• 4th Amendment
  • prohibition against unreasonable search/seizures
• 5th Amendment
  • privilege against compulsory self-incrimination
  • prohibition against Double Jeopardy
• 6th Amendment
  • right to speedy trial
  • right to trial by jury
  • right to confront witnesses (Confront. Clause)
  • right to assistance of counsel
• 8th Amendment
  • prohibition against cruel & unusual punishment
    
    • E.g., death penalty, prisoner rights

• Remedy where there has been an illegal search or a coerced confession--exclude product of that illegal search or that coerced confession
• Limitations: Excl. R. doesn't apply to:
  
  • grand jury proceedings
    
    • GJ witness may be compelled to testify based on illegally-seized ev
  • civil proceedings
  • parol revocation proceedings
  • use of excluded ev to impeach Δ (only Δ!)
    • Miranda violations qualify
  • violations of Knock & Announce rule
• On appeal: if improperly-obtained ev admit @ trial:
  • Harmless Error: upheld if same outcome

• 3 ways that gov't can "break the chain" b/w an OG, unlawful police action and derived ev"; the "3 I's":
  • Independent source for ev
  • Inevitably discovered by police anyway
  • Intervening acts of free will on part of Δ

The 4th Amendment protects citizens against unreasonable searches and seizures

• Arrests: must be based on probable cause
  • Warrant not req'd before arresting in public place
    • Non-emergency arrest of person in their home does require warrant
  • Need P/C to arrest to compel you to come to station for fingerprints or interrogation

4th Amendment:

Investigatory Detentions ("Terry Stops")

• P/O can briefly detain if has reasonable suspicion supported by articulable facts of criminal activity
  • Stop must be reasonable and P/O must have reasonable belief that Δ armed/dangerous
  • Purpose is to investigate suspicious conduct
  • If P/C arises during the stop, could become arrest and P/O could search incident to arrest
  • Mere hunch ≠ reasonable suspicion
• Use totality of the circumstances test
• Car stops: P/O can stop car if has reasonable suspicion that law has been violated
  • Exc: neutrally-applied checkpoints/roadblocks
• Sniff ≠ search (P/O can't extend stop though)
• Dog alert = P/C to search
  • Need P/C to sniff outside home of Δ!

Search & Seizure Model

For Answering Questions

Step 1. Was there governmental conduct?

Step 2. Did Δ have a reasonable expectation of privacy?

Step 3. Did police have a valid search warrant?

Step 4. Does the good faith defense apply?

Step 5. Do any exceptions to warrant requirement apply?

4th Amendment:

Governmental Conduct

• For purposes of the 4th Amendment, there must be governmental conduct/action:
  • Publicly-paid police
  • Any private individual acting at the direction of the public police
  • Privately-paid police ≠ gov't conduct unless deputized w/ power to arrest you
    • If see any of these, treat as not deputized:
      • Store security guards
      • Subdivision police
      • Campus police (for MBE purposes)

4th Amendment:

Reasonable Expectation of Privacy

• Automatic Standing if:
  • You own the premises searched;
  • You live on the premises searched (regardless of any ownership interest); or
  • You are an overnight guest of place searched
• Possible Standing if: you own prop seized and you have REP in item or area searched
• No standing: anything held out to public:
  • Sound of voice
  • Style of handwriting
  • Paint on outside of car
  • Account records held by bank
  • Location of car on public street/driveway
    • BUT, installation of GPS = search
  • Anything seen across an open field
  • Anything seen from flyover in public airspace
  • Odors emanating from luggage or car
  • Garbage set out on the curb for collection

• Two core requirements for facially valid S/W:
• 1. Probable Cause. Must be a fair probability that:
  
  • Ev of crime will be found in area searched
• 2. Particularity. Must state with particularity:
  • The place to be searched and
  • The things to be seized
• Use of informants. If affidavit or P/C is based on informant info, use TotC test to check sufficiency
  • Informant's credibility and basis of knowledge are relevant factors in making determination
  • Anonymous informants --> only "in part"
• "No Knock" Entry OK if exigent circumstances:
  • If K&A would be dangerous, futile, or inhibit
  • Why? Worried about destrux of ev

• P/O's good faith reliance on S/W overcomes defects w/ P/C or particularity requirements
• Four exceptions to the good faith defense:
  • Underlying affidavit is so lacking in P/C that no reasonable P/O would've relied on it
  • Underlying affidavit is so lacking in particularity that no reasonable P/O would've relied on it
  • P/O or prosecutor lied to or misled magistrate when seeking the S/W
  • Biased magistrate (wholly abandoned neutrality)

Exception to Warrant Requirement:

Search Incident To Arrest

• The arrest must be lawful
  • If arrest unlawful, then SitA is unlawful
• SitA must be contemporaneous in place and time
• Can search person and areas w/in wingspan
• Tech Searches. Ct balances degree to which SitA:
  • Intrudes upon person's privacy VS
  • Degree to which search needed to promote legitimate gov't interests
    • Can't search digital info on cellphones

Exception to Warrant Requirement:

Search of Automobile Incident to Arrest

• Gant Rule: P/O may search the interior of the auto accident to arrest only if:
  • Arrestee is unsecured (uncuffed &/or ran off) and still may gain access to interior of vehicle OR
  • P/O reasonably believes that evidence of offense for which person was arrested may be found in vehicle
• Can't open trunk/container unless have P/C for it
• SitA & DUIs: courts are mixed on this
• TIP: Doesn't matter if ev found is different than what gave rise for P/C--just focus on validity!

Exception to Warrant Requirement:

Community Caretaker Exception

• C-C Exception: P/O doesn't need S/W if he faces an emergency that threatens the health or safety of an individual or the public
• Sometimes called the "emergency aid exception"

Exception to Warrant Requirement:

Automobile Exception

• P/O must have probable cause BEFORE searching anything/body to get Auto/Exc
• OK if arises after stop but must have before search
• If met, can search entire car (including trunk)
• Containers? if it could reasonably contain item
• Compare w/ Search of Auto Inc. to Arrest (SAitA):
  • Under Auto/Exc, P/O can search interior and trunk; containers too if reas. containable
  • Under SAitA, P/O can only search interior of car
  • Under Auto/Exc, P/O needs P/C before searching anything or anybody
  • Under SAitA, P/O can search if arrestee is unsecured or reas. belief ev of offense is in car

Exception to Warrant Requirement:

Plain View

• To constitute valid plain view seizure, P/O:
  • Must be legitimately present at location where P/O does viewing of item seized; AND
  • It must be immediately apparent that the item is contraband or fruit of a crime

Exception to Warrant Requirement:

Consent

• For consent to be valid, it must be voluntary
• If P/O says he has warrant which is later deemed invalid, it negates consent (as being involuntary)
• 3P Consent: where 2+ people have equal right to use prop, either can consent to search.
  • Unless both present and one refuses
    • If refusing party is removed from prop for a reason unrelated to his refusal (such as a lawful arrest), then P/O may search upon consent of other party
  • Anyone w/ apparent authority can validly consent

Exception to Warrant Requirement:

"Terry Frisks"

• TEST: If P/O has reasonable suspicion req'd to conduct a Terry stop, he may conduct Terry frisk if:
  • The stop is reasonable and
  • There is a reasonable belief that the man might be armed and dangerous
• Frisk: patdown of outer clothing/body for weapons
  • P/O cannot manipulate!
• If car stopped for traffic violation and P/O meets test, then he may conduct both a frisk and search car limited to areas where weapon may be placed
  
• If P/O reasonably believes by "plain feel" that something is a weapon or contraband, he may remove the item (and it will be admissible as ev)
• If P/C arises during Terry stop (and frisk), then P/O may arrest and search incident to the arrest

Exception to Warrant Requirement:

Evanescent Evidence

• Evidence which might disappear quickly if P/O took the time to get S/W.
  • Can scrape suspect's fingernails (b/c might wash)
• Must get warrant before taking blood sample for DUI arrest if it is practical to do so.

Exception to Warrant Requirement:

Hot Pursuit of a Fleeing Felon

• Under the Hot Pursuit theory, the police can enter anyone's home without a warrant and any evidence that they see in plain view will be admissible.
  • If the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception!
• Example: P/O get call from X that fleeing felon ran into Y's house. P/O arrive at Y's house less than 15 minutes later.  They can now enter and seize any evidence seen in plain view.

Exception to Warrant Requirement:

Special Needs Searches

• Inventory searches: before incarceration of arrestee, P/O may search arrestee's:
  
  • Personal belongings and/or
  • Entire vehicle (including containers)
• Public School searches: can search PS kids' effects if investigating violation of school rules
  
  • Search is reasonable only if it:
  • Offers moderate chance of finding ev;
  • Measures adopted to carry out the search are reasonably related to objective of search; AND
  • Search is not excessively intrusive
• PS kids engaged in extracurricular activities (including school dances) can be rando drug tested

Exception to Warrant Requirement:

Wiretapping and Eavesdropping

• All wiretapping and eavesdropping req. warrant!
• Eavesdropping Exceptions: No 4th Am. right if:
  • Unreliable Ear: speaker assumes risk that person to whom they're speaking with will either consent to gov't monitoring or will be wired
  • Uninvited Ear: speaker who makes no attempt to keep the conversation private

• When Miranda required, suspect must be given following information:
  • You have right to remain silent;
  • Anything you say can be used against you in Ct;
  • You have right to an attorney; AND
  • If you can't afford one, one can be appointed.
• The warnings need not be verbatim, so long as the substance of the warnings is conveyed.
• What triggers Miranda: custodial interrogation
• EXAM TIP: if statement violates Miranda (and is inadmissible), may still be used to impeach Δ!
  

• In custody if, at time of interrogation, a reasonable person would not feel free to leave
  • Objective standard
  • "Not feel free to leave": in police car; in jail; in home; in hospital bed--ANYWHERE so long as:
    • Situation presents same "inherently coercive pressures" as a station house questioning
    • Probation interviews? not custodial
    • Routine traffic stops? not custodial
• TIP: Custody alone not enough--need interrogation in order for Miranda to apply!
  

• Any conduct that P/O knew or should have known might elicit an incriminating response from the suspect
  • Must be more than just rigorously questioning!
• Miranda warnings are not required prior to admissibility of a spontaneous statement

• Must be knowing and voluntary
• Courts will use a totality of the circumstances test in making this determination

• Invoking the right to remain silent:
  • Must be unambiguous
  • P/O may reinitiate questioning after Δ has invoked the RtRS if they:
    • Wait a significant amount of time;
    • Re-Mirandize Δ; AND
    • Limit their questions to a crime that was not the subject of the earlier questioning

• Invoking your right to counsel:
• Request for counsel must be unambiguous
• If accused invokes RtC, all questions must cease until:
  • Accused is given an attorney OR
  • Accused initiates further questioning
• However, if there is a "break in custody" (e.g., accused released into gen pop), P/O can come back and ask Δ to waive his Miranda rights after 14 days

5th Am. Right to Counsel

v.

6th Am. Right to Counsel

• 5th Amendment Right to Counsel
  • Arises when suspect invokes his Miranda rights and requests an attorney
  • Not offense-specific
    • Applies to entire process of custodial police interrogation
• 6th Amendment Right to Counsel
  • Attaches when the suspect retains counsel
  • Is offense-specific
    • Applies when Δ is asked questions about specific case for which he retained counsel
  • However, if Δ didn't request counsel (just appointed counsel), P/O can come back and ask him to waive his 6th Am. RtC and talk to them about crime for which he was charged

• Two ways to attack pretrial identification:
• Denial of the Right to Counsel
  • Post-charge lineups & show-ups give rise to RtC
  • No RtC when:
    • P/O shows victim/witness photos
    • Taking fingerprint/blood/handwriting
    • Pre-charge lineups
    • Parole/probation revocation proceedings
    • Brief recess during Δ's testimony at trial
• Denial of Due Process
  • Pretrial ID techniques that are so unnecessarily suggestive and substantially likely to produce a misID that they deny DP
• Remedy for unC pretrial ID: exclusion unless State can show adequate independent source for ID
  
  • Did V have adequate opportunity to observe Δ?

• Bail issues are immediately appealable
• Preventive detention is Constitutional

• Exclusion doesn't apply to conduct of GJ
• GJ witness may be compelled to testify based on illegally-seized evidence
• GJ proceedings are secret, meaning:
  • Δ has no right to appear
  • Δ has no right to counsel
  • Δ cannot send in his own witnesses

• Prosecutor's failure to disclose evidence, whether willful or inadvertent, violates DP and may be grounds for reversal of a conviction if:
  • Evidence is favorable to the Δ AND
  • Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed

• Right to an unbiased judge.  Bias means:
  • Having a financial interest in the outcome OR
  • Having actual malice against the Δ

• Attaches anytime Δ tried for an offense for which maximum authorized sentence exceeds 6 months
  • No RtJT if less than or equal to 6 months
• Number of jurors:
  • Minimum: 6 (verdict must be unanimous)
  • Maximum:12 (no right to unanimous verdict)
    • 10-2 and 9-3 approved
• Jury pool must reflect fair cross-section of community
  • No right though for empaneled jury
• Peremptory challenge based on race or gender = unC

• Δ's 6th Am. RtC applies to all critical stages of a prosecution, including trial.
• Ineffective Assistance of Counsel:
  • Deficient performance by counsel AND
    
  • But for such deficiency, there is a reasonable probability that the result of the proceeding would have been different
    • Must specify particular errors by trial counsel
      • Vague allegations of inexperience or ineffective trial tactics aren't enough

• Δ has right to defend himself so long as:
  
  • His waiver of counsel is knowing and intelligent AND
  • He is competent to proceed pro se
• It is possible for a Δ to be found mentally competent to stand trial yet incompetent to represent himself
  • Up to trial judge's discretion

• Absence of face-to-face confrontation b/w Δ and accuser does not violate 6th Am. when:
  • Preventing such confrontation serves an important public purpose AND
  • The reliability of witness testimony is otherwise assured
• Disruptive Δ may be removed from the courtroom, thereby relinquishing his right of confrontation

• If Δ pleads guilty, judge must specifically address Δ on the record about the following:
  • Nature of charge;
  • Maximum penalty and any mandatory minimum; AND
  • Right to plead not guilty and demand a trial
• Ct usually won't disturb guilty pleas after sentencing
• 4 bases to withdraw guilty plea after sentence:
  • Involuntary plea (mistake in plea ceremony)
    • Prosecutor's threat to charge Δ with more serious crime ≠ involuntary
  • Lack of jurisdiction
  • Ineffective assistance of counsel
  • Failure of prosecutor to keep an agreed upon plea bargain

• Automatic categories for death penalty are unC
• Any death penalty § that does not give Δ a chance to present mitigating facts & circumstances is unC 
• State may not by § limit the mitigating factors
  • All relevant mitigating evidence must be admissible or the death penalty § is unC
• Only a jury may determine the aggravating factors justifying imposition of the death penalty
  
  • Not the judge

• Jeopardy attaches in jury trial when jury is sworn
• Attaches in bench trial when 1st witness sworn
• Two crimes ≠ same offense if each crime requires proof of an additional element that the other does not

• Exceptions permitting retrial:
• Jury unable to agree upon verdict
  • "Hung jury"
• Mistrial for manifest necessity
  • Usually takes form of Mx emergency during trial (e.g., Δ has heart attack during trial)
• After successful appeal
  • Upon retrial, Δ can't be retried for a more serious offense than convicted of at 1st
• Breach of agreed upon plea bargain by Δ
  • Plea/sentence withdrawn, OG charges reinstated
  • Note: once you agree to testify as part of plea bargain, you must testify at the trial and any subsequent retrial

5th Amendment Privilege

Against Compelled Testimony

• Can be asserted by anyone in any type of case!
• Applies when asked a question under oath, wherein response might tend to incriminate
• Must assert privilege 1st time the question is asked
  • Or deemed waived for all subseq. prosecutions
• Must be claimed in civil proceedings to prevent privilege being waived for later crim prosecution
• Doesn't protect citizens from gov't using physical evidence to incriminate them
  • "Non-testimonial": blood/handwriting/hair/voice samples (also DNA swab after arrest if serious enough crime)

Eliminating the 5th Amendment Privilege

Against Compelled Testimony

• Can be eliminated in 3 ways:
• Under grant of immunity
• No possibility of incrimination
  • E.g., if SoL has run on the underlying crime, not entitled to 5th Am. Privilege
• Waiver
  • The criminal (not civil) Δ who takes the stand waives the 5th Am Privilege as to all legitimate subjects of cross-examination

• Unconstitutional for prosecutor to comment on:
  • Δ's failure (refusal) to testify
  • Δ's choosing to remain silent after being given Miranda warnings
• Prosecutor can comment on Δ's failure to testify when made in response to defense counsel's assertion that Δ was "not allowed to explain her side of the story"
• Prosecutor can comment on Δ's choosing to remain silent before being given Miranda warnings
• If prosecutor makes impermissible comments, apply the harmless error test