Constitutional Law/Criminal Procedure

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Constitutional Law/Criminal Procedure

The 4th Amendment applies only where: 1) the citizen has manifested a subjective expectation of privacy; and 2) that expectation is one that society (through the Court) accepts as objectively reasonable. The belief must be deemed reasonable.

Search: Visual or aural observation or physical intrusion which infringes upon a person’s reasonable expectation of privacy constitutes a “search,” triggering Fourth Amendment protections.
Seizure: A “seizure” of property under the Fourth Amendment occurs when there is some meaningful interference with an individual’s possessory interest in that property. “Seizure” of an individual, within the Fourth Amendment, connotes the taking of one physically or constructively into custody and detaining him, thus causing a deprivation of his freedom in a significant way, with real interruption of his liberty of movement. An officer’s actual physical touching or grasping of a suspect is always defined as a seizure whether or not the suspect admits to being detained. However, if an officer engages in a nonphysical show of authority, a seizure occurs only if a reasonable person would not feel free to leave and the person actually submits to authority.
Standing Requirement: For Fourth Amendment purposes, an individual must show that he personally had a legitimate expectation of privacy in the area searched, or a legitimate expectation of privacy in the area searched, or a legitimate property interest in the thing seized, in order to establish standing to object to the evidence obtained.
Stop and Frisk: Reasonable suspicion allows a police officer to stop a person suspected of criminal activity. Attendant to a stop, a frisk may be conducted if the officer has reasonable suspicion that the suspect is armed and dangerous. A frisk is conducted to protect an officer’s safety, is limited to removal of possible weapons, and is not an evidentiary search. (Compare to Arrest)
Reasonable Suspicion: The standard of proof necessary to justify a Terry stop, generally defined as a fair possibility of criminal activity must have a particularized and objective basis—based on specific and articulable facts—for suspecting the defendant of criminal activity. The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts. (Compare to Probable Cause)
Probable Cause: A fair probability of criminal activity under the totality of circumstances. It is a fluid concept turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of rules. Probable cause to arrest exists where facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed; it is not necessary that the officer possess knowledge of facts sufficient to establish guilt, but more than mere suspicion is required.
Arrest: To deprive a person of his liberty by legal authority based on probable cause for the purpose of holding or detaining him to answer a criminal charge. All that is required for an “arrest” is some act by an officer indicating his intention to detain or take a person into custody and thereby subject that person to the actual control and will of the officer; no formal declaration of arrest is required. (See Custodial Interrogation, Miranda Rights)
Custodial Interrogation: Custodial Interrogation, within the Miranda rule requiring that the suspect be advised of his rights to silence and counsel, means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Custody can occur without the formality of arrest and in areas other than in a police station; basically it is a question of whether the police officers are controlling the situation in a manner that would lead a reasonable person to believe that he is under arrest. (See Interrogation)
Interrogation: Questions asked by an officer (other than those attendant to booking and other custody matters) as well as any comments or ploys which are “reasonably likely to evoke an incriminating response” from the average suspect. (See Custodial interrogation)
Open Fields Doctrine: This doctrine permits police officers to enter and search a field without a warrant or probable cause, as there is no legitimate expectation of privacy: “Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” The term “open fields” may include any unoccupied or undeveloped area outside of the curtilage.
Automobile Exception: An automobile can ordinarily be searched without a warrant, so long as there is probable cause to believe that evidence or contraband is located in the area to be searched. This exception does not require that the car actually be in motion at the time the officers obtain such probable cause. If the police do not perform an immediate search, the car may be seized and held without a warrant, and subsequent warrantless search is ordinarily valid.
Fruit of the Poisonous Tree Doctrine: Evidence which is spawned by or directly derived from an illegal search or illegal interrogation is generally inadmissible against the defendant because of its original taint, although knowledge of facts gained independently of the original and tainted search is admissible.
Voluntariness: Under the Due Process Clause, involuntary confessions will not be allowed as evidence at trial. Whether a confession is “voluntary” is determined by the amount of coercive police activity involved (rather than on the defendant’s state of mind), and is reviewed on a case-by-case, totality of the circumstances basis. Police officers are allowed to play on a suspect’s ignorance, anxieties, fears, and uncertainties; but they are not allowed to magnify them to the point where rational decision becomes impossible.

Police may search an automobile and any containers within it when they have probable cause to believe contraband or evidence of crimes is present anywhere inside. The only remaining limit on scope of the permissible search derives from the size and shape of the items sought—police may search only where such items may be hidden. Moreover, it does not matter that the container in question is known to the officer to be the property of a passenger not suspected of criminal activity.

Challenging a confession under the voluntariness standard therefore requires a showing that:

  • The police subjected the suspect to coercive conduct; and

  • The conduct was sufficient to overcome the will of the suspect (given her particular vulnerabilities) and the conditions of the interrogation), thus inducing an involuntary statement.

The second requirement incorporates the totality-of-the-circumstances analysis:

  • Peculiar circumstances and vulnerabilities such as age, level of education, mental stability, state of sobriety, and familiarity with the criminal justice process.

  • The other factors concern the manner in which the police conducted the interrogation, such as the length of the suspect’s detention, the duration and the intensity of the questioning, the use of trickery, deception, threats, or promises of leniency, the deprivation of access to family, friends, or nourishment, where the police advised the suspect of her rights, and whether she was subjected to any physical or psychological mistreatment.

Exam Tips

  1. Spot search & seizure issue under 4th Amendment.

  2. Is there state action?

  3. Search & seizure issue occurs at this particular junction in the hypothetical –where a resident and the U.S. government met. (*The police don’t need probable cause or reasonable suspicion don’t need a warrant because anyone can knock. There is no 4th Amendment issue. The front door of your home is essentially an open field. The public can do what they want. The 4th Amendment because implicated when you come through the door.)

  4. They had a valid search warrant

  5. Does it meet the requirement of the 4th Amendment

  6. Is the execution reasonably done?

Testing on Ibarra and Michigan v. Summers, Bailey. He test on right time, wrong place.

Illinois v. McArthur

  1. Seizure and/or

  2. Search

    1. Even a minor offense you don’t have to let someone go back in there.

    2. The length of seizure of property.

    3. Wife is trustworthy. She’s putting her neck out there. She’s with the police.

  1. State Action

  2. Where did the defendant and state actor meet for 4th Amendment?

  3. Has there been a seizure?

    1. If yes, what type of seizure?

      1. arrest of a person

      2. temporary detention

      3. or his property

  4. Was it justified?

    1. If arrest of a person or temporary stop and frisk of a person or property what justifies it? No warrant or if necessary we seize it for a short period of time when a warrant is obtained.

*Contrast McArthur with Place. Place- be careful. Had someone’s suitcase and sat on it for too long.

Be careful that moving someone from scene of Terry to police station briefly is not an arrest. Ex. For identification. 4th Amendment is not necessarily and arrest to move someone briefly.

Actual Outline
Fourth Amendment- The right of people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment- Nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law.
Exclusionary Rule

Purpose of the exclusionary rule (suppression) is to deter, to compel respect for the constitutional guaranty in the only effective available way…by removing incentive to disregard it

  • Remedy when there is a violation of the 4th amendment, evidence is excluded

  • Suppression is the best remedy for violation

  • Applies to a violation of the 5th and 6th amendment as well

  • Burden is on the defendant to prove by a preponderance of the evidence (more likely than not) that their rights were violated by government agent


Process to Answering Question

  1. Identify the charges

  2. Identify pieces of evidence in question

  3. Was there a violation of the 4th, 5th, 6th by a government agent?

  4. Who’s rights were violated?

  5. Violation of defendant’s rights by government agent were the fruit of the poisonous tree?

  6. A defendant seeking to have evidence suppressed must prove 1. Illegality sufficient to trigger the exclusionary sanction 2. The defendant’s right to invoke that sanction (standing) 3. That the challenged evidence was obtained as a factual result of the illegality (fruits of the poisonous tree)


The fact that there is a 4th amendment violation does not complete inquiry into admissibility:

1. What evidence is rendered inadmissible by demonstrated law enforcement misconduct?

2. What persons are able to invoke the exclusionary remedy?

The defendant seeking to have the evidence suppressed must prove:

1. Illegality sufficient to trigger the exclusionary sanction

2. The defendant’s right to invoke that sanction

3. That the challenged evidence was obtained as a factual result of the illegality or as courts put it, the evidence was the “fruit of the poisonous tree.”

Exceptions to Exclusionary Rule

  • Burden for exceptions is on the government to prove by a preponderance of evidence

  • Derivative evidence rule means all evidence derived from a violation of the defendant’s rights must be suppressed

  • Evidence gained from an independent source, that is not as a result of the violation, is admissible

  1. Attenuation of taint

      • Evidence is admissible if there has been time between the police error and the recovery of the evidence to render the evidence no longer fruit of the poisonous tree

      • A break in the chain of illegality

      • Can’t have attenuation when claiming violation of rights

      • Friendly atmosphere leads to break; thus attenuation can occur

  2. Independent source

      • Evidence that has an independent source, separate from police error, misconduct or violation of defendant’s rights, is admissible

      • Not fruit of poisonous tree; evidence found independent from misconduct

  3. Impeachment of testifying defendant

      • Evidence recovered in violation of the defendant’s 4th, 5th, or 6th amendment rights can be used to impeach said defendant. Cannot be used against other defense witnesses

      • Statement suppressed for reasons of voluntariness are not allowed; also coerced statements are not credible/trustworthy and thus not allowed

  4. Inevitable discovery doctrine

      • When the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus between the error and the evidence sufficient to provide a taint and the evidence is admissible

      • Evidence comes in because would have been found anyways (Nix v. Williams Case)

  5. Good faith exception (U.S. v. Leon Case and Herring v. U.S. case)

      • Evidence obtained in reasonable reliance on a search warrant is admissible

      • The test is objective to determine if officers acted in good faith

      • Where police act in objectively reasonable manner/in good faith; close calls should go to probable cause

      • Good faith not applicable where 1. Police recklessly or intentionally misled magistrate 2. Where magistrate abandoned judicial role 3. Where no objective officer could be relying on evidence 4. Where warrant so deficient technically (warrant has 3 parts—application, affidavit, warrant aka order)


  • Mapp v. Ohio

    • Officers knocked her down, went into her shirt to grab paper allegedly search warrant

    • Violated 14th amendment because conduct shocks the conscience because so unreasonable/outrageous behavior from officers

    • Substantive due process if conduct by government agents that is outrageous

    • Holding= in all federal and state prosecutions, there is a remedy of the 4th amendment and that is that the evidence is excluded

  • Rochin v. California

    • Another example of violation of the 14th amendment

Officers forced the defendant to have a medical procedure in which he vomited the pills—too outrageous/shocks the conscience

Fruit of the Poisonous Tree

  • Legal definition= whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint (Wong Sun v. United States)

  • Illegality that lead directly to search and or seizure to some kind of evidence. Can be a statement or a police observation i.e. guilty conscience.

    • Is the evidence found after the illegality purged? (but for)

  • A defendant seeking to invoke the fruits doctrine must establish that the challenged evidence was obtained by police as a factual result of a violation of his rights

  • Obviously, evidence obtained by law enforcement before they violated a defendant’s rights is not the fruit of the violation

Process to Answering Question

  1. has there been a violation of the 4th, 5th, 6th, 14th amendments or state statute/constitution?

  2. State agent?

  3. Standing?

  4. Remedy—exclusion often (fruits of poisonous tree)


  • Wong Sun v. United States

    • Wong Sun and Mr. Toy two defendants charged with conspiracy and possession of heroin; claim their 4th amendment rights violated because arrested without probable cause

    • Evidence= statements made by Toy in his bedroom, heroin recovered, unsigned statement by Toy and Wong Sun’s unsigned statement

    • There is attenuation here because between arrest and independent return to police station—helps to prove heroin recovered not fruit of poisonous tree

    • Standing issue—should Toy be able to object to violation of Johnny Yee’s rights

      • Yet Toy led officers to Yee’s place, thus heroin and statements in bedroom are suppressed; can’t admit Toy’s unsigned statement without corroboration so also suppressed; Wong Sun’s statement also is suppressed against Toy because untrustworthy due to conspiracy charge going out

  • Wong Sun cannot keep heroin out, like Toy, because he lacks standing since his rights were not violated; his own unsigned statement comes in against him; Toy’s unsigned statement is suppressed though

  • Rakas v. Illinois

    • Court made it harder to have standing because Rakas in vehicle that is not his and the goods found not his

    • Thus Rakas does not have standing to challenge the violation because simply temporary passenger—cannot challenge search because no possessory interest in either the car or the gun; can challenge initial stop/seizure of the car as a passenger because he was stopped with the car as well

  • Murray v. United States

    • Officers broke into warehouse without warrant, saw bales of marijuana, then applied for search warrant for the warehouse

    • Warrant issued on evidence independent from the illegal search; thus independent source rule comes into play and the warrant is ok

    • Issue of whether the officers would have sought the search warrant anyways had they not seen the bales; no evidence to support whether they would or would not have—evidence did show that they did not tell the magistrate about what they saw prior to the issuance of the search warrant

  • New York v. Harris

    • 3 statements made: 1. In home after entering home without warrant—suppressed 2. In writing at station after Miranda—not suppressed 3. Taped at station after exercising right to remain silent—suppressed

    • physical body cannot be suppressed

    • Factors to consider in determining whether detention not lawful or whether lawful because attenuation (from Rawlings v. Kentucky, pg. 39) **note, not one factor is dispositive

      • Miranda warnings were given was important but not dispositive

      • The atmosphere during the period of detention was congenial; outweighed the short 45 minute period between detention and the making of the statement which under more strict conditions would not be long enough to purge the taint of the detention

      • The discovery of the drugs in Cox’s purse and Rawlings apparent desire to assume responsibility for them was a circumstance which intervened between the initial detention and the challenged statements

      • The police misconduct did not rise to the level of conscious or flagrant misconduct

      • The statement was voluntary; an act of free will unaffected by any illegality in the detention

  • Herring v. United States

    • Bad warrant for arrest of defendant—should not have been in computer system

    • Defendant nonetheless arrested with gun and drugs on him—felon with firearm and looking at minimum 15 years; moves to suppress the gun and drugs as fruits of a bad arrest

    • Argument is that police acted in good faith based on information they had at the time

    • Police did not do anything wrong—look at computer/warrant, arrest from warrant

    • Exclusionary rule to deter police behavior that is intentional, negligent or grossly negligent; not the case here

    • Can attack by showing if systematic/systemic (aka police are systematically allowing bad warrants into computer system, thus no good faith)

  • Davis v. United States

    • Question is whether a search deemed legal and conducted at that time is a violation of the 4th amendment when that search is later deemed unconstitutional

    • Arizona v. Gant changes law regarding searches incident to lawful arrest for vehicles and is decided while Davis’ appeal is pending

    • This new rule applies to Davis retroactively

    • So police acted in good faith because search was lawful at time

    • Retroactivity can be severed from exclusionary rule

Unreasonable Searches & Seizures

Challenges to police conduct generally rest on provisions guaranteeing protection from compelled self-incrimination, rights to privacy, freedom from unreasonable search and seizure, rights to assistance of counsel and general rights to due process

Schmerber v. California

  • Facts: Taken to the hospital after getting in a car accident to be treated for his injuries and officers had probable cause to believe he was guilty of an OUI so have a doctor take a blood sample against him saying no.

  • Issue: Were the rights violated of Schmerber in the taking of his blood

  • Rule:

  • Due Process Claim under the 14th: In Rochin, the police forced the defendant into the hospital and made the doctor force a medication down his throat in order to have him throw up the two pills he swallowed. This conduct shocked the conscience and the conduct in the present case does not rise to this level

  • Self-Incrimination under the 5th: Privilege protects the accused from testifying against himself or provides the state with evidence of a testimony or communicative nature and here withdrawal of blood and use of analysis did not involve compulsion to these ends. Privilege is a bar against compelling communications or testimony but that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it.

  • Search and Seizure Violation of the 4th: Here there was a search violation was there was no warrant issued and a seizure violation as the defendant was not free to go about his daily business. However the arrest was reasonable and there was probable cause and the exigent circumstances justified the need to take the blood test without procuring a warrant.

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