Anda di halaman 1dari 2


Fourth Amendment protects from unreasonable searches and seizures.
Standing: D must show ownership or possessory interest in the place searched or items seized. After standing is established,
1) Was the search or seizure by a governmental agent?
2) Did the search violate the defendants reasonable expectation of privacy? No REOP in open fields, garbage left
outside the home, ban account records, handwriting, sound of voice, car on public street.
3) If there appears to be REOP and search was by government agents, then ask if there was a warrant and whether it was
properly executed? If not, can the search be saved by the good faith exception?
Who does not have standing to sue? Passengers in a car who do not claim they own the car, or own the things taken out of
the car and drug dealer briefly on the premises of someone else for drug purposes
Warrant requirements: Neutral and detached magistrate, based on probable cause (totality of circumstances), precise on its
face, properly executed (without unreasonable delay and knock and announce).
Exceptions to warrant requirement:

Searches incident to lawful arrest (only person and wingspan may be searched)

Automobile exception This requires probable cause that vehicle contains fruits, instrumentalities or evidence
of a crime. Police may search the howl car, and may open any package or luggage as long as item they are looking for
can be hidden in those compartments.

Plain view: Police may seize property without a warrant where they are legitimately on the premises, and
discover evidence of crime in plain view.

Consent: Must be voluntary and intelligent and person must have authority to consent

Stop and Frisk: Police officer may stop a person w/out probable cause where there is reasonable suspicion of
criminal activity (lower standard than probable cause). Scope is limited to pat down of outer clothing.

Hot pursuit and evanescent evidence

Inventory or impound search

Police checkpoint at the border or for sobriety checks

Temporary detentions require reasonable suspicion based on articulable facts.
Admin searches

Exclusionary Rule: A judge-made doctrine that prohibits the introduction of evidence obtained in violation of a
defendants 4th, 5th, or 6th Am rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all fruit of the
poisonous tree must also be excluded. Limitations: Grand jury, civil proceedings, parole revocation proceedings,
violations of state law, good faith defenses, impeachment, Miranda, defective search warrant.

Fruit of the Poisonous Tree Doctrine: allows the court to exclude all evidence obtained or derived from that
original police misconduct. Exceptions: Evidence obtained from a source independent of the original illegality, inevitable
discovery, intervening acts of free-will on the part of the D, violations of knock and notice.
Privilege against self-incrimination protects compelled testimonial evidence.
Voluntariness: - Totality of circumstances. Nature of D and how confession was obtained. Low level trickery is acceptable
i.e. police can tell D that co-conspirator confessed. Coerced confession used to be always inadmissible but no subject to
harmless error. Confessions obtained involuntarily may not be used for collateral purposes such as impeachment
Miranda Doctrine - Fifth Amendment right to not self-incriminate Miranda warning is a pre-requisite to the admissibility of
any statement made by the accused during custodial interrogation. Miranda warnings apply to even petty offenses.
Apply Miranda when the person is in custody (objective test for when D is not free to leave) and if there is an interrogation
(any conduct that the police knew or should have known could produce a damaging statement)

Assertion of right to remain silent must be explicit, unambiguous. Statements made in violation of Miranda
admissible to impeach.

Limitations: Miranda does not apply to questioning by private security guards; on the scene questioning;
questions asked at a routine booking but slurred response can be used as circumstantial evidence; testimony to IRS;
grand jury testimony; truly voluntary statements; questioning in jail cell by undercover police agents.
5th Amendment Right to Counsel - When, upon hearing the Miranda warning, someone invokes his right to counsel, reinitiation of interrogation by the police w/out his attorney present violates the Ds 5th Amendment right to counsel. The right to
counsel is not offense specific. The police must stop interrogation on all issues


Right to assistance of counsel in all critical stages of criminal prosecution after judicial proceedings have begun. Right is

Right at custodial interrogation, post charge lineup or show up, guilty plea and sentencing, appeals

No right at photo ID or taking of physical evidence, parole or probation revocation proceedings and postconviction proceedings
Generally, under the 6th Amendment, a suspect has a right to the presence of an attorney at any post-charge line-up or
show-up. But, no right to counsel, when the police show a witness or a victim photographs.
Denial of Due Process: Where a pre-trail identification is unnecessarily subjective and there is a substantial likelihood of
misidentification the defendant may attack the identification as denying due process. In these cases, identifications must be
But, a witness may make in-court identification despite the existence of a prior unconstitutional identification, as long as the
prosecutor can verify the identification with an independent source.
Right to a jury trial only applies where the maximum authorized sentence exceeds 6 months OR the sum of the sentences
for criminal contempt exceeds 6 months. The minimum number of jurors is 6. No constitutional right to a 12 person
unanimous verdict. It is unconstitutional for the prosecution or the defense to exercise preemptory challenges to exclude
prospective jurors on account of their race or gender. The jury pool must reflect a fair cross section of the community.
Double Jeopardy Person may not be retried for the same offense. Jeopardy attaches in a jury when jury is empaneled and
sworn or in bench trial when first witness is sworn Exceptions: hung jury, manifest necessity aborts first trial, successful
appeal of conviction unless for insufficient evidence. Same offense or lesser included, unless new evidence, is barred. Does
not apply to separate sovereigns.
Right to grand jury trial does not extend to states.
Ineffective Assistance of Counsel. Claimant must show: Deficient performance by counsel and had it not been for the
deficiency, the result of the proceeding would have been different.

Applies to any person asked under oath in any case a question, which tends to incriminate them. Waiver: You
must assert the privilege the first time the question is asked, or you will have waived that privilege in all subsequent

Scope: the 5th Am does not protect a D from having to use his bodies to incriminate him (e.g. a hair sample,
urine sample, blood sample). Only protects from compelled testimony (e.g. a lie detector test or custodial police

Use and derivative use immunity promise that the govt. will not use your testimony or any evidence derived
from that testimony to convict you but the govt. may still prosecute you based on evidence it can show it had prior to
granting that privilege.