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Test
Test
4th Amendment Applicability


What rights come from the 4th Amendment?
The right to be:
-free from unreasonable searches and seizures, AND
-free from warrants issued without probable cause (PC)
-any warrant must particularly describe the scope of the search.
2 distinct rights
4th Amendment Applicability

2 schools of thought on interpretting the 4th Amendment
-Warrant Preference: The use of "AND" means that a search sans a warrant is per se unreasonable
-Reasonableness Preference (modernly accepted view): The clauses are read separately. The reasonableness of a search does not turn on whether there was a warrant.
Warrant Preference
Reasonableness Preference
4th Amendment Applicability

When does the 4th Amendment apply?
1)The conduct in question is a Governmental Action (not private actors)
2)The conduct must constitute a "search"
2 requirements must be met
4th Amendment Applicability

Rule Statement for 4th Amendment applicability
The 4th Amendment is implicated only when a public actor intrudes into an area deemed one in which a person may reasonably expect privacy.
4th Amendment Applicability

What can constitute "Government Action" re: 4th Amendment applicability?
1) an agent of the government (police)
2) private individual acting at the direction of a governmental agent
Government and private individuals when...
4th Amendment Applicability

What is a search?
1) the person has a subjective expectation of privacy
2) society would deem that expectation to be reasonable
Katz Test
individual and society
4th Amendment Applicability

The 4th Amendment protects...
People not Places
Supreme Court holding in Katz
4th Amendment Applicability

4th Amendment and Recording Conversations
Situation A: Neither person (participating in the conversation) knows they are being recorded. SEARCH per Katz

Situation B: At least one person knows the conversation is being recorded. NO SEARCH per Hoffa
The bad friend concept
4th Amendment Applicability

Hoffa/White
When you disclose info to a third party you are taking on the risk that they may tell another person (or the authorities). Misplaced reliance on loyalty is not entitled to constitutional protection.
Snitch
4th Amendment Applicability

Disclosure of Info to a 3rd party
Besides the situation in Hoffa/White, when you disclose information to a 3rd party (bank, telephone company, trash man, etc) you have no reasonable expectation of privacy .
Utilities
4th Amendment Applicability

What is not protected by the 4th Amendment?
voice exemplars
handwriting
fingerprints
external physical characteristics
4th Amendment Applicability

Expectation of Privacy (EOP) in the Home
The court has drawn a bright line at the home. The protection "emanating" from the home extends to the curtilage, and lessens from there.
-Oliver: open fields are not subject to the protections provided to the home
-Riley/Ciraolo: naked-eye observation from a helicopter/aircraft is okay
4th Amendment Applicability

Factors when Evaluating a [possible search of the Curtilage
Where the police:
1) legally allowed to be where they were (IE obeying FAA guidelines)
2) observed with the naked eye
4th Amendment Applicability

Sensory enhancing devices
Where the device merely enhances sensory perception and facilitates surveillance that otherwise would be possible with the enhancement, there is no search.
Includes:
-flashlight
-aerial camera
-photographic or video recording
-drug-detection dog

**BUT see Kyllo
4th Amendment Applicability

Electronic Tracking Devices
Situation A: when you monitor an object on public roads there is no search because the movements could have been observed by the naked eye. NO SEARCH per Knotts

Situation B: continued monitoring after the object is taken into a home is a search because the beeper revealed information that could not have been obtained through unaided surveillance. SEARCH per Karo
Beepers
4th Amendment Applicability

Kyllo
When the police use a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and presumptively unreasonable without a warrant.
MJ grow lights
4th Amendment Applicability

Approach for "Search" problems
1) Privacy Expectations of the person (Katz)
2) The place observed
3) The vantage point of the police
Requirements of 4th Amendment

Basic Premise
The police must have justification (or cause) before they conduct a search or seizure
Requirements of 4th Amendment

When must the justification exist
The Probable Cause (PC)/Reasonable Suspicion (RS)/etc. MUST exist before the serach.

The search cannot be "healed" when they actually find something after the fact
Requirements of 4th Amendment

What level of "cause" is required?
There is a balancing test, you weigh "effective law enforcement" against "individual liberty"

Probable Cause (most protective of individual liberty) is on one end of the scale, and Reasonable Suspicion is on the other end of the scale (least protective of individual liberty)
Balancing Test
Requirements of 4th Amendment

Level of Cause for Full Scale Intrusions
Probable Cause.

This can be with or without a warrant
Requirements of 4th Amendment

What is PC?
Information that would warrant a reasonable person to conclude that the individual in question has committed a crime or that specific items relating to criminal activity will be found at the particular place.
Requirements of 4th Amendment

Reliability of Information when determining PC
Gates Test: Totality of the Circumstances (TOC).

This "replaced" the Aguilar/Spinelli Test. (IE, you can still use the Aguilar/Spinelli test, but it is not dispositive)
Gates
Requirements of 4th Amendment

Totality of Circumstances Test
Look to the overall relability of the tip on a sliding scale basis.

IE, if you have an anonomous tip (no ability to determine credibility), you can make up for it with a very strong showing that basis for the information is eye-witness, or any other showing of reliability.
Gates Test
Requirements of 4th Amendment

Aguilar/Spinelli Test
2-prong test:
1) Credibility of the informant (why should I believe you?) AND
2) Basis of the informant's knowledge (how do you know this?)
Requirements of 4th Amendment

Officer Motive
Officer Motive is not important. If there was valid PC, the court does not want to go "digging into the depths of the police officer's mind"
Requirements of 4th Amendment

Terry Stop/Frisk
If an officer has reasonable suspicion that the individual may be involved in a crime, he may stop them

If he has reasonable suspicion that the person may be armed and dangerous, he may frisk the,
Requirements of 4th Amendment

What is Reasonable Suspicion?
It is much less than preponderance of hte evidence, but more than a suspicion or hunch.

Absent some indication of reliability, an anonomous tip will not support a Terry stop

Flight in a high crime area is enough for a Terry Stop
Requirements of 4th Amendment

What is a Stop/Seizure (per the 4th amendment)?
When an officer, by means of physical force or show of authority, has in some way restrained the liberty of the subject.

Thus, a stop is when a resonable person would have believed that he was not free to leave.

The Courts look to all the circumstances surrounding the encounter to determine if a seizure has occurred.
Requirements of 4th Amendment

Circumstances which would lead a reasonabel person to believe they were not free to leave
-threatening presence of police officers
-display of a weapon by officer
-physical touching of the person by the officer
-language or tone of voice indicating compliance with officer is required.
-actual advising the person they can refuse to comply
Requirements of 4th Amendment

When there is no Seizure
-Foot pursuit
-Passenger of bus
-Usual Questioning accompanying Vehicluar stops
Requirements of 4th Amendment

Where there is a seizure
-Vehicle stops (must have at least RS to believe a traffic violation has occurred)
-Usual Questioning accompanying Vehicluar stops
Requirements of the 4th Amendment

When does a stop turn into a full-scale arrest, thus triggering the PC requirement?
FL v. Royer: The RS stop must be temporary and last no longer than necesary. Also, the investigatory means used should be the least intrusive means available to dispel the officers suspicion in a short period of time
Temporary, short, least intrusive means
Requirements of the 4th Amendment

Bright-Line Rule for determining when a Stop becomes an arrest
There is no bright line rule.

The Courts weigh the degree of intrusion and the amount of force used on the subject
Requirements of the 4th Amendment

Vehicular Terry Stops
Police can stop the car if they have RS the motorist is violating the law.
-This includes
-ordering the passengers out of the car
-drug dog sniffing the outside of the car (if getting the dog to scene does not unreasonably prolong the stop

If the officer has RS any passenger is armed and dangerous, he can frisk or do a limited search of the passenger compartment
Requirements of the 4th Amendment

Terry Stops and home sweeps
An officer can do a limited protective sweep of a home where an arrest is being made when the officer has RS that the area harbors a danger
What is a warrant
A judicial authorization for police action, either to search a particular place, or to arrest a particular person.
4th Amendment and Warrants

Why a Warrant?
By requiring judicial approval prior to the search/arrest, the individual is protected against unilateral actions of a overzealous police officer.
4th Amendment and Warrants

Preference for Warrants
The Court has expressed a preference for warrants, but they have carved out numerous exceptions (based on either the impracticability of getting a warrant in exigent circumstances, OR a dimished expectation of privacy)
4th Amendment and Warrants

A valid warrant requires...
1) Issued by a nuetral judge
2) Adequate showing of PC supported by affidavit
3) Particular description of the item/place to be searched, or the person to be arrested.
3 things are required
4th Amendment and Warrants

Knock and Announce
Knock, wait a reasonable period of time (wait time is determined by how long it would take the occupants to dispose of the evidence sought)
4th Amendment and Warrants

No Knock
If the police have RS there is a threat of violence or escape a "no-knock" warrant may be justified.
4th Amendment and Warrants

Violation of the Knock and Announce
A violation of the knock and announce rule does not trigger exclusion of the evidence found per the search warrant
4th Amendment and Warrants

Policy behind knock and announce
Property damage and the Individuals personal decency is weighed against Police's interest in not having evidence destroyed, people escaping
4th Amendment and Warrants

Warrantless Arrest
You can arrest in a public place with PC.

Even if there was time to get a warrant, none is needed

You must have a warrant to arrest in a home
4th Amendment and Warrants

Home Arrest
A warrant is needed to enter and effectuate a non-exigent arrest in the subjects home.

*Doorway/Porch is not considered "in home" for these purposes
4th Amendment and Warrants

Arrest Warrant
Needed to arrest suspect in his own home.

Arrest warrant gives the police authority to enter the home (if they have reason to believe he is there) and search for the person in their home.

If arresting in a 3rd parties home, must have a search warrant to enter and search for the suspect.
Exceptions to the Warrant Requirement that Require PC
1) Exigent Circumstances
2) Seach Incident to Arrest
3) Automobile and Container Search
Exceptions to the Warrant Requirement that Require RS
1) Terry Stop
2) Investigative Detentions
Exceptions to the Warrant Requirement that Require No Justification
1) Consent
Exceptions to the Warrant Requirement that Require PC

Exigent Circumstances
Hot Pursuit
Requirements:
1) the circumstances require urgency, making resort to a warrant process impracticable and risky, AND
2) there is PC
Exceptions to the Warrant Requirement that Require PC

Search Incident to Arrest
Requirements
1) Arrest is lawful (based on PC or arrest warrant)
2) Arrest must procede the search (the arrest must justify the search, not the other way around. But if it is just a formailty that the arrest is delayed until after the search, that can be okay)
3) Scope is limited to arrestee's person, their "grabable" space (you can seize and open containers)
Exceptions to the Warrant Requirement that Require PC

Belton
Chimel wing-span is extended to include the entire passenger compartment and open any containers.
Exceptions to the Warrant Requirement that Require PC

Thornton
Belton search can be done even if the person was stopped after exiting the vehicle
Exceptions to the Warrant Requirement that Require PC

Search Incident to Citation
If Officer has choice, arrest or citation, and they choose citation, they cannot then perform a search, per Knowles
Exceptions to the Warrant Requirement that Require PC

Car exception extended
-Mobile homes (if not affixed to ground)
-Boats
-Airplanes
Exceptions to the Warrant Requirement that Require PC

Acevedo
Police amy search an automobile and any containers (including passengers property) within it when they PC to believe contraband or evidence of crime is present anywhere inside.

The only limitation on the scope of the search is size (drugs v. aliens)
Exceptions to the Warrant Requirement that Require RS

Stop and Frisk
Terry Stops do not require a warrant
Exceptions to the Warrant Requirement that Require no Justification

Consent
You can waive your consitutional rights

For 4th amendment waivers you only need the waiver to be voluntary (no coercion)

Advising that the subject has the right to refuse consent is a strong factor in showing it was voluntary
Exceptions to the Warrant Requirement that Require no Justification

Who can Consent?
By the person whose property is being searched, or by a third party who shares the property.

The scope is limited to the consent given.
Exceptions to the Warrant Requirement that Require no Justification

What if one consents and one refuses?
As long as one objects, there is no consent.

**TIP: you may be able to get PC from the consenting spouse
Plain View Doctrine
The plain view doctrine permites an officer to make a warrantless seizure of incriminating items that she comes upon while otherwise engaged in a lawful arrest, entry, or search.

This does not permit a search, only a seizure.
Policy behind plain view doctrine
The officer is there lawfully, once the item has been spotted, it would be a needless inconvenience to go get a warrant because the item has already been discovered.
Requirements for Plain View Doctrine
1) Officers original intrusion is lawful
2) The officer is within the scope of that intrusion
3) It is immediately apparent that the item is contraband or evidence of a crime
When the plain view doctrine does not apply
THere must be a "lawful intrusion", so the police walking by a window will not allow them to enter and seize the contraband. The plain view doctrine is triggered only after the officers have lawfully intruded, it DOES NOT provide justification for the entry.
Exclusionary Rule
The exclusionary rule requires suppression of evidence obtained in violation of the defendant's constitutional rights.

This ensures police compliance with the constitution
The Exclusionary Rule

Fruit of the Poisonous Tree (FoPT)
You cannot use the tainted evidence, or anything else that comes from the tainted evidence against the person whose rights were violated.
Fruit of the Poisonous Tree

Wong Sun
WHere the secondary evidence was discovered through exploitation of the initial illegality, it must be suppressed.

Where the secondary evidence is obtained by means sufficiently removed from the initial illegailty, it is admissible
Fruit of the Poisonous Tree

Has the taint been purged?
Factors the Court looks at when determining whether the taint has been purged:
1) time period between the illegality and the acquisition of the secondary evidence
2) occurrance of intervening events (more acts of "free-will" more likely it is attentuated)
3) flagrancy of the initial illegality
Fruit of the Poisonous Tree

Independant Source
If the secondary evidence was obtained through an independant source, not solely by by exploiting the original illegality, the evidence will not be suppressed.
Fruit of the Poisonous Tree

Inevitable Discovery
Even if the evidence in question is found to have been FoPT, suppression can be avoided if the prosecution establishes that the evidence would have ultimately been discovered anyway by lawful means.
Nix v. Williams
Limitations on the Exclusionary Rule

Standing
Only those who are actual victims of the alleged violation have "standing" to challenge it.

This prevents A from complaining that B's rights were violated.
Rakas
Limitations on the Exclusionary Rule

Rakas
Property rights and privacy rights are not the same.

There really is no standing doctrine anymore, it has merged into the 4th amendment doctrine (was this particular defendant's reasonable expectation of privacy intruded on?)

The passengers had no property interest in the car, and therefore had no expectation of privacy
stolen car
Limitations on the Exclusionary Rule

Rowlings
Even though ownership interest is asserted, if the defendant has no reasonable expectation of privacy in the PLACE searched, then they cannot challenge the violation.
drugs in purse
Limitations on the Exclusionary Rule

Olson
Overnight quests have a reasonable expectation of privacy
Overnight guest
Limitations on the Exclusionary Rule

Carter
No expectation of privacy when:
1) no prior connection to the apartment
2) no overnight use
3) transaction was unlawful
4) only a commericial relationship
Cocaine
Muniz
Routine booking questions are not covered by the 5th amendment.
Dionisi
Grand Jury subpoena is not an unreasonable seizure unde rthe 4th amendment
Mandujano
In a grand jury, yuo msut either testify truthfully or invoke your 5th amendment privilege.
Immunity
2 types:
1) Transactional Immunity. This gives you immunity for every even stemming from the transaction. Very broad

2) Use and Derivitive use Immunity. You cannot use the testimony to get to another source.
Exclusionary Rule and other proceedings
Does not apply to grand jury or habeas corpus actions or civil actions
The Exclusionary Rule

The Good Faith Exception
The reason for the exclusionary rule is to deter constitutional violations.

Evidence should not be excluded when the officers make reasonable mistakes re the legality of their warrants.
The Good Faith Exception

Leon
The warrant was obtained without an adequate showing of PC, however, the warrant appeared to be valid on it's face and the police officers relied upon the warrant in their search.

There is no way to deter "good faith" error, so what's the point of excluding the evidence.
The Good Faith Exception

Sheppard
The search warrant accidently said "drugs" instead of "murder weapon".

The evidence was not excluded.
The Good Faith Exception

Failure to specifiy
You can not take advantage of the good faith exception if you leave the description blank
The Good Faith Exception

When you cannot use it
1) where the police mislead (either deliberatley or in reckless disregard of the truth) the judge in their application for the warrant
2) the warrant was obviously invalid that no officer could have reasonably relied on it
3) the judge has abandoned his nuetral and detached posture
Impeachment Exception
You can use illegally obtained evidence for impeachment purposes
The Voluntariness Standard
A statement obtained by police that was not eh product of voluntary choice by the suspect could not be admitted at trial.
The Voluntariness Standard

Why must statements be voluntary?
1) coerced confessions are unreliable
2) we don't like the methods used to get the confessions
- Was the police behavior such that they overcame the suspect's will to resist?
The Voluntariness Standard

Was the suspect's will overcome?
Apply a TOC test based on these factors:
-suspect's peculiar characteristics and vulnerabilities
-age
-level of education
-mental stability
-state of sobriety
-familiarilty with the CJ process
-manner in which the interview was conducted
-length of detention
-duration and intensity of questioning
-use of trickery, deception, threats, promises of leniancy
The Voluntariness Standard

Coercive Police conduct
Coercive police conduct is a necesary predicate to a finding that a sonfession is not voluntary within the meaning of due process
The Voluntariness Standard

Suspects mental condition
Suppression is only appropriate where it can be demonstrated that the police exploited that condition by mean of coercion, and the testimony resulted from that exploitation.
The Voluntariness Standard

To challenge a confession
Show that:
1) the police subjected the suspect to coercive behavior
2) the conduct was sufficient to overcome the will of the suspect, thus inducing an involuntary statement
Miranda

6th Amendment
For a brief period the court used to deal the 6th amendment to exclude confessions

Escobedo stated that a violation of the 6th amendment occurs when:
1) When the investigation is focused on a specific person,
2) when the person asks for a lawyer and been denied,
3) and they are not advised of their rights.

Escobedo is not good law anymore
Miranda

Miranda and the 5th Amendment
The Court got it right and started excluding confessions based on the 5th Amendment priviledge against compelled self incrimination
Miranda
Must be given PRIOR to an interrogation if the suspect is in custody.

If he requests an attorney, questioning must cease immediatly.
Miranda

Policy
There is a balance between solving the crime and protecting individual rights.
Miranda

Key Elements
custody
interrogation
waiver
Miranda

When does a miranda violation occur?
The violation occurs only when they seek to introduce the statement at the criminal trial.
Miranda

Custody
Place is not dispositive, you can be in custody in your house, but not in the police station, or visa versa.

WHen there is no formal arrest, the determinitice question is whether a reaosnable person (given the TOC) would have felt at libery to terminate the interrogation and leave.
Miranda

Interrogation
Formal questioning or its functional equivalent
-any conduct which is designed to get a response.
Innis
Miranda

2 things required?
Custody

Interrogation
Miranda

Prison Informants
There must an obvious presence of police to trigger the "interrogation" requirement

The distinction between prison gray and police blue
Miranda

Muniz
Routine Booking questions are not Interrogation

Responses to scripted field sobriety tests are not Interrogation

But questions which are designed to illicite incriminating information do trigger Miranda
Miranda

Waiver
If a statement is obtained during a custodial interrogation, the state must prove that the suspect knowingly, intelligently, and voluntarily waived his priviledge against self-incrimination and right to counsel.
Miranda

No Valid Waiver
-Silence
Miranda

Knowing and Intelligent
State must show:
1) the suspect understood that he did not have to talk to the police
2) he appreciated the consequences of speaking to the police

**Burbine, you do not have to be informed that an attorney is waiting to speak to you.
Miranda

Waiver After Right to silence has been invoked
State must show:
1) right to silence (once invoked) was scrupulously honored
2) a knowing, intelligent, and voluntary waiver was made
Miranda

Waiver after Right to counsel has been invoked
Suspect can waive it IF the suspect HIMSELF initiates further communication with the police.

If the state wants to get the statement in they must show:
1) that counsel was made available, OR
2) the suspect himself initiated further communication, AND
3) a knowing, intelligent, and voluntary waiver occurred
Miranda

Invoking the Right to COunsel
"Maybe I should get a lawyer" was not a valid invocation in the right.
Miranda

Offense Specific?
NO, so if you invoke your Miranda rights in regard to one crime, you can be questioned about another crime.
Miranda

Initiation of further communication
"Well, what is going to happen to me now" was an initiation after the police said, you know that you have requested an attorney

But noraml requests for water, telephone, are not initiation of further contact.
Miranda

Right to Counsel
It is the right to have counsel present at the interrogation
Limitations on the scope of the Miranda Exclusionary Rule
You cannot use them in case in chief, but you can use them to impeach.

Miranda is not a shield against perjury
Miranda

Public Safety Exception
Where is the gun?

Where the officer's questions are reasonably prompted by a concern for public safety, he may engage in noncoercive questioning without complying with Miranda's dictates
Fruit of the Poisoness Tree and Miranda

Elstad
FoPT does not apply to Miranda

The original statements made because of the Miranda violation would be kept out, but any gained from the statements, etc. would be allowed in
Fruit of the Poisoness Tree and Miranda

Question First
This strategy will not be supported, and everything gained from this strategy will not be allowed in.

The court focused on the deliberateness of the police
Fruit of the Poisoness Tree and Miranda
While a statement obtained in violation of Miranda is not itself admissible, evidence (testimonial as well as tangible) derived from it is admissible
What is left of Miranda
A statement obtained in violation of Miranda may not be admitted except in the following situations:
1) the interrogation falls within the public safety exception
2) the response is used soley to impeach the defendant at trial

Evidence derived from the statement will be admissible as long as thte statement was not coerced
6th Amendment Right to Counsel
Guarentees an accused the assistance of counsel for his defense
6th Amendment Right to Counsel

Massiah
Once judicial proceedings have commenced, government efforts to "deliberately elicit" statemetns from him inteh absence of his attorney violate the 6th amendment
Both men pled were indicted, retained counsel, plead not guilty, released on bail.

Police wire one co-defendant
6th Amendment Right to Counsel

When does it attach?
Once judicial proceedings have been initiated
-Arraignment
-
6th Amendment Right to Counsel

Massiah Doctrine
Requirements
1) the government deliberately elicited incriminating statements from the accused in the absence of counsel
2) that this occurred after the initiation of judicial proceedings
6th Amendment Right to Counsel

Deliberately Elicit
Be careful, this is not exactely the same as "functional equivalent of questioning"

THe emphasis here is the deliberate or intentional nature of the police effort to gain information

This also looks to the state of mind of the officer (as opposed to the suspects susectabilities)
6th Amendment Right to Counsel

Passive Listener
An informant who is not a passive listener violates the 6th amendment right.
6th Amendment Right to Counsel

When does the Massiah Doctrine attact?
At the initiation of judicial proceedings
-indictment
-information
-arraignment
-preliminary hearing
Offense SPecific
The 6th Amendment is offense specific , it cannot be invoked once for all future prosecutions.
Waiver of the 6th amendment right to counsel
A waiver of the Miranda right to counsel can suffice

Basically, police initiated interrogations are never cool (here or inteh 5th amendment setting)
Statements obtained in violation of the 6th Amendment
They cannot be used in case in chief, but they can be used to impeach,

No "public safety" exception for 6th amendment