Fourth Amendment Exceptions and Miranda: Criminal Procedure Rules for the Bar

Criminal Procedure on the bar exam focuses on constitutional protections, especially the Fourth and Fifth Amendments. Here's a framework for the two most tested areas.

Fourth Amendment: was there a search?

Before getting to warrants, confirm there was a government search:

• Government conduct (police or someone acting at their direction).
• A reasonable expectation of privacy in the place or item searched, or a physical intrusion on a constitutionally protected area for the purpose of gathering information.
• Standing: the defendant's own rights must have been violated. Overnight guests generally have standing in their host's home; someone briefly present for a business transaction generally doesn't.

The warrant requirement and its exceptions

A search generally requires a warrant supported by probable cause and describing with particularity the place to be searched and items to be seized. The major exceptions:

• Search incident to lawful arrest: the arrestee's person and areas within their immediate control. For vehicles, police may search the passenger compartment only if the arrestee is unsecured and within reaching distance, or it's reasonable to believe evidence of the offense of arrest is in the vehicle (Arizona v. Gant).
• Automobile exception: with probable cause to believe a vehicle contains contraband or evidence, police may search any part of the vehicle and containers where the item could be found.
• Plain view: police lawfully present may seize an item if its incriminating nature is immediately apparent.
• Consent: voluntary consent by someone with actual or apparent authority.
• *Stop and frisk (Terry):* a brief stop requires reasonable suspicion of criminal activity; a frisk for weapons requires reasonable suspicion that the person is armed and dangerous.
• Hot pursuit and exigent circumstances: such as imminent destruction of evidence or an emergency.
• Inventory searches under standardized procedures.

Exclusionary rule and its limits

Evidence obtained in violation of the Fourth Amendment, and its fruits, are generally inadmissible. Exceptions:

• Independent source.
• Inevitable discovery.
• Attenuation of the connection between the violation and the evidence.
• Good-faith reliance on a facially valid warrant, a later-invalidated statute, or binding appellate precedent.
• Knock-and-announce violations don't trigger exclusion.

Miranda

The rule: Before custodial interrogation, a suspect must be warned of the right to remain silent, that anything said can be used against them, the right to an attorney, and the right to an appointed attorney if they can't afford one.

Custody: whether a reasonable person would feel not free to leave, in circumstances that present the kind of coercive pressure of a station house. Routine traffic stops are generally not custody.

Interrogation: express questioning or words or actions police should know are reasonably likely to elicit an incriminating response. Volunteered statements aren't covered.

Invoking rights:

• Right to counsel must be invoked unambiguously. Once invoked, police must stop until counsel is present, unless the suspect initiates further communication. After a break in custody of 14 days or more, police may try again (Maryland v. Shatzer).
• Right to remain silent must also be invoked unambiguously. Police must scrupulously honor it but may re-approach after a significant time with fresh warnings.

Waiver: must be knowing and voluntary. It can be implied by a suspect who understood the warnings and then answered questions.

Exceptions: public safety questioning. Statements obtained in violation of Miranda (but otherwise voluntary) may be used for impeachment.

Where Lexora Prep fits

Criminal Procedure has many exceptions with specific conditions, like Gant for vehicle searches or Shatzer's 14 days. Lexora Prep is a Black Letter Law rule-training platform where you practice rules like these from memory, with fill-in-the-blank and element modes that target precise details. It tracks weak rules and missed elements and brings them back until they're solid.

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