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