The 4th Amendment - Sept. 25 - Nov. 8

Question 1

What threshold requirement must be met for the Fourth Amendment to apply? (Q)

Answer 1

For the Fourth Amendment to apply, there must be government action constituting a search or seizure. The Fourth Amendment prohibits only unreasonable searches and seizures by the government. Thus, without (1) government action and (2) a search or seizure, the Fourth Amendment does not apply.

Question 2

Has the Fourth Amendment been violated, simply because there was government action constituting a search or seizure? (Q)

Answer 2

No. The Fourth Amendment has not been violated, simply because there was government action constituting a search or seizure. A search or seizure by the government is necessary for the Fourth Amendment to apply. However, the Fourth Amendment is violated only if the search or seizure is unreasonable.

Question 3

What is the Fourth Amendment exclusionary rule? (Q)

Answer 3

The Fourth Amendment exclusionary rule is the general remedy for any Fourth Amendment violation. The exclusionary rule provides that evidence the government obtains due to a Fourth Amendment violation is generally inadmissible as evidence of guilt in a criminal trial against the person whose rights were violated. There are exceptions to the exclusionary rule.

Question 4

Do the Fourth Amendment’s requirements apply to state and local governments? (Q)

Answer 4

Yes. The Fourth Amendment’s requirements apply to state and local governments. The Fourth Amendment, by its own terms, applies only to the federal government. However, the U.S. Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause, which applies to the states, to incorporate the Fourth Amendment’s requirements against the state and local governments.

Question 5

In general, what degree of force does the Constitution permit police to use when lawfully seizing a person? (Q)

Answer 5

In general, the Constitution permits police to use only reasonable force under the circumstances when lawfully seizing a person. Put differently, the Constitution prohibits excessive force under the circumstances.

The analysis is objective. If a reasonable person in the officer’s position would believe that the degree and intrusiveness of the force outweigh the need for it, then the force is excessive. Relevant factors include:

the need to make split-second decisions in dangerous and quickly evolving situations,
the seriousness of the crime,
the extent to which the suspect is dangerous to the officer or others, and
whether the suspect is resisting a lawful arrest or trying to flee.

Question 6

Under what circumstances does the Constitution permit police to use deadly force to effectuate a lawful seizure? (Q)

Answer 6

The Constitution permits police to use deadly force to effectuate a lawful seizure only if they have probable cause to believe that the subject presently poses a danger of death or serious bodily injury to the officers or others. This is usually satisfied if the suspect recently committed a violent crime (typically a violent felony), or if police reasonably believe the suspect is carrying a deadly weapon.

Question 7

What is required for government action to constitute a search under the Fourth Amendment? (Q)

Answer 7

For government action to constitute a search under the Fourth Amendment:

the government must intrude upon an area, whether physically or by using technology to eavesdrop upon, track, or monitor the area remotely;
the subject must have a subjective, sincere expectation of privacy in the object of the search; and
the expectation must be one that society is prepared to recognize as objectively reasonable.
Put differently, the subject must actually expect that the object of the search will remain private, and that expectation must be reasonable. If either requirement fails, there is no search.

Question 8

What is the reasonable-expectation-of-privacy (REOP) test? (Q)

Answer 8

The reasonable-expectation-of-privacy test is the test used to determine whether government activity constitutes a search under the Fourth Amendment. The test has a subjective and an objective prong.

Under the subjective prong, the court must ask whether the target of the search had an actual expectation that the activity observed or information obtained by the government was private. If so, then the court must ask whether that expectation of privacy was one that society would accept as reasonable. If the answer to both questions is yes, there was a search. If the answer to either is no, there was no search.

Question 9

What is the trespass theory of the Fourth Amendment? (Q)

Answer 9

The trespass theory of the Fourth Amendment, also known as the property theory, holds that government actors conduct a search if they intrude (or trespass) on a person’s lawfully owned home, papers, or effects (i.e., personal property) with the intention of obtaining information. This theory does not consider whether the conduct would infringe the person’s reasonable expectations of privacy.

It was long thought that the U.S. Supreme Court had abrogated the trespass theory. However, recent precedent has made it possible that the trespass theory could constitute an independent test for a Fourth Amendment search. Even so, the Court has not fully settled the matter, and in any case, the reasonable-expectation-of-privacy test is still predominant.

Question 10

Under the Fourth Amendment, does a person have a reasonable expectation of privacy in what the person knowingly exposes to the public? (Q)

Answer 10

No. Under the Fourth Amendment, a person has no reasonable expectation of privacy in what the person knowingly exposes to the public (e.g., generally visible physical characteristics, such as appearance or voice, or the exterior of luggage, including smell). A Fourth Amendment search requires that the government intrude upon the subject’s actual, reasonable expectation of privacy. Thus, if the government merely observes something from a public vantage point, there is no search.

Question 11

Under the Fourth Amendment, does a person have a reasonable expectation of privacy in information the person voluntarily conveys to another? (Q)

Answer 11

No. Under the Fourth Amendment, a person has no reasonable expectation of privacy in information the person voluntarily conveys to another. A Fourth Amendment search requires that the government intrude upon the subject’s actual, reasonable expectation of privacy. Thus, if a person voluntarily shares information with another who, in turn, voluntarily shares that information with the government, there is no search (e.g., garbage placed outside for collection, information disclosed to a bank and reflected in financial statements, or voluntary statements to a secret informant).

Question 12

For purposes of the Fourth Amendment, what is the third-party doctrine? (Q)

Answer 12

For purposes of the Fourth Amendment, the third-party doctrine is the rule that a person does not have a reasonable expectation of privacy in information that the person voluntarily discloses to others (e.g., spoken words, financial information provided to a bank, phone numbers dialed, or garbage left for collection). Thus, government efforts to obtain this information from the third-party recipient are not searches under the Fourth Amendment.

Question 13

Law-enforcement officers suspected a homeowner of running an illegal casino from her basement. The homeowner regularly placed her garbage at the curb outside her home for collection. The officers asked the local trash collector to bring them the homeowner’s garbage instead of taking it to the landfill. When the officers reviewed the trash, they discovered receipts suggesting gambling activity. The officers then went to the bank at which the homeowner maintained her deposit accounts. They directed the bank manager to provide them with copies of the homeowner’s recent bank statements. The statements revealed large, periodic deposits of cash suggesting illegal gambling.

Have the officers conducted any search for purposes of the Fourth Amendment? (Q)

Answer 13

No. The officers have conducted no search for purposes of the Fourth Amendment. A Fourth Amendment search generally occurs when law-enforcement officers infringe upon a person’s actual and reasonable expectation of privacy in the area observed or the information obtained. However, under the third-party doctrine, individuals lack any reasonable expectation of privacy in information that they voluntarily convey to others.

Here, the homeowner voluntarily surrendered the trash containing the receipts to the collector by placing it on the curb. Similarly, she voluntarily surrendered her financial information to the bank by maintaining the deposit accounts. So, the homeowner lacked a reasonable expectation of privacy in the receipts and the financial information. Thus, the officers’ efforts to obtain these items never constituted a Fourth Amendment search.

Question 14

Under the Fourth Amendment, does a lawfully incarcerated prisoner have a reasonable expectation of privacy in the contents of his or her prison cell? (Q)

Answer 14

No. Under the Fourth Amendment, a lawfully incarcerated prisoner has no reasonable expectation of privacy in the contents of his or her prison cell. A Fourth Amendment search requires that the government intrude upon the subject’s actual, reasonable expectation of privacy. Thus, it is not a search for the police to invade or rummage through the contents of an inmate’s cell.

Question 15

Under the Fourth Amendment, in what place does a person generally enjoy the strongest reasonable expectation of privacy? (Q)

Answer 15

Under the Fourth Amendment, a person generally enjoys the strongest reasonable expectation of privacy in his or her home. This is true whatever form the home takes–e.g., house, leased apartment, mobile home, and so on. Any government intrusion upon the home is very likely to constitute a Fourth Amendment search.

Question 16

Does an overnight guest in a home enjoy a reasonable expectation of privacy in the home? (Q)

Answer 16

Yes. An overnight guest in a home enjoys a reasonable expectation of privacy in the home. The expectation extends to those areas of the home where an overnight guest would normally be expected to go (e.g., the guest’s sleeping quarters and personal belongings).

Question 17

Does a guest in a home who is there for purely commercial purposes enjoy a reasonable expectation of privacy in the home? (Q)

Answer 17

No. A guest in a home who is there for purely commercial purposes (e.g., to perform maintenance for the owner or consult with the owner on financial matters) enjoys no reasonable expectation of privacy in the home. Thus, a search of the home does not violate the guest’s Fourth Amendment rights.

Question 18

For purposes of the Fourth Amendment, what is curtilage? (Q)

Answer 18

For purposes of the Fourth Amendment, curtilage is the area immediately surrounding the home and closely related to it, which hosts the sort of intimate activity normally associated with the home itself and life’s private activities (e.g., a garage connected to the home). The Fourth Amendment treats curtilage similarly to the home itself. The home harbors the strongest reasonable expectation of privacy; that in the curtilage is close or equal to it. Thus, any government intrusion upon the curtilage is very likely to constitute a Fourth Amendment search.

Question 19

In general, is there a reasonable expectation of privacy in buildings other than the home, for Fourth Amendment purposes? (Q)

Answer 19

Yes. In general, there is a reasonable expectation of privacy in buildings other than the home (e.g., warehouses, freestanding garages, or office buildings) for Fourth Amendment purposes. This expectation is generally not as strong as that in the home or curtilage, however.

Question 20

For purposes of the Fourth Amendment, what is an open field? (Q)

Answer 20

For purposes of the Fourth Amendment, an open field is some portion of a parcel of real property that is left out in the open and visible to the public (e.g., an outdoor patio or open backyard). There is no reasonable expectation of privacy regarding anything that is exposed to viewing within, or from within, an open field—even though the open field is privately owned and may be fenced in or otherwise concealed. Accordingly, government intrusion upon an open field is not a search, even if the government uses forcible or trespassory means to access the open field.

Question 21

What is the open-fields doctrine? (Q)

Answer 21

The open-fields doctrine holds that a person has no Fourth Amendment protection against government intrusion into property left out in the open, far removed from the person’s home, even if the person takes steps to keep people off the property, such as fencing or signage. Physical areas closely connected to the home, known as curtilage, are considered part of the home. The government may not intrude upon curtilage without complying with the Fourth Amendment. The distinction between curtilage and open fields turns on these factors:

the proximity of the area to the home,
the way the person uses the property,
whether the area is enclosed, and
any steps taken to shield the area from outside view.
The more intimately connected an area is with the home and related activities, and the greater the precautions against public visibility, the more likely the area is curtilage.

Question 22

What four factors do courts consider to distinguish between curtilage and open fields? (Q)

Answer 22

To distinguish between curtilage and open fields, courts typically consider these four factors:

the area’s proximity to the home;
whether the area is inside some enclosure, such as a fence, surrounding the home;
how the area is used; and
any steps taken to prevent passersby from observing the area.
In general, the more intimately connected an area is with the home and related activities, and the greater the precautions against public visibility, the more likely the area constitutes curtilage.

Question 23

Under the Fourth Amendment, does an individual have a reasonable expectation of privacy in his or her person? (Q)

Answer 23

Yes. Under the Fourth Amendment, an individual has a reasonable expectation of privacy in his or her person. This is particularly true of the intimate parts of one’s person or articles connected to the person (e.g., clothing, purses, wallets, and so on). By contrast, there is no reasonable expectation of privacy in the parts of one’s person that one knowingly exposes to the public.

Question 24

Under the Fourth Amendment, is there generally a reasonable expectation of privacy in an automobile and its contents? (Q)

Answer 24

Yes. Under the Fourth Amendment, there is generally a reasonable expectation of privacy in an automobile and its contents. However, that expectation is generally much weaker than the expectation of privacy in other areas, such as the home or the intimate parts of one’s person. That is because automobiles are highly mobile and frequently exposed to public view.

Question 25

Under what circumstances does police use of a sense-enhancing device constitute a Fourth Amendment search? (Q)

Answer 25

7 What threshold requirement must be met for the Fourth Amendment to apply? 8 Has the Fourth Amendment been violated, simply because there was government action constituting a search or seizure? 9 What is the Fourth Amendment exclusionary rule? 10 Do the Fourth Amendment’s requirements apply to state and local governments? 11 In general, what degree of force does the Constitution permit police to use when lawfully seizing a person? 12 Under what circumstances does the Constitution permit police to use deadly force to effectuate a lawful seizure? 13 What is required for government action to constitute a search under the Fourth Amendment? 14 What is the reasonable-expectation-of-privacy test? 15 What is the trespass theory of the Fourth Amendment? 16 Under the Fourth Amendment, does a person have a reasonable expectation of privacy in what the person knowingly exposes to the public? 17 Under the Fourth Amendment, does a person have a reasonable expectation of privacy in information the person voluntarily conveys to another? 18 For purposes of the Fourth Amendment, what is the third-party doctrine? 19 Law-enforcement officers suspected a homeowner of running an illegal casino from her basement. The homeowner regularly placed her garbage at the cu... 20 Under the Fourth Amendment, does a lawfully incarcerated prisoner have a reasonable expectation of privacy in the contents of his or her prison cell? 21 Under the Fourth Amendment, in what place does a person generally enjoy the strongest reasonable expectation of privacy? 22 Does an overnight guest in a home enjoy a reasonable expectation of privacy in the home? 23 Does a guest in a home who is there for purely commercial purposes enjoy a reasonable expectation of privacy in the home? 24 For purposes of the Fourth Amendment, what is curtilage? 25 In general, is there a reasonable expectation of privacy in buildings other than the home, for Fourth Amendment purposes? 26 For purposes of the Fourth Amendment, what is an open field? 27 What is the open-fields doctrine? 28 What four factors do courts consider to distinguish between curtilage and open fields? 29 Under the Fourth Amendment, does an individual have a reasonable expectation of privacy in his or her person? 30 Under the Fourth Amendment, is there generally a reasonable expectation of privacy in an automobile and its contents? 31 Under what circumstances does police use of a sense-enhancing device constitute a Fourth Amendment search? 32 In general, does the mere fact that police have trespassed upon private property mean that a Fourth Amendment search has taken place? 33 Under the Fourth Amendment, what is the seizure of a person? 34 For Fourth Amendment purposes, what is the seizure of property? 35 For Fourth Amendment purposes, what is an arrest? 36 Under the Fourth Amendment, may an interference with a person’s liberty constitute a seizure, even if it falls short of a full-blown arrest? 37 Police officers patrolling an urban area saw a young man walking along a sidewalk. One officer suggested that they check whether the young man had ... 38 What is a warrant? 39 What four general requirements must a warrant satisfy to be valid under the Fourth Amendment? 40 Under the Fourth Amendment, what is the warrant requirement? 41 What is probable cause? 42 For a valid search warrant to issue, there must be probable cause to support what proposition? 43 For a valid arrest warrant to issue or a valid warrantless arrest to take place, there must be probable cause to support what proposition? 44 What is an anticipatory search warrant? 45 Must probable cause exist when a warrant is executed? 46 For purposes of the warrant requirement, who is a magistrate? 47 What is required for a magistrate to be constitutionally qualified to issue a warrant? 48 What does it mean to say that a magistrate is neutral and detached? 49 For purposes of the warrant requirement, what is an oath or affirmation? 50 Under the Fourth Amendment, what must a person prove to invalidate a facially valid warrant as issued based on false information? 51 In general, what facts must an oath or affirmation supporting a warrant application set forth to enable the magistrate to make the probable-cause d... 52 Are assertions based on the requesting officer’s personal knowledge sufficiently reliable to support a magistrate’s probable-cause determination? 53 If an officer relies on information obtained from an informant to support a warrant application, must the informant’s identity be disclosed to the ... 54 Under what circumstances will information obtained from a confidential informant be deemed sufficiently reliable to support a probable-cause determ... 55 What factors do courts consider to determine whether evidence supporting probable cause is sufficiently current to be reliable? 56 What is the particularity requirement for warrants? 57 What is required for a search warrant to describe the place to be searched with sufficient particularity? 58 For the particularity requirement for warrants to be satisfied, must the requisite particularity appear on the face of the warrant? 59 What is required for a warrant to describe the persons to be seized with sufficient particularity? 60 What is required for a warrant to describe the things or property to be seized with sufficient particularity? 61 Within what timeframe after a valid warrant has issued must police execute the warrant? 62 What is the general permissible scope of a search or seizure pursuant to a valid warrant? 63 If police are executing a valid warrant, under what circumstances may they detain individuals not named in the warrant? 64 May police restrict entry into private premises while awaiting a warrant authorizing a search of the premises? 65 What is the knock-and-announce rule? 66 Under what circumstances does the knock-and-announce rule not apply? 67 Is the suppression of evidence a remedy for police violations of the knock-and-announce rule? 68 What is the plain-view doctrine? 69 Under what circumstances may police lawfully arrest an individual in a public place without a warrant? 70 Under what circumstances may police lawfully cross the threshold into an arrestee’s home to effectuate the arrest? 71 If police have a valid arrest warrant for a particular arrestee, do they need separate justification to enter the arrestee’s home and search for th... 72 If police have a valid arrest warrant for a particular arrestee, does that alone justify entering the home of a third party who does not live with ... 73 If police have probable cause to effectuate a lawful, warrantless arrest, do their subjective motivations for the arrest matter? 74 If police lawfully arrest an individual without a warrant, at what point must they release the individual from custody? 75 In general, what is the search-incident-to-arrest doctrine? 76 May police seize items they find during a search incident to a lawful arrest? 77 At what point in time must a search incident to a lawful arrest take place, relative to the arrest itself? 78 If an officer has lawful grounds to arrest an individual but never actually arrests the individual, may the officer conduct a search incident to ar... 79 For there to be a lawful search incident to a warrantless arrest, at what point in time must there be probable cause justifying the arrest? 80 What is reasonable suspicion? 81 If a lawful arrest takes place inside a home or other structure, what is the permissible search area of a search incident to the arrest? 82 If police lawfully arrest someone who occupies or recently occupied a nearby automobile, what is the permissible search area of a search incident t... 83 Can a person’s presence in a high-crime area, standing alone, establish either reasonable suspicion or probable cause that the person has committed... 84 Can a person’s history of criminal activity, standing alone, establish either reasonable suspicion or probable cause that the person has committed ... 85 For purposes of the Fourth Amendment, what is the good-faith exception? 86 Does the good-faith exception apply to the execution of warrants? 87 A detective learned that drugs were being smuggled from one specific warehouse at a shipyard with seven warehouses. The detective submitted a warra... 88 What is a Terry stop? 89 Without a warrant or probable cause, may law-enforcement officers lawfully search a suspect by using their hands to pat down the outside of a suspe... 90 For purposes of the Fourth Amendment, what is the distinction between an investigatory stop and an arrest? 91 During a lawful Terry stop, may a police officer demand to see identification? 92 During a lawful Terry stop, may a police officer ask the subject questions? 93 In general, what is the permissible duration of a lawful Terry stop? 94 In general, what is the permissible scope of investigative activity during a lawful Terry stop? 95 May an officer conducting a lawful Terry stop arrest the subject, if the subject refuses to comply with the officer’s demands? 96 Under what circumstances may an officer conducting a lawful Terry stop detain and investigate personal property? 97 Without probable cause or a warrant, under what circumstances may police stop a vehicle, detain its occupants, or search the vehicle or its occupants? 98 What is the plain-feel doctrine? 99 A civilian flagged down an officer on patrol, pointed to a man across the street, and stated that the man had just robbed her at gunpoint. The offi... 100 What is the exigent-circumstances exception to the warrant requirement? 101 Can the exigent-circumstances exception apply if police themselves create the exigency giving rise to the exception? 102 What is the hot-pursuit doctrine? 103 Do some courts apply the hot-pursuit doctrine if the person being pursued committed a misdemeanor? 104 In general, what are the permissible scope and duration of police activity under the exigent-circumstances exception to the warrant requirement? 105 Under what circumstances may police enter private premises to seek and subdue a dangerous criminal without a warrant? 106 What is the emergency-aid exception to the warrant requirement? 107 Police officers suspected that drug dealers were distributing drugs from a house. Without a warrant, the officers went to the house and began pound... 108 What is the automobile exception to the warrant requirement? 109 Is the automobile exception to the warrant requirement the only constitutional rule permitting police to search or detain an automobile without a w... 110 Can an individual’s consent legitimize police conduct that would otherwise violate the Fourth Amendment? 111 For consent to be valid under the Fourth Amendment, must the consent be knowing, intelligent, and voluntary? 112 Under what circumstances is consent voluntary under the Fourth Amendment? 113 For consent to be voluntary under the Fourth Amendment, must police inform the subject that he or she may refuse to consent? 114 Is a person’s consent involuntary for Fourth Amendment purposes, simply because the person is subject to a seizure or in police custody when giving... 115 Are the subject’s mental and other characteristics a factor courts consider when evaluating whether consent to police conduct is voluntary for Four... 116 Who can give valid consent for police to search a home or other private property? 117 Without independent justification, under what circumstances may police search a home or other private property over the express objection of someon... 118 May probationers and parolees be required to submit to suspicionless, warrantless searches of their homes and effects as a condition of early release? 119 Under what circumstances may a government administrative agency responsible to supervise a certain industry conduct a warrantless search of commerc... 120 In the context of administrative inspections of commercial premises, what is required for the regulatory scheme to provide a constitutionally adequ... 121 What are the requirements for a valid warrant authorizing an administrative inspection of commercial premises? 122 Does the Fourth Amendment exclusionary rule apply to evidence of a crime that happens to turn up during a lawful administrative inspection? 123 What is an inventory search? 124 May police conduct an inventory search without a warrant? 125 If police discover contraband or evidence of a crime during a valid warrantless inventory search, may they seize that evidence under the plain-view... 126 In general, what are the special-needs exceptions to the warrant requirement? 127 May police strip search a lawfully detained individual without a warrant? 128 Without a warrant or individualized suspicion, may police set up sobriety checkpoints at fixed locations on public roadways? 129 Without a warrant or individualized suspicion, may police on roving patrols stop motorists at their own discretion to check for sobriety? 130 Without a warrant or individualized suspicion, may police set up fixed checkpoints on the public roads to check passing motorists for possession of... 131 Without a warrant or individualized suspicion, may police set up fixed checkpoints at which all motorists are briefly stopped and asked questions c... 132 Without a warrant or individualized suspicion, may immigration officials set up fixed checkpoints at or near the border to briefly stop vehicles an... 133 What, at minimum, is required for immigration officials on roving border patrol to stop a vehicle to question occupants about immigration status an... 134 Under what circumstances may immigration officials search an automobile at or near the border without a warrant? 135 Under what circumstances may a public-school official search a student and his or her belongings without the student’s consent? 136 Without a warrant or individualized suspicion, may public-school officials subject students participating in extracurricular activities to random u... 137 Does the Fourth Amendment apply if the government seeks to subject its employees to a search or seizure? 138 In the context of the Fourth Amendment exclusionary rule, what is the doctrine of standing? 139 What is the impeachment exception to the Fourth Amendment exclusionary rule? 140 What does it mean to say that police obtained evidence as an indirect result of a constitutional violation? 141 What is the derivative-evidence doctrine? 142 Does the derivative-evidence doctrine apply to incriminating statements obtained as an indirect result of a Fourth Amendment violation? 143 May live witness testimony be excluded under the derivative-evidence doctrine? 144 In what proceedings does the Fourth Amendment exclusionary rule apply? 145 What is the independent-source rule? 146 What is the inevitable-discovery doctrine? 147 A defendant was unlawfully arrested in violation of the Fourth Amendment. Immediately after the arrest, police forced the defendant to participate ... 148 Does the Fifth Amendment privilege against compulsory self-incrimination apply against state and local governments? 149 What four Miranda warnings must precede a custodial interrogation by police? 150 What does Miranda require for any statement by a suspect in response to custodial interrogation to be admissible in the prosecution’s case-in-chief... 151 To what must the government subject an individual for the requirements of the Miranda doctrine to apply? 152 What is interrogation, for purposes of the Miranda doctrine? 153 What is custody, for purposes of the Miranda doctrine? 154 May the prosecution use a statement obtained in violation of a defendant’s Miranda rights to impeach the defendant's testimony at trial? 155 If a person subjected to custodial interrogation has invoked the Miranda right to remain silent, what must the officers conducting the interrogatio... 156 If a person subjected to custodial interrogation invokes the Miranda right to counsel, may the interrogation continue? 157 If a person subject to custodial interrogation invokes the Miranda right to counsel, may the person later waive the right without the assistance of... 158 A police officer took a burglary suspect into custody and brought him to the stationhouse for interrogation. The suspect, after being advised of hi... 159 Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect in... 160 A detective took a burglary suspect into custody, brought him to the stationhouse for interrogation, and advised him of his Miranda rights. The sus... 161 Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect in... 162 Does the Miranda exclusionary rule apply to physical evidence? 163 What is the public-safety exception to the Miranda rule? 164 What is a Miranda two-step scenario? 165 In a Miranda-two-step scenario, what four factors make it less likely that Miranda’s exclusionary rule will apply to the second statement? 166 In a Miranda-two-step scenario, what five factors make it more likely that Miranda’s exclusionary rule will apply to the second statement? 167 For due-process purposes, what is a coerced statement? 168 If police coerce a suspect into making a self-incriminating statement, is the statement admissible against the suspect at a criminal trial as subst... 169 If police coerce a suspect into making a self-incriminating statement, is the statement admissible at a criminal trial against the suspect to impea... 170 If police coerce an incriminating statement from a suspect, are any physical fruits of the statement admissible at a criminal trial against the sus... 171 If police coerce an incriminating statement from a suspect out of a need to avert an imminent threat to public safety, is the statement admissible ... 172 For purposes of determining whether police coerced a suspect to make a statement, what is coercive conduct? 173 Is a suspect’s statement necessarily coerced or involuntary, just because police lied or made false promises to induce the statement? 174 What three factors do courts generally consider in determining whether coercive police conduct actually overbore a suspect’s will and caused the su... 175 Police officers patrolling a public park saw a man place a duffle bag inside a garbage can and then walk away. The officers examined the bag and so... 176 Does the Fifth Amendment privilege against compulsory self-incrimination apply only at criminal trials? 177 Does the Fifth Amendment privilege against compulsory self-incrimination afford a criminal defendant a right to refuse to testify at all at trial? 178 If a criminal defendant elects not to testify at trial, may the prosecutor comment to the factfinder about that decision? 179 To impeach a criminal defendant’s testimony, may the prosecutor comment to the factfinder about the defendant’s decision not to testify in an earli... 180 Does the privilege against compulsory self-incrimination afford a witness who is not a criminal defendant the right to refuse to testify at all? 181 If a witness testifies as to a particular fact or belief, may the witness invoke the privilege against compulsory self-incrimination to avoid provi... 182 What three requirements must a communication meet for the privilege against compulsory self-incrimination to apply to it? 183 Under what circumstances is a communication generally compelled? 184 Under what circumstances is a communication generally incriminating, for purposes of the privilege against compulsory self-incrimination? 185 What is use-and-derivative-use immunity? 186 For purposes of the privilege against compulsory self-incrimination, what is testimonial evidence? 187 In general, does the privilege against compulsory self-incrimination apply to written documents that the witness created of his or her own volition? 188 If a criminal defendant elects to testify at trial, may the defendant assert the privilege against compulsory self-incrimination on the witness stand? 189 The police forced a suspect to stand in a lineup and utter words that the perpetrator of a crime allegedly said while committing the offense. Does... 190 As part of a criminal investigation, the police forced a suspect to produce a writing sample so that they could compare the suspect’s writing to th... 191 Can an out-of-court identification of a criminal defendant be suppressed as unduly suggestive under the Due Process Clause if the identification wa... 192 Could evidence of a pretrial identification procedure by law enforcement be admissible even if the procedure producing it was unnecessarily suggest... 193 If law-enforcement officers employ an unnecessarily suggestive identification process, what principal factors will a court consider when determinin... 194 In general, if a witness’s pretrial identification of a defendant as the perpetrator is inadmissible on due-process grounds, may the witness identi... 195 Could evidence of a pretrial identification procedure by law enforcement be admissible even if it is so suggestive as to undermine the reliability ... 196 Is a one-person show-up procedure categorically an unconstitutionally suggestive procedure under the Due Process Clause? 197 Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ... 198 Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ... 199 Just after an armed robbery, the victim approached a police officer and described the robber as a young man wearing a t-shirt and jeans. Shortly af... 200 The victim of a robbery chased the perpetrator but lost sight of him. The victim entered a subway station. Inside, she saw two police officers ques... 201 While investigating a robbery, a detective had a hunch that the perpetrator was a suspect whom he had encountered while investigating unrelated cri... 202 A kidnapper held a victim captive in his basement. Each morning and evening, the kidnapper would enter the basement to bring the victim food and sp... 203 Does the Sixth Amendment right to counsel apply against state and local governments? 204 At what point in time does the Sixth Amendment right to counsel attach? 205 In general, what are the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel? 206 Does the Sixth Amendment right to counsel imply an exclusionary remedy? 207 Once the Sixth Amendment right to counsel has attached with respect to an offense, under what circumstances may police actively and deliberately se... 208 Is the Sixth Amendment right to counsel the same as the Miranda right to counsel? 209 Under the Sixth Amendment, are all criminal defendants entitled to receive an appointed attorney at government expense? 210 Is an indigent criminal defendant entitled to appointed defense counsel at government expense in every criminal case? 211 Under what circumstances may a court refer to a prior criminal conviction in enhancing a defendant’s current sentence? 212 Under what circumstances does the Sixth Amendment guarantee a criminal defendant the right to be represented by an attorney of the defendant's choo... 213 Does a criminal defendant have a constitutional right to self-representation? 214 Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel on the first round of appeal from a criminal con... 215 Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings? 216 If the constitutional right to counsel applies, does it guarantee criminal defendants the right to receive the effective assistance of counsel? 217 Under what circumstances does the Due Process Clause guarantee an indigent criminal defendant a right to appointed counsel in a parole or probation... 218 A criminal defendant was not a citizen of the United States. The defendant was indicted for a crime. The defendant has considered pleading guilty t... 219 A criminal suspect was arrested for robbery. Soon after, the state’s criminal trial court conducted a preliminary hearing to determine whether ther... 220 A defendant was formally charged with a crime. Law-enforcement officers sent an undercover informant to try to elicit incriminating information fro... 221 A defendant was arrested for and formally charged with a crime; he remained in jail pending trial. Law-enforcement officers sent an undercover agen... 222 A defendant was arrested and charged with robbery; he remained in jail pending trial. Police also suspected the defendant of unrelated drug crimes.... 223 A defendant was charged with armed robbery, carrying a minimum sentence of 10 years. The prosecutor offered the defendant a chance to plead guilty ... 224 Police suspected a man and his friend of robbing a store. Based on surveillance video, police identified the man and arrested him. The man was char... 225 A protest turned violent; the organizer was arrested and charged with inciting a riot. The organizer reached out to a free-speech attorney for assi... 226 A criminal defendant was accused of drunk driving, a misdemeanor carrying a maximum penalty of either five months in jail or a fine of $2,000. When... 227 A criminal suspect was participating in a lineup identification conducted after his indictment. Is the suspect entitled to the presence of an attor... 228 A criminal suspect was participating in a lineup identification conducted immediately after his arrest. No formal charges had been filed against th... 229 Shortly after an alleged bank robbery, police arrested a suspect near the scene, took him to the police station, and made him stand in a lineup. Be... 230 Does the U.S. Constitution afford a criminal defendant a right to plead guilty? 231 What is a plea bargain? 232 What requirements must a guilty plea in a criminal case meet to be constitutionally valid? 233 What is required for a guilty plea to be knowing and intelligent? 234 Under the U.S. Constitution, may a prosecutor threaten a criminal defendant with more severe charges if the defendant refuses to plead guilty? 235 If the prosecution violates a plea agreement under which a defendant has pleaded guilty, what remedies are available to the defendant? 236 What is required for a guilty plea to become effective and bind the defendant? 237 Does the U.S. Constitution afford criminal defendants a right to a trial by jury in every criminal case? 238 Does the U.S. Constitution require that a jury in a criminal case have 12 members? 239 In a federal criminal case in which the Sixth Amendment affords the defendant a right to a jury trial, must the jury render a unanimous verdict to ... 240 Does the U.S. Constitution require that a jury in a state-court criminal trial render a unanimous verdict to convict the defendant? 241 In the context of jury selection, what is the fair-cross-section requirement? 242 If the defendant establishes that the pool of potential jurors did not represent a fair cross-section of the community, does this entitle the defen... 243 In jury selection, what is a peremptory challenge? 244 What limitations does the U.S. Constitution impose on the use of peremptory challenges in a criminal case? 245 Does the U.S. Constitution impose any restriction on a criminal defendant’s ability to exercise peremptory challenges in the course of jury selection? 246 A criminal defendant and a prosecutor entered into a plea agreement. The terms provided that the prosecutor would dismiss a pending charge of armed... 247 In a single trial, a criminal defendant was charged with four different misdemeanor offenses. Each offense carried a maximum penalty of five months... 248 On the first day of jury selection in a criminal trial, the pool of potential jurors consisted entirely of women. The city of the trial relied on t... 249 On the first day of jury selection in a criminal trial, the pool of potential jurors consisted entirely of women. The city of the trial relied on t... 250 A criminal defendant noticed that, during jury selection, the prosecutor appeared to be using peremptory challenges to strike most members of the p... 251 What is the constitutional double-jeopardy doctrine? 252 Does the Fifth Amendment protection against double jeopardy apply against the state and local governments? 253 What is the test to determine whether two criminal offenses count as the same offense under the Double Jeopardy Clause? 254 Under what circumstances may multiple punishments be imposed in one prosecution for multiple charges that arise from the same facts and constitute ... 255 What is the dual-sovereignty doctrine? 256 Does the dual-sovereignty doctrine apply if one sovereign effectively acts as the agent of another in consecutively prosecuting someone for a discr... 257 When does jeopardy attach for purposes of the Fifth Amendment's Double Jeopardy Clause? 258 Does an acquittal terminate jeopardy with respect to any offense of which the defendant was acquitted? 259 If a defendant pleads guilty to an offense, does this terminate jeopardy with respect to the offense? 260 For double-jeopardy purposes, what is reprosecution? 261 What is the doctrine of continuing jeopardy? 262 Under what circumstances may the government appeal a judgment of acquittal under the Double Jeopardy Clause? 263 A duly empaneled and sworn jury announced a verdict of acquittal in open court on some, but not all, charges presented at trial. The jury returned ... 264 A duly empaneled and sworn jury could not reach a verdict. The trial court declares a mistrial over the defendant’s objection.Does the Double Jeopa... 265 Under what circumstances will a mistrial granted at the defendant's request bar a reprosecution under the Double Jeopardy Clause? 266 Under what circumstances will a mistrial granted over the defendant's objection or without the defendant’s consent terminate jeopardy? 267 Under what circumstances will a civil-enforcement action bar a subsequent criminal prosecution by the same sovereign for the same conduct? 268 Under what circumstances will a court-ordered dismissal of criminal charges terminate jeopardy? 269 Under the Double Jeopardy Clause, what is the collateral-estoppel test? 270 An appellate court reverses a defendant's criminal conviction, on the ground that it was not supported by sufficient evidence. Under the Double Jeo... 271 A defendant was acquitted of grand larceny, defined by statute as "theft of any property worth more than $500." After trial, the jurors told the p... 272 In a trial brought by a city’s district attorney, a defendant was acquitted of bank robbery. Later, both the attorney general for the state where t... 273 At the conclusion of a murder trial, the defendant moved for judgment of acquittal. He claimed that the undisputed evidence showed that he acted in... 274 After the jury was sworn in a robbery trial, the defendant discovered that the prosecutor had failed to disclose certain exculpatory evidence. The ... 275 What is the constitutional prohibition against cruel and unusual punishments? 276 Does the constitutional prohibition against cruel and unusual punishments apply to the state and local governments? 277 What factors do courts consider in determining whether the punishment is grossly disproportionate to the crime of conviction in non-capital cases? 278 Is the death penalty categorically deemed to be cruel and unusual punishment in every instance? 279 What factors does the U.S. Supreme Court generally consider to determine whether the death penalty would constitute cruel and unusual punishment in... 280 Can the death penalty be imposed for any type of rape not involving homicide, including child rape? 281 Can the death penalty be imposed upon a mentally challenged person? 282 Can the death penalty be imposed upon a person who was under the age of 18 at the time of the offense? 283 Can the death penalty be imposed upon a person who never killed anyone, attempted to kill anyone, or intended to kill anyone? 284 For what type of crime may a person under the age of 18 be sentenced to life imprisonment without the possibility of parole? 285 What is the constitutional prohibition against excessive fines? 286 Does the constitutional prohibition against excessive fines apply to the state and local governments? 287 What standard of proof must be satisfied, with respect to every element of a criminal offense, to produce a constitutionally valid conviction? 288 Under constitutional due-process principles, which party must bear the burden of proving the elements of a crime in a criminal trial? 289 What is the difference between the burden of proof and the burden of persuasion? 290 What are the five standards of proof in constitutional criminal procedure, from least demanding to most demanding? 291 A state statute classified self-defense as an affirmative defense. It provided that in any criminal prosecution in which self-defense was an issue,... 292 During a criminal trial, the defendant presented no evidence or witnesses. The prosecution, however, called five witnesses to testify in its main c... 293 A jury deliberating in a criminal case sent a note to the judge asking how certain of guilt the jurors had to be before voting to convict. The judg... 294 Does a criminal defendant have a constitutional right to appeal a conviction? 295 A trial judge incorrectly instructed a jury in a criminal case regarding the elements of the alleged offense. As a result, the empaneled jury retur... 296 In a criminal case, a trial judge incorrectly deemed certain essential incriminating evidence inadmissible as obtained in violation of the defendan... 297 What is harmless-error review? 298 If the trial court erroneously admits an involuntary confession, is the error subject to harmless-error review? 299 If the trial court erroneously admits evidence obtained in violation of the Fourth Amendment, is the error subject to harmless-error review? 300 In a criminal case, what is a structural error? 301 Is the deprivation of the Sixth Amendment right to counsel subject to harmless-error review? 302 Is the deprivation of the right to a public trial subject to harmless-error review? 303 If the trial judge incorrectly instructs the jury on the meaning of proof beyond a reasonable doubt or the issues on which the government bears the... 304 In a criminal case, what is plain-error review? 305 A criminal defendant’s cousin, newly admitted to practice law, agreed to represent the defendant for free. The defendant faced serious felony charg... 306 A defendant was accused of murdering a rival gang member in broad daylight in front of five witnesses. One witness followed the defendant to his ho... 307 A criminal defendant was placed on trial for possessing a small amount of pot. During deliberations, the jurors sent the judge a note indicating th... Police use of a sense-enhancing device (e.g., a flashlight, heat sensor, sniffing dog, camera, or telescope) constitutes a Fourth Amendment search if: police use the device to observe intimate details of an area; the area is one in which the subject has an actual, reasonable expectation of privacy; and without the device, the police could observe the intimate details only by physical intrusion into the area. Put differently, the use of sense-enhancing devices is a search if police use the device as a substitute for physical intrusion into a constitutionally protected area, such as the home. By contrast, using sense-enhancing devices to observe an unprotected area, such as an open field, is not a search, even if done from public airspace (e.g., from a helicopter).

Question 26

In general, does the mere fact that police have trespassed upon private property mean that a Fourth Amendment search has taken place? (Q)

Answer 26

No. In general, the mere fact that police have trespassed upon private property does not mean that a Fourth Amendment search has taken place. In general, a search occurs if the government intrudes upon the subject’s actual, reasonable expectations of privacy. While not controlling, the law of trespass is useful to understand what expectations of privacy are reasonable. Also, without considering privacy expectations, the U.S. Supreme Court has held that a search took place when police trespassed on private personal property, such as an automobile, to install a device capable of tracking the property’s movements. This decision has strengthened the role of trespass in the search analysis, but its overall impact is unclear.

Question 27

Under the Fourth Amendment, what is the seizure of a person? (Q)

Answer 27

Under the Fourth Amendment, the seizure of a person is any action by which the government somehow restrains a person’s liberty by (1) intentional physical force or (2) show of force or authority. If an officer intentionally applies physical force to restrain a person’s freedom of movement, there is a seizure. If an officer merely makes a show of force or authority, there is a seizure, provided that: under all the circumstances, the officer’s conduct would convey to a reasonable person that he or she is not free to decline the officer’s request or otherwise terminate the encounter, and the person actually submits to the show of force or authority. The police may approach people in public and ask questions or make requests (e.g., requests to search belongings) without there being a seizure, if police conduct does not convey that noncompliance will produce adverse consequences.

Question 28

For Fourth Amendment purposes, what is the seizure of property? (Q)

Answer 28

For Fourth Amendment purposes, the seizure of property is action by which the government assumes possession and control over property. Fourth Amendment issues regarding seizure of property typically arise if the government confiscates evidence or contraband during a search.

Question 29

For Fourth Amendment purposes, what is an arrest? (Q)

Answer 29

For Fourth Amendment purposes, an arrest is the most significant and severe type of seizure of a person. An arrest arises if the government takes a person into formal legal custody by physical restraint, usually either for in-depth investigation (e.g., interrogation) or to book the person for a crime. More generally, an arrest means that the government has essentially taken physical possession of a person for what is to be a significant period of time. By contrast, a brief investigative detention is not an arrest.

Question 30

Under the Fourth Amendment, may an interference with a person’s liberty constitute a seizure, even if it falls short of a full-blown arrest? (Q)

Answer 30

Yes. Under the Fourth Amendment, an interference with a person’s liberty may constitute a seizure, even if it falls short of a full-blown arrest. A full-blown arrest will always constitute a Fourth Amendment seizure. However, a full-blown arrest is not necessary for there to be a seizure. Even a very brief and transitory interference with a person’s liberty could constitute a seizure.

Question 31

Police officers patrolling an urban area saw a young man walking along a sidewalk. One officer suggested that they check whether the young man had drugs on him. The officers turned on their lights and sirens, sped toward the young man, and ordered him to stop through the vehicle's speakers. The young man started to run. The officers exited the vehicle, chased the young man on foot, tackled him to the ground, and placed him in handcuffs. At what point was the young man seized, for purposes of the Fourth Amendment? (Q)

Answer 31

For purposes of the Fourth Amendment, the young man was seized when the officers tackled him. Generally, for a person to be seized under the Fourth Amendment, a government agent must engage in a show of force or authority sufficient to make a reasonable person feel that he or she is not free to leave or otherwise terminate the encounter with the agent. The seizure occurs only if the person submits to the show of authority. Also, a person is seized if a government agent intentionally uses physical force, albeit slight, to restrain the person’s movement. Here, the police sirens, speeding car, and command to stop would make a reasonable person feel not free to leave. But the young man did not submit to that show of authority; he ran. When the officers tackled the young man, though, they used physical force to restrain his movement. Thus, that is when he was seized.

Question 32

What is a warrant? (Q)

Answer 32

A warrant is a formal document, usually issued by a judge, that authorizes someone to take some action. Typically, a warrant authorizes law-enforcement agents to search or seize persons or property.

Question 33

What four general requirements must a warrant satisfy to be valid under the Fourth Amendment? (Q)

Answer 33

To be valid under the Fourth Amendment, a warrant must satisfy the following four general requirements: it must be supported by facts demonstrating probable cause that the person to be seized committed a crime or that evidence of a crime is located at the place to be searched, the supporting facts must be asserted by a person under oath or a sworn affirmation, the warrant must state with specificity the place in which it authorizes a search or the person or things it authorizes to be seized, and a detached and neutral magistrate must approve the warrant.

Question 34

Under the Fourth Amendment, what is the warrant requirement? (Q)

Answer 34

The warrant requirement is the general rule that any search or seizure implemented without a prior, valid warrant in place authorizing it is rebuttably presumed unreasonable under the Fourth Amendment. If an accused shows that there was no valid warrant, or that police exceeded the scope of a valid warrant, the burden shifts to the government to show that some exception to the warrant requirement justified the search or seizure. If the government fails, the action will be deemed unreasonable. If the government succeeds, the action will be deemed reasonable even without a warrant.

Question 35

What is probable cause? (Q)

Answer 35

Probable cause is a standard of proof in constitutional criminal procedure. Probable cause requires evidence of sufficient nature and quality to provide reasonable grounds to believe, not merely suspect, that there is a fair probability that a given proposition is true. The evidence must be viewed from the perspective of a reasonable person in the position of the police officer, considering the officer’s training, experience, and expertise. The officer must receive the benefit of all reasonable inferences from the evidence. Probable cause does not require that the proposition be more likely true than not, though it does require more than a reasonable, articulable suspicion.

Question 36

For a valid search warrant to issue, there must be probable cause to support what proposition? (Q)

Answer 36

For a valid search warrant to issue, there must be probable cause to support the proposition that evidence of a crime or contraband will be found at the place and time of the search. This typically requires showing some connection between the crime and the place of the search. Relevant factors include: the type of crime and the kinds of places or instruments needed to carry it out, the nature of the evidence or contraband, the requesting officer’s training and experience, the duration of the criminal enterprise, and the suspect’s movements (e.g., frequent commutes to or from the place of search in the same vehicle).

Question 37

For a valid arrest warrant to issue or a valid warrantless arrest to take place, there must be probable cause to support what proposition? (Q)

Answer 37

For a valid arrest warrant to issue or a valid warrantless arrest to take place, there must be probable cause to support the proposition that the person to be arrested has committed or is committing a crime. Relevant factors include: the requesting officer’s training and experience; any furtive, nervous, or suspicious conduct by the suspect; the suspect’s payment of money for contraband or illicit materials; the suspect’s unprovoked flight from the known presence of a police officer; the suspect’s presence in a known high-crime area; the suspect’s prior criminal conduct; specific behavior patterns that the officer knows, by training and experience, to indicate wrongdoing; and the suspect’s association with known criminals.

Question 38

What is an anticipatory search warrant? (Q)

Answer 38

An anticipatory search warrant is a search warrant based on probable cause to believe that evidence of a crime or contraband will be found at a particular place in the future, though not presently. A valid anticipatory search warrant requires probable cause to believe that: if a certain event, called a triggering condition, occurs, evidence or contraband will be found at the place of the search, and the triggering condition will occur, usually within a particular timeframe. Typically, an anticipatory warrant will not authorize immediate execution. Rather, police must wait for the triggering condition to occur. Once the triggering condition occurs, police may execute the search in reliance on the prior anticipatory search warrant.

Question 39

Must probable cause exist when a warrant is executed? (Q)

Answer 39

Yes. Probable cause must exist when a warrant is executed, not just when it is requested. This means that if police wait for too long after a warrant is issued to execute it, the evidence supporting probable cause may grow stale--that is, no longer be current enough to be reliable. Executing a search or arrest under a warrant for which the evidence supporting probable cause has grown stale is tantamount to executing a search or arrest under an invalid warrant.

Question 40

For purposes of the warrant requirement, who is a magistrate? (Q)

Answer 40

For purposes of the warrant requirement, a magistrate is an official who authorizes the issuance of a warrant upon finding the requisite probable cause. The magistrate is virtually always an official with some connection to the judicial branch, typically a judge. However, the Constitution does not require that the magistrate be a judge.

Question 41

What is required for a magistrate to be constitutionally qualified to issue a warrant? (Q)

Answer 41

For a magistrate to be constitutionally qualified to issue a warrant, the magistrate must possess the capacity to make the requisite probable-cause determination. Capacity refers to intellect, education, and training. Virtually anyone with professional legal credentials, such as a lawyer or judge, is qualified to make the probable-cause determination. But someone without a law degree (e.g., a municipal court clerk) may be qualified, at least with respect to minor offenses like violations of municipal ordinances.

Question 42

What does it mean to say that a magistrate is neutral and detached? (Q)

Answer 42

To say that a magistrate is neutral and detached is to say that the magistrate (1) is severed and disconnected from law-enforcement activities and (2) lacks any personal or financial stake in the issuance of the warrant and the outcome of the underlying criminal investigation. That is, the magistrate must have no affiliation with law enforcement or other interest in the issuance of the warrant that would distort his or her independent judgment. If the magistrate issuing the warrant is not neutral and detached, then the warrant is invalid.

Question 43

For purposes of the warrant requirement, what is an oath or affirmation? (Q)

Answer 43

For purposes of the warrant requirement, an oath or affirmation is a declaration made under penalty of perjury. A valid warrant requires that the magistrate find probable cause based on oath or affirmation. Thus, the officer requesting the warrant must set forth the facts supporting probable cause under penalty of perjury. This is usually done by sworn affidavit, sometimes called a probable-cause affidavit, or by sworn testimony.

Question 44

Under the Fourth Amendment, what must a person prove to invalidate a facially valid warrant as issued based on false information? (Q)

Answer 44

Under the Fourth Amendment, to invalidate a facially valid warrant as issued based on false information, a person must prove that the following conditions are met: the oath or affirmation setting forth facts supporting the warrant contained a materially false statement, the officer submitting the affidavit knew that it contained the false information or acted in reckless disregard of the truth, and the warrant would not have issued had the false information been omitted.

Question 45

In general, what facts must an oath or affirmation supporting a warrant application set forth to enable the magistrate to make the probable-cause determination? (Q)

Answer 45

In general, an oath or affirmation supporting a warrant application must set forth concrete and particular facts, upon which the magistrate could independently determine that: the evidence on which the oath or affirmation is based is sufficiently reliable to support a probable-cause determination, and this evidence establishes probable cause. Conclusory statements and the requesting officer’s inarticulate hunches are not sufficient.

Question 46

Are assertions based on the requesting officer’s personal knowledge sufficiently reliable to support a magistrate’s probable-cause determination? (Q)

Answer 46

Yes. Assertions based on the requesting officer’s personal knowledge are sufficiently reliable to support a magistrate’s probable-cause determination. Indeed, assertions based on personal knowledge are generally deemed to be the most reliable type of evidence supporting a probable-cause determination.

Question 47

If an officer relies on information obtained from an informant to support a warrant application, must the informant’s identity be disclosed to the magistrate? (Q)

Answer 47

No. If an officer relies on information obtained from an informant to support a warrant application, the informant’s identity need not be disclosed to the magistrate. Indeed, police often rely on information from confidential informants to support warrant applications. However, if the informant’s identity is not disclosed, the magistrate must carefully scrutinize the oath or affirmation to assure that the informant’s statements are sufficiently reliable to support the needed probable-cause determination.

Question 48

Under what circumstances will information obtained from a confidential informant be deemed sufficiently reliable to support a probable-cause determination? (Q)

Answer 48

7 What threshold requirement must be met for the Fourth Amendment to apply? 8 Has the Fourth Amendment been violated, simply because there was government action constituting a search or seizure? 9 What is the Fourth Amendment exclusionary rule? 10 Do the Fourth Amendment’s requirements apply to state and local governments? 11 In general, what degree of force does the Constitution permit police to use when lawfully seizing a person? 12 Under what circumstances does the Constitution permit police to use deadly force to effectuate a lawful seizure? 13 What is required for government action to constitute a search under the Fourth Amendment? 14 What is the reasonable-expectation-of-privacy test? 15 What is the trespass theory of the Fourth Amendment? 16 Under the Fourth Amendment, does a person have a reasonable expectation of privacy in what the person knowingly exposes to the public? 17 Under the Fourth Amendment, does a person have a reasonable expectation of privacy in information the person voluntarily conveys to another? 18 For purposes of the Fourth Amendment, what is the third-party doctrine? 19 Law-enforcement officers suspected a homeowner of running an illegal casino from her basement. The homeowner regularly placed her garbage at the cu... 20 Under the Fourth Amendment, does a lawfully incarcerated prisoner have a reasonable expectation of privacy in the contents of his or her prison cell? 21 Under the Fourth Amendment, in what place does a person generally enjoy the strongest reasonable expectation of privacy? 22 Does an overnight guest in a home enjoy a reasonable expectation of privacy in the home? 23 Does a guest in a home who is there for purely commercial purposes enjoy a reasonable expectation of privacy in the home? 24 For purposes of the Fourth Amendment, what is curtilage? 25 In general, is there a reasonable expectation of privacy in buildings other than the home, for Fourth Amendment purposes? 26 For purposes of the Fourth Amendment, what is an open field? 27 What is the open-fields doctrine? 28 What four factors do courts consider to distinguish between curtilage and open fields? 29 Under the Fourth Amendment, does an individual have a reasonable expectation of privacy in his or her person? 30 Under the Fourth Amendment, is there generally a reasonable expectation of privacy in an automobile and its contents? 31 Under what circumstances does police use of a sense-enhancing device constitute a Fourth Amendment search? 32 In general, does the mere fact that police have trespassed upon private property mean that a Fourth Amendment search has taken place? 33 Under the Fourth Amendment, what is the seizure of a person? 34 For Fourth Amendment purposes, what is the seizure of property? 35 For Fourth Amendment purposes, what is an arrest? 36 Under the Fourth Amendment, may an interference with a person’s liberty constitute a seizure, even if it falls short of a full-blown arrest? 37 Police officers patrolling an urban area saw a young man walking along a sidewalk. One officer suggested that they check whether the young man had ... 38 What is a warrant? 39 What four general requirements must a warrant satisfy to be valid under the Fourth Amendment? 40 Under the Fourth Amendment, what is the warrant requirement? 41 What is probable cause? 42 For a valid search warrant to issue, there must be probable cause to support what proposition? 43 For a valid arrest warrant to issue or a valid warrantless arrest to take place, there must be probable cause to support what proposition? 44 What is an anticipatory search warrant? 45 Must probable cause exist when a warrant is executed? 46 For purposes of the warrant requirement, who is a magistrate? 47 What is required for a magistrate to be constitutionally qualified to issue a warrant? 48 What does it mean to say that a magistrate is neutral and detached? 49 For purposes of the warrant requirement, what is an oath or affirmation? 50 Under the Fourth Amendment, what must a person prove to invalidate a facially valid warrant as issued based on false information? 51 In general, what facts must an oath or affirmation supporting a warrant application set forth to enable the magistrate to make the probable-cause d... 52 Are assertions based on the requesting officer’s personal knowledge sufficiently reliable to support a magistrate’s probable-cause determination? 53 If an officer relies on information obtained from an informant to support a warrant application, must the informant’s identity be disclosed to the ... 54 Under what circumstances will information obtained from a confidential informant be deemed sufficiently reliable to support a probable-cause determ... 55 What factors do courts consider to determine whether evidence supporting probable cause is sufficiently current to be reliable? 56 What is the particularity requirement for warrants? 57 What is required for a search warrant to describe the place to be searched with sufficient particularity? 58 For the particularity requirement for warrants to be satisfied, must the requisite particularity appear on the face of the warrant? 59 What is required for a warrant to describe the persons to be seized with sufficient particularity? 60 What is required for a warrant to describe the things or property to be seized with sufficient particularity? 61 Within what timeframe after a valid warrant has issued must police execute the warrant? 62 What is the general permissible scope of a search or seizure pursuant to a valid warrant? 63 If police are executing a valid warrant, under what circumstances may they detain individuals not named in the warrant? 64 May police restrict entry into private premises while awaiting a warrant authorizing a search of the premises? 65 What is the knock-and-announce rule? 66 Under what circumstances does the knock-and-announce rule not apply? 67 Is the suppression of evidence a remedy for police violations of the knock-and-announce rule? 68 What is the plain-view doctrine? 69 Under what circumstances may police lawfully arrest an individual in a public place without a warrant? 70 Under what circumstances may police lawfully cross the threshold into an arrestee’s home to effectuate the arrest? 71 If police have a valid arrest warrant for a particular arrestee, do they need separate justification to enter the arrestee’s home and search for th... 72 If police have a valid arrest warrant for a particular arrestee, does that alone justify entering the home of a third party who does not live with ... 73 If police have probable cause to effectuate a lawful, warrantless arrest, do their subjective motivations for the arrest matter? 74 If police lawfully arrest an individual without a warrant, at what point must they release the individual from custody? 75 In general, what is the search-incident-to-arrest doctrine? 76 May police seize items they find during a search incident to a lawful arrest? 77 At what point in time must a search incident to a lawful arrest take place, relative to the arrest itself? 78 If an officer has lawful grounds to arrest an individual but never actually arrests the individual, may the officer conduct a search incident to ar... 79 For there to be a lawful search incident to a warrantless arrest, at what point in time must there be probable cause justifying the arrest? 80 What is reasonable suspicion? 81 If a lawful arrest takes place inside a home or other structure, what is the permissible search area of a search incident to the arrest? 82 If police lawfully arrest someone who occupies or recently occupied a nearby automobile, what is the permissible search area of a search incident t... 83 Can a person’s presence in a high-crime area, standing alone, establish either reasonable suspicion or probable cause that the person has committed... 84 Can a person’s history of criminal activity, standing alone, establish either reasonable suspicion or probable cause that the person has committed ... 85 For purposes of the Fourth Amendment, what is the good-faith exception? 86 Does the good-faith exception apply to the execution of warrants? 87 A detective learned that drugs were being smuggled from one specific warehouse at a shipyard with seven warehouses. The detective submitted a warra... 88 What is a Terry stop? 89 Without a warrant or probable cause, may law-enforcement officers lawfully search a suspect by using their hands to pat down the outside of a suspe... 90 For purposes of the Fourth Amendment, what is the distinction between an investigatory stop and an arrest? 91 During a lawful Terry stop, may a police officer demand to see identification? 92 During a lawful Terry stop, may a police officer ask the subject questions? 93 In general, what is the permissible duration of a lawful Terry stop? 94 In general, what is the permissible scope of investigative activity during a lawful Terry stop? 95 May an officer conducting a lawful Terry stop arrest the subject, if the subject refuses to comply with the officer’s demands? 96 Under what circumstances may an officer conducting a lawful Terry stop detain and investigate personal property? 97 Without probable cause or a warrant, under what circumstances may police stop a vehicle, detain its occupants, or search the vehicle or its occupants? 98 What is the plain-feel doctrine? 99 A civilian flagged down an officer on patrol, pointed to a man across the street, and stated that the man had just robbed her at gunpoint. The offi... 100 What is the exigent-circumstances exception to the warrant requirement? 101 Can the exigent-circumstances exception apply if police themselves create the exigency giving rise to the exception? 102 What is the hot-pursuit doctrine? 103 Do some courts apply the hot-pursuit doctrine if the person being pursued committed a misdemeanor? 104 In general, what are the permissible scope and duration of police activity under the exigent-circumstances exception to the warrant requirement? 105 Under what circumstances may police enter private premises to seek and subdue a dangerous criminal without a warrant? 106 What is the emergency-aid exception to the warrant requirement? 107 Police officers suspected that drug dealers were distributing drugs from a house. Without a warrant, the officers went to the house and began pound... 108 What is the automobile exception to the warrant requirement? 109 Is the automobile exception to the warrant requirement the only constitutional rule permitting police to search or detain an automobile without a w... 110 Can an individual’s consent legitimize police conduct that would otherwise violate the Fourth Amendment? 111 For consent to be valid under the Fourth Amendment, must the consent be knowing, intelligent, and voluntary? 112 Under what circumstances is consent voluntary under the Fourth Amendment? 113 For consent to be voluntary under the Fourth Amendment, must police inform the subject that he or she may refuse to consent? 114 Is a person’s consent involuntary for Fourth Amendment purposes, simply because the person is subject to a seizure or in police custody when giving... 115 Are the subject’s mental and other characteristics a factor courts consider when evaluating whether consent to police conduct is voluntary for Four... 116 Who can give valid consent for police to search a home or other private property? 117 Without independent justification, under what circumstances may police search a home or other private property over the express objection of someon... 118 May probationers and parolees be required to submit to suspicionless, warrantless searches of their homes and effects as a condition of early release? 119 Under what circumstances may a government administrative agency responsible to supervise a certain industry conduct a warrantless search of commerc... 120 In the context of administrative inspections of commercial premises, what is required for the regulatory scheme to provide a constitutionally adequ... 121 What are the requirements for a valid warrant authorizing an administrative inspection of commercial premises? 122 Does the Fourth Amendment exclusionary rule apply to evidence of a crime that happens to turn up during a lawful administrative inspection? 123 What is an inventory search? 124 May police conduct an inventory search without a warrant? 125 If police discover contraband or evidence of a crime during a valid warrantless inventory search, may they seize that evidence under the plain-view... 126 In general, what are the special-needs exceptions to the warrant requirement? 127 May police strip search a lawfully detained individual without a warrant? 128 Without a warrant or individualized suspicion, may police set up sobriety checkpoints at fixed locations on public roadways? 129 Without a warrant or individualized suspicion, may police on roving patrols stop motorists at their own discretion to check for sobriety? 130 Without a warrant or individualized suspicion, may police set up fixed checkpoints on the public roads to check passing motorists for possession of... 131 Without a warrant or individualized suspicion, may police set up fixed checkpoints at which all motorists are briefly stopped and asked questions c... 132 Without a warrant or individualized suspicion, may immigration officials set up fixed checkpoints at or near the border to briefly stop vehicles an... 133 What, at minimum, is required for immigration officials on roving border patrol to stop a vehicle to question occupants about immigration status an... 134 Under what circumstances may immigration officials search an automobile at or near the border without a warrant? 135 Under what circumstances may a public-school official search a student and his or her belongings without the student’s consent? 136 Without a warrant or individualized suspicion, may public-school officials subject students participating in extracurricular activities to random u... 137 Does the Fourth Amendment apply if the government seeks to subject its employees to a search or seizure? 138 In the context of the Fourth Amendment exclusionary rule, what is the doctrine of standing? 139 What is the impeachment exception to the Fourth Amendment exclusionary rule? 140 What does it mean to say that police obtained evidence as an indirect result of a constitutional violation? 141 What is the derivative-evidence doctrine? 142 Does the derivative-evidence doctrine apply to incriminating statements obtained as an indirect result of a Fourth Amendment violation? 143 May live witness testimony be excluded under the derivative-evidence doctrine? 144 In what proceedings does the Fourth Amendment exclusionary rule apply? 145 What is the independent-source rule? 146 What is the inevitable-discovery doctrine? 147 A defendant was unlawfully arrested in violation of the Fourth Amendment. Immediately after the arrest, police forced the defendant to participate ... 148 Does the Fifth Amendment privilege against compulsory self-incrimination apply against state and local governments? 149 What four Miranda warnings must precede a custodial interrogation by police? 150 What does Miranda require for any statement by a suspect in response to custodial interrogation to be admissible in the prosecution’s case-in-chief... 151 To what must the government subject an individual for the requirements of the Miranda doctrine to apply? 152 What is interrogation, for purposes of the Miranda doctrine? 153 What is custody, for purposes of the Miranda doctrine? 154 May the prosecution use a statement obtained in violation of a defendant’s Miranda rights to impeach the defendant's testimony at trial? 155 If a person subjected to custodial interrogation has invoked the Miranda right to remain silent, what must the officers conducting the interrogatio... 156 If a person subjected to custodial interrogation invokes the Miranda right to counsel, may the interrogation continue? 157 If a person subject to custodial interrogation invokes the Miranda right to counsel, may the person later waive the right without the assistance of... 158 A police officer took a burglary suspect into custody and brought him to the stationhouse for interrogation. The suspect, after being advised of hi... 159 Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect in... 160 A detective took a burglary suspect into custody, brought him to the stationhouse for interrogation, and advised him of his Miranda rights. The sus... 161 Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect in... 162 Does the Miranda exclusionary rule apply to physical evidence? 163 What is the public-safety exception to the Miranda rule? 164 What is a Miranda two-step scenario? 165 In a Miranda-two-step scenario, what four factors make it less likely that Miranda’s exclusionary rule will apply to the second statement? 166 In a Miranda-two-step scenario, what five factors make it more likely that Miranda’s exclusionary rule will apply to the second statement? 167 For due-process purposes, what is a coerced statement? 168 If police coerce a suspect into making a self-incriminating statement, is the statement admissible against the suspect at a criminal trial as subst... 169 If police coerce a suspect into making a self-incriminating statement, is the statement admissible at a criminal trial against the suspect to impea... 170 If police coerce an incriminating statement from a suspect, are any physical fruits of the statement admissible at a criminal trial against the sus... 171 If police coerce an incriminating statement from a suspect out of a need to avert an imminent threat to public safety, is the statement admissible ... 172 For purposes of determining whether police coerced a suspect to make a statement, what is coercive conduct? 173 Is a suspect’s statement necessarily coerced or involuntary, just because police lied or made false promises to induce the statement? 174 What three factors do courts generally consider in determining whether coercive police conduct actually overbore a suspect’s will and caused the su... 175 Police officers patrolling a public park saw a man place a duffle bag inside a garbage can and then walk away. The officers examined the bag and so... 176 Does the Fifth Amendment privilege against compulsory self-incrimination apply only at criminal trials? 177 Does the Fifth Amendment privilege against compulsory self-incrimination afford a criminal defendant a right to refuse to testify at all at trial? 178 If a criminal defendant elects not to testify at trial, may the prosecutor comment to the factfinder about that decision? 179 To impeach a criminal defendant’s testimony, may the prosecutor comment to the factfinder about the defendant’s decision not to testify in an earli... 180 Does the privilege against compulsory self-incrimination afford a witness who is not a criminal defendant the right to refuse to testify at all? 181 If a witness testifies as to a particular fact or belief, may the witness invoke the privilege against compulsory self-incrimination to avoid provi... 182 What three requirements must a communication meet for the privilege against compulsory self-incrimination to apply to it? 183 Under what circumstances is a communication generally compelled? 184 Under what circumstances is a communication generally incriminating, for purposes of the privilege against compulsory self-incrimination? 185 What is use-and-derivative-use immunity? 186 For purposes of the privilege against compulsory self-incrimination, what is testimonial evidence? 187 In general, does the privilege against compulsory self-incrimination apply to written documents that the witness created of his or her own volition? 188 If a criminal defendant elects to testify at trial, may the defendant assert the privilege against compulsory self-incrimination on the witness stand? 189 The police forced a suspect to stand in a lineup and utter words that the perpetrator of a crime allegedly said while committing the offense. Does... 190 As part of a criminal investigation, the police forced a suspect to produce a writing sample so that they could compare the suspect’s writing to th... 191 Can an out-of-court identification of a criminal defendant be suppressed as unduly suggestive under the Due Process Clause if the identification wa... 192 Could evidence of a pretrial identification procedure by law enforcement be admissible even if the procedure producing it was unnecessarily suggest... 193 If law-enforcement officers employ an unnecessarily suggestive identification process, what principal factors will a court consider when determinin... 194 In general, if a witness’s pretrial identification of a defendant as the perpetrator is inadmissible on due-process grounds, may the witness identi... 195 Could evidence of a pretrial identification procedure by law enforcement be admissible even if it is so suggestive as to undermine the reliability ... 196 Is a one-person show-up procedure categorically an unconstitutionally suggestive procedure under the Due Process Clause? 197 Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ... 198 Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ... 199 Just after an armed robbery, the victim approached a police officer and described the robber as a young man wearing a t-shirt and jeans. Shortly af... 200 The victim of a robbery chased the perpetrator but lost sight of him. The victim entered a subway station. Inside, she saw two police officers ques... 201 While investigating a robbery, a detective had a hunch that the perpetrator was a suspect whom he had encountered while investigating unrelated cri... 202 A kidnapper held a victim captive in his basement. Each morning and evening, the kidnapper would enter the basement to bring the victim food and sp... 203 Does the Sixth Amendment right to counsel apply against state and local governments? 204 At what point in time does the Sixth Amendment right to counsel attach? 205 In general, what are the critical stages of a criminal prosecution, for purposes of the Sixth Amendment right to counsel? 206 Does the Sixth Amendment right to counsel imply an exclusionary remedy? 207 Once the Sixth Amendment right to counsel has attached with respect to an offense, under what circumstances may police actively and deliberately se... 208 Is the Sixth Amendment right to counsel the same as the Miranda right to counsel? 209 Under the Sixth Amendment, are all criminal defendants entitled to receive an appointed attorney at government expense? 210 Is an indigent criminal defendant entitled to appointed defense counsel at government expense in every criminal case? 211 Under what circumstances may a court refer to a prior criminal conviction in enhancing a defendant’s current sentence? 212 Under what circumstances does the Sixth Amendment guarantee a criminal defendant the right to be represented by an attorney of the defendant's choo... 213 Does a criminal defendant have a constitutional right to self-representation? 214 Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel on the first round of appeal from a criminal con... 215 Does the U.S. Constitution guarantee an indigent criminal defendant the right to appointed counsel in post-conviction collateral-review proceedings? 216 If the constitutional right to counsel applies, does it guarantee criminal defendants the right to receive the effective assistance of counsel? 217 Under what circumstances does the Due Process Clause guarantee an indigent criminal defendant a right to appointed counsel in a parole or probation... 218 A criminal defendant was not a citizen of the United States. The defendant was indicted for a crime. The defendant has considered pleading guilty t... 219 A criminal suspect was arrested for robbery. Soon after, the state’s criminal trial court conducted a preliminary hearing to determine whether ther... 220 A defendant was formally charged with a crime. Law-enforcement officers sent an undercover informant to try to elicit incriminating information fro... 221 A defendant was arrested for and formally charged with a crime; he remained in jail pending trial. Law-enforcement officers sent an undercover agen... 222 A defendant was arrested and charged with robbery; he remained in jail pending trial. Police also suspected the defendant of unrelated drug crimes.... 223 A defendant was charged with armed robbery, carrying a minimum sentence of 10 years. The prosecutor offered the defendant a chance to plead guilty ... 224 Police suspected a man and his friend of robbing a store. Based on surveillance video, police identified the man and arrested him. The man was char... 225 A protest turned violent; the organizer was arrested and charged with inciting a riot. The organizer reached out to a free-speech attorney for assi... 226 A criminal defendant was accused of drunk driving, a misdemeanor carrying a maximum penalty of either five months in jail or a fine of $2,000. When... 227 A criminal suspect was participating in a lineup identification conducted after his indictment. Is the suspect entitled to the presence of an attor... 228 A criminal suspect was participating in a lineup identification conducted immediately after his arrest. No formal charges had been filed against th... 229 Shortly after an alleged bank robbery, police arrested a suspect near the scene, took him to the police station, and made him stand in a lineup. Be... 230 Does the U.S. Constitution afford a criminal defendant a right to plead guilty? 231 What is a plea bargain? 232 What requirements must a guilty plea in a criminal case meet to be constitutionally valid? 233 What is required for a guilty plea to be knowing and intelligent? 234 Under the U.S. Constitution, may a prosecutor threaten a criminal defendant with more severe charges if the defendant refuses to plead guilty? 235 If the prosecution violates a plea agreement under which a defendant has pleaded guilty, what remedies are available to the defendant? 236 What is required for a guilty plea to become effective and bind the defendant? 237 Does the U.S. Constitution afford criminal defendants a right to a trial by jury in every criminal case? 238 Does the U.S. Constitution require that a jury in a criminal case have 12 members? 239 In a federal criminal case in which the Sixth Amendment affords the defendant a right to a jury trial, must the jury render a unanimous verdict to ... 240 Does the U.S. Constitution require that a jury in a state-court criminal trial render a unanimous verdict to convict the defendant? 241 In the context of jury selection, what is the fair-cross-section requirement? 242 If the defendant establishes that the pool of potential jurors did not represent a fair cross-section of the community, does this entitle the defen... 243 In jury selection, what is a peremptory challenge? 244 What limitations does the U.S. Constitution impose on the use of peremptory challenges in a criminal case? 245 Does the U.S. Constitution impose any restriction on a criminal defendant’s ability to exercise peremptory challenges in the course of jury selection? 246 A criminal defendant and a prosecutor entered into a plea agreement. The terms provided that the prosecutor would dismiss a pending charge of armed... 247 In a single trial, a criminal defendant was charged with four different misdemeanor offenses. Each offense carried a maximum penalty of five months... 248 On the first day of jury selection in a criminal trial, the pool of potential jurors consisted entirely of women. The city of the trial relied on t... 249 On the first day of jury selection in a criminal trial, the pool of potential jurors consisted entirely of women. The city of the trial relied on t... 250 A criminal defendant noticed that, during jury selection, the prosecutor appeared to be using peremptory challenges to strike most members of the p... 251 What is the constitutional double-jeopardy doctrine? 252 Does the Fifth Amendment protection against double jeopardy apply against the state and local governments? 253 What is the test to determine whether two criminal offenses count as the same offense under the Double Jeopardy Clause? 254 Under what circumstances may multiple punishments be imposed in one prosecution for multiple charges that arise from the same facts and constitute ... 255 What is the dual-sovereignty doctrine? 256 Does the dual-sovereignty doctrine apply if one sovereign effectively acts as the agent of another in consecutively prosecuting someone for a discr... 257 When does jeopardy attach for purposes of the Fifth Amendment's Double Jeopardy Clause? 258 Does an acquittal terminate jeopardy with respect to any offense of which the defendant was acquitted? 259 If a defendant pleads guilty to an offense, does this terminate jeopardy with respect to the offense? 260 For double-jeopardy purposes, what is reprosecution? 261 What is the doctrine of continuing jeopardy? 262 Under what circumstances may the government appeal a judgment of acquittal under the Double Jeopardy Clause? 263 A duly empaneled and sworn jury announced a verdict of acquittal in open court on some, but not all, charges presented at trial. The jury returned ... 264 A duly empaneled and sworn jury could not reach a verdict. The trial court declares a mistrial over the defendant’s objection.Does the Double Jeopa... 265 Under what circumstances will a mistrial granted at the defendant's request bar a reprosecution under the Double Jeopardy Clause? 266 Under what circumstances will a mistrial granted over the defendant's objection or without the defendant’s consent terminate jeopardy? 267 Under what circumstances will a civil-enforcement action bar a subsequent criminal prosecution by the same sovereign for the same conduct? 268 Under what circumstances will a court-ordered dismissal of criminal charges terminate jeopardy? 269 Under the Double Jeopardy Clause, what is the collateral-estoppel test? 270 An appellate court reverses a defendant's criminal conviction, on the ground that it was not supported by sufficient evidence. Under the Double Jeo... 271 A defendant was acquitted of grand larceny, defined by statute as "theft of any property worth more than $500." After trial, the jurors told the p... 272 In a trial brought by a city’s district attorney, a defendant was acquitted of bank robbery. Later, both the attorney general for the state where t... 273 At the conclusion of a murder trial, the defendant moved for judgment of acquittal. He claimed that the undisputed evidence showed that he acted in... 274 After the jury was sworn in a robbery trial, the defendant discovered that the prosecutor had failed to disclose certain exculpatory evidence. The ... 275 What is the constitutional prohibition against cruel and unusual punishments? 276 Does the constitutional prohibition against cruel and unusual punishments apply to the state and local governments? 277 What factors do courts consider in determining whether the punishment is grossly disproportionate to the crime of conviction in non-capital cases? 278 Is the death penalty categorically deemed to be cruel and unusual punishment in every instance? 279 What factors does the U.S. Supreme Court generally consider to determine whether the death penalty would constitute cruel and unusual punishment in... 280 Can the death penalty be imposed for any type of rape not involving homicide, including child rape? 281 Can the death penalty be imposed upon a mentally challenged person? 282 Can the death penalty be imposed upon a person who was under the age of 18 at the time of the offense? 283 Can the death penalty be imposed upon a person who never killed anyone, attempted to kill anyone, or intended to kill anyone? 284 For what type of crime may a person under the age of 18 be sentenced to life imprisonment without the possibility of parole? 285 What is the constitutional prohibition against excessive fines? 286 Does the constitutional prohibition against excessive fines apply to the state and local governments? 287 What standard of proof must be satisfied, with respect to every element of a criminal offense, to produce a constitutionally valid conviction? 288 Under constitutional due-process principles, which party must bear the burden of proving the elements of a crime in a criminal trial? 289 What is the difference between the burden of proof and the burden of persuasion? 290 What are the five standards of proof in constitutional criminal procedure, from least demanding to most demanding? 291 A state statute classified self-defense as an affirmative defense. It provided that in any criminal prosecution in which self-defense was an issue,... 292 During a criminal trial, the defendant presented no evidence or witnesses. The prosecution, however, called five witnesses to testify in its main c... 293 A jury deliberating in a criminal case sent a note to the judge asking how certain of guilt the jurors had to be before voting to convict. The judg... 294 Does a criminal defendant have a constitutional right to appeal a conviction? 295 A trial judge incorrectly instructed a jury in a criminal case regarding the elements of the alleged offense. As a result, the empaneled jury retur... 296 In a criminal case, a trial judge incorrectly deemed certain essential incriminating evidence inadmissible as obtained in violation of the defendan... 297 What is harmless-error review? 298 If the trial court erroneously admits an involuntary confession, is the error subject to harmless-error review? 299 If the trial court erroneously admits evidence obtained in violation of the Fourth Amendment, is the error subject to harmless-error review? 300 In a criminal case, what is a structural error? 301 Is the deprivation of the Sixth Amendment right to counsel subject to harmless-error review? 302 Is the deprivation of the right to a public trial subject to harmless-error review? 303 If the trial judge incorrectly instructs the jury on the meaning of proof beyond a reasonable doubt or the issues on which the government bears the... 304 In a criminal case, what is plain-error review? 305 A criminal defendant’s cousin, newly admitted to practice law, agreed to represent the defendant for free. The defendant faced serious felony charg... 306 A defendant was accused of murdering a rival gang member in broad daylight in front of five witnesses. One witness followed the defendant to his ho... 307 A criminal defendant was placed on trial for possessing a small amount of pot. During deliberations, the jurors sent the judge a note indicating th... Information obtained from a confidential informant will be deemed sufficiently reliable to support a probable-cause determination if it has enough independent corroboration. Deciding this issue, courts balance three factors: the basis for the informant’s knowledge, if known to the officer; whether the particular informant is generally credible or truthful; and whether independent evidence shows that the informant’s particular statements are likely true. In general, courts are more likely to find reliability if the informant has a history of providing accurate information and predictions, the police are able to verify a significant portion of the informant’s particular claims by independent lawful investigation, or the informant’s tip would expose him or her to criminal liability if true.

Question 49

What factors do courts consider to determine whether evidence supporting probable cause is sufficiently current to be reliable? (Q)

Answer 49

Courts consider these factors to determine whether evidence supporting probable cause is sufficiently current to be reliable: the character of the crime, particularly whether it is a quick transaction or an ongoing enterprise; the suspect’s mobility, or whether the suspect tends to move about often or to stay in one area; and the mobility and perishability (or destructibility) of the evidence. Evidence is deemed stale if it is not current enough to be reliable. If the crime is a quick transaction, the suspect is highly mobile, and the evidence is mobile or destructible, then the evidence supporting probable cause is more likely to go stale quickly. Conversely, if the crime is an ongoing enterprise, the suspect tends to stay in one area, and the evidence has a permanent or enduring character, then the evidence is less likely to go stale quickly.

Question 50

What is the particularity requirement for warrants? (Q)

Answer 50

The particularity requirement for warrants is the rule that, to be valid, a warrant must describe the specific location to be searched or the specific persons or property to be seized, as the case may be. The upshot of this requirement is that the police may search only those places and seize only those things or people identified in the warrant, unless an exception to the warrant requirement applies. The purpose of the particularity requirement is to prohibit general warrants vesting police with unfettered discretion to rummage through a suspect’s belongings hoping to find some evidence of a crime.

Question 51

What is required for a search warrant to describe the place to be searched with sufficient particularity? (Q)

Answer 51

For a warrant to describe the place to be searched with sufficient particularity, the officer relying on the warrant must be able to ascertain and identify the specific location where the search is authorized with reasonable certainty. The description must be such that the officer (1) has no discretion to decide where to search and (2) need not speculate as to where the search is authorized. The warrant is invalid if it is so facially non-particular or incorrect that no reasonable officer could rely on it. Minor typographical errors are acceptable, though, provided the officer can tell, under the circumstances, where he or she is to go.

Question 52

For the particularity requirement for warrants to be satisfied, must the requisite particularity appear on the face of the warrant? (Q)

Answer 52

Yes. For the particularity requirement for warrants to be satisfied, the requisite particularity must appear on the face of the warrant. For this purpose, the face of the warrant includes any supporting documents attached to the warrant and made part of it, but both the warrant and the supporting documents must be available for the subject to inspect when the warrant is executed. If the warrant itself is not particular enough, and the supporting documents that would supply particularity are not available, then the warrant is effectively invalid.

Question 53

What is required for a warrant to describe the persons to be seized with sufficient particularity? (Q)

Answer 53

For a warrant to describe the persons to be seized with sufficient particularity, it must be worded so that the officer executing it has no discretion to decide whom to seize and can reasonably identify whom to seize. Ideally, the warrant should mention the persons by full legal name. If the description is so facially non-particular that no reasonable officer could rely on it, or if the executing officer knows the warrant describes the wrong person, then the warrant is invalid.

Question 54

Within what timeframe after a valid warrant has issued must police execute the warrant? (Q)

Answer 54

Police must execute a valid warrant within a reasonable time after the warrant has issued. Generally, this depends on whether the information supporting the magistrate’s probable-cause determination is current enough to be reliable when the warrant is executed. If so, then the execution is done within a reasonable time. If not, then the execution is not done within a reasonable time, and the warrant is invalid as based on stale evidence.

Question 55

What is the general permissible scope of a search or seizure pursuant to a valid warrant? (Q)

Answer 55

The general permissible scope of a search or seizure pursuant to a valid warrant is limited to the places, persons, or things described in the warrant. That is, unless an exception to the warrant requirement applies, police: may search only those places and seize only those persons or things described in the warrant, may search only in containers and other places where any items or persons described in the warrant may logically be found, and may not search the person of anyone not named in the warrant.

Question 56

If police are executing a valid warrant, under what circumstances may they detain individuals not named in the warrant? (Q)

Answer 56

If police are executing a valid warrant permitting them to search a home or other premises for contraband or evidence, they may detain occupants of the premises not named in the warrant as they reasonably deem necessary to (1) accomplish the search or (2) prevent someone from fleeing, should incriminating evidence be discovered. The police may not search a detainee not named in the warrant, unless an exception to the warrant requirement applies.

Question 57

May police restrict entry into private premises while awaiting a warrant authorizing a search of the premises? (Q)

Answer 57

Yes. Police may restrict entry into private premises while awaiting a warrant authorizing a search of the premises. However, they may do this only if: they have probable cause to believe that the premises contain evidence of a crime, and they reasonably believe that evidence will be destroyed if the occupants are allowed to reenter the premises before a warrant could issue. If these conditions are satisfied, police may restrict the occupants from entering the premises only for a period of time reasonably necessary to obtain a warrant.

Question 58

What is the knock-and-announce rule? (Q)

Answer 58

The knock-and-announce rule is the constitutional criminal-procedure rule governing police entry into a home to execute a warrant. In most cases, if the police have reason to believe that the home is occupied, then before entering the home, the police must: knock; identify themselves and their purpose; and give the occupant a reasonable time to open the door voluntarily, before the police force entry into the home (e.g., by breaking down the door). How much time is reasonable depends on how long police reasonably believe, under the circumstances, that they can wait before evidence or contraband will be destroyed, a felon will escape, or someone will come to harm. Generally, a very short time is reasonable if the warrant mentions drugs or other items that can be disposed of quickly.

Question 59

Under what circumstances does the knock-and-announce rule not apply? (Q)

Answer 59

The knock-and-announce rule does not apply if police reasonably suspect that knocking and announcing their presence before entering an occupied home to execute a search warrant would be dangerous or futile or would inhibit them from effectively investigating the crime. This is usually the case if: knocking and announcing would endanger the police, police are pursuing someone dangerous (e.g., a violent felon), or the risk that evidence or contraband will be destroyed is so great that police cannot afford to give even a small lead time before forcibly entering the home.

Question 60

Is the suppression of evidence a remedy for police violations of the knock-and-announce rule? (Q)

Answer 60

No. The suppression of evidence is not a remedy for police violations of the knock-and-announce rule. A violation of the knock-and-announce rule is, in turn, a violation of the Fourth Amendment’s prohibition against unreasonable searches. In general, evidence obtained due to a Fourth Amendment violation is inadmissible at a criminal trial against the person whose rights were violated. However, the exclusionary remedy is simply not available for breaches of the knock-and-announce rule. Accordingly, the subject must resort to other remedies, such as a civil suit for damages.

Question 61

What is the plain-view doctrine? (Q)

Answer 61

The plain-view doctrine is an exception to the warrant requirement that permits police to seize (not search) property, usually tangible, movable property, without a warrant. For the doctrine to apply, police must be in a position both to see and obtain the item without violating the Constitution (e.g., during the course of a lawful search). In addition, it must be immediately apparent that there is probable cause to believe the item is contraband or evidence of a crime, without the need for further testing, touching, manipulation, or examination of any kind. If police have to do anything except look at the item to ascertain its incriminating character (as by opening an opaque container), they may not seize it under the plain-view doctrine. If these requirements are met, it does not matter whether police expected to come across the item or did so only inadvertently.

Question 62

Under what circumstances may police lawfully arrest an individual in a public place without a warrant? (Q)

Answer 62

Police may lawfully arrest an individual in a public place without a warrant if there is probable cause to believe that the individual has committed: a felony at any time or place or any crime, no matter how minor, in the officer’s presence, including petty offenses like traffic violations. These rules apply only to arrests in public places. For purposes of these rules, public places include any areas just outside a home, such as a doorway, front porch, or other curtilage. However, different rules apply if an officer crosses the threshold into an individual’s home to effectuate an arrest.

Question 63

Under what circumstances may police lawfully cross the threshold into an arrestee’s home to effectuate the arrest? (Q)

Answer 63

Police may lawfully cross the threshold into an arrestee’s home to effectuate the arrest only if: there is a valid arrest warrant for the particular arrestee, and the police reasonably believe the arrestee is in the home at the time of the search, or some specific exception to the warrant requirement would authorize entry into the home, not including probable cause for a warrantless arrest in a public place. Different rules apply if police enter the home of a third party who does not live with the arrestee to effectuate the arrest.

Question 64

If police have a valid arrest warrant for a particular arrestee, do they need separate justification to enter the arrestee’s home and search for the arrestee? (Q)

Answer 64

No. If police have a valid arrest warrant for a particular arrestee, they need no further justification, such as a separate search warrant, to enter the arrestee’s home and search anywhere the arrestee might logically be found. The arrest warrant implicitly authorizes a search of the arrestee’s home. However, the police must reasonably believe that the arrestee is in the home at the time of the search. Without further justification, the search must end once the arrestee is found and secured. These rules apply regardless whether third parties also live in the home with the arrestee.

Question 65

If police have a valid arrest warrant for a particular arrestee, does that alone justify entering the home of a third party who does not live with the arrestee to effectuate the arrest? (Q)

Answer 65

No. If police have a valid arrest warrant for a particular arrestee, that alone does not justify entering the home of a third party who does not live with the arrestee to effectuate the arrest. To enter the home of a third party who does not live with the arrestee, police need either: a separate search warrant authorizing entry into the third party’s home, based on probable cause to believe that the arrestee will be in the home at the time of the search, or an exception to the warrant requirement justifying entry into the home, not including probable cause to effectuate a warrantless arrest in a public place.

Question 66

If police have probable cause to effectuate a lawful, warrantless arrest, do their subjective motivations for the arrest matter? (Q)

Answer 66

No. As long as police have probable cause to effectuate a lawful, warrantless arrest, their subjective motivations for the arrest do not matter. This is most often an issue if police have some ulterior motive for the arrest, such as using the arrest as a pretext to investigate a more serious crime than the crime of arrest. But provided police comply with the Constitution at every step, their internal motives are irrelevant.

Question 67

If police lawfully arrest an individual without a warrant, at what point must they release the individual from custody?

Answer 67

If police lawfully arrest an individual without a warrant, they must release the individual from custody if there is not a prompt judicial determination that the police had probable cause to justify the arrest. If the judicial determination takes place within 48 hours or less, it is presumed prompt. To show lack of promptness, the arrestee must prove that the police delayed the determination with bad motive--e.g., buying time to gather evidence. If the determination takes longer than 48 hours to occur, it is prompt only if the government can show that some emergency or extraordinary circumstance apart from the usual administrative burdens of police work justified the delay.

Question 68

In general, what is the search-incident-to-arrest doctrine? (Q)

Answer 68

In general, the search-incident-to-arrest doctrine holds that if law-enforcement officers have lawful grounds to arrest an individual, they may also conduct a warrantless search of the individual's person and any area within his or her immediate control. The permissible search area is limited to space to which the arrestee has access at the time of the arrest, though officers may generally conduct the search even if the arrestee is secured. Officers may search inside containers within the permissible search area, even if one could not logically contain weapons or evidence.

Question 69

May police seize items they find during a search incident to a lawful arrest? (Q)

Answer 69

Yes. Police may seize items they find during a search incident to a lawful arrest. The only restriction is that police must reasonably believe the item to be a weapon or evidence of a crime.

Question 70

At what point in time must a search incident to a lawful arrest take place, relative to the arrest itself? (Q)

Answer 70

A search incident to a lawful arrest must take place contemporaneously with the arrest itself. In general, this means the search must take place either just before or just after the formal arrest.

Question 71

If an officer has lawful grounds to arrest an individual but never actually arrests the individual, may the officer conduct a search incident to arrest? (Q)

Answer 71

No. Even if an officer has lawful grounds to arrest an individual, the officer must actually arrest the individual to conduct a search incident to arrest. If there is no arrest, there can be no search incident to an arrest.

Question 72

For there to be a lawful search incident to a warrantless arrest, at what point in time must there be probable cause justifying the arrest? (Q)

Answer 72

For there to be a lawful search incident to a warrantless arrest, probable cause justifying the arrest must exist before the search occurs. Thus, if police initially lack probable cause, they may not illegally search a person and then arrest him or her once the search turns up evidence creating probable cause.

Question 73

What is reasonable suspicion? (Q)

Answer 73

Reasonable suspicion is a standard of proof in constitutional criminal procedure. This standard is satisfied if police can point to specific, articulable facts that would justify a reasonable person in suspecting, if not necessarily believing, that a certain proposition is true. A mere inarticulate hunch cannot satisfy reasonable suspicion, though the standard is less demanding than probable cause.

Question 74

If a lawful arrest takes place inside a home or other structure, what is the permissible search area of a search incident to the arrest? (Q)

Answer 74

If a lawful arrest takes place inside a home or other structure, the permissible search area of a search incident to the arrest includes: the arrestee’s person; the area within the arrestee’s immediate control; and spaces immediately adjacent to the place of arrest, such as closets, from which someone in hiding might logically attack the officers. In addition, the search may expand to other areas in the structure, if the police have reasonable suspicion that those areas harbor persons posing a danger to the police or others. In this case, the search is limited to a protective sweep; a quick visual inspection of places in which a person could hide. The sweep must last no longer than needed to dispel the suspicion, complete the arrest, and leave the premises.

Question 75

If police lawfully arrest someone who occupies or recently occupied a nearby automobile, what is the permissible search area of a search incident to the arrest? (Q)

Answer 75

If police lawfully arrest someone who occupies or recently occupied a nearby automobile, the permissible search area of a search incident to the arrest includes the arrestee’s person and the area subject to the arrestee’s immediate control. It also includes the passenger compartment (and only the passenger compartment) of the automobile, but only if: the arrestee is not secured, in which case police may search anywhere in the passenger compartment (including closed containers) where a weapon might be found, or police reasonably believe that evidence of the specific crime of arrest (not other crimes) is in the passenger compartment, in which case police may search anywhere in the passenger compartment (including closed containers) where the evidence might be found.

Question 76

Can a person’s presence in a high-crime area, standing alone, establish either reasonable suspicion or probable cause that the person has committed or is committing a crime? (Q)

Answer 76

No. A person’s presence in a high-crime area, standing alone, cannot establish either reasonable suspicion or probable cause that the person has committed or is committing a crime. However, if considered together with other factors, such as flight from the known presence of police officers or nervous and furtive behavior, this fact could contribute to a finding of reasonable suspicion or probable cause.

Question 77

Can a person’s history of criminal activity, standing alone, establish either reasonable suspicion or probable cause that the person has committed or is committing a similar crime? (Q)

Answer 77

No. A person’s history of criminal activity, standing alone, cannot establish either reasonable suspicion or probable cause that the person has committed or is committing a similar crime. However, if considered together with other factors, such as flight from the known presence of police officers or nervous and furtive behavior, this fact could contribute to a finding of reasonable suspicion or probable cause.

Question 78

For purposes of the Fourth Amendment, what is the good-faith exception? (Q)

Answer 78

The good-faith exception is a rule that evidence obtained in violation of the Fourth Amendment will not be suppressed if the law-enforcement officers acted in good faith and reasonably believed that their unconstitutional conduct was lawful (e.g., executing a facially valid but ultimately defective warrant). This is an exception to the general rule that evidence obtained due to a Fourth Amendment violation is inadmissible against the person whose rights were violated.

Question 79

Does the good-faith exception apply to the execution of warrants? (Q)

Answer 79

Yes. The good-faith exception applies to the execution of warrants. In general, if an officer executing a warrant acts in good faith, reasonably believing that the warrant is valid and that the officer is acting within the scope of the warrant, then evidence obtained in reliance on the warrant will be admissible even if the warrant later proves invalid. Similarly, if the officer inadvertently searches a place or seizes a person or thing not authorized by the warrant, the evidentiary fruits of the officer’s actions will be admissible if the mistake was reasonable. The good-faith exception does not apply, however, if the warrant is invalid based on (1) false information in the warrant application or (2) clear lack of probable cause that any reasonable officer should perceive.

Question 80

A detective learned that drugs were being smuggled from one specific warehouse at a shipyard with seven warehouses. The detective submitted a warrant application to a magistrate asking to search the warehouse, which the magistrate approved. The warrant authorized a search of the warehouse in the shipyard, without specifying which warehouse. The detective knew which warehouse was the right one and went to conduct the search at that warehouse, in which he discovered drugs. Later, an appellate court of last resort found the warrant facially invalid for lack of particularity regarding the place of the search, as it did not specify which of the seven warehouses to search. Assume this search violated the drug-smuggling defendants’ Fourth Amendment rights, because the warrant was invalid. Should the drugs be suppressed at a new trial against the defendants? (Q)

Answer 80

Yes. The drugs should be suppressed. Generally, evidence obtained by a Fourth Amendment violation is inadmissible against the person whose rights were violated. But the good-faith exception makes fruits of an illegal search admissible if the officer doing the search acted in good faith and reasonably believed the search was lawful. As for warrants, the exception applies if the warrant was facially valid. That is, the exception does not apply if the warrant was so clearly defective that a reasonable officer could not rely on it. Here, the search violated the defendants’ Fourth Amendment rights. The warrant was facially invalid; it did not state with particularity the place to be searched, not naming which of the seven warehouses to search. The detective should have recognized the defect, as he knew which warehouse was the right one. Thus, the good-faith exception does not apply.

Question 81

What is a Terry stop? (Q)

Answer 81

A Terry stop is one type of Fourth Amendment seizure of a person. In a Terry stop, a law-enforcement officer detains an individual for a brief period to investigate whether the person has committed or is committing a crime. The officer may conduct the Terry stop without a warrant, provided the officer has reasonable suspicion that the person detained has committed or is committing a crime.

Question 82

Without a warrant or probable cause, may law-enforcement officers lawfully search a suspect by using their hands to pat down the outside of a suspect's clothing? (Q)

Answer 82

Yes. Without a warrant or probable cause, law-enforcement officers may lawfully search a suspect by using their hands to pat down the outside of a suspect’s clothing. But there are restrictions. This procedure, also known as a Terry frisk, can be conducted only if the officer conducting it has reasonable suspicion that the suspect (1) has committed or is about to commit criminal activity and (2) is armed and dangerous. The officer must not reach into pockets or manipulate objects to learn their nature without further justification.

Question 83

For purposes of the Fourth Amendment, what is the distinction between an investigatory stop and an arrest? (Q)

Answer 83

Under the Fourth Amendment, the distinction between an investigatory stop, also termed a Terry stop, and an arrest is the extent and duration of interference with a person’s liberty. A Terry stop is a relatively brief seizure of a person by a government officer. Here, a reasonable person would expect, based on the officer's conduct, to be free to leave after answering the officer's questions and complying with the officer's demands. By contrast, an arrest occurs when a government officer forcibly restrains or takes custody of a person. Put differently, an arrest is often tantamount to taking possession of a person. Here, police conduct would communicate to a reasonable person that the police believe the person has committed a crime and are likely to pursue more serious action, such as booking for a crime.

Question 84

During a lawful Terry stop, may a police officer demand to see identification? (Q)

Answer 84

Yes. During a lawful Terry stop, a police officer may demand to see identification. This is one of the limited investigatory steps that an officer may take without any justification beyond the reasonable suspicion necessary for the stop itself.

Question 85

During a lawful Terry stop, may a police officer ask the subject questions? (Q)

Answer 85

Yes. During a lawful Terry stop, a police officer may ask the subject reasonable investigatory questions to confirm or dispel the reasonable suspicion justifying the stop. The officer may even discuss matters unrelated to the reason for the stop, provided the discussion does not unduly prolong the stop.

Question 86

In general, what is the permissible duration of a lawful Terry stop? (Q)

Answer 86

In general, a lawful Terry stop must last for no longer than reasonably necessary to confirm or dispel the reasonable suspicion justifying the stop. If the stop lasts for longer than this, it becomes an arrest and thus unlawful without the requisite probable cause or a warrant.

Question 87

In general, what is the permissible scope of investigative activity during a lawful Terry stop? (Q)

Answer 87

In general, investigative activity during a lawful Terry stop is confined to the least intrusive methods that are readily available to quickly confirm or dispel the reasonable suspicion justifying the stop. If the investigative activity exceeds this scope (e.g., intrusive search of the person or physical restraint), it becomes an arrest and thus unlawful without the requisite probable cause or a warrant.

Question 88

May an officer conducting a lawful Terry stop arrest the subject, if the subject refuses to comply with the officer’s demands? (Q)

Answer 88

Yes. An officer conducting a lawful Terry stop may arrest the subject, if the subject refuses to comply with the officer’s demands. This assumes, however, that the demands are reasonably related to the circumstances creating reasonable suspicion to justify the stop.

Question 89

Under what circumstances may an officer conducting a lawful Terry stop detain and investigate personal property? (Q)

Answer 89

An officer conducting a lawful Terry stop may detain and investigate personal property if the officer has reasonable suspicion that the property is being used in a crime. The detention and investigation must be very limited in duration and scope. Brief detention and cursory inspection of the item (e.g., exposing luggage to a sniffing dog) are permissible. However, prolonged detention or significant invasion of the item (e.g., opening a closed container) requires separate justification.

Question 90

Without probable cause or a warrant, under what circumstances may police stop a vehicle, detain its occupants, or search the vehicle or its occupants? (Q)

Answer 90

Without probable cause, police may stop a vehicle (and order its occupants out) if they have reasonable suspicion that someone in the vehicle has committed a crime, however minor. This is a type of Terry stop. Having stopped the automobile on reasonable suspicion, the officer may also detain the occupants and prevent them from re-entering the vehicle for the duration of the stop. The stop must last no longer than reasonably necessary to dispel or confirm the reasonable suspicion. Additionally, police may conduct a Terry frisk of the occupants and search the vehicle’s passenger compartment for weapons, but only upon reasonable suspicion that an occupant is armed and dangerous or could immediately gain control of a weapon.

Question 91

What is the plain-feel doctrine? (Q)

Answer 91

The plain-feel doctrine is a rule providing that if an officer conducting a lawful Terry frisk feels an item whose contour or mass makes it immediately apparent that the item is contraband or a deadly weapon, then the officer may seize the item. Put differently, the officer must have probable cause, at first feel, to believe that the item is a weapon or contraband. The plain-view doctrine does not apply, then, if the officer must manipulate the item in any way, beyond the permissible scope of the Terry frisk, to learn its dangerous or incriminating character.

Question 92

A civilian flagged down an officer on patrol, pointed to a man across the street, and stated that the man had just robbed her at gunpoint. The officer immediately approached the man and ordered him to place his hands against the nearby wall. The man complied, at which point the officer quickly patted down the outside of the man’s clothing in search of weapons. Did the officer violate the man’s Fourth Amendment rights at any point? (Q)

Answer 92

No. The officer did not violate the man’s Fourth Amendment rights. Without a warrant, police may briefly detain a person for investigation, if the officer has reasonable suspicion that the person has committed or is about to commit a crime. Reasonable, articulable suspicion that the person is armed and dangerous allows the officer to briefly pat down the person’s clothing to search for weapons. The officer must not reach into pockets or manipulate objects to learn their nature without further justification. Here, the civilian pointed at the man and stated that he had robbed her at gunpoint. This gave the officer reasonable suspicion that the man had just committed robbery and was armed and dangerous. The officer did no more than to briefly pat the man down in search of weapons. Thus, the officer lawfully stopped the man and patted him down without a warrant.

Question 93

What is the exigent-circumstances exception to the warrant requirement? (Q)

Answer 93

The exigent-circumstances exception to the warrant requirement is the rule that law-enforcement officers may enter a home or other private structure without a warrant, provided they have probable cause to believe, under all the circumstances, that one of the following will occur before they can obtain a warrant: destruction of evidence; escape of a suspect, especially a dangerous felon; or serious injury to the officers themselves or others. The exception is most likely to apply if the underlying crime involves violence or drugs (which are easily destroyed), a violent crime or dangerous incident just took place, firearms or other deadly weapons are involved, multiple people who might get hurt are on the scene, the suspect is aware of police presence, or police have not established control over the premises.

Question 94

Can the exigent-circumstances exception apply if police themselves create the exigency giving rise to the exception? (Q)

Answer 94

Yes. The exigent-circumstances exception can apply if police themselves create the exigency giving rise to the exception. However, if police violate or threaten to violate the Constitution in creating the exigency, the exception will not apply.

Question 95

What is the hot-pursuit doctrine? (Q)

Answer 95

The hot-pursuit doctrine is a rule that law-enforcement officers in continuous and active pursuit of a fleeing criminal, usually a fleeing felon, may follow the criminal into a private residence without first obtaining a warrant authorizing entry into the home. The police must have probable cause to believe the suspect committed the crime. The doctrine ceases to apply with a substantial interruption in the continuity of the pursuit, usually if the subject successfully evades the officers.

Question 96

Do some courts apply the hot-pursuit doctrine if the person being pursued committed a misdemeanor? (Q)

Answer 96

Yes. Some courts apply the hot-pursuit doctrine if the person being pursued committed a misdemeanor, as opposed to a felony. More particularly, these courts will apply the hot-pursuit doctrine if: the suspect committed a misdemeanor in the presence of police, the police attempt to arrest the suspect, and the suspect tries to flee. In misdemeanor cases, the hot-pursuit doctrine is more likely to apply if the suspect is armed and dangerous.

Question 97

In general, what are the permissible scope and duration of police activity under the exigent-circumstances exception to the warrant requirement? (Q)

Answer 97

In general, the scope and duration of police activity under the exigent-circumstances exception must be limited to what is reasonably necessary to deal with the emergency giving rise to the exception. Once the emergency dissipates, the police must leave the premises, without some independent justification to remain.

Question 98

Under what circumstances may police enter private premises to seek and subdue a dangerous criminal without a warrant? (Q)

Answer 98

Police may enter private premises, such as a home, to seek and subdue a dangerous criminal without a warrant if they have probable cause to believe that the criminal poses an immediate risk of serious harm to the police or others. This rule ceases to apply once: the criminal is apprehended and the police are or should reasonably be satisfied that the premises are secure and everyone present is accounted for. This rule is a subset of the exigent-circumstances exception to the warrant requirement.

Question 99

What is the emergency-aid exception to the warrant requirement? (Q)

Answer 99

The emergency-aid exception is a rule providing that police may enter a home or other private premises without a warrant, if they reasonably believe that immediate entry is necessary to assist someone who is or is about to be seriously injured. This rule is a corollary of the exigent-circumstances exception to the warrant requirement.

Question 100

Police officers suspected that drug dealers were distributing drugs from a house. Without a warrant, the officers went to the house and began pounding loudly on the front door, identifying themselves as police and demanding entry. Assume this behavior was lawful. Through the door, the police heard someone yell an obscenity about the police and then admonish another to flush something. They then heard rapid footsteps running away from the door. Thus, they broke down the front door and entered the house. Under the Fourth Amendment, did the police lawfully enter the house without a warrant? (Q)

Answer 100

Yes. Under the Fourth Amendment, the police lawfully entered the house without a warrant. Usually, police need a valid warrant to enter a home. But an exception applies if exigent circumstances exist, in which the situation’s urgency makes obtaining a warrant impracticable. One case of exigent circumstances exists if police have reason to believe that evidence of a crime will be destroyed before they can obtain a warrant. Police may create the exigency, if they do not commit or threaten a constitutional violation. Here, the police pounded the door and demanded entry. This lawful behavior prompted someone to curse the police and tell another to flush something. The rapid footsteps indicated the other person rushed to comply. This gave the police reason to believe that evidence would be destroyed imminently, leaving no time for a warrant. Thus, this exigency justified entering the house.

Question 101

What is the automobile exception to the warrant requirement? (Q)

Answer 101

The automobile exception to the warrant requirement is a rule permitting police to search or seize an automobile without a warrant, if they have probable cause to believe that the automobile contains contraband or evidence of a crime. If the exception applies, police may: search any place in the automobile where they have probable cause to believe the evidence or contraband could be found; search closed containers, regardless who owns them; search the passenger compartment; search parts of the automobile other than the passenger compartment, such as the chassis or tires; destroy parts of the car (e.g., slashing tires) as needed to effectuate the search; and impound the automobile and its contents, take it to a secure facility, and search it there.

Question 102

Is the automobile exception to the warrant requirement the only constitutional rule permitting police to search or detain an automobile without a warrant? (Q)

Answer 102

No. The automobile exception to the warrant requirement is not the only constitutional rule permitting police to search or detain an automobile without a warrant. In appropriate circumstances, police may also search or detain an automobile while conducting either (1) a search incident to a lawful arrest or (2) a lawful Terry stop. Very often, two or even all three of these rules may permit the warrantless search or detention of an automobile on the same facts. However, the rules about what circumstances justify the search or detention, along with the scope and duration of the search or detention, differ with each rule.

Question 103

Can an individual’s consent legitimize police conduct that would otherwise violate the Fourth Amendment? (Q)

Answer 103

Yes. An individual’s consent can legitimize conduct that would otherwise violate the Fourth Amendment. However, the consent must be voluntary, and police must remain within the scope of the consent as a reasonable, similarly situated police officer would understand it. If the consent is not voluntary, or if the police exceed the scope of the consent, then the consent will not legitimize the police conduct.

Question 104

For consent to be valid under the Fourth Amendment, must the consent be knowing, intelligent, and voluntary? (Q)

Answer 104

No. For consent to be valid under the Fourth Amendment, consent need not be knowing or intelligent. It need only be voluntary. Accordingly, for consent to be valid, police need not inform the suspect that he or she has the right to refuse consent, nor exhaustively explain whatever constitutional right the suspect is relinquishing by consent. They need only obtain voluntary consent to their particular actions. The rule here differs from the rule in other criminal-procedure contexts, such as Miranda rights or the right to a trial, in which waiver of the constitutional right must be knowing, intelligent, and voluntary.

Question 105

Under what circumstances is consent voluntary under the Fourth Amendment? (Q)

Answer 105

Consent is voluntary under the Fourth Amendment only if a reasonable, innocent person in the subject’s position would feel free to decline the officer’s request or otherwise terminate the encounter. By contrast, consent is not voluntary if it is merely a submission to the officer’s show of force or authority, or if the subject’s will is overborne so that the consent is not really the product of a free choice. Thus, coercive behaviors like threats, intimidation, physical mistreatment, commands, gestures toward a weapon, yelling, and so on weigh against finding voluntariness. Voluntariness does not require freedom from all pressure from the police, however. Police may try to persuade a subject to consent, provided they do not coerce the subject.

Question 106

For consent to be voluntary under the Fourth Amendment, must police inform the subject that he or she may refuse to consent? (Q)

Answer 106

No. For consent to be voluntary under the Fourth Amendment, police need not inform the subject that he or she may refuse to consent. However, if police do so inform the subject, this weighs in favor of finding that consent was voluntary.

Question 107

Is a person’s consent involuntary for Fourth Amendment purposes, simply because the person is subject to a seizure or in police custody when giving consent? (Q)

Answer 107

No. A person’s consent is not necessarily involuntary for Fourth Amendment purposes, simply because the person is subject to a seizure or in police custody when giving consent. This fact is relevant, but it does not preclude voluntary consent if the totality of the circumstances indicates that the consent is the product of a free choice. This assumes, though, that the seizure is lawful. If a person gives consent during an unlawful seizure, a court is unlikely to find the consent to be voluntary.

Question 108

Are the subject’s mental and other characteristics a factor courts consider when evaluating whether consent to police conduct is voluntary for Fourth Amendment purposes? (Q)

Answer 108

Yes. The subject’s mental and other characteristics are a factor courts consider when evaluating whether consent to police conduct is voluntary for Fourth Amendment purposes. The most important of these characteristics include the subject’s age, intelligence, mental condition, education, sophistication, sobriety or intoxication, and prior experience with the criminal-justice system. Particularly, prior experience with the criminal-justice system tends to support finding voluntary consent. Psychological vulnerabilities, such as intoxication or mental illness, tend to weigh against finding voluntariness, especially if police knowingly exploit those vulnerabilities.

Question 109

Who can give valid consent for police to search a home or other private property? (Q)

Answer 109

A person with common authority over a home or other property can give valid consent for police to search the property. A person has common authority if the police reasonably believe, based on all the circumstances and prevailing societal norms, that the person could rightfully admit an outsider onto the property. For a person to validly consent to a search of particular areas or items, police must reasonably believe that the person has authority over those areas or items. The officers’ reasonable perception, more so than the actual state of things, is controlling. In general, those with common authority include: rightful possessors of the property, such as owners or lessors; those who reside on the property; and overnight guests, with respect to areas over which one would reasonably expect the guest to have some control.

Question 110

Without independent justification, under what circumstances may police search a home or other private property over the express objection of someone with common authority over the property? (Q)

Answer 110

Without independent justification, like a warrant, police may search a home or other private property over the express objection of someone with common authority over the property only if another with common authority consents, and: police lawfully remove the objecting party from the premises, as by lawful arrest, or the person giving consent is superior in the social or familial hierarchy within the premises (e.g., parent admitting police over a minor child’s objection). Police need not affirmatively seek consent from each person with common authority. If police have valid consent from one with common authority, they may conduct the search if no one else with common authority objects.

Question 111

May probationers and parolees be required to submit to suspicion less, warrantless searches of their homes and effects as a condition of early release? (Q)

Answer 111

Yes. Probationers and parolees may be required to submit to suspicionless, warrantless searches as a condition of early release. These searches are constitutional.

Question 112

Under what circumstances may a government administrative agency responsible to supervise a certain industry conduct a warrantless search of commercial premises used in the industry? (Q)

Answer 112

A government administrative agency responsible to supervise a certain industry may conduct a warrantless search of commercial premises used in the industry only if: the particular industry has been subjected to such close regulation, as a matter of longstanding history or tradition, that the proprietor could reasonably anticipate administrative inspections (e.g., coal mining, liquor sales, firearms sales); a substantial government interest informs the relevant regulatory scheme (e.g., need to assure mine safety); warrantless, or unanticipated, inspections are necessary to further the regulatory scheme (usually, this means that advance notice would enable the proprietor to hide violations); and the regulatory scheme provides a constitutionally adequate substitute for a warrant. If any of these requirements fails, the agency must generally obtain an administrative warrant to search the premises.

Question 113

In the context of administrative inspections of commercial premises, what is required for the regulatory scheme to provide a constitutionally adequate substitute for a warrant? (Q)

Answer 113

In the context of administrative inspections of commercial premises, for the regulatory scheme to provide a constitutionally adequate substitute for a warrant, it must perform a warrant’s two basic functions. That is, it must (1) advise the premises’ owner that the search is occurring according to law and has an appropriately defined scope and (2) limit the inspecting officers’ discretion. To do these things, in turn, the scheme must: be comprehensive and well-defined enough that the owner can anticipate administrative or regulatory inspections on the premises and limit the time, place, and scope of the search, to assure that it bears a close enough connection to the purpose of the regulatory scheme.

Question 114

What are the requirements for a valid warrant authorizing an administrative inspection of commercial premises? (Q)

Answer 114

A valid warrant authorizing an administrative inspection of commercial premises requires a neutral and detached magistrate to find either: probable cause to believe that an administrative regulation has been violated or that the premises were selected for inspection based on reasonable, neutral criteria set forth in the governing law. These criteria are considerably less stringent than those that apply to a warrant authorizing a search for evidence of a crime or the seizure of a person or property.

Question 115

Does the Fourth Amendment exclusionary rule apply to evidence of a crime that happens to turn up during a lawful administrative inspection? (Q)

Answer 115

No. The Fourth Amendment exclusionary rule does not apply to evidence of a crime that happens to turn up during a lawful administrative inspection. This principle is similar in concept to the plain-view doctrine.

Question 116

What is an inventory search? (Q)

Answer 116

An inventory search is a search that police routinely conduct upon arresting a person or impounding an automobile. Generally, police will inspect and catalogue (1) the arrestee’s personal effects, including closed containers, or (2) the automobile and all its contents, again including closed containers, as the case may be.

Question 117

May police conduct an inventory search without a warrant? (Q)

Answer 117

Yes. Police may conduct an inventory search without a warrant. However, the officers conducting the search must: follow reasonable, uniform procedures (i.e., standardized criteria or an established routine) and not conduct the search in bad faith or for the sole purpose of facilitating a criminal investigation. Officers conducting the search may exercise discretion, so long as they do so based on standard criteria and for reasons other than suspicion of evidence of a crime. These requirements will be satisfied in the overwhelming majority of cases.

Question 118

If police discover contraband or evidence of a crime during a valid warrantless inventory search, may they seize that evidence under the plain-view doctrine? (Q)

Answer 118

Yes. If police discover contraband or evidence of a crime during a valid warrantless inventory search, they may seize that contraband or evidence under the plain-view doctrine. The plain-view doctrine’s usual restrictions apply in this context.

Question 119

In general, what are the special-needs exceptions to the warrant requirement? (Q)

Answer 119

In general, the special-needs exceptions to the warrant requirement are discrete rules permitting warrantless searches or seizures in unique factual situations. These tend to create unique problems of governance, other than general law enforcement, calling for special deference to the judgment of government officials. The U.S. Supreme Court considers several factors when deciding whether to recognize a special-needs exception, including: the gravity of the public concerns at issue; the degree to which the search or seizure would advance the public interest, without choosing among reasonable alternatives; and the degree to which the search or seizure would infringe upon personal liberties.

Question 120

May police strip search a lawfully detained individual without a warrant? (Q)

Answer 120

Yes. Police may strip search a lawfully detained individual without a warrant. This principle is one of the special-needs exceptions to the warrant requirement. The U.S. Supreme Court acknowledged this exception to accommodate the unique security concerns facing those in charge of detention facilities like jails or prisons.

Question 121

Without a warrant or individualized suspicion, may police set up sobriety checkpoints at fixed locations on public roadways? (Q)

Answer 121

Yes. Without a warrant or individualized suspicion, police may set up sobriety checkpoints at fixed locations on public roadways. The locations must be selected based on uniform and neutral guidelines. At the checkpoints, police may briefly stop motorists, ask them questions, and observe them for signs of intoxication. Any further or more invasive action toward a particular motorist requires independent justification, such as a warrant, reasonable suspicion for a Terry stop, or probable cause for a warrantless arrest. This principle is one of the special-needs exceptions to the warrant requirement. The U.S. Supreme Court acknowledged this exception because drunk driving poses unique dangers to the public.

Question 122

Without a warrant or individualized suspicion, may police on roving patrols stop motorists at their own discretion to check for sobriety? (Q)

Answer 122

No. The U.S. Supreme Court has held that without a warrant or individualized suspicion, police on roving patrols may not stop motorists at their own discretion to check for sobriety. One of the special-needs exceptions to the warrant requirement is that, without a warrant or suspicion, police may set up fixed sobriety checkpoints on the public roads. However, this authority does not permit roving patrols to check for sobriety. An officer on patrol must have a warrant or grounds for a Terry stop or warrantless arrest to stop a motorist.

Question 123

Without a warrant or individualized suspicion, may police set up fixed checkpoints on the public roads to check passing motorists for possession of evidence or contraband? (Q)

Answer 123

No. The U.S. Supreme Court has held that, without a warrant or individualized suspicion, police may not set up fixed checkpoints on the public roads to check passing motorists for possession of evidence or, more likely, contraband (e.g., illegal drugs). One of the special-needs exceptions to the warrant requirement is that, without a warrant or suspicion, police may set up fixed sobriety checkpoints on the public roads. However, this authority does not permit fixed checkpoints to look for general criminal evidence or contraband.

Question 124

Without a warrant or individualized suspicion, may police set up fixed checkpoints at which all motorists are briefly stopped and asked questions concerning a crime that took place in the area? (Q)

Answer 124

Yes. Without a warrant or individualized suspicion, police may set up fixed checkpoints at which all motorists are briefly stopped and asked questions concerning a crime that took place in the area. This is especially true if some ongoing threat to safety is involved, such as a drunk driver or dangerous fugitive. Any further, more invasive action toward a motorist requires, at minimum, justification for a Terry stop. This rule is one of the special-needs exceptions to the warrant requirement.

Question 125

Without a warrant or individualized suspicion, may immigration officials set up fixed checkpoints at or near the border to briefly stop vehicles and ask about immigration status and related matters? (Q)

Answer 125

Yes. Without a warrant or individualized suspicion, immigration officials may set up fixed checkpoints at or near the border to briefly stop vehicles and ask about immigration status and related matters. This includes authority to divert selected vehicles for brief questioning.

Question 126

What, at minimum, is required for immigration officials on roving border patrol to stop a vehicle to question occupants about immigration status and other matters? (Q)

Answer 126

Immigration officials on roving border patrol may stop a vehicle to question occupants about immigration status and other matters only if they have, at minimum, reasonable suspicion that the vehicle contains illegal aliens or contraband. Relevant factors include: the area’s characteristics and proximity to the border; usual traffic patterns; officials’ prior experience with illegal-alien traffic and other relevant matters; information about recent illegal border crossings; the driver’s behavior, particularly erratic or evasive behavior; an unusually high number of occupants in the vehicle; and whether the type of vehicle is often used to transport illegal aliens. A person’s apparent ancestry or national origin, while relevant, is not sufficient by itself to establish reasonable suspicion that the person is an illegal alien.

Question 127

Under what circumstances may immigration officials search an automobile at or near the border without a warrant? (Q)

Answer 127

If an automobile’s occupants are seeking entry into the United States, immigration officials may search the automobile itself without a warrant or any individualized suspicion. This includes authority to disassemble the automobile to search for contraband. If the automobile’s occupants are not seeking entry into the United States, a warrantless search of the automobile requires probable cause to believe that the vehicle contains illegal aliens or contraband.

Question 128

Under what circumstances may a public-school official search a student and his or her belongings without the student’s consent? (Q)

Answer 128

A public-school official may search a student and his or her belongings without the student’s consent if the search is reasonable under the circumstances. The search is reasonable, in turn, if: the official has reasonable grounds to believe that the search will produce evidence that the student is violating the law or school rules, and the manner of the search is reasonably related to the search’s objectives and not excessively intrusive, considering the student’s age and sex and the nature of the infraction. Strip searches are reasonable only if there is a reasonable likelihood that the student is transporting particularly dangerous contraband in his or her undergarments.

Question 129

Without a warrant or individualized suspicion, may public-school officials subject students participating in extracurricular activities to random urinalysis for drug testing? (Q)

Answer 129

Yes. Without a warrant or individualized suspicion, public-school officials may subject students participating in extracurricular activities, such as athletics, to random urinalysis for drug testing. This is one of the special-needs exceptions to the warrant requirement.

Question 130

Does the Fourth Amendment apply if the government seeks to subject its employees to a search or seizure? (Q)

Answer 130

Yes. The Fourth Amendment applies if the government seeks to subject its employees to a search or seizure. However, the standards are relaxed. If the government has a compelling interest (e.g., intercepting illegal drugs or other contraband), it may take reasonable and neutral measures that impose a minimal invasion of privacy without a warrant or individualized suspicion.

Question 131

In the context of the Fourth Amendment exclusionary rule, what is the doctrine of standing? (Q)

Answer 131

The doctrine of standing is the principle that one cannot rely on a violation of another’s Fourth Amendment rights to suppress evidence obtained as a result of the violation. Evidence obtained due to a Fourth Amendment violation is generally inadmissible at criminal trial against the person whose rights were violated, but it is admissible against others. To have standing to suppress evidence under the Fourth Amendment exclusionary rule, an individual must seek to exclude the fruits of an unlawful: seizure of his or her person or search of a place in which he or she had a reasonable expectation of privacy. Ownership of any evidence seized is relevant but not dispositive. What matters much more is who had a reasonable expectation of privacy in the place, container, or vehicle from which the evidence was seized (e.g., the owner).

Question 132

What is the impeachment exception to the Fourth Amendment exclusionary rule? (Q)

Answer 132

The impeachment exception is a doctrine allowing evidence obtained due to a Fourth Amendment violation to be admitted into evidence at a criminal trial against the person whose rights were violated, but only to contradict, or impeach, that person’s testimony. The jury must not consider the evidence as substantive evidence of guilt, but only insofar as it calls into question the truth of the person’s testimony. Also, evidence obtained due to a Fourth Amendment violation is generally not admissible to impeach the testimony of witnesses other than a criminal defendant.

Question 133

What does it mean to say that police obtained evidence as an indirect result of a constitutional violation? (Q)

Answer 133

To say that police obtained evidence as an indirect result of a constitutional violation means that substantial, independent, intervening circumstances combined with the violation and ultimately led police to discover the evidence. Put more simply, the constitutional violation gives police a lead by which they eventually discover the evidence.

Question 134

What is the derivative-evidence doctrine? (Q)

Answer 134

The derivative-evidence doctrine governs the admissibility of evidence obtained as an indirect result of a constitutional violation, usually a Fourth Amendment violation. This kind of evidence is not necessarily subject to the exclusionary rule. Rather, the evidence will be suppressed only if the police obtained it by exploiting the constitutional violation. By contrast, if the causal connection between the violation and the discovery of the evidence is sufficiently attenuated, the taint of the violation will dissipate. In that event, the evidence is admissible. Relevant factors include: how much time passed between the violation and the discovery of the evidence, the physical distance between the site of the violation and the evidence’s location, any relevant intervening circumstances, any valid consent, and the purpose and flagrancy of the violation.

Question 135

Does the derivative-evidence doctrine apply to incriminating statements obtained as an indirect result of a Fourth Amendment violation? (Q)

Answer 135

Yes. The derivative-evidence doctrine applies to incriminating statements obtained as an indirect result of a Fourth Amendment violation (e.g., statement obtained by interrogating someone unlawfully seized). This means that the statement will be excluded, if the causal connection between the violation and the statement is sufficiently close. Conversely, if the statement was voluntary, and the suspect made the statement due to factors mostly independent of the violation, then the causal connection is sufficiently remote to render the statement admissible.

Question 136

May live witness testimony be excluded under the derivative-evidence doctrine? (Q)

Answer 136

Yes. Live witness testimony may be excluded under the derivative-evidence doctrine; that is, if the witness decided to testify as an indirect result of a constitutional violation. However, suppression requires a much closer causal connection between the violation and the decision to testify than the doctrine requires for other types of evidence. Relevant factors include: the degree of free will the witness exhibited in deciding to testify; the time, place, and manner of any prior questioning of the witness; and the extent to which the constitutional violation factored into the witness’s decision to testify. If the overall circumstances indicate that the witness decided to testify mostly out of considered deliberation and a desire to cooperate with law enforcement, not due to the violation, then the testimony will likely be admitted.

Question 137

In what proceedings does the Fourth Amendment exclusionary rule apply? (Q)

Answer 137

The Fourth Amendment exclusionary rule applies only in (1) the guilt phase of a criminal trial and (2) a forfeiture proceeding in which the government sues to take property away from someone to punish the person for a crime. The Fourth Amendment exclusionary rule simply does not apply in other proceedings, such as civil trials (including civil litigation between the government and a private party), the sentencing phase of a criminal trial, and grand-jury proceedings.

Question 138

What is the independent-source rule? (Q)

Answer 138

The independent-source rule provides that if police violate the Fourth, Fifth, or Sixth Amendment and thus become aware of incriminating evidence, the evidence is not subject to the exclusionary rule if ultimately obtained from a source unconnected to the violation. For the rule to apply, there must be no significant causal connection between the violation and the procurement of the evidence. The government bears the burden to demonstrate that the independent-source rule is satisfied.

Question 139

What is the inevitable-discovery doctrine? (Q)

Answer 139

The inevitable-discovery doctrine provides that evidence discovered by unconstitutional means is not subject to the exclusionary rule if it would inevitably have been discovered by legitimate means. The inevitable-discovery rule applies if demonstrated, historical facts show that an independent investigation would have led police to discover the evidence. In addition, some courts require that the independent investigation be ongoing at the time of the constitutional violation.

Question 140

A defendant was unlawfully arrested in violation of the Fourth Amendment. Immediately after the arrest, police forced the defendant to participate in an identification procedure. The defendant was identified as the perpetrator. Can the defendant suppress evidence of the out-of-court identification as an illegal fruit of the Fourth Amendment violation? (Q)

Answer 140

Yes. The defendant can suppress evidence of the out-of-court identification as an illegal fruit of the Fourth Amendment violation. An out-of-court identification procedure is subject to a fruit-of-the-poisonous-tree analysis. Under that framework, the identification will be suppressed if it is the direct result of a Fourth Amendment violation, such as an unconstitutional arrest. This is true regardless of whether the underlying procedure is unnecessarily suggestive, or whether the resulting identification is reliable. Here, the defendant was identified as a perpetrator as a direct result of an unlawful arrest. Thus, the defendant may suppress evidence of the out-of-court identification.