4A 5A 6A

Question 1

4A Approach

Answer 1

Gov action
Standing
Search
valid search warrant?
If no warrant, does an exception apply?
Seizure
Of person → arrest w/ warrant, PC, or RS for Terry Stop?
Of Evidence → PC to seize?
Exclusionary Rule → FOTPT
ER Exceptions

Question 2

4A & 14A

Answer 2

4A, applicable to the states via the 14A, prohibits unreasonable searches and seizures by the gov.

Question 3

Gov action

Answer 3

4A protections only apply to gov actions. Gov actors are publicly paid police and citizens acting on the police’s direction. (Privately paid officers are not gov actors unless they have been deputized.)

Question 4

4A Standing

Answer 4

D must have standing to challenge a gov action. Standing arises if D has a reasonable expectation of privacy (REP) in the item or place searched. A person always has a REP if she owns, has possession of/lives in, or is an overnight guest at, the place searched. A person does not have a REP in items held out to the public.

Question 5

Open Fields

Answer 5

areas outside the curtilage (area immediately surrounding the home) are subject to police entry & search b/c they are held out to the public.

Question 6

search

Answer 6

gov intrusion of an area where a person has a REP.

Question 7

seizure

Answer 7

the exercise of control by the gov over a person or thing. A person is seized when, under the TOTC, a reasonable person would not feel free to leave or terminate the encounter. There must be a physical application of force by the officer or submission to the officer’s show of force.

Question 8

arrest

Answer 8

occurs when the police take a person into custody against her will for purposes of prosecution or interrogation. Must be based on PC.

Question 9

warrant

Answer 9

A search/seizure generally must be made pursuant to a valid warrant, which is:
1. Issued by a neutral & detached magistrate – unbiased.
2. Based on probable cause (PC)
3. And describe w/ particularity the place to be searched or items/persons to be seized.

Question 10

PC

Answer 10

When based on TOTC, there are sufficiently trustworthy facts/circumstances to provide a reasonable basis for believing D has committed or is committing, a crime, or evidence of the crime will be found in the particular place to be searched.

Question 11

PC and informants

Answer 11

To satisfy PC by an informant’s tip, the judge must determine by the TOTC that the information is credible.

Question 12

scope of warrant

Answer 12

The warrant is limited to what is reasonably necessary to discover items described & it must be executed w/o unreasonable delay.
Generally the officers must knock and announce their authority and purpose and wait a reasonable amount of time before using force to enter, unless they have RS that this would be dangerous, futile, or would lead to destruction of evidence.

Question 13

warrantless s/s

Answer 13

are per se unreasonable unless an exception applies.

Question 14

SILA

Answer 14

Upon lawful arrest, the officer may conduct a limited search of the suspect & areas w/in her wingspan (areas w/in D’s immediate control where she might obtain a weapon or destroy evidence), so long as the search is contemporaneous in time & place w/ the arrest. The rationale is officer safety & preservation of evidence.

Question 15

protective sweep

Answer 15

police may also make a protective sweep of the area beyond the D’s wingspan for purposes of officer safety or if they reasonably believe accomplices may be present.

Question 16

auto SILA

Answer 16

police may search the interior of an automobile, but not the trunk, ILA of an occupant of the car only if:
1. the arrestee is unsecured & w/in reaching distance of the passenger compartment at the time of the search; OR
2. Officer reasonably believes the vehicle contains evidence of the offense of arrest.

Question 17

inventory search

Answer 17

police may conduct a search of the arrestee’s person’s property as a routine booking procedure, including their impounded car.

Question 18

plain view

Answer 18

To justify a warrantless seizure of an item: it must be found in plain view, the officer must legitimately be on the premises w/ a lawful right to access the object, and the incriminating character of the item must be immediately apparent for the officer to reasonably believe the item is evidence or contraband.

Question 19

Auto Exception

Answer 19

If police have PC that an automobile contains evidence of a crime or contraband, they may search anywhere in the vehicle that might reasonably contain the item. (including the trunk, closed containers, and belongings)

Question 20

consent

Answer 20

Police may conduct a warrantless search if they have voluntary consent by one w/ an apparent equal right to use or occupy the property. Voluntariness is determined by the TOTC. Search is limited to the scope of consent. Police may not act on the consent of one occupant if a co-occupant, whom the search is directed against, is present & objects to the search. However, if the objecting occupant is properly removed for a reason unrelated to the refusal, police may act under the consenting occupant’s authority to search.

Question 21

hot pursuit

Answer 21

officers in pursuit of a fleeing felon may make a warrantless S&S related to the pursuit, including pursuing a suspect into a private dwelling.

Question 22

exigency

Answer 22

officers may make a warrantless search when the officer has reason to believe that evidence will be destroyed before they can produce a warrant. However, the officer can not create the exigency through an actual or threatened 4A violation.

Question 23

evanescent evidence

Answer 23

evidence that would likely disappear if the police waited to obtain a warrant may be seized w/o a warrant. Bodily intrusions must be reasonable based on the TOTC (balance individual privacy interest vs. gov interest)

Question 24

community caretaking

Answer 24

Officers may make a warrantless entry when faced w/ an emergency situation that threatens the health/safety of the public.

Question 25

stop and frisk

Answer 25

on officer may stop/detain a person when she has RS, based on articulable facts, of past, present, or future criminal activity. RS is based on the TOTC. The stop must be no longer & no more intrusive than reasonably necessary to resolve the officer’s suspicions. A frisk is a pat down of the suspect’s outer clothing to check for weapons. To conduct a frisk, the officer must have RS that the person is armed and presently dangerous.

Question 26

plain feel rule

Answer 26

during a patdown, the officer may feel the suspected item only once to determine if it’s a weapon or contraband by its plain feel; no continued manipulation.

Question 27

traffic stops

Answer 27

based on RS are constitutional. Officer may order all passengers to step out of the vehicle. If officer has RS passengers are armed and dangerous, she may frisk as well as conduct a limited search of the passenger compartment in areas where a weapon may be hidden.

Question 28

detention to obtain warrant

Answer 28

If police have PC that a suspect has hidden contraband/evidence in his house, they may, for a reasonable time, prohibit him from going into the house unaccompanied to prevent him from destroying the evidence while they obtain a warrant. (2 hours is reasonable)

Question 29

Checkpoints

Answer 29

Warrantless sobriety checkpoints are constitutional if: it’s justified by highway safety, it advances the public interest, the intrusion is minimal & the seizure is carried out pursuant to explicit, neutral limitations (routine).

Question 30

Border searches

Answer 30

no warrant or PC required for border searches. RS required to stop a vehicle by the border.

Question 31

administrative inspections

Answer 31

businesses subject to heavy regulation may get warrantless unannounced searches.

Question 32

public school inspections

Answer 32

school officials acting w/o the police may search students person and property w/o warrant when they have reasonable grounds that the search will result in incriminating evidence and the search is not excessively intrusive. Schools can do random drug testing for students involved in extracurricular activities.

Question 33

wiretapping

Answer 33

requires a warrant, unless one party to the conversation has consented to wearing a wire or the conversation takes place in public.

Question 34

exclusionary rule

Answer 34

A judge-made rule that prohibits the prosecution from introducing evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights. Under the fruit of the poisonous tree doctrine, secondary evidence found as a result of the original violation may be inadmissible. The court will balance the need for deterring unlawful police misconduct against the harm of withholding evidence.

Standing – D may only assert the ER to bar evidence obtained in violation of her own constitutional rights.

Inapplicable to – civil proceedings, grand juries, deportation hearings, parole/probation proceedings, or violations of state law.

Question 35

attenuation

Answer 35

If enough additional factors intervene between the original constitutional violation & the final discovery of evidence, the evidence may still be admissible.

Question 36

independent source

Answer 36

If evidence was obtained by a valid source independent of the original constitutional violation, the evidence would not be excluded.

Question 37

inevitable discovery

Answer 37

if other investigative techniques would have inevitably discovered the evidence even w/o the original unconstitutionally obtained information, the evidence will not be excluded.

Question 38

K&A violation

Answer 38

ER is not a remedy

Question 39

ER & Miranda violation

Answer 39

while Miranda violations will exclude D’s statements, the physical fruits of the violation will not be excluded.

Question 40

ER & impeachment

Answer 40

illegally obtained evidence may still be used to impeach D but not any other witnesses. Voluntary confessions admissible to impeach but coerced are not.

Question 41

good faith defense

Answer 41

ER does not apply if the police reasonably relied in good faith on a judicial opinion, statute, ordinance, or defective search warrant. The GFD will not apply if the warrant
(1) was obtained pursuant to an illegal search,
(2) the warrant is facially defective (fails particularity),
(3) the affidavit lacks PC,
(4) police lied or misled the magistrate (or recklessly disregarded the truth), OR
(5) the magistrate was biased (wholly abandons her judicial role).

Question 42

6A right to counsel

Answer 42

provides an automatic right to counsel at all critical stages in a criminal proceeding. Critical stages are where the substantial rights of an accused may be affected. The right attaches once formal adversarial judicial proceedings have commenced and applies where incarceration may be imposed. Once the right is invoked, police may not (use deception to) deliberately elicit from D incriminating statements, related to the offense for which D has been formally charged (offense specific), outside the presence of counsel w/o first obtaining D’s waiver of counsel.

Question 43

waiver of 6A

Answer 43

gov must prove by a preponderance of the evidence that D knowingly, intelligently and voluntarily waived his right to counsel. Must be the product of free choice (not coercion) & must have been made with full awareness of both the nature of the right & the consequences of abandoning it.

Question 44

remedies for 6A violation

Answer 44

If D’s 6A right to counsel was violated during the trial, then the conviction will automatically be reversed. If the right was otherwise violated (non trial denial) then the court will employ the harmless error test

Question 45

ineffective assistance of counsel

Answer 45

to prove ineffective assistance, the claimant must show deficient performance that is truly unreasonable (objective standard), which prejudiced the D & that the result of the proceeding would have been different but for the deficiency. (ie would have been found not guilty). Then D’s conviction will be reversed, and D will be granted a new trial.

Question 46

lineups/ pretrial id

Answer 46

Police may use methods wherein witnesses ID a suspect as the perpetrator of a crime, either by photo ID, lineups, or in-court ID. Pre-trial ID’s must be fair and not involve prejudice so as not to violate 14A DP. (ex: lineups must include others of similar build and appearance). A pre-trial ID will violate DP if, based on the TOTC, the lineup was so unnecessarily suggestive as to give rise to a substantial likelihood or irreparable misidentification.

Question 47

right to counsel at post-charge lineups

Answer 47

a suspect has a right to counsel at any post-charge in-person lineup (pre-trial confrontation). This right does not apply to photo ID methods or when police take physical evidence, such as handwriting examples, voice recordings, blood samples, fingerprints, etc.

Question 48

remedies for unconstitutional lineups

Answer 48

When an improper out-of-court ID procedure violates DP, the court requires suppression of in-court testimony ID. This remedy may not apply if the prosecution can show by clear and convincing evidence, that the in-court ID testimony is based on a reliable independent source. Examples: witness knew D before the crime; witness has a very good look at D during the actual commission of the crime; or existence or absence of ID before the unnecessarily suggestive lineup.

Question 49

5A

Answer 49

as applicable to the states via 14A, provides the privilege against self-incrimination, the right to due process, the right to just compensation for the taking of property by the gov, & further bars subjection to double jeopardy.

Question 50

confessions

Answer 50

D may object to the admissibility of her confession to the police if the confession was involuntary or it was obtained in violation of her Miranda rights

Question 51

Confessions Approach

Answer 51

Step 1: Was the confession voluntary?
Step 2: Were Miranda warnings given?
Step 3: Was the suspect in custody?
Step 4: Was this an interrogation?
Step 5: Did suspect invoke Miranda?
Step 6: Waiver or other exception?

Question 52

Voluntariness (Confession)

Answer 52

14A DP requires the incriminatory confession to be voluntary to be admissible. Voluntariness is determined by looking at the TOTC. The court will consider whether the police subjected the suspect to coercive conduct sufficient to overcome the will of the suspect.
Consider: the manner of police interrogation (threats, coercion, deception) and the suspect’s individual characteristics/vulnerabilities, such as age, education, & familiarity w/ the criminal justice system. If an involuntary confession was erroneously admitted into evidence, the harmless error test will be used to determine if the conviction should be overturned.

Question 53

Miranda

Answer 53

Miranda warnings must be given to a suspect before they are subject to custodial interrogation. Miranda informs the D of her right to remain silent and of the right to an attorney.

Question 54

Custody

Answer 54

A person is in custody if, under the TOTC, she (objectively) does not reasonably believe she is free to terminate an encounter w/ the gov.

Question 55

Interrogation

Answer 55

An interrogation occurs when police engage in any words or conduct that he/she knows or should know is reasonably likely to elicit an incriminating response from the suspect.

Question 56

Invoking Miranda

Answer 56

suspect must clearly and unambiguously assert/exercise her Miranda rights. These rights can be exercised at any time during interrogation. “I think I need a lawyer” is not an equivocal exercise of the right. Once invoked, police must stop all questioning. (not offense specific) However, custodial interrogation may be initiated if the suspect has been re-advised of their Miranda rights, provided a valid waiver, and either (a) counsel is present (b) the suspect initiates the communication, or (c) at least 14 days have passed since the suspect was released from custody.

Question 57

Waiver of Miranda

Answer 57

Gov has the burden to prove that waiver was voluntary, knowing, and intelligent. Must be the product of free choice (not coercion) & must have been made with full awareness of both the nature of the right & appreciation of the consequences of abandoning it.

Question 58

Public Safety Exception

Answer 58

police may conduct an interrogation w/o giving Miranda warnings if there is a reasonable concern for public safety. But the statements must be voluntary and not coerced.

Question 59

Privilege against self-incrimination

Answer 59

every person has a right to refuse to answer any question in any proceeding whenever the response might tend to incriminate her. This privilege only applies to testimonial evidence, not physical evidence. Also protects compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.
Criminal D voluntarily waives this privilege by taking the witness stand to the extent necessary to subject him to cross-examination.

Question 60

Privilege against self-incrim is eliminated if

Answer 60

there is no longer any possibility of incrimination (ex: SOL has run) OR the witness is granted adequate immunity from prosecution.

Question 61

use and. derivative use immunity

Answer 61

If a witness has immunity, their own testimony cannot be used against them. However, evidence that was derived from an independent source may be used to prosecute them.

Question 62

Hybrid 5A & 6A Issue w/ Undercover Informants

Answer 62

6A right to counsel does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. / The 5A Miranda warnings are not req’d where interrogation is by an informant who D does not know is working for the police, b/c the coercive atmosphere of police-dominated interrogation is not present. Illinois v. Perkins.

Question 63

Remedy for Miranda violation

Answer 63

inadmissible in prosecutions case in chief