Searches
These are the three ways a search occurs within the meaning of the Fourth Amendment.
What are (1) the government physically occupies private property for the purpose of obtaining information; (2) the government violates one's reasonable expectation of privacy. An individual has a reasonable expectation of privacy when he or she exhibits a subjective belief in privacy, and that belief is one that society is willing to recognize as reasonable; and (3) the government uses sense enhancing technology that is not within the general public use to obtain details of the interior of one's home that could not otherwise be obtained without physical intrusion into a constitutionally protected area?
These are the Warrant Clause requirements for a warrant.
What are:
Probable cause (with evidence showing the probable cause)
Particularity describing the place to be searched or the persons/things to be seized
Supported by an oath/affirmation by applicant
Must specify time and location for use
Approved by a neutral and detached magistrate
This is the scope of a police officer's seizure authority during a traffic stop.
During a legitimate traffic stop, the duration of the seizure can last as long as it takes, or reasonably should take, to complete the purpose of the task associated with the stop. Once the purpose is completed, the seizure must end unless the motorist consents to prolonged detention or the officer develops a reasonable articulable suspicion that a specific crime is afoot. Then the seizure may continue until the officer has confirmed or dispelled that suspicion.
Has fifth amendment self-incrimination privilege.
Who is a natural person making testimonial statements?
In all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his or her defense.
What is the Sixth Amendment right to counsel?
These four factors determine whether an area is a curtilage or an open field.
What are (1) the proximity of the area to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the residents to protect the area from observation by passersby?
This is what the court must balance in determining whether an exception to the warrant requirement applies.
What are the privacy interests involved against the extent to which adhering to the warrant requirement would unduly hamper effective law enforcement?
Terry Stop and Terry Frisk that is justified at its inception.
What is a brief investigatory stop? It is justified at its inception when an officer has reasonable suspicion. The officer must point to specific and articulable facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution to believe that a crime has occurred, a crime is occurring, or a crime is about to occur. The length of the detention may only last as long as the purpose of the stop itself.
What if during a “Terry” stop, the officer independently develops reasonable suspicion to believe that the individual is presently armed and dangerous? The officer is authorized to conduct a “Terry” frisk. A “Terry” frisk is authorized at its inception when an officer can point to specific and articulable facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution to believe that the individual is presently armed and dangerous. During the frisk, If the officer feels an object with an immediately incriminating nature, the officer may seize the object.
The Miranda rights.
What is before the individual is subjected to questioning he or she must be warned in clear and unequivocal terms that he or she has a right to remain silent, that anything he or she says may be used against him or her in a court of law, that he or she has the right to the presence of an attorney, and that if he or she cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
At the initiation of adversarial proceedings.
When does the sixth amendment right to counsel attach during formal charge, preliminary hearing, indictment, information, or arraignment?
Fourth Amendment protection when law enforcement puts a tracking device in chattel to discover incriminating evidence.
What is the use of a tracking device attached to a suspect’s vehicle or object carried by the suspect does not constitute a search to the extent that it provides the police with information that could not have otherwise been secured by visual surveillance from public places? A vehicle traveling in public space has no reasonable expectation of privacy while in that space because it is exposed to the public. Surveillance of activities occurring in public falls outside the protections of the Fourth Amendment.
Yes, this is the automobile exception to the warrant requirement.
If law enforcement has probable cause to believe that the vehicle contains contraband or evidence of criminality, may that vehicle be searched without a warrant? One knows that the vehicle is readily mobile, the visibility of the inside of the car, and subject to pervasive, continuing, government regulations and control, and thus recognizes that automobiles are subject to lessened privacy interests than a home.
The exclusionary rule and its purpose.
What is a judicially created remedy that states that material obtained in violation of the Constitution cannot be introduced at trial against a criminal defendant? The primary purpose of the exclusionary rule is to deter police misconduct. The exclusionary rule applies when the deterrence value substantially outweighs the social costs. The deterrence value substantially outweighs the social costs if the government actor's violation is deliberate, reckless, grossly negligent conduct, or recurring or systemic negligence.
Miranda Warnings triggered.
What is a custodial interrogation? A person is in custody within the meaning of the Fifth Amendment when his or her freedom of action is restricted or curtailed in any significant way by the government. An interrogation within the meaning of the Fifth Amendment includes statements, acts, or questions initiated by a state actor reasonably calculated to elicit incriminating responses.
This is a difference between the fifth and sixth amendment right to counsel.
What is "the 6th amendment right is “offense-specific.” It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings. Where the same act or transaction constitutes a violation of distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not"?
This is the rule and rationale for the open fields doctrine.
The Fourth Amendment protection does not extend to open fields because an open field is not considered an effect within the meaning of the Fourth Amendment. Additionally, an individual does not have a reasonable expectation of privacy in an open field. An individual has a subjectively reasonable expectation of privacy in one’s curtilage and society is prepared to recognize an objectively reasonable expectation of privacy in one’s curtilage, but what one knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. Therefore, if an area on the curtilage is observed by way of public observation, an individual cannot claim Fourth Amendment protection over incriminating acts or objects observed.
Administrative searches pursuant to the special needs doctrine.
What is a legislatively authorized warrantless, suspicionless search of a highly regulated commercial industry, which includes firearm, liquor, junkyard, and mining industries, is reasonable if three criteria are met? First, there must be a substantial governmental interest that informs the regulatory scheme pursuant to the inspection that is made. Second, the means chosen by the government for warrantless inspection must be necessary to further the regulatory scheme. Finally, the statute’s inspection program must provide an adequate substitute for a warrant. Usually consent by the owner is overridden unless it has been reviewed before a neutral decision maker.
These are instances where the exclusionary rule has zero deterrent value and does not apply.
(1) when the discovery of incriminating evidence results from acts genuinely independent of any illegality, the exclusionary rule has zero deterrent value and does not apply. (2) If police officer’s can demonstrate that they would have inevitably discovered the evidence, absent a violation of the Constitution, the exclusionary rule does not apply and the evidence is admissible. The state must point to specific facts that would prove by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. (3) The exclusionary rule does not apply if the link between police misconduct and the evidence becomes attenuated. The attenuation of the taint inquiry looks at (a) the temporal proximity of the government misconduct and the discovery of evidence (the more time that passes the more likely the court will find attenuation); (b) the presence of intervening circumstances (more likely disconnected if intervening causes sever the link); and (c) the purpose and flagrancy of the official misconduct (the more purposeful and deliberate the worse it is for the state). (4) The exclusionary rule does not apply to negligent or good faith violations of the Constitution. (5) The rule does not apply to government acts conducted in objectively reasonable reliance on what officers thought to be binding appellate precedent. (6) Finally, the exclusionary rule does not apply if law enforcement officers violate the Fourth Amendment knock and announce requirement.
The individual has waived his Miranda rights.
What if after such warnings have been given, the individual knowingly and intelligently waive these rights and respond to questions or make a statement? Until the warnings are given or waiver is demonstrated, no evidence obtained, whether inculpatory or exculpatory, as a result of the interrogation can be used against the individual.
The 6th Amendment right to counsel is waived.
What happens when voluntary statements from the accused are are made absent government initiated communications to elicit the statements from an individual represented by counsel?
This is the suspicion required to substantiate a search warrant and its definition.
What is probable cause? “A police officer has probable cause to conduct a search when “the facts available to him would ‘warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.”
“Probable cause is less than preponderance of the evidence. Conceptually it is not as demanding as more likely than not. Probable Cause is lower than any civil quantum of proof, the hierarchy being Beyond a Reasonable Doubt, Clear and Convincing, Preponderance of the Evidence, Probable Cause, Reasonable Suspicion”
These are the levels of suspicion required for all searches and exceptions to the warrant requirement to render those searches reasonable within the meaning of the fourth amendment.
What is reasonable suspicion for exceptions to knock and announce, emergency aid, imminent destruction of evidence, border search of a person, schools, and search of probationers?
What is probably cause for hot pursuit of a felon, the automobile exception, and plain view "feel"?
What is the categorical authority to seize (detain) co-occupants of a place to be searched with a warrant, plain view, search incident to arrest, consent, search of parolees, and most special needs searches (admin, border (property), sobriety checkpoints, government employment, drug testing, jails/prisons, DNA of arrestees)?
At a suppression hearing, a defendant must prove this.
When, procedurally, with the exclusionary rule be invoked through a motion that the evidence was illegally obtained and should be excluded? When must the defendant have allegations of deliberate falsehood or of reckless disregard for the truth and these allegations must be accompanied by an off of proof?
The inclusion of age in the custody analysis is consistent with the objective nature of that test.
What if a child is taken into custody, so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer? Whether a reasonable person would feel that his or her freedom of action is deprived would depend on his or her age.