Find study materials for any course. Check these out:
Browse by school
Make your own
To login with Google, please enable popups
To login with Google, please enable popups
Don’t have an account?
To signup with Google, please enable popups
To signup with Google, please enable popups
Sign up withor
- Was there government action?
- If so, did it trigger a constitutionalright?
- Did government violate the constitutional right?
- Is YOUR D entitled to the remedy ofexclusion?
Fourth: protects from unreasonablesearches and seizures; requires that warrants be supported by PC.
Fifth: prohibits coerced confessions,unreliable identifications, and provides privlege against compelled self-incrimination
Sixth: provides a person formally accusedof a crime, the right ot assistance of counsel during all critical states ofadversarial process.
a. Silver Platter Doctrine: when privateparty on his own acquires evidence that gov’t later seeks to introduce incriminal prosecution, the fourth admt does NOT apply.
b. But,private party acts at direction of gov’t or pursuant to apolicy, then the search or seizure IS subject to fourth amdt.
* Note: security service at university games, etc, is NOT gov't action. Must be police, or police directing.
(1) Arrest (maximum seizure)
(2) Terry stop (brief investigatory seizure)
(1) When police use physical force to restrain;
(2) Police pull you offer or order you to stop
(3) Naturally confined location? (bus?)
TEST: Would reasonable person feel free to terminate encounter?
*Exam Tip: If police tell suspect tostop, and he runs, there is no seizure; has been no submission
(1) Takephysical control = seizure
(2) Justput something on property? Like beeper = no seizure.
Government intrusion into a reasonable expectation of privacy (REP).
*a. Exam Tip: Looking for something is notalways a search. Must have REP.
(A)That defendant manifests a subjectiveexpectation of privacy by making effort to shield from public. AND
(B)Expectation is objectively reasonable (one which society will recognize asobjectively reasonable; closing phone booth door = example).
· Handwriting and voice exemplars;
· Bank records;
· Pen registers;
· Header info on email from ISP (butcontents are);
· recorded conversations that suspect believes areprivate but other party in convo consented to rec.
· open fields (unoccupied areas not nearhome);
· naked eye observation of private propertyby air
· aerial photography of large fenced inareas
· discarded property (trash
PC v. Reasonable Suspicion
* Objective standard: subjective thoughts of police plays no role. *Runs both ways: D cannot challenge by arguing thatpolice officer had mistaken subjective thoughts.
PET (Informant's are like Police's PET)
(1) Police observation
(2) Eyewitness accounts
(3) Tip from confidential informant.
“Totality of Circumstances” test to assess reliability:
(1) Veracity of informant. (Track record)
(2) Basis of knowledge. (How does informant purport to know these things?)
(3) Did the tip provide insider information or access? ** Not necessary with reasonable suspicion
(4) Police investigation that corroboratesfacts in tip and establishes accuracy of predictions.
(5) Declaration against interest.
* Note: need not disclose name.
Established by: PHI (Like the fraternity!)
1. Police observations or eye witnessreports
2. Headlong flight from police in high crimearea
3. Informant’s tip, coupled with policeinvestigation, that corroborates the accuracy of informant’s predictions.
Note 2: But a tip that provides nothing more than existing information, does not establish even reasonable suspicion.
** Exam Tip: look for predictive information
Note 3: PO’ssubjective suspicion is NOT objectively reasonable, and therefore never sufficient to provide a cursoryseizure or search on its own. Must corroborate.
Probable cause is always required for an arrest.
PUBLIC: Suspect can be arrested based only on PC; don’t need a warrant.
Justification for PC: PET (again)
* Makes sense because no REP in public.)
HOME: Warrant is needed to make arrest in home, unless exception applies: (1) Consent, (2) hot pursuit, (3) evanescent evidence.
Brief investigatory seizure that requires reasonable suspicion that crime is afoot.
(1) Duration: time nec. to confirm/deny suspicion.
(2) Purpose: to investigate a“reasonable suspicion” that crime is about to, or has recently occurred
(3) Justification: PHI
Plain view requires THREE THINGS:
1. Police in lawful vantage (entered home legally)
2. Incriminating nature of item immediately apparent
3. Officer has lawful access to the point ofseizure. (Can get access without committing a search.)
--> Exam Note: No inadvertence requirement. (Can be hoping to find something.)
--> Exam Note 2: Important! Plain viewdoctrine is an exception to warrantless seizure,not search.
(1) Does D have *personal* 4th Amdt Right? (His house, Gov't Action, REP)
(2) Was there a valid warrant (warrant test, PC, may eventually need to apply good faith by police)
(3) If no warrant, was it a valid warrantless search?
Requires THREE things:
(1) Valid PC (Using PET, again).
(2) Describes with *particularity* the place to be searched or item/person to be seized.
(3) Detached & Neutral Magistrate
*Warrant always needed for arrest in house or full blown search, unless exception applies.
Searchesincident to a lawful arrest: SITLA
* Cursory sweep allowed if believe ambush
Automobileexception: need probable cause
Plainview: police must be legitimately on premise
Consent: must bevoluntary, intelligent, w/ authority
TerryStop: brief, RS that crime is afoot
TerryFrisk: RS armed and dangerous (“protective.”)
Hotpursuit and evanescent evidence:
Can search bodyof arrestee and area in immediate control (e.g. If home, only search lungingdistance).
Note 1: arrest must take place (not enoughto just have had a reason to arrest him);
Note 2: search must be contemporaneous w arrest
Note 3: no requirement to individuallyjustify SITLA
Note 4: ** if reasonable basis to believe ambush, can conduct a "protective sweep."
Note 5: if suspect has genuine access to get to car (rare),then scope of arrest includes all of car.
Can search car or any other self-propelledthing without a warrant; ** but you musthave PC**
(1) Warrant exception applies to allcontainers in vehicle.
(2) When police have probable cause, they mayseize vehicle and search it laterwithout getting a warrant.
(3) Permissible scope of search = dictated byPC. (Not like Sitla!). Can onlysearch where PC points you!
(4) Immobile vehicles: no warrant exception allowed
Gist: Police can conduct check point searchesto protect us from imminent public danger.
Note: Primary purpose must be immediate danger (sobriety, escaped inmate, terror; not general crime control)
(1) Based on formula, not up to individual officers.
(2) Narrowly tailored to addressspecific threat.
(3) Conducted in way that minimizes public anxiety.
(4) Must be a fixed check point (can't drive around)
(1) Police can seize any contraband that comes into plain view – even if contraband is unrelated to public safety concern.
(2) Custom officials may stop vehicles at permanent check point at or near border, with NO suspicion or cause, as an incident of national sovereignty.
** Exam Note: if the special needs checkpoint is NOT valid, then any evidence seized is tainted by stop.
Consent waives warrant and PC. But must be:
(1) Knowing and voluntary (no fake coerce, or threat)
* determined by "totality of circumstances"
(2) Proper scope: consenting party can limit
(3) Authority: se next slide on third parties
Note 1: Have an absolute right to refuse consent,or withdraw, or limit scope – but must clearlystate this.
Note 2: If consent wasobtained after an invalid seizure,then any evidence obtained is not valid.
(1) Person who has joint control of premisesmay consent, and any evidence seized in plain view may be used against theoccupants.
** Butonly applies to common areas! (I.e. padlocked room, husband’s private room –not valid.)
(2) Person must have (a) actual authority or (b) give police reason to believe they do (apparent authority)
** Landlord, motel owner, employer cannot consent.
** Present and objecting co-tenant TRUMPSconsent by the other co-tenant
Gist: Justified only by reasonable suspicion that the suspect is armed and dangerous.
** "Exclusive justification is protective."
(1) If in home, cursory sweep of home allowed to rule out ambush. (Terry Sweep.)
(2) If in automobile, if reasonable suspicion that person stopped will have immediate access to a weapon when getting back in the car, cops can take a “quick cursory look” in the car to rule that out.
(3) Limited to pat down of person (no more)
Hot pursuit: You can follow suspect into somewherewithout a warrant if you are in hot pursuit (Note: doesn’t have to be his home.)
(1) evidence is about to be destroyed,
(2) suspect is about to escape, or
(3) imminent danger to police or others in area (common with 911 calls)
(1) PC to believe that evidence will be easily destroyed or likely to disappear before warrant can be obtained; AND
(2) Procedure for seizing is reasonable and does not shock the conscience.
* Withdrawing blood from drunk driver; scraping nails of murder suspect = okay.
* Pummeling suspect’s stomach to induce vomiting to get drugs back out = not okay.
Searchesconducted for non-criminal purposes. Basically agency compliance inspection. * Justifiedbased on reasonable suspicion and not probable cause.*
1. Airport screening. (Can avoid being searchedby not flying.)
2. Border search.
a. ICE can conduct searches of people andproperty with no individualized suspicion or cause.
b. Includes int’l airport port of entry.
A D who has standing can prohibit gov’tfrom introducing evidence obtained as a direct or derivative result of anunreasonable search or seizure.
--> “Fruits of the Poisonous Tree Doctrine” –Any additional evidence derived frominitial illegality falls w/in scope ofexclusionary rule.
--- TEST: “Butfor” the original violation, police would not havefound this evidence; Therefore, it is connected to the initial poison tree.
If evidence is obtained from independentsource, that’s admissible.
[E.g. surveillance establishes PC to searchwarehouse for drugs; but before hand, cop illegally enters warehouse and seesdrugs; then comes back out and waits for warrant – therefore, would have gottenthis information anyway.]
If police would have inevitablydiscovered through independent source, you’re okay.
ExamTip: look to see if gears of independent discovery had already been set inmotion.
Turnson (a) combination of flagrancy of const. violation and (b) distance btwn violation and poison.
** Gist: Oftenasserted following confession obtained after unlawful arrest (if happensimmediately, attenuation exception doesn’t apply; but if lots of time takesplace, and lots of investigations, then this is okay.)
** Exam Tip: Look to see what made arrestillegal? (Did they have PC, but just no warrant; then probably okay; if theydidn’t even have PC, then not okay.)
Okayto use evidence, not to show guilt, but to impeach the D’s testimony.
** Ifpolice act in good faith reliance on a warrant that turns out to be bad, noexclusion (because no deterrence effect on police officers.)
** Inapplicablewhen: reasonable officer would know not to rely on the warrant.
(1) Policelie to get warrant.
(2) Warrant is very facially defective.
(2) Wherereasonable officer would know that magistrate is not N & D (i.e. magistrate is involved ininvestigation.)
Statementobtained by actual coercion is inadmissiblefor any purpose! (All others have exceptions, not this)
** Test:totality of circumstances**
(1) Age,health, education, intelligence, gender, cultural background,
(2) Locationduration and physical conditions
(3) Numberand demeanor of police.
(4) Deceptionand trickery (just one factor)
(5) Physical abuse, psychological, or threats of future harm. (FBI snitch; bad behavior imputed to gov't).
(1) Initiation of formaladversarial process triggers 6th right to counsel during all criticalstages of the adversarial process.
(a) Deliberate elicitation of statements(questioning);
(b) physical line ups;
(c) preliminary hearings, and
** D must make request unambiguously, and then questions must cease.
Only to D's that have been formally charged.
** Exam Tip: Distinguish suspect from D [When formally charged, *indicted* suspect becomes D
-- Suspect has no 6th Amdt right to trial.
-- D has 6th rights, but only with respect to what he’s being charged for!
If invoked, any statements obtained by police from D related to crime are inadmissible, unless:
(1) Lawyer is present, OR (2) Executed knowing and voluntary waiver of counsel. (No coercion)
Note 1: look for implied qs/leading/trickery, etc.
Note 2: D doesn’t have to know that it’s a govt officer! (Undercover cop in jail questions = inadmissible)
Note 3: It is offense specific. Only relates to the crime he’s actually been charged with.
Note 4: May implicate Miranda! Analyze separately.
(1) Have “real and substantial” fear thattestimony will result in self incrimination in the US!
(2) AND asserts privilege by refusing totestify.
* ExamTip: Applies only to testimony!(Can’t preclude blood, DNA, participation in a line up, or actions)
(3) Witness waives privlege by providingtestimony. *Presumethat you made a waiver of your privilege.
If witness invokes this privlege, gov’t can supplant! (I.e. grant immunity, then there’s no longer a real and substnaitl fear so sitness can be forced to testify).
** TWO TYPES OF IMMUNITY**
(1) Use or testimonial immunity: prohibits only the use of individual's own testimony against him.
(2) Transactional Immunity: extremely broad – prohibits any future prosecution of the witness for the transaction at issue.
Police cannot use statements obtained asa result of custody unless theycomply with Miranda warning and waiver requirement.
1. Right to remain silent
2. Anything can be used against you in acourt of law
3. Right to presence of an attorney
4. If cannot afford an attorney, one will beprovided for you
Formalarrest or functional equivalent” (any reasonable person in the suspect’ssituation would believe that freedom has been deprived to a degree analogous toformal arrest).
** Note: Terry stop is NOT custody! So itdoesn’t trigger Miranda. (So police may question individual without implicationMiranda; but, if then arrest the person, mustthen include Miranda warning.)
1. Direct questioning, OR functionalequivalent (words or actions that a reasonable officer would think will result in eliciting an incriminatingresponse.)
** Note: inverse perspective from custody, which is measured from suspect's perspective.
Exam Tip: If police are aware ofparticular vulnerability of suspect, that fact is imputed.
Exam Tip 2: Spontaneous or volunteeredstatements do not implicate Miranda! (Not interrogation!)
(1) Otherevidence gathered: Miranda violation doesnot result in exclusion of other evidence! (No poison tree applicability.)
(2) Identification info: age, dob, height
(3) Public safety: When primary purpose of questions is to protect police or public from imminent harm, don’t have to read Miranda rights= underwear bomber. (Look to see that the primary purpose is not to have confession, but get info to protect public).
(4) Impeachment:testimony at trial
(1) Knowing and voluntary
** Prosecution has "heavy burden" to prove this.
(2) Can be oral.
(3) Can NEVER presume waiver from silence!
* But, because silence doesn’t invoke Miranda, cops can keep asking for a waiver.
(4) Valid Miranda waiver is strong evidence that subsequent confession is voluntary; but not definitive. (Hypo where coercion happens after valid Miranda == violation of due process voluntary test.)
KEY: Unequivocal request for attorney or states she wishes to remain silent, ALL interrogation must cease immediately.
Change in interrogation: Don’t have to repeat Miranda after shortbreak of bc of change in police officers. (But if it’s a long break (overnight), thenyou have to.)
Depends on whichright invoked:
(1) Rightto silence? Police must “scrupulously honor." To resume: (1) police must allow significant time topass; (2) obtain a new Miranda waiver.
(2) Rightto council? Questions must stop immediately, and policecan’ come back, unless (1) attorney is present during re-institute process; and(2) they get a fresh waiver, or (3) police are permitted to re-approach 2wks after he has returned to normal environment (but must get a new Mirandawaiver.)
Youcan get a second confession that’s not tainted by the first if you redoall the Miranda process that you need, and the person waives, and thenconfesses again.
But, police can’temploy question first, warn later tactic: Get confession, then do Miranda, then getthem to confess again. (Court will treat this as one ongoing confession.)
** Look to whether it's in the MIDDLE of questioning.
(1) A voluntary statement or confession after MIranda warnings may STILL be inadmissible if fruit of illegal arrest, search of seizure.
b. If arrest is unreasonable bc no warrant,but had valid PC, this is okay if there’s a valid Miranda waiver SO LONG AS thestatement was not elicited immediately following arrest.
c. If arrest is unreasonable bc no PC, taintis more difficult – need release,and then voluntary confession afterwards).
** Not an adversarial hearing. Therefore:
(1) Target of investigation has no right to be present or right to assistance ofcouncil.
(2) No confrontation process.
(3) Pros no obligation to present exculp evidence
** Mirandawarnings are not required; But they may assert 5thA privilege against self incrimination.
§ Thepurpose of bail is to secure presence of accused at trial.
§ Thereis not a constitutional right to bail (but most states have it in their constitutions)
§ But,if it is necessary, it cannot be excessive.
NOTE: No right to counsel at this stage!
Pleaof guilty is “strongest form of proof known to law.”
· *D may be convicted on plea only.
· Plea must be voluntary and intelligent
· Bc plea waives a lot of important rights,court must determine that the waiver of these constitutional trial rights isintelligent and voluntary.
o Plead guilty for the deal, but not forpurpose of admitting to actual crime.
§ * Here, D can’t be convictedbased on plea only.
(1) ONLY remedy for violation ofconstitutional speedy trial right is dismissal with prejudice!
(2) Begins to run once D is accusedor arrested.
(3) Pretrialarrests/delays are not included.
(1) Length of delay (more than one year = inquiry). But, defense requested delays are excluded.
(2) Reason for delay. (no control?)
Note: D should demand speedy trial; failure to do so normally indicates D did not think delay prejudicial.
(3) Prejudice to defendant (**Required!)** Anxiety (least significant); oppressive pre-trial incarceration; Degradation of evidence leading to risk of inaccuracy (strongest)
If prosecution fails to disclose *favorable* and *material* info, violates due process clause.
- If D makes discovery request, any evidence that would help defense is favorable.
- If D fails to make discovery request; only evidence that is clearly exculpatory is favorable
Material: Evidence would have created a reasonable probability of a different outcome.
o Not required to disclose prior to plea bargaining.
o Destruction of evidence held by government violates due process only when D can show bad faith (negligence is not enough!)
(1) Right to counsel
(2) Right to a Jury
(3) Confrontation Clause
(4) Double Jeopardy
Applies to all critical stages of proceedings.
-- Absent waiver, D may not be imprisoned for any offense, unless he was represented by council!
-- Gov’t must provide council to indigent defendants:
§ Note: based on actual result: any crime that you’ve been charged that results in at least a day in prison.
§ Right to council = right to effective council.
Hard to prevail on IAC claim; D seeking new trial must prove:
(1) that council was ineffective – fell below minimum standard of lawyer conduct. and
(2) that had the lawyer been effective, it would have created a reasonable probability of a different outcome.
§ Ifyou can show that group was systematicallyexcluded, you can get a new trial.
§ Note:jury need not be representative; only the poolfrom which it’s drawn.
§ Note2: preemptive challenges to get rid of jurors based on race violates EPC. (Mustoffer race or gender neutral basis for the challenge.)
GIST: Dcan confront witness and evidence against him. Triggered only by testimonial evidence.
Testimonial= statements made in a context where witness would expect statement to be usedin criminal trial.
§ Examtip: if witness is explaining to police what’shappening in 911 call, that is not testimonialin nature; but if telling someone something that has already happened, that’s testimonial.
§ Confrontation is satisfied if you subject them to adversarial testing – under oath, subject to cross! (Right is satisfied just with opportunity; don’t need to actually cross examine.)
§ If offered as hearsy, that’s rejected unless D had opportunity to cross it at some prior court experience.
§ ExamTip: Stuff from a grand jury testimony was not subject to adversarial testing.(Under oath is not enough!).
5th Amdt – can’t be put twicein jeopardy for same crime. Must establish:
§ (1) had been in jeopardy for same offense by (2) same sovereign previously.
§ Nonjury trial = jeopardy attaches when first witness is sworn and courtbegins to hear evidence.
§ Jurytrial = jeopardy attaches when jury is sworn and empanelled. (Basically, must start trial!)
** When grand jury fails to indict on charge prior to jeopardyattachment, charge can be brought again!
Sign up for free and study better.
Get started today!