• Searches with and without warrants
• Right to an attorney
• Exclusion under the 4th, 5th, 6th and 14th amendments
• The Exclusionary Rule: evidence which is illegally obtained in violation of the Constitution is excluded from use in court.
• Solely a product of case law and is not contained in the Constitution.
• The US is the only country that uses it.
• First declared by US Supreme Court in 1914 case of Weeks v. US.
• Binding in federal cases only at that time.
• The “English Rule”-
• Prior to Weeks, most federal courts and states followed the “English Rule”.
• This was the traditional view.
• Although the offending officer might be disciplined, the evidence could be used in court.
• Mapp v. Ohio (1961)
• After Weeks, the states gradually began adopting the federal view.
• By 1961, about half the states had adopted the exclusionary rule.
• In Mapp v. Ohio, the US Supreme Court made the exclusionary rule mandatory for all states.
Exclusion under the 4th Amendment
The 4th Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and 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 person or things to be seized.”
• 2 fundamental 4th amendment rights:
• To be free from “unreasonable searches and seizures”.
• Both search warrants and arrest warrants require a showing of “probable cause” to be issued.
• Does the 4th amendment prohibit searches or
arrests without a warrant?
• No. It only prohibits unreasonable searches or arrests.
• If there is a warrant, it must be based on probable cause, but the 4th amendment allows exceptions to the warrant requirement for reasonable searches or seizures.
• Thus a search may be either
• Pursuant to a warrant, or
• Pursuant to a judicially recognized exception.
• Usually involves situations where obtaining a warrant is not practical.
• Searches with a warrant
• Presumed reasonable so the exclusionary rule does not apply
• Searches without a warrant
• May be later determined not to be reasonable so the exclusionary rule does apply
Searches with a warrant
• “Good faith” exception- the exclusionary rule does not apply if:
• The officers have a facially valid search warrant
• The officers are acting in good faith, and
• No material misstatements made in obtaining the warrant
• The warrant is executed properly
• Proper address and property sought
• Served timely by the appropriate officer
• Proper “knock-notice” given
• No excessive force used
• To be “facially valid”, a search warrant
• Be authorized by the proper official
• A full time judge, and not a subordinate judicial officer
• such as a commissioner, temporary judge, or a justice of the peace
• Be supported by affidavits under oath showing “probable cause” that the items sought are located in the premises to be searched
• Contain a specific description of the place to be searched and the property sought
• Confidential Informants
• Need not be named in the warrant
• Warrant must contain sufficient info so the judge can determine their reliability after considering the “totality of the circumstances”
Searches Without a Warrant
• Incident to a lawful arrest
• Consent search
• Vehicle search
• Plain View doctrine
• Open fields search
• Search by private parties
• Inventory search
• Pat down search
1. Search incident to lawful arrest (“Chimel”)
• Officer may search the immediate area within the arrestee’s reach for officer safety and destructible evidence at time of arrest.
• Only valid for a lawful arrest. If the arrest is later invalidated, so is the search.
• Must be done at the time of the arrest.
• No “bootstrapping”- items found in the search can not serve as the basis for the justifying arrest.
• Scope of area that may be searched
• Includes “lunge area”
• House: limited to room where arrest occurs and reasonable reach
• May include opening drawers and closets
• May make a “protective sweep” of other rooms for other persons if reasonable belief others may be present
• Auto: entire passenger compartment
2. Consent Search
• Prosecution has the burden of showing that
• Consent was voluntary, and
• Person giving consent has capacity to do so. May be either
• Actual authority, or
• Apparent authority, meaning that they appear to someone who could validly consent to the search
• Any owner or occupant may consent to search
• Consent will be valid against absent non-consenting occupant
• Consent may be
• Limited in scope
• Subject to restriction
• Revoked at any time
• Consent may be express or implied
• Mere submission to authority is not sufficient
• Court looks at the “totality of circumstances” in deciding voluntariness
3. Vehicle searches- the “Auto exception”
• Warrant for a vehicle need not be obtained if:
• The officer has probable cause to search the auto, and
• The vehicle is on public roads and moving or about to be moved, and
• A warrant can not be readily or practically obtained in a timely manner
• Scope of the search includes every part of the car
• Passenger compartment and trunk
• Closed containers in the car, including purses, suitcases, etc unless probable cause is limited
• “Vehicle” includes
• Mobile homes when in use on roads or readily capable of moving
4. Plain View Doctrine
• If evidence is in “plain view” such that no search in needed, it may be seized without a warrant.
• Officer must be able to view it from a location where he is legally allowed to be
• Incriminating character of the evidence must be apparent
• Officer must have lawful access to the item.
• Incidental discovery
• Items incidentally discovered in the course of a lawful search may be seized even though not the object of the search
• What constitutes a search?
• Moving an item is a search
• May not move to check serial numbers, etc. unless otherwise allowed to do so.
• Using a flashlight is not a search
5. Open fields searches
• 4th amendment is limited to “persons, houses, papers, and effects”.
• Thus it does not extend to all private property.
• Searches of open areas, even on private property, even without consent, are not constitutionally protected.
• “House” includes all the area within a fence surrounding the house.
• Garbage left out for pick up is not constitutionally protected.
6. Search by private parties
• 4th amendment prohibits government action only
• Searches by the following are not constitutionally protected (if not at the direction of government)-
• Private messengers or parcel services
• Private security officers
• Medical staff
• School officials are government officials, but have wider discretion
• Reasonable suspicion only required
• May require urine testing as a condition of sports participation
• May random test athletes
7. Inventory searches
• Auto exception does not apply to stored vehicles, but if vehicle is being impounded, it may be inventoried if:
• Local regulations or law require a routine inventory
• The inventory is in compliance with a standard practice
• Opening of closed containers may be allowed is part of the protocol
8. “Pat Down” search
• Officer may briefly detain and pat down outside of clothing for weapons only
• Must have a reasonable suspicion of criminal activity
• Less than probable cause is required since scope of search is limited
• Autos- if validly stopped, all occupants may be ordered out and patted down.
• Public transportation- luggage may be patted down
• “Plain feel”- if officer feels something else that he can identify as contraband, may be seized
• Manipulation of item for purpose of identifying is limited
Exclusion under the 5th Amendment
• 5th amendment actually contains 5 distinct rights:
• Right to Grand Jury Indictment for “infamous crimes” (felonies and some misdemeanors)
• Double jeopardy
• Self incrimination
• Due process
• Just compensation for eminent domain
• Privilege against self incrimination
• Privilege became mandatory for the states in 1964 case of Malloy v. Hogan.
• Confessions- the “free and voluntary” rule
• The privilege can be waived but confessions are only admissible if they are free and voluntary.
• Without fear, duress, or compulsion, and with full knowledge of the consequences
• State finding of voluntariness may be independently reviewed by federal court
• Prosecution has the burden of proving by a preponderance of the evidence
• Force may be overt or subtle
• Such as depriving of food, sleep, water
• Threats to prosecute a loved on
• Illegal detention
• Miranda rule
• A statement obtained after the suspect has been detained without Miranda is conclusively presumed not to be “free and voluntary”.
• Exact wording not required
• Applies only to custodial interrogation
• Public safety exception
• Statements elicited in violation of Miranda may be used where officer’s safety or the safety of others is in jeopardy.
Exclusion under the 6th Amendment
• 6th amendment has 4 distinct rights:
• Speedy and public jury trial
• Confront and cross examine witnesses
• Right to the subpoena powers of the court
• Assistance of counsel
• Assistance of counsel
• Applies at all “critical stages”
• Custodial interrogation (a Miranda right)
• When a suspect waives his Miranda rights, he is waiving both 5th and 6th amendment rights
• Line-ups after initiation of the proceedings
• But not in-field show-ups or investigatory line-ups
• California requires an attorney at line-ups before initiation also.
• Waiver of right to an attorney under Miranda
• May be either express or implied
• May be retracted at any time and questioning must stop
• May rights be waived later after initially being invoked?
• Yes, if the accused initiates the contact.
• No, if law enforcement initiates the contact.
Exclusion under the 14th Amendment
• Due Process clause
• Provides for freedom from governmental action except by “due process of the law”
• Brutal police conduct can be a violation of the “due process” clause.
• Evidence obtained by tactics that “shock the conscience” will be excluded
• Choking to prevent defendant from swallowing evidence
• Holding the defendant by the cheeks and hitting the back of his head so he will spit out evidence
• Pumping the stomach to obtain swallowed evidence
• Force feeding an emetic to induce vomiting
• Allowable tactics:
• Holding the defendant’s head against his chest to prevent swallowing
• Instructing the defendant to spit out the evidence
• Placing the hand on the throat to prevent swallowing
• Forcing a finger into the mouth to retrieve an item
• Overly suggestive or unfair line-ups may be a “due process” violation.
• In California, a line up without a Simmons admonition is presumptively unfair.
Independent state grounds
• The Due process clause sets the minimum standard
• States may have a more stringent standard for exclusion if they wish.
• California courts are required to use the federal standard for all cases