Was the WARRANT INVALID?
Under the 4th Amendment, extended to the states by the 14th Amendment, government is prohibited from unreasonable search and seizure and must properly execute a search warrant particularizing the place to be searched and the evidence sought upon issue by a neutral magistrate based on a showing of probable cause. Probable cause means there is a REASONABLE SUSPICION that a crime has been committed and that the defendant committed it.
Was the WARRANT IMPROPERLY EXECUTED?
Under the 4th Amendment, extended to the states by the 14th Amendment, the government is restricted to a search of the place and evidence particularized in the search warrant.
Was the search a TERRY STOP that did not require a WARRANT?
Under Criminal Procedure law no warrant is required for a TERRY STOP, where police may PAT and FRISK a person without a warrant searching for WEAPONS if there is an articulable reason to believe it is necessary for safety.
Was the search a PROTECTIVE SWEEP that did not require a WARRANT?
Under Criminal Procedure law no warrant is required for a PROTECTIVE SWEEP, where police may do a cursory search of the immediate area around them if there is an articulable reason to believe it is necessary for safety.
Was the search with CONSENT so it did not require a WARRANT?
Under Criminal Procedure law no warrant is required if CONSENT is willingly given for the search by someone with legal capacity and authority to give consent.
Was the search INCIDENT TO A LAWFUL ARREST so it did not require a WARRANT?
Under Criminal Procedure law no warrant is required for a non-intrusive search of a person, to the immediate "lurch area" around them, and their immediate belongings if it is INCIDENT TO A LAWFUL ARREST.
An arrest by police is lawful if the defendant commits a misdemeanor or breach of peace in the presence of the police or if police have reasonable evidence a felony has been committed. But a warrant is needed to enter the home of an innocent third party absent some other justification.
Was the search subject to an AUTO EXCEPTION that did not require a WARRANT?
Under the AUTO EXCEPTION no warrant is required to search an AUTO, including all compartments and containers within it, if the car is stopped at a border, based on probable cause, or at a checkpoint where cars are stopped on a uniform or systematic basis for purposes of a) traffic safety, b) preventing illegal immigration or c) searching for witnesses to crimes recently committed in the area.
Was the evidence seen in PLAIN VIEW so it did not require a WARRANT?
Under the OPEN FIELDS DOCTRINE no warrant is required for police to discover evidence that is in their PLAIN VIEW while observed by reasonable means from a proper position.
Was the search subject to the HOT PURSUIT exception so it did not require a WARRANT?
Under the HOT PURSUIT exception no warrant is required for police to enter property to make an arrest if they are in hot pursuit of a fleeing suspect.
Was the search without a warrant justified because of EXIGENT CIRCUMSTANCES?
Under the EXIGENT CIRCUMSTANCES exception no warrant is required for police to enter property or search a person if delay to obtain a warrant would pose a risk of injury or death, or the loss of evanescent evidence.
Were the statements of the D obtained in violation of his MIRANDA rights?
Under the 5th and 6th Amendments, extended to the states by the 14th Amendment, forced self-incrimination is prohibited and the right to counsel guaranteed. The MIRANDA rule requires police to advise a suspect he has a right to remain silent and a right to counsel in a CUSTODIAL INTERROGATION. A D may expressly, knowingly and voluntarily waive her rights but police may not interrogate or elicit statements from the D without assistance of counsel after the rights are asserted.
Were the statements of the D obtained in violation of his RIGHT TO COUNSEL?
Under the 6th Amendment, extended to the states by the 14th Amendment, an accused is guaranteed a right to counsel, and the MASSIAH DOCTRINE prohibits police interrogation of an accused about the accused crime without legal counsel present after the right to counsel attaches. An accused has a right to counsel during custodial interrogation (also at arraignment, preliminary hearing, physical lineup and entry of plea. Modify the rule to match the facts presented in the essay question.)
Police cannot act to elicit incriminating statements or secretly record the statements fo the accused when he is outside of cusody pending trial. However they can use testimony of independent witnesses about any incriminating statements by the accused that were not elicited by police action.
EXCLUSIONARY RULE: Should the evidence be EXCLUDED?
Under the EXCLUSIONARY RULE the Court has discretion to deny the prosecution the use of evidence that is the product of police misconduct if on BALANCE the deterrent effect of exclusion outweighs the negative effects it would have on law enforcement.
The FRUIT OF THE POISONOUS TREE doctrine may extend exclusion to evidence that results from prior police misconduct.
The D can request exclusion only if the police misconduct violated the D's reasonable expectation of privacy.
Evidence will not be excluded from use to impeach the D, where the sovereign offeringthe evidence to the Court acted in good faith, or where the error is harmless because the evidence at issue would have been inevitably discovered in any case.
Is the D being subjected to DOUBLE JEOPARDY?
Under the 5th Amendment the same sovereign cannot try a D more than once for the same crime. A separate sovereign can try a D for the same crime, and the same sovereign can try a D for a different crime arising out of the same acts, if the crime involves different elements.