THE FOURTH AMENDMENT AND THE DEPRIVATION OF LIBERTY State Action Arrest Terry Stop Stop and Inquire

4th Amendment Detentions Predicate s rights PC 0 RASCAAF 0 0 Right to refuse

1. Arrest a. PC b. = no right to refuse c. No warrant in public place i. Hallway in apt. building if buzzed in is not public place 2. Terry Stop a. RASCAAF b. = no right to refuse 3. Stop and Inquire a. Nothing b. = right to refuse i. Refusal will not = RASCAAF, you need TOC. 4. Predicate a. Must be present before the seizure. Cannot develop after. b. Look at purpose and duration of stop. California v. Hodari: Seizure means "taking possession". Occurs when subject yields to seizure. RPP would believe not free to leave. Ex: pursuing officer shoots at suspect, misses. Evidence abandoned in continued flight is admissible. Ex: pursuing officer shoots at suspect, hits him. Evidence found would be inadmissible b/c of unlawful seizure. Ask: 1. What happened to evidence? He threw it. 2. Was he seized? 3. If so, was the necessary predicate present? 4. Can it be suppressed? United States v. Drayton: RPP would have know they could leave, thus not a seizure. Officer had voluntary consent to search. Plain feel doctrine: you must be lawfully present and it must be immediately apparent that crime/contraband is present/about to occur. THE SLIDING SCALE OF SUSPICION Random Spot Checks Prouse Sitz Check for unlicensed DWI check point, safety, drivers random no par. Suspicion, policy/not random No Yes Edmond Check point to interdict drugs, 9% hit rate, NARC dog, no part. suspicion No less intrusion. Need policy or method.

Reason

Outcome

Delaware v. Prouse: Detaining driver unreasonable under 4thA. Spot checks are OK State interest in "safety" was not being served.

Michigan Dept. of State Police v. Sitz: Three Pronged Test: State interest in safety purpose, effectiveness, and level of intrusion. Seizure occurs when vehicle stopped at checkpoint. Must have pattern (not random or arbitrary) and must have policy that is utilized by that agency

City of Indianapolis v. Edmond: If purpose is for generalized criminal wrongdoing, there needed to be some quantum of individualized suspicion. Had to be for safety. Cannot be general interest crime control. Roadblock Rule: 1. Must be for safety purposes 2. Pattern not random or arbitrary and 3. Must have policy that is utilized by that agency. Ex: If cop stated they are looking for impairment, stop would have been okay for safety purposes. But use of dog changes purpose and requires particularized suspicion for that person (PC) because it is a search. Ex: Checkpoint in hit and run case, even though drugs were recovered on and it wasnt purpose of stop.

Nowell v. Cincinatti: One is not to be punished from nonprovocatively voicing objection to what one feels is questionable detention by an officer. Brown v. Texas: RASCAAF is required prior to conducting search Hibel v. Sixth Judicial Court of Nevada: To ensure resulting seizure is constitutionally reasonable, a Terry stop must be limited. RASCAAF. Officers actions must be justified at its inception and reasonably related in scope to the circumstances that justified the intereference in the first place. Terry v. Ohio: PO lacked PC to arrest at time of "stop and frisk" but had RASCAAF, which authorized the stop and inquire. Then, had RASPAD, which authorized the pat down. Search of outer clothing not intrusive and reasonably limited in scope (cannot go inside). Plain feel will get you inside = PC. Sibron v. New York: Officer lacked PC (and could not do search), and could also not argue RASPAD (for the pat down). Peters: Officer had PC, and could conduct search incident to lawful arrest. You do not need RASCAAF and do not need to justify the search. The 4th Amendment Exceptions: 1. Terry Stop: RASCAAF 2. Terry Frisk: RASPAD a. Officer must be: i. Lawfully present (ex: public property v. inside home) ii. And it is immediately apparent that it is contraband (=PC) b. Plain i. View 1. Did the officer see it himself? ii. Feel 1. No squishing/manipulating of the object. 2. Must be immediate suspicion iii. Smell iv. Hear v. You may also use things that enhance your natural capability. 3. Search Incident to Arrest (SIA) a. No PC requirement b. Can search immediate grab and destroy area c. Where they arrest is critical to the scope of where they can search for SIA. 4. Inventory search a. Can search trunk of car. 5. Auto Exception a. No Warrant b. Lower expectation of privacy b/c registered to state and on public road c. Reasonable expectation of privacy i. s manifested subjective intent to keep the item private ii. Is that expectation reasonable

d. SIA i. Officer can search vehicle under RASCAAF, but not trunk. ii. Gant: is he within reachable distance of the passenger compartment. You can search the passenger compartment and all containers therein. The only way you get into the trunk is if you can argue that the car has become a container that contains the drugs. iii. If there is PC to search the car at the scene, there is PC to search the car back at the precinct. This does not apply to luggage. e. Container Doctrine: i. If the container contains the object, you can search the rest of the container. 6. Exigency a. Can enter home w/o warrant b. Hot pursuit c. Destruction of evidence i. Ex: witness running towards bathroom with evidence in hand d. Threat to safety STEPS 1. Is there a seizure? a. Was it an invitation a RPP would believe they could refuse. b. Invitation = cops do not need particularized suspicion i. Did Suspect submit voluntarily? c. Order = cops need particularized suspicion i. Submission results in 4thA detention ii. Need RASCAAF iii. Cannot do frisk b/c missing particularized suspicion. Alabama v. White: Terry stop is lower standard than PC, and corroborated tip was enough to establish RASCAAF. Michigan v. Long: Officers may search the immediate grab and destroy area if they have RASPAD. If there is RAS that PAD, the police may search any container remaining in the passenger compartment. is

Ex: Cop sees a knife in plain view in car. Analysis: Was cop lawfully present? Yes. Was it immediately apparent? Yes (plain view). What did cop do? Frisked . Was there anything there? No. Why could cop look into armrest? RASCAAF: you can search any compartment in the vehicle (minus the trunk). Ex: Can officer look in briefcase? Yes. Bag that was in the backseat that is now on passengers shoulder (who is not a suspect)? No it is attached to the person. There would have to be RASPAD for the passenger. Minnesota v. Dickerson: Officer had RASCAAF for stop, and had RASPAD for frisk, but did not obtain PC through plain feel b/c he had to manipulate the object. Illinois v. Caballes: During lawful traffic stop, the sniff was not an intrusion because it was of the exterior of the car, and did not violate s expectation of privacy. Ex: Use of thermal imaging device to look in home of suspect, which picked p both good and bad stuff. If you have an objective intent to keep your things private, and that expectation of privacy is reasonable, it may be a violation. Ex: What if officer called over a narc dog during a traffic stop in a neighborhood known for drug traffic and it will only take 5 minutes? What you need for a search (not a frisk) is PC, and it will get in under the plain smell doctrine b/c a dog is considered an extension of your nose. Ex: Consent to search upon entering sporting venue. Can you refuse to walk by the narc dog? If it is run by a private company, there is no 4thA violation. They can pat you down they are not an agent of the state. Furthermore, odor is readily available to the public/in the public sphere and you have no expectation of privacy. Dunaway v. New York: A RPP in s circumstances would not have felt free to leave. The TOC = arrest. Police did not have enough for an arrest warrant, and statements were inadmissible. You do not need the words for there to be an arrest. You look at TIC. You are looking for a police dominated environment which makes it more than a fleeting Terry stop. Look for purpose, location, and duration to establish that there has been an arrest.

Michigan v. Summers: A warrant to search for contraband, founded on PC, implicitly carried the limited authority to detain occupants while a proper search was conducted. There was no particularized suspicion of , thus no arrest warrant. But a warrant to search a premises gives the authority to hold the occupants of the premises. As long as you are in a public place they may detain you b/c they have RASCAP they will be getting PC from the house. Occupant = someone who has an interest in the space. Ex: two officers are en route to execute a warrant at s house. One detains (three blocks from house) while Two goes to the house. The warrant is for cocaine. Because street drugs = weapons, they then frisk the (b/c they had RASPAD). p If police have PC to obtain a search warrant for a premises, they also have a right to detain an occupant of that same premises. If police have a valid search, they are permitted during the execution of that search warrant to detain the occupants of that premises. p You dont need warrant to frisk b/c it is unreasonable to wait ARREST Draper v. United States: Once the information from the reliable informant was corroborated by the officers, there was reasonable belief that the drugs would be present which gave them PC for the arrest. p Eyewitness descriptions are the worst you need to verify the information. The more vague the description, the harder it is going to be to overcome the objection if you use the description for PC.(if you have plain view etc you can use that instead) p You need to narrow the universe. Once the info is corroborated, this becomes the bridge between the innocent information and the inculpatory information. p PC to arrest was objectively present at the time the arrest was made, but not essential that officer making the arrest have personal knowledge of its justification. Ex: officer instructed by radio bulletin to arrest may do so legitimately without further explanation. Hill v. California: When police have PC to arrest one party, and when they reasonably mistake a second party for the first, then the arrest of the second is avalid arrest. No warrant, but stepped outside. Even though he said he wasnt Hill and produced ID. p If the police have a good faith belief, they get a pass. Would a RPP in their shoes have believed that X was Y. Ex: If you open the door to the police and they see drugs, they cannot come in w/o a warrant. They need an exigency (such as destruction of evidence) and then they can run in. Ex: Passenger of a vehicle has no standing to get proceeds from a search suppressed because if it is a good faith belief it is in. (factually determined) Michigan v. De Fillippo: When police have PC to arrest, regardless of whether you were actually committing crime, they have the PC to justify a warrantless search of your person. Summary: 4th Amendment requirement Exceptions: Terry Stop Terry Frisk SIA Inventory Search Auto exception Consent Hot pursuit Destruction of evidence Plain view/feel/smell Method of accomplishing arrest Warrant supported by PC RASCAAF RASPAD Lawful arrest lawful seizure of vehicle lower expectation of privacy Right to refuse Gives you PC May need warrant/must be lawfully present

Payton v. New York: Police cannot enter sanctity of home for arrest even if they have a warrant for the arrest (but not the entry) and PC unless there is an exigency. Absent exigent circumstances, a warrantless arrest within a residence is constitutionally impermissible. Ex: If officer knocks and opens the door, this is okay. Officer can even step out of sight (pre cautionary self defense)

Ex: A RPP with several officers at their door and yelling would not feel free to ignore their implicit command to open the door. Ex: Police action in making a phone call to the residence occupied by two s was not entrapment b/c the police did not tempt, induce, or entice s to commit any criminal offense. Welsh v. Wisconnsin: To enter a private residence w/o a warrant is presumptively unconstitutional unless you are in: 1. Hot Pursuit Doctrine: Actively chasing + Immediate and continuous 2. Threat to private and Public Safety 3. Destruction of evidence 4. Other exigent circumstance (whether the violation is reasonable under the circumstances) Ex: Soccer mom case: With PC an officer can make a custodial arrest (as opposed to merely issuing a citation) for a misdemeanor that did not involve a breach of the peace. Did not need warrant b/c public street. There is also an accepted exigency b/c they did not have time to get the warrant. Police also have the power to arrest based on information from a complainant or eye witness. Ex: temporarily keeping a person from entering his home, a consequence whenever police stop a person on the street, is considerably less intrusive than police entry into the home itself in order to make a warrantless arrest or conduct a search. THE FOURTH AMENDMENT AND THE SEIZURE OF EVIDENCE OBTAINING SEARCH WARRANTS Warrants must be particular and describe the place to be searched, and the person or things to be seized. Method of Execution Groh v. Ramirez: A warrant that lacks particularity cannot be cured by an application for a warrant that does state what is to be seized. Ybarra v. Illinois: Police can detain occupants of a premises that is under a warrant driven search, but if you want to frisk someone outside of the parameters of the warrant you need RASPAD. Exception to PC: Terry Stop. You better answer me is a command. You do not need PC b/c of RASCAAF. If you want to pat them down: RASPAD (you need facts to prove RASPAD) Informants: Confidential informants, victims, eyewitnesses. Undercover officers and victims do not need corroboration. Spinelli v. United States: information from an informant must be corroborated prior to the execution of a warrant. Reputation of a and some innocent observances are not enough. Ex: In many cases PC may be present but the affiant has failed to articulate the facts known with adequate specificity. Ex: Many courts have indicated that only information submitted to the magistrate in writing can be considered in determining PC, enabling an appellate court to review a determination. Illinois v. Gates: The TOC can be used to corroborate an informants tip. With the corroboration of innocent information you have built the bridge that the inculpatory information is also correct. The question is what reasonable inference can you draw. Credibility (basis of knowledge) + Reliability (history of accuracy). Look at the TOC

Bodily Intrusions Rochin v. California: Entering a private residence w/o a warrant and forcing shocked the conscience to have stomach pumped to retrieve narcotics

Ex: Judo choke during arrest to get narcotics was too extreme. There were other methods (nature) available. Ex: Forcing open the mouth of during arrest and using pen cap to retrieve marijuana was reasonable b/c it would have been visible had his mouth been open. Ex: Forcing into involuntary ejaculation to prove that he gave niece the disease was unreasonable

Schmerber v. California: The non consensual drawing of blood was constitutional b/c it was done in the hospital by a medical professional. Look at (A) is the test necessary and then (B) reasonableness of the (1) means and (2) manner [exigency (loss of evidence) + blood test (easy since already happening) + needle (nurse)] Ex: If had on bracelet indicating he is hemophiliac, the means portion would fail unless already injured and needed attention. Exigency time is of the essence

Ex: Not a search when a who had pulled fire alarm that had previously been marked with paste that appeared under ultra violet light had to show his hands. Ex: When the charge is battery, the compulsion for necessary to prove the charge. who may have AIDS to get a blood test is unreasonable b/c it is not

Winston v. Lee: Even with PC the search to remove the bullet from s body was unreasonable b/c they had ample evidence without it. Ex: Laxative given to to speed the process of the cocaine baggy was reasonable b/c although a medical procedure and intrusive, the personal safety of the outweighed his privacy interests. Ex: When the immanency for the potential loss of evidence is unknown, the use of an anesthetic to render the (even when also being used to treat a possible drug overdose) this was unreasonable. Wire-tapping and Electronic Eavesdropping Katz v. United States: Penetration of the airspace or not doesnt matter. intrusion was a violation of that right. Look at : (1) Subjective (actual) expectation of privacy that is manifested by (2) Society deems that expectation reasonable United States v. Knotts: Beeper placed in container was not used by police to gain access to inside of the private property, but to follow the an action that was voluntarily conveyed to anyone who wished to look. Told the authorities nothing about the interior of the cabin. United States v. Karo: Installation of the beeper into the container (prior to being in possession of ) was not a violation. Continual monitoring of the beeper when in the house would be a violation. Use of the beeper to determine its location was not a violation. However, use of the beeper to confirm that the container was still in the house (when they were visually surveying the property and had no reason to believe it had left) was a violation. ASK: If it is inside the structure, is what they are looking for visible? Can they smell it? Can they hear it? If they are using technology that answers yes, but naked eye/ear/nose would not it is inadmissible and an intrusion. Need a warrant. had communicated his intent to be private and the unconscious

Kyllo v. United States: Use the thermal imaging device was an unreasonable search b/c it was used to explore details of the home that would previously have been unknowable without physical intrusion. WARRANTLESS SEARCHES Incident to Arrest Chimel v. California: Arrest warrant does not give search warrant beyond protective search. United States v. Robinson: A SIA after a traffic stop (with PC to arrest) that included only a frisk of the authority of the officer. was reasonable and within

Knowles v. Iowa: A SIA for a routine citation traffic stop (even though could have been arrested) did not warrant a full search of the vehicle because it was just a citation there was no further evidence needed. Pennsylvania v. Mimms: requesting to step out of vehicle okay, the TOC gave officer RASPAD, thus the frisk was reasonable. The weapon was immediately apparent, and officer was lawfully present. United States v. Chadwick: with no exigency and remoteness in time, the search of the footlocker that was seized during a lawful arrest was unreasonable. New York v. Belton: when is under a lawful custodial arrest, a SIA of the passenger compartment of the vehicle is reasonable. is still in the vehicle.

Thornton v. US: Span of control is not governed by whether or not the

Arizona v. Gant: Police may SIA a car only if the arrestee is w/i reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest SIA: 1. Lawful Arrest 2. Immediate Grab and Destroy Area a. Where are they arrested? b. What is the wingspan area? c. Scope = person d. Bags and luggage: if in immediate grab and destroy area, you can search e. Car: recent occupants or if near the car. Can search both the person and the car. i. OR a reasonable belief that evidence of the arrested crime is in the car PLAIN VIEW/smell/hear 1. Lawfully present (to view/smell/hear) 2. Immediately apparent the object is contraband. a. Gives you PC for i. Search warrant OR ii. Seize the object based on exigency or other warrant exception Ex: is arrested on the street and has a briefcase in his possession at the time of the arrest. Scope = person and briefcase

Ex: is arrested on the street. Officer calls for backup, places in back of RMP and takes briefcase to precinct. Scope = person. Cannot search the briefcase because remote as to time and place Ex: s car is stopped and is arrested while outside of the car. Where he is standing will determine if you can search the passenger compartment of the car. Arizona v. Hicks: Officers entered apt w/o warrant b/c bullet fired through the floor to look for shooter/victims/weapons. Moving the stereo to find the VIN was a search and needed to be supported by an exigent circumstance or PC. United States v. Jacobsen: Package damaged while in transit. Government is permitted to use privately revealed information. Actions by DEA to test the substance was a de minimus extension of the scope of the search already conducted by the private

party. Open Fields Oliver v. US: individual may not legitimately demand privacy for activities conducted outside except in area immediately surrounding home. Curtilage Search not permitted to enter area to search b/c curtilage is considered part of the sanctity of the home and is afforded much more protection. Need a warrant or exigency. Determination: 1. Proximity to the home 2. Nature of the uses 3. Steps taken to prevent observation 4. Included in enclosure surrounding home (fence, barrier, etc). United States v. Dunn: Police made warrantless entry onto s property. They cross 2 fences and could smell odor from barn. Looked into barn through slats. Used this info to get warrant. Barn was not found to be w/i the curtilage of the home, was not protected, and thus information could be used. Ex: Small hole in the blinds was insufficient to negate the s reasonable expectation of privacy, and thus Officers use of a crate to peer into the room was violation. Aerial Surveillance California v. Ciraolo: s manifested intent to keep their yard private from the street but not from the public navigable airspace above the yard. Vertical curtilage needs to also have manifested privacy intent. Abandoned Property California v. Greenwood: The warrantless search and seizure of the garbage left for collection outside the curtilage of the home was valid. Ex: Passenger who lets a package drop in a taxicab has not abandoned their property. Also, if the abandonment is result of unlawful police activity the seizure will not be sustained. Ex: Cigarette butt flicked into bin on owners patio was NOT abandoned because tenant was responsible for taking trash to curb. However, if tossed in a public area, it is abandoned. Consent Consent is an exception to the warrant requirement, thus the authority to search is no greater than that given by the consenting party, both as to scope and time. Requirements: 1. Freely given 2. Voluntary 3. Choice (yes/no) Scope of the consented search: p Limited to the area that you consented to. Consent Owner = constructive Possession Actual power of consent Apparent authority if you dont, did the cop have a good faith belief?

Consent allows a person who is not on the premises Bumber v. North Carolina: POs wrongly claimed they had search warrant to s grandmother. She did not give consent because announcement of a warrant means the occupant has no right to resist the search. Ex: A roommate cannot give consent to a non common area unless they have D&C over that space. Ex: Computer files were not open to search under a consensual search b/c the POs did not announce, before what they were investigating. Ohio v. Robinette: gave consent,

does not need to be given notice that they have the right to search, the consent need merely be voluntary.

United States v. Drayton: Not a problem that s were not told they could leave while on a bus b/c 4th A allows POs to approach. TOC controls. Georgia v. Randolph: A physically present co tenants stated refusal to permit entry prevails, rendering warrantless search unreasonable and invalid as to him. The disputed invitation, without more, gives POs no better claim to reasonableness in entering than entering w/o any consent at all. If the naysayer is NOT present, their refusal doesnt matter. Co Tenant Consent Analysis: 1. Are both tenants present? 2. What is the area to be searched? 3. Do both tenants have joint authority over the search area? a. No: only the person who has the authority need give the consent. 4. No evidence that the police removed the potentially objecting tenant from area to avoid objection. Vehicles: With PC Vehicle: readily mobile. Readily insinuates there is a lag time. It is about capability of vehicle to be mobile. Chambers v. Maroney: Cars may be searched w/o warrant provided there is PC to believe the car contains articles POs are entitled to seize. Ex: The circumstances that give PC to search a particular car for particular articles: if an effective search is to be made at any time, either the search must be made immediately w/o a warrant or the car itself must be seized and held until warrant obtained. California v. Carney: The ready mobility of a car justifies a lesser degree of protection of those interests. The fact that lived in the motorhome and had doors and blinds closed did not matter. POs just need same requirements as regular vehicle search. United States v. Ross: Warrantless search of car stopped by POs who have PC to believe car contains contraband is not unreasonable under 14th A. Officers could go in trunk for the contraband. Note: if you only have PC to the trunk, you cannot search the rest of the car unless you have arrested the and they are in the immediate grab and destroy area of the trunk, or you have a reasonable belief the car holds more evidence supportin the arrest. Ex: if you find drugs on , this gives you the reasonable suspicion there are more drugs in the car. Analysis of what gets you into the car: 1. SIA (Gant) a. Reasonableness (evidence of the arrestable offense) b. Reachable c. Cannot transport it to precinct to search b/c too remote in time/place (not contemporaneous) 2. RASPAD 3. PC a. That passenger compartment contains contraband b. If you have PC to search at the scene, you can also transport it to the precinct to search it there.

Wyoming v. Houghton: Car stopped for speeding, which gives POs RASCAAF, and can then look for weapons under RASPAD. Passenger s purse was still in backseat and was open to the search. There is no ownership distinction there doesnt need to be particularized suspicion or PC for each passenger. The belongings attach to the car and become a container within the container. Note: if the vehicle passenger seeks to take the purse with her when she exits, the purse may not be searched under the vehicle search rationale. California v. Acevedo: Placement of bag in trunk that contained contraband made the trunk the container that now had the PC, and b/c in the trunk, the auto exception applies. PC transfers from bag to the trunk which now contains the bag. PC does not transfer to entire car, still only with bag which overcomes the auto exception. Ex: If the bag that contains contraband is held by a , the bag is protected and you will need a warrant. You cannot used PC to open the bag. However, if you believe that is armed, you can use SIA to get in the bag. Vehicles: The Inventory Rationale Cady v. Drombrowski: claimed he was PO in another city when arrested for speeding. Later search of the trunk when car placed on public lot while detained was reasonable under concern for public safety. Notes: Harris: intrusion into car was to safeguard the owners property. Cooper: intrusion into car was to guarantee the safety of the custodians. Inventory Exception 1. Lawful seizure of the car 2. Written standard procedure regarding inventory of the car (SOP = standard operating procedure) a. Evidence of the crime b. Threat to public safety c. Forfeiture (connected to evidence of the crime, ie used in commission of crime) d. Overdue parking tickets Vehicle search w/o PC is reasonable when 1. Police have lawful custody of a vehicle subject to forfeiture (Cooper) 2. Vehicle is itself evidence of the crime (Harris) 3. The presence of the vehicle poses a threat to public safety, the party in interest is incapable of making arrangements for its reoval, and there is reason to believe (but NOT PC) that a weapon may be within (Cady) Ex: Looking for VIN number on car initially stopped for cracked windshield was reasonable search and seizure under 4th A b/c should have been in plain view. Ex: Tarp that was covering car could not be removed to find the VIN number because there was no PC to look for the VIN. Colorado v. Bertine: Inventory of s van was taken on the spot. It was conducted according to SOP and was used to protect the owners property while in custody of the police. Exigent Circumstances To not have a warrant for a search is presumptively unconstitutional. Take each piece of evidence and ask 1. Where was the evidence? 2. Why was it reasonable? Warrantless Entries into a home are justified when 1. Hot pursuit of a felon 2. Imminent destruction of evidence 3. Need to prevent suspects escape 4. Risk of danger to police or others Warden v. Hayden: the warrantless search of s home (accused of armed robbery) was reasonable for search of weapons.

United States v. Rohrig: Neighborhood complaints of noise justified the warrantless entry into the home due to public safety. Three considerations: 1. Whether immediate government action is required 2. Whether government interest was sufficiently compelling to justify a warrantless intrusion 3. Whether a citizens expectation of privacy was diminished in some way VINDICATING CONSTITUTIONAL VIOLATIONS Standing Violations of the 4th A are vindicated by: 1. Do you have standing? a. A constitutional claim against government agent b. Ask what did have D&C over Rakas v. Illinois: The protection is based on the persons relationship to the area to be protected the space. they must have D+C over

Ex: could not object to the seizure of narcotics found in his companions purse, notwithstanding the fact that he claimed ownership of the purses contents. Minnesota v. Carter: s who were present for business purposes had no standing to argue search violation under 4thA. The viewing through the window blind did not equal a search. They had no legitimate expectation of privacy. The Exclusionary Rules Applies to the 6thA right to counsel if the statement was procured by the state in violation of the clients right to Derivative/Primary (statement) v. Secondary Evidence (gun): p Where there is an unreasonable search or seizure it is not automatic that the evidence will be suppressed. If police had good faith belief that the warrant was good, the evidence comes in. p Of if there is an independent basis, the evidence comes in, or if the evidence could have been found innocently Tangible Evidence 4th A: tangible evidence unreasonable searches and seizures (unreasonable in terms of the states conduct). The state should not be penalized when the evidence they got comes in through a third person. (1) Independent Basis (2) Innocent eventual discovery (3) Attenuated Miranda violations (does the individual doing the interrogation have the power to arrest) (1) Impeachment ONLY (used to cast doubt on the s trustworthiness). Should not go to the proof of every element of the crime. Cannot be introduced in the peoples case in chief. (2) Have to have a voluntariness issue! If only a Miranda issue, the evidence will not be surpressed. 6th A right to counsel: if no counsel present, the statement is out unless the evidence is found from (1) IB (2) IED (3) Attenuation by taint Mapp v. Ohio: Evidence obtained by invalid entry on false pretence of having a warrant was evidence obtained by search and seizure in violation of the constitution, and was inadmissible in state court. Fruit of the Poisonous Tree The claim will determine whether the secondary evidence will be suppressed. (What is the alleged constitutional violation? Miranda, 6th counsel, 14th due process, or illegal search, illegal seizure?)

Silverthorne Lumber Co v. United States: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Wong Sun v. United States: Statement procured from who was handcuffed after illegal entry and then questioned it was unreasonable to infer that Toys response was sufficiently an act of free will to purge the primary taint of the unlawful invasion. There was no attenuation, no inevitable discovery and no independent source. The Tree Matters Where there is a violation of Miranda, the statement may be suppressed if the never takes the stand. If they do take the stand and lie as to what was in the statement, they may use it for impeachment purposes because it goes to credibility. Was the a credible historian about what happened THE STATEMENT MAY GO DOWN IF YOU HAVE IMPEACHMENT. THE CONTENTS (secondary evidence) MAY BE A VIOLATION OF THE 14TH A DUE PROCESS (product of overbearing the will of the ) Was the statement from free choice. Voluntary, and unconstrained. Look at TOC. Miranda is required when is (1) in custody and (2) interrogation or its functional equivalent Then, ask if what the police did was so coercive that obtained the statement, the statement will be out. Michigan v. Tucker: Failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context. stated didnt want atty. No advisement on free counsel. Limits to the Exclusion of Fruit The Independent Source Exception The moment you see tainted evidence, everything after that is suspect because it could be fruit of the poisonous tree. If you can find an independent basis for the witness testimony, this is an exception to the exclusionary rule. Segura v. US: Police conducted illegal search of the apartment, but there was a lawful independent basis for the warrant. Evidence observed in plain view at the time of the illegal entry could also be seized under a valid, after acquired search warrant. Murray v. US. The Inevitable Discovery Exception Nix v. Williams: Statements made by while in police custody w/o counsel present were out b/c right to counsel were violated, but the evidence obtained from the statements (the body of the victim) was allowed in b/c of inevitable discovery. There must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct. Attenuation of the Taint Look at the time lapse, questioning used, and why subpoenaed. US v. Ceccolini: PO unlawfully saw evidence of crime. Witness testified weeks later. Court considered degree of free will exercised by the witness, and the time lapse between the violation and the questioning. Court looks at: (1) Whether s statements were voluntary (2) Whether was given Miranda warnings prior to the confession and (3) The temporal proximity of the arrest and the confession. THE RIGHT TO COUNSEL Recognition of the Right Betts v. Brady: No State obligation. Criminal prosecutions only and ONLY if there is a prospective jail sentence. Gideon v. Wainwright: Any person who is haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Ask: what right is implicated, and what is the opportunity for the state to make an error. You have right during appeal.

Ineffective assistance of counsel (1) That the lawyer did not know the law (2) Failure to interpose a specific defense was not a consequence of a strategy but that they didnt know the law (3) But for their ineffective assistance, the would not have been found guilty