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Criminal Procedure
Elon University School of Law
Joyner, Irving L.

4th Amendment Checklist:
QUESTION: Should a particular tangible object or oral communication, secured by government agents, and which the prosecutor intends to introduce at trial against the defendant in the government’s case-in-chief, be excluded because it was obtained in violation of the 4th Amendment?
Focus on the police activity that resulted in discovery of the particular evidence at issue.
1)      Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question? (Must show that he was a victim of a search or seizure – legit expectation of privacy?)
a.       If no, the evidence is admissible (4th Amendment does not apply)
b.      If yes, analysis continues
2)      Did the police activity in question implicate a “person, house, paper, or effect”?
a.       If no, 4th Amendment does not apply
3)      Did the police activity constitute a “search” and/or “seizure”?
a.       If no, 4th Amendment does not apply
4)      Was the search and/or seizure reasonable or unreasonable?
a.       Did the police have adequate grounds to conduct the search and/or seizure?
i.      For searches and seizures, the police traditionally must have “probable cause”, however, “reasonable suspicion” is often enough
1.       Need to analyze on a case-by-case basis to determine type required
2.       Then, determine whether the police possessed probable cause or reasonable suspicion.
b.      Did the police act on the basis of a search warrant and/or arrest warrant?
i.      If no, then, Did the police have a valid reason for failing to obtain a warrant?
1.       *Search warrants are required on more of a regular basis then arrest warrants*
ii.      If yes (a warrant was issued) –
1.       Did the police obtain the warrant in a proper manner?
2.       Was the party issuing the warrant a neutral and detached magistrate?
3.       Was the warrant in proper form?
4.       Did the police execute the warrant properly?
5)      Assuming all of the above conclude that police conducted an unreasonable search or seizure in violation of D’s rights, the evidence in question is probably inadmissible. However:
a.       Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?
i.      If yes, then “good-faith” exception to the exclusionary rule, which requires determination of whether the officers executing the warrant acted on the basis of an objective good faith belief that the warrant was valid.
ii.      Assuming the exclusionary rule applies, ask: is there evidence the is a fruit of the poisonous tree (other evidence obtained due to the initial illegality?)
1.       If yes, inadmissible



I.            EXCLUSIONARY RULE AND ITS LIMITS
a.       Exclusionary Rule: the remedy by which evidence obtained in illegal searches under the 4th Amendment and coerced statements or confessions under the 5th Amendment is excluded from subsequent criminal prosecutions.
i.       Purpose (Leon): Deter police misconduct (an implicit requirement of the 4th Amendment – judicially created remedy). Applies in all criminal trials. Evidence can still sometimes be used to impeach defendant. Warrant exceptions if in good faith.
ii.      In general, when the 4th Amendment Exclusionary Rule applies, Fruit of the Poisonous Tree applies – evidence related to inadmissible evidence should not be used, unless not harmful or other exception.
b.      Fruit of the Poisonous Tree: A court will exclude not only illegally seized items but also all evidence derived from exploiting illegally seized items, unless exception.
Exceptions on the Fruit of the Poisonous Tree:
i.

icial opinion later changed by another opinion
b.      On a statute or ordinance (valid on its face) that is later declared unconstitutional
c.       On computer info containing clerical errors of someone other than the police
d.      On a defective search warrant
i.      Exceptions:
1.       The affidavit underlying warrant is so lacking in probable cause that no reasonable police officer would rely on it
2.       Warrant is invalid on its face (fails to state particularity)
3.       Police officer or govt official lied to or misled the magistrate issuing the warrant.
4.       The magistrate wholly abandoned judicial role
d.      Excluded evidence may be used for impeachment purposes in the following circumstances:
i.      An otherwise voluntary confession that violates Miranda (and thus not admissible in prosecutor’s case in chief) may be used to impeach the defendant as a witness, but a truly involuntary confession may not.
ii.      Evidence obtained in an illegal search may be used to impeach the credibility of the defendant as a witness, but not other witnesses.
e.      A conviction based on illegally obtained evidence will not be reversed if the use of such evidence was harmless error. The prosecution is required to show (beyond reasonable doubt) that the admission was harmless. The harmless error rule does not apply if the accused is denied counsel at trial (such are always harmful).