4th Amendment

Seizure of People
1. Federal/MT
a. Has there been a seizure?
i. Define: Reasonable person not feel free to ignore police and go about
business.
ii. Mendenhall Factors
1. Threatening presence
2. Display of weapon
3. Physical Touching
4. Language/Tone Voice
b. What type of seizure?
i. Arrest: PC.
ii. Terry Stop: PS.
c. Have the requirements for the seizure been met?
i. Arrest
1. PC:
a. RB that crime has been committed
b. RB the person being arrested committed that crime
c. TOC
ii. Terry Stop: Temporary stop to confirm or deny wrongdoing
1. PS:
a. Objective Data which an experienced officer can make
certain inferences.
i. Police Reports
ii. Officer observations
iii. Patterns of lawbreakers
iv. Informants:
1. Veracity: Criminal History
2. Reliability: Track Record
3. Basis of Knowledge: How do they know?
4. Corroboration of Evidence:
5. FED: Predictive info is enough even if not
illegal
6. MT: PS quality same at PC. Quantity can be
less.
7. FED: PS quality and quantity can be less
than PC
b. Resulting suspicion

Seizure of Property
1. Federal
a. Seizure?
i. Meaningful interference with possessory interest
 b. Warrant?
c. Warrant Exception?
i. Plain view
1. In plain view
2. Criminality of object is immediately apparent
3. Legally in the place where the can see object
a. No 4th Violation
4. Officer must have lawful right to access to object
a. Nothing between officer and item

PC to Arrest (Fed and MT)

1. RB that crime has been committed
2. RB that person being arrested did it (objective standard)
3. TOC
Circumstances justifying immediate arrest (MT)
1. For non-jailable Offense
a. Safety of offender
b. Safety of public
c. Confirm identity of offender
2. Inherent for jailable offense

Arrest Warrant Needed (Fed and MT)

1. No
a. In public
b. PC that felony or misdemeanor committed in officer’s presence.
c. In D’s home w/ warrant exception
2. Yes
a. In D’s home w/o warrant exception
b. In public but no PC that misdemeanor committed in officer’s presence

Searches
1. PC to Search:
a. RB that crime has been committed
b. RB that evidence of crime is where officer wants to look
2. Federal
a. Was there a search?
i. Katz Test
1. Did D have a reasonable expectation of privacy?
2. Is the expectation one that society is willing to recognize?
a. Curtilage v. Open Fields
i. Proximity of home
ii. Nature of use
iii. Steps take to protect from observation
iv. Within an enclosure
 b. Dog is not search because limited intrusion
c. Tech Test
i. Whether general public has access and could thing
couldn't be discovered without physical intrusion.
b. Was the search supported by a search warrant?
i. Was it valid?
1. Probable cause to search
2. Within four corners of the document
3. Signed by a neutral and detached magistrate
4. Specificity about what to be searched and seized
ii. Was it executed properly?
1. Knock and Announce
a. Can use exigent circumstance at will (Destruction of
evidence, futility, safety, escape).
b. Doesn’t trigger Exclusionary Rule
c. Is there an exception to warrant requirement?
i. Search incident to arrest
1. R: PC to arrest, custodial arrest, lawfully effectuated (warrant and
no excessive force).
2. S: Person + grab area
ii. SIA of Occupant of Car:
1. R: PC to arrest, custodial arrest, lawfully effectuated + arrest of
occupant of car is not secured or there is RB that evidence of
crime of arrest is in the car
2. S: Person + grab area and compartment of car, including
containers, passenger possessions.
iii. Terry Protective Pat-Down
1. R: Reasonable belief that D is armed and dangerous
2. S: Exterior of clothes limited to search of weapons + Plain Feel
Extension:
a. Things that know are contraband (illegal/incriminating)
b. Things thought were weapons
c. IF RB ASSOCIATED WITH CAR: limited to pat down of
compartment where weapon might be hidden
iv. Automobile Exception
1. R: PC to search + Car (other movable) used on highways or not
parked for residential purposes
2. Scope: Limited by PC to search (passenger possession included)
v. Consent: Exception to warrant and PC
1. R: Voluntary consent from owner OR 3rd party with
actual/apparent authority over property.
2. S: Wherever consented to
vi. Exigent Circumstances
1. R: PC and exigent circumstances
 a. Prevent harm to cops or others
b. Prevent destruction of evidence
c. Prevent escape
d. Prevent frustration of legit law enforcement
2. Scope: Wherever needed to resolve exigency
vii. Inventory
1. R: Routine, administrative procedure + not for
investigation/evidence gathering
2. Scope: Cars, People, Possessions
3. MT
a. Was there a search?
i. Katz Plus Test
1. Did D have a reasonable expectation of privacy?
a. Fences, signs, trees, etc.
2. Is the expectation one that society is willing to recognize?
a. If you manifest it, we will recognize it. Bullock.
b. Con, Case Law, Con Con, Legislation.
3. What is the nature with 4th Amendment?
a. Comply with 4th Amendment
b. Compelling State Interest
b. Was the search supported by a search warrant?
i. Was it valid?
1. Probable cause to search
2. Within four corners of the document
3. Signed by a neutral and detached magistrate
4. Specificity about what to be searched and seized
ii. Was it executed properly?
1. Knock and Announce
a. If Exigent circumstance, must notify judge when applying
for warrant
c. Was there an exception present to the search warrant requirement?
i. Search incident to arrest
1. R: PC to arrest, Lawfully effectuated, Custodial arrest + (protection
of officer, Prevent escape, discover fruits of crime, discover
evidence) + exigent circumstances (NEED TO ARTICULATE
PRIOR)
2. S: Person + grab area
ii. SIA of Occupant of Car:
1. R: PC to arrest, lawfully effectuated, Custodial arrest
2. S: Person + grab area and passenger compartment including
containers + protection of officer, prevent escape, discover fruits
of crime, discover evidence + exigent circumstances
iii. Terry Protective Pat Down
1. R: Reasonable belief that D is armed and dangerous supported
 2. S: Exterior of clothes limited to search of weapons + Plain Feel
Extension:
a. Things that know are contraband (illegal/incriminating)
b. Things thought were weapons
iv. Plain View Doctrine
1. R: Officer lawfully in place to see item, Item in plain view and
incriminating nature is immediately apparent, lawful right to access
item
2. S: Wherever is in plain view
v. “Automobile Exception”:
1. R: PC + Exigent Circumstances (No mobility or difficulty obtaining
warrant)
2. S: Wherever you have PC
vi. Consent: Exception to warrant and PC
1. R: Voluntary consent from owner of property OR 3rd party with
actual authority over the property
a. No Apparent and no under 16 consent
2. S: Wherever consented to
vii. Exigent Circumstances
1. R: PC (arrest or search) and exigent circumstances
a. Prevent harm to cops or others
b. Prevent destruction of evidence
c. Prevent escape
d. Prevent frustration of legit law enforcement
2. Scope: Wherever needed to resolve exigency
viii. Canine Sniff
1. R: PS to search and area is in public
2. S: Wherever you have PS to search
ix. Inventory
1. R: Routine, administrative procedure + Not for
investigation/evidence gathering.
2. S: Persons and possessions at station house. NO CARS

5th Amendment

Miranda Analysis
1. Does MIR apply?
a. Custody, and
i. Deprived of freedom of action in any significant way (More than Terry)
b. Interrogation
i. Express Questions
ii. Words or actions that police should know are reasonably likely to elicit an
incriminating response
2. Was D advised of Miranda Rights?
 a. Rights to remain silent, anything you say will be used
b. Any you say can and will be used
c. Right to attorney
d. If can't afford attorney, one will be provided.
3. Did D invoke rights?
a. Clear and unequivocal invocation of rights for both attorney and silence
i. Express or Implied through conduct
b. Broader ability to invoke right of an attorney (MT)
i. Somebody is sufficient, substance over form.
c. Interrogation Ceases
i. Cannot resume without counsel present or 14 days, then resume
4. Did D waive his rights? (TOC)
a. Voluntarily: Free + deliberate choice (uncoerced)
b. Knowingly: Aware/understanding of the right
c. Intelligent: Aware of consequences of giving up right
d. Express: Written waiver
e. Implied: MIR advised + Understood MIR + Continue with voluntary statement and
voluntariness test (Not clear if applies in MT)
f. State’s burden by preponderance of evidence

Voluntariness Test (TOC)

1. Whether statement was coerced or voluntary. D’s will overborne?
a. Characteristics of D
i. Age
ii. Sex
iii. Education
iv. Intelligence
v. Race/ethnicity
vi. Criminal Record
vii. Employment
viii. Experience with Criminal Justice System
b. Details of Interrogation
i. Advised of rights
ii. Length of Interrogation
iii. Place of Interrogation
iv. Manner of Interrogation
v. Persons present
vi. Deprivation of sleep/food
vii. Threats
viii. Promises
ix. Impermissible Police Practices (MT)
1. Psychological tactics or pressure
2. Guilt assumption technique
3. Deception of lying
 4. Failure to preserve record of rights advisement will be viewed with
distrust when in controlled setting

Sixth Amendment
Right to Counsel
1. Attaches when judicial proceedings start
a. Charging
b. Indictment or Information
c. Preliminary Hearing
d. Arraignment
2. Waiver of Knowing, voluntary, intelligent

Exclusionary Rule
1. Evidence obtained by exploiting a constitutional violation is potentially suppressible
2. Is the Exclusionary Rule Triggered
a. Is there a constitutional violation by a state actor?
i. Violation of 4th, 5th, or 6th Amendments
1. 5th Amendment
a. Miranda violation alone
i. Statement suppressed in Prosecution’s case-in-
chief
ii. May be admissible for impeachment
iii. Physical fruits not suppressed
b. Voluntariness violation
i. Statement suppressed
ii. Physical fruits suppressed
b. Is the evidence Fruit of the Poisonous Tree?
i. Exploit illegality to obtain the evidence?
ii. Taint attenuated?
1. Temporal aspect - more time passes, more attenuation
2. Flagrancy of misconduct
a. Negligence not deterrable (Against Fruit)
b. Intentional or reckless is deterrable (Pro Fruit)
3. Intervening circumstances (Attenuation types)
a. Consultation with lawyer then statement
b. Existence of valid warrant
c. Independent act of free will on D’s part
3. If fruit, is there an exception to the Exclusionary Rule?
a. Independent Source – Separate from con violation
b. Inevitable discovery – Police procedures would inevitably discover.
c. Attenuation of Taint
d. Good Faith - Federal Only
i. Reliance on later invalidated statute and reliance on warrant no longer
valid. Reliance on police or judicial database later found to be wrong.