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T H E E XCLU S I O N A RY R U LE

Prohibits the introduction of evidence obtained in violation of a Ds constitutional rights


in a criminal trial.
Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal
government conduct is excludable against D.
Arises when illegal police action leads to evidence
Exceptions evidence illegally obtained is admissible if the government can break
the chain between the original illegal conduct and the illegally seized evidence.
There are three ways to do this:
1. Independent source govt. has an independent source for obtaining the
evidence (i.e. independent of the original illegality)
2. Inevitable discovery govt. would have discovered the illegally derived
evidence even without the illegal conduct.
3. Intervening acts of free will by D after the initial illegality, D led police to
the evidence by his own free will.
Remedy for exclusionary rule violation harmless error review
For admission of illegally seized evidence to be upheld on appeal, the government
must show that it was harmless BRD.

L IM I TATI O N S

ON

T H E E XCLU S I O N A RY R U L E

The ER applies ONLY to searches in violation of a federal statute or the U.S. Constitution.
Exclusionary rule does not apply:
In grand jury proceedings, civil proceedings, parole hearings, or administrative
cases.
For violations of the knock and announce rule in executing search warrants.
To evidence seized as a result of Miranda violations.
Excluded evidence and impeachment:
Confessions resulting from Miranda violations or illegally obtained evidence may be
used to impeach Ds testimony a trial (only Ds testimony, not all testimony).
Govt. good-faith defenses to the exclusionary rule
Illegally obtained evidence will not be excluded if the govt. demonstrates that it
relied in good faith on either:
1. A reasonably relied upon but defective search warrant
2. A judicial opinion or statute that was later changed or declared invalid

T H E F O U RT H A ME N DM E N T
The right of people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue,
but upon PC, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
The Fourth Amendment applies to both searches and seizures of property, and to arrests
of persons.
A R R E S TS
An arrest occurs when police take an individual into custody for purposes of criminal
prosecution or interrogation.
Probable cause is always required for any valid arrest
Probable cause: trustworthy facts or knowledge sufficient for a reasonable person
to believe that the suspect has committed or is planning to commit a crime.
Warrants are rarely required for arrests
Unless an arrest occurs in the arrestees own home, the govt. does not need a
warrant to make an arrest.
A warrant is not required for an emergency arrest occurring in the arrestees home.
D E TE N TI O N S
A governmental seizure of a person that is lesser than an arrest.
Common govt. detentions:
Stop and frisk
o Requires R&A suspicion.
Automobile stops
o Requires R&A suspicion.
Stationhouse detention
o PC is required to compel a person to enter a govt. location for fingerprinting,
questioning, etc.
Detention to obtain a search warrant
o Requires PC
o If police have PC to believe a suspect has contraband hidden in her home,
they may prevent her from entering her home for a reasonable time while
they obtain a search warrant.
Purpose MUST be to prevent her from destroying the contraband
evidence.
Detention of occupants of a premises
o If police have a valid warrant to search a given premises, they may detain its
occupants for the duration of the proper search.

D E TE R M I N I N G T H E V A L I DI TY

OF AN

E V I DE N TI A RY S E A R CH

OR

S E IZ U R E

Searches for, and seizures of, evidence by the govt. must be reasonable under the 4 th
Am.
This requires a valid search warrant unless one of six exceptions applies.
Determining the reasonableness of a search or seizure:
1. Is there govt. conduct constituting a search or seizure?
O The 4th Am. Only applies to govt.s direct or authorized conduct; it offers no
protection against conduct by private individuals.
2. Does D have standing?
o D must have a REOP in the thing or place to be searched.
3. Is there a valid search warrant?
4. If there is no valid search warrant, was there a valid exception to the search
warrant requirement?
Exceptions to the search warrant requirement:
1. Search incident to arrest
2. Plain view search
3. Automobile search
4. Valid consent to search
5. Exigent circumstances
6. Stop & frisk

R E A S O N A B L E E X P E C TATI O N

OF

P RI VA CY

The 4th Am. only applies if a person has a REOP regarding the thing or place searched
and/or the items seized
Standing to challenge a govt. search requires a REOP
REOP is determined by the TOC
No REOP for inherently public things
(EXP) handwriting, voice, location, odors, bank records, things viewable from public
place, garbage placed outside
Automatic standing REOP always exists if D either:
1. Owns, has a right to possess, or lives in the premises to be searched, or
2. Is an overnight guest of the premises to be searched

R E QU I R EM E N TS

F OR A

V A L I D S E A R CH W A R R A N T

Unless an exception applies, the govt. must have a properly executed warrant to conduct
a search
Requirements for a valid warrant:
1) Based on PC
o Usually a police affidavit demonstrating PC that the search or seizure will
produce evidence
o Affidavits:
Must contain facts showing PC
May include information from anonymous sources (i.e. informants)
If an affidavit is based on materially false information, the warrant is
invalid
2) Precise on its face
o The warrant must describe, with reasonable precision, the place to be searched
and/or items to be seized.
3) Issued by a neutral and detached magistrate
o If this requirement is violated, evidence seized pursuant to the invalid warrant
cannot be admitted under the good faith reliance exception.
Places searchable pursuant to a warrant almost anywhere
o Warrants can be issued for any location where the govt. has PC to believe there
is evidence to be seized.

E X E CU TI O N

OF

S E A R CH W A R R A N TS

Timing police must execute a search warrant without unreasonable delay after it is
issued
Knock and announce police must knock and announce their purpose, then wait a
reasonable time for admittance before entering on their own accord
Exception knock and announce is not required if officers have reasonable
suspicion that announcing their presence would be dangerous, futile, or would
inhibit the investigation
Scope of search police can seize any evidence of criminal activity they discover, even
if not included in the warrant
Basis is the plain view exception to search warrants
Police can detain people found on the searched premises
o But police CANNOT search detained persons unless they are specifically
named in the warrant or a valid warrantless search exception exists

V A L I D W A R R A N TL E SS S E A R CH E S
A warrantless search is unconstitutional unless it fails under a valid exception to the
search warrant requirement
Exceptions to the search warrant requirement:
1) Search incident to lawful arrest
2) Plain view
3) Consent
4) Automobile exception
5) Stop & frisk/Terry stop
6) Exigent circumstances
o Hot pursuit
o Emergency
o Evanescent evidence

S E A R CH I N CID E N T

TO

L AW F U L A R RE S T

Police may, without a warrant, search a lawfully arrested person and his immediate
surrounding area
Requirements:
1) Arrest must be lawful
2) Search must be contemporaneous with the arrest
3) Search must be limited to the area within the suspects immediate reach or
immediate movement (i.e. where he may be able to obtain weapons or destroy
evidence)
Protective sweeps police may make protective sweeps of an area for their own
safety or if they have reasonable belief that accomplices may be present
Inventory search police may make an inventory search of an arrestees belongings,
i.e. they can take items to the police station to be searched
Automobiles if an arrestee is in an automobile, police may search the passenger
compartment, including the glove box
Police cannot search the trunk without probable cause or consent
Police cannot search the passenger compartment if arrestee is secured, away from
the vehicle

P L A I N V I E W S E A R CH E S
Police may search from any place where they are legitimately present when viewing (i.e.
when conducting the search)
Seizure based on plain view police may make a warrantless seizure based on
evidence in plain view if:
1) They are legitimately on the premises from which they viewed the evidence to be
seized
2) Evidence of criminal activity or contraband is immediately apparent
3) They have probable cause to believe that plainly viewed evidence is contraband or
relates to a crime
Scope & limitations of plain view searches
Plain view includes anything viewable from land or public property
o Items viewable only through binoculars are still within plain view
Police cannot use technological devices to view evidence that may give rise to a
plain view search (e.g., infrared scanners capable of viewing through walls)
Plain smell included within plain view
o If police smell something giving rise to probable cause from a place where
they are legitimately present, they can search that item

CONSENT

TO

S E A R CH

Requirements for valid consent:


1) Voluntarily and intelligently made
o Police cannot lie or deceive to obtain consent
o Police have no obligation to inform suspects that they have a right to refuse
consent
2) Person giving consent has authority to consent
o Must be reasonably apparent that the consenting party has the authority to
consent
Scope of consent can be limited by the consenting party
Violation of the allowed scope renders the entire search non-consenting
Third-party consent allowed if there is authority to consent
Where multiple people have rights to property (via ownership, authorized use or
occupancy), any single one can consent to the search of any area where they have
authority to consent
A residents right to consent trumps a non-resident
o E.g., if both a tenant and landlord are present, the tenants refusal trumps
the landlords consent
Scope of consent is dictated by the person present with highest authority to
consent
Refusal trumps consent no consent if two persons with equal right to possession
disagree on consent

A U TO MO B I L E S E A R CH E XCE P TI O N
If probable cause exists, police may search an entire vehicle (including the trunk) and
anything inside it that may contain evidence of suspected criminality
Requirements
Police must have probable cause to search the vehicle
Probable cause must arise before the search begins
o I.e. probable cause must arise based on something between the vehicle stop
and the search
Scope of permissible search
Police may search passengers and their belongings
Packages & containers in the vehicle police may open any package, container,
or item of luggage that they reasonably believe may contain evidence relating to
the reason they searched the vehicle
o Police may also tow the vehicle and search such containers at a later time

A U TO MO B I L E S TO P S & P O L I CE C H E CKPO I N TS
Automobile stop reasonable suspicion required
To stop or pull over a vehicle, police must have reasonable suspicion that a law has
been violated
Pretextual stops actual motive is irrelevant; as long as police have reasonable
suspicion of some legal violation, they can have any other actual motive for
stopping a car
All passengers have standing to challenge the stop
Accompanying searches police may search:
The passenger compartment and passengers for weapons
o Does not include the trunk
Any open containers that could reasonably contain evidence supporting the
reasonable suspicion for the stop (does not include closed, locked containers)
The entire car may be searched if probable cause arises, in accordance with the
automobile search exception
Police checkpoints must relate to a vehicle-specific purpose
E.g., DUI checkpoints are okay because they relate to road safety, but drug
checkpoints are insufficiently related to driving, and are thus unconstitutional
Vehicles must be stopped using some neutral and articulable standard

S TO P & F R I S K
Police may detain a person for an investigative purpose if they have reasonable
suspicion of criminal activity
Allowable scope of stop & frisk:
Length detention must be no longer than necessary to verify the suspicion
Frisk if police have reasonable suspicion that the person is armed or dangerous,
they may conduct a protective frisk for weapons
o Plain feel if police have reasonable belief during the frisk that what they
feel is a weapon or contraband, they may seize the suspected item
Officers cannot manipulate the item to develop reasonable belief it
must be plain touch only
Evidence validly seized is admissible
Stop vs. arrest
A stop is a brief detention, not an arrest
But police may develop probable cause to arrest based on anything occurring or
discovered during the stop and/or frisk
Note Stop & Frisk is often called a Terry-type stop

E X I GE N T C IR CU M S TA N CE S
Police can seize or search evidence in exigent circumstances:
1. Hot pursuit
o While in active pursuit of a fleeing felon, police can search for anything
relating to the pursuit or for their own protection
2. Evanescent evidence
o Police can search or seize evidence that would be at risk of disappearing if
police were required to secure a warrant
E.g., drugs which may be discarded, DNA evidence which may not last
3. Emergency
o Police can search or seize evidence if justified by emergency circumstances
(e.g., a bomb threat or act of terrorism)

O T H E R F OU RTH A M E ND ME N T S E A R CH E S :
Administrative searches
Govt. agencies may conduct routine searches or inspections
o E.g., building code inspections, food safety inspections, searches of
businesses in highly regulated industries, airline passenger searches, parolee
searches, etc.
A warrant is required for inspections of private residences or commercial buildings
o Requires less particularity than standard warrants
o A general and neutral enforcement plan for the searches will suffice to
validate the warrant
Public school searches
Warrantless searches are permitted for drug tests of public school students who
participate in extracurricular activities
Border searches
At the border, officials may conduct routine searches of persons and their effects
(including vehicles) without a warrant, probable cause, or reasonable suspicion
o Border = any place where one can arrive in the U.S. from a foreign country
(e.g., there is a border at Denver International Airport)
Detentions reasonable suspicion required
Officials may detain a traveler at the border if they have reasonable suspicion she
is smuggling contraband
International mail
Officials can open and inspect international mail if they have reasonable suspicion
it contains contraband
Immigration
Officials may raid a business to determine citizenship status of its employees

E L E CTR O N I C S U R V E I L L A N CE : W IR E TA P PI N G

AND

E AV E S D R O PPI N G

Electronic surveillance (i.e. wiretapping or eavesdropping) is a search under the 4 th Am.


and requires a warrant
Warrant requirements for electronic surveillance:
1) Probable cause
2) Warrant names the suspects subject to surveillance
3) Warrant describes with particularity the subject of conversations that can be
listened to
4) Surveillance is limited to short periods of time
5) Wiretap terminates when the desired information is obtained
Note all speakers assume the risk that the person to whom they are speaking is wired
and/or recording the conversation
Therefore, police do not need a warrant if they get someone to wear a wire and
talk to the suspect
They do need a warrant to tap the suspects phone

FOURTH AMENDMENT CHECKLIST


In criminal prosecutions, Fourth Amendment issues arise in an evidentiary context.
That is, the question that normally must be considered is this:
Should a particular tangible object or oral communication, secured by government
agents, and which the prosecutor intends to introduce at trial against the defendant (D)
in the governments case-in-chief, be excluded because it was obtained in violation of
the Fourth Amendment?
Answering this question is almost never simple. Nor is there any foolproof way to
go about determining the answer. Nonetheless, the following checklist of questions may
help clarify matters. It may be useful to return to it multiple times as you proceed
through the Fourth Amendment thicket.
In answering the evidentiary question stated above, one should focus on the police
activity that resulted in discovery of the particular item evidence at issue, and consider
as many of the following questions as are relevant. If there are multiple items of
evidence to consider, it is preferable to consider them in chronological order, i.e., in the
order in which the evidence was secured by the police.
1. Does D have standing to raise a Fourth Amendment challenge to the specific
item of evidence in question? If the answer is no, the evidence is admissible, insofar as
the Fourth Amendment is concerned. If the answer is yes, the analysis continues. In a
multi-defendant criminal prosecution, this question must be asked separately as to each
defendant. One person may have standing to raise the claim, while another does not.
2. Is D among the people protected by the Fourth Amendment? If the answer is
yes, proceed to the next question.
3. Did the police activity in question implicate a person, house, paper, or effect?
If the answer to this question is no, which is rare, the Fourth Amendment does not
apply.
4. Did the police activity constitute a search and/or seizure? These words have
specialized meanings in Fourth Amendment jurisprudence. If the police activity in
question does not constitute either a search or seizure, the Fourth Amendment does not
apply. If the activity constitutes either a search or seizure, the analysis continues.
5. Was the search and/or seizure reasonable or unreasonable? This is the ultimate
substantive issue: it indicates whether the Fourth Amendment was violated.
Nonetheless, one cannot answer this question without considering various sub-issues,
including the following:
A. Did the police have adequate grounds to conduct the search and/or seizure? For
searches and seizures, the police traditionally must have probable cause, a
constitutional term of art. Many searches and seizures, however, are permitted on a
lesser ground, called reasonable suspicion. And, the Supreme Court has approved
suspicion-free searches and/or seizures in a few cases. In light of the different applicable
standards, one must look at the particular search and/or seizure in question, and
determine whether it is the type for which probable cause is required (many cases),
whether it is the type for which reasonable suspicion is sufficient (many cases), or
whether this is one of the few cases in which the police may act at random. Then,
assuming some level of cause is required, a lawyer must determine whether the police
possessed the requisite probable cause or reasonable suspicion, as the case may be.
If the police did not have sufficient grounds, the search or seizure was unreasonable, in
violation of the Fourth Amendment.
B. Even if the police acted on the basis of probable cause, did the police obtain a
search warrant or arrest warrant, as the case may be? If the answer to question is yes,

a number of sub-issues arise: (I) Did the police obtain the warrant in a proper manner?;
(ii) Was the party issuing the warrant a neutral and detached magistrate?; (iii) Was the
warrant in proper form, e.g., does it satisfy the constitutional particularity requirement?;
and (iv) Did the police execute the warrant properly?
If the police did not secure a warrant, the sub-question is: Did the police have a
valid reason for not obtaining the warrant? As will be explained in the Text, arrest
warrants are constitutionally required only in very limited circumstances. Search
warrants are required more often, but many exceptions to a so-called search warrant
requirement exist. If no valid exception existed, however, a warrantless search or
seizure would be considered unreasonable and, therefore, in violation of the Fourth
Amendment.
6. Assuming that the preceding questions justify the conclusion that the police
conducted an unreasonable search or seizure in violation of Ds rights, the Fourth
Amendment exclusionary rule comes into potential play as to the particular item of
evidence in question. However, there are still questions to be asked and answered:
A. Does the exclusionary rule apply in the particular situation? In light of relatively
recent case law, the scope of the exclusionary rule has been limited. There are certain
categories of unconstitutional searches or seizures to which the exclusionary does not
apply; as well, the degree of culpability of the police officers who violated the Fourth
Amendment must also be considered.
B. Assuming the exclusionary rule applies, then the evidence obtained in direct
violation of the Fourth Amendment is inadmissible. Then ask: Does the government seek
to introduce any other evidence that is a fruit of the poisonous tree that is, evidence
causally linked to the initial illegality? If the answer is yes, these fruits are also
inadmissible, subject to two limiting doctrines, explained elsewhere: (i) the inevitablediscovery doctrine; and (ii) the attenuated-connection doctrine.

F I F TH A ME N DM E N T P R I V I L E GE A G A I N S T C OM PE L L ED S E L F -I N CR I MI N ATI O N
Under the 5th Am. any person in any proceeding (civil or criminal) may refuse to answer a
question if her response might incriminate herself
Privilege is only available for compelled testimonial or communicative
evidence
Testimonial = verbal or otherwise communicative evidence
o Lineups and physical evidence not testimonial
Compelled = elicited or induced
o Evidence produced from Ds free will is not compelled (e.g., Ds diary is not
compelled)
o Lie detector tests, custodial interrogation, etc. are compelled 5 th Am. privilege
applies
Privilege does not apply if:
1) Grant of immunity govt. can grant immunity from prosecution for selfincriminating testimony
2) Incrimination is not possible e.g., the statute of limitations has run
3) Extinguished by waiver D waives the privilege
Note at trial, the prosecution cannot comment on Ds silence or failure to testify

M I R A N D A R I G H TS
A person in custody must be adequately informed of his Miranda rights prior to
interrogation in order for his subsequent statements to be admissible
Custodial interrogation required Miranda only applies when the accused is in
custody and interrogated
Custody the accused is not free to leave
Interrogation any statements by police likely to elicit an incriminating
response (i.e. any conduct police know or should know will get a damaging
response from the accused)
o Unsolicited statements are not protected
o Note routine questioning, e.g., during booking or a probation interview, is
not considered interrogation
o Public safety exception police may interrogate suspects without giving
Miranda warnings if necessary due to concerns for public safety (e.g., D has
info about a bomb that could go off in public)
Miranda warnings police must inform the accused that he has:
1) A right to remain silent
2) Anything said can be used against him
3) He has a right to the presence of an attorney and
4) One will be appointed if he cannot afford one
Substantial compliance in reading warnings is sufficient
Failure to give warnings only implicates the 5th Am., not the 6th Am.

I N VO KI N G & W A I V I N G M IR A N D A R IG H TS
An accused may terminate an interrogation at any time by invoking his right to remain
silent or requesting counsel
Invoking the right to remain silent after the accused invokes the right, police
must cease all questions
Only the accused can re-initiate dialogue
Police may later question the accused regarding unrelated crimes
Invoking 5th Am. right to counsel all questions must cease, on any topic, until
counsel is provided and present
Note this is different than the 6 th Am. right to counsel, which is offense-specific
and does not attach until charges have been filed
If accused initiates the communication, interrogation is allowed
Waiving Miranda rights waiver must be:
1) Knowing
2) Voluntary must be a clear verbal waiver
3) Intelligently made
Burden is on P to prove waiver was valid

S I X TH A M E ND ME N T R IG H T

TO

C OU N S E L

Once the 6th Am. right to counsel attaches, police may not deliberately elicit
incriminating statements outside the presence of Ds counsel
Application the right attaches once charges have been filed
o Applies to all subsequent stages of the judicial proceeding
Scope the right is offense-specific
o Police can question D about any other crime without violating Ds 6 th Am.
rights
5th vs. 6th Am. Right to Counsel
5th Am. right to counsel
o Not automatic the accused must invoke the right by requesting the
presence of counsel
Request must be unambiguous
Applies to any custodial interrogation
o Not offense-specific once invoked, police must stop questioning on all
subjects
Police can re-initiate questioning after a break and D must re-invoke the
right by again requesting an attorney
6th Am. right to counsel
o Automatic attaches once charges have been filed
o Offense-specific Police can question D about any other crimes

P R E TR I A L L I NE U P S & S H O W U P S
A suspect has a right to counsel at any post-charge, in-person lineup or showup
Does not apply to non-live identification procedures (e.g., photographic lineups or
fingerprinting)
Lineup witness is shown several possible suspects at once
Showup witness is asked to identify a single suspect
Remedy for violation
D may move to suppress any subsequent in-trial identifications by the witness
Note remedy for a violation is rare because govt. can often prove the identifying
witness has an independent source of identification to overcome the exclusionary
rule

RIGHT

TO

C O N F RO N T W I TN E SS E S

The 6th Am. gives Ds the right to confront adverse witnesses


Confrontation D has a right to have adverse witnesses testify in-person and subject
to cross-examination; not an absolute right
In-person testimony is not required if:
1. Exclusion is necessary for public policy, and
2. Reliability of the testimony is otherwise assured
D can be removed from court for disruptive behavior
Co-defendant confessions the confession of a non-testifying co-D against D at a
joint trial violates the 6th Am.
Does not apply to bench trials
Exceptions the confession of a non-testifying co-D is admissible if:
o Ds have separate trials
o The confession is edited so that all portions referring to the co-D are
eliminated
o The confession is used to rebut Ds claim that his confession was obtained
coercively
Hearsay prior testimonial statements of unavailable witnesses are only admissible if
D had the opportunity to cross-examine the declarant when the statement was made

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