Evidence Unconstitutionally Obtained


Chapter 16

Evidence Unconstitutionally Obtained

Search and Seizure


  •  Searches with and without warrants
  • Confessions
  • Right to an attorney
  • Exclusion under the 4th, 5th, 6th and 14th amendments

Exclusionary Rule

  • 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 must:
    • 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
      • Boats
      • Airplanes
      • Mobile homes when in use on roads or readily capable of moving
  4. Plain View Doctrine I
    • 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
      • he inventory is in compliance with a standard practice
    • Opening of closed containers may be allowed is part of the protocol l
  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