Search & Seizure

The Good Faith Exception & the Erosion of the Exclusionary Rule What is a search?
A. Katz Expectation of Privacy Doctrine: A fourth Amendment search or seizure only takes place if there is a violation of a persons reasonable expectation of privacy 1. Waiver of privacy right: Conduct can result in NO reasonable expectation of privacy a. Abandoned property b. Observable from aerial overview c. Observable by a person stationed on public property d. Public information obtainable by use of other senses 2. Trespass: If police commit a trespass or physical intrusion against a persons property, conduct is more likely to be found to violate REoP a. Presence/absence not dispositive B. Curtilage: land and ancillary buildings (yard, garage, driveway, etc.) 1. Typically there is REoP w/ respect to curtilage but NOT open fields C. Third Party Doctrine: transfer to a third party can indicate D no longer has REoP D. Trash/Abandoned Property: normally there is no REoP (Cali v. Greenwod) 1. Trash on curbsearchable 2. Trash on property probably not searchable until trash man comes onto property and picks it up

Plain View
A. Generally: police do not commit a Fourth search if they see object in plain view where officer has right to be in the position to have that view 1. Seizure: Officers generally cant seize item in plain view unless he is legally in spot where he can touch the item B. Requirements for Seizure of Plain-View Items 1. Officers didnt violate 4th in arriving at the place from which the items can be plainly viewed 2. The incriminating nature of the items is immediately apparent a. Officers must have PC to believe object is incriminating upon first sight

1. E.g. legally present officer sees a stereo, picks it up to read the serial number, learns by phone it is stolen the moment officer pick up stereo he did not have PC for the search performed by picking it up 3. Officers must have a lawful right of access to the object itself a. Officer sees pot plant in window from sidewalk cannot enter to seize, he has no lawful right of entry C. High Tech Devices Not in Public Use: when govt gains views NOT obtainable w/ naked eye, use of devices = search (Kyllo v. US) 1. Kyllo v. US: Thermal Camera. Both off the wall and through the wall are physical intrusion. D. Aerial Observation: When police us aircraft, anything police can see w/ naked eye fall within plain view so long as the airspace is public & navigable (Florida v. Riley) E. Other Senses: Plain view applies generally to smell, touch, sound 1. Plain Touch: Police must have the right to do the touching in the first place

Probable Cause
A. When Its Required 1. Before a judge may issue a warrant for search or arrest (4th Amendment) 2. Before police may make a warrantless search or arrest (Required to prevent avoiding warrants) B. Requirement for PC 1. PC to Arrest: It must be reasonable likely that a. A violation of the law has been committed AND b. The person to be arrested committed that violation 2. PC to Search: It must be reasonable likely that a. The specific items to be searched for are connected with criminal activities b. These items will be found in the place to be searched 3. Less Than 50-50 Chance: As long as police have particularized suspicion regarding existence of fact X, they need NOT reasonably believe X is more likely than not to get PC a. 1/3 chance suffices, e.g. cop stops car with three people, 1 bag of coke; he can arrest all three where equally likely it is anyones (Maryland v. Pringle) C. Inadmissible Evidence Allowed: Any trustworthy info may be considered for determining PC, even if the info wouldnt be admissible D. Only evidence known to magistrate at time of issuance is considered in reviewing whether PC existed E. Factual Errors 1. Reckless disregard for the truth invalid

2. Honest and reasonable police error Good faith exception (Maryland v. Garrison3rd floor double apartment)

Particular Information Establishing Probable Cause

A. Information From Criminal Informants: Totality of the Circumstances test (Illinois v. Gates Fla. Drug run) 1. Illinois v. Gates (Fla. Drug run): Overruled Aguilar-Spinelli two-factor test that relied on veracity and basis of knowledge 2. Factors to Consider a. Prediction of future events b. Known reliability of informant c. Basis of knowledge B. Non-Criminal Sources: courts are more lenient 1. Other Cops: Where Cop1 acts in response to statements from Cop2, PC only exists only if Cop2 acted with PC

Search Warrants
A. Who May Issue: neutral and detached magistrate B. Ex-Parte (one-sided) Proceeding: Searchee does not have the right/ability to contest the issuance C. Particular Description: 4th requires the warrant contain a particular description of the premises to be searched, and the things to be seized even an officer completely unfamiliar with the case would understand where to search and for what D. Execution: Procedures must not be unreasonable 1. Entry w/o Notice: Typically, knock and announce is required a. Preventing Destruction of Evidence: Officers may constitutionally enter w/o knock and announce if there is threat of immediate destruction of evid. 1. Richards v. Wisconsin: Hotel maintenance mandecision not to knock and announce must be reasonable b. Physical Danger to Police: Can justify no knock and announce 2. Search of Persons on Premises: Armed with only a search warrant, police may NOT automatically search everyone on the premises a. Unless police have PC to believe named items are on his person

b. Or unless person someone tries to leave and items are ones that could be carried away 3. Restricted Area: Police must confine to area specified and only look in places where items might possibly be/fit 4. Body Searches: Courts will determine reasonableness by weighing privacy interest against societys interest in the search 5. Good-Faith Exception: If invalid warrant is reasonably relied on, exclusionary rule doesnt apply (US v. Leon)

Warrantless Search and Seizure

Arrest
A. Not Generally Required: Even where police have sufficient time to get a warrant, it isnt required (US v. WatsonPostal inspector felony credit card sale in presence) B. Entry of Dwelling: Arrest warrant will generally be required for police to enter private premises to make an arrest 1. No Exigent Circumstances: If no EC, the police may NOT enter private home for warrantless arrest (Payton v. New Yorkpolice broke in and saw .30 shell) 2. Exigent Circumstances: No warrant is necessary where it would be impracticable to delay entry&arrest (Atwater v. Lago Vistachild seatbelt) a. Destruction of Evidence, physical danger, hot pursuit (felony) C. No exception for fine-only/minor crimes anycrime committed in officers presence is PC for arrest (Atwater v. Lago Vista) D. Probable cause doesnt need to be for the offense stated at time of arrest, as long as upon review there was PC for any crime E. Deadly Force: Police may not use deadly force unless the suspect poses immediate threat to the officer or others (Tennessee v. Garner) 1. Police need not abandon chase even if that is safer alternative to public and officer as opposed to deadly force (Scott v. Harris)

SILA
A. Person: Custodial arrest gives rise to authority to search a person. Officer need not think D is armed (US v. Robinsonheroin in cig pack) B. Police may generally search the area within control of arrestee

1. Limited Area Around D: must be theoretically within Ds immediate control (Chimel v. Caliwhole house SILA) C. Protective Sweep: Where arrest takes place in the suspects home, officers may conduct a protective sweep of all or part of the premises, if they have reasonable suspicion based on specific and articulable facts that another person may be present in areas to be swept 1. Specific and articulable facts not needed for immediately adjoining the place of arrest (closets, etc.) 2. Reasonable Suspicion: More than inchoate and unparticularized suspicion or hunch based on specific and articulable facts taken together with rational inferences from those facts D. Contemporaneity of Search: For search to be ILA, it neednt be exactly contemporaneous; some time before or after can still be ILA as long as it is closely connected 1. Prior Search: There must already be PC to make the arrest and search is protectively motivated 2. Much Later: still considered ILA so long as search is made of objects in suspects possession @ time of arrest E. Legality: Arrest made without PC will result in suppression unless some other exception to warrant requirement (e.g., prevention of destruction of evidence) justifies the warrantless search F. Vehicle Searches ILA: In most driver arrests for traffic violations, police will NOT be entitled to search the passenger compartment (Arizona v. Gant) 1. Two-Part Rule: SILA doctrine allows passenger-compartment search only if one of two things is true: a. The arrestee has access to the passenger compartment at the moment of the search (i.e. not allowed if he is in cruiser, on curb, etc.) OR b. The police reasonably believe that the passenger compartment might contain evidence of the offense FOR WHICH ARREST WAS MADE (Gant) 2. Major Change in Law: Gant (2009) is totally new Belton was prior rule, allowing full passenger compartment search SILA 3. Search for Evidence of Offense That Led to Arrest: even if driver has been secured and has no immediate control over passenger compartment, police may search if they reasonably believe that the passenger compartment contains evidence of the arresting offense Almost never applicable to traffic arrests; applies to outstanding warrants for drugs, etc. 4. Other Opportunities for Vehicle Search: Gant only applies to SILA, it doesnt affect other long-established doctrines

a. Driver Possibly Dangerous: e.g. police are interrogating suspect without arresting him, if they reasonably believe that he might gain access to a weapon upon returning to his vehicle, they may search vehicular stop and frisk b. PC to Search: If there is PC to believe the vehicle contains contraband or evidence of crime, police may search any part of vehicle where evidence might plausibly be found 5. EXCEPTION: Inventory searches are permissible without pc or a warrant (Colorado v. Bertine)

Exigent Circumstances
A. Generally: Can justify warrantless searches, even where SILA exception to warrant requirement doesnt apply B. Destruction of Evidence: If police have (1) PC & (2) they reasonably believe the search/seizure is necessary to prevent the possible imminent destruction of evidence 1. Can be seizure of person, i.e. not letting D back into house while police try to secure a warrant 2. Police-Created Exigency: If the polices conduct created or manufactured the threat of destruction of evidence, the police will need a warrant Police created exigencies are not true exigencies a. Narrowly Interpreted: This exception will only nullify polices right to enter w/o a warrant if the police gain entry to premises by means of actual or threatened 4th violation (Kentucky v. King) 1. When police have PC to get a warrant, no lawful conduct they engage in can be held to create exigency 2. Objective factor test; not subjective intentbad faith irrelevant 3. Does not matter if exigency is a reasonably foreseeable byproduct of police investigative tactics, so long as police act reasonably under 4th 4. Doesnt matter if reasonable person would believe entry was imminent and inevitable by police tactics 5. Test requires more than mere causation 6. Doesnt matter if cops had time to secure a warrantvalid tactical reasons for not doing so

7. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue. (Kentucky v. Kinghot pursuit; wrong apartment) C. Danger to Life: Warrantless search may be allowed where danger to life is likely if police dont act fast D. Hot Pursuit: If police are pursuing felony suspect, police can enter to search for suspect and weapons 1. Plain-view often gets tied in

Vehicles
A. Two Special Exceptions 1. Search at Station After Arrest: when police arrest driver and take him and car to station, no search warrant is required 2. Field Search for Contraband: Where the police have PC to believe a car is being used to transport contraband, and stop it, they can search the car and any closed containers in the car; allowable even without impounding the car (California v. CarneyGay pot motor home) a. Passengers Belongings: Once police have PC to believe car contains contraband, they may search closed containers that could hold that type of contraband, even if containers belong to passengers, even if there is no PC to believe passenger is involved (Wyoming v. HoughtonMeth, syringe, purse) 1. Police cannot search passengers person in that situation, though b. PC for Container Only: Even if police only have PC for closed container inside car, they may stop the car and seize the open container w/o a warrant (California v. Acevedo) B. Actions Directed at Passengers: Legal stop and/or arrest does NOT give officer right to search the passengers person, unless the officer has (1) PC to believe passenger possesses evidence of a crime OR (2) PC to arrest the passengermaking it a SILA 1. What Officers CAN do to Passengers a. Demand passenger step out of vehicle, for officer safety b. If officer has reasonable fear that passenger is armed/dangerous, he may frisk and pat down, for officer safety c. If officer has right to search vehicle, hey may search any container in the car that might contain thing being looked for, even if he knows container belongs to passenger and he has no PC to believe item is in passengers container

d. Terry pat down C. Lack of PC 1. PC Needed for On-Scene Search: Police need PC to believe they will find incriminating evidence or contraband; Unless driver is arrested AND (1) not restrained, i.e. access to vehicle OR (2) reason to believe theyll find evidence relating to arresting offense 2. Impoundment: Police can search impounded vehicle without a warrant

Lesser Intrusions: Stop & Frisk

A. Generally: Sometimes police opt to briefly detain rather than arrest; 1. Right to Stop: When cop observes unusual conduct, which leads him to reasonably conclude that criminal activity is afoot, he may briefly detain in order to inquire; NO PC NEEDEDreasonable suspicion suspicion based on objective facts, that individual is involved in criminal activity a. Reasonable Suspicion: More than inchoate and unparticularized suspicion or hunchbased on specific and articulable facts taken together with rational inferences from those facts. b. Florida v. J.L.: Police got anonymous tip that JL had gun; frisked based on that alone. Court said anonymous tip alone is not enough for a S&F c. Fla. V. Royer: Suitcasebackroom search. Police may not seek to verify suspicions by means approaching conditions of arrest (reasonable person test). An investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. Investigative methods employed should be least intrusive reasonably available to verify or dispel suspicion. States burden to show the seizure was sufficiently limited in scope and duration. Statements given during illegal detention are per se involuntary. Because officers had only reasonable suspicion not probable cause to believe he was transporting narcotics until they opened the suitcase and found pot, they had no legal right to put Royer in custody. 2. Protective Frisk: Once legal stop is made, and nothing during the encounter dispels reasonable fear for his or others safety, the officer may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons. (Terry v. Ohio) B. Terry Stop/Search of Possessions: Police may temporarily detain possessions on reasonable suspicion to investigate; investigation must be appropriately limited in scope and duration. (US v. Placeluggage; 2 airports; 3 days) C. Terry Stop/Search of Vehicle: Rule allows for the stop of a vehicle under standards above 1. Police may search passenger compartment for weapons even if suspect is no longer inside car, if: 8

a. The officers reasonably believe that the driver is dangerous and may gain control of weapons that may be in the car, AND b. They look only in those parts of the passenger compartment where weapons might be placed or hidden D. Degree of Probability: Something less than PC to arrest or search is required for a Terry stop 1. Vague suspicion is not enough (Brown v. Texas) 2. Modest suspicion is enough; totality test to analyze all of Ds behavioreven lawful behavior 3. Flight as Cause for Suspicion: might be enough to justify search; take into account totality though (Illinois v. Wardlowflight & shady neighborhood) 4. Informants Tip: Taken into account under totality test a. Prediction of Future Events: key factor is if CI predicted likely otherwise unkowables b. Special Knowledge: Not enough that CI knows e.g. suspects physical appearance/present locationthere needs to be indicia of reliability E. What Constitutes a Stop? 1. Reasonable Person Test: In view of totality, would a reasonable person believed he was not free to leave a. Factors: 1. Threatening presence of several officers 2. Display of weapon by officer 3. Shows of authority 4. Physical touching by an officer 5. Language or tone indicating that compliance might be compelled 2. Chase seizure F. Stop v. Arrest: at some point stop is sufficiently long and intrusive so as to constitute arrest Arrest requires PC v. Stop requires RS a. Factors 1. No longer than reasonably necessary (than circumstances justify) 2. No more intrusive than needed to verify or dispel the officers suspicion a. Can require oral identification, Drivers license? 3. Transporting D to another spotpolice cannot transport someone to station without PC (Dunaway v. NY) 9

G. Scope of Frisk: Must be limited to a search for weapons, or other sources of danger. CANNOT be a search for contraband or evidence 1. Armed or Dangerous: Search is only permissible if officer has reasonable belief that D is armed/dangerous. If Ds hands are empty, he gives no indication of possessing a weapon, he makes no gestures indicating an intent to commit assault, and acts generally non-threating, the officer probably may not conduct even the basic pat-down H. Full Disclosure: Police need not advise stopee of his right not to cooperate (US v. DraytonBus)

Consent Searches
A. D Doesnt Need to Know he Can Refuse: consent is effective whether knowing & intelligent or not (Schneckloth v. Bustamonte5 guys brothers car) 1. Voluntary: to be effective, must be voluntaryrather than product of duress or coercion Voluntariness is a totality of the circumstances test, knowledge of right to refuse is one factor 2. Custodial Consent: even if consent unknowing of right to refuse is given in custody, still effectivedifferent from Miranda analysis B. Claims of Authority to Search: Courts distinguish between false claims of present authority and threats of future action; false claim of present authority is much more likely to invalidate the voluntariness 1. False Claim of Present Authority: Consent gained after police falsely state they have a warrant is invalid 2. Consent Induced by Reference to Invalid Warrant: Police truthfully state that they have a search warrant, but the warrant is invalid (e.g. rendered with lack of PC), the consent is invalid 3. Threat to Obtain a Warrant: Analysis depends whether police have grounds for warrantif they do then consent will be effective; if they dont have grounds for a warrant it is likely that the consent will be nullified C. Misrepresenting Identity: If police are undercover, deception does not destroy consent D. Physical Scope of Search: Where Ds consent is reasonably interpreted to apply only to a particular physical area, a search extending beyond that area will be invalid unless it falls under another exception to the warrant requirement

Consent by Third Persons

A. A may not consent to a search that would violate Bs EoP, UNLESS A & B exercise joint authority over the premises

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B. Joint Authority: Joint access to AND Joint expectation of privacy in the place to be searched a. E.g.: roommates, as to common area; husband and wife; social guest, where homeowner gives consent to search and evidence is used against the guest 1. D is Absent When 3rd Party Consents: Consent is generally effective if 3rd party (1) actually has or (2) is reasonably believed by police to have joint authority over the premises a. Reasonable Mistake: Even if police were mistaken about 3rd partys authority, so long as that mistake was reasonable, the search will not be invalidated even if 3rd party flat out lies about being a resident there 2. D is Present and Objecting: 3rd party consent is NOT binding on D; where D and 3rd have equal claim to premises a. So long as parties arent living in recognized hierarchy (Georgia v. Randolph)

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5th AmendmentCustodial Interrogations

Miranda
Dickerson tells us Miranda is constitutional, not just prophylacticexclusion is prophylactic though; not a const. violation Chavez tells us that the violation of Mirada occurs if/when statements are introduced in criminal trial. Narrow view of Miranda, compulsion doesnt violate self-incrimination. Miranda warnings are just a police tactic for protecting the 5th right against self-incrimination. If the constitutional right itself was not violated then no harm no foul. A. Components of MirandaProtections dont kick in until D is in custody AND interrogated 1. Custody: would a reasonable person given the totality of circumstances feel free to leave? a. Factors to Consider: 1. Location of interrogation (foreign or familiar to suspect?) 2. Duration 3. Whos present? b. Miranda sought to neutralize an atmosphere viewed as inherently hostile and coercive 1. Suspect is in a police dominated setting cut off from the world c. Only applies in custodial situations d. Minor Suspect: age comes into determining whether a reasonable person in the suspects position would believe he was in custody (J.D.B. v. North Carolina) 2. Interrogation: Questioning initiated by police officers. a. Protections are triggered by interrogation b. Police are allowed follow-up questioning to clarify a volunteered statement c. Innis (handicapped shotgun) : 2 part test for whether interrogation occurred 1. Words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the suspect. a. Innis: Court held that officers could not have expected elicitation. They had no reason to know Innis was peculiarly susceptible to an appeal to conscience concerning handicapped safety 2. Does the suspect perceive that he is being subjected to psychological pressures i.e. coerced?

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a. Perkins (undercover prisoner): Miranda doesnt apply because suspect did not perceive that he was being questioned, thus not feeling coercive pressures that trigger protections. 3. Substance and Adequacy of Warnings a. The 4 warnings are deemed essential to counteract compelling pressures inherent in the process of custodial interrogation b. Fully effective equivalents are permissiblecourt was not establishing a constitutional straitjacket c. No amount of circumstantial evidence will stand in the stead of warnings 4. Invocation a. Right to Counsel 1. Must be clear and unequivocalpolice are not required to clarify ambiguity (e.g. maybe I should talk to lawyer insufficient) 2. 6th Amendment Invocation during court appearance does not constitute Miranda invocation when he is subsequently questioned about a different crime. 3. Must occur during or immediately before interrogation 4. The right is to have a lawyer present during questioning, not just a right to consult with lawyer prior to questioning (Minnick v. Mississippi) 1. WaiverTotality of the circumstances a. Voluntariness of waiver and of confession are analyzed separately. Even after voluntary waiver statements can be suppressed if coerced. b. Knowing & Intelligent: Was the waiver made with an awareness of the rights being abandoned and the consequences of doing so? 1. D understood that he had right not to talk to police or to talk only with counsel present 2. D appreciated the consequences of foregoing these rights and speaking to police c. Voluntary Waiver: Product of a free and deliberate choice rather than intimidation, coercion, or deception (Moran v. Burbine) 1. Moran v. Burbine (locked out attorney): D must invoke Miranda rights for himself. Ds waiver was still knowing an intelligent absent the info

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that lawyer was retained. Events outside presence of D cannot have bearing on his capacity to comprehend and knowingly relinquish rights. 2. Colorado v. Connelly (God told me to confess): sole concern of 5th/Miranda is coercion. 5th privilege is not concerned with moral/psycho pressures outside official realm

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Public Safety Miranda Exception

A. Generally: Miranda warnins are unnecessary where the questioning is reasonably prompted by a concern for public safety. 1. Objective Standard: existence of a threat to public safety is objective test

Waivers and Invocations of Miranda Rights5th Amendment Right to Counsel

A. Generally: Suspect may either waive or invoke his Miranda Rights 1. 2 Different Rights: The right to have questioning cease until consultation w/ lawyer and the right to remain silent are separate and may be separately invoked/waived B. Waiver: must be knowing, intelligent, and voluntary 1. Knowing & Intelligent: Was the waiver made with an awareness of the rights being abandoned and the consequences of doing so? 1. D understood that he had right not to talk to police or to do so only with counsel present 2. D appreciated the consequences of foregoing these rights and speaking to police a. The fact that suspect is answering questions is insufficient alone to constitute proof of knowing and voluntary waiver. There must be affirmative evidence of bothBoP on prosecution. 2. Voluntary: Product of free and deliberate choice rather than intimidation, coercion, or deception (Moran v. Burbine) a. Moran v. Burbine (locked out attorney): D must invoke Miranda rights for himself. Ds waiver was still knowing an intelligent absent the info that lawyer was retained. Events outside presence of D cannot have bearing on his capacity to comprehend and knowingly relinquish rights. b. Colorado v. Connelly (God told me to confess): sole concern of 5th/Miranda is coercion. 5th privilege is not concerned with moral/psycho pressures outside official realm 3. Express Waivers: signed waiver form, orally conveys understanding of rights and willingness to talk anyway. Valid in absence of coercion. 4. Implied Waivers: In some cases waiver can be clearly inferred from the actions and words of the suspect a. Answering of Questions: Suspect must indicate that he understands his rights and then answers questionsprobably waives both

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b. Additional Factors 1. D was familiar with justice system; having been arrested and interrogated on multiple recent occasions 2. D answers some questions but refuses to answer othersmakes it likely that D understands he doesnt have to speak c. Test 1. Suspect was given Miranda warnings 2. Suspect understood the warnings 3. Suspect answered questions following warnings C. Invocation must be clear and unequivocal of EITHER Miranda right 1. Must invoke during or right before questioning 2. Police Can Keep Trying: Until a clear and unequivocal invocation of either right has occurred, the police may continue to question the suspect and/or repeatedly request a waiver. a. Berghuis v. Thompkins: 2.75 hour interrogation, suspect sat silently without clearly invoking right to remain silent. Do you pray to god to forgive you for shooting that boy down? Yes. Court said he failed to invoke D. Waiver After Successful Invocation 1. Right to Counsel: Interrogation must cease until attorney is present, unless suspect initiates (Edwards v. Arizona) a. Edwards v. Arizona: Police may resume interrogation even in the absence of counsel if the suspect initiates communication. Edwards invoked and at a second police-initiated meeting they played tape of coconspirator implicating him. Court rules under Innis that this was the functional equivalent of interrogation and his subsequent admission was inadmissible. 3 factor Test for Edwards satisfaction 1. Counsel was made available to D OR 1. Suspect initiated conversation AND 2. Knowing, intelligent, and voluntary waiver b. Edwards rule is designed to prevent badgering a D into waiving previously asserted Miranda rightsstatements made in violation of this rule are per se involuntary

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c. Responding to Questions: Waiver not established merely by suspect responding to later police-initiated interrogation, even if he is reread his rights. (Edwards v. Arizona) d. Break In Custody: Rule barring police-initiated interrogation after invocation does not apply after substantial break in custody. Once the suspect has been out of custody for 14 days, police may initiate absent counsel (Maryland v. Shatzer) 1. Maryland v. Shatzer: D was in prison on unrelated crime, detective questions him on sex assault allegations. D invokes. D returns to general population. 2.5 years later a different detective questions D at prison. D signs written waiver of Miranda rights. Court said the break in custody was sufficiently long to have dissipated the coercive effect of the initial interrogation. E. Right to Silence: No bright line rule like the no-police-initiated-interrogation rule for counsel, police may reinitiate 1. Scrupulously Honored Standard: The admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored. (Michigan v. Mosley) a. Michigan v. Mosley (Upstairs 2nd interrogation) D is interrogated about two robberies after receiving Miranda warnings. He says he does not want to answer police questionsquestioning terminated. Several hours later, D is taken to a different floor of the building, re-mirandized, and questioned by different cop. Court held no violation of right to remain silent. Ds right not to be questioned was not violated by resumption of questioning. The police scrupulously honored his right when they immediately ceased interrogation. Because a significant period of time had passed and there were fresh warnings, his right was honored. b. Test: 3 requirements for court to deem the invocation of the right to remain silent was scrupulously honored 1. The police immediately ceased upon invocation 2. There was a significant passage of time between cessation and resumption (cooling off period); AND 3. Prior to second interrogation, police gave second set of warnings and there was knowing, intelligent, and voluntary waiver 2. Ambiguous Invocation: invocation must be clear and unequivocal of either Miranda right. a. Ambiguous invocation is not invocation at all

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b. Police may continue questioning without clarifying suspects intent

6th Amendment Right to Counsel

A. Voluntariness of Confession: A confession obtained after 36-hour interrogation is deemed involuntarycompelledgiven totality of circumstances. (Ashcraft v. Tennessee)

Entitlements of Right to Counsel

B. Massiah Doctrine: primary concern is secret interrogation equivalent to direct police interrogation 1. Massiah v. US (Car-Friend-Wire): D had been indicted and retained counsel, made incriminating statements to wired codefendant in car. Court held that once adversarial judicial proceedings have commenced, Govt efforts to deliberately elicit statements from him in absence of his attorney (open or covert elicitation) violate the 6th. 6th RtC meaningless if circumscribable 2. Brewer v. Williams (Des Moines I): SCt. said Williams was denied 6th right to counsel, after arraignment because police deliberately elicited incriminating statements. 3. UNLIKE 5th AMENDMENT a. Does not require finding of police coercion b. Does not require custody OR interrogation c. Looks to officer intent, 5th looks at susceptibilities and perceptions of suspect d. 6th is offense specific C. Deliberately Elicited: Does not matter that no questioning occursquestion of intent 1. Jailhouse Snitches a. US v. Henry: FBI informant in Henrys cell. Court stuck down saying FBI intentionally set up a situation likely to induce Henrys self-incrimination informant was not a passive listener because he stimulated convos b. Contrast w. Kuhlman v. Wilson: Informant did nothing to stimulate convos beyond establishing a listening post, court said he was passive listener D. Initiation of Judicial Proceedings: Triggering even for application of Massiah is Inidcitment, arraignment, or preliminary hearingthen the suspect is formally accused

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Waiver of 6th Right to Counsel

A. Appointed v. Retained: Same standard applies B. Knowing, Intelligent, & Voluntary: Prosecution must show by preponderance that D acted knowingly and intelligently 1. Easier Bar to Meet Than 5th: Usually Miranda warning + not asking for counsel will be a valid waiver of 6th C. No 6th Amendment Cutoff: Court has said Edwards provides enough protectionwhich terminates interrogation until counsel is provided or suspect initiates (Montejo v. LA) D. Waiver After Pre-Trial Appointment: Where D has attorney and trial is impending, police can question the suspect outside presence of counsel. Police may ask the suspect whether he is willing to answer questions; his willingness to answer will constitute a waiver of 6th right to counsel (Montejo v. Louisiana) 1. Montejo v. Louisiana: Montejo was appointed counsel, which he neither requested nor denied. Later that day police read Montejo his Miranda rights and he agreed to go along on trip to locate murder weapon. In car he wrote inculpatory apology letter. Letter was admitted. 1. Michigan v. Jackson: Brought Edwards rule to 6th a request for counsel at arraignment should be treated as invoation of 6th rt. To counsel at every critical state no subsequent police-initiated interrogation a. Montejo Holding: Overruled Jackson. The fact that someone is represented does not bar police from initiating contact whether that D has dont nothing at all to express his intentions in relation to his 6th Amendment rights. Maybe that D would be perfectly amenable to speaking with police. Edwards and Jackson were meant to prevent badgering a D into changing his mind. A D who never asked for counsel has not yet made up his mind. 1. i.e. Where D has not asserted his 5th right to counsel that must be invoked, and relies on 6th right to counsel that automatically attaches at arraignment, police may initiate interrogation

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Exclusionary Rule and Derivative Evidence

A. Generally: Not constitutionally required, judge made police deterrent B. Fruit of the Poisonous Tree Doctrine 1. Derivative evidence follows an analysis similar to but for and proximate causation 2. General Rule: inadmissible where evidence is discovered by exploitation of initial illegality; obtained by means sufficiently removed from the initial illegality its ok 3. Attenuation: Courts look for significant intervening act that breaks causal chain. Court wont ever permanently disable a cooperative witness. Court wont apply the doctrine in a way that would permanently disable a cooperative witness 4. Analysis: Courts weigh deterrent effect and the societal costs of excluding relevant evidence a. Time between illegality and acquisition b. Occurrence of intervening acts; free choice weighs heavy c. Flagrancy of initial illegality. 5. Attenuation can also occur when suppression wouldnt serve the interest protected by the constitutional mandate that was violated. a. Hudson v. Michigan (knock-2second wait): Knock-and-announce rule is to protect human life. The right violated is sufficiently attenuated from the derivative evidence. 6. Limitations on Derivative Evidence a. Indpendnet Source: derivative evidence wasnt obtained solely by exploiting original illegality 1. Murray v. US: Police illegally entered Boston warehousegot warrant on sufficient PC without mention of illegally seen drugs. b. Inevitable Discovery: Would have ultimately been discovered anyway 1. Nix v. Williams (Des Moines II): Court decided search party would have found body eventually anyway. Inevitable discovery must rest on readily verifiable basis in fact. C. Miranda Violation Poisoned Fruit

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1. Statements obtained in violation of Miranda are not admissible but derivative evidence is admissible that stems from the violative statement 2. Missouri v. Seibert (Midstream recitation of warnings): Once the cat is out of the bag subsequent warning and reobtaining confession is no good 3. US v. Patane (felon-driveway-firearm): D questioned without warnings. Under Chavez, so long as the statement wasnt admitted at trial there is no violation of selfincrimination. Derivative evidence from unwarned statement is admissible. D. Exceptions 1. Good Faith Exception: Reasonable reliance on search properly issued search warrant will not mean exclusion a. Reliance on Non-Existent Warrant: If police reasonably but mistakenly believe there is outstanding arrest warrant SILA evidence wont be excluded where warrant was clerical error. So long as nonrecurring and attenuated negligence by police (Herring v. US) 2. Exception to Knock and Announce: See Hudson supra

Line-Ups, Show-Ups and Other Pre-trial Identification

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