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CRIMINAL PROCEDURE: INVESTIGATION

Ch. 1 - Failure and Legitimacy
A. Failure - Powell v. Alabama, 1932 - Holding - 14th Amendment Due Process was violated when Ds werent assigned counsel in time for preparation of case - Facts - Black men accused of assault and rape were tried in one day and only had counsel at the last minute, not appointed by judge - Reasoning - Ignorance, illiteracy, and youth of defendants, distance from families all contributed to the necessity of reasonable time and opportunity for Ds to secure counsel - This not being given was violation of 14th Amend. Due Process - In a capital case, where D is unable to employ counsel and is incapable of defending himself, its the duty of the court to assign counsel - Cant just assign at last minute, either. Must be able to give effective aid in preparation of case C. Seeking Legitimacy in the 14th Amendment - 14th Amendment limits state law in three ways: - No state shall: - Make of enforce any law which shall abridge the privileges or immunities of citizens of the US - Deprive any person of life, liberty, or property w/o due process of law - Deny any person within its jurisdiction the equal protection of its laws - Does Federal 14th Amendment absorb (incorporate) Bill of Rights? - If none of the provisions of the BOR applies to the states, a citizen can be subjected to warrantless entries into the home, coercive interrogation etc. - If due process incorporates the whole BOR, it becomes national code of criminal procedure - Justice Black wanted total incorporation where all rights applied to states - Selective incorporation has occurred over time - Duncan v. Louisiana, (1968), SCOTUS, Justice White - Reasoning - Trial by jury is fundamental to American scheme of justice. So 14th Amendment does incorporate the 6 th, and is required in state court in criminal cases

Ch. 2 Fourth Amendment: An Overview

A. The Text and its Mysteries - Right of people to be secure in their persons, houses, papers and effects, against unreasonable search/seizure; warrants cant be issued w/o probable cause and must describe place to searched and people or things to be seized (warrant clause) B. The Reach of the 4th Amendment - Who is covered by the protections of the amendment? - 4th Amendment only limits government action, not private parties - State and local police are limited, if at all, by 14th amendment due process C. Birth of the Exclusionary Rule - Weeks v. United States, (1914) SCOTUS (U.S. Marshall case) - If private docs can be seized and used in evidence against a citizen, protection of 4th Amen. Is of no value - Efforts of courts to bring guilty to punishment arent to be aided by sacrifice of principles established by years of endeavor resulting in their being fundamental laws of the land - Mapp v. Ohio, (1961), SCOTUS - Holding - evidence obtained by unconstitutional search/seizure is inadmissible in state court - Facts - Police went to search Mapps home but were denied entry. More officers showed up later and they busted down a door. Wouldnt let attorney come inside and eventually handcuffed her. They had no warrant. - Reasoning - SCOTUS points out that since Wolf, many states have adopted the exclusionary rule bc the other solutions referenced in Wolf havent worked - Purpose of exclusionary rule is to deter to compel respect for constitutional guaranty in the only effective way by removing incentive to disregard it

Ch. 3 Passing the Threshold of the 4th Amendment

1. SEARCHES A. What is a Search? A search occurs when both Katz prongs are met. Governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy - General Principles - Katz v. US, (1967), SCOTUS - Holding 4th amendment is triggered when government uses surveillance equipment to record conversations from a phone booth. To determine if there was a search, use 2 prong test: Actual expectation of privacy,

expectation must be one that society is prepared to recognize as reasonable. - Reasoning - The 4th Amendment protects people, not places. The issue isnt where the conversation took place, but what the government was secretly obtaining - Now, 4th Amendment not only governs seizure of tangible items, but extends to recording of oral statements, overheard w/o any technical trespass - Gov. violated Katz privacy and its recording was a search and seizure. FBI could easily have gotten a warrant but they didnt use judicial process, so its a violation B. The Katz Doctrine in Application - United States v. White, (1971), SCOTUS - Issue Are conversations recorded by informant inadmissible because they were simultaneously transmitted to other agents not parties to conversation? - Holding No, admissible. Transmitting the recording and therefore creating more accurate evidence doesnt harm Ds 4th amendment right. Court not prepared to hold that a D who has no constitutional right to exclude an informers unaided testimony nevertheless has a 4th A. privilege against a more accurate version of the events in question - Reasoning - Katz was different than this case because here an informant who was party to conversation with White told Government information, and no one has a reasonable expectation that a party hes talking to wont tell information to police. Criminal discusses his activity at his own risk. - Additionally, court reluctant to erect constitutional barriers to relevant accurate evidence - Better than police officers memory, could prevent threats or injury to suppress testimony, more accurate examinations - Smith v. Maryland, (1979), SCOTUS - Holding Use of a pen register not a search within the 4th Amendment. Expectation of privacy not reasonable. Dialed phone numbers are recorded by phone companies this is general knowledge - Reasoning - Smith cant claim his property was invaded or that police intruded into constitutionally protected area bc the register was installed at phone company - Smiths argument that his expectation came from the location of his phone calls

(his house) isnt valid bc site of call is immaterial bc number wouldve been recorded wherever he called from C. Open Fields, Curtilages, and Beyond. When is the 4th Amendment Implicated? - Open Fields Doctrine entry of an open field doesnt trigger 4 th Amendment; open fields include any unoccupied or undeveloped area outside of the curtilage (land immediately surrounding and associated with the home to which extends the intimate activity associated with the sanctity of a mans home and the privacies of his life) of a home. - Person cant demand privacy for activities conducted outside in fields, except in area immediately surrounding the home; fields dont provide the setting for intimate activities amendment was intended to shelter - Trespassing signs and fences dont effectively bar public from viewing fields, and people could lawfully survey them from the air - If person can reasonably expect that area immediately adjacent to home will be private, then its protected - Extent of Curtilage determined by: Proximity of area to home, whether area is inside fence or around home, nature and uses to which area is put, steps taken to protect area from observation - Surveillance of Curtilage doesnt require warrant, California v. Ciraolo (1986) - What a person knowingly exposes to the public, even in his own home or office, isnt subject of 4th Amendment protection; observation of marijuana fields took place from public air space - It wasnt reasonable for landowner to think he had privacy from every vantage point - Dissenters argued that it didnt make sense that police wouldve needed a warrant to climb over fence, but could use modern technology to avoid a warrant and observe property - Surveillance outside the cartilage, near a house, but not in an open field - Person doesnt have reasonable expectation of privacy in garbage bags outside - Animals, scavengers, anyone can come by and go through it, and it was left there so that someone else could access it and pick it up - Kyllo v. United States, SCOTUS, (2001) - Holding use of thermal imaging device from street, directed into house to detect heat constitutes a search - Reasoning - Here, there is more than naked-eye surveillance. When government obtains by sense-enhancing technology any info regarding the interior of the home that couldnt otherwise have been obtained without physical intrusion into a

constitutionally protected area, its a search - Technology must be in general publics use to avoid 4 th amendment protection 2. SEIZURES A. What is a Seizure? Property is seized once government substantially interferes with ones possessory interest(dominion and control) - United States v. Karo, SCOTUS (1984) - Holding electronic beeper monitoring of the transporting of personal property doesnt substantially interfere w/possessory interest or invade privacy rights. Not search or seizure. - Reasoning - at most there was technical trespass on the space occupied by the beeper, but mere presence in a space isnt a violation of 4th Amendment

Ch. 4 Substance of the 4th Amendment

1. PROBABLE CAUSE A. Introduction - Probable cause is traditional standard of reasonableness for 4 th amendment - Probable Cause exists where facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient to warrant a man of reasonable caution to believe an offense has been or is being committed - PC to search is the same except evidence subject to seizure will be found in the place to be searched is placed where italics are above - Police must set out for magistrate under oath the information in their possession that they think justifies issuing of warrant - Illinois v. Gates, SCOTUS (1983) - Holding overruled Aguilar Spinelli test for determining if tip established PC, and replaced with TOTC. Two prongs (reliability of informant and informants basis of knowledge) are relevant but not requirements - Reasoning - Totality of Circumstances is now the test to determine PC practical, common sense determination whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place - Rigid legal rules are ill-suited to an area of such diversity as informants tips - In the hurried context in which warrants issue, a rigorous inquiry by laymen into formal legal prongs isnt logical

B. Arrest Warrants - Payton v. New York, (1980), SCOTUS - Holding NY statute authorizing police to enter private residence w/o warrant to make routine felony arrest is unconstitutional? - Facts - Police had evidence establishing PC that Payton had murdered a man and they went to his apartment to arrest him. They broke open the door and found a bullet inside that they used at trial against Payton. - Reasoning - Language of 4th amendment applies equally to seizures of people and property - Basic principle of Amendment is that searches/seizures inside a home w/o warrant are presumptively unreasonable. Weapons/contraband found in public can be seized w/o warrant bc theres no invasion of privacy - Constitutional protection given to interest in privacy of own home is equally applicable to a warrantless entry for the purpose of arresting a resident bc such an entry requires a search for the suspect - Both intrusions share fundamental characteristic of breaching entrance to a home - NY also says same reasoning for public arrests being ok w/o warrant applies here. - Common law rule that warrantless arrest in public is valid if officer has PC to believe suspect is a felon - An arrest warrant founded on PC carries authority to enter a home where suspect lives when theres reason to believe the suspect is inside. C. Search Warrants - Introduction - Competing views Question is it reasonable or practicable to obtain a search warrant? (warrant requirement rule) Vs. Question is was the search reasonable? (reasonableness rule) - Fourth Amendment First Principles - Strict, Per Se approach insists search/seize always require warrant - Loose, Modified Per Se approach exceptions to strict warrant rule - Criticisms include this being a rewrite of the amendment -Elements of a Valid Search Warrant - Lo-Ji Sales v. New York, (1979), SCOTUS - Holding both search and seizure were invalid here. Warrant didnt describe what was to be seized specifically and justice wasnt neutral and detached from process

- Reasoning - This search warrant is reminiscent of general warrant or writ of assistance that 4th amendment was intended to protect against. Except for the 2 films, no other items seized were particularly described. This is against 4th Amendment - Search began when party entered premises, but at that time there wasnt sufficient PC to pursue a search beyond looking for extra copies of 2 specified films - Execution of a Search Warrant - Knock and announce principle required except in circumstances where it would be unreasonable (physical threat, hot pursuit, evidence could be destroyed etc) - Richards v. Wisconsin (1997) SCOTUS - Holding 4th amendment doesnt allow blanket exceptions to knock and announce rule for entire category of criminal activity, but in this case, exception was reasonable - Reasoning - This court says making blanket exceptions to knock and announce rule based on culture surrounding criminal behavior has 2 problems - Overgeneralization. In some cases, there may be no threat of harm or of drugs being destroyed and in those cases, government interest doesnt outweigh persons right to privacy - Allowing exceptions here can lead to others in other categories. Rule would be meaningless if exception allowed in any category of crime where hypothetical harm exists - Reasonableness of officers decision evaluated at time they enter room. Here Richards recognized them as police and drugs were of disposable nature D. Warrant Clause: When are Warrants Required? - Exigent Circumstances - Warden v. Hayden, (1967), SCOTUS - Holding warrantless search was valid due to exigent circumstances. Lives of police or others were in danger with armed man inside house. - Reasoning - Neither the entry to the home nor the search without warrant were invalid. The exigencies of the situation made the course of action imperative. The 4 th amendment doesnt require police to half

investigation if doing so would endanger them or others. Speed and thoroughness were essential to make sure there was no one else in house and that weapons were found -Searches Incident to Arrest - General Principles - Chimel v. California, (1969) - Issue is warrantless search of Ps house constitutionally justified as incident to that arrest? - Holding - Scope of search in this case was beyond person and area from which he might have obtained weapon or evidence. No justification absent a search warrant for extending search beyond that area - Reasoning - There is justification for searching person and area in his immediate control to prevent evidence destruction, weapon use - No justification for search any other room or desk drawers or closed areas of room. Must have warrant. Otherwise, the search is like a general warrant. Police could rummage through anything looking for evidence as long as P arrested at home - Scope of search in this case was beyond person and area from which he might have obtained weapon or evidence. No justification absent a search warrant for extending search beyond that area - United States v. Robinson, (1973) - Holding officer did have authority to make search of Ps pocket after arresting him, even though the arrest was only for a minor crime. Reasonable to search w/o warrant when incident to arrest. - Reasoning - Search of person incident to arrest has never been challenged - A search for weapons in absence of PC to arrest must like any other search be confined by exigencies justifying its initiation. Limited to discovery of weapons that could harm officer or others nearby - A search incident to arrest is different. Arrest first stage of criminal prosecution. - Stop and Frisk search allowed w/o PC has limitations under Terry. These limitations dont carry over to PC arrest

- Need to disarm suspect to take him into custody AND need to preserve evidence for later use. Absence of probable fruits or evidence doesnt make Terry limitations come into play. Also, reason for treating all custodial arrests alike is that extended exposure following arrest raises danger - Dont need to go case by case. Custodial arrest of suspect based on PC is reasonable intrusion and requires no additional justification. - Arrests of Automobile Occupants - New York v. Belton, (1981) limited by Arizona v. Gant - Arizona v. Gant, (2009) - Issue Can police really search a vehicle anytime an occupant is arrested? - Holding No. Police can search a car incident to arrest of occupant only if arrestee is within reaching distance of the passenger compartment at the time of the search OR it is reasonable to believe the car contains evidence of the offense of the arrest - Reasoning - Area within arrestees immediate control is that where he might gain possession of a weapon or destructible evidence - Chimel held that search incident to arrest could only include arrestees person and area within his immediate control (area where he could get weapon or destructible evidence) - Justifications of evidence preservation and safety dont apply outside of that area - SCOTUS rejects broad reading of Belton that would allow search of car after arrest of passenger. It wasnt intended that way and would be incompatible with Chimel - Police authorized to search a vehicle incident to recent occupants arrest only when arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. - Also, authorized to search when its reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle - Why Belton cant be read broadly - Police dont have authority to search every bag/purse in a car. Concern of giving officers unbridled discretion to rummage among persons effects. Also issues of safety and evidence not relevant

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- Pretextual Stops and Arrests - Whren v. United States, (1996) - Issue Does subjective intent of officer matter when making a traffic stop? Can it invalidate a search? No. - Reasoning - Court has never held outside the context of inventory search or administrative inspection that a cops motive invalidates objectively justifiable behavior under the 4th A. - Court has said that traffic violation arrest wouldnt be rendered invalid by fact that it was mere pretext for narcotics search. Actual motivation of officers not relevant -. Cops had PC here to believe Ps violated traffic law. That rendered the stop reasonable, and the evidence discovered admissible E. Cars and Containers - Chambers v. Maroney, (1970) automobile exception - Facts - All occupants were arrested and the car was taken to the station where it was searched. Guns, glove from robbery, and cards with gas station employee robbed previously were found in car - Reasoning - Contemporaneousness not required. If driver is arrested, car may be searched at station if PC exists - Caroll holds a search warrant unnecessary where theres PC to search a car topped on the road: the car is movable, the occupants are alerted, and the cars contents may never be found again if a warrant must be obtained - No difference between seizing and holding a car while warrant is obtained and going ahead and searching w/o warrant. As long as there is PC to search, its reasonable - California v. Carney, (1985) - Issue did police violate 4 th A. when they conducted warrantless search based on PC of a motor home located in a public place? - Holding No. Lesser expectation of privacy and mobility of car make warrantless search reasonable - Reasoning - Carroll recognized automobile exception to 4th amendment warrant requirement. Privacy interests in car are protected, but the ready mobility of the car justifies a lesser degree of protection of those interests. Court now also points out another justification lesser expectation of privacy of car than home

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- Licensing, inspection. Public aware it has less privacy bc of compelling need for gov. regulation - Though RV had some attributes of a home, it also clearly falls within scope of exception in Carroll. It was readily mobile and could have been moved beyond reach of police if warrant was obtained. Rv was licensed to operate on public streets, was serviced in public places, and was subject to regulation/inspection. It was also situated in a way that made it obvious it wasnt being used as a residence - US v. Chadwick, (1977) - Issue was warrantless search of trunk constitutional being that Ps were in custody and trunk was under exclusive control of police? - Holding- No. No exigency existed, under exclusive control of police, and luggage carries stronger privacy expectation than does vehicle - Facts - Ps taken into custody and trunk was kept under government control. Agents opened luggage and trunk w/o getting consent or search warrant. A lot of pot was found. - Reasoning - Katz explained 4 th Amendment protects people, not places - Framers didnt intend to exclude all searches outside home from amendment. Past cases decided by court said 4th Amend. Safeguards individuals from unreasonable government invasions of legitimate privacy interests. - Here, there was expectation of privacy bc personal effects placed in double locked trunk. There was no exigency, so this warrantless search was unreasonable - Factors that diminish privacy aspects of car dont apply to trunk. Luggage contents not open to public view, subject to regular inspections on continuing basis, luggage intended to hold personal effects. Expectation of privacy in luggage greater than in car. - After seizing trunk, no danger it was going to be removed before search warrant obtained, so warrant shouldve been obtained - Potential dangers in custodial arrests make warrantless searches of items within immediate control area reasonable w/o PC. Warrantless searches of luggage or other property seized at time of arrest cant be justified as incident to arrest either if search is remote in time or place from arrest, or no exigency exists

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- Search conducted more than hour after agents gained exclusive control of locker and long after Ps in custody. Line drawn at time police have exclusive dominion of property - California v. Acevedo, (1991) - Issue 4th A doesnt require police to get warrant to open container in vehicle simply bc they lack PC to search ENTIRE car - Reasoning - Police may search container in car w/o warrant if their search is supported by PC - Here, police had PC to believe bag contained pot so they can search bag w/o warrant. They had no PC to believe contraband was in any other part of car, so search of entire car wouldve been unreasonable F. Plain View (and Touch) Doctrines - Horton v. California, (1990) - Issue Is warrantless seizure of evidence of crime in plain view prohibited by 4 th A. if the discovery of the evidence wasnt inadvertent? - Holding Not prohibited. Inadvertence not necessary condition - Reasoning - If item is in plain view neither its observation nor seizure would involve any invasion of privacy, but a seizure would invade possessory interest of owner. So exception for plain view must address concerns of seizure - Object that comes into view during search incident to arrest that is appropriately limited in scope under existing law may be seized w/o warrant; also able to come across evidence during hot pursuit of fleeing suspect - Plain view alone isnt enough to justify warrantless seizure: officer must have not violated 4th A when arriving at place where evidence was viewed; items incriminating character must be immediately apparent, officer must have right of access to object itself - Inadvertence not essential - Law enforcement best achieved by applying objective standards of conduct rather than determining subjective state of mind of officer - Not necessary to require inadvertence in order to avoid converting warrants to general warrants bc warrants must be particular and

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warrantless searches must be supported by exception - Arizona v. Hicks, (1987) - Reasoning - Recording serial numbers of stereo equipment wasnt a seizure in itself bc it didnt meaningfully interfere w/Ps possessory interest in either the numbers of the equipment. But moving the equipment to get the numbers was a search separate from search for shooter, victims and weapons that was objective of entry into apartment - Taking action unrelated to objectives of authorized intrusion, which showed concealed portions of apartment or contents was invasion of privacy unjustified by exigent circumstance that validated entry. Doesnt matter what was revealed. A search is a search - Was search (moving turntable) reasonable? No - Valid if plain view doctrine wouldve sustained seizure of equipment. If officer had PC to believe stereo was stolen, doctrine wouldve allowed. But he only had RS. PC is required. - Purpose of doctrine is to prevent inconvenience or risk of losing evidence of going to get warrant to seize objects viewed in course of lawful search - No reason why object should be seizable on lesser grounds in unrelated search and seizure that what would be required (PC) for warrant to seize object if it were known to be on premises - PC to believe equipment was stolen was required to move it E. Consent - Schneckloth v. Bustamonte, (1973) - Holding When subject of search isnt in custody and State attempts to justify a search on basis of his consent, 4th and 14th amendments require that it demonstrate consent was voluntarily given and not result of duress or coercion. Voluntariness determined by totality of circumstances - Reasoning - When prosecutor seeks to rely on consent to justify search, he has burden of proving it was freely and voluntarily given - Meaning of voluntariness - All case law has turned on using totality of circumstances approach instead of requiring D know he had right to refuse - Two competing concerns must be accommodated when determining voluntary

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consent: legitimate need for such searches and equally important requirement of assuring absence of coercion - Proving D knew he could refuse could create doubt whether consent searches could continue to be done bc its hard to prove knowledge - Requiring informing D of right has been criticized. Bc request to search happens quickly in the moment and its not like a formal trial setting - Vast difference btwn rights protecting fair criminal trial and rights under 4th amendment - Miranda is inapplicable - No evidence of coercion here and no reason to presume consent is coerced - Traditional definition of voluntariness will apply. It has always taken into account education, low intelligence, lack of effective warnings - Notes - Person can put limits on their consent to search. Can put time limit or scope limit (areas to be searched). Person can also withdraw consent after granting it. Unless pre-withdrawl search gives independent grounds to proceed, police must respect. - Georgia v. Randolph (2006) - Holding A physically present co-occupants stated refusal to permit entry prevails over other occupants consent, rendering warrantless search unreasonable and invalid as to him - Reasoning - Matlock recognized co-occupant consent rule - Authority to admit in Matlock comes from social custom and that makes it reasonable. Social custom wouldnt say consent would trump refusal of co-tenant that is there - Minnesota v. Olsen held overnight houseguests have legitimate expectation of privacy in their temporary quarters bc its unlikely that host will admit someone who wants to see or meet w/guest over that guests objection - Disputed permission is no match for central value of 4th A, and states countervailing claims dont outweigh it (consenting tenants interest in bringing criminal activity to light, cotenants self-interest in siding w/police to deflect suspicion). Cotenants could always bring evidence to police or tell them what he knows - So long as theres no evidence that police have removed the potential objector from the entrance for sake of avoiding a possible objection, theres practical value in simple clarity of complementary rules - Fine line, but thats where they draw it. If co-occupant isnt there, even if in a squad car or sleeping a block away, police dont need their consent

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.- Illinois v. Rodriguez, (1990) - Issue must police who have received consent to enter a home be correct in their belief that person has authority to consent? - Holding No. Polices belief that person consenting has authority to do so must be reasonably only. - Reasoning - Common authority rests of mutual use of property by people generally having joint access or control for most purposes. State has burden of showing, and didnt show in this case - Though Fischer lived with D for a while, she had moved out a month before event and lived with her mother. Only reason she had key was bc she took w/o Ds knowledge - State contends entry validated by offers reasonably believing she had authority to consent - But Fourth A doesnt assure that gov. wont search house unless D consents. It assures that no search will be unreasonable. And there are different things that can make search reasonable. - Reasonableness doesnt demand gov. be factually correct in its assessment that search will produce evidence or seizure of criminals. Warrants only demand PC. And sometimes, magistrates use seemingly reliable inaccurate information will give warrant for search of wrong home and owner suffers. - Reasonableness requires not that officers/magistrates always be correct in factual determinations, but that they be reasonable - Whether basis for consent-authority exists is sort of factual question to which law officials must be expected to apply judgment and 4th A only requires they answer it reasonably: Would facts warrant reasonable person belief that consenting party had authority? G. Reasonableness Clause: the Diminishing Roles of Warrants and Probable Cause - Terry v. Ohio, (1968) - Holding - it is a reasonable search when an officer performs a quick seizure and a limited search for weapons on a person that the officer reasonably believes could be armed. A typical beat officer would be unduly burdened by being prohibited from searching individuals that the officer suspects to be armed - Reasoning - Two sides of argument - Stopping and frisking are lesser invasions of privacy than full search

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and arrest. Cops should have power to frisk for weapons on suspicion that D is armed, and cops should be able to stop a person briefly for questioning upon suspicion theyre involved in criminal activity. Stop and Frisk may establish PC that is necessary for arrest and search incident - Exclusionary rule usually discourages lawless police conduct but has limitations - Powerless to deter invasions of rights where police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal - When does 4th Amendment apply to stop and frisks? - Whenever an officer accosts someone and restrains his freedom to walk away, he had seized that person. Careful exploration of outer surfaces of persons clothes in attempt to find weapons is a search. Doing these in public while citizen stands helpless is more than petty indignity - Was officers action justified at inception? Reasonably related in scope to circumstances which justified interference in first place? - Here were dealing with swift action made upon the on-the-spot observations of the officer on the beat cant practically be subject of warrant procedure; must instead be tested by 4th A. proscription against unreasonable search/seizure - First focus on government interest which allegedly justifies intrusion upon the constitutionally protected interests of the private citizen - Officer must be able to point to specific facts that, with rational inferences, reasonably warrant the intrusion. Detached, neutral scrutiny required by 4th amendment comes with objective reasonable standard - First interest is effective crime prevention and detection - Second is McFaddens immediate interest in taking steps to assure that Ds werent armed with weapon that could harm him or others - 1000s of deaths from guns/knives in these situations - When officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to officer or others, it would be unreasonable to deny cop the power to determine if person has the weapon - There must be narrowly drawn authority to permit reasonable search for weapons for protections of officer where he has

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reason to believe hes dealing with armed individual regardless of whether he has PC to arrest for a crime - D need not be armed. Would reasonable person be warranted in belief that safety of himself or others was in danger? - Here, a daylight robbery was reasonable to suspect, and that type of crime involves weapons - McFadden kept scope of search appropriate. Didnt put hands in their pockets or under clothes until he felt weapon, then he merely reached in and removed gun - Rule: Where cop observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons hes dealing with may be armed and presently dangerous, where in the course of investigating this behavior, he identifies himself as a cop and makes reasonable inquiries, and where nothing in initial stages of encounter serves to dispel his reasonable fear for his own or others safety, hes entitled to conduct limited search of outer clothing of such persons in attempt to discover weapons. Weapons found can be introduced as evidence - Dunaway v. New York, (1979) - Before Terry, 4th A guarantee against unreasonable seizures was analyzed in terms of arrest, PC for arrest, and warrants. PC was absolute necessity - After Terry, an exception for needing PC to seize a person was made. It made special category of 4th A seizures that was less intrusive than arrests and this category could use balancing test and only when making pat downs - Terry doesnt support, as state argues, custodial interrogation seizures be justified by RS - Here, detention was same as traditional arrest. Taken from home to station, put in interrogation room, never told he could leave - Drawing Lines: Seizure versus Non-Seizure Encounters - United States v. Mendenhall, (1980) - Holding - Conduct of agents didnt violate Ds 4th Amendment rights. D consented to search freely as determined by TOC - Reasoning - Person is seized within meaning of 4th A only if in view of all the circumstances surrounding incident, a reasonable person would have believed that he was not free to leave or terminate the encounter. In absence of some evidence, otherwise inoffensive contact between person and officer cant amount to seizure

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- No seizure here. Event occurred in public, no weapons shown, requested to see items - Voluntariness of her responses doesnt depend on having been told she was free to decline to cooperate - After going to DEA office, were her rights violated? - TOC determines if consent to go with agents was voluntary - She wasnt told she had to go, her ticket and ID were returned to her before being asked - Though race and age are factors, they dont tip scales for P - United States v. Drayton, (2002) - Holding No seizure, and consent freely given. Police encounters in constricted areas arent automatically seizures bc individual voluntarily placed self in a confined area - Reasoning - Even when cops have no basis for suspecting person, they can pose questions, ask for ID, and request consent to search luggage, as long as they dont induce by coercion - Being on a bus, doesnt allow for a per se rule against questioning - Cops didnt seize Ds when they boarded bus and began questioning. They gave passengers no reason to think they had to answer. Cops didnt show weapons or make intimidating movements and left aisle free for exit. Tone of voice was police and quiet. No reasonable person would have thought they were barred from leaving or ending questioning - Had this occurred on street, no question it would be constitutional. Being on bus doesnt make unconstitutional. In fact, having more people around may make person more comfortable to not cooperate - Having gun and badge is just part of being a cop. Absent brandishing gun, unlikely it contributes to coerciveness of encounter - Presence of agents at exits posed no reasonable threat of detention - Was search reasonable, meaning was consent voluntary? - In each case, cop asked permission to check person and bag. Cop doesnt have to inform citizens of their right to effuse when seeking permission to conduct

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warrantless consent search. TOC controls and informing of choice is just one factor. - California v. Hodari D, (1991) - Holding During police pursuit, there is no seizure until physical force is applied to suspects body or suspect surrenders to authority - Reasoning - Hodari was untouched by cop at time he threw the drugs but claims that the pursuit qualified as a show of authority calling upon him to halt - Assuming Cops pursuit here was a show of authority enjoining Hodari to halt, since Hodari did not comply, he wasnt seized until he was tackled. The cocaine abandoned while he was running was not the fruit of a seizure and motion to exclude was properly denied. - If Cop pulled a gun, thats physical force. - Reasonable Suspicion - Alabama v. White, (1990) - Holding Reasonable belief suspect has contraband or other evidence isnt enough for initial frisk, and unreliable or uncorroborated anonymous tip doesnt justify stop and frisk. But here, tip combined with officer confirmation of certain details of tip - Reasoning - Gates made clear that TOC test was used to determine if informants tip establishes PC. The informants veracity, reliability, and basis of knowledge are still relevant in TOC and also in RS context, but lesser showing required for RS. - Tip provides virtually nothing from which one might conclude the caller is either honest or info is reliable. Gives no indication of basis for callers predictions regarding Whites criminal activity. A tip like this one, standing alone wouldnt warrant man of reasonable caution in the belief that a stop was appropriate. - This tip wasnt as detailed or complete as in Gates, but degree of suspicion wasnt as high, either. - Quality and Quantity are both important factors in TOC of RS. Thus if tip has low degree of reliability, more info will be required to establish RS. - When officers stopped White, tip had been sufficiently corroborated to furnish RS that she was engaged in criminal activity and the investigative stop was constitutional - Time frame, address, car, car path corroborated - BC caller was right about those things, its more likely theyre

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right about other alleged facts like White being involved in criminal activity - Tip contained details about future actions of 3rd parties not easily predicted. Shows special familiarity with respondents affairs. More likely that person has access to reliable info about illegal activities of that person - Illinois v. Wardlow, (2000) - Issue was stop and frisk by police unconstitutional because it was based on suspects fleeing from a high drug area? - Holding Constitutional. TOC takes into account area, and other factors. Fleeing, holding bag, area rise to level of RS necessary to justify terry stop - Reasoning - Persons presence in high crime area isnt enough to support RS, but cops shouldnt ignore relevant characteristics of location when deciding if circumstances are suspicious enough to warrant further investigation. - Nervous, evasive behavior is to be figured into TOC test in determining RS. Fleeing is suggestive of wrongdoing. Officer justified in investigating further bc behavior was suggestive of criminal activity - Just bc there are innocent reasons for running away, it doesnt make this a violation of 4th A. Terry recognized officers could detain person to resolve ambiguity in behavior - We allow arrests based on PC and sometimes those arrested are innocent. The Terry stop is more minimal intrusion and allows officer to investigate further - Difference between provoked and unprovoked flight, the latter is here. - Extending the Terry Doctrine - Maryland v. Buie, (1990) - Holding protective sweep may be conducted only when justified by reasonable, articulable suspicion that house is harboring dangerous person - Reasoning - Until point of arrest, cops had authority based on arrest warrant to search anywhere in the house Buie may be. - What level of justification is needed before Detective could have legally entered basement to see if someone else was there? - Generally search of home w/o warrant is unreasonable, but some cases where public interest is such that neither warrant nor PC is required

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- Once Buie was found, search was over and there was no longer that particular justification for entering rooms not yet searched. But like in Terry there is an interest of officers in taking steps to assure house is not harboring other dangerous people. Rise of danger in at-home arrest greater than on-street - Cops interest in safety during and after arrest sufficient to outweigh intrusion - Warrant was not required and as incident to arrest, cops could look in closets and other spaces adjoining the place of arrest from which an attack could be launched. Beyond that, there must be articulable facts which, taken with rational inferences, would warrant reasonably prudent officer in believing area to be swept harbors dangers person - This protective sweep is not a full search of premises and can only extend to cursory inspection of places where person could be found - Notes: - US v. Place (1983): when officers observations lead him to reasonably believe that a traveler is carrying luggage that contains narcotics, principles of Terry would permit officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provide that the detention is properly limited in scope. But seizing luggage can become restraint on the person since itinerary is disrupted. So when police seize luggage from suspects custody, limitations applicable to investigative detentions of the person should define permissible scope of detention of luggage on less than PC - Pennsylvania v. Mimms: Police may order persons out of car during stop for traffic violation and may frisk those persons for weapons if there is reasonable belief that they are armed and dangerous. - Adams v. Williams: police may reach into passenger compartment of car to remove gun from a drivers waistband even where gun wasnt apparent to police from outside the car and cops knew of its existence only bc of a tip - Michigan v. Long: search of passenger compartment of car, limited to areas where weapon may be hidden, is permissible if cop has reasonable belief based on specific and articulable facts which, taken together with rational inferences, reasonably warrant officer in believing suspect is dangerous and may gain immediate control of those weapons. If contraband found during search, 4th A doesnt require its suppression

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Reasonableness in a Special Needs Context - Important to draw line between searches/seizures done for criminal law enforcement reasons and those done in furtherance of community caretaking functions. - Special Needs Exception? - Search/seizure comes in this category when perceived need, beyond normal need for criminal law enforcement, makes warrant and/or PC requirements impracticable or irrelevant - Content of suspicion must match degree of intrusion - Michigan Dept. of State Police v. Sitz, (1990) - HoldingHighway sobriety checkpoints do not violate 4th and 14th As ? - Reasoning - Balancing test: 3 prongs: state interest in preventing drunk driving, effectiveness of checkpoints, level of intrusion on privacy caused by checkpionts - Drunk driving is SERIOUS government problem, and intrusion on motorists is Slight - Subjective intrusion on motorists fear and surprise to be considered arent natural fear of someone drinking over prospect of being stopped, but rather fear and surprise engendered in law-abiding motorists by nature of the stop - Effectiveness of checkpoints: choice among reasonable alternatives remains with governmental officials who have unique understanding of, and responsibility for, limited public resources - Here, there is data that over 1% of drivers stopped were drunk - City of Indianapolis v. Edmond, (2000) - Holding Checkpoint specifically to detect drugs violates 4 th A. bc its general crime control - Reasoning - Search or seizure is normally unreasonable in absence of individualized suspicion of wrongdoing, but there have been special needs exceptions and others - Martinez-Fuerte balance tipped in favor of Gov. interest in policing nations borders. Cars can be stopped for questioning even w/o RS of immigration violation, but must have PC or consent for search. - Sitz gravity of drunk driving problem and state interest in getting drivers off road weighed heavily toward constitutionality - Prouse discretionary suspicionless stop for spot check of license and registration invalidated. A roadblock would be okay, though. Difference between highway safety interests and general interest in crime control - What distinguishes above checkpoints from these here is primary purpose

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- Court never has approved checkpoint with purpose of detecting ordinary criminal wrongdoing (just border policing and highway safety). - When determining if individualized suspicion is required, must consider nature of interests threatened and connection to particular law enforcement practices at issue. Gravity of threat alone isnt dispositive. - Because primary purpose of checkpoint program is indistinguishable from general interest in crime control, they violate 4 th Amendment

Ch. 5 Remedies for 4th Amendment Violations

1. STANDING A. The Starting Point - Standing suppression of product of 4th A violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved only by introduction of damaging evidence - Rakas v. Illinios, (1978) - Reasoning - Trial court rejected argument that bc they were targets of search, search was directed at finding evidence against them and they should have standing - Exclusionary rule shouldnt be extended in such a way that keeps relevant and reliable evidence from fact finder at trial - Better analysis focuses on extent of a particular Ds rights under the 4th A, rather than on any theoretically separate concept of standing. Question is whether search and seizure violated rights of criminal D who seeks to exclude evidence, and its answered by determining if they infringed interest of D that amendment was designed to protect - Jones said that anyone legitimately on premises where search occurs can challenge its legality. Ps argue occupancy of car was comparable to that in Jones and they have standing - Court disagrees. Jones merely stands for idea that person can have interest in place other than his house so that 4th A protects him from unreasonable gov. intrusion at that place. Cant apply so broadly as to this case. Jones had legitimate expectation of privacy in the apartment and could claim constitutional protection - Ps assert neither property nor possessory interest in the car, no interest in property seized. Fact they were legitimately in the car isnt determinative of whether they had legitimate expectation of privacy in areas searched in car - Minnesota v. Carter, (1998)

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- Reasoning - In order to claim protection of 4th A, D must show he personally has an expectation of privacy in place searched, and that his expectation is reasonable. - Visitor present with the home owners consent, purely for a commercial purpose, a short period of time, w/o previous connection with the house-holder or the premises has no 4th A privacy protection 2. EXCLUSIONARY RULE A. Should the Rule be Abolished - Does rule deter gov misconduct, and even if it does, do costs of rule outweigh benefits? - Understanding Criminal Procedure, Dressler - Does Exclusionary Rule Deter Constitutional Violations? - Most violations occur in good faith and cant be prevented bc they are inadvertent. All we can ask is reasonable, good faith efforts to obey constitution. Those who act in bad faith can be deterred, but exclusionary rule is too indirect a form of punishment to do it right. Bad conduct must always be detecting and punishment must occur immediately after every incident. Possibility of suppressing evidence is of marginal concern bc officer knows he has imposed other hardships on a suspect. 3. WHEN EXCLUSIONARY RULE DOES NOT APPLY A. In General - Doesnt apply to civil proceedings, federal or state - Doesnt apply to ALL criminal proceedings. Can use evidence at grand jury proceedings and pretrial preliminary hearings, sentencing, probation and parole revocation hearings B. Faulty Search Warrants Obtained in Good Faith - United States v. Leon (1984) - Holding ER doesnt apply when police act in good faith reliance on a defective search warrant. Marginal benefits produced by suppressing evidence obtained in reasonable reliance on warrant invalidated cant justify costs of exclusion. But reliance must be reasonable and in some cases there are no reasonable grounds for believing warrant was properly issued. - Reasoning - Must weigh cost and benefit of preventing use in case where trustworthy tangible evidence is obtained in reliance of defective search warrant. - Unbending application of sanction would impede truth-finding functions of courts and favor guilty defendants - Court has said that in doubtful or marginal case, search under warrant may be sustainable where w/o one it would fall. Great deference given to magistrates decision but magistrates finding of PC still subject to scrutiny of:

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- Whether it was based on knowing or reckless falsity of affidavit, - Only here has court previously set forth rationale for suppressing evidence found via warrant - Whether magistrate performed neutral and detached function - Whether affidavit relied on provides magistrate with substantial basis for determining existence of PC (will look to see if mag. Incorrectly applied TOC) - Exclusionary Rule designed to deter cop misconduct rather than punish errors of judges/magistrates. No evidence suggests they are inclined to ignore 4 th A . And no basis for believing exclusion of evidence seized pursuant to a warrant will have deterrent effect on issuing magistrate - No evidence that rule can have deterrent effect when offending cops acted in objectively reasonable belief that their conduct didnt violate 4th A. Even if it DID deter some misconduct, it shouldnt be applied to deter reasonable cop activity - Particularly true when officer acting in good faith got search warrant from magistrate and acted within its scope. Nothing really to deter here. Once warrant issues, nothing more cop can do to comply with law - Suppression remains appropriate where officers dont have reasonable grounds to believe warrant was properly issued: - Affidavit on warrant is based is so lacking in PC that no reasonable officer would rely on it - Magistrate has wholly abandoned his judicial role - Warrant is so deficient on its face that the officers executing it cant presume its valid - Officer who sought the warrant knows the info is false or recklessly disregards its truth or falsity 4. SCOPE OF THE EXCLUSIONARY RULE B. Independent Source and Inevitable Discovery Doctrines - Independent Source Doctrine Evidence can be brought in if obtained from a source independent of the original illegality - Murray v. United States, (1988) - Reasoning - Independent Source Doctrine - Gov. claims applies to evidence initially discovered during or as consequence of unlawful search but later obtained independently from activities untainted by initial illegality. - If knowledge of pot in warehouse was acquired at time of entry pursuant to warrant and if later acquisition wasnt result of earlier entry, theres no reason why independent source doctrine shouldnt apply. Exclusionary rule would not put

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cops in same position they wouldve been if had they not entered illegally, but a worse one - Ultimate question is whether search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue - To determine, one must ask whether warrant would have been sought even if what actually happened had not occurred C. Attenuation (or Dissipation of Taint) Doctrine - Attenuation Doctrine Evidence obtained through constitutional violation where connection has been so attenuated as to purge the taint. - Where D is in custody and making statements, consider: - Length of time elapsed between initial illegality and seizure of fruit in question - Flagrancy of initial misconduct (dissipation of bad-faith violations takes longer than with good-faith violations) - Existence or absence of intervening causes of the seizure of the fruit - Presence or absence of an act of free will by D resulting in seizure of fruit - Wong Sun v. United States, (1963) - Reasoning - Toys Case - Appeals court found no PC nor reasonable grounds for his arrest - Verbal evidence derived so immediately from unlawful entry and unauthorized arrest, as officers action in this case, is fruit of illegality and unwarranted intrusion. Policies underlying exclusionary rule dont invite distinction between physical and verbal evidence, and it would be dangerous to make that distinction. - Gov. claims even though entry was unlawful, statements made in bedroom were admissible bc they came from intervening independent act of free will. But this isnt true. 6 officers broke down his door and chased him to his room where his child and wife were sleeping. Unreasonable to infer his response was act of free will. - Does exclusion of Toys declarations also require exclusion of drugs taken from Yee, to which those declarations led police? - Question is whether evidence at issue has been come at by exploitation of that illegality, or instead by means sufficiently distinguishable to be purged of the primary taint? - Evidence came from exploitation of the illegality, so they cant be used against Toy - Wong Suns Case - His arrest was also unreasonable and without PC.

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- Suns confession not the fruit of that arrest and was properly admitted at trial. Wong had been released and had returned voluntarily several days later so his statement was attenuated as to dissipate the taint. 5. THE EXCLUSIONARY RULE: UNDERGOING CHANGE A. Hudson v. Michigan, (2006) - Holding Exclusionary Rule doesnt apply to knock and announce violations. Social costs of applying ER to the rule are considerable. Incentive to such violations is minimal to begin with and the current deterrence against them are substantial. Resort to massive remedy of suppressive evidence of guilt is unjustified - Reasoning - Due to substantial social costs of Exclusionary rule, suppression is a last resort and is granted where deterrence benefits outweigh social costs - Costs here are considerable. If ER applies to knock and announce there will be flood of litigation and courts will have hard time determining reasonable wait time, whether RS existed for exception to apply etc. Also, occupants could have time to become violent and destroy evidence - Deterrence Benefits are weak. - Constitutional violation being a but for cause of obtaining evidence is a necessary condition for suppression but not a SUFFICIENT one in itself. In this case, illegal manner of entry was NOT a but-for cause bc warrant would have executed and cops would have gone in anyway. Even if it was a but for cause, it can sometimes be too attenuated to justify exclusion - Attenuation can occur when causal connection is remote, or where violated constitutionally protected interest wouldnt be served by suppression - Since interest violated in this case have nothing to do with seizure of evidence, exclusionary rule is inapplicable - Victims of knock and announce violations can file civil suit as deterrent. Statute no gives attorneys fees for civil rights plaintiffs, so finding lawyer to bring suit wouldnt be hard. Also, cops are now more professional and take rights seriously B. Herring v. United States, (2009) - Holding When police mistakes are result of negligence like that here, rather than systemic error or reckless disregard of constitutional requirements, marginal deterrence doesnt justify ER - Reasoning - Exclusionary Rule is designed to safeguard 4th A. rights generally through its deterrent Effect - Must consider actions of all officers involved. Here they did nothing improper. Error was noticed quickly bc of requested faxed confirmation of the warrant. BC Dade county

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officers failure to update record was only negligent, error isnt enough alone to require extreme sanction of exclusion - ER applies only where it results in deterrence and benefits of that deterrence must outweigh costs - Arizona v. Evans good faith rule from Leon applied to cops reasonably relying on mistake info in court database that warrant is outstanding. Mistake by judicial employee cant give rise to ER for 3 reasons: - ER crafted to curb police misconduct, not judicial, court employees unlikely to try to subvert 4 th A, no basis to believe applying rule would have deterrence - Extent to which ER is justified by deterrence principles varies with culpability of police conduct - Krull Evidence suppressed only if police knew or may be properly charged with knowing that search was unconstitutional - Since Leon, court has never applied ER when police conduct was no more intentional or culpable as non-recurring, attenuated negligence - To trigger ER, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth societal cost. ER serves to deter deliberate, reckless, or grossly negligent conduct, or in some cases recurring negligence - Action in this case doesnt rise to that level - Good faith inquiry confined to objectively ascertainable question whether reasonably well trained officer would have known that search was illegal in light of all the circumstances (which include particular officers knowledge and experience) - If police were shown to be reckless in maintaining warrant system or to have knowingly made false entries to lay groundwork for arrests, ER would be justified

Ch. 6 Confessions: The Voluntariness Requirement

A. OVERVIEW - Involuntary Confession violates Due Process and cannot be used for any purpose - Coercion must come from government - Government coercion missing where suspects confession motivated by own psychotic state and response to inner voices - Voluntariness TOTC used: age, education, mental ability, intoxication, setting, duration - Confessions that violate DP requirement - 36 hr non-stop incommunicado interrogation was deemed inherently coercive

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- 8 hr, middle of the night interrogation by police/friend of suspect using manipulative emotional tactics was held involuntary. - Will was overborne by official pressure, fatigue, and sympathy falsely aroused B. POLICE INTERROGATION WITHOUT TORTURE - Lisenba v. California, (1941) - Holding Though cops illegally deprived P of counsel and long episodes of questioning were frequent, they didnt coerce the confession from P - Reasoning - Aim of the rule that confession inadmissible unless freely given is to exclude false evidence. But aim of requirement of due process is to prevent fundamental unfairness in the use of evidence whether true or false - Denial of due process is failure to observe fundamental fairness essential to concept of justice. Absence of that fairness must fatally infect the criminal trial. - This unfairness exists when a coerced confession is used as a means of getting guilty verdict - Though cops illegally deprived P of counsel and long episodes of questioning were frequent, they didnt coerce the confession from P. P said interrogation wouldnt have drawn admission if Hope hadnt made a statement and he admitted no threats, promises, or acts of physical violence were made during this questioning or for 11 days prior. Counsel had full chance to advise him. - Spano v. New York, (1959) - Reasoning - P was subject to 8 straight hours of interrogation, which began in the evening and went into morning. Slowly mounting fatigue plays its part. Ps request for attorney repeatedly denied - Ps will was overborne by official pressure,. Fatigue, and sympathy falsely aroused. - Its obvious intent of officers was to get confession. When such intent is shown, court has held that the confession obtained must be examined with most careful scrutiny and has reversed a conviction on facts less compelling than these

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Ch. 7 Police Interrogation: The Self-Incrimination Clause

B. MIRANDA SPAWNS A NEW LAW OF CONFESSIONS - Miranda v. Arizona, (1966) - Holding prosecution cant use statements, exculpatory or inculpatory, stemming from custodial interrogation of D unless it demonstrates use of procedural safeguards effective to secure the privilege against self-incrimination - Reasoning - No person shall be compelled in any criminal case to be a witness against himself and he shall have assistance of counsel - In none of the cases at issue did officers afford appropriate safeguards at the outset of interrogation to insure that the statements were truly the product of free choice. - Such an interrogation environment is created to subjugate person to will of examiner and isnt physical intimidation but is equally destructive of dignity - Privilege against self-incrimination is a substantive right and constitutional foundation underlying it is respect a government must accord to the dignity of its citizens - Courts decision isnt a straightjacket that will handicap efforts at reform. Court encourages Congress and the States to search for better ways of protecting individuals rights while promoting efficient law enforcement. But until other procedures are shown which are as effective in apprising accused persons of their right of silence and in assuring opportunity to exercise it, the following must occur: - Person in custody whos to be interrogated must be told he has the right to remain silent. It makes Ds aware of the right, alleviates inherent pressures of the atmosphere, and shows D that his privilege will be recognized should he choose to exercise it - Court will not speculate as to whether D was aware of rights without a warning being given. - Warning must be accompanied by explanation that anything said can and will be used against them in court, they have right to consult with lawyer and have lawyer during interrogation and if they cant afford one, one will be appointed - Once warnings are given, if person indicates they want to remain silent, interrogation must end bc its been shown he intends to exercise 5 th A privilege. Any statement taken after person invokes privilege is product of compulsion

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- If person says he wants attorney, interrogation must end until attorney is present and then individual must have opportunity to confer with him and have present during questioning. If person cant get attorney and indicates he wants one before speaking, they must respect decision to remain silent - If interrogation continues w/o presence of attorney and statement is taken, a heavy burden is on gov. to show D knowingly and intelligently waived his privilege against self-incrimination and his right to counsel - Record must how that accused was offered counsel but intelligently and understandingly rejected the offer - When person is taken into custody or otherwise deprived of his freedom by authorities in any significant way and is questioned, privilege against selfincrimination in jeopardized. Custodial interrogation setting is inherently coercive. Procedural safeguards must be in place. Persons can waive these rights only if done so intelligently and understandingly and after warnings have been given and opportunities afforded. - Notes - Warnings not required when suspect is unaware tat he is speaking to officer and gives voluntary statement. Essential ingredients of police-dominated atmosphere and compulsion not present. Coercion determined from perspective of the suspect C. STORMY SEAS FOR MIRANDA - New York v. Quarles, (1984) - Holding exception to Miranda exists when need for answers to questions in a situation posing threat to public safety outweighs need for rule protecting 5 th A protection - Reasoning - This court finds concern for public safety must be paramount to adherence to literal language of rules enunciated in Miranda - Absent officially coerced self-accusation, 5 th A privilege isnt violated by even the worst admission - Heres theres no claim Ds statements were compelled by cop conduct that overcame his will to resist - Miranda case is certainly applicable here: - D was in custody, surrounded by 5 officers and handcuffed when questioning occurred

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- But court finds there is a public safety exception to Miranda requirement that warning be given before suspects answers can be admitted as evidence. Doesnt depend on motivation of individual officers involved - Miranda doesnt require full application to situation where cops ask questions reasonably prompted by concern for the public safety. - Though this ruling lessens clarity of Miranda, exception lessens the necessity of that on-the-scene balancing process. Not difficult for cops to apply bc in each case it will be circumscribed by the exigency which justifies it. Exception allows cops to follow instincts when confronting situations posing danger to public - Oregon v. Elstad, (1985) - Holding Does initial failure to read rights to suspect taint subsequent admissions made after the suspect HAS been advised of and WAIVED his Miranda rights? nN. Subsequent reading of rights cures the violation and following statements allowed. - Reasoning - Failure to administer Miranda warnings creates presumption of compulsion so unwarned statements that are otherwise voluntary under meaning of 5 th A must still be excluded from evidence under Miranda. But presumption doesnt require statements and their fruits be discarded as inherently tainted - When fruit of noncoercive Miranda violation is neither witness nor article of evidence, but accuseds OWN voluntary testimony, absence of coercion or improper tactics undercuts twin rationales for (trustworthiness of evidence, deterrence) broad exclusion rule - Unwarranted extension of Miranda to hold that a simple failure to give warnings, unaccompanied by coercion, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period - Miranda requires unwarned admission be suppressed, but any subsequent statement should turn on whether its knowingly and voluntarily made - Failure to give warning doesnt mean statements have been coerced, but only that courts will presume privilege against compulsory self-incrimination hasnt been intelligently exercised. In these cases, careful and

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thorough administration of Miranda warnings cures condition that rendered unwarned statement inadmissible - Miranda warnings were eventually read and were complete. No question D knowingly and voluntarily waived right to remain silent before making statement. No coercive environment during interrogation. Even at home, it was at midday, in Ds own home with mother a few steps away. Suspect didnt even know he was under arrest when he admitted his presence at burglary. Police didnt exploit admission to pressure D into waiving right to remain silent. - Dickerson v. United States, (2000) - Holding Miranda cannot be overruled by Act of Congress, so the ruling and its progeny govern admissibility of statements made during custodial interrogation in both state and federal courts - Reasoning - Miranda is a constitutional decision: opinion itself states court gave concrete constitutional guidelines. Court said other potential alternatives for protecting privilege against self incrimination during custodial interrogations could exist and that legislature could find solutions that were as effective in informing right of silence and assuring opportunity to exercise it - Exceptions only mean that no constitutional rule is immutable. Court cant foresee all circumstances where rule will be applied and modifications are normal part of con law - Missouri v. Seibert (2004) - Holding When interrogator uses deliberate, two-step strategy, predicated upon violating Miranda during extended interview, post-warning statements related to substance of prewarning statements must be excluded absent specific, curative steps.. Curative steps are still available with deliberate 2 stage questioning like substantial break in time and circumstances - Reasoning - Was 2 round interrogation deliberate? If not, end analysis there. Subsequent statement is fine if warned. - Apply factors to see if 2 nd warning was effective, curative steps - Overlap of the 2 statements, detail of questions in first round, time/setting, continuity of personnel, degree which 2 nd interrogation questions were like the first - Note physical evidence found through violation of Miranda is admissible

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D. Miranda Custody - Oregon v. Mathiason overruled by Berkemer - Dissent in this case becomes rule If suspect reasonably believed he wasnt free to go during questioning, he was deprived of freedom of action in a significant way. Custody. Even if he werent in custody, coercive elements in this case were so pervasive as to require similar warnings. Interrogated in privacy and in unfamiliar surroundings, factors stressed in Miranda. He was subject to deceptive strategies from Miranda. Also, being parolee contributes. - Berkemer v. McCarty, (1984) - Holding person in custodial interrogation is entitled to benefit of procedural safeguards of Miranda regardless of the severity of offense for which hes arrested or suspected - Reasoning - One of the major advantages of Miranda is its clarity and this court wont carve out an exception for misdemeanor traffic offenses - No question P was in custody when he was placed under arrest and instructed to get into car. BC he wasnt informed of rights then, subsequent admissions shouldnt have been used against him - Are roadside questions made to motorist before arrest considered custodial interrogation? - Though pulling over is a seizure, Miranda is to be enforced only in situations in which concerns that powered the decision are implicated. So does stop exert pressures that sufficiently impair free exercise of privilege against self-incrimnation? No - Stops are temporary and brief and mortorist expects hell only be questioned for a short period and will be allowed to continue on his way - Stop is public and so reduces ability of cop to use illegitimate means of getting statements, and usually only one officer is present - These situations are like Terry stops in that police can ask questions to investigate but suspects not required to answer and must be released unless PC develops - If motorist who has been detained pursuant to traffic stop thereafter is subjected to treatment that renders him in custody for practical purposes, he IS entitled to Miranda protections - In this case, initial stop wasnt custodial interrogation so statements can be used

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- Question is how reasonable man in similar situation would have understood his situation. E. Miranda Interrogation - Rhode Island v. Innis, (1980) - Holding Subtle compulsion not enough. Interrogation is words or actions on part of police that they should know are reasonably likely to elicit incriminating response - Reasoning - Court first defines interrogation - Not merely asking questions. Concerns from Miranda go beyond that and to practices that subject D to will of his examiner. - Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent (any words or actions on part of police that police should know are reasonably likely to elicit an incriminating response from the suspect) - Focuses primarily on perceptions of the suspect, rather than intent of police - Suspect NOT interrogated. Dialgoue between officers was just conversation to which no response from D was invited. Nothing suggests officers knew D was peculiarly susceptible to appeal to his conscience over safety of children, or that they knew he was unusually disoriented at time of arrest. Conversation was very short and comments werent evocative. F. Waiver and Invocation of the Miranda Rights - North Carolina v. Butler, (1979) - Holding Individual may waive Miranda rights, but waiver must be knowing, intelligent, and voluntary - Reasoning - Express oral or written waiver of right to remain silent or right to counsel is usually strong proof of validity of that waiver, but its not necessary or sufficient to establish one - Question is whether D knowingly and voluntarily waived Miranda. Silence isnt enough, but that doesnt mean Ds silence along with understanding of his rights and a course of conduct indicating waiver cant support conclusion he didnt waive rights - Courts must presume D didnt waive and prosecutions burden is great - Theres no doubt D was apprised of his rights effectively. Only question is if he waived exercise of right to counsel presence during questioning. No reason to imply negative answer in absence of EXPRESS waiver.

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- Question of waiver must be determined on particular facts and circumstances surrounding that case, including background, experience, and conduct of the accused - Notes - Miranda waivers are to interrogation in general, not to interrogation about a particular crime. Miranda isnt Crime specific - Edwards v. Arizona, (1981) - Holding Once suspect asserts right to counsel, police may not question him again w/o counsel present, unless suspect initiates further communication, then waives after re-warning - Reasoning - SCOTUS agrees Edwards exercised his right on 19 th to have counsel present during interrogation and didnt validly waive that right on the 20th - Waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. This depends on the particular facts and circumstances surrounding that case, including background, experience, and conduct of the accused - When an accused has invoked right to have counsel present during custodial interrogation, a valid waiver of that right cant be established by showing only that he responded to further police-initiated custodial interrogation even if he was advised of his rights - Additionally, when an accused has expressed desire to deal with cops only through counsel, he isnt subject to further interrogation by authorities until counsel has been made available UNLESS he himself initiates further communication, exchanges, or conversations w/cops - Miranda indicated assertion of right to counsel required interrogation to cease until attorney present. This ruling is in line with that case. - Cops returned not at Edwards request, and he even said he didnt want to talk to them - Blackboard Readings - Berghuis (warden) v. Thompkins (accused), (2010) - Holding Invocation of right to silence must be clear and unambiguous - Reasoning - If an accused makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights

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- No principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel. Both protect privilege of right against self crimination - A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity - Thompkins didnt invoke right to remain silent bc he didnt make unambiguous statement saying he was. - Even absent the accuseds invocation of the right to remain silent, the accuseds statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived [Miranda] rights when making the statement. The waiver inquiry has two distinct dimensions: waiver must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. - Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accuseds uncoerced statement establishes an implied waiver of the right to remain silent - Here, Thompkins understood his Miranda rights. And The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time. Also, not coerced. - The fact that Helgerts question referred to Thompkinss religious beliefs also did not render Thompkinss statement involuntary. [T]he Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion. these circumstances, Thompkins knowingly and voluntarily made a statement to police, so he waived his right to remain silent. - After giving Miranda rights, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it follows the police were not required to obtain a waiver of Thompkinss Miranda rights before commencing the interrogation. - In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police - JDB v. North Carolina, (2011) - Issue Is childs age relevant to custody analysis of Miranda? Yes

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- Reasoning - Is there custody? Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave - Reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. - So long as the childs age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances unknowable to them, nor to anticipate the frailties or idiosyncrasies of the particular suspect whom they question - State argues: - Age is personal characteristic rather than external circumstance of interrogation. RESPONSE: state concedes some personal characteristics will be relevant - Age goes to how person will perceive circumstances of interrogation. RESPONSE: most factors considered do that anyway - Age will reduce clarity: age isnt obscure factor to assess. Just use common sense - Due Process Voluntariness test takes age into account already: But Mirandas procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is at stake. - Maryland v. Shatzer - Holding - Invocation of right to counsel and right o remain silent doesnt last forever. Must be reasserted after 14 days to be effective - Reasoning - To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the high standard of proof for the waiver of constitutional rights - The rationale of Edwards is that once a suspect indicates that he is not capable of undergoing custodial questioning without advice of counsel, any subsequent waiver that has come at the authorities behest, and not at the suspects own instigation, is itself the product of the inherently compelling pressures and not the purely voluntary choice of the suspect - When, unlike what happened in these three cases, a suspect has been released from his pretrial custody and has returned to his normal life for

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some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members, and friends. And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely - Extending Edwards too far would prevent questioning in cases involving other crimes and in other jurisdictions, too. This would be disastrous - Once person is released from custody and 14 days have passed, waiver no longer valid. 14 day break long enough to end coercive effect of interrogation. - Does incarceration constitute custody for Miranda purposes? Question is if it exerts coercive pressure Miranda intended to protect against. Incarceration doesnt do this. - Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine. Theyre not isolated and they know interrogators have no power over them there.