Criminal Procedure Outline

4TH AMENDMENT AS APPLIED TO THE STATESThe Fourteenth Amendment, Section 1- Due Process ClauseNor shall any State deprive any person of life, liberty or property, without due process of law.

Powell v. Alabama (1932) pg. 22- Sutherland-Black boys throw white boys off train. 2 Women on train told to go w/ story that they were raped.-Fundamental Right to appoint counsel for capital Ds (later expanded to felony Ds facing imprisonment in Gideon).

-Applied to ALL State cases!

Crim Pro Goals: (1) Accuracy Crim law = “innocence-weighted” which, in theory, protects innocent Ds. There are 2 ways that a high std of proof should benefit innocent Ds

(1) Encourages more innocent Ds to stand trial instead of plea bargain(2) Influences juries to vote ‘Not Guilty’ in cases involving innocent Ds.

Right to a speedy & public trial enhances accuracy in 2 ways (1) Sooner trial happens after crime, more accurate memories of witnesses.(2) Public nature of trial serves as deterrent to judges who might be inclined to favor 1 party over another.

(2) Fairness Fairness implicates equality: rich/poor, smart/ignorant, should be able to deal w/ police interrogations on more or

less equal terms. Both sides should get advantages (3) Limited Government Provisions

Don’t want govt. to intrude in people’s (innocent’s) lives too much. To do this, must say, can’t intrude on anyone’s lives too much. BoR enumerates & protects indv rights.

(4) Efficiency Trying to prevent crimes & investigate crimes that have happened w/o used huge amts of resources.

Goals conflict. EX: Exclusionary Rule. Cops barge into house for no reason; found cocaine; cops can’t use evidence in court. Sacrificing accuracy for a limited govt.

INCORPORATION14th Amend limits the state in 3 ways: No state shall…(1) Make or enforce any law that’ll abridge the privileges or immunities of citizens of the US;(2) Nor shall any State deprive any person life, liberty, or property, w/out due process of law;(3) Nor deny any person within its jurisdiction the equal protection of the laws.

Duncan v. Louisiana (1968) pg. 48- WhiteTrial by jury in criminal cases is fundamental fairness to the American scheme of justice.

-Duncan sought trial by jury for his simple assault. Louisiana Constitution didn’t allow it.-Deep commitment of the Nation to right of jury trial in serious criminal cases as a defense vs. arbitrary law enforcement qualifies for protection under Due Process Clause of 14th Amndt-must be respected by the States. Prevent Govt. oppression.

RULE: The 6th Amndt’s right to Jury Trial is a fundamental right & applicable to states pursuant to 14th Amndt’s Due Process Clause via incorporation. Note: Selective Incorporation. Does this matter? 95% of state criminal trials settled by

plea bargain today BUT potential of a jury reinforces an underlying fairness to the bargain. Backstop!

4th AMENDMENTReasonableness Clause: [The right of the ppl to be secure in their persons, houses, papers, & effects, against unreas searches & seizures, shall not be violated,] Warrant Clause [& no Warrants shall issue, but upon PC, supported by Oath or affirmation, & particularly describing the place to be searched, & the persons or things to be seized.]THE REACH OF THE FOURTH AMENDMENT2 issues to the Amendment’s scope:

1. Relating to the category of ‘persons’ who are searched2. Nature of persons who do the searching & seizing

(1) “The People” is not all-inclusive.

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United States v. Verdugo-Urquidez (1990, pg. 66) A search/seizure of prop located in foreign country, which is owned by a nonresident alien only briefly on US soil, isn’t covered by Amndt, even if search conducted by US law enforcement agencies.

-“The people” refers to class of persons who are part of a national community or who have otherwise developed sufficient connection w/US to be considered part of community. D not part of this class.

(2) Who can do the searching? Burdeau v. McDowell (1921 pg. 67)

o 4th Amndt. only limits govt. action. It doesn’t reach private searches or seizures.

EX: If B breaks into J’s home & finds drugs; B hands over drugs to the police to avoid prosecution, J cannot object to the Govt’s use of those drugs against her in a drug prosecution.- 4th Amndt isn’t violated if landlord searches tenant’s possession, or airline searches luggage, or private phone

company monitors phone calls of its employees without their knowledge.- 4th Amndt IS implicated if police investigation/participation; (Officers ask landlord to search or helps in process)

EXCLUSIONARY RULEWeeks v. US (1914) pg. 69; Day

-D charged w/ use of mail for purpose of transporting lottery tickets. D arrested by police, w/o a warrant, at his place of employment. Police searched his house w/o a warrant.-Evidence cannot be used at trial. Adopts Exclusionary Rule. Why? (1) Judicial Integrity; (2) Right implies a remedy. -Here, Exclusionary Rule only applied to Fed Govt (no incorporation). RULE: If a Fed Govt. agency conducts unauthorized S&S, it’s in violation of the 4th Amndt. But, if indv wasn’t acting on Fed authority, Amndt isn’t applicable.

Silver Platter doctrine: Ct in Weeks only applied exclusionary rule to evidence seized under “Fed authority,” left local police free to conduct unreas S&S- then give evidence to fed prosecutors “on a silver platter” to be used in fed prosecution.

Byars v. US (1927) pg. 71 -State police conducted their search accompanied by Fed agent.-“Silver platter” doctrine didn’t apply to evidence unlawfully obtained during a search that “in substance & effect” was a joint state-federal venture. Noted, however, that ‘mere participation’ by Fed officer is not enough (need something more!)

Gambino v. US (1927) pg. 71 -State officers, acting alone, conducted search solely on behalf of Fed govt.-Weeks exclusionary rule applied.

Wolf v. Colorado; (1949) pg. 72; Frankfurter OVERRULED by Mapp!EXCLUSIONARY RULE is not Const required, & doesn’t apply to States because not in the Const-it is judicially-created.

-D performing abortions. Convicted by State & evidence found at his home w/o warrant used against him. He said that his 4th Amndt rights were violated. 4th Amendment APPLIES TO STATES!!-Due process isn’t confined w/in a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights. Test for Due Process: Is it implicit in concept of ‘ordered liberty’? Here, noted that many states do different things, so it was ‘obviously’ not implicit w/in this concept.-Arbitrary searches & seizures by state/local police violate concept of ordered liberty => violate 14th Amndt due process clause—but govt. can still use fruits of its agents’ Unconst conduct in criminal prosecution. Exclusionary rule has no teeth.

Rochin v. California (1952 pg. 74) Exclusionary rule in different clothingPumping D’s stomach is illegal search. -Fundamental to bodily integrity. By pumping his stomach=violation of his bodily integrity. Due Process protects life, liberty, & property (bodily integrity is property). Shocks the conscience so MUST Exclude.

Mapp v. Ohio (1961) pg. 75; ClarkCURRENT RULE- Overrules Wolf—exclusionary rule applicable to Federal & STATE courts.

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P in home wanted in connection w/ recent bombing. State Cops were refused entrance. Door forced open. Cops had a “search warrant.” Mapp placed it down shirt. Handcuffed & taken to room- cops searched room & apt finding obscene materials-4th Amndt Right of Privacy declared enforceable against States (DPC of 14th), so enforceable against states by same sanction of exclusion as used against Fed Gov. Exclusionary Rule binding on StatesWhy Exclusionary Rule? 1) Everything else (civil actions for damages/crim. prosecutions) has proven worthless;

2) Deterrence- will abide if know evidence will not be used in court; 3) Imperative of Judicial Integrity- courts shouldn’t soil hands w/ tainted evidence. 4) Having the Right to Privacy enforced on states implies a remedy!

RULE: All evidence obtained by searches/seizures in violation of the Const inadmissible in Fed & STATE Ct.

WHAT IS A SEARCH?What Govt. conduct = search of person, house, paper, or effect, & therefore, trigger 4 th Amndt protection?

Reas. Clause: Right… to be secure in their persons, houses, papers, & effects vs. unreas. S&S shall not be violated…

Katz v. U.S.; (1967) pg. 87; StewartPrevious “Trespass doctrine”- physical intrusion into a given area & not mere voice amplification is required to constitute a

4th Amndt search (Olmstead v. U.S) is overruled-D using phone booth. Cops warrantlessly listened in using recording device outside booth.-D sought to exclude people from uninvited ear—not intruding eye (phone booth was see-through)-Warrantless wiretap on public phone booth was unreas serach in violation of 4th Amnt. -4 th Amndt protects people, not places . Katz sought to preserve his convo as private (even in a public area) so it is Const. protected. Who cares where you are.

Harlan’s Concurrence Katz Test1) Victim must manifest subjective expectation of privacy.2) If so, this expectation is one that society accepts as objectively reasonable. (Ct takes restrictive view)#2 Is a function of both the ‘setting it is observed from’ & ‘vantage point’ from which observation is made (see below)

RULE: 4th Amndt governs seizure of tangible items & recording of oral stmts. Enclosed public phone booths are granted protection because they are places ppl have “a reas. expectation of privacy” Obj. expectation & applies only to the police.

APPLYING KATZU.S. v. White; (1971) pg. 95; White

Policeman informant can report/testify convos w/o a warrant authorizing his encounters & w/o violating 4th Amndt rights.-Fed authorities, working w/ informant, electronically recorded convos w/ White- later used to convict White. Authorities used radio equip to record several convos & personally overheard convos. Electronic recordings were shared w/ other agents. -Ct said D had no justifiable, Const-protected expectation that person he talks to won’t tell cops. Only way to reconcile w/ Katz: it’s different when the person who you’re talking to decides to rat you out.

RULE: Audio Recordings, obtained w/o warrant & through hidden recording devices by an invited guest, do not violate 4th Amndt. Can’t assume that the info you’re disclosing to another will be “safe” & not used against you in any way.

Is this something that the public is going to deem “reasonable”? from the Katz test.

Hoffa Lewis White Katz‘Friend’ talks to cops later Friend wired by cops Friend feeds recording to cops Cops listen inLow Risk ( Not a Search) HIGH RISK ( SEARCH!) Misplaced reliance on the loyalty of others is not entitled constitutional protection

Smith v. Maryland (1979) pg. 105; BlackmunAs soon as you transmit info to 3rd party, it’s not protected—lose reas. expectation of privacy- Pen Register CaseAre the phone numbers that one dials protected? Is finding that info a search? -NO.—in order to use phone, you have to dial the numbers & transmit numbers to the phone company & they send it off & record those numbers. In doing so, you’ve transmitted info to a 3rd party.

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Similarly (U.S. v. Miller)- imparting financial info to bank in usual course of business has no expect. of privacyRULE: A “Search” takes place within the meaning of the 4th Amndt when:(1) An indiv has exhibited an actual subjective expectation of privacy (whether he has shown that he wants to preserve

something as private) HERE THIS IS NOT MET!, AND(2) Whether the individual’s subj. expect. of privacy is one that society is prepared to recognize as reasonable

(Whether individual’s expect., viewed objectively, is justifiable under the circumstances)

U.S. v. Dionisio (1973)- Ex. No reas expectation that others will not know the sound of his voice. Govt. can force someone to submit exemplars of his/her voice- NOT a search (has been extended to handwriting/fingerprints)However, note in Skinner v. Railway Labor Execs. Association (pg. 441), Ct said blood, urine & breath analysis IS a search because it is a physical attribute not on public display.

US v. Place, (1983); pg. 112; O’ConnorDOG SNIFFS- NO REASONABLE EXPECTATION OF PRIVACY: NOT A SEARCH!

-Categorizes dog sniffs as sui generis (unique); Problem: dogs are fallable.-Luggage detained for 90 minutes while dog arrived. Dog sniff signaled presence of narcotics. Went to get a warrant.-A sniff by a police dog specially-trained to detect the presence of narcotics is not a "search" -The sniff of a dog is   intended to reveal only presence OR absence of narcotics . Because a dog sniff is such a limited test, Ct carved out this exception from broad category of "searches" for which a warrant is gen. required.

-But note: even a dog sniff of an apt is likely a search (place matters)- see Kyllo (pg. 5)

Illinois v. Caballes (2005) pg. 113; StevensOfficial conduct that doesn’t compromise any legit interest in privacy isn’t a search subject to the 4th Amndt

-Dog sniffed outside of car on highway that was stopped by police. Cops searched trunk & found marijuana.-No reas./articulable suspicion req’d to use drug-sniffing dog. Note: dog=sui generis (what else can only detect contraband?)-Here, doesn’t compromise any legit privacy interest (no legit privacy interest in illegal activity). -Dog only can find out that you’re carrying cocaine, & nothing else => no legit interest in privacy of carrying marijuana –EX: If dog can sniff out cheese in trunk, then that is a legit. interest & unconstitutional

OPEN FIELDS- NO REASONABLE EXPECTATION OF PRIVACY:Hester v. US (1924) pg. 114; Wendell Holmes

Ct. first enunciates “open fields” doctrine: police entry of an open field doesn’t implicate 4 th Amndt . -Open fields fall outside of scope of 4th Amndt- only prohibits searches of persons, houses, papers, & effects. Ppl cannot demand privacy for activities that they conduct out of doors in the fields because it is in plain view .

Oliver v. US (1984) pg. 114; PowellOpen fields don’t provide for intimate activities that Amndt is intended to shelter from govt. inference/surveillance.

-Cops, w/o warrant/PC, trespassed on D’s rural prop w/ “No Trespassing” signs, & discovered fields of weed. -Open fields don’t constitute “person, house, paper, or effect.” Entry of open fields doesn’t constitute “search” -Open Fields= “Out of doors in fields.” Curtilage= Land immediately surrounding & associated w/ home.

CURTILAGE (Land immediately surrounding & associated w/ home):US v. Dunn (1987) pg. 116; White

-DEA w/o warrant crossed perimeter fence & other fences. Used flashlight to see drug lab in barn. Entered twice the next day before receiving a search warrant. Court ruled barn was outside curtilage.-Court explained curtilage: questions should be resolved with reference to 4 factors:

(1) Proximity of area claimed to be curtilage to home. (Rural vs. Urban setting may impact this)(2) Whether area included w/in enclosure surrounding home (mark off area ‘to which the activity of home life extends’)(3) Nature of the uses to which the area is put (Here, Cops personally knew that barn was not used for intimate activities)(4) Steps taken by resident to protect area from observation by ppl passing by

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AERIAL SURROUNDING CURTILAGECalifornia v. Ciraolo (1986) pg. 117; Burger

View from plane of Curtilage of home was not a search. Met Subjective Prong BUT NOT Reasonable.Weed farm discovered from plane at 1,000 ft- Ct said since public could fly over field & see weed, it’s not unreasonable for the police to do the same. “Cops aren’t expected to avert their eyes.”-Respondent’s expectation (Built Tall Walls) that his garden was protected from such observation is unreasonable & isn’t an expectation that society is prepared to honor (2nd factor) Note: Backyard Here=Curtilage!

Florida v. Riley (plurality) (1989) pg.120; White-Helicopter discovered weed farm at 400 ft. If this was a plane, then reas. expect. of privacy because airplanes can’t fly at 400 ft (w/o violating regulations), but since it was a helicopter, no expectation of privacy. Four Limitations (highlighted)-Must not interfere with normal use of prop, reveal no intimate details, & no undue noise. Overflight cases show: Where police observations are made from location to which public has lawful access, the viewing of otherwise protected areas may not implicate the 4th Amndt.

CURTILAGE OUTSIDE HOUSE (RIFLING THROUGH TRASH)California v. Greenwood (1988) pg. 121; White

Garbage isn’t private & anything in garbage has no expectation of privacy.-D placed refuse at the curb w/ express intention to convey to a third party (garbage collector)-Police can’t reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of public. What a person knowingly exposes to the public, even in his own home or office, is not subject to 4th Amndt protection. See Smith v. Maryland (pg. 3)

Kyllo v. U.S. (2001) pg. 121; ScaliaTechnology! Here, more than naked-eye surveillance of home = unreas. Search (would need warrant)

-Police scanned house w/ heat-seeker to find weed. Scan of home took a few mins. & performed from the passenger seat of Agent’s vehicle across street from front of the house & also from street in back of house.-Core of 4th Amndt “stands right of a man to retreat into his own home & there be free from unreas govt intrusion.” Silverman-Distinguishes Katz- which said that a visual observation only isn’t a “search” at all.-Note: Scalia makes a BIG deal about sanctity of one’s home. Intimate details within.-Determining when new Tech of surveillance is a ‘search:’ When sense-enhancing technology gives police info about home that they could otherwise obtain only by physical intrusion AND technology is not in general public use.

US v. Knotts 1983 pg. 131; Rehnquist Beeper- FINE BECAUSE NO POSS. INTEREST IN CONTAINER YET!-Biz consented to cops installing beeper inside 5-gallon container of chloroform intended for sale to suspects.-Warrantless monitoring of a beeper isn’t a search/seizure under the 4th Amndt because there is no reasonable expectation of privacy- movements of car could have been observed by naked eye! (If carried inside, then probably a search).-Doesn’t equate police efficiency w/ unconstitutionally. Augmented sensory faculties. Did not elicit any info not visible.

U.S. v. Jones (2012) pg. 133; ScaliaGovt. obtained info by physically intruding on a Const-protected area. GPS Case

-Jones under suspicion of trafficking in narcotics & made a police target by FBI. Cops (w/o warrant) attached GPS to car.-Govt’s installation of a GPS device onto D’s car (personal effects) was a trespass that was to obtain information = Search!Significance: Return to prop law concepts. install of device by trespass on prop. triggered Amndt. protection.Left open: Warrantless use of GPS data w/o physical intrusion (wireless service providers; vehicle navigation services)NEW TRESPASS Jones TEST!!!!RULE: Attaching GPS device to vehicle & then using the device to monitor the vehicle’s movements constitutes a search.

(1) The Katz test remains—Katz is one option, Trespass is another (see (2)). Can be a search if it invades reasonable expectation of privacy.

(2) Trespass Test: Search if (1) Govt., (2) in an attempt to get information, (3) trepasses on (4) “persons, houses, papers, or effects” (item w/ possessory interest)- need not be any legitimate expectation of privacy!

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Scalia: “trespass itself is neither necessary nor sufficient” Not necessary because Katz test doesn’t require trespass. Not sufficient—trespass & way to get information is a search—but strict trespass is not a search.

WHAT IS A SEIZURE?Interfering w/ liberty interests.

Things that you can seize:(1) Contraband (evidence that you’re not lawfully allowed to have)

EX: drugs(2) Fruits of a crime

EX: what you stole from store—pack of diapers(3) Instrumentalities used in the commission of an offense

EX: weapon, getaway car, the mask(4) “Mere Evidence”: what you own that happens to have evidence on it- didn’t use it commit the crime

EX: splatters of blood from crime, fibers in car

U.S. v. Karo ( 1984) pg. 147; WhiteSearch once you are no longer able to “see” the info—like when garage door closes—can’t see what’s inside.

-D ordered 50 gallons of ether from Govt. informant to extract cocaine from clothes. W/ informant’s consent, agents substituted their own can w/ a beeper inside to give.-Here, Karo accepted container that ether was in (beeper and all) Act of Installing Surveillance Product is NOT a seizure. -BUT turning the beeper on & obtaining info that is not available through visual surveillance is S&S.

RULE: Installing beeper in a container of w/ orig owner’s consent is not a search/seizure. However, if info is obtained through use of a beeper device which could not have been obtained through visual surveillance, that is a search.

US v. Jacobsen 1984 pg. 148- -Seizure occurs when there is meaningful interference w/ indiv’s possessory interests in that property .

PROBABLE CAUSEPC to arrest exists where ‘facts & circs w/in officers’ knowl & of which they have reas trustworthy info are sufficient in themselves

to warrant man of reas caution to believe an offense has been or is being committed” by person to be arrested. BrinegarProcedurally, the issue of PC typically arises in one of 2 circumstances.

1) Police may apply to a magistrate for an arrest or search warrant.2) Police may conduct an arrest or search without a warrant.

In absence of probable cause, you have an unreasonable search & seizureSpinelli v. US ( 1969) pg. 152; Harlan

“Totality of the circs” is too broad. Informer’s tip is a necessary element in a finding of PC; its proper weight must be determined by more precise analysis.

-Informant had info that Spinelli was gambling & using the phones to collect gambling info.-Old AGUILAR test was cited: 1. Is the information reliable? 2. Is the informant reliable?

The court developed a new test, expanding Aguilar:1. Basis of Knowledge How does the informant know what she claims to know?2. Credibility Why should cops believe this person?

-Here, informant’s tip not enough to justify warrant because lacked detail- basis of knowledge, so no PC. The activity that was alleged was “innocent.” 1) Unknown; 2) Not Enough;-The info supporting each prong must be sufficiently specific so conclusions are meaningfully evaluated by a court.-An affidavit used to support issuance of a search warrant must set forth sufficient underlying circs, which would cause a magistrate to judge the informant’s info independently & support a finding that the informant is “reliable/credible”.

White CONCURRING:-If affidavit rests on hearsay (an informant’s report) Aguilar requires 1 of 2 things: Informant must declare either:

(1) That he has himself seen or perceived the fact or facts asserted; or

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(2) There is good reason for believing him—perhaps 1 of the usual grounds for crediting hearsay info.-Draper (pg. 160) is distinguishable: When officer saw person getting off train at specified time, dressed in & conducting himself precisely as informant had predicted, the officer had “reas grounds” to believe Draper was carrying narcotics. Note: No factual basis for knowing Draper would have drugs BUT deficiencies overcome by detailed info & verification.

-Corroboration of innocent facts may support PC.

Proving Part 1- Basis of Knowledge- Firsthand account; told directly; self-verifying details; A,B,C logically implies D.Bad: “I Heard,” “I am Guessing”

Part 2- Reliability/Veracity- Track record; potential crim liability? Admission/Declaration against his interests?Must be more than INNOCENT facts

Court says you must know: The basis of knowledge AND (2) Veracitycorroboration. Helps basis of knowledge because then have some basis of what was being

said (& they were right)Court says that you must do both of these things well (from Spinelli)

Draper: they corroborated everything; Spinelli, they corroborated only one thing.

Aguilar/Spinelli (4-1-4 Decisions) Test: (1) Credibility

Innocento Should we believe this person? Innocent Details

(2) Basis of Knowledgeo Where did the info come from? o Why does the person know?o Used to filter out information: I’ve seen it vs. I heard about it

Illinois v. Gates (1983) pg. 160; Rehnquist OVERRULES Spinelli Test!The term “PC,” according to its usual acceptation, means less than evidence which would justify condemnation.

-Drug dealer husband & wife—anon tipster tells police of their drug arrangements (wife told hairdresser) Cops verify some points—where they live (was wrong but they used to live there), that Mr. Gates has 1-way ticket to FL (get FL police to track him to hotel to see wife w/ IL plates—the 2 drive north). On the basis of this info, cops ask for warrant & get one. These were not freely-obtainable facts.-The anon. letter sent to the Bloomingdale Police would not provide a basis for a magistrate’s determination that there was PC to believe contraband would be found in the Gates’ car & home.-Nothing in letter concludes honesty or reliability. (1st credibility prong fails)-Found that Spinelli’s 2 prong test had not been satisfied.-Ex. Tip from informant whose past reliability could not be determined might be deemed adequate if the info was sufficiently detailed to justify the inference that she was speaking from personal knowledge of circs.-Evidence must give someone of reas. caution reason to believe evidence of a crime will be found at place searched.RULE: Where anon. tip is corroborated w/ actual police findings, a “totality of the circs” approach determines PC instead

of 2-pronged test of “credibility” & “basis of knowledge” from Spinelli. 4th Amndt requires no more than a finding by a magistrate that there is a “subst basis” that search will uncover evidence of wrongdoing. Need suspicious details! (maybe)

SAMPLE INTRO: We must determine whether the facts & circs w/in the knowledge of the police & of which they had reas trustworthy info were sufficient to warrant a person of reas caution to believe that contraband would be found in… [insert location]. Address basis of info (informants? Observations by cops?) Look at Spinelli factors. Credibility prong; basis of knowledge prong; Gates’ alternative indicia of reliability (self-implication of the informant in criminal activity, the

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indication of a close relationship to the subject, or the supplying of great details to subject’s activities)? Innocent/Suspicious facts? If 2 informants- mutual reinforcement may be powerful.

U.S. v. Harris (1971)- Suspect’s prior criminal activity may be used as confirmation of an informant’s tip.Sibron v. NY (1968); pg. 366- Furtive actions & flight at the approach of law officers are “strong indicia & when coupled w/ specific knowledge on the part of the officers relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” See Illinois v. Wardlow (pg. 22)

Franks v. Delaware pg. 174 (1978)- Credibility Challenge to Warrant- See US v. Leon (pg. 26) for challenge on its face.-“Warrants founded on PC must be supported by Oath/affirmation” Two requirements to challenge.-D may challenge truthfulness of stmts made under oath in an affidavit supporting a warrant under limited circs:-1) Must make a substantial preliminary showing that affidavit contains A) false statement, B) made by the affiant police officer, C) either knowingly & intentionally or w/ reckless disregard for truth. (Neg/inadvertent misstatements nor false stmts by informer are sufficient here)-2) Must be demonstrated that false statement was necessary for finding PC. Otherwise, harmless error.

Anticipatory Warrant: Based on affidavit showing PC that at some future time (but not presently) certain evidence of crime will be located a specified place. No different in principle from ordinary warrants.-Must be true that (1) if the triggering condition occurs “there is fair prob that contraband or evidence of a crime will be found in particular place” AND (2) there is PC to believe triggering condition will occur. U.S. v. Grubbs (2006) pg. 178

ARREST WARRANTSPayton v. NY (1980) pg. 179; Stevens

Even though cops had PC to arrest Payton, didn’t have PC to enter the home & search for Payton. The only way they could have entered the home were if there were exigent circs (or if had a warrant- w/ conditions)

-Cops had evidence to establish PC to arrest a suspect of murder. 6 officers broke into apt; suspect gone; gun was admitted as evidence in murder trial. Need arrest warrant to enter arrestee’s house - Must have PC person is home -Two Prong Test: Sufficient Basis to believe: 1) Suspect lives at address AND 2) Suspect was home at time of entry-What creates a sufficient basis? Eyewitnesses, Other police, etc…-Public Area (No privacy issues; Easy to escape) vs. Home Arrest-In terms that apply equally to seizures of prop & to seizures of persons, 4th Amndt has drawn a firm line at the entrance to the house. Absent exigent circumstances, threshold may not be reasonably crossed.

THE ONLY WAY A COP CAN ENTER A HOME IS:1. Arrest Warrant/Search Warrant (other’s house)2. Exigent circumstances

Warrantless home arrests are presumpptively Unconstitutional!RULE: 4th Amndt prohibits warrantless entries for searches of homes, absent exigent circs, even w/ PC.

Gerstein v. Pugh 1975 pg. 187 Remaining in Custody; Gerstein Hearing- determination of PC after warrantless arrests.-Is an arrestee req’d to remain in custody pending trial w/o any judicial determination that arrest was lawful? NO. 4th Amndt requires a judicial determination of PC as a prerequisite to extended restraint of liberty following arrest.

Tennessee v Garner 1985 pg. 188 Unreasonable Force-An arrest, even based on PC, constitutes an Unreasonable Seizure of the person if Unreasonable force used in the arrest.-Here, deadly force was used.Graham v. Connor 1989 pg 188 Unreasonable Force Standard-“All claims that law enforcement has used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the 4th Amndt ‘reas.’ std.”Scott v. Harris 2007 pg. 188 What is Unreasonable Force?-Deputy sheriff didn’t use unreas. force when he rammed a motorist’s car from behind to end long “public-endangering” car chase that began when the deputy sought to pull him over for driving 73 mph in a 55 mph zone.

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Exceptions to the Payton rule:Steagald v. US 1981 pg. 189 Need Search Warrant (w/ PC suspect is in house) to enter non-suspect’s home-Agents had an arrest warrant for L. Searched Steagald’s house (no L) but found cocaine. Ct said needed a search warrant (which would require PC that L was IN Steagald’s home) to enter non-suspect’s home.-Arrest warrant, as opposed to a search warrant, is NOT adequate to protect 4th Amndt interests of persons not named in the warrant, when their homes are searched w/o their consent & in the absence of exigent circs. Possibly extended by MN v. Olson to ‘guest’ houses. Cannot claim greater 4th Amndt protection in the home of a 3rd party than he can in his own house.

Requirements for Arrest Warrant: 1) Neutral/Detached Magistrate; 2) PC req’d based on facts/circs connecting suspect to specific criminal activity; 3) Identify person by name or w/ sufficiently specific description so that officers may locate him with reasonable effort.

Search Warrant Arrest WarrantSearch warrant gets you into place & lets you search whatever you’re

looking for listed in the warrant.Arrest warrant lets you arrest person in their

house (subj to Payton)Must be based on PC & supported by oath or affirmation. Need PC to get

Difference between PC & a warrant: PC determined first by police officer. PC + warrant is BEST because a magistrate has to approve it.

SEARCH WARRANTSSuggested 2 models for the quagmire of search warrant debates:

(1) No Lines: uses tort law as guide in proposing that hopeless quest of establishing detailed guidelines for police behavior in every possible situation be abandoned.

-Suggests that a S&S must be reas., considering all relevant factors on a case by case basis. (2) Bright Line: Ct. should enforce the warrant doctrine to which it has followed for many years.

o A warrant is always required for every search & seizure when practicable to obtain one.o Make warrant less difficult (while only marginally reducing the safeguards it provides), so # of cases where

“emergencies” justify exception to the warrant requirement become very small.Principle of Particular Justification (PPJ): MUST obtain advance judicial approval on searches/seizures through the warrant procedure. ie: if looking for a gun, you can only search in a place a gun would be.NEED: 1) Neutral/Detached magistrate; 2) PC; 3) Particularity of place & items/people

Lo-Ji Sales, Inc. v. NY (1979) pg. 195; BurgerNO OPEN-ENDED WARRANTS to be completed while search is being conducted.

-Officer obtained search warrant to seize 2 obscene videos. Judge gave warrant for that & became part of search party to obtain obscene materials (11 ppl total) Prior to judge going in, search warrant was 2 pages long. After, 16 pages long.-Judge become a member, if not the leader, of search party which was part of the police operation.RULE: Warrant must specify what the cops are looking for & must be signed by a neutral & detached magistrate.More search warrant conditions:

1) Relatively gen. description is tolerated if nature of the object to be seized couldn’t realistically be described more specifically (like paper clips- look all alike)

2) Greater generality is allowed in case of contraband3) Greater specificity is demanded if other objects or same general classification are likely to be found at

search site (like cartons of “women’s clothing” won’t do if police will be searching warehouse containing lots of cartons)

4) “Scrupulous exactitude” demanded when search encroaches on 1st Amndt concerns, as in Lo-Ji Sales

Andresen v. Maryland, (1976) pg. 198- Warrant Specificity- no general warrants-Business records/files do not offend 5th Amndt.-Warrant for general files specific enough? Here, there was enough specificity in a lengthy list of particular items related to ‘Lot 13T’ even though it then said ‘any book/record showing fraudulent intent…’

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Knock & Announce RuleWilson v. Arkansas (1995) pg. 199 Knock & Announce Rule- Even with warrant/PC, must Knock/Announce-4th Amndt. incorporates mandate to knock on door & announce identity/purpose before attempting forcible entry. U.S. v. Banks; pg. 205 says rqmt. is governed by the reasonableness clause. 15-20 secs. Ok.

Richards v. Wisconsin (1997) pg. 200- When do you not need Knock & Announce? Knock & announce (BOTH) is required unless exigent circumstances : Needs RS (not hunch) that:

o (1) Recently escaped suspect (Warden)o (2) Fear of evidence being destroyed (Robinson-ish)o (3) Fear of phys violence-need element of surprise to protect cops (Chimel, Robinson adds evidence element)

Illinois v. McArthur (2001) pg. 206- May freeze a situation to obtain a warrant.-Although cops prevented McArthur from entering trailer home, cops effectively seized premises w/o warrant:

1) Cops had PC to believe D’s trailer contained evidence of crime & contraband.2) Good reason to fear that, unless restrained, D would destroy drugs before could return w/ warrant.3) Cops made reas. efforts to reconcile law enforcement needs & demands of personal privacy. Didn’t arrest D nor

search trailer before obtaining warrant.4) Cops imposed restraint for limited period of time, reasonable to get warrant.

Executing a warrant after entry: The scope of the search of the premises:1) Cops may search containers large enough to hold criminal evidence for which they’re searching.2) May seize object not described in the warrant, if they have PC to believe it’s a seizable item.3) Third, see Maryland

Maryland v. Garrison (1987) pg. 207- Thought only one apt on 3rd floor- searched both instead.-Info that becomes available to officers immediately before/during the execution of a warrant may require them to cease or narrow their search, notwithstanding the dictates of the warrant. Must limit to what warrant intends. Here, they recognized there were 2 apts instead of one on 3rd floor. Duty to limit to correct apt- here, apts indistinguishable so okay.

Ybarra v. Illinois (1979) pg. 208- Must have independent PC ‘particularized to person’ in order to search the person.-Warrant to search a home or other premises does not provide implicit authority to search persons found at the scene, even if the criminal evidence for which the police are looking might be on them. -Here, D in bar searched because bartender supposedly dealing drugs. No independent PC here. Unreas. Search.

Seizure of persons during warranted searchesMichigan v. Summers (1981) pg. 209-Warrant to search a residence for contraband founded on PC implicitly carries w/ it limited authority to detain occupants of premises while a proper search is conducted. Reasonable to detain occupant leaving place to be searched to: (1) prevent flight of suspect; (2) protect officers’ safety; OR 3) Facilitate an orderly search.

Muehler v. Mena (2005) pg. 209 Summers also allows cops to use reasonable force.-Entered house & handcuffed sleeping woman at gunpoint. Ct says fine because danger of entering gang member’s apt.-Right of cops under Summers to detain occupant during a warranted search of residence necessarily included right to use reasonable force to secure & maintain detention of occupant.

WARRANTLESS SEARCHES/SEIZURES“Few specifically established & well-delineated exceptions” (Katz)

US v. Rabinowitz (1950) pg. 192: Overruled by Chimel- Allowed warrantless searches immediately following arrest. “The search in its entirety fell w/in principle giving cops right to search place where arrest is made in order to find & seize things connected with the crime.” Test is not whether it is reas. to procure a search warrant, but whether the search was reas.

Katz- No warrant is per se unreasonable; Exceptions: (1) Exigent Circs; (2) Search Incident to Arrest; (3) Cars/Containers; (4) Plain View Doctrine; (5) Consent

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Rationales for Warrantless: Originally: Impracticality of Warrant; Now: More of a Reduced Expectation of Privacy

(1) Exigent Exceptions Requires PC- Emergency Exception – Premised on ImpracticalityPolice must be faced w/ circs that would cause a reas person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement effortsEmergency Exception TEST: 1)The circs presented police w/ sufficiently compelling urgency, making the warrant process both impracticable & risky; AND 2) Police had justification amounting to PC to believe that items relating to crime would be found (search) OR that the suspect had committed a crime (arrest).

Warden v. Hayden (1967) pg. 209 Scope of Warrantless ‘Hot Pursuit’ Search-Cabbies saw robbers go into house; called police; entered home & found guns while looking for Hayden-Warrantless entry into home. Found suspect; arrested him; grabbed weapons in plain view (evidence & for their safety); OKHot Pursuit: Cops’ immediate pursuit of suspect fleeing the scene of crime, then may chase him into bldg or home w/o warrant to effect an arrest. Inside, may conduct warrantless search for weapons in access. Requires: PC that suspect just committed crime & he is inside the dwelling. (As in Warden, PC can be from other sources.)

Welsh v. Wisconsin (1984) p. 218; Extends Payton to scenario involving home arrest for non-crim traffic violation-Heard Welsh was driving inebriated (or sick) & entered house. Justified their action on grounds of exigency- needed to accurately ascertain W’s blood-alcohol content before the evidence would naturally be “destroyed” by passage of time. -Warrantless entry of W’s house was unlawful. Hot Pursuit must be immediate & continuous pursuit. Once pursuit turns cold, excuse for circumventing the warrant process evaporates.

Here, this was a minor offense so presumption of unreasonableness is difficult to rebut. Gravity of offense for which the suspect is sought is an important factor for emergency exception.

Totality of Factors TestMinnesota v. Olson (1990) pg. 188Police had PC that Olson was driver of getaway car involved in a robbery & murder day before but no warrant-Whether the delay for getting warrant creates an imminent risk of destruction of evidence, escape of the suspect, or danger to police or others is fact-specific to determine if warrant process was impracticable.-Failure to obtain warrant unexcused; Factors: Gravity of crime & likelihood that suspect is armed. Although this was a grave crime, Olson was only suspected to be the driver, murder weapon recovered, no suggestion of danger to others in building, & building surrounded so no chance of escape.

Brigham City, Utah v. Stuart (2006) pg. 219 Emergency Exception-Officers responded to a loud party call & saw a physical altercation through a screen door.-Cops may enter home w/o a warrant to render emergency assistance to injured occupant or to protect occupant from imminent injury. No knock-and-announce violation.Limitations: Hot Pursuit limited to those areas where the suspect or weapons may be hidden.

Kentucky v. King (2011) pg. 210; AlitoNecessity created by police for exigent circs to arise. Police smelled marijuana (PC); Knocked loudly on the door; Heard shuffling inside & thought that drug imminent destruction of evidence.

RULE: Exigency doctrine may apply even if police action (knocking on door & announcing presence) foreseeably created urgency, so long as police were not “engaging or threatening to engage in conduct that violates 4th Amndt.”

Ginsburg dissent: Exception only if exigency exists before police come onto the scene.

SEARCH INCIDENT TO ARRESTWarrant Exception #2; requires PC

Rationale: Obvious danger that the arrestee may violently resist & use weapon on person/within reach. Also, evidence could be destroyed & it is impracticable to obtain warrant after arrest.Preliminary Analysis: (1) MUST be a lawful arrest (PC) & (2) If in private bldg, need valid arrest warrant.

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Generally: Arrest MUST precede the search(Smith v. Ohio) Exception: Rawlings v. Kentucky- Allows officers w/ PC to delay formal arrest until after the search is conducted.

Chimel v. California (1969) pg. 221; StewartA warrantless search “incident to a lawful arrest” may generally extend to the area considered to be in the “possession” or

under the “control” of the person arrested. (Grabable Area)-Cops came to D’s home w/ an arrest warrant for burglary. Cops asked to “look around” house. D refused & cops searched entire home anyways. Cops made D’s wife remove drawers. Seized stuff used to convict D of burglary.-Search was unreasonable. Cops were searching for Chimel & they found him. They can’t search the rest of the house. They can only search Chimel himself & grabable area. Need a lawful arrest, but no other suspicion.

RULE: Incident to a lawful arrest, search of any area beyond the arrestee’s immediate control, is unlawful unless there’s a clear danger that evidence may be destroyed or concealed or an imminent threat of harm to the arresting officers.

US v. Robinson (1973) pg. 229; RehnquistPrivacy interest protected by 4th Amndt. is legitimately abated by the fact of arrest.

-Officer stopped D for driving w/o a license- searched his body, found cigarette package, opened it, found heroin-Search by the officer & seizure of the heroin was permissible under established 4th Amndt law.-Extends Chimel by allowing opening of CONTAINERS!RULE: In a case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement

of the 4th Amndt, but is also a “reasonable” search under that Amndt.

Scope of Warrantless Search Incident to Arrest: (1) A search may be made of the person of the arrestee by virtue of the lawful arrest. (2) A search may be made of the area within the control of the arrestee

Gustafson v. Florida (1973); pg. 237- Reaffirms Robinson- applies even for minimal crimes that end in arrest.-G arrested & taken into custody for minor traffic offense (no license w/ him). In warrantless search as incident of lawful custodial arrest, officer found weed.-Arrest for a "benign or trivial in nature" offense & lack of police regulations that req’d the officer to take him into custody didn’t alter exception to the warrant rqmt that occurs upon a lawful arrest. Reasonable arrest.

US v. Chadwick (1977) pg. 282; CJ Burger Limitation on Search Incident to ArrestOnce officers have exclusive control over property (inaccessible by D) can’t be searched w/o warrant unless exigent circs.

-FOOTLOCKER in a train- cops want to search it & they do. Needed a warrant to do this because the footlocker could not be reached by the arrestee. Found weed—indicted. No danger that arrestee would gain access to footlocker.-Exigencies aside, warrant req’d when prop comes under exclusive dominion of police authority. By placing effects inside double-locked footlocker, respondents expected contents would be free from public examination. Contemporaneous-Factors that diminish privacy aspects of auto don’t apply to respondents’ footlocker (this part overruled by Acevedo)

RULE: Search absent some exception has to be justified by PC & a Warrant.Rule: Warrantless searches of luggage or other prop seized at the time of an arrest can’t be justified as incident to that

arrest either if the “search is remote in time or place from the arrest,” or no exigency exists.Need warrant for CONTAINER if have PC for container.

GEN RULE: Line drawn based on what you have PC for—no gen warrant exception for containers like there is for cars .

What could cops do instead?1. Arrest Ds & searched incident to arrest

a. Couldn’t get into footlocker because locked & under cops’ control once arrest D2. Search at station (INVENTORY SEARCH)—can search footlocker there (following rules)

a. If following procedures, can do search at station w/o warrant.Arkansas v. Sanders (1979) pg. 289 OVERRULED by Acevedo-If PC to search auto, may perform warrantless search of auto & containers, but if only PC to search a container in the auto, police must obtain a warrant.Robbins v. CA (1981) pg. 291 OVERRULED by Ross

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-Cops stopped car driving erratically. Approached vehicle & smelled weed, => PC to search. During search, found containers, which they opened.-Warrantless search was of containers impermissible under Chadwick & Sanders

NY v. Belton (1981) pg. 238; Stewart See Gant (pg. 13)Container may be opened/closed; lawful custodial arrest justifies privacy interest infringement

-D speeding w/ others; cop stopped; not their car; cop smells weed & saw bag marked “Supergold” which officer said was weed. Cop found cocaine in D’s jacket (which was in the back seat while he was outside the car)-Ct opted for a bright-line rule. Cops may examine contents of any containers found w/in the passenger compartment. This is w/in “grabable area” of arrestee.

RULE: When a policeman has made lawful custodial arrest of the occupant of an auto, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that auto.

Thornton v. US (2004) pg. 247 Extended Belton- extends to recent occupants! See Gant (pg. 13)-Cop noticed stolen plates; T was already out of his car; searched T; Found drugs; Arrested T; Searched auto & found gun-Belton rule applies so long as arrestee is the sort of ‘recent occupant’ of vehicle such as P here.-‘Search incident to arrest exception’ allows cop to search vehicle of a person after they have been arrested

Arizona v. Gant (2009) pg. 248; StevensWhen justifications underlying Chimel no longer exist, a warrantless search of the car is NOT justified to protect the officers

or prevent destruction of evidence. Distinguishes Belton/Thornton-D arrested for driving w/ suspended license, handcuffed, locked in back of patrol car, searched car & found cocaine in pocket of jacket on backseat.-Search not lawful; Returns to justifications of Chimel: (1) Prevent Destruction of Evidence & (2) Protect the Police. Belton doesn’t authorize vehicle search incident to a recent occupant’s arrest after arrestee has been secured & can’t access interior of vehicle.

RULE: Can only search car after lawful arrest if: (1) Arrestee is unsecured & w/in reaching distance of passenger compartment at time of search; OR (2) Reason to believe that evidence relevant to the crime of arrest might be found in the vehicle.

Note: Both Belton & Thornton would have had a basis for search based on number (2). Drug arrests.Here: (1) Not met (handcuffed/in patrol car); (2) Not met (what evidence can you find in a car about suspended license?)

Knowles v. Iowa (1998) pg. 243- Traffic Citation vs. Arrest-Stopped for speeding. Issued citation (state law allowed cops to take speeder directly to magistrate). No reason to believe weapon/evidence in car, conducted full search, as expressly permitted by state law. Found weed & pipe.-Threat to officer less when issuing traffic citation than custodial arrest- full car search violates 4th Amndt.

Atwater v. City of Lago Vista (2001) pg. 244- Arrest for minor offense-P arrested & jailed for hour—not wearing seatbelt. Searched & required to remove her items. She claimed City lacked constitutional authority to permit custodial arrests for such a minor offense.-If cop has PC to believe that an indiv has committed even a very minor criminal offense in his presence, he may, w/o violating 4th Amndt, arrest the offender & conduct search incident to arrest.

Virginia v. Moore (2008) pg. 247- Arrest for minor offense-A custodial arrest based on PC (violation of state law) is “lawful” for purposes of the 4th Amndt analysis.

Example: O has PC to believe that P (hair is wet) has been trespassing in a private lake. Arrests her & seizes her small purse, & finds a ziplock bag of heroin inside. Robinson allows right to search purse absent the 2 Chimel justification (no evidence of trespassing to be found in purse, & no indication that it contains a weapon that could be used against the officer). Gant, however, would require one of the Chimel factors. Is Gant limited to autos?

AUTOMOBILE SEARCHES13

Warrant Exception #3 that Require PCRationales: South Dakota v. Opperman (1976); pg. 276; 280; 421-Impounded vehicle

-Because of mobility, less rigorous warrant rqmts govern (expectation of privacy w/ respect to one’s auto is significantly less than that relating to a home or office)

Cardwell v. Lewis (1974) pg. 279 Lesser expectation of privacy in auto because its function is transportation & seldom serves as a residence or

repository of personal effects. Car has little capacity for escaping public scrutiny. Travels public thoroughfares where both its occupants & its contents are in plain view.

Carroll v. US (1925) (in Chambers case starting on pg. 268); TaftExigent circs exception applies to car- car is mobile & can be out of jurisdiction in moments

-Bootlegging liquor, cops had PC they were bootlegging. Didn’t know who was doing it, but knew car. Stopped car, searched car, found liquor, arrested person. Did a search before arrest.-Don’t need warrant for car because it’s mobile. Unlikely car will remain in place while cops get warrant.RULE: Warrantless search okay if officers have PC to believe contraband or other evidence of crim activity in the vehicle

Chambers v. Maroney (1970) pg. 268; White Inventory SearchThere is a warrant exception to CARS. Still need PC for search.

-Golf service station robbed. 2 teens saw station wagon speed away from parking lot. Within hour, car found, 4 men arrested & car driven to station. Car searched at station, cops found glove w/ coins, 2 guns, & attndt’s cards.-Upheld warrantless search. Cops had PC to believe the car contained evidence of recent robbery & thus could’ve lawfully searched it on the road (under Carroll)-“immediate search,” it was Const-permissible to conduct delayed search as well.RULE: There’s no difference between seizing & holding a car before presenting the PC issue to a magistrate & carrying out

an immediate search w/o a warrant.

Carroll & Chambers subjected cars to warrantless search when they are stopped on the road & police have PC to believe seizable items are present. Scope of search defined by Ross & Acevedo

US v. Ross (1982); pg. 290- Defines scope of warrantless search of car. OVERRULES Robbins-Police w/ PC from informant believed narcotics in auto. Found paper bag w/ heroin in trunk. 2nd search at station & found leather pouch in trunk w/ cash. No warrant.-Premised on assumption that citizens have considerably less privacy expectations in their autos (open roads & subjected already to regulation). Can search every part of vehicle to search it (including containers inside), that may contain object of search. (Ex. can’t search glove compartment for stolen tv’s)

Preston v. US (1964) pg. 269- Search made later at diff location (no PC to believe evidence would be concealed in auto)-Arrested for vagrancy. Car towed to garage. Cops went to garage & searched car. Articles found later submitted at trial.-Once accused is arrested & in custody, then search made at another place, w/o warrant= NOT incident to the arrest. -More of a search incident to arrest case- Would not meet Gant (1) or (2).

California v. Acevedo (1991) pg. 292; Blackmun CURRENT RULENo warrant requirement to search container in vehicle if PC exists. Overruled Sander.

-D put container in his trunk that cops suspected had weed. Cops stopped D & searched container, leading to D’s arrest.

RULE: May search an automobile & containers w/in it when they have PC to believe contraband or evidence of crime is present anywhere inside. Limitation: May only search where items may be hidden

Here, cops had PC to search trunk (knew container in trunk), can’t search glove compart cause knew container was in trunk.

Acevedo Lessened privacy in the carOverruled Sander explicitly—auto exception allows you to get into containers even if that’s all you had PC for—don’t

need warrant anymore if auto exception would apply.

Wyoming v. Houghton (1999); pg. 299- May inspect passenger’s bags even if only PC to search car

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-During car search, cop found syringe for drugs in passenger’s purse- cop seized. Cops originally did NOT have PC to suspect her of drug use, nor was driver under arrest.-Cops w/ PC to search car may inspect any passengers’ belongings in car that are capable of concealing the object of the search. It’s reas. w/o showing PC for each container. “Passengers, no less than drivers, possess reduced expectation of privacy w/ regard to prop they transport in cars.” Moreover, “degree of intrusiveness on personal privacy & personal dignity” of prop search is less than intrusiveness of a search of one’s person.

Coolidge v. New Hampshire (1971) pg. 273; Murder suspect with cars in drivewayCops DO need a warrant to search a car unless it is on the highway.

-At time of his arrest, 2 of his cars were parked in driveway. Over 2 hours after he was taken into custody, cars seized w/o warrant. Cops search car for microscope evidence 2 years later, 1 year later, & 5 months after that.

Automobile exception doesn’t apply because:1. Not on road; &2. Search took place so long later

RULE: To search a car w/o a warrant, car must have been stopped on road NOT parked in the driveway. It can’t be “fleeting” in driveway. Must be danger of it driving away to justify a PC search w/out a warrant. LIMITS SEARCH OF

CAR TO WHEN IT IS NOT ON PRIVATE PROPERTY.

Can warrantless search an auto stopped on the highway where there’s PC because the car is movable, occupants are alerted, & car’s contends may never been found again if warrant must be obtained.” Opp to search is fleeting. Clashes with Chambers—automobile is enough, no other particular exigencies.

California v. Carney (1985) pg. 275; CJ Burger; Kid, motor home, sex, weed“Automobile exception”=lesser degree of protection for motor vehicles because they can be quickly moved out of the area .

-Ct added that open nature of vehicles as compared w/ a permanent structure would warrant a lesser expectation of privacy. Govt regulation of vehicles would also suggest lower expectation of privacy for a vehicle as compared to a fixed structure.  No longer about the difficulty of getting a warrant- more about the lesser expectation of privacy!

RULE: Search of mobile home justified under PC “automobile exception.” Reas. due to the fleeting nature of a mobile home. (Can extend to airplanes/boats?)

(However, if mobile home is parked on a road, it is more likely to be considered a car than a home. If it is moving, it IS a car. If it is on a lot, more likely to be considered a home).

Example: Police have PC to believe that Driver supplying weapons. Stop car. Place under arrest & search vehicle. Find documentary evidence in trunk. By lawful arrest, cannot search trunk incident to arrest. By auto exception, could search any part of car & any containers but need PC that evidence will be found within. No PC here.

PRETEXTUAL STOPS & ARRESTSState v. Ladson (Wash. 1999) pg. 260

Cops used traffic infraction as means to pull over ppl to initiate contact & questioning Based on an unsubstantiated rumor, cops followed car to cite them for infraction, found w/ expired tags. Stopped; driving w/o license; arrested; search incident to arrest; found weed. Police had authority, unless the pretextual aspects of the case affect the analysis

Whren v. US (1996) pg. 261; ScaliaCop’s subjective intentions don’t matter in 4th Amndt

-Unmarked cop car saw suspicious motorist (looking at passenger’s lap). High drug area. Police turned around & car went at an “unreasonable speed.” Cops stopped & observed 2 bags of cocaine. -Unanimous. No judge thought “reasonableness” balancing test was a good idea. If there is PC, then seizure is fine.-PC to believe law is broken outweighs private interest in avoiding police contact.

Illinois v. Lafayette (1983) pg. 238 Inventory Search-Inventory search prior to getting into prison requires warrantless search w/o PC. -Reasoning: (1) Protect arrestee from theft of her valuables in jail;

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o (2) Reduce risk of false claims of theft by arrestee; o (3) Ensure that contraband & dangerous instrumentalities (might have been missed by police in initial search

incident to arrest) are not smuggled into jail.

Florida v. Wells (1990) pg. 263- Inventory Search must have a standardized policy regulating opening of containers An inventory search must not be used as a ruse for general rummaging to discover incriminating evidence.

Colorado v. Bertine (1987); pg. 263 Inventory Search on the Scene-Police stopped D’s van & arrested for drunken driving. Officer inventoried van on the scene w/o warrant. Police followed standardized caretaking procedures & no evidence acting in bad faith for sole purpose of searching van for evidence.-Inventory Search pursuant to standardized procedures is upheld unless Govt. acted in bad faith (searched car w/ sole purpose of investigation).

US v. Villamonte-Marquez (1983) pg.264 Suspicionless boarding of a ship-Warrantless boarding of sailboat by customs officials is valid. Accompanied by state policeman & following an informant’s tip that a vessel in the ship channel was carrying marijuana. (Smelled marijuana while onboard reviewing documentation). Officials relied on a statute that allowed them to come aboard to examine documents instead of PC, etc…

Scott v. US (1978) pg. 264-“Subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional.”RULE: Because of actual violation, doesn’t matter whether cops had preconceived reason for stopping (racial or otherwise)

ADMINISTRATIVE & INVENTORY SEARCHESSearches unrelated to criminal investigations are judged on an open-ended reasonableness test

Camara v. Municipal Court (1967) pg.344 Health Code inspection of residential dwelling units.-Reasonableness Clause: Balance public interest in enforcing safety codes vs. the ‘relatively limited invasion of the urban citizen’s privacy.’ This search was okay- not personal in nature/not aimed at evidence-Limitation: need reasonable legislative/admin obj. standards for conducting an area inspection.

RULE: Rather than requiring individualized suspicion, look at reasonableness based on a weighing of the governmental & individual interests. All that matters is evenhandedness in enforcement!

Warrantless: Under the new definition, PC existed & warrant clause was satisfied once Court concluded that the area housing inspections, although lacking individualized suspicion, were “reasonable.”Under PC- individual search looked at; With Admin reasonableness- examine entire program!

Weigh: Governmental Purpose versus Privacy ConcernsImportance of the Administrative Objective to the Public Interest

1) Scope & Degree of Intrusion2) Degree of Discretion Allowed to Official3) Degree of Expectation of Privacy(Regulated vs. Non-regulated Business

City of Indianapolis v. Edmond (2000) pg. 432; O’ConnorPrimary Purpose matters!

-Invalidated traffic checkpoint program designed to interdict illegal narcotics because its primary purpose was to detect evidence of criminal wrongdoing. Motivated by General Interest in Crime Control.

Illinois v. Lidster (2004); pg.439-Police set up a highway checkpoint designed to elicit information from motorists about a hit-and-run.-Here, primary purpose was NOT to determine whether motorists themselves implicated in crime but to seek their help in solving the earlier crime. Additionally, only 10-15 sec. stops.

New Jersey v. TLO (1985); pg. 423 Special Needs Case- requires individualized suspicion (not PC)-Principal searched student’s purse for violating public school’s rule against smoking. Principal was seeking evidence.

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-Balanced child’s legitimate expectation of privacy vs. school’s need to maintain an environment in which learning can take place. No Warrant/PC std. Reasonable Grounds & Reasonable Search.

Safford Unified School District v. Redding (2009); pg. 424- Special Needs Case-Intrusive strip search of subject’s underwear for OTC drugs requires greater justification than TLO

Ferguson v. City of Charleston (2001); pg. 442- Pregnant Women Drug Testing- Look at Ultimate Objective-Not a special needs exception to warrant rqmt. Struck program down- pervasive participation of the police in monitoring (and ultimately arresting users) precluded its characterization as Admin Special Needs

Veronica School Dist. 47J v. Acton (1995) pg. 441-Policy required every student participating in athletics to submit to random urinalysis for drugs.-Upheld testing. Athletes have lesser expectation of privacy because of routine medical exams; dress together in locker room & voluntarily participate in regulated sports. Not an intrusive test either.Intrusion on Students’ 4th Amndt Interests Vs. School’s Legitimate Interest in Detecting Drug Use

Board of Education v. Earls (2002) pg. 441 Extended Acton-Upheld ‘Student Activities Drug Testing Policy’ requiring any middle/high school students participating in extracurricular activities to submit to random drug testing.

NY v. Burger (1987); pg. 263 Warrantless Inspections allowed if entity part of closely-regulated industry IF:-Admin Searches permitted in highly-regulated industries where scheme furthers a substantial govt interest, is authorized by statute, there is notice to those regulated & limits on admin’s discretion. Upheld warrantless admin inspection at Automobile Junkyard. Didn’t appear to be a ‘pretext’ for obtaining evidence.

US v. Martinez-Fuerte (1976); pg. 426 Fixed Checkpoints OK!-Vehicle occupants may be stopped for questioning at fixed interior checkpoints w/o individualized suspicion.

US v. Brignoni-Ponce (1975); pg. 426; Roving Border Patrols need RS to detain-Roving border patrols need reas. suspicion of criminal activity to detain the car occupants briefly.-Reasonable Suspicion Test= Officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly & investigate the circs that provoke suspicion.

Michigan Dept. of State Police v. Sitz (1990) pg. 426; CJ RehnquistSobriety Checkpoints do not violate 4th Amndt.

-Balance: (1) State interest in preventing accidents, (2) effectiveness in achieving this goal, & (3) level of intrusion of an individual’s privacy caused by checkpoints. (Brown v. Texas balancing test)

Delaware v. Prouse (1979) pg. 428; Random stops to apprehend unlicensed drivers/unsafe vehicles NOT Const.-No empirical evidence indicated that such stops would be an effective means of promoting roadway safety. (2) from Sitz

National Treasury Employees Union v. Von Raab (1989); pg. 441 Warrant Rqmt. would frustrate obj.-Testing not designed to serve ordinary needs of law enforcement; so balance public interest against the privacy concerns implicated by the tests to assess reasonability. Purpose frustrated if Warrant req’d because drugs/alcohol would dissipate.

Skinner v. Railway Labor Executives’ Ass’n (1989); pg. 441 Warrant Rqmt. frustrates obj.-Because of limited discretion under drug-testing regs, surpassing safety interests served by toxicological tests & diminished expectation of privacy that attaches to info pertaining to the fitness of covered employees, it is reasonable to conduct tests in absence of a warrant or RS that any particular employee is impaired.

Chandler v. Miller (1997) pg. 442 Unreasonable- drug screening for candidates of public office.-Positions did not involve high-risk, safety-sensitive tasks.

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CONSENTConsent & search incident to a lawful arrest are the two of the most common exceptions to PC requirement.

Don’t need PC at all when have consent.-Can withdraw consent after giving it.-Can place restrictions on consent (major ways, TIME & PLACE)

-But if during search, cops establish PC to continue, then they can continue despite your withdrawal of consent.

-If cop says, I have a warrant to search your house, may I come in?o This may be determined to be consent.o But, if the paper isn’t a real warrant, then definitely not consent.

Schneckloth v. Bustamonte (1973) pg. 311; StewartWarrantless searches incident to arrest are justified on ground that cops must protect themselves from possible attack &

prevent destruction of evidence.-Cop stopped car w/ 6 ppl inside- one headlight & license plate light out. Driver w/o license. Cop asked all get out & asked permission to search vehicle. Said, “sure, go ahead.” Nobody threatened with arrest prior to this time.—Bro helped w/ search by opening trunk & glove compartment. No RS to search. Cops found stolen checks. -Court Rejected ‘knowledge of right to refuse’ as prerequisite for effective consent. This is just a factor.-Adopts Voluntariness Standard evaluated on basis of Totality of Circumstances.

RULE: When subject of search isn’t in custody & State attempts to justify a search on basis of his consent, 4th/14th Amndts require that it demonstrate that consent was in fact voluntarily given, & not result of duress or coercion, express or implied.How to define voluntariness? Take into account evidence of minimal schooling, low intelligence, & lack of any effective warnings to person of his rights; & the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was voluntarily given.

**Totality of the Circumstances**

Ohio v. Robinette (1996) pg. 319 Cop need not tell motorist he is free to leave. Knowledge of ability to leave just 1 factorO pulled R over for speeding. Gave back license & issued warning. O sought consent & searched car finding small amt of weed/pills. R argued consent was involuntary because wasn’t informed by O that he was free to go after return of license.-Affirmed conviction- Although knowledge is a factor in voluntariness analysis, no categorical requirement that cops inform “detainees that they’re free to go before consent to search may be deemed voluntary.”

Bumper v. NC (1968) pg. 320 Coercion nullifies consent!-4 white cops went to 66 yr old AfAm widow. Cop said had warrant to search house, she said, “go ahead.”-Where there is coercion there can’t be consent . No Consent here! Must not be the product of threats, pressure, intimidation, or harassment. Mere submission to overpowering authority does not constitute consent.

Kaupp v. Texas (2003)- No Consent. 17 year boy awaken at 3 AM in bedroom. Cop asked to talk & boy said ok. -This was NOT consent but a ‘mere submission to authority.’

See Also Florida v. Bostick (pg. 21) & United States v. Drayton (pg. 21)

WHO CAN GIVE CONSENT?Georgia v. Randolph (2006) pg. 322; Souter

-Separated Spouses live together. Wife consents to search, other doesn’t. Police can’t search.-When ppl live together, resolution comes from voluntary accommodation- if disagree figure it out themselves. One does not have greater authority than the other.-Objection prevails over consent because of customary social usage. / Subjective expectation of privacy.-If emergency situation exists likes domestic violence, warrantless entry might be allowed.-Info from consenting co-tenant may provide enough information to establish PC to get warrant.Note: Must have (actual or apparent) authority for AREA that evidence is taken!

United States v. Matlock (1974) pg. 322 Actual Common Authority

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-GF sharing D’s bedroom could consent to search, thereby waiving his rights. -If party is absent, & their roommate consents to search, the search is okay.

Minnesota v. Olson (1990) pg. 456 -Overnight houseguests have a legit. expectation of privacy in their temporary quarters because “it’s unlikely that host will admit someone who wants to see/meet w/ the guest over the objection of the guest.” Customary Social Usage

Illinois v. Rodriguez (1990) pg. 336; ScaliaIf a person living at the home says it’s ok to search, then it’s ok to search. Apparent Authority

-Woman consented didn’t live at the home. At the time, police had reas. belief that she did, so the search was still ok. If they wouldn’t have had reas. belief that she did, search would not have been ok. Objective basis for common authority.

RULE: Warrantless entry into home is valid if cops reasonably believe person has authority to consent.3rd party need not have actual authority over the area—apparent authority will suffice.

Where facts & surrounding circs known to cop warrant a man of reas caution to conclude that consenting party had authority over premises, consent is valid even if actual authority is absent.

Florida v. Jimeno (1991) pg. 342 Scope of Consented Auto Search-Motorist consents for car search. Scope of the search may extend to anywhere in the vehicle where narcotics may be hidden (including a paper bag inside the car). Typically, scope is whatever a reas person would have consented for cop to search.

PLAIN VIEW (AND TOUCH) DOCTRINESPolicy: Once item is spotted in plain view, warrant is needless inconvenience that would not help privacy.

Triggered AFTER lawful entry- never is justification for the entry.Plain View Rules- Officer may make warrantless seizure of incriminating items while being lawful.1. Officer is lawfully present at place from which evidence can be plainly viewed.2. Seizing officer has a lawful right of access to the object itself.3. Immediately apparent that item is contraband or evidence of crime w/o necessity for any further exam. or

search.4. Horton: inadvertent viewing (didn’t mean to see/wasn’t planning on ahead of time) [not required]

Horton v. California (1990) pg. 299; StevensSearch was authorized by the warrant; the seizure was authorized by the “plain-view” doctrine.

-PC to search home. Got search warrant. During search, no stolen prop, but saw weapons in plain view & seized them. -Any manipulation of an object is a search itself & needs to be justified (e.g. looking for a gun & looked under a turntable)

RULE : Inadvertence “is not a nec condition” to plain view seizures. As long as “cop had prior justification for an intrusion in the course of which he came across a piece of evidence incriminating the accused” & so long as the scope of the

search is not “enlarged in the slightest,” it is constitutional.

Coolidge v. New Hampshire (1971); pg. 301-Police seized 2 autos parked in plain view on D’s driveway in course of arresting D, violated the 4th Amndt.-The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Plain View alone is not enough to justify warrantless seizure of evidence (Prong 2)-For Prong (2)- Ask whether the evidence is going anywhere. Is it in danger of disappearing or is there time to get a warrant?

Arizona v. Hicks (1987) pg. 305; ScaliaHad RS but no PC

-Gun fired through the roof & shot man in arm. Cops came into apt (because exigent circs), found & seized weapons. Officer saw expensive stereo components & thought (no PC though) stolen so recorded their serial #s. Impossible for cop to see w/o turning over turntable-that action amounts to a search (action unrelated to objectives of the authorized intrusion). Called HQs & they said turntable from armed robbery- he immediately seized it. Articulable facts that provide a basis for RS. Holding: Plain View S or S requires PC. (1) Was a search but was not a seizure. (2) Was not reasonable.RULE: Need PC to invoke “plain view” doctrine. Plain view w/o PC can’t replace PC requirement.

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TERRY- REASONABLE SUSPICIONSignificance of Terry v. Ohio

1) Terry transported Carama’s “reasonableness” balancing test from realm of admin searches to traditional criminal investigations & used it to determine the reas. of certain warrantless S&S’s, rather than merely to define “PC.”

2) Terry recognized that S&S’s can vary in their intrusiveness3) Because of Terry, cops may now conduct a wide array of S&S’s that are considered less than ord intrusive,

on the basis of a lesser std of cause than “PC”

Terry v. Ohio (1968) pg. 34; CJ WarrenREASONABLE TEMPORARY SEIZURE = Stop & frisk; NO PC, YES RS.

-Cop suspicious w/ D & 2 friends from his experiences. Went up after “suspicious’ movements (casing store) & considered his duty to investigate. Only knew what he saw. Cop used authority & told them to stop. Cop frisks them & finds guns.

REASONABLE SUSPICION v. PROBABLE CAUSELess than proof by a preponderance of the evidence but considerably more than an ‘inchoate & unparticularized

suspicion or hunch.’ Officer may use unique experience & training (U.S. v. Arvizu) to make determination.

Substantial Chance or Fair Probability of Criminal Activity (Illinois v. Gates)

-No PC, but reas prudent man would’ve believed Terry was armed & presented threat to officer’s safety. Weapon found. This seizure not a violation of 4th Amndt. because seizure was meant to protect officer’s safety. Officer’s safety outweighed Terry’s right to personal security.RULE: Stop/Frisk is search & seizure regulated by 4th Amndt & must be reas; to be reas, must be based on reas suspicion.

Ct defines seizure as: physical force or showing of authority, has restrained liberty of citizenCt defines search as: Serious intrusion on sanctity of a person.PC standard: substantial chance or fair probability of criminal activityScope: Ltd by exigencies that justify its initiation, therefore restricted to that which is nec. to discover weapons (usually an initial pat-down) to determine if weapon followed by reach into pockets if pat down reveals the likely presence of a weapon.

US v. Hensley (1985) pg. 363-Stops are allowed if ‘cops have RS, grounded in specific & articulable facts that a person they encounter was involved in or is wanted in connection with a completed felony. Terry stop may be applied to investigate that suspicion.Here, wanted flyer from robbery sent to other police precincts. Police recognized suspect from flyer.

Minnesota v. Dickerson (1993) pg. 363 Plain Feel Doctrine- If cop lawfully pats down a suspect’s outer clothing & feels an object whose contour/mass makes its identity immediately apparent, then may warrantlessly seize. -Here, Cocaine inadmissible because cop had to squeeze around, feel, & manipulate contents in pocket to figure out it was cocaine—regular frisk showed no weapon. Contour of Mass- Ex. Handgun; Officer can call upon his training & experience (other factors) to make this determination.

Adams v. Williams (1972) pg. 365 High Crime Area factored into Reasonableness-Informant told officer (in high-crime area) that D had gun. Saw D in car; D rolled window down. Cop reached in & grabbed gun from D’s belt. Here: (1) Tip was not PC BUT allowed to make forcible stop; (2) When approaching car, ToC warranted officer to believe safety at risk= allows ltd Terry search to uncover weapons; (3) Discovery of gun corroborated informant’s tip & authorized arrest of suspect. (4) Search of vehicle was incidental to arrest.

Illinois v. Caballes (2005) pg. 365 Dog Sniffs & RS-Cops lawfully stopped D for speeding. Used dog to sniff vehicle for drugs. Cops lacked RS to believe car contained drugs.-Seizure that’s justified only by interest in giving warning ticket can become unlawful if prolonged beyond time reasonably required to complete mission. Here, dog-sniff didn’t extend D’s seizure.

Arizona v. Johnson Traffic Stop Rule (2009) pg. 366 Terry Automobile Stops

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Rqmts: 1) Detention must be lawful; 2) Cop must reasonably suspect person armed & dangerous.-Here, driver suspected of carrying a weapon so police ordered passenger out of vehicle and conducted a patdown (officer had a reasonable belief that passenger was armed & dangerous).-Cops’ inquiries into matters unrelated to justification for traffic stop don’t convert encounter into something other than lawful seizure; as long as inquiries don’t measurably extend duration of stop

“TERRY SEIZURES” VS. DE FACTO ARRESTSDunaway v. NY (1979) pg. 367; Brennan

An investigatory stop that lasts too long turns into a de facto arrest . -Cop had lead from informant that P was involved in attempted robbery that killed pizza shop owner. Not enough for PC.-Picked up P and brought him into station. Not under arrest but not free to leave.= De Facto Arrest-Arrest violated the 4th Amndt. Didn’t matter that cops didn’t actually arrest P; since P was seized for an unreas. amt of time, he was under a de facto arrest, & therefore the cops needed more than RS to keep him there .

Line crossed from seizure to de facto arrest when the person is not free to go; long duration; interrogation RULE: Violates 4th & 14th Amndts when, w/o PC, seized petitioner & transported him to police station for interrogation.

FACTORS to consider: (1) Duration, (2) Degree of Intrusion, (3) Amount of Force

Florida v. Royer (1983) pg. 370- Degree of Intrusion- Airport Ticket/License-Here, cops at airport approached D & asked questions. Cop took license/ticket & asked to accompany to room; D followed to room & they asked for consent to search luggage. Approaching & asking questions is fine. Here, went beyond.-Cops conceded lacked PC to arrest Royer. Enough of a seizure to make it a de facto arrest.-More intrusive than necessary to effectuate an investigative detention authorized by Terry. What Cops should have done: Given back ticket/license & said he was free to leave BEFORE asking to accompany to room.

Pennsylvania v. Mimms (1977) pg. 372 Degree of Intrusion-Cop saw bulge in jacket—was a gun. Wouldn’t have been seen if not asked to get out of car.-When cop legally stops car for traffic violation, he may order driver out of car w/o further justification- being asked to expose very little more of his person than already exposed.

May stop car IF “at least articulable & reasonable suspicion”

Maryland v. Wilson (1997) pg. 372 EXTENDS Mimms to passengers!-If car is stopped for traffic stop (or under RS), cop justified to order passengers out of car too- public interest of cop

US v. Sharpe (1985) pg. 373- Rejected 20-minute limit proposed by Model Code of Pre-Arraignment Procedure.-Camper/car driving in tandem pulled over—officer smelled weed, found bales, & arrested.-“Much as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreas, common sense & ordinary human experience must govern over rigid criteria.”

Generally: IF YOU ARE DETAINED LONGER THAN IT TAKES TO ENSURE THE OFFICER’S SAFETY, THEN THE SEIZURE GOES FROM BEING A TERRY STOP TO A DE FACTO ARREST, which requires more than RS.

WHAT IS A SEIZURE?US v. Mendenhall (1980) pg. 375; Stewart & Rehnquist joined

Person is seized if, in view of all circs surrounding incident, a reas person would believe she was not free to leave.-After observing D de-board a plane (she fit in a ‘manner characteristic of persons unlawfully carrying narcotics’, DEA asked to see her ID & ticket, which were issued in diff names. They gave her ticket back (could walk away). Agents asked her to accompany them to the airport DEA office for further questions. She agreed to a search (after being told she could refuse). -Problem in Mendenhall: Cops intimidate people into thinking they cannot leave. See Drayton (pg. 21)-Here- not seized. Mendenhall voluntarily consented to search & accompany to office.

RULE: Person has been “seized” w/in meaning of 4th Amndt. only if in view of all of circs surrounding incident, a reas person would have believed that he was not free to leave.

Distinction here w/ Royer- Gave papers back!US v. Drayton (2002) pg. 383; Kennedy CURRENT RULE

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4th Amndt. says that the officers don’t have to tell people then can refuse to be searched . -Officers searched a bus. Did not inform ppl of their right to refuse search, but asked everyone if they could search them.-This was fine; Must scrupulously look at whether consent was coerced, however. Reas. Person test here said no coercion.-Coercion signaled by: Force; Intimidating Movement; Brandishing Weapons; Blocking Exits; Threats; Command -Consent can be invalidated if ppl didn’t reasonably feel as though they could TERMINATE THE ENCOUNTER w/ cops. -Although ppl may not have felt ok to leave, a reas person could have terminated the encounter. No seizure here.

RULE: Officers don’t have to tell people then can refuse to be searched. Depends on if a reas person would feel free to decline officers’ requests or otherwise terminate the encounter.

Florida v. Bostick (1991); pg.385—2 cops requested bus passenger’s consent to search luggage- found cocaine after he agreed. In this case, feeling free to leave a bus is difficult. Remanded for add’l info. Turns on whether there was coercion-Use Drayton Rule of reasonable person. Location can be one factor into whether there is coercion.

-Factors here: Guns not removed or pointed, advised he could refuse consent to search luggage.

INS v. Delgado (1984); pg. 368 –Asking Questions/ID is not, by itself, a seizure. Weapon in holster not dispositive-INS agents wearing badges & questioning workers in factory = NO seizure- presence of a holstered firearm is unlikely to contribute to the coerciveness of encounter absent active brandishing of the weapon.

Schneckloth v. Bustamonte (1973); pg. 311-Court has rejected in specific terms the suggestion that cops must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search

Bus Sweeps: Cops act w/o “articulable suspicion” in deciding which buses to board & which passengers to approach for interviewing.

California v. Hodari D. (1991) pg. 391; ScaliaDon’t have to submit to authority to be “seized.” If you feel free to terminate the encounter, if there’s been a show of

authority that has been submitted- they must grab you (that’s a seizure) or must order you to do something & you do it.-Cops in street clothes in unmarked car. 5 kids huddled around red car, saw unmarked cop car & fled- car left at high rate of speed. One ran by foot, chucked a “rock” (later found cocaine) & tackled by cops.-Kid wasn’t seized at time he dropped drugs. Seizure isn’t when cop yells, “Stop, in the name of the law!”-Must be actual application of force or submission to police authority for a seizure to occur.

RULE: Hands on OR submit to officer + getting booked OR detained for a long time = ARRESTIn order to be seized: 1. The officer must have applied physical force OR2. The D must have submitted to the authority of the officer.

Here, no physical force AND D did not submit to authority (he ran)

Brendlin v. Cal. (2007) pg. 394 Standing implication- See Rakas (pg. 24)-A car passenger, not only the driver, is seized as result of a police-ordered traffic stop. Note, if passenger jumps out of car and starts running, then Hodari would say no seizure.

REASONABLE SUSPICION“Reasonable Suspicion” Justification needed for a Terry stop.Less than PC; More than a hunch; Must be some articulable factsFacts must point to somethingobjective & articulable about particular person

If based on anon tip, need some sort of predictive quality to it if you don’t know anything about basis of knowledge

Alabama v. White (1990) pg. 396; WhiteHere, ToC used to establish RS in order to do a Terry stop of car (Michigan v. Long) vs. in Gates, where the ToC was used

to establish PC to get a warrant.-An anon tip received by cops. Ability of the informant to predict future behavior plus the detail of his tip led tip to be ok. Plus, cops investigated & corroborated the tipster’s claim.

Both facts-quantity & quality-considered in the totality of the circumstances (as Illinois v. Gates,- PC).

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RULE: When the officers stopped D, the anon tip had been sufficiently corroborated to furnish RS that D was engaged in criminal activity & that the investigative stop therefore did not violate the 4th Amndt.

Florida v. JL (2000); pg. 401- ANON TIP: NO innocent info; Need Predictive Info for RS.-Anon tip that young, black man in plaid at bus stop has gun isn’t, alone, sufficient to justify cop’s stop & frisk of them.-Problems w/ Anon Tips: 1) No ability to assess credibility/reputation for honesty of tipper; AND 2) No ability to hold informant accountable for false reporting. A known informant may be assessed for reliability.

Hiibel v. Sixth Judicial D.Ct. (2004); pg. 403; Asking for Identification-Asking for ID alone not a seizure. BUT officer’s action must be justified (reason. related in scope to the circs that justified interference in the first place); Here, asking for identification has an immediate relation to the purpose, rationale, & practical demands of a Terry stop. Additionally, if asking for ID is reas.-related, a state can criminalize failure of D producing ID.

Illinois v. Wardlow (2000); CJ RehnquistRunning from cops+being in a high crime area=RS. RS is less than what you need for PC, but more than a hunch.

-2 Cops part of police caravan in high crime area. D looked in direction & then fled. Court notes this was unprovoked flight vs. holding in Florida v. Royer (pg. 21) where ct said no indication of guilt if just go on your business.Note: See Sibron (pg. 8)- Flight alone would not be sufficient for RS.

RULE: Nervous, evasive behavior & location in high crime area are relevant factors in determining RS nec for Terry stop.

EXTENDING THE TERRY DOCTRINEMaryland v. Buie (1990) pg. 410; White

Terry frisk of a house—called a “protective sweep.” Must be in conjunction w/ arrest? (some lower cts say just lawful entry)-Armed robbery at pizza place. Guy in red running suit. Arrest warrant for B. Called B’s home first to ensure there (Payton (pg. 8)). Cops went in & said 3 times: “this is the police, show me your hands.” Guy showed & arrested, searched, handcuffed. Red running suit found.-Must be articulable facts which, taken together w/ rational inferences from those facts, would warrant a reas. prudent officer in believing that area to be swept harbors an indvidual posing a danger to those on arrest scene. -Scope: May extend only to cursory inspection to where person may hide.

When go into house w/arrest warrant & worried for officer safety, you can search for a person.Can’t search for a gun because only usable when person is there.—all subject to reason. std.

-When find person, can arrest & then do a search incident to arrest. Don’t have to stop protective sweep when find person, but can stop search for person.-Can also use evidence in plain view attained during sweep.

US v. Place (1983) pg. 416 (See pg. 24 for dog sniff analysis); Duration as beyond scope of Terry-DEA approached P at airport- requested info & sought consent to search bags—refused. Said they’d take his bags to get search warrant. Instead, took to dog sniff. Positive to 1 bag. Agents held bags all weekend for warrant.-Seizing a person’s luggage for an entire weekend until a warrant may be obtained beyond scope of a valid Terry stop.

Michigan v. Long (1983) pg. 418 Terry extended to search of passenger compartment of AUTO-Car swerved into ditch. D looked drunk. Cop saw hunting knife on floorboard. Cop subjected L to frisk & no weapons. Put light inside for other weapons & found weed. Arrested for weed. Had articulable facts.-If cop has reason to believe driver or occupant is armed & dangerous, then may frisk & also conduct ltd search of interior of car immediately w/in subject’s control. Even if suspect held outside car. Possible may break away or have access to weapons in car after released. About safety, but if finds contraband, it is admissible.

EXCLUSIONARY RULERequires suppression of evidence obtained in violation of D’s constitutional rights See Mapp v. Ohio

Deterrence Motivation: Cops less likely violate 4th Amndt if know that fruits of unconst. conduct excluded from crim trial.Standing: The Starting Point

Alderman v. US (1969) pg. 445; White

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-Ds sought to have incriminating stmts excluded because 1 or both of them were the subject of unlawful govt wiretap-Each D would have to prove that he, personally, had “standing” to raise the 4th Amendment claim. Here, they did.-Ex. B’s home subjected to unlawful search & A implicated. A cannot claim unlawful search of B’s home.

Rule: Suppression of product of a 4th Amndt violation is successfully urged only by those whose rights violated by search itself, not by those aggrieved solely by intro of damaging evidence. Co-conspirators & Co-D’s have no special standing.

Rakas v. Illinois (1978) pg. 448; Rehnquist-Police stop car. Passengers seek to suppress rifle/shells in glove compartment. Did not own car. Claimed items not theirs.

STANDING: Has this particular D’s reas. expectations of privacy been intruded upon?-Doesn’t matter if there is a prop right, it is whether D has a reas. expectation of privacy in place/property.-What Constitutes a Legit Expectation of Privacy?- (1) Right to Exclude (exercising exclusive control); (2) Using place in a private manner? (Ex. Open Fields distinction); (3) Took normal precautions to maintain privacy? -Here, rights not violated- no asserted prop interest in the place (glove compartment & area beneath seat) searched nor in items seized (claimed rifle/shells weren’t theres) => no expect. of privacy. See Brendlin (pg.22), if stop was illegal, then passenger could use “fruits” doctrine to challenge.

SAMPLE: The right to challenge a search or seizure as a violation of the 4th Amndt turns on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place (through a possessory interest, use interest, or within exclusive control- Rawlings holds that ownership of item seized is not dispositive). Rakas required a determination of whether the disputed search and seizure has infringed an interest of the D which the 4th Amndt was designed to protect. Burden is placed on D. Factors examined for this inquiry include (see above 3); (Ex. Keys? Financial/Possessory interest in items seized?)

Rawlings v. Kentucky (1980); pg. 466; Ownership alone is NOT Dispositive!-D challenged a search of his companion’s purse (he had hidden drugs).-Although he had ownership claim, rights not implicated. The following facts relating to D’s interest in purse were relevant: 1)Rawlings had known his companion for only a few days at the time of the ‘sudden bailment’;

2) He had never sought nor received access to the purse before; 3) No right to exclude others from purse & on the very morn of search, friend had rummaged through the purse; 4) ‘Precipitous nature’ of R’s placing drugs in purse showed failure to take ‘normal precautions to maintain privacy’; & 5) R admitted no subjective expectation that purse would be free from govt. intrusion.

Minnesota v. Olson (1990) pg.456 Standing ltd to persons who own/have close connection to place searched-Overnight guest (no key) & was never alone in the home has standing. Court said that society recognizes a guest’s expectation of privacy in the host’s home in such a situation.

Minnesota v. Carter (1998) pg. 458; Rehnquist-D went into apt for sole purpose of packaging cocaine in exchange for some of the product, spent only 2 hrs there & had never been to the apt before. Using house simply as a place of business.-No standing to challenge a search. Business guest had no expectation of privacy.-Lacking a possess. interest in or a close connection the place searched, D will not be permitted to pursue their claims of unconstitutional search & seizure.Standing should be observed before ANYTHING!

US v. Calandra (1974) pg. 467 4th Amendment exclusionary rule doesn’t apply in grand jury proceedings.-Exclusionary rule is a judicially-created remedy rather than a Const. right. Cost-benefit analysis weighed minimal deterrent effect of suppression in grand jury proceedings vs. cost of keeping relevant info from GJ.

US v. Janis (1976) pg. 468- No Exclusionary Rule for civil actions (Here, brought by IRS to collect taxes)-Exclusionary rule, never applied to exclude evidence from a civil proceeding, fed or state.-Deterrence benefit of extending exclusionary rule to non-criminal proceedings (civil suits, deportation or disbarment proceedings) would be comparatively slight, whereas the social costs of exclusion would be severe.

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US v. Havens (1980); pg. 469 Impeachment Exception-Havens subjected to search & shirt seized that linked to cocaine carried by other person. Shirt was suppressed. At trial, Havens denied having any connection to shirt. Prosecution was then permitted to introduce shirt to challenge credibility.-Prosecution may not use illegally-obtained evidence during its case-in-chief, but may do so if D misrepresents.

Arizona v. Fulminante (1991); pg. 556- Harmless Error Doctrine extended to admission at trial of coerced confession.-If Ct. determines jury would have convicted D even in absence of coerced stmt, then conviction affirmed. Cts consider: (1) whether conviction depended on jurors’ believing confession; (2) whether jury’s evaluation of an add’l uncoerced confession relied on its relation to coerced confession; & (3) whether admission of coerced confession led to admission of other evidence

WHEN EXCLUSIONARY RULE APPLIESWhen violate Const. rights- whether violation is intentional, reckless, negligent, or even innocent—evidence obtained in violation of those rights may not be used at that D’s criminal trial. Bright-line rule doesn’t apply anymoreAPPLIES TO VIOLATIONS OF 4th 5th 6th AMNDTS!Silverthorne Lumber Co. v. US (1920) pg. 469-To protect 4th Amndt, the “essence of a provision forbidding acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all”

Walder v. US (1954) pg. 470 Primary ‘Fruits’ Case-Govt. can’t violate the 4th Amndt & use the fruits of such unlawful conduct to secure a conviction.-Nor can the Govt. make indirect use of such evidence for its case, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence.Independent Source Doctrine Warrant is based on sources independent of the

illegal entry.Murray

Attenuation or Dissipation of Taint Doctrine

Illegally-seized evidence is not ‘fruit’ if: (1) an act of freewill by D; (2) Lengthy causal chain between illegality and seizure of the evidence; OR (3) long time period between illegality & seizure of evidence.

Wong Sun & Ceccolini

Inevitable Discovery Exception An in-progress search would have resulted in the discovery of the evidence in question.

Nix

Murray v. US (1988) pg. 471; ScaliaOfficers illegally entered & found weed bales. Got warrant, then reentered warehouse to seize weed.-Independent Source Doctrine: Evidence admissible if warrant based on sources independent of the illegal entry.

RULE: So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may be difficult to establish where seized goods are kept in police’s possession) there is no reason why indpt source doctrine shouldn’t apply.

Nix v. Williams (1984)- Inevitable Discovery Exception to the Derivative Evidence DoctrineCops deliberately elicted an incriminating stmt from W in absence of his counsel. “Christian burial speech.” Despite violation of 6th Amndt, evidence concerning body was later introduced at trial.-If the prosecution can est info inevitably would’ve been discovered by lawful means- here, the volunteers’ search- then the deterrence rationale has so little basis that the evidence should be received.

Otherwise, the Govt. would be put in a worse position than if no illegality had transpired.-There must be a basis in fact, readily verifiable, for the conclusion that discovery would have occurred.-OTHER EXAMPLES: Unlawful search incident to arrest produced evidence that would have inevitably been discovered by drug-sniffing dog; Drugs in plain view discovered in violation of Miranda admissible because already had search warrant; Inevitable discover did not apply when failure to abide by knock-and-announce rule & saw items in plain view.

Wong Sun v. US (1963) pg. 478; BrennanToy told cops about drugs at Laundromat. Cops went to Laundromat & asked Yee. Cops arrested him w/o reas cause, searched place, found nothing, & then Yee said Wong Sun had drugs. Cops went there & found drugs.-How far does Taint from Poisonous Tree go? What are admissible ‘fruits’?-Toy stmts excluded because direct product of unlawful arrest. Yee’s stmts & narcotics found in his home also suppressed because arrived at solely/directly by using illegally-obtained info from Toy.

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-However, Wong Sun’s stmts were admissible against Toy because its connection to the initial illegality was attenuated. Wong Sun made stmts voluntarily AFTER being released. Free Will!

Factors in assessing whether the poison of a const. violation has been attenuated:

1. Time period between illegality & acquisition of secondary evidence: In Ceccolini, 4 months2. Occurrence of intervening events: More links in causal chain => more attenuation.3. Flagrancy of the initial illegality: More deliberate means a more flagrant const. violation. In Ceccolini, officer

inadvertently discovered evidence- exclusionary rule would not have deterred.4. The presence or absence of an act of free will by others resulting in the seizure of fruit- Acts that demonstrate free will

(Wong Sun’s voluntary stmt) may break chain altogether. Miranda warning also could be intervening event in the analysis.

Brown v. Illinois (1975) pg. 482- Miranda Warnings & Attenuation-Rejected proposed bright-line rule that Miranda warnings automatically untaint subsequent confessions.-Whether a post-Miranda-warning stmt (which is a fruit of a 4th Amndt violation) is untainted is resolved on a case-by-case basis, based on the totality of the circs. Miranda Warnings just ONE factor!

New York v. Harris (1990);-Police had PC but no arrest warrant when arresting Harris in his home. Harris made incriminating statements. -Must weigh costs of exclusion vs. deterrent purpose served. Station house stmts not excluded (only house stmts because of violation of Payton). Distinguished Brown, because there was no PC there.

U.S. v. Ceccolini (1978) pg. 483 Attenuation-Unlawful discovery of betting slips led police to a witness who testified against shop owner.-A witness willing to testify requires “a closer, more direct link between illegality & type of testimony” to justify suppression as compared to physical evidence.-Why? Witness’s exercise of free will in deciding to testify is a significant intervening act that breaks the chain of causation from the initial illegality.

GOOD FAITH EXCEPTIONUS v. Leon (1984) pg. 484 White

-Search Warrant for Leon’s home. Judge made a mistake issuing warrant & it was invalid. However, police acted in good faith so their search was ok. Leon challenged that warrant inadequate ‘on its face.’-The officers’ reliance on the magistrate’s determination of PC was obj. reas & application of extreme sanction of exclusion is inappropriate. Marginal/nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant can’t justify the subst costs of exclusion.-Suppression remains an appropriate remedy if magistrate in issuing a warrant was misled by info in an affidavit that the affiant knew was false or would’ve known was false except for reckless disregard of truth. Franks v. Delaware

RULE: In absence of an allegation that magistrate abandoned his detached & neutral role, suppression is appropriate only if officers were dishonest or reckless in preparing affidavit or could not have harbored an obj. reas. belief in existence of PC.

Good faith exception applies if: reas cop relies on it & has everything req’d. to make it valid so could go execute it. If don’t know violating the 4th Amndt, how can you be deterred from it? (meaning exclusionary rule won’t apply)

Mass v. Sheppard (1984); pg. 496- Magistrate said he would fix error in the description of items to be seized- never did.-Court permitted intro of evidence obtained from a search conducted pursuant to warrant (violated particularity requirement) because officers executing the warrant acted in objective good-faith.

Groh v. Ramirez (2004); pg. 497- Warrant did not say anything to be seized- was particularized only in affidavit.-Warrant issued was “plainly invalid-” “failed altogether” to comply with the particularity rqmt. of the 4th Amndt.-Warrant was so obviously deficient that Court must regard the search as ‘warrantless’ w/in meaning of case law.

NOTE: Fed. R. Crim. P. 41(c)(1) limits period during which search warrant may be executed to 10 days!

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Hudson v. Michigan (2006) pg. 498; Scalia-Warrant for drugs & firearms at H’s house. Cops found both. Cops knocked & waited 3-5 seconds before entering unlocked door. No exclusionary rule for violation of knock & announce rule!-Social costs of applying exclusionary rule to knock & announce violations are considerable; incentive for violations is minimal to begin & the extant deterrences against them are substantial- incomparably greater than factors deterring warrantless entries when Mapp was decided.

RULE: Exclusionary rule doesn’t apply because little extra amt of deterrence. Must look at incremental deterrence, each little part of the rule. (like an extra 20 seconds)

Herring v. US (2009) pg. 513 CJ Roberts-Similar to Leon except person who made mistake was clerk for police dept.- supposed to maintain arrest warrants. Faulty database info on arrest warrants-Police action must be deliberate. Here, not deliberate, so exclusion has little deterrent effect.

Davis v. North Carolina (2011); pg. 520 Rule ChangePolice followed Belton in searching D’s car incident to arrest, but Gant modified those rules while his case was on appeal & search was now unlawful.-Police conduct was not deliberate, reckless, or grossly negligent, so no exclusion.

VOLUNTARINESS STANDARD3 ways regulating law of confessions/interrogations

1) Due Process (14th Amndt Fundamental Fairness)—Voluntariness Rule 1: Torture creates involuntary confessions- sufficient condition for involuntary confession, thus

violating Due Process Clause (if govt agents torturing you) Rule 2: Not torture

2) Self-Incrimination—Miranda3) Right to Counsel- Massiah

Why is Voluntariness/Due Process Important? Provides alternative method for challenging confessions where Miranda is not applicable (not in ‘custody’ or not subjected to ‘interrogation’)

Brown v. Mississippi; (1936) pg. 12; CJ Hughes-Guy (black) beaten until confessed-Confession was coerced due to the beating/whippings/pain suffered.

RULE: Confession will not be admitted into evidence if coerced through substantial physical abuse.

Rogers v. Richmond (1961) pg. 555- Cop pretended to summon man’s ill wife for questioning- caused confession.-Court must ask whether the suspect was subjected to pressures to which, under our accusatorial system, an accused shouldn’t be subjected. Concern: not-freely self-determined confession. ‘Will overborne.’

Colorado v. Connelly (1986); pg. 537- C initiated contact w/ police & later confessed to unsolved murder from months earlier. Psychiatrist said he suffered from command auditory hallucinations => involuntary?Ct says No! Not the product of police overreaching. It is police-conduct that determines involuntariness.Must be the product of POLICE Overreaching! Police must have exploited this mental condition.P after Connelly must show: (1) police subjected him to coercive conduct & (2) conduct operated on him (given his vulnerabilities & the conditions of interrogation) to produce the involuntary statement. See Below

DUE PROCESS INVOLUNTARINESS TEST (Is confession voluntary or involuntary?)1) Police must have subjected the suspect to coercive conduct; THEN Court will look at:2) Conduct was sufficient to overcome the will of the suspect (given the suspect’s particular vulnerabilities & the conditions of the interrogation) thus producing an involuntary statement.

-(2) Invokes ToC. Factor Set 1: Vulnerabilities/Characteristics of suspect including: age, education level, mental stability, state of sobriety, & familiarity w/ criminal justice process.

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Factor Set 2: Manner of Police Conducted Interrogation including: trickery, deception, threats, promises of leniency, the deprivation of access to family, friends, or nourishment, police advisement of rights, whether subjected to any physical or psychological mistreatment.Ex. The manipulative tactics used here did not produce psychological pressure strong enough to overbear the will of a mature, experienced man, who was suffering from no mental/physical illness and was interrogated for less than an hour at a police station close to his name. Extremely Fact-Specific!Same test to determine if compelled for MirandaPromises (not dispositive): Bram; Threats: Fulminante Drugs: Townsend

Lisenba v. California (1941) pg. 538; Roberts-Interrogation w/o torture. Guy killed wives to collect double insurance. Double Indemnity.-Cops’ illegal conduct (prolonged questioning of D before arraignment w/o counsel) didn’t coerce confession-stmt voluntary

Inducements, promises, threats, violence are all forms of coercion. Did it overbear will of person?

RULE: When a prisoner, held incommunicado, subjected to questioning by cops for long periods & deprived of advice of counsel, must scrutinize record w/ care to determine whether, by use of his confession, he’s deprived of liberty or life

through tyrannical or oppressive means.Ashcraft v. Tennessee (1944); pg. 554-Const stands as a bar against the conviction of any indiv in an American court by means of a coerced confession.

Reasons for Suppressing Confessions1) Prevent unreliable evidence from reaching jury2) To use only statements taken without overbearing police pressure

Spano v. New York (1959); pg. 549 CJ Warren-Spano beat up by ex-boxer. Went back & shot him. Confessed to his cop friend, then later to police.-His sentence to death conviction couldn’t stand.—his statement was involuntary-He suffered from psychiatric disorder, subjected to leading questions of a skilled prosecutor, foreign-born, never been questioned for a crime before, nor committed one ever. -Factors taken into consideration determining involuntary confession: Lack of education; Sympathy falsely aroused by “friend”; Time of night; Many officers interviewing; Detained long enough; No physical violence; Mental capacity; Leading Questions

RULE: If D’s will is overborne by official pressure, fatigue & sympathy falsely aroused, taking into the totality of the circumstances, D’s confession should not be admitted. Also, officers refused D counsel.

Arizona v. Fulminante (1991); pg. 556 THREATS-Confession obtained as a direct result of extreme coercion (to a fellow inmate cooperating w/ govt) & was tendered in belief that D’s life was in jeopardy & would be afforded protection only if he confessed. This is a true coerced confession in every sense of the word. No interrogation=No Miranda. Due Process kicks in!

Townsend v. Sain (1963); pg. 558 Drugs-Even though police did not know that “truth serum” injected in suspect at hospital, it was still involuntary.-After Connelly¸ if police really didn’t know, then would have not acted coercive & would be voluntary?!

Payne v. Arkansas (1958); pg. 555 Easy Case of threats.-Involuntary if police threaten to turn suspect over to a mob or threaten to have suspect’s kids taken away from her.

Chavez v. Martinez (2003); pg. 558; Civil Damages- No! Unless ‘Shocks the Conscience’-Held that the due process inquiry in civil cases §1983 was the “shock the conscience” test of Rochin.-Suspects have a due process right not to have involuntary confessions admitted in a criminal case against them but no right to sue for a due process violation unless the police conduct “shocks the conscience.”

Miranda- More precise and efficient than Voluntariness ToC approach.

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MIRANDA V. ARIZONABram v. U.S. (1897); pg. 560 White PROMISES FROM POLICE

-Confession may not be “extracted by any sort of threats or violence nor obtained by any direct or implied promises, however, slight. No longer followed; a promise is not dispositive to a due process violation.

Problem: Lengthy incommunicado interrogation creates an atmosphere ripe for coercion!Different Custodial Interrogation Techniques: [purpose is to get confession]Custodial Interrogation = CompulsionUse of either is against the right against “self-incrimination”-Offer legal excuses for actions to obtain initial admission of guilt-Identification Situation (placing in line-up & having witnesses (coached if necessary) come in & ID him as the suspect) Reverse Line-Up—place in line up & identified by fictitious people Discouraging Silence: Silence means you’re hiding something Good Cop Bad Cop Discourage talking to lawyer or relative: “I’m only looking for the truth; if you’re telling the truth, then that’s it.”To be alone with the subject is essential to prevent distraction & to deprive him of any outside support.

Malloy v. Hogan (1964); pg. 48- Extended the 5th Amndt to the States!

The Privilege Against Self-Incrimination & the Involuntary Confession Rule 5 th AMNDT! Counselman v. Hitchcock (1892) pg. 564-Impossible that meaning of 5th Amndt is only that a person can’t be compelled to be a witness against himself in a criminal prosecution against himself.-Extended the privilege avail. to criminal Ds & to witnesses called before formal bodies like GJs or Congress. Committees

Bram made privilege the source of protection against compelled confessions in fed prosecutions. -Protections differ in 2 other ways:(1) As to scope, privilege offers a broader protection

Schmerber v. Cal US S.Ct. 1(1966); pg. 565 Testimonial OR Communicative ONLY!Privilege protects accused only from being compelled to testify against self, or otherwise provide State w/evidence of testimonial or communicative nature. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was admissible on privilege grounds.

-Requiring suspect to stand in a line-up, provide a writing sample, or speak certain words doesn’t implicate suspect’s right not to be compelled to be a witness against himself.

(2) 2nd diff. between due process right against coerced confessions & 5th Amndt privilege goes to when a violation occurs. Kastigar v. US;

-Witnesses called to testify before GJs are compelled to testify if they’re given a “use-and-derivative-use immunity.”-Doctrine forbids use of the compelled testimony & its fruits, in a crim case vs. person providing the testimony.-Witness isn’t being compelled to be a witness against himself if the compelled testimony is never used in a criminal case against him. Violation of 5 th Amndt only occurs when the compelled testimony is used in a criminal case .

Chambers v. Florida (1940) pg. 568-White man robbed & murdered; Sheriff rounded up 20-40 black men. Ds claimed continually threatened & phys mistreated.-Court found “compulsion was applied” so unable to use any confessions if offered.

Escobedo v. Illinois (1964) pg. 567- Miranda resulted from this!-Repeatedly asked to consult with attorney (at the police station)-Court held 6th Amndt violated; Suspect who has become the focus of an accusatory interrogation is entitled to “the guiding hand of counsel” during that process. Here, charges were not yet filed but investigation focused on him.

Miranda v. Arizona (1966); pg. 570 CJ Warren

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-D arrested & taken to station. In custody, questioned by 2 cops, not told he could have attorney present. Obtained written signed confession from D.-When an indv is taken into custody or otherwise deprived of his freedom by authorities in any significant way & is subject to questioning, the privilege against self-incrimination (5th Amndt) is jeopardized.-Ds failure to ask for atty doesn’t waive right to atty unless specifically made after warnings were given.-Mere fact that D signed stmt containing a typed-in clause stating that he had “full knowledge” of his “legal rights” didn’t approach the knowing & intelligent waiver required to relinquish constitutional rights.-To combat interrogation pressures & permit a full opp to exercise the privilege against self-incrimination, accused must be adequately & effectively appraised of his right & the exercise of those rights must be fully honored. -At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear & unequivocal terms that he has the right to remain silent.

RULE: Unless & until warnings & waiver demonstrated by prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

Custodial interrogation is inherently coercive- way to get under coerciveness is to adequately inform people of their rights & to respect their rights once exercised.

SAFEGUARDS—Miranda Rights1. Right to remain silent [this is your right]2. Warned that stmt used vs. you [this is what your right means/consequences of invoking or not invoking your right]

1-2 means D knows his rights3. Right to counsel [have this right, too]4. If indigent, counsel appointed [have this right too, even if you didn’t know]

3-4 means coercive interrogations won’t happen

Are these rights Constitutional rights?-NO. Cops must let you know your rights- has to happen, but not Constitutional.-Like exclusionary rule, these 4 rights aren’t in privilege to the right of self-incrimination-Even someone like Prof. Kreag, who knows his rights, MUST be given their rights.

Illinois v. Perkins (1990); pg. 588 LIMIT to Miranda for undercover officers.-Encounters between suspects & undercover officers aren’t subject to Miranda, noting that “warnings aren’t required when suspect is unaware that he’s speaking to a law enforcement officer & gives a voluntary statement.”

Chavez v. Martinez (2003); pg 566 LIMIT to Miranda for evidence that will be introduced at criminal trial.-Reiterates that Miranda rights are not Const. rightIssues to consider when a Miranda issue can arise

1) Custodial Interrogation (triggering mechanism for Miranda warnings)a. “Custody” & “Interrogation”

2) Assuming a custodial interrogation finding, Miranda warnings required.3) If warnings not given when they should or if given but valid waiver not secured, suspect’s stmts to cops are

generally inadmissible.4) Exceptions to Miranda rule?

-Burden on police to prove D knew his rights- more than consent in 4th Amndt context. More protection!? Waiver required is knowing & intelligent. Not just voluntary.

-In Miranda, must give warnings as soon as D is in custody. [deprived of liberty—like seizure from 4th Amendment]-Need interrogation. Court worries about CUSTODIAL INTERROGATION.-Must Miranda someone before a custodial interrogation.

CUSTODYCustody Test is Objective (from perspective of Suspect)! From Thompson v. Keohane (Ginsburg);1) What are the circs surrounding the interrogation;2) Given those circs., would a reas. person have felt he or she was at liberty to terminate the interrogation & leave.

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Relevant FactorsA) Examine if Curtailed Freedom of Movement (Mathiason); B) Examine Environment (Berkemer)

Berkemer v. McCarty (1984) pg. 632; Marshall CUSTODY-D weaving in & out of traffic. Pulled over. Failed sobriety test. Arrested, taken to jail.-Not Mirandized Could argue that no Miranda rights given because D not in custody . -A person subjected to custodial interrogation is entitled to benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he’s suspected or for which he was arrested.-Traffic stops don’t require Miranda rights-Traffic stops don’t rise to the level of a police interrogation in a room—public, everyone can see.-But, if freedom taken & given a custodial interrogation, Miranda required.

RULE: If in custody while being interrogated, Miranda rights req’d. Routine traffic stops don’t rise to level warranting Miranda rights.

No meaningful or significant interference with right or freedom of movement because of environment (2). Expectation is they aren’t being targeted for a serious crime—instead, for speeding. 10-15 min stop.

J.D.B. v. North Carolina (2011); pg. 639- Applying Miranda to a juvenile-J was 13-years old; escorted by police officer to conference room at school; questioned for 30 min. No Miranda rights read until the very end. Ct. said all relevant circs must be examined (expanded Thompson test).-So long as child’s age was known to officer at time of police questioning, or would have been objectively apparent to a reas officer, its inclusion in the custody analysis is consistent with the obj nature of that test (from Thompson)

Overall Test: The actual intention of officer to detain suspect is irrelevant to custody unless intention is communicated to suspect. Std is an obj test based on the suspect’s perceptions, & determinative question is how a Reas. Person in his position would have understood situation (in custody or not?); Look at: Location of interrogation; Duration; Persons present; Age;Similar analysis to whether there is a 4th Amndt seizure.Orozco v. Texas (1969); Custody not necessarily always at police station; Here, interrogation in Orozco’s bedroom at 4 AM. Determination took into consideration that police testified Orozco was NOT free to leave if he attempted. Beckwith v. U.S. (1976); Pressures assoc. w/ police-dominated station interrogation absent when IRS questioned at house.

Oregon v. Mathiason (1977) pg. 639; Just because at police station, doesn’t mean automatically custodial.-Parolee voluntarily reported to police station at request for mtg w/ officer. Had freedom to leave; told he wasn’t under arrest-In the absence of any “restraint on freedom of movement,” there could be no custody.

Page 640 Problems:1. Cop sees 2 groups of men eyeing each other. 3 men have hands in pockets, officer took it as “gang signs.” Cop

lawfully frisks 3 & finds hunting knife. Cop asks, “What are you doing w/ this?” Suspect says going to scare the other gang members? Is his response admissible? Yes, he hasn’t committed a crime yet so nothing has happened.

-What if gun instead hunting knife? Miranda violation if gun is illegal? How likely is reas. person to think they’re free to walk away?

2. R non-commissioned officer in Air Force suspected of downloading child porn. R meets cops at his home where assured “not about to be arrested” & “that cops weren’t worried about child porn but with the people who made the porn.” Officer admitted to downloading. No Miranda given. Never said “you will not be arrested at all.” Probably not custody; facts similar to Mathiason.

INTERROGATIONOriginally: “Questioning initiated by law enforcement officers.”- Miranda; Voluntary statements not covered.

Rhode Island v. Innis US S.Ct. 1980 pg. 641; Stewart Miranda INTERROGATION -Cabbie disappeared, body found 4 days later. Cop found guy who did it, arrested him, read Miranda rights. Didn’t talk. Sgt came & read rights again. Another came & read rights. Sgt said don’t coerce confession. Cops talked about shame if little girl found gun. D told them to take back to show them where gun was.

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No question asked, but intention to gather information.-D not “interrogated” w/in Miranda’s meaning.-Interrogation = questioning initiated by cops after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way OR knew or should have known would elicit response. EXPANSION HERE!

-Compare to “Christian Burial Speech”—Hoping to elicit incriminating response.TEST:, Look at particular susceptibilities of the suspect & whether officers knew of these susceptibilities at the time!

RULE: “Interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

.Pennslyvania v. Muniz (1990); pg. 649 Routine background questions (name, address, related matters) not considered w/in Miranda because Not investigatory; no psychological intimidation; not likely to illicit incriminating response.(This was a sobriety checkpoint where officer was asking for birthday, etc…)

Hiibel v. 6th Judicial District Ct of NV (2004); pg. 649-Providing one’s name to cops provides no reas danger of incrimination;

EXCEPTIONSHarris v. NY (1971); pg. 594 Impeachment of Miranda-violated statements-Statements taken in violation of Miranda could be used to impeach D’s testimony

NJ v. Portash (1979); pg. 595 Impeachment of Compelled statements-D’s compelled stmts (not stmts that just violated Miranda) may not be put to any testimonial use vs. him in a criminal trial-This is recognizing that you can have compelled statements that Miranda may not protect?

Michigan v. Tucker (1974); pg. 595; Miranda warnings are NOT Const. rights!-Cops interrogated T before Miranda so failure to provide warnings was a good-faith failure.-Evidence offered at trial wasn’t Tucker’s stmts but the stmts of a witness Tucker named to substantiate his alibi.-No Const rights had been violated. Miranda warnings are “not themselves rights protected by the Const but are instead measures to insure that the right against compulsory self-incrimination is protected.”-Because violation was of a prophylactic rule, Court balanced add’l deterrence that would result from not allowing the witness testify- Tucker’s stmts to cops had been suppressed- against value of having all relevant & trustworthy evidence presented to fact-finder.

Note: If stmt coerced/compelled (violation of DPC /5th Amndt) it can’t be used in Court AT ALL. (diff. than Miranda) -Due Process violation OR true violation of privilege against self-incrimination

Coerced confession violating privilege. Can’t use that AT ALL at trial. Violation of Miranda isn’t as grave as pristine violation of privilege vs. self-incrimination. See Quarles

NY v. Quarles (1984); pg. 596; Rehnquist Public Safety Exception!-Woman raped. Told cops. Cops found him, asked where gun was, guy told them. Cops read Miranda rights after found gun.-Was Officer justified in failing to make available to respondent Miranda warnings? -Was in police custody, but shouldn’t have excluded the stmt of where gun was prior to reading Miranda rights.-Public Safety Exception: Where officer’s questions are reasonably prompted by a concern for safety, he may engage in noncoercive questioning w/o complying w/ Miranda’s dictates.-Determined objectively NOT on the motivation of the police officer.-Here, the need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the 5th Amndt’s privilege against self-incrimination.

RULE: Public safety exception to Miranda warnings allows suspect’s answers to be admitted into evidence- pre-warning.

Reasoning:

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-So long as gun was concealed somewhere in supermarket, w/ its actual whereabouts unknown, it posed more than 1 danger to public safety: an accomplice might make use of it, a customer or employee might later upon it, etc.-Here, had Miranda warnings deterred Quarles from responding to the officer about where his gun was, the cost would’ve been something more than merely the failure to obtain evidence useful in convicting Quarles.O’Connor CONCUR & DISSENT:-Doesn’t agree there should be a public safety exception—just don’t bring stmt into trial & then there’d be no violation.

Miranda violation does not bear fruit.Notes: Ct in Quarles: “We conclude that need for answers to questions in a situation posing a threat [like Times Square car bombing] to public safety outweighs need for prophylactic rule protecting the 5th Amndt’s privilege vs. self-incrimination.

Statement didn’t violate Miranda; statement may have violated privilege to self-incrimination, in which case statement itself couldn’t be admitted

Oregon v. Elstad (1985); pg. 605; O’Connor Miranda bears no fruit-18 yr old accused of stealing from neighbor’s house. Cops go to house to talk to him in living room w/o parents there. Went to station, given Miranda rights, said same stmts. Stmts used at trial.-ISSUE: Must figure out if there were 2 different interrogations. 1 is Bad for Police; 2 Separate is Good-If one: after confessed, Miranda rights, kept goingcounts as 1 interrogation & all stmts are Miranda violations-can’t cure Miranda violation by giving Miranda rights again-But if 2 separate interrogations, like here1st stmt Miranda violation, other stmt non-Miranda violation. Miranda has no fruit so 2nd stmt isn’t tainted. Confession admissible.

Thus, question of how many interrogations were there is key question for future cases.Error in prophylactic rule (Miranda) not necessarily a 5th Amndt violation.NOTE: If there was compelled self-incrimination in 1st stmt, that WOULD be fruit for all other stmts.Here, two separate interrogations; statements are admissible!

Missouri v. Seibert (2004); pg. 620; Souter Concerned w/ intent & good faith-Son had cerebral palsy & died; mom afraid charge of neglect because bed sores. Devised plan to burn him & mobile home making it appear that a boy living w/ her did it. Boy died in fire. Questioned w/o Miranda warnings. -D’s ultimate stmt was largely a repeat of info obtained prior to the warning.-Is a repeated statement inadmissible? Statement repeated after a warning in such circumstances is inadmissible.

RULE: In order to use a post-Mirandized confession, after eliciting an un-Mirandized confession, police must give D ample opp. to consider the effect of the Miranda warnings. MUST BE AN EFFECTIVE MIRANDA!

-When Miranda warnings are inserted in midst of coordinated & continuing interrogation, likely to mislead & deprive D of knowledge essential to ability to understand nature of rights & the consequences of abandoning them.-Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing risk that a coerced confession would be admitted, & because facts here don’t reas. support a conclusion that warnings given could’ve served their purpose, Seibert’s postwarning statements are inadmissible.Note: Kennedy’s concurrence: 5 Factors are too broad; “Only suppressed when party of a deliberate 2-step strategy that is designed to undercut the effectiveness of Miranda warnings.”5 Factors Critical to Seibert Plurality Decision: What is an Effective Miranda Warning?

1. Completeness & detail of the questions & answers in the first round of interrogation2. The overlapping content of the 2 stmts3. Timing & setting of the 1st & 2nd rounds4. Continuity of police personnel5. Degree to which the interrogator’s questions treated the second round as continuous with the first

Court Applying Seibert should follow three steps:1. Did cops deliberately employ the 2-round interrogations strategy for purpose of sidestepping Miranda.

a. If not, inquiry ends & no Miranda violation occurred2. If yes, determine whether given situation is more like that in Elstad or Seibert, (apply 5 factors of Seibert)3. If more like Seibert than Elstad, determine whether the interrogator took any curative measures (Kennedy)

a. Curative Measures: Break in time; explanation that 1st stmt was inadmissible.b. Assuming no curative measures, confession is inadmissible.

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Dickerson v. US (2000) pg. 613; CJ Rehnquist-Dickerson indicted for multiple counts, moved to suppress stmt made at FBI office, on grounds that he hadn’t received his Miranda warnings before being interrogated. Congress had enacted §3501 to overrule Miranda to have Voluntariness Std.-Miranda guidelines established that admissibility in evidence of any stmt given during custodial interrogation of a suspect depends on whether cops provided suspect w/ 4 warnings.

-Congress can’t legislatively supersede Court decisions interpreting & applying the Constitution.

RULE: Congress cannot overrule the Miranda decision because it interpreted the Const; not just court-made law.Scalia & Thomas DISSENT:-Court acts in plain violation of Constitution when it denies effect to this act of Congress.-In imposing its Court-made code upon States, the original opinion at least asserted that it was demanded by the Const.

-US v. Patane (2004); pg. 631 Miranda violation bears no fruit (physical or otherwise) but must be non-coercive stmt-Officers arrested Patane for violating a restraining order & one officer began to recite Miranda warnings.-D stopped him after “right to remain silent” & said he knew his rights. Officers didn’t attempt to finish warnings. -Court (5 members) said confession (w/ Miranda violation) was admissible.-Self-incrimination clause not implicated by admission into evidence of the physical fruit (gun) of a voluntary stmt.-Cost-benefit balance produced decision to admit physical evidence discovered through unwarned statements. -As long as statement is voluntary (not-coercive), a violation of Miranda does not require suppression of physical fruit

FRUIT CASES: Miranda violation bears NO Poisonous Fruit Patane Elstad Siebert

D wasn’t Mirandized & gave stmt; also told where gun was. Stmt was un-Mirandized w/ no waiver; therefore, stmt violated Miranda.

Std fruits analysis would say- found gun because told where it was- no inevitable discovery, no indp source & close in time.

If fruit of poisonous tree doctrine applied, keep gun out.

RULE: Court says that physical evidence (when uncoerced- or, volunteered) is not considered ‘fruit’ even though an un-Mirandized statement could be considered so.

17-18 yr old kid interrogated in house, incriminating stmts, interrogated at police station after Miranda warnings & makes further incriminating stmts.

Housewarningscop station

Ct says: exclusionary rule applies to statements taken in violation of Miranda- can’t use those statements.

These statements, however, are NOT fruit of the poisonous tree.

As matter of policy- given Miranda warnings, sounds like any taint from fruit dissipated. Not what court says- says Miranda warning should not bear fruit. Keep out original statement or series of statements taken in violation of Miranda—but don’t keep out any later statements.

COMPLICATION- plurality. Other justices interested in intent & good faith.

After Elstad, cops would violate Miranda- fail to give warnings & interrogate someone until confession. Then provide Miranda warnings & start over again until gave same confession.

Ds wouldn’t get benefit of Miranda warnings in 1st place & wouldn’t understand 1st stmts couldn’t be used against them. Ds made same stmts over again & would be more likely to get quick confession.

Distinguishes Elstad & says: that’s just about whether fruit of tree doctrine applies. Ct decides it doesn’t.

Focus on the word effectively. Must give effective Miranda warnings.

Here, cops didn’t because plan was not to- circs around it would think was 1 interrogation NOT 2 separate interrogations.

1. Not about subj. intent from officers- Ct is uncomf. about cops cheating Miranda rules.

2. Not about fruits argument

Is it close enough to different interrogation?

WAIVER & INVOCATION

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Totality of Circumstances approach (Miranda hope for bright-line not achieved)NC v. Butler (1979); pg. 650 Stewart

-D arrested & read Miranda rights- D had 11th grade education & read “Bureau’s Advice of Rights” form. When asked if understood, D replied yes. D refused to sign waiver- told D that didn’t have to sign but was just going to ask questions. Then made exculpatory statements. Waiver found implicitly- here, from understanding & course of his conduct.

RULE: Waiver doesn’t have to be explicit- may be implicit if done intelligently, knowingly, & voluntarily.Butler Test: (1) Intelligent/Knowing of rights; & (2) Voluntary waiver of rights

Silence alone is NOT ENOUGH for waiver—but can infer from conduct.Saying something is also NOT ENOUGH for waiver.

Preponderance of the evidence rule State’s burden of proof.

Intelligent & Knowing- how do cops figure this out: Cops ask if you understand Cops ask you to read rights out loud. Cops ask if needs interpreter What if Kreag says, “No, I don’t understand.”

-Cops don’t believe—totality of the circumstances question—cops can disregard stmts if knew he taught Crim Pro.Test for Intelligent & Knowing: (1) Suspect understood that he had the right not to talk to the police or to talk only w/ counsel present; & (2) that he appreciated the consequences of forgoing these rights & speaking to the police.From: Tague v. Louisiana (1980); No presumption that rights are understood; (However, limited by Berghuis See Below).

Moran v. Burbine (1986); pg. 654; Deals with (2) Voluntary-B arrested for murder. B’s sister had lawyer call cops & tell them she’d be his lawyer if cops intended to question him. Cops said wouldn’t interrogate him that night. Hour later, asked him questions. B admitted to murder. Mirandized each time was questioned. He signed 3 waivers of attorney [didn’t know attorney was trying to get a hold of him].-Court held waiver was valid.-Events occurring outside of the presence of the suspect & entirely unknown to him surely can have no bearing on the capacity to comprehend & knowingly relinquish a constitutional right.-Here, “waiver must be product of a free & deliberate choice rather than intimidation, coercion, or deception”Note: Court warns that a more egregious situation could result in a due process violation.

Note: Studies should that roughly 80% of suspects waive their Miranda rights.Lego v. Twomey (1962); pg. 653-Prior to Butler, Ct held that std for Miranda waiver was preponderance of the evidence.

Colorado v. Spring (1987); pg. 653 Waiver is NOT crime specific!-S arrested for interstate possession of stolen firearms.-Waived his Miranda rights, & cops questioned him not about stolen firearms but about a murder (S hadn’t been charged w/)-Ct held a waiver of Miranda is to interrogation in general & not to interrogation about a particular crime.

Thus, Miranda is NOT crime specific.

Question #4 pg. 655- J is 15 years old, suspect in murder. Mother is w/ him at police station. Police give Miranda and ask if he wishes to answer questions. J answers ‘no.’ Mother tells him to talk. J nods his head. Asks if need lawyer present and J says no. Valid waiver?

No, parents can’t waive right of their children- he’s a minor, BUT, has his own indiv right. What about instead of mom telling kid to talk, his mom starts beating him until he talks.

o Becomes involuntary despite that there was no state action.o Moms can’t waive for kids because they don’t know what the consequences are for what the kid did—

because mom may not know what kid did. Listening to your parents & doing what they say, is likely a voluntary waiver.

Overall: WHEN A SUSPECT WAIVES RIGHT EXPLICITLY: For Statement to be admissible, Police must prove that (1) waiver is valid (knowing/intelligent & voluntary) & (2) that confession was not coerced (due process)

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WHEN SUSPECT IMPLICITLY WAIVES RIGHT (NO FORM OR STMT): Must show (1) Suspect’s conduct constitutes an implied waiver; (2) Waiver was knowing, intelligent, & voluntaryWaiver Invocation Initiation

1. Intelligent, Knowing2. Voluntary

Still an issue in confessions—discussing whether waiver was voluntary or whether confession itself was voluntary.

No bright-line rule saying, until age 18, your parents can’t invoke for you (unless statutory)

Can invoke in beg by waiving rights & asking for lawyer.

Important when you waive rights initially, but then go back & want rights. Must be UNAMBIGUOUS

What counts? “I need food.” “When is my lawyer coming?” no initiating discussion w/ police.

Does count: “I’d like to make a deal now/talk now.”

Questionable: “What’s going to happen now?” –Bradshaw says this is fine.

What if in Edwards, he said, “I don’t want to talk anymore.”

Invocation of right to silence so interrogation must then stop. Must be “scrupulously honored.”

Michigan v. Mosely (1975); pg. 662-D questioned by detective. Interrogation ended when D said he didn’t want to answer any questions about robberies. Few hrs later, detective from homicide bureau questioned D about fatal shooting during a diff robberty/holdup. -Read Miranda rights & signed form, which Detective read & explained warnings to him & had him sign form.-15 min interrogation, D made stmt implicating himself to homicide. D didn’t ask for lawyer at any time.-Admissibility of statements obtained after person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.” Here, No Miranda violation.

o Right to remain silent IS crime specific.-Under these facts, previous request not to talk to diff. detective from diff. bureau about diff. crime didn’t extend to 2 nd interrogation also preceded by warnings.More protections if you ask for a lawyer rather than invoking right to remain silent.

Invoking silence doesn’t disallow a diff cop to come along & discuss another crime Invoking right to attorney DOES disallow different cop from coming along to discuss other crime

In order for prosecutor to introduce stmts from suspect who had initially invoked right to remain silent, must show that (1) Right to silence, once invoked, was scrupulously honored; & (2) Knowing, intelligent & voluntary waiver subsequently occurred.

Edwards v. AZ (1981); pg. 658; White INVOCATION of Counsel Right-D arrested, at police station, informed of Miranda rights. Said understood rights & willing to submit to questioning. Denied involvement & sought to “make a deal.”-D said wanted an attny before making a deal, questioning ended & D taken to jail.-D said didn’t want to talk to anybody & guard said “he had to talk” & took to meet detectives. Informed of Miranda rights. D said would make stmt if not tape-recorded. Then implicated himself in the crime.-D insisted on having counsel present & since cops didn’t provide counsel during interrogation, he did not validly waive the right.-When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right can’t be established by showing only that he responded to further police-initiated custodial interrogation even if he’s been advised of his rights.-Accused, like Edwards, having expressed desire to deal w/ the police only through counsel, isn’t subject to further interrogation by the authorities until counsel has been made available to him, unless accused himself initiates further communication, exchanges, or conversations with the police.

RULE: If D invokes right to counsel (includes “I want an attny before making deal”), all interrogation must cease until lawyer present.

Once invoke right to counsel, D is allowed to initiate conduct—or can initiate more questioning.Designed to prevent police from badgering D into waiving his previously asserted Miranda rights.

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If Prosecution wants to introduce a statement from a suspect who initially invoked right to counsel, must show: (1) Counsel was made available to him; OR (2) Suspect himself initiated the further communication; & (3) A Knowing, Intelligent, & Voluntary Waiver subsequently occurred.

Oregon v. Bradshaw (1983); pg. 663 What is initiation by suspect who invoked right? “What’s going to happen to me?”-Initiation occurs only when inquiry from suspect can “be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.”-Asking for drink of water or to use a phone wouldn’t constitute initiation => “routine incidents of the custodial relationship.”-This stmt was ok as an initiation. Next step: Was it voluntary/intelligent/knowing?!

Minnick v. Mississippi (1990); pg. 663 Invoked Right To Counsel-Interrogation but then Minnick said, “Come back Monday when I have my attorney.”-Agents ceased interrogation & D talked to lawyer twice before Monday. Cops re-advised him of his rights & got incriminating stmts.-Held: D’s statements were inadmissible even though had consulted with counsel. He needed counsel present at time of questioning .

Maryland v. Shatzer (2010); pg. 665; How long to wait after Invocation?-2.5 yrs elapsed between Edwards invocation & 2nd waiver request- Ct unanimously agreed that his waiver was valid.-2 week cleansing period because that “provides plenty of time for suspect to get reacclimated to his non-custodial normal life, to consult with friends, family, counsel, & to shake off any residual effects of prior custody.”

Davis v. U.S. (1994); pg. 665 MUST BE UNAMBIGUOUS request for counsel for invocation AFTER WAIVER!-Suspect initially waived rights to remain silent & to a lawyer both orally & in writing.-Suspect must unambiguously request counsel. “Maybe I should talk to a lawyer” was not a request for counsel.

“A statement either is such an assertion of the right to counsel or it’s not.” Must state desire to have counsel present sufficiently clearly so reas. cop in circs would understand stmt to be

request for attny. No obligation to clarify ambiguous requests (although this would be a good police practice).

Berghuis v. Thompkins (2010); pg. 667 Kennedy Silence (Implicit) Invocation must be UNAMBIGUOUS!-Shooting—Suspect fled, found 1 yr later & arrested. Went to interrogate in small room in school desk chair.-Read Miranda rights; D read 5th warning out loud to ensure he could read & understand English. D declined to sign form.-“Do you pray to God that he’ll forgive you for shooting that boy down?” “Yes.”-Is being nonresponsive, but not expressly waiving right to remain silent, invoking the right to remain silent?-D waived his right to remain silent.

(1) He understood his rights & knew what he gave up when he spoke. (2) D’s answer to the God questions is a “course of conduct indicating waiver” of the right to remain silent. cops

aren’t required to re-warn suspects from time to time (3) No evidence D’s statement was coerced

Here: 3 hours of silence is not an invocation.RULE: A suspect who has received & understood the Miranda warnings, & hasn’t invoked his Miranda rights, waives the

right to remain silent by making an un-coerced statement to the police.

Davis v. US (1994); pg. 665- If an accused makes a stmt concerning right to counsel “that is ambiguous or equivocal” or makes no stmt, cops aren’t req’d to end interrogation or ask questions to clarify whether the accused wants to invoke his Miranda rights.

Waiver has 2 distinct dimensions: (1) Waiver must be voluntary: product of a free & deliberate choice (vs. intimidation, coercion, or deception); AND (2) Made w/ full awareness of both nature of right being abandoned & consequences of the decision to abandon it.

-Subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.

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6th Amndt: Guarantees an accused the “assistance of counsel” for his defenseMassiah v. US (1964); pg. 692; Stewart

-D’s incriminating stmts to co-D were admitted into evidence at trial. Co-D cooperating w/ police. Occurred AFTER D was indicted, retained counsel, pled not guilty, and was released on bail.-Ct: Once adversary judicial proceedings have commenced vs. individual, govt. efforts to deliberately elicit stmts from indiv in absence of his attny (openly or surreptitiously) violate the 6th Amndt.

Unlike Due Process Standard: No need to find coercion! Unlike Miranda: Don’t need custody NOR interrogation!Massiah Doctrine Requirements: 1) Govt. deliberately elicited incriminating stmts from accused in the absence of counsel (or a waiver of counsel); AND 2) Occurred after the initiation of judicial proceedings (the point at which right to counsel is triggered)-more than arrest.3) AND Without Counsel1) Whether officer’s attempts to gain incriminating evidence were deliberate or intentional (Note: Miranda requirements for interrogation are broader because those say ‘reasonably foreseeable’); Spano v. NY pg. 549 Deliberate Elicitation-D consulted w/ attny who said to be quiet. Later, D gave into police friend to give confession; Confession was deliberately elicited by cops after D was indicted; therefore at a time where he was entitled to a lawyer’s help.

Jailhouse Snitch Cases:US v. Henry (1980); pg. 696 Passive Listener vs. Stimulating Conversations?-Paid informant posed as cellmate of H. Cops told informant NOT to question H about crime, he was told to report incriminating stmts back to them. Ct said Govt. set up a situation likely to induce H into making incriminating stmts.

Kuhlmann v. Wilson (1986); pg. 697 Did not stimulate conversation; No deliberate elicitation-Paid Informant must do more than merely listen. Here, no violation of 6th Amndt.-“6th Amndt isn’t violated whenever State obtains incriminating stmts from the accused after right to counsel has attached.” -When cops plant informer w/ a jailed suspect & informer doesn’t ask questions, suspect’s stmts to informer are admissible unless informer took coercive steps [actual action] other than listening to elicit incriminating info that was designed deliberately to elicit incriminating statements.

2) After initiation of judicial proceedings;Brewer v. Williams (1977); pg. 699- Warrant issued for Williams; Spoke with Attny- said to be silent; Williams transferred to different prison- cops expressly agreed w/ lawyer that they wouldn’t question him en route. Cop gave ‘Christian Burial Speech’ knowing that Williams was deeply religious.-Violation of 6th Amndt right to counsel after initiation of judicial proceedings at his arraignment!

Massiah is Crime Specific!McNeil v. Wisconsin (1991); pg. 734- Questioned by police on unrelated murder after a hearing on charges of armed robbery. M gave Miranda waiver & implicated himself in murder. Court said this was fine; Crime-Specific!

Kansas v. Ventris (2009) pg. 741; Scalia-Statement can be introduced in violation of Massiah to IMPEACH D. -V took stand at his murder trial and blamed his partner for the shooting. Prosecution permitted to contradict him w/ testimony of a jail plant to whom V had admitted the crime concededly a violation of Massiah.Policy: Now, every single police dept should have an informant in cell to prevent defense from presenting D to testify & prevent alibis. Nothing to lose here because chances that evidence can enter trial to impeach!

Question about Warrants Sample Intro: The 4th Amndt protects the right of the indiv against unreas searches & seizures & provides that no warrants shall issue except upon showing of PC. The 4th Amndt is implicated when the conduct in question involves a governmental actor, such as [Fill in Govt Actor] here (Burdeau v. McDowell). We must also examine if [Name] is a member of the class the 4th Amndt is designed to protect. The 4th Amndt protects a class of persons who are part of a national community or who have otherwise developed sufficient connection

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w/US to be considered part of community (Will fit this description). INCORPORATION ANALYSIS. A search occurs where a person has a subjective expectation of privacy & is one that society accepts as reasonably objective. (Katz) May also include Jones test[Trespass Test: Search if (1) Govt., (2) in an attempt to get information, (3) trepasses on (4) “persons, houses, papers, or effects” (item w/ possessory interest)- need not be any legitimate expectation of privacy!]

[Lee]’s public defender will argue that clearly a search has occurred based on the facts.

A warrant is a judicial authorization for police action, either to search a particular place (search warrant) or arrest a particular individual (arrest warrant). A warrant must meet the following requirements:1) Issued by a neutral/detached magistrate;2) Adequate showing of probable cause based on oath or affirmation3) Must describe with particularity a place to be searched and the items or persons to be seized.

Element #2, probable cause, is defined as that quantity of facts and circumstances within the police officers’ knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime. An adequate showing of probable cause requires specific and concrete facts, not merely conclusory speculations. It can be based on reasonably truthful hearsay as well as an officer’s observations.Standing Initially, standing was tied to property law concepts and standing was conferred on anyone legitimately on the premises where a search occurred. More recently, the question of standing has come under substantive Fourth Amendment doctrine. The important question becomes whether the particular Defendant’s expectation of privacy was intruded upon. The doctrine of standing implies that only a person who is injured or aggrieved has a requisite right to challenge and exclude evidence.Ex. for driver: Here, [David], the driver & owner of the car, would have standing to challenge the search because his possessory interest creates a reasonable expectation of privacy in all areas of the car. He could thus object to [the entry into the car and the subsequent search and seizure of the gun and the packet of cocaine]. As a mere front-seat passenger, Steven will attempt to demonstrate a legitimate privacy expectation in the area underneath his seat where the gun was located and the console where the cocaine was located. Cases have been decided both ways as to whether such an interest will enable him to challenge the search. As for Michael and Robert in the rear seats, it is unlikely, as rear-seat passengers, they will be able to establish the privacy interest in the areas searched and therefore be able to challenge the items seized.

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