The Exclusionary Sanction

1. Defendant trying suppress must show a. Any illegality sufficient to trigger 4th, 5th, 6th, 14th b. Proper standing c. The evidence was obtained from the illegality 2. Exclusionary sanction applies to a. Evidence directly derived from the violation - statements b. Evidence from the exploitation of the illegality Indirect i. Test- based on the degree of attenuation and the totality of the circumstances1. Time interval between illegality and evidnece 2. Intervening events 3. Purpose/flagrancy of the violation ii. Exceptions1. Taint is dissipated thanks to sufficient attenuation (see above) 2. Independent Source Rule- evidence obtained by police after Ds rights violated but not as a consequence of that violation- would have had a legal source a. Warrant was in the process of being obtained based on probable cause when illegal search occurred 3. Watch for live witness- U.S. v. Ceccolini relunctant to exclude live testimony 4. Impeachment of Defendant 5. Inevitable discovery - admissible in court if it can be established, by a preponderance of the evidence, that normal police investigation would have inevitably led to the discovery of the evidence. 3. Purpose a. Act as a deterrant for bad police conduct b. Give constitutional protections some teeth

The Fourth Amendment

Do the Protections of the Fourth Amendment apply? 1. Is there governmental conduct? a. Government agent or

b. Private person behaving in a certain way- look at i. Degree of government involvement/acquiescence ii. Purpose of the search criminal? 2. Is that conduct a search? intrusion into person, house, papers, effects a. Is there a demonstrated expectation of privacy? look to attempts made to safeguard privacy b. Is that an expectation we as a society are prepared to recognize? c. Is there governmental conduct that impedes on that expectation? d. Examples i. Expectation of Privacy 1. Home- highly protected, limited tolerance 2. Curtilage- more protected, but may be a risk assumed by putting things in public if they can be seen from a vantage point to the rest of the public- look to a. Immediately surrounding home b. Closely related to structure c. Nature of the use of the land personal? 3. Hotel room/overnight guest 4. Tactile manipulate of luggage 5. GPS on a car ii. No Expectation of Privacy 1. Open Fields- no expectation of privacy, no matter what you do a. Dwellings could change this the barn 2. Numbers called- nope, shared with telephone company 3. Plain view items- assumption of the risk when exposed to the public 4. Trash on the curb 5. Public Dog sniffing- limited invasion, can provide probable cause 6. Anything that is merely a short cut for the visual sense a. Aerial camera b. Beeper placed on car c. Augmentation of sensory faculties i. The more high tech, the more intrusive the device, the less likely its cool 3. If No to either no fourth amendment protection So, the Fourth Amendment Applies? 1.

Was there Probable Cause?

a. Quantity of specific facts and circumstances i. NO HUNCHES ALLOWED

1. Inferences based on police office experiences are probable okay ii. Is an informant the source? 1. Credibility of information a. Previous work, implication of sel in activity, indepdent corroboration 2. Basis of knowledge a. Speaking from personal knowledge, enough detail to suggest personal knowledge, independent corroboration 3. Totality of the circusmtacnes 0- some require both b. Within the police officers knowledge at the time c. That would warrant a reasonable person d. To conclude the individual in question i. Committed a crime or ii. Has specific items related ti criminal activity at a specific place 2. NO PROBABLE CAUSE - is there anything else? NONE OF THESE NEED WARRANTS a. Reasonable Suspicion- Based on totality of the circumstances articulable facts giving rise to founded reasonable suspicion i. Reasonable suspicion that crime about to be committed- brief public detention of the person on the scene 1. No movement allowed ii. Reasonable suspicion that person is armed and dangerous- quick exterior pat down feelting for weapons 1. Cant go beyond this 2. Factors a. Fear of bodily harm b. Indications of weapons possession c. Reason to belivehed be inclinded to hurt d. Acting threatening e. Flight not enogh in PA iii. Is it a traffic stop? Based on reasonable suspicion 1. Brief and public otherwise converted to detention iv. Considerations to balance 1. Governmental interest a. Public/officer safety b. Think of escalating interests at the border- may be tolerated more c. Infringement of individual liberty? How extensive is it? b. Is there a particularly compelling government interests to get away with more invasion with less cause?

i. Sobriety checkpoints- aka programmatic stopindividual liberty balanced by being random or cheking EVERYONE and with limited officer discretion and with limited intrusion 1. Must have a public safety purpose no just criminality 2. Must use reasonable means 3. No reasonable suspicion needed ii. Non-progammatic stop need reasonable suspicion or probable cause c. Boarder Searches- detainment of a traveler at the boarder is allowed where i. Elements 1. Reasonable suspicion 2. From totality of circusmtances of travel and trip 3. That theye smugguling ii. Government vs. individual liberty- government more likely to trump iii. Fixed interior checkpoints 1. These are seizures, but are okay so long as they are a. Routine b. Public c. Minimally intrusive d. No cop discretion 2. Brief questioning is okay 3. Less okay a. Substantial privacy invasion b. Subject to police discretion d. Administrative search- maybe need warrant for some health code inspectiosn i. What is the primary impetus of the search 1. Criminal prosection, public interests, according the police procedures, maintain community healt ii. If Administrative, is it a reasonable search? 1. Government need vs. level of intrustion 2. Is the search of a heavily regulated industry? a. Search to further regulatoryscheme? b. Constitutionally adequate substitute for warrant? i. Advising the owner that search being made pursuant to the land ii. Limit officer discretion iii. Discovery of criminal evidence here is not suppress e. Inventory Searches- incidental administrative steps following arrest/pending incarceration i. Must be according to preestabliehd administrative guidelines with no officer discretion

ii. Ex. Verify ID, limit police risks, inhibit theft or careless handling of articles, preventself injury f. Consent i. Voluntary consent provided to police to continue with search unbound by fourth amendment Totality of the circumstaces 1. Voluntariness is the only requirement - Whether a reasonable person in the suspects position would have felt free to declaim the officers request a. Factors i. Of the suspect- age, intelligence, level of eduction emeotional state 1. Knowledge of right- not determinative but helps ii. Police conduct- threates, pressure, intimidation, harassment, location, informing of right to refuse, time, place, duration of detainment, ii. Third party waiver is valid where third party has common access or control over the property co-possessors, occupant or tenants 1. Actual authority or apparent authority is enough to be valud a. Facts known to officer warrant a man of reasonable ncaution to conclude the coinsening party had authority on the premises b. Deferential to good faith mistakes c. Just cause you get consent to the house doesnt mean you have consent to containers not shared iii. Can be limited in scope by person

3. YES PROBABLE CAUSE- Is there a valid Warrant?

a. Issued by a neutral and detached magistrate? b. Issued by an adequate showing of probable cause supported by oarth or affirmation c. Describe with particularity i. The place to be searched sufficiently precise so that the officer executing can with reasonable effort ascertain and identify the place ii. The items to be seized NOT TOO GENERIC d. Warrant, but not valid- Does it fall underthe Good Faith Exception? i. Did an officer reasonably rely on it? 1. Noa. False or reckless tatement on warrant

b. Bad judge c. Facial deficieny in warrant i. No probable cause ii. Filaure to meet particularity requirement? ii. Was it valid when issued? iii. Was it later found to be defective? e. Yes, Valid Warrant- Was it reasonable as executed? i. Knock and Annouce? 1. Reasonable suspicion 2. Knowing and announcing under these circumstances would be 3. Dangerous or 4. Futile or 5. Inhibibity of effective investigation of a crime ii. Service of warrant? Must be provided prior to the search, not after 1. Was it required? 2. Does it affect admissibility a. Substantial or intentional violation or b. Complaining defendant was prejudice iii. Destruction of property when entering? 1. Higher degree of necessity required where property destroyed 2. Excessive or unnecessary can violated fourth 3. Not clear how affects admissbaility iv. Delay in warrant execution? 1. Time limit on validitya. May not just be re-dated by magistrate without reshowing or probable cause 2. Was delay reasonable? a. Passage of time increase chance that probable cause was destroyed v. Night time Execution? 1. Generally must be authorized by magistrate? 2. May require probable cause for night execution a. Increase likelihood of contraband 3. Exclusion ? 4. NO WARRANT- Does it fall under a warrantless exception? see above for probable cause exceptions too! a. Emergency exception i. Searches that 1. Are conducted without a warrant 2. Upon demonstration that office reasonably believed

3. Delays to get a warrant 4. Would result in destruction of evidnec eor contraband sought a. Sufficient risk of loss of evidence or contraband b. Response to an emergency i. Threat to police officer ii. Danger to persons inside or outside home c. Hot pursuit of fleeing felon ii. Still need probable cause 1. Less strict in high pressure situations iii. Not enough that b. Automobile Searches i. Search incident to arrest (see below) ii. Right to search for weapons (See stop and frisk) iii. Vehical exception to search warrant1. Permitted where there is probable cause to belvie there is contraband or other evidendnec eof cimrinal actibvity in the vehicle. a. Doesnt matter if car is moved b. Extends to containers in the car limited by the size and nature of things sought AND container 2. Rational a. Impractical to get warrant b. Lesser intrustion to just search than get a warrant c. Less privacy interest in the care 3. PENNSYLVANIA Need a probable cause AND exigent circumstaqnces to search without warrant 4. P c. Search incident to arresti. Was there a valid arrest? (probable cause to arrest?) ii. May search 1. Disarm 2. Discover/prevent destruction of evidence iii. Scope 1. Search of the person 2. Search of the area within immediate reach of the person 3. Contemporaneous with a rrest 4. Protective sweeps where a. Articulable facts b. Taken together with rational inferences of fac c. Warrant a reasonable prudent officer

d. Belieing the arrest harbors an individual posing a danger to those on the scene e. Scope i. Closesta nd other space near place of arrest from which an attack could be immediately launched ii. Lasting no long thatn 1. Necessary to dispel reasonable suspicion of danger AND 2. Than it takes to complete the arrest and leave iv. Where there is a car involved1. Contemporaenous with arrest 2. May search a. Passenger compartment b. And contains 3. Scope- probable cause to believe a. Look for weapons b. Look for evidence- keep to areas where evidence of this crime is going on c. Once person is secured, no good look for another justificaiton Is there Standing to enforce the illegality? 1. To assert a defense according to the fourth amendment- must be the one whos fourth amendment rights were violated- must show the expectation of privacy violated belonged to him a. Privacy in cari. Passengers are generally SOL ii. Drivers but not owners are better off iii. Maybe if they had a bag or something that was searched iv. Still lesser privacy interest in car b. Privacy in premises- must look to persons use of the premises? i. Overight? ii. Own key? iii. Purposes on the property?- business? Temporary guest? iv. Merely allowed on premises? v. What was the connection to the property? vi. Period of time

Arrests and Seizures and Stops

1. Brief Consensual Encountera. No justification required b. Reasonable person would feel free to terminate the conversationa t any time 2. Arrests- The apprehending of one person in order to be fortherocomign to answer an alleged or suspected crime a. Elements i. Free to leave? ii. Likelihood of the present confinement accompanied by furture interests of freedom of movement b. Important to establish for search incident to arrest c. Requirements for arrest i. Need probable causeii. Warrants are not needed where a. In public b. With probable cause to believe subject to arrest 2. May not enter the suspect home to arrest him without the warrant a. Search warrant implied in arrest warrant 3. May not search for suspect in anothers home to arrest a suspect without a search warrant 4. Emergency exception to this- no warrant needed to arrest in homefactors a. Gravity of offesnes b. Threat to self or public safety c. Hot pursuit 3. Stop- sseizures of suspect to question or investigate wher e reasonable person would not have believed he wa free to leave a. If its not a stop, no justification is required b. If it is a stop, need reasonable suspicion that the person has or is going to commit a crime i. Articulable facts ii. Less than probable cause 4. Seizure- police activity constituting meaningful interferecnes with suspects possessory interests a. Things that can be seized with probable cause i. People ii. Items b. Items can be seize dwith officers have probable to believe items are seizable, and the officers are entitled to possession i. Stolen property ii. Fruits of criminal conduct

iii. Instrumentality used in commission of a crim iv. Contraband v. Evidence vi. Not exhaustive c. Seized items may not be search without a warrant i. Unless emergency supports ii. Unless incident to arrest (contemporaneous with arrest) 5. Plain viewa. Elements i. Incriminating character is immediabel apparent probable cause to believe item is seizable above list 1. If futher analysis si required, this may not meet the rquiement) ii. Officer was lawfully located in the place where in plain view iii. Lawful access to place where bject is stored b. This doesnt have to be accident- can leave things off the affidavit and intended to find them c. In order to seize outside the scope of the warrant i. Oyu must be where you were supposed to be according to the warrant ii. You seized according plain view requiremenst 6.

Statements Made During Interrogation

1. Was the statement voluntary? a. Based on the totality of the circumstances, essentially a free and unconstrained choice b. Elements of involuntary statement i. Coercive police conduct 1. Physical threats, injury, promises ii. That overcame the will of the suspect 1. Suspects characteristics- age, level of eduction, mental stability, sobriety, famility with CJS 2. Polices conduct- duraction, condition of detention, attitude of police towards him, deception, trheat, promises, deprivation of access to friends/family/nourishment, advisement of rights, mistreatment c. Burden of proof i. Prosecution ii. Preponderance of the evidence iii. Confession was voluntary 2. Was Miranda:

a. Necessary? i. Custody? 1. Arrest 2. Restraing on freedom equivalent to formal arrest a. Reasonable person not gelt at liberty to leave b. Factors i. Cut off from outside world ii. Police dominated atmosphere iii. Hostile and intimidating iv. Venue v. Informed under/not under arrest c. Not arrest i. Traffic stop ii. On the scene questioning iii. Volunteered statmenet ii. Interrogation? Questioning by law enforcement personel 1. Express OR 2. Any words/actions that a. Were designed to evoke a confession or b. Should have been reasonably forseen to elicit such a response i. Foreseeability1. Particular susceptibility of the defendant 2. Knowledge the police had of that susceptibility ii. Not forseeable- not interrogation 3. Not interrogationa. Non-police dominated atmosphere- third party discussion with person b. Routine background questions involved ins top or arrest not likely to elicit an incriminating response c. Typical field sobriety questions b. If Necessary, provided? i. Must tell of 1. Right to remain silent 2. Consequences of not remaining silent- can/will be used against you 3. Right to attorney 4. Right to free attorney 5. RIGHT NOW ii. No talismanic incantation required

c. If not provided- public emergency? i. Narrow exception based on concern for public safety 1. Typically volatile questions ii. Factors 1. Prompted by concern for public stafety 2. Pre-miranda questions are not investigatory/designed to elicit incriminating statement 3. Not routine matter of pre-miranda request iii. Actual officer intent is irrelevant d. If provided, invoked? i. Invocation of right to remain silent 1. Interrogation must stop 2. Not permenant 3. Not irrevocable 4. Police may readdress where a. Sufficient amount of time has passed- not harassment i. Show right were scrupulously honored b. Fresh warnings provided c. No harassment d. Change of location/subkect matter 5. May be waived where a. Shown second rights were waived 6. Burden on prosecution to show rights waived second timeprobably harder ii. Invocation of right to attorney? 1. Must be unambigiuous- reasonable cop in the circumstance would understand the statement to be a request for an attorney a. Not clear, should clarify, dont have to 2. Must stop until counsel is present 3. Suspect may re-initiate conversation a. Must be about the investigation- not any old thing, must be about desire to discuss investigation b. Police may not reinitiate where counsel requested 4. NOT- Offense specific invocation- May NOT question about different thing e. If provided, waived? i. Waiver must be 1. Knowing and intelligent a. Know of rights

b. Understand rights c. Understand consequences of waiver d. Look to suspects state i. Intelligence, sobriety etc ii. Doesnt need to know about outside facts(like attorney trying to get in unless so egregious violations 14th) iii. Dont need to know subject to waiver 2. Voluntary- like voluntariness above a. Free and deliberate choice ii. Burden1. Prosecution 2. Clear and convincing evidence 3. Defendant made choice of waiver express or implied 4. That choice was legally effective a. Voluntary and b. Intelligent and knowing 5. The following statement was made voluntarily f. If no i. Can be used for impeachment 3. Was there a Violation of the Right to Counsel? a. Violation where- Messiah i. Government is deliberately eliciting incriminating statements from suspect about a certain crime 1. Intent of the officer 2. Narrower than foreseeable Miranda standard ii. From the accused without counsel iii. After right to counsel attached fro that crime initiation of judicial proceedings 1. Indictment, information, arraignment prelim hearing 2. Crime specific b. If yes, there a waiver? i. Knowing intelligent voluntary c. If No, i. can use for impeachment! ii. Watch for poisonous fruit- suppressing the statement may be enough. unclear d. Was a snitch involved? i. Asking questions? Still applies ii. Listingin posts? Cool!

Under Cover Investigation

1. Entrapment- must distinguish between traps for the unwary innocent vs. traps for the unwary cirmina; a. Affirmative defense i. Def. must show inducement ii. Government must show predisposition 1. Previous crimes 2. Reasons for law enforment focus 3. Nature of enticement offered 4. Intial reluctant b. Approaches i. Subjective- focused on criminals predisposition ii. Pbjective- focused on governments conduct 1. Not use 2. May be so bad that violates the 14th 2. 5th- doesnt apply where statemesn were wholly voluntary a. If involuntary, see above th 3. 6 - doesnt apply until charges have been made 4. THE LAW DOES NOT PROTECTA GAINST MISPLACED TRUST

Eye Witness Identification

Line Up Identification protections 1. Assitance of Counsela. Must have attached b. Attorney must be present at the pre-trial line up i. Prevent intentional or accidental prejudice ii. Witness c. If not- line up must be suppressed d. Exceptions i. One the scene, 1-on-1 ID to bring victim to suspect ii. Emergency- wintess dying th 2. 14 Due process right to fair identification process a. Totality of the cirucmstances Must look at which the procedures was i. Unnecessarily suggestive likelihood of irreparable identification based on 1. Prejudicial nature of procedure AND 2. The necessity of the procedure

ii. Unreliable- likely to lead to mistaken Identification 1. Factors a. Opportunity of view at time of crime b. Witnesses degree of attention c. Accuracy or prior description d. Level of certainty at confrontation e. Time lapses between confrontation and even If the lineup is suppressed, defense must try to suppress the incourt statement! Government has the burden of showing there is no taint by clear and convincing evidence(same a wong son, same at miranda waiver) o Witnesses prior opportunity to observe o Existence of any discrepancy between preline up and defenednat description o ID by pircture? o Failreu to ID on prior occasion o Time lapse Judge decides- puts def. in tricky spot