criminal justice outline

8/4/2019 Criminal Justice Outline

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Criminal Justice

NOTE: IF WE ARE A STATE COURT, WE CAN ARGUE FOR MORE STRINGENT RULES, ETC IN O

STATE COURTS RE: OUR STATE CONSTITUTION

1. Introduction

a. Herbert Packer: The Courts, the Police, and the Rest of Use

i. Competing values of the criminal justice system are crime control and due process.

ii.Crime Control:

1. We should trust police more.2. Given resources allocated, process should be quick and informal (assembly line).

iii.Due Process

1. We should distrust police and prosecutors so we should make system like an obstacle

course with as many safeguards as possible.

2. Facts are difficult to prove

3. False positives are way worse than false negatives.

b. Louis Michael Seidman: Criminal Procedure as the Servant of Politics

i. There is a believe that due process and Bill of Rights stymie law enforcement and justice, peop

us this to justify longer sentences because they believe to many guilty people get away; and th

process if so expensive that the penalties must match the costs.c. Joseph D. Grano: Ascertaining the Truth

i. Court is blocking truth through procedures, not actively looking for it.

ii.Rejects notion that criminals are victims of their upbringing (society).

d. Seidman v. Grano:

e. Dorothy E. Roberts: Crime, Race, and Reproduction

i. Criminal Justice is a form of racial discrimination.

f. Akhil Reed Amar: The future of Constitutional Criminal Procedure

i. Exclusionary Rule is wrong: it protects the guilty without protecting the innocent when princip

should be protect the guilty only so much as is necessary to protect the innocent.

g. William J. Stuntz: The Uneasy Relationship between Criminal Justice and Criminal Procedurei. Judges poorly positioned to make criminal justice policy (do not have facts of legislature).

ii.Because of this prosecutors and police and enormous discretion, and they choose to prosecute

is cheapest and easiest to convict. Similarly, defense attorneys choose cheapest defenses

(constitutional) as opposed to factual which require more investigation.

h. Ala Dershowitz: The Best Defense

i. Rules of criminal Procedure:

1. Systems knows police lie, etc.

i. William J. Stuntz: Substance, Process, and the Civil-Criminal Line

i. When there are bad substantive rules, it creates a need for more procedural rules to try and

compensate to protect the defendants.j. Anthony Amsterdam: The Supreme Court and the Rights of Suspects in Criminal Cases

i. Supreme Court does not reach decisions that respond well to real problems confronted with. W

1. Lacks supervisory powers of police chief and only receives appeals on evidentiary rule

2. Many guilty pleas determine what cases Court will hear.

3. Court often lacks information and no other agency regulates this.

4. When a Supreme Court reaches a decision, it then filters down through local courts wh

have pro-government lean.

k. William J. Brennan: State Constitution and the Protection of Individual Rights

i. State Supreme Courts are interpreting their constitution to provide suspects more rights

ii.Federal decision merely set the floor, more rights are always ok, but cant have fewer.


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2. Due Process

a. Four different views of due process discussed. P. 85.

b. At the time of the founding the criminal justice system was very different (no prosecutors, no police, n

prisons).

c. Defined as the Bill of Rights by Harlan in dissent in Hurtado.

d. Defined by Majority (Matthews) as Law.

e. Also defined as accuracy.

i. Race Cases:

1. Moore v. Dempsey: no trial by mobs.

2. Powell v. Alabama: No exclusion of blacks from jury

3. Norris v. Alabama: Right to counsel

4. Brown v. Mississippi: No Confession through torture.

f. Also defined as fundamental fairness little more than intuition.

g. Jurors v. Judges

i. Jurors acquit more than judges do

h. Grand Juries:

i. Why dont defendants want to testify at Grand Juries?

1. Lawyers arent there to help them

2. Prosecutor gets a record

3. Rules of Evidence dont apply.

ii.Difference between Grand Jury and a Trial:

1. Only hear prosecution side at grand jury

2. Standard is probable cause (not beyond a reasonable doubt).

iii.Why defense attorney asks client to write down questions:

1. Wants a record of what was asked and said and doesnt get a transcript

2. Wants defense to be consistent

3. Wants to know what prosecutor is asking.

iv.Uses:

1. Used by prosecutor as a sword to get evidence, force people to testify and provide

evidence, and is in secret so people may not know they are being investigated.

i. Hurtado v. California: US Supreme Court 1884

i. Facts: Plaintiff convicted of murder, was indicted by information not a grand jury. Appeals

saying 14th amendment was violated because he was not charged by a grand jury.

ii.Holding: You dont need to be charged by a Grand Jury. As long as proceeding is for public g

with principles of liberty and justice

iii.Matthews Majority: Policy: Constitution is a living document made for the future and should

ignore progress or improvement.

1. Due Process found in the 5th and 14th amendment, but since 14th doesnt mention

Indictment by Grand Jury it must not have been intended to apply to the states.

2. Complete Incorporation Doctrine Rejected.

3. Law cannot be arbitrary: must be applied generally

4. Laws must be clear: not so unusual as to be unexpected (Lambert) and not to easy to

understand/too vague. Coates v. Cincinnati (p. 87); PapaChristo (p. 87)

iv.Notes: Information is: A written set of accusation made by the prosecutor.

v.Dissent: That 14th doesnt mention grand jury should mean it doesnt include it, SC still holds

double-jeopardy rule applies to states even though the 14th doesnt mention it.

j. Palko v. Connecticu t:

i. Facts: Confession excluded because police lied to him, wants double jeopardy incorporated to

apply to the states. Court says no,

ii.Arguments: Argued for total incorporation of bill of rights into the 14 th amendment.


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iii.Holding: No incorporation.

iv.Case-by-case (BoR amendment by amendment) approach known as selective incorporation.

v.Policy: This is not the law today, as the no double-jeopardy later because applied to the states

k. Rochin v. California:

i. Facts: Police force open mans mouth and pump his stomach to recover suspected drugs he

swallowed.

ii.Test: Shock the Conscience test of fundamental fairness

iii.Holding: Uninformative Opinion, but police did violate due process.

1. Example of valuing process over accuracy in some cases.

l. Duncan v. Louisiana: US Supreme Court 1968

i. Facts: Plaintiff convicted of battery. Requested trial by jury. LA only allowed for trials by jury

capital punishment or hard labor cases so they denied his request.

ii.Holding: 6th amendment incorporated through14th amendment guarantees right to trial by jury.

iii.Rulecases of crimes punishable by two or more years imprisonment deemed not petty and req

trial by jury.

1. Now the rule is accused of a jail time of six months

iv.Policy: Fundamental Fairness rationale used

3. The 6th Amendment: Right to Counsel

a. Gideon v. Wainwright : US Supreme Court 1963

i. Facts: Indigent defendant in FL requests assistance of counsel in his criminal case. This reques

denied by the Judge because FL only requires counsel in capital cases. D was convicted.

ii.Holding: 6th Amendment applies to states.

1. Overrules Special Exception Rule: court looks to individual circumstances of the cas

determine if he has a right to counsel.

iii.Rationale: Justice Black wrote majority

1. State uses prosecutors to represent itself.

2. Anyone who has the money to hire a lawyer does.

iv.Consequences of Holding:

1. Raises the costs of trial on the state and incentivizes plea deals

2. Public Defenders interests arent always in line with his clients. (more plea deals and

guilty pleas)

v.How do lawyers help defendants?

1. Investigate skills

2. Decide what evidence to put on and what to exclude

3. More false negatives (guilty go free); but less false positives (innocent convicted)

b. Johnson v. Zerbst: US Supreme Court 1938

i. Holding: Counsel has to be appointed for indigents in federal criminal cases.

c. Argersinger v. Hamlin : US Supreme Court 1972:

i. Facts: Indigent defendant charged with a misdemeanor punishable by up to 6 months in jail an

fine. He requested the assistance of counsel but it was denied by the trial judge. He was convic

ii.Holding: 6th Amendment applies to misdemeanors if D actually (not potentially) will be jailed

iii.Rationale: Avoid the assembly line justice.

1. Misdemeanors may implicate issues more complex than some felonies

iv.Concurrence: Wanted case-by-case determination of whether right to counsel applied

1. Some misdemeanors are simple.

2. Very concerned about implementation and costs burdening state budgets

3. Worried about overburdening state courts, increasing litigation congestion, and

exacerbating delays.

v.Consequences:


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1. Judge must determine whether he thinks he might want to impose jail time on a defend

before the trial in determining whether to appoint counsel for the defendant.

d. Scott v. Illinois: US Supreme Court 1979:

i. Facts: indigent defendant charged with misdemeanor punishable by up to 1 year in prison and

Convicted and just fined.

ii.Holding: 6th Amendment does not extend to all cases with the mere possibility of jail.

iii.Brennan Dissent: prefers actual imprisonment test

1. Rationale:

a. Better recognizes social stigma associated with the crime

b. Cost management is too speculative

c. Forces judges to determine punishment before trial.

d. More respectful of legislative judgments

e. Matthews v. Eldridge

4. Right to Counsel on Appeal

a. Griffin v. Illinois: US 1956

i. Holding: SC struck down IL statute denying free transcripts to indigent defendants necessary f

them to get an appeal.

ii.Rule: State cannot deny access to an important process on the basis of wealth.

1. Equal Protection Clause Rationale.

b. Douglas v. California: US 1963

i. Holding: 14th Amendment requires a state to provide counsel for an indigent defendant on his

statutory appeal.

ii.Rationale: Uses the principles of the Equal Protection Clause

iii.Also Due Process Clause: Need to analyze importance of each procedure.

1. This decision appears to fall under Equal Protection because states do not need to perm

appeals, so there is no due process right that is being violated by not granting counsel a

extra procedure.

c. Ross v. Moffitt: US 1974

i. Holding: 14th Amendment does not require the appointment of counsel to assist indigent appel

in discretionary state appeals and in applications for review in the Supreme Court.

ii.Rationale:

1. Due Process Clause: Appeals are not always permitted by states. Thus, Due Process on

requires that individuals not be singled out and denied meaningful access because of th

poverty.

2. Equal Protection Clause: Only requires that the indigent has an adequate opportunity to

present his claims fairly in the context of the appellate process, does not require absolu

equality between the rich and the poor.

3. Appellant and Appellate Court already have access to a lot of documents, and these wo

provide the Court an adequate basis for its decision to grant review.

4. Purpose of discretionary review: not to determine merit of convictions, rather to look f

cases of public interest.

5. Effective Assistance of Counsel

a. Paul Wice: Chaos in the Courthouse: The Inner Workings of the Urban Criminal Courts

i. Problems of Criminal Justice System

1. Inadequate Staffing

2. Backlog of Cases (Both of these lead to plea bargains)

ii.Frustrations of Indigent Defendant upon being assigned a public defender

1. No choice of attorney

2. Assembly-line feel of seeing various lawyers

iii.Public Defenders are not worse than private ones on the whole and have some advantages:


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1. Own law libraries

2. Good relationships with prosecutor and judges

3. Criminal experts

b. Whatss Wrong with Plea Bargains?

i. Incentivizes overcharging by the prosecutor

ii.Incentivizes innocent defendants to plead guilty to avoid even longer punishments for convicti

iii.Prosecutors offer plea deals (more generous) even as their case is falling apart

iv.Defendants are able to plea to something other than what they did

v.Participants not happy: Defendant feels lawyer has betrayed him; victims feel defendants got o

too lightly.

c. Bruce Jackson: Law and Disorder

i. Public Defenders assume their clients are guilty and see their job as minimizing jail time. The

strong relationships with prosecutors and judges might compromise their representation of the

client.

d. What is wrong with assuming your client is guilty

i. If you dont believe your client is innocent, you might not work as hard

ii.You might induce him to plea more readily

e. Abraham Blumberg: The Practice of Law as Confidence Game: Organizational Co-Optation of A

Profession

i. Indictment of Defense attorneys charging collusion with judges and prosecutors

ii.Notes tension between defense lawyer and defendant

iii.Thinks of defense lawyer as member of the prosecutors office.

f. Critical Stages of the Proceeding

i. Coleman v. Alabama (1970): Right to Counsel applies at every critical stage of a criminal

prosecution.

ii.Critical Stage: formal interaction between the defendant and the state that could adversely affe

the defendants ability effectively to exercise a legal right.

1. I.e., Preliminary hearings, initial appearances, arraignments, informal meetings betwee

the defendant and a representative of the state that is designed to elicit incriminating

information from the Defendant.

2. Does not include: ex parte proceedings that will not adversely affect a defendants lega

rights (i.e. warrant procedures).

g. Background cases

i. Geders v. United States : US 1976: An attorney may not be prohibited from conferring with the

client during an overnight recess that falls between direct examination and cross-examination.

ii.Ferguson v . Georgia : US 1961: state may not prohibit the attorney from eliciting the clients

testimony on direct examination.

iii.Perry v . Leeke : US 1989: Court held that the trial court did not err by ordering the Defendant

to consult with his lawyer during a 15 minute recess that followed immediately his direct

examination and preceded his cross-examination.

iv.Herring v. New York: US Attorney must be allowed to giving closing summation in nonjury

v.Brooks v. Tennessee: State may not restrict attorneys choice of when to put the defendant on

stand

h. Trial courts used to employ a mockery of justice standard to test claims of ineffectiveness.

i. Strickland v. Washington : US 1984

i. Facts: Defendant arrested for murder. He went against the advice of his counsel and confessed

waived certain rights. Because of this counsel did not act as diligently as possible and did not

investigate the circumstances. Bu the he make a closing argument and suppress a rap sheet.

Defendant is claiming ineffective assistance of counsel.

ii.Holding: Counsel was reasonable


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iii.Rule: 2 prong test to show ineffectiveness of counsel:

1. Counsels performance was deficient: fell below an objective standard of reasonablene

a. Below an objective standard of reasonableness: reasonably effective assistanc

2. The deficient performance prejudiced the defense.

a. Counsels errors were so serious as to deprive the defendant of a fair trial, a tria

whose result is reliable.

i. The defendant must show that there is a reasonable probability that, b

for counsels unprofessional errors the result of the proceeding would h

been different.

iv.Marshall Dissent: reasonableness standard is too vague. Advocated for a checklist.

1. Too hard to tell in retrospect if attorney was reasonable.

2. Purpose of 6th amendment is more than avoid false negatives, it is fundamental fairness

v.Policy: test was to make sure trial was fair, not improve procedures.

vi.Problems: Majority says the burden should be on the defense to show prejudice as the second

prong.

1. Marshall says it should be on the prosecution.

vii.Categories where Strickland Prejudice Standard is presumed:

1. Actual or constructive denial of counsel (Gideon)

2. Certain kinds of interferences with Council (Geders)

3. Some situations involving conflicts of interest (p. 196)

4. US v. Cronic : Where counsel failed to function in any meaningful sense as the

governments adversary.

5. Counsel entirely fails to subject the prosecutions case to meaningful adversarial testin

(in Bell v. Clone).

a. Calling no defense witnesses, not giving a closing argument are not sufficient t

show counsel entirely fails to subject prosecutions case to meaningful adversar

testing. Failure MUST BE COMPLETE. (not only to parts of the case). (Bell).

6. Where counsel is called upon to render assistance under circumstances where competen

counsel very likely could not. Powell v. Alabam a; Cronic .

j. Nix v. Whiteside :

i. Facts: Whiteside charged with murder, but then tells his attorney that he must lie or else he is

dead man. The attorney threatened the defendant that if he lied, he would tell the court he was

lying and withdraw as his representation. The Supreme Court held 5-4 that this was acceptable

ii.Holding: The attorney acted within the range of professional conduct under Strickland.

iii.Importance: A defendants right to effective representation is not violated when an attorney

refuses to cooperate with a defendants desire to testify at trial.

1. No right to commit perjury.

iv.Things an attorney can do if he thinks client is going to lie

1. Persuade D not to testify falsely

2. Dont call D as a witness

3. If he insists on testifying, act like he is telling the truth or let him testify in a free narra

4. Disclose to trial judge Ds intention to commit perjury

5. Tell prosecutor to call him as a witness

6. Multiple Representation

a. Benefits:

i. Means of insuring against reciprocal incrimination.

1. A common defense often gives strength to a common attack.

b. Glasser v. United States : 1942:

i. Facts: After one defendant fired his attorney, the judge forced an attorney representing a co-

defendant to represent him over objections of a conflict of interest. The attorney failed to cross


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examine a witness and object to the admission of evidence because he was trying to protect hi

other client.

ii.Rule: The assistance of counsel required under the 6th amendment contemplates that such

assistance be untrammeled and unimpaired by a court order requiring that one lawyer should

simultaneously represent conflicting interests.

iii.Court did not look into whether there was prejudice and reversed.

c. Holloway v. Arkansas : 1978

i. Facts: Attorney forced to represent three co-defendants. Makes a pre-trial motion for the

appointment of separate counsel which is denied. His clients want to testify, but he would not

able to cross-examine them because of the confidential information he has received.

ii.Rule: When an attorney representing co-defendants makes a pre-trial motion for the appointm

of separate counsel, based on his assertion of a potential conflict of interest, a trial judge is

required either to grant the motion or to take adequate steps to ascertain whether the risk is too

remote to warrant separate counsel.

iii.If judge fails to do this, reversal is automatic.

1. Verdict is unreliable

iv.Policy: Because of the confidential information attorneys receive that judges dont, they are

better position than the court to know when a potential conflict of interest might emerge.

d. Cuyler v. Sullivan: 1980

i. Facts: 2 attorneys represent three co-defendants. At the trial of the first they do not put the oth

co-defendants on the stand to avoid exposing them for their upcoming trials. They do not mak

motion for the appointment of separate counsel.

ii.Rule: 6th amendment does not require a trial court to inquire into the possibility of a con

of interest without a motion or he should reasonably know from counsel.

1. Policy: Attorneys better positioned.

iii.A defendant who didnt raise an objection at trial can still establish a violation of the 6 th

amendment by showing:

1. He suffered from an actual conflict of interest; and

2. That the conflict adversely affected his lawyers performance.

a. This test is more strenuous than the automatic reversal of Holloway, but less so

than the reasonable probability test of Strickland.

iv.Trial Court must inquire into whether there is a conflict of interest when special circumstance

exist. (trial judge knew or should have known)

e. Direct Evidence: If accurate, it proves the point for which it was offered

f. Circumstantial Evidence: Different explanations for the evidence.

g. Mickens v. Taylor : 2002: (what happens under special circumstances when the judge doesnt investig

i. Rule: Sullivan (test for a defendant who didnt object) refers to an attorney who actively

represents conflicting interests (past clients and conflicts of interest dont count).

ii.Mickens and Cuyler concerned with the performance of the attorney and not the result

(Strickland).

h. Rule 44 (c): The court must promptly inquire about the propriety of joint representation and must

personally advise each defendant of the right to the effective assistance of counsel, including separate

representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the c

must take appropriate measures to protect each defendants right to counsel.

i. Tague Criticisms of Rule 44:

i. Inquiry made too late in the process.

1. Many times plea deals are made before this and thus bury evidence of conflicts.

ii.The rule does not appear to apply to multiple cases, even if the judge knows of them.

iii.Rule does not provide guidelines for review of a post-conviction attack based on conflict.


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1. The initial inquiry might not reveal a conflict that arises later, so reversal on conflict

grounds is still possible.

j. General view is that defendants CAN waive their right to conflict free assistance.

7. Representing Oneself

a. The 6th Amendment implicitly allows D to waive the right to counsel.

b. Why would a defendant want to represent himself?

i. Unhappy experience with prior representation.

ii.Difference of opinion on trial strategy.

iii.Able to say things the lawyer cant say.

iv.Able to make positive impression on the jury without testifying

c. What are the problems?

i. D may not know rules of evidence or when to objectii.some aspect of Ds personality may upset the juryiii.may accidently reveal infoiv.higher probability of convictionv.leads to more appealsvi.disrupts proceedingsvii.judge may protect D

d. Why do we let them represent themselves?i. Autonomy

ii.Dignityiii.Privacy

e. Faretta v. California : 1975:

i. Facts: Defendant was charged with grand theft and wanted to represent himself. The judge ini

allowed it, but then later held a hearing wherein he questioned the defendant on matters of law

reversed his prior decision. The Defendant was convicted.

ii.Rule: Forcing a lawyer on an unwilling defendant is contrary to his basic right to defend hims

1. Defendant must voluntarily and knowingly waive his right to counsel.

iii.Policy: Defendant is the one with rights, not counsel

1. Defendant is the master, not counsel

2. He bears the risks3. While law of averages favors counsel, this is a decision about an instance, and in some

instances defendants might to better than counsel.

iv.Dissent: representation by counsel is essential to ensure a fair trial.

f. McKaskle v. Wiggins : 1984

i. Rule: In allowing defendant to represent himself, you can still appoint a lawyer to assist defen

who can also take over the case if D cannot defend himself or wants attorney representation at

some point.

8. The 6th Amendment Applied: Lineups, Showups, and Photographic Arrays

a. United States v. Wade (decided before Coleman): 1967:

i. Facts: Defendant identified in postindictment lineup held in the absence of counsel.ii.Rule: A person is entitled to the guiding hand of counsel at all critical stages of a criminal

proceeding.

iii.Critical Proceeding: any stage of the prosecution, formal or informal, in court or out, where

counsels absence might derogate from the accuseds right to a fair trial.

iv.If counsel should have attended the lineup, but did not, the eyewitness cannot testify that a pr

trial ID was made, but can still make in-court ID

v.Policy: inherent unreliability of eyewitness identifications

1. Hard for defense counsel to reconstruct procedure at trial to demonstrate why the

identification should be discounted

2. Defendant unlikely to be alert enough to relay material information to counsel.


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3. Presence of counsel itself can avert prejudice and assure a meaningful confrontation at

trial.

4. Prosecutors can make subconscious suggestions to the identifier

5. Once making an identification, people tend to harden in it.

vi.White Dissent: this will hamper law enforcement

1. Improper police procedures not so widespread that a broad rule must be laid down.

vii.Coleman- defines critical stages generally

viii.Wade- after criminal proceedings start, lineup counts as critical stage, therefore right to counsel

ix.Kirby- before criminal proceedings start, no right to counsel at lineup, can't be a critical stage of the proceedings

because the proceedings haven't started yet, takes away practical effect of Wade because most lineups happen becriminal proceedings start

b. Gilbert v. California: 1967:

i. Rule: Per se exclusionary rule (cant say he identified defendant at earlier proceeding) was

applicable to out-of-court identifications made in violation of the suspects right to counsel.

c. Stovall v. Denno : 1967:

i. Rule: Wade was to be applied only to lineups or showups occurring after the decision in Wade

that prior lineups could be tested under a Due Process standard.

ii.Showups suspect is brought to witness and is the onlyperson presented. More likely to be

deemed unconstitutional violation ofDue Process, b/c more suggestive and makes the possibi

of misidentification greater. Less reliable than a lineup, so should only be used in exigentcircumstances (witness was on her death bed)

d. Kirby v. Illinois : 1972:

i. Rule: 6th Amendment right to counsel does not apply to police conduct that occurs prior to the

initiation of formal judicial proceedings. Criminal prosecution hadnt started because there ha

been an adversary judicial proceeding

ii.Rule: This limits Wade significantly as almost all lineups occur before formal charges are

brought.

1. Two Questions:

a. Has the govt committed itself to prosecute?

b. Is the defendant faced with the prosecutorial forces of organized society, andimmersed in the intricacies of substantive and procedural criminal law.

iii.Textual Argument in support of Kirby: applies to accused: a term suggesting formal charges h

been brought in all criminal prosecutions.

e. Moore v. Illinois : 1977:

i. Rule: Identification at preliminary hearing at which defendant was unaccompanied by counsel

inadmissible because it was clearly the beginning of adversary judicial criminal proceedings

against him.

f. Role of Counsel in the identification process

i. Lower courts have generally agreed that attyshould play a passive role, and should not make

lineup into an adversarial proceeding.g. How to Increase Reliability of Eyewitness ID

i. ban pre-trial IDsii.photo or videotape pre-trial proceedingsiii.keep photos used at photographic lineupiv.have a blank lineup where suspect is not participating to see if witness will ID erroneouslyv.exclude D from trial during ID process and put him amongst spectators to see if witness will ID

himh. United States v. Ash : 1973:

i. Facts: A criminal defendant objected to the government's use of a photographic lineup without

presence of attorney. 33 months after the robbery occurred the prosecutor showed several


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photographs to the eyewitnesses again with Ash and Bailey in it. During the second time three

the four choose Ash's photography but no one choose Bailey.

ii.Holding: A person against whom adversary proceedings have been initiated is not entitled to

assistance of counsel when the police display one or more photographs, including one of the

accused, to an eyewitness to see if he can identify the culprit.

iii.Policy: This is not a critical stage of the proceeding.

1. Since defendant is not present, he cannot be taken advantage of by the prosecutor.

2. Because of the tangible nature of the photographs a defense attorney can reconstruct th

process at trial.

iv.Dissent: (Brennan): Many of the problems recognized by the court are inherent in photograph

identifications too.

1. Photos are even less reliable because they are only two dimensional.

i. Possible methods of suggestion in photographic identification procedures:

i. Fotos themselves might suggest which pic is subject.

ii.Suggestion through display methods.

iii.Prosecutors gestures or comments might suggest

iv.Defense cannot reconstruct photo id session.

v.Accused himself not present at photo id to decrease chances of suggestions, etc.

j. Jonkakit: Reliable Identification

i. Looking at mugshots and lineups are often suggestive because of unconscious transference.

face seen in one situation is remembered in another. So when a victim looks at mugshots days

after the crime and subconsciously remembers them and then when confront withed a lineup o

individual she unconsciously transfers his image to her memory.

ii.You can protect against this by:

1. Require police to keep accurate records of which mugshots are shown to police

2. Use control people.

k. Identification Procedures: Due Process of Law

i. Due process clause requires the exclusion at trial of evidence of a pretrial identification of the

defendant if, based on the totality of the circumstances, the procedure was:

1. Unnecessarily suggestive; and

a. i.e. in Stovall suspect only one presented to dying defendant at hospital handcu

to 5 officers (this was NOT a violation because it was IMPERATIVE).

2. Conducive to mistaken identification (Stovall).

ii.Simmons v. United States : 1968 a conviction will be set aside only if the identification proced

is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable

misidentification.

1. Does this test still apply? Is the standard now reliability (See Manson)

2. If the court rules the out-of-court identification offends Due Process, it is excluded from

the trial. An in-court identification is then allowed only if the out-of-court procedure di

not create a very substantial likelihood of irreparable misidentification. This is rare for

courts to find, so both the pretrial and in-court identifications are generally allowed in

trial.

iii.Neil v. Biggers: 1972: In-court identifications are to be governed by Simmons and admissibil

turns on reliability.

1. Factors in determining reliability:

a. The opportunity of the witness to view the criminal at the time of the crime

b. The witness degree of attention

c. The accuracy of the witness prior description of the criminal

d. The level of certainty demonstrated by the witness at the confrontation

e. The length of time between the crime and the confrontation


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iv.Manson v. Brathwaite : 1977

1. Rule: Even if an identification procedure is unnecessarily suggestive, due process is n

necessarily violated. RELIABILITY is the linchpin in determining the admissibility o

identification testimony.

2. Look at reliability factors in Biggers, totality of the circumstances.

a. (in this case, only showed one photo)

3. Test of Reliability: The likelihood that a misidentification has occurred as the result of

unnecessarily suggestive process.

l. Even when they are likely to lose, Defense attorneys should try to get pre-trial hearings on the

admissibility of prior identifications: why?

i. Troll for information to use at trial

ii.Less discovery in criminal proceedings than civil

iii.Learn how to best treat the witness: attacking (see how shell react) or empathy (get more info

through building confidence)

9. The 4th Amendment The Rise and Fall of Boyd

a. Boyd v. United States : 1886:

i. Facts: Plaintiffs are importers and were trying to import 35 cases of plate glass. There was a

statute saying that if they tried to defraud the payment of the import, their merchandise would

confiscated, and they would be fined. Their goods were seized by the US. Plaintiff files a clai

for the goods. In the trial the value of the goods became an issue. The district judge made

plaintiffs produce an invoice. The plaintiffs challenge the constitutionality of the law that wou

make a claimant produce evidence to be used against itself.

ii.Holding: 4th and 5th amendments should be broadly construed, government cannot force

claimants/defendants to turn over their books/papers in an effort to get them to incriminate

themselves. (marriage of 4th and 5th Amendments).

1. Compulsory production of personal papers is compelling the owner to be a witness aga

himself and is a violation of the 4 th amendment as an unreasonable search and seizure;

papers required by law to be kept are seizable because government has a property inter

in the,.

iii.Policy: Property rights interpretation of the 4th Amendment. This was a trespass against privat

property.

1. Cites Entick v. Carrington : every invasion of private property, be it ever so minute, is

trespass.

2. Looks at historical roots of 4th Amendment: odious [British] practice of issuing gener

warrants was fresh in the memories of the drafters of the 4 th amendment.

3. great end for which men entered into society was to secure their property.

(Locke/Hobbes)

iv.Significance: Upon Boyd, SC built exclusionary rule and incorporated right/remedy into 5th

amend

v.Miller Concurrence:

1. This violates the 5th amendment as it is essentially a subpoena duces tecum, but does n

violate the 4th.

b. Gouled v. United States : 1921

i. Holding: Searches pursuant to warrants for the primary purpose of gathering evidence to be us

against a suspect in a criminal proceeding are a violation of the 4th amendment. It is only justif

when the primary right to such search and seizure may be found in the public interest or

complainant might have for the property to be seized. (Property view).

ii.Mere Evidence Rule: Items that have only evidentiary value in the apprehension or convictio

a person for an offense could not be seized.

1. Allowed: contraband, instrumentalities, and fruits.


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iii.Significance: Might have expanded Boyd: No special Significance in Papers.

c. Aftermath of Boyd:

i. Government can only obtain the following things:

1. Instrumentalities

2. Fruits

3. Contraband

ii.Problems with Boyd:

1. Made criminal investigation difficult

2. Limited to federal officials (did not apply to state actors)

iii.Beginning of the Death of Boyd:

1. Sanctity of property view dies down as government increased control over ownership,

and disposition.

2. Fundamental right to privacy view was gaining acceptance making this doctrine less

essential.

3. Thus, strict adherence to Boyd was only made when it would not interfere with

governmental regulation of economic activity.

4. Hale v. Henkel Boyd does not apply to corporations.

5. Shapiro v. US State has right to compel production of all documents people are legal

required to keep.

a. Legislature can acquire any and all information it wants from an individual.

6. Marron v. US allowed seizure of any instrumentality of a crime, even papers.

iv.Views of Boyd:

1. Traditional: Boyd as protection of property: Question: was the evidence owned by the

defendant?

2. Revisionist: Boyd as protection of privacy- right to be left alone.

d. Olmstead v. United States : 1928

i. Facts: warrantless wiretapping by government agents.

ii.Holding: because they are not tangible, conversations are not persons, house, papers, or effect

they are unprotected by the 4th Amendment. Eyes and ears cannot search or seize as neither ca

trespass.

iii.Trespass Doctrine: Physical penetration is a search. Since this was not tangible, there was no

search.

iv.Brandeis Dissent: 4th Amendment meant a right to privacy not just a right to be free from

trespass.

e. Silverman v. Untied States: 1961

i. Holding: Search occurred when spiked-microphone inserted into a wall and intruded minutely

the speakers side of the wall.

ii.Court did not base justification on the trespass doctrine. End of Trespass Doctrine.

f. Schmerber v. United States : 1966:

i. Facts: Petitioner is drunk and driving. He gets into an accident and injures himself. While at th

hospital, over the refusal of the petitioner, an officer instructs a physician to take a blood samp

This reveals he is drunk and they charge him.

ii.Holding: 5th Amendment only protects testimony or evidence relating to a communicative act.

1. 4th Amendment: 2 part test:

a. Were the police justified in requiring the petitioner to submit to the blood test?

(yes, because this was an emergency as alcohol in blood quickly dissipates)

b. Were the means and procedures employed in taking his blood respected relevan

the 4th amendment standards of reasonableness? (yes, performed by a doctor in

hospital)

2. Since no right to 5th, no right to 6th (just a sentence)


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iii.Dissents:

1. Black & Douglas Dissent: Cannot agree with distinction between testimony and a

communicative act and this test. This test was to elicit testimony from some person tha

petitioner was drunk. It was communicative because it was going to allow a witness to

communicate that the petitioner was drunk.

2. Warren and Fortas due process 14th amendment

a. No right to extract blood violence upon the person, or to use the results of suc

tort.

3. Evidence taken is tantamount to testimony.

iv.Significant:

1. Mere Evidence Rule: Compulsion which makes a suspect the source of real or physic

evidence (mere evidence) does NOT violate the privilege against self-incrimination.

g. Warden, Maryland Penitentiary v. Hayden : 1967

i. Facts: The defendant was convicted of armed robbery after his clothes were seized during a se

of his home and admitted into evidence without objection at his trial and used to convict him.

ii.Holding: End of mere evidence rule.

1. That an object has evidentiary value only (mere evidence as opposed to fruits, contraba

illegal goods, or instrumentalities) does not render its seizure unconstitutional. Search

valid bc there were exigent circumstances (hot pursuit)

iii.Policy:

1. The old distinction is reversed. It is not found in the text. Privacy is equally disturbed

regardless of the use to which the things are applied.

2. The old distinction created too much confusion and was arbitrary

3. Property ideas of Boyd are gone.

iv.Concurrence: Fortas & Chief Justice

1. No reason to overturn the mere evidentiary rule. The evidence used to have to be strict

tied to the exigencies of the search. (i.e. gun seized in hot pursuit ok, or fruits ok for ret

to rightful owner.

2. This case should have been decided within the old framework under the hot pursuit

exception.

v.Douglas Dissent: Reinterprets Boyd to create zones of privacy

1. One creates a zone of privacy that may not be invaded by police through raids, legislat

through laws, or magistrates trough warrants.

2. Second creates a zone of privacy that may be invaded either by police in hot pursuit or

SIA, by a magistrate through a warrant for probable cause, etc.

h. Fisher v. United States : 1976:

i. Facts: Tax cheats gave their sole proprietorships' tax records to their attorneys for review. Whe

the IRS subpoenaed the lawyers to produce the records, they refused asserting 5th Amend

protection against self-incrimination.

ii.Holding:Compelled production of business papers. 5th Amend privilege only appropriate wh

the act of producing the docs would self-incriminate D (authentication). Cannot be compelle

create a document, but can be compelled to produce a doc, as long as the act of producin

does not serve as authentication of doc by D.

1. If evidence is obtainable from the accused (not protected by 5th amend), it continues to

obtainable even after being transferred to a lawyer. Self incrimination protection is onl

available to the accused, so if he tells info to 3rd party, that party cant invoke the 5th

amendment.

iii.Policy: 5th amendment is not the protector of privacy; rather it is the 4th

iv.Act of producing them is not communicative enough to warrant 5th Amendment protection: y

reveal: These three things greatly help the prosecutor in authenticating the evidence for use at


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1. Their existence

2. Your possession

3. That you believe them to be what they are requesting

v.If government cant authenticate documents without act of production, they can grant

immunity for the act of production.

vi.The papers were obtainable from the accused b/c their existence and location were foregone

conclusions which were not incriminating, and producing the papers would not have the effect

authenticating them. (because they are business papers)

vii. He was not compelled to create these papers, simply to produce them.

viii.He could not authenticate b/c he did not create them (accountant did), so his production wou

not lend credence to the evidentiary value of the papers.

ix.Compulsion to create them would have been = to compulsion to testify, but thats not the case

here. If evidence is obtainable from the accused, it continues to be obtainable even after being

transferred to a lawyer. (Leaves open issue of whether personal papers are afforded special

protection but addressed in Andresen)

x.Contents arent protected, but govt must authenticate (must link docs to controversy and to D)

eliminate evidentiary significance of production of docs to subpoena the govt grants him immu

in production of the docs. The fact that he produces the docs cant be used against him.

xi.Brennan Concurrence: Corporate and private papers are different, have to look to the private

nature of the papers

i. Attempt to quash a Subpoena:

i. Odds of success are low: so why do it?

1. Slows government down and creates costs for the government

2. Learn more about government motives

3. Might be able to negotiate with prosecution to limit the scope of the subpoena

j. Immunity: 2 types:

i. Transactional Immunity

1. Cannot be prosecuted for any crime you revealed while testifying about another crime

(You are on trial for murder and admit to robbing the person as well. They have to

prosecute you for the robbery separately).immune for prosecution for any crime that

mention which is germane to the grant of immunity. (no immunity unless some how it

linked to the original crime)

ii.Use Plus Derivative Use Immunity

1. Government can overcome the 5th amendment if it provides protection which is

coterminous with (the same as) the 5th amendment protection.

2. Government cannot use my testimony against me, but it can prosecute me for the crim

discuss.

iii.If you compel testimony to find evidence. the murder weapon is there. You cant use the

statement (testimonial) and you cant use the murder weapon: derivative use.

iv.WHATS UP

v.Transactional immunity cant be prosecuted for exchanging information

vi.Use plus derivative use cant use my testimony against me, cant

1.

k. A n dresen v. Maryland : 1976:

i. Facts: Defendant convicted of fraud. With a search warrant, state seized evidence. Court used

evidence seized from him, including hand written notes, personal business papers, etc. Police

complied with process required by 4th amendment.

ii.Holding: The search and seizure of personal papers including handwritten notes does not viola

the 5th amendment.

iii.Rationale:


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1. He was not asked to do or say anything: 5 th Amendment designed to protect against the

government forcing the lips of the accused.

2. He voluntarily committed the evidence to writing himself.

3. Because this was a seizure and not a subpoena, the acquisition of the documents does n

aid the prosecution in authentication.

a. The defendant in a search is not subject to the trilemma of perjury, self-

incrimination, or contempt.

iv.Brennan Dissent: These documents only contained personal information.

l. United States v. Hubbell : 2000:

i. Facts: The second prosecution is an attempt to figure out if he kept that promise. While in jail,

was served with a subpoena calling for documents. He asserted his 5 th amendment rights and

refused to produce the documents. Then the prosecutor produced a 18 U.S.C. 6003 order

directing him to respond to the subpoena and granting him immunity to the extent allowed by

He then produced the documents.

ii.Holding: 5th Amendment applied to a compelled production of documents when there is a

testimonial aspect to them.

1. Even though the government didnt need to rely on the production for authentication a

trial, it still used the documents to learn more about the crime.

2. In Fisher, Government knew about documents and could confirm their existence and

authenticity, here no.

3. The respondents motion to dismiss the indictment on immunity grounds must be

granted unless the government proves that the evidence it used in obtaining the

indictment and proposed to use at trial was derived from legitimate sources wholl

independent of the testimonial aspect of respondents immunized conduct in

assembling and producing the documents described in the subpoena.

4. Subpoenas need reasonable particularity to show that it is a foregone conclusion that

documents exist (like in Fisher)

iii.Rehnquist Dissent: manna from heaven. State should be able to get this and use it, but polic

must be able to authenticate it entirely separately.

iv.Thomas Scalia Concurrence:

1. Thinks Fisher wrongly decided and Court should be more in line with Boyd and not

restricted to the testimonial aspects of the case.

2. Embrace Justice Blacks view in Schmerber: Evidence taken is tantamount to testimon

m. Confession v. Admission:

i. Confession: I am guilty of a crime

ii.Admission: Conceding a fact (I know where the murder weapon is). Provides circumstantial

evidence of guilt.

n. Themes: Krauss:

i. Warren Court chose Due Process Model (Schmerber & Warden)

ii.Burger Court chose Crime Control Model (Fisher & Andresen)

10.The 4th Amendment Exclusionary Rule

a. Provides that evidence obtained in violation of ds constitutional rights will be excluded from trial.

b. Rationale = deterrence (if police know evidence seized wont be admissible, they are less likely to

conduct illegal S&S. Remedy that discourages police from violating a persons 4th, 5th, or 6th Amend

rights

i. Deterrence

1. Two theories

a. Actually deters; or

b. Police count on the fact that the rule is rarely applied and doesnt affect searche

and seizures that dont result in prosecutions.


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c. Exclusionary Rule is better than the alternatives.

i. If cops were paid by arrest they would arrest more, this would be bad

ii.If they were penalized for illegal searches, they would search less

iii.If there was liability, government would remove officers from areas with greater liability

abandoning the areas most in need.

1. Why not tort action? Cause then the taxpayers have to pay.

d. History of 4th Amendment:

i. Fourth amendment plays two great roles.

1. First is as the chief source of privacy protection.

a. All invasions on the part of the government and its employees into the sanctity

mans home and the privacies of life.

b. But it was limited to the federal government only which was small, until Mapp

ohio which gave the amendment its teeth.

2. Second is the actors being regulated: applies to all government actors but is almost alw

enforced against police officers.

ii.Source of 4th amendment

1. Entick v. Carrington : UK case where house of pamphleteer was searched under a warr

that seized his books and papers, he sued for trespass and won

2. Wilkes v. Wood : UK case where house of pamphleteer was searches under a warrant th

neither named the suspects nor specified places to be searched. He also sued for trespa

and won.

3. Writs of assistance case : MA case against searches of any place where smuggled good

might be concealed. Argued they lacked legal authority and lost. But Adams cites them

beginning of the revolution.

iii.Silver Platter Doctrine: FBI evidence cannot be used in state prosecutions (FBI evidence w

have been excluded, so they cant get around that by giving it to the states.

1. Now overturned because everyone uses the exclusionary rule.

iv.Mapp v. Ohio : 1961

1. Facts: officers receive a tip that defendant had policy paraphernalia in her home. Wh

the officers knock, she denies them entry without a search warrant. Officers then kick i

the door, produce a fake warrant, handcuff the defendant, deny the admittance of her

attorney and search everything and uncover the photos.

2. Holding: 4th Amendment exclusionary rule applies in state criminal trials, just as it doe

the federal system under Weeks.

a. Overturns Wolf v. Colorado which held that the states could make up their own

minds of whether or not to adopt the exclusionary rule.

3. Problems:

a. Tough justify through the text of the 4 th amendment which does not apply this

remedy.

b. Doesnt apply to illegal searches that do not result in a trial.

4. Significance:

a. If police dont search because of this, we never know what they may have foun

but if they do search and they find evidence and it is excluded, then its harder to

take. So its easy to see the costs and not see the value.

b. Exclusionary Rule: has supposed effect of returning everything to the position t

were in before the police intruded. But we are denying valuable information to

jury. But this isnt the end of the prosecutions case in most circumstances as th

can put on other evidence.


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c. Exclusionary rule might incentive plea bargains because parties and police are

unsure whether motion to suppress will win. So this means police should intrud

because they are likely to get a plea.

5. Policy: Balancing test between law enforcement and protection of citizens and intrusio

into peoples privacy.

6. Black Concurrence: 4th amendment alone doesnt justify the Exclusionary rule, must

consider it with the 5th amendment.

e. Cardozo critique:

i. Too lax: only a remedy to those charged with a crime, rule applies only to official state actors

ii.Too strict: what if there is a negligent violation (2 year investigation wasted for procedural fuc

up)

f. Akil Amar: The Future of Constitutional Criminal Procedure

i. Exclusionary rule gives windfalls to the guilty (suppression of evidence) but nothing to the

innocent person they are just harassing.

ii.The constitution protects the innocent and the guilty only so far as is necessary to protect the

innocent.

iii.Truth and Accuracy are the values of the bill of rights. We should not throw out reliable evid

iv.Textalist Argument that the 4th Amendment doesnt support the exclusionary rule.

11.4th Amendment Searches and Seizures

a. 4th amend: 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, andparticularly describing the place to be search

and the persons or things to be seized.

b. What does the 4th Amend require? (2 elements):

i. Reasonableness

ii.Warrant

1. Issued by . . . Neutral and Detached Magistrate

2. upon showing of . . . Probable Cause

3. supported by . . . Oath or Affirmation (i.e. affidavit)

4. Particularity

c. How Justified?

i. Police must have justification BEFORE the search or seizure. A successful search does not ju

the search after the fact. (Draper)

d. Katz v. United States : 1969

i. Facts: Katz arrested for gambling conversations he had with people from a phone booth. The f

put a listening device on the outside of the public phone booth and used this evidence to convi

the defendant.

ii.Holding: Illegal search and seizure.

iii.Rationale: Katz had a reasonable expectation of privacy (from listeners) when he entered the

telephone booth and closed the door (even though he was still visible to the public). 4th Ame

protects people not places. What a person knowingly exposes to the public, even in his own h

is not protected by 4th Amend, but what he seeks to preserve as private, even in a public area,

be. Conversations made in public can be seized (they are material objects).

1. He sought to protect not against the eye, but against the uninvited ear.

iv.Significance: Overruled physical penetration or trespass doctrine.

1. Searches without warrants are per se unreasonable.

v.4th Applies to people not places.

1. Comes with good and bad, might lead to standing

vi.Harlan Concurrence: 2 prong test:

1. Reasonable expectation of Privacy Test:


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a. Subjective Prong: Individual must have exhibited an actual (subjective)

expectation of privacy.

b. Objective Prong: He must also prove that the expectation he exhibited is one t

society is prepared to recognize as reasonable, legitimate, justifiable, etc.

2. Factors to consider:

vii.Factors:

1. Locations uses

2. Societal understanding that certain areas deserve more protection.

e. Problems with Katz

i. Government can get rid of subjective expectation of privacy (just tell everyone no privacy)

f. Hoffa v. United States: 1967

i. Holding: Court allowed evidence from informant who gained the confidence of the suspect an

elicited statements from him because it involved only a wrongdoers misplaced belief that the

person in whom he confided would not reveal his wrongdoing.

g. Lewis v. United States : 1967

i. Holding: 4th amendment not violated when a federal agent misrepresented his identity and purp

and thereby obtained an invitation to the defendants home where an illegal sale of drugs occu

in the agents presence because his activities on the premises were within the scope of the

invitation.

h. Lopez v. United States : 1963

i. Holding: No search occurs when an undercover agent consensually enters a criminal suspects

premises with a hidden tape recorder on the agents body and there engages the suspect in

incriminating conversations.

i. On Lee v. Untied States :1952

i. Facts: Suspected that D had drugs in her apartment, the police persuade a friend to visit her to

confirm the existence of the drugs. The police arrest D based on friends observations.

ii.Holding: No search occurs when an undercover agent consensually enters a criminal suspects

premises with a hidden transmitter on the agents body and there engages the suspect in

incriminating conversations.

j. Difference between these cases and Katz:

i. In Katz defendant did not know that anyone was listening. Here defendant spoke to someone.

ii.All of these cases were treated as business deals and the undercover agent was invited in.

k. United States v. White : 1971:

i. Facts: Defendant arrested for drugs. Informant let officers hide in his closet and wore a wire th

the agents could use to hear the conversations in his car and at a restaurant. The prosecution w

unable to produce the informant at the trial, so the agents testified.

ii.Holding: Informant or Undercover agent wearing wire tap does not require a warrant.

1. No reasonable expectation of privacy that the person who are speaking to will not

reveal the conversation.

iii.Policy: This will aid in accuracy and reliability of evidence. Less subject to confounding by

cross-examination, no threats or injuries to witnesses, better than un-aided memory of officers

1. Majority White: looks at reasonable standard of expectations is for those contemplating

illegal activities.

2. Vs. Harlan: Looks at expectation of privacy of innocents citizens in a free society, and

law abiding members of society

iv.Significance: You assume the risk that the person with whom you speak is going to convey th

information to police.

1. Reasonable Expectation of guilty person.

v.Rationale: Cites Hoffa. If he has no expectation of privacy against an informant, why would h

one against an informant who is transmitting the conversation?


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vi.Harlan Dissent: 2 assumptions of majority:

a. There is no greater invasion of privacy in the third-party situation

b. Uncontrolled consensual surveillance in an electronic age is a tolerable techniq

of law enforcement given the values and goals of our political system.

2. Because this is a more extensive intrusion into our privacy, it requires a stronger

protection: a warrant.

3. Policy: this undermines the confidence and security characteristic of individual

relationships between people.

4. Hoffa didnt have a third-party. With third-party, it insures full and accurate disclosure

of the possibility of error.

5. People would act differently if they knew everything were being recorded, than merely

remembered. We expect people to overlook and forget a great deal of what we say.

6. Says that majority overlooks how this subjects all people to this, not just innocent, and

doesnt throw out evidence, merely requires a warrant.

7. Issue here faces the public generally, not just the guilty.

vii.Douglas

1. Free discourse is hurray

l. Distinguish Katz from White:

i. There is no 4th Amend protection for a misplaced belief that a person whom he voluntarily

confides will not reveal the information. When a person misplaces trust, and makes incrimina

statements to an informer, he does not have any justifiable expectation of privacy which has b

violated.

ii.Person who Katz was speaking with was not an informant

iii.Significance: White narrows protectionperson with whom we speak

m. CA v. Greenwood

i. No protection for garbage.

ii.Applies Katz doctrine

n. Open Fields Doctrine

i. Oliver v. United States : 1984:

1. Facts: Officers without search warrants enter private property ignoring no trespassing s

and observe marijuana.

2. Holding: No reasonable expectation of privacy in open fields.

a. Entry into and exploration of open fields does not amount to a search within th

meaning of the 4th amendment.

b. Trespassing by law enforcement officials into open fields in not a fourth

amendment search.

3. Policy: This is not the enclave envisioned by the framers to be free from government

interference.

ii.United States v. Dunn : 1987

1. Facts: Court distinguished between a barn located 50 yards from a fence surrounding

defendants residence as OUTSIDE of the curtilage.

2. Holding: 4 factors to distinguish if area is within or outside of curtilage:

a. Proximity of the land to the house

b. Whether the area is included within enclosures surrounding the house

c. The nature of the use to which the area is put

d. Steps taken by the resident to protect that land in question from observation

3. Curtilage: land immediately surrounding and associated with the home.

a. Curtilage is encompassed within the term houses in the 4th amendment, but rece

somewhat less protection that the interior of the house itself.

iii.California v. Ciraolo : 1986:


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1. Facts: police officer obtains a private plane to fly over the backyard and observes

marijuana plants.

2. Holding: While this area was within the curtilage, it did not constitute a search.

3. Fails both prongs: Subjective: while there was a fence, cops on passing trucks still cou

have seen it

a. Objective: police shouldnt have to look the other way when seeing a crime; an

cops could observe crimes here from a public vantage point.

o. California v. Greenwood : 1988

i. Facts: Officer asks garbage man to collect and turn over suspects garbage to her. The garbage

contained items indicative of drug use. They then arrested the suspects and found more drugs.

They then posted bail. Then there were more visitors, more garbage collections, more evidenc

and another arrest.

ii.Holding: No reasonable expectation of privacy in your garbage.

1. 4th amendment does not protect information knowingly exposed to the public

2. One cannot have a reasonable expectation of privacy in information voluntarily turned

to others.

iii.Rationale: Here the suspects knowingly places their trash on the curb where it could be access

by children, animals, snoops, etc. It was intentionally conveyed to the trash collector.

iv.Brennan Dissent:

1. 4th amendment protects closed packages against inspection. The fact that he intended to

discard rather than transport should not make the materials any less private. Greenwoo

did not expose the trash to the public, but the sealed trash bag.

2. The county ordinance forced him to do this, how can we fault someone for that.

3. Relinquishment of possession does not mean you lose a privacy expectation (like a lett

4. Most people dont want others going through their trash.

5. The fact that someone might intrude (like a burglar) doesnt negate the privacy

expectation.

12. Seizures

a. United States v. Mendenhall : 1980

i. Facts: Officers stop a woman in the airport and request her documentation.

ii.Holding:: A seizure is: in the view of all the circumstances surrounding the incident, a reason

person would not have believed that he was free to leave.

iii.Justice stewart gave factors which might suggest that a given police encounter was a seizure f

4th amendment purposes: (i) the threatening presence of several officers; (ii) the display of a

weapon by an officer; (iii) some physical touching of the person of the citizen; (iv) tone of voi

or use of language implying cooperation was required.

b. Brower v. County of Inyo: 1989

i. Facts: dealt with whether police had seized defendant when they set up a road block to stop hi

a stolen car which killed him.

ii.Holding: Violation of the 4th amendment requires an intentional acquisition of physical contro

1. A 4th amendment seizure occurs ONLY when there is a governmental termination of

freedom of movement through means intentionally applied.

a. So police intent does matter (objective intent)?

c. Ho dar i v. California : 1991

i. Facts: Suspect discarded cocaine just before being tackled, but after fleeing, D contends that th

seizure occurred at the moment of pursuit, not tackle, making the evidence inadmissible.

ii.Holding: Thus seizure is either: (i) seizure by physical force; or (ii) show of authority plus

submission.

iii.To what extent is fleeing from the police sufficient to provide probable cause to warrant an

arrest? On its own, no. But together with other evidence, yes.


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iv.Dissent: Police may now chase people without reasonable suspicion in the hopes that in the

process of fleeing they do something incriminating.

a. Florida v. Bostick : 1991

i. Facts: Two officers board a bus and pick out a passengerwithout reasonable suspicion and

to search his bags. He consents. Inside the bags they discover narcotics. Officer does tell passe

he has a right NOT to cooperate.

ii.Holding: This was not an unreasonable seizure. Case remanded to see if reasonable person wo

have felt free to leave the encounter.

iii.Proper Test: Objective Test: Whether a reasonable person in an already immobile condition

the time of the police encounter would feel free to decline the officers request or otherwise

terminate the encounter.

iv.Marshall Dissent:

1. Real issue is not whether passenger in respondents position would have felt free to den

consent to the search of his bag, but whether such a passenger without being appris

of his rights- would have felt free to terminate the antecedent encounter with police.

2. Marshalls answer no.

3. Other than complying, he had two options:

a. Refuse to answer questions, but this would have aroused officers suspicions; o

b. Tried to escape officers presence by leaving the bus.

v.What counts in Bostick test?

1. Not the officers subjective intentions

2. Not the suspects subjective feelings

3. So this is like the Katz Reasonableness test.

b. United States v. Drayton : 2002

i. Facts: Another bus stop. This time the officers do not tell the suspects that they do not have to

cooperate.

ii.Holding: The officers gave the passengers no reason to believe that they were required to answ

the officers questions.

1. Relies on fact that cops didnt pull their guns.

2. Left aisle free so people could exit

3. Spoke to the passengers one by one in a polite, quiet voice,

iii.Significance:

1. Extended Bostick by not requiring police officers to inform the defendants of their righ

refuse to cooperate.

iv.Dissent:

1. When police boarded the bus and announced that they would like cooperation, this set

scene that this was not a consensual exercise. And the bus would not leave until the

interdiction was finished.

2. Probable Cause

a. 2 parts of 4th Amendment: p. 53 in Dressler

i. Amsterdam v. Taylor

1. Taylor argued that framers sought to limit the abuse of general warrants. Thus by requi

warrants and probable cause, the S.C. turned the 4th amendment on its head.

2. Amsterdam responds:

a. Framers anted repudiation of general warrants, so it condemns them as

unreasonable.

b. Framers accepted specific warrants as reasonable as the second clause tells us.

indiscriminate character is what general warrants did wrong. This is the basis o

PROBABLE CAUSE requirement.


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c. Best way to protect against arbitrary and unjustified searches is the warrant

requirement and probable cause.

b. Definitions of Probable Cause:

i. Brinegar v. United States : 1949: when the facts and circumstances within the officers knowled

and of which they had reasonably trustworthy information are sufficient in themselves to warr

man of reasonable caution in the belief that an offense has been or is being committed.

ii.Nathanson v. Untied States : 1933. Probable cause is not a mere hunch.

c. Draper v. United States : 1958:

i. Facts: Informant, who had given reliable information in the past, told officer that Draper was

peddling narcotics in Denver and that he had gone back to Chicago to bring back 3 ounces of

heroin and told him exactly when Draper would return. Informant gave detailed description o

what Draper was wearing and the bag he would be carrying. Officer went to train station and

arrested him, and searched him, finding heroin

ii.Holding: Police must corroborate the evidence.

iii.Spinelli Reinterprets: Looks at the future predictive nature of the tip and indicating that the

informant is relaying more than a casual rumor occasion based merely on the suspects reputat

d. Spinelli v. United States: 1969

i. Holding: 2 prong test for determining trustworthiness of an informants tip. (you need to satisf

both prongs for probable cause).

1. Basis-of-knowledge Prong:

a. How did the informant get this knowledge?

2. Veracity Prong

a. Why should I [the magistrate] believe this person?

b. Typically proven by shown that the informant has proven reliable in the past.

ii.Criticism: Too rigid, one should be able to compensate for the other.

e. Illinois v. Gates: 1983

i. Facts: Defendants indicted for a violation of state drugs laws after officers executing a valid se

warrant discovered marijuana and other contraband in their automobile and home. Police led t

suspects from an anonymous tip (letter in the mail). They were then able to corroborate some o

the facts relied upon in the letter (Address, flights to Florida, trip to florida, Illinois car in Flor

registered to gates, hotel room in wifes name, left Florida driving towards IL). Officer then

signed an affidavit re these facts and along with the anonymous letter submits them to a judge

issues a search warrant of the car and home. When Gates arrived home, officers were awaiting

them, executed the warrant and uncovered drugs, weapons, contraband.

ii.Holding: While the letter in Gates would fail the veracity prong of the Spinelli test,

1. Replaces Spinelli with Totality of the Circumstances Test.

2. Spinelli Factors are still highly relevant, but now you dont need to satisfy both of th

as one can compensate for the other.

iii.White Concurrence:

1. Under this logic about veracity, a conclusory statement by an experienced police office

should be sufficient for probable cause. But the SC does not see it this way.

iv.Criticisms of Gates:

1. Hard to predict the outcome

2. Easier to get a warrant

f. Do defendants learn the identity of the informants?

i. Generally not. (protect informant and incentivize them coming forward). Judge can make

informant appear before him. Judge can use hearsay evidence

g. Is there ever a case where informants identity must be disclosed?

i. If informant has information about the commission of the crime

h. Informants identity hidden when relating to probable cause.


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i. Ornelas v. United States : 1996

1. Facts: Officer notices car parked in motel parking lot. Noticed it because: (i) it was an

older model and a favorite for drug couriers because it was easy to hide things in; and

he had a California license plate and CA is a source state. The officers then contact

NADDIS and find out both men are drug dealers. When the suspects leave the motel fo

the car, the officer approaches them and asks them if they have any illegal drugs or

contraband. They respond no. They then consent to the search (suspects contest this).

Inside a panel in the car the cocaine is found.

2. Holding: Appellate Courts review probable cause de novo, not deferentially.

a. Should still use deferential treatment for factual findings and credibility

because they hear the evidence and are better positioned.

ii.Maryland v. Pringle : 2003

1. Facts: Defendant was a passenger in a car stopped for speeding. The officer asked the

driver for his license and registration and when he opened the glove box, saw a wad of

bills. He went back to his car and saw there were no warrants for any of the defendants

then asked to search the car. The search revealed cocaine near the passenger seat. The

officer asked whose it was and threatened to arrest all three if no one came forward. Al

three were arrested and the defendant later confessed the drugs were his.

2. Holding: This was probable cause

3. Common Enterprise Principle: car passenger and driver often engage in a common

enterprise and have the same interests in concealing the fruits or evidence of their

wrongdoing.

iii.Ybarra v. Illinois : 1979

1. Facts: Police has search warrant for bar and bartended. P is a customer, they search him

and find drugs without probable cause to search him individually.

2. Holding: Need to have probable cause to search him individually.

3. The Warrant Requirement (2nd half of the 4th dominating).

a. Background

i. Elements

1. Issued by . . . Neutral and Detached Magistrate

2. upon showing of . . . Probable Cause

3. supported by . . . Oath or Affirmation (i.e. affidavit)

4. Particularity Warrant has:

a. Affidavit

b. Judge's authorization

c. Return - prepared by police after search indicating what they found and where

search. They leave a copy at place of search and file one with court.

ii.Determined using totality of circumstances before the invasion (informants info and otheravailable facts)

b. Policy of Warrant: Insures Probable Causei. Also, dont want police to err in judgments over probable cause, rather, impartial person (judg

ii.Dont want judges deciding after the fact because they might be prejudiced by what was found

iii.Requires the police to identify the information that they have at the time, so that they cannot a

information later obtained via the search.

iv.By seeking warrants, police can learn whats expected of them.

v.Raises the costs of getting warrants deters frivolous searches

vi.Protects police from civil liability

c. Values:

i. Democracy

ii.Individuality


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1. Defendant is a proxy of us all: innocent and guilty alike.

2. How do we reconcile these: Utilitarian balancing test

d. Arguments against the warrant requirement

e. The Oath or Affirmation Requirement

i. Usually satisfied by specifying the facts giving rise to probable cause in a police officers affid

that is attached to the warrant application. Oral statements may also be sworn.

ii.Negligent or innocent falsehoods will not invalidate a warrant. But reckless or perjurous can, i

remaining content is insufficient to establish probable cause. Franks v. Delaware.

f. The Magistrate

i. Required to be neutral and detached.

ii.Coolidge v. New Hampshire : State AG cant issue a warrant in case he is investigating.

iii.Connally v. Georgia : Magistrate cant receive a fee for issuing warrants but not for refusing th

iv.Critics argue Court has failed to do much else and that rubberstamp method is susceptible to

scandal.

v.Shadwick v. City of Tampa: Clerks without law degrees can issue warrants for municipal

violations.

g. The Particularity Requirement

i. 4th amendment requires warrants particularly describe the place to be searched, and the person

things to be seized.

ii.Place to be Searched: Steele v. US: the description should be particular enough to permit an

officer with reasonable effort to ascertain and identify the place intended.

iii.Maryland v. Garrison: If officers search the wrong place, as long as the officers failure to real

the breadth of the warrant was objectively reasonable, it was ok (officers searched wrong 3 rd fl

apt and uncovered contraband).

iv.Particularity requirement for items sought to be seized serves several purposes:

1. Supports probable cause, if officers cant articulate what they want, there probably isnt

probable cause

2. Limits legitimate scope of the searches both spatially and temporally.

3. Helps ensure people will not be deprived of their property.

v.However, can still seize anything in plain view

vi.Andrerson v. Maryland: and can be vague because CT interprets it as pertaining to the crime

suspected. other fruits, instrumentalities, and evidence of crime at this time unknown.

h. Stuntz:

i. Stuntz argues warrants fulfill two roles: (i) doesnt let after-the-fact probable cause

determinations be biased by knowledge that incriminating evidence was found; and (ii) police

would be more likely to lie in suppression hearings if they didnt have to state the relevant fac

before the search.

i. The Execution of Warrants: Knock and Announce Requirement

i. Originated from reasonableness of 4th amendment.

ii.Wilson v. Arkansas : 1995: Absent some law enforcement interest establishing the reasonablen

of an unannounced intrusion, 4th amendment requires officers to knock and announce themselv

before entering and executing the warrant.

iii.Richards v. Wisconsin : 1997: Supreme Court rejects per se rule that felony drug investigation

always permit no-knock entries. In order to justify a no-knock entry: police must have a

reasonable suspicion that knocking and announcing their presence, under the particular

circumstances, would be dangerous or futile, or that it would inhibit the effective investigation

the crime by, for example, allowing the destruction of the evidence.

1. No Blanket Rule for Drugs


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iv.US v. Ramirez: 1998: Richards standard applies even where officers must damage property to

make their unannounced entry. Touchstone of reasonableness highlighted. Unnecessary or

excessive destruction of property during a search may violate the 4th even if the entry is lawful

v.SC has recently held that failure to knock and announce does not require suppression of evide

vi.Policy:

1. Purpose of K+A

a. To protect police, so that defendant doesnt think they're burglars

b. Prevent property damage

c. Protect privacy interest

d. To direct police to where they should search

2. Where in the Fourth Amendment is the K+A doctrine?

a. Not explicit. See Wilson v. Arkansas above. Common law requirement. Requir

by Federal Law for Federal police to K+A, and then Justice Thomas and Scalia

codified it in the Constitution.

vii.United States v. Banks : 2003

1. Facts: Suspect wanted for cocaine possession. Officers announce and knock. Defenda

the shower and doesnt hear until officers open door with a battering ram 15-20 second

after first knocking. Contraband and weapons found inside of the home.

2. Holding: This was an okay time to wait. Entry justified.

3. Rationale: Drugs could have been flushed within much longer.

j. Sneak and Peak Cases: Unannounced and covert entry in which notice of the search is delayed.

i. US v. Villegas: Sneak and Peak warrants: where no notice till after the search can be valid for

good reason.

ii.Notice may be delayed in all federal cases if:

1. Court finds reasonable cause to believe that providing immediate notification of the

execution of the warrant may have an averse result;

a. Endangering life or property of individual; flight from prosecution evidence

tampering; witness intimidation; etc.

2. The warrant prohibits the seizure of any tangible property except where the court finds

reasonable necessity for the seizure; and

3. The warrant provides for the giving of such notice within a reasonable period of its

execution which period may thereafter be extended by the court for good cause shown

iii.Courts found seizures were necessary in these sneak-and peak cases:

1. To prevent jeopardizing the investigation by protecting the safety of confidential

informants;

2. To prevent compromising an investigation by preventing the removal or destruction of

evidence; and/or

3. To seize controlled substances that are inherently dangerous to the community.

k. First Amendment

i. Stanford Daily v. Zuercher : 1978: Court refused to limit warrants when they wanted to search

newspaper officer.

1. Holding: First amendment not a bar in the search

2. Congress passed a law against this type of search.

4. Exceptions to Warrant Requirement

a. Exigent Circumstances

i. Warrantless Searches must end when exigency ends

1. Mincey v. Arizona : 1978

a. Facts: Officer arranges to buy drugs from defendant. He leaves to get money an

returns with nine other plain clothes officers and a deputy county attorney. Wh

he knocks the door is opened by not the defendant, but by his acquaintance, one


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three who was in the living room of the apartment. When the acquaintance ope

the door, the officer slipped inside, and then the other officers forced their way

the door. As the police entered a shootout happened in the bedroom and the off

was injured and later died and the defendant was shot. Police on the scene

performed a search looking for other victims and found them. They did nothing

else because there was a policy of not investigating an incident in which they w

involved.

b. Holding: Exigent Circumstances not present.

i. Warrantless search not okay simply because it was a murder scene.

c. Exigent circumstances include: (i) evidence likely to be lost, destroyed, or

removed; or (ii) warrant would not be easy to obtain.

2. Flippo v. West Virginia : 1999

a. Defendant called police to report that they had been attacked. When police arriv

they find defendant and his dead wife. Officers close the area and conduct an

extensive 16 hour search during which they opened a briefcase and seized

photographs and negatives.

b. Holding: No exigent circumstances.

i. Officers should not be required to get a warrant when they cant

feasibly do so.

ii.Fleeing Suspects

1. Warden v. Hayden : 1967

a. Facts: Defendant is a robber who takes off running. Two cab drivers follow him

and call the cops and tell them he is in a house. Cops search the house without

warrant.

b. Holding: Exigent Circumstances existed

i. Police had the right to search any place in the home where the armed

robber, anyone who might interfere with the arrest, and/or weapons mig

be found.

c. Rationale:

i. Requiring a warrant here might have gravely endangered the lives of oth

Speed was essential, and only a thorough search of the house for person

and weapons could have insured that Hayden was the only man present

that the police had control of the weapons which could be used against t

in an escape.

iii.Destruction of Evidence: Fear that if officers do not act immediately, evidence will be destroy

1. Mendez v. Colorado: 1999

a. Facts: Cops smell marijuana burning while on an unrelated call. They get hotel

manager. They get manager to open the door and discover defendants in the pro

of flushing the marijuana.

b. Holding: Where there is a real and substantial likelihood that contraband would

continue to be destroyed before a warrant could be obtained, the warrantless se

is warranted.

2. United States v. Dickerson : 1999

a. Facts: Officers had knock and announce warrant to search Ds house, but find h

outside and after a noisy confrontation arrest him. They then enter the house

without any announcement (no warrant).

b. Holding: Court held this was ok because there might be others in the house who

having heard the noisy confrontation, would be destroying the evidence).

3. United States v. Johnson : 1999


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a. Facts: Police went to apartment under knock and talk practice. When about t

knock D opens door and refuses cops entry. Cops claim they see woman inside

throw a crack pipe. This testimony was not believed. They then frisked the D an

entered the apartment finding drugs and guns.

b. Holding: Entry here was not allowed. No reason to enter if evidence is not

believed.

c. No probable cause for arrest here.

iv.Community Caretaking and the Simpson Search: Court fairly quick to find exige

criminal justice outline

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