4th Amendment
Reasonableness Clause RULE: The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated; AND
Warrant Clause RULE: No Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
4A QUICK CHECKLIST
1. Did the govt act? (Snitches can be govt agents too)
2. Does the Constitution apply? (Search of P-H-P-E?)
3. Does the D have standing to bring the claim?
a. No Standing E.g.: D in someone else's house, no intention to stay overnight, so no
reasonable expectation of privacy. (Carter)
4. Was there a search or seizure? (Note where there is an “assumption of risk” (E.g. Shared bag w/
cousin; Statements and stuff given to a bank)
a. Katz Test (search test): Whether a person exhibited an:
i. Actual expectation of privacy; and
ii. Whether society recognizes that privacy as reasonable.
1. (EXL: D’s subjective expectation of privacy must be objectively
reasonable.)
b. Jones Test (search test): PROPERTY BASED APPROACH
i. 1) Trespass of constitutionally protected area; AND
ii. 2) Collection of information
1. MUST INVOLVE A PHYSICAL INTRUSION COMPONENT
2. E.g. Katz phonebooth, ADD CASES???
c. Seizure Test: 1) D submits to cop authority; OR 2) D makes contact w/ cops after not
submitting to authority; OR 3) The Cop physically subdues or restrains the person.
i. STANDARD: Totality of the Circumstances – reasonable person would NOT believe
that he was free to leave. (CASES???)
ii. NO SEIZURE WHERE A PERSON DOES NOT SUBMIT TO A SHOW OF AUTHORITY
(Drayton)
d. Seizure of Property: Occurs when there is a meaningful interference w/ D’s property
rights.
i. STANDARD: ??? (FLESH THIS OUT – CASES???)
ii. Property is seized if the govt assumes possession and control of the property.
1. EXCEPTION: NO seizure where an object is DISCARDED OR DROPPED by an
individual doing the race from the cops.
a. EXL: “Any object discarded or dropped by an individual who is
fleeing from the cops is NOT the product of a seizure AND is NOT
itself seized.” (Hodari)
5. Was the search or seizure reasonable?
a. Did Cops have adequate grounds (amount of evidence)  Probable Cause; Reasonable
Suspicion; etc. (CASES???)
b. Even w/ Evidence, did cops obtain a warrant?
i. IF YES:
1. Based on probable cause supported by oath or affirmation?;
2. Neutral and detached magistrate?;
3. Sufficient Particularity?;
a. Enough info and detail that nothing is left to the discretion fo the
cops executing the warrant. (Public Policy – Prevents “general
searches”)
i. I.e. There must be NO room for SUBJECTIVE JUDGMENT
about what the cop is looking for.
4. Correct form?; and (idk if this is relevant on exam)
5. Executed properly?
a. W/IN THE SCOPE OF THE WARRANT?
ii. IF NO  Was there a valid reason (exception) for not obtaining the warrant?
(SPACES)
1. Exigent Circumstances?;
2. Ongoing emergency?;
3. Search incident to a lawful arrest?;
4. Terry stop?;
5. Automobile Exception?;
6. Inventory search?
iii. Was the search valid at it’s inception and in its scope?
1. Was there any fuckery before the warrant was obtained? (Murray)
2. CASES???
6. If 4A Violation, What is the Remedy?  Does the exclusionary rule apply?
7. Is there an Exception?
EXL: LEAD W/ “4A protects people, not places.” (Katz)
1) Was there government action?
- Any and all govt agents including fed and state:
o Agent of the Government Test Factors:
 1) The degree of govt participation, encouragement, knowledge, or
acquiescence in the act; and
 If the snitch goes beyond the scope (takes the initiative) to get more
evidence for the govt, he is STILL A GOVT AGENT.
 2) The employee’s motivation. (I.e. Did cops incentivize them?)
o SNITCHES COUNT AS GOVERNMENT AGENTS – EXL: Indirect and surreptitious
interrogation. (Massiah)
Administrative Agents: must follow the same rules as cops for the most part some exceptions
- Housing Inspectors: (Camara)
o Lower STANDARD of Probable Cause. Only need a statute to authorize searching the
whole building, not one particular area.
- Public School Officials: (TLO)
o Public School Officials (teachers, principals, etc) are considered government actors for
4th amendment purposes
o Only need Reasonable Suspicion, not Probable Cause
o
JUSTIFICATION: Determining probable cause and obtaining a warrant is not within the
school official’s job and skill set. ALSO, the search is being done for school safety
reasons, not for cop reasons.
2) Does D have standing to bring the claim?
- Not really called Standing, Is D raising violations of his own rights or someone elses?
- To bring 4A violation claim, right to privacy MUST belong to the person claiming the violation
(Rakas)
o Car Passengers:
 Illegal Stop: EVERYONE in the car has a suppression claim;
 Illegal Search: If the STOP was LEGAL but the SEARCH was ILLEGAL then the
passengers do NOT have a suppression claim. You MUST have a “POSSESSORY
INTEREST.” (EXL)
 Did D have: 1) A reasonable expectation of privacy?; 2) A Possessory Interest.
o House Guests: One who is legitimately on the premises may challenge 4A violations.
CANNOT be a temporary guest. (TOOTHBRUSH) (Carter)
o Complication: D1 loans car to D2, D2 is flashed while driving, does D1 have a right to
assert standing based on his property right?
 Court would likely say no, not usually. D1 would need to have: 1) A Reasonable
Expectation of Privacy; and 2) A Possessory Interest. Reduced (or none at
all???) REP in the car or in one you loan to someone else.
3) Does the constitution apply?
Is this a search of a P/P/H/E?
- Persons: Physical Body; Clothing attached to body; Intangibles such as conversation;
- Papers: Personal items; Letters; Diaries; and Business Records;
- Effects: Catch-all for residual things. Cars are here, but NOT “property” generally;
- Houses: ANY structure used for residence;
o Even if temporary (Carter);
o Curtilage (Jardines), (Test) IS IT CURTILAGE TEST?
 1) Distance from home to the place claimed to be curtilage;
 2) Whether the area is w/in an enclosure surrounding the home;
 3) Whether the area is used for domestic activities;
 4) The steps taken by the resident to protect the area from observation by
people passing by.
o Backyards and garages.
o Non-PPHES: Curb of house; Open fields; Areas outside curtilage which are unoccupied
or underdeveloped. Curb w/ trash is NOT w/in the Curtilage - Greenwood)
- KEY IDEAS: Arrest Warrant v. Search Warrant:
o Arrest Warrant: 1) Protects against unreasonable SEIZURES; 2) Authorize ONLY looking
for a person in places that the person could reasonably be.
 IMPORTANT: Authorizes ENTRY into the home of a person named in the
warrant to make the arrest, provided the cops REASONABLY believe that the
person is home.
o Search Warrant: 1) Protects against unreasonable SEARCHES; 2) Authorizes a search of
specified items in the places specified in the warrant in the places they could
reasonably be.
o Public Policy: 1) Check cop power; 2) Involves a neutral party.
-
Search w/o a warrant is presumed unreasonable (per se???)
4) Was there a Search or Seizure?
SEARCH
Katz Test: Whether a person exhibited an:
1) Actual expectation of privacy; and
2) Whether society recognizes that privacy as reasonable.
Jones Test: Trespass of constitutionally protected area + collection of data
- Must involve a Physical Intrusion component
o E.g. Katz phonebooth,
Determining whether there is a reasonable expectation of privacy;
- Reasonableness: (Objective Balancing Test) Whether society recognizes that privacy as
reasonable. The promotion of a legitimate state interest v. Intrusion on an individual’s 4A rights.
Places w/ Reasonable Expectation of Privacy:
- House (Olson);
o REP Extends to 1) Curtilage; 2) Buildings attached to home; and 3) Any room used like a
residence.
o Mobile Homes and RVs: Does NOT extend to these, b/c of the MOBILITY of them and
risk that evidence would disappear while a warrant was obtained. (Houghton)
o Guest in another’s house: No REP if there for commercial reasons; REP exists if staying
overnight. (Carter).
o No rare technology to search, if it’s not available to the general public, and would have
been unknowable w/o physical intrusion, then search and presumptively unreasonable
w/o a warrant. (Kyllo)
- Locked trunk-footlocker, Luggage (Kyllo);
- Student’s belongings in school;
- Hotel room (Jeffers);
- House if you are an overnight guest (Carter);
- Must have LEGITIMATE EXPECTATION OF PRIVACY (Jones)
Places w/o Reasonable Expectation of Privacy:
- Open fields (Oliver);
- A building where someone can see inside, from a position where they can lawfully be;
- Car (EXL Reduced REP);
o Individuals have a reduced expectation of privacy in their cars (Chambers). They are
used in public so everyone can mostly see inside.
- Public;
- Bank – giving them your documents (EXL Reduced REP);
- Info made accessible to a 3rd party (Miller);
o (E.g. Bank documents; Trash)
- False Friend/ Snitch (Jones);
o No REP when you talk to others (Hoffa). You run the risk that they will communicate
that info to the cops.
-
o EXCEPTION does NOT apply when overheard by eavesdropping.
Stuff in shared bag (Frazier - Common Authority);
o EXL: Assumption of risk w/ common authority
GPS TRACKER: It is NOT a search to use a tracker to observe movements on public roadways if the
police do not trespass on a person’s property in installing the device. By moving on the public
roadways, the supplier assumed the risk that police would be able to track those movements. (Knotts)
- EXCEPTION: Cannot use GPS to see movement within a home (Karo)
SEIZURE
Seizure Test (Person): 1) If D has made contact w/ cops after NOT submitting to authority; OR 2) D has
submitted to cop authority.
- STANDARD: Totality of the Circumstances – Reasonable Person would have believe that he was
NOT free to leave. Police pursuit is not a seizure.
o There must be a physical application of force by the officer OR a submission to the
officer’s show of force. It is NOT enough to just order a person to stop. (Terry stop)
- Mendenhall Test: Objective STANDARD – Would a reasonable person understand that he or
she is free to leave/ refuse when asked to consent to a search by the cops?
- Arrest: Must have Probable Cause (STANDARD)
Seizure Test (Property): Occurs when there is a meaningful interference w/ the D’s property rights
(possessory interest in that property). (Jacobsen)
5) Was the Search or Seizure Reasonable?
WITH A WARRANT
STEP 1:
Supported by Probable Cause? (If not PC, then it MUST be an exception w/ RS) The facts and
circumstances w/in the arresting cop’s knowledge and of which they have reasonably trustworthy info
are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed. (Draper)
- STANDARD OBJECTIVELY REASONABLE – REASONABLE COP. Nothing subjective matters EXCEPT
the cop’s personal experience to help w/ his observations.
- Basis for Probable Cause:
o 1) Direct Evidence (Personal Observation);
o 2) Hearsay/ Snitches: Gates Totality of the Circumstances Test: Reliability/ Veracity of
snitches - case-by case basis, requires the magistrate to balance the relative weights of
all the various INDICIA OF RELIABILITY (and unreliability) of a snitch’s tip. FACTORS:
 1) Basis of Knowledge;
 2) Reliability of info;
 3) Self-verifying info; and
 4) Corroboration of future behavior;
 Did cops independently corroborate the tip?
 5) Aguilar; Spinelli Factors: Magistrate looks to the
 1) Veracity/ reliability of the snitch; and
o “General Credibility” of the tipster
 2) How the snitch came to know the info.
o
o
HIGHLY RELEVANT in determining the value of a tip, but are
NOT treated as requirements.
3) Anonymous Tips: Seldom demonstrates the snitch’s basis of knowledge or veracity to
justify a search/ seizure (J.L.)
 (BUT SEE – Prado Navarette) drunk driving anonymous tip was sufficient b/c
SPECIFIC DETAIL provided rose to sufficient indicia of reliability, giving cop
Reasonable Suspicion
 IMPORTANT – Should be corroborated by INDEPENDENT POLICE
ACTIVITY
 EXL: “If an unidentified witness is the source of information in an
affidavit in support of a search warrant, the witness’s reliability must be
independently demonstrated in order for the warrant to issue.” (Gates)
STEP 2:
If no PC, did the cops rely on a defective warrant?
- WARRANT ELEMENTS
1. Based on probable cause
2. Supported by oath or affirmation?;
3. Neutral and detached magistrate?;
4. Sufficient Particularity?;
a. Enough info and detail that nothing is left to the discretion of the cops executing the
warrant. (Public Policy – Prevents “general searches”)
b. I.e. There must be NO room for SUBJECTIVE JUDGMENT about what the cop is looking
for.
STEP 3:
Was the Warrant Properly Executed? - W/IN THE SCOPE OF THE WARRANT?
1. Knock and Announce: Cops must do this UNLESS:
a. Exigent Circumstances; OR
b. Cops have reasonable suspicion (STANDARD) that it would be:
i. Dangerous;
ii. Futile; or
iii. Would inhibit the effective crime investigation (spoliation);
1. ^^^^ Must wait a bit (15-20 seconds)
2. Search Principles:
a. Containers: Cops can search containers large enough to hold evidence of the object of
the search.
b. Can take objects not described in the warrant, if they have (STANDARD) probable cause
to believe it is a seizable item.
i. E.g. contraband, or fruit of the crime, instrumentality or evidence
c. Search of Person: A warrant may authorize the search of a person but it must be
explicit. – Public Policy:
i. 1) Avoiding flight of an occupant with evidence sought;
ii. 2) To reduce the risk of bodily harm to officers and others; and
iii. 3) To facilitate the search by reducing the detained occupants to open locked
containers or doors.
SEIZURE SCOPE: May stop a person temporarily (long enough to investigate) for purpose of
investigating a crime.
SEARCH SCOPE: If after valid stop, the cop also has Reasonable & Articulatable suspicion that the
person is armed and dangerous, Cop MAY conduct a brief pat down ONLY for the purpose of finding
weapons.
WITHOUT A WARRANT
EXCEPTIONS TO THE WARRANT REQUIREMENT – SPACES
S – Search Incident to Lawful Arrest;
P – Plain View;
A – Automobile;
C – Consent;
E – Exigent Circumstances;
S – Special Needs.
No Warrant – No Justification Needed (STANDARD)
CONSENT: (Consent Master)
(EXL) NO REP if Valid Consent, Consent MUST be voluntary.
1. Voluntariness TEST: Analysis of the voluntariness of a consent to a warrantless search where no
probable cause exists, you must look to the Totality of the Circumstances (STANDARD).
(Bustamonte)
a. Step One: Is the suspect in custody?
b. Step Two: Is the suspect being interrogated? (If Custodial interrogation w/o Miranda
warning, then consent is coerced).
c. Step Three: If NOT Custodial Interrogation, voluntariness of the consent is based on the
Totality of the Circumstances
i. FACTORS: Level of Education; Level of Intelligence; Lack of any effective
warnings to a person of their rights (Knowledge of right to refuse);
Voluntariness of any statements carefully scrutinized to determine whether it
was in fact given voluntarily.
1. Right to Refuse: Knowledge of the right to refuse consent is one factor
of many to consider, it is not a prerequisite to proving that consent was
given voluntarily. (Bustamonte)
2. Lying about already having a warrant negates voluntariness of
consent.
ii. Public Policy: No coercive environment, so different from custodial
interrogation at cop shop.
2. Common Authority Consent:
a. Absent Party: The consent of one who possesses common authority over premises or
effects is valid as against the absent, nonconsenting person with whom that authority is
shared
i. The Person giving consent had Actual Authority to do so. (Matlock)
b. Apparent Authority: Consent is valid if given by a person who the cops REASONABLY
BELIEVE is allowed to give the consent (co-habitant, etc.) (Rodriguez)
i. If one party is there but not responding (sleeping) and the other party gives
consent -->
ii. (STANDARD) Cops may enter so long as they reasonably believed the
consenting party had authority to consent. (MISTAKE ISSUES)
c. Conflicting Consent: If one party says yes and the other party says no, the cops may
NOT enter (Randolph).
i. UNLESS – If the “no” party is removed (arrested) then cops can search.
d. Scope Limitation: Can be limited in scope.
i. E.g. 3 dudes live together, Matt’s GF stays over all the time, she consents to a
search, probably ONLY common authority over the BF’s bedroom and common
areas.
PLAIN VIEW (No Justification Needed) (Plain View Master)
Plain View Doctrine: No REP (Hicks). If Cops are in an area they are legally entitled to be (no 4A
violation) and they can see something then perform search (get warrant???) (Carter)
- Need not be inadvertent. No REP in garbage (Greenwood)
- If your building is open to visibility to the sky = plain view = NO WARRANT NEEDED (Riley)
- Jacobsen Plain View Test:
o 1) The seizing Officer is Lawfully present where the search and seizure occur;
o 2) The evidence is in plain view; and
o 3) The evidence seized is CLEARLY INCRIMINATING.
PRETEXTUAL STOPS (No Justification Needed)
- Cop’s subjective intent does NOT matter, as long as there is an objective reason (STANDARD)
that they could pull the driver over.
No Warrant – PROBABLE CAUSE (STANDARD) (Probable Cause Master)
PROBABLE CAUSE: The facts and circumstances w/in the arresting cop’s knowledge and of which they
have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed. (Brinegar)
EXIGENT CIRCUMSTANCES – PROBABLE CAUSE (Exigent Master)
Exigent Circumstances: Allow for Warrantless Searches if homes/ other places as long as they have
Probable Cause. (Bustamonte)
- “Impracticable under the circumstances” to get a warrant.
- Officer Created: Officer created exigency is allowed so long as the conduct is reasonable, and
the cops do NOT violate 4A prior to entry.
- EMERGENCY FACTORS:
o 1) The seriousness of the offense; and
 Exigency Circumstances CANNOT be found for non-criminal acts or low level
criminal offenses. (Welsh)
o 2) The danger posed by waiting until a warrant is secured.
- Enter a House w/o Warrant: (King)
o 1) Deliver emergency aid to an individual;
o 2) Pursue a fleeing suspect; or
o 3) Prevent the imminent destruction of evidence.
SEARCH INCIDENT TO LAWFUL ARREST – PROBABLE CAUSE (SILA MASTER)
- Valid arrest (correct probable cause) + No suspicion needed.
- Cops can just search a person incident to lawful arrest AND THE AREA IN THEIR IMMEDIATE
CONTROL (WINGSPAN) - no real justification needed b/c the ruling in Robinson basically said
that they are just allowed to search.
- IMPORTANT - STANDARD Cops don’t really need to articulate the: 1) Potential danger to cop
safety; or 2) Spoliation of evidence.
- TEMPORAL DISTANCE: If the search is performed at a later time, it is NOT considered a SILA.
o EXCEPTION – Cars, Inventory search (Chambers)
- Automobile SILA – Cops can search a vehicle after the occupant’s recent arrest ONLY when the
arrestee is:
o 1) Unrestrained; and
 EXCEPTION: cops may search the PASSENGER COMPARTMENT of a car, EVEN IF
ARRESTEE IS RESTRAINED, incident to lawful arrest, if they reasonably believe
that EVIDENCE OF THE CRIME OF ARREST may be located there.
o 2) W/in reaching distance of the passenger (Wingspan Rule). OR EVIDENCE EXCEPTION
ABOVE
 Glove Compartment is in play and objects w/in it that could contain the object
of the search (???) (Belton) –
 Applies EVEN IF the person is not in car when arrested, but is still in
close proximity.
 OFFENSE SPECIFIC???. IS THIS RIGHT???
 Public Policy: Rationale is cop safety and stopping spoliation of evidence.
o Citation: CANNOT perform a search incident to a citation if arrest was a possible choice.
 I.e. There can be no SILA w/o an arrest.
o SCOPE - cops may search the passenger compartment of a car, incident to lawful arrest,
if they reasonably believe that EVIDENCE OF THE CRIME OF ARREST may be located
there.
- Protective Sweep: Cops may also make a protective sweep of the area beyond D’s wingspan if
they believe accomplices may be present.
AUTOMOBILE EXCEPTION – PROBABLE CAUSE (Automobile Master)
- Cops may conduct an on-the-spot, warrantless search of a car in a public place if they have PC
to believe that a car contains:
o 1) Contraband; OR
o 2) Fruits, Instrumentalities, or Evidence of a crime. (Carroll)
- SCOPE: The cops can search anywhere in the car where the item might logically be, including the
engine block, upholstery, trunk, and undercarriage.
o I.e. Any container that could have the “Object of the search”
- Public Policy: Cars are mobile, gotta stop bad guys (lol) so let cops search.
INVENTORY SEARCH – PROBABLE CAUSE
- Purpose: The purpose MUST be for something OTHER than an investigatory purpose (gathering
evidence). E.g.
o 1) Cop Safety; 2) Public Protection; 3) Inventory items to protect your personal stuff; 4)
Protect cops against lawsuits.
-
Limitation: Limited to places where they already have an administrative plan in place.
Can be done for cars (Opperman) and for personal effects upon jail entry.
No Warrant – REASONABLE SUSPICION (STANDARD)
REASONABLE SUSPICION: Does not require a belief that the person is committing a SPECIFIC crime,
rather, just a suspicion that the person is committing or about to commit ANY crime.
- I.e. Must articulate something MORE THAN inchoate and unparticularized suspicion or hunch.
There must be some minimal level of objective justification for the police conduct.
o Lower than Probable Cause.
- IT CAN ARISE FROM ANONYMOUS TIPS (White)
TERRY STOP AND FRISK – REASONABLE SUSPICION (Specific, articulatable facts)
1) Terry Stop; and
 STANDARD: Specific, articulatable facts (Reasonable Suspicion) that justify a reasonable
person’s suspicion that the person stopped is committing or is about to commit a crime.
2) Terry Frisk (2 parts here).
 1) The Frisk: Standard: May conduct a brief and cursory pat down of the individual’s
outer clothing in search of a deadly weapon IF the (STANDARD) Totality of the
Circumstances would justify a reasonable person to suspect that the individual poses a
danger to the officers or others.
 Plain Feel Doctrine: A cop who is lawfully frisking someone under Terry
may seize an item whose contour or mass makes its identity as a
dangerous weapon or contraband immediately apparent. (Dickerson)
 2) Seizure from Frisk: Reasonable Suspicion that a suspect is armed and dangerous
justifies ONLY the frisk, ANY SEIZURE must be supported by Probable Cause.
(STANDARD)
 I.e. Evident outline of a dangerous weapon or contraband.
 BALANCING APPROACH is used a bit.
SPECIAL NEEDS SEARCHES – REASONABLE SUSPICION
Schools: Only need to a Reasonable Suspicion (TLO). Students have an expectation of privacy while at
school. However, there is a lower standard:
- (STANDARD) Reasonable Suspicion. Public Policy:
o DO NOT NEED a Warrant to search b/c it would frustrate the purpose
o Suspicion is based on reasonableness b/c staff has responsibilities other than law
enforcement.
- Scope and Inception – search must be reasonable at scope and inception.
o I.e Can search backpack, pockets, and some outer clothing.
- Strip Search: CANNOT conduct strip search w/o specific suspicion that a student is hiding
evidence in intimate places. (Redding)
- Drug Testing: Privacy interest allegedly compromised by the drug testing.
o The excretory function traditionally shielded by great privacy, thus what is the character
of the intrusion
o Allowed in some cases. The Court says that Peeing into a cup is a minimal intrusion of
privacy.
o Key idea: They are trying to combat the problem that appears at school (whether a
real issue or not)


And they are not conducting the tests for law enforcement purposes, instead for
safety
And the punishments are tailored to their concerns.
People:
- Jail Searches: All ppl who are arrested/ processed into jail are subject to search.
o (EXL) No Suspicion needed. The legitimate penological interests of COs in conducting
strip searches is given deference by the court. (Florence)
o To overcome the deference granted to COs, there must be substantial evidence that
demonstrates their policies are unnecessary or unjustified as a solution to jail security.
- Drug Tests:
o Obtaining Drug Test results for Pregnant Women: NOT allowed under special needs
circumstances b/c the main focus is for law enforcement reasons.
o Drug test for promotions for Customs agents: DO I NEED THIS???
Buildings (Commerical): Lower STANDARD of Probable Cause. Only need a statute to authorize
searching the whole building, not one particular area.
- Area Search Probable Cause: PC for an area code-enforcement-inspection exists if reasonable
legislative and administrative standards for conducting the area inspection are satisfied w/
respect to a particular dwelling.
- These standards depend on the nature of the municipal program being enforced. They may be
based on - FACTORS: (Camara)
 1) The passage of time;
 2) The nature of the building; or
 3) The condition of the entire area.
o Warrant: Should seek warrant first. (???)
6) Exclusionary Rule – If there was a 4A violation, what is the remedy?
EXL: LEAD W/ “4A does NOT have a provision for punishment. No “unreasonable search and seizure”,
but no “if it happens then…”
Silverthorne: Said that exclusionary doctrine applies, basically creating a constitutional
provision where none existed
EXL: The Exclusionary rule is “part and parcel“ of 4A, it’s purpose is to provide a DETERRENT for police
misconduct and constitutional violations (not magistrates).
- EXL: Exclusionary rule ONLY applies where its ability to deter cop conduct OUTWEIGHS the cost
to society of letting criminals go. In Knock and Announce, excluding evidence provides little
deterrence to the cops and has a significant detrimental effect on society. (Hudson)
- EXL: Also, leaving P in the SAME POSITION he would have been in BUT FOR the constitutional
violation.
Exclusionary Rule FACTORS – It does NOT apply UNLESS:
1) D shows his rights have been violated; and
2) Cop’s culpability involves > negligence
a. I.e. Systemic Negligence; Recklessness; or Intentional Conduct.
b. Knock And Announce: Exclusionary rule does NOT apply to knock and announce
violations
Exclusionary Rule Public Policy
- Seeks to put P in the same position they would have been in w/o the constitutional violation.
P should not be in a better position or worse position than they would have been. (Nix)
- Cost-benefit analysis is introduced for the first time for the Exclusionary Rule. Exclusion of
evidence (possibly letting a criminal go) is a COST (Hudson)
4A Violations
Miranda Violations
5A Violations
6A Violations
Exclusionary Rule
Fruits Excluded
Weeks
Mapp
EXCLUDED???
Ashcroft
Spano
Witness
Testimony
ADMITTED
Statements
EXCLUDED from
case-in-chief
Miranda
ADMITTED
EXCLUDED
Statements
EXCLUDED from
case-in-chief
Massiah
EXCLUDED
Physical Fruits
Excluded UNLESS:
Taint Attenuated;
Independent
Source; Inevitable
Discovery; or
Good Faith
ADMITTED
ADMITTED
Patane
EXCLUDED
EXCLUDED
ADMITTED
EXCLUDED
ADMITTED
Impeachment of
Ds (Not defense
Ws)
o
o
Attenuation:
 Streiff: Unconstitutionally seized evidence is admissible if:
 1) Lack of flagrant impropriety;
 2) Lack of temporal proximity; OR
 3) An intervening circumstance attenuates the chain btwn police misconduct and
the seizure.
Good Faith: (Leon)
 If Cops do what they are legally supposed to do (Probable cause, Warrant, Etc.) and it is
decided after-the-fact to not have been “reasonable” then the evidence will NOT be
excluded.
 Probable Cause: PC is NOT needed, just good faith reliance on a bad warrant.
 Exclusion FACTORS:
o The flagrancy of the cop misconduct;
o The purposes underlying the Exclusionary Rule (Deterrence); and
o Cost-benefit analysis Balance of exclusion.
 ASK:
 1) The cop MUST reasonably rely upon the search warrant while obtaining the
evidence;
 2) The judge must be neutral and detached; and

 3) The affiant must not have provided false information.
Exceptions: Good faith exception won't apply where there is: (Leon)
 BURDEN Preponderance of the evidence???
 1) Lies in affidavits (mislead Magistrate);
o STANDARD: Cop Knew or Should have known
 2) Absolutely no Probable Cause (e.g., anonymous tips alone w/o corroboration
or supporting evidence (J.L.); or
o STANDARD: No Reasonable Police Officer would rely on it.
 3) No particularity (facially deficient).
o STANDARD: No Reasonable Police Officer could assume it to be valid.
o I.e. If there is a significant risk that cops will search the wrong location,
then particularity is not met.
 4) Lack of neutral and detached Magistrate.
o
Inevitable Discovery:
 (Nix; Brewer?) P must show by a preponderance of the evidence (STANDARD) that the
info ultimately/ inevitable would have been discovered by lawful means, then the
evidence should be admitted into evidence.
 Public Policy: Exclusion puts cops in a worse situation than they would have been previolation, which is contrary to the interests of society.
o
Independent Source Doctrine: Is the illegal search the proximate cause of the discovery of the
evidence? (Silverthorne) (STANDARD)
 HOWEVER, if after violating the constitution, the gov’t can acquire the info through
another, independent and legal method, it becomes admissible.
 Initial unlawful search leading to independent-source can be overcome, generally
if cops possessed some info before like an anonymous tip or whatever. (Murray)
 If knowledge of them is gained from an independent source, they may be proved like any
others, BUT the knowledge gained by the Govt's own wrong cannot be used by it in the
way proposed.
 When cops come at evidence in 2 ways: 1lawful, 1unlawful – the evidence need NOT be
excluded as long as one of the ways was independently lawful.
5th Amendment
5A QUICK CHECKLIST:
1. Does 5A Apply? (Basically, 5A right to attorney gives you the right to an attorney for the whole
interrogation process)
a. Must be either: 1) Testimonial evidence; or 2) Communicative evidence.
b. IF NOT THEN GO STRAIGHT TO 14A ANALYSIS
2. If 5A Applies, was the statement voluntary?
a. Must be coerced in some way by a state actor. (Connelly)
b. Voluntariness Test– Totality of the Circumstances
i. Suspect’s will was overborne (Spano); or
ii. Suspect was physically compelled. (Brown)
c. Whether the suspect has the knowledge that he can refuse is NOT NECESSARY, it is just
1 factor. (Bustamonte???)
d. Cops can give false info so long as it does not rise to the facts of something like Spano.
(CASE???)
14A DUE PROCESS – Was the confession obtained in violation of Due Process?
ISSUE: Did the TACTICS used by the cops violate D’s fundamental rights protected under 14A (Life,
Liberty, Justice)
-
EXL: “Severe beatings to garner a confession clearly violate fundamental principles of justice
and therefore amount to a violation of due process.” (Brown)
14A DPC: 14A DPC requires that state action be consistent w/ fundamental principles of liberty and
justice.
Brown: Confessions induced by violence are not consistent w/ the Due Process Clause and such
evidence is therefore inadmissible at trial.
-
CONFESSION OBTAINED BY SEVERE BEATINGS = 14A DPC VIOLATION
Connelly: Under 14A DPC, a statement may ONLY be deemed involuntary and therefore inadmissible if
there was COERCION by the cops.
-
-
Coercion Test: (Spano)
o 1) Cops engaged in coercive conduct; and
o 2) The coercive conduct actually overbore the suspect’s will, such that the statement
was not the product of free choice.
Indirect Cop Conduct is NOT enough to suppress a confession.
Due Process (14A) v Fifth Amendment (Right to remain silent; Compelled self-incrimination)
5A is a trial right - it is not violated until a D is compelled in a criminal case to testify
5A Doesn’t kick in until the D is charged.
14A DPC is a restraint on police overreaching - government officials may deprive an individual of due
process even if she is never ultimately prosecuted for a crime
Due Process: kicks in pre-charges
Important: There is no constitutional problem w/ a crowd obtaining evidence
ANALYSIS
1. Look to the police misconduct mainly.
a. Involuntary under the Totality of the Circumstances?
b. Product of Cop Coercion?
i. Does it shock the conscience?
1. SHOCK: When cops lied to an attorney and continued to question the
client and told the client that the attorney did not want to talk to them.
The court ruled that this was NOT a due process violation b/c it did NOT
shock the conscience. (Burbine)
ii. Is it so contrary (egregious) to traditional and fundamental fairness?
1. EGREGIOUS: When Cops sent a snitch into the D’s hotel room to spy on
D's convos during the trial with his attorney, the court found that this
was NOT so egregious as to violate the 14th Amendment (Hoffa)
Harmless-Error Doctrine - Fulminante: As an initial matter, a finding of a coerced confession may be
made if an accused person faces a credible threat of physical violence by an agent of the gov’t.
- STANDARD: BOP on State - Beyond a Reasonable Doubt
- For a conviction to be upheld in spite of a coerced confession, the state must prove that the
admission of the confession was harmless error.
o I.e. State must show that admitting the confession did not contribute to the
conviction. On the balance of evidence, the state would have proved beyond a
reasonable doubt that D is guilty even w/o the confession. (EXL)
MIRANDA – Was the confession obtained in violation of Miranda?
Miranda Master
1) Custodial Interrogation
- ATTACHES AT THE BEGINNING OF THE CUSTODIAL INTERROGAITON – WATCH FOR
“PREMATURE INVOCATION”
- Custody: Whether, under the totality of the circumstances, a reasonable person would
objectively believe that the person was not free to leave. (STANDARD)
 I.e. “More than just not free to leave. It means isolated, coercive, subjecting an
individual to fear of isolation.” (McCarty)
 Ask if the Miranda concerns of coercive environment are present – COPSHOP
questioning is INHERENTLY coercive.
 Time: Traffic stops are brief, custodial interrogations are generally not.
 Other Factors (Kids): Custody for Miranda is an objective inquiry. For kids, a reasonable
child will feel more pressure than a reasonable adult to submit to cop questioning. This
matters in the analysis of whether they are in custody. (J.D.B.)
- Interrogation:
 5A Objective STANDARD;
 6A Subjective STANDARD;
 Questioning; OR
 Functional Equivalent of Questioning: Words and actions the cops should know are
reasonably likely to elicit an incriminating response from the suspect. (BrewerCHRISTIAN BURIAL THING)


OBJECTIVE TEST: As the "should have known" language implies, the test is mostly
objective.
o E.g. Innis: Should a reasonable cop have known that the statement/ action
was likely to elicit information.
Just listening is NOT interrogation (Kuhlmann)
2) Were Adequate Warnings Provided?
- 1) Miranda warnings OR
- 2) Their Equivalent: Cops do NOT have to read the entire thing, just convey the main points.
 Rather, all that is required is that the warning reasonably "convey to a suspect his rights
as required by Miranda (Innis)
- Ineffective Warnings: Did the cops engage in deliberate misconduct designed to render the
Miranda warnings ineffective (Two-step)
3) Waiver - Was there a valid waiver?
FACTORS: Govt must show by preponderance of the evidence (STANDARD) that the suspect’s waiver
was:
1) Knowing;
2) Voluntary; and
3) Intelligent.
Express Waiver: Factors above
Implied Waiver: An implied waiver arises when an individual, fully understanding their rights, acts in a
manner inconsistent w/ the INTENT to exercise them. (Berghuis).
o 1) Suspect voluntarily initiates “further communications, exchanges, or conversations w/ the
cops.” OR
 Comms: If D initiated communication of his own volition following his prior invocation
of rights, the requirements for a valid subsequent waiver of both 5A and 6A rights have
likely been met
 Voluntary Comms = Waiver of 5A and 6A
o 2) Where the suspect is (released) given a break from custody for at least 14 days, then taken
back into custody and given fresh warnings. (Shatzer)
Subsequent Waiver – Presumed Invalid: 5A Waivers after prior invocation are presumed to be invalid.
(NOT THE CASE W/ 6A, ONLY 5A!!!)
Break in Custody:
Two-Step interrogation (Seibert): If cops intentionally engaged in an unlawful Miranda two-step
interrogation; questioning a suspect without Miranda warnings, then questioning the suspect a second
time with Miranda warnings to get around Miranda protections) to obtain the woman’s confession, the
confession will be suppressed.
- Did the cops engage in deliberate misconduct designed to render the Miranda warnings
ineffective
- When an S is initially questioned w/o Miranda warnings and confesses, and then is read
Miranda warnings and repeats the confession, the second statement will NOT be admissible if
the court finds it effectively simultaneous w/ the first statement.
- Effectively Simultaneous Factors:
 1) Did the cops ask the same questions?;
 2) Temporal distance btwn the 2 statements; and
 30 minutes is likely NOT sufficient
 3) Did the suspect make the statements in the same place?
 4) Was there police misconduct? Deliberately doing it (MOST IMPORTANT FACTOR)
4) Did they invoke the right to Silence OR to Counsel?
Invocation: Must be 1) Express; and 2) Unambigious
- Thus, the Fifth Amendment protection against self-incrimination is only violated where the
incriminating statements are actually used “in any criminal case” against the speaker.
Silence
- Was it “scrupulously honored?”
o Cops can leave the interview and come back like 2 hours later, as long as the period of
time is long enough that they “scrupulously honored” D’s invocation of Miranda.
(CRIME-SPECIFIC) (Mosely)
o 14 day rule (scrupulously honored) ONLY apply to subsequent custodial interrogations
(Shatzer, Minnick)
Counsel:
- did S initiate further comm.?
o Once shield is up, it does not go down unless S initiates convo about crime.
 1) If he confesses – no further waiver is needed.
 2) If he talks about wanting to talk – waiver is needed.
 3) If he talks about random – this is not initiation
o 14 day period benefiting from counsel shield once it is up (invoked).
o Invocation cannot be ambiguous.
 Scope Limitation (IMPORTANT): Suspect can narrow the scope of the 5A Right
to Counsel by saying something stupid like “I won’t answer ?s about the
burglarly w/o an L.”
 Leaves the door open for cops to ask other crimes instead of having
Miranda apply for all crimes in the interrogation.
5) Do any exceptions apply?
-
Public Safety Exception: If public safety demands it, a suspect in cop custody may be question
w/o being read his Miranda warnings. (Quarles) (STANDARD - REASONABLE CONCERN FOR
PUBLIC SAFETY)
a. CONFESSION IS NOT ADMISSIBLE. The fact that the interrogation was prompted by a
reasonable concern for public safety does NOT override the fact that the confession was
a product of coercion. (Quarles)
b. For this public safety exception to apply, there must be an emergency situation that
poses a real and imminent threat to the safety of the public and/or the police that
requires immediate law enforcement action beyond the routine efforts directed at
solving a crime
6) Exclusionary Rule – Fruit of the poisonous tree
6th Amendment
Trigger: The start of adversary judicial proceedings. (Look for: Indictment; Charged with; etc.)
Statements:
6A QUICK CHECKLIST:
1. Does 6A apply?
a. Is there govt action?
i. MUST have govt action. Entire 6A applies to fed govt (4A)
ii. 6A right to counsel applies to the States, incorporated into 14A (Gideon)
b. Has the right attached?
i. Right attaches upon indictment (Massiah)
ii. OFFENSE-SPECIFIC ATTACHMENT: No 6A right for a crime that D has not yet
been indicted on
c. Has the right been waived? --> Knowing, Voluntary, and Intelligent waiver.
i. SILENCE DOES NOT = WAIVER
2. How does 6A apply?
a. Regarding a statement made by the D:
i. Once attached, the cops CANNOT deliberately elicit incriminating statements
outside of the presence of counsel (Brewer)
1. EXCEPTION: Mere Listening is NOT deliberately eliciting. (Kuhlmann)
3. Application: Do the facts of this case violate the D’s 6A right to counsel?
a. Did the cops deliberately elicit
i. By express questioning; OR
ii. It’s functional equivalent.
b. A statement from D;
c. Outside of the presence of counsel;
d. After invocation of 6A; AND
e. After indictment.