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CRIMINAL PROCEDURE

JUDICIAL POVERTY: MONEY MAKES A DIFFERENCE.WHEN THE DEFENDANT HAS MORE RESOURCES THAN THE

GOVT. TRYING THE CASE THEN THE SYSTEM IS REVERSED (OJ CASE #1). MONEY THEN MAKES THE JUDICIAL

SYSTEM BIASED.

CAPITAL PUNISHMENT: INNOCENT PEOPLE ARE BEING KILLED, BUT HOW MANY IS TOO MANY. THE REASONS THE

WRONG PEOPLE ARE BEING CONVICTED ARE:

-WRONGFUL CONFESSION

-MISIDENTIFICATION BORE

-PERJURY (POLICEMAN

THE AMENDMENTS:

4TH: SEARCH &SEIZURE:The right of the people to be secure in their persons, houses, papers, and effects

against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

5TH: TRIAL & PUNISHMENT:No person shall be held to answer for a capital, or otherwise infamous crime

unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of law . . .

6TH: RIGHT TO SPEEDY TRIAL;CONFRONTATION OF WITNESSES: In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

THE RIGHT TO COUNSEL:

1. Legal Regulation of the Criminal Justice Process

a. Steps in Process

i. Pre-Arrest Investigationii. Arrest

iii. Booking

iv. Post-Arrest Investigation

v. Decision to Charge

vi. Filing the Complaint

vii.Magistrate Review of Arrest

viii.First Appearance

ix. Preliminary Hearing

x. Grand Jury Review

xi. Filing of the Indictment or Informationxii.Arraignment on the Information or Indictment

xiii.Pretrial Motions

xiv.Guilty Plea Negotiation and Acceptance

xv.The Trial

xvi.Sentencing

xvii.Appeals

xviii.Collateral Remedies

b. Diversity in Legal Regulation

i. 52 lawmaking jurisdictions

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ii. The Unifying role of federal constitutional regulation

iii. Natural divergence

iv. Describing common patterns

v. Models

vi. Procedural subsets

c. Diversity in Administration

i. Significance of discretion

ii. Discretion and diversity

2. Sources of Criminal Procedural Law

3. Ordered Liberty, Fundamental Fairness, Total Incorporation and

Selective Incorporation (p. 24)

Twining v New Jersey (p. 24) 1908

State ct prosecutor said jury may draw unfavorable inference from defs failure to testify.

5th amendment: right to silence, cannot be looked upon unfavorably, gov cant comment on failure to

testify or failure to talk when arrested.

ct held privi and imm clause does not incorporate bill of rights, and due process also does not require 5th

amendment apply to people in state courts, not immutable principle of justice.

Powell v Alabama (p. 25) 1932

Duncan v Louisiana (p. 25 and p. 1349) 1968Right to jury trial for serious criminal offensesMaximum punishment was 2 years in prison; no entitlement to a jury trial; misdemeanorSelective incorporation right to jury trial; Incorporate that which is fundamentalHELD: The 14A guarantees a right to a jury trial in all criminal cases which were they to be tried in a federal court would

come within the 6As guarantee.Rationale:years in prison is serious and not pettyDeep commitment of the Nation to a right of jury trial in serious criminal casesProvides protection from the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.

J. Blacks concurrenceStill believes in wholesale incorporation, but will accept selective incorporation

J. Fortass concurrenceNot incorporating all the rights, but just limiting this to a jury trial

J. Harlans dissentWhats the principle here?Lack of fundamental unfairness, so why go with selective incorporation? It is or it isnt.However, SI at least limits the run free, run wild risks of natural lawThe key compromise that still exists today

AlternativesFrankfurter vision of ordered libertyWholesale incorporation everything comes in, no matter the relative importanceSelective incorporationUse sort of natural law, but it didnt begin overnight; presume that the BOR reflect natural law; presumptively view the BORas within the accepted notion of justice; rebuttable presumption

a. The Problem of Bodily Extractions, another look at the due process and selective

incorporation approaches

i. Rochin v California (p. 31) 1952

ii. Police enforced stomach pumping to recover morphine capsules from Rochin. (Shocks the

Conscience test)

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1. Compared the extraction of stomach contents to the coerced confessions that offend

the communities sense of fair play and decency.

2. The government with permission now can gather those kind of those things

a. What do I mean about permission?

i. Ask the criminal

ii. Or get a warrant

1. Probable cause to believe your blood leads to evidence to a

crime

4. Due Process Right to Technology that Might Establish Ones Innocence? (p. 3supplement)

District Attorneys Office v Osborne (p. 3 supp) 2009

a. The limit is the 14th amendment

i. Breithaupt v. Abram (1957) Blood test taken from an unconscious driver in a manslaughter

case showed alcohol level

1. Blood samples under the care of a physician and procedure has become routine in

our everyday life.

a. Schmerber v. CA

i. Upheld that a police can take a blood sample from an injured person

against him objection

2. County of Sacramento v. Lewis: police killed motorcycle passenger during

motorcycle pursuit. Used shock of conscious test and found that this action did not

shock the conscious

3. Continued application of free standing due process

ii. Dominant source of constitutional regulation of the pre-trial stages of the process

iii. A major source of constitutional regulation of the trial

iv. Held unconstitutional under deductive reasoning instead of the consistency of common law

v. Look to particular case and resting

b. The federal courts supervisory power over the administration of federal criminal justice

i. McNabb v. U.S. (1943)

1. Quickly brought before a magistrate for prosecution24hrs.

2. Or you will explain why you didnt and if you dont have an explanation and

confession you get will be out, and will be excluded.

a. US v. Payner (1980) Money Laundering in Bahamas

i. Does not authorize a federal court to exclude evidence that did not

violate defendants Fourth Amendment rights

b. US v. Hasting (1983)

c. Guantanamo Bayi. How long to hold people under due process

ii. Government has lost every case so far

iii. (Supplement Case)

iv. Habeas Corpus: produce the body and justify detention

5. 6TH Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

by an impartial jury of the State and district wherein the crime shall have been committed, which district

shall have been previously ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his defense.

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a. Betts v. Brady (1942) Page 80

i. The court did not give the defendants lawyers and decided that they will evaluate these

cases on a case by case basis

b. Gideon v. Wainwright

i. In the case, the Supreme Court unanimously ruled that state courts are required under the

Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants

unable to afford their own attorneys or lawyers.

6.Recoupment Laws:

a.Potential for violations of equal protection

b.Recoupment (promise to pay counsel costs) may be a condition of probation, if likelihood of ability

to repay

7.The Right to Counsela.Fundamental Right: Comes from the 6th Amendment, and applies to the states via due process

clause of 14th in Gideon v. Wainwright.

i. Facts: The defendant was charged with the robbery of a poolroom. At trial he was denied

his request for appointed counsel, despite his indigence. He was convicted. The Supreme

Court held that Gideon had been denied a fair trial. The 6th Amendment, as incorporated in

the 14th amendment automatically entitles an indigent defendant to appointed counsel. At

least in felony counsel.

ii. Unqualified right to hire the counsel of your choice

b.Proceedings in Which the Right to Counsel Applies

i. Misdemeanors- In Argersinger v. Hamlin the supreme court extended the right to counsel to

all indigent misdemeanor defendants faced with a potential jail sentence.

ii. Right to counsel attaches only in cases where DEFENDANT faces possible prison

1. Scott. v. Illinois: HOWEVER, the right only reinforced if imprisonment results; EX

if DEFENDANT sentenced to probation, then no atty required, even though prison

was potential

2. Nichols v. US: THEN, an uncounseled conviction may be relied upon to enhancesentence under a later conviction, even if result is prison. Overrules Baldasar.

iii.Suspended jail sentences or probation: NEW DOCTRINE: indigent DEFENDAN

without counsel may not receive suspended jail sentence or probation. Alabama v. Shelton

c. Right to counsel when adversary judicial proceedings commence AND case is at a critical

stage:

i. Initial Appearance: right to counsel applies before magistrate1. White v. Maryland initial appearance is a critical stage of the proceedings, and

requires the appointment of counsel, if the defendant is compelled to make a

decision which may later be formally used against him.

a. Even if the defendant is not compelled at the initial appearance to makedecisions which may be formally used against him at trial, there is still a

possibility that he may in particular circumstances have a right to appointed

counsel.

ii. Preliminary Hearings: Coleman v. Alabama denial of right to counsel at the preliminary

hearing was a violation of the accuseds 6th amendments rights, because the hearing was a

critical stage of the prosecution.

iii. Arraignment: critical stage requiring counsel, but the denial of counsel is harmless error

as long as the defendant is not required to bind himself in anyway.

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iv. Sentencing: a delayed sentencing hearing was a critical stage of criminal proceedings

requiring the right of attorney

1. NOT at a line-up (before proceedings begin) 5th amendment right against self-

incrimination?

2. NOT at a photo array (even after proceedings begin, b/c not critical)

3. NOT when prime suspect

4. NOT by virtue of simple detention (administrative detention of a prisoner does not

activate; generally, the right is activated by forces that jeopardize the privilege

against self-incrimination)

8.EQUALIZING DEFENDANTS

a.Court Expenses/Processes

i. There can be no equal justice where the kind of trial a man gets depends on the money

he has.

ii. Griffin-Douglas Principle: The equal protection

1. Griffin: The S.C. held that a state must provide a free transcript of the trial

proceedings when submission of a transcript is a prerequisite to appeal.

a. Transcript necessary for appeal:

i. States are not required to provide all forms of appellate review, but a

free transcript is necessary to equal access when the do

ii. Free transcript is necessary in all cases, even non-felonies

2. Douglas: The Griffin principle of equal protection was held to require tha

counsel be appointed to assist indigent defendants in preparing the first appeal

from a conviction, at least where the first appeal is available as a matter of righ

in every convicted defendant.

a. Counsel on Appeal: If DEFENDANT has a direct appeal right, he has a

right to counsel for this appeal;

b. Ross v. Moffitt: The Supreme Court adopted a narrow view of Griffin-

Douglas in holding that an indigent does not have a right to appointedcounsel on his applications for discretionary review by the state supreme

court or on his petition for cert. by the us supreme court. Said that the

appeal is rejected or accepted based on likelihood that the original

determination of guilt was wrong.

i. a discretionary appeal, in particular one where the transcript and

brief were already filed in court below, NO right to attorney o

assistance with the app

ii. No right to appeal when discretionary appeal from plea of guilty.

c. DUE PROCESS & EQUAL PROTECTION are implicated when the right to

appeal exists but is not meaningful, as a result of an overly complex appealprocess

3. Expert Services: Fundamental fairness entitles indigent Defendants to adequate

opportunity to present claims fairly, thus state must provide basic tools of adequate

defense

a. Ake v. Oklahoma: two instances when the defendant has the right to a

psychiatrists assistance at state expense: (1) when he makes a preliminary

showing that his sanity is likely to be a significant factor in his defense, (2)

when in a capital sentencing proceeding, the state tries to justify the death

penalty by showing that the defendant is likely to remain dangerous.

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b. Due process requires access to psychiatric evaluation when:

i. Preliminary showing by DEFENDANT that sanity at time of offense

is likely to be a significant factor; or,

ii. In capital cases, presents evidence of future dangerousness.

4. Conflicting Obligations on Appellate Counsel:a. If counsel finds a case wholly frivolous, he should advise the court with a

request to withdraw along with a brief referring to anything in the record

that might arguably support an appeal

i. Anders brief must include discussion of why appeal is meritless

ii. States may adopt different appellate procedures, as long as right to

appellate counsel is preserved and indigent appeal is resolved in a

way that relates to the merits of the appeal

5. OTHERPROCEEDINGS

a. Probation Revocations No unqualified right to counsel:i. Factual inquiry as to whether violated terms = lawyer;

1. Case-by-case approach, usually no counsel needed unless

defendant present a timely and colorable claim that:

a. He did not commit the violation

b. There aremitigatin circumstances making revocation

inappropriate.

ii. Simple question of whether probation should be revoked = no

lawyer.

b. Summary Courts-Martial: No right to appointed counsel, even though

presiding can impose 30 days hard labor

c. Parenting Termination: No unqualified right state courts may determine

on case-by-case basis

d. Collateral Attack: No constitutional right to counsel in post-convictionproceedings

e. Juveniles: always have right to counsel

f. Military: minor no; major, yes

9.WAIVING THE RIGHT

a.Faretta v. California: DEFENDANT must be free to decide: DEFENDANT has a right to

proceed pro se

i. A criminal defendant in a state proceeding has a constitutional right to knowingly &

intelligently refuse the aid of an attorney.

ii. HOWEVER, no clear right on appeal (state interest in measuring integrity of convictions)

1. Martinez v. Court of Appeals of California, says that proceed pro se right is notabsolute and you cannot claim ineffective assistance of counsel if you waived

counsel

b. Stand-by counsel:NOT a violation of 6th right

i. Mckaskle v. Wiggins: Serves interest of orderly proceeding, b/c atty can educate

DEFENDANT as to protocol and routine obstacles

c.Knowing, Voluntary & Intelligent: Iowa v. Tovari. STANDARD: Judge must inform DEFENDANT of:

1. Nature of charges against him;

2. Right to counsel regarding plea; AND,

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3. Range of punishments if pleads guilty.

a. Judge does NOT need to foresee and warn of ALL future consequences

(such as three-strikes on first offense)

b. Collateral attack: if defendant wants to attack the fact that he waived

counsel he must prove that he was unaware of one of the above things.

d.Required Level of Competency:i. No requirement of different/higher standard of competency than that for trial standing

ii. sufficient present ability to consult with a lawyer with a reasonable degree of rational

understanding

ii. has a rational as well as functional understanding of the proceedings against him

e.Can forfeit counsel if defendant assaults counsel or assures judge he will retain counsel and doesnt

in a reasonable amount of time.

10.CHOOSING COUNSEL

a.Appointed: Indigent DEFENDANT has NO right to choose his counseli. NO 6th right to meaningful relationship

b.Retained: Courts cannot disqualify chosen counsel without a good reason

i. Denial in violation of 6th is a structural error (thus, automatic reversal)

ii. The right does NOT cover the use of otherwise forfeitable funds to hire atty

11.DECISION-MAKING

a.Defendants Decisions: Fundamental rights:i. DEFENDANT must decide: plead guilty, waive right to jury trial, waive right to be present

at trial, testify on his own behalf, or forgo an appeal

ii. No right to compel counsel to raise every nonfrivolous issue

iii. Counsel not required to file notice of appeal unless specifically directed to

b.Counsels Decisions: Superior ability of trained counsel in assessing strategy:

i. COUNSEL has ultimate authority in deciding: barring prosecution form using

unconstitutionally barred evidence; obtaining a dismissal; wearing civilian rather than jail

clothes; striking an improper jury instruction, etc.ii. Strategic decisions rest within counsels professional judgment and include the methods to

utilize for a vigorous and effective advocacy

iii. Appellate counsel may decide which nonfrivolous issues to raise, as a strategic decision

iv. Nixon v. Florida: Strategy pursued without DEFENDANT approval is never per s

ineffective; even though counsel conceded DEFENDANTs guilt to the jury, this was part

of a trial strategy aimed at sentencing mitigation.

v. Roe v. Flores-Ortega: Counsels failure to file an appeal as of right when defendant had

requested one would constitute per se ineffective assistance of counsel. Since there was a

guilty plea entered here, it could signal to the client that they wanted the judicia

proceeding to be over.12.EFFECTIVE ASSISTANCE

a.6th Amendment:i. Constitutional right to effective assistance of counsel; thus, conviction subject to reversal

if incompetence negates effectiveness

ii. On appeal, right to effective ONLY ifrightto appeal; thus, no right on discretionary

iii. Courts must apply one standard for both retained and appointed counsel

b.Strickland v. Washington Two-Part Test:i. Deficient performance of counsel such that it did not qualify as counsel; AND,

ii. The deficient performance prejudiced the defense.

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1. Did the lawyers behavior fall below the expected behavior of the average lawyer

in the jurisdiction?

iii. The Test, Re-Stated: Performance must be deficient, and must have prejudiced

Defendant so much as to have deprived of right to fair trial

1. STANDARD: reasonably competent attorney

2. Venue: This seems to be raised as a habeas issue in many cases

c.Deficient Performance:i. Perjury: Refuse to cooperate with perjury = NOT ineffective

1. Nix v. Whiteside: counsel told defendant that perjurying himself would lead

counsel to withdraw, to require counsel to advise the trial court of the perjury, and

that counsel would probably be allowed to impeach that testimony.

ii. Suppression: Failure to file timely motion re evidence obtained in violation of 4th

amendment. Court said that was a startling failure of professional responsibility.

1. Kimmelman v. Morrison: Did not ask for pre-trial discovery

iii. Strategic Decisions:

1. Yaraborough v. Gentry: presented a federal habeas corpus challenge to alleged

ineffective assistance of counsel due to closing argument

2. State court determination as to performance may only be reversed if objectively

unreasonable.

3. If a state court rejects an ineffective-assistance claim, a federal court may reverse

this only if the decision was "objectively unreasonable." The right to effective

assistance of counsel "is denied when a defense attorney's performance falls

below an objective standard of reasonableness." While Gentry's lawyer "was no

Aristotle," the federal judiciary must respect the state court's reasonable

conclusion that the lawyer was sufficient.

iii. State v. Davis: Remarks about racial prejudice in closing argument were

objectively unreasonable. Maybe not the best lawyer for a black guy?

i. To a white jury I do not like black people but urge you to not letrace become a factor.

iv. Duty to Investigate: Rompilla v. Beard

1. In capital case, must investigate mitigating factors; however, decision to use

would be strategic.

iii. Family told counsel that they didnt know why defendant would have

committed the crime (they thought he was innocent).

2. Failure to take standard investigative step (in capital case) wasper se deficient

3. Failure to examine prior conviction file (where mitigating evidence would have

been found) was deficient.

d.Prejudice:i. Defining Prejudice: there is a reasonable probability that but for counsels

unprofessional errors, the result of the proceeding would have been different.

ii. Timely Exclusion: DEFENDANT should be able to use federal habeas to repair failure

to timely request exclusion. (Kimmelman)

1. Illegally seized evidence is often highly reliable and probative, and thus deserves

heightened attention

iii. Evidence of youth, inexperience and insufficient time did not meet standard, where no

showing ofactualprejudice

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1. HOWEVER: a sufficiently atrocious performance by counsel may warrant

presumption of prejudice . . .

2. . . . sleeping through trial

3. . . . failure at sentencing to call witnesses, provide mitigating evidence or make

closing argument

iv. Exceptions: Strickland analysis not the best choice if:1. Trial court prevented counsel from utilizing certain adversarial procedures; or,

2. Counsel burdened by an actual conflict of interest.

v. Institutional Defects bypass deficiency andprejudice:

1. Public defender with too-heavy caseload and insufficient resources to match could

not provide effective assistance

2. Attorney that allocates resources to clients passing polygraph = ineffective

3. Least experienced attys should not be assigned to capital cases

e.CONFLICT OF INTEREST: action taken on behalf of the defendant would work against an

obligation the attorney owes to another person or the attorneys self interest.

i. Examples:

1. Joint representation of codefendants who will be tried separately;

2. Defense counsel has previously represented or is currently representing in another

matter the victim of the alleged offense

ii. Trial Courts Obligation: Upon Motion of DEFENDANT (Holloway v. Arkansas):

1. Failure to investigate the risk of conflict upon counsels statement of conflict

denies effective assistance and violates the 6th amendment. Counsel also

requested separate counsel for defendants.

2. Sua Sponte: Unless court knows or reasonably should know that a particular

conflict exists, no duty to initiate inquiry

iii. If the possibility of conflict is reasonably apparent to the court, it has duty

to inquire

iv. If the defendants have been jointly charged or their trials have been joinedtogether, the court should inquire into a conflict of interest.

3. Scope of the inquiry:should not be perfunctory but should include probing and

specific questions.

iii. Post-Conviction Review: STANDARD (Mickens v. Taylor):1. Presence of actual conflict; and,

2. Adverse impact on counsels performance.

iii. Reasonable probability that but for counsels unprofessional errors, the

result of the proceeding would have been different.

iv. Examples:

i. Burger v. Kemp: Even if law partners are considered one attyshared representation is not aper se violation.

1. Two defendants, tow lawyers from the same firm. Each

defendant confesses but admits majority of culpability to

the other defendant. One of the lawyers prepares both

mens appellate briefs, but only argues lesser culpability in

one brief. Not per se violation. Court presumes prejudice

only if the defendant demonstrates that counsel actively

represented conflicting interests and that an actually

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conflict of interest adversely affected his lawyers

performance.

ii. Certainflagrantconflicts, such as atty engaging in clients crimina

acts, raise presumption of adverse impact (U.S. v. Fulton).

1. When attorney has engaged in the defendants crimes.

iv. Waiver: 6th right allows DEFENDANT to waive right to conflict-free counsel, in favor of

choice of counsel Wheat v. US

1. So long as there is a reasonable possibility of a conflict, the court may prohibit the

same lawyer from representing two or more defendants, without violating the 6 th

amendment rights of the defendant who loses access to his first choice.

ARREST,SEARCH &SEIZURE:

1. Exclusionary Rule

a. All evidence obtained by searches and seizures, in violation of the Constitution, is (per 4th/15th)

inadmissible in state court and federal court (Mapp v. Ohio).

b. HOWEVER: evidence obtained by police in reasonable reliance on a search warrant issued by a

neutral magistrate will still be admitted. (US v. Leon)

i. As long as the person writing the affidavit wrote it in good faith, the decision is that of the

magistrate and the exclusionary rule serves no useful function. The officers enforcing the

warrant must be able to rely on the decision of the magistrate.

c. Principles To Be Protected:

i. Exclusionary rule did NOT require suppression of evidence obtained in a badly executed

knock-and-announce

ii. Purpose of exclusionary rule must be considered since the purposes of the knock-and-

announce rule do not connect to the evidence seizures that result, no constitutional interest

is served by suppression

d.Reasonable Reliance: On the warrant itself . . .

i. Failure to name the items to be seized with particularity, if reasonably relied upon, may

still be admissible because the officer should not be held to not believe a judge who saysa warrant is good.

1. HOWEVER: where the warrant is so obviously invalid that a reasonable officer

should have known it was invalid.

ii. If police arrested or seized property on invalid search warrant, then defendant files and

1983, but the problem becomes what is it worth?

e. Knock and Announce Rule when the police enter a private dwelling to execute a search warrant

they must knock and announce.

i. They must knock first, announce that they are the police, and wait until the person answers

the door.

ii. Hudson v. Michigan: even if the defendant can show that certain evidence would not havebeen acquired by the police but for their failure to wait for the door ti be answered, the

evidence will still be admissible against him.

f.On statutes and regulations . . .i. objectively reasonable reliance on statutes = admissible

ii. Suppression is NOT a remedy for simple illegality a violation of IRS regs

g.Pre-Trial & Post-Conviction:

i. Grand jury witness may not refuse questions based on unlawfully-obtained evidence

ii. Exclusionary rule does NOT apply during a parole revocation hearing

h.Civil & Quasi-Criminal:

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i. Exclusionary rule DOES apply during a forfeiture hearing, which is quasi-criminal

especially if based on alleged criminal activity

ii. Exclusionary rule does NOT apply during civil case brought by another sovereign

iii. Exclusionary rule does NOT apply during civil deportation hearings

i.Third Party Conduct:

i. Private persons: police may view and inspect what a private party has already unlawfully

searched/seized

ii. Non-police govt employees: mistake by a court employee is not the evil that exclusion

protects against thus, reliance on warrant (mistakenly allowed to stand) was reasonable

here

iii. Foreign officials: deported alien felons who re-enter U.S. are not covered by 4th; thus

evidence from country of origin, though illegally obtained by authorities there, is

admissible here???

2.PROTECTED INTERESTSa.Katz v. United States: established that the 4th protects people, not places, from unreasonable

intrusion

i. STANDARD: Reasonable expectation of privacy.

1. So long as an individual can justifiably expect that his conversation would remain

private, his/her conversation is protected from "unreasonable search and seizure" by

the Fourth Amendment.

ii. HOWEVER: something about nexus of property being tied to the crime

iii. AND: warrants may be executed against innocent 3rd parties

b.People & Places:

i. Public Places:

1. Individual on a pay phone has similar expectation of privacy as user on phone

number

2. Open fields are still probably fair game

3. Distance surveillance of a greenhouse OKii. Private Areas of Public Places:

1. Observation through an air shaft into restroom stall NOT okay

2. Prison cell = no expectation of privacy (Hudson v. Palmer)

iii. Chattels:

1. Vehicles:

i. Paint sample taken from a car, after car was already seized, was NOT a

search (Caldwell v. Lewis)

ii. Looking at a VIN or other thing inside car is not a search; HOWEVER

reaching in to clear obstacle to officers view = a search (New York v. Class)

2. Bags & Briefcases: Manipulation of luggage was 4th

violation, that by feeling hisluggage, the police searched it on the bus and that kind of inspection is more

intrusive then a purely visual inspection.

iv. Restrictions/Exceptions:1. Hearing something nearby is NOT a search

2. Thermal imaging of a residence while the police may use ordinary, non-intrusive

sense enhancement, a device not available to the public is a 4 th search, and requires

a warrant (Kyllo v. US).

3. Aerial or long-distance photography are not intrusive, b/c they do not reveal

anything that could not otherwise be seen.

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v. Canine Sniff: of luggage in a public space was NOT a search (US v. Place)

1. Sniff search of vehicle during traffic stop was NOT a search (Illinois v. Caballes)

vi. Devices: Police may use electronic tracking device if placed in goods sold during a sting

operation (US v. Knotts). Police can use any device that can give them information that

they can get without the device.

1. If installed with consent of owner, no privacy infringement.

2. However, in some circumstances (???), monitoring the beeper will be an

unreasonable search, b/c it reveals information that could not have been revealed

through visual surveillance.

vii.Computers: Person who transmits e-mail enjoys reasonable expectation of privacy thus

warrant required (or help from recipient)

c.Documents/Records:Andresen v. Maryland

i. Business records 5th may be employed to prevent accused from cooperating and turning

evidence over, but will not prevent a lawful search for his records

1. which held that search of petitioner's offices for business records, their seizure, and

subsequent introduction into evidence did not offend the Fifth Amendment's

proscription that [n]o person shall be compelled in any criminal case to be a

witness against himself. Although the records seized contained statements that

petitioner voluntarily had committed to writing, he was never required to say

anything.

ii. Records may be seized even though the holder is an innocent third party

1. NOTE: if documents cannot be taken without examining the contents of unseizable

documents, officers should seize the lot and wait for proper procedure to be

determined

2. Colorado court held (2002) that an innocent, third-party bookstore must get hearing

before forced to turn over all purchasing records; PATRIOT of 2001 permitted such

seizures on the word of an agent; however, PATRIOT re-auth created a judicial

review and more procedural protection before the seizure may take place.3. PROBABLE CAUSE

a.judicial guideline set down by the U.S. Supreme Court for evaluating the validity of a search warrant

based on information provided by a confidential informant or an anonymous tip. The Supreme

Court abandoned the Aguilar-Spinelli test in Illinois v. Gates, 462 U.S. 213 (1983), in favor of a

rule that evaluates the reliability of the information under the "totality of the circumstances."

However, Massachusetts, New York, Tennessee, and Washington have retained theAguilar-Spinell

test, based on their own state constitutions.The two prongs of the test are that, when law enforcement seeks a search warrant and a magistrate signs a warrant

The magistrate must be informed of the reasons to support the conclusion that such an informant is reliableand credible.

The magistrate must be informed of some of the underlying circumstances relied on by the personproviding the information. [1]

This information provided to a magistrate will allow the magistrate to make an independentevaluation of theprobable cause that a crime has been or will be committed.

police must state sufficient facts of which they have actual knowledge or information from a reliable source

b.Probable cause to arrest:

i. must have reasonable grounds to believe that a crime has been committed by the person to

be arrested

1. finding contraband in an automobile, there is probable cause to arrest its occupants,

regardless of their proximity from the contraband

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2. information/orders received through official channels can NOT create probable

cause, where the issuing authority lacked probable cause originally

c.Probable cause to search:i. must have reasonable grounds to believe that the items sought are connected with criminal

activity and that they items will befound in the place to be searched

1. Warranted Searches:

i. the totality of the circumstances should be considered to determine whether

there is a fair probability that contraband will be found in a particular place

i. an informers veracity, reliability, and basis of knowledge are all

highly relevant, but not exclusive or mandatory, factors in evaluating

the totality of the circumstances (Massachusetts v. Upton).

ii. deference to magistrates (support the magistrates determination that

there was a fair probability that contraband or evidence of crime

would be found in Defendants motor home)

ii. anticipatory searches are okay (warrant authorized for later search after

triggering event) US v. Grubb:

i. Anticipatory searches are constitutional and do not need to describe

that condition on their face. In this particular decision, which arose

from a federal child pornography prosecution, the Court ruled that a

warrant that was predicated on the undercover delivery of a

videotape to the defendant's home, but did not state this on its face,

was properly issued and executed because it described the place to

be searched and the objects to be seized, and the search was

conducted after the delivery was made.

1. search is subject to challenge if a false statement was

necessary to the probable cause determination, but

DEFENDANT must prove untrue

2. Warrantless Searches:i. Probable cause is also required for warrantless

i. Maryland v. Pringle: (p. 5 table contents)

4.SEARCH WARRANTSa.ARREST WARRANT: clerk may issue, b/c judicial review occurs quickly upon arrest

b.SEARCH WARRANT: must be prepared by trained lawyer, and describe with particularity things

and place to be searched, so that issuer can evaluate probable cause

i. Authority: Cannot be issued by investigator or prosecutor must be issued by a neutral

and detached magistrate

1. Magistrate cannot be paid by the warrant or offered other incentives

ii. Particulars: Sufficiency of the description: officer with a search warrant can, withreasonable effort, ascertain and identify the place intended,

iii. Steele v. US.

i. If one can reasonably tell from outside a structure that it contains multiple

residences, warrant must describe the particular one to be searched

(standard: objectively reasonable) State v. Blackburn

ii. Particularity of description must be incorporated in the warrant, not in

supporting affidavit, Groh v. Ramirez

iv. Execution:1. Timing: Must be executed promptly (usually 10 days at most)

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i. Generally, should be executed during the day, unless specified in warrant

ii. Night search only requires showing that property to be seized is likely to be

on premises at that time

iii. Absence of occupant is not a factor, U.S. v. Gervato

2. Entry: In order to justify entry without knock and announce, police must have

reasonable suspicion that to do so would be dangerous, futile or inhibit

investigation,

i. However, the reasonable suspicion test is NOT affected by unavoidable

destruction of property as part of entry

ii. Police may then break in IF occupants failure to let them in fairly suggests

refusal (consider: time to get to door, nature of establishment)

3. Safety: If warrant does not permit searches of persons found on premises, then treat

these as warrantless

i. Detention while waiting for warrant is okay

ii. Okay to detain and restrain persons on premises for officer safety Michigan

v. Summers

4. Other Concerns:

i. PLAIN VIEW: While executing, anything in plain sight is fair game

Anything that is viewable in the area where the police have a right to be.

ii. COMPUTERS: may be treated as a container, so warrant must call for

containers NOT SURE, State v. Evers.

iii. Presence of media during search unconstitutional, as it is an intrusion tha

does not facilitate the search

iv. Delivery of warrant to property holder is generally a creature of state law

but must be constitutionally done

v. The search ends when warranted items are found

5.WARRANTLESS ARREST &SEARCH

a.Arrest Standard: Arrest warrants are seldom used and are generally held to not be constitutionallyrequired. This is true even when the police have sufficient advance notice so that procurement of a

warrant would not jeopardize the arrest. US v. Watson

i. Misdemeanor: arrest if officer observes the commission of the crime. Atwater v. City of

Lago Vista

ii. Felony: arrest if probable cause

iii. PRETEXTUAL STOP: not a problem, esp. when breaking traffic law

b.Deadly Force: ONLY if probable cause to believe that the suspect posses a significant threat of

death or injury to the officers or others. Tennessee v. Garner

i. In all questions of force, ask whether an officers actions are objectively reasonable without

regard to intent or motivation. Graham v. Connor1. Where the police do have reason to believe that the suspect is dangerous to

themselves or others, they are entitled to use deadly force if they reasonable believe

that lesser force will not suffice. And at least where the suspect is fleeing by

driving recklessly, the police are not requires to call of the chase even if this would

reduce the danger. Scott v. Harris

c.Magisterial Review: Must occur within 48 hours (except in genuine emergency) Gerstein v. Pugh

i. Once a suspect is in custody, however, there is no further justification for dispensing with a

magistrates neutral judgment.

d.Post-Arrest Searches:

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i. Always permissible to search an individual during arrest, even if arrest is for an offense

which bears no jail time possibility.

1. A police officer pulled over and arresting Robinson for operating an automobile

without a valid permit. The officer then frisked Robinson and discovered a

crumpled cigarette package containing fourteen vials of heroin in his pocket. US v

Robinson

2.When returning to police facility, okay to search Ds entire person and seized

property (protect from theft and discover dangers)

i. Once an accused has been lawfully arrested and is in custody, the effects in

his possession at the place of detention that were subject to search at the

time and place of arrest may lawfully be searched and seized without a

warrant even after a substantial time lapse between the arrest and later

administrative processing, on the one hand, and the taking of the property

for use as evidence, on the other. US v. Edwards

ii. Delay in full search okay, as police were waiting for substitute clothing

ii. BLOOD TEST: permitted, b/c interest in preserving evidence, alcohol diminishes in blood

quickly, outweighed intrusion. Winston v. Lee

iii. SURGERY: to retrieve evidence swallowed was NOT reasonable search. Should be

conducted on a case by case basis, in which the individuals interests in privacy and

security are weighed against societys interests in conducting the procedure. Winston v. Lee

iv. Full search of vehicle was NOT okay, where no custodial arrest. Officer could has done a

custodial arrest but chose to issue a citation. Then chose to search the car, where the office

found drugs. The concerns for searching after an arrest do not apply.

1. No threat to officer safety following a traffic citation

2. No need preserve and discover evidence when there is no likelihood that speeding

will continue.

v. Limited search of person (fingernail scrapings) okay, where probable cause to arrest exists

but no arrest made. Suspect voluntarily came to police station to answer questions abouwifes strangulation and had what appeared to be blood under his finger nails. Is

constitutional. Cupp v. Murphy

e.PREMISES SEARCH

i. Search incident to a lawful arrest - search in an arrestee's home beyond arrestee's

person and the area within his immediate control is unreasonable. Chimel

1. The Court reasoned that searches "incident to arrest" are limited to the area within

the immediate control of the suspect. While police could reasonably search and

seize evidence on or around the arrestee's person, they were prohibited from

rummaging through the entire house without a search warrant. The Court

emphasized the importance of warrants and probable cause as necessary bulwarksagainst government abuse. Chimel v. California

i. a search is incident to arrest only if it is substantially contemporaneous with

the arrest and is confined to the immediate vicinity of the arrest

ii. where there are no exigent circumstances, it is unconstitutional to search a

home without warrant during arrest

iii. thorizes arrest in home or public does NOT authorize entry into third partys

home

2. Officer Safety:

i. Protective Sweep: MUST be contemporaneous to arrest

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i. May extend only to cursory inspection of where person may be

found, and ONLY as long as necessary to dispel reasonable suspicion

of danger. Maryland v. Buie

ii. Naked Suspect: Okay to allow suspect to get dressed, and inspect drawer

with clothes for any dangers. Giacalone v. Lucas

iii. Outside: Arrest infrontof house did not authorize cops to take suspect back

inside and then search house.

i. Even ifChimel, holding that the warrantless search of a house can be

justified as incident to a lawful arrest only if confined to the area

within the arrestee's reach. Vale v. Louisiana

3. Secure Evidence:

i. Limits: Officer who moved stereo equipment, without probable cause, to

get serial numbers, while there on unrelated matter, was conducting a new

unreasonable search, outside the bounds of the arrest.Arizona v. Hicks

ii. Gravity of the arrest offense matters arresting in home for the sole purpose

of securing BAC results was unjustified. Waiting inside house with

defendants for

iii. Presence: Officer waited 19 hours in apartment to secure for warrant =

OKAY

iv. Okay to detain suspect outside residence, while waiting on warrant to search

within, to prevent suspect from destroying evidence (for a reasonable

amount of time).

i. warrantless entry into a private home in order to make a felony

arrest. The Court struck down a New York statute providing for such

warrantless entries because the Fourth Amendment draws a firm line

at the entrance to the house. Absent exigent circumstances, that

threshold may not be reasonably crossed without a warrant. The

court, however, did specify that an arrest warrant (as opposed to asearch warrant) would have sufficed for entry into the suspect's

residence if there had been reason to believe that the suspect was

within the home.Payton v. New York

4.VEHICLES &CONTAINERS

f. Probable Cause:

i. inherent mobility of autos creates exigent circumstance; less expectation of privacy

ii. auto may be subject to search without warrant solely on basis of probable cause to believe

that vehicle contains something subject to seizure

iii. includes motor homes CALIFORNIA v. CARNEY

1. The decision established that motor mobile homes may not receive the heightenedprotection from warrantless police searches to which stationary homes are entitled

Instead, motor mobile homes are more akin to automobiles, which police may

search without a warrant and with probable cause.

iv. Auto itself may be seized upon probable cause that it is itself contraband, especially

(forfeiture).Florida v. White

v. No probable cause needed to inspect packages/containers coming into country; then, i

contraband, okay to re-close and deliver, then search again

vi. Contemporaneous to Arrest: Okay to search passenger compartment whenever arresting

even though suspect is outside car.

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1. "Once an officer determines there is probable cause to make an arrest, it is

reasonable to allow officers to ensure their safety and to preserve evidence by

searching the entire passenger compartment." Thornton v. US

6. Containers:

a. Independent Probable Cause:

i. police can search a container, in a vehicle, based on probable cause that attaches to the

container, even if there is none for the vehicle as a whole.

1. the "automobile exception" to the Fourth Amendment's general search-warran

requirement is broad enough to cover a situation where the police only have

probable cause to believe there is evidence in a specific movable container within

the car. The Court noted that the warrant requirement previously had depended on a

"curious line between the search of an automobile that coincidentally turns up a

container and the search of a container that coincidentally turns up in an

automobile." In place of that uncertain distinction, the Court adopted a single rule:

"The police may search an automobile and the containers within it where they have

probable cause to believe contraband or evidence is contained. California v

Acevedo

ii. As Part of Vehicle Search: If probable cause to search vehicle, containers therein are

subject to be part of that search. Wyoming v. Houghton

1. Inventory:

i. Routine Searches: as part of routine impound procedure, always okay to

inventory

i. "Once an officer determines there is probable cause to make an

arrest, it is reasonable to allow officers to ensure their safety and to

preserve evidence by searching the entire passenger compartment."

Colorado v. Bertine

ii. if there is no inventory policy, then search of containers probably reaches

beyond (search of locked container, when no policy, was unreasonable)Florida v. Wells

7. THE "TERRY STOP"Terry v. Ohio

a. Basis: officer may conduct a Terry stop only when the officer observes unusual conduct that leads

him to reasonable suspicion, in light of his experience as a police officer, that criminal activity is

afoot and that person with whom he is dealing may be armed and dangerous

b. Standard for the Stop:

i. Assessment based on totality of circumstances + yields a particularized suspicion that this

individual is engaged in wrongdoing.

ii. ALSO: if a lawful stop already, and police have articulable suspicion that suspect may

gain control of weapon, further searching is reasonable1. Examples:

i. Conversations with addicts do not indicate criminal behavior

ii. Anonymous tip with vague description and no independent confirmation did

not have indicia of reliability

iii. Profiling is not per se violative totality of circumstances gave rise to

reasonable suspicion of criminal activity

iv. Police bulletin or other third party official information is an acceptable basis

for a Terry Stop

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4. Finding Contraband:

i. Use of drug detection dog is NOT a search, because the dog ONLY alerts on

illegal substances (thus, no privacy intrusion). Illinois v. Caballes

ii. Temporary seizure of unattached personal effects is okay, but ONLY IF the

govtl interest outweighs the minimal intrusion (90-minute luggage

detention was unreasonable). US v. Place

iii. THERE IS NO PLAIN FEEL RULE: the Terry stop is for officer safety only

finding a bag of drugs does not function as probable cause for the next.

iv. ADMINISTRATIVE &REGULATORY

1. Based on the Search Objective

i. Safety Searches: WARRANT REQUIRED to search for administrative

violations (except in emergency). Camara v. Municipal Court

ii. Border Searches: NO WARRANT NEEDED for incoming packages and

containers (the border search exception). US v. Ramsey

iii. Vehicle Checkpoints: Roving patrol may make random stops at intl border

but not inside.

i. A simple checkpoint may be okay, if uniform and slight, but an

extended detention and/or search requires individualized suspicion

beyond the Terry rationale. Almeida-Sanchez v. US

iv. Special Law Enforcement Need: Only a valid basis if sufficiently

different and divorced from general law enforcement objects

i. General canine checkpoints for illegal drugs violation of 4th

because purpose was to detect ordinary criminal acts

ii. Secret blood-testing of pregnant mothers suspected of drug use

supposedly to coerce into treatment, but still general law

enforcement purpose of arrest/prosecute

v. Based on the Individual:

i. Students: Balance between students expectation of privacy anschools need to function. Okay to search purse, after individualized,

particularized allegation by teacher.

1. Okay to require drug testing for almost any extracurricular

activity, but NOT FOR GENERAL POPULATION; upheld

for random athletic testing and random extracurr. Testing.

ii. Parollees/Probationers: System presents special needs beyond

ordinary law enforcement concerns, and justifies lower standards

1. BALANCING TEST: examine totality of circumstances and

determine reasonableness by balancing degree to which

intrudes upon individuals privacy and degree to whichnecessary for legitimate government interests. Samson v

California

vi. Employees of Critical Industries:

i. Okay to drug test employees who interdict illegal drugs or

otherwise carry firearms

ii. Okay to blood/breath/urine test employees after train accident or

certain rule violations

v. CONSENT: When the subject of a search is not in custody and the State attempts to justify a

search on the basis of his consent, the 4th and 14th Amendments require that it demonstrate

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that the consent was in fact voluntarily given, and not the result of duress or coercion

express or implied. Schneckloth v. Bustamonte

1. The Nature of Consent (Factors):

i. Voluntariness is determined by

t o t a l i t y o f c i r c u m st a n c e s

including:

ii. Implied or actual threat of incarceration;1. Even threat of parole violation, US v. Knight.

iii. Mental or emotional state of suspect (and degree to which influenced

by injury, intox, circumstance);

1. US v. Elrod shows where defendant is in emergency room

with dislocated hip, he cant give proper consent.

iv. Concurrent denials of guilt (which implies that consent may have

been involuntary, b/c suspect knew would be found out);Higgins v

US

v. STANDARD: objective reasonableness (not perception or intent of

suspect or officer).

ii. Consent is invalidated by:

i. Claim by officer that he already has a search warrant (however

statement that he will seekdoes not invalidate);

ii. Prior illegal police action (fruit of poisonous);

iii. Right to counsel asserted (consent request should be directed through

counsel).

iii. NOT a factor:

i. 5th warning (is notrequired, b/c request for search is unlikely to elici

incrim statements);

ii. Deception (undercover agents okay).

2. Third-Party Consent:i. Test is not whether actual authority exists, but rather whether police had

reasonable belief that party had authority to consent (assertions + knowledge

+ key = reasonable)

i. X-girlfriend who doesnt live there anymore, but doesnt mention

that and continually calls the apartment her apartment.

ii. Reasonableness," not consent, is the touchstone of Fourth

Amendment jurisprudence; the Constitution only prohibits

"unreasonable" searches and seizures. Therefore, the constitutional

validity of a police determination of consent to enter is not judged by

whether the police were correct in their assessment, but by whether based on the facts available at the moment, it was reasonable to

conclude that the consenting party had authority over the premises

Illinois v. Rodriguez

ii. Sources of Authority:

i. Spouse can reasonably consent to any shared marital property

HOWEVER: other spouse can block consent if present. US v. Duran

ii. Parent can consent to search of live-in minor childs quarters, and

sometimes live-in adult child

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iii. Landlord may consent to common areas, but NOT to tenants

privately controlled premises.

iv. Employer may consent except as limited by employees privacy

expectation.

1. Reasonableness of employees expectation of privacy.

v. Employee may consent to business within the scope of authority

iii. Limitations:

i. Antagonism where motive of wifes consent is clearly one of spite

she has no right to waive her husbands protection agains

unreasonable searches and seizures. State v. Gonzalez-Valle

ii. Police have knowledge of expressed denial of consent. Georgia v

Randolph

iii. Suspect is present and denies consent

iv. Suspect has exclusive control of specific area within the mutual

larger area

ENTRAPMENT:

1.THE BASIC TEST

a.1973: Entrapment occurs when law enforcement officers instigate a criminal act by persons otherwise

innocent in order to lure them to its commission and to punish them; the focus is on predisposition or

intent of DEFENDANT to commit the crime.

b.The govt. may not originate a criminal design, implant in an innocent persons mind the disposition to

commit a criminal act, and then induce the commission of the crime so that the govt. may prosecute.

i. To be entitled to the entrapment defense the defendant must show that the govt.s conduct

induced the defendant to commit the crime.

1. Conflicting theories:

i. Courts disagree on whether to be tried by court or jury, whether entrapment

defense is mutually exclusive with denial of act, to what extent

DEFENDANT must prove, etc.ii. 1st Circuit: when the govts quest for conviction leads to the apprehension of

an otherwise law-abiding citizen who, if left to his own devices, likely never

would have run afoul of the law, the courts should intervene.

iii. 5th Circuit: the govt failed to prove that the preacher was likely to engage in

money laundering absent the govts conduct.

ii. The govt may not originate a criminal design, give an innocent person the disposition to

commit a criminal act, and then induce commission of the crime in order to prosecute.

1. Outrageousness: Unless the conduct reaches demonstrable level of

outrageousness, the govt is not required to have reasonable suspicion of the

wrongdoing; agents simply provide an opportunity for Defendant to commit a crime.2. Middle Men: when government agents have persuaded a middle man to induce a

particular target selected by the agents to commit a crime, the courts have generally

extended the entrapment defense to the ultimate targets

3. Legal conduct and law changes: Prior lawful acts may NOT be used to prove

predisposition.Jacobson v. US:

i. Man read child pornographic magazine that was once legal, but became

illegal. Govt. arrested and tried to shoe predisposition by saying that he

ordered it when it was legal.

INTERROGATION &CONFESSION:

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1.MIRANDA

a.In general, any statement made by a suspect as the result of a custodial interrogation is

compelled, and thus violates the Fifth Amendment right against self-incrimination, unless the

government proves the police provided adequate procedural safeguards (effective to secure the

privilege against self-incrimination).Miranda v. Arizona No. 759

i. Miranda warnings cannot be repealed by Congress because it is a Constitutional

decision, over which the court has the ultimate authority.Dickerson v. US

ii. Public Safety Exception: may question without recitation if reasonably prompted to do so by

concern for public safety (the gun is over there = admissible).

1. Since the police officer's request for the location of the gun was prompted by an

immediate interest in assuring that it did not injure an innocent bystander or fall into

the hands of a potential accomplice to Quarles, his failure to read the Miranda

warning did not violate the Constitution.New York v. Quarles

b.Custodial Interrogation:

c. Custody: Exists if, at the time of the interrogation, a reasonable person in the suspects position

would conclude that his freedom of action is curtailed to the degree associated with an arrest.

i. Determining whether a suspect is actually in custody has always been based on objective

criterion like whether he had been brought to the police station by police or had come of his

own accord. Yarborough v. Alvarado

ii. No need to Mirandize an on-the-street interview or voluntary walk-in precinct confession.

d. Interrogation: Express questioning, words or actions that the police should reasonably expect to

elicit an incriminating response from the suspect.

i. The Court held that the Miranda safeguards came into play "whenever a person in custody is

subjected to either express questioning or its functional equivalent," noting that the term

"interrogation" under Miranda included "any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the subject."Rhode Island v. Innis

ii. Spontaneous statements: made by a suspect in custody, but NOT in response to interrogationare still admissible (police conversation in front seat about tragedy was NOT interrogation)

iii.Agent/officer disguised as fellow prisoner is NOT interrogating suspect. Illinois v. Perkins

iv. Routine booking questions are permitted, unless they are designed to trip up / show menta

state (date of 6th birthday). Manner in which routine are answered is not in itself testimonial.

1. The court reasoned that 5th Amendment and Miranda apply only to evidence of

testimonial or communicative nature and not to "real or physical evidence." The court

ruled that when the officer asked the defendant for his name, height, etc. before

reading him his Miranda rights, it did not violate the 5th Amendment rights of the

defendant because these questions are part of police booking routine.Pennsylvania v

Munizv. Physical or demeanor evidence v. evidence of silence: The prosecution may not use the fact

that the defendant stood mute or claimed his privilege in the face of accusation. This case

involves comments on post-arrest, pre-Miranda silence and demeanor. After one is in

custody, regardless whether the Miranda warnings were actually given, comment on the

defendant's exercise of his right to remain silent is unconstitutional. US v. Velarde-Gomez

vi. Reasonable danger of incrimination: Statutes requiring suspects to identify themselves

during police investigations did not violate either the Fourth or Fifth Amendments. Under the

rubric ofTerry v. Ohio, the minimal intrusion on a suspect's privacy and the legitimate need

of law enforcement officers to quickly dispel suspicion that an individual is engaged in

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criminal activity justified asking a suspect to identify himself. No reason to think that asking

for identification would trigger incrimination. Hiibel v. Sixth Judicial Court

e. Procedural Safeguards:

i. Adequate Warning: Of right to remain silent, that anything said can and will be used

against, of right to consult with lawyer and have one present during interrogation, and that if

cannot afford lawyer, one will be appointed.

1. if you are an american citizen and you go to france then you get mirandized coming

back into the country

ii. Knowing, Voluntary and Intelligent Waiver:

1. Knowing and intelligent: suspect is aware of the nature of the rights and

consequences of abandoning them.

i. Intelligent does not mean wise; suspect can waive without understanding

inculpatory nature of statements.

2. Voluntary: no coercion (based on the totality of circumstances, including suspects

age and intelligence, and conduct of police).

3. Waiver cannot be inferred from the simple fact of a post-Mirandizement incriminating

statement. However, silence combined with acts that demonstrate waiver may be

sufficient.

i. The court is tolerant of a number of ways to waive, including signing then

talking, not signing then talking, etc.

ii. Whether the incriminating statements and sketches were admissible on the

basis of waiver was a question to be resolved on the totality of th

circumstances surrounding the interrogation. On the basis of the record, it is

clear that respondent voluntarily and knowingly waived his Fifth Amendment

rights and consented to continued interrogation, and that the statements and

sketches obtained from him were voluntary, and hence their admission in the

Juvenile Court proceeding was correct.Fare v. Michael C.

iii. If a suspect has not yet requested a lawyer but, unbeknownst to him,somebody else has retained on for him, the failure to inform the suspect that a

lawyer is trying to see him does not erase the waiver of his Miranda rights

Moran v. Burbine

f. The Rights, Once Asserted:

i. Right to Silence: Police may not interrogate a suspect who has asserted her right to silence

about this crime; however, following a new Mirandizement and a significant passage of time

they may ask about another crime.

1. Respondent's right to cut off questioning was scrupulously honored, the police having

immediately ceased the robbery interrogation after respondent's refusal to answer and

having commenced questioning about the murder only after a significant time lapseand after a fresh set of warnings had been given respondent. Michigan v. Mosley

2. The right to silence includes prohibition on comment by govt on silence.

ii. Right to Counsel:

1. Police may not interrogate a suspect who has clearly and unequivocally asserted her

right to counsel about ANY crime, until counsel is present; this protection continues as

long as suspect is in custody. Minnick v. Mississippi

i. clearly requests an attorneyDavis v. US

2. Suspect may waive/void the right to counsel if she re-initiates communication with

police.

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i. Thus, a suspect detained during an investigation may, after invoking his right

to have counsel present during an interrogation, may ask for a drink of water

or to use the telephone without retreating from his prior request for counsel

He may not, however, ask more generalized and open-ended questions

Oregon v. Bradshaw

3. Also, this is NOT the 6th A right to counsel, which IS offense-specific.

4. Under any circumstances, once DEFENDANT has RETAINED to counsel, he cannot

be actively questioned by the state or its agents (including informants); passiv

informants may be okay.

5. Police do not have a rule about how they treat attorney so long as it has no relevance

at all to the degree of compulsion experienced by the defendant during the

interrogation. Moran v. Burbine

iii.Fruit of the poisonous tree:

1. Pre-Miranda volunteered physical evidence IS admissible.

i. US v. Patane, US 2004sup38: physical evidence derivative of a Miranda-

violating confession is admissible

i. after police gave defective warning, suspect told them where to find

gun

ii. held: gun is admissible at trial

1. Miranda exists only to prevent against testifying against

himself, and that the admission of additional fruits of a non-

Mirandized but VOLUNTARY confession in that case

physical evidence therefore cannot violate Miranda.

2. Police practice of eliciting confession, then Mirandizing, then re-eliciting confession

this is NOT okay, UNLESS there is a sufficient break after first confession but before

Mirandize, so as to give DEFENDANT reasonable belief that she can decide not to

speak with police.

i. Oregon v. Elstad, 1985: need not be made aware that a previous confession(made before Miranda warnings were given) is inadmissible, making second

confession admissible. Analyzed as to whether or not the confession was

knowingly and voluntarily made.

i. No casual link between first and second confession.

ii. Missouri v. Seibert, 2004: police followed protocol that called for

interrogation without Miranda warnings followed by warnings and repeat of

confession

i. held: second confession is inadmissible

ii. this situation can be distinguished fromElstadon the following

grounds:1. (1) deliberate failure to warn ;

2. (2) explicit use of previous statement;

3. (3) failure to advise suspect that previous statement could not

be used against her

g. Problems with Voluntariness:

i. False promise not to prosecute (from cops to suspect) is notper se violation.

ii. Paid informant offering to protect suspect from other inmates in exchange for truth =

COERCION, b/c threat of physical harm.

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h. Proceedings: Once legal proceedings begin, everything changes. DEFENDANT cannot be

interrogated unless advised, consciously waives 6 amendment rights.

i. Brewer v. Williams, 1977: the attachment of 6A rights is determined by the occurrence of a

certain prior event (i.e., the institution of proceedings against indictment or arraignment);

it does not depend on whether lawyer would be useful to help suspect prevent incriminating

herself

ii. once 6A rights attach, the government may not deliberately elicitedinculpatory statements in

the absence of a valid waiverof the right to counsel

1. Fellers v. US, 2004787: arrested in his home after having been indicted (6A

attaches at indictment); inculpatory statements made to officers before waiver was

signed are inadmissible

i. NOTE: remanded to determine whether second statement (made after wavier)

was admissible (i.e., whetherElstadapplies in 6A context)

2. Maine v. Moulton, 1985793: codefendant agreed to cooperate with police in

ongoing investigation of witness tampering after he and were indicted; met with

(at s urging); police told him to discuss eliminating witnesses (which rejected);

conversation then turned to the theft for which they were indicted and related

burglaries

i. held: incriminatory statements are inadmissible in trial of the charges pending

ii. deliberate elicitation:

i. even though officers told informant to limit conversation to witness

tampering, theyshould have known that their investigative tactic

would lead to incriminatory information from charged in absence of

counsel

ii. nor does it matter that initiated meeting with informant: knowing

exploitation by the State of an opportunity to confront the accused

without counsel being present is as much a breach of the States

obligation not to circumvent the right to assistance of counsel as is theintentional creation of such an opportunity

iii.NOTE: inculpatory statements re. crime 2 (witness tampering) would

be admissible in trial of that crime b/c had not yet been charged;

inculpatory statements re. crime 1 would also be admissible at trial 2 if

relevant

3. US v. Henry, 1980789: paid informant, a fellow inmate, engaged in conversations

with while he was incarcerated after indictment that led to a confession

i. although government agents instructed informant not to question about his

crime, the informant was not just a passive listener but an active participant in

conversations with ii. held: incriminatory statements made in the course of these conversations are

inadmissible

4. Kuhlman v. Wilson, 1986791: 6A right to counsel is not violated where government

informant was placed close to and overheard make incriminatory statements, but

did nothing to elicit these statements

iii. Texas v. Cobb, 2001799:Blockburgertest is used to determine whether the offense

regarding which is question is the same as that for which he was indicted

1. test: whether each offense requires proof of a fact that the other does not

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2. held: The United States Supreme Court held that, regardless of whether the murder

charge was closely related factually to the burglary offense, the right to counsel was

offense specific. Since the two offenses required different elements of proof, they

were separate offenses, and prosecution was not initiated on the murder offense at the

time of the interrogation. Respondent thus had no right to the presence of his

previously appointed counsel during the interrogation concerning the murder charge,

and the confession resulting from that interrogation was admissible.

iv. Waiver

1. as in Miranda, waiver must be voluntary, knowing, and intelligent (VKI)

i. waiver is not shown simply be establishing that elect to speak after

receiving warnings

2. knowing and intelligent

i. Patterson v. Illinois, 1988794: Miranda warnings sufficiently inform

defend of his rights to counsel; thus, if is given and understands Miranda

warning, waiver is knowing and intelligent

i. exception: if is not told that lawyer is trying to contact her during

questioning (as in Moran v. Burbine) and 6A has already attached,

waiver will not be valid

ii. also, whereas a conversation between an undercover officer and would not

give rise to Miranda violation, it does violate 6A

iii.

IDENTIFICATION:

RIGHT TO COUNSEL

Pre-Indictment, Live: No right to counsel before formal proceedings begin.

1. Kirby v. Illinois, 406 U.S. 682 (1972) (the right to counsel does not apply to pre-indictment eyewitness

identification). At the start of adversary judicial criminal proceedings

Post-Indictment, Live: Right to counsel in live ID process attaches when formal proceedings begin.

1. An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedureconducted after the commencement of an adversary judicial criminal proceeding against him. This rule is

known as the Wade-Kirby doctrine. United States v. Wade, 388 U.S. 218 (1967) (recognizing that a person

is entitled to the assistance of counsel at all critical stages of a criminal proceeding, and determining that the

pretrial exhibition of a suspect to a witness for identification purposes is a critical stage of the prosecution);

a. If counsel is not present at the post-indictment lineup, and the accused has not waived counsel

results of the out-of-court identification are inadmissible. In such cases, the prosecution is

furthermore precluded from obtaining an in-courtidentification of the accused by the same witness

unless it proves by clear and convincing evidence that the in-court identification does not constitute

fruit-of-the-poisonous-tree evidence. Among the factors that may be considered are:

i. the prior opportunity of the witness to observe the alleged criminal act.ii. the existence of any discrepancy between any pre-lineup description and the defendant's

actual appearance.

iii. any identification prior to lineup of another person.

iv. the identification by picture of the defendant prior to the lineup.

v. failure to identify the defendant on a prior occasion.

vi. the lapse of time between the crime and the lineup identification.

b. Moore v. Illinois: Defendant was convicted for rape after his victim identified him at a preliminary

hearing in which defendant was not represented by counsel. The Court held that defendant's Sixth

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Amendment rights were violated by a corporeal identification conducted after the initiation of

adversary judicial criminal proceedings and in the absence of counsel.

Photographic: No right to counsel (because not an adversarial confrontation).

1. Distinguished from in-person line-ups are mug shots. The Sixth Amendment does not apply where the

police present photographs, including a photograph of the accused, to an eyewitness for possibl

identification of the perpetrator. Such a display, although it occurs after indictment, is not a critical stage of

the prosecution. United States v. Ash,413 U.S. 300 (1973).

SUGGESTIVE PROCEDURE

Due Process: Due process is denied if an ID is unnecessarily suggestive and conducive to irreparable

mistaken ID.

1. Evidence of apretrial identification of the accused must be excluded from trial if, based on the totality of

the circumstances, the procedure used to obtain the identification was (1) unnecessarily suggestive; and (2)

conducive to mistaken identification. Stovall v. Denno, 388 U.S. 293 (1967). This rule applies regardless

of whether the identification was corporeal or non-corporeal, occurred before or after formal charges were

initiated, and whether or not counsel was present.

a.Balancing Test: opportunity of the witness to view the criminal at the time of the crime, the degree of

attention paid by the witness, accuracy of the prior description, level of certainty, and the time

between the crime and the confrontation.

b.

Reliable IDs:

1. Even if an identification procedure isunnecessarily suggestive, the identification procedure must also have

been unreliable in order to exclude the evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The

relevant factors in determining reliability include:

a.Person conducting line-up should not be aware of suspect.

b.Eyewitnesses should be told that the suspect might not be in the lineup.

c.Suspect should not stand out in any way.

d.A clear statement of witness confidence in the ID should be taken

e.the opportunity of the witness to view the perpetrator at the time of the crime.f.the witness' degree of attention.

g.the accuracy of the witness' prior description of the perpetrator.

h.the length of time between the crime and the confrontation.

EXCLUSIONARY RULES:

STANDING TO SUPPRESS

1. A Defendant has standing ONLY to object to evidence obtained via an unconstitutional intrusion on

her reasonable expectation of privacy.

a. Rakas v. Illinois, US 1978516: movant must have a REOP in the place searched

i. target theory: any against whom search was directed

1. eg.Alderman: government installs illegal wiretap on As phone in order to gatherevidence against BB is target

ii. judicial integrity(Payner 523): the supervisory power does not authorize a federal court

to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a

third party not before the court

1. movant must have a REOP in the place searched

iii. automatic standing: movant testifies that he owned the property searched in order to create

standing ownership creates automatic standing.

1. testimony by the defendant to allege possession cannot be used against him at trial.

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iv. Business premises corporate or individual defendant in possession of the business premises

searched has standing, and that an officer or an employee of the business enterprise has

standing if there was a demonstrated nexus between the area searched and the work space of

the defendant.

v. Brendlin v. California: possessory interest in the items seized was automatically enough to

permit a challenge constitutionality; however, possession of the seized items must be

evaluated like other 4A claim relevant only if REOP with respect to item and search.

vi. being legitimately on the premises is insufficient.

vii.Ownership ofsome items kept in the intruded space is insufficient.

viii.A brief invited stay is insufficient visitors who do not stay overnightreceive no

protection.

1. however, two individuals arrested in third partys home while there for several hours

to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant

was lawful (Minnesota v. Carter, US 1998188)

2. important factors in determining whether there is a REOP in hosts home

i. length of stay

ii. purpose of visit: social v. business

3.FRUIT OF THE POISONOUS TREE

1. Wong Sun, 1963543: evidence is not admissible against where:

a. (a) it was come upon by exploitation of prior illegality; and

i. NOTE: exploitation connotes a higher degree of relatedness than simply saying cause; thus,

initial misconduct must be more than simply one among several causes

b. (b) the illegality was one of which had standing to complain

Independent Source:

The government can show that it had a legal independent source for the evidence. government must

prove by a preponderance of the evidence that the evidence would have been discovered through

independent legal means (Nix).1. general principle: police should not be put in a worse position that they have been in it no police error or

misconduct had occurred (Nix v. Williams, 1984550)

a. but for test.

b. Victim witness is untainted by initial photo ID from bad arrest, b/c victim was known to police

before arrest.

2. evidence observed in pain view during illegal entry, but later obtained pursuant to independently obtained

search warrant (i.e., warrant that did not rely on the illegal entry)

a. Murray v. US, 1988544: officers must have planned to obtain warrant before conducting illegal

search (i.e., purpose of illegal search cannot be to determine whether obtaining a warrant was

worthwhile)b. if officers decision to seek a warrant was prompted by evidence discovered during an illegal entry,

then the search pursuant to a warrant would not have been a genuine independent source

3.

Inevitable Discovery:

The government would have discovered the evidence without the illegal intrusion.

4.The police must show that evidence would have discovered the evidence inevitably and in the same

condition NOT that it could have or might have.

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5.Where govt has cause to arrest, but does so in an illegal manner, a statement outside the scope of the

illegality is admissible (ex: illegal in-home arrest, but statement made subsequently while outside

home).

6.CAREFUL: must distinguish illegal intrusion from illegally conducted intrusion; if the police can

search, but fail to announce themselves properly, the evidence will probable still come in.

Attenuation:

Some additional factor sufficiently attenuates the link between the illegal intrusion and the evidence

in question.

a.The shorter the time lapse between the Fourth Amendment violation and the acquisition of the

challenged evidence, the more likely it is that a court will conclude that the evidence is tainted. For

example, in Wong Sun [371 U.S. 471], the police obtained a statement from the defendant in his

bedroom immediately after his unlawful arrest. The Court suppressed this evidence, whic

derive[d] so immediately from the unlawful entry.

b. brea