4th AM
What constitutes a search?
When the government occupies a space that a person has an objective expectation of privacy that the public would deem reasonable (REOP) AND when the government physically occupies a property by trespass for the purpose of obtaining information.
What is needed for a warrant? (include def for PC)
Probable cause: facts and circumstances are such that a prudent person (officer) would believe that criminal activity is afoot. Fair probability/substantial basis.
Oath and Affirmation
Neutral and Detached Magistrate
Particularly define the places and things to be searched
What is need to trigger Miranda
Known Govt Agent + Custody + Interrogation
What does the 6th AM cover?
Right to counsel, post-indictment
Ciarolo
4th AM does not apply to aerial searches above 1,000
I hide my illegal jelly cat in Nicole's purse, can the police lawfully seize it?
Exceptions to FOPT
(Try to define each)
Independent Source
Inevitable Discovery
Attenuation
Custody for Miranda Purposes
would a reasonable person believe that their liberty was restrained equivalent to a formal arrest? OR
would a reasonable person have felt free to terminate the interrogation and leave?
What is the Voluntariness Test under the 14th AM
Did the police interrogation overbear the suspects such that it would cause them to make an involuntary confession?
Did it shock the conscious?
Kyllo
Thermal imaging is a search
government technology not available to the general public that shows/discovers parts of the home that are not typically visible/accessible without physical intrusion
What constitutes Curtilage, for the purposes of REOP?
Proximity to the home
Enclosed within the boundary surrounding the home
Nature and use of the space (is it private)
Steps taken to protect space from observation
Exigent Circumstances
When there is probable cause to believe that exigent circumstances exist, police may conduct a warrantless search when: destruction of evidence, danger to police/third-party, fleeing suspect
Exceptions to Miranda warning requirement
Impeachment
Routine Booking Questions
Public Policy
When does the 6th AM apply and not apply to witness IDs?
Post-Indictment live lineup - 6th AM counsel required
Pre-indictment live lineup - 6th AM does not apply
Photo Arrays or non-live lineups - 6th AM does not apply
Berkemer
Who has standing in a car and in a home?
Car:
owner, and in rental car (driver), passenger of their belongings if they have REOP in the area of the car
Home:
Owner of the home, cotenant, overnight guest, social guest, commercial visitor DOES NOT
Buie Protective Sweeps
Incident to a lawful arrest, if police have reasonable suspicion that an accomplice/other suspect may be hiding they may:
Search places in the space where the suspect may be hiding, but if they lack RS: they may only sweep areas immediately adjoining the area of arrest.
Edward Minnick Shatzer Rule for re-initiating an interrogation.
1. counsel is actually present, police re-mirandize, suspect voluntarily and knowingly waives OR
2. suspect reinitates, police re-mirandize, suspect voluntarily and knowingly waives OR
3. 14 days have passed, police re-mirandize, suspect voluntarily and knowingly waives
What are the Interrogation Methods Factors for the 14th AM Voluntariness Test
Psychological Pressure, Free to Leave?, Who initiated?, Deception (words or false evidence), Threats or Promises, Length, Conditions of Custody
Elstad/Seibert
Non-admissible statements by a suspect before Miranda warnings are given do not bar admissions after a proper Miranda warning
When an interrogator deliberately uses this two-step process, it must be suppressed unless curative measures are taken before the post-confession warning was made: substantial time has passed, new interrogator, different crime
Third Party Doctrine
There is no REOP for activities/evidence/documents that a person willingly submits/says to a third party
financial documents, radio conversations with an informant, pen registers, NO CSLI
Automobile Exception and Vehicle SITA
if police have probable cause to believe that a vehicle contains evidence of a crime or contraband, they may conduct an automobile search without a warrant.
Rationale: Inherent mobility of vehicle, Reduced EOP, pervasiveness of regulations
Police may search the car incident to arrest a recent occupant when: the arrestee is unsecured and within reaching distance to passenger compartment/container or if they have reasonable belief that evidence of a crime may be found in the car
How to invoke an explicit and implicit waiver
Explicit: Clear and unequivocal voluntary, knowing, and intelligent verbal or written statement to police that you understand and are waivint
Implicit: Silence, understanding, and a course of conduct indicating waiver is enough (Actions and words after warnings are given can imply waiver)
What are the factors when determining whether a suggestive witness ID should be admissible
Viewing opportunity at the time of the crime
Degree of Attention of the witness
Certainty is demonstrated at confrontation
Accuracy and detail of prior description
Time between ID and crime
TERRY! (and RS)
Police officer may stop a person and pat them down if they have reasonable suspicion that criminal activity is afoot and that the suspect may be armed and dangerous. Reasonable suspicion: specific and articulable facts together with inferences on those facts that lead a reasonable officer to believe criminal activity is afoot.
Then may frisk if: bulge, furtive gesture, known gun carrier/gang member, tip/informant
May seize if: Probable cause there is a weapon, may search inner garments, but not manipulate the "shape."