Michael Mroczka

Criminal Procedure

An Overview of the Criminal Justice System Arrest Initial Judicial Appearance Filing of Formal Criminal Charge Arraignment Trial Sentencing Appeal Collateral Attack Due Process and Incorporation of the Bill of Rights Fourth Amendment o 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 to be searched, and the persons or things to be seized. Fifth Amendment o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Sixth Amendment o In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Fourteenth Amendment o All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The actual constitutional source of control over state law enforcement not the actual amendments themselves. Most of the BOR provisions have been incorporated to the States via the 14th AMD Substantive Due Process rights are traditionally those freedoms that dont appear in the text of the Constitution but have been determined by the Court to be within the Constitutions penumbra (right to privacy, etc.). Procedural Due Process applies to government proceedings that can result in the deprivation of an individuals life, liberty, or property. State Constitutions States set the ceiling, U.S. Constitution sets the floor. Massachusetts Article 14 (Comm. v. Stoute) State supreme court is the final arbiter of its own state constitution except in a few states where, by law, the courts must interpret the state constitution in a manner consistent with the U.S. Constitution. Comm. v. Stoute (TWEN) Weather under Art. 14 of Mass. Const., a person is seized when a police officer engages in pursuit which is intended to stop and detain the person for inquiry or whether a seizure occurs only when the person is physically detained by a police officer? Seizure is unreasonable if unsupported by probable cause or reasonable suspicion. When does a seizure begin? o Under 4th Amendment when pursuit ends o Under Mass. Article 14 when pursuit beginsa person is seized, for purposes of art. 14 when a police officer initiates a pursuit with the obvious intent of requiring the person to submit to questioning. Art 14 police need p.c./r.s. before they pursue 4th AMD p.c./r.s. needed when D caught Michigan v. Long (TWEN) D challenged search of his car during which --If there is not a plain statement that a lower state marijuana was found. courts decision rests upon adequate and Michigan Supreme Court reversed conviction independent state grounds and when the state on 4th Amendment grounds but made appears to have rested its decision primarily on references to its own state constitution. federal law, the Supreme Court will assume that Pros appealed to U.S. S. Ct. the decision is in fact based on federal law. D argued that Michigan constitution afforded

Michael Mroczka
more rights than 4th Amendment. Issue: whether there were independent and adequate grounds for the state supreme court decision?

Criminal Procedure
No Independent grounds in this case.

Fourth Amendment Exclusionary Rule: Evidence seized by the State in violation of the Fourth Amendment may not be introduced by the prosecution at the criminal trial of the victim of the unreasonable search or seizure. Chapter 1: The Threshold of the Fourth Amendment Right to be Secure Against Searches FOURTH AMENDMENT APPLICABLE? A. Was there state action? B. Did a search or seizure take place? II. VALID WARRANT? A. Supported by probable cause? B. Issued by a neutral and detached magistrate? C. Were places to be searched and items to be seized described with particularity? D. Executed properly? III. EXCEPTION TO WARRANT REQUIREMENT? A. Was the search incident to an arrest? B. Were exigent circumstances present? C. Is the search justified under the automobile exception? D. Was the search an inventory search? E. Were the items seized in plain view? F. Did the police have valid consent to search? G. Was there a special needs justification for the search? IV. EXCLUSIONARY RULE REQUIRED? A. Does the Defendant have standing to challenge the state action? B. Did the police act in good faith? C. Did the police obtain the evidence from an independent source? D. Would the police have inevitably discovered the same evidence? E. Has the taint of the constitutional violation dissipated? Introductory Note 4th amd. Only applies to official searches and seizures.

I.

HAS A SEARCH OCCURRED? Boyd v. United States

Olmstead v. United States False Friends

On Lee v. United States

Lopez v. United States

Hoffa v. United States

Electronic Eavesdropping

Goldman v. United States (Overruled by Katz ?)

An order to Produce business invoices qualifies as a search because it was a material ingredient and effected the sole object and purpose of a search, which was forcing from a party evidence against himself. wiretapping from outside a building is not a search b/c there was no actual physical invasion and no trespass into a protected location. A speakers consent to the presence of the informant precludes a trespass, and because the speaker was talking confidentially and indiscreetly with one he trusted, and was overheard, no search. Known IRS agents recording of a bribe offer was outside 4th amd. Because the suspect had consented to the agents presence in his office, and had taken the risk of recording and reproduction in court by willingly speaking with agent. An informant who listened to, reported, and testified about Ds inculpatory remarks did not search because he had allowed the informant to enter and listen, and misplaced confidence that the informant would not reveal his wrongdoing. Did not trigger 4th amd by putting detectaphone against outer wall and listening to conversation

Michael Mroczka

Criminal Procedure
inside building. 4th amd intrusion by placing spike mike into party wall and listening through heating ducts. Physical intrusion was sufficient. Placement of listening device that caused thumbtack sized penetration in wall = search. 4th Amd protects persons and not places from unreasonable intrusion. Even in a public place, a person may have a reasonable expectation of privacy in his person. Although the petitioner did not seek to hide himself from public view when he entered the telephone booth, he did seek to keep out the uninvited ear. He did not relinquish his right to do so simply because he went to a place where he could be seen. A person who enters into a telephone booth may expect the protection of the 4th Amd of as he assumes that the words he utters into the telephone will not be broadcast to the world.

Silverman v. United States

Clinton v. Virginia Katz v. United States FBI placed a listening device to the top of the telephone booth and recorded the petitioners end of the telephone conversations, which was then used as evidence against him at his trial. Whether the Fourth Amendment of the Constitution protects telephone conversations conducted in a phone booth and secretly recorded from introduction as evidence against a person?

Justice Harlan Concurring: o Two Part Test: 1. The person must exhibit actual (subjective) expectation of privacy and, 2. The expectation is on that society is prepared to recognize as reasonable. o Goldman should be overruled. United States v. White Whether 4th bars from evidence the testimony In these circumstances, no interest legitimately of govt. agents who related certain protected by the Fourth Amendment is involved, conversations which occurred between D and for that amendment affords no protection to a a govt. informant, which agents overheard by wrongdoers misplaced belief that a person to radio transmitter carried on informant and whom he voluntarily confides his wrongdoing will concealed on his person? not reveal it. (citing Hoffa v. United States). Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. Smith v. Maryland Police had telephone co. install a pen register D voluntarily conveyed numerical info to the to record the numbers dialed from Ds home. phone co. and exposed that info to its equipment in The police did not obtain a warrant. the ordinary course of business. D assumed the risk that the co. would reveal to police, the numbers he Two-part Fourth Amendment analysis: dialed. D in all probability had not actual First, whether the individual, by his conduct, expectation of privacy, and even if he did, the has exhibited an actual expectation of privacy; expectation was not legitimate. that is, whether he has shown that he [sought] to preserve [something] as private; and Second, whether the individuals expectation of privacy is one that society is prepared to recognize as reasonable. Police tracked Ds movements 24 hours a day for 4 weeks with a GPS device installed on his Jeep without a valid warrant. Society recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to haveshort perhaps of his spouse. The intrusion such monitoring makes into the subject's private affairs stands in stark contrast to the relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned by every police practice the Supreme Court has deemed a search under Katz. Privacy expectation should be measured by what the public actually does NOT what the public could do. Knotts is not controlling. Limited movements from discrete journey vs. dragnet-type 24 hour surv. Scalia (4) + Sotomayor: Trespass = Search Sotomayor: Even if no trespass, this is a search

U.S. v. Maynard (TWEN) Appealed, Supr. Ct. United States v. Jones

United States v. Jones

Michael Mroczka

Criminal Procedure

Alito (4) = Trespass N/A. Under Katz, 28 day surveillance of suspected drug dealer is a search. o the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. California v. Craolo Tip that D was growing pot in backyard. To be protected by 4th, person must have a Police unable to see because of fences. Flew constitutionally protected reasonable expectation over the property with a plane at 1,000 feet. of privacy. Any member of the public, flying Officers trained in Marijuana identification overhead could have seen the plants. There was no saw plants, took pics. reasonable expectation of privacy that society is prepared to honor. Open Fields DoctrineThe special protection accorded by the 4th Amd to people in their persons, houses, papers, and effects, is not extended to the open fields. Hester v. United States. Oliver v. United States No societal interest in protecting the activities that happen in open fields. And the lands are usually accessible to the public and the police in ways that a home, an office, or commercial structure would not be. CurtilageThe land immediately surrounding and associated with the home. o Curtilage, unlike the neighboring open fields warrants the 4th amd protections that attach to the home. o Common lawThe curtilage is the area to which extends the intimate activity associated with the santity of a mans home and privacies of life and therefore has been considered part of the home itself for 4 th amd purposes. May not be to the same degree of protection accorded to the home itself. United States v. Dunn Four variables pertinent to determining whether an area is curtilage: o The areas proximity to the home; o The existence of an enclosure around the area; o The nature of the use to which the area is put; and o The precautions taken to exclude others from the area No bright line standard for decideing weather a particular location is curtilage or open field. Instead, all four variables must be considered to determine whether the location falls within the area to which extends the intimate activity associated with the home, and therefore, is a place in which a person my have a reasonable expectation of privacy. Bond v. United States A passenger on board a bus had his luggage squeezed by a border agent. The boarder agent felt a brick-like object that was discovered to be a brick of methamphetamine. Physical manipulation of a carry-on bag violates the Fourth Amendments proscription against unreasonable searches. The Petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat, and [did] not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner as the agent did. Thus, the agent violated the Petitioners Fourth Amendment rights by squeezing the bag. Physically invasive inspection is simply more intrusive than purely visual inspection. Is Expectation of privacy Objectively Reasonable? Site or nature of property inspected? o Person, house, papers, effects? o Curtilage? o Open field? Measures taken to keep private? o Protection against all intrusion? o Any voluntary disclosure/knowing exposure? Type/degree of intrusion? o Could general public intrude in similar manner? o Does general public intrude in similar manner? United States v. Karo Informant consents to installation of tracking device (beeper) into can of ether. Can given to D who puts in his car. Police tracked can to several homes including Ds. Installing a beeper in a container of chemicals with an original owners consent is not a search for Fourth Amendment purposes. However, if information is obtained through use of a beeper device which could not have been obtained through

Michael Mroczka
In application for search warrant, police used fact that can was in Ds house in support of allegation that D was using ether to manufacture cocaine.

Criminal Procedure
visual surveillance, that is a search for Fourth Amendment purposes. A person has a reasonable expectation of privacy that a tracking beeper will not be used to obtain information about the inside of his or her residence. Unlike the information provided by the tracking beeper in United States v. Knotts, the beeper here revealed information about a private residence not open to visual surveillance. Police visual observation of a persons car travel may be augmented by a tracking beeper without constituting a search or seizure under the Fourth Amendment, when the beeper leads the police to a location outside a dwelling. A person has no reasonable expectation that he or she will not be subjected to visual surveillance when traveling by car, and scientific enhancement of police ability to perform this surveillance does not constitute a search or seizure. The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the 4th amd. Reopening the package did not violate privacy expec. Because there was not to be learned that wasnt already known by the police. There was no legitimate interest of privacy because against the field test b/c if it was something other than coke, there is no special interest, and one cannot have a legitimate privacy interest in something that is illegitimate.

United States v. Knotts

Govt. installs beeper into can of chloroform and arrange sale to D. D purchases can and puts it in his car. Police follow as D drives on public streets. D attempts to evade surveillance but beeper helps police locate car at Ds cabin. Further surveillance of cabin give prob. Cause for search warrant.

Kyllo v. United States

United States v. Jacobson p. 40

The police obtained evidence of a marijuana growing operation inside the D home, by using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance of a search warrant for the home. Fed Ex employees opened a package, cocaine, informed police. Gov. action does not threaten protected privacy interests if the government is almost certain to learn nothing at all, nothing of significance, or nothing legitimate.

Chapter 2: Unreasonableness and the Probable Cause Requirement Introductory Note 4th AMD : Probable cause is an essential precondition for a valid warrant to search or to seize. Probable Cause to ArrestExists 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. o Requires that there be a certain quantum of likelihood that: (1) that particular individual (2) has committed or is committing a particular offense. Probable Cause 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 a specifically described item subject to seizure will be found in the place to be searched. o Demands that there be a quantum likelihood that: (1) something that is properly subject to seizure by the government, i.e., contraband or fruits, instrumentalities, or evidence of a crime, (2) is presently (3) in the specific place to be searched. Probable cause does not require certainty, but only a sufficient likelihood. If affidavit relies on hearsay: Draper v. United States Without a warrant, a federal narcotics agent Probable cause exists where the known facts and arrested D, as he disembarked a train. circumstances would cause a reasonable person to Probable cause for the arrest was based on an believe that an offense had been, or is being, informants tip, which was corroborated with committed. A tip from a reliable informant, which an accurate, predictive description of the facts is corroborated by predicting facts unknowable to a surrounding the Petitioners return. stranger, gives rise to probable cause. In determining what facts and circumstances will give rise to probable cause, one must view the facts and circumstances as a reasonable person would view them, and not how they would be viewed in a courtroom. Spinelli v. United States D was traveling between Illinois and Missouri An affidavit used to support the issuance of a to conduct an illegal gambling operation in search warrant must set forth sufficient underlying

Michael Mroczka
Missouri. The FBI observed D traveling across state lines and going to and from a specific residence. The FBI also received information from an informant that D was accepting wagers and operating a handbook by means of a telephone.

Criminal Procedure
circumstances, which would cause a magistrate to judge the informants information independently and support a finding that the informant is reliable/credible. An informants tip must include underlying statements, which describe the circumstances, which give rise to the assertions. An informant must explain why the information is reliable if the informant came upon the information indirectly. In order to issue a warrant, a magistrate must rely upon detailed criminal activities, which are more substantial than mere allegations of wrongdoing.

Aguilar/Spinelli Test: Informants tip? o How does he know? o Why should we believe him? Is the informant credible? Has he provided reliable information? o Sufficient to establish probable cause? If no, does independent police investigation bolster the informants tip? Other indications of criminality in affidavit? Justice Whites view: o Informant must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2) that his information is hearsay, but there is good reason for believing itperhaps one of the usual grounds for crediting hearsay information. Two Prong Test 1. Basis of Knowledge how does the informant know? 2. Veracity why should the informant be believed? o a. Credibility o b. Reliability The police received an anonymous letter outlining specific details about Ds plans to traffic drugs from Florida to Illinois. When the details were corroborated by the Ds actions, police obtained a search warrant and found drugs, weapons and other contraband in the Ds home and automobile. Where an anonymous tip is corroborated with actual police findings, a totality of the circumstances approach is an appropriate way of determining probable cause instead of using the two-pronged test of veracity/reliability and basis of knowledge from Spinelli. The 4th AMD requires no more than a finding by an issuing magistrate that there is a substantial basis that a search will uncover evidence of wrongdoing. When a court decides whether or not to issue a search warrant, the elements of the informants credibility/reliability and basis of knowledge are to be used as guides when considering the totality of the circumstances and are not to be exclusive requirements applied in every case. A stopped vehicle attracted the attention of a In a conventional civil traffic stop, the Fourth vice officer. D then committed traffic violation. Amendment is met by the traditional common-law The officer went to the truck and immediately rule that probable cause justifies a search and saw two bags of crack cocaine. seizure. Regardless of the pretext of the officers action, an arrest would not be rendered invalid and that a lawful post-arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches. Whether an arrest is constitutional when an Whether probable cause exists depends upon the officer lacks probable cause to arrest a person reasonable conclusion to be drawn from the facts for the offense he stated to be the basis for the known to the arresting officer at the time of the arrest, but has probable cause to arrest the arrest. An arresting officers state of mind is person for another offense that is not closely irrelevant to the existence of probable cause and related to the stated offense? his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.

Illinois v. Gates

Whren v. United States

Devenpeck v. Alford

Michael Mroczka

Criminal Procedure

Chapter 3: Unreasonableness and the Warrant Requirement Introductory Note Valid Warrant? o A. Supported by probable cause? o B. Issued by a neutral and detached magistrate? Neutralnot biases Detachednot affiliated with law enforcement Must be capable of determining weather probable cause exists o C. Were places to be searched and items to be seized described with particularity? o D. Executed properly? A. The Warrant Requirement and Searches of Persons, Houses, Papers, and Effects Johnson v. United States A police officer, acting on an informants tip, The entry and search violated the Fourth smelled the odor of burning opium outside the Amendment warrant requirement because police Ds hotel room; the officer knocked on the failed to obtain a warrant due to mere door and entered the room without a warrant inconvenience and not exigent circumstances. and without obtaining the consent of the D. When police have the time and opportunity to The D was arrested and evidence seized from obtain a search warrant, they are required to do so the room was admitted at the Ds trial for drug before conducting a search. The determination of crimes. probable cause should be made by a neutral and detached magistrate, rather than a police officer, whenever possible. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th AMDsubject only to a few specifically established and well-delineated exceptions. Katz. B. The Warrant Requirement and Seizures of Persons United States v. Watson A reliable informant told a federal postal A peace officer [is] permitted to arrest without a inspector that the defendant had supplied him warrant for a misdemeanor or felony committed in with stolen credit cards and would do so in the his presence as well as for a felony not committed future. The postal inspector was present at the in his presence if there was a reasonable ground for scheduled meeting between the informant and making the arrest. Government officers are the defendant and proceeded to arrest the permitted to arrest without a warrant for both defendant without a warrant, after the misdemeanors and felonies committed in the informant confirmed that he had the stolen presence of the officer or when there is probable credit cards. cause to do so. Gerstein v. Pugh The 4th AMD requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. States must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and a judicial officer must make this determination either before or promptly after arrest. Gerstein Hearings o Arrestee entitled to fair and reliable determination of probable cause by a judicial officer either before or promptly after arrest. o Non-adversarial proceeding. No right to counsel. o Prompt = within 48 hours of arrest. o Penalty for violation can include suppression of fruits, i.e. statements by D (Powell v. Nevada, 511 U.S. 79 (1994)) County of Riverside v. A jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, McLaughlin as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges. In instances where it takes longer than 48hours, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. . . . A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Atwater v. City of Lago A mother was taken into custody for violation The standard of probable cause applies to all Vista of Texas strict seatbelt law. arrests, without the need to balance the interests and circumstances involved in particular situations. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense, he may, without violating the Fourth Amendment, arrest the offender. C. The Issuance, Content, and Execution of Warrants United States v. Grubbs D purchased videotape containing child porn The probable-cause requirement looks to whether from a Website operated by an undercover evidence will be found when the search is postal inspector. Officers arranged a conducted, all warrants are in a sense, anticipatory.

Michael Mroczka
controlled delivery of a package containing the videotape to Ds residence. A postal inspector submitted a search warrant application to a Magistrate, accompanied by an affidavit describing the proposed operation in detail. The package was delivered. The inspectors detained D as he left his home, then entered the house and commenced the search. D was provided with a copy of the warrant, which included attachments but not to supporting affidavit that explained when the warrant would be executed. Whether anticipatory search warrants are categorically unconstitutional? The court defined an anticipatory search warrant as 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.

Criminal Procedure
Anticipatory warrants are, therefore, no different in principal from ordinary warrants. They require a magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. Two pre-requisites of probability must be satisfied (1) It must be true that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place (2) there is probable cause to believe that the triggering condition will occur.

A warrant is not subject to attack as improperly issued either because the conclusion on which it is based or the information supporting that conclusion ultimately proves erroneous. A warrant is subject to a 4th AMD challenge if the officer supplying the basis for the warrant intentionally or recklessly furnishes false information to the issuing magistrate. Franks v. Delaware Where the defendant makes a substantial preliminary showing, using affidavits or statements of reliable witnesses, 1) that a false statement was included in a warrant affidavit by the affiant police officer, with either knowledge or reckless disregard as to its falsity, and 2) that the false statement is necessary to the finding of probable cause, then the Fourth Amendment requires that a hearing be held to allow the D to adduce evidence to support these claims. If the D establishes the affiants reckless disregard of the truth by a preponderance of the evidence at the hearing, then, if the information in the affidavit is insufficient to supply probable cause (after the false information is set aside), the search warrant is invalid and the fruits of the search are inadmissible at the Ds trial. Andreson v. Maryland Warrant specifically stated what documents The Ds 4th AMD rights were not violated when could be taken, although the final clause was the warrant specifically stated what documents extremely vague, and seemed all could be taken, although the final clause was encompassing. [a whole bunch of extremely vague, and seemed all encompassing. particularly described papers dealing with Lot Rule: General warrants are prohibited by the 4th 13T] together with other fruits, Am. Makes general searches impossible and instrumentalities and evidence of crime at this prevents the seizure of one thing under a warrant [time] unknown. describing another. Nothing is left to the discretion The warrant had an exhaustive list of things of the officer executing the warrant that could be seized, but a vague phrase, The warrants did not authorize the executing together with known fruits of crime at this officers to conduct a search for evidence of other time unknown. crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T. Groh v. Ramirez Warrant had no specifics on it, but the application to the magistrate was very specific. Supreme court held it was impermissible based on the 4th amendment, but COULD have been permissible if it incorporated the affidavit by reference. Police obtain a search warrant to search the premises known as 2036 Park Avenue third floor apartment, but discover after acquiring contraband that they were in Ds separate apartment (didnt know there were 2 apt.). The warrant was valid when issued because such validity must be assessed on the basis of the information the officers disclose or have a duty to discover and disclose to the issuing magistrate. The officers failure to recognize the overbreadth of the warrant was objectively understandable and reasonable, therefore admit the fruits of the search. The description of premises to be searched within a warrant does not have to be exact but enough that an officer can reasonably identify the place

Maryland v. Garrison

Michael Mroczka
intended. Pursuant to the proper warrants, police entered the Ds home, without knocking and annoucing, searched it, and arrested the D and her roommate. Is knocking and announcing your presence ever required under the Fourth Amendment for police officers executing a search warrant in a felony drug investigation? No knock warrants may be reasonable if sufficient cause is demonstrated ahead of time.

Criminal Procedure

Wilson v. Arkansas

Richards v. Wisconsin

Police officers must knock and announce their presence before executing a warrant, unless doing so would endanger them or lead to the destruction of evidence. Yes, in some situations. A blanket exception to the knock and announce rule for felony drug investigations is unconstitutional. What is to be examined is whether the decision to not do so was based on the officers reasonable suspicion that knocking and announcing their presence would be dangerous, futile, or would inhibit the investigation of the crime by allowing the destruction of evidence. The decision was reasonable in this case because once the officers reasonably believed that D knew who they were when he opened the door, it was reasonable to force entry given the disposable nature of the drugs.

United States v. Ramirez

The reasonableness of a no knock entry does not depend on whether property is destroyed but on the criteria of Richards as to whether there is a reasonable suspicion that advance notice of entry would endanger the police or risk destruction of evidence. United States v. Banks The police obtained a search warrant for Ds Forcible entry after waiting 15 to 20 seconds after apartment to look for drugs and waited 15 to knocking and announcing was reasonable, because 20 seconds after knocking and announcing the evidence of drugs was easily disposable, and their presence before using a battering ram to police had reasonable grounds to expect that the break down Ds door. exigent circumstances of evidence destruction would arise instantly upon knocking. The police entry occurred during the day when the D was likely to be awake, and 15 to 20 seconds was long enough for the D to start destroying the drugs. Although a warrant is valid, the execution of the warrant might also be unreasonable because the officers have exceeded the scope of their authority under the warrant. o Must search only where the object described in the warrant could be found. Officers can also exceed the scope of their authority under a properly issued warrant by permitting other individuals to accompany them during a search. Michigan v. Summers p.c. to search house generally permits detention of all persons present and search of target. Ybarra v. Illinois p.c. to search barroom and bartender does not extend to all persons present. Police need individualized suspicion Chapter 4: Reasonble Searches Without Warrants: The Nature and Scope of the Exceptions to the Warrant Requirement Introductory Note Warrant exceptions o Searches incident to arrest, exigent circumstances, automobile doctrine, inventory, consent, plain view. For Each Exception, at least three basis aspects should be identified and expolored: o The Underlying rationale of the exception o The precise showing necessary to invoke the exception o The scope of the warrantless authority conferred by the exception A. Searches Incident to Arrests and Searches for Arrestees Chimel v. California D was arrested inside his home and police Incident to a lawful arrest, a search of any area asked him for consent to search the home. The beyond the arrestees immediate control is defendant refused the request. The police unlawful under the 4th AMD unless there is a clear proceeded nonetheless, incident to the lawful danger that evidence may be destroyed or arrest and searched in different rooms. The concealed or there is an imminent threat of harm to police also had Ds wife open various dresser the arresting officers. drawers and remove their contents. Can an entire house be searched incident to arrest?

Whether the reasonable suspicion standard that Richards announced for no-knock entries applies when the entry results in the destruction of property?

Michael Mroczka
United States v. Robinson D placed under arrest for Operating After Revocation. Officer conducts search of D and feels unknown object in left breast pocket. Off reaches into pocket and retrieves a crumbled up cigarette package but cant tell whats inside. Pack contains 14 gel caps of heroin. Does not extend to citations. Knowles v. Iowa.

Criminal Procedure
Incident to a lawful arrest, even for a driving violation, a thorough search (frisk) of an arrestees person for weapons and also to prevent the concealment or destruction of incriminating evidence is reasonable under the 4th AMD. A search of an arrestees person beyond frisking for weapons is reasonable under the 4th, even where there is no reason to believe the arrestee committed any crime other than the traffic violation.

Virginia v. Moore

Belton v. United States

Thornton v. United States

Washington v. Crisman

Arizona v. Gant

Whether a police officer violates the 4th AMD by making an arrest based on probable cause but prohibited by state law? Officers had arrested D for driving with a suspended license, a misdemeanor. Upon searching him, they found crack cocaine and cash on his person. Under state law, driving with a suspended license was not an arrestable offense except as to those who fail or refuse to discontinue the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Probable cause to believe that a person has committed even a minor offense in an officers presence renders an arrest constitutionally reasonable. Other precedents also counseled against changing the calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. In general, when States go above the 4th AMD minimum, the Constitutions protections concerning search and seizure remain the same. An arrest based on probable cause serves interests sufficient to justify the seizure whether or not the state has chosen to forego the option of arrest. In addition, the interest in readily administrable rulesi.e., the need for a bright-line constitutional standardsupports a refusal to tie the constitutionality of an arrest to the dictates of state law. Finally, linking reasonableness to state law would cause 4th AMD protections to vary based on the time and place of an arrest, an undesirable state of affairs. For all these reasons, when officers have probable cause to believe that a person has committed a crime in their presence, the 4th AMD permits them to make an arrest. An arrest based on probable cause is a lawful arrest, and a search of an arrestee incident to a lawful arrest is constitutionally reasonable. When a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Whether, under the search incident to arrest exception to the 4th AMD, it is appropriate to allow evidence obtained when an officer searches the vehicle of a person they have arrested, despite the fact that they did not make contact with the person until after they left the vehicle. D was handcuffed and placed in the back of the police car. Under the search incident to arrest exception of the 4th AMD, an officer may search the vehicle of a person after they have been arrested. A search incident to arrest under Belton is valid when a recent occupant of a car is arrested outside a car, because this situation presents the same dangers of harm to the arresting officer and risk of destruction of evidence as when an arrestee is in a car. The recent occupant arrestee does not need to be within reach of the car interior under Belton because of the police need for a bright line rule in making searches of car interiors incident to custodial arrest. Scalia conc.: Belton searches should be limited to the situation where it is reasonable for an officer to believe that similar evidence relevant to the crime for which D was arrested might be found in the car interior. Here the D was arrested for a drug crime and since it was reasonable to assume that further contraband might be found in the car he had recently occupied, the Belton search was valid. Arrestee entered dorm room after police said that they would have to accompany him. It is not unreasonable under the 4th AMD for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. Insofar as the monitoring requires a warrantless entry into a private place, an exception is justified by the officers compelling needs to ensure his own safety and the integrity of the arrest. D was arrested by police and charged with driving on a suspended drivers license. Police arrested D in a friend's yard after he had parked his vehicle and was walking away. D and all other suspects on the scene were then secured in police patrol cars. The officers then searched Ds vehicle and found a weapon and a bag of cocaine. Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. D clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for

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the search was also lacking in this case. Whereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended licensean offense for which police could not expect to find evidence in the passenger compartment of Gants car. Payton v. New York Officers went to Paytons apartment to arrest The 4th AMD prohibits warrantless entries for him for murder and, when no one answered searches of homes, absent exigent circumstances, their knock, forcibly entered, w/o warrant. even when there is probable cause. It is (Two cases) Upon entering, they saw a shell casing in plain unconstitutional, under the 4th AMD to search a view that would later be admitted into home during an arrest when there is no arrest evidence. Police entered Riddicks home w/o a warrant and there are no exigent circumstances. warrant, and they found drugs in a drawer two The entrance to a persons home is a critical point feet from where Riddick was arrested. Whether where constitutional safeguards are heightened. there is an illegal search and seizure when, This is true even when probable cause exists or without a warrant, police search a home when there is statutory authority permitting the during the course of an arrest and seize searches. *An arrest warrant founded on probable evidence where there is probable cause, but no cause implicitly carries with it the limited authority exigent circumstances? to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.* Steagald v. United States Police had an arrest warrant for a federal An arrest warrant cannot authorize the police to fugitive, Lyons; they had probable cause to enter the house of a person not named in the believe that Lyons could be found at Ds warrant in the absence of exigent circumstances, house, based on information supplied by an assuming that police have probable cause to informant. They relied on the arrest warrant to believe that the person named in the warrant is enter Ds home; Lyons was not found, but located in the house. An arrest warrant only police saw evidence of drugs in plain view and authorizes the police to arrest the named person in arrested D; public or by entering that persons home. United States v. Santana D standing in the threshold of the front door of The threshold of the front door is a public place for her home was arrested without a warrant. the purposes of the 4th AMD; not a place where she had any expectation of privacy. She was as exposed to the public as if she were standing completely outside her house. B. Exigent Circumstances Searches Walden, Maryland D was arrested in his home after a robbery. The search without warrant was valid as the Penitentiary v. Hayden The robber had been followed by two cab exigencies of the situation made that course drivers to the residence. Their dispatcher imperative. Under the circumstances speed . . . notified the police, who arrived in short order was essential, and only a thorough search of the and were permitted to enter by Ds wife. As house for persons and weapons could have insured they searched the house, police found that D was the only man present and that the police weapons, ammunition, and clothing that the had control of all weapons which could be used robber was described as wearing. The police against them or to affect an escape. The had no search/arrest warrant. permissible scope of the search must at least be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape. Welsh v. Wisconsin D was seen driving a car erratically, and the car eventually swerved off the road and came to a stop in an open field. A passerby called the police, and before the police arrived the driver walked away. Officer I.D. D from the registration. W/o a warrant officer went to the petitioner's home. They found him lying naked in bed. The warrantless, nighttime entry of petitioner's home to arrest him for a civil, nonjailable traffic offense, was prohibited by the special protection afforded the individual in his home by the 4th AMD. When Gov. interest is only to arrest for a minor offense that presumption of unreasonableness is difficult to rebut, and the Gov. usually should be allowed to make such arrests only with a warrant. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Exception to a home entry should rarely be sanctioned. o Evidence of Ds blood-alcohol level may dissipate is not sufficient here since the minor offense is insufficiently substantial to justify warrantless in-home arrests under exigent circumstances (where dissent disagrees). No Hot Pursuit b/c no immediate and continuous pursuit No public safety b/c he already abandoned car Brigham City, Utah v. Officers entered a home without a warrant after witnessing an altercation in the kitchen that involved Stuart four adults and one juvenile. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously inured or threatened with such injury. It is reasonable for an officer to enter a home w/o a warrant to

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render emergency assistance to an injured occupant or to protect an occupant from imminent injury. *ongoing violence within the home* Michigan v. Fisher Man going crazy in his house, throwing Officers may enter a home to provide assistance. things, etc. Police noticed he was bleeding. Does not depend on subjective intent or the Officer pushed front door open and noticed D seriousness of the crime. It depends on an pointing gun at him. Officers statement about objectively reasonable belief that a person w/in the gun was suppressed at trial b/c of home entry. house is in need of immediate aid. Could have been hurting/already hurt himself or others. Vale v. Louisiana Police, holding a warrant for Ds arrest If a search of a house is to be upheld as incident to witnessed what they believed was a narcotics an arrest, the arrest must take place inside the deal outside Ds house after he went inside house. This arrest did not, so the search fails under and brought something out to give to a known the 4th AMD, and introducing the fruits into addict. They arrested D on the front steps and evidence was thus error. Warrantless searches of a proceeded to enter and search the house, dwelling are constitutionally valid only in a few discovering narcotics in a bedroom. specific exceptions, none of which apply here. What one needs to examine in determining the propriety of this result is how practical an alternative it is to obtain a warrant quickly by telephone. The majority is convinced that there are not exigent circumstances in this case sufficient to uphold a warrantless search, but it is unclear how adequate their evaluation of the potential of quickly obtaining a warrant to search the home is. It actually seems quite possible in this situation that the evidence could be quickly destroyed (the family was present). Kentucky v. King Police banged loudly on door and announce Warrantless searches conducted in exigent they were police. Heard people inside, circumstances do not violate the Fourth sounded like they might be destroying Amendment so long as the police did not create the evidence. exigency by violating or threatening to violate the Fourth Amendment. Illinois v. McArthur Ds wife had two officers accompany her to Police officers, operating with probable cause that the trailer where she and D lived. She wanted the domicile contained incriminating evidence, to remove her belongings. Wife told the under the reasonable belief that the evidence would officers that she saw D put some dope under be destroyed, who make efforts to reconcile their the couch. One of the officers then asked D if law enforcement needs with the demands of he could search the trailer. D refused to give personal privacy and placed a restraint for a his consent. The other officer then went with to limited period of time, are compliant with the obtain a warrant. The officer remaining Fourth Amendment behind refused to allow D into the trailer unless an officer accompanied him. C. Vehicle and Container Searches Chambers v. Maroney A service station was robbed. Two teenagers If an effective search [of a car] is to be made at any outside and the cashier identified the type of time, either the search must be made immediately car the suspects were driving, as well as the without a warrant or the car itself must be seized clothing two of the men were wearing. The car and held without a warrant until a warrant is was stopped, the occupants were arrested, and obtained. The court pointed out that probable the car was taken to the police station, where clause applied in either circumstance, and so there it was thoroughly searched, yielding two guns, is little to choose in terms of practical proceeds from the robbery, and other consequences between an immediate search evidence. without a warrant and the cars immobilization until a warrant is obtained. Generally, the level of intrusion under the 4th AMD, immediate search vs. seizure in anticipation of a warrant, may depend on a variety of circumstances. The Automobile Exception Underlying Rationale: o Automobiles are mobile and can be moved quickly out of the locality or jurisdiction in which the warrant is sought. Chambers. Precise Showing Necessary to Invoke the Exception: o Probable cause to believe that the vehicle is carrying contraband or illegal merchandise, etc. Chambers. Scope of the Warrantless Authority Conferred by the Exception: o Timing/location of search: Immediately without a warrant or seized and held for the period necessary to obtain one. Chambers. o Areas searched: Coolidge v. New Car was parked in arrestees driveway. Hampshire The police could not legally seize the car, remove it, and search it at their leisure without a warrant to

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authorizing this. The word automobile is not a talisman in whose presence the 4 th Amendment fades away and disappears. Warrantless searches of a car are acceptable when they are of an automobile stopped on the highway, and exigent circumstances exist. Chambers. The police could not legally seize the car, remove it, and search it at their leisure without a warrant to authorizing this.

Cardwell v. Lewis United States v. Johns Texas v. White

California v. Carney

Pennsylvania v. Labron; Pennsylvania v. Kilgore Florida v. White

United States v. Chadwick

Arkansas v. Sanders

Robbins v. California United States v. Ross

California v. Acevedo

Vehicle parked on public property is not protected as much as one on private property. Police may not indefinitely delay a warrantless vehicle search, but no specific presumptively unreasonable time was given. D arrested at a bank while trying to pass off Chambers does not require that a warrant be fake checks. He was seen stuffing something obtained to search a car, as long as the delay in into the seats of the car, but the car was taken time is reasonable. to the station, where officers searched the car without the Ds consent. They found the fake checks. Police had probable cause to believe that D Although a mobile home possesses some of the had drugs in his mobile home, which was attributes of a home, it should be treated as a car parked in a parking lot. Police watched the for Fourth Amendment purposes, because of its home, and when D stepped out of it, one mobility and extensive regulation when operated officer entered the home and saw drugs in on the highway. Thus, a warrantless search may be plain view. They seized the drugs and arrested made of a mobile home, when police have D probable cause to search it as required by the car search doctrine. No exigency is required. The car search exception is really a vehicle exception that does not depend on the uses to which the vehicle is put. If a car is readily mobile and probable cause exists to believe it contains contraband, the 4th AMD thus permits police to search the vehicle without more. Police did not have probable cause to believe According to Carroll v. United States, the Fourth that Ds car contained contraband, but they Amendment recognizes that police need to seize seized it without a warrant because they cars without warrants in order to search for believed that it was subject to forfeiture under contraband before it is spirited away, and the state law, based on the fact that D had used it same need justifies the need to seize a car without months earlier to deliver drugs. During a car a warrant when the car itself is contraband as an inventory, cocaine was found in the car. object of forfeiture. Probable cause to believe there were drugs in Absent exigency, the warrantless search of doublethe footlocker, police waited until D put it into locked luggage just placed in the trunk of a parked the back of a car. Arrested D and took the vehicle is a violation of the 4th AMD and not footlocker to station. justified under the automobile exception. The court reasoned that while luggage is movable like an What if they drove away? automobile, it does not have the lesser expectation of privacy associated with an automobile. Absent exigency, the warrantless search of personal luggage merely because it was located in an automobile lawfully stopped by the police is a violation of the 4th AMD and not justified under the automobile exception. The Sanders warrant requirement governed every container unless the container is such that its contents may be said to be in plain view. Police received info that was sufficient to give When probable cause justifies the search of a them probable cause to believe that there were lawfully stopped vehicle, the search of every part drugs in Ds car. After the D was arrested, his of the vehicle and its contents that may conceal the car was searched, and a paper bag was found object of the search is permissible. Based on the in the trunk. Upon opening the bag without a probable cause here to search the car for drugs, warrant, police found heroin. police could perform a probing search of compartments and containers found in the car. When police observed the D as he carried a brown paper bag from a drug dealers apartment, they had probable cause to believe that it contained marijuana. D put the bag in his car trunk and drove away. The police stopped Ds car and opened the trunk to search for the bag. Since closed containers may be opened during a warrantless car search based on probable cause under Ross, such containers also may be opened when the police have probable cause to search a container that is placed in a car, but not probable cause to search the whole car. Once a container

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is placed in a car, it becomes subject to the lessened expectations of privacy in the car. It would be confusing to require police to use different search rules for containers found in cars and containers tracked to cars. The scope of a police search of a car in order to find a probable cause object is narrower than a search of the car based on probable cause to search the entire car; when making the former type of search, police may search only for the container they have tracked to the car. When they find it and seize it, they can search no further. The mere placement of such a container in a car does not give rise to probable cause per se to search the entire car for similar evidence. During a car search based on probable cause, When police have probable cause to search a car, does the Fourth Amendment allow police to they may search the belongings of passengers that search the belongings of passengers who are are capable of containing the object for which the not suspected of criminal activity? The car is being searched. Passengers have a reduced passengers purse was in the back seat and she expectation of privacy in the belongings that they was in the front. transport in cars. Does not say weather an object attached to or carried by the passenger is within the automobile exception; the body itself is not. After Ds car was impounded and towed to a police lot because of multiple parking violations, the police searched the car to remove valuables, in accordance with standard inventory procedure. The police found marijuana in the glove compartment, and it was seized and admitted at Ds trial for a drug crime. D was arrested and he had a purse-type shoulder bag with him on the trip to the police station. While at the station, police took a pack of cigarettes out of the bag and the officer found drugs in the cigarette package. An officer performed a routine inventory search of Ds vehicle before the vehicle was towed to an impoundment lot. During the search, the officer opened a closed backpack and found drug paraphernalia that led to charges of unlawful possession. The police had no policy with regard to the opening of closed containers during an inventory search. A search of the trunk revealed a locked suitcase that was forced open by police; the marijuana found in the suitcase was admitted at Ds trial for a drug crime. The 4th AMD permits police to conduct a warrantless search of an impounded vehicle, when following standard inventory procedures. The purpose of an inventory is not criminal prosecution, but protection of the police against claims of theft, vandalism, or negligence, and the avoidance of danger to police or others that may be caused by the car or its contents. It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. If a car inventory is performed pursuant to standardized procedures and not in bad faith or for the sole purpose of investigation, a search of the entire vehicle is reasonable, including closed containers found in it, even though not conducted pursuant to a warrant based on probable cause. Police must have standardized criteria for opening containers in a car during an inventory search. Where no such criteria exist, police may not justify the opening of a container as an inventory search. The standardized criteria for opening containers may be based, for example, on all or nothing rules, or may allow police to open closed containers whose contents may not be ascertained from their exteriors. A police officer may be given the discretion in a standardized policy to determine whether to open a closed container in light of the nature of the search and the characteristics of the container.

Wyoming v. Houghton

D. Inventory Searches South Dakota v. Opperman

Illinois v. Lafayette

Colorado v. Bertine

Florida v. Wells

E. Consent Searches Did the Police Have Valid Consent to Search? o Voluntariness? Totality of the circumstances Knowledge of right to refuse Level of intelligence; schooling Coercive atmosphere o Authority? Actual? Apparent? Schneckloth v. Bustamonte Police stopped the vehicle containing D (a passenger) and five other passengers after

The consent to a vehicle search did not violate the 4th and 14th AMDs .The test to determine if a

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they noticed a broken headlight and license plate light. When the driver could not produce a license, the police asked for someone who could produce identification. Another passenger responded, and when the police asked him if they could search the vehicle he consented. Three stolen checks were found, and they were used as evidence to convict D.

Criminal Procedure
subject has voluntarily consented is to review the totality of the circumstances. If the subject knows he or she has a right to refuse, it is a factor to be considered, but that fact is not the sole consideration. (no evidence of coercion). *When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the 4th and 14th require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. While the subjects knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.* Government does not have to prove that an individual in custody was informed or otherwise aware of the right to refuse consent. Whether the 4th AMD requires that a lawfully seized D must be advised that he is free to go before consent to search will be recognized as voluntary? Totality of facts Even if a lawful detention has ended, advice that a suspect is free to go is not a prerequisite for a voluntary consent to search. The 4th AMD does not require that police must always inform detainees that they are free to go before a detainees consent to search may be determined to be voluntary. The voluntariness of a detained motorists consent to a search of a car should be determined by a totality of circumstances, and knowledge of the fact that the motorist is free to go is only one factor in that inquiry. D was arrested for robbery. D leased home The consent of one who possesses common from the Graff family.. Three police officers authority over premises or effects is valid as went to Ds home and were allowed into the against the absent, nonconsenting person with home by Ms. Graff who also lived there. The whom that authority is shared. police were admitted to enter the home. The It appears to us, given the admissibility of Mrs. officers told Ms. Graff that they were looking Graffs and respondents out-of-court statements, for money and a gun and asked if they could that the Government sustained its burden of search the home. The trial court found at the proving by the preponderance of the evidence that suppression hearing that there was consent to Mrs. Graffs voluntary consent to search the east search the home. The officers found money in bedroom was legally sufficient to warrant a bag in the closet of Ds bedroom who he admitting into evidence the $4,995 found in the shared with the individual that answered the diaper bag. door. The standard for measuring the scope of a suspect's consent under the 4th AMD is that of "objective" reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect. When a person gives officers general, unrestricted consent to search for narcotics in his vehicle, it is objectively reasonable for the police to conclude that the general consent to search respondent's car includes consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container Whether one occupant may give law In the circumstances here at issue, a physically enforcement effective consent to search shared present co-occupant's stated refusal to permit entry premises, as against a co-tenant who is prevails, rendering the warrantless search present and states refusal to permit the unreasonable and invalid as to him. search? An acquaintance of the respondent, Fisher, Warrantless searches of premises are permitted phoned police after the respondent supposedly when police have a reasonable belief that voluntary beat her. She escorted the police to the consent was obtained from a party who possesses respondents apartment, and Ms. Fischer common authority over the premises even if they maintained that it was our apartment and did not have such authority. The test was not that she had belongings there. She opened up whether the party actually had any authority over the apartment with a key that, unbeknownst to the premises, but rather whether it was reasonable the police, was never given to Ms. Fischer by for the police to believe that consent was granted the respondent. from a party with authority.

United States v. Watson Ohio v. Robinette

United States v. Matlock

Florida v. Jimeno

Georgia v. Randolph

Illinois v. Rodriguez

F. The Plain View Doctrine REQUIRED SHOWING o Lawful vantage point

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o Right of access o Incriminating character immediately apparent Horton v. California When executing a search warrant for robbery proceeds in the Ds house, the police found weapons and stolen property but no proceeds. The officer testified that although these items were not listed in the warrant, he hoped to find other evidence related to the robbery crime.

Criminal Procedure

Police lawfully entered Ds apartment when they had exigent circumstances that arose after a shot fired through the floor of the apartment struck a man in the apartment below. While searching for and finding weapons, an officer noticed expensive stereo equipment whose location in the seedy apartment was suspicious, and moved it slightly to record the serial numbers. Chapter 5. The Balancing Approach to Fourth Amendment Reasonableness Introductory Note Either the government or the individual is claiming that the probable cause and warrant norms are not appropriate measures of the reasonableness of the government conduct at issue. Each of these claims is rooted in an effort to balance societys interests against those of the individual. In most cases, the government contends that the balance justifies diminution of the normal standards of reasonableness. In a few, individuals contend that balancing analysis should lead to elevation of the normal standards. A. Stops, Frisks, and the Right to be Secure in Ones Person, House, and Effects 1. The Constitutional Doctrine and Its Theoretical Underpinnings I. Fourth Amendment applicable? B. Did a search/seizure take place? Searches o Katz 2-part test (subjective/objective EOP) o What kind of search? Evidentiary searches: probable cause and warrant required unless applicable exception (general rule) Seizures o Nature/Degree of Intrusion? Custodial arrest: probable cause required (general rule) valid warrant? probable cause determination? otherwise reasonable? Camara v. United Statesthere can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. Seizure Continuum Arizona v. Hicks Encounter Terry Stop Arrest |-------------------------------------------------------------|-------------------------------------------------------------| Nothing needed Reasonable Suspicion Probable Cause

As long as the search of a persons dwelling complies with the probable cause and warrant or exigency requirements, then the seizure of incriminating items is permitted under the plain view doctrine, even if the discovery of the items is not inadvertent. Inadvertence is not a necessary condition to plain view seizures. As long as a police officer . . . had a prior justification for an intrusion in the course of which he came . . .across a piece of evidence incriminating the accused and so long as the scope of the search is not enlarged in the slightest, it is constitutional. The plain view exception to the warrant or exigency requirement allows police to seize objects only when it is immediately apparent, upon seeing them, that they have an incriminating character. The plain view exception may not be used to make an exploratory search until something incriminating emerges. The seizure here violated the 4th AMD because even a slight movement disqualifies it from being a plain view seizure.

Did a seizure occur? If no: 4th AMD not implicated. If yes: 1. Were the officers actions justified at the inception; AND 2. Were the officers actions reasonably related in scope to the circumstances that justified the interference in the first place? Terry v. Ohio Officer saw D and another man walking back and forth a dozen times in front of a store and looking in the window. Officer suspected that they were planning a robbery. Officer conducted a pat-down

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frisk search for weapons of Ds outer clothing. The officer touched a hard object that felt like a weapon, and pulled it out. It was a gun, which was admitted at Ds trial for a firearms crime. Is it a search or seizure for a police officer to stop a person to ask questions about criminal activity, and to conduct a pat-down frisk search of the persons outer clothing? o Even though a stop involves a detention that does not rise to the level of an arrest, it is a Fourth Amendment seizure of the person. Likewise, even though a frisk does not rise to the level of a full search of the person, it is a Fourth Amendment search. Judicial review of each type of police conduct is required, given the significant intrusion upon the privacy interest of a person who is stopped for questioning or stopped and frisked. Under what circumstances may police conduct a lawful stop and frisk under the Fourth Amendment? o Where a policeman reasonably believes criminal activity is afoot, the officer may stop the person and ask questions in order to dispel or confirm his or her suspicions. If the officer has reasonable suspicion to believe that the person is armed and dangerous, the officer may conduct a pat-down search of the outer clothing of the person and pull out an object that feels like a weapon. Like the probable cause requirement, the reasonable suspicion requirements must be assessed on a case-by-case basis. This standard of suspicion that is lower than probable cause is justified because a stop is less intrusive than an arrest, and a frisk is less intrusive than a full search. The governments need for police stops is crime prevention etc.; the purpose of a frisk is to insure an officers safety during a stop. Sibron v. New york (You know what Im after. D reached in pocket, cop reached in pocket.) Must have reasonable grounds to believe the person was armed and dangerous. Also, reaching into the pocket exceeded the limited bounds of the patdown authorized by terry. Adams v. Williams Court cast doubt on the view that a frisk can only be justified by showing that there is a need for immediate action to prevent a violent crime or some other imminent harm. It is Permissible under Terry to stop and frisk an individual suspected of possessing narcotics and a concealed weapon. Dunaway v. New York D was a murder suspect, and one detective While police may stop and frisk a suspect only ordered others to bring him in to the police reasonable suspicion, the detention and station. D was not told that he was under interrogation of a person at the police station is arrest, but police testified that he would have indistinguishable from a traditional arrest, and such been restrained if he had tried to leave. D was a de facto arrest requires probable cause because it interrogated without a warrant or probable exceeds the scope of a lawful stop under Terry. cause. Officer is authorized to stop and frisk where there exists reasonable suspicion (i.e. specific and articulable facts which, when taken together, would warrant a person of reasonable caution in the belief) that: o 1.) A person has committed, is committing, or is about to commit a crime; AND o 2.) The persons with whom he is dealing may be armed and presently dangerous Technical Arrests & Full-blown Searches Stops and Frisks Society/Government: Detecting, proving, and preventing crime. Discovering evidence, contraband, etc. Apprehending offenders. vs. Individual: Deprivation of liberty, property, privacy, dignity. 2. Seizures of Persons United States v. Mendenhall Federal agents approached D, after observing her for some time after she disembarked from a Los Angeles plane arriving in Detroit. The agents informed her that they were from the D. E. A., and asked to see her ID and ticket. The names on Ds drivers license and ticket did not match; D appeared shaken and nervous. An agent asked D if she would come to the airport D.E.A. office and she did so; there she was asked whether she would consent to a search of her purse, which she did. The ticket D used to fly to California was found in her purse, and it was in a third name. D then consented to a search of her person (strip search), and the heroin that was found was admitted at Ds trial for a drug crime. When is a person seized under the Fourth Amendment for purposes of a stop under Terry v. Ohio? o A police officer makes a Fourth Amendment seizure of a person for a stop under Terry v. Ohio only by means of physical force or show of authority so as to restrain the persons liberty; a seizure occurs only if a reasonable person Society/Government: Effective crime prevention and detention. Officer safety. vs. Individual: Deprivation of liberty, property, privacy, and dignity.

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would not feel free to leave during an encounter with the police. Circumstances that point to a seizure include: 1) threatening presence of several officers; 2) display of a weapon; 3) physical touching of person; 4) language or tone of voice indicating compliance is compelled. On the facts, was the D seized by the DEA agents so that reasonable suspicion was needed to ask to see Ds ticket and identification? o D was not seized under the totality of circumstances because: 1) the encounter was in public; 2) agents had no uniforms or weapons; 3) agents identified themselves; 4) they asked but did not demand to see the ticket and identification. The D has no reason to believe that she was not free to end the conversation and leave the scene without answering the agents questions; her acquiescence in providing the ticket and identification and her answers about them were voluntary. Ds consent to the search of her purse and her person satisfied Fourth Amendment standards of voluntariness. Concurrence: in part, and in judgment: (Powell, J.) Assuming without deciding that the initial actions of the agents did constitute a seizure, it is clear that reasonable suspicion for a stop existed under a totality of circumstances before they approached D. One element of that totality was reliance on a drug courier profile; also D was nervous and sought to evade detection by waiting to be the last person off the airplane, walking slowly, scanning the gate area, claiming no baggage, and changing her ticket to her next destination to another airline. Florida v. Royer No seizure occurred when officers approached a suspect in an airport concourse and asked for and examined his airline ticket and drivers license. The suspect was seized, however, when the officers subsequently identified themselves as narcotics agents, told him he was suspected of narcotics transportation, and asked him to accompany them to a police room, while retaining his ticket and license and not indicating that he was free to leave. (see below) Michigan v. Chesternut A man standing on a corner turned and ran as The mere following of the suspect in a marked a marked police car approached. The car police car did not amount to a seizure. It was turned the corner and followed, accelerating important that the police had not used sirens or to catch up and driving alongside the suspect flashers, had not commanded the suspect to stop, for a short distance. had not displayed weapons, and had not used the car to block or control the suspects movements. Florida v. Bostick Drug sweep program to board buses and In determining whether a police encounter on a bus ask passengers to search bags; police did not is a search or seizure, a court must consider all have reasonable suspicion to stop or detain the the circumstances surrounding the encounter and passengers, and justified their questions as decide whether the police conduct would have being akin to an encounter that is not a communicated to a reasonable person that the search or seizure. D was questioned on a person was not free to terminate the encounter. bus by officers who asked to see his ticket and No seizure occurs when police ask questions of an identification; the D provided both documents individual, ask to examine the individuals and they were immediately returned. The identification, and request consent to search his or officers then sought Ds consent to search his her luggage so long as the officers do not convey bag and informed him of the right to refuse a message that compliance with their requests is consent. The D gave consent, and drugs were required. found in his bags. United States v. Drayton Three police officers conducted a suspicionless bus sweep when the driver got off the bus D and Brown sat next to each other and Brown consented to a request to a search of their shared bag, which revealed no drugs. Brown also consented to a request for a pat-down search of his person, which revealed hard objects that turned out to be plastic bundles of cocaine taped to his boxer shorts. Brown was arrested and led away. Then D consented to a request for a pat down search, and the same hard objects were discovered. On the facts, would a reasonable person feel free to decline the requests of the officer or otherwise terminate the encounter, so that no reasonable suspicion was required because no Fourth Amendment seizure occurred during the questioning? o The bus encounter was consensual because there was nothing coercive or confrontational about the officers conduct, and because it would have been consensual if it had occurred on the street. There was no touching or show of force, no blocking of exits, and no threats or commands. The acts of showing a badge and carrying firearms have little weight under Delgado, and the arrest of Brown did not make the police encounter with the D less consensual. On the facts, was the consent of each D to the pat-down search voluntary under Fourth Amendment standards? o The officer received voluntary consent to the pat-down searches of each D; it was not necessary to warn the Ds of the right to refuse consent, and when the officer asked for permission, he did not indicate that consent was required. California v. Hodari D. Police spotted a group of youths acting To constitute a seizure, either physical force must suspiciously. As the police car approached, the be exerted over the suspect or, absent force, there youths ran away. The police gave chase and must be a submission by the D to the assertion of just before an officer caught up to D, D threw authority. An escaping suspect who fails to halt away a rock of crack cocaine. Then the officer when chased has not been seized until physically tackled and arrested D, finding cash and a taken into custody. Any relinquishment of

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pager on his person.

Criminal Procedure

evidence prior to the seizure is voluntary and not subject to 4th AMD restrictions. th Brower v. County of Inyo 4 AMD seizures occur only when there is a governmental termination of freedom of movement through means intentionally applied. Brendlin v. California All occupants of a car are "seized" for purposes of the 4th AMD during a traffic stop, not just the driver. A person is "seized" for purposes of the Fourth Amendment when physical force or a show of authority terminates or restrains his freedom of movement. If the police's intent to restrain an individual is unclear, or if an individual's submission to a show of authority takes the form of passive acquiescence, a seizure does not occur unless a reasonable person would not feel free to leave in light of all the circumstances. If, however, the person has no desire to leave for reasons unrelated to the traffic stop, there is no seizure. 3. The Showing Needed to Stop and Frisk Illinois v. Wardlow Reasonable suspicion existed for the stop because D was in a high crime area, and because headlong flight is the consummate act of evasion, and suggestive of wrongdoing. Even though there are innocent reasons for flight from police, that does not disqualify the Ds ambiguous flight from being suspicious enough to justify a frisk. A failure to cooperate with police is not sufficient to create reasonable suspicion but flight is not equivalent to such failure. Nervous, evasive behavior and location in a high crime area are relevant factors in determining the reasonable suspicion necessary for a Terry stop under the Fourth Amendment. Alabama v. White The police received an anonymous telephone tip that D would leave a particular apartment at a particular time, and drive in a particular car to a particular motel, carrying cocaine in a brown attach case. The police observed the D leave that apartment close to the predicted time, carrying nothing in her hands; they followed her as she drove on the most direct route to the motel. The police stopped her car just short of the motel, asked for and received consent to search the car, discovered the attach case, and found marijuana in the case and cocaine in the Ds purse. The drugs were admitted into evidence at Ds trial for drug crimes. May an anonymous tip provide reasonable suspicion for a stop under Terry? o An anonymous tip may provide reasonable suspicion as part of a totality of circumstances like those used to establish probable cause under Illinois v. Gates. Since reasonable suspicion is a lower standard than probable cause, it can arise from information that is less reliable, such as an anonymous tip that is less detailed and less completely corroborated than a tip that provides probable cause. On the facts, did police have reasonable suspicion that the D was engaged in criminal activity, so that they made a lawful car stop? o There was reasonable suspicion for the car stop because police corroboration provided a substitute for veracity; the tips prediction of the Ds time of departure and method of travel was corroborated, and the Ds destination was substantially corroborated. As a substitute for basis, the tip provided a range of details as to future actions of third parties ordinarily not easily predicted, namely Ds itinerary, which suggested that the tipster also was privy to reliable inside information about the Ds criminal activity. Florida v. J.L. Police received a telephone tip that a young, The tip about the Ds gun possession did not African-American man, wearing a plaid shirt, supply reasonable suspicion for the frisk, because could be found at a particular bus stop, it did not reveal the tipsters basis of knowledge or carrying a gun. A few minutes later, police veracity, and did not provide specific indicia of arrived at the bus stop and saw three Africanreliability, such as a correct forecast of the Ds American men, one of whom wore a plaid not easily predicted movements. The police shirt. The police frisked the man in the plaid corroboration only showed that the tipster could shirt and discovered a gun. identify a particular person, not that the tipster had knowledge of concealed criminal activity. Reid v. Georgia Officers could not as a matter of law, have reasonably suspected an individual of criminal activity on the basis of the facts that (1) he had arrived on a flight from Fort Lauderdale, Florida (alleged by the narcotics agent to be a principal place of origin of cocaine sold in the U.S.); (2) he had arrived in the early morning, when law enforcement activity is diminished; and (3) he and his companion appeared to be trying to conceal the fact that they were traveling together and had no luggage other than their shoulder bags. All but one of the circumstances described a very large category of presumably A police caravan passed through a neighborhood of expected criminal activity, known for drug crimes, looking for lookouts and customers. D was standing in front of a building, holding an opaque bag. An officer saw the D look in the direction of his police car and then run away. The officer pursued the D by car, and when the D was cornered, the officer got out and frisked the D and his bag.

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innocent travelers, who would be subject to virtually random seizures Officers observed that the suspect was young, casually dressed, pale and nervous. He had been looking around at other persons in the airport, had paid cash for a one-way ticket, and had checked his suitcases by placing on each an identification tag bearing only a false name and the name of the airport to which he was traveling And was traveling under an assumed name (see above). Terry seizure was justified. United States v. Sokolow Agents stopped a suspect after becoming aware that: (1) he had paid $2100 for two round-trip tickets from a roll of $20 bills; (2) he was traveling under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for drugs; (4) he had stayed in Miami only 48 hours, even though a round-trip from his point of origin, Honolulu, to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. This gave rise to a reasonable suspicion of narcotics transportation. United States v. Arvizu Reemphasized the importance of considering the totality of the circumstances of each case in making reasonable suspicion determinations. Facts that are innocent when viewed in isolation may well be suspicious when viewed together and observed that officers may draw on their own experience and specialized training to make inferences that might well elude and untrained person. United States v. Hensley Whether terry detentions are permissible to Such detentions are constitutional if based upon a investigate completed criminal activity as reasonable suspicion that a person was involved or opposed to criminal activity that is imminent is wanted in connection with a completed felony. or ongoing. Was not decided if it would be ok for all past crimes, however serious. White and J.L.Relationship between anonymous tips and reasonable suspicion. Mendenhall, Reid, Royer, and Sokolowreliance, at least in part, upon drug courier profilescompilations of the characteristics of drug traffickers developed by law enforcement agencies. o Judges must make idependant evaluations of reasonable suspicion showings. They should not simply defer to and officers reliance on a drug courier profile or some combination of factors set forth in a profile. o The fact that factors may be set forth in a profile does not somehow detract from their evidentiary significance as seen by a trained agent. o The factors found in a profile might well provide a judge with objective bases for finding reasonable suspicion. 4. The Permissible Scope of Stops, Frisks, and Sweeps Other Terry Contexts o Terry stops of personal effects - Place o Terry frisks of persons - Dickerson o Terry frisks of cars - Long o Terry frisks/sweeps of homes - Buie Hayes v. Florida D was taken to the police station against his If the police do not have probable cause, the 4th will and fingerprinted; at the time, the police AMD prohibits them from forcibly transporting a had not obtained a warrant and did not have person to the police station to be detained, even probable cause to arrest him. briefly, for investigative purposes. It is possible, however, that under some circumstances the police may be permitted to briefly detain a person in the field for the purposes of fingerprinting if they have a reasonable suspicion that the suspect committed a crime. United States v. Sharpe A DEA agent was patrolling an area known for drug trafficking in an unmarked car. The DEA agent saw a blue pick up truck with an attached camper shell driving along side a blue Pontiac on a highway. The Respondent, Savage was driving the pickup and another Respondent, Sharpe was driving the Pontiac. The agent thought the truck was heavily loaded. Agent followed the two vehicles for twenty minutes, observing them while speeding etc. The agent then decided to make an investigative stop. After the cars were stopped, the agent smelled marijuana coming from the pick up truck. Agent opened the rear of the camper and found multiple bales of marijuana. About 30 or 40 minutes passed between the time the Pontiac was stopped and when the arrests actually occurred. The reasonableness of the duration of any investigative Terry stop will depend on an assessment of the police diligence in pursuing a means of investigation likely to confirm or dispel their suspicion quickly. If police are acting in a swiftly developing situation, and if they did not act unreasonably in failing to recognize or pursue an alternative other than detention of the D, a court will consider these factors as relevant to the duration inquiry. Courts should not adopt a rigid time limit, such as 20 minutes, as the maximum for all Terry stops. Respondents actions (evasive) were a cause for prolonging an encounter. United States v. Montoya Customs agents had reasonable suspicion that D was concealing narcotics filled balloons in her de Hernandez alimentary canal. 16-hour detention waiting for bowel movement. Florida v. Royer

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Not unreasonably long. The court relied on the facts: (1) that the detention had occurred at the international border, where the 4th AMD demands are considerably less stringent; (2) that alimentary canal smuggling, by nature, cannot be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops; (3) that, because the defendant refused to submit to and X-ray, the only alternatives were a lengthy detention or the release of a person reasonably suspected of narcotics smuggling; and (4) that defendants own heroic efforts to resist bowel movement extended the period of detention. The exceptionally lengthy detention was necessary to either verify or dispel the agents reasonable suspicion. In a Terry detention, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officers suspicion in a short period of time. The reasonableness of an officers decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Royer statement (above) was directed at the length of the investigative stop, not at whether the police had less intrusive means to verify their suspicions before stopping the suspect. Not unreasonable for officers to require a suspect who is being lawfully detained to identify himself. A terry stop must be justified at its inception and reasonably related in scope to the circumstances, which justified the initial stop. Under these principals, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. As long as a police request for a persons name is reasonably related to circumstances justifying a lawful Terry stop based on reasonable suspicion of criminal activity, the refusal to provide ones name may be made a criminal offense. It is reasonable under the 4th AMD for a state to use the criminal law to require a person to disclose a name during a Terry stop, because police need the name in order to serve important governmental interests: determining whether a person is wanted for a crime, or has a history of violence of mental illness, or is involved in a crime under investigation. However, when a name is sought by police during a pre-stop encounter, it raises no 4th AMD issue. Detention of a home occupant during Such detentions of home occupants are execution of a search warrant for weapons, constitutional, if properly limited. An officer who evidence of gang membership, and other items. has properly detained a suspect on reasonable Separate questioning about immigration suspicion of criminal activity does not need status. additional justification to ask questions about an unrelated topic if those questions do not increase the length of the justified detention. Miami Agents decided not to search Ds luggage b/c his flight was about to depart. They called the NY agents, who waited for D. Agents took luggage to another airport and subjected them to canine sniff tests 90 mins later. They retained the luggage until Monday morning from Fri. night. Whether, as the lower courts had assumed, the framework of Terry v. Ohio, under which a limited detention of a person can be justified in the face of reasonable suspicion, can apply to the temporary seizure of a person's luggage? Is a dog sniff a search? When government agents have reason to suspect (but not probable cause to believe) that, for instance, a traveler's luggage contains narcotics, it has a substantial interest in confirming or denying that suspicion. In order to dispel that suspicion, a brief seizure of the luggage could be justified. This brief seizure could not encompass a full-blown "search," just as a Terry stop may not increase in seriousness to a full-blown arrest, unless probable cause to perform the search arose during the brief detention. The sniff does not require opening the luggage; it does not expose things that are not contraband to public view. The sniff is thus far more limited than the typical search. Moreover, the sniff merely reveals the presence or absence of narcotics. Thus, it does not constitute a "search" under the 4th AMD. Even though the DEA agents did not "search" Ds luggage when they subjected it to the dog sniff, their seizure of the luggage was unreasonable because it exceeded the limits of a Terrytype investigative stop. The length of time the agents had possession of Place's luggage was too great90 minutes before the dog sniff had been conducted. Also, the agents knew what time Place's plane was scheduled to land and thus had ample time to arrange their investigation accordingly, so that taking Ds luggage from LaGuardia to Kennedy airports should not have been necessary. Thus, the seizure of Place's luggage was unreasonable in this case. D was questioned by police after driving his car off a road and into a shallow ditch. Officers said he acted erratically and that he, "appeared to be under the influence of something." (walked towards the open door) Noticing a hunting knife on the floor of the car, they conducted a "Terry" protective patdown, but they turned up no weapons. They then conducted a "protective search" of the car with

Florida v. Royer United States v. Sokolow

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County

Muehler v. Mena

United States v. Place

Michigan v. Long

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the same justification: searching for weapons. Inside the car, police found an exposed bag of marijuana. In the trunk they found approximately 75 pounds more. The protective search of the passenger compartment was reasonable under principles that the Supreme Court created in Terry v. Ohio. In Terry, the Court held that there was a valid protective search for weapons in the absence of probable cause to arrest because it was unreasonable to deny a police officer the right to neutralize the threat of physical harm, when the officer possesses a reasonable suspicion that an individual is armed and dangerous. In Terry, the Court only permitted a search of the person. In this case, the Court holds that the principles outlined in Terry also apply to the passenger compartment of a vehicle if the officer has a reasonable suspicion that a person may be armed and dangerous. Pennsylvania v. Mimms Whether it is permissible for an officer It is reasonable because of a balance of interests. routinely to require a driver to get out of a Officer safety is legit and weighty and the vehicle during a lawful stop for a traffic incremental intrusion is de minimis and a mere violation? inconvenience. Maryland v. Wilson Whether officers could require a passenger to Public interestOfficer safety. Personal liberty get out of the vehicle. already stopped and any additional intrusion is minimal. An officer making a traffic stop may order passengers to get out of the car pending completion of the stop. Arizona v. Johnson Police stopped a vehicle because its registration had been suspended. D was a passenger. Officer believed D might have a weapon. Asked D to get out of car and performed a frisk. Can police frisk passengers? To frisk an individual who is subject of a lawful investigatory stop, a police officer must reasonably suspect that the person stopped is armed and dangerous. A seizure occurs when the police stop a car for a traffic violation, and the seizure continues and is usually reasonable until the police inform the cars occupants that theyre free to leave. In addition, questioning by the police about a matter unrelated to the traffic stop does not make the stop unlawful, as long as those inquiries do not measurably extend the duration of the stop. Here, the traffic stop communicated to Johnson that he was not free to leave, and nothing prior to the pat down indicated otherwise. The police were not required to give Johnson the opportunity to leave without ensuring that he was not armed and dangerous. Minnesota v. Dickerson D leaving crack house, eye contact with police, In order to pull out an item that does not feel like a changes direction. D was subjected to a lawful weapon during a lawful Terry frisk, an officer must pat-down frisk of outer clothing, based a satisfy the plain feel requirement of knowing reasonable suspicion that he was armed and immediately at first touch that the item is some dangerous. The officer felt a lump in Ds type of contraband. If the officer manipulates or jacket, and after the officer probed the lump squeezes the item, this conduct goes beyond the and squeezed it with his fingers, he determined scope of the plain feel doctrine. Here the that it was a rock of crack cocaine. When the officers manipulation requires that the cocaine officer pulled the lump out of the jacket, he must be suppressed. discovered cocaine. The plain feel doctrine allows the police to use their sense of touch in carrying out their duties. It must be stressed that plain feel is not a separate exception to the Fourth Amendment, but rather only becomes applicable in the context of plain view. Thus, in upholding the plain feel doctrine, the Supreme Court analogized it to plain view, and determined the validity of the seizure of the crack cocaine in Dickerson by analyzing whether the requirements of plain view were met. Specifically, (1) was the officer in a lawful position to view the object, and (2) was the object's incriminating nature was immediately apparent. Maryland v. Buie After arresting the D, a police officer entered The 4th AMD permits a properly limited protective Ds basement to perform a protective sweep. sweep in conjunction with an in-home arrest when While performing the protective sweep, the the searching officer possesses a reasonable belief officer discovered evidence that aided in Ds based on specific and articulable facts that the area conviction. D was in basement. Police entered to be swept harbors an individual posing a danger the basement incase someone else was down to those on the arrest scene. Not a full search of the there. premises but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. B. Special Balancing Contexts 1. School Searches New Jersey v. T.L.O. Teacher at a high school discovered two girls The legality of the search of a student should

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smoking in a laboratory. One girl admitted she depend simply on the reasonableness, under all the was smoking, which violated a school rule. D circumstances, of a search. Under ordinary claimed she was not smoking and as such did circumstances, a search of a student by a teacher or not break the rule. The assistant vice-principal other school official will be justified at its took the student into his private office and inception when there are reasonable grounds for demanded to search her purse. While looking suspecting that the search will turn up evidence for cigarettes, he found a package of cigarette that the student has violated or is violating either rolling papers. He continued searching the the law or the rules of the school. Such a search purse and found a small amount of marijuana will be permissible in its scope when the measures and a pipe, a number of empty plastic bags adopted are reasonably related to the objectives of and a substantial amount of one dollar bills the search and not excessively intrusive in light of and an index card with the names of various the age and sex of the student and the nature of the people who owed the student money. infraction. (reasonable plain view) Strip search of a 13 year old student by school officials looking for forbidden prescription and over the counter drugs. Under T.L.O., a reasonable suspicion that a student has violated such a rule justifies a school search. Reasonable suspicion, a lesser standard than probable cause, can be described as a moderate chance of finding evidence of wrongdoing. In addition, T.L.O. declared it necessary that the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place. The scope will be permissible . . . when it is not excessively intrusive in light of the age and sex of the student and the nature of the infraction. the concern with limiting a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

Stafford Unified School District #1 v. Redding

2. Checkpoints Constitutionality of Checkpoints o Purpose of checkpoint? o Degree of intrusion? o Required showing? o Competing interests? Reasonable? Michigan Department of The constitutionality of a sobriety check point The 4th AMD requires a three-prong balancing test State Police v. Sitz was at issue. All vehicles passing through a in order to assess the reasonableness of the sobriety checkpoint would be stopped and their drivers checkpoints.The checkpoint program is consistent briefly examined for signs of intoxication. with the 4th AMD because the balance of the Should the field tests and the officers States interest in preventing drunken driving, the observations suggest that the driver was extent to which this system can reasonably be said intoxicated, an arrest would be made. All other to advance that interest, and the degree of intrusion drivers would be permitted to resume their upon individual motorists who are briefly stopped, journey immediately. weighs in favor of the state program. Brown v. Texas Balancing Test o Look at: (1) the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty." City of Indianapolis v. The city designed a checkpoint program with the primary purpose of intercepting drugs. After Edmond stopping a predetermined number of vehicles at a checkpoint, an officer would ask the driver for license and registration, look for signs of driver impairment, conduct an open view search of the interior of the car from the outside, and direct a trained narcotics-detection dog to sniff the exterior of the car. Does a suspicionless checkpoint violate the 4th AMD when its primary purpose is to detect evidence of a drug crime? Where the primary purpose of a suspicionless checkpoint is to detect ordinary criminal wrongdoing by a motorist, that method of law enforcement cannot be sanctioned by the Fourth Amendment. Otherwise, there is no principled stopping point for the type of crime that may justify the use of a roadblock, and roadblocks should not be allowed to become a routine part of American life. If the primary purpose of a roadblock is some emergency not related to ordinary criminal prosecution, such as locating a fugitive terrorist, then judicial approval of such a roadblock would not inevitably lead to the approval of checkpoints for all felons. However, the mere use of the narcotics-detection dog at a checkpoint does not transform the seizure of the car stop into a search under Place. It is the vehicle stop at a roadblock that effects a seizure. (likey vs. may be...) Illinois v. Lidster One week after a hit and run accident occurred, police set up a checkpoint at the location of the accident, which operated at the same time of night as the accident. Police stopped each car at the

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checkpoint, asked occupants for information about the accident, and gave them a flyer about how to assist the police investigation. The D was arrested after he swerved his car, nearly hit a checkpoint officer, and failed a sobriety test. A suspicionless information-seeking checkpoint does not violate the Fourth Amendment because approval of such a checkpoint is not likely to lead to a proliferation of checkpoints to detect crimes by motorists; it is less anxiety provoking than other checkpoints, and analogous to the police solicitation of pedestrians for assistance in investigations. Court must judge the reasonableness of the checkpoint or its constitutionality on the basis of individual circumstances. The reasonableness of the checkpoint was established by several factors: 1) police were investigating a specific, known crime; 2) the crime was serious as it resulted in a human death; 3) police tailored the checkpoint so that it occurred soon after the crime, in the same location and at the same time of night; 4) the stops were brief; 5) all cars were stopped systematically to eliminate police discretion.

3. Drug Testing Constitutionality of Drug Testing Programs o Who is tested? When? o Degree/character of intrusion? Blood/urine/breath? Privacy expectation? o Special needs justification? Compelling/important government purpose? Would requirement of individualized suspicion frustrate the programs objective? Evidence of existing problem? o Reasonable? Why? Why not? To be reasonable under the 4th AMD, a search ordinarily must be based on individualized suspicion of wrongdoing. But particularized exceptions to the main rule are sometimes warranted based on special needs beyond the normal need for law enforcement. When such special needsconcerns other than crime detectionare alleged in justification of a 4th AMD intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties. The reasonableness of searches and seizures depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. Montoya de Hernandez The permissibility of a particular practice is judged by balancing its intrusion on the individuals 4 th AMD interests against its promotion of legitimate governmental interests. Prouse; Martinez-Fuerte In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. Skinner Skinner v. Railway Labor The Federal Railroad Administration enacted regulations that required private railroads to require Executives Association their employees to undergo blood and urine tests for drug use if they were involved in train accidents, and also authorized tests for employees who violate safety rules. The drug test regulation is reasonable because it serves a special need of the government that is unrelated to traditional law enforcement needs. The requirement of a warrant or individualized suspicion would frustrate the compelling government interest in detecting drug use that threatens the safety of the traveling public, given the record that shows the frequency of drug use as a factor in railway accidents with fatalities and injuries. The mandatory drug tests serve a deterrent purpose; they are necessary because the impairment of employees because of drug use cannot be detected readily through reliance on individualized attention to their conduct. The history of drug and alcohol use in the railway industry led to the promulgation of the drug test regulations. National Treasury The Court relied on Skinner in upholding suspicionless urine tests to uncover drug use by customs Employees Union v. Von service employees who qualify for positions as officers who either have responsibility for drug Raab interdiction or carry firearms. The Court found that the tests were related to a compelling special need to prevent the promotion of drug users to these sensitive positions. Dissent (Scalia): concerned with the complete lack of evidence of a drug abuse problem among the Customs employees. Veronia School District 47J School board policy that required high school The drug testing program is a reasonable means of v. Acton and grade school students who wished to furthering a compelling state interest in deterring participate in interscholastic athletics to student drug use under the special needs theory, consent to random urinalysis drug testing based on balancing a variety of factors: 1) student because of concerns that some athletes were athletes have a reduced expectation of privacy; 2) the source of a drug problem in the school the government interest in deterring student drug district, and that drug use could cause sports use is compelling; 3) the documented problem of injuries. drug use resembles that in Skinner; and 4) the efficacy of testing role model athletes does not have the practical difficulties of other methods,

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such as training teachers to identify individual drug-user students. A school district adopted a mandatory drug test policy for random suspicionless testing of all middle and high school students who want to participate in extra-curricular activities. The drug testing program is a reasonable means of furthering an important state interest in deterring student drug use under the special needs theory based on these factors: 1) students who participate in competitive extra-curricular activities are similar to student athletes with regard to reduced expectations of privacy; 2) the only consequence of a positive test result is the loss of the right to participate in such activities; 3) some evidence of drug use in the school district is in the record (although not necessary). A Georgia statute required that designated The drug test requirement does not fit the category candidates for state office must certify that of permissible suspicionless searches under the 4th they have taken and passed a drug test. Is the AMD because the state interest is not substantial; drug test requirement for candidates supported the legislatures concerns are hypothetical that the by a substantial state interest that outweighs drug tests are necessary in order to deter drug use, the privacy interests of the candidates, as prevent the loss of public trust in officials, and required for a special needs exception to the jeopardize anti-drug enforcement efforts. Ordinary Fourth Amendment? law enforcement efforts are adequate to apprehend drug-using candidates and officials. The state need for drug tests here is only symbolic. Based on an increase in the use of cocaine by Where the purpose for drug testing is related to patients receiving prenatal treatment, a public criminal law enforcement, and where law hospital cooperated with the city officials and enforcement officials are involved in designing and police in devising a non-consensual drug implementing a drug testing program, that testing testing system to make it possible to prosecute cannot be justified under the special need theory. drug-using patients. Patients who tested No balancing of privacy interests with the positive received a letter threatening them with governments need for drug tests is appropriate, prosecution if they tested positive again and and the standard 4th AMD requirements of a failed to enroll in substance abuse programs. warrant and probable cause must be satisfied by officials.

Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls

Chandler v. Miller

Ferguson v. City of Charleston

4. Border Searches United States v. FloresMontano

D drove his car to a point of entry into the U. S. and when a customs inspector tapped on the gas tank, it sounded solid; the Ds car was seized and the tank removed and opened in 30 minutes. Marijuana bricks found inside. The border search exception applies to a suspicionless removal and inspection of a cars gas tank at the border. One purpose of the border exception for routine searches and seizures is to prevent the introduction of contraband into the country, and gas tank drug seizures accounted for 25% of seizures at California points of entry during the past five years. A persons expectation of privacy is lessened at the border and the removal of a gas tank takes little time and causes no property damage. United States v. MartinezRoutine stops for brief questioning conducted at near-border permanent checkpoints may be made in Fuerte (cited in many cases) the absence of any individualized suspicion and need not be authorized by warrant. The checkpoint stops are justified by the strong government interest in controlling the immigration of illegal aliens; the brief nature of the questioning reveals the minimal nature of the intrusion. The checkpoints are clearly marked with highway signs so that no one is surprised when they pass through them. Chapter 7: Due Process of Law and Confessions Introductory Note III. Exceptions to the Warrant Requirement? B. Did the police have valid consent to search? o Voluntary? Totality of the circumstances Knowledge of right to refuse Level of intelligence; schooling Coercive atmosphere/Custody Coerced Confessions were excluded at common law Brown v. Missconvictions overturned b/c Ds were whipped until confession Cant be based entirely on untrustworthiness 1936-1964Due process was the only basis on which state defendants incriminating statements were found unconstitutional. Mid 1960sCourt held that both the 5th AMD privilege against self incrimination and the 6th AMD right to counsel also governed admissibility. o Due process was not completely displaced Relationship Between Due Process and Miranda

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o

Criminal Procedure

In some contexts, a defendant will be able to establish that an incriminating statement must be excluded on the basis of the due process cases even though it was not obtained in violation of Miranda. o Even if it is established that a statement has been obtained in violation of Miranda, determining whether the statement would be admissible under the due process cases will often have important practical consequences. The exclusionary rule applied to a confession that is determined to be in violation of due process is much stricter than the one applied to a confession that is simply determined to be in violation of Miranda. Ashcraft v. Tennessee D was questioned for more than 36 hours without a break for sleep or rest by a chain of experienced officers, resulting in a confession and conviction of murder and accessory before the fact. A confession obtained after interrogating a subject for 36 straight hours without rest will be held to have been made involuntarily, and thus a denial of due process of law under the 14th AMD. The confessions obtained in this case were made involuntarily under the totality of the circumstances test used in evaluating due process violation claims. He was held for a day and a half straight without sleep or rest, or the ability to talk with anyone. Mallory v. United States One approach to curbing prolonged interrogations of suspects in custodyHolding: confessions obtained during a period of unnecessary delay in bringing the arrested suspect to a magistrate are automatically inadmissible. United States v. AlvarezThe federal statute governing the admissibility of statements given when there is a delay between Sanchez arrest and arraignment does not apply to statements made by a person who is being held solely on state charges. Accordingly, a Ds confession to United States Secret Service agents was held admissible even though D gave the confession after being arrested and held in custody of local law enforcement officers for nearly 3 days without being arraigned on either state or federal charges. Jackson v. Denno The judge is to resolve evidentiary conflicts and makes her own determination as to whether the confession is voluntary (orthodox procedure) or make the determination and then inform the jury of the definition of a voluntary confession and tell them to consider the evidence only if they find it voluntary (Massachusetts procedure). Spano v. New York D was arrested and questioned for several hours. He refused to answer any questions before speaking to his lawyer, and police ignored his repeated requests to consult counsel. In an effort to extract a confession, the police brought in a police cadet who was Ds friend, who repeatedly begged D to confess in order to save the cadets job and protect his family from economic hardship. D ultimately confessed Due process is violated where under the totality of the circumstances, a confession is involuntary; where a defendants will is overborne by official pressure, fatigue, and deception, a resultant confession is involuntary. On the facts, D was questioned for many hours, using deceptive strategies, and ignoring the Ds repeated requests for counsel; Ds vulnerability as a foreign born person of limited education also contributed to the Due Process violation. Over 8 hours of interrogation. Mincey v. Arizona D was interrogated in custody in a hospital, Under the totality of circumstances, the Ds Due seriously wounded, debilitated and helpless, in Process rights were violated. The undisputed pain and shock, barely conscious, and evidence makes clear that D wanted not to answer encumbered by needles, tubes, and breathing the detective but that, weakened by pain and shock, apparatus. isolated from family, friends and legal counsel, and barely conscious, his will was simply overborne. Colorado v. Connelly D approached a police officer and confessed Coercive police activity is a necessary predicate to to a homicide. He received Miranda warnings, the finding that a confession is not voluntary and waived his rights Then he made within the meaning of Due Process; thus, the incriminating statements to the police. By the mental state of a person who makes incriminating time he spoke to the public defender, D was statements to police will not render a confession suffering from hearing voices and other constitutionally involuntary. symptoms of schizophrenia, thinking that God had told him to confess. Chapter 8: The Privilege Against Self-Incrimination and Confessions Introductory Note A. The Constitutional Basis 5th AMD Privilege Against Self-Incrimination o Warnings Required? o Warnings Given? o Waiver? o Invocation? 6th AMD Right to Counsel 5th/14th AMD Due Process o Voluntary? Miranda v. Arizona The defendants offered incriminating evidence during police interrogations without prior notification

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of their rights under the Fifth Amendment. The Fifth Amendment privilege applies during custodial interrogation and safeguards must be established to protect a persons ability to understand and rely on the privilege in that setting. According to advice found in police interrogation manuals for persuading arrestees to talk, the atmosphere and techniques of incommunicado custodial interrogation is inherently designed to persuade, trick, or cajole a person out of exercising his or her constitutional rights. First, a person must be informed of four rights: 1) the right to remain silent during custodial interrogation; 2) the right to know that anything that a person says to the police may be used against that person in court; 3) the right to know that a person has the right to consult with counsel; 4) the right to know that if the person cannot afford counsel, a lawyer will be appointed for him or her. Second, before interrogation of a person in custody occurs, the police must obtain a voluntary, knowing and intelligent waiver of the rights described in the Miranda warnings. Third, if the person invokes the right to remain silent, or the right to consult counsel, or both, the police have a duty to cut off questioning; either or both of these invocations must be honored in this way, whether the invocation occur before waiver or after waiver and incriminating statements are obtained. These safeguards are necessary because all custodial interrogation creates the potential for compulsion to incriminate oneself that is prohibited by the 5th AMD, and because the 5th AMD requires that confessions must be the product of free choice in order to protect human dignity. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact. The court could not say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. The decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor was it intended to have that effect. Police learned from the victim of an assault that the D ran into a grocery store after committing a crime armed with a gun. Police officers caught up to him in the store and, after discovering the D in possession of an empty gun holster, asked him where the gun was without reading the D Miranda warnings. D revealed the hidden location of the gun, and then received his warnings. The need for police to obtain answers to questions relating to a threat to the public safety outweighs the need to inform an arrestee about the prophylactic Miranda rights protecting the Fifth Amendments privilege against self-incrimination. The single police question about the location of the gun was necessary in order to protect the police and public safety, where the gun was discarded in a supermarket open to the public and might be found by an accomplice, customer or employee. Both the gun and the Ds statement about its location should be admissible at his trial. Public safety does not depend on the motive of the officer. Concurrence: in part, dissent in part: (OConnor, J.) The Ds statement, The gun is over there, should be inadmissible, but the evidence of the gun itself should be admissible. The Courts definition of the exception blurs the clear lines of the Miranda rules and makes them more difficult for police to understand and apply. Miranda is a Prophylactic Rule D did not receive Miranda warnings and Congress cannot overrule a constitutional decision argued that his incriminating statement should by enacting a statute, and Miranda was based on be inadmissible because of a Miranda the 5th AMD. The constitutional basis for Miranda violation. The federal appellate court refused is evidenced by the Courts application of its to suppress the statement on the grounds that doctrine to state courts, and by the reasoning of the Congress overruled Miranda when it enacted Miranda majority. Miranda should not be overruled 18 U.S.C. 3501 in 1968, which regulates the because there is no special justification for doing admissibility of confessions in federal court so, as required by the principle of stare decisis. using Due Process concepts. Miranda law has become embedded in police procedure and national culture; the modern evolution of Miranda doctrine has limited the degree to which it creates barriers to law enforcement. Miranda is a Constitutional Decision. D was interrogated without warnings and The use of compulsive questioning by police, made incriminating statements while his without more, cannot violate the 5th AMD. wounds were being treated, after he was shot Miranda rules are designed to safeguard the 5th by police and sustaining serious injuries. Was AMD right but they do not extend the scope of the

New York v. Quarles

Dickerson v. United States

Chavez v. Martinez

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not prosecuted for a crime.

Criminal Procedure
right itself. The failure to give a Miranda warning was not a completed constitutional violation; a violation of the 5th AMD does not arise until a privileged statement is sought to be introduced at a criminal proceeding. Miranda prophylactic rule

Miranda Warnings Required? o Was the Defendant in custody? o Was the Defendant interrogated? B. Custody Berkemer v. McCarty D was stopped by a police officer for drunk driving, which crime was a misdemeanor. D confessed his guilt to the officer without receiving any Miranda warnings (2 beers and a bunch of weed). Does the 5th AMD require that Miranda warnings be given in misdemeanor cases? Does the roadside questioning of a motorist detained pursuant to a routine traffic stop constitute custodial interrogation? A person who is subjected to custodial interrogation is entitled to Miranda warnings regardless of the severity of the crime. However, one is not entitled to the warnings until custody occurs. Questioning before arrest does not trigger the right to Miranda warnings. Roadside questioning of a person detained during a routine traffic stop does not constitute custodial interrogation per se. Detention for such a stop is presumptively temporary and brief, and the public nature of the stop means that the driver is not entirely at the mercy of the police. These two factors suggest that a routine stop is less police-dominated than the kind of station house interrogations that require warnings. Would a reasonable person in the suspects position feel as if he were in custody? Stansbury v. California Initially, police questioned D as a witness. A police officers subjective and undisclosed view They questioned him without Miranda whether a person being interrogated is a suspect is warnings. D made incriminating statements irrelevant to the assessment of whether the person and police gave him warnings. is in custody. Oregon v. Mathiason; D was a was contacted by a police officer. D When a suspect comes voluntarily to the police Hayes v. Florida voluntarily came to the station, and the officer station in response to an invitation by the police, he told him he was not under arrest. The officer will not necessarily be in custody. did tell D that he was a suspect, and lied to the Hayessuggests that if the suspect is brought to D by telling him that police had discovered his the station by police officers without his consent, fingerprints at the crime scene. The D was he will be in custody within the meaning of questioned about the crime without being read Berkemer. the Miranda warnings. D made incriminating statements. The custody standard is objective. The determination depends on how a reasonable person in the suspects situation would understand his or her situation. One question is whether specific characteristics of a suspect are ever relevant to determining whether he or she is in custody for the purposes of Miranda. Yarborough v. Alvarado 17 year-old boy who was questioned at the Whether a defendant is in custody, and therefore police station and made incriminating entitled to his Miranda rights, should be statements. Trial ct. did not take age into determined by objective criterion and not consideration. Whether a police officer should subjective criteria such as age and criminal history. consider the age and history of a suspect when An interview is not in custody, in terms of determining whether he is in custody and Miranda, and that a defendant should not be treated therefore entitled to his Miranda warnings any differently if they are a juvenile because under the 5th AMD. freedom of movement is objective, rather than subjective. J.D.B. v. North Carolina Officer interrupted the class of D and escorted him to a school conference room, where D was subsequently questioned by the investigator, police officer, and members of the schools administration for 30 to 45 minutes. Prior to the questioning, J.D.B. was neither given Miranda warnings nor an opportunity to speak to his legal guardian. Nor was he informed that he was free to leave the room. Initially D denied any wrongdoing. After being confronted with the stolen camera and after the urging of a school administrator, D confessed to the break-ins. The Court placed emphasis on the fact that age is an objective circumstance and including it in a custody analysis does not place an undue burden on the police. The Court has repeatedly emphasized that the custody analysis is an objective test. 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. Once the scene is set and the players lines and actions are reconstructed, the court must apply an objective test to resolve the

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ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest. The Court wrote that consideration of age involved no consideration of the specific mindset of the individual. Rather, the Court held that age is an objective fact that affects how a reasonable person would perceive his or her freedom to leave.

C. Interrogation Rhode Island v. Innis

The term interrogation under Miranda refers not only to express questioning, but also to any words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect. The D was not interrogated by the officers because the conversation was brief, it was not directed at him, it was not evocative, and the D had no unusual susceptibility to handicapped children. Dissents: InterrogationConscience, humanitarian impulses Illinois v. Perkins Undercover agent posed as Ds cellmate and Where a suspect is unaware that he is speaking to obtained incriminating statements from him, an undercover agent and make voluntary by offering to help D plan a jailbreak and incriminating statements, Miranda warnings are persuading him to describe his involvement in not required. Miranda requires that interrogation a murder. D did not receive Miranda warnings must reflect an extra measure of compulsion from the agents because this would have beyond the fact of custody. A secret-agent destroyed their cover. interrogation lacks a police-dominated atmosphere, and so there is no need for Mirandas remedy. The use of undercover agents is a recognized technique to meet law enforcement needs. * Government may not use an undercover agent to circumvent the 6th AMD right to counsel once a suspect has been charged with a crime. After charges have been filed, the 6th AMD prevents the government from interfering with the accuseds right to counsel. In the instant case, no charges had been filed on the subject of the interrogation, and the 6th AMD precedents are not applicable. Howes v. Fields D was serving time in detention facility when Michigan sheriffs deputies went to the facility to question him about an unrelated offense (allegations of child molestation). Deputies asked prison guards to bring D to conference room. D was not handcuffed and deputies told him he was free to leave and go back to his cell at any time (with prison guard escort). D never told he did not have to speak not given Miranda. When confronted with accusation, D began to yell. Deputy ordered him to sit down and told him, if you dont want to cooperate, you can leave. D made incriminating statements. Mere imprisonment and private questioning about events in the outside world were not sufficient to create a custodial situation for Miranda purposes. Furthermore, the prisoner in this case was not in custody under Miranda because he was told at the outset of the interrogation that he could leave and go back to his cell whenever he wanted and because he was not physically restrained. California v. Prysock Variations from the precise warnings prescribed in Miranda are permissible so long as they reasonably convey the rights included in the original four warnings. Duckworth v. Eagen You have the right to advice and presence of Miranda does not require that attorneys be a lawyer even if you can not afford to hire one. producible on call, but only that the suspect is We have no way of giving a lawyer, but one informed, as here, that he has the right to an will be appointed for you if you wish, if and attorney before and during questioning, and that an when you go to court. attorney would be appointed for him if he could not afford one. Florida v. Powell Right to remain silent etc. You have the Must reasonably convey Although the warnings right to talk to a lawyer before answering any were not the clearest possible formulation of of our questions. Appointed counsel etc. Mirandas right to counsel advisement, they were You have the right to use any of these rights sufficiently comprehensive and comprehensible at any time you want during this interview. when given a commonsense reading. If the Gov. seeks to introduce the incriminating statements against the suspect to prove a crime with which he was already charged when the incriminating statements took place, the 6th AMD right to counsel and the Due Process Clause provide the governing standards. If the Gov. seeks to introduce statements that relate to a crime with which the suspect has not yet been charged, the due process voluntariness test provides the sole constitutional constraint on admissibility. D was arrested for the murder of a taxi driver who was killed with a sawed-off shotgun; D was advised of Miranda rights and invoked his right to counsel. However, as the officers were driving the D to the police station, they talked among themselves about how they feared that handicapped children in the neighborhood would find the gun and hurt themselves. D, overhearing the conversation, showed the police where the shotgun was hidden.

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Arizona v. Fulminante When D was in prison for a firearm conviction, and a fellow prisoner was a paid informer pretending to be an organized crime figure. After hearing a rumor that D had killed a child, the informer told D he could protect him from the tough treatment of other inmates, but that in return, the D would have to tell the informer the truth concerning the homicide rumor

Criminal Procedure
Under the totality of the circumstances the Ds confession was involuntary because of the Due Process violation by the informer: 1) D was in danger of threatened physical harm from other inmates; 2) the informers promise to protect D was the equivalent of a threat to use physical violence if the D did not confess. D faced a credible threat of physical violence and his will was overborne.

Warnings Required? Custody? o McCarty - a suspects freedom of action is curtailed to a degree associated with formal arrest. o Fields - whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. Interrogation? o Innis express questioning or functional equivalent. Functional equivalent is conduct the police knew (or should have known based on suspect) was reasonably likely to elicit an incriminating response. D. Waiver Miranda Waivers Must be voluntary, knowing, and intelligent. Intelligence is not wisdom. Police are not required to supply suspect with flow of information to help him calibrate his selfinterest in deciding whether to speak or remain silent. Voluntary = product of free choice rather than intimidation, coercion, or deception. Knowing and intelligent = with understanding of rights being relinquished. Understanding of rights can be inferred from Ds conduct. North Carolina v. Butler D was arrested and after his arrest, D was Officers do not need to obtain an express waiver given his Miranda warnings. He was also from a D of his Miranda rights as a necessary given a form to read outlining his rights. When condition for the admissibility of subsequent asked, D said that he understood his rights. He statements. Not about form: The question is not refused to sign the form indicating that he one of form, but rather whether the D in fact waived his rights, but agreed to talk to the knowingly and voluntarily waived the rights agents and made self-incriminating statements. delineated in Miranda. Mere silence is not enough, D never requested an attorney or tried to stop however. But in some cases, waiver can the agents questions. D sought to have his be inferred from the actions and words of the statements excluded from evidence, arguing person interrogated. D gave waiver: No doubt that that he had not waived his right to counsel at D was adequately and effectively apprised of his the time the statements were made. rights. No reason why an express waiver need be a precondition to admissibility. A waiver, express or implied, is still a waiver. Burghuis v. Thompkins Waivers can be established even absent formal or express statements of waiver and an implicit waiver of the right to remain silent is sufficient. A waiver may be implied through the defendants silence, coupled with an understanding of his rights and a course of conduct indicating waiver. Butler. 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. 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. Officers need not ask whether a suspect understands Miranda warnings and the prosecution need not prove that a suspect expressly asserted his understanding. Mirandas requirements are met if a suspect receives adequate warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. A waiver may be secured after interrogation begins. Colorado v. Spring D was arrested for a firearms violation, received Miranda warnings, signed a waiver, and said he was willing to answer questions. D did not know that the agents had received a tip that D had participated in an unrelated murder. After beginning to interrogate D about the firearms crime, the agents first asked D if he had a criminal record, and when D admitted to shooting a relative, the agents asked if D ever shot anyone else. D made an incriminating statement that was admitted at his trial for the homicide crime. D argued that the statement was preceded by an invalid waiver because

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Criminal Procedure
police failed to tell him that subject of the interrogation would include the homicide crime. The Miranda warnings supplied the D with all the advice about the privilege that is necessary, including the advice that anything he said, implicitly about any crime, may be used against him. There is no evidence that the D did not understand this warning, only that he made an erroneous assumption about the subjects of interrogation. The Miranda decision did not require that police inform a D of every possible consequence of a waiver, such as the event of interrogation about crimes unrelated to the crime for which D was arrested, for the waiver to be knowing and intelligent. Mere silence by police as to the subject matter of an interrogation does not constitute trickery that makes a waiver involuntary; information about the subjects of interrogation could contribute to the wisdom of a waiver decision but not to its voluntary nature. D waived his right to an attorney, but his sister Police have no obligation under Miranda to give D retained a lawyer to represent him. The lawyer information that could be useful in making the called the police station and told them not to waiver decision, other than the Miranda warnings interrogate D until the next day. The police themselves. Interactions between the officers and promised the lawyer not to interrogate the D the attorney, which were unknown to the and then went ahead with questioning. The D defendant, could have no impact on the validity of was given warnings, waived his rights, and Ds waiver. Once it is determined that a suspects made incriminating statements, without decision not to rely on his rights was uncoerced, knowing his sister got him a lawyer. that he at all times knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Moran v. Burbine

E. Invocation of Protections Invocation of Miranda Invocation must be clear and unambiguous Once suspect invokes, police must scrupulously honor. If RTS invoked, re-interrogation ok under certain conditions Assuming no break in custody, if RTC invoked, no re-interrogation unless an attorney is present or suspect initiates. Michigan v. Mosley D was arrested for robbery, and his Miranda rights were read to him. After about fifteen minutes of questioning, D said that he did not want to answer any more questions, although he did not invoke his right to counsel. Two hours later, D was brought out for questioning again about a homicide. This time after Miranda rights were read by a different police officer, D signed a waiver and made an incriminating statement about the homicide, after he was told that another person named him as the shooter. Where an arrestees right to cut off custodial questioning is scrupulously honored by police, a resumption of questioning for the purpose of seeking waiver is permissible after the right to silence is invoked. A blanket prohibition on the resumption of questioning following the invocation of silence would result in transforming Miranda into an irrational obstacle to law enforcement. The Miranda right to cut off questioning by invoking the right to silence is meant to give an arrestee the right to control the time of the questioning, the subjects discussed, and the duration of the interrogation, but not to ban all questioning indefinitely. The Ds right was scrupulously honored because he received two sets of warnings and was not badgered into giving up his right to silence. Two hours passed after his invocation of silence, and a different officer approached him in a different location to ask about different crimes. Police did not ignore his invocation or attempt to change his mind by badgering him. Edwards v. Arizona D was arrested, and received Miranda When an accused has invoked his right to have warnings. He invoked his right to counsel by counsel present during custodial interrogation, a saying that he wanted to talk to an attorney valid waiver of that right cannot be established by before making a deal. The next day, D was showing only that D responded to further policerequired to meet with the police again; the initiated custodial interrogation, even if D has been police gave D new warnings, obtained a advised of his rights again. Furthermore, a D waiver, interrogated D, and obtained whose invocation has implicitly expressed the incriminating statements about the crime for desire to deal with police only through counsel is which he had been arrested. not subject to further questioning until counsel has been made available to D, unless the D initiates further communication, exchanges, or conversations with the police. Davis v. United States The D was arrested by military police for murder and initially waived his rights and talked to police for an hour and a half before commenting, Maybe I should talk to a lawyer. The police responded

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by treating the comment as an ambiguous invocation of counsel and asking the D for clarification. The Ds response established that he did not want a lawyer after all. After another hour of questioning, the D said, I think I want a lawyer before I say anything else. The police interpreted this comment as a clear invocation of the right to counsel and cut off all questions. Later the D argued that all statements after the first comment about a lawyer should be inadmissible as a violation of the Edwards rule. Police have no duty to seek clarification of Ds wishes under Miranda when an ambiguous invocation of the right to counsel occurs. The police may ignore such an invocation completely and continue interrogating the D in the post-waiver setting. The test for an unambiguous invocation is whether a reasonable police officer in the circumstances would understand the Ds statement to be a request for an attorney. Ds initial request for counsel was unambiguous. An accuseds post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. At the first appearance hearing after his The 6th Amendment right to counsel is offensearrest for armed robbery, D was represented specific, so the prohibition on waiver-seeking by by a lawyer. The police visited the D in jail police after the invocation of the Massiah right that evening, advised D of his Miranda rights, does not prohibit police from waiver seeking for obtained a waiver, and procured a statement purposes of interrogating a D about uncharged from the D concerning the uncharged crimes crimes. The purpose of the invocation of the of murder and robbery. Two days later the Massiah right to counsel is to provide a D with an police returned, repeated the warnings, advocate to match the prosecutor after the initiation obtained another waiver from D, and procured of adversary judicial proceedings. The purpose of further statements about the uncharged the Miranda right to counsel is to protect a D who crimes. asserts the need to deal with the police only through counsel. D was arrested and given warnings; he invoked his right to counsel and then after the officer cut off questions, the D asked the officer during a car trip to jail, What is going to happen to me now? The officer responded by saying that he did not want the D to talk to him because the D requested an attorney. The conversation continued and the D agreed to take a polygraph test, during which procedure the D made incriminating statements. After a D invokes the right to counsel under Edwards, a court must determine whether the Ds subsequent questions to police qualify as an initiation of a generalized discussion of the crime, or whether they relate merely to routine incidents of the custodial relationship. The former type of questions constitute initiation that justifies the renewal of waiver seeking by police, while the latter type of questions do not. The Ds question, What is going to happen to me now?, revealed a general willingness to talk about the investigation, as opposed to a desire for a glass of water or a request to make a phone call. The officer understood the question to relate to the investigation, as is evidenced by the officers immediate reminder that the D did not have to talk, before a further discussion of the investigation occurred. There is 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 rights protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. Dissent: decision turned Miranda upside down by requiring suspects to unambiguously invoke their right to remain silentwhich, conterintuitively, requires them to speak. D invoked his right to counsel after his arrest When a defendant invokes the right to counsel, the for murder, and when his counsel met with D, prohibition on subsequent waiver seeking applies he told D not to talk to anyone, and said he even after the D consults with counsel. In this would seek a court order to stop police from situation, police may not reinitiate interrogation interrogating D. A few days later, the D was without counsel present. Consultation is not always told that he had to talk to a sheriff from his effective in informing a D about his or her rights, hometown, who gave D warnings and obtained and Miranda recognized how the preliminary incriminating statements without a written advice of counsel may be overcome by the waiver, which were admitted at Ds murder pressures of incommunicado interrogation. The trial. Edwards right should be enforced as a bright line rule in order to avoid the difficulties of defining the type of consultation with counsel that might serve to open the door to waiver seeking by the police. The Edwards rule applies even when different officers seek to interrogate a suspect about separate crimes. A suspect who asserts his right to counsel after being given the Miranda warnings as to noe offense may not be questioned about a separate offense unless the suspect initiates further exchanges with the police. No significance could be attached to the fact that the officer who conducted the

Smith v. Illinois McNeil v. Wisconsin

Oregon v. Bradshaw

Berghuis v. Thompkins

Minnick v. Mississippi

Arizona v. Roberson

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second interrogation did not know that the suspect had made a request for counsel. Whether a break in custody ends the presumption of involuntariness established in Edwards? In 2003, D declined to speak w/out a lawyer. In 2006, after receiving more on the same incident, police interviewed again and D waived his rights. Police may re-open questioning of a suspect who has asked for counsel (thereby under Edwards v. Arizona ending questioning) if there has been a 14-day or more break in Miranda custody. The court justified this period by noting that 14 days "provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody." Lawful imprisonment imposed upon conviction of a crime does not create coercive pressures identified in Miranda. When released back into the general prison population, convicts who live in prison merely return to accustomed surroundings and daily routine, regaining the control they had over their lives prior to the interrogation. The inherently compelling pressures of custodial interrogation end when a prisoner returns to his normal life. Chapter 10: Confessions and the Right to Assistance of Counsel Introductory Note The court, in cases subsequent to Massiah and Williams, made it clear that the protection afforded by Massiah is different from, and in some respects stronger than, the protection afforded by Miranda. A defendant who may be unable to attack his confession on the grounds that it was obtained in violation of Miranda or his 14th AMD right to due process might nevertheless be able to establish that it is inadmissible as a result of his 6 th AMD right to counsel. Massiah v. United States D was indicted for narcotics crimes and When federal agents deliberately elicit released on bond; he had retained a lawyer. incriminating statements from an indicted D, those The police continued the investigation of Ds statements may not be used against the D at the crimes, and received the permission of Ds coDs trial for the crime in the indictment. An defendant to install a radio transmitter in the indicted D has a Sixth Amendment right to consult co-Ds car, so that they could listen to the Ds counsel during a police interrogation; this right conversations with the co-D. These must be protected during surreptitious conversations produced incriminating interrogations, or else police may evade the right to statements that were admitted at Ds trial for counsel by interrogating all indicted Ds using the indicted crime. secret agents. Brewer v. Williams D surrendered to the police in Davenport on the advice of counsel; after arraignment for the crime (Williams I) of child abduction, D traveled on a two hour car trip to Des Moines for booking there. D was suspected of murdering a missing child. The D told the detective he would talk to police after he spoke to counsel in Des Moines, and Ds lawyer in Davenport reminded the detective of the police agreement not to question D. D received several readings of Miranda warnings before the car trip. Once en route, the detective told D that they would be driving past the area where the detective believed that D had hidden the body, and opined that the childs parents were entitled to a Christian burial for the child. The detective reminded D that no one else knew where to find the body in the snow, and told the D not to respond but to think about this information while they were traveling. Some time elapsed before the D made incriminating statements and showed the police the location of the body. Also, police knew that D had a history of mental illness. On the facts, did the police deliberately elicit incriminating statements from the D in violation of Massiahs Sixth Amendment right to counsel, or did the D waive his Sixth Amendment rights by making incriminating statements to the police? To establish waiver the state must show an intentional relinquishment or abandonment of the right to counsel, not merely the act of volunteering information in response to police conduct. The detective failed to obtain an express waiver of rights from D before deliberately eliciting statements from him. The confession cannot be treated as an implicit waiver because it was preceded by impermissible deliberate elicitation of statements concerning the charged crime that violated the Ds Massiah rights. Michigan v. Jackson D was charged with murder, and at his Police must treat a defendants request for arraignment, D requested appointment of appointed counsel at arraignment as an invocation Overruled by Montejo v. counsel. The police were present at the of the Sixth Amendment Massiah right to counsel. Louisiana arraignment, and the next morning they Since the Sixth Amendment right must be given at approached D before he consulted with least as much protection as the Fifth Amendment counsel. They gave him Miranda warnings, right to counsel, police must follow the same obtained a waiver, interrogated him, and procedure as that required by Edwards v. Arizona. obtained incriminating statements that were Therefore, police must honor a Massiah invocation introduced at his murder trial. by refraining from approaching the D to seek a Maryland v. Shatzer

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Reasons for prohibiting are even stronger after he has been formally charged with an offense than before.

Criminal Procedure

waiver of Massiah rights. The Ds Massiah rights were violated here because the police approached him after arraignment and sought a waiver for purposes of deliberately eliciting incriminating statements. Montejo v. Louisiana The majority definitively rejected the conclusion that a request for counsel at an arraignment is an invocation of the right to counsel for purposes of police questioning. A suspects request for counsel at an arraignment no longer impedes the ability of law enforcement officers to initiate efforts to obtain a waiver of counsel and secure disclosures from an unassisted accused. The Edwards doctrine, which deams waivers invalid when police initiate custodial interrogation after a suspect clearly invokes the right to counsel, adequately responds to the only defensible objective of Jacksonto prevent police officers from badgering suspects into changing their minds about relying on counsel. The 5th AMDs right to counsel attaches upon invocation (i.e. when an attorney is requested). The 6th AMDs right to counsel attaches when adversarial proceedings begin (i.e. at the arraignment). The presumption in Jackson attempted to analogize the 5th AMDs right against self-incrimination through Edwards v. Arizona to the 6th AMDs right to counsel. Essentially not allowing police interrogation after the right attached. Under Montejo, in the case where the Defendant has not asserted his 5th AMDs right to counsel but rather relies on his 6th AMDs right to counsel, police may reinitiate interrogation after his Miranda rights have been read. However, if a Defendant has asserted his 5th AMDs right to counsel and adversarial proceedings have begun, police may not reinitiate questioning without counsel present and waiver under Edwards, or unless the Defendant initiates the conversation and police get waiver. Patterson v. Illinois After D was arrested, he received Miranda When an accused is read the warnings prescribed warnings and made some incriminating by the Court in Miranda, this information makes statements. The next day he was indicted for the accused sufficiently aware of his or her Sixth murder, and transferred to another jail. D Amendment Massiah rights so that a waiver of asked which members had been charged. Upon Massiah rights will be considered a knowing and learning that one had not been he asked Why intelligent one. not, he did everything? Officer gave him Footnote: Some situations for waiver of Miranda Miranda warnings and offered D a waiver and 6th AMD would be different. form. After signing the waiver, D made further --Not told that lawyer was trying to reach him incriminating statements that were admitted at Miranda valid, 6th bad. his trial. --undercover and unindicted suspectMiranda valid, 6th bad. A D may validly waive his right to counsel for police interrogation, even if police initiate the interrogation after the Ds assertion of his right to counsel at an arraignment or similar proceeding 6th Amdt. can be validly waived, post-attachment, by a represented D without the knowledge of the Ds lawyer Edwards, not the fact of attachment or of representation, is the source of any prohibition on contact Post-indictment, valid request for Miranda waiver from a counseled suspect?: Most likely now a valid Miranda waiver even though D is represented by counsel per Montejo, but see Patterson possible exception (retained counsel + atty present + police lied to atty?) o In Patterson, D retained counsel himself = invocation of 6th Amdt. right to assistance of counsel So if D retains counsel (not appointed counsel), the atty is present at the station, and the police lie to him, that might be enough to invalidate a subsequent waiver o But in Montejo, D was appointed counsel, which means that he hadnt actually invoked his 6th Amdt. right Appointment of counsel doesnt negate ability to ask for waiver D needs to invoke his right to counsel in a Miranda context in order to have a subsequent waiver be invalidated Moran v. Burbine By its very terms, the 6th AMD becomes applicable only when the governments role shifts from investigation to accusation. Looking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the 6th AMD right to counsel. The right to counsel does not attach until the initiation of formal charges. Rothgery v. Gillespie D was arrested for being a felon and possessing a firearm. He made an initial appearance before a County, Texas magistrate who concluded there was prob. Cause. D was not appointed counsel until after he was indicted. Atty demonstrated that he had not previously been convicted and it was dismissed. Civil rights claim. It was wrong to conclude that the initiation of adversary proceedings depends on whether the prosecutor had a hand in starting the process. The act of bringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute and marks the start of adversary judicial proceedings. The question of whether attachment occurs at a particular event is entirely distinct from the question of whether that event is a critical stage of the prosecution at which an accused is entitled to assistance. One the right has attached, counsel must be appointed within a reasonable time to allow for adequate representation at any critical stage before trial, as well as at trial itself.

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Texas v. Cobb The D was indicted for burglary, and police approached D to seek a waiver in order to interrogate him about murders that occurred in the course of the commission of the burglary. The police read Miranda warnings, obtained a waiver, and procured incriminating statements that were admitted at the Ds trial for murder. D was indicted and incarcerated. Police contacted paid informant and told him to listen to D for incriminating statements. Was it a violation of Ds 6th AMD right to counsel when the govt. paid a fellow inmate to listen to D and report to the govt. if D made any incriminating statements while imprisoned after he was indicted and Ds attorney was not present? The D was indicted for theft crimes, and his co-defendant later told the police that the D talked to him about killing a government witness. The co-D agreed to cooperate and testify against the D, and then acted as an informant to deliberately elicit statements from the D, while wearing a wire. (D called co-D.)

Criminal Procedure
The Sixth Amendment is offense specific and so it does not extend to crimes that are factually related to a charged crime to which the Sixth Amendment has attached. The Fifth Amendment Double Jeopardy test for determining whether offenses are the same should be used for Sixth Amendment right to counsel purposes, and that test is whether each of two offenses requires proof of a fact which the other does not. Informant deliberately used his position to secure incriminating info from D when counsel was not present. Informant was not a passive listener. Not like the 4th & 5th AMDs where theres no issue so long as D was unaware that the other person was an informant. Deliberate elicitation. (see Massiah).

United States v. Henry

Maine v. Moulton

Kuhlmann v. Wilson

D shared a cell with a government informant who was instructed to keep his ears open in case the D revealed the identities of his confederates in a robbery and murder, for which D had been indicted. The informant was a passive listener, except that he did respond to Ds narration of his alibi defense, by telling D that his alibi story didnt sound too good. Fellers v. United States The D was indicted for a drug crime and federal agents went to his home and told him about the indictment and about the warrant they had for his arrest. The agents did not give D Miranda warnings. When they told him that their purpose was to discuss his involvement in the crime for which he had been indicted, the D made incriminating statements; later at the jail, the D was given Miranda warnings, signed a waiver, and repeated his earlier statements. 6th Amendment Right to Counsel Adversarial Proceedings Initiated? o Which offense? Deliberate Elicitation? o Subjective intent of the officer o Active inducement o Likelihood of inducement o Knowing exploitation of opportunity Waiver? Chapter 11: Identifications and the Right to Assistance of Counsel Introductory Note Constitutional Bases for Identification Protections 6th Amendment Right to Counsel o Adversarial Proceedings

Statements taken in violation of Massiah cannot be admitted at trial for the indicted crime, even if the government needs to keep investigating the D for purposes unrelated to that crime. To hold that such statements are admissible, as long as there are legitimate independent purposes for a continuing investigation, would eviscerate the enforcement of Massiahs protections. Under Massiah those statements may be admitted at a future trial for as yet uncharged crimes. Absent a demonstration that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks, a cell-mate informants reporting of a defendants inculpatory statements does not violate the defendants Sixth Amendment right to counsel. The agents violated the Ds Massiah rights because they deliberately elicited statements from him after indictment, without a waiver of counsel and in the absence of counsel. It is irrelevant whether or not D was interrogated under Miranda because the Massiah event for a Sixth Amendment violation is deliberate elicitation, which occurred here. The case is remanded for a determination whether the Ds post-warning statements at the jail were an unconstitutional fruit of the home statements taken in violation of Massiah. (They were not.)

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o

Criminal Procedure

Corporeal Identification Procedures Post-indictment line-ups 5th/14th Amendment Due Process o Corporeal and Non-corporeal Identifications Line-ups Show-ups Photo arrays What did the Wade court perceive as the dangers posed by government identification procedures and how did it attempt to alleviate those dangers? To what extent was Wade likely to eliminate the perceived dangers? What role did the court expect counsel to play at pretrial identifications? What was the constitutional basis for assigning counsel and role? Is the Wade decision consistent with the underlying purposes of the 6th AMD Right to Counsel? United States v. Wade Two men were indicted for bank robbery and appointed counsel to defend them. They were brought before the employees to participate in a line up identification procedure without the benefit of the presence of counsel, after indictment, but prior to trial. The Sixth Amendment of the United States Constitution (Constitution) guarantees an accused the right to counsel at post indictment identification procedures, and the failure to provide the accused with counsel will result in the suppression of the improperly conducted identification. The court must analyze whether potential substantial prejudice to defendants rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. The in court identification must be found to have independent origin, free of the primary taint of the improperly conducted lineup, in order to be admitted. The Sixth Amendment right to counsel attached to pretrial proceedings because of the importance that they have carrying on an adequate defense. The right has been interpreted to apply to critical stages of the proceedings. Identification procedures are critical because of the many dangers that inhere in identification procedures in general, and in eyewitness identifications in particular. Any prejudice occurring in an identification procedure without counsel present would denigrate the right of the defendant to effectively cross-examine the witness in question. Wade Attenuation Test Prior opportunity to observe the alleged criminal act The existence of any discrepancy between any pre-confrontation description and the Ds actual description Any identification prior to confrontation of another person Identification by other means prior to confrontation Failure to identify the D on a prior occasion Lapse of time between the alleged act and the confrontation Gilbert v. California Govt. witness who IDed D in courtroom also testified that they had IDed D at a pretrial lineup. Testimony relating to the pretrial identifications is the direct result of the illegal lineup come at by exploitation of the primary illegality. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused constitutional right to the presence of counsel at the critical line-up. Kirby v. Illinois V had his wallet stolen while on the street in A line of cases has held that the constitutional right Chicago. Police arrested two men in to counsel only attaches once adversary connection with a separate offense and proceedings have begun. The Due Process clause brought them to the station (they had Vs of the 5th and 14th AMDs adequately protect wallet). The police learned of the offense against unduly suggestive identification against V upon arriving at the station. V was procedures, and as a result the per se exclusionary called to come down to the police station, and rule need not be imported into events taking place upon walking into the building, immediately before the initiation of any formal prosecutorial IDed the two men, without counsel present, conduct. and before any formal charges. United States v. Ash Whether an accused has the right to counsel at The 6th AMD does not grant an accused the right to a post indictment photographic lineup counsel during a post indictment photographic conducted by the govt. for the purposes of identification procedure because the accused allowing a witness to attempt an identification himself is not entitled to be present, rendering it of the offender. impossible that the accused will be confused or overpowered by the proceedings. The 6th AMD guarantees the assistance of counsel during stages of the proceeding at which a defendant is faced with either the intricacies of the law, or a zealous prosecutor. Neither of these situations exists at a photographic display. The historical test to be applied to the Sixth Amendment issues indicates that the right has only been expanded when new facts have demanded it for the protection of the defendant.

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Moore v. Illinois

Criminal Procedure

Ds right to have a lawyer present at a pretrial identification was violated when the victim identified D at a preliminary hearing in which he was not represented by counsel. The identification in Moore occurred after D was told to stand before the bench and the prosecutor recited evidence that incriminated him. Also testified that she had IDed him during trial. Chapter 12: The Due Process Clause and Identifications Introductory Note The Due Process Clause has become the primary constitutional means of controlling police practices used to obtain identifications and regulating the admissibility of identification evidence. Stovall v. Denno V was injured in an attack. Shortly after V underwent surgery, D was brought to her hospital room. D had not yet been appointed counsel. V identified D as her attacker. A pre-trial identification made in the absence of counsel but not violating the 6th AMD should be excluded if it is so unnecessarily suggestive as to violate due process. A D could prevail if the identification procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." The Court held that the identification procedure, though suggestive, was necessary because of Vs injured state and affirmed Ds conviction. (Totality) Foster v. California D was shown to V in each of 2 lineups. In the Pretrial ID was so unnecessarily suggestive and 1st lineup, D was 5-6 inches taller than all the conducive to irreparable mistaken ID that the other men and was wearing a leather jacket introduction of testimony regarding that ID that was how the perp was dressed. In the 2nd violated due process. Foster is the only case in lineup, D was the only person who was the which the Supreme Court has held that admission same as before. of ID evidence violated due process. Coleman v. Alabama A courtroom ID following a pretrial ID so unnecessarily suggestive as to violate due process would still be admissible as long as the courtroom ID did not stem from the pretrial ID. Manson v. Brathwaite A trooper and an informant went to the Reliability is the linchpin in determining the apartment of a suspected narcotics dealer to admissibility of identification testimony. Factors to purchase heroin, which they did. The be considered include the opportunity of the suspected dealer was charged with dealing witness to view the criminal at the time of the heroin. No lineup was ever conducted, and D crime, the degree of attention paid by the witness, was identified on the strength of one accuracy of the prior description, level of certainty, photograph. (Trooper explained D and the and the time between the crime and the other cop said he might know the person.) confrontation. These factors should be weighed against the effect of the suggestive identification itself. No violation here. Totality Test: Reliability is the linchpin in determining the admissibility of ID testimony, and the totality of the circumstances approach should be adopted o Manson suppressions are extraordinarily rare Factors to consider in determining reliability: o Opportunity to view the criminal at the time of the crime o Degree of attention o Accuracy description of the criminal o Certainty demonstrated at the confrontation o Time between the crime and the confrontation Chapter 13: The Sources of And Rationales For the Exclusionary Rules Introductory Note Exclusionary Rule: o Evidence seized by the State in violation of the Fourth Amendment may not be introduced by the prosecution at the criminal trial of the victim of the unreasonable search or seizure. Weeks v. United States Police and a federal marshal entered Ds The Fourth Amendment must be enforced in house without a warrant in violation of the federal courts through the exclusion of evidence Fourth Amendment, and seized papers that seized in violation of its requirements. were admitted at Ds trial for lottery crimes. Unconstitutional seizures should find no sanction Before trial the D unsuccessfully sought the in the judgment of courts. The protection of the return of his papers and argued that they Fourth Amendment is of no value if exclusion of should not be used in evidence against him. unconstitutionally seized evidence is not required. Mapp v. Ohio The police pretended to have a warrant and The 4th AMD exclusionary rule must be forcibly entered Ds home, where they seized incorporated into Due Process. The contrary evidence that was admitted at Ds trial for holding of Wolf v. Colorado should be overruled possessing obscene materials. The police because since the Wolf ruling, over half the state conduct violated the Fourth Amendment. courts examining the question whether to adopt the rule have endorsed it, recognizing the futility of

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Should the exclusionary rule be incorporated into Due Process for Fourth Amendment violations and made binding on the states?

Criminal Procedure
relying on other remedies for 4th AMD violations. If the rule is not applied to state police, then federal police have an incentive to seize evidence illegally and give it to state prosecutors to use as admissible evidence. The rule is also an imperative of judicial integrity.

The purpose of the Exclusionary rule is to deter, not repair. Calandra. Chapter 14: The Scope of and Exceptions to the Exclusionary rules Introductory Note Exclusionary Rule Exceptions Good Faith Exception Independent Source Doctrine Inevitable Discovery Attenuation Doctrine Impeachment Limitation A. The Standing Limitation Exclusionary Rule Required? o Does the Defendant have standing to challenge the state action? Alderman v. United States Suppression of the product of a 4th AMD violation can be successfully urged only by those whose (Note) rights are aggrieved solely by the introduction of the damaging evidence. 4 th AMD rights are personal rights and cannot be asserted vicariously. Rakas v. Illinois Officer spots car linked to clothing store A car passenger has standing to contest an illegal robbery. Defendants and others are stop, detention, or search of a car only if the passengers. Neither D owns car. Police passenger asserts either a property or possessory search car. Rifle shells in the locked glove interest in the car or in property seized from the compartment and sawed-off rifle under front car. A person who asserts that his right to privacy pass seat. Ds arrested. Owner not arrested. has been violated by the search and seizure of Ds do not assert ownership of rifle or shells another persons property must show that his but challenge search on 4th AMD grounds. legitimate expectation of privacy was violated. Minnesota v. Olsen A persons status as an overnight guest is sufficient to give that person a privacy interest in the home that society is prepared to recognize as reasonable under Katz. Staying overnight is a longstanding social custom, and guests seek to stay in a home in order to have privacy that will be protected by the host. The host shares his or her privacy with an overnight guest, and is likely to give the guest a measure of control over the premises. The lack of a legal interest in the home does not deprive the overnight guest of privacy based on the understandings of society. Rawlings v. Kentucky Police discovered drugs in a purse belonging to Ds acquaintance. D claimed ownership of the drugs and challenged the search. Ownership of the property seized as a result of a search does not by itself entitle an individual to challenge the search. To contest the legality of the search, the individual must demonstrate that his or her legitimate expectation of privacy was violated by the search. Ownership is only one factor to be considered. Brendlin v. California A typical, reasonable passenger in a vehicle stopped by police is seized within the meaning of the 4 th. All passengers have a suppression claim/standing to evidence that is the fruit of the illegal stop. United States v. Payner Even if the search and seizure were outrageous and violative of due process values, the fact remains that the limitations of the Due Process Clause come into play only when the Government activity in question violates some protected right of the defendant. Minnesota v. Carter A police officer received a tip that an informant had walked by a window in a ground-floor apartment and seen people inside putting white powder into bags. The officer went to the scene and saw D and two others engaged in this activity; they were visible to the officer through a gap in a closed blind on the window. This event led to the discovery of drugs in the apartment and a gun in the Ds car, and this evidence was admitted at Ds trial for drug crimes. The D visited the lessee of the apartment only to assist in packaging cocaine for roughly two hours. Where a person is present in a dwelling only for a short time for the purposes of a business transaction, and where the person has no prior relationship with the householder or degree of acceptance into the household, the person has no Fourth Amendment expectation of privacy in the premises, and no standing to contest a violation of the householders right to privacy. In order to have a legitimate expectation of privacy in a dwelling, a person must have more than the householders consent to be there. A similarity to an overnight guest relationship can help to establish a privacy expectation of a visitor to a dwelling, except that where a dwelling is used only for commercial purposes, a lesser expectation of privacy exists. B. The Independent Source and Inevitable Discovery Doctrines

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Silverthorne Lumber Co. v. United States

Criminal Procedure
Govt. seized stuff and made copies. Returned the originals and subpoenaed for them back. May the Govt. use the knowledge it gained from reading illegally seized documents as evidence against Ds at trial? To permit derivatives would encourage police to circumvent the 4th AMD, so the illegal copied evidence was held tainted and inadmissible. This precedent is known as fruit of the poisonous tree and is an extension of the exclusionary rule. If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Govt.s own wrong cannot be used by it in the way proposed. Two agents trailing the petitioner forced entry into a warehouse containing Ds vehicle. They discovered marijuana. Subsequently, they returned with a warrant. Agents did not mention what they saw while applying for the warrant. The independent source doctrine applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. The independent source doctrine rests upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. The statements made to the police by D were not allowed at trial (see above). Is the body of the girl allowed if they were going to find it anyways? This case introduces the inevitable discovery doctrine, which postulates that if evidence will be inevitably discovered, the method in which it is obtained is not important. When evidence will inevitably be found in the course of an investigation, it is not unconstitutionally obtained if it is found sooner by other means. Govt. should not be placed in a worse position than it would otherwise have occupied.

Murray v. United States

Nix v. Williams (Williams II)

C. The Attenuation Doctrine Attenuation DoctrineEvidence secured as the result of government illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint. Wong Sun v. United States Narcotics agents unlawfully entered Toy's laundry at which point Toy indicated that Yee was selling narcotics. The drug agents then went to Yee and found the narcotics. Yee made a deal to give up his supplier, Wong Sun. Wong Sun was a prominent businessman, so the police invited him for a conversation about the case. Following this conversation, Wong Sun voluntarily returned to the police station to make a deal of his own, during the process of which he confessed. At Yee's trial, Toy's statements and the discovered drugs were both excluded as fruit of the poisonous tree because the search was done without a warrant. Wong Sun's lawyer argued that Wong Sun's confession should also be excluded as fruit of the poisonous tree. The court affirmed the fruit of the poisonous tree rule, but found an exception to exclusion in Wong Sun's case on the grounds that Wong Sun had voluntarily returned to the police station to make his statement, an act which had "become so attenuated as to dissipate the taint" or broke the chain of inadmissible evidence. The majority concluded that it is clear that the narcotics were come at by the exploitation of that illegality and hence that they may not be used against Toy. Wong Suns confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, [the majority held] that the connection between the arrest and the statement had become so attenuated as to dissipate the taint. The courts holding as to Toy that this ounce of heroin was inadmissible against Toy does not compel a like result with respect to Wong Sun. The exclusion of the narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee. The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. Statement = fruit: Verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest is no less the fruit of official illegality than the more common tangible fruits of the unwarranted intrusion Statement tainted: It is unreasonable to infer that Toys response was sufficiently an act of free will to purge the primary taint of the unlawful invasion o No independent source and connection with the unlawful activity was not so attenuated as to dissipate the taint Wongs statement: Because Wong Sun had been released on his own recognizance and went to Agent Wong voluntarily, the connection between the arrest and the statement had become so attenuated as to dissipate the taint Attenuation Doctrine: (Purging the Taint) Whether, granting establishment of the primary illegality, the evidence sought to be admitted has come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint Brown v. Illinois D was arrested without probable cause and without a warrant or exigency. He was given Miranda warnings and made incriminating statements that were admitted at his trial for murder. D argued

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Criminal Procedure
that his statements were the fruit of a violation of his Fourth Amendment rights under Wong Sun. Miranda warnings are only one factor that is relevant in an inquiry whether the taint of an illegal arrest has been purged before subsequent statements are made by a D in custody. If the warnings alone were held to purge such a taint, this rule would lead to a dilution of the effectiveness of the Fourth Amendment exclusionary rule because police would have less incentive to avoid illegal arrests in order to prevent the loss of tainted statements. The Miranda warnings after the illegal arrest did not purge the taint from the statements under Wong Sun because: 1) only two hours elapsed between the arrest and the statement, 2) no significant intervening event occurred during that time, 3) the officers were aware their conduct was illegal, and 4) the illegal arrest appears to have been calculated to make the D frightened and confused. A live witnesss testimony is always attenuated from the initial 4th AMD violation that resulted in the discovery of that witness. Intervening act of free will attenuates the taint of the 4th AMD violation. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. Police violate knock and announce rule when executing search warrant at Ds house. D moved to suppress all of the evidence based on the premature entry. Court held that taint of unlawful entry was sufficiently attenuated. Attenuation can occurwhen the causal connection is remote. Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

United States v. Ceccolini

Hudson v. Michigan

Attenuation Factors Brown v. Illinois (1975) o Temporal Proximity o Intervening Circumstances o Purpose/Flagrancy of the Misconduct United States v. Ceccolini (1978) o Nature of the Derivative Evidence Hudson v. Michigan (2006) o Protected Interest Limitation New York v. Harris The police had probable cause to arrest D for Where the police have probable cause to arrest a murder. They knocked on his door, identified suspect, the exclusionary rule does not bar the themselves, and were permitted to enter his states use of a statement made by the defendant house. There they arrested him inside his later at the police station, even though the house without an arrest warrant or exigency in statement is taken after an arrest made in the home violation of Fourth Amendment requirements. in violation of the rule in Payton. The statement Now in custody based on probable cause, D was not the fruit of the fact that the arrest was was taken to the police station, where he was made in the home, only the fruit of legal Fourth given Miranda warnings and waived his Amendment custody of the Ds person based on rights. D then signed an incriminating probable cause. statement at the police station. Oregon v. Elstad Police officers went to Ds home with an arrest warrant for D but did not give D the Miranda warnings. An officer told D that he thought the D was guilty of burglary and the D made an incriminating admission, which was ruled inadmissible because of the police failure to warn. However, the Ds later statements at the station were admitted because they occurred after a break of one hour, the reading of Miranda warnings, and the Ds waiver. The D argued that the later statements were the inadmissible fruit of the initial violation of Miranda during the arrest and brief interrogation without warnings. The 4th AMD fruits doctrine does not apply to Miranda violations. An initial Miranda violation will result in exclusion of an subsequent post-warning statement only if the initial violation was produced by coercion, such as physical violence or other deliberate means calculated to break the suspects will, so that the initial Miranda violation also violates Due Process. Ordinarily a non-coercive Miranda error such as an initial failure to give warnings before interrogation may be remedied by providing warnings later to remove the taint of the error from a subsequent waiver and confessions. Missouri v. Seibert A police officer deliberately used a two-step interrogation technique with midstream Miranda warnings. First, he questioned D for half an hour without warnings, obtained a confession to her involvement in a homicide, took a 20-minute break, and then gave D Miranda warnings and obtained a waiver. His second phase of questioning focused on statements D made in the first pre-warning phase, and the officer questioned D so that she would repeat her earlier admissions. Ds statements

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Criminal Procedure

in the first phase were excluded because they were unwarned admissions obtained after a violation of the Miranda duty to give warnings before interrogation. The Ds statements in the second phase were admitted at her trial for first degree murder, on the theory that they were not the involuntary fruits of coercive questioning in the pre-warnings phase of interrogation under Oregon v. Elstad. When Miranda warnings are provided midstream deliberately in a two-phase interrogation, they do not effectively function as warnings of Miranda rights, because they mislead the interrogated person and deprive the person of knowledge needed to make a knowing and intelligent waiver. The warnings were not adequate to serve their purpose under Miranda because: 1) the questioning was systematic and exhaustive in the first round; 2) the officer made repeated references back to the first round questions and answers during the second round; 3) the police station setting was the same for both rounds and only a 20-minute break interrupted the rounds; 4) the same officer questioned the D in both rounds; and 5) the impression was given that the two rounds were continuous, as nothing was said about the oddity of the warnings coming after the initial interrogation. The use of the warnings here does not resemble that in Elstad, where a good faith failure to warn was followed by a brief question that provoked an unwarned admission, and where warnings came at the start of an interrogation in a new location after the lapse of one hour. The relevant factors that determine whether midstream warnings are adequate include: o the completeness and detail of the questions and answers in the first round of interrogation, o the overlapping content of the two statements, o the timing and setting of the first and the second interrogations, o the continuity of police personnel, and o the degree to which the interrogators questions treated the second round as continuous with the first. United States v. Patane D failed to receive complete Miranda The admission of a non-testimonial fruit of a warnings because he interrupted the officer voluntary statement following a Miranda violation during the warnings and asserted that he knew does not violate the Fifth Amendment. Here the his rights. D had been arrested for violating a Ds voluntary admission to possession of the gun is restraining order, and the officer had received admissible even though it followed the Miranda a tip that D had a gun, which was a crime violation of the failure to give D complete because D was a convicted felon. When asked warnings. The Wong Sun fruits doctrine does not about the gun after the incomplete warnings, apply to physical fruits of Miranda violations D told the officer it was in his room; the gun because a violation of Miranda is not a violation of was retrieved and used in evidence against D the Fifth Amendment itself. at his trial for a gun possession crime. D. The Good Faith Exception United States v. Leon Police obtained a warrant on the basis of A good faith exception to the exclusionary rule information from a confidential informant as should be created to allow police to rely on search well as their own investigation. Pursuant to warrants when police have an objectively the warrant, police searched several reasonable belief in their validity, even though the residences and found evidence of drug crimes. magistrates who issue them make erroneous A trial judge suppressed the evidence after decisions about the existence of probable cause. deciding that the affidavits in this close case The exclusionary rule is designed to deter police did not establish probable cause to issue the misconduct rather than to punish the errors of warrant. judges and magistrates. When police rely on a warrant in good faith, the use of the rule has no deterrent effect, and its costs outweigh its benefits. The good faith exception is inapplicable when: 1) the magistrate issuing the warrant relied on false information and the affiant exhibited reckless disregard concerning the truth of the information; 2) the issuing magistrate abandoned his judicial role of neutrality; 3) the affidavit was so lacking in indicia of probable cause that a police officer could not reasonably rely on the bare bones affidavit; 4) the warrant was facially deficient concerning the particularity required for describing the place to be searched or things to be seized. Massachusetts v. Sheppard An officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant. Illinois v. Krull Evidence obtained as a result of a constitutionally unreasonable search was admissible because the officers reasonably relied on a state statute authorizing such search. Arizona v. Evans Evidence found as the result of an unreasonable arrest was admissible if the officer acted in

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Michael Mroczka

Criminal Procedure

objectively reasonable reliance on an erroneous computer record incorrectly indicating an outstanding arrest warrant and if court employees were responsible for the error. Herring v. United States D drove to station to check on a pickup truck that had been impounded. Officer asked the department's warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring department was contacted, and advised that there was an outstanding warrant. Within fifteen minutes, the clerk called back to warn that there had been a clerical mistake: the warrant had been recalled. But it was too late; officer had already arrested D and searched his vehicle, discovering firearms and methamphetamine. The exclusionary rule did not apply to a search that resulted from isolated and attenuated police negligence: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Suppression was unwarranted because an error in record keeping - not flagrant or deliberate misconduct - led to Herring's arrest. The court also warned that it was not "suggesting that all recordkeeping errors by the police are immune from the exclusionary rule. ... If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation." Davis v. United States Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. (Might be different for D who obtains judgment overruling one of the precedents.) E. The Impeachment Limitation Harris v. New York Without being read the Miranda warnings, D Statements that are inadmissible against an accused made some incriminating statements when he in the states case-in-chief, because they were was questioned by the police upon his arrest. obtained in violation of Miranda, may be used to When D testified at his trial, the prosecutor impeach the accused. The Miranda rules should not asked D during cross-examination whether or create a license for perjury. The statements used to not his earlier statements to police impeach the D provided valuable aid to the jury in contradicted his testimony at the trial, assessing credibility; this benefit should not be attempting to impeach him. sacrificed because of the speculative possibility that impeachment use of Miranda-violative statements will encourage police misconduct. United States v. Havens D was convicted of importing and possessing A defendants statements in regards to lawful cocaine. He and a co-defendant were search cross-examination may be impeached even if the when entering Miami after returning from impeachment evidence was obtained illegally. The Peru. The co-D had hidden pockets of cocaine U.S. Supreme Court notes that the Court of sewn into his t-shirt and a t-shirt with pieces Appeals erred in reversing the conviction by missing was recovered from Ds suitcase. D drawing a distinction between testimonies on direct testified in his own defense and denied any or by cross-examination. Impeachment should be involvement in importing or possessing allowed to prevent defendants from lying when cocaine, and denied knowledge of the choosing to testify. discovery of the t-shirt in his luggage. The prosecution impeached his testimony by offering the t-shirt. Kansas v. Ventris Statements obtained in violation of Massiah can be used for impeachment. Use of Silence for Impeachment Doyle v. Ohio (1976) D argued at trial that he had been framed. Prosecution asked, if you were framed, why didnt you say anything when you were arrested. Use of post-arrest, post-Miranda silence for impeachment is impermissible. Jenkins v. Anderson (1980) D argued at trial that he acted in self-defense. However, he didnt surrender to police until 2 weeks after the murder. Use of pre-arrest silence is permissible. Use of post-arrest, pre-Miranda silence for impeachment does not violate due process. Fletcher v. Weir (1982). Lower courts are split as to whether it violates 5th AMD or whether prosecution can use in case-in-chief.

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