Criminal Procedure Notes

CRIMINAL PROCEDURE NOTES

01: 13 JUNE 2011

RIGHT TO COUNSEL UNDER THE 6th AMENDMENT

Breakdown of the Supreme Court:Side for Government: Roberts, Scalia, Alito & ThomasSide for the Defense: Sotomayor(?), Kagan(?), Ginsberg & BreyerCould go either way: KennedyHow a Case Gets to SC:Writ of Certiorari: State/Federal cases picked up by SCWrit of Habeus Corpus: two surnames (one of the names is the warden at the prison)

Terms:Per Curium: All 9 Justices agree & one writes the opinionCollateral Attack: Writ of Habeus Corpus - moves sideways from State to Federal court.

POWELLThe defendant has a fundamental right to counsel in federal cases. Appointed attorney must be given enough time to make an effective defenseBETTS v. BRADYCites Powell, but concludes the opposite - counsel is not a fundamental right.

Dissent: Black, Douglas & Murphy - Black: the 14th makes it applicable to the statesGIDEON v. WAINWRIGHTBlack: If it’s fundamental under the 14th (Due Process), it’s applicable to the states.

21 States wrote Amicus Briefs against Betts and for PowellLater applied to misdemeanors (anything facing jail time)

Ω SCOTT v. ILLINOIS (BAD CASE)Rule: Your right to counsel is only violated when you’re denied counsel & taken into custody.

BAD because if you didn’t get jail on your first offence, it’s pretty much mandatory on second offence/conviction. Might as well have been jailed on the first one

ALABAMA v. SHELTONSuspended sentence, denied counsel, violates probation, jail time - violates 6th Amendment

All unnecessary if Scott had been decided correctly.

Ω CURRENT “BRIGHT LINE” RULE:1. Must be charged with a crime.2. Were indigent3. Requested attorney 4. Denied attorney5. Convicted & Incarcerated

Then, you need not show prejudice to get a reversal.

U.S. v. GONZALEZ-LOPEZLater case expanded this right to include out-of-state counsel. If denied, they need not show prejudice to get a reversal

KIRBYRight to counsel only begins when the state begins “adversarial judicial process” - arraignment (lineup be-fore this didn’t require an attorney)

GOUVEIARight to counsel doesn’t attach until after arraignment. Miranda doesn’t trigger to right.“BRIGHT LINE” RULE FOR WHEN RIGHT TO COUNSEL KICKS IN1. First court appearance OR2. Indictment by grand jury


FARETTA∆ has the right to reject his right to counsel

MALLOY v. HOGANCarried right to counsel to the states.

LEGAL FALLACIESThere is nothing in the Bill of Rights that states that a jury must be comprised of twelve. That’s assumed, but the courts have decided that it’s no fewer than six.

The Constitution does not require a unanimous jury, either. For some states, it only requires a majority.

“Proof Beyond a Reasonable Doubt” isn’t in the Constitution, but it is inherent in Due Process.

ROTHGERYRight to counsel kicks in at first court appearance because he was looking at being held by the govern-mentΩ First court appearance triggers Right to CounselΩ Grand jury indictment also triggers

PEOPLE v. LOPEZCalifornia case that requires the judge to go through a dialogue with a defendant looking to represent him-self (see handout)

INDIANA v. EDWARDS∆ can be competent to stand trial but not competent enough to represent himself. SC allowed Indiana to set their own standard for self-representation

RULE∆ can refuse counsel if he does so knowingly and willingly and has been found competent to stand trial

STRICKLAND“Ineffective assistance of counsel” (IAC) doesn’t necessarily play if the attorney made a strategy call that ∆ didn’t like(Fun fact: Strickland was the warden in this habeus case. ∆’s name was Washington)O’Conner said to show IAC, ∆ must show: 1. Must show that counsel representation fell below an objective standard of reasonableness2. Must show prejudice - a reasonable probability that, but for professional errors, there would have

been a different result in the caseNote: There is a significant difference between claiming IAC (must show prejudice) & Denial of Counsel 6th Amendment violation (no prejudice)

ROMPILLACounsel accused of missing potentially mitigating information in ∆’s file (5-4) was IAC (Extremely specula-tive).

CRONIC2 Ways to get IAC (must show prejudice) into 6th Amendment Denial of Counsel (prejudice is presumed) category: 1. if appointed counsel doesn’t have time to prepare an effective defence, it’s the same as not hav-

ing counsel2. “Sleeping Lawyer” might as well not be there at all (very rare)

“RIGHT TO COUNSEL” ON THE APPELLATE LEVEL


DOUGLASGuarantees counsel on appeal

ROSSSC says the free attorney is only good for the first appeal (practical limit)

HALBERTGuilty plea still entitled to an attorney for the appeal

GILBERT∆ entitled to free transcript for appeal (transcript necessary for the appeal)

AKERight to Assistance of Expert Witness: ∆ is entitled to a psychiatrist

MEMPARight to Counsel in Quasi-Criminal Proceedings: Suspended sentence revoked, right to attorney at de-ferred sentencing

MORRISSEYRight to Minimum Due Process: Parolee has a right to be informed about alleged violationHas the right to see documentation and a hearing

GAGNONProbationer/Parolee attorney exceptions:1. Claims he didn’t commit alleged parole violation (new crime)2. There are substantial reasons which justified/mitigated the violation and make revocation inappro-

priate and that the reasons are complex or otherwise difficult to develop or present

GAULTJuvenile proceeding, even though it’s characterized as a “delinquency case”, he is still entitled to an attor-ney because it’s a criminal proceeding where he is facing confinement

MIDDENDORFIn a Summary Court Martial, you’re not entitled to attorney even though you could get 30 days. On in General CM

LASSITERDependency case, unfit home - no attorney for parents because the focus is the kids (rescuing them) be-cause the kids/parents aren’t being tried for a crime

03: 21 JUNE 2011

NEW CASE: J.D.B. 20115-4 Decision: FOR: Sotomayor, Kennedy, Ginsberg, Breyer, KaganAGAINST: Alito, Roberts, Scalia, ThomasHINT: Address your argument to KennedyMBE STUDY GUIDENot one he recommends, but the review session will have practice questions. STUDY THE RULES!!

REVIEW6th Amendment Right to Counsel:Entitled to Counsel (+1 appeal)Entitled to Transcripts


Entitled to Professional Witness

Triggered by 1.) First Court Appearance 2.) Grand Jury Hearing

MIRANDA DOES NOT TRIGGER RIGHT TO COUNSEL!

Can decline Right to Counsel if CT find waiver is intelligently and knowingly made AND that he's mentally competent to represent himself

IAC: Has a right to the attorney being EFFECTIVE (STRICKLAND). If performance was deficient by ob-jective standard, MUST SHOW PREJUDICE (prove the outcome would have been different if counsel was effective). Otherwise, it's the same as not even having counsel. POWELL two days is NOT enough time to prepare an effective defense, therefor, it's the same as being denied 6th Amendment Counsel.

Right to Counsel in Quasi: no right to counsel in parole hearing. Juvenile proceedings are so similar to criminal trial that they have a Right to Counsel. Special/General Court Martial: Absolute Right to Counsel (not in Summary CM, though)"Unfit Home" are civil proceedings are not criminal, so you're not entitled to counsel

SEARCH & SEIZURE

WOLF (EXCLUSIONARY RULE) 1949Back-alley abortions. Established that Items seized in warrantless search of a person/premises are not permitted in federal court (Weeks Doctrine). Civil remedies are ineffective because damages are usually nominal and juries are reluctant to award to the convicted. Society has to accept the fact that some guilty people because of 4th Amendment enforcement. However, this was held only for federal courts. (30% of States were opposed to Exclusionary Rule)

MAPPS (EXCLUSIONARY RULE) 1961Made Exclusionary Rule applicable to the States. Excludes from a criminal trial illegally obtained evidence if that evidence was acquired in violation of the 4th Amendment.

CALANDRA (E.R. IN QUASI-CRIMINAL PROCEEDINGS) 1974Exclusionary Rule does not apply in Grand Jury testimony.

SCOTT (E.R. IN QUASI-CRIMINAL PROCEEDINGS) 1998Exclusionary Rule does not apply to parole revocation/probation hearings.

'58 PLYMOTH (E.R. IN QUASI-CRIMINAL PROCEEDINGS) 1965If vehicle seized in a criminal case (drugs found in car) where evidence was illegally obtained, because the seizure was linked to inadmissible evidence, Exclusionary Rule applies.

JANIS 1976Cash seizure is subject to tax action (civil, not criminal). Exclusionary Rule doesn't apply.

LOPEZ-MENDEZ 1984Same inadmissible evidence in criminal trial can be used in a deportation hearings (Illegal Alien). Exclu-sionary Rule doesn't apply.

THE EXCLUSIONARY RULE IS DESIGNED TO PROTECT US FROM GOVERNMENT4th Amendment ONLY applies to government agents, not to private citizens (burglar finds pot plants, tells cops - evidence is admissible).


LEON ("GOOD FAITH" EXCEPTION TO EXCLUSIONARY RULE) 1984If police are acting on a warrant they believe to be accurate, the Exclusionary Rule doesn't apply. Not necessarily a "bright line" rule - EXCEPTION: If affidavit is skimpy or full of shit, even if the judge signed the warrant, "good faith" doesn't apply. Reliance on probable-cause determination must be reasonable.

SHEPPARD 1984 Homicide search, but they only have a modified drug warrant (left in the bit about it only being about a drug search) - warrant was defective, but the cop relied on the judge in good faith. Exclusionary Rule doesn't apply.

GROHGlaring error in warrant means "good faith" doesn't apply. Exclusionary Rule applies.

KRULLOfficer relies on a warrantless search statute currently on the books, but statute is repealed - reliance on law as it existed at the time constitutes "good faith". Exclusionary Rule doesn't apply.

EVANS (ERROR OF NON-POLICE) 1995Clerk doesn't update recalled warrant, cop pulls guy over and finds drugs in arrest - "Good Faith" applies because the error was not made by law enforcement. Exclusion Rule doesn't apply.

HERRINGFaulty police record keeping (recalled warrant) leads to arrest/seizure. Exclusionary Rule doesn't apply because the arresting officer operated in "good faith". (Bad case) Muir's Opinion: Encourages sloppy record keeping by police.

VERDUGO-URQUIDEZ (EVIDENCE OBTAINED IN MEXICO)"The People" are protected, but they must be American citizens. Therefore, evidence obtained (even if il-legal by U.S. standards) is permissible. Exclusionary Rule doesn't apply, but it should.

WHAT DOES THE 4th AMENDMENT PROTECT?

√ KATZ ("REASONABLE EXPECTATIONS OF PRIVACY") 1967Phone booth case. Four important holdings: 1.) You don't need to physically trespass to violate 4th Amendment. 2.) The 4th Amendment protects intangible things like sound waves. 3.) It provides a "rea-sonable expectation of privacy" (REOP). 4.) It protects people, not places, but it protects people IN places. (Remember the name of this case for the test.)

GREENWOOD (REOP) 1988Is there an reasonable expectation of privacy in garbage? Maybe. It depends where it is (house & cur-tilage-yes; street side-probably not). Objective, reasonable standard in evaluating REOP.

SODAL 1992No search if you seize the whole house? No, 4th Amendment protects possessions as well.

PLACE 19834th Amendment protects Freedom of Movement (detained with no lawful right to do so).

SEE 19674th Amendment also protects places of business


WHAT DOESN'T THE 4th AMENDMENT PROTECT?

OLIVER (OPEN FIELDS AND SKIES) 1984House is protected, but the yard may not be. Court doesn't say where to draw the line. Curtilage has 4 factours: proximity of the area near the house, whether the are is within an enclosure surrounding the home, nature of the uses to which the area is pit, and the steps taken by the resident to protect the are from observation by people passing by.

RILEY (SKIES) 1989Police helicopter observing at 400'. Flying at such a low altitude might be a violation of 4th Amendment even if it's within FAA rules. Bright line rule: 4th Amendment doesn't protect your airspace, but you could sue the cops for trespass.

HUDSON (DETENTION FACILITIES) 1984There is no 4th Amendment protection in a jail cell, prison cell or the back of a patrol car.

CARDWELL (EXTERIOR OF VEHICLES) 1974Exterior is NOT protected, including VIN, if it's visible from outside.

PLACE (DOG SNIFF/BAGS)Exterior of bag not protected.

KARO & KNOTTSBeepers are acceptable. GPS devices are still questionable. (3 month GPS monitoring is too invasive)

BOND (SQUEEZES) 2000Squeezing exterior to determine contents is an illegal search.

SMITH (PEN REGISTER) 1979A log of incoming & outgoing calls does not violate 4th Amendment.

QUON (TEXT MESSAGES) 2010Review of text messages in government-issued phone doesn't violate 4th Amendment

DOW CHEMICAL (SENSORY ENHANCING EQUIPMENT) 1986Satellite imagery requires sensory enhancing equipment that, if available to the public (even if it's cost-prohibitive) and doesn't penetrate the interior, it does NOT violate the 4th Amendment.

KYLLO (THERMAL IMAGING) 2001As long as it doesn't penetrate the interior , thermal imaging does NOT violate.

04: 23 JUNE 2011

FINAL EXAMThursday 04 AugustFull Course Review: 28 July (last class)

DRAPER (SUPPORT WARRANTLESS SEARCH BASED ON INFORMANT INFO) '58Probable cause can based on hearsay (paid informant's statement) if it is reliable & trustworthy. 1. Agent has used informant before and never been given false information (credibility track record). 2. Needs police corroboration for predictive behavior.


√ AGUILAR (SUPPORT WARRANT BASED ON INFORMANT INFO) 1964"Barebones Warrant" (without hard facts to back it up) is deficient. No police legwork to verify.2 Prong Test for Informant Info-based Warrant: 1. Veracity (credibility) of informant2. What is the basis (source) of informant's knowledge? (Off-hand remark at a bar?)

√ SPINELLI 19692 Prongs can be supported by police legwork (corroboration).√ "Aguilar-Spinelli" 2-Pronged Test: V+B+C

√ GATES 1983Established "totality of circumstances" approach that replaced Aguilar-Spinelli 2 Prong Test. (Basically, you still evaluate V+B+C, but you don't reference "Prongs" anymore.) The evidence sought to be seized is CURRENTLY at the place to be searched (10 days).

If the "whole picture" (totality of circumstances) suggests that the informant info, coupled with the police efforts to corroborate info, is reliable and trustworthy, the the Court should approve issuing the search warrant (fair probability that the contraband or evidence sought to be seized is currently at the place to be searched).

Veracity: What is known of the informant's credibility as the reporter of information (motive to lie? past track record of accurate info? anonymous?

Basis of Knowledge: What underlying facts does the informant provide from which the magistrate can conclude the informant has some firsthand knowledge of the target's activity is related to crime

Corroborate: What efforts are made by the police to check the information supplied (surveillance, record checks, etc.)

The Supreme Courts defines the minimum standard of Due Process, but the States are able to set their own higher standards of Due Process, provided it's in their state constitution.

UPTON 1984"Totality of Circumstances" rejected by Massachusetts because their standard, set in their state constitu-tion (Article 14), is a higher Due Process standard.

FRANKS 1978If you can show that the cop deliberately lied in the affidavit (reckless disregard for the truth), but if you delete that from the affidavit and probable cause still holds up, the lie is inconsequential. It must have a bearing on probable cause to invalidate a warrant. (Criticism: allows cop to perjure himself w/o penalty)

√ McCRAY 1967If the informant is a material witness to any of ∆'s charges, you can force disclosure of informant's identity. Prosecution will get around it by not charging the controlled buy, but rather only the drugs found during the search warrant; this was the informant is immaterial to the charges and you can't force disclosure.

On the test, makes sure you look at what he's charged with - if it's the controlled buy, you can get disclo-sure of the identity.

WHITELY (OTHER SOURCES OF PROBABLE CAUSE) 1971 Crime victim/witnesses, observations by police and official channels (APBs and BOLs) can go to probable cause.


ANDREAS 1983Once a package has been lawfully opened, it loses its 4th Amendment privileges.

√ GRUBBS (ANTICIPATORY WARRANTS) 2006As long as the warrant describes the future time/place, it's a good warrant. If triggering event occurs (de-livery of a package), there's a fair probability that the crime will occur. Must provide sufficient information to evaluate both sides of probable cause. (Only exception to warrants describing current presence of drugs.)

05: 28 JUNE 2011

COOLIDGE ("NEUTRAL & DETACHED") 1971Prevent bias in the issuance of warrants by using a "neutral & detached" party (not necessarily a judge)

SHADWICK 1972Need not be a lawyer or judge, just a good working knowledge of the law. (For the test, assume a good warrant has been signed by a judge.)

STEELE & GARRISONMust describe the property with reasonable detail.

GO-BART & HORTONDescription of things to be seized can be a little vague and still be good. (Most warrants have a DNC Clause - seize items that show Dominion & Control of the property to tie ∆ to the house & evidence seized.

GOODING (TIME OF EXECUTION - DAY OR NIGHT) 1984th Amendment doesn't dictate time to serve. Statutory.

√ WILSON (KNOCK NOTICE) 1995Knock Notice is an integral part of the 4th Amendment (even though it's not in there). Unanimous rule.

HUDSON (KNOCK NOTICE EXCEPTION) 2006Knock Notice is designed to protect both police and resident. Must give adequate time for them to answer the door. However, Knock Notice can be waived in the warrant if the suspect is believed to be armed & dangerous. Also, if police here something (flushing on a narc raid), they can reject KN.

YBARRA (DETENTION & SEARCH OF PERSONS ON PREMISES) 1979Probable Cause doesn't extend to customers at a bar simply because they're at a place where a crime may have been committed.

SUMMERS 1981Police have right to detain all occupants when a search warrant is being executed on a property for as long as it takes to perform search. For officer safety and discover DNC linking detainees to property.

MENA 2005Police may not only detain but can also handcuff occupants when performing a search of a property. Can't search their person (YBARRA) unless they believe they have a weapon.

YBARRA+SUMMERS+MENA


ANDERSSEN (S/W IMPACTING 5th AMEN RIGHTS) 1976If police seize incriminating papers/records, they cannot subpoena them. Otherwise, you're required to in-criminate yourself. A search warrant avoids that.

ZURCHER 1978A subpoena gives an opportunity to destroy documents. A search warrant seizes them before they can be destroyed. A special master (usually a retired judge) can be appointed when dealing with companies who handle confidential information (doctor, lawyer, clergyman or newspaper).

TEST: Probably cause & Terry stops are more complex and need multiple paragraphs in analysis. The others don't.

√√ Must be able to show if probable cause meets the Gates tests. Underline Gates: The 4th Amendment requires that warrants be based on probable cause, meaning that, based on the totality of circumstances, the magistrate must have sufficient evidence to conclude that the evidence to be seized is CURRENTLY at the location to be searched. (2nd sentence). When the information is in substance from an informant, the relevant factors to consider are veracity, basis of knowledge and corroboration by police (3rd sen-tence). Classify the person supplying the information of an informant and analyze veracity & basis of knowledge.

SIX EXCEPTIONS FOR SEARCH WARRANTSI-Incident to ArrestS-Stop & FriskP-Plain SightA-AutomobilesC-ConsentE-Exigent Circumstances

√ WATSON (WARRANTLESS SEARCHES-INCIDENT TO ARREST) 1976The police can make an arrest without an arrest warrant if it's based on Probable Cause. Must be in a PUBLIC PLACE. (Arrest in the home is subject to different rules.) Search must be within the scope of "within the sphere of access" (arm's reach-within immediate control of arrestee).

PRINGLE (ARRESTING ALL PASSENGERS IN AUTOMOBILE SEARCH) 2003Because a vehicle is such a confined area, there is probable cause to believe everyone in the car could have access to the drugs. (Doesn't mean everyone will ultimately be charged.) Not the same in houses because it's not a very confined space.

ATWATER 2001With probable cause, an officer can arrest on petty crimes.

MOOREA state statute can forbid arrest for certain offenses, but if the officer does it anyway, it's not a violation of 4th Am.

GARNER (REASONABLE FORCE) 1985In making a lawful arrest, the officer is authorized to use deadly force only if suspect is a serious threat to public/police.

SCOTT 2007Use force that is necessary to the circumstances.


√ McLAUGHLIN 1991An arrested individual should receive a probable cause hearing without "unreasonable delay" (within 48 hours). Sometimes doesn't count the day of the arrest (arrest Thursday, hearing Monday = 5 days). "3 Day Kickout" if they don't file charges on the 3rd day (not counting arrest day & weekend). Wednesday ar-rest, Friday kick out. WATSON GIVES POLICE DISCRETION FOR WARRANTLESS ARREST, BUT McLAUGHLIN IS A SAFETY VALVE THAT MAKES THEM PROVE PROBABLE CAUSE TO HOLD THEM.

√ CHIMEL (PERMISSIBLE SCOPE OF SEARCH "INCIDENT TO ARREST") 1973Can search only for weapons & preserve evidence. Anything beyond this (other parts of the house) requires a warrant.

6: 30 JUNE 2011

WILSON 1999Bringing the press into a crime scene is forbidden, but it's okay to bring a victim to the scene of a search to identity.

SEGURA & McARTHURIt is permissible to secure a location while waiting on an anticipated warrant.

BUIE (PROTECTIVE SWEEP) 1990Police have a right, for their own safety, to extend the search to look for other occupants hiding inside. A protective sweep permits going through adjoining areas and adjoining structures to search for human be-ings who could harm the officers. "Can extend only to places where a person can be found" and must be a "cursory" search, only taking as long as it takes to arrest the individual.

CHRISMAN (MONITORING MOVEMENTS OF ARRESTED PERSON) 1982When an officer puts someone under arrest, he can monitor their movements (follow them).

LAFAYETTE, EDWARDS, SCHMERBER, WINSTON (JAIL/HOSPITAL SEARCHES)Lafayette: In jail, he is subject to an "intake search" to prevent weapons & narcotics from coming into the jail. Also protects jail from false claims of theft with an inventory.(FULL EXPLORATORY SEARCH)

Edwards: No 4th Amendment protect on items inventoried in jail (although a warrant should be pursued after a few days)

Schmerber: Once you are lawfully in custody, you lose your 4th Amendment protection of your body (blood, hair, urine, semen, etc.). No 5th Am violate for taking samples, either, as self-incrimination doesn't pertain to these items.

Winston: A bullet is evidence, and if removal is necessary to save the life, the evidence is admissible. If not, it's inadmissible.

KNOWLES & CUPP (WHAT CONSTITUTES AN ARREST?)Knowles: The state can not dictate Due Process at a standard lower than the Federal standard.

Cupp: Reason to arrest but don't, search is legal.


√ TERRY (DETENTION MUST BE BASED ON "REASONABLE SUSPICION" OF CRIMINAL ACTIVITY/COMMENSURATE RIGHT TO FRISK A DETAINEE IF REA-SONABLE BELIEF HE'S ARMED) 19681. Police can seize an individual if suspicion is based on articulable facts ("reasonable suspicion"

drawing on events witnessed and experience). Don't need probably cause. 2. Can also frisk for HARD OBJECTS (weapons) 3. A temporary detention is a seizure of the body, therefore it implements the 4th Amendment. Opin-

ion: The most powerful pro-police decision the SC has made, empowering. Subjective intent SHOULD b

HIIBEL (WITHHOLDING IDENTITY FROM POLICE) 2004If person is suspected of criminal activity, it is reasonable to request identification (whether it's a crime to not provide it is left to the states).

√ WHREN 1996(Widely criticized by ACLU, minorities, etc.) Pretext (broken taillight violation) is permissible for a stop. Subjective intent of officer immaterial.

√ 3 TYPES OF CONTACT WITH POLICE1. Arrest2. Temporary Detention3. Consensual Encounter-doesn't involve express/implied seizure

√ MENDENHALL ("CONSENSUAL ENCOUNTERS" NOT AMOUNTING TO SEIZURE)"a person has been seized only if, in view of all the circumstance surrounding the event, the individual feels they are not free to leave". If police exert such control that a reasonable person feels they aren't per-mitted to leave, they have effectively been seized.

You don't need Reasonable Suspicion in a Consensual Encounter - they're free to say no. If the officer exerts control, if goes from Casual Encounter to Arrest or Temporary Detention, and all evidence should be suppressed.

ROYERConsent can be invalidated if detained without reasonable suspicion.

BOSTICK & DRAYTON (CONSENSUAL BUS ENCOUNTERS)Agents aboard a bus are not detaining anyone because you're technically allowed to leave. They don't need reasonable suspicion for a Consensual Encounter.

DELGADO (CONSENSUAL ENCOUNTER IN WORKPLACE)Consensual Encounter at the workplace because the workers are all there voluntarily. (Bostick attempted to apply this logic)

ROBINETTEStopping for minor infractions in order to get consent to search (which idiot drivers usually give). Should inform that the detention has been terminated and they are free to go, but they are not required to do so.

HODARI (TO BE "SEIZED" PERSON MUST SUBMIT TO AUTHORITY) 1991To be detained, you must submit. A detention requires either arrest or submission.


BRENDLIN (CAR PASSENGER ON TRAFFIC STOP "SEIZED")Everyone in the car is detained. The driver can't be detained and the passenger in an Consensual En-counter.

JOHNSONOfficer is justified in frisking for weapons if he has a reasonable fear that someone is armed.

SHARP & PLACE (DURATION OF DETENTION)Sharp: Only as long as necessary to confirm or disprove officer's suspicions.

Place: Unnecessarily long.

DICKERSON (FRISK LIMITED TO HARD OBJECTS)A frisk search is limited to hard objects (looking only for weapons).

7: 05 JULY 2011

REVIEWIf a search is made w/search warrant, it is presumed to be valid.

WHITE (DETENTIONS BASED ON ANONYMOUS TIP)"Required degree of suspicion to justify a detention is less than that for a search warrant". Reliance on predictive behavior bolsters informant's credibility.

J.L.Corroboration necessary to make up for a lack of veracity. Specifics & predictive behavior support verac-ity.

SOKOLOW (DRUG CARRIER "PROFILES")Someone fitting the profile of a "carrier" meets "reasonable suspicion" (even if all exhibited behavior is completely innocent) and can be legally detained.

HENSLEY (APBs)Someone matching the description in an APB is "reasonable suspicion" enough to to justify a Terry stop.

WARDLOW (FLIGHT AS BASIS FOR DETENTION)"The guilty flee when no one pursueth." Fleeing from police is enough to justify a "reasonable suspicion". (Vehemently criticised)

DAVIS & DUNAWAY (UNLAWFUL DETENTIONS)You must have probable cause to make an arrest. You can't arrest someone for questioning. ("Law & Or-der" is bullshit.)

HAYESMomentary detention to take someone's fingerprints in the field (or photo) is permissible.

"PLAIN VIEW" RULE The cop makes a lawful observation (not trespassing, lawfully present) of something 1.) inherently con-traband (brick of coke, sawed-off shotgun, appliances with the serial number removed, etc.) or 2.) evi-dence with a "probable cause nexus" that relates to an item on a "hot sheet" he can make a legal seizure. (EX: Searching for D&C evidence, discovers contraband/evidence of another crime.) HICKS: Moving ob-jects to determine it's evidence is an illegal search.


√ "EXIGENT CIRCUMSTANCES" RULEJust because the police are at a crime scene doesn't mean they can do a full search.√ PAYTON (WARRANTLESS HOME ENTRY TO ARREST FOR PROBABLE CAUSE)Bright Line Rule: The house is the most protected area under 4th Am. WATSON: warrantless arrest in public only. PAYTON: Absent exigent circumstances, police cannot make a warrantless in the home.Exigent Circumstances: (OLSON): "a warrantless intrusion may be justified by hot pursuit of a felon, or imminent destruction of evidence, or the need to prevent a suspect's escape, or the risk of danger to po-lice or to other persons inside or outside the dwelling." STEWART: Police can enter w/o warrant to render emergency services or protect someone (domestic abuse).

√ "CONSENT" RULE (WILL BE ON THE TEST)V - Voluntary (SCHNECKLOTH) - goes to gvtA - Apparent authority to give consent (RODRIGUEZ) - goes to gvtS - Scope of consent determines search (JIMENO) - goes to gvtT - Taint. Consent must not have been obtained by tainted means (product of illegal arrest/seizure) (ROYER) - goes to ∆

08 - 07 JULY 2011

√ (CONSENT)The public need not be informed that they don't have to give consent. Prosecution shoulders the burden of proving that the consent was voluntary.

BUMPERFaulty warrant invalidates consent only when the official asserting they have have a warrant demands it.

√ JIMENOEven in a consented search of the car, you must specifically ask for separate consent to search the trunk & any closed containers belonging to 3rd parties.

MATLOCKJoint possession - either one can give consent to search. In a shared apartment, either can give consent to enter shared areas (hallway, living room, dining room, single bathroom). Absent roommate's bedroom is off-limits.

√ RODRIGUEZ (APPARENT AUTHORITY - 3rd PARTY RELIANCE)If a 3rd Party has apparent authority and it's reasonable, the police can rely on that in "good faith" for a consensual search. If you borrow someone's car, they give you apparent authority to authorize a search of the passenger compartment of the vehicle (apparent authority does not extend to the trunk). Consent for search holds.

CHAPMAN, STONE & FRAZIER (COMMON AUTHORITY & SPECIAL RELATION-SHIPS)A child does not have the authority to authorize a search of parents' rooms (shared areas ok), but a par-ent has apparent & legal authority to authorize a search of their room.

RANDOLPH (ONE SPOUSE CONSENTS, THE OTHER DOESN'T)If both spouses are present and one spouse consents while the other doesn't, the consent is unreason-able (even in common areas). Probably applies to co-tenants.

√ SPECIAL RELATIONSHIP NOTES:Landlord doesn't have authority to consent to a search of a tenants apartmentEmployer may be able to authorize a search of the exterior of a desk, but probably not the interior.Bailor/Bailee (valet attendant) can authorize a search of the passenger area but not of the trunk.


√ ROYER (TAINT - UNLAWFUL DETENTION/ARREST INVALIDATING CONSENT)Illegal arrest/detainment taints consent for search, which invalidates (vitiates, nullifies) voluntary consent.

NOTESConsent can be obtained during a consensual encounter. Doesn't have to be a (lawful) seizure of the body (arrest/detainment)

WARRANTLESS SEARCHES: AUTOMOBILES

CARNEY (THE EVOLUTION OF THE "AUTOMOBILE EXCEPTION")Automobile has significantly less 4th AM protection than a home. Automobile Exception to Warrantless Searches (not based on exigency):1.) Mobility of the automobile. 2.) Subject to government regulation & you can see inside it from the road (reduced expectation of privacy). If the cops have existing probable cause that the automobile contains contraband/evidence of a crime, they can make a valid warrantless search.

ROSS-ACEVEDO RULE (LUGGAGE & THE AUTOMOBILE EXCEPTION)ROSS: Once a cop has probable cause to search for drugs, he can open closed containers.ACEVEDO: Once the cop has probably cause to believe a piece of luggage contains contraband and, while being tracked, it enters a car, a legal TERRY stop can be executed and the luggage can be seized and searched. LIMIT: If that luggage is in a taxi, they can stop the taxi and search, but once they find the contraband, the search must stop.

HOUGHTON (SEARCH OF CONTAINERS IN VEHICLES BELONGING TO 3rd PAR-TIES)Probable cause for contraband permits searches without consent of containers belonging to 3rd parties. Without p/c, consent prohibits opening 3rd party containers.

WELLS & BERTINE (IMPOUND/INVENTORY SEARCHES)Inventory searches, subsequent to arrest, the police have a right to do a full inventory of the vehicle as long as they comply with written administrative rules, permitting them to open locked containers. Must be able to lawfully see contraband in "plain view".QUESTIONS TO ASK:1. Was the driver lawfully arrested?2. Was impounding the car a necessity?3. Was this an inventory or a targeted search?4. Did they conduct the inventory w/in the guidelines of written administrative rules?

09 - 12 JULY 2011

BELTON ("INCIDENT TO ARREST" SEARCH EXTENDS TO AUTOMOBILES)Whenever a recent occupant is lawfully arrested, police can go back to the car and search for drugs/guns (automobile extension of CHIMEL). Originally designed to protect officer & preserve evidence. (Does not include the trunk.)

THORTON (BELTON-THORTON RULE)What is a "recent occupant" of an automobile? The arrestee is spatially/temporally connected to the car. Belton-Thorton Rule to the Automobile Extension - guy can be cuffed in the car and still be spatially/tem-porally connected for search.


GANT (CURRENT RULE)Significantly modified Belton-Thorton so that the search is only good if arrestee is a threat to officer safety or able to destroy evidence. Purpose: to narrow BELTON2 WAYS TO EXTEND "CHIMEL" TO AUTOMOBILES:1. If driver is arrested close to the area of the car (within "arm's length" of guns/evidence)2. Police can go back & search the car if they have reason to be believe that the car has additional

evidence for which he's being arrested (not a full search - does not include the trunk).Problem: Doesn't use "probable cause"-uses "reason to believe", which is a lower standard.

MIMMS & WILSONOrdering driver/passenger out of the car on a lawful traffic stop is permissible (for officer protection).ICABALLESIf lawfully stopped, a dog sniff for drugs is permissible.

EDMONDRandom stops/roadblocks for dog sniffs is NOT permissible.

BORDER CHECKPOINTAny car going through a border checkpoint is subject to a random search. Non-individualized suspicion must be justified usually - going through a border is justified. The further away you get from the border, the more the need for individualized suspicion.

VAN LEEUWEN (TEMPORARY SEIZURE OF PACKAGES/LUGGAGE)At some point, the time of seizure become unreasonable. Question of degree.

CAMARA (SAFETY INSPECTIONS)Random, cursory checks for safety is permitted if it's according to a plan. Anything more than that re-quires a warrant.

LISTER (STOPPING CARS AT RANDOM LOOKING FOR A WITNESSPermissible because the need to find a witness trumps 4th AM requirement of individualized suspicion.

DUI CHECKPOINTSConsidered a public safety measure, not law enforcement, so it trumps 4th AM individualized suspicion requirements.

T.L.O. (STUDENT SEARCHES)Students attending a public school give up some of their 4th AM privacy rights. School administrators have a right to conduct warrantless searches with reasonable suspicion (individualized suspicion). Argu-ment: you give up some parental control in order to preserve a safe learning environment.

PROBATIONERS/PAROLEES"4th Waiver" in drug cases resulting in probation. Agree to subject themselves to warrantless search at any time. Common Cases: drugs, bad cheques, stolen property. SAMSON: Parolees have an automatic 4th Waiver

MANDATORY DRUG TESTINGSpecial needs cases that trump individualized suspicion requirement because of the dangerous nature of their jobs (pilots, train conductors, etc.)


ACTON/EARLS (MANDATORY DRUG TESTING FOR STUDENTS)Extracurricular activities can require drug testing - results not turned over to law enforcement. Special needs trump 4th AM privacy rights.

REDDING (STRIP SEARCHES OF STUDENTS DISAPPROVED)Too invasive - draws a line for T.L.O. searches. Must have specific evidence that the drugs are on their person.

FEGUSON (HOSPITAL TURNING OVER URINE SAMPLES TO POLICE)Not a special need which could trump 4th AM if it's primarily for law enforcement. No individualized suspi-cion.(Distinguishes from ACTON/EARLS in that the results were turned over to law enforcement.)

LONG (SEARCH FOR WEAPONS)Must be lawful detention, reason to believe detainee armed or vehicle contains weapon and limited to search for weapons in passenger area of automobile and person (TERRY frisk for hard objects). Exten-sion of TERRY.

√ CAR SEARCH WILL ABSOLUTELY BE ON THE FINAL ESSAY!

RAKAS (CURRENT APPROACH ON "STANDING")You can only challenge a search if you can show a reasonable expectation of privacy in the area to be searched (putting drugs in your girlfriend's purse - illegal search can't use them against her, but they can use them against you, since you have no standing RAWLINGS).BRENDLIN: A car passenger can challenge the legitimacy of the stop(standing)OLSON: Overnight guest has standing to challenge search of guest room.CARTER: Temporary visitors have no standing.

SEGURA & MURRAY ("INDEPENDENT SOURCE")See drugs on illegal entry. Come back with a warrant to see them again. Rule: As long as the have an in-dependent source (subsequent legal search with a warrant based on independent evidence), it trumps the earlier (tainted) search.WILLIAMS II ("INEVITABLE DISCOVERY")Illegal search/confession is trumped by the possibility of "inevitable discovery", the earlier illegality is over-looked. (Vehicle would have been impounded/inventoried anyway because he had a warrant out. Justifies illegal trunk search.) ALWAYS INVOLVES A HYPOTHETICAL!EX: Drugs on the body would have been found with Chimel search incident to arrest and a Lafayette search at the jail.

10 - 14 JULY 2011

√ WONG SUNG ("FRUITS OF THE POISONOUS TREE")If you can show that a that an arrest is based on illegal drugs, but the search was illegal, the evidence seized is "fruit of the poisonous tree". ONLY WORKS FOR THE FIRST GUY FORWARD - THE OTHERS HAVE NO STANDING. Arrest is based on evidence secured illegally.√EXCEPTIONS TO WONG SUN√CECCOLINI: Court will not suppress a live witness, despite WONG SUNG.√CREWS: Identification of ∆ by a witness will not be suppressed for public policy reasons.

√ EXCLUSIONARY DOESN'T APPLY when:1. Good Faith2. Standing (Rakas)3. Independent Source (Segura)4. Inevitable Discovery (Williams II)


5. Impeachment (Havens)6. "Knock Notice" Violation (Hudson)

HAVENS (USE OF ILLEGALLY SEIZED EVIDENCE FOR IMPEACHMENT)Formerly suppressed evidence can be used in a later case for the purpose of impeachment. Court won't permit perjury. (Suppressed drugs - Later, "I never used drugs!" = evidence for impeachment)

HUDSON (EXCLUSIONARY RULE NOT APPLIED TO KNOCK NOTICE VIOLA-TIONS)If cops violate "knock notice", evidence still comes in. (Inconsistent with earlier rulings.)

(WIRETAPPING-SEE HANDOUT)Used in drug cartel, political corruption, kidnappings, and terrorism cases.If you listen in on a conversation without consent of at least one of the participants, you must have a wire-tap warrant.DELIA: Court ruled that it's implied in Title 3 that, with wiretap authorization, law enforcement is autho-rized to make covert entry into someone's home.

HOFFA (MISPLACED CONFIDENCE IN INFORMANTS LEADING TO INVITED EN-TRIES)If a friend can betray you, he can work with the police against you. If you invite them into your room, it's not an illegal entry violating 4th AM, despite the fact that they're operating as an agent of the government. CHOOSE YOUR FRIENDS WISELY!

ENTRAPMENTNot on the final essay. Only one question on multiple choice.Court's philosophy: It's not part of Due Process or Constitution. It's SC's policy that there is enough legiti-mate crime that we don't need the police creating more.

SHERMAN (OBJECTIVE v. SUBJECTIVE TEST)√ THIS IS THE ONE ON THE FINAL: Subjective test focuses on the ∆'s conduct. Allows prior criminal record to come in and be considered by the jury to see if THIS particular ∆ is predisposed to this kind of behavior. (The Federal Court Standard-more favorable to the gv't)Objective test looks at gvt's conduct to see if that contributed to ∆'s conduct. Did they actively encourage it, or was ∆ predisposed to this sort of behavior? Would an (mythical) innocent, reasonable man have been induced into committing this crime? DOES NOT LOOK AT ∆'s CRIMINAL RECORD (Cop dressing up like an old lady to attract purse snatchers is legit under objective test.)

11 - 19 JULY 2011

JACOBSON ("BLENDING" OF THE TWO TESTS)Sometimes juries and justices follow their hearts, especially if they don't like the conduct of the govern-ment. (No real rule here.)

CONFESSIONSSociety values "owning up". If a confession is accurate and not coerced, society is served. Over time, the focus shifted from accuracy of the confession to the police conduct involved in obtaining the coercion.

McNALLYIf someone is lawfully in jail and is unnecessarily prolonged before bringing him before a magistrate, even if properly Mirandized, confession is suppressed.


MALLOYApplied 5th AM to the states.

ESCOBEDO (PRECURSOR OF MIRANDA)If the suspect requests a lawyer, the police must stop interrogating (not required to advise them of this).

√ MIRANDAForces the police to inform the suspect of their rights to counsel and silence. Must be given when two things exist: 1.) ∆ is in custody (detention or arrest) 2.) The questioning of ∆ must be accusatory, not in-vestigatory (police initiated custodial interrogations).

(Somewhat misleading - actually means that, while the right to an attorney doesn't kick in until he's charged, the police must stop interrogation once suspect invokes this right.)

DUCKWORTH (ADEQUACY OF WARNINGS)The Miranda Warnings must be verbatim. You cannot paraphrase.

SPRING (MUST PERSON BE AWARE OF SUBJECT MATTER OF QUESTIONING?)No.

WHAT IS "CUSTODY"?If police have p/c to arrest but don't, ∆ is not in custody, so there is no need to recite Miranda warnings.EXCEPTION: (McCARTY) During a routine traffic stop (even DUI), the initial questioning is not accusato-rial and doesn't require Miranda warnings. (Even though the stop is detainment.) Once he's arrested, he needs warnings.ALVARADO: "Reasonable person would believe that they are in custody."JDB: Take age & location into consideration for custody (school kids).

WHAT IS "INTERROGATION"?√ INNIS: Any words or actions on the part of the police that the police SHOULD know are reasonably likely to illicit an incriminating response from the suspect is the functional equivalent of interrogation.

12 - 21 JULY 2012 BUTLER (INVOCATION & WAIVER)A person can waive their Miranda rights impliedly through their actions. (EX: By talking freely without waiving, he impliedly waives.)MICHAEL C.: Must specifically ask for an attorney to invoke Miranda (not parents or probation officer).THOMPKINS: Being silent doesn't actually invoke your right to remain silent.NOTE: Burden seems to have shifted to ∆ to prove that he had invoked Miranda.

BURBINE (THWARTING ATTY ACCESS)Only ∆ can invoke his Miranda rights.

FRASIER (TRICKERY TO INVOKE MIRANDA WAVERS - CAN POLICE LIE?)As long as it doesn't create a false confession, police can use deception (including bogus evidence).

FULMINANTE (PSYCHOLOGICAL PLOYS TO INVOKE MIRANDA WAIVERS)Psychological manipulation (fear for one's life) invalidates confessions.

CONNELY (INTERROGATING THE MENTALLY ILL)The police are not responsible for determining if someone is mentally competent to waive Miranda rights.


TUCKER (MIRANDA VIOLATION LEADING TO THE IDENTITY OF A WITNESS)Exception to WONG SUN: Court will allow such voluntary statements, not "fruits of the poisonous tree", if it leads to the identity of a witness. NARROWING OF MIRANDA.

PATANE (MIRANDA VIOLATION LEADING TO PHYSICAL EVIDENCE)Another exception to WONG SUN: Voluntary statements leading to physical evidence will be admitted.

√QUARLES (PUBLIC SAFETY EXCEPTION TO MIRANDA - "WHERE'S THE GUN?")Miranda warnings don't have to be given in a public safety situation.

√ ELSTAD (CURING THE TAINT OF AN EARLIER MIRANDA VIOLATION)A statement made without Miranda warnings can be "untainted" with a later Mirandized confession. (Re-peat for the record.)

SIEBERT (UNWARNED CONFESSION REPEATED AFTER WARNINGS GIVEN)Unlike ELSTAD, if one continuous statement is interrupted to Mirandize, the statement is no good.

HARRIS (THE IMPEACHMENT EXCEPTION)A statement was made with a Miranda violation is inadmissible in case-in-chief EXCEPT where ∆ makes a conflicting statement in court. Statement can be used to impeach, as the court won't permit perjury.

DICKERSON (NECESSITY OF MIRANDA WARNINGS RE-EVALUATED, UPHELD)Found to be Constitutional

√ MOSLEY (ONCE MIRANDA INVOKED, CAN COPS TRY AGAIN?)Once asserted, permissible only if:Determine what ∆ said - here, ∆ only invokes right to remain silent (not atty)1.) Police must scrupulously honor this invocation2.) Wait an appreciable amount of time (next day)3.) Must re-admonish Miranda when they try again.

√ EDWARDS (INVOKING RIGHT TO COUNSEL v. RIGHT TO REMAIN SILENT)Insulates ∆ from further police contact. Give Miranda a second layer of protection if ∆ specifically invokes right to counsel. Cops can't try again.

√ DAVIS (REQUEST FOR ATTY MUST BE UNAMBIGUOUS)You must say "I want a lawyer" to actually exercise this right - it cannot be ambiguous.

SHATZER (COURT SETS A TIME LIMIT ON EDWARDS PROTECTION)Court set a 14-day limit on Edwards protection with a break in custody. (Not on the test)

BRADSHAW (WHAT CONSTITUTES RE-INITIATING FURTHER CONTACT?)With EDWARDS in effect, a general question doesn't initiate interrogation.

MONTEJO (EDWARDS NO LONGER AUTOMATICALLY KICKS IN AT ARRAIGN-MENT)With no request for an attorney, despite being assigned one, ∆ does not automatic have EDWARDS pro-tection. Police may interrogate until ∆ asserts his right to atty. (Overrules JACKSON)


√ McNEIL (RIGHT TO COUNSEL IS "OFFENSE-SPECIFIC")The right to counsel is offense specific. Only attached to that specific charge ∆ was arraigned on. Now that JACKSON was overruled by MONTEJO, it is less relevant - he must specifically & unambiguously re-quest an atty.COBB: Does not attach to unrelated charges.

PATTERSON (MIRANDA WARNINGS SUFFICIENTLY APPRISE ∆ ON 6th AM RIGHT TO COUNSEL)

13 - 26 JULY 2010 (Last full class!)

√ Michael Connelly crime novels

JACKSON∆ asking for a lawyer in court is the same thing as an EDWARDS invocation face-to-face with a cop. (Overruled by MONTEJO).``

MASSIAHAfter ∆ has been arraigned and assigned counsel (right to counsel attached), police may NOT use a se-cret agent to gather evidence against ∆. Contrast HOFFA, where snitch was asking about a separate crime.

There's no right to privacy in a jail, so planting a snitch is not a 4th AM violation as long as he's not yet charged. However, if his right to counsel has attached, snitch can actively listen, so long as he doesn't question ∆. KUHLMAN (PASSIVE LISTENING BY JAIL PLANT v. IN-CUSTODY & CHARGED ∆)Jail plant comments are permitted, but questioning isn't.

VENTRIS (IMPROPER INFORMANT QUESTIONING OF ∆ CAN BE USED FOR IM-PEACHMENT) Under MASSIAH-HENRY, the informant's questioning is inadmissible, unless coerced, can be used to im-peach perjuring ∆.

PERKINSAn informant situation is not governed by MIRANDA.

√ PRE-TRIAL IDENTIFICATIONSCURBSIDE LINEUP: 1-on-1, with no lineup, just victim and suspectPHOTO ARRAY: 6 picturesLIVE LINEUP: 6 people go before the lights

√ STOVALL (UNDULY SUGGESTIVE LINEUP; THE ORIGINAL "PER SE" TEST)You can challenge any pre-trial identification by showing it was "unduly suggestive":

1.) The manner in which the lineup was presented (one suspect is made to standout). 2.) Something the police say solidifies witness's shaky identification.

If it materially affected the in-court identification, you can get both thrown out.

√ WADE-GILBERT (RIGHT TO COUNSEL AT LINEUP?)Once a suspect has been charged and right to counsel has been attached, then ∆'s attorney must be ad-vised of lineup so he can make sure the lineup is fair. (Attorney can be present at a post-arraignment live lineup).


Most court cases can't be cited in a trial, but WADE-GILBERT can be. "Identifications of people are fraught with error and can lead to misidentifications."

√ KIRBY (RIGHT TO COUNSEL DOESN'T ATTACH UNTIL AFTER ARRAIGNMENT)In pre-arraignment live lineups, ∆ has no right to counsel.

√ ASHYou NEVER have a right to counsel at a photo lineup/array.

√ MANSONTest for determining the admissibility of in-court identification where there has been a previous unduly suggestive identification procedure (curbside, photo, live lineup). (In this case, a single photo lineup.)

"Whether under the "totality of circumstances" the identification was reliable even if the confrontation procedure was "suggestive".

Circumstances affecting witness's ability to make an accurate identification:Race, lighting,

√√√ FOR TEST ON IDENTIFICATION:1.) Say when Right to Counsel Attaches (photo: ASH - never; before arraignment - WADE-GILBERT & KIRBY- No; post-arraignment - WADE-GILBERT & KIRBY - Yes)2.) Say what's wrong with the lineup (unduly suggestive)3.) What is the test for admissibility? MANSON Reliability Test.

Look at the physical description. Look at certainty of identification. Look at witness's opportunity to observe the suspect.

NAIL ALL 3!

Criminal Procedure Notes

Documents

criminal procedure

written administrative

bright line

4th amendment

violate 4th

4th amendment

miranda violation

exclusionary