CRIMINAL PROCEDURE OUTLINE

The 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place t be searched, and the persons or things to be seized.

I.

Exclusionary Rule
Provides that evidence obtained in violation of a Ds constitutional rights will not be admitted against her at trial. A remedy that discourages the police from violating a Ds 4th, 5th, and 6th Am rights Rationale is deterrence; if police know the evidence wont be admissible at trial, theyre less likely to conduct an illegal search & seizure Weeks v. United States establishment of the exclusionary rule Wolf v. Colorado arbitrary searches and seizures by state and local police violate the concept of ordered liberty and, therefore, violate the 14th Am due process clause but, the gov. can still use the fruits of its agents unconstitutional conduct in your criminal prosecution Rochin v. California stomach pumping case Mapp v. Ohio non-existent warrant; all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in court Katz v. United States2 prong test: 1- Was there an expectation of privacy? 2Was the expectation one that society is prepared to recognize as reasonable? [What a person knowingly exposes to the public, even in his home or office, is not a subject of 4th Am protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.] United States v. White recording of conversations deemed outside of 4th Am protection; no justifiable and constitutionally protected expectation that a person with who you are conversing will not reveal the conversation to police 1. False Friends: Hoffa v. United States assume the risk that listener is who he claims to be; moment you speak you lose control of words; expectations of trust are not protected by the 4th Amendment Smith v. Maryland pen register case; numbers dialed on a telephone do not carry with them an expectation of privacy since the phone company has access to these numbers. Beeper Case: United States v. Knotts a person traveling on public streets has no reasonable expectation of privacy in his movements.

II.

Search

Dog sniffs: United States v. Place & Illinois v. Caballes a canine sniff does not require opening luggage nor expose items that are hidden from public view and does not constitute a search; the sniff is deemed official conduct that does not compromise any legitimate interest in privacy. A. Open Fields Open Fields: Hester v. United States any entry into an open field does not implicate the 4th Am (not a person, house, paper, or effect) - Oliver v. United States an open field is any unoccupied or undeveloped area outside the curtilage of a home, although it need not be open or a field; can include areas such as densely wooded property. B. Curtilage - All buildings and surrounding areas in close proximity to a dwelling, or such places as are adjacent, necessary, and convenient to a dwelling & are habitually used for family purposes. - Only police searches affecting a residence and its curtilage require 4th Am protection. - Police observation of things or activities outside the curtilage does not constitute a 4th Am search. United States v. Dunn 4 factors: 1- The proximity of the area claimed as curtilage to the residence itself; 2- Whether the area is included in an enclosure around the residence, ex.-a fence; 3- The uses the area is put to; and 4- Whether the resident has taken steps to prevent observation of the area Surveillance of Curtilage: California v. Ciralo & Florida v. Riley information gained from aerial surveillance does not fall within the protections of the 4th Am Surveillance outside the cartilage, near a house, but not in an open field: - California v. Greenwood no reasonable expectation of privacy in garbage left outside the curtilage of a home - Dow Chemical Co. v. United States the use of aerial photography did not fall within the protection of the 4th Am b/c it was not an area immediately adjacent to a private home, where privacy expectations are most heightened. Kyllo v. United States the use of sense-enhancing technology regarding the interior of a home, that could not have otherwise been obtained without a physical intrusion into a constitutionally protected area constitutes a search at least where the technology in question is not in general public use. Factors to consider in determining what constitutes a search: 1- Nature of place observed (home protected far more than open fields; Oliver & Dunn) 2- Steps taken to enhance privacy (curtilage, open field) 3- Degree of intrusion

4- Degree to which surveillance required physical intrusion to private property 5- State of art new technology (if activities in home could not be learned without it = search; Kyllo) 6- Nature of activity being observed (intimate activities raise 4th Am issues)

III.

Seizure
Meaningful interference with an individuals possessory interest in that property. 2 categories: property & persons Unlike a search which affects an individuals privacy interest. United States v. Karo the placement of a beeper into a can does not violate anyones 4th Am rights; there was no meaningful interference with the individuals possessory interest 4 categories of property that may be seized: 1. Contrabandevidence that may not be lawfully possessed by a private party 2. Fruits of the crime 3. Instrumentalities used in the commission of an offense, ex.- weapon or getaway car 4. Mere evidence (an item of value to the police solely b/c it will help in the apprehension or conviction) PC to arrest exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested PC to search exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence subject to seizure will be found in the place to be searched. 3 rules for PC: 1- All warrants (search and arrest) require probable cause; 2- All arrests are deemed unconstitutional w/o PC (regardless if you have a warrant); 3Most searches require PC Spinelli v. United States applies the Aguilar 2-prong test: 1. Basis of knowledge of informant in question 2. Reliability and veracity of information Illinois v. Gates rejects the Aguilar test and adopts a totality of the circumstances test; looks at the Aguilar test in the light of all the circumstances and asks: does a reasonably cautious person have reasonable suspicion to suspect the person of the crime? (must have MORE that reasonable suspicion though); strength of one prong may compensate for the weakness of the other Warrants Based on Informants Tips

IV.

Probable Cause

Under Spinelli, to give rise to probable cause an infromans tip either contain (1) a sufficient statement of the underlying circumstances from which the informant gained his knowledge or (2) information supporting the applying of the officers belief that the informant is reliable and credible. Gates reaffirmed that a search warrant based on an tip may be properly issued if, given the totality of the circumstances set forth in the warrant application, including the veracity, basis of knowledge, and corroboration of the informants information, there is a fair probability that contraband or evidence will be found in the place to be searched. Franks v. Delaware D may challenge the truthfulness of statements made under oath in an affidavit supporting a warrant under limited circumstances (Franks hearing) Anticipatory Warrants - A warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place No constitutional requirement to obtain arrest warrant if felony arrest made in public (Watson) For a warrantless misdemeanor arrest in a public place, in addition to PC, it is necessary that the offense occur in the PO presence (i.e. within sight or other senses. Warrantless public seizure of contraband/evidence is constitutional Payton v. New York Unreasonable searches or seizures conducted w/o any warrant at all are condemned. The physical entry of the home is the chief evil against which the wording of the 4th Am is directed. Absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is PC to believe that incriminating evidence will be found within. Proceedings after a warrantless arrest: Gerstein v. Pugh (Gerstein hearing) a jdx must provide a PC determination within 48 hours after a warrantless arrest, absent a bona fide emergency or other extraordinary circumstance. Executing an arrest: use of forceTennessee v. Garner use of deadly force to prevent the escape of a fleeing felon is unreasonable unless the officer has PC to believe that the suspect poses a threat of serious physical harm, either to the officers or to others if the suspect is not immediately taken into custody Exceptions to the Payton rule: Minnesota v. Olson A warrantless intrusion may be justified by the following: 1. Hot pursuit 2. Imminent destruction of evidence

V.

Arrest Warrants

3. To prevent the suspects escape 4. Risk of danger to the police or other persons inside (or outside) the dwelling - In the absence of hot pursuit, there must be at least PC to believe that one or more of the other factors justifying entry were present and that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered. Arrests in a 3rd persons residence: Steagald v. United States

VI.

Search Warrants
A. Elements of a Valid Search Warrant - Process (neutral & detached magistrate, sworn affidavit, particularity req.) - Time of Execution (usually executed w/in a specified time period; during the day) - Means of entry (knock & announce requirement) - How long must you wait? (20 seconds) Lo-Ji Sales, Inc. v. New York B. Execution of a Search Warrant Knock & Announce (purpose): 1- protection (avoidance of violent conduct) of occupants or PO; 2- avoid destruction of property; 3- reduce invasion of privacy Wilson v. Arkansas Richards v. Wisconsin 1. Executing a warrant after entry: Once officers are lawfully on the premises to execute a warrant they may: 1Search containers large enough to hold the criminal evidence for which they are searching; 2- seize an object not described in the warrant, if they have PC to believe it is a seizable item (contraband, or a fruit, instrumentality or evidence of a crime); 3- information that becomes available to officers immediately before or during the execution of a warrant may require them to cease or narrow their search, notwithstanding the dictates of the warrant. 2. Searching persons during the execution of a warrant: Must have independent PC & justification that an exception exists (consent/exigent circumstances) a. Ybarra v. Illinoispolice must have independent probable cause to search the person as well as some justification for conducting the search without a warrant, i.e., they must be able to point to an exception to the warrant requirement. 3. Seizure of persons during warranted searches: A warrant to search a resident for contraband founded on PC implicitly carries with it the limited authority to detain the occupants of the premise while a proper search is conducted. (Michigan v. Summers)

VII. The Warrant Requirement

A. Exigent Circumstances EC only lasts as long as the exigency (ex. If pursuing a felon inside a home, once you grab him, the exigency no longer exists) Requires PC (this is an independent question from the search warrant exception) 1. Warden v. Hayden 2. Exigencies that might justify a warrantless entry of a home to make an arrest or conduct a search: - Hot pursuit of a fleeing felon - Imminent destruction of evidence - The need to prevent a suspects escape - Risk of danger to the police or other persons inside or outside the dwelling In the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present ant that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered. 3. The Emergency doctrine (community caretaker function) Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. PC is not required (means you dont need a SW) B. Searches Incident to an Arrest (SILA) Justifications for SILA exception: arrest creates exigency; when arresting a person in the home its more important to secure the premises; once you place the person under arrest and you conduct the limited search (within the scope) then the exception ceases to exist 1. Chimel v. California a. Buie search during a SILA, PO can search closets and rooms adjoining the place of arrest (a protective sweep) 2. Principle of particular justification: The police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, and the scope of a search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. 3. United States v. Robinson 2 prong test: 1- need to disarm suspect in order to talk into custody; 2- need to preserve evidence C. Arrests of Automobile Occupants 1. New York v. Belton PO can search contemporaneously with arrest a. Knowles v. Iowa b. Atwater v. City of Lago Vista

D. E.

F.

G.

c. Thornton v. United States held that Belton applies to recent occupants too 2. Arizona v. Gant 2 prong test: 1- cannot search after arrestee is secured and can no longer access vehicle; 2- must have reason to believe evidence of the offense will be found Pretextual Stops 1. Whren v. United States routine traffic stop provides enough PC to search Cars & Containers Container = any object capable of holding another object All containers treated alike under the 4th Am; only container not treated equally are clear containers, i.e., ziplock bags plain view 1. Chambers v. Maroney 2. California v. Carney 3. United States v. Chadwick if arrestee is separated from the container (locked) then a SW must be obtained a. Containers coincidentally in cars: When PC exists to search a car, may also search any container found during the car search provided the container is large enough to hold the evidence they are looking for. 4. California v. Acevedo The police may search an automobile and the containers within it where they have PC to believe contraband or evidence is contained. a. Wyoming v. Houghtonyou can search any container in a car, even those related to passengers Plain View (and Touch) Doctrines An item is in plain view and subject to a warrantless seizure if: - PO observes it from a lawful vantage point; - He has a right of physical access to it; and - Its nature as an object subject to seizure is immediately apparent when he observes it (evidence, contraband, fruits of the crime, etc.) An exception to the seizure doctrine, not search 1. Horton v. California 2. Arizona v. Hicks cannot move items, need search warrant, probable cause and additional exigent circumstances Consent 1. Schneckloth v. Bustamonte a. Totality of the circumstances 2. Third Party consent: Georgia v. Randolph

Warrantless search of a shared dwelling over express refusal of consent by a physically present resident cannot be justified as reasonable 3. Apparent Authority a. Illinois v. Rodriguez o Warrantless entry of a resident is valid when it is based on the consent of a person whom PO at time of entry reasonably (but incorrectly) believe has common authority over premises 4. Scope of consent: Florida v. Jimeno Standard for measuring scope of Ds consent under 4th Am is that of objective reasonablenesswhat would the typical reasonable person have understood by exchange between PO and D? Validly obtained consent justifies an officer in conducting a warrantless search, with or without PC To be valid, consent must be: 1- Granted voluntarily; 2- Obtained with real or apparent authority to give consent; and 3- Scope of search cannot exceed consent granted Consent is not voluntarily given in response to an PO statement that the PO has come to search w/ a warrant when in fact, there is none, or they will get a warrant if consent is withheld. However, it is o.k. for PO truthfully to advise a person that they will apply for a warrant if consent is refused. Permission to search does not give PO authority to do so if another person, with common authority over property, is physically present and expressly refuses consent. VIII. The Reasonableness Clause A. The Terry Doctrine 4th Am allows a reasonable search for weapons for protection of PO and others where he has reason to believe that he is dealing with an armed and dangerous person, regardless of whether he has PC to arrest individual for a crime. No PC or warrant needed 2 part test: 1- the nature and extent of the government interests involved (balancing the need to search (or seize) against the invasion which the search (or seizure) entails; 2- what specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion Must be judged an objective standardwould the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate B. Terry Seizures vs. De Facto Arrests must distinguish if the stop constitutes a stop under Terry or a de facto arrest. PC not required for Terry seizure but must have PC for de facto arrest

A person has been seized within the meaning of the 4th Am only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. 1. Dunaway v. New York If the subject is brought to the station house and detained for questioning, reasonable suspicion will not suffice, you must have PC C. Seizure vs. Non-Seizure 1. Mendenhall test a person is seized within the meaning of the 4th Am only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he/she was not free to leave. 2. Analysis: - Was the suspect seized? If so, at what point? (must use objective person test in determining seizure) - Was the seizure a Terry level seizure or a de facto arrest (how intrusive, durationSharpe test) - Was PO justified in seizing person in manner that they did? (Terry? Was there RS? De facto? Was there PC?) United States v. Sharpe legitimacy of seizure based on presence of 3 critical facts: 1- Did PO pursue his investigation in a diligent and reasonable manner? 2- What method of investigation was likely to confirm or dispel POs suspicions quickly? 3- An investigative detention must be temporary and last no longer than is necessary to effectuate purpose of stop. D. Reasonable Suspicion Must look at the totality of the circumstances and ask, based upon the whole picture, do the detaining officers have a particularized and objective basis for suspecting the particular person stopped for criminal activity? Considerably less than proof by a preponderance of the evidence, but considerably more than an inchoate and unparticularized suspicion or hunch. Alabama v. White Gates totality of the circumstances test applied When an informant is shown to be right about some things that increases the probability that she is right about the other facts asserted. But, absent some indication of credibility, an anonymous tip will not support a Terry stop. Must also look at informants prediction of future actions of 3rd parties not easily predicted. An individuals presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

E. Buie Searches As incident to arrest, POs may, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, the PO must have reasonable suspicion to sweep the rest of the area and must have reasonable suspicion to believe that the area to be swept harbors an individual posing danger to those on the arrest scene. Balancing test: government interest (PO safety after valid home arrest; assuring against a launched attack) vs. arrested suspects privacy interest in his home F. Reasonableness in a Special Needs Context No requirement of individualized suspicion of crime only a reasonableness balancing standard (Camara) when special needs beyond the normal need for law enforcement make the warrant and/or probable cause requirement(s) impracticable. 1. Administrative Searches - Camara test (how you justify the intrusion): 1- Are there specific and articulable facts, which taken together with rationale inferences, reasonably warrant intrusion; 2- Would the facts available to the PO at the moment of seizure or search warrant a person of reasonable caution in the belief that action taken was appropriate? (this is the objective standard to justify the intrusion) - Camara & See line of cases held that except in the event of emergency or consent, the right of entry to conduct an administrative inspection requires a warrant, albeit one based on administrative search probable cause - Post-See/New York v. Burger a closely regulated business may be inspected without a warrant if 3 conditions are met: 1- the regulatory scheme must advance a substantial interest, such as to protect the health and safety of workers; 2- warrantless inspections must be necessary to further the regulatory scheme (would going through the process to secure a warrant allow the subjects to conceal their violations?); 3- the ordinance or statute that permits the warrantless inspection must, by its terms, provide an adequate substitute for the warrant, i.e., rules that limit the discretion of the inspectors, regarding the time, place, and scope of the search. - Balancing test: 1- Governmental Purpose (Importance of the Administrative Objective to the Public Interest); 2- Privacy Concerns (1scope & degree of intrusion; 2- degree of discretion allowed to official; 3degree of expectation of privacyregulated vs. non-regulated business)

IX.

2. Border Searches people may be seized at the international border or its functional equivalent (ex.- airport terminal where an international flight arrives), and they and their belongings may be searched, w/o a warrant & in the absence of individualized suspicion of wrongdoing, pursuant to the longstanding right of the sovereign to protect itself from the entry of persons or objects dangerous to the nation. [These warrantless, suspicionless searches & seizures are reasonable simply because they occur at the border.] (Ramsey) - Roving patrols agents need RS of criminal activity to detain the car occupants briefly (Brigoni-Ponce) - Fixed checkpoints vehicle occupants may be stopped for questioning without individualized suspicion of wrongdoing (Martinez-Fuerte) - Fixed checkpoints distinguished from roving patrols on 2 grounds: 1- the subjective intrusion on the security of lawful travelerstheir fear and surprise levelis appreciably less in the case of a fixed checkpoint stop. (motorist can see that other vehicles are being stopped and is less likely to be frightened by the intrusion); 2- fixed checkpoints involve less discretionary enforcement activity than roving patrols 3. License and Vehicle Registration Inspections - Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law, stopping an automobile and detaining the driver in order to check his drivers license and the registration of the automobile are unreasonable under the 4th Am. (Prouse) 4. Sobriety & Drug Checkpoints - Reasonableness balancing test from Brown applied: 1- states interest (in curbing drunken driving); 2- effectiveness; and 3- level of intrusion on an individuals privacy (objective, i.e., length of time and subjective, i.e., fear and/or surprise by the motorist) - Edmond traffic checkpoint programs designed to interdict illegal narcotics violates the 4th Am because its primary purpose is to detect evidence of criminal wrongdoing and is motivated by a general interest in crime control. These types of checkpoints violate the 4th Am because their primary purpose is to search for evidence of a crime. 5. Public Schools - T.L.O. students privacy interest balanced against the need to maintain discipline in a reasonableness analysis - Safford a significantly intrusive search of a student requires greater justification Standing

A. Rakas v. Illinois RULE: whether the person who claims the protection of the 4th Am has a legitimate expectation of privacy in the invaded place (Katzian analysis) 1. Factors to look at to determine standing issue: a. Is the defendant on premises solely for commercial purposes? b. How long was the defendant on premises? c. Any previous connection between defendant and property owner? When a defendant lacks a possessory interest in or a close connection to the place searched, defendant will not be permitted to pursue their claims of unconstitutional search and seizure (Minnesota v. Carter) B. When the Exclusionary Rule Does Not Apply 1. Faulty Search Warrants Obtained in Good Faith United States v. Leon In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. C. Scope of the Exclusionary Rule 1. Fruit of the poisonous tree doctrine - ANALYSIS: 1- identify the tree (the constitutional violation); 2- identify the fruit (the evidence the gov seeks to introduce); 3- determine whether the fruit comes from the tree identified (is there a causal link?); and 4- if the fruit did come from a poisonous tree, identify any facts that may justify the conclusion that the poison from the fruit has dissipated (the attenuation doctrine) - Independent source evidence that is not causally linked to governmental illegality is admissible; even if the D was the victim of a 4th Am violation, perhaps the particular piece of evidence that she seeks to suppress was obtained lawfully (i.e., there is a poisonous tree, but this fruit comes from a different unpoisoned tree.); applies if the challenged evidence is discovered for the first time during lawful police activity; also applies if evidence is initially discovered unlawfully, but is subsequently obtained in a manner independent of the original discovery. - Murray v. United States independent source rule applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initially illegality; government must prove that they would have obtained the SW w/o confirmation from the initial illegal search - Inevitable discovery evidence in question is causally tied to earlier illegality, but assertion is that PO would have discovered evidence

lawfully despite the unconstitutional conduct; Nix case if prosecution can establish that the info ultimately would have been discovered by lawful means then the evidence will be admitted (prosecution must establish by a preponderance of evidence that info would have been inevitably discovered) 2. Attenuation (Dissipation of Taint) Doctrine, i.e. The Wong-Sun Rule - FACTORS: 1- length of time that has elapsed between the initial illegality and the seizure of the fruit in question; 2- the flagrancy of the initial misconduct (i.e., how much bad faith was involved in the police misconduct?); 3- the existence or absence of intervening causes of the seizure of the fruit; and 4- the presence or absence of an act of free will by the D resulting in the seizure of the fruit - When the secondary evidence was discovered by exploitation of the initial illegality, it must be suppressed; when, however, it is obtained by means sufficiently removed from the initial illegality, it is admissible. X. CONFESSIONS: THE VOLUNTARINESS REQUIREMENT (The 5th Am) A. Torture and Confessions RULE: A statement obtained from a suspect as a result of police coercion is inadmissible in a state or federal hearing under the due process clause and the 5th Am right against compulsory self-incrimination RATIONALE: 1- A coerced confession is untrustworthy; 2- even if there is independent evidence corroborating a coerced confession, the statement should be excluded b/c the police should adhere to the laws they enforce; 3coerced confessions are so offensive to a civilized system of justice that they must be condemned; 4- our system is accusatorial and not inquisitorial; 5- a person should not be convicted on the basis of a confession unless it is purely voluntary; 6- deters police misconduct and prevents the wrongs in 1-5. - Spano v. New York totality of the circumstances: 1- character of the accused (age, mental condition, level of education) and 2- objective factors (i.e., duration of the interrogation, conditions- threat of violence, deprivation of sleep, deceptive techniques, etc.) B. Self-Incrimination Clause 1. Chavez v. Martinez no Miranda violation unless the government seeks to introduce the statement at a criminal trial 2. Bram v. United States a confession, in order to be admissible, must be free and voluntary, i.e., it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, not by the exertion of any improper influence. Confessions cannot be

received as evidence where the prisoner has been influenced by any threat or promise. 3. Miranda v. Arizona any statement, whether exculpatory or inculpatory, obtained as the result of custodial interrogation may not be used against the suspects in a criminal trial unless the prosecutor proves that the police provided procedural safe-guards effective to secure the suspects privilege against compulsory self-incrimination. - These warnings must be given in clear and unequivocal terms: Right to remain silent; implications of not remaining silent; right to have an attorney present during questioning; ability to have one appointed at state expense if he cannot afford to retain one - Miranda is triggered by custodial interrogation questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way (i.e., is the person in custody and are they being interrogated?) - REMEMBER: Miranda had NO fruits evidence will NOT be excluded a. Miranda exceptions New York v. Quarles (public safety exception) benefits to suspect vs. public safety; test: objectively reasonable need to protect PO or public from immediate danger Oregon v. Elstad Where the police elicit an involuntary statement, then all fruits, indirect as well as direct, must be suppressed; suppression is of the immediate product of the Miranda violation and not its indirect fruits.[ In the case Elstads unwarned first statement was excluded from evidence, his second statement (even if derived from the first) was admissible.] Dickerson vs. United States held that Miranda was indeed a constitutional rule and not simply court-made (prophylactic) Missouri v. Seibert there must be a sufficient break in between the Miranda violation and the incriminating statement. [Here, the police deliberately failed to provide Miranda warnings as part of a 2-stage interrogation strategy designed to elicit an incriminating statement and then provide him with the warnings before they obtain a second statement repeating the confession. Unlike Elstad, the court suppressed the second statement in this case.] United States v. Patane Physical evidence obtained as a result of un-Mirandized but voluntary testimony is admissible; as long as the physical evidence obtained from the un-Mirandized statements

XI.

were not forced by the police, the evidence is constitutionally admissible; physical fruits obtained are not excluded Fellers v. United States (Elstad rationale in context of a 6th Am violation) While a statement obtained in violation of Miranda is not admissible in the prosecutions case, evidence (testimonial as well as tangible) derived from it is admissible, provided that the statement is found to have been voluntary and uncoerced and provided the warnings are found not to have been deliberately withheld. 4. Waiver of Miranda Rights - Whether express or implied, a waiver must be show to have been knowing, voluntary and intelligent knowing and intelligent are treated together by the courts and focus on whether the waiver was made with an awareness of the rights to be abandoned and the consequences of doing so; voluntariness requires a determination of whether the waiver was the product of a free and deliberate choice rather than intimidation, coercion or deception. - With regard to knowing and intelligent, it must be shown that: 1- the suspect understood that he had the right not to talk to the police or to talk only with counsel present; and 2- that he appreciated the consequences of foregoing these rights and speaking to the police. - Edwards v. Arizona interrogation must cease once a person has asserted their right to counsel. PO cannot interrogate again until either 1- counsel is present OR 2- the suspect initiates communication. [suspect must unambiguously assert their right to counsel] - If suspect asserts a right to remain silent the PO has to cease interrogation and show that they scrupulously respected the right before re-interrogating [must look at the TOC how long did they cease interrogating? Was the suspect re-Mirandized? Are they talking about the same crime or a different one? Is it the same officer doing the interrogation; if not, is this officer aware of the person asserting their right to silence?] - North Carolina v. Butler A waiver may be found even in the absence of an explicit statement if the suspects words and actions implicitly constitute a decision to forgo his rights. While mere silence in the face of warnings is not sufficient, the defendants silence, coupled with an understanding of his rights and a course of conduct indicating a waiver may suffice. [Again, look at the TOC.] POLICE INTERROGATION: THE SELF-INCRIMINATION CLAUSE (6th Amendment) A. Massiah Doctrine (Massiah v. United)

RULE: A right to counsel (RTC) is violated when gov deliberately elicits incriminating statements from accused in absence of counsel (or waiver) after initiation of judicial proceedings 1. Deliberate elicitation a. Henry statements will be suppressed when a person is specifically placed to have stimulated conversations with a D designed to produce incriminating admissions b. Kuhlmann cellmate passively listened; he agreed to listen to conversations by a number of inmates, not just one so no deliberate elicitation (D has to prove that gov took more action beyond being just a listening post) 2. Deliberate elicitation v. Interrogation - Terms are not synonymous - Deliberate elicitation focus is on the intent of PO (test: was there deliberate or reckless conduct once RTC has attached?) - Interrogation based on objective finding that process will likely result in incriminating information - Must look to what was the officers intention in getting the statement B. Massiah Waiver Brewer v. Williams RULE: Waivers must be voluntary, knowing and intelligent relinquishment of 6th Amendment right to counsel - Must determine whether or not there is/was an interrogation - Covert interrogations waivers do not come in to play (one cannot waive a right to be free from police initiated interrogation that one does not know is occurring) - Overt interrogations (prior law) PO cannot initiate questioning if suspect invokes 6th Am RTC; (current law) POs are not barred from approaching an accused to seek a waiver of 6th Am RTC even if they have already requested counsel - Must analyze if one is invoking RTC via Miranda (custodial interrogation) or via 6th Am (adversary judicial proceedings have commenced); under Miranda PO cannot re-approach until counsel is present or suspect waives . . . under 6th Am there is no bar to PO re-approaching and seeking a waiver - Fruit of 6th Am inevitable discovery; no fruits under Miranda - Valid waiver of Miranda RTC serves as a valid waiver of 6th Am RTC