INCORPORATION

14th Amendment incorporates the Bill of Rights to the states

Clauses:
(1) Citizenship Clause
(2) Privileges and Immunities Clause
a. Right to be protected by the government
b. Right to acquire and possess property
c. Right to travel through/reside in any state and engage in trade, agriculture, or profession
d. Right to writ of habeas corpus
e. Right to sue and defend in court
f. Right to receive the same tax treatment as all other citizens
(3) Due Process Clause
a. Procedural Due Process: state must give notice and opportunity to be heard when taking action to deny a person life,
liberty, property
b. Substantive Due Process: application of 5th and 14th amends. - any intrusion by gov. upon the fundamental rights and
liberties of citizens must be fair and reasonable and in furtherance of a legitimate gov. interest
c. Prohibition against vague laws
d. Vehicle by which the Bill of Rights is made applicable to the states
(4) Equal Protection Clause
(5) Enforcement Clause
ANALYSIS OF FOURTH AMENDMENT SEARCH AND SEIZURE
(1) Does the have a 4th Amendment Right?
a. Was there a search or seizure by government conduct?
i. Jones search: when gov. unlawfully, physically occupies private property for the purpose of obtaining info.
ii. Katz search: when gov. violates an individuals expectation of privacy that society recognizes as reasonable.
b. Did the have a reasonable expectation of privacy?
c. Were the s property rights violated?
(2) Did the police have a search warrant?
a. If no, does an exception apply:
i. Search incident to arrest
ii. Automobile exceptions
iii. Plain view/open fields
iv. Consent
v. Investigative stop and frisk
vi. Hot pursuit
vii. Evanescent evidence
viii. Exigent circumstances
ix. Administrative search
x. Entry of s home w/ arrest warrant to arrest
xi. Inventory search
xii. Search of probationers home
xiii. Border searches
xiv. Special needs not to detect evidence of ordinary criminal conduct, but for some other non-criminal law
enforcement legitimate governmental purpose (school order, maintaining a learning environment).
1. Includes drug/recent crime checkpoints, drug testing in schools/for extracurriculars, search of government
employees desk/computer/workspace.
xv. Roadblocks
b. If yes, apply search warrant sufficiency case law:
i. Does the affidavit in support of the search warrant state facts supporting probable cause?
ii. Is the search warrant precise on its face stating with particularity the place to be searched and the items to be seized?
iii. Was the search warrant issued by a neutral and detached magistrate judge?
iv. Was the search warrant executed properly?
(3) If Exclusionary Rule applies:
a. Inevitable discovery rule
b. Independent source rule
c. Attenuation
d. If the search warrant is invalid does a good faith exception apply?
i. Reliance on an invalid warrant approved by a magistrate judge
ii. Reliance on a statute later declared invalid
iii. Reliance on a judicial opinion later changed

iv. Police act on incorrect data in records system

EXCLUSIONARY RULE ANALYSIS

(1) Was the evidence obtained in violation of the s constitutional or statutory rights by government agent?
a. If yes, go to step 2
b. Is fruit of the poisonous tree analysis applicable?
(2) Is the proceeding criminal or civil?
a. If criminal, exclusion rule applies (see 3 below)
b. Exceptions:
i. Grand jury proceeding
ii. Parole proceedings
iii. Deportation proceedings
iv. Civil tax cases and forfeiture proceedings
c. Some federal statutes provide for greater scope of exclusion
(3) Is the evidence offered to impeach the (not defense witnesses)?
a. If yes, then evidence is admissible.
b. If no, it is offered for some other purpose, it is not admissible.
(4) Is there a good faith exception in the jurisdiction?
a. Reasonable reliance upon judge/search warrant
b. Reasonable reliance upon erroneous database or clerk
c. Isolated negligent error based on erroneous error
d. Reasonable reliance on statute authorizing the search when statute later held unconstitutional
(5) Is there an inevitable discovery exception?
(6) Is there an independent untainted source exception?
(7) Is there any attenuation exception?
WHAT IS A SEARCH?
(1) Katz: A search occurs when a government violates an individuals expectation of privacy that society recognizes as
reasonable.
(2) Jones: A search occurs when the government unlawfully, physically occupies private property for the purpose of obtaining
information.
(3) Doctrines that might apply to what is a search?
a. Assumption of the risk: disclosure, even in private circumstances, always has the potential for public disclosure
b. Private v. public space: public acts, including movements, have no expectation of privacy
c. Sense-augmenting or enhancing v. sense-replacing technology: field glasses augment sense perception; infrared
replaces the natural sense.
d. Mosaic theory: while an isolated piece of data may not be protected by the 4 th Amendment an aggregated sum of such
data invades privacy and is protected by the 4th Amendment.
e. Plain text enumeration: The 4th Amendment applies only to persons, houses, papers, and effects.
f. Plain view: A law enforcement officer has a right to be where the officer is therefore the officer has a right to see, hear,
and smell what is exposed to public view.
g. Open-fields doctrine: area outside the curtilage of a house may be searched w/o a warrant as open-fields are not
persons, houses, papers [or] effects and w/in which there is no reasonable expectation of privacy.
h. Consent and third party consent: three theories (1) it creates an exception to the requirements of the 4 th Amendment;
(2) there is no 4th Amendment protection b/c w/ consent there is no search; and (3) with consent any search is
reasonable.
i. Common law trespass: an entry on another persons real property, w/o a lawful authority, and doing some damage,
however inconsiderable.
(4) Analyzing a search under 14th Amendment
a. 14th Amendment only protects from unreasonable searches and seizures.
b. Was police/government conduct reasonable under the circumstances?

WHAT IS A SEIZURE?
(1) A seizure by the government is the exercise of control over an object that results in a meaningful interference with an
individuals possessory interest CAN ONLY BE MADE WHEN THERE IS PROBABLE CAUSE!!!
(2) An arrest is a seizure of the person and takes place when there is a physical application of force by law enforcement on a
person or there is submission by a person to law enforcements show of force.
PROBABLE CAUSE: exists where the facts and circumstances w/in the 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: (1) an offense has been
or is being committed or (2) evidence subject to seizure will be found in the place to be searched.
(1) Assertions of facts to support probable cause are required
(2) Assertions of conclusions of fact or law, mere speculations or a hunch are not sufficient.
(3) Does not need to be sufficient to prove guilt
(4) How to establish probable cause in an affidavit:
a. Observation information obtained by officer through observation
b. Circumstantial evidence indirect evidence that implies something occurred but does not directly prove it.
Circumstances surrounding the facts can be used to reasonably infer guilt or innocence.
c. Expertise The training of police officers which enables them to identify certain movements, gestures, preparations, or
tools as tending to indicate criminal activity.
d. Information Includes statements by witnesses, victims, and informants.
e. Sensory If the officer detects evidence of a crime simply through sight, smell or hearing, the officer has probable cause
f. Consent If the defendant agrees to a search, then probable cause is automatically created
(5) Using hearsay to establish probable cause: Aguilar-Spinelli test
i. The magistrate must be informed of the reasons to support the conclusion that such an informant is reliable and
credible [VERACITY PRONG]; and
ii. The magistrate must be informed of some of the underlying circumstances relied on by the person (the informant)
providing the information [BASIS OF KNOWLEDGE PRONG].
REASONABALE SUSPICION: must be more than mere generalized suspicion or hunch. Reasonable suspicion must be based on
specific articulable facts, together with rational inferences drawn from those facts, which reasonably warrant suspicion of criminal
activity based on the totality of the circumstances (Gates).
ELEMENTS OF A VALID WARRANT
(1) Facts presented to magistrate must be under oath in form of an affidavit (or possibly oral)
(2) The warrant must be particular (place to be searched, items to be seized)
(3) Must be issued by a neutral and detached (disinterested) judicial officer
(4) Must be executed during the day-time as defined by the jurisdiction, unless authorized for night-time
(5) Knock and announce: the police must knock and announce their presence and authority and give occupants an opportunity to
comply w/ the police authority.
(6) Probable cause required established to the satisfaction of a judicial officer
EXIGENT CIRCUMSTANCES (EMERGENCY DOCTRINE/NECESSITY DOCTRINE)
There must be an emergency situation requiring swift action by the police by warrantless, non-consensual and forcible entry into the
house to prevent imminent danger to life or serious damage to property, or to prevent escape of a suspect or destruction of evidence.
What is needed:
(1) Specific facts as above
(2) Lawful Manner when law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent
circumstances (knock and announce)
(3) Bad faith test what are subjective intentions of the police
(4) Reasonable foreseeability test was the danger that evidence would be destroyed reasonably foreseeable to the police as a
result of their conduct? (NOT REALLY USED ANYMORE)
(5) Standard or Good Investigative Tactics Test based on reasonableness of action
(6) Probable cause at the time to secure a search or arrest warrant did they have time?
(7) Hot pursuit exception exception to warrant requirement when a suspect has fled and entered into a premise: would delaying
entrance endanger the officers lives or the lives of others or would delay lead to the escape of the suspect or destruction of
evidence?

Types of exigent circumstances

(1) A person in danger
(2) Assault in progress
(3) A sick or injured person
(4) Fires or explosions
(5) Burglary in progress
(6) Robbery in progress
(7) Homicide scene
(8) Dead bodies
(9) Crime scenes
(10) Welfare calls
(11) Children left alone call
(12) Missing persons reports
(13) Officer safety
(14) Drug labs when specific facts demonstrate an emergency
Factors to consider:
(1) The gravity of the offense;
(2) Is the suspect armed;
(3) Do the officers have probable cause to believe the suspect committed the crime;
(4) Do the officers have strong reasons to believe that the suspect is in the premises;
(5) What is the likelihood the suspect will escape;
(6) Hot pursuit of a fleeing suspect.
SEARCH INCIDENT TO ARREST
What is an arrest: physical force upon the person or under the totality of the circumstances would make a reasonable person feel that
he was not free to leave or terminate the encounter. Bostick.
(1) Arrest must be based on probable cause
(2) Unlawful arrest is not a bar to prosecution
(3) Arrest warrant not required
Upon arrest, an officer making a lawful arrest may conduct a full search on the person of the arrestee and in his immediate control.
Chimel. As applied to automobiles, this means the area in which the arrestee could have reached (security and preservation of the
evidence concerns).
Gant test (automobile)
(1) police may search a vehicle incident to a recent occupants arrest only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search; OR
(2) Police may search when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
REASON TO BELIEVE (GANT AUTOMOBILE not subject to the exclusionary rule)
Not probable cause and not reasonable suspicion somewhere in between.
Observation of a weapon is enough to justify a limited search of the interior of the car for other weapons. Long.
PRETEXTUAL STOPS
An objectively valid stop with a secondary investigative motive to obtain evidence of a crime for which the officer does not have
probable cause.
Three approaches:
(1) The objective standard: if the officer could have legally made the stop, then it was not pretextual and the subjective intent
of the officer is not considered. ADOPTED BY THE COURT IN WREN!!
(2) The subjective standard: if the subjective intent of the officer is to conduct a search for which the officer does not have
probable cause at the time of the stop, then the stop is unlawful.
(3) The reasonable officer standard: whether a reasonable officer employing normal police practices would have made the stop
but for some illegitimate motivation
PLAIN VIEW AND PLAIN TOUCH EXCEPTION
Basic rules Plain View:
(1) The item must be in plain view of the officer; and
(2) When the officer discovers the item, the officer must be lawfully in the place; and
(3) The incriminating nature of the item must be immediately apparent.
Basic rules Plain Touch
(1) Cant go digging around
(2) Only items felt and identified through clothing admissible

CONSENSUAL SEARCHES
(1) Valid consent allowing the police to conduct a warrant requirement
(2) To be valid consent the government must prove by a preponderance of the evidence that the consent was voluntary.
(3) The test to be applied to this factual question of voluntariness is based on the totality of the circumstances (objective test
CONTAINER SEARCHES
A search warrant supported by probable cause is required to search a closed container. Chadwick. Warrantless searches are per se
unreasonable. Katz.
Mobile vehicle warrantless search of a closed container in a mobile vehicle is reasonable if:
(1) it is supported by probable cause to search the entire car or a portion of the car; and
(2) the object of the search for which there is probable cause could be found w/in the container searched
Containers in Terry stop situations: Containers that may hold a weapon may be searched in a Terry stop based on officer safety
factors. When an officer does a patdown and through the sense of touch it is readily apparent it is contraband are lawfully seized
when the scope of Terry is not exceeded.
Containers in a search incident to arrest:
(1) Search of the person: Robinson approves the search of any container found on the person of the arrestee.
(2) Search of car incident to arrest: Chimel permits the search of the area w/in which the arrestee might reach for a weapon or to
conceal or destroy evidence.
(3) Search of car incident to arrest: Gant established a two-part test for search fot eh passenger compartment of a car, and
containers, incident to arrest:
a. The Chimel rationale authorizes police to search a vehicle incident to a recent occupants arrest only when the arrestee is
unsecured and w/in reaching distance of the passenger compartment at the time of the search. Or
b. The circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to
believe evidence relevant to the crime of arrest might be found in the vehicle.
Containers in an inventory search: inventory searches do not require probable cause nor exigent circumstances, nor reasonable
suspicion and containers may be opened for purposes of the inventory of the contents. The inventory search must not be a general
warrantless search for evidence leaving unreasonable discretion to the officer. Thus, there must be a uniform procedure for conducting
the inventory search.
Consent search: A voluntary consent authorizes a warrantless search. There must be an absence of official coercion and the person
giving the consent must have the authority or the appearance of having the authority to give the voluntary consent.
TERRY STOPS
(1) Reasonable suspicion
(2) Based on objective, specific (particularized), and articulable facts
(3) That a crime has been committed or is being committed
Common considerations for reasonable suspicion:
(1) The observations of the police officer before making the stop
(2) Any information that the officer receives from others leading to the stop
(3) The time and place of the stop
(4) The location of the person stopped and the location of any reported recent crime in the area
(5) The demeanor of the person when they come into contact with the police
(6) The assessment of the situation by the officer based on training and experience and knowledge of the area in which the stop
takes place
(7) Reasonable inferences based on facts, human behavior and experience
(8) Flight of the person when contacted by the police
(9) Unusual sounds for the time and place that indicate possible criminal activity
(10) Credible information from a reliable source
(11) Specific knowledge of the officer of the past activities of the suspect that indicate current unlawful activity.
Scope of the Terry stop:
(1) limited by the purpose ask questions to resolve the suspicions expeditiously and protection of officer safety
(2) May conduct a patdown if its believed the person is armed and poses a threat to the public or officer safety

Examples of a show of authority or use of force that may not make the Terry stop an arrest:
(1) Ordering the suspect to keep their hands in sight
(2) Asking questions of the suspect to determine if they are a threat or have something that is a threat.
(3) Restricting the movement of the suspect
(4) Ordering a suspect or suspects to lie down on the ground
(5) A pat-down of the suspect reasonably believed to be armed or pose a danger to the officers or others
(6) Handcuffing the suspect when it is reasonable to restrain the person based on the totality of the circumstances and the
duration is consistent with the purposes of a Terry stop. Examples:
a. Suspect refuses to obey orders to keep hands in sight or reaches into pockets or other places
b. Suspect tries to get away from the officers
c. Suspect is belligerent and hostile to the police or others
d. Suspect is reasonably believed to be armed or have committed a violent offense
e. Suspects are greater in number than the police
f. Suspect is in the presence of the alleged victim of a violent offense
(7) Police record checks are appropriate especially for officer safety as a wanted person presents a greater danger to the officers.
(8) Pointing a gun at the suspect is appropriate for a Terry stop, although it suggests that an arrest is taking place. It remains a
Terry stop if under the totality of the circumstances it was a reasonable precaution and the weapon is holstered when the
reason for its use is resolved.
(9) Ordering drivers and occupants to get out of or stay in car
(10) Placing the suspect in a police vehicle.
SEIZURES IN TERRY STOPS
(1) A person is seized when a reasonable person in his situation would not have felt free to leave or otherwise to terminate the
encounter w/ law enforcement
(2) A seizure occurs when there is an application of physical force or when there is a submission to the assertion of authority
SPECIAL NEEDS DOCTRINE
Students have a constitutional right that they do not leave at the door to the (public) school. They retain their expectation of privacy
w/in the school setting and in their effects. Tinker.
The 4th Amendment prohibition of unreasonable searches applies to public school officials.
Nevertheless, school officials are constrained by the reasonableness requirement, but not by the probable cause-warrant
requirement
(1) A school search is justified when there are reasonable grounds for suspecting that the search will turn up evidence that the
student has violated or is violating either the law or the rules of the school.
(2) Locker searches are permissible if the school has a policy in place or there is a statute that all lockers are subject to searches.
(3) Backpacks, purses, wallets, etc. studets have an expectation of privacy
Road Checkpoints are allowable:
(1) to enable police to question citizens about a recent crime
(2) near the border where drug smuggling is rampant
(3) to check for drunk drivers based on the immediate threat to life posed by drunk drivers
Government employees do not have a reasonable expectation of privacy in anything they do because government work justifies
searches related to the sensitive nature of the work.
This comes into play where the government (including state public schools they are state actors, unlike private schools) does not
have a warrant and it does not establish an individualized suspicion.
STANDING OR DOES THE HAVE AN EXPECTATION OF PRIVACY?
Is the person the proper party to request an adjudication of a particular issues.
(1) the individual must have personally suffered an actual or threatened injury
(2) the injury must be traced to the challenged action
(3) the injury must be likely to be redressed by a favorable decision
Prudential Standing:
(1) the individual may not litigate generalized grievances shared by a large group of individuals
(2) the individual may not assert the interests of another to challenge a government action
(3) the individuals interest injured by the government action must fall w/in the zone of interest arguably protected by the
constitutional or statutory provision challenged

Factors to consider in the totality of the circumstances as to whether there is a legitimate reasonable expectation of privacy:
(1) Does the have a property or possessory interest in the place searched or the item seized?
(2) Does the have a right to exclude others?
(3) Did the exhibit a subjective expectation of privacy in the place that it would remain free from government intrusion?
(4) Did the take normal precautions to maintain his privacy?
(5) Was the legitimately on the premises?
(6) Was the present on the premises for commercial purposes?
(7) Was the present on the premises as an overnight guest?
EXCEPTIONS TO THE APPLICATION OF THE EXCLUSIONARY RULE
(1) Independent Source
a. If knowledge is gained from an independent source you can use it, but if gained from wrongful government action, no.
(2) Attenuation
(3) Inevitable Discovery
a. Evidence that would have been discovered in any event may be held to be admissible.
(4) Good Faith
ADMISSIBILITY OF CONFESSIONS A SHORTHAND MIRANDA ANALYSIS
(1) Involuntary confession: not admissible (violates 5th and 14th Amendments)
(2) not in custody and confessed: admissible
(3) was in custody but no interrogation: admissible
(4) was in custody and confession in response to interrogation:
a. Miranda warning given and waived both as to silence and attorney: admissible
b. Miranda warning given, no waiver, interrogation: inadmissible [except c. i & ii may apply]
c. Miranda warning not given, interrogation: inadmissible, however
i. Public safety exception: admissible
ii. Booking questions exception: admissible
d. Miranda warning not given, interrogation, followed by confession, followed by Miranda warning, followed by waiver,
followed by interrogation, followed by confession:
i. Admissible if first failure to give Miranda not intentional to avoid Miranda
ii. Inadmissible if first failure to give Miranda intentional to avoid Miranda
(5) Miranda warning given and does not explicitly, unambiguously, and unequivocally invoke right to remain silent, police
question , waives both right to remain silent and attorney: admissible
(6) Miranda warning given and does explicitly, unambiguously, and unequivocally invoke right to remain silent, police
question resulting in confession: inadmissible as all questioning must cease
(7) Miranda warning given and does not explicitly, unambiguously, and unequivocally invoke right to counsel, police question
, waives both right to remain silent and attorney: admissible
(8) Miranda warning given and does specifically invoke right to counsel explicitly, unambiguously and unequivocally, police
question and obtain confession: inadmissible.
PROPHYLACTIC RULES AND CONSTITUTIONAL RULES
Prophylactic rules is one which is created by court decision to implement a constitutional right: i.e. Miranda and 5th Amendment
MIRANDA
Determining whether a suspect is in custody:
(1) whether police told the suspect that the questioning was voluntary, the suspect could leave or ask the officers to do so, or
that the suspect was not considered under arrest
(2) whether the suspects movement was restrained during the questioning
(3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions
(4) whether police used strong arm tactics or deceptive strategies during questioning
(5) whether the atmosphere of the questioning was police dominated
(6) whether the suspect was arrested at the end of questioning