Criminal Procedure Outline

CRIMINAL PROCEDURE

INTRODUCTION

The Amendments: Selective incorporation of those fundamental to ordered liberty through due process clause of 14th

amendment

Two Contexts for Criminal Procedure: - Jurisdictional

o Diversity b/w stateso Discretion in application

- Constitutional: Due Processo Application of Bill of Rights to the States: rights in the first ten amendments to

the Constitution do not all apply to the states

o Incorporation Total Incorporation: involves an application of all parts of the Bill of

Rights to the States through the 14th Amendment Due Process Clause The court rejected total incorporation

Fundamental Fairness: applies when a right is “implicit in the concept of

ordered liberty”

Selective Incorporation: 14th Amendment Due Process includes only those rights in the Bill of Rights essential to “ordered liberty:

Look at entirety of the right, not just as it applies to a particular set of facts, and whether the provision is fundamental to Anglo-American jurisprudence

Most of the rights in the Bill of Rights apply to the states using selective incorporation

Remedies for Constitutional Violation: - Exclusionary Rule: precludes prosecution in a criminal trial from introducing evidence in

its case-in-chief seized unconstitutionally by government agents

o Application: exclusionary rule applies only to use of illegally obtained evidence against a defendant whose rights were personally violated through the illegality

Exclusionary rule does not apply to evidence used to “impeach” the defendant’s credibility on cross-examination

o Operation Standing: required to assert any constitutional violation that will trigger

operation of exclusionary rule Defendant must seek to remedy a violation of her own

constitutional rights – not rights of another person Rights are violated where the constitutional harm is done to that

individual personally, at a place, or to some thing where and when she possessed a “reasonable expectation of privacy”

Fruits Doctrine: evidence derived from unconstitutional activity is inadmissible in criminal proceedings when obtained as a direct result of that activity, or as an indirect result of such a constitutional breach

Analysis:

o Does defendant have standing to challenge the source of the illegality (e.g. the arrest)?

o Was the source illegal (e.g. was the arrest illegal)? o Is the contraband from the search the fruit of an illegal

arrest?

o Exceptions: Dissipated Taint: evidence is not excluded

when connection b/w lawless conduct of the government and the discovery of the evidence has become so attenuated as to dissipate the taint

Case-by-case Analysis: o Time b/w arrest and confessiono Presence of intervening

circumstanceso Purpose and flagrancy of official

misconduct

Inevitable Discovery: whether government can establish that the information would have been discovered by lawful means

Government will not be put in a better or worse position than it otherwise would’ve been w/o illegal conduct

No requirement that there be absence of bad faith by government

Independent Source: evidence came from an independent source and is not excluded

FOURTH AMENDMENT

4 th Amendment : the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized

General: - Right of the People: 4th amendment is protects citizens and non-citizens who have

“developed sufficient connection” with the U.S. to be part of “national community” o Documented immigrants living voluntarily in U.S. “have accepted some societal

obligationso Unclear whether nonresident alien, involuntarily detained in U.S. has sufficient

connectiono Nonresident aliens located outside U.S. or its territories are not protected against

foreign searches

Introduction to Persons, Houses, Papers and Effects:- Persons:

o D’s body o Exterior of D’s body – including his clothing (e.g. frisk) o Interior of D’s body (e.g. urine test)

o D’s oral communications (e.g. electronic surveillance)

- Houses: o Structures used as residences – including temporary (e.g. hotel room) o Buildings attached to residence (e.g. garage)o Buildings not physically attached that are used for intimate activities of the home

(e.g. shed)o Curtilage of the home – the land immediately surrounding and associated with

the home (e.g. backyard)

- Papers and Effects: o Papers include personal items (e.g. diaries and letters) and impersonal business

recordso Effects includes all other items not constituting houses or papers (e.g. clothing,

cars, luggage)

Application of the 4 th Amendment :

- Standing: 4th Amendment rights may only be asserted by one who is subjected to unreasonable search or seizure

- Governmental Actions: 4th amendment only applies to actions by the government or an agent of the government

o Foreign officers: 4th amendment does not apply to activities of foreign officers acting outside U.S. unless there is sufficient U.S. involvement in the search of an American citizen abroad

o Public employees: 4th amendment is not limited to police activity – covers conduct by public employees (e.g. firefighters, teachers) – but usually administrative

Search:

- Reasonable Expectation of Privacy: 4th protects people, not places – application turns on whether governmental action violated “reasonable expectation of privacy”

o Reasonable Expectation of Privacy Test: Person exhibited/manifested subjective expectation of privacy; AND Expectation is something society accepts as reasonable What one knowingly exposes to the public is not subject to 4th protection

o Reasonable Expectation of Privacy Examples: Curtilage: land immediately surrounding and associated with the home

is protected by the 4th amendment Curtilage Factors:

o Proximity to the homeo Whether area is included within enclosures o Nature of uses to which the area is puto Steps taken to protect area from observation

Business Premises: covered by 4th amendment but receive lesser protection b/c one has greater expectation of privacy in his home than in commercial structures

Effects: luggage is an effect protected by 4th – physical inspection is more invasive than visual inspection with carry-ons

Sensory Enhancement: 4th applies when gov’t uses device that is not in general public use to explore details of home that would not be known w/o physical intrusion (e.g. thermal imaging)

Cases: Katz v. United States: Katz had a “reasonable expectation of

privacy” in a phone booth Kyllo v. United States: gov’t used thermal imaging

o No Reasonable Expectation of Privacy: Garbage: exposing garbage to public and leaving outside curtilage

eliminates reasonable expectation of privacy in contents (Scott)

Open Fields: Unoccupied and undeveloped property beyond curtilage falls outside 4th Amendment (Oliver)

Reliance on third parties’ confidentiality (“false friends doctrine”): one cannot rely on others to keep communications confidential when one invites the government in

Pen registers: one who automatically conveys numbers dialed to a pen register has no reasonable expectation of privacy in such information – not a search (Smith)

Ariel surveillance: not a search if the surveillance: Occurs from public navigable airspace Is conducted in a physically non-intrusive manner Does not reveal intimate activities traditionally connected with

the use of a home or curtilage

External characteristics: no reasonable expectation of privacy in voice exemplar, handwriting, fingerprints b/c exposed to public – but the 4th applies in some instances of testing requiring blood and bodily intrusion (Riley)

Prison cell: 4th has no applicability in a prison cell (Hudson) – but unclear whether protections apply regarding such of person of prisoner or pretrial lockup

Cars: divided court as to propriety of seizure of car to take paint sample – and search limited to examination of tire

Computers: Email: a person enjoys reasonable expectation of privacy that

his email will not be intercepted w/o search warrant – but once email is received expectation diminishes b/c recipient could turn email over to police (Maxwell)

Keystroke Encryption: absent legislation in which all encryption developers would be required to submit “keys” to third parties for law enforcement, the warrantless entry of officers to install keystroke device (to discern code) is a search

Unoccupied and undeveloped property beyond curtilage falls outside 4th Amendment (e.g. “open fields”)

o Consider use of virus that would remotely install device – the cyber equivalent of a dog sniff

Sensory Enhancement: 4th does not apply where a device merely enhances sensory perception and facilitates surveillance that would otherwise be possible – reference to physical setting in which enhancement device is used plays important role (e.g. airport v. home)

Flashlight: no reasonable expectation of privacy

Aerial camera: satellite surveillance that does not reveal intimate details

Dog sniffs: activity aimed at detecting mere presence of contraband or identifying a suspicious substance is not a search

o Exposure to a trained canine is not a search b/c technique is limited in the manner in which information is obtained and in the context of the information revealed (Place)

Caballes reaffirmed Place as applied to vehicle searches

o Test to determine personal use of contraband is not a search (e.g. urine test)

Tracking devices: o No privacy right infringed where police installed “beeper”

in car b/c officers could’ve obtained same information via visual surveillance (Knotts)

Thermal imaging: threat to privacy will grow as use of intrusive equipment becomes more readily available (Kyllo)

Passive Alcohol Sensor: flashlight w/ built-in breathalizer will either fall into purview of external characteristics cases or will be analyzed under Kyllo

Seizure:

- Possessory Interest: o Seizure of Property: 4th amendment violated when there is some meaningful

interference with an individual’s possessory interests in property

o Seizure of Persons: 4th amendment violated when police, by physical force or authority, restrains the liberty of a citizen (Terry)

A reasonable person would have believed that he was not free to leave (Mendenhall)

Examples: Arrests Physically restraining or ordering a person to stop in order to

frisk or question him on the street Taking person into custody and bringing him to station for

questioning or fingerprinting Ordering person to pull his vehicle off the highway for

questioning or to receive a traffic citation

Stopping a car by means of a roadblock

Brief questioning by itself is not a seizure (e.g. bus sweep)

o Mere Evidence: mere evidence, or items that have only evidentiary value, cannot be seized

Only certain categories of evidence can be seized: Fruit of a crime (e.g. money obtained in robbery) Instrumentality of a crime (e.g. gun used) Contraband (e.g. illegal narcotics)

Probable Cause: Not all searches and seizures need be founded on probable cause. A lesser standard – “reasonable suspicion” – may apply where the intrusion is minor, such as a pat down for weapons. Furthermore, where the intrusion on a person’s privacy is especially slight and society’s interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for society and border checkpoints and certain administrative searches.

- Scope: Probable cause is required for: o Arrest and search warrants; ando All arrests (regardless of whether an arrest warrant is required)

- Definition: quantity of facts and circumstances within officer’s knowledge – not mere speculation – that would warrant a reasonable person to conclude that:

o Arrest: Probable cause that individual in question has committed a crime Probable cause for arrest does not dissipate with time

o Search: Probable cause that specific items related to crime will be found at the particular place

Where there is a danger of staleness (e.g. readily transportable items) for the likelihood that items will presently be in the location to be searched

o Warrant: Probable cause for a warrant to be issued

Totality of the circumstances: court abandoned insistence that both prongs need to be satisfied (Gates)

New Standard: whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place – court was concerned about anonymous tips

Some state constitutions still adhere to two-prong test

Informants (Hearsay): Aguilar and Spinelli Two-Prong Test: police corroboration can

resolve either prongo Credibility of informant (why should police believe this

person?)

o Basis of knowledge and reliability (how does informant know?)

- Deference to police: officer’s subjective belief does not constitute probable cause – but the court will consider specific expertise of the officer

- Other Ingredients: o Ill will: ill will of informant toward defendant will not necessarily reduce credibility

(Copeland)

o Police knowledge of prior record: may be used to confirm informant’s tip as long as it is not based on rumor (Harris)

o Flight: flight from an officer can be a factor in calculus (Sibron)

Unprovoked flight may be basis for stop

o Presence in high crime area: mere presence is not enough (Brown) May be basis for reasonable suspicion for Terry stop

- Criminal activity: o Activity must be a crime in a particular jurisdiction (e.g. carrying a gun is not a

crime – but carrying w/o a permit is)

- Occupants in a car: there is probable cause to arrest a passenger after recovering drugs pursuant to a consent search b/c it is reasonable to assume that any or all of the passengers had knowledge of the drugs and exercised dominion and control

Search and Arrest Warrants:

- Issuance: o Arrest Warrant: police may arrest without a warrant as long as arrest occurs in a

public place and there is probable cause to believe suspect committed crime Warrantless arrest permitted even if there is enough time to get an arrest

warrant (Watson)

Police may not arrest someone in his home unless they have a warrant or unless there are exigent circumstances

The threshold to one’s home is considered a public place for purposes of arrest (Santana)

Arrest in the home of a third person: absent exigent circumstances, police may not enter and search the home of a 3rd person to look for suspect for whom they have an arrest warrant, w/o a search warrant and probable cause to believe suspect is in the house of his friend (Steagald)

o Search Warrant: police may search without a warrant if the conduct falls within an established exception to the warrant requirement

- Execution of Warrant Must Be Reasonableo Traditional Understanding:

Warrant required for things or in places listed in the “unreasonable searches” clause

A warrant issued upon less than probable cause was per se unreasonable

o Modern Understanding: Reasonableness is paramount and requires balancing of:

Interests of law enforcement Privacy of the individual searched

Warrants are unnecessary for: Public seizures of persons (arrests) (Watson) Searches of vehicles (California v. Carney) (recreational vehicle) Routine inventory searches of all items and containers in vehicle

or possession of arrestee (Colorado v. Bertine)

- Prerequisites for a Warranto Neutral and detached magistrate:

Judicial officer must be formally and actually separate from law enforcement

Legal training is not required (Shadwick) (municipal clerk was “neutral magistrate”)

Officer, though formally judicial, who is lead prosecutor in investigation is not neutral and detached magistrate, despite uncontradicted probable cause (Coolidge)

Issuing judge may not have pecuniary interest in issuance of warrant (Connally)

o Oath or Affirmation: warrants may not be issued unless there is probable cause supported by oath or affirmation

Affidavit is presumed valid – but defendant may challenge the affidavit on the grounds that the affidavit contains:

False statement Made by affiant police officer Either knowingly and intentionally or with reckless disregard for

the truth Neither inadvertent, negligent or misstatements, or false

statements by informants will suffice False statement was necessary to magistrate’s finding probable

cause – if sufficient information w/o false statement, then it is a harmless error

o Particularity Requirement: warrant must describe with particularity “the place to be searched and the persons or things to be seized”

Place to be searched: an officer “with a search warrant can, with reasonable effort ascertain and identify the place” (Steele)

Identifying the place: o Urban places: by addresso Rural places: by description, coordinateso Multi-unit dwellings:

Probable cause for all units (to search all) or a particular unit must be specified

If multiple units not reasonably apparent from outside – validity must be measured by information known at the time that warrant issued (Garrison)

Reliance on affidavit: warrant can cross-reference other documents if warrant uses appropriate words of incorporation AND if supporting document accompanies warrant (Groh)

Persons or things to be seized Factors which demand greater particularity

o Innocent / common uses of itemso Potentially innocent among other items of innocent use

Factors which lessen particularityo Unique / highly identifiable items

Contraband

The ultimate description is not required – but something more than “just a quantity of tires” is

o Good Faith Requirement: Cost / benefit analysis: deterrent Exclusionary rule is not required by Constitution Prosecution may introduce evidence for where a warrant was found to

lack probable cause if police reasonably (but erroneously) relied on search warrant, - which they believed to be valid (Leon)

Where affiant brought wrong form and judge signed wrong form – suppression not appropriate b/c there was an “objectively reasonable basis for the officers’ mistaken belief (Shepard)

Good faith inapplicable where even a cursory reading would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal (Groh)

- Execution of Search Warrants: execution must be reasonableo Issuance: federal magistrate or state court within districto Things Seized: contraband, property, instrumentalities, fruits of a crimeo Staleness: most states require execution within 10 dayso Time of Execution: some states prohibit nighttime searches

Daytime before 10:00pm Many states require special showing (e.g. exigent circumstances) to

conduct a nighttime search – but Constitution does not require this (Gooding)

o Knock-and-Announce Rule: police may not forcibly enter a home to execute a

warrant unless they first knock at the door (or ring the bell), identify themselves, state their purpose for seeing entry, request admittance, and are refused admission (Wilson)

Knock-and-announce may be dispensed with when the police: Have chased the person named in warrant to his home in hot

pursuit Have reasonable suspicion that evidence may be imminently

destroyed Have reasonable suspicion that there is a risk of harm to the

officers or others

Violation does not depend on whether officers destroyed property to enter (Ramirez)

Length of time before entering, absent exigent circumstances, depends on:

Whether the occupant’s “failure to admit the police suggested a refusal to let them in”

How long it should take to get to door based on what the officers knew and the size of the establishment

- Detention and search of persons on premises where warrant is executed: o Private Homes:

Brief detention (seizure) of homeowner leaving house to be searched is permissible because: l

Limited intrusion Limited risk of police abuse b/c police are focused on search and

not stigmatizing b/c occurs at one’s own residence (Summers)

SCOTUS has not addressed scope of police officer’s authority to search a person during execution of a search warrant to search a private residence

o Public Places: Mere proximity to others or to a place where a warrant is executed does

not give probable cause to search everyone there when they exhibit no suspicious behavior nor have any known connection (Ybarra)

When warrant is executed in a public place, police may not extend the search to persons not named in the warrant who happen to be present at the premises identified in the warrant unless reasonable suspicion that such persons are armed and dangerous – then frisk under Terry

- Intensity and Duration of the Search: o Scope of search limited by size, condition, or type of items sought to places of

sufficient size, condition or type to contain the items named in the warranto Duration of the search may not exceed that necessary to obtain the items named

in the warrant

- Presence of Third Parties: o Presence of third parties for identification of stolen items is permissibleo Presence of the media is unconstitutional b/c it was not an aid in execution of

warrant

- Delivery of Warrant: copy of warrant must be delivered at place searched

- Preference for Warrants: preference for searches executed pursuant to warrant unless: o Exigent circumstanceso Lessened expectation of privacy o Routine police activityo Need for “bright line” rules governing police conduct

Warrantless Searches and Seizures:

- Warrantless Arrests, Searches and Seizures of the Person (probable cause required):

o Felonies in officer’s presence: police may arrest in a public place and if there

is probable cause to believe the suspect committed a crime Warrantless arrest permitted even if enough time to get a warrant and no

practical impediment to doing so (Watson)

o Or arrestable offenses at common law: offense must have occurred in officer’s presence and constitutes a breach of the peace (relevant but not dispositive)

Means of the “seizure”: it is constitutional to prevent escape using

deadly force when officer has probable cause to believe suspect poses a threat of serious physical harm to the officer or others (Garner)

Excessive Force: reasonableness standard of Garner applies: o To all claims of excessive force (whether arrest, stop or

other seizure) o Requires attention to facts and circumstances in each

case including: Severity of crime Whether suspect poses immediate threat to

safety of officers and others Whether he is actively resisting arrest or

attempting to evade by flighto Must make allowance for the fact that officers have to

make split second decisionso Asks whether officers actions are reasonable w/o regard

to motivation

Judicial review of warrantless arrests: 4th amendment requires judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest

Grand jury indictment will satisfy probable cause determination – review need not be formal adversarial proceeding

o How Long? Judicial determinations will meet Gerstein if

conducted within 48 hours of arrest Hearing may violate Gerstein if unreasonable

delay If defendant does not receive hearing within 48

hours – the burden shifts to government to show that delay was not unreasonable (e.g. unavoidable delays due to transportation from one facility to another)

o Remedy if individual is prosecuted following a violation: the court has not answered this question

After-the-fact judicial determination of probable cause does not make evidence admissible obtained in violation of search warrant (Powell)

Suppression of statement obtained elsewhere is not required b/c of defendant’s warrantless arrest inside premises in violation of 4th (Harris)

o Search Incident to Lawful Arrest: This power exists regardless of the seriousness of the offense, or

whether it is a jailable offense under statutory law

Regardless of whether or not an arresting officer suspects weapons, evidence, or dangerous persons will be discovered, contemporaneous with a custodial arrest, an officer may conduct a warrantless search of:

Arrestee’s person: including pockets of clothing, containers found therein, containers associated with him, or any bags large enough to conceal a weapon or crime evidence

Area within arrestee’s immediate control or “grabbing area” o Generally based on:

Whether he is hand-cuffed in front or behind his back

His size and dexterity Size of space he is in Whether containers within reach are open or

locked Number of officers relative to suspects

o Arrests in a home or other structure: police may not search entire house w/o warrant (Chimel)

o Arrests on the road: when occupant of vehicle is arrested, police may conduct a warrantless search of passenger compartment and all containers therein whether open or closed

Trunk and engine area fall outside this rule b/c not within immediate “grabbing area”

Immediately adjoining spaces: if arrest occurs in a home, police may conduct a protective sweep to search for dangerous persons

o Search limited to cursory visual inspection of places in which person could be hiding

o May last only as long as necessary to dispel reasonable suspicion of damage or to complete the arrest and depart premises

Four dissenters argue that rule that fines that custodial arrest is reasonable in all circumstances is against 4th and would require that where there is probable cause for fine only offense, police officer should issue citation unless he can point to articulable facts that taken together with rational inferences reasonably warrant the additional intrusion of full custodial arrest

o Unnecessary, arbitrary, pretextual arrests Material witness arrests: permissible on a need-for-custody showing

that: Testimony of person is material It may become impracticable to secure his presence by

subpoena

Ulterior motives / pretext: ulterior motives can invalidate police conduct

Lack of pretext and selective enforcement of traffic laws in practice

Pretext and equal protection: in order to establish selective protection defense in criminal case – claimant must show:

Policy and discriminatory effect Policy was motivated by discriminatory purpose

- Warrantless Entries and Searches of Premiseso Incident to Arrest / Under arrestee’s immediate control

Reasonable to search area “within arrestee’s immediate control (Chimel)

Search is incident to arrest if it is substantially contemporaneous with it

Officers may look in other areas of defendant’s home after he has been placed under arrest when:

For arrestee to put on street clothes (Giacalone v. Lucas)

Protective sweep : when arresting defendant for a violent crime – officers may look in closets and other spaces w/o reasonable suspicion or probable cause (e.g. if reasonably suspects accomplices might be present or area to be swept harbors dangerous individual) (Buie)

Warrantless entry following arrest elsewhere: every arrest must be presumed to present a risk of danger to arresting officer and that arrestee will try to escape

Not unreasonable for officer to monitor arrested person, as a matter of routine, following arrest

o Plain view: Warrantless seizure while in premises to arrest: if officer is lawfully in

premises to arrest, he may observe certain items not within immediate control of suspect, which will be subject to seizure

Officers may not inspect or move items to ascertain their illegality Requirements of Plain View:

o Officer’s original intrusion is lawfulo Item is observed while officer is confining her activities

to the permissible scope of that intrusiono It is immediately apparent that the item is contraband

or evidence of a crime

Discovery of evidence in plain view need not be inadvertent

Other senses, like smell and hearing, can provide probable cause to search (e.g. smell of marijuana)

o Exigent circumstances: Prerequisites:

Circumstances presented police with sufficiently compelling urgency making resort to warrant impractical and risky

Police had justification amounting to probable cause that items relating to a crime would be found (search) or that suspect committed a crime (arrest)

Fact-specific factors: Degree of urgency, taking into account time necessary to obtain

warrant Reasonableness of belief that contraband is about to be

destroyed or removed Possibility of danger to police who are watching location

Common behavioral characteristics of persons involved in particular criminal activity (e.g. narcotics dealers tend to be armed)

Indication that suspects were aware that police are on their trail Whether emergency exception arose from actions of police

themselves

“Dorman” factors to determine exigency: Grave offense, particularly crime of violence Suspect is reasonably believed to be armed Probable cause to believe suspect committed crime involved Strong reason to believe suspect is in the premises being

entered Likelihood that suspect will escape if not swiftly apprehended Circumstance of entry is made peaceably, though not consented Time of entry – whether it is made at night (although a factor

considered re: impracticality of obtaining warrant, also impacts calculus of reasonableness)

Arrests: arrest on the street does not provide its own exigent circumstances to justify a search of the house

Search may be incident to arrest only if it is substantially contemporaneous w/ arrest and is confined to immediate vicinity of the arrest (Vale)

Police may effect a warrantless entry to arrest when in hot pursuit

Seriousness of offense Gravity of crime and likelihood that suspect is armed are factors

to be considered in assessing whether exigent circumstances exist

Police may remain briefly on the scene following homicide w/o warrant to investigate cause

General search unreasonable when police summoned to provide medical assistance, have secured premises and victims, but evidence could be seized in plain view

Application of exigent circumstances exception in context of home entry should rarely be used when there is probable cause to believe minor offense has been committed

o Incidental seizures Where officers having probable cause enter premises and arrest for no

more than the period involved, secure the premises, and in good faith in process of obtaining warrant – not violation of 4th amendment

Where police officers remained for 19 hours so warrant could be obtained (Segura)

- Warrantless Searches and Seizures of Vehicles and Containers (probable cause required)

o Vehicles Reasons for Exception:

Mobility: vehicles stopped on open road may be searched w/o warrant if officers have probable cause to believe there was contraband or other evidence b/c vehicles are mobile

Reduced expectation of privacy in vehicles due to public driving and extensive regulation

o Exception applies even when vehicle is motor home parked in a lot but not fixed to the ground

Justification for Search: Probable cause only: A vehicle that could have lawfully been

searched on the road was reasonably searched later because of the lessened expectation of privacy, but the probable cause is to search “a particular article for particular articles.”

Warrantless Seizure of Automobile: considerations of exigency when item is mobile is applicable were warrantless seizure of vehicle is at issue

Limits: if there are grounds to make warrantless search of car, but no grounds to arrest for search incident to arrest – occupant cannot be searched if the items are of a nature that could be concealed on his person

o Containers in vehicles: if there is probable cause to search a stopped vehicle, the search may extend to any part of the car (trunk, glove compartment, inside upholstery) and containers in the car that might contain the object of the search

This rule applies to a search of the entire car, even where police only have probable cause to search a container within the car and lack a warrant for the container

Containers in cars are governed by searches of cars The search is limited only by probable cause to search, size and shape

of items sought Effects of passengers may be inspected in the car, even if the police only

have probable cause for driver

o Incident to arrest of person in vehicle: police may as a contemporaneous incident to arrest of person in vehicle, search the passenger compartment even if occupants are no longer in the car and have been secured

This applies even if occupant of the vehicle is arrested after he has exited the car and is therefore a recent occupant

SCOTUS unclear on whether search of car should be limited to evidence of arrestable offense or to protect officer safety

o Inventory searches: reasonable police procedures administered in good faith where police conduct an inventory search of an automobile is not prohibited

Terry Stop and Frisk – Police Encounters Short of a Search or Seizure (no probable cause)

- Stop: police may stop a person when the officer has reasonable suspicion to believe that criminal activity may be afoot

o Balancing Test: consider governmental interest in conducting stops and frisks v. intrusion on liberty

o Reasonable Suspicion for Stop: reasonable suspicion is articulable facts and rational inferences

Permissible Bases for Suspicion: Mere physical presence around known or suspected criminals

is not enough

But all facts, even those significant only to a trained officer, under totality of the circumstances may be considered

Basis must be objective: “hunch” or “feeling” is not enough Reasonable suspicion can be based on observation and profile

It need not be based on personal observation by officer

It may be based on reliable informant’s tip

Anonymous tips: will not support a Terry stop absent some indication of credibility

o Anonymous tip + police corroboration + informant’s ability to predict future action is sufficient justification for stop

Suspicion must be “particularized” – directed at specific person who is stopped

Requires suspicion of crime done recently, imminent or ongoing It need not be, however, and may be for a completed felony

o Scope of the Stop Brief detention for investigation:

Courts weigh degree of intrusion and amount of force on subject to determine whether it has become equivalent of arrest

o Detention for fingerprinting impermissibleo Reasonable suspicion will not suffice if subject brought

to station and detained for questioning

How Long?o Investigative detention must be temporary and no longer

than necessary to dispel the officers suspicionso Must be least intrusive means reasonably availableo No bright line rule re: length of Terry stop – need not be

less than 15 minutes – 16 hours once held permissible

Stop should be limited to scope of the circumstances which justified it in the first place

o Request for identification has immediate relation to circumstances which justified stop

Techniques used during routine traffic stops Dog sniff: does not change the character of a stop that is lawful

at its inception and otherwise executed in reasonable manner, unless dog sniff infringed reasonable expectation f privacy

Temporary seizure of effects: may be made upon reasonable suspicion that effects hold contraband or evidence

If effects seized from owner, rather than third party (like airline) the permissible duration is no more than would be allowed for

investigative stop of person b/c detention of effects (e.g. luggage) detains person

A diligent investigation, which cannot be completed more quickly, may justify longer delay

o Police Action Short of a Stop: Police Pursuit: no seizure occurs when police have not caught or

placed physical restraint on him – there must be force or submission for seizure to occur

Police questioning in inherently restrictive atmosphere Mere encounter or questioning: not a seizure

o Specific Examples: On a bus: police may use inherently restrictive

aspects of situation (e.g. being on a bus) to aid pressure of questioning – especially if no threats, intimidation, force

At work: interrogation relating to one’s identity or request for identification does not constitute seizure (e.g. factory sweeps)

o Factors: Presence of several officers Display of weapon Physical touching of motorist Use of intimidating language or tone

o Example: Vehicles may be stopped if reasonable suspicion that traffic violation occurred

- Frisk: a “protective search for weapons”o Degree of suspicion: officer must have reasonable suspicion that suspect is

armed and dangerous

o Scope: generally limited to extent necessary to remove threat

Intrusiveness: if police feel something beneath clothing that feels like a weapon, he can reach beneath clothing to retrieve the weapon

Plain feel: if object found during frisk, once determined not a weapon, any additional “plain feel” is invalid

Protective search: just b/c a person is detained does not mean that the area around him may not be searched for officer’s safety

Administrative Searches: searches for non-criminal purpose (no warrant or probable cause required)

- Requires: Neutral criteria that guard against arbitrariness – and limits on police discretion (e.g. policy)

- Three Types: o Neutral criteria and no suspicion (e.g. checkpoints, safety inspections)o Individualized suspicion (e.g. roving border, school, house of probationers)o No suspicion or neutral criteria (e.g. parolee)

Consent:

- Voluntariness: consent must be voluntarily giveno Totality of Circumstances:

Knowledge of right to refuse consent is one factor Consider how actual custody would affect this

- Third-party consento Third-party authority: consent is valid when facts known to the officer at the

time suggest that third-party has authority to consent, even if actual consent is lacking

Network Surveillance: - Fourth Amendment Rights on a Network- Rights in Content Information- Rights in Non-Content Information

FIFTH AMENDMENT

5 th Amendment : no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service time of war or danger; nor shall any person be subject for the same offense to be twice put in jeopardy for life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or process without due process of law

Elements: - “Persons”

o Fifth amendment is a personal right – one cannot rely on the 5th amendment for other people

- “Compelled”o State’s use of contempt power is compulsion b/c it poses substantial punishment

on person who claims the privilege – presents the witness with the cruel trilemma of choosing between the following, which could lead to imprisonment:

Self-accusation Contempt Perjury

- “Witness Against Himself” o The 5th amendment protects only against compelled disclosure of testimonial

evidence If evidence is non-testimonial, the government can compel its production

Express or implied assertion of fact that could be true or false subjects a witness to cruel trilemma of punishment for truth, falsity, or silence

Witness can be compelled to produce DNA evidence, photo lineups, fingerprints, handwriting samples, blood and speech comparisons if probative effect of comparisons must be the comparison and not the actual words spoken

- “Criminal Case” o Prohibits government from compelling individuals to provide incriminating

testimony in any proceeding if their answers might tend to incriminate them in ongoing or future criminal proceeding

- “Against Himself”o Immunity takes away the 5th amendment privilege

Interrogation and Confessions:

- General: McNabb-Mallory rule prohibits confessions obtained during period of unnecessary delay when arrestees are not taken promptly to a judicial officer after arrest

- The Basic Framework: o Legal Presumptions

Without the warnings, statements are presumed to be coerced Giving the warnings results in presumption that subsequently elicited

statements w/ valid waiver were not “coerced”

o Implicit Factual Presumptions Giving warnings enables suspects to enforce their 5th amendment rights Giving warnings enables intelligent waiver of a suspects 5th amendment

rights

- Confessions and Mirandao Introduction to Miranda

The Miranda Warnings The suspect has the right to remain silent Anything he says can be used against him in a court of law He has the right to the presence of an attorney If he cannot afford an attorney, one will be appointed for him

prior to any questioning if he so desires

Adequate Warnings: no talismanic incantation required – test is whether warnings reasonably convey to a suspect his rights as required by Miranda

What must suspects be told? o Juvenile need not be told that availability of appointed

counsel is immediate and does not depend on parents’ wishes or indigence

o Suspect may be told of right to appointed counsel “if and when you go to court”

o Suspect may be told of right to appointed counsel “before answering any of the officers’ questions and that the right may be invoked anytime during the interview

o Suspects need not be told full consequences of a decision either to invoke or not invoke the privilege against self-incrimination (except that statements can be used against them), or that family, friends or counsel believe that they should not waive

o Authorities need not tell suspect precise subject of interrogation, and one interrogation can lead to different subjects, w/o violating Miranda, so long as initial waiver was valid

Incomplete or misleading warnings: court tolerates some ambiguity – but totality of the warnings must adequately convey the meaning of the Miranda rights

o Court invited creation of other “equally effective” standards to protect a person’s 5th Amendment rights –

but court has not recognized any alternate rules as adequate Miranda substitutes

Ineffective “midstream” warnings: police cannot question first and warn later – warnings given “midstream” b/w two interrogations that are “close in time and similar in content” do not reasonably convey Miranda

o Miranda Triggers: Whenever a person is subjected to custodial interrogation For any offense, even a minor traffic misdemeanor Questioning in a simple traffic stop is not custodial interrogation

o Custodial Interrogation: triggers the duty to give Miranda warnings

Meaning of Custodial: Custody: Perspective of suspect (age may matter): would a

reasonable person in suspect’s shoes think s/he was in custody

o In custody at the station or otherwise deprived of freedom of action in any significant way

o In prison on another chargeo In home after arrest b/c:

At home at night with many officers can be police dominated

Lack of freedom to leave from home can be just as coercive as anywhere else

Factors: purpose of investigation, location and length of the interrogation, voluntariness, person’s awareness of her freedom to leave the scene, any form of physical restraint, use of coercive interrogation methods

Not Custody:o Defendant is not in custody just b/c he is subject of an

investigationo Voluntarily in police station soon after crime and after

informing police about incriminating evidenceo Brief roadside questioning in typical roadside traffic stop

– as long as it does not reach equivalent of arrest (e.g. would a reasonable person think he is arrested)

Traffic stops are in public – so less police-dominated

Usually brief, one or two officers Allow a moderate number of questions

o In probationer’s mandatory interviews w/ a probation officer, so long as a probation not conditioned on waiver of privilege against self-incrimination

o Questions by undercover officer posing as inmate if defendant is incarcerated

Mere fact of custody does not mean “custodial” – consider due process

Disguised person does not cause compulsion that officer’s can

Meaning of Interrogation (or functional equivalent): Perspective of officer: any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating statement from the suspect

Consider suspect’s perception (including unusual susceptibility) and not intent of police

Not Interrogation: o Spouse: allowing arrestee’s spouse to speak with him in

presence of a police officer is not interrogation

o Public safety exception: Miranda does not apply to police questioning about a weapon under the public safety exception

Allows police to ask an arrestee a question about the location for a weapon that the arrestee may have abandoned or hidden in a public area near the scene of arrest

o Jailhouse informants: Miranda does not apply to questioning conducted by undercover police agents

Not interrogation if person is unaware she is speaking to a law enforcement officer

o Booking questions: Miranda does not apply to routine booking questions

Routine booking questions, which allow police to gather biographical data needed for booking process is not interrogation

o The “intelligent” waiver: a suspect may knowingly and intelligently waive these rights and agree to answer questions or make a statement

Silence: insufficient to show waiver, as is merely reading rights followed by statement (w/o proof that they were understood)

Waiver must be voluntary, knowing and intelligent, looking at the totality of the circumstances

Implied or qualified waiver: can be implied through oral statements and conduct – waiver need not be explicit

Presumption is that the right was not waived Government bears burden of proving waiver

A defendant can give a “conditional waiver” (e.g. agreeing to speak orally but not signing a written confession)

o Invocation Invocation requirements:

General: o It must be unambiguous and unequivocal, whether for

counsel or silenceo Must be specifically for a lawyer or counsel – request by

juvenile to speak with his probation officer doesn’t invoke rights

o Once invoked – right to counsel extends beyond just having a chance to see one – lawyer must be present for subsequent interrogation, unless again waived

o Effectiveness or clarity of invocation of right to counsel not measured by subsequent statements

Right to Remain Silent: police must scrupulously honor the right to remain silent – but interrogation can be restarted if it is:

o Stopped immediately after initial invocationo Stopped for some significant period of timeo New Miranda warnings are administeredo Questioning addressed a different crime (perhaps)

Right to Counsel: interrogator must immediately cease interrogation, until the suspect re-initiates further conversation, or 14 days after the break in custody has passed

o Initiating further communications after invocation: after defendant invokes right to counsel, police officers cannot resume interrogation about any crime until after the suspect re-initiates the conversation

Any subsequent questioning, even about an unrelated offense, after invocation of the right to counsel is prohibited

Re-initiation of further conversation occurs whenever arrestee engages in generalized discussion about the investigation

o Asserting Right to Counsel 6th Amendment Right to Counsel: prevents police from deliberately

eliciting incriminating statements from a defendant at or after the start of adversary judicial proceedings against her

Invoking the right to counsel during interrogation (Miranda – 5th) v. attaching the right to counsel (Massiah – 6th)

Unlike the 5th Amendment, the 6th Amendment is offense specific Court has not identified significant differences b/w Miranda

“interrogation” and “deliberate elicitation” under the 6th amendment when defendants are questioned by police

Waiver of 6th Amendment Massiah: waiver of 6th amendment rights is same as standard for 5th amendment waiver

o The right to counsel does not require a 6th amendment invocation

o To conduct questioning, police must obtain a 6th amendment waiver

Invocation: the 6th amendment always requires an invocation of counsel to “cut off” police questioning

o If defendant has counsel after 6th amendment attaches, but does not request counsel, police can seek a waiver and question

o If defendant requests counsel after the 6th amendment attaches, police cannot seek a waiver and deliberately

elicit statements until counsel is present, unless defendant initiates communications with them

o Police may seek a waiver from a defendant who requests right to counsel, as long as deliberate elicitation of statements is limited to crimes other than the charged offense to which the 6th amendment has attached

Deliberate Elicitation Deliberate elicitation looks at the subjective motivation of the

police officer, while interrogation focuses on the suspect’s response

Deliberate elicitation exists in the undercover informant-cellmate context when informant is an active participant (rather than a passive listener) in conversations with defendant

Deliberate elicitation of statements, even by under cover police agents is banned

Elicitation includes both express questioning and other kinds of police statements that are tantamount to interrogation

Passive “Ear” v. Active “Agent”: deliberate elicitation exists in undercover informant-cellmate context when informant is an active participant rather than a passive listener in conversations with defendant

o Deliberate elicitation does not occur when a police informant is placed in defendant’s cell as a passive listener

o Statements obtained through deliberate elicitation by undercover agents are admissible at trial on offenses other than the crime to which the 6th amendment right has attached

Anticipatory invocation of right to counsel

Miranda abroad

o Miranda Exclusionary Rule: the fruits of custodial interrogation which violated Miranda are excluded, except:

If a violation was for the purpose of public safety If violation was incidental and prompted brief incriminating statement

followed by sufficiently distant Miranda waiver If fruit was not interrogation itself and did not involve any testimony by

defendant If violation was intentional, through deliberate strategy to distort Miranda

rule, fruits are admissible only if curative measures are taken sufficient to ensure a reasonable person in suspect’s position would understand the import and effect of the warning and waiver

Physical evidence that is the fruit of a Miranda violation need not be excluded, if the statement taken in violation of Miranda is not used at trial

Interrogation and Confessions – Miranda Alternatives:

- Torture and Interrogationo Police interrogation method of physical torture caused any confession to be

involuntary

Coercion includes physical and psychological treatment (e.g. interrogated incommunicado for 36 hours w/o rest, by relays of officials)

Several judicial approaches for evaluating allegations of Due Process violations

- Confessions and Due Process: applies a case-by-case approach in which there must be coercive police activity that overcomes the suspect’s free will, using a totality of circumstances approach

o Giving Miranda warnings mitigated coercion

o Voluntariness: coercive police activity is a necessary predicate to a finding of involuntariness – if a defendant’s free will is “overborne” by mental illness, his confession is voluntary in the absence of police coercion

The court treats the defendant’s individual frailties as relevant to its finding that a confession was involuntary

Voluntariness Factors Based on Totality of the Circumstances: Age Intelligence Education Criminal experience Mental condition Intoxication on alcohol or drugs Physical injury and coercion Threats to others Length of interrogation and number of interrogators False friend tecnhique

SIXTH AMENDMENT

6 TH Amendment : in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and distinct wherein in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense

Right to Counsel: - When is counsel guaranteed?

o Evolution of the Right Due Process: to determine whether a defendant needs counsel, due

process, case-by-case analysis is required – 6th amendment likely guarantees counsel for federal felony defendants

Counsel as a Fundamental Right: federal and state defendants who cannot afford an attorney have a constitutional right to have criminal defense counsel appointed for them under the 6th amendment

Counsel is necessary b/c states believe that attorneys are essential to the public’s prosecutorial interest - a fair and impartial system can only be a reality if indigents face their accusers w/ help of attorney

o Actual Imprisonment Defendant may not be imprisoned for any offense, whether classified as

petty, misdemeanor, or felony unless he was represented by counsel This right applies to misdemeanors where punishment is actually

imposed, not only where it is authorized

A suspended sentence that may result in “actual deprivation of liberty” may not be imposed unless defendant was represented for the crime charged

Offense-specific

An uncounseled conviction (where no prison sentence was imposed, no counsel required) may be used to enhance a prison sentence, when after being given counsel, defendant is convicted of a second crime

- When does the right to counsel start? o Critical Stages:

Right attaches to all critical stages which affect a defendant’s right to a fair trial

Critical stages: Right to Counsel: o Custodial interrogation, if invoked, or post fair

adversarial judicial proceeding b/c attachedo Post-indictment lineupso Preliminary hearingso Arraignments

Non-Critical Stages: No Right to Counselo Preliminary identification procedures

Blood samples Handwriting samples Photo identifications

o Police lineups prior to indictmento Non-adversarial detention hearingso Grand jury proceedingso Discretionary appealso Probation and parole revocationo Habeas corpus proceedings

- What does the right to counsel include?

- When does the right to counsel end?

- How effective must counsel be?

o A defendant’s right to counsel includes the right to “effective assistance of counsel”

Lineups and Showups: - Constitutional Concern- Due Process

Right to Jury Trial:

- Rule: defendant has a right to jury trial if he faces a sentence of more than 6 monthso 6 months or less is presumptively petty, not necessitating a jury trialo Defendant is entitled to jury trial only if he can demonstrate that any additional

statutory penalties, viewed in conjunction w/ the maximum authorized period of incarceration are so severe that they clearly reflect a legislative determination that the offense is a serious one – deprivation of liberty in a meaningful way

FOURTEENTH AMENDMENT

14th Amendment: nor shall any state deprive any person of life, liberty, or property without due process of law

Due Process Examples: - Jury Trials- Bodily Extractions: are these cases about compelled self-incrimination or unreasonable

search and seizureo Forced pumping of stomach shocks the conscience and violates due process

Shocks the conscience test limited to situations involving coercion and violence on the person

o Blood sample taken by doctor from unconscious accident b/c withdrawing blood is a common occurrence does not violate 5th amendment against self-incrimination

- Post-conviction Access to Evidence

Due Process, Individual Rights and Terrorism- Process Due to Enemy Combatants- National Defense Authorization Act of 2012