1. Magistrate error - cops have warrant but it is not based on probable cause.

2. Searches pursuant to statutes later found to be unconstitutional; while statute is valid - ER not applied when acting in good faith.

3. Searches made pursuant to statutes allowing warrantless searches.

1. Police provide false information to magistrate to get warrant.

2.  Magistrate abandons judicial role (fails neutral and detached requirement).

3. Warrant or statute is facially deficient that no reasonable officer would believe it to be valid.

4. S&S reasonable at inception, but exceeded scope or intensity that was authorized by warrant.

TX added more protection for D, it is narrower.

In TX, good faith exception applies only if warrant issued for probable cuase

TX allows for ER argument to be made to jury in an instruction even if D lost suppression motion.

1. Must be state/gov't action

- If gov't employs assistance of private citizen then agency relationship is estbalish and 4A applies.

- TX offers more protection and extend evidence illegally obtained by private person.

2. U.S. citizen or those with sufficient connection

3. Action must be a "search or seaizure"

4. D must have standing

Is there a reasonable expectation of privacy?

Two components:

1. Subjective: indicated by the person's action; did he have a reasonable expectation of privacy (i.e. closing the door to the phone booth)

2. Objective: society must regard the expectation of privacy as reasonable.

- Aerial surveillance does NOT constitute a search because no REP (any member of public could fly overhead)

-K-9 sniffing NOT a search, no REP to the odors eminating from luggage.

- Beeper surveilance NOT a search, only enhances police ability to monitor; BT once continuing surveillance enters private dwelling than it is a search

- No REP in "open fields" b/c such areas are in plain view.

- Does not apply to the curtilage - area immediately adjacent to the home that an individual may reasonable expect to remain private.

Factors:

1. Proximity of area to home.

2. Whether area is included within enclosure around surrounding home.

3. Nature of uses to which area is put.

4. Steps taken by resident to protect area from observation of passers by.

- Automatice Standing for Possession: automatice standing when D has a possessory interest.

- Must have a REP to have 4A standing

Old Rule: Police must show -

1. Why information is credible.

2. How he obtained the information.

New Rule: Totality of the Circumstances

- Would a reasonable person find probable cause?

TX: 4-corners doctrine

- Warrant must be based on probable cause and written affidavit.

 - Police Officer's info. to magistrate must be in writing.

Discrediting Probable Cause

going behind the face of the warrant and discrediting probable cause  - burden on D and very difficult to show

1. False statement or statement made with reckless disregard by cop;

2. That was necessary to establish probable cause that led to warrant.

3. Even if flase info. necessary for probable cause - don't necessarily win; cops need to be reasonable not right.

4. Difficult b/c police often relying on confidential informant (how do you demonstrate it is false?)

1. Issued by neutral magistrate (can't be paid per warrant).

2. Based on probable cause.

3. Written statement of authorization.

4. Notice of what the search is about, particularity of what to be searched and what looking for.

5. Return of Warant - police write how warrant executed, who/what was searched/seized

Remember the Good Faith Exception

Requirements:

- Neutrality must be met!

- Particular description of place to be searched.

- Police generally should knock and announce:

- Exceptions to K&A: exigent circumstance - evidence could be destroyed or threat to police safety.

Ybarra - mere proximity to the person that police have authority to search does NOT = probable cause to search unnamed person.

Police may only search in areas where items described could be found.

Once item found, search must stop.

Plain view exception to warrant requirement:

1. Justifiable entry

2. Immediatley apparent

1. Probable Cause

2. Time limit - not subject to strict time limitations as is search warrant; staleness not a factor.  Once there is probable cause to believe that D committed the crime, the probable cause continues indefinitely.

3. Particularity of Description - must particularly describe the person to be seized.

If there is illegal arrest/4A violation - D can move to suppress evidence obtained, but CANNOT suppress himself.

- Arrest in public place - warrant not required.

- Arrest in private place (need arrest warrant to enter, usually).  Arrest warrant is sufficient for entry into home and then the Plain View Doctrine applies.

- Hot Pursuit - exception to private place warrant requirement.  If you chase a suspect into a home to arrest then Plain View Doctrine applies as well.

1. Search Incident to Arrest

- Chimel Area - Following arrest police can automatically search the area around D

- Chimel area includes reaching and lunging distance.

- Chimel area moves with D, but officers can't move D around to justify broader search.

- Chimel search must be contemporaneous.

- Protective (Buie) Sweep - Rule: complete search of Chimel area is allowed even w/o probable cause; cursory search allowed outside of Chimel area where people might be.

- Beyond Buie sweep police need reasonable suspicion to search for persons.

- Search incident to automobile: General rule: When police have made a lawful custodial arrest of the driver, they may, contemporaneous to arrest search the passenger compartment of the car.

- If probable cause to arrest driver, police can search passenger compartment incident to arrest, BUT NOT the trunk

- Automobile exception: General rule: Police can completely search car w/o warrant if there's probable cause; search limited to scope of probable cause.

- If probable cause to arrest AND/OR probable cause to search car, then allowed to search trunk and containers as well.

- Closed Containers: If small container (exigent circumstances of mobility) where there's probable cause, police can seize w/o warrant, BUT need warrant to open container and search.

- Closed Container in Car: Police may conduct warrantless search of container in car regardless of whether they have probable cause for the car or the container.

- Inventory Searches: Rule - Inventory searches conducted according to standardized police procedure and not for purpose of criminal investigation is an exception to the warrant requirement.

- General Rule: Police can stop a person for less than probable cuase, if officer has reasonable suspicion that person might be armed, officer can conduct outer garment pat-down to search for weapons (guns, knives, clubs, etc.)

- Reasonable suspicion is lesser standard than probable cause but still more than a guess, police must have specific and articulabe facts.

Manner/sequence of stop and frisk is crucial:

1. Was stop reasonable? (reasonable suspicion)

2. Pat down for weapons only.

3. If detect weapons, then confiscate - no need to search further

- Free to leave standard - would a reasonable person feel free to leave? If officer's show of authority/exploitation of situation would make a reasonable person feel NOT free to leave (traffic stops are not included).

- Free to terminate encounter standard - When confinement is voluntary (i.e. on a bus), the proper standard to determine a stop is if a reasonable person would feel free to decline officer's request or to terminate the encounter.

- Suspect must submit in order for it to be a stop.  If officer yells 'stop' and you don't stop then no stop.

- If it is a consensual encounter than it is not a stop.

3 main questions:

1. Has consent been voluntarily given?

2. Has consent been given by person w/ authority to give consent? (remember police must be reasonable, not right)

3. Was search within scope of consent?

- Court examines whether there was police coercion or duress, not whether D knew he could refuse.

Rule: A confession that is the result of 1.custodial 2. interrogation cannot be admitted unless D was given the 4 warnings and understands them and then makes a knowing and voluntary waiver.

- This is a per se rule: NO GOOD FAITH EXCEPTION.

D's characteristics (i.e. age, experience) are irrelevant.

- Place of interrogation is not dispositive: you can be at home and considered in custody, you can be at police station and considered not in custody.

- Undercover officer in the invesitgatory phase does not county, how can D fell coerced if he doesn't know the agent is an officer?

- Interrogation: police can't talk D out of invoking his right.

- Test: Whether or not police know/should know that their actions are reasonably likely to elicit an incriminating response.

- Must be state action.

- Waiver: must be knowing.

- Waiver can be based on D's actions/words if D exhibits no signs of lack of capacity to understand.

- No need to give second set of warnings to interrogate about another offense.

- Public Safety Exception: if police questioning is reasonably prompted by public safety, Miranda doesn't apply.  What public safety can be is very broad.

There is a difference b/t invoking right to remain silent and right to counsel.

3 factors if right to silence invoked and then re-interrogation:

1. What did police do when right intially invoked? Did they stop?

2. Interrogation must be suspended for a significant period of time.

3. New set of warnigns must be given.

- If the right to counsel is invoked under the 5A, there can be no further interrogation.  Police cannot re-initiate further questioning, even about another offense.

- Invocation must be clear and unambiguous.

- 6A right to counsel only adheres in the adjudicatory phase.

What triggers adjudicatory phase?

- Formal accusation - indictment.

- Appearance in front of a judicial officer.

- General rule: Once the adjudicatory phase begins, 6A right attaches and police cannot deliberately elicit incriminating statements regarding the specific offense that is being adjudicated from D, without D's knowing and intelligent waiver.

- It IS offense specific.

Requirements for 6A/Massiah claims:

1. Adjudicatory phase.

2. Police deliberately elicit incriminating statement.

3. No valid waiver. ( waiver from D, not from counsel, right is D's) (TX offers more protection: waiver must be from D and counsel)

So gov't agent instructed to keep ears open is a violation b/c in adjudicatory phase.

If it is just normal person that hears it as "passive listening post" then there is no 6A violation.

Threshold questions:

1. Was there a constitutional violation?

2. Is there a connection b/t the violation and the evidence?

Exceptions:

- Burden is on D to show connection b/t violation and derivative evidence;

- Then burden shifts to P to prove that the taint is dissipated; 3 arguments:

1. Independent Source: If illegal evidence discovered via violation was also discovered through a legitimate independent source then it is admissable.

2. Inevitable discovery: This is the 'hypothetical' independent source; state may argue they would have found the evidence anyway.

3. Attenuated connection: if connection b/t violation and is evidence is sufficiently attenuated then evidence is admissable.

- If there is a Miranda or 6A counsel violation the evidence may still be used for impeachment.

-If there is a DP violation then evidence may not be used at all, not even for impeachment.

- In-court ID following arrest is NOT FOPT.

- Right to counsel during ID only attaches once the adjudicatory phase has begun.

- Atty must be present for corporeal ID procedure.

Pro-se rule: if no counsel present, the line-up ID is inadmissable.

Lawyer's role is that of observer; there is no duty to object during procedure; right to object later is not waived.

Admissibility of in-court ID following out-of-court Wade violation depends on 5 factors;

1. What was the opportunity of the witness to view the perpetrator of the crime?

2. What was the degree of attention witness gave to perpetrator of the crime?

3. Accuracy of prior description given by the witness.

4. Witness' level of certainty.

5. Time b/t crime and ID procedure.

1. Suggestiveness.

2. That is unnecessarily suggestive.

3. That gives rise to the likelihood of mis-ID.

- If DP violation: if there was a substantial likelihood of misidentification, then out-of-court ID not allowed AND witness is precluded from in-court ID.

-If Wade violation, out-of-court ID not allowed AND in-court ID is allowed if 5 factors are met.