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Criminal Procedure I- Prof Henderson

Crim Justice Process Crim Pro I- Investigation- What can police do under Constitution? Arrest - Booking - Photo, fingerprint, biographical info Interrogation/Line Up- questioning, if have an eyewitness line up Crim Pro II- Complaint- initial charging document makes a suspect a defendant

must convince the judge that there is probable cause the suspect committed the crime ex parte hearing D doesn’t have to be there

Initial Appearance - D appears before the magistrate D made of aware of charges, rights, attorn bail determination

Prelim Hearing/ Indictment - might have both might have one or another Grand Jury whether or not someone should be charged Indictment is a formal charging document which replaces the complaint Grand jury used to be an investigatory Presentment- if the charge comes from a citizen Indictment is when pros brings evid to grand jury and asks is this enough Grand Jury is not fundamental right – fed gov restricted by 5th amend but does not apply to states through

14th Prelim Hearing-Adversarial proceeding

Arraignment - taking a plea Discovery - limited in crim

Motions to suppress Jury Selection - trial jury/petty jury Trial Sentencing Appeal

Over 90% plea bargained in guilty pleas Fourth Amendment

NJ v. T.L.O. – USSC 1985- White Found smoking in the girls bathroom by teacher- who brings them to the Assistant Principal Choplick- one girl

says yea and TLO says I don’t smoke at all- opens purse and finds evidence of pack and drugs- calls mom and police and they bring her to HQ’s and she confesses to selling at school- state brings delinquency proceedings against D- she files motion to suppress the evid from purse as a violation of her 4th Amend rights

4th Amend applies to all gov actors not just police- state gov officials through 14th Should the Exclusionary rule apply to school officials under the 4th? NJ argues that Choplick is acting in loco parentis- his authority is that of a parent Ct says no we have already said school officials subject to commands of other amend and parents have to send

kids to school its compulsory Must be a state actor for 4th Amend to apply and we have it here NJ 1st claim is this is not a search USSC search - does the action invade a reasonable/legitimate expectation of privacy

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Was there a search or seizure? Ct says yes she had a reasonable expectation of privacy in her purse even at school

General warrant and writ of assistance abolished by the 4th Amend Was it an unreasonable search?- unreasonable if don’t have a warrant or probable cause

Can’t require warrant or probable cause it would be impracticable to require this to be conducive to learning environment discipline

Need reasonableness – justified at inception(reasonable grounds/suspicion of her violating a school rule) and not too intrusive – balance for a gov actor outside law enforcement

Search was constitutional he had reasonable grounds and it was not too intrusive So when have a 4th Amend case 1. Is there a gov actor? 2. Was there a search or seizure(does the action invade a

reasonable/legitimate expectation of privacy)? 3. Was it unreasonable? 8-26 Overview of 4th Amend

NJ v TLO 1. Is it a gov actor? Yes public School 2. Was there a search? Yes Does it invade a reas expectation of privacy? Yes 3. Was the search unreasonable? No balance gov need to search vs intrusion of priv A. reas grounds to believe the school rule was violated B not to invasive or intrusive

Redding – another case similar to TLO A says got from B-> Redding -13yo Female school nurse search Redding – strip search for prescription Tylenol 1. Yes public school 2. Yes 3. Was B telling truth A. maybe B. too intrusive 9th cir en banc – unconstitutional- grossly intrusive for pills= 2 Advil’s

TLO dissent Brennan, Marshall and Stevens [3 amigos dissent in Crim Pro cases] If searching must have been probable cause not just reasonableness From text of the 4th amend

fN7 reasonableness v prob cause protect students v invest crime lower standards v higher standards school officials v police

could handle in state constitutional state legis school board- so constitutional but can be stopped Seeking legitimacy in the 14th Amend -1868

Diff means of interpreting Const. Textualist- words in document ex: Scalia

Purpose – legis should say what they mean- if you don’t like how it’s written amend it Propocilist or Intentionalist- What was intent of the writer- put words in context ex: Breyer

Barron v Baltimore - Sc unanimous that non of BOR binds the states Akhil Reed Amar why ^ BOR only restrict fed gov

1. Terrified off fed gov similar to GB – many ultimately voted for Const only because fed like Madision promised to consider BOR after ratification

2. Amend failed “No state shall violate the equal rights of cons…pg27

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Would have never proposed if others restricted states- amend failed Then Civil War- 14th Amend- pg 27

Cl1 priv and immune- does not incorporate BOR to states because of Slaughter House Cl3 EP- apples state and fed Cl2 DP- incorporation

Duncan v Louisiana - 1968 Whether right to trial by jury guaranteed by 6th Amend is incorporated through the 14th? Holding – Yes

If face more than 6 mos in prison have right to jury Pg 31 tests Black concurrence Douglas 1. Wants “total incorporation”- BOR to states

Hates legis from bench just wants it clear But downside is there would be no substantive DP- right to privacy, marry

2. There is “Total Incorporation Plus” BOR + Sub DP

3. White (maj) “Selective Incorporation” Fundamental rights to the states

4. “Selective Incorporation Plus” SC follows Fundamental rights + Sub DP

5. Harlan dissent Stewart- same select Incor Just asked diff question Fund right essential to fairness

Right to Grand Jury has been found not fundamental But most others have all been incorporated

Norms of the Crim Process- Legitimacy System CJ is or is no legitimate based on

1. Accuracy Ask is it an accurate method for finding out guilt or innocence

2. Fairness Equal for people rich or poor

3. Limited gov Stay out of daily lives

4. Efficiency Quick not time consuming

-----8-28 Reach of the 4th Amend Who are “the people”?

1. American citizens in US ( foreign born) Full 4th amend protection

2. Foreign citizens lawfully in US Depends

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Extreme- Verdugo (arrested in Mex and brought to US for trial) Have to be part of social compact Rehnquist def. pg 57 Baumediene v Bush- Foreign held at Guant Bay do have rights of habeus corpus

3. Foreign citizens unlawfully in US No law Prob hasn’t come up because given rights so nothing to appeal

4. Foreign citizens outside US No 4th Amen protection Problem- country may not have warrants So how do you get warrant for search there

5. American citizens outside US Non-US law enforcement- NO 4th Amend protection US law enforcement abroad – NO law

Reid v Covert- 1975 some 5th and 6th apply Verdugo- looked down Reid Munaf- US citizens in Iraq do have habeus rights

Private Search Doctrine – 4th Amend only limits gov action- Does not restrict provate searches and seizures If actor is agent of gov 4th does apply

Exclusionary Rule Adams v NY -1904 pg 59

No exclusionary rule- no matter how it was retrieved it will be used in ct Weeks v US – 1914

Facts : arrested for illegal gambling State Police get in home from neighbor get evid- Then US Marshall get in and get evid

Holding : exclusionary rule applies to Fed not State officials Reas : if not excluded than 4th Amend be of no value

-judicial integrity- don’t want to base judgments on evid obtained against 4th Can’t get property back that is illegal to possess Wolf v Colorado - 1949

4th to the states? Exclusionary rule? Whether 4th searches and seizure is fundamental so through 14th applies to states 31 states didn’t have exclusionary 16 did have it Hold : So must be another way to make 4th real so not fundamental so won’t force exclusionary rule on states

Rochin v California - 1952 pg 63 n5 State officials pumped stomach to get evid Shocked the conscious so violated the 4th Amend DP Clause – evid inadmissible Couldn’t exclude no exclusionary rule so went about it this way

Mapp v Ohio - 1961- Landmark Exclusionary Rule – Warren Hold: 4th Amend Exclusionary rule applies to state if violate 4th evid won’t be admissibly Granted cert on whether obscenity protected not to reconsider exclusionary rule Didn’t even ask for reargument 5 justices signed on w/ Clark

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Pg 67 “Most important…unlawful seizure” Pg 65” That command…implied” Exclusionary rule constitutionally required- most important priv of 4th

To deter police misconduct To guarantee judicial integrity

“To hold otherwise is to grant the right but in reality to withhold its priv and enjoyment” pg 67 HANDOUT Robinson v Fetterman- 2005

Taping officers conducting truck inspections Convicted of harassment- 2 yrs later now again- gets attorn and overrules 2nd conviction due to exclusionary rule

policy getting rid of police misconduct Wouldn’t have helped D here innocent- had to sue officers

What is a “search”? Olmstead - 1928

Import and export liquor during prohibition- police wanted tot infiltrate Tap phones in basement of office space and on poles for houses of major players including D Ct said human voice isn’t included in tangible things of 4th They didn’t trespass so fine

Goldman - 1942 Police rented room next to office- no 4th amend when capturing human voice w/ out trespass

Silverman - 1960 Spikemike through wall Trespass so 4th amend indicated Trespass doctrine- so 4th amend indicated when invade person, papers, houses, or effects

Katz v US - 1967 – Landmark Shift History Facts : microphone on top of public phone booth- recordings gambling info Under Trespass Doctrine- in lawful place pucked up something intangible Rule : In Harlan’s concurrence [not maj!]

1. Person have exhibited an actual (subjective) expectation of privacy; and 2. The expectation be one that society is prepared to recognize as “reasonable” 1. Never really goes anywhere 2. Goes to the crux of the matter

Pg 77 “For the 4th Amend protects people, not places…consti protected.” Is there a mode or manner argument for the 4th Amend? Recording US lip reader in glass phone booth in

public How much do you have to do to have a legit expectation of privacy? Black dissent – likes Trespass doctrine for wiretapping Options for reading 4th for wiretapping

Textualist - wiretapping not in Constitution How can you describe convo to happen in future If ant it there pass law or amend

Proposivist - what was purpose of 4th? Where they trying to cover wiretapping in 4th? Translationist - what would the Framers have done if they knew our technology today?

Papers- to cover mail communication- would wiretapping be that today? Hoffa - 1966

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Gov turned his friend who proved that Hoffa tried to bribe jury 4th affords no protection against gov moles

US v White -1971 Undercover agent listening to D and gov informant 3rd party doctrine – when info voluntarily conveyed to 3rd party no 4th amend protection This is where gov places person in instead of person coming to police later ***assume the risk that person your telling could turn around and tell police In Katz not person talking to who betrayed you- In White can see the person who your assuming the risk

against Harlan dissent –Normative expectation of priv

Shouldn’t assume the risk that anyone could be a gov agent mole ----9-4

Beeper cases- Police can follow car when moving in public Pg 104 n4 Knotts US v Miller -

Is there any protection against banking records? Ct said no -3rd party doctrin is hand over to bank take risk will turn over to police

Smith v Maryland - 1979 SC Police used pen register (device records numbers you dial) to track D outgoing calls Ct says no 4th Amend protection – 3rd party doctrine – gave info to phone company took risk of them giving

to police Even if tell one person it is not considered private in eyes of 4th Amend

Canine Sniffs-pg 103 Is it a search? They are sui generis(one of a kind) only looking for drugs Info is limited Everything else is hidden from public view so not a search

Open Fields Hester v US – 1924

Search of open fields has no 4th Amend protection Oliver - 1984

This doctrine remains good law after Katz Why open fields doesn’t have 4th protection?

Textualist - not a house, papers, persons, effects Madison originally proposed, “persons, houses, papers, property” and was revised to the less inclusive word

effects (movable personal prop) Katz was textualist voice falls within persons

Reasonable Expectation of Privacy Open fields do not provide the setting for those intimate activities that the Amend is intended to shelter from gov

interference or surveillance Empherical claim that people don’t do this in open fields

Is it true? Normative claim is it consistent w/ social norms in society?

It is not generally true that fences or “No Trespassing” signs effectively bar the public

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Another Empherical claim- how does the ct know this? In this case no manner, mode, restriction in Oliver and Thornton concede the public and police lawfully may

survey lands from air “What a person knowingly exposes to the public, even in his own home or office, is not subject of the 4th Amend

protections”-Katz What about surveillance in public?

Cameras in public- no 4th amend protections – your in public no reasonable expectation of privacy What about cameras/surv in open fields?

Hasn’t come up yet-but if done nothing wrong can gov constantly film you What is an open field?

Defined by what is not Home: building Curtilage: area around home Open Field: everything else

US v Dunn- 1987 Curtilage test- Whether the area in question is so intimately tied to the home itself that it should be placed

under home’s “umbrella” of 4th Amend. Factors to be considered in answering test

1. Proximity of area claimed to be cartilage to home 2. Whether the area is included within an enclosure surrounding the home 3. The nature of the uses to which the area is put 4. The steps taken by the resident to protect the area from observation by people passing by

Apply: 1. 60 yds home to barn – ct said substantial distance 2. No 3. Meth Lab- not intimate activity of a home 4. Took many steps - 5 fences, locks

Ct did little to protect they were cattle fences not people fences Prob most persuasive to ct is that making drugs is not intimately tied to the home- the ultimate test Needed warrant to enter barn- if looked in and saw something then have ok-“plain view doctrine” Curtilage 3rd party doctrine- since anyone can walk up to front door and knock police can

Back door? Depends on community norms Climb under shrubs look into windows- no police can’t public wouldn’t do it If norm public welcome to do it police can under 3rd party doctrine

What about Aerial Surveillance? Open fields- no protection under 4th Curtilage

Cal v Ciraolo -1986 After tip of marijuana growing rents plane and flow over home @ 1000ft and photographed with 35mm

camera Flew because couldn’t see from ground due to 6ft and 10ft fence Ct says 3rd party this was fine any public person could have done this

Florida v Riley -1989

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400 ft above yard with helicopter Ct said no protection under 4th Amend due to 3rd party doctrine Anyone in a helicopter could see this so police ok- D had no reasonable expectation of privacy

Cal v Greenwood -1988 No 4th Amend protections of garbage at street 3rd party- leaving it for trash collector

Kyllo v US - 2001 Got utility bills- no 4th Amend protection Thermal image to capture heat Believed he was growing pot in home- need heat lamps to do Gov argues-Katz – 3rd party – heat coming off home is seen to public Ct says no 3rd party – thermal imager not in general public use so have protection against police using it “Obtaining by sense-enhancing technology any information regarding the interior of the home that could

not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a search- at least where, as here, the technology in question is not in general public use.” Pg 119

The home is core to 4th Amend it is consistent to 3rd party- if everyone had one police prob could do it -------------------------9-9 What is a seizure?

What is property? Feliz Cohen- “To the world keep off unless you have my permission which I can grant or withhold.” When have right to exclude others US v Karo - 1984

Gov put beeper in drum D bought and followed him with beeper Seizure- some meaningful interference with an individual possessory interest in that property Not a Seizure Dissent- believes gov infringed on D right to exclude others from his property now

Chapter 4: The Substance of 4th Amend pg 132 Probable Cause

1. Veracity-truth 2. Basis of Knowledge- credibility

Aguilar v Texas - 1964 Affidavit of officers swore “received reliable information from a credible person and do believe” that

narcotics were being illegally stored on the described premises Veracity- swore, officers Basis of Knowledge- informant Inadequate

1. Failed to set forth underlying circumstances 2. Didn’t support that informant was credible

Spinelli v US -1969 Have informant says D gambler

Uses 2 phone #’s FBI report of independent investigation

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Sees D go to apt w/ 2 #’s – corroboration always go to veracity of informant Tip + Corroboration= here not enough for prob cause

Draper v US -1959 Known informant but not how knew Predictive info- describes with so much detail- clothes, person

Self-verifying tip- must have Personal Knowledge Ct believes police had probable cause to stop D at train station and open briefcase to see if there was

heroin there Kinda weak though since habitual activity

HYPOS- Handout Aguilar-Spinelli- 2 prong test 1. Veracity- unknown tip but corroboration goes to the veracity

So when get there find man matches description(pretty average) @ address –sees bulge in pocket(tip had said drugs in $) Was recent arrest there Drug area

Basis of Knowledge- don’t know how tipster knew maybe self-verifying so must have Personal Knowledge 1.b. Veracity- 12/20 correct tips in past

Just wasn’t verified 8 other times don’t know he lied 1st reach- Folded $1 bill no cocaine 2nd reach- Folded bill cocaine

2. Veracity- officer 6yrs experience- tinfoil and baggies- garbage had mail in it knew it was homeowners- garbage stopped being left at curb Known drug dealers go to home No Prob Cause not enough

Illinois v Gates - 1983 ***new law –even though Aug-Sp 2 prong still matter Facts: Veracity- anonymous letter- handwritten not much Basis of Knowledge- bragging-PK? Self-verifying- so detailed in predictive behavior Police response to letter:

Det find DL- ok 3rd party Det ask confide informant bank records for most recent address- ok 3rd party Det gets plane record of ticket- ok 3rd party @airport sees D get on plane D goes to room in Fl reserved in wife’s name Left in car w/ IL plates

Veracity and Basis of Knowledge relevant factors not must have both anymore Test Probable Cause: Totality of Circumstances

Simply make a practical, common-sense decision whether given all the circumstances set forth in the affidavit before him including the “veracity” and “basis of knowledge” of persons applying hearsay info, there is a fair probability that contraband or evid of a crime will be found in a particular place

Standard of Review- did magistrate have substantial basis for concluding that probable cause existed Policy: don’t want police not to go get warrants –if too harsh

White concur- using Aguilar-Spinelli have prob cause

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Shouldn’t change to totality of circumstances Brennan dissent- no PC

Payton v NY - 1980 Stevens Police had PC to arrest D- went to apt- when no answer used crowbar to break open door – no D but found shell

casing and used it at trial In Public- with PC can arrest or seize evid Here we look at whether can enter private If want to enter home for evid have to get warrant for search If want to enter to arrest need warrant

1. Common Law- home is man’s castle 2. Trend of States prohibiting warrantless entry 3. Congress has not deemed them reasonable

In terms that apply equally to seizures of property and to seizures of persons, the 4th Amend has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Pg 165

If have search warrant- homeowners don’t have to be there If have arrest warrant- homeowners not there police can’t go in- need PC to believe the person is there to enter White dissent- history does not support the rule

Problem with police having to decide if there is exigent circumstances and cts always having to reconsider it Old SC- warrantless searches are presumptively unconstitutional unless meets exception Now SC- now look at reasonableness

Absent consent or exigent circumstances can never enter home without warrant For Payton, on remand, State should try to argue exigent circumstance worried about him destroying evid

Won’t work though since sat outside for 30 mins before enter Need PC in home, pc committed crime, exigent circumstances to enter the home

Steagald- Someone else’s home need search warrant to go in with arrest warrant pg 172 US v Santana - When police got there D standing in doorway- before Payton warrantless arrests more prevalent

Doorway is in a public place- so OK to arrest But been interpreted now that not public until step outside home Screen door- makes diff public v private clearer

Lo-Ji Sales, Inc v NY - 1979 Burger Police bought 2 videos from store and watched with Judge decided that it was obscene- warrant to seize copies

of 2 Problems

Judge is supposed to be a neutral and detached magistrate Here Judge went to search and filled in warrant on scene

Warrant lacked Particularity Here warrant was invalid – but was it unreasonable? Public store

It was unreasonable though since commandeered the store, opened the packages, and used the booths for free

Pg 190 n.1 Warrant ok? A. no- not judiciary or neutral B. no-not neutral

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C. no- must read- how do you tell? D. yes- not going to second guess

Warrants need… PC Particularly Neutral detached magistrate

Execution of a Search Warrant Knock and Announce Wilson v Arkansas

4th Amend prohibition on unreasonable searches and seizures contained an implicit knock and announce rule previously embedded in common law All save dignity May stop violence No unnecessary damage to home

Richards v Wisconsin Knock and Announce unless reasonable suspicion to believe:

Officer in danger Others in danger Or destruction of evid

Seizure of persons during warranted searches Muehler v Mena - if reasonable don’t have to risk danger can handcuff someone during search

Banks - don’t have to wait too long after Knock and Announce (10-20 secs) of evidence subject to destruction Can look anywhere in home the item could be found

Won’t be reimbursed for damage if reasonable search Search of premises doesn’t give right to search people there unless warrant includes the person

Can detain not search ------------------9-18------------- Exigent Circumstances

Warden v Hayden Police search armed robbery suspects home about 10 mins after they get call PC here to believe D commit crime?

Yes-cabs followed D and called police Were identifiable and had basis of knowledge

Warrant? No here exception?

Consent- yes D’s mom let police in She acquiesced not consent

Exigent circumstances- yes + PC 4 exigent circumstances (MN v Olsen note case pg 205)

1. Hot pursuit 2. Risk of destruction of evidence 3. Flight 4. Risk of danger to police or others

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As long as have PC to believe 1. He’s criminal and PC that he’s committed crime 2. He’s in the home –PC 3. Can use any1 of 4 exigent circum to warrantlessly enter home

Once in dwelling police can search for: Suspect/perpetrator Weapons

To protect against harm to themselves or others But cannot search for evidence of crime

Although here SC let it go that police found D’s clothes (evidence) because police found clothes while he was looking for gun in washing machine

4 seizable items 1. Contraband 2. Fruits of crime 3. Instrumentalities of crime 4. After Hayden, police can now seize “mere evidence” also

You can’t search for evid of crime but can seize it if they stumble upon it Exigent Circumstances only last as long as justification for warrantless conduct compels

Once emergency/exigency is over, must get warrant to continue So here if police didn’t have PC to believe there were weapons wouldn’t have been ok to look in washing

machine OR if police had secured all people, (were sure mom and D were only 2 house and had them

secured)police couldn’t have continued search for people/weapons because exigent circumstances were over

Exigent circumstances only last a few minutes 20 mins is definitely full-fledged search requiring warrant

Welsh v WI -1984 Definitely exigency (police get call re: drunk driver driving into ditch) Exigent circumstances because BAC decreases every minute BUT DUI was minor offense in WI in 84 –so couldn’t enter home

This shows us gravity/magnitude of offense factors enter 4th amend reasonableness inquiry 1. Limited to home cases 2. Offense was non-jailable

Mincey v Arizona - 1978 Murder is exigent circumstance BUT only during exigent circumstances- not long term- like here (police search home for 4 days and this

requires warrant) Police have 2 functions

1. Community caretaking function 2. Investigating crime function If they have reasonable belief there is exigency, can go in home warrantlessly under community

caretaking function But remember exigency lasts only as long as it takes to negate exigency they need

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Problem 6 pg 209 1. Consent? No- D not @ door –only his visitors 2. PC ? smelled meth chemicals coming from home and informant tip that D makes meth

So prob yes 3. Exigent circumstances?

Swords on wall- probably just decoration and not dangerous and also police are armed with guns Fear of destruction of evid- stronger than sword argument BUT friends said D was sleeping so should

have given D longer then 30 secs before entering However what if D was destroying evidence while police talking to D friend etc.

Meth labs are dangerous and could blow up BUT if police had this PC and were afraid of danger should have got warrant 1st and investigated in

safer way Hypo- police get complaint go to home hear loud music, knock, D answers, police smell pot, D closes door in

police face Consent?-no slammed door PC –yes police smelled it Exigent circumstances? Yes imminent destruction of evid

Problem 6 Pg 217 murder suspect D arrested @doorway Circuits split on whether public search of person incident to lawful arrest

Chimel gives 2 reasons 1. To prevent persons harming police with weapon 2. To prevent destruction of evidence

Robinson Rule of general justification Always allow police to search person incident to lawful arrest Police can open any closed container found on arrestee’s person Under Robinson purse/wallet considered part of person Contemporaneous search incident to arrest

Search of Butt Reasonableness Probably ok if police discreet about it

Chimel Can search person or area within his immediate control(arrestee’s wing span)

So some cts hold that whenever D handcuffed, his area of immediate control is very small Arrests of Automobile Occupants

NY v Belton - 1981 Traffic stop for speeding, smells marijuana and sees envelope marked “supergold” –pulls 4 out of car IN public so arrests 4 for possession Pats 4 down (Robinson)- goes to car finds jacket – searches it finds cocaine Gov argues jacket was within D immediate control D argues Chimel 2 argument I wasn’t near jacket- how could use anything or destroy Ct says constitutional search

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Bright Line Rule- When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Police may also search containers and compartments whether open, close, locked, or unlocked (ex:

luggage, briefcase, bags, glove compartment) Trunks not included unless easily accessible from inside of car (hatchback)

**Only for automobiles- won’t affect homes Typically an occupant of a car can reach anywhere in car- so bright line makes clear for police

Problem 4 pg 232 Arrest public (Watson) based on pc Pat down (Robinson) Diff between here and Belton Carla approaching car not in it yet: if ok under Belton then:

Glove compartment (Belton?) Trunk –no under Belton

Maybe good since why should they have to wait Thornton v US – 2004

Suspicious vehicle – follows to parking lot – officer meets up w/ D out of car- drugs in pocket arrest in back of police car

Searched car finds gun Ct holds constitutional since D was recent occupant of car The danger(destr of evid, off safety)is in being near the car during arrest not how recent was in the car Scalia concur in judgmt Ginsburg

Keep Robinson- rule general justification Keep Chimel if on facts can show Expand if reasonable belief would find evid there can search

5 don’t like Belton Steven/Souter dissent OConnor Concur Scalia/Ginsburg concur in judgmt

Belton- Thornton- relatively expansive search- person passenger comp, compartments Knowles v Iowa - 1998

Speeding- cannot search incident to a citation Atwater v City of Lago Vista – 2001

Kids weren’t buckled- arrested There is no minor crimes exception to warrantless arrests Need clear administrative bright line rule

State v Ladson - 1999 Pretextual stop – saw him had heard rumor involved with drugs Did have reason to pull over though

Whren v US - 1996 Officers see car stopped at stop sign for unusual long time – then speed away- right without signal D argues so many provisions in traffic code could pull you over If reasonable officer would have made stop your subjective intent in making stop doesn’t matter

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Rule- Whether an officer could make the stop? Was there PC Police can stop any violators of traffic code

Moore State law can’t arrest for this violation Officer did anyway Ct said 4th Amend there was a prob cause to arrest so constitutional even though state says unlawful arrest

Devenpeck v Alford – 2004 Pulled over- recorded traffic stop- they arrested him for recording searched car Found unconstitutional since can record public activity Since had pc to arrest when pull over search was constitutional – Objective

State v Sykes -2005 PC to arrest for trespass – found cocaine in wallet after said won’t arrest

Search incident to lawful arrest can precede arrest (Rawlings v Kent 1980) Officer subjective motivation is irrelevant (Whren/ Alford) Objectively officer had PC too arrest(trespass)

------------------------9-25-------------------------------- Carroll v US -1925

Ct says police can search an auto with PC without a warrant Exigent circumstances- reasonable search limited to what is necessary until exigency expires Autos –readily mobile

Chambers v Maroney - 1970 Ct says when arrested, car towed to police searched without warrant No inconvenience to get warrant General Justification Rule: Warrantless stationhouse search supported by PC constitutional

Calif v Carney - 1985 Tip that D exchanging marij for sex out of mobile home Police surveillance of mobile home stop by leaving home after being in home for hour – corroborates tip Boy goes back to mobile home with police- knocks D opens door- police enter without consent or warrant Mobile Home Distinction

Auto v Home? How is it being used?

Auto- on roads, if parked in parking lot Home- on cement blocks, connected to utilities, parked in camping grounds

Carroll/Chambers/ Carney Automobile Exception Warrantless searches of auto upon PC constitutional Reasons:

1. Ready mobility of vehicles 2. Less expectations of privacy in cars

Due to gov regulations Inspection, registration, etc Subject to traffic stops

Dissent –mostly believe it’s a home- believe in warrant requirement 3 types

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Belton/ Thornton- incident arrest Passenger compartment- including recent occupant- containers

CCC- Automobile SD v Opperman - n3 pg 265

Inventory search pursuant to “routine administrative caretaking functions” N4 pg 266

Pc? When arrive- no No veracity yes PK – anonymous caller, only partial corroboration No predictive information Obtain pc once smell marij out open window of car Auto exception- says can search car Difference –suspects were brought back to car- CCC- D’s were in car Justifications- still mobile and less expectation of privacy

N5 pg 267 Ct prob say mobile means as long as not up on blocks

Can search the car Containers in Cars

US v Chadwick - 1977 2 loaded trunk into train- employee notified DEA in Boston Agents with canine – notifies of drugs- wait D comes- police follow and 3 bring trunk to D car put in trunk of

car then arrested all 3 Police took control of car with locker Brought back to station and searched Not contemporaneous in place or time and not in immediate control so no search incident to arrest

justification Gov argues 4th Amend warrant Cl only applies to home- so this only has to be reasonable Ct rejects unanimously – way to extreme Closed Containers Law- Warrant requirement 4th Amend required warrant here for constitutionality

Can seize with PC but get warrant to open Gov did try below for auto exception not on appeal

Arkansas v Sanders - 1979 Closed container in car still requires warrant as it does in public

US v Ross -1982 With PC to search whole car can open bages

Calif v Acevedo -1991 PC to know bag D came out of house with had marij in it- D put in trunk and police stopped Auto Exception- CCC- allowed to open bag in car taking some away from Chadwick ***Became very strange since now need warrant for bag carrying in public but no warrant if lock bag in trunk Scalia concur- wants to re-do this

Just don’t need warrant if have PC to open bag Which was seen as extreme in Chadwick “writing on the wall”?

Plain View Doctrine---9-30-------

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Horton v Calif – 1990 Obtained search warrant with particular place(home) to seize 3 rings When get in home don’t find rings but seize other evid of crime of robbery Officer seized evid not discovered “in advertently”- since admitted he was interested in the other evid The same search would have taken place whether he knew he was looking for guns or not- same privacy

invasion Privacy invasion vs possessory interest Higher held vs little lower Officer didn’t look anywhere warrant didn’t authorize

Plain view authorizes Even though inadvertence is a character of most legitimate “plain view” seizures it is not a necessary

condition Plain View Conditions

1. Immediately apparent to officer that it is incriminating char- pc subject to seizure 2. Lawful location of officer 3. Plainly seen 4. Lawful right of access to object (not through window)

Arizona v Hicks - 1987 Shot through the floor Police enter apt in community care taking role- want to ensure that no one is harmed – looking for victims,

shooter, weapons While there find weapons, stocking cap mask (instrumentality) Do have PC to believe armed robbery? 2 sets of expensive stereo equip in almost empty apt Gov stipulated to only having reasonable suspicion

[should have fought for PC] Officer moves stereo to get serial numbers- is it a search or seizure?

Ct not going to restrict reading of the numbers in plain view Calling numbers into PD not a search or seizure – ct says fine if there lawfully To move it to read number is a search need PC [have 2,3,4 but not 1 of plain view]

O’Connor dissent Believes this is a mere cursory exam of an item in plain view and as long as officer has reasonable

suspicion should be constitutional Consent

Schneckloth v Bustamonte - 1973 Light out on car- stop car 6 passengers driver no DL pull all out- no one owns car- one is brother and officer

asks for consent to search car- officer finds stolen checks linking D to theft Consent- constitutional- have rights to waive rights- help police/ assist Was it voluntary?

Whether will was overborn Free will v coerce

Gov burden to prove voluntary Here also want to require that D knew he could refuse to consent

17


Ct holds have to prove voluntary- look at facts of circumstances To require proof that D knew of right to refuse would have negative effects

People willing to consent- very important – happens a lot Informal setting vs disclosure rights at trial To disclose right before ask for consent – will discourage people from consenting

Bumper v NC -1968 Officers show up say I have a warrant to search your home- D says “go ahead” – at trial gov relied on consent

not on warrant – ct no consent- just “acquiescence to a claim of lawful authority” Can give options –Police can say I’m going to get warrant unless let me in- as long as basis for statement- if say ok

fine- you have consented If a person voluntarily consents to a search:

Can set limits of a temporal nature (2 mins) Or limit in scope of search (only kitchen)

May withdraw consent after it is granted US v Matlock - arrested in yard put in car- police ask live in gf can we search home

anyone with common authority over “thing to be searched” can give consent- constitutional Georgia v Randolph -2006

Here one says go ahead- other refuses to consent to search Officers search and arrest man who refused Ct says unconstitutional

Social norms if come to home and cotenants can’t agree on whether to enter the guest would not enter Present objecting parties can’t search

Roberts dissent 3rd party doctrine- assume risk that cotenant might give over to police things you give common authority

over ---------------10-2------------------------ HYPO

Object, arrest, go back Co-tenant says sure Circuit Split on whether that is constitutional

Since only reason not present anymore is because police arrested Illinois v Rodriguez - 1990

Gail Fischer shows signs of beating says D did he’s sleeping @ “our” apt takes police to the apt lets in with a key

Police arrest D and seize drug paraphernalia in plain view Matlock- consent by someone with common authority is constitutional Fischer does not have common authority since actually moved out a month age and had key without D

knowledge Ct believes police should be held to reasonableness for common authority Apparent Authority is sufficient for police believing someone has common authority 4th Amend demands reasonableness not correctness Police held to objective standard

18


The surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it with further inquiry

Objective reasonable standard to police: must be judged against an objective standard: Would the facts available to the officer at the moment

“warrant a man of reasonable caution in the belief” that the consenting party had authority over the premises

N3 pg 331 No- possibility of access if in handcuff 30 ft away Officers reasonably though it was within D control “It is apparent that in order …is not that they always be correct but they always be reasonable” Rodriguez

FL v Jimeno - 1991 Scope of consent- a consent search is invalid, even if the consent was voluntary, if the police exceed the

scope of the consent granted What would a reasonable person believe they gave you consent to do

Problems pg 332 5AO –no consent to opening can -exceeded scope

Now that can is open its damaged –not same as open bag Chadwick-closed containers seized can- got warrant then can search

5AM- exceeded scope? 5th Cir said cutting tape is more than looking in paper bag but less than opening can Reasonable person would believe officer would open one of the boxes- commercial truck less expectation

of privacy 5B – if belonged to X- reasonable to assume police would look in unlocked suitcases for guns, drugs

Belong to D – common authority? Probably not wouldn’t expect X to look through his bag With 2 people 2 bags shouldn’t assume belonged to one you got consent from- should have asked

Apparent Authority can go away- if woman says yea go ahead its ours and police find male stuff must at least ask another question Lose apparent authority

Can only give consent over what you have authority over Frank v Md -1959

Health inspector looking for rats- Frank says can’t come in Health inspector can’t get a warrant Ct says 4th Amend doesn’t apply no criminal investigation

Camara v Municipal Ct - 1967 Ct says 4th Amend applies to all gov conduct and actors Messed up with Frank PC here- as long as general regulatory routine

Not discriminatory or arbitrary can get warrant Terry v Ohio – 1968 Warren Ct

Officer McFadden – 39 yrs police 35 det experienced Terry, Chilton seemed to be “casing” a store – Katz came by left 2 walked by about 24 times – then let met up

with Katz Seizure- whenever a police officer accosts an individual and restrains his freedom to walk away

Rule- Reasonable suspicion that involved in criminality

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Would be almost impossible to prevent crime- if don’t allow reasonable suspicion or have to leave and get warrant

Pat Down Rule- Reasonable suspicion of criminality and that person is armed and dangerous To protect police and public from harm When suspect of armed robbery- reasonable to assume probably armed Other reasonable assumptions of armed

Crime itself Movements Bulge

Confidence Spectrum 0% suspicionless ex: road block Hunch Reasonable Suspicion- specific and articutable facts Probable Cause- fair probability

Reasonable Suspicion is “obviously less demanding” than this 51% Preponderance of the Evidence

Reasonable Suspicion is “considerably less” than this Clear and Convincing Evid Beyond Reasonable Doubt 100% Absolute Certainty

Problem Pg 352 n6

Reas susp Past felony can stop Terry applies when an officer seeks to investigate a completed felony Past non-dangerous- no On going misdemeanor – yes can stop

Pg 354 n10 Can do dog sniff on Terry stop- not a search under 4th

Some cts have automatic companion rule Extension of Terry Can pat down others if arresting only one

----------------10-7------------------ Sibron v NY -1968

Companion to Terry Seizure of S – since said “come with me outside” No reasonable suspicion- only based on guilt by association- never saw anything pass between Couldn’t even stop If had reasonable suspicion saw transaction would have right to stop

Is drug dealing inherently dangerous? Most cts have said yes- pat for weapons

S put hand in pocket- reas for O to put his hand in as well for safety

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Terry is pat down but also going to consider unique facts based on officer’s reasonable actions # 1 and 2 of Terry allow an officer to take a backpack off the person while stopped to ensure they can’t reach into

the bag Many cts allow search for weapons if have Terry 1 and 2

Quantum of Suspicion –(up) 1= Reasonable Suspicion 2= Probable Cause Degree of Intrusion - (across) .5= Consensual Encounter 1.5= Terry Stop 2.5= De Facto Arrest How about something in the middle?

1= reasonable person feel free to leave- Mendenhall 2= Dunaway v NY /Royer Mimms Wilson/ Sharpe

Dunaway v NY - 1979 Brennan Informant says D involved in murder and attempted robbery – not enough for probable cause only reasonable

suspicion Police find D at neighbors house and ask him to come with them to HQ’s –not told under arrest Taken by police car and put in interrogation room Ct says De facto arrest – doesn’t matter what police call it

What separates Terry stop from arrest? 1. Show of Authority- touched, held

Terry- one officer stop on street Dunaway- 3 officers come to home

2. Duration- Terry- brief ; Dunaway- longer 3. Movement- Terry- done on street ; Dunaway- taken to HQ’s

FL v Royer - 1983 Moving to adjacent room to terminal Ct said an arrest Look at:

1. Degree 2. Justification

1. Further away 2. Investigatory PA v Mimms - 1977

SC when an officer legally stops a driver on hwy he may order out of the car without firther justification Still a Terry stop 1. Small intrusion 2. Officer safety

MD v Wilson – 1997 Can order passengers out of car Still a Terry stop 1. Small intrusion 2. Officer safety

Separate Terry from Arrest21


1. Show of Authority –number of officers, tone of voice, HQ’s, car, handcuffs, show of duty 1. Degree 2. Justification Totality of circumstances – typically may be indicia of one or another but must look at facts

2. Duration- look @ 1. Degree 2. Justification 3. Movement – not a bright line; look at totality of circumstances

US v Sharpe -1985 Stop took 20 mins- but only because D eluded police and there were 2 cars involved

The police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain D

20 mins could be too much in other cases but ct recognized the delay in this case was attributable almost entirely to the evasive actions of D who sought to elude

US v Montoya de Hernandez - 1985 pg 363 N6 D held 24 hrs only Terry stop –Police had reasonable suspicion Offered her an x-ray –she refused Offered her to go back to Columbia- she couldn’t VISA problems Said fine we’ll wait for you to pass the balloon After 16 hrs police went got ct order- confirmed suspicions Because also at Border- given many leeway in 4th Amend at Border to stop items coming into country

US v Mendenhall - 1980 Stewart Flew from LA to Detroit D last off plane, appears nervous, looks around whole area, no checked bags, changed airlines for flight out DEA stop D ask for ID and ticket Was D seized?

No when reasonable person would not feel free to leave Got to be more than officers asking for ID 3 said Yes; 4 Dissent Yes

Was there Reasonable Suspicion? Don’t need to decide 3- yes; 4- no

Different names- now officers tell her we are Drug Enf.-give ID back she gets more nervous Seizure Rule- would a reasonable person feel free to leave

Pg371 N2 – Seizure- yes when hold ID won’t feel free to leave without their ID US v Drayton - 2002 Kennedy

Bus from Ft. Lauderdale-> Detroit On way- stop and 3 police come on bus- one stays at front Other 2 start from back asking passengers can we search bags When get to D consents to bag nothing and both consent to search of person –both had drugs taped to thighs SC- holds here entirely consensual a reasonable Person would feel free to leave

FL v Bostick -1991 Would a reasonable person feel free to leave or feel free to terminate the encounter, then he or she has not

been seized In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own

What if police tell you to go away?

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4th amend seizure? Feel free to leave? He’s telling you to

-------------------------------10-14--------------------------------- Review- Terry

Under totality of circumstances would a reasonable person feel free to leave or end the encounter To separate Terry from a Arrest

Duration Movement Show of Authority Look at Degree and Justification

Calif v Hodari D - 1991 Found youths around a car when officers approached youths took off D threw a rock while running officer tackled and found rock to be crack Issue: Whether at time he dropped the rock he had been seized?

If yes excluded since no reasonable suspicion If no it was abandoned and legally recovered

Ct says no not a seizure –had not used physical force Show of authority only a seizure if D submitted to that authority Now less clear when a seizure occurs

Problem pg 383 N2 Initial Show of Authority – flashing red lights Reasonable person would not feel free to leave So if pull over you are seized since submitted Passenger? Don’t really know when submitted- depends on actions after driver makes decision

Unanimous – Brendun-2007 When officer pulls over a vehicle all passengers are seized as well when stay seated

Left open taxi, buses 2nd show of Authority – officer says “Holdup”

Reasonable person would not feel free to leave Submission? Ct said yes even if momentarily he replied and submitted

Reasonable Suspicion Alabama v White - 1990

Anonymous tip- will leave soon from certain address, in car, go to hotel, with drugs Veracity - No it’s anonymous Basis of Knowledge - No didn’t say how would know- maybe because of detail and predictive behavior Police left immediately to surveillance the address- followed her to pretty close to hotel and stop her

Maybe safety –prob going to meet someone Maybe want to try controlled delivery without tipping off other person

Ct held yes reasonable suspicion here Low threshold and it was met here Predictive behavior accurate

Adams v Williams pg 388 N4 If known informant who gives tip establishes reasonable suspicion unless proved unreliable in past

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As long as an identifiable person could charge if lie to you Fl v J.L - 200 pg 388 N5

Anonymous tip young black male at bus stop Police found him- nothing suspicious except tip- police frisk find gun Ct unanimous- not enough for reasonable suspicion

Either ask questions to tipster for basis of knowledge Or go up to person and try to talk to the accused

Dicta - the danger of a tip may permit a frisk If same tip but male had a bomb Still no reasonable suspicion but may allow search Schools may be different rule for Terry frisk since lower expectation of privacy

Hiibel v 6th Judicial Dist Ct of Nevada - 2004 pg 391 N7 Dispatch to investigate a report of man assaulting woman Police can ask for ID – no problem If do have reasonable suspicion for Terry Stop –can require providing ID by state statute Kind of can’t hinder investigation

Problems pg 393 N8 A. No reasonable suspicion- no corroboration- No Veracity-anonymous

Basis of Knowledge- little- perfect description Ct allows for greater danger caveat of JL

B. Alabama v White- yes reasonable suspicion ---------10-23--------------------------------- Auto searches- Belton/Thornton

Bright line/ general justification How before SC this term-heard oral argument

Seems like rule is in trouble Special needs

Anything beyond ordinary crime control Michigan v Sitz

Sobriety Roadblock 1. Was there 4th Amend seizure of persons?

Yes Test for seizure: Whether reasonable person feel free to leave

2. Was there reasonable suspicion No

These were suspicionless searches But constitutional because special needs

Dissent- state rule well Consideration of the constitutionality of such seizures involves a weighing of

1. Gravity of the public concerns served by the seizre[drunk driving] 2. The degree to which the seizure advances the public interest[protects people that would be hurt by

drunk drivers] and 3. The severity of the interference with individual liberty [low]

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Majority Finds it important that everyone is being pulled over- find this much less intrusive/intimidating[#3]

Edmond Drug interdiction checkpoint Use same 3 part special needs test

1. Gravity of public concerns served by seizure SC finds war on drugs serious

2. Degree to which seizure advances the public interest There was about a 10% hit rate, which was high

3. Severity of interference with indiv liberty Person was held for a few mins – not very intrusive

SC finds checkpoint unconstitutional Purpose was for crime control/drug interdiction- Not public safety

Unlike Sitz where purpose was to protect people from drunk drivers Policy -

Pragmatic purpose is ok for 4th Amend purposes but officer intent is not to be inquired on for 4th Amend purpose

This is how to resolve this in light of Wren case Do police can use dog sniff at DUI checkpoint- police just can’t have dog sniff as primary purpose

Public safety must be primary purpose Problem 5 pg 433

1. Seizure- yes 2. Reasonable suspicion- yes- D suddenly veered off ramp when he saw the roadblock Ex- in co- police use checkpoint signs even when there is no checkpoint and when they see people make U-turns

to get away from checkpoint they have probable cause to stop the car this is constitutional Standing

People can only assert their own constitutional rights Ex: female passenger very intrusively searched[ body cavity] male driver argues unreasonable search but cannot

assert female’s 4th Amend rights She had the 4th amend claim –not him

Standing gives hit to deterrent impact of exclusionary rule Problem 5 pg 445

Assume Bob owns car- stop was illegal and no consent and no PC –so search was illegal- so jacket will be suppressed

D. if stop was illegal Bob was stopped (Brendlin 2007) and would argue but for the stop the search of trunk wouldn’t have occurred- so jacket will be suppressed

A. Can Bob get jacket suppressed? Bob lacks standing because he lacks reasonable expectation of privacy in trunk

Rakas Passengers may have reasonable expectation of privacy- but unlike D in Rakas, D must assert and prove that

he has reasonable expectation of privacy

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Dissent argues Rakas will confuse police- but is won’t because polise need justification(PC) for going in trunk- and unless police are sneaking around- who cares who has standing- police have justification (PC) to be in trunk

Only question is did search invade D’s reasonable expectation of privacy? But helpful to take it in 2 steps

1. Did search invade D’s expectation of privacy? 2. Was it constitutional/ reasonable?

MN v Olson Overnight guest has reasonable expectation of privacy in home

But overnight guest probably doesn’t have reasonable expectation of privacy in basement (all depends on specific facts)

In car context If Bob is passenger and doesn’t have close relationship with Alice who is driving Bob has reasonable

expectation of privacy in his seat- but probably not in the trunk Rawlings

Police find D’s drugs in his friend’s purse SC hold D didn’t have reasonable expectation of privacy in friend’s purse so cannot contest search of her

purse Problem pg 456

A. he gave her his bottle to put in her purse- didn’t give her bottle with permission to open it This was a closed container and need warrant to open closed container

B. can argue same as above- also letter taken away for 4 days only on hunch and this is not ok MN v Carter

See bagging cocaine through window Confidential informant is different than anonymous informant

CI has more veracity Police know CI and don’t want to give out name but police don’t know anonymous informant Reasonable expectation of privacy falls on continuum

Rakas[Burglar no REOP] -----Rakas, Carter[ commercial visitor lawfully on premises no REOP]-----Owens[overnight guest REOP]---------Payton[Own home REOP]

Kennedy- Almost all social guests have REOP in areas of home they’re permitted to use during visit ---------------------10-28-------------------------------------- The Exclusionary Rule

Criticisms No specific deterrence- indiv officer thinks doing a good- get criminal off street ER v Tort – putting a price on 4th Amend protection

Will tort claim deter? US v Calandra -1974

4th Amend exclusionary rule does not apply in grand jury proceedings Using evid at trial is not a constitutional wrong

We use ER to deter future police misconduct Judicial-created remedy to protect our 4th Amend rights

Other Incidents

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No ER Grand jury, Parole revocation, Probation revocation, Sentencing , Deportation, Civil, Impeaching D’s

testimony, Good Faith ER

Prosecutor’s case in chief, Impeach other D’s witness US v Leon 1984

Confidential informant unproven reliability Get warrant – find drugs Dist Ct says affidavit was insufficient to establish PC – so warrant was found invalid Substantial basis that magistrate thought was fair probability officer would find evidence

This was Gates after this case Good Faith Exception

Objective Good Faith Exception When a reasonable officer would execute or reasonably relies on warrant issued by neutral and

detached magistrate won’t exclude evid Purpose of ER- deter future police misconduct

Magistrate that made mistake Do we lose judicial integrity? Ct says won’t deter judges and no evid that judges ignore 4th Amend

Mass v Sheppard - 1984 Officer finds wrong warrant form changes it- goes to magistrate Some problems with warrant- Judge says don’t worry I got it Officer objectively reasonable relies on warrant executes search so evid is not excluded

Leon Good Faith Exception Groh v Ramirez -2004

Typo in what to seize – copy and pasted address by mistake Warrant lacks particularity so 4th Amend violation Didn’t think reasonable to rely on it not going to seize whole home

Arizona v Evans -1995 Relied on computer check that said warrant for arrest Clerical error by ct clerk – officer reasonably relied on information

Good Faith Exception to ER Ct also recognized for

Statute later found unconstitutional A stop by officer later found to be with no reasonable suspicion

Hudson v Michigan -2006 Police with warrant without knock and announce go in get evid 5-4 do not exclude that evidence even though no knock and announcing is a 4th Amend violation Direct shot at ER – no incentive to knock and announce

Only deter is tort, administrative action Herring v US –now

Erroneous information from police personnel 11 circuit said no exclusion reasonable reliance

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SC has now Problem 8- Leon doesn’t apply since not a Magistrate

Evid excluded ----------------10-30------------------------------ Fruit of the Poisonous Tree

Silverthorne Lumber Co v US – 1920 Illegal seizure – ordered to return papers before copied them and wanted to use them Ct said no- would make 4th meaningless

Will not be excluded if 1. Independent Source

if find evid through illegality then someone comes forward Will allow since could have found due to person

2. Inevitable Discovery if searching for something then stop to go to spot can argue would have inevitably found the evid

3. Attenuation of Taint if learned a name and went to talk to the person and that person talks- gets to be to far

Why? Because if mistake made early everything would be excluded so if too far from taint ct will allow Wong Sun v US -1963

Facts-1. HomWay- Constitutional arrest of heroin possession –tells police got from Blackie Toy at Laundromat 2. Knock and Talk at Toy Laundry- constitutional due to 3rd party doctrine 3. Police show badge Toy runs to back- Police enter and arrest – not constitutional since no PC or

reasonable suspicion 4. Toy says not me but talk to Johnny Yee -Police went to Yee home and enter- not constitutional entry-

no exigency should have got warrant – seized heroin 5. Toy and Yee give up Wong Sun- go to home wife answer door is Wong Sun here- yes sleeping in back- 6

officers enter- not constitutional should have got her consent 6. Initial Appearance 7. Interrogate

Toy Challenge 1 : Statements in laundry Farthest back tree (police action)?

Arrest of HomWay Poisonous? No Poisonous tree?(constitutional violation)

Entry to his laundry Are his statements fruit?

Yes but for police entering he wouldn’t have made them Is there attenuation?

No derived so immediately Toy Challenge 2 : Yee’s heroin

Nearest tree? Entry to Yee’s home Poisonous? Yes Is heroin fruit? Yes Attenuation? No

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Excluded? No – not Toy’s right – no standing as to Toy Another tree? Entry to laundry Poisonous? Yes Is heroin fruit? Yes Statements led to home of Yee Attenuation? No- Ct says quick, nothing important happened(Sec III)

Wong Sun Challenge 1: Toy Statement in laundry Wong Sun doesn’t have standing to claim this

Wong Sun Challenge 2- Same for Yee’s heroin Can only raise own 4th Amend violations –admissible to Wong Sun

Wong Sun Challenge 3- Post-arraignment statement Tree? Entry to Wong Sun’s home and his arrest Poisonous? Yes Is Wong Sun’s Statement fruit? Yes Attenuation>? Yes days had lapsed, exercised free will came back on own, was released

Won’t be suppressed – came down on own- statement in as to Wong Sun Brown v Illinois -1975 pg 492 N2

Categories to look for attenuation 1. Length of time elapsed between initial illegality and seizure of fruit in question 2. The flagrancy of the initial misconduct 3. The existence or absence of intervening events before seizure of fruit 4. The presence or absence of an act of free will by D resulting in seizure of fruit

Attenuation is a policy judgment Arrest in home without PC –take down to station and Miranda and confession Tree? Arrest without PC Is confession fruit? Yes

Gov burden to prove not a fruit – can’t prove would have just came down and confessed Attenuation? Short time, police knew didn’t have PC (flagrant violation)

Confession excluded fruit poisonous tree NY v Harris - 1990

Police had PC to arrest- entered home illegally- brought back confessed But for illegality would have got confession?

Yes it was lawful custody could have got him on street later Doesn’t incentivize police not to get warrant since if gone into get him and saw evidence that would have

been suppressed Hudson v Michigan - 2006

Police with warrant to search home Violated knock and announce requirement Ct said evidence admissible with violation no right to exclusion

US v Ceccolini - 1978 Unlawful obtained information about D gambling- police gave information to Feds they want person who

gave information to police to testify Tree? Opening envelope Poisonous? Yes

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Is it a fruit? Yes Attenuation? Time, flagrant, intervening? Prob free will

In case of a witness should be wary of exclusion since very important Witnesses often come forward on own anyway

Rule – Much harder to exclude witness testimony than physical evid Other thing here- 1st thing done was mistake- Cts don’t want to throw out whole case

Torture Is it effective?

Are they just saying what they want to hear to stop the pain May work in some cases but generally overall does it?

Spano v NY -1959 Kills a guy- calls friend (officer) says turn self in with attorney Does so – attorney says don’t talk 7:15-1am questioned doesn’t say anything Move D to another location –bring friend in to guilt him – friend goes in 4x’s finally gets a statement Use statement to convict Rule to see if statement was involuntary or voluntary: Whether D’s will was overborn ?

Gov burden to prove voluntary by preponderance of evidence Totality of circumstances test

Reliability is not a concern – involuntary is about more This is about Fairness- it’s a true confession but want deterrence

Involuntary Concern with:

Reliability - Hector, Brown ex: beat till confess correctly Fairness - Spano ex: interrogate till exhaustion and confess Mental Freedom- ex: sit in as a priest listen to confession

Spano Totality of Circumstances – Ct looked at: Manner of Interrogation

Time[night] Length[ 8hr] Number of officers [many] Leading questions? Lies/ sympathy[officer friend story] Physical harm/ threat[no] Ask for attorney[yes]

Character of Suspect Age[25] Foreign born[yes] Educated[jr high, failed military intelligent test] Experience with criminal justice system[none] Mental illness[yes] Employment [yes]

Types of Lies Police can tell

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May make up evidence or witnesses If lie about “look we won’t prosecute just tell us”- leniency promises(specific facing 25 we’ll get you 6 )

Vague promises are okay not ^- We’ll talk to DA for you tell cooperated Looking for whether renders involuntary? Was will overborn?

Problem 5 pg 494 Tree? Unlawful arrest Poisonous? Yes Is drugs fruit? Yes Attenuation? Yes Find Attenuation if it’s a new crime – that new crime is an intervening crime/ event So evid comes in as to S

Murray v US -1988 Warehouse – break in no one there so go back outside- kept under surveillance went got warrant and waited

until warrant back Had police saw 2 cars left warehouse both cars had marijuana Ct says Independent Source in warrant

As long as would have been able to get warrant before illegal entry it’s considered an independent source Ct says enough deterrence on police

------------------11-6-------------------------------------- Automobile Stops –DWI

Special needs- gov interest –save lives intrusion –minimal- no discretion is it a fit? Yes get results PA Supreme Court – traffic backs up- can have discretion to let cars through to alleviate traffic DP Right- 14th Amend to states 5th Amend- self-incrimination

Confessions: The Voluntariness Requirement pg 505 Hector(A Slave) v State - SC Missouri 1829 Brown v Mississippi - 1936 USSC

Using torture to get confessions from innocents- physical coercion Then use the confessions to convict Egregious miscarriages of justice An involuntary confession cannot be admitted into evidence Convictions overturned

2 Exceptions 1. Ticking Time Bomb Scenario

Torture one person to save thousands Minimal time period

2. Sloer-fuse high-level terroris Have many information about soon to come terrorist attacks Names, places, how to be done

Problems pg 534 N7 A. Probably reliable – probably voluntary if this is all

Dr called by police maybe not enough for mental freedom B. unreliable- giving the D the details of the crime- involuntary C. Townsend v Sain-involuntary- since under the influence- his will was overborn

Colorado v Connelly- trying to deter misconduct in involuntary confessions

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Police here didn’t know it would have this effect on D ----------------11-11------------------------------- Chavez v Martinez- 2003

DP claim –challenge of admission Here challenged the interrogation-never entered at a trial Ct says must show that the act shocked the conscious pg538

The conduct intended to injure in some way unjustifiable by any gov interest Privilege against self-incrimination Plurality opinion- since never went to trial nothing to challenge under 5th Amend 4 justices

Textual - “No person shall be compelled in any crim case to be a witness against himself” 5th Amend Trial right –admission at trial is the wrong

Precedents - Allow coercion for grand jury, witness contempt Compel statements all the time Well settled that if granted immunity when invoke 5th then must make statement

History - 5th Amend was to protect from the cruel trilemna of self-accusation, perjury, or contempt Maritnez could have remained silent so 5th doesn’t apply under history too

Souter concur Breyer Martinez cannot make the powerful showing to expand 5th priv

Schmerber v Calif - 1966 Limitation on 5th Amend Took blood over objection of D and admitted against him Ct reject D claim since not testimonial or communicative nature 5th is bar against compelling thoughts or knowledge of a person not from getting real or physical evidence

Lie Detector Test? Testimonial or evidence ?

Measures physiological responses of body to thoughts(answers to questions) Testimonial since getting at thoughts

Road to Miranda Bram v US -1897

Statement –voluntary under Spano Bram said not coming in though Ct said – any hope or fear as enticement to speak will not be admitted Bram feared silence would be an admission to Brown’s finger pointing

Why do we allow people to keep silent? Pros burden to prove guilt Utilitarian- want reliable statements- if must speak may misspeak under nerves or may misinterpret a

statement History- adversarial- not allowed to infer with statement guilty Immoral or wrong to punish people based on statements forced them to give

Miranda v Arizona - 1966 5-4 decision – not popular in country No state had required these warnings yet

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Deal with admissibility of statements from an individual who is subjected to custodial police interrogation for 5th Amend

Incommunicado interrogation of individual in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights Right to remain silent, right to attorn and in interrogation, if can’t afford one be appointed, explain

anything said can and will be used against in court Police practices

1. Privacy- being alone with person under interrogation 2. Confident in guilt looking for details 3. Minimize the crime 4. Patience and Perseverance 5. Offer legal excuses for actions 6. Fabricate evidence- line-ups 7. Reverse lineup- accuse of many crimes 8. Good cop Bad cop 9. Discourage requests for rights

Custodial interrogation is inherently coercive- so per se give them the rights first If person requests no talking- must stop interrogation If asks for attorn - must stop until talk to lawyer Gov must prove waiver was knowing and voluntary Not Constitutionally required must meet these ends this is one way to do it but there may be others

Is Miranda an Equal Protection cause? Since some people know these rights leveling this playing field here?

Illinois v Perkins -1990 If don’t know you are talking to a police officer Miranda doesn’t apply since not inherently coercive atmosphere Thought he was talking to a cellmate

----------------------11-12--------------------------------------------------- Interrogation

DP Clause – only if shocks conscious 5th –Voluntary statement- Spano Miranda- is custodial interrogation need warnings since inherently coercive

Knowing and voluntary waiver 2 days after Miranda -1968

Congressional Action §3501- Admissibility of confessions Spano voluntariness is rule Miranda are relevant factors in deciding whether voluntary

Trying to overrule Miranda Since believe Miranda is not a constitutional rule

Harris v NY -1971 Ct held that a confession taken in violation of Miranda could be used to impeach the D’s testimony if he testified

in his defense at trial

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NJ v Portash -1979 D compelled statements may not be used against him at trial

Michigan v Tucker -1974 Miranda is not a constitutional right but prophylactic to protect the 5th Amend

NY v Quarles -1984 Supermarket – “Where is the gun?” It’s over there – found gun arrest then Miranda then statement Lower ct –suppressed the original statement and gun and other statements as fruits Ct found a “public safety” exception

If reasonable officer could believe their safety or public’s safety in jeopardy can ask these types of questions without Miranda

Problem 3 pg 597 After asking when did you last speak to her? Since public safety exception- can’t invoke right to attorney since don’t have rights yet

Problem 5 A. no emergency no public safety –could arrest him and get the gun anyway A.1. no public safety/ threat B. Ct wants police to find the body so everything is in until see body so public safety of that person C. Ct said public safety of officer so admissible D. Ct said public safety exception of officers and car salesman

Reasonable officer test This is a strange situation to come upon

E. No public safety exception for own health of the suspect F. Needles yes public safety Drugs no

Oregon v Elstad - 1985 State concedes to early statement being inadmissible D argues later are fruits never knew at home didn’t have to talk – now cat out of bag Ct says no fruits doctrine to Miranda violation Each statement on own merits whether Miranda violation

Dickerson v US -2000 4th Cir decides to invoke §3501 Is Miranda constitutional? Ct says yes constitutional requirement Congress cannot supersede with legislation - Constitutional rules can change §3501 is no longer good

----------------11-13------------------------------------- Missouri v Seibert -2004

Burn trailer with dead son and friend who died in fire Take Mom in- talk to her then break then Mirandize again interrogate The 2 step interrogation procedure to get around Miranda Police doing this 1st statement can be used for impeachment and fruits but not in case in chief 2nd statement trying to use in ct Elsted- one question in living room of home then back at police department Here- both at police department and bad faith in withholding Miranda

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Ct here says both are out Issue : If intentional 2 step in context could the Miranda warnings function effectively?

Ct look at factors – plurality 4 votes 1. Time interval between unwarned/ warned[15-20 min-Bad] 2. Location- same or different?[same-Bad] 3. Unwarned- Exhaustive?[yes-Bad] 4. Refer back to Unwarned?[yes-Bad] 5. Explicit Warning – explain prior would be out [no-Bad]

Kennedy- concur in judgment When use 2 step deliberately post warning statements related to prewarning statements must be

excluded absent specific curative steps Dissent- give deference to Elstad

Just ask about voluntary of knowing voluntary waiver of rights Whether taint dissipated

Most narrow rule wins- narrow in change from Elstad[existing rule] Kennedy? When 7 justices say no subjective intent should be looked at If unintentional 2 step –unsure of rule If intentional- look for warnings effectiveness

Problem 5 pg 627 Have custodial interrogation- no Miranda statement out- keys in no fruits

What is custody? Oregon v Mathiason - 1977

Burglar suspect- det left card at suspect home please call- suspect says sure I’ll meet you- comes in- talking says I took the prop Mirandize then taped

Ct found no custody- “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Test: Was Mathiason “in fact” free to leave? Not in custody If not free to leave in custody

Marshall dissent- believes test screwy – should be looking at what suspect believes about whether free to leave

Problem 4 pg 632 Custody- never got keys back told couldn’t leave Just because came voluntarily – can turn into custody

Berkemer v McCarty - 1984 Traffic stop- suspect DUI- gets out of car Officer decides once D trips he will be arrested- failed sobriety test- asked what used? D says 2 beers

marijuana- arrested- asked more questions at station- never Miranda Gov argues should be fine since misdemeanor Ct says no exception for minor crimes to Miranda if in custody interrogation must Mirandize Arresting officer might not know what misdemeanor/ felony going to charge person with Exempt traffic stops from Miranda?

Not in fact free to leave – so Mathiason says not in custody Ct says traffic stop more like a Terry stop

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TEST- New over Mathiason If a reasonable person would feel their freedom of action is curtailed to a degree associated with formal

arrest Miranda becomes applicable Here no police didn’t do enough to restrain D Don’t care about D belief – reasonable person

Problem 2 pg 639 Not free to leave- 4th Terry stop but not enough to believe formal arrest – no Miranda until handcuffs on

Problem 5 No custody –handcuffs are normally indicative of arrest but explained and took off right away

Problem 6 A. no public safety exception since officer has knife

NO custody no formal arrest so no Miranda B. No custody since no formal arrest feeling of a reasonable person in D position C. a reasonable person wouldn’t feel under arrest- just being questioned

---------------------------11-18------------------------------------------ Miranda Interrogation

RI v Innis Taxi driver robbers and points out picture of robber at station Police have conversation about gun while in car with suspect – makes suspect feel guilty and he confesses

where gun was hidden because he doesn’t want handicapped children to get hurt because he hid it near school Waives his Miranda rights

D was in custody Was D interrogated?

Interrogation definition- Miranda refers not only to express questioning, but also to any words, actions on part of police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incrimination response from the suspect

[don’t get hung up on incriminating] SC finds the conversation was not interrogation

How were cops to know this cold blooded killer had a conscience Dissent argues that cops knew their conversation would likely elicit incriminating response and should be

held to be interrogation Interrogation- if police knew D’s susceptibility to their conversation (Ex: knew D had handicapped daughter)-

This would lend toward a finding of interrogation Problem 3 pg 647

Yes- custody because in jail Yes- interrogation because express question

So since no Miranda given – statement will be suppressed But here let in because to not let in crazy- this was not the intention of Miranda

But public safety exception Might not have been completely dead

4a) yes- custody because in jail cell Yes interrogation because word/action

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Reasonably likely to elicit incriminating response 4b)yes- custody

Yes- interrogation- when tell suspect God takes care of little babies An appeal to suspect’s conscience /religion lends toward likely to elicit incriminating response

4c) police tell suspect “you’re a liar” Is this likely to elicit a response?

H thinks interrogation because accusation like this begs for a response- but ct went other way 4d) suspect probably felt compelled to talk when police dramatically males tirade- likely to elicit response

Threshold Interrogation Suspect comes in to confess to get it all out Will usually all come in because not in custody so Miranda not required

Field sobriety tests Not testimonial

Routine Booking Questions Exception to Miranda interrogation Yes but testimonial- standard police procedure Is exception to police express questioning and is not considered interrogation for purposes of Miranda No Miranda required before routine booking questions

Problem What’s up?

Express question? Some courts say its not a question at all its just a greeting like hi Hypo- videotape of a co-d implicating D police tell D not to respond but give Miranda warnings, shows video and

D decides to talk anyway Yes videotape probably likely to elicit response – D wanted to make his claim to defend himself even though

police advised him not to and read him warnings Waiver and Invocation of Miranda Rights

Waiver must be voluntary, knowing and intelligent relinquishment of the Miranda Rights Govt has burden of proving waiver was 1. Knowing/intelligent and 2. Voluntary Butler

Waivers can be implied- don’t have to be express “I will talk to you but I’m not signing any forms”

Doesn’t expressly waive his right to attorney Dissent wants waiver of both silence and attorney Majority says that much is not required

Police don’t have to expressly ask “Do you waive your rights” Much better practice to ask “Do you understand these rights”

Must confirm that suspect understands his rights Silence is not enough

(can’t read warnings and then jump right into questioning ) Suspect who replies to Miranda with “I will talk to you but I’m not giving up my rights” shows ambiguity as to

whether waiver is knowing and voluntary- and where there is ambiguity there is no waiver Problem 6 pg 655

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Yes- this is valid waiver- we only care if police coerce suspect to talk- don’t care if parent coerces son to talk this is still suspect’s voluntary choice

--------------------11-20------------------------------- Edwards v Arizona -1981

Davis - post waiver unambiguous statement/ invocation takes away waiver- police can ignore ambiguous statements

Release from custody- Miranda goes away Edward’s shield goes away when released from custody Has to be long enough for a D to talk to an attorney for shield to come down

Ex: about 1 day What if call ahead “if ever arrest I invoke”

Anticipated invocation- doesn’t work Interrogation has to be imminent for invocation to apply Even upon arrest not enough imminence

Problem 6A pg 667 Unambiguous – it’s an invocation –don’t ant to be to picky about perfect language Ex: What about “I ain’t got shit to say to you” ambiguous- saying I have nothing to say to you- assertion? 3not

invocation Michigan v Mosley 1975- N1 pg 662

Invoke right to silence Police only have to scrupulously respect/honor right to silence Doesn’t have to be different officer or different crime

Less than right to an attorney Police need to get a new waiver but right dissipates quickly

Problem pg 667 6B not in custody can’t invoke a right don’t have 6C unambiguous invocation- has name and card said to police 6D D re-initiated contact with police after right to silence- waived after dissipation 6E SOP- routine booking questions exception to Miranda

Police can ask hair sample- non-testimonial evid D initiated talking- shield comes down Waives rights Talks-then asks for attorney Shield back up Agents stop- D initiated talking again so all admissible

Video Interrogation of Michael Crowe Interrogation- anything reasonable to elicit a response

Including an express question 80% of suspects waive their rights As long as child clearly understands rights don’t need parents present

If ask for parents –police have to get them Police can lie about polygraph test results

----------------11-25------------------------------

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Chapter 8 Police Interrogation: The 6th Amendment right to counsel Eliciting statements in the Absence of Counsel

Massiah v US -1964 Colson(Co-D) cooperated with police allowed Det Murphy to put radio in car then talked to D with

Murphy listening 4th Amend fails under 3rd party assumed risk that Colson working for police Ct allowed Murphy to testify to D self-incriminating statements No violation of 5th since was voluntary statement without will being overborne

No custodial interrogation- no Miranda issue Since D had already been indicted and adversiarial judicial proceeding had begun 6th right to counsel in

effect RULE : Police can’t deliberately elicit information from D after indictment in absence of counsel and use

against him at trial 6th violation- the admission at trial 6th is a personal right

So police might still do this to get D to implicate others in the crime Should keep investigation

White dissent Respect boundaries?- “sporting theory of justice” Gov sisn’t stop counsel from being there If Colson had recorded on own would have came in since police didn’t deliberately elicit

Brewer v Williams -1977 10yr old girl disappears from YMCA in Des Moines- D escapes from mental hospital staying at YMCA Implicated D witness saw him with bundle and legs showing- gets to Davenport calls lawyer- lawyer says

turn in turned in gets lawyer “Christian Burial Speech” on drive back- leads Det. To body Miranda- in custody no express ? so should they have known it would elicit incriminating information?

Yes was Mirandized 5 times – so look for waiver Here kept invoking rights- never waived

Can gov prove knowing voluntary waiver? No kept invoking – Edwards shield was up Only way could get around shield is if D initiated conversation and waived rights

Statements are out No fruits doctrine for Miranda so body comes in

Unless statements involuntary which is questionable here Unless exception 1. Attenuation of taint 2. Independent source 3. Inevitable discovery

6th Amendment claim D had initial appearance (initiation of adversarial judicial proceedings) Judicial proceedings- whether by way of formal charge, preliminary hearing, indictment, information,

or arraignment(aka initial appearance) Arrest, arrest with warrant not enough

Need to appear before magistrate for 6th to trigger Did deliberately elicit?

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Question of purpose (subjective intent of officer) Officer admitted yes

Does body come in ? There is no fruits doctrine to 6th so body out unless exception

Can waive this right, but here did not Problem n4 pg 707

Police would argue independent source – ministerial changed mind and/or attenuation Still Miranda violation

Michigan v Jackson - 1986 Miranda 6 times – 6 statements – initial appearance asked for counsel- 7th time waives rights another

statement When before judge did he raise a shield such that police cannot approach and ask for waiver of 6th?

Jackson shield- Yes shield is raised- 7th statement out can’t approach next morning for waiver HYPO Handout

Violation of 6th can’t be used at trial at all Patterson v Ill -1988

Been informed of indictment against him waived his Miranda rights while telling the police account of the crime

Miranda waiver can also be used to waive 6th As long as shield not up

Michigan v Harvey -1990 Jackson shield is prophylactic Statements taken in violation of Jackson shield may be used to impeach the D’s testimony

-------------------------12-2-------------------------------------- McNeil v Wisconsin -1991

Suspected committed armed robbery in West Allis, Wisconsin Got arrest warrant- go arrest him in Omaha- Miranda triggers- invoke right to silence- question stops Attorney appointed back in Wisconsin has prelim appearance- 6th Amend triggers Different officers visit ask questions of crime in Caledonia- Miranda waived D argument raised shield- should never have approached Ct says 6th amendment is offense specific- so won’t be able to use statements against West Allis charge but fine

for Caledonia D then tries to say when got counsel- raises 5th Amend Edwards shield Ct says 5th narrower only custodial interrogation broader – any crime

2 different rights Should have invoked when Mirandized 2 independent rights

Invoking one does not invoke other Texas v Cobb-2001

Police believed burglar and abduction Indicted for burglary Told father about murder who went to police Police Miranda question and he waived and confessed to murder

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D argues closely factual relation in offenses so 6th should have required counsel when questioned about murder Ct says test for same offense in 6th Amend context is the same as 5th double jeopardy

Same only when the elements of one offense are necessarily included in the elements of other offense Ex: joyriding lesser included of auto theft

6th Amend broader than 5th since don’t need custody narrower since offense specific Chapter 10- Eyewitness ID Procedures

Most Common cause of wrongful convictions is eyewitness misidentification People believe good at ID

Problems with ID Especially bad at ID people out of your race Once hit certain level of stress, perception actually goes down Weapons Focus- look more to what will harm you then person Confidence—has no correlation with accuracy Length of Event- People over represent the time saw person Witnesses try to please and want to be right So what should finders of fact do? How much of these problems do you explain to a jury? Constitution does very little to help this problem

US v Wade -1967 Armed robbery of bank with 2 strips of tape on side of face D arrested after indictment (6th triggers) Attorney appointed Line up with out D attorney Not testimonial so 5th Amend self-incrimination not implicated not going to his thoughts

D has to participate in line up Vocab

Show up - one person- Is this him? Photo array- different photos- Who is it? Photo Show Up - One photo- Is this him? Line Up - different people- Who is it?

Gilbert v Calif- 6th says…(decided at same time as Wade) Cannot have a line up outside D counsel admitted at trial Need to ensure no prejudice and assure a meaningful confrontation at trial Try not to allow suggestive actions by police

All required unless obtain intelligent waiver if didn’t request attorney at judicial proceeding Wade focused on in-ct ID

If out of ct ID done without counsel in-ct ID fine if shown by clear and convincing evidence that there was an independent source

Factors of Independent Source pg 745 to show independent source Prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-

lineup description and the D actual description, any ID prior to lineup of another person, the ID by picture of the D prior to the lineup, failure to ID the D on a prior occasion, and the lapse of time between the alleged act and the lineup ID

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White dissent Rule applies to any line up White wrong-doesn’t apply before ct proceeding

N7 pg 751- Kirby Doesn’t apply photo array

N9 pg 753- if D not there don’t need counsel If this makes sense should apply to any line up but doesn’t happen so White logical but doesn’t come up

Police do line up prior to adversary proceedings or after via photo array How should line ups be conducted ?

Double-blind – witness shouldn’t know who suspect is and fillers are and officers running line up shouldn’t know suspect from fillers

Instructions should be “suspect may or may not be here” One witness at a time Sequential line up- show one at a time- fewer mistaken ID’s since harder to pick which one looks most like

lesser effective ID’s since unsure maybe someone better coming Fillers- should look like description given by witness 9-10 lineup better than 5-6 – less chance of guessing who police put in

----------12-4----------------- Due Process- Eyewitness ID

Stovall v Denno -1967 Husband and wife stabbed Find D next day – wife in critical at hospital – so bring D for show up at her room she ID him D argues suggestive ID Ct says totality of circumstances ID comes in

TEST: Due Process would not allow ID in if unnecessarily suggestive Ct allowed here since her condition so critica she couldn’t come to police, need to do quickly

Show ups are always suggestive Lower cts allow in these situations and when crime just occurred(want to be able to keep looking for D)

Manson v Brathwate -1977 Drug buy at apt undercover cop and informant – cop describes seller to other officer – that officer finds

picture gives to undercover 2 days later sees picture says yes that’s him Suggestive- only one choice Why not an array? Prob should have since would be witness Pressure- don’t want to be wrong Ct says here for DP to get ID out would have to be unnecessarily suggestive and unreliable for out of ct ID In ct ID –If out of ct ID so unnecessarily suggestive substantially likely of irreparable misidentification

Use totality of circumstances BOP- D has to prove by preponderance was unnecessarily suggestive Then P has to prove reliable

Factors for reliability 1. Opportunity to view

Distance between witness D Time- How long

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Scene- day/night 2. Degree of attention

Casual observer vs officer Same race vs different races

3. Accuracy of the Description One given by witness pre-ID

4. Witness’ level of certainty Is this important? Confidence and certainty social science gas proven no relation Still used

5. Time between crime and confrontation Brief or longer Memory fades

Take these factors and weigh them with suggestiveness Here not enough to say substantial likelihood of unreliability Dissent- want per se if unnecessary suggestive should be out

But doesn’t lose truth seeking function excluding evidence that could convict guilty people Problem 2 pg 763

Suggestive yes height off, jacket, 4- unnecessarily- seems yes- why didn’t get others; no time constraint Substantially likelihood of misid? Factors reliability totality of circumstances Show-up-not as suggestive since witness picked him for closer ID out of lineup 2nd Line-up- suggestive- very only guy there 2 times- unnec. Yes unreliable-yes Threw out all ID’s out of ct Irreparable? Didn’t address whether could in-ct ID No 6th never went in adversary proceeding

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