(seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy)  Requirements:

1. Government Action

2. Reasonably Expectation of Privacy

3. Standing

Standing:  determination is made on a totality of the circumstances, but a legitimate expectation exists if:

a.  person had a right of possession of the place searched;

b.  place searched was person’s home, whether or not he owned or had a right to it; or

Search Warrant:  generally, police must have a warrant to conduct a search unless it falls within one of the exceptions to the warrant requirement.  To obtain a search warrant, the following is required:

1. Probable Cause

2. Precise of its Face

3. Neutral and Detached Magistrate

4. Execution

Warrant

Probable Cause

Warrant

Precise on its face

Warrant

Neutral and detached magistrate

Warrant

Execution

1. Search incident to a lawful arrest

2. automobile exception

3. Plain view

4. Consent

5. Stop and Frisk

6. Hot Persuit

plain view:  the following elements are required to establish “plain view”:

a.  the police are legitimately on the premises;

b.  the police discover evidence, fruits or instrumentalities of crime, or contraband;

c.  such evidence is in plain view; and

consent:  a warrantless search is valid if police have a voluntary and intelligent consent.  Authority to consent—any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.

Self-incrimination:  for an admission or confession to be admissible under the 5th Amendment, a person in custody must, prior to interrogation, be informed in substance that (1) he has a right to remain silent; (2) anything said can be used against him in court; (3) he has the right to an attorney; and (4) if he cannot afford an attorney, one will be appointed to him if he so desires.

Interrogation requirement:  “interrogation” includes any words or conduct by police that they should know would likely elicit a response from the defendant.

a.  right to terminate interrogation:  an accused may terminate police interrogation any time prior to or during the interrogation by invoking either the right to remain silent or the right to counsel

b.  right to counsel:  if the accused unambiguously indicates that he wishes to speak to counsel,all questioning must cease until counsel has been provided unless the accused then waives his right to counsel (e.g. by reinitiating questioning).  Note:  this is the 5th Amend. right to counsel, deriving from Miranda.  6th Amend. right to counsel requires that formal proceedings have begun, and is offense specific, so he may be questioned on unrelated charges without violating 6th. 

Exceptions permitting retrial:

1.  a state may retry a defendant whose first trial ends in a hung jury;

2.  a trial may be discontinued and defendant reprosecuted for the same offense when there is a manifest necessity to abort the original trial or when termination occurs at the behest of the defendant on any ground not constituting acquittal on merits

3.  a state may retry a defendant who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict.  Retrial is permitted when reversal is based on the weight of the evidence.  However, on retrial, a defendant may not be tried for a greater offense than that for which he was convicted;

Right to counsel:  6th Amend. guarantees the right to assistance of counsel in all criminal proceedings, which include all critical stages of prosecution after judicial proceedings have begun.  Note:  photo identifications, fingerprinting, and handwriting exemplars even after formal charges have been brought do not require a right to counsel.

1.  effective counsel:  effective assistance of counsel is generally presumed.  For ineffective assistance, defendant must show:

a.  deficient performance by counsel; and

Right to a jury trial:  this right exists only for serious offenses (i.e. when imprisonment for more than 6 months is authorized)

1.  cross-section of community:  right to have the jury selected from a representative cross-section of the community

2.  impartial jury:  if a juror expresses doubts or scruples about the death penalty, it must be determined if the views would substantially impair his performance; if juror favors death penalty, remove for cause if he would impose automatically on a guilty verdict.  Note:  defendant can use a peremptory challenge to disqualify any juror not disqualified by cause.

Valid guilty plea:  to be valid, the plea must be voluntary and intelligent, and the judge must inform the defendant personally and on the record of:

1.  the nature of the charge to which the plea is offered;

2.  the maximum possible penalty and of any mandatory minimum sentence;

3.  the defendant’s right not to plead guilty; and

EXCLUSION:  the constitutionally required remedy for illegal search and seizure or a coerced confession is exclusion of the evidence.  Under the rule, illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.

"Fruit of the Poisonous Tree”:  any evidence obtained from exploitation of the illegally obtained evidence must also be excluded at trial.  Exceptions to this doctrine are:

1.  evidence obtained from a source independent of the original illegality;

2.  in intervening act of free will by the defendant (e.g. defendant is illegally arrested, but later returns and confesses); or

Limitations on the rule of exclusion: 

1.  the rule is inapplicable to grand juries (unless the evidence was obtained in violation of federal wiretapping statutes); parole revocation proceedings; civil proceedings; or where the evidence was obtained contrary only to agency rules.

2.  the rule does not apply when police acted in good faith based on:

   a.  case law;

   b.  a facially valid statute or ordinance; or

   c.  a computer report containing clerical errors not made by the police

3.  the rule also does not apply when police act in good faith relying on a defective search warrant, unless: 

   a.  the underlying affidavit was so lacking in probable cause that it could not reasonably be relied on;

   b.  the warrant was defective on its face;

   c.  the affiant lied to or misled the magistrate; or

   d.  the magistrate has “wholly abandoned his judicial role” (i.e. a non-neutral magistrate—the porn judge)