's constitutional rights

Good Faith Exception extended

1) An arrest in reliance on a warrant that should have been purged from the system by the police: No exclusion even when there is police error so long as the error is isolated negligence attenuated from the point of arrest. 2) A search conducted in reliance on a judicial precedent that is changed prior to the cases coming to trial.

Applying the Fourth Amendment to Searches: Exceptions to the Warrant Requirement

1) Searches Incident to a Lawful Arrest (SITLA) 2) Automobile Exception 3) The Special Needs Requirement 4) Consent 5) Hot Pursuit 6) Exigent Circumstances 7) The Terry Frisk 8) Administrative Searches

Exceptions to Fruit of the Poisonous Tree exclusion

1) independent source 2) inevitable discovery 3) attenuation

Fruit of the Poisonous Tree Doctrine and Miranda violation

A Miranda violation does not qualify as a "poison tree" and cannot be invoked as the basis to exclude evidence derived from the inadmissible statement. The only consequence of a Miranda violation is inadmissibility of the confession in the prosecution's case-in-chief.

Searches Incident to a Lawful Arrest (SITLA)

A warrantless search of the arrestee and the area within his immediate control (wingspan or lunging distance) is automatically permitted. - SITLA is triggered by a lawful arrest, which means an arrest based on probable cause. - Although the rationale for the SITLA is protection of the arresting police officers and preservation of evidence, there is no requirement to individually justify each SITLA - SITLA is: automatic!!! - If a suspect is arrested in a home, the scope of SITLA is limited to the area within his lunging distance and does not include the authority to search the entire house.

Exclusionary Rule: Fruit of the Poisonous Tree Doctrine

Any additional evidence derived from the initial illegality, including oral statements and physical objects falls within the scope of the exclusionary rule as tainted fruit of the poisonous tree. - Always ask if there is a "but for" connection between the evidence the prosecution seeks to admit and a violation of the defendant's constitutional rights

Search: "Investigatory trespass"

Any government activity that intrudes upon the target's person, home (to include the curtilage), papers, or effects for the purpose of finding or gathering evidence of a crime qualifies as a search within the meaning of the Fourth Amendment - For purposes of an investigatory trespass, the home includes areas within the curtilage, but NOT areas in "open fields",

The Special Needs Doctrine: The Border Exception

Customs officials may, with no suspicion or cause, as an incident of national sovereignty: (i) Stop vehicles at permanent checkpoints located at or near the border (ii) Conduct "routine" searches of people and property.

inevitable discovery

Evidence that is obtained through a poison tree will still be admissible if the police establish they would have inevitably discovered the evidence through an independent source.

attenuation

Evidence with a "but for" link to a poison tree may be so distant from the initial illegality that the "taint" of the poison is "purged", and therefore the evidence is inadmissible Factors supporting attenuation include: a) different location b) passage of time c) different officers d) a valid Miranda waiver

independent source

If the evidence is obtained from a lawful independent source it is admissible, even if the police acted illegally to confirm the location of the evidence

Fourth Amendment Remedies: Standing and the Exclusionary Rule:

In order to claim the remedy of exclusion, three requirements must be satisfied: a. The unreasonable search or seizure must trigger the remedy of exclusion; b. The defendant claiming the remedy (seeking exclusion) must have standing; c. The facts do not support applying an exception to the exclusionary rule

Automobile Exception to the Warrant Requirement

Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant: so long as they have PC - The warrant exception applies to all containers within the vehicle. - This means that if police have probable cause to search inside a closed container once that container is placed in the vehicle or located in the vehicle, it may be opened and search without a warrant.

Exigent Circumstances

Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in imminent: (a) destruction of evidence, or (b) escape of the accused, or (c) imminent risk to the police or others in the area (especially in the home) *The procedure for seizing the evidence is: reasonable and does not shock the conscience.

PC: Informants

Probable cause may also be based on a tip from a confidential or anonymous informant. The totality of the circumstances test is used to assess the reliability of an Informant's tip to establish probable cause. The factors considered are: (a) Veracity of the informant (does he have a positive track record); (b) Basis of knowledge (how does the informant know the activities of the suspect) (c) Police investigation that corroborates the facts in the tip and establishes the accuracy of the informant's predictions

The 6th Amendment

Provides a person formally accuses of a crime the right to assistance of counsel during all critical states of the adversarial process (trial, preliminary hearing, police questioning, and physical identification proceedings)

Applying the Fourth Amendment to Seizures: Terry Stops

Reasonable suspicion that a crime is in progress or has just been committed by the suspect justifies a brief investigatory seizure of the suspect (a Terry Stop) to confirm or rule out the suspicion

The 4th Amendment: Government Action

The Fourth Amendment applies only to government, not private, conduct. - Silver Platter Doctrine: When a private party acting on his own acquires evidence that the government later seeks to introduce in a criminal prosecution, it does not trigger the 4th Amendment

The 4th Amendment: Seizure

The Fourth Amendment's "reasonableness requirement" is triggered by any government seizure of a person or property.

Automobile Exception to the Warrant Requirement: Scope

The permissible scope of the search is dictated by the probable cause, which prohibits police from automatically searching the entire vehicle. EXAMPLE: Police have probable cause to believe suspect is transporting a stolen 50" flat panel television in the trunk of his car. Police may stop the car and search for the television without a warrant. However, they may only search in parts of the car where the suspect could store the television.

The Special Needs Doctrine

The primary purpose of a special needs search or seizure: must be to protect the public from an immediate danger. (a) If the primary purpose is: general crime control or discovery of evidence, this exception is inapplicable. (b) Common special needs checkpoint searches include sobriety checkpoints, searches for recently escaped prison inmates, counter-terrorism checkpoints, and checkpoints to search for suspects of a recent crime.

Probable Cause

is "fair probability" defined as facts and circumstances that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).

A search and seizure must be...

reasonable in order to comply with the Fourth Amendment - If police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness - A search or seizure without a warrant is presumptively unreasonable, the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement

Search: Reasonable Expectation of Privacy (REP)

requires that: a. The defendant manifests a subjective expectation of privacy by making an effort to shield the thing or the activity from the public, and b. The expectation is objectionably reasonable because it is an expectation society is willing to recognize c. There is no reasonable expectation of privacy when the objects to be seized are held out to the public. d. Police use of animals trained to detect only contraband does not qualify as a search (unless the police commit an investigatory trespass to get the animal to the location of detection.)

The Substantive Component of Reasonableness

the reasonableness of a search or seizure will require police to establish individualized suspicions that amounts to either probable cause or reasonable suspicion