December 13, 2011 Criminal Procedure I Page 1 of 40
Class Notes
January 15, 2003
Prof. Moskovitz: Home number: 510-524-1626
Excepting groups such as the ACLU and defense lawyers, only the courts will generally look for
the rights of criminal defendants.
Cases in the chapters are arranged chronologically. Solve each chapter’s problem from reading
the chapter’s cases to learn the law. The Notes may give hints or related information.
Problem I: People v. Dork and Schlump.
When the prosecutor motions to introduce evidence, you object. These are decided as a matter of
law and are less complicated. Motions to suppress are based upon factual information and so are
more complicated, e.g., deciding whether evidence was legally obtained.
To suppress the narcotic, you need to also suppress the police and technical reports regarding
them.
To frame the outline, look to the problem, the attorney’s statement, of what the issues are and
what you are supposed to do. In this problem, the instructions are: (1) “Write and Outline for the
Brief,” and (2) “Are we going to win?”
Use the IRAC method: Issue, Rule, Explanation, Argument, Counter-argument, Conclusion
(prediction)
Important Terms of this Class:
Unreasonable - Reasonable does not require right. A person may be mistakenly arrested, and
then arrested on another charge when the search turns up contraband.
A search that is based on a search warrant is presumed reasonable. A search that is not based on
a search warrant is presumed unreasonable. Showing that a search not based on a search warrant
is reasonable is proven by the Search Incident to Valid Arrest doctrine. This was the issue in
Draper and Cuhna. A search is valid if it is based on probable cause, which is a reasonable belief
that a person arrested has committed a crime, or is committing a crime (possesses narcotics.)
I. Dork’s Motion to Suppress the Marijuana.
A. Probable Cause to Arrest under the Search Incident to Valid Arrest Doctrine (SIVA.)
Probable Cause justifies both the seizure of the person and the search of the person.
The Officer must have had facts available to him indicating criminal activity at that time of
arrest to show probable cause.
B. Issue: Did the Officer Have Probable Cause to Arrest Dork?
Was the arrest valid? It was not if the probable cause was questionable.
Probable cause regarding whether Dork was or had committed a crime to justify the arrest.
Rule: See Draper, page 6 for similar rule. Cuhna: a state of facts must be known to the arresting
officer that would lead a man of ordinary care and prudence to believe, or to entertain a strong
suspicion, that the person arrested is guilty. [Make sure the words used in the rule are not vague.]
Explanation: What are ordinary care and prudence.
December 13, 2011 Criminal Procedure I Page 2 of 40
Class Notes
Facts:
1. Dork got paper bags from the car.
2. Dork exchanged money with known drug users.
3. Cops experience.
4. Area noted for drug activity.
5. Two other known persons were present.
6. The officer knew of the clean needle project.
Facts not used: Marijuana was found in the jacket pocket. (Occurred after the arrest.)
Argument: The officer’s knew that drug use was prevalent in the area, and the presence of
known drug users. The officer also recognized Dork’s activities of getting a paper bag from the
car, and exchanging the bag for money are indicative of drug activity. [This is not enough.]
Cuhna, furtive movements, exchange of something small in one person’s hand for money. So
what’s in the other hand? The said the officer did not have probable cause. Change for the
money, must be small, but what about the furtive glances? Maybe a ring or a bracelet as stolen
goods.
Compare the facts of the cases.
Counter-argument: The officer knew of the clean needle project.
II. Shlump’s Motion to Suppress the Cocaine
Issue 2) Whether there was probable cause to arrest Schlump
Issue 1) Whether the arrest was valid? (Turns on Issue 1.)
A. Issue 1): Whether the information from Dork was ambiguous and therefore insufficient to
justify probable cause for arrest.
Issue 2): Was the information from Dork reliable to justify probable cause for arrest.
Facts of Draper: Hereford the informant, tells Marsh the officer that Draper will be at the train
station with narcotics.
The public at large is generally believed to be reliable so long as they identify themselves.
Underworld informants must be known to be reliable.
B. Probable Cause to arrest.
1. Reliability of Informant.
2. Basis of the Informant’s knowledge.
December 13, 2011 Criminal Procedure I Page 3 of 40
Class Notes
Case Facts Issue/Holding Compare to our case
Draper Hereford had Why should Marsh Previously known reliable
furnished believe Hereford? (1) informant with solid basis
information Underworld informants vs. first-time criminal (may
previously which must be known to be be unreliable and trying to
proved to be true. reliable and the basis of get leniency).
No information their information sound. Dork gave Schlump’s
given on basis for (2) Hereford’s basis of name, a general physical
Hereford to know knowledge had that he description, time and
about Draper. gave an adequate location, and innocent
description of innocent details (which proved
details of Draper that wrong.)
showed his knowledge of
Draper to indicate that
Hereford had an on-going
(intimate) relationship
with Draper to know his
clothing, schedule and
mannerism that Draper
would confide in him.
Aguilar Affidavit submitted Was the affidavit sound? Dork did not give a reason
No, it lacked sufficient why he knew about the
detail for the judge to details.
decide who is reliable and
what is probable.
January 22, 2003
Illinois v. Gates (1983)
The basis of knowledge was probably that the informant heard of the plans from the Gates.
The police corroborated the information regarding the Gates’ travel plans.
Florida was a place where people went to get drugs.
They flew from Chicago, then drove back the next day. This does not directly suggest that they
bought drugs.
In the Totality of the Circumstances, informant’s tip, her drive down to Florida, his purchase of a
ticket and flight down to Florida, and his one night stay in Florida, suggest some illegal activity.
Ordinary citizens, like ordinary witnesses generally do not provide extensive recitations of the
basis of their everyday observations, but the veracity of persons supplying anonymous tips is by
hypothesis largely unknown, and unknowable.
Chapter 2 The Exclusionary Rule
Mapp v. Ohio (1957)
Police made an illegal entry and found illegal propaganda. In Weeks (1914) the Court had held
that under the 4th amendment, evidence from an illegal search had to be suppressed in federal
court, but as this was a state court. Previously, the fourth amendment had not been applied to
December 13, 2011 Criminal Procedure I Page 4 of 40
Class Notes
state cases. However, in 1949, the Court had held that fourth amendment protections also
applied to the states. Therefore, the Weeks exclusion rule also applied to the states.
Reasons for Exclusion Rule
(1) The evil of police conduct must be deterred, but by letting police break the law, and still
enforce the law against the defendant, does not effectively deter all police officers, and some
police would still break the law, since not all police would be prosecuted, or the criminal or civil
(tort) sanctions would be minimal. Also, the witness balance would favor the police officer. The
best method is probably to discipline the police officer (not that this works either.)
(2) The Court cannot force municipalities to disciple officers, but the Court can control the lower
courts, so using the Exclusionary Rule is the best method that the court can use.
(3) The imperative of judicial integrity - the court is seen as maintaining the integrity of the
criminal justice system.
Mapp is the most important case to come out of the fourth amendment, just like Marbury is the
most important (the gateway) in Constitutional Law to most all the other cases. Without Mapp,
only the federal criminal cases and a handful of civil rights cases would arise under the fourth
amendment.
Lecture: Most police officers want to obey the law, just like most citizens do. Also, Mapp is a
very important teaching tool for constitutional law. These rules all apply to facts. Since police
officers may lie, and the appellate court would not second guess a trial court, if a trial court
believes the officer, this problem is not corrected by the exclusionary rule.
In Mapp the Court excludes the evidence. In Leon the Court does not exclude the evidence.
Why?
In Mapp, the officers acted (1) on their own, and (2) without a warrant. In Leon, the Court said
that (1) the officers acted “reasonably,” and (2) they had a warrant that they believed facially
valid, and (3) the benefits of suppressing the evidence on Leon were not the same.
In Leon, the Court refined the meaning of the exclusionary rule. The magistrate made the error
about probable cause, however, the exclusionary rule is intended to deter improper conduct by
police, not by the magistrate. Police officers are not neutral, their job is too actively catch
criminals, so they are more likely to make unconstitutional mistakes. (A magistrate is like a
junior judge, who is appointed, and is not an article III judge.) While a judge may make a
mistake, the result is not a fruit of their labor.
The dissent in Leon pointed out that there are close relationships between the magistrates and the
police, so the exclusionary rule should still apply.
The Court felt that judicial integrity does not have a separate independent meaning here, so the
exclusion rule does not apply here.
December 13, 2011 Criminal Procedure I Page 5 of 40
Class Notes
Exceptions by the Court (page 66)
(1) Nor would an officer manifest objective good faith in relying on a warrant based on an
affidavit "so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable." Brown v. Illinois.
(2) The exception we recognize today will also not apply in cases where the issuing magistrate
wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York. In
such circumstances, no reasonably well trained officer should rely on the warrant.
(3) Finally, depending on the circumstances of the particular case, a warrant may be so facially
deficient-- i.e., in failing to particularize the place to be searched or the things to be seized--that
the executing officers cannot reasonably presume it to be valid.
(4) Where the warrant is insufficient to adequately describe the place to be searched.
(5) Where the information in affidavit came from a prior illegal search (tainted information.)
Problem 2 Page 42
Ablinsky - The exclusion rule is not much help to him.
City of Pasco v. Titus.
This is a balance test. The exclusionary rule acts to deter unlawful police conduct, but lets people
go also. To compromise this, the court will not exclude illegally found evidence from other
venues. There is no evidence that the exclusionary rule works. If a defense makes a statement
about illegal evidence then the court can bring it in.
January 29, 2003
Chapter 3
Katz v. United States - bugged telephone booth was an illegal search. While the phone booth was
clear, so that people could see Katz, the assumed that they could not hear him. Katz might have
assumed that the guy at the other end taped him, but he did not expect that the police would be
listening in.
A search occurs where a person has a subjective expectation of privacy that society is willing
to recognize as reasonable.
United States v. White - wired friend; Hoffa v. United States (1966) - Conversations with a
trusted friend are not subject to a reasonable expectation of privacy that the friend won’t talk to
police. White took an Assumption of Risk. Assumption of Risk - Society does not expect that
people will not reveal talk of illegal activities. A transmitter simply provides an exact record of
what was said, alleviating the risk of memory.
February 5, 2003
A Search is an intrusion on a justifiable expectation of privacy.
Problem #3
Mapp - Exclusionary Rule
Look at all acts of the police that lead to the evidence.
E.g., the bug, the paper bag, and the directional microphone.
Katz - the bug on the phone was a search since the police had time to get a search warrant.
December 13, 2011 Criminal Procedure I Page 6 of 40
Class Notes
IV Paper bag
A. Prior acts - bug on phone, directional microphone.
B. Entry through the gate.
1. Oliver says that walking onto curtilage is a search; Ciraolo is distinguished since the
yard can be seen from the air.
2. Katz - the test is not trespass. Walking on property gets you so close, (Oliver) but
looking from the air is not a search since you can’t get very close. Probably a search.
C. Garbage can was under the porch and he opens the lid.
Did she have a reasonable expectation of privacy?
Objective Test - Yes - it was under her porch in her back yard.
Subjective Test - No - she had discarded it, so she had abandoned it.
V Marijuana
A. Prior Acts - bug on phone, directional microphone, entry through gate, opened garbage
can, shined the flashlight in the garbage can, opened the bag.
Use of flashlight is not a search.
Chapter 4
Prior Acts Analysis:
The items are arranged like this because (1) these were the order in which the officer found them,
and (2) these are the sequence that allow use to point backwards to prior acts.
When does a judge grant a motion to suppress on Fourth amendment grounds? When the item is
the fruit of an illegal search.
Motion to Suppress
I Shotgun
A “Search” - Was there an intrusion on a justifiable expectation of privacy?
Yes- Without a search warrant, O’Fuzz walked onto the porch and opened the door.
B “Unreasonable”
1. “Valid Arrest” - Was there a valid arrest? Yes - based on a warrant.
2. “Incident” - Is the search incident to the arrest?
Chimel - warrant arrest at home for prior coin shop burglary, cops search the
whole house without a search warrant. An arrest is a traumatic event where people
will try to resist to avoid arrest, therefore, they may use a weapon, so a weapons
search of the person, or areas the arrestee could reach is justified. An arrestee may
also try to destroy evidence.
Might the guy try to reach for a weapon?
No- Chimel - (1) he several feet away, and (2) he was locked in the patrol car.
Yes- Turner - the search was valid since the police saw a gun next to him when
they arrested him. Police should not lose the ability to search simply because they
took precautions to protect themselves.
The general rule is that the police cannot search a room after a person has been
handcuffed and removed, but in cases where the officer is outnumbered (and handcuffs
someone to a table) or the arrestee needs to access the room prior to transport (to dress, or
December 13, 2011 Criminal Procedure I Page 7 of 40
Class Notes
use the bathroom), then an officer may search the area for weapons or evidence, even
with the arrestee handcuffed or removed.
Rabalewski - jacket on sofa - when the record is unclear, the court will assume the use for
the prosecution, e.g., far away, but here, (1) the jacket was 5 feet away, and (2) …
Here - the gun was behind the door, in the house at the top of the porch, and Mattick
would have had to leave the car, and climb the steps of the porch, giving O’Fuzz plenty
of time to stop Mattick.
II Cocaine
A Entry into the house
B. Takes keys from pocket.
Search - yes - reasonable expectation of privacy (Terry)
Unreasonable - Standard procedure to search the car.(therefore no causal link.)takes keys
from his pocket;
Not unreasonable - Robinson - search reveals crumpled up cigarette package (of heroin).
Concurring opinion by Justice Powell: I believe that an individual lawfully subjected to
a custodial arrest retains no significant Fourth Amendment interest in the privacy of his
person. - Since the whole body is going to jail, the whole body may be searched. The
need for a bright line rule - one that made it easier on the officers. You don’t need
probable cause for the search or for evidence.
C. Opens the truck
Search - yes, personal effects and papers are kept in a trunk.
Unreasonable -
Belton - Court tries to make a bright line rule, easy for the cop, for searching the passenger
compartment, this rule applies to a recent occupant of the car, so the cop/court can pretend they
were in the car (to make it easy on the cops.)
Chimel - After an arrest - you do not need probable cause to search the person or their car for
other evidence (to keep someone else from driving the car away.)
Belton - Contemporaneous - yes, but it was the trunk, so the
Turner - we don’t care where he was when the search took place, only when he was arrested.
Assuming the worse, he was at the front of the car.
Lunge rule of barriers - the trunk is closed and locked, the keys in his pocket.
D. Briefcase - the cop opened the briefcase in the trunk.
Search - yes, reasonable expectation of privacy.
Unreasonable - Belton & Chimel do not work here, the briefcase is one more barrier.
III Amphetamine
A Prior Acts
1. Entry into the house
2. Search of the trunk
B 1. Search of the wallet? ID, credit & medical info.
Yes - reasonable expectation of privacy
2. Unreasonable as not SIVA?
Problem with space:
The cop had the wallet, and the defendant was locked in the car.
December 13, 2011 Criminal Procedure I Page 8 of 40
Class Notes
Robinson - the majority said the cop could still open it.
Chimel - The search is reasonable based on space.
Problem with time.
Belton & Turner - the timing was contemporaneous.
Chadwick - how long is too long? Is the defendant still at the scene, and is the cop
doing something related to the arrest.
IV Heroin
A. Prior Acts leading to the seizure
1. Entry into the house
2. Search of the trunk
3. Search of the wallet
B. New act that lead to the heroin. - O’Fuzz saw Mattick try to swallow the heroin, and
grabbed him by the neck and stuck his fingers down his neck.
1. Search? Yes - reasonable expectation of privacy of not being physical grabbed
and having someone’s fingers placed in your mouth.
2. Unreasonable? Does SIVA apply?
Chimel - search pockets and wallet for weapons and evidence.
February 12, 2003
Problem 4 - SIVA of heroin found in his mouth.
New search - is it unreasonable?
Chimel says the SIVA officer can search the person and the area around without probable cause.
However, this is an unusual search. Schemer says something more is needed to go into the body.
There are three factors.
(1) There must be a warrant or exigent circumstances. Schemer - the police had probable cause
to arrest, and wanted to get a blood test. Since B.A. decreases quickly compared to the time
necessary to get a magistrate and warrant, this is exigent circumstances.
(2) Schemer - there must a clear indication that you will find what you are looking for.
(3) The invasion must be reasonably done. A blood test is OK, but surgery is very intrusive.
Courts generally approve of grabbing the suspect’s mouth to stop him from swallowing it, but
making him “unswallow” it requires a court order.
Chapter 5 STOP & FRISK
Terry v. Ohio (1968) - Previously it was an all or nothing approach. Plaintiff says the seizure was
an arrest. The defendant says it was nothing. The Court says they were both wrong - it was a
constitutional seizure.
Mendenhall Test - the test is whether a reasonable person would have believed they were not free
to leave. Applying it to Mendenhall, they said this was not a seizure, since they did not touch her,
show weapons, or have on uniforms.
Freedom from seizure protects the right to walk around unmolested. There are still the normal
interruptions of stoplights, panhandlers, and people asking for directions. These are not seizures.
Going in public means that we accept the risk of police stopping us to ask a question. The next
issue, is of what goes beyond the normal intercourse in public (drawing weapons, etc.)
December 13, 2011 Criminal Procedure I Page 9 of 40
Class Notes
I Grass
A. Motion to Suppress the Statement
1. Was the hand on shoulder a reasonable search?
a. Was the hand on shoulder + “we need to talk to you” a search or seizure?
1) Rules
(a) A search is an intrusion of a reasonable expectation of privacy. Is putting a hand
on a shoulder a search? No.
(b) Mendenhall - DEA stops a person getting off a plane and asks to search her. She
consents and hands over drugs to the searching agent. Since she consented so this was not
search. Issues of Mendenhall -
(1) Was the stop a seizure? Seizure = (reasonable suspicion) to use force or a show of
authority to restrain the liberty of a citizen. Reasonable person “free to leave” test
applies. Therefore, this was not a seizure.
(2) Did the officers have reasonable suspicion to stop/seize her?
(3) Did the officers have probable cause to search her?
2) The hand on shoulder and the “we need to talk to you” are probably alone not enough
to be a seizure.
b. Was the hand his shoulder unreasonable?
1) Rules
(a) Terry v. Ohio - Reasonable suspicion standard
(b) Terry v. Ohio - Specific and articulable facts …
(c) State v. Arvizu - Totality of circumstances.
2) Facts for Totality of circumstances of Specific and articulable facts that point to
Reasonable suspicion. Was the behavior innocent? Probably not, compare Bower.
(a) Known drug area (Bower) to
(b) White guys going to talk to known black drug dealers (Bower)
(c) Late evening (Bower)
(d) Furtive conduct (Cuhna)
c. Conclusion
1) The laying of hands on Grass was a reasonable search. Likely outcome.
2) The laying of hands on Grass was an unreasonable search. Not likely outcome.
2. Was telling Grass to put his hands on the wall a seizure?
a. Was it a seizure? Does it go beyond normal social intercourse? (Not free to leave standard)
This was a command, therefore, it was a seizure.
b. Was it unreasonable? Was there reasonable suspicion?
1) Rules
(a) Terry v. Ohio - Reasonable suspicion standard
(b) Terry v. Ohio - Specific and articulable facts …
(c) State v. Arvizu - Totality of circumstances.
2) Based on previous events, plus the fact that Coak run away, so this adds to the
officer’s belief that there is reasonable suspicion. Therefore telling Grass to put his hands on the
wall was probably reasonable.
3. Is Grass’ statement admissible?
December 13, 2011 Criminal Procedure I Page 10 of 40
Class Notes
II. Motion to Suppress the Marijuana
A. Previous acts - if either of these is illegal, then the marijuana is probably illegal.
1. Hand on shoulder
2. Was telling Grass to put his hands on the wall a seizure?
B. Was the pat-down search a.k.a. frisk a reasonable search?
1. Was the pat-down search a.k.a. frisk a search? Was there a reasonable expectation of privacy?
2. Was the pat-down search a.k.a. frisk reasonable? (Did the officer have reasonable suspicion to
believe that Grass was armed?)
a. Rules -
1) Terry v. Ohio - a pat-down is an intermediate search.
2) Terry v. Ohio - Reasonable suspicion standard of armed and dangerous.
3) Terry v. Ohio - Specific and articulable facts …
4) State v. Arvizu - Totality of circumstances.
5) People v. Day
6) Sibron v. State of NY
7) The right to frisk does not follow from the right to stop.
b. Facts:
1) Grass put his hands in his pocket.
2) Known drug area and drugs and weapons and often go together for sellers.
3) Buyers might be carrying a weapon to protect themselves from thieves and dangerous sellers.
4) Since his partner ran after the Coak, O’Narc was alone.
5) Perhaps the sellers might be dangerous.
-- The friend ran away (not a good reason, since a person who runs away is not a threat.)
c. Conclusion - the frisk was probably reasonable.
C. Was reaching into the pocket a reasonable search?
1. Was reaching into the pocket a search?
Yes - Grass would have a reasonable expectation of privacy for the inside of his pockets.
Minnesota v. Dickerson - Two officers saw Dickerson leaving a building that they knew
for drug sales. who saw them. Dickerson then turned around and walked down an alley.
The police drove to him, stopped him, and searched him and found a lump, then felt
around the lump (an additional invalid search.) He knew the lump was not a weapon, so
the court suppressed it.
2. Was reaching into the pocket reasonable?
Facts:
The officer felt a hard object, measuring 4” square, so it was probably not a gun.
Grass had just stated, “what’s wrong with buying drugs.” This likely gives probable cause that
Grass had drugs on him, so this could imply he had a weapon on him.
3. Was pulling the case out the pocket a seizure?
Rule: Probable cause is needed.
Facts: The officer had to touch the case, before removing it. In doing so, he would have felt its
texture, and been able to decide if it was a weapon or not.
4. Was smelling the marijuana an additional search?
a. Not if he could smell it without bringing it to his nose (an additional invasion of privacy.)
b. Does Rose apply? Flashlight on the porch was legal.
5. Opening the case.
Definitely a seizure.
December 13, 2011 Criminal Procedure I Page 11 of 40
Class Notes
Reasonable if his smelling the case and previous acts were reasonable.
III. Motion to Suppress the Amphetamines
A. Previous Acts - Arrest for the marijuana, therefore SIVA applies.
B. Search in the Jacket
Robinson - probable cause is automatic and not specifically needed for SIVA.
After arrest, it is open season.
IV Coak- Motion to Suppress the Cocaine
A. Previous Acts - Not Applicable since those apply to Grass, not Coak.
A. Facts
Coak had tossed the paper bag of cocaine in the bushes as he ran away.
One officer walked over to the bushes, retrieved the bag, opened it, and saw cocaine inside.
Issues:
A. Approach of the two officers is not a seizure of Coak since he was not touched and ran away.
B. Was the foot chase of Coak a seizure?
Rules - CA v. Hodari - police grab a bag that he drops as the police chase him.
Hodari says that the chase was a seizure saying that the police did not reasonable suspicion.
Seizure is a literal act, so the police did not seize him; the chase was an attempted seizure.
Therefore the chase was not a seizure.
C. Was the officer’s looking in the bushes a reasonable search?
No - they were in public, not a private area with a reasonable expectation of privacy for Coak.
D. Was the officer’s recovery of the paper bag a seizure.
No - they were in public, not a private area with a reasonable expectation of privacy for Coak.
E. Was the officer’s looking in the bag an unreasonable search.
No - they were in public, not a private area with a reasonable expectation of privacy for Coak.
V. Coak- Motion to Suppress the Stolen Jewelry
Issues:
A. Approach of the two officers is not a seizure of Coak since he was not touched and ran away.
B. Was stopping Coak with the red police light a reasonable seizure?
1. Was stopping Coak with the red police light a seizure?
Yes - that is beyond normal social intercourse that a reasonable person would think is a
command that they were not free to leave (Mendenhall).
2. Was stopping Coak with the red police light reasonable? Reasonable suspicion.
Yes - the red light was to get control, not to arrest.
Totality of circumstances, there was no traffic violation, but Coak had run away and thrown the
bag in the bushes.
February 19, 2003
II Coak
December 13, 2011 Criminal Procedure I Page 12 of 40
Class Notes
A. Cocaine
B. Jewelry (relate each act to relevance of the jewelry)
1. Prior Acts - Car chase.
2. Turning on the red light was a seizure.
Look at the facts up to the point that the officer turned on the red light.
a) Was it a seizure?
Mendenhall - making a reasonable person feel like they cannot leave is not enough.
Was it outside normal intercourse of life. - Yes, a command to stop.
Hogary - defendant tosses away a bag while being chased, being chased and not stopping
is not a seizure.
Coak stopped, so it was a seizure.
b) Was there reasonable suspicion to seize him?
Probable cause is not necessary, only reasonable suspicion supported by specific and
articulable facts. Terry v. Ohio. Not a hunch.
Probable cause = > 50% chance.
Reasonable suspicion = > 25% chance.
Totality of circumstances: Coak ran away, threw the paper bag, then jumped in his car
and drove away.
3. Getting Coak out of the car. OK under Mims.
4. Then the frisk.
A weapons frisk is OK, where there are reasonable suspicion that the person is armed and
presently dangerous. Terry v. Ohio.
What was the reasonable suspicion for the stop? Crimes of violence for a stop mean that
there is reason for a frisk.
Non-violent crimes require more facts. Illegally drinking alcohol is insufficient. Drug
sales and purchases are a sufficient reason.
This frisk uncovered nothing, so whether the frisk was legal or not is irrelevant.
5. Keeping Coak in the car for a hour.
a) Was it a new seizure or a continuation of the old one?
This was not a Terry stop. In Sharpe, the defendant argued that the stop was not a
reasonable Terry stop, but a de facto arrest where the defendant was in custody of the
state.
Driving a defendant to a victim for identification was a ‘transport detention” between
reasonable suspicion and probable cause. In Sharpe, the court said there were only two
levels.
As long as during the stop, the officer is reasonably investigating, the detention is OK.
Look at the spectrum of intrusiveness on a person.
Nothing (Mendenhall) -----Terry stop------------Sharpe-------------------------------Arrest
The rules you apply is different based on the detention.
1) Was this a Terry stop. Reasonable suspicion is necessary.
2) Was this a de facto arrest. Probable cause is necessary.
b) Entered into the apartment.
Was that a search?
Yes, but justified by consent.
Chapter 7 Search of the Home
December 13, 2011 Criminal Procedure I Page 13 of 40
Class Notes
I. Motion to Suppress the Pistol
Drove to the Zupp house.
Saw that the car was not there. Reasonable - plain view in public.
A Knocked on door
1. Search? Was there an intrusion on a reasonable expectation of privacy? No.
2. Unreasonable? No, not a search.
B. Looked through the door space after hearing a noise.
Yes, viewed the inside in manner beyond a justified reasonable expectation of privacy.
Search? Ciraolo - not a search. Opening a door to public view means it is not a search.
Whether his attention was drawn to it or not is irrelevant.
Unreasonable? No, not a search.
C. Entered the house.
1. Search? Yes - it was an intrusion on a reasonable expectation of privacy.
2. Unreasonable?
a) (1) Was there probable cause to believe he committed the crime, and (2) probable cause
to believe that he is there? Draper. Totality of Circumstances.
i) He did not have a search warrant, but the bank teller was identified and she is a member
of the public so she is assumed credible and reliable.
ii) She is a victim of the crime, so she has a sufficient basis of knowledge.
She gave a license number and a description of the robber (white male, 5’ 10”) which
lead him to DMV and got a matching description of the car owner, and his address.
Mrs. Zupp told him that no one else was at home, then he heard the noise and looked in
and saw the guy hiding behind the door.
(2) Was there probable cause to believe that he is there?
United States v. Magluta, (Eleventh Cir. 1995)
a)When viewed in the totality, the facts and circumstances must warrant a reasonable
belief that the location to be searched is the suspect’s dwelling, and that the suspect is
within the residence at the time of the entry. Page 327.
b) Officers may presume that a person is home at certain times of the day, which is a
refutable with respect to the suspect’s known schedule. Where the quarter are dark and
non-responsive, other evidence may infer the defendant is concealing herself. Page 328.
He couldn’t see the man. What is the strongest reason to believe that the bank robber was
at the home? The license plate gave this home as the address of the robber, and after the
noise the officer saw someone behind the door. Magluta - most people are at home at
7:30 at night, so the officer may assume that might be him.
b) Were there exigent circumstances? Are they required? Are they met?
Do we always need exigent circumstances to arrest someone? Is probable cause enough?
Leon: Where there is a warrant and good faith, the exclusion rule will not apply.
United States v. Watson, 423 US 411 (1976) - Where an arrest occurs in a public place,
neither an arrest warrant nor ‘exigent circumstances’ are required.
Payton v. New York - Where police officers forcible enter a home in order to arrest, they
must have either a warrant or ‘exigent circumstances.’ (Thinking the suspect was in the
apartment, a police officer broke a door to gain entry and saw incriminating evidence in
plain view. Suppressed.)
December 13, 2011 Criminal Procedure I Page 14 of 40
Class Notes
Why? There is an additional intrusion on privacy, and it is the home. The Court treats
home differently. You must go get a search warrant and an arrest warrant, but the Court
said that an arrest warrant will suffice.
United States v. Santana, 427 US 38 (1976) - not like Payton. Even though this was her
home, she was standing in the doorway, but then she ran in, so exigent circumstances
kick in.
(1) Are exigent circumstances required? The officer could not see who was behind the
door. This was more like Payton, not like Watson, and less like Santana.
(2) Are they met? The crime was armed bank robbery, so officer safety was involved.
Warden v. Hayden. This was not hot pursuit. Armed criminals might be worked up and
flee right away, and they might still be in a dangerous mood and hurt somebody, so the
court allows officers to pursue armed criminals without a warrant for officer safety.
Here the officer is on the front, and the officer can’t leave to get a warrant since the guy
knows the cop is there, and could flee and made a prepared stand.
Here, the officer made the first move.
Where the officer creates the exigency, they are not protected by the good faith doctrine.
We missed:
Knock (who you are) and announce (purpose- why you want to come in) is required to
barge in. Wilson v. Arkansas, 514 US 927 (1995). “Police - search warrant” or “Police - arrest
warrant.”
And finally - the guy is wearing a blue jacket, to he is arrested, and the frisk is SIVA.
II. Motion to Suppress the Mask
A. Prior acts of the officer that lead to the mask.
Knock on the door
Look though the door
Entry into the home
Arrest of Zupp
Frisk of Zupp
B. Took the arrestee out to the patrol car and re-entered.
1) Search? Yes - invasion of justified expectation of privacy
2) Unreasonable?
a) Probable Cause?
Not a Chimel SIVA since Zupp is in the patrol cause.
Perhaps looking for evidence or another weapon?
Going in to get evidence: Vale v. Louisiana, 399 US 30 (1970)
Would someone in the house destroy the evidence?
Would someone else come into the house to destroy evidence? The Court rules
this is insufficient, the police must have evidence that the confederates would
destroy the evidence.
In Vale, the police had enough time for get an arrest warrant, why not get a search
warrant also.
Stackhouse v. State, 298 Md. 203 (1983) - The sister lied to protect him, yet the
court still rules against the police. “Where the destruction or removal of evidence
December 13, 2011 Criminal Procedure I Page 15 of 40
Class Notes
is urged as justifying a warrantless search, it must be a situation where there was
an immediate, urgent, and compelling need for the police action. p 315.”
Zupp was home for a couple of houses, so there is probably PC.
Would SIVA let the officer back into the house? In Turner this is was OK, but not in Stackhouse.
b) Exigent Circumstances?
Yes - the wife lied, so she might destroy evidence but this is not enough under Stackhouse.
C. Going upstairs
Search? Yes?
Unreasonable? Under Chimel, no.
February 26, 2003
Problem 6 - Search of the Home
To enter the home warrantless, only the Doctrine of Probable Cause plus exigent circumstances
permit it. Here, he has already arrested the man and taken him outside to the patrol car. So only a
Search Incident to a Valid Arrest would not work. Chimel does not apply, since the house is out
of his reach, but Turner said it was OK. In this chapter, the Court rejected it in Stackhouse.
But is there still Probable Cause plus exigent circumstances to get evidence?
Warren v. Hayden, Watson, etc. are to get the suspect.
Here, Vale applies. SIVA does not apply, except that the police see his relatives coming back,
and are concerned that the relatives will destroy evidence. The Court says, no, the police need to
have a reasonable belief that the relatives will destroy evidence. This is the protection of the
home by the Court. In Stackhouse, the sister had lied about his presence, so wouldn’t she had
protected him? The MD court said that was not a good enough reason. The US Supreme Court
might rule otherwise.
In our problem, the agent went back into the house up the stairs, to the bedroom, and found the
ski mask. If any of these are unreasonable, then Mapp applies.
A. Prior Acts
B. Re-entry, assume this is OK.
1. SIVA
2. Probable cause + exigent circumstances
C. Went upstairs. Is walking up the stairs a search?
1. Search? Intrusion of justified expectation of privacy. By going up the stairs, he could
see things that he could not see from the entry of the home. The mere fact of walking
beyond is not automatically a search. (Oliver)
2. Unreasonable?
Has PC changed? He still has the initial PC of the call, the car license, the house address,
etc. He also has the man under arrest. Then the wife says “You’ll never find the money”
as he is going up the stairs.
D. Entered bedroom
1. SIVA? OK under Turner? No, the suspect was not near the bedroom. Chimel applies,
so searching the bedroom under SIVA is unreasonable.
2. Probable cause + exigent circumstances.
December 13, 2011 Criminal Procedure I Page 16 of 40
Class Notes
The wife says “You’ll never find the money” as he is going up the stairs. Now he has PC
(the arrest) plus exigent circumstances (the wife’s comment.)
Chapter 7 Cars, Containers and Objects
I. Marijuana
A. Officer’s knowledge of specific and articulable facts.
Informant - Fred Fink, known student, member of the public, detailed description. No statement
of basis of knowledge, but may have seen it. This is OK, totality of circumstances (Ill. v. Gates.)
Corroborated innocent facts when Officer saw car & trailer, ID’d them to Dipstick.
Intimate facts?
The officer then saw a $ exchange, with known drug dealer, and the paper bag placed in trunk.
Arrest of Dipstick
B. Opened the trunk
Search? Yes
Unreasonable?
1. SIVA
2. Probable cause + exigent circumstances (mobility of car)
Was there evidence of the crime in the trunk?
a. Probable Cause
Belton - Recent occupant rule; exception for trunk when the guy is in the trunk,
Chimel could apply if the guy was arrested near the trunk (but not the case here.)
Probable cause with Totality of circumstances, Ill. v. Gates.
b. Exigent circumstances
To prove exigent circumstances, there must be facts pointing to destruction of the
evidence. This is not a home, so the standard is lesser. The car is not going
anyway, the driver is in the patrol car. The car could be towed or broken into.
United States v. Chadwick - footlocker. SIVA can’t be used when the evidence is
taken away or no longer contemporaneous. Prosecution uses exigent
circumstances of mobility argument. The Court agreed that where there is
probable cause to search the car, the car can be searched. But a search of a car
needs more, a car needs a lower expectation of privacy. In Chadwick did not say
there is so little expectation of privacy as there to not be a search. There is still a
search, but the search is justified, just like a Terry stop and frisk, which are both
covered by the Fourth Amendment, but are acceptable under reasonable suspicion
as a lesser invasion.
Instead the Court in Chadwick required full probable cause, but no exigent
circumstances.
The value of exigent circumstances is to permit a search when time is critical for
safety of the officer or to prevent destruction of evidence.
Belton is the application of SIVA (except the trunk) and has nothing to do with
exigent circumstances.
Chadwick says that probable cause and exigent circumstances are required to
search a footlocker, but only probable cause is needed to search a car.
B. Took the paper bag
December 13, 2011 Criminal Procedure I Page 17 of 40
Class Notes
Seizure - interference with control, Yes
Reasonable -
Chadwick says Probable Cause + warrant or probable cause + exigent
circumstances are needed.
C. Opened the paper bag
Search? yes
Unreasonable?
Acevedo (do containers in car = a excepted auto, or a privileged container) says that
containers in automobiles may be searched since the officers are looking in the trunk, the
glove box, the engine compartment, under the seat, in the door panel, etc., so a container
in the car is the same thing.
II. Heroin in the suitcase.
A. Fruit of the Prior Acts?
Opening the trunk
Opening the paper bag
B. Search of suitcase? yes
C. Unreasonable? No
Probable cause is still necessary.
Belton said that the trunk does not apply.
Does automobile exception apply?
Chadwick - luggage does not have a diminished expectation of privacy.
Acevedo - there is a diminished expectation of privacy to all containers in the car.
The Officer did not see any activity relating to the luggage, he saw the exchange,
then the paper bag, and the marijuana. The informant said that he was a dealer, so
he likely kept drugs in the trunk, so this is the probable cause.
III. Handgun in the glove box.
A. Fruit of the Prior Acts?
Opening the trunk
Opening the paper bag
Opening the suitcase
Going into the passenger compartment
Search? - yes, but diminished
Reasonable, yes, under SIVA or Auto exception with probable cause (see below.)
B. Search of the glove box? yes
Not in plain view
Reasonable expectation of privacy?
A place you normally store private belongings.
Chadwick - lesser expectation of privacy in the car.
C. Unreasonable?
1. SIVA? - Valid arrest w/o warrant, Watson, probable cause is sufficient to arrest in public.
2. Probable Cause?
a. Danger from the glove box? No, too far from patrol car, into the car, into the glove box.
December 13, 2011 Criminal Procedure I Page 18 of 40
Class Notes
b. Chimel - Where there is insufficient evidence, assume the worse, so (lunging area) does
not work.
c. Belton - recent occupant of the car applies. This is not the trunk where Belton does not
apply.
d. Auto exception, the glove box is part of the passenger compartment.
i) To make auto exception (diminished expectation of privacy) work, plus probable cause
[plus Chadwick) exigent circumstances - exigent circumstances (Acevedo)]
ii) Search for a weapon since as a drug dealer he probably keep a weapon in the glove box to
protect himself and his drugs.
iii) As a drug dealer, he probably keeps the drugs in the glove box for easy access.
iv) Since the informant told the officer that drugs were sold from the car, and two types of
drugs were found in two other places in the car, he may spread them out throughout the
car.
IV. Stolen Suit found on the trailer.
A. Fruit of the Prior Acts - Drugs (marijuana & heroin) found in the trunk, and a handgun
found in the glove box.
B. Search? yes
Home on wheels, reasonable expectation of privacy, as shown by the closed curtains.
C. Unreasonable?
1. Does SIVA apply? No, the arrest did not occur in or near the trailer (Chimel), nor
was it contemporaneous in time.
2. Probable cause + exigent circumstances
a. Probable cause- informant said that he was dealing out of the trailer, and drug
dealers keep drugs at home.
b. Exigent circumstances - Auto exception not applicable.
Carney applies (mobile home). For a home, you need probable cause plus strong exigent
circumstances (Vale). In Carney, the US Supreme Court found the search reasonable for
mobility, lower expectation of privacy, and drug dealers keep drugs in their home/car.
The car is unhooked, since the car was driven to the restroom, therefore this is more like
a home than a car, but it is in public parking lot, although this is a transient residence,
which is not controlling.
What could happen to the contents of the mobile home if the officer left to get a warrant?
Other people who knew or thought he was there might break in, or the school might tow
it, or there might be someone else in the trailer. Do these add up to exigent
circumstances?
Since Stackhouse and Vale rejected the close relative, then there are no valid reasons for
a warrantless speculative home search. Even if it were not a home, the reasons are too
speculative for probable cause to justify a search.
Compare the cases. There is probable cause, but not exigent circumstances to justify a
search of the trailer.
D. Simply looking in the closet is not a new search since the closet was open (plain view
doctrine).
E. Pushing the clothes back was a seizure (moving the clothes) and a new search (by
looking past the clothes he had just moved.) There is a reasonable expectation of privacy
since clothes might conceal intimate things. Arizona v. Hicks (Scalia) - even a little bit of
December 13, 2011 Criminal Procedure I Page 19 of 40
Class Notes
movement was too much as another intrusion on a justified expectation of privacy. The
entry into the apartment was OK (for community safety) but moving the components
could have revealed something private (letters or photos) under the components, so this
was a warrantless search of the home. To justify a search of the home, full probable
cause was necessary, not just reasonable suspicion. O’Connor dissented by noting Terry
v. Ohio, for a spectrum of intrusions. A frisk is an OK search under reasonable suspicion,
and simply a small search should be OK under these circumstance (expensive goods in
cheap apartment.) So pushing the clothes back would seem to be a search.
For the search to be reasonable, the officer would need probable cause (for search for
drugs in the trailer) + exigent circumstances. However, exigent circumstances is still
weak. Suspecting drugs behind the clothes is suspicion, not probable cause. He was there
to look for drugs and weapons, not for clothes.
F. Pulling the sleeve/tag towards him was not a seizure (Hicks - a meaningful interference
of possession), but blowing off the dust is a new search. Does the defendant have a
reasonable expectation of privacy in the tag on the sleeve? Bond - squeezing a bag, feels
something hard that reveals drugs. The US said that there is no reasonable expectation of
privacy to the outside of the bag. The Court said that there was a reasonable expectation
of privacy (Katz applied).
March 5, 2003
Chapter 8
Consent - Bob Bopper’s Stolen Goods
Motion to Suppress the Jewelry from the Home.
Officer saw Bob Bopper coming off the roof of a warehouse carrying a bunch of stuff. There had
been a string of warehouse burglaries, all with roof break-ins. Bopper tried to run, but the officer
caught him, arrested him, and placed in the patrol car.
The officer asked Bob Bopper if he could search his home. Bopper said he didn’t know, and
officer then said that “we’d ask a judge to issue a search warrant.” Bopper then consented.
When they reached Bopper’s house, Bopper said, “I’m not sure I want you guys to search my
house.” The officer thought that Bopper had already his consent so he went to the front door and
knocked. A girl of about 14 answered the door. The officer asked who she was, and she said that
she was Bopper’s daughter. The officer said he was a police officer, and that her father was in a
bit of trouble, and he asked if they could search the residence.
Tina said, “I guess so.” They went to the father’s bedroom, and then looked in his desk where the
officer found stolen jewelry from warehouse.
Bopper:
Tina is only 16. She was told not to let people into the house, and told to stay out of the desk.
I. Arrest of Bopper
Was it a seizure? Yes, a meaningful intrusion.
December 13, 2011 Criminal Procedure I Page 20 of 40
Class Notes
Was it reasonable?
Was there probable cause to arrest Bopper without a warrant in public? Watson.
(1) Officer saw Bopper coming off the roof of a warehouse carrying a bunch of stuff.
(2) There had been a string of warehouse burglaries, all with roof break-ins.
(3) Bopper tried to run, but the officer caught him.
Knocking on the door. Was it a search or seizure? No, public access area.
II. Entry into the home.
Officer spoke to the girl, who she was, and she said that she was Bopper’s daughter.
A. Search or Seizure? No, an officer may talk to people at the doorway.
B. Unreasonable? No search warrant, so need another reason:
1. SIVA won’t work. The home is not near the warehouse.
2. Probable cause and exigent circumstances won’t work. There may be (probable cause) fruits
of the previous burglaries at the home, but there not (exigent circumstances ) hot pursuit, nor
danger of escape or danger of the destruction of evidence (Stackhouse; Vale v. Louisiana -
simply being relatives is not enough). Gonzalez - the police did not break in, knowing that
they needed a warrant.
3. Consent.
a) Bopper.
(i) Was Bopper’s consent valid (voluntary)?
Bopper said, “I don’t know.” At that time he was handcuffed, in police detention, in the back
of the squad car. Worley - free and unequivocal choice. The officer did not tell him he could
refuse (not required per Schneckloth v. Bustamonte), but instead said, “we’d ask a judge to
issue a search warrant.” Bopper then consented. Bumper v. North Carolina (1968) - Police
tell home owner that they have a search warrant, but they do not. By saying that they had a
search warrant, the cops implied that they were going to search anyway.
People v. Gonzalez (1976) - the Gonzalez were greatly outnumbered. There was no
explanation that the police might beat them up. The Appeals Court did not differ to the trial
court finding of fact. Did the police create the exigency? People in custody can give custody.
Bumper is unusual. Gonzalez is more the norm, consent is given, but is involuntary, in that
we disapprove of what the alternative is.
Bopper reluctance indicates that he thinks he wants to refuse, but is unsure if he can refuse.
Worley and Bumper are alike in that the person giving consent thinks that the officer can
search regardless of whether consent is giving or not. The Court says that this is consent not
freely given.
Here, the Officer told Bopper they would ask a judge for a search warrant. That is a small
difference, which may matter as an accurate statement of what the officer can do, and does
not expressly say, “we’ll get a warrant.” Most criminal defendants may not recognize the
distinction, but the Court will not favor the defendant unless the defendant still gives an
answer indicative of involuntary consent. Then the officer should tell the defendant that s/he
can refuse.
Analysis - The arrest does not infer the officer was silently communicating a threat.
Therefore the consent is voluntary.
December 13, 2011 Criminal Procedure I Page 21 of 40
Class Notes
(ii) Was the consent withdrawn? When they reached the house, Bopper then said, “I’m not
sure I want you guys to search my house.”
United States v. Alcantar - search was valid because the suspect never withdrew his consent.
Withdrawal must be clear and unequivocal - Burton v. United States, (D.C., Ct App 1994)
657 A.2d 741, page 403. Therefore Bopper’s statement was not withdrawal.
b) Tina
i) Is Consent of a Minor Voluntary?
Factors
Davis v. State, Georgia Supreme Court (1992) page 449: Age, maturity, and intelligence.
Cooper v. State: Permission to allow entry into the home, key to the home, and common
household duties.
Young minors probably do not understand the consequences of their actions. Older minors
may.
A minor may think that police have the authority to enter anyway.
Tina is home by herself, and it is at night. When told that her father is in a bit of trouble, she
might think that her father is in medical trouble.
Compare United States v. White - a person comes in and could be a snitch (undercover.)
What is being protected? The home? Misleading a child would probably be disfavored by the
court.
ii) Authority - Tina had been told not to let strangers into the home, so she did not have
authority. The officer thought that she was 14, but she was actually 16 (mistake of fact.)
Argument 1: Her authority was invalid.
Davis v. State: 1) "whether the minor lived on the premises; (2) whether the minor had a right of
access to the premises and the right to invite others thereto; (3) whether the minor was of an age
at which he or she could be expected to exercise at least minimal discretion; and (4) whether
officers acted reasonably in believing that the minor had sufficient control over the premises to
give a valid consent to search.
Stoner v. California, 376 US 483 (1964), page 394, Resident employees have lesser authority.
Tina is not on equal footing, and this is not a temporary residence.
Argument 2: Her authority was valid.
Frazier v. Cupp, 394 US 731 (1969), page 407 - Third party consent. A person sharing
belongings with another person assumes the risk that the other party will turn those belongings
over to the police. Under Frazier, Tina would have consent.
Illinois v. Rodriguez, 497 US 177 (1990), page 432 - she had moved out, but citing Matlock, the
police reasonably believed they had valid consent and that is good enough. The Court discussed
Stoner on page 436. In Stoner, the clerk told the officers he would let them in, after they
approached him. In Rodriguez, Fischer contacted the police.
Mistake of law is not a defense: Stoner, the police thought the clerk had authority.
Mistake of fact is a defense: Rodriguez, the police thought she lived there.
Real world facts that the police do not know should not count against the police.
December 13, 2011 Criminal Procedure I Page 22 of 40
Class Notes
Would the Davis court have meant the factors are to mean what the child told the police, and not
what the parents actually said?
So, perhaps, whenever the police are met at the door by a minor they must ask what the child’s
authority is?
The officer’s Mistake of fact here was that she was 16, and may have been old enough to give
consent.
III Entry into the bedroom and desk.
Search - yes.
No SIVA.
No exigent circumstances.
If Bopper’s consent was valid to enter the home, then his consent is valid for the bedroom.
If Tina’s consent was not valid to enter, her consent was not valid for the bedroom.
If Tina’s consent was valid to enter, would her consent extend to her father’s bedroom. Probably
not, it is a private area separate from the children’s area.
IV Entry into the desk.
Search - yes.
No SIVA.
No exigent circumstances.
If Bopper’s consent was valid to enter the home, then his consent is valid for the bedroom.
If Tina’s consent was valid to enter, would her consent extend to her father’s desk. Probably not,
it was in the bedroom and so it is a private area separate from the children’s area.
Plus, Tina’s father had told her not to open the desk.
Scope of Consent for a Search: Florida v. Jimemo, 500 US 248 (1991), page 440
The scope of consent is measured by objective reasonableness: "what would the typical
reasonable person have understood by the exchange between the officer and the suspect.
In Jimemo, the officer said he was looking for drugs. This statement means that everything
within drugs could be kept can be searched, but to destroy the car (can’t slash the tires.)
Does Bob’s consent to search the house include the desk. Since Bob was arrested for theft, the
search of the house would include all areas of the house where theft tools and stolen property
could be kept.
Tina, assuming that she has authority, and that the officer believes that she has authority. The
officer said, can we come in an look around for a minute? However, a minute is rarely taken to
be a minute, and “look around” can be read to mean that he would not be opening desk drawers.
March 19, 2003
Chapter 9 - Regulatory Searches are searches made by the government to ensure it is fulfilling
the statutory requirements. The issue is one of whether probable cause is required. If probable
cause was required, these searches could not be carried out.
The first issue is there was a search or seizure.
December 13, 2011 Criminal Procedure I Page 23 of 40
Class Notes
The second issue is whether the search or seizure is a criminal or a regulatory function.
Michigan State Police v. Sitz, US (1990). The delay was not significant to be a search.
Recent case: The police were stopping cars to look for drivers on narcotics. There was no search,
just a brief seizure. Indianapolis v. Edmonds (2000). The seizure was for an unreasonable
purpose of criminal investigation, not a ‘specific need’ for highway safety.
Terry v. Ohio was the closest case prior to the recent cases. Terry said that the search was not a
fourth amendment search, but a new type of police activity. The Court said that Police should be
able to balance the intrusive activity of a frisk to the need to control violent crime.
The recent cases are not that different. If you find the search or seizure was a regulatory one,
then probable cause or suspicion is not needed. A suspicionless search is acceptable for a
regulatory search function.
Problem 9A
I. A memo regarding drug-testing of law school staff members.
A. Would there be a search?
Rule: A search violates a reasonable expectation of privacy.
Does Greenwood apply? Greenwood is distinguished by the method of collection, in that a
person is forced to provide the sample (1) with observation in a particular time, place, and
manner, and (2) the body fluid is tested for the contents of the body. Vernonia. The collection
and observation occurs in a communal restroom, however, the testing is still a search by virtue
that the body fluid is tested for the contents of the body.
Yes. Therefore drug testing is a search.
B. Would the search be a regulatory search or a criminal investigation?
Rule: Balance the need for society with the intrusiveness.
1. What is the need?
a. Professors are role models for students.
There are high ethical standards for legal professionals.
There are rumors of drug use by members of the Bar.
A professor on drugs would likely not do his or her job correctly.
Is there a safety concern? Von Raab concerned gun-toting federal agents. Scalia dissented,
noting that there was no evidence that drug-testing was needed.
Is there a concern of injury? Colorado concerned student athletes who could injure themselves
while on drugs.
However, the Dean cites only a rumor case, no evidence is cited that a drug problem actually
exists.
What about a message that the employees are ‘clean.’ Von Raab.
b. Staff are not stated as a role model for students.
The argument for the staff is much weaker, since they are not role models, but while we don’t
want people making mistakes, the errors by staff are not injurious enough to warrant an
intrusion.
2. What is the intrusiveness?
December 13, 2011 Criminal Procedure I Page 24 of 40
Class Notes
a. Children have a diminished reasonable expectation of privacy. Schools acts a parent
while the children are at school. Children and athletes use communal restrooms, and gyms, and
locker rooms. Therefore, we are not much over the line with students.
These arguments do not work here, since the professors and staff maintain their privacy.
b. The amount of time taken and intrusion. The collection would not take long, so it is not
too much an intrusion.
Vernonia School District v. Acton (1995) - there was a history of drug use by the students.
Delaware v. Prouse - police randomly pull over people to check driver’s license. The officer did
not have probable cause to pull people over. The Fourth Amendment is based on our trust of
police. The ‘grave danger’ of abuse of discretion does not disappear simply because the
automobile is subject to state regulation resulting in numerous instances of police-citizen
contacts. 440 US 648, Page 458. A discretionary stop by police is more intrusive than a
checkpoint stop, because people have notice and less emotional effect in a checkpoint stop. A
traffic stop is justified by the traffic violation. There is also a concern that people will feel they
are being picked on because race, or their car, (or hair color, etc.).
c. The program must be tailored with advance notice, with specific testing only for the
suspected contraband, and the results provided to persons independent of any prosecutorial
function. Advance notice, compelling need for the intrusion, applicable to all persons,
standardized method.
There is a shot that drug-testing will be reasonable for the professors, but not for the staff.
II. A memo regarding library searches.
A. Would this be a regulatory search or criminal investigation?
1. What is the need?
The school is trying to reduce its losses of $52,000 per year for the school by recovering the
books before they leave the school.
B. Would looking into student backpacks and briefcases be a search?
1. Is it a search?
Backpacks and briefcases provide for the student’s needs from the time they leave home, until
they return. In the backpacks they carry not only their school materials but also their personal
goods, foods, clothing, and medicines. The intrusiveness therefore quite high.
2. Is the search unreasonable?
a. What is the need?
b. What is the intrusiveness?
Rule: Balance the need for society with the intrusiveness.
What is reasonable? Are there less intrusive ways to achieve a reasonable goal?
Herzbrun - metal detectors and X-rays are reasonable for public safety.
Checkpoint searches are reasonable.
Search only for books, so things that are too small for books could not be opened.
The search is could be done on a discretionary basis, so this is unreasonable.
December 13, 2011 Criminal Procedure I Page 25 of 40
Class Notes
Checking all bags is time and cost consuming.
Random time check to check all students.
Notice must be posted.
The point is what is being detected.
Young. Temperature readers are not reasonable since they can detect intimate activity.
Place. The use drug-searching dogs is not a search since the dogs only detect illegal drugs.
Chapter Summary
Three types of common regulatory searches.
1) Automobile inventory to find and protect valuables to prevent claims, and find dangerous
items, so long as there is a written policy. Sometimes, these overlap to criminal investigations.
Cars are impounded to clear the roadway, or protect the car.
2) Suspicionless border Searches for illegal immigrants and contraband of all luggage.
Personal searches require a reasonable suspicion of contraband.
3) Searches of probationers and paroles. Page 504. The Courts have upheld these searches
on grounds that the person has been subject to regulatory searches during their incarceration, and
parole is an extended prison, so the same restrictions can apply. Griffin v. Wisconsin. Wisconsin
searched on reasonable suspicion, without probable cause. Some lower courts have said that
suspicionless searches of paroles are reasonable.
March 26, 2003
Midterm exam
Miranda - Balance the need for privacy versus the need to catch criminals.
1936 Brown v. Mississippi – Applied the 14th Amendment Due Process to states or state cases.
Torture confessions - Due Process means we don't convict innocent people. Coerced confessions
lead to conviction of the innocent, so coerced confessions may not be admitted.
1944 Ashcroft v. TN; A 36 hour interrogation means false confession, reversed.
Corroborated details in coerced confessions. Where the defendant is guilty the danger of
convicting the innocent does not apply. The Court said cops cannot abuse people to confess.
Interrogation manual: Other ways to get people to confess. Blaming the victim, empathizing with
the defendant, etc. Tricking & lying, does this convict innocent people?
Page 510, Totality rule, Crooker & Spano.
1964 Malloy v. Hogan; Fifth Amendment applies to Court & interrogation.
April 2, 2003
Exam Comments:
Opener:
To: Whom
From Whom
Grading Comment, Relevance? What’s the connection of your statement to the issue?
Issue
Rule
December 13, 2011 Criminal Procedure I Page 26 of 40
Class Notes
Arguments, discuss and compare the cases.
Counter-arguments - discuss and compare the cases.
Phrases to use:
“It is a close issue.”
“On the other hand …”
Conclusion:
Phrase to use: The Court would rule …
Phrases to not use: I would rule …; I think the Court would rule …
Interrogation:
The Court does not want to approve brutal police methods.
The Court used Due Process to invalidate brutal police methods.
Police stated using the physiological methods. These were to get reliable (not false) confessions.
When the cases got to the Court, they were confused with the old terms, e.g., coercion, and
involuntary confessions. The Court felt that it was unfair to place unsophisticated people with
well-trained cops. The Court will tolerate heavier tactics on the sophisticated in the totality of the
circumstances. The problem with the T/C method is that it is unpredictable when there is not
enough information. Under the Spinelli, two-prong test, the line was brighter, but less fairer. The
Gate T/C method is fairer, but harder to apply.
Fifth Amendment Right Against Self-Incrimination.
How does the Court extend a criminal case prohibition to interrogation?
Even placing a person on the stand to testify is not torture.
Due Process protects people from torture.
Gideon’s Triumph - True Case, Henry Fonda movie.
Escobedo, pre-Miranda; Escobedo can afford his own lawyer. Police won’t let him see his
attorney, but letting him admit to being at the scene of the crime. Sixth Amendment case.
Miranda Rights:
Right to silence
Right to a lawyer to support his exercise to remain silent, not a Sixth amendment right.
Right to an appointed lawyer.
Inherent Conflict in Waiving Rights: What does the Court want the police to do?
Their job is to enforce the law and provide for punishment. Giving Miranda Rights makes the job
of the police more difficult.
Policy Question: Why? What is it that we are trying to protect?
What is the value in trying to encourage criminals to not talk.
Problem 11
I. Motion to Suppress “No way, man …”
A. Fourth Amendment Analysis, Stopping Ruiz on the street
1. Seizure
Page 563 - Two officers, in uniform, probably with weapons showing
Took him by the arm for a moment,
“We’d like to talk to you for a minute;”
Led him to a nearby alley, and
December 13, 2011 Criminal Procedure I Page 27 of 40
Class Notes
Patted him down (Terry).
Rule of Custody: Reasonable person would feel that they were not free to leave.
Mendenhall - took her to another room, not in uniform, no weapons, still a seizure.
Mendenhall - other factors listed (uniform, weapons, command, etc.)
Conclusion: Is a seizure/custody.
2. Reasonable suspicion to seize.
1 of 6 possible people, started to walk away, history of drug use & violence.
RS is present.
B. Fifth Amendment Analysis, Getting the Statement
If the statement is given in custodial interrogation, without Ruiz being given his Miranda rights,
the statement must be suppressed.
1. Custody - deprivation and time
(1) Was the suspect “deprived of his freedom of action in any significant way?” Miranda.
How does a Terry stop differ? Fourth Amendment custody: Means you possess the person/item,
the person/item is in your care, or the person is arrested. Also meaning, a deprivation of freedom.
(2) Berkemer v. McCarty, 104 S.Ct. 3138, 468 U.S. 420 (1984) Page 583 - Traffic stop for
driving while intoxicated. Copp does not give McCarty his Miranda rights. McCarty argued that
the Court ruled in Miranda that the Rights had to be given when seized, and in Mendenhall the
Court said that seizure occurred when a person was not free to leave. Therefore, McCarty should
have been given his rights.
Miranda differed in that Miranda was in police custody, at the police station, and not in public, as
McCarty was in public. Since McCarty was in public, he would not be at the behest of the officer
as Miranda would have been to coercive questioning. The purpose of the Miranda rights is to
defuse a coercive atmosphere. Granted that McCarty was made to stay, but the atmosphere of
coercion was not present. The Court looked to two things in the interrogation manual, (1)
privacy, as in an interrogation room, and (2) time, you must break the person down gradually.
The Court said that both were missing since it was only a Terry stop, and out on the highway, not
a good place to interrogate somebody. Mendenhall was about a Fourth Amendment seizure while
Miranda was about Fifth Amendment coercion. Despite the Court’s language in Miranda and
Berkemer, these are not the same thing.
United States v. Carter, 84 F.2d 368, C. A. 8 (S.D.), 1989, Page 592
Carter was alone with his adversaries, but not under arrest. They kept him from leaving. There
was no coercion, but it was a coercive atmosphere. The Court did not hold that there was a due
process coercion violation, just that the atmosphere existed, and that was not permissible.
Ruiz - With the cops in a back alley. An alley is out in public, but it is off-street. That is closer
to Berkemer. With respect to time, this is closer to Berkemer than Carter.
So a deprivation of freedom is probably not present. A better term is coercive atmosphere.
Do they have to give him his rights? What if he was arrested?
Miranda requires the rights to be given before “custodial interrogation.” If either custody without
interrogation, or interrogation without custody, then the Miranda Rights are not required.
2. Interrogation
December 13, 2011 Criminal Procedure I Page 28 of 40
Class Notes
O’Copp said to Ruiz, “We have a witness who saw you go through the skylight at Putz
Plumbing.” Ruiz replied, “There was nobody around there when I went in.”
(1) The Miranda safeguards come into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. Innis, page 568.
(2) Was the questioning, words or actions, (1) either “express questioning or its functional
equivalent,” page 568, “likely to elicit an incriminating response?” Page 568. R.I v. Innis.
Innis - After Innis was arrested, he said that he wanted a lawyer. The OIC said not to question
him. The cops talked to each other about kids nearby and led him to the gun. By showing that he
knew where the gun was showed that the gun was his.
The Innis majority said that asking for a lawyer means the police cannot interrogate him. The
Miranda majority defined interrogation as the point needing the warnings. The Innis court set
out, “Express questioning or words or actions that the police should know would lead to
incriminating statements.” J. Marshall agreed with the test, but disagreed as to what the cops
were trying to attempt.
Copp’s statement was not a question, but presented evidence against him. Most people would
respond. See also Ferro, words or actions that present evidence are interrogation.
Conclusion: Ruiz was not in custody, so Miranda was not violated.
II. Motion to Suppress the Statement about the Blue Ford, and the lock-picking tools,
assuming the police take them.
Prior Acts: Seizure/Custody, Miranda violation for “nobody around.”
Facts:
O’Copp arrested Ruiz, then asked Ruiz if he had a car nearby, and wanted O’Copp to call
someone to come and get it.”
Ruiz pointed to the blue Ford and said, “Yeah. I got some lock-picking tools in my car, … .”
Excluded if Miranda rights are required.
Fourth Amendment - not a stop
Fifth Amendment
Custody or deprivation?
Yes, the same information applies as before, except that Ruiz has just been arrested.
Interrogation?
Possibly - Copp was looking for a blue Ford, but maybe Copp was simply looking out for the
guy’s car, so looking for something more?
Since Ruiz pointed to the car, it was close and clear enough that Ruiz saw it. Since O’Copp is a
police officer trained to pay attention to detail, he likely saw it. Because O’Copp also had
knowledge that a blue Ford was used in the burglary, and he suspected Ruiz of being the
perpetrator, he knew that asking Ruiz if he had a car nearby, would if answered truthfully, elicit a
response, that if not directly incriminating, could quickly lead to an incriminating response.
Routine booking cases are not all routine.
New York v. Quarles, 104 S.Ct. 2626, 467 U.S. 649 (1984) Page 573
Asking a question without giving a warning to protect the public. Marshall asked in dissent, why
not let the police ask the question, but the answer can’t use be use in trial. The majority said the
issue is reasonableness of the police, and not to punish police for looking out for public safety.
December 13, 2011 Criminal Procedure I Page 29 of 40
Class Notes
III. Motion to Suppress the Statement: “Yeah, but the stuff I ripped off wasn’t worth enough
for you to bust me for that one.”
Prior Acts:
Seizure/Custody.
Miranda violation for “nobody around.”
Miranda violation for statement about the blue Ford and lock-picking tools.
Facts: At the burglary a guard heard the man say something in Spanish with a lisp. O’Copp read
Ruiz his rights in English about remaining silent, his right to a lawyer, and an appointed lawyer,
but did not include a right to waiver, nor that any statements could be incriminating. Ruiz said he
knew all that.
A. Fourth Amendment - fruit of Fourth Amendment stop
B. Fifth Amendment
1. Requirement for Miranda Rights
a. Custody - Arrest - yes
b. Interrogation - Did you pull the Putz job?
Yes, so Miranda rights must be given
c. Public Safety or Rescue Doctrine Exception
New York v. Quarles, 104 S.Ct. 2626, 467 U.S. 649 (1984) Page 573
When police are confronted with the immediate necessity of public safety, an Officer
may question a suspect without first giving him his Miranda rights to insure that further
danger to the public does not result.
Analysis:
O’Copp and Bopp had secured and patted Ruiz down, so they knew that he did not have a
weapon on him. They had also moved him, so they knew he did not have a weapon
nearby. Therefore, the public safety exception did not apply. The statement is likely to
elicit an incriminating response.
2. Miranda Rights Given
Rules:
Miranda, Giving all of the rights: Silence, Waiver, Incrimination, Lawyer, Appointed.
The Court is saying in Miranda that this is a hostile, adverse situation, and at least one
person must tell the suspect that the police are not their to be the suspect’s friends.
Duckworth v. Eagan, 109 S.Ct. 2875, 492 U.S. 195 (1989) Page 596
An initial warning given to a suspect must in their totality, satisfy Miranda.
The cop gave the proper Miranda warning, but then added, if you request a lawyer, you
won’t get one before we get to court. This was literally OK, but could easily be
misunderstood. The defendant argued that this meant a lawyer could not be present
before and during questioning. The Court disagreed, saying that the rest of the warning
sufficed.
People v. Nitschmann, 35 Cal. App. 4th 677 (1995), Page 604
A confession will not be suppressed where a suspect reasonably shows that he was aware
of his right to counsel during questioning, even if the officer does not insist on stating
that rights.
December 13, 2011 Criminal Procedure I Page 30 of 40
Class Notes
Analysis: O’Copp read Ruiz his rights in English about remaining silent, his right to a lawyer,
and an appointed lawyer, but did not include a right to waiver, nor that any statements could be
incriminating. Ruiz said he knew all that. O’Copp did not read the entire rights, and what he
read, he read in English. Ruiz’ reply did not indicate that he understood that he had all 5 of his
rights.
Conclusion:
Since the public safety exception did not apply, and Ruiz had not properly been read his
Miranda Rights, his Miranda rights were violated, so the Statement should be suppressed.
IV. Motion to Suppress Statements made in Spanish.
Muniz: The Physical characteristic of speech is not testimony, but the things that are said are
testimony. Trilemma of Truth, falsity or silence.
Facts: Burglary spoke Spanish with a lisp; so does Ruiz, as the cop heard.
Admissible? Under Muniz, Ruiz will lose the motion, regarding the lisp.
Is that Ruiz answered in Spanish admissible? Hard question, language comes from the brain.
Assuming that it is testimonial? Is it interrogation? Are these likely to lead to an incriminating
statement?
Chapter 12
I. Motion to Suppress “He said, I took his drink.”
Fourth Amendment Seizure? Yes, he had been arrested.
Custody? Yes, he had been arrested.
Interrogation? What did the cop do that was interrogation?
Asked Denife if he stabbed Novo. Yes, this is interrogation.
Miranda Warning Required?
Yes, Miranda was required by the custodial interrogation.
Was the Miranda Warning properly given?
Yes, read from the card.
Did the suspect validly waive his Miranda warnings?
The suspect said, ‘Yes”, so this indicated that he understood his rights.
He said he did not want to talk with the tape recorder on. Not a waiver, but also indicated that the
suspect understood his rights.
The cop then asked whether the suspect stabbed the victim.
Rule:
(1) The warnings are to precede the interrogation, and the waiver must to precede the
interrogation. Miranda.
(2) The waiver may be expressed to implied by conduct.
(3) The waiver must be made knowingly, voluntary and intelligent.
April 9, 2003
Chapter 12 Problem
I. Motion to Suppress “He said, I took his drink.”
A. Miranda warning required?
1. Custody? Yes, since Denife was in custody.
2. Interrogation? Yes.
December 13, 2011 Criminal Procedure I Page 31 of 40
Class Notes
B. Miranda Warnings Given and Understood?
1. Given? Yes, properly.
2. Understood? Asked and replied, ‘yes.’
C. Waiver?
1. Act or words that would constitute a waiver?
“Yes, but I don’t want to talk with that tape recorder on.” Page 628. This suggests that the
defendant thinks that without the tape recorder, they can’t use it against him. Compare Butler,
(who verbally acknowledged understanding his rights, but refused to sign anything) and Barrett
(said that he would not give a written statement without an attorney, but would talk). Some lay
people think that oral statements are disputable, but do not recognize that this is meaningless to
the admissibility of evidence.
2. Knowing, intelligent and voluntary?
Intelligent - Consequences of the waiver? Copp told Denife that Novo was still alive. Would this
be material to Denife’s waiver? (witness vs. charges). Compare Burbine, who’s sister hired an
attorney to see him, but the police did not tell Burbine. The court said that this was not material.
The purpose of the Miranda warnings are to defuse the potentially explosive coercive
atmosphere of interrogation so that the suspect knows that interrogation is aversive, not to
encourage people to exercise their Miranda Rights.
Butler and Barrett suggest that “Intelligent” or “Knowing” are imperative. The dissents in
these cases dissent strongly, that the purpose of the Miranda rights are to allow people to
exercise their rights.
II Motion to Suppress, “Yeah.”
Facts:
I asked him how many times he stabbed Novo, and he said, “I’m tired of talking about
this. I think I’d like to talk to a lawyer.” I said, “You can call the Public Defender’s Office on
Monday morning when their office opens, if you like.” He shrugged his shoulders. I then turned
him over to our jail staff, which put him in a cell at about 7 p.m.
A couple of days later, I walked by his cell on my way to see another prisoner, and I just
said, “How you doing?” He said, “Hey, did you guys find a body at 64th and Elm last week?” I
said, “Yes, we did. A woman named Bonnie Prince was stabbed. Do you want to tell me
something about that?” He said, “I guess so.” I then read him his Miranda rights from the card
again, and he said, “I already know that stuff.” So I said, “Did you stab that lady?” He said,
“Yeah.”
Prior Acts:
Miranda warning required?
1. Custody? Yes, since Denife was still in custody.
2. Interrogation? Yes.
Miranda warnings given and understood?
1. Given? Yes, properly.
2. Understood? Asked and replied, ‘yes.’
A. Did Denife exercise his right to remain silent?
Facts: Denife said, “I’m tired of talking about this. I think I’d like to talk to a lawyer.”
Public Safety Exception does not apply.
December 13, 2011 Criminal Procedure I Page 32 of 40
Class Notes
1. Did he assert his rights to remain silent.
Yes, Denife said, “I’m tired of talking about this.
2. Did police cease interrogation? Yes.
B. Did Denife exercise his Miranda right to an attorney?
Facts: “I think I’d like to talk to a lawyer.” Miranda.
Page 668, Davis v. United States, 512 US 452 (1994) Davis said, “Maybe I should talk to a
lawyer.” The interview then continued for another hour, until Davis said, "I think I want a lawyer
before I say anything else." At that point, questioning ceased.
A suspect must (unambiguously) articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would understand the statement to be
a request for an attorney. If the statement fails to meet the requisite level of clarity, the officers
are not required to stop questioning the suspect.
California law does not require police to stop simply whenever a suspect makes any
mention of using a lawyer.
C. Did Denife waive his right to remain silent?
1. Did the police cease interrogation. Yes
2.. Did the police resume the interrogation. No, Denife did. See Mosley.
When a request is made for an attorney, interrogation may not resume.
When a request is made to stop, or for silence, interrogation may resume.
3. Who resumed the interrogation?
When a request is made for an attorney, only the suspect can resume interrogation. Roberson.
When a request is made to stop, or for silence, police may resume interrogation. Mosley.
4. Was the resumption about the same case or not?
When a request is made for an attorney, police may not resume interrogation on any subject, only
the suspect can resume interrogation. Burbine.
When a request is made to stop, or for silence, police may resume interrogation on any topic.
Mosley.
Chapter 13
The Court looked at totality of the circumstances of the interrogation. Physical techniques were
easier to see. Psychological techniques are more difficult. Miranda was hoped to solve the
problem of involuntary confessions. Miranda did not solve the problem since a few people will
exercise their rights, but many do not, and the police learn to adapt their interrogation techniques.
Miranda still left loopholes for police to ‘buddy’ up to people before starting interrogations.
Miranda was not to encourage people to not talk, but just to defuse the coercive atmosphere.
Miranda did not say that physical and psychological techniques could not be used. One element
of Due Process was about whether the suspect knew his Rights. Miranda ensures that.
Police may not introduce evidence taken in violation of Miranda rights in a case-in-chief, but if a
suspect testifies, police may introduce then evidence to impeach the suspect’s testimony. This is
taken by some as a cloud on Miranda, but the Court has not agreed. If a statement taken is
coerced, it may be used at all. Miranda is a prophylactic rule against the use of coercion.
December 13, 2011 Criminal Procedure I Page 33 of 40
Class Notes
Problem 13
I Motion to Suppress, “I wasn’t even there.” An exculpatory statement.
A statement that shows that the suspect may be guilty of something.
May also be used with other evidence to impeach the suspect.
Issue: Can the defendant keep the statement out?
A. Miranda.
Rights Required? Yes, Custody & Interrogation.
Rights Given? Yes
Rights Waived: Yes
Friday: Do you mind if I ask you a few questions? I just want the facts, Doug.
Graves: Go ahead. I got nothing to hide.
B. Due Process.
Rule: Confessions must be suppressed if they were involuntary or coerced.
1. What did the cop do?
“I just want the facts, Doug.” “I think you’ll feel a lot better if you tell us the truth about how
that lady got shot last night, Doug. Just get it off your chest.” Miller v. Fenton.
Are these coercive (threatening, or worded or otherwise likely to make an innocent person
falsely confess)? No.
2. Facts about the defendant. Miller v. Fenton.
The factors of understanding the consequences of waiving one’s Miranda Rights: Age, Maturity,
Intelligence, Education, physical illness, mental illness, and previous experience with the
criminal system, Miller, p. 723.
When: 2:30 AM, defendant may have been tired.
Age: 19
Education: Ninth grade
Experience: Arrested twice before.
Physical or Mental Illness: No.
Drugs: “A few beers.”
Outside Influence: Threat from other people against his family. Colorado v. Connelly -
man is mentally unstable when he confessed. The voluntariness of a Fifth Amendment waiver
has always depended on the absence of police overreaching, i.e., government coercion, and not
on "free choice" in any broader sense of the word, or a perception of coercion flowing from other
sources. Connelly, p. 711.
Police knowledge: Connelly - if police do not know about a suspect’s personal
characteristics, they are not material (education, experience, drugs, etc.) These are a State’s
problem with evidence, not a constitutional issue. A defendant may make the same or similar
argument to a jury. See Bixler v. State, 568 N.W.2d 880 (Minn. Ct. App. 1997), p. 756, Note 5.
3. Add them up. These are not facts. These are conclusions of policy.
a. Coerced? No important to admissibility, but may be covered at trial.
Outside Influence: Threat from other people against his family. Colorado v. Connelly - man is
mentally unstable when he confessed. The voluntariness of a Fifth Amendment waiver (Due
Process clause) has always depended on the absence of police overreaching, i.e., government
December 13, 2011 Criminal Procedure I Page 34 of 40
Class Notes
coercion, and not on "free choice" in any broader sense of the word, or a perception of coercion
flowing from other sources. Connelly, p. 711.
Related Fourth Amendment Case: Illinois v. Rodriguez, police were reasonable, and the purpose
of the Fourth Amendment is to prevent police from being unreasonable.
b. Involuntary?
A confession is involuntary where a government agent makes use of a suspect’s fear of injury or
death to extort the confession, even when the suspect does not know that the person is an agent
of the government. Arizona v. Fulminante, (1991) Page 749
A confession is deemed involuntary and hence inadmissible if procured by an express or implied
promise of benefit beyond that naturally flowing from a truthful statement, or by an express or
implied threat that the failure to make a statement will result in consequences adverse to the
suspect. In Re Roger EG. p. 691.
April 16, 2003
Gafkan - Germany, kidnapping, police interrogation, suspect refused to tell police where the boy
was. Suspect was threatened with torture, and then confessed. Police found the boy, who was
dead. Under German law, torture is prohibited except under exception circumstances.
However, Gafkan was only threatened with torture. Israel is suspected of torture.
United States law prohibits torture, but does not apply to Gitmo. The purpose is not to get
a conviction, but is future impending danger (saving lives.) The concern is that torture leads to
unreliable information and false confession.
In an Israel case, the government used the Necessity defense to defend its use of torture
and the agents lied in Court. Necessity is generally a private defense, not a public defense. The
Court agreed to the necessity defense, but not the lying to the Court.
Problem 13
II. Motion to Suppress, “He wasn’t even in the car with us.” Shows that he was there.
Prior Acts:
Issue: Can the defendant keep the statement out?
A. Miranda.
Rights Required? Yes, Custody & Interrogation.
Rights Given? Yes
Rights Waived: Yes
Friday: Do you mind if I ask you a few questions? I just want the facts, Doug.
Graves: Go ahead. I got nothing to hide.
B. Due Process.
Rule: Confessions must be suppressed if they were involuntary or coerced.
What did the cop do? “I just want the facts, Doug.” “I think you’ll feel a lot better if you
tell us the truth about how that lady got shot last night, Doug. Just get it off your chest.”
Miller v. Fenton.
Are these coercive (threatening, or worded or otherwise likely to make an innocent
person falsely confess)? No.
C. What did the cop do?:
December 13, 2011 Criminal Procedure I Page 35 of 40
Class Notes
Friday: We talked to Slim, your buddy. He said your brother Greg killed the lady.
1. Was this coercive by a threat by third parties? No
Suspect had been threatened by the other group, but the police did not know about the
threat, so the threat it does not apply as coercion. Connelly.
2. Was this coercive by threat by the Cop? No?
Suspect confronted with made up incriminating evidence about his brother. Friday
testified that he tried to question Slim, but Slim refused to talk to him.
Threat to his brother
Tingle - “you won’t see you child for a while”; an officer is being coercive when he says
or implies an untrue speculation of hardship to the suspect.
Melton - “be a man”
Berg - mother could be a suspect.
Henson - police threaten to arrest girlfriend
Lie to the suspect
Miranda - this is a hostile, adverse situation, and at least one person must tell the suspect
that the police are not their to be the suspect’s friends.
United States v. White, page 746; and page 106, chapter 3; The use of police as secret
agents is not a search, even though the police always lie to suspects about who they are
and whether they work for the police.
Conclusion: -- If a cop can lie when to a suspect when the suspect doesn’t know that he
is a cop, he can lie when the suspect knows he is a cop.
3. Was this a case of coercion by deprivation? No.
Miller - In the totality circumstances for understanding the consequences of waiving
one’s Miranda Rights, and of a confession are: age, maturity, intelligence, education,
physical illness, mental illness, previous experience with the criminal system, the length
and nature of detention, and deprivation of food or sleep. p. 722. 723.
Conclusion: -- No, This is not a case of deprivation, so Miller does not apply.
Facts about the defendant:
1. Was this a case where the suspect is not aware that he is waving his rights?
Colorado v. Connelly - Absent police conduct causally related to the confession, there is
simply no basis for concluding that any state actor has deprived a criminal defendant of
due process of law.”
2. Is this a case where a suspect’s rational intellect and free will are overborne?
No, there is no evidence that the suspect’s rights are being overborne.
Ledbetter v. Edwards, p. 745 - Confessions derived from police deceptions are
voluntary where (1) the suspect has properly received and acknowledged his rights, and
(2) officers do not use punishment or deprivation on the suspect, and (3) the interrogation
is not lengthy, so as to overbear the will of an innocent person to give a false confession.
III. Motion to Suppress, “Maybe I did handle the gun for a while”
Prior Acts: Miranda OK, Due Process??
C. What did the cop do?:
December 13, 2011 Criminal Procedure I Page 36 of 40
Class Notes
1. Was this coercive by a threat by third parties? No
Suspect had been threatened by the other group, but the police did not know about the threat, so
the threat it does not apply as coercion. Connelly.
2. Was this coercive by threat by the Cop? No?
In Re Roger E. G. v. Kirkpatrick - expressed promise with implication of favorable treatment.
Miller v. Fenton, Bram, When a threat of violence is made, here is no balancing, the confession
is involuntary. When a promise is made, a balance applies as to whether the promise will happen,
(then it is OK and not coercive,) as against the promise is false, and will not happen, then the
promise is coercive.
IV. Motion to Suppress, “OK, I was there.”
A. Miranda
B. Due Process
C. What did the cop do?:
Graves: I don’t know what happened. I wasn’t even there.
Friday: That’s not what you said last night.
Maybe the gun just went off accidentally and hit her. You can’t go to jail just for an accident.
It sounds like you’re lying. [8a] You’re facing a possible death penalty. If the jury finds you
guilty of murder, they then get to decide whether you get life imprisonment or death. If you just
get up there and lie, they might figure, “This guy doesn’t care about what he did, so why give
him any breaks?” But if you come clean, they might take it easier on you. [The Cop is not
promising anything, this a true statement.]
Friday: I guess the Joy Boys had it coming, since they killed one of your guys last month.
Facts about the defendant:
Suspect has gotten some sleep, but is nervous and shaking
“OK, I did fire the gun.”
Motion to Suppress: “I hid it in my garage.”
Friday: I guess the Joy Boys had it coming, since they killed one of your guys last month. [9]
Graves: Damn right. We had to get back at them, and my guys picked me to get 3 or 4 of them.
Friday: There’s a couple of Joy Boys in custody now. In your same cell block, in fact.
Graves: What? Can’t you move me?
Friday: We might, if you help us. [10] Where’s the gun?
Graves: I hid it in my garage.
Fulminante - the cop is not threatening him, but is promising to help him in return for
information. Since the cop ruled for Fulminante, the bar is lower for cop coercion.
Chapter 14 Line-ups
Why do courts allow counsel to suppress witness statements?
December 13, 2011 Criminal Procedure I Page 37 of 40
Class Notes
Problem - Home robbery.
I. Motion to Suppress Line-up Identification by A
A. Issue: Sixth Amendment Right to Counsel, Wade, the right to confront one’s accusers.
Why is this important: to protect the defendant from actions by the state that the
Muniz - arrested for drunk driving, not advised of rights, speech is not protected, but statements
of knowledge are.
In a line-up there are no Fifth Amendment or Fourth Amendment problems since the suspect has
been read his rights.
Wade reasons that there is a right to confront the witness at trial, and if there is a line-up, and the
attorney was not there, then the attorney cannot properly cross-examine the witness.
Compare Wade and Kirby -
Wade was indicted by a grand jury, that’s when the lawyer’s get involved.
Kirby was arrested on another charge: The Sixth Amendment right does not start until an
adversarial position takes place. Kirby cuts back on Wade. [A line-up of an arrestee, prior to
arrest on the charge reported by the victim is not unconstitutional for the absence of counsel,
where the line-up is absent of unnecessarily suggestive conduct conducive to irreparable
mistaken identification, Kirby v. Illinois (1972).]
Miranda says that a suspect must have the right to counsel at questioning, but Kirby says that
Miranda applies to the Fifth Amendment right against self-incrimination.
Egun was arrested, and booked, meaning that the charges initiates adversarial positions. An
indictment is a judicial action. Some states requires indictments, other permit a ‘complaint,’ or
‘information,’ filed with the court.
B. Due Process - acts by the cop that violate the suspect’s due process, as with the cop’s
interaction with the witness.
Foster - look at unnecessarily suggestive techniques. See Neil v. Bigger - do not show the victim
to just the suspect, other person’s must also be in place, or other methods present to ensure the
reliability of the identification.
If there is an improper line-up identification, then the court identification will likely be thrown
out.
Connor, who looks at a video-tape.
Egun has been arraigned. Under Kirby, the right to counsel should kick in, but this is not a live,
line-up, so Ash says counsel is not necessary. The dissent points out that the dangers of
suggestiveness are just a present. “If accurate reconstruction is possible, the risks inherent in any
confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to
cease to be "critical."”
The Court realizes something they has not identified in Wade, that a photo line-up is an
interview, and that there is a possibility in any interview that police will make a suggestion (See
Dibbs in hypo.) Since we have an adversarial system, counsel is not necessary, and stare decisis
applies, in that the court will not overrule Wade, but neither will the court follow Wade wholly
in its rulings.
December 13, 2011 Criminal Procedure I Page 38 of 40
Class Notes
The court in Ash did leave the possibility of a Due Process attack for suggestiveness on the
photo line-up. See Sanchez.
April 23, 2003
Rakas v. Illinois, U.S. Ill., (1978), 99 S.Ct. 421, 439 U.S. 128 p. 824.
Outline of Rakas - Motion to suppress the ammunition
I. Stop of the car - illegal seizure
A. Standing to challenge the seizure.
Rule: Rakas v. Illinois
1. Was Rakas seized? Yes
Rule: Mendenhall -
2. Was the stop legal? Yes - the stop of the car was legal.
C. Was the seizure reasonable? yes
Rule: Terry - Reasonable suspicion, call of robbery.
II. Search of the car
A. Standing to challenge the search.
1. Was Rakas searched? No - the owner’s car was searched, not Rakas.
2. Was there a legitimate expectation of privacy of the moving party? (Katz) No,
B. Was the search reasonable? No, Probable cause required and not present.
I. MOTION TO SUPPRESS THE EVIDENCE AGAINST ALFRED ALPHA
A. Entry into the home and search of Alpha
Standing of Alpha? He is a resident.
Intrusion on reasonable expectation of privacy of Alpha? Maybe no.
Open frat house, some cases say there is no reasonable expectation of privacy.
Reasonable search? No, no probable cause.
B. Arizona v. Hicks - moving something is not a seizure.
Taking control of something is a seizure.
Alpha does not own the drugs, but is given possession (a bailee.) Does he have control to
exclude people, owner is absent, so yes.
Reasonable? Was there probable cause to seize the white powder? Yes, he believed it to
be cocaine.
II MOTION TO SUPPRESS THE EVIDENCE AGAINST BETTY BETA
Standing of Beta? She is a not a resident.
Intrusion on reasonable expectation of privacy of Beta?
No - she does not have ownership, control, or a right to exclude anyone.
A babysitter has permission, access, use, dominion, and exclusive control over the household, so
a babysitter has a legitimate expectation of privacy in the home in which he sits.
People v, Moreno, (Cal. 1990) p. 848
No - Open frat house, some cases say there is no reasonable expectation of privacy.
An overnight guest in a home may claim Fourth Amendment protection, but one who is (was)
merely present with the consent of the householder may not. Minnesota v. Carter, (1998) p. 849
December 13, 2011 Criminal Procedure I Page 39 of 40
Class Notes
Yes- A houseguest in a home has permission, access, use, dominion over his room, and exclusive
control to his room, therefore a legitimate expectation of privacy in a home. (Rakas) Minnesota
v. Olson, (U.S. Minn., 1990) p. 846
III. MOTION TO SUPPRESS THE EVIDENCE AGAINST GARY GAMMA
Standing with reasonable expectation of privacy to the house? Yes, he was a resident, even
though he was not home. His reasonable expectation of privacy was diminished by the party, but
not absent.
Rawlings:
Rakas changed Jones to the extent that a legitimate presence was not enough. By the time of
Jones, the court had relied that claiming ownership at a motion to suppress could not be used at
trial. The court in Rawlings said that Rakas had eliminated the ownership arm of Jones and the
test was one of control, and after Rakas, the two notions (a legitimate expectation of privacy, and
free of government intrusion) are merged into one, whether government officials violate a
legitimate expectation of privacy. Since Rawlings had given up control to Cox, he did not have
standing to suppress the drugs.
Wong Son v. United States
Police arrested Hom Way who told them he got the drugs from Blackie Toy.
The police illegally a Laundromat and raided and arrested Blackie Toy
Blackie Toy lead the police to Johnnie Yee, and found drugs in his home.
Johnnie Yee led the police to Sea Dog, Wong Son and illegally arrested him
MOTION TO SUPPRESS STATEMENTS BY Blackie Toy
Blackie Toy was successful because of the illegal entry and arrest at his home/laundromat
coerced his statements.
MOTION TO SUPPRESS STATEMENTS and DRUGS of Johnnie Yee
Johnnie Yee was successful because of the illegal entry and search of Toy (poisonous tree) that
led them to Yee (fruit of the poisonous tree)
MOTION TO SUPPRESS STATEMENTS OF Wong Son
The agents entered the home on Mrs. Wong Sun’s consent and arrested Wong Sun. Again; a
search did not reveal any drugs.
He is trying to suppress his own confession. He was illegal arrested, so he had standing to his
arrest and statements. This was the poisonous tree to him, but because he was released for two
days, the relationship was attenuated (recall Palsgraf.)
Brown v. Illinois - Miranda Rights do not attenuate illegal search or seizure.
Police illegally arrest Brown, and he confesses after his Miranda warning. He motions to
suppress on ‘but for’ grounds of the illegal arrest. Denied in court and reversed by the Supreme
Court. The court gave factors that affect how things are attenuated, e.g., The time gap between
the arrest and the confession, the purpose and flagrancy (intensity) of the official misconduct are
all relevant, and any unusual superceding or intervening cause.
December 13, 2011 Criminal Procedure I Page 40 of 40
Class Notes
Problem 16
I. Heroin
A. Approach
B. Asks questions
C. Search pockets - no PC, poisonous tree!
Conclusion - no pc for the search so suppressed
II. Motion to Suppress the Statement, “Look, I’m not selling that stuff.”
A. Fruit of Miranda violation? No, not in custody.
B. Fruit of the search of the pockets.
1. Actual cause of search of the pockets? yes
2. Attenuation? Brown v. Illinois factors.
Time = close
Illegality = yes (no pc)
So suppress the statement.
III. Motion to Suppress the Stash’s Note
Frenchy has no standing to contest the note directly
A. Frenchy has standing as Stash’s note being the fruit of his statement.
Attenuation? No, it is normal to talk about other people.
B. Inevitable Discovery? Warrant for Stash’s arrest. See Nix v. Williams.
IV. Motion to Suppress the Statement, “Yes, but … raffle statements, not heroin.”
A. Search of the pockets, still has standing.
“But for” cause - yes
Attenuation? More time has passed.
B. Miranda. What about the note. Suppressed as a Miranda violation.
V. Motion to suppress the counterfeit note
A. Search of the pockets as fruit of the poisonous tree.
Attenuation? More time, defendant’s idea, so yes, attenuated.
B. New poisonous tree in the Miranda violation.
Oregon v. Elstad - weirdest case in the whole book.
Court assumed Elstad was in custody in his home when he confessed.
That is suppressed. Then Elstad is given his rights, and he confesses again.
Elstad says that the Second confession the fruit of the first illegal confession.
The police say that he was read his Miranda rights, and that attenuated the taint
Miranda is a prophylactic warning, not a constitutional requirement, so a Miranda
violation is not a constitutional violation requiring exclusion absent a due process
violation. See Dickerson in Chapter 10 for law professor’s opinion.
So, finding the counterfeit bills is not the fruit of the a Miranda violation and need not be
suppressed.