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					Con Crim Pro Detailed Outline
Spring ‘05 - Rudovsky


4TH AMENDMENT: ...................................................................................................... 17
5TH AMENDMENT: ...................................................................................................... 17
6TH AMENDMENT: ...................................................................................................... 17
I.   6TH A. RIGHT TO JURY TRIAL: BASED ON MAX POSSIBLE SENTENCE .... 17
         A. DUE PROCESS: ......................................................................................................... 17
                  Duncan v. LA (391 U.S. 145) If Possibility of Jail is 6 Months or More, Must offer a Jury
                        Trial.......................................................................................................................... 17
              i. Federal Jury Trial Requirements: .................................................................................. 17
              ii. State Jury Trial Permeations ......................................................................................... 17
II.      6TH A. RIGHT TO COUNSEL: DETERMINED BY ACTUAL SENTENCE ......... 17
         A. DUE PROCESS OLD CASE LAW .................................................................................. 17
                     Betts v. Brady (1942): (Right to Counsel was Discretion of Judge) leave right to counsel
                           to the discretion of the judge on a case by case determination. Fundamental
                           Fairness doesn‘t require a lawyer ........................................................................... 17
                     Powell v. Alabama (1932): (Capital Cases: counsel must be Required) ....................... 17
                     Gideon v. Wainright 372 U.S. 335 (1963) p. 107 (right to counsel guaranteed, overrules
                           Betts v. Brady) ......................................................................................................... 17
         B. STANDARD: FUNDAMENTAL FAIRNESS ....................................................................... 17
              i.     Post-Gideon Clarifications ............................................................................................. 17
                     Argersinger v. Hamlin (1972): Court resolves this by saying that if the judge IMPOSES
                          ANY incarceration, counsel is required. But if the judge doesn‘t impose jail, no
                          counsel is required. ................................................................................................. 17
                     Alabama v. Shelton (2002): D must have a lawyer if the state wants to reserve the right
                          to put D in jail for parole violation, even if he only gets parole in the first instance 17
         C. CURRENT RULE: NO PRISON UNLESS ATTY REP. ....................................................... 17
III.     DUE PROCESS/EQUAL PROTECTION: .......................................................... 17
         A. 6TH AMENDMENT RIGHT TO COUNSEL PER SE RULE ................................................. 17
         B. RIGHT TO EFFECTIVE COUNSEL ................................................................................. 17
              i.     Limited By Harmless Error Doctrine: ............................................................................ 18
                                 th
              ii.    Procedural 6 Amendment Violation ............................................................................ 18
              iii.   Harmless Error Test On Appeal: Court Examines: ...................................................... 18
              iv.    Constitutional Error @ Trial: Collateral Review: Habeas Corpus .............................. 18
         C. 2- PRONG TEST ......................................................................................................... 18
                     Strickland v. Washington 466 U.S. 668 p. 158 (Right to Effective Counsel, What
                           standards to impose, How to Remedy: Court is deferential to Articulation of
                           Stratigic Decision) ................................................................................................... 18
                     Marshall Dissent in Strickland Test: .................................................................................. 18
              i.     General Test: did the attorney reasonably prepare the case as per current
                     standards ......................................................................................................................... 18
         D. STRATEGIC OR TACTICAL DECISION TEST: PROCEDURAL ERROR ................................ 18
              i. Performance Prong: What A Reasonably Effective Lawyer Would Have Done ....... 18
              ii. Prejudice Prong: Reasonable likelihood on a Different Result: ................................ 18
         E. PERFORMANCE PRONG: FAILURE TO INVESTIGATE ..................................................... 18
                     Williams v. Taylor (2000): (Failure to Investigate Meets nightmarish childhood meets
                           Strickland Standard ................................................................................................. 18
                     Wiggins v. Smith (2003): (Failure to investigate D‘s child Abuse: Reasonable that
                           Lawyer would‘ve not investigated) .......................................................................... 18
         F. PREJUDICE PRONG: .................................................................................................. 18
              i.  Prejudice Prong: Error in Sentencing is Prejudice ..................................................... 18
                  Glover v. United States (2001): Any error made in sentencing, which adds sentencing,
                         will be enough for the prejudice prong. ................................................................... 19
              ii. Prejudice Prong: Ineffective Assistance in Plea Bargaining ...................................... 19
                  Hill v. Lockhart (1985): The Strickland 2-part test applies to ineffective assistance in
                         plea bargaining cases. ............................................................................................ 19


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              iii. Prejudice Prong: Failure to Make a Motion to Exclude Evidence, Regardless of
                   Accuracy of Evidence ..................................................................................................... 19
                   Kimmelman v. Morrison (1986): Lawyer‘s failure to timely make a motion to exclude
                        illegally seized evidence is deficient under Strickland, even though evidence was
                        accurate. .................................................................................................................. 19
                                                                                                                                           th
              iv. Prejudice Prong: Intervening Law which Nullifies Lawyer Mistake Nullifies 6
                   Amendment Claims......................................................................................................... 19
                   Lockhart v. Fretwell (1993): If an intervening change in the law means that the outcome
                        would be no different today than it was when the lawyer made a mistake, it is not
                                                                                                                                     th
                        an unfair outcome and therefore doesn‘t count as prejudice under the 6 Am. ..... 19
         G. INSTRUCTIONS NOT TO LIE IS NOT: DEFICIENT LAWYERING ......................................... 19
              i.  P’s Duty to Disclose if W Lies on Stand or Changes Story ........................................ 19
                  Nix v. Whiteside (1986): A lawyer telling D that if he lies on the witness stand the lawyer
                        will turn D in does not qualify as deficient lawyering b/c all the lawyer did was
                        convince D not to lie. ............................................................................................... 19
              ii. Lying on the Stand: Must Disclose in Civil Cases ....................................................... 19
IV.      HISTORICAL PREFACE TO BOYD: FORCIBLE SEIZURE & WRITS OF
         ASSISTANCE .................................................................................................... 19
         A. 4TH AMENDMENT: RIGHT AGAINST UNREASONABLE SEARCHES & SEIZURES ............... 19
         B. 5TH AMENDMENT: GENERAL RIGHT AGAINST SELF-INCRIMINATION: NO PERSON SHALL
            BE COMPELLED TO BE A WITNESS AGAINST HIMSELF.................................................... 19
                                                                                      th
                   Boyd v. United States (1886) (Overturned 4 Amendment Right to Personalty, but not
                                                     th
                        instrumentalities of Crime. 5 Amendment Right to not produce Documents) ....... 19
         C. POST-BOYD DEVELOPMENTS: VERY LITTLE OF BOYD IS LEFT...................................... 19
                   Gouled v. United States (1921): (a Warrant Can‘t be a Fishing Expedition, it must
                        precisely and specifically state what the cops are looking for) ............................... 19
                   Olmstead (1927): Wiretapping (Had held that there was no physical intrusion of private
                        property, so no actual trespass of property) ........................................................... 19
         D. REGULATORY STATE DESTROYS BOYD ...................................................................... 20
                                            th
                   Hale case: No 5 Amendment for Corporations: can be compelled to produce
                         documents: including Tax Records. ........................................................................ 20
V.       THE MODERN ERA: THE UNDERMINING OF BOYD, NOT A COMPLETE
         REVERSAL, BUT CLOSE. ................................................................................ 20
         A. 4TH AMENDMENT: IS NOW THE ZONE OF PRIVACY: ..................................................... 20
                     th
              i. 4 Amendment: ............................................................................................................... 20
                   th
              ii. 5 Amendment: ............................................................................................................... 20
                  Schmerber v. California (1966): The court excused lack of a warrant b‘c of Exigent
                      circumstances. The Blood Alcohol level would‘ve gone down if they had to wait. . 20
         B. OVERRULES EVIDENCE V. INSTRUMENTALITY DISTINCTION: ......................................... 20
                     th
              i. 4 Amendment: ............................................................................................................... 20
                   th
              ii. 5 Amendment ................................................................................................................ 20
                  Warden v. Hayden 1967): Court Overrules difference between Mere Evidence and
                       Instrumentalities. Mere Evidence, just like Instrumentalities, can be seized as long
                       as the seizure is reasonable. .................................................................................. 20
                  Berger v. New York (1967) p. 288: A statute authorizing ex parte orders for electronic
                       eavesdropping is invalid b/c it doesn‘t require that the warrant be particular and
                       there‘s no provision for avoiding private conversations. Ct. applies the Hayden 4th
                       Am balancing test .................................................................................................... 20
VI.      4TH AMENDMENT THE EXCLUSIONARY RULE ............................................ 20
         A. PRE-MAPP HISTORY: ................................................................................................ 20
                   Weeks v. United States (1914): If Evidence is seized illegally, it can be excluded from
                        court......................................................................................................................... 20
                   Wolf v. Colorado (1949): The ER does not apply to the states. .................................... 20
         B. MAPP EXCLUSIONARY RULE: ..................................................................................... 20


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                                                                                                           th
                     Mapp v. Ohio (1961) (Weeks is incorporated into the 14 Amendment and the ER is
                                                 th
                         applied to the States) 4 Amendment Right to Privacy is a Personal Right,
                         demands a Personal Remedy. Want to Deter Illegal Police Activity and leaves
                         them no worse off than if they‘d originally complied. .............................................. 20
VII.     EXCLUSION OF UNREASONABLE SEARCHES & SEIZURES ...................... 20
         A. MEANING OF SEARCHES ............................................................................................ 20
              i.     Pre-Katz Decisions: ........................................................................................................ 20
                     Hoffa v. US: an unbugged agent who becomes a confidante of ∆ involves no reasonable
                                                                                            th
                           expectation of Privacy (REP) protected by the 4 .................................................. 21
                     Lopez v. US: bugged agent who secretly records conversation doesn‘t violate ............. 21
                     On Lee v. US: transmission of ∆‘s conversation via bugged agent does not violate ....... 21
         B. PROTECTION UNDER A REASONABLE EXPECTATION OF PRIVACY ................................ 21
                     Katz v. United States (1967) The 4th Am protects against searches and seizures
                           wherever D has a justifiable (i.e. reasonable) expectation of privacy. So to listen to
                           electronically eavesdrop on a phone booth, the police must have probable cause
                           and get a warrant. ................................................................................................... 21
              i.     Seizure of property: ........................................................................................................ 21
         C. EXCEPTIONS TO REASONABLE EXPECTATION OF PRIVACY: ......................................... 21
              i.     Assumption of Risk ........................................................................................................ 21
                     U.S. v. White (1971) The gov‘t may use a third party informant and tape the
                           conversation. D assumes Risk by Talking to 3d party ............................................ 21
              ii.    The Open Field Doctrine ................................................................................................ 21
                     Oliver v. United States (1984): D has no expectation of privacy in open fields, so the
                           gov‘t can search land a mile from the road with lots of no trespassing signs up .... 21
                     US v. Dunn: DEA agents made several warrantless entries onto ∆‘s ranch—approached
                           and looked into but didn‘t enter two barns that were 50 from the fence surrounding
                           the residence—had to cross barbed wire and wooden fences to get where they did
                           ................................................................................................................................. 21
              iii.   Searches of trash left on the sidewalk.......................................................................... 21
                     California v. Greenwood (1988): There is no expectation of privacy re trash b/c it is
                           readily accessible to animals, snoops, members of the public, etc. ....................... 21
              iv.    Bank Records .................................................................................................................. 21
                     United States v. Miller (1976): A bank depositor has no expectation of privacy re bank
                           records because he ―takes the risk, in revealing his affairs to another [i.e. the bank],
                           that the info will be conveyed to the government. ................................................... 21
              v.     The View From Above .................................................................................................... 21
                     California v. Ciraolo (1986): If a plane is in normal airspace, police may surveil your
                           back yard. ................................................................................................................ 21
                     Dow Chemical v. US: EPA employs aerial photographer since plant refused inspection
                           and Court OK‘s. Open Field and Technology to enhance vision not a constitutional
                           problem. .................................................................................................................. 21
              vi.    Phone Records ................................................................................................................ 21
                     (Smith v. Maryland (1979)) This is also true re phone records kept by the phone
                           company since #‘s you dial are available to the Phone Company .......................... 21
              vii.   PA Rejects the Trash, Bank and White ......................................................................... 21
         D. EXPANSION: PHYSICAL INVASION IS MORE INVASIVE THAN VISUAL OBSERVATION ....... 22
              i.     Investigatory Procedures that are More Invasive than observation: ........................ 22
                     Bond v. United States (2000): POs may not manipulate bags to feel for drugs: phyiscial
                           manipulation is more invasive than Visual Invasion ................................................ 22
                     Kyllo v. United States (2001): Gov‘t can‘t use a thermal imager without a warrant to see
                           what‘s going on in a house b/c there is a reasonable expectation of privacy re your
                           activities in the house. Measuring heat loss is an intrusion into a constitutionally
                           protected area ......................................................................................................... 22
         E. THE MEANING OF SEIZURES .................................................................................... 22
              i. Seizure of Person:........................................................................................................... 22
              ii. Objective Reasonable Person Test: .............................................................................. 22
         F. THE SEARCH OR SEIZURE MUST BE REASONABLE ...................................................... 22
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              i.    Warrant ............................................................................................................................. 22
         G. THE CONTINUUM: THE MORE PRIVACY THAT’S INVADED, THE HIGHER DEGREE OF CAUSE
            IS NEEDED TO MAKE THAT INVASION. .......................................................................... 22
         H. 3 TYPES OF POLICE INTERACTIONS WITH CITIZENS: ..................................................... 22
              i.  The line between search and no search or seizure and no seizure is btwn
                  Encounter & Detention. .................................................................................................. 22
              ii. Investigative Detentions ................................................................................................. 22
VIII.    ARREST:............................................................................................................ 22
         A. IT’S AN OBJECTIVELY REASONABLE TEST → WOULD A REASONABLE PERSON IN D’S
            SHOES FEEL FREE TO SAY NO TO THE POLICE? ............................................................ 22
                 Florida v. Bostick (1991):To determine if police request to search a bus passenger‘s
                       bags is a seizure, look to see if a reasonable person in D‘s position would feel free
                       to deny POs consent to search ............................................................................... 22
                 Airport Profile Cases: ........................................................................................................ 22
            i. Policy: Deterrence v. Quantum of Privacy ................................................................... 22
         B. ONCE THE OFFICER POINTS WEAPONS, OR SAYS TO STOP IT’S A SEIZURE ................. 22
            i. Factors That Suggest Seizure: ...................................................................................... 22
            ii. Two things must happen for it to be a seizure: ........................................................... 22
            iii. Factors to Look For: ....................................................................................................... 23
                 United States v. Mendenhall (1980): Justice Stewart gave examples of factors the
                       presence of which might suggest that a give police-citizen encounter constitutes a
                       seizure: .................................................................................................................... 23
                 Brower v. County of Inyo (1989): Intentional acquisition of the body of a person
                       (through a roadblock that kills him) is a seizure ...................................................... 23
                 California v. Hodari (1991): If D runs away and POs give chase, it‘s not a seizure
                       unless POs actually catch D. If D drops evidence while POs are chasing him, then
                       POs have probable cause and exigent circumstances to make the stop. .............. 23
IX.      PROBABLE CAUSE & WARRANTS FOR SEARCHES ................................... 23
         A. PROBABLE CAUSE: PROBABLE CAUSE IS A STANDARD OF PROOF THAT REQUIRES MORE
            THAN BARE SUSPICION AND JUSTIFIES A SEARCH OR SEIZURE. ..................................... 23
              i.    Probable cause exists where the facts and circumstances within the officer’s
                    knowledge and of which they had reasonably trustworthy information are sufficient
                    in themselves to warrant a man of reasonable caution to hold the belief that an
                    offense has been or is being committed ...................................................................... 23
         B. FACTORS FOR PROBABLE CAUSE TO AN ARREST: ....................................................... 23
         C. FACTORS FOR A SEARCH: .......................................................................................... 23
         D. THE WARRANT CLAUSE AND PROBABLE CAUSE ......................................................... 23
              i.    Early Probable Cause Cases ......................................................................................... 23
                    Draper v. United States (1958): An informant‘s detailed description of innocent activities
                           creates PC if his insight into those innocent actions informs POs that they indicate
                           illegal activities. ....................................................................................................... 23
                    Aguilar & Spinelli: For an informant‘s info to be a legitimate basis for probable cause,
                           there must be: 2 Factors (courts later reject strict 2 Prong Test for Gates‘ Totality of
                           Circumstances Test) ............................................................................................... 23
                    Illinois v. Gates (1983) For an informant‘s information to create probable cause, look to
                           see whether the totality of the circumstances, including the informant‘s reliability
                           and his basis of knowledge, creates a fair probability that contraband or evidence
                           of a crime will be found in a particular place. .......................................................... 23
         E. RULE: MUST HAVE WARRANT & PROBABLE CAUSE .................................................... 23
X.       EXCEPTIONS TO THE WARRANT AND PC REQUIREMENTS ...................... 24
         A. RARE: EXCEPTIONS TO PROBABLE CAUSE TO GET A WARRANT .................................. 24
         B. POLICE PROCEDURES FOR EXIGENT CIRCUMSTANCES WITHOUT A WARRANT .............. 24
         C. MUST HAVE WARRANT (AND THEREFORE PROBABLE CAUSE)UNLESS ONE OF THE
            FOLLOWING EXCEPTIONS .......................................................................................... 24
         D. EXIGENT CIRCUMSTANCES ........................................................................................ 24

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                   Mincey v. Arizona Pg. 406 (Search of Crime Scene (home) immediately after crime is
                        OK, but Future Searches require a warrant) ........................................................... 24
         E. REASONS FOR THE WARRANT REQ: ............................................................................ 24
         F. FLEEING SUSPECTS .................................................................................................. 24
                   Warden v. Hayden (1967): If suspect is fleeing into House, not necessary to wait since
                       would endanger other PO ....................................................................................... 24
         G. DESTRUCTION OF EVIDENCE ...................................................................................... 24
         H. CARETAKING FUNCTIONS EXCEPTION......................................................................... 24
                   When police go into a house not to arrest but to protect someone inside, they do not
                       need a warrant. If someone might be in the house having a heartattack, etc.
                       Courts generally allow a little less than probable cause. ........................................ 24
         I.   PLAIN VIEW EXCEPTION............................................................................................. 24
              i.   Requirements of plain view: .......................................................................................... 24
                   Horton v. California: Evidence Found in plain view may be seized without a warrant, if
                        other warrant legitimately places PO within the House. .......................................... 25
         J. LIMITS ON PLAIN VIEW:.............................................................................................. 25
                   Arizona v. Hicks (1987): If a PO must manipulate evidence to find out if it is stolen, the
                        evidence is not in plain view (can‘t turn stereo over to look at serial #) .................. 25
XI.      AUTOMOBILE SEARCHES (4TH AMENDMENT DOCTRINE): STILL
         EXCEPTIONS TO WARRANT ........................................................................... 25
         A.   REQUIREMENTS: ....................................................................................................... 25
         B.   RATIONALE: .............................................................................................................. 25
         C.   SCOPE: .................................................................................................................... 25
         D.   PRE-ACCEVEDO CASES: AUTOMOBILE SEARCHES ...................................................... 25
                   Carroll v. United States (1925): PO can search a car he‘s following for contraband b/c
                        there are exigent circumstances – D may destroy ev ............................................. 25
         E. BRIGHT LINE RULE OF SAFETY FROM CHAMBERS: CAN SEARCH IF IMPOUNDED ........... 25
                   Chambers: (Taking already stopped car into custody, does not deny exigent
                       circumstances. Look to exigent circumstances @ Time of arrest & not @ time of
                       search) .................................................................................................................... 25
         F. SEARCH OF LUGGAGE/BAG/BACKPACK: .................................................................... 25
              i.   Police can hold the item, but they need a warrant for the search. ............................ 26
                   United States v. Ross (1982): Warrantless search of an automobile under the Carroll
                         doctrine could include a search of a container or package found inside the car
                         when such a search was supported by probable cause. ........................................ 26
                   United States v. Chadwick (1977): Movable luggage not connected with any car (in this
                         case a 200 pound footlocker being transported) may not be searched because a
                         person expects more privacy in his luggage and personal effects than he does in
                         his automobile ......................................................................................................... 26
                   Arkansas v. Sanders (1979): If PO has PC re personal luggage with in a car but not re
                         the car itself, a search of the luggage requires a warrant b/c of heightened privacy
                         associated with luggage. ......................................................................................... 26
              ii. Under the Carroll doctrine, if you had PC re the car you could search the car and
                   any bags found in it. But if you had PC re the bags and not the car, you couldn’t
                   search without a warrant. ............................................................................................... 26
              iii. This distinction turned on the fact that if you see someone walking down the street
                   carrying a bag, you have to get a warrant to search the container, so you should
                   have to get one to search a bag in a car. ..................................................................... 26
         G. ACEVEDO DOCTRINE: SEARCH ANYTHING IN CAR ....................................................... 26
                   California v. Acevedo (1991) Once there is PC to believe there‘s contraband in the car,
                         combination of exigency and reduced expectation of privacy mean that PO can
                         search anything in car ............................................................................................. 26
         H. IF THERE’S PROBABLE CAUSE, NO WARRANT IS REQUIRED FOR ENTRY INTO THE CAR .... 26
              i.   No need to get a warrant even if there’s a closed container ...................................... 26



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                   Wyoming v. Houghton (1999): When police have PC re a driver‘s illegal activites, they
                       may search bags in the car that belong to a passenger, even if the police have no
                       PC re the passenger. .............................................................................................. 26
         I.   RULE FOR CAR SEARCHES: PROBABLE CAUSE TO SEARCH A CAR: ............................ 26
                   Aberra: (Drugs @ a bar does not allow PO to search the patrons) ................................ 26
                   Del Rey: Cops get info that there‘s contraband in the car, so they go to the car and
                        search the passenger to get the contraband. Can‘t search the passenger, when
                        you‘ve got no probable cause to the person. In Acevedo it‘s not searching the
                        person, but the handbag, and you don‘t know whose handbag it is? ..................... 26
                   Jacket ............................................................................................................................... 26
                   Maryland v. Pringold If there is PC to stop a car, and contraband is found in the car,
                        then PC for arrest extends to all passengers in car as well, not just driver ............ 26
XII.     ARREST = SEIZURE OF PERSON ................................................................... 26
         A. ARREST WARRANT NOT NECESSARY BEFORE MAKING AN ARREST............................. 26
                   United States v. Watson (1976): Police do Not Need to Get an Arrest Warrant Before
                        Making an Arrest: Bright Line Rule to avoid unneccessary litigation over what
                        ―exigent‖ standards existed to allow arrest ............................................................. 27
         B. ARREST WARRANT (OF THE PERSON): WHEN INVASION OF HOME IS 4TH AMENDMENT ... 27
                   Payton v. New York (1980): Warrantless arrests in private homes are unconstitutional.
                        (NY law that doesn‘t require arrest warrant to arrest in someone‘s home is
                        unconstitutional) ...................................................................................................... 27
         C. ARREST WARRANT DOESN’T ALLOW SEARCH OF HOUSE ............................................ 27
         D. EXPECTATION OF PRIVACY IS A QUESTION OF STANDING ........................................... 27
              i.   An Independent privacy right: must be shown in the 3d place location. .................. 27
                   Steagald v. United States (1981): If PO suspects that the subject of their arrest warrant
                        is in another person‘s home, they must get a search warrant to go to that person‘s
                        home and arrest the original suspect ...................................................................... 27
                   Riverside v. M Laughlin (1991): If Arrested without a Warrant, a Probable Cause
                        Hearing Must be Held within 48 Hours of Arrest ..................................................... 27
XIII.    SEARCHES INCIDENT TO ARREST (SITA)..................................................... 27
         E. LIMITED TO TIME AND PLACE AROUND THE ARREST .................................................... 27
                   Chimel v. California (1969): A PO may make a search incident to arrest (SITA), but it
                       must be limited to the time around the arrest and the area in which the arrest takes
                       place. ....................................................................................................................... 27
         F. SITA ALLOWED, REGARDLESS OF LACK OF EXIGENT CIRCUMSTANCES ....................... 27
                   United States v. Robinson (1973): The gov‘t has a per se right to search a person they
                        are arresting, regardless of whether there is any actual danger of destruction of
                        evidence or threat to PO safety. .............................................................................. 27
         G. ARREST IN A CAR ALLOWS SEARCH OF CONTAINERS: ................................................ 27
                   New York v. Belton (1981): When you arrest someone in a car, the police may always
                        search the car and any containers found therein. ................................................... 27
         A. SEARCH OF CAR ALLOWED EVEN WHEN PERSON ISN’T IN CAR WHEN ARRESTED ........ 27
                   Thornton v. United States: Even if Person is Outside the Car, can Still do a Stop and
                        Frisk and Search the Car ........................................................................................ 27
                   Chimel, wouldn‘t it allow greater search of home? .......................................................... 28
                   Robinson: anyone who can be grabbed can be searched .............................................. 28
                   Belton: incident to arrest, anything in the car can be searched. ...................................... 28
         B. SOME INSTANCES THAT THE SEARCH CAN BE DONE ON BOTH PROBABLE CAUSE AND
            SEARCH INCIDENT TO ARREST .................................................................................... 28
         C. INVENTORY SEARCHES: ............................................................................................. 28
XIV.     PRE-TEXTUAL ARRESTS ARE VALID IF THERE IS PROBABLE CAUSE FOR
         THE ARREST..................................................................................................... 28
         A. VALID STOP, THEN SITA WILL ALMOST ALWAYS BE VALID .......................................... 28
                   Wren v. U.S (1996): Objective reasonableness for Valid Stop ........................................ 28
         B. RACE & RACIAL PROFILING: ...................................................................................... 28

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              i. 14th Amendment Violation: does equal protection suppress the evidence?........... 28
              ii. State Court’s, have analyzed under their 4th Amendments, that if it’s racial
                   profiling, than it’s an unreasonable arrest and that can lead to suppression of
                   evidence ........................................................................................................................... 28
              iii. civil suits claiming that there was a pullover based on race ..................................... 28
                   People v. Soto: experts and statisticians were used to prove there was racial profiling on
                          the NJ Turnpike. ...................................................................................................... 28
         C. NO NEED FOR REASONABLENESS IF THERE IS PROBABLE CAUSE FOR THE STOP ......... 28
                    Atwater v. Lago Vista (2001): Officer Authorized Under State Law to Make an Arrest is
                         Authorized to Make the Arrest ................................................................................. 28
                    Knowles v. Iowa: There is no Search Incident to Citation. If Traffic Ticket is Given and
                         No Arrest, Probable Cause Needs to Exist to Search the Car ............................... 28
         D. LIMITATIONS TO SITA................................................................................................ 28
              i.    Exigent Circumstances Which Allow Search of Person Incident to Arrest, but NOT
                    Search of Home ............................................................................................................... 28
                    Welsh v. Wisconsin (1984): If police have PC to suspect D and exigent circumstances
                         that would normally allow a search of the person, if the crime is minor the police
                         may still not search D‘s home without a warrant. .................................................... 29
XV.      STOP AND FRISK AND INVESTIGATIVE DETENTIONS ................................ 29
         A. MAY STOP AND FRISK IF PO HAS REASONABLE SUSPICION TO SUSPECT D OF CRIME .. 29
                    Terry v. Ohio (1967) If PO has reasonable suspicion to suspect D of a crime, he may
                          stop and frisk. .......................................................................................................... 29
                    Dickerson: If a PO is frisking for weapons and feels other kinds of contraband (like
                          drugs), the PO can search the pocket or whatever as long as the PO immediately
                          suspected drugs when he felt the pocket. ............................................................... 29
                    Dunaway v. New York (1979): Taking a suspect into custody (to the station house)
                          always requires probable cause, regardless of whether you make a formal arrest.
                          → You cannot make a custodial seizure into a Terry stop simply by not calling it an
                          arrest. ...................................................................................................................... 29
                    Florida v, Royer (1983): When PO use a drug courier profile to stop a suspect and then
                          escort him to a room, at some point this becomes a full seizure, and so the fruits of
                          the search must be suppressed. ............................................................................. 29
              i.    Note: The Ct swings back and forth between bright line rules and standards ........ 29
                    Mimms and Wilson: Mimms: stopped for expired license plate, bulge in jacket A bright
                          line rule. A PO can order a driver or passenger out of the car whenever a PO
                          stops him (Mimms is drivers, Wilson is passengers) .............................................. 29
                    U.S. v. Sharpe: A standard: The length of time it takes to make a detention
                          unreasonable depends on the specifics of the case → so sometimes a stop that
                          lasts an hour is not equal to arrest. ......................................................................... 29
                    Maryland v. Buie (1990): A bright line rule: POs may ―as a precautionary matter and
                          without PC or reasonable suspicion, look in closets and other spaces immediately
                          adjoining the place of arrest from which an attack could be immediately launched.
                          ................................................................................................................................. 29
                    Michigan v. Long (1983): When a PO stops someone in a car, he may search the car
                          b/c even though the suspect may be outside the car when he‘s dealing with the
                          PO, as soon as D gets back into the car he has access to any weapons that may
                          be hidden there. ...................................................................................................... 29
         B. WHAT CONSTITUTIONS REASONABLE SUSPICION........................................................ 29
              i.  Anonymous Tips ............................................................................................................. 29
                  Florida v. J.L (2000): without other evidence anonymous tip does not create reasonable
                         suspicion ................................................................................................................. 30
              ii. Flights .............................................................................................................................. 30
                  Illinois v. Wardlow: Flight Can create reasonable Suspicion: Headlong Flight PLus
                         Something Else Will Create Reasonable Suspicion ............................................... 30
                  United States v. Arvizu (2002): (Reasonable Suspicion exists for minivan travelling over
                         the border: often used to transport drugs) – Special deference to Border Patrols . 30


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                   U.S. v. Flores-Montano (2004): (search of car‘s gas tank is no more invasive than
                         search of rest of car) ............................................................................................... 30
              iii. Flight v. Refusal to Talk to the Police ........................................................................... 30
              iv. Refusal to Identify Oneself is Reasonable Grounds for Arrest .................................. 30
                              th
                   Hibbel v. 6 Judicial District: Refusal to ID oneself is reasonable Grounds for Arrest if
                         Stop & ID legislation of the state is Ok. Balances the Intrusion, b‘c reasons for stop
                         can be considered ................................................................................................... 30
XVI.     SEARCHES AND SEIZURES WITHOUT CAUSE OR SUSPICION .................. 30
         A. ROADBLOCKS ........................................................................................................... 30
              i.    Pre-Edmond cases: As long as Cops have No Discretion and it’s Public Safety
                    Reason, then ok. ............................................................................................................. 30
                    Deleware v. Prouse (1979): The Ct. struck down as unreasonable DUI checkpoints
                          where every tenth driver or anyone the PO felt should be pulled over, at officer‘s
                          discretion was pulled aside and checked for drunkness. ........................................ 30
                    Michigan Dept. of State Police v. Sitz (1990): A RB set up to protect public safety
                          where police have no discretion is OK .................................................................... 30
                    United States v. Martinez-Fuentes (1976): Immigration checkpoints at the border are
                          OK b/c the problem they‘re trying to combat (illegal entry into the U.S.) Since it is
                          so difficult to fight..................................................................................................... 30
                    Indianapolis v. Edmond (2000): Drug Checkpoints Not Ok, not a Safety Concern Like
                          DUI‘s ........................................................................................................................ 30
         B. CONSENT TO SEARCH ............................................................................................... 30
                    Illinois v. Lidster Case: When someone consents to a search for which police would
                           otherwise need PC, it is a waiver of 4th Am rights and therefore the search is valid
                           ................................................................................................................................. 30
                    Kabbalas: There was a traffic violation and the cops pull over the car, and then they
                           bring a drug detecting dog. Drug sniffing dog is not a search. .............................. 30
                    In Kylo: use of a heat detector to ID activity, depicts innocent and guilty activity, with
                           dogs, they only expose contraband. ....................................................................... 30
         C. COERCION OF CONSENT ............................................................................................ 30
              i.    Knowledge is Not Dispositive ........................................................................................ 30
                    Scheneckloth v. Bustamonte: consent still valid for PO search of car, even if D didn‘t
                         know if he could‘ve refosed the search. .................................................................. 30
         D. THIRD PARTY CONSENT............................................................................................. 30
              i. A wife may give consent for POs to search H’s stuff under two theories: ............... 31
              ii. Shared authority → ......................................................................................................... 31
              iii. Assumption of risk → ..................................................................................................... 31
                                                                                                                         rd
                   Illinois v. Rodriguez (1990):If PO has a reasonable belief that a 3 party has a right to
                                                                                                                                                    rd
                          give consent for another, the resulting search is valid, even if it turns out the 3
                          party didn‘t in fact have that authority. .................................................................... 31
                   Florida v. Jimeno (1991): When D gives consent to search his car, that consent
                          extends to everything it is reasonable to assume is included in the car, such as
                          closed bags. But it may not extend to locked suitcases......................................... 31
                   Ohio v. Robinette (1996):When a PO makes a traffic stop and then asks D if he will
                          consent to a search, it doesn‘t matter if D knows that he has the right to leave b/c
                          the traffic stop is over. Knowledge is just one element in determining if consent is
                          valid. ........................................................................................................................ 31
XVII. LIMITS TO THE EXCLUSIONARY RULE ......................................................... 31
         E. MAPP PUT FORTH THREE RATIONALES FOR THE ER, AND WAS NOT CLEAR ABOUT WHICH
            IT WAS ADOPTING, OR WHETHER THE RULE WAS CONSTITUTIONALLY MANDATED. ......... 31
         F. AFTER MAPP, THE CT. BEGAN TO LIMIT THE EXTENT OF THE ER................................... 31
              i.  Limited its use in habeas cases → the deterrence is too attenuated in a federal
                                                      th
                  claim that a state PO violated D’s 4 Am rights. ......................................................... 31
              ii. ER is not applicable to grand jury hearings ................................................................. 31
         G. GOOD FAITH EXCEPTION ........................................................................................... 31


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                    United States v. Leon (1984): PO reasonably relies on Good faith warrant, actual
                           validity of warrant is immaterial and evidence will not be excluded ........................ 31
                    Illinois v. Krull (1987): The good faith exception applies to searches pursuant to state
                           statutes that are later determined to be unconstitutional ........................................ 31
                    Arizona v. Evans (1995): Drugs seized in a search incident to arrest when the arrest
                           was made based on mistaken information that a warrant existed should not be
                           excluded if the PO had a good faith belief that the warrant was existed ................ 31
         H. STANDING DOCTRINE ................................................................................................ 31
                    The Ct. rejected the early rule in Rakas v. Illinois (1978): D has standing if D had a
                         reasonable expectation of privacy in what was being searched. ............................ 31
         I.   REASONABLE EXPECTATION OF PRIVACY = STANDING ................................................ 31
                    Minnesota v. Carter (Commercial Visitors Do Not have Reasonable Expectation of
                         Privacy in the House They are Visiting) .................................................................. 31
                    United States v. Payner (1980): It doesn‘t matter if POs were manipulating the standing
                         rules. If D doesn‘t have standing he can‘t object to the search. ............................ 31
XVIII. EXTENT OF EXCLUSIONARY RULE ............................................................... 32
         J. FRUIT OF THE POISONOUS TREE (FOPT) ................................................................... 32
              i.    Searches or Seizures: Additional Searches or Seizures Resulting from Initial Illegal
                    Search or Seizure is Excluded ....................................................................................... 32
                    Wong Sun v. United States (1963): initial illegal search or seizure, resulting in additional
                         searches or seizures of evidence excludes that evdidence. Once a D can show an
                         initial illegal search or seizure, any resulting searches or seizures of evidence must
                         be excluded subject to attenuation and standing doctrines. ................................... 32
         K. TEST: DEGREE OF ATTENUATION ............................................................................... 32
                    United States v. Ceccolini (1978): FOPT doctrine does not apply to witness testimony
                         b/c witness‘ free will makes the connection too attenuated. Witness comes of own
                         volition, so illegal search doesn‘t matter. ................................................................ 32
         L. TEST: ....................................................................................................................... 32
         M. PROBABLE CAUSE: AS LONG AS PROBABLE CAUSE FOR 2ND WARRANT IS NOT BASED ON
                                                                                 ND
            EVIDENCE FROM FIRST ILLEGAL SEARCH, THEN 2 WARRANT AND SEARCH IS OK......... 32
                    Murray v. U.S. (1988): Exclusionary Rule (ER) shouldn‘t put PO‘s in worse position than
                         if Constitutional Violation Never Occurred .............................................................. 32
         N. INEVITABLE DISCOVERY: IF EVIDENCE WOULD’VE BEEN FOUND INEVITABLY, THAN NOT
            EXCLUDED. ............................................................................................................... 32
                    Nix v. Williams: If the evidence would have inevitably been found without relying on
                          illegally obtained statements it is admissible even though the evidence was actually
                          found as a result of the illegally gathered info. ........................................................ 32
         O. ALLOWED USES OF EXCLUDED EVIDENCE .................................................................. 32
              i.  Impeachment: Excluded Testimony Allowed: D doesn’t have to raise issue on the
                  stand ................................................................................................................................. 32
                  U.S. v. Havens: excluded testimony can be used for impeachment ............................... 32
              ii. If Defendant Gives Direct Testimony to Excluded Evidence, then Allowed ............. 32
                  Walder v. United States (1954): If D gives direct testimony/testifies that relates to the
                        evidence, any evidence seized, even if it was seized illegally and is therefore
                        inadmissible under the exclusionary rule, can be used to impeach him. D opens
                        the door by talking about the evidence ................................................................... 32
XIX.     ALTERNATIVES TO THE EXCLUSIONARY RULE .......................................... 32
         A. TORT ACTION FOR DAMAGES ..................................................................................... 33
                    Monroe v. Payt(?): Sec 1983 is reinterpreted to allow suit of police officers if the POs
                        were acting under state law .................................................................................... 33
         B. IMMUNITY OF EE’S OF THE STATE: ............................................................................. 33
              i.    Qualified Immunity: (for Police Officers) ...................................................................... 33
                    Anderson v. Creighton: broadens the QI doctrine For a PO to be sued for tort damages,
                          the violation must have been apparent at the time it occurred. So PO can only be
                          sued if he acted in such a way that a reasonable PO would have thought there was
                          a violation. ............................................................................................................... 33

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         C. EQUITABLE OR INJUNCTIVE RELIEF ............................................................................ 33
                   Los Angeles v. Lyons: to get Standing for Injunction, D must allege that he would have
                        another encounter with Police and that all PO‘s behave unconstitionally, or that
                        there is citywide pattern of behavior ........................................................................ 33
         D. U.S. ATTORNEY GENERAL HAS POWER TO BRING ACTIONS ........................................ 33
XX.      USE OF FORCE: 4TH AMENDMENT REASONABLE STANDARD .................. 33
         E. DEADLY FORCE......................................................................................................... 33
              i.   Reasonableness Standard ............................................................................................. 33
                   Tennessee v. Garner: Use of Deadly force Only allowed when D poses significant
                        threat: deadly force not allowed for seizure of a burgler ......................................... 33
         F. EXCESSIVE FORCE .................................................................................................... 33
                   Graham v. Connor: Determination of Excessive Use of Force With Balancing Test
                        Gov‘t interest v. Suspect‘s Liberty Interests. Claims of excessive force of any type
                        in any kind of seizure of people should be analyzed under the 4th Am, meaning the
                        ct should determine whether the use of force was reasonable. To do this, balance
                        the gov‘t‘s interest with the suspect‘s liberty interests, all from the perspective of
                        the PO. .................................................................................................................... 33
         G. SPECIAL NEEDS EXCEPTION FOR INFRINGEMENT OF 4TH AMENDMENT RIGHTS ....... 33
              i.  Where law enforcement is not the primary reason for state infringement of 4th Am
                  rights, the 4th Am analysis is different. ........................................................................ 33
              ii. Generally in these cases, a search is conducted without individualized suspicion
                  or a warrant for reasons of public safety ..................................................................... 33
                  1960s cases of Safety Standards & Apartment Inspections Individualized suspicion
                        not necessary for PC, larger state need (public safety) will suffice ........................ 33
                  New Jersey v. TLO (1985): If a state actor has a policy that implicates the 4th Am, but
                        the policy is for non law enforcement reasons and the searches are not conducted
                        by police officers, a special needs exception to the warrant/individualized suspicion
                        reqs applies. ............................................................................................................ 34
         H. SPECIAL NEEDS EXCEPTION IS LIMITED TO NON-POLICE SEARCHES ............................ 34
                   Veronia School District v. Acton (1995): Drug Testing program of Student Athletes:
                         balancing test: student athletes‘ limited privacy rights do not outweight preventing
                         drug use. ................................................................................................................. 34
                   U.S. v. Earls: Where there is no identifiable drug problem in a particular group but there
                         is some drug use, the school can drug test all extracurriculars. There doesn‘t need
                         to be an identifiable drug problem in the group focused upon. ............................... 34
                   New York v. Burger (1987): The warrantless inspection of premises in a closely
                         regulated industry (such as automobile junkyards) is reasonable when three criteria
                         are met: ................................................................................................................... 34
                   Ferguson v. Charleston: Policy of Hospital to hand over pregnant Crack moms to police
                         is not special needs b‘c it is Primarily Law Enforcement Program ......................... 34
              i.   Warrantless Inspection Test: ......................................................................................... 34
XXI.     THE FIFTH AMENDMENT – THE SCOPE OF THE FIFTH AMENDMENT ....... 34
              ii. Boyd offered a privacy-oriented view of the 5th Am. The problem is this view
                   butted up against the regulatory state, so soon after Boyd is limited. ..................... 34
              iii. Schmerber limits it to only testimonial, not physical evidence. ................................ 34
              iv. But the Ct has never really decided the purpose of the 5th Am. Possibilities (note
                   that the Ct. has used all three): ..................................................................................... 34
         A. IMMUNITY .................................................................................................................. 34
              i.   Immunity Is a Governmental Right ................................................................................ 35
         B. IMPACT OF USE OF TESTIMONY .................................................................................. 35
                   Ullmann v. United States (1956): the loss of a job or expulsion from labor unions do not
                        negate the constitutionality of immunity offers. ....................................................... 35
         C. TRANSACTIONAL IMMUNITY: ...................................................................................... 35
                   Brown v. Walker (1896): If the gov‘t offers full transactional immunity, it may
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                            about witness is testifying. non-Criminal Harms of testifying are irrelevant (i.e.
                            public disgrace) ....................................................................................................... 35
         D. USE + FRUITS IMMUNITY: ........................................................................................... 35
              i.   What is Independently Gathered Evidence? ................................................................ 35
                   Ollie North Trial (U.S. v. North): The Ct held that, while the prosecutors remained
                         segregated, the jury pool was contaminated so no use of evidence could really be
                         independent. ............................................................................................................ 35
         E. IMPERFECT USE IMMUNITY: ........................................................................................ 35
                   Counselman v. Hitchcock (1892): Imperfect Use immunity is not enough to make
                       compelled testimony constitutionally permissible. .................................................. 35
         F. PERJURY NULLIFIES IMMUNITY ................................................................................... 36
XXII. FIFTH AMENDMENT’S CORE PROTECTION: PG. 642: ................................. 36
         A. FIFTH AMENDMENT TEST: .......................................................................................... 36
                   Murphy Waterfront Commission Case v. NY Harbor (1964): pg. 642 ......................... 36
                   U.S. v. Balysys: Fifth does not extend to risk of prosecution by a foreign nation: ............ 36
         COMPULSION .................................................................................................................. 36
              i.   Revocation of Privileges is Not Compulsion ............................................................... 36
                   McKune v. Lile (2002): revocation of prviliges is NOT Compulsion (prison) A prison
                        program that requires convicted sex offenders to admit their guilt, and if they don‘t
                        participate they are moved to a max security prison and denied privileges, does not
                        compel self incrimination in violation of 5th Am. The revocation of privileges is not
                        compulsion. ............................................................................................................. 36
              ii. any direct sanction is compulsion, and is sufficient compulsion to invoke the Fifth
                   Amendment ..................................................................................................................... 36
              iii. The State’s Interests: ...................................................................................................... 36
         B. MUST BE TESTIMONIAL EVIDENCE ............................................................................. 36
              i.   Giving name and address is not testimonial. See Byers ............................................ 37
         C. BURDEN TO ASSERT PRIVILEGE IS ON PERSON POSSIBLY INCRIMINATED B4 SPEAKING 37
         D. COMPULSION TO GIVE NAME IS NOT INCRIMINATORY .................................................. 37
                   Hydel: Compulsion to Give name is not incriminatory. .................................................... 37
         E. CIVIL PURPOSE FOR GIVING NAME WILL NOT CAUSE PEOPLE TO INCRIMINATE
            THEMSELVES ............................................................................................................ 37
                   CA v. Byers (1971): law that requires people in accidents to stop and give their names
                                                                     th
                         and addresses does not violate 5 Amendment, b‘c primary purpose is civil, not
                         preparation for trial. ................................................................................................. 37
         F. 5TH AMENDMENT DILEMMA: PRIMARY PURPOSE IS LAW ENFORCEMENT?.................... 37
                   Squib Case: tax returns on illegal activities can‘t be used against you, b‘c legislation
                         targeted specific group of people ............................................................................ 37
                   Baltimore City v. Bouknight (1990): law that compels production of abused child does
                                          th
                         not violate the 5 amendment, b‘c testimony is primarily for non- law enforcement
                         purposes of preventing child abuse ........................................................................ 37
XXIII. THE FIFTH-AMENDMENT – POLICE INTERROGATION................................. 37
         A. 6TH AMENDMENT: RIGHT TO COUNSEL, ARE THERE SITUATIONS WHERE THE COURT WILL
            SAY THAT THE PERSON CAN’T BE INTERROGATED WITHOUT COUNSEL IN ATTENDANCE. . 37
              i. 5th Amendment will cover the entire process (pre and post charging) .................... 37
              ii. 6th Amendment has something to say about (pre and post charging as well) ........ 37
         B. POLICE INTERROGATION – COMPULSION IF INVOLUNTARY STATEMENT ........................ 38
         C. INVOLUNTARY STATEMENT ........................................................................................ 38
                   Bram v. United States(1896): statement is involuntary if questioned under a situation of
                        hope or fear. D‘s confession was involuntary and therefore the questioning that led
                        to it violated the 5th Am. A statement is involuntary if it is the product of hope or
                        fear. Hope that speaking will make your situation better or fear that silence will be
                        used against you both count. .................................................................................. 38
         D. SHOCKS THE CONSCIENCE ........................................................................................ 38
         E. ADJUDICATORY CONFESSIONS................................................................................... 38

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XXIV. PROCEDURALLY COERCED: INTERROGATED WITHOUT COUNSEL ........ 38
         A. THE BEGINNING OF THE FORMAL PROCESS WHERE YOU GET RIGHT TO COUNSEL: ........ 38
         B. DEVELOPMENT OF THE RIGHT TO COUNSEL AND MIRANDA .......................................... 38
                                                           th
                   Massiah v. U.S. (1964): 6 Amendment Right to Counsel Attaches @ moment of
                         indictment/arraignment. The 6th Am right to counsel attaches at the moment of
                         indictment/ arraignment. D has a right to have counsel present whenever a PO
                         interrogates him once he has been indicted because post-indictment interrogation
                         is a critical stage in the criminal proceedings.. ........................................................ 38
              i.   What if the they used the same statement in a different charge against him to get
                   an indictment against him .............................................................................................. 38
         C. BUT FOR TEST: AT THIS POINT THERE’S NO 5TH AMENDMENT COMPULSION PROBLEM
            HERE, SINCE THE TEST ISN’T REALLY “HAD HE KNOWN IT WAS AN GOV’T AGENT HE
            WOULDN’T HAVE SAID ANYTHING” .............................................................................. 38
                   Escobedo v. Illinois (1964): (5th Amendment Claims on Questioning) ......................... 38
         D. POLICE INTERROGATION @ STATION HOUSE IS INHERENTLY COMPULSIVE & VIOLATES
            THE FIFTH AMENDMENT ............................................................................................. 38
                   Miranda v. Arizona (1966): unless D affirmatively waives his right to silence, post-arrest,
                                                         th
                        custodial questioning violates 5 Amendment. B4 PO questions, must inform D of
                        his rights (Miranda Warnings) Because custodial interrogation is inherently
                        coercive, post-arrest questioning violates the 5th Am unless D affirmatively waives
                        his right to remain silent etc. But D cannot waive rights unknowingly, so before a
                        PO questions D, he must be told what his rights are (ie given Miranda
                        warnings)Someone is brought in for custodial interrogation: The 5th Amendment
                        has power here, b‘c there‘ something inherently compulsive about the process. .. 39
         E. SUBJECTIVE & OBJECTIVE VIEWPOINTS ..................................................................... 39
         F. THERE’S A CONCLUSIVE PRESUMPTION: .................................................................... 39
              i.   Informal and Formal Compulsion is Covered by Miranda .......................................... 39
XXV. WAIVOR OF FIFTH AMENDMENT RIGHTS ..................................................... 39
         G.   CHANGE IS FROM THE COMPULSION TO SPEAK TO THE COMPULSION TO WAIT: .............. 39
         H.   THE WARNINGS ARE SUFFICIENT TO DISSIPATE THE COMPULSIVE ATMOSPHERE. ........... 39
         A.   WARNINGS ARE NOT CONSTITUTIONALLY REQUIRED, A REPLACEMENT WILL SUFFICE ... 39
         B.   THERE IS A HEAVY BURDEN IN THE STATE TO PROVE THAT: .......................................... 39
         C.   PRE-REQUISITES OF A MIRANDA SITUATION: ............................................................... 39
XXVI. DEFINITION OF INTERROGATION .................................................................. 39
         A. INTENT REQUIREMENT: REASONABLENESS STANDARD ............................................... 39
                   R.I. v. Innis: Interrogation: if PO knows or should know that his communication is
                          reasonably likely to elicit incriminating response. (Intent) What POs say is an
                          interrogation if the PO knows or should know that his communication is reasonably
                          likely to elicit an incriminating response. A conversation about how it would be a
                          shame for kids to find the gun is not likely to elicit an incriminating response. ....... 39
         B. TEST OF ACTIONS INTENDED TO ILLICIT RESPONSE ..................................................... 40
              i. Reasonableness: Pg. 753: .............................................................................................. 40
              ii. Intended to Illicit Incriminating Response Hypos: ...................................................... 40
              iii. Testimonial Requirement ............................................................................................... 40
                   PA v. Muniz (1990): D‘s slurred speech is not testimonial, therefore questions to
                         ascertain drunkenness aren‘t barred. Pre-Miranda warning answer to a question
                         intended to elicit an incriminating response is barred, but the slurring of D‘s speech
                         is non-testimonial and therefore not barred, as are the physical drunkenness tests.
                         Answers to routine booking questions are not barred b/c there is a routine booking
                         q exception. ............................................................................................................. 40
         C. EXCEPTION MADE FOR BOOKING QUESTIONS: BOOKING QUESTIONS AREN’T BARRED
            EITHER: .................................................................................................................... 40
         D. CUSTODY REQUIREMENT ........................................................................................... 40
              i.   pg. 766-767: the Note Stop & Frisk is not custody, unless held for more than half
                   hour .................................................................................................................................. 40

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                  Berkowitz: the stop and frisk situation is a seizure of the person. .................................. 40
              ii. Statements to Probation Officer are not made “in custody” ..................................... 40
                  MN v. Murphy: statements made to probation officer are not ―in custody‖ Statements
                       made to a probation officer are admissible b/c D was not ―in custody‖ when being
                       questioned by the parole officer. The situation/environment was not coercive
                       enough to make it custody. ..................................................................................... 40
         E. THE 5TH AMENDMENT IS NOT SELF-EXECUTING. .......................................................... 40
         F. SCOPE OF MIRANDA: TRICKERY AND WAIVER ............................................................. 40
                   Illinios v. Perkins: Any trickery or Deceipt is Ok An undercover PO posing as a fellow
                          inmate may question D about a crime for which there has been no indictment
                          without Mirandizing him b/c a jail cell is not a police dominated atmosphere. ........ 40
                   Arizona v. Fulimante (1991) Police investigating someone in prison for unsolved crime,
                          arranged w/ another prisoner to get suspect to talk: ............................................... 41
         G. WAIVER .................................................................................................................. 41
                   Moran v. Burbine: D‘s lawyer may not invoke his Miranda rights for him: D suspected of
                        murder, taken into custody, D‘s sister called PD‘s office (b/c he had been
                        represented by PD in past) ..................................................................................... 41
         H. EFFECT OF INVOCATION OF MIRANDA RIGHTS: RIGHT TO COUNSEL IS GREATER THAN
            RIGHT TO REMAIN SILENT .......................................................................................... 41
                   Michigan v. Moseley (1975): Waiting two hours after D invokes his right to silence
                        before requestioning him about a different crime does not violate D‘s rights. ........ 41
                   Edwards v. Arizona (1981): After D invokes his 5th Am right to a lawyer, POs may not
                        re-question him the next day without a lawyer being present. ................................ 41
         A. THE MEANING OF INITIATE: ........................................................................................ 41
              i.   Note that after D initiates, POs need to remirandize him ............................................ 41
                   Oregon v. Bradshaw (1983): If a PO could have reasonably construed D‘s statements
                         to be an initiation of a conversation, then D‘s statements post invocation of a
                         Miranda right are admissible. .................................................................................. 42
                   Davis v. United States (1994): If D‘s invocation of rights are unclear or ambiguous, the
                         PO may ignore them. A D‘s invocation of his rights must be clear – he has to say ―I
                         want a lawyer.‖ Saying ―Maybe I should speak to a lawyer‖ is not enough. .......... 42
                   Arizona v. Roberson (1988): Once D invokes his 5th Am right to counsel re crime 1,
                         POs may not question him re crime 2 without a lawyer. Facts same as Moseley,
                         but outcome is diff b/c right to counsel is diff than right to silence. ......................... 42
                   Minnick v. Mississippi (1990): once D meets with lawyer, any further questioning by PO
                         without presence of lawyer is inadmissable ............................................................ 42
         B. THE CONSTITUTIONAL STATUS OF MIRANDA ................................................... 42
                   NY v. Qualres: Miranda sweeps broader than the 5th Am. Therefore you can have a
                         public safety exception to Miranda that allows questioning before mirandaizing in
                         order to protect public safety. .................................................................................. 42
                   Oregan v. Elstad: If PO fails to mirandize D and gets a statement (but statement is still
                         voluntary), but later mirandizes D and gets another statement, the latter statement
                         is admissible even though the prior statement is not. But just b/c Miranda is
                         violated doesn‘t mean the 5th Am is actually violated, so the later statements are
                         allowed. Miranda is broader than the 5th Am. ....................................................... 42
XXVII. THE RIGHT TO COUNSEL RECONSIDERED (RETURN TO THE 6TH AM) ... 42
         A. AFTER ARRAIGNMENT, ANY SPEECH WITHOUT COUNSEL IS INTERROGATION ................. 42
                   Brewer v. Williams: Giving the Christian burial speech without counsel present after D
                       has been arraigned and has a 6th Am right to counsel is interrogation and therefore
                       violates D‘s Massiah right not to be interrogated without counsel present.This is
                       interrogation, and post-Massiah D has a right to have a lawyer present at even
                       non-custodial interrogation once he‘s been arraigned. Therefore, D‘s statements to
                       the police on the drive are inadmissible. However, the body (fruit) is admissible b/c
                       the inevitable discovery doctrine applies – there were police searching the area
                       already, so the body would have inevitably been discovered. (Ct doesn‘t hold this
                       here, this is a later result) ........................................................................................ 42

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         B. 6TH AMENDMENT RIGHT TO COUNSEL: ........................................................................ 43
                   United States v. Henry If POs send an undercover agent in to get a statement from a D
                         who has been arraigned, they can not actively try to elicit a statement from him
                         (Henry). ................................................................................................................... 43
                   Kuhlman v. Wilson: But if the POs put a person in as a listening post who doesn‘t
                         actively question D, that is OK b/c the police are not interrogating D, they‘re just
                         listening to what he has to say (Wilson). ................................................................. 43
                   Michigan v. Jackson (1986): The 6th Am right to counsel may not be waived without the
                         lawyer present ......................................................................................................... 43
                   Patterson v. Illinois (1988): After Grand Jury Indictment, Statement given after miranda
                         warnings is a waivor. ............................................................................................... 43
                                                                           th
                   McNeil v. Wisconsin (1991): Invoking 6 Am right to counsel re charge 1 (for which D
                         has been indicted) does not mean there must be a lawyer present if PO wants to
                         question D re charge 2. ........................................................................................... 43
         C. RETURN TO THE ISSUE OF VOLUNTARINESS .................................................... 43
                   Colorado v. Connelly (1987) A statement made as a result of mental illness is not
                                                             th
                        involuntary for the purposes of the 5 Am. For a statement to be involuntary it
                        must be involuntary as a result of police misconduct. ............................................. 43
XXVIII. THE DIFFERENCE BETWEEN A FIFTH AMENDMENT RIGHT TO
       COUNSEL AND 6TH AMENDMENT ................................................................. 43
         D.   PRIOR TO ARRAIGNMENT: 5TH AMENDMENT: .............................................................. 43
         E.   @ ARRAIGNMENT: 6TH AMENDMENT: ......................................................................... 43
         F.   AFTER INDICTMENT: 5TH AMENDMENT ......................................................................... 43
         G.   WHEN CAN POLICE USE INFORMANTS? ....................................................................... 43
XXIX. FIFTH AMENDMENT EXCLUSIONARY RULE: ................................................ 44
         A. VIOLATION OF MIRANDA, IS NOT NECESSARY A VIOLATION OF FIFTH AMENDMENT IN
            TERMS OF BARRING ALL THE FRUITS OF THAT SEARCH. ............................................... 44
                   Elstat see Above (Fruits of initial violation are excluded, but not the fruit from Fruit of the
                         initial violation): ........................................................................................................ 44
         B. THE CURRENT STATE OF MIRANDA ............................................................................. 44
                   Dickerson v. U.S. (2000): Miranda is Constitutional, and Congress can‘t pass a law
                         overriding it. The Ct then references stare decisis and reaffirms Miranda‘s
                         constitutional status, and then says that just because Elstad allows the fruits of a
                         violation to be admissible in court doesn‘t mean Miranda‘s not constitutional, it just
                         means that the 4th and 5th amendments are different. .......................................... 44
                   Harris v. New York (1971): A voluntary statement taken in violation of Miranda can be
                         used to impeach testimony directly relevant to charged conduct. .......................... 44
                   Anderson: When D remains silent post-warnings, the prosecution may not use the
                         silence to challenge D as to why he didn‘t bring up an affirmative defense (such as
                         self defense) when the police first asked about it. If you tell D he can remain silent,
                         it is unfair to later use that silence against him. ...................................................... 44
                   Doyle v. Ohio (1976): If it‘s an unwarned silence – D merely doesn‘t come forward –
                         then D‘s silence may be brought up in court because in that case D wasn‘t relying
                         on the warnings. ...................................................................................................... 44
         C. EXCLUDABILITY ......................................................................................................... 44
              i. Testimony v. Evidence ................................................................................................... 44
              ii. Voluntary v. Involuntary ................................................................................................. 44
         D. INCENTIVES FOR THE POLICE: .................................................................................... 44
                   Missouri v. Seibert (2004) (supreme court of MO): Not Fruit of Poisonous tree Analysis,
                         instead looking to see if warnings were sufficient in this context ............................ 44
                   US v. Patane, supp p. 161 (2004) Question of Good or Bad Faith, even if statement is
                         inadmissable, physical evidence attained from statement is admissable since no
                         evidence of bad faith. .............................................................................................. 45
                   Colorado v. Connelly, p. 844 (1987) D approaches PO and offers confession. PO
                         mirandizes. PO didn‘t do anything coercive, so confession is ok, even if statements
                         are unreliable. .......................................................................................................... 45

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XXX. IDENTIFICATION PROCEDURES..................................................................... 45
         A. EYE-WITNESS IDENTIFICATION .................................................................................... 45
         B. TAINTED LINE-UP FACTORS TO CONSIDER: ................................................................ 45
              i. Only Prosecution is Barred from Raising Line-Up ...................................................... 45
              ii. The burden is on the prosecution to show that the in-court ID is not tainted.......... 45
              iii. Factors to consider when deciding whether the courtroom ID is tainted: ............... 45
         C. THE 6TH AM RIGHT TO COUNSEL DURING POST-INDICTMENT LINE-UP ......................... 45
         D. PROSECUTION HAS BURDEN OF PROOF TO SHOW LINE-UP WAS NOT TAINTED ............ 45
                   United States v. Wade (1967): D has the right to have a lawyer present at a post-
                         indictment lineup; If the lineup was tainted, the prosecution must prove that the
                         taint has not infected the witness‘ ability to make an in-court ID/made any
                         subsequent in-court ID invalid ................................................................................. 45
                   Gilbert v. California: A per se exclusionary rule is applicable to out-of-court IDs made in
                         violation of the 6th Am. So if you have a lineup without a lawyer present, the ID is
                         always excluded. ..................................................................................................... 45
                   Note: What happens if counsel is not present at a lineup and a witness IDs D, that ID is
                         then not admitted in court, but the witness then later IDs D sitting in court? If the
                         prosecution gets the in-court ID, that‘s admitted. .................................................... 45
                   Kirby v. Illinois (1972): There is no right to counsel at a pre-indictment lineup because
                         that is not a critical stage in the government‘s prosecution of DThe 6th Am right
                         attaches only at or after the indictment/arraignment, when adversary judicial
                         proceedings have been initiated against him. ......................................................... 45
                   PA has rejected that proposition. Given the critical need, not going to draw the line
                         btwn post-arraignment, post-indictment. Lots of states have rejected Kirby as
                         making no sense in light of Wade and therefore require a lawyer to be present at all
                         lineups. .................................................................................................................... 46
                   Note: Even in jurisdictions where Kirby is rejected, ........................................................ 46
                   Moore v. Illinois (1977): The right to counsel can attach at a preliminary hearing if that
                         is the start of the adversary proceedings. Unfairness of confrontation and critical
                         stage of trial ............................................................................................................. 46
                   See article: re: due process issues for the manner of how pre-trial identifications are
                         done: ....................................................................................................................... 46
                   wade: line-up was post- arraignment, the 6th Amendment facially applies ...................... 46
         E. RIGHT TO COUNSEL IN PHOTO SPREAD ID’S: DUE PROCESS PROTECTIONS ................ 46
              i.   While in some situations you have the right to counsel, the Court in Stovall said
                   that in ALL situations involving confrontations, D has a right to fairness under due
                   process. ........................................................................................................................... 46
                   United States v. Ash (1973): No right to counsel at photo arrays Because No
                          Confrontation between Witness and D. For the 6th Am right to attach, there must
                          be both a critical stage AND confrontation. ............................................................. 46
         F.   6TH AMENDMENT RIGHT TO COUNSEL IN PHOTO LINE-UP’S ........................................ 46
         G.   LINE-UP REQUIREMENTS: .......................................................................................... 46
         H.   PHOTO-SPREAD REQUIREMENTS: .............................................................................. 46
         I.   DUE PROCESS LIMITATIONS ON POLICE CONDUCT OF ID’S .......................................... 46
                   Stowall v. Deno Regardless of Whether Counsel is there or not, Exigent Circumstances
                        (Victim near death) may overcome overly suggestive ID proccess ........................ 46
                   Manson v. Braithwaite (1977): To determine if an ID procedure violates due process,
                        look to the totality of the circumstances to determine 1) If the ID was suggestive
                        and unnecessary; if yes then 2) determine that the ID was unreliable. .................. 47
         J. RELIABILITY FACTORS OF EYE WITNESS .................................................................... 47
              i. The court should determine reliability based on factors like: ................................... 47
              ii. Reform: Braightwright Article: everyone agrees the factors the Court used here
                  was wrong........................................................................................................................ 47
         K. IF ID PROCESS IS NOT CONSTITUTIONAL, WHAT CONSEQUENCES TO IN-COURT
            IDENTIFICATION? ....................................................................................................... 47



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                   Wade: the out of court ID is suppressed, unless the Pros. Can show that the ID in
                          court was due to exigent circumstances, arising outside of the line-up. ................. 47
                   Trial Judge must determine that witness is testifying from incident, not photo
                          identification—if this happens, prosecutor can use both in-court and out-of-court
                          identification. ........................................................................................................... 47
                   The Real Dispute of Manson ............................................................................................ 47
         L. CROSS-RACIAL IDENTIFICATIONS ............................................................................... 47
         M. EXCLUSIONARY RULE AND ID TESTIMONY : ................................................................ 47
                   Kruse: Prosecution conceded that the out of court ID was excludable, but the in-court ID
                         was fine, since the W is in court talking about the event. There‘s no 4th
                         Amendment bar to that testimony. .......................................................................... 47
                   Cesalini: when a witness is involved in the search, it‘s different than if there‘s just
                         physical evidence. ................................................................................................... 47
                   Note: If the Defendant wanted, they can bring in the out of court ID (even if it‘s been
                         suppressed) so they can impeach the Witness, to prove that the out of court ID was
                         faulty. ....................................................................................................................... 47
XXXI. ENTRAPMENT ................................................................................................... 47
         A. BUT FOR NOTION: ..................................................................................................... 48
         B. EARLY ENTRAPMENT: ............................................................................................... 48
              i.   Problem was the test btwn: Giving the Criminal the OPPORTUNITY ........................ 48
                   Cirrels: alcohol case in the 1930s. ................................................................................... 48
         C. PRE-JACOBSON ........................................................................................................ 48
              i. Subjective Test: eyes of defendant. .............................................................................. 48
              ii. Objective Test: ................................................................................................................ 48
                   Shearman: Drug Case, where undercover Agent got person to buy him drugs because of
                         severe withdrawal symptoms: PO enforced the pre-disposition more than the usual
                         amount. ................................................................................................................... 48
              iii. pre-dispostion is usually a jury question, but here the Court sort of put in a 4th
                   Amendment protection, making it a matter of law. ..................................................... 48
                   Jacobson: Question is Pre-Disposition to Break the Law, not Pre-Disposition for
                         Pedaphilia ................................................................................................................ 48
              iv. When Subjective Test Prevails: ..................................................................................... 48
         D. DUE PROCESS LIMITATIONS ....................................................................................... 48
                   US v. Russell: outrageous conduct on the part of the government may invoke due
                         process concerns) Who instigated the Criminal Act will be Important. making the
                         methamphetamines were D‘s idea, Gov‘t just provided supplies. .......................... 48
                   Hampton v. US: Although PO engaged in illegal activity, beyond the scope of their
                         duties, Due Process does not free the D, remedy is instead to prosecute the police.
                         Gov‘t provided drugs to D and also had a fake buyer. ............................................ 49
                   Lower Court Cases where Court‘s have used this doctrine to avoid Prosecution: ........... 49
                   Anti-Vietnam: Rudovsky‘s 1970s Case: .......................................................................... 49
         E. GOV’T TARGETS POLITICAL OFFICIALS....................................................................... 49
XXXII. GRAND JURY: ................................................................................................... 49
         A. WHAT’S THE STANDARD FOR THE GOV’T’S RIGHT TO TURN OVER THE RECORDS? .......... 49
         B. GRAND JURY: ........................................................................................................... 49
                   Hubbel: Broad Base Subpoena Subject to Attack.Hubbel produced documents as
                       condition of plea to charge 1. While servince sentence, he answered gov‘t
                       subpoena for more documents, which the gov‘t then used against him. ................ 49
         C. NOW HAVE TO TURN OVER DOCUMENTS: ................................................................... 50
         D. PATRIOT ACT: THE HIDDEN STUFF: ............................................................................ 50
                   Case: Internet Service Provider, wanted to challenge this power, but initially, upon
                        reading the law, the iSP didn‘t even know if it could go to an attorney. .................. 50
         E. FOREIGN INTELLIGENCE & CRIMINAL INVESTIGATION: ................................................. 50
              i. PRIVILEGE AGAINST SELF-INCRIMINATION .............................................................. 51
              ii. CUSTODIAL INTERROGATION ...................................................................................... 53
CHAPTER 15 ................................................................................................................ 64
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    4TH AMENDMENT:
   1. “The right of the people to be secure in their persons, houses, papers, and effects against
      unreasonable searches and seizures, shall not be violated, and no warrants shall issue,
      but upon probable cause, supported by oath or affirmation, and particularly describing the
      place to be searched, and the persons or things to be seized.”
   2. It’s a Reasonable Standard
   3. 4th Amendment Issues: search & seizure, privacy, remedies, etc.
5TH AMENDMENT:
    4.“... nor shall any person. . . be compelled in any criminal case to be a witness against
      himself....”
   5. 5th Amendment Issues: self-incrimination, etc.
6TH AMENDMENT:
    6.  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
       trail, by an impartial jury of the State and district wherein the crime shall have been
       committed; . . . and to have the assistance of counsel for his defense.”
    7. 6th Amendment Issues: right to counsel: where it applies and where it doesn‘t, where it first gets
       invoked/revoked
I. 6TH A. RIGHT TO JURY TRIAL: BASED ON MAX POSSIBLE SENTENCE
    A. DUE PROCESS:
                        DUNCAN V. LA (391 U.S. 145) IF POSSIBILITY OF JAIL IS 6 MONTHS OR MORE, MUST
                        OFFER A JURY TRIAL
              i.  Federal Jury Trial Requirements:
                 o 12 person jury
                 o unanimous verdicts
             ii.  State Jury Trial Permeations
                    LA: Upheld: 8 person jury & allowed acquittal on 10-2 vote
        TH
II. 6 A. RIGHT TO COUNSEL: DETERMINED BY ACTUAL SENTENCE
    A. DUE PROCESS OLD CASE LAW
                          BETTS V. BRADY (1942): (RIGHT TO COUNSEL WAS DISCRETION OF JUDGE) LEAVE RIGHT
                          TO COUNSEL TO THE DISCRETION OF THE JUDGE ON A CASE BY CASE DETERMINATION.
                          FUNDAMENTAL FAIRNESS DOESN‘T REQUIRE A LAWYER
                          POWELL V. ALABAMA (1932): (CAPITAL CASES: COUNSEL MUST BE REQUIRED)
                       GIDEON V. WAINRIGHT 372 U.S. 335 (1963) P. 107 (RIGHT TO COUNSEL GUARANTEED,
                       OVERRULES BETTS V. BRADY)
    B.       STANDARD: FUNDAMENTAL FAIRNESS
             i.  Post-Gideon Clarifications
                          ARGERSINGER V. HAMLIN (1972): COURT RESOLVES THIS BY SAYING THAT IF THE JUDGE
                          IMPOSES ANY INCARCERATION, COUNSEL IS REQUIRED. BUT IF THE JUDGE DOESN‘T
                          IMPOSE JAIL, NO COUNSEL IS REQUIRED.

                          ALABAMA V. SHELTON (2002): D MUST HAVE A LAWYER IF THE STATE WANTS TO RESERVE
                          THE RIGHT TO PUT D IN JAIL FOR PAROLE VIOLATION, EVEN IF HE ONLY GETS PAROLE IN THE
                          FIRST INSTANCE
    C. CURRENT RULE: NO PRISON UNLESS ATTY REP.
       o Arraignment: Prosecution announces what sentence their seeking
III. DUE PROCESS/EQUAL PROTECTION:
    A. 6 AMENDMENT RIGHT TO COUNSEL PER SE RULE
              TH




    B. RIGHT TO EFFECTIVE COUNSEL

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          i.       Limited By Harmless Error Doctrine:
               o     if the effective counsel wouldn‘t have made a difference.
                                   th
         ii.       Procedural 6 Amendment Violation
               Counsel was not Provided:
               Harmless Error Test: On Appeal: D is entitled to a new trial, unless the Prosecution can
                show that the error was Harmless BEYOND A REASONABLE DOUBT:
               Internal Prejudice Type of 6 Amendment Violation
                                            th


         iii.  Harmless Error Test On Appeal: Court Examines:
              o If P‘s error was reasonable
              o If so, D has burden to prove that error had Significant Effect on Outcome
                             iv. Constitutional Error @ Trial: Collateral Review: Habeas Corpus
            Direct Appeal has Already Occurred, Evidence Outside Original trial shows Prejudice.
            Collateral Review Standard
    C. 2- PRONG TEST
                Was Attorney Deficient:
                  a. Objective Standard of Reasonableness Under the Norms
                  b. D must show severe Departure from norms
                Did the Deficiency Caused Prejudice
                  a. There was a Reasonable Possibility that the outcome would‘ve been different
                  b. Sufficiently probable of an alternate outcome

                         STRICKLAND V. WASHINGTON 466 U.S. 668 P. 158 (RIGHT TO EFFECTIVE COUNSEL, WHAT
                         STANDARDS TO IMPOSE, HOW TO REMEDY: COURT IS DEFERENTIAL TO ARTICULATION OF
                         STRATIGIC DECISION)
                        MARSHALL DISSENT IN STRICKLAND TEST:
                        Requires that the lawyer follows a checklist that a lawyer must be thinking about. A
                        reasonably effective lawyer must go through a checklist process, and if the lawyer
                        doesn‘t, then the competency prong of ―effective counsel‖ has been satisfied.
          i.       General Test: did the attorney reasonably prepare the case as per current standards

    D. STRATEGIC OR TACTICAL DECISION TEST: PROCEDURAL ERROR
        i.  Performance Prong: What A Reasonably Effective Lawyer Would Have Done
                   Court will give deference to Strategic Decisions and Presume Competence
                   Lawyer didn‘t do something that a reasonably effective lawyer would‘ve done
                   lawyer must be @ in a position to make a strategic or tactical decision.
                   Must investigate all the various strategic options
         ii.       Prejudice Prong: Reasonable likelihood on a Different Result:
           If reasonable lawyers can disagree, the court won‘t second guess
           Court may not know how the evidence would change the result and can‘t know, will
             probably have to remand for a re-trial
    E. PERFORMANCE PRONG: FAILURE TO INVESTIGATE
                         WILLIAMS V. TAYLOR (2000): (FAILURE TO INVESTIGATE MEETS NIGHTMARISH CHILDHOOD
                         MEETS STRICKLAND STANDARD

                         WIGGINS V. SMITH (2003): (FAILURE TO INVESTIGATE D‘S CHILD ABUSE: REASONABLE THAT
                         LAWYER WOULD‘VE NOT INVESTIGATED)
           New Case from PA, currently in Court: (Failure to Investigate Child Abuse Which was
             Obvious From School Records) (split, but said lawyer was competent)
    F. PREJUDICE PRONG:
                         i. Prejudice Prong: Error in Sentencing is Prejudice

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                        GLOVER V. UNITED STATES (2001): ANY ERROR MADE IN SENTENCING, WHICH ADDS
                        SENTENCING, WILL BE ENOUGH FOR THE PREJUDICE PRONG.
                               ii. Prejudice Prong: Ineffective Assistance in Plea Bargaining
                        HILL V. LOCKHART (1985): THE STRICKLAND 2-PART TEST APPLIES TO INEFFECTIVE
                        ASSISTANCE IN PLEA BARGAINING CASES.
                        So if lawyer gives bad advice re D‘s decision to plea guilty, the guilty plea may be
                        overturned.
                                iii. Prejudice Prong: Failure to Make a Motion to Exclude Evidence,
                                     Regardless of Accuracy of Evidence
                        KIMMELMAN V. MORRISON (1986): LAWYER‘S FAILURE TO TIMELY MAKE A MOTION TO
                        EXCLUDE ILLEGALLY SEIZED EVIDENCE IS DEFICIENT UNDER STRICKLAND, EVEN THOUGH
                        EVIDENCE WAS ACCURATE.
                                iv. Prejudice Prong: Intervening Law which Nullifies Lawyer Mistake
                                               th
                                    Nullifies 6 Amendment Claims
                        LOCKHART V. FRETWELL (1993): IF AN INTERVENING CHANGE IN THE LAW MEANS THAT THE
                        OUTCOME WOULD BE NO DIFFERENT TODAY THAN IT WAS WHEN THE LAWYER MADE A
                        MISTAKE, IT IS NOT AN UNFAIR OUTCOME AND THEREFORE DOESN‘T COUNT AS PREJUDICE
                                      TH
                        UNDER THE 6 AM.
    G. INSTRUCTIONS NOT TO LIE IS NOT: DEFICIENT LAWYERING
        i.  P’s Duty to Disclose if W Lies on Stand or Changes Story
                        NIX V. WHITESIDE (1986): A LAWYER TELLING D THAT IF HE LIES ON THE WITNESS STAND
                        THE LAWYER WILL TURN D IN DOES NOT QUALIFY AS DEFICIENT LAWYERING B/C ALL THE
                        LAWYER DID WAS CONVINCE D NOT TO LIE.
                                ii. Lying on the Stand: Must Disclose in Civil Cases
                       Prosecution: must disclose
                       Defendant: no duty to disclose. Plus, if doesn‘t cross, there‘s an effectiveness claim.

IV. HISTORICAL PREFACE TO BOYD: FORCIBLE SEIZURE & WRITS OF ASSISTANCE
    A. 4TH AMENDMENT: RIGHT AGAINST UNREASONABLE SEARCHES & SEIZURES
    B. 5TH AMENDMENT: GENERAL RIGHT AGAINST SELF-INCRIMINATION: NO PERSON SHALL BE COMPELLED TO
       BE A WITNESS AGAINST HIMSELF.
                                                                        TH
                 BOYD V. UNITED STATES (1886) (OVERTURNED 4 AMENDMENT RIGHT TO PERSONALTY,
                                                           TH
                 BUT NOT INSTRUMENTALITIES OF CRIME. 5 AMENDMENT RIGHT TO NOT PRODUCE
                 DOCUMENTS)
                 4th Amendment: The seizure of D‘s papers is unreasonable because the gov‘t can‘t
                 seize personal property. Gov‘t Can Seize Instrumentalities of Crime, but not Goods
                 used as ―Mere Evidence‖
                 The 4th Am protects certain realms of property – letters, docs, etc – above other
                 types of property (this is derived from the roots of the 4th Am as protecting against
                 English abuses like the writs of assistance/general warrants). Even with probable
                 cause, the Ct. may not seize papers, etc.
                 5th Amendment: Document production is no different from compelling someone to
                 testify as to what they wrote in the documents
    C. POST-BOYD DEVELOPMENTS: VERY LITTLE OF BOYD IS LEFT
                        GOULED V. UNITED STATES (1921): (A W ARRANT CAN‘T BE A FISHING EXPEDITION, IT MUST
                        PRECISELY AND SPECIFICALLY STATE WHAT THE COPS ARE LOOKING FOR)

                        OLMSTEAD (1927): W IRETAPPING (HAD HELD THAT THERE WAS NO PHYSICAL INTRUSION OF
                        PRIVATE PROPERTY, SO NO ACTUAL TRESPASS OF PROPERTY)




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                   
                 Brandeis Dissent: 4th Am protects privacy, not property. This is a prescient
                 dissent, as Ct. will soon move away from Boyd‘s property-centric view and focus
                 more on the 4th Am as a privacy protector.
    D. REGULATORY STATE DESTROYS BOYD
                                        TH
                        HALE CASE: NO 5 AMENDMENT FOR CORPORATIONS: CAN BE COMPELLED TO PRODUCE
                        DOCUMENTS: INCLUDING TAX RECORDS.


V. THE MODERN ERA: THE UNDERMINING OF BOYD, NOT A COMPLETE REVERSAL, BUT
    CLOSE.
    A. 4TH AMENDMENT: IS NOW THE ZONE OF PRIVACY:
             th
        i.  4 Amendment:
              Privacy Interest is Weighed Against Government Interest. If Gov‘t can show PC, then they
               can compel person to submit to search
               th
         ii.  5 Amendment:
                Not Testimony against oneself. Blood is Not Testimonial
                 SCHMERBER V. CALIFORNIA (1966): THE COURT EXCUSED LACK OF A WARRANT B‘C OF
                 EXIGENT CIRCUMSTANCES. THE BLOOD ALCOHOL LEVEL WOULD‘VE GONE DOWN IF THEY
                 HAD TO WAIT.
    B. OVERRULES EVIDENCE V. INSTRUMENTALITY DISTINCTION:
            th
       i.  4 Amendment:
                There‘s no further privacy violation btwn evidence and instrumentality.
                 th
         ii.    5 Amendment
                Clothing is not testimonial
                        WARDEN V. HAYDEN 1967): COURT OVERRULES DIFFERENCE BETWEEN MERE EVIDENCE
                        AND INSTRUMENTALITIES. MERE EVIDENCE, JUST LIKE INSTRUMENTALITIES, CAN BE SEIZED
                        AS LONG AS THE SEIZURE IS REASONABLE.

                        BERGER V. NEW YORK (1967) P. 288: A STATUTE AUTHORIZING EX PARTE ORDERS FOR
                        ELECTRONIC EAVESDROPPING IS INVALID B/C IT DOESN‘T REQUIRE THAT THE WARRANT BE
                        PARTICULAR AND THERE‘S NO PROVISION FOR AVOIDING PRIVATE CONVERSATIONS. CT.
                        APPLIES THE HAYDEN 4TH AM BALANCING TEST

VI. 4TH AMENDMENT THE EXCLUSIONARY RULE
    A. PRE-MAPP HISTORY:
                        WEEKS V. UNITED STATES (1914): IF EVIDENCE IS SEIZED ILLEGALLY, IT CAN BE EXCLUDED
                        FROM COURT

                        WOLF V. COLORADO (1949): THE ER DOES NOT APPLY TO THE STATES.
                   
                 Allowed for Other possible remedies:
                 Civil suits of police → tort actions for trespass
                 Criminal action against police officers
                 Administrative sanctions against police officers
                 Wouldn‘t help this D, but would deter future violations
    B. MAPP EXCLUSIONARY RULE:
                                                                                TH
                        M APP V. OHIO (1961) (W EEKS IS INCORPORATED INTO THE 14 AMENDMENT AND THE ER
                                                   TH
                        IS APPLIED TO THE STATES) 4 AMENDMENT RIGHT TO PRIVACY IS A PERSONAL RIGHT,
                        DEMANDS A PERSONAL REMEDY. W ANT TO DETER ILLEGAL POLICE ACTIVITY AND LEAVES
                        THEM NO WORSE OFF THAN IF THEY‘D ORIGINALLY COMPLIED.

VII.     EXCLUSION OF UNREASONABLE SEARCHES & SEIZURES
    A. MEANING OF SEARCHES
       i.   Pre-Katz Decisions:

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                         HOFFA V. US: AN UNBUGGED AGENT WHO BECOMES A CONFIDANTE OF ∆ INVOLVES NO
                                                                                   TH
                         REASONABLE EXPECTATION OF PRIVACY (REP) PROTECTED BY THE 4

                         LOPEZ V. US: BUGGED AGENT WHO SECRETLY RECORDS CONVERSATION DOESN‘T VIOLATE
                         ON LEE V. US: TRANSMISSION OF ∆‘S CONVERSATION VIA BUGGED AGENT DOES NOT
                         VIOLATE
    B. PROTECTION UNDER A REASONABLE EXPECTATION OF PRIVACY
                         KATZ V. UNITED STATES (1967) THE 4TH AM PROTECTS AGAINST SEARCHES AND SEIZURES
                         WHEREVER D HAS A JUSTIFIABLE (I.E. REASONABLE) EXPECTATION OF PRIVACY. SO TO
                         LISTEN TO ELECTRONICALLY EAVESDROP ON A PHONE BOOTH, THE POLICE MUST HAVE
                         PROBABLE CAUSE AND GET A WARRANT.
           i.       Seizure of property:
            Property is seized when there is some meaningful interference with an individual‘s
             possessory interest in that propertywhen a cop exercises control over it
    C. EXCEPTIONS TO REASONABLE EXPECTATION OF PRIVACY:
        i.  Assumption of Risk
                         U.S. V. WHITE (1971) THE GOV‘T MAY USE A THIRD PARTY INFORMANT AND TAPE THE
                         CONVERSATION. D ASSUMES RISK BY TALKING TO 3D PARTY
          ii.       The Open Field Doctrine
                    Curtilage: a buffer between your home and the public
                    Proximity to the home
                    Whether the area is included within an enclosure
                    The nature of the use
                    Steps taken to protect the area from observation
                    anything beyond the curtilage is open field
                         OLIVER V. UNITED STATES (1984): D HAS NO EXPECTATION OF PRIVACY IN OPEN FIELDS,
                         SO THE GOV‘T CAN SEARCH LAND A MILE FROM THE ROAD WITH LOTS OF NO TRESPASSING
                         SIGNS UP

                         US V. DUNN: DEA AGENTS MADE SEVERAL WARRANTLESS ENTRIES ONTO ∆‘S RANCH—
                         APPROACHED AND LOOKED INTO BUT DIDN‘T ENTER TWO BARNS THAT WERE 50 FROM THE
                         FENCE SURROUNDING THE RESIDENCE—HAD TO CROSS BARBED WIRE AND WOODEN
                         FENCES TO GET WHERE THEY DID
         iii.       Searches of trash left on the sidewalk
                         CALIFORNIA V. GREENWOOD (1988): THERE IS NO EXPECTATION OF PRIVACY RE TRASH B/C
                         IT IS READILY ACCESSIBLE TO ANIMALS, SNOOPS, MEMBERS OF THE PUBLIC, ETC.
         iv.        Bank Records
                         UNITED STATES V. MILLER (1976): A BANK DEPOSITOR HAS NO EXPECTATION OF PRIVACY
                         RE BANK RECORDS BECAUSE HE ―TAKES THE RISK, IN REVEALING HIS AFFAIRS TO ANOTHER
                         [I.E. THE BANK], THAT THE INFO WILL BE CONVEYED TO THE GOVERNMENT.
          v.        The View From Above
                         CALIFORNIA V. CIRAOLO (1986): IF A PLANE IS IN NORMAL AIRSPACE, POLICE MAY SURVEIL
                         YOUR BACK YARD.

                        DOW CHEMICAL V. US: EPA EMPLOYS AERIAL PHOTOGRAPHER SINCE PLANT REFUSED
                        INSPECTION AND COURT OK‘S. OPEN FIELD AND TECHNOLOGY TO ENHANCE VISION NOT A
                        CONSTITUTIONAL PROBLEM.
         vi.        Phone Records
                         (SMITH V. M ARYLAND (1979)) THIS IS ALSO TRUE RE PHONE RECORDS KEPT BY THE PHONE
                         COMPANY SINCE #‘S YOU DIAL ARE AVAILABLE TO THE PHONE COMPANY
        vii.        PA Rejects the Trash, Bank and White


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              
              In addition, post-Miller Congress passed the Bank Privacy Act, which protects bank
              records.
    D. EXPANSION: PHYSICAL INVASION IS MORE INVASIVE THAN VISUAL OBSERVATION
        i.  Investigatory Procedures that are More Invasive than observation:
                        BOND V. UNITED STATES (2000): POS MAY NOT MANIPULATE BAGS TO FEEL FOR DRUGS:
                        PHYISCIAL MANIPULATION IS MORE INVASIVE THAN VISUAL INVASION

                        KYLLO V. UNITED STATES (2001): GOV‘T CAN‘T USE A THERMAL IMAGER WITHOUT A
                        WARRANT TO SEE WHAT‘S GOING ON IN A HOUSE B/C THERE IS A REASONABLE EXPECTATION
                        OF PRIVACY RE YOUR ACTIVITIES IN THE HOUSE. MEASURING HEAT LOSS IS AN INTRUSION
                        INTO A CONSTITUTIONALLY PROTECTED AREA
    E. THE MEANING OF SEIZURES
        i.  Seizure of Person:
              occurs when a police officer by means of physical force, or show of authority, intentionally
               restrains the liberty of an individual in such a manner that in view of all of the
               circumstances surrounding the incident, a reasonable person would believe that he is not
               free to leave
         ii.  Objective Reasonable Person Test:
            Subjective impressions are not relevant because it is only whether or not a reasonable
             person in ∆‘s place would have believed that his freedom was restricted
    F. THE SEARCH OR SEIZURE MUST BE REASONABLE
        i.  Warrant
           the notion of unreasonable searches & seizures is defined by the 2nd part
           unless there‘s a warrant issued on probable cause, the search and seizure is
             unconstitutional
    G. THE CONTINUUM: THE MORE PRIVACY THAT‘S INVADED, THE HIGHER DEGREE OF CAUSE IS NEEDED TO
       MAKE THAT INVASION.
            4th Amendment applies to all cases, regardless of the seriousness of the case
            the court has rejected gauging the 4th Amendment protections by the nature of the
              investigation. Giving more leeway to cops in murder investigations v. just marijuana
              possession investigations.
    H. 3 TYPES OF POLICE INTERACTIONS WITH CITIZENS:
        i.   The line between search and no search or seizure and no seizure is btwn Encounter
             & Detention.
              Mere Encounter
              Non-Detention Discussion
         ii.  Investigative Detentions
VIII.    ARREST:
    A. IT‘S AN OBJECTIVELY REASONABLE TEST → WOULD A REASONABLE PERSON IN D‘S SHOES FEEL FREE TO
       SAY NO TO THE POLICE?

                        FLORIDA V. BOSTICK (1991):TO DETERMINE IF POLICE REQUEST TO SEARCH A BUS
                        PASSENGER‘S BAGS IS A SEIZURE, LOOK TO SEE IF A REASONABLE PERSON IN D‘S POSITION
                        WOULD FEEL FREE TO DENY POS CONSENT TO SEARCH

                  AIRPORT PROFILE CASES:
                          i. Policy: Deterrence v. Quantum of Privacy
    B. ONCE THE OFFICER POINTS WEAPONS, OR SAYS TO STOP IT‘S A SEIZURE
                          i. Factors That Suggest Seizure:
       ii.  Two things must happen for it to be a seizure:
               The suspect stops in response to the chasesubmits to authority AND
               A reasonable person in his shoes would not have felt free to leave

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         iii.       Factors to Look For:
                    threatening presence of several officers
                    the display of a weapon by an office
                    some physical touching of the person of the citizen
                    or the use of language or tone of voice indicating that compliance with the officer‘s request
                         might be compelled

                          UNITED STATES V. MENDENHALL (1980): JUSTICE STEWART GAVE EXAMPLES OF FACTORS
                          THE PRESENCE OF WHICH MIGHT SUGGEST THAT A GIVE POLICE-CITIZEN ENCOUNTER
                          CONSTITUTES A SEIZURE:

                          BROWER V. COUNTY OF INYO (1989): INTENTIONAL ACQUISITION OF THE BODY OF A
                          PERSON (THROUGH A ROADBLOCK THAT KILLS HIM) IS A SEIZURE

                          CALIFORNIA V. HODARI (1991): IF D RUNS AWAY AND POS GIVE CHASE, IT‘S NOT A
                          SEIZURE UNLESS POS ACTUALLY CATCH D. IF D DROPS EVIDENCE WHILE POS ARE
                          CHASING HIM, THEN POS HAVE PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES TO MAKE
                          THE STOP.

IX. PROBABLE CAUSE & WARRANTS FOR SEARCHES
    A. PROBABLE CAUSE: PROBABLE CAUSE IS A STANDARD OF PROOF THAT REQUIRES MORE THAN BARE
       SUSPICION AND JUSTIFIES A SEARCH OR SEIZURE.
        i.   Probable cause exists where the facts and circumstances within the officer’s
             knowledge and of which they had reasonably trustworthy information are sufficient
             in themselves to warrant a man of reasonable caution to hold the belief that an
             offense has been or is being committed
    B. FACTORS FOR PROBABLE CAUSE TO AN ARREST:
                
             Specificity of description—is it too general
                
             Time between crime and search and seizure
                
             Number of people who could fit the description
                
             Seriousness of crime
    C. FACTORS FOR A SEARCH:
            Quality of the information
            Level of specificity (that evidence will be found in the place they want to search)
    D. THE W ARRANT CLAUSE AND PROBABLE CAUSE
        i.  Early Probable Cause Cases
                          DRAPER V. UNITED STATES (1958): AN INFORMANT‘S DETAILED DESCRIPTION OF INNOCENT
                          ACTIVITIES CREATES PC IF HIS INSIGHT INTO THOSE INNOCENT ACTIONS INFORMS POS THAT
                          THEY INDICATE ILLEGAL ACTIVITIES.

                          AGUILAR & SPINELLI: FOR AN INFORMANT‘S INFO TO BE A LEGITIMATE BASIS FOR
                          PROBABLE CAUSE, THERE MUST BE: 2 FACTORS (COURTS LATER REJECT STRICT 2 PRONG
                          TEST FOR GATES‘ TOTALITY OF CIRCUMSTANCES TEST)
                  ILLINOIS V. GATES (1983) FOR AN INFORMANT‘S INFORMATION TO CREATE PROBABLE
                  CAUSE, LOOK TO SEE WHETHER THE TOTALITY OF THE CIRCUMSTANCES, INCLUDING THE
                  INFORMANT‘S RELIABILITY AND HIS BASIS OF KNOWLEDGE, CREATES A FAIR PROBABILITY
                  THAT CONTRABAND OR EVIDENCE OF A CRIME WILL BE FOUND IN A PARTICULAR PLACE.
    E. RULE: MUST HAVE W ARRANT & PROBABLE CAUSE
                    Ultimately: must have a warrant & must have probable cause
                    exigent circumstances that will excuse it, but that‘s limited
                    court is trying to limit the circumstances
                    entry has to be key to those circumstances, and @ some point the cops will have to call
                     off the search for a warrant
                


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X. EXCEPTIONS TO THE WARRANT AND PC REQUIREMENTS
    A. RARE: EXCEPTIONS TO PROBABLE CAUSE TO GET A W ARRANT
              
              Typically the court will allow a warrant to fire chief even on a 30% chance of criminal
              activity
           Only when they try and ―push‖ the envelope do they get struck down.
           When firemen switch from safety caretakers to crime scene investigators, a warrant is
              needed.
                    
    B. POLICE PROCEDURES FOR EXIGENT CIRCUMSTANCES W ITHOUT A W ARRANT
              
             Had to first knock and announce identity and purpose
              
             Police can‘t enter without making that announcement
              
             How long do you have to wait b4 they can go in?
              
             There are no-knock warrants: if they believe the person will use force to resist.
    C. MUST HAVE W ARRANT (AND THEREFORE PROBABLE CAUSE)UNLESS ONE OF THE FOLLOWING
       EXCEPTIONS
              a) Exigent circumstances
              b) Plain View
              c) Automobile exception
              d) Arrests (except in the home; if in the home w/exigent circumstances then OK)
              e) Search incident to arrest (SITA)
              f) Inventory searches
              g) Stop and Frisk
              h) Consent of person controlling the premises
              i) Regulatory/administrative searches
    D. EXIGENT CIRCUMSTANCES
                 MINCEY V. ARIZONA PG. 406 (SEARCH OF CRIME SCENE (HOME) IMMEDIATELY AFTER
                 CRIME IS OK, BUT FUTURE SEARCHES REQUIRE A WARRANT)
    E. REASONS FOR THE WARRANT REQ:
           We want an independent judicial officer making the determination of whether PC exists
           Given the exclusionary rule, it‘s better to be safe than sorry → we‘d rather be more
              particular and have a record of the PO‘s probable cause
    F. FLEEING SUSPECTS
                 WARDEN V. HAYDEN (1967): IF SUSPECT IS FLEEING INTO HOUSE, NOT NECESSARY TO
                 WAIT SINCE WOULD ENDANGER OTHER PO
    G. DESTRUCTION OF EVIDENCE
    H. CARETAKING FUNCTIONS EXCEPTION
                        W HEN POLICE GO INTO A HOUSE NOT TO ARREST BUT TO PROTECT SOMEONE INSIDE, THEY
                        DO NOT NEED A WARRANT. IF SOMEONE MIGHT BE IN THE HOUSE HAVING A HEARTATTACK,
                        ETC. COURTS GENERALLY ALLOW A LITTLE LESS THAN PROBABLE CAUSE.
              The problem is that the two functions – investigation and protection – can blend
             o Ex: OJ Simpson Case. The police said they jumped the fence to warn OJ that he may be
                 in danger, not to search for evidence, and they just happened to find the bloody glove.
                 Defense, however, said this was bogus and tried to get the glove thrown out
              Anything found during the exigent search may be used in support of a warrant, or some
                 other police activity.
              there is no serious crime exception allowing a cop to search beyond the exigency just
                 because it‘s a serious crime
              burden on the state to show the existence of exigency
              allowed to secure the building until a warrant is sought
    I.   PLAIN VIEW EXCEPTION
          i.   Requirements of plain view:

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               The PO is legitimately in the place where the evidence is found (Was PO there properly?)
               The evidence they see is immediately incriminating (Was ev obviously incriminating?)
                        HORTON V. CALIFORNIA: EVIDENCE FOUND IN PLAIN VIEW MAY BE SEIZED WITHOUT A
                        WARRANT, IF OTHER WARRANT LEGITIMATELY PLACES PO WITHIN THE HOUSE.
                    Note:
    J. LIMITS ON PLAIN VIEW:
                        ARIZONA V. HICKS (1987): IF A PO MUST MANIPULATE EVIDENCE TO FIND OUT IF IT IS
                        STOLEN, THE EVIDENCE IS NOT IN PLAIN VIEW (CAN‘T TURN STEREO OVER TO LOOK AT
                        SERIAL #)


XI. AUTOMOBILE SEARCHES (4TH AMENDMENT DOCTRINE): STILL EXCEPTIONS TO WARRANT
    A. REQUIREMENTS:
           Probable cause to believe there was contraband or other evidence of criminal activity in
             the vehicle now at the time of the search
           An automobile not necessarily mobileChambers v. Maroney
           No arrest is necessary—
           can be conducted as a search incident to an arrest
    B. RATIONALE:
           Originally the concern was that since autos are mobile, they were not likely to stay in one
              place while the police obtained a warrant
           Now the court has allowed searches conducted after the car has been immobilized and
              secured
           Given its extensive regulation, a person has diminished expectation of privacy in a car
    C. SCOPE:
           Spatial: An entire car and its contents may be searched provided that the item they are
             looking for would fit within the area being searched—if looking for an illegal alien can‘t
                                                                                           th
             look in the glove compartment—anomaly is that a bag is protected by the 4 prior to being
             placed in the car (warrant is necessary), but as soon as its in the car—not protected—no
             warrant necessary
           Temporal: very broad—a search is allowed hours after initial seizure—diminished
             expectation of privacy does not decrease with the passage of time
           Containers belonging to 3 parties: as long as cops have probable cause to search a
                                            rd

             car the cops may without a search warrant open any container even if they think it belongs
                   rd
             to a 3 party whom they don‘t have PC to believe committed a crime
           Otherwise, friends could always claim things in the car were theirs and not the driver‘s
           Distinguish from searches incident to arrests: in search incident to an arrest you can
             only search the interior of the car—in auto exception can search everywhere
           Federal Cases: Cops never have to Get Warrant
           State Cases: warrant requirements if there‘s time to get a warrant
    D. PRE-ACCEVEDO CASES: AUTOMOBILE SEARCHES
                   CARROLL V. UNITED STATES (1925): PO CAN SEARCH A CAR HE‘S FOLLOWING FOR
                   CONTRABAND B/C THERE ARE EXIGENT CIRCUMSTANCES – D MAY DESTROY EV
    E. BRIGHT LINE RULE OF SAFETY FROM CHAMBERS: CAN SEARCH IF IMPOUNDED
               Court developed a bright line rule. In Chambers, the police have a right to search the car
                there, but it‘s better ―safety‖ wise for the police to bring the car in and search it under the
                ―protected‖ impounded circumstances.
                  CHAMBERS: (TAKING ALREADY STOPPED CAR INTO CUSTODY, DOES NOT DENY EXIGENT
                  CIRCUMSTANCES. LOOK TO EXIGENT CIRCUMSTANCES @ TIME OF ARREST & NOT @ TIME
                  OF SEARCH)
    F. SEARCH OF LUGGAGE/BAG/BACKPACK:


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          i.     Police can hold the item, but they need a warrant for the search.
                        UNITED STATES V. ROSS (1982): W ARRANTLESS SEARCH OF AN AUTOMOBILE UNDER THE
                        CARROLL DOCTRINE COULD INCLUDE A SEARCH OF A CONTAINER OR PACKAGE FOUND
                        INSIDE THE CAR WHEN SUCH A SEARCH WAS SUPPORTED BY PROBABLE CAUSE.

                        UNITED STATES V. CHADWICK (1977): MOVABLE LUGGAGE NOT CONNECTED WITH ANY CAR
                        (IN THIS CASE A 200 POUND FOOTLOCKER BEING TRANSPORTED) MAY NOT BE SEARCHED
                        BECAUSE A PERSON EXPECTS MORE PRIVACY IN HIS LUGGAGE AND PERSONAL EFFECTS
                        THAN HE DOES IN HIS AUTOMOBILE

                  ARKANSAS V. SANDERS (1979): IF PO HAS PC RE PERSONAL LUGGAGE WITH IN A CAR BUT
                  NOT RE THE CAR ITSELF, A SEARCH OF THE LUGGAGE REQUIRES A WARRANT B/C OF
                  HEIGHTENED PRIVACY ASSOCIATED WITH LUGGAGE.
        ii. Under the Carroll doctrine, if you had PC re the car you could search the car and any
            bags found in it. But if you had PC re the bags and not the car, you couldn’t search
            without a warrant.
       iii. This distinction turned on the fact that if you see someone walking down the street
            carrying a bag, you have to get a warrant to search the container, so you should
            have to get one to search a bag in a car.
    G. ACEVEDO DOCTRINE: SEARCH ANYTHING IN CAR
                   CALIFORNIA V. ACEVEDO (1991) ONCE THERE IS PC TO BELIEVE THERE‘S CONTRABAND IN
                   THE CAR, COMBINATION OF EXIGENCY AND REDUCED EXPECTATION OF PRIVACY MEAN THAT
                   PO CAN SEARCH ANYTHING IN CAR
    H. IF THERE‘S PROBABLE CAUSE, NO WARRANT IS REQUIRED FOR ENTRY INTO THE CAR
        i.   No need to get a warrant even if there’s a closed container
                        WYOMING V. HOUGHTON (1999): W HEN POLICE HAVE PC RE A DRIVER‘S ILLEGAL
                        ACTIVITES, THEY MAY SEARCH BAGS IN THE CAR THAT BELONG TO A PASSENGER, EVEN IF
                        THE POLICE HAVE NO PC RE THE PASSENGER.
                   
                   Re the balancing: The gov‘t interest is heightened b/c of the portability of the goods
                   in a car and privacy interest is lessened b/c there‘s a lower expectation of privacy in a
                   car.
    I.   RULE FOR CAR SEARCHES: PROBABLE CAUSE TO SEARCH A CAR:
                probable cause is necessary
                Probable cause doesn‘t have to be as compelling as what you‘d use for a warrant
                Car has lesser expectation of privacy
                        ABERRA: (DRUGS @ A BAR DOES NOT ALLOW PO TO SEARCH THE PATRONS)
                        DEL REY: COPS GET INFO THAT THERE‘S CONTRABAND IN THE CAR, SO THEY GO TO THE CAR
                        AND SEARCH THE PASSENGER TO GET THE CONTRABAND. CAN‘T SEARCH THE PASSENGER,
                        WHEN YOU‘VE GOT NO PROBABLE CAUSE TO THE PERSON. IN ACEVEDO IT‘S NOT SEARCHING
                        THE PERSON, BUT THE HANDBAG, AND YOU DON‘T KNOW WHOSE HANDBAG IT IS?

                        JACKET
                                if it‘s on, the personal search is more of an invasion than if it‘s just your property.
                                (Though for ―invasion of property‖ rights -----?
                        M ARYLAND V. PRINGOLD IF THERE IS PC TO STOP A CAR, AND CONTRABAND IS FOUND IN
                        THE CAR, THEN PC FOR ARREST EXTENDS TO ALL PASSENGERS IN CAR AS WELL, NOT JUST
                        DRIVER


XII.     ARREST = SEIZURE OF PERSON
    A. ARREST W ARRANT NOT NECESSARY BEFORE MAKING AN ARREST
                There‘s probable cause that a person‘s committed the felony.
                Even if the cops don‘t get an arrest warrant, an arrest warrant is not needed.

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                If arrest for felony & there‘s Clear & Probable Cause, then no warrant necessary
                        UNITED STATES V. WATSON (1976): POLICE DO NOT NEED TO GET AN ARREST W ARRANT
                        BEFORE MAKING AN ARREST: BRIGHT LINE RULE TO AVOID UNNECCESSARY LITIGATION
                        OVER WHAT ―EXIGENT‖ STANDARDS EXISTED TO ALLOW ARREST

                                                                             TH
    B. ARREST W ARRANT (OF THE PERSON): W HEN INVASION OF HOME IS 4 AMENDMENT
                  PAYTON V. NEW YORK (1980): W ARRANTLESS ARRESTS IN PRIVATE HOMES ARE
                  UNCONSTITUTIONAL. (NY LAW THAT DOESN‘T REQUIRE ARREST WARRANT TO ARREST IN
                  SOMEONE‘S HOME IS UNCONSTITUTIONAL)
    C. ARREST W ARRANT DOESN‘T ALLOW SEARCH OF HOUSE
    D. EXPECTATION OF PRIVACY IS A QUESTION OF STANDING
        i.  An Independent privacy right: must be shown in the 3d place location.
                        STEAGALD V. UNITED STATES (1981): IF PO SUSPECTS THAT THE SUBJECT OF THEIR
                        ARREST WARRANT IS IN ANOTHER PERSON‘S HOME, THEY MUST GET A SEARCH WARRANT TO
                        GO TO THAT PERSON‘S HOME AND ARREST THE ORIGINAL SUSPECT
                       The privacy interest protected by the 4th am attaches to individuals, not places (See
                        Standing doctrine)
                       The privacy/liberty interests of the subject of the arrest warrant are small, while the
                        interests of the homeowner are big.
                        RIVERSIDE V. M LAUGHLIN (1991): IF ARRESTED WITHOUT A W ARRANT, A PROBABLE
                        CAUSE HEARING MUST BE HELD WITHIN 48 HOURS OF ARREST
                       Review is not very stringent – it‘s very rare that PC will not be found.
                       Have to have this requirement to prevent abuse of the arrest right
XIII.    SEARCHES INCIDENT TO ARREST (SITA)
            Once Valid Arrest Has Been Made, No Need for Warrant for Further Search
    E. LIMITED TO TIME AND PLACE AROUND THE ARREST
                        CHIMEL V. CALIFORNIA (1969): A PO MAY MAKE A SEARCH INCIDENT TO ARREST (SITA),
                        BUT IT MUST BE LIMITED TO THE TIME AROUND THE ARREST AND THE AREA IN WHICH THE
                        ARREST TAKES PLACE.
    F. SITA ALLOWED, REGARDLESS OF LACK OF EXIGENT CIRCUMSTANCES
                   UNITED STATES V. ROBINSON (1973): THE GOV‘T HAS A PER SE RIGHT TO SEARCH A
                   PERSON THEY ARE ARRESTING, REGARDLESS OF WHETHER THERE IS ANY ACTUAL DANGER
                   OF DESTRUCTION OF EVIDENCE OR THREAT TO PO SAFETY.
    G. ARREST IN A CAR ALLOWS SEARCH OF CONTAINERS:
         II.       Entire interior of the Car, but not the trunk
                  NEW YORK V. BELTON (1981): W HEN YOU ARREST SOMEONE IN A CAR, THE POLICE MAY
                  ALWAYS SEARCH THE CAR AND ANY CONTAINERS FOUND THEREIN.
                  Here, the police have no PC to believe that contraband was in the car, but they do
                  have PC to arrest the driver. They search the car and find contraband. This is a
                  valid SITA even though there was no danger of D using a weapon in the car or of D
                  destroying any evidence.
    A. SEARCH OF CAR ALLOWED EVEN W HEN PERSON ISN‘T IN CAR W HEN ARRESTED
                Thornton extends to where person wasn‘t in the car.
                If probable cause exists to make the traffic stop, can do the search. It‘s an objective bright
                 line standard.
                        THORNTON V. UNITED STATES: EVEN IF PERSON IS OUTSIDE THE CAR, CAN STILL DO A
                        STOP AND FRISK AND SEARCH THE CAR



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                          The Concerns of Expanding the Concurrence Use of Belton: If apply, reasonable
                           to find evidence in lots of places?
                        CHIMEL, WOULDN‘T IT ALLOW GREATER SEARCH OF HOME?
                        ROBINSON: ANYONE WHO CAN BE GRABBED CAN BE SEARCHED
                        BELTON: INCIDENT TO ARREST, ANYTHING IN THE CAR CAN BE SEARCHED.

    B. SOME INSTANCES THAT THE SEARCH CAN BE DONE ON BOTH PROBABLE CAUSE AND SEARCH INCIDENT TO
         ARREST
            if there were a robbery and the cops stopped the car for invalid plates, can search the car
             under probable cause,
            weapons in the car or proceeds from the robbery
                scan stop and search incident to the arrest
                Look for evidence of the crime:
    C. INVENTORY SEARCHES:
                Inventory Procedures: guy was arrested for DUI, tow truck arrived and impounded and
                 the police inventoried the car.
                Inventory search is permissible to ID items to protect themselves from claims of theft later
                Ensure that it is really an inventory search and not a criminal investigatory search
                Must have rules and regulations defining the inventory search
                The search must be conducted according to the rules.
XIV.     PRE-TEXTUAL ARRESTS ARE VALID IF THERE IS PROBABLE CAUSE FOR THE ARREST
    A. VALID STOP, THEN SITA WILL ALMOST ALWAYS BE VALID
                  WREN V. U.S (1996): OBJECTIVE REASONABLENESS FOR VALID STOP
    B. RACE & RACIAL PROFILING:
       i.   14th Amendment Violation: does equal protection suppress the evidence?
                (was it intentional discrimination)
                In racial profiling, even if you prove a race violation, is there exclusion or not? Some
                 courts say yes, some courts say no.
                Here, they say maybe there‘s a 14th Amendment violation.
                In the 80‘s it was 4-4, now it‘s 9-0.

         ii.     State Court’s, have analyzed under their 4th Amendments, that if it’s racial profiling,
                 than it’s an unreasonable arrest and that can lead to suppression of evidence
               How do you prove in a series of cases that race is a factor?
               The officer says it
               Challenges on the criminal side by the way the evidence was obtained
         iii.  civil suits claiming that there was a pullover based on race
                 PEOPLE V. SOTO: EXPERTS AND STATISTICIANS WERE USED TO PROVE THERE WAS RACIAL
                 PROFILING ON THE NJ TURNPIKE.
    C. NO NEED FOR REASONABLENESS IF THERE IS PROBABLE CAUSE FOR THE STOP
                        ATWATER V. LAGO VISTA (2001): OFFICER AUTHORIZED UNDER STATE LAW TO MAKE AN
                        ARREST IS AUTHORIZED TO MAKE THE ARREST
                        KNOWLES V. IOWA: THERE IS NO SEARCH INCIDENT TO CITATION. IF TRAFFIC TICKET IS
                        GIVEN AND NO ARREST, PROBABLE CAUSE NEEDS TO EXIST TO SEARCH THE CAR



    D. LIMITATIONS TO SITA
        i.   Exigent Circumstances Which Allow Search of Person Incident to Arrest, but NOT
             Search of Home
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                        WELSH V. WISCONSIN (1984): IF POLICE HAVE PC TO SUSPECT D AND EXIGENT
                        CIRCUMSTANCES THAT WOULD NORMALLY ALLOW A SEARCH OF THE PERSON, IF THE CRIME
                        IS MINOR THE POLICE MAY STILL NOT SEARCH D‘S HOME WITHOUT A WARRANT.

XV.      STOP AND FRISK AND INVESTIGATIVE DETENTIONS
               
             Stop and frisk is based on the reasonableness prong of the 4th Am.
               
             It divorces the idea of reasonableness from the warrant requirement
               
             (reasonable no longer means having a warrant and PC).
               
             But if you don‘t need PC, the question is what do you need.
               
             The stop and frisk issue is framed by the idea that since the intrusion of frisking is less
             than a full search, the amount of suspicion you need is less than PC for the search to be
             reasonable
           Frisk that is Unreasonable, or Progresses to point of Illegal is excluded as Fruits of Crime
    A. MAY STOP AND FRISK IF PO HAS REASONABLE SUSPICION TO SUSPECT D OF CRIME
                        TERRY V. OHIO (1967) IF PO HAS REASONABLE SUSPICION TO SUSPECT D OF A CRIME, HE
                        MAY STOP AND FRISK.

                        DICKERSON: IF A PO IS FRISKING FOR WEAPONS AND FEELS OTHER KINDS OF CONTRABAND
                        (LIKE DRUGS), THE PO CAN SEARCH THE POCKET OR WHATEVER AS LONG AS THE PO
                        IMMEDIATELY SUSPECTED DRUGS WHEN HE FELT THE POCKET.

                        DUNAWAY V. NEW YORK (1979): TAKING A SUSPECT INTO CUSTODY (TO THE STATION
                        HOUSE) ALWAYS REQUIRES PROBABLE CAUSE, REGARDLESS OF WHETHER YOU MAKE A
                        FORMAL ARREST. → YOU CANNOT MAKE A CUSTODIAL SEIZURE INTO A TERRY STOP SIMPLY
                        BY NOT CALLING IT AN ARREST.

                         FLORIDA V, ROYER (1983): W HEN PO USE A DRUG COURIER PROFILE TO STOP A SUSPECT
                         AND THEN ESCORT HIM TO A ROOM, AT SOME POINT THIS BECOMES A FULL SEIZURE, AND SO
                         THE FRUITS OF THE SEARCH MUST BE SUPPRESSED.
          i.       Note: The Ct swings back and forth between bright line rules and standards
                        MIMMS AND WILSON: MIMMS: STOPPED FOR EXPIRED LICENSE PLATE, BULGE IN JACKET A
                        BRIGHT LINE RULE. A PO CAN ORDER A DRIVER OR PASSENGER OUT OF THE CAR
                        WHENEVER A PO STOPS HIM (MIMMS IS DRIVERS, W ILSON IS PASSENGERS)

                        U.S. V. SHARPE: A STANDARD: THE LENGTH OF TIME IT TAKES TO MAKE A DETENTION
                        UNREASONABLE DEPENDS ON THE SPECIFICS OF THE CASE → SO SOMETIMES A STOP THAT
                        LASTS AN HOUR IS NOT EQUAL TO ARREST.

                        M ARYLAND V. BUIE (1990): A BRIGHT LINE RULE: POS MAY ―AS A PRECAUTIONARY MATTER
                        AND WITHOUT PC OR REASONABLE SUSPICION, LOOK IN CLOSETS AND OTHER SPACES
                        IMMEDIATELY ADJOINING THE PLACE OF ARREST FROM WHICH AN ATTACK COULD BE
                        IMMEDIATELY LAUNCHED.

                 MICHIGAN V. LONG (1983): W HEN A PO STOPS SOMEONE IN A CAR, HE MAY SEARCH THE
                 CAR B/C EVEN THOUGH THE SUSPECT MAY BE OUTSIDE THE CAR WHEN HE‘S DEALING WITH
                 THE PO, AS SOON AS D GETS BACK INTO THE CAR HE HAS ACCESS TO ANY WEAPONS THAT
                 MAY BE HIDDEN THERE.
                 RULE: ―The search of the passenger compartment of an automobile, limited to those
                 areas in which a weapon may be placed or hidden, is permissible if the police . . .
                 [have reasonable suspicion to believe] that the suspect is dangerous and . . . may
                 gain immediate control of the weapons. Pulled over erratic driver, who met them @
                 back of car. He was erratic Hunting knife
    B. W HAT CONSTITUTIONS REASONABLE SUSPICION
              Clearly a Seizure, not just a Stop
              there‘s investigative intent
              now must justify the seizure with reasonable suspicion of some kind of criminal activity.
          i.  Anonymous Tips


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                        FLORIDA V. J.L (2000): WITHOUT OTHER EVIDENCE ANONYMOUS TIP DOES NOT CREATE
                        REASONABLE SUSPICION
          ii.   Flights
                        ILLINOIS V. WARDLOW: FLIGHT CAN CREATE REASONABLE SUSPICION: HEADLONG FLIGHT
                        PLUS SOMETHING ELSE W ILL CREATE REASONABLE SUSPICION
                        UNITED STATES V. ARVIZU (2002): (REASONABLE SUSPICION EXISTS FOR MINIVAN
                        TRAVELLING OVER THE BORDER: OFTEN USED TO TRANSPORT DRUGS) – SPECIAL
                        DEFERENCE TO BORDER PATROLS

                      U.S. V. FLORES-MONTANO (2004): (SEARCH OF CAR‘S GAS TANK IS NO MORE INVASIVE
                      THAN SEARCH OF REST OF CAR)
         iii.   Flight v. Refusal to Talk to the Police
                   if you stay there, and the police asks you questions, you can refuse to answer
                      him and you can‟t get arrested for anything.  but if you run before the cop
                      approaches you, it makes you look more guilty, at least more nervous
                        Court makes a difference btwn headlong flight & just refusing the talk to the
                           police and walking away? Can‘t be penalized for refusing to talk to the police and
                           walking away.
         iv.    Refusal to Identify Oneself is Reasonable Grounds for Arrest
                                  TH
                        HIBBEL V. 6 JUDICIAL DISTRICT: REFUSAL TO ID ONESELF IS REASONABLE GROUNDS FOR
                        ARREST IF STOP & ID LEGISLATION OF THE STATE IS OK. BALANCES THE INTRUSION, B‘C
                        REASONS FOR STOP CAN BE CONSIDERED

XVI.     SEARCHES AND SEIZURES WITHOUT CAUSE OR SUSPICION
    A. ROADBLOCKS
       i.  Pre-Edmond cases: As long as Cops have No Discretion and it’s Public Safety
           Reason, then ok.
                        DELEWARE V. PROUSE (1979): THE CT. STRUCK DOWN AS UNREASONABLE DUI
                        CHECKPOINTS WHERE EVERY TENTH DRIVER OR ANYONE THE PO FELT SHOULD BE PULLED
                        OVER, AT OFFICER‘S DISCRETION WAS PULLED ASIDE AND CHECKED FOR DRUNKNESS.

                        MICHIGAN DEPT. OF STATE POLICE V. SITZ (1990): A RB SET UP TO PROTECT PUBLIC
                        SAFETY WHERE POLICE HAVE NO DISCRETION IS OK

                        UNITED STATES V. M ARTINEZ-FUENTES (1976): IMMIGRATION CHECKPOINTS AT THE
                        BORDER ARE OK B/C THE PROBLEM THEY‘RE TRYING TO COMBAT (ILLEGAL ENTRY INTO THE
                        U.S.) SINCE IT IS SO DIFFICULT TO FIGHT.
                 INDIANAPOLIS V. EDMOND (2000): DRUG CHECKPOINTS NOT OK, NOT A SAFETY CONCERN
                 LIKE DUI‘S
    B. CONSENT TO SEARCH
                        ILLINOIS V. LIDSTER CASE: WHEN SOMEONE CONSENTS TO A SEARCH FOR WHICH POLICE
                        WOULD OTHERWISE NEED PC, IT IS A WAIVER OF 4TH AM RIGHTS AND THEREFORE THE
                        SEARCH IS VALID

                        KABBALAS: THERE WAS A TRAFFIC VIOLATION AND THE COPS PULL OVER THE CAR, AND
                        THEN THEY BRING A DRUG DETECTING DOG. DRUG SNIFFING DOG IS NOT A SEARCH.

                        IN KYLO: USE OF A HEAT DETECTOR TO ID ACTIVITY, DEPICTS INNOCENT AND GUILTY
                        ACTIVITY, WITH DOGS, THEY ONLY EXPOSE CONTRABAND.


    C. COERCION OF CONSENT
       i.  Knowledge is Not Dispositive
                  SCHENECKLOTH V. BUSTAMONTE: CONSENT STILL VALID FOR PO SEARCH OF CAR, EVEN IF
                  D DIDN‘T KNOW IF HE COULD‘VE REFOSED THE SEARCH.
    D. THIRD PARTY CONSENT

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          i.     A wife may give consent for POs to search H’s stuff under two theories:
                              ii. Shared authority →
                             iii. Assumption of risk →
                                                                                                  RD
                        ILLINOIS V. RODRIGUEZ (1990):IF PO HAS A REASONABLE BELIEF THAT A 3 PARTY HAS A
                        RIGHT TO GIVE CONSENT FOR ANOTHER, THE RESULTING SEARCH IS VALID, EVEN IF IT TURNS
                        OUT THE 3 PARTY DIDN‘T IN FACT HAVE THAT AUTHORITY.
                                  RD



                        FLORIDA V. JIMENO (1991): W HEN D GIVES CONSENT TO SEARCH HIS CAR, THAT CONSENT
                        EXTENDS TO EVERYTHING IT IS REASONABLE TO ASSUME IS INCLUDED IN THE CAR, SUCH AS
                        CLOSED BAGS. BUT IT MAY NOT EXTEND TO LOCKED SUITCASES.

                        OHIO V. ROBINETTE (1996):W HEN A PO MAKES A TRAFFIC STOP AND THEN ASKS D IF HE
                        WILL CONSENT TO A SEARCH, IT DOESN‘T MATTER IF D KNOWS THAT HE HAS THE RIGHT TO
                        LEAVE B/C THE TRAFFIC STOP IS OVER. KNOWLEDGE IS JUST ONE ELEMENT IN DETERMINING
                        IF CONSENT IS VALID.

XVII. LIMITS TO THE EXCLUSIONARY RULE
    E. MAPP PUT FORTH THREE RATIONALES FOR THE ER, AND WAS NOT CLEAR ABOUT WHICH IT WAS
       ADOPTING, OR WHETHER THE RULE WAS CONSTITUTIONALLY MANDATED.

               ii. It is a constitutionally required remedy/a personal right that coexists w/listed 4 th Am rights
               iii. Deterrence of future police violations
               iv. Judicial integrity
    F. AFTER MAPP, THE CT. BEGAN TO LIMIT THE EXTENT OF THE ER
        i.  Limited its use in habeas cases → the deterrence is too attenuated in a federal claim
                                           th
            that a state PO violated D’s 4 Am rights.
       ii.  ER is not applicable to grand jury hearings
    G. GOOD FAITH EXCEPTION
                        UNITED STATES V. LEON (1984): PO REASONABLY RELIES ON GOOD FAITH WARRANT,
                        ACTUAL VALIDITY OF WARRANT IS IMMATERIAL AND EVIDENCE WILL NOT BE EXCLUDED

                        ILLINOIS V. KRULL (1987): THE GOOD FAITH EXCEPTION APPLIES TO SEARCHES PURSUANT
                        TO STATE STATUTES THAT ARE LATER DETERMINED TO BE UNCONSTITUTIONAL

                        ARIZONA V. EVANS (1995): DRUGS SEIZED IN A SEARCH INCIDENT TO ARREST WHEN THE
                        ARREST WAS MADE BASED ON MISTAKEN INFORMATION THAT A WARRANT EXISTED SHOULD
                        NOT BE EXCLUDED IF THE PO HAD A GOOD FAITH BELIEF THAT THE WARRANT WAS EXISTED
    H. STANDING DOCTRINE
         1. Recognize a standing problem in that police do something that violates A‘s 4th Am rights, but
           the evidence seized implicates B. The Q is can B exclude the evidence.
         2. Early on the Ct. hade a very broad standing rule:
             i. Anyone who has a property right in what is searched or seized has standing
             ii. If you were the target of an investigation, even if the police searched someone else‘s
                  property, you had standing
                   THE CT. REJECTED THE EARLY RULE IN RAKAS V. ILLINOIS (1978): D HAS STANDING IF D
                   HAD A REASONABLE EXPECTATION OF PRIVACY IN WHAT WAS BEING SEARCHED.
    I.   REASONABLE EXPECTATION OF PRIVACY = STANDING
                        MINNESOTA V. CARTER (COMMERCIAL VISITORS DO NOT HAVE REASONABLE EXPECTATION
                        OF PRIVACY IN THE HOUSE THEY ARE VISITING)

                        UNITED STATES V. PAYNER (1980): IT DOESN‘T MATTER IF POS WERE MANIPULATING THE
                        STANDING RULES. IF D DOESN‘T HAVE STANDING HE CAN‘T OBJECT TO THE SEARCH.
                        Facts: POs found out that a friend of D had papers in a hotel room. They knew D
                        wouldn‘t have standing if they illegally searched the friend‘s hotel. So they broke in
                        and illegally took the papers from the friend.


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                        Holding: D doesn‘t have standing even though the POs purposely broke the law and
                                               th
                        violated the friend‘s 4 Am rights. D still did not have an expectation of privacy.

XVIII. EXTENT OF EXCLUSIONARY RULE
    J. FRUIT OF THE POISONOUS TREE (FOPT)
        i.   Searches or Seizures: Additional Searches or Seizures Resulting from Initial Illegal
             Search or Seizure is Excluded
                        WONG SUN V. UNITED STATES (1963): INITIAL ILLEGAL SEARCH OR SEIZURE, RESULTING IN
                        ADDITIONAL SEARCHES OR SEIZURES OF EVIDENCE EXCLUDES THAT EVDIDENCE. ONCE A D
                        CAN SHOW AN INITIAL ILLEGAL SEARCH OR SEIZURE, ANY RESULTING SEARCHES OR
                        SEIZURES OF EVIDENCE MUST BE EXCLUDED SUBJECT TO ATTENUATION AND STANDING
                        DOCTRINES.
    K. TEST: DEGREE OF ATTENUATION
                        UNITED STATES V. CECCOLINI (1978): FOPT DOCTRINE DOES NOT APPLY TO WITNESS
                        TESTIMONY B/C WITNESS‘ FREE WILL MAKES THE CONNECTION TOO ATTENUATED. W ITNESS
                        COMES OF OWN VOLITION, SO ILLEGAL SEARCH DOESN‘T MATTER.
                        Holding: Application of FOPT doctrine to witnesses is different. The witnesses
                        come forward of their own volition. They have free will. It is totally possible that the
                        police would have talked to the witnesses anyway. So the fact that it was an illegal
                        search that led the PO to talk to the witness doesn‘t matter. Her free will in talking
                        makes the connection too attenuated.
    L. TEST:
                   
                   they didn‘t rely upon the slips to question the witness.
                   
                   No deliberate intent to be illegal, wasn‘t looking for other evidence or another witness
                   when the PO opened the envelope (no bad motive).
                Independent Source Doctrine: Evidence that was technically obtained from illegal
                   information but that would have been obtained legally in any case is still admissible.
                                                               ND
    M. PROBABLE CAUSE: AS LONG AS PROBABLE CAUSE FOR 2 W ARRANT IS NOT BASED ON EVIDENCE FROM
                                      ND
       FIRST ILLEGAL SEARCH, THEN 2 WARRANT AND SEARCH IS OK.
                        MURRAY V. U.S. (1988): EXCLUSIONARY RULE (ER) SHOULDN‘T PUT PO‘S IN WORSE
                        POSITION THAN IF CONSTITUTIONAL VIOLATION NEVER OCCURRED


    N. INEVITABLE DISCOVERY: IF EVIDENCE WOULD‘VE BEEN FOUND INEVITABLY, THAN NOT EXCLUDED.
                        NIX V. WILLIAMS: IF THE EVIDENCE WOULD HAVE INEVITABLY BEEN FOUND WITHOUT
                        RELYING ON ILLEGALLY OBTAINED STATEMENTS IT IS ADMISSIBLE EVEN THOUGH THE
                        EVIDENCE WAS ACTUALLY FOUND AS A RESULT OF THE ILLEGALLY GATHERED INFO.
                  Holding: If there was an independent source that would have led to the discovery of
                  the evidence, the evidence is admissible. → If the evidence would have inevitably
                  been found without relying on illegally obtained statements it is admissible even
                  though the evidence was actually found as a result of the illegally gathered info.
    O. ALLOWED USES OF EXCLUDED EVIDENCE
        i.  Impeachment: Excluded Testimony Allowed: D doesn’t have to raise issue on the
            stand
                      U.S. V. HAVENS: EXCLUDED TESTIMONY CAN BE USED FOR IMPEACHMENT
         ii.    If Defendant Gives Direct Testimony to Excluded Evidence, then Allowed
                        WALDER V. UNITED STATES (1954): IF D GIVES DIRECT TESTIMONY/TESTIFIES THAT
                        RELATES TO THE EVIDENCE, ANY EVIDENCE SEIZED, EVEN IF IT WAS SEIZED ILLEGALLY AND IS
                        THEREFORE INADMISSIBLE UNDER THE EXCLUSIONARY RULE, CAN BE USED TO IMPEACH HIM.
                        D OPENS THE DOOR BY TALKING ABOUT THE EVIDENCE
XIX.     ALTERNATIVES TO THE EXCLUSIONARY RULE

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    A. TORT ACTION FOR DAMAGES
                        MONROE V. PAYT(?): SEC 1983 IS REINTERPRETED TO ALLOW SUIT OF POLICE OFFICERS IF
                        THE POS WERE ACTING UNDER STATE LAW
                   
                  There is a problem with who pays tort damages.
                   
                  If the PO pays, juries won‘t issue awards, though it may deter unwanted action
                   
                  If the county pays, awards may be given, but it may not deter unwanted action
    B. IMMUNITY OF EE‘S OF THE STATE:
              For some types of decisions, judges are absolutely immune
              Prosecutors are absolutely immune for actions taken within their prosecutorial duties (so
               can‘t be sued for knowingly putting on false testimony)
              The President has absolute immunity for doing his job
          i.  Qualified Immunity: (for Police Officers)
               Originally said PO is immune if at the time the violation occurred, there was no clearly
                established rule that the action was a violation.
               So when Ct announces new rights, violations that occurred before the announcement are
                not subject to suit
                  ANDERSON V. CREIGHTON: BROADENS THE QI DOCTRINE FOR A PO TO BE SUED FOR TORT
                  DAMAGES, THE VIOLATION MUST HAVE BEEN APPARENT AT THE TIME IT OCCURRED. SO PO
                  CAN ONLY BE SUED IF HE ACTED IN SUCH A WAY THAT A REASONABLE PO WOULD HAVE
                  THOUGHT THERE WAS A VIOLATION.
    C. EQUITABLE OR INJUNCTIVE RELIEF
                  LOS ANGELES V. LYONS: TO GET STANDING FOR INJUNCTION, D MUST ALLEGE THAT HE
                  WOULD HAVE ANOTHER ENCOUNTER WITH POLICE AND THAT ALL PO‘S BEHAVE
                  UNCONSTITIONALLY, OR THAT THERE IS CITYWIDE PATTERN OF BEHAVIOR
    D. U.S. ATTORNEY GENERAL HAS POWER TO BRING ACTIONS
               42 U.S.C § 14141 is a federal law where Congress gave the Attorney General the power
                to bring injunctive actions against municipalities. So if there‘s a pattern or practice of
                wrongdoing in a city, the AG can step in. Generally this results in the negotiation of a
                consent decree ordering a change in the policy.

                                TH
XX.      USE OF FORCE: 4             AMENDMENT REASONABLE STANDARD
    E. DEADLY FORCE
       i.   Reasonableness Standard
                  TENNESSEE V. GARNER: USE OF DEADLY FORCE ONLY ALLOWED WHEN D POSES
                  SIGNIFICANT THREAT: DEADLY FORCE NOT ALLOWED FOR SEIZURE OF A BURGLER
    F. EXCESSIVE FORCE
                 GRAHAM V. CONNOR: DETERMINATION OF EXCESSIVE USE OF FORCE W ITH BALANCING
                 TEST GOV‘T INTEREST V. SUSPECT‘S LIBERTY INTERESTS. CLAIMS OF EXCESSIVE FORCE
                 OF ANY TYPE IN ANY KIND OF SEIZURE OF PEOPLE SHOULD BE ANALYZED UNDER THE 4TH
                 AM, MEANING THE CT SHOULD DETERMINE WHETHER THE USE OF FORCE WAS REASONABLE.
                 TO DO THIS, BALANCE THE GOV‘T‘S INTEREST WITH THE SUSPECT‘S LIBERTY INTERESTS, ALL
                 FROM THE PERSPECTIVE OF THE PO.
                                                           TH
    G. SPECIAL NEEDS EXCEPTION FOR INFRINGEMENT OF 4 AMENDMENT RIGHTS
        i. Where law enforcement is not the primary reason for state infringement of 4th Am
           rights, the 4th Am analysis is different.
       ii. Generally in these cases, a search is conducted without individualized suspicion or
           a warrant for reasons of public safety
                        1960S CASES OF SAFETY STANDARDS & APARTMENT INSPECTIONS INDIVIDUALIZED
                        SUSPICION NOT NECESSARY FOR PC, LARGER STATE NEED (PUBLIC SAFETY) WILL SUFFICE



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                        The Ct. first dealt with this in the 1960s re city inspections of apartments to make
                        sure they met safety standards.
                        NEW JERSEY V. TLO (1985): IF A STATE ACTOR HAS A POLICY THAT IMPLICATES THE 4TH
                        AM, BUT THE POLICY IS FOR NON LAW ENFORCEMENT REASONS AND THE SEARCHES ARE
                        NOT CONDUCTED BY POLICE OFFICERS, A SPECIAL NEEDS EXCEPTION TO THE
                        WARRANT/INDIVIDUALIZED SUSPICION REQS APPLIES.
                        Holding: In enforcing a no smoking policy, the principal searched students‘ backpack
                        and found marijuana. The Ct said the 4th Am applies, but the primary purpose for
                        the search was not criminal law enforcement. The Ct. says there is a special needs
                        exception to the 4th Am.

    H. SPECIAL NEEDS EXCEPTION IS LIMITED TO NON-POLICE SEARCHES
                Limited to searches for non-law enforcement searches.
                Note: If the action meets the special needs exception, the actor generally doesn‘t need a
                 warrant or individualized suspicion.
                        VERONIA SCHOOL DISTRICT V. ACTON (1995): DRUG TESTING PROGRAM OF STUDENT
                        ATHLETES: BALANCING TEST: STUDENT ATHLETES‘ LIMITED PRIVACY RIGHTS DO NOT
                        OUTWEIGHT PREVENTING DRUG USE.

                        U.S. V. EARLS: W HERE THERE IS NO IDENTIFIABLE DRUG PROBLEM IN A PARTICULAR
                        GROUP BUT THERE IS SOME DRUG USE, THE SCHOOL CAN DRUG TEST ALL
                        EXTRACURRICULARS. THERE DOESN‘T NEED TO BE AN IDENTIFIABLE DRUG PROBLEM IN THE
                        GROUP FOCUSED UPON.

                        NEW YORK V. BURGER (1987): THE WARRANTLESS INSPECTION OF PREMISES IN A
                        CLOSELY REGULATED INDUSTRY (SUCH AS AUTOMOBILE JUNKYARDS) IS REASONABLE WHEN
                        THREE CRITERIA ARE MET:
                               1. there must be a ―substantial‖ government interest informing the
                                   regulatory scheme pursuant to which the inspection is made,
                               2. Warrantless inspections must be necessary to further the regulatory
                                   scheme,
                               3. The inspection program must provide a ―Constitutionally adequate
                                   substitute‖ for a warrant.
                      FERGUSON V. CHARLESTON: POLICY OF HOSPITAL TO HAND OVER PREGNANT CRACK MOMS
                      TO POLICE IS NOT SPECIAL NEEDS B‘C IT IS PRIMARILY LAW ENFORCEMENT PROGRAM
          i.     Warrantless Inspection Test:
                              1. there must be a ―substantial‖ government interest informing the
                                   regulatory scheme pursuant to which the inspection is made,
                              2. Warrantless inspections must be necessary to further the regulatory
                                   scheme,
                              3. The inspection program must provide a ―Constitutionally adequate
                                   substitute‖ for a warrant.


XXI.     THE FIFTH AMENDMENT – THE SCOPE OF THE FIFTH AMENDMENT
            The fifth Am says ―nor shall any person be compelled to be a witness against himself.‖ The
            issues this raises:
        ii.   Boyd offered a privacy-oriented view of the 5th Am. The problem is this view butted
              up against the regulatory state, so soon after Boyd is limited.
       iii.   Schmerber limits it to only testimonial, not physical evidence.
       iv.    But the Ct has never really decided the purpose of the 5th Am. Possibilities (note
              that the Ct. has used all three):
    A. IMMUNITY


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              If D could merely say that his answer would incriminate him and the ct had to accept that,
               the right would be very broad. So the Ct. has limited the right by saying that if D is given
               immunity re what he says, then he is no worse off than he would have been if he
               remained silent, so he can be forced to talk.
              Giving immunity allows the government to compel testimony
          i.  Immunity Is a Governmental Right
            Transactional Immunity: Immunizes D from prosecution re the crime about which he
              testifies, even if later the gov‘t finds more evidence independently.
            Use + Fruits: Immunizes D from the use of his testimony in a prosecution against him
              plus any use of evidence found as a result of that testimony
            Imperfect Use Immunity: Immunizes D from the use of his testimony in a prosecution
              against him, but allows the gov‘t to use evidence found as a result of that testimony.
    B. IMPACT OF USE OF TESTIMONY
                 ULLMANN V. UNITED STATES (1956): THE LOSS OF A JOB OR EXPULSION FROM LABOR
                 UNIONS DO NOT NEGATE THE CONSTITUTIONALITY OF IMMUNITY OFFERS.
    C. TRANSACTIONAL IMMUNITY:
               Immunizes D from prosecution re the crime about which he testifies, even if later the gov‘t
                finds more evidence independently.
                  BROWN V. WALKER (1896): IF THE GOV‘T OFFERS FULL TRANSACTIONAL IMMUNITY, IT MAY
                  CONSTITUTIONALLY COMPEL TESTIMONY BECAUSE GOV‘T CAN NEVER PROSECUTE FOR
                  CRIMES ABOUT WITNESS IS TESTIFYING. NON-CRIMINAL HARMS OF TESTIFYING ARE
                  IRRELEVANT (I.E. PUBLIC DISGRACE)
    D. USE + FRUITS IMMUNITY:
              Immunizes D from the use of his testimony in a prosecution against him plus any use of
               evidence found as a result of that testimony
                 Kastigar v. U.S. (1972): statute granting Use + Fruits immunity is constitutional. If
                    gov‘t gets evidence independent of D‘s testimony, may use the evidence to
                    prosecute D
          i.  What is Independently Gathered Evidence?
               Since after Kastigar use + fruits is OK, the question then becomes what evidence is
                gathered independently? The burden is on the government to prove that they gathered
                the evidence independently.
                  OLLIE NORTH TRIAL (U.S. V. NORTH): THE CT HELD THAT, WHILE THE PROSECUTORS
                  REMAINED SEGREGATED, THE JURY POOL WAS CONTAMINATED SO NO USE OF EVIDENCE
                  COULD REALLY BE INDEPENDENT.
                  Holding: testimony was on national television: so if witness was exposed to the
                  testimony, have to go line by line to analyze the independence of the gov‘t‘s new
                  evidence. Ultimately, gov‘t gave up.
    E. IMPERFECT USE IMMUNITY:
               Immunizes D from the use of his testimony in a prosecution against him, but allows the
                gov‘t to use evidence found as a result of that testimony.
                        COUNSELMAN V. HITCHCOCK (1892): IMPERFECT USE IMMUNITY IS NOT ENOUGH TO MAKE
                        COMPELLED TESTIMONY CONSTITUTIONALLY PERMISSIBLE.
                        Facts: D called before the ICC. A statute provides for use immunity, which
                        immunizes D re any criminal proceedings that may arise as a result of the testimony,
                        but allows POs to use the testimony to find further evidence.
                        Holding: The law is unconstitutional. The immunity given must not leave the party
                        or witness subject to prosecution after he answers the incriminating question. It must
                        provide a full substitute for 5th Am. protection. The problem with the statue here is
                        that it only immunizes D against the words he utters, but the gov‘t is not enjoined
                        from using these words to find other evidence against the witness.


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                 In dictum in the case, the Ct. says immunity has to be transactional → use + fruits
                 would not be enough. But the holding is that imperfect use alone is not enough.
    F. PERJURY NULLIFIES IMMUNITY
                 Court has said that compelled testimony which turns out to be perjury, is not protected
                  from immunity.
                 If the gov‘t finds another witness to prove that D was lying, can use the other witness as
                  evidence to show that the D was lying.
                 But the gov‘t can not use the compelled testimony later to impeach the witness, b‘c that‘s
                  acquired by compulsion.

XXII. FIFTH AMENDMENT’S CORE PROTECTION: PG. 642:
            One Who Seeks Protection from the Fifth Amendment Must Assert the Fifth Amendment:
    A. FIFTH AMENDMENT TEST:
                 Testimonial in Nature
                 Being Compelled
                 Is Incriminatory
                        MURPHY WATERFRONT COMMISSION CASE V. NY HARBOR (1964): PG. 642
                        in describing self-incrimination: ―our unwillingness to compel the defendant to face a
                        trilateral (terrible choice)‖
                       Self accusation: incriminate yourself
                       Perjury: to lie
                       Contempt: for failure to testify
                        U.S. V. BALYSYS: FIFTH DOES NOT EXTEND TO RISK OF PROSECUTION BY A FOREIGN
                        NATION:
COMPULSION
       i.  Revocation of Privileges is Not Compulsion
                       MCKUNE V. LILE (2002): REVOCATION OF PRVILIGES IS NOT COMPULSION (PRISON) A
                       PRISON PROGRAM THAT REQUIRES CONVICTED SEX OFFENDERS TO ADMIT THEIR GUILT, AND
                       IF THEY DON‘T PARTICIPATE THEY ARE MOVED TO A MAX SECURITY PRISON AND DENIED
                       PRIVILEGES, DOES NOT COMPEL SELF INCRIMINATION IN VIOLATION OF 5TH AM. THE
                       REVOCATION OF PRIVILEGES IS NOT COMPULSION.
          ii.     any direct sanction is compulsion, and is sufficient compulsion to invoke the Fifth
                  Amendment
                 Threaten with loss of job if don‘t testify
                 Threaten with contempt by court
                 If a $100 or $10 fine is compulsion, why isn‘t a harsher sentence compulsion?

         iii.     The State’s Interests:
           the state has a strong interest promoting this program, b‘c of recidivism. Prisoner has a
             valid interest in not incriminating himself. Why not promote both interests by just granting
             immunity?
           State still has an interest in prosecuting past crimes
           The Nature of the Program Itself: there‘s more benefit if there‘s a risk in confronting
             previous crimes
           The state showed that they had never prosecuted folks based on their testimony.
           Privilege? Compelled to disclose information?
           Incrimination
    B. MUST BE TESTIMONIAL EVIDENCE
                 The 5th Am only applies to testimonial evidence, not to production of physical evidence
                  like fingerprints, standing in a lineup, etc, even though physical evidence may be
                  incrimination.

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        i.  Giving name and address is not testimonial. See Byers
    C. BURDEN TO ASSERT PRIVILEGE IS ON PERSON POSSIBLY INCRIMINATED B4 SPEAKING
           The burden is on the person who believes they‘ll be incriminated to assert the privilege
            before speaking.
           There isn‘t a heavy burden on the person to show the answer is going to be incriminating.
            They just have to show it will provide a link in the chain of evidence against him.
           Once an assertion is made, the judge should give deference to D‘s assertion.
    D. COMPULSION TO GIVE NAME IS NOT INCRIMINATORY
                  HYDEL: COMPULSION TO GIVE NAME IS NOT INCRIMINATORY.
                  Facts: Person refused to give a name. D argues: giving the name is the link in the
                  chain of evidence. Just giving the name could indicate part of crime?
                  Holding: Simple compulsion to give just a name is not incriminatory. Here there‘s
                  such a remote chance that giving name would be incriminatory.
                  Dissent: The question is not whether there is a risk of incrimination in this situation,
                  but whether there is a risk of incrimination.
    E. CIVIL PURPOSE FOR GIVING NAME W ILL NOT CAUSE PEOPLE TO INCRIMINATE THEMSELVES
               Balancing Test: state interest v. D‘s interest against self-incrimination.
              o D‘s Interest is weighed in terms of likelihood of prosecution
                 CA V. BYERS (1971): LAW THAT REQUIRES PEOPLE IN ACCIDENTS TO STOP AND GIVE THEIR
                 NAMES AND ADDRESSES DOES NOT VIOLATE 5 AMENDMENT, B‘C PRIMARY PURPOSE IS
                                                        TH


                 CIVIL, NOT PREPARATION FOR TRIAL.
    F. 5TH AMENDMENT DILEMMA: PRIMARY PURPOSE IS LAW ENFORCEMENT?
               If the state‘s primary purpose of the overall program is regulatory or administrative, then
                we have to balance those interests against the targets of potential for incrimination of the
                individual or class of individuals
                        SQUIB CASE: TAX RETURNS ON ILLEGAL ACTIVITIES CAN‘T BE USED AGAINST YOU, B‘C
                        LEGISLATION TARGETED SPECIFIC GROUP OF PEOPLE
                        Facts: Congress required the person to file tax returns on illegal activities (gambling)
                        and report those earnings.
                        Holding: Court held that because the legislation targeted a specific group of people
                        (gambling will always be illegal) that the 5th Amendment comes into play here.
                        BALTIMORE CITY V. BOUKNIGHT (1990): LAW THAT COMPELS PRODUCTION OF ABUSED
                        CHILD DOES NOT VIOLATE THE 5 AMENDMENT, B‘C TESTIMONY IS PRIMARILY FOR NON- LAW
                                                    TH


                        ENFORCEMENT PURPOSES OF PREVENTING CHILD ABUSE

XXIII. THE FIFTH-AMENDMENT – POLICE INTERROGATION
            Suspects, Criminal Defendants and Other people accused of Crimes
            In a Pre-Trial Setting, in a police station, when police are interrogating someone, does the
             5th Amendment come into play in self-incrimination?
    A. 6TH AMENDMENT: RIGHT TO COUNSEL, ARE THERE SITUATIONS WHERE THE COURT WILL SAY THAT THE
       PERSON CAN‘T BE INTERROGATED WITHOUT COUNSEL IN ATTENDANCE.
              right to counsel @ trial
              right to counsel @ any adversarial proceeding, unless the defendant waives
               representation.
              Right to counsel once charged
              Once someone is arrested (assuming there‘s probable cause), they have not been
               formally charged (by indictment or grand jury or criminal complaint--arraignment)
              Once the defendant has been formally charged and there‘s an adversarial proceeding in
               court, defendant can‘t be questioned in the absence of counsel
              At this timeline, police aren‘t even allowed to interrogate without representative counsel.
          i.  5th Amendment will cover the entire process (pre and post charging)
         ii.  6th Amendment has something to say about (pre and post charging as well)

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    B. POLICE INTERROGATION – COMPULSION IF INVOLUNTARY STATEMENT
    C. INVOLUNTARY STATEMENT
                 BRAM V. UNITED STATES(1896): STATEMENT IS INVOLUNTARY IF QUESTIONED UNDER A
                 SITUATION OF HOPE OR FEAR. D‘S CONFESSION WAS INVOLUNTARY AND THEREFORE THE
                 QUESTIONING THAT LED TO IT VIOLATED THE 5TH AM. A STATEMENT IS INVOLUNTARY IF IT IS
                 THE PRODUCT OF HOPE OR FEAR. HOPE THAT SPEAKING WILL MAKE YOUR SITUATION
                 BETTER OR FEAR THAT SILENCE WILL BE USED AGAINST YOU BOTH COUNT.
    D. SHOCKS THE CONSCIENCE
           Cases out of the South where the police actually physically threatened folks of color in an
             extreme measure, the court would state that it ―shocked‖ the conscience enough.
           These cops were so callous, they just admitted to what they had done.
    E. ADJUDICATORY CONFESSIONS
                can‘t use physical coercion
                can use psychological factors, where the cops can lie or use psychological trickery to get
                 the defendant to speak.
XXIV. PROCEDURALLY COERCED: INTERROGATED WITHOUT COUNSEL
    A. THE BEGINNING OF THE FORMAL PROCESS WHERE YOU GET RIGHT TO COUNSEL:
           Either you arrest the D, there‘s a Criminal Complaint: and you get arraigned where you‘re
             charged where the start of the formal proceedings start and you deserve counsel.
           Or You have enough evidence to indict the D by bringing the evidence in front of a grand
             jury and getting an indictment. You get the person and then the person is arraigned here
             formal proceedings begin.
    B. DEVELOPMENT OF THE RIGHT TO COUNSEL AND MIRANDA
                                                     TH
                        M ASSIAH V. U.S. (1964): 6 AMENDMENT RIGHT TO COUNSEL ATTACHES @ MOMENT OF
                        INDICTMENT/ARRAIGNMENT. THE 6TH AM RIGHT TO COUNSEL ATTACHES AT THE MOMENT OF
                        INDICTMENT/ ARRAIGNMENT. D HAS A RIGHT TO HAVE COUNSEL PRESENT WHENEVER A PO
                        INTERROGATES HIM ONCE HE HAS BEEN INDICTED BECAUSE POST-INDICTMENT
                        INTERROGATION IS A CRITICAL STAGE IN THE CRIMINAL PROCEEDINGS..


          i.     What if the they used the same statement in a different charge against him to get an
                 indictment against him
                               then the same evidence used in a different trial isn‘t a 6th Amendment violation
                                because the ―formal proceedings‖ hadn‘t started yet. Statement was acquired
                                prior to indictment.

    C. BUT FOR TEST: AT THIS POINT THERE‘S NO 5TH AMENDMENT COMPULSION PROBLEM HERE, SINCE THE
       TEST ISN‘T REALLY ―HAD HE KNOWN IT WAS AN GOV‘T AGENT HE WOULDN‘T HAVE SAID ANYTHING‖

                  ESCOBEDO V. ILLINOIS (1964): (5TH AMENDMENT CLAIMS ON QUESTIONING)
                  If D requests that his lawyer be present at a pre-indictment interrogation, he has the
                  right to have his lawyer there as a means of protecting his 5th Am right to silence.
                  Escobedo is in the stationhouse. So D has the right to an attorney after arrest before
                  arraignment. But it‘s not a 6th Am right.
                  Policy: It‘s a matter of balancing the police‘s need for confessions with the
                  defendant‘s need for counsel during a critical stage of an investigation. ―Our
                  Constitution, unlike some others, strikes the balance in favor of the right of the
                  accused to be advised by his lawyer of his privilege against self-incrimination.‖
    D. POLICE INTERROGATION @ STATION HOUSE IS INHERENTLY COMPULSIVE & VIOLATES THE FIFTH
       AMENDMENT
                Given the history of Bram and the Concept of Involuntariness given the 5th Amendment,
                 is there something inherently compulsive about the police process of interrogation @ the
                 station house?

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                  MIRANDA V. ARIZONA (1966): UNLESS D AFFIRMATIVELY WAIVES HIS RIGHT TO SILENCE,
                                                                TH
                  POST-ARREST, CUSTODIAL QUESTIONING VIOLATES 5 AMENDMENT. B4 PO QUESTIONS,
                  MUST INFORM D OF HIS RIGHTS (MIRANDA W ARNINGS) BECAUSE CUSTODIAL
                  INTERROGATION IS INHERENTLY COERCIVE, POST-ARREST QUESTIONING VIOLATES THE 5TH
                  AM UNLESS D AFFIRMATIVELY WAIVES HIS RIGHT TO REMAIN SILENT ETC. BUT D CANNOT
                  WAIVE RIGHTS UNKNOWINGLY, SO BEFORE A PO QUESTIONS D, HE MUST BE TOLD WHAT HIS
                  RIGHTS ARE (IE GIVEN MIRANDA WARNINGS)SOMEONE IS BROUGHT IN FOR CUSTODIAL
                  INTERROGATION: THE 5TH AMENDMENT HAS POWER HERE, B‘C THERE‘ SOMETHING
                  INHERENTLY COMPULSIVE ABOUT THE PROCESS.
    E. SUBJECTIVE & OBJECTIVE VIEWPOINTS
            Subjective Viewpoint of the Suspect: Subjectively, the person is isolated and the
             person doesn‘t know how long they‘re going to be there. There‘s something intimidating
             about that position
            Objective Purpose of Interrogation: Objectively, that‘s the whole point of interrogation.
             According to police manuals, the cops can be deceitful and lie to the person that‘s the
             point of interrogation.
    F. THERE‘S A CONCLUSIVE PRESUMPTION:
        i.  Informal and Formal Compulsion is Covered by Miranda
               Conclusive Presomption that there‘s compulsive in the process:
               Go the way of no more police interrogation
               Something that might be done in the process?
               Look @ this as a process, and assume that in every case that there‘s some degree of
                compulsion, regardless of person‘s experience.
               The Warning allows the police to question in this atmosphere
XXV. WAIVOR OF FIFTH AMENDMENT RIGHTS
    G. CHANGE IS FROM THE COMPULSION TO SPEAK TO THE COMPULSION TO WAIT:
               Once you Request Counsel, all questioning must stop.
               Can‘t say that ―counsel won‘t help them,‖ etc.
    H. THE WARNINGS ARE SUFFICIENT TO DISSIPATE THE COMPULSIVE ATMOSPHERE.
       III.   White‘s Dissent: a waiver still doesn‘t dispel the ―compulsive atmosphere‖
    A. W ARNINGS ARE NOT CONSTITUTIONALLY REQUIRED, A REPLACEMENT WILL SUFFICE
           NO, the warnings aren‘t constitutionally required. But, the warnings suffice, unless the
              state comes up with something better.
           If the state can come up with an equally effective way in protecting the person from the
              compulsive atmosphere, then that‘s good enough.
    B. THERE IS A HEAVY BURDEN IN THE STATE TO PROVE THAT:
           Warnings were given
           That the defendant understood the warnings
           That the defendant understood the significance of waiving his rights
    C. PRE-REQUISITES OF A MIRANDA SITUATION:
               Custody
               Interrogation

XXVI. DEFINITION OF INTERROGATION
            Since Miranda only required warnings before custodial interrogation, it is important to
              define what ―interrogation‖ means, since if questioning is not interrogation, no warnings
              are necessary.
    A. INTENT REQUIREMENT: REASONABLENESS STANDARD
                        R.I. V. INNIS: INTERROGATION: IF PO KNOWS OR SHOULD KNOW THAT HIS COMMUNICATION
                        IS REASONABLY LIKELY TO ELICIT INCRIMINATING RESPONSE. (INTENT) W HAT POS SAY IS AN


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                        INTERROGATION IF THE PO KNOWS OR SHOULD KNOW THAT HIS COMMUNICATION IS
                        REASONABLY LIKELY TO ELICIT AN INCRIMINATING RESPONSE. A CONVERSATION ABOUT
                        HOW IT WOULD BE A SHAME FOR KIDS TO FIND THE GUN IS NOT LIKELY TO ELICIT AN
                        INCRIMINATING RESPONSE.
    B. TEST OF ACTIONS INTENDED TO ILLICIT RESPONSE
        i.  Reasonableness: Pg. 753:
               Miranda not only refers to express questioning, but any words or conduct that the ―police
                should know, or reasonably likely would elicit an incriminating response‖
               - sounds like an objective standard?
               - Majority really thought the officers were concerned that kids don‘t get this gun
               - Dissent: thought it was a passion play to get the Defendant to say something.
               - fn7: not saying that intent of the PO‘s are not a factor: it may be a factor in switching the
                statement to express questioning.
          ii.  Intended to Illicit Incriminating Response Hypos:
         iii.  Testimonial Requirement
                  PA V. MUNIZ (1990): D‘S SLURRED SPEECH IS NOT TESTIMONIAL, THEREFORE QUESTIONS
                  TO ASCERTAIN DRUNKENNESS AREN‘T BARRED. PRE-MIRANDA WARNING ANSWER TO A
                  QUESTION INTENDED TO ELICIT AN INCRIMINATING RESPONSE IS BARRED, BUT THE SLURRING
                  OF D‘S SPEECH IS NON-TESTIMONIAL AND THEREFORE NOT BARRED, AS ARE THE PHYSICAL
                  DRUNKENNESS TESTS. ANSWERS TO ROUTINE BOOKING QUESTIONS ARE NOT BARRED B/C
                  THERE IS A ROUTINE BOOKING Q EXCEPTION.
    C. EXCEPTION MADE FOR BOOKING QUESTIONS: BOOKING QUESTIONS AREN‘T BARRED EITHER:
    D. CUSTODY REQUIREMENT
              Miranda held that there is something specially coercive about custody. So the q is do you
               need full scale arrest and questioning in the station house, or do other types of
               questioning count as custody as well?
          i.  pg. 766-767: the Note Stop & Frisk is not custody, unless held for more than half
              hour
                        BERKOWITZ: THE STOP AND FRISK SITUATION IS A SEIZURE OF THE PERSON.
                    But if the seizure is a short period, with no other incidents, you are not necessarily in
                     custody as per Miranda. If the officer poses some questions, (Terry- who‘s casing the
                     store) if someone says that they‘re casing the store, you can use it. They‘re not in
                     custody.
                   But it‘s a Case by Case analysis: if the stop and the person is held for more than half
                     an hour, etc. then the court will consider it custody.
         ii.    Statements to Probation Officer are not made “in custody”
                        MN V. MURPHY: STATEMENTS MADE TO PROBATION OFFICER ARE NOT ―IN CUSTODY‖
                        STATEMENTS MADE TO A PROBATION OFFICER ARE ADMISSIBLE B/C D WAS NOT ―IN
                        CUSTODY‖ WHEN BEING QUESTIONED BY THE PAROLE OFFICER. THE
                        SITUATION/ENVIRONMENT WAS NOT COERCIVE ENOUGH TO MAKE IT CUSTODY.
                   required to be there (@ the pain of having probation revoked)
                   more than being in custody, b‘c he was told to answer questions
                   functional equivalent: but it‘s a probation officer
    E. THE 5TH AMENDMENT IS NOT SELF-EXECUTING.
           If you are called as a witness in a trial, etc., no one has to warn you about the criminality
             of your statements.
           The fact that the defendant doesn‘t know that there‘re no consequences doesn‘t matter.
    F. SCOPE OF MIRANDA: TRICKERY AND W AIVER
                        ILLINIOS V. PERKINS: ANY TRICKERY OR DECEIPT IS OK AN UNDERCOVER PO POSING AS A
                        FELLOW INMATE MAY QUESTION D ABOUT A CRIME FOR WHICH THERE HAS BEEN NO



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                        INDICTMENT WITHOUT MIRANDIZING HIM B/C A JAIL CELL IS NOT A POLICE DOMINATED
                        ATMOSPHERE.
                        Facts: Undercover officers convince suspect that they‘ll include him in their plan to
                        escape from custody, ask if he‘d be willing to murder if necessary—attempt to get
                        him to admit to past murder
                        Holding: Ct holds any kind of trickery or deceit is okay. Ct says that b/c D didn‘t
                        know undercover officers were police, inherent compulsion was not present
                          What if police question D and D invokes rights to silence and atty, then police
                            use an undercover agent? Closer case—D can argue his rights should still
                            apply; Gov‘t argues this is fine under Perkins
                          Majority of lower cts say this is okay, but there is a split

                        ARIZONA V. FULIMANTE (1991) POLICE INVESTIGATING SOMEONE IN PRISON FOR UNSOLVED
                        CRIME, ARRANGED W / ANOTHER PRISONER TO GET SUSPECT TO TALK:
                        POs use a fellow inmate informant to get info from D. Informant offers to protect D
                        from inmate violence that‘s directed against D if D tells him about a murder. Ct says
                        this is coercion/confession is involuntary and hence inadmissible.
                        Facts: Prisoner told suspect that people think he‘s a sex offender and he‘ll be subject
                        to physical attack in jail; prisoner offers to protect him if he knows his whole
                        background
                        Holding: Ct says this is coercion on its own, don‘t even need Miranda; physical harm
                        was threatened
    G. WAIVER
                Once the Miranda warnings are given, a D may waive his right to silence or a counsel and
                 choose to speak to the police anyway.
                In fact, Miranda set up a presumption that pre-warnings waiver of the right to remain silent
                 is coerced, but after the warnings the waiver is voluntary.
                These cases examine situations in which the validity of D‘s waiver of his rights is less
                 clearcut.
                        MORAN V. BURBINE: D‘S LAWYER MAY NOT INVOKE HIS MIRANDA RIGHTS FOR HIM: D
                        SUSPECTED OF MURDER, TAKEN INTO CUSTODY, D‘S SISTER CALLED PD‘S OFFICE (B/C HE
                        HAD BEEN REPRESENTED BY PD IN PAST)


    H. EFFECT OF INVOCATION OF MIRANDA RIGHTS: RIGHT TO COUNSEL IS GREATER THAN RIGHT TO REMAIN
       SILENT
         IV.       Once D invokes his rights, can questioning ever continue later? How much later?
                        MICHIGAN V. MOSELEY (1975): W AITING TWO HOURS AFTER D INVOKES HIS RIGHT TO
                        SILENCE BEFORE REQUESTIONING HIM ABOUT A DIFFERENT CRIME DOES NOT VIOLATE D‘S
                        RIGHTS.

                 EDWARDS V. ARIZONA (1981): AFTER D INVOKES HIS 5TH AM RIGHT TO A LAWYER, POS
                 MAY NOT RE-QUESTION HIM THE NEXT DAY WITHOUT A LAWYER BEING PRESENT.
                 Holding: Once D invokes his right to counsel, the POs should respect that. The Ct.
                 distinguishes the right to counsel from the right to remain silent, saying there‘s
                 greater breadth to the protection of the right to silence (so distinguishes Moseley)
               This is weird b/c the right to counsel under the 5th Am was established to protect the
                 invocation of the right to remain silent.
                 Note: The Ct. does say that if D initiates conversation after invoking the right to
                 counsel, it may open the door.
    A. THE MEANING OF INITIATE:
              The question then becomes what does initiate mean (see Oregon v. Bradshawand
               following cases).
          i.  Note that after D initiates, POs need to remirandize him

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                        OREGON V. BRADSHAW (1983): IF A PO COULD HAVE REASONABLY CONSTRUED D‘S
                        STATEMENTS TO BE AN INITIATION OF A CONVERSATION, THEN D‘S STATEMENTS POST
                        INVOCATION OF A MIRANDA RIGHT ARE ADMISSIBLE.
                        Test for re-initiation: would a reasonable officer construe statement as re-initiation?
                        Holding: Ct holds this is enough to re-initiate
                        Dissent: Disagrees on the facts – it‘s hard to see how saying ―What‘s going to
                        happen to me now?‖ is initiation.
                        DAVIS V. UNITED STATES (1994): IF D‘S INVOCATION OF RIGHTS ARE UNCLEAR OR
                        AMBIGUOUS, THE PO MAY IGNORE THEM. A D‘S INVOCATION OF HIS RIGHTS MUST BE CLEAR
                        – HE HAS TO SAY ―I WANT A LAWYER.‖ SAYING ―MAYBE I SHOULD SPEAK TO A LAWYER‖ IS
                        NOT ENOUGH.
                        For a statement to count as invocation of rights, it must be a clear invocation.
                       Note: This is a different standard than the Edwards standard for re-initiation of
                        conversation. There, POs must clarify whether D wants to reinitiate contact.
                        Holding: Officer must reasonably believe D wants counsel—must be a clear
                        invocation of counsel
                        ARIZONA V. ROBERSON (1988): ONCE D INVOKES HIS 5TH AM RIGHT TO COUNSEL RE
                        CRIME 1, POS MAY NOT QUESTION HIM RE CRIME 2 WITHOUT A LAWYER. FACTS SAME AS
                        MOSELEY, BUT OUTCOME IS DIFF B/C RIGHT TO COUNSEL IS DIFF THAN RIGHT TO SILENCE.
                        Facts: D is arrested for crime 1 and invokes his right to counsel. New POs come
                        and question him re crime 2. He was mirandized both times. He confesses to crime
                        2. Though the facts are the same as Moseley, the case is distinguishable b/c that is
                        the right to silence and this is the right to counsel.
                        Holding: Ct holds D‘s invocation of right to counsel still applied 3 days later
               MINNICK V. MISSISSIPPI (1990): ONCE D MEETS WITH LAWYER, ANY FURTHER QUESTIONING
               BY PO WITHOUT PRESENCE OF LAWYER IS INADMISSABLE
               Facts: D consults with a lawyer. The PO comes back the next day and says you‘ve
               talked to a lawyer, do you have anything to say now?
               Holding: D‘s confession is inadmissible b/c once you invoke the right to counsel, you
               can‘t question D later without a lawyer.
    B. THE CONSTITUTIONAL STATUS OF MIRANDA
               Q: Is Miranda a constitutional rule. If a PO violates Miranda, does he violate the 5th Am?
                If not, what is the status of Miranda?
                        NY V. QUALRES: MIRANDA SWEEPS BROADER THAN THE 5TH AM. THEREFORE YOU CAN
                        HAVE A PUBLIC SAFETY EXCEPTION TO MIRANDA THAT ALLOWS QUESTIONING BEFORE
                        MIRANDAIZING IN ORDER TO PROTECT PUBLIC SAFETY.
                        Holding: Ct creates public safety exception to Miranda—if there is danger and they
                        need to do something before they give Miranda warnings, they should be able to
                       Notion of doctrine is that if police gave a warning, they wouldn‘t find something out
                        that was necessary to protect the public safety
                       Footnote 5: debate of constitutional status of Miranda itself
                        OREGAN V. ELSTAD: IF PO FAILS TO MIRANDIZE D AND GETS A STATEMENT (BUT
                        STATEMENT IS STILL VOLUNTARY), BUT LATER MIRANDIZES D AND GETS ANOTHER
                        STATEMENT, THE LATTER STATEMENT IS ADMISSIBLE EVEN THOUGH THE PRIOR STATEMENT
                        IS NOT. BUT JUST B/C MIRANDA IS VIOLATED DOESN‘T MEAN THE 5TH AM IS ACTUALLY
                        VIOLATED, SO THE LATER STATEMENTS ARE ALLOWED. MIRANDA IS BROADER THAN THE 5TH
                        AM.
XXVII. THE RIGHT TO COUNSEL RECONSIDERED (RETURN TO THE 6TH AM)
    A. AFTER ARRAIGNMENT, ANY SPEECH WITHOUT COUNSEL IS INTERROGATION
                        BREWER V. WILLIAMS: GIVING THE CHRISTIAN BURIAL SPEECH WITHOUT COUNSEL PRESENT
                        AFTER D HAS BEEN ARRAIGNED AND HAS A 6TH AM RIGHT TO COUNSEL IS INTERROGATION
                        AND THEREFORE VIOLATES D‘S MASSIAH RIGHT NOT TO BE INTERROGATED WITHOUT

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                        COUNSEL PRESENT.THIS IS INTERROGATION, AND POST-MASSIAH D HAS A RIGHT TO HAVE A
                        LAWYER PRESENT AT EVEN NON-CUSTODIAL INTERROGATION ONCE HE‘S BEEN ARRAIGNED.
                        THEREFORE, D‘S STATEMENTS TO THE POLICE ON THE DRIVE ARE INADMISSIBLE. HOWEVER,
                        THE BODY (FRUIT) IS ADMISSIBLE B/C THE INEVITABLE DISCOVERY DOCTRINE APPLIES –
                        THERE WERE POLICE SEARCHING THE AREA ALREADY, SO THE BODY WOULD HAVE
                        INEVITABLY BEEN DISCOVERED. (CT DOESN‘T HOLD THIS HERE, THIS IS A LATER RESULT)
           TH
    B. 6 AMENDMENT RIGHT TO COUNSEL:
                        UNITED STATES V. HENRY IF POS SEND AN UNDERCOVER AGENT IN TO GET A STATEMENT
                        FROM A D WHO HAS BEEN ARRAIGNED, THEY CAN NOT ACTIVELY TRY TO ELICIT A STATEMENT
                        FROM HIM (HENRY).

                        KUHLMAN V. WILSON: BUT IF THE POS PUT A PERSON IN AS A LISTENING POST WHO
                        DOESN‘T ACTIVELY QUESTION D, THAT IS OK B/C THE POLICE ARE NOT INTERROGATING D,
                        THEY‘RE JUST LISTENING TO WHAT HE HAS TO SAY (W ILSON).

                        MICHIGAN V. JACKSON (1986): THE 6TH AM RIGHT TO COUNSEL MAY NOT BE WAIVED
                        WITHOUT THE LAWYER PRESENT
                        ―[I]f police initiate interrogation after a defendant‘s assertion, at an arraignment or
                        similar proceeding, of his right to counsel, any waiver of the defendant‘s right to
                        counsel for that police-initiated interrogationn is invalid.‖
                        PATTERSON V. ILLINOIS (1988): AFTER GRAND JURY INDICTMENT, STATEMENT GIVEN
                        AFTER MIRANDA WARNINGS IS A WAIVOR.
                        The Ct. did note that, unlike in the 5th Am context, if D‘s lawyer were trying to reach
                        him and D waived his rights, then the warnings would not be sufficient to make the
                        waiver voluntary.
                        Holding: No right to counsel for questioning re charge 2. The 5th and 6th Am
                        contexts are different. The right to counsel under the 6th Am is offense-specific. So
                        if being questioned re charge 2, you must invoke the right to counsel again.

                                                                   TH
                MCNEIL V. WISCONSIN (1991): INVOKING 6 AM RIGHT TO COUNSEL RE CHARGE 1 (FOR
                WHICH D HAS BEEN INDICTED) DOES NOT MEAN THERE MUST BE A LAWYER PRESENT IF PO
                WANTS TO QUESTION D RE CHARGE 2.
    C. RETURN TO THE ISSUE OF VOLUNTARINESS
                 Is the state doing something to illicit information?
                 Or is it something, just in response to something that was said?
                        COLORADO V. CONNELLY (1987) A STATEMENT MADE AS A RESULT OF MENTAL ILLNESS IS
                                                                  TH
                        NOT INVOLUNTARY FOR THE PURPOSES OF THE 5 AM. FOR A STATEMENT TO BE
                        INVOLUNTARY IT MUST BE INVOLUNTARY AS A RESULT OF POLICE MISCONDUCT.

XXVIII.     THE DIFFERENCE BETWEEN A FIFTH AMENDMENT RIGHT TO COUNSEL AND
    6TH AMENDMENT
    D. PRIOR TO ARRAIGNMENT: 5TH AMENDMENT:
           prior to arraignment: invoke the 5 Amendment right to counsel, then cops can‘t question
                                                      th

            you on anything, related to any charge.
    E. @ ARRAIGNMENT: 6TH AMENDMENT:
           @ arraignment, 6 Amendment right to counsel is there regardless of request.
                                     th

           No more questioning by the cops on that charge
                          TH
    F. AFTER INDICTMENT: 5 AMENDMENT
            then you have your right to counsel, but your cops can interrogate the D about other
              crimes.
            They‘re supposed to mirandize you before they interrogate, but still they‘re not barred
              from asking about other cases.
    G. W HEN CAN POLICE USE INFORMANTS?


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               prior to charge, informant in a jail cell can be used
               post charge, informant is an agent of the state.
               Is there an attempt to deliberately get around counsel by placing the informant or the
                undercover agent?
XXIX. FIFTH AMENDMENT EXCLUSIONARY RULE:
    A. VIOLATION OF MIRANDA, IS NOT NECESSARY A VIOLATION OF FIFTH AMENDMENT IN TERMS OF BARRING
       ALL THE FRUITS OF THAT SEARCH.

                 ELSTAT SEE ABOVE (FRUITS OF INITIAL VIOLATION ARE EXCLUDED, BUT NOT THE FRUIT
                 FROM FRUIT OF THE INITIAL VIOLATION):
                 A 5th Amendment violation. So the fruits of the initial violation are excluded, but not
                 the fruit from that initial violation.
                 Re-cap of facts: Police interrogate kid, in front of house, whose parents are there.
                 No Miranda, and kid gives statement. Then police arrest kid and bring down to jail
                 and interrogate again.
    B. THE CURRENT STATE OF MIRANDA
                        DICKERSON V. U.S. (2000): MIRANDA IS CONSTITUTIONAL, AND CONGRESS CAN‘T PASS A
                        LAW OVERRIDING IT. THE CT THEN REFERENCES STARE DECISIS AND REAFFIRMS MIRANDA‘S
                        CONSTITUTIONAL STATUS, AND THEN SAYS THAT JUST BECAUSE ELSTAD ALLOWS THE
                        FRUITS OF A VIOLATION TO BE ADMISSIBLE IN COURT DOESN‘T MEAN MIRANDA‘S NOT
                        CONSTITUTIONAL, IT JUST MEANS THAT THE 4TH AND 5TH AMENDMENTS ARE DIFFERENT.

                        HARRIS V. NEW YORK (1971): A VOLUNTARY STATEMENT TAKEN IN VIOLATION OF MIRANDA
                        CAN BE USED TO IMPEACH TESTIMONY DIRECTLY RELEVANT TO CHARGED CONDUCT.
                       ―The shield provided by Miranda cannot be perverted into a license to use perjury by
                        way of a defense, free from the risk of confrontation with prior inconsistent
                        utterances.‖ The Ct. is basically saying that they‘re not going to let perjury go
                        unchallenged.
                       This gives the police no incentive to obey Miranda because they‘re not losing
                        anything by violating it.
                        ANDERSON: W HEN D REMAINS SILENT POST-WARNINGS, THE PROSECUTION MAY NOT USE
                        THE SILENCE TO CHALLENGE D AS TO WHY HE DIDN‘T BRING UP AN AFFIRMATIVE DEFENSE
                        (SUCH AS SELF DEFENSE) WHEN THE POLICE FIRST ASKED ABOUT IT. IF YOU TELL D HE CAN
                        REMAIN SILENT, IT IS UNFAIR TO LATER USE THAT SILENCE AGAINST HIM.

                        DOYLE V. OHIO (1976): IF IT‘S AN UNWARNED SILENCE – D MERELY DOESN‘T COME
                        FORWARD – THEN D‘S SILENCE MAY BE BROUGHT UP IN COURT BECAUSE IN THAT CASE D
                        WASN‘T RELYING ON THE WARNINGS.
    C. EXCLUDABILITY
        i.  Testimony v. Evidence
              If you have an excludable sentence, but go and find physical evidence, then you can
               include the physical evidence.
              a violation of Miranda doesn‘t mean that all the fruits of that statement are going to be
               suppressed like physical evidence, impeachment
         ii.  Voluntary v. Involuntary
            If the statement were truly involuntary, then the statement would be excludable.
            Compelled Grand Jury Statements cannot be used
            if violate Miranda, that is not necessarily involuntary- can be used to impeach or for fruits
    D. INCENTIVES FOR THE POLICE:
                        MISSOURI V. SEIBERT (2004) (SUPREME COURT OF MO): NOT FRUIT OF POISONOUS TREE
                        ANALYSIS, INSTEAD LOOKING TO SEE IF WARNINGS WERE SUFFICIENT IN THIS CONTEXT
                        Facts: They questioned her without warnings, which she answered. Then they gave
                        her warnings. She waived, she understood her warnings. She wasn‘t coerced. But
                        they asked her questions in the house, and then mirandized her and brought her to

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                        the station house and then did the same questions. The cops admit trying to get
                        around Miranda.
                        Holding: Elstad, they heard an off-hand comment in the house. They were delayed
                        in the house, so no intent.
                          Court Looks @: How similar the questions were the second time around?
                        US V. PATANE, SUPP P. 161 (2004) QUESTION OF GOOD OR BAD FAITH, EVEN IF
                        STATEMENT IS INADMISSABLE, PHYSICAL EVIDENCE ATTAINED FROM STATEMENT IS
                        ADMISSABLE SINCE NO EVIDENCE OF BAD FAITH.

                        COLORADO V. CONNELLY, P. 844 (1987) D APPROACHES PO AND OFFERS CONFESSION.
                        PO MIRANDIZES. PO DIDN‘T DO ANYTHING COERCIVE, SO CONFESSION IS OK, EVEN IF
                        STATEMENTS ARE UNRELIABLE.
                        Facts: D approaches police officer and offers to make confession about
                        murder. Officer gives Miranda warning, ? still wants to talk. ? brought into station,
                        still wants to give confession. D‘s argument in this case is that he is not competent to
                        voluntarily give this statement.

XXX. IDENTIFICATION PROCEDURES
    A. EYE-WITNESS IDENTIFICATION
    B. TAINTED LINE-UP FACTORS TO CONSIDER:
         i.  Only Prosecution is Barred from Raising Line-Up
        ii.  The burden is on the prosecution to show that the in-court ID is not tainted
       iii.  Factors to consider when deciding whether the courtroom ID is tainted:
             Prior opportunity to observe the alleged criminal act (how clear was W‘s view of the
               crime; how good a look did he get at D)
             Existence of any discrepancy btwn any pre-lineup description and the D‘s actual
               description
             Any ID prior to lineup of another person
             The ID by picture of the D prior to the lineup
             Failure to identify D on a prior occasion
             Lapse of time between the alleged act and the lineup ID
    C. THE 6TH AM RIGHT TO COUNSEL DURING POST-INDICTMENT LINE-UP
           For the 6th Am right to attach, there must be both a critical stage AND confrontation.
    D. PROSECUTION HAS BURDEN OF PROOF TO SHOW LINE-UP WAS NOT TAINTED
                        UNITED STATES V. WADE (1967): D HAS THE RIGHT TO HAVE A LAWYER PRESENT AT A
                        POST-INDICTMENT LINEUP; IF THE LINEUP WAS TAINTED, THE PROSECUTION MUST PROVE
                        THAT THE TAINT HAS NOT INFECTED THE WITNESS‘ ABILITY TO MAKE AN IN-COURT ID/MADE
                        ANY SUBSEQUENT IN-COURT ID INVALID

                        GILBERT V. CALIFORNIA: A PER SE EXCLUSIONARY RULE IS APPLICABLE TO OUT-OF-COURT
                        IDS MADE IN VIOLATION OF THE 6TH AM. SO IF YOU HAVE A LINEUP WITHOUT A LAWYER
                        PRESENT, THE ID IS ALWAYS EXCLUDED.

                        NOTE: W HAT HAPPENS IF COUNSEL IS NOT PRESENT AT A LINEUP AND A WITNESS IDS D,
                        THAT ID IS THEN NOT ADMITTED IN COURT, BUT THE WITNESS THEN LATER IDS D SITTING IN
                        COURT? IF THE PROSECUTION GETS THE IN-COURT ID, THAT‘S ADMITTED.
                          D can attack it by raising the tainted lineup and saying it was suggestive.
                          But then the fact of the lineup is admitted.
                         Wade and Gilbert say that, re in-court ID, the prosecutor has to show by clear
                           and convincing evidence that the in-court ID is not tainted by the previous
                           impermissible lineup.
                        KIRBY V. ILLINOIS (1972): THERE IS NO RIGHT TO COUNSEL AT A PRE-INDICTMENT LINEUP
                        BECAUSE THAT IS NOT A CRITICAL STAGE IN THE GOVERNMENT‘S PROSECUTION OF DTHE



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                        6TH AM RIGHT ATTACHES ONLY AT OR AFTER THE INDICTMENT/ARRAIGNMENT, WHEN
                        ADVERSARY JUDICIAL PROCEEDINGS HAVE BEEN INITIATED AGAINST HIM.
                          This is a very formalistic view. The Ct. says that Wade‘s discussion of the
                           need for counsel to protect the process is dicta.
                        PA HAS REJECTED THAT PROPOSITION. GIVEN THE CRITICAL NEED, NOT GOING TO DRAW
                        THE LINE BTWN POST-ARRAIGNMENT, POST-INDICTMENT. LOTS OF STATES HAVE REJECTED
                        KIRBY AS MAKING NO SENSE IN LIGHT OF W ADE AND THEREFORE REQUIRE A LAWYER TO BE
                        PRESENT AT ALL LINEUPS.

                        NOTE: EVEN IN JURISDICTIONS WHERE KIRBY IS REJECTED,
                        MOORE V. ILLINOIS (1977): THE RIGHT TO COUNSEL CAN ATTACH AT A PRELIMINARY
                        HEARING IF THAT IS THE START OF THE ADVERSARY PROCEEDINGS. UNFAIRNESS OF
                        CONFRONTATION AND CRITICAL STAGE OF TRIAL

                        SEE ARTICLE: RE: DUE PROCESS ISSUES FOR THE MANNER OF HOW PRE-TRIAL
                        IDENTIFICATIONS ARE DONE:

                        WADE: LINE-UP WAS POST- ARRAIGNMENT, THE 6TH AMENDMENT FACIALLY APPLIES
    E. RIGHT TO COUNSEL IN PHOTO SPREAD ID‘S: DUE PROCESS PROTECTIONS
       i.   While in some situations you have the right to counsel, the Court in Stovall said that
            in ALL situations involving confrontations, D has a right to fairness under due
            process.
                 UNITED STATES V. ASH (1973): NO RIGHT TO COUNSEL AT PHOTO ARRAYS BECAUSE NO
                 CONFRONTATION BETWEEN W ITNESS AND D. FOR THE 6TH AM RIGHT TO ATTACH, THERE
                 MUST BE BOTH A CRITICAL STAGE AND CONFRONTATION.
    F. 6TH AMENDMENT RIGHT TO COUNSEL IN PHOTO LINE-UP‘S
            Pre-Arraignment: no 6th Amendment right to counsel
            Post-Arraignment: there is a 6th Amendment right to counsel
                        i. It‘s the same as wade, it‘s after the arraignment process
                    But the court in Ash says no, because there‘s no confrontation btwn the D and
                       the W.
            But the violation, might be worse, the right to counsel might be more impt. @ a photo
              spread, because the D is not there, and D can not be compared to other folks.
                     But Is this administratively ―prepping‖ the witness?
            Confrontation: if confrontation is the critical point, Kirby doesn‘t apply, because it was
              before the ―start point‖
    G. LINE-UP REQUIREMENTS:
           Must be a physical confrontation
           Must be a 6th Amendment right to counsel attaching (after the ―critical start point‖)
           No 5th Amendment due process right attaches here, unless it‘s a physical lineup.
    H. PHOTO-SPREAD REQUIREMENTS:
             No counsel is required for counsel, but there may be a 5th Amendment Due Process
               Concern:
             Is there adequate procedures to substitute for actual presence of counsel in Wade such
               as in Miranda?
             Dissent: might be the rule now, b‘c the court changed over.
             1) An ID is potentially invalid only if it was both suggestive AND unnecessary.
             2) IF the ID process was both suggestive and unnecessary, then look to see if it was also
               unreliable.
    I.   DUE PROCESS LIMITATIONS ON POLICE CONDUCT OF ID‘S
                        STOWALL V. DENO REGARDLESS OF W HETHER COUNSEL IS THERE OR NOT, EXIGENT
                        CIRCUMSTANCES (VICTIM NEAR DEATH) MAY OVERCOME OVERLY SUGGESTIVE ID
                        PROCCESS



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                   M ANSON V. BRAITHWAITE (1977): TO DETERMINE IF AN ID PROCEDURE VIOLATES DUE
                   PROCESS, LOOK TO THE TOTALITY OF THE CIRCUMSTANCES TO DETERMINE 1) IF THE ID WAS
                   SUGGESTIVE AND UNNECESSARY; IF YES THEN 2) DETERMINE THAT THE ID WAS UNRELIABLE.
    J. RELIABILITY FACTORS OF EYE W ITNESS
       i.   The court should determine reliability based on factors like:
                       The opportunity of the witness to view the criminal at the time of the crime
                       The witness‘ degree of attention
                       The accuracy of his prior description of the criminal
                       The level of certainty demonstrated at the confrontation
                       The time between the crime and the confrontation
         ii.    Reform: Braightwright Article: everyone agrees the factors the Court used here was
                wrong.
                    Instead of Showing Photos and Lineups where everyone is shown @ one time,
                       you show the photos sequentially. (1 @ a time)
                    Make sure the suspect understands that the Suspect may not be in line-up
                    Run a Double-Blind line-up: so the person who runs the line-up doesn‘t know
                       who the suspect is, so no hint may be given to the witness, intentionally or
                       unintentionally.
                    Evaluate the level of certainty of the witness @ the time the Witness makes the
                       ID, instead of later when the W comes to know more things about the case.
    K. IF ID PROCESS IS NOT CONSTITUTIONAL, WHAT CONSEQUENCES TO IN-COURT IDENTIFICATION?
                        WADE: THE OUT OF COURT ID IS SUPPRESSED, UNLESS THE PROS. CAN SHOW THAT THE ID
                        IN COURT WAS DUE TO EXIGENT CIRCUMSTANCES, ARISING OUTSIDE OF THE LINE-UP.

                        TRIAL JUDGE MUST DETERMINE THAT WITNESS IS TESTIFYING FROM INCIDENT, NOT PHOTO
                        IDENTIFICATION—IF THIS HAPPENS, PROSECUTOR CAN USE BOTH IN-COURT AND OUT-OF-
                        COURT IDENTIFICATION.

                        THE REAL DISPUTE OF MANSON
                   Court points to these factors, but in the last 25-30 years, lots of social science
                      research (controlled experiments on the reliability of eye witness)
                   The more sure people are, the less reliable their IDs are.
                   There is a sharp drop-off of memory, w/in several hours of the incident, where
                      people have problems after a few hours, after a few days
    L. CROSS-RACIAL IDENTIFICATIONS
           When people pick someone out, they select the person that most closely resembles the
             person, as opposed to the person they‘re most sure is the person
           Maybe detective says, good that‘s the one, or what not and when they get to trial, the W is
             more sure.
           Largest reason for wrongful convictions is faulty Eye-witness ID‘s.
    M. EXCLUSIONARY RULE AND ID TESTIMONY :
                        KRUSE: PROSECUTION CONCEDED THAT THE OUT OF COURT ID WAS EXCLUDABLE, BUT THE
                        IN-COURT ID WAS FINE, SINCE THE W IS IN COURT TALKING ABOUT THE EVENT. THERE‘S NO
                        4TH AMENDMENT BAR TO THAT TESTIMONY.
                        CESALINI: WHEN A WITNESS IS INVOLVED IN THE SEARCH, IT‘S DIFFERENT THAN IF THERE‘S
                        JUST PHYSICAL EVIDENCE.

                        NOTE: IF THE DEFENDANT WANTED, THEY CAN BRING IN THE OUT OF COURT ID (EVEN IF IT‘S
                        BEEN SUPPRESSED) SO THEY CAN IMPEACH THE W ITNESS, TO PROVE THAT THE OUT OF
                        COURT ID WAS FAULTY.


XXXI. ENTRAPMENT


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           Undercover Agents and Entrapment: finding of entrapment means that the verdict will
             be not guilty--∆ has burden
           Undercover law Enforcement: if the officer hadn‘t engaged in the illegal activity, or the
             practice was so coercive or persuasive, that the crime wouldn‘t have happened.
           But for victimless crimes: the only way to investigate that is having the gov‘t official on the
             inside.
    A. BUT FOR NOTION:
           But for the Gov‘t encouragement or inducement, the crime wouldn‘t have happened.
    B. EARLY ENTRAPMENT:
                    Cirrels & Sherman:
                    No Constitutional Argument
                    No Duress Argument
                    Statutorily Construction Argument: Congress didn‘t intend to punish someone for conduct
                     that was highly induced by gov‘t.
           i.       Problem was the test btwn: Giving the Criminal the OPPORTUNITY
                         CIRRELS: ALCOHOL CASE IN THE 1930S.
                         Facts: Gov‘t Agent went to person‘s home, asked person to buy liquor. Agent
                         befriended person over a couple of years.
                         Holding:
    C. PRE-JACOBSON
        i.  Subjective Test: eyes of defendant.
               subjective test: whether this ∆ was predisposed to commit a crime—if not then he has
                the defenseentrapment is proved if government agent implants in the mind of an
                innocent person the disposition to commit the crime and induces its commission in order
                to prosecute—is predisposed if when he is first approached by agent he is ready and
                willing to commit if presented with favorable opportunity to do so
          ii.  Objective Test:
                 objective test: looks to actions of the police and whether that kind of government conduct
                  is reasonably likely to create a situation where an innocent person who would have not
                  committed a crime was nonetheless persuaded
                          SHEARMAN: DRUG CASE, WHERE UNDERCOVER AGENT GOT PERSON TO BUY HIM DRUGS
                          BECAUSE OF SEVERE WITHDRAWAL SYMPTOMS: PO ENFORCED THE PRE-DISPOSITION MORE
                          THAN THE USUAL AMOUNT.
         iii.       pre-dispostion is usually a jury question, but here the Court sort of put in a 4th
                    Amendment protection, making it a matter of law.
                        JACOBSON: QUESTION IS PRE-DISPOSITION TO BREAK THE LAW, NOT PRE-DISPOSITION
                        FOR PEDAPHILIA
         iv.        When Subjective Test Prevails:
           when subjective test prevails, entrapment is usually a question for the jury—objective
             goes to judge
           subjective--∆ will generally open the door for the government to introduce evidence
             regarding the ∆‘s reputation—obj NOT
           subjective π has burden of proving disposition beyond a reasonable doubt—if objective--∆
             has to prove that a normally law abiding person would likely have succumbed to the
             government‘s inducements
    D. DUE PROCESS LIMITATIONS
                         US V. RUSSELL: OUTRAGEOUS CONDUCT ON THE PART OF THE GOVERNMENT MAY INVOKE
                         DUE PROCESS CONCERNS) WHO INSTIGATED THE CRIMINAL ACT WILL BE IMPORTANT.
                         MAKING THE METHAMPHETAMINES WERE D‘S IDEA, GOV‘T JUST PROVIDED SUPPLIES.




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                        HAMPTON V. US: ALTHOUGH PO ENGAGED IN ILLEGAL ACTIVITY, BEYOND THE SCOPE OF
                        THEIR DUTIES, DUE PROCESS DOES NOT FREE THE D, REMEDY IS INSTEAD TO PROSECUTE
                        THE POLICE. GOV‘T PROVIDED DRUGS TO D AND ALSO HAD A FAKE BUYER.

                        LOWER COURT CASES WHERE COURT‘S HAVE USED THIS DOCTRINE TO AVOID
                        PROSECUTION:
                       3d Cir.: one of the people who got very lately involved in the conspiracy, was
                        basically entrapped by his involvement.
                 ANTI-VIETNAM: RUDOVSKY‘S 1970S CASE:
                 Facts: represented a group of radical catholics against the Vietnam war. Camden
                 28. Broke into the draft board. Gov‘t infiltrated the group. They were having trouble
                 figuring out how to get into the building and how to get into files. @ each stage, of
                 how to advance, the informant provided all the materials.
    E. GOV‘T TARGETS POLITICAL OFFICIALS
               Where gov‘t ran a sting on Philadelphia officials who were taking money in return for a
                vote for a particular way on a project.
               1 Counsel member refused for a year and a half, but finally the money was upped enough
                so that he took it.
               But under Jacobson, you lay down enough money, in front of enough people, someone‘s
                bound to take it. Only 1 of the counsel members were acquitted.
               1st Amendment Concerns, re: partisan efforts to go after particular people of particular
                party affiliation?

XXXII. GRAND JURY:
    A. W HAT‘S THE STANDARD FOR THE GOV‘T‘S RIGHT TO TURN OVER THE RECORDS?
           As long as the subpoena is reasonably related to the scope of the investigation.
           Gov‘t can‘t be arbitrary, Can‘t go on fishing expedition, acting outside the scope of the
             grand jury investigation.
    B. GRAND JURY:
               purpose is investigatory to establish crimes
               Serves the function of indicting
               7th Amendment: federal prosecution, the gov‘t can not process, without a federal
                indictment.
               Has not applied that protection against the state.
                        HUBBEL: BROAD BASE SUBPOENA SUBJECT TO ATTACK.HUBBEL PRODUCED DOCUMENTS
                        AS CONDITION OF PLEA TO CHARGE 1. W HILE SERVINCE SENTENCE, HE ANSWERED GOV‘T
                        SUBPOENA FOR MORE DOCUMENTS, WHICH THE GOV‘T THEN USED AGAINST HIM.
                        Holding: gov‘t can seek documents. But where it fits into the gov‘t processes---the
                        gov‘t doesn‘t know if there‘s criminal activity there, the fact that the defendant goes
                        through and selects which documents are the criminal documents, to that extent, can
                        not use the defendant in that matter.
                       Broad base subpoena is now subject to attack.
                        5th Amendment protects against the “Act of production‖. They don‘t say that the
                            documents themselves are protected against the 5th Amendment, but they are
                            putting limits and requiring the government to know something in advance.
                        Concurring: Thomas Scalia Concurring: they‘d re-exaine the question as to
                            whether or not the 5th amendment against the content of those documents,
                            particularly the kind of documents that the people are required to keep. (back to
                            boyd?)

        Preliminary hearings, initial appearances,              Ex parte proceedings that will not
         and arraignments.                                        adversely affect D’s legal rts, such as
        Also extends to any informal meeting b/w D               warrant procedures

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         and rep of the state that is designed to or            6AM does not apply past opponents
         likely to elicit incriminating info (??AFTER            sentencing. So, parole revocation is not
         formal proceeding)                                      part of criminal process, but, DP
        Wade Post-indictment line-up conducted in               nonetheless mandates certain
         the absence of a lawyer, and without valid              procedure protections
                               th
         waiver, violated 6 amendment right to                   pre-indictment line-ups: no per se
         counsel.                                                exclusionary rule for failure to allow
        In order for rt to counsel to attach,                  presence of counsel at line-up before
         need formal proceedings and line-up                     formal proceedings have begun
                                                                Kirby – when cops abuse ID procedures,
                                                                 such abuses are not beyond Const
                                                                 scrutiny – i.e. no per se exclusionary
                                                                 rule, rather DPC forbids line-up that is
                                                                 unnecessarily suggestive

    C. NOW HAVE TO TURN OVER DOCUMENTS:
           5th Amendment: sharp change from Boyd, where there‘s an absolute 5th Amendment
             protection to documents, but was overturned.
           Even if the documents you‘re required to keep for business have criminal activity: have to
             turn them over
           Only don‘t have to turn over the documents, if the act of producing the documents
             somehow proves that documents are yours.
    D. PATRIOT ACT: THE HIDDEN STUFF:
               expanded the gov‘t‘s power to secure information, either by administrative warrants,
                ―national security letters‖, or other means, whereby 3d parties have to turn over
                information about customers to the gov‘t. These are not by search warrant, these are by
                administrative request (nat‘l. security letters), which the gov‘t. has very little required
                showing, for getting the same as a subpoena.
               Other part of the law, the person who‘s subpoena‘d is barred fomr indcating to the
                person‘s records that they‘ve been subpoena‘d.
                  CASE: INTERNET SERVICE PROVIDER, WANTED TO CHALLENGE THIS POWER, BUT INITIALLY,
                  UPON READING THE LAW , THE ISP DIDN‘T EVEN KNOW IF IT COULD GO TO AN ATTORNEY.
    E. FOREIGN INTELLIGENCE & CRIMINAL INVESTIGATION:
               the warrant can be now, just a purpose of foreign intelligence, not the primary purpose.
               You can be subject to surveillance for this kind of warrant, but gov‘t doesn‘t have to tell
                you about the investigation until the point where they bring an indictment against you.
               Appellate FISA Court: heard the appeal, but only the gov‘t was arguing, the ACLU
                submitted an amicus brief. Couldn‘t go to the Supreme Court, b‘c there was no provision
                to do so, no one had standing.
               if the primary purpose was not criminal investigation, then 4th amendment protections
                don‘t apply here.




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                                                       Chapter 8
                                 i. PRIVILEGE AGAINST SELF-INCRIMINATION

§ 8.01 Text and Interpretation of the Privilege Against Self-Incrimination

The Fifth Amendment to the United States Constitution provides in relevant part that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.‖

          [A] “Person”
The privilege against self-incrimination applies only to natural persons. It may be invoked by witnesses as well as
defendant(s). Corporations, associations, partnerships, and other entities cannot avail themselves of the privilege (the
―collective entity‖ doctrine), but a sole proprietor may.

         [B] “Compelled”
The Fifth Amendment is violated when the government compels a person, by physical or mental force, to provide
incriminating oral or documentary testimonial evidence, e.g., forced confessions. [See Chapter 10, Confessions.]

          [C] “Criminal Case”
One may invoke the privilege against self-incrimination in any civil or criminal proceeding, whether formal or
informal – e.g., grand jury proceedings, trials, administrative hearings, police interrogations – where statements could
be used to incriminate him in a subsequent criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70 (1973). The
privilege is available only where the possible consequence of the incriminating statement is criminal prosecution; it
may not be invoked to shield against personal disgrace, loss of employment, or civil confinement.

         [D] “Witness Against Himself”

                  [1] Testimonial Evidence
A person is deemed a ―witness against himself‖ when he provides incriminating testimonial or communicative
evidence. Evidence is of a testimonial or communicative nature if it expresses, either directly or indirectly, a factual
assertion or one‘s thoughts about the commission of a crime. Doe v. United States, 487 U.S. 201 (1988). The
communication can be verbal, such as an oral confession, or non-verbal, such as nodding or shaking one‘s head or
making other gestures that communicate thoughts or facts.

Under some circumstances, an incorrect answer to an otherwise non-incriminating statement may also be deemed
testimonial. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), a drunk driving case, the Court held that an incorrect
answer regarding the date of the suspect‘s sixth birthday was testimonial as it supported the factual inference that
the defendant‟s mental faculties were impaired. (The Court distinguished the incorrect answer, which reflected
his mental processes, from the slurred nature of his words in general, which were deemed to be physical evidence.)

The privilege generally applies to documentary evidence as well if the documents incriminate the person compelled
to produce them. However, as the privilege against self-incrimination is personal, it may not be asserted by a third-
party (e.g., a suspect‘s accountant) who is compelled to produce documents that incriminate another.

          [2] Physical Evidence
The Fifth Amendment does not preclude the government from compelling a person to provide real or physical
evidence. Schmerber v. California, 384 U.S. 757 (1966) (upholding compulsory taking of a blood sample in order to
test for alcohol after the defendant was arrested for driving under the influence).

Speech does not always constitute testimonial evidence and may be deemed physical evidence, for example:
      a suspect in a lineup compelled to speak the words allegedly spoken by the perpetrator of the crime under
       investigation for the purpose of voice recognition.
      a compelled writing sample used to analyze the handwriting itself, not the content.
      slurred speech, suggestive of intoxication.

Other conduct producing evidence that is deemed physical rather than communicative, and therefore, to which the
privilege does not apply, includes:
         putting on clothing to see if it fits.
         standing in a lineup.
         moving one‘s eyes or walking on a straight line as part of a sobriety test.
         giving blood after being arrested for driving under the influence of alcohol.

§ 8.02 Immunity

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If a judge determines that a witness has legitimately asserted the privilege against self-incrimination regarding a given
matter, the prosecution cannot compel the witness to testify as to that matter unless the government obtains an
immunity order. An immunity order requires the witness to testify while providing him with at least as much protection
as the privilege itself.

Two forms of immunity may be granted to a witness. “Transactional” immunity protects a witness from prosecution
for any offense that is the subject of the questioning. “Use” immunity permits prosecution of the witness regarding
the matter on which he is questioned but precludes admission of the compelled testimony at his criminal trial.

§ 8.03 Exceptions to the Privilege Against Self-Incrimination
The privilege against self-incrimination applies to situations where the statements could be used in a criminal
proceeding. Thus, testimonial evidence, even if incriminating may be compelled in a variety of non-criminal contexts.

          [A] Required-Records Doctrine
Under the ―required-records‖ doctrine, a party may be compelled to produce documents that it is required by law to
maintain. The doctrine applies where the statutory record-keeping requirement is:
  (1) imposed in an essentially non-criminal and regulatory area;
  (2) directed at the public at large, not at a select group inherently suspect of criminal activities; and
  (3) rationally related to the regulatory purpose.

See, e.g., Shapiro v. United States, 335 U.S. 1 (1948) (upholding the constitutionality of federal regulations issued
under the Emergency Price Control Act, which required certain licensed businesses to maintain records of their
business activities and to make them available for inspection by the government upon request); California v. Byers,
402 U.S. 424 (1971) (upholding a state hit-and-run statute that required drivers involved in a vehicular accident to
stop at the scene and report name and address).

          [B] Object of Regulatory Interest
The ability to invoke the privilege against self-incrimination is limited when a person assumes control over items or
persons that are the legitimate object of the government‟s non-criminal regulatory authority. In Baltimore City
Department of Social Services v. Bouknight, 493 U.S. 549 (1990), the Supreme Court ruled that a mother who had
previously lost custody of her child because of suspected child abuse, but was permitted temporary custody of the
child subject to various court conditions, could not assert the privilege against self-incrimination to resist compliance
with a subsequent court order that she produce the child or otherwise reveal his whereabouts. Because the child‘s
care and safety had become an object of the state‘s regulatory concern, the mother, upon accepting temporary
custody of the child, became subject ―to the routine operation of the regulatory system‖ and thus was required to
comply with its requirements.




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                                                       Chapter 9
                                ii. CUSTODIAL INTERROGATION

§ 9.01 Miranda v. Arizona

The landmark case of Miranda v. Arizona, 384 U.S. 436 (1966), resulted from the consolidation of four cases on
appeal. In each case, the suspect was taken into custody, questioned in a police interrogation room in which the
suspect was alone with the interrogators, and never informed of his privilege against self-incrimination.

Miranda held that any statement, whether exculpatory or inculpatory, obtained as the result of custodial
interrogation could not be used against the suspect in a criminal trial unless the police provided procedural
safeguards effective to secure the suspect‘s privilege against compulsory self-incrimination. ―Custodial
interrogation‖ is defined in Miranda as ―questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.‖

§ 9.02 “Custody”

A person is deemed to be in custody if he is deprived of his freedom of action “in any significant way.”
―Custody‖ requires the existence of coercive conditions that would cause a reasonable person to believe, under all
the circumstances surrounding the interrogation, that he is not free to go.

Not all coercive environments equate to ―custody.‖ For example, a police interrogation room may be deemed a
coercive environment but the totality of the circumstances may indicate that a person is not in custody – e.g., he
came to the police station voluntarily, was informed prior to questioning that he was not under arrest, and he was free
to leave the police station at any time. See Oregon v. Mathiason, 429 U.S. 492 (1971); California v. Beheler, 463 U.S.
1121 (1983).

Brief detention by the police likewise does not necessarily put one in custody, for example, brief questioning during a
routine traffic stop or roadblock. Berkemer v. McCarty, 468 U.S. 420 (1984).

§ 9.03 “Interrogation”

For purposes of Miranda [384 U.S. 436], ―interrogation‖ refers to express questioning or its “functional
equivalent,” i.e., ―any words or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.‖
Rhode Island v. Innis, 446 U.S. 291 (1980). For example, if the police know the person in custody may be
susceptible to certain forms of persuasion, any statements or actions designed to play upon such susceptibilities may
be deemed the functional equivalent of interrogation.

In Innis, a murder suspect was being transported to the police station when the police commented that they hoped
that the murder weapon, which had not yet been located, would not be found by any children from a nearby school for
the handicapped. In response, the suspect, who had previously requested a lawyer, revealed the location of the gun.
The Court held that the comments were not the functional equivalent of interrogation because it found:
          (1) the comments were brief;
          (2) the comments were not particularly evocative;
          (3) the suspect was not disoriented or upset when the comments were made;
          (4) there was no evidence that the police should have known that the suspect would be susceptible to an
appeal to his conscience.

§ 9.04 Procedural Safeguards: The “Miranda Warnings”

         [A] Content of Miranda Warnings

The Court in Miranda [384 U.S. 436] noted that Congress and the states are free to develop procedural safeguards
for protecting a suspect‘s Fifth Amendment rights during custodial interrogation. However, unless they are ―fully as
effective‖ as those described in Miranda, the police must apprise the suspect issue, prior to custodial interrogation,
that:
          (1) the suspect has a right to remain silent;
          (2) anything said can and will be used against the suspect in court;
          (3) the suspect has the right to consult with a lawyer and to have his lawyer present during interrogation;
          (4) if the suspect is indigent a lawyer will be appointed to represent him.

         [B] Right to Remain Silent

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Miranda [384 U.S. 436] states that, once warnings are given, if the suspect indicates that he wishes to remain silent,
the interrogation must cease. The police must honor a suspect‘s right to silence after he asserts the privilege but are
not necessarily precluded from attempting to interrogate the suspect under different circumstances. See Michigan v.
Mosley, 423 U.S. 96 (1975) (holding that the police did not violate the defendant‘s Fifth Amendment rights when the
interrogation ceased immediately upon request; two hours elapsed; the subsequent questioning was by a different
officer, in a different location, for a different crime; and Miranda warnings were restated).

         [C] Right to Counsel During Interrogations

                   [1] Fifth Amendment Right

When a suspect in custody invokes his right under Miranda [384 U.S. 436] to consult with an attorney, the police must
cease the interrogation until the suspect‘s attorney is present unless the suspect initiates further ―communication,
exchanges, or conversations‖ with the police. Edwards v. Arizona, 451 U.S. 477 (1981). This rule is intended ―to
prevent police from badgering a defendant into waiving his previously asserted Miranda rights‖ and applies to all
interrogation, including questioning about crimes other than the one for which the suspect is in custody. However,
the Edwards rule does not apply unless a suspect unambiguously asserts his right to counsel. Davis v. United
States, 512 U.S. 452 (1994).

Furthermore, once a suspect in custody invokes his Miranda [384 U.S. 436] right to counsel, the police may not re-
initiate interrogation at any time thereafter unless counsel is present. Minnick v. Mississippi, 498 U.S. 146 (1990).

Where the suspect initiates communications with the police in the absence of counsel, the police may recommence
interrogation upon obtaining a valid waiver of his Fifth Amendment rights. A suspect initiates communications,
exchanges or conversations by any comment or inquiry that indicates his desire to engage in a discussion relating
directly or indirectly to the investigation. Comments or inquiries ―relating to routine incidents of the custodial
relationship,‖ such as a request for water or to use a telephone, do not qualify as ―communications, exchanges, or
conversations‖ and thus do not properly trigger further police interrogation. Oregon v. Bradshaw, 462 U.S. 1039
(1983).

                   [2] Sixth Amendment Right

The right to counsel guaranteed as a result of Miranda v. Arizona [384 U.S. 436] falls within the protections of the
Fifth Amendment and is available to a suspect upon being taken into custody. This right differs in various respects
from the right to counsel in the Sixth Amendment, which, with the exception of the ruling in Escobedo v. Illinois, 378
U.S. 478 (1964) (a pre-Miranda decision), has been held to attach only upon commencement of criminal proceedings,
e.g., upon filing of an indictment. [See Chapter 11, Sixth Amendment Right to Counsel: Interrogation.]

§ 9.05 Waiver of Miranda Rights

         [A] Elements of Valid Waiver
Miranda [384 U.S. 436] states that a valid waiver of Fifth Amendment rights during interrogation ―could‖ be found
when, after the reading of Miranda rights, a suspect expressly states a willingness to make a statement, without the
presence of an attorney, ―followed closely‖ by such statement. The validity of the waiver must be based on an
assessment of ― ‗the particular facts and circumstances surrounding that case, including the background, experience,
and conduct of the accused.‘ ‖ Edwards v. Arizona, 451 U.S. at 482 (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).

          [B] Voluntary, Knowing, and Intelligent Waiver
In order to be valid, a waiver must have been given ―voluntarily, knowingly, and intelligently.‖ Colorado v. Connelly,
479 U.S. 157 (1986). A voluntary waiver is ―the product of a free and deliberate choice rather than intimidation,
coercion, or deception.‖ A knowing and intelligent waiver is made with ―full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.‖ Moran v. Burbine, 475 U.S. 412 (1986). A
waiver cannot be deemed ―knowing and intelligent‖ unless the police issued proper Miranda [384 U.S. 436] warnings.

         [C] Express and Implied Waiver
A valid waiver may not be presumed simply from the suspect‘s silence following reading of the Miranda [384 U.S.
436] warnings or from the fact that he confesses. Nevertheless, an express statement of waiver is not invariably
necessary. North Carolina v. Butler, 441 U.S. 369 (1979). In some cases, waiver may be clearly inferred from the
suspect‘s words and actions that follow Miranda warnings, although the Supreme Court has given little guidance on
when such circumstances exist.

§ 9.06 Inapplicability of Miranda

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          [A] Interrogation by Undercover Police
Miranda [384 U.S. 436] warnings are not required if the suspect being questioned is unaware that the interrogator is a
police officer. Illinois v. Perkins, 496 U.S. 292 (1990) (an undercover police agent, posing as a criminal, was
positioned in the defendant‘s cellblock and engaged the defendant in a conversation designed to elicit details of the
crime for which he was suspected; the Court held that such statements, although the result of interrogation while in
custody, and in the absence of Miranda warnings, were admissible).

         [B] Physical Evidence
Since the privilege against compulsory self-incrimination applies only to testimonial or communicative evidence,
Miranda [384 U.S. 436] warnings are not required in order for the police to compel the production of physical or real
evidence, such as a blood, breath, or handwriting sample. [See Chapter 8, Privilege Against Self-Incrimination.]

          [C] Exigent Circumstances
A public safety exception to Miranda [384 U.S. 436] allows the police to interrogate a suspect prior to Miranda
warnings if an exigency exists that requires immediate police action to ensure public safety, e.g., to locate a loaded
weapon in a public place. The questions asked prior to issuance of the warnings must be directed at the exigent
circumstances only. New York v. Quarles, 467 U.S. 649 (1984) (observing that the defendant, who had just attacked
a woman and then fled into a grocery store, had an empty shoulder holster, an officer validly asked the defendant,
without issuing Miranda warnings, where the gun was).

        [D] Routine Booking Questions
Miranda [384 U.S. 436] warnings need not be issued prior to asking a suspect in custody routine booking questions,
such as name, address, date of birth, and other biographical data necessary to complete the booking process.
Pennsylvania v. Muniz, 496 U.S. 582 (1990).

§ 9.07 Exclusionary Rule Under Miranda

        [A] Impeachment Exception
A statement obtained in violation of Miranda [384 U.S. 436] may be used to impeach a defendant at trial. Harris v.
New York, 401 U.S. 222 (1971).

          [B] Fruit-of-the-Poisonous-Tree Doctrine
The Supreme Court has interpreted Miranda [384 U.S. 436] to not support the “fruit-of-the-poisonous-tree”
doctrine. Michigan v. Tucker, 417 U.S. 433 (1974) (the government may call a witness to testify at trial, even if that
witness‘s identity became known as a result of a statement by defendant secured in violation of Miranda); Oregon v.
Elstad, 470 U.S. 298 (1985) (the government may introduce a defendant‘s own voluntary, post-Miranda, admissions,
even if they were obtained as a result of an earlier Miranda violation).

However, Tucker [417 U.S. 433] and Elstad [470 U.S. 298] were based on the premise that Miranda [384 U.S. 436]
was a ―prophylactic‖ but not a constitutional rule. Subsequently, the Court in Dickerson v. United States, 530 U.S.
428 (2000), departed from the reasoning in Tucker and stated that Miranda was in fact a constitutional decision.
Nevertheless, the Court has not thus far reversed its position on the inapplicability of the fruit-of-the-poisonous-tree
doctrine to statements obtained in violation of Miranda.




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                                                     Chapter 10
                                                    CONFESSIONS

§ 10.01 Voluntary Confessions
A confession that is freely and voluntarily made, following proper Miranda [384 U.S. 436] warnings, is admissible
against the defendant at a criminal trial. The voluntariness of a confession is to be assessed from the totality of all
the circumstances, taking into account both the characteristics of the accused and the details of the interrogation.

§ 10.02 Involuntary Confessions
A confession that results from police coercion violates the Fifth Amendment privilege against compulsory self-
incrimination. The following factors may negate the voluntariness of a confession.

          [A] Actual or Threatened Physical Force
A confession obtained by threatened or actual use of violence is inadmissible. Confessions have also been
invalidated when the police have ―warned‖ a suspect that, unless he confesses, he may be the victim of mob violence
or deadly attacks from fellow prisoners.

        [B] Deprivation
Confessions have been suppressed in cases in which the police deprived a suspect of food, water, or sleep, for an
extended period of time.

       [C] Psychological Pressures
Among the relevant factors that determine whether undue psychological pressure was imposed on a suspect are:
      length of custodial detention.
      whether the interrogation was prolonged.
      whether the questioning occurred in the daytime or at night.
      whether the interrogation is conducted incommunicado.
      the personal characteristics of the suspect (e.g., age, intelligence, level of education, psychological makeup,
       and prior experience with the police).

         [D] Promises of Leniency
A confession is not necessarily a product of coercion where the police expressly or implicitly promise leniency in
exchange for the suspect‘s cooperation. Arizona v. Fulminante, 499 U.S. 279 (1991) (repudiating Bram v. United
States, 168 U.S. 532 (1897), which held that a confession was involuntary if it was obtained by any promise for
leniency, ―however slight‖).

Lower courts have determined that some types of promises of leniency will render a confession involuntary, such as
assurances that some of the charges will be dropped or that the defendant will receive a reduction in punishment.
However, standing alone, courts rarely invalidate a confession based on a mere promise by the police to bring the
defendant‘s cooperation to the prosecutor‘s attention, or promise that a prosecutor will discuss leniency in exchange
for a confession, without in fact making any assurances as to results.

         [E] Threat of Harsh Legal Treatment
A confession procured by a threat of especially harsh treatment – directed at the suspect himself or another – may be
invalid. E.g., Rogers v. Richmond, 365 U.S. 534 (1961) (suppressing a confession as involuntary because it was
secured in response to a wrongful police threat to take the suspect‘s wife into custody).

Some lower courts have ruled that a confession is involuntary if the police threaten to inform the prosecutor of a
suspect‘s refusal to cooperate, since this is a threat to penalize the suspect for asserting his privilege against
compulsory self-incrimination.

         [F] Deception
Deception about the strength of the case against the suspect – e.g., if the police falsely inform a suspect that an
accomplice has already confessed – without more, generally will not invalidate a confession, although it may be a
factor weighed in an assessment of the voluntariness of the confession.

§ 10.03 Exclusionary Rule

        [A] Impeachment
A coerced confession is inadmissible at the defendant‘s criminal trial for all purposes, including impeachment.

         [B] Fruit-of-the-Poisonous-Tree Doctrine
The Supreme Court has not expressly addressed whether the fruit-of-the-poisonous-tree doctrine applies to coerced
confessions, but it is generally assumed that the doctrine does apply in such circumstances.

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Chapter 11
                           SIXTH AMENDMENT RIGHT TO COUNSEL: INTERROGATION

§ 11.01 Text of Sixth Amendment
The Sixth Amendment reads in relevant part: ―In all criminal prosecutions, the accused shall . . . have the
Assistance of counsel for his defence.‖

§ 11.02 When the Right Attaches
The Sixth Amendment right to counsel exists for ―criminal prosecutions.‖ Thus, the right attaches only upon
commencement of adversary judicial proceedings, such as preliminary hearing, indictment, information, or
arraignment. Brewer v. Williams, 430 U.S. 387 (1977).

§ 11.03 “Deliberate Elicitation”
The Sixth Amendment has been interpreted to prohibit the government from deliberately eliciting incriminating
information from an accused, in the absence of defense counsel, once adversary judicial criminal proceedings have
commenced. Massiah v. United States, 377 U.S. 201 (1964).

An investigatory technique constitutes elicitation if it is ―the equivalent of direct police interrogation.‖ Kuhlmann v.
Wilson, 477 U.S. 436 (1986). Deliberate elicitation occurs when the government through its overt or covert police
agent:
         (1) acts with the purpose of eliciting incriminating information from the accused regarding the pending
charges, without regard to the likelihood that the elicitation will be successful; or
         (2) creates an opportunity for the accused to make incriminating statements about the pending charges.

       [A] Police Acts With Purpose
Examples of purposeful police conduct that may elicit incriminating statements from the accused include:
      an officer formally interrogates the accused.
      an undercover agent engages the accused in a conversation about the criminal activity.
      an officer makes statements that are designed to play on the conscience of the accused in order to induce
       incriminating remarks.

          [B] Police Create an Opportunity for Incriminating Statements
Deliberate elicitation may be found where the government creates a situation likely to induce the defendant to
make incriminating statements. For example, in United States v. Henry, 47 U.S. 264 (1980), the FBI placed an
informant – who was to be paid on a contingent basis – in the defendant‘s jail cell after he had been indicted. The
FBI advised the informant ―to be alert to any statement‖ the defendant made, but not to initiate any conversations with
the defendant or ask him questions. Nevertheless, the informant engaged the defendant in conversation, during
which he made incriminating statements that the government sought to introduce at his trial. Focusing on several
factors, including that the paid informant had an incentive to elicit information from the defendant, the Court found that
the government had created an opportunity for the accused to incriminate himself, in the absence of counsel, thereby
violating his Sixth Amendment right.

The government may be found to have unlawfully created an opportunity for the accused to incriminate himself in
violation of the Sixth Amendment even if the encounter with an informant or undercover agent is initiated by the
accused himself. In Maine v. Moulton, 474 U.S. 159 (1985), subsequent to the defendant‘s indictment, the police
installed a recording device on an informant‘s telephone. The defendant, unaware of such action, telephoned the
informant three times, during which he discussed the criminal charges against them. The Supreme Court again held
that the defendant‘s Sixth Amendment right to counsel was violated by the government‘s creation of an opportunity
for defendant to incriminate himself, irregardless of the fact that the defendant initiated the conversations.

However, if a government agent does no more than listen, without proactively inducing the accused to make
incriminating statements – such as by placing an undercover agent or informant in an accused‘s jail cell and merely
reporting the accused‘s unsolicited incriminating statements – such action does not constitute deliberate elicitation.

§ 11.04 “Offense-Specific” Nature of the Right

The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the Sixth Amendment inquiry
must relate to the crime for which criminal proceedings have commenced. McNeil v. Wisconsin, 501 U.S. 171
(1991). The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under
investigation but which are unrelated to the pending prosecution.

For purposes of determining whether the Sixth Amendment covers a given crime, Texas v. Cobb, 532 U.S. 162
(2001), clarified that:


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         (1) the Sixth Amendment does not necessarily extend to offenses that are ―factually related‖ to those for
which the accused has been formally charged;
         (2) the term ―offense‖ is ―not necessarily limited to the four corners of a charging instrument‖;
         (3) ―where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a
fact which the other does not.‖ Blockburger v. United States, 284 U.S. 299 (1932) (the test applied for double
jeopardy purposes, extended to the Sixth Amendment context by Cobb).

§ 11.05 Waiver of the Right to Counsel

          [A] When the Accused Requests Counsel
Once the Sixth Amendment right to counsel attaches, and the accused requests counsel, the government may not
initiate conversation with the accused relating to the crime at hand in the absence of counsel, even if the accused
waives the right in response to the police elicitation. However, if the accused initiates conversation with the police,
and waives his right to counsel, interrogation in the absence of counsel may proceed. Michigan v. Jackson, 475 U.S.
625 (1986) (defendant was appointed counsel whom he had not yet met when the police contacted the defendant,
read him his Miranda [384 U.S. 436] rights, obtained a waiver, and questioned him, even though the defendant had
asked for his lawyer several times; the Court held that the waiver was invalid because the police initiated the
conversation after the defendant had requested counsel).

         [B] When the Accused Does Not Request Counsel

                   [1] Before Counsel is Appointed or Hired
In the absence of a request for counsel after the right attaches, the police are permitted to seek from the
accused a waiver of his right to counsel. Patterson v. Illinois, 487 U.S. 285 (1988) (upholding the admissibility of the
post-indictment statements made after issuance of Miranda [384 U.S. 436] warnings and procurement of a waiver of
the right to counsel, where at the time of the post-indictment questioning, the defendant had not yet retained, or
accepted by appointment, a lawyer to represent him).

                    [2] After Counsel is Appointed or Hired
The Supreme Court has not directly addressed the issue of whether a waiver is valid where counsel has been
appointed but the accused has not actually requested to meet with his lawyer. However, in a footnote in Patterson
[487 U.S. 285], the Court hinted that once counsel has been appointed or hired, the police may not seek a waiver of
the right to counsel from the defendant until he has had the opportunity to meet with counsel (stating that it was ―a
matter of some significance‖ that the defendant, whose waiver of right to counsel was found valid, had not yet
retained or been appointed counsel). A footnote in Cobb [532 U.S. 162], however, calls this position into question
(stating ―there is no ‗background principle‘ of our Sixth Amendment jurisprudence establishing that there may be no
contact between a defendant and police without counsel present‖), suggesting that a waiver may be valid if the
accused does not request assistance of counsel even if counsel has been appointed.

         [C] Sufficiency of Waiver
As with waiver of the right to counsel during custodial interrogation, a waiver of the right to counsel prior to post-
indictment interrogation must be voluntary and made ―knowingly and intelligently.‖ [See Chapter 9, Custodial
Interrogation.]

§ 11.06 Scope of the Sixth Amendment Exclusionary Rule

        [A] Impeachment
The Court has addressed whether a statement secured in violation of the Sixth Amendment may be used for
impeachment purposes in only a limited context. If the police initiate conversation with an accused who has
requested counsel, in violation of the rule in Michigan v. Jackson, incriminating statements may be used for
impeachment if the accused subsequently waived the right, despite the fact that the improper police conduct
precludes admission of the statements as part of the prosecution‘s direct case. Michigan v. Harvey, 494 U.S. 344
(1990).

          [B] Fruit-of-the-Poisonous-Tree Doctrine
The fruit-of-the-poisonous-tree doctrine applies to violations of the Sixth Amendment right to counsel. See Nix v.
Williams, 467 U.S. 431 (1984). [See Chapter 7, Exclusionary Rule.]




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                                                   Chapter 12
                                            EYEWITNESS IDENTIFICATION

§ 12.01 Right to Counsel at Line-ups
An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedure
conducted after the commencement of an adversary judicial criminal proceeding against him. This rule is known as
the Wade-Kirby doctrine. United States v. Wade, 388 U.S. 218 (1967) (recognizing that a person is entitled to the
assistance of counsel at all critical stages of a criminal proceeding, and determining that the pretrial exhibition of
a suspect to a witness for identification purposes is a critical stage of the prosecution); Kirby v. Illinois, 406 U.S. 682
(1972) (the right to counsel does not apply to pre-indictment eyewitness identification).

If counsel is not present at the post-indictment lineup, and the accused has not waived counsel, results of the out-of-
court identification are inadmissible. In such cases, the prosecution is furthermore precluded from obtaining an in-
court identification of the accused by the same witness, unless it proves by clear and convincing evidence that the in-
court identification does not constitute fruit-of-the-poisonous-tree evidence. Among the factors that may be
considered are:
        the prior opportunity of the witness to observe the alleged criminal act.
        the existence of any discrepancy between any pre-lineup description and the defendant‘s actual
         appearance.
        any identification prior to lineup of another person.
        the identification by picture of the defendant prior to the lineup.
        failure to identify the defendant on a prior occasion.
        the lapse of time between the crime and the lineup identification.

Distinguished from in-person line-ups are “mug shots.” The Sixth Amendment does not apply where the police
present photographs, including a photograph of the accused, to an eyewitness for possible identification of the
perpetrator. Such a display, although it occurs after indictment, is not a critical stage of the prosecution. United
States v. Ash, 413 U.S. 300 (1973).

§ 12.02 Reliability of Identification Procedures
Evidence of a pretrial identification of the accused must be excluded from trial if, based on the totality of the
circumstances, the procedure used to obtain the identification was (1) unnecessarily suggestive; and (2)
conducive to mistaken identification. Stovall v. Denno, 388 U.S. 293 (1967). This rule applies regardless of
whether the identification was corporeal or non-corporeal, occurred before or after formal charges were initiated, and
whether or not counsel was present.

Where pretrial eyewitness identification is deemed unnecessarily suggestive and unreliable, the witness is precluded
from making an in-court identification of the accused unless the prosecution proves that the out-of-court
identification procedure did not create ―a very substantial likelihood of irreparable misidentification.‖ Simmons v.
United States, 390 U.S. 377 (1968).

          [1] Unnecessarily Suggestive
In some cases, the identification procedure may in fact be suggestive – e.g., showing a single suspect to an
eyewitness, or presenting the suspect in handcuffs – but under the circumstances, the identification procedure is
deemed necessary. In Stovall, the Court found ―suggestive‖ the police action of bringing to the hospital a single
African-American suspect, who was handcuffed to an officer, for identification by a stabbing victim. Nevertheless, the
Court concluded that the procedure was necessarily suggestive, as the police were unsure if the victim would
survive long enough to view a later line-up.

         [B] Conducive to Mistaken Identification
Even if an identification procedure is unnecessarily suggestive, the identification procedure must also have been
unreliable in order to exclude the evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The relevant factors in
determining reliability include:
        the opportunity of the witness to view the perpetrator at the time of the crime.
        the witness‘ degree of attention.
        the accuracy of the witness‘ prior description of the perpetrator.
        the level of certainty demonstrated by the witness at the confrontation.
        the length of time between the crime and the confrontation.




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                                                     Chapter 13
                                                    ENTRAPMENT

§ 13.01 Nature of Entrapment
Entrapment is not a constitutional doctrine. It is a criminal law defense to police overreaching, recognized in all
states and the federal courts. In general, entrapment occurs when the defendant:
         (1) was induced to commit the crime by a government agent (typically an undercover police officer); and
         (2) would not have otherwise committed such crime.

Proof of entrapment varies according to whether the jurisdiction in which a case is pending applies the ―subjective‖
test (majority approach) or the ―objective‖ test (minority approach advocated by the Model Penal Code).

§ 13.02 Subjective Test
The subjective test focuses on the defendant‟s predisposition, if any, to commit the crime solicited by the
government agent. Sorrells v. United States, 287 U.S. 435 (1932). A defendant need not be completely law-abiding
in order to assert a defense of entrapment; a history of or predisposition to engage in unlawful activity unrelated to the
crime at issue does not preclude the defense.

Entrapment requires more than that the government agent provided an opportunity to the defendant to commit the
crime, and generally involves repeated and persistent solicitation. See, e.g., Jacobson v. United States, 503 U.S.
540 (1992) (defendant who had purchased magazines that contained nude photographs of under-age males not
depicting any sexual activity prior to the enactment of a federal law prohibiting the receipt of such materials, and who
subsequently succumbed to more than two years of government solicitation to purchase child pornography, was not
deemed to be predisposed to commit such crime).

Predisposition may be proved by demonstrating the defendant‟s ready complaisance to commit the crime, with
evidence of, for example:
       the defendant‘s non-hesitancy to commit the crime.
       the defendant‘s ready knowledge of how to commit the crime.
       the defendant‘s comments prior to the commission of the crime that demonstrate his propensity to commit
        the crime.

Predisposition may also be proved by reference to the defendant‟s character in the community prior to the time
the government approached him, e.g., evidence (which is otherwise generally inadmissible) of the defendant‘s bad
reputation in the community and/or his prior criminal record, including arrests and convictions for related offenses.

In jurisdictions applying the subjective test, the issue of whether the defendant was entrapped is deemed a question
of fact and is generally submitted to the jury.

§ 13.03 Objective Test
The objective standard focuses on police conduct rather than the predisposition of the defendant. Under the
objective test, the court considers the likely impact of the police solicitation on a hypothetical innocent person, not
the actual defendant. The ―hypothetical person‖ standard may take into account some of the characteristics of the
actual defendant.

Model Penal Code § 2.13(2) provides that the entrapment defense should be submitted to a judge rather than to the
jury.




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               RIGHT TO COUNSEL: PRETRIAL, TRIAL AND POST-CONVICTION PROCEEDINGS

§ 14.01 Pretrial Proceedings
Under the Sixth Amendment, a defendant‘s right to counsel attaches upon the commencement of an adversarial
criminal proceeding and may be invoked at any ―critical stage.‖ Thus, prior to trial, a defendant is entitled to the
assistance of counsel at:
         (1) post-indictment line-ups [See Chapter 12, Eyewitness Identification.]
         (2) post-indictment interrogation [See Chapter 11, Sixth Amendment Right to Counsel: Interrogation.]
         (3) psychiatric examinations of the defendant to determine competency [See Chapter 18, Pretrial and Trial
Issues.]
         (4) arraignments [See Chapter 15, Charging the Defendant.]
         (5) preliminary hearings [See Chapter 15, Charging the Defendant.]
         (6) bail and detention hearings [See Chapter 16, Pretrial Release or Detention.]
         (7) plea hearings [See Chapter 17, Plea Bargaining and Guilty Pleas.]

If a defendant is denied his right to counsel at a pretrial proceeding, any trial conviction is not necessarily subject
to reversal if the prosecution demonstrates beyond a reasonable doubt that the Sixth Amendment violation
constitutes harmless error, i.e., if the same verdict would have been rendered regardless of such constitutional
violation. Chapman v. California, 386 U.S 18 (1967).

§ 14.02 Trial Proceedings

         [A] Appointment of Counsel to Indigents
The state must appoint counsel to an indigent who is charged with a felony. Gideon v. Wainwright, 372 U.S. 335
(1963). While this requirement does not extend to misdemeanor cases under the Sixth Amendment, ―no person
may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was
represented by counsel at his trial,‖ absent a knowing and intelligent waiver of the right to counsel. Argersinger v.
Hamlin, 407 U.S. 25 (1972). Thus, a defendant charged with a misdemeanor which carries an optional jail sentence
is not guaranteed assistance of counsel at state expense; however, if counsel is not provided, the judge is precluded
from sentencing any term of imprisonment upon a finding of guilt. Nor may the court impose a suspended prison
sentence under such circumstances. Alabama v. Shelton, 535 U.S. 654 (2002).

Denial of the Sixth Amendment right to counsel at trial results in automatic reversal of any conviction. Gideon v.
Wainwright [372 U.S. 335].

         [B] Right of Self-Representation

                    [1] Waiver of Counsel
Implicit in the Sixth Amendment is the right of a defendant to voluntarily and knowingly waive his right to the
assistance of counsel and to represent himself at trial, provided the court deems him mentally competent to do so.
Faretta v. California, 422 U.S. 806 (1975). The court must inform the defendant seeking to waive counsel ―of the
dangers and disadvantages of self-representation, so that the record will establish that ‗he knows what he is doing
and his choice is made with eyes open.‘ ‖

                    [2] Standby Counsel
The right to self-representation is not violated by the appointment of standby counsel, even if the defendant
objects. The role of standby counsel is to assist the defendant if and when he seeks help and to assume control of
the defense if the defendant can no longer represent himself.

Mere occasional unsolicited assistance by the standby counsel does not violate the Sixth Amendment as long as the
defendant retains control over his defense. The right of self-representation is not violated unless standby counsel:
         substantially interferes with the defendant‘s significant tactical decisions.
         assumes control of the examination of witnesses.
         speaks for the defendant on material issues against his wishes.
         otherwise destroys the jury‟s perception that the defendant is representing himself.
McKaskle v. Wiggins, 465 U.S. 168 (1984) (upholding a conviction in which standby counsel provided unsolicited,
and at times even unwanted, assistance).

                [3] Inadequate Self-Representation
A defendant who chooses self-representation cannot thereafter assert a claim of ineffective assistance of counsel.

                   [4] Wrongful Denial of the Right of Self-Representation


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If a court wrongfully denies a defendant the right to represent himself at trial, or if the right is violated by standby
counsel, any subsequent conviction must be reversed.

         [C] Ineffective Assistance of Counsel

                     [1] Requirement for Effective Representation
Implicit in the right to counsel is that such counsel, whether retained or court-appointed, must render effective
representation. According to standards issued by the American Bar Association, ―effective representation‖ requires
defense counsel to:
           (1) exercise professional judgment, within the bounds of the law, solely for the benefit of the defendant and
free of any conflicts of interest.
           (2) interview the defendant early in their relationship.
           (3) keep the defendant informed of important developments in the case.
           (4) consult with the defendant on important decisions.
           (5) promptly and comprehensively investigate the circumstances of the case.
           (6) apply legal skill and knowledge to render the trial a reliable adversarial process.

                  [2] Strickland Test for Ineffective Representation
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test for determining
when legal representation in a criminal trial is ineffective. The test requires a showing that:
          (1) the representation was deficient; and
          (2) such deficiency prejudiced the defendant.

                            [a] Deficiency of Representation
While Strickland did not establish explicit guidelines for effective representation, the Court stated that representation
is deficient when the ―errors [were] so serious that counsel was not functioning as the „counsel‟ guaranteed . . . by
the Sixth Amendment.‖

Cases alleging ineffective representation generally fall into one of three categories:
        (1) failure to perform ordinary tasks;
        (2) falling asleep in court; or
        (3) ignorance of the relevant law.

                                      [i] Failure to Perform Ordinary Tasks
Examples of omissions that, under given circumstances, may qualify as deficient representation, include:
      failure to develop a meaningful defense strategy.
      failure to interview witnesses.
      failure to request discovery.
      failure to visit the crime scene.
      absence from the courtroom during critical portions of the trial.
      failure to make appropriate evidentiary objections.
      failure to timely file a notice of appeal.

However, less-than-optimal performance does not necessarily render representation inadequate, as long as the
nature and conduct of the representation is based on reasonable professional judgment. See, e.g., Burger v.
Kemp, 483 U.S. 776 (1987) (finding that defense counsel‘s decision to not fully investigate the defendant‘s
background and not offer mitigating evidence at two capital sentencing hearings was supported by reasonable
professional judgment, in that his interviews and studies of reports indicated that an explanation of the defendant‘s
background would not have minimized the risk of the death penalty).

                                       [ii] Sleeping in Court
It is widely accepted that proof that defense counsel frequently slept during trial or significant pretrial hearings
constitutes deficient representation.

                                      [iii] Ignorance of Relevant Law
Deficiency may be proved where defense counsel‘s ignorance or misunderstanding of relevant law affects trial
strategy to the detriment of the defendant. E.g., Kimmmelman v. Morrison, 477 U.S. 365 (1986) (defense
counsel‘s failure to request discovery and consequently move to suppress evidence obtained in violation of the
Fourth Amendment, based on his erroneous belief that the prosecution was required on his own initiative to turn over
all incriminating evidence in its possession, was held to constitute deficient representation); Lockhart v. Fretwell, 506
U.S. 364 (1993) (defense counsel failed to object to the introduction of certain evidence at the sentencing phase of
the trial when it had already been introduced during the guilt phase of the trial, apparently because he was unaware
of the relevant law which would have precluded such duplicate evidence).


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                             [b] Prejudice
Once a defendant demonstrates that representation was deficient, the second prong of the Strickland test requires
proof that such deficiency was prejudicial to the defendant‘s case. To prove prejudice, the defendant must show that
there is a reasonable probability that, but for counsel‘s errors, the outcome of the trial would have been
different, e.g., that the defendant would not have been convicted or would have received a lesser sentence.
―Reasonable probability‖ suggests more than that the error had ―some effect‖ on the outcome, but not that it is ―more
likely than not‖ that counsel‘s deficient representation affected the outcome.

Prejudice is presumed in cases involving:
(1) actual or constructive denial of the assistance of counsel such as when the lawyer repeatedly fell asleep during
     trial;
(2) certain forms of state interference with counsel‘s assistance; and
(3) attorney conflict of interest.

§ 14.03 Post-Conviction Proceedings
The Sixth Amendment right to counsel applies to sentencing hearings. Mempa v. Rhay, 389 U.S. 128 (1967).

The Sixth Amendment does not itself extend to criminal appeals. (In fact, the federal Constitution does not even
provide a right to appeal convictions, although every state provides at least one appeal of right in criminal cases, and
grants courts discretion regarding subsequent appeals.)

However, as appellate procedures are subject to the standards of the Fourteenth Amendment equal protection
and due process clauses, an indigent defendant seeking to appeal his conviction must be provided counsel for the
first statutory appeal of right. Douglas v. California, 372 U.S. 353 (1963).

The Fourteenth Amendment has been held to not require the appointment of counsel to assist indigent appellants
for:
       discretionary state appeals.
       applications for review in the United States Supreme Court.
       state habeas corpus proceedings.
       post-sentencing probation hearings.
      post-sentencing parole revocation hearings.
Ross v. Moffitt, 417 U.S. 600 (1974); Pennsylvania v. Finley, 481 U.S. 551 (1987); Gagnon v. Scarpelli, 411 U.S. 778
(1973).




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CHAPTER 15
                                            CHARGING THE DEFENDANT

§ 15.01 Complaint
After a suspect is arrested and booked, a complaint is prepared by the police or a prosecutor and is filed with the
court. A complaint is ―a written statement of the essential facts constituting the offense charged.‖ Fed. R. Crim. P. 3.
The complaint serves as the official charging document prior to the issuance of an information or indictment.

§ 15.02 Probable Cause (Gerstein) Hearing
When the police arrest a suspect without an arrest warrant, a prompt judicial determination of probable cause
must ordinarily be made in order to continue to detain the defendant where a “significant pretrial restraint on
liberty” is involved. Gerstein v. Pugh, 420 U.S. 103 (1975). A Gerstein hearing that is held more than 48 hours after
the defendant‘s arrest is presumptively unreasonable. Riverside County v. McLaughlin, 500 U.S. 44 (1991). In
indictment jurisdictions, if a grand jury previously returned an indictment, a Gerstein hearing is unnecessary.

A Gerstein [420 U.S. 103] hearing is equivalent to a pre-arrest warrant hearing, at which probable cause must be
demonstrated in order to be granted a warrant. It is nonadversarial in nature. The hearing may be conducted in the
defendant‘s absence, and the probable cause determination may be based on hearsay testimony.

§ 15.03 Initial Court Appearance
A defendant must be brought before a judicial officer for a hearing ―without unnecessary delay,‖ Fed. R. Crim. P. 5(a),
usually within 24 hours of the arrest, except on weekends. Such hearing is variously called the ―initial
arraignment,‖ ―arraignment on a warrant,‖ ―arraignment on a complaint,‖ or the ―initial appearance.‖

At the initial appearance:
          (1) the defendant receives formal notice of the charges against him.
          (2) relevant constitutional rights are explained to the defendant.
          (3) a date is set for a preliminary hearing.
          (4) counsel is appointed if the defendant is indigent.
          (5) a Gerstein [420 U.S. 103] probable cause determination may be made at such time if the defendant was
arrested without a warrant.
          (6) the magistrate determines whether the defendant should be set free on his own recognizance, released
on bail, or detained pending further proceedings. [See Chapter 16, Pretrial Release or Detention.]

§ 15.04 Preliminary (Bindover) Hearing
In most jurisdictions, a preliminary hearing is held within two weeks after the initial appearance before the magistrate,
unless the defendant waives the hearing. Fed. R. Crim. P. 5(c). The primary purpose of a preliminary hearing is to
determine whether there is probable cause to believe that the defendant committed a specified criminal
offense. Fed. R. Crim. P. 5.1(a). Like the Gerstein [420 U.S. 103] hearing, a preliminary hearing is not required if a
grand jury previously returned an indictment.

Unlike a Gerstein [420 U.S. 103] hearing, the preliminary hearing is adversarial in nature. Defense counsel may
be present, and the prosecutor and the defendant may call witnesses on their behalf and cross-examine adverse
witnesses. Many jurisdictions permit the introduction of hearsay and evidence obtained in an unconstitutional manner
at the preliminary hearing. Fed. R. Crim. P. 5.1(a).

         [A] Information Jurisdictions
If the magistrate in an information jurisdiction – i.e., a state in which an indictment by a grand jury is not
required – determines that there is sufficient evidence to bind over the defendant for trial, the prosecutor files an
information. An information states the charges against the defendant and the essential facts relating to the charges
and replaces the complaint as the formal charging document.

If the magistrate in an information jurisdiction does not find sufficient evidence to bind over the defendant, the
complaint is dismissed and the defendant is discharged. If the prosecutor wishes to proceed with the dismissed
case:
         (1) he may file a new complaint, in which case the prosecution begins anew;
         (2) in some states, he may appeal the magistrate‘s dismissal to the trial court; and/or
         (3) in some circumstances, he may seek an indictment from a grand jury.

In an indictment jurisdiction – states in which the defendant ordinarily cannot be brought to trial unless indicted
by a grand jury – the preliminary hearing functions as little more than an adversarial Gerstein-type hearing. Indeed,
the magistrate‟s probable cause determination may be superseded by the grand jury; if the grand jury does not


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indict the defendant, he must be released, despite a finding by the magistrate that probable cause exists to believe
that the defendant committed the offense.

§ 15.05 Grand Jury Proceeding
In indictment jurisdictions, a defendant may not be tried for a serious offense unless he is indicted by a grand jury or
waives the right to a grand jury hearing. A grand jury proceeding differs from a preliminary proceeding in that:
   (1) the defendant is not permitted to be present during the grand jury proceedings, except if and when he is
     called as a witness.
   (2) the defendant (as well as all other witnesses) may not have counsel present while he testifies before the
     grand jury.
   (3) no judge is present during the proceedings, and thus, rules of evidence – e.g., those excluding hearsay and
     evidence obtained in violation of the Constitution – do not apply.
   (4) the prosecutor is not required to disclose exculpatory evidence to the grand jurors.

If a majority of grand jurors believe that the prosecutor presented sufficient evidence on which a trial may proceed,
the grand jury issues an indictment, a document that states the charges and the relevant facts relating to them. If the
jury does not indict the defendant (a ―no-bill‖), the complaint is dismissed and the defendant is discharged.

§ 15.06 Arraignment
Upon the filing of an indictment or information, the defendant is arraigned. Defense counsel may be present at the
arraignment. At the arraignment, the defendant is provided with a copy of the indictment or information, after which
he enters one of the following pleas to the offenses charged:
        ―not guilty‖
        ―guilty‖
        ―nolo contendere‖
        ―not guilty by reason of insanity‖ (available in some states)




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Chapter 17
                                    PLEA BARGAINING AND GUILTY PLEAS
§ 17.01 Plea Bargaining
          [A] Types of Plea Agreements
                   [1] Charge Bargaining
There are two types of ―charge‖ bargaining:
          (1) dismissal agreement – a defendant who is charged with multiple offenses pleads guilty to one or more
charges, in exchange for which the prosecutor agrees to drop the other charges.
          (2) charge-reduction agreement – the defendant and prosecutor agree on a guilty plea to a lesser degree
of the original charge.
                   [2] Sentence Bargaining
Sentencing bargaining also takes one of two forms:
          (1) sentencing recommendation agreement – in exchange for a guilty plea to a given charge, the
prosecutor agrees to recommend to the judge a sentence agreed upon by the defendant, or alternatively, to not
oppose the defendant‘s request for a particular sentence;
          (2) sentencing agreement – the prosecutor agrees to a specified sentence in exchange for the guilty plea.

         [E] Hard Bargaining by Prosecution
A prosecutor does not engage in ―prosecutorial vindictiveness‖ simply by driving a hard bargain in the plea
negotiation process, such as threatening to charge the defendant with a more serious charge if he does not plead
guilty. Bordenkircher v. Hayes, 434 U.S. 357 (1978).

        [F] Withdrawal of Plea by Defendant
Once a guilty plea is entered by the court but before sentencing, a defendant may not withdraw the plea unless he
demonstrates a ―fair and just reason‖ for doing so, such as that the plea was coerced. United States v. Hyde, 520
U.S. 670 (1997).

         [G] Evidence of Guilty Plea and Statements Made During Negotiations
In federal criminal trials, Federal Rule of Criminal Procedure 11(e)(6) excludes from any civil or criminal proceeding:
        evidence that the defendant entered a plea of guilty that was later withdrawn.
        statements made by the defendant to the prosecutor during plea negotiations.
        statements made by the defendant to the judge during plea proceedings.

However, the defendant can knowingly and voluntarily waive the exclusionary provisions. United States v.
Mezzanatto, 513 U.S. 196 (1995).

§ 17.02 Guilty Pleas
          [A] Assistance of Counsel
A defendant who intends to plead guilty must be represented by counsel or must validly waive the right to counsel
at the pleading stage.

        [B] Competency to Plead Guilty
A defendant must be mentally competent in order to validly plead guilty or waive his right to counsel.

          [C] Voluntary and Knowing Plea
A guilty plea is valid only if it is made voluntarily and knowingly.

                     [1] Voluntary Waiver of Rights
A federal trial court may not accept a guilty plea until it determines that the plea is voluntary, i.e., it must not be the
―result of force or threats or of promises apart from a plea agreement.‖ Fed. R. Crim. P. 11(d). Rule 11 requires the
judge to determine the voluntariness of the plea ―by addressing the defendant personally in open court.‖
Nevertheless, under Rule 11, any ―variance from the procedures . . . which does not affect substantial rights‖
constitutes harmless error. Fed. R. Crim. P. 11(h). This rule supersedes the holding in McCarthy v. United States,
394 U.S. 459 (1969), which held that a guilty plea must be set aside if the district court failed to address the
defendant in open court in order to determine the voluntariness of the plea.

                    [2] Knowing Waiver of Rights
A guilty plea is invalid if the defendant is unaware of:
          (1) the nature of the charges to which he is pleading;
          (2) the penal consequences of the plea; and
          (3) the nature of the rights he is waiving by pleading guilty.

However, a plea is not invalid merely because the defendant or his counsel incorrectly assessed the legal or factual
circumstances surrounding the case. Fed. R. Crim. P. 11(c).

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                                [a] Nature of the Charges

The defendant must be informed of and understand the “critical elements” (e.g., mental state) – but not
necessarily all elements – of the crime to which he is pleading guilty. Henderson v. Morgan, 426 U.S. 637 (1976)
(defendant, who possessed substantially below-average intelligence, pleaded guilty to intent-to-kill murder, even
though he told the court that he ―meant no harm‖ to the victim; the plea was held invalid because the trial judge
determined that neither the defense attorney nor the prosecutor explained to the defendant that intent was a critical
element of the crime).

                           [b] Penal Consequences of the Plea
Federal Rule of Criminal Procedure 11(c) requires the judge to inform the defendant of any mandatory minimum
sentence provided by law, and the maximum penalty for the offense, including any pertinent parole provisions. The
judge must also inform the defendant that he is ―required to consider any applicable sentencing guidelines but may
depart from those guidelines under some circumstances.‖

Nevertheless, the prevailing view is that the failure of a court to inform a defendant of the direct penal consequences
of the plea, even if such failure violates a statute or procedural rule, does not by itself constitute a due process
violation.

                               [c] Nature of the Rights Being Waived
The judge must inform the defendant that by pleading guilty, he waives the privilege against self-incrimination, the
right to trial by jury, and the right to confront one‘s accusers. Boykin v. Alabama, 395 U.S. 238 (1969); Fed. R. Crim.
P. 11(c).

Regarding the waiver of the privilege against self-incrimination, if the court intends to question the defendant under
oath during the plea proceeding, it must inform the defendant that his answers can later be used against him in a
prosecution for perjury. In contrast, however, the defendant‘s truthful statements to the judge during the plea
proceeding may not be used against him at any subsequent sentencing hearing in that case. Mitchell v. United
States, 526 U.S. 314 (1999).

                            [d] Incorrect Legal Advice
An otherwise valid plea is not vulnerable to collateral attack simply because it was based on incorrect legal advice,
if the advice was based on ―then existing law as to possible penalties.‖ United States v. Jackson, 390 U.S. 570
(1968).

However, if the defendant entered into a plea agreement based on advice of counsel whose representation was
ineffective, the plea may be challenged. In order to vacate a guilty plea on the ground of ineffective representation,
the defendant must prove that the representation was constitutionally deficient and that such deficiency was
prejudicial. [See Chapter 14, Right to Counsel: Pretrial, Trial and Post-Conviction Proceedings.]

          [D] Factual Basis of the Plea
In general, a judge is not constitutionally required to determine whether there is a factual basis for a defendant‘s
guilty plea. However, when a defendant affirmatively asserts his innocence during the plea proceeding, the trial
judge must determine whether there is a factual basis for the plea. North Carolina v. Alford, 400 U.S. 25 (1970). If
the record ―contains strong evidence of actual guilt,‖ a judge may accept a guilty plea from a defendant despite his
assertion of innocence at the plea proceeding.

Although not constitutionally mandated, Federal Rule of Criminal Procedure 11(f) requires federal criminal courts to
determine whether a factual basis for the plea exists. The rule does not require the trial judge to believe that the
defendant is in fact guilty as long as a factual basis for the plea exists.

         [E] Forfeiture of Prior Constitutional Claims
A defendant who pleads guilty to a criminal charge in state court ordinarily is barred from raising a claim in federal
court based on a constitutional violation that occurred prior to the guilty plea, even if such claim might have barred
a conviction if the defendant had proceeded to trial on the criminal charge.

Nevertheless, a defendant who pleads guilty does not forfeit the following constitutional claims:
       a procedural defect in the guilty plea procedure itself.
       the plea was not voluntarily or intelligently made.
       ineffective assistance of counsel.
       prosecutorial vindictiveness in the charging process.
       double jeopardy.


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§ 17.03 Conditional Pleas (Nolo Contendre)
The alternative plea of nolo contendre, available in federal court and some states, allows a defendant to conditionally
plead guilty in order to reserve the right, ―on appeal from the judgment, to review of the adverse determination of any
specified pretrial motion.‖ Fed. R. Crim. P. 11(a)(2). If the defendant prevails on appeal, he may withdraw the plea. If
he does not prevail, the plea stands.

All of the provisions of Federal Rule of Criminal Procedure 11 pertaining to guilty pleas apply to pleas of nolo
contendere as well, except for the ―factual basis‖ requirement under Rule 11(f).




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                                                    Chapter 18
                                            PRETRIAL AND TRIAL ISSUES

This chapter covers the following issues:
       Discovery
       Competency to Stand Trial
       Right to a Speedy Trial
       Jury Trial

§ 18.01 Discovery
         [A] Exculpatory Evidence
In preparation for trial, the prosecution has a duty to:
        disclose exculpatory evidence in its possession to the defendant, Brady v. Maryland, 373 U.S. 83 (1963).
        disclose any deals made by the prosecution with a witness, Giglio v. United States, 405 U.S.150
         (1972).
        ascertain any exculpatory evidence known to other government agents and to assess the cumulative
         effect of all exculpatory evidence in deciding whether to disclose the evidence to the defendant, Kyles v.
         Whitley, 514 U.S 419 (1995).

Failure to disclose exculpatory evidence violates the due process clause. Where the prosecution fails to disclose
exculpatory evidence, a conviction must be overturned if ―there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.‖ United States v. Bagley,
473 U.S. 667 (1985).

Absent bad faith on the part of the police, failure to preserve potentially exculpatory evidence does not constitute a
due process violation. Arizona v. Youngblood, 488 U.S. 51 (1988) (failure to test semen taken from a sexual assault
victim and to refrigerate his clothing in order to preserve semen on it did not require reversal of conviction because no
police bad faith was shown).

         [B] Government Duty to Disclose Information Upon Defense Request
Upon a defendant's request, Federal Rule of Criminal Procedure 16 requires the government to disclose the following
evidence within its possession, custody or control, and known to exist through due diligence:
    (1) the substance of any oral statement made by the defendant, before or after arrest, in response to
      interrogation by a person the defendant knew was a government agent;
    (2) any relevant written or recorded statement by defendant;
    (3) defendant's prior criminal record;
    (4) any material documents and objects that the government intends to in its case-in-chief, or was obtained
      from or belongs to the defendant;
    (5) reports resulting from any physical or mental examinations and tests;
    (6) written summary of any expert testimony that the government intends to use in its case-in-chief.

Under federal procedure, if the defendant requests the government to produce documents and tangible evidence,
reports of examinations and tests, or information about expert witnesses, the defense must make a reciprocal
disclosure. Fed. R. Crim. P. 16(b)(1).

          [C] Defendant’s Obligation to Disclose Information
The prosecution may be entitled by statute or procedural rule to obtain information from the defendant prior to trial,
e.g., the names of alibi witnesses. See, e.g., Fed. R. Crim. P. 12.1. In such cases, the defense must be entitled to
reciprocal discovery from the prosecution pertaining to relevant rebuttal evidence. Wardius v. Oregon, 412 U.S. 470
(1973).

§ 18.02 Competency to Stand Trial
          [A] Incompetency Defined
Prosecution of a defendant who lacks competency to stand trial violates the due process clause. Medina v.
California, 505 U.S. 437 (1992). Competency to stand trial is constitutionally required because a defendant must be
able to assist his attorney in a meaningful defense, e.g., to discuss strategy, explain his version of the facts, and
provide the names of potential witnesses, as well as to confront accusers at trial.

A person is incompetent if, during the criminal proceedings, he lacks:
         (1) capacity to consult with counsel ―with a reasonable degree of rational understanding‖; or
         (2) ―a rational as well as factual understanding of the proceedings‖ against him.
Dusky v. United States, 362 U.S. 402 (1960). Incompetency may be the result of a physical handicap, e.g., inability
to speak, or a temporary or permanent mental disability, e.g., mental retardation, amnesia, mental illness.


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        [B] Procedures for Determining Competency
The issue of competency to stand trial may be raised by the prosecutor, the defense, or the trial judge. The
defendant‘s competency must be investigated, even over the defendant‘s objection, if the trial judge believes that the
defendant may be incompetent. Pate v. Robinson, 383 U.S. 375 (1966).

When the defendant‘s competency is raised, the defendant must submit to a psychiatric examination, and if the
results are in dispute, a hearing must be held at which the parties may present evidence on the matter of
competency. 18 U.S.C. § 4241. Upon a ruling of incompetency, the defendant is committed to an appropriate facility
for a reasonable period of time (up to four months under federal law) in order to determine whether there is a
substantial probability that he will attain capacity to stand trial in the foreseeable future. Jackson v. Indiana, 406 U.S.
715 (1972). The defendant may be held for an additional reasonable period until the defendant attains competency, if
it is determined that he is likely to so improve. 18 U.S.C. § 4241(d)(2). If it is not so determined, the defendant is to be
committed according to civil commitment procedures.

§ 18.03 Right to a Speedy Trial

The Sixth Amendment guarantees an accused the right to a speedy trial. The right attaches only after one has been
formally accused of the offense, i.e., upon indictment, information, or custodial arrest.

A charge must be dismissed if a court finds that the defendant‘s right to speedy trial has been violated, Strunk v.
United States, 412 U.S. 434 (1973), and such dismissal bars all future prosecutions of the offense. As set out in
Barker v. Wingo, 407 U.S. 514 (1972), the factors relevant to whether the right to a speedy trial has been violated
include:
  (1) Length of delay – Delay must be of sufficient length to potentially prejudice the accused; some statutes set
     specific time limits for initiation of trial, see, e.g., Federal Speedy Trial Act, 18 U.S.C. § 3161.
  (2) Reason for delay – Evidence that the prosecutor deliberately attempted to delay trial is weighed heavily in the
     analysis, unless there is a justifiable reason for the delay, such as a missing witness or illness of a party. If the
     delay is willfully caused by the defendant, he is deemed to have waived the right to a speedy trial.
  (3) Defendant‟s assertion or non-assertion of right – The defendant need not assert the right prior to trial but
     failure to do so may receive considerable weight in the court‘s analysis of the speedy trial question.
  (4) Prejudice to defendant – e.g., loss of evidence, fading memory of witnesses, prolonged incarceration, etc.

§ 18.04 Jury Trials
          [A] Right to Trial by Jury
The right to a jury trial applies only to “non-petty” offenses, generally deemed to be offenses punishable by
imprisonment for more than six months. Baldwin v. New York, 399 U.S. 66 (1970). 6 months or Less Jail Time for
Maximum Sentence and Severe Fines which clearly reflect a legislative determination that the offense in question is a
‗serious‘ one.‖ Blanton v. City of North Las Vegas, 489 U.S. 538, 543 (1989).

          [B] Required Number of Jurors
A jury composed of as few as six persons is constitutional. Williams v. Florida, 399 U.S. 78 (1970). Twelve jurors are
required in federal criminal trials, although fewer may be permissible upon stipulation by the parties or when the court
finds it necessary to excuse a juror for cause after the trial begins. Fed. R. Crim. P. 23(a). Many states likewise
require a twelve-person jury in criminal trials.

          [C] Number of Jurors Needed to Acquit or Convict
State laws permitting non-unanimous verdicts are permissible, as long as the vote to convict represents a ―substantial
majority‖ of the jurors, Johnson v. Louisiana, 406 U.S. 356 (1972), but in federal criminal trials, a verdict to convict or
acquit must be unanimous. Fed. R. Crim. P. 31(a).




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                                                   HABEAS CORPUS

§ 19.01 Nature of Habeas Corpus
A habeas corpus proceeding is not a direct appeal but rather a collateral attack of a conviction by which the
defendant challenges the lawfulness of his detention. Habeas corpus is a civil remedy that mandates the release
from custody of an individual being held in violation of constitutional or federal law. Preiser v. Rodriguez, 411
U.S. 475 (1973).

§ 19.02 Standing to Petition for Habeas Corpus
Standing to bring a habeas corpus petition requires that at the time of such petition the defendant is in “custody,”
which has been broadly construed to include probation, parole, release on bail, as well as the continued collateral
consequences of a criminal sentence, e.g., loss of rights to vote and to hold public office. Lane v. Williams, 455 U.S.
624 (1982).

§ 19.03 Petitions in Federal Court

        [A] State Prisoners
Where state law provides for habeas corpus relief, state prisoners may petition for federal relief only upon
exhausting all available state remedies. The federal petition will be dismissed if the petitioner did not previously
exhaust all state remedies. Rose v. Lundy, 455 U.S. 509 (1982).

A state prisoner will be denied federal relief if he fails to comply with state procedural rules governing the
assertion of federal constitutional claims, Wainwright v. Sykes, 433 U.S. 72 (1977), unless he can show cause for
noncompliance and demonstrate that he suffered actual prejudice. Francis v. Henderson, 425 U.S. 536 1976). Such
cause can be shown if either the factual or legal basis for a claim was not reasonably available to the defense at the
time the claim should have been raised. Amadeo v. Zant, 486 U.S. 214 (1988).

A state prisoner cannot relitigate Fourth Amendment claims at a federal habeas corpus proceeding, Stone v.
Powell, 428 U.S. 465 (1976), but can relitigate:
        claims regarding sufficiency of evidence used to convict.
        claims of racial discrimination in the grand jury proceeding.
        Sixth Amendment claims of ineffective assistance of counsel.
        Miranda [384 U.S. 436] violations.

         [B] Federal Prisoners

Federal prisoners seeking a writ of habeas corpus based on trial errors or grand jury racial discrimination must show
cause for failing to object to the errors and demonstrate actual prejudice from such errors. United States v. Frady,
456 U.S. 152 (1982). If the petition is based on a claim of innocence, the federal prisoner generally must show that,
but for the error, it is more likely than not that the jury would have found him not guilty. Schlup v. Delo, 513 U.S. 298
(1995).




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                                ADMINISTRATIVE AND NON-INVESTIGATORY SEARCHES

§ 5.01   Building Inspections

         [A] Warrant Requirement
Except in the case of emergency or consent, a warrant is required to enter a residential or commercial building for the
purpose of conducting administrative health and safety inspections therein. However, such warrant is not based on
probable cause to believe there is criminal activity underfoot. Camara v. Municipal Court, 387 U.S. 523 (1967), and
See v. City of Seattle, 387 U.S. 541 (1967).

         [B] Administrative Probable Cause Standard
In Camara, the Supreme Court developed a special probable cause standard to apply in administrative search cases.
In such cases, probable cause exists to issue a warrant to inspect premises for administrative code violations as long
as there are ―reasonable legislative or administrative standards‖ for conducting the inspection. Administrative
probable cause does not require individualized suspicion of wrongdoing and may be founded on the basis of general
factors such as:
        the passage of time since the last inspection.
        the nature of the building in question.
        the condition of the entire area to be searched.

          [C] Exception to Warrant Requirement
In limited circumstances, warrantless, non-exigent, nonconsensual administrative inspections of commercial
premises are constitutional. A ―closely regulated‖ business may be inspected without a warrant if three conditions
are met:
   (1) the administrative regulatory scheme must advance a “substantial interest,” such as to protect the health
      and safety of workers;
   (2) warrantless inspections must be necessary to further the regulatory scheme, i.e., if there is a significant
      possibility that the subject of the search could conceal violations without the surprise element that the
      warrantless search would allow;
   (3) the ordinance or statute that permits warrantless inspections must, by its terms, provide an adequate
      substitute for the warrant, such as rules that limit the discretion of the inspectors, regarding the time, place,
      and scope of the search. New York v. Burger, 482 U.S. 691 (1987).

§ 5.02    Border Patrol Searches
          [A] At the Border
Routine border searches, without a warrant and in the absence of individualized suspicion of criminal conduct, are
deemed to be reasonable. United States v. Ramsey, 431 U.S. 606 (1977). Travelers may be detained at an
international border or its ―functional equivalent‖ (e.g., an airport where an international flight arrives) for a brief
search of their person and belongings. Furthermore, a person lawfully stopped at a border may be detained beyond
the scope of a routine customs search if agents have reasonable suspicion of criminal activity.

         [B] Near the Border
The reasonableness of searches and seizures conducted near but not at the actual border depends in part on
whether they take place at a fixed checkpoint or as the result of a ―roving‖ border patrol.

                   [1] Roving Border Patrols
Traditional Fourth Amendment standards apply to searches and seizures conducted by roving border patrol agents.
Roving border patrol agents may not detain a person in a vehicle even briefly for questioning in the absence of
reasonable suspicion of illegal presence in the country or other illegal activity. Factors that may justify a brief seizure
to determine whether the occupants of a vehicle are illegal aliens include:
        information about recent illegal border crossings in the area;
        furtive behavior by the occupants of the vehicle; and
        evidence that the car has an ―extraordinary number‖ of passengers.

Reasonable suspicion may not be based, however, exclusively on the fact that occupants of the vehicle appear to be
of foreign ancestry. United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (roving border patrol agents improperly
stopped a vehicle to question the occupants solely on the ground that they appeared to be of Mexican ancestry).

                   [2] Fixed Interior Checkpoints

Vehicles may be stopped and their occupants briefly detained for questioning at fixed checkpoints, without
individualized suspicion of wrongdoing. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court
distinguished fixed checkpoints from roving border patrols on two grounds:
          (1) the lesser intrusion resulting from a fixed checkpoint than random stops on the highway; and

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         (2) the lesser discretion afforded officers maintaining the fixed checkpoints than the roving patrols.

§ 5.03 Sobriety Checkpoints
A highway sobriety checkpoint at which drivers were briefly detained (an average of 25 seconds) to search for signs
of intoxication was upheld despite the lack of individualized suspicion of driving under the influence. Michigan
Department of State Police v. Sitz, 496 U.S. 444 (1990). The interest in eradicating drunk driving was found to
outweigh the ―slight‖ intrusion on drivers.

§ 5.04 Drug Interdiction Checkpoints
A highway checkpoint established for the purpose of detecting possession and/or use of illegal drugs has bee held to
violate the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). As opposed to border and
sobriety checkpoints, which are ―designed primarily to serve purposes closely related to the problems of policing the
border or the necessity of ensuring roadway safety,‖ the drug interdiction checkpoint was aimed at detecting evidence
of ordinary criminal activity not related to the checkpoint. Thus, when non-specific crime control is its aim, a
checkpoint must be based on individualized reasonable suspicion of wrongdoing.

§ 5.05 License and Vehicle Registration Inspections
Stopping a vehicle solely for the purpose of checking driver‘s license and registration, without a reasonable suspicion
that a motorist is unlicensed or the vehicle unregistered, is unreasonable under the Fourth Amendment.‖ Delaware v.
Prouse, 440 U.S. 648 (1979). However, the Court in Prouse indicated that a procedure to conduct suspicionless
license/ registration inspections that was less intrusive or did ―not involve the unconstrained exercise of discretion‖
might be permissible.

§ 5.06 “Special Needs” Searches
         [A] In General
The ―special needs‖ doctrine is another exception to the warrant and probable cause requirements of the Fourth
Amendment. Special needs cases generally arise from searches by government actors other than police officers,
such as school officials, public employers, and probation officers.

 The doctrine applies when the government can demonstrate that:
        (1) it is impracticable to obtain a warrant;
        (2) the governmental interest outweighs the intrusion;
        (3) the immediate objective of the search is one other than to generate evidence for law enforcement
purposes, even if the ultimate goal is non-criminal in nature.

          [B] Searches of Personal Property and Premises
                    [1] Public School Students
While the Supreme Court has recognized that public school students retain a legitimate expectation of privacy in the
private property they bring to school, it has held that neither the warrant requirement nor the traditional doctrine of
probable cause applies to public school searches. New Jersey v. T.L.O, 469 U.S. 325 (1985). Public school
teachers and administrators may search students without a warrant if two conditions are met:
(1) there are reasonable grounds to suspect that the search will reveal evidence that the student has violated or is
  violating either the law or a school rule; and
(2) the search is not excessively intrusive in light of the student‘s age and sex and the nature of the suspected
  violation.

                   [2] Public Employees
A public employer may search the office, including the desk and file cabinets, of an employee suspected of
employment infractions, without a warrant or probable cause under the special needs exception. O’Connor v. Ortega,
480 U.S. 709 (1987). For a search to be reasonable, the employer must have ―reasonable grounds for suspecting
that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is
necessary for a non-investigatory work-related purpose.‖

                 [3] Probationers
The Court has approved a warrantless, non-exigent search by a probation officer of the home of a probationer, based
on ―reasonable grounds‖ to believe contraband would be discovered there, pursuant to a state regulation authorizing
such searches. Griffin v. Wisconsin, 483 U.S. 868 (1987).

         [C] Drug and Alcohol Testing

                   [1] Approved Testing
In limited circumstances, drug and alcohol testing (by taking blood, urine, or breath samples) of public employees and
public school students, in the absence of a search warrant and in the absence of individualized suspicion, may be
constitutional.

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The following general factors tend to render a drug/alcohol testing program constitutionally reasonable:
         (1) regardless of the ultimate goal of the testing, the immediate objective of the testing is not to generate
evidence for criminal law enforcement purposes;
         (2) in an employment context, persons being tested are working in an already highly regulated job; in
non-employment contexts, persons tested have a reduced expectation of privacy;
         (3) in the employment context, there is a significant relationship between the employee‘s job responsibilities
and the employer‘s concern about drug or alcohol use; in non-employment contexts, there is a significant societal
reason for identifying drug users or alcohol abusers;
         (4) procedures limit the risk of arbitrary application of the testing;
         (5) care is taken to protect the dignity of persons tested in the specimen-collection process;
         (6) a regime based on individualized suspicion would have been impracticable;
         (7) there exists empirical evidence of a substantial need for the random testing program in question.

See Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989); National Treasury Employees Union v.
Von Raab, 489 U.S. 656 (1989) (upholding drug and alcohol testing of public employees) and Vernonia School
District 47J v. Acton, 515 U.S. 646 (1995) (authorizing random drug testing of public school students voluntarily
participating in school athletics programs where there was considerable evidence of a serious drug problem in the
school district).

                   [2] Disapproved Testing
Drug testing programs have been found not to pass the special needs test where:
         (1) the testing was not in response to any suspicion of drug use by the target group, Chandler v. Miller,
520 U.S. 305 (1997) (striking down Georgia‘s requirement that various candidates for state office pass a drug test
where there was no fear or suspicion of drug use by state officials).
         (2) the immediate objective of the drug testing was to generate evidence for law enforcement
purposes, even though the policy‘s ―ultimate purpose‖ was a beneficent one, Ferguson v. City of Charleston, 121 S.
Ct. 1281 (2001) (invalidating procedures to identify and non-consensually test any maternity patient suspected of
drug use who came to a public hospital, where the policy was aimed at prosecuting drug-abusing mothers and forcing
them into drug treatment programs).

In cases where the ―special needs‖ exception does not apply, a valid search warrant is required in order to conduct
the testing.




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Sixth Amendment
                                Person has a Legitimate                  Factors:
                                Expectation of Privacy in the            (1) the purely commercial nature of the
                                Invaded Place (Rakas v. IL) No            transaction engaged in there;
                                ―target standing‖ no standing just b‘c   (2) the relatively short period of time in
Standing to Bring
                                target of search/seizure                  the apartment; and
Claim
                                Overnight Guest has Standing (MN         (3) the lack of any previous connections
                                v. Olsen)                                 between the two defendants and the
                                Merely Present Has no Standing            occupant of the apartment.
                                MN v. Carter:
                                                                         a court may rule that the owner lacks
                                owner lends his/her vehicle to
                                                                         standing if the owner gives another
Automobile Out of               another, at least if for a short
                                                                         person complete control of the car
Owner’s Possession              duration, the owner maintains a
                                                                         and its contents for an extended
                                legitimate expectation of privacy
                                                                         period of time
                                A non-owner occupant of an
                                automobile may have standing to
                                contest a search, under the test set
                                forth in Rakas [439 U.S. 128]. E.g.,
                                                                         Some courts have held that a
                                where the owner lends the car to the
                                                                         passenger does not have standing to
                                occupant for a period of time and the
Search of Another                                                        contest a search and seizure of a
                                occupant has complete dominion and
Persons’ Automobile                                                      vehicle in which the passenger is
                                control of the automobile at the time
                                                                         traveling.
                                of the search, the occupant may be
                                found to have had a reasonable
                                expectation of privacy in the
                                automobile.




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 th      th
5     v. 6 Amendments           Fifth Amendment Miranda Rights           Sixth Amendment Right to Counsel


                                                                         Applies Only After Adversary Judicial
                                Right Attaches once D has been
Timing                                                                   Criminal Proceedings have been
                                Taken into Custody
                                                                         Initiated Against the Accused

                                                                         Applies When Accused Has Been
                                Right Does Not Attach Unless D is in
Custody                                                                  Released from Custody on Bail or His
                                Custody
                                                                         Own Recognizance

                                Once Custodial Interrogation Begins,
Nature of Offense               Right to Counsel Applies to Any and      Is Offense Specific
                                All Offenses
                                Right to Counsel Applies when the
                                custodial Suspect is ―Interrogated and
                                                                         Prohibits Deliberate Elicitation and
Focus of Inquiry                Focuses on the Perceptions of the
                                                                         Focuses on the Intentions of the PO
                                Suspect (whether or not he believes
                                he‘s in custody)
Questioning by                  Right to Counsel is not invoked when
                                                                         Applies to deliberate elicitation by overt
Undercover Agent or             suspect is questioned by an informant
                                                                         and covert government agents
Informant                       or undercover officer

Fruit of the Poisonous          Does Not Apply to Fifth Amendment
                                                                         Applies to Sixth Amendment Violations
Tree Doctrine                   Right to Counsel

                                Statements secured in violation of the   Jackson Rule: Statements in Violation
Impeachment                     Fifth Amendment May be Used for          of the Sixth Amendment May Be Used
                                Impeachment                              for Impeachment




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 th      th
5     v. 6 Amendments           Fifth Amendment Miranda Rights            Sixth Amendment Right to Counsel

                                [A] Elements of Valid Waiver              Once the Sixth Amendment right to
                                After Miranda Warning: Expressly          counsel attaches, and the accused
                                states a willingness to make a            requests counsel, the government
                                statement, without the presence of an     may not initiate conversation with the
                                attorney, ―followed closely‖ by such      accused relating to the crime at hand in
                                statement.                                the absence of counsel, even if the
                                The validity of the waiver must be        accused waives the right in response to
                                based on an assessment of ― ‗the          the police elicitation.
                                particular facts and circumstances
                                surrounding that case, including the      However, if the accused initiates
                                background, experience, and conduct       conversation with the police, and
                                of the accused.‘ ‖ Edwards v. Arizona,    waives his right to counsel,
                                451 U.S. at 482 (quoting Johnson v.       interrogation in the absence of counsel
                                Zerbst, 304 U.S. 458, 464 (1938)).        may proceed. Michigan v. Jackson,
                                                                          475 U.S. 625 (1986) (defendant was
                                [B] Voluntary, Knowing, and               appointed counsel whom he had not yet
                                Intelligent Waiver                        met when the police contacted the
                                                                          defendant, read him his Miranda [384
                                In order to be valid, a waiver must       U.S. 436] rights, obtained a waiver, and
                                have been given ―voluntarily,             questioned him, even though the
                                knowingly, and intelligently.‖ Colorado   defendant had asked for his lawyer
                                v. Connelly, 479 U.S. 157 (1986).         several times; the Court held that the
Waiver                          - A voluntary waiver is ―the product of   waiver was invalid because the police
                                a free and deliberate choice rather       initiated the conversation after the
                                than intimidation, coercion, or           defendant had requested counsel).
                                deception.‖
                                - A knowing and intelligent waiver is     Before Counsel is Appointed or
                                made with ―full awareness of both the     Hired
                                nature of the right being abandoned
                                and the consequences of the decision      In the absence of a request for
                                to abandon it.‖ Moran v. Burbine, 475     counsel after the right attaches, the
                                U.S. 412 (1986).                          police are permitted to seek from the
                                - A waiver cannot be deemed               accused a waiver of his right to
                                ―knowing and intelligent‖ unless the      counsel. Patterson v. Illinois, 487 U.S.
                                police issued proper Miranda [384         285 (1988) (upholding the admissibility
                                U.S. 436] warnings.                       of the post-indictment statements made
                                                                          after issuance of Miranda [384 U.S.
                                [C] Express and Implied Waiver            436] warnings and procurement of a
                                Valid Waiver Cannot be Presumed           waiver of the right to counsel, where at
                                from Silence After Miranda Warning        the time of the post-indictment
                                                                          questioning, the defendant had not yet
                                But: Express Waiver, Not Necc..           retained, or accepted by appointment, a
                                North Carolina v. Butler, 441 U.S. 369    lawyer to represent him).
                                (1979). In some cases, waiver may
                                be clearly inferred from the suspect‘s    After Counsel is Appointed or Hired
                                words and actions that follow Miranda     Fn: Patterson [487 U.S. 285], the Court
                                Warnings. (voluntarily starts             hinted that once counsel has been
                                conversations?)                           appointed or hired, the police may not
                                                                          seek a waiver of the right to counsel
                                Waivor:                                   from the defendant until he has had the
                                A suspect initiates ommunications,        opportunity to meet with counsel
                                exchanges or conversations by any         (stating that it was ―a matter of some
                                comment or inquiry that indicates his     significance‖ that the defendant, whose
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                                desire to engage in a discussion         waiver of right to counsel was found
                                relating directly or indirectly to the   valid, had not yet retained or been
                                investigation.                           appointed counsel).
                                Comments or inquiries ―relating to
                                routine incidents of the custodial       A fnCobb [532 U.S. 162], however, calls
                                relationship,‖ such as a request for     this position into question (stating ―there
Waiver                          water or to use a telephone, do not      is no ‗background principle‘ of our Sixth
                                qualify as ―communications,              Amendment jurisprudence establishing
                                exchanges, or conversations‖ and         that there may be no contact between a
                                thus do not properly trigger further     defendant and police without counsel
                                police interrogation. Oregon v.          present‖), suggesting that a waiver may
                                Bradshaw, 462 U.S. 1039 (1983).          be valid if the accused does not request
                                                                         assistance of counsel even if counsel
                                                                         has been appointed.

                                                                          Sufficiency of Waiver
                                                                         a waiver of the right to counsel prior to
                                                                         post-indictment interrogation must be
                                                                         voluntary and made ―knowingly and
                                                                         intelligently.‖ [See Chapter 9, Custodial
                                                                         Interrogation.
                                                                         Person has a Legitimate Expectation
                                                                         of Privacy in the Invaded Place (Rakas
                                                                         v. IL) No ―target standing‖ no standing
                                                                         just b‘c target of search/seizure
                                                                         Overnight Guest has Standing (MN v.
                                                                         Olsen)
                                1. Custody                               Merely Present Has no Standing
Standing to Bring               2. Coercion                              MN v. Carter: Factors:
Claim                           3. Interrogation                         (1) the purely commercial nature of the
                                4. No Miranda Rights Read                 transaction engaged in there;
                                                                         (2) the relatively short period of time in
                                                                          the apartment; and
                                                                         (3) the lack of any previous connections
                                                                          between the two defendants and the
                                                                          occupant of the apartment.




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                                               th
                                                 4 Amendment Rights: Right to be Secure From Unreasonable Searches and Seizures
People                      Citizens / Signif. Cnxn. To U.S. immigrants
Standing                    No Vicarious Assertion. Only person who has been subject to
                            unreasonable search and seizure can assert violation
Governmental Action         Government Action
                            Agent of Government (private Person)                                      Degree of Involvement in Situation and Totality of Circumstances
                            Includes conduct by other Gov‘t EE‘s, firefirghters, public school        Administrative Searches not Investigatory Ones
                            teachers, housing inspectors
[A] “Persons”                (1) the defendant‘s body as a whole (as when he is arrested);
                            (2) the exterior of the defendant‘s body, including his clothing (as when
                            he is patted down for weapons);
                            (3) the interior of the defendant‘s body (as when his blood or urine is
                            tested for drugs or alcohol);
                            (4) the defendant‘s oral communications (as when his conversations
                            are subjected to electronic surveillance).

Houses                      Residences (including temporary basis i.e. hotel room)                    Factors relevant to determining whether land falls within the cartilage are:
                            Bldgs. Attached to residences (garage)                                    (1) the proximity of the land to the home;
                            Bldgs. Not attached, but used for intimate activites of the home (shed)   (2) whether the area is included within enclosures surrounding the house;
                            Curtilage of Home (immediately surrounding and assoc. with home)          (3) the nature of the use to which the area is put; and
                            Fields Surrounding, falls outside of cartilage                            (4) the steps taken by the resident to protect the land in question from
                                                           th
                            Commercial Bldgs. = limited 4 privacy (less expectation of privacy)
Papers & Effects            Personal items and impersonal business records.
                            Effects: everything but house.
SEARCH                      Standard:                                                                 Old Trespass Doctrine of Katz, relied upon trespass into constitutionally
                            Reasonable Expectation of Privacy                                         protected area
NO Search Occurrs
3d Party Doctrine           Does not protect from surveillance if one party consents to such
                            surveillance.
Penn Registers              Phone company #‘s = no search
Electronic Tracking         Visual Tracking Devices = no search                                       Unless device can monitor inside Constitutionally Protected Area. Then
Devices                                                                                               Warrant is required.
Aerial Surveillance         Not a Search                                                              Test:
                                                                                                      (1) occurs from public navigable airspace;
                                                                                                      (2) is conducted in a physically non-intrusive manner; and
                                                                                                      (3) does not reveal intimate activities traditionally connected with the use
                                                                                                      of a home or curtilage.

Dog Sniffs/ Test for        Activity Aimed @ Detecting Mere presence of Contraband (ID‘ing            Test to Determine Personal Use of Contraband = is a search
Contraband                  suspicious substance) = not a search
Inspection of               Not a search, no expectation of privacy
Garbage

SEIZURE
Seizure of Property         Seizing of a person‘s possessory interest in property                     Meaningful interference with an individual possessory interest in
                                                                                                      that property.

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                                                 4 Amendment Rights: Right to be Secure From Unreasonable Searches and Seizures
Seizure of Persons            Examples of activities that constitute a seizure of persons include:     Seizure of person occurs when
                             arrests.                                                                 Terry: by means of physical force or show of authority, in some way
                             physically restraining or ordering a person to stop in order to frisk or restrains liberty of citizen
                              question him on the street.                                              Mendenhall: a REASONABLE person would have believed he was not
                             taking the person into custody and bringing him to a police station for  free to leave
                              questioning or fingerprinting.
                             ordering a person to pull his automobile off the highway for questioning
                              or to receive a traffic citation.
                             stopping a car by means of a roadblock.

Brief Questioning             Is NOT a Seizure                                                         Bostik: brief questioning during a ―bus sweep‖ is not seizure
                                                                                                        Delgado: INS brief questioning about citizenship during a ―Factory
                                                                                                       sweep‖ is not seizure
All Evidence can be           Abolished Mere Evidence Rule by Warden v. Hayden: PO can seize
Seized                        any evidence that has a connection to criminal activity under
                              investigation
PROBABLE CAUSE
Scope                         Probable cause is required as the basis for:                             Minor Intrusions (pat-down for weapons): Standard is Reasonable
                             (1) arrest and search warrants; and                                       Suspicion.
                             (2) all arrests (regardless of whether an arrest warrant is required)     If intrusion on personal privacy is slight, and society‘s interest conducting
                                                                                                       search or seizure significant, no need for individualized suspicion. (border
                                                                                                       checkpoints, admin. Searches)
Definition                    ―Probable cause‖ exists when the facts and circumstances within an
                              officer‘s personal knowledge, and about which he has reasonably
                              trustworthy information, are sufficient to warrant a “person of
                              reasonable caution” to believe that:
                           (1) in the case of an arrest, an offense has been committed and the
                              person to be arrested committed it.
                           (2) in the case of a search, an item described with particularity will be
                              found in the place to be searched.

Basis for PC                  Probable cause may be founded on:
                           (1) direct information, i.e., information the officer secured by personal
                              observation; and
                           (2) hearsay information.

PC based on Hearsay            Aguilar-Spinelli Test                                                   The basis-of-knowledge prong is satisfied if the informant personally
                              Hearsay information had to satisfy both of the test‘s prongs below in    observed the reported facts. If the information was second-hand, the
                              order to be deemed sufficiently trustworthy to be included in the        magistrate would need to ascertain the reliability of that source. In some
                              probable cause assessment:                                               circumstances, the basis-of-knowledge prong could be satisfied by ―self-
                           (1) the basis-of-knowledge prong; and                                       verifying detail,‖ where the information provided by the informant was so
                           (2) the veracity prong, of which there are two alternative spurs:           rich in detail that it was reasonable to conclude that he had obtained it
                           (a) the ―credibility-of-the-informant spur‖ and                             first hand
                           (b) the ―reliability-of-the-information spur.‖                              To satisfy the veracity prong, evidence was required to demonstrate
                              Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393    either that the informant was a credible person (the credibility spur of the
                              U.S. 410 (1969).                                                         veracity prong) or, if that could not be shown, that his information in the


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                                                4 Amendment Rights: Right to be Secure From Unreasonable Searches and Seizures
                                                                                                   specific case was reliable (the reliability spur).

                                                                                                               If one of the prongs was not satisfied, the hearsay evidence standing
                                                                                                               alone was deemed insufficiently trustworthy, but its trustworthiness could
                                                                                                               be resuscitated by at least partial corroboration.

PC based on                  “Totality of the Circumstances” Test
Informant                    In Illinois v. Gates, 462 U.S. 213 (1983), the Court abandoned Aguilar
                             and substituted the totality-of-the-circumstances test for probable cause
                             determinations, which requires the magistrate to balance ―the relative
                             weights of all the various indicia of reliability (and unreliability) attending
                             an informant‘s tip.‖ The factors enunciated in Aguilar - basis-of-
                             knowledge and veracity - remain ―highly relevant‖ in determining the
                             value of an informant‘s tip but are no longer treated as separate,
                             independent requirements.

Particularity of             The Fourth Amendment provides that a warrant must describe with                  Particularity Means:
Warrant                      particularly ―the place to be searched, and the persons or things to be -                 Place to be Searched
                             seized.‖                                                                -                 Persons or Things to be Seized
                                                                                                                                                                        st
                                                                                                     -                 Less specificity required for papers & effects (1 amend.
                                                                                                              Protections)
Execution of                         Knock-and-Announce Rule                                                  The knock-and-announce rule may be dispensed with when the
Warrants                   May Not Forcibly Enter to execute a warrant Unless                                 police:
                       -             First knock                                                           (1) have chased the person named in the warrant to his home in hot
                       -             ID themselves                                                            pursuit;
                       -             State purpose for seeking entry                                        (2) have reasonable suspicion that evidence may be imminently
                       -             Request admission                                                        destroyed; and
                       -             Are refused admission                                                  (3) have reasonable suspicion that there is a risk of harm to the officers or
                                                                                                              others.

Scope of Search              Only Allowed to Search for Items Specified in the Warrant: Can look in
                             containers large enough to contain object of search. (i.e. dresser for
                             narcotics, but not for TV)
Allowed to Seize             Nevertheless, the police are authorized to seize any item (whether or
                             not it is described in the warrant) if:
                             (1) they discover the item while searching a place that they have the
                             authority to search;
                             (2) the item is located in such area; and
                             (3) they have probable cause to believe the item is subject to seizure.

Search of Persons            Public Place: may not extend search to person not named in warrant,               Suspicion of Armed & Dangerous allows Terry Frisk.
While Executing a            unless REASONABLE SUSPICION that person is armed and                              Reasonableness Balancing Standard: Ybarra: if warrant is for
Warrant                      dangerous                                                                         bartender, can‘t frisk the taver customers for weapons, without reason to
                                                                                                               believe they‘re armed.
Search of Persons in         Court Split:
Private Home while           Some Allow Automatic Frisk for Weapons. Other Courts require
Executing Warrant            particularized suspicion.

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                                                th
                                                 4 Amendment Rights: Right to be Secure From Unreasonable Searches and Seizures
Detention of Persons        MI v. Summers: During search for contraband, PO have limited
During Searches             authority to detain all occupants of premises to be searched. (beyond
                            contraband, unknown)
WARRANTLESS                 Reasonableness Balancing Standard                                        Whether Warrant and Probable Cause clauses of the Fourth Amendment
SEARCHES                                                                                             apply to a given search and/or seizure, the “central inquiry” is the
                                                                                                     reasonableness of the government‟s activity under the
                                                                                                     circumstances; “reasonableness” is assessed by balancing the
                                                                                                     need to search or seize against the invasion the search or seizure
                                                                                                     entails.
                            Reasonable Suspicion:
                            Suspicion is ―reasonable‖ if the officer can point to specific and
                            articulable facts that, along with reasonable inferences from those
                            facts, justify the intrusion. Reasonable suspicion that a crime has been
                            or is being committed may be based on one or more of the following
                            information:
                                     the police officer‘s personal observations.
                                     reliable hearsay.
                                     criminal profiles.
                                     unprovoked flight.

Informant                   Adams v. Williams: Enough indicia of reliability to justify a Terrystop.    Informant ID‘s himself
                                                                                                        Or Has provided reliable info to PO on prior occasion
                            AL v. White: Lacking in Sufficient Indicia of Reliability to be             Totality of the Circumstances Does not Justfy Terry stop:
                            Corroberated                                                            -             anonymous Informant
                                                                                                    -             insufficient basis for statements
                            Uncorroborated Anonymous Tip can never serve as sole basis for Terry
                            Stop FL v. J.L.
Criminal Profiles           PO can use ―typical behaviors of certain criminals‖
Flight in high Crime        Unprovoked Flight + other Factors = Reasonable Suspicion to Jusify
Areas                       Search & Seizure
                            IL v. Wardlow
Race & Ethnicity            Terry Stop based solely on race is inadmissable, but coupled with other
                            factors can give rise to reasonable suspicion.
Length of Detention         U.S. v. Place (90 min. detention for dog sniff test = excessive length)
of Terry Stop               US v. Sharpe (16 hr. detention ok waiting for woman to pass narcotics
                            balloon who had refused x-ray)
                            US v. Sharpe: did PO act unreasonably in failing to pursue less
                            intrusive method
Terry Search: Limited       when an officer has reason to believe that the suspect is armed and         Terry Search is Limited to Determining Whether Suspect is Armed:
to Weapon Searches          dangerous, the officer has the constitutional authority to conduct a      (1) If an officer feels no object during a pat-down, or feels an object that
                            search for weapons without probable cause or a warrant.                     does not appear to be a weapon, no further search is justifiable.
                                                                                                      (2) If the initial pat-down – with no further touching – provides the officer
                                                                                                        with probable cause for believing that an object felt is contraband or other
                                                                                                        criminal evidence subject to seizure, he may pull out the object without a
                                                                                                        warrant, as part of the plain-touch doctrine.
                                                                                                        (3) If the officer feels an object that he reasonably believes is a weapon,

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                                                                                                 the officer may conduct a search by removing the object from the
                                                                                                 suspect.
                                                                                               (4) If the object he pulls out is a container, he may feel the container to see
                                                                                                 if it might contain a weapon inside.
                                                                                               (5) If his suspicions regarding the container are not reasonably dispelled by
                                                                                                 its size, weight, and feel, the officer may, at a minimum, retain possession
                                                                                                 of the container.
                                                                                                 (6) If the container could not reasonably contain a weapon, it may not be
                                                                                                 searched or seized.

Weapons Search of      Limited to Areas where weapon may be found if PO reasonably
Auto                   believes that suspect is dangerous and may gain control of weapon MI
                       v. Long
Temporary Seizures     US v. Place: may temporarily seize luggage on reasonable suspicion
of Property            that it contains narcotics, to investigate further (i.e. conduct dog-sniff)
Searches & Seizures    The taking of a blood, urine or breath sample, or subjecting the suspect
of the Bod             to other intrusions of the body, e.g., an x-ray, may be permissible
                       without a warrant if:
                    (1) the police are justified in requiring the individual to submit to the test;
                       and
                    (2) the means and procedures employed are reasonable.
                       (Schmerber)
Exigent                Exigent circumstances can justify a warrantless entry of a home to              Welsh v. WI (doesn‘t apply to minor offenses, entering home for blood
Circumstances          make a felony arrest or to conduct a search related to a serious                sample of drunk guy)
                       offense under the following circumstances:
                      (1) hot pursuit of a fleeing felon;                                              Allowed in Emergency Situs: but that‘s not investigative capacity, but
                      (2) imminent destruction of evidence;                                            care-taker capacity.
                      (3) the need to prevent a felon‟s escape; or
                      (4) risk of harm to the police or others.

SITA                        Areas that may be searched without Warrant
                            Regardless of whether or not an arresting officer suspects weapons,        Within the Arrestee’s Immediate Control
                            evidence, or dangerous persons will be discovered, contemporaneous         Factors to consider in determining the arrestee‘s ―grabbing area‖ are:
                            with a custodial arrest, an officer may conduct a warrantless search               whether he is hand-cuffed in front or behind his back.
                            of: Arrestee’s Person                                                              his size and dexterity.
                            The search of an arrestee may include pockets of his clothing, and any             the size of the space he is in.
                            containers found therein, as well as containers immediately associated             whether containers within his reach are open or shut, and if shut,
                            with him, such as a briefcase or shoulder bag, that are large enough to    whether they are locked.
                            conceal a weapon or evidence of a crime.                                           the number of officers relative to suspects.


No SITA in Home             Aside from those areas within a residence to which the ―search-            Immediately Adjoining Spaces: if arrest is home: MD v. Buie: spaces
                            incident-to-arrest‖ exception applies, the police may not search the        where immediate attack may be launched. Limited to cursory visual, and
                            entire house without a warrant. Chimel v. California, 395 U.S. 752          lasts only as long as necc. To dispel Reasonable Suspicion of Damage
                            (1969).

Arrests on Road             PO can do warrantless search of passenger compartment and all              But Trunk and Engine Compartment aren‘t part of rule as are Outside

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                             containers, whether opened or closed. (NY v. Belton)                  ―grabbing area‖
Probable Cause to            A police officer may seize without a warrant any article found during
Seize                        the search upon probable cause to believe that it is criminal
                             evidence related to the immediate or another crime, even though
                             probable cause is not necessary to conduct the search.

SITA Requires Full           Takes suspect into full custody, including transport to PO station for
Arrest                       booking.
                             Temporarily Detaining Suspect Doesn‘t Allow SITA (Knowles v. IA)
Automobile Searches          Search @ Scene Allowed: if PO has probable cause to search auto if           (1) the officer stops the vehicle traveling on a public road; or
                             believes that it has contraband, fruits, instrumentalities, or               (2) the officer discovers the vehicle parked, but apparently capable of
                             evidence of a crime if:                                                       operation, in a non-residential location, such as a public parking lot or gas
                                                                                                           station.
                             Search Away from Scene Allowed: if takes places shortly thereafter,
                             PO impound vehicle and conduct search and no lengthy delay
                             US v. Johns – few days ok Coolidge b. NH – 1 yr. delay unreasonable.
Search of Containers         - Container must be large enough to hold criminal evidence for which         Any container that can be constitutionally searched @ Scene can be
                             PO is searching. Doesn‘t matter to whom container belongs.                    searched after.
Plain View /                 PO may seize w/out warrant, incriminating object in Plain View               If PO anticipates discovery of particular item, Plain View doesn‘t cure PO‘s
Plain Touch            -               observes the object from a lawful vantage point                     lack of inclusion in warrant. (Coolidge v. NH)
                       -               lawful right of physical access to object
                       -               nature of its (badness) is immediately apparent upon           -              PO had a right to touch object
                             observation.                                                             -              Able to immediately tell it‘s contraband (MN v. Dickerson)
  Inventory Search           As part of a valid automobile inventory, PO can Open Containers              Routine inventory search of a lawfully impounded car is reasonable
                             found in the car, without a warrant or probable cause. Whether an             under the Fourth Amendment even though it is conducted without a
                             officer police may do so in his discretion, see Florida v. Wells, 495 U.S.    warrant and in the absence of probable cause to believe that evidence of
                             1 (1990), or only where routine practice mandates such procedure, see         a crime will be discovered. Consequently, if police discover criminal
                             Colorado v. Bertine, 479 U.S. 367 (1987), is unclear.                         evidence during an inventory, they may seize it pursuant to the plain view
                                                                                                           doctrine, and introduce it in a criminal prosecution
                             An inventory search of an unlocked glove compartment is            -                    inventory must be routine
                             permissible under the Fourth Amendment. South Dakota v. Opperman,
                             428 U.S. 364 (1976). Unresolved by the Supreme Court is whether a Papers may be barred:
                             locked glove compartment or automobile trunk may be searched         Arrest Inventories = OK
                             without a warrant during an inventory search, although many lower    The police may search an arrestee, as well as his personal effects –
                             courts have authorized such searches when they are a required part   including containers, as part of a routine inventory at a police station,
                             of a routine inventory.                                              incident to his booking and incarceration. Neither a search warrant nor
                                                                                                  probable cause is required for an arrest inventory. Illinois v. Lafayette,
                                                                                                  462 U.S. 640 (1983).

 Consent Searches            Validly Obtained Consent Allows PO to conduct Warrantless Search             Valid Consent:
                             With or WITHOUT probable cause.                                              (1) given voluntarily – The ―voluntariness‖ of consent is determined from
                           -    If search exceeds scope granted, then invalid.                             the totality of the circumstances. Consent that is the result of express or
                                                                                                           implied duress or coercion is involuntary. The prosecutor bears the
                            rd
                           3 Party Consent:                                                                burden of demonstrating by a preponderance of the evidence that
                           - by one who possess common authority over property is valid against            consent was freely given.
                             another with whom authority is shared                                        (2) not based on an officer‟s assertion of authority to conduct a
                           - - mutual use of property by persons generally having joint access or          search on the basis of a warrant, whether or not the warrant is valid.

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                           control for most purposes (US v. Matlock)                            Bumper v. North Carolina, 391 U.S. 543 (1968).
                         - if 3d party lacks common authority with D, but in fact consents to
                           search, evidence can‘t be admitted @ trial against D (Stoner v. CA)

Apparent Authority:
                             (IL v. Rodriquez) warrantless search also constitutional when based on
                            consent of a person whom PO @ time of entry Reasonably believe has
                            common authority over premises, whether or not the authority is valid.
ARREST RULES                Upon probable cause that the suspect has committed or is committing
                            a felony, a police officer:
                           (1) may arrest a person in a public place without a warrant, even if it
                            is practicable to secure one;
                           (2) may not arrest a person in the person‟s home without an arrest
                            warrant, absent exigent circumstances or valid consent; and
                           (3) may not arrest a person in another person‟s home without a
                            search warrant, absent exigent circumstances or valid consent.

Arrest in the Home          The Fourth Amendment prohibits the warrantless, nonconsensual entry             Knock & Announce Rule
                            into a suspect‘s home in order to make a ―routine‖ (non-exigent) felony         An arrest warrant authorizes the police to enter a suspect‘s home only if
                            arrest. Payton v. New York, 445 U.S. 573 (1980).                                 there is reason to believe the suspect is within. As with search warrants,
                            A warrant is not necessary to effectuate an arrest in the curtilage of the       the knock-and-announce rule applies. Even if the police believe the
                            suspect‘s home, however.                                                         suspect is at home, they may not, absent special circumstances, forcibly
                             Moreover, a suspect standing in an open doorway of his home at the              enter a home to execute an arrest warrant unless they first knock,
                            time the police arrive is treated as if he were in a public place, justifying    announce their purpose for entering, request admittance, and are refused
                            a warrantless arrest. United States v. Santana, 427 U.S. 38 (1976).              entry. Wilson v. Arkansas, 514 U.S. 927 (1995
                            Less clear is the situation where the suspect is inside the house until
                            the police knock at the door, at which point the suspect comes to the
                            doorway.

Use of Force for            The police may not use deadly force to make an arrest except                    Deadly or Non-Deadly Force
Arrest                      where:                                                                          Reasonableness Standard
                           (1) the officer has probable cause to believe that the suspect poses a                    the seriousness of the crime committed/being committed.
                                                                                                   
                            significant threat of death or serious physical injury to the officer or                  the extent to which the suspect poses an immediate threat to the
                            others; and                                                                     safety of others.
                            (2) the officer reasonably believes that such force is necessary to                      the extent to which the suspect is resisting arrest or attempting
                            make the arrest or prevent escape.                                              to escape.
                            Tennessee v. Garner, 471 U.S. 1 (1985) (an officer in pursuit of a                       (Graham v. Connor)
                            suspect was ―reasonably sure‖ that the suspect was unarmed but
                            fatally shot him when the suspect refused to stop fleeing- court says,
                            not ok.)

                            If the officer can reasonably effectuate the arrest with non-deadly force,
                            he must do so. Moreover, when feasible, the officer must warn the
                            suspect to stop fleeing before deadly force is employed.




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                             th                                                          th                                             th
EXCLUSIONARY                4 Amendment                                                 5 Amendment                                    6 Amendment
RULE:                       (Rt. Ag. Unfair Search/Seizure)                             (Miranda Warnings/ Rt. To Atty))               (Rt. To Counsel)

Exceptions                  Non-Trial Criminal Proceedings
                            Illegally seized evidence may constitutionally be
                            introduced in a variety of non-trial criminal proceedings
                            including: grand jury proceedings, preliminary
                            hearings, bail proceedings, sentencing, and
                            proceedings to revoke parole.

Impeachment at Trial        A prosecutor may introduce evidence obtained from a         A statement obtained in violation of Miranda   If the police initiate conversation with an accused
                            defendant in violation of the defendant‘s Fourth            [384 U.S. 436] may be used to impeach a        who has requested counsel, in violation of the rule in
                            Amendment rights for the limited purpose of                 defendant at trial. Harris v. New York, 401    Michigan v. Jackson, incriminating statements may
                            impeaching the defendant‘s: (1) direct testimony; or (2)    U.S. 222 (1971).                               be used for impeachment if the accused
                            answers to legitimate questions put to the defendant                                                       subsequently waived the right, despite the fact that
                            during cross-examination. However, such evidence                                                           the improper police conduct precludes admission of
                            may not be used to impeach other defense witnesses.                                                        the statements as part of the prosecution‘s direct
                            James v. Illinois, 493 U.S. 307 (1990).                                                                    case. Michigan v. Harvey, 494 U.S. 344 (1990).

Good Faith”                 Evidence obtained by a police officer in reasonable
Exception                   reliance on a search warrant that is subsequently
                            found invalid may be admissible. United States v.
                            Leon, 468 U.S. 897 (1984). It is necessary that a
                            reasonably well-trained officer would have believed
                            that the warrant was valid. This has come to be known
                            as the ―good faith‖ or Leon exception to the
                            exclusionary rule. Many states, however, have
                            rejected this exception.

Circumstances               When Warrant is Not Valid
Suggesting Invalidity     (1) the magistrate knew statements were false
of Warrant                  (2) the magistrate lacks neutrality: reasonably obvious
                            to officer (i.e signing the warrant without reading it,
                            while in the presence of the officer who later claims
                            reliance)
                         (3) the warrant is based on an affidavit lacking sufficient
                            indicia of reliability,
                         (4) the warrant is facially deficient in that it fails to
                            particularize the place to be searched or the things to
                            be seized.

Improperly Executed         Good Faith Does NOT Cure Improperly Executed
Warrants                    Warrants
Extension of Good           Clerical Error = ok.
Faith Exception             The good-faith exception has been extended to a non-
                            warrant search based on an error made by a court

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EXCLUSIONARY                4 Amendment                                                    5 Amendment                                     6 Amendment
RULE:                       (Rt. Ag. Unfair Search/Seizure)                                (Miranda Warnings/ Rt. To Atty))                (Rt. To Counsel)

                          employee, rather than by a police officer. Arizona v.
                          Evans, 514 U.S. 1 (1995)
Fruit of the Poisonous In general, the exclusionary rule extends not only to               No “fruit-of-the-poisonous-tree” doctrine.       Fruit-of-the-Poisonous-Tree Doctrine
Tree” Doctrine            the direct products of an unconstitutional search and            Michigan v. Tucker, 417 U.S. 433 (1974) (the    The fruit-of-the-poisonous-tree doctrine applies to
                          seizure but also to ancillary evidence that results from         government may call a witness to testify at     violations of the Sixth Amendment right to counsel.
                          the illegal search. The fruit-of-the-poisonous-tree              trial, even if that witness‘s identity became   See Nix v. Williams, 467 U.S. 431 (1984).
                          doctrine is subject to three qualifications:                     known as a result of a statement by
                      (1) the independent source doctrine;                                 defendant secured in violation of Miranda);
                      (2) the inevitable discovery rule; and
                      (3) the attenuated connection principle.                             Oregon v. Elstad, 470 U.S. 298 (1985) (the
                                                                                           government may introduce a defendant‘s own
                                                                                           voluntary, post-Miranda, admissions, even if
                                                                                           they were obtained as a result of an earlier
                                                                                           Miranda violation).

                                                                                           Tucker [417 U.S. 433] and Elstad [470 U.S.
                                                                                           298] were based on the premise that Miranda
                                                                                           [384 U.S. 436] was a ―prophylactic‖ but not a
                                                                                           constitutional rule.
                                                                                           Dickerson v. United States, 530 U.S. 428
                                                                                           (2000), departed from the reasoning in Tucker
                                                                                           and stated that Miranda was in fact a
                                                                                           constitutional decision.

Independent Source           Evidence that is not causally linked to unconstitutional
Doctrine                     governmental activity is admissible pursuant to the
                             independent source doctrine. The doctrine applies if
                             the challenged evidence is:
                       (1)          first discovered during lawful police activity;
                             or
                        (2) initially discovered unlawfully, but is later obtained
                             lawfully in a manner independent of the original
                             discovery. Murray v. United States, 487 U.S. 533
                             (1988).

Inevitable Discovery        Preponderance of Evidence that ―ultimately or
Rule                        inevitably would have been discovered by lawful
                            means.‖ Nix v. William, 467 U.S. 431 (1984).

Attenuated                  Evidence that otherwise qualifies as fruit-of-the-
Connection Principle        poisonous-tree may be admissible if its connection
                            with the illegal police activity is so attenuated that it is
                            purged of the taint. Nardone v. United States, 308
                            U.S. 338 (1939); Wong Sun v. United States, 371 U.S.
                            471 (1963). Factors that may influence whether fruit of

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                             th                                                           th                                 th
EXCLUSIONARY                4 Amendment                                                  5 Amendment                        6 Amendment
RULE:                       (Rt. Ag. Unfair Search/Seizure)                              (Miranda Warnings/ Rt. To Atty))   (Rt. To Counsel)

                            the poisonous tree evidence is purged of its taint
                            include:

Temporal Proximity          The shorter the time lapse between the Fourth
                            Amendment violation and the acquisition of the
                            challenged evidence, the more likely it is that a court
                            will conclude that the evidence is tainted. For example,
                            in Wong Sun [371 U.S. 471], the police obtained a
                            statement from the defendant in his bedroom
                            immediately after his unlawful arrest. The Court
                            suppressed this evidence, ―which derive[d] so
                            immediately from the unlawful entry.‖

Intervening Events          The more factors that intervene between the Fourth
                            Amendment violation and the seizure of the challenged
                            evidence, the more likely it is that the evidence will be
                            deemed to have lost its taint.

Intervening Act of          An intervening act of free will can remove the taint of
Free Will                   an earlier Fourth Amendment violation. For example,
                            in Wong Sun [371 U.S. 471], upon his release from jail
                            after his unlawful arrest, the defendant later voluntarily
                            returned to the police station and provided a written
                            statement. The Court found that the voluntary nature of
                            the defendant‘s conduct removed from his statement
                            any statement from the initial violation.

                            However, the Court has warned that Miranda [Miranda
                            v. Arizona, 384 U.S. 436 (1966)] warnings alone
                            cannot convert a confession following a Fourth
                            Amendment violation into a product of free will,
                            breaking the link between the statement and the
                            violation. Brown v. Illinois, 422 U.S. 59 (1975).
                            Therefore, if the police arrest a suspect on less than
                            probable cause, administer Miranda warnings, obtain a
                            waiver from the suspect, and thereafter secure a
                            confession, the question of whether the subsequent
                            statement was the product of the suspect‘s free will
                            must be determined based on the totality of the
                            circumstances.

Payton violation            Where the police have probable cause to arrest a
                            suspect, the exclusionary rule does not bar the State‘s
                            use of a statement made by the defendant outside of
                            his home, even when he was arrested in his home

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EXCLUSIONARY               4 Amendment                                                  5 Amendment                        6 Amendment
RULE:                      (Rt. Ag. Unfair Search/Seizure)                              (Miranda Warnings/ Rt. To Atty))   (Rt. To Counsel)

                           without a warrant in violation of Payton. New York v.
                           Harris, 495 U.S. 14 (1990).

Flagrancy of the           Fruit of the poisonous tree evidence is less likely to be
Violation                  free of taint if the Fourth Amendment violation was
                           flagrant rather than unintentional.
Nature of the              Some evidence, by its nature, is more susceptible to
Derivative Evidence        dissipation of the taint than other evidence, e.g., verbal
                           evidence is more likely to be admissible than physical
                           evidence.




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