Barbri Cards Flashcards
What is the approach for 4th Amendment Questions?
- Define the 4th Amendment
- Define Government Conduct
- Ask if it is a SEIZURE (define)
- Define Standing
- WARRANT
5a. Used.
- Warrant Requirement
- Exclusionary Rule
- Fruits of Poisonous Tree
- CONCLUDE
5b. Not Used. (BEG 4 CHAPSS)
- Border Search
- Evanescent
- Good Faith
- Consent
- Hot Pursuit
- Automobile
- Plain View
- SILA
- Stop and Frisk
What is the 4th Amendment?
The 4th Amendment protects citizens against unreasonable searches and seizures. It is applicable to the states via the 14th Amendment. In order for ∆ to assert a 4th Amendment claim, he must show both government conduct and a reasonable expectation of privacy in the place searched or item seized.
How do you define Government Conduct?
In order to establish government conduct, ∆ must show that the police/government was involved in a search or seizure. Here, the cops [searched/seized] [X]. Therefore we have government conduct.
When does a seizure occur?
A seizure occurs when a reasonable person would believe that she is not free to leave to terminate an encounter with the government.
When is a car passenger seized?
A passenger in the car is seized when car pulled over, so he has standing to assert that the car was wrongfully pulled over.
How does someone have standing?
In order to have standing, the person must establish a REP in the item seized or the place searched.
How do you show REP?
To show REP, the person must own the premises/item searched, live on the premises, or be an overnight guest at the premises searched.
How to conclude on Standing?
Because the ∆ can show both government conduct and REP, he has standing to assert a 4th Amendment challenge to the police’s search of [X].
What does a VALID warrant require?
A valid warrant requires that it:
a. Be issued based on probable cause
b. Stated with specificity and particularity and
c. Issued by neutral and detached magistrate
What is the Good Faith exception?
A limitation to the exclusionary rule in general, evidence that is gathered in reliance on a defective
warrant is still admissible, unless:
i. The underlying affidavit was so lacking in probable cause that it could not reasonably be
relied upon.
ii. The warrant was defective on its face
iii. The affiant lied to or misled the magistrate, OR
iv. The magistrate wholly abandoned his judicial role
What is the Exclusionary Rule?
This doctrine prohibits introduction of evidence obtained in violation of the Defendant’s 4th, 5th, and 6th Amendment rights. Under the rule illegally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree evidence must also be excluded.
What is the “Harmless Error Test?”
If the illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the G can show it was harmless error.
What is the Fruits of the Poisonous Tree doctrine?
Fruits of poisonous tree refer to evidence obtained from exploitation of the illegally obtained evidence. It must also be excluded unless the evidence falls into one of the exceptions:
a. Fruits derived from Miranda statements
b. Evidence obtained from a source independent of the original illegality
c. D’s intervening act of free will
d. Inevitable discovery
e. Violations of the knock and announce rule
What are the 4 LIMITATIONS on the Exclusionary rule?
KING
- Knock & Announce Violation — exclusionary rule doesn’t apply to faulty knock (usually 15-20 seconds)
- Impeachment — even non-mirandized statements, except coerced confessions
- Non-guilt phase proceeding — watch for where evidence is introduced, e.g., grand jury / habeus corpus / civil proceedings / parole revocation hearing
- Good Faith Exception — good but for defective search warrant
What to begin with if NO WARRANT was used?
In order for a search and seizure to be valid, the G must have acted pursuant to a valid warrant. If a valid warrant was not used, then all of the evidence will be deemed inadmissible under the exclusionary rule unless an exception to the warrant applies. Here the government did not use a warrant when they [FACTS], therefore all evidence is inadmissible unless an exception applies.
What are the exceptions to the Warrant Requirement?
BIG - CHEAPS
- Border Searchers
- Incident to Lawful Arrest
- Good Faith
- Consent
- Hot Pursuit
- Evanescent
- Automobile Exception
- Plain View
- Stop & Frisk
Warrant Exception: Border Searches
No warranty is need for border searches. No 4th Amendment rights exist at the border. Roving patrols inside the US border may stop a vehicle for questioning if an officer reasonably suspects it contains illegal aliens.
Warrant Exception: Incident to Lawful Arrest
a. The SILA exception allows an officer, subsequent to a lawful arrest to search the immediate area within the arrestee reach where he might obtain a weapon or destroy evidence. This search does not require probable cause.
i. Protective sweeps: immediately adjoining = permitted if reasonable belief, not immediately adjoining = reasonable suspicion
b. SILA & AUTOMIBLE: The SILA exception also applies to arrest while the arrestee is in the car, or has very recently been an occupant in the car. The entire interior compartment may be searched, however not the trunk.
Warrant Exception: Consent
A warrantless search is valid if the police have a voluntary and intelligent consent. Knowledge of a
right to withhold consent is not required. The only issue is whether the scope of the search went
beyond the scope of the consent.
Warrant Exception: Hot Pursuit
The police are allowed warrantless search and seizure when the police are in hot pursuit of a
supposed criminal. When in hot pursuit, the police may even pursue a suspect into the dwelling of a non-suspect.
Warrant Exception: Evanescent
This general exception allows for warrantless seizure anytime the evidence could significantly disappear in time to obtain a warrant.
Warrant Exception: Automobile Exception
If the police have probable cause to believe the automobile contains the fruits, instrumentalities or
evidence of a crime, they may search anywhere in the car, including the trunk and containers, where
probable cause takes them.
Warrant Exception: Plain View
The police may make a warrantless search when they are:
i. Legitimately on the premises
ii. Discover evidence, fruits or instrumentalities of a crime, or contraband,
iii. See that evidence in plain view, And
iv. Have probable cause to believe that the item is evidence.
Warrant Exception: Stop & Frisk
An officer may make a warrantless search of someone without probable cause if the police have an articulable and reasonable suspicion of criminal activity. The officer may frisk over the exterior of the suspect’s clothing for weapons where there is a reasonable suspicion to believe the suspect is armed. Then can reach in if they think it is a weapon or CONTRABAND, as long as they believed armed.
How can an admission be admissible under the 5th Amendment?
For an admission or confession to be admissible under the 5th Amendment privilege against self-
incrimination, a person in custody (reasonable person not ok to leave), prior to interrogation (likely to elicit incriminating statements), be informed of his MIRANDA RIGHTS.
What are the Miranda Rights?
a. Has a right to remain silent
b. Anything he says can be used against him in court
c. Has the right to the presence of an attorney (5th Amendment right), and
d. If cannot afford an attorney, one will be appointed for him if he so desires.
When is Miranda triggered?
Custody AND Interrogation
What is CUSTODY?
formal arrest or other situation where reasonable person in the suspects position would not free to leave or reasonably doesn’t feel free to leave.
Terry stop not custody bc “brief”, police may question during stop
