4th Amendment

Effecting Arrest

Seizure/Stop

Arrest w/o
Warrant

(1) phys restr by PO, OR (2)

show of author & submission

Must have PC

Accousting

Prob Cause: Factors (indv to specific persons/places - Pringle): (1) Informant

(a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated),
(2) exp of PO, (3) Ds prior crim record, (4) info from W or Vic, (5) furtive
gestures or flight?, (6) nature of area, (7) common enterprise?

Rsb Art. Suspc armed/dang or contraband

PC develops that crim ab to be comm or did

Search & Seizure Rule:

defined
ask

Search: Person,
Place, House

Government actor intrudes on rsb expct of privacy

that society wld agree is private

Seizure

Whether state actor meaningfully interferes w/ indiv

possessory interest

defined

Public Actor or
Governmental
Conduct?

Private still Govt IF under authority of PO

Reasonable Exp of
Privacy & Society
Wld Believe So?

Standing

Sound of voice

handwriting

Paint on car

Garbage (not in
curtilage)

Held out to
public everyday

1) Probable
Cause

Live in place or
home (no own)

Dont own but may have rsb

expt of privacy (i.e. borr purse)

sometimes

no

Valid Search
Warrant?

Own premise
searched

yes

Passenger in
cars

Records held at bank

Look for meaningful connection

thats not fleeting

If dont claim own

car

if

AND

Dont claim property

searched

Emanating Odors (dog search if public & srch 4 contra)

Dunn Factors: (1) prox to house, (2) enclosed?, (3) nature/use of area, (4) steps to protect area

Open Fields &

Pub. Airspace:

Fair prob. that evid.

will be found in place
searched

Overnight
guests

New Tech: (1) whth in gen use, (2) revealing inside not knwn othwis (arg gen use & know)

Hearsay
permitted in
probable cause

Informant tip
permitted

but
states

Aguiler Test:

(1) Sufficient facts &

circum. to allow magis to
know how PO got info
AND

2) Particularity
items & place

3) Reviewed/app
by neutral mag

Factors: (1) Informant (a. basis of know, b.

reliab of infrm, c. self-verifying?, d. inform
corroborated of future behavior)?

In MD daytime is rule;
Fed exp made for night

4) Signed under
Oath

5) PC not stale/
old/out-dated

Serve in day, timely, knock/annc (avoid prop

damag, avoid violence, prevent unnec invasion)

(2) Police must vouch for

RELIAB and CREDIB of
informant (thr prev tips)
use TOT of CIRCUM
Executing W
all

Wait rsbl amt of time after K&A

If not valid, will PO

Good Faith
reliance save?

Good faith will overcome

defects with probable
cause or ptc req for
physical evidence

Magistrate is biased
or

Detain all (frisk = rsb sus of crim for non-subs)

Affidavit for W is so lacking in PC no rsb PO wld rely

Search only areas listed in warrant

Affidavit for W is so lacking in part no rsb PO wld rely

Search Incident
to Lawful
Arrest:

Automobile
Exception:

If arrest is unlawful
then search is unlawful

Just b/c car, AE except not

guar. intent b/c cars move

Arrest & search must

be contemp in time &
place

Automobile Exception
(when car has evidence):

Wingspan - person &

areas reached for
weapon or destroy
evidence

If taken out of car &

arsted NO UNLESS
can reach car for
weapon or dest evid

Can search ALL car (spaces &

trunk) less exp of privacy
(Carney)

Package or container
that RSB cld contain
item looking for if
owned by pass or
driver
PC can dev after stop

Hot Pursuit /
Evanescent
Evidence

Plain View

Consent

Stop & Frisk

PO must be legit
present when
he/she does
viewing of item
seized &
Immediately
apparent

Consent must be:

Terry Stop

Ev Evid

Hot Purs

BREIF deten for purp of

invest suspic conduct

Evan Evid:
evid that
might disap
if PO gets
warrant
(scrape
fingernails)

If PO are not
w/in 15 min
of fleeing
felon then
not w/in hot
purs

Whether lawfully
seeing (i.e. enter
house lawfully)

Saying have warrant,

negates consent but no
req on PO to explain

Must have PC to support S

Geographic Scope
Limitation

Seize only items listed in W & in plain view

PO or pros lied or mislead magis.

If non-valid W, 6
Exceptions to
Warrant
Requirement:

Inventory srch: prtct

prop, prtct claims of
fraud/theft, PO safety
Must follow pre-estb PO
procedures.

both

Voluntary
and

Intelligent

TP consent
2 own,
either can
consent.

2 own, both
pres & 1 does
not consent
then not

If consent, may limit scope

(Jimeno)

Standard =
reasonable
suspicion
Terry Frisk
Patdown check
for weap/contra

Standard =
reasonable
suspicion for
PO safety
(looks like
weapon or
contra)

If ok,
anything
entered from
home will be
admiss

Matlock Factors for TP Consent:

(1) mutual use, (2) joint access/control, (3) rsbl
recognition, (4) assumed risk
Police must act reasonably to determine.

Exclusionary Rule

Grand
Juries

Limitations

Fruit of Poisonous Tree

Not in
Civil

Not for violations

of knock &
announce rule

To Qual: Must
Violate C or Fd Stat.

Not in parole
hearings

No common enterprise of residence when W

is good on location w/ others (Ybarra)

Other guests:

Purpose: exclude evidence obt by PO by

exploiting unlawfully obtained evidence

Independent
Source

Wiretapping &
Eavesdropping
Confessions &
Miranda

th

14
Fundamental
Fairness
Shocks the
Conscience

Inevitable
Discovery

PC required for
all

Custodial
interrog.
(state actor)
(2)

PO Rslb Sus
knock wld:

Custody

Interrogation

voluntary

Inhib inves. evid. destr.

futile

This includes back of

police car

Right to remain silent

(1)

dangerous

Honest mistake in
executing W may be
permissive

Howev, unreliable ear is

assumed for all people

but

Miranda
Waiver

Right to Counsel

May reasonably detain non-IDed ind. in

house when W names Ds

Intervening Acts of
free will on part of D

Miranda

For impeachment
purposes

Words may be used against

In custody if at time of interg

did not feel free to leave

Rght to atty

Objective
stand

Any conduct where PO knew or shld

know might illicit incrim respon from D

In cell, but also maybe

in home or hospital

More than just asking

questions

May waive w/o signing

waiver form

intelligent

6th Amnd

Once assert right to termin interr,

reinitiating w/o counsel = violation

Offense specific

5th Amnd

1 circumstance: D invokes, and PO

may not reinitiate on ANY topic

Not offense-specific

Checklist:

Rght to atty @ interg

Rght to atty

Atty appt

Prob intv & car stop

not custodial

Spontaneous statement
by D is admiss

Shoulder shrugging not

enough, must comminc it

McNeil incrim stat made while in

jail on burglary for murder, allowed
b/c didnt ask for atty on murder

Bias the W in IDing

Post-charge atty

Due process in W ID
Remedy: exclude ID

Pre-trial Procedures

Look at
subjective
intent of PO

Bail Issues

Immediately appealable

Booking
Exception &
Public
Safety Excp

Excpt:
indenpd.
source

Preventative detention is allowed

Look for (a) same

questions pre,post
Miranda, (b) timing, (c)
continuity of personnel

Warrantless Public Arrest

Committed in
Officers Presence

Not in Officers
Presence

Felony or
Misdemeanor

Felony w/ PC (no
need to show exig)

Warrantless House Entry to Arrest

Warrantless House Entry When Arrest

is Outside Home

Not permitted to make routine felony

arrest when nonconsensual cannot
create the emergency

Must be substantially contemporaneous to

arrest and confined to immed vicinity

except

Even for very minor crime

when in presence of PO

Subjective intent of officer not material

except

Hot Pursuit

Exigent Circumstance

Must be for major crime &

must be a continuous
pursuit from scene of
crime

Prevent:
(1) destroy evid
(2) D escape
(3) danger

Lawful or Unlawful when make arrest in

home, police may search:

If arrest outside & PO believe evidence

is inside, may detail D until PO can
obtain lawful W to search house

Warrantless Search of Auto Incident to

Arrest of Occupant for Lawfully
Stopped Vehicle

If lawful, search of arrestee w/o warrant lawful

The person of D to
protect PO safety

Even though police have PC to make

arrest, method they use must be rslb

and

W/in D immed.
Control (weap/contra)

When lawful, may conduct protective sweep

(closets, hiding spots)
Atwater: police may arrest for any violation,
even minor. Whren: Test is whether COULD
HAVE arrested or pulled over, not subjective
intent of PO

Special Needs Cases

(a) rsbl grounds to think theres a violation

of school policy,
and

(a) rsbl grounds to believe search will turn

up evidence

Excessive intrusiveness of search

shown by: (a) age, (b) gender, (c) crime,
(d) method used for search

Including containers
owned by
passengers

and

Search may be for

occupants & recent
occupants

Cursory inspect & not excessive length

To go beyond cursory, must have rsb

art facts that warrant that other places
may harbor hiding assailant

Schools

Belton rule: lawful custodial arrest of occupant,

may search passenger compartments &
containers found within (PO safety & evidence)

Evaluate (1) level of intrusiveness of

checkpoint or mandatory stop, (2) extent
of the states interest, (3) effectiveness of
the method, (4) notice prior to stop or
intrusion.

Exigent Circum Factors:

(1) amount of time between crime/arrest,
(2) severity of crime,
(3) protection is sole reason for entrance
(4) police have seen commission of crime,
(5) # of ppl affected by entry