Criminal Procedure I

May 27, 2016 | Author: lcahern | Category: Types, School Work
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Outline for Criminal Procedure I Course...



I. INTRODUCTION There are 3 ways that a criminal case can get to the Supreme Court: 1. Direct Appeal from State Court 2. Direct Appeal from Federal Court 3. Habeas Corpus appeal (prisoner v. warden/guards)   

Incorporation A constitutionally based decision that binds both State and Federal government, usually through the 14th Amendment 14th Amendment- prevents the deprivation of life, liberty, and property without due process of law Selective Incorporation- judges look to see if a right is fundamental to the American system of justice. If it is, it’s incorporated through the 14th Amendment and applies to the States

Hurtado v. California (p. #) FACTS: California allowed criminal defendants to face trial without being indicted by a grand jury. Defendant claimed that this violated his rights. HOLDING: California’s practice did not violate the Constitution because the state gave the defendant notice through another method (informations). RULE: Defendants are not entitled to a Grand Jury indictment in State criminal proceedings. Palko v. Connecticut (p. #) FACTS: Connecticut state law allowed prosecutors to retry a defendant after the prosecutor won an appeal saying that the defendant could be retried. Defendant claimed it was unconstitutional for him to be retried again. HOLDING: Connecticut State law did not violate the Constitution REASONING: Cardozo says the Court should look to see if the right is “implicit in the concept of ordered liberty.” The Court would have to agree that ordered liberty implies that a defendant cannot be tried twice. The Federal system follows a Double Jeopardy rule, but the Court found that the Connecticut state law was constitutional. The prosecutor could only retry the defendant after they won an appeal proving that there was some justification for trying the defendant again.  Palko has been overturned. States can no longer retry a defendant. The main thing to take away from Palko is Cardozo’s “implicit in the concept of ordered liberty” idea.

Duncan v. Louisiana (p. #)

FACTS: Duncan was charged with simple battery, which is a misdemeanor under Louisiana state law and punishable by a maximum of two years imprisonment and a fine. Duncan’s request for a jury trial was denied because under Louisiana law, jury trials are only granted in cases which capital punishment or hard labor imprisonment may be imposed. Duncan was convicted and appealed. Court of Appeals found no error. ISSUE: Does the 6th Amendment right to a jury trial apply to states through the incorporation of the 14th Amendment? HOLDING: Yes. The Louisiana law prohibiting jury trials for non-felonies violated the 14th Amendment. RULE: The right to a trial by jury applies to all criminal defendants in state proceedings through the 14th Amendment. JUSTICE WHITE (Majority)- argued that all states use jury trials. This demonstrates that states have developed a reliance on jury trials and it therefore must be a right to have a trial by jury. White’s view is today’s dominant view. Only wants to incorporate those rights that are fundamental to the system of justice, but thought that the 6th Amendment fell into that category. JUSTICE HARLAN (Dissent)- looks at the process by which the defendant was convicted and looks to see if it is fair and in accord with the concept of liberty. Said that a jury trial isn’t implicit and that Duncan wasn’t entitled to a jury trial because he was still convicted through a fair process. The Prominence of Incorporation Only two rights have yet to be incorporated: 1. Right to a grand jury indictment before a criminal prosecution (Hurtado). California still does not use a grand jury to indict defendants. 2. Bail Clause of the 8th Amendment- which states that defendants have a right to be considered for bail. However, this may not be incorporated due to the fact that every state already allows. The Supreme Court can only decide if this right is so fundamental that it must apply to the states via incorporation if a state stops allowing bail and a defendant claims it violated his rights. Retroactivity When the Supreme Court makes a decision it obviously binds future similar cases. But, should the decision apply to cases that occurred before the date of the decision? The question of retroactive application is one of competing interests and policies. The Court always gives the benefit of the new rule to the litigant who establishes it, even though that constitutes retroactive application. This is allowed for two reasons: 1. It’s unfair to a defendant to not get the benefit of a rule that another defendant in a similar case gets. 2. To assure that there is a concrete case or controversy before the Court.


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The 4th Amendment prohibits unreasonable searches and seizures. If government conduct does not constitute a search or a seizure, the 4th Amendment doesn’t apply and the conduct doesn’t have to be considered “reasonable.”

Katz v. United States (p. #) FACTS: Defendant was convicted of transferring wagering information by telephone from Los Angeles to Miami and Boston in violation of a Federal statute. Federal Agents attached an electronic listening device to the outside of the public telephone booth that defendant made his calls from. ISSUES: 1) Does the defendant have a reasonable expectation of privacy in a public telephone booth? 2) Is the 4th Amendment limited to the search of tangible property? 3) Does the 4th Amendment only apply to physical intrusion? 4) Should the Federal agents have obtained a warrant? HOLDINGS: 1) A person has a reasonable expectation of privacy in a telephone booth. They pay a fee and close the door. 2) The Court held in Silverman that the 4th Amendment “governs not only the seizure of tangible items, but extends to the recording of oral statements, overheard without any technical trespass under local property law.” 3) Same as #2. 4) The government should have obtained a warrant. Allowing the government to proceed without the approval of a neutral and detached magistrate would “bypass the safeguards provided by an objective predetermination of probable.” RULE: A “search” can include searches of intangible items, such as conversations. No physical intrusion is required. TWO PRONG TEST: To see if government conduct constitutes a search: 1. The government conduct must offend the citizens subjective manifestation of a privacy interest 2. The privacy interest that was invaded must be one that society is prepared to accept as reasonable or legitimate (objective standard) Hypo Katz is walking on the street and sees a man installing something on the top of the public telephone booth, and asks what it is. He is told that it’s a listening device. Katz uses the phone half an hour later. Use the two prong test to analyze  Subjective prong- Would Katz still have an expectation of privacy? o No. He was told that a listening device was placed there. Half an hour later, he wouldn’t expect that the device would be removed.  What if Katz said he thought the man would have turned off the listening device for him? Use the objective prong. o No. Most people wouldn’t reasonably expect a phone booth that just had a listening device installed to be turned off simply because Katz asked the man what it was. Most people would expect the risk that their conversation wouldn’t be private.


Notions of Privacy  What makes an expectation of privacy “reasonable?” o Empirical notions of privacy- what do most people think is the norm?  California v. Greenwood- society doesn’t expect garbage to be private o Normative notions of privacy- what should people expect regarding privacy? The caution about normative notions of privacy is that if people don’t expect any privacy, people won’t give them any! Applications of the Katz Principle 1. Subjective Manifestation- individuals must take affirmative steps to protect their privacy interests; otherwise, government conduct may not constitute a search due to the individual’s failure to satisfy the “subjective manifestation” requirement of Katz. 1. Abandoned Property- police detention and investigation of abandoned property usually does not trigger 4th Amendment protection. Many cases hold that the abandonment of property is inconsistent with the retention of any subjective privacy interest. “Whether abandonment has occurred is a question of intent that may be inferred from acts, words, and other objective facts.” a. United States v. Hoey- police entered an apartment where Hoey had lived and obtained evidence that was used to convict her. The Court held that the police activity did not constitute a search because Hoey had abandoned her apartment; she had not paid rent for six weeks, held a moving sale, and had left the apartment two days before the police entry and had not returned. b. Smith v. Ohio- defendant was carrying a brown paper bag when he was approached by two undercover police officers. When the officers identified themselves, defendant threw the bag. Officers tried to grab it and defendant went after it. Court held that defendant did not abandon the bag through his act of throwing the bag after the officer’s inquiry. c. Abandonment of property often found when a person denies ownership i. United States v. McDonald- police found contraband in a bag in an overhead bin and asked who it belonged to. Court held that defendant abandoned the bag by not coming forward and claiming it. 2. Open Fields- are not in the protection of the 4th Amendment. A. Oliver v. United States- Officers drove past Oliver’s house to a locked gate with a “No Trespassing” sign. They walked around a footpath. They followed the path for several hundred yards; the path led to a field of marijuana on the property, which was about one mile from Oliver’s home. Court held that open fields are not within the scope of the 4th Amendment; individuals may not legitimately demand privacy for activities conducted outdoors in fields, except in the area immediately surrounding the home. See pages 44-45 for additional statements. B. United States v. Dunn- Court held that a barn located approximately 50 yards from the fence surrounding a residence on almost 200 acres of property was outside the curtilage of the home; therefore, police intrusion into that area did not constitute a search. C. Curtilage should be determined based upon four factors: 4

1. the proximity of the area claimed to be curtilage to the home 2. whether the area is included within an enclosure surrounding the home 3. the nature of the uses to which the area is put 4. the steps taken by the resident to protect the area from observation from people passing by D. United States v. Hatfield- even if property is within curtilage, a visual inspection of the property from outside the curtilage does not constitute a search 3. Access by Members of the Public- if an aspect of a persons life is subject to scrutiny by other members of society, that person has no legitimate expectation in denying equivalent access to police. There is no search if the police obtain information that members of the public could obtain A. United States v. White- audio surveillance. Authorities can use the testimony of those associates who have turned to the police; one contemplating illegal activity must realize and risk that his companions may be reporting to the police. Dissent said that the “assumption of risk” principle shouldn’t apply to the 4th Amendment. B. United States v. Gonzalez- video surveillance. White analysis applies. Court held that employees did not have an expectation of privacy in a public mailroom that society would accept as reasonable; a search was not conducted when officers obtained consent of the hospital to place a surveillance camera in the mailroom. 4. Financial Records A. California Bankers Ass’n. v. Shultz- Bank Secretary Act required banks to maintain clients identities and microfilm certain checks; had to record each deposit, withdrawal, currency exchange, or payment for any amount over $10,000. ACLU argued that this made the bank agents of government and that the recordkeeping provisions amounted to a search. The Court held that depositors of necessity granted access to banks, so this precluded any legitimate expectation of privacy that the government would not have the same access. 5. Pen Registers A. Smith v. Maryland- police installed a device in the phone company offices that recorded the numbers defendant called from his phone. The Court stated that “a person has no legitimate expectation of privacy in information that he voluntarily turns over to third parties” and that “when he used his phone, petitioner voluntarily conveyed numerical information to the phone company.” Dissents argued that if the conversation in a phone booth was protected in Katz, the number dialed from the home should be equally protected, and that a person who discloses information for a limited business purpose shouldn’t need to assume that the information will be released to other people for other purposes. 6. Trash A. California v. Greenwood- officer’s inspection of trash was not a search, and therefore was permissible without a warrant or probable cause. Ruling was based on the theory that Greenwood had no expectation of privacy in property that members of the public had access to. 7. Public Access Area A. According to the “public access” theory of the Katz test, most acts conducted in public are not protected by the 4th Amendment.


B. United States v. White- officer’s activity of viewing defendant engaged in illegal activity through a bathroom stall was not a search; the design of the stall allowed the officer to view the interior of the stall in a way that was expected of the occupant of the stall. 8. Aerial Surveillance A. California v. Ciraolo- 4th Amendment was not violated by aerial observation of a fenced-in backyard from 1,000 feet, Ciraolo had erected two fences outside of his property. B. Ordinary Flights i. Florida v. Riley- crucial question was whether the public could gain access to the information in Riley’s backyard by way of aerial surveillance (information was partially obscured by a greenhouse). The helicopter was hovering. Court held that it could; the information was available to the public. Dissent wanted to analyze this case based on what the public actually does; they wouldn’t hover and therefore it should be considered a search. 9. Manipulation of Bags in Public Transit A. Bond v. United States- agent’s manipulation of defendant’s bag on a bus violated the 4th Amendment because the bag was handled in a manner that the petitioner would not expect the bag to be handled; the agent was feeling and probing the bag instead of just patting it. 10. Technology Cases A. GPS trackers- not a search to track public movement. A GPS tracking device is giving the same information that would be obtained if a person was being followed by police. (Karo). B. Dog sniffs and drug tests- not a search because only illegal activity can be revealed. i. Urine tests have an expectation of privacy because they can detect various things (pregnancy, medications, illnesses, etc.) Kyllo v. United States (p. 64) FACTS: Police used a thermal imaging device to determine if defendant’s home had high amount of heat, indicating possible marijuana plant growth. The police officers used the scanner while sitting in a car across the street from defendants home, and from the back of the home as well. The image showed that there was extra heat near the roof and the garage; a warrant was obtained and a physical search led to the discovery of marijuana. ISSUE: Did the use of the thermal heating device amount to a “search” within the meaning of the 4th Amendment? HOLDING: Yes. REASONING: The home is a sanctuary of which any intrusion without a warrant is unreasonable. The Court cannot allow constant evolving technology to erode the minimum expectations of privacy. The use of such devices will constitute a search until their use becomes widely used by the public. All activities in the home are intimate; it doesn’t matter that it was only heat that was seen through the imagine. Dissent was concerned about the implications of this Court’s decision. Once these technologies become widely used, the Court’s decision is actually diminishing the 4th Amendment because such uses would be permissible and the home’s sanctity would be lost. RULE: The use of thermal-imaging devices to detect hear in a private home constitutes a search under the 4th Amendment. Private Conduct 6

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The 4th Amendment is intended to regulate government actors. A search or seizure conducted by a private citizen is not a search of seizure within the meaning of the 4th Amendment. The 4th Amendment does apply if a private individual is acting, under the circumstances, as an agent for the government. Government officials cannot avoid the 4th Amendment requirements by enlisting private individuals to do what government officials cannot lawfully do!

Government Investigation Activity Subsequent to Private and Other Legal Searches 1. Walker v. United States- FBI agent viewed a video that they received from a person who mistakenly received the videos as a result of a wrong delivery. The recipient had opened them, but didn’t view them. The Court held that the unauthorized viewing of the film’s content constituted an unreasonable invasion into the owner’s constitutionally protected interest in privacy 2. Reopening Permitted a. United States v. Jacobsen- FedEx supervisor asked an office manager to examine a package that had been torn open by a forklift. Found a weird tube inside; cut it open. Contained several ziplock bags containing a powdery white substance and contacted the DEA. DEA agents arrived and reopened the tube and the ziplock bags and tested the substance. Court upheld the agent’s actions. FedEx employees actions were not covered by the 4th Amendment and Walker required an analysis of the extent to which the government exceeded the bounds of the private search. 3. Controlled Deliveries a. Illinois v. Andreas- government agents conducted a customs search of a wooden crate that was being shipped to a US address. They found drugs hidden inside. They resealed the crate and shipped it to the address, and searched the defendant after he brought it into his home and left the home several minutes later. “The simple act of resealing the container to enable police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights.” The reopening of the crate was not a search.



“Searches conducted outside the judicial process, without prior approval by a judge or magistrate are per se unreasonable under the 4th Amendment, subject only to a few specifically established and well-delineated exceptions.”- Katz v. United States JOHNSON V. UNITED STATES (p. 80) FACTS: Police entered Johnson’s hotel room after receiving information that the room smelled of opium. Police contacted the federal agents and they entered the room after Johnson gave them permission. Police found opium and a smoking apparatus that was warm. ISSUE: Did the officer violate the 4th Amendment by arresting petitioner and searching her living quarters without a warrant? HOLDING: Yes.


REASONING: The warrant requirement protects citizens by requiring that inferences are drawn by a neutral judge/magistrate instead of a police officer, who may be engaged in the “often competitive enterprise of ferreting out a crime.” The officers in this case had no legitimate reason why they could not obtain a warrant; the suspects did not attempt to flee, the search was not of a moveable vehicle, and there was no indication that evidence was going to be destroyed. RULE: When a persons’ right to privacy must be reasonably yielded to a right to search, this decision must be made by a judge or magistrate, NOT the police officer.  Hypo A robbery was reported earlier in that day. The suspect was wearing a very ridiculous, uncommon outfit. Police officer responds to a noise complaint in Jim’s apartment. Jim answers the door wearing an outfit that matches the description of the robbery suspect’s outfit. He is also looking nervously at his closet.  Two issues: o How do we know we’ll find evidence in the closet? It could be a coincidence that someone else has a crazy outfit. Maybe it’s wrong to assume it’s the same person. o Should the officer obtain a warrant before the search? Maybe this situation ought to be judged by a neutral magistrate. The magistrate can determine if there’s probable cause and will not be controlled by the passion that an officer may be dealing with in this situation. 

Demonstrating Probable Cause Two possible probable cause tests: Aguilar/Spinelli or Illinois v. Gates. Some states still use the Aguilar Spinelli test (NY). But the Supreme Court held that the two-pronged test would no longer control the determination of probable cause when the police obtain information from paid, professional, or anonymous informants. The Court rejected the two-prong test and adopted a “totality of the circumstances” approach in Gates.

SPINELLI V. UNITED STATES (p. 90) FACTS: Spinelli was convicted of traveling to St. Louis from Illinois with the intent of conducting illegal gambling activities. Police obtained a warrant based on an affidavit stating that Spinelli frequently traveled between the two cities, he had an apartment with two telephones, and that he was known to the affiant and the Feds as a bookmaker and famvler and that the FBI had received information from an information that Spinelli was accepting wagers. ISSUE: Did the affidavit provide sufficient probable cause to allow a search warrant to be granted by a magistrate? HOLDING: No. REASONING: The affidavit fell short of the standard set forth in Aguilar and Draper. Aguilar- the magistrate must be able to independently judge the validity of the informant’s conclusion; the affiant-officers must support their claim that the information received from the informant is credible. Draper- the informant had told officers that Draper would arrive at a train station carrying heroin and would be wearing specific clothes; specific assertions were made, and that shows the credibility of the informant. Informant had predictive information. In Spinelli, the affidavit did not 8

state how the informants statements were supported. The facts listed in the affidavit itself do not by themselves indicate any criminal activity. RULE: Probable cause is to be determined by a neutral and detached magistrate who must analyze the reliability and basis of knowledge of the informant. If both prongs are satisfied, there is probable cause. If not, the tip can be considered by the magistrate only if there is considerable corroboration. The Aguilar/Spinelli Two- Prong Test (NY uses this!) 1. Reliability/veracity- can we believe the informant? Is the informant himself credible?  can be established by information that is believable in the circumstances  informant’s previous good track record of providing credible information  motivation for accuracy (they’re getting a plea bargain, so that will make them more likely to be accurate)  is the information generally believable? 2. Basis of knowledge- does the informant know what he’s talking about? (Credible information)  some people may truly believe something, but that doesn’t mean it’s right! Ex: Mother Theresa may think that everyone who wears baggy jeans is in a gang; the fact that she honestly believes this doesn’t mean that she has a good basis of knowledge THE RULE: If both prongs are satisfied, the information can be used to establish probable cause. If not the tip can be considered by a neutral magistrate only if there is sufficient corroboration. ILLINOIS V. GATES (p. 97) FACTS: A confidential informant wrote a letter to the police with information that a couple in the neighborhood was engaging in the sale of marijuana. The informant provided specific information as to how the couple obtained the marijuana, and the informant stated an estimated date that the couple would be traveling to obtain drugs again. Mader investigated and found some information that was consistent with what the informant said. Mader was in contact with the DEA, and signed an affidavit that he submitted to a judge. The judge issued the warrant.

ISSUE: Was the anonymous letter along with the officer’s affidavit sufficient to establish probable cause? HOLDING: Yes. REASONING: Even standing alone, the facts obtained through the investigation of Mader at least suggested that the Gates’ were engaged in illegal drug activity. Additionally, the letter corroborated Mader’s investigation.

RULE: In determining whether a warrant was issued based on sufficient probable cause, the magistrate should analyze the information using a “totality of the circumstances” analysis; the task of the magistrate is simply to make a common sense decision whether given all of the information in front of him, there is a fair probability that evidence of a crime will be found.

Aguilar/Spinelli and Gates


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Under Aguilar/Spinelli if the magistrate thought that one prong failed, no probable cause. Under Gates, the government has room to argue. Under Gates, all corroboration gets thrown into the mix; innocent facts just have less weight. Under Aguilar/Spinelli, innocent facts (such as defendant having 2 telephone lines) have no weight and are usually not even considered. The two-prong test still has some relevance when the police rely in whole or in part of an informant’s tip!

Maryland v. Pringle (p. 121) FACTS: Police officer stopped a car for speeding. Three passengers were in the car. As the driver reached for his registration, police officer noticed a rubber band of money in the glove compartment. Police officer went back to the patrol car and searched records, finding no violations for Partlow (the driver). Officer asked Partlow if the car contained any drugs or weapons. Partlow said no and consented to a search of the vehicle. Officers found a bundle of money and 5 bags of cocaine. All 3 passengers were arrested. Pringle waived his Miranda rights and confessed. Trial court denied Pringle’s motion to suppress evidence as the fruit of an illegal arrest. Court of appeals reversed, finding that there was no specific information to indicate that the drugs belonged to Pringle and not the other passengers. ISSUE: Did the police officers have probable cause to arrest Pringle for the possession of drugs? HOLDING: Yes. REASONING: Based on the information, it was reasonable that any one or all three of the occupants had knowledge of and exercised dominion over the cocaine. Therefore, probable cause existed to arrest any one of them. The placement of the drugs indicated that any of them might be exercising dominion. The Court reasoned that a “reasonable officer could have concluded that there was probable cause to believe that Pringle had possessed cocaine.” RULE: When an officer can reasonably conclude that a defendant may be guilty, the officer has probable cause to arrest the defendant even if it is possible that other persons may have been the guilty party. NOTE: In order for a passenger to challenge the search, they must establish an expectation of privacy in the car. Hypo What if there was $5 in the glove compartment, instead of several hundred, and only one bag of cocaine? This wouldn’t seem as suspicious and the officers would need more information to establish probable cause as to all three passengers.  Every change in facts (such as $5 or one bag) gives Pringle’s attorney questions to raise to show that Pringle wasn’t involved in a conspiracy to sell drugs. Devenpeck v. Alford (p. 124) FACTS: Police officer was driving and saw two cars pulled over; one car had wig wag lights turned on and was assisting a disabled car. As the police officer approached, the man went to his car and drove away. Police officer asked the people there if the man was a police officer; they told him that he appeared to be. When the officer approached the mans car after pulling him over, he saw that the man had intercepted the


local police departments radio and was listening to it. He was also recording the conversation. He was arrested and charged with recording in violation of an Act, even though a recent Court of Appeals decision said it was lawful for him to record a conversation with police officers. Defendant argued that his arrest was unlawful because the offense he was arrested for was not “closely related” to the offense that the officer had probable cause for.

There was objective probable cause, but the police officer arrested defendant on a crime which he had subjective probable cause for that was not closely related to the crime that had objective probable cause. ISSUE: Was the arrest lawful when police had probable cause for an arrest for one crime and the actual arrest was made for another crime? HOLDING: Yes. REASONING: A police officer’s subjective reason for making an arrest need not be the criminal offense as to which the known facts provide probable cause. The “closely related” rule is inconsistent with this precedent. It is improper for a rule to turn on the motivation of a police officer. RULE: An arrest is lawful if the police officer had probable cause for one crime but then arrested the defendant for another crime. Arrested for X, but no probable cause for X. How is this lawful?  The police had probable cause for something else, so even though the arrest was for something else, it’s still lawful.  Even if a police officer doesn’t realize they have probable cause, the arrest is lawful as long as there is probable cause based on an objective standard. 

Probable Cause, Specificity, and Reasonableness What can be seized? o Fruits of the crime (the stolen items, drugs, etc.) o instrumentalities o contraband o evidence

Warden v. Hayden (p. 129) FACTS: Maryland Court convicted the defendant of armed robbery. Items of his clothing matching the description of the robber were seized and admitted into evidence. Court of Appeals reversed his conviction, stating that the clothing was improperly seized because the items had only “evidentiary value” and only fruits of the crime can be properly seized. ISSUE: Was the Court of Appeals correct in holding that the seizure and introduction into evidence of the clothing violated the 4th Amendment because the clothing was only “mere evidence?” HOLDING: No. The Court of Appeals was incorrect. REASONING: The 4th Amendment does not make a distinction between “mere evidence” and the “fruits of the crime.” The 4th Amendment only wants to protect privacy again illegal searches and seizures; privacy is not disturbed any more by a search/seizure for mere evidence than it is by a search/seizure for fruits of the crime. RULE: Items that constitute “mere evidence” of a crime can be seized and admitted into evidence. 11

Andresen v. Maryland (p. 141) FACTS: A bi-county investigation led police to an investigation of real estate settlement activities and Andresen was suspected of fraud with regard to the sale and conveyance of lot 13T. A warrant was obtained for specified “documents pertaining to the sale and conveyance of lot 13T.” The final clause was vague and said that search and seizure of “other fruits, and instrumentalities and evidence of crime at this time unknown” was permitted. Petitioner contends that his 4th Amend right was violated because the warrant’s descriptive terms were so broad that they constituted a general warrant. ISSUE: Was the warrant specific enough to not be considered a general warrant?

HOLDING: Yes. REASONING: Andresen misinterpreted the warrant. The Court found that the phrase “other fruits . . unknown” meant evidence to the crime at hand yet unknown, not to other crimes unknown. That would be too broad. The Court noted that the search of papers and audio tapes are tricky because papers need to be read in order to determine if they are the thing sought, and tapes need to be listened to. The Court cautioned officers to conduct searches in a manner that minimizes unwarranted intrusions upon privacy. RULE: Warrants that seek documents must be specific so they don’t infringe upon 4th Amendment rights to reasonable searches. Zurcher v. Stanford Daily RULE: The critical element is reasonable cause to believe that the specific “things” to be searched for an seized are located on the property to which entry is sought.  If not, police would be free to search the homes of anyone associated with the suspect! The Place to be Searched A. Third party searches are permitted (Zurcher v. Stanford Daily) B. The place to be searched must be described with particularity (usually an address or a specific description) C. Maryland v. Garrison- the Court upheld a warrant authorizing the search of the “third floor apartment” even though there ended up being two apartments on the third floor. A police officer had obtained information that seemed to indicate that there was only one apartment on the third floor D. The Wrong Address a. Lyons v. Robinson- warrant authorized the search of 325 Adkinson street; Robinson’s residence was actually located at 325 Short Street, on the corner of Short and Adkinson. Court said the warrant was sufficiently particular because it made it unlikely under the circumstances that another premises might be mistakenly searched. Description of the Persons or things to be Seized  May depend on the nature of the evidence. Certain things need to be described very carefully.


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What is needed it “sufficient particularity to guide the execution of the warrant” so police know what to look for. Executing the Warrant Statutes throughout the country require that officers require that officers executing a warrant knock and announce their presence before attempting to enter a dwelling. 18 U.S.C.A 3109- “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he is refused admittance when necessary to liberate himself or a person aiding him in the execution of the warrant.” o Can break down doors if refused admittance! The general rule: An officer can break open premises if he has announced his authority and purpose and is refused entry. “You can’t come in” is grounds for entering. Refusal can also be implied through a persons’ failure to respond within a reasonable amount of time. Generally, citizens are allowed more time to answer at night.

Wilson v. Arkansas (p. 150) RULE: In order to be reasonable, the execution of a search warrant must be preceded by a knock and announce. REASONING: There are three reasons for this rule 1. Provides a little opportunity to protect decency (clothing, showers, etc.) 2. Protects against the potential violence in a chaotic situation (There have been situations where police break into the wrong house and the homeowner shoots the police officer because they think they’re being robbed) 3. Prevents needless destruction of property. We don’t want doors/windows being broken if they don’t need to be! “No-Knock” Entry: Exigency Exception to the Knock and Announce Requirement Richards v. Wisconsin (p. 152) FACTS: Police obtained a warrant to search Richards’ hotel room for drugs and paraphernalia. Police requested a “no-knock” warrant, but the magistrate denied this request and issued a regular search warrant. The police went to the hotel room and knocked on the door announcing himself as a maintenance man. Richards cracked open the door, leaving the chain hooked. He shut the door when he saw an officer in uniform. The officers then started knocking the door down while shouting that they were police officers. When they broke in, they saw Richards trying to escape out of the window. They found large amounts of cash and drugs. ISSUES: Can a police officer break down a door if there are exigent circumstances? HOLDING: Yes. RULE: 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. REASONING: There are three reasons for the exigency exception to the knock and announce requirement: 13

1. to prevent the destruction of evidence. Drug dealers usually leave drugs close to sinks/bathrooms so they can destroy evidence quickly. 2. to prevent the suspect from escaping 3. safety “Tricking” the Homeowner Courts have held that if the officer can trick the homeowner into opening the door, there is no violation of the knock and announce requirement because there is no “breaking.”  United States v. Alejandro- held that officers did not violate the knock and announce requirement by posing as utility men and entering when defendant opened the door because there was no “breaking.” No-Knock Warrants If officers have reason to believe that exigent circumstances will exist, they can tell the magistrate and can get a warrant permitting them to enter the dwelling without knocking and announcing.  Ex: Can demonstrate that the defendant is known to be dangerous, known to have guns, etc. Forced Entry Rule Forced entry after a knock and announce is permitted in the following two situations: 1. Exigent Circumstances 2. Refusal of Entry (actual of inferred) a. United States v. Banks- defendant was in the shower when officers knocked and announced. They forced entry after 15-20 seconds of not hearing a response. Courts look at the officers perspective in determining whether the forced entry was reasonable. In 15-20 seconds, the defendant could be in the shower, or he could be escaping, destroying evidence, hurting someone, etc. What happens when officers violate the knock and announce requirement?  The evidence is not excluded!  the purpose of the knock and announce rule is to protect the reasonableness of the search, not to allow defendants a chance to hide things or escape. Therefore, evidence is not excluded if officers violate the rule. Anticipatory Warrants A judge/magistrate can issue a warrant that is only valid when a stated event occurs.  The argument against anticipatory warrants is that the police decide when the event occurs, not the magistrate. “Sneak and Peak” Warrants Allow police officers to search and seize without telling the defendant that they were there and without providing them with a copy of the warrant and a list of the evidence they obtained. Congress said that this was permissible.


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Searches usually occur at the end of an investigation when the defendant is about to be arrested. Post 9/11, police wanted to search possible terrorists earlier on to catch criminal activity sooner. Problem with sneak and peak warrants- if the home is searched without knowledge, the defendant doesn’t have the opportunity to challenge whether the magistrate was right in issuing the warrant. There’s no check on the NDM’s decision.

Particularity of the Warrant- Scope  Size matters! Police can look anywhere that the items sought may be found. If it’s large enough to contain the evidence, it can be searched. o If they’re looking for a rifle, they can’t search a small container. o However, if the warrant stated that they were searching for a riffle and contraband/instrumentalities, they can search a small container because bullets may be found there. o Warrants should be very carefully drafted to include these things! o Including “blood, hair, and fibers” basically allows a search of the whole premises because those can be found anywhere! Destruction of Evidence and Excessiveness Buckley v. Beaulieu- officers acted unreasonably in tearing up the walls in defendant’s home to search for liquor. They could have searched for liquor concealed in the walls by using “some slender probe with comparatively little injury.” United States v. Weinbender- officers searched wall of defendant’s home to search for clothes that would have connected defendant to a crime. The Court held that this was reasonable because the officers had received information that the defendant used weird hiding places, the officers observed a small piece of drywall that was unfinished and it was a small piece covering a storage space. Look at the facts of the case to see if it’s excessive! Use of Distraction and Intimidation Devices United States v. Myers- Court upheld officer’s use of a flash bang device. Showed concern for the use of the device because children were sleeping in the home, but held that it was reasonable due to Myers known criminal activity. United States v. Jones- use of a flash-bang device does not result in the exclusion of the evidence obtained. Unnecessarily Intrusive Searches The manner in which a warrant is executed is always subject to judicial review to ensure that it does not traverse the general 4th Amendment proscription against unreasonableness. Hummel-Jones v. Stope- officers questioned a woman in a shelter while she was nursing her newborn baby. Court held that the search was so intrusive as to be unreasonable. Neutral and Detached Magistrates 15

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Coolidge v. New Hampshire- Supreme Court stressed the importance of neutral and detached magistrates. Stated that the magistrate must not be associated with the police department. “Rubber stamps”- a magistrate cannot be neutral and detached if he has a reputation for issuing pretty much every warrant that he is faced with. Magistrates do not need any legal training.

C.  

 


The Court has held that a search or seizure is presumptively unreasonable in the absence of warrant based upon probable cause. However, the Court has found that the presumption of unreasonableness can be overcome in a variety of circumstances. What quantity of evidence must police show in order to arrest a suspect? o In order to arrest a person, a police officer must always have probable cause to believe that a crime has been committed and that the suspect committed the crime. This is always needed for an arrest. o What changes is the warrant requirement. Generally, a warrant is needed for an arrest to be reasonable. There are several exceptions. The issue of whether a warrant was needed arises when a defendant tries to suppress evidence by stating that his arrest was unreasonable. If police want defendant to be arrested anywhere other than his home or the public, they also need to obtain a search warrant!  What do you think would apply if the defendant was at work? Would a search/arrest warrant be needed? Arrests in Public

UNITED STATES V. WATSON (p. 171) FACTS: An informant, Khoury, gave a tip to a postal inspector that Watson was in possession of a stolen credit card and had asked Khoury to use the card to their advantage. Khoury had provided the inspector with reliable information on 10 other occasions. Khoury arranged to meet Watson at a restaurant, and was to signal to the inspector if Watson had any stolen credit cards with him. Officers searched Watson after receiving the signal and found no cards on him; they did find two stolen credit cards hidden in his car. Watson was arrested. At trial, Watson moved to suppress the cards, claiming that his arrest was illegal for lack of a warrant. Trial Court said it was proper to arrest him without a warrant and convicted him; Court of Appeals said it was an error to arrest Watson without a warrant and reversed the conviction.

ISSUE: Does a public warrantless arrest violate the 4th Amendment? HOLDING: No. REASONING: There is nothing in the court’s prior cases indicating that a warrant is required to make an arrest for a felony under the 4th Amendment. “The usual rule is that a police officer may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony.” Carroll v. United States, 267 U.S. 132, 156 (1925). Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.

RULE: A warrantless arrest made in a public place does not violate the 4th Amendment. Hypo


Police officer has probable cause to believe that defendant has committed a felony. He sees him walking down Hempstead Turnpike. He arrests him without an arrest warrant. Does this arrest violate the 4th Amendment?  No. This arrest is reasonable under the 4th Amendment. Many states and the federal government follow this rule.  However, the officer may still want to obtain a warrant to be cautious. o Ensures that future evidence won’t be lost. If it is later found that there was no probable cause, the evidence will be lost. But if a magistrate determined that there was probable cause and issued a warrant, the defendant can’t raise it as an issue. Protections Against Erroneous Warrantless Arrests COUNTY OF RIVERSIDE V. MCLAUGHLIN (p. 179) FACTS: This is a class action challenging the manner in which the County provides probable cause determinations to those arrested without a warrant. The policy states that the determinations must be without unnecessary delay and always within two days of an arrest (not including holidays, so people can actually be there for a long time). The Gerstein case said that probable cause must be given “promptly,” but the court offered no guidance as to what “prompt” meant. ISSUE: How soon must a probable cause determination be given in order to be considered “prompt.” HOLDING: A probable cause determination is prompt if it is given within 48 hours of the arrest. REASONING: The Court said that they must balance the interest of protecting the public from possibly dangerous arrestees and protecting the interest of unnecessarily holding an innocent suspect. They found that two days was reasonable enough because it allows enough time for the police to deal with delays that happen in the ordinary course of police work. RULE: A probable cause determination is prompt if given within two days of the arrest without a warrant; however, it can still be found reasonable if the determination was unnecessarily delayed even within 48 hours: “that delay may be unreasonable if it is motivated by a desire to uncover additional evidence to support the arrest or to use the suspect’s presence solely to investigate the suspect’s involvement in other crimes.” United States v. Davis, 174 F.3d 941 (8th Cir.1999) (defendants warrantless was held unreasonable even though defendant was only held for two hours). Remedy for a McLaughlin Violation Courts have found that evidence can be excluded only if it was obtained as a result of an unreasonable detention. Therefore, exclusion is not required if a magistrate would have found probable cause for the detention even if the hearing had been promptly conducted. Arrests in the Home PAYTON V. NEW YORK (p. 184) FACTS: Police investigated Payton for two days and established enough probable cause to believe that Payton committed a murder. They went to his house to arrest him; they did not have an arrest warrant. They knocked on the door but no one answered; they entered because the house had


lights on and music coming from inside, so they assumed he was home. When they entered, they discovered that he wasn’t home but a gun was in plain view. ISSUE: Is an arrest warrant required for an arrest effectuated in the defendant’s home? HOLDING: Yes. REASONING: The home is different from a public place. People have a greater expectation of privacy in their home, and the law should recognize that the home is a sanctuary. RULE: An arrest warrant is required if police wish to arrest a defendant in his home. Hypo Officers wish to arrest a homeless person. At the time of the arrest, he is in the area that he calls “home.” Is a warrant needed?  Some Courts have held that the arrest won’t violate Payton if there is no warrant because it is not a “home.”  Other Courts have been more sympathetic to the privacy interests of homeless persons and have held that an arrest warrant is needed to arrest a homeless person whenever they are in the area that they call “home,” as long as he is not trespassing. Hypo Police wish to arrest a person who is staying in a hotel. Is an arrest warrant needed to arrest the defendant in their hotel room?  Yes. The Payton rule applies to hotels/motels during the rental period. If the person stays in the hotel past the rental period and is not paying for it, no warrant is needed. Arrests in the Home of a Third Party STEAGALD v. UNITED STATES (p. 189) FACTS: Police obtained an arrest warrant for Ricky Lyons. They received information that Lyons would be staying at Steagald’s house for the next 24 hours. They went to Steagald’s home and searched for Lyons and didn’t find him, but found drugs belonging to Steagald. Steagald alleged that the drugs should be suppressed because the officers did not have a search warrant to search his home. ISSUE: If the police have an arrest warrant for a person, and they believe that the person is staying at the home of a third person, is a search warrant needed to search the home of the third person? HOLDING: Yes. REASONING: A magistrate should be the one to determine that there is probable cause to believe the suspect is at the third party’s home. RULE: A search warrant must be obtained to look for a suspect in the home of a third party, absent consent or exigent circumstances. Police need to demonstrate a fair probability that the arrestee is at the third party’s home. NOTE: If the police had a search warrant for Steagald’s home, the evidence implicating Steagald doesn’t need to be excluded because they were there lawfully. The Question of Standing


In Steagald, the court suppressed the evidence seized against Steagald because his 4th Amendment rights were violated as a result of the search. Would Lyons have standing to complain about the search?  No. The Courts are concerned with the privacy interests of the third-party homeowner, not of the visiting arrestee.

The Rights of an Overnight Guests Minnesota v. Olson- an arrest warrant is required under Payton to arrest a person who was an overnight guest in the home of a third party. Justice White stated that a person’s status as an overnight guest is enough to show a reasonable expectation of privacy in that home. Would a search warrant be needed too? Temporary Visitors Minnesota v. Carter- Carter and Johns objected to a warrantless search of an apartment. They were there for a few hours for the purpose of cutting up cocaine. The Court stated that they had no reasonable expectation of privacy in the apartment and could not object to the warrantless search. This case is also discussed in the materials on standing. Exceptions to the Warrant Requirement in a Nutshell 1.

No arrest warrant needed for an arrest made in a public place. United States v. Watson a. Hypo: Police officer has probable cause to believe that suspect has committed a robbery. He can approach the suspect on Hempstead Turnpike and arrest him without a warrant. b. This rule comes from the common law. It is followed by many states and federal law. c. Police officer may still want to obtain an arrest warrant to make an arrest in public. i. can ensure that future evidence won’t be lost. Ex: If it is later determined that there was no probable cause for the arrest, the evidence will be lost. If an arrest warrant is issued by a magistrate, the defendant can’t raise it as an issue. ii. Sometimes defendants think that an arrest isn’t a big deal; having a warrant makes it “stick” more d. Collective knowledge- police officer’s can rely on information from police officers in other jurisdictions to establish probable cause. Whirley v. Warden e. Watson was silent on what happens when a misdemeanor happens outside of the officer’s view. It doesn’t suggest that the 4th Amendment would be violated if the suspect was arrested in public based on information not directly witnessed by the arresting An arrest warrant is needed if an arrest will be made in the suspect’s home, even if there is probable cause to arrest. Payton v. New York a. The Court drew a line between a public place and a home. We want to protect the sacred notion of a home. b. It’s the showing of probable cause that makes a person arrestable. Once there is probable cause, a person can be arrested anywhere; the seizure is lawful. It becomes a matter of how they were seized.



If there is probable cause to believe someone committed a crime, they are “seizable,” just like the fruits of the crime, instrumentalities, etc. It’s just a question of where you go to get them. d. There are two requirements of the Payton rule: i. An arrest warrant ii. Reason to believe the person is home e. No search warrant was needed to search for Payton in his home because there was reasonable cause to believe that they were home. They have to show that they think he’s home, but not to the magistrate. They just have to show a “reason to believe.” f. If defendant was home, officer needs an arrest warrant, not a search warrant to search for him (he only needs reason to believe that he’s there. g. An arrest warrant only allows police to search the suspect’s home to find the defendant; it does not permit the police to search for the defendant anywhere he might be found (friends and families houses, etc.) Police can’t barge in to a suspects friends home with an arrest warrant for the suspect. Police need probable cause to arrest AND a SEARCH WARRANT if they arrest defendant in a third party’s home. Steagald v. United States a. Need to show a fair probability that defendant is at the third party’s home. b. The purpose is to protect the third party’s privacy in his own home, not the defendants! NOTE: There is no constitutional requirement for an arrest warrant; officers do not need to obtain an arrest warrant even if they have sufficient notice.

Stop and Frisks TERRY V. OHIO (p. 193) FACTS: Officer McFadden spotted two men, Terry and Chilton, standing on a street corner talking. One of them walked down the street and stopped in front of a store and looked into the window. He came back and spoke with the other. Then the other did the same thing. They repeated this pattern of one of them walking to the store and then returning to talk to the other several times each. At one point they starting speaking to another man, Katz. Officer McFadden approached them and identified himself, and began to pat the outside of Terry’s coat. After feeling a gun, he pulled the three men inside. He patted the outside of Terry and Chilton’s coats before searching the inside and finding guns; Katz was not carrying a concealed weapon, so McFadden did not feel the inside of his coat. ISSUES: 1. Did a “search” and a “seizure” occur in this case? 2. Is it unreasonable for a police officer to seize a person and subject him to a limited search for weapons when there is no probable cause for arrest? HOLDING: 1. Yes. A search and a seizure occurred. The Court didn’t follow the suggestion that the terms “stop” and “frisk” are words describing police conduct that falls out of the 4th Amendment. “ It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. 2. It is not unreasonable RULE: When a police officer has reasonable suspicion to believe that a suspect is dangerous, he may conduct a limited search (“frisk”) of the person in order to discover any weapons, even if there


is no probable cause for arrest at the time. It’s a reasonable suspicion requirement, less than probable cause! Reasonableness is determined based on an OBJECTIVE standard. REMEMBER: A “terry” stop and frisk only permits officers to look for weapons; an officer cannot do a stop and frisk if he is looking for drugs! Adams v. Williams (p. 202) FACTS: Officer was approached by an informant who told him that the defendant was carrying a gun at his waist and narcotics; defendant only lowered the window when the officer told him to step out of the car. Officer felt defendants waist and felt a gun; defendant was arrested for unlawful possession of a fun and for narcotics found during a subsequent search of Williams and the car. HOLDING: A tip from a reliable informant may give a police officer reasonable suspicion to frisk the suspect. This case expanded the Terry tule to allow that an officer’s suspicion does not need to be based on his own personal observation. Bright Line Rule Under Terry Pennsylvania v. Mimms (p. 204)-police stopped Mimms for driving with an expired license. Once he was out of the car, they saw a bulge under his jacket and frisked him. The issue was whether the officers were justified in ordering Mimms out of the car. HOLDING: Officers in the course of a legal stop of a car have an automatic right under Terry to order the driver out of the vehicle. Traffic violations still pose a risk to the officer. Maryland v. Wilson (p. 207)- Officer pulled over a car for speeding and ordered the driver and the passengers out. Bag of cocaine fell from one of the passengers as he stepped out of the car. Passenger claims that the drugs should be suppressed because the officer didn’t have a right to order him out of the car. HOLDING: The automatic rule authorizing officers to order the driver out of the car after a legal stop also applies to passengers. Officers have an automatic right to order passengers out of a car. Even though the stop of the car didn’t have anything to do with the passenger’s conduct, the intrusion is minimal. Protective Frisks of Passengers Arizona v. Johnson (p. 208)- Officers who conduct routine traffic stops may perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous. Unlike ordering them out of the car, this isn’t an automatic right; the officer needs reasonable suspicion that the person is armed and dangerous before he can pat them down! New York v. Class (p. 208)- an officer is allowed to reach into the defendant’s car to move an obstruction that is blocking the VIN number. Police officers did not have to ask Class to re-enter his car to move the papers. Detention of Occupants of a Residence During Legal Law Enforcement Activity


Michigan v. Summers (p. 209)- It is reasonable for police officers to require the occupant of the premises to remain present while a search of their premises is being executed. they can be ordered to stay even if they were leaving the premises at the time the officers arrived.  Reasoning: This prevents the potential destruction of evidence. An occupant may try to destroy some evidence in the process if leaving the home. Also, if occupants aren’t required to stay, they may try to escape and hide. Muehler v. Mena (p. 209)- Officers can handcuff and detain a person during the warranted search of their home. It was also permissible for officers to question the detainee on suspected gang involvement during the search. The Court has held several times that “mere questioning does not constitute a search.” Since the detention was not prolonged by the questioning, there was no additional seizure within the meaning of the 4th Amendment.

When Does a Seizure Occur: The Line Between “Stop” and “Encounter” United States v. Mendenhall (p. 212) FACTS: DEA agents observed Mendenhall as she arrived on a slight suspected her of being a drug courier. They walked with her on the public concourse and identified themselves as DEA agents. They asked for her license and plane ticket; the name on the plane tickets was not hers. They asked her to follow them for more questioning and she complied. During questioning, she was searched and drugs were found. Court held the Mendenhall was not seized. RULE: A person has been seized within the meaning of the 4th Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Florida v. Royer (p. 213) FACTS: Officers spotted Royer at an airport and thought he looked like a possible drug courier. Detectives approached him and identified themselves as being with the sheriff’s office and asked if Royer had a moment to speak with them; Royer said yes. Royer produced his airline ticket and driver’s license upon request without speaking. The names were different. The officers held on to them and told Royer that they were narcotics detectives. Detectives asked Royer to accompany them to a room for questioning; he complied but didn’t answer. One detective retrieved the suitcases. Royer provided a key and the officer proceeded to open it without again asking if it was ok. Drugs were found. The second suitcase had a lock and Royer said he didn’t know the combination. When the detectives asked if it was ok if they bust it open, Royer said “go ahead.” They found more drugs. HOLDING: Royer was seized when the officers took his plane ticket and license and walked away. Whether a person has been seized depends upon the circumstances; the facts of this case are different from Mendenhall because the officers here took Royer’s identification; he couldn’t go anywhere. Factory Sweeps INS v. Delgado (p. 216)- INS officers did not seize workers when they conducted factory surveys in search of illegal aliens. During the sweep, employees continued to work and were free to move around the factory. 22

Street Encounters United States v. Cardoza (p. 217)- officers approached Cardoza in a car facing the wrong way on a one way street and asked h im what he was doing out at that time of night. Cardoza was talking with his hands and gesturing and revealed a bullet. Officers then patted him down and found a gun on him. HOLDING: Cardoza was not seized within the meaning of the 4th Amendment. The test for Terry stop and frisk is not whether a reasonable person would feel free to leave, but whether the police officer was acting coercively.

Bus Sweeps UNITED STATES V. DRAYTON (p. 220) FACTS: Drayton and Brown were on a bus when 3 officers boarded at a gas stop. Two officers went down the isle asking people to identify their bags and one stayed at the bus’ entrance. Officers did not tell any of the people that they did not have to comply with questioning. When they reached defendants, they asked to check their bags and defendants said yes, then the officer asked to check their person, which both defendants said yes. One of the defendants was already under arrest at the time the second defendant was searched. Both defendants were found to be carrying cocaine. ISSUE: Must an officer inform people that he is about to question that they do not need to comply with questioning? HOLDING: No. REASONING: The Court looked at the circumstances surrounding the questioning and found that the officers gave the passengers no reason to believe that they were required to answer the officers questions. The officer at the front was there to ensure that the other officers were safe. Officer Lang identified himself and made sure not to block the aisle for the defendants. He spoke with them in an average volume voice and didn’t even use an authoritative tone. RULE: An officer does not need to tell a person that they do not have to comply with questioning. State of Mind Required for a Stop Brower v. County of Inyo (p. 227)- seizure only occurs when there is a governmental termination of freedom of movement through means intentionally applied. Medeiros v. O’Connor (p. 227)- Gunman took over a schoolbus and took a student as hostage. Police officer fired and hit the student on accident. Held that the student was not seized; the intent to seize needs to be specific, not general. The Suspect Who Does not Submit California v. Hodari D. (p. 228)- Officers approached a group of youths, who fled when the saw the officers. Hodari threw a small rock as an officer was chasing him. Hodari claimed that the pursuit itself was a seizure.


Held: Court held that the pursuit was not a seizure. The public should be encouraged to comply with police orders, and allowing people who run from police to say they are seized affords them too much protection. Reasonable Suspicion Two-step analysis to determine if there was reasonable suspicion: 1. Investigate the source of information upon which the reasonable suspicion is based 2. Evaluate whether that information is sufficiently suspicion to justify a stop A. The Source of Information 1. Anonymous Tips Alabama v. White (p. 232)- police received an anonymous tip that White would be leaving a particular apartment in a station wagon with a right taillight broken and that she would drive to a nearby motel carrying a briefcase of cocaine. Officers observed and saw that everything the informant said was right, except for the fact that White wasn’t carrying a suitcase. The case was already in the car; she consented to a search of it when she was stopped. Held: There was reasonable suspicion because their was predictive information beyond “leaving her house in a station wagon.” Once she started driving towards the motel, there was reasonable suspicion even though this fact on its own is innocent. Florida v. J.L. (p. 234)- anonymous information called the police station and said that there was a young black male in a plaid shirt at a bus station carrying a weapon. Officers went to the scene and saw J.L. in a plaid shirt. They did not see a firearm, and J.L. did not act suspiciously or make any threatening movements. Officers approached him and told him to put his hands up, frisked him and found a gun. J.L. claims that the officers did not have reasonable suspicion for the stop. Held: There was no reasonable suspicion for the stop. There was no predictive activity. Rule: An anonymous tip lacking indicia of reliability does not justify a stop and frisk whenever and however it alleges he illegal possession of a firearm. Note: The Court implied that if the anonymous tip was about a major threat to public safety. (If the AI said that a guy in a plaid shirt was walking into a building with a bomb). Sitting with a gun doesn’t necessarily mean that the person is going to use it, and doesn’t pose that high of a risk.  Drunk driving- if an officer receives a tip that a car is driving erratically, and arrives at the scene and the car is already stopped, he still ahs reasonable suspicion to stop him for drunk driving. Erratic and possibly drunk driving poses an imminent threat to public safety.  Domestic violence- anonymous informant’s tips about domestic violence and related emergencies have been held to be sufficient for a stop even without sufficient corroboration through predictive activity UNITED STATES V. ARVIZU (p. 243) FACTS: Arvizu was stopped by a border patrol agent. His minivan drove past an officer and slowed down. Officer thought it was weird that Arvizu drove right by without glancing at him, since most people who passed border agents waved. He noticed that the children’s knees seemed to be very high up, as if their feet were resting on something.


ISSUE: Was there sufficient ‘reasonable suspicion’ to believe that Arvizu was engaged in illegal activity to justify the stop of the minivan? HOLDING: Yes. RULE: Reasonable suspicion can be found through innocent facts that are combined together. Relevance of Race City of St. Paul v. Uber (p. 254)- officer observed Uber’s car at 2:15 am, and again half an hour later. Discovered that the car was registered to a city 20 miles from where they were. Stopped him because they were in an area known for prostitution. Held: Simply being in a public area known for prostitution does not give reasonable suspicion to stop a person in that area. Additionally, the fact that it was a predominately white area and the defendant was black was not sufficient to raise suspicion. Use of Profiles Police use profiles to determine whether the conduct of citizens is sufficiently suspicious to justify a stop. Drug couriers- police frequently look for these factors in looking to stop a person  Arrival or departure from an identified source city  Carrying little or no luggage  Unusual itinerary, such as a rapid turnaround time after a very lengthy airplane tripe  Use of an alias  Carrying an usually large amount of currency  Purchasing airline tickets with a large amount of small demonization currency  Unusual nervousness beyond that of ordinary passengers Courts have held that the presence of any one of these factors is not dispositive; but if several of these factors are present, it is likely to give an officer reasonable suspicion for a stop. Reasonable Suspicion and Flight from the Police Illinois v. Wardlow (p. 259)- if a person runs upon seeing the police, this is enough to justify a stop of that person. The Court held that an individual’s presence in a high crime area, on its own, is not sufficient for a stop, but unprovoked flight provides reasonable suspicion. This is consistent with Florida v. Royer, which held that when an officer without reasonable suspicion or probable cause, approached a person, the person has the right to ignore the police and go about his business. B.

Limited Searches for Police Protection Under the Terry Doctrine

Minnesota v. Dickerson- the Court reaffirmed that Terry frisks are justified only for protective purposes and that a search for evidence is not permitted under Terry.  Officer suspected Dickerson of drug activity. PO patted him down and felt a small, hard object in Dickerson’s pocket. He determined that it wasn’t a weapon, but still continued to feel the object.  The PO exceeded the scope of a Terry frisk


Once it is determined that an object is not a weapon, the officer must STOP probing the object. o The whole purpose of a Terry frisk is to protect the officer from weapons that the person may have. Once it’s determined that there’s no weapon, the officer’s justification for the frisk stops; he therefore must stop probing.

Officer is conducting a frisk and feels a small container in the defendant’s pocket. He knows that some criminals hide razor blades in Altoid cans. He opens the box and finds cocaine. Was Terry violated?  No! It doesn’t matter what the frisk turned up. If the officer’s theory was reasonable, he was permitted to open it out of a concern for safety. Suspicion Required to Support the Right to Frisk NY Court of Appeals has held that:  “A frisk requires reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion is armed and may be dangerous.”  Can’t just frisk for no reason! Protective Searches Beyond the Suspect’s Person Michigan v. Long- defendant was stopped by officers saw him driving erratically before he swerved into a ditch. After he got out of his car, he appeared to be under the influence and didn’t answer any questions. The defendant started walking back towards his car. Officers shined a light and saw a hunting knife. The officers conducted a protective search of the car. The Court held that this search was permissible.  The officers were only permitted to search the area of the car that could have been reached by the defendant. NY Twist New York doesn’t follow Michigan v. Long! Protective Searches of Persons other than the suspect Ybarra v. Illinois- Court refused to uphold a frisk of a patron in a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to a valid search warrant. A persons’ mere presence enough isn’t sufficient to provide a reasonable basis that the patron poses a risk to officers. The line between a “stop” and an “arrest” 1. Forced movement of the suspect to a custodial area- some forced movements of a suspect might be necessary during a Terry stop, but probable cause is required if the officer forces the suspect to move 2. Forced movement for identification purposes a. Florida v. Royer- Court found an arrest occurred when Royer was forcibly moved to a custodial atmosphere, purposes of extracting consent to search b. An officer can force a suspect to move for safety and security purposes without turning the situation into an arrest


3. Investigative techniques that are permissible within the confines of a Terry stop- some preliminary investigation is permissible within the confines of a Terry stop. Probable cause is required if the officers are using the stop for some purpose beyond that which justified the stop 4. Investigation of matters other than the reasonable suspicion that supported the stop- many courts have held that a Terry stop must end when the reason for the stop has come to an end 5. Time limits- courts have refused to set an actual time limit for when a Terry stop becomes an arrest, but generally, the longer the stop lasts the greater the risk 6. Use of force- the use of handcuffs do not necessarily mean that the suspect is under arrest. “Because safety may require the police to freeze temporarily a dangerous situation, the display of a firearm and the use of handcuffs may be a part of a reasonable Terry stop.” Hiibel v. Nevada (p. 272) FACTS: Hiibel was stopped for suspicion of being involved in a domestic assault. He refused to provide officers with identification. He was arrested for failing to give his ID. ISSUE: Can a person who is stopped with reasonable suspicion be criminalized for his failure to provide identification? HOLDING: Yes. RULE: An officer has a right to demand identification as a part of an investigation during a Terry stop. They can ask for identification. Detention of Property under Terry  Terry concerns seizures of the person, but its principles have been applied to property of seizures as well o Detention of property at one point may become an unreasonable seizure o If police hold property for too long, they may need probable cause to justify the seizure, not just reasonable suspicion.  US v. Place- had reasonable suspicion but not probable cause to believe defendant’s luggage contained drugs. The luggage was detained, but not searched. They ordered adrug sniffing dog (because this isn’t a search, so it wouldn’t matter if they didn’t have probable cause) but the dog was too far away. The problem was that it took too long- even though the luggage wasn’t searched, it was considered seized because they had it for too long o But Arizona v. Hicks (nice stereo in gross apartment)- not a frisk if its not motivated by officers safety. If they’re looking for evidence, it’s not a frisk.

Search Incident to Arrest  Trigger: A lawful, custodial arrest  Scope: An officer can search the person and the area within his wingspan The right to search is AUTOMATIC after the custodial arrest (US v. Robinson). It’s ok because if the arrest is lawful, the search is lawful.



FACTS: Petitioner was arrested in his home after being presented with a search warrant. Officers asked him if they could search the house and he said no; the officers said that because the arrest was lawful, they had a right to search the house. Police found evidence of robbery and petitioner was convicted. ISSUE: Can a warrantless search of the petitioner’s entire house be constitutionally justified as incident to the arrest? HOLDING: No. The search was wrongfully conducted REASONING: There is ample justification to allow a search of the area in the immediate control of the arrestee; police officers need to be protected from possible threats of attacks. However, this does not extend to the entire house. It is allowed because we want to prevent: 1. The destruction of evidence 2. The use of a weapon RULE: Incident to an arrest, police officers may search the person and the area in his immediate control without a search warrant; if the house is searched, the 4th Amendment is violated. Hypo Same facts as Chimel. But what if the police didn’t have probable cause for the arrest warrant? Then the search is out. A search can only be a valid search incident to arrest if it’s a valid arrest! NOTE: It’s critical to understand the differences between Terry stops and Searches Incident to Arrests:  The justification for a search incident to arrest is broader- they can look for weapons and evidence.  Under a Terry stop, and officer can only look for weapons. Consider if an exception applies to the warrant requirement and/or the probable cause requirement:  Terry v. Ohio- there are exceptions to both o warrant- no warrant is needed o probable cause- only reasonable suspicion, not probable cause, is needed  Search incident to arrest- there are exceptions to both o warrant- no warrant is needed and the PO can search automatically o probable cause- the officer may search without any justification. Timing of the grab area determination The determination of the grab area should be determined by where the defendant was standing at the time of the arrest, not where he is at the time of the search. Defendant is arrested in his kitchen, and later moved to the living room. The police can conduct a search of what was the wingspan of the kitchen. If they search before the arrest, they better be sure that they have probable cause for the arrest or they’ll lose the evidence! Washington v. Chrisman- officer spotted a young man who appeared to be underage carrying liquor. He asked for identification and the young man told him it was in his dorm room. The officer accompanied him to his room. The officer remained in the doorway and saw the roommate acting 28

nervous. The officer entered the room and noticed a pipe and marijuana. Both roommates were read their rights and the officer asked about the drugs  Court stated that the officer had a right to remain at the suspect’s elbow at all times, even though the officer did not think that the suspect was going to his dorm room to get a weapon or to destroy evidence. Temporal Limitations It usually does not matter if the search comes before the arrest! “Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.” Rawlings v. Kentucky Protective Sweeps Maryland v. Buie- a protective sweep is a “quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or other.”  Need reasonable suspicion that the area swept harbors an individual posing a danger to the officer or others.  Since a protective sweep is only looking for people, the scope of the protective sweep is limited to areas where a person could be found (not a nightstand drawer, altoid can, etc) “Arrest” Through citation Knowles v. Iowa- if an officer gives a defendant a ticket instead of arresting him, the officer cannot search! When people are issued a citation, they’re less likely to act as crazy as they might if they were arrested. Less risk to officer, although court says its always risky. Removal from the Arrest Scene Chambers v. Maroney- if a search is too removed from an arrest, it will not qualify under the search incident to arrest exception. Officers searched a car that had been impounded and brought to the police station after its occupants have been arrested. Searches of the Person Incident to Arrest UNITED STATES V. ROBINSON (p. 297) FACTS: Officer saw Robinson driving and believed he had probable cause to pull him over because only 4 days earlier, Robinson had a suspended permit. Robinson was pulled over and arrested Officer patted down Robinson and felt an object in defendants coat. He couldn’t tell what it was, so he removed it. It was a pack of cigarettes. Officer opened it and found capsules containing heroin. ISSUE: Did the officer violate the 4th Amendment by conducting a search of the defendant’s person incident to an arrest? REASONING: The Supreme Court stated that the authority to search a person incident to an arrest is not dependent on whether a court may later determine if there was a probability that weapons or other evidence may be found. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4th Amendment; that intrusion being lawful, a search incident to the arrest required no additional justification. 29

RULE: Incident to a lawful arrest, a police officer may conduct a search of the defendant’s person without violating the 4th Amendment. No justification is needed for the search because the defendant is already lawfully under arrest. It’s a bright line rule! TWO MAIN POINTS: 1. The right to a SIA of the person is AUTOMATIC. 2. At least regarding the search of the person, containers are included. ATWATER V. CITY OF LAGO VISTA (p. 301) (The Arrest Power Rule) FACTS: Defendant was driving with her two small children in the front seat of her truck without a seatbelt. An officer stopped her and placed her under arrest. Defendant claims that her arrest violated the 4th Amendment because she could not have faced jail time for the traffic offense; the most she could face was a fine. ISSUE: Can the police arrest a defendant for an offense that they could not face jail time for? HOLDING: Yes. REASONING: She was arrested for a violation. It was the common law rule that you can be arrested for a violation; all 50 states follow it. The fact that it’s not punishable by jail time doesn’t change the fact that it’s a misdemeanor. It’s all dependent on what the jurisdiction labels it. RULE: A person may be lawfully arrested for a violation even if the punishment for being found guilty of that violation does not include jail time. Hypo Same facts at Atwater, except the jurisdiction calls the crime of not wearing a seatbelt and not fastening children in a seatbelt in the front seat as a “civil violation.” The police officer arrests the defendant. Was her arrest a violation of the 4th Amendment?  Yes. She can’t be arrested if it’s not labeled a misdemeanor. The Court’s ruling depends on the label of the crime. Virginia v. Moore (p. 324)- considered whether a police officer violates the 4th Amendment by making an arrest on probable cause but prohibited by state law. Moore was arrested for driving with a suspended license. They searched him incident to arrest and found drugs. State law didn’t permit a custodial arrest for driving with a suspended license.  Supreme Court held that the search was valid under the 4th Amendment.  The line is whether it’s designated a crime; if it is, it’s arrestable even if the state legislature says it isn’t. Due to the common law rule that offenses are arrestable. o If it’s only punishable by fine but labeled a misdemeanor  still arrestable o If it violates state law to arrest for this offense, but it’s still labeled a violation  still arrestable under the 4th Amendment. The Arrest Power Rule Applied to Automobiles New York v. Belton (p. 309)- starts out as a bright line rule RULE: Officers are permitted to search the car of an arrestee incident to their arrest, and can open any containers that are found in the passenger compartment (DOES NOT INCLUDE THE TRUNK). The Court held that the passenger compartment of a car is comparable to the grab area.


Thornton v. United States (p. 310) RULE: The search power of Belton applies whenever the arrestee was a recent occupant of the car. Thornton was out of the car already at the time he was arrested, but the Court held that it was necessary to allow this rule, or defendants could escape the search of their car by immediately getting out of it before they were stopped by police. ARIZONA V. GANT (p. 312)- THE FINAL RULE- Limits the Arrest Power Rule after the arrest of a recent occupant. FACTS: Gant was arrested for driving with a suspended license. He was handcuffed and locked in the back of the patrol car when officers searched his car and found cocaine in the pocket of a jacket that was on his backseat. Officer conducted the search “because the law says we can do it.” ISSUE: When a person is handcuffed in the back of a patrol car, do the police have the right to search the defendant’s vehicle incident to arrest? HOLDING: No. REASONING: The whole purpose of the Chimel rule was that a person can either 1) pose a threat to the officer or others and/or 2) possibly destroy evidence. Therefore, officers had an automatic right to conduct a search incident to an arrest. In this case, the arrestee poses no threat because he is already secured. RULE: The Chimel rational authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. NOTE: Gant’s two rules (p. 314): police can conduct a vehicle search incident to arrest when: 1. The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; and 2. It’s reasonable to believe that the vehicle contains evidence of the crime of the offense of the arrest. The Court acknowledged that there will be situations where the offense that the defendant was arrested for will supply a basis for searching the passenger compartment. KNOWLES V. IOWA (p. 322) (SIA after a citation?) FACTS: Defendant was stopped for speeding and was given a ticket instead of being arrested. Under Iowa law, he could have been arrested for speeding. Officer conducted a search of defendant’s car. ISSUE: Can a police officer conduct a search incident to arrest of a defendant’s car when he only gave the defendant a ticket and didn’t arrest him? HOLDING: No. REASONING: There is a lesser concern for the officer’s safety when he issues a ticket as opposed to arresting someone; people may act crazy when they get arrested, but probably wouldn’t act too crazy when they get a ticket. RULE: A police office may not conduct a search incident to arrest of a recent occupant’s car when he issues the defendant a ticket instead of arresting him (if it was an arrestable offense). Pretext Stops and Arrests WHEN V. UNITED STATES (p. 325) 31

FACTS: Officers witnessed a truck with a few young people in it stopped at a stop sign for about 20 seconds. The driver seemed to be looking at the lap of the person in the passenger seat. The officers turned around to head back toward the truck and the truck immediately sped away at an “unreasonable” speed. They approached the car saw two large bags of cocaine. Passengers allege that the stop was not justified by PC or RS to believe that the petitoners engaged in illegal drug activity, and that the Officer’s ground for approaching the vehicle (traffic violations) was pretextual. ISSUE: Whether the temporary detention of a motorist who the police have probable cause to believe has commited a civil traffic violation is inconsistent with the 4th Amendment prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car for the traffic offense? HOLDING: No. It’s consistent with the 4th Amendment REASONING: The stop of the vehicle was consistent with the 4th Amendment because the officer did have probable cause to stop the vehicle for the traffic offense. Court looks too see if there was PC. The Court rejected petitioner’s argument that the court should look to see if an officer would have really stopped a vechicle in that situation. Court said as long as there is PC for the reason stopped, the stop is ok. RULE: As long as the officer has objective probable cause for an arrest, the arrest is lawful even if the officer had a pretext for stopping the defendant. Automobiles and other immovable objects Carroll v. United States (p. 342) FACTS: Officers stopped two men driving and searched their car, finding liquor. Issue was whether a warrant was needed to search their car. RULE: A warrant is not needed to search a stopped car. CHAMBERS V. MARONEY (p. 343) FACTS: Gas station was robbed by two men with guns. the men were later arrested and their car was driven to the police station, where it was searched. The search found guns and evidence of recent robberies. ISSUE: Did the search of the car at the police station violate the 4th Amendment? HOLDING: No. REASONING: Since the officers had PC to search the car at the time of the arrest, the search of the car that occurred later was not a violation of the 4th Amendment.

Coolidge v. New Hampshire (p. 347) FACTS: Defendants car was parked in his driveway at the time of his arrest. Officers seized it at searched it two days later at the police station, and two more times in the following months. RULE: In the absence of exigency, police may not search a car without obtaining a warrant. A car that is parked in a residential driveway is not considered “mobile.’ California v. Carney (p. 347)- the purposes of not requiring a warrant for a search of a car are 1. mobility 2. lower expectation of privacy in one’s car. 32

The “car” was a mobile home. The Court decided to treat it like other vehicles, despite the fact that it also functions as a home. To treat mobile homes differently would be difficult because Courts would have to look at the size of the vehicle in every case, and failure to apply the automobile exception ignores the fact that mobile homes are easily capable of moving, and they they are good instruments for drug activity. Cardwell v. Lewis (p. 346)- the fact that a car isn’t actually moving at the time it is seized is irrelevant. Lewis’ car was seized from a public lot, but the Court found that this didn’t have any significance. Moveable Containers- In and Out of Cars United States v. Chadwick (p. 349)- the mobility of a footlocker justified its seizure upon probable cause, but a warrant was required to search the locker unless exigent circumstances rendered a seizure insufficient to protect the interests (such as if the locker was ticking). United States v. Ross (p. 350)- Court upheld the warrantless search of a paper bag and pouch found during the search of a car. Officers can search containers in a car because “contraband goods are rarely strewn across the trunk or floor of a car.” CALIFORNIA V. ACEVEDO (p. 351) FACTS: An agent informed police that he seized a package containing marijuana which was shipped to Federal Express and was supposed to be delivered to a house. The police set up an interception. A police officer was at the post office and arrested the person who arrived to pick up the package. They followed the man and he took the package into his apartment. Acevedo arrived at the apartment. He left about 10 minutes later and was carrying a brown paper bag that looked full. He placed the bag in his trunk and started driving away. The officers stopped him and opened the trunk and the bag, finding marijuana. ISSUE: Is a warrant required to search a container placed in a car when the officer has probable cause to believe that contraband or evidence is contained there? HOLDING: No. RULE: Police may search an automobile and the containers within when they have probable cause to believe that there is contraband or evidence contained there. Hypo Police witness a drug deal on a public street. The defendant placed the drugs in her purse. Is there a way to search the purpose without getting a warrant?  There is probable cause to believe that she has drugs  Can arrest her, and then conduct a search incident to arrest. Probable cause to believe that drugs are in the purse does not mean by itself that the police can search the purse  If she went into a car, they can search because of the automobile exception Wyoming v. Houghton (p. 357) FACTS: Car pulled over for speeding and faulty brake light. Officer notices a syringe in the driver’s shirt pocket. PO ordered the two passengers out of the car and asked them for identification. While 33

conducting the search of the passenger compartment, PO found a bag that passenger respondent claimed as hers. Drugs were found in a container in the purse. RULE: Police officers with probable cause to search a car may inspect passengers belongings found in the car that are capable of concealing the object of the search. REASONING: If not, passengers could falsely claim that a bag/containers is their own to prevent the police from searching it. Drivers and passengers are often friends and engaged in a common enterprise, so this would pose a serious problem to police officers. Exigent Circumstances  The exigent circumstances exception excuses the officer from having to obtain a magistrate’s determination that probable cause exists; it does not permit a search in the absence of probable cause  The exigent circumstances exception applies equally to arrests and to searches

The Exigency Exceptions to the Warrant Requirement 1. Hot pursuit 2. Police/Public Safety 3. Destruction of Evidence Other Rules pertaining to Exigency  Impermissible created exigency  Prior opportunity to obtain a warrant 1. 

Hot Pursuit If officers are in “hot pursuit” of a suspect, this will excuse an arrest warrant where one would otherwise be required and a search warrant where a search of an area must be conducted in order to find and apprehend the suspect.

Warden v. Hayden (p. 362) FACTS: Officers pursued a robbery suspect into what was later determined to be his home. The suspect’s wife answered the door, and the police entered the home to search for the suspect. They also looked for weapons that he might have concealed during the pursuit. They found incriminating clothing in the washing machine. RULE: The “hot pursuit” doctrine is based on the premise that the suspect, knowing that he is being pursued, may seek to escape, destroy evidence, or create a threat to public safety. It follows that the “hot pursuit” doctrine cannot apply where the suspect is unaware that he is being pursued by police officers. United States v. Santana (p. 363) HELD: Officers were permitted to follow Santana into her house when she retreated under the doctrine of hot pursuit. 2.

Police and Public Safety 34

A warrant is excused if the delay in obtaining it would result in a significant risk of harm to the police or members of the public.

BRIGHAM CITY V. STUART (p. 364) FACTS: Officers responded to a call and saw two kids drinking beer in the backyard. They entered the yard and saw an altercation taking place in the home; four adults were attempting to restrain a juvelile. The juvenile broke free and punched one of the adults in the face, causing him to spit out blood. The police tried to announce before entering, but no one heard them. ISSUE: Whether police may enter a home without a warrant when they have an objectively reasonably basis for believing that an occupant is seriously injured or imminently threatened with such in injury. HOLDING: They may enter without a warrant. RULE: Police may enter a building without a warrant when they have an objectively reasonable basis to believe that an occupant is "seriously injured or threatened with such injury REASONING: “An action is reasonable under the 4th Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action.” 3.   

The Risk of Destruction of Evidence If evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is excused. The issue is usually whether there is an imminent risk of destruction of evidence under the facts presented. Arises frequently in drug cases

United States v. MacDonald (p. 366) FACTS: Agents were informed of a potential drug purchase. They arrived at the apartment and knocked and announced. They heard shuffling feet. They heard from another officer on a radio that suspects were trying to escape out of the bathroom window. They entered the apartment using a battering ram and arrested the occupants. They performed a security sweep and found drugs and weapons in plain view. RULE: Warrantless entry is justified when there is an objectively reasonable belief that evidence may be destroyed. NOTE: In Richards, the Court refused to adopt a bright line rule for drug cases, and instead held that a case-by-case approach must be used to determine if Richards v. Wisconsin (p. 369) RULE: The knock-and-announce requirement is excused if there is an imminent risk of destruction of evidence, and thus the exigent circumstances exception applies both to the warrant requirement itself and to the knock and announce requirement. The Seriousness of the Offense  Murders- Court rejected a “scene of the homicide” exception to the warrant requirement and stated the government must make a factual showing of exigent circumstances


Minor offenses- Court has held that entering a drunk suspect’s home in order to obtain a breathalyzer test from a suspect to not “lose the evidence of his sobriety” was not a proper justification for not obtaining a warrant.

Other Rules Pertaining to Exigency 1. Impermissibly created exigency  Analyzed in MacDonald (discussed above).  “exigent circumstances are not to be disregarded simply because the suspects chose to respond to the agents’ lawful conduct by attempting to escape, destroy evidence, or engage in any other unlawful activity.”  RULE: When law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances.

2. Prior Opportunity to Obtain a warrant  If an officer has prior knowledge that evidence may be destroyed at a particular time, he cannot claim that there were exigent circumstances Hypo Police know that the suspect, a suspected drug dealer, gets his house cleaned every Wednesday morning. They know that this will destroy forensic evidence. On Wednesday morning, they can’t enter his home without a warrant and claim that there were exigent circumstances if they knew this information previously. 3. Seizing Premises in the absence of exigent circumstances  Segura v. United States (p. 377)- officers had probable cause to believe that two individuals were trafficking drugs from their apartment. The agents met Segura in the lobby and took him up to his apartment and entered. They saw evidence of drug activity. Two officers waited in Segura’s apartment while another was getting a warrant. There was an administrative delay and it took 19 hours to get a warrant. o Majority reasoned that even if the warrantless entry of the premises was illegal, the later search conducted pursuant to the warrant was based on an independent legal source (the information they had before they seized the premises). o RULE: It is permissible to seize a premise for a reasonable time period while diligent efforts are being made to obtain a warrant. ILLINOIS V. McARTHUR (p. 378) FACTS: Officers accompanied a woman to remove her belongings from her house with her husband. She informed the police officers that they should check the trailer because her husband was hiding marijuana underneath the couch. Husband denied entry. One officer stayed and one went to get a warrant. The offier who stayed told the husband that he had to stay outside until


they got a warrant and went in together. Husband was only permitted to re-enter when accompanied by the officer. ISSUE: Did the police violate the 4th Amendment by prohibiting the husband from entering his home while the police went to obtain a warrant? HOLDING: No. REASONING: They had good reason to believe that the trailer contained drugs. They had an opportunity to speak with the wife about it. The had a good reason to believe that the husband would destroy the drugs if he was permitted to enter the premises alone. The police acted reasonably in protecting the husband’s privacy. They didn’t arrest him prior to obtaining the warrant and he was free to move around. RULE: Police officers may prohibit a suspect from entering their home alone while they wait to obtain a warrant. Special Needs Searches NEW JERSEY V. TLO (p. 395) FACTS: School official searched a teens bag on reasonable suspicion that there were cigarettes in her purse. RULE: Search is justified with only reasonable suspicion because the student has a diminished expectation of privacy in school and the school needs proper leeway in maintaining school discipline. No warrant is needed because school officials can’t be expected to obtain a judicial warrant to enforce school procedures. O’Connor v. Ortega- the school rule extends to probitioners. SAFFORD UNITED SCHOOL DISTRICT V. REDDING (p. 396) FACTS: School official conducted an intrusive search of a student because they believed she was hiding pills. RULE: A strip search is only reasonable with suspicion of danger or concealment. Hypo What if it was suspected that she was hiding cocaine? Might have been considered reasonable. They only had information that she was carrying high-dose Tylenol! Suspicionless searches Skinner v. Railway Labor Executives (p. 401) FACTS: A program required drug testing for all personnel that was involved in a train accident. HOLDING: Court upheld the program because it was an issue of danger RULE: Suspicionless searches may be conducted if there is a serious concern for danger TEST: The Court used a balancing test:  the method of collection was reasonable  lower expectations of privacy because it’s a pervasive industry  individual suspicion was impractical- it would lead to chaos! Drug-Testing of Employees 37

National Treasury Employees v. Von Raab (p. 403) FACTS: Employees that fell into three customs positions were required to submit to drug testing: those involving drug interdiction, those requiring an employee to carry a firearm, and those who handled classified documents. HOLDING: Court upheld urinalysis testing for the employees that fell into the first two categories Drug-Testing of Politicians CHANDLER V. MILLER (p. 406) FACTS: Georgia required political candidates to submit to drug testing. HOLDING: Drug testing requirement was rejected RULE: When there is no demonstrated drug problem, and no connection of the problem to the job, drug testing may not be imposed. Drug-Testing Students BOARD OF EDUCATION V. EARLS (p. 411) FACTS: School policy required all students participating in extra-curricular activities to submit to drug testing. HOLDING: Drug testing upheld REASONING: Students have a limited expectation of privacy. It was their choice to participate in extra-curricular activities. The test results weren’t turned over to law enforcement; it only prohibited the student from participating. Veronia v. Acton- upheld drug testing for student athletes. FERGUSON V. CITY OF CHARLESTON (p. 419) FACTS: There was an increase of pregnant woman with cocaine in their system. Women were to be tested if they met criteria. A chain of custody was to be maintained. HOLDING: Drug testing not upheld REASONING: The nurses were basically performing law enforcement functions. The purpose was actually crime control even though it seemed as if it was a safety concern; If the women didn’t clean up, they were prosecuted. Suspicionless safety searches in airports, subways, public buildings, etc.  Suspicionless searches are likely to be found reasonable because o the interest in protecting the safety of air travel was high o the state interest could not be accommodated by limiting the searches to those who were reasonably suspected (need to search random people because hijackers can steal other’s weapons) o searches are minimally intrusive because all passengers are searches and they are notified in advance and are free to chose another form of travel RULE FOR AIRPORT SCREENINGS: An airport screening is reasonable if: 1. It is no more intrusive than necessary, in light of current technology, to detect weapons and explosives; 38

2. It is confined in good faith to that purpose; 3. Passengers may avoid the search by electing not to fly Consent doesn’t need to be obtained, because then terrorists could keep trying to board until they found a terminal that was vulnerable. MacWade v. Kely (p. 426) FACTS: Searches of subway passengers in New York occurred shortly after the subway bombings in London and Madrid. HOLDING: Searches of subways for terrorist activities constitutes a special need. RULE: The program of suspicionless subway searches was reasonable given that: o the government interest in searching was immediate and substantial given the threats on the system and the actual bombings that occurred in Europe; o The searches were minimally intrusive because because had notice of them and were free to decline to be searched as long as they left the subway, and police only searched containers capable of carrying explosives. Roadblocks and Suspicionless Seizures Delaware v. Prouse (p. 428)- individual stops require suspicion. An automatic stop of an automobile to check the driver’s license and registration was not permitted when the driver didn’t do anything wrong. United States v. Martinez-Fuerte- suspicionless stop at a border road block is permissible; it’s necessary due to the strong state interest. MICHIGAN V. SITZ (p. 429) RULE: Temporary checkpoints to check for DUI are reasonable because they are minimally intrusive. REASONING: Court relied on a “meta-Terry” analysis instead of a “special needs” exception. They’re minimally intrusive because people have notice; they see the checkpoint as they’re driving. Dissent was concerned with the officer’s discretion of where they place the checkpoint and the time of day they do it. CITY OF INDIANAPOLIS V. EDMOND (p. 431) FACTS: Drug interdiction checkpoints. Police stop a certain number of vehicles. Officers can search only with consent or with a reasonable amount of suspicion. A canine was present, but that doesn’t matter because a dog sniff isn’t a search. HOLDING: Drug interdiction checkpoints are not permitted. REASONING: This wasn’t really out of a concern for safety; it was to find drugs. The purpose of the search matters; individualized suspicion is the heart of the 4th Amendment. Court seemed to hint that if drug searches are the secondary purpose it’s ok; can set up a DUI roadblock and have a dog there.


ILLINOIS V. LIDSTER (p. 439) FACTS: Police set up a checkpoint to obtain information about a hit and run. HOLDING: The checkpoint was upheld. REASONING: It was ok because it was minimally intrusive. It was done at the same time of day as the hit and run occurred, so there was reason to believe that some divers may have been on that road on the day of the accident. The stop’s objective was to obtain information about a specific crime, not just any random activity that might be occurring in the area. 

Inventories aims to protect the owner’s property and the police from false claims of lost property  protects the police and the public from hazardous items

South Dakota v. Opperman (p. 443) HOLDING: Court upheld a warrantless, suspicionless inventory search of a car impounded for a parking violation. REASONING: Court upheld the search based upon the bulleted points listed above. ILLINOIS V. LAFAYETTE (p. 444) FACTS: Moot Court case where the defendant was arrested for disturbing the peace from an altercation at a movie theatre. Police searched his shoulder bag at an inventory search at the police station and found drugs. HOLDING: The search was upheld REASONING: It was reasonable due to the bulleted interests listed above and “the reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means.” It’s unreasonable to make police officers always consider what the least intrusive means would be. RULE: Property carried by an arrestee may be searched as a part of an inventory search. Limits on Police Discretion Colorado v. Burbine (p. 445) FACTS: A police inventory procedure required officers to open containers that were found in a vehicle. HOLDING: The search of the containers within the vehicle were upheld. REASONING: The police were following the inventory procedure. It limited their discretion. The policy needs to be clear in order for it to be permissible for the police to follow it. Florida v. Wells (p. 446) FACTS: Police inventory procedure contained no policy for opening containers. HOLDING: The search was not upheld. REASONING: It gave police too much discretion. They weren’t following a policy, they were deciding on their own what to open. RULE: If an inventory search is unclear as to the procedure for opening containers, the police may not open containers as a part of a valid inventory search. 40

NOTE: The subjective intent of the officers is not relevant so long as they conduct a search according to a standardized inventory policy. If the officer is acting without guidelines, or if the officer disregards guidelines to obtain evidence, then the search cannot be justified as an inventory search. NOTE: Since the “less intrusive means” analysis was rejected, the court was not concerned with the fact that there were alternative methods that could be used to regulate inventories, such as allows cars to be driven away instead of impounding them. Searches and seizures that serve no inventory interest United States v. Best- in order to be valid, an inventory search must have an inventory purpose. Search prying open the defendant’s car door panel that found drugs was held not to be valid because it “did not serve the purpose of protecting the car and its contents.

Border Searches  No warrant or probable cause required Because border searches serve special needs, it is evaluated under the reasonableness clause of the 4th Amendment  Strong interest in preventing contraband from entering the country  Preventing illegal immigration  There are reduced expectations at the border

Warrantless suspicionless search of international mail United States v. Ramsey (p. 450) FACTS: Police had information that there was a drug operation that involved shipping heroin from overseas. HOLDING: The opening of the mail was upheld. REASONING: The mere fact that the mail came from out of the country made it reasonable to open it; they had information that mail coming from that country may contain heroin. It didn’t matter that no one was carrying it; it’s still coming in to the country. If not, people could avoid drug detection by sending it in the mail Routine Border Searches United States v. Charleus (2nd Cir.)- routine border searches of the personal belongings and effects of entrants may be conducted without regard to probable cause or reasonable suspicion” due to the important state interest in protecting the borders and the minimum expectation of privacy at borders. “Routine” vs. “Non-Routine” UNITED STATES V. FLORES-MONTANO (p. 452) FACTS: Respondent attempted to enter the US. A customs inspector conducted an inspection of his car and asked the respondent to leave the vehicle. The car was placed on a hydraulic lift and the gas tank was removed. Marijuana bricks were found. 41

ISSUE: Can a “non-routine” search be found reasonable in the absence of suspicion? HOLDING: Yes. REASONING: The Court criticized the use of the terms “routine” and “non-routine.” The Court has consistently held that searches made at the border are reasonable just on the fact that there is a strong interest in protecting the borders. RULE: No suspicion is needed for a search at the border, even if the search is non-routine. Searches of Persons at the Border  The level of suspicion required depends on the intrusiveness.  Non-routine border searches of people require some level of suspicion; routine border searches do not require any suspicion at all. United States v. Sanders (p. 456)- some level of suspicion was needed for a search of the cavity inside defendant’s artificial leg. United States v. Charleus (p. 456)- routine border search consisting of a pat-down of defendant did not require any suspicion. Search of laptops, cameras, reading materials, etc. at the border. United States v. Ickes (p. 457)- border patrol officers, without any suspicion, looked at the contents of defendant’s video camera and saw that he had a video of a ball boy at a tennis match. They then searched his laptop’s hard drive and found child pornography. Defendant claims that the search violated the 4th Amendment  Court held that the 4th Amendment was not violated because the search was no more intrusive than any other search of a person’s effects at a border. No suspicion is required to search a person’s laptop, electronics, or books at the border.  A laptop is considered a “container” for border search purposes. Courts have long held that searched of closed containers and their contents can be conducted at the border without particularized suspicion. Level of Suspicion required for non-routine border searches of persons United States v. Montoya de Hernandez (p. 458)- the detention of a traveler at the border beyond the scope of a routine customs search and inspection, 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.”  Traveler had 8 recent trips from Miami and LA. Carried $5,000 in cash in small bills. Didn’t have hotel arrangements in Colombia. Carry-on bag had 4 changes of cold weather clothes.  Based on these facts, the court held that it was sufficient to believe that Montoya was a “balloon swallower.” A strip search by a female officer showed that Montoya’s stomach was full. She was given the opportunity to return to Colombia on the next flight or to remain in detention until she produced a bowel movement. She wanted to leave, but no flight was available. She refused food and refused to use the bathroom. Inspectors obtained a warrant for a rectal exam. She claimed pregnancy; the test was negative. She later passed 88 balloons of cocaine through her system.  Search was upheld. these kind of searches naturally take more time.


Searches away from the border  The right to search at the border has been extended to the functional equivalent o Ex: On a flight from Mexico City to Denver, a search by customs officials at the Denver airport is considered a “border search.” Roving Border Patrol Almeida-Sanchez v. United States- defendant was stopped by roving patrol about 25 miles north of the Mexican border. The officers had no warrant or suspicion for the car. They found marijuana.  Court held that the search was unconstitutional  Roving patrol away from the border is treated with the same standards as any other  police activity; suspicionless searches and seizures are not permitted. United States v. Brignoni-Ponce- roving border patrols are subject to the same standards as other law enforcement stops under Terry. Border Searches in a Nutshell At the border or its functional equivalent  Routine searches- government doesn’t need to show anything to justify the search. It’s inherently reasonable due to the strong interests in protecting the borde.  Non-Routine searches o Government doesn’t need to show anything to justify a non-routine search of propery o Montoya de Hernandez- non-routine search of persons requires some individualized suspicion  Post-Montoya- lower court decisions require reasonable suspicion for nonroutine searches o Flores-Montano- non-routine search of property didn’t require any reasonable suspicion. The Court didn’t even want to make a distinction between “routine” and ‘non-routine.”  Qualification of Montoya de Hernandez- reasons that might support requirement of “some level of suspicion for “highly intrusive searches of the person” do not apply to searches of cars.  Even with cars, might be so destructive of their property interest that some individualized suspicion will be required.  Gas tank removal wasn’t considered “destructive.”  Everything seems to be without reasonable suspicion, except: o search of property when the property interest is destroyed o strip searches might require individualized suspicion. Away from the Border  An individual has more rights once they’re in the country because we can’t tell if they just came from out of the country.


o Therefore, regular rules apply! Suspicionless searches and seizures are not permitted. Roving patrol v. fixed checkpoint o Roving patrol  Almeida-Sanchez- probable cause to search  Brignoni-Ponce- reasonable suspicion to stop o Fixed Interior Checkpoint  US. V. Ortiz- need probable cause to search  Martinez-Fuerte- no probable cause or reasonable suspicion required to justify a stop

Consent Searches  Very significant in practice; it happens a lot!  Courts often treat consent as determinative  Police officer’s are usually trained to ask for consent even if they have probable cause, SIA, or anything else. It’s a safety net.  The government has the burden of proving that the person voluntarily consented to the search 1. Voluntary Consent Distinction between Voluntariness and Waiver Schneckloth v. Bustamonte (p. 462) FACTS: Defendant was stopped for driving without a headlight. He didn’t have ID. A passenger with ID said that the car was his brothers. Police asked if they can search, and the defendant replied “Sure, go ahead.” ISSUE: Do police need to tell a defendant that they do not have to consent to a search? HOLDING: No. REASONING: It may be one factor that is taken into account, but it’s not determinative. Similar to mere encounters: government doesn’t have to tell a suspect that he’s free to leave, but it always helps the case if the officer said it. RULE: The test for determining the voluntariness of a consent to search is whether it was voluntary under the totality of the circumstances. An officer does not need to inform a suspect that he has a right to refuse consent to a search NOTE: If the defendant does say no, that alone can’t be used as reasonable suspicion unless there’s something suspicion about the way they refused (nervous looking, sweating, looking at a closet/drawer etc.) The Impact of Custody  The fact that a defendant is in custody at the time he gives consent is in itself insufficient to show that the consent wasn’t voluntarily given. United States v. Watson


United States v. Mendenhall- officers spotted Mendenhall in an airport and suspected her of being a drug courier. They asked her to accompany them to a private room and she consented. After some questions, she agreed to a strip search and a search of her purse. Court held that she voluntarily consented; she was told twice that she was free to decline consent.

Factors considered in totality of the circumstanes None of them are dispositive:  defendant’s knowledge of the right to refuse  custodial status  show of force by officers, demeanor, etc.  number of officers present  repeated requests  characteristics of defendant (but see Zapata)

Hypo Police officer pulls defendant over for a seat belt violation. Police officer tells defendant that she can give consent to the search of her car, or he can arrest her and the car will be subjected to an inventory search. Is this ok?  He may be trying to trick, her but if the seat belt violation is arrestable, it’s ok! Officer is just stating the truth. He’s basically informing her of her options, not coercing her. Threats of Action  “If you don’t consent, I’ll just come back with a warrant.” May have induced the defendant to give consent, but it was not coercive under the 4th Amendment. It was just the truth! Lying  Consent is invalid when the police lie in telling the suspect that they are in the process of getting a warrant; it’s different from the above scenario because they were actually lying.  Consent invalid where police officers threatened with a warrant but actually had insufficient information to obtain a warrant. Ohio v. Robinette- a suspect was pulled over for speeding. Before he left, officer said, “One more question. Do you have any drugs or anything like that.” Defendant said no and officer asked to search. Defendant consented. Defendant argued that the search was illegal because he didn’t think he was “free to leave.”  Held: defendant consented. A person who is stopped does not need to be told that he is free to leave in order for the consent to be valid. 2. 

Actual Consent? Sometimes, the issue is if the defendant even consented.


United States v. Pierce (p. 468) FACTS: Officer said “Do you mind if I take a look?” and defendant replied “Sure.” He said he meant “sure I mind if you take a look.” HOLDING: The court found that Pierce consented. The crucial point was that Pierce didn’t do anything after the officer started to search. NOTE: The question is not whether the defendant consented subjectively, but whether his conduct would have caused a reasonable person to believe that he consented.  One court held that defendant’s action of stepping back into his apartment as officers entered was consent. 3. 

Third Party Consent Actual Authority- United States v. Matlock- Matlock was arrested in the front yard of a house. Mrs. Graff told the police that she shared the house with Matlock, and she consented to the search. o Warrantless search deemed reasonable if the consent came from someone with actual authority, even if it was someone other than the defendant.  Doesn’t matter whose name is on the lease; the Courts focus on the use of the property. Apparent Authority- Illinois v. Rodriguez- Rogriguez’s friend, who had unknowingly to the officers moved out of the apartment one month before the incident, consented to the search of the apartment. She had retained a key without permission. o Entry was valid as long as the officers had a reasonable belief that the friend had authority to consent, even if she didn’t have actual authority o Courts have held that a live-in babysitter does not have authority to give consent to search the whole house, and that officers cannot reasonably rely on that consent. o It’s ok for one co-inhabitant to give consent without the other one present because if you chose to live with someone, you have a lower expectation of privacy

GEORGIA V. RANDOLPH (p. 471) FACTS: Ralph and Janet were getting divorced. They both told police that the other was addicted to drugs. Janet told officers that there was evidence of Ralph’s drug use in the home. Ralph refused consent to search, but Janet consented. The officers searched based on Janet’s consent. ISSUE: May police search when one present occupant is refusing consent and the other one is granting consent? HOLDING: No. REASONING: Nothing suggests that one co-tenant has greater authority over another one. The consenting tenant can help the police obtain a warrant, but they cannot disregard the tenant who wishes to refuse consent. There were no exigent circumstances that would have permitted entry into the home. the evidence obtained cannot be used against Ralph because he expressly refused consent. RULE: A physically present inhabitant’s express refusal of consent to search is dispositive as to him, regardless of the consent of a fellow occupant.


Hypo Cops are about to knock on the door to get consent to search from Mrs. Smith. Mr. Smith pulls up. Cops arrest him for not wearing a seat belt. He’s no longer physically present. Can they then get consent from Mrs. Smith?  Yes. The arrest was lawful because they had probable cause. An objective standard is all that matters. If they unlawfully arrested him, it would be different. Hypo Cops observe the defendants home and wait until they see him go upstairs so that they know he won’t answer the door. They knock on the door and get consent from Mrs. Smith. Can they do this?  Yes. He wasn’t physically present, so consent from one co-occupant is sufficient. Hypo Mr. Smiths and Mrs. Smith both answer the door. Mr. Smith refuses consent, Mrs. Smith gives consent. The police find evidence implicating both. What result?  Mr. Smith can exclude the evidence that implicated him because his lack of consent is dispositive as to him.  Mrs. Smith gave consent, so that evidence can be used against her. Hypo Bert and Ernie share an apartment but have 2 separate bedrooms. Bert isn’t home and officers obtain consent to search from Ernie. Where can the officers search without violating the 4th Amendment?  Technically, Ernie can only give consent to search the common areas of the apartment (kitchen, living room, bathroom, etc.) The police can search these areas without violating the 4th Amendment. If they search Bert’s room, the search will violate the 4th Amendment because Ernie doesn’t have authority to consent to search Bert’s room and officers can reasonably expect that he does. Hypo Husband has a shed on private property. Wife has never gone in it. She consents to a search of the property. What will the government argue to get the evidence seized from the search into evidence?  Actual authority because most couples share the property. She didn’t limit the scope of the search  Alternative argument- apparent authority. It’s reasonable for the officers to think that the wife had authority to consent to the search of the send. Hypo Professor Burke’s dog walker answers the door and agrees to let the police search Burke’s house.  If they know he’s the dog walker, they can only search the limited areas he has access to  If they don’t know he’s the dog walker or if he lies and says he’s her husband, that’s apparent authority.


If he brings people over with him sometimes, Burke has a lower expectation of privacy and the police can search the limited areas. 

Scope of Consent to Search Based on what a person reasonably expects the police to look; they know that drugs are small, so they know they can be found in a lot of places. GENERAL RULE: A search beyond the scope of the consent granted cannot be justified as a consent search.

United States v. Blake (p. 478)- Blake consented to a search of his person. Seconds after receiving consent, officer reached into Blake’s pants and did a “frontal touching.” The Court held that the consent search was invalid because it was beyond the scope of Blake’s consent. Florida v. Jimeno (p. 479)- Court held that when the suspect gave consent to a search of his car, he also consented to a search of a paper bag lying on the floor of the car.  General consent to search a car includes consent to search containers in a car  A reasonable person knows that drugs are likely to be carried in some form of container. Ambiguity construed against the citizen  It is up to the citizen, not the officer, to clarify any ambiguity concerning the scope of consent.  United States v. Berke- consent to “looking” into a bag constituted consent to search the bag; the defendant didn’t ask what the officer meant by “Look”  United States v. Turner- Turner’s neighbor was attacked with a knife and there was blood on Turner’s windowsill. They thought it was possible that Turner was the assailant. They asked permission to search his home for any signs that the assailant was in Turner’s home hiding or for any evidence of his presence. Turner consented. An officer saw a picture on Turner’s computer screen that resembled the victim. Officer was curious and searched the hard drive. He found child pornography and Turner was prosecuted for that offense. o Court held that the search exceeded the scope of consent and that the files were illegally obtained. The consent to search including a consent to search only those places where a suspect might hide or where a suspect would have disposed of any evidence; this doesn’t include a computer. Withdrawing Consent  There is a right to revoke consent once it is given, but consent cannot be revoked after incriminating evidence is found.  If a defendant gives consent to search, and then revokes consent when an officer is about to enter a closet, the officer must STOP. o The revocation of consent on its own cannot provide reasonable suspicion.  If the defendant starts acting really nervous, keeps looking at the closet, then the police may have reasonable suspicion o Officers must have evidence independent of the withdrawal of consent


Plain View and Plain Touch  General Rule: if officers have a right o be in a particular place and come upon evidence that they have probable cause to believe is subject to seizure, they may seize it. Coolidge v. New Hampshire.  All it does is allow officers to seize; it doesn’t allow them to search any more than they were there for! HORTON V. CALIFORNIA (p. 336) FACTS: A police officer determined that there was probable cause to search petitioner’s home for proceeds of a robbery and weapons used in the robbery. the affidavit listed both, but the warrant only listed the proceeds. Officer entered the premises pursuant to the warrant and found weapons in plain view and seized them. RULE: An officer may seize contraband that he finds in plain view when executing a warrant. Hypo Defendant is arrested in his home. The police had probable cause but no warrant. They see drugs in the living room. Can the drugs be admitted under the plain view doctrine?  No! The point of plain view is that the officers were there lawfully. They weren’t here lawfully because they were in his home arresting the defendant without a warrant  Must observe from a lawful vantage point Hypo Officer is walking on a public sidewalk and sees marijuana plants in open view on a table in the defendant’s living room. Can the police officer go inside and seize the plants?  No! He’s allowed to see the plants from his vantage point, but he needs to obtain a warrant first; he can’t just walk into the house in the absence of exigent circumstances  Must have physical access to the thing seized Hypo Officer is in the defendants’ home to arrest him on an arrest warrant (he has reason to believe the defendant is at home). He sees clothes matching the description of a shooting that happened that morning (white shirt and jeans). He picks up the shirt and sees blood. Can the blood be admitted under the plain view doctrine?  The blood was not in plain view. There was no reason to think that the defendant was involved in the shooting; those clothes are common  Seizability must be readily apparent Three limitations on the plain view doctrine: 1. Must be standing from a lawful vantage point 2. Must have physical access to the thing seized 3. Seizability must be readily apparent


Arizona v. Hicks- nice stereo in a gross apartment. Stereo serial number was not in plain view when officer first saw it; he had to pick up the stereo to obtain the number. This amounted to a search. Plain Touch Doctrine  Minnesota v. Dickerson- officer conducting a Terry frisk felt a small, hard, pea-shape dobject in the suspect’s shirt pocked (he was just patting him down, not probing the object). o If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes it identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. o If an officer conducting a pat down feels an object that he immediately knows to be contraband, that object is seizable under the plain touch doctrine.


Evidence obtained in violation of the 4th Amendment must be excluded from trial  Weeks v. United States, 1914- exclusionary rule only applied to federal courts  Mapp v. Ohio, 1961- applied the exclusionary rule to the states  The purpose is to deter police from acting badly  Suppression should only apply if the 4th Amendment violation is sufficiently flagrant in order to have a deterrent effect. Exclusion can have harsh consequences, so the Court only wants to use it when it’s necessary. 1.

Limitations on Exclusion


Good Faith

UNITED STATES V. LEON (p. 511) FACTS: The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affadavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. ISSUE: Is there a “good faith” exception to the exclusionary rule? HOLDING: Yes. REASONING: The purpose is to deter police from acting badly. If they acted in good faith, there’s no deterrent function that can be served. RULE: If a warrant is later found to have lacked probable cause, the evidence can still be used against the defendant is the officer acted in good faith (if a reasonable officer on an objective standard would have thought that there was PC). If an officer submits an affidavit that a reasonable officer would not find PC, or if he acts on a warrant that clearly has no PC, the evidence is excluded. NOTE: What the Leon Court seems to mean is that in cases where some or most people would think that a warrant is invalid for lack of probable cause or otherwise, the good faith exception will


apply as long as reasonable minds can differ on the points. When no reasonable argument can be made that the warrant is valid, the good faith exception will not apply. Where the good faith exception doesn’t apply:  Police misconduct- no indicia of probable cause  Warrant clearly lacking in probable cause  Warrant by a judge that’s not neutral and detached (“rubber stamp”)  Affidavit includes false information- police officer can’t say he reasonable relied on the warrant if he knew the information in the affidavit was false  Warrant is facially deficient- doesn’t describe the things to be seized, place to be searched, etc. Applications of Leon Massachusetts v. Sheppard (p. 520)- officers had to change a form warrant. Court held that the warrant was valid because the officers took every step to ensure that it was done properly. United States v. Dahlman (p. 524)- warrant authorized the search of two “lots” of property. the officers searched the lots themselves and a cabin found on one of the lots. Court held that the warrant was defective because it should have specifically listed the cabin. However, the Court upheld the evidence obtained in the cabin under the good faith exception, because reasonable minds could differ about it. United States v. Johnson- warrant application had a checklist for why an informant was reliable; the officer checked “information has been corroborated by police officer” and “informant has not given false information in the past.” The informant had never given information before.  Court held that this didn’t amount to officer misrepresentation- the officer was just stating it literally. The Good Faith Exception and Warrantless Searches Illinois v. Krull (p. 530)- police officer relied on a statute. The Court said the good faith exception still applies. The purpose of exclusion is to deter; we can’t deter the legislature by offering exclusion to defendants. Arizona v. Evans (p. 531)- Good faith exception applies when officers reasonably rely on a warrant that had a judicial error on it. Officer had arrested defendant, but the warrant was actually quashed and remained in the system due to an error. HERRING V. UNITED STATES (p. 533) FACTS: Anderson learned that Herring drove to the Coffee County Sheriff’s Department to get something from his car that was impounded there. Anderson called the county’s warrant clerk to see if there were any open warrants for Herring. They discovered that there was a warrant for Herring issued by the Dale County PD. Herring was arrested, and within 15 minutes of his arrest it


was discovered that the warrant had been quashed 5 months earlier. SIA revealed drugs and a weapon. ISSUE: Does the good faith exception apply to a police error? HOLDING: Yes. REASONING: The good faith exception applies because it doesn’t appear that the PD was reckless in its record keeping; it was simply a clerical error which cannot be deterred. If they intentionally kept bad records to make arrests, that can be deterred by allowing the evidence to be excluded. The Court notes that the exclusionary rule is a serious remedy because it allows criminals to escape; it should only be used when necessary. RULE: The exclusionary rule does not apply to a search that resulted from isolated negligence B. 

Establishing a Personal 4th Amendment Interest In order for the defendant to be entitled to the exclusion of evidence, he must establish that his own personal rights were affected by the government’s search or seizure.

RAKAS V. ILLINOIS (p. 542) FACTS: Officers received a call concerning a robbery and they stopped a vehicle that matched the description. Petitioners were passengers in the car who did not own it. Found a box of rifle shells and a sawed-off rifle. Lower Court denied the motion to suppress finding that the petitioners lacked standing. SC stated that the petitioners had the burden of proof as to standing and that they failed to meet the burden of showing that they had ownership in the rifle or the bullets. ISSUE: Do the petitioners have standing to allege that their 4th Amendments were violated when they did not prove that the items seized were theirs and they did not own the car that was searched? HOLDING: No. REASONING: The Court seems to ground its answer based on the katz reasonable expectation of privacy theory. The Court’s reasoning in Jones that anyone who is lawfully in a place can challenge a search of that place is too broad. It would allow a person who has been in a place for 1 minute to contest a search. The MAIN POINT is that the capacity to claim the protection of the 4th Amendment does not depend upon a property right in the invaded place, but whether the person who claims the protection has a LEGITIMATE EXPECTATION OF PRIVACY IN THE INVADED PLACE. JONES CASE  : Discussed in Rakas. Jones was in a friends’ apartment when searched. Court held that Jones could challenge the search because  he was legitimately on the premises  doctrine of automatic standing: if you’re in possession and your stuff gets seized, you have standing. Rakas tried to rely on Jones, but the Court said he didn’t have standing. It wasn’t a possession case, and we don’t know if he was legitimately there. Automatic Standing Doctrine Overruled  United States v. Salucci (p. 547)- possession of a seized good should not be used as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area to be searched. The main point is the expectation of privacy, not the possession.’


Rawlings v. Kentucky (p. 547)- Rawlings was convicted of tracking in and possession of controlled substances. The substances were seized from a woman’s purse who was with Rawlings at the time of the search.  Court found that Rawlings had no right to object to the search of the purse because he didn’t have a legitimate expectation of privacy in another’s purse.  Ownership of the drugs was not enough to confer a right to consent to the search, because the main question is whether Rawlings had a legitimate expectation of privacy in the area that was to be searched. Disassociation from Property  when you disassociate from property, you lose standing to object to a search of that property. United States v. Boruff- rented a car but drove separately. Targets without standing United States v. Payner- investigation of Ameriacns doing business in Bahamian banks. Seized documents from a bank official. Payner had no right to object to the search of the briefcase because it wasn’t his. MINNESOTA V. CARTER (p. 548) FACTS: Carter and Johns used Thompson’s apartment to package cocaine. ISSUE: In accordance with the Fourth Amendment, do household visitors have the same protection against unreasonable searches and seizures as do residents or overnight social guests? HOLDING: No. REASONING: A person who is at another’s home for a limited amount of time does not have the same expectation of privacy as an overnight guest. The record seems to indicate that the only reason they were there was to package drugs. No relationship to establish a degree of acceptance in the household. Minnesota v. Olson- overnight guests have a reasonable expectation of privacy Cars, Passengers, and Drivers United States v. Carter (p. 554)- Carter was a passenger in Locklear’s car. Locklear denied consent to search but the officer did anyways. Court held that Carter had no expectation of privacy in the car. He had the right to challenge the seizure of his person that happened as a result of the car’s stop, but not the exclusion of the evidence. Co-conspirators do not have standing to challenge a search simply because they are a member of the conspiracy. C.  

Causation and Attenuation The exclusionary rule does not apply unless there is a substantial causal connection between the illegal activity and the evidence offered at trial “But for” causation- includes all derivative evidence


Attenuation- even if “but for” might be true, the chain of causation is too loosely connected that the government can still use the evidence.

BROWN V. ILLINOIS (p. 558) FACTS: Brown came home and found two officers in his apartment who were pointing guns at him and told Brown he was under arrest. He was read his Miranda warnings. He confessed to murder twice; 90 minutes after the arrest and seven hours after the arrest. Brown claims that his confessions must be excluded because he was arrested without probable cause. ISSUE: Whether a Miranda warning sufficiently breaks the causal chain between an illegal arrest and a confession; must a confession be excluded if the arrest was made without probable cause? HOLDING: No. The Miranda warning did not break the chain; the confession is excluded. REASONING: The Court used the Wong Sun test in analyzing this case. In Wong Sun, the Court held that the test is whether evidence that is being objected to has been come by exploitation of the illegality or by means sufficiently distinguishable to be purged of the primary taint. If the police obtained the evidence that is being objected to by some “sufficiently distinguishable” method, the evidence is not excluded. The Court said that the question of whether a confession was made by free will should be determined on a case-by-case basis. RULE: suppression of the confession is required unless the confession was an “act of free will sufficient to purge the primary taint of the unlawful invasion.”  The reading of Miranda warnings alone does not mean that a confession was voluntarily given

THE WONG SUN ANALYSIS:  Whether the evidence to which an objection is made has been come at by exploitation of that illegality or instead if it was obtained by means sufficiently distinguishable to be purged of the primary taint. o State v. Yee0 can’t say anything about illegally arresting Yee. But if they illegally searched his home, he can move to suppress the drugs found in his apartment. o State v. Wong Sun- his actions had nothing to do with his unlawful arrest; he confessed on his own accord. Therefore, confession isn’t excluded because it’s too attenuated. It’s removed from the taint of the illegal arrest.  Well-established precedent requires suppression of the confession unless that confession was an act of free will sufficient to purge the primary taint of the unlawful invasion Statements not Tainted by an Illegal Arrest Rawlings v. Kentucky- improper detention did not require suppression of statements made by Rawlings after evidence was discovered New York v. Harris (p. 563)- Harris was arrested in violation of Payton (in home without a warrant). He confessed. Court held that the confession didn’t need to be suppressed as a result of the Payton violation.  “The rule in Payton was designed to protect the physical integrity of the home, not to grant criminal suspects protection for statements made outside of their home where the police had probable cause to arrest the suspect.” 54

NOTE: Harris and Hudson v. Michigan seem to indicate that there needs to be a nexus between the evidence and the nature of the violation. HUDSON V. MICHIGAN (p. 564) FACTS: Police obtained a warrant to search Hudson’s home for drugs and weapons. they found both. The police knocked and announced and after 3-5 seconds of no response (not long enough!), they opened the door and entered the home. Trial Court granted the motion to suppress and the Appellate Court reversed. The knock and announce rule was violated. ISSUE: Does a knock and announce violation lead to exclusion? HOLDING: No. REASONING: The exclusionary rule is a drastic remedy that should only be used when the deterrence benefits outweigh the social costs. We don’t want to let criminals go free on technicalities unless it’s absolutely necessary in order to deter police. The purpose of the knock and announce rule is to 1) protect life and limb; 2) prevent the destruction of property; and 3) protect privacy and dignity. Excluding evidence does not serve any of these interests because the rule does not exist to allow criminals extra time to hide things or to escape. Consent as breaking the chain of causation  In cases where voluntary consent is claimed to break the chain of the illegal taint, three factors are used to determine if the consent was actually voluntary: 1. Temporal proximity of the illegal conduct and the consent; 2. The presence of intervening circumstances; 3. The purpose and flagrancy of the initial misconduct. D. 

Independent Source Evidence will not be excluded if it is obtained independently and without reliance on any illegal police activity

MURRAY V. UNITED STATES (p. 572) FACTS: Several of the agents converged on the South Boston warehouse and forced entry. They found the warehouse unoccupied, but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. They left without disturbing the bales, kept the warehouse under surveillance, and did not reenter it until they had a search warrant. In applying for the warrant, the agents did not mention the prior entry, and did not rely on any observations made during that entry. When the warrant was issued at 10:40p.m., approximately eight hours after the initial entry, the agents immediately reentered the warehouse ISSUE: Whether the independent source doctrine applies if evidence is initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery? HOLDING: The court held that the independent doctrine does apply if the evidence was seen during an unlawful search but is later obtained during a lawful search, as long as the evidence in question was not the basis for probable cause to issue the warrant.


REASONING: The illegally observed evidence was not used as a basis for probable cause. The goal is to put the government in the same position they would have been in if the illegal activity never occurred, not a worse position! RULE: The independent source doctrine applies to evidence initially discovered during an illegal search that is later obtained from independent activities untainted b the initial illegality.

E. 

Indevitable Discovery If police would have found the evidence anyways, the exclusionary rule does not apply.

Nix v. Williams- Christian burial case. The police and a search party were near the victim’s body, and were walking in that direction. Even though the defendant’s was tricked into telling officer’s the location of the body, the body could be used as evidence because they would have found the victim shortly, even if he didn’t tell them where the body was. Hypothetical inventory searches United States v. Andrade- drugs were admissible because they would have been found through a routine inventory search.

“We would have obtained a warrant” Courts generally reject the argument that the inevitable discovery exception is met when the police simply state that they had probable cause and would have obtained a warrant. “What makes a discovery ‘inevitable’ is not probable cause alone, but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search.”

NOTE: In establishing inevitability, Courts must look at what the police would have actually done, not what they could have done. NOTE: Illegally Obtained Evidence may be used for Impeachment Purposes Direct- Walder v. United States- Walder testified that he had never possessed or sold narcotics in his life. Supreme Court held that he was properly impeached with evidence of heroin that had been illegally seized from his home in an earlier, unrelated case. Court reasoned that Walder had “opened the door” to this evidence and that the exclusionary rule cannot be used as a license for perjury. Cross- United States v. Havens- testimony was impeached by the introduction of the illegally seized shirt. Supreme Court held that illegally obtained evidence can be used to impeach the defendant’s testimony no matter when it is elicted. Held no difference for these purposes between impeachment on direct and cross. But, can’t be used to impeach a defense witness. It can only be used to impeach the defendant himself! 2.

Procedural Aspects of the Exclusionary Rule


Challenging the Truthfulness of the Warrant Application Franks v. Delaware- Court held that a defendant has a limited right to attack the truthfulness of statements made in warrant applications. It’s difficult because the defendant must make a case that the officers preparing the application engaged in deliberate falsification or reckless disregard for the truth. Materiality Requirement An officer’s misstatement is not material under Franks is probable cause would exist even without the misstatement. United States v. Campbell- affidavit contained information from a fictitious informant. The court held that the affidavit was untainted because the information in the affidavit from three reliable informants was sufficient to establish probable cause. The officer’s fabrication constituted a harmless error. Challenging the Warrantless Search If no warrant is obtained, the government must justify the search. The state generally must prove by a preponderance of evidence that an exception to the warrant requirement is satisfied. The Suppression Hearing and judicial Review  the government can protect the identity of informants if the judge decides that the informants identity is needed, it is done in camera and the identity is sealed and only opened in the event of an appeal from the judge’s disposition of the motion. 

The ordinary rules of evidence don’t apply in a suppression hearing, except the rules of privilege.

Limitations on Use of Suppression Hearing Testimony at Trial Simmons v. United States- when a defendant testifies as to standing at a suppression hearing, the government may not use his testimony against him on the question of guilt of innocence. Appeals from a Motion to Suppress Three conditions must be met before the government can appeal a motion to suppress: 1. the government cannot appeal if the defendant has been put in jeopardy, within the meaning of the double jeopardy clause 2. an appeal cannot be taken for the purpose of delay 3. the suppressed evidence must be substantial proof of a fact material to the proceedings. Most jurisdictions deny the defendant the right to an immediate appeal on a suppression motion. This is because the defendant can appeal if he is convicted and can then raise the argument that the evidence should have been suppressed. 3.   

Situations where the Exclusionary Rule doesn’t apply Non-criminal proceedings Habeas corpus Non-trial criminal proceedings- probation hearings, bail hearings, grand jury testimony, etc.



And the exceptions discussed above: Good faith, lack of standing, causation and attenuation, independent source, inevitable discovery, etc.

SELF-INCRIMINATION AND CONFESSIONS The Privilege Against Self-Incrimination

The Griffin Rule (p. 615)- a defendant’s failure to take the stand cannot be used as information against him. Carter v. Kentucky- the judge must inform the jury that they cannot draw a negative inference from the defendant’s silence. United States v. Robinson- held that a prosecutor properly pointed out in closing argument that the defendant had an opportunity to testify; the prosecutor was responding to defense counsel’s argument that the defendant had not been permitted to explain his side of the story. 1.

Adverse Inferences at Sentencing

Mitchell v. United States (p. 616) Mitchell didn’t testify at her trial. Court considered this factor in determining her sentence.  Court held that a defendant can’t be subject to adverse inferences at a sentencing hearing.  It’s a part of the case, and therefore the privilege must be applied  The inference drawn could have had serious consequences; Mitchell could have been subjected to decades more of incarceration due to the adverse inference!  Dissent- adverse inferences don’t “compel” anyone to testify. The Constitution doesn’t give any indication that there is a prohibition on the use of the defendant’s silence as demeanor evidence. RULE: A defendant can not be subject to an adverse inference upon invoking the right to remain silent at a sentencing proceeding. In Civil cases- Baxter v. Palmigiano- the 5th Amendment doesn’t forbid inferences against parties to civil actions where they refuse to testify in response to probative evidence offered against them. Civil cases can be treated different than criminal cases because criminal cases have higher stakes. 2. 

Compulsion and the “Exculpatory No” Doctrine Brogan v. United States-Brogan was a union officer who accepted cash payments from JRD. Agents visited Brogan at his home and asked him questions. They asked petitioner if he received $ from JRD; he said no. They told Brogan that they knew he did because JRD records said they paid him. Petitioner was told that lying to federal agents was a crime and Brogan didn’t change his statements.


Brogan argued that he couldn’t be convicted because of the “exculpatory no” doctrine. Says that a simple denial of guilt does not fall within the statute he was charged with violating. o Scalia said the 5th Amendment doesn’t apply because Brogan wasn’t compelled to answer; he didn’t have to say anything, but he chose to lie. 3.

What does the 5th Amendment protect?

What is protected in a Nutshell:  5th Amendment protects compulsion to submit testimonial evidence o Testimonial evidence – if the person is forced to give information other than what a “witness” would provide, the 5th Amendment is inapplicable.  NOT included in the 5th Amendment  fingerprints  blood samples  line-ups/voice exemplars  handwriting samples

SCHMERBER V. CALIFORNIA (p. 622) FACTS: Petitioner was convicted of driving under the influence. He objected to a blood analysis test to test his BAC, but the officers compelled the blood test. Petitioner claims that the compelled test violated his 5th Amendment privilege against self-incrimination ISSUE: Did the blood test “compel” the defendant to “testify” against himself? HOLDING: No. REASONING: Both Federal and State courts have held that the 5th Amendment does not offer protection against compulsion to submit to fingerprinting, photographing, to write or speak for identification, to assume a stance, to walk, or to make a particular gesture. RULE: The privilege is a bar against compelling communications or testimony, but compulsion that makes a suspect or accused the source of real evidence does not violate the privilege against selfincrimination. United States v. Wade- requiring a suspect to participate in a line-up did not violate the 5th Amendment. Requiring him to speak didn’t violate the 5th either. Pennsylvania v. Mimms- Muniz was pulled over for driving drunk and arrested without Miranda warnings. He stumbled, spoke with slurred speech, and didn’t know the date of his 6th birthday.  Slurred speech was physical evidence- the relevance of the words themselves was separate from the manner in which he spoke. 5th Amendment was not violated by making him speak.


 

Physical tests of dexterity, such as making a person stand on one leg and count, are not selfincriminating and are not protected by the 5th Amendment. They don’t reveal a person’s subjective knowledge, only their physical characteristics. 6th Birthday question violated the 5th because it required his thoughts about an actual fact. This was testimony.

United States v. Doe- defendant’s compelled signature on a consent form, directing the release of records if any records existing, was not compelled testimony.  To be testimonial, the communication must be an express or implied assertion of fact that can be true or false. Psychological Evaluations Estelle v. Smith- a defendant who is to be interviewed by a government psychiatrist who will testify at sentencing has a right to know that what he says may be used against him in a sentencing proceeding. Drawing Inferences from refusing to produce non-testimonial evidence  A suspect has no right to refuse production of non-testimonial evidence. This is because it is not protected by the 5th Amendment because it is not considered self-incriminating. 4.

Procedural Aspects of Self-Incriminations

A. Determining the risk of incrimination HIIBEL V. 6TH JUDICIAL DISTRICT OF NEVADA (p. 643) FACTS: Defendants was convicted of refusing to give his name to a police officer during a lawful Terry stop. His refusal wasn’t based on any articulated real and appreciable fear that his name would be used to incriminate him. He just thought it wasn’t the officer’s business. ISSUE: Was the defendant protecting his right against self-incrimination by failing to give his name? REASONING: There may be situations where a name can incriminate a person in a crime, but this was not the case here. Giving a name is only likely to be incriminating in unusual circumstances. Even defendants who chose to take the stand and invoke their 5th Amendment right are still required to state their name when they answer a question. RULE: A defendant may not claim that he did not provide an officer with his name because he was protecting his right against self-incrimination. B. 

Immunity A person who receives immunity has no right to refuse to testify and may be punished by imprisonment for contempt. o The whole purpose of the 5th Amendment is to protect against self-incrimination, and when a person is granted immunity, they don’t have to be worried about being incriminated.


  

Transactional immunity- a broad guarantee against future prosecution is often called transactional immunity. No transaction about which a witness testifies can be the subject of a future prosecution against the witness. Kastigar v. United States- upheld transaction immunity, but stated that it’s not required. Proving that immunized testimony wasn’t used- government can show that the testimony wasn’t used by using a different attorney on the different

Impeachment and Perjury  Once immunity is granted, the testimony that is extracted from the witness is coerced and cannot be used as evidence against the witness in a subsequent case, even for impeachment purposes.  But it can be used in a case for perjury Confessions and Due Process 1.   

2. 

  

The Involuntariness Test Brown v. Mississippi- black man confessed to a murder that he didn’t commit after being brutalized by police. Court held that the confessions were invalid due to the method that was used to obtain it Spano v. New York- confession was inadmissible because defendant had requested counsel and police failed to get his lawyer GENERAL RULE: Even where Miranda and Messiah don’t apply, a confession is still excluded under the Due Process clause if it is obtained through police coercion. Modern Due Process Cases Involuntary confession- “any confession produced by interrogation pressures that a person of reasonable firmness, with some of the defendant’s characteristics, would not resist.” o Police techniques- do not render a confession involuntary. Some psychological pressure is ok because those techniques are designed to elicit a response. Use of police tactics alone is not sufficient to render a confession involuntary Deception and false promises by the policeo Guide to interrogation book- the techniques were permissible. Included lying to the suspect about the severity of the crime, showing fake sympathy, etc. False Documentary Evidence o Florida v. Cayward- police manufactured a false DNA report that was printed on a testing service’s stationary. Defendant confessed after he saw the report Honest promises vs. false promises o False promises of lenience are forbidden because it impedes the suspect from making a good choice. False promise will lead to an involuntary confession o Honest promises are considered ok and will not render a confession involuntary Miranda


“We hold that 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 self-incrimination is jeopardized  Pre-Miranda, we’d look at the totality of the circumstances to see if the statement was compelled.  Post-Miranda, a defendant shows that his statement was compelled simply by showing that Miranda warnings weren’t read to him. This one fact is all that’s needed.  If a defendant envokes his right to counsel, the police have to stop questioning. The rights are more than the notification of the rights, it’s the actual use of the rights that the suspect is informed of.  No distinction between the seriousness of the crime: Miranda warnings are necessary whether the suspect is being arrested for a felony or a misdemeanor  Remember: The trigger for Miranda is a custodial interrogation. If the defendant was not in custody and was not being interrogated, Miranda warnings need not be given 1. The Miranda Rule MIRANDA V. ARIZONA (p. 670) ISSUE: Does the police practice of interrogating individuals without notifiying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? HOLDING: Yes. REASONING: Police use interrogation tactics; this is ok, but we want to make sure that suspects are aware of their rights before they say anything. RULE: A prosecutor may not use statements made during a custodial interrogation of the : defendant unless the prosecutor demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination.  Question: Is the 5th Amendment violated only if the statement is used, or if the statement is just obtained? Justice Thomas seems to think that there’s only a 5th Amendment violation if the defendant’s non-Mirandized confession has been used. The police must: 1. Tell the suspect that he has a right to remain silent 2. Tell the suspect that anything he says may be used against him 3. Tell the suspect that they have a right to consult with an attorney and to have an attorney present during the interrogation 4. Tell the suspect that if they can’t afford an attorney, one will be appointed for them NOTE: The warnings do not need to given exactly like this. The main inquiry is whether the suspect has the gist of his rights. DICKERSON V. UNITED STATES (p. 697) FACTS: Dickerson was arrested for bank robbery and related offenses. He moved to suppress his confession on the grounds that he had not been read Miranda warnings. Court of Appeals held that Section 3501 was satisfied because Dickerson was not necessarily coerced. Congress had passed 3501 which stated that a confession is admissible if it is voluntarily given, and the voluntariness


should be determined based upon the circumstances surrounding the confession, including whether the defendant received warnings and counsel. Miranda warnings were not conclusive. Congress has the authority to modify or overrule any judicially created rules of evidence and procedure that are not required by the Constitution. Congress cannot legislatively supersede decisions of the Court that interpret and apply the Constitution. ISSUE: Whether the Miranda Court announced a Constitutional rule or merely exercised it’s supervisory authority to regulate evidence in the absence of congressional direction? HOLDING: Miranda announced a Constitutional rule. Congress was not able to overrule Miranda by 3501 because it was a constitutional rule. Prior to Miranda  The McNabb-Mallory Rule- suspects in custody were entitled to a prompt presentment before a magistrate  3501 sought to limit the McNabb-Mallory Rule as well. it stated that a confession made while under arrest “shall not be inadmissible solely because of delay in bringing such a person before a magistrate.” One case held that a six hour delay didn’t mean that the confession could still be used.  Corley v. United States-confessions made during periods of detention that violate the prompt presentment requirement of Rule 5(a) of the Federal Rules of Criminal Procedure remain generally inadmissible -- even voluntary ones.

2. 

Exceptions to Miranda Rule of Exclusion Impeachment of the Defendant-Witness o Harris v. New York- defendant made statements on direct that contradicted his statements made to police officers. On cross, he was asked about the contradictions. o RULE: Non-Mirandized statements can be used to IMPEACH the defendant-witness’ credibility, but cannot be used to find him guilty.  The problem is that it’ll be hard for a jury to disregard! o RULE: If the confession that was made was INVOLUNTARY, it CANNOT be used, even for impeachment purposes  So, a voluntary statement that is Miranda-defective can be used to impeach a defendant-witness; an involuntary statement that is Miranda-defective cannot be used for impeachment purposes. A defendant cannot be impeached with his prior silence. o Doyle v. United States- defendant was read his rights and chose to remain silent. Prosecutor can’t use this silence against him; the right to remain silent would be pointless if silence could be used against a person Pre-Arrest silence- pre-arrest silence can be used to impeach a defendant. o Jenkins v. US- defendants failure to speak before he was arrested and rights were read was properly used against him.

Miranda Exclusions in a Nutshell


   3.  


A Miranda violation excludes use of the confession from the case-in-chief Can use fruits and evidence found from the search Can use the Miranda defective confession to impeach Miranda and Habeas Corpus Reviews In a habeas corpus appeal, a defendant can’t raise a 4th Amendment issue if he had a chance at trial and chose not to. But a defendant CAN raise a 5th Amendment violation issue in a habeas corpus appeal even if he didn’t in trial Subsequent Confessions

Oregon v. Elstad (p. 705)- defendant’s first confession was Miranda-defective; officers obtained another Mirandized confession. Court held that the subsequent statement didn’t need to be suppressed as long as it was made knowingly and voluntarily MISSOURI V. SEIBERT (p. 706) FACTS: Woman convicted of second degree murder. Officers questioned her, obtained a confession, read her her rights, and then questioned her again This is known as the “two-stage interrogation” technique. The trial court suppressed the pre-warning statement but admitted the responses given after the rights were read. SC of Missouri reversed and held that the subsequent statements could not be used ISSUE: When the two-stage interrogation technique is used, can the government use the subsequent statements? HOLDING: The government can only use the statements if there has been ample time and other circumstances that show that the line of questioning is a different “interrogation.” RULE: In order to use a post-Mirandized confession, after eliciting an un-Mirandized confession, the police must give the defendant ample opportunity to consider the effect of the Miranda warnings. NOTE: There was no majority opinion in this case, so there is a debate about which view is controlling. Lower courts have held that Justice Kennedy’s view is controlling because 5 members of the court agreed. Therefore, the rule is usually applied like this:  A Miranda-defective confession will be admissible unless: 1. the officers acted in bad faith in not giving the warnings before the first confession; and 2. the second confession proceeded directly from the first.

5. 

Physical Evidence Derived from Miranda-defective confessions The exclusionary rule does not bar the exclusion of the physical fruits of a Mirandadefective confessions



FACTS: Officer arrested the defendant and attempted to read him his rights, but the defendant said he knew them. He told him that the gun was in his house. He was convicted for unlawful possession of a firearm. Defendant argues that the gun should be suppressed because it was discovered as a result of his Miranda-defective statement. ISSUE: Does physical evidence that is found as a result of a Miranda-defective statement need to be excluded? HOLDING: No. REASONING: The purpose of the Miranda rule is to prevent self-incrimination; the clause cannot be violated by the introduction of non-testimonial evidence. Police do not violate a suspect’s constitutional rights by failing to provide them with Miranda warnings; the constitutional violation only occurs when those unwarranted statements are admitted into evidence at trial. Since no violation occurs merely by not reading the warnings, there can be no deterrence function. Therefore, the exclusion of the Miranda-defective statement itself is sufficient, and the exclusion of physical evidence is not necessary. RULE: The exclusionary rule is not a remedy for physical evidence found as a result of a Mirandadefective confession. 6.  

The Emergency Exception to Miranda An officer does not need to Mirandize a defendant in an emergency situation o When there is an “overriding consideration for public safety” The confession obtained from the non-Mirandized defendant can be used in the government’s case-in-chief

Scope of the Public Safety Exception  There must be a genuine emergency situation  United States v. Mobley- no public safety exception applied when the defendant’s home was subjected to a protective sweep and the defendant was home alone; there was no immediate need to ask about a gun.  United States v. Carillo- defendant said he didn’t use drugs but he sold them. The statement was properly admitted because the officer testified that he had been poked by needles and suffered headaches from contacts with illegal drugs from suspects in the past. Custody, Interrogation, and Waiver  The trigger for Miranda is a custodial interrogation, so it must be determined if the suspect is actually in custody and actually being interrogated 1. Custody 1. Arrest is Custody  A person is in custody whenever he is deprived of his freedom of action in any significant way. o Orozco v. Texas- defendant was in custody when four armed policemen entered his bedroom at 4:00am and tried to elicit incriminating information from him.


 

o Beckwith v. United States- defendant was not in custody when IRS agents entered his house at 8pm after being invited in and sat with him at his dining room table. The Court stated that if the defendant is not in custody the inherently coercive atmosphere that triggers the need for Miranda warnings is not present. An objective test is used to see if the suspect is in custody o Stansbury v. California- Officers questioned Stansbury about a murder, thinking he was a potential witness. At some point during the questioning, the officer began to think that Stansbury was the one who committed the murder. At that point, Miranda warnings were given. Stansbury argued that the initial statements were not admissible because he was in custody at the time of the questioning ; the lower court held that he was not in custody until the officer’s suspicions shifted to him as a result of the questioning. The Supreme Court held that the officer’s subjective believe is irrelevant. Only if the officer’s views were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.  He wasn’t in custody because when he made the original statements, a reasonable person would have still believed that they were free to leave. Personal characteristics of the defendant are irrelevant in determining if he is in custody o Yarborough v. Alvarado- suspect’s age was not a relevant factor in determining if he was in custody. We want the focus to remain on an objective standard Prisoners are not automatically in custody o Mathis v. United States- defendant was in jail for an unrelated offense when IRS officers questioned him about tax fraud. His Miranda rights were not read. Court found that he was in custody at the time of the questioning and failure to give Miranda warnings violated his rights. o Subsequent cases have not interpreted Mathis to mean that a prisoner is always in custody; some cases have required an additional diminishment of freedom, beyond the imprisonment that was already present. Suspect is not necessarily in custody just because he’s an a police station when questioning occurred. o Oregon v. Mathiason- police officer told Mathiason over the phone that he wanted to discuss something with him and asked if they could meet somewhere. Mathiason had no preference, so the officer suggested he come to the station. When he arrived, he was told he wasn’t under arrest. Mathiason and the officer spoke in a room about a burglary that the officer was investigating. No Miranda warnings were given. He was told his fingerprints were found at the scene, which was a lie. Mathiason confessed and was allowed to leave the police station. Court held that he was not in custody; he voluntarily went to the station and was permitted to leave.


o California v. Beheler- extended the Mathiason rule and held that the suspect is not in custody when he agreed to accompany police officers to the station for questioning. Suspect is not necessarily in custody when he meets with a probation officer o Minnesota v. Murphy- the Court held that Miranda did not require the officer to warn Murphy of his rights prior to asking question about crimes be might have committed because he wasn’t arrested or otherwise in custody just because he had to meet with his officer. Warnings are not required simply because an investigation has focused on a suspect Terry stops do not place the person in custody for Miranda purposes o Berkemer v. McCarty- Terry stops are not custodial for Miranda purposes; officers to not need to give Miranda rights before questioning a Terry suspect. The rights only need to be read if the stop escalates to an arrest. o The law distinguishing Terry stops from arrests also determines whether custody exists under Miranda

2. Factors Used for Determining Custody  Whether the suspect was informed at the time of questioning that the questioning was voluntary  Whether the suspect possessed unrestrained freedom of movement under questioning  Whether the suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to questions  Whether strong arm techniques or deceptive strategies were used during the questioning  Whether the atmosphere of the questioning was police-dominated  Whether the suspect was placed under arrest at the termination of questioning 2.   

Interrogation Interrogation is actual questioning OR its functional equivalent (statements or actions that a police officer knows is reasonably likely to elicit an incriminating response) Police must be interrogating a suspect (and have the suspect in custody) before the need for Miranda warnings arises. Hypo o Man walks into a police station and confesses to a murder. At trial, he claims that his confession can’t be used against him because he wasn’t read his Miranda warnings. What result?  The confession can be used because Miranda wasn’t violated. In order for Miranda warnings to be necessary, the suspect must be IN CUSTODY and subjected to INTERROGATION. There was no interrogation here; he just walked in and confessed! An interrogation can also occur through police words or actions that police know may illicit a response; it doesn’t have to be ACTUAL questioning. See Innis.


1. In General RHODE ISLAND V. INNIS (p. 730) FACTS: Innis was a suspect in the murder of a cab driver. He was seen on the street and the officer arrested him; he was read Miranda warnings. Sergeant arrived and read warnings. The Captain arrived and Innis was again read his warnings. Respondent said he knew his rights and that he wanted to speak with a lawyer. On the way to the police station, officers in the car were talking about how they wish they knew where the gun was because there was a school for handicapped children nearby and they didn’t want the children to get hurt if they found the gun. Innis interrupted the conversation and said he’d tell them where it was. He moved to suppress the gun claiming that this was an interrogation and that it was improper because he was “interrogated” without getting to speak with a lawyer, as he requested. ISSUE: Was the respondent “interrogated,” therefore requiring Miranda warnings? HOLDING: No. He wasn’t interrogated and therefore no Miranda warnings had to be given. REASONING: Miranda stated that “interrogation” meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom to move. Court decided not to interpret Miranda so narrowly and held that the main concern in Miranda was the “interrogation environment.” An interrogation can occur through questioning or any words or actions of a police officer that the police will know may illicit a response. There was no need for the police to think that Innis would interrupt the conversation. They did not invite any response from the defendant. THE TEST: Whether an average suspect would have been concerned with the welfare of the children.  Most suspects wouldn’t have cared, so it’s irrelevant that Innis actually cares RULE: Police words and actions that the police know are likely to elicit an incriminating response is considered interrogation; interrogation is not limited to actual questioning. Application of Innis: Arizona v. Mauro  Arizona v. Mauro- Interrogation not found when officers listened to a conversation between defendant and his wife. Officers arrived at a store and Mauro freely admitted that he killed his son and directed officers to the body. He was arrested and given two set of Miranda warnings. After the second set, he indicated that he didn’t want to say anything else without speaking to a lawyer. Mrs. Mauro was being questioned separately. They asked to speak to each other and were told they only could if the police were able to listen; they were aware that a tape recorder was in the room. He said something incriminating. Court concluded that an interrogation did not occur. There was no evidence that the officers sent Mrs. Mauro in there to obtain evidence against her husband. “Officers do not interrogate a suspect simply by hoping that he will incriminate himself.” o Innis- “any words or actions from the police that the police should know are reasonably likely to elicit an incriminating response.” But the Court held that the action of letting him speak to his wife wasn’t interrogation; not sufficient.  United States v. Calisto- no interrogation found when officers told defendant that they’d also get an arrest warrant for th edefendant’s daughter. Drugs had been found in a bedroom where both men’s and women’s clothes were found. Defendant responded by saying “Keep her out of this, she ahs nothing to do with this stuff.” 68

o Not an interrogation because even though officers could have reasonably expected a protest from the defendant, they couldn’t reasonably expect him to incriminate himself. 2.   

3.  

Confronting the Suspect with Incriminating Evidence Edwards v. Arizona- Edwards was interrogated when officers played a recorded statement of Edwards’ associate that implicated Edwards in the crime. People v. Fero- interrogation occurred when officers placed the fruits of the crime in front of Fero’s jail cell. Some lower courts disagree with Edwards- held that presenting a suspect with incriminating evidence doesn’t amount to an interrogation Direct vs. Indirect Statements When the officers are speaking among themselves and the suspect starts talking, its less likely to be an interrogation When the officer speaks directly to the suspect, it’s more likely to be an interrogation


The “Booking Exception”- Questions Attendant to Custody ARE NOT INTERROGATIONS!  Pennsylvania v. Muniz- defendant’s responses to preliminary questions of his age and other information were admitted as evidence of drunkness. Miranda didn’t apply because questions about information needed for booking procedures do not require Miranda warnings.


Undercover Activity  Illinois v. Perkins- incriminating statement made to an undercover police officer was admissible. Miranda’s goal isn’t to protect suspects from bragging about their criminal activity to people they think are their cellmates. o Established a bright-line rule: If there is an undercover investigation, Miranda does not apply


Custodial Interrogation of Foreigners Abroad  Terrorist suspect was given Miranda warnings while being interrogated abroad. The Advice of Rights form states that he had a right to counsel if he were being questioned in the US. He was warned that because they were abroad, they couldn’t ensure that an attorney would be appointed for him.  Held that the confession was properly admitted. 

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Waiver Waiver of rights must be knowing and voluntary

Waiver and the Role of Counsel Silence after the rights are given does not equal a waiver


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The fact that a confession was eventually obtained does not mean that the suspect waived his rights North Carolina v. Butler- an express statement or a waiver isn’t required. Whether a suspect waived his rights will depend on the circumstances of the situation. The government needs to show sufficient evidence that the suspect understood his rights and voluntarily waived them. Knowing and Voluntary Moran v. Burbine- two requirements for a suspect to be found to have voluntarily waived his rights. 1. Must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. 2. Must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it Relationship of Waiver Standards to the Test for Voluntary Confessions A waiver that is validly made may still render a confession inadmissible if it is the result of overbearing police pressure after the waiver of rights. Colorado v. Connelly- coercive police activity is a prerequisite to a finding that a confession is involuntary. Understanding the Miranda Warnings A person with a low IQ or who is disabled may not have the capacity to give a valid waiver of rights A suspect who does not understand English may not be able to give a valid waiver SUBJECTIVE standard is used to determine if the suspect actually understood. Look at whether the suspect actually understood, not if we would think he understood. Conditional Waivers Connecticut v. Barrett- Barrett said he’d speak about a sexual assault, but did not want to give a written statement. Court held that he knowingly and voluntarily waived his Miranda rights. He was aware that the oral confession could have been used against him, and he chose to speak anyways. The Court said that if he was under the impression that his words could not be used, the waiver would have been invalid. But that wasn’t the case here! Scope of the Interrogation Spring was arrested for trying to sell stolen firearms. He was also suspected of murder. He was questioned about the firearms first and then a murder. He was read rights and signed a waiver. Spring argued that he didn’t waive his Miranda rights about the shooting because the agents didn’t warn him he would be asked about that. Court held that a suspect doesn’t need to be aware of all of the subjects that he may be questioned about. The waiver was held valid and the Court could use the statements about the shooting.


o Spring also argued that the police tricked him into answering questions about the shooting. The Court said they didn’t; the police didn’t misrepresent 7. 

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Admissibility of a Previous Confession Oregon v. Elstad- Elstad gave a Miranda defective confession. He was then read his rights, signed a waiver, and confessed again. He argued that the waiver was not made knowingly and intelligently. He said he thought that the prior confession could be used against him. o Court rejected his argument; the subsequent statement could be used against him. The fact that he confessed the second time only because the thought the first statements could be used is irrelevant. Efforts of a Lawyer Trying to Contact the Suspect Moran v. Burbine- Burbine waived his rights and confessed to murder. His sister attempted to retain a lawyer to represent him. The lawyer called the police station and was told that Burbine would not be questioned until the next day. His confession was still valid because he wasn’t aware of the attorney. It couldn’t have had any bearing on his decision to confess. “Once is it determined that a suspect’s decision not to rely on his rights was uncoerced . . . the waiver is valid as a matter of law.” The police’s deliberate action of preventing contact did not affect the validity of the waiver. Abstract Right to Counsel Connecticut v. Stoddard- a waiver cannot e knowing if a suspect is unaware of a lawyer’s attempt to contact him. Rejected Burbine. Waiver and the Invocation of the Right to Silence Michigan v. Mosley- defendant was arrested and chose to remain silent about a robbery charge. An hour later he was read Miranda rights again and answered questions about murder. The murder statements were used to convict him. The Court held that the admission of the second statements did not violate Miranda. Interrogation is not forever barred simply because the defendant invoked his right to silence at some point. The most important factor is whether the officers gave the suspect a “cooling off” period. Revocation of the Right of Silence o Davis v. United States- if the suspect makes an ambiguous invocation of the right to counsel, the police can continue interrogation. o United States v. Banks- officer’s don’t have to honor a defendants right to remain silent unless the defendant made it clear that he wished to remain silent. Invocation of the Right to Counsel Additional saeguards are necessary hen the accused asks for an attorney. Edwards v. Arizona Once an attorney is requested, police can’t interrogate further unless the attorney is there or if defendant initiates the conversation


Relationship between Edwards and Innis  Edwards holds that a suspect cannot waive the right to counsel after invoking it, unless he initiates the conversation. But if police-renewed conversation does not rise to the level of custodial interrogation, Miranda itself doesn’t apply to the resulting confession, and therefore Edwards doesn’t either  If the suspect invokes his right to counsel, Edwards holds that the police may not interrogate him while in custody unless the suspect initiates the conversation and then knowingly and voluntarily waives his rights. Defining Initiation  Oregon v. Bradshaw- a simple request (asking for water, etc.) will not be considered “initiating.” but when suspects asked “what’s going to happen to me now” and the officer and defendant had a conversation about where he was being taken and the charges against him, court found that he waived his right to counsel. He agreed to a lie detector test that the officer suggested.  Two step analysis to determine whether a suspect waives his rights after invoking the right to counsel” o The bright-line prophylactic safeguard of the suspect-initiation requirement; o Totality of the circumstances test of a knowing and voluntary waiver.  Burden remains on the prosecutor to show a waiver Ambiguous Invocation of the right to counsel  Defendant must clearly and unequivocally invoke the right to counsel in order to trigger Edwards protections Unrelated Crimes  Arizona v. Roberson- once a defendant invokes 5th Amendment rights, the police may not question him about ANY crime; the 5th Amendment is not offense specific Waiver After Speaking with Counsel  Minnick v. Mississippi- the protection of Edwards continues even after a suspect consults with an attorney; the police may still not question him. How long does the right to invoke last?  Maryland v. Shatzer- the right to envoke doesn’t last forever. He had a 2 week break between his arrest and questioning  Hypo- Defendant is arrest in NY and envokes right to counsel. He’s released. 10 days later, he’s arrested in NJ. He was Mirandized and answered questions. Is the waiver still valid? o Government will say that speaking to the police after being informed of his rights was a voluntary waiver o Defendant will say that it was less than 2 weeks and that coercion was still possible even though it was a different jurisdiction


Confessions and 6th Amendment Right to Counsel  6th Amendment only applies after formal proceedings have begun  The 6th Amendment prohibits a government official from “Deliberately eliciting” incriminating information from an “accused” in the absence of counsel or a waiver. MASSIAH V. UNITED STATES (p. 697) FACTS: Massiah was charged for possession of narcotics. He had retained a lawyer and was released on bail. His accomplice decided to cooperate with the police. Colson was wiretapped and obtained incriminating statements from Massiah, which were used to convict him. ISSUE: Was it proper to use a confession made by Massiah that was made while not in the presence of his attorney? HOLDING: No. REASONING: Unlike the 5th Amendment, Massiah’s goal isn’t to protect against police-created pressure to confess. Massiah wants the focus that once a defendant is indicted, the adversary system begins. It’s similar to the rule that once a client has an attorney, they should only be contacted through that attorney. BREWER V. WILLIAMS (p. 771) (Christian Burial Case) FACTS: Williams was arrested in Davenport on an arrest warrant for abduction. McKnight, his attorney in Des Moines, spoke with the police and told them that Williams was in Davenport and would be turning himself in to the police there. Williams also consulted with an attorney in Davenport, who told him not to speak with the police until he got to Des Moines and spoke with McKnight. The police were aware of this advice from both McKnight and Kelly. On the way to Des Moines, the officer told Williams how it would be good for the family to find their daughter, who was kidnapped on Christmas Eve, so that they could give her a proper Christian burial. Williams eventually led the police to the body. ISSUE: Did the police officer’s conversation with Williams in the car violate Williams’ right to counsel? HOLDING: Yes. RULE: Once adversary proceedings begin, the suspect’s right not to be contacted without his attorney present immediately is present. The 6th Amendment right to counsel attaches only after adversarial proceedings have begun. A. 

What is “deliberate elicitation? Bey v. Morton- Bey was on death row and confessed to the murders of two women (the crime he was on death row for) to a corrections officer that he befriended. Convictions were later reversed and a new trial occurred. Corrections officer testified. Court held that the 6th Amendment wasn’t violated because although the officer was a state official, his job was not to secure information from the defendant for the purpose of obtaining a conviction. Officer didn’t say anything about the confession for 5 years and didn’t want to testify. The state’s receipt of the confession was not by any deliberate action to obtain its use to convict him. Some commentators have implied that the difference is the officer’s intent.


Informants  The use of an informant constitutes deliberate elicitation  A “listening post” informant is not deliberate elicitation because they’re just listening.  Unlike the 5th Amendment, where the use of an informant is not interrogation. Waiver of 6th Amendment Protections Brewer v. Williams- held that the government must show more than the fact that the defendant received warnings and elected to speak; this alone is not sufficient to show that he waived his right to counsel. Patterson v. Illinois- Patterson argued that the Miranda warnings didn’t give him a full understanding of his right to counsel under the 6th amendment, and that his waiver should be deemed invalid. Court diagreed. Said that he didn’t offer any additional statements that would have helped him understand, and that the officers conveyed the sum and substance of the 6th Amendment to him. Distinguished from Faretta because the right to counsel at trial is more serious- it’s more serious to make sure that a defendant is aware of what he is waiving when he says he agrees to go pro se at trial. MONTEJO V. LOUISIANA (p. 788) FACTS: Monetejo didn’t expressly state that he wanted a lawyer, but the court appointed on for him. In the absence of counsel, he agreed to go with police officers on an excursion to locate the murder weapon. He wrote an inculpatory letter of apology to the victim’s widow. RULE: After a defendant envokes his 6th Amendment right to counsel, police may still approach the defendant to obtain a knowing and intelligent waiver. The 6th Amendment is violated if a waiver of counsel is coerced, but not if it is voluntary. NOTE: Edwards only applies to custodial interrogation. If D asks for a lawyer for the 6th Amendment, the police can still seek a waiver.



A. Right to Counsel at Identifications UNITED STATES V. WADE (p. 798) FACTS: Wade was charged with bank robbery. He was indicted and counsel was appointed for him. Before the trial, he was placed in a line-up for witness identification. The two people who were in the bank at the time of the robbery identified Wade. ISSUE: Must a pre-trial courtroom witness identification be excluded if the defendant’s attorney was not present at the time of the line-up? HOLDING: Yes. Line-up held improper because of the absence of counsel, substitute counsel, or waiver. REASONING: There is a potential bias with witness identifications. Defendants attorney should have been present. There was no evidence to indicate that calling the defense attorney would have prolonged the litigation RULE: The 6th Amendment guarantees a right to have counsel present at a post-indictment pretrial witness identification, and failure to provide counsel will result in the exclusion of the improperly obtained witness identification.


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Court Admissibility In Wade, the defendant was trying to get the in-court identification excluded (the jurors couldn’t have heard the out-of-court statement because it wasn’t admissible under the FRE at that time). What must the government show to use the in-court identification? o That it was obtained from an independent source (not a fruit of the poisonous tree) o The government can use the in-court identification if the W is identifying the D from their memory or parroting their out-of court line-up. The government can use this because it’s not tainted by the out-of-court line up.

The Wade Factors Use to see if the in-court statement was tainted by the out of court statement:  Opportunity to observe the suspect during the offense  Discrepancies between pre-line up description and defendant’s appearance.  Prior identifications of other suspects or failure to identify defendant in a prior opportunity  Picture of D prior to the line-up  Lapse of time between the offense and the line-up.  But in some situations (domestic violence), the V will know it’s the D. So should the line-up be excluded due to lack of counsel? NO- she was clearly able to identify him independently. GILBERT V. CALIFORNIA (p. 803) FACTS: Gilbert charged with armed robbery and murder of a police officer. The out-of-court identification was actually used in the prosecution’s case in chief under a hearsay exception. HOLDING: Court adopted a per se rule of exclusion. Said that it was necessary to respect the accused’s right to counsel. NOTE: The general rule is:  If the 6th Amendment applies: o out of court identification is automatically excluded is counsel wasn’t present. o in court identification can be used if it’s clear that the memory wasn’t tainted. 2.

Limits on the Right to Counsel at Identification Procedures

KIRBY V. ILLINOIS (p. 805) FACTS: Defendants were arrested for robbery. Victim identified them at the police station. No counsel was present. They were not indicted yet. After the identification, defendants were arrested. Victim testified at trial and also testified to the fact of the previous identification. ISSUE: Does the 6th Amendment right to have counsel present during an identification attach when the adversarial proceedings have not yet begun? HOLDING: No. REASONING: The Court has consistently held that the 6th Amendment right to counsel attaches when the adversarial proceedings begin. The defendants in this case were not indicted yet, and


therefore had no right to have counsel present for the identification. The rational behind Wade was that the defendant was entitled to have an attorney at any critical stage of the prosecution and that a post-indictment line-up is a critical stage. It can’t be said that the identification in this case was a critical stage of the prosecution because the prosecution hadn’t begun yet. RULE: A defendant only has a right to have counsel present at an identification if the adversarial proceedings have begun. United States v. Ash- defendant has no right to have counsel present at a photograph identification, whether conducted before or after indictment or formal charges. This is because photograph ID’s have less potential for bias, so it’s not considered as critical. See above. Two ways a defendant can challenge identification:  due process  6th Amendment Right to Counsel B.   

Due Process Limitations on Identification Evidence Suggestive identifications are ok when there’s a necessity (Garden City murder case; wife wasn’t going to live long On the scene identifications are ok when needed If the witness’ identification resulted from a different source than the suggestiveness, the ID is admissible. Neil v. Biggers- victim was with the D for 45 minutes, got a really good look at him; so it didn’t matter that the identification procedure was suggestive. She would have picked him anyways.

Example of a due process violation- 6 foot tall defendant placed in a line-up with two men who were 6 inches shorter. Only D was wearing clothes that matched the description of the perpetrator. Witness couldn’t make an ID; another line-up was conducted and D was the only one placed in the line-up that was in the original one. MANSON V. BRATHWAITE (p. 814) FACTS: Undercover narcotics officers purchased drugs from defendant. Observed him while he opened the door twice. Two days later, the undercover office was given a photo of the defendant, which was left on his desk by another officer. He identified the man in the photograph as the defendant. RULE: Police suggestiveness is only one factor that is used to determine if an identification should be excluded.  The opportunity to view  The degree of attention  The accuracy of the description  The witness’ level of capacity  The time between the crime and the confrontation RELIABILITY is the linchpin!


Example of a Due Process Violation  United States v. Eltayib- mid-Atlantic cocaine transfer. Witness barely saw the D because W had been hit in the head with a barrel of drugs and was semi-unconscious. D was the only one who fit the description. Voice Identifications  The Manson rule applies to voice identifications. Courts use the factors to see if the voice identification was tainted.




The Origins of the 6th Amendment Right to Counsel

POWELL V. ALABAMA (p. 832) (Right to Counsel in capital cases) FACTS: Defendants were convicted of rape. The trial happened very soon after the alleged attack. The defendants were subjected to an angry mob upon their arrival at the train station; militia was called to escort them. The trial court did not appoint counsel for the defendants. ISSUE: Whether the denial of assistance of counsel violates the due process clause of the 14th Amendment? HOLDING: Yes. REASONING: The whole situation took place in a vey hostile environment. The appointment of arraignment counsel was insufficient because it was not clear who was representing the defendants in trial. The Court didn’t find an “individual sense of duty” to represent the defendants. A layperson is in serious danger without counsel; they may be found guilty simply because they do not know how to prove their innocence. The Court knew that the defendants were young and uneducated, and should have appointed counsel. RULE: In a capital case, where the defendant is unable to employ counsel and cannot make his own defense, it is the duty or the court to assign counsel for him, whether defendant requests it or not. NOTE: The Court found 2 due process violations.  Failure to give defendants adequate time to obtain counsel  Failure of the Court to appoint counsel given the harsh circumstances of this case. BETTS V. BRADY (p. 835) overruled by Gideon v. Wainwright Defendant was charged of robbery. He was 43 and of average intelligence and had experience with the criminal justice system. The Court held that the Due Process clause required appointment of counsel only where “special circumstances” indicated that the defendant could not perform adequately on his own. The Court adopted a case-by-case approach to see if special circumstances were present. GIDEON V. WAINWRIGHT (p. 836) (Right to Counsel in felony cases) FACTS: Defendant requested counsel. The judge said that he could not appoint counsel because Florida State law said the Court can only appoint counsel to represent a defendant when the


defendant is charged with a Capital offense. Defendant replied that the Supreme Court stated that he was entitled to be represented by counsel. ISSUE: Should the holding of Betts v. Brady be reversed, allowing all criminal defendants the right to be appointed counsel? HOLDING: Yes. RULE: If a defendant cannot afford counsel, the Court must appoint counsel for him, regardless of the offense. ARGERSINGER V. HAMLIN (p. 839) RULE: A defendant also has a right to counsel in a misdemeanor case. 2. The Actual Imprisonment Rule for Misdemeanor Cases An indigent criminal defendant can only be sentenced to a term of imprisonment if the State has provided him with counsel. If defendant is only facing a fine, the State does not have to appoint counsel. If the statute says either fine or imprisonment, the Judge decides what the sentence will be, and that determines the right to counsel.  focuses on what punishment the government is seeking, not what the statute says he can be punished with.  if punishable by fine or imprisonment, judge makes a sentencing determination. This determines whether counsel needs to be appointed.  Dissent: wanted to make appointment of counsel necessary whenever imprisonment was authorized for an offense. Charge Maximum Sentence Actual Sentence Harrassment 6 months Probation Criminal Mischief 6 months 3 months Petty Larceny 3 months $50 Fine NOTE: This is usually on the bar exam because it’s strict memorization!

Right to Counsel? Yes Yes No

Nichols v. United States- an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction. 2.    

The Scope of the Right Right to counsel only applies during critical stages of litigation Preliminary hearings require counsel Photo ID’s, DNA testing are NOT CRITICAL The key inquiry is whether having an attorney there would make a difference.

Post-Trial Stages MEMPA V. RAY (p. 847) Defendant had a right to counsel whether it was labeled a revocation of probation hearing or a deferred sentencing. It would not have placed an unjust burden on the defense attorney.


Right to expert- defendant also has a right to an expert witness; rarely happens! There must be an absolute need for it. No right to counsel for probation hearings. Right to Counsel on Appeal  There’s no constitutional right to a criminal appeal, but all states allow it.  The 6th Amendment technically doesn’t reach appeals because it’s not a “criminal prosecution.” Usually, the due process clause of the 14th Amendment is relied on for appeals on criminal cases.  If an appellate court requires a transcript and the defendant is indigent, the fee for the record must be waived in the interest of justice.  If a state does allow one appeal of right, an attorney must be appointed under the 14th Amendment (not the 6th!)  Anders Brief- attorney files a paper outlining potential issues for the appellate court; their role is properly served if they fail to take a case because they think the appeal is unnecessary  Smith v. Robins- other states don’t require an Anders brief. The attorney can simply inform the defendant on how to do an appeal 

Effectiveness of Counsel Two-prong test: 1). Counsel’s performance must have been deficient; 2) Counsel’s deficient performance must have prejudiced the defendant

STRICKLAND V. WASHINGTON (p. 1284) FACTS: David Washington pleaded guilty to murder in a Florida state court. At sentencing, his attorney did not seek out character witnesses or request a psychiatric evaluation. Subsequently, the trial court sentenced Mr. Washington to death finding no mitigating circumstances to rule otherwise. After exhausting his state court remedies, Mr. Strickland sought habeas corpus relief in a Florida federal district court. He argued that his Sixth Amendment right was violated because he had ineffective assistance of counsel at sentencing. The district court denied the petition. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed. The court held that the Sixth Amendment accorded criminal defendants a right to counsel rendering "reasonably effective assistance given the totality of the circumstances." It then remanded the case to the district court to apply this standard and determine whether Mr. Washington's counsel was sufficiently prejudicial to justify the reversal of his sentence. ISSUE: What standard should be applied to determine whether a convicted person's Sixth Amendment right to counsel has been violated so as to require reversal of a conviction or to set aside a death sentence? RULE: There is a two-prong test for determining if counsel was ineffective: 1. Counsel’s performance must be deficient a. Must show that counsel’s representation fell below an objective standard of reasonableness.


i. Determined by looking at the totality of the circumstances surrounding the representation. ii. Court said it’s important to evaluate the performance from counsel’s perspective at that time. This is to overcome the “distorting effects of hindsight.” iii. There is a presumption that counsel’s conduct falls within the range of reasonable professional assistance. Defendant must overcome this assumption. 2. Counsel’s deficient performance prejudiced the defendant a. “But for” counsel’s deficient representation, the outcome would have been different. i. Prejudice is presumed in some situations: actual or constructive denial of counsel, state interference with counsel’s representation, counsel’s conflict of interest (Cuyler v. Sullivan) 1. The question is whether there is a reasonably probability that, absent the errors, the factfinder would have had a reasonable doubt respecting the defendant’s guilt. 2. Must consider the totality of the evidence that was before the judge or jury. 3. Note: If a defendant makes an insufficient showing on one of these prongs, the Court does not need to address the other. In general  Strategic decisions cannot be considered ineffective counsel; counsel may have a good reason for failing to give a closing argument, not objecting to the admission of certain evidence (“open door”), etc.  Defendant’s best chances for a good claim of cousel ineffectiveness: o Ignorance- if attorney fails to requeast discovery. Didn’t file for a motion to suppress because counsel didn’ know that a wrongful search occurred. D would have to show that the motion would have been granted and that it was reasonably likely that the motion would have exonerated him. o Failure to investigate- relying only on P’s files. Assessing Prejudice  Per se prejudice o not admitted to the bar o conflict of interest that the court was aware of  The Court can consider the strength of evidence against the D. The stronger the case is, the weaker D’s argument fo prejudice is.  Strength of evidence not presented may cause prejudice if it would have been a mitigating factor.  PREJUDICE IS NOT ALWAYS FOUND SIMPLY BECAUSE EFFECTIVE COUNSEL WOULD HAVE CHANGED THE OUTCOME! This would give D’s too much leeway with things he’s not entitled to.  “Significant” prejudice rejected: there’s no way to tell at what point an increased sentence would become significant. Right to Self-Representation


People may want to self-represent because of potential jury sympathy, lack of trust, sense of autonomy. Some defendants have to represent themselves if they can’t afford to pay counsel but aren’t indigent enough to qualify to appointed counsel.

FARETTA V. CALIFORNIA (p. 1381) FACTS: Counsel was appointed to Faretta over his objection. He expressly requested that he represent himself. The trial judge ruled that Faretta didn’t make a knowing and intelligent waiver and that he had no constitutional right to represent himself. ISSUE: Is there a constitutional right to self-representation? HOLDING: Yes. REASONING: Forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to. Both English and American colonial history support this. Surely the framers understood the importance of free choice. RULE: In order to represent himself, a defendant must make a knowing and intelligent waiver of his right to counsel. NOTE: Farretta rights can be LOST if defendant engages in crazy antics, delays court, etc. Competency to Waive the Right to Counsel and Proceed Pro Se Godinez v. Moran- the “rational understanding” test defines the competency to waive counsel and proceed to trial. The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. Indiana v. Edwards- defendant can be prohibited from representing himself at trial if he is not competent to conduct a trial. Knowing and Intelligent Waiver United States v. Robinson (p. 1387)- for a waiver to be “knowing and intelligent” the defendant must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of selfrepresentation. Faretta Warning? NO! Courts do not need to advise defendants of their right to proceed pro se. It doesn’t implicate fair trial concerns in the same way that the right to counsel does. Adams v. Carroll (p. 1391)- Adams made an unequivocal request to proceed pro se and that the conviction therefore must be reversed. United States v. David- right to self-representation does not extend to the death penalty phase. The defendants interests in self-representation at that stage is outweighed by the government interest in using the death penalty sparingly.


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