Architecture of Modern 4th
1.
2.
3.
4.
5.
6.
7.
8.
Categorize 4th
a.
Consensual encounter, Terry Stop, Traffic Stop| Arrest, Search
for Evidence
Did PO have RS or Probable Cause? Was the conduct jus�fied?
a.
Iden�fy type of intrusion
b. Iden�fy level of jus�fica�on
i. RS – required for Terry stop, Terry Frisk, Traffic stop
ii. PC – required for Arrest, Search for evidence, Traffic
stop
Did Police need a warrant?
a.
Warrant required to – search, enter homes to arrest
i. Subject to exigency excep�ons
b. No warrant required to – arrest in public, search incident to
arrest, to search vehicles for evidence, seize evidence in plain
view, or to conduct a terry stop
Did the police need a warrant?
a.
Warrant required to: | enter homes to search or arrest |subject
to exigency
b. No warrant required to: arrest in public | search incident to
arrest |to search vehicles for evidence |seize evidence in plain
view |or to conduct a Terry stop.
Did the police exceed their lawful authority (i.e., did the police stay ‘in
bounds’)?
a.
RS jus�fies a stop, but not always a frisk.
b. A good arrest jus�fies a search incident to arrest, but not
necessarily whole house.
c.
A warrant to search for a stolen lawnmower does not jus�fy
rifling desk drawers.
d. A ‘good’ stop may extend into ‘unreasonable’.
If there was an unreasonable search and seizure, should the evidence be
suppressed?
a.
Mapp requires exclusion with excep�ons
b. Excep�ons: Standing – If ‘you’ were not subject to
cons�tu�onal viola�on, ‘you’ do not have standing, e.g.,
warrantless search of someone else’s home does not let you
exclude evidence found there. | Inevitable discovery |
Impeachment | Good faith – Reasonable belief that an LEO
took ac�ons believing they were cons�tu�onal at the �me.
If warrant was required, were the prerequisites for a valid warrant
complied with?
a.
Was it issued by a neutral and detached magistrate?
b. Was there PC supported by oath or affirma�on?
c.
Did the warrant par�cularly describe (1) the place to be
searched or (2) items to be seized?
If warrant was not required, were the prerequisites for a valid warrant
complied with?
a.
Emergency Excep�on
i. Exigency
ii. PC
b. Search Incident to arrest
i. Lawful arrest
ii. Limited to reachable space
iii. Automobiles
c.
Automobile Excep�on
i. Motor Vehicle
ii. Probable Cause
d. Stop and Frisk (Terry Stop)
i. RS to believe criminal ac�vity is afoot
ii. RS to believe subject is armed and dangerous
e.
Administra�ve and Inventory searches
i. Non-criminal Purpose
ii. Limits on police discre�on
f.
Consent
i. Voluntary
ii. If third-party, property authority (actual or
apparent)
g.
Plain view Doctrine
i. Lawful Intrusion
ii. Item immediately apparent as contraband or
evidence
9. If a cons�tu�onal viola�on occurred, does the e-rule apply?
a.
Does subject have standing
b. Is the proceeding a criminal trial or other proceeding in which
the rule applies?
c.
Did the officers act in reasonable reliance of a warrant (or
otherwise act in good faith)?
d. Is the evidence offered solely for impeachment?
10. Does the deriva�ve evidence of doctrine apply?
a.
Is the item the fruit of the poisonous tree?
b. If so, does one of the excep�ons apply?
i. Atenua�on?
ii. Independent source?
iii. Inevitable discovery?
11. Evidence Suppressed
a.
Unreasonable search or seizure suppressed – (Mapp extends
to states)
b. Excep�ons: Standing, Inevitable discovery, independent source,
atenua�on, impeachment, GOOD FAITH -> excep�on to
suppression of evidence
Was there a Search?
*PO can search for evidence of crime/drugs even when no detainment or
custody
1. Reasonable Expecta�on of Privacy Test – If PO invades space protected by
REP = Search – KATZ
2. Trespass Test – If PO physically intrudes or occupies cons�tu�onally
protected area (for purposes of acquiring informa�on) = Search (JONES)
3. Vehicles – limited search when traffic �cket rather than arrest (ulterior
mo�ve doesn’t mater)
a.
RS armed  + search power  Protec�ve frisk OR Passenger
compartment (where might be placed)
b. PO can ar�culate factors which would lead officer to RS armed
 protec�ve search (Ex. Plain view doctrine)
c.
K9 while S lawfully detained + PC  can search w/o warrant
i. K9 cannot be used a�er cita�on work (cannot
prolong either)
d. Plain View Doctrine w/ PC  can search/seizure w/o warrant
4. Search is Incident to traffic cita�on  search not allowed - must have
reasonable suspicion or probable cause
5. Search Incident to Arrest – If lawful arrest search powers flow (1) search
of personal effects/containers on person Robinson; (2) search of
clothing/body bc every arrest subsumes privacy right; (3) search of
wingspan / grabbing area
a.
Of the person  can search body or containers on person
b. Effects  cannot search containers not on person
i. If search of container in home  warrant required
c.
Homes – A�er lawful arrest  can search within
wingspan/grabbing distance
i. O removes S from immediate area  can s�ll search
are where S had immediate control
ii. O restrained (HC)  only protec�ve sweep
d. Vehicles – If jus�fied arrest of anyone in/near vehicle  can
search arrestee
i. Mobility If PO has PC to believe evidence or
contraband in car  can search grabbing area w/o
warrant b/c incident to arrest
ii. O usually walks around w/ S w/o handcuffs
1. Search Incident to Arrest + Vehicle - Search requires arrest occurred of a
person in/near a car
a.
If (1) S is unsecured & can access interior or vehicle OR (2) PO
reasonably believes evidence for arrested offense may be found in
vehicle  can search wingspan, passenger compartment, &
containers
b. If PO reasonably believes S or passenger is armed & dangerous 
can search interior for weapons (not trunk)
c.
Plain view excep�on – If PO sees contraband  can seize (no
manipula�on)
d. Inventory excep�on – PO can search vehicles that are impounded
e.
May not search – under hood, trunk, digital devices (RILEY) unless
exigent circumstances
6. Digital Devices – Seize because search requires warrant absent exigent
circumstances
a.
Reasonable Expecta�on of privacy  search requires warrant
7. Home Search  grabbing area/wingspan
8. Protec�ve Search/Sweep – if secured S who could launch atack 
protec�ve search based on mere precau�on (RS or PC not required)
9. Tracking Devices - – Concealing a tracking device in chemicals purchased
by suspect and monitoring the transport of the chemical by vehicle outside
private premises, not a “search.” Suspect voluntarily shared vehicle
loca�on with the public.
a.
If a beeper, voluntarily put in chemicals by an informant, is used
to inform police that the chemicals are inside par�cular private
premises, the use of the beeper is a search requiring a warrant
and PC.
10. Airport – properly-trained drug-detec�ng dog  not a search
11. Garbage – Combing through garbage  not a search
12. Thermal Imager = Search b/c not widely used
13. Technological Informa�on Gathering – Shi� from Katz
a.
b.
Is the technology general public use – REP is taken into account
What is the nature of the informa�on that police obtain using
this technology?
i. Mass gathering of info can reveal private info may
be a search (mosaic theory)
c.
If device allows the police to access informa�on that they
otherwise could not obtain  gathering of info = search
14. CARPENTER – Iden�fied cell sites his phone used to make calls for 4-month
period (100 logs). Rule - Compelling wireless carriers to turn over data
that tracks users’ movements for long periods of �me requires a warrant,
absent exigent circumstances. *Government needs PC then a warrant!
a.
Roberts opinion – Use Technology REP laws. Voluntarily give
info to a third party = no reasonable expecta�on of privacy.
Arguing w/ Alito – cell phone use is not similar to business
records bc they are a necessity and don’t require any
affirma�ve ac�on except turning it on
b. Gorsuch dissent – Agrees w/ Thomas NO REP A persons has
privacy expecta�ons to keep things private regardless of
whether someone else has access to the personal informa�on
since complete ownership is not necessary to maintain privacy
rights. Federal & State legislatures are working on these laws.
(example expecta�on of privacy for leters – this is a
cons�tu�onal minimum degree of privacy protected under 4th).
Must create modern analogies. Reject Smith & Miller (phone
call info & financial records). Don’t use REP (lower courts
waived this based on tradi�onal property & common law)
c.
Alito dissent – Use Third Party Doctrine. Historically, court used
“trespass” approach, which clarified difference between
interests in privately held info and info held by third par�es.
Majority would require PC. Under third party doctrine, no REP,
so no PC need. Thus no warrant required
d. Kennedy dissent – 3rd Party Doctrine - Is it a person, house or
affect under 4th?. Court only needs to determine whether the
informa�on gathered (searched) belonged to Carpenter when it
it was obtained from wireless carriers. Records belong to third
par�es (Miller & Smith) & governments can compel third
par�es to disclose records in their possession & control.
Subpoenas are reasonable if they serve a relevant purpose and
the scope of the direc�ve are sufficiently limited and
specific.This will hamper effec�veness if important
inves�ga�ve tool used to solve serious crimes
e.
Thomas – Tradi�onal physical trespass
1.
2.
3.
Was there a Seizure?
Reasonable person believed not free to leave (physical force or asser�on
of authority)  Seizure (Objective Reasonable Observer Test)
Factors: # of officers, display of weapon, physical touching, language/tone
of officer, patrol car siren/lights, physical restraint, odd behavior of PO, PO
“free to go”, holds ID
In General: Standard of suspicion – Probable cause to believe suspect has
commited a crime.
a.
Warrant required to enter private premises to arrest, but not to
arrest in public.
b. Search incident to arrest allowed on person, in car, and to a
limited degree in home.
f.
Limit on excessive use of force, par�cularly deadly force.
Categorize 4th
1.
2.
3.
4.
5.
Consensual Encounter or Search – no RS needed (not classified as seizure)
Terry Stop – IF RS crime occurred or about to occur (to dispel suspicion for
THAT crime)  can STOP
a.
Terry Frisk - If TOTC based on specific & ar�culable facts +
ra�onal inferences from them can warrant “intrusion”  can
FRISK for weapons without warrant but subsequent
eviden�ary searches are not allowed
b. Time – seizure ends when tasks �ed to seizure are completed
or reasonably should be completed.
c.
Avoid defacto arrests
Rou�ne Traffic Stop – If PO sees viola�on  has PC to pull over – needs RS
terry suspicion for something to develop (can have ulterior mo�ve ie.
Drugs)
a.
If RS for PO to believe S is armed + dangerous  can FRISK for
weapons (further search not allowed)
b. PO Allowed to: Ask ques�ons about guns & drugs | Check for
outstanding warrants | Ask for consent to search car | Lead a
drug-sniffing dog around a car | Ask driver & passenger to exit
car | No search incident to cita�on (w/o other factors -RS, PC)
c.
Time – �me to address stop (15 min); 80 min for drug dog
(LEAL)
d. Avoid defacto arrest
Arrest – If PO believes reasonably trustworthy facts & circumstances to
warrant a reasonably prudent person to believe S has commited crime 
can arrest w/o a warrant in public (not private homes unless exigent
circumstances)
a.
Requirements: PC S commited crime @ �me of arrest
b. Factors: First hand observa�on (no stale) | From other police
|By vic�m or witness to PO (vic�m speaks directly to PO  PC
i. Mother �ps  maybe PC (inves�gate further)
ii. PO at work must take facts as true unless prove V is
lying
c.
Tips – Reliable CI  PC – Vague anonymous �p  NO PC –
Specific anonymous �p  PC likely
d. Brightline Arrest – “you’re under arrest”
e.
Defacto arrest (w/o consent)
f.
Facts indica�ng arrest – Time, Removing S from scene w/o
consent (objec�ve observer standard)
Search for evidence – PO can search for evidence that is not part of Terry
or traffic stop
a.
Requirements – S cannot be restrained.
b. If no PC but RS that evidence of crime of arrest in vehicle  can
search
2.
Did PO need a warrant?
1.
2.
3.
Did PO actually have RS or PC in their ac�on?
1.
Reasonable Suspicion – TOTC – Suspicion must be based on informa�on
w/ sufficient indica of reliability based on less reliable informa�on than PC
a.
Officer observa�on v. informa�on supplied from 3rd-party
b. Anonymous v. iden�fied source of informa�on
c.
Personal v. electronic communica�on of informa�on
d. Informa�on would subject informant to retalia�on
e.
Time elapsed from criminal event
f.
Crime rate in the area (high crime area)
g.
Suspect’s ac�ons a�er being confronted by the police may be
considered under reasonable suspicion analysis (major chicken
& egg problem here, but court doesn’t seem to mind)
h. Bulge that could be a weapon
i.
Matching Descrip�on
j.
Time of day
k.
Evasive behavior/Flight from cops
l.
Aggressive Behavior
m. Loca�on (high crime, open street v. closed area)
n. Suspect’s criminal history
Tip: Face-to-Face more likely to be sufficient to establish RS bc
informant is exposed to risk of retalia�on
Probable Cause – Facts & condi�ons where a reasonable PO can form a
reasonable basis to suspect a (1) crime has been commited OR (2) there is
evidence to suspect a crime is about to be commited and therefore
deprive an individual of his privacy/property/liberty
a.
Factors: PO sees it | Info from other PO | Statement from
vic�m or witness
o.
4.
5.
Warrant required: (1) Enter homes to arrest | (2) Search (subject to
exigency excep�ons)
No warrant required if:
a.
PO has PC that S commited misdemeanor/felony (in public spaces
not private homes unless exigent circumstances)
b. Search incident to arrest (look above)
c.
Search vehicles for evidence
d. Conduct a Terry Stop
e.
Hot pursuit of fleeing felon | Imminent destruc�on of evidence |
Risk of danger to police or others  warrantless entry
Valid Warrant Requirements – *PC within 48 hours of arrest is fine
a.
Probable Cause: it establishes a substan�al basis for concluding
that a search will uncover evidence of wrongdoing  warrant
applica�on valid
i. Conclusions which must be supported by evidence are: Specific
to items to be searched are connected w/ criminal ac�vity.
These items will be found in the place to be searched. Crime
vic�ms are presumed to be honest. Police can choose who to
believe in he said/she said swearing contest?
ii. Relevant facts for PC: Anonymous �pster (1) knew schedule and
(2) had specific detail (not openly observable). Some �ps were
corroborated prior to warrant.
iii. Relevant facts against PC: Anonymous �pster not correct about
every fact.
iv. Factors to consider: (1) veracity or reliability of the informant,
and then look to (2) how the informant came to know the
informa�on
b. Neutral & Detached Magistrate: Warrant must be issued by neutral
and detached magistrate (ex. Judicial clerks qualify as N & D for
purposes of issuing warrants) – no conflict of interest
c.
Par�cularly Describing – Adequate descrip�on of place
i. Test - Requires the descrip�on to be sufficiently precise so that
the officer execu�ng warrant can “with reasonable effort
ascertain and iden�fy the place intended
ii. Catch All  forbidden
iii. Riley excep�on – phones & computers
iv. Body – Requires jus�fica�on (like exigent circumstances). If only
RS  not allowed to search (let nature take course)
v. Electronic Surveillance – PC must show no other reasonable
method + approved by U.S. Atorney
d. Veracity/honesty of the Affadavit –
i. Informant lies - If informant lies to the stage agent but the PO
truly believes the informant  warrant may s�ll be valid.
ii. PO lies - If the PO does not believe the informant and/or lies to
the magistrate, the warrant is invalid. Disclosure of the
informant’s iden�ty is required.
e.
GOOD FAITH EXCEPTION – If officer believe warrant is good but
was incorrect  can s�ll rely on the warrant
Deadly Force – If PO has PC to believe suspect poses a significant threat of
death or serious physical injury to the officer or others + deadly force is
necessary to prevent escape  may use deadly force (GARNER)
Excessive Force – TOTC for reasonableness (Alleged crime’s severity |
Threat a suspect poses | S’s effort to resist/evade arrest)
a.
If (1) actual physical or emo�onal injury that is not de minimis +
(2) officer ignored S �mely complaints  not reasonable
Warrant Required for Search
1.
2.
Reasonable Expecta�on of Privacy Test – If government invades a space
where there is a reasonable expecta�on to privacy = Search  search
requires a warrant
a.
Requirements – (1) person has exhibited an actual (subjec�ve)
expecta�on to privacy and (2) that expecta�on is one that
society is prepared to recognize as reasonable
b. Technology - Use of inves�ga�ve techniques that ONLY reveal
informa�on w/o REP (cannot show anything illegal)  not a
search (no warrant required)
i. If tech not used by generally public  Warrant
required
ii. GPS on car for 28 days = Search, so warrant is likely
required (JONES)
Trespass Test – If PO physically intrudes or occupies cons�tu�onally
protected area (for purposes of acquiring informa�on) = Search (JONES)
8.
Did Police Exceed their Authority
1.
2.
Safe Harbors for Government = Search w/o warrant required
3.
4.
5.
6.
1.
2.
3.
4.
5.
6.
7.
Open Fields – If trespass  search does not require a warrant | If REP 
warrant required
a.
Cur�lage: proximity of area claimed to be cur�lage to the home
– Factors: where the area is included w/in an enclosure
surrounding the home, nature of uses to which area is put,
steps taken by resident to protect the area from observa�on by
passers-by.
b. Uninvited K9 Sniffing front porch = Cur�lage  Search requires
PC & search warrant
Magic Bullets – If open to public  search does not require a warrant
Assump�on of Risk – trust “informants” at own risk  no REP
a.
Friends can turn into government accomplice  they can turn
them recording or transmissions to government  no REP
(wiretapping & bugging in KATZ)
Third Party Doctrine – If voluntarily give info to a third party  no REP
a.
*Establishes 4A protects people not things (KATZ)
b. Financial records  no REP (credit card companies, electric/gas
bill)
c.
Telephone Info (number you dial/who you call)  No REP
d. Technology - Google wallets, phone companies tracking data
loca�on, cell-site loca�on stored in third party  warrant
required b/c they have REP
e.
Tower dump okay, Public video camera okay
f.
If collect historical loca�on data over a 7-day period  REP, so
warrant required (CARPENTER)
Consent – If consent given  allows reasonable search w/o warrant or PC
a.
Tainted Consent (force or fraud): If S is illegally detained/arrested
w/o PC & evidence found  product of illegal ac�on  Suppress
b. Consent a�er Taint - If consent follows a tainted 4A event, that does
not cure the taint. Consent is okay, but everything that follows is bad.
(no gun in toilet)
c.
Types: (1) Implied (2) Voluntariness (not coercion – TOTC)
d. TOTC Factors: Age, educa�on, and IQ of subject, whether subject was
advised of cons�tu�onal rights, length of encounter, repe��on or
dura�on of ques�oning, number of LEOs present, and use of physical
punishment
e.
Scope (objec�ve test): Search must be reasonable for PO’s search
f.
Revoca�on: can revoke, but if Plain View  PO can act upon evidenc
Plain View Doctrine: If PO has legal right to be there, finds incrimina�ng
evidence and incrimina�ng S is immediately apparent  may seize
evidence w/o warrant - HICKS
Automobile Excep�on – Kelly – PC to believe evidence, weapons,
contraband, or fruits of instrumentali�es of crime  can search a car (even
if impounded)
Terry Stop-and-Frisk – (see above)
Search Incident to Arrest (see above)
Stolen goods
Probable Cause
Exigent Circumstances - Need to prevent escape (Hot Pursuit), imminent
destruc�on of evidence, risk of danger to PO or third par�es.
3.
4.
Manner of execu�ng a warrant – Reasonable Standard incorporates
common law rule
a.
Knock & Announce – PO (while execu�ng a warrant) must
announce authority, purpose,& wait for admitance before
using force to enter unless exigent circumstances OR HOT
PURSUIT
b. “No Knock Entry” allowed when (1) a reasonable officer could
have had reasonable suspicion / or probable cause that
knocking and announcing his presence would have been
dangerous under the circumstances and (2) destruc�on of
evidence due to exigent circumstances
Incidental Deten�on & Search Powers –
a.
Search Unnamed Persons - Search warrant doesn’t authorize
PO to search persons unnamed on warrant unless they have
independent PC to arrest
b. Search Incident to arrest - If PO have PC to arrest a person to be
searched  search incident to arrest can occur (* violent
crimes = jus�fica�on to seize weapon during search)
c.
Contraband + Detain - If warrant to search for contraband
founded on PC  carries limited authority to detain people on
premises while property search is conducted
d. Detainment – In a poten�ally dangerous loca�on while
conduc�ng a legal search, detaining uninvolved inhabitants is
reasonable for the dura�on of the search to ensure safety. Also
RS not needed to ask Immigra�on status ques�on
e.
Pat down + Par�cular Premise - If possession of warrant to
search par�cular premises  cannot jus�fy pat-down of
persons alone at �me of execu�on. (I think they’ll need
independent reasonable suspicion or probable cause)
i. Balancing Test: Law enforcement interests (safety)
vs. intrusion that may jus�fy limited seizure pursuit
(1) general interest in crime preven�on & detec�on
(2) interest in flight preven�on if incrimina�ng
evidence found (3) interest in orderly comple�on of
search (* present when occupants are there to open
secured doors or containers)
Search Incident to Arrest + Detainment – Probable Cause to Arrest
a.
Detainment of All: Warrant to search premises does not allow
detainment of all individuals at loca�on
i. If RS (armed)  Terry Frisk allowed  let leave
b. Homeowner: If the homeowner allows the PO to search while
he lives, this behavior is sufficient to allow detainment b/c an
ordinary person would not want to be absent for search.
c.
Re-enter Home: deten�on is allowed from reentry of a home (*
due to exigent circumstances - destroying of evidence)
d. Mena - Is it reasonable to detain a teenage girl outside while
they search the drug house?
Excessive Force – Police must arrest & execute warrant reasonably
a.
Deadly Force – If to (1) necessary to prevent escape + (2) PO
has probable cause to believe S poses a significant threat of
death or serious physical injury to officers or others  may use
deadly force - GARNER
b. Nondeadly but Excessive – Reasonableness depends on factors:
(1) alleged crime’s severity, (2) threat a suspect poses, and (3)
suspect’s efforts to resist or evade arret
i. Only to defend against imminent threat of death or
serious bodily injury (ex. Firing at or has taken a shot
at police)
b. Prong 2 (FED): If offense in arrest or any violent crime is one
which involves sexual assault, great bodily harm, or murder
i.  If human life is at risk (hostage or shoo�ng at) 
can use deadly force
ii. If forced required to arrest  reasonable force
The Exclusionary Rule – A�er Midterm
1.
2.
Burden of Proof: Suppression Hearings
a.
Defendant has burden of proof by preponderance of the evidence
that: (1) police commited a search or seizure & (2) D has “standing”
to complain about the search & seizure
b. Prosecu�on has the burden of proof by preponderance of the
evidence that the search was (1) reasonable OR (2) an excep�on to
the e-rule (other than standing) applies
Standing – In order to have standing, the person moving for suppression
must be the individual whose 4A rights were violated. (*Only vic�ms can
complain & have evidence excluded. Third par�es not subject to
uncons�tu�onal search & seizure cannot have evidence suppressed)
a.
Exclusionary Rule – Moving party must show his rights were violated
& must show standing to challenge the search/seizure from viola�on
of her own reasonable expecta�on of privacy under TOTC test,
considering factors such as: ownership of place searched & loca�on
of item seized.
b. REP Test (Atkins/Rakas Test) – Courts must determine whether
appellant objec�vely had a REP at the �me & place of the disputed
search (TOTC) – Factors:
i. Whether defendant had a property or possessory interest
in the place invaded;
ii. Whether defendant was legi�mately in the place invaded;
iii. Whether defendant had complete dominion or control
and the right to exclude others;
iv. Whether, prior to the intrusion, defendant took normal
precau�ons customarily taken by those seeking privacy;
v. Whether defendant put the place to some private use;
vi. Is defendant’s claim of privacy is consistent with historical
/ tradi�onal / customary no�ons of privacy?
c.
Automobile Searches
i. Stop – Everyone has standing to contest stop, BUT stops are
almost always legal
ii. Search (Passenger) – A passenger has not standing to complain
about the search of a vehicle if: (1) the passenger does not own
the vehicle, (2) claim possessory interest in the thing seized or
container holding the thing seized, & (3) does not have a preexis�ng, long-standing rela�onship w/ the vehicle’s owner (ex.
spouse or child).
iii. Driving Alone: If you don’t own it  likely have standing/REP
d. House Searches/Private Premises
i. Overnight guest + stayed in past  standing
ii. Hotel boyfriend not on room  no standing
iii. Having Sex  REP  Standing
Categorical Excep�ons
Causa�on Excep�ons): Even when the suspect has standing to challenge the
fruit of the poisonous tree, the evidence could s�ll be included under the
following excep�ons:
3.
4.
5.
Inevitable Discovery (Included) - If the prosecu�on can show that the
police would have discovered the evidence whether or not they had acted
uncons�tu�onally, the evidence is admissible
a.
Ex. PC Vehicle Search  PO find during inventory search; or D has a
warrant  excuses all evidence up to the point under ID
Independent Source (Included) - If the prosecu�on can prove by
preponderance of the evidence that informa�on obtained through 1 illegal
source + 1 legal source, it will NOT be penalized & evidence admissible
Atenua�on (Included/Excluded) - An intervening act of free will by the D
will break the causal chain b/w the evidence & the original illegality & thus
remove the taints. Factors: (1) Temporal proximity – The shorter the �me
between challenged conduct and discovery of evidence, the more likely it
is that the evidence will be tainted. (2) Presence of intervening
circumstances – Circumstances such as Miranda warnings, change of
loca�on, delibera�ve acts by defendant, and acts by third par�es are
relevant in determining whether the chain of causa�on was broken. (3)
Purpose of flagrancy of the official misconduct – The greater the impact on
6.
7.
8.
9.
the defendant, and the more serious the misconduct, the more likely it is
that it will taint subsequently obtained evidence
Impeachment Excep�on – Prosecu�on may use suppressed evidence
(illegally obtained) to impeach tes�mony of a noncredible witness
a.
Ex. Perjury, reckless police (not negligent) believing warrant exist, PO
making false statements, (reliance on govt’s disability to challenge
credibility doesn’t count)
b. Illegally obtained confession: Voluntary statements made in viola�on
of Miranda may be used for impeach or rebut the fac�inder
Collateral Proceedings - Illegally obtained evidence can be used in the
following proceedings: Grand jury delibera�ons, Immigra�on/Deporta�on,
Civil Tax, Habeus Corpus, Proba�onary Revoca�on (no Forfeiture)
Good Faith Excep�on - If the PO arrest or search someone erroneously
but in good faith, thinking they are ac�ng pursuant to a valid arrest
warrant, search warrant, or law, the exclusionary rule does NOT apply
a.
Experience & knowledge may be taken into considera�on
b. Examples: Judge approved warrant + detailed affidavit for reasonable
PC, jus�fied reliable info from another PO,
c.
Excep�ons to GF Excep�on: A police officer cannot rely on a
defec�ve search warrant in good faith if the: (1) Affidavit underlying
the warrant is so lacking in PC such that reasonably police officer
would have relied on it; (2) Warrant is defec�ve on its fact (e.g., it
fails to state w/ par�cularity place to be searched or the things to be
seized); (3) Police officer or government official obtaining the
warrant lied to or misled the magistrate; or (4) Magistrate has
“wholly abandoned his judicial role”
Retroac�vity
Remedies for 4A Viola�ons
1.
2.
3.
4.
E-Rule
Injunc�on
Habeus Corpus
42 U.S.C. § 1983 – Civil Ac�on for Depriva�on of Right – State actor
violates individuals cons�tu�onal (ac�ng under color of state law);
contrary to clearly established law; Plain�ff has damages  S can bring
Tort suit
5.
CA Penal Code 835 Common Law Rule: If trying to arrest a fleeing felon 
can use deadly force
a.
Two Prongs: Civil: Both (FED); Prong 1 (CA) --- Criminal – Prong 1
(CA)
c.
Prong 1 (FED or CA): Suspect poses clear & present danger to
human life  can use deadly force on fleeing S
Ins�tu�onal Reform Li�ga�on
5th Amendment – Right Against Self Incrimina�on
“No person…shall be compelled in any criminal case to be a witness against
himself” – Privilege against Self Incrimina�on
1.
2.
3.
Self-Incrimina�on Elements
a.
Compulsion - Compel disclosure of….Coercion??
i. Examples: (1) Judicial process backed by the contempt sanc�on,
Torture, (2) Denial of substan�al government benefits (Garrity v.
New Jersey), (3) Inference of guilt from silence (Griffin v.
California), (4) Custodial interroga�on absent Miranda
safeguards  compulsion (under arrest and being held by
police)
a.
Voluntary waiver = Answering ques�ons without claiming
privilege
b.
Tes�monial Evidence = Answering a ques�on
i. The act of produc�on itself is tes�monial – admi�ng
possession and authen�city.
ii. Govt Knew documents existed: If the government already
knew documents existed & is just compelling their
produc�on  the act of produc�on is NOT tes�monial
(Fisher)
iii. Nontes�monial Evidence examples: (while there is
coercion, there is no “braking of the will” of the suspect,
as with torture or denial of rights), Blood samples,
Physical appearance at a lineup, DNA swab, Property (ex.
clothing or a car) can be used against the D
c.
Tending to incriminate the suspect - INCRIMINATION
i. Forbids the court from inquiring why the one is claiming
such a privilege.
1. D’s privilege is limited to incrimina�ng
evidence, not just embarrassing informa�on..
2. Don’t need to explain how it would incriminate
you, b/c it would defeat the witness’s privilege.
Has to be more than just “mere say so,” but
not much
Immunity – If you want to COMPEL tes�mony, it must be immunized
a.
Transac�onal Immunity (Federal Courts) - where the witness cannot
be held responsible for any crime rela�ng to the subject mater, 
their tes�mony can be compelled.
i. When the witness has been granted transac�onal
immunity  CANNOT be prosecuted for what he tes�fies
about once the transac�onal immunity order has been
entered
ii. Cannot refuse transac�onal immunity
iii. Most states only allow this
b. Use (+ Fruits) Immunity - The deal is that the police do not charge
the ∆ with everything they could (give him a small sentence) and in
return the ∆ gives tes�mony about the larger criminal ac�vi�es to
the grand jury. Thus, he just gets the single charge w/o the fear of
implica�ng himself in a greater criminal conspiracy
i. Example: Bodyguard get charged with possession of illegal
guns and 2 keys of drugs. The π just charges the ∆ with a
single passion charge, and in exchange the ∆ tells the
police/π about the “stash house” where more drugs can
be found. Otherwise, w/o this immunity, the ∆ could be
charged not just with passion of 2 keys, but everything
found at the stash house.
Pre-exis�ng Documents Issue
a.
Where the government would not have known about the existence,
loca�on, or authen�city of the pre-exis�ng documents without the
target’s disclosure in response to a subpoena, documents are derived
from compelled tes�mony and must be excluded from evidence
together with evidence derived from them. – Hubbell
b. Anything derived from the immunized confessions is fruit of the
forbidden tree. The government is free to use a piece of informa�on
that appears in an immunized document if it can accomplish its
c.
d.
e.
f.
affirma�ve duty of proving that the informa�on was derived from a
legi�mate source wholly
i. Rule: Whether an act of produc�on is sufficiently
tes�monial to implicate the 5th Amendment depends on
the government’s knowledge regarding the documents
before they are produced.
Case 1: Police coerce S to write out a confession -- At that point, the
crea�on of the document has been compelled  confession is
tes�monial  compelling self-incrimina�on & cannot be used
Case 2: S keeps a private diary. The police learn of its existence &
obtain a warrant to seize it, by force if needed. It’s tes�monial & it’s
incrimina�ng, but it was NOT compelled.
Foregone Conclusion
i. If the new communica�on implicit in the act of produc�on (AOP)
does NOT incriminate (because the government knows it already
or could easily find it independently)  the government need
NOT immunize the act of produc�on
Biometric Key Issue – 11/9
Miranda Rights & 5A Ini�a�on
Dripps’ Miranda Flowchart
1.)
2.)
3.)
4.)
1.
2.
3.
4.
1.
2.
3.
4.
Does Miranda apply? (Find custody +
interrogation)
Was the warning itself good?
Was the warning given before the statement
was made?
After warning, did suspect waive or invoke?
Miranda Level 1 Analysis: Does Miranda apply  Was S subject to a
custodial interroga�on?
a.
Presump�on of Uncons�tu�onal Compelled Tes�mony = Custody +
Interroga�on.
b. Valid Miranda Warning or Voluntary Wavier dispels presump�on
Custody occurs when a reasonable person would feel as though they were
not free to leave.
a.
Objec�ve Test (not subjec�ve by PO):
i. The amount of officers
ii. The loca�on of the ques�oning
iii. Whether or not they are restrained
iv. Whether or not they are free to leave once ques�oning is
over
v. Whether or not weapons are present
vi. Where the suspect is being moved to a loca�on coercively
where he would not normally be.
vii. Where the change in loca�on interrupts your daily life
viii. Where a reasonable person would find that you have
been moved somewhere against your will.
Interroga�on includes any words or ac�ons on the part of the police (other
than those normally atendant to arrest & custody) that the police should
know are reasonably likely to elicit an incrimina�ng response from the
vic�m (ie. “Express ques�oning or its “func�onal equivalent”)
i. California case – People against Mirado?? – warning to
remain silent & right to consult an atorney, but didn’t say
we’ll pay for it. In absence of “right to appointed counsel
if he can’t afford a lawyer”, it’s ineffec�ve.
Excep�ons where Miranda Warnings are not required
a.
Only Tes�monial evidence is protected – not fingerprints, blood
samples, handwri�ng samples, voice sample
b. Jail House Snitch Excep�on - : Conversa�ons b/w suspects &
undercover agents do NOT require Miranda warnings
c.
Public Safety Excep�on – A�er shown evidence for your home 
incrimina�ng statement is not considered interroga�on
Miranda Level 2 Analysis – if Custody + interroga�on  the next ques�on
is whether the warning was valid  any statement w/o waring is invalid. If
the warning is defec�ve  invalid
Valid Miranda Warning Examples - Was the Warning Good?
a.
Including right to cut off ques�oning at any �me  valid warning
b. Sta�ng that suspect could not have lawyer at the �me b/c none were
on duty but could have one on court  valid warning
Suspect Responses: S in custody + PO plans to interrogate + gives a valid
warning. S can waive both right to counsel & right to silence at any
subsequent point during ques�oning, BUT PO is s�ll subject to due-process
TOTC voluntariness TEST. Receiving the warning is 1 factor in the TOTC.
Responses include:
i. Express Waiver – “I waive my right….”
ii. Implied Waiver – If S don’t expressly invoke right to both silence
counsel – “I want to remain silent or don’t want to talk to PO”
iii. Invoca�on of silence
iv. Invoca�on of counsel
Waiver 2-Prong Test: A waiver must be (1) Voluntary and (2) Knowing
a.
Voluntary – Waiver was a product of a free & deliberate choice rather
than in�mida�on, coercion, or decep�on.
i. TOTC – Examples?
b. Knowing – Waiver was made w/ a full awareness of both the nature
of the right being abandoned & the consequences of the decision to
abandon it
5. Invoca�on must be (1) Express (2) Unequivocal (3) Unambiguous
c.
Invoca�on of Right to Silence means the PO has to stop ques�oning
BUT are allowed to reapproach with the following factors:
i. Cleaning warning
ii. Significant passage of �me
iii. Other factors – whether the officers are the same before,
crime in ques�on, loca�on of ques�oning
d. Invoca�on of Right to Counsel means PO must stop interroga�on
un�l the S is given counsel. Hutchinson
i. When S can make an admissible statement regardless of
prior invoca�on of right to counsel: Edwards Rule
Excep�ons:
1. S released from custody b/c no coercion
a.
Let out on bail
b. Released & slept in own bed
2. S voluntarily re-ini�ates communica�on w/ PO
OR counsel has been made available to him
2. Incarcerated People & Reproachment - Edwards Prongs
a.
Prong 1: Bars police interroga�on following invoca�on of right to
counsel even regarding different crimes not the subject of the
current interroga�on
b. Prong 2: As the Court announced in Minnick v. Mississippi once a
suspect in custody invokes his Miranda right to counsel, the police
must not only permit the suspect to consult with an atorney prior to
ques�oning but they may not reini�ate ques�oning unless counsel is
present. Unless the suspect reini�ates and gets a cleansing warning
c.
However, this shield is removed if the defendant suspect ini�ates
further communica�ons, exchanges with the police and the police
obtain a valid waiver.
6. Requests for Counsel related to UNRELATED CRIMES
7. What if S actually talks to counsel?
8.
Equivoca�on
9. Inadmissible Statement: A person’s statements during custodial
interroga�on are inadmissible at trial unless the prosecu�on can show that
D “knowingly & voluntarily” waived his or her Miranda rights prior to
making the statement.
10. Ini�a�on Escape Hatch: If S ini�ates police & wants to talk, gets a new set
of warnings, signs waiver card  ini�a�on  nothing wrong about it
Miranda E-Rule :
What happens when the Defense catches prosecu�on improperly
reinterroga�ng, breaking the rules of Miranda, a�er the suspect defendant
invokes?
1.
2.
3.
4.
Statements: Obtained in viola�on of Miranda are admissible to impeach
the Δ’s inconsistent tes�mony &
Physical Evidence: The fruits of any Miranda-tainted statements are
admissible at trial
Confessions/Admissions
Other Fruit & Tree Cases
6th Amendment: Right to Counsel
6A guarantees - Right to atorney & right to due process in criminal defense trial
(1)
(2)
(3)
(4)
•
1.
2.
3.
4.
Dripps’s 6th Amendment Procedure
Did right atach
Was evidence obtained at a cri�cal stage of the proceeding
Did D waive 6th Amendment right at the point in �me at which
evidence was obtained
If atached + invoked + cri�cal stage  is D being tried only for
charge that was pending?
D can s�ll lose if government files new, different charge
Pretrial Procedure: Chronology from Arrest to Trial
a.
Crime  Inves�ga�on  Arrest  Booking  Ini�al
Appearance/Preliminary Arraignment (Bail)  Preliminary Hearing
(right to counsel) Indictment of informa�on  Pretrial Mo�on 
Arraignment  Trial (Grand Jury + Enter Plea/Plea Bargaining)
Atachment: 6A only applies when the right to an atorney ataches and
during cri�cal stages of the adjudica�on process
a.
Four situa�ons in which the right to counsel ataches:
i. Trigger: (1) Indictment (2) Preliminary hearings (where if
witnesses tes�fy, the tes�mony is admissible at trial) (2)
Accusa�on by complaint or informa�on (3) Arraignments
ii. Don’t trigger: (1) Tes�fying before a grand jury, (2) being asked to
consent to search, (3) ID lineups
Cri�cal Stages:
a.
Right to an atorney exists only during a “cri�cal stage.” Cri�cal stages
are stages that resemble the trial itself where there may be a judge,
witness, tes�mony given, or prosecutors present
i. Cri�cal stages
1. Trial (Powell v Alabama), Prelims where tes�mony is taken
(Coleman v. Alabama; Pointer v. Texas), Ques�oning of Δ by
police or prosecutors (Escobedo; Brewer), “Deliberate
elicita�on” by informants directed by the govt (Ventris;
Alexander), Corporeal ID procedures where Δ confronts
eyewitnesses (Wade)
a.
Hidden mics don’t count if you are recording natural
conversa�on.
ii. Not Cri�cal Stages
1. Police and prosecutors interviewing witnesses, Crime scene
inves�ga�ons, Forensic tests, Non-corporeal ID procedures
(Ash v. United States)
b. Main thing: any ques�oning of a defendant by police or prosecutor =
cri�cal stage. Witness interviews are not cri�cal stage. Preliminary
hearings = cri�cal stage. Post-atachment lineups = cri�cal stage
i. If what occurs at a proceeding will affect, be disposi�ve,
of what occurs at trial such as: police ques�oning,
prosecutor communica�on with defendant, please
bargaining.
c.
When does S go from being a S in inves�ga�on to a D in a criminal
trial?
Waiver of RTC – Much stricter standard to waive than Miranda
a.
If one doesn’t know the right has atached, right has atached, and
the person has waived their Miranda rights  they don’t waive their
6A RTC.
b. Once you’ve met with, formally requested an atorney, or an atorney
has acted on your behalf  you can no longer waive the right.
c.
In order to waive the RTC before the counsel has acted on your
behalf  you must do so (1) Knowingly (2) Intelligently & (3)
Voluntarily
i. Knowing & Intelligent – If D is made aware of dangers of
represen�ng himself by use of Miranda Warnings  his
waiver of right to counsel during post-indictment
ques�oning is “knowing” and “intelligent”
ii. The 6A right to counsel is not violated if a defendant, a�er
being appointed counsel, validly waives the right to
counsel outside of the counsel’s presence and confesses
(even a�er the defendant's Sixth Amendment rights have
atached and become opera�ve). – Montejo
5.
6A + E-rule
6.
Double Jeopardy for Mini Trial: If the DJ dismisses the case  D is subject
to re-arrest & the case can be taken before another DJ & it is not
considered double jeopardy.
a.
If any period of incarcera�on is imposed as a penalty  Due process
requires appoin�ng misdemeanor counsel
b. Prosecu�on has to decide whether or not they’re pursuing a
correc�onal sentence.
c.
Uncounseled misdemeanor convic�on can enhance under a
recidivism statute.
d. A suspended or proba�onary sentence of incarcera�on for an
uncounseled misdemeanor convic�on is void.
Effec�veness of Counsel – Two prongs:
a.
Has to act professionally, doesn’t have to be a tac�cally proficient
atorney.
b. Lawyer’s performance cannot prejudice the defendant with regards
to the ruling/outcome against them.
7.