Exceptions to the Warrant Requirements

Exigent circumstances
Search incident to arrest
Consent
Automobile
Plain view
Inventory
Special needs
Terry stop and frisk
1. Exigent Circumstances
a. Evanescent Evidence: Evidence that would dissipate or disappear quickly in time
it would take for police to get warrant
b. Hot Pursuit: Officers may enter home of suspect or third party in search for
fleeing felon
c. Emergency Aid: Officers may enter residence when there is objectively
reasonable basis for believing person inside needs emergency aid (does not need
to be life threatening)
2. Search Incident to Arrest
a. Arrest must be lawful
b. Search must be contemporaneous in time and place with arrest
c. Police may search areas within person’s wingspan including body, clothing, and
containers within immediate control
d. Contemporary Developments:
i. Court balances privacy against government interest
ii. Cell Phones: Police may not search data on phone without warrant but
may examine phone’s physical aspects
iii. DNA Evidence: Police may take DNA sample of person arrested for
serious offense
iv. Sobriety Tests: Warrantless breath tests are permitted, but not blood
tests
e. Automobile Search Incident to Arrest
i. Police may search passenger cabin, including closed containers but not
trunk
ii. One arrestee is secured, officer can search vehicle only if reason to
believe vehicle may contain evidence relating to crime for which arrest
was made
3. Consent
a. Must be voluntary
b. Extends to all areas for which a reasonable officer would believe permission was
granted
c. Consent is valid if officer reasonably believed consenting party had actual
authority
d. Consent and Shared Premises:
i. Resident can consent to search of common areas
 ii. If co-tenant disagrees, objecting party prevails
iii. If objecting co-tenant is removed, police can rely on consent of remaining
co-tenant
4. Automobile Exception
a. Police need probable cause to believe contraband or evidence of crime will be
found in vehicle
b. Police can search entire vehicle and open any container that may reasonably
contain item including truck
c. Officer doesn’t need probable cause to search vehicle at time its pulled over but
needs it before search
5. Requirements for Plain View Exception
a. Lawful access to place from which item can be plainly seen
b. Law access to item itself
c. Criminality of item is immediately apparent
6. Requirements for Inventory
a. Regulations are reasonably in scope
b. Search complies with those regulations
c. Search is conducted in good faith
7. Terry Stop and Frisk
a. Terry Stop: Brief detention or seizure for purpose of investigating suspicious
conduct
i. Consider 3 factors
1. Whether the officer brandishes a weapon
2. The officer’s tone and demeanor when interacting with the
person questioned
3. Whether the individual was told she had the right to refuse
consent
ii. When being pursued by officer, an individual is seized only if they submit
to officer’s authority by stopping of if officer physically restrains them
iii. Traffic Stops
1. Driver and passengers are seized and either can challenge legality
of stop
2. Officer may order driver and passengers out of vehicle
3. Dog sniffs at traffic stops are permissible if sniff does not prolong
stop
b. Terry Frisk: Pat Down of body and outclothing for weapons justified by officer’s
belief that suspect is armed and dangerous
i. What can be seized:
1. Something officer believes to be a weapon
2. Something officer recognizes as contraband without manipulating
the object
ii. Car Frisks: If officer believes suspect is dangerous, officer can search
passenger cabin, limited to areas where weapon may be placed or hidden
 iii. Protective Sweeps: When making in-home arrest, police may sweep
residence to look for criminal confederates who may threaten officers
safety
c. Reasonable Suspicion (Evidentiary Standard)
i. Terry Stops: Specific and articulable fact that inform an officer’s belief
that criminal activity is present
ii. Terry Frisks: Specific and articulable facts that suggest a suspect is armed
and dangerous
iii. Informants’ tips can satisfy reasonable suspicion if tip contains sufficient
predictive information, corroborated by police, to establish informant’s
credibility
iv. Protective Sweeps: When making in-home arrest, officers have authority
with or without probable cause or reasonable suspicion, to look in
adjoining areas from which an attach can be immediately launched
8. Special Needs Searches
a. Drug testing
i. Railroad employees following accidents
ii. Customs agents reasonable for drug interdiction
iii. Public schoolchildren who participate in any extracurricular activity
b. Searches of parolees as condition of parole
c. Searches of public schoolchildren and effects to investigate violations of school
rules, provided search is reasonable and not excessively intrusive in light of age
and sex of student and nature of infraction
d. Searches of government employees’ desks and file cabinets
e. Neither citizens nor noncitizens have 4th amendment rights at border with
respect to routine searches
f. Special needs doctrine does not include law enforcement programs whose
primary purpose is to gather evidence for general use by law enforcement
Exclusionary Rule
1. Exclusionary Rule: Evidence, whether physical or testimonial, obtained in violation of
federal statutory or constitutional provision is inadmissible in court against individual
whose rights were violated
2. Limits on Exclusionary Rule:
a. Unconstitutionally obtained evidence excluded from prosecutor’s case in chief
only
b. Failure to comply with knock and announce rule does not require suppression of
evidence
c. Erroneous police conduct must be deliberate, reckless, or grossly negligent to
trigger exclusionary rule
d. Exclusionary rule does not apply to evidence obtained erroneously, provided
officer’s mistake was reasonable
3. Fruit of the Poisonous Tree: Evidence obtained by exploiting prior unconstitutional
conduct
a. Also inadmissible in the prosecutor’s case in chief
 4. Doctrines that Break Causal Link Between Original Illegality and Evidence:
a. Independent Source: Applies where there is a source for the discovery and
seizure of the evidence that’s distinct from the original illegality
b. Inevitable Discovery: Applies where the evidence would necessarily have been
discovered through lawful means
c. Attenuation: This doctrine admits derivative evidence where the passage of time
and intervening events and the non-flagrant nature of the official misconduct
purge the taint of the original illegality
Arrests
1. When Arrest Occur
a. Police take person into custody against their will for prosecution or interrogation
b. Police compel person to come to police station for questioning or fingerprinting
c. Standard of proof for arrest is always probable cause
2. Arrest Warrants
a. Warrant not needed to arrest person in public place
b. Warrant needed to arrest person in their home absent emergency
c. To arrest person in home of third party, officers need arrest warrant and search
warrant
Confessions
1. Constitutional Challenges to Confessions
a. 14th Amendment due process clause
b. 6th Amendment right to counsel
c. 5th Amendment Miranda doctrine
2. Involuntariness under Due Process Clause: Confession is product of police coercion that
overbears suspect’s will
3. 6th Amendment Right To Counsel:
a. Attaches when D formally charged
b. Applies to all critical stages of prosecution
c. Offense-specific: Applies only to crimes with which D is formally charged
d. Incriminating statements obtained by law enforcement violate 6th Amendment
if:
i. Statements are deliberated elicited
ii. D didn’t waive right to counsel
4. Miranda
a. Miranda Warnings
i. You have the right to remain silent
ii. Anything you say can and will be used against you in a court of law
iii. You have the right to an attorney
iv. If you can’t afford one, one will be appointed for you
b. When Miranda Warnings Required
i. Custody
1. Reasonable person would not feel free to end interrogation and
leave
 2. Environment presents the same inherently coercive pressures as
station house questioning in Miranda
3. Custody inquiry takes into account juvenile’s age where age is
relevant, and the officer knew or should have known of the child’s
age at the time of questioning
ii. Interrogation: Any conduct police knew or should have known was likely
to elicit incriminating response
c. Suspect’s responses obtained through custodial interrogation are admissible if
officer:
i. Reasonably conveys to suspect their core Miranda rights
ii. Obtains valid waiver of suspect’s right to silence and counsel
iii. Public Safety Exception: If custodial interrogation is prompted by
immediate concern for public safety, Miranda warnings are unnecessary,
and any incriminating statements are admissible against the suspect
d. Miranda Waiver:
i. Must be knowing and intelligent: Suspect understands nature of Miranda
rights and consequences of abandoning them
ii. Must be voluntary: Not product of police coercion
iii. Can be implied by course of conduct
iv. Suspect waives right to silence by making uncoerced statement to police
v. Burden on prosecution to prove valid waiver by preponderance of the
evidence
e. Invoking Right to Silence
i. Suspect must unambiguously invoke right
ii. Officers must scrupulously honor invocation
iii. Officers must wait significant period of time before reinitiating
questioning and must first obtain waiver
f. Invoking Right to Counsel
i. Request must be sufficiently clear that reasonable officer in same
situation would understand statement to be request for counsel
ii. Once counsel is requested, all interrogation must cease (unless initiated
by suspect)
iii. Not offense-specific: Interrogation on all topics prohibited
iv. Request expires 14 days after suspect released from custody
g. Effect of Miranda Violations
i. Statements inadmissible in case in chief but may be used to impeach D
ii. Failure to give warnings does not require suppression of physical fruits of
incriminating statements if voluntary
iii. If statement is inadmissible due to Miranda violation, subsequent
incriminating statements made after obtaining waiver are admissible if
initial statement wasn’t obtained through inherently coercive police
tactics
 h. Harmless Error Rule: Guilty verdict stands if government can prove beyond a
reasonable doubt that error was harmless because D would have been convicted
without tainted evidence
5. Pretrial Identifications
a. Lineup: Witness asked to identify preparator from group
b. Showup: One on one confrontation between witness and suspect
c. Photo array: Witness shown photos and asked if perpetrator among them
d. Challenges to Pretrial Identifications:
i. Denial of right to counsel under 6th Amendment
1. Note: There is NO 6th Amendment right at photo arrays
ii. Due process violation when procedure so unnecessarily suggestive that it
creates substantial likelihood of misidentification
e. Remedy for unconstitutional identification is exclusion of in-court identification
f. In-court identification will be allowed if it has independent source
Pretrial Procedures, Trial, and Pleas/Sentencing, and Punishment
1. Grand Jury
a. Issue indictments
b. Proceedings are secret
c. Georgia uses grand juries as part of charging process
2. First Appearance
a. Magistrate advises D of rights, appoints counsel, and sets bail
b. Bail should be no greater than what is necessary to ensure D’s presence at trial
c. Bail may be denied based upon proof of danger to community
d. In Georgia, first appearance must take place no more than 72 hours after arrest
e. Government needs probable cause that D committed charged offense to bind
them over for trial and either impose bail or detail them
i. Preliminary hearing to determine probable cause not necessary if grand
jury issued indictment or magistrate issued arrest warrant
ii. In Georgia these are called commitment hearings
3. Right to Speedy Trial: All criminal Ds have right to speedy trial
a. To determine whether that right has been violated, courts have to consider the
totality of the circumstances including 3 major factors:
i. The length of the delay
ii. The reason for the delay
iii. Whether D asserted his right
iv. Any prejudice to D
4. Brady Rule: Prosecutors have duty to disclose material, exculpatory evidence to D
5. Right to Unbiased Judge
a. No financial stake in case’s outcome
b. No actual malice towards D
6. Jury
a. Right to Jury Trial
i. Federal: When authorized sentence exceeds 6 months
ii. Georgia: All criminal trials
 b. Number of Jurors
i. Federal: At least 6
ii. Georgia: Misdemeanor: 6 | Felony trial: 12
c. Cross-sectional Requirement: Jury pool must represent cross-section of
community
d. Preemptory challenges cannot be used to exclude jurors based on race or gender
7. Ineffective Assistance of Counsel
a. Deficiency: Counsel’s performance fell below objective standard of
reasonableness
b. Prejudice: But for the deficiency, outcome of trial would have been different
8. Pleas
a. Plea must be voluntary and intelligent
b. Plea taking colloquy
i. Must take place in open court and on the record
ii. Judge must be sure D understands:
1. Nature of charges
2. Consequences of the plea
c. When Guilty Plea Can Be Withdrawn:
i. Involuntary due to defect in plea taking colloquy
ii. Ineffective assistance of counsel
1. If guilty plea carries risk of deportation, counsel’s failure to inform
D of that fact satisfies deficiency requirement
iii. Prosecutor fails to fulfill their part of the bargain
9. Punishment
a. 8th Amendment prohibition against cruel and unusual punishment disallows
criminal penalties that are grossly disproportionate to seriousness of offense
committed
b. Death Penalty
i. Statute cannot create automatic category for imposition of death penalty
1. Such a statute would violate 8th Amendment
ii. Jurors must be allowed to consider all potentially mitigating evidence
iii. Death penalty cannot be imposed on Ds:
1. With intellectual disabilities
2. Who are presently insane
3. Who were under age 18 at time of crime
4. Who committed crime where victim did not die
c. Any fact that increases statutory maximum or mandatory minimum must be
found by the jury
Double Jeopardy and Self-Incrimination
1. Double Jeopardy Clause: No person shall be subject for the same offense to be put
twice in jeopardy of life or limb
2. When Jeopardy Attaches:
a. Jury trial  When jury is sworn
b. Bench trial  When first witness is sworn
 c. Guilty plea  When court accepts plea unconditionally
d. Civil proceeding  Does not attach
3. 2 offenses are not the same offense if each contains an element the other does not
4. You cannot be put twice in jeopardy of life or limb for the same offense by the same
sovereign (State and federal government is NOT same sovereign)

5. When Retrial is Permitted

a. Hung jury
b. Mistrial for manifest necessity
c. Successful appear, unless reversal was based on insufficiency of evidence
d. Breach of plea bargain by D
6. 5th Amendment: Privilege Against Self-Incrimination
a. Anyone can assert privilege
b. Can be asserted in any proceeding in which individual testifies under oath
c. Failure to assert privilege in civil proceeding undermines ability to assert in in
later criminal proceeding
d. Prosecutor may not comment negatively on D’s:
i. Decision not to testify at trial
ii. Invocation of right to silence
e. Eliminating the Privilege
i. Use and derivative use immunity bars government from using D’s
testimony or anything derived from it against D
ii. By taking the stand, D waives ability to assert privilege
iii. Privilege unavailable if SoL has run on underlying crime