Criminal Procedure

Two Broad Inquiries of Standing that Courts Consider

1st -Whether the proponent of a particular legal right has alleged injury in fact (constitutional rights must be violated, not merely damaged by the introduction of incriminating evidence). 2nd- Whether the proponent is asserting his own rights and interests rather than basing his claims for relief upon third parties

Right to Counsel Distinctions:

5th Amendment • Custody specific • Any offense or topic • Anytime 6th Amendment • Deliberately elicited • Offense Specific - custody not required • Adversarial process - commitment to prosecute...e.g. arraignment, indictment, Not just arrest only • The accused don't need to be in custody

Where the original violation is a failure to render Miranda warnings, rather than a Fourth Amendment violation, does the later provision of Miranda warnings purge subsequent statements of the taint?

The Court in Oregon v. Elstad, said yes.

Fourth Amendment

"To be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Requires a warrant based upon probable cause for a search or arrest

Anonymous Tips- Reasonable Suspicion

Anonymous tip that a person is carrying a gun is insufficient, by itself, to justify a Terry stop and frisk

Subpoenas

Generally not considered a search or seizure unless the subpoena is overly broad.

Searches and Seizures of a home without a warrant are presumptively...

Invalid.

Places and Level of REP

Most- 1. Home 2. Curtilage Least- 1. Public (unless you create REP as in Katz) 2. Open Fields

Reliability Prong

1. Whether the informant personally observed or participated in the activities reported in the tip 2. Was the tip so detailed that the informant must have 1st hand knowledge 3. Whether the tip predicted future illicit behavior and corroborated by additional evidence (hypo)- predicting innocent behavior

Reasonableness Factors- Use of Force

1. The severity of the crime 2. The threat to police officer and public safety 3. The suspect's flight or resistance

Credibility Prong

1. Was the tip against their interest—did they implicate themselves when they gave the tip? 2. Whether the informant had given prior accurate tips 3. Whether the informant had a reputation for truthfulness

US v. Robins- Contemporaneous/ Wallet

The Eight Circuit Court of Appeals invalidated the search of a wallet that police had left at the place of arrest and returned for after the arrest was completed. The court held that the government was unable to establish that he search of the wallet was contemporaneous with the arrest.

Three situations where objective reasonableness should not be found

1. Where a judge or magistrate wholly abandons his or her role as a neutral and detached actor 2. Where warrant application is completely lacking in indicia of probable cause 3. Where the warrant is facially deficient in failing to particularize the place to be searched or things to be seized

When is consent not voluntary? Kaupp v. Tx.

"Okay" is not a showing of consent- he was an adolescent and woken in the middle of the night by police saying "we need to talk" The fact that the person did not resist arrest is not evidence of consent The test is an objective one, and stressing the officers' motivation of self-protection does not speak to how their actions would reasonably be understood

Examples of circumstances that might indicate a seizure (even where the person did not attempt to leave):

Threatening presence of several officers Display of a weapon by an officer Physical toughing of the person The use of language or tone of voice indicating that compliance with the officer's request might be compelled

Factors to determine whether a person is an "intention instrument or agent of the government

1. Whether the government knew of and acquiesced (agreed) in the intrusive conduct, and 2. Whether the private actor's purpose was to assist law enforcement efforts rather than to further his own ends.

Police can search without a warrant if...

(1) probable cause for the search or seizure exists and (2) there are sufficient exigent circumstances to justify the warrantless activity • Balancing of interests: severity of intrusion v. the severity of the criminal activity • Warrantless entry in a home based on exigent circumstances is unconstitutional if the offense is minor (traffic violation)

Warrantless inspections of a commercial entity are permitted if...

(1) the entity is part of a "closely regulated industry", is (2) a "substantial government interest", the inspections are (3) "necessary to further [the] regulatory scheme'. "A State can address a major social problem both by way of an administrative scheme and through penal sanctions. (Junk Yard Search Case)

Reasonable Expectation of Privacy: Two Part Test

1) A person must have exhibited an actual (subjective) expectation of privacy 2) The expectation be one that society is prepared to recognize as reasonable (Katz- Phone Booth- met the test)

Elements for Search Incident to Arrest

1) Actually effectuated custodial arrest 2) Limited in Scope 3) Applies to containers 4) Contemporaneous 5) Probable cause to seize items - probable cause that the item is contraband, or a fruit, instrumentality, or evidence of a crime 6) Applies to cars - Gant 2 part tests 7) Protective Sweeps

The Supreme Court has limited the application of the exclusionary rule in two ways

1) It has narrowed the reach of the fruit of the poisonous tree doctrine. Three limitations: a) Inevitable Discovery b) Independent Source c) Attenuation of the Taint 2) the Court has created several broad exceptions to the exclusionary rule itself.

Use of Other Psychological Techniques

1) Pressure tactics: • The use of psychological pressures, aside from lengthy interrogations and deprivation of bodily needs may render a confession involuntary. • In determining whether such pressures overcame the defendant's will, courts consider characteristics such as the defendant's age, ability to understand, and psychological profile. 2) Deception: • In most jurisdictions, deception alone does not render a confession involuntary, but constitutes one factor among many to be considered within the totality of the circumstances. doctor who purported to be present in order to give the suspect medical relief. 3) Promises of Leniency • Promises of leniency may also be considered in determining voluntariness. • Each state varies on issue o Some states have strict prohibition against promises o Others prohibit only specific promises made in exchange for a confession and are involuntary o Some cts refuse to omit confessions unless they were induced by promises that would likely influence the defendant to speak untruthfully • Generally, officers words of comfort and frequent assurances made to make a D feel more comfortable about speaking will not render a confession involuntary if Miranda given and D is knowledgeable about confession • Under totality of circumstances, If D sought a promise of leniency as a precondition for confession its less likely to be involuntary than confessions made after police initiates the promise

3 Basic Requirements for Warrants

1) Probable cause 2) Supported by affidavit that is given under oath 3) Must be particularized

How to determine whether the issuance of a warrant was constitutional under the 4th Amendment

1) Was the warrant application sufficient? • Was there an affidavit? • Was the affidavit sworn under oath? • Did the affidavit establish probable cause? 2) Was the warrant itself proper? • Was the warrant written out by a neutral and detached magistrate? • Was the warrant sufficiently particularized? 3) Was the execution of the warrant reasonable? • What did the police do when they served the warrant? • Did they provide a copy of the warrant? • How did they treat the person?

5th Amend right to counsel is custodially specific. So... can only ask questions if...

1) she initiates, 2) they allow her to consult with counsel, 3) she is released, or 4) there is a 14 day break in custody

3 Ways Police Develop Probable Cause

1) through personal observation 2) through other police officers ---police functions as an institution/collective knowledge doctrine • an officer can act on the orders of another officer as long as the officer giving orders has probable cause • this include an arrest based on a valid warrant obtained by another officer who had probable cause - the arresting officer need not beware of the facts establishing probable cause BUT cannot act on non-communicated info 3) through a civilian - an informant

4 Ways to challenge a statement

1. 4th- Was there an illegal search or seizure, i.e., violation of the 4th Amendment? • If there was a violation of the 4th Amendment, continue with taint Analysis • Perjure of the taint: If it is so far removed from the taint, then the statement will come in under the exclusionary rule Considerations: a. Miranda (not immediate perjure of the taint); 2. Temporal proximity of the arrest and the statement; 3. Intervening events (i.e. voluntary confession); 4. Purpose and severity • Statement may still come in for purposes of impeachment • Assuming the fruit of the poisonous tree doctrine applies, the admissibility of evidence discovered as a fruit of an involuntary confession would turn on the issues of independent source, inevitably discovery or attenuation of the taint. 2. 5th- Was the statement voluntary under the Due Process Clause of the 5th Amendment? • If statement is not voluntary, the statement IS NOT coming in for impeachment purposes 3. 5th- Was the person compelled to testify against themselves in violation of Miranda (5th Amendment- Right to counsel)? • Statement may still come in for purposes of impeachment 4. 6th Amendment Right to Counsel (Massiah Doctrine)? • Statement may still come in for purposes of impeachment

Good Faith Factors (case specific application)

1. Consider all of the facts and circumstances known to the individual officers involved in the case 2. Asking whether a reasonable officer, who possesses these facts and "reasonable knowledge of what the law provides," would have relied on the warrant

Recognized areas of special needs exceptions

1. Health and safety inspections 2. Pervasively regulated industries 3. Drug Testing (Children, adults in safety sensitive contexts and adults not in safety sensitive contexts) 4. Searches of Probationers/ Parolees 5. DNA Profiles 6. Roadblocks 7. Searches and Seizures by Customs and Border Patrol Officers 8. Inventory Searches

2 Steps for determining whether a search or seizure qualifies as a special need

1. Is the governmental purpose primarily regulatory or for criminal prosecution? 2. If regulatory, the court still must balance the regulatory interest against the person's liberties that are being infringed A. the effectiveness of the chosen means in attaining the states' goals B. the availability of other, less restrictive alternative (not necessarily the least restrictive) means for pursuing those goals

Standing- Rakas 2 Part Test

1. Is there a legitimate REP in the place searched or a possessory interest in the property seized? i. Ownership: demonstrate that the defendant had exercised complete dominion and control over, and the right to exclude others from those areas (lack of ownership - Rakas case) ii. Authority: The defendant must be legally authorized to occupy the premises searched. 2. If yes, then was the seizure or search lawful?

Informants- 2 things to consider

1. Is this a known informant? 2. Does the tip predict future illicit behavior? If yes, may be sufficient to establish reasonable suspicion.

Individuals have lesser expectations of privacy in vehicles as opposed to homes or offices because:

1. Its function is for transportation 2. Cannot escape public scrutiny- contents are in "plain view" 3. Vehicles are a heavily regulated industry

Distinctions between Stops and Arrests

1. Length: stops must be brief. 20 min detention was a stop and a 90 minute detention was an arrest (Terry v. Ohio- stop must be brief and arrest must be on scene) 2. Place: if they put you in the cop car, still just a stop. But if they take you elsewhere, an arrest (e.g. office, police station). • Taking a suspect from the public area of an airport into a small room constituted an arrest • Detentions that move beyond the immediate vicinity of the stop are likely to be considered arrests. • Forcibly taken to a stationhouse/ police headquarters constitutes an arrest.

To determine whether a mobile home is more like a car or residence, evaluate the following factors...

1. Location- is it in a temporary place or permanent (on the road) 2. Whether it is readily mobile or stationary 2. Licensed- is it registered to drive 3. Whether it is connected to utilities 4. Whether it has convenient access to a public road

Consent- Exception to the Warrant Requirement

1. Must be voluntary 2. Must be obtained from someone with authority: actual or apparent 3. The scope of the search cannot exceed the scope of consent given 4. Was the consent ever withdrawn

Miranda Rights

1. Right to remain silent 2. Anything he says can or will be used against him at trial 3. Right to counsel and right to have counsel present during interrogation 4. Informed that if he can't afford an attorney, one will be appointed

Impeachment Exception

1. The impeachment must relate to either the defendant's testimony on direct examination or to questions asked by the prosecutor on cross-examination that are "reasonably suggested" by the defendant's testimony on direct examination Impeachment was permitted only if directly contradicts the defendant's testimony 2. Applies only to testifying defendants Doesn't apply to witnesses

There must be specific indications that the destruction of evidence is imminent . Circumstances that an officer might enter without fully identifying himself ...

1. The officer starts to identify himself and then hears running footsteps, whispers, or flushing toilets 2. The officer knows he has been seen from a window and knows that the inhabitants are in possession of easily disposable amounts of narcotics 3. A reliable informant tells the police that the narcotics to be seized are always kept near the toilet • The possibility of physical danger to the police may sometimes justify entry...i.e. suspect having gun

Factors to Determine Whether Curtilage or Open

1. The proximity of the area searched to residence(home) 2. Structures that make this area distinct 3. Use of area - any activities associated with the use of private daily lives 4. Attempt at Privacy: The steps taken to protect the area from observation

Limitations of the General Public Use Test

1. The rule applies only to interior of the home; not public places or workspace 2. B/c of rules on standing, probably only applies where the device is used against a resident or owner of the home in questions 3. Rule only applies to technology not in general public use 4. Device can be used if police get a proper warrant b/c it constitutes a search

Reasonableness Factors (4)- Arrests

1. The seriousness of the offense for which an arrest is made 2. The level of suspicion necessary 3. The requirement of a warrant 4. The use of force

Fleeing motorists and use of force

A law enforcement may, consistent with the 4th Amendment reasonableness, take actions that place a fleeing motorist at risk of serious injury or death in order to prevent that flight from endangering the lives of innocent bystanders

Neutral and Detached Majistrate

A neutral and detached magistrate in most cases mean a judicial officer who has no stake in the investigation for which a warrant is sought. Warrants invalid if the judge has a pecuniary interest affecting his judgment as to issue the warrant.

Government Action Required- Standing

A person aggrieved because of an allegedly illegal search or seizure must establish standing before obtaining relief (usually exclusion of the evidence) BUT must also establish the government action requirement. The search or seizure must have been accomplished by a government actor, as opposed to a private party, in order to be considered illegal under the Fourth Amendment.

Standing- General Rule

A person aggrieved by an allegedly unlawful search or seizure and seeking a remedy must establish standing before a court will find the claim to be justiciable.

When has a person been seized within the meaning of the 4th Amendment?

A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person whether the person would feel free to decline the officer's request or otherwise terminate the encounter. Perspective of individual, not officer

Protective Sweeps

A protective sweep, as first articulated in Maryland v. Buie, is only justified when, in conjunction with an in-home arrest, police have a reasonable articulable suspicion that the area to be searched harbors an individual that poses a danger to the police. Obviously, pursuant to this doctrine, the police may only search areas large enough to harbor a person. A protective sweep is not automatically justified. There must be facts that support the conclusion that there is a reasonable belief a person may be hiding in the home would may do the police harm. Must be contemporaneous with the arrest.

Thermal Imaging/ General Public Use Test

A search takes place when government agents employ a device that is not in general public use in order to explore details of a home that would previously have been unknowable without physical intrusion.

Seizure of a Person

A seizure of a person occurs when a government actor significantly interferes with a person's freedom of movement.

Seizure of a Thing

A seizure of a thing occurs when the government works or creates some meaningful interference with an individual's possessory interests in that property.

Waiver of Miranda Rights

A suspect's statement, made during custodial interrogation, cannot be admitted without a showing that: • Valid Miranda warnings were given • Defendant waived Miranda rights in fact (express verbal is best, but not required) • The waiver was effective. -Waiver must be voluntary, knowingly, and intelligently The state has burden of proof that the defendant knowing and intelligently waived his privilege against self-incrimination and his right to retained and appoint counsel .... standard of proof is: preponderance of evidence • A valid waiver will not be presumed simply from the silence of the accused after warnings were given or from fact a confession was in fact eventually got

Time and Manner of Execution- FCCP 41

A. Must be executed within a specified time, not more than ten days (not applicable to arrest warrants) B. Execute the warrant during the daytime (6am-10pm), unless the judge for good cause expressly authorizes execution at another time (GA- allows for a search during any "reasonable time") C. Return the warrant to the magistrate judge designated in the warrant

Minor Offenses- Detached Magistrate

Although the federal rules permit only judicial officers to issue warrants, the Supreme Court has indicated that, for minor offenses at least, warrants may be issued by lay people who are neither judges nor lawyers.

Children in schools can be searched when...

An administrator develops reasonable suspicion. Court emphasized the need for discipline in schools; the reality that a warrant would interfere with the swift and informal disciplinary procedures needed in schools; and the important of achieving a balance that did not ignore the legitimate privacy expectations of school children. Strip search goes to far, the child's right to privacy outweigh the school's interest in that situation.

Definition of Curtilage

An area adjacent to and intimately connected with the home

Definition of a Search

Any police conduct that intrudes on a person's reasonable expectation of privacy. Protects people, not places. No physical penetration of the area is necessary for a privacy invasion.

Constitutionality of Profiles

Balance security against that of societal safety • 1. The fact that a person matches a profile probably does not, in and of itself, give rise to reasonable suspicion; but • 2. Officers may rely in part on the cumulative law enforcement wisdom embodied in profiled when assessing the inferences that may be drawn from a person's conduct or attributes; and • 3. The fact that a person matches a profile does not detract from the inferences that might reasonably be drawn • PROFILE + Other fact = constitutional

High Crime Area- Reasonable Suspicion

Being in a high crime area is not enough for reasonable suspicion, but coupled with fleeing from unprovoked flight is sufficient.

But For, Balancing and Bad Faith- Inevitable Discovery

But for test... the prosecution is not to be put in a better or worse position that it would have been in if no illegality had transpired Balancing deterring illegal police activity versus the right to get this info to the jury Bad faith: police subjective intent does not matter

Scope of Consent

Even if officers obtain a valid consent to search, they must conduct their search within the scope of the consent. This usually involves the intensity and duration of the search Where the scope of consent is disputed, the test is an objective one. What would a reasonable person thought/understood the scope of the consent to be. • Tear up the carpet and door panels. To find a person. No. this is unreasonable. A person cannot hide under the door panel. • To avoid any ambiguity you must define the scope

State action required for statements under the Due Process Clause of the 5th

Confessions are inadmissible only if they are a product of state conduct. • If a friend forces the confession this is not a state actor/conduct • Statements are not constitutionally excludable when obtained through private compulsion But-for Causation required: Government action must haveinduced, brought about , produced, extracted or obtained the confession. There must be but for causation as illustrated.

5th Amendment- voluntariness under Due Process Rule

Confessions gained involuntarily through means of coercion are inadmissible as violating the due process clause of the Fifth. Where a defendant's statement is obtained by the police through means of coercion that renders it involuntary, due process clause of the Fifth Amendment requires the trial court to exclude the statement from the defendant's criminal trial.

Evaluating the voluntariness of the consent given

Consent is not valid if it was the product of duress or coercion, express or implied Totality of the circumstances • Objectively 1. Whether there was a show of force by the police 2. The presence of police officers: how many? 3. Repetitive requests to search • Subjective 4. Person's age, race, sex, level of education, emotional state or mental condition, that suggest that the person's will was overborn by the officer's presence • Burden of proof is on the State to prove that the consent was voluntarily given

Doctrine of common authority

Consent to a search of one who possesses common authority over premises or effects is valid as against the absent nonconsenting person whom the authority is shared

Vantage Point

Court has refused to recognize privacy in areas open to public observation. Police can facilitate their observations from a public vantage point by using enhancement devices, so long as those devices simply enable police to see more clearly something that they could otherwise see without the devices

Length of Interrogations

Courts factor the length of the interrogation, and its conditions into the totality analysis 55 - 80 hours is enough.

Typographical Errors

Courts generally hold that a typographic error in the warrant does not render the ensuing search illegal, so long as the premises actually searched were the intended objects of the search.

Property Interest- General Rules

Courts have decided that one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Property concepts mattered in determining whether the defendant's expectation of privacy was reasonable but that those concepts did not control the issue. Many courts hold that where items are abandoned voluntarily during a chase, they no longer belong to the individual and can be examined by police without any constitutional violation.

Reasonable Suspicion and Probable cause require the evaluation of the... (2qs)

Evaluating whether reasonable suspicion exists, like evaluating facts for probable cause, requires an assessment both of the quantity of available information and the quality of that information, in the totality of the circumstances.

Definition and Rule for Dual Purpose- Special Needs

Definition: A search or seizure that seems to serve regulatory goals as well as the goals of criminal law enforcement. Rule: Where the primary purpose is regulatory, a dual purpose search or seizure will be treated as a special needs action and the action will be upheld

Definition of a Stop

Detaining a person briefly for questioning upon suspicion that he may be connected with criminal activity (brief limited seizure)- limits the person's movement significantly. Requires reasonable suspicion that criminal activity is, was or will be afoot.

Levels of Suspicion

Encounter Seizure Level of Suspicion Voluntary No None Stop Yes (brief Seizure) Reasonable Suspicion Arrest Yes Probable Cause

Can an officer seize a person while the police obtain a search warrant?

Yes. Meant to maintain the house "as is" to protect and preserve evidence.

Subsequent Governmental Action- Standing

Even where a private individual has acted without the encouragement, endorsement, and participation of the government, the Fourth Amendment still might be implicated if the later government conduct intrudes "further on" the aggrieved party's Fourth Amendment interests than did the private actor's conduct. In such a situation, the government's further intrusion constitutes a separate search or seizure that satisfies the government action requirement.

Destruction of Property While Executing a Warrant

Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression.

Good Faith- Exception to the Exclusionary Rule

Exclusionary rule does not apply when an objectively reasonable officer would have believed the warrant to be valid Balancing Test: Purpose of exclusionary rule v. Public Interest to Take these Cases to trial • 1. Purpose: Deter police conduct; 2. Protect integrity of courts

Standing in the Business Context- Generally

Expectation of privacy in commercial premises is different and less than in a persons home. No standing to challenge a search b/c a person is a corporate officer or shareholder; access or control over certain area also doesn't itself give standing to an employee. SC has held that the expectation of privacy in private business offices is not defeated by visits of coworkers, supervisors ,and the public unless the office is so open to fellow employees or public that no expectation of privacy is reasonable.

US v. Jacobsen- Standing/ Subsequent Governmental Action (Fed Ex)

Facts: an employee for Fed express a private mail carrier, opened a package that had been damaged in shipment and found a tube and opened the tube which revealed bags of white powder. He then notified DEA and then put items back in package. The DEA agent reopened package the same way it was opened by employee and found items that tested positive drugs • The Court held that the agent's conduct did not violate a protected privacy interest. The additional invasions of respondents' privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. • Respondents could have no privacy interests in the contents of the package since it remained unsealed and the agents where reexamining the contents of the open package and the employees invited the agents to their offices. • The Court found that the agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. • The Court also found that the seizure of the trace quantity of cocaine necessary for the field test, the intrusion on the respondents' possessory interest was so minimal as to be non-cognizable under the Fourth Amendment.

What is the remedy if a Defendant believes that the warrant or warrant application was based on police deception?

Frank's Hearing:: if the defendant can establish an intentional (or reckless) falsity in the warrant application, and if the falsity was necessary to the finding of probable cause, then evidence discovered during execution of the warrant must be suppressed • Substantial preliminary showing of proof

Are jailed suspects usually considered to be in custody?

Generally a jailed suspect is considered to be in custody even if questioning deals with unrelated crimes.....THEY NEED to BE MIRANDIZED. The test would be whether the officer's conduct would cause a reasonable person to believe his freedom of movement had been further diminished......that is, further restriction than been in custody beyond being in prison itself

Hoffa v. US (1966)- Hotel Room/ Informant

Hoffa was not relying on the security of the hotel room, the informant was invited in, Hoffa had misplaced confidence.

Camara v. Municipal Court- Special Needs/ Home inspection (inside dwelling)

Home inspection was not constitutional and required a warrant of some sort . Thus, probable cause can be met when a "reasonable legislature or administrative standards for conducting an area inspection," such as passage of time, nature of building, and condition of the overall area, were met, but individualized knowledge about the interior condition of a particular dwelling is not required

Burdeau v. McDowell- Standing/ Search by Private Individual

If a private individual conducts a search or seizure and subsequently reveals to law enforcement officials evidence obtained during such a search or seizure, that evidence is admissible if offered by the government. In this case, the record showed that no official of the federal government had anything to do with the wrongful seizure of McDowell's property, or any knowledge thereof until several months after the property had been taken from him thus no 4th amend illegal search or seizure occurred.

Warrantless Arrests for Minor Offenses

If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender • This Rule will likely only apply to warrantless arrest for nonserious offenses where the arrest occurs in a car or other public place rather than a dwelling

Ariel Surveillance- Commercial Building (still need Obj. and Sub. analysis).

If commercial building, lower expectation of privacy. REP inside but not outside. Same rule as above (if in navigable airspace, no search).

The Court is hesitant to apply the exigent circumstances exception to the warrant requirement when...

If exigent circumstances arise as a direct result of irresponsible conduct by law enforcement officers, or as a direct result of conduct that the officers intended to create the exigent circumstances, their search and seizure activity will not be approved. But if the exigencies arise because suspects respond in a criminal fashion to routine police actions, the courts are not reluctant to uphold the resulting search or seizure.

Knock and Announce- Generally

If no one responds within 15-20 seconds, can go in if they can establish exigency.Violations of knock and announce do not fall under the exclusionary rule: the social costs of applying the exclusionary rule outweighed the social benefits

When does private action become government action?

If the private person can be said to have been an intentional "instrument or agent" of the government at the time of the search or seizure, then the government action requirement will be satisfied.

Inevitable Discovery Rule- Exception to the Exclusionary Rule

If the prosecution can establish by preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale has so little basis that the evidence should be received. Thus, the exclusionary rule would not apply.

Can an officer frisk an area?

In addition to frisking a person, an officer may also frisk an area if the officer has reasonable suspicion that a person within the area is armed and dangerous. The Court applied this rule to the passenger compartment of a car in Michigan v. Long and, in Maryland v. Buie, to a residence in which police were executing an arrest warrant

Fifth Amendment

In federal cases to indictment by a grand jury Against double jeopardy Privilege against self-incrimination* Due process in criminal cases*

Knock and Announce- No-Knock Entry Test

In order to justify a no-knock entry, "the police must have a reasonable suspicion (lowest standard) that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence" • Police cannot have blanket exception - cases by case basis - totality of the circumstances

In order to justify the seizure of an item discovered during a search incident to arrest...

In order to justify seizing an item found during a search incident to arrest, the officer must have probable cause to believe the item is (1) contraband, or (2) a fruit, (3) instrumentality, or (4) evidence of a crime. If not, the item must be returned to the arrestee eventually although it may be placed in a locker for safekeeping while the arrestee is detained.

Definition of in custody

if freedom of movement is restrain in some significant way • The court said that Miranda should only apply to circumstances where there is a custodial situation. The reason that we apply this is because when you are in custody you may be forced to testify against yourself. Location is not determinative.

Illegal Activity/ Commercial

Individuals enjoy little or no privacy interest when they engage in purely illegal activities. Same for commercial activity, no REP when open to the public.

Definition of a Custodial Arrest

Is a seizure of the person with the intention of thereafter having him transported to the police station or other place to be dealt with according to law.

State statutes requiring individuals to identify themselves to the police are not unconstitutional because...

It does not alter the nature of the stop or change the duration, length or location of the stopServes an important governmental interest: knowledge of identity allows police to either move-on and rule out this person, prepare for the possibility that the person is a threat (e.g. violent record, mental disorder, wanted), and if it is an assault cause then the police needs to know names

If there is a warrant application...

It must be attached to or incorporated in the warrant itself.

Known Informants and Potential Victims- Reasonable Suspicion

Known informants may provide officers with sufficient reasonable suspicion because they are more liable. Potential victims of crimes may also provide officers with sufficient reasonable suspicion. • Known informant- subjected to a penalty if reporting false information to the police (higher credibility and reliability)

Consent with (1) Landlord/ Tenant, (2) Children, (3) Roommates

Landlord/Tenant relationship: the landlord cannot give consent to search, can only consent to search common areas. Children: the closer the child is to the age of maturity, the more likely the court is to presume the child understands the situation and to uphold the consent. Roommates: Depend on the degree of separation of the private area from the common area being search and any retaining of areas of exclusive personal control.

Emergency Aid Exception- Exigency

Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury, regardless of an individual's officer state of mind. It requires only "an objectively reasonable basis for believing," that "a person within [the house] is in need of immediate aid."

When is there a legitimate seizure and when is the seizure illegitimate?

Legitimate seizure: • Search is supported by one of the recognized exceptions to the warrant requirement • Where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object Not legitimate seizure: • Used to extend a general exploratory search from one object to another until something incriminating at last emerges

Definition of a Frisk

Minimally intrusive search. Pat-down of outer clothing. Requires reasonable suspicion that the person is armed and dangerous. When an officer is justified in believing that an individual he is investigating at close range is armed and dangerous, it is reasonable to allow the officer to take necessary steps to protect himself from potential physical harm.

Bond v. US- Container Search/ Luggage

More than visual surveillance, the physical intrusion makes the search unreasonable and violates the 4th Amendment- Can't feel luggage. Subjective- expect privacy when luggage closed and opaque. Objective- does not expect that other passengers or bus employees, as a matter of course, to feel a bag in an exploratory manner.

Standard for Reasonable Suspicion- Reasonableness Factors

Must provide specific and articulable facts that lead the officer to believe that criminal activities are afoot.(objective): 1. Whether the officer's action was justified at its inception 2. Whether the officer's action was reasonably related in scope to the circumstances which justify the interference in the first place

Can an officer frisk the trunk, or search incident to arrest?

Neither the Terry frisk nor the search incident to arrest, however, would permit searching the trunk. A trunk search requires probable cause to believe that fruits, contraband, or evidence of a crime will be found in the trunk.

Container Searches- Trash

No REP in garbage placed on the street. Owners have assumed the risk.

US v. Boruff- Standing/ Leased Car

No REP of privacy because the proponent was given permission to drive the car by the person leasing the car. The person leasing the car had no legal right to allow the proponent to drive the vehicle. So no possessory interest- no standing.

Limitations on Container Searches within Automobiles

No limitation besides probable cause. If you have probable cause to search the container you have probable cause to search the car, just as if there is probable cause to search a vehicle, the probable cause extends to the containers within it. Containers can be searched regardless of who owns the container.

Ariel Surveillance- General Rule (still need Obj. and Sub. analysis)

No reasonable expectation of privacy against airborne observations if the police are legally in navigable airspace, thus there is no search.

US v. Miller (1976)- Bank Records

No reasonable expectation of privacy in your bank records; however, the Right to Financial Privacy requires the government to subpoena those records.

Is age a relevant consideration for custody?

No. Age is a subjective factor relevant to voluntariness of a statement, but custody is an objective analysis.

Must an officer warn an individual that the traffic stop is over before asking for consent to search the car?

No. An auto stop can be followed by a voluntary and consensual search even if the person has not been warned that the stop has ended (they have the right to leave).

Is Miranda required for field sobriety tests?

No. Field sobriety test is frequently performed by officers before giving Miranda rts to establish probable cause that the arrestee is under the influence • When the officer explains to the arrestee how the test would be administered and the during this process the arrestee made incriminating statements, the Court held that these statements were admissible because the officer comments were not likely to be perceived as calling for any verbal response • However, the Court recognized that a request that the arrestee compute the date of his 4th birthday did constitute interrogation, rendering inadmissible the arrestee's inept responses. • THUS, No Miranda warning needed if only giving explanation BUT if asking questions that are like to elicit any incriminating responses (functional equivalent of question) then Miranda warning is required. • Drunk driving arrest and arrest and sobriety tests may raise Miranda Problems b/c many states have enacted inform consent laws that require drivers to submit to sobriety test s or risk losing their driving privilege • Ct said the rt solution is to require a clear break between the field sobriety warnings and the Miranda warnings.

Is a warrant needed for fingerprinting?

No. Fingerprinting is less invasive than a search and seizure, so no warrant required.

Can an officer make a suspicionless stop to check licenses?

No. Less restrictive means exist to accomplish this goal, such as yearly inspections.

Is the Business Nexus Test applied in all Circuits?

No. Not all Circuits have adopted the business nexus test as a bright line rule. Some, like the Tenth Circuit, have adopted this test in a limited manner and held that " an employee should be able to establish standing by demonstrating he works in the searched area on a regular basis.

Does violation of knock and announce require the remedy of the exclusionary rule?

No. The illegal manner of entry was not a but for cause of obtaining evidence - the police would have executed a valid warrant and found guns and drugs even in the absence of the violation (inevitable discovery). Cost analysis- The primary cost is allowing guilty people to go free; Flood of litigation because unlike warrant or Miranda requirements, compliance of knock and announce is difficult at trial and even more difficult for appellate review. • Thus application of the exclusionary rule in knock and announce would cause police to refrain from entry after knocking and announcing thereby allowing destruction of evidence

Dog Sniff/ Field Testing

Not a search because the sniff just detects the presence of illegal activity, unless on the curtilage of the home because then there is a trespass issue. Field Testing is the same, no search because it just detects the presence.

Rule for Informants

Not a violation of the 4th Amendment when the accused invites someone in because he assumed the risk

Can you be arrested for failure to identify yourself?

Not unless the charge is loitering or prowling (identification relates to the arrest).

Test for Establishing Probable Cause with Informants

OLD TEST: Aguilar-Spinelli - both prong had to be met • Credibility of the informant • How reliable is the information - was it based on firsthand knowledge NEW TEST: Illinois v. Gates- Totality of the circumstances. Just need one prong to be satisfied and outweigh the absence of the other prong. Test does not apply to anonymous persons.

US v. Santanta- Hot Persuit/ Public Place (doorway)

Officers have probable cause to arrest Santana for a narcotics felony Santana was standing in her door way when the pursuit began - sufficient for public space

Contemporaneous

Once law enforcement officers have released luggage or other personal property, not immediately associated with the person or the arrestee, to their exlusive control and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest

US v. White (1971)- Informant wore wire/ Radio Transmitter

One contemplating illegal activities must realize that his companions may be reporting to the police. White invited the informant in and so he lost his reasonable expectation of privacy.

Overnight Guests- REP

Overnight guest have reasonable expectation of privacy. The Court reasoned that we seek temporary shelter "when were in between jobs or homes, or when we house-sit for a friend, as well as when we travel to a strange city to visit relatives out-of-town......because temporary guests are especially vulnerable to the loss of privacy, host customarily defer carefully to their privacy needs. BUT temporary guests do not have REP.

What kind of guests generally have standing?

Overnight. Temporary guests do not have standing. Relates back to REP.

Synthesized Pringle Rule

P/C has to be particularized to that particular person; however, if in a car and based on a totality of circumstances, police officers can infer that persons are engaged in a common enterprise then the officer can search the passenger, unless a single party has previously been identified as the perpetrator.

Parolee- Special Needs

Parolee has no expectation of privacy... issue of guilt by association for anyone who is with them...

Probable Cause Generally

• No warrant shall be issued unless there is probable cause • Is a low standard needed to arrest, issue a warrant and to search—below a preponderance of the evidence • Must be based on individualized suspicion. • A mere proximity to others independently suspected of criminal activity, does not, without more, give rise to probable cause to search that person. • Highly fact determinative—fact sensitive

Michigan v. Long- Search of vehicle incident to arrest/ threat to officer safety

Permits an officer search of a passenger compartment for weapons whenever there is a reasonable suspicion to believe that anyone, arrestee or not is dangerous and might gain immediate access to weapons in the car

Smith v. Maryland (1979)- Pen Registers and Pagers

Police can use a pen register and that is not a search because individuals using their telephones voluntarily convey "numerical information" to the telephone company and thus assume the risk that the company will reveal that information to the police . BUT the content of the conversations would constitute a search and possible violation of the 4th amendment.

Arizona v. Hicks- Plain View/ Stolen Merchandise

Police entered apartment; warrant; thought stolen merchandise; moved equipment; found numbers; radioed headquarters • Court said: violation • Since it was not apparent that the item was contraband, the officers needed to have probable cause for their search

Plain View Doctrine

Police officers are permitted to seize contraband, fruits, evidence, and instrumentalies of crime that they find in "plain view," if: 1. the item's incriminating nature is immediately apparent AND 2. the officer must be lawfully located in a place from which the object can be plainly seen, and 3. they must also have a lawful right of access to the object itself.

US v. Karo- Electronic Tracking Devices/ Beeper in Container (not okay)

Police placed beeper in canister. The beeper enabled the police to determine what they otherwise could not have known: that the article remained in the house during the period in which the warrant was obtained. If a device is being used to convey information about the inside activities of the home, it violated the 4th Amendment. However, the Court found no violation of 4th amendment rights in the installation of the beeper because the defendants had no reasonable expectation of privacy in the can while it belong to the DEA.

US v. Knotts- Electronic Tracking Devices/ Beeper in Container (okay)

Police put tracking beeper in barrel of chloroform which the defendant carried around. No warrant, but the police had consent from the original owner of the chemical. No invasion of a REP because a person traveling in an automobile on public roads has no REP in his movements, as those movements are open to the public.

Kyllo v. US

Police used thermal energy camera to detect heat lamps used for growing marijuana. Constituted a search and violation of the 4th Amendment because the thermal imaging revealed details about the inner workings of the home.

US v. Lombardo- Consent/ Prison Inmates and use of phone (waiver)

Prison inmates sign a form that acknowledges that their phone conversations will be recorded • Courts said that signing the form was enough and he consented to that recording because he used the phone (consent is implied by his use of the phone)

Franks Hearing

Procedural remedy of questionable effectiveness for a criminal defendant who believes that a police officer lied in the warrant application • Definition: if the defendant can establish an intentional (or reckless) falsity in the warrant application, and if the falsity was necessary to the finding of probable cause, then evidence discovered during execution of the warrant must be suppressed. Very difficult burden to meet.

Test for voluntariness

Prosecution has the burden of proof. 1. Was there coercive police conduct? 2. If there was coercive conduct, did it overbore the will of the accused and render their statement involuntary? Objective Factors: police conduct • Length of detention • Duration • Intensity • Use of deception and promises of leniency Subjective Factors: focuses on the vulnerability of the individual • Age • Education • Mental instability • Familiarity with the criminal justice system

Work and Business Offices

Reasonable expectation of privacy in office even though in government offices many others-fellow employees, supervisors, consensual visitors, and the general public- have access to the office. The Court pays attention to past practices and expectations in determining expectations of privacy. The court reasoned that the expectation of privacy in one's place of work has deep roots in the history of the 4th amendment.

Misidentification of a Person- Warrant

Rational: an officer's reasonable misidentification of a person does not invalidate a valid arrest. This rationale is equally applicable to an officer's reasonable failure to appreciate that a valid warrant describes too broadly the premises to be searched.

Every time there is a reasonableness analysis...

Reasonable Test: balancing test: 1. Government interest - 1) to prevent crimes and 2) safety of police officers 2. Private interest - Terry right to freedom of movement on the streets

US v. Jones- Electronic Tracking Devices/ GPS on Car 28 Days After Warrant Expired

Rule: If the government physically intrudes, without permission, onto the property (a car- "effect") of another (don't overlook trespass issues), then that constitutes a search and a 4th Amendment violation.

DNA Profiles- Special Needs

Similar to fingerprinting. Routine practice, so no warrant needed. This practice is reasonably related to the state's legitimate interest in identifying the individual.

Assumption of the Risk Factors

Subjective standard: Requires a decision to engage in conduct that the person is consciously aware of despite the risk that the information may not be kept private Objective standard: should the person have known that the information would not be kept private

Good Faith Exception to the Warrant Requirement

Sufficient probability, not certainty, is the touchstone of reasonableness under the 4th Amendment - Court gives latitude for "honest" mistakes of police officers

4th Amendment Warrant Requirement

The 4th Amendment does not state that you must have a warrant to avoid an unreasonable search and/or seizure. "No warrant shall issue but upon probable cause supported by Oath or affirmation & particularly describing the place to be searched & the persons or things to be seized."

Interrogation requirement of Miranda

• Express question OR words and actions are functional equivalent to express questioning (objective test) = if the officer should know that the words or actions are "reasonably likely to elicit an incriminating response " • In determining whether the police should have known about the effects of their remarks, "any knowledge the police may have had concerning the susceptibility of a defendant to a particular form of persuasion might be an important factor

When arresting a Defendant at a 3rd parties' residence

• If defendant is an overnight guest at the place of a 3rd party, then the police do not need a separate search warrant, but can search upon arrest • If defendant is not an overnight guest at the home of a 3rd party, then the police need a separate search warrant to enter the home

Reduced Expectation of Privacy

The Court has found privacy expectation to be reduced in: • Vehicles-when parked in public areas. • School settings: • In Prison Cell

What is required for a fleeing suspect to be considered seized?

The Court said that seizure for Fourth Amendment purposes means "a laying on of hands or application of physical force to restrain movement... as well as submission to the assertion of authority. • An seizure requires either physical force or submission to the assertion of authority • A fleeing suspect has not been seized unless he stops, either because he is physically forced to do so or because he submits to an officer's show of authority. • If officer shoots and missed - no seizure • If a person is accidentally injured during the course of a high-speed chase - no seizure -(no intentional government seizure)

Adults in non-safety contexts (Public Officials, women paternity patients, food stamp recepients)- special needs

The Court struck down a Georgia statute requiring the candidates for state office to pass a drug test • The 4th Amendment's restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion • Failed the special needs application • State failed to demonstrate a prior problem of drug abuse by state officials • The state had made no showing that ordinary law enforcement methods would not suffice to apprehend addicted candidates • Candidates for public office were subject to "relentless scrutiny" likely to reveal a drug problem Court struck down drug screening of maternity patients suspected of using cocaine • Regulation had the same purpose as general crime control • Declined to apply special needs doctrine because the purpose was indistinguishable from the general public interest in crime control • Primary purpose of the program was to use the threat of arrest and prosecution in order to force women into treatment • The extensive involvement of law enforcement officials at every stage of the policy: from the gathering of samples and reports to mandating the procedures for drug screening and arranging the arrests • Cannot drug test for food stamps because there is no individualized suspicion • No special needs • No higher rate of drug use in those using the food stamps and those who are not

Adults in safety sensitive contexts- special needs

The Court upheld Federal Railroad Administration regulations requiring drug testing of railway workers involved in accidents The Court upheld the United States Customs Service program requiring drug testing through urinalysis for customs workers upon their transfer or promotion to positions having a direct involvement in drug interdiction, requiring the carrying of firearms and handling of classified documents.

Does the Warrant or the Application have to be particularized?

The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents and if the warrant references another document, then it must be incorporated and attached. So either the warrant or the application must be particularized, but if it is the application it must be incorporated and attached.

Danger that Suspect will endanger lives- Exigency

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others (Warden, MD. Penitentiary v. Hayden: Robbery of cab company; driver saw suspect; radioed dispatch who radioed police; went to house; found suspect (then arrested him). Court said: okay) • The Court considered a failed narcotics sting that created dangerous circumstances for an informant and officers.

Requirement of prompt arraignment

The Fourth Amendment not only governs the reasonableness of arrests, but also it requires a prompt post-arrest determination of probable cause in the case of a warrantless arrest. If a person is arrested with probable cause but without a warrant, must be brought before a judge for probable cause hearing within 48 hours. Exceptions: Could be longer or shorter given certain circumstances (practically if arrested on a Friday or Holiday). If you have a warrant then you have to get the suspect in front of the judge by 72 hrs.

Warrant Particularity

The Fourth Amendment prohibits warrants that do not particularly describe the place to be searched, and the persons or things to be seized. Standard: whether the warrant contains sufficient particularity so the reasonable officer can be reasonably certain he is executing it correctly . Totality of the circumstances. • Test for particularity: Examine the warrant at the time it was issued- the information disclosed to the judicial officer Warrant cannot be overly broad or general. Must be particularized to a specific item(s) or crime(s).

If the officer shoots and misses, is there a seizure? If a person is injured in the course of a high-speed chase, is there a seizure?

• If officer shoots and missed - no seizure • If a person is accidentally injured during the course of a high-speed chase - no seizure -(no intentional government seizure)

Who is a governmental actor?

The Supreme Court chose the inclusive approach, holding that the Constitution prohibits all unreasonable government intrusions; it protects the citizen against the State itself and all of its creatures. • Inclusive approach entails: federal, state, and local public official, from FBI agent down to a local school board member/school officials. • The Fourth Amendment is thus applicable to the activities of civil as well as criminal authorities: building inspectors, Occupational Safety and Health Act Inspectors, school officials, and even firemen entering privately owned premises to battle fire.

Attenuation- Exception to the Exclusionary Rule/ Causal Connection between the illegality and evidence obtained

The fact that a piece of evidence would not have been found but for the violation is still admissible if it is so attenuated from the constitutional violation that it is purged from the taint of the violation • A piece of evidence that can be causally linked to a constitutional violation can be admissible if that causal link is so attenuated that the deterrent purpose of the exclusionary rule would not be served by suppression. Whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint

Vale v. Louisiana- Exigency/ Destruction of Drugs

The government cannot justify a warrantless entry and search on the risk that narcotics will be destroyed unless they demonstrate that the narcotics were in the process of destruction or about to be removed • Police officers arrested Vale in front of his home after observing him engage in what appeared to be narcotics transaction. • The officers entered his home and searched it, later claiming that the warrantless search was justified by the risk that the drugs would have been destroyed if they had waited for a search warrant. • Has to demonstrate that they think that the drug is being destroyed

Lopez v. US (1963)- Pocket Wire/ Informant

The government did not use an electronic device to listen in on conversations it could not otherwise have heard. "The risk of being overhead by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the condition of human society. It is the kind of risk we necessarily assume whenever we speak."

Stale Information- Detached Magistrate

The info in the affidavit must be sufficiently recent to allow the magistrate to reasonably believe that the items have not yet been removed or removed from the premises to be searched.

Business Nexus Test

The relationship or nexus of the employee to the area searched is an important consideration in determining whether the employee has a REP and thus, standing. -Whether the employee works in the searched area on a regular basis -whether the employee has a right to exclude others from the area searched.

Exclusionary Rule and Misdemeanors

The remedy of the exclusionary rule is too harsh and will not apply to misdemeanor traffic offenses (DUI nuance)

Sixth Amendment

The right to a speedy and public jury trial Be given an opportunity to confront witnesses against him and to call his own witnesses The right to assistance of counsel

Adequacy of miranda Warnings

The suspect must be informed in clear and unequivocal terms, his Miranda rights: • Does not require perfection: As long as reasonable person would understand the language as conveying his Miranda rights • Courts are lenient...as long as the rights are conveyed, then no violation • These warnings must be given to all suspects who are subjected to custodial interrogation - even, judges, lawyers, and law students.

Use of Force and Fear to coerce statements

The use or threatened use of force is highly determinative of involuntariness. A finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient • Mental • Physical (or the offer of protection from an imminent threat)

If an officer does not have a basis for suspecting a particular individual...

They may pose questions, ask for identification, and request consent to search luggage.

Hot Pursuit

This rule permits officers to enter premises without a warrant if: 1) they are in pursuit of a fleeing felon.....doesn't have to mean actual chasing 2) that pursuit began in a public place and end in a private place

Special Needs Searches and Seizures- Definition

Those conducted for a non-criminal investigation-related -purpose

When there is a search of a residence, who may be detained?

Those present at the time of the search may be detained. Rationales... • Preventing flight in the event that incriminating evidence is found • Minimizing the risk of harm to the officers • Facilitating the orderly completion of the search If it is a tavern they must have probable cause. If you hold the person to extent the warrant period, then this is unreasonable. • Ex: you hold someone for 24hrs until you get a warrant. This is unreasonable.

Roadblocks- Special Needs

Three prong test • 1. The gravity of the public concerns served by the seizure • 2. The degree to which the seizure advanced public interest • 3. The severity of the interference with individual liberty • Intrusion is low- set standard procedures applied to everyone to effectuate governmental interest. Sobriety checkpoints upheld, but drug trafficking check points were not: • Distinguishable from checkpoint for sobriety because there is an immediate need to protect the public from drunk drivers. Here, selling drugs is not as immediate of a threat

Police Error- Good Faith Exception

Two Prong Test: 1. Something more than simple negligence is needed before evidence can be excluded on the ground of a police error. Instead, police must act with at least gross negligence, or as a result of the systematic negligence of their departments. 2. Even if the first prong were met, excluding evidence must contribute to deterrence significantly enough to justify the social costs of exclusion.

Lewis v. US (1966)- Commercial Center/ Informant

Undercover drug buy in the D's home. Where the home was converted into a commercial center in which outsiders were invited in for business, it had no greater sanctity than a store, garage, or street.

Definition of Open Fields

Unoccupied and undeveloped open areas, even if enclosed and posted with "no trespassing" signs. Does not constitute a search. Police can enter without a warrant.

Destruction of Evidence- Exigency

When Gov agents have probable cause to believe contraband is present and in addition based on the surrounding circumstance or the info at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search, a warrantless search is justified • The degree of urgency and • the amount of time necessary to get a warrant • Believe that the contraband will be destroyed • Information that the possessors of the contraband are aware that the police are on their trail • The ready destructibility of the contraband and the knowledge that the efforts to dispose of the narcotics • The Court has held that police acted constitutionally when they prohibited a resident from entering his home for two hours while they obtained a search warrant for marijuana.

List of Warrant Exceptions

When a warrantless search is conducted, it will only result in admissible evidence if one of the exceptions are met AND probable cause exists; it is after all, a search. (IC PASTE) 1. Search incident to arrest 2. Plain View/ Plain Feel 3. Terry Stop and Frisk 4. Exigency- cannot create exigency and then reap rewards 5. Hot Pursuit 6. Automobile Exception (includes containers) 7. Consent 8. Special Needs **Officer still needs probable cause

Rule for pretextual stops and inventory searches

When evaluating whether a stop was pretextual, the Court will not consider the subjective beliefs of the police officer, but will consider the objective facts of the case. • Objectively if they could have arrested the defendant and impound the car, then the inventory search will be valid

Muehler v. Mena- Questioning Immigration Status

When executing a search warrant, questioning of a resident's immigration status did not expand the scope of the search (police questioning is not a search). Not a violation unless it expands the search

Plain Feel Doctrine

When the police frisk a person, they may seize any evidence that is apparent to their experienced plain feel, cannot manipulate object. Its size and contour must make it readily identifiable.

Limits of doctrine of common authority

Where a co-tenant is present, vocal, and refusing to consent, police may still decide to enter, search, and seize incriminating evidence as against the consenting co-tenant, but not against the demurring one, over and above that individual's refusal to consent.

Definition of Probable Cause

Whether at the time of arrest/search the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe that the offense had been committed by that person.

Mistakes by Officers in Executing Warrants

Whether the mistakes renders the warrant invalid depends on if it was possible for the officer, acting reasonably, to discover the mistake at the time the warrant was sought • Look at (1) mistake and (2) the officer's actions (what the officer knew or should have known)

Can a third party furnish consent for another person?

Yes, if that third party has actual or apparent authority. Actual authority depends on whether the third party shares access to or control over the premises at issue...Joint access and control.

Are procedures that give the police discretion with inventory searches lawful?

Yes, procedures giving the officer discretion are lawful as long as there is good faith, exercised in terms of the standard criteria, and based on something other than the suspicion of criminal activity

Can an officer order someone out of their vehicle for a traffic stop?

Yes.

Must children in school submit to a drug test?

Yes. Exception to the warrant requirement- special needs. Court upheld constitutionality of suspicionless random drug testing program required for students participating in athletics • Not for a criminal purpose but for a regulatory one • The Court stressed the school's "custodial and tutelary responsibility for children" • "School sports are not for the bashful"- locker rooms and showers • "Closely regulated industry"- similar too • Choose to go out for the team

Miranda rights only apply to

custodial interrogations If no formal arrest, objective evaluation: 1) Police dominated area? 2) Freedom of movement restrained in some significant way? Subjective belief is irrelevant

Right to remain silent rule

even after a defendant invoked his right to remain silent, police may question him with respect to another offence, provided that they scrupulously honor his original decision to remain silent • Time passed 2 hrs • New set of police officers • New set of Miranda rights given • New issue

Invocation of Miranda rights

must be express He must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement as a request for an attorney

Searches and seizures inside a home without a warrant are...

preemptively unreasonable and this presumption applies with equal force to searches lacking particularity in the warrant.

What constitutes formal adversarial proceedings?

preliminary hearing, indictment, information, or arraignment. (Massiah)

Exceptions to Miranda

public safety" and "routine booking

Waiver- Consent Exception

requiring a knowing, intelligent, and voluntary waiver of rights, as opposed to simple consent

An illegal seizure invalidates consent unless the prosecution can prove that...

the consent was freely given and not tainted by the illegality

Fruit of the Poisonous Tree Doctrine

the doctrine under which courts exclude evidence indirectly discovered by means of a constitutional violation

If a police officer conducts an inventory search, but there is no policy at all concerning when to open closed containers, then...

the search will be unlawful if they open a locked container.

Applicability to automobiles- Gant 2 part test/ search incident to arrest

• 1) When the search takes place, if the arrestee is a recent occupant and unsecure, and within reach of the passenger compartment at the time of the search, the officer can search the entire passenger compartment of the vehicle • If the arrestee is secured, then the officer cannot search the car (no issue of officer safety) • 2) The entire passenger compartment of a vehicle of a current arrestee may be searched incident to arrest as well as when there is reason to be believe that there is evidence relevant to the crime of arrest might be found in the vehicle......doesn't matter whether the arrestee is secured or unsecured • Reason to believe...appears to be a lower standard than reasonable suspicion (Do not need reasonable articulable facts)

Relevant Factors for the attenuation analysis

• 1)Temporal proximity - of the arrest and the confession • 2) Any intervening events....e.g. voluntary confession • 3) Purpose and flagrancy of the violation/official misconduct • 4) Whether a Miranda warning was given.....miranda warning in itself is not enough (Miranda warnings, alone and per se, cannot always break, for Fourth Amendment purposes, the casual connection between the illegality and the confession)

Inventory Searches will be valid when...- Special Needs

• 1. Valid impound • 2. Standardized policies and routine procedures • 3. May not be based on pretextual situations • Cannot have a valid inventory search based on pretext (Pretext: arrest not based on actual violation, but on some other reason or bias) Inventory search upheld where car was impounded after two parking tickets

Withdrawal of Consent

• An individual may withdraw consent to search at any time. If an officer finds incriminating items before consent is withdrawn, the plain view doctrine permits its seizure, and any subsequent withdrawal of consent would be to no avail. • Withdrawal cannot be used to create probable cause or reasonable suspicion However, if you withdraw and then act in a way that gives them reasonable suspicion, the search can lawfully continue

Deliberate Ellicitation

• An officer may be found to have deliberately elicited incriminating statements "directly" by engaging the defendant in conversation about the charged conduct, or "indirectly", by knowingly exploiting an opportunity to confront an accused without an attorney present.

Apparent Authority

• Apparent authority looks at the consent from the perspective of the objectively reasonable police officer. • The pertinent question is: would a reasonable police officer under the circumstances have believed that the third party had actual authority to consent? • If so, then the third-party consent is valid. • If a reasonable officer would have realized that the third party lacked authority to consent, then a search based on that consent will be held invalid

Search of Probationer's Home- Special Needs

• Approved warrantless search of probationer's home for purposes other than ensuring compliance with probationary terms • Reasonable suspicion that the probationer had committed another crime, nothing to do with probation • This is okay, balancing test- probationers have lower expectation of privacy because they are on probation and that increases the state's interest

6th and the Exclusionary Rule

• Confessions and statements obtained in violation of a defendant's Sixth Amendment right to counsel are inadmissible under the Massiah doctrine. • The rule excludes only those statements relating to an offense for which the adversarial process has been initiated. • Accordingly, incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses. • Rule: the fruit of the poisonous tree doctrine excludes evidence discovered as a result of Sixth Amendment violations, and the traditional limitations on that doctrine - inevitable discovery, independent source, and attenuation of the taint- apply.

Search of Probationer- Special Needs

• Court will permit warrantless searched of probationers' homes, so long as the searching officer had "reasonable grounds" to suspect the presence of contraband • This regulation is reasonable in order to satisfy the state's need to ensure compliance with probationary terms

Consent are invalid if misrepresentation by the governmental agent

• Courts are likely to find the consent invalid if the police misrepresent their ability to make the search • But if the officers have a warrant, but used that to obtain consent, any fruits of the search will be suppressed if the warrant turns out to be invalid • If an officer threatens to get a warrant and has sufficient facts so that a warrant could be obtained, the threat does not vitiate consent

Criminal Case Exception

• Exclusionary rule only applies to criminal trials Does not apply to civil or quasi-criminal proceedings (ex. does not apply to probation revocation or juvenile proceedings) • Exception: civil tax proceedings and civil forfeiture

Automobile Exception

• Police will never need warrant (because warrants requires probable cause, which would have already be present) • The exception extends to containers within vehicles as well. • Policy: the Fourth Amendment does not require warrants for vehicles because they may disappear before a warrant can be obtained and less privacy expectations in a vehicle than in a home (mobility and privacy concerns) • Being heavily regulated: they are subject to state licensing requirements that further limit their owners' and occupants' privacy interests. Even when the vehicle/ mobile home has been taken into police control and no longer poses a threat of mobility, a movable vehicle is still subject to this exception

Searches and Seizures by Customs and Border Patrol Officers- Special Needs

• The Court approved a suspicionless border checkpoint • Higher state interest at an international border- outweighs the person's personal liberty (Court upheld 19 hour detention of woman suspected if smuggling drugs over the border.

Are passengers of a car seized when the car is pulled over by an officer?

• The Court concluded that a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. • If there is reasonable suspicion to stop the car, then the Terry stop test is automatically met as to the car's passengers. However, the Terry frisk test is not automatically met. The police must have reasonable suspicion that the person frisked is armed and dangerous. • An officer's inquiries into matters unrelated to the reason for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as such inquiries do not appreciable extend the stop's duration.

Cupp v. Murphy- Exigency/ Destruction of Evidence and Severity of Crime (murder)

• The Court validated the seizure of blood, tissue, and fiber samples from under the fingernails of a murder suspect. • Fearing that the evidence on his hands might be destroyed, the police took incriminating samples of blood, tissue, and fiber from under his fingernails without his consent. • The severity of the crime involved and the minimal intrusion occasioned by the search and seizure clearly influenced the Court's decision • Exigent circumstance - evidence is being destroyed

US v. Clemons- Contemporaneous/ Suitcase

• The Ninth Circuit Court of Appeals upheld a suitcase search that took place two or three minutes after Clemons arrest, even though Clemons was approximately 300 yards from the suitcase when he was arrested. • Clemons dropped the locked suitcase and attempted to flee the scene. After he was captured and arrested, he was taken immediately to the DEA office at the airport - a walk that took or three minutes. • The court held that the search was incident to the arrest because the two were closely related in time.

United States v. Edwards- Contemporaneous/ Exception- Jail

• The Supreme Court upheld the seizure of an arrestee's clothing under the search incident to arrest doctrine, even where it occurred in the jail some ten hours after the arrest. • There appeared to be extenuating circumstances justifying the delay. • This should be viewed as a narrow exception for situations in which an immediate search is virtually impossible and exigency still exists at the time of the later search

Arrest Warrants v. Search Warrants

• The arrest warrant application typically is entitled a "complaint" rather than an "application". • The probable cause set forth in the arrest warrant differs from that found in a search warrant. In order to obtain an arrest warrant, the affiant must establish probable cause to believe that this particular person committed this particular crime. • The arrest warrant does not specify the place in which the arrest should occur. Typically, arrest warrants do not have expiration dates (except SOL). • The arrest warrant conveys no "searching" authority upon law enforcement officers. If officers wish to enter premises in order to effectuate an arrest, they must have a search warrant in addition to the arrest warrant. (The only exception to this rule covers the dwelling in which the person named in the arrest warrant lives.)

Warrants- Validity/ Particularity Test

• The discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant • The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had the duty to discover and to disclose, to the issuing Magistrate at the time the warrant was issued.

Maryland v. Garrison- Warrant Particularity/ Retroactive

• The discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant if the officer used the reasonable information available to him at the time of issuance

Exigent circumstances

• The grave nature of the ongoing crimes • The presence of loaded weapons • A likelihood that the suspects were themselves using narcotics • A clear and immediate threat of danger to law enforcement agents and to the public at large • Not only more than the minimum probable cause to believe, but actual knowledge, that the suspect committed the crime • At least strong reason to believe the suspects were on the premises • A likelihood that a suspect might escape if not quickly apprehended • An urgent need to prevent the loss of evidence • The additional time required to obtain a warrant (given the time of day) • An attempt by the agents to enter peacefully • Requires a case by case analysis • Balancing Test: The doctrine requires balancing the severity of the warrantless intrusion on protected interests and the severity of the criminal activity

Independent Source- Exception to the Exclusionary Rule

• The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. • Allows the admission of evidence that has been found independent of the illegal means • When the challenged evidence has independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation because the police would have obtained that evidence if no misconduct had taken place ***Thus, evidence that agents discovered before they obtained the search warrant would be admissible so long as the products of the illegal search were not used to obtain the warrant***

Deadly Force Rule

• The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable • SC held that as a constitutional matter where the suspect poses no immediate threat to officers and no threat to others the harm resulting from failure to apprehend doesn't justify the use of deadly force to do so. • However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

Residual clauses: added to a specific list of items and call for the search and seizure of "all other evidence"

• These clauses are upheld so long as the "all other evidence" language is limited to the specific crime detailed in the warrant (officers cannot look for evidence of unspecified crimes)

Search Incident to arrest

• When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape • It is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction (If drug offense, drugs are easily destroyed so if a felon flees, exigency in preventing destruction) • AND the area into which an arrestee might reach in order to grab a weapon or evidentiary items • If police make lawful arrest of a citizen, then may search regardless of reason for arrest • The authority to search flows from the arrest itself - it must be lawful or the results of the search will suppressed, a search incident to arrest requires no additional justification. • The Court held that the doctrine of searches incident to arrest applies only when a police officer actually effectuates a custodial arrest.