1. Criminal Evidence 6th Edition
Chapter 9
The Exclusionary Rule—
Search and Seizure
Criminal Evidence 6th Edition
Norman M. Garland

2. The Exclusionary Rule
The rule that provides that illegally obtained evidence will be excluded from use in a criminal trial.
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3. Rights Affected by the Exclusionary Rule
The Fourth Amendment right to be free from unreasonable searches and seizures.
The Sixth amendment right to counsel.
The Fifth Amendment privilege against self-incrimination.
The Fifth and Fourteenth Amendments rights to due process of law.
The protections afforded by the Miranda decision.
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4. The Exclusionary Rule— Court Created
In the case of Weeks v. United States (1914), the U.S. Supreme Court adopted the Fourth Amendment search and seizure exclusionary rule for the first time in federal court.
In the case of Mapp v. Ohio (1961), the Court applied the exclusionary rule to search and seizures in state trials for the first time.
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5. Development of the Exclusionary Rule and Its Exceptions
According to common law, the fact that evidence was illegally obtained did not exclude it from being admitted in court against the accused.
The rule was that if evidence was relevant to the case and aided in proving an issue at trial, then the evidence should be admitted.
The courts did not concern themselves with how the evidence was obtained.
Moreover, the exclusionary rule was at one time unique to the American system of justice.
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6. Silverthorne Lumber Co. v. United States
Silverthorne held that not only is illegally obtained evidence inadmissible, but any other information derived from the illegal evidence is also inadmissible.
The fruit of the poisonous tree doctrine was thus established.
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7. Fruit of the Poisonous Tree Doctrine
Six years after Weeks, the Court in Sillverthorne Lumber v. U.S. established the principle that under the exclusionary rule not only is illegally obtained evidence inadmissible, but any other information derived from the illegality is also inadmissible.
It is like a poisonous tree; any information gained as a result of the illegal search is also tainted by the illegal search and is inadmissible.
This slide is slightly repetitive
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8. Three Exceptions to the Fruit of the Poisonous Tree Doctrine
Independent Source Doctrine
Attenuation Doctrine
Inevitable-Discovery Exception
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9. Independent Source Doctrine Exception to Fruit of the Poisonous Tree Doctrine
In Silverthorne, the Court also established that if the same information or knowledge is also gained through a source independent of the illegality and this fact can by shown by the prosecution, the information can be admissible through this source but not through the illegal search.
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10. Attenuation Doctrine Exception to Fruit of the Poisonous Tree Doctrine
The exception to the fruit of the poisonous tree doctrine where the connection between the unlawful conduct of the police and the discovery of the challenged evidence is so unrelated as to dissipate the taint.
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11. Wong Sun v. United States Application of the Attenuation Doctrine
The police seized a man who told them that he had purchased narcotics from the defendant.
The seized man had never been known to the police before and so was not a reliable informant.
The police then went to the defendant's home and arrested him illegally, without probable cause based on the unreliable information.
While being interrogated, the defendant refused to make any statements.
Two days after the defendant was released on bail, he voluntarily returned to the police station and made incriminating statements to the police.
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12. Inevitable Discovery Exception to Fruit of the Poisonous Tree Doctrine
An exception to the fruit of the poisonous tree doctrine that states that the challenged evidence is admissible if the prosecution can show that the evidence would have been inevitably discovered, even in the absence of the police illegality.
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13. Nix v. Williams Application of Inevitable Discovery Exception
Police violated the defendant’s right to counsel.
The defendant made incriminating statements and was induced to lead police to the murder victim.
At the same time, search teams were within a few miles of the location of the body and were on their way to discovering it.
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14. End of the Silver Platter Doctrine
State officers who obtained evidence illegally could hand it over to federal officers for prosecution in federal court.
The silver platter doctrine ended with the 1960 United States Supreme Court ruling in Elkins v. United States that evidence obtained unlawfully by a state officer is treated the same as if obtained in the same manner by a federal officer.
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15. The Exclusionary Rule: The Good Faith Exception
This exception to the exclusionary rule allows the admission of evidence even if there is some technical defect in the warrant, as long as the executing officer has an objectively reasonable belief that the warrant is valid.
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16. United States v. Leon The Good Faith Doctrine
The essential test for the good faith exception exists:
when an officer in executing a search warrant has an objectively reasonable belief that the warrant is valid, then the evidence may be admissible at trial even if there is some technical defect in the warrant.
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17. Exception to the Good Faith Exception
When there is a warrant and a reasonably well-trained officer realizes that the search warrant is invalid, then the “good faith” exception would not apply.
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18. The Exclusionary Rule: The Impeachment Exception
The exception to the exclusionary rule that allows the prosecution to use evidence illegally seized from the accused in violation of his or her Fourth Amendment rights for the limited purpose, at trial, of impeaching the accused during direct examination or cross-examination.
Justification: to impeach false testimony aids in determining truth.
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19. Search And Seizure
The Fourth Amendment prohibits unreasonable searches and seizures, and provides that no warrants for search and seizure shall be issued without probable cause.
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20. Subjects of the Search
The search for and seizure of evidence is not confined to physical, tangible objects.
The object of a search or seizure may be the fruits of a crime, materials used in a crime, evidence of a crime, weapons, contraband, or a person.
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21. Search and Seizure Distinctions
A search is one act and a seizure is another: It is possible to conduct a search and not make a seizure, or there may be a seizure without a search.
It is quite possible to have authority to search, but not to seize; or, authority to seize but not to search.
The legality of a seizure of an object is usually dependent upon the legality of the search, but an illegal seizure may stem from a legal search.
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22. The Meaning of “Search” Katz v. United States (1967)
The Fourth Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection
But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected
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23. The Reasonable Expectation of Privacy Test
The test is whether:
The person alleging that a search occurred has exhibited an actual, subjective, expectation of privacy in the place searched.
The person's expectation is one that society is prepared to recognize as reasonable or legitimate.
If both are present, then there is a search.
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24. Search Issue: The False Friend Doctrine
What a person willingly reveals to another, on the assumption that the other is a friend, is thereby revealed to the world if the so-called friend turns out to be no friend at all.
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25. Search Issue: Open Fields Doctrine and Curtilage
People do not have a legitimate expectation of privacy in open fields even if law enforcement officers trespass upon private property in order to observe the open fields.
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26. Curtilage Distinguished From Open Fields
In Oliver v. United States, the Court distinguished open fields from the curtilage, i.e., the land immediately surrounding and associated with the home.
A person’s activities in curtilage, unlike open fields, are entitled to Fourth Amendment protection.
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27. Technologically Enhanced Activities
In Smith v. Maryland, the Court found that the installation and use of a pen register (a device that records the numbers dialed by a telephone) by the telephone company was not a search under the Fourth Amendment.
United States v. Karo involved a beeper in a chemical container, but the police used it to monitor the suspect's movements within private houses as well as public places. The Court found this monitoring to be a search since the property monitored had been removed from public view.
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28. Technologically Enhanced Activities
While pointing a flashlight at night to illuminate an area open to public view does not trigger Fourth Amendment issues, there are a variety of devices that could, ranging from parabolic microphones to electronic tracking devices.
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29. United States v. Knotts
Using visual as well as electronic monitoring, the officers were able to locate the suspects via their possession of the “beeperized” container even though they lost visual contact with the suspects.
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30. A Concern of Technology
Technologically enhanced police activities could be subject to a principle other than the information gained by the officers—whether the technique used is so readily available that it can be said that there is no reasonable privacy expectation against its use by the public at large.
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31. Aerial Surveillance: Navigable Airspace?
Navigable in a non-obtrusive manner, such aerial surveillance, not enhanced technologically, does not constitute a search even though the observations were of activities taking place within the curtilage of private dwellings.
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32. Miscellaneous Matters Pertaining to Defining What a Search Is
If the information obtained was available to the public, then the Court has concluded that there is no search.
Whether police conduct constitutes a search may depend upon such factors as the quantity or quality of information the conduct reveals.
The information revealed was very limited in nature, and the information would only disclose the presence or absence of contraband, which cannot be legally possessed.
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33. What Is a Seizure? Seizure of Property Seizure of a Person
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34. Seizure of Property
A seizure that occurs when there is some meaningful interference with an individual's possessory interest in that property.
Destruction of the property, taking the property from the person's possession, or preventing persons from entering or leaving their home constitute meaningful interferences with individuals' possessory interests.
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35. Seizure of a Person A seizure of a person occurs when:
(1) by means of physical force or show of authority, the person's freedom of movement is restrained; and, only if,
(2) in view of all of the circumstances surrounding the incident, a reasonable person would not have believed he or she were not free to leave.
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36. Ways of Making a Reasonable Search and Seizure
Searches and seizures made pursuant to a search warrant.
Warrantless searches and seizures that have been declared reasonable via a “well delineated exception” to the warrant clause.
Less intrusive searches and seizures, which are made on less than probable cause, such as searches and seizures under the Terry doctrine, based on a “reasonable suspicion.”
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37. Exceptions to the Warrant Clause
The six “well delineated” exceptions to the warrant clause are:
(1) search incident to a lawful arrest (SILA)
(2) consent
(3) vehicle and container searches
(4) inventory searches
(5) exigent circumstances searches
(6) plain view searches
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38. Definition of Search Warrant
A search warrant is a written order, issued upon probable cause by a neutral and detached magistrate, in the name of the people, to a peace officer directing the officer to search a particular person or place, and to seize specifically described property and bring it before the magistrate.
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39. Grounds for Issuing a Search Warrant
(1) Property that is the fruit of a crime, such as stolen property.
(2) Property that is an instrumentality of a crime, such as a gun used in a robbery.
(3) Property that is evidence of a crime, tending, such as a bloody shirt.
(4) Property that is contraband, meaning any property that is unlawful to possess.
(5) Persons for whom there is probable cause to believe they have on their person one of the types of property named in the first four categories, or for whom there is a warrant for their arrest.
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40. Procedure to Obtain a Search Warrant
The Officer’s Role:
To show that there is probable cause to believe that one of the foregoing grounds for the issuance of a search warrant exists.
This belief must be based on facts articulated in a written and sworn affidavit.
Seek approval of the warrant application from a supervisor or a prosecutor.
Once supervisory approval is obtained submit warrant application to judge or magistrate and secure the issuance of the warrant.
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41. Procedure to Obtain a Search Warrant
The Magistrate’s Role:
To be satisfied that the facts set forth in the affidavit give rise to probable cause.
Closely scrutinize the affidavit, questioning the officer if necessary.
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42. Probable Cause
Probable cause to search “exists if the facts and circumstances within [the officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched.” Brinegar v. United States
Removed unnecessary single quote before the “the” in “exists if the…”
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43. Probable Cause to Search: The Fair Probability Requirement
There must be a “fair probability” that the property subject to being seized (contraband, or fruits, instrumentalities, or evidence of a crime) is presently in the specific place to be searched.
There must be enough facts presented to cause a person of reasonable caution to believe, by a fair probability, that the stolen property is at that place.
Fair probability has not been defined affirmatively, but has been said to be less than a preponderance of the evidence, which is somewhere under a 50 percent likelihood.
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44. Probable Cause to Arrest
Probable cause to arrest exists where the facts and circumstances within the officer's knowledge, and of which he or she has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe, by a fair probability, that a particular individual has committed, or is committing, a particular offense.
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45. Probable Cause to Arrest: Source of Information
To establish probable cause, it is not necessary for the officer seeking a search warrant to have personal knowledge of the facts stated in the application or affidavit.
The officer's information may stem from a variety of sources, including confidential or anonymous sources.
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46. Confidential Informant or Anonymous Source
Many times when information is furnished to an officer, it is deemed advisable to keep the identity of the informant confidential.
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47. Totality of Circumstances for Probable Cause
Probable cause, therefore, is not determined under a neat set of legal rules, but is determined in light of how reasonable people act in everyday life.
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48. Particularity of Description of Property to Be Searched or Seized
The Fourth Amendment provides that the place to be searched and the thing to be seized must be particularly described.
Since particularly described is not spelled out, court decisions have set forth certain guidelines.
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49. Discovery of Other Property: The Plain View Doctrine
If the officer, while conducting a search within the reasonable scope of the warrant, observes material that the officer has probable cause to believe is subject to seizure, the officer may seize it.
As long as the material is within plain view and the officer is in a lawful position when the observation is made, anything that the officer recognizes to be fruits, instrumentalities, contraband, or evidence, may be seized.
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50. Advice for the Officer
If you are seeking a search warrant, remember to list everything and everyone that you anticipate finding and everywhere you intend to search.
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51. Who May Serve a Warrant?
A search warrant may be served by a peace officer only and not a private person.
A search warrant may be served by any one of the officers, or class of officers, mentioned in the search warrant.
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52. Additional Considerations When Executing Search Warrants
The usual practice is that when a search is made pursuant to a search warrant, the officer executing the search shows the original search warrant to the occupant of the premises to be searched, and furnishes the occupant with a copy of the warrant and the affidavit before the search.
If there is no one present at the time of the search, a copy of the search warrant and affidavit should be posted in a conspicuous place inside the premises.
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53. Knock and Announce and the Use of Force in Execution of a Warrant
Before an officer may execute a search warrant, the officer must knock and announce (this requirement is also known as knock and notice) his or her presence and purpose for entering, unless some kind of exigency exists.
Whether a search of a dwelling is reasonable or unreasonable may depend, in part, on whether the officers executing a search warrant knocked and announced their presence before entering.
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54. Announcing Always Necessary?
There are times when announcing the officer's purpose prior to entering the premises is not necessary.
Occupants are already alerted.
If the officer has probable cause to believe that his or her life, or that of others, may be in danger.
If there is reason to believe that evidence may be destroyed.
If the officer has an honest belief that the premises to be searched are unoccupied.
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55. Time Limit on Execution of Warrant: The Staleness Doctrine
Once a search warrant is issued, it may not be held indefinitely by the officer before making the search. This is known as the staleness doctrine.
Warrants are issued on the basis of probable cause to believe that the objects of the warrant are in a particular place.
Many objects sought via a search warrant are portable and cannot be presumed to remain in one place indefinitely.
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56. Staleness = No Probable Cause?
If probable cause to search no longer exists and a search takes place anyway, a Fourth Amendment violation will occur.
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57. Attack on the Search Warrant
The search warrant may be attacked by the defendant by alleging any of the following grounds:
There was insufficient probable cause for the issuance of the search warrant.
The place to be searched or the thing to be seized was not “particularly” described.
The warrant was not properly executed.
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58. Reasonable Searches Without Warrant: Exceptions to the Warrant Requirement
Search and seizure incident to lawful arrest
Vehicle searches
Inventory searches
Consent searches
Exigent circumstances searches
Plain view searches
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59. Search and Seizure Incident to a Lawful Arrest Exception
Based upon the necessity to protect the officer and prevent destruction of evidence, the exception permits an officer, without a warrant and further probable cause, to search the person and certain areas around an arrestee incident to a lawful arrest.
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60. Search Incident to a Lawful Arrest
For a search incident to an arrest to be reasonable, the arrest must be a lawful one and the search must be limited to the following:
The person of the arrestee and the area within his or her immediate control (including any containers on the person or within the area).
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61. Search Incident to a Lawful Arrest continued
If the arrest is made in a house or other structure, any area adjoining the room in which the arrest is made in which a person might be present who could immediately launch an attack upon the arresting officers (limited to only those spaces large enough to conceal a person).
If the arrest is made while or immediately after the arrestee was a passenger in a vehicle, the passenger compartment of the vehicle and any containers therein, open or closed.
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62. Incident to Arrest: Vehicle Search
If a custodial arrest takes place while the arrestee is in a vehicle, or has just emerged from a vehicle, an officer may search, as incident to the arrest, the area immediately within the control of the arrestee.
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63. Scope of the Vehicle Search Incident to Arrest
This includes not only the passenger compartment of the vehicle but any containers, open or closed, in that compartment.
The Court specifically stated that the officer could search containers, both open and closed, in the vehicle’s passenger compartment.
However, there is some question whether a locked container is within the Court’s language. The area subject to search does not extend to the trunk.
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64. Blood Samples and Driving Under the Influence
The extent to which an officer may search an accused incident to an arrest has its limitations, particularly in cases of arrests for driving under the influence.
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65. The Test of Schmerber v. California
There must be “a clear indication” that evidence will be found in the blood taken from the accused. This has been interpreted to mean three things:
(1) The officer must have probable cause to believe that the blood of the arrestee contains. criminal evidence, namely a blood-alcohol level.
(2) There must be an exigency that evidence will be destroyed if an officer were required to apply for a search warrant.
(3) The means and procedures employed by the officer must be reasonable.
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66. Search and Seizure: Vehicle Searches Exception
Under the vehicle exception, an officer may search the interior of a vehicle without a warrant if he or she has probable cause to believe that the vehicle contains fruits, instrumentalities, or evidence of a crime, or contraband.
The rationale behind the vehicle exception is that vehicles are inherently mobile and, therefore, the opportunity to search is only momentary.
Carroll v. United States, 267 U.S. 132, (1925)
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67. Search and Seizure: Inventory Searches Exception
The inventory search exception to the warrant requirement permits a police officer to inventory the property of a vehicle or a person for the protection of the property and the police.
The rationale is that such searches protect the owner’s property while it is in police custody, protect police against claims of loss or theft, and protect the police and others from dangerous items that might be hidden inside.
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68. Search and Seizure: Consent Searches
A consent search is another exception to the warrant requirement of the Fourth Amendment, as well as an exception to the probable cause requirement.
The validity of consent turns on whether consent was voluntarily given, taking into account the totality of the circumstances for consent.
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69. Form of Consent
No formal wording is necessary for a consent to be considered freely and voluntarily given, but there should be some affirmative response, not a mere failure to object to the search.
Silence alone is not deemed to be a consent.
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70. Who May Give Consent
If the search is to be of a person, the person who is to be searched is the one to give the consent.
In the case of a person of unsound mind or a child too young to know the meaning of the consent, consent may be given by the parent or guardian.
If a search is to be made of certain property or premises, consent must be given by one who has, or reasonably appears to have, common authority over the property or premises for most purposes.
It is not always easy to determine who has this authority.
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71. Apparent Authority
Under this doctrine, a third-party consent search will be deemed reasonable if the facts available to the officer at the moment of entry would cause a reasonable person to believe that the consenting party had common authority for most purposes over the premises or property.
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72. Scope of Consent: Plain View
If consent is voluntarily given to search a premises for a particular object, and during the search something else is observed in plain view, that object is admissible evidence if it was found within the scope of the consent given.
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73. Search and Seizure Exception: Exigent Circumstances Searches
An exigency is a situation that requires immediate action—it will not be deemed unreasonable for an officer to search without a warrant under exigent circumstances.
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74. Search and Seizure Exception: Exigent Circumstances Search
The scope of a search conducted under exigent circumstances will be defined by the emergency or exigency that justifies the search.
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75. Four Exigencies Recognized in Minnesota v. Olson
Four exigencies were specifically recognized by the U.S. Supreme Court in Minnesota v. Olson, 485 U.S. 91 (1900):
Hot pursuit of a fleeing felon.
Imminent destruction of evidence.
The need to prevent a suspect’s escape.
The risk of harm to the police or to others.
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76. Search and Seizure Exception: Plain View Doctrine
As another exception to the warrant requirement, the plain view doctrine is intertwined with all of the other methods of conducting a reasonable search.
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77. The Plain View Doctrine
An officer may seize an object without a warrant if:
the officer observes the object from a lawful vantage point;
the officer has a right of physical access to the object from the lawful vantage point; and
the nature of the object is immediately apparent as an article subject to seizure (i.e., contraband or a fruit, instrumentality, or evidence of a crime).
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78. Search and Seizure on Less Than Probable Cause: Stop and Frisk
The Court adopted a new search and seizure standard when it found a law officer’s search and seizure to be justified on less than probable cause, and without a warrant in a stop and frisk situation.
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79. Stop and Frisk and Reasonable Suspicion in Other Circumstances
In determining the reasonableness of the officer's conduct, the Court balanced the government interests in effective crime prevention and officer safety versus the governmental intrusion on the individual's security.
The Court found that the governmental interests outweighed the individual's interest, primarily for the reason that the intrusion on the individual's privacy was less than that of a full-scale search and seizure.
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80. Basis of the Stop and Frisk Standard Terry v. Ohio
In this case, the officer’s conduct was the stop and frisk of a suspect whom the officer suspected was about to commit a crime.
As a result of the patdown, the officer felt a gun in the defendant’s overcoat, which the officer pulled out.
The defendant was prosecuted and convicted for carrying a concealed weapon.
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81. Basis of the Stop and Frisk Standard Terry v. Ohio
The Court found that where an officer had reasonable suspicion, with less than probable cause and without a warrant, an officer may detain a suspect temporarily to make reasonable inquiry to confirm or dispel the suspicion.
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82. Reasonable Suspicion
The officer, in order to act in these ways, needs only reasonable suspicion.
Reasonable suspicion, being a lesser standard than probable cause, will not require as much evidence of criminal wrongdoing as probable cause—nor is it necessary that the officer's information be as reliable as that necessary for probable cause.
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83. What is a stop?
A stop is a temporary detention, not amounting to a full-blown arrest, requiring only reasonable suspicion that a particular individual is about to commit, is committing, or has committed a crime.
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84. What is a frisk?
A frisk is a limited patdown search of the outer garments of a person to determine whether he or she possesses a weapon with which to cause injury to an officer or others.
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85. The Permissible Scope of Stops
An officer may stop or temporarily detain an individual, based on a reasonable suspicion the person is engaged in some criminal activity or is armed and dangerous.
The detention cannot rise to the level of an arrest since probable cause is required for that.
Detention, justified on the basis of reasonable suspicion, constitutes a seizure, but, because it is less intrusive than an arrest, the level of justification is lower than the probable cause required for an arrest.
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86. Factors in Determining the Scope of the Stop
The length of the detention itself, i.e., whether the detention lasted longer than was necessary to clarify the circumstances for which the person was stopped.
Whether the person was forcibly removed from home or other place that he or she was entitled to be.
Whether the officer pursued the investigation in a reasonable and diligent manner, i.e., utilized a method of investigation that was likely to confirm or dispel the officer’s suspicions quickly.
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87. The Duration of the Detention
The duration of the detention can be too long to be justified on grounds of reasonable suspicion.
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88. Reasonable Diligence in Investigation
The officer need not use the least intrusive means of investigating.
If, in hindsight, a less intrusive means could be said to be available, the question will be whether the officer acted reasonably in failing to recognize and pursue it.
In the final analysis, the test will be whether the officer “pursued his investigation in a diligent and reasonable manner.”
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89. Suspicionless Stops
Societal needs create government interest for suspicionless stops and searches, i.e., sobriety checkpoints, border crossings, drug testing in certain hazardous occupations and public health situations.
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90. Objecting to Evidence Claimed to be Illegally Seized
The right to make such a claim is known as standing.
The written request is called a motion to suppress.
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91. Standing
A personal, reasonable expectation of privacy in the thing seized or place searched.
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92. Motion to Supress
Set forth in writing reasons why the defendant believes the evidence was illegally obtained.
A hearing on the motion is usually held prior to trial.
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