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CRIMINAL PROCEDURE PROFESSOR FULCHER SPRING 2011

APPLICABLE AMENDMENTS FOR CRIMINAL PROCEDURE (*focus in class) Fourth Amendment To be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Requires a warrant based upon probable cause for a search or arrest Unreasonable searches and seizures Limitations on government actions Reasonable versus probable cause

Fifth Amendment Sets for the right: In federal cases to indictment by a grand jury Against double jeopardy Privilege against self-incrimination* Due process in criminal cases* Six Amendment Guarantees a defendant: The right to a speedy and public jury trial Be given an opportunity to confront witnesses against him and to call his own witnesses The right to assistance of counsel* Eighth Amendment Prohibits cruel and unusual punishment

THEMES IN CONSTITUTIONAL CRIMINAL PROCEDURE 1. Controlling Discretion a. The police make many discretionary decisions including whom to investigate and where to direct their limited resources. b. Prosecutors too have discretion in deciding whom to charge with what, home much bail to seek, etc. c. Defense counsel have discretion in making certain decisions that may affect the quality of justice

2. Criminal Procedure as Evidence Law a. The remedy for many constitutional violations is exclusion of the evidence at trial. b. In deciding whether the legal requirements for exclusion of evidence have been met, the trial court must often find certain preliminary facts, facts that usually go to the trustworthiness of the evidence, as is true under evidence law. 3. Race and Ethnicity of Suspects 4. Role of the Lawyer
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Downloaded From OutlineDepot.com 5. Social Science and Other Disciplines

SEARCHES AND SEIZURES W HAT IS A SEARCH? Katz v. United States Fourth Amendment Limits the governments ability to invade a persons individual affairs Court said: Privacy is not contemporaneous with property Protects people (not places) Physical penetration is not necessary for a privacy invasion Police must obtain a warrant before search takes place Judge is impartial (balances police motivation) Test: did the Individual have a reasonable expectation of privacy (Katz Test) 1) A person must have exhibited an actual (subjective) expectation of privacy 2) The expectation be one that society is prepared to recognize as reasonable Katz Test Under a 4 amendment a search is any police conduct that intrudes upon a person reasonable expectation of privacy The 4 amendment protect people and not places No physical penetration of the area is necessary for a privacy invasion Probable cause should meet the warrant requirement
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To determine the existence of a search 1. Location the setting in which the government action took place is the most important factor in determining whether the police action constituted a search 2. Assumption of Risk

Location Home Curtilage Open Fields Public

Assumption of the Risk An individual assumed the risk that certain information will not be kept private. Agents and Informants Pen registers and Pagers
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Downloaded From OutlineDepot.com Electronic Tracking Devices Aerial Surveillance Thermal Imaging Devices Container Searches LOCATION OPEN FIELDS V. CURTILAGE Open fields unoccupied and undeveloped open areas, even if enclosed and posted with no trespassing signs. Curtilage an area adjacent to and intimately connected with the home

Oliver v. United States Open Field Doctrine Permits police officers to enter and search a open field without a warrant Court said: Curtilage and home are protected Open fields and public areas are not protected

United States v. Dunn Curtilage isthe area immediately surrounding the home Court said: Consider four factors (determining open field or curtilage) 1. The proximity of the area searched to residence(home) 2. Structures that make this area distinct 3. Use of area any activities associated with the use of private daily lives 4. Attempt of Privacy: The steps taken to protect the area from observation

ASSUMPTION OF RISK

Assumption of risk usually requires a decision to engage in conduct despite conscious awareness of the risks. The Courts notion of assumption of risk must extend beyond actual awareness rather, the doctrine includes as well those risks of which the Court concludes the suspect should have been aware an objective(probably normative) inquiry.

Both objective and subjective tests: o o Subjective test conscious awareness of the risk Objective they should have been aware of the risk - assumed the risk

AGENTS AND INFORMANTS (FALSE FRIENDS) Hoffa v. United States

Downloaded From OutlineDepot.com Hoffa discussed bribing Test Fleet jury members with Partin; Partin reported these conversations to a federal agent; Hoffa was arrested, charged, and convicted for endeavoring to bribe the Test Fleet jurors Court said: The petitioner was not relying on the security of the hotel room, he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing No expectation of privacy Had expectation of privacy, but then assumed the risk by telling informant friend info Lopez v. United States Government agent; wore pocket wire recorder Court said: The government did not use an electronic device to listen in on conversations it could not otherwise have heard. The risk of being overhead by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the condition of human society. It is the kind of risk we necessarily assume whenever we speak. Lewis v. United States Undercover drug purchase in defendants home Court said: Where the home was converted into a commercial center in which outsiders were invited in for business, it had no greater sanctity than a store, garage, or street United States v. White Government wired informant; radio transmitter; government agents listened Court said: One contemplating illegal activities must realize that his companions may be reporting to the police

PEN REGISTERS AND PAGERS Smith v. Maryland o The Court held that police use of a pen register is not a search because individuals using their telephones voluntarily convey numerical information to the telephone company and thus assume the risk that the company will reveal that information to the police. o
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A pen register records the numbers dialed from a telephone.

The numbers dialed are not protect BUT the content of the conversations would constitute violation of the 4 amendment.

ELECTRONIC TRACKING DEVICES United States v. Knotts Electronic Tracking Devices

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Downloaded From OutlineDepot.com Beeper inside five gallon container; followed car with container; visual surveillance and signal monitor Court said: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another No search - No expectation of privacy In public - everyone can observe you United States v. Karo Beeper in container; followed signal to storage facilities; observed using closed-circuit video cameras Court said: the governments use of a beeper as intruding too far into privacy interest. The beeper had been used to reveal activities inside a private residence, a location not open for visual surveillance. That use invaded reasonable expectations of privacy. He monitoring constituted a search However, the Court found no violation of 4 amendment rights in the installation of the beeper because the defendants had no reasonable expectation of privacy in the can while it belong to the DEA. Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances Search Expectation of privacy Monitoring inside private place - learning details about inside that otherwise is unknown Smith v. Maryland Woman robbed; received obscene phone calls; installed pen register; identified robber as obscene caller Court said: A person has no expectation of privacy in information he voluntarily turns over to third parties No search No expectation of privacy Exposed to public (i.e. bank record, numbers dialed, web address, etc.) AERIAL SEARCHES California v. Ciraolo Backyard (ten foot fence); curtilage; private plane; 1000 feet; public navigable airspace; identified marijuana Not a search Whether a person has a constitutionally protected reasonable expectation of privacy (Katz 2 part reasonable expectation of privacy test) Subjective - Ten-foot fence was placed to conceal the marijuana crop from at least street-level views
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Downloaded From OutlineDepot.com Expectation = YES, precautions Objective - Any member of the public flying in this airspace who glanced down could have seen everything Society reasonably recognizes expectation = NO The court argued that respondents expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor. No expectation of privacy against airborne observations in public navigable airspace. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.

Dow Chemical Company v. US o o o o o o EPA used a sophisticated aerial mapping camera to take photographs of the facilities from altitudes within the lawful navigable airspace. The Court found no invasion of industrial curtiligage. Dow had a reasonable expectation of privacy in the interior of the covered buildings of the facility. The expectations of privacy are reduced when the property is commercial rather than residential. Those expectations do not include the expectation of freedom from regulatory inspections. There was no such protection from lawful surveys from the air that did not reveal intimate domestic affairs.

Florida v. Riley Greenhouse (some roofing and siding); curtilage; helicopter; 400 feet; navigable airspace; identified marijuana Not a search Whether a person has a constitutionally protected reasonable expectation or privacy Subjective - Two sides of the greenhouse were enclosed; trees and shrubs; corrugated roofing (missing two panels); fence and sign Expectation = YES, precautions Objective - private and commercial flight is routine; helicopters not bound by restrictions Society reasonably recognizes expectation = NO

THERMAL IMAGING OF HOMES Kyllo v. United States Home; thermal imager; marijuana a search and a violation of the 4 amendment no general public use Court said that a 4 Amendment search takes place when government agents employ a device that is not in general public use in order to explore details of a home that would previously have been unknowable without physical intrusion. General Public Use Test If technology is in general public use, then no search
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Downloaded From OutlineDepot.com e.g. Flashlight, binoculars If technology is not in general public use, then search Dissent said: All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of the petitioners home . And no details regarding the interior of petitioners home were revealed. Difference in Through the wall and Off the wall Difference between information coming out of the home (no reasonable expectation of privacy) and information in the home. No expectation of privacy in heat existing house

SEARCHES OF TRASH California v. Greenwood Regular trash collector; provided police garbage; items indicative of narcotics use Court said: If garbage is exposed to public, then no search (regardless of what the container) People assume the risk Some states like CA and NJ protect unwarranted searches of garbage especially when reasonable care is taken to protect the privacy of its contains, such using opaque garbage bags and securing the garbage from dogs, etc.

CONTAINER SEARCHES: Bond v. US A border patrol agent did violate reasonable expectations of privacy when he squeezed soft luggage that passengers had placed in the overhead storage space of a bus. Under the 2 part 4 amendment analysis (Katz test?). 1) The passenger has exhibited an actual expectation of privacy by using an opaque bag and placing that bag directly above his seat. 2) The passengers expectation of privacy is one that society is prepared to recognize as reasonable as one does not expect that other passengers or bus employees will as a matter of course feel the bag in an exploratory manner.
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OTHER FACTORS IN THE SEARCH ANALYSIS Property Interest Courts have decided that one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Property concepts mattered in determining whether the defendants expectation of privacy was reasonable but that those concepts did not control the issue.
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Downloaded From OutlineDepot.com Many courts hold that where items are abandoned voluntarily during a chase, they no longer belong to the individual and can be examined by police without any constitutional violation.

Social Custom Minnesota v. Olson overnight guest have reasonable expectation of privacy The court held that Olson had a privacy interest in the premises because of his status as an overnight guest. The Court reasoned that we seek temporary shelter when were in between jobs or homes, or when we house-sit for a friend, as well as when we travel to a strange city to visit relatives out-of-townbecause temporary guests are especially vulnerable to the loss of privacy, host customarily defer carefully to their privacy needs. Minnesota v. Carter 2hours guest, no reasonable expectation of privacy Social custom suggests that a more temporary visitor is not given privacy protection by his host. The court held that a cocaine dealer who spent approximately two hours in the apartment of an acquaintance did not have a reasonable expectation of privacy there In some circumstances a person may have a legitimate expectation of privacy in the house of someone else but the court clarified that a very temporary visitor may not have such an expectation.

Past Practices and Expectations OConnor v. Ortega The court found that a state hospital administrator had a reasonable expectation of privacy in his office even though in government offices many others-fellow employees, supervisors, consensual visitors, and the general public- have access to the office. The Court pays attention to past practices and expectations in determining expectations of privacy. The court reasoned that the expectation of privacy in ones place of work has deep roots in the history of the 4 amendment.
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Legality and Intimacy of Activities The court has suggested that individuals enjoy little or no privacy interest when they engage in purely illegal activities United States v. Place The court held that a canine sniff of luggage did not constitute a search. The canine sniff does not require opening the luggage. It does not expose no contraband items that otherwise would remain hidden from public view .

US v. Jacobsen A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. IL v. Caballes see below
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Downloaded From OutlineDepot.com Muehler v. Mena The Court held that when the police executing a search warrant questioned a resident about her immigration status, they did not expand the scope of the search. The questioning did not extend the duration of the search Mere police questioning does not constitute a seizure.

Vantage Point The Court has refused to recognize privacy in areas open to public observation. However, where the enhancement device reveals what would otherwise not be exposed to public view, a reasonable privacy expectation exists. A reasonable expectation of privacy protects physical characteristics not ordinarily observable by the public, such as the content of blood, breath tests for alcohol, urinalysis, the scraping of fingernails, forged surgical procedures, and other intrusive scientific procedures invade reasonable privacy expectations. Subpoenas A subpoena (a court order to produce a person, document, or object) is generally considered neither a search nor a seizure. Reduced Expectations of Privacy The Court has found privacy expectation to be reduced in: Vehicles-when parked in public areas. School settings: In Prison Cell

USE OF DOGS TO SNIFF FOR CONTRABAND Illinois v. Caballes Traffic stop; second trooper entered with narcotics-detection dog; dog alerted at trunk; found marijuana Court said: The use of a well-trained narcotics-detection dog - one that does not expose noncontraband items that otherwise would remain hidden from public view - during a lawful, traffic stop, generally does not implicate legitimate privacy concerns No reasonable expectation of privacy in illegal contraband Dog could only detect illegal contraband - this distinguishes it from other cases where dogs detect generally hidden substances The court also reasoned that the drug sniff did not prolong the length of the lawful stop beyond what was justified by the traffic offense and the use of the dog therefore did not unconstitutionally expanded the scope of the stop.

STANDING AND GOVERNMENT ACTION

Downloaded From OutlineDepot.com FOR 4 AMENDMENT, DO ANALYSIS FOR BOTH A SEARCH AND A SEIZURE BECAUSE IF BOTH SEPARATE ANALYSIS IS
REQUIRED.
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The Fourth Amendment protects against more than just unreasonable searches, it also prohibits unreasonable seizures SEARCH.search is any police conduct that intrudes upon a person reasonable expectation of privacy SEIZURE OF A THING. Occurs then the government works some meaningful interference with an individuals possessory interest in that property SEIZURE OF A PERSON. Occurs when a government actor significantly interferes with a persons freedom of movement. The seizure of a person sometimes, but not always, amounts to an arrest.

Note: Some interference with possessory interest might be so insignificant as to be meaningless in Forth Amendment terms. For example, if a police were to pick up a book, leaf through its pages, and set it down again, the possessory interest would have been affected in a minor way that a seizure would not have occurred. But a search might have, if the book-leaf invaded reasonable privacy expectations.

STANDING: A person aggrieved by an allegedly unlawful search or seizure and seeking a remedy (including the exclusion of evidence in a criminal case) must establish standing before a court will find the claim to be justificiable..

Old rule: Anyone legitimately on premises where a search occurs may challenge its legality. The court in Rakas held that this earlier test creates too broad a gauge for measurement of Fourth Amendment rights.

Rakas v. Illinois: The Court held that Fourth Amendment rights are personal rights that may not be asserted vicariously, that is, can only be urged by those whose rights were violated by the search or seizure.

Rakas rule: two part test

1)

Did the defendant a. have legitimate (reasonable) expectation of privacy in the place searched, or i. Ownership: demonstrate that the defendant had exercised complete dominion and control over, and the right to exclude others from those areas (lack of ownership Rakas case) ii. Authority: The defendant must be legally authorized to occupy the premises searched. b. did the defendant have a possessory interest in the item seized?

2)

If so, was the search or seizure illegal

STANDING IN THE BUSINESS CONTEXT Business Nexus Test:

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Downloaded From OutlineDepot.com The relationship or nexus of the employee to the area searched is an important consideration in determining whether the employee has standing. Where evidence is seized from an employees 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, such courts find no reasonable expectation of privacy.

United States v. Lefkowitz A corporate employees standing to challenge a search at corporate premises under this approach is not necessarily limited to his or her own desk or office. In this case, the corporations president and secretary who worked at the corporate premises were found to have standing to challenge the search not only as to their own desks or offices but as to the entire suite of offices.

United States v. Taketa The defendant did not have standing to challenge a search of his co-workers office, because that office had been given over to the co-workers exclusive use.

NOTE: Not all Circuits have adopted the business nexus test as a bright line rule. Some, like the Tenth Circuit has adopted this test in a limited manner and held that an employee should be able to establish standing by demonstrating he works in the searched area on a regular basis.

Minnesota v. Carter Bagging cocaine; Thompson leased apartment; Carter and Johns only present for business (about 2 1/2 hours) Court said: no Fourth Amendment violation An overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not Overnight guest has standing Guest just visiting does not have standing

THE GOVERNMENT ACTION REQUIREMENT: A person aggrieved because of an allegedly illegal search or seizure must establish standing before obtaining relief (usually exclusion of the evidence) BUT must also establish the government action requirement. Government Action Requirement: The search or seizure must have been accomplished by a government actor, as opposed to a private party, in order to be considered illegal under the Fourth Amendment. Burdeau v. McDowell
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Downloaded From OutlineDepot.com o If a private individual conducts a search or seizure and subsequently reveals to law enforcement officials evidence obtained during such a search or seizure, that evidence is admissible if offered by the government. o In this case, the record showed that no official of the federal government had anything to do with the wrongful seizure of McDowells property, or any knowledge thereof until several months after the property had been taken from him. When does private action become government action? This depends on the degree of government knowledge of, and participation in, the private persons action, as well as the purpose of the private person. If the private person can be said to have been an intentional instrument or agent of the government at the time of the search or seizure, then the government action requirement will be satisfied. For a private person to be considered an agent of the government, look at 2 critical factors: 1) Whether the government knew of and acquiesced (agreed) in the intrusive conduct, and 2) Whether the private actors purpose was to assist law enforcement efforts rather than to further his own ends.

Subsequent Government Action: Even where a private individual has acted without the encouragement, endorsement, and participation of the government, the Fourth Amendment still might be implicated if the later government conduct intrudes further on the aggrieved partys Fourth Amendment interests than did the private actors conduct. In such a situation, the governments further intrusion constitutes a separate search or seizure that satisfies the government action requirement. United States v. Jacobsen The Court held that the agents conduct did not violate a protected privacy interest. The additional invasions of respondents privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. Respondents could have no privacy interests in the contents of the package since it remained unsealed. The Court found that the agents viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. The Court also found that the seizure of the trace quantity of cocaine necessary for the field test, the intrusion on the respondents possessory interest was so minimal as to be non-cognizable under the Fourth Amendment.

Who is a Government Actor? The Supreme Court chose the inclusive approach, holding that the Constitution prohibits all unreasonable government intrusions; it protects the citizen against the State itself and all of its creatures. Inclusive approach entails: federal, state, and local public official, from FBI agent down to a local school board member/school officials.

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Downloaded From OutlineDepot.com The Fourth Amendment is thus applicable to the activities of civil as well as criminal authorities: building inspectors, Occupational Safety and Health Act Inspectors, and even firemen entering privately owned premises to battle fire.

3 ways police will have probable cause 1) through personal observation 2) through other police officers ---police functions as an institution/collective knowledge doctrine an officer can act on the orders of another officer as long as the officer giving orders has probable cause o this include an arrest based on a valid warrant obtained by another officer who had probable cause the arresting officer need not beware of the facts establishing probable cause an officer can act on info provided or given by other officer BUT cannot act on uncommunicated info 3) through a civilian an informant Probable Cause Definition: at the time of arrest, the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been committed. Carroll v. U..S

INFORMANT TIP: information from a civilian OLD TEST: Aguilar-Spinelli both prong had to be met 2 prong analysis the test to determine probable cause 1) Credibility of the informant 2) How reliable is the information was it based on firsthand knowledge

IL v. Gates: NEW TEST: totality of the circumstances, In Aguilar-Spinelli: both prongs had to be met Under the Aguillar-Spinelli test, there would be no probable cause in this case (Gates) because the credibility prong would fail as it was an anonymous tip The reliability prong was met because the info was corroborated

W HAT IS SUFFICIENT BELIEF TO MEET THE STANDARD FOR PROBABLE CAUSE? With few exceptions, searches and seizures must be supported by probable cause Illinois v. Gates Anonymous handwritten letter; police evidence corroborating; marijuana in trunk and house How are the police supposed to weigh tips? Court said: probable cause present Probable Cause Test Objective standard - Reasonable police officer
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Downloaded From OutlineDepot.com Totality of the circumstances Credibility Reliability

Maryland v. Pringle common enterprise people in a car Probable cause that all 3 knew because: No single out, none of the men provided information with respect to the ownership of the cocaine or money The belief of guilt must be particularized with respect to the person to be searched or seized. Car stopped for speeding; officer saw money in glove compartment; allowed to search; discovered cocaine Court said: probable cause present Probable cause is a reasonable ground for belief of guilt Must be particularized with respect to the person to be searched or seized Riding in car together Provides indicia of a common enterprise Constructive possession Knowledge Ability to exercise dominion and control

Ybarra v. IL No probably cause because the warrant was for the tavern and the not the patrons Police executing a warrant to search a tavern and its bartender for evidence of possession of a controlled substance conducted pat down searches of all the customers present, including Ybarra, and seized heroin of his person. The Court invalidated the search, stressing that it was based on insufficiently individualized suspicion as to Ybarra and that a person mere propinquity to others independently suspected of criminal activity does not without more give rise to probable cause to search that person. - Car common enterprise (Pringle case probable cause) - Tavern.less common enterprise (Ybarra NO probable cause) Mere propinquity (nearness/closeness) is not enough

DiRe The officers had no information implicating DiRe and no information pointing to DiRes possession of coupons, unless presence in the car warranted that inference, We conclude that the officer lacked probable cause to believe that DiRe was involved in the crime Any inference that everyone on the scene of a crime is a party to it must disappear if the Government singles out the guilty person.

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Downloaded From OutlineDepot.com Buttita was singled out: the criminal enterprise was between Buttitta and Reed, no reason to suspect DiRe In Pringle No single out, none of the men provided information with respect to the ownership of the cocaine or money.

IS IT AN OBJECTIVE OR SUBJECTIVE STANDARD?

PROBABLE CAUSE IS AN OBJECTIVE, NOT A SUBJECTIVE TEST.

Whren v. United States Suspicious Pathfinder; police u-turned; SUV sped off; while stopped at traffic light, officer saw cocaine in passengers lap Court said: probable cause present Probable Cause Test (see above) Objective standard Whether the reasonable officer could have found probable cause under the circumstances e.g, traffic violation The subjective intent of that officer does not matter e.g., racial profiling The search and arrest must be closely related in time (but the arrest doesnt have to come before the search)

THE WARRANT REQUIREMENT 4 Amendment Probable Cause: no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
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Warrants Elements: 1. Probable Cause 2. Oath Affidavit 3. Particularity person, place to be seized

FEDERAL RULE OF CRIMINAL PROCEDURE 41: A WARRANT MAY BE SOUGHT FOR: 1) Evidence of a crime 2) Contraband, fruits of crime, or other items illegally possessed 3) Property designed for use, intended for use, or used in committing a crime, or 4) A person to be arrested or a person who is unlawfully restrained.

FRANKS TEST Frank v. Delaware

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Downloaded From OutlineDepot.com This is a procedural remedy of questionable effectiveness for a criminal defendant who believes that a police officer lied in the warrant application. If the defendant can establish an intentional (or reckless) or falsity in the warrant application, and if the falsity was necessary to the finding of probable cause, then evidence discovered during execution of the warrant must be suppressed. Very difficult test to meet The defendant must ask for evidentiary hearing called a Franks hearing on the matter the defendant must make out a substantial preliminary showing with an offer of proof o Affidavits or otherwise reliable statements of witness should be furnished during the preliminary showing. United States v. Strude.

ARREST WARRANT VERSUS SEARCH WARRANT

The arrest warrant application typical is entitled a complaint rather than an application. The probable cause set forth in the arrest warrant differs from that found in a search warrant. In order to obtain an arrest warrant, the affiant must establish probable cause to believe that this particular person committed this particular crime.

The arrest warrant does not specify the place in which the arrest should occur. This is a significant because the arrest warrant conveys no searching authority upon law enforcement officers. If officers wish to enter premises in order to effectuate an arrest, they must have a search warrant in addition to the arrest warrant. (The only exception to this rule covers the dwelling in which the person named in the arrest warrant lives.)

WHAT INFORMATION MUST BE INCLUDED IN THE APPLICATION FOR A W ARRANT? Purpose: Functions as a check on the police A search or arrest must be approved by a neutral judge Limits the police conduct by restricting the scope of the search or seizure That which is to be searched and seized must be described with specificity in the warrant W HAT FORM MUST THE W ARRANT TAKE? Analysis: If warrant: Correctly obtained? Correctly executed? If no warrant: Does exception apply?

PARTICULARITY: The Fourth Amendment prohibits warrants that do not particularly describe the place to be searched, and the persons or things to be seized.

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Downloaded From OutlineDepot.com The standard applied in each case is whether the warrant contains sufficient particularities so that the officer can be reasonably certain of executing it correctly 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. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validity issued. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. Reasonable when issued?- look at the information at the time the warrant was issued

Andresen v. Maryland The warrant must detail with specificity (particularity) that which is to be searched or seized Must be particularized to that crime Facts: Attorney; investigators searched two offices; seized 3 items from Potomac Woods General file; 5 items from law office Issue: the Fourth Amendment was violated because the descriptive terms of the search warrants were so broad as to make them impermissible general warrants Court said: warrant not too general The warrant must detail with specificity (particularity) that which is to be searched or seized Must be particularized to that crime BUT if the warrant includes an inclusive expansive phrase at ending modifying the crime, it is ok Totality of the circumstances Does the warrant sufficiently describe the places to be searched and the things to be seized? Groh v. Ramirez ATF; very specific application; very general warrant Court said: warrant was invalid: because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly unreasonable under the Fourth Amendment. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents If the warrant references another document, then it must be incorporated and attached Searches and seizures inside a home without a warrant are presumptively unreasonable Applies with equal force to searches whose only defect is a lack of particularity in the warrant
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Downloaded From OutlineDepot.com Affidavit has to attached to the warrant

NEUTRAL AND DETACHED MAGISTRATE

A neutral and detached magistrate in most cases mean a judicial officer who has no stake in the investigation for which a warrant is sought. Prosecutors and other members of law enforcement agencies cannot issue warrants. Even judicial officers who became overly involved in a case may lose their neutrality or detachment. See Lo-Ji Sales, Inc. v. New York, where the Court found that the Town Justice issuing a warrant failed to be neutral and detached.

The Court invalidated warrants issued by a magistrate who was paid a fee for each warrant he issued, but who received no fee for warrants applications that he declined to approve. (See Connally v. Georgia) Rule 41 of the Federal Rules of Criminal Procedure grants authority to issue warrants as follows: o 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 a 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 a 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; and 3) A magistrate judge-in an investigation of domestic terrorism or international terrorism having authority in any district in which activities related to terrorism may have occurred, may issue a warrant for a person or property or outside that district.

Minor Offenses Although the federal rules permit only judicial officers to issue warrants, the Supreme Court has indicated that, for minor offenses at least, warrants may be issued by lay people who are neither judges nor lawyers. Shadwick v. City of Tampa o The Court upheld a municipal ordinance that permitted court clerks to issue arrest warrants in misdemeanor traffic cases, observing that no special competence was needed to evaluate the existence of probable cause in such cases.

WHAT ARE THE REQUIREMENTS IN EXECUTING WARRANTS?

THE 3 MAJOR ISSUES THAT COME UP IN EXECUTING A WARRANT ARE:

1) Mistakes when executing How reasonable was the mistake Good faith exceptionMaryland v. Garrison

- how the officer acted after realizing the mistake -

2) Time and manner of execution

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Downloaded From OutlineDepot.com specific time no longer 10 days after the warrant was issued- prevent stale warrants (not supported by

accurate facts) - during daytime 6am to 10pm - return the warrant back to the magistrate - knock and announce policy most jurisdiction have this 4 element 3) Treatment of Individuals
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MISTAKE IN EXECUTING WARRANTS:

How reasonable was the mistake

- how the officer acted after realizing the mistake ( how reasonable were the officers ensuing actions, was the search discontinued upon realizing the mistake?) Good faith exceptionMaryland v. Garrison

Good Faith Exception: Maryland v. Garrison Facts: A search without a warrant. Police obtained warrant; believe only one third floor apartment; actually two apartments; found drugs in wrong unit Only after the apartment had been entered and heroin, cash, and drug paraphernalia had been found did any of the officers realize that the third floor contained 2 apartments. As soon as they became aware of that fact, the search was discontinued. Court said: mistake was not violation The court recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.(good faith exception) The discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant o The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had the duty to discover and to disclose, to the issuing Magistrate at the time the warrant was issued.(validity/particularity test)

Hill v. California (mentioned in Maryland v. Garrison) Issue: the validity of the arrest of a man named Miller based on the mistaken belief that he was Hill. This case involved an arrest without a warrant. The officers in good faith believed Miller was Hill when they found him (Miller) in Hills apartment.
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Downloaded From OutlineDepot.com The Court found that the officers mistake was understandable and the arrest a reasonable response to the situation facing them at the time Rational: an officers reasonable misidentification of a person does not invalidate a valid arrest. This rationale is equally applicable to an officers reasonable failure to appreciate that a valid warrant describes too broadly the premises to be searched. (Maryland v. Garrison) NOTE ON TYPOGRAPHICAL ERRORS: Courts generally hold that a typographic error in the warrant does not render the ensuing search illegal, so long as the premises actually searched were the intended objects of the search. o Because many search warrants are executed by the same officer or group of officers who prepared the application and affidavit, the proper premises usually are searched. If a different officer executes the search and searches the wrong premises, presumable the rule of Maryland v. Garrison would apply and the search would probably be found to be valid under the good faith exception

TIME AND MANNER OF EXECUTION:

Federal Rules of Criminal Procedure 41 provides that the warrant must command the officer to: (a) Execute the warrant within a specified time no longer than within 10 days; The 10-day limit prevents officers from executing stale warrants, that is, warrants that may no longer be supported by accurate facts. Courts have recognized that stale information cannot be used to establish probable cause. (b) Execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and The term daytime is defined as the hours between 6:00pm to 10:00pm according to local time. The daytime hours restriction represents a balance between individual privacy interest (which, presumably, are heightened during nighttime hours) and government needs. (c) Return the warrant to the magistrate judge designated in the warrant.

KNOCK AND ANNOUNCE Many jurisdictions also require that officers knock and announce before entering premises pursuant to a search warrant.

DO POLICE HAVE TO KNOCK AND ANNOUNCE BEFORE SEARCHING A DWELLING? Wilson v. Arkansas Door open; police announced arrival; entered dwelling; found drugs Court said: failed to knock - Fourth Amendment violation Absent exigent circumstances, the police must knock and announce their presence before entering a residence to execute a search warrant

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Downloaded From OutlineDepot.com However, the knock-and-announce procedure is not always constitutionally required; it may be reasonable to dispense with it if, for example, it would endanger officer safety or the preservation of evidence. Richards v. Wisconsin Motel room; drug dealer saw police; closed door; police identified themselves; kicked and rammed door; entered Court said: failed to knock - NO Fourth Amendment violation Test: In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence Police cannot have blanket exception cases by case basis totality of the circumstances Balancing of reasonableness must have reasonable suspicion United States v. Ramirez Facts: Officers broke through a garage window while executing a no-knock warrant Reasonableness of police conduct Reasonable suspicion standard depends in no way on whether police must destroy property in order to enter. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression.

How long a period of time the police must wait after knocking and announcing before they may forcibly enter a residence? United States v. Banks - Facts: Weekday afternoon at 2pm, police knocked, waited 15-20 seconds, no answer, then police broke down the door Banks was in the shower and did not hear the police knowing and was just exiting the shower as the police entered - The police did not violate the Fourth Amendment when they waited only 15-20 seconds if they had reason to believe that waiting longer would provide the opportunity for the suspects to destroy contraband - Usually case by case basis and based on what is reasonable Hudson v. Michigan The exclusionary rule does not apply to evidence gained after police violate the knock and announce requirement, or at least not where the violation is a failure to wait a sufficient amount of time after announcing their presence before entering

TREATMENT OF INDIVIDUALS WHEN A WARRANT IS BEING EXECUTED:

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Michigan v. Summers When there is a search of a residence, those present at the time of the search may be detained

Muehler v. Mena Mena was asleep; SWAT came; handcuffed and taken to garage; asked name, date of birth, place of birth, and immigration status Court said: handcuffing and questioning did not constitute a violation Three legitimate law enforcement interests that provide substantial justification for detaining an occupant: Preventing flight in the event that incriminating evidence is found Minimizing the risk of harm to the officers Facilitating the orderly completion of the search Mere police questioning does not constitute a seizure Even when officers have no basis for suspecting a particular individual, they may generally: Ask questions of that individual Ask to examine the individuals identification Request consent to search his or her luggage

W HAT IF THERE ARE UNFORESEEN CIRCUMSTANCES OR MISTAKES W HILE EXECUTING A W ARRANT? Los Angeles County, California v. Rettele New owners of house; police executed warrant; people naked; police held them gunpoint; not allowed to dress Court said: mistake was not violation When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated

Zurcher v. Stanford Daily Valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found

ARREST Arrests must be reasonable. Reasonableness test consider 4 things 1. The seriousness of the offense
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Downloaded From OutlineDepot.com 2. The level of suspicion necessary 3. The requirement of a warrant 4. The use of force

Serious of offense Given by statutes the 4 amendment acts as a check on police conduct Atwater v. City of Lago Vista Cop saw family without seatbelts; pulled over truck; arrested mother Court said: no fourth amendment violation The Court confirmed that the Fourth Amendment also permits arrests even warrantless ones for traffic misdemeanors committed in their presence. The standard of probable cause applies to all arrests, without the need to balance the interests and circumstances involved in particular situations If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender Virginia v. Moore Citation only offense the state supreme court said the search violated the 4 amendment -defendant should not have been arrested The US Supreme Court said that it did not violated the 4 amendment -The 4th amendment has a harsh punishment suppression of evidence The Court said the 4 amendment should apply across the board all states that is, the Fourth Amendment protections cannot vary from place to place. Rule: when officers have probable cause to believe that a person has committed a crime in their presence, the 4 amendment permits them to make an arrest, and to search the suspect in order to safeguard the evidence and ensure their own safetypg 304 Level of Suspicion Probable cause is the level of suspicion needed for an arrest Reasonable suspicion needed for a seizure standard :- reasonable suspicion that the defendant has committed a crime, is about to commit a crime or had committed a crime Voluntary encounter not an seizure/arrest, no level of suspicion the officers walk up to you and ask your name Stop is a seizure of a person reasonable suspicion that the person has committed a crime or about to commit a crime Stop and Frisk - a seizure and a search reasonable suspicion reasonable suspicion that the defendant is harmed and dangerous (required for a frisk)by clearly articulated facts, not based on hunch or suspicion Arrest is a seizure level of suspicion is probable cause Terry test deals with weapons (armed with weapons, includes not only guns but also knives, sharp instruments, etc.) suspicion that the defendants have weapons not merely that the defendant was dangerous
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Downloaded From OutlineDepot.com Requirement of a Warrant The warrant requirement in the context of arrests and other seizures is governed by the location of the action. Public place no warrant, so long as there is probable cause o Police also can seize contraband in a public place without a warrant. A defendants home includes any residence where the defendant is an overnight guest. A defendants brief, temporary stay in a home for example, having dinner, chatting, or sharing a few drinks is not enough to treat that home as the defendants. Anothers/third party home arrest warrant - search warrant also o o To protect the privacy expectations of that third party The search warrant must be based on an affidavit establishing probable cause to believe that the defendant will be found in the home of the third party at the time of the search?? Kaupp v. Texas o o o The Court noted that it did not necessarily bar reasonable suspicion detentions for fingerprinting where the judiciary authorized them by issuing a warrant, even though based on less than probable cause. The Court suggested that warrants to pick someone up solely for fingerprinting may be issued based solely on reasonable suspicion. Limited detentions Ones home arrest warrant no search warrant to search home o o

Warrant requirement is excused in exigent circumstances Warden v. Hayden o The Court had noted that the 4 Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Minnesota v. Olsen o The court noted iin dictum that warrants may be dspesnsed with if there is hot pursuit of a fleeing felon, or imminent destruction of evidence.or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling.
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Use of Force In making an arrest, with or without a warrant, the arresting officer may be required to use force if the suspect flees or resists. Because an arrest is a seizure, the force used must be reasonable, which depends on: A careful balancing of the nature and quality of the intrusion on the individuals Fourth Amendment interests against the countervailing governmental interests at stake Careful attention to the facts and circumstances of each particular case are required, including o o o the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

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Downloaded From OutlineDepot.com The reasonableness of a particular use of the force must be judged from the perspective of a reasonable officer on the scene.

Tennessee v. Garner The deadly force rule o o The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

California v. Hodari D. Youths clustered around vehicle; saw cops; cops chased youth; when youth saw cop, threw crack rock; cop then caught and tackled him Court said: no fourth amendment violation The Court said that seizure for Fourth Amendment purposes means a laying on of hands or application of physical force to restrain movement as well as submission to the assertion of authority. In this case, the fact that the police officer neither grabbed Hodari, nor got him to submit to his show of authority, meant that Hodari had not been seized when he threw down the cocaine. An seizure requires either physical force or submission to the assertion of authority A fleeing suspect has not been seized unless he stops, either because he is physically forced to do so or because he submits to an officers show of authority. If officer shoots and missed no seizure If a person is accidentally injured during the course of a high-speed chase no seizure -(no intentional government seizure)

County of Sacramento v. Lewis The Court held that the Fourth Amendment did not apply to an action for damages that were caused by a highspeed police chase and ensuing vehicular crash. No Fourth Amendment seizure because the police accidentally stopped the suspect by crashing into him, Not a seizure not intentional government seizure
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Scott v. Harris The Court held that Deputy Scotts actions were reasonable under the 4 amendment even though he placed Harris at risk of serious injury or death. The Court determined that it did not matter whether or not the officers action constituted application of deadly force (Garner), all that matters is whether his actions were reasonable. Actions were reasonable in this case

REQUIREMENT OF PROMPT ARRAIGNMENT

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Downloaded From OutlineDepot.com Gerstein v. Pugh The Court held that the officers probable cause judgment justifies only a brief period of detention to take the administrative steps incident to arrest. A Gerstein hearings taking place with 48 hours of arrest is presumptively reasonable. (County of Riverside v. Mclaughlin) A post 48-hour Gerstein hearing is presumptively unreasonable and the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.
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EXPIRATION OF 4

AMENDMENT INTEREST AFTER ARREST

The Fourth Amendment not only governs the reasonableness of arrests, but also it requires a prompt post-arrest determination of probable cause in the case of a warrantless arrest.

SEIZURES AND ARRESTS IS A WARRANT NEEDED FOR ARRESTS? United States v. Watson Informant; set up meeting with a criminal; signaled to police; police searched criminal; searched his vehicle; found stolen credit cards Court said: constitutional A police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony Arrest warrants are not needed to make an arrest in public Arrest warrants are needed to make an arrest in the home Unless exigent circumstances exist Search warrants are needed to make an arrest in a third partys home BUT an overnight guest has an expectation of privacy (then an arrest warrant would be needed) STOP AND FRISK THE TERRY TEST

Encounter

Stop/Seizure

Level of Suspicion

Voluntary Stop Frisk (pat down) Yes Arrest

No Yes

None RS that a crime was committed, or will be committed RS that the person is armed and dangerous

Yes

Probable cause

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Downloaded From OutlineDepot.com Voluntary encounter The individual is free to leave without answering any questions and in which no 4 amendment search or seizure occurs
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Seizure: Seizure under Terry must be no more than a brief stop, on the scene detention that is limited in time Level of suspicion: Requires only reasonable suspicion that criminal activity is afoot During the brief period of the stop, the officer may ask questions in order to confirm or dispel suspicions, but if the officers suspicion are not confirmed within a very brief period of time, the detention must end When the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . Stop: The individual, for a brief period , is not free to terminate the encounter. Stop/Seizure: because a stop temporarily restricts the individuals freedom to leave, a seizure is said to have occurred A stop occurs when limited seizure of a person to reasonable believe that his freedom of movement was restricted An officers request to ask a few questions does not turn the encounter into a stop unless the officers words, conduct,or demeanor would signal to an objectively reasonable person that the person is not free leave Frisk A frisk is a patdown of a persons outer clothing (Terry) The patdown is limited in scope and intensity to its justification the officers purpose is to discover weapons. Lingering even a few seconds over a package that feels like it contains drugs goes beyond the scope of the justification . In addition to frisking a person, an officer may also frisk an area if the officer has reasonable suspicion that a person within the area is armed and dangerous. The Court applied this rule to the passenger compartment of a car in Michigan v. Long and, in Maryland v. Buie, to a residence in which police were executing an arrest warrant. Arrest: The invasion of an individuals freedom is so intrusive, where that freedom is restricted for more than a brief period of time. Level of suspicion: probable cause minimal /reasonable intrusion of person of privacy in ones person An officer may frisk an area if the officer has reasonable suspicion that a person within the area is armed and dangerous. Level of suspicion: (individualized) reasonable suspicion that a suspect is armed and dangerous.

NOTE: Neither the Terry frisk nor the search incident to arrest, however, would permit searching the trunk. A trunk search requires probable cause to believe that fruits, contraband, or evidence of a crime will be found in the trunk.
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THE AUTHORITY FOR POLICE TO STOP AND FRISK Terry v. Ohio Chilton and Terry; walked down street; peered in window; repeated routine; third man came to talk; then followed him Court said: no fourth amendment violation Police may frisk an individual if there are reasonable grounds for believing that the person has a weapon that might endanger the officers Both stops and arrests are seizures within the meaning of the Fourth Amendment Stop - reasonable suspicion Arrest - probable cause Differentiating factors: (1) Duration; (2) Location Terry v. Ohio Reasonable Test: balancing test: o o Government interest 1) to prevent crimes and 2) safety of police officers Private interest Terry right to freedom of movement on the streets

Defendant: the police did not have probable cause for the stop Prosecutor: No probable cause required because this was not an actual search but a voluntary search and minimal intrusion Court: probable cause is not needed, this was not an arrest but a stop and a seizure Court said that arrest is different form a frisk (a limited search for weapons).see page 333 The court adopts 2 part inquiry whether the seizure and search were unreasonable whether the officers action was justified at its inception the scope of the officers actions afterwards; Whether the officers actions were reasonable in scope to the circumstances which justified the inference in the first place.

Under a Terry case/stop, however, police can make you show id 3 point from Terry: The suspicion has to be based on specific articulable facts that lead the officer to believe that criminal activities are afoot.cant be based on a hunch based on specific instances that justify.needed for both a frisk and a stop
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4 point from Terry: The nature of the crime can support a reasonable suspicion to frisk

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WHEN IS A PERSON SEIZED? United States v. Mendenhall Woman got off plane; DEA agents spotted her; questioned her in the concourse; took her to office; searched bag and person; found cocaine Court said: no fourth amendment violation Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred
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Downloaded From OutlineDepot.com A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would NOT have believed that he was free to leave Examples of circumstances that might indicate a seizure (even where the person did not attempt to leave): The threatening presence of several officers The display of a weapon by an officer Some physical touching of the person of the citizen The use of language or tone of voice indicating that compliance with the officers request might be compelled In this case, the Court found that no seizure occurred because the events took place in the public concourse, the agents wore no uniforms and displayed no weapons, they did not summon the Mendenhall but instead approached her and identified themselves as federal agents

Florida v. Bostwick Test for seizure on buses: Whether a person would feel free to decline the officers requests or otherwise terminate the encounter

United States v. Drayton: o o o This case involved questing of bus passengers by three police officers. Test: If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. Law enforcement officers need not have a basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage.

Brendlin v. California The Court held that a purported Terry stop of a car is ordinarily a seizure not only of the car and its driver but of any passengers. Passengers are seized when they are riding in a car stopped by police officers Police conduct a traffic stop of a vehicle for an expired registration, the Court held that the passengers are not free to leave. Conclusion: the officer had no justifiable grounds (reasonable suspicion) for stopping the car

Arizona v. Johnson: o o The Court concluded that a traffic stop of a car communicates to a reasonable passenger that he or she Is not free to terminate the encounter with the police and move about at will. The Court clarified Brendlin, emphasizing that where there was at least reasonable suspicion to stop a car, the Terry stop test was automatically met as to the cars passenger. However, the Terry frisk test was not automatically met. The police had to have reasonable suspicion that the person frisked was herself armed and dangerous.

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Downloaded From OutlineDepot.com o An officers inquiries into matters unrelated to the reason for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as such inquiries do not appreciable extend the stops duration.

STOPS VERSUS ARRESTS THE DISTINCTION BETWEEN STOPS AND ARRESTS Having decided that an individual has been seized, it must then be determined whether the seizure was a Terry stop which only requires reasonable suspicion, or was the seizure a full blown arrest, which requires probable cause. Stops an arrests are distinguished primarily on the basis of the length and place of detention

THE LENGTH OF THE STOP

United States v. Sharpe If an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop (there is no hard and fast time limit) Between 30 and 40 minutes was a stop, not an arrest The Court upheld a 20 minute detention as a Terry stop, emphasizing that during the detention officers were pursuing their investigation diligently and effectively.

United States v. Place Detaining a persons luggage for 90 minutes was a seizure under the Fourth Amendment Only long enough to effectuate the purpose for the stop; If held for additional investigation, it is not a stop, it is an arrest The detention of a suitcase (items may be subjected to a Terry stop) for 90 minutes was deemed too long.

THE PLACE OF DETENTION Pennsylvania v. Mimms The Court created a bright line rule permitting officers to order drivers out of their vehicles after a Terry traffic stop, as a matter of officer safety. Passengers may ordered out as well (Maryland v. Wilson) Dunaway v. New York An arrest has occurred if police officers take a suspect to the station house for questioning The suspect was taken from a neighbors home to a police car, transported to police station, and placed in an interrogation room. Florida v. Royer Taking a suspect from the public area of an airport into a small room constituted an arrest

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Downloaded From OutlineDepot.com Detentions that move beyond the immediate vicinity of the stop are likely to be considered arrests. Hayes v. Florida Taking a suspect to the police station house for fingerprinting was an arrest and had to be based upon probable cause Suspects forcibly taken to police headquarters will undoubtedly be viewed as having been arrested. Hayes was picked up on reasonable suspicion of rape and taken to a stationhouse for fingerprinting Forcibly taken to a stationhouse/ police headquarters constitutes an arrest. (Kaupp v. Texas)

W HAT MAY POLICE DO W HEN THEY STOP AN INDIVIDUAL? Michigan v. Long If the police reasonably believe that a person might be dangerous, they can conduct a limited investigation of an area from which a person could obtain a weapon A Terry frisk extends to cars A frisk is not limited to a person A frisk can apply to a compartment of a car Doesnt apply to trunk probable cause needed to search a trunk

Michigan v. Buie When the police arrest a person, they may conduct a prospective sweep of the premises if they have reasonable suspicion that a person might be there who poses a threat to them Such a sweep may extend only to a cursory inspection of those places where a person may be found

Minnesota v. Dickerson When the police frisk a person, they may seize any evidence that is apparent to their experienced plain feel

Hiibel v. Sixth Judicial District Court of Nevada Caller reported assault; officer arrived; asked for mans name; he refused 11 times; officer arrested the man Court said: no fourth amendment violation Interrogation relating to ones identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure An officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop Dont have to answer a policecant make you show id but they can ask your nameneeds reasonable suspicion?

W HAT IS SUFFICIENT FOR REASONABLE SUSPICION?

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Downloaded From OutlineDepot.com Like probable cause, reasonable suspicion must be supported by articulable facts the officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. Totality of the circumstances: this standard requires courts to consider all facts and circumstances identified by the officer, as well as deference to the officers expertise in interpreting those facts and circumstances.

REASONABLE SUSPICION BASED ON TOTALITY OF THE CIRCUMSTANCES United States v. Arvizu Border patrol; suspicious minivan; officer stopped and found marijuana Court said: no fourth amendment violation..the stop was properly based on reasonable suspicion The Fourth Amendment is satisfied if the officers action is supported by reasonable suspicion to believe that criminal activity may be afoot Must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing The agent was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the areas inhabitants. The likelihood of criminal activity need not rise to the level required for probable cause

Evaluating whether reasonable suspicion exists, like evaluating facts for probable cause, requires an assessment both of the quantity of available information and the quality of that information. o o Quality of the facts - reliable quality Quantity of the information

QUANTUM/QUANTITY OF EVIDENCE FOR REASONABLE SUSPICION

Brown v. Texas The Court overturned a finding of reasonable suspicion that was based solely on the defendants presence in a high crime area.

Illinois v. Wardlow Wardlow looked at police officers; took off with opaque bag under arm; police officers caught Wardlow and felt the bag; identified gun inside Court said: no fourth amendment violation The court held that in an area of heavy narcotics trafficking, an individuals unprovoked flight upon noticing the police give rise to reasonable suspicion justifying a Terry stop. Factors to consider: Fleeing from the police..unprovoked
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Downloaded From OutlineDepot.com High drug areawould not alone be enough to satisfy reasonable suspicion

QUALITY OF THE EVIDENCE FOR REASONABLE SUSPICION

(INFORMANTS TIPS)

TIPS: Factors to consider: Whether the informant is known or anonymous Whether the information can predict future behavior

Alabama v. White Police received anonymous telephone call; followed individual; found drugs Court said: no fourth amendment violation; predict future behavior When the officers stopped White, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that she was engaged in criminal activity. A tip standing alone would not warrant a man of reasonable caution in the belief that a stop was appropriate Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause Both factors - quantity and quality - are considered in the totality of the circumstances - the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion Adams v. Williams Known informant Information more reliable Florida v. J.L. Police received anonymous telephone call; located individual young black male at bus stop wearing plaid shirt: found gun Court said: fourth amendment violation; do not predict future behavior The Court unanimously held that a person carrying a gun to be insufficient, by itself, to justify a Terry stop and frisk. Cases in which the officers authority to make the initial stop is at issue, an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm REASONABLE SUSPICIONS BASED ON PROFILES 1. The fact that a person matches a profile probably does not, in and of itself, give rise to reasonable suspicion

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Downloaded From OutlineDepot.com 2. But officers may rely in part on cumulative law enforcement wisdom embodied in profiles when assessing the inferences that may be drawn from a persons conduct or attributes, and 3. the fact that a person matches a profile does not detract from the inferences that might reasonably be drawn

Reid v. Georgia - Reid was suspected of wrongdoing because he appeared to the agent to fit he so-called drug courier profile, a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics. - The Court held that these facts were not sufficient to give rise to reasonable suspicion required for the stop.

United States v. Sokolov DEA agents were suspicious; various factors pointed to possible drug trafficker Court said: no fourth amendment violation

PROFILES CONCLUSION: Reid and Sokolov appears to be that courts reviewing Terry stops cannot rely exclusively on the fact that an individual matched a profile, but they may defer to accumulated law enforcement experience, embodied in profiles, when they evaluate for themselves the suspiciousness of certain behaviors and characteristics that form the asserted basis for the stop.

THE PATRIOT ACT: The Patriot Act: in response to the 9/11 attacks The Patriot Act is a lengthy and complex piece of legislation, and its provisions create significant changes in the federal criminal justice system, These changes include: 1) authorizing the detention for questioning for up to seven days of individuals who are certified by the US attorney general or the commissioner of immigration as immigrants suspected of involvement in terrorism 2) roving wiretaps taps on any telephone used by a person suspected of involvement in terrorism. 3) the availability of nationwide search warrants for terrorism investigations 4) the sharing among intelligence and criminal justice officials of certain information on investigations.

EXCEPTIONS TO THE WARRANTS REQUIREMENT PLAIN VIEW Police officers are permitted to seize contraband, fruits, evidence, and instrumentalities of crime that they find in plain view.

Coolridge v. New Hampshire Under certain circumstances the police may seize evidence in plain view without a warrant (reasonable if immediately apparent as contraband)
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Downloaded From OutlineDepot.com Common facts: The police officer has a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused Legitimate seizure: Search is supported by one of the recognized exceptions to the warrant requirement Where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object Not legitimate seizure: Used to extend a general exploratory search from one object to another until something incriminating at last emerges Horton v. California Warrant authorizing search of proceeds of armed robbery; officer viewed weapons used in the crime Court said: no violation Although the warrant did not authorized him to seize the weapons, he could do so pursuant to the plain view doctrine because he was lawfully on the premises in which he viewed them. Additional conditions: Not only must the item be in plain view; its incriminating character must also be immediately apparent Not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself Arizona v. Hicks Police entered apartment; warrant; thought stolen merchandise; moved equipment; found numbers; radioed headquarters Court said: violation Since it was not apparent that the item was contraband, the officers needed to have probable cause for their search Minnesota v. Dickerson (plain touch) Respondent suspicious; cop patted down; felt small lump; crack cocaine Court said: violation Plain view doctrine not limited to plain view, could include plain feel The officers continued exploration of respondents pocket after concluded that it contained no weapon was unrelated to the sole justification to the search under Terry... the protection of the police officer and others nearby Pat-down = okay Manipulate crack cocaine = not okay Since officer had to do this, it was not immediately apparent Crack cocaine must be reasonably apparent without the necessity for manipulation

SEARCHES INCIDENT TO ARREST

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Downloaded From OutlineDepot.com Requirements: 1) An arrest 2) Limited in Scope 3) Applies to containers 4) Contemporaneous 5) Probable cause to seize items probable cause that the item is contraband, or a fruit, instrumentality, or evidence of a crime 6) Applies to cars Gant 2 part tests 7) Protective Sweeps

Chimel v. California Arrested robber (pursuant to a warrant); searched entire house; opened drawers Court said: violation When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape It is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction AND the area into which an arrestee might reach in order to grab a weapon or evidentiary items

United States v. Robinson Robinson stopped; expired license; officer searched Robinson; found heroin Court said: no violation - arrest A search incident to arrest is permissible even if there is no reason to believe that the individual has weapons If police make lawful arrest of a citizen, then may search regardless of reason for arrest The authority to search flows from the arrest itself it must be lawful or the results of the search will suppressed, a search incident to arrest requires no additional justification.

Knowles v. Iowa Speeding violation; Knowles received citation; officer searched vehicle; marijuana; pot pipe Court said: search of car was unconstitutional - no arrest incident to search The Court held that the doctrine of searches incident to arrest applies only when a police officer actually effectuates a custodial arrest. Custodial arrest: is a seizure of the person with the intention of thereafter having him transported to the police station or other place to be dealt with according to law. The threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest
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Downloaded From OutlineDepot.com Arrested person has more reason to engage in violence and destroy the evidence (policy) o United States v. Chadwick The Supreme Court invalidated the search of a footlocker that had been removed to a government building from the place of arrest The search and arrest must be contemporaneous they cannot be too remote in time from each other. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exlusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest o United States v. Robbins The Eight Circuit Court of Appeals invalidated the search of a wallet that police had left at the place of arrest and returned for after the arrest was completed.. The court held that the government was unable to establish that he search of the wallet was contemporaneous with the arrest. o United States v. Clemons The Ninth Circuit Court of Appeals upheld a suitcase search that took place two or three minutes after Clemons arrest, even though Clemons was approximately 300 yards from the suitcase when he was arrested. Clemons dropped the locked suitcase and attempted to flee the scene. After he was captured and arrested, he was taken immediately to the DEA office at the airport a walk that took or three minutes. o The court held that the search was incident to the arrest because the two were closely related in time. United States v. Edwards The Supreme Court upheld the seizure of an arrestees clothing under the search incident to arrest doctrine, even where it occurred in the jail some ten hours after the arrest. There appeared to be extenuating circumstances justifying the delay. This should be viewed as a narrow exception for situations in which an immediate search is virtually impossible and exigency still exists at the time of the later search Seizure of an item found during a search incident to arrest o o In order to justify seizing an item found during a search incident to arrest, the officer must have probable cause to believe that the item is contraband, or a fruit, instrumentality, or evidence of a crime. If not, the item must be returned to the arrestee eventually, although it may be placed in a locker for safekeeping while the arrestee is detained.

SEARCHES IN AUTOMOBILES New York v. Belton

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Downloaded From OutlineDepot.com Officer gave chase; pulled car over; men did not know the owner; smelled burnt marijuana; searched men; searched car; discovered black leather jacket; found cocaine Court said: no violation - 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 the arrest. - The arresting 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. - Encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk The police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach Open or closed The lawful custodial arrest justified the infringement of any privacy interest the arrestee may have Thorton v. United States Suspicious driver; driver parked, got out; officer patted him down; felt front pocket; marijuana and cocaine Court said: no violation Belton governs even when an officer does not make contact until the person arrested left the vehicle The Belton rule applies regardless of whether the police interaction was initiated before or after the suspect left the vehicle The court held that so long as an arrestee is the sort of recent occupant of a vehicle, officers may search that vehicle incident to arrest. Officers may search vehicles upon arrest if they have reason to believe that evidence relevant to the crime of arrest might be found in the vehicle. Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment

Arizona v. Gant 2 part rule: GOVERNING RULE 1) When the search takes place? If the arrestee (recent occupant) is unsecure, and within reach of the passenger compartment at the time of the search, the officer can search the entire passenger compartment of the vehicle If the arrestee is secured, then the officer cannot search the car (no issue of officer safety) Narrows Belton
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Downloaded From OutlineDepot.com 2) The entire passenger compartment of a vehicle of a current arrestee may be searched incident to arrest as well as when there is reason to be believe that there is evidence relevant to the crime of arrest might be found in the vehicledoesnt matter whether the arrestee is secured or unsecured Reason to believeappears to be a lower standard than reasonable suspicion

PROTECTIVE SWEEPS Rule permitting in every in-home arrest a protective check of areas adjacent to the arrest from which an attack might immediately 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 a danger to the officer or others may be lurking. The search is limited only to where someone can hide, a search of a drawer would be unconstitutional because someone cant hide in there, therefore, the police cannot open closed drawers Can seize evidence only if they have probable cause Sweep must be contemporaneous with the arrest

Maryland v. Buie Officers entered Buies residence armed with a warrant for his arrest and apprehend him as he was leaving his basement. An officer went into the basement to see if an accomplice was hiding there. Although the officer found no one inside, he spotted and seized a red running suit that had been described by an eyewitness to the robbery. The Court held that A protective sweep is not a full search of the premises. Search is limited to the cursory inspection of those spaces where a person may be found Must last no longer than is necessary to dispel the reasonable suspicion of danger reasonable suspicion that the people in the house is armed and dangerous is not required but only that the person is dangerousdont need to establish that factonly that people may be in the house

EXIGENT CIRCUMSTANCES Factors to consider: (United States v. MacDonald) The grave nature of the ongoing crimes The presence of loaded weapons A likelihood that the suspects were themselves using narcotics A clear and immediate threat of danger to law enforcement agents and to the public at large Not only more than the minimum probable cause to believe, but actual knowledge, that the suspect committed the crime At least strong reason to believe the suspects were on the premises A likelihood that a suspect might escape if not quickly apprehended An urgent need to prevent the loss of evidence The additional time required to obtain a warrant (given the time of day) An attempt by the agents to enter peacefully
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Downloaded From OutlineDepot.com Requires a case by case analysis Balancing Test: The doctrine requires balancing the severity of the warrantless intrusion on protected interests and the severity of the criminal activity

Justification: Hot pursuit Welsh v. Wisconsin Drunk driver; another driver tried to help; drunk driver left car and walked to his house; police followed; found him upstairs and arrested him Court said: the warrantless home entry, a major invasion of privacy, could not be justified by the governments interest in solving a relatively minor crime An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made Risks: Destruction of evidence - blood alcohol evidence Distinguish from hypothetical Gravity of offense - drugs Concern of preserving the evidence - less likely than Welsh

The police can enter based on exigent circumstance sif they have reason to be evidence will be destroyed

Warrantless entry in a home based on exigent circumstances is unconstitutional if the offense is minor (traffic violation)

Vale v. Louisiana The government cannot justify a warrantless entry and search on the risk that narcotics will be destroyed unless they demonstrate that the narcotics were in the process of destruction or about to be removed Police officers arrested Vale in front of his home after observing him engage in what appeared to be narcotics transaction. The officers entered his home and searched it, later claiming that the warrantless search was justified by the risk that the drugs would have been destroyed if they had waited for a search warrant. Has to demonstrate that they think that the drug is being destroyed

Cupp v. Murphy The Court validated the seizure of blood, tissue, and fiber samples from under the fingernails of a murder suspect. The suspect had voluntary submitted to questioning regarding the recent strangulation of his wife. Fearing that the evidence on his hands might be destroyed, the police took incriminating samples of blood, tissue, and fiber from under his fingernails without his consent. The severity of the crime involved and the minimal intrusion occasioned by the search and seizure clearly influenced the Courts decision
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Downloaded From OutlineDepot.com Exigent circumstance evidence is being destroyed

Schmerber v. California The Court upheld warrantless blood sampling activity. Schmerber was in the hospital at the time, the delay necessary to obtain a warrant threatened the destruction of evidence Exigent circumstance blood alcohol will destroy with time in the blood --warrantles search ok? Hot pursuit Fleeing felon This rule permits officers to enter premises without a warrant if: 1) they are in pursuit of a fleeing felon..doesnt have to mean actual chasing 2) that pursuit began in a public place..where the officer could have made the warrantless arrest

United States v.Santana Officers have probable cause to arrest Santana for a narcotics felony Santana was standing in her door way when the pursuit began sufficient for public space

Warden v. Hayden Limited by time after finding the person should end Limited in space should only search where they think the person or weapons can be found

Brigham City, Utah v. Charles W. Stuart Police called regarding loud party; entered backyard; witnessed fight through window; entered house; fight ceased Court said: Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury, regardless of an individuals officer state of mind (The Court found reasonable basis under these circumstances for police to believe an occupant was seriously injured or imminently threatened with serious injury, thus justifying a warrantless entry into the home, regardless of an individual officers state of mind.) Exigency: Subjective intent does not matter Objective standard Michigan v. Fisher This emergency aid exception does not depend on the officers subjective intent or the seriousness of any crime they are investigating when the emergency arises. STANDARD: It requires only an objectively reasonable basis for believing, that a person within [the house] is in need of immediate aid,

Warden, MD. Penitentiary v. Hayden

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Downloaded From OutlineDepot.com Robbery of cab company; driver saw suspect; radioed dispatch who radioed police; went to house; found suspect (then arrested him) Court said: okay The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others Broad scope Police enter house without a warrant to: Prevent the dangers that the suspect may resist or escape Payton v. New York Murder investigation; lead to Payton; police went to his house; knocked and announced; no response, but entered; found .30-caliber shell casing Court said: not okay The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed Searches and seizures Inside a home, without a warrant Presumptively unreasonable

United States v. Rubin Suspect was arrested near a neighborhood gas station, he yelled out the station attendant call my brother According to the agents, the statement indicated a strong possibility that the evidence at the house would be destroyed by the brother absent intervention. Exigent circumstances belief that the brother could be home destroying drugs

United States v. Crespo Danger to officers or others in narcotics cases also frequently justifies warrantless law enforcement activity. The Court considered a failed narcotics sting that created dangerous circumstances for an informant and officers. The danger convinced the court to uphold a warrantless home entry

Illinois v. McArthur The Court held that police acted constitutionally when they prohibited a resident from entering his home for two hours while they obtained a search warrant for marijuana.

NOTE If exigent circumstances arise as a direct result of irresponsible conduct by law enforcement officers, or as a direct result of conduct that the officers intended to create the exigent circumstances, their search and seizure activity will not be approved. But if the exigencies arise because suspects respond in a criminal fashion to routine police actions, the courts are not reluctant to uphold the resulting search or seizure.

AUTOMOBILES AND CONTAINERS

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Rule: Automobile Exception Police will never need warrant (because warrants requires probable cause, which would have already be present) The exception extends to containers within vehicles as well. Policy: the Fourth Amendment does not require warrants for vehicles because they may disappear before a warrant can be obtained. Less privacy expectations in a vehicle than in a home Being heavily regulated: they are subject to state licensing requirements that further limit their owners and occupants privacy interests.

Carroll v. United States A search warrant is unnecessary where there is probable cause to search an automobile stopped on the highway The agents developed probable cause to believe that Carroll was transporting alcohol in his car. To search a trunk otherwiseneed probable cause that the trunk contains fruits of a crime or contrabands Cant normally search the trunk of a car, but because the car is mobile and he might flee by the fact that he place the bag in the car the officers can now enter without the car without warrant, if they have probable cause (just because he put the bag in a mobile device because he can now drive the car away) After searching the trunk, can they search the entire car? YES, if the officer has probable cause that here is drugs in the car Search incident to arrest.does the defendant have to have been in the carunder Wyomingregardless of who owns the car

California v. Carney Mobile home; police see boy enter; stop him; boy says exchanged sex for marijuana; police enter without warrant Court said: no fourth amendment violation Vehicle exception: Element of mobility (includes those with permanency) Reduced privacy expectations (because of regulations) The Court suggested that fixed, immovable mobile homes might not be subject to the exception even though they might technically be considered vehicles. Factors to consider in distinguishing mobile homes from residences: location, whether the vehicle was licensed, whether it is connected to utilities, and whether it has convenient access to a public road

Chambers v. Maroney If the automobile had been taken to the police station, and thus was not movable, the automobile exception still applies
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Downloaded From OutlineDepot.com United States v. Chadwick Containers, such as luggage, can be searched without a warrant only if there are exigent circumstances California v. Acevedo Surveilled marijuana; guy left apartment with bag; put it in trunk; started to leave; police stopped; looked for bag in trunk Court said: no fourth amendment violation If there is probable cause to search a vehicle, the probable cause extends to the containers within it The Court held that containers in cars may be searched under the automobile exception whether probable cause relates to the entire car or only to the containerprobable cause to search container, then probable cause to search vehicle United States v. Di Re Passengers could not be searched without probable cause simply because the automobile was lawfully stopped by police Wyoming v. Houghton Police do not violate the Fourth Amendment when they search a passengers personal belongings (e.g., purse) inside an automobile that they have probable cause to believes contains contraband The police may search containers within the scope of the probable cause they have developed regardless of who owns those containers The Court stated that when there is probable cause to search for contraband in a car, it is reasonable for police officers to examine packages and containers without a showing of individualized probable cause for each one

SPECIAL NEEDS: Two part test: 1) The government purpose is regulatory rather than law enforcement, then 2) Balancing the reasonable of the regulatory interest against the individual interest State interest a. The weight of the states purported noncriminal interest i. the effectiveness of the chosen means in attaining the states goals ii. Availability of less intrusive alternative means Individual interests: b. In the persons home or car (less expectation of privacy) i. Lesser expectation of privacy in pervasively regulated industries

Camara v. Municipal Court A homeowner claimed Fourth Amendment protection against a warrantless inspection of his home by a health inspector acting pursuant to the San Francisco Housing Code.
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Downloaded From OutlineDepot.com The Court held that a warrant was needed, saying that even the most law abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority. Probable cause can be met if reasonable legislative or administrative standards for conducting an area inspection such as passage of time, nature of the building, and condition of the overall area were met, but individualized knowledge about the interior condition of a particular dwelling was not required.

New York v. Burger: Dual purpose: a search or seizure that seems to serve regulatory goals as well as the goals of criminal law enforcement. Where the primary purpose is regulatory, a dual purpose search or seizure will be treated as a special needs action The Court in this case upheld the validity of the search because it was taken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme.

DRUG TESTING Employment Skinner v. Railway Executives Ass. The Court upheld Federal Railroad Administration regulations requiring drug testing of railway workers involved in accidents National Treasury Employees Union v. Von Raab The Court upheld the United States Customs Service program requiring drug testing through urinalysis for customs workers upon their transfer or promotion to positions having a direct involvement in drug interdiction or requiring the carrying of firearms Chandler v. Miller The Court struck down a Georgia statute requiring the candidates for state office to pass a drug test The government failed to demonstrate a substantial need for suspicion less drug testing Education New Jersey v. T.L.O The Court held that school officials could search a students purse based on reasonable suspicion; there did not need to be a warrant or probable cause Students have reduced expectation of privacy Vernonia School District 47J v. Action Athlete drug testing Court said: okay Whether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individuals Fourth Amendment interests against its promotion of legitimate governmental interests Factors:
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Downloaded From OutlineDepot.com The nature of the privacy interest The character of the intrusion The nature and immediacy of the governmental concern Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls Competitive extra-curricular activities Court said: okay In the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable Engaging in a fact specific balancing of the intrusion on the childrens Fourth Amendment rights against the promotion of legitimate governmental interest. The Court found that 1) student privacy interests were limited in the context of extracurricular activities 2) the intrusion on those interest was negligible, and 3) the school districts interest was important

Safford Unified School District #1 v. Redding 14 year old; rumors of pills; planner had pills; nurse instructed to search individual; pulled out bra and panties Court said: not okay, but qualified immunity for school officials Probable cause for school searches = moderate chance of finding evidence of wrongdoing Not here: any indication of danger to the students from the power of the drugs or their quantity any reason to suppose that Savana was carrying pills in her underwear The search as actually conducted be reasonably related in scope to the circumstances which justified the interference in the first place The scope will be permissible when it is not excessively intrusive in light of the age and sex of the student and the nature of the infraction The Court held that the strip searching of 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 Fourth Amendment.

Hospitals Ferguson v. City of Charleston Tested urine of pregnant women; if positive for cocaine, then contacted law enforcement; some women were arrested Court said: not okay The Court held that the drug screening unconstitutional, holding that the urine testing constituted a search and declining to apply the special needs doctrine because the purpose was indistinguishable from the general public interest in crime control
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Downloaded From OutlineDepot.com BORDER CROSSING United States v. Flores-Montano Mexican border; station wagon; inspected gas tank; removed gas tank; found marijuana Court said: okay Searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border United States v. Martinez-Fuerte The operation of a fixed checkpoint need not be authorized in advance by a judicial warrant United States v. Ramsey Envelopes; Thailand to Washington, DC; customs agent suspected drugs; opened one and saw heroin Court said: okay Any of the officers or persons authorized to board or search vessels may search any trunk or envelope in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law United States v. Montoya-Hernandez Woman from Bogota; arrived in LA via airplane; customs agents questioned; failed to answer; female agent felt abdomen and saw underpants; held her; finally received warrant; transported to hospital; doctor pulled out cocaine balloon; passed 88 more Court said: okay The detention of a traveler at the border is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal Officials at the border must have a particularized and objective basis for suspecting the particular person of alimentary canal smuggling ROADBLOCKS/CHECKPOINTS Michigan Department of State Police v. Sitz Sobriety checkpoint Court said: okay Roadblocks are consistent with the Fourth Amendment if they are carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers The constitutionality of a seizure turns upon a weighing of: Brown v. Texas case the gravity of the public concerns served by the seizure the degree to which the seizure advances the public interest the severity of the interference with individual liberty

City of Indianapolis v. Edmond Checkpoint looking for drugs

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Downloaded From OutlineDepot.com Court said: not okay When law enforcement authorities pursue primarily general crime control purposes at checkpoints, stops can only be justified by some quantum of individualized suspicion Illinois v. Lidster Checkpoint; looking for hit and run driver; same time and place; questioning drivers for relevant information Court said: okay The roadblock survived the reasonableness balancing because the stop was tailored to serve a grave public concern (finding a killer) and whose primary purpose was other than the general interest in crime control SEARCHES Rule: An inventory search is one conducted by the police not for purpose of criminal investigation but rather 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 Also, inventories protect the safety of the police and the public by locating things in seized property that might pose danger to police or public by locating things in seized property that might pose a danger to police or the public. An inventory search may be justified only if the initial seizure of the property being inventoried was permissible. Administrative Search / Regulatory Search / Special Needs Search Based on something less than probable cause - not based on individual suspicion Search in compliance with routine inventory procedures, if the seizure is itself justified: Government interest The protection of the owners property while it remains in police custody The protection of the police against claims or disputes over lost or stolen property The protection of the police from potential danger Privacy interest of the individual South Dakota v. Opperman Parking violation; vehicle impounded; police took inventory, including glove compartment Court said: no fourth amendment violation The Court concluded that the search was permissible because it was effectuated: 1) pursuant to law impoundment 2) of a routine nature, following standard police procedures 3) for noninvestigative reasons, and not as a mere pretext concealing an investigatory police motive The requirement of standard departmental procedures meant that no significant discretion. Was placed in the hands of the individual officer. If property is lawfully in the possession of the police, they may inventory the contents to protect the owners property while it is in police possession
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Downloaded From OutlineDepot.com o Arkansas v. Sullivan An officer arrested Sullivan for speeding and windshield offenses (improperly shielded), as well as for failure to produce required paperwork and carrying a weapon (hatchet), and he conducted an inventory search of t he car, finding methamphetamine. An Arkansas trial court and supreme court held that the methamphetine should be suppressed because the arrest was merely a pretext motivated by a desire to search Sulivans care. The US Supreme Court overruled the Arkansas courts, emphazing that Sullivans claim focused on the officers motivation for the stop and arrest, the Court reiterated its position in Whren that subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis. Illinois v. Lafayette Defendant arrested for disturbing peace; had shoulder bag; police looked inside Court said: no fourth amendment violation It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures Opperman extended to the search of tiems found on an arrestee, specifically a shoulder bag carried by a man arrested for disturbing the peace and found to contain drugs. The Court rejected the argument that less instrusive alternatives, such as storing rather than searching the bag, could have been followed. o Colorado v. Bertine; While police thus need not follow the least restrictive alternative, there still must be some restrictions on their discretion These limits are quite broad The Court argued that the broad limits on police officers discretion were adequate, for nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria on the basis of something other than suspicion of criminal activity. o Florida v. Wells: There must be at least some restrictions on the exercise of police officer discretion. The Court unanimously rejected the states effort to apply the inventory search exception to open a locked suitcase where the FL highway Patrol had no policy at all concerning when to open closed containers. While some regulations were needed, those regulations could still vest officers with considerable discretion. CONSENT Analysis: 1. Consent must be voluntarily given a. Consent not viewed as a waiver 2. By someone with actual or apparent authority
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Downloaded From OutlineDepot.com 3. Search must be within the scope of consentdid it exceed the scope of consent granted 4. Was the consent withdrawn

WAS THE CONSENT VOLUNTARY? - To prove that consent was given voluntarily, the state must show that the consent was obtained without coercion, - Making this determination requires examining the totality of the circumstances, including the characteristics of the accused and the details of the police-citizen interaction Factors to consider (totality of the circumstances): Show of force, such as display of guns by the police Presence of officer, such as how many officers were present Repetitive request for consent, after first refusal Subjective evidence of the person who gave the consent o o o o o o youth of the accused lack of education or low intelligence lack of any advice to the accused of his constitutional rights whether the individual was in custody when consent was given use of physical punishment such as deprivation of food or sleep possible race

BALANCING: the states interest in investigating crime and the constitutionally protected individual interest from such investigative activity To prove that the consent was given voluntarily, the state must show that the consent was obtained without cor Schneckloth v. Bustamonte Voluntariness Test: Consent is not valid if it was the product of duress or coercion, express or implied The fact that the suspect was not informed of his right to refuse to consent did not invalidate the consent. - The suspects knowledge of the right to withhold consent, therefore, is not always determinative or even important. Schneckloth establishes that mere voluntariness requirement as the sole pre-condition to finding consent to search or seize. FACTS: Stopped vehicle; six passengers; one licensed; asked to search the trunk; passenger opened voluntarily Court said: okay Whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances Competing concerns: The legitimate need for such searches
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Downloaded From OutlineDepot.com Assuring the absence of coercion Consent is treated differently than other constitutional rights waivers (i.e., its not a waiver) Rather than analyze consent as a waiver, the Court turned to the voluntariness test. WAIVERrequire a knowing, voluntary, and intelligent relinquishment of rights..higher standard than voluntariness requirement (voluntariness is the current the law)

United States v. Lombardo: Court said that the inmate had consented to the recording by his use of the telephone because he had signed the form upon arrival at the prison..he waived his rights by signing the form

Ferguson case (maternity patients discussed in special needs) Waiver test used The majority suggested that the circumstances might require a knowing, intelligent, and voluntary waiver of rights (higher standard) as opposed to simple consent (which requires only voluntariness, that is, absence of coercion). Circumstances: when state employees undertake to obtain evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients hare fully informed about their constitutional rights, as standards of knowing waiver requireknowledge is needed.higher standard

Kaupp v. Texas The Court uses waiver language ( a reasonable person in Kaupps position would have understood that he was not free to leave) as it did in Fergusion. Higher standard than voluntariness Ohio v. Robinette The Court held that a person lawfully stopped by the police, but free to leave, does not need to be informed by the police of his or her ability to leave The Court concluded that Robinette was lawfully detained when he gave his consent the officers subjective intention not to issue a ticket was irrelevant under Whren probable cause to stop Robinette for speeding and the officer was objectively justified in asking Robinette to get out of the car A traffic stop can be followed by a lawful detainment.without giving warning that the driver can object United States v. Drayton Officers boarded a bus; looking for possible drugs; asked to search; Brown complied; found drugs in front pockets Court said: okay, under the totality of the circumstances analysis, bus passengers voluntarily consented to requests by police to search their bags and persons. The test for consent is whether it is voluntary under the totality of the circumstances Consent is different than genuinely appreciating options
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Downloaded From OutlineDepot.com The suspects knowledge of the right to withhold consent is not always determinative or even important. The Court confirmed its rejection of the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. The court repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning

Police deception: o Police deception is important also. The courts are likely to find the consent invalid if the police misrepresent their ability to make the search. For example, if officers falsely claim that they have a search warrant and the person submits on the basis of that authority, then the evidence obtained during the search will be suppressed. o One kind of deception that never invalidates consent involves undercover operations.

ACTUAL AUTHORITY Can a third party furnish consent for another person? Yes, if that third party has actual or apparent authority. Actual authority depends on whether the third party shares access to or control over the premises at issueJoint access and control. United States v. Matlock A woman sharing a bedroom with the defendant consented to a search of that room after the defendants arrest (defendant was absent) One occupant of a residence may give consent if the other is not present The Court held that the consent was valid under the doctrine of common authority. - That doctrine rests on mutual use of the property by persons generally having joint access or control for most purposes, so that is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Georgia v. Randolph Wife permission; Husband refused; police searched house; found drug stuff Court said: unconstitutional Rule: Where a co-tenant is present, vocal, and refusing to consent, police may still decide to enter, search, and seize incriminating evidence as against the consenting co-tenant, but not against the demurring one, over and above that individuals refusal to consent. A physically present inhabitants express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant Both parties present One consents, one refuses Police may not enter
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Downloaded From OutlineDepot.com NOTES: Landlord/Tenant relationship: the landlord cannot give consent to search, can only consent to search common areas. Condo: search of common areas only Children: the closer the child is to the age of maturity, the more likely the court is to presume the child understands the situation and to uphold the consent. Roommates: Depend on the degree of separation of the private area from the common area being search and any retaining of areas of exclusive personal control.

Consent Once Removed Doctrine This doctrine authorizes an undercover law enforcement officers/informant entrance into a house at the express invitation of an individual with authority to consent to the officers entry. Such consent allowed the undercover officer an ability to enter, establish probable cause to arrest or search, and summons other officers for assistance. The consent for the latter officers came, therefore, from the initial undercover officer, not the houses resident or owner, thus consent once removed.

APPARENT AUTHORITY Objective Test Illinois v. Rodriguez Apparent authority looks at the consent from the perspective of the objectively reasonable police officer. The pertinent question is: would a reasonable police officer under the circumstances have believed that the third party had actual authority to consent? If so, then the third-party consent is valid. If a reasonable officer would have realized that the third party lacked authority to consent, then a search based on that consent will be held invalid

Scope of Consent: Even if officers obtain a valid consent to search, they must conduct their search within the scope of the consent. This usually involves the intensity and duration of the search Where the scope of consent is disputed, the test is an objective one. what would the reasonable person have understood by the exchange between the officer and the suspect? United States v. Dichiarinte The defendant consented to a search of his house for narcotics, but the detectives opened files and read documents leading to charges of income tax evasion. The defendant had not consented to a search of the documents, and the document search had nothing to do with the narcotics search. While the detectives would have been permitted to flip through the files for hidden packages of drugs, they exceeded the scope of the defendants consent when they read the documents.

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Downloaded From OutlineDepot.com Withdrawing Consent: An individual may withdraw consent to search at any time. If an officer finds incriminating items before consent is withdrawn, the plain view doctrine permits its seizure, and any subsequent withdrawal of consent would be to no avail. Withdrawal cannot be used to create probable cause or reasonable suspicion

United States v. Carter Withdrawal of consent alone cannot be used to support a finding of reasonable suspicion

The Supreme Court has limited the exclusionary rule in two ways: 1) It has narrowed the reach of the fruit of the poisonous tree doctrine the doctrine under which courts exclude evidence indirectly discovered by means of a constitutional violation. Three limitations: a) Inevitable Discovery b) Independent Source c) Attenuation of the Taint 2) the Court has created several broad exceptions to the exclusionary rule itself.

Narrow the exclusionary rule by narrowing the reach of the fruit of the poisonous tree exception Suppress evidence that would have been obtained but for the violation Created broad exceptons

Pros and Cons Pros Prevent/deterring police misconduct No incentive to violate laws because they know it wont come in Cons Guilty people may go free Keeps jury from getting at the truth

EXCEPTIONS TO THE EXCLUSIONARY RULE.

(A) NARROWING THE FRUIT OF THE POISONOUS TREE DOCTRINE

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Downloaded From OutlineDepot.com INEVITABLE DISCOVERY Rationale: to deter police from violations of constitutional and statutory protections. Nix v. Williams Rule: If the prosecution can establish by preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means (here the volunteers search), then the deterrence rationale has so little basis that the evidence should be received But for test the prosecution is not to be put in a better or worse position that it would have been in if no illegality had transpired Balancing deterring illegal police activity versus the right to get this info to the jury Bad faith: police subjective intent does not matterthis would have put the police in a worse position than they would have been in if no unlawful conduct had transpired FACTS: Child abducted and murdered; found items & began search; Williams surrendered; detective interrogated without attorney present; Williams led investigators to the body Court said: body was inevitable discovery Inevitable Discovery Exception If the police can demonstrate that they inevitably would have discovered the evidence, even without a violation of the Fourth Amendment, the exclusionary rule does not apply and the evidence is admissible Analysis: Sixth Amendment violation which lead to Williams taking police to the body Exception to exclusionary rule evidence is admissible because would have found evidence Prosecution should not be better off (deterrent effect) and prosecution should not be worse off (rogue police)

INDEPENDENT SOURCE The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. o Allows the admission of evidence that has been found independent of the illegal means

When the challenged evidence has independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation because the police would have obtained that evidence if no misconduct had taken place. Segura v. United States FACTS: Broke into Seguras apartment; stayed 19 hours; other officers secured search warrant; obtain evidence, arrest Segura Court said: evidence admissible because second set of officers worked entirely separately from first set of officer
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Downloaded From OutlineDepot.com Court held that the evidence found for the first time during the execution of the warrant was admissible because it was discovered pursuant to an independent source unconnected with the invalid entry. Murray v. United States Police surveillance; forced entry - found marijuana; warrant was issued; lawfully entered - seized marijuana Court said: marijuana evidence could be from independent source; inference was not enough Independent Source Exception Even if police obtain evidence in violation of the Fourth Amendment, it is still admissible if it is also obtained through a source independent of the police misconduct and untainted by the illegal actions of the police The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation The exception applies also to evidence initially discovered during, or as a consequence of and unlawful search, but later obtained independently from activities untainted by the initial illegality. *****Thus, evidence that agents discovered before they obtained the search warrant would be admissible so long as the products of the illegal search were not used to obtain the warrant*****

INADEQUATE CAUSAL CONNECTION - ATTENUATION OF THE TAINT The fact that a piece of evidence would not have been found but for the violation is still admissible it is so attenuated from the constitutional violation that it is purged from the taint of the violation Evidence is admissible if the connection between the illegality and the discovery becomes so attenuated as to dissipate the illegal taint It is not a mere but-for test See rule below Brown v. Illinois Illegally entered defendants apartment; took him to station; two incriminating statements made Court said: Miranda warnings do not purge taint (not automatically, but considered) Whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint Analysis: Constitutional violation Look at evidence in question
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Downloaded From OutlineDepot.com Is it tainted by violation OR attenuated enough that it was distinguishable from the Constitutional violation The Court said: a piece of evidence that can be linked causally to the constitutional violation nevertheless may be admissible if that causal link is so attenuated that the deterrent purpose of the exclusionary rule would not be served by suppressing the evidence. The relevant factors in the attenuation analysis are: 1)Temporal proximity of the arrest and the confession 2) Any intervening events.eg voluntary confession 3) Purpose and flagrancy of the violation/official misconduct 4) Whether a Miranda warning was given..miranda warning in itself is not enough ***Did something happen to purge the illegal taint****** Note on Miranda warnings: Miranda warnings, alone and per se, cannot always break, for Fourth Amendment purposes, the casual connection between the illegality and the confession Where the original violation is a failure to render Miranda warnings, rather than a Fourth Amendment violation, does the later provision of Miranda warnings purge subsequent statements of the taint. The Court in Oregon v. Elstad, said yes.

Hudson v. Michigan Police had warrant; knock and announce violation Court said: violation of the knock and announce rule does not require as a remedy suppression of the seized evidence. court created rule to deter Fourth Amendment violations; knock and announce - no exclusionary rule The costs of the exclusionary rule outweigh its benefits The primary cost is allowing guilty people to go free Deterring police misconduct, the central benefit of the exclusionary rule, does not warrant its existence Civil suits for damages against the police who violate the Fourth Amendment are an adequate deterrent Increased professionalism of police forces makes the exclusionary rule unnecessary

Good faith Analysis: Rule 1. Objectively reasonable reliance by a reasonable evidence, warrant is properly executed, and particularize the place to be searched or the things to be seized
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Downloaded From OutlineDepot.com Rule 2: no subjectivity on behave of the officer Rule 3: would a reasonable well trained officer would know the warrant was invalid Rule 4: look to institutional good faith Rule 5: four instances where good faith cannot be found.see bottom of page 596

United States v. Leon Confidential informant of unproven reliability; drug sellers; police observed - people leaving with small packages, various visitors, flight to Miami; search warrant; invalid for some reason Court said: fourth amendment violation, but evidence not excluded Construction: The exclusionary rule is neither intended nor able to cure the invasion of the defendants rights which he has already suffered A judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved Good Faith Exception: Suppression of evidence obtained pursuant to a search warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule Where the officers conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way Case is about: whether or not the cost of excluding evidence outweighs the benefits of excluding evidence

Court looks at 2 separate matters: 1) Analysis of deterrent effects:- the majority believed no deterrent benefits could be achieved by applying the exclusionary rule in a good faith reliance situation. - Judiciary.have no stake in the outcome, so cannot be deter 2) Definition of good faithan objectively reasonable officer would have believed the warrant to be valid. Trial courts are to determined objective reasonable on a case by case basis by i) considering all of the facts and circumstances known to the individual officers involved in the case, and then ii) asking whether a reasonable officer, who possesses these facts and reasonable knowledge of what the law provides, would have relied on the warrant.

Herring v. United States

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Downloaded From OutlineDepot.com Gathered stuff from impound; officer asked about arrest warrants; none in county; contacted neighboring county; outstanding warrant in computer database; followed Herring; pulled over vehicle and arrested him; searched car incident to arrest; found meth and gun (he was a felon); warrant had been rescinded, but not removed from database Court said: fourth amendment violation, but evidence not excluded; attenuated Something more than simple negligence is needed before evidence can be excluded on the ground of apolice error. Instead, police must act with at least gross negligence, or as a result of the systematic negligence of their departments. Rule: Whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances Consider: knowledge experience When police mistakes are the result of negligence, rather than systematic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way Massachusetts v. Sheppard Pre-printed warrant; controlled substances, but murder investigation; judge promised change; he did not Court said: the evidence did not need to be excluded because the officers reasonably relied on the warrant The Exception for Violations of the Requirement for Knocking and Announcing Hudson v. Michigan The exclusionary rule does not apply if police violate the knock and announce requirement SUPPRESSION HEARINGS Franks v. Delaware There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof United States v. Matlock Judges can rely on hearsay evidence at suppression hearings

CRIMINAL CASE EXCEPTION The exclusionary rule applies only in criminal trials Even where the rule applies, it requires the suppression of evidence from the trial itself, but no more. Grand juries are permitted to examine evidence that was illegally obtained, and judges are permitted to consider illegally obtained evidence for sentencing purposes.

IMPEACHMENT EXCEPTION Within the criminal trial itself, evidence that was obtained through constitutional violations may be admitted for the limited purpose of impeaching a testifying defendant.
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Downloaded From OutlineDepot.com The impeachment exception has two important limitations 1. The impeachment must relate either to the defendants testimony on direct examination or to questions asked by the prosecutor on cross-examination that are reasonably suggested by the defendants testimony on direct examination. That is, the prosecution cannot manipulate cross examination in order to get inadmissible evidence before the jury. 2. The impeachment exception applies only to testifying defendants, other defense witnesses cannot be impeached with evidence suppressed by operation of the exclusionary rule.

FOURTH AMENDMENT REVIEW Fourth Amendment prohibits unreasonable searches and seizures Search or seizure is reasonable, then comports with Fourth Amendment Exceptions to warrant requirement: (do not violate Fourth Amendment) Reasonable Comports with Fourth Amendment

Fourth Amendment violation = excluded Narrowing doctrines: Independent source Inevitable discovery Attenuation of the taint

Exception to exclusionary rule: (violate Fourth Amendment) Good faith

CONFESSIONS/STATEMENTS

ANALYSIS: when there is a confession, analyze all 4 Whether a confession is admissible? 1) Was there an illegal search or seizure..fruit of 4 amendment violation 2) Whether the statement was voluntarily made under the 5 amendment Due Process? (Two ways under the 5 admendement: due process and self incrimination) 3) Was the person compelled to make the statement in violation of the 5 amendment self incrimination clause (Miranda) 4) Was the confession taken in violation against 6 amendment right to counsel?
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Four grounds to suppress confession under Constitution Fruit of Fourth Amendment violation..unreasonable searches and seizures Fifth Amendment due process clause violationvoluntariness of confessionwas the confession coerced? Fifth Amendment self-incrimination clause violation (Miranda)..compelled/compulsion of confession Sixth Amendment right to counsel violation
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Due Process vs. Self-incrimination Due Process Statements that are coerced (given involuntary); cannot be used in prosecutions case-in-chief or rebuttal Involuntary statements - cannot be used for impeachment Self-incrimination Statements violate the fifth amendment selfincrimination clause if it violate Miranda warning requirement (the statements were compelled. Statements can be used in prosecutions case-in-chief only if Mirandized; can be used in prosecutions rebuttal if not Mirandized Compelled statements - can be used for impeachment

Brown v. Mississippi Rule: Confessions gained involuntarily through means of coercion are inadmissible as violating the due process clause of the Fifth Amendment. Where a defendants statement is obtained by the police through means of coercion that renders it involuntary, due process clause of the Fifth Amendment requires the trial court to exclude the statement from the defendants criminal trial. Defendants hung and whipped until confessed The rack and torture chamber may not be substituted for the witness stand The use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process Confession are only admitted if it is voluntarily given The Court suggested that coerced statements may not be used for impeachment purposesnote that statements that violate Miranda, may, however, be used for impeachment purposes. Statements that are involuntary

3 Rationales for Excluding Coerced Statements under the Due Process Clause 1. Deters police misconduct 2. Voices societys disapproval for techniques so offensive to a civilized system of justice that they must be condemned 3. Protects the integrity of the courts from evidence that is revolting to the sense of justice.
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AMENDMENT DUE PROCESS ANALYSIS: STATE ACTOR REQUIRED Confessions are inadmissible only if they are a product of state conduct. Statements are not constitutionally excludable when obtained through private compulsion (See Connelly case below)
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Downloaded From OutlineDepot.com IS THE CONFESSION VOLUNTARY? The prosecution has the burden of proving voluntariness of a confession.

Colorado v. Connelly Mentally unstable individual; confessed to murder The defendant was compelled by command hallucinations and the voice of God to confess Court said: no due process violation Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law

VOLUNTARINESS STANDARD: The voluntariness standard requires a showing that under the totality of the circumstances, the defendants statement was a product of free will. The prosecution bears the burden of establishing voluntariness by a preponderance of the evidence. Under the totality of the circumstances, the court will look at 2 facts: o o 1) whether the police subjected the defendant to coercion, and 2) whether the coercion was sufficient to overcome the will of the accused.

TEST: Was the statement voluntary - totality of the circumstances.both subjective and objective factors 1. Was the police conduct coercive.objective 2. Was it coercive to the point that it overborne the will of the accused such that the statement was involuntary..subjective a. Coercion can be mental or physiological

GOALS OF THE SUBJECTIVE AND OBJECTIVE PRONGS Reducing the risk of unreliable confessions - Avoid force confessions Advancing Fairness Respecting Individual Dignity and Decency Enhancing Individual Trust of Government

TOTALITY TEST IN PRACTICE Use of Force and Fear The use or threatened use of force is highly determinative of involuntariness.

Arizona v. Fulminante Fulminante had been incarcerated in prison and was approached by an undercover informant who offered Fulminante protection if Fulminante told the truth about a rumor that he killed his step daughter. Fulminante then confessed.
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Downloaded From OutlineDepot.com Court said: confession was coerced Court held that Fulminantes confession was involuntary because there was a credible threat of physical violence such that Fulminante will was overborne in such a way as to render his confession the product of coercion. A finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient Mental Physical

Lengthy Interrogations and Deprivation of Bodily Needs Courts factor the length of the interrogation, and its conditions into the totality analysis

Use of Other Psychological Techniques 1) Pressure tactics: The use of psychological pressures, aside from lengthy interrogations and deprivation of bodily needs may render a confession involuntary. In determining whether such pressures overcame the defendants will, courts consider characteristics such as the defendants age, ability to understand, and psychological profile. Spano v. New York Fought and killed guy; surrendered; interrogated; refused to answer (advice of attorney); police tried all kinds of tactics; finally gave statement Court said: confession was coerced Defendants will was overborne by official pressure, fatigue, and sympathy falsely aroused after considering all the facts Persistence in the face of repeated refusals to answer Ignored reasonable requests to contact attorney

2)

Deception. In most jurisdictions, deception alone does not render a confession involuntary, but constitutes one factor among many to be considered within the totality of the circumstances. Leyra v. Denno 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.

3) Promises of Leniency Promises of leniency may also be considered in determining voluntariness. Lynumn v. Illinois
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Downloaded From OutlineDepot.com Lynumn denied and then admitted having sold marijuana. She stated that she believed that if she answered the questions as the officers wanted her to answer, she would not be prosecuted. In reviewing the totality of the circumstances, the Court held that Lynumns confession had been coerced. Depending on how they say it. Voluntariness Jackson Deno Hearing`` The prosecution bears the burden of establishing that a confession was voluntary by a preponderance of the evidence. The trial court makes the voluntariness determination outside the presence of the jury. If the judge finds the confession involuntary, then it must be excluded. The jury will not be permitted to hear of it unless it deliberations be tainted by such powerful evidence of guilt. (Jackson v. Denno) If the judge finds the confession voluntary, then the defendant must be permitted to attack its veracity in front of the jury by introducing the circumstances in which it was given

Torture: Substantive Due Process ( 42USC 1983 claims) Chavez v. Martinez Coerced statements that are not introduced at trial do violate constitutional rights (substantive due process) but only if the conduct producing them shocks the conscience.
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8 AMENDMENT BAN ON CRUEL AND UNUSUAL PUNISHMENT The 8 amendment protects against cruel and unusual punishment, but that right applies only to person actually convicted of a crime. Thus convicted persons who are tortured in prison may sue based on 8 amendment doctrines. These require the claimant to allege and prove the unnecessary and wanton infliction of pain.
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Exclusionary Rule and the Fruit of the Poisonous Tree Involuntary confessions are inadmissible for any purpose, including impeaching a defendant on the witness stand. Assuming the fruit of the poisonous tree doctrine applies, the admissibility of evidence discovered as a fruit of an involuntary confession would turn on the issues of independent source, inevitably discovery or attenuation of the taint.

CUSTODIAL INTERROGATIONS AND THE MIRANDA DOCTRINE

No person shall be compelled in any criminal case to be a witness against himself.

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Downloaded From OutlineDepot.com The privilege against self-incrimination protects individuals from making incriminating testimonial communications under compulsion by state federal actors (police officers, detectives, prosecuting attorneys) 5 amendment self-incrimination protection protects against compelled confession/testimony
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Four aspects of Miranda: 1. What constitutes custody? 2. Was there an interrogation? 3. What constitutes sufficient warningwhere the suspect sufficiently warned? 4. What constitutes a valid waiver of Miranda rights? Rights under Miranda: the person must be warned in clear and unequivocal terms 1. Right to remain silent 2. Anything he says can or will be used against him at trial 3. Right to counsel and right to have counsel present during interrogation 4. Informed that if he cant afford an attorney, one will be appointed

Class Notes: Court said Miranda is a constitutional provision not actually in the 5 amendment Miranda only applies to custodial interrogation, so an arrest alone does not require Miranda warning, only if interrogation happens Miranda establishes a blueprintbut left it up to the courts to fill in the gaps The only available remedy under Miranda is exclusion of the evidence (confession) Miranda is a blanket law, must given to everyone even if someone already knows his rightsthis also let the suspect know that the police knows the rights as well Purpose of Miranda? Provides procedure, and that the defendants understand these rights? In challenging whether a Miranda was given, did the defendant sign the statement?
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Miranda v. United States Defendant was questioned by police officers, detectives, or prosecuting attorney; cut off from the outside world Court said: compulsion discourages silence Miranda doctrine applies to a police dominated environment: Freedom of action is curtailed in any significant way The mere fact that someone is in custody and interrogated is compulsion Everyone is treated the same way, regardless of characteristics

Miranda is stated to ensure that statements are not compelled No custody and interrogation = Miranda does not apply

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Downloaded From OutlineDepot.com When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against selfincrimination is in jeopardy He must be warned prior to any questioning that: He has the right to remain silent Anything he says can be used against him in a court of law He has the right to the presence of an attorney (Miranda created Fifth Amendment right to counsel) If he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires The individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement Dickerson v. United States Robbery; federal court; police violated Miranda; statements were voluntary Court said: Miranda doctrine is a Constitutional requirement; not prophylactic The Court reaffirmed Miranda Stare decisis Miranda doctrine is widely practiced Congress only has authority to trump Supreme Court when using supervisory authority over federal courts, but Congress does not have authority to trump Supreme Court opinion Miranda was not decided according to supervisory authority Because state courts have followed the rule for two decades

CUSTODY:

Not in custody, then Miranda warnings are not required. Consider: 1) Police dominated area? 2) Freedom of movement restrained in some significant way? - Formal arrest = in custody - No Formal Arrest then TEST is an objective test how a reasonable man in the suspects position would have understood his situationis his freedom of movement restrained in some significant way? - The subjective views harbored by either the interrogating officers or the person being questioned in not relevantdoesnt matter what either was thinking at the time Stansbury v. California An officers subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody

Custody Definition: if freedom of movement is restrain in some significant way Beckwith v. United States
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Downloaded From OutlineDepot.com A special agent of the Internal Revenue Service, investigating potential criminal income tax violations, in an interview with a taxpayer, not in custody, is not required to give the warnings called for in Miranda Custody: if freedom of movement is restrain in some significant way

Traffic Stops: - Traffic stops is not custodystop is brief, in public (not police dominated environment)

Location: - Location is not determinative of custodyhowever, it will be relevant (Orozco v. Texas) - Although relevant, location is not determinative when deciding whether a person is in custody. - Questioning a suspect in the suspects own home might constitute custodial interrogation, whereas questioning in police headquarters might not, depending on the circumstances. Orozco v. Texas A person who has been arrested is in custody and Miranda warnings must be given, even if the questioning occurs in a persons home

Oregon v. Mathiason Suspect voluntarily responded to officers request to answer questions; told he was not under arrest; half-hour; able to leave without problem Court said: suspect not in custody; Miranda not required Police officers are not required to administer Miranda warnings to everyone whom they question; nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect Miranda warnings are required only where there has been such a restriction on a persons freedom as to render him in custody

Jailed Suspect: - Mathis v. United States: to be in custody requires a showing the questioning officer placed further limitations on the individuals freedom than were imposed by general prison condition. The test would be whether the officers conduct would cause a reasonable person to believe his freedom of movement had been further diminishedthat is, further restriction than been in custody beyond being in prison itself

Probation Officer: - Answering probation officers questions is not being in custody - Because reporting to a probation officer does not involve a formal arrest or significant restraint on freedom (Minnesota v. Murphy) Minnesota v. Murphy

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Downloaded From OutlineDepot.com Statements made in a meeting with a persons probation officer were not uttered in a custodial context and no Miranda warnings were required Because reporting to a probation officer does not involve a formal arrest or significant restraint on freedom

Age Yarborough v. Alvarado: age not relevant to custody inquiry Yarborough v. Alvarado Parents brought suspect to police station upon officers request; taken to room; parents in lobby; police persistently question Court said: whether in custody = objective standard Age not relevant to custody inquiryno significant restraint on freedom, so not in custody Is age a factor that should be considered? Court of Appeals - yes Age considered in voluntariness analysis

Supreme Court Majority - no - standard is objective and age is subjective; observable to world Dissent - yes - age becomes an objective factor when known to outside world; shoes of defendant/id?? Would reasonable person [general public] feel like their freedom of movement was significantly restricted?

Berkemer v. McCarty McCarty is driving; traffic violation; out of car; police question; answers; Miranda Court said: driver not in custody; custody more than seizure; arrest is custody; in between is debatable Traffic stop Seizure Reasonable person would not feel free to leave Reasonable persons freedom of movement is significantly restricted Because: 1) reasonable person knows a traffic stop is short in nature, and 2) traffic stop occurs in public where there are witnesses and police are deterred

Custody

INTERROGATION: Test (Rhode Island v. Innis): - Express question OR functional equivalent to express questioning (objective test) = if the officer should know that the words or actions are reasonably likely to elicit an incriminating response
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Downloaded From OutlineDepot.com - In determining whether the police should have known about the effects of their remarks, any knowledge the police may have had concerning the susceptibility of a defendant to a particular form of persuasion might be an important factor.

Rhode Island v. Innis Innis suspect in cab driver killing; Miranda rights; refused to speak without an attorney; officers and suspect in vehicle; officers have conversations about shotgun; Innis speaks; tells officer where shotgun is Court said: not interrogation The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent Any words of actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect (i.e., functional equivalent) Arizona v Mauro The Court applied a more narrow standard than Innis. Conversation between husband and wife was not interrogation because police did not talk The Court refused to find that interrogation occurred when police attended, and tape recorded a meeting between a woman and her husband, who had been taken into custody for suspicion of killing their son. The AZ Supreme court found that the officers were aware of a possibility that Mauro would incriminate himself during the meeting. According to the Court, a possibility does not indicate a sufficient likelihood of incrimination to satisfy the legal standard articulated in Innis.

Field Sobriety Test: Field sobriety test is frequently performed by officers to establish probable cause that the arrestee is under the influence When the officer explains to the arrestee how the test would be administered and the during this process the arrestee made incriminating statements, the Court held that these statements were admissible because the officer comments were not likely to be perceived as calling for any verbal response. However, the Court recognized that a request that the arrestee compute the date of his 4 birthday did constitute interrogation, rendering inadmissible the arrestees inept responses. THUS, No Miranda warning needed if only giving explanation BUT if asking questions that are like to elicit any incriminating responses (functional equivalent of question) then Miranda warning is required.
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Hiibel v. Sixth Judicial District

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Downloaded From OutlineDepot.com An officer arriving on a scene in response to a tip asked a man on the scene for identification. The man refused 11 requests by the officer seeking the mans name. After warning the man that he would be arrested if he continued his refusal, the officer arrested the man, later identified as Hiibel. The Court affirmed the conviction and concluded that Hiibels giving his name under these particular circumstances would not incriminate him because it would not furnish a link in the chain of evidence needed to prosecute him.

Illinois v. Perkins Suspect in custody; questioning by informant; suspect told information about murder Court said: not interrogation Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates Compelling = police dominated atmosphere Not present here

ADEQUACY OF WARNINGS - W HAT IS REQUIRED OF THE POLICE? The suspect must be informed in clear and unequivocal terms, his Miranda rights: Does not require perfection: As long as reasonable person would understand the language as conveying his Miranda rights Courts are lenientas long as the rights are conveyed, then no violation These warnings must be given to all suspects who are subjected to custodial interrogation even, judges, lawyers, and law students. California v. Prysock Reading of rights; juvenile; stated may have attorney, but not attorney may be present before and during questioning Court said: adequate warnings.the warnings had to be interpreted as a whole.. You have the right to have a lawyer appointed to represent you at no cost to yourself The Court said that taken together, the warnings conveyedhis right to have a lawyer appointed if he could not afford one prior to and during investigation. Duckworth v. Eagan Reading of rights, signing of waiver Court said: adequate warnings..as long as the rights are conveyed We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. The Court approved the warning, reasoning that if police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel.
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WAIVER A suspects statement, made during custodial interrogation, cannot be admitted without a showing that: Valid Miranda warnings were given Defendant waived Miranda rights in fact The waiver was effective.

The state has burden of proof that the defendant knowing and intelligently waived his privilege against selfincrimination and his right to retained and appoint counsel .... standard: preponderance of evidence

Johnson v. Zerbst An express statement that the individual is willing to make a statement and does not want an attorney, followed closely by a statement could constitute a waiver. A valid waiver will not be presumed simply from the silence of the accused after warnings were given The record must show that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. Lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights Any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. Waiver in Fact A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. Thus, an express verbal waiver is not always required. North Carolina v. Butler..waiver in fact Issue: what amounts to a knowing, intelligent waiver Eleventh grade education; literal; read Advice of Rights form; will talk, but will not sign; did not request counsel Court said: no waiver Mere silence is not enough The courts must presume that a defendant did not waive his rights; the prosecutions burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated

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Downloaded From OutlineDepot.com Effective Waiver 1) Voluntary Waiver This is similar to voluntariness in confession cases: considering the totality of the circumstances, the court must find that the waiver was a product of free and deliberate choice. Certain facts may be especially important to the issue of the voluntariness of the waiver. For example, a long period of time between the rendering of Miranda warnings and the waiver might suggest that the waiver was derived by overcoming the suspects will to invoke his Miranda rights.

2) Knowing and Intelligent Courts must decide this issue based on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. The court do not look only on what was said

Invocation of Miranda Rights and its Consequences: o o o o A suspect who says I hereby invoke my right to remain silent, has effectively invoked that right. A suspect who says I announce that I will not answer questions without counsel present, has successfully invoked the Miranda right to counsel. However, a suspect who says nothing literally- has not invoked his or her Miranda rights. A defendant who makes an ambiguous statement has the burden of clarity,

Davis v. United States Issue: Was statement a request for attorney? Valid waiver; half-way through questioning; Maybe I should talk to a lawyer Court said: no constitutional violation The suspect must unambiguously request counsel He must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement as a request for an attorney

Would likely apply to someone would wants to stop talking mid-stream (ambiguous) Right to Remain Silent.is based on the incidentit is offense specific o If a suspect invokes his Miranda rights but later makes incriminating statements, the admissibility of those statements depends on several factors including o The specific right that the suspect invoke The conduct of the police Whether the incriminating statements concern the offense for which the suspect invoked his right. The right to remain silent is offense specific so
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Downloaded From OutlineDepot.com o Rule: even after a defendant invoked his right to remain silent, police may question him with respect to another offence, provided that they scrupulously honor his original decision to remain silent. o How to invoke ones right to remain silent.see above, one has to unambiguously invoke this right (tell the police that I want to invoke my right to remain silent)

Michigan v. Mosley Questioned about burglary; break; another officer gave Miranda rights and questioned about murder Court said: no violation When the police want to talk to someone who has invoked their right to remain silent: Scrupulously honored Time passed New set of police officers New set of Miranda rights given New issue

To invoke your right to remain silent, you must have to revoke it. Right to Counsel custody specific o o o All government questioning must cease once a suspect exercises the Miranda right to consult with an attorney. (Edwards v. AZ) This right is custody specific and extends throughout the entire incident of custody until the suspect is released. Thus, an accused having expressed his desire to deal with the 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.

Edwards v. Arizona Suspect talked; asked for attorney; next day, police questioned again Court said: constitutional violation When the police want to talk to someone who has invoked their right to obtain counsel: the police can only do so when: Counsel is available OR Defendant initiates

Minnick v. Mississippi Suspect requests attorney; speaks to attorney; they police question him again Court said: constitutional violation
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Downloaded From OutlineDepot.com When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney Not enough to provide an attorney; attorney must be there throughout the conversation

Resumption of Questioning When a defendants statements or inquiries can reasonably be interpreted as evincing a willingness and a desire for a generalized discussion about the investigation at hand, an officer may reinitiate questioning..after giving Miranda warnings again Oregon v. Bradshaw Hey whats going to happen to me now? Issue: Is this initiation? YES, anything that constitutes, I want to talk about the case If person invokes a right, then decides to talk/waive right, police need to read rights and obtain waiver before beginning questioning

Maryland v. Shatzer o Issue: whether the return of an incarcerated suspect to the general prison population qualifies as a break in Miranda custody that ends the Edwards presumption of involuntariness. o o The Court stated that the inherently compelling pressures of custodial interrogation ended when Shatzer returned to his normal like in jail. Rule: The Court stated: 14 days is enough to dissipate custodial interrogations coercive effects and provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody. o After 14 days, there is a break in custody and then questioning of the suspect can continue.

SCOPE OF THE MIRANDA EXCLUSIONARY RULE: FRUIT OF THE POISONOUS TREE Oregon v. Elstad Statement #1 - Yes, I was there. - living room; no Miranda; Statement #2 - detailed statement - police station; Miranda Issue: does un-Mirandized first statement taint Mirandized second statement? Court said: statement not excluded; Miranda warnings effective (not fruits analysis)

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Downloaded From OutlineDepot.com Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement United States v. Patane Statement #1 - Gun is there. - no Miranda; Statement #2 - locate gun Issue: is the gun excluded? Court said: gun admissible Self-incrimination clause / Constitutional violation = triggered when evidence is used against you at trial Statements that violate Miranda (unwarned confession) cannot come in, however, physical evidence comes in Thus, non-testimonial physical evidence is not excluded because of a violation of Miranda, that is, physical evidence obtained from an unwarned confession(not Mirandized) need not be excluded.

Missouri v. Seibert *** Police questioned suspect; read Miranda rights; police questioned suspect using information from preliminary interrogation Issue: is the repeated statement admissible? Court said: statement excluded; initial questioning made Miranda warnings ineffective (i.e., they did not eliminate the compulsion) Consider factors: The completeness and detail of the questions and answers in the first round of interrogation The overlapping content of the two statements The timing and setting of the first and the second The continuity of police personnel The degree to which the interrogators questions treated the second round as continuous with the first Distinguishable from Elstad Intent: The police had a policy to engage in this behavior Getting the suspect to confess when they likely would not have confessed if rights were made known Event of the first encounter left the individual feeling like they were compelled
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Downloaded From OutlineDepot.com Fruits analysis does not apply to Miranda (i.e, the exclusionary rule does not apply to an un-Mirandized statement) Procedure question first technique

IMPEACHMENT Statements obtained in violation of Miranda may be used for the purposes of impeaching the defendants trial testimony, (if the defendant chooses to testify at trial) Doyle v. Ohio Defendants invocation of the Miranda right to remain silent used by prosecution for impeachment: Invocation made before Miranda warning is given..can be used Invocation made after Miranda warning given .cannot be used

EXCEPTIONS TO MIRANDA PUBLIC SAFETY AND ROUTINE BOOKING EMERGENCIES PUBLIC SAFETY EXCEPTION New York v. Quarles - Statements obtained by police from suspects during emergency situations could be used against a criminal defendant even if Miranda warnings were not properly administered - Public safety exception State v. Finch - hostage situation creates public safety issues - so statement made during the hostage negotiation gets to come in an objectively reasonable need to uphold public safety

BOOKING EXCEPTION - ROUTINE BOOKING EXCEPTION This exception permits officers to ask general biographical questions during booking or pretrial services without first giving Miranda warnings. TEST: Reasonable related to police administrative purposes, such as, asking for information about name, address, weight, color of eyes, date of birth, age. Pennsylvania v, Muniz The police can ask a person questions when taking a person into custody that are needed in the booking process, such as name, address, date of birth, height, and weight.

UNDER COVER ACTIVITIES: Illinois v. Perkins: o Is Miranda violated when a suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement?

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Downloaded From OutlineDepot.com o The Court held that there was no Miranda violation in these circumstances, explaining that conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. o Those concerns relate to the inherently compelling pressures generated by a police dominated atmosphere. If a suspect does not know that he is in the presence of police, those pressures are absent.
NOT POLICE DOMINATED AREA NO PRESSURE FOR COMPELLED SPEECH

THE SIXTH AMENDMENT RIGHT TO COUNSEL DURING INTERROGATIONS - the accused shall enjoy the right to the assistant of counsel for his defense, once formal judicial proceedings have begun and initiated by the prosecution by way of formal charge - Ensuring counsel at trial

Right to Counsel Distinctions: 5th Amendment Custody specific Any offense or topic Anytime 6th Amendment Deliberately elicited Offense Specific - custody not required Adversarial process - commitment to prosecutee.g. arraignment, indictment, Not just arrest only The accused dont need to be in custody

Massiah v. United States This case occurred before the Miranda case Narcotics activities; Colson cooperates with police investigation; a radio transmitter is installed in seat; agent hears conversation with Massiah Court said: evidence not admissible - Sixth Amendment violation From the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation are vitally important, the defendants are as much entitled to such aid of counsel during that period as the trial itself Sixth Amendment guarantees right to a fair trial - right to counsel enables this right Balances the government and defendant Police could have done same actions, but just not introduced the evidence during the trial
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Downloaded From OutlineDepot.com Sixth Amendment violations occur at trial Can have Fifth and Sixth Amendment violations at the same time (usually post-charges) Rule: any uncounseled statement, deliberately elicited, after indictment, must be excluded from trial.

The Requirement of a Formal Charge: The Sixth amendment right to counsel is triggered by the initiation of adversary judicial criminal proceedings whether by formal charge (an arrest by itself is not a formal charge) - preliminary hearing, indictment, information, or arraignment. (Massiah) At the point when the state has fully committed all its resources to prosecution, thus immersing the suspect in the intricacies of substantive and procedural criminal law.

Deliberate Elicitation: The Massiah doctrine (right to counsel) comes into play only where law enforcement personnel have deliberately elicited incriminating statements. An officer may be found to have deliberately elicited incriminating statements directly by engaging the defendant in conversation about the charged conduct, or indirectly, by knowingly exploiting an opportunity to confront an accused without an attorney present.

Brewer v. Williams Attorney in Des Moines and attorney in Davenport; police told not to interrogate; abductor told not to respond; Christian burial speech Court said: evidence not admissible - Sixth Amendment violation The Court held that his statements were inadmissible because they had been deliberately elicited n the absence of his attorney and after the initiation of the criminal proceedings. A person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment

Fellers v. United States The Supreme Court held that officers who arrived at Fellers home with an arrest warrant and an indictment, and who informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators, had deliberately elicited his statements and thus implicated his Sixth Amendment rights. Fellers statements, which were made outside the presence of counsel and without a waiver of his rights, could not be admitted. Arrest warrant alone would not implicate the sixth amendment.

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Downloaded From OutlineDepot.com United States v. Henry Police informant (paid); same cell block; Henry confessed Court said: Sixth Amendment violation, deliberate elicitation Informant was active participant engage conversations

Kuhlmann v. Wilson Police informant (paid) to just listen (listening post) not soliciting; same cell; Wilson confessed Court said: no Sixth Amendment violation; not deliberate elicitation Since the Sixth Amendment is not violated whenever the State obtains incriminating statements from the accused after the right to counsel has attached, a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police The defendant must demonstrate that the police and their informant took some action, beyond mere listening, that was designed deliberately to elicit incriminating remarks Maine v. Moulton The Court explained that knowing exploitation (even if the officers did not intentionally create the situation) by the State of an opportunity to confront the accused without counsel being present is as much a breach of the states obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. The Sixth Amendment is violated when the state obtains incriminating statements by knowingly circumventing the accuseds right to have counsel present in a confrontation between the accused and a state agent, and any statements acquired in such a manner may not be admitted at a trial of the accused.

INVOKING AND W AIVING SIXTH AMENDMENT RIGHTS

Once a defendant has been formally charged, his Sixth Amendment right to counsel attaches. Nevertheless, it must be invoked before it is fully effective. After the right attaches, but before it is invoked, the right may be waived by the defendant. Invoking right to counsel, unambiguous, as in Miranda. Once right has been invoked, cant question without attorney. The government bears burden of proof on waiver and it must demonstrate that the defendants waiver of the right to counsel was voluntary and knowingly and intelligent. (this mirrors Miranda waiver)preponderance of evidence standard.

Iowa v. Tovar o The Supreme Court emphasized that the extent of warnings required by the Sixth Amendment varies according to context.

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Downloaded From OutlineDepot.com o At early stages of a criminal case, the full dangers and disadvantages of self-representation are less substantial and more obvious to an accused than they are at trial. At later stages, a more extensive set of warnings and waivers might be required. Michigan v. Jackson..overruled! Before arraignment - six statements; requested counsel; after arraignment - one statement Court said: confession not admissible If police initiate interrogation after a defendants assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendants right to counsel for that police-initiated interrogation is invalid No more questions after defendant request an attorney unless defendant initiates further communication. Montejo v. Louisiana Waived rights; confessed; preliminary hearing (72 hour) formal charge; judge ordered a public defender; interrogation about guns whereabouts; wrote apology letter; afterward met with attorney Court said: Jackson is overruled; remanded to raise rule of Edwards Self-incrimination Custody and interrogation read rights assert 5th right to counsel No initiation as long as custody Sixth Amendment Right attaches police can always approach and initiate but still need waiver Valid Miranda waiver will cover Sixth Amendment waiver

OFFENSE SPECIFIC The Massiahs right (right to counsel) attaches only when a defendant is formally charged with a crime, it is offense specific, and it covers only communications about that particular crime McNeil v. Wisconsin McNeil was arrested for an armed robbery at location A and invoked his right to remain silent. Two days later, officers approached McNeil in order to question him about a robbery at location B and read him his Miranda rights. He signed a waiver, agreed to talk, and made incriminating statements. The Court said that McNeils Sixth Amendment right to counsel had attached with regards to the robbery at location A. That right is offense specific and as of the time of the incriminating statements, it had not attached to the robbery at location B because formal charges were not brought until the following day. Thus, McNeils Sixth Amendment right to counsel did not keep out the statements regarding the robbery at location B because he did not invoke that right to counsel.
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Downloaded From OutlineDepot.com Texas v. Cobb.same/similar offense Indicted for burglary; free on bond; questioned about and confessed to murdering a mother and daughter Court said: confession was admissible - Because the defendant Cobb had not been charged with murder, and because murder is not the same offense as burglary for double jeopardy purposes, the questioning did not violate Massiah and the confession was admissible. - Test: the Court clarified that by offense it meant that the charged offense plus any other crimes that would be considered the same offense for double jeopardy purposes including, lesser included offenses. Test: Double jeopardy look at elements, are they the same or similar Whether each provision requires proof of a fact which the other does not Elements analysis - compare the two charges Different elements = not the same (i.e., not double jeopardy)

SCOPE OF THE SIXTH AMENDEMNT EXCLUSIONARY RULE: Confessions and statements obtained in violation of a defendants Sixth Amendment right to counsel are inadmissible under the Massiah doctrine. The rule excludes only those statements relating to an offense for which the adversarial process has been initiated. Accordingly, incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses. Rule: the fruit of the poisonous tree doctrine excludes evidence discovered as a result of Sixth Amendment violations, and the traditional limitations on that doctrine inevitable discovery, independent source, and attenuation of the taint- apply.

Brewer v. Williams Williams sought to exclude the body of the murdered girl on the ground that it was the fruit of the incriminating statements deliberately elicited in the absence of counsel after the initiation of the adversarial process. While the Court refused to exclude the body from evidence because there was evidence that it would have been inevitably discovered.

Fellers v. United States o The Court held that Fellers Sixth Amendment rights were violated when the trial court admitted statements he made to police who came to his home to arrest him and who told him, without giving him Miranda rights, that they were there to discuss his involvement in drug crimes.

Kansas v. Ventris..impeachment

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Downloaded From OutlineDepot.com Police informant; same holding cell; Ventris confessed; Ventris lied on stand; prosecution introduced evidence of holding cell confession to impeach Court said: violation has occurred; but confession admissible for impeachment purposes Rule: the Court held that although a statement obtained in violation of the Sixth Amendment could not be used in the prosecutions case-in-chief, it could be used to impeach the defendant should he testify inconsistently at trial. The Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation (prophylactic) Tainted evidence - evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid - is admissible for impeachment Interests - high - preventing perjury Deterrence - low - police misconduct

IDENTIFICATION PROCEDURES

THE RIGHT TO COUNSEL Suppressing Eyewitness Identifications Due Process - 14 unnecessarily suggestive - based on the totality of the circumstances was the procedure so unnecessary suggestive as to create a very substantial likelihood of (irreparable) misidentification. Right to Counsel - 6 violated right to counsel But what about in court identification is the in court identification now tainted by the out of court identification The burden is on the state to prove that it is not tainted Limitations: Timing only after adversarial procedures have begun Types of proceedings dont apply to photospread
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Out of court ID Lineup Showup Photospread In court ID Suggestions for changes that have been shown to reduce the number of misidentifications: 1. Sequential viewing or showing the witness only one possible suspect at a time. 2. Double blind testing which means simply that the person administering the line up doesnt know who the real suspect is.
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THE RIGHT TO COUNSEL IN LINEUPS United States v. Wade Bank robber; appointed counsel; lineup conducted without notifying counsel; conducted in courtroom; prior to trial Court said: vacated the conviction 5th Amendment privilege against self-incrimination Only applies to testimonial statements NOT identifying physical characteristics (e.g., appearance, voice) 6th Amendment right to counsel Counsel is required for lineups (critical stage) Concerned with suggestivity (physical characteristics of lineup participants, body language or facial expressions of police officers) Important confrontation takes place before trial Affords attorney information necessary to recreate the scene and identify a theory (rather than relying on cross-examination of witness) Counsel not required for forensic evidence analysis (not critical stage) Constitutional violation occurred is in court id a result of original id or purged of taint? Whether, granting establishment of the primary illegality, the evidence of which instant objection (in court id) is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint Factors to consider: Analysis: 6th Amendment right to counsel Right to counsel must attach Critical stage Lineups NOT photospreads The prior opportunity to observe the alleged criminal act The existence of any discrepancy between any pre-lineup description and the defendants actual description Any identification prior to lineup of another person The identification by picture of the defendant prior to the lineup Failure to identify the defendant on a prior occasion The lapse of time between the alleged act and the lineup identification Otherwise its suppressed

Burden on state - clear and convincing evidence - in court id independent of lineup

LIMITS ON THE RIGHT TO COUNSEL IN IDENTIFICATION PROCEDURES Illinois v. Kirby

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Downloaded From OutlineDepot.com Shard robbed; petitioner found with Shards identification; arrested and taken to station; Shard arrived and identified petitioner Wade-Gilbert Rule A post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution Police conduct of such a lineup without notice to and in the absence of his counsel denied the accused his Sixth and Fourteenth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the line-up No in-court identifications are admissible in evidence of their source is a lineup conducted in violation of this constitutional standard Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accuseds constitutional right to the presence of his counsel at the critical lineup Court said: will not extend rule to routine police investigations United States v. Ash Armed bank robbery; government informant alerted authorities; FBI show photos to four witnesses; identified Ash as robber; Ash arrested by police; before trial, prosecutor showed witness photo lineup again Court said: counsel unnecessary in photo lineup (even after adversarial proceedings) The Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender Accused is not present Bring the photos to court Risk of suggestivity not great Prosecution must present case without the defense DUE PROCESS PROTECTION FOR IDENTIFICATION PROCEDURES UNNECESSARILY SUGGESTIVE IDENTIFICATION PROCEDURES VIOLATE DUE PROCESS Foster v. California Armed bank robbery; Lineup #1 - only tall man wearing leather jacket; one-to-one confrontation; Lineup #2 - only man from first lineup; positive identification only after second lineup (only Supreme Court ruling of unnecessarily suggestive id) Court said: unfair lineup procedures 14th Amendment Due Process Clause Out of court id Must suppress out of court id that, based on totality of circumstances, was so unnecessarily suggestive as to create a very substantial likelihood of mis-id Stovall v. Denno - necessary - witness on deathbed, could not get her to prison
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Downloaded From OutlineDepot.com In court id Must suppress in court id that, based on totality of circumstances, was so unnecessarily suggestive as to create a substantial likelihood of irreparable mis-id (more lenient) Reliability is the linchpin LIMITS ON THE ABILITY OF COURTS TO FIND THAT IDENTIFICATION PROCEDURES VIOLATE DUE PROCESS Simmons v. United States Armed bank robbery; police obtained photos; showed to five witnesses who all identified Simmons Court said: procedures were necessary; no Due Process violation Each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irrefutable misidentification Neil v. Biggers Rape; light from doorway and moon; detailed description; lineups, showups, photos resulted in no identifications, police discovered suspect; showup resulted in positive identification Court said: procedures were reliable; no Due Process violation The factors to be considered in evaluating the likelihood of misidentification include: The opportunity of the witness to view the criminal at the time of the crime The witness degree of attention The accuracy of the witness prior description of the criminal The level of certainty demonstrated by the witness at the confrontation The length of time between the crime and the confrontation The corrupting effect of the suggestive id In court and out of court Manson v. Braithwaite

Trooper and informant; drug sale; trooper sees dealer; returns to station; provides detailed description; officer leaves photo; trooper positively identifies dealer; arrest Court said: procedures were reliable; no Due Process violation Reliability is the linchpin in determining the admissibility of identification testimony Apply Biggers factors

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