1. Publicly paid police, on or off duty

2. Private citizens acting at the direction of the police

3. Private security guards deputized w/ power to arrest

4. Public school administrators acting in official capacity

1. The person (body)

2. House (includes hotel rooms or overnight stays, and curtilage)

3. Papers (e.g., personal correspondence)

4. Affects (vehicles, purses, backpacks, etc.)

1. Paint scrapings (e.g., from a car)

2. Account records from a bank

3. Airspace - anything that can be seen from publicly navigable airspace

4. Garbage left on curb for collection

5. Voice recognition

6. Odors (e.g., from suitcase or car)

7. Handwriting

8. Open fields - anything that can be seen within or across them

The gov't agent either

(1) physically intruded on a protected area to gain info (GPS case)

(2) violated a reasonable expectation of privacy

(1) An actual or subjective expectation of privacy

(2) The expectation is one that society recognizes as reasonable

Note - a search is presumptively unreasonable if it uses a device not available to the public to explore a place of privacy (e.g., thermal imaging device)

One's own expectation of privacy must be violated - can't assert violations of the privacy of 3rd parties.

1. Owners and residents of premises always have expectation of privacy

2. Overnight guests have expectation of privacy as to places they can be expected to access (e.g., bathroom)

3. People generally have no expectation of privacy in the effects of others (e.g., girlfriend's purse)

4. Passengers have no reasonable expectation of privacy in a car they are riding in.

NY: passengers can claim violation of privacy in a car if ownership of a gun found in the car is attributed to them

1. Issued by a neutral and detached magistrate

2. Supported by probable cause and particularity (specify the place to be searched and the item to be seized)

3. Even if the above are not satisfied, police officer can rely on warrant in good faith (but not in NY)

4. Warrant was properly executed by police (limited to warrant specifications, knock & announce)

1. Doing so would be futile

2. Doing so would be dangerous

3. Doing so would inhibit the investigation

1. Exigent circumstances

2. Search pursuant to valid arrest

3. Consent

4. Automobile

5. Plain view

6. Inventory

7. Special needs

8. Terry stop & frisk

1. Evanescent evidence: evidence would disappear or dissipate before warrant could be obtained

2. Hot pursuit of fleeing felon: can enter home of 3rd party to search for fleeing felon, and ANY evidence in plain sight during the search is admissible

3. Emergency aid: objectively reasonable belief that someone inside is in need of emergency aid or to prevent injury

1. Arrestee's wingspan

2. Search of automobiles

3. Search of premises

Arrestee's body, clothing, and any containers w/in arrestee's immediate control

Includes "grab area" - any area into which arrestee might reach and grab a weapon.

New York: can't search closed containers found on wingspan unless police suspect that arrestee is ARMED.

Limited to interior cabin - includes closed containers but NOT the trunk (hint: look for another way police can search trunk, e.g., probable cause w/ automobile exception)

If arrestee has been secured, search is limited to circumstances in which police suspect that car contains evidence RELATING TO the crime for which arrest was made.

New York: once arrestee is out of the car, police can't search containers inside the car.

Consent must be intelligent and voluntary - but police don't have to tell you that you have a right to refuse.

Consent extends to search of all areas that police would reasonably believe permission was granted to.

Anyone with apparent authority to grant consent.

A roommate can grant consent as to common areas, but if any other roommate objects, the objecting roommate prevails.

When there is probable cause to believe that contraband or evidence of crime will be found in the car.

Can search entire vehicle, including trunk, and any containers that may reasonably contain the evidence for which there was probable cause to search.

1. Lawful access to a place where the evidence can plainly be seen

2. Lawful access to the item itself

3. Item's criminal aspect is immediately discernible

1. Regulations governing inventory searches are reasonable in scope

2. Search itself complies w/ regulation

3. Search conducted in good faith - motivated solely for need to safeguard owner's possessions or preserve officer safety - not conducted as pretext

1. Railroad employees following an impact accident

2. Customs agents responsible for drug interdictions

3. Public schoolchildren participating in any extracurricular activity

NOT allowed if the primary purpose is to gather criminal evidence for law enforcement

Any circumstance under which a reasonable person would not feel free to leave

Factors:

1. Whether officer brandishes a weapon

2. Officer's tone and demeanor

3. Whether person was informed of right to refuse consent

MBE: it's only a seizure if the person submits or if the police actually restrain her

New York: pursuit in and of itself is a seizure

Brief detention or seizure to investigate suspicious conduct.

Officer must have reasonable suspicion - articulable and specific facts that inform her belief that criminal activity is present

Patdown of body and outer clothing

Allowed only if officer has reasonable suspicion that suspect is armed and dangerous

Can only seize what reasonably appears to be a weapon or contraband that is immediately visible as such

New York: only what reasonably appears to be a weapon may be seized

Evidence obtained in violation of a federal statute or constitutional right is inadmissible in court.

Applies only if officer conduct was deliberate, reckless, or grossly negligent.

Doesn't apply to grand jury proceedings or prosecution's impeachment (only excluded from prosecution's CIC)

Doesn't apply to knock-and-announce violations

Doesn't apply to evidence erroneously obtained in violation of search warrant so long as officer acted in good faith.

1. Independent source: source of evidence independent from original illegality - distinct, legal, parallel process

2. Inevitable discovery: evidence would inevitably have been discovered by other means.

3. Attenuation: passage of time and intervening events have purged the taint of original illegality, restoring ∆'s free will.

1. Must name the suspected persons whose conversations are to be overheard

2. Must be for strictly limited period of time (NY: no more than 30 days)

3. Must have probable cause that a crime has been committed

4. Must describe with particularity the content of the conversations hoped to be overheard

Proof of a fair probability that evidence of crime or contraband will be found in the area searched.

Hearsay is admissible to support probable cause.

MBE: when it rests on corroboration by the police  of enough of the tip to allow the magistrate to make a common-sense, practical determination that practical cause exists based on a totality of the circumstances.

New York: police must show (1) the basis of the informant's tip and (2) evidence of the informant's veracity or reliability (Aguilar-Spinelli)

When it occurs in a public place, and

for a felony: officer has probable cause that the arrestee committed a felony

for a misdemeanor: misdemeanor was committed in the officer's presence

An arrest warrant, unless there is an emergency.

For an arrest in a 3rd party's home, police need both an arrest warrant and a search warrant to enter the home.

Protects against involuntary confessions

Involuntary confession: confession that is the product of police conduct that overbears the suspect's free will.

MBE: When ∆ is formally charged, and at all critical stages in the prosecution.

New York: indelible right to counsel - attaches when there is significant judicial activity before filing, when ∆ would benefit from counsel

Note - this right is offense-specific

Right to remain silent - anything you say can and will be used against you

Right to counsel - if you can't afford a lawyer, one will be appointed for you

When ∆ is in custody: atmosphere of police domination and coercion such that ∆'s freedom is limited in a significant way

When ∆ is under interrogation: any questions, words, or actions police should know could elicit an incriminating response

1. Must unambiguously revoke - just staying silent has no effect

2. Police officers must scrupulously respect the request to stay silent by refraining from badgering ∆ for a significant period of time.

3. To resume questioning, police officers obtain valid Miranda waiver.

1. Request must be sufficiently clear for a reasonable officer to understand that it is invoking the right to counsel.

2. All interrogation must cease unless initiated by ∆ or in the presence of counsel.

3. Expires 14 days after ∆ is released from custody.

1. Knowing and intelligent: ∆ must understand her rights and the consequences of abandoning them

2. Voluntary: not the product of police coercion

3. Can be implied by a course of conduct indicating a desire to speak to officers

New York: child's waiver is invalid if police use deception of concealment to keep a parent away from the child being interrogated

1. Exclusions apply only to prosecutor's CIC; can be used to impeach ∆ on cross

2. Does not result in the suppression of physical fruits of ∆'s statements, so long as they are voluntary

3. Does not suppress subsequent statements made after obtaining voluntary waiver, if first violation was not obtained by inherently coercive police tactics

Lineups: W asked to identify ∆ from group

Showups: W and ∆ have one-on-one confrontation

Photo array: W asked to pick photo of ∆ from group of photos

Denial of 6A right to counsel: applies to lineups and showups after formal charging - police have affirmative duty to ensure that counsel is present.

New York: applies even before charging if ∆ has counsel and requests that counsel is present.

Violation of due process: ID is so unnecessarily suggestive, creating a substantial likelihood of irreparable misidentification

Witness's in-court identification is excluded UNLESS prosecution can show that in-court ID is based on observations of ∆ other than at the invalid pre-trial identification:

W had seen ∆ at the crime scene for extended periof of time; certainty of W's pre-trial ID; specificity of W's description of ∆ to police

Issue indictments in secret proceedings.

New York: indictment must establish all elements of the offense and provide reasonable cause to believe that the accused committed the offense.

Hearsay and evidence subject to exclusion under exclusionary rule are ADMISSIBLE in grand jury proceedings.

Probable cause

Hearing for probable cause unnecessary if grand jury has issued an indictment or if magistrate has issued an arrest warrant.

Soon after being detained, ∆ must be brought before a magistrate who:

1. Advises her of her rights

2. Sets bail (immediately appealable)

3. Appoints counsel, if necessary

1. No financial stake in outcome

2. No actual malice towards ∆

Must be fair and impartial and drawn from a pool representing a cross-section of the community

Minimum of 6 - NY requires 12, but ∆ can waive and proceed with 11

Counsel cannot use peremptory challenges to dismiss jurors based on race or gender.

No - forcing ∆1 to take the stand will violate 5A privilege against self-incrimination, and w/o ∆1 taking the stand, ∆2's 6A right to confrontation is violated.

Exceptions: 

1. ∆1 voluntarily takes the stand, subject to cross about the truthfulness of her confession

2. All portions of ∆1's confession relating to ∆2 are eliminated

3. ∆1's confession is used only to rebut ∆2's assertion that his confession was obtained coercively.

2-pronged test:

1. Counsel's performance fell below objective standard of reasonableness, such that she was not functioning as counsel.

2. Prejudice requirement: outcome of trial would have been different but for counsel's performance.

Basically, no IAOC challenge w/o some showing that ∆ isn't guilty.

Used by judge to confirm plea's validity; must address on the record that:

1. ∆ has a right not to plead guilty

2. The nature of the charges against ∆, including elements of the charged offense

3. Maximum and minimum penalty of charges

4. Consequences of plea (waiver of right to not plead guilty, trial, etc.)

1. Plea was involuntary due to defect in plea-taking colloquy

2. Jurisdictional defect - wrong court took the plea

3. ∆ prevails on claim of IAOC

4. Prosecutor fails to fulfill her part of the bargain

Death penalty cannot be imposed on:

1. ∆s with mental retardation

2. ∆s who are presently insane

3. ∆s under the age of 18 when the relevant offense was committed

1. Jury trial: when the jury is sworn in

2. Bench trial: when the first witness is sworn in

3. Guilty plea: when the court accepts ∆'s plea unconditionally

Federal: 2 offenses not the same if each contains an element that the other does not

New York: transaction test - ∆ must be charged w/ all offenses arising out of a transaction UNLESS

1. Offenses have substantially separate terms

2. Each offense contains an element not in the other AND they prevent different HARMS

3. One charge is for criminal possession and the other is for criminal use

4. Each offense involves harm to a different VICTIMS

When the charging entities are different sovereigns:

1. State and federal gov't = different sovereigns

2. Different states = different sovereigns

States and municipalities within them however are the SAME sovereign.

1. First trial resulted in hung jury

2. Mistrial for "manifest necessity" - e.g., defect in indictment

3. Successful appeal - unless reversal on appeal was based on insufficiency of evidence

4. Plea agreement breached by ∆

5. Termination occurs at the behest of ∆ on any grounds not constituting acquittal on the merits (e.g., technical defect)

By any person testifying under oath 

New York: 5A privilege can't be invoked in grand jury proceedings.

1. Grant of immunity

2. Criminal ∆ taking the stand

3. Statute of limitations has run on the underlying privilege

Use and derivative use: prosecutor is barred from using the testimony and anything derived from the testimony against you.

Transactional immunity: prosecutor is barred from using any transaction that you testified about against you.