4

th
Amendment
Aguiler Test:
1) Probable
Cause
Effecting Arrest Accousting Seizure/Stop
(1) phys restr by PO, OR (2)
show of author & submission
Arrest w/o
Warrant
Rsb Art. Suspc armed/dang or contraband
Must have PC
Search & Seizure Rule:
Public Actor or
Governmental
Conduct?
Private still Gov't F under authority of PO
Standing
Own premise
searched
Live in place or
home (no own)
Overnight
guests
Don't own but may have rsb
expt of privacy (i.e. borr purse)
Passenger in
cars
f don't claim own
car
Don't claim property
searched
Held out to
public everyday
Sound of voice handwriting Records held at bank
"Open FieIds" &
"Pub. Airspace":
Emanating Odors (dog search if public & srch 4 contra)
Paint on car
Fair prob. that evid.
will be found in place
searched
Hearsay
permitted in
probable cause
Informant tip
permitted
(1) Sufficient facts &
circum. to allow magis to
know how PO got info
(2) Police must vouch for
RELIAB and CREDIB of
informant (thr prev tips)
use TOT of CIRCUM
2) Particularity
items & place
Good faith will overcome
defects with probable
cause or ptc req for
physical evidence
Affidavit for W is so lacking in PC - no rsb PO wld rely
PO or pros lied or mislead magis.
Magistrate is biased
Affidavit for W is so lacking in part - no rsb PO wld rely
Reasonable Exp of
Privacy & Society
Wld Believe So?
yes
sometimes if AND
no
Garbage (not in
curtilage)
Valid Search
Warrant?
but
states
AND
If not valid, will PO
"Good Faith"
reliance save?
If non-valid W, 6
Exceptions to
Warrant
Requirement:
Search Incident
to Lawful
Arrest:
Automobile
Exception:
Plain View Consent Stop & Frisk
Hot Pursuit /
Evanescent
Evidence
If arrest is unlawful
then search is unlawful
Arrest & search must
be contemp in time &
place
If taken out of car &
arsted NO. UNLESS
can reach car for
weapon or dest evid
Geographic Scope
Limitation
"Wingspan - person &
areas reached for
weapon or destroy
evidence
Automobile Exception
(when car has evidence):
Must have PC to support S
Can search ALL car (spaces &
trunk) less exp of privacy
(Carney)
Package or container
that RSB cld contain
item looking for if
owned by pass or
driver
Dunn Factors: (1) prox to house, (2) enclosed?, (3) nature/use of area, (4) steps to protect area
New Tech: (1) whth in gen use, (2) revealing inside not knwn othwis (arg gen use & know)
3) Reviewed/app
by neutral mag
In MD daytime is rule;
Fed exp made for night
Just b/c car, AE except not
guar. intent b/c cars move
PC can dev after stop
PO must be legit
present when
he/she does
viewing of item
seized &
Immediately
apparent
Whether lawfully
seeing (i.e. enter
house lawfully)
Consent must be:
Voluntary
Intelligent
both
and
Saying have warrant,
negates consent but no
req on PO to explain
TP consent
2 own,
either can
consent.
2 own, both
pres & 1 does
not consent
then not
Terry Stop
BREIF deten for purp of
invest suspic conduct
Standard =
reasonable
suspicion
Terry Frisk
Patdown check
for weap/contra
Standard =
reasonable
suspicion for
PO safety
(looks like
weapon or
contra)
Evan Evid:
evid that
might disap
if PO gets
warrant
(scrape
fingernails)
If PO are not
w/in 15 min
of fleeing
felon then
not w/in hot
purs
Ev Evid Hot Purs
If ok,
anything
entered from
home will be
admiss
PC develops that crim ab to be comm or did
or
Search: Person,
Place, House
Government actor intrudes on rsb expct of privacy
that society wld agree is private
Seizure
defined
defined
Whether state actor meaningfully interferes w/ indiv
possessory interest
ask
Factors: (1) Informant (a. basis of know, b.
reliab of infrm, c. self-verifying?, d. inform
corroborated of future behavior)?
Prob Cause: Factors (indv to specific persons/places - Pringle): (1) Informant
(a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated),
(2) exp of PO, (3) Ds prior crim record, (4) info from W or Vic, (5) furtive
gestures or flight?, (6) nature of area, (7) common enterprise?
4) Signed under
Oath
5) PC not stale/
old/out-dated
Serve in day, timely, knock/annc (avoid prop
damag, avoid violence, prevent unnec invasion)
Wait rsbl amt of time after K&A
Detain all (frisk = rsb sus of crim for non-subs)
Search only areas listed in warrant
Seize only items listed in W & in plain view
Executing W
all
Inventory srch: prtct
prop, prtct claims of
fraud/theft, PO safety
Must follow pre-estb PO
procedures.
If consent, may limit scope
(Jimeno)
Matlock Factors for TP Consent:
(1) mutual use, (2) joint access/control, (3) rsbl
recognition, (4) assumed risk
Police must act reasonably to determine.
Look for "meaningfuI connection"
that's not fIeeting
Fruit of Poisonous Tree
Exclusionary Rule Limitations
PO "Rslb Sus
knock wld:
Grand
Juries
Not in
Civil
To Qual: Must
Violate C or Fd Stat.
Not in parole
hearings
For impeachment
purposes
Not for violations
of "knock &
announce" ruIe
dangerous Inhib inves. - evid. destr.
Inevitable
Discovery
Intervening Acts of
free will on part of D
Independent
Source
No common enterprise of residence when W
is good on location w/ others (Ybarra)
Other guests:
May reasonably detain non-D'ed ind. in
house when W names D's
Purpose: exclude evidence obt by PO by
exploiting unlawfully obtained evidence
futile
Wiretapping &
Eavesdropping
PC required for
all
Howev, unreliable ear is
assumed for all people
This includes back of
police car
Confessions &
Miranda
Miranda Right to remain silent Words may be used against Rght to att'y Rght to att'y
Custodial
interrog.
(state actor)
Custody
In custody if at time of interg
did not feel free to leave
In cell, but also maybe
in home or hospital
Objective
stand
(1)
Prob intv & car stop
not custodial
Interrogation
Any conduct where PO knew or shld
know might illicit incrim respon from D
(2)
More than just asking
questions
Spontaneous statement
by D is admiss
Miranda
Waiver
voluntary intelligent
May waive w/o signing
waiver form
Shoulder shrugging not
enough, must comminc it
Right to Counsel
Once assert right to termin interr,
reinitiating w/o counsel = violation
5
th
Amnd
1 circumstance: D invokes, and PO
may not reinitiate on ANY topic
Not offense-specific
Offense specific 6
th
Amnd
McNeil incrim stat made while in
jail on burglary for murder, allowed
b/c didn't ask for att'y on murder
but
Checklist: Rght to atty @ interg Post-charge atty Due process in W ID
Bias the W in D'ing
Remedy: exclude ID
Excpt:
indenpd.
source
Pre-trial Procedures Bail Issues Immediately appealable Preventative detention is allowed
Honest mistake in
executing W may be
permissive
14
th
-
Fundamental
Fairness -
"Shocks the
Conscience"
Atty appt
Booking
Exception &
Public
Safety Excp
Look for (a) same
questions pre,post
Miranda, (b) timing, (c)
continuity of personnel
Look at
subjective
intent of PO
Warrantless Public Arrest
Committed in
Officer's Presence
Felony or
Misdemeanor
Not in Officer's
Presence
Felony w/ PC (no
need to show exig)
Even for very minor crime
when in presence of PO
Subjective intent of officer not material
If lawful, search of arrestee w/o warrant lawful
Warrantless House Entry to Arrest
Not permitted to make routine felony
arrest when nonconsensual - cannot
create the emergency
Exigent Circumstance
Prevent:
(1) destroy evid
(2) D escape
(3) danger
Hot Pursuit
Must be for major crime &
must be a continuous
pursuit from scene of
crime
except except
Lawful or Unlawful when make arrest in
home, police may search:
The person of D to
protect PO safety
W/in D immed.
Control (weap/contra)
and
When lawful, may conduct "protective sweep
(closets, hiding spots)
Cursory inspect & not excessive length
To go beyond cursory, must have rsb
art facts that warrant that other places
may harbor hiding assailant
Warrantless House Entry When Arrest
is Outside Home
Must be substantially contemporaneous to
arrest and confined to immed vicinity
If arrest outside & PO believe evidence
is inside, may detail D until PO can
obtain lawful W to search house
Warrantless Search of Auto Incident to
Arrest of Occupant for Lawfully
Stopped Vehicle
Belton rule: lawful custodial arrest of occupant,
may search passenger compartments &
containers found within (PO safety & evidence)
Including containers
owned by
passengers
Search may be for
occupants & recent
occupants
and
Even though police have PC to make
arrest, method they use must be rslb
Exigent Circum Factors:
(1) amount of time between crime/arrest,
(2) severity of crime,
(3) protection is sole reason for entrance
(4) police have seen commission of crime,
(5) # of ppl affected by entry
Atwater: police may arrest for any violation,
even minor. Whren: Test is whether COULD
HAVE arrested or pulled over, not subjective
intent of PO
Special Needs Cases
(a) rsbl grounds to think there's a violation
of school policy,
Schools
(a) rsbl grounds to believe search will turn
up evidence
and
Excessive intrusiveness of search
shown by: (a) age, (b) gender, (c) crime,
(d) method used for search
Evaluate (1) level of intrusiveness of
"checkpoint or mandatory stop, (2) extent
of the state's interest, (3) effectiveness of
the method, (4) notice prior to stop or
intrusion.