1. 4TH AMT: SEARCHES AND SEIZURES A. SEIZURE? Rule: would a reasonable person feel that he wasn't free to walk away. (Bostick-free to decline) Rule: To seize something out of someone's pocket, you need immediate PC that evidence of crime = plain touch. (Dickerson) 1. Minor League: (need RS) b. Terry Frisk = need RS that you're armed and can only check for weapons c. Terry stop= need RS that you're involved in illegal activity d. Gov Interest v Degree of Intrusion (only for RS) e. Long enough to confirm or dispel, cop must use due diligence, least intrusive means 2. Major League: (need PC that crime has been committed and D did it) B. SEARCH? (Need PC that stuff is where police want to search) Rule: For criminal investigative or car search, police need PC + warrant or warrant exception. 1. Cite Katz for definition of search: 2-part test: a. Manifested subjective expectation of privacy b. Society is prepared to recognize as reasonable 3. Protective Search of vehicle under Terry = need RS that suspect poses danger and can only search places where weapon can be (LONG) 4. Protective sweep of area incident to arrest: not a full search but cursory a inspection of places where people can hide (Maryland v. Buie)
C. PC/ INFORMANTS TEST 1. Gates test on whether there's PC (informant) PUCC a. Predictive detail by itself b. Underlying circumstances/basis of knowledge c. Corroborative investigation d. Credibility/reliability of informant/info D. WARRANTS Rule: Police entry into private resident or building req's PC + warrant or warrant exception + knock & announce 1. May extend to all parts of residence defined in warrant and can detain occupant during search b/c there's RS that he's involved in illegal activity and other GI>DI factors 2. Private home: Arrest Warrant required for arrest in private home but no arrest warrant needed for public arrest 3. 3-P home: Absent exigent circumstances, search warrant & arrest warrant needed for arrest in 3P home (Steagald) 4. Wiretapping: need warrant, no exception, & need specific info for warrant (Berger) E. WARRANTS AND EXCEPTIONS (SEARCHES FOR EVIDENCE): CITE KATZ !! (A PO BADGE) 1. Airspace: No warrant for airspace (Riley) 2. Prison cells: No REP in prison, no 4th amt protection 3. Open Fields: No warrant for open field = no REP (Oliver) 4. Border search: Full search (Ramsey) 5. Areas surrounding industrial complex not search b/c not curtilage (Dow Chemicals) 6. Dog sniffs: no search if in public but dogs can't go in cars; dog alerts =PC (Place) 7. Garbage: no search; society isn't prepared to recognize it as REP (Greenwood) 8. Enhanced human facilities: ok as long as a theoretic human could've gotten the same info through surveillance or listening (Knotts)
Test: 1) evidence could be obtained through independent investigation 2) Reveals private stuff F. WARRANT EXCEPTIONS (SAC PEA) 1. SIAa. The person: To disarm suspect and preserve evidence (Robinson) b. The home: Confined to immediate vicinity of arrest (wing span) (Chimmel) c The car: extends to interior and containers but not trunk, done during traffic arrest (Belton) 2. Automobile exception: Ready mobility of auto + reduced expectation of privacy justifies search as long as there's PC that car contains something illegal. This exception allows you in trunk and to cut up interior (Carrol) a. PC justifies warrantless stops/searches of vehicles when they double as homes: 3. Consent: Can be w/drawn at any time, look for voluntariness (14th) (Bustamonte) a. 3P consent: Consent based on the following is ok 1. Common authority: property owner or 3P who has mutual use of property & joint access (paying rent) (Rodriguez) 2. Apparent authority: determined by facts at the time that warrant a man of reasonable caution in the belief that the person consenting had authority. 4. Plain View (PV): no search if police are lawfully where they're at (Hicks) 5. Exigent circumstances: Flight, destruction of evidence, hotpursuit
6. Administrative searches/inventory/ special needs a. Inventory searches (Bertine): look for policy b. Checklanes/ random car searches: 1. Random, baseless traffic stops are per se unreasonable, police must stop every car or every 5th (no discretion) (Prouse) 2. DWI checklanes are ok by 4th amt as long as there's no discretion. MI state constitution found the DWI check lanes are unconstitutional. (Sitz) Rule: Stopping motorist is a seizure w/in 4th Amt, must have individual suspicion or pursuant to a reasonable administrative scheme. c. Drug Testing: no 4th amt issue unless gov does it. Ok if done for public safety reason d. Undercover agents: no 4th amt violation, D assumes risks G. EXCLUSIONARY RULE: (look for good faith, inevitable discovery, impeachment, attenuation) 1. MAPP v OH: evidence obtained through illegal S&S/4 A violation will be excluded. Judicially created safeguard to deter police from violating 4th and preserve judicial integrity. B/c it's just case law, there's a lot of exceptions. H. LIMITS/EXCEPTIONS TO EXCLUSIONARY RULE: 1. Grand Jury: ER doesn't apply (Calandra) 2. Civil proceedings (Janis) 3. Federal Habeas Corpus 4. Standing: only person whose rts were violated can claim ER a. 2-part test (Rakas) 1. subjective expectation of privacy 2. society is prepared to recognize b. overnight guest has standing (Olson) c. no standing in friend's purse (Rawlings) d. Even if no standing to arg FOPT, arg that initial seizure was illegal & evidence should be suppress
5. Good faith exception: if reasonable police acted in good faith (obj. reas.) no ER b/c no deterrent effect (Leon) a. No good faith when: 1. officer lied to get warrant 2. magistrate was not detached and neutral 3. well-trained officer would know no PC 6. Inevitable Discovery Rule: illegally obtained info would have been found: (Nix) 1. In substantially the same cond. (close in time) 2. Through a legally on-going investigation 7. Independent Source: Evidence is seized legally despite other illegality 8. Impeachment: Prosecution can use illegal evidence to disprove D's testimony on stand I. FOPT: Rule: Any evidence obtained as a result of a constitutional violation will be excluded. 1. ER is the process of excluding evidence, the FOPT is the evidence that gets suppressed. 2. Attenuation Doctrine: Evidence illegally seized may be admissible even though no independent source, depending on connection between illegality and evidence. In (Wong Sun)the link was so weakened between illegality and confession that there was attenuation, thus it was free of the original taint. 2. 14th: DUE PROCESS/ VOLUNTARINESS: Rule: TOC weighing circumstances of interrogation & characteristics of the accused Rule: Out of ct ID must be suppressed if unduly suggestive & conducive to irreparable misidentification A. No state shall deprive any person of life, liberty or property w/out due process of law. (Voluntariness Test) (Bustamonte)
1. Prohibits involuntary confessions: physical & psychological coercion/ unfair means by police/ outrageous misconduct. a. No record of interrogation b. Incredible amt of discretion by police c. Ct will look to another rule to supplement test= Miranda d. Voluntariness test is still a valid way of assessing confessions and is related to Miranda in assessing the validity of Miranda wavier 2. FOPT applies to involuntary confessions 3. Purposeful 2-step confession (Q w/out rts & then Q w/ rts = Miranda violation (Seabert) 2. Argue case law: compare and contrast 3. 5th: MIRANDA/ 1) RTC 2)Right to Silence A. No person shall be compelled in any criminal case to be a witness against himself. B. Reasoning: Because of inherent coercion, ct decides statements may not be used unless police prove they used procedural safeguards: Miranda C. Judicially Created: Miranda isn't in 5th but came from case law. D. Applies to Custodial Interrogation (need both) 1. Custody: when D has been deprived of freedom in any significant way 2. Interrogation: Police questioning or equivalent a. Functional Equivalent: Words or actions on part of police that police should know are reasonably likely (foreseeable) to elicit an incriminating response from suspect E. No FOPT w/ Miranda; just statement will get suppressed b/c Miranda is limited to testimonial F. Public Safety Exception (Quarles)
G. Undercover agent = no Miranda needed (Perkins) H. Line-ups, voice exemplars, = no Miranda needed I. BAC needs warrant or warrant exception = exigent circumstances J. Valid Waiver: Invocation must be knowing and intelligent 1. police don't have to tell SM of interrogation 2. Police don't have to tell D that atty will be free 3. Silence + understanding of rts + conduct indicating waiver = waiver K. Mosley Yield Sign: Right to remain Silent 1. Police must scrupulously honor D's request for silence 2. Once D has invoked RTS a. Q must stop immediately b. Significant passage of time before police can reinitiate Q c. D must be re-mirandized 3. Exception: Booking Qs L. Edwards Stop Sign: 5th RTC 1. Once D has asserted Miranda RTC a. No Q until Atty is present OR b. D reinitiates communication w/ police AND 1. New Mirandas are given 2. Greater protection is given to 5th RTC Davis: request for RTC must be knowing & unambiguous Massiah: A violation of rule can't be used in states case in chief M. Not charge specific 4. 6th AMENDMENT RTC: Rule: Once AJP has begun, nothing can come between D and atty, explicit waiver is req'd & D has to know he's been indicted A. Generally: the 6th Amt RTC is entitled to more protection than 5th B. 6th Amt attaches at the beginning of AJP, but D must invoke to get STOP sign protection
C. 6th is charge specific, so only applies to crimes that AJP has begun on, not crime that are being investigated D. There must be affirmative Gov action that triggers confession for 6th to apply E. 6th Stop Sign (BIG STOP) MI v Jackson: Once D has asked for counsel, cops can't Q unless there is a clear waiver of RTC & nothing can come between D and atty F. Line-ups: are critical stages so 6th RTC applies G. All felonies have RTC and in Misdemeanors where there's actual incarceration, D gets RTC 5. EFFECTIVE ASSISTANCE OF COUNSEL Rule: Strickland test: 1) Was failure of counsel objectively unreas. 2) Would it have made a difference 1. Client has power over whether to plead or go to trial, whether to testify, and whether to waive jury trial 2. Atty has discretion of legal strategies/decisions 4. Indigents have the rt to assistance of counsel & experts if state uses them 6. RIGHT TO SPEEDY TRIAL A. 6th Amt Rt to a speedy trial: starts w/ AJP, if before AJP, then due process issue B. Balancing test from Barker: 1. Length of delay 2. Reasons for Delay 3. D's assertion of his rt to a speedy trial 4. Prejudice to D (essential factor) C. Remedy if D proves this rt has been violated = case dismissed w/ prejudice, after 18 months, burden shift to P to prove
7. JURY TRIALS A. 6th Amt rt to jury trial: the accused shall enjoy the rt to a trial by a fair and impartial jury 1. In state trials, the 14th amt guarantees rt to jury B. D must have 6months+ possible jail sentence to get jury- serious offenses only = not petty offense C. Jury is to be a fair cross section of your area and jury can't be discriminate based on race or gender D. How many jurors: at least 6, no more than 12; verdict must be unanimous unless otherwise agreed 1. Peremptory: can bump any juror for any reason 2. For Cause: Must show bias 8. GRAND JURY A. Function (the shield) serves as a check on prosecutions rt to indict suspect 1. Prosecutor has rt to subpoena all possible witnesses 2. Can give immunity to witnesses and they have to testify a. Transactional Immunity: No prosecution for crimes witness admits to in answering GJ's Q (GOOD) b. Use Immunity & derivative use: prosecution can prosecute witness for all crimes related to testimony but can't use actual testimony (BAD) 3. Witnesses testifying under immunity have 3 options: tell the truth, refuse to testify and go to jail, or perjure themselves B. The Sword Function 1. Prosecution doesn't have to disclose all evidence to GJ & only defense and judge is present 2. Miranda, FOPT, ER violations: evidence will still come in