The Exclusionary Rule

Prohibits the introduction of evidence obtained in violation of a Ds constitutional rights in a criminal trial.

Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal government conduct is excludable against D. Arises when illegal police action leads to evidence Exceptions evidence illegally obtained is admissible if the government can break the chain between the original illegal conduct and the illegally seized evidence. There are three ways to do this:1. Independent source govt. has an independent source for obtaining the evidence (i.e. independent of the original illegality)2. Inevitable discovery govt. would have discovered the illegally derived evidence even without the illegal conduct.3. Intervening acts of free will by D after the initial illegality, D led police to the evidence by his own free will.

Remedy for exclusionary rule violation harmless error review For admission of illegally seized evidence to be upheld on appeal, the government must show that it was harmless BRD.

Limitations on The Exclusionary Rule

The ER applies ONLY to searches in violation of a federal statute or the U.S. Constitution.

Exclusionary rule does not apply: In grand jury proceedings, civil proceedings, parole hearings, or administrative cases. For violations of the knock and announce rule in executing search warrants. To evidence seized as a result of Miranda violations.

Excluded evidence and impeachment: Confessions resulting from Miranda violations or illegally obtained evidence may be used to impeach Ds testimony a trial (only Ds testimony, not all testimony).

Govt. good-faith defenses to the exclusionary rule Illegally obtained evidence will not be excluded if the govt. demonstrates that it relied in good faith on either:1. A reasonably relied upon but defective search warrant2. A judicial opinion or statute that was later changed or declared invalid

The Fourth Amendment

The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon PC, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment applies to both searches and seizures of property, and to arrests of persons.

Arrests

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation.

Probable cause is always required for any valid arrest Probable cause: trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime.

Warrants are rarely required for arrests Unless an arrest occurs in the arrestees own home, the govt. does not need a warrant to make an arrest. A warrant is not required for an emergency arrest occurring in the arrestees home.

Detentions

A governmental seizure of a person that is lesser than an arrest.

Common govt. detentions: Stop and frisk Requires R&A suspicion. Automobile stops Requires R&A suspicion. Stationhouse detention PC is required to compel a person to enter a govt. location for fingerprinting, questioning, etc. Detention to obtain a search warrant Requires PC If police have PC to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant. Purpose MUST be to prevent her from destroying the contraband evidence. Detention of occupants of a premises If police have a valid warrant to search a given premises, they may detain its occupants for the duration of the proper search.

Determining The Validity of an Evidentiary Search or Seizure

Searches for, and seizures of, evidence by the govt. must be reasonable under the 4th Am. This requires a valid search warrant unless one of six exceptions applies.

Determining the reasonableness of a search or seizure:1. Is there govt. conduct constituting a search or seizure? The 4th Am. Only applies to govt.s direct or authorized conduct; it offers no protection against conduct by private individuals.2. Does D have standing? D must have a REOP in the thing or place to be searched.3. Is there a valid search warrant?4. If there is no valid search warrant, was there a valid exception to the search warrant requirement?

Exceptions to the search warrant requirement:1. Search incident to arrest2. Plain view search3. Automobile search4. Valid consent to search5. Exigent circumstances6. Stop & frisk

Reasonable Expectation of Privacy

The 4th Am. only applies if a person has a REOP regarding the thing or place searched and/or the items seized Standing to challenge a govt. search requires a REOP REOP is determined by the TOC

No REOP for inherently public things (EXP) handwriting, voice, location, odors, bank records, things viewable from public place, garbage placed outside

Automatic standing REOP always exists if D either:1. Owns, has a right to possess, or lives in the premises to be searched, or2. Is an overnight guest of the premises to be searched

Requirements for a Valid Search Warrant

Unless an exception applies, the govt. must have a properly executed warrant to conduct a search

Requirements for a valid warrant:1) Based on PC Usually a police affidavit demonstrating PC that the search or seizure will produce evidence Affidavits: Must contain facts showing PC May include information from anonymous sources (i.e. informants) If an affidavit is based on materially false information, the warrant is invalid2) Precise on its face The warrant must describe, with reasonable precision, the place to be searched and/or items to be seized.3) Issued by a neutral and detached magistrate If this requirement is violated, evidence seized pursuant to the invalid warrant cannot be admitted under the good faith reliance exception.

Places searchable pursuant to a warrant almost anywhere Warrants can be issued for any location where the govt. has PC to believe there is evidence to be seized.

Execution of Search Warrants

Timing police must execute a search warrant without unreasonable delay after it is issued

Knock and announce police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord Exception knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation

Scope of search police can seize any evidence of criminal activity they discover, even if not included in the warrant Basis is the plain view exception to search warrants Police can detain people found on the searched premises But police CANNOT search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists

Valid Warrantless Searches

A warrantless search is unconstitutional unless it fails under a valid exception to the search warrant requirement

Exceptions to the search warrant requirement:1) Search incident to lawful arrest2) Plain view3) Consent4) Automobile exception5) Stop & frisk/Terry stop6) Exigent circumstances Hot pursuit Emergency Evanescent evidence

Search Incident to Lawful Arrest

Police may, without a warrant, search a lawfully arrested person and his immediate surrounding area Requirements:1)Arrest must be lawful2)Search must be contemporaneous with the arrest3)Search must be limited to the area within the suspects immediate reach or immediate movement (i.e. where he may be able to obtain weapons or destroy evidence)Protective sweeps police may make protective sweeps of an area for their own safety or if they have reasonable belief that accomplices may be presentInventory search police may make an inventory search of an arrestees belongings, i.e. they can take items to the police station to be searchedAutomobiles if an arrestee is in an automobile, police may search the passenger compartment, including the glove box Police cannot search the trunk without probable cause or consent Police cannot search the passenger compartment if arrestee is secured, away from the vehicle

Plain View Searches

Police may search from any place where they are legitimately present when viewing (i.e. when conducting the search)Seizure based on plain view police may make a warrantless seizure based on evidence in plain view if:1)They are legitimately on the premises from which they viewed the evidence to be seized2)Evidence of criminal activity or contraband is immediately apparent3)They have probable cause to believe that plainly viewed evidence is contraband or relates to a crimeScope & limitations of plain view searches Plain view includes anything viewable from land or public property Items viewable only through binoculars are still within plain view Police cannot use technological devices to view evidence that may give rise to a plain view search (e.g., infrared scanners capable of viewing through walls) Plain smell included within plain view If police smell something giving rise to probable cause from a place where they are legitimately present, they can search that item

Consent to Search

Requirements for valid consent:1)Voluntarily and intelligently made Police cannot lie or deceive to obtain consent Police have no obligation to inform suspects that they have a right to refuse consent2)Person giving consent has authority to consent Must be reasonably apparent that the consenting party has the authority to consentScope of consent can be limited by the consenting party Violation of the allowed scope renders the entire search non-consentingThird-party consent allowed if there is authority to consent Where multiple people have rights to property (via ownership, authorized use or occupancy), any single one can consent to the search of any area where they have authority to consent A residents right to consent trumps a non-resident E.g., if both a tenant and landlord are present, the tenants refusal trumps the landlords consent Scope of consent is dictated by the person present with highest authority to consent Refusal trumps consent no consent if two persons with equal right to possession disagree on consent

Automobile Search Exception

If probable cause exists, police may search an entire vehicle (including the trunk) and anything inside it that may contain evidence of suspected criminality Requirements Police must have probable cause to search the vehicle Probable cause must arise before the search begins I.e. probable cause must arise based on something between the vehicle stop and the search Scope of permissible search Police may search passengers and their belongings Packages & containers in the vehicle police may open any package, container, or item of luggage that they reasonably believe may contain evidence relating to the reason they searched the vehicle Police may also tow the vehicle and search such containers at a later time

Automobile Stops & Police Checkpoints

Automobile stop reasonable suspicion required To stop or pull over a vehicle, police must have reasonable suspicion that a law has been violated Pretextual stops actual motive is irrelevant; as long as police have reasonable suspicion of some legal violation, they can have any other actual motive for stopping a car All passengers have standing to challenge the stop

Accompanying searches police may search: The passenger compartment and passengers for weapons Does not include the trunk Any open containers that could reasonably contain evidence supporting the reasonable suspicion for the stop (does not include closed, locked containers) The entire car may be searched if probable cause arises, in accordance with the automobile search exceptionPolice checkpoints must relate to a vehicle-specific purpose E.g., DUI checkpoints are okay because they relate to road safety, but drug checkpoints are insufficiently related to driving, and are thus unconstitutional Vehicles must be stopped using some neutral and articulable standard

Stop & Frisk

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activityAllowable scope of stop & frisk: Length detention must be no longer than necessary to verify the suspicion Frisk if police have reasonable suspicion that the person is armed or dangerous, they may conduct a protective frisk for weapons Plain feel if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item Officers cannot manipulate the item to develop reasonable belief it must be plain touch only Evidence validly seized is admissibleStop vs. arrest A stop is a brief detention, not an arrest But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or friskNote Stop & Frisk is often called a Terry-type stop

Exigent Circumstances

Police can seize or search evidence in exigent circumstances: 1. Hot pursuit While in active pursuit of a fleeing felon, police can search for anything relating to the pursuit or for their own protection2. Evanescent evidence Police can search or seize evidence that would be at risk of disappearing if police were required to secure a warrant E.g., drugs which may be discarded, DNA evidence which may not last3. Emergency Police can search or seize evidence if justified by emergency circumstances (e.g., a bomb threat or act of terrorism)

Other Fourth Amendment Searches:

Administrative searches Govt. agencies may conduct routine searches or inspections E.g., building code inspections, food safety inspections, searches of businesses in highly regulated industries, airline passenger searches, parolee searches, etc. A warrant is required for inspections of private residences or commercial buildings Requires less particularity than standard warrants A general and neutral enforcement plan for the searches will suffice to validate the warrantPublic school searches Warrantless searches are permitted for drug tests of public school students who participate in extracurricular activities

Border searches At the border, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a border at Denver International Airport)Detentions reasonable suspicion required Officials may detain a traveler at the border if they have reasonable suspicion she is smuggling contrabandInternational mail Officials can open and inspect international mail if they have reasonable suspicion it contains contrabandImmigration Officials may raid a business to determine citizenship status of its employees

Electronic Surveillance: Wiretapping and Eavesdropping

Electronic surveillance (i.e. wiretapping or eavesdropping) is a search under the 4th Am. and requires a warrantWarrant requirements for electronic surveillance:1)Probable cause2)Warrant names the suspects subject to surveillance3)Warrant describes with particularity the subject of conversations that can be listened to4)Surveillance is limited to short periods of time5)Wiretap terminates when the desired information is obtainedNote all speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation Therefore, police do not need a warrant if they get someone to wear a wire and talk to the suspect They do need a warrant to tap the suspects phoneFOURTH AMENDMENT CHECKLIST

In criminal prosecutions, Fourth Amendment issues arise in an evidentiary context. That is, the question that normally must be considered is this: Should a particular tangible object or oral communication, secured by government agents, and which the prosecutor intends to introduce at trial against the defendant (D) in the governments case-in-chief, be excluded because it was obtained in violation of the Fourth Amendment? Answering this question is almost never simple. Nor is there any foolproof way to go about determining the answer. Nonetheless, the following checklist of questions may help clarify matters. It may be useful to return to it multiple times as you proceed through the Fourth Amendment thicket. In answering the evidentiary question stated above, one should focus on the police activity that resulted in discovery of the particular item evidence at issue, and consider as many of the following questions as are relevant. If there are multiple items of evidence to consider, it is preferable to consider them in chronological order, i.e., in the order in which the evidence was secured by the police. 1. Does D have standing to raise a Fourth Amendment challenge to the specific item of evidence in question? If the answer is no, the evidence is admissible, insofar as the Fourth Amendment is concerned. If the answer is yes, the analysis continues. In a multi-defendant criminal prosecution, this question must be asked separately as to each defendant. One person may have standing to raise the claim, while another does not. 2. Is D among the people protected by the Fourth Amendment? If the answer is yes, proceed to the next question. 3. Did the police activity in question implicate a person, house, paper, or effect? If the answer to this question is no, which is rare, the Fourth Amendment does not apply. 4. Did the police activity constitute a search and/or seizure? These words have specialized meanings in Fourth Amendment jurisprudence. If the police activity in question does not constitute either a search or seizure, the Fourth Amendment does not apply. If the activity constitutes either a search or seizure, the analysis continues. 5. Was the search and/or seizure reasonable or unreasonable? This is the ultimate substantive issue: it indicates whether the Fourth Amendment was violated. Nonetheless, one cannot answer this question without considering various sub-issues, including the following: A. Did the police have adequate grounds to conduct the search and/or seizure? For searches and seizures, the police traditionally must have probable cause, a constitutional term of art. Many searches and seizures, however, are permitted on a lesser ground, called reasonable suspicion. And, the Supreme Court has approved suspicion-free searches and/or seizures in a few cases. In light of the different applicable standards, one must look at the particular search and/or seizure in question, and determine whether it is the type for which probable cause is required (many cases), whether it is the type for which reasonable suspicion is sufficient (many cases), or whether this is one of the few cases in which the police may act at random. Then, assuming some level of cause is required, a lawyer must determine whether the police possessed the requisite probable cause or reasonable suspicion, as the case may be. If the police did not have sufficient grounds, the search or seizure was unreasonable, in violation of the Fourth Amendment. B. Even if the police acted on the basis of probable cause, did the police obtain a search warrant or arrest warrant, as the case may be? If the answer to question is yes, a number of sub-issues arise: (I) Did the police obtain the warrant in a proper manner?; (ii) Was the party issuing the warrant a neutral and detached magistrate?; (iii) Was the warrant in proper form, e.g., does it satisfy the constitutional particularity requirement?; and (iv) Did the police execute the warrant properly? If the police did not secure a warrant, the sub-question is: Did the police have a valid reason for not obtaining the warrant? As will be explained in the Text, arrest warrants are constitutionally required only in very limited circumstances. Search warrants are required more often, but many exceptions to a so-called search warrant requirement exist. If no valid exception existed, however, a warrantless search or seizure would be considered unreasonable and, therefore, in violation of the Fourth Amendment. 6. Assuming that the preceding questions justify the conclusion that the police conducted an unreasonable search or seizure in violation of Ds rights, the Fourth Amendment exclusionary rule comes into potential play as to the particular item of evidence in question. However, there are still questions to be asked and answered: A. Does the exclusionary rule apply in the particular situation? In light of relatively recent case law, the scope of the exclusionary rule has been limited. There are certain categories of unconstitutional searches or seizures to which the exclusionary does not apply; as well, the degree of culpability of the police officers who violated the Fourth Amendment must also be considered. B. Assuming the exclusionary rule applies, then the evidence obtained in direct violation of the Fourth Amendment is inadmissible. Then ask: Does the government seek to introduce any other evidence that is a fruit of the poisonous tree that is, evidence causally linked to the initial illegality? If the answer is yes, these fruits are also inadmissible, subject to two limiting doctrines, explained elsewhere: (i) the inevitable-discovery doctrine; and (ii) the attenuated-connection doctrine.

Fifth Amendment Privilege Against Compelled Self-Incrimination

Under the 5th Am. any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself Privilege is only available for compelled testimonial or communicative evidence Testimonial = verbal or otherwise communicative evidence Lineups and physical evidence not testimonial Compelled = elicited or induced Evidence produced from Ds free will is not compelled (e.g., Ds diary is not compelled) Lie detector tests, custodial interrogation, etc. are compelled 5th Am. privilege appliesPrivilege does not apply if:1)Grant of immunity govt. can grant immunity from prosecution for self-incriminating testimony2)Incrimination is not possible e.g., the statute of limitations has run3)Extinguished by waiver D waives the privilegeNote at trial, the prosecution cannot comment on Ds silence or failure to testify

Miranda Rights

A person in custody must be adequately informed of his Miranda rights prior to interrogation in order for his subsequent statements to be admissibleCustodial interrogation required Miranda only applies when the accused is in custody and interrogated Custody the accused is not free to leave Interrogation any statements by police likely to elicit an incriminating response (i.e. any conduct police know or should know will get a damaging response from the accused) Unsolicited statements are not protected Note routine questioning, e.g., during booking or a probation interview, is not considered interrogation Public safety exception police may interrogate suspects without giving Miranda warnings if necessary due to concerns for public safety (e.g., D has info about a bomb that could go off in public)Miranda warnings police must inform the accused that he has:1)A right to remain silent2)Anything said can be used against him3)He has a right to the presence of an attorney and 4)One will be appointed if he cannot afford one Substantial compliance in reading warnings is sufficient Failure to give warnings only implicates the 5th Am., not the 6th Am.

Invoking & Waiving Miranda Rights

An accused may terminate an interrogation at any time by invoking his right to remain silent or requesting counselInvoking the right to remain silent after the accused invokes the right, police must cease all questions Only the accused can re-initiate dialogue Police may later question the accused regarding unrelated crimesInvoking 5th Am. right to counsel all questions must cease, on any topic, until counsel is provided and present Note this is different than the 6th Am. right to counsel, which is offense-specific and does not attach until charges have been filed If accused initiates the communication, interrogation is allowedWaiving Miranda rights waiver must be:1)Knowing2)Voluntary must be a clear verbal waiver3)Intelligently made Burden is on P to prove waiver was valid

Sixth Amendment Right to Counsel

Once the 6th Am. right to counsel attaches, police may not deliberately elicit incriminating statements outside the presence of Ds counsel Application the right attaches once charges have been filed Applies to all subsequent stages of the judicial proceeding Scope the right is offense-specific Police can question D about any other crime without violating Ds 6th Am. rights5th vs. 6th Am. Right to Counsel 5th Am. right to counsel Not automatic the accused must invoke the right by requesting the presence of counsel Request must be unambiguous Applies to any custodial interrogation Not offense-specific once invoked, police must stop questioning on all subjects Police can re-initiate questioning after a break and D must re-invoke the right by again requesting an attorney 6th Am. right to counsel Automatic attaches once charges have been filed Offense-specific Police can question D about any other crimes

Pretrial Lineups & Showups

A suspect has a right to counsel at any post-charge, in-person lineup or showup Does not apply to non-live identification procedures (e.g., photographic lineups or fingerprinting) Lineup witness is shown several possible suspects at once Showup witness is asked to identify a single suspectRemedy for violation D may move to suppress any subsequent in-trial identifications by the witness Note remedy for a violation is rare because govt. can often prove the identifying witness has an independent source of identification to overcome the exclusionary rule

Right to Confront Witnesses

The 6th Am. gives Ds the right to confront adverse witnessesConfrontation D has a right to have adverse witnesses testify in-person and subject to cross-examination; not an absolute right In-person testimony is not required if:1. Exclusion is necessary for public policy, and 2. Reliability of the testimony is otherwise assured D can be removed from court for disruptive behaviorCo-defendant confessions the confession of a non-testifying co-D against D at a joint trial violates the 6th Am. Does not apply to bench trials Exceptions the confession of a non-testifying co-D is admissible if: Ds have separate trials The confession is edited so that all portions referring to the co-D are eliminated The confession is used to rebut Ds claim that his confession was obtained coercivelyHearsay prior testimonial statements of unavailable witnesses are only admissible if D had the opportunity to cross-examine the declarant when the statement was made