Kroeber Outline, Summer 2009 1 of 13

4th Amendment: Preventing generalized Search & Seizure

Text of 4th Amendment:
- Right of the people to be secure in their persons, houses, papers & effects against unreasonable
SEARCHES & SEIZURES, shall not be violated.
- and no WARRANTS shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
Seizable items: people (detention/arrest); physical evidence; content of conversations; LE
observations

IS THERE A 4TH Am VIOLATION?

RULE: 4th Amendment is violated when a gov’t actor initiates an unreasonable search or seizure.
Unreasonable if…

1. GOV’T ACTION

2. REOP Does this Def have standing: Reasonable Expectation of Privacy (REOP)?
i. RULE: To get standing to challenge a search/seizure, Def must show that: 1) Def had
subjective expectation of privacy in the place to be searched/ things to be seized; AND
2) Def’s EOP was objectively reasonable: Society recognizes said expectation as
reasonable. Can show objective REOP by…
1. Right to exclude others from place searched
2. Continuing access to premises searched + possessory interest in the items seized
3. Legitimately on the premises @ the time searched + possessory interest in the
items seized
4. Valid Bailment: m/b more substantial/permanent than Rawlings
a. Established relationship btwn bailor & bailee
b. Course of conduct indicating safeguarding of relevant items
c. Agreement by bailee to safeguard relevant items
5. Def personally seized by police → See DETENTION mini-outline below
ii. REOP by place:
1. Home/Hotel: RULE: Entry/search of home w/o warrant is presumptively illegal
a. Curtillage
i. Proximity to the home
ii. Whether area is enclosed w/home
iii. Steps taken by resident to protect area from observation by passers by
iv. Nature of uses to wh/the area is put (Barn separate from house = no REOP)
b. High Tech search: Occupant has no reasonable expectation that residence will be
observed using tech means that are not in widespread use by general public
c. Aerial Surveillance: No REOP at 1000 feet; Yes REOP at 400 feet
2. Business: RULE: REOP in office (incl files & drawers), EXCEPT when public employer is
seeking work product or seeking to investigate workplace violations
3. Vehicle
4. Public: What Def exposes to the public is not subject to 4th Am protection
a. Squeezing soft-sided luggage on bus is covered by 4th Am b/c it falls under
‘effects’
5. Prison: no REOP at all
Kroeber Outline, Summer 2009 2 of 13

3. VALID WARRANT?
a. WARRANT PRESENT: PG&E Stops at Noon to Purchase Extra Kegs
i. PROBABLE CAUSE:
1. Aguilar/Spinelli Test: Affidavit based on informant’s evidence m/b subjected to 2
prong test:
a. BASIS OF KNOWLEDGE: How did informant know what they claim to know?
b. RELIABILITY/VERACITY: Factual basis in the affidavit indicating informant’s
reliability is good
i. Reliability of informants:
1. LE officers
2. Citizens/witnesses
3. Anonymous informants:
a. Previous accurate tips from same informant
b. Predicted facts actually occur
ii. Self-verifying detail (sufficient detail & specificity)
2. Gates Test: RULE: Issuing magistrate must make a practical/common sense
assessment whether there is a fair probability that contraband/evidence of crime
will be found in the described place, given the totality of circumstances.
a. CORROBORATION can make up for limits to Aguilar/Spin factors:
i. Corroboration must pertain to Def’s criminal activities
ii. Degree of suspicion attached to particular acts may be suff’t to find PC, even
if the acts themselves aren’t criminal
3. Grubb: Anticipatory Search Warrant is valid IF:
a. were a triggering condition to occur, there is a “fair probability” that
contraband/evidence of crime will be found in a particular place; AND
b. There is PC to believe that the triggering condition will occur
ii. GOOD FAITH EXCEPTION to PC: No PC needed in warrant IF… Executing officer’s reliance
on warrant was objectively reasonable.
1. Objectively Reasonable IF:
a. Search/seizure was pursuant to warrant
b. Issued by neutral/detached magistrate
2. NOT Objectively reasonable IF a well-trained officer would’ve known the search was
illegal despite the judge’s authorization
iii. EXCEPTIONS TO GOOD FAITH EXCEPTIONS: Exclusionary Rule balancing test has found
that suppression of evidence is an appropriate remedy IF…
1. Facially deficient warrant
2. Info in affidavit was false & Affiant knew/should have known
a. Remedy: excise the false info & reweigh PC
3. Judge not neutral & detached /abandoned judicial role
4. PC in affidavit is so lacking in PC that no reasonable LE officer would’ve believed
there was PC
iv. STALE INFO: not w/in 30-45 days of warrant being issued
v. NEUTRAL & DETACHED magistrate:
1. Reasoning: Indep judiciary as a check on the discretion of the exec branch;
2. Violated by: judge acting in an exec role (//to Lo-Ji)
Kroeber Outline, Summer 2009 3 of 13

vi. PARTICULARITY: Face of the warrant itself must describe the particular places to be
searched / items to be seized
1. Otherwise, it’s a general search in direct contravention of the text of the 4th Am
vii. EXECUTION:
1. Time of Day: 7am – 10pm (or 24hrs w/judge’s discretion)
2. Time from issuance: w/in 10 days
viii. KNOCK NOTICE: Police must
1. Knock
2. Announce warrant
3. Wait reasonable time (30-45 seconds / 10-15 seconds)
4. 3 sources of the rule: English CL; USSC rulings: Calif/state statutes
5. Exception: Knock notice NOT REQUIRED IF LE has a reasonable suspicion that
exigencies will occur

4. VALID W/O WARRANT?

a. NO WARRANT: Cousin, Please Exit Out the Side Vent Above the Inventing Bench
i. CONSENT
ii. PLAIN VIEW: evidence seized from w/in plain view of LE while LE is in a place LE is
authorized to be is admissible
iii. EXIGENCIES: Prevent destruction of evidence; protect occupants
iv. OFFICER SAFETY:
1. Sweep of the premises to ensure safety (Mui)
2. Stop & Frisk (Terry): LE must have specific & articulable facts indicating that Def is
presently armed & dangerous
v. SEARCH INCIDENT TO ARREST: search of the people/area w/in the immediate control of
the arrestee
1. General: wingspan (Chimel)
2. Vehicle: passenger compartment including glove box (but NOT trunk), even after
occupants exited (Belton/Thornton)
vi. VEHICLE EXCEPTION: PC + Mobility = no warrant required
1. If warrant were required, Def could simply leave the JX each time warrant pending
& never be subject to search at all
a. Often combined w/plain view
vii. ADMINISTRATIVE SEARCH: Not search for a criminal purpose, ∴ no warrant needed
viii. INVENTORY SEARCH: Requires departmental policy (otherwise impermissible
generalized search).
1. Not a search for criminal purpose (purpose is to protect LE agency from claims of
loss by cataloguing property), ∴ no warrant needed
ix. BORDER SEARCH: No REOP, ∴ no 4th Am issue
…
Kroeber Outline, Summer 2009 4 of 13

DETENTION (4th Am Seizure of person)

1) IS THERE A DETENTION? Person is seized by the police IF…

a. Mendenhall: a reasonable person would not feel free to leave/terminate the
encounter
b. Hodari:
i. LE physically contacted the Def; OR
ii. Def submitted to he LE’s authority
1. E.g., acquiesced to a request, etc.
2) IS THE DETENTION SUPPORTED BY ‘REASONABLE SUSPICION’?
a. RULE: To initiate a detention, LE must have a reasonable suspicion that the suspect is
involved in criminal activity
3) HAS THE DETENTION BECOME OVERLY PROLONGED?
a. Although valid at inception, detention may become overly prolonged

…
Kroeber Outline, Summer 2009 5 of 13

STATEMENTS/CONFESSIONS:
DP (5th/14th); Rt to Counsel (6th/14th); Miranda (5th); Fruit Of the Poisonous Tree (4th Am S&S)
MW = Miranda warning

Fruit of PT via Violation of 4th Am S&S:

RULE: If statement is a direct result of an un-attenuated violation of 4th Am, statement is

inadmissible (Wong Sun, etc.)
EXCEPTION: NY v. Harris: statement given outside home after warrantless entry into home to make
routine felony arrest is admissible (where arrest based on PC & Def got MW & waived MW).
Reasoning: b/c of either independent source or attenuation

6th Am Right to Counsel:

Massaiah RULE: Def’s Right to counsel attaches at the point that adversarial judicial proceedings
begin & LE cannot interrogate Def w/o a knowing, intelligent & voluntary waiver of right to
counsel. An attempt to elicit incriminating info in the absence of counsel is a violation of 6th
Am right to counsel.
1) 6TH AM RIGHTS ARE OFFENSE-SPECIFIC: Has the Def been charged w/THIS CRIME?
a. McNeil v. Wisconsin: Arraigned on crime 1 & appointed counsel; Mirandized &
waives & questioned about uncharged crime 2. No 6th Am right re crime 2.
2) Is it DELIBERATE ELICITATION / did LE’s actions create a SITUATION LIKELY TO INDUCE
incriminating statements?
a. Passive Secret Agent: RULE: Passive listening devices (including passive listening
people) are allowed & any statements overheard are admissible
b. Active Secret Agent: incriminating statements that are the product of a proactive
conversation are inadmissible
3) Is elicitation by LE AGENT? as opposed to someone else not acting as LE agent
4) Was there a VALID WAIVER? Prosecution must prove the intentional relinquishment of a
known right/privilege. Knowing, intelligent & voluntary waiver
a. MW & waiver is sufficient to demonstrate waiver of 6th Am rights
i. Police ploy suppressing info that Def had been charged + telling Def that he
wasn’t a suspect = prevention of knowing waiver (People v. Engert)

REMEDY: Statements made in violation of 6th Am are suppressed for the case in chief
- IMPEACH? YES: Statements in violation of 6th Am at trial: can be used to impeach
ON APPEAL: Harmless Error: Prosecution must be able to show, beyond reasonable doubt, that the
erroneously admitted evidence was harmless, otherwise conviction reversed.
Kroeber Outline, Summer 2009 6 of 13

Miranda: When Miranda Warning(MW) required

RULE: Miranda rule applies once Def is taken into custody, and any statement taken w/o a
knowing, intelligent & voluntary waiver cannot be used in the prosecution’s case in chief,
unless one of the exceptions applies.
PURPOSE: MWs help to mitigate the coercion inherent in LE interrogation scenarios, to help
prevent self-incrimination in violation of 5th Am prohibition against it.
1) Is the Def in CUSTODY?
a. Formal arrest or restraint on freedom of movement of the degree associated w/formal
arrest (Yarborogh v. Alvarado)
b. Objective test: How would a reasonable person in the suspect’s shoes view the situation
2) Is it INTERROGATION? Objective test
a. Express questioning or its functional equivalent.
i. *LE actions reasonably likely to elicit an incriminating response
3) Was the MW given?
a. Proper format: essential content of the warnings (right to silence, right to attny, etc.)
as described in Duckworth v. Egan
4) Was there a valid WAIVER of M rights? Knowing, intelligent, voluntary
a. Burden of proof: Show by preponderance of evidence that there was a valid waiver.
b. LE verification: Do you understand each of these rights? Having these rights in mind,
do you wish to talk to me now?
c. Cts split: Is silence sufficient?
i. Silence = an implied waiver
ii. Silence not sufficient: Affirmative act required to show waiver
5) Were M rights asserted?
a. Right to silence: Questioning again after Def first asserted M rights & LE gave 2nd
MW may be ADMISSIBLE IF SUFFICIENTLY ATTENUATED to appear to be a separate
instance from the first interrogation, rather than a continuation of the first.
i. Factors to consider:
1. Passage of time between 1st questioning attempt (at wh/M rights
were asserted) & 2nd questioning
2. 2nd questioning about a different crime (vs. same crime)
3. 2nd questioning in different location
4. 2nd questioning by different officer/LE agency
b. Right to counsel: Edwards: Def is not subject to further interrogation until counsel
has been made available to him, UNLESS the Def himself initiates further
communication w/LE.
i. Questioning again on same crime w/o attny, after right to counsel asserted,
is NOT allowed (even if 2nd MW given & waived).
Kroeber Outline, Summer 2009 7 of 13

ii. Questioning again on different crime + by different agency + 2nd MW +

waiver = NOT allowed. (AZ v. Roberson, following Edwards)
iii. Request for counsel at arraignment of first crime + Questioning again on
different un-charged crime = YES allowed. b/c Edwards only applies when Def
has expressed desire for a particular type of lawyerly assistance – aid during
custodial interrogation – vs. aid at time of charge (McNeil v. Wisconsin)

EXCEPTIONS: MW not needed if…

1) UNDERCOVER AGENT: MW not needed b/c if Def doesn’t know he’s being interrogated by
LE officer, then the evil which the MW exist to mitigate isn’t present & MW wouldn’t serve
its purpose.
2) PUBLIC SAFETY: Where reasonable officer would believe public safety is in danger
a. E.g., questioning to locate gun immediately after shooting)
3) MERELY INVESTIGATORY STAGE: Qs during detention (before point of custody) don’t
require MW
a. E.g.: traffic stop
4) ROUTINE BOOKING QUESTIONS: Qs reasonably related to LE’s administrative concerns don’t
require MW.
a. E.g.: What is your home address, what is your height/weight, etc.
b. Exception: Qs that require a “testimonial response” are subject to MW requirement

REMEDY: Exclusion of the statement from the case in chief. Other evidence (physical & verbal)
discovered pursuant to statement obtained in violation of M rights is still admissible (Patane).
o Note: Physical & verbal evidence excluded if: restatement of confession after
purposeful LE misconduct (Seibert – you can’t question w/o MW to obtain a
confession, then re-question w/MW to get the same confession & claim that you’re
honoring the suspect’s constitutional rights)

IMPEACHMENT: Statements taken in violation of Miranda may be used to impeach.

ON APPEAL: Subject to harmless error test

…
Kroeber Outline, Summer 2009 8 of 13

5th Am / 14th Am DP VOLUNTARINESS

RULE: Use of coerced/involuntary statements is barred in ALL criminal proceedings (including to

impeach). Confession obtained by threats/ coercion/ serious deception/ promises of
leniency offend fundamental notions of fairness.
BURDEN OF PROOF: Prosecution must prove that the statement was voluntary by a preponderance
of the evidence.

PURPOSES:
1) Preservation of individual freedom of choice
2) Interest in reliable, trustworthy evidence
3) Deter coercive police methods: prevent fundamental unfairness in use of evidence

SUBJECTIVE TEST: Given the Def’s characteristics, WAS THE DEF’S WILL OVERBORNE?
Factors:
1) Age
2) intelligence level
3) experience w/legal system
4) Intoxication (not dispositive, but relevant)
5) Mental illness
6) Sleep deprivation
7) Language barriers
8) Threats against Def/Def’s family
9) Manipulating religious beliefs
10) Length of interrogation
11) Promises of leniency: RULE: To exclude the statement, LE’s Promise m/b a SUFFICIENT
INDUCEMENT TO BE THE MOTIVATING CAUSE OF THE CONFESSION (e.g., quid pro quo).
Merely promising something doesn’t render statement involuntary.
12) ***MW alone not sufficient to show voluntariness

REMEDY: Involuntary statement can’t be used at trial at all (not even to impeach).
- ***Even if statement found to be voluntary, still can challenge the evidentiary reliability of
the statement w/the jury

ON APPEAL: Harmless error test: Harmless beyond a reasonable doubt

Kroeber Outline, Summer 2009 9 of 13

Witness IDs: Photo arrays; line-ups; courtroom IDs

6th Am Right to Counsel at ‘critical’ stages of adversarial proceedings
6th Am rt to counsel Attaches after charged.

YES right to counsel:

1) Physical lineup after charge: b/c fungible (can’t be reproduced/reenacted later at trial) &
b/c of risk of LE persuasion of witnesses… Def must rely on counsel being present to know
the propriety/process for challenging at trial
NO right to counsel:
1) Physical lineup prior to charge: b/c no adversarial proceedings yet & ∴ Def can’t be forced
to participate, ∴ Def gives voluntary consent to expose self
2) Photo array: b/c not fungible (can be re-enacted at trial); & b/c Def not present, ∴ no need
for assistance from counsel

REMEDY: Exclude the ID testimony at trial

5th Am / 14th Am DP

RULE: ID evidence m/b excluded IF the ID procedures were so unnecessarily suggestive as to give
rise to a high probability of irreversible mis-ID & thereby prevent a fair trial.
1) State action?
2) Procedural impropriety?
a. Dissimilar comparisons in lineup/photo array
b. Exposure to Def in courthouse or other setting indicating Def is a criminal
e.g.: Stovall v. Denno: showing Def in handcuffs & alone to witness in hospital bed not improper,
since witness was the only person who could exonerate the suspect; she could not go to the
police station for the usual lineup, and there was no way of knowing how long she would
live

REMEDY: Exclude the ID testimony at trial

EXCEPTION to REMEDY: INDEPENDENT ORIGIN

At hearing for defense motion to exclude…

EXCEPTION: Evidence is IN if prosecution can prove that witness testimony will be based on his/her
recollections of observance of the crime itself, rather than on the improper ID procedure

ON APPEAL: Harmless Error: Error is harmless if there is substantial other credible evidence in the
record to support conviction
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6th Amendment: Right to assistance of Counsel AT TRIAL STAGE

RULE: The right to counsel attaches when adversarial judicial proceedings have begun against the
Def (e.g., at time of charge). After that point LE cannot interrogate Def in the absence of
either an attorney OR a knowing, intelligent, & voluntary waiver of the right to counsel.

Purpose of the RULE: To safeguard the charged defendant’s decision to deal with the state only
through the medium of counsel – to assure the assistance of counsel for his defense as
required by the text of the 6th Am.

Violated via…
1) DEPRIVATION OF COUNSEL:
a. Retained counsel: RULE: Denial of assistance of retained counsel on any issue in any
criminal trial is a per se violation of DP fundamental fairness.
b. Appointed counsel:
i. AT TRIAL: RULE: Ct is constitutionally required to appoint counsel for indigent
Defs when
1. Charged w/any felony; OR
2. In any criminal case in wh/actual jail time will be imposed
a. Suspended sentences
b. Enhanced sentence for recidivism in counseled felony conviction
subsequent to prior validly unconcealed misdemeanor conviction
(Nichols)
3. ***Calif RULE: free counsel appointed for all felonies & misdemeanors
ii. ON APPEAL:
1. In states w/Discretionary appeal: RULE: No right to appointed counsel for
appeals that are a matter of judge’s discretion
a. Ross: b/c no constitutional right to appeal in the first place.
2. In states w/First appeal as a matter of right: RULE: Denial of counsel to
indigent Defs based on judge’s discretion for appeal as a matter of right is
a violation of DP, based on EqP analysis
a. Douglas v. Calif: type of justice received by shouldn’t depend on
size of wallet.
c. Capital Cases: In capital cases, appointment of counsel is a DP requirement from the
point of arraignment through trial (b/c arraignment is a ‘critical stage’)
d. REMEDY: Automatic reversal
2) WRONGFUL DENIAL OF REQUEST TO SELF-REPRESENT:
a. RULE: Def has right to act as own attorney, but not an absolute right
i. Reasoning: right to decide for self whether assistance of counsel is beneficial to
own defense; right to be free from unwanted gov’t-required ‘assistance’
b. Right to self-rep is dependent upon:
i. Timely request
Kroeber Outline, Summer 2009 11 of 13

ii. Mentally competent (active DSM-diagnosed mental illness excludes right to self-
rep). Presence of mental illness requires thorough inquiry by ct regarding
whether Def is competent
iii. Refraining from major disruption/obstruction of court processes
c. STANDBY COUNSEL:
i. Appointment at discretion of judge: No violation if purpose of appointment is to
relieve judge of need to explain & enforce basic rules of protocol or assist Def in
overcoming routine obstacles to Def’s clearly stated goals
ii. RULE: Def’s right to self-rep is only preserved IF Def preserves ‘actual control’
over the case. Participation by standby counsel w/o Def’s consent should not be
allowed to destroy the jury’s perception that the Def is representing himself.
iii. Standards for Standby counsel behavior:
1. In presence of jury:
a. Once Def invites/agrees to substantial participation by standby
counsel, subsequent participation by counsel must be presumed
to be w/Def’s acquiescence, until Def expressly & unambiguously
renews his request that standby counsel be silent.
2. Outside presence of jury:
a. Def addresses court on own behalf
b. Disagreements btwn Def & standby counsel resolved in favor of
Def whenever the matter is one that would normally be left to
discretion of counsel
d. HYBRID COUNSEL: No constitutional right for Def to act as co-counsel
e. REMEDY: Automatic reversal
3) INEFFECTIVE ASSISTANCE OF COUNSEL:
a. RULE: To show that 6th Am right ot counsel was violated, Def must show that both…
i. Performance of trial counsel fell below the level of reasonable effective
assistance (// to professionals standards)
1. Counsel’s duties to Def:
a. Avoid conflicts of interest
b. Confidentiality
c. Advocate Def’s cause:
i. Consult w/Def
ii. Keep Def informed
iii. Modicum of skill/knowledge so as to render the trial a
reliable adversarial testing process
2. Failure of this prong may trigger a DP challenge, based on question of
fairness of trial
ii. Prejudice: But for said poor performance, there is a reasonable probability that
the result would’ve been more favorable to Def
1. Charge; verdict; sentencing
iii. Standard of Review: Judge s/b highly deferential to counsel’s discretion
Kroeber Outline, Summer 2009 12 of 13

Eq Protection/ DP at Trial: $$$ Right to free “basic tools” of adequate defense or appeal
Ake v. Oklahoma: Basic tool = a resource w/o which the defense fails
RULE: Indigent Defs must be provided the “basic tools” of an adequate defense or appeal, at both
the guilt phase & penalty phase.
Is it a basic tool? Balance…
 Interests of the Def & State in an accurate hearing; vs.
 State’s fiscal interest
RULE: Where the potential level of enhancement of accuracy of jury’s determination is “dramatic”
& where interest of state &Def in an accurate proceeding is “substantial”, the state’s fiscal
interest must yield.

…
Kroeber Outline, Summer 2009 13 of 13

Exclusionary Rule / Fruit of the Poisonous Tree:

Judicially created remedy designed to safeguard Constitutional DP rights via deterrent effect,
rather than a personal right of the aggrieved party.
RULE: Whether the evidence obtained in violation of rights is admitted is based on balancing…
 Need to deter THIS LE agency from misconduct (flagrancy, etc.); vs.
 Cost to society of the loss to the trier of fact of the relevant evidence

Applies to:
 4th Am violation
 5th / 14th Am DP violation
 6th Am right to counsel violation
Does NOT apply to: 5th Am / Miranda violation (remedy for Miranda violation = exclusion of the
statements, not of physical evidence derived from the statements)

Applies to:
1) Civil forfeiture hearings generally (e.g., liens)
Does NOT apply to:
1) Civil forfeiture hearings of an agency other than the one who did the improper seizure (b/c
the exclusion would punish/deter the wrong LE agency)
2) Probation & Parole violation hearings
3) Physical evidence derived from Miranda violations
4) Deportation hearings
5) Grand jury proceedings
6) ***Evidence obtained via LE’s good faith reliance on judicial branch (clerk) to seize w/o
warrant, b/c would have no deterrent effect on the gov’t actor who made the mistake
(judicial clerk) [AZ v. Evans]

Per Se result of balancing test:

RULE: Evidence obtained as a direct result of illegal conduct by gov’t actors is inadmissible in a
criminal trial against the victim of the misconduct (b/c otherwise violation of DP)
EXCEPTION: Evidence NOT EXCLUDED IF it has been obtained by a means suff’tly distinguishable to
be purged of the primary taint
1) Inevitable Discovery: evidence would’ve been discovered anyway, by legal means
2) Attenuated taint? Factors:
a. Passage of time: btwn violation & obtaining the evidence
b. Length of causal chain: more intervening factors, more attenuation
c. Independent act of free will, especially by the Def (Ceccolini)
d. Flagrancy of violation: less flagrancy more likely to be more attenuation
e. Nature of evidence: statement = more likely to be attenuated; physical evidence =
less likely to be attenuated
f. Miranda warnings: not dispositive, but more likely to find attenuation
3) Independent Source: evidence obtained/available another way
a. NY v. Harris: statement given outside home after warrantless entry into home to
make routine felony arrest is admissible (where arrest based on PC & Def got MW &
waived). b/c of either independent source or attenuation