1. Investigation
2. Arrest/Booking
3. Arraignment
4. Preliminary Hearing
5. Grand Jury
6. Discovery
7. Pretrial Motions
8. Trial/Plea
9. Sentencing/Acquittal
10. Probation/Parole
11. Revocation

1. Warrant
2. Indictment

1. Once the issue is raised;
2. Prosecution has the burden of showing the evidence was lawfully obtained; OR
3. An exception to the Exclusionary Rule applies.  

1. No constitutional violation; 
2. Exception to exclusionary rule applies.  

1. Gov'ts action were generally reasonable under the circumstances; OR
2. Reasonableness defined by rule that requires warrant absent the warrant exceptions.  

1. PC;
2. Supported by oath/affidavit; 
3. Particularly describing; 
4. The place to be searched; and
5. The persons or things to be seized.  

1. Does the 4th Amd. apply? 
2. If the 4th applies, does D have standing?  
3. If yes, was the S&S reasonable?  
4. If no, does the exclusionary rule apply?  

1. Gov't action;
2. Search or Seizure.  

To determine whether there has been a search by a gov't actor: 

1. Was there an actual expectation of privacy? (Subjective Prong); AND
2. Was there a reasonable expectation of privacy? (Objective Prong).  

1. Location;
2. Open Fields Doctrine; 
3. Assumption of Risk; 
4. Aerial Surveillance; 
5. False Friends; 
6. Per Registers; 
7. Electronic Tracking Devices; 
8. Thermal Imaging Devices; 
9. Container Searches; 
10. Property Interests; 
11. Social Custom; 
12. Past Practices/Expectations; 
13. Legality and Intimacy of Activities; 
14. Vantage Point.  

"Open Fields" are not entitled to 4th Amd. protections b/c:

1. Not "persons, houses, papers, or effects"
2. Not a search.  

1. Land immediately surrounding and associated w/ the home; 
2. Entitled to 4th Amd. protections b/c has REP; and
3. Considered an extension of the home.  

1. Proximity to home (most important); 
2. Is it w/ an enclosure surrounding the home; 
3. Uses to which the area is put; and 
4. Precautions taken to protect privacy of the area.  

• None are dispositive
• Case-by-Case analysis
• Intimately tied to home to fall under umbrella of 4th?

A person does not have a REP to things said to undercover gov't agents or to things said to informants b/c:

1. You always have 1 person who knows the conversation is being recorded; OR
2. Someone who decides to rely info to the gov't 

Beeper in can was search b/c  info was from inside of home that could not have been achieved w/out physical intrusion  

Court found REP in vehicle’s 24/7 movements and using a GPS to track 24/7 was a search that needed a warrant.  

1. If device gets info from inside of home that otherwise could not get, it is likely a search; 
2. If gov't uses device not available to general public to explore home w/out physical intrusion, its a search.  

When gov’t uses device not in general public use to explore inside of home w/out physical intrusion it is a search and presumptive requires a warrant.  

No REP in garbage left outside curtilage for removal    

Ownership of property at issue “one fact to be considered”    

Overnight guest has REP in place where they are staying 

Temporary visitor for commercial purpose not enough to confer REP in apartment 

REP in workplace has “deep roots in the history of the 4^th Amendment.”  

1. Not a search; 
2. EXCEPT when police bring canine onto curtilage of home.  

Canine sniffs are searches when they are performed on curtilage – officers can come onto property to knock of front door and ask for permission to search or speak w/ occupant, but CANNOT bring dog to sniff while doing so – only time court considers the officer’s subjective intent.  

1. Sound of voice;
2. Physical appearance;
3. Handwriting; 
4. Fingerprints;
5. Things left open to public observation

1. Content of blood;
2. Breath test; 
3. Urinalysis; 
4. Scraping of fingernails; 
5. Forced surgical procedures.  

1. Contraband; 
2. Fruits of a Crime; 
3. Instrumentalities of a Crime;
4. Evidence relating to a Crime.  

1. Whether gov't knew of and acquiesced to intrusive conduct; AND
2. Whether private actor's purpose was to assist law enforcement v. furthering own needs (primary purpose - harder to tell)

Railroad’s action were as agent of gov’t b/c gov’t forced samples to be taken, and that could not be contracted away.  

Exists where there is a fair probability that:

1. A particular individual; 
2. Has committed/is committing a particular criminal offense 

There is a fair probability that:

1. Something is properly subject to gov't seizure (contraband, fruits of crime, instrumentalities/evidence of crime); 
2. Is presently; 
3. In the specific place to be searched.  

1. Credibility/Veracity of informant; AND
2. Basis of knowledge/reliability of info.

• Overruled by Gates, but still relevant to analysis

1. Was info contrary to informant's interest; 
2. Has informant given accurate tips:
3. Does informant have reputation for truthfulness.  

1. Did informant observe/participate in activities; 
2. Was tip detailed enough to show first-hand knowlege;
3. Did nature of info, or manner gathered, indicate personal knowledge or highly reliable source.  

• TOC
• Enough particularized facts to lead a common sense person of reasonable caution to believe that there is a fair probability of criminal activity. 
• Substituted Anguilar-Spinelli - but still part of analysis 

Magistrate’s determination of PC is given great deference by courts    

1. PC;
2. Particularly described person/place to be searched;
3. Item seized.  

1. N&D magistrate better equipped to make reliable judgments re PC; 
2. Helps limit police discretion in S&S; 
3. Avoid post-hoc, de facto weakening of PC requirement; 
4. Forces gov't to critically analyze justification for warrant & confront weaknesses.  

1. Neutral/Detached Magistrate; 
2. PC;
3. Oath or Affirmation; 
4. Particularity.  

1. Entry (K&A); 
2. Scope. 

1. Application; 
2. Sworn Affidavit; 
3. Search Warrant; 
4. Return.  

1. Sworn affidavits; 
2. PC

1. N&D Magistrate; 
2. Particularity.  

1. Scope; 
2. Knock and announce standard.  

1. Warrant Application; 
2. Was Warrant Properly Issued; 
3. Execution.  

• High burden on D to show: 

1. Intentional/reckless faslity in warrant application; &
2. Falsity was necessary in finding PC.  

• Prima Facie case required for Franks hearing to overcome presumption
• If satisfied - evidence is suppressed

1. Complaint;
2. Affidavit; 
3. Warrant (no particular location)

• PC for person re particular crime

1. Application; 
2. Affidavit; 
3. Warrant (speficic location & list of evidence)

• PC that seizable evidence is in particular place

1. Gov't has reasonable suspicion that
2. K&A under the circumstances would be
3. Dangerous OR
4. Futile in that it would inhibit effectiveness of investigation OR
5. Result in destruction of evidence.  

Exclusionary rule does not apply to failure to wait a sufficient amount of time before entering.  

Police may not search individuals present during execution of search warrant UNLESS:

1. The individuals are included w/in scope of warrant; OR
2. A Terry frisk is appropriate (Gov't has RAS that individual is armed and dangerous) 

Cannot leave section describing the items to be seized blank (to be filled in as warrant is executed).  

1. Official who issues warrant cannot be involved in execution; 
2. Particularity - Cannot leave sections blank to be filled in during S&S

1. Seriousness of offense; 
2. Level of suspicion (PC); 
3. Warrant Requirement.  

1. Officer has PC to believe person committed felony; 
2. Has committed felony/misdemeanor if gov't presence;
3. Arrest occurs in public place.  

• #3 ALWAYS required w/ #1 or #2

4th prohibits warrantless, nonconsensual entry into suspects home in order to make routine arrest.  

Exceptions

1. Hot Pursuit of Fleeing Felon; 
2. Imminent Destruction of Evidence; 
3. Need to prevent escape; 
4. Risk of danger to police/other persons inside/outside house

1. Arrest warrant;
2. Search warrant.  

1. Arrest Warrant; 
2. Reasonable belief that person is present. 

1. Warrantless arrest must be subjected to judicial determination of PC "promptly after arrest" 
2. Hearing need not be adversarial; 
3. Hearings after 48 hrs. are presumptively unreasonable; 
4. W/in 48 hrs. presumptively reasonable; 
5. Exclusionary rule applies to evidence resulting from Gerstein violation.  

• TOC Analysis

1. Length of Detention; 
2. Place of Detention.  

1. RAS to believe individual is armed/dangerous
2. Pat-down only- no manipulation
3. Can seize weapon w/ RAS
4. Can seize contraband w/ PC (plain feel doctrine)

1. Voluntary - No PC/RAS - 4th does not apply
2. Terry Stop - RAS
3. Arrests (de facto/custodial) - PC

• Arrests/Terry Stops both seizures

Mendenhall Factors for Seizure Test (4) 

(Not Exhaustive) 

• Balancing Test

1. Threatening presence of several officers;
2. Display of weapons/show of force; 
3. Physical touching; 
4. Language/tone of voice that compliance is compelled

1. Presumes person is self-restrained; 
2. Would RIP feel free to decline gov't request; 
3. TOC under "innocent" person - Bostick

Court should not find seizure unless: 

1. Person submits to officer's show of authority; OR
2. Officer uses physical force to control movement.  

1. Gov't must be able to point to specific and
2. Articulate facts, which taken together w/ rational inferences
3. Reasonably warrant stop and frisk.  

1. SIVA
2. Exigent Circumstances
3. Plain View
4. Auto
5. Consent

1. Prevent destruction/concealment of evidence; 
2. Protect officer 

1. Valid custodial arrest; 
2. Scope of search; 
3. Timing - comtemporaneous of arrest 
4. Seizure of object (PC to believe it was contraband, fruits, instrumentalities, or evidence of crime) 

1. SIVA permitted search of entire passenger compartment/containers, but not trunk;
2. Must be contemporaneous w/ arrest; 
3. Arrestee must have been occupant/recent occupant of car

Permits SIVA search of passenger compartment when: 

1. Gov't has reason to believe arrestee may be able to reach weapon/destroy evidence (wingspan)
2. Gov't has reason to believe evidence of offense may be found (passenger compartment) 

SIVA expanded to: 

1. In home arrest; 
2. Protective check of areas adjacent where attack could occur; 
3. Broader sweep if gov't has RAS to believe "confederates" may be lurking; 
4. Plain view still applies.  

1. Cursory inspection; 
2. Short in duration; 
3. Lasts no longer that time to arrest and exit premises.  

1. PC for S&S; 
2. Sufficient exigent circumstances to justify warrantless activity; 
3. Police may not create exigent circumstances

1. Hot Pursuit
2. Imminent Destruction of Evidence
3. Need to prevent escape
4. Risk of danger to other persons (inside/outside home)

Police cannot create exigency

Warrantless entry into home permitted when:

1. In pursuit of fleeing felon; AND
2. Pursuit began in public place where warrantless could have been made.  

1. Degree of urgency/time to get warrant; 
2. RIP belief contraband was at risk; 
3. Danger to gov't while getting warrant; 
4. D's awareness of gov't presence; 
5. Evenescent Evidence 

TOC analysis re severity of warrantless intrusion v. severity of crime 

• Factors

1. Severity of warrantless instrusion; 
2. Nature of crime; 
3. Type of exigency; 
4. Level of PC - never dispositive; 
5. First 3 balancing 

1. No invasion of REP =  no “search”
2. Only “seizure” of object at issue
3. Resort to N&D magistrate under the circumstances impractical
4. Warrant requirement does little to promote the 4^th Amendment in this instance

1. Initial intrusion valid under 4th; 
2. Incriminating nature of object immediately apparent (PC); AND
3. Officer's access MUST be valid

1. Gov'y may not manipulate during Terry frisk; 
2. If frisk gives RAS of weapon - may seize
3. If frisk gives PC of contraband - may seize 

Car seach at station OK b/c had PC to search at scene (timing not issue as w/ SIVA/Belton searches)    

1. Terry Frisk
2. Belton/Gant Search
3. Auto Search

1. Requires that D is A&D and may gain immediate control of weapons in car; 
2. Limited to passenger compartment.  

1. Triggered by custodial arrest; 
2. Requires RTB accessibility to obtain weapon; OR
3. Evidence of crime of arrest in car; 
4. Limited to passenger compartment

1. Requires PC; 
2. Extends to any part of car, including passenger compartment and containers, subject to PC of item

1. Location; 
2. Whether auto is licensed; 
3. Whether connected to utilities; 
4. Whether has convenient access to public road.  

If police has PC that container in car has contraband, may search container w/out warrant

1. Limited scope to PC of item; 
2. Can't search entire auto if only have PC fof container

1. May search passenger's container w/in scope of PC; 
2. Passenger person OK if w/in scope of PC; 
3. Cannot search passenger w/out scope of PC or separate PC or RAS; 
4. Who owns container only matters for consent 
5. Can order passenger out w/out PC or RAS

1. Cell phone not searchable under SIVA/Gant;
2. May search w/ PC and exigencies; 
3. May seize for reasonable time for warrant; 
4. Probably can't search under AUTO

1. Police may open/search containers in auto w/ PC that it specifically contains seizable items; OR
2. Has PC that car contains seizable itmes that are capable of being held in container.  

1. If they have PC + exigent circumstances (or another warrant exception applies); OR
2. Seize temporarily w/ PC to obtain warrant to open it.  

1. Was consent voluntary?  
2. Given by someone w/ actual/apparant authority?  
3. Was the search w/in scope of consent?  

1. TOC analysis; 
2. P has BOP lack of coercion; 
3. Factors (9): Age, intelligence, knowledge of right of refusal, custody, nature of request for consent, food/sleep deprivation, presence of several officers, show of force, tone of voice, etc. (Coercion)

1. Jimeno - What would RIP understand re exchange b/w cop and suspect?  
2. Dichiarinte - To search house re drugs does not include reading.  
3. Garcia - General consent to search car does not include removing door panels (at least where law prevents destructive search w/out PC).  
   

1. Deter police misconduct;  (most important)
2. Preserve integrity of courts.  

1. Would rather impede criminal than cop; 
2. Innocent citizen would accept; 
3. Law Enforcement Interest outweights individual; 
4. More important to convict guilty then to prevent unconstitutional S&S.  

1. Might result in guilty being set free; 
2. Only if gov't disregards Constitution.  

1. ID potential poisonous trees (con violation); 
2. ID FOPT; 
3. Determine if fruit is of PT; 
4. If FOPT, do exceptions to Exclusionary Rule apply?  

1. Primary (Direct) = direct product of con violation; 
2. Derivative (Secondary) = Derived from direct product of con evidence

1. Trial limitation - only applies to trials; 
2. Does not apply to sentencing hearing, violation, etc.
3. Exclusionary Rule does not apply to GJ.  

1. Standing; 
2. Applies only in criminal cases; AND
3. Impeachment limitation.  

1. Independent Sources; 
2. Inevitable Discory; 
3. Attenuation of General Exception

1. Gov't discovers evidence lawfully 1st, the not 2nd 
2. Gov't discovers evidence unlawfully 1st, then later discovers lawfully through other souce w/ discovery.  

1. Gov’t must show that products of the illegal search were not used to obtain a warrant or to support an exception to the warrant requirement.
2. Gov’t must show that the illegal search had no effect on their decision to seek a warrant.

1. Time b/w illegality and statement; 
2. Intervening circumstances; 
3. Purpose & flagrancy of misconduct

1. Causal connection b/w evidence and unlawful gov't activity is remote (Brown); AND
2. When specific protected interes protected by particular constituional guarantee violated would not be supported by suppression.  

1. Protection of life and limb; 
2. Protection of property; 
3. Protection of individual's privacy and dignity.  

1. Applies only in criminal cases; 
2. Not Parole Hearings; 
3. Applies to some quasi-criminal proceedings (such as civil forfeitures) 
4. Only prohibits admission at trial; AND
5. For impeachment.