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Expectations of Privacy Questions

• Established in United States v. Katz


• Applies not only to personal property, but also the personal space where the individual has a reasonable and
objective expectation of privacy
• HUGE Expectation of Privacy around the home (unless you live in a home with wheels) – anything that
emanates from the home is protected
• Areas that present problems –
o Garbage
o Curtilage
o Ariel Observations
o Luggage
o Electronic Tracking Cases

Miranda Questions
• Is the suspect in custody?
o If not in custody – then there is no need to Mirandize him
o Custody occurs when there is
 Application of Physical Force AND
 Submission to Show of Authority
o Additional Factors that need to be considered when an encounter becomes a seizure
 Length of the stop
 Location of the Stop
 Police Conduct during the Stop – Did the police use the least intrusive means?
• Was the suspect given all of his Miranda rights?
o All suspects must be given all rights even if they already know them or don’t want to hear them
o Suspect does not have to know which crimes he will be questioned about prior to interrogation
• What are the suspect’s choices?
o Waive his right – this must be knowing, intelligently, and voluntary
o Assert his right to silence
 Police must now scrupulously honor the suspect’s right
 You can bring the suspect back in several hours, but you must re-Mirandize him
 There are also potential Innis issues if the officers covertly question the suspect after he has
asserted his right to silence
o Assert his right to counsel
 Must be clearly articulated – if the suspect answers ambiguous, then the police must clarify
before continuing questioning
 This is an Edwards trigger and you can’t continue questioning the suspect unless,
• Counsel is actually present (consultation is not enough)
• Suspect reinitiates conversation
 There are also potential Innis issues if the officers covertly question the suspect after he has
asserted his right to counsel
• Police can now interrogate the suspect if he has waived his Miranda rights – hopefully this will produce
incriminating statements
6th Amendment Right to Counsel Questions
• Is the suspect formally charged?
o If formally charged, the police cannot question the suspect without counsel being present
 Right to Counsel only attaches to the crime that was formally charged
o Does not matter if defendant is in custody or not – Right to Counsel attaches for the entire judicial
process
o Only the attorney, and not the defendant, can waive the right to talk without counsel present
• Counsel attaches at the time of preliminary hearing at the latest, even if the defendant does not formally ask
for an attorney – Jackson trigger
• Counsel must be present for all questioning AND corporeal identification procedures

Search & Seizure Questions – 4th Amendment


• With a Search Warrant
o Is there probable cause in the application for the search warrant?
 Use the Gates test which incorporates the Aguliar / Spinelli Test
• Who are you getting the information from and why should the judge believe the
individual and the information provided?
 You must have probable cause in the application – you can’t supplement the application
after the fact
o Was the application presented to a neutral and detached judge?
o Was the search warrant / application particular enough?
 Is the location to be searched readily identifiable?
 Are the items to be seized listed specifically?
o If there is not probable cause, is there a “good faith” exception?
o Are you attempting to seize business documents or personal papers?
 If so, then you have to address the 5th Amendment rights not to incriminate one’s self
o Was the search warrant executed properly?
 Appropriate time and manner?
• Without a Search Warrant
o Where are the police searching?
 If searching within an individual’s house per Payton, then you can only search the person,
their effects, and the lunging orb
 If searching in public, you can only pat down an individual if you have an articulated
reasonable suspicion that the individual is carrying a weapon (per Terry)
• And if you find something that could be contraband, but is obviously not a weapon
– you must stop the search unless you have additional probable cause to arrest the
individual and conduct SILR
• But you can stop and briefly detain an individual with only a reasonable suspicion
that a crime has just occurred or will be occurring
 If searching in car, you can search all passengers, their personal effects and the passenger
compartment of the car with probable cause that a traffic violation occurred
• You cannot search the trunk of the car without consent, probable cause that
something illegal will be found in the trunk, or impounding of the car as part of a
lawful arrest (inventorying the car)
o If you only have an arrest warrant and not a search warrant, do you need to perform a protective
sweep?
o Is this a search incident to a lawful arrest?
 You may search an individual, his personal effects, and the lunging orb if you arrest an
individual
 You may not search every individual around that person in a public place if you have no
(probable cause) – per Ybarra
 When you arrest somebody and take them down to the station, you may
• Ask them all booking questions
• Search their person and effects again for inventory purposes
• Strip Search the Individual
• Withdraw blood if you have (probable cause) that the person is under the influence
of drugs or alcohol at the time

Car Questions – Search, Seizure and Arrest


• Initial Questions That Must All Be Answered in the Affirmative
o Is there probable cause to arrest the driver?
o Is there probable cause to search the car?
o Is there probable cause to search the containers within the car?
• No search warrant is necessary to stop an individual in a car as long as the officers have objectively based
probable cause to stop the car for a traffic violation
o Officer does not need to be able to articulate the objective reason for pulling an individual over at
the time of the stop
o Cars do not have a very high reasonable expectation of privacy because they are so heavily
regulated and accessible as well as because of their mobility
• Can the police do a “protective sweep” of the car to look for weapons that might be used to injure the
police?
o Yes, but the police can only look in places where weapons could be reasonably stored
• What can the officer search with only probable cause of a traffic violation?
o All persons in the car
o All personal effects in the car including closed containers such as purses and backpacks
o The interior of the passenger compartment of the car
• What can the officer search if he has additional reasonable suspicion of illegal activity above and beyond
the initial traffic violation?
• When can the police officer search the trunk of a car?
o Re-Read Acevedo
• When can the police officer search containers in the trunk of the car?
o When there is probable cause to search a container based on additional evidence such as in
Acevedo, then the police can search the container – but not the rest of the car absent additional
probable cause
• When nobody takes ownership of the illegal items seized in the car, whom do the items belong to?
o The police now have probable cause to arrest any and all individuals in the car if nobody claims
ownership to the drugs/gun/illegal items.

Eyewitness Identification Problems


• What type of identification process was used?
o Corporeal – 6th amendment requires that defense counsel must be present
o Non-corporeal – administrative easier and does not require counsel to be present
• Was the procedure overly suggestive in violation of due process rights?
o Defense has the burden of showing that the procedures were overly suggestive
o Burden then shifts to the prosecution to show that regardless of the fact that procedures were overly
suggestive, the identification is nonetheless reliable
• Even if the initial identification can be suppressed, the witness may be able to make an in court
identification of the suspect if the prosecution can show that this identification is not tainted by prior
identifications

Exclusionary Rule
• What is the primary illegality?
o Was it an illegal entry?
o Was it an illegal arrest?
o Was it an illegal search or seizure?
o Was it a Miranda violation?
o Was it a Massiah violation (6th amendment right to counsel)?
o Any information arising out the primary illegality is inadmissible – i.e. statements obtained in
violation of Miranda or items obtained during an illegal entry or search
• What is the derivative evidence? (Fruits of the Poisonous Tree)
o For 4th Amendment Violation – anything that is derived from the primary illegality will be
suppressed
o Miranda is a fruitless tree – so only statements obtained in violation of Miranda will be suppressed
o 6th Amendment violations – do these violations have any fruits that could possibly be suppressed?
• Are there any defenses available to the prosecution?
o Attenuation
 How much time had passed?
 What occurred during the passage of time?
 How flagrant was the police behavior during the primary illegality?
o Independent Source
 Witnesses and their testimony will be presumed to be sufficiently independent
 Murray Case
o Inevitable Discovery
 Must have exact information to show that the item would be discovered within short time
and in similar condition
 Nix v. Williams

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