THE RULE for a FOURTH AMENDMENT ANALYSIS The Fourth Amendment protects the right of citizens to be secure in their

persons, homes, papers and effects against unreasonable searches and seizures. This standard has been judicially interpreted to impose the requirement that searches not be conducted without a warrant. Absent a valid warrant, however, a search may still be reasonable-thus permissible-if one of the exceptions to the warrant requirement applies. Further, seizures of persons (arrests) may not be made without probable cause or without a warrant if made in ones home.

WAS THERE A SEIZURE? Seizure of a person O/R: A seizure occurs when an officer, by (1) means of physical force OR (2) a show of authority AND submission to that show of authority restrains the liberty of a citizen. S/R1: A person is seized within the 4th A if in view of all of the circumstances surrounding the incident, a reasonable person would have believed he or she was not free to leave. (Mendenhall). Seizure of property O/R: A seizure of property is the meaningful interference with a persons possessory interest in the property. Seizure of property may include the following items: contraband; fruits; instrumentalities; mere evidence. S/R1: Contraband is evidence that may not be lawfully possessed by a private party. S/R2: Fruits of a crime are items obtained as a result of criminal activity. S/R3: Instrumentalities are items used in the commission of an offense, for example, a weapon or an automobile. S/R4: Mere evidence is an item of value to the police solely because it will help in the apprehension or conviction of a person for an offense, to include items such as blood stained clothing. IF THERE WAS A SEIZURE, AT WHAT POINT DID THE SEIZURE OCCUR/WAS THE SEIZURE JUSTIFIED? R: When an officer reasonably suspects a person of engaging in criminal activity, he may briefly stop and question the person to confirm or dispel his suspicions. (Terry). S/R: Reasonable suspicion that criminal activity is afoot occurs when the officer has specific, articulable facts, which taken together with rational inferences based upon the officers knowledge and experience, reasonably warrant the intrusion. R: A de facto arrest occurs when the officers conduct is more intrusive than necessary for an investigative stop. 1

S/R1: In considering the reasonableness of the seizure (i.e. has the suspect been arrested in fact), the Court will consider (a) the duration of the detention and (b) whether the officer used the least intrusive means reasonably available to verify or dispel the officers suspicion in a short period of time. The Court, however, has refused to implement a time period.

S/R: Probable cause to arrest exists where facts and circumstances within the officers knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. WAS THERE A SEARCH? Was there a warrant? R: Searches conducted without a warrant are per se unreasonable. S/R: A warrant is required to preserve searches and seizures that are protected under the 4th Amendment. R: Probable cause to search exists where the facts and circumstances within the police officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence subject to seizure will be found in the place to be searched. S/R: Such information may be gathered directly, through hearsay, from other police officers, from victims or from informants (known or confidential). Confidential Informants R: The Court will make a totality of the circumstances analysis when considering the veracity and basis of knowledge of a confidential informant, and whether or not the tip was accompanied by indicia of reliability sufficient to make the officers suspicions reasonable. (Gates). [consider prediction of future activities and coorboration] Warrant Requirements R: In order to obtain a valid warrant, information must be collected which gives the officials probable cause to believe a person and/or item sought after is located at a particular location. A valid warrant requires that law enforcement (a) made an oath or affirmation (b) before a neutral, detached magistrate (c) detailing with particularity the persons and/or places to be searched and the persons and/or items to be seized. S/R: The magistrate making a determination on a warrant must make a practical common sense decision given all the circumstances set forth in the affidavit to include veracity and basis of knowledge to determine whether or not there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Warrant Execution R: The warrant must be executed properly, generally with 10 days of issuance (to prevent stale PC) and during the hours of 6a-9p, absent a valid exception. S/R: When the warrant is executed on a private residence, the K &A requirement states that law enforcement must K & A their presence in order to deter violence and lessen the level of intrusion on the home where the warrant is to be served. Law enforcement must wait a reasonable period of time prior to dispensing with the K & A requirement. Exceptions to the K & A requirement include a threat of violence, when evidence may be destroyed or when law enforcement are in hot pursuit of a suspect.

WARRANT LATER INVALIDATED R: Evidence obtained pursuant to a search warrant later determined to be invalid is not subject to the exclusionary rule if an objective, reasonably well-trained officer would have believed the warrant was valid. Good Faith Exception to Later Invalidated Warrant S/R: A police officer will have no reasonable grounds to rely on a warrant when (1) he misled the judge (2) the judge wholly abandons his neutral/detached position or (3) where the warrant is so obviously deficient that no police officer could reasonably rely on it either because (a) the warrant is based on an affidavit so lacking in the indicia of probable cause that it is per se unreasonable or (b) the warrant itself fails to particularize the place to be searched and the items to be seized. (Leon). Scope of the Exclusionary Rule R: When the exclusionary rule applies, it extends not only to direct evidence but also to secondary evidence, often referred to as the Fruit of the Poisonous Tree. Fruit of the Poisonous Tree (FOPT) [Can also be warrantless search] R: FOPT is a rule that states that evidence derived from an illegal search, arrest or interrogation is inadmissible because the evidence was tainted by the evidence. Suppression R: Suppression is appropriate if police officers (a) were dishonest or reckless in preparing their affidavit OR (b) could not have harbored an objectively reasonable belief in the existence of probable cause Analysis FOPT 3

Step 1: Step 2: Step 3: Step 4:

Identify the Constitutional violation. The fruit is the evidence the government seeks to introduce. Identify whether or not there is a causal link between the fruit and the tree. If the fruit came from the tree, has the poison dissipated?

Independent Source Doctrine R: The Independent Source Doctrine applies to evidence initially discovered during OR as a consequence of an unlawful search but later obtained independently from activities untainted by the initial illegality. S/R: As a matter of policy, the exclusionary rule would place the police officers and/or society not in the same position if no illegality had occurred, but in a worse one. S/R: The decision to seek the subsequent warrant must be prompted regardless of what was seen during the initial entry or the second search would be a fruit of the original illegality.

Inevitable Discovery Doctrine R: The Inevitable Discovery Doctrine states that if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the deterrence rationale of the exclusionary rule has little basis and the evidence should be received. Attenuation Doctrine R: The Attenuation Doctrine states that evidence obtained by illegal means may nonetheless be admissible if the connection between the evidence and the illegal means is sufficiently attenuated or remote. S/R: The Court will consider, under a totality of the circumstances analysis, the (1) length of time that has elapsed between the initial illegality and the seizure of the fruit in question and (2) the flagrancy of the initial misconduct (bad faith violations take longer to dissipate) and (3) the existence or absence of intervening causes of the seizure of the fruit and (4) the presence or absence of an act of free will by the defendant resulting in the seizure of the fruit (i.e. the free will of dissipated the taint). (Brown v. Illinois).

S/R Attenuation: Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee (K & A) that has been violated would not be served by suppression. (Protected Interest Limitation Hudson v. Michigan).

Warrant ExceptionsSeizure 4

Plain View R: The plain view doctrine permits an officer to make a warrantless seizure of incriminating items they come upon while otherwise engaged in a lawful arrest, entry or search. Thus, to seize an item in plain view, the initial search must be valid, pursuant to a (a) search warrant OR (b) a warrant exception R: An officer must observe the item in question from a (1) lawful vantage point and (2) have a right to physically access the item before seized AND (3) the nature of the object is subject to seizure is immediately apparent when the officer observes the item. Plain Touch Doctrine R: Police may seize contraband detected through the sense of touch during a protective patdown. (Dickerson).

WARRANTLESS SEARCHES R: Warrantless searches are per se unreasonable. R: If a warrant was required to conduct the search and was not obtained prior to the search, the evidence may be excluded under the exclusionary rule unless law enforcement have a valid warrant exception or a valid exigency. Exclusionary Rule R: The exclusionary rule prohibits the introduction of evidence obtained in violation of a defendants 4th Amendment rights. The exclusionary rule exists to deter the government and/or police from violating a persons constitutional rights and serves as one remedy for such a deprivation. Policy: The exclusionary rule is the remedy for 4th Amendment violations and exists to deter the police from violating 4th Amendment rights. SEARCH R: In determining whether or not a search occurred, the nature of the place observed, the steps taken to enhance the privacy against intrusion, the degree of intrusion, the degree to which the intrusion requires a physical presence on the land, state of the art technology and the nature of the activities being observed will be considered. S/R: What a person knowingly exposes to the public, even in his own home, is not protected by the 4th Amendment.

S/R: Individuals who convey information to third parties assume the risk of disclosure to the government (False Friends, White). S/R: What a person preserves to keep private in an area accessible to the public may be constitutionally protected, based upon the reasonable expectation of privacy. Reasonable Expectation of Privacy R: A person has a reasonable expectation of privacy when (1) the person demonstrates an actual, subjective expectation of privacy AND (2) it is one society is prepared to recognize as reasonable. (Katz). Nature of the place searched/observed Curtilage R: Curtilage is the area immediately surrounding the home. Whether or not an area is deemed curtilage will depend on (1) the proximity of the area to the home AND (2) the intimate nature of that area AND (3) the steps taken to protect the privacy of that area. S/R: A warrantless, physical entry onto the curtilage places the officer at an unlawful vantage point, invalidating his subsequent observations. S/R: Physical entry onto curtilage is distinguished from mere surveillance of the home and its curtilage while located at a lawful vantage point outside the curtilage. Residence R: A persons private residence is afforded the greatest 4th Amendment protection (mans home=castle). Open Field R: An open field is generally not protected by the 4th Amendment, even if the open field is on privacy property and/or accompanied by No Trespassing signs. S/R: When determining whether an area is curtilage and thus within the protection of the home, the court will look to (1) the proximity of the area to the home AND (2) whether the area is within an enclosure surrounding the home AND (3) the nature of the uses to which the area is put AND (4) the steps taken to protect the area from observation. (Dunn). Degree to which surveillance requires physical intrusion on the land R: Aerial: The lawfulness of an aerial search will consider from what vantage point activities were observed: were the officers conducting the search from a lawful point?

R: Sense enhancing technology: (1) Obtaining by sense enhancing technology (2) any information regarding the interior of the home (3) that could not otherwise be obtained without a physical intrusion into a constitutionally protected area constitutes a search (4) at least where the sense enhancing technology is not in general public use. (Kyllo). Any sense enhancing technology that provides information about the interior of a home that cannot be otherwise obtained without a physical intrusion when such technology is not in general public use constitutes a search. (Kyllo). Dog Sniffs R: Dog Sniffs: Dog sniffs are less intrusive than a typical search, does not require opening of luggage/containers, and does not expose noncontraband items to the public; thus, because it is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure that it does not constitute a search within the meaning of the 4th Amendment.

Warrant ExceptionsSearch Exigent Circumstances R: When a recognized exigency exists, a police officer may enter a home without a warrant, but the police officer still needs probable cause to believe a particular exigency exists. S/R: Recognized exigencies include hot pursuit; imminent destruction of evidence; prevention of suspects escape; risk of police or other individuals AND the community caretaking function. Consent R: Validly obtained consent justifies an officer in conducting a warrantless search, with or without probable cause. S/R: To be valid, consent must be (1) granted voluntarily AND (2) obtained with real or apparent authority to give consent AND (3) the scope of the search conducted must not exceed the consent granted. S/R [Apparent Authority]: The police officer must have a reasonable belief that the individual consenting to the search has the common authority to do so. (Rodriguez). S/R [3rd Party Consent]: Even if these conditions are satisfied, permission to conduct the search of a residence does not give police the authority to do so if another person, with common authority, is (1) physically present AND (2) expressly refuses to consent to the search.

SILA and the Home R: A search incident to a lawful arrest must be contemporaneous in time and place with the arrest as long as the arrest was made on probable cause. The right to search the person and the persons grabbing area are automatic when the arrest is made within the home. S/R: A full search of the person and grabbing area is automatic for all crimes of arrest. The officer may search for both weapons and destructible evidence. To seize an item, the police officer must have probable cause to believe the item constitutes seizable evidence. The police officer has the automatic right to open containers found on the person. (Robinson). S/R: The police may search the person and his grabbing area within his home where he might reach weapons or destroy evidence. The grabbing area in the home is limited to the area within which the arrestee might gain possession of a weapon or destructible evidence. (Chimel). S/R: Without probable cause or reasonable suspicion, an officer may conduct a protective sweep of the area beyond the arrestees grabbable area to include closets or other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. However, the officer needs reasonable suspicion to sweep the rest of the area, in that reasonable suspicion to believe the area to be swept harbors an individual posing a danger to those on the scene of arrest. (Buie). SILA and Automobiles R: The right to search a vehicles occupant contemporaneous to a lawful arrest is automatic; however, the scope of a permissible vehicle search is case specific. S/R: When triggered, the SILA of an automobile permits police to search a vehicle incident to a recent occupants arrest only when either (a) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search OR (b) it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. (Gant). S/R: In an arrest of a car occupant, the grabbing area encompasses the entire passenger compartment of the car, to include containers therein. (Belton). Motor Vehicle Exception R: When a vehicle is being used on the highways, or if it readily capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the motor vehicle exception come into play. S/R: The reasonable expectation within a vehicle is decreased. S/R: When police searching a vehicle find the evidence they are seeking, the search must cease absent new information justifying a new search. Further, the police cannot search any portion of vehicle that could not contain the object sought. 8

Automobile Inventory Exception R: An automobile is searched an inventoried when impounded and is so done to (1) protect the owners property while in custody; (2) protect the police department against claims over lost or stolen property; and (3) to protect the police from potential danger. A warrant is not required. CONTAINERS R: All containers, even one belonging to a passenger of an automobile who is not suspected of criminal activity, may be searched without a warrant during an otherwise lawful auto exception search. If the container may be searched at a scene, it may also be searched without a warrant shortly thereafter at the police station. S/R: The above rule applies (1) as part of a valid warrantless car search when the police unforeseeably come across a container and the police may open I without a warrant, assuming that the container is large enough to hold criminal evidence police are searching for [no PC needed; Ross) OR (2) if the officer has probable cause to believe a particular container holding criminal evidence will be found in a car, the officer may conduct a warrantless search of the car for the container and then open the container without a warrant (Acevedo). S/R EXCEPTION: Absent exigent circumstances, consent or SILA, officers may NOT open a container found outside a motor vehicle without first obtaining a valid search warrant (Chadwick.).

TERRY AND SEARCH R: If, during a Terry stop, the officer reasonably suspects the suspect is armed and currently dangerous, he m ay conduct a limited pat-down for weapons in order to ensure his safety. The officer may seize weapons and obviously incriminating objects. Terry Frisk of a Car R: If an officer has a reasonable suspicion that the car is armed and presently dangerous, he may frisk the car but is limited in scope to those areas where a weapon may be placed or hidden and the area where the occupant is able to gain immediate control of weapons (Michigan v. Long). STANDING R: A person filing a Motion to Suppress must have suffered a violation of his 4th Amendment rights. S/R: Possessory/ownership interest or a close connection to the place searched must exist in order to constitute a legitimate expectation of privacy. 9

S/R: A person does not have standing to challenge a search of an area where he has no reasonable expectation of privacy [Katzian analysis] even though he has a possessory interest in property seized during the search. S/R: Overnight guests have a legitimate expectation of privacy in a guests home. S/R: Guests who are merely present in ones home probably do not have a legitimate expectation of privacy, and will be dependent on how long the guest knew the owner, how long the guest was in the home, the reason the guest was in the home and how long the guest intended to stay.

POLICE INTERROGATIONS: R: 14th and DPC: A who makes a claim against the voluntariness standard must show both (1) that the suspect was subjected to coercive police conduct and (2) under the TOC, the coercive conduct was sufficient to overcome the will of the suspect leading to the confession. R: 5th: A confession must be free and voluntary and not extracted by any sort of threats/violence/coercive conduct nor obtained by direct/implied promises, however slight. MIRANDA: Any statement, whether exculpatory or inculpatory as a result of custodial interrogation may not be used against the suspect in a criminal trial unless the prosecutor proves that the police provided procedural safeguards effective to secure the suspects privilege against compulsory self-incrimination. S/R: CUSTODIAL: A person is in custody when under formal arrest, or when such a restriction is placed on a persons freedom to render him in custody. Evaluating the circumstances under the totality of the circumstances, would a reasonable person have felt at liberty to terminate the interrogation and leave? The court will consider (1) the location, (2) the duration of the questioning, (3) the persons present and in what manner those persons were present AND (4) the statements and actions of the police. S/R: INTERROGATION: Interrogation involves the express questioning or functional equivalent, and includes any words or actions on the part of the police where they should reasonably know are likely to elicit an incriminating response from the suspect. S/R: Under a foreseeability analysis, the particular susceptibilities of the suspect and whether or not the officer was aware of those susceptible characteristics at that time. Miranda: Unequivocal right to remain silent, blahblahblah.

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MIRANDA EXCEPTIONS Miranda and Undercover Officers R: Conversations between suspects and undercover agents do not implicate the same concerns underlying Miranda. Miranda and Public Safety R: When arresting officers are confronted with the immediate necessity of ascertaining the whereabouts of a weapon which they have every reason to believe the suspect knows where the weapon is, it poses a danger to public safety and the need for answers to such questions to eliminate the threat to the public safety outweighs the need for the prophylactic rule protecting the 5th Amendments privilege against self-incrimination. (Quarles; very narrow holding). Miranda and the Booking Exception R: Routing questions or to secure biographical data or pretrial services reasonably related to the polices administrative concerns are exempt from Miranda. Fruit of the Poisonous Tree and Miranda R: If the first statement is not coerced, no taint carries over to the second statement. R: A violation of Miranda does not equal a violation of the DPC and 5th. Further, the exclusionary rule does not apply to secondary evidence. (Dickerson). R: A person subjected to custodial interrogation is entitled to Miranda regardless of the nature or severity of the offense of which he is suspected or arrested. However, persons temporarily detained pursuant to traffic stops are not in custody for the purposes of Miranda. (Berkemer). INTERROGATION AND WAIVER R: Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent (any words/actions on part of police) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Innis). Waiver R: A person may waive his Miranda rights, knowingly and voluntarily. S/R: No express waiver requirement applies; waiver can be inferred from the actions and words of the person interrogated. (Butler). S/R: The determination of whether or not a waiver was valid is based on a totality of the circumstances test, whereby the burden of proof is on the Prosecution to prove as such by a preponderance of the evidence. (Butler). S/R: If a waiver is given on one crime, it will also apply if the suspect is subsequently questioned on a different crime. (Butler). 11

6th Amendment R: A RTC is violated when the government DELIBERATELY elicits incriminating statements from accused in the absence of counsel (or waiver) after initiation of judicial proceedings. Judicial proceedings begin when a person is indicted or at arraignment. Exclusionary rule is the remedy, not FOPT. Statements can be used for impeachment purposes. Deliberate Elicitation v. Interrogation The terms are not synonymous R: Deliberate Elicitation, emphasis on intentional nature f POs effort to gain incriminating evidence. Focus on state of mind of officers rather than perceptions of accused. Difference here is the intentional nature of the conduct versus R: Waivers must be voluntary, knowing and intelligent relinquishment of 6th Amendment of Right to Counsel. (Brewer) Covert Interrogations Waiver does not come into play (cannot waive right to be free from police initieated interrogation that one does not know is occurring) Overt Interrogations Prior Law (Jackson) Once 6th Amendment has been invoked, any subsequent wiaver is ineffective during police initiated questioning. (Like Edwards) Jackson overruled by Montejo Under 6th Amendment, POs are not barred from approaching an accused to seek a waiver of her 6th Amendment right to counsel even if already requested counsel. If there is custodial interrogation after Miranda, and they invoke, it is 5th Amendment Miranda. If they are not custodial aspect (in home), Accused may assert M right to counsel if in custody (Edwards) IF you waive Miranda right to counsel equals a waiver of 6th Amendment. FOPT doctrine applies as well as exceptions 5th Amdendment Exclusionary rule is pure, you cannot use those statements in any way.

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