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Substantive due process I:. If the evidence will show actual innocence, state can’t
punish me. Not a challenge to the procedure that the outcome is reached, challenge to
the outcome itself. Osborne is saying that no matter how AK decided this, I have a right
to this DP claim. Roberts says that he obliquely refers to this and rejects it, and if there
is such a claim it must be brought under habeas.
Substantive due process II: (top of page 51) Crux of the dispute – a right to DNA
evidence, innocent or not.
4th Amendment
RIGHT
Was there a search?
• Was there a reasonable expectation of privacy? (Katz) [What a person knowingly
exposes to the public, even in his own home or office, is not a subject of 4th A
protection, need a warrant for a wiretap]
• Thermal imaging device which reveals information that would have only been
obtainable from physical intrusion into interior of home is a search, need warrant
(Kyllo)
• Non-defendants not protected from SWs, interest is in obtaining evidence, not
just suspects (Zurcher) [search of newspaper office]
Standing?
• No REOP if not overnight guest in home (Carter) [OG can’t be there for business
purposes, must be accepted as guest, length of stay relevant, Olson]
• Individual must own the evidence in question to have a 4th A claim (Rakas)
• Removing from public space to private room unreasonable seizure, TOC similar
test to that in Yarborough for custody determination (Royer) [airport, scope of
seizure exceeded level of suspicion]
Properly executed?
• Timing: Police can enter home to execute AW only if they have reasonable belief
suspect is home (Payton) [cannot enter home without AW or exigent
circumstances]
• Even with valid AW, absent exigent circumstances, police cannot enter B’s home
to arrest A, need separate SW (Steagald)
• Violation of K&A does not require the suppression of the evidence found during a
search (Hudson) [no exclusionary rule for K&A violation]
• Consent must come from someone who has, or appears to have, authority
(Rodriguez)
• If one occupant is present and refuses to give consent, there is no consent
(Randolph) [2 co-occupants, 1 consents, another refuses, police search]
• Running from PO in high crime area creates RS, TOC (Wardlow) [flight from
cops in high crime area with paper bag]
• Drugs and money found in car gives PC for arrest for 3 passengers (Pringle)
[immediate presence of contraband and # of people makes a difference,
“engaged in common enterprise,” 1/3 chance is enough]
• Any traffic violation is enough to create PC and stop a car and do a plain view
search of car, regardless of police pretextual motives (Whren)
• SILA of home limited to grabbing area (Chimel) [limited by Buie which allows
protective sweep of home incident to arrest, depending on RS and seriousness
of crime]
• Search of house after public arrest not allowed (Vale) [PC of drugs in home not
enough to search, street arrest doesn’t create exigent circ.]
• No search of car allowed if arrestee is secured and can’t access the vehicle
unless:
• PO “reasonably believes” car has evidence related to driver’s crime, can search
car (Gant) [doesn’t apply to Gant, arrested for susp. license]
• Absence exigent circumstances, police cannot enter B’s home to arrest A even
with valid AW (Steagald) [hot pursuit, must get a SW for B’s house]
• Objective officer’s reasonable basis for believing need for Emergency Aid is
enough (Brigham City) [PO enters house during fight, arrests suspect]
Plain view?
• (1)PO has to have right to be there, warrant (2) PO must have physical access to
what (3) is immediately recognizable as contraband or evidence (Horton)
[contraband found in course of search for X not listed in warrant]
Automobile?
• No warrant needed in search of mobile home with PC (Carney) [obvious mobility
of home a factor]
• Can frisk car, compartments to look for weapon with RS that any one in the car
is dangerous or has a weapon (Long) [frisk is limited search to where weapon
could be]
• Can search car for evidence with PC to believe car contains evidence of criminal
activity (Ross)
• SILA limited to grabbable area (Gant) [search of Gant’s car was illegal; officer
can search for weapons or evidence that could be destroyed]
• No search of car allowed if arrestee is secured and can’t access the vehicle
unless:
• PO “reasonably believes” car has evidence related to driver’s crime, can search
car (Gant) [doesn’t apply to Gant, arrested for susp. license]
• Arrest of driver does not allow search of body of passenger (Di Re)
• PO have the right to order people out of the car in traffic stop (MD v. Wilson)
• PO can frisk passenger out of car if RS they are armed (AZ v. Johnson)
Inventories?
• Absent warrant or PC, inventory exception to allow search for police
administrative caretaking (Bertine) [search of impounded car, finds drugs, ONLY
okay if car already impounded, no fishing expedition]
Admin/Special needs?
• No road blocks /check points for general crime control (Edmond) [need
particularized suspicion, no special needs, admin or specific wrong doing here –
just narcotics check point]
• Deadly force a TOC test (Harris) [in starting car chase, suspect was partly
culpable, case by case]
• Good faith does not apply to facially invalid warrants (Groh) [warrant didn’t
specify place to be searched, evidence excluded]
NON-CUSTODIAL SETTINGS
• Compulsory production of private papers to establish a criminal charge is
tantamount to search and seizure (Boyd) [Integration of 4th A into 5th A, not good
law]
• 4th A does impose reasonableness of search if subpoena is too broad (Hale v.
Henkel)
• If only for identification purposes, not testimony (Dionisio) [voice exemplars]
• Outside of police custody, right to 5th A is waived if not invoked (Mandujano)
• Kastigar
• Fisher
• Hubbell
6th Amendment
(as applicable to interrogations and identifications)
RIGHT
Threshold Requirements:
Right to counsel?
• 6th RTC for indigent in felony (criminal) cases at judicial proceedings (Gideon)
• 6th RTC in any criminal cause that has the possibility of actual imprisonment
(Argersinger, Scott) including suspended jail sentence w/probation (Shelton)
WAIVER
Waiver Standard
Knowing and intelligent
• Waiver only with intentional relinquishment or abandonment of right or privilege
(Williams) [no waiver because suspect repeatedly asked for counsel, burden on
government to prove waiver]
• 6th A RTC Waiver valid if made “knowing and voluntary” (Montejo) [was K&V b/c
never made “cry for help” by asking for counsel, mere appointment of
counsel≠bar on interrogation, reviewed on case by case basis—No bar to waiver
after 6th A right attaches – what constitutes waiver not yet decided]
INTERROGATIONS IN POLICE CUSTODY
DUE PROCESS: Fairness standard
Focus on reliability; TOC test
Custody?
Voluntariness
• Confession obtained after 36 hours of interrogation is “inherently coercive”
involuntary, excluded (Ashcraft) [unreliable confession]
• Confession though corroborated, obtained after 6 days of interrogation is
“inherently coercive,” excluded (Watts) [again reliability issue]
Waiver?
Knowing and intelligent
• If given Miranda, don’t invoke and sign statement waiving rights, or make
express statement waiving rights
Relevance of re-initiation
• After MRTC invoked, “What is going to happen to me now?” counts as reinitiating
(Bradshaw) [asking for polygraph test, asking possible sentences also
reinitiating, PO asks if he knows he doesn’t have to talk, talks anyway]
REMEDY
Exclusion a remedy?
Public safety exception
• Can be an exception to Miranda in issues of public safety (Quarles) [limited
holding, usually applied in cases with similar facts]
What is interrogation?
5th: Express question or functional equivalent (words/conduct that officer
should know are likely to elicit an incriminating response). Suspect must know
he’s being interrogated in order for 5A RTC to apply.
6th: Officer (or an undisclosed agent) deliberately elicits incriminating
statements. Purely passive listening does not constitute interrogation. Mental
state of officer is at issue, not suspect.
Offense specific?
5th: No
6th: Yes
Waiver, post-invocation?
5th: None without presence of counsel, unless suspect reinitiates
questioning
6th: Same “intentional relinquishment” standard, but assertion of right to
factor in determining validity of subsequent waiver.
Policy Issues
4th A protects both innocent and guilty; 5th A only protects guilty people
Due Process
Backstop to other Constitutional violations
Reliability
Shocks the conscience -- protects against significant infringements on anything inherent
to ordered liberty
Totality of the circumstances
Policy of Katz: Initial about what seeks to protect as private even if its in an
area that’s available (Upholding of Katz: Karo and Kyllo) (Deterioration of
Katz: Greenwood because he was seeking to protect as private by putting in
opaque bag, Riley has fence up); Constitutional theory from founders.