MBE CRIMINAL PROCEDURE

I. INTRODUCTION TO CRIMINAL PROCEDURE

A. Systems of Criminal Procedure
1. The Fourth, Fifth, and Sixth Amendments
a. The Fourth Amendment protects the people from unreasonable searches and seizures and requires that
warrants be supported by probable cause
b. The Fifth Amendment prohibits coerced confessions, unreliable identifications and provides a privilege against
self incrimination
c. The Sith Amendment provides a person formerly accused of crime the right to assistance of counsel during
all critical stages of the adversarial process. That means trial, prelim hearings, police questioning and physical
identification proceedings. Sith Amendment also includes confrontation clause which requires testimonial
evidence be sub!ected to adversarial testing.
". Federal and State System
a. #ur focus is the $nited States %onstitution.
They provide a baseline of procedural protections that the state may not deprive. &owever, states are
always permitted to provide additional procedural protections to suspect and defendants.
A state statute that grants police authority to engage in conduct that violates the federal constitutional
standard is invalid 'li(e a statute authorizing no)(noc( warrant eecution for an entire category of
crimes*.
B. Approach to a Criminal Procedure Question
1. +as there government action,
". -f so, did it trigger a constitutional right 'for eample, was it a search or seizure, or was the suspect sub!ected to
custodial interrogation*,
.. -f so, did the government violate the constitutional right 'for eample, was the search or seizure unreasonable, or
did the police violate the /iranda rule*,
0. -f so, is 1#$2 defendant entitled to the remedy of eclusion,
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II. THE FOURTH AMENDMENT
A. Government Action
1. The Fourth Amendment applies only to government, not private conduct.
a. Silver Platter octrine! +hen a private party acting on his own acquires evidence that the government later
see(s to introduce in a criminal prosecution, it does not trigger the Fourth Amendment
b. &owever, when a private party acts at the direction of a government agent or pursuant to an official policy6
then the search and seizure is sub!ect to the Fourth Amendment.
B. Sei"ure
1. The Fourth Amendment7s 8reasonableness requirement9 is triggered by6 any government seizure of a person or
property.
". Sei"ure of Persons
a. A person is seized when, as the result of government action6 a reasonable person, in his position, will not feel
free to leave or otherwise terminate the police encounter
'1* :ot all police encounters are seizures. -f reasonable person feels free to leave or terminates encounter,
the Fourth Amendment is not triggered.
'"* A seizure occurs when the police use physical force to restrain a suspect, or when they ma(e a show of
authority followed by submission.
'a* -f a suspect is located in a naturally confined location 'li(e a bus*, the test is6 whether a reasonable
person will feel free to terminate the encounter with the police.
b. Arrest is a 8maimum9 seizure, indicated by police action that initiates the criminal prosecution process 'ta(ing
the suspect to !ail*.
All arrests are seizures, but not all seizures are arrests. The difference is indicated by purpose and duration.
c. Terry Stop! ;etween a routine police encounter and arrest is a Terry Stop.
'1* A Terry Stop is a 8brief investigatory seizure9 because police require the suspect to interact with them,
therefore triggering the Fourth Amendment.
'"* The difference between a Terry Stop and an Arrest is duration and purpose.
'.* A Terry Stop is not the initiation of criminal action, it is for the sole purpose of investigating a 8reasonable
suspicion9 crime is about to, or has recently occurred.
'0* The permissible duration of a Terry Stop is the time necessary to confirm or deny the suspicion.
'a* -f confirmed, the suspicion blossoms into probable cause, which !ustifies arrest.
'b* -f denied, the seizure must terminate.
.. Sei"ure of Property. For property to be seized, police must ta(e some action that results in meaningful
interference with a possessory interest
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a. -f police ta(e control of property, then it has been seized.
b. -f police place something on the property 'li(e a beeper* that does not interfere with the owner7s use of the
property, then it has not been seized due to no interference with possessory interest.
C. Search
1. A search is a government intrusion into a reasonable epectation of privacy '235*.
8<oo(ing9 for something is not always a search. A search is defined by where the police go or loo(. #nly
when police 8loo(9 into a 235 or go to an area within a 235 will it qualify as a search for purposes of the
Fourth Amendment.
". 2easonable 3pectation of 5rivacy '235*. A person may assert his Fourth Amendment rights only when6 the
government intrudes on a 235, which requires
a. The defendant manifests6 a sub!ective epectation of privacy by ma(ing an effort to shield the place, thing or
activity from the public.
b. The epectation is ob!ectionably reasonable because it is an epectation that society is willing to recognize.
#$A%P&#! A person in a closed telephone booth does have an actual 'sub!ective* and reasonable
'ob!ective* epectation of privacy in the content of his conversation. ;y closing the phone booth door, the
person manifests an effort to shield the sound of his voice from the public, and because he has not
eposed the content of his conversation to the public, this epectation is one society recognizes as
ob!ectively reasonable. Accordingly, attachment of electronic eavesdropping devices on the eterior of
the phone booth constitutes a search because it is a government intrusion on the 235 =>atz v. $nited
States, .?@ $.S. .0A '1@BA*C.
c. There is no reasonable epectation of privacy when the ob!ects to be seized are held out to the public.
#$A%P&#! -n the eample above, had the police used a lip reader to watch the person7s lips through the
glass windows of the phone booth and writing down what he said, this would not be a search because
when the person spo(e in a glass phone booth he (nowingly eposed the movement of his lips to the
public.
d. 5olice use of animals or commonly available equipment to enhance their natural senses of sight, hearing, or
smell does not transform their observations into a search so long as what they see, hear, or smell is detected
without intruding on a 235.
#$A%P&#! -f police use a dog trained to detect the scent of mari!uana to sniff a briefcase in bus station,
this is not a search because what the dog smells has escaped from inside the briefcase into the open air
and is therefore eposed to the public. &owever, if police use a device that allows them to 8see through9
the eterior of the briefcase, this is a search because the contents of the briefcase were not eposed to the
public.
e. A defendant does not have a reasonable epectation of privacy in the following items because they have all
been (nowingly eposed to the public6
'1* handwriting eemplars
'"* voice eemplars
'.* ban( records
'0* pen registers
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'D* information on an email sent through an -S5 'but the contents of the email are within a 235*E
'B* conversations that the suspect believes are private but that the party on the other end records. This is
the false friend doctrine
+hen a person eposes something to another person, they assume the ris( that the other person will epose
it to the police, and if this happens it is not a search.
'A* #pen fields6 unoccupied areas beyond curtilage of the home.
'?* :a(ed eye observation of private property by air so long as police comply with flight limitations
'@* Aerial photography of large fenced in areas around an industrial comple even using high)powered
scopes
'1F* Giscarded property, such as commingled garbage and abandoned rental premises.
.. +hen the government uses a device that is not in general public use, enabling them to see 8through the walls9 of a
home, this is a search because it intrudes upon a 235.
. Complyin' (ith the Fourth Amendment
1. The touchstone of the Fourth Amendment is reasonableness. Accordingly, a search or seizure6 must be reasonable in
order to comply with Fourth amendment
a. -f police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness. To
challenge the search or seizure, the defendant bears the burden of rebutting this presumption by proving6
'1* The warrant6 was not based on valid probable cause
'"* The magistrate6 not neutral or detached
'.* The warrant6 failed to describe with particularity the thing to be seized or place to be searched
3ven if a warrant is determined invalid, the evidence may still be admissible pursuant to the good faith eception
to the eclusionary rule. 3clusion requires the additional determination that police acted unreasonably when
they relied on the warrant.
b. ;ecause a search or seizure without a warrant is presumptively unreasonable, the government bears the
burden of proving the search or seizure fell within an established eception to the warrant requirement.
". The Procedural Component! )arrants
a. A valid warrant to search or seize must be issued by a neutral and detached magistrate, based on probable
cause, and describe with particularity the thing to be seized or the place to be searched.
'1* The information 'affidavit* presented to the magistrate must provide relevant facts that lead to the
conclusion that6 it is more probable than not that a person committed a crime or that evidence will be
found in a particular location.
'"* The information presented to the magistrate must not be stale.
b. -t is improper to issue a warrant, even when there is probable cause, if the method of intrusion is
unreasonable.
#xample! -t is improper to require the removal of a bullet from an individual suspected of robbery when
the bullet is deeply embedded in the body, removal would damage the body, and the removal would
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require general anesthesia.
c. +arrant 3ecution
'1* 5olice must normally6 (noc( and announce their identity before entering a home.
'"* >noc( and announce is not required if6 police have reasonable suspicion to believe that doing so would
lead to flight, endanger them, or lead to destruction of evidence.
'.* The violation of the 8(noc( and announce9 rule violates the Fourth Amendment but does not trigger
eclusionary rule. Hudson v. Michigan
.. The Substantive %omponent6 5robable %ause and 2easonable Suspicion.
a. 5robable %ause is 8fair probability9 defined as facts and circumstances that would warrant a reasonable person
to conclude that individual in question has committed a crime to support arrest or that specific items related to
criminal activity will be found at a particular location.
'1* 5robable cause is an ob!ective standard. As a result, the sub!ective intentions of the police officer pay no
role in assessing probable cause.
A defendant cannot challenge probable cause by asserting that the officer had a sub!ective improper motive
for an arrest. The search incident to the arrest is valid so long as the ob!ective facts indicate that a crime
was committed, arrest is supported by probable cause. -t is irrelevant that the officer conducted the
arrest simply to use it as an opportunity to search for evidence he had a hunch he might find or to harass
the suspect. =Whren v. U.S., D1A $.S. ?FB, ?1. '1@@B*C.
'"* 5robable cause is always required to engage in a6 full)scale intrusion, a full)blown evidentiary search and
an arrest
b. 5robable cause is often established based on6 police observation, eyewitness accounts, suspect7s own
condition and conduct.
c. 5robable cause may also be based on6 tip from confidential or anonymous informant.
'1* The totality of the circumstances test is used to assess the reliability of an informant7s tip to establish
probable cause.
The factors considered are6
'a* Heracity of informant
'b* ;asis of (nowledge
'c* 5olice investigation that corroborates facts in the tip and establishes the accuracy of an informant7s
predictions
'"* An informant generally need not reveal his or her identity. &owever, if the informant does identify himself,
it bolsters the reliability of the tip because it sub!ects the informant to possible penalty for providing false
information.
'.* -n order to establish probable cause, the totality of these circumstances 'factors* must indicate that the
information provided6 predictive information that only a person with inside access to the person would
(now.
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For a tip to establish probable cause, police corroboration must establish that the tipster provided predictive
insider information. A prediction that any neighbor or 8enemy9 could ma(e to the police 'li(e the car
someone drives, the route they ta(e to wor(, or the time they normally leave every day* does not
indicate insider access, and therefore normally will not establish probable cause. Illinois v. Gates.
d. *easona+le Suspicion is defined as6 articulable information, more than a mere hunch used by individual or
police officer indicating the suspect has or is about to engage in criminal activity
'1* 2easonable suspicion is a level of certainty that will !ustify6 only a brief investigatory seizure 'terry stop*
or a cursory protective stop 'fris(*
2easonable Suspicion will never !ustify an arrest or a full)blown evidentiary search.
'a* A police officer7s sub!ective suspicion 'or instinct, or hunch*6 is not ob!ectively reasonable and
therefore, never sufficient to provide authority to even do a cursory seizure or search.
'b* -n order to transform 8sub!ective 8unreasonable9 suspicion9 to 8reasonable9 suspicion, the
officer must have some verifiable ob!ective fact to support her suspicion.
2easonable suspicion is easily understood as the addition of an ob!ective fact to the police officer7s
sub!ective instinct based suspicion that corroborates that suspicion. Going so permits a reviewing court
to assess whether the police officer has a 8particularized and ob!ective basis9 for suspecting legal
wrongdoing.
#. Applyin' the Fourth Amendment to Sei"ures
1. Arrests '/aimum seizure*
a. 5robable cause is6 always required for an arrest.
b. 5robable cause to arrest may be obtained by a variety of methods, including6 reliance on an informant7s tips
that satisfies the totality of the circumstances test from Illinois v. Gates.
2emember, reasonable suspicion for a Terry Stop can 8blossom9 into probable cause. -f during the investigatory stop the
police officer obtains additional information rising to the level of probable cause, the Terry Stop may be
escalated to an arrest and the suspect may be searched incident to that arrest.
c. There is no requirement to obtain a warrant to arrest a suspect in public, so long as6 police have probable
cause for the arrest.
A suspect is li(e any other piece of evidence the police seize. -f the suspect is in public and police need not intrude
upon a 235 to arrest the suspect, then li(e evidence in plain view police need not obtain a warrant to arrest
'seize* the suspect.
d. An arrest warrant is required6 before police can arrest an individual in his own home unless they have consent
or eigent circumstances to enter the home.
3igent circumstances !ustifying a warrantless entry into the suspect7s home to eecute an arrest
requires the following6
'1* An arrest attempt outside the home is6 thwarted because the suspect retreats into the home.
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'"* There is6 insufficient time to secure the warrant because delay would allow the suspect to evade arrest or
destroy evidence.
'.* The arresting officer is6 in hot pursuit and has probable cause to affect a valid arrest for the suspect.
'0* The officer did not6 deliberately create the eigency !ust to avoid getting a warrant.
#$A%P&#! +hile on a routine patrol, #fficer Iones observes an individual he who matches the
description of a suspect who !ust robbed a cab driver at gunpoint. As Iones approaches the
suspect, the suspect bolts, ignoring Iones7 verbal demands to stop running. The suspect runs into
his house and slams the door behind him. Iones may enter the home to arrest the suspect without
obtaining a warrant.
". Terry Stops
a. 2easonable suspicion that 8crime is afoot9 'a crime is in progress or has !ust been committed by the suspect*
!ustifies a6 brief investigatory seizure or terry stop.
b. 2easonable suspicion that crime is afoot may be established by6
'1* 5olice observations or eyewitness reports
'"* &eadlong flight from police in high crime neighborhood
'.* An informant7s tip coupled with police investigation that corroborates the accuracy of the informant7s
predictions.
'a* $nli(e the test for probable cause, which requires the tip to provide predictive inside information,
reasonable suspicion is established by6 verifying the informant7s predictions even if they don7t
indicate insider access.
'b* ;ut a tip that provides nothing more than eisting information, even if corroborated by police investigation,
does not establish even reasonable suspicion.
#$A%P&#! 5olice receive an anonymous tip that an African American teenager about si feet tall
is at a bus stop wearing a red plaid shirt, and that he has an illegal pistol under his shirt in his belt.
3ven if police corroborate that a teenager matching this description is located at the bus stop
provided in the tip, there is no reasonable suspicion because there is nothing predictive about the
information corroborated. -f, however, the tip indicates that, 8in ten minutes9 the same individual will
arrive at the bus stop, and police wait there and observe his arrival, corroboration of this
information does establish reasonable suspicion, although not probable cause.
c. A police officer is !ustified in requesting a suspect7s name as identification during a Terry stop as long as the
request has an immediate relation to the purpose of the stop.
d. The permissible scope of a Terry Stop is the time required6 acting in due diligence to confirm or deny the
suspicion.
e. The fact that an officer may have also had some improper sub!ective basis for the stop will not result in a
finding that the stop was illegal6 so long as the stop was supported by ob!ective reasonable belief that the
suspect has or was engaged in crime.
.. Sei"ures of Property
a. A warrant based on probable cause is required to !ustify the seizure of property.
b. :o warrant is required if the property is6 in the officer7s plain view.
c. 5lain view requires6
'1* The police are6 in a lawful vantage point to observe the item. They don7t have to conduct search to
observe it
'"* The incriminating nature of the item is6 -//3G-AT3<1 apparent.
and
'.* The officer has6 lawful access to the point of seizure.
d. There is no 8inadvertence9 requirement. 3ven if he police suspect they might find an item while eecuting a
search warrant that they did not list in the warrant, if it comes into plain view the seizure is reasonable.
#$A%P&#! 5olice obtain a warrant to search suspect7s home. The items to be seized listed in the
warrant include stolen coins and stamps. The officer or requested the warrant also anticipates the
suspect has weapons used in a robbery in his home. Guring the search for the coins and stamps, the $zi
machine gun comes into plain view. The officer may seize the machine gun even though it was not listed
in the warrant, and even though he anticipated he would find it. ;ecause he was acting within the scope
of the warrant, and had probable cause to believe the machine gun was contraband, the plain view
doctrine permits the seizure without a warrant.
e. The 5lain Hiew doctrine is6 an eception to the warrant requirement to a seizure. -t never !ustifies a
warrantless search for contraband. :o plain view doctrine for a search.
-f the officer must conduct a search in order to observe the item, it was not in plain view.
#$A%P&#! A police officer is searching an apartment for an individual who shot a bullet through the floor into the apartment
below. +hile in the apartment, the officer observes a stereo receiver that seems to 8high end9 to be in such a run down
apartment. The officer has a hunch the receiver is stolen, so he lifts the receiver to write down the serial number from the
bottom. &e calls in the number and it turns out the receiver was reported stolen. The officer then seizes the receiver. ;ecause
the officer had to move the receiver to establish probable cause it was stolen, and because moving the receiver went beyond
the scope of searching the apartment for a person, the requirements of plain view were not met and the seizure was tainted
by the predicate unreasonable. &ad the serial number been on top of the receiver observable without epanding the scope of
the search for the person, the requirements would have been satisfied and the seizure would have been reasonable. Arizona
v. Hicks.
Arrest 5robable %ause
Seizure Terry Stop 2easonable Suspicion
%rime is Afoot
:o Seizure 2outine 5olice &unch
3ncounter
Guration
SEIZURE
F. Applyin' the Fourth Amendment to Searches
1. Searches pursuant to a warrant. Absent independent !ustification, the search warrant can only be used search
named places or persons.
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a. The scope of the search is limited to6 the premises described in the warrant.
b. :onetheless, contraband6 not listed in the warrant may be lawfully seized under the plain view doctrine during
warrant eecution so long as it comes into plain view within the scope of the warrant.
c. A location owned by non)suspects may be searched upon obtaining a warrant.
d. A search warrant for premises carries with it the right to detain persons in the home during the search but not
right to search those parsons unless they are listed in the warrant.
". )arrantless Searches! #xceptions to the )arrant *e,uirement! A warrantless search is unreasonable unless it
falls within one of the following established eceptions.
a. Searches -ncident to a &a(ful Arrest .S-T&A/! A warrantless search of the arrestee and6 the area within his
immediate control 'wingspan* is automatically permitted following a lawful arrest.
'1* S-T<A is triggered by a lawful arrest.
'a* A sub!ective ulterior motive by the arresting officer is irrelevant. So long as6 the law authorized
arrest for the offense, S-T<A authority is triggered.
'b* There is no authority to conduct a search incident to citation, even if the offense is one that
permitted the officer to arrest the suspect.
'"* A search incident to a lawful arrest must be contemporaneous with the arrest and in rare cases, even
precede it slightly.
'.* Although the rationale for the S-T<A is protection of the arresting police officers and preservation of
evidence, there is no requirement to individually !ustify each S-T<A.
'0* S-T<A is6 automatic
#$A%P&#! A search of a defendant7s pac( of cigarettes that contained heroin was held lawful as
incident to his arrest for a traffic violation.
#$A%P&#! A driver was ordered out of his vehicle and a full search was held lawful, even though
the arrest was only for a traffic violation.
'D* -f a suspect is arrested in a home, the scope of S-T<A is limited to area within his lunging distance where
is arrested, and does not include authority to search entire house.
'a* &owever, if police have a reasonable basis to believe they may be at ris( of ambush while in the
home, then the police can do a cursory protective sweep of other parts of the home to rule out the
ris( that a person may be laying in wait for them. Maryland v. Buie.
'b* This 8Terry sweep9 of the home is limited to ruling out the ris( of ambush, therefore scope is limited
to where person may be hiding.
'B* +hen an arrest is affected while the defendant is in a car or has immediately eited the car, a special
rule applies to the scope of the S-T<A =Arizona v. GantC6
'a* <i(e any other arrest6 the police may automatically search the arrestee.
'b* -f the arrestee has genuine access to the interior of the car after being placed under arrest6 the
scope of the S-T<A etends to the interior of the car and all containers within the area.
'c* -f as the result of being placed under arrest the arrestee does not have genuine access to the
interior of the car6 a search of the interior of the car is permitted only when police have reasonable
belief that evidence related to the crime of the arrest is inside the car.
#$A%P&#! 5olice have probable cause to arrest suspect for the offense of driving on a
suspended license. 5olice wait for him to arrive at his home. +hen he arrives, police confront
him as he is getting out of his car and place him under arrest. Suspect is placed in handcuffs
and police search his person and find a vile of heroin in his poc(et. Suspect is then placed in
the bac( of a police cruiser. 5olice then search the interior of his car and find an unregistered
pistol in the glove bo. The heroin will be admissible because the search of the suspect7s
person was within the proper scope of the S-T<AE the pistol will be inadmissible because the
suspect was secured and did not have access to the car at the time of the search, and there is
no reasonable basis to believe evidence related to the crime of driving on a suspended license
will be found in the car.
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#fficer Smith is eecuting an arrest warrant for Ierry. &e (noc(s on Ierry7s door and is let in. &e pats Ierry down
and searches the closet and dresser in the room. Iones does not believe anyone else is in the home. &e then goes
up the stairs and searches all the rooms on the second and third floors. #n the third floor, he finds a stoc(pile of
automatic weapons and eplosives. -s this an illegal search,
Yes. Officer Smith had a arrest !arrat "t search !arrat. He ma# eter the h"me
ad search $err#% ad a#thi& i $err#'s !i&s(a as (art "f SITLA. Mar#)ad *. B+ie
a))"!s a (r"tecti*e s!ee( "f (remises% ,+t Smith had " reas" t" ,e)ie*e that a#"e
e)se !as iside the h"me. Oce he !et "+tside the sc"(e "f the SITLA ad ()ai *ie!%
as he did i &"i& +( the stairs% he c"d+cted a +)a!f+) search ad the !ea("s he
f"+d !"+)d ,e iadmissi,)e as fr+it "f the ("is""+s tree d"ctrie.
b. Automo+ile #xception to the )arrant *e,uirement
'1* 5olice may search an automobile or any other self)propelled conveyance 'motor home, boat, or airplane*
without a warrant6 so long as they have probable cause.
'a* This eception is !ustified by6 the inherent mobility of the conveyance and the reduced epectation
of privacy resulting from pervasive government regulation.
'b* The warrant eception applies to6 all containers within the vehicle.
'c* This means that if police have probable cause to search inside a closed container6 once that container is
placed in the vehicle, or found in vehicle, it may be opened and searched without a warrant.
'"* #nce police have probable cause to search the moving or temporarily stopped vehicle, they may6 seize
the vehicle, bring it to the impound lot, and search it later even if there is sufficient time to obtain warrant
between seizure and search.
'.* S-T<A is automaticE automobile eception !ust gets rid of warrant section6 The permissible scope of the
search is dictated by the probable cause, which prohibits police from automatically searching the entire
vehicle.
#$A%P&#6 5olice have probable cause to believe suspect is transporting a stolen DF9 flat panel
television in the trun( of his car. 5olice may stop the car and search for the television without a
warrant. &owever, they may only search in parts of the car where suspect could store the
television.
'0* -mmobile vehicles. -f a vehicle is incapable of locomotion, or is par(ed in an area not proimate to public
roads6 the automobile eception is not applicable
'a* Accordingly, the police must6 obtain a warrant to search this vehicle or apply some other eception
such as consent.
'b* &owever, this is a very narrow limitationJ being par(ed in a par(ing lot in a place where automobiles
normally stop temporarily does not trigger this limitation.
'D* Any automobile stop, for eample to issue a citation, may lead to probable cause there is contraband in
the vehicle. -f probable cause arises after the warrantless stop, then there is no need for a warrant.
#$A%P&#6 #fficer Iones pulls suspect over for speeding. As he is writing the citation, he as(s
suspect, 8do you have anything in the car - should (now about,9 Suspect responds, 8!ust a little
weed in the glove compartment.9 #fficer Iones may now search the glove compartment for
mari!uana, and any contraband he observes while doing so is sub!ect to a plain view seizure.
c. The Special 3eeds octrine
'1* 5olice are permitted to use chec(points to conduct brief seizures andKor limited searches no
individualized suspicion or warrant in response to a public safety danger that cannot be addressed by
complying with the normal individualized suspicionKwarrant requirements.
'"* The primary purpose of a special needs search or seizure6 the police will be unable to protect us from
imminent danger if they have to first establish probable cause or reasonable suspicion. This is also
(nown as suspicionless search and seizure.
'a* -f the primary purpose is6 to protect the public from an immediate danger. -f primary purpose is
general crime control or discovery of evidence of crime, this eception does not apply.
'b* %ommon special needs chec(point searches include sobriety chec(points, search for recently
escaped prison inmates, counter)terrorism chec(points, and chec(points to search for suspects of
a recent crime.
#$A%P&#6 5olice set up a chec(point to search vehicles for evidence of illegal drugs. The
chec(point violates the Fourth Amendment because its primary purpose is indistinguishable from
the general interest in crime control and because the chec(point is not based on individualized
suspicion of wrongdoing. Indianapolis v. Edonds.
'.* A special needs search or seizure must be6
'a* ;ased on a fied formula that6 deprives individual officers of the discretion to select sub!ects.
'b* :arrowly tailored in scope6 to address the specific threat.
#$A%P&#6 -n response to heightened intelligence reports of possible terrorist subway bombings,
police may establish chec(points to randomly search bags of subway passenger. 5olice may only
loo( in bags capable of concealing a bomb.
'c* ;e conducted in a location and a manner that minimizes citizen aniety.
'0* 5olice may seize any contraband that comes into plain view while searching within the scope of the
special needs inspection6 even if the contraband is unrelated to the public safety concern.
'D* 5olice officers may not6 randomly stop vehicles to chec( the license and registration.
'B* %ustoms officials may stop vehicles at permanent chec(points located at or near the border with6 no
suspicion or cause as an incident of national sovereignty.
;ecause a special needs stop is a seizure, if it is unreasonable 'not based on a valid special needs !ustification*,
any evidence it leads to will be tainted by the stop. &owever, if it is reasonable, any subsequent search or
seizure will be unaffected by the stop, even if the evidence is unrelated to the special need.
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Angela is stopped at a sobriety chec(point. #fficer Iones stands near the driver7s side window and as(s Angela for her
license and if she has been drin(ing. +hile Angela is answering, through the passenger window Iones sees the end of a
bong stic(ing out of a bag. #fficer Smith then has Angela step away from the car. &e ta(es the bag from the car, seizes
the bong, and searches the contents of the bag. -nside the bag he finds felony amounts of mari!uana. -s the seizure of
34A/
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the bong and the mari!uana reasonable,
S",riet# chec- ("it is +der (+r*ie! "f s(ecia) eeds search !here,# (")ice ca +se
chec-("its t" carr# "+t ,rief searches ad sei.+res. P")ice ca search ad sei.e a#
c"tra,ad that c"mes it" ()ai *ie! as a res+)t "f this search% e*e if it is +re)ated t"
sc"(e "f search. Oce (")ice "fficer sees ,"& /+tti& "+t "f ,a&% it creates (r",a,)e ca+se
t" sei.e ,"& ad the ,a& ,eca+se it is i a a+t"m",i)e% ad a)) c"taiers i a+t"m",i)e
s+,/ect t" a+t"m",i)e e0ce(ti"% !hich meas " !arrat is re1+ired t" c"d+ct a search.
d. Consent
'1* %onsent is an eception to both the warrant and probable cause requirements. -f an individual waives
her right to privacy by consenting to a search6 the search is reasonable even if the police officer as(ed
for it on a hunch
'a* Any evidence observed in plain view within the proper scope of a consent search6 may be seized
pursuant to plain view doctrine.
'"* %onsent must be6 (nowing and voluntarily. Holuntariness is assessed based on totality of circumstances.
'a* %onsent is invalid if it is obtained by asserting a fa(e warrant, fraudulently, under duress, or
pursuant to an unlawful police threat 'a threat to do something that the officer has no authority to
do*.
'b* &owever, the police are not required to inform a suspect of the right to decline to give consent.
'.* -n certain situations, valid consent is implied by virtue of engaging in specific behavior, such as traveling
by airplane or engaging in a regulated business.
'0* :ormally, the scope of consent is implied by the request andKor the item the officer indicates he is
loo(ing for.
#$A%P&#! Aida Fellon, eager to show that she did not have anything to hide and to get the police
off of her bac(, invites them to chec( the car epecting the police to only loo( in the passenger
compartment. The police were !ustified in arresting her when they found heroin around the
transmission because she gave the police permission to chec( the car and never limited the scope
of the search.
'D* An individual has an absolute right to refuse to grant consent, to withdraw consent once granted, or to
limit the scope of consent. &owever, an individual must6 clearly epress any limitations on scope of
consent prior to officer finding evidence,
2emember, if consent is obtained following an unlawful seizure, the unlawful seizure is a poison tree that
taints the consent and any evidence it leads to.
'B* Third4Party Consent
'a* Any person who has !oint control or use of shared premises6 may consent to a valid search and any
evidence seized in plain view may be used against the co)occupants.
'b* Such consent applies to6 common areas but not to private reserved areas where defendant has
eclusive control.
'c* A police search based on consent is reasonable so long as6 the person granting consent has actual
authority over the place #2 a reasonable police officer would have relied on the consent.
#$A%P&#6 5olice respond to a report of domestic battery. They arrive at the home of the victim7s
34A/
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mother, where the victim is located. The victim says her boyfriend beat her, and that he is in their
shared apartment. The police as( the victim if she has the (ey, and she provides it to them and grants
them consent to search the apartment. 5olice enter the apartment, arrest the boyfriend, and seize
cocaine they observe in plain view on the coffee table. -t turns out the victim moved out about a
month earlier and did not have actual authority to grant consent. The search is nonetheless
reasonable so long as a reasonable officer would have concluded she did have consent at the time
she granted it.
#$A%P&#! A landlord may not consent to the search of a tenant7s apartment.
#$A%P&#! A motel owner may not consent to the search of a guest7s room.
#$A%P&#! An employer may not consent to the search of an employee7s private storage
area.
'd* A present and o!ecting co)tenant trumps consent granted by the other co)tenant.
&owever, if the suspect is not present and does not ob!ect, the co)tenants consent is valid
against him.
01P2T0#T-CA&
#fficer Iones pulls over %armella for speeding. %armella7s friend Adriana is also in the car. Iones has a hunch there
might be drugs in the car, and as(s %armella if she has any drugs in the car. She says no. &e then says, 8then -
assume you wouldn7t mind letting me ta(e a loo( in the trun(,9 %armella agrees, and opens the trun(. -n the trun(
Iones sees a bac(pac(, and as(s %armella if it is hers. She says no, that it belongs to Adriana. Iones then as(s
Adriana if he can ta(e a quic( loo( inside, and Adriana hesitates. Iones then says, 8if you don7t let me loo( -7ll !ust
(eep you both here until - can get a drug dog on scene, and if the dog alerts on the bag or anywhere else in the car -
am going to search it.9 At that point, Adriana says, 8- guess - have no choiceJgo ahead and loo(.9 Iones opens the
bac(pac( and finds mari!uana inside. -s the mari!uana admissible,
N". Officer $"es had " reas"a,)e s+s(ici" t" h")d Carme))a ad Adriaa f"r )"&er
tha !hat it !"+)d ta-e t" iss+e a citati" ,ased " a h+ch. If he did% that !"+)d ,e
+)a!f+). He threated her !ith +)a!f+) c"d+ct% ad the she ac1+iesced% !hich is "t
(ermissi,)e% ad reders the c"set2search i*a)id. If he had reas"a,)e s+s(ici"% the
it !"+)d ha*e ,ee )a!f+) f"r him t" h")d the ,ac-+( f"r a reas"a,)e (eri"d "f time
thr"+&h a Terr# sei.+re ti)) he c"+)d &et a dr+& d"&.
e. 0ot Pursuit! A warrantless search for a suspect is lawful when6 police are in actual hot pursuit of the suspect
to apprehend him.
'1* 5olice may enter and search a private dwelling6 while in hot pursuit of a fleeing suspect even if dwelling
is not of the suspect.
'"* 5olice may eecute a warrantless arrest the suspect in the premises and6 also seize any contraband
they see in plain view pursuant to hot pursuit entry.
01P2T0#T-CA&
Two police officers are pursuing a purse)snatcher on foot and follow the thief right into the home of 5ierre, a
person with no connection to the purse thefts in any way. +hile attempting to wrestle the purse)snatcher to the
floor in the living room, the officers observe about twenty small plastic bags with white powder inside on a coffee
table and seize them. After they arrest the purse)snatcher, police search his poc(ets and seize a vile of cocaine.
Are the warrantless seizures reasonable,
Yes% (")ice ma# eter ad search a (ri*ate d!e))i& !hi)e i h"t (+rs+it "f a f)eei&
s+s(ect e*e if d!e))i& is "t "f the s+s(ect. 3hi)e at the (remises% (")ice ca sei.e
a# c"tra,ad the# see i ()ai *ie! (+rs+at t" their h"t (+rs+it etr# ad arrest
the s+s(ect " the (remises% !hich is !hat ha((eed i this case.
f. #xi'ent Circumstances
'1* %losely related to &ot 5ursuit is 3igent %ircumstances6 5olice may search without a warrant when the
situation indicates waiting to obtain a warrant will result in6
'a* imminent destruction of evidence
'b* imminent escape of the suspect
'c* imminent ris( to the police or other people in the area.
'"* 3igency !ustifies a warrantless search and seizure of evidence in or on a suspect7s body provided that6
'a* There is probable cause to believe that6 nature of the evidence renders it easily destroyed or li(ely
to disappear before a warrant can be obtained.
#$A%P&#! Guring a Terry stop, a police officer sees a drug suspect place a pill in his mouth.
The officer may grab the suspect on the throat in order to force the suspect to spit out the pill.
'b* The procedure for seizing the evidence is6 reasonable and does not shoc( the conscience.
#$A%P&#! The blood)alcohol level of a drun()driving suspect will diminish over time. An individual
suspected of murder by strangulation may have evidence under his fingernails that he may easily
remove. ;oth types of evidence are easily destroyed or li(ely to disappear and thus may be obtained
from the suspect7s body by reasonable means, such as withdrawing blood by a trained medical
specialist, or scraping under the nails with a nail file. -f the method used was the only viable means to
protect the evidence, it is more li(ely to be considered reasonable.
#$A%P&#! 5ummeling a suspect7s stomach with nightstic(s to induce vomiting before having
the suspect7s stomach pumped at the 32 to retrieve illegal drugs swallowed is not considered
a reasonable procedure for obtaining evanescent evidence. Such techniques 8shoc( the
conscience9 and violate due process =2ochin v. %alifornia, .0" $.S. 1BD '1@D"*C.
'.* 3igency !ustifies6 a warrantless crime scene search to see( other victims or a remaining (iller.
'0* Although, this eception does not authorize6 to do a search at the crime scene unrelated to this eigency
purpose.
g. The Terry Search .Fris5/
'1* A Terry Fris( is a cursory search for weapons or some other instrumentality that creates an imminent
danger to the officer of others in close proimity. A Terry Fris( is !ustified only by6 reasonable suspicion
the suspect is armed and dangerous, unli(e a Terry stop.
A Terry Stop is !ustified by 2easonable Suspicion 8crime is afoot9E a Terry Fris( is !ustified only when the
reasonable suspicion also indicates the suspect is armed and dangerous.
34A/
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'.* The eclusive !ustification for a Terry Fris( is6 protective, not to search for evidence.
'0* As a result, the scope of a Terry fris( is strictly limited to a cursory inspection of the suspect7s outer
clothing to confirm or deny that the suspect is armed.
'a* -f the fris(Kpat down results in the officer feeling something he (nows immediately is a weapon or
any other contraband6 the officer may seize the weapon or contraband, pursuant to plain touch
variant of plain view doctrine.
'b* &owever, because the eclusive purpose of a Terry fris( is to protect from danger caused by
weapons and not to search for evidence, if the officer feels something he (nows is not a weapon but
merely suspects is contraband and has to manipulate the item to establish probable cause to seize6
the manipulation eceeds the scope of the Terry fris( and seizure of contraband is unreasonable.
'c* +hy, ;ecause the incriminating nature of the contraband was beyond the scope of the Terry fris(.
'D* The protective rationale for a Terry Fris( has been etended to6
'a* A brief cursory loo( in areas within an automobile where police have reasonable suspicion6 a
person stopped will have immediate access to a weapon after getting bac( into the car i.e. after a
traffic citation. The police can only loo( in places where the person can immediately grab a
weapon.
'b* A cursory sweep of the interior of a home when police enter the home to serve a warrant based on
reasonable suspicion that others may be present in the home and capable of launching an ambush.
Any evidence found can be grabbed pursuant to plain view doctrine.
Full ;lown Search 5robable %ause
Search Fris( 2easonable Suspicion
of Ganger
:o Search :o -ntrusion into 235 &unch
/otive
SEARCH
01P2T0#T-CA&
A police officer sees %hristopher pacing in front of a !ewelry store and going bac( and forth to consult with some friends a
bloc( away about four times. ;ased on his years of eperience, the officer suspects the group is planning to rob the store.
/ay the officer lawfully approach %hristopher to as( a few questions, -f %hristopher tries to wal( away, may the officer stop
and question %hristopher, /ay he fris( %hristopher,
Yes% the "fficer is a))"!ed t" a((r"ach ad as- 1+esti"s ,ased " mere h+ch as that
is "t a sei.+re. He ca st"( ad 1+esti" Chris ,eca+se he has reas"a,)e s+s(ici"
that Chris is +( t" " &""d. Yes% he ca a)s" fris- Chris ,eca+se it is reas"a,)e t"
c"c)+de that s"me"e ()ai& t" r", a st"re is armed ad da&er"+s.
01P2T0#T-CA&
<ate one night, #fficer /atthews, while on solo patrol, pulls 2oger over for speeding. /atthews as(s 2oger to eit the car, ta(es his
license, and calls in his name. /atthews learns that 2oger has a prior record for possession of an illegal pistol. /atthews returns to
2oger and gives him the tic(et and says, 8do you have any weapons in the car,9 2oger hesitates a moment and then says, 8nope.9
;efore /atthews lets 2oger bac( in the car he leans in and ta(es a quic( loo( with his flashlight under the front seats, on the
floorboards of the front, and between the two seats. ;etween the seats he sees a plastic bag with green leaf inside. /atthews
seizes the bag, and later testing confirms it contains mari!uana. +ill the mari!uana be admissible,
Yes. The st"( !as )a!f+) ,eca+se R"&er !as s(eedi&. The a+th"rit# t" search is "t ,ased
" citati" ,+t the ,ac-&r"+d chec-% !hich re*ea)s that R"&er has a (ri"r rec"rd f"r
i))e&a))# ("ssessi& a (ist")% ad he hesitated t" as!er !he he !as as-ed a,"+t c+rret)#
("ssessi& a !ea(". Th"se t!" facts esta,)ish reas"a,)e s+s(ici" that R"&er ma# ,e
armed ad da&er"+s% !hich a))"!s the "fficer a !arrat)ess c+rs"r# Terr# search "f a
a+t"m",i)e ad t" sei.e a#thi& i ()ai *ie!. He fids dr+&s% !hich is admissi,)e (+rs+at
t" the a+th"rit# f"r a Terr# search.
h. Administrative Searches! Administrative searches are an eception to the normal probable cause and
warrant requirement because6 conducted for noncriminal purposes and therefore, !ustified on a lower standard of
cause.
'1* Agency -nspections
'a* An administrative search is really best understood as an 8agency compliance inspection9 whereby
compliance with administrative regulations or health and safety codes is verified.
'b* ;ecause the primary purpose of these searchesKinspections is not discovery of evidence of crime6
they are !ustified on reasonable suspicion, not probable cause.
'c* :ormally, agency inspectors will also be required to obtain an administrative warrant to search
private homes or businesses, with some eceptions6
1* Airport Screenings. To protect airline passengers from weapons and eplosives, warrantless
administrative searches are permitted at airports. A passenger may avoid being searched by
declining to board the plane.
"* ;order Searches
a* %ustoms and immigration officers6 may conduct routine searches of people and
property, crossing the borders of the $.S. without individualized suspicion.
A border search may occur at any border crossing, to include international airport ports of entry, and fied border
inspection stations established several miles inside the $nited States on highways.
i* Hehicles at a border crossing6 may be stopped for
questioning.
ii* 2easonable Suspicion is required to fully search the vehicle when
unusually intrusive search, such as a body cavity search or a
search that results in destruction of the property.
iii* +here a suspect refuses to submit to an 4)ray by customs agents at the border, and
reasonable !ustification for detention initially eists, the detention may continue until a
bowel movement occurs.
G. Fourth Amendment *emedies! Standin' and the #xclusionary *ule. Iust because a search or seizure violates the
Fourth Amendment does not automatically mean the defendant will be entitled to the remedy of eclusion of the
evidence. 3clusion requires that the violation6 was directed against the defendant7s fourth amendment protection.
34A/
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1. -n order to claim the remedy of eclusion, three requirements must be satisfied6
a. The unreasonable search or seizure must trigger the remedy of eclusionE
b. The defendant claiming the remedy 'see(ing eclusion* must have standingE violating (noc( and announce
rule does not.
c. The facts do not support applying an eception to the eclusionary rule
". Standing. The defendant asserting the Fourth Amendment remedy of eclusion must6 personally be the victim of
the unreasonable search and seizure.
a. -n analyzing standing, the court must determine6 8whether the person who claims the protection of the
amendment, have a legitimate 23#5 in the place9
b. -n order to have standing, a defendant must show that6 the unreasonable search and seizure intruded on his
personal constitutional rights.
c. A defendant may not! vicariously assert someone else6s constitutional ri'hts.
#ffering unlawfully seized evidence against a defendant does not give the defendant standing to see( eclusion.
$nless the government illegality intruded upon the defendant7s Fourth Amendment protection 'was an
unreasonable search of his 23#5 or seizure of his property*, the defendant cannot prohibit the introduction of
the evidence, even if the police obtained it by violating someone else7s Fourth Amendment protections.
#$A%P&#! A criminal defendant does not have standing to dispute the unreasonable search of a
friend7s bac(pac( that leads to the seizure of evidence that incriminates him, even if he gave it to his
friend to carry. This is because the unreasonable search was not directed against the defendant7s
constitutional protected 235, and once the police were inside the bag the evidence was seized
lawfully pursuant to the plain view doctrine.
d. The following rules are used to assess standing6
'1* A defendant has standing if6 has ownership or possessory interest in place searched or item seized.
'"* The owner of a car, or the person in possession of the car 'li(e someone who rents a car* has standing
to6 see( eclusion of evidence obtained as a result of an unreasonable search of the car.
'a* 5assengers in the car do not have standing to complain about the search of the car. :o possessory interest.
'b* &owever, when an automobile is seized, all occupants in the automobile are seized, even if they are !ust
passengers with no ownership or possessory interest in the car.
1* An unreasonable seizure of a car equals6 an unreasonable seizure of all passengers in the
car.
"* -f a passenger has been seized unreasonably, this unlawful seizure is a poison tree, which may
require the eclusion of evidence the seizure leads to.
'.* Luests in someone else7s residence6
'a* A defendant who is an overnight guest in another7s home6 has standing to challenge the search of a
home.
'b* Short)term commercial visitors, or non)overnight social guests6 normally do not have standing to
complain about the place searched.
.. #xclusionary *ule
a. A defendant who has standing to complain about an unreasonable search or seizure may6 invo(e the 3 rule o
prohibit the government from introducing the evidence as a direct or derivative result an unreasonable SKS
34A/
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b. Fruit of the Poisonous Tree octrine! -n addition to ecluding the direct evidence obtained as the result of
the unreasonable search or seizure, any additional evidence derived from the initial illegality, including oral
statements and physical ob!ects6 FA<<S within the scope of the eclusionary rule as tainted fruit of the
poisonous tree.
Always as( if there is a 8but for9 connection between the evidence the prosecution see(s to admit and a violation of
the defendant7s constitutional rights. -f so, the evidence falls within the fruit of the poisonous tree doctrine.
01P2T0#T-CA&
5olice pull over a car without any lawful !ustification. The officer runs the drivers license and then
arrests the drive for an outstanding warrant, conducts a S-T<A of the driver and finds cocaine in her
poc(et. The officer then as(s the passenger for consent to search his bac(pac(, which he grants.
-nside the bac(pac( the officer finds mari!uana and seizes it. ;oth the driver and passenger are
brought trial, and both move to suppress the drugs seized by the officer. +ill the evidence be
ecluded,
A)) e*idece !i)) ,e e0c)+ded ,eca+se dri*er ad (asse&er !ere the *ictims "f
+)a!f+) sei.+re. 3he a car is (+))ed "*er ad sei.ed !ith"+t a# )a!f+)
/+stificati"% a)) "cc+(ats i the car are sei.ed% ad ha*e stadi& t" assert a
*i")ati" "f their F"+rth Amedmet ri&hts. 4,+t f"r5 (+))i& the car "*er i))e&a))#%
the (")ice !"+)d "t ha*e ,ee a,)e t" fid the c"caie "r the mari/+aa s" a))
the e*idece !i)) ,e e0c)+ded as fr+it "f the ("is""+s tree.
c. -n order to invo(e the fruit of the poisonous tree doctrine, the initial government illegality must +e a
constitutional violation. The Supreme %ourt has held that a violation of the /iranda warning and waiver
requirement does not result in an actual violation of the Fifth Amendment. Therefore, /iranda violation is not a
poison tree .the only consequence of a /iranda violation is inadmissibility of the confession in the prosecution
case)in)chief*.
#$A%P&#! %riminal defendant is arrested lawfully but not read her /iranda warnings. After being sub!ected
to custodial interrogation, she confesses to being a runner for a drug ring and tells the police where the drugs
are manufactured and stored. 5olice use the confession to obtain a search warrant and find and seize the
drugs. &er confession is inadmissible in the prosecution case)in)chief because police violated the /iranda
rule, but the drugs seized are admissible even though there is a 8but for9 lin( between the /iranda violation
and the drugs, because the /iranda violation is not a poison tree =US v. "ataneC.
d. 3ceptions to Fruit of the 5oisonous Tree eclusion. 3vidence with a 8but for9 lin( to a constitutional violation
'poison tree* may still be admitted if the government can prove applicability of one of three eceptions6
'1* -ndependent source! -f the evidence is obtained from a lawful independent source it is6 admissible,
even if police acted illegally to confirm the location of the evidence.
'a* -n other words, there is6 no 8but for9 lin( between seizure of the evidence and a violation of
defendant7s constitutional rights, there may be poison tree but because the evidence did not come
from poisonous tree, it is admissible.
#$A%P&#! 5olice surveillance establishes sufficient information to establish probable cause
defendant is storing large amounts of mari!uana in a warehouse. The lead detective sends one
officer to the courthouse to present the information to a magistrate and request a search warrant.
34A/
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The officer does so, and the magistrate issues the search warrant. ;efore the officer returns with
the warrant, the lead detective unlawfully enters the warehouse !ust to confirm that what they
thin( they are going to find is actually there. &e observes large amounts of mari!uana. &e then
departs the warehouse and awaits the officer with the warrant. +hen the officer arrives with the
warrant, they once again enter the warehouse and seize the mari!uana. This evidence is
admissible. Although the police committed an unreasonable search of the warehouse 'a poison
tree*, that search in no way impacted the information submitted to obtain the warrant. Therefore,
although there was an unlawful search 'a poison tree* there is no 8but for9 connection between
the tree and the 8fruit9 'the mari!uana* because the unlawful search did not lead to the evidence.
-t is therefore admissible =Murray v. United States, 0?A $.S. D.. '"FFD*C.
'"* -nevita+le discovery! 3vidence that is obtained through a poison tree 'a but for connection to a violation
of the defendant7s constitutional protection* will still be admissible if6 the police would have inevitably
discovered the evidence through an independent source.
#$A%P&#6 Gefendant leads Getective <eaming to the body of his murder victim after <eaming
elicits a confession from the defendant in violation of the defendant7s Sith Amendment right to
counsel. This violation is a poison tree, and 8but for9 this constitutional violation, <eaming would not
have found the body. &owever, because at the time <eaming finds the body other police were
systematically searching in the same area, the %ourt concluded they would have 8inevitably9 found
the body in virtually the same condition independent of the constitutional violation. Therefore the
body was admissible.
'a* -nevitable discovery is really another way of saying 8almost independent source.9
'b* ;ecause police obtain the evidence as the result of a 8but for9 lin( to a poison tree6 it is essential the
government prove independent source discovery was truly inevitably.
<oo( to see if the gears of independent discovery had already been set in motion.
#$A%P&#! Gefendant is arrested for driving under the influence. &e voluntarily gets out of his
car and, after failing the field sobriety test, is handcuffed and placed in a police car. &is car is
then loc(ed and left by the side of the road until the police are able to come bac( to tow the
car bac( to the police station for an inventory search. ;ut, before the tow truc( comes to
collect the car, the police officers search the entire car, including the trun( and glove
compartments, without a warrant and find in the trun( evidence of a gambling ring being run by
the defendant. This evidence would most li(ely not be suppressed under the doctrine of
inevitable discovery.
'.* Attenuation! 3vidence with a 8but for9 lin( to a poison tree may be so distant from the initial illegality
that6 the taint of the poison is purged from the fruit and is therefore, inadmissible.
'a* This eception turns on a combination of the flagrancy of the constitutional violation 'the more
flagrant, the more potent the poison* and the distance between the violation and the evidence.
'b* This eception will often be asserted when police obtain a voluntary confession following an
unlawful arrest.
1* -f the confession follows immediately after the unlawful arrest6 the eception will rarely apply
"* Factors supporting attenuation include6
a* a different location
b* passage of time
c* different officers
34A/
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d* a valid /iranda waiver
-t is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a required
warrant even though they had probable cause 'li(e an in home arrest without a warrant* than an
arrest where the police did not even have probable cause. This is because the 8poison9 from the first
violation is less potent than the 8poison9 from the second violation.
e. 2ther &imitations to the #xclusionary *ule
'1* -mpeachment. The eclusionary rule does not apply6 to the use of tainted or inadmissible evidence to
impeach the defendant7s testimony.
A defendant can7t hide behind the eclusionary rule to lie.
'"*Lood Faith 3ception6 ;ecause the eclusive ob!ective of the eclusionary rule is to deter police
misconduct, when police act in good faith reliance on a warrant that is subsequently ruled invalid, the
evidence seized will not be sub!ect to eclusion.
+arrants are usually issued by magistrates based on their conclusion the evidence presented is sufficient to
establish probable cause. /otions to eclude that evidence are presented to the trial court, which then
reviews the warrant application in order to determine whether the magistrate made a proper
determination of probable cause. Sometimes the trial court determines the magistrate made a mista(e in
issuing the warrant because of a lac( of probable cause. &owever, so long as a reasonable officer would
have still relied on the warrant, eclusion will have no deterrent value on future police conduct and is
therefore not appropriate.
'a* <imitations to the good)faith eception. ;ecause the rationale of the good faith eception is prohibit
admission of evidence obtained as the result of 8unreasonable9 police conduct, the good faith
eception is inapplicable where6 a reasonable officer would (now not to rely on warrant.
'b* This 8eception to the eception9 will apply6
1* +here the police6 lie or mislead the magistrate. A lie by one officer is imputed to other officers.
"* +here the warrant is6 so facially defective, that no reasonable officer would rely on it
.* +here a reasonable officer would (now that the magistrate is not neutral and detached.
'c* The Supreme %ourt has recently etended the good faith eception to an arrest in reliance on a
warrant that should have been purged from the system by the police. *ule6 :o eclusion of the
evidence even when there is police error so long as the error is isolated negligence attenuated from
the point of arrest
01P2T0#T-CA&
#fficer Iones wants a warrant to search Fran(7s apartment. &e submits an affidavit to the magistrate indicating a confidential
informant provided reliable information that Fran( is growing mari!uana in his basement. Iones falsely indicates that the %- has
provided reliable tips on ? of the prior @ occasions. -n fact four of those prior tips have proven to be erroneous. The magistrate issues
the warrant, and #fficer Iones gives it to the drug suppression team. That team, unaware of the misrepresentation, eecutes the
warrant and discovers mari!uana and other evidence. +ill the mari!uana other evidence be admissible,
$"es )ied ad mis)ed the ma&istrate i "rder t" ",tai !arrat. Sice there is
,ad faith fr"m the "fficer% +der the e0ce(ti"s t" &""d faith e0ce(ti"% his )ie is
im(+ted t" "ther "fficers% ad the e*idece !"+)d ,e iadmissi,)e.
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BAR E6AM APPLICATION
Muestion 1
Guring a burglary, Gu(e steals several handguns. Gu(e sells one of the stolen handguns to 3arline, a 1B)year)old high
school student. 3arline places the handgun she purchased from Gu(e in the trun( of her car. The !urisdiction in which 3arline
lives has enacted a curfew for drivers under the age of 1?. +ith several specified eceptions, any driver younger than 1? is
not permitted to drive on public thoroughfares after 1F p.m. and before D a.m., unless an adult 'an individual at least 1? years
old* with a driver7s license is a passenger in the car. Approimately one wee( after 3arline purchased the handgun from
Gu(e, she is pulled over for violating the curfew. The police officers that stop her as( her to step out of the car. #ne of the
officers fris(s 3arline, and then both officers search the passenger compartment of 3arline7s car. +hen the officers do not
find anything of interest in the passenger compartment, they proceed to search the trun( of 3arline7s car. $pon opening the
trun(, they immediately discover the handgun. 3arline tells the officers that she purchased the handgun from Gu(e. Gu(e is
arrested and charged with burglary and illegal sale of a handgun. 5rior to trial, Gu(e files a motion to suppress the handgun.
The trial court will most li(ely
A* Geny the motion, because the search was incident to a lawful arrest.
B/ eny the motion, +ecause u5e does not have standin' to invo5e the exclusionary rule.
%* Lrant the motion, because the scope of the search was unreasonable.
G* Lrant the motion, because the handgun was fruit of the poisonous tree.
BAR E6AM APPLICATION
Muestion "
#n a slow night, a police officer decided to stop of a vehicle traveling on a city street. The officer pulled over the vehicle
based on an instinct that the driver was intoicated, and as(ed the driver for his license and registration, and has the driver
and passenger eit the vehicle. The officer then loo(ed under the seats of the vehicle. &idden under the passenger seat he
sees a plastic baggie with green leaf contents. The officer seized the bag, and the substance later tested to be mari!uana. At
trial, the passenger filed a motion to eclude the mari!uana from evidence.
&ow should the trial court rule,
A/ %otion 'ranted, +ased on an unla(ful sei"ure.
;* /otion granted, based on an unlawful search.
%* /otion denied, because the passenger lac(ed standing.
G* /otion denied, because the baggie was in the officer7s plain view.
III. STATEMENTS AND CONFESSIONS
F#$2 ;AS3S T# 34%<$G3 STAT3/3:TS A:G %#:F3SS-#:S
Approach %onstitutional ;asisKtriggerKtest
7. 8oluntariness ApproachJStatements obtained by
actual coercion are involuntary and inadmissible for
any purpose.
N Gue 5rocess %lause of Dth and 10th Amendments
N Triggered by government conduct that overbears the free will
of the suspect
N Totality of the circumstances
9. *i'ht to Counsel Approach .%assiah/JThe
deliberate elicitation of a statement from a defendant
'someone who has been formally charged* is
inadmissible unless counsel was present or police
obtain a (nowing and voluntary waiver.
N Bth Amendment 2ight to %ounsel
N Triggered by direct or surreptitious police questioning of a
defendant who without the lawyer present or a waiver
N +as counsel present, -f not, did defendant waive,
:. %iranda *uleJStatements obtained as the result of
custodial interrogation are inadmissible in the
prosecution case)in)chief in the absence of /iranda
warnings and valid waiver.
N Dth Amendment 5rivilege Against Self)-ncrimination
N Triggered by %ustody O -nterrogation
N Gid suspect ma(e a (nowing and voluntary waiver, -f not,
statements violate /iranda.
;. Fruits of -lle'al ConductJStatements that comply
with the . tests above may still be tainted if they are
the 8but for9 consequences of a predicate
constitutional violationJli(e an unreasonable search
or seizure.
N Fruit of the 5oisonous Tree Goctrine
N Triggered by a but for lin( between a constitutional violation
and police obtaining the statement
N -s the statement a product of the prior violation, -f so, can the
government prove it is sufficiently attenuated from the poison
tree,
A. Actual Coercion! the ue Process 8oluntariness Standard
1. A statement obtained by police as the result of actual coercion that overbears the free will of the suspect is
inadmissible6 for any purpose.
a. Holuntariness standard is assessed based on the6 totality of the circumstances.
b. Factors of coercion include the defendant7s6
'1* Age, health, education, intelligence, gender, cultural bac(groundE
'"* location, duration and physical conditions of the interrogationE
'.* :umber and demeanor of police officers, suspect7s eperience with the criminal !ustice systemE
'0* deception and tric(ery
5olice deception and tric(ery during interrogation is !ust one of the factors to assess pursuant to the totality of the
circumstances test, and rarely in and of itself renders a statement involuntary.
#$A%P&#! An eleven year old confesses to a crime when confronted by a number of burly
policemen. There is a legitimate question as to whether this confession is truly 8voluntary.9 This
would unli(ely raise a voluntariness concern for an adult suspect.
c. %oercion can ta(e the form of physical abuse, psychological pressure, or threats of future harm for failing to
answer questions.
#$A%P&#6 Suspect is an inmate in prison, and is befriended by a fellow inmate who tells him he is
connected to the /afia. The new 8friend9 tells him he will ensure he is protected from other prisoners
who (now he is suspected of molesting and murdering a young child. ;ut in echange, the 8friend9 says,
8you first have to tell me if you did it.9 Suspect confesses to the crime. The inmate 8friend9 is in fact a
snitch on the F;- payroll that passes the information to the F;-. This confession is involuntary because it
was coerced by threat of future harm if the suspect did not provide the confession.
d. 2emember, no impeachment eception for an actually coerced statement, and no requirement to be in
custody when the statement is made.
". 8iolation of the Sixth Amendment *i'ht to Counsel! the %assiah *ule
a. The initiation of formal adversarial process 'formal charge, indictment, arraignment, or preliminary hearing*
triggers the Sith Amendment right to the assistance of counsel during all critical stages of the adversarial
process.
'1* A 8critical state9 includes6 deliberate elicitation of statements by the police, physical line)ups, prelim
hearings and trial.
it is useful to distinguish a 8suspect9 from a 8defendant.9 A suspect is an individual suspected by the police of
having committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial
processJwhen he is formally charged and the prosecutor is now involved in the case. A 8suspect9 has
no Sith Amendment protectionE a 8defendant9 does, but only for the crime he is a defendant for. -n
other words, the Sith Amendment is 8offense specific.9
'"* -n /assiah, the Supreme %ourt held that the 8deliberate elicitation9 of a pre)trial statement from a
defendant is a 8critical stage9 triggering the right to assistance of counsel.
'.* Geliberate elicitation is6 epress or implied questioning by police of a defendant.
b. Therefore, any statements obtained by the police from a defendant related to the crime he is formally charged
with is inadmissible unless6
'1* &is lawyer was present during the questionE
'"* &e eecuted a (nowing and voluntary waiver of assistance of counsel
#$A%P&#6 Gefendant is indicted and arraigned for the murder of a child. +hile driving defendant
from one city to another, Getective <eaming says to him, 8- (now you want the victim7s family to be
able to give their child a %hristian burial. - am not as(ing you for an answerE - !ust want you to thin(
about that as the snow starts to fall.9 About .F minutes later, Gefendant tells <eaming where the
body is and leads him there. This confession is inadmissible. <eaming7s statement, although not a
direct question, was an implied question. ;ecause the indictment and arraignment both initiate
formal adversarial process, Gefendant was protected by the Sith Amendment 2ight to %ounsel.
;ecause counsel was not present and <eaming never obtained a waiver, use of the confession
violates the Sith Amendment.
c. A violation of the Sith Amendment does not require6 the defendant (now he is being questioned by
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government agent. Therefore, surreptitious questioning triggers /assiah rule.
d. Lovernment agents are permitted to approach the defendant to elicit a waiver of his Sith Amendment
assistance of counsel during questioning, and the waiver is effective6 so long as the defendant (new the right
he was giving up and did so voluntarily.
e. The Sith Amendment right to counsel is offense)specific.
'1* -t only shields the defendant from questioning on the offense he has been charged with.
'"* 5olice may continue to question6 on other offenses, even those, which are factually related to the
charged offense, without implicating Sith Amendment.
#$A%P&#6 5olice were allowed to question a defendant without counsel about the murders of a
homeowner and his daughter, even after the defendant had been indicted on burglary charges 'and
represented by counsel on these charges* relating to the victims7 home =#e$as v. %o&&, D." $.S.
1B" '"FF1*C.
2emember, !ust because questioning does not implicate the Sith Amendment right, it may still
implicate /iranda or the Gue 5rocess voluntariness rule. Analyze each of these protections
independently.
.. The Dth Amendment 5rivilege Against Self)-ncrimination '5AS-*6
a. The Fifth Amendment states that 8no person shall be compelled in a criminal case to be a witness against
himself.9
b. This means any person called to testify in any proceeding 'trial, grand !ury, preliminary hearing, administrative
hearing, legislative hearing, court)martial, etc.* has an absolute privilege to refuse to testify when6
'1* &e has a6 real and substantial fear that his testimony will result in self)incrimination or contribute to his
criminal conviction in $.S.
'"* &e asserts the privilege by refusing to testify.
The 5AS- applies only to 8testimonial9 evidence, and does not permit a witness to refuse to provide other
evidence even if it is clearly incriminating 'blood, hair, G:A, fingerprints, participation in a lineup,
handwriting samples, etc.*.
c. The witness waives the 5AS-6 simply by providing testimony. :o requirement to inform defendant that he has
right to refuse to testify.
d. The government can 8supplant9 the 5AS- 'thereby removing the fear of self)incrimination* by granting
immunity. There are two types of immunity6
'1* <se=Testimonial -mmunity! prohi+its the use of (itness6 testimony or any evidence derived from
that testimony a'ainst (itness
'a* This type of immunity full supplants the 5AS-, and permits the government to have the court force
the witness to testifyE
'b* $seKtestimonial immunity does not bar subsequent prosecution of the witness so long as the
evidence has no connection to the testimony.
'"* Transactional immunity! extremely +road and prohi+its any future prosecution of the (itness.
0. The %iranda *ule
a. ;ecause sub!ecting a suspect to custodial interrogation produces inherent coercion, the prosecution may not
use statements obtained as the result of questioning while in custody in the case)in)chief unless6 police
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neutralize this special inherent coercion by complying with /iranda warning and waiver requirement.
A valid /iranda waiver restores confidence that a suspect7s statements made during custodial interrogation are in
fact the product of free well and therefore not the product of inherent coercion because it 8neutralizes9 the
corrosive effect of custodial interrogation.
b. -n order to establish valid waiver6 the police must advise the suspect of the rights he is giving up.
c. These rights are6
'1* the right to remain silentE
'"* that anything said can be used against him in courtE
'.* the right to the presence of an attorneyE and
'0* if he cannot afford an attorney, one will be provided for him
d. The /iranda warning and waiver requirement is triggered by6 custody and interrogation.
'1* %ustody is formal arrest, or a situation where a reasonable person in the suspect7s position would
believe6 their freedom has been deprived to a degree analogous to formal arrest
'a* %ustody requires an ob!ective indication that police are initiating criminal process, for eample
being ta(en to the station for boo(ing.
'b* The sub!ective intentions of the officer are not controllingJcustody is assessed ob!ectively from the
perspective of the suspect.
'c* A Terry Stop is not custody because it is defined as6 brief investigatory seizure.
'd* Therefore, police may6 question an individual sub!ected to Terry stop without triggering /iranda
rule.
:ot all seizures are custody, but all custody is a seizure. The line between a non)custody seizure and a
seizure that is custody is normally identified by ob!ective indications that the seizure is not 8brief9, but
instead the suspect is li(ely going to end up at the station for boo(ing. ;ut remember, an encounter can
escalate from a non)custody seizure into a seizure that is custody 'which happens whenever the
suspect is arrested*. At this point, the /iranda rule comes into effect.
'"* -nterrogation is6 direct questioning or words or actions a reasonable officer would anticipate would li(ely
to eliciting an incriminating response.
'a* -nterro'ation focuses on >the reasona+le officer?, unli5e custody, which focuses on 8the
reasonable suspect.9
-f the police are aware of a particular vulnerability of the suspect and eploit that vulnerability, that fact is
imputed to the 8reasonable officer9 used to assess whether the statements or conduct used by the
actual police qualify as questioning.
'b* Spontaneous or volunteered statements do not implicate the /iranda rule, even if they are made by
a suspect while in custody, because6 they are not the product of questioning.
e. &imitations of and #xceptions to the %iranda *ule
'1* A /iranda violation does not result in the eclusion of other evidence derived from the inadmissible
statement, because a /iranda violation does not trigger the fruit of the poisonous tree doctrine.
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01P2T0#T-CA&
The police go to the home of Ioe and <inda after getting a domestic disturbance complaint. +hen they arrive, they find
Ioe and <inda outside. <inda tells police Ioe threatened to shoot her with his pistol. They place Ioe under arrest and wal(
him to the police cruiser. +hile he is sitting in the bac(, a roo(ie officer says, 8why don7t you !ust tell us where you hid that
pistol to ma(e this easier on yourself.9 Ioe responds, 8- !ust want to get this over withE the pistol is hidden under my car.9
5olice recover the pistol. -s Ioe7s confession admissible, &ow about the pistol,
$"e is c)ear)# i c+st"d# as he !as ()aced i (")ice car% ad he is
iterr"&ated ,# the (")ice "fficer re&ardi& his (ist"). C+st"d# ad
iterr"&ati"% t"&ether% tri&&er Mirada !ari&. H"!e*er% $"e !as "t
Miradi.ed s" his c"fessi" is " iadmissi,)e. H"!e*er% his &+ is
admissi,)e ,eca+se Mirada *i")ati"s d" "t tri&&er the e0c)+si"ar# r+)e
,eca+se the# are "t a ("is" tree.
'"* 5ublic Safety. +hen the primary purpose of the police questioning is to protect themselves or the public
from6 an imminent danger of serious harm, the suspect7s answers are admissible even without a /iranda
warnings.
'.* Statements obtained from the defendant in violation of /iranda rights are admissible6 to impeach the
defendant7s testimony at trial.
A defendant cannot hide behind a /iranda violation to lie under oath.
f. )aiver of %iranda *i'hts
'1* -n order to neutralize the inherent coercion of custodial interrogation, the prosecution must prove6 the
suspect eecuted a (nowing and voluntary waiver of /iranda rights
'a* The waiver must indicate the suspect understood the rights, and engaged in a course of conduct
indicating a voluntary waiver6
1* This is normally established by having the suspect state orally or in writing she understands the rights
and is willing to answer questions without a lawyerE
"* The waiver need not be in writing, but the prosecution must prove the suspect ac(nowledged
her understanding of the rights.
'b* The defendant need not be warned of6 the possible charges he is waving.
'c* +aiver may never be presumed from6 a defendant7s silence. The defendant has to ac(nowledge
that she understands the waiver.
1* &owever, because silence does not invo(e the /iranda right, police are permitted to
repeatedly as( a silent suspect for a waiver.
'd* A valid /iranda waiver is strong evidence that the subsequent confession is actually voluntary,
although it is possible to comply with /iranda and still violate the due process voluntariness test.
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01P2T0#T-CA&
Iohn is suspected by police of murdering a child. ;ased on a warrant for his arrest, Iohn is apprehended and brought to
the police station for interrogation. Getective Smith advises Iohn of his /iranda rights, and Iohn signs a waiver form
indicating he is willing to spea( with the police. Iohn denies the murder over a three)hour interrogation. Frustrated,
Getective Smith loses his temper and slams Iohn against the wall violently enough to (noc( Iohn to his (nees and cut
the bac( of his head. Smith says, 8- (now you (illed that little girl. -f you don7t7 admit it, - am going to beat you to a pulpP9
Iohn then confesses. -s the confession admissible,
He si&ed the !ai*er "f his Mirada ri&hts% ,+t the c"erci*e ad *i")et
c"fessi" tactics *i")ate d+e (r"cess. The c"fessi" is iadmissi,)e
+der the d+e (r"cess *")+tariess test.
g. Special *ules urin' -nterro'ations
'1* /iranda warnings need not be repeated6 because of a short brea( during the interrogation or because a
new officer begins questioning.
'"* -f a suspect ma(es an unequivocal request for an attorney6 or that she wishes to remain silent, A<<
interrogation must cease immediately.
'.* These requests can be made6 at any point during the interrogation
'0* The effect of invocation on police ability to 8re)initiate9 questioning by approaching the suspect and
requesting a new /iranda waiver will turn on the /iranda right the suspect invo(ed6
'a* -nvo(ing the right to silence6 by cutting off questioning, police must scrupulously honor this
invocation for a while.
To resume questioning6
1* 5olice must allow for6 a significant period of time to elapse
"* #btain6 obtain a new /iranda waiver
There is not set amount of time police must wait before re)initiating questioning with a suspect who
invo(es the right to silence. Factors that indicate they 8scrupulously honored9 the invocation
include passage of a significant amount of time, different location, different officers, different
sub!ect matter.
'b* -nvo(ing the /iranda right to counsel. -f a suspect invo(es the /iranda right to counsel, questioning
must cease immediately, and may not be re)initiated unless6
1* An attorney is present during the interrogation, or
"* the defendant reinitiates the contact with police and eecutes /iranda waiver
.* Two wee( rule after the suspect is returned to his normal environment police may re)initiate
questioning, but must first obtain a fresh /iranda waiver
'c* -FF#*#3C# F*2% %ASS-A06 A /iranda invocation of either right is not offense specific. That
means that these 8re)initiation9 rules apply6 to any offense even if it is different officer from different
!urisdiction.
This is a critical distinction between the /iranda right to counsel and the Sith Amendment right to counsel.
;ecause it is non)offense specific, the /iranda right is more protective.
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'D* 3ffect of a /iranda violation on subsequent confessions.
'a* ;ecause a /iranda violation does not trigger the fruit of the poisonous tree doctrine, a statement
made in violation of /iranda6 normally does not taint a subsequent statement made after a valid
/iranda waiver even if it is the same information.
'b* &owever, police may not employ a 8question first, warn later9 tactic to deliberately bypass the effect
of /iranda warnings.
1* if the police deliberately elicit a confession from a suspect during custodial interrogation
without obtaining a valid /iranda waiver, and then elicit a /iranda waiver in the middle of
questioning or immediately following questioning and have the suspect repeat the confession6
the waiver is invalid and both confessions are inadmissible in prosecution7s case in chief.
D. Fruit of the Poisonous Tree
a. -f a 8but for9 connection eits between a prior constitutional violation 'normally an unreasonable arrest* and a
suspect7s statement, the statement may be inadmissible fruit of a poisonous tree unless the government can
prove an eception, even if it complies with the rules above.
'1* Attenuation is the most common eception asserted to use a statement resulting from a 8but for9 lin( to a
constitutional violation 'poison tree*. 3ffective attenuation will depend on how 8potent9 the poison was6
the more flagrant the constitutional violation, the harder it is to attenuate.
'a* -f an arrest is unreasonable because police failed to obtain a required warrant, but nonetheless had
probable cause, that will normally be dissipated by a valid /iranda waiver6 this will normally be
dissipated by a valid /iranda waiver, so long as the statement was not elicited immediately after
arrest.
'b* -f an arrest is unreasonable because police did not even have probable cause, the taint is much
more difficult to dissipate, and will normally require6 more than !ust a /iranda waiver for
attenuation.
#$A%P&#6 5olice have probable cause to arrest Ioe, and enter his house without a warrant to
ta(e him into custody. Two hours later at the police station, a detective who was not at the scene
of arrest obtains a /iranda waiver from Ioe. Ioe confesses to the crime during interrogation.
This /iranda waiver will li(ely be sufficient to prove the taint of the warrantless arrest was
dissipated or purged. Although police did not have a warrant, they did have probable cause and
did not elicit the confession immediately after the arrest.
#$A%P&#6 5olice have a hunch Ioe is a terrorist planning a suicide bombing at a local
shopping mall. 5olice see Ioe wal(ing down the street, arrest him, and bring him to the police
station. Two hours later at the police station, a detective who was not at the scene of arrest
obtains a /iranda waiver from Ioe. Ioe confesses to the bomb plot during interrogation. This
/iranda waiver will li(ely be insufficient to prove the taint of the unlawful arrest was dissipated
or purged. Although a few hours passed and a different officer conducted the interrogation, the
arrest without probable cause creates a more powerful taint and requires more for dissipation.
I7. IDENTIFICATIONS
A. -dentifications of a efendant
1. The ue Process Standard! Applies to A<< types of identifications, at A<< stages of the investigatory and
prosecutorial process.
a. -f a defendant can prove that an identification procedure used by the government was so unnecessarily
suggestive that it created an irreparable ris( of mista(en identification6 the procedure violates due process and
the -G cannot be used at trial
'1* The 8touchstone9 of this due process test is reliability, which requires defendant to prove both6
.a/ That the procedures used (ere! unnecessarily su''estive
.+/ That the su''estiveness! produced an unrelia+le identification.
#$A%P&#6 A witness gives a description of a mugger. 5olice show her a single photo. This
procedure is unnecessarily suggestive because the police could have easily shown her a photo
array. This alone is insufficient to violate due process. The defendant must show that this
unnecessarily suggestive method produced an unreliable identification, which will turn on a totality
analysis of a number of factors.
b. The following factors are considered to assess whether an unnecessarily suggestive procedure results in an
unreliable identification6
'1* The opportunity to view the criminal at the sceneE
'"* The witness7s degree of attentionE
'.* The accuracy of the witness7s descriptionE
'0* The degree of certainty of the witnessE and
'D* The time interval between the crime and the identification 'the longer the interval, the less reliable*.
c. $se of inherently suggestive procedures because doing so is necessary under the circumstances does not
violate due process.
#$A%P&#6 5olice are investigating a brutal murder of one homeowner and the attempted murder of his
wife. The wife is in the hospital close to death. 5olice arrest a suspect who matches the description of the
assailant. They bring the suspect to the victim7s hospital room in handcuffs to give her an opportunity to
identify him, which she does. ;ecause only one suspect was presented to the victim in handcuffs and in
police custody, this procedure was highly suggestive. &owever, because the victim was the only witness
who could positively identify the assailant, and because it was highly possible she might die, use of this
8necessarily suggestive9 procedure did not violate due process.
d. +hen an out)of)court identification is ecluded because it violates due process6 a subsequent in)court
identification will almost always be ecluded as fruit of the poisonous tree.
". The *i'ht to Counsel6 Applies only to corporeal identifications 'human* and only after the initiation of formal adversarial
process 'when the suspect becomes the defendant*.
a. ;ecause the Supreme %ourt has held an out of court corporeal identification procedure is a 8critical stage9 in
the adversarial process6 defendant may not be sub!ected to that procedure without counsel present or
voluntary, (nowing waiver of the right to counsel.
-t does not matter why the defense lawyer is not present at the out of court identification. 3ven if police act in total
good faith, and the lawyer is absent because of his how negligence, conducting the lineup without his 34A/
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presence violates the Sith Amendment.
b. -f police conduct a corporeal lineup in violation of the Sith Amendment right to counsel6
'1* The results of the lineup 'the identification* are per se inadmissible at trial.
'"* The witness will be prohibited from ma(ing a subsequent in court identification of the defendant unless
the prosecution can prove6 by clear and convincing evidence, that the in)court identification is
independent from the out)of)court identification.
The more inherently suggestive the out of court identification, the more difficult it is to prove by clear and
convincing evidence it did not 8taint9 the subsequent in court identification. <oo( to the same 8reliability9
factors for due process to assess whether the in court identification is independent from the out of court
identification.
01P2T0#T-CA&
%arlos is arraigned on a charge of robbery and placed in a lineup. Two witnesses described the suspected robber as a
DQ)foot)tall &ispanic male with blac( hair and 8tan9, and %arlos was the only &ispanic in the lineup while four others were
tanned males of northern 3uropean descent with blac( hair, and all are D7A9RB7. #ne witness only had a 8brief9 loo( at the
suspect at night, and did not otherwise (now him. The other said he recognized the robber as an old high school friend
named %arlos. %arlos7 lawyer is late for the lineup and the police go ahead without her because they don7t want to
inconvenience the witnesses. ;oth pic( %arlos from the lineup. +ill they be able to testify that they identified %arlos in the
lineup when called as witnesses at trial, +hat about ma(ing an in court identification of %arlos,
Car)"s is arrai&ed% !hich meas he has si0th amedmet ri&ht t" c"+se).
N"t +ecessari)# s+&&esti*e t" ,e a d+e (r"cess (r",)em. The res+)t "f the
)ie+( is "t admissi,)e at tria). The 1+esti" is !hether the !itesses ca
idetif# him i c"+rt. The !itess !h" -e! Car)"s fr"m hi&h sch"") !"+)d ,e
a,)e t" idetif# him i c"+rt d+e t" ide(edet -"!)ed&e ,+t either
!itess ca c)aim t" ha*e idetified Car)"s fr"m the )ie8+(.
34A/
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BAR E6AM APPLICATION
Muestion .
5olice were investigating the sale of cocaine in a certain neighborhood. ;ased on a tip from a reliable informant, Gefendant
became a suspect in the investigation. The police set up a controlled buy of cocaine from Gefendant, using the same
informant. After the controlled buy, the police obtained an arrest warrant and arrested Gefendant, but did not advise him of
his /iranda rights. At the police station prior to his arraignment, a police officer as(ed Gefendant why the police should
believe Gefendant, a drug dealer. +ithout ever eecuting a /iranda waiver and without an attorney present, Gefendant
responded, 8- might not be the most honest guy in the world, but - do not sell cocaine.9 #n cross)eamination at trial, the
prosecutor as(ed Gefendant whether he had a reputation for honesty. Gefendant responded, 8Absolutely, everybody (nows
that - always tell the truth.9 The prosecutor then offered to admit into evidence Gefendant7s statement to police that he wasn7t
the most honest person. Gefendant7s attorney ob!ected to the introduction of this statement.
&ow should the court rule,
A* The court should sustain the motion because Gefendant had not waived his /iranda rights.
;* The court should sustain the motion because Gefendant7s Sith Amendment right to counsel was violated during the
interrogation.
C/ The court should deny the motion +ecause it (as proper to use efendant6s statement for impeachment
purposes.
G* The court should deny the motion because Gefendant volunteered the statement.
BAR E6AM APPLICATION
Muestion 0
An armed robbery occurred at a liquor store. The robber had long hair and a distinctive tattoo on his left arm. +hen police
interviewed the cler( of the liquor store, they learned that the cler( (new the name and address of the robber, who was a
childhood friend of the robber. 5olice went to the home of the robber 'hereinafter 8Gefendant9* and placed him under arrest.
Gue to the cler(7s unavailability 'because he went out of town on vacation*, police were not able to hold a lineup until after a
grand !ury indicted Gefendant. +hen the cler( returned from his vacation, police held a lineup with Gefendant and five other
men who loo(ed li(e Gefendant, but none of the other men in the lineup had a tattoo on the left arm. 5olice failed to inform
Gefendant7s attorney of the lineup, so she was not present at the lineup. The cler( immediately identified Gefendant as the
robber. At trial, the cler( testified that he (new Gefendant since childhood, (new immediately that he was the robber, and
identified Gefendant as the robber. A !ury too( three minutes to find Gefendant guilty.
#n appeal, how should an appellate court rule,
A/ The appellate court should affirm the conviction +ecause the in court - (as properly admitted.
;* The appellate court should reverse the conviction because the in)court identification of Gefendant at trial should not
have been admitted into evidence.
%* The appellate court should reverse the conviction because the lineup was unnecessarily suggestive and the in court
identification was therefore tainted.
G* The appellate court should reverse the conviction because the holding of the lineup without Gefendant7s attorney
being present violated Gefendant7s Sith Amendment right to counsel.
7. PRE8TRIAL PROCEDURES9 CHRONOLO:Y FROM ARREST TO TRIAL
A. Grand @ury -ndictment
1. The indictment is a written accusation stating charges against the defendant issued by a grand !ury after it reviews
the prosecution7s evidence.
a. A grand !ury not an adversarial hearing, it is an investigatory tool. Therefore6
'1* The 8target9 of the investigation has no right to be present, and no right to assistance of counsel if called
to testify.
'"* The prosecution presents6 evidence to the grand !ury with no confrontation process.
'.* The prosecution has6 no obligation to inform the !ury about clearly eculpatory evidence
b. /iranda warnings need not be given to6 even for potential defendants called to testify because grand !ury is
not custody.
'1* &owever, the target of the investigation and all other witness may assert the privilege against self)
incrimination.
B. Bail 0earin'! The defendant is entitled to6 individualized hearing to determine whether bail should be granted or denied.
1. The purpose of bail is to secure the presence of the accused at trial.
". There is no constitutional right to bail. -f bail will be ineffective to secure the accused at trial, it may be denied.
.. -f bail is appropriate, it may not be ecessive.
C. Plea Bar'ainin'
1. A plea of guilty is 8the strongest form of proof (nown to the law.9 A defendant may be convicted on his plea only.
a. The court must determine that the plea is voluntary and intelligent. To be intelligent, the accused must be
informed of the general nature of the offense he is pleading guilty to.
b. ;ecause a plea of guilty waives the right to trial by !ury, the right to confrontation and compulsory process, the
privilege against self)incrimination, and the presumption of innocence, the court must determine that the
waiver of these fundamental constitutional trial rights is intelligent and voluntary =/c%arthy v. $nited States,
.@0 $.S. 0D@ '1@B@*C.
". A defendant may plead guilty without admitting guilt, called an 8Alford9 plea. -n such cases, other evidence 'li(e police
reports* must be admitted to the record to support the court7s finding of guilt.
7I. PRE8TRIAL RI:HTS
A. The *i'ht to a Speedy Trial
1. A right to a speedy trial is guaranteed by6 Sith Amendment
". +hile most state statutes also include a speedy trial right6 the only remedy for a violation of the constitutional right
is dismissal with pre!udice.
.. The speedy trial cloc( begins running6 once a defendant is accused by formal charging or is arrested and held for
answer for a crime.
a. 5re)arrestKpre)charge delays are not considered in speedy trial analysis and there is no requirement to charge a
defendant immediately after report of a crime, although if pre)trial delays are totally un!ustified and result in
pre!udice they may violate due process.
0. The primary interests served by the speedy trial rule are accuracy and prevention of ecessive pre)trial stigma. The
test for violation considers the following factors6
a. <ength of delay
'1* :ormally a delay of6 more than year would trigger an inquiry
'"* Gefense requested delays, including motions, are ecluded from the duration calculation.
b. 2eason for delay
'1* A 8good9 reason is one that the prosecution has no control over.
'"* A 8bad9 reason is one that the prosecution could have avoided by due diligenceE
c. Gemand for speedy trial
'1* +hile this is not essential, failing to do so normally indicates6 the defendant did not consider the delay
pre!udicial
d. 5re!udice to the defendant
'1* The unreasonable delay normally must result in6 pre!udice to !ustify dismissal.
'"* There are three 8types9 of pre!udice, listed from least to most significant6
'a* Aniety
'b* #ppressive pretrial incarceration
'c* ;est case scenario for dismissal6 Gegradation of evidence compromising accuracy of trial
D. iscovery
a. -t violates due process for the prosecution to6 fail to disclose to accused evidence that is favorable and
material.
'1* FavorableJthe disclosure trigger6 &ave to give to the defense
'a* -f defense ma(es a discovery request, any evidence that would tend to help the defense is
favorableE
'b* -f defense fails to ma(e a discovery request, only evidence that is clearly eculpatory is favorable.
'"* /aterialJthe remedy standard6 if the prosecution fails to disclose favorable evidence, a defendant is
entitled to a new trial 'or sentencing* if that evidence was also material.
'a* /aterial means6 That the evidence would have created a reasonable probability of a different
outcome.
'b* -n other words, had it been disclosed6 it would have created reasonable doubt.
b. The prosecution is not required to disclose this information to a criminal defendant prior to plea bargaining or
entering into a plea agreement with him.
c. Gestruction of evidence held by the government violates due process only where6 the defendant can show
bad faith. :egligence is not sufficient to violate due process.
For non)disclosure, we worry about material. -f destroyed, then have to show destruction in bad faith R only the G
could have benefited from the evidence.
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7II. :UARANTEES OF A FAIR TRIAL
A. The *i'ht to Counsel at Trial
1. The right to counsel attaches to all critical stages of the proceedings that affect the defendant7s right to a fair trial 'trial,
preliminary hearing, corporeal identifications, police questioning*.
". Absent waiver, a defendant may not be 8imprisoned for any offense, whether classified as petty, misdemeanor, or
felony9 unless6 he was represented by counsel.
a. This means the government must provide counsel to indigent defendants whose cases meet this definition.
b. :ote that the trigger for providing free counsel is6 actual result.
.. The right to counsel means the right to e''ective counsel. ;ecause courts presume that legal counsel is effective, it
is very difficult to prevail on an ineffective assistance of counsel claim.
a. A defendant see(ing a new trial based on a claim of -neffective Assistance of %ounsel must prove both6
'1* %ounsel was ineffective
'a* &er performance6 fell below a minimum standard of lawyer conduct.
'b* For eample6 sleeping in trial, failing to file a discovery request, failing to offer vital and clearly
eculpatory evidenceE and
'"* &ad the lawyer been effective6 it would have created reasonable probability of a different outcome
'.* -n other words6 an effective lawyer would have created reasonable doubt
#$A%P&#6 Assistance of counsel is effective even when the lawyer fails to present mitigating
evidence, fails to mount a case for life imprisonment, and waives final argument during the
sentencing phase of a death penalty proceeding.
B. @ury Trial
1. The right to a !ury trial attaches in any criminal proceeding where the defendant faces a potential sentence of6
longer than si months.
a. :ote that unli(e the right to counsel, the right to a !ury is triggered by potential result6 not actual result, if
defendant faces at least one charge of at least si months.
". %a5eup of the @ury
a. The @ury Pool!
'1* The defendant has a right to a !ury selected from a fair cross)section of the community, which means a
!ury pool that reflects6 a fair cross section of the ethnic and gender demographic of the community.
'"* -f the defendant can show that a distinct group was 8systematically ecluded9 from the !ury pool, he is
entitled to a new trial.
b. The Petit .actual trial/ @ury!
'1* There is no requirement to provide a fair cross section of the community on the actual trial !ury.
'"* &owever, the use of peremptory challenges to eclude prospective !urors based on minority race or
gender6 violates equal protection.
'a* Therefore, a party ma(ing a peremptory challenge of a prospective minority !uror will be required to
offer a 8race or gender neutral9 basis for the challenge, and if that basis is unpersuasive6 the
peremptory challenge will be denied because the only inference we can draw is that the real reason
you are using the challenge is race or gender
C. Confrontation
1. The Sith Amendment provides defendant with6 the right to confront witness and evidence against him.
". The right to confrontation is triggered only by6 testimonial evidence, which means statements made in contet
where the witness would epect the statement to be used in a criminal trial.
a. -f the witness is telling the police or a @11 operator (hat is happenin' in order to help them respond to an
ongoing emergency6
b. -f the witness is telling the police or a @11 operator (hat has happened as part of their investigation6 that is
testimonial in nature.
.. -f government provides testimonial evidence, confrontation is satisfied by sub!ecting the witness to 8adversarial
testing,9 which means6 the witness testimony is provided under oath sub!ect to cross eamination
a. +here the witness is called to testify at trial, this right is satisfied, even if the defendant does not cross)
eamine the witness.
b. +here the witnesses prior 8testimonial9 statements are offered as hearsay, it will violate the right to
confrontation unless the defendant had a prior opportunity to sub!ect the hearsay to adversarial testing, for
eample at a prior preliminary hearing.
2emember, because a Lrand Iury is not an adversarial proceeding, the 8target9 has no opportunity to
cross)eamine a witness at a Lrand Iury. Therefore admission of that witness7s testimony at trial
against the defendant violates the %onfrontation %lause.
#$A%P&#! a prior statement of a witness made during a preliminary hearing is offered against the
accused at trial pursuant to a hearsay eception because the witness in unavailable. This does not
violate the %onfrontation %lause because testimony at a preliminary hearing is under oath and sub!ect to
cross)eamination. Another prior statement from a witness who testified at the Lrand Iury that indicted
the accused is also offered as a hearsay eception because the witness in unavailable. This statement
violates the %onfrontation %lause, because although it was made under oath it was not sub!ect to cross)
eamination.
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7III. DOUBLE $EOPARDY
A. efinition! The double !eopardy clause is intended to prevent undue harassment and epense by eliminating the ris( of6
1. The Fifth Amendment provision 8... nor shall any person be sub!ect for the same offense to be twice put in !eopardy
of life or limb9 applies to the states through the Gue 5rocess %lause of the Fourteenth Amendment.
B. )hen @eopardy Attaches
1. +hen a defendant moves to dismiss a charge based on a violation of double !eopardy, she must establish she had
been in !eopardy for the6 same offense by the same sovereign previously.
;eing previously charged is insufficientE the defendant must prove !eopardy had 8attached9 previously6
a. -n a non)!ury trial, !eopardy attaches when the first witness is sworn and the court begins to hear evidence
b. -n a !ury trial, is in panel and sworn
+hen a grand !ury fails to indict a target or a charge is dismissed prior to the !eopardy attachment point, !eopardy
has never attached and that target may again be the sub!ect of a grand !ury investigation for the same offense
or the charge may be brought again.
C. Same 2ffense
1. Two crimes occurring out of the same transaction are considered the same offense, unless6
a. 3ach charge requires proof of6 a separate, criminal impulse.
b. 3ach charge requires proof of6 a separate factual element.
#$A%P&#! G is charged with three counts of violating a federal narcotics statute. The indictment alleges
that during one transaction, defendant sold oycontin to two purchasers. %ount - alleges sale to
purchaser 1 without a prescription in violation of Section - of the statute. %ount -- alleges sale without a
prescription to purchaser " without a prescription. %ount --- alleges sale to purchaser " without a ta
stamp for the same sale as %ount --. 3ach of these three counts is a 8separate9 offense for purposes of
double !eopardy. 3ach purchaser is a 8separate unit of prosecution9 even though the sales occurred
during the same transaction. The two counts arising from the sale of the same oycontin to purchaser "
are separate offenses because each requires proof of a different factual element in order to convict.
. Separate Soverei'nties octrine
1. The double !eopardy prohibition does not prevent dual prosecution by separate sovereigns. Therefore, a defendant
may6 be prosecuted for the same criminal conduct by a federal court, then a state court for the same offense, and
vice)versa.
#$A%P&#! /a!or :idal &assan is tried by court)martial 'a federal military court* at Fort &ood, Teas for the
murder for 1. victims during his :ovember D, "F1F rampage at Fort &ood. &e is convicted and sentenced to
life in prison. Assume the area where he committed the (illings is !oint federal and state !urisdiction. The state
of Teas now wants to prosecute him in order to see( the death penalty, and so does the $.S. Attorney for
that district. Teas may prosecute him for the same criminal conduct because Teas is a separate sovereignE
if the $.S. Attorney indicts him, the indictment will be dismissed on a double !eopardy motion.
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BAR E6AM APPLICATION
Muestion D
Hictim is (illed in a hit)and)run accident. Gefendant is identified in a police lineup. <ater that day Gefendant is appointed an
attorney and then indicted on a charge of manslaughter. Guring the course of the trial, Attorney learns that Gefendant may
have a low intelligence quotient '-.M.*. Gefendant is evaluatedE one test points to a mild intellectual disability, while another
test shows below average intelligence. Attorney does not ob!ect when the prosecution calls the witness who identified
defendant and has her testify about the out of court -G. :or does attorney raise Gefendant7s -.M. during trial or as a mitigating
circumstance during sentencing, and eplains in a post)trial affidavit that he did not thin( it would ma(e any difference.
Gefendant is found guilty and is sentenced to life in prison. Gefendant fires Attorney and hires <awyer. <awyer files an
appeal, arguing that admitting the out of court identification in Gefendant7s trial violated his Sith Amendment right to
counsel. <awyer also see(s reversal based on a claim of ineffective assistance of counsel.
A* #n the right to counsel claim only.
B/ 2n the ineffective assistance of counsel claim only, provided there is a reasona+le pro+a+ility that the verdict
(ould have +een not 'uilty had counsel +een effective.
%* #n both the right to counsel and the ineffective assistance of counsel claims.
G* #n neither the right to counsel nor the ineffective assistance of counsel claim, provided there is a reasonable
possibility that the verdict would have been not guilty had counsel been effective.
BAR E6AM APPLICATION
Muestion B
Gefendant is arrested for prostitution, and charged with two misdemeanor counts of prostitution. The maimum penalty for
prostitution in this !urisdiction is a SDFF fine, si months in prison, or both. Gefendant pleads not guilty and requests a !ury trial
and to be represented by an attorney. The !udge denies both requests. The !udge finds Gefendant guilty and sentences her to
one month in !ail. Gefendant retains an attorney for an appeal, contending that her constitutional rights have been violated.
#n appeal, how should the appellate court rule,
A* The appellate court should rule in favor of Gefendant, because she had the right to counsel as she faced the possibility
of a prison sentence.
B/ The appellate court should rule in favor of efendant, +ecause she (as denied her constitutional ri'ht to
counsel.
%* The appellate court should rule in favor of Gefendant, because she was denied the right to a !ury trial.
G* The appellate court should rule in favor of Gefendant, because she was denied the right to counsel and the right to a
!ury trial.