Criminal Procedure Outline #2

 

4th amendment checklist

1. Does D have standing?
2. Did the police activity in question implicate a person, house, paper or effect?
3. Did it constitute a search or seizure?
4. Was the search or seizure reasonable or unreasonable?
1. Did the police have adequate grounds to conduct the search or seizure?
2. Did the police act on the basis of a warrant?
3. If no, did they have a valid reason for failing to obtain the warrant?
5. If the search/seizure was unreasonable
1. Was it conducted on the basis of a warrant later declared invalid?
1. Objective good faith belief exception
2. If the ER applies, is there evidence that is a fruit of the poisonous tree?
1. Exceptions
1. Inevitable discovery
2. Attenuated connection

 

Search

1. REP TEST:
1. Subjective: individual must have exhibited an actual subjective expectation of privacy.
2. Objective: the expectation must be one that society is prepared to recognize as legitimate.
2. No REP (not a search)
1. False friends
2. Wired informants
3. Open fields
1. Proximity to house
2. Included within any enclosures surrounding house
3. Nature of the use
4. Steps taken to protect from observation.
4. Technology: does it allow govt to see what would otherwise be invisible to the naked eye, even in in daylight, from a lawful vantage point.
1. Pen registers
2. Binoculars/flashlights
3. Beepers
1. No information that could not be secured through visual surveillance
4. Aerial surveillance
1. Navigable airspace
2. Physically nonintrusive manner
3. Does not reveal intimate activities
5. Dog sniffs
6. Inspection of garbage placed on curbside
3. REP (Search)
1. Thermal imaging

 

Seizure

1. A seizure of property occurs when there is a meaningful interference with an individual’s possessory interest on that property.
2. Electronic devices
1. Karo: no seizure because can at time of installation didn’t belong to D
3. Seizure of persons: officer by means of physical force or show of authority has in some way restrained the liberty of a citizen.
4. Objective test: a person has been seized if a reasonable person would have believed he was not free to leave.
5. Officer’s subjective intent to forcibly detain suspect is irrelevant.
6. Factors
1. Threatening presence of several officers
2. Display of weapons by officer
3. Physical touching
4. Use of language/tone of voice indicating compliance may be compelled
7. Not a seizure
1. Brief questioning
2. Request for ID
3. Chasing a suspect (Hodari)
8. Officers may seize
1. Fruit
2. Instrumentalities
3. Contraband
4. Mere evidence

 

PC

1. PC warrants a reasonable person in believing
1. Arrest
1. An offense has been committed
2. Person to be arrested committed it
2. Search
1. A specifically described item subject to seizure
2. Will be found in the place to be searched
3. Objective but takes into account experiences and expertise of officer
2. Aguilar-Spinelli
1. Basis-of-knowledge
2. Veracity
1. Credibility of informant
2. Reliability of information
3. Gates
1. Totality of the circumstances test
2. Aguilar factors remain relevant in assessing the value of an informant’s tip
4. Camara: Administrative searches
1. PC to issue warrant if there are reasonable legislative or administrative standards for conducting an inspection.
2. No individualized suspicion
3. General factors
1. Time since last inspection
2. Nature of the building
3. Condition of entire area searched
5. Terry
1. Reasonable suspicion

 

Arrests

1. Police may make felony arrest without a warrant (Watson)
2. Misdemeanor arrest requires warrant unless committed in officer’s presence
3. All arrests require PC that the suspect has committed or is committing a crime
4. May arrest in a public place w/out warrant even if practicable to secure one
5. May not arrest person in own home without arrest warrant absent exigent circumstances or consent (Payton)
6. May not arrest person in other’s home without a search and possibly arrest warrant, absent exigent circumstances or valid consent.
7. Warrantless arrest issue arises only when govt seeks to introduce evidence seized during arrest.
8. Post-arrest conviction usually inadmissible if the product of warrantless arrest.
9. Nonconsensual entry requires warrant and reason to believe the suspect is within
10. Exigencies justifying warrantless entry
1. Hot pursuit
2. PC to believe that if they do not enter immediately
1. Evidence will be destroyed
2. Suspect will escape
3. Harm will result to police or others
11. Arrest in third person’s home (Steagald): requires search warrant
12. Executing arrest warrant
1. Knock-and-announce requirement
2. Use of force: deadly force unreasonable unless
1. PC to believe suspect poses a significant threat of death or serious physical injury to officer or others
2. Officer reasonably believes such force is necessary to make the arrest
3. Officers actions must be objectively reasonable in light of facts and circumstances
•  

Search warrants

1. Warrant process
1. Oath or affirmation
2. Neutral and detached magistrate
3. Particularity
1. Place to be searched
2. Person or things to be seized
2. Executing a warrant
1. Freezing the situation: warrantless temporary seizure reasonable if
1. PC to conduct a search
2. Good reason to fear that unless restrained D would destroy evidence
3. Reasonable efforts to reconcile law enforcement needs with personal privacy demands
4. Limited length of time of restraint
2. Time of execution: before PC becomes stale
3. Knock and announce
1. Except: reasonable suspicion that that knocking and announcing under the particular circumstances would be futile
4. Search of persons
1. Public places
1. Need PC to search others on premises
2. Reasonable suspicion person is armed and dangerous to perform Terry frisk
2. Private homes
1. Some: automatically allowed to frisk for weapons
2. Some: particularized suspicion that the person is armed and dangerous
3. Detention during searches: a warrant to search for contraband includes the limited authority to detain all occupants of the premises to be searched while search is executed.
5. Scope of the search
1. Entire area in question including containers, as long as the containers are large enough to contain the object of the search.
2. Plain view doctrine: may seize any item if
1. Item seen while searching in a place which they have authority to search
2. Item is located in such an area
3. PC to believe it is subject to seizure

 

Search incident to arrest

1. Full custodial arrest
1. Arrestee’s person (doesnt have to be contemporaneous)
2. Area within arrestee’s immediate control (contemporaneous to arrest)
3. Closets and other spaces immediately adjoining place of arrest from which attack could be launched. (contemporaneous)
2. No PC needed to conduct the search, but is needed to seize the evidence found during the search
3. The 4th amendment does not prohibit arrest of person for minor fine-only offense
4. Scope
1. Arrestee’s clothing and containers therein
2. Containers immediately associated with person (purse, bag) as long as they are big enough to conceal a weapon or evidence.
5. Chimel: Area within immediate control
1. Might lunge to for weapons or to destroy evidence
2. Includes all containers that could contain a weapon or evidence
3. Area moves as suspect moves
4. Need warrant to search entire house
6. Belton: Automobiles
1. Contemporaneous to arrest
2. Search of passenger compartment
3. All containers whether open or closed
4. No trunk/engine compartment search
5. Divided court on whether locked containers may be opened
7. Protective searches
1. No PC/RS to look in closets and other spaces immediately adjoining place of arrest
2. Spaces must be large enough to hold human being
8. Robinson: traffic arrest
1. A custodial arrest based on PC is a lawful intrusion under 4th amendment
2. That intrusion being lawful, search incident to arrest requires no addtl justification

 

Searches of cars

1. Incident to lawful arrest
2. Community caretaking function of inventorying after towing from public road
3. In limited circumstances when stopped for violating traffic law
4. Search at the scene: immediate warrantless search if PC to believe it contains
1. Contraband
2. Fruits
3. Instrumentalities
4. Evidence
5. Applies if
1. Officer stops car on highway
2. Vehicle is readily capable of use on the highway
6. Searches away from scene
1. Warrantless search that would be valid at the scene is also permitted to take place  shortly thereafter.
1. May search it at a lot a day or a few days later
2. A year later is unreasonable
7. Scope
1. Defined by object of search and places in which there is PC to believe it may be found
2. If PC to search at scene of stop, may constitutionally do so later at station house w/out warrant.
8. Reasons for automobile exception
1. Mobility
2. Extensive licensing requirements and regulations
3. Rarely a repository for personal belongings
9. Motor homes
1. Location
2. Readily mobile or up on blocks
3. Licensed
4. Connected to utilities
5. Convenient access to public road
10. Containers
1. Containers may be searched without a warrant during an otherwise lawful automobile exception search.
2. If containers may be searched at the scene, they may be searched and seized without a warrant shortly thereafter at the police station.
3. Applies in two general circumstances
1. As part of valid warrantless search of car, if police come across container, they may open without warrant so long as it’s big enough to hold criminal evidence sought. No PC as to container needed.
2. PC to believe a certain container will be found in the car, May conduct warrantless search and open container without warrant.

 

Plain view

1. Item is in plain view if
1. Officer observes it from lawful vantage point
1. Execution of valid search-warrant
2. In-home arrest
3. Search justified by exception to warrant requirement
4. From activity not constituting access
2. Right of physical access to it
3. Nature of the object is immediately apparent
4. Need not be inadvertent
2. Plain touch if
1. Right to touch the object
2. Upon tactile observation was immediately apparent

 

Inventory searches

1. Inventory of lawfully impounded car is reasonable under the 4th Amendment even though conducted without a warrant, in the absence of PC, or any basis for believing, evidence of a crime will be discovered.
2. Reasonableness focuses on
1. Need to protect police and public from dangerous instrumentalities
2. Protect against claims of lost or stolen property
3. Protect owner’s property while in custody
3. Must be administrative in nature; sole purpose may not be to investigate crime
4. Must be routine in nature
5. Must be nondiscretionary
1. May allow some discretion as long as on the basis of standard criteria and on the basis of something other than suspicion of evidence of criminal activity
6. Containers may be opened without warrant or PC
1. Dissent as to whether officers must be following procedure mandating opening
7. Arrest inventory
1. Prevent theft of arrestee’s property
2. Protect police from theft claims
3. Prevent arrestee from carrying items into the jail

 

Consent

1. Exception to the warrant requirement
2. Ineffective unless done voluntarily
3. Prosecutor must prove by preponderance of the evidence
4. No requirement of awareness of right to refuse consent
5. Third party consent: Valid if they have common authority
6. Apparent authority: objective test – would a reasonable person have thought the consenting party had authority over the premises

 

Terry

1. Only purpose is to determine if suspect is armed
2. Pat-down of outside of suspect’s clothing
3. Reasonable suspicion
1. Less than preponderance of evidence
2. Minimal level of objective justification
3. May be based on hearsay
4. Particularized and specific
4. Flight is RS if:
1. High crime area
2. Motivated by presence of police
5. Race impermissible if only factor, but may be one factor to consider
6. Length of detention
1. Officers pursued investigation in diligent and reasonable manner
2. Method of investigation likely to confirm or dispel suspicions
3. Detention lasted no longer than necessary
7. Forcible movement: may be tantamount to arrest
8. May require removal of driver and passenger from car pursuant to lawful stop
9. Method no more intrusive than necessary
10. If PC for believing object felt is contraband, may remove as part of plain-touch
11. Automobile frisks
1. Search of passenger compartment
2. Limited to areas where weapon may be placed or hidden
3. Reasonable belief suspect is dangerous
12. Protective sweeps
1. Incident to arrest
2. For safety of officers
3. Cursory inspection of places in which person might be hiding
4. Reasonable suspicion area harbors a person posing a danger to officers
5. No reasonable suspicion of spaces immediately adjoining place of arrest
13. Property
1. May temporarily detain luggage without a warrant if RS it contains narcotics

 

Non-criminal searches

1. Administrative searches
1. No particularized suspicion of wrongdoing
2. Reasonable
3. Warrantless searches if closely regulated industry
1. Administrative scheme must further substantial interest
2. Warrantless inspection necessary to further regulatory scheme
3. Adequate substitute for a warrant
1. Rules limiting discretion of inpectors
2. Border searches
1. Warrantless suspicionless searches are reasonable at the border
2. May be further detained if RS of wrongdoing
3. Roving border patrol
1. Traditional 4th amendment standards
2. May detain briefly if RS of illegal presence in country
4. Fixed checkpoints
1. No individualized suspicion
2. Any detention beyond questioning regarding citizenship requires PC/consent
3. Vehicle search and seizure
1. License and registration inspections
1. Routine checks are permissible if safeguards are devised
1. Questioning all oncoming traffic
2. Sobriety checkpoints
1. Routine checks permissible
2. Permissible purpose of ensuring roadway safety
3. Drug checkpoints
1. Not permissible
2. Primary purpose is to detect evidence of criminal wrongdoing
4. Special needs searches
1. Public school students
1. Reasonable grounds for suspecting search will turn up evidence student violated law/school rules
2. Not excessively intrusive in light of age and sex of student and nature of infraction
2. Drug and alcohol testing
1. Immediate goal must not be to generate evidence for law enforcement purposes
2. More likely to be favorable in highly regulated industry or where reduced expectation of privacy
3. In employment context, significant relationship between job responsibilities and concern of alcohol and drug usage
4. Individualized suspicion impracticable
5. No, or not much, discretion vested in agency in determining who should be tested
6. Substantial need vital to override privacy interests

 

Standing

1. D had REP in area searched
2. No standing for co-defendants
3. Testimony in favor of motion to suppress inadmissible against D as evidence of guilt
4. Overnight guest has REP in host’s home
5. Social or business guest may be able to challenge even if he doesnt stay over night
6. Automobiles
1. Non-owner occupant
1. May challenge if possessing exclusive dominion
2. May lack REP in certain areas of the car
7. May not challenge if no REP of privacy in area, although D has possessory interest in property seized
1. D placed drugs in X’s purse
2. No REP in X’s purse
8. Seizure
1. Car occupant may not have standing to challenge search of car, but if stop leading to discovery of evidence was unlawful, may have standing to challenge seizure of his person.

 

Exclusionary rule

1. Purpose
1. To deter
2. Does not apply
1. Civil suits
2. Deportation hearings
3. Habeus corpus (limited applicability)
4. Non-trial proceedings
1. Grand jury
2. Preliminary hearings
3. Bail proceedings
4. Sentencing
3. Good faith exception: evidence obtained pursuant to a search warrant later declared invalid is admissible if reasonably well-trained officer would have believed the warrant was valid.
1. Exception not applicable if:
1. Affiant knew statements were false or recklessly disregarded truth
2. Issuing magistrate abandoned judicial role
3. Warrant is so lacking in indicia of PC as to render it belief in its existence unreasonable
4. Warrant is so facially deficient that executing officer cannot reasonably presume it to be valid.
2. Does not cover improperly executed warrants (ie, go outside scope of warrant)
3. Applies to clerical errors by court clerks in non-warrant circumstances.
4. Fruit of the poisonous tree
1. Qualifications
1. Independent source
1. Evidence discovered for the first time during lawful police activity
2. Evidence first uncovered unlawfully, but later obtained in a lawful manner independent of the original discovery
1. Subjective: not motivated to get warrant based on initial illegal entry
2. Inevitable discovery
1. Would ultimately or inevitably have been discovered by other means
2. Preponderance of evidence
3. Attenuated connection
1. Temporal proximity
2. Intervening events
1. Statement obtained after unlawful entry into home is admissible
3. Flagrancy of the violation
4. Nature of derivative evidence
2. There is no Miranda poisonous tree
4. Impeachment exception: may use evidence obtained in violation of 4th A to impeach D on direct or cross-examination.

 

Miranda

1. Interrogation
1. Coerced confessions not admissible for any purpose
2. In absence of miranda warnings, a confession is per se unconstitutionally compelled
3. Express questioning
4. Functional equivalent
1. Subjective: should officer have realized words or actions were reasonably likely to produce incriminating response
1. But any knowledge officer had about susceptibility of D to respond to form of questioning is a factor.
5. Not required if person being questioned does not know questioner is law enforcement officer.
6. Not applicable to real or physical evidence
1. Blood sample or voice exemplar
2. Custodial: deprived of freedom of action in significant way
1. Objective
3. Required for any offense, even minor offense
4. Not required for a terry stop
5. Waiver
1. Will not be presumed form silence after warnings are given
2. Will not be presumed from the fact that a confession was actually obtained
3. Explicit statement not necessary
4. Express waiver followed closely by a statement could constitute a valid waiver
5. In at least some cases waiver can be clearly inferred from actions and words of person interrogated after warnings are given.
6. Elements of waiver
1. Voluntary
2. Knowing
1. Not constitutionally entitled to know counsel wishes to see him
3. Preponderance of evidence
4. Subjective
7. Right to remain silent
1. May interrogate about a different crime
8. Right to counsel
1. Not subject to further interrogation
1. Until counsel has been made available;
2. Or unless D initiates conversation
2. Bars questioning of any crime
3. Must unambiguously assert request for counsel
9. Public safety exception
1. Objectively reasonable need to protect the police or public from an immediate danger
2. Exigency requiring immediate action
10. Routine booking questions exception
11. Miranda exclusionary rule
1. Impeachment exception
1. May use confession obtained in violation of miranda to impeach D who testifies inconsistently at trial.
2. If obtained by compulsion, not admissible for any purpose
2. Fruit of the poisonous tree
1. Not applicable, or of limited applicability
2. Witness may be called to testify even if identity was a tainted fruit of the inadmissible statement

 

6th amendment right to counsel

1. Violated when accused’s own statement is used against him at trial
2. Only applies if adversary judicial procedures have commenced
3. Applies to deliberate elicitation
1. Govt acts w/purpose to elicit incriminating information from accused re: pending charges
2. Purposely sets up encounter in which incriminating information is likely to be elicited
3. Exploits an account set up by the accused w/the agent
4. Must take some action beyond mere listening
4. If accused is aware he’s dealing with law enforcement
1. Inadmissible in case in chief any deliberate elicitation after commencement of adversary proceedings unless;
1. Lawyer present
2. Or, knowing and voluntary waiver of right to counsel
5. If covert police activity
1. There can never be a knowing and voluntary waiver
6. Offense-specific
1. Test: whether each provision requires proof of a fact which the other does not
7. Waiver
1. Voluntary
2. Knowing
8. Invocation of request for counsel
1. No further questioning until D consults with counsel
2. Unless D initiates further communications
3. Bars counsel-less interrogation after 6th attaches only if D has requested the help of a lawyer
9. Fruit of the poisonous tree applies

 

6th amendment v Miranda

1. When the right attaches
1. 6: when adversary proceedings have begun
1. Offense-specific
2. Prohibits deliberate elicitation
1. Intentions of officer
2. Proof of deliberate misconduct
2. 5: not so limited, may attach earlier
1. Applies to all offenses
2. Applies during interrogation
1. Focuses on suspect
2. Objective test based on finding of negligence by officer
3. Undercover agents
1. 5: does not apply
2. 6: applies to deliberate elicitation by undercover agents
2. Custody
1. 5: not unless suspect is in custody
2. 6: not so limited, may attach under circumstances in which 5 does not apply
3. Waiver
1. 5: not required to cease interrogation unless request for counsel is reasonably interpreted as expression for assistance in dealing specifically with custodial interrogation by police
2. 6: not currently limited in this manner
4. Once asserted
1. 5: may not be approached regarding any other offense unless counsel is present
2. 6: does not bar questioning regarding uncharged offenses
5. Exclusionary rule
1. 5: not applicable
2. 6: applicable

 

Eyewitness identification

1. Right to counsel
1. Right to counsel at any corporeal identification procedure conducted after indictment or equivalent adversary procedures have commenced against D.
2. If counsel is not present, or presence is not waived, evidence of results of lineup not admissible at trial.
3. Also prohibited from obtaining in-court identification unless
1. Clear and convincing evidence
2. In-court identification not a fruit of the tainted out-of-court procedure
4. Factors
1. Prior opportunity of witness to observe criminal act
2. Discrepancy between pre-lineup description and D’s actual description
3. Identification prior to lineup of another person
4. Identification of picture of D prior to lineup
5. Failure to identify D on prior occasion
6. Lapse of time between alleged act and lineup identification
2. Counsel primarily present to observe and cross-examine eyewitness at trial
3. Right to counsel not applicable to non-corporeal identification procedures
4. Due process of law
1. Exclusion of trial evidence of pretrial identification of D if based on totality of circumstances, procedure used was
1. Unnecessarily suggestive
2. Conducive to mistaken identification
2. Applicable regardless of whether corporeal or non-corporeal
3. Regardless whether before or after formal charges were initiated
4. Regardless whether or not counsel was present
5. Ultimate issue is likelihood misidentification occurred. Factors in determining reliability
1. Opportunity of witness to view criminal at time of crime
2. Degree of attention
3. Accuracy of prior description of criminal
4. Level of certainty demonstrated at confrontation
5. Length of time between crime and confrontation
6. If out-of-court identification offends due process
1. Must be excluded at trial
2. No in-court identification unless
1. Out-of-court procedure did not create a very substantial likelihood of irreparable misidentification.

 

Right to counsel

1. Applicable to both felonies and less serious offenses if there is potential jail time
2. Appeals
1. 6th not applicable
2. 14th EP/DP applies
3. If transcript required, state must furnish it at their expense for indigents
4. State required to provide counsel to indigent on first statutory appeal of right
3. Self-representation
1. Constitutional right to knowingly and voluntarily waive right to counsel and represent herself
2. D does not need to be informed of right to self-representation unless D clearly indicates she is considering the option
3. Must be permitted as long as mentally competent to give up right to counsel
1. Must be made of dangers and disadvantages
4. Request must be made before trial and sufficiently early to not disrupt trial
5. Not entitled to hybrid representation
6. May appoint standby counsel over D’s objections
1. To assist D if she seeks help
2. To take over if self-representation must be terminated
3. Right of self-representation not violated unless standby counsel substantially interferes with significant tactical decision of D or destroys jury’s perception that D is representing herself.
7. D assumes the risk of self-representation – cannot complain of ineffective assistance of counsel 
8. If court refuses self-representation or trial right is violated by standby counsel conviction must be reversed
4. No right to choose preferred attorney
5. Right to effective assistance of counsel
1. Ineffective assistance
1. Whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
2. Deficiency of representation: errors were so serious that counsel was not functioning as the counsel guaranteed by 6th amendment
1. Whether counsel’s assistance was reasonable considering all the circumstances
2. D must identify with precision acts or omissions claimed to be constitutionally unreasonable
3. Strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance
4. Deficiency is shown if D proves lawyer frequently slept during trial
3. Prejudice
1. Errors were so serious as to deprive D of a fair trial
2. Reasonable probability that but for counsel’s unprofessional errors result would have been different.
3. Assume a reasonable decisonmaker
4. Prejudice presumed
1. Actual/constructive denial of assistance of counsel
2. Certain forms of state interference with counsel’s assistance
3. Representation by lawyer with conflict of interest
5. D suffers prejudice if atty repeatedly asleep at trial for periods of time in which D’s interests were at stake.
6. A person who is factually guilty can prove prejudice if she can demonstrate reasonable probability that that but for counsel’s errors, her guilt would not have been proven on the basis of legally admissible evidence.
4. Violation of ethical cannon does not by itself make out a violation of the 6th amendment

 

10 exceptions to the warrant requirement

1. Search incident to lawful, custodial arrest
2. Consent of person controlling premises
3. Plain view
4. Automobile exception (need PC vehicle contains evidence of crime and exigent circumstances making warrant unfeasible)
5. Hot pursuit
6. Threatened destruction of evidence
7. Stop and frisk (PC not needed, need RS of criminal activity or threat of danger)
8. Protective sweep of premises incident to arrest (valid only on reasonable belief there may be someone on premises posing a danger to officers or others)
9. Inventory search
10. Regulatory (administrative) searches in the form of emergency inspections or inspections of highly regulated industries

 

Valid search of premises does not include people present unless

1. PC to arrest person on the premies, in which case may conduct search incident to arrest
2. PC to believe items in warrant are on bodies or clothing of those present
3. Reason to fear that those present may be dangerous (limited pat-down)
4. Search of the person is idtified on warrant and supported by PC

 

Pretrial ID violates DP if

1. Unnecessarily suggestive
2. Substantial likelihood of irreparable mistake in ID

 

Valid search warrant

1. Affidavit, signed, describing place to be searched and things to be seized
2. Recent facts sufficient to show PC to believe search will reveal items sought
3. Absence of any statement false or reckless
4. Submission of the affidavit to a neutral detached magistrate

 

Issues regarding pretrial ID

1. Suspect’s right to counsel under 6th A
2. Suspect’s DP rights, including right to counsel, under 5th and 14th A

 

Determining PC of informant information

1. Totality of the circumstances
1. Informant’s evidence in other cases
2. Informant’s status as member of reliable group
3. Clarity of detail
4. Declaration against interest

 

Ineffective assistance

1. Deficiency
1. objective
2. Risk of prejudice

 

Search

1. Police intrude on D’s REP
2. Expectation is actual and reasonable

 

Curtilage factors

1. Proximity of curtilage to residence
2. Whether included in enclosure around residence
3. Use of area
4. Preventive steps taken to prevent observation

 

Analyzing search

1. Was there a 4th amendment search
1. Who did the searching
2. Did D have actual and REP as to matters/items searched
2. Was there a search warrant
1. Was it legally obtained?
2. Was it valid?
3. If no, did it fit within search warrant requirement
3. Was the search valid with or without the warrant and did it exceed  its permissible scope
4. Is the proper person challenging the search

 

Automobile exception

1. Warrantless search of vehicle with PC to believe it contains evidence of crime
1. Any vehicle capable of moving
2. Entire car including closed containers
3. Not required that seizure and search be contemporaneous
1. May be seized and searched later without a warrant
4. Mobile so evidence may be destroyed or removed
5. Lesser expectation of privacy
6. If car is impounded, no PC to search

 

Interrogations and confessions

1. Was there an interrogation?
1. If no confession volunteered = admissible
2. Was suspect formally charged with crime for which he is being questioned
1. If yes, 6th amendment right to counsel
3. Who did the questioning
1. Police or law enforcement
2. If no = admissible
4. Was questioner undercover agent?
1. If yes = no interrogation
5. Was interrogation custodial
1. If not, no mirandas = admissible
6. Was there more than one interrogation
7. Was suspect given mirandas before questioning
1. Did suspect effectively waive mirandas
1. Voluntary, knowing, and intelligent
2. Was suspect coerced
1. If yes = inadmissible
3. If no
1. May use for impeachment
2. May not use for case-in-chief
2. If no
1. Does public safety exception apply
1. If yes, was suspect coerced = inadmissible
2. If no, were questions routine booking questions
3. If no , and no mirandas = inadmissible

 

Evidence that may support finding of PC

1. Suspicious conduct
2. Admissions
3. Criminal record
4. Presence in high crime area
5. Physical evidence

 

To overturn warrant

1. Affiant included inaccuracy, misstatement, or lie in affidavit
2. Affiant did so recklessly
3. Inaccuracy is material

 

ER

1. Was evidence obtained in violation of 4, 5, 6th A
1. If no, not subject to ER
2. Is prosecutor seeking to admit evidence to impeach
1. ER does not apply
3. Does person have standing to challenge it?
4. Did police reasonably rely on facially valid warrant
1. If yes, good faith exception
5. Is there a valid overriding reason to admit the evidene
1. Independent source
2. Inevitable discovery
3. Attenuation