Crim Pro Outline

Constitutional Criminal Procedure
Law Enforcement Field Guide Focus on Pretrial Constitutional Criminal Procedure - not on rules of criminal procedure - not sentencing Ch 5 Not Covered, but important 4th 5th and 6th amendments - 14th amendment changed the meaning of 4th 5th and 6th amendments Reasonable expectation of privacy in garbage open visible object closed container Massiah Right- right to have attorney present after indictment. 4th Amendment
- the right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizure, 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 persons or things to be seized. - doesnt say that their cannot be warrantless searches - requires reasonableness, and applies to both clauses. - no definition of probable cause - covers persons, houses, papers, and effects. - Exclusionary Rule- Implied- (fruits of the poisonous tree)- information obtained from illegal search cannot be used against. Probable Cause yes yes No No Warrant Reasonable? yes no No Yes
yes maybe (exceptions) Unreasonable Usually (airport exception) Generally defective warrant (unreasonable)
5th Amendment - No person. . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. 6th Amendment - The accused shall . . . have the assistance of counsel for his defense. - in critical pretrial procedures - lineup, but not photo spread Deductive Briefing- is a technique for analyzing the logical, interpretive, and rhetorical structure of constitutional criminal procedure cases. The approach in this chapter involves four steps: 1. review of current debates over proper interpretive method 2. descriptions of the basics of deductive and inductive reasoning 3. application of the first two lessons to create a deductive brief
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practice in deductive briefing of selected opinions. Interpretive method- 7 broad types of evidence to support premises constitution evidence of intent of framers tacit postulates of the constitution precedent american traditions, customs and practices evidence of contemporary morality considerations of practicality and prudence Constitutional History and Original Intent General Intent Specific Intent
1. 2. 3. 4. 5. 6. 7. -
Atwater v. City of Lago Vista whether the fourth amendment forbids a warrantless arrest for a minor criminal offense such as a misdemeanor seatbelt violation punishable only by fine. - woman drive pick-up with children in car and none of the passengers are wearing seatbelts. this is a misdemeanor traffic offense. - court says that the fourth amendment does not prohibit police officers from arresting for minor offenses. - reasoning is that police cannot be required to know the extent of the offense off hand while in the field. Mapp v. Ohio police were looking for a person wanted for questioning in connection with a recent bombing. police broke down the door to the appellants home to gain entrance. police did not have a search warrant or an arrest warrant. - appellant was convicted of being in possession of lewd and lascivious books. in violation of ohios revised code. - state relies on Wolf v. colorado - prosecution in a state court for a state crime, the 14th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. - 4th amendment extended to the states. - exclusionary rule- evidence obtained in violation of the 4th amendment is excluded from evidence. (implied Remedy) - extends to state courts as well. Remedies for Violation of the 4th Amendment Exclusion- 4 exceptions - Tort Remedy (1983) The Steps in the Criminal Process Report of Crime Pre-Arrest Investigation
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A. B.
C. D. E. F. G. H. I. J. K. L. M. N. O.
Arrest Booking- not subject to miranda rights Preliminary Arraignment- charges read to defendant Continuing Investigation Preliminary Hearing Grand Jury Review Filing the Information or Indictment Arraignment on the information or Indictment Pretrial Motions Trial Sentencing Appeals Post-conviction Remedies
Wrongful Rights- Taslitz article - causes of error- police officer fraud - systemic errors - unintentional false clues - Truth undervalued because of the adversary system Chapter 2: Searches and Seizures: Basic Concepts Searches- almost always of property only. Seizures- of property and persons. B. How To Approach Fourth Amendment Problems Checklist 1: Is there a fourth aMendment Claim? 1. Does the Fourth Amendment Apply? a. Was there government Action? (i) Did the government know of and Acquiesce in the intrusive conduct? (ii) If So, was the private actors purpose to assist law enforcementefforts rather than to further his or her own ends? b. Was There a search or a seizure? (i) was there a search- an invasion of a reasonable expectation of of privacy? (ii)was there a seizure of the person- government action that a reasonable person would believe limited his or her freedom of movement (iii) was there a seizure of a thing- an interference with a persons possessory interest in property. 2. If the fourth amendment applies, does the defendant have standing to object to admitting the evidence? a. did the search affect this defendants reasonable expectation of privacy, freedom of movement, or possessory interests? b. did this defendant have sufficient connections with the american community to be considered a member of the people protected by the fourth amendment. 3. If the fourth amendment applies and the defendant has standing, was the search or seizure reasonable? a. what level of justification- probable cause, reasonable suspicion, or something else- did the fourth amendment require. b. was the level of justification met? c. was a warrant required, or was there an applicable warrant exception? d. If a warrant was required, was the warrant supported on oath by probable cause, issued by a neutral and detached magistrate, and sufficiently particular?
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e. If the search or seizure was accompanied by a warrant, did the police execute the warrant reasonably? If the Fourth Amendment was violated, is the appropriate remedy exclusion of evidence? a. Does an exclusionary rule limitation apply? (i) was the evidence discovered through an independent source? (ii)if not, was the evidence likely to have been inevitably discoveredthrough independent source? (iii) If not was the taint of the constitutional violation attenuated? b. Does the good faith exception apply-- did the police reasonably rely on a warrant?
II. What is a search? - a search conducted w/valid search warrant is certainly a search but it is reasonable and does not violate the 4th amendment. a dog sniff or inspection of an open field is not a search at all and does not even implicate the 4th amendment - search is something that may violate the 4th amendment. - for our purposes it is an invasion of a reasonable expectation of privacy. This comes from the Katz case or can be inferred from the clause. - Objective- court is willing to recognize - Subjective- your own expectation of privacy A. Katz Test- a reasonable expectation of privacy Katz v. United States petitioner convicted of transmitting wagering information by telephone from los angeles to miami and boston in violation of a federal statute. police electronically listened to and recorded the petitioners words as he placed bets in a telephone booth. Is there a reasonable expectation of privacy in a telephone booth? 4th amendment protects people not places - rather certain people in certain places. subj. expectation of privacy in closing the door and paying toll obj. - one who shuts the door and pays the toll is entitled to assume that the words he utters will not be broadcast to the world. Concurrence- sets out 2 fold req. for reasonable exp. more clearly why is exp. objectively reasonable here? is booth like a hotel room here? Two Fold Test: 1. was there an actual expectation of privacy? 2. was it resonable? Dissent: Three points Only physical invasions matter 4th amendment has no application to eavesdropping which framers knew about. FACTORS IN KATZ ANALYSIS Factors that enter into the court weighing process to determine whether fourth amendment applies.
C. a.
LOCATION- Three variations Open Fields (Oliver)- open fields: no privacy right (no search); - Rationales in Oliver- size of property? Criminal Activity? No trespassing signs do not matter. b. Curtilage (Dunn)curtilage: same protection as house - 4 factors - proximate (50 yards) - enclosure - use (associated with privacies of domestic life?)
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- steps taken to protect the barn from observation - industrial curtilage gets less protection c. a. House (4th amendment protection)
2. ASSUMPTION OF RISK Agents/Informants- Hoffa- Hoffa was in hotel room, one of the people he invited in was a police informant. - Lopez- government agent wore a wire. not a search because the government agent heard everything with his own ears, and used the recorder for accuracy. may however have a claim under other wire tap acts. - Lewis- undercover agent bought drugs from the def in his home. No search as home was converted into a commercial center. - White- wire transmitter is ok. b. Pagers/ Pen Registers, Cell/ cordless phones c. Tracking Devices- (Knott)no 4th amendment violation in either the installation or monitoring of beeper - (Karo) Installation of beeper ok but monitoring is too far as events in the house were monitored. d. Aerial Surveillance- no exp. or privacy in airborne observations from public airspace. - 2 cases - Ciraolo and Dow Chemical (same result) D loses b. Thermal ImagingKyllo- Key factor is that the device is not in public use. the imager was used to reveal activities inside the house (where the plants were growing) - device is a passive device not like QRR (which emits radiation) - Obtaining by sense-enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where (as Here) the technology in question is not in general public use. Container Searches
f. a.
Other Factors Property Interests - relevant, but not dispositive. - In special cases of abandonment property, property interests may be dispositive - police chase cases, property is deemed abandoned until capture and before that 4th amendment is not implicated. b. Social Customs- overnight guest might have expectation of privacy. - Carter- visiting a home for only two hours gives no reasonable expectation of privacy. - Olson- privacy interest in the premises because of status as overnight guest. c. Past Practices - Oconner- state hospital administrator had reasonable expectation of privacy in his office, even though in government offices many others-- fellow employees, supervisors, consentual visitors, and general public have access to the office. d. legality of activities- known before search, not after. e. vantage point f. Reduced exp. of privacy- (schools athletes, vehicles) - age relevant - type of search relevant D. SUBPOENA5
- a subpoena is generally neither a search nor a seizure. However, an unreasonably broad subpoena may implicate the fourth amendment. 1. 2. 3. 4. 5. 6. IV. A. Montoya - Hernandez Suspicionless Mere Suspicion Reasonable suspicion Probable Cause Clear and Convincing Beyond reasonable doubt III. What is a Seizure? Depravation of liberty interest seizure broader than Arrest Seizure of persons Seizure of Things Meaningful interference w/ possessory interest Standing, or Who may Complain About Searches and Seizures? THE RAKAS TEST 1. Injury in Fact 2. Assertion of Own Legal Rights, Rather than Rights of a Third Party?
B. AUTHORITY, LEGALITY, AND STANDING - Two Issues Arise - Legitimately on the Premises Test. - Defendants who cannot establish that they were on the premises legitimately, cannot establish they reasonably and legitimately expected privacy in those premises. - Rental Agreement expressly forbade any use of the car for illegal purposes. - use unauthorized, no standing. B. STANDING IN THE BUSINESS CONTEXT - Where evidence is seized from an employees work area, courts applying this test generally find that the employee has standing. but where the area searched is not part of the employees work space, courts find no reasonable expectation of privacy. V. Government Action Requirement - A person aggrieved because of an allegedly illegal search or seizure must establish more than standing to obtain relief. - Government Action Requirement- the search or seizure must have been accomplished by a government actor, as opposed to a private party. - individuals who act on behalf of the state and local government bodies must also abide by the limitations of the fourth amendment. - For a private individual to be considered an agent of the government we look at 2 Factors - 1. whether the government knew of an acquiesced in the intrusive conduct, and - 2. whether the private actors purpose was to assist law enforcement efforts rather than to further his own ends. Vienna Convention***
- Business Nexus Test- employee enjoys a reasonable expectation of privacy in his work space.
VI.
Searches and Seizures Outside the US Territory
United States v. Verdugo-Urquidez - Privilege against self incrimination guaranteed by the 5th Amendment is a Fundamental Trial Right of Criminal Defendants. - A constitutional violation occurs only at trial. - Unreasonable searches and seizures whether or not the evidence is sought to be used at criminal trial, violation of the amendment is accomplish at the time of the unreasonable search or seizure. - If there was a violation, it occurred solely in mexico. - Issue: whether evidence obtained from respondents Mexican Residences should be excluded at trial in the united states is a remedial question separate from the existence vel-non of the constitutional violation. - certain rights and powers are reserved to the people. - respondent is an alien who has no previous significant voluntary connection with the United States. - Is there 4th Amendment Issue? - Is there voluntary attachment to the United States? no - Who is Performing the Search? US or Foreign Agents? - Is the Property inside or outside the territory of the US? outside - Is the person asserting the violation a citizen or no? no - legal or nonlegal? not relevant Staino 690 F. Supp 406 (factor relevant to deciding if there is joint action) Exception to the Joint Venture Doctrine - If not a joint venture, 4th amendment does not apply. - Suspect not treated well while in custody, so that treatment shocks the conscience, evidence may not be allowed in court. Border Searches - Border Searches are 100 Miles from the border. - Distinguish - Searches of Persons - Searches of Property - Routine - Non-routine - Routine, suspicion-less, warrantless searches at the border are ok. United States v. Flores-Montano - appropriate scope of border search. - customs officials removed and searched the gas tank of a car at the border. VII. Reasonableness Balancing: An Introduction and Sliding Scales A. REASONABLENESS BALANCING DEFINED - When the Court Determines that the Fourth Amendment Applies, it must determine whether the search or seizure was reasonable. - this involves weighing the governments interest against the individuals interest. - If government actors engage in traditional law enforcement search or seizure, then the warrant clause applies.
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- Warrant clause requires a warrant or recognized exception to the warrant requirement as well as reasonable government conduct. The reasonableness of the government actors conduct is evaluated by balancing the governments interest against against the interest of the private individual. - If instead the government actors engage in a search or seizure Barona - Barona and Bennett are US citizens. Two searches took place. One in a residential home in Italy and in Denmark. No Joint venture between countries. - Second search was a wiretap on a telephone. Reasonableness of a Search: - Good Faith Exception- if the US government was told by the Government in Denmark that the wiretaps are ok according to their law, the US government can rely on that claim in good faith. - no requirement of being told about the laws for good faith exception. Police need only to believe in good faith. - Lack of Compliance with local laws creates a presumption of Unreasonableness. Peterson- There was voluntary attachment plus joint venture for some defendants. Thus 4th amendment applied to some defendants and reasonableness of the searches had to be determined. - wiretaps not legal in the Phillipenes. Police operated under good faith belief that they were, therefore the wiretaps were reasonable. - search warrants to be executed between the hours of 6am and 10pm VIII. 1. PROBABLE CAUSE Checklist 2: When is There Probable Cause Was probable cause based upon a tip? if yes: a. is the informant credible- likely to be telling the truth i. has he given previous accurate tips? ii. is he an ordinary Citizen or a stoolie, part of the world of criminality? iii.is his statement against his interest, implicating him in criminal activity? iv. does he have a reputation for truthfulness? v. does the accused have a reputation for engaging in the sort of crime alleged? vi.is there corroborating evidence? if so, does it corroborate innocent facts, facts more consistent with criminality, facts true at the time of the tip, or facts predicted by the tip to come true? b. Is the Informant reliable-- likely to have had an adequate basis of knowledge? i. Did the informant personally observe or participate in the criminal activity? ii. did the informant set out such detail information as to suggest that he must have an adequate basis of knowledge? iii.Is there corroborating evidence? If so, does it corroborate innocent facts, facts more consistent with criminality, facts true at the time of the tip, or fact predicted by the tip to come true? c. Are there other reason to credit the tip? Does the totality of the circumstance establish probable cause-- a substantial chance of guilt? Only required for a full custodial arrest Warrant Warrantless search only in 6 exceptions. Defined probable cause existed where the facts and circumstances within their knowledge and of which they have reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief.
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- Substantial chance that a crime has been or is being committed. can include crimes that are about to be committed. Establishing P.C. BeckGates- probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. WhrenProving Probable Cause- Aguilar-Spinelli Test - Credible - against Interest - prior accurate tips - reputation for truth - Reliable - Informant Observed or participated in activities reported - detailed tip - nature of tip - Gates - Totality Of the circumstances to be considered along with Aguilar-Spinelli Test 1. QUANTIFYING PROBABLE CAUSE - Probable cause exists where information narrows the scope of suspicion to a fairly small group, although it does not exist where information permits suspicion of large numbers of people. - Gates- probable cause hovers just over or just under 50% mark - Pringle- three person in a car arrested for possession after a search of the car. Police found drugs stuffed in the armrest of the rear passenger seat. question was whether the police officer had probable cause to arrest one or all three of the persons in the car. - Ybarra- a policy of arresting everybody until somebody confesses is unconstitutional. - however, in Pringle, officer could arrest all three occupants, because he had probable cause that one of or all three were involved in the crime of possession of drugs. 2. PROBABLE CAUSE AS AN OBJECTIVE, USUALLY INDIVIDUALIZED DETERMINATION THAT TURNS ON THE COLLECTIVE KNOWLEDGE OF THE LAW ENFORCEMENT Alford- probable cause is an objective measure, and is seen in relation to the knowledge of the entire law enforcement knowledge, not solely the arresting officer.
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Proving Probable Cause: The Gates Test INFORMANTS TIPS AND THE AGULAR-SPINELLI TWO-PRONGED TEST Aguilar- Spinelli Test: 1. Was the Informant Credible? - against interest? - prior accurate tips? - reputation for truth? 2. Was the informant Reliable? - whether the informant personally observed or participated in the activities reported in the tip; - whether the tip ws so detailed that the informant must have first hand knowledge - whether the nature of the information contained in the tip, or the manner in which it was gathered, indicate that it could come only from personal knowledge or a highly reliable source.
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2. THE PROBLEM OF ANONYMOUS TIPS - confidentiality of informants is hard enough, burdened even more when informants are confidential or anonymous. 3. THE GATES TEST FOR PROBABLE CAUSE - In Illinois v. Gates, the court abandoned the Agular-Spinelli Test, in favor of a totality of the circumstances approach. - actually a combination of both tests. - footnote 171: probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Pocket Warrant- if cannot get an arrest warrant, pocket warrants allow police to bring people in for questioning. Redding- school search; reasonable suspicion. search of a pat down and search of backpack is reasonable search under the circumstances. There was no reason to believe that the girl would be hiding pills any other place, so the strip search was unreasonable. - School searches no always require reasonable suspicion. - School athletes it is still ok to do suspicion-less searches. Montoya-
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Suppression Motions p.247 search with a warrant is presumed to be constitutional. burden is on the defendant to prove it is not constitutional. - if burden is met, burden shifts to the prosecutor to prove exceptions. Franks Hearing- hearing to decide whether officer has lied in an affidavit to procure a warrant; Franks hearing granted after substantial showing of wrongdoing at the suppression hearing. many defendants cannot win their suppression motions unless they testify although testimony might incriminate them. Havens rule- testimony can only be used against the defendant for impeachment purposes; not substantive purposes (proof of wrongdoing). Similarly, Maranda barred statements can be used for impeachment, but not subst. Statements that violate Due Process cannot be used at all. Chapter 3: SEARCHES AND SEIZURES: WARRANTS AND DETENTIONS
A. OVERVIEW OF SEARCH AND ARREST WARRANTS - This chapter deals with types of warrants, and issues that arise in issuance and execution of warrants. - Many traditional searches take place w/o warrant (b/c police can find an exception. Exceptions are in Chapter 4) Some dont require warrants at all - Terry (frisks or stops)Types of Warrants: - Usual Probable Cause Warrants-
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Telephone WarrantsAnticipatory WarrantsReasonable Suspicion WarrantsPocket WarrantsAdmin (Area) Warrants- Auto Stops- outside a bar - Electronic Surveillance Warrants (ch. 6) - FISA Warrants (Counterterrorism) 3. A. Traditional Warrants What is a Warrant? - Typically 4 Parts - An Application- Affidavit (maybe more than one)- how one found probable cause - Actual Order- Warrant for Search or Arrest. Must recite the probable cause, or recite where probable cause is stated. - Return and Inventory- What was seized. Defendant Gets- the warrant and affidavit establishing probable cause, and the return, this is established by Rule 41 (p. 253) but is not in the text of the 4th amendment. 3.2 Example of warrant: p. 242 OK City Warrants 4. 1. 2. Issues to be discussed for Warrants I. Warrant ContentWas the warrant application sufficient? a. Was the application accompanied by an affidavit made under oath? b. did the affidavit establish probable cause? Was the Warrant Issuance Proper? a. Was the warrant issued by a neutral and detached magistrate? b. did the warrant describe the places to be searched, and items or person to be seized, with reasonable particularity at the time warrant was issued, based on facts learned after reasonable investigation? Was the warrant execution reasonable? a. Reasonable Precise execution and Mistakes (garrison, Hill) b. executed within daytime hours (6am-10pm), and within 10 days of its issuance? or were there objectively reasonable grounds for its execution? c. Did the officers knock and announce their presence? or were there objectively reasonable grounds for failure to do so? d. did officers act reasonably in dealing with persons encountered during the warrant execution? - treatment of individuals during execution? - protective frisks, restraining persons present? - when does D get to see the Warrant? Particularity (as Issued) The Warrant itself must be Particular. - Because the warrant itself is the only paper regulated by the 4th amendment - Or attach the affidavit which is sufficiently particular to the warrant and incorporate by reference. otherwise the warrant is not valid as issued (Groh v. Ramirez) 4.3 Scope and Authority of Magistrate in Issuing Warrants: - not in the 4th amendment but see Rule 41(b) p. 264 - Note Terrorism Warrants R 41(b)(3) Andresen v. Maryland
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3.
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- PROCEDURAL POSTURE: Certiorari was granted to review from a judgment of the Court of Special
Appeals of Maryland, which held that search warrants were supported by probable cause and did not authorize a general search in violation of U.S. Const. amend. IV, and that the search had not violated petitioner's U.S. Const. amend. V rights because petitioner was not compelled to do anything. - OVERVIEW: The introduction of petitioner's business records into evidence was not a violation of his U.S. Const. amend. V, self-incrimination privilege. Petitioner, as the closing attorney, was convicted of false pretenses for defrauding a purchaser of property. Investigators obtained a search warrant to search petitioner's offices for evidence of the crime. Petitioner argued that the admission of his business records, which contained statements made by petitioner, compelled petitioner to testify against himself in violation of U.S. Const. amend. V. The court disagreed, holding that petitioner was not asked to say or to do anything. Thus, the introduction into evidence of petitioner's business records seized during an otherwise lawful search did not offend or undermine any of the policies undergirding the privilege. The court also rejected petitioner's argument that the searches were unreasonable because they were based on general warrants. The warrants referred only to the crime of false pretenses and were sufficiently specific. - OUTCOME: The court affirmed the judgment. Maryland v. Garrison - the warrant is to be evaluated at the time it was issued and according to the information that the officers disclosed, or should have disclosed, to the issuing judicial official. C. Neutral and Detached Magistrate Rule 41: Authority to issue a warrant. At the request of a federal law enforcement officer or an attorney for the government; (1) a magistrate judge with authority in the district-- or if none is reasonably available, a judge of a state court of record in the district-- has authority to issue warrant to search for and seize a person or property located within the district. (2) A magistrate judge with authority in the district has authority to issue a warrant for person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed. (3) A magistrate Judge--- In an investigation of domestic terrorism or international terrorism (as defined in 18 USC 2331) ---having authority in any district in which activities related to the terrorism may have occurred, may issue a warrant for a person or property within or outside that district.
- Affects the Validity of Issuance (Loji, Sales and Connely)

(b)
D. Anticipatory Search Warrants - Forward looking warrants to be executed upon the occurance of conditions precedent (called Triggering Conditions). The affidavit will state that the evidence will be at that location (fair probability) and that the area to be searched if the triggering condition is met and there is a fair probability also that the triggering condition will be met. see 270. - Such warrants are constitutionally valid both as to issuance and execution if the conditions stated above are met. - What portion of an anticipatory warrant does D get to see? see Grubbs. II. Execution of the Warrant: A. MISTAKES IN EXECUTING THE WARRANT - A common problem involves the particularity where One residence is in fact two separate residences.
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- if it can be determined which residence is covered by the warrant, the warrant may be executed, if not, must go back to the drawing board. Maryland v. Garrison 480 us 79 - PROCEDURAL POSTURE: Defendant was convicted of violating Maryland's Controlled Substances Act after marijuana and related paraphernalia were discovered in his apartment. Defendant filed a motion to suppress the evidence seized from his apartment, which was denied by the trial court. The state court of special appeals affirmed, but the Court of Appeals of Maryland reversed and remanded with instructions to remand the case for a new trial. Certiorari was granted. - OVERVIEW: The evidence had been seized in a search conducted pursuant a warrant that specified a location of "the premises known as 2036 Park Avenue third floor apartment." The police reasonably believed that there was only one apartment on the premises described in the warrant. However, there were two apartments on the third floor. Before the officers executing the warrant became aware that they were in a separate apartment occupied by defendant, they had discovered the contraband that provided the basis for defendant's conviction. The question presented to the Court was whether the seizure of the contraband was prohibited by the Fourth Amendment. The Court held that the warrant was valid when it was issued and the manner in which it was executed was reasonable. The validity of the warrant was assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing magistrate. The officers' execution of the warrant reasonably included the entire third floor, and their conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. - OUTCOME: The Court reversed the judgment of the state court of appeals and remanded the case for further proceedings not inconsistent with the Court's opinion. Hill- Police wanted miller, but arrested Hill, thinking he was miller. B. Time and Manner of Execution
Rule 41 (p.277)- Warrant must command officer to: (A) Execute a warrant within a specified time no longer than 10 days. (B) execute the warrant during the daytime unless the judge for good cause expressly authorizes execution at another time; and (C) Return the warrant to the magistrate judge designated in the warrant - How long do officers need to wait after knocking and announcing? - United States v. Banks- 15 to 20 seconds OK. - Implications of violation of knock and announce? - Hudson v. Michigan- Exclusionary Rule does not apply to violation of knock and announce. - Remedy of civil damages. - Treatment of Property During Search - Manner of Entry: excessive or unnecessary destruction of property during forcible entry may violate the 4th amendment but there is no exclusionary remedy for this violation See: Ramirez p 279 - Treatment of Individuals During Warrant Executions. - Must be objective reasonable given the circumstances. See these cases - Mena (can Handcuff Person)
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- Rettale (Order out of bed at gunpoint) - Can persons be frisked? (not in Ybarra(Persons at tavern)).
- Protective Sweep p.283 authorized when an arrest takes place in a residence (Buie). Police may search an area immediately adjacent to arrestee for confederates and areas where they have a reasonable suspicion that others are present who might pose a danger to officers. - aimed at protecting the officers, and if authorized is nevertheless not a full search of the premises. only search place where a person may be found, and the search is over as soon as reasonable suspicion of danger is dispelled. - Note: for areas immediately adjacent, protective sweep can be suspicionless. for other parts of the house, reasonable suspicion may be necessary - Terry Rule- Permits officers in all situations to frisk individuals for weapons if reasonable suspicion exists to believe that those individuals are armed and dangerous. - Media Presence- Media may not accompany police on execution of warrants. only remedy for violation would be damages. III. Computer Searches - Issuance of Warrants: Particularity in Issuance of Warrants is often lacking (warrant may say any and all computers but are seldom challenged by defense council. - All Records Exception: - All records can be in a warrant application only if the entire business is a fraud. - If the business engages in any legitimate transactions, this will not do. - Application to home computers. will be very hard to state that all work conducted at home on computers is illegal. Cannot say all home computers without connecting probable cause to all home computers. - Distinguish search for digital evidence from search of hardware itself. - hardware itself (computer is instrumentality of crime itself and can be seized outright; - DOJ Guidelines p.296 - Intermingled documents - Puzzles/unresolved questions for digital searches - hardware v. digital evidence on hardware should be distinguished in the warrant. - where is the digital evidence? local hard drive? Network or server?
IV.
ARRESTS Checklist 4: Arrests 1. Definition of Arrest a. Was there a seizure of the suspect-- would a reasonable person in the suspects situation believe that he was not free to leave, and did police physically stop the suspect or by a show of authority cause the suspect to submit? b. If yes, did it so intrude on the suspects freedom of movement as to constitute an arrest? 2. Justification for arrest a. Was the arrest based on probable cause? b. if yes, did the police have an arrest warrant? c. if yes did the arrest occur in the home? d. if the arrestoccured in the home of a third party, did police have a search warrant or other justification for entering the home? e. If the police did not have a warrant, did the arrest occur on a public street? 3. Manner of arrest a. did the police use deadly force to arrest?
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b. If yes, did the police have probable cause to believe that the suspect: i. was fleeing; and ii. posed an immediate threat of serious physical harm to the officer or others? c. If the police did not use deadly force, was their fore reasonable considering i. the severity of the crime ii. the threat to police officer and public safety; and iii.the suspects flight or resistance 4. Prompt Probable Cause Determination a. Was the arrested suspect given a judicial determination of probable cause within 48 hours of arrest? i. If yes, can the arrested suspect demonstrate that the determination was nonetheless unreasonable delayed? ii. If no, can the government demonstrate a bona-fide emergency or other extraordinary circumstance justifying the delay? b. was any evidence such as confession, obtained because of the delay? ------------------------------------------------------------------------------------------------------------- Seizure is Broader than Arrest - Almost all cases of seizure or arrest requires probable cause - When is there a seizure? A. Requirement of Reasonableness - Main requirement is reasonableness. - 1. Seriousness of the offense? - 2. level of suspicion necessary? - 3. requirement of a warrant? - 4. the use of force? Post Arrest Matters: - Was there a prompt Gerstein (Arraignment) Hearing? within 48 hours. Unless can be shown that there was a reasonable delay. Was there a Seizure at all? - Hodari p.310 A fleeing suspect is not seized until he surrenders to police is physically stopped by intentional application of force. Was the offense serious enough for an arrest?
- State Law Decides what is an arrestable offense- Atwater. - However, there is a uniform federal standard irrespective of state law. the arrest in Moore for a citation
only offense did not violate the 4th amendment. even if violated Va state law. Even if warrant is normally required, an exception may apply - Hot pursuit Note: Kaupp and Hayes: there may be a warrant based on reasonable suspicion that will justify a seizure. Was the Manner of Arrest Reasonable? - Force may be used if arrest is resisted or suspect attempts to flee but must be reasonable under the circumstances. - Even deadly force can be reasonable (Garner) but must be decided on case by case basis. (NOTE: deadly force may even be used to prevent escape, not just if officer is threatened.
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- May use deadly force if suspect imposes an immediate threat to officer or others - May shoot a knife wielding suspect keeping a safe distance Types of Deadly Force - Firearms - Chokeholds - Knives Precisions Intervention Techniques B. Requirement of Prompt Arraignment - Because a warrantless arrest might be reasonable does not mean that a defendant has no right to a judicial determination of probable cause. - Gerstein v. Pugh- officers probable cause judgment justifies only a brief period of detention to take administrative steps incident to arrest. - Gerstein hearing (arraignment) muse take place within 48 hours. - If delay beyond 48 hours is due to ill will against the defendant then the delay is unreasonable. - Remedy for Gerstein violation is immediate probable cause determination or immediate release. V. 1. Stop and Frisk Checklist 5: Evaluating Stop and Frisks Was there a stop? a. Did the officer act in a way that would permit an individual reasonably to believe that his or her freedom of movement was significantly restricted? b. If so, was the restriction limited in duration, location, and intensity? Was the Stop justified by reasonable suspicion that the person was about to commit (or had committed) a crime? Was there a Frisk? a. Did the officer invade the individuals reasonable expectation of privacy in his or her person? b. If so, was the invasion limited to a brief patdown of the surfaces of outer clothing? was the frisk justified by a reasonable suspicion that the person was armed and dangerous?
2. 3. 4.
- distinguish Stop and Frisk from Arrest - Stop and Frisk- REasonable suspicion to stop person and question in regards to suspicious activity, and a frisk of their person for weapons, or any evidence of crime of which the reasonable suspicion is based. - Arrest- Seize a person because there is a high probability that a crime has been committed, or about to be committed. A. Landmark Case of Terry v. Ohio Terry v. Ohio - Terry was convicted of carrying a concealed weapon. Police observed terry and another walking past and looking into a store, after each pass, the two met up on the corner and conferenced as to what they saw. police thought the two were casing the store for a hold up. - police then stopped the two for questioning as to their suspicious behavior. - he frisked them to make sure they were not carrying weapons that could be used against him. - he found guns on both. - Question is whether this is an illegal search. - Held, not illegal. - The stop was a seizure for 4th amendment purposes but is a warrantless seizure. Reasonable clause must be applied. - balance between government and private interest.
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1. 2. B.
2 types of reasonable suspicion Reasonable suspicion that criminal activity is afoot. reasonable suspicion that a suspect is armed and dangerous justifying a frisk for weapons. Defining the Levels of Interaction Level 1: Voluntary Encounter Level 2: Stop and Frisk Level 3: Arrest
Freedom to Leave Test Seizure Occurs when in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. - Appropriate test was not whether a reasonable person in his situation would have felt free to leave, but whether such a person would feel free to decline the officers requests, or otherwise terminate the encounter. Fla. v. Bostick - Buss Cases p. 343 - Bostick- Drayton- Traffic Stop a Terry Stop (Arizona v. Johnson) - passengers are also seized. Stop test automatically met as to the stop of the passengers, but not to the frisk. Must have reasonable suspicion that each passenger is armed in order to frisk. - Refusal to answer questions - must answer questions reasonably related to the scope to the circumstances which justify the initial stop. 2. Stops Versus Arrests a. Length of Detention- 90-min was too long for terry stop, and had ripened into a full blown seizure. b. Place of Detention- (mimms) allows police to order stopped passengers out of the car for safety. - detentions that move beyond immediate vacinity are likely to be considered arrests. C. Sufficiency of Facts for Stop and Frisk - Stop and frisk activity, like full blown searches and seizures, must be justified by facts that give rise objectively to a certain level of suspicion that criminal activity may be afoot. - quantum and quality of evidence may be less than that necessary for Probable cause. - Ordinary Searches and Seizures, of course, must be supported by probable cause. - in defining the weight due certain facts, the court gave little weight to facts consistent with innocent legal behavior. United States v. Arvizu p.357 - Must look at totality of circumstances and determine that there is a particularized and objective basis for suspecting legal wrongdoing. 1. QUANTUM OF EVIDENCE FOR REASONABLE SUSPICION - Presence in a High crime area is a factor, but cannot be determinative. - Flight from officers in a high crime area was enough in Illinois v. Wardlow 2. QUALITY OF EVIDENCE FOR REASONABLE SUSPICION - reasonable suspicion is a less demanding standard than probable cause
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- Like Probable Cause, Reasonable Suspicion is dependent on both the content of information possessed by police and its degree of reliability. - Anonymous tip was not sufficient D. 2. 3. Profiles Drug Courier Profiles: Constitutionality - 1. the fact that a person matches a profile does not in itself, give rise to reasonable suspicion. - 2. officers may rely in part on the cumulative law enforcement wisdom embodied in profiles when assessing the inference that may be drawn from a persons conduct or attributes. - 3. the fact that a person matches a profile does not detract from the inferences that might reasonably be drawn. CHAPTER 4: SEARCHES AND SEIZURES: WARRANT EXCEPTIONS Checklist 6: Is a warrantless search or seizure Permissible?
1.
Is a warrantless search and seizure justified as part of a Search Incident to Lawful Arrest (SILA)? a. Did the warrantless search accompany a lawful custodial arrest? b. was the search limited to the wingspan of the arrestee, that is, the area from which he might grab weapons or destroy evidence? i. If yes, and the law enforcement encounter was initiated while the arrestee was in a vehicle, was the search within the passenger compartment of the vehicle? ii. If no, was the search confined to the areas from which an attack on the officers might immediately be launched? if not, did the officers have reasonable suspicion to to believe that a confederate in the criminal activity who poses a danger to the officer or others might be hiding in the area searched? c. Was the search substantially contemporaneous with the arrest--did it occur shortly before or after the arrest? d. for items seized as a result of the search, did police have probable cause to believe that those items were contraband, fruits, evidence, or instrumentalities of a crime?
2.
Is a warrantless search justified by Exigent Circumstances? a. were the police pursuing a fleeing felon? If not b. did the police have probable cause to believe that the search would uncover contraband, fruits, evidence, or instrumentalities of a crime? i. Did the Circumstances present a threat to officer or public safety or to the integrity of the evidence? ii. was the government interest in the warrantless activity of sufficient gravity to outweigh the individual interests at stake? Is a warrantless seizure justified by the Plain View Doctrine? a. Did the police view (or feel or smell or hear) the items seized from a lawful vantage point? b. was the incriminating nature of the items immediately apparent-- in other words, did police have probable cause to believe that the items were contraband, fruits, evidence, or instrumentalities of a crime. c. Did police have a lawful right of access to the items? Is a warrantless search justified by the Automobile Exception? a. Was the search limited to a motorized vehicle that is presently capable of mobility? b. did police have probable cause to believe that the vehicle contained contraband, fruits, evidence, or instrumentalities of a crime?
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3.
4.
5.
6.
Is a warrantless search and seizure justified by Special Governmental Needs? a. Was the warrantless activity undertaken to advance a non-criminal investigation-related purpose? b. was the warrantless activity reasonably necessary and effective in advancing that purpose? c. was the governments interest of sufficient gravity to outweigh the individual interests at steak? i. Did the government have special needs? ii. did the search involve a pervasively regulated industry or another area with low expectation of privacy? iii. Did the search involve a minimal amount of officer discretion and a minimal intrusion on privacy interests? Is a warrantless search and seizure justified by consent? a. did an individual voluntarily consent to the search or seizure? b. was the search or seizure confined to the scope of the consent-- in other words, to what a reasonable person would have understood the consent to mean. c. was the consent given by an individual with actual or apparent authority?
B. SIX CATEGORIES OF WARRANTLESS SEARCHES 1. Searches incident to Lawful Arrest: - Traditional Rule: - Chimel v. California- court limited the scope of the search incident to arrest doctrine, constraining it to searches of: - 1. the arrestees person - 2. areas within the arrestees immediate reach - In order to remove of weapons & seize any evidence to prevent concealment or destruction. - Only applies when a police officer actually effectuates a custodial arrest. Knowles v. Iowa. - Arrest and Search must be contemporaneous. U.S. v. Chadwick. - Close in Time rule- Robbins and Clemons. - unless extenuating circumstances. US v. Edwards. - Application to Automobiles - New York v. Belton Per Se Rule- when a police officer lawfully makes a custodial arrest of an automobile occupant, the officer may search the entire passenger compartment of the vehicle incident to arrest. - Officer may examine the contents of any containers within the passenger compartment since those containers and their contents would have been within that area of per se control. - Belton Applies to Automobile Occupants. - Thornton v. United States- Belton rule applies regardless of whether the police interaction was initiated before or after the suspect left the vehicle. - Arizona v. Gant- two part currently governing rule - 1. chimel and Belton authorize a search of a vehicle incident to a RECENT OCCUPANTs Arrest when the following is true - arrestee is unsecured and within the reach of the passenger compartment at the time of the search. - 2. the entire passenger compartment of a vehicle of a current arrestee may be searched incident to arrest as well when it is reasonable to Believe that evidence relevant to the crime of arrest might be found in the vehicle. - Gant only applies to automobile arrestees - Protective Sweeps- Maryland v. Buie - Court decision in chimel to limit the search incident to arrest doctrine to areas within the arrestees wingspan.
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- The court has created a rule permitting in every in-home arrest a protective check of areas adjacent to the arrest from which an attack might be launched against the arresting officer and broader protective sweeps of specific areas in which the officer has a reasonable suspicion that confederates who pose danger to the officer or others may be lurking. 2. EXIGENT CIRCUMSTANCES- presence of exigent circumstances in which time is of the essence
- Exigent Circumstances/ Emergency Doctrine- (1) probable cause for search or seizure exist and (2)
there are sufficient exigent circumstances to justify the warrantless activity. - Hot Pursuit- Permits officers to enter premises without a warrant if (1) they are in pursuit of a fleeing felon and (2) that pursuit began in a public place, in which officers could have made a warrantless arrest. - If officers clearly had time to obtain a warrant, their claim for exigent circumstances should fail. 3. PLAINT VIEW TOUCH AND SMELL - Plain View Doctrine- depends of the Presence of three elements - 1. it is essential that the officer did not violate the fourth amendment in arriving at the place from which the evidence could be plainly viewed - 2. its incriminating character must . . . be immediately apparent - 3. officer must also have a lawful right of access to the object itself. 4. VEHICLE AND CONTAINER SEARCHES - Vehicle Searches General Rules - Automobile Exception- to the warrant requirement permits warrantless searches of motorized vehicles whenever law enforcement officials have probable cause to believe that fruits, evidence, or instrumentalities of criminal activity will be found therein. vehicle searches require only probable cause in order to satisfy the 4th amendment. Mobility and Privacy Rationales- The fourth amendment does not require a warrants for vehicles because they may disappear before a warrant can be obtained. Factors in Distinguishing Mobile Homes From Residences - Location, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to public roadway. Containers Within Vehicles- There are no boundaries on container searches other than probable cause. Officers may search containers in vehicles so long as they have probable cause to believe that the objects of those searches may be found therein. When there is probable cause to search for contraband in a car it is reasonable for police officers-- like customs officials in the founding era-- to examine packages and containers without a showing of probable cause for each individual container.
5. SPECIAL NEEDS SEARCHES AND SEIZURES - Special Needs searches and seizures are those conducted for a non- criminal investigation- related purpose. These are sometime referred to regulatory, or administrative searches or seizures. Jogi v. Voges 425 F3d 367 Facts: - citizen of india and emigrated to the US in 1990. 95, charged with aggrevated battery with a firearm. when jogi surrendered, he was taken to a conference room with two investigators carper and voges, and his mother was in the room as well. Police did not inform him of his right to contact indian consulate as written in the vienna convention. Jogi brought a cause of action against investigators.
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- Issue- is the vienna convention self executing and if so, does it create an individual right available to Jogi that can be enforced in court. - Two Steps in Analysis of Special Needs Cases: - 1. A court must determine whether the governmental purpose truly is regulatory rather than criminal law enforcement; - 2. If the purpose is regulatory, the court must balance that regulatory interest against the individual interest infringed upon. a. Determining governmental purpose- If a purported administrative purpose is just a smokescreen to circumvent the usual warrant and probable cause requirements, the search or seizure will not fall into the special needs category and will be subjected to ordinary fourth amendment analysis. b. Balancing the Interests- 1. the weight of the states purported non-criminal-investigation interest must be determined. - the effectiveness of the chosen means in attaining the states goals; and - the availability of other, less restrictive alternative means for pursuing those goals. - 2. The degree of the individuals interest must be gauged. searches and seizures of cars or businesses are viewed as less invasive than are searches and seizures of homes or persons. - 3. Limitations must be placed on the discretion of the government actors. There must be other adequate procedures designed to avoid abuse of government discretion. Recognized areas of Special Needs Health and Safety Inspections - local fire codes require the installation of smoke detectors in residences and certain other types of buildings, and local inspectors are authorized to conduct searches to ensure compliance with the requirement. it would be burdensome and dangerous to require a warrant for these inspections.
c. (I)
(II)
Pervasively Regulated Industries New York v. Burger - Junkyard business was a pervasively regulated industry in which warrantless administrative inspections were appropriate; - New York Court of Appeals reversed. This was unreasonable search as its purpose is to uncover evidence of criminal activity. Drug Testing
(III)
Board of Education v. Earls - Upheld suspicionless drug testing of students involved in any competitive extracurricular activity - fact specific balancing of the intrusion on the childrens fourth amendment rights against the promotion of legitimate governmental interests. - 1. student privacy interests were limited in the context of extracurricular activities. - 2. the intrusion on those interests was negligible, and - 3. the school districts interest was important. Safford v. Redding - strip seaching a thirteen year olds bra and panties for the forbidden (by school policy) over the counter drugs ibuprofen and naproxen, by school administrators violated the fourteenth amendment. Skinner v. Railway Labor Executives Association
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- court upheld validity of federal railroad admin regulations that mandate blood and urine testing of employees after certain train accidents to uncover drug usage and authorize breath and urine tests for employees violating certain safety rules. - ok because of the public safety element. Skinner Balancing - 1. Government interest in ensuring the safety of the traveling public was great - 2. standardized nature of the test minimal discretion given to those charged with enforcing the regulation. - 3. evidence might dissipate during time needed to get a warrant - 4. employee consent to significant restrictions on his freedom of movement were necessary for his employment - 5. privacy interests of the employees were deminished by their participation in the industry. - 6. the means chosen was sufficiently effective to deter employees engaged in safety sensitive tasks from using controlled substances. National Treasury Employees Union v. Von Raab - upheld customs service mandatory urinalysis for three types of jobs or promotions: - 1. drug interdiction - 2. carrying of firearm - 3. handling of classified documents (IV) Searches of Probationers and Probationers Residences
Griffin v. Wisconsin - reasonable grounds to suspect the presence of contraband- violation of probationary terms Probationers: United States v. Knights - Knights probation order included a condition requiring him to submit his. . . person property, place of residence, vehicle, personal effects, to search at any time, with or without a warrant, or reasonable cause by any probation officer or law enforcement officer. - probation status reduced his expectations of privacy and liberty, and it heightened the states interest in his activities. - Held: balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationers house. Parolees: Donald Curtis Samson and Deborah Watson - petitioner was on parole walking with his friend deborah and ms watsons 3 yr old son. - Held: Parolees have fewer rights than probationers because parole is more akin to imprisonment than is probation. Therefore suspicionless searches are allowed. - Reasoning: A parolee is released before his incarceration ends on a condition that he abide by the rules for the balance of his sentence. (V) Searches and Seizures by Customs and Border Patrol Officers United States v. Martinez- Fuerte - Court approved suspicionless border checkpoint - border checkpoints advance the governments interest in controlling the influx of illegal aliens.
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- Minimal intrusiveness because drivers were warned of the checkpoints by signs. (VI) United States v. Montoya de Hernandez 19 hour detention of a person suspected of smuggling drugs in her alimentary canal. customs agents had reasonable suspicion that she was smuggling because of her origin (bogota) and her many trips back and forth from bogota to US. She had no family or friends in the US. she had been wearing two pairs of elastic underwear, and paper towels in the crotch ares. Fourth Amendments balancing of reasonableness is qualitatively different at the international border than in the interior. Roadblocks - Sobriety Checkpoints are ok. Roadblock to check for license and registration is ok suspicionless stop of an individual just to check for license and registration is not ok. Exigent Circumstance exception to special needs for stops - loose terrorist or dangerous criminal Narcotics checkpoints are not allowed.
Delaware v. Prouse - suspicionless stop of one individual to check license and registration - not allowed as an unconstrained exercise of discretion - Standardless discretion Michigan Department of State Police v. Sitz - upheld a sobriety checkpoint that permitted suspicionless stops to check for drunk driving. - all vehicles stopped and briefly checked for signs of intoxication. Brown v. Texas - Three Prong Test for Checkpoint - 1. the gravity of the public concerns served by the seizure - 2. the degree to which seizure advanced the public interest; - 3. the severity of the interference with individual liberty City of Indianapolis v. Edmond - Narcotics Checkpoints not allowed by the fourth amendment. - Constitution forbids highway checkpoints whose sole purpose is the discovery and interdiction of illegal narcotics. - Searches and seizures motivated by the general interest of crime control ordinarily must be based on individualized suspicion. Illinois v. Lidster - checkpoint conducted in the area of recent crime, stopping vehicles and asking for assistance while giving a flyer is ok. - Lidsters van swerved at the stop nearly hitting an officer. he was breathalized and arrested for DUI. Stop was for other than general interest in crime control therefore OK. HIGH RISK WARRANT SERVICE - Reasonableness of no knock warrant taking place between 10pm and 6am can be granted for special circumstances. Knock and Announce- Identity and Purpose
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No-Knock- Exigent Circumstances or pre-planned Dogs- dogs often get let loose or get shot. (VII) Inventory Search p.461 - An inventory Search may itself be justified, however, only if the initial seizure of the property being inventoried was permissible. - purpose to protect the owners property from loss or theft, and the police from unjustified lawsuits arising from such loss and theft while the property is in police custody. - If the Seizure is itself justified, an inventory search of a car may be justified by these non-investigative state interests: (1) ensuring protection of the police department from false claims. (2) protecting inventoried items from theft or vandalism. (3) protecting the police and public from potential danger and, for abandoned cars, permitting the police to investigate who owns the car or whether it has been abandoned. - Inventory Search seems to be Other than general interest in crime control therefore ok. Dakota v. Opperman Inventory search ok because (1) pursuant to lawful impoundment (2) of a routine nature, following standard police procedures (3) for non investigative reasons and not as mere pretext for concealing an investigatory police motive Opperman extended to searches of persons, where person handbag contents were inventoried. - however will not be extended to locked suitcases. Florida v. Wells - Court unanimously rejected attempt to apply inventory search exception when Police opened a locked suitcase during an inventory search where florida highway patrol had no policy concerning when to open closed containers. - Court did say that while some regulations were needed, those regulations could still vest officers with considerable discretion. 6. a. CONSENT Requirement of Voluntariness - Test- Reflects a fair accommodation of the constitutional requirements involved by reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion. - Simple Consent: nothing more than a voluntariness- in other words, the absence of coercion. Ohio v. Robinette- illegal seizure (stop) invalidates consent unless the prosecution can prove that the consent was freely given and was not tainted by the illegality b. Requirement of Actual Authority or Apparent Authority 1. Actual Authority- whether the third party shares access or control over the premises at issue.
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- Exclusive Personal Control- Individuals living in a shared premises can retain areas of exclusive personal control. Most likely, the result would depend on the degree of separation of the private area from the common area being searched. - Doctrine of Consent once Removed- authorized an undercover law enforcement officers entrance into a house at the express invitation of an individual with an authority to consent to the officers entry. 2. Apparent Authority- the consent from the perspective of the objectively reasonable police officer. Illinois v. Rodriguez - warrantless entry of Rodriguezs apartment accompanied by his former girlfriend. She complained that he had beaten her and offered to let them into the apartment (she referred to it as our apartment) - Later discovered that she had vacated and had no legal authority to - Held: So long as the circumstances would have permitted a reasonable officer to believe that the girlfriend had authority, her consent validated the search.
c. Scope of Consent - even if officers obtain a valid consent to search, they must conduct their search within the scope of the consent. TEST: Would the reasonable person have understood by the exchange between the officer and the suspect? d. Withdrawing Consent - An Individual may withdraw consent at any time. - United States v. Carter - Withdrawing consent alone, cannot be a ground for finding reasonable suspicion. CHAPTER 6: SEARCHES AND SEIZURES: Terrorism Surveillance & Special Statutory Powers I. Introduction - Wiretap Act of 1986 protects oral communications (recorded voice and over wires) and since 1986/1994, the ECPA also protects communication transmitted by electronic media such as e-mail wireless phone VOIP phones. - Basic Rule: For oral communications the government cannot eavesdrop w/o one party consent or an intercept order which needs more than P.C. (also needs) II. Constitutional limits on Surveillance Checklist 7: Was the government Surveillance constitutional under the 4th Amendment 1. Was there a search or Seizure? a. was there a search-- an invasion of a reasonable expectation of privacy? b. Had the person given up his or her reasonable expectation of privacy? c. Did the person engage in activities that are open to observation by others? d. Did the persons activities generate record held by third parties? e. Did the person assume the risk of searches by entering certain designated areas such as airports? 2. Does the statute authorizing government surveillance meet substantive Fourth Amendment requirements? a. Probable Cause? b. Particularity?
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c. Neutral and detached magistrate? d. Reasonable warrant Execution? US v. Katz- the government violates the fourth amendment rights only whens its agents interfere with reasonable expectation of privacy. - requirement that government activity that does implicate reasonable expectations of privacy be justified by probable cause or reasonable suspicion, and that any warrants satisfy particularity and executional requirements 1. Surveillance and the KATZ Test: - The reasonable expectation of privacy test is the threshold that exempts much government surveillance from 4th amendment scrutiny. 2. 1. 2. 3. 4. Substantive Fourth Amendment Requirements Probable Cause Particularity neutral and detached magistrate reasonable warrant execution
III.
Statutory Regulation of Surveillance Checklist 8: What level of Protection Does Wiretap Act Provide for the Communication 1. did communications require a SuperSearch Warrant under Title I? a. Did someone intercept an oral, wire, or electric communication i. If the communication was oral, does it meet the KATZ TEST--- were the words Uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation? b. Was the interception accomplished by means of an electronic, mechanical, or other device that was sent through interstate or foreign commerce? c. (now 2d below) covered by Title 2 d. If the interception was of an electronic communication, was it contemporaneous? e. If the communication meets the above requirements, did the government obtain an intercept order that makes stringent showings? 2. Was the communication a stored electronic communication, covered by Title II? a. Was the communication stored electronically, for example in a stored e-mail, voicemail, or a subscriber record maintained by communications service providers? b. If the communication was stored for 180 days or less, did the government have a court order based on probable cause? c. If the communication was stored for more than 180 days, did the government have a subpoena for the communication?
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d. If the interception was of an oral or wire communication, was it contemporaneous, i.e., in transit; or if not, does the interception meet the exception for communications temporarily stored in an electronic system before being heard by the recipient? 3. Is the government Surveillance a pen register or a trap and trace device that would be governed by Title III? a. Did the government certify that the information is relevant to an ongoing investigation? b. Did the government obtain court permission for the pen register or trap and trace device? Relationship between Patriot Act, Wiretap Act and FISA - Wiretap Act- Foreign Intelligence Surveillance Act (FISA)- Patriot Act- Amended both FISA and Wiretap Act. A. Historical Background: - Federal Communications Act, Declaring that no person shall intercept any [wire] communication and divulge it. . . to any person. . . and no person having received such intercepted communication. . . shall divulge it. - limited to telephone conversations as interpreted by the court. - Act did not apply to agents of the government
- Electronic Communications Privacy Act of 1986 (ECPA)- did not apply to agents of the state government. As a result, much eaves dropping remained lawful.
- Wiretap act has been supplemented by the Electronic Communications Privacy Act and the Digital Telephony Act of 1994 to cover the intentional interception by ANY means (including Electronic) of wire, oral, or electronic communications. - remains the dominant statute governing use of mechanical devices to intercept oral wire and electronic communications.
1.
B. The Wiretap Act and its Amendments Hierarchy of Protections a. Super Search Warrant for Contemporaneous Interceptions i. Title I- this part of the wire tap act bans the interception of oral, wire, and electronic communications by means of any electronic, mechanical, or other device Oral Communications (i.e. face to face conversations) are protected only if they meet the Katz test. 1. Oral communications are protected only if the device used to intercept them has been sent through interstate or foreign commerce ii. Title I of the Act only covers contemporaneous interception of these three types of communications-- in other words, the capture of communications while they are in flight or being transmitted. iii.When government engages in contemporaneous interceptions protected by Title I, it must obtain an intercept order. b. Lower Protection for Stored Electronic Communications i. Title II of the Wiretap Act sometimes called the stored communications Act governs communications in electronic storage
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2.
3.
1. government need only obtain court order based on probable cause for communications that have been stored for 180 days or less. 2. If communications are stored on a computer in which a person has a reasonable expectation of privacy, the court order must accompany a search warrant. c. Lower Protection for Pen Registers and Trap and Trace Devices i. Title III of the Wiretap act governs pen registers and trap and trace devices 1. trap and trace devices can capture the telephone numbers of incoming calls. 2. Government can obtain registers and trap and trace records with court permission, which must be granted if the government certifies that the information is relevant to an ongoing investigation. 3. The is NO EXCLUSIONARY REMEDY FOR VIOLATION OF THIS PART OF THE WIRETAP ACT d. Wire Tap distinguished from Fourth Amendment i. Lawyer must analyze (1) whether fourth amendment violations occurred; and (2) regardless of the presence or absence of Fourth Amendment Violations, whether the Wire Tap Act was violated. Exceptions to the Wiretap Acts Title I coverage a. Most powerful exception permits the warrantless interception of a communication if one of the parties to that communication has given prior consent to the interception. b. some states have statutes forbidding warrantless interceptions unless all parties consent Requirements for Super Search Warrants a. Jurisdictional (3 requirements) i. Application must be for surveillance concerning a crime for which surveillance is allowed under the statute. i. Wiretap act limits state jurisdiction to Murder, kidknapping, gambling, robbery, bribery, extortion, or dealing in narcotics, or other crimes dangerous to life limb or property for crimes punishable for more than one year. ii. Must be Authorized by a statutorily Designated Official. iii. the Application must be made to a judge of competent jurisdiction b. Documentary Requirementsa. All applications must be made by oath or affirmation; in addition they must be in writing, and state the applicants authority to make such an application. Application must also include a. identity of the investigative or law enforcement officer making the application, and the officer authorizing the application. b. fulle and complete statement of facts and circumstances relied upon by the applicant and his belief that an order should be issued including: a. details as to the particular offense that has been or is about to be committed b. a particular description of the nature and location of the facilities from which or the place where the communcation is to be intercepted. c. A particular description of the type of communications sought to be intercepted d. the identity of the person, if known, committing the offense and whose communications are intercepted; c. a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous (necessity requirement) d. A statement of the period of time for which the interception is to be maintained. e. A full and complete statement of facts concerning all previous applications
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4. C. 1.
f. where the application is for the extension of an order. c. Executorial Requirements a. Conducted only by the agency authorized by the order to intercept the communications. b. must be done in a way to minimize the interception of communications not otherwise subject to interception under this chapter c. Upon attainment of the authorized objective, or expiration of the order, surveillance must cease, and the recordings turned over to the issuing judge. Remedies for Title I Violations a. Suppression of evidence obtained in violation of Title I. The USA PATRIOT ACT a. Endorses Sneak and Peak warrants Provisions Affecting Fourth Amendment Searches a. Under Patriot Act, Temporarily stored wire communications that enjoyed Title I protection, not get Title II protection b. Warrants or orders for stored communications are effective nationwide, and not just in the jurisdiction in which they were issued. c. In ISPs, government is allowed more information such as electronic aliases, times and duration of online sessions, credit card and bank accounts with which the ISP was Paid. d. Patriot Acts add the internet equivalent of pen registers and trap and trace devices. (email addressing data and routing information). e. Under the Patriot ACT, court with jurisdiction over the investigation can issue nation wide orders authorizing the release of pen registers and trap and trace internet equivalents. f. Intelligence officials can now share broadly information they gather under FISA
D. Foreign Intelligence Surveillance Act (FISA) - Patriot Acts grants considerably more leeway when it is investigating the activities of foreign powers than when it is engaging in traditional domestic criminal law enforcement. - enable government to engage in some information gathering without judicial authorization. E. F. 1. Technology- Assisted Physical Surveillance Other Special Statutory Powers Mail Surveillance a. 4th Amendment protects contents of 1st class mail sent through USPS. b. Information written on the outside of packages however is not protected. i. however, postal service prohibits this type of envelope surveillance without an authorized mail cover. 1. A Mail cover may be issued upon written request of a law enforcement agent specifying reasonable grounds to demonstrate that the mail cover is necessary to obtain information regarding the commission of attempted commission of a crime. Material Witness Warrant MATERIAL WITNESS WARRANT TEST: Judicial officer must be satisfied that probable cause exists to believe: 1. that testimony of the witness is material and 2. that it may become impractical to secure his presence by subpoena or other court process.
2.
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G.
Extended Detention of Persons in the War on Terrorism
Chapter 7: SEARCHES AND SEIZURES: The Exclusionary Rule I. Exclusionary Rule Balancing Mapp v. Ohio - Holding: Evidence Seized in violation of a persons fourth Amendment rights cannot be used against that person in a criminal trial. Exclusionary Rule applies not only to illegally obtained evidence itself, but also to other material derived from that evidence-- in other words, to the fruit of the poisonous tree. - Exclusionary Rule Extended to the 5th and 6th Amendments as well. Checklist 9: Does the Exclusionary Rule Require Suppression? Did police violate a constitutional right? a. If yes, as a result, did they discover evidence that is offered in a criminal case, but not to impeach a testifying defendant? b. If yes, is the evidence the direct product of the constitutional violation or is it the fruit of a poisonous tree. 2. If the evidence is fruit of the poisonous tree, can the prosecution establish by a preponderance: a. That the evidence would have been discovered inevitably if the violation had not occurred? OR b. That the evidence was discovered from an independent source? OR c. That the taint of the constitutional violation was so attenuated when the evidence was discovered that suppression would not further the purpose of the exclusionary rule? i. Was the causal connection between the constitutional violation so remote that the costs of exclusion are not worth its benefits? OR ii. Will the specific interests protected by the particular constitutional guarantee violated (generally meaning the particular doctrinal rule crafted) be too little served to justify the costs of exclusion to the truth finding process? 3. Regardless of whether the evidence is the direct product of the constitutional violation or a fruit of the poisonous tree, did the police act in objective good faith reliance on a facially valid warrant? 4. Will suppression of the evidence adequately redress the governments violation? a. if not, why not? b. If not, what alternatives to the exclusionary rule and/or suppression of the evidence may be available as a remedy? 1. II. Limitations on Excluding Fruits of the Poisonous Tree The Supreme Court has limited the Exclusionary Rule in Two Ways Narrowed the Reach of the Fruit of the Poisonous Tree Doctrine - Inevitable Discovery- Independent Source- Attenuation of the TaintThe Court has created several broad exceptions to the exclusionary rule itself - The Good Faith Exception- The Criminal Case Exception- The Impeachment ExceptionEvery State accepts the Main Exclusionary Rule, Not every State Accepts the Exceptions to the Exclusionary Rule.
1.
2.
A. Inevitable Discovery - the evidence would have been found without reference to police misconduct. - but for the constitutional violation, it would have been discovered anyway.
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Nix v. William - RULE: Trial in a state court allowed evidence pertaining to the discovery and condition of the Victims body on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place. - Constitutional Right at Issue is the 6th Amendment right to an Attorney - police questioned the suspect in the car when he did not have an attorney present. The suspect said where the body could be found, and police paused the search on prospect of the suspect disclosing the location of the body. However, had the suspect not disclosed the bodys location, the prosecution offered evidence that the body would have been recovered any way because of the method and area of the search. - Independent Source Argument- allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. B. Independent Source- Where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, facts z can be said to be admissible because derived from an independent source Segura v. United States - Federal agents entered the apartment and remained there until a search warrant was obtained. - The search warrant itself was valid and untainted by the unlawful entry, that is, no information discovered from the unlawful search was used in obtaining the warrant. Murray v. United States - Drug trafficking in warehouse, when automobiles of murray and another were driven out of the warehouse, police were able to see illegal activities going on inside. Police were able to obtain warrants using only the witness testimony, and evidence of drugs found in murrays car. - Evidence would be admissible so long as the products of the illegal search were not used to obtain the warrant. Attenuation Of The Taint LaFave and Israel Criteria (1) Where the chain between the challenged evidence and the primary illegality is long or the linkage can be shown only by sophisticated argument, exclusion would seem inappropriate. because police could not have forseen that such evidence would be excluded by their actions therefore, threat of exclusion could not operate as a deterrent in that situation. (2) Same may be said where evidence is used for some relatively insignificant or highly unusual purpose. (3) Since the purpose for the exclusionary rule is to deter undesirable police conduct, where that conduct is particularly offensive, the deterrence ought to be greater and, therefore, the scope of exclusion broader. Brown v. Illinois - Justice Blackmun: a piece of evidence that can be linked causally to the constitutional violation nevertheless may be admissible it that causal link is so attenuated that the deterrent purpose of the exclusionary rule would not be served by suppressing the evidence. - considerations above. 1. 2. 3. Relevant Factors in Attenuation Analysis the temporal proximity of the arrest and the confession the presence of the intervening circumstances, and the purpose and flagrancy of the official misconduct C.
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Kaupp v. Texas - police brought 19 yr old half brother of 14 yr old missing girl in for questioning. - officers went to Kaupps house and were admitted by kaupps father at 3am on a january morning. - officers woke him by shining the light in his face and said we need to talk. kaupp said okay and went with them. - led him to the police car still in boxers and a t-shirt with no shoes. - they stopped at the place where the body was found for about 1 min, then went to the police station, placed kaupp in the interview room, removed his handcuffs, and mirandized him. - confession statements were allowed under the attenuation of the taint. - Miranda warnings alone and per se cannot always break the the causal connection between the illegality and the confession. - Consent searches frequently raise attenuation issues. TWO DISTINCT ATTENUATION DOCTRINES - Cost- Benefit Approach- Harm- Specific Approach- ex. If police use excessive force to stop a fleeing criminal, should his later confession be suppressed as a result of that? this approach says no. III. A. 1. 2. 3. Exceptions to the Exclusionary Rule THE GOOD FAITH EXCEPTION Checklist 10: Does the Good Faith Exception Apply? Did the police rely on an Invalid Warrant to conduct a Search or Seizure? If Yes, Can the prosecution establish that there was no culpability on the part of the individual officers involved -- i.e. that they did not know that the warrant was invalid and were not aware of facts that would have made them reckless or negligent with respect to the warrants invalidity? If yes, can the prosecution establish that a reasonably well trained officer would have believed the warrant to be valid? a. was the warrant not based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. b. was the warrant not so facially deficient that a reasonable officer would recognize its invalidity? If yes, can the defendant establish that the warrant was issued on the basis of an affidavit containing false statements, or statements made in reckless disregard for the truth, or that the warrant was issued by a magistrate who was not neutral and detached If yes, was either systemic negligence involved or if not, did individual officers act deliberately, recklessly or with gross negligence in violating the constitution? (this last question arises when the officer believes that a current warrant exists when it does not, and has the potential to extend to searches where police know that they proceed without a warrant, though the court has never so held. ________ GOOD FAITH EXCEPTION Analysis of Deterrent effects - in complete good faith, there is nothing to deter because they already were exercising an appropriate degree of care. Definition of Good Faitha. United States v. Leon i. Considering all the fact of the case ii. asking whether a reasonable officer who possesses these facts and reasonable knowledge of what the law provides, would have relied on the warrant
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4. 5.
1. 2.
3.
situations where Objective Reasonableness should not be used - 1. where judge or magistrate wholly abandons his or her role as a neutral or detached magistrate - 2. where the warrant is completely lacking any indicia of probable cause - 3. where warrant is facially deficient in failing to particularize the place to be searched or things seized.
Herring v. United States - Held: Exclusionary rule inapplicable in a situation in which police had not acted culpably despite the fact that they had arrested Herring on the basis of a law enforcement error. - something more than simple negligence is needed. - 1. Police must act with at least gross negligence, OR - 2. as a result of systemic negligence. B. CRIMINAL CASE EXCEPTION - Exclusionary Rule applies only to Criminal Cases Basis for deciding whether deterrence would be served by application of the exclusionary rule in a particular proceeding Nature of the proceeding. Whether the search and the proceeding were initiated by the same agency, or the same sovereign. An indication of an explicit understanding between two law enforcement bodies- the one that conducted the search and the one that initiated the proceeding. A statutory regime in which both the searching agency and the prosecuting agency share resources- particularly resources derived from one of the proceedings A strong relationship between the law enforcement interest and the searching agency and the type of proceeding at which the seized material is being offered.
Zone of Primary Interest- 607 - Where the relationship between the objectives of the law enforcement agency to which the officer belongs, and the secondary meeting is close, an inference may be drawn that officers had the use of the evidence in subsequent proceeding in mind when they made the seizure. The zone of primary interest of an IRS agent, for example has been held to encompass both criminal and civil tax enforcement proceedings. Hence, the exclusionary rule has been applied to bar the use of illegally seized evidence in civil proceedings where that evidence was seized by the IRS agents. - Also, exclusionary rule only excludes evidence from the trial itself, outside of the trial, all parties can view the evidence. C. THE IMPEACHMENT EXCEPTION - Two Important Limitations - 1. the impeachment must relate either to the defendants testimony on direct examination OR - 2. to questions asked by the prosecutor on cross examination that are Reasonably Suggested by the defendants testimony. D. HABEUS REVIEW OF VIOLATIONS OF THE FOURTH AMENDMENT EXCLUSIONARY RULE
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IV.
Does the Exclusionary Rule Work (Skim) A. The Exclusionary Rule is Constitutionally Required - Map v. Ohio B. The Exclusionary Rule Preserves Judicial Integrity - Use of the rule allows the courts to avoid taint of partnership in official lawlessness. C. The Exclusionary Rule Deters Police Misconduct - give criminals an oversight role in the system of justice D. Separation of Powers
V. A. 1. 2. 3. B.
Alternatives to the Exclusionary Rule Fourth Amendment Violations Tort Remedies Injunctive Relief Criminal Remedies Fifth and Sixth Amendment Violations Confessions, Lineups, Assistance of Council
CHAPTER 8: Confession and Self Incrimination I. Due Process and Voluntariness Compulsive = Miranda Situation Coerced and Involuntary = Same Brown v. Mississippi - RULE: where a defendants statement is obtained by the police through means of coercion that renders it involuntary, the due process clause of the fifth amendment requires the trial court to exclude the statement from the defendants criminal trial. - Excluding coerced confessions deters police misconduct, satisfying the deep rooted feeling that the police must obey the law while enforcing the law. Checklist 11: Due process Voluntariness 1. was the statement the product of coercive government activity, such as force or threat of injury, psychological pressures, police deception, or promises of leniency 2. If yes, does the totality of the circumstances indicate that the coercive activity overcame the will of the person making the statement. The totality of the Circumstances Test and Its Multiple Goals TEST: where the defense disputes the voluntariness of a statement, it will put in issue two facts: (1) whether the police subjected the defendant to coercion; and (2) whether the coercion was sufficient to overcome the will of the accused, considering his particular vulnerabilities and the conditions of the interrogation, and regardless of whether he was guilty or innocent. - In engaging in this Two Pronged inquiry, courts must examine the Totality of the Circumstances 1. Reducing the Risk of Unreliable Confessions - Even if police follow the law, gang members still take the fall for their friends crimes if they already have to serve time for their own.
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B.
- even if a confession is product of coercive interrogation, even if it is supported by no other evidence, and even if it is ultimately proven false beyond any reasonable doubt, the confession will most likely cause a jury to convict. - a false confessor who chooses to take the case to trial stands more than an 80% chance of conviction despite the fact that he is officially presumed innocent. 2. Fairness not just rely on confessions.
- Fox-Hunters argument- requires the government to conduct a thorough investigation of the facts, and - Equality Argument- prevents the government from using its vastly greater resources to overwhelm the
defendant. - Human Dignity- argument demands that the government avoid undue pressure and cruelty. 3. DIGNITY AND DECENCY An Admissible Confession must be: the product of an essentially free and unconstrained choice by its maker.
4. INDIVIDUAL TRUST OF GOVERNMENT - Final reason for voluntariness doctrine. If police are permitted to interrogate suspects in a cruel fashion, important bonds of trust between government and individuals would be changed. D. The Totality Test in Practice - Confession reliability dependent on previous exposure of details by police in interrogation. 1. USE OF FORCE AND FEAR OF PHYSICAL INJURY Arizona v. Fulminante - defendant was approach while in prison by an undercover informant who presented himself as an organized crime figure. Informant offered to protect defendant from some rough treatment if defendant told the truth about the rumor that he had killed his 11 year old step daughter. defendant then confessed in considerable detail. - Court held that the confession was involuntary because there was a credible threat of physical violence. 2. LENGTHY INTERROGATIONS AND DEPRAVATION OF BODILY NEEDS - lengthy interrogations that break down the suspect even without physical force. in these situations, the suspects become sleep deprived and may also be denied adequate food, water, and rest breaks. - Prolonged lack of sleep during interrogations were underscored during the korean war. It was just one device used to confuse, bewilder, and torment our men until they were ready to confess to anything. - A respected textbook on law enforcement interrogations warns against an unduly long continuous interrogation that might be apt to make an innocent person confess. - competent interrogators should be able to obtain a confession within about 4 hours. 3. a. USE OF OTHER PSYCHOLOGICAL TECHNIQUES Pressure Tactics Spano v. New York - suspect interrogated for several hours by several police officers despite his request for a lawyer several times and his manifest desire to remain silent. - he was then questioned by a friend who he had contacted earlier for help and who was directed by police to play on spanos sympathies
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- Police instructed the friend to falsely state that spanos telephone call to him had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and unborn child. - court determined that given the circumstances, spanos confession was not voluntarily given. b. Deception - courts pay considerable attention to deceptive police tactics when determining whether a confession is voluntary. - The Court invalidated a confession given after a suspect was subtly questioned by a state-employed doctor who purported to be present in order to give the suspect medical relief but who was really a psychiatrist with considerable knowledge of hypnosis. Promises of Leniency Lynumn v. Illinois - defendant underwent police interrogation during which she denied and then admitted to having sold marijuana. she later testified that after her initial denial, police warned her that if she did not cooperate she could get ten years in prison, suffer a termination of financial aid to her children, and have her children taken away from her. according to the defendant, she believed that if she answered the questions the way the police wanted her to, she would not be prosecuted. - Officers general statements that he will help all he can will not render defendants subsequent confession involuntary. - Still, other courts refuse to omit confessions unless they were induced by promises of the character likely to influence the defendant to speak untruthfully. E. PROVING VOLUNTARINESS - prosecution bears the burden of establishing that a confession was voluntary by a preponderance of the evidence. F. CAUSATION AND GOVERNMENT ACTION - The court has repeatedly required that government action must have induced, brought about, produced, extracted, or obtained the confession. This is suggestive of causation requirement G. DOES TORTURE VIOLATE THE DUE PROCESS CLAUSE? 1. The Question - Does voluntariness doctrine prohibit the use of coercive techniques altogether, or just the introduction at trial of the products of those techniques? - does the violation take place immediately upon the application of the coercion, or does it take place only when the fruits of the coercion are introduced in the courtroom. 2. Substantive Due Process Chavez v. Martinez - police officers violate the fourteenth amendment due process when he obtains a confession by coercive conduct regardless of whether the statements are used at trial. - Fourteenth amendment due process clause has TWO ASPECTS: - 1. it incorporates various provisions of the bill of rights against the states, AND - 2. it provides a few carefully limited substantive rights 3. Fourth Amendment Prohibition Against Unreasonable Searches and Seizures 4. Eighth Amendment ban on Cruel and Unusual Punishments - When state seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the due process clause of the fourteenth amendment. 5. INTERNATIONAL LAW - International Law Prohibits Torture
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c.
I. EXCLUSIONARY RULE AND FRUT OF THE POISONOUS TREE DOCTRINE p.686 - Involuntary Confessions (violate due process) are inadmissible for any purpose, including impeaching a defendant on the witness stand. - If statements are in violation of due process, cannot be used for anything, not even impeachment. BUT - If statements are only in violation of miranda, statements may be used to impeach. - Once a court determines that a confession is inadmissible, the focus of the exclusion question shifts to evidence that police uncovered as a result of that confession. - What about the IMPEACHMENT EXCEPTION to the EXCLUSIONARY RULE?
II.
1. 2. 3. 4. 5.
6. 7.
8.
9.
Custodial Interrogations and the Miranda Doctrine Checklist 12: The Miranda Rule Was the Suspect in custody- Deprived of freedom of action in any significant way, that is, held incommunicado in a police-dominated atmosphere? If yes, was he subject to interrogation, or did he instead spontaneously blurt out a statement? If he was subject to interrogation, was the interrogation by a government actor? If yes, is there a applicable exception to the Miranda Rule? -- Such as public safety or routine booking? If no, was the suspect read the following rights? a. you have the right to remain silent b. Anything you say can and will be used against you in a court of law c. you have the right to a lawyer and to have the lawyer present with you during the interrogation. d. If you cannot afford a lawyer, one will be appointed to represent you prior to any questioning If yes, did the suspect voluntarily, knowingly, and intelligently waive both his right to silence and his right to counsel? If the suspect refused to waive his right to silence, did any subsequent questioning resume only after scrupulously honoring the suspects right to silence, as determined by consideration of at least the following factors a. whether he was immediately left alone when he invoked his right to remain silent. b. Whether he was questioned by a different detective only after having been reminded of his right to remain silent and having been given an opportunity to exercise that right. c. Whether he was asked only about an unrelated crime. If the suspect refused to waive his right to counsel, did all interrogation efforts fully cease, resuming only if and when the suspect himself initiated further communication, exchanges, or conversations with the police, without his change of mind having been prompted by police action or if prompted by police action, only after more than two weeks passage of time? If there was a Miranda Violation, has the suspect taken the stand at trial and testified inconsistently with his statement, thus subjecting the suspect to impeachment by the statement.? A. History 5th Amendment Privilege Against Self Incrimination
B.
The Miranda Decision and Interpretive Controversy 1. The Opinion Miranda v. Arizona
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- Custody + Interrogation = Miranda Rights 1. Applies only if in custody, that is, if freedom of movement is restricted in some significant way. 2. These terms must be given a meaning that reflects concern with incommunicado interrogation in a police dominated atmosphere. Therefore: general, on-the-scene questioning is usually not custody. Miranda- Custody Specific 2. a. CRITICIZING AND QUESTIONING MIRANDA The Role of the Text The Fifth Amendment Guarantees that No person shall be compelled in any criminal case to be a witness against himself. D. MIRANDA THRESHOLDS: CUSTODY & INTERROGATION 1. DEFINITION OF CUSTODY - A Person is in custody when formally arrested. If there has been no formal arrest, an objective test is used in determining whether a person has been taken into custody or significantly deprived of freedom. - A person is not considered to be in custody unless freedom of movement is restrained is some significant way. - Two factors of an ordinary Traffic Stop mitigate the danger that a person questioned will be induced to speak where he would otherwise not do so freely. - 1. detention of motorist pursuant to a traffic stop is presumptively temporary an brief. - 2. Circumstances associated with typical traffic stop are not such that a motorist feels completely at the mercy of the police. - Typical stop is in public - Jailed- Jailed suspect is generally considered to be in custody. - If there is further restriction of freedom beyond his current jailed status, requires miranda warnings. - Probation- 5th and 4th amendments do not prohibit the introduction of the probationers statements. 2. THE DEFINITION OF INTERROGATION Rhode Island v. Innis - words or actions may constitute a functional equivalent to interrogation. - Objective Test - words or actions constitute the functional equivalent if police should know those words or actions are likely to elicit an incriminating response. - To Be testimonial, an accuseds communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. E. ADEQUACY OF WARNINGS - Must Clearly convey a. You have the right to remain silent AND b. Anything you say can and will be used against you in a court of law AND c. you have the right to a lawyer and to have the lawyer present with you during the interrogation. (present during questioning) AND d. If you cannot afford a lawyer, one will be appointed to represent you prior to any questioning. - Particular confusion if officers suggest that counsel will be appointed at some point in the future.
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- Duckworth v. Eagan- we have no way of giving you a lawyer, but one will be appointed was OK. - Miranda requires that the police not question a suspect unless he waives his right to counsel. - Words that convey the rights articulated in Miranda are sufficient F. WAIVER OF RIGHTS VERSUS INVOCATION OF RIGHTS 1. COMPONENTS OF A VALID WAIVER - A suspects statement, made during custodial interrogation, cannot be admitted without a showing - (a) that s/he was given miranda warnings; - (b) that s/he WAIVED Miranda rights IN FACT - (c) the waiver was effective - A Heavy burden rests on the government that the suspect knowingly and intelligently waived his privilege against self incrimination. - valid waiver not presumed from silence - Record must show the accused was offered counsel but intelligently and understandingly rejected the offer. a. WAIVER IN FACT - Expressed in words - Implied by conduct b. & c. VOLUNTARY/ Knowingly and Intelligently - The substance of the waiver analysis has two parts: - 1. the waiver must have been voluntary, and - Totality of the Circumstances - 2. c. must have been knowingly and intelligently made. - analysis focuses on the suspects ability to understand the warnings and the consequences of speaking, although the supreme court has indicated that this analysis is not to be made too stringently. - Connecticut v. Barrett- illogical nature of his decision is unimportant to the analysis. just because one says he understands then refuses to sign any document without an attorney does not mean that he doesnt understand his rights. 2. INVOCATION AND ITS CONSEQUENCES a. INVOCATION IN FACT - The invocation of these rights has consequences to further questioning by police. - Suspect who says nothing has not invoked Miranda rights Davis v. United States - burden of clarity in invocation is on the suspects - maybe i should talk to a lawyer when police tried to clarify whether suspect wanted to talk with a lawyer, suspect said that he did not, and subsequently made incriminating statements. the statements were allowed in trial. b. RESUMPTION OF QUESTIONING AFTER INVOCATION OF RIGHTS (I) THE RIGHT TO REMAIN SILENT - Even after a defendant invokes the right to remain silent, police may question him in regards to another offense, provided that they Scrupulously honor his original decision to remain silent.
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(II)
RIGHT TO COUNSEL Michigan v. Mosley - established a rule permitting further interrogation in some circumstances following a suspects assertion of a right to remain silent, little such flexibility exists after the suspect invokes the right to an attorney. Edwards v. Arizona - police gave miranda rights and left him alone after he stated that he wanted to speak to a lawyer. next morning, officers re-approached him and mirandized him and he made incriminating statements. When an accused has invoked the right to have an attorney present during custodial interrogation, a valid waiver cannot be established only by showing that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. - An accused, having expressed desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
(III) RESUMPTION OF QUESTIONING - If the suspect Initiates a conversation, this can open the door to further police questioning. - not all statements can be seen as initiation of further discussion, such as, request for food, water, bathroom. - Defendants initiation of a conversation after first invoking his rights, does not constitute a waiver per se, although is is an important factor. - statements made after A break in Miranda Custody lasting more than two weeks between the first and second attempts at interrogation. will be admitted. - Prisoners- compulsion is likely when a suspects captors appear to control his fate. - however if a guard tells a prison that he is to go an talk to police, this appearance is no longer present. 1. G. SCOPE OF THE MIRANDA EXCLUSIONARY RULE FRUIT OF THE POISONOUS TREE Oregon v. Elstad - limited the rule to the exact statements or evidence obtained as a direct result of a Miranda Violation. - The indirect fruit is not automatically excluded. - In this case, police interrogated a suspect without giving him his miranda rights, and incriminating statements were made. later, police mirandized the suspect, and asked him more questions. under the ruling, the second set of statements were admissible. - although in a similar case- a police policy of questioning first, then mirandizing, and covering the same ground for the purposes of undermining the miranda rule will not be allowed. - since Miranda Warnings are not actual Constitutional Rights, and are only meant to protect constitutional rights, the warnings themselves do not deserve the same protections as constitutional rights. - Physical evidence obtained from an unwarned confession need not be excluded.
2. IMPEACHMENT - Statements made in violation of miranda may be used for the purpose of impeaching the defendants trial testimony, provided that those meet usual trustworthiness standard. - If Miranda warning are given, it is not proper for a prosecutor to comment on a suspects post-arrest silence. - If Miranda Warnings are not given, The prosecutor may comment on Post-Arrest Silence. H. MIRANDA EXCEPTIONS
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Public Safety- Miranda Warnings not necessary/ police must ask questions in order to prevent immediate danger to public safety New york v. Quarles . 2. Routine booking Practices- general biographical questions, generally unassociated with the crime suspect is being held for. a. this means that slurred responses can be used against a defendant in the case of a DUI. - Possible exception for Misdemeanor Roadside Stop-
1.
I.
UNDERCOVER ACTIVITIES Illinois v. Perkins - no Miranda violation where an undercover agent is placed in a cell block with a suspect, and the agent asked the suspect if he had ever done anybody. the suspect then admitted to committing certain crimes. - Miranda Violation where prisoner Informant physically compels testimony out of suspect to help the police and reduce his sentence. EDWARDS BAR- comes into effect once the right to counsel is invoked.
Impeachment Exception Miranda Barred statements can be used for impeachment (as can massiah barred statements). No impeachment or comment on invoking Miranda right to silence (5th Amend.) If no interrogation and no Miranda warnings, then prosecutor may comment on silence Can on be impeached by pre-arrest silence? 763.
Traffic Stops: - No need for miranda warnings. 765 Public Safety: - See Quarels: present and immediate danger to public as in Quarels. - Finch: hostages taken including estranged wife. No need for warnings and statement of finch is admissible. Section III: The Sixth Amendment Right to Counsel Checklist 13: The Right to Counsel After Initiation of formal Charges 1. Was the statement made by a person after adversarial proceedings had begun? 2. If yes, Did a Government Actor deliberately elicit the statement in the absence of defense counsel or a valid waiver of counsel? 3. If yes, did the statement concern the charged offense?
A. THE MASSIAH DOCTRINES HISTORICAL BACKGROUND - Massiah Doctrine appears to have grown out of the courts increasing awareness that depravation of legal advice is a significant factor in the voluntariness inquiry. - defendants who confessed generally had been denied access to counsel. - Any person hailed into court. . . cannot be assured a fair trial unless counsel is provided for him.
B.
THE DECISION IN MASSIAH AND INTERPRETIVE ISSUES Massiah- Federal Grand Jury had indicted Massiah and his friend for narcotics. Massiah had hired a lawyer, and pleaded not guilty, and released on bail. Without Massiah, or his lawyers knowledge, The friend had agreed to cooperate with police.
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- Friend allowed police to instal radio transmitter in friends car, friend then engaged massiah in conversation regarding the drug charges. damaging statements were made. - Court said that the right to counsel cloaked him with protection from the time of indictment through trial and was violated when government obtained statements through trickery and in the absence of massiahs lawyer. Right to assistance of counsel begins when the Defense begins-- the point of time, according to that court, when the defendant is put in jeopardy on his trial. C. 1. THRESHOLDS: FORMAL CHARGE AND DELIBERATE ELICITATION THE REQUIREMENT OF A FORMAL CHARGE
Automatic Formula: - Any uncounseled statement deliberately elicited after indictment must be excluded from trial. Right to counsel is triggered by the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. - Trial Like confrontation where counsel is needed for advice. 2. DELIBERATE ELICITATION - Massiah Doctrine comes into play only where law enforcement personnel have deliberately Elicited incriminating statements. - officer may be found to have deliberately elicited by engaging the suspect in conversation about the charged conduct, or indirectly, by knowingly exploiting and opportunity to confront an accused without an attorney present. - where planted cellmates engage defendant in conversation, there is Deliberate Elicitation. - However, where planted cellmate is instructed only to listen, and does not engage in conversation, this is not a deliberate elicitation. - Knowingly Exploiting an Opportunity: is present where police wire a knowing participant in a conversation between two co-defendants in order to hear incriminating statements made without the assistance of counsel.
D. INVOKING AND WAIVING SIXTH AMENDMENT RIGHTS - Once a defendant has been formally charged, his sixth amendment right to counsel attaches. Nevertheless, it must also be invoked before it is fully effective. Montejo v. Louisiana - invocation occurs whenever counsel enters an appearance, though not all courts agree. - After the right attaches, but before it is invoked, the right may be waived. - The government bears the burden of proof of waiver. - An Intentional Relinquishment or Abandonment of a known Right or privilege. - Must prove Voluntary AND - Knowing and Intelligent
- Edwards Rule- Requiring interrogation to stop upon assertion of miranda right to counsel.
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- Minnicks Bar on seeking a waiver of Miranda Rights until Counsel is present, or suspect initiated further conversation. - A Suspects post-indictment invocation of sixth amendment rights does not flatly bar police from trying to get him to change his mind and waive those rights. - However, the change of mind must still be - Knowing, Voluntary, and Intelligent.
E.
MASSIAHS OFFENSE SPECIFIC NATURE
- Massiah right attaches only when a defendant is formally charged with a crime, it is offense specific,
that is it covers only communications about that particular crime. - To invoke the Sixth Amendment interest is, as a matter of Fact, not to invoke the Miranda- Edwards interest. - Sixth Amendment- Right to counsel at trial - Miranda Interest- right to have counsel at interrogation - The SAME for Double Jeopardy purposes is the Standard for Same Crime questioning. An Attorney for the GOVERNMENT may communicate, or cause another to communicate, with a represented person concerning the subject matter of the representation if: (a) The communication: (1) is made in the course of an investigation, whether undercover or overt, of possible criminal activity; AND (2) Occurs prior to the attachment of the sixth amendment right to counsel with respect to charges against the represented person arising out of the criminal activity that is the subject of the investigation; OR (b) the communication is otherwise permitted by law. F. SCOPE OF SIXTH AMENDMENT EXCLUSIONARY RULE
- Fruit of the Poisonous Tree Doctrine- excludes evidence discovered as a result of Sixth Amendment Violations, and the traditional limitations on that doctrine apply: - Inevitable Discovery - Independent Source - Attenuation of the Taint - Good Faith. Fruit of the Poisonous Tree Doctrine and its exceptions are Applicable to the 4th 5th and 6th Amendments. CHAPTER 9: SELF INCRIMINATION OUTSIDE THE INTERROGATION ROOM - Checklist 14: When does the Privilege Apply? 1. Is the privilege asserted by a Natural Person rather than an entity such as a corporation? 2. If Yes, is the privilege asserted on the persons own behalf? 3. If Yes, Is the person compelled--- by Custodial interrogation, court process, or threats of sanctions from a government actor-- to communicate? 4. If Yes, Does the communication involve something testimonial in nature rather than physical acts or characteristics?
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5.
If Yes, is there a substantial and real hazard that the testimonial communication could be used in a criminal prosecution or could lead to other evidence that might so be used? 6. If the person compelled is not a criminal defendent, does that person assert the privilege in response to specific questions? 7. Has the privilege been waived in the same proceeding by other communications on the same or related subject? 8. If the compulsion involves pre-existing documents or items, would the act of producing them be incriminating? a. would the act of producing reveal the existence of the items? b. would the act of production reveal the persons possession of the items? c. would the act of production authenticate the items? A. BALANCING IN THE SELF-INCRIMINATION CONTEXT
- Court often balances the concerns of the Fifth Amendment against the truth seeking functions of the court. B. WHO HAS A PRIVILEGE AGAINST SELF-INCRIMINATION - Only Natural Persons have the right - no corresponding right can be claimed by entities such as corporations or partnerships, no matter how small or large, - however, sole proprietorships may invoke the right since they are unstructured and conduct business as individuals. - JUSTIFICATIONS FOR THIS LIMITATION - 1. Privilege is designed to protect that private enclave where a person may lead a private life. - 2. placing the privilege in the hands of an entity would frustrate government regulation. TEST: for WHETHER BUSINESS IS SMALL ENOUGH - How perpetual is the business - Does it have a constitution, rules, or bylaws? - The more personal the organization, the more likely the privilege will apply. - Standing- Like Requirement - Fisher v. United States - only the individual holding the privilege may assert it, and no one else may claim it on that persons behalf. - however, attorney can withhold document on attorney client privilege.
C. HOW TO INVOKE AND WAIVE THE PRIVILEGE - A DEFENDANT in a CRIMINAL CASE invokes the privilege simply by choosing not to take the stand. - prosecutor cannot call the defendant, or make any reference to his silence. - A defendant that is NOT A CRIMINAL DEFENDANT
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- Civil Lawsuit Parties & Non-Defendants questioned in Criminal Cases- Can refuse to respond
to ALL Questioning, BUT Only in RESPONSE to Specific Questions. - No Magic word Required- must articulate something that can reasonably be interpreted as invoking the privilege - If Challenged- Witness has the burden of establishing that the privilege applies, by demonstrating a substantial and Real threat of criminal liability stemming from the testimony. - not enough for the answers only to cause embarrassment or disgrace. - The fact that the Defendant had an opportunity to assert the privilege, but did not, mean the privilege was waived. - however, having made a statemement in one proceeding does not mean that the defendant has forever waived his privilege. - Waiver does not carry over to the next proceeding, and ends after the instant proceeding. Defendants must: - Assert the privilege on the stand, OR - Refuse to take the Stand at All. D. THRESHOLDS: COMPULSION, INCRIMINATION, TESTIMONY - Privilege Applies ONLY to COMPELLED, INCRIMINATING TESTIMONY. - 3 Thresholds - 1. Compulsion by Government Actor - Typically an after the fact inquiry - Person against whom the crime is or will be charged must aid in the uncovering of the information. a. Questioning in custody and During Court Proceedings - Miranda Rule b. The No-Comment Rule- the prosecutor is not allowed to comment on the invocation of the 5th amendment privilege. - applies only in Criminal Cases - Prosecutor may comment on invocation of the privilege if the comment is in response to the defense counsels assertion that the defendant was not given the opportunity to tell his side of the story. - Judge may instruct a criminal jury not to draw any inferences from the defendants decision not to testify. The instruction is mandatory is the defendant requests it. - Harmless error Rule greatly reduces the number of convictions overturned as a result of impermissible comments. c. The Hobsons Choice: Threat of Sanctions & Procedural Costs - Garrity v. New Jersey - officials conducting an investigation into police corruption asked questions of several police officers. Officers were warned by the investigators that if they did not answer the questions, they would be fired. - Police then answered the questions, and were convicted. - convictions were overturned, because their statements had been compelled by Hobsons Choice. - Ohio Adult Parole Authority v. Woodward - fifth amendment was not violated where it gave an inmate the opportunity to voluntarily participate in an interview with parole authorities. - Defendant who takes the stand in his own defense can not claim the privilege against self incrimination when the prosecution sought to cross examine him. - Actual Prisoners
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- incentive program upheld where admission of responsibility on the basis of evidence showing that such an admission enhances the effectiveness of treatment by treatment program for incarcerated sex offenders. 2. INCRIMINATION - privilege can be asserted at any proceeding, civil or criminal, administrative or judicial, investigatory or Adjudicatory. - So long as there is substantial and real hazard that the disclosures sought could be incriminating. - Privilege DOES NOT APPLY where incrimination related EXCLUSIVELY to Prosecution by Foreign State. 3. TESTIMONY - Blood tests, sobriety tests are not testimonial, therefore to not implicate the privilege. - 5th Amendment applies only to testimonial communication. CHAPTER 10: EYEWITNESS IDENTIFICATION Checklist 15: Eyewitness Identification Issues 1. Right to Counsel a. Is an identification procedure, such as a Line-up, show-up, or photo spread involved? b. If yes, is the procedure being held pre-or post-indictment, that is, have formal adversarial proceedings begun? c. If yes, does any subsequent in-court identification have an independent basis from the tainted, uncounseled, out of court identification, based on these factors: i. Prior opportunity to observe the alleged criminal act; ii. the existence of any discrepancy between any pre-trial descriptionand the defendants actual description. iii. any identification prior to the lineup of another person. iv. the identification by picture of the defendant prior to any line-up v. the failure to identify the defendant on prior occasion; and vi.the lapse of time between the alleged act and the line-up identification 2. Unnecessarily Suggestive Identification a. Was there suggestion inherent in the line-up, for example was the D the only person with a beard? b. If there was suggestion, was it Unnecessary Suggestion c. If there was Unnecessary Suggestion, did it create a very substantial likelihood of misidentification, that is did it call the reliability of the line-up into question based upon at least the following factors: i. The opportunity of the witness to view the criminal at the time of the crime ii. the witness degree of attention; iii.the accuracy of his prior description of the criminal; iv. the level of certainty demonstrated at the confrontation v. The time between the crime and the confrontation (weighing against these factors the corrupting effect of the suggestion itself)? d. If there was unnecessary suggestion, did it create a very substantial likelihood of irreparable misidentification, thus calling into question the reliability of the in court identification?
1.
LINE UPS AND SHOW UPS

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- In a LINE-UP, a group of men or women are placed in a line and the victim is asked whether he sees anyone he recognizes. - Members of the line might be asked to speak certain words. - In a SHOW UP, police present a single person to the witness, when is asked whether or not that person is the wrongdoer. - TWO protections at lineups 1. Right to Counsel 2. Right to be Free from Unnecessary Suggestiveness. 2. PHOTOSPREADS - May be done in two different ways - 1. victim is shown a group of six photographs, and asked whether he recognizes anyone. - 2. victim may be asked to look through a mug book and pick out anyone the victim recognizes. C BENEFITS OF COUNSEL - lawyer can make suggestions on how to reduce suggestiveness. - Layer can watch for signals from a police officer. (wink, change of voice) D. CURRENT SCIENCE OF EYEWITNESS IDENTIFICATIONS
- memory is selective, and undergoes change to conform to information later learned, while other information is forgotten. 2. SPECIFIC FINDINGS a. witness factors - Older people perform more poorly than younger people at facial recognition - Cross racial identification difficult, and cannot be trained. b. Perpetrator, Event, and post event factors - only facial distinctiveness is a good accuracy indicator. Whether one has a distinct face. - Things that can change (hair, eyes, glasses) substantially reduce accuracy. Factors about the crime environment - how much time the witness had to view the assailant - presence of a weapon- if present, witnesses focus on it rather than assailant. - cross race recognition
47

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