I. INTRODUCTIONa. A Criminal Case

i. U.S. v. L.O. Ward 1980: Civil penalty, no Fifth Amendment problem. Hazardous dumping

ii. Allen v. Illinois 1986: Sexual offender commitment proceedings designated civil by statute. Designation matters.

iii. Kansas v. Hendricks 1997: Even if permanent commitment after jailing, can still be civil if measure isn’t punitive, and is designated by statute

iv. Smith v. Doe 2003: Sex offender registration is civil.b. Incorporation

i. Barron v. Baltimore 1833: BoR applies only to Federalii. Hurtado v. California 1884: Right to be indicted by grand jury does not apply to

the states.iii. Twining v. New Jersey 1908: Privilege against self-incrimination not binding on

statesiv. Palko v. Connecticut 1937: Implicit in the concept of ordered liberty. Is it

absolutely impossible to have a fair trial without this right?v. Duncan v. Louisiana 1968: Selective Incorporation: 14th amendment protects

rights fundamental in the context of criminal processes maintained by the American States.

vi. McDonald v. City of Chicago 2010: Right to bear arms fully applicable to the States. Fundamental to our scheme of ordered liberty and system of justice?

vii. Three Options1. Total (Whole BoR applies to States)2. Selective (Prevailing test): Fundamental to Anglo-American scheme of

justice3. None (Barron)

c. Retroactivityi. Griffith v. Kentucky 1987 (Harlan): Retroactivity for cases on direct review.

ii. Teague v. Lane 1989: Don’t apply retroactively to cases on collateral review (habeas) unless new rule makes crime no longer a crime or the new rule is fundamental to a system of ordered liberty.

1. Note: Griffith and Teague decisions were the Harlan dissent in Desist.iii. Collins v. Youngblood 1990: Teague not applied sua sponteiv. Yates v. Aiken 1988: Applying settled precedent not a “new” rule, and thus is

completely retroactivev. Butler v. McKellar 1990: If all “reasonable” minds would have viewed the “new”

rule as following precedent, not actually newvi. Johnson v. Texas 1993: Rejecting habeas reasoning can later help reject on

meritsvii. Williams v. Taylor 2000: Habeas review only if State violated “clearly

established” law. AEDPA codifies Teague. State application examined as law was when applied.

viii. Davis v. U.S. 2011: Good faith application of old rule before new rule can bar remedy, because no deterrence.

ix. Danforth v. Minnesota 2008: States can allow more retroactivityx. Lockhart v. Fretwell 1993: Detrimental changes in law apply retroactively to

habeas petitioners. Essentially states benefit but defendants don’t.xi. Policy Problems

1. Reliance: LEO need to be able to reasonably rely2. Overburden: Trial courts would be slammed if every decision was

retroactiveII. SEARCH AND SEIZURE/ FOURTH AMENDMENT

a. Fourth Amendment: People have right from unreasonable search and seizure. Warrants must be based on probable cause and be specific to place to be searched and persons or things to be seized. Warrant clause predominates (Presumed unreasonable if no warrant).

b. U.S. v. Verdugo-Urquidez 1990: 4th Amendment protects people in the U.S. from the tyranny of the U.S. govt. Need to be connected enough (Mexican citizen in Mexico not enough).

c. Katz v. U.S. 1967: FBI bugged phone booth, strong probability of illicit activities, surveyed only Katz’ conversations. Government violated his expectation of privacy

i. 4th Amendment protects people and not placesii. Two-Pronged Test (Harlan Concurrence)

1. Subjective manifestation of privacy expectation2. Societally reasonable expectation

iii. Trespass Analysisd. U.S. v. Jones 2012: Expired warrant, tracking device on car. Occupation of private

property for purpose of obtaining information.i. Physical Intrusion was a search. (Trespass analysis still valid).

ii. Sotomayor: Wants 3rd Party Disclosure doctrine, because of vast relinquishing of private information daily during mundane tasks

e. Florida v. Jardines 2013: Narcotics dog on porch sniffed around indicating narcotics in house

i. “Open fields” not protected. But curtilage (immediately surrounding/adjacent area to house) protected by 4th Amendment.

ii. Physical intrusion onto curtilage.f. Kentucky v. King: Knock and talks allowed, as anyone could do it. But no dog. Intention

irrelevant.g. U.S. v. Place: No privacy interest in illegal activity. h. Texas v. Brown 1983: Search and seizure are two separate protected things, and need

not be concurrenti. Soldal v. Cook County 1992: Seizing with no search (towing trailer) covered by 4th.j. Subjective Manifestation

i. Smith v. Ohio 1990: Reaching for bag thrown on hood of car manifests intention of privacy. Not abandonment.

k. Open Fields

i. Hester v. U.S. 1924: Open fields not constitutionally protected.ii. Oliver v. U.S. 1984: Footpath around gate into marijuana field. Not protected.

1. Only areas around home protected2. No social interest in privacy in open fields3. Beyond curtilage not protected

iii. U.S. v. Dunn 1987: Four Factors of curtilage1. Proximity to home2. Within an enclosure surrounding the home?3. Nature of the uses to which the area is put4. Steps taken by resident to prevent observation by passers-by5. NOTE: Visual inspection from outside curtilage not a search

l. Access by Members of the Publici. Consensual Electronic Surveillance

1. U.S. v. White: One who commits a crime assumes the risk that their companion may report to police (or be bugged in this case).

ii. Financial Records1. U.S. v. Miller 1976: Depositor allows records to be accessible to bank, so

no reasonable expectation of privacy.iii. Pen Registers

1. Smith v. Maryland 1979: Pen register on phone not a search, because phone company can see numbers.

2. Note: Phone provider must give consent, or court must issue order.iv. Trash

1. California v. Greenwood 1988: No expectation of privacy in trash if sufficiently exposed to public. Empirical test, as most people don’t look through trash but legally can.

v. Public Areas1. Homeless expectation of privacy to effects (Connecticut v. Mooney C)2. Peering in gap of bathroom stall not search (U.S. v. White C)

vi. Aerial Surveillance1. California v. Ciraolo 1986: Public vantage point not a search.2. Dow Chemical Co. v. U.S. 1986: Aerial photographs by EPA allowed.3. Ordinary Overflights Florida v. Riley 1989: Empirical test, hovering

helicopter ok (Note concurrence wants normative test).vii. Manipulation of Bags in Public Transit

1. Bond v. U.S. 2000: Excessive manipulation of bag in public transit is search. Normative test.

2. NOTE: Both normative and empirical used by Supreme Court, with no real explanation of why which when.

m. Investigation That Can Only Reveal Illegal Activityi. Canine Sniffs

1. U.S. v. Place 1983: Dog can only detect illegal contraband. Sniff of closed suitcase not a search. CANNOT detain luggage before sniff.

ii. Dog-Sniff of a Car During a Routine Traffic Stop

1. Illinois v. Caballes 2005: Lawfully seized for traffic violation, dog-sniff ok, BUT can’t extend stop

iii. Chemical Testing for Drugs1. U.S. v. Jacobsen 1984: Since test only positive or negative for cocaine,

no privacy interest. Destruction of powder is seizure, but since a small amount and was probably contraband, this is reasonable.

a. Reopening package after FedEx employee opened and informed DEA ok, because employee not covered by 4th

n. Kyllo v. U.S. 2001: Thermal imager can detect infrared radiation and determine heat differences

i. This is a search. Can’t use sense-enhancing technology not in general public useii. Normative Test (Bright line rule)

o. Electronic Trackingi. After Jones: Can’t trespass on person or property, and can’t be so “prolonged”

of tracking that would be unreasonable to public.ii. Knotts 1983: Beeper in chloroform as per consent of selling company. Could

have visually followed, so no search. iii. Karo 1984: No expectation of privacy for tracking information from DEA can of

ether. Foreign object in can did not dispossess. NOTE: CANNOT track in a home.p. Other Searches and Seizures

i. Private Activity1. Burdeau v. McDowell 1921: Private party conducting searches not

protected under 4th Amendment2. Skinner v. Railway Labor Executives Ass’n 1989: Federal regulation

mandating testing, even if by private, is covered by 4th

ii. Govt. Investigation After Private and Legal Searches1. Walter v. U.S. 1980: Partial invasion (mis-delivered package) does not

authorize total invasion (seeing contents). Plain view still ok.2. Illinois v. Andreas 1983: Resealing properly searched item does not

reinstate expectation of privacyiii. Foreign Officials: Need not comply with 4th if searched in their country (Behety

C) BUT if search too extreme as to shock judicial conscience, OR U.S. participation makes it a joint venture, 4th applies (Barona C).

iv. Jails1. Hudson v. Palmer 1984: No privacy expectation in prison cell as to

effectsv. Public Schools and Public Employees

1. New Jersey v. T.L.O. 1985: Some privacy expectation in items taken to school. Search must be reasonable.

2. O’Connor v. Ortega 1987: Some expectation of privacy at work, particularly in desk and file cabinets. Need reasonable suspicion to search. Work product gets no protection

III. WARRANT CLAUSE a. Probable Cause

i. Johnson v. U.S. 1948: Informer told of opium smoking in hotel room. Officers smelled it burning from hallway.

1. With no exception, no amount of evidence breaks warrant requirement, because need neutral magistrate to stand between police and people

ii. Want searches to be justified and not arbitrary. Furthermore, want to prevent excessive governmental intrusions.

iii. Aguilar-Spinelli 1969: Tracked movement for 5 days. Parked in same spot, and entered same building. Two phone numbers in house. Known to be a bookmaker. Harlan two-prong test for probable cause when there is an informant.

1. Reliability/credibility of the informanta. Officers and law abiding citizens presumed reliableb. Criminal/ex-criminal presumed reliable if good track record of

reliable information, OR make declarations against their interests

2. Establishing “underlying circumstances” sufficient to enable magistrate to independently judge validity of informant’s information

a. Direct statements of personal knowledgeb. Wealth of detail

3. NOTE: Prongs are independent.4. Draper: Corroboration by police of information can remedy less than

convincing prongs5. Nathanson: Police statement can’t just be conclusory6. Geordinello: Need more than just saying informant is reliable

iv. Illinois v. Gates 1983: Anonymous letter led to marijuana in Gates’ car1. Totality of the circumstances to determine fair probability. LESS

STRINGENT than Aguilar-Spinelli2. Factors (Morales C):

a. Nature of informationb. Opportunity for police to see or hear the matterc. Veracity and basis of knowledge of informantd. Independent corroboration

3. Corroboration examplesa. Peyko C: Lending color to an activity can lead to probable causeb. Wilhelm C: Accurate description of marijuana and directions to

home not enough, anyone could do thatv. Massachusetts v. Upton 1984: Officer confirmed tipsters identity, who spoke of

first hand viewing of contraband. Enough detail and motive.vi. Patterson C: Confession by co-participant enough for probable cause.

vii. U.S. v. Prandy-Binett (D.C.): Block duct taped in bag, looked like 1 kilo of drugs.1. Common sense determination to decide on fair probability2. Note: Gates standard is less than probable cause.

b. Warrants and Arrests

i. Probable cause to arrest determined by whether there is a fair probability to believe that the person arrested has committed a crime

ii. Mistaken arrest ok if probable causeiii. Maryland v. Pringle 2003: Reasonable to think passengers and driver may be

engaged in common enterprise. All 3 men could have had dominion and control over cocaine. Totality of circumstances, not bright line.

iv. Florida v. Harris 2013: Probable cause not looked in hindsight. Dog sniff probable cause determined based on dog’s training and certification records. Defendant can rebut this.

v. Devenpeck v. Alford 2004: Subjective intent irrelevant if there is probable cause based on known facts. Can arrest for wrong crime even. Impersonating police officer.

vi. Collective Knowledge Whitely v. Warden 1971: Police officers entitled to assume officers requesting aid in execution of arrest warrant offered the magistrate the information requisite.

vii. Staleness of Information: No arbitrary time limit on staleness. Still totality of circumstances.

c. Search/Seizure Warrantsi. First Amendment Concerns New York v. P.J. Video 1986: Probable cause

standard is the same for presumptively protected information.ii. Warden v. Hayden 1967: Must be some nexus between items to be seized and

criminal behavior, but no distinction between fruits of crime and “mere evidence”.

iii. Zurcher v. Stanford Daily 1978: Probable cause that Stanford Daily photographer took pictures of demonstrators who attacked a group of police officers

1. Critical element is reasonable cause to believe that the specific “things” to be search for and seized are located on the property to which entry is sought. Probable cause is enough regardless of the character of the person.

2. Nothing special about 3rd party premises.iv. Describing the Place to Be Searched

1. Functions of the Particularity Requirement: Establishes probable cause prior to search. Also prevents unfettered search power based on blank check warrant.

2. Reasonable Particularitya. Maryland v. Garrison 1987: Officers reasonably thought they

were searching only one apartment, so warrant still valid even though it was two.

b. U.S. v. Johnson C: Can search multiple dwellings if (1) probable cause to search each unit or (2) targets of the investigation have access to entire structure

c. Need sufficient particularity to enable executing officer to locate and identify premises with reasonable effort, without reasonable probability of mistake.

3. Wrong Address Lyons C: Sufficiently directs, valid even if address wrong.4. Breadth of Place to be Searched: Garage, shed, curtilage, locked

bedroom (even of non-suspect (Kyles C)), visitor’s property if it could contain item being search for (Gonzalez C), any item that could hold item being search for at all.

v. Describing Things to Be Seized1. Andresen v. Maryland 1976: Catch-all phrases are not unconstitutional

per se, but they must be particular enough to not make warrant overbroad.

2. Searches of Computersa. No real restrictions on files (Guest v. Leis C)b. Officers should move from most obvious to least obvious files

(will probably still search all) (U.S. v. Richards C)3. Reasonableness Particularity

a. Need not be elaborately detailed, only reasonably specific.4. Severability

a. Overbroad catch-all does not taint evidence seized that was particularly described (can sever) (U.S. v. Brown C)

vi. Reasonableness Limitations on Warranted Searches1. Winston v. Lee 1985: Medical risks in operation can make search

unreasonable. Lodged bullet.vii. FRCrimPro 41(e)(2)(A): Particularity, executed w/in 14 days, during the day

unless there is good cause authorization otherwise (6 am to 10 pm).d. Executing the Warrant

i. Knock and Announce1. Wilson v. Arkansas 1995: Not a rigid constitutional requirement.

Reasonableness test. Things like: hot pursuit, risk of destruction of evidence, and safety of officers can override knock and announce.

2. Can break open premises if admittance refused.3. If door open, no need to knock and announce since no “breaking”

(Mendoza C)4. Richards v. Wisconsin 1997: To justify “no-knock” must have 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 of the crime by, for example, allowing the destruction of evidence.

5. U.S. v. Banks 2003: Can get no knock warrant with advance showing. Also, can break down, with test of how long before officer could reasonably infer exigent circumstances would occur.

6. U.S. v. Ramirez 1998: Limited destruction to prevent violent activity ok. Broke window to stop man thinking he was being burgled from shooting gun into ceiling.

7. Hudson v. Michigan 2006: Violation of knock and announce does not justify exclusion.

e. The Screening Magistratei. Neutral and Detached

1. Coolidge v. New Hampshire 1971: Executive officer, head of law enforcement, not neutral and detached magistrate

2. Connally v. Georgia 1977: Magistrate paid fee is issued warrant, paid nothing if denial, not neutral and detached

3. U.S. v. Decker C: CANNOT be rubber stamp without reading (difficult to prove)

ii. Lgeal Training1. Shadwick v. City of Tampa 1972: Clerks can qualify as neutral and

detached magistrates despite lack of legal training. Only extends to breaches of municipal ordinances

a. Neutral and detachedb. Competent to look at facts in the affidavit and determine fair

probabilityIV. EXCEPTIONS TO THE WARRANT CLAUSE

a. Arrests in Public and in the Homei. Standards for Warrantless Arrests §120.1 Arrest Without a Warrant

1. Can arrest for:a. Felonyb. Misdemeanor, and officer has reasonable cause to believe

person will not be apprehended unless immediately arrest OR may cause injury to self, others, or property

c. OR Misdemeanor committed in the officer’s presence2. Must still have probable cause.

ii. Arrest Versus Summons1. Gustafson v. Florida 1973: Persuasive claim that maybe should be no

custodial arrest for minor traffic violation (NOT LAW)2. Atwater v. City of Lago Vista 2001: Too difficult to distinguish offenses

that justify custodial arrest. Decision to arrest or issue summons is at officer’s discretion.

iii. Arrests in Public1. U.S. v. Watson 1976: Warrantless arrests not presumptively

unconstitutional. Need no proof of exigent circumstances. See §120.1 Arrest Without a Warrant

iv. Excessive Force1. Tennessee v. Garner 1985: Deadly force not allowed to prevent escape

unless necessary to prevent escape and officer has probable cause to believe that suspect poses significant threat of death or serious injury to officer or others.

2. Graham v. Connor 1989: All excessive force claims governed by 4th. Weigh severity of crime with amount of force and immediate threat and resisting or evasion

3. High Speed Chase Scott v. Harris 2007: Officer ramming fleeing car. Balance risk of harming suspect against risk to public safety.

4. Plumhoff v. Rickart 2014: Deadly force allowed by shooting into car. Stopped once flight ended, so ok.

v. Protections Against Erroneous Warrantless Arrests1. Gerstein v. Pugh 1975: Prompt post-arrest assessment of probable

cause entitled to one arrested without warrant.2. County of Riverside v. McLaughlin 1991: Up to 48 hours is prompt, and

burden on suspect to show unreasonable. After 48 hours, burden on gov’t to show bona fide emergency or other extraordinary circumstances.

3. Note: Exclusion only when no probable cause or evidence wouldn’t have been gotten without unreasonably long detention

vi. Arrests in the Home1. Payton v. New York 1980: Threshold of protection over home may not

reasonably be crossed without warrant or exigent circumstances.2. Doorway arrests public if door opened voluntarily, in home if ordered to

open door.3. Steagald v. U.S. 1981: Absent exigent circumstances, search warrant

must be obtained to look for a suspect in the home of a third party. Suspect has no higher privacy expectation in other’s home.

4. Minnesota v. Olson 1990: Warrant required to arrest overnight guest in third party’s home

5. Minnesota v. Carter 1998: Simply being a guest on premises does not require a warrant as per Olson.

vii. Material Witness1. Stein v. New York 1953: Can arrest material witness under certain

circumstances.2. Hurtado v. U.S. 1973: No constitutional right to monetary compensation

for time spent in confinement as a material witness.3. Ashcroft v. Al-Kidd 2011: Objective test to decide if reasons to believe

necessary to detain material witness are sufficient.b. Stop and Frisk

i. Terry v. Ohio 1968: Men seemed to be casing store. Officer stopped and frisked.1. Can stop if there is reasonable suspicion that criminal activity is afoot.2. Can frisk outer clothing if there is reasonable suspicion that the suspect

is armed and dangerous. ONLY justification is for officer and others protection.

3. No good faith exception. Officer may draw on experiencesii. Adams v. Williams 1972: Informant’s tip can be enough for a forcible stop, if

reliable to the police officer.1. Must be articulable suspicion. Even a probable innocent explanation

does not erase reasonable suspicion. Something less than 50%.

iii. Pennsylvania v. Mimms 1977: Frisked after stopping for traffic summons. Automatic right under Terry to order suspect out of vehicle upon legal stop. Need reasonable suspicion of traffic offense.

iv. Maryland v. Wilson 1997: Mimms applies to all passengers. Bright line rule.v. Arizona v. Johnson 2009: Must have reasonable suspicion to frisk passengers

and drivers, not automatic.vi. New York v. Class 1986: Officer can reach into car to move papers to view VIN

number. Can only do so if not plainly visible from outside vehicle.vii. Detention of Occupants of a Residence During Legal Law Enforcement Activity

1. Michigan v. Summers 1981: Even leaving occupants can be held in home during execution of warrant. Prevent flight ad destruction.

2. Muehler v. Mena 2005: Officer authority to detain incidental to search. Handcuffs can be acceptable under circumstances. Length of detention is an interest to be balanced.

3. LA County v. Rettele 2007: Can even be shortly held at gunpoint to secure the room.

4. Bailey v. U.S. 2013: Summers doesn’t extend to being held far from premises. Cannot be detained beyond “immediate vicinity”.

viii. The Line Between “Stop” and “Encounter”1. “Free to Leave” Test U.S. v. Mendenhall 1980: Drug dealer suspect in

Detroit Airport. Asked her to airport to question, asked to search bag, and found drugs.

a. Police can encounter people and not seize if person feels they are free to leave. Factors: Presence of several officers, display of weapon, physical contact, use of language and tone indicating compliance is compelled.

b. Cannot use coercive tacticsc. Objective reasonable person test

2. Florida v. Royer 1983: Officers thought Royer matched drug courier profile. Asked him to come to room. Seized his bags without consent. Royer unlocked bag and consented to it being searched.

a. Royer did not feel free to leave. No probably cause before suitcase opened. Seizing of his id and luggage kept him there, and he did not know he could not consent.

3. Ordering driver to turn off engine is seizure.4. INS v. Delgado 1984: INS officers did not seize workers when they

conducted factory surveys in search of illegal aliensa. Even with guards at doors, activity continued normally and no

one was constrained. No seizure.b. For an encounter, no suspicion is requiredc. Failure to cooperate cannot be treated as suspicious conduct to

justify a Terry stop5. U.S. v. Cardoza C: One way street called over to unmarked car to ask

some questions.

a. Conduct must objectively communicate that the officer is exercising his or her official authority to restrain the individual’s liberty of movement for a seizure. So not here.

6. Bus Sweepsa. U.S. v. Drayton 2002: Officers not required to tell Drayton that

he could terminate the encounter.b. Bostick: Proper test on bus is whether a reasonable person

would feel free to decline the officers’ request or otherwise terminate the encounter.

ix. State of Mind Required for a Stop 1. Brower v. County of Inyo 1989: Seizure when there is a government

termination of freedom of movement through means intentionally applied. E.g. roadblock here.

2. Brendlin v. California 2007: When officer stops a car intentionally, Brower stop has occurred with regards to everyone in the car.

x. Submission1. California v. Hodari D. 1991: Youths scattered at sight of police, and

Hodari chucked cocaine.a. “Dropsie” caseb. Physical display of authority is always a seizure.c. Non-physical display of authority not a seizure until the suspect

yields. So not seized until tackled.xi. Reasonable Suspicion

1. Brignoni-Ponce 1975: Court must examine source to determine if information is sufficiently suspicious to justify a stop

2. Anonymous Tipsa. Alabama v. White 1990: Anonymous tip significantly

corroborated by police officer.i. Reasonable suspicion less stringent than probable

cause. Quantity and quality of information need be less.b. Florida v. J.L. 2000: Anonymous tip that person carrying gun

without more, enough? Noi. Anonymous tips can be reliable if they forecast future

movement. ii. No firearms exception. MAYBE bomb tip exception

iii. Factors (Chavez C): True anonymity, contemporaneous first-hand knowledge, detailed information, stated motivation, corroboration

c. Navarette v. California 2014: 911 call about reckless driver.i. Driving reported was sufficiently dangerous to merit an

investigative stop without waiting to observe more reckless driving.

ii. Relevant that 911 systems make identification of callers easier.

iii. Scalia dissent concerned about too big of an allowance. Thinks there should be more detail, or corroboration first.

d. Domestic Violence: Domestic violence stops allowed without corroboration (Hicks C don’t want to delay emergencies)

e. Anonymity: Face to face with officer not really anonymous (Heard C). Distinguishing characteristics can make it not anonymous (Brown C).

3. Quantum of Suspiciona. U.S. v. Cortez 1981: Looking for fair possibility under the

totality of the circumstances. Particularized objective basis for suspecting the particular person stopped of criminal activity.

b. Note of Comparison: Reasonable suspicion less than probable cause. Could be thought of as “possible cause”. E.g. 1 in 40 not enough for probable cause, but enough to search 40 rooms under reasonable suspicion. 1 in 600 would have neither. (Winsor C).

c. Assessment of Probabilitiesi. U.S. v. Arvizu 2002: Experience and specialized training

of officers (border patrol e.g.) is a factor to consider.4. Reasonable Suspicion of a Completed Crime

a. U.S. v. Hensley 1985: Another officer can make a stop if one officer has reasonable suspicion to stop the defendant and asked for assistance (collective knowledge).

5. Use of Profiles: NO legal significance in presence or absence of particular characteristics of a profile (Berry C).

a. U.S. v. Sokolow 1989: BUT matching characteristics can be factors, and if weighed together make reasonable suspicion, profile can be ok.

b. Overbroad Profile Factors: Things like a “source state” of drugs not enough to stop a car with said plates. Can’t be only factor. (Beck C).

6. Reasonable Suspicion and Flight from the Policea. Illinois v. Wardlow 2000: Fled upon seeing caravan of police

vehicle converge on heavy narcotics area of Chicago.i. High crime area alone not enough, but is a relevant

factor.ii. Unprovoked flight not necessarily indicative of

wrongdoing, but is suggestive of such.iii. Commonsense judgments and inference about human

behavior.7. Race

a. City of St. Paul v. Uber 1990: Vehicle spotted twice in area with high prostitution.

i. No resident needs a reason to be driving on a public street.

b. Weaver: Race can be A factor, but cannot be the ONLY factorc. Ramos 2010: Race not dispositive or always relevant. But IF

relevant, can be A factor.d. Floyd v. The City of New York SDNY 2013: 80% of stops in NYC

blacks or Hispanics.i. Stop and Frisk with no reasonable suspicion are

unconstitutional. Policy not allowed.e. Ligon v. City of New York: Stopping entering and exiting partly

private building with no other action is unconstitutional, as not founded on reasonable suspicion of trespass.

f. Four prevailing viewsi. Racial profiling is irrational/inefficient.

ii. Racial profiling is rational and it works. (Weaver)iii. Racial profiling is rational/works but is un-American and

immoral. (Kennedy)iv. Racial profiling should be used for terrorism, but not

ordinary crimes. (Turley and Taylor)c. Terry Searches and Detentions

i. Limited Searches for Police Protection Under Terry1. Minnesota v. Dickerson 1993: Cannot pat down further after

determining there is no weapon. Purpose can only be protection.2. Suspicion Required to Support the Right to Frisk

a. E.g. High crime area, suspect acting nervous, backing away, stumbling, etc. (Rideau C)

3. Frisking Based on the Type of Crime for Which the Person is Suspected: More assumable right to frisk suspect of violent crime. Nonviolent (e.g. tax offense) not enough to assume frisk alone.

4. Michigan v. Long 1983: Erratic driving, swerved into ditch. Protective search of passenger compartment found marijuana.

a. Can search the grab area. 5. Ybarra v. Illinois 1979: Person’s mere presence in a bar when police

arrived to execute search warrant not enough to provide reasonable belief that he posed a risk of harm to the officers without further sufficient facts.

6. Maryland v. Buie 1990: Quick and limited search of premises for other person, incident to an arrest and conducted to protect the safety of police officers or others.

a. Buie Sweepb. Can only be cursory in reasonable hiding places. CANNOT be

done to prevent destruction of evidence.c. Can occur when there is no arrest if officers have reason to

believe person in the area can obtain access to a weapon and use it (Gould C).

ii. The Line Between Stop and Arrest1. Florida v. Royer: Officers can move people a short distance for a brief

moment for their safety. Otherwise, probable cause required to force movement in order to further investigation (e.g. small room to search luggage)

2. Hicks C: With reasonable suspicion, transporting a suspect a short distance for identification purposes by witnesses is permissible under Terry.

3. Officer may verify information from suspect by communicating with others, conducting preliminary investigations (e.g. vehicle registration check), and can detain on reasonable suspicion to conduct canine sniff.

4. Hiibel v. 6th Judicial D.Ct. of Nevada 2004: The principles of Terry permit a state to require a suspect disclose his name in the course of a Terry stop.

5. Terry stop cannot be a fishing expedition (Santiago C)6. If in course of stop to investigate crime A, officers obtain reasonable

suspicion to investigate crime B, can extend detention (Erwin C).7. Ohio v. Robinette 1996: No bright line requirement to tell someone they

are free to go before asking a question or obtaining consent to search.8. Dunaway v. New York 1979: Detention for custodial interrogation so

intruding on 4th interests, that they trigger safeguards against illegal arrest.

9. Davis v. Mississippi 1969: Fingerprinting may be able to comply with 4th, if some degree of cause, since it is not too intrusive.

10. Hayes v. Florida 1985: Forcing someone to stationhouse for fingerprinting is arrest. Maybe ok in the field if brief.

iii. Time Limits on Terry Stops1. U.S. v. Sharpe 1985: Investigative stop of car driving twice legal limit and

of truck that almost hit police.a. It is appropriate to examine whether the police diligently

pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

b. No set time limit for Terry stops.iv. Show of Force: Handcuffs and gun use ok where reasonable suspicion to believe

that they are necessary to protect officer from harm during course of stop. (Allen C).

v. Detention of Property Under Terry1. U.S. v. Van Leeuwen 1970: Some detentions of property could occur

upon reasonable suspicion, as long as privacy interest of contents maintained, and short detention during a diligent investigation.

2. U.S. v. Place 1983: 2 hours too long per se to wait for dog sniff. BUT 80 minutes has been found ok because there was enough diligence.

vi. Limited Searches for Evidence by Law Enforcement Officers Under Terry

1. Arizona v. Hicks 1987: Overturned turntable for serial number, and discovered it was stolen

a. Even a cursory and minimally intrusive search requires probable cause. A search is a search.

vii. Probationers and Parolees1. U.S. v. Knights 2001: No more than reasonable suspicion required to

search a probationer’s home.a. Must balance needs of state with privacy interests.

2. Samson v. California 2006: Substantial state interest in searching parolee, that diminishing privacy expectation was constitutional. Searches just can’t be arbitrary and capricious.

d. Search Incident to Arresti. Spatial Limitations

1. Chimel v. California 1969: Officers waited in Chimel’s house to arrest him for burglary.

a. Can search GRAB AREA of arrestee with no suspicion at all, incident to arrest.

b. For officer safety and prevention of destruction of evidence2. Timing: At time of search, not arrest (Arizona v. Gant)3. Washington v. Chrisman 1982: Can be invoked for any custodial arrest

and can cover post-arrest movements (e.g. right to monitor arrested person’s movements).

4. Vale v. Louisiana 1970: Probable cause to believe Vale engaged in a drug transaction outside his house

a. Can maybe search home quickly to prevent destruction, but cannot do in depth search with no exigent circumstances.

ii. Temporal Limitations1. Rawlings v. Kentucky 1980: Formal arrest quickly after search, it is

unimportant which came first2. Smith v. Ohio 1990: BUT search cannot create probable cause for arrest3. Chambers v. Maroney 1970: Once suspect in custody, search made in

another place without a warrant not incident to arrest.4. U.S. v. Chadwick 1977: Cannot search footlocker at police station 90

minutes after arrest5. U.S. v. Edwards 1974: Searches and seizures that could be legally made

on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.

iii. Searches of the Person and Containers on the Person1. U.S. v. Robinson 1973: Reason to believe operation car after revocation

of permit. Patted him down, found crumpled cigarette container, opened, heroin pills.

a. Searching suspect and his containers is reasonable under 4th Amendment incident to custodial arrest.

2. Riley v. California 2014: Cell phone searched twice, two hours apart.

a. Mobile wiping is not arrestee’s action. Could be exigent circumstances, but not generally. Cannot search phone data incident to arrest.

iv. Custodial Arrests for Minor Offenses1. Atwater v. City of Lago Vista 2001: Soccer mom

a. Probable cause to believe a minor criminal offense committed in his presence, may arrest. Too hard to draw any other line.

v. The Belton Rule New York v. Belton 1981: Grab area of a car is the passenger compartment.

1. Officers can automatically search it incident to arrest, and can open any container found there within.

2. Thornton v. U.S. 2004: Belton applies whenever the person arrested was a “recent occupant” of the car to be searched.

e. Plain View and Plain Touchi. Arizona v. Gant 2009: Narrows Belton. Search may only be when arrestee is

unsecured and within reaching distance of the passenger compartment at time of the search.

1. Also, can search incident to lawful arrest in vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. (NOTE less that probable cause, maybe equivalent to reasonable suspicion of Terry).

ii. Knowles v. Iowa 1998: Arrest-power rule limited to actual custodial arrest.iii. Virginia v. Moore 2008: Even if arrest not valid under state law, search incident

to arrest allowed. States cannot change validity under Constitution.iv. Pretextual Stops and Arrests

1. Whren v. U.S. 1996: Made stop for minor traffic violation. Police subjective intent irrelevant.

2. Mistakes of fact ok (e.g. sees no front license plate but it is mounted super low Flores-Sandoval C), but mistakes of law not ok (Chanthasouxat C).

v. Horton v. California 1990: Probable cause to search petitioner’s home for proceeds of robbery and weapons used. Warrant only for proceeds. Two requirements for plain view

1. Item seized must have an incriminating character that is immediately apparent

2. Officer must lawfully be located in the place where she can see the object, and her right of access to the object must also be lawful

vi. Arizona v. Hicks 1987: Must be readily apparent probable cause.vii. Minnesota v. Dickerson 1993: Must have known AS SOON AS they felt the object

that it was contraband to be allowed to seize it.f. Automobiles

i. Carroll Doctrine Carroll v. U.S. 1925: Mobility of vehicle can allow search of car without a warrant. Probable cause, movable car, suspect on alert, and vehicle may permanently disappear.

1. Note: There must be probable cause apart from that allowing the arrest.ii. Chambers v. Maroney 1970: If could search car then, or temporarily seize it, can

do the latter and search later at the station house.iii. Coolidge v. New Hampshire 1971: No exigency to search two days after arrest

and multiple times over next few months. (Only time found unconstitutional)iv. Cardwell v. Lewis 1974: Parking lot or highway, doesn’t matter.v. Texas v. White 1975: Car towed to station house can be searched. Warrantless

search that is justified does not vanish when car has been immobilized.vi. California v. Carney 1985: Mobility is a principal basis of automobile exception.

ALSO lesser expectation of privacy with an automobile compared to a home or office

1. No distinction for motor home just because it could be a home as well. vii. Chadwick: Could seize footlocker but not search it.

viii. Arkansas v. Sanders 1979: Police saw suitcase placed into trunk. Could seize but not search.

ix. U.S. v. Ross 1982: Probable cause to search entire car -> probable cause to search containers (brown paper bag)

x. California v. Acevedo 1991: OVERRULES SANDERS. Police may search and automobile and containers within it where they have probable cause to believe contraband or evidence is contained in the car.

xi. U.S. v. Johns 1985: Within reason, can search container later and at a different place if it could have been searched during car search.

xii. Wyoming v. Houghton 1999: Reduced expectation of privacy applies to passengers to, and can search their effects if probable cause to believe contraband in the car. Because of possible enterprise between passengers and driver, bright line rule

g. Exigent Circumstancesi. Immediate action reasonably necessary to prevent flight, safeguard police or

public, or protect against loss of evidence. Fact specific, no bright lines, still need probable cause.

ii. Hot Pursuit1. Warden v. Hayden 1967: Chasing suspect into home, can search for

weapons and the suspect in the home.2. Welsh v. Wisconsin 1984: If not aware of pursuit, cannot use this

doctrine.3. U.S. v. Santana 1976: Short pursuit is ok. Point is to prevent someone

halting arrest initiated in public place.iii. Police and Public Safety

1. Brigham City v. Stuart 2006: Loud party brawl.a. Officers can enter home without warrant to render emergency

assistance to injured occupant or to protect occupant from imminent injury. Subjective intent irrelevant.

2. Michigan v. Fisher 2009: Bloody windows and man screaming, sufficient public safety concern.

3. 911 Calls: Assault and murder allow for warrantless entry unless clearly unjustified. Static insufficient. Dropped calls may be sufficient.

iv. The Risk of Destruction of Evidence1. Dorman factors: Gravity or violent nature of the offense, whether

suspect is “reasonably believed to be armed”, clear showing of probable cause, strong reason to believe suspect is in the premises, likelihood that suspect will escape if not swiftly apprehended, peaceful circumstances of the entry

2. Vale v. Louisiana 1970: Fact-based. Matters if there was no “process of destruction” or reason to believe that anyone was in the house.

3. Mincey v. Arizona 1978: No per se exception of exigency for homicide.4. Welsh v. Wisconsin 1984: Not allowed to arrest in home for DUI. Minor

offenses and in home arrest, exigent circumstances will be rare.5. Missouri v. McNeely 2013: No per se rule allowing warrantless seizure of

blood in drunk-driving case. Must be case-by-case.6. Schmerber v. California 1966: Loss of evidence COULD allow blood test

of DUI arrestee.v. Impermissibly Created Exigency

1. Kentucky v. King 2011: Controlled crack buy, and followed seller to apartment.

a. So long as police did not violate or threaten conduct that violates 4th, warrantless entry is allowed to prevent destruction of evidence.

b. Rejects officer created emergency doctrine. Remember Whren.c. Would be too hard to do reasonable foreseeability.

vi. Seizing Premises in the Absence of Exigent Circumstances1. Murray v. U.S. 1988: Permissible to seize for reasonable period of time

while diligent efforts are being made to obtain a warrant.vii. Prohibiting Entry While a Warrant Is Being Obtained

1. Illinois v. McArthur 2001: Probable cause to believe contraband inside and good reason to fear destruction, can prohibit entry for limited time. Reasonable effort to reconcile law enforcement needs with demands of personal privacy.

h. Special Needsi. Safety Inspections of Homes

1. Camara v. Municipal Court 1967: Warrant required, but can be issued upon a finding that a search is in compliance with a reasonable administrative scheme

2. See v. City of Seattle 1967: Camara applies to commercial structures too.

3. Griffin v. Wisconsin 1987: If needs to be issued by a court, still need probable cause. If standard is less than probable cause, need no warrant, only reasonable suspicion.

ii. Administrative Searches of Businesses

1. Donovan v. Lone Steer, Inc. 1984: Fire inspector can inspect area open to public. Not search. No privacy expectation

2. New York v. Burger 1987: Colonnade-Biswell doctrine: If pervasively regulated business accepts that business records and such will be suspect to effective inspection. Factors:

a. Substantial government interest that informs the regulatory scheme pursuant to which the inspection is made

b. Warrantless inspection necessary to further the regulatory scheme

c. Statute’s inspection program must provide a constitutionally adequate substitute for a warrant.

i. Must advise owner that search is pursuant to law with properly defined scope and limit of the discretion of inspecting officers.

ii. Owner must be aware via sufficiently comprehensive statute, that the property will be subject to periodic inspections for specific purposes.

d. Generally for businesses: Need warrant, but only reasonable, not probable cause.

iii. Individual Searches for Special Needs1. New Jersey v. T.L.O. 1985: Reasonable suspicion to search student bag

for cigarettes upon balancing of state interest with student privacy interest.

2. Safford Unified School District v. Redding 2009: Strip search is too far.iv. Suspicionless Searches of Persons on the Basis of “Special Needs”

1. Skinner v. Railway Labor Executives 1989: Balancing test. Strong deterrence against drug use while operating trains, little privacy concern. Record of drug problem with RR employees.

2. National Treasury Employees v. Von Raab 1989: Drug interdiction employees and those carrying firearms could be drug tested for safety reasons.

3. Schoolchildrena. Vernonia 1995: Upheld suspicionless drug testing of student

athletes. Little expectation of privacy (showering).b. Earls 2002: Upheld suspicionless drug-testing of all students

engaged in extracurricular activities. State responsible for maintaining discipline, health, and safety. Minimal intrusion, and drugs pressing problem in schools.

4. Politicians Chandler v. Miller 1997: No “special need” to drug test political candidates. High privacy interest, and no record of drug use. Need a proffered interest or real need for the test.

5. Ferguson v. City of Charleston 2001: Can’t test pregnant mother. Can’t allow for test if central and indispensable feature of the policy is law enforcement.

6. Airports, Subways, Public Buildings, etc.a. Magnetometers in airports: Safety based, high state interestb. After 9/11 more intrusive ok. Good faith purpose.c. Preventing terrorists is a special need.d. Can search for the scope of safety. Reading or going further not

allowed (McCarty C).7. Safety-Based Strip Searches of Detainees Without Reasonable

Suspiciona. Florence v. Board of Chosen Freeholders 2012: No touch strip

search. Need ability to detect and deter outside contraband. Narrowly applies when detainee will be introduced to general jail population and be in contact with other detainees.

8. Special Needs Search of Text Messages of a Public Employeea. City of Ontario v. Quon 2010: Unintrusive search to determine if

message limit was high enough. Little privacy expectation of messages on work pager.

9. Roadblocks, Checkpoints, Etc. Without Suspiciona. Delaware v. Prouse 1979: Cannot stop automobile and detain

driver to check license and registration without reasonable suspicion

b. U.S. v. Martinez-Fuerte 1976: Permanent checkpoints are fine. Not surprising, limited intrusion. Terry reasonableness test shows high state interest.

c. Michigan v. Sitz 1990: DUI checkpoint. Terry balancing. High interest in safety, only a little discretion, everyone stopped, ok. Cars can see they’ll be stopped.

d. City of Indianapolis v. Edmond 2000: If primary purpose is law enforcement, can’t do it. Need exigent circumstances.

e. Illinois v. Lidster 2004: Information seeking is a special need. Warrant clause predominates if primary purpose is ordinary criminal law enforcement.

v. DNA Testing1. Maryland v. King 2013: Legitimate government interest in safe and

accurate processing and identifying. Tiny individual interest, minimally intrusive, low expectation of privacy once in police custody.

a. Dissent: No matter how invasive, suspicionless searches never allowed for ordinary crime-solving.

vi. Inventory Searches1. Not based on probable cause, unrelated to criminal investigation.

Caretaking rather than investigative.2. Cady v. Dombroski 1973: Community caretaking function of inventory

searches.3. South Dakota v. Opperman 1976: Must be standard police procedure, if

warrantless and suspicionless. If so, allowed. State interests: protect

owner’s property, protect police against claims of lost or stolen property, and protect police and public from potential danger.

4. Illinois v. Lafayette 1983: Inventory search of shoulder bag at station ok. Less embarrassing at station. May not hold up if not to be incarcerated.

5. Colorado v. Bertine 1987: So long as police discretion exercised according to standard criteria and on the basis of something other than suspicion of criminal activity, fine. CANNOT be arbitrary.

6. Florida v. Wells 1990: No policy on closed containers, and no standard procedures, cannot open for inventory search.

7. Note: If no inventory purpose, cannot do it (e.g. cannot impound car from locked garage, cannot vacuum a car to “inventory” fibers, etc.)

vii. Border Searches1. Two big state interests: Protect the borders, and regulate goods going

in and out of the U.S.2. Warrantless, Suspicionless Search of International Mail

a. U.S. v. Ransey 1977: Routine border searches are reasonable even without probable cause or reasonable suspicion. Need no suspicion at all. Minimal intrusion, low expectation of privacy, and BIG state interest.

i. Everyone is subject, so no arbitrariness risk.3. U.S. v. Flores-Montano 2004: What does “routine” mean? Balancing

test. Case-by-case determination. Taking apart gas tank was reasonable and “routine”. Cavity search is not. Strip search is not. Turning on computer is. Dog sniff is. Drilling small hole in car is.

4. Can search ship cabin, even if it is a “home”, because it could transport contraband (Alfaro Moncada C).

5. U.S. v. Montoya de Hernandez 1985: Beyond routine, must have reasonable suspicion that traveler is smuggling contraband (e.g. in alimentary cavity). If so, can keep person seized for a not unreasonable time. If suspect creates delay, not unreasonably long (e.g. refusing to poop).

6. Routine: NO SUSPICION REQUIRED7. Non-Routine: REASONABLE SUSPICION REQUIRED (Terry test).8. Searches Away from the Border

a. Almeida-Sanchez 1973: Roving border patrol subject to standard police restrictions

b. U.S. v. Ortiz 1975: Need probable cause at internal checkpoints, because don’t want abuse of discretion

c. If airport or port of call is not actually at border, border search standards still apply.

i. Consent (Most common)i. Voluntariness

1. Schneckloth v. Bustamonte 1973: Search based on valid consent is reasonable even in the absence of a warrant or any articulable suspicion.

a. Voluntariness determined under totality of circumstances2. U.S. v. Watson 1976: Absence of consent warnings or of proof that

suspect could withhold consent was not controlling where defendant had been arrested and was in custody, but consent was given on a public street and not in the confines of a police station.

3. Bumper v. North Carolina 1968: Burden of proof of voluntary consent on the government.

4. U.S. v. Mendenhall 1980: If no threat or coercion, consent can be voluntary. Helpful if told can decline.

5. Gonzalez-Basulto factors: Voluntariness of defendant’s custodial status, presence of coercive police procedures, extent and level of the defendant’s cooperation with the police, defendant’s awareness of his right to refuse consent, defendant’s education and intelligence, defendant’s belief that no evidence will be found

6. Threats of Action if Consent Refused: Empty threat can render consent involuntary. Threat to get warrant does not necessarily (U.S. v. Duran C)

7. Ohio v. Robinette 1996: Need not be told free to leave.ii. Third Party Consent

1. U.S. v. Matlock 1974: Third party with actual authority can give valid consent

2. Illinois v. Rodriguez 1990: Reasonableness standard applies if there is apparent authority. Note, cannot have “ignorance is bliss

3. Stoner v. California 1964: Cannot be unrealistic apparent authority. Cannot be mistaken about law.

4. Georgia v. Randolph 2006: A physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

5. Fernandez v. California 2014: Objectively reasonable to remove abuser from the apartment. Thus later consent from wife in his absence valid. Objection cannot last forever, and removal was not pretext.

6. Note: Objecting to arrest is not objecting to search.iii. Scope of Consent

1. Florida v. Jimeno 1991: Objective reasonableness determines scope of consent. E.g. consent to search car reasonably included consent to search paper bag lying on floor.

2. Note: Ambiguity is construed against the citizen. BUT excessive searches overcome this (Turner C child porn computer search), and cannot generally destroy or render something useless (Strickland C).

iv. Withdrawing Consent1. Cannot be revoked retroactively after the officer has found

incriminating information.

2. Revocation immediately before officer searches something cannot be proof of something incriminating. Else the right of revocation would be useless.

v. Credibility: Officers usually considered more credible. Testilying problemV. THE EXCLUSIONARY RULE

a. NOTE: Fourth Amendment SILENT on what should happen in violationb. Weeks v. U.S. 1914: Exclusion is to only effective means of protecting 4th. Evidence

obtained in violation must be excluded to keep value of 4th. Only applies to federal officers for evidence to be admitted into federal courts.

c. Wolf v. Colorado 1949: 4th incorporated. States have to follow 4th, but do not have to follow exclusionary (NOT GOOD LAW)

d. Mapp v. Ohio 1961: Applies “only effective means” to states under 14th. Other remedies worthless. Exclusion deters police misconduct.

e. Four Supports (And Amar rebuttals)i. Judicial Integrity (Lack of true evidence frees criminals, decreasing integrity).

ii. Prevents gov’t profiting from wrong (By letting criminals profit from gov’t wrong).

iii. Not costly, only excluding that which should never have been found (Not true, can exclude that which could have been obtained)

iv. Necessary to deter police misconduct (Deterrence comes by way of benefit to criminal defendants. Criminals are the wrong kinds of enforcers)

f. Alternativesi. Civil Damages?

1. Problems: Immunity, lack of sympathy for wrongdoer, hard to establish damages, hard to collect judgments, lawyers don’t want these cases

2. Hudson v. Michigan 2006: Violation of knock and announce does not justify exclusion. Can have remedy of damages and attorney’s fees under §1983

ii. Fortified Civil Damages? (HYPOTHETICAL)1. Gov’t should be liable2. Damage multipliers and punitive damages3. Small claims get attorney’s fees and class action consolidation4. Liberalized procedural limitation5. Administrative channels established to streamline the process

iii. Criminal Prosecution of Offending Officer1. Never get convicted2. Don’t want over-deterrence3. Prosecutors won’t press charges often

iv. Police Rulemaking and Other Administrative Solutions1. Education, training, and discipline has increased since Mapp2. Vacation time cuts, pay docking.3. Too much deterrence?

v. Sentence Reductions?g. Limitations on Exclusion

i. “Good Faith” – Reasonable reliance on the decisions of Magistrates and others1. U.S. v. Leon 1984: Cost benefit analysis. Good faith exception if officer

obtains warrant. Four exceptions to this exceptiona. Magistrate misled by affidavitb. Magistrate wholly abandons her judicial rolec. Affidavit so lacking in indicia of probable cause that reliance on

it would be unreasonabled. Warrant so facially deficient that executing officer cannot

assume it to be valid2. Sheppard 1984: Error by Magistrate. Both officer and magistrate

believed the warrant issued sufficient. Not excluded3. Reasonable Reliance on Unreasonable Warrants

a. Anderson v. Creighton 1987: Can reasonably act unreasonably. Good faith only doesn’t apply where no reasonable argument can be made that the warrant is valid.

4. Warrants Clearly Lacking in Probable Causea. Where reasonable minds could differ (Leon) about whether

Gates has been satisfied, good faith exception still can apply.5. Warrant Lacking Particularity

a. Good faith applies to search pursuant to overbroad or unparticularized warrant if reasonable minds could differ. (Leon)

6. Untrue or Omitted Statements in Warrant Applicationa. Exclusion occurs if officer puts material information in the

application for a warrant (Leon)i. Material he knew was false

ii. Material he would have known was false except for his reckless disregard of the truth

ii. Good Faith and Warrantless Searches1. Illinois v. Krull 1987: Can reasonably rely on legislative act, unless officer

should have known statute was unconstitutional.2. Arizona v. Evans 1995: Can reasonably rely on clerks error (e.g. quashed

warrant still in system), since no deterrent for exclusion.3. Herring v. U.S. 2009: Exclusion is a last resort

a. Conduct must be so objectively culpable as to require exclusionb. Could be reckless where systematic errors are demonstrated.c. BUT negligence does not warrant exclusion

4. Davis v. U.S. 2011: Exclusion does not apply if officers reasonably applying the law as it existed at the time of their conduct.

h. Establishing Violation of a Personal Fourth Amendment Righti. Rakas v. Illinois 1978: Passenger in car standings? Katz test. (NOTE: Traditionally

did “legitimately on premises”, but strike that down here. Also, possession offense ALWAYS has standing)

1. Two-Pronged test:

a. Must do something to demonstrate that you expect privacy (factual determination)

b. Was the expectation reasonable?ii. U.S. v. Salvucci 1980: Abolished Jones automatic standing. Only defendant

whose Fourth Amendment rights were violated can challenged warrant.iii. Rawlings v. Kentucky 1980: Ownership of property does not necessarily confer

standing. Object in another’s purse, can only object to seizure (which is moot if contraband), but not of the search.

iv. U.S. v. Payner 1980: Evidence can be admitted against defendant that was stolen from a third party’s briefcase.

v. Minnesota v. Carter 1998: Persons temporarily on premises for commercial transaction have no 4th right at stake in search of premises.

vi. Carter C: Have keys and permission to use car, and do use it, can claim privacy even if not own.

vii. Disassociation: Lose standing on disassociation. E.g. putting title, insurance, and everything of car in another’s name. E.g. denying ownership of a bag

viii. U.S. v. Padilla 1993: No automatic right to challenge a search or seizure simply because one is a member of a conspiracy that owns a property

i. Causation and Attenuationi. Ker-Frisbie Doctrine: Body of person not subject to exclusion. Illegal arrest of

someone does not deprive court of jurisdiction.ii. Brown v. Illinis 1975: Fruits of Poisonous Tree doctrine. If something breaks the

chain of causation (in this case Mirandizing), then evidence admissible.1. Burden of showing admissibility on the prosecution.2. Totality of the Circumstances

a. Factors include: Miranda warnings, temporal proximity of arrest and confession, presence of intervening circumstances, purpose and flagrancy of official misconduct

iii. Wong Sun: Is evidence to which instant objection is made come by at the exploitation of illegality or by means sufficiently distinguishable to be purged of the primary taint.

iv. Taylor v. Alabama 1982: No probable cause for arrest, put in a line up, and told fingerprints matched those at robbery scene. Time and repeated warnings with waiver not enough for attenuation.

v. Kaupp v. Texas 2003: Knowing no probable cause, illegal arrest at 3 a.m., lied about implication by accomplice. No attenuation.

vi. Rawlings 1980: Improperly detained in house while warrant gotten. No flagrant misconduct. Confession was spontaneous reaction to legal finding of evidence with warrant. Ok.

vii. New York v. Harris 1990: Payton violation (in home arrest with no warrant) did not cause confession, when there was probable cause to arrest, so no exclusion.

viii. Hudson v. Michigan 2006: Violation of knock-and-announce not enough to cause exclusion. Too much deterrence.

ix. Note: Voluntary consent CAN break the chain IF it passes under totality of circumstances

x. U.S. v. Ceccolini 1978: Witness decision to testify is normally enough to break any causal connection between illegality and testimony.

j. Independent Sourcei. Murray v. U.S. 1988: If lawful search based on independent source of

information from illegal search, no exclusion. Want to put police in same position through exclusion, not worse position.

1. Officer must only have a plausible explanation for why the original search was made without a warrant.

ii. Segura v. U.S. 1984: Entering premises illegally does not gain exclusion of evidence obtained through legal search warrant based on information wholly unconnected with the initial entry.

k. Inevitable Discoveryi. Nix v. Williams 1984: No “good faith” requirement. There is enough uncertainty

that evidence would ever have been found legally to deter conduct.1. Preponderance needed to be shown that challenged evidence would

have inevitably been discoveredii. Andrade C: Inevitable discovery through inventory search that would be part of

standard procedure can prevent exclusion.iii. Note: “We could have obtained a warrant” is not enough. Probable cause does

not make discovery inevitable.iv. Focus on what officers would have done, not what they could have done.

l. Use Outside the Criminal Trial Contexti. U.S. v. Calandra 1974: No exclusion in grand jury proceedings. Exclusion at trial

is enough.ii. U.S. v. Janis 1976: Civil tax litigation, no exclusion. Little deterrent effect.

iii. INS v. Lopez-Mendoza 1984: Exclusion consequences high, because person is committing a criminal offense at the time of the proceeding for civil deportation. Outweighs deterrence, no exclusion.

iv. Stone v. Powell 1976: Exclusion does not apply in admitting evidence from 4th issues at state trial in habeas corpus proceedings. Little deterrence, high exclusion cost.

v. PA Board of Probation and Parole v. Scott 1998: Exclusionary rule not applicable in parole revocation proceedings.

vi. Sentencing Proceedings: Most lower could find exclusion inapplicable.m. Use of Illegally Obtained Evidence for Impeachment

i. Walder v. U.S. 1954: If door opened on direct examination, can use to impeach (cannot use exclusion as license for perjury).

ii. U.S. v. Havens 1980: Can be used to impeach defendant’s testimony on Cross-Examination. Dissent: Wtf, this allows prosecutors to get in illegal evidence with own questions…

iii. James v. Illinois 1990: Impeachment exception does not extend to witnesses testimony. Perjury prosecution is enough deterrence, don’t need excluded evidence.

VI. SELF INCRIMINATION AND CONFESSIONSa. Three Aspects: Compulsion, testimonial evidence against self, and incriminatingb. Scope

i. Counselman v. Hitchcock 1892: Privilege in any proceeding if testimony may later by used in a criminal proceeding against that person

ii. U.S. v. L.O. Ward 1980: Legislation declaring proceeding “civil”, especially with no incarceration, likely to be upheld

iii. Allen v. Illinois 1986: Detention for “treatment” as sex offender, can be civiliv. U.S. v. Balsys 1998: Concern with foreign prosecution beyond scope of Self-

Incrimination Clausev. Chavez v. Martinez 2003: No relief if never admitted in a criminal case

c. What is Complusion?i. Use of contempt power is compulsion

ii. Lefkowitz v. Turley 1973: Threat of state imposed sanction is compulsion if significant penalty for invoking the privilege. Waiver under substantial economic threat not voluntary

iii. Spevack v. Klein 1967: Threat of disbarment is compulsioniv. Ohio Adult Parole Authority v. Woodward 1998: Clemency procedure does not

compel self-incriminationv. McKune v. Lile 2002: Refusing benefit isn’t coercion, but enacting penalty is. Not

allowing prison privileges is refusing a benefitvi. Griffin Rule Griffin v. California 1965: Cannot make adverse comment to jury on

defendant’s election not to testify. This would be punishment for invocation.1. Mitchell v. U.S. 1999: Cannot have adverse inference for silence at

sentencing proceeding2. Baxter v. Palmigiano 1976: CAN have adverse inference for silence in

civil case3. White v. Woodall 2014: Not entitled to a no-adverse-inference

instruction about silence at a penalty hearing of a capital trial.vii. Brogan v. U.S. 1998: No “exculpatory no” doctrine. Should have remained silent.

Can be charged with false statementd. To Whom Does the Privilege Belong?

i. Fisher v. U.S. 1976: Personal principal. About incriminating self through testimony.

ii. Bellis v. U.S. 1974: Collective Entities do not have a privilege against self-incrimination. Only sole proprietorship MIGHT be protected.

e. What Is Protected?i. Schmerber v. California 1966: Only testimonial evidence is privileged. Physical

evidence (blood, being in line-up), voice samples, etc. are not testimonial.

ii. PA v. Muniz 1990: Line between testimonial and non-testimonial is determined by whether the witness faces the “cruel trilemma” in disclosure: self-accusation, perjury, or contempt.

1. Speaking in slurred voice is physical evidence2. Asking sixth birthday is testimonial evidence

iii. Doe v. U.S. 1988: To be testimonial, must be express or implied assertion of fact that can be true or false.

iv. Estelle v. Smith 1981: Defendant interviewed by govt. psychiatrist must be warned that what he says can be used against him

v. South Dakota v. Neville 1983: If allowed to be compelled, refusal can be used for negative inference.

vi. Documents and the Like1. Boyd v. U.S. 1886: Cannot subpoena books and papers with private

information. Can get from 3rd party under Fisher.2. Fisher v. U.S. 1976: Can be compelled to produce documents even if

would incriminate self. Must not be preparation.a. Act of Production privilege if producing alone tells govt.

something incriminating. Totality of circumstances.b. U.S. v. Doe 1984: Can be invoked if act of production of

documents involves “testimonial self-incrimination”.3. Admission of existence is rarely incriminating.4. Controlling documents is usually not incriminating, unless it is.5. Admission of authenticity MAY be incriminating.6. U.S. v. Hubbell 2000: Providing trail for govt. can be incriminating.7. Braswell v. U.S. 1988: Corporate documents held by a representative, if

not in personal capacity, can be compelled even if incriminating.8. Baltimore v. Bouknight 1990: Accepting care of child subject to the

custodial order’s conditions accepts the consequent obligations of production. Must produce child.

9. Shapiro v. U.S. 1948: Compelled production of customary business records, required to be kept by legislation, does not implicate 5th.

a. Marchetti v. U.S. 1968: Cannot be compelled to pay a tax that would always incriminate unlawful activities (e.g. illegal gambling tax).

b. Haynes v. U.S. 1968: Records not customarily kept, cannot be compelled.

10. CA v. Byers 1971: Hit and run statute (compelled reporting) valid under required records exception.

f. Procedural Aspectsi. Hoffman v. U.S. 1951: Risk determined by whether it is perfectly clear from a

careful consideration of all circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency to incriminate. Claim usually sustained in trial as result.

ii. Hiibel v. 6th District Court of Nevada 2004: Name is testimonial, but providing it is such insignificant information, it will not be incriminating barring VERY unique circumstances. No privilege.

iii. Ohio v. Reiner 2001: Even if denying guilt, can have fear of self-incrimination, and privilege allowed.

iv. Immunity1. Kastigar v. U.S. 1972: “Use-fruits” immunity under §6002 is sufficient.

Can be compelled, but then can’t be used in criminal proceeding.a. Burden on government to prove testimony was not used. “Wall

of Silence” can help.2. New Jersey v. Portash 1979: Immunized testimony cannot be used for

impeachment3. U.S. v. Apfelbaum 1980: CAN be used for perjury, false statement, or

obstruction of justice charge (separate claim)4. PA v. Conboy 1983: Right of witness at deposition in civil case to claim

privilege even though he had previously been granted immunity in related criminal procedure.

5. Transactional Immunity: Can’t be prosecuted for ANY of the transactions involved in the information. No punishment for truth.

6. Derivative Immunity (Use-fruits): Can be prosecuted for transactions, but testimony cannot be used AT ALL.

v. Invoking the Privilege1. Garner v. U.S. 1976: Answered questions on tax return, lost privilege2. Minnesota v. Murphy 1984: Must explicitly invoke. No privilege when

answered question of probation officer concerning crimes not yet charged for.

3. Salinas v. Texas 2013: Silence while not in custody can be used later without 5th violation

g. Waiver of the Privilegei. Generally, taking stand waives privilege to information in scope of direct

examination, and reasonably related questions on cross.ii. Mitchell v. U.S. 1999: Witness pleading guilty does not waive right to silence at

sentencing.iii. Buchanan v. Kentucky 1987: No 5th violation in the use of a psychiatric

evaluation of the defendant to rebut a psychiatric defense.iv. Kansas v. Cheever 2013: Evidence from court-ordered examination allowed to

rebut defendant’s presentation of expert testimony to support a voluntary intoxication defense.

h. Confessions and Due Processi. 5th and 14th exclude involuntary confessions.

ii. Brown v. Mississippi 1936: Involuntary confession (brutal beating and whipping) violates due process. Factors include:

1. Personal Characteristics of accused (age, education, mental deficiencies, etc.) (Payne)

2. Action of the Police: Deprivation (Payne), mistreatment, psychological pressures (Watts v. Indiana), rewards and inducements (Hopt)

3. Warnings4. Totality of the Circumstances

iii. Spano v. New York 1959: Young, foreign, uneducated, emotionally unstable, inexperienced in criminal justice, leading questions, questioned incessantly when refusing to answer on advice of attorney, use of his friend to extract confession. Deemed involuntary.

iv. Deception and False Promises by Police: Can use misleading tactics (Green v. Scully C).

v. False Documentary Evidence: Involuntary confession. Different from verbal falsities.

vi. False Promise of lenience, not allowed, because it removes informed choice.vii. Arizona v. Fulminante 1991: Confession made by prisoner to informant

involuntary when made to ward off threat of physical violence. Coerced.viii. Colorado v. Connelly 1986: Due process focus is primarily on police misconduct.

i. Fifth Amendment Limitations on Confessionsi. Miranda v. Arizona 1966: Right to remain silent, any statement can be used as

evidence, right to an attorney, if indigent an attorney will be provided. Must be told of these rights.

1. Custodial interrogation is inherently coercive2. Miranda rules are educating3. If known to have ample funds, need not give indigency warning4. Miranda leaves open possibility that other effective safeguards may

suffice.5. Exclusion for both inculpatory and exculpatory statements.6. Don’t need to get lawyer, must just cease questioning.7. No person excluded, no matter how much evidence of knowledge of

rights.8. Eventual confession does not prove valid waiver.9. High burden of proof on government to show waiver.10. Prophylactic rule

ii. Withrow v. Williams 1993: Miranda claims allowed on habeas review.iii. Miranda Compromise: No non-waivable right to an attorney. Can question until

invocation of right with no attorney present.j. Miranda Exceptions

i. Harris v. New York 1971: Can use Miranda defective statement to impeach, because Miranda not constitutional guarantee (still valid after Dickerson). Don’t want to license perjury. Cost-benefit analysis

ii. Oregon v. Hass 1975: Not respecting right to attorney can be used to impeach.iii. Mincey v. Arizona 1978: Cannot be admitted to impeach if involuntary.iv. Doyle v. Ohio 1976: Cannot impeach with prior silence, because of Due Process.v. Jenkins v. Anderson 1980: Pre-arrest silence can be used to impeach, since not

induced by govt. action (e.g. took two weeks to turn self in).

vi. Fletcher v. Weir 1982: Post arrest, pre Miranda silence can be used to impeach.vii. Admitting Fruits of a Miranda Violation

1. Michigan v. Tucker 1974: Cost-benefit analysis. Miranda is procedural safeguard, not Constitutional right, so if testimony leads to witnesses, can then use witness’s testimony. (Still valid after Dickerson).

2. Oregon v. Elstad 1985: Second confession not tainted by defective first confession, since Miranda not constitutionally required. Second excluded if first involuntary. (Still valid after Dickerson).

3. Missouri v. Seibert 2004: Kennedy concurrence followed. Police used two step process of eliciting confession, then warning, then getting confession again. Can’t do this. Miranda warnings effective unless:

a. Officers were in bad faith in not giving warnings before first confession

b. AND no curative measures were taken between.4. Bobby v. Dixon 2011: Seibert does not apply where unwarned statement

and Mirandized statement are about different crimes.5. U.S. v. Patane 2004: Arrested for harassing ex. BRIGHT LINE RULE:

Physical fruit from a Miranda violation is not excluded.viii. Emergency Exception

1. New York v. Quarles 1984: Thought gun might be nearby upon arrest. Afraid for public safety. Overriding consideration of public safety can justify failure to warn. Necessity based exception (still valid after Dickerson).

a. Does not apply in person’s home.b. Questions must be addressed to the public safety riskc. Asking about guns or sharp objects before frisk allowed for

officer safety (from getting poked e.g.)k. What Is Custody? Deprivation of freedom of action in a significant way (Miranda)

i. Orozco v. Texas 1969: Arrest is custodyii. Beckwith v. U.S. 1976: Sitting at table discussing tax documents, not custody

iii. Stansbury v. California 1994: Objective test to determine custody.iv. J.D.B. v. North Carolina 2011: Child’s age can inform Miranda custody analysis.

Children feel found to submit to police.v. Prisoners

1. Mathis v. U.S. 1968: No per se rule. If freedom of movement further diminished, in custody.

2. Howes v. Fields 2012: Factors: No “shock of arrest”, unlikely to be lured into speaking for prompt release, know officers probably lack authority to affect duration.

vi. Oregon v. Mathiason 1977: Questioning at police station not necessarily custody. Going voluntarily, being informed not under arrest, leaving without hindrance -> not in custody.

vii. Minnesota v. Murphy 1984: Even though probation meetings required, not necessarily in custody

viii. Berkemer v. McCarty 1984: Terry stops not custodial. Brief, limited questions, no obligation to respond.

ix. Brown Factors: Suspect informed that questioning voluntary, unrestrained freedom of movement, who initiated, use of strong arm tactics, whether the atmosphere was police dominated, whether arrested at end of questioning

x. Griffin Factors: Language used to summon individual, extent defendant is confronted with evidence of guilt, physical surroundings, duration of detention, degree of pressure applied to detain the individual

l. What Is Interrogation?i. Rhode Island v. Innis 1980: No idea that his conscience would make him confess

when talking about guns and handicapped children. Miranda comes into play when a person is subjected to express questioning or the functional equivalent of interrogation.

1. Words or actions that officers should know are reasonably likely to elicit an incriminating response.

2. Focus is on the perceptions of the suspect, rather than officer intent.ii. Arizona v. Mauro 1987: No interrogation when suspect confessed to wife in

presence of a police officer who recorded the statements, when suspect knew he was being recorded.

iii. Edwards v. Arizona 1981: Interrogated when officers played a recorded statement of his associate that implicated him in the crime.

iv. Directed statements more likely to elicit incriminating response. Soto C.v. Pennsylvania v. Muniz 1990: Officers can ask custody related questions without

Miranda warning. Note: Would not apply if designed to elicit incriminating response. Booking Question Exception.

1. Asking suspect’s name is always a booking exception. Carmona C.vi. Illinois v. Perkins 1990: Boastful statements in prison not covered. No Miranda

concern if the suspect does not know they are talking with a police officer. Undercover acceptable.

vii. Berkemer v. McCarty 1984: No distinction between felonies and misdemeanors for Miranda purposes.

viii. How Complete Must Warnings Be?1. California v. Prysock 1981: Some flexibility so long as suspect gets gist of

the warnings. Need to give sufficient information and not be misrepresentative.

2. Duckworth v. Eagan 1989: If language accurately describes procedure and apprises the defendant of his rights, that is enough.

ix. Florida v. Powell 2010: If it was reasonably conveyed to suspect that he could have an attorney present throughout questioning, then ok.

x. Foreigners Conducted Abroad: Often regarding terrorism. No affirmative obligation to urge local officials to comply with U.S. Constitution standards. But sometimes applies on foreign soil.

m. Dickerson

i. Dickerson v. U.S. 2000: Miranda announced a constitutional rule, because that is what the justices thought they were doing.

1. Because the Court has been applying the standard to States, Court intended to announce constitutional rule.

2. Stare decisis, should not overrule Miranda.3. Scalia goes “apeshit”, court severely violating separation of powers.4. All exceptions still apply.

n. Waiver of Miranda Rights: Must be voluntarily, knowingly, and intelligently waived.i. North Carolina v. Butler 1979: Need not be express statement of waiver. Just

need sufficient evidence to show that suspect understood his rights and voluntarily waived them

ii. Moran v. Burbine 1986: Two factors for Miranda waiver:1. Must be voluntary in the sense that it was the product of a free and

deliberate choice. 2. Also, must have been made with full awareness of nature of the right

and consequences of waiver.iii. Tague v. Louisiana 1980: Confessing after reading rights alone not waiver. Can

be waiver if Burbine factors met.iv. Colorado v. Connelly 1986: Coercive police activity prerequisite to involuntary.

CAN be involuntary even with waiver, if too coercive.v. Connecticut v. Barrett 1987: Agreeing to make oral but not written statement is

sufficient waiver. Note: Would not have been valid if suspect thought oral statements could not have been admitted at trial.

vi. Information Needed for an Intelligent Waiver1. Colorado v. Springs 1987: No need for warnings to be tied to scope of

interrogation2. Oregon v. Elstad 1985: Need not tell suspect that previous confession is

inadmissible3. Moran v. Burbine 1986: Don’t have to tell suspect that attorney is trying

to contact him if valid waiver of right to counsel. No right to counsel until invoked. Police state of mind is irrelevant. Miranda compromise.

vii. Waiver After Invocation1. Michigan v. Mosley 1975: Must scrupulously honor the invocation of

right to allow for later effective waiver. Fact based.a. Generally need “cooling off” period. Cannot use persuasive

tactics.2. Berghuis v. Thompkins 2010: Cannot invoke right to silence by saying

nothing. Must be unequivocal invocation. If waiver ultimately gotten, can question after warnings before waiver.

o. Counsel: Miranda and Sixth Amendmenti. Invocation of Rights

1. Edwards v. Arizona 1981: Cannot further interrogate without counsel unless accused initiates further communication.

2. Oregon v. Bradshaw 1983: Two-Step Analysis

a. Bright-line prophylactic safeguard of the suspect-initiation requirement

b. Totality of the circumstances test of knowing and voluntary waiver.

c. Note: Generally courts hold ambiguity in favor of finding suspect initiation

3. Davis v. U.S. 1994: Suspect must clearly and unequivocally invoke right to counsel. “Maybe I should talk to a lawyer” not enough.

4. Smith v. Illinois 1984: Where nothing about request for counsel or circumstances would render it ambiguous, questioning must immediately cease.

5. Arizona v. Roberson 1988: Invocation under Edwards NOT offense specific. Must stop interrogation of any crime.

6. Minnick v. Mississippi 1990: Edwards protection continues after suspect has consulted with an attorney. Good bright-line rule to prevent badgering and coercion.

7. Maryland v. Shatzer 2010: Extended period of release from custody dissolves Edwards protection. Two years, seven months long enough here.

8. McNeil v. Wisconsin 1991: Before formal charges, right to counsel is Miranda right. At arraignment and on, 6th Amendment.

ii. Sixth Amendment1. Massiah Rule 1964: Adverse party, in advance of litigation, may only be

contact through her lawyer after formal charges. Couldn’t bug friend. 6th Amendment guarantee against this elicitation.

2. Escobedo v. Illinois 1964: Sixth Amendment protections when investigation has become so focused as to make a suspect the “accused”

3. Brewer v. Williams 1977: Massiah Rule governs after formal charges. “Christian burial speech”. Officer intent is a factor. Was trying to elicit.

4. U.S. v. Gouveia 1984: 6th Amendment attaches at formal charges.5. Fellers v. U.S. 2004: 6th violated if arresting officers deliberately and

designedly set out to elicit information from the suspect.iii. Undercover Officers and State Agents

1. U.S. v. Henry 1980: Any conduct likely to elicit incriminating information is deemed deliberate. Jailhouse plant can be state actor, and thus violate 6th.

2. Kuhlmann v. Wilson 1986: Just listening with no conduct to elicit information is not a violation. Listening post is fine.

3. If not government agent, no violationiv. Continuing Investigations

1. Maine v. Moulton 1985: State should have known that talking about killing witnesses would turn to talk of the robbery, and thus violation of 6th.

v. Waiver of Sixth Amendment Protections1. Brewer v. Williams: Must show more than election to speak after

receiving warnings and waiving.2. Berghuis v. Thompkins: Relaxed standards. Must be unequivocal

invocation at first.3. Patterson v. Illinois 1988: Need not be separately informed of Sixth

Amendment right to counsel. Miranda warnings sufficient.vi. Two Differences Between Miranda and 6th

1. Waiver under Miranda even if suspect not told lawyer was trying to reach him. Under 6th, police must tell defendant.

2. Undercover allowed under Miranda. Not allowed under 6th (Henry)vii. Waiving 6th After Invoking

1. Michigan v. Jackson 1986: OVERRULED. Had said Edwards rule for 6th Amendment, and suspect must initiate.

2. Montejo v. Louisiana 2009: Overruled Michigan v. Jackson. Little deterrence here. Jackson too greatly makes invalid voluntary confession after knowing attempts to waive rights.

a. Under 6th, officers can approach after arraignment and get a knowing and voluntary waiver to counsel even without suspect initiation.

viii. 6th Amendment Exclusionary Rule1. Kansas v. Ventris 2009: Impeachment exception to 6th Amendment

exclusion. Still exclusion from case-in-chiefVII. IDENTIFICATION

a. Problems with eyewitnesses: Confidence grows stronger as result of repeated exposure to a suspect, one person’s identification can influence another person’s identification, people are overconfident in their memories, stress probably decreases person’s perception ability

b. U.S. v. Wade 1967: Counsel must be at all critical pretrial stages after arraignment (including lineup). Right to effective counsel.

i. Need an independent basis to make prior identification not impermissibly tainted. Totality of circumstances.

c. Gilbert v. California 1967: Per se rule of exclusion as to such testimony. Only effective sanction to ensure respect of constitutional right to counsel at critical lineup.

d. Kirby v. Illinois: No extension to pre-indictment lineup, because 6th hasn’t attached yete. U.S. v. Ash 1973: No right to counsel at photographic identification. f. Due Process Limitations

i. Stovall v. Denno 1967: Due Process fundamental fairness approach to assess identification procedures not governed by Wade-Gilbert. Totality of circumstances.

ii. Neil v. Biggers 1972: If unnecessarily suggestive identification procedure, need to be upheld as reliable by independent source. Biggers factors:

1. Opportunity to view, witness attention, prior description accuracy, any prior mistaken identifications, certainty of the witness at the time of identification

iii. Simmons v. U.S. 1968: Need to protect against identification so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable identification.

iv. Foster v. California 1968: Only time Due Process violation found for impermissibly suggestive police procedure. 6 inch height difference, unique jacket worn, twice could not identify, and only identified after Foster was only person in common between two lineups.

v. Manson v. Brathwaite 1977: Three interests under totality of circumstances to weigh for due process violation:

1. Reliability, the “linchpin” of the circumstancesa. Factors: Opportunity to view criminal during crime, degree of

attention, accuracy of prior description, level of certainty, time between crime and confrontation

2. Deterrence of police misconduct3. Administration of Justice

VIII. DISCRETIONa. Police, prosecutors, magistrates, grand juries, judges, correctional agents, parole and

pardon authorities, all have lots of discretion.b. There is no such thing as a full enforcement policy (generally). Too hard to manage.

i. Don’t want over-criminalizationii. BUT don’t want to appear soft on crime

iii. Speeding Enforcement Example vs. Mandatory Arrest for Domestic Abusec. Police Screeningd. Prosecutor Power (Most impactful)

i. Plea bargaining is hugeii. Nature of charges (Standard 3-3.9 in Charging Discretion)

iii. Decision not to prosecuteIX. HISTORY OF RIGHT TO COUNSEL

a. Purpose and Scope: 6th attaches for criminal prosecutionb. Powell v. Alabama 1932: Suspects require guiding hand of counsel at every step in the

proceedingsc. Johnson v. Zerbst 1938: Counsel required in all federal criminal proceedings unless

waivedd. Betts v. Brady 1942: Case-by-case analysis in state cases to determine if appliese. Hudson v. North Carolina 1960: Defendant needed lawyer because of prejudice of co-

defendant’s plea bargain.f. Chewning v. Cunningham 1962: Difficult legal question requires counselg. Hamilton v. Alabama 1961: Unqualified right to counsel in state capital casesh. Gideon v. Wainwright 1963: Right to counsel under 6th is fundamental right essential to

fair trials, and thus applies to the States. Overrules Betts v. Brady.