5/6/2012 12:59:00 PM

Criminal procedure video notes 4th amendment search and seizure four global search and seizure issues I is search or seizure governed by 4th A was search or seizure executed by gov. agent? o 1 three catagories publically paid police; private citizens only if acting at direction of po-po, public school administrators. NOT gov. agents private security If no then not a search or seizure B as there a reasonable expectation of privacy of area searched or items seized. o 1 protected areas persons (body) houses (includes hotel rooms) includes area of domestic use curtailidge (considered extension of the house) papers (letters) effects (purse, backpacks, luggage) o 2 - unprotected areas by supreme court: a) account records held by bank, b) anything that can be seen in or across the open fields melts away 4th A protection towards house protections, c) garbage at the curb, d) odors (typically from car or luggage), e) anything that can be seen below when flying in public airspace. Cannot use publically unavailable (not in general public use) technology to penetrate screens of privacy) o 3 - Standing: to challenge conduct the bringer of the personal privacy rights whom have been invaded have standing to bring suit: owners of a premises; residents of a premises; overnight guests or areas they can be expected to access; temporary guests (invitees) or guests for biz purpose do not have standing. Ownership of prop is enough if they have a reasonable expectation of property from the area from which the

prop is seized. dude stashed drugs in gfs purse. He has no standing. Passengers in the car have no reasonable expectation of privacy anywhere in the car.

II is a search or seizure under 4th with warrant does it satisfy 4th A probable cause and particularity for and of the warrant o 1 probably cause req. proof of fair probability that contraband or evid. Of a crime will be found in the area searched. Allows enough info(evidence) for a independent magistrate to conclude that there is probable caused to issue the warrant. hearsay ok here, informants tips (even if info is anonymous) fed. Test : is sufficiency of tip corroborated enough info in the tip by po-po to allow the magistrate to make a common sense practical determination that probable cause exists, totality of the circumstances test tougher agular spinelli - test exists informants basis of knowledge and tipsters veracity or reliability o 2 particularity items to be seized places to be searched reliance in good faith of a defective warrant four exceptions that prevent this affidavit supporting warrant is so lacking that no reasonable officer could rely on it so facially deficient in particularity that no reasonable officer could rely on it.

Affidavit that contains knowing or reckless falsehoods necessary to the probable cause finding. If magistrate that issues the warrant is biased in favor of prosecution. B execution of warrant o did officers comply with the terms and limitations of the warrant warrant itself controlling (if warrant is good) not lookin in containers too small for items to be seized etc. o did officers comply with knock and announce rule officers must announce presence and purpose Exceptions Unless officer reasonably believes Futile Dangerous potential attack upon police. Inhibit the investigation destruction of evidence.

III is search / seizure ok under the 4th A without a warrant, does it satisfy the 4th A. Eight categories are ok - ESCAPIST E exigent circumstances o Ct recog. in: 1) effervescent evidence evid that with dissipate or disappear in the time it takes to obtain warrant. Finger nail scrapings, blood tests (DUI). 2) hot pursuit can enter suspects home or third party home, any evid. of crime in plain view is fully admissible 3) emergency aid exception reasonably ok to enter to provide emergency aid to those injured or threatened with injury. S search incident to arrest o Arrest is a magic moment 4th A. rights immediately diminish. Has to be lawful arrest. 2 justifications officer safety and need to preserve evidence. Contemporaneous req. search must be contemporaneous with time and place with the arrest. Geographic scope wing span of arrestee (body,

clothing and any containers within the arrestees immediate control without regard the offense resulting in the arrest. C consent o Valid consent must be voluntary and intelligent. o Officers do not have to tell that they have right to refuse consent to make it qualify for intelligent. o Allows search only in explicitly allowed areas. o Consent valid from one with no authority to give consent if the police reasonably believe that the person has authority. o Any cotenants may allow search of common areas. Conflicts objecting party can block search of common areas. A automobile o Must have probably cause that evidence of crime or contraband is in vehicle. Can search ENTIRE vehicle (includes trunk and all containers that may reasonably contain items searched for). o Incident to arrest car interior + containers, but not trunk. Location of suspect, if arrestee has been secured, can you lawfully search the vehicle only if officer has reasonable belief that the vehicle may contain evid. related to the crime for which the arrest was made. (else need a warrant) P plain view o Commonly used. Three req. Lawful access to the place from which the item can be plainly seen Lawful access to the item itself Criminality of the item must be immediately apparent I inventory o Two contexts, three req.: 1) juris regulations must be reasonable in scope, 2) search must comply with regulations, 3) search must not be a pretext for a unlawful investigatory motive. o Booking search o Vehicle impoundment S special needs? 1985 touched, 1989 decided

o Special needs of law enforcement, gov. officials, or school officials that go beyond a general interest in law enforcement. o Warrantless random drug testing (RR employees following accident, customs agents responsible for drug interdiction, public school children who participate in ANY extracurricular activity.) suspicionless drug tests not permitted when primary purpose is to gather criminal evid. for law enforcement purposes. o Warrantless search of gov employees desks and files to investigate work related misconduct. o Public school childrens effects to investigate violations of school rules. CANNOT search body/clothing. o No 4th A rights at the boarder for routine searches of persons or effects. T Terry stop and frisk limited doctrine. o Does not req. probable cause, minimal invasion of privacy. o brief detention or seizure for the purpose of investigating suspicious conduct o when are you seized?: when a reasonable person would not feel free to leave or decline a officers request to answer questions. If you voluntarily enter a confined area and police follow = not a seizure. Presumption of non-seizure. Three factors that push it to seizure: Officer brandishes weapon Officer tone and demeanor Whether individual was told they can refuse consent. Someone being chased only becomes seized if they voluntarily stop, or officer physically restrains individual. Traffic stops everyone in vehicle is seized. Subjective officer intent does NOT matter. Dog sniffs not 4th amendment searches! So long as it does not extend the period of the stop unreasonably. (not hours)

o Frisk pat down of body and outer clothes for weapons justified by belief that suspect is armed and dangerous. Weapons can always be seized. Contraband can also be seized if immediately recognized as contraband without physical manipulation. Can frisk car searching passenger cabin of car in which a weapon may be hidden in the car. Protective sweep of in home arrest can search closets or immediately adjoining areas for criminal confederates. To search farther, reasonable suspicion that those areas harbor dangerous individuals. o Reasonable suspicion standard, specific and articularable facts that suggest that criminal acts are taking place. frisks that suspect is armed and dangerous. o Stops and frisks must have separate analysis. IV extent to which evidence gathered in search or seizure that violates 4th is admissible. A) Exclusionary Rule physical or testimonial evid obtained in violation of 4th amendment (constitution) is inadmissible in court. B) Carve outs from this rule o Cannot be used in case in chief Can be used in cross examination for impeachment purposes. o Knock and announce failure to comply does not exclude found evidence. o Offices reasonable mistakes in process of executing warrant evid can still come in provided mistake in execution is reasonable. C) fruit of the poisonous tree: o Secondary or derivative evidence from primary violations of 4th amendment. o Independent source of evid. frees evid. from this doctrine. o Inevitable discovery where evid. would have necessarily have been discovered through lawful means.

o Attenuation free will is restored (breaks causal chain) by the passage of time or intervening events. D) law of arrest when arrest occurs for prosecution or interrogation purposes. o De Facto arrest if police compel someone to come to station house for questioning OR fingerprinting. o Standard of proof is probable cause. o Under 4th amendment, you can be arrested (custodial arrest) for all offenses o Do not need warrant to arrest in a public place, only in home, requires arrest warrant. To arrest in a 3rd party home need both search warrant and arrest warrant.

V A) 5th amendment due process clause confession is a product of police coercion that overbears suspects will. B) 6th amendment right to council express guarantee o Limiting factors Attaches at formal charging NOT arrest Offense specific, applies only to charges filed against you Waiver must be knowing intelligent and voluntary

C) Miranda rights o Implied rights from self incrim clause of 5th, not express o Four Core warnings Right to remain silent Right court appointed attorney o When Miranda kicks in Custody in custody when atmosphere objectively viewed is characterized by police domination and coercion so that suspects freedom of action is limited in a significant way. Interrogation any conduct the popo knew or should have known is likely to illicit a incriminatory response.

Spontaneous statement not a interrogation product. Not routine booking questions. Questioning prompted by immediate concern for public safety is excepted from Miranda warning o Waiver burden on prosecution to prove by a preponderance of the evidence. Knowing and intelligent knows the nature of rights, and consequences of abandoning them Voluntary not the product of police coercion. Express or Implied waiver Express in writing Implied by conduct if Miranda warned and understands, subsequent questioning and response establishes implied waiver of right to remain silent. o Right to remain silent to kick in must state that you want to invoke the right. Police must scrupulously adhere to right cant badger, must wait to resume questioning, must obtain Miranda waiver to question further. o Right to council when invoked by asking for lawyer sufficiently clear that a objective officer would understand it to be a request for council, all interrogation must cease unless initiated by suspect during custody, and extends to two weeks past release. NOT offense specific. Popo cannot question about ANY criminal activity. o Limits of exclusion under Miranda Statements obtained in violation can be used on cross of (not 3rd party witnesses)(not case in chief). Failure to give Miranda warnings does not poison the physical fruits of the suppressed statements so long as they were voluntary. (not torture statements) Subsequent statements after Miranda are admissible even if made after inadmissible un-Mirandized

statements provided that they are not unduly offensive to due process (not involuntary, not coerced) After introduction of evid. statement later found to be violative of Miranda, does not allow a new trial if govt. can prove beyond a reasonable doubt that the error was harmless.

5/6/2012 12:59:00 PM

5/6/2012 12:59:00 PM