FOURTH AMENDMENT PRACTICE. Tyranny of all kinds is to be abhorred

Transcription

1 FOURTH AMENDMENT PRACTICE Tyranny of all kinds is to be abhorred

2 BYRD V. UNITED STATES Non-authorized driver of a rental car does not necessarily lack standing to challenge a vehicle search Remanded for further fact-finding, like whether Byrd fraudulently obtained the vehicle, whether that matters, and whether the search was otherwise supported by probable cause Some justices continue to be concerned about how property rights impact 4 th amendment analysis Court suggests to district courts that they needn t resolve standing questions as a separate analysis since those issues are bound up with the 4 th amendment analysis In exchange for your constitutional rights, you can borrow this car. Thanks!

3 THEORETICAL CONSIDERATIONS The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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5 PRACTICAL CONSIDERATIONS Scrutinize Apply a meticulous, step-by-step analysis Identify each step in the analysis Research each step, even if you think you know the law already Consider the government s arguments

6 PRACTICAL CONSIDERATIONS

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8 AN EXAMPLE Standing We have the burden to prove standing The Seizure Traffic stop seizes the person The Search Probable cause to search? This is the reasonable expectation of privacy idea Even very minor infractions support a stop probable cause Some exception, like inventory, etc. Think about it even if the government doesn t Research the infraction, though, to be sure it s legitimate If there s not probable cause, is there reasonable suspicion?

9 AN EXAMPLE Fleeing Independent grounds for arrest Abandonment Fleeing a stop with the keys in the vehicle constitutes abandonment Unlawfulness of the stop is not a defense Warrantless search of abandoned property doesn t implicate the 4 th amendment Forfeits the right to challenge the prior unlawful stop No reasonable expectation of privacy

10 MANAGING CLIENT EXPECTATIONS When it comes to the Fourth Amendment, our clients are optimists and legalists That makes it difficult to balance our ethical duty to our clients and to the court And it usually negatively impacts the attorney-client relationship

11 TO FILE OR NOT TO FILE Missouri Rule of Professional Conduct 4-3.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. McCoy v. Louisiana, No (U.S. May 14, 2018) Among the decisions that counsel is free to make unilaterally are the following: choosing the basic line of defense, moving to suppress evidence, delivering an opening statement and deciding what to say in the opening, objecting to the admission of evidence, cross-examining witnesses, offering evidence and calling defense witnesses, and deciding what to say in summation. See, e.g., New York v. Hill, 528 U. S. 110, (2000).

12 Logic never convinced anyone of anything. - Buck Melton, Jr.

13 Make sure you know what you re talking about Consider: Reviewing the cases your client has reviewed Sending cases to your client Writing a letter to client with your analysis Writing a memo to the file with your analysis HOW TO DISCUSS THE 4 TH AMENDMENT WITH A CLIENT

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