Exclusionary Rule

Question 1

What is standing in search situations?

Answer 1

a. this means that the search must have intruded upon the D’s privacy. b. passenger cannot challenge search of drivers vehicle

Question 2

What is standing as applied to vehicles?

Answer 2

a. passenger in a vehicle when it is searches does not have standing to challenge the search. b. BUT passenger in car is “seized” if car is stopped, so passenger can challenge seizure.

Question 3

What is fruit of the poisonous tree?

Answer 3

i. physical and testimonial evidence can also be obtained by exploiting prior unconstitutional conduct, e.g. a confession obtained as a result of an earlier arrest.

Question 4

What is the FOPT rule?

Answer 4

Any derivative or secondary evidence is fruit of the poisonous tree and like direct evidence obtained in violation of the 4th amendment, it is inadmissible in the prosecutor’s case in chief. in other words, if a search is unreasonable, all derivative evidence must be excluded.

Question 5

What are the FOPT rule exceptions?

Answer 5

1. impeachmenta. D who takes witness stand can be impeached with inadmissible FOPT evidenceb. evidence obtained in violation of Miranda or in an unreasonable search can be used to impeach. c. involuntary confession cannot be used to impeach (because unreliable)

Question 6

What does FOPT not apply to?

Answer 6

Miranda confessions.

Question 7

What are the exclusion exceptions?

Answer 7

i. attenuation of taintii. inevitable discovery iii. independent source iv. Good faith

Question 8

What is attenuation of taint? (LOL)

Answer 8

1. the number and nature of the links between the illegality and police acquisition of the evidence may be such that the taint becomes attenuated. 2. i.e. if the causal line is really long or a lot of stuff happened in between, evidence can be admissible. e.g. illegally arrested D gets released and comes back to confess. He came back on his own.

Question 9

What is ii. inevitable discovery?

Answer 9

the evidence would inevitably have been obtained legally.

Question 10

What is independent source?

Answer 10

1. this doctrine applies when there is a source for the discovery and seizure of the evidence that is distinct from the original illegality. 2. e.g. parallel investigation initiated by other officers.

Question 11

An independent source need not be…

Answer 11

played out completely, e.g. if officers who would have validly searched the premises stop because the other officers did it.

Question 12

The doctrine of good faith does not apply to…

Answer 12

warrantless searches unless statute allowed search.

Question 13

When does GF exception apply?

Answer 13

2. a reasonable officer would believe that the actions taken were reasonable because of: a. a warrant, or b. a statute later held invalid

Question 14

An Officer’s “good faith” overcomes constitutional deficits in probable cause and particularity, with four categorical exceptions:

Answer 14

a. the affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it. b. warrant so facially deficient in particularity that officers could not reasonably presume it to be validi. can’t be too vague4. Affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding. 5. The magistrate who issued the warrant is biased in favor of the prosecution.

Question 15

How do you analyze the good faith exception?

Answer 15

6. How to analyze a. Was there a warrant? b. Was the warrant defective? c. Did cops have a good reason to rely on the warrant?

Question 16

When does someone NOT have standing in a residence?

Answer 16

1. mere authorized presence in premises searched is not enough. 2. Presence pursuant to a short and “commercial” stay is not enough 3. presence to engage in illegal commercial activity (such as bagging drugs) is definitely not enough for standing.

Question 17

When does someone have standing in a residence?

Answer 17

1. if the person owns the premises she always has standing. 2. if the person does not own the premises but resides there then she always has standing. 3. presence as part of overnight personal visit is enough for standing to challenge entry into the home or areas of the home that overnight guests can be expected to access (e.g. living room, dining room, bathroom) 4. no standing for areas where overnight guests usually don’t access, e.g. guest crashing on the couch cannot challenge search to master bedroom.

Question 18

What are the rules regarding standing of seized property?

Answer 18

i. ownership of property seized is usually not sufficient ii. standing is determined based on whether you have a reasonable expectation of privacy in the area searched. iii. simply owning the item seized is not enough to create standing 1. e.g. if i hide drugs in friend’s purse, no standing to challenge search of purse. Even though I own the drugs, I have no reasonable expectation of privacy in friend’s purse. 2. e.g. Passenger in a car. There’s a bag of drugs with his name on it in the back seat. No standing to challenge search of car. 3. BUT, if you have a reasonable expectation of privacy as to the item, you can challenge search/seizure, e.g. your coat or purse.