THE EXCLUSIONARY RULE

Prohibits the introduction of evidence obtained in violation of a D’s constitutional rights

in a criminal trial.

Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal
government conduct is excludable against D.
 Arises when illegal police action leads to evidence
 Exceptions – evidence illegally obtained is admissible if the government can “break
the chain” between the original illegal conduct and the illegally seized evidence.
There are three ways to do this:
1. Independent source – govt. has an independent source for obtaining the
evidence (i.e. independent of the original illegality)
2. Inevitable discovery – govt. would have discovered the illegally derived
evidence even without the illegal conduct.
3. Intervening acts of free will by D – after the initial illegality, D led police to
the evidence by his own free will.

Remedy for exclusionary rule violation – harmless error review

 For admission of illegally seized evidence to be upheld on appeal, the government
must show that it was harmless BRD.
LIMITATIONS ON THE EXCLUSIONARY RULE

The ER applies ONLY to searches in violation of a federal statute or the U.S. Constitution.

Exclusionary rule does not apply:

 In grand jury proceedings, civil proceedings, parole hearings, or administrative
cases.
 For violations of the “knock and announce rule” in executing search warrants.
 To evidence seized as a result of Miranda violations.

Excluded evidence and impeachment:

 Confessions resulting from Miranda violations or illegally obtained evidence may
be used to impeach D’s testimony a trial (only D’s testimony, not all testimony).

Govt. good-faith defenses to the exclusionary rule

 Illegally obtained evidence will not be excluded if the govt. demonstrates that it
relied in good faith on either:
1. A reasonably relied upon but defective search warrant
2. A judicial opinion or statute that was later changed or declared invalid
THE FOURTH AMENDMENT

“The right of people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue,
but upon PC, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”

The Fourth Amendment applies to both searches and seizures of property, and to arrests
of persons.

ARRESTS

An arrest occurs when police take an individual into custody for purposes of criminal
prosecution or interrogation.

Probable cause is always required for any valid arrest

 Probable cause: trustworthy facts or knowledge sufficient for a reasonable person
to believe that the suspect has committed or is planning to commit a crime.

Warrants are rarely required for arrests

 Unless an arrest occurs in the arrestee’s own home, the govt. does not need a
warrant to make an arrest.
 A warrant is not required for an emergency arrest occurring in the arrestee’s
home.

DETENTIONS

A governmental seizure of a person that is lesser than an arrest.

Common govt. detentions:

 Stop and frisk
o Requires R&A suspicion.
 Automobile stops
o Requires R&A suspicion.
 Stationhouse detention
o PC is required to compel a person to enter a govt. location for fingerprinting,
questioning, etc.
 Detention to obtain a search warrant
o Requires PC
o If police have PC to believe a suspect has contraband hidden in her home,
they may prevent her from entering her home for a reasonable time while
they obtain a search warrant.
 Purpose MUST be to prevent her from destroying the contraband
evidence.
 Detention of occupants of a premises
o If police have a valid warrant to search a given premises, they may detain its
occupants for the duration of the proper search.
DETERMINING THE VALIDITY OF AN EVIDENTIARY SEARCH OR SEIZURE

Searches for, and seizures of, evidence by the govt. must be reasonable under the 4 th
Am.
 This requires a valid search warrant unless one of six exceptions applies.

Determining the reasonableness of a search or seizure:

1. Is there govt. conduct constituting a search or seizure?
O The 4th Am. Only applies to govt.’s direct or authorized conduct; it offers no
protection against conduct by private individuals.
2. Does D have standing?
o D must have a REOP in the thing or place to be searched.
3. Is there a valid search warrant?
4. If there is no valid search warrant, was there a valid exception to the search
warrant requirement?

Exceptions to the search warrant requirement:

1. Search incident to arrest
2. Plain view search
3. Automobile search
4. Valid consent to search
5. Exigent circumstances
6. Stop & frisk
REASONABLE EXPECTATION OF PRIVACY

The 4th Am. only applies if a person has a REOP regarding the thing or place searched
and/or the items seized
 Standing to challenge a govt. search requires a REOP
 REOP is determined by the TOC

No REOP for inherently public things

 (EXP) handwriting, voice, location, odors, bank records, things viewable from public
place, garbage placed outside

Automatic standing – REOP always exists if D either:

1. Owns, has a right to possess, or lives in the premises to be searched, or
2. Is an overnight guest of the premises to be searched
REQUIREMENTS FOR A VALID SEARCH WARRANT

Unless an exception applies, the govt. must have a properly executed warrant to
conduct a search

Requirements for a valid warrant:

1) Based on PC
o Usually a police affidavit demonstrating PC that the search or seizure will
produce evidence
o Affidavits:
 Must contain facts showing PC
 May include information from anonymous sources (i.e. informants)
 If an affidavit is based on materially false information, the warrant is
invalid
2) Precise on its face
o The warrant must describe, with reasonable precision, the place to be searched
and/or items to be seized.
3) Issued by a neutral and detached magistrate
o If this requirement is violated, evidence seized pursuant to the invalid warrant
cannot be admitted under the good faith reliance exception.

Places searchable pursuant to a warrant – almost anywhere

o Warrants can be issued for any location where the govt. has PC to believe there
is evidence to be seized.
EXECUTION OF SEARCH WARRANTS

Timing – police must execute a search warrant without unreasonable delay after it is
issued

Knock and announce – police must knock and announce their purpose, then wait a
reasonable time for admittance before entering on their own accord
 Exception – knock and announce is not required if officers have reasonable
suspicion that announcing their presence would be dangerous, futile, or would
inhibit the investigation

Scope of search – police can seize any evidence of criminal activity they discover, even
if not included in the warrant
 Basis is the plain view exception to search warrants
 Police can detain people found on the searched premises
o But police CANNOT search detained persons unless they are specifically
named in the warrant or a valid warrantless search exception exists
VALID WARRANTLESS SEARCHES

A warrantless search is unconstitutional unless it fails under a valid exception to the

search warrant requirement

Exceptions to the search warrant requirement:

1) Search incident to lawful arrest
2) Plain view
3) Consent
4) Automobile exception
5) Stop & frisk/Terry stop
6) Exigent circumstances
o Hot pursuit
o Emergency
o Evanescent evidence
SEARCH INCIDENT TO LAWFUL ARREST

Police may, without a warrant, search a lawfully arrested person and his immediate
surrounding area

Requirements:
1) Arrest must be lawful
2) Search must be contemporaneous with the arrest
3) Search must be limited to the area within the suspect’s immediate reach or
immediate movement (i.e. where he may be able to obtain weapons or destroy
evidence)

Protective sweeps — police may make protective sweeps of an area for their own
safety or if they have reasonable belief that accomplices may be present

Inventory search — police may make an inventory search of an arrestee’s belongings,

i.e. they can take items to the police station to be searched

Automobiles — if an arrestee is in an automobile, police may search the passenger

compartment, including the glove box
• Police cannot search the trunk without probable cause or consent
• Police cannot search the passenger compartment if arrestee is secured, away from
the vehicle
PLAIN VIEW SEARCHES

Police may search from any place where they are legitimately present when viewing (i.e.
when conducting the search)

Seizure based on plain view — police may make a warrantless seizure based on
evidence in plain view if:
1) They are legitimately on the premises from which they viewed the evidence to be
seized
2) Evidence of criminal activity or contraband is immediately apparent
3) They have probable cause to believe that plainly viewed evidence is contraband or
relates to a crime

Scope & limitations of plain view searches

• Plain view includes anything viewable from land or public property
o Items viewable only through binoculars are still within plain view
• Police cannot use technological devices to view evidence that may give rise to a
plain view search (e.g., infrared scanners capable of viewing through walls)
• Plain smell — included within plain view
o If police smell something giving rise to probable cause from a place where
they are legitimately present, they can search that item
CONSENT TO SEARCH

Requirements for valid consent:

1) Voluntarily and intelligently made
o Police cannot lie or deceive to obtain consent
o Police have no obligation to inform suspects that they have a right to refuse
consent
2) Person giving consent has authority to consent
o Must be reasonably apparent that the consenting party has the authority to
consent

Scope of consent — can be limited by the consenting party

• Violation of the allowed scope renders the entire search non-consenting

Third-party consent — allowed if there is authority to consent

• Where multiple people have rights to property (via ownership, authorized use or
occupancy), any single one can consent to the search of any area where they have
authority to consent
• A resident’s right to consent trumps a non-resident
o E.g., if both a tenant and landlord are present, the tenant’s refusal trumps
the landlord’s consent
• Scope of consent is dictated by the person present with highest authority to
consent
• Refusal trumps consent — no consent if two persons with equal right to possession
disagree on consent
AUTOMOBILE SEARCH EXCEPTION

If probable cause exists, police may search an entire vehicle (including the trunk) and
anything inside it that may contain evidence of suspected criminality

Requirements
• Police must have probable cause to search the vehicle
• Probable cause must arise before the search begins
o I.e. probable cause must arise based on something between the vehicle stop
and the search

Scope of permissible search

• Police may search passengers and their belongings
• Packages & containers in the vehicle — police may open any package, container,
or item of luggage that they reasonably believe may contain evidence relating to
the reason they searched the vehicle
o Police may also tow the vehicle and search such containers at a later time
AUTOMOBILE STOPS & POLICE CHECKPOINTS

Automobile stop — reasonable suspicion required

• To stop or pull over a vehicle, police must have reasonable suspicion that a law has
been violated
• Pretextual stops — actual motive is irrelevant; as long as police have reasonable
suspicion of some legal violation, they can have any other actual motive for
stopping a car
• All passengers have standing to challenge the stop

Accompanying searches — police may search:

• The passenger compartment and passengers for weapons
o Does not include the trunk
• Any open containers that could reasonably contain evidence supporting the
reasonable suspicion for the stop (does not include closed, locked containers)
• The entire car may be searched if probable cause arises, in accordance with the
automobile search exception

Police checkpoints — must relate to a vehicle-specific purpose

• E.g., DUI checkpoints are okay because they relate to road safety, but drug
checkpoints are insufficiently related to driving, and are thus unconstitutional
• Vehicles must be stopped using some neutral and articulable standard
STOP & FRISK

Police may detain a person for an investigative purpose if they have reasonable
suspicion of criminal activity

Allowable scope of stop & frisk:

• Length — detention must be no longer than necessary to verify the suspicion
• Frisk — if police have reasonable suspicion that the person is armed or dangerous,
they may conduct a protective frisk for weapons
o Plain feel — if police have reasonable belief during the frisk that what they
feel is a weapon or contraband, they may seize the suspected item
 Officers cannot manipulate the item to develop reasonable belief — it
must be plain touch only
 Evidence validly seized is admissible

Stop vs. arrest

• A stop is a brief detention, not an arrest
• But police may develop probable cause to arrest based on anything occurring or
discovered during the stop and/or frisk

Note — Stop & Frisk is often called a “Terry-type” stop

EXIGENT CIRCUMSTANCES

Police can seize or search evidence in exigent circumstances:

1. Hot pursuit
o While in active pursuit of a fleeing felon, police can search for anything
relating to the pursuit or for their own protection
2. Evanescent evidence
o Police can search or seize evidence that would be at risk of disappearing if
police were required to secure a warrant
 E.g., drugs which may be discarded, DNA evidence which may not last
3. Emergency
o Police can search or seize evidence if justified by emergency circumstances
(e.g., a bomb threat or act of terrorism)
OTHER FOURTH AMENDMENT SEARCHES:

Administrative searches
• Govt. agencies may conduct routine searches or inspections
o E.g., building code inspections, food safety inspections, searches of
businesses in highly regulated industries, airline passenger searches, parolee
searches, etc.
• A warrant is required for inspections of private residences or commercial buildings
o Requires less particularity than standard warrants
o A general and neutral enforcement plan for the searches will suffice to
validate the warrant

Public school searches

• Warrantless searches are permitted for drug tests of public school students who
participate in extracurricular activities

Border searches
• At the border, officials may conduct routine searches of persons and their effects
(including vehicles) without a warrant, probable cause, or reasonable suspicion
o Border = any place where one can arrive in the U.S. from a foreign country
(e.g., there is a “border” at Denver International Airport)

Detentions — reasonable suspicion required

• Officials may detain a traveler at the border if they have reasonable suspicion she
is smuggling contraband

International mail
• Officials can open and inspect international mail if they have reasonable suspicion
it contains contraband

Immigration
• Officials may raid a business to determine citizenship status of its employees
ELECTRONIC SURVEILLANCE: WIRETAPPING AND EAVESDROPPING

Electronic surveillance (i.e. wiretapping or eavesdropping) is a “search” under the 4 th

Am. and requires a warrant

Warrant requirements for electronic surveillance:

1) Probable cause
2) Warrant names the suspects subject to surveillance
3) Warrant describes with particularity the subject of conversations that can be
listened to
4) Surveillance is limited to short periods of time
5) Wiretap terminates when the desired information is obtained

Note — all speakers assume the risk that the person to whom they are speaking is wired
and/or recording the conversation
• Therefore, police do not need a warrant if they get someone to wear a wire and
talk to the suspect
• They do need a warrant to tap the suspect’s phone
FOURTH AMENDMENT CHECKLIST

In criminal prosecutions, Fourth Amendment issues arise in an evidentiary context.

That is, the question that normally must be considered is this:
Should a particular tangible object or oral communication, secured by government
agents, and which the prosecutor intends to introduce at trial against the defendant (D)
in the government’s case-in-chief, be excluded because it was obtained in violation of
the Fourth Amendment?
Answering this question is almost never simple. Nor is there any foolproof way to
go about determining the answer. Nonetheless, the following checklist of questions may
help clarify matters. It may be useful to return to it multiple times as you proceed
through the Fourth Amendment thicket.
In answering the evidentiary question stated above, one should focus on the police
activity that resulted in discovery of the particular item evidence at issue, and consider
as many of the following questions as are relevant. If there are multiple items of
evidence to consider, it is preferable to consider them in chronological order, i.e., in the
order in which the evidence was secured by the police.

1. Does D have standing to raise a Fourth Amendment challenge to the specific

item of evidence in question? If the answer is “no,” the evidence is admissible, insofar as
the Fourth Amendment is concerned. If the answer is “yes,” the analysis continues. In a
multi-defendant criminal prosecution, this question must be asked separately as to each
defendant. One person may have standing to raise the claim, while another does not.
2. Is D among “the people” protected by the Fourth Amendment? If the answer is
“yes,” proceed to the next question.
3. Did the police activity in question implicate a “person, house, paper, or effect”?
If the answer to this question is “no,” which is rare, the Fourth Amendment does not
apply.
4. Did the police activity constitute a “search” and/or “seizure”? These words have
specialized meanings in Fourth Amendment jurisprudence. If the police activity in
question does not constitute either a search or seizure, the Fourth Amendment does not
apply. If the activity constitutes either a search or seizure, the analysis continues.
5. Was the search and/or seizure reasonable or unreasonable? This is the ultimate
substantive issue: it indicates whether the Fourth Amendment was violated.
Nonetheless, one cannot answer this question without considering various sub-issues,
including the following:
A. Did the police have adequate grounds to conduct the search and/or seizure? For
searches and seizures, the police traditionally must have “probable cause,” a
constitutional term of art. Many searches and seizures, however, are permitted on a
lesser ground, called “reasonable suspicion.” And, the Supreme Court has approved
suspicion-free searches and/or seizures in a few cases. In light of the different applicable
standards, one must look at the particular search and/or seizure in question, and
determine whether it is the type for which probable cause is required (many cases),
whether it is the type for which reasonable suspicion is sufficient (many cases), or
whether this is one of the few cases in which the police may act at random. Then,
assuming some level of cause is required, a lawyer must determine whether the police
possessed the requisite “probable cause” or “reasonable suspicion,” as the case may be.
If the police did not have sufficient grounds, the search or seizure was unreasonable, in
violation of the Fourth Amendment.
B. Even if the police acted on the basis of probable cause, did the police obtain a
search warrant or arrest warrant, as the case may be? If the answer to question is “yes,”
a number of sub-issues arise: (I) Did the police obtain the warrant in a proper manner?;
(ii) Was the party issuing the warrant a “neutral and detached magistrate”?; (iii) Was the
warrant in proper form, e.g., does it satisfy the constitutional particularity requirement?;
and (iv) Did the police execute the warrant properly?
If the police did not secure a warrant, the sub-question is: Did the police have a
valid reason for not obtaining the warrant? As will be explained in the Text, arrest
warrants are constitutionally required only in very limited circumstances. Search
warrants are required more often, but many “exceptions” to a so-called “search warrant
requirement” exist. If no valid exception existed, however, a warrantless search or
seizure would be considered unreasonable and, therefore, in violation of the Fourth
Amendment.
6. Assuming that the preceding questions justify the conclusion that the police
conducted an unreasonable search or seizure in violation of D’s rights, the Fourth
Amendment exclusionary rule comes into potential play as to the particular item of
evidence in question. However, there are still questions to be asked and answered:
A. Does the exclusionary rule apply in the particular situation? In light of relatively
recent case law, the scope of the exclusionary rule has been limited. There are certain
categories of unconstitutional searches or seizures to which the exclusionary does not
apply; as well, the degree of culpability of the police officers who violated the Fourth
Amendment must also be considered.
B. Assuming the exclusionary rule applies, then the evidence obtained in direct
violation of the Fourth Amendment is inadmissible. Then ask: Does the government seek
to introduce any other evidence that is a fruit of the poisonous tree — that is, evidence
causally linked to the initial illegality? If the answer is “yes,” these “fruits” are also
inadmissible, subject to two limiting doctrines, explained elsewhere: (i) the inevitable-
discovery doctrine; and (ii) the attenuated-connection doctrine.
F I F T H A M E N D M E N T P R I V I L E G E A G A I N S T C O M P E L L E D S E L F -I N C R I M I N A T I O N

Under the 5th Am. any person in any proceeding (civil or criminal) may refuse to answer a
question if her response might incriminate herself

Privilege is only available for compelled testimonial or communicative

evidence
• Testimonial = verbal or otherwise communicative evidence
o Lineups and physical evidence — not testimonial
• Compelled = elicited or induced
o Evidence produced from D’s free will is not compelled (e.g., D’s diary is not
compelled)
o Lie detector tests, custodial interrogation, etc. are compelled — 5 th Am.
privilege applies

Privilege does not apply if:

1) Grant of immunity — govt. can grant immunity from prosecution for self-
incriminating testimony
2) Incrimination is not possible — e.g., the statute of limitations has run
3) Extinguished by waiver — D waives the privilege

Note — at trial, the prosecution cannot comment on D’s silence or failure to testify
MIRANDA RIGHTS

A person in custody must be adequately informed of his Miranda rights prior to

interrogation in order for his subsequent statements to be admissible

Custodial interrogation required — Miranda only applies when the accused is in

custody and interrogated
• Custody — the accused is not free to leave
• Interrogation — any statements by police likely to elicit an incriminating
response (i.e. any conduct police know or should know will get a damaging
response from the accused)
o Unsolicited statements are not protected
o Note — routine questioning, e.g., during booking or a probation interview, is
not considered interrogation
o Public safety exception — police may interrogate suspects without giving
Miranda warnings if necessary due to concerns for public safety (e.g., D has
info about a bomb that could go off in public)

Miranda warnings — police must inform the accused that he has:

1) A right to remain silent
2) Anything said can be used against him
3) He has a right to the presence of an attorney and
4) One will be appointed if he cannot afford one
• Substantial compliance in reading warnings is sufficient
• Failure to give warnings only implicates the 5th Am., not the 6th Am.
INVOKING & WAIVING MIRANDA RIGHTS

An accused may terminate an interrogation at any time by invoking his right to remain
silent or requesting counsel

Invoking the right to remain silent — after the accused invokes the right, police
must cease all questions
• Only the accused can re-initiate dialogue
• Police may later question the accused regarding unrelated crimes

Invoking 5th Am. right to counsel — all questions must cease, on any topic, until
counsel is provided and present
• Note — this is different than the 6th Am. right to counsel, which is offense-specific
and does not attach until charges have been filed
• If accused initiates the communication, interrogation is allowed

Waiving Miranda rights — waiver must be:

1) Knowing
2) Voluntary — must be a clear verbal waiver
3) Intelligently made
• Burden is on P to prove waiver was valid
SIXTH AMENDMENT RIGHT TO COUNSEL

Once the 6th Am. right to counsel attaches, police may not deliberately elicit
incriminating statements outside the presence of D’s counsel
• Application — the right attaches once charges have been filed
o Applies to all subsequent stages of the judicial proceeding
• Scope — the right is offense-specific
o Police can question D about any other crime without violating D’s 6 th Am.
rights

5th vs. 6th Am. Right to Counsel

• 5th Am. right to counsel
o Not automatic — the accused must invoke the right by requesting the
presence of counsel
 Request must be unambiguous
 Applies to any custodial interrogation
o Not offense-specific — once invoked, police must stop questioning on all
subjects
 Police can re-initiate questioning after a break and D must re-invoke the
right by again requesting an attorney
• 6th Am. right to counsel
o Automatic — attaches once charges have been filed
o Offense-specific — Police can question D about any other crimes
PRETRIAL LINEUPS & SHOWUPS

A suspect has a right to counsel at any post-charge, in-person lineup or showup

• Does not apply to non-live identification procedures (e.g., photographic lineups or
fingerprinting)
• Lineup — witness is shown several possible suspects at once
• Showup — witness is asked to identify a single suspect

Remedy for violation

• D may move to suppress any subsequent in-trial identifications by the witness
• Note — remedy for a violation is rare because govt. can often prove the identifying
witness has an independent source of identification to overcome the exclusionary
rule
RIGHT TO CONFRONT WITNESSES

The 6th Am. gives Ds the right to confront adverse witnesses

Confrontation — D has a right to have adverse witnesses testify in-person and subject
to cross-examination; not an absolute right
• In-person testimony is not required if:
1. Exclusion is necessary for public policy, and
2. Reliability of the testimony is otherwise assured
• D can be removed from court for disruptive behavior

Co-defendant confessions — the confession of a non-testifying co-D against D at a

joint trial violates the 6th Am.
• Does not apply to bench trials
• Exceptions — the confession of a non-testifying co-D is admissible if:
o Ds have separate trials
o The confession is edited so that all portions referring to the co-D are
eliminated
o The confession is used to rebut D’s claim that his confession was obtained
coercively

Hearsay — prior testimonial statements of unavailable witnesses are only admissible if

D had the opportunity to cross-examine the declarant when the statement was made