Basic Skeleton of Analysis {to be used with OL-pg s and Check-sheets} First---Outline the problem

y Look for Odd things Like a warrant being for someone else s home o Or the house being owned by someone else. o A standing issue. o AND becareful about WHAT the Cops say. st ALSO He wants me to leave Probable Cause to the 1 place really NEEDED. He HATES MY style or organizing so USE HIS.

4 amendment Issues--(should be addressed in Chronological order NOT just straight down the Check s) 1- Is there 4 amendment conduct? [Check-sheet Gov. action Requirment Search- What is a Search?
th

th

y y

#1]

Step 1- to go into a structure the general rule is that you must have a warrant and P.Cause/(Reasonableness) Katz-test-factors- Reasonable expectation of Privacy 1. Location privacy of your own home, a extended visitor, hotel guests. Etc. y Open fields/Curtilege and the difference. 2. Assumption of the risk
a. b. c. d. e. f. Agents & informants-No 4 . Registers & pagers-No 4th th Electronic tracking-No 4 . th Aerial surveillance-shared public air-space NO 4 . th Thermal imaging-if the enhancement is not in general public use-TRIGGERS the 4 . th Container searches triggers the 4 .
th

(warrants DO NOT apply to stops) Other FACTORS to consider in a Search

1. 2. 3. 4. 5. Property interests-must be your property/or close nexus to believe you have a right to privacy. Social custom overnight guests have a belief of privacy/ Expectations-none as a casual visitor th Intimacy of activities-a dog sniff is NOT a search-no 4 . th Vantage points if from some NORMAL means of ingree/egress than no 4 . Reduced expectations of privacy public places/phone booths.

6.

A.

Level s of Interaction-Stop & FrisksTerry v. Ohioi.

ii. i. ScopeA search incident to arrest? i. armed or dangerous. ii. Need to protect evidence from being destroyed. BUT now with the doggie sniff. Full-blown search allowed-without a warrant. BUT a. ONLY if the original arrest was-made from a Reasonable Suspicion (high Blair standard) then Search Incident to arrest.

iii.

B.

Voluntary encounters vs. Seizures y Stop vs. arrest--

Seizure-What is a Seizure? 1. Who has standinga. Rakas Test The

must have a reasonable expectation to privacy IN THIS LOCATION/Property!

b. c.

i. Authority owner/rent/guests ii. Legality iii. Standing Business context Req gov. action! Someone in this FACT s has to be A COP, etc.

Best Test to see if a Private Actor can be considered an agent of the Gov. 1. Whether to gov. knew or an acquiesced in the intrusive conduct, AND 2. Whether the private actors purpose was to assist law enforcement efforts rather than to further his own ends. b. Reasonableness of the Search i. Balancing test- between Gov. Interests & Public/privacy interests. Probable Cause [check-list 2] 2 Step tests for informant statements a. Credibility b. Reliability i. Are anonymous tips allowed--Gates TEST from the Totality of the Circumstances is there gence all of the circumstances a fair probability that contraband/evidence of a crime will be found in a particular place? Stop vs. Arrest-

i.

No warrant needed if a Temp. detention on a Reasonable suspicion based upon Reasonable suspicion of criminal activity. th y DOG Sniff- Not 4 amendment conduct o Court has held that dog sniffs are NOT searches and do not unconstitutionally expand the scope the stop. o No expectation of privacy dogs don t need probable cause. o A dog alert would be enough to give Probable cause to now search if up to that pt. everything else is legal action. o But it occurred during a period of unlawful detention can be the fruit of tainted tree. (needs to be from a legal stop/or the arrest, etc. evidence is still fruit of the poisons tree-) TYPE of Seizue under

[Check-list 4--] Arrest

the 4 !
th

a. Based on reasonableness probable cause mere conclusions are NOT enough. Encounter-brief/limited in Scope only need reasonable suspicion Stop-not free to leave, Arrest-requires Prob. Cause can enter into a HOME without a warrant to get the your going to arrest, can follow into their home. th Testing of evidence is also 4 Amendment Activates y Does the person have reasonable expectation of privacy with their personal belongings? y Warrant got for this. Yes/NO any exceptions? Exigent circumstances, etc. o Any probable cause for this? o Also must remember that the Evidence can still be tainted from the initial illegal stop. o AND due to the intrusion into the ZONE of privacy might be inadmissible. rd Affidavit-based upon reasonable supporting evidence of----- and rule on by an unbiased 3 party. y Can mention the requirements Warrant [Check-list #3] Requirements for a Warrant 1) The information be under oath/or affirmation- usually an affidavit 2) That the information is described in/with Particularity 3) Issued by a Neutral detached magistrate
Steps in Analysis of this 1. Set out IF a Warrant is Required 2. THEN lay out the exceptions 6 Warrantless Searches & SeizuresWARRANT Exceptionsa. 1. 2. 3. 4. 5.

[Check-list #6]

Search Incident to arrest- Chimel OL pg. 36 Exigent circumstances Plain view, Touch, & smell Vehicle & container searches Special Needs exceptions i. Health and safety ii. Roadblocks iii. Inventory searches iv. Consent a. Requirement of voluntariness b. Actual authority c. Apparent authority d. Withdrawing consent. Exigent Circumstances is a REQUIREMENT of Probable Cause a. Search of a HOME or structure i. Normal ingress/egress pathways ii. Curtiledge y Must have standing to complain about a search-warrant o Be someone who is justified in believing that this is a zone with the expectation of privacy.

Entry into a Location Like a home--/apt. etc. ONCE in the location legally to be Searched What is the Limits of the search space allowable y Plain-view 3 elements of Plain-view 1. Lawful vantage point/curtiliage normal means of ingress/egress. 2. Probable cause-that a siezable object is there. 3. LAWFUL access to the item. Now Plainview cannot get you into a HOME need to get a warrant. y Inevitable discover y Zone of reasonable search. y Exigent Circumstances (?) Now if it was an illegal search then it TAINTS the evidence/taints the testing y Must have intervening acts to correct the TAINT. Now Evidence that comes in from inevitable discovery can be used.

Next STOP & Frisk [Check-list #5] -brief interactions only need Reasonable Suspicion & limited in scope. -Frisk-is a brief pat-down of outer clothing surfaces. [HICKS very limited in Scope] And the Frisk needs to be justified by a articulatable reasonable suspicion that the was armed or dangerous. y Now how people are to be treated during a search of the property in Large part has to do with the warrant does it allow the search of individuals? y NOW if the COPS reasonably believe that the is holding the objects being searched for then YES [TERRY STOP]--Terry v. Ohio NEW RULE that a Stop & Frisk can be done with a lesser amount of suspicion! y ANALYSIS the Stop & frisk separate. y No Miranda needed. Search Incident to arrest if you have probable cause to think something illegal is there, and you have probable cause to make an arrest if this leads you to believe that the person has something illegal upon them can search under this WARRANT Exception.

Exclusionary RULE-Check-List #9 Exclusion Balance testLimitations on Excluding Fruit of the Poisonous Tree-BUT FOR The illegal activity the evidence a. Inevitable discovery doctrinei. Nix v. Williams- child/burial statement made by cop in the patrol car. ii. One Requirement must be absent Bad faith if they act in Bad Faith this is still kept out. b. Independent Source doctrinec. Attenuation of the TAINTBrown Factors to consider i. The temporal proximity of the arrest and the confession[has the taint worn off] ii. The presence of innerving circumstance [is it strong enough/has something come in a cleaned this up] iii. Purpose and flagrancy of the official misconduct. Exceptions to the Exclusionary Rule a. Good faith exception-applies to Warrants! i. Leon-defective search warrant which caused there to be NO probable cause would not be allowed to shield this evidence from being excluded the cops acted in Bad Faith because they KNEW the information given in the affidavit for the warrant was BAD. b. Independent Sources Doctrinec. Inevitable Discoveryth d. The Impeachment Exception - Ol. Pg. 62 evidence excluded under the 4 amendment can be used for impeachment BUT it must be related to the testimony on Direct, or CX testimony when those questions are reasonably suggested by the direct examination. th e. Habeas Review of violations of the 4 Alternative Solutions to the Exclusion of Evidence (from book) th y 4 violations th y 5 violations th y 6 violations

TAINT BLAIR Loves Taint! y y

th th

Unlawful entry into the location/space where the evidence was gained. Cleaning of the taint would take passage of time- &

5 Amendment Miranda, 6 Amendment right to CX, & Voluntary Requirement of Due Process Analysis these---BY ISSUE---- Per Blair**Example if there are two different DAYS, or two separate times---GO through all 3 issues FOR EACH set of Facts!!!! TIP a coconspirator does NOT have automatic standing to excluded evidence-[Check-list- 11] th th Issue #1-5 Amendment Miranda is the privilege against self-incrimination & has a right to cx (different than the 6 Right/Messiah.) a. Threshold issues Custody & interrogation Are Required. [NOT offense specific/but Custody Specific] th ii. TEST for Interrogation- Under the 5 something short of deliberate!  A words or actions that the police should know are likely to illicit an incriminating response  If you arrest but DON T take into custoday NO Miranda Needed.  If you stop for a DUI-and just do a field sobriety NO Miranda Needed.  NO Miranda needed for routine booking questions.  NOW mental calculations are considered Testimonial and required Miranda.

Warning adequacy- Notify of Rights, including MirandaKey- a NEW interrogation requires a NEW-Miranda Warning. v. Invoked right to cx. Or a Valid Waiver RULE if the invokes the interrogation must stop until the initiates the questioning. iv. Mosley-factors waited 2 hours, different detective, NEW Miranda given questioned him about a different offence. Exceptions to Miranda No Miranda needed for a Terry Stop-(brief frisk of the car). Undercover Activities The must know that they are speaking to a COP/Gov. Agent. Q-is whether what has occurred is so-far interrogation? Violations if an interrogation occurs AFTER an Invocation of the Miranda Rights violates Edwards v. Arizona ALL of the statements are excluded from the Prosecution s Case & Chief y Still able to use for impeachment. ALSO---Miranda has to be invoked in respect to an INTEROGATION if there is no current interrogation process going on/or getting set to start this invocation is NOT valid and Edwards v. Arizona will NOT kick-in. [Check-List #12] th Issue #2-6 Amendment Rt. To Counsel [Offence SPECIFIC] When does this attach? 1. After the initiation of adversarial proceedings2. Whether it is a indictment, formal charge, or preliminary hearing. TIP---NO Requirement for Custody! NONE they can be free physically-and have this right if indicted, etc. Must get a WAIER (weird since the the waiver-does not have to be told that the person/is a state actor) but they will know when you get y
th

TEST for Interrogation under the 6 --Must be a deliberate eliciting of incriminating evidence from a in the absence of cx. Custody is NOT a Controlling factor. solicitation of the confession y ie you could/should have reasonably known but did not deliberately solicit then does NOT violate this. y Attaches to Specific Offences! y For A WAIVER to be good---the waiver must be made intelligently, and knowingly, Now if this is violated and two statements were given the ONLY ones excluded are the ones that were purposely solicited-the additional information/comments are usable. y Also a KEY if this is violated only the offense specific statement elicited will be excluded not the extraneous ones. SIDE-NOTE even if the does not know that they are speaking to a State Actor must have the right to cx. Issue #3-Voluntariness of Due Processa. Fairness b. Dignity & decency c. Use of force and fear of physical injury d. Deprivation of bodily needs e. Deceptive tactics- pressure, deception, promises of leniency. Must be Voluntary TOTALITY of the Circumstances TEST Arizona v. Fulminante-where the police employ a false friend in a jail plant is found coercive. And where the court has found threatened physical harm-they find coercions. y Is there coercive activity that leads to the behaving differently? o Now does the cop know he/she is having this effect? o Are their two cops? Does one know about the others actions would this even clean it up? NO. y Reasonable conclusion that if because of threats/abuse of any-kind this leads to the suppression of BOTH/& all parts of whatever statement or confession is made. o Both for the Case & Chief and in impeachment. NOW OVERVIEW---Of WHAT is Kept OUT y If JUST Miranda violated evidence found is still in because Miranda does not cause fruit of poisonous tree. th y If the 6 is violated Could led to exclusion y If Voluntariness of the Due Process is violated might led to suppression. KEEP in Mind the Attenuation of the TAINT---But for the illegal activity they would NOT have this evidence. [CH10- Eye-witness Identification]

a.

Rt. To CX-depends upon if the 6 amendment has attached yet Adversarial proceedingsi. Line-ups depends upon when they are done- pre-charges-NO, post-YES. [ol pg. 92] y Statements made during a line-up are NOT testimonial and do not get the right to counsel. y They are demonstrative. ii. Photo spreads-Unnecessary suggestiveness i. Likelihood of misidentificationii. Dog Sent Id s are upheld.

th

b.

SPECIAL THINGS TO KEEP IN MINDRacism-Profiling, pretext not allowed to be used. Special Rules for a. Computer searches b. Cell phones c. Not allowed to use enhancing Right to CXy y A has the right to defend themselves and if they knowling and intelligently waive the right to CX it must be granted. IF it is not it is a constitutional violation.