1. publicly paid police on or off duty

2. private citizens (if they are acting at the direction of the police)

3. private security guards if they are deputized with the power to arrest guards

(campus security guards)

4. public school administrators

persons

houses (including curtilage - area of domestic use immediately surrounding the house)

papers

effects (vehicles, purses, backpacks)

Unprotected Items

PATTY ACHIEVED A GLORIOUS VICTORY OVER HER OPPONENTS

Paint Scrapings

Account Records held by bank

Air Space (anything that can be seen below while flying in public airspace)

Garbage left at the curb for collection

Voice

Odors (emanating from car/luggage)

Handwriting

Open Fields

(knowing exposure to third parties)

1. agent physically intrudes on a constitutionally protected area in order to obtain information,

OR

2. the agent's search or seizure of a constitutionally protected area violated an individual's reasonable expectation of privacy

1. an actual or subjecive expectation of privacy in the area searched or items seized, and

2. that the privacy expectation was one that society recognizes as resaonable

(police search is presumptively unreasonable when it uses a device that is not in the public use to explore details of home that officers could not have known without physical intrusion)

-if they own premises searched

-if they reside in the premises searched

-if they are overnight guests in the premesis searched (for areas overnight guests can be expected to access)

-if they own property seized--ONLY if they have reasonable expectation of privacy in area from which prop. was seized

*NY: passengers in cars can challenge possession of weapons, if possession is attributed to them

1. neutral and detached magistrate

(free from bias)

2. supported by probable cause and particularity

(fair probability that contraband or evidence of crime will be found)

3. did police officers rely on a defective warrant "in good faith?"

4. properly executed by the police

-hearsay can be used

-can rely on informant's tips but must also rest on corroboration by police of enough of the tipster's information in order to allow magistrate to make "common sense practical determination" that probable cause exists based on a totality of the circumstances

gov. must establish

1. informant's basis of knowledge, AND

2. reliability or veracity

How to satisfy particularity requirement for search warrant

MUST SPECIFY:

place to be searched AND

items to be seized

An officer's good faith can overcome constitutional deficits in probable cause and particularity UNLESS:

NOTE: NOT IN NY!!!!!!

1. so egregiously lacks probable cause that no reasonable officer would have relied on it

2. so facially deficient in particularity that officers could not reasonably presume it to be valid

3. affidavit relied on by magistrate contains knowing or reckless falsehoods that are necessary to porbable cause finding

4. magistrate is biased in favor of the prosecution

did the officers comply with its terms and limitations?

(only areas and items authorized by language of the warrant)

AND

did they comply with the knock and announce rule?

Requires police to knock and announce their presence and their purpose before forcibly entering the place to be searched, UNLESS officer reasonably believes that doing so would be

-futile

-dangerous, or

-inhibit the investigation

EXCEPTIONS TO GENERAL WARRANT REQUIREMENT:

ESCAPIST

Exigent Circumstances

Search Incident to Arrest

Consent

Automobile

Plain View

Inventory

Special Needs

Terry "Stop and Frisk"

1. evidence that would dissipate or disappear in the time it would take to get a warrant

2. hot pursuit of fleeing felon

(allows police to enter a home of a suspect or a third party's to search for a fleeing felon -- during this any evidence discovered in PLAIN VIEW while searching is admissible)

3. emergency aid - police can enter a residence w/o warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

1. arrest must be LAWFUL

2. justifications: officer safety and need to preserve evidence

3. search must be contemporaneous in time and place with the arrest

4. only the WINGSPAN: includes body, clothing, and any containers within arrestee's immediate control without regard to the offense for which the arrest was made

**NOTE: IN NY an officer must suspect that arrestee is armed before searching containers

Permissible scope: the interior cabin, including closed containers, but NOT THE TRUNK!

Once an officer has "secured" an arrestee, the officer can search the arrestee's vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

NY: once occupant is out of the car, cannot search containers inside the vehicle to look for weapons or evidence of crime

-must be voluntary and intelligent

(people officers do not need to tell someone that she has the right to refuse consent)

-an officer's consent to search extends to all areas for which a reasoble officer would believe permission to search was granted

-apparent authority: if a police officer obtains consent to search from someone who lacks actual authority to grant it, consent still valid as long as officer resaonably believed that the consenting party had "actual" authority

**when adults share a residence, one resident can consent to a search of common areas within it

(however, if co-tenants disagree re: consent to search common areas, objecting party prevails, as to areas over which they share dominion and control

Automobile Exception

justification: vehicles ready mobillity and individuals' lesser expectation of privacy in vehicles

Police officers need probable cause to beleive that contraband or evidence of crime will be found in the vehicle

-can search ENTIRE vehicle and may open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search

Traffic stops/auto searches: officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search

-lawful access to the place from which the item can be plainly seen

-lawful access to the item itself

-criminality of the item must be immediately apparent

Inventory Searches

-commonly occur in two contexts:

1. arrestees when they are booked

2. vehicles when they are impounded

CONSTITUTIONAL IF:

1. regulations governing them are resaonable in scope

2. search complies with those regulations

3. search is conducted in good faith, motivated solely by the need to safeguard the owner's possessions and/or ensure officer safety

Random Drug Testing

(RR employees, customs agents, students who participate in extracurriculars)

-suspicionless tets not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement

Parolees

Warrantless, suspicionless searches of parolee and his home permissible as condition of parole

School Searches

Warrantless searches of the person and effects of public schoolchildren are permissible to investigate violations of school rules, such as prohibition of smoking on school grounds, so long as the search is REAONABLE at its inception and is not excessively intrusive in light of the age and sex of the student

Border Searches

Neither citizens nor non-citizens have any Fourth Amendment rights at the border, with respect to routine searches of persons and effects

Brief detention or sezure for the purpose of investigating suspicious conduct

(terry stops can take place anywhere)

based on reasonable suspicion that criminal activity is present

When, based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions

Consider

-whether officer brandishes a weapon

-officer's tone and demeanor

-whether the individual was told she had right to refuse consent

When being pursued by the police, an individual is seized only if he submits to the officer's authority by stopping or if the officer physically restrains him

NY: police pursuit is a seizure in and of itself

Both driver and passengers are seized, such that either can challenge the legality of the stop

officer may, in her discretion, order both the driver and the passengers out of the car

Dog sniffs at traffic stops are permissible provided that the sniff does not prolong the stop unreasonably

Pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous

*requires specific and articulable facts that suggest that a suspect is armed and dangerous (justified by safety concerns ONLY!)

-if officer finds somethign he reasonably believes to be a weapon, it can always be seized

-If officer finds contraband without manipulating the object, can seize it as well (BUT NOT IN NY-ONLY WEAPNOS)

when conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicle, limited to those areas in which a weapon may be placed or hidden

when making an in-home arrest, police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety

-may sweep area immediately adjoining the place of arrest, provided there is reasonable suspicion that house harbors a person who poses danger to those on arrest scene

-to justify sweep of more remote areas, arresting officers must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept

Reasonable Suspicion

-requires specific and articulable facts that inform an officer's belief that criminal activity is present

*officer's subjective intent is irrelevant

Informants tip can satisfy this standard IF it contains sufficient predictive information, corroborated by police, to establish informant's reliability

To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?

*Federal Exclusionary Rule*

-excluded from case-in-chief ONLY but can be introduced to impeach D's testimony on cross examination

-knock + announce violation does not require suppression of evidence that is subsequently discovered

-erroneous police conduct must be deliberate, reckless, or grossly negligent to trigger exclusionary rule

-exclusionary rule doesn't apply to evidence erroneously obtained when executing a search warrant, providing mistake was reasonable

Prosecutors must show a break in the causal link between original illegality and the criminal evidence that is later discovered. 3 ways:

1. "independent source"- where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality

2. "inevitable discovery" - evidence would necessarily have been discovered through lawful means

3. "attenuation" - admits derivative evidence where the passage of time and intervening events purged the taint of the original illegality and restore the defendant's free will

Four major requirements for a valid wiretap warrant

SCREEN TELEPHONE CALLS CAREFULLY!

Suspected Persons

Time (strictly limited time period)

Crime (probable cause that crime committed)

Conversations (must describe with particularity the conversations that can be overheard)

Whenever the police take someone into custody against her will for prosecution or interrogation

De Facto Arrest: when police compel someone to come to the police station for questioning or finger printing

PROBABLE CAUSE!

*4th Am. permits custodial arrests for ALL offenses, even those punishable by a monetary fine ONLY

IN PUBLIC

-felonies: warrantless arrest when officers have probable cause to believe arrestee has committed a felony

-misdemeanors: may make a warrantless arrest for any misdemeanor committed in his or her presence

IN HER HOME (absent emergency)

To arrest someone in the home of a third party, police officers need an arrest warrant and a search warrant

-14th amendment (DP)

-6th amendment (right to counsel

-fifth amendment (Miranda)

NY CON: defendants can also challenge under "indellible" right to counsel

must be VOLUNTARY

(confession cannot be overborne by police coercion)

-Attaches when defendant is formally charged

-applies to all "critical stages" of the prosecution that take place after hte filing of formal charges, including arraignment, probable cause hearings, and police interrogation

(offense specific --> only applies to charges filed against you. No protection for interrogation for other uncharged criminal activity)

-Incriminating statements about charged offense violate 6th am. if they are deliberately elicited and the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorney present

Provides greater protection than 6th am.

-attaches whenever there is significant judicial activity before filing of an accusatory instrument such that a defendant may benefit from the presence of counsel

-if a D is taken into custody for questioning on a charge and the police are aware theat he is represented by counsel on that charge, they may not question him about that charge or any other matter without his attorney present

-if D is represented by counsel, waiver of the indelible right to counsel must take place in the presence of the attorney

Four Core Miranda Warnings

1. the right to remain silent

2. anything you say can and will be used against you in a court of law

3. the right to an attorney

4. if you cannot afford one, an attorney will be appointed for you

CUSTODY

(if atmosphere, viewed objectively, is characterized by police domination and coercion such that his or her freedom of action is limited in a signifigant way)

+

INTERROGATION

(any conduct the police knew or should've known was likely to elicit an incriminating response)

*does NOT apply to spontaneous statements that are not the product of interrogation

*note: a suspect talking to a friend --> no coercive atmosphere

Officer must reasonably convey to the suspect his or her core Miranda rights, AND

thereafter obtain a valid waiver of a suspect's Miranda rights to silence and counsel

1. "knowing and intelligent:" suspect understands the nature of the rights and the consequences of abandoning them

2. Voluntary: not the product of police coersion

Waiver need not be "express," it may be implied by a course of conduct that indicates the desire to speak with police interrogators

-if suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police

-suspects must unambiguously invoke their right to remain silent

-once suspect invokes, police must scrupulously honor the invocation (cannot badger suspect into talking, must wait a significant period before reinitiating questioning AND must first obtain a valid Miranda waiver)

-once suspect asks for counsel, all interrogation must cease unless initiated by suspect

-request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel

-NOT offense specific: interrogation following a request for counsel under Miranda is prohibited as to ALL TOPICS

-request for counsel expires 14 days after a suspect is released from custody; a waiver of right to counsel after this period must be knowing, intelligent, and voluntary

-incriminating statements made in violation of Miranda rights are inadmissible for prosecutor's case-in-chief BUT can be used to impeach D's testimony on cross, but NOT testimony of 3rd party witnesses

-failure to mirandize does NOT require suppression of physical fruits of incriminating evidence (as long as statements are voluntary)

-if statement is anadmissible due to miranda violation, subsequent statements made after obtaining waiver ARE admissible, as long as initial non-miranda statement was not obtained through the use of inherently coersive police tactics, offensive to due process

Guilty verdict will stand if government can prove, beyond a reasonable doubt, that the error was harmless because the defendant would have been convicted without the tainted evidence

(also applies to physical evidence improperly admitted)

1. Line Ups (witness asked to ID perp from a group)

2. Show ups (one on one confrontation between witness and suspect)

3. Photo Arrays (shown series of photos and asked if she sees perp among them)

NO 5th AM. right

6th AM: exists for LINE UPS and SHOW UPS that take place after formal charging, but NO SIXTH AMENDMENT RIGHT TO COUNSEL AT PHOTO ARRAYS!!

greater protection for suspects!

right to have an attorney present at a line up conducted before the filing of formal charges if you are aware that you have counsel and you request that counsel be present

Violates DP when a procedure is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification

Courts must weigh the reliability of a suggestive ID against its corrupting effect

Remedy for a bad Pre-Trial ID

(violates 6th amendment right to counsel/NY indelible right/OR DP)

exclusion of witness's in-court identification

however, an in-court ID will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show up, line up, or photo array by using factors such as:

-witness's opp. to view D at crime scene

-certainty of witness's ID

-specificity of the description given to the police

Issue Indictments from secret proceedings

NY: Indictments must establish all elements of the offense and provide reasonable cause to believe that the accused committed the offense

Standard of Proof: gov. needs probable cause both to bind a D over for trial and to detain him in jail before trial

Detention Hearings (to determine PC) unnecessary to justify pretrial detention if GJ has issued indictment or magistrate has issued an arrest warrant

Soon after arrest, defendant must be brought before a magistrate who:

-advises him of his rights

-sets bail

-appoint counsel (if necessary)

Bail decisions are immediately appealable

Judge has no stake in the outcome of the case; and

Judge has no actual malice towards the defendant

6

NY: 12 (but D can waive and proceed to verdict with only 11)

Must be unanimous only if 6 are used - 12 person juries need not be

NY: jury verdicts must be unanimous

requires that the pool from which the jury is drawn represents a cross-section of the community.

Jury that contains all white women over the age of 60 does NOT violate cross-sectional requirement, provided the POOL from which it was drawn was appropriately diverse

Right to Effective Assistance of Counsel

2 prong test

1. "Deficiency" Requirement: counsel's performance fell below an objective standard of reasonableness meaning he made errors so serious that he was not functioning as counsel

2. "Prejudice" Requirement: "But for" the deficiency, the outcome of the trial would have been different

NY EXAMPLE: reversal of verdict not required where one (but not both) of 2 attys representing D was found to be unlicensed

VOLUNTARY

and

INTELLIGENT!

Judge must conduct a colloquy in open court in which she addresses:

-nature of the charges, including required elements of the charged offense

-consequences of the plea (e.g. waiver of the right to plead not guilty, waiver of the right to a trial)

-plea is involuntary due to defect in plea-taking colloquy

-jurisdictional defect (wrong court took the plea)

-defendant prevails on a claim of ineffective assistance of counsel

-prosecutor fails to fulfill his or her part of the bargain

statute would violate 8th am. if it created an automatic category for the imposition of the death penalty

-jurors must be allowed to consider ALL potentially mitigating evidence

NO DEATH PENALTY AGAINST:

1. mentally retarded

2. those who are presently insane

3. defendants under the age of 18 at the time offense occured

WHEN DOES JEOPARDY ATTACH?

for purposes of double jeopardy

Jury trial: when jury is sworn

Bench trial: when first witness sworn

Guilty plea: when court accepts the defendant's plea unconditionally

*does not apply to civil proceedings

"Same Offense" Requirement

(Double Jeopardy)

two offenses are not the "same offense" for purposes of the double jeopardy clause if each contains an element the other does not

NY: transaction test

-requires that defendant be charged with all offenses arising from any single transaction unless

-substantially different elements

-each offense contains element not in the other and prevents different harms

-one is for criminal possession and other other, use

-each offense involved harm to a different victim

Greater and Lesser Included Offenses

(Double Jeopardy)

Prosecution for greater offense precludes later prosecution for lesser-included offense

Prosecution for lesser-included offense ALSO precludes later prosecution for the greater offense

"Same Sovereign" Requirement

(double jeopardy)

1. hung jury

2. mistrial for "manifest necessity"

(example: defect found in indictment during trial that could not be cured by amending it)

3. successful appeal, unless reversal on appeal was based on the insufficiency of the evidence presented by prosecution, OR

4. breach of the plea agreement by the defendant

-can be asserted in any proceeding in which an individual testifies under oath

NY: cannot be asserted in grand jury proceeding

NOTE: privilege must be asserted at FIRST opportunity or it is forever waived

(can't plead the fifth if you've already answered the same question in an earlier proceeding)

testimonial privilege

-does not apply to state's use of our bodies

-disallows negative prosecutorial comment on a defendant's decision not to testify at trial or the invocation of his right to silence or counsel

1. Grant of Immunity

-prosecutors can grant use and derivative use immunity which bars the gov. from using your testimony or anything derived from it against you

NY: "transactional" immunity (broader- shields witnesses from proseuction for any transaction they testified about in their immunized testimony)

2. Taking the stand

-by taking the stand, the defendant waives the ability to take the fifth as to anything properly within the scope of cross examination

3. Statute of Limitations

-privilege is unavailable if the statute of limitations has run on the underlying crime since the testimony could not expose him or her to criminal prosecution