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					                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002

                    Criminal Justice I Outline
                                 Professor Green
                                   Spring 2002

Incorporation:
   1) fundamental rights/fairness- 1940’s-1960’s (Hurtado and Twining were
      precursors) looks at 14th in a minimalist way- what is the least it can mean.
      No direct correlation between the Bill of Rights and due process- some
      overlap, but are separate sources of law. Tends to look at individual
      cases.
                 o Justice Fortas concurring- right to trial by jury- but not all of
                     the federal rules b/c right to jury is basic the rest is not
                 o Justice Harlan dissenting- no right to a jury in this case b/c
                     right to a jury in some cases is fundamental, but for minor
                     crimes the state has some leeway.
             Problems with this view- no limits on the judges- they decide which
             rights are fundamental
   2) Total incorporation- Justice Black- never adopted by the court. Due
      process contains all of the rights in the Bill of Rights but nothing more.
      Incorporates all of the body of law around the BOR and the Federal
      governments. Does put some limits on the judges- they don’t get to make
      value judgments.
   3) Selective incorporation/pseudo-fundamental rights- broader
      perspective than fr/f approach- not at individual cases, but at the whole
      body of potential cases. Outcome oriented.
             Problems with this view- similar to the fundamental rights/fairness
             approach- no constraints on the judges. No coherency in
             underlying theory, no consistency.

Significance of all of this- once a right is discovered to come under the 14th
amendment there is a big change on the systems of all the states and a certain
amount of uniformity then occurs.

The Fourth Amendment Textual Overview:
      Who is protected- “the people”-
         o citizens only? Resident aliens? Illegal aliens? US citizens abroad?
         o Not a lot of law on point- generally any search on US soil is held
            to the 4th amendment standards.
         o Verdugo-Urquidez- Mexican citizen arrested on drug charges in
            Mexico- DEA agents searched and seized his property in Mexico
            with out a warrant. Ct. ruled against the defendant.

       The LA Constitution Art.1 Section 5 “Every person” different from “the
       people” the people as the American People seems reasonable, but it
       makes sense that every person includes all persons regardless of
       nationality and of where the evidence was seized.


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                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002

    o What is guaranteed- “secure in their persons, houses, papers, and
      effects…”
          o what about telephone conversations? Land line v. cell phone v.
             computer transmissions?

       LA Constitution includes the word communications in its list of protected
       things.

   What is the relationship between “reasonableness” and the warrant
    requirement of probable clause?
       o When is a warrant required? May be that if there is no warrant the
          search is at least presumed to be unreasonable.

       LA constitution follows with similar language and doesn’t really clear
       anything up.

   What is probable cause?
      o It is not defined anywhere in the constitution
      o is it a proxy for reasonable?
      o Does it apply to warrentless searches and seizures as well?

   From whom are the people protected?
       o Only from government agents.
       o If a private person or entity searches without prior involvement from
         government agent the evidence may be admissible.

No reference to criminal trial is in the 4th amendment- all have this right- not
just defendants in a criminal case.

What is the remedy in the case where there is no criminal trial- especially if
nothing was actually destroyed?

What if the rights violated were someone else’s, but the evidence is against
you? Is the evidence admissible?

What is the remedy and does it apply against state courts?




4th Amendment and its Exclusionary Rule- Application to the
States:



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                                                                       Criminal Justice I Outline
                                                                               Professor Green
                                                                                    Spring 2002
                Weeks v. United States: mail fraud/lottery type charge- warrentless
                search of a house and seizure of papers and tickets by a federal marshal
                and some local cops.
                      o Weeks rights were violated by the Federal Marshal.
                      o Holding was that the evidence taken by the Marshall was
                          inadmissible but that taken simply by the cops (and not as
                          agents of the feds) could be admissible.
                      o 4th Amendment doesn’t apply to the states.

                Wolf v. Colorado: state court prosecution. State sought to introduce
                evidence (an appointment book seized with out a warrant- he was
                accused of performing an illegal abortion) State agents were the ones who
Progression     seized the book.
to full
                       o Ct. says that the 4th amendment does apply to the states
applicability
on the                 o and that Wolf’s rights were violated,
states                 o but upholds the conviction because the court will not apply the
                          federal remedy to the states- the exclusionary rule is not
                          applied.

                Rochin- state or local police broke into room, saw pills,  swallowed them,
                the police tried to get them out, then had him taken to a hospital where his
                stomach was pumped. In prosecution for morphine possession the pills
                were the evidence.
                    o ct. says that while the exclusionary rule would not be applied to
                        all state cases- in cases that shocked the conscience, it would
                        apply.

                Mapp v. Ohio: Boxer’s girlfriend’s house is searched looking for a bomber
                (Don King?) and they only find “dirty pictures”  refused to admit the
                police without a warrant- police then flash a piece of paper which they
                seemed to claim was a warrant, but when  wanted to see it- she grabbed
                it and stuffed it in her blouse- they took it back by force, and at trial the
                police could not produce it. Case goes all the way up to the S.Ct. on 1st
                amendment issues- all the briefs were on those issues- the court- without
                briefing- decides to rule on it as a 4th amendment case instead.
                Reasoning:
                     Overrules Wolf- says that the exclusionary rule does apply to the
                        states.
                     Exclusionary rule designed to remove an incentive for the police to
                        break the law- police breaking the law invites contempt for the law.
                     Introducing tainted evidence also taints the proceedings of the
                        court.
                     Establishes at least a minimum national standard- uniformity- which
                        produces efficiencies.
                Dissent- objects to judicial activism, objects to the federalism implications
                of the decision. Is this fundamental to our system of justice? This


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                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
       evidence is probative- nothing here infringes on her trial rights- only on
       previously existing rights against search and seizure. Perhaps the too
       should not be mixed. The remedy for the invasion could be somewhere
       else. In Mapp the search for truth is trumped by other values. Contrasts
       the exclusion of evidence gained by violation of the 5th amendment to that
       of the 4th amendment. Right not to be forced to incriminate oneself is
       focused on the trial itself- procedural right where as the 4th amendment
       violation occurs somewhere else.

The Threshold question: Where does the 4th amendment apply?
What does it protect?

      Before Katz the ct. answered that question based on common law
       property interests- trespass on real property

       Katz v. United States:  wants to exclude recording of his end of a phone
       conversation about betting taped by a bug on the outside of a telephone
       booth.  says that b/c the bug didn’t enter the space it didn’t violate the
       4th amendment.
           o Ct. says that physical penetration is no longer the issue.
              Harlan’s concurrence becomes the prominent view-
           o 2 prong test
                   o  exhibits the subjective expectation of privacy
                   o society agrees that this expectation is reasonable
           o Phone booth with glass doors- protected from lip readers? Is
              closing of door only expectation of auditory privacy or visual
              privacy, or both?
           o What he knowingly exposes to the public is not protected- even if it
              is in his home or office- What if the term is purposely?- It would
              make the right broader- intent would be necessary.
           Black’s dissent- thinks that the 4th amendment is limited to
           physical/tangible things- can’t search a conversation- and the framers
           knew about eavesdropping and chose not to include any language
           about that practice. Compare with Justice Douglas’ dissent in White-
           evesdropping is gunpowder to electronic surveillance’s nuclear bomb.

Search- privacy interest:

False Friends: (n/s)
          United States v. White: police informant wearing a wire- transmitting
          over radio in real time to agents outside in the van. Consent from one
          party for the government surveillance.
             o No expectation of privacy- assumption of the risk of a false
                 friend.




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                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
              Harlan’s dissent- says that there is a difference between an
          informant who spills latter and a contemporaneous broadcast. Why-
          wouldn’t a recording merely be more accurate?

Pen Register: (n/s)
        Smith v. Maryland- police used a pen register to record the numbers
        dialed from the defendant’s phone- and then went to the house of the
        person called with a warrant based on the number- where they found
        the page of the telephone book with the person called which had been
        turned down to mark it. Wanted to strike the number and the page b/c
        of the fruits doctrine-
            o ct. said that there was no expectation of privacy.

Luggage Squeazing: (search)
        Bond v. United States: Grayhound Bus luggage squeezing. Airport
        searches are subject to an exception for administrative searches.
        There is also a border search exception. It doesn’t apply here b/c this
        was a domestic bus trip.
           o Argument on one side is that luggage is always handled and
              touched by other passengers so it is open to public scrutiny.
                  o Similar to the visual search public view approach.
           o Argument on the other (maj.) is that tactile searching in more
              invasive.
           o Squeezing, but not handling, is a search

Thermal Imaging: (search)

          Kyllo v. United States: Thermal imaging. Is a 4th amendment search.
              o High degree of technology limited in availability- not in wide use
                 so a reasonable expectation of privacy is reasonable.
              o The focus of the search is a home- Ct. always gives the home
                 special protection. (distinguishes between this home and the
                 Dow Chemical Plant)
              o Undermines usefulness of thermal imaging of the home- might
                 as well get the warrant made out to physically search the house.
              o 5-4 decision- ironically Scalia writes the majority opinion and
                 Stephens and the other liberal judges dissent.

Tracking device
   o used outside home: (n/s)

          US v. Knotts: Beeper in can used to track/follow ’s movements along
          public roads
          o did not constitute a Fourth Amendment search b/c could have been
             observed from outside.
          o No reasonable expectation of privacy along public roads



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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
          o Not home, person, papers or effects; not w/in curtilage.

   o Used to monitor movements inside the home: (search)

          United States v. Karo: Beeper in can used to track/follow can of either
          with ’s. Some of monitoring was while can/’s were inside home
              o Ct. found that the monitoring of the tracking device in the home
                 was a search

Open Fields: (n/s)

          Hester v. United States: “open fields” doctrine. Cited in Oliver. Police
          could enter and search a field without a warrant.

          Oliver v. US Police went through a locked gate, past a no
          trespassing sign, against the shouted protest of someone down a road,
          passed a camper and barn to a field where they found a field on MJ.
              o warrantless police entry into open, private property does
                  not violate the Fourth Amendment.
              o Field is not a person, house, paper, or effect
              o Effects- term encompasses less than property
              o Societal understanding of what deserves scrupulous protection
                  doesn’t include fields
              o No privacy in the out-of-doors,
                     o except in the curtilage of the home.
              o Open fields is a bright line rule- no amount of signs, fences,
                  seclusion, etc. change the rule.
                     o Because to hard for police to determine
          Dissent argues that p, h, p and e is not an exclusive list, that property
          rights and privacy rights are not synonymous, but that property rights
          should not be discounted. Suggest that rule should be test of nature of
          space and use to which space can be put and the manifestation of the
          privacy interest in the space by the person claiming a privacy interest.

Aerial Surveillance: (n/s)

          CA v. Ciraolo: police overflight of a fenced backyard discovered and
          photographed ’s MJ crop growing.
             o The use of a plane by police to fly in public airspace and
                observe activities within an individual’s fenced-in yard
                does not violate the Fourth Amendment.
             o Ct. said that the  met the subjective part of the test by the
                use/presence of a 10’ fence
             o Ct. found that the 2nd prong of the test was not met because the
                yard could still be observed so the expectation of privacy was
                not reasonable.


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                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
                  o Could look over fence from a double-decker bus
             o Fact that the area in the fence was within the curtilage of the
               ’s home was not dispositive- does not itself bar all police
               observation

          FL v. Riley: surveillance from a police helicopter 400 ft above ’s
          curtilage. Police observed a partially covered greenhouse- and MJ
             o Ct. holds that surveillance of partially covered greenhouse was
                  not a search.
             o Helicopter was flying at a legal altitude
             o Dicta suggested limitations on aerial surveillance- if
                     o It interfered with normal use of the space
                     o There was undue noise, dust, wind or threat of injury
                             No physical intrusion. (flashback to Pre-Katz)
                     o intimate details connected with the use of the home and
                         curtilage were revealed
          Concurrence and dissent argued that the relevant question was not
          where the police had a right to be, but instead – at which altitudes
          members of the general public flew over with sufficient regularity to
          make the ’s expectation of privacy unreasonable

          Dow Chemical v. US: EPA agents photographed an outdoor industrial
          complex from altitudes of 12,000, 3, 000 and 12,000 ft. with “a
          standard floor mounted precision aerial mapping camera”.
             o Aerial photography from high altitude with a mapping
                camera permitted
             o Ct. said area photographed was more like an open field than an
                “industrial curtilage.”
             o Camera not a unique sensory devise- doesn’t penetrate walls or
                listen to conversations
             o Mere fact that human vision is enhanced not enough to
                raise constitutional problems
             o Dicta says that use of highly sophisticated surveillance
                equipment not generally available to the public- like
                satellite imaging- might require a warrant

Garbage: (n/s)
        CA v. Greenwood: police searched plastic bags full of trash left at the
        curb in front of a house for garbage pickup.
            o Search of garbage permitted.
            o Objective prong of test not met because garbage was readily
               available to scavengers and snoops.
            o ’s were giving trash to a third party
                   o cites telephone #’s case (Smith v. MD)




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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002

Seizure- possessory interest:

Placement of a tracking device: (n/s)

          United States v. Karo: Beeper placed inside a can of ether by the DEA,
          with the consent of a seller, before the customer picked it up.
              o Definition of Seizure- “meaningful interference with an
                 individual’s possesory interests in that property.”
              o Ct. says that it is not a seizure- b/c it did not interfere with the
                 ’s possessory interest. Function not effected.
          Dissent says that ownership entails the right to exclude the whole
          world from the property.

Threshold question of what is a search and what is a seizure? Overview

   o While Katz loosed the 4th amendment from its textual moorings it’s
     general implication is sort of overturned- the scope of the 4th
     amendment is not expanded, but narrowed.
   o “false friends,” “open fields,” and the “assumption of risk” principles-
     anytime you expose yourself to the world in any small way you are
     exposed to government interference. Trend is somewhat reversed in
     Kyllo.
   o No recognition of limited exposure- e.g. to a bank, or to the garbage
     men, to the phone company, etc.
   o some circularity to the definition of what is reasonable. Legal rules
     are influence by society’s expectations, but society’s expectations are
     influenced by legal rules.
   o Technology is a tricky part of the equation- as it gets more readily
     available to the public the sphere of what is private shrinks.
   o To what extent is the expectation of privacy related to the legality or
     illegality of the behavior? See Place case (drug sniffing dogs)-holding that
     there is no 4th amendment interest in purely illegal activities.

Analytically- determine whether there is a 4th Amendment interest before
looking at probable cause and the other demands of the Amendment.



Probable Cause:

What is the standard for probable cause? More reasonable than not? Sliding
scale for seriousness of offense- especially between past criminal conduct and
contemporaneous or future endangerment of life? (what is the standard- is it still
undefined?)




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                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002
   Probable cause and informant’s tips:

            Aguilar v. TX: search warrant issued upon an affidavit of the police
            who swore only that they had “received reliable information from a
            credible person and do belive…” that narcotics were being stored on
            the premises.
               o Two pronged test for probable cause based on an informants tip
                   o Basis of knowledge (1st or 2nd hand)
                   o Veracity
               o Reliability cannot be proved on the ground of a mere assertion
                   by the affiant that the informant is reliable

            Spenelli v. United States: gambling activities. Warrant based on an
            affidavit from the police who had been following the  for several days-
            watching him go into St. Louis to an apartment with two telephones
            that he used. They also cited a confidential, credible informant who
Move to a   claimed that the man was a known bookie.
balancing       o Ct. said that Magistrate didn’t ask the right kind of questions.
test
                    He should have applied
                o Aguilar’s two pronged test-
                         Credibility of informant
                                     Who is the source of this tip? Is the informant
                                       credible? Reliable?
                         Source of the informant’s information
                o Here there is no information about why the informant is reliable-
                    only that the FBI says so.
                o There is also no information about how the informant came by
                    the information (was he a customer, competitor, nosey
                    neighbor, etc.)
                o Some presumption of credibility given to police officers, but
                o the magistrate should still ask questions to determine if the
                    police officer is acting on more than a hunch.
            Concurrence- Cites Draper v. US in which the informant provided very
            detailed information- detail of tip seems to verify itself- more reliable
            than a less detailed tip. Informant said that the  would be getting off
            the train dressed in a certain manner and acting a certain way- the
            police used this info to corroborate the information and in fact the  did
            get off the train in this manner. White says that ct. carves out a special
            exception for Draper- reading it very narrowly so that it does not apply
            in this case.

            Illinois v. Gates: an anonymous letter with a fairly detailed description
            of how some drug suppliers were transporting drugs was sent to the
            police- ID’d the ’s by name. The police found the couple- who lived in
            the described place and that their travel plans matched the description-



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                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
         the ’s flew to FL, stayed one night, and started driving back home-
         innocent behavior in itself- but with the tip = probable cause.
                 Totality of the circumstances-
                        o both prongs of the Spinelli test are still
                           significant,
                        o but should be taken together-
                                a weakness in one can be compensated for
                                   by strength in the other.
                 Gives much more latitude to the magistrate.
                 Ct. Characterizes the totality of the circumstances as fluid,
                    common sense, balancing test as opposed to the Spinelli
                    test which it describes as rigid and hyper technical.

Warrants:

Importance of warrants in general:
        Johnson v. United States: (not current 4th Amendment law) Tip from a
        known drug user confidential informant that some folks were smoking
        opium in a hotel. Police go to check it out- smell opium in the hall.
        Knock on the door and ask to come in and talk. Smell the odor
        stronger, the  denied the smell and the police then arrested her.
        They then searched the room incident to the arrest. They found opium
        and a pipe.  wants to exclude that evidence.
            o Ct. says that there was no consent to the entry or the search b/c
               it was entry under color of office.
            o  argue delay could be a problem- ct. dismisses this out of
               hand- ignores exigent circumstances.
            o Why big deal about the warrant- there was probable cause and
               they could have gotten one but they didn’t.
            o The ct. says that what is important is the disinterested
               magistrate who can look at the facts and make a decision
               not colored by the competition of pursuit. Also- reminds
               police officers of the 4th Amendment.
            o Warrants must have
                   o Probable cause
                   o Oath or affirmation options in the 4th amendment
                   o Particular description of where is being searched,
                      what is being looked for, and/or who is being
                      arrested.

Arrest Warrants:
    On the Street/in Public- (warrant not required)

         United States v. Watson: Arrest made by USPS over some stolen
         credit cards. Search of car was incident to arrest- so the question is



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                                                           Criminal Justice I Outline
                                                                   Professor Green
                                                                        Spring 2002
       whether the arrest was legal. Reliable informant- probable cause, but
       no warrant. Arrest was outside a restaurant- public place
           o no distinction between inside and outside public places
           o Reasonableness determined by congress
                     o USPS had backing in a statute, which allowed them to
                        make warrantless arrests.
                     o Also- many states and other federal statutes allowed this.
           o Common law also allowed warrantless arrests for
                misdemeanors and felonies committed in the presence of a
                peace officer and for felonies not committed in the his presence
                if there was reasonable grounds to make the arrest.
           o However, if you need a warrant for a search or seizure- why not
                for an arrest- a seizure of a person- which is much more
                intrusive.
           o Warrant not required
           o Burden on the police is not that great- can still make an arrest in
                exigent circumstances. FBI always uses warrants in this way.
       Marshall’s dissent- does not give much weight to the majority’s
       historical evidence- points out that all felonies at common law were
       very serious capital crimes. Also says that just because it is done a
       lot- all the statutes and past practice- does not make something right-
       “no substitute for a more reasoned analysis.”

       Gerstien Hearing: hearing in which the determination of probable
       cause is made after the fact of the arrest- must be done promptly after
       the arrest. How promptly? With in 48 hours after the arrest even over
       the weekend absent a bona fide emergency or other “extraordinary
       circumstance.

   At suspect’s home: (warrant required- absent an exception)

       Payton v. New York: Joint cases-
           Payton: police went to Payton’s apartment intending to arrest him
       without a warrant. Lights and music were on inside but no one
       answered the door. The police then broke in- searched- and seized a
       gun, did not find Payton.
           Riddick: the police came to his home about noon and knocked on
       the door- Riddick’s young son opened the door- the police saw Riddick
       in bed. The entered and searched a dresser before allowing Riddick to
       get dressed- they found drugs.
           o Need a warrant to arrest in a home to protect the home
              from intrusion and the search incident to an arrest.
           o Evidence from a search incident to a warrentless arrest is
              excluded
           o however the suspect is not released. (and confession in
              custody after a warrantless arrest may be admissible.



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                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
             o With a warrant to arrest comes the limited authority to enter
               the house if there is reason to believe that the suspect is
               inside.

      At 3rd party’s home: (even with an arrest warrant, need a search
       warrant)

          Steagald v. US: Valid warrant to arrest Lyons on drug charges, reliable
          info that he could be found at ’s house, officer’s entered house
          without consent and did not find Lyons, but did find ’s coke.
                  Cannot enter home of a third party to search for a person,
                     even with an arrest warrant for that person.
                  Need a search warrant
                  Arrest warrants and search warrants two different things and
                     interests protected differ- especially where there are two
                     different peoples interests being protected.


The warrant and reasonableness clauses: how do the two interact?
Warren ct. started with the warrant- emphasizing it
But on the way to the Rehnquist court the emphasis has shifted to the
reasonableness clause.

Nature of a valid search warrant:

          Lo Ji Sales v. NY: On finding that an “adult” bookstore was violating
          obscenity laws police officer sought a search warrant. Warrant allowed
          search for all the copies of the videos that the officer had seen there
          and any other similar materials. Magistrate accompanied police to
          execute the warrant viewed pornography videos for hours on end to
          determine if they indeed were pornography. After Magistrate
          determined what was obscene the items were seized and later
          inventoried and added to the search warrant.
             o A warrant may not support a general search for items not
                 particularly described in the warrant.
             o Magistrate abandoned objective judicial role when he
                 accompanied police so warrant was invalid.

Execution of a warrant:

Knock and announce:
        Wilson v. Arkansas:
           o Knock and announce is generally a requirement for
              executing warrants
           o Part of reasonableness inquiry under the 4th amendment
           o Recognized that there were exceptions


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                                                               Criminal Justice I Outline
                                                                       Professor Green
                                                                            Spring 2002
                    Threat of physical violence
                    Pursuit of escaped prisoner into his dwelling
                    When evidence likely to be destroyed if notice is given

          Richards v. WI: no knock entry to a hotel room on a drug search
          warrant. Police explicitly asked for a no-knock pre-approval but the
          magistrate explicitly deleted those portions of the warrant. Police did
          knock on door, but lead man was dressed in maintenance man’s
          uniform and identified himself as maintenance.  opened the door a
          crack- with the chain still on. At least one officer was in uniform, and on
           seeing him  shut the door. Officers then kicked in the door. 
          claimed that they did not “knock and announce” before forcing entry.
              o Ct held that police conduct was ok
              o To justify a no-knock entry when executing a search warrant,
                 the police must have a reasonable suspicion that knocking
                 and announcing their presence under the circumstances
                 would be
                  dangerous
                  or futile
                  or that it would inhibit the effective investigation of crime.
              o Ct. did not approve of the state supreme ct.’s bright line rule that
                 all drug searches were per se exempt from the knock and
                 announce rule

Scope of search/mistake:
         MD v. Garrison: Warrant was for the 3rd floor apartment, 3rd floor was
         actually 2 apartments. Searched the wrong apartment but thought they
         were searching the right apartment. Didn’t realize mistake ‘till after they
         found contraband. Once they realized they did stop the search but still
         sought to prosecute  on the contraband that they had already found
            o Information that becomes available to police immediately
                before or during the execution of a warrant may require
                them to cease or narrow their search
            o Warrant was valid b/c it should be assessed on what the officers
                disclosed, had the duty to discover and disclose to the issuing
                magistrate. Not looked at retrospectively.
            o Standard is whether conduct is reasonable at time of
                execution of warrant.
                        Allows for honest mistakes

          Ybarra v. Illinois: police had a warrant to search a tavern and “greg”
          the bartender, but they also search other persons present.
              Ct. says that this is impermissible- not reasonable to search
                 others in this case-
                     o no evidence that they were with “greg.”
              Really a Terry case


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                                                            Criminal Justice I Outline
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                                                                         Spring 2002

Detention of persons in order to conduct search:
         MI v. Summers: officers detained people in a residence while it was
         searched
              Police can detain occupants of a place being searched with a
                warrant
              to prevent the disturbance of evidence.

         IL v. Macarthur: Police held the occupant of a place, preventing him
         from entering his house, while waiting for a warrant to search- to
         prevent disturbance of evidence-
              ct. says that this is OK- not a custodial seizure, just a slight
                imposition on his liberty.
              Limited in that
                 No search of the person
                 Not excessively long (2 hrs)
                 Must reasonable to believe that he would destroy evidence.
         Green’s comments: Would this have been exigent circumstance- could
         they have searched without a warrant? Probably not. No danger, no
         fleeing, etc. Destruction of evidence is problematic as a basis for the
         exigency exception. Might also have mattered that the  was outside
         his home when the police detained him- they may not have been able
         to order him out.

Exigent Circumstances Exception:

         Warren v. Hayden:  allegedly commits a robbery- cab drivers chase
         him and call police- see him enter his home- police knock on the door
         and are let in by the ’s wife. Police search the house- find the man in
         his bed room- find weapons (gun in flush tank) and ammunition, and
         the money, find clothes matching the description in the washer. Officer
         who found the clothes claimed to be looking for the man or the money.
              set precedent that police could search and seize not only
                contraband, the fruits of the crime, and instrumentalities in the
                commission of the offense, but also “mere evidence”- things
                like the clothes.
              Ct. says the search was OK b/c of exigent circumstance-
                police allowed to search for persons or weapons.
              Fleeing felon and possible dangerous weapons.
              One problem in this case is that the one officer said that he was
                searching for the “man or the money.”
              Another is the Hot pursuit requirement difficulty - no immediate
                or continuous pursuit there – police didn’t see crime, cabbies did
                the chasing.




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Welsh v. Wisconsin: DWI case. Car driven erratically ends up in a
ditch. Police called by a witness still at the scene. Driver had walked
off. Police got address from the registration and noting that it was
within walking distance. Did not get a warrant and went over there and
arrested him. DWI a misdemeanor in WI.
     Starts with the warrant requirement presumption that the
        arrest is unreasonable which must be overcome by the police.
     In evaluating reasonableness look to
           o State interest in the crime
                    Says that state has less interest in minor offenses.
           o Severity of offense
                    Here 1st offense was a non-criminal traffic violation
                      and 2nd was a misdemeanor
           o Location of the arrest
                    Here in a home- which deserves a lot of protection
           o Need to preserve evidence
                    Cut in favor of exigency here
                    Not enough
           o Hot pursuit- immediate or continuous pursuit of the
               suspect from the scene of the crime.
                    Here there was none
           o Threat to the public safety
                    None because the drunk driver wan no where near
                      his car.
Dissent- intrusiveness of the search is the same regardless of the
severity of the offense. State legislature and supreme ct. see
significant enough interest in the DWI arrest.


Vale v. LA: police arrested  on the front steps of his house and then
searched a home without a warrant and under protest. Had two arrest
warrants- Drug charges. There was no one in the house,
   o but the police claimed protection of evidence anyway
          o said drugs easy to destroy hide
   o Problem is that there was no one in the house to do so
   o ct. said no- need a warrant- no exigency.
          o Knew address and had two arrest warrants- could have
              gotten a search warrant too.

Mincey v. AR: police did a 4-day search of a murder scene without a
warrant. Had removed victims from the scene
   o OK to do a quick search for victims or killer
   o Can seize any evidence in plain view during these legitimate
       activities.
   o But search must be strictly circumscribed to the exigencies


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                                                          Criminal Justice I Outline
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                                                                       Spring 2002
            o No general exception for a murder scene.

        Minn. v. Olson: lone gunman robbed a gas station and killed the
        manager. Police officer heard report on the radio and drove
        immediately to the house of the man he suspected. Arrived at the
        same time as another car which took evasive action. 2 men in the
        other car fled on foot and one was shortly founded inside his home, the
        other escaped. Inside the abandoned car police found evidence that
        the  was involved in the crime- also the murder weapon and a bag of
        money- learned later that  had confessed to the crime and that he
        was staying temporarily at a friends residence. The day after the crime
        the police arrived at that friend’s residence and not finding anyone
        home asked a neighbor to call when the  arrived. She called that
        afternoon, police returned, surrounded the building, called the
        apartment and learned that the  was there and apparently refused to
        come out. Stormed the apartment with guns drawn and arrested 
        without a warrant. (what was the outcome of this case?)
            o Said that warrantless intrusion may be justified by
                 Hot pursuit of a fleeing felon
                 Imminent destruction of evidence
                 Need to prevent a suspect’s escape
                 Risk of danger to the police or to the public
                        o In assessing the risk of danger the gravity of the
                           crime and the likelihood that the suspect is armed
                           should be considered
            o In the absence of hot pursuit there must be probable cause
               to believe that one of the others is true.

Search Incident to Arrest Exception:
        Chimel v. CA: Warrant to arrest a guy who robbed a coin shop. Police
        go to the house, id themselves, wife let them in, waited for the man to
        get home, arrested him, asked if they could look around, man said no-
        they did it anyway- claiming search incident to arrest. Searched all
        over looking for coins- very small and so the search could have been
        very thorough had they gotten a warrant.
            Searches incident to arrest do not encompass a whole
               house-
            Limitation- reasonable to search the person himself and his
               grab area (area right around him).
                    o Ct here says not in closed drawers or other closed or
                       concealed areas
            Must do the search incident to the arrest- geographically
               and temporally.
            Can search for weapons and for evidence, which could be
               destroyed.



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                                                    Criminal Justice I Outline
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                                                                 Spring 2002
      What about the wife? She could have been armed and certainly
       could have gotten rid of the coins. Ct. didn’t answer that.

US v. Robinson- Reason to believe that  was driving w/out a license-
stopped him and arrested him- patted him down, found a weird shaped
thing in his shirt pocket, took it out- it was a crumpled cigarette
package that didn’t feel like it had cigarettes in it- opened it and found
gelatin pills of heroin. Custody and search was according to police
procedure.
     Lower ct. that Terry rule is applied to a search incident to arrest.
            o Terry search can only be a limited pat down- just to
                protect safety of the officer.
            o Since this was a minor, non-violent arrest there was no
                need for the search of this type.
     S. Ct. reverses- says that after a custodial arrest the officers
        can search the person and grab area- regardless of the
        circumstances- bright line rule
            o 4 years after Chimel- 4 new justices- Burgher ct. takes a
                new approach.
            o Exception to the warrant requirement and per se
                reasonable
     Ct. cites increased danger to police of a custodial arrest above
        that in a Terry stop
     issue of pretext raised and dismissed in this case- ct. citing that
        arrest was not a departure from established police department
        practice
     handcuffs don’t limit the grab area. .
Dissent: argues for a case-by case adjudication- which here would
lead to a determination that the search- beyond a terry pat down- was
unreasonable because there was no evidence to be destroyed in the
crime arrest based on, because the officer displayed no subjective fear
of the , there was no reason to believe that  was dangerous. Search
should have stopped before the packet, which admittedly was not
reasonably a weapon, was removed from the jacket.

Whren v. US: (1996) Plainclothes officers in an unmarked car in a high
crime area passed a truck with temporary plates and young occupants
waiting at a stop sign. Truck stayed at stop sign for an unusually long
time. Driver looked into the lap of the passenger. Then turned without
signaling and sped off. Police stopped the car and immediately
observed to backs of crack in the ’s hands. Arrests made and rest of
car searched, turning up more drugs.  challenged stop as an illegal
seizure.
     Traffic stop permissible as long as a reasonable officer in
       the same circumstances could have stopped the car for a
       suspected traffic violation.


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                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
             Officer’s motive irrelevant
             Pretext and DWB issues raised and dismissed as an Equal
              Protection problem not a 4th amendment one.
             Seizure with probable cause different then one without
             Was strange that plainclothes officers made the stop- normally
              don’t make traffic stops
              argued that the rule should be “would a reasonable officer in
              the same circumstances have made the stop for the suspected
              traffic violation”
             Scalia maj. opinion says only use individual case by case
              balancing in cases of search or seizure conducted in an
              extraordinary manner- not here

       NY v. Belton: (1981) Speeding stop, discovered that none of the 4 men
       in vehicle owned or were related to the owner of the vehicle. Smelled
       MJ. Saw an envelope on the floor of the car marked “Supergold.”
       Placed men under arrest for possession. Searched the passenger
       compartment and found a jacket belonging to . Unzipped a pocket
       and found coke.
            When police make a lawful custodial arrest of the occupant of
               an automobile, they may, as a contemporaneous incident of that
               arrest, search the passenger compartment of the automobile
                   o including any containers- open or closed even if too small
                       to hold weapon or evidence of crime alleged.
                   o Can’t search trunk.
            Need a bright line rule to assist police
       Dissent (Brennan) argues that the bright line rule established doesn’t
       reflect appropriate policy justifications- safety of officers, protection of
       evidence. Efficiency of law enforcement not enough to justify such
       rule. Separate dissent (White) argues that the container part of the
       holding goes too far.

Automobile Exception-
       Carroll v. US (1925)- known bootleggers stopped on a road known to
       be used by bootleggers, suspects were not arrested, car was
       searched.
           Ct. recognized an exception because of the mobility of a car,
              ship, boat, etc.
               Probable cause
               Mobility

       Chambers v. Maroney: (1970)- robbery of a gas station, suspects car
       stopped, occupants arrested, search not incident to arrest b/c the
       search was not made at the time or place of the arrest.
           Ct. follows Carroll-


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                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
                    o car mobile and so if you don’t do the search now it could
                        go away-
                    o suspect alerted
               problem with this argument is that the car has been
                impounded- wouldn’t it be less intrusive to seize the car and
                hold it until you get a warrant to search
               Ct. sees no difference in those two actions so no need to
                impose the warrant.
               If you have Carroll grounds to search you can seize and
                search later.
                    o Probable cause
                    o Mobility

         Coolidge v. NH (1971)- brutal murder of a 14 year old girl, invalid
         warrant b/c signed by the AG who was supervising the investigation
         and prosecuted the case. Seized the car in the driveway and searched
         it 3 times over at least a year.
               Plurality opinion
               Some notion that b/c the car was in the driveway it enjoys some
                 of the protections of home and curtilage.
               Distinguished from Chambers on the facts- less exigency-  had
                 already been alerted, cooperative suspect, car in the driveway.
                 But hard to reconcile.
               Probably should be read narrowly


         CA v. Carney (1985)- mobile home parked in public place- licensed to
         operate on the streets. MJ for sex operation. Police had probable
         cause to enter- drugs in plain view there.
              Ct. recognizes that there is some similarity with a home, but not
                enough b/c in a place that suggested it was a vehicle.
              Focus in the case is shifted from mobility to lower
                expectation of privacy in a vehicle.
                    o Sounds like Katz- now reasonable expectation is being
                       taken over the threshold to effect the substance of a 4th
                       amendment claim.
         Dissent says that since this is a mobile home the expectation of
         privacy is greater and that since the automobile exception is an
         exception it should be construed narrowly.

Search incident to citation?

         Knowles v. Iowa: (1998) stop for speeding, state law authorized
         custodial arrest for traffic violations, but officer here merely wrote a
         ticket. No reason to believe there was weapon or evidence in the car.
         Conducted a full search as expressly permitted by state law.


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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
               Illegal to search interior of car after ticket
               Significantly less safety of officer consideration as in a custodial
                arrest
                    o Met by being able to order suspect out of the car.
               No need to preserve evidence

Automobile Inventory Search:

         South Dakota v. Opperman: impounded a car for getting ticked twice
         in a prohibited zone. Police searched the car according to a standard
         operating practice and using a standard form upon impounding it-
              Ct. says that this is another exception- warrantless,
                suspicionless search.
              Reasons for allowing inventory searches
                    o To protect property interests
                    o To protect the police from false property interest claims
                    o To protect the public from some sort of danger.

         Florida v. Wells: officers opened a locked suitcase discovered during
         inventory search. Not part of standard procedures to do an inventory
         search. Department had no policy on this at all.
                    o Ct. said if not part of a police policy- not ok.
                    o Dicta said that an all opened or a none opened policy
                      would be ok
                    o Also said that a policy which allowed discretion would be
                      ok too

Arrest Inventory Search:

         Illinois v. Lafayette: (1983) routine search of a shoulder bag of a man
         who had been arrested- to far away temporally to be a search incident-
         no probable cause.
               Allowed
                   To protect property interests
                   To protect police


Cars and Containers:

         United States v. Chadwick: Footlocker on a train leaking talcum
         powder- knew that that was often used to cover MJ smell. Authorities
         let him go but called ahead to his destination. DEA agents met him at
         the destination and had a dog smell the luggage- dog sounded an
         alert- at this point they probably have probable cause. But they waited
         until the footlocker was loaded into the trunk of a car but the lid was not
         closed. At that point the DEA agents arrested the men. The trunk was


                                        20
                                                   Criminal Justice I Outline
                                                           Professor Green
                                                                Spring 2002
taken to the federal building. An hour after the arrest the footlocker
was searched. No consent, no warrant.
    Suitcase is mobile like a vehicle- but primary purpose is to store
       not transport
    Comes with a higher expectation of privacy.
           o or not- especially not now when airport searches are so
              pervasive
    Ct. says that this search not allowed.

Arkansas v. Sanders- (Overruled by Acevedo) police get tipped about
a suitcase of MJ arriving at the airport, observe airport and watch  put
suitcase in truck of a cab. Stopped cab a few blocks away, opened
trunk and suitcase. All without warrant. Had probable cause before
suitcase was put in car.
     Ct. says that this search not ok.
     Suitcase was not coincidentally in a car
     probable cause attached to container, not the car
     Dicta: some containers can be opened without a warrant- a gun
       case of burglar tools contents can be inferred from their outward
       appearance so no expectation of privacy.

US v. Ross- warrantless search of a car- under suspicion of dealing
drugs- found a paper bag, opened it and found heroin.
    Ct. says this search ok.
    Bag was coincidentally in the car
    Can search any container big enough to hold evidence looking
      for
          o Included trunks and glove compartments in the list.
    Fact that it was a paper bag not an expensive briefcase is
      irrelevant because all deserve protection

Acevedo- police get tip from DEA in Hawaii of package of MJ intended
to be sent through FedEx, included name and address on package.
Told agent to send package to him he would deliver it to a fed ex office
and arrest whoever came to pick it up. Clearly had probable cause.
Package picked up and brought it to an apartment- police survailed the
scene and two men came out at separate times with packages, when
they got in their cars they were stopped and searched.  placed his
package in the trunk.
     Ct. says that the police can search the whole car- with in the
       limits of the size of the package- (like a warrant search)-
     overrules Sanders.
     Problem with Sanders rule- means that if police have more info
       they have less authority to search, and less info more authority
       to search. E.g. if you know that the drugs are in a suitcase you



                              21
                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
                can’t search, but if you just have probable cause to believe that
                the car has drugs somewhere- you can search the whole car.
               Ct. says that this may limit the size and intrusiveness of search.
                B/c before the police had an interest in framing their search like
                a Ross search- which would have to include the whole car-
               Search may be limited to the pkg and places it could fit.
                Don’t have to search rest of car.
               Ct. assumes that b/c there was probable cause to seize it the
                warrant would be forth coming- how can this be assumed-
                makes the warrant requirement kind of meaningless.
               How much force is now left in Chadwick- why should a pkg have
                less protection in the car then on a street.

         WY v. Houghton: (1999) police stop a car lawfully, have probable
         cause to search it, but search a purse found in the back seat that they
         know does not belong to the driver/owner.
             Ct. says OK to search containers belonging to passengers.
             But they can’t search the persons of the passengers.
             Search of belongings less intrusive than search of persons
             Government interest in effective law enforcement justifies a
               search of all car containers that might hold drugs and not just
               those belonging to the driver.

Plain view doctrine: applies to seizures not searches
         Horton v. CA: Investigation of a theft at a coin club. Police seized
         items that were not listed on the warrant. Search was ostensibly for 3
         specifically described rings. Police seized guns, stun-gun, clothing,
         etc.  claimed that his rights had been violated b/c the seizures went
         beyond the warrant.
             o Ct. says that this is an issue of property and privacy interests-
                the privacy interest gone when the police had the authority to be
                there
             o The search is described as advertent b/c the police expected to
                find the weapons.
             o Ct. rejects the idea that the subjective state of the officers
                should matter.
             o No inadvertence requirement
             o Must have
                    o Immediately apparent incriminating nature-
                    o Lawful right of access
                    o Seen in plain view from a lawful vantage point-
                            lawful vantage point comes from a warrant, the
                              exceptions to the warrant requirement, or things
                              outside the 4th amendment (open fields, shade-
                              less window, etc.)


                                       22
                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
             Dissent argues that both privacy and possessory interests are both
             important and should both be protected by the warrant requirement.
             Argue that plain view should have an inadvertence requirement-
             why not just get a warrant.

          Arizona v. Hicks: Bullet shot through the floor/celing, police search
          apartment above to look for shooter. Found weapons and a stocking
          cap mask. Also see expensive stereo equipment which they consider
          out of place in the “squalid” apartment. Move a turntable to locate a
          serial number. Call in the number and determine that the stuff is
          stolen.
              o Physically moving a suspicious object in an individual’s home to
                  determine if it is incriminating evidence, without probable
                  cause, during an unrelated warrantless search, violates the
                  Fourth Amendment.
              o Use of the serial number not a search
              o Moving the turntable to look for it was.
              o Search would have been ok if the plain view doctrine had
                  already been applicable- including probable cause to believe
                  that the item was of an incriminating nature.
                      o Educated observation- ok, as long as it can be
                         articulated (where did this come from?)
              o Illegality must be readily apparent without the search
              o No middle ground minimally intrusive search recognized
          Dissent: Powell- argues that there is no meaningful distinction between
          looking at an object and reading a serial number and moving it a few
          inches. O’Connor- argues that there should be a minimal/cursory
          search exception allowed on the basis of reasonable suspicion.
          Prevents rummaging but allows reasonable access.

Plain touch exception-
         Dickerson- the suspect had an object in his pocket, police did a terry
         pat down, police officer felt the bag and claimed that he could ascertain
         that the bag contained cocaine. Ct. recognized that there could be a
         case where the plain touch doctrine would apply, but didn’t find one
         here.

No plain smell doctrine has ever been addressed by the supreme ct. Lower
courts have found one- still need lawful rt. of access.

Consent Search:
          Schneckloth v. Bustamonte: traffic stop (headlight), found out that
          driver had no license, ask men to step out of the car, (don’t want to do
          a custodial arrest- minor traffic offense, would have a smaller search




                                        23
                                                   Criminal Justice I Outline
                                                           Professor Green
                                                                Spring 2002
scope). Ask to search the car. Alcala replied “Sure, go ahead.” Even
opened the trunk for them.
    o 9th Circuit overturned conviction because st. prosecutors failed
       to prove that the  knew he had the right to deny consent-
       maintain that the  must have known that he had a right and did
       not have to waive it.
    o CA ct. and S.Ct. decide that this one factor, knowledge of rt. to
       say no is not dispositive
    o ct. can look to the “totality of the circumstances”- including
       knowledge of right to refuse, also education, intelligence,
       etc. to determine whether the consent was voluntary.
    o holding limited to non-custodial consent
    o Ct. distinguishes this kind of situation from waiver of right to a
       jury trial, Miranda, etc.
           o big difference being that the ct. had already ruled that a
                third person can give consent to a search- unthinkable
                that a third party could waive your right to trial.
    o Ct. says that it would be too hard to prove knowledge-
    o why a Miranda type warning wouldn’t work.
           o Says that this would hamstring the police.
           o Says that custody is the difference- in many consent
                searches there is no custody, or even reasonable
                suspicion.
           o Says starts earlier and more informally.
           o Not the most convincing argument.
Dissent: Marshall- says that a simple statement shouldn’t be enough to
waive a constitutional right. Says we allow consent searches not
because they are useful, but because citizens get a choice and a lack
of coercion does not equal a choice. Need to know of options to know
of choice. Maj. has set it up so  must prove a negative (no coercion)
says that it is hard to prove a negative and that the burden should be
on the . Suggests ways to prove knowledge of choice- affirmative
demonstration at time of search, testimony under oath, previous
denials of consent, inference from prior education/training. Also, why
not a simple statement of rights- like Miranda- FBI does it.

US v. Watson: failure of police to inform a person of his fourth
amendment rights not controlling in case where  was in custody-
but on the street not in a police station.

Bumper v. N. Carolina: 4 white officers go to the rural house of an old
black widow. Told her that they had a warrant to search. She said “go
ahead.” At trial  did not rely on the warrant but instead claimed
consent.
   o search premised on a warrant cannot later be justified as a
       consent search.


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                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002

Lower courts have also ruled that searches premised on an exception
cannot be justified later as consent either.

3rd Party Consent-
actual authority

          United States v. Matlock: Police come to a house leased by ’s live-in
          girlfriend’s mother- where the  lives. The live in girlfriend gives the
          police consent to search the room she shared with the .  argues
          that she couldn’t give consent for him.
               o S.Ct. disagrees- says that the girlfriend had the common control
                   and authority over the home-
               o “mutual use of the property by persons generally having
                   joint access or control for most purposes, so that it is
                   reasonable to recognize that any of the co-habitants has
                   the right to permit the inspection in his own right and that
                   the others have assumed the risk that one of their number
                   might permit the common area to be searched.”
               o Two elements
                           3rd party has the authority to permit the search in his
                              or her own right.
                           2nd party has assumed the risk that the 3rd party will
                              give consent.
                                  o Assumption of the risk- similar to “false
                                     friends?”
                                  o Implicitly surrendering privacy- giving consent?
                                     Same thing?

Lower cts. have said that even if a co-habitant specifically tells the other person
that they are not giving authority to give consent that person can give consent.

Roommates cannot generally consent for non-common areas like the other
person’s bedroom.

Ownership- originally the ct. had looked to property law to determine if the person
can give valid consent- person had to have ownership interest- or to agency law-
person had to have at least implied agency to give permission.


Apparent authority

          Illinois v. Rodriguez: an ex- live in girlfriend gave the police authority to
          enter the apartment. Would have been reasonable for the police to
          believe that she had actual authority- she had a key, referred to it as



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                                                           Criminal Justice I Outline
                                                                   Professor Green
                                                                        Spring 2002
        “our” apartment, had stuff there, etc. Only found out later that she had
        moved out several weeks earlier and did not have actual authority.
            o Does the state have to prove that the person giving consent has
               the actual authority to give consent? Or is the reasonable belief
               that the person has the authority to give consent enough?
            o Ct. says reasonable belief is enough-
                   o relies on Maryland v. Garrison (unclear that a floor
                      divided into 2 apartments, police searched both, but only
                      had a warrant for one)
                   o and Hill v. California (Ct. upheld a search incident to
                      arrest, when the police arrested the wrong person).
        Dissent: Marshall tries hard to distinguish Garrison and Hill. How can
        consent from a person with no authority be valid- can’t give authority
        that you never had. Difference is that Marshall starts with the warrant
        requirement as key, Scalia starts with the reasonableness
        requirement- leads to two totally different analyses. Garrison-
        generally reasonable, Search incident to arrest- generally reasonable.
        Says that search here has no such foundation. Implies that third party
        consent is generally not reasonable. Scalia says that he thinks that
        Marshall believes that consent is not a reasonable search, but instead
        a non-search. Giving up a 4th amendment interest- see false
        friends/Katz/open fields. If you didn’t do this then you didn’t do this
        and the police cannot take apparent authority from another person.

Scope of Consent:

        Florida v. Jimeno: Consent to search a car, police told  that they
        were searching for drugs. Search not expressly limited by the .
        Police found a paper bag on the floor- police opened it and found coke
           o argued that his consent had not extended to the paper bag.
           o Ct. said- yeah right- what is being searched for defines the
               scope of the search and the burden is on the person giving
               consent to define the scope of the search.
           o How limited is a consent search? Must be express- or it is
               unlimited. Burden is on the person who gives consent.


The reasonableness standard:
        Terry v. Ohio: Police officer observes men who he thinks were casing a
        store in order to rob it, points to suspicious movements, etc, he had a
        lot of experience as a cop and had a reasonable suspicion. Police
        officer detains the men for a minute and pats them down- finding guns
        on two of the men. No arrest, no probable cause.
            o says that this was a violation of his 4th amendment rights-
            o Police try to argue that there was no search or seizure-


                                     26
                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
             o ct. rejects this argument. Says that there is a 4th amendment
                interest
             o but that the policemen’s action was reasonable.
             o Police must have a reasonable belief based on specific
                reasonable inferences drawn from the facts and in light of
                experience
             o Search limited in its scope and purpose-
                 only outside of clothing
                 to protect the safety of the police officer.
             o Police must be able to point to specific and articulable
                reasons for suspicion.
         Dissent: Douglas- there was a seizure and a search so there should be
         a probable cause requirement. Reasonable = probable cause. Police
         shouldn’t be given more power than a magistrate. If you want to do
         this need a constitutional amendment.

         MN v. Dickerson: Police patrolling in a dangerous area saw  leaving a
         crack house.  spotted the police car and made eye contact with the
         police and immediately stopped and went the other way. Officers
         decided to stop him on the basis of those facts. Conducted a pat down
         and did not find any weapons. Did find a small lump that the officer
         claimed to be able to identify by touch as a lump of crack. Then
         reached into pocket and pulled it out.
             o Plain touch doctrine? Ct leaves possibility open but doesn’t find
                 it here.
             o Terry search ends when no weapons are found.

Terry Stops v. De Facto Arrests:

         Dunaway v. NY: (1979)  picked up by police officers who did not have
         probable cause to justify an arrest.  taken into custody, but not told
         that he was under arrest, but would have been physically restrained
         had he tried to leave. Driven to police headquarters and placed in an
         interrogation room where after a Miranda waiver made statements and
         drew sketches that incriminated him.
             o Was definitely seized, and  conceded that there was no
                probable cause
             o  claimed that there was not an arrest so reasonable suspicion
                was enough.
             o Ct. says that even a brief stop like in Terry was a serious
                intrusion and that its rule should be kept narrow
             o Nothing to distinguish this stop from a traditional arrest, even if
                 calls it a custodial interrogation.
             o Ct. refuses to apply a balancing test saying that an exception
                here would swallow the probable cause rule



                                       27
                                                   Criminal Justice I Outline
                                                           Professor Green
                                                                Spring 2002
   o Ct. says that probable cause has extensive experience and so
       now clarity
   o Under the Fourth Amendment, a seizure and transport of a
       suspect against his will is sufficiently intrusive to require
       probable cause that the suspect has committed a crime
Dissent says that  voluntarily accompanied the police and that
voluntary questioning is not a seizure. Says that there must be
objective coercion to invalidate involuntariness.

FL v. Royer: (1983) Airport- police decided that  fit a drug carrier
profile. Paid cash for a one way ticket to Miami. Cops approached him
and asked for his ticket and ID. Discovered that he was traveling
under an assumed name. Told  that they suspected him of drug
trafficking and without returning his ticket or license asked him to go
with them to a small room off the concourse. Police got ’s luggage
and he consented to the search of it. Police found MJ. At no time until
the discovery of the MJ did police have probable cause to make an
arrest.
    o Ct. found reasonable suspicion and said a limited, Terry stop
        would have been ok.
    o However the kind of seizure of ’s person made here not a
        stop that can be made on reasonable suspicion.
    o  never told he was free to leave, police had his tickets so he
        really couldn’t leave- he was as a practical matter under arrest.
        Thus not a voluntary encounter
    o Transfer to small room off concourse not justified by reasons of
        safety or security here
    o Could have been momentarily delayed if the police had used a
        dog sniff
    o Because arrest was invalid, the consent to the search was
        too- fruits

US v. Sharpe: (1985) DEA agent spotted a suspicious camper
traveling with another car. Called in a state trooper for back up and
attempted to pull the two over. Driver of car stopped, camper didn’t.
Agent got driver of car’s info and attempted to contact the trooper who
had gone after the camper. Agent called for back up with the car driver
so that he could go to the camper. Did so as soon as he could. Driver
of camper was held for the 20 minutes that this took. Bales of MJ
found in the camper. Tr. ct. found this detention without probable
cause impermissible.
    o Ct. says not unreasonable detention.
    o “An investigative detention must be temporary and last no
        longer than is necessary to effectuate the purpose of the
        stop” (Royer)



                              28
                                                               Criminal Justice I Outline
                                                                       Professor Green
                                                                            Spring 2002
              o Standard is whether police diligently pursued their
                investigation.
              o Here they did.

Terry stops (seizures) v. non-seizure encounters:
Terry- Footnote 16 “in some way restrain the liberty of a citizen”
Mendenhall- “Free to leave” .

          US v. Mendenhall: (1980) Airport-  appeared to two DEA agents to fit
          the drug courier profile. Agents approached her and asked to see her
          ticket and ID. Found that she was traveling under an assumed name.
          Had been in CA only 2 days. Agents identified themselves as DEA
          and she became visibly nervous. Agents then returned her ticket and
          ID. then asked her to accompany them to the airport DEA office. She
          consented an went with them to the office (about 50 ft). She there
          consented to a search, which turned out to be a strip search (when
          asked to remove her clothes  stated that she had a plane to catch
          and policewoman responded that if there were no drugs there would
          be no problem,  responded only by taking off her clothes, In doing so
          she handed heroin to the officer. Gov concedes no probable cause.
              o A person is “seized” within the meaning of the Fourth
                  Amendment only when, in light of all of the circumstances,
                  a reasonable person would believe he was not free to leave.
              o No seizure here, gave ticket and ID back.
              o Examples of seizure when suspect doesn’t attempt to leave
                     o threatening presence
                     o several officers
                     o display of weapon
                     o harsh words
                     o touching
              o No requirement that  be told she is free to leave
              o Because no impermissible seizure- search consent was valid
          Concurrence (3) found that there was a seizure but that there was also
          reasonable suspicion so ok. Say reasonableness is a balancing test
          performed on each case- public interest served v. nature and scope of
          intrusion v. objective facts on which suspicion based.
          Dissent (4) find a seizure and no reasonable suspicion.



          Florida v. Bostick: DEA agents board a bus in Ft. Lauderdale. Had
          badges, insignia, and one had a gun in a recognizable zipper pouch.
          Routine boarding of bus to look for drugs. No articulable suspicion
          about the particular person ().  gave consent for the agents to
          search his bag. Lower ct. said that the consent was valid.




                                         29
                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
             o Issue here is whether he had been illegally seized- which would
                 make consent invalid.
             o  argues that he had been seized because he was not “free to
                 leave”, using language from Mendenhall.
                     o He was on a bus and so were the agents so he has a
                         good argument for this.
             o The ct. says that the “Free to leave” test is not adequate for this
                 type of situation- he is not free to leave because he would then
                 be unable to get to Atlanta- has nothing to do with the DEA
                 presence on the bus.
             o New test: whether, taking into account all of the
                 circumstances surrounding the encounter, the police
                 conduct would “have communicated to a reasonable
                 person that he was not at liberty to decline the police
                 requests or otherwise terminate the encounter.
                     o Where encounter takes place is only one factor.
          Dissent- are these searches really suspicionless? Many of these
          searches are probable based not on inarticulable reasons, but
          unspeakable ones- i.e. race. War on drugs not a good reason to forgo
          constitutional rights.

          INS v. Delgado: (1984) Cited in Bostick. INS officers surrounding a
          factory did not confine, job duties confined

          CA v. Hodari D: youths huddled around a car- scatter when they see
          the police in an unmarked car. One of the officers chases the . 
          turned to see the officer, threw a rock away, then the police officer
          tackled him.
              o  claims that he had been seized at the time he threw the rock-
                 so the rock was the fruit of that unlawful seizure and
                 inadmissible.
              o Scalia says that there was no seizure until there was actual
                 physical control or submission to non-physical assertion of
                 authority.
              o Seizure occurs when-
                     o Physically touch suspect
                     o Or suspect submits to authority

LA has slightly different seizure rule:
         LA v. Saia: known Crack house-  walked out, put something in the
         waistband of her pants. Ct. says that just the fact that she associated
         with drug users was not enough on its own to constitute reasonable
         suspicion.
             o Seizure occurred when the police officers sprang from the car
                and overtook the defendant.




                                       30
                                                          Criminal Justice I Outline
                                                                  Professor Green
                                                                       Spring 2002
           o “The police cannot approach citizens under circumstances
             that make it seem that some form of detention is imminent
             unless they have probable cause to arrest the individual or
             reasonable grounds to detain the individual under Terry.”
           o Much more liberal than even much later US S. Ct. decisions-
           o “some detention imminent.”
           o Eclipsed by Tucker- which makes imminent detention
             harder to prove

        LA v. Tucker: 1 problem is that what the ct. calls a pat down reveals
        way more than a weapon-  does not seem to object to this. A couple
        days later during a big raid- the police see the same  and another
        suspect who quickly move to leave at the sight of the police-  and
        other man are told to halt and “prone out.” One of the men lay down
        immediately but Tucker moved several steps away and threw away a
        bag. Then he obeyed the police demand. Police retrieved the bag and
        found a lot of MJ.
           o Under Hodari D. this toss would have been before the seizure
               and so the evidence admissible because there was no physical
               touch or submission yet.
           o LA ct. had a different test found in Saia- “some detention
               imminent”
           o LA constitution provides more protection than the 4th
               amendment.
           o Ct. finds that at the time the  threw down the drugs the
               detention was not yet imminent because the  did have the
               chance to get away- it was dark, he had a lead of several feet,
               etc.

Reasonable suspicion:

        Alabama v. White: Anonymous tip providing details about a woman
        named Vanessa White saying that she would leave her apartment at a
        certain time, carrying a brown attaché case, get in a brown station
        wagon with a broken tail light, and drive to a motel- would be carrying
        cocaine in the case. Police went to apartment most everything was as
        predicted- not carrying the case. Didn’t get all the way to the motel
        before police stopped her, but was near and took the most direct route
        there.
           o Probable cause test for informant tips is Gates “totality of the
               circumstances test.”
           o Ct applies a similar test here for reasonable suspicion-
               using the same criteria from the Aguilar two-pronged test-
               veracity, reliability, and basis of knowledge, but at a lower
               level of requirement.




                                     31
                                                            Criminal Justice I Outline
                                                                    Professor Green
                                                                         Spring 2002
             o Ct says that the requirement is less demanding in quantity,
                content, and reliability.
         G- says- Does the severity of the potential crime mater? Is there a
         lower standard for threats of terrorist attack than for a gram of MJ?
         Not in the law now- but given how far the ct has been willing to go in
         mundane drug cases it seems likely that they would be willing to go
         further- especially in the wake of Sep. 11th.

         Reid v. GA: Drug courier profile? Two guys with similar carry-on
         luggage- seemed to be traveling together but came off the plane
         separately- looked nervous. DEA agent checked ID, asked to return to
         terminal- to which the  seemed to assent- then ran threw bag when
         running- that bag had the drugs-.
                o Reasonable suspicion- clearly no.
                o Unclear when the seizure occurred- Where was the seizure?

         US v. Sokolow: paid $2,100 cash for 2 plane tickets w/ open return
         dates, (§4,000 in hand) black jumpsuit and gold jewelry on the guy.
         20 hr flight to stay 48 hours. Home # registered to dif. Name (turned
         out to be roommate) voice on answering machine was .
            o Ct. did find reasonable suspicion.

         FL v. JL: anon tip. Young black male wearing a plaid shirt and
         standing at a particular bus stop- claimed had a gun. Officers found
         three young black men- one wearing a plaid shirt at the bus stop.
         Stopped and frisked him and did find a gun.
             o Less detailed then White and no predictions of future action. Ct.
                says not enough.
             o If White was close this is on the other side of the line.
             o Also rejects a firearm exception to Terry- no distinction in
                seriousness of potential crime, also weapons not inherently
                illegal.

         IL v. Wardlow: Similar to Hodari D. in circumstances. Large raid on
         high drug crime area. , carrying an opaque bag, saw police and ran.
             o Gov wants the flight (plus high crime area) to constitute
                reasonable suspicion.
             o  says flight should not even contribute to reasonable suspicion.
             o Ct. says it contributes but is not enough on its own.

“Terry Stops” of things
          US v. Place: seizure of luggage from a person in an airport-
          reasonable suspicion on the person/bag-  refused to consent to the
          search. DEA agents take the luggage- tell the person he is free to
          leave. Drove the luggage to Kennedy Airport from LaGuardia to get a



                                       32
                                                     Criminal Justice I Outline
                                                             Professor Green
                                                                  Spring 2002
dog sniff in order to get probable cause for a warrant. Took 90 minutes
to do this.
    o Seems there is detention of a thing on reasonable suspicion, but
       under limits (is this right?)
    o Ct. says that this is too long.
    o Decline to set a time limit but note that the NY agents had been
       alerted to the ’s arrivals by the Miami agents and could have
       been ready with the dog at the right airport.
    o In dicta the ct says that the dog sniff is not a search.
            o Concurring justices do not like the ct. addressing the dog
               sniff interest because it was not at issue in the case and
               was not briefed or argued.
                    Argument for it being outside the scope is that the
                       sniff is not very intrusive at all- can only detect
                       drugs (and gunpowder/bombs), no opening of
                       container, not much embarrassment, etc.
    o Issue is the seizure. The detention of the luggage- is parallel
       to the stop part of a terry stop and frisk.
    o Ct does more balancing here- objectionable to fans of the
       warrant requirement.
Dissent argues that Terry only involved the person and not to effects
and that that is where the line should be drawn. Justice Brennan
probably just didn’t like Terry and didn’t want it extended, but leads to
his sort of strange conclusion that property interest is more protected
the personal interest.

MI v. Long:  driving erratically and speeding- drove into a ditch.
Officers went over and talked to the  and decided that he appeared to
be under the influence. No arrest made. Eventually they got him to
respond and go to get his registration- officers saw a large hunting
knife in the car- made the officers nervous and so they did a weapons
“frisk” on the interior of the car- and in a container large enough to find
a weapon found MJ.
o No arrest- but ct. relies on Belton and Chimel- the search incident
     to arrest car cases- and sees them as analogous- danger to police
     officers.
         o Argue perhaps more dangerous because the suspect can
             get back in the car-
         o not the best argument because if the suspect is back in the
             car he is free to go and has no interest in attacking a police
             officer.
o To do a Terry frisk of a car must have reasonable suspicion
     that suspect is dangerous and may gain immediate control of
     weapons.




                               33
                                                               Criminal Justice I Outline
                                                                       Professor Green
                                                                            Spring 2002
          o Scope of search seems to be a little more limited than in Belton-
              area must be in suspects more immediate control and the
              space must be big enough to hold a weapon.
          o Search not automatic with a stop- sole justification is
              protection, not preservation of evidence.
          Dissent wants to distinguish between an arrest and a terry stop- brevity
          of encounter, etc. Here not a frisk or a limited search. More intrusive
          than reaching into a pocket. Most parts of car and containers in a car
          big enough to hold a weapon.  may have things that could be
          considered weapons for legitimate purposes. Drunk driver dangerous
          behind the wheel, not while car is already in ditch and police are there.
          Says balancing only available in terry because search is much less
          intrusive than with arrest, here search is pretty much the same as one
          would be with an arrest.

“Special Needs” Administrative Searches and seizures

Health/safety
Housing inspections
Regulated industries
Border searches
       Fixed points/roving patrols
Vehicle registration/license
       Unsafe vehicles
Sobriety checkpoints/drug checkpoints
Drug testing
       Railroad employees, customs officials, school athletes, states candidates,
       pregnant women/new mothers

          MI Department of State Police v. Sitz: sobriety check points set up
          temporarily on state highways- every vehicle seized for an average of
          25 seconds. Idea is to prevent drunk driving. If police suspect
          intoxication they have the car pull over for further field testing. 1.6% of
          cars stopped were being driven drunk. (More than immigration or
          border check points- upheld in US v. Martinez-Fuerte)
              o Ct. uses balancing test from Brown v. TX
                  state’s interest
                  effectiveness
                  level of intrusion
              o Ct. notes that someone could make a u-turn and avoid the stop-
                  this may not really be true- u- turns are often illegal giving
                     the police independent probable cause, and under cases
                     decided after this one (J.M., Hodari D., Whartlow) avoiding
                     the police can lead to reasonable suspicion.




                                         34
                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
          City of Indianapolis v. Edmond: stop looking for drug traffickers-
          transporting drugs, also checked for license and registration.
          Approached cars, dog sniffs, plain view searches from outside the car.
               Ct says primary interest is to detect criminal activity- not direct
                  threats to public safety.
               Fighting crime must be done with some suspicion/probable
                  cause.

          Skinner: railroad personnel involved in train accidents- testing
          everyone on the train at the time of the accident for drugs ok.

          Von Raab: can randomly test customs officials carrying guns

          Veronia: school district testing of student-athletes ok

          Chandler: Georgia’s law requiring candidates for public office to take a
          drug test unconstitutional- no evidence of a problem, so little need, and
          need not closely related to any public interest.

          Ferguson v. Charleston: (2001) Drug testing pregnant women—real
          interest is crime control; Absent consent or exigency, urine testing
          requires search warrant.

General principles of administrative searches:
In the cases where the ct allowed the stops/seizures it found there was a good fit
between the public need and the method employed to deal with it. Big issue is
whether the motivation is public safety or law enforcement. E.g. sobriety stops
ok, but drug stops not ok. Drug testing of Railroad employees ok, but not of
pregnant women/new mothers because of difference in how being used. Also,
amount of intrusion, including fear/surprise is relevant- roving v. fixed patrols.
Preventing dangerous crime treated differently than investigating a past crime-
Motive relevant- Better to stop all then some b/c avoids discrimination problems

Standing:

          Alderman v. United States: ’s charged with conspiracy to transmit
          murderous threats in interstate commerce- Seek to exclude tape
          recordings of a co-defendant’s premises.
              Ct. says no. 4th amendment rights are personal and can’t be
                 asserted by anyone else.
              Ct. did say that had the ’s voice been recorded or had the
                 recordings been made on his premises (regardless of whether 
                 present) he would have had standing.

          United States v. Payner: illegal search of the briefcase of an offshore
          banker- led to evidence against the .


                                        35
                                                        Criminal Justice I Outline
                                                                Professor Green
                                                                     Spring 2002
            is out of luck.
            Does not make clear what the test would be.

      Rakas v. Illinois: police stop and search a car- passengers in the car
      have no property interest in the car and do not own the evidence
      seized.
       ’s argued that they were targets of the search- using language
          from Jones -Jones involved an overnight visitor in the apartment of
          a friend, had a key, had control,
       Ct. says no- reject it as dicta
       ’s argued that they had standing b/c legitimately on the premises
          at the time of the search
              o Based on Jones again- Jones rule was that anyone
                  legitimately on the premises had standing
       Ct. says no- too broad. On its facts Jones was ok, but the
          reasoning was too broad.
       Ct. collapses the standing test with the Katz threshold test-
          Reasonable expectation of privacy. Totality type test.
              o Also relevant that the search was of a car not a house-
                  effects the reasonable expectation of privacy.
              o Maj. says that property interest is relevant but not
                  determinative-
      Dissent responds that the Maj may say this but that they have
      effectively made the rule concurrent with those property interests.
      G- Does this rule create open season on passengers? Police can stop
      and search any car and be able to use the evidence against the
      passengers.

Automatic standing doctrine- automatic standing in prosecutions for
possession- because of the problem that to get standing for the 4th
amendment you would have to assert possession- winning the battle but
losing the war- cts did away with this by creating a rule that testimony
about possession in the preliminary hearing was not admissible in the
case in chief.

      US v. Payner: (1980) Guest had key to apartment; guest has no
      standing to exclude evidence against him

      Minnesota v. Olson: (1990) Police entered a home without a warrant or
      consent. Police believed that  was staying there as a guest. Officers
      searched until they found  in a closet.
         o Ct found that an overnight guest has standing to challenge a
            search of host’s home.
         o Societal expectation of privacy when a guest in another’s home.
         o Fact that host has ultimate control of the home is not
            inconsistent with an expectation of privacy. Hosts will more


                                   36
                                                             Criminal Justice I Outline
                                                                     Professor Green
                                                                          Spring 2002
                 likely than not both allow the guest some control/use of the
                 premises and respect their privacy.

          Minnesota v. Carter: visitors to an apartment- solely there to bag
          cocaine. There for 2-1/2 hours bagging cocaine.
             o Do not have standing to challenge a search.
             o Not overnight guests so distinguishable from Olson.
             o Also no personal relationship between ’s and “host”- paid to
                use the place with coke.
             o Not ’s home, more like a workplace where there is not a similar
                expectation of privacy

          Rawlings v. KY: (1980)  and another girl, Cox, were visitors in a
          house while it was searched pursuant to a warrant. Police smelled MJ
          and detained guests in order to seek a warrant- would not let them
          leave unless they consented to a body search. Police got warrant and
          had Cox empty her purse, out came a lot of LSD and other drugs.
          Police told  to take what was his and he claimed the drugs were his.
          Later  tried to argue that the search of the purse was illegal. Cox and
           had not known each other long. He had never had or sought access
          to her purse before. Nor did he ever have the right to exclude others
          from her purse. That morning one of Cox’s friends had rummaged
          through the purse to find a hairbrush.  made frank admission that he
          had no subjective belief that purse would remain free from
          governmental intrusion.
              o Ct. says  does not have standing to challenge validity of
                 search of another’s purse which contains his drugs.
              o An evaluation of the totality of the circumstances will be
                 made to determine whether an individual had a reasonable
                 expectation of privacy in the place to be searched by
                 police.
              o

LA Standing Rule:
LA Constitution §5- broader than 4th amendment law- have standing anytime
the evidence would adversely effect you.


4th Amendment Exclusionary Rule:
Overview of Exclusionary Rule:

Mapp v. Ohio: (see above for facts) case which first applied ER to the states.
     Instituted exclusionary rule for 2 reasons
              deter police misconduct



                                        37
                                                                 Criminal Justice I Outline
                                                                         Professor Green
                                                                              Spring 2002
                 taints the integrity of the court by at least indirectly sanctioning
                  illegal behavior

2nd rationale has been abandoned by the court because to allow exceptions they
had to let it go.

Deterrence by its nature is a cost benefit analysis- allows exceptions and
“tweaking”

How effective is the rule? Hard to determine or measure at all, what would you
use as a control

What about good faith violations?
         Most violations are in good faith- split second decisions made
            under complicated rules by police officers who are not educated as
            lawyers
         However, enforcing the rule encourages more education,
            consciousness, appropriate institutional culture.

Costs of the exclusionary rule
           Reversed convictions of guilty people
           Non-prosecutions
           Hard to measure how much this happens
           Plea bargains
           Less evidence
           So hard to know how many cases are thrown out over this
              violations
           Destruction of confidence in the criminal justice system
           Disproportionality- not sensitive to the significance of the evidence,
              violation, or the case
                  o Not meant to be compensatory- not a reward for the
                      defendant but a cost to the government- regulatory function

Are the objections to the exclusionary rule really objections to that rule or are
they really objections to the 4th amendment itself.

Grand jury exception- grand jury is just between the jury and the prosecutor,
does not effect conviction, only indictment.
       Prosecution does realize that even if they get an indictment they can’t
admit the evidence.

Impeachment exception: applies to both direct (Walder) and cross-examination
(Havens).
      Has a chilling effect on  testimony- applies both too evidence from prior
cases or the one at hand.



                                          38
                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
Exclusionary rule does not apply to:
Civil tax, habeas corpus, sentencing, bail, probation, parole, deportation, criminal
seizure, etc.

“Good Faith” Exception:

          United State v. Leon: police reliance on a facially valid search warrant
          issued by a magistrate but eventually found lacking probable cause.
              o This case decided right after Gates which changed/relaxed the
                probable cause standard.
              o rationale for creating this exception to the warrant requirement-
                Use a balancing test to find whether the cost to society is worth
                it.
              o How do you tell what is good faith? What if the police officer
                knew that there was no probable cause. Subjectively he did not
                execute it in good faith. However- footnote 20 says that it is an
                objective standard. Could he reasonable rely?
              o Good faith is a misnomer- reasonable reliance would be a better
                word.
              o What if the warrant was valid but the police officer made a good
                faith mistake in carrying it out?
                     o No focus on this question in Leon- focus only on the
                        mistake of the magistrate.
              o If the exclusionary rule is to deter violations by the police- here
                the police, as far a they knew, did everything right. However
                why wouldn’t this be a deterrent to the magistrate as well?
                Magistrate is impartial- no interest in the outcome. However, no
                judge likes to be reversed so that may be the restraint on them.
              o Good faith exception: only applies if the magistrate is the
                one who makes the mistake and the police officer
                reasonably relies (objective standard) on that warrant.

“Exceptions” to the “good faith” exception (also from Leon)
   Franks v. DE: magistrate mislead by information in an affidavit in
     which the affiant lied or recklessly disregarded the truth.
        o Even if the police officer lies about some of it, but the rest which
            was true was enough to support probable cause the warrant
            was valid enough for the evidence to be admitted.
   Lo-Ji Sales v. NY: issuing magistrate wholly abandoned his judicial role- in
     such circumstances no reasonably well-trained officer should rely on the
     warrant. In Lo- Ji the magistrate was not neutral and detached and had
     accompanied police on the investigation/search.
   Police officer can’t reasonably rely on a warrant based on an affidavit “So
     lacking in indicia of probable cause as to render official belief in its
     existence entirely unreasonable. “ If based on a bare-bones affidavit.




                                         39
                                                               Criminal Justice I Outline
                                                                       Professor Green
                                                                            Spring 2002
      Warrant so facially deficient that the officer cannot reasonably rely on
       it- i.e. it does not adequately particularize the place to be searched or
       the things to be seized.

Problems on 493-
      4. Does Leon apply if a magistrate signs a warrant without reading the
supporting affidavit? May be a Lo-Ji exception- but what if the police officer
doesn’t know that the magistrate did this and could reasonably rely on it?
Answer is unclear- could argue for either. G- thinks doesn’t apply- language in
Leon broad enough to include such a case in the exception to the exception.
Looking at the warrant briefly treated differently from not reading it at all.

5. valid warrant, pursuant to a long-time policy in that county the police searched
all items of value with serial numbers to determine if they were stolen and
discovered other crimes. Essentially a generalized search. Should all evidence
be excluded? Ct.’s have found that only the evidence from the part of the search
that exceeded the warrant will be excluded. Does Leon Apply? No because the
mistake is not the magistrate’s.

          Massachusetts v. Sheppard: technical violation in a form warrant.
          Language about illegal narcotics not struck and places to be searched
          listed in affidavit and not in the warrant. Police did limit the search to
          the places listed. Warrant issued on the wrong form which the police
          made due with because it was a weekend- ct. closed, had to go to
          magistrates home, were investigating a murder.
               o Only issue is whether belief in validity of warrant was
                  reasonable
               o Ct. says that it was

Look at Gates in connection with Leon: does the probable cause behind the
warrant matter after Leon? If the magistrate makes a mistake about probable
cause the warrant may still be essentially upheld because of the good faith
exception. No exclusionary rule deterrent. However there are practical reasons
why Leon may rarely be argued- involves admitting a mistake, and arguing that a
judge made it, and admitting that the ’s constitutional rights have been violated.

What if a clerk makes the mistake-
          AZ v. Evans where an outstanding warrant was accidentally left in the
          computer and showed up in a routine traffic stop. Ct. hold that the
          exclusionary rule should not apply because it will not deter court
          clerks.

Fruits Doctrine: If evidence obtained under an illegal search or seizure or other
constitutional violation leads to the discovery of other evidence then that
evidence is also excluded as fruit of the poisonous tree. Complexity added by
the doctrine of standing.


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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
          Silverthorne v. US (1919) Fruit of the poisonous tree not admissible.

Independent source:
It is the evidence that must be excluded not the information- so if the state can
get the information from a different source the evidence that it leads to is
admissible.

          Murray v. United States: unwarranted exploratory search of a
          warehouse, found burlap wrapped bales, search conducted but not
          relied on in issuing a warrant- based on independent probable cause,
          search under valid warrant turned up bales of MJ.
               o Scalia says that the burden on the state is raised in cases like
                  this because the officers must prove not only probable cause
                  but also that the probable caused was based independently
                  from the illegal search.
               o Problem is that the police are under no obligation to tell the
                  magistrate that they have conducted the illegal search, but the
                  defendant will then raise that issue at trial.
          Marshall’s dissent says: What if police are sure that they have
          probable cause, but don’t want to go through the hassle of getting a
          warrant unless they know it is worth it so they go in without a warrant
          first and then if they find a reason to want a legal search they go apply
          for a warrant based on the facts supporting the original probable
          cause.


Inevitable Discovery Doctrine: exclusionary rule is also not applicable if the
information would have been obtained from a hypothetical independent source.

Attenuation:

          Wong Sun v. United States: arrest Toy without probable cause thus
          arrest is invalid. He implicates Johnny Yee who the police arrest and
          seize a piece of heroin implicates Wong Sun and Toy. They then
          arrest Wong Sun without probable cause- finding no narcotics. All
          three are arraigned, all three then released on their own recognizance,
          and in the next couple days are questioned by narcotics officer. Toy
          and Wong Sun are trying to suppress evidence.
   Toy-
       statement in bedroom at time of arrest (part II of the opinion)
            o fruit of the unlawful arrest- never would have made it if he hadn’t
               been arrested
            o excluded
       the heroin (part III of the opinion)
            o also a fruit- never would have arrested Yee if hadn’t gotten
               statement from Toy at the time of his unlawful arrest.


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                                                             Criminal Justice I Outline
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                                                                          Spring 2002
             o excluded
         an unsigned statement to the police.
             o Thrown out on non-constitutional grounds
             o May have been admissible based on attenuation
    Sun-
       unsigned statement to the police
           o contention is that the statement itself was gained
               unconstitutionally, so he does have standing.
           o He was arrested illegally
           o However the statements are described as voluntary
           o Too attenuated because he was released
           o Also the violation of Toy’s rights are not something he can
               assert- standing.
       the heroin (part V of the opinion)
           o Standing problem- not his rights which were violated.

Brown v. IL: Arrested in apartment without probable cause, while in custody and
after being read his Miranda rights he made confessions. Ct. held that Miranda
warnings do not automatically untaint testimony- Miranda neither
necessary nor sufficient.

New York v. Harris: home arrest without a warrant. Read Miranda. Harris
waived his rights and admitted to killing the victim. Later at the police station
gave a signed statement. Interest protected by probable cause requirement-
liberty. Interest in requirement of warrant for an arrest in your home- privacy
Statement treated differently then physical evidence, because of the difference in
interest protected. Says that once the  arrested in his home without a
warrant is taken outside the house continued custody is not
unconstitutional. Thus statements made in the home were inadmissible
but those made later at the station were admissible. Creates a problem with
Payton.

United States v. Ceccolini: Unlawfully obtained information leads to a witness.
Should the witness’s testimony be excluded? Ct. less likely to apply the
exclusionary rule to the testimony of a live witness because they could
have and often do come forward. Likely to be found anyway.


Confessions:

The voluntariness requirement: Due Process

Most of the law on this not based on the 5th amendment- probably because of the
incorporation issue under which the amendment did not apply to state
governments until the last century. Miranda (1966)



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                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002
Difficult to satisfy the due process clause test, acts as a safety net when the 5 th
and 6th amendments don’t apply.

Due Process Clause: Brown (1936)
       Safety net- formal proceedings, custody, interrogation, etc don’t
         matter
       issue is voluntariness- were there rubber hoses.
       Look at the totality of the circumstances- psychological, physical,
         etc. e.g. age, education, kinds of threats and promises used, isolation
         from family/friends/council, food, length of interrogation, etc.
             o Mere fact of one of the above exists is not per se enough to
                invalidate a confession.

Lisenba v. CA: Bizarre murder of the ’s wife- rattlesnake bite and left face down
in a pond. 32 hour period of questioning, 1 or 2 breaks, possibly no food- facts
disputed. Then 10 hours at a later time. Did not call the lawyer that he asked
for. Did not bring him before a magistrate. Illegal acts do not furnish an answer
to the voluntaryness constitutional question. The issue is still whether the
confession was voluntary.

Cicenia v. La Gay: council denied for a whole day-  asking for it and lawyer
present. If it had been a federal case the ct. would have dealt with it on
regulatory grounds but unwilling to say that it was a constitutional violation.
   o J. Douglas says that this is really about a 6th amendment violation and that
       he would exclude the evidence on those grounds.

Justification for excluding confessions gotten under violence is that the
confessions are unreliable/have little probative value.

As those cases are excluded, the police get more sophisticated and use
psychological and other techniques short of physical beatings- food and sleep
deprivation, threats, promises, etc.

Factors in violation of due process clause:
    Physical violence
    Isolated from friends, family, council (especially when the  asks to see
      council)
    Deprivation of food, water, cigarettes
    How long interrogation goes on
    Rest, sleep, breaks in questioning
    Failure to apprise  of his rights
    Characteristics of the accused- age, intelligence, mental illness,
      education, experience with criminal justice system, physical health
    Who were the actors- i.e. government or not

Problem of false friends and confessions:


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                                                                       Professor Green
                                                                            Spring 2002

Spano v. New York: death penalty case, murder, beaten by a former
professional boxer who had stolen his money and then left and came back with a
gun. Calls a childhood friend who is a police cadet and tells him about it. Turns
himself in with a lawyer. Lot of interrogation without lawyer- denied ability to talk
to his lawyer twice. Brought in childhood friend as manipulative influence. Did
not admit confession.
    o How is this distinguishable from Lesemba?
            o Ct. in Lesemba seems to indicate that there they thought the
               confession reliable-
            o  had cool self possession- seemed to be voluntary.
    o In Spano the focus of the court is more on the police actions- no
        discussion of reliability and nothing to indicate that he wasn’t telling the
        truth.
    o Ct. excludes the testimony
    o Stewart concurrance: agrees that testimony should be excluded based on
        denial of council alone

AZ v. Fulminante:  in prison on other charges and cell mate informant
approaches him with the rumor that he had molested and killed an 11 year old
child. Said that if the rest of the prison found out  would be in trouble.
Informant has motivation to produce a good confession in order to get favorable
treatment.  confessed- Ct. excluded. Probably because there was a credible
threat of violence.

Requirement of Police Action:

CO v. Connelly:  approached a police officer and confessed. Was then fully
apprised of his rights. Problem was that the  was suffering from a mental illness
involving command hallucinations- believed that God was telling him to confess.
The police had no part in the coercion.
    o Thus the confession was admissible because there was no coercive
       state action
Dissent argues that there is a big reliability problem with this- he was compelled
to do this and so the confession is not worth much. Not a product of free well-
focus should be on both free will and police conduct. Fruit of the poisonous tree
problem- would probative evidence found as a result of the confession also be
excluded? May have been a problem the majority took into account. G- says that
it would be better to exclude the confession and allow the fruit.

Due Process Exclusionary Rule:

   o Statement definitely excluded
   o Fruit of the poisonous tree: most expansive exclusionary rule- probably
     almost all if not all fruits excluded



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                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002
5th Amendment: Police Interrogation

Cruel Trilemma
     Self-accusation/incrimination
     Perjury
     Contempt
Without the right to remain silent a  faces this cruel trilemma- if you refuse to
testify you can be held in contempt and go to jail, if he lies he commits perjury
and goes to jail, if you tell the truth you incriminate yourself and go to jail.

Remaining silent itself shall not be construed as evidence of guilt. Is now a jury
instruction.

Giving immunity obviates the trilemma- if the  has immunity the person can be
put in contempt.

Original thinking may have been that the 5th amendment really has more to do
with trials or hearings and doesn’t really have application to pre-trial investigation.

Escobedo v. IL: one of the great false starts in Supreme Ct. Jurisprudence-
under 6th amendment- arrested for murder of his brother in law, released on writ
of Habeus corpus, co-conspirator confesses, rearrested and interrogated without
benefit of council. Ct. extends Messiah (decided in 1964- giving the right to
council at the time of formal charges) back to critical period before formal
proceedings- between arrest and indictment. Really opened up the floodgates to
the exclusion of confession. Then two years later Miranda was decided and did
away with the need for Escobedo (which was overturned later anyway)

By the time Miranda comes up the court is primed for a rule- Dissent in spannow
focusing on lack of council, ct at pinicle of Warren Ct. liberalism, midst of civil
rights movement, etc.

Extends beyond the language of the constitution and essentially creates a new
right- applying the 5th amendment right to the pre-trial stage. If police fail to read
Miranda or the  fails to waive his rights the confession is inadmissible.
Exclusionary rule there- but is even weaker.


Miranda:
lays down a bright line rule in favor of the defendant (works like other bright line
rules in the field, but is the only one which tends to favor the defendant) No
assumption that the defendant knows his rights (even if he is a law professor or a
cop)- part of the prophylactic nature of the bright line rule

Elements of Miranda Warning:
    Right to Silence


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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
           o Anything you do say can and will be used against you in a court of
              law
      Right to Counsel (physically present with you during questioning)
           o
           o Indigent- one will be appointed for you
      Interrogation ceases
      Waiver (must be done affirmatively- failure to ask for a lawyer is not a
       waiver) Burden to show waiver is on the police
           o Waiver not presumed from silence
      Confession is any statement that the defendant makes- no degree of
       incrimination
      Applies when in custody (Miranda decided before Terry)
           o Non-seizure encounter
           o Terry stop
           o Arrest- Miranda has to be read here


Miranda Custody:

OR v. Mathiason: (decided after Miranda and Terry) Defendant voluntarily came
to the police station, was told that he was not under arrest, was not told that he
could leave. Never read Miranda.
    o claims that he was in custody as he was deprived of freedom in a
       significant way.
    o Ct. disagrees. Says that he was not in custody so Miranda didn’t apply.
       Custody definition moves from the “deprived of freedom in any significant
       way language” to a more objective test.
    o Was his freedom actually deprived, was his freedom to leave in fact
       restricted.



                               Custody

                             Formal
                             Arrest


Berkemer v. McCarty:  stopped on the interstate. During which time he was
asked questions and made incriminating statements. He was then arrested,
taken to the station and given a breathalyzer test (did not find alcohol) and asked
and answered more questions again incriminating himself, this time also in
writing. At no point was he informed of his Miranda rights. Basis for exclusion is
failure to read Miranda.
    o Statements made after arrest-
            o inadmissable


                                         46
                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
        o Ct. says that severity of offense doesn’t matter- misdemeanor
           and felony both fall under Miranda.
   o Statements made before arrest-
        o Ct. agrees that there was a seizure- that the  was ”otherwise
           deprived of his freedom of action in any significant way”- which was
           the dicta in Miranda
               Few drivers would feel free to leave.
        o But Ct. holds that there was no custody here.
               Ct. says that this was more like a terry stop, not custody.
               Says that the pressures that Miranda was designed to
                  protect against are not present in a routine traffic stop
                       In public
                       Generally only one officer
                       Not a “police dominated attmosphere
        o Custody definition clarified to mean an arrest or the functional
           equivalent of an arrest. Relevant inquiry is how a reasonable
           person in the suspect’s situation would view the situation.
           Hybrid of subjective and objective standard- modifies Mathiason.

Miranda Interrogation:

RI v. Innis: murder suspect put in the back of a police car with 3 officers who talk
among themselves about the dangers of the missing murder weapon, a shotgun,
and the nearby school for handicapped children. No questions or statements
were addressed to the , but the  interrupted and showed the officers where the
gun was.  had been advised of his Miranda rights, but had asked to speak to a
lawyer and so interrogation was not permitted until a lawyer was consulted with
and present.
    o Issue is whether the officers’ conversation constituted an interrogation.
    o Holding is that express questioning or any functional equivalent-
        “any words or actions on part of the police should know are
        reasonably likely to elicit an incriminating response”
    o Motive is relevant to the extent that it indicates whether the officer
        reasonably believed it would get a response. (footnote 7)
    o Ct. did not find that this was reasonably likely to elicit an incriminating
        response- so evidence was admitted
    o Doesn’t reconcile very well with the Brewer v. Williams decision.
Marshall’s dissent: test is right but not applied well here. This should have been
considered the functional equivalent.
Steven’s dissent: test should have one prong- the police should know are
reasonably likely to elicit an incriminating response. The determination should
not rest on a question mark.

Public Safety/emergency exception:




                                        47
                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002
NY v. Quarles: hot pursuit of a rapist, found him in a deserted supermarket, put
the  in handcuffs (custody), noticed an empty shoulder holster. Four officers.
No Miranda yet. Police immediately asked where the gun was. (express
question- so interrogation).
   o Ct. found that the missing gun was a public safety hazard.
   o Created a public safety exception
Dissents say that Miranda should be kept a bright line rule- if there really is
public safety issue police can still ask the question and the only consequence is
that the statement will be inadmissible. Not even a fruits doctrine problem.
Marshall’s dissent says that the big problem with the case is its move to a
balancing approach to Miranda.

Routine Booking exception- 4 say it is an exception, 4 say they are admissible
b/c they are not confessional statements

Undercover exception-.

Illinois v. Perkins: Police put an informant in a jail cell with  who asked questions
(interrogation) which led to an incriminating statement.
     o  tried to have evidence excluded b/c no Miranda warning
     o Ct. says that if the officer is undercover Miranda doesn’t apply b/c the
         element of state coercion is missing.
     o Compare with Fulminate- decided under the due process clause

Waiver and Invocation of Miranda Rights:

Elements of a valid waiver:
   o Voluntary
         o Means actions by a person whose will is not overborne by the state
   o Knowing
   o Intelligent
Relinquishment of Miranda rights.

North Carolina v. Butler:  read his rights and presented with a waiver form. 
said that he understood his rights, would talk, but did not want to sign anything.
Tr. ct. admitted the evidence, NC S. Ct. reversed because it did not find an
express waiver- esp. to the right to council.
     o S.Ct. reinstated the tr. ruling saying that there was no requirement of
         express waiver in Miranda.
     o Instead said that there could be an implied waiver
     o that ambiguities were resolved in favor the defendant
     o and that the whole picture looked at, voluntaryness and knowledge
         plus the characteristics of the  (intelligence, education, age, etc).
     o Says that there is a heavy burden on the prosecution presumably “to
         prove that  knowingly and intelligently waived his rights” which is the
         language from Miranda.


                                         48
                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
 Dissent argues that this looks more like the due process approach to
confessions than like the Miranda bright line prophylactic rule and says the rule
should be a bright line express waiver.

Offense specificity of the Miranda waiver:

If arrest is for one crime and the waiver is given, but then the questions are about
another crime is the waiver valid? Colorado v. Spring ct holds that it is not valid.

Is voluntaryness for the waiver the same as voluntaryness for the due
process analysis? Colorado v. Connolly says that it is. That the coerciveness
that vitiates voluntaryness must be from a state actor.

Invocation- Rt. to Council:
Edwards v. Arizona:  invoked his right to council and was put in a jail cell, the
next morning before he saw an attorney detectives came back to talk to him, he
said no again and the guard said that he had to talk to them. They proceeded to
question him and he did confess, though refusing to do it on tape.
    o Ct. holds that there was a valid invocation of rights, which raised
       walls around the  prohibiting the police from any more attempts at
       interrogation.
    o Thus the evidence is inadmissible.
    o Ct. does say that if he voluntarily initiates a discussion about it the
       confession is admissible.
    o If there is no dialogue there may be no interrogation.

Minnick v. Mississippi: suspect in custody told FBI agents to come back when he
had a lawyer.  did speak with his lawyer several times. Police from another
jurisdiction then came and the jailer told the  that he had to talk to them. Police
advised him of Miranda. He declined to sign a waiver form. During the
questioning which followed he incriminated himself.
    o Held that once a suspect invokes his right to council the police may
        not reinitiate interrogation in the absence of counsel
            o Dissent characterized holding that  can never waive his rights
               after invoking them
            o even when read Miranda several times and consulting with his
               lawyer several times.
            o This is the highwater mark of Miranda/Edwards. Seems to be a
               prophylaxis on top of a prophylaxis. Like Talmudic fences around
               Old Testament fences.

Davis v. US:: about ½ hour into questioning  said “maybe I should talk to a
lawyer” Investigators then respond with a sort of clarification question. Not the
most direct but could be considered reasonable way to clarify. ( did then say
that he wasn’t asking for a lawyer)



                                        49
                                                                  Criminal Justice I Outline
                                                                          Professor Green
                                                                               Spring 2002
           o argues that they should have had to stop speaking as soon as he
             said “maybe I need a lawyer.”
           o Ct. disagrees- says to stop questioning the invocation must be
             “sufficiently clear that a reasonable police officer in the
             circumstances would understand the statement to be a
             request for an attorney.”
           o must unambiguously invoke right to lawyer

Does Edwards ever dissipate?
US v. Green:  had invoked right to counsel on one offense and was sent to jail
in a juvenile facility. 5 months later the police questioned him on an unrelated
charge.
        o  claimed violation
        o other cases in the lower courts had held that if in continuous custody-
           as here- the right remained attached for the entire length of a
           sentence/custody
        o S. Ct. granted Certiorari- never ruled because  died.

Invocation- Rt. to Remain Silent:

Michigan v. Mosley: decided five years before Edwards.  questioned by a
detective in the armed robbery section then he said that he didn’t want to talk
anymore about the robberies. A few hours later a homicide detective questioned
him about a fatal shooting during a holdup attempt that was not the same robbery
as the one discussed in the initial interrogation. Re read Miranda and had him
sign a form.  implicated himself. At no time during the discussion did the  ask
for a lawyer or indicate that he didn’t want to talk.
    o Ct. says test is whether the invocation of rights was scrupulously
        honored.
    o I.e. can go back and question later but on a reasonable schedule- need to
        back off and give the guy room.

Invocation of right to counsel and right to silent have different rules for
subsequent police behavior. Why? Appearance of council is a certain event
and a final expiration of the right but without the different rule for silence the right
would continue indefinitely and this might be too much of a hindrance on the
police. Also request of council may be an even more significant request- Not
only do I choose to remain silent but I also want a lawyer, has more weight than
just saying you want to stay silent.

How do you recognize an initiation after the invocation of a right to
counsel? Must be fairly said to represent a desire on the part of an accused to
open up a more generalized discussion relating directly or indirectly to the
investigation “ statements or questions that are “routine incidents of the custodial
relationship” are not an initiation.



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                                                              Criminal Justice I Outline
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                                                                           Spring 2002


Miranda Exclusionary Rule:
Witnesses: (admissible)

MI v. Tucker: (1974) Incident occurred before Miranda handed down, but the tria
took place after. Should the testimony of a witness found as a result of a violation
of Miranda be excluded?
    o No, Miranda exclusionary rule is narrower than Mapp because Miranda is
        quazi-constitutional. Distinguished Wong Sun on this basis
    o Said witnesses testimony was not unreliable-  had the opportunity to
        cross-examine
    o Deterrence rational lost “much of its force” in the pre-Miranda context of
        the case because the police had acted in good faith when they provided
        the incomplete warnings
    o Rejected judicial integrity as an independent basis for excluding the
        challenged evidence

NY v. Quarles: (1984) should a statement resulting from a question that arguably
fell under a public safety exception be excluded? No. Should the Gun? No was
the dicta- later overruled.

Subsequent statements: (admissible)

Oregon v. Elstad: (1985) Gov. concedes that  was in custody (in home, not
much show of force so may not have been true) and was under interrogation but
before he had been read Miranda he made an incriminating statement about
being at the scene of the crime. After arrest he was read Miranda, waived his
rights and then gave a much fuller confession.
    o He later sought to exclude both confessions; one was part of the violation,
        the other as a fruit of the poisonous tree because the cat was out of the
        bag.
    o As far as the  knew he had already confessed and so may have been
        more likely to confess after being read his Miranda warnings.
    o The ct. doesn’t see that as a convincing reason to exclude the evidence-
    o Miranda violations are not the same as violations of the 5th amendment-
        here they are merely technical violation.
    o Twin rationales of Miranda, trustworthiness and deterrence, did not call for
        the exclusion of the subsequent testimony

Physical Evidence: (probably not excluded, no case on point)

OR v. Elstad: includes the assumption that witnesses (Tucker) and physical
evidence can be admitted- uses it in reasoning that subsequent statements are
also admissible.




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                                                                Criminal Justice I Outline
                                                                        Professor Green
                                                                             Spring 2002
Also, if Miranda is prophylactic and not an actual violation of the 5th then there is
probably no fruits doctrine applicability at all.

Impeachment: (admissible)

Harris v. New York: (1971) no exclusionary rule exists in the area of
impeachment. Similar reasoning to that in Walder and Havens- would be license
to perjure- but rule does have the effect of stifling the ability of the  to testify.

If the 5th amendment itself/due process was violated then the fruits would
be excluded- Mincey v. Arizona. Ct. probably less likely to find attenuation
here than in the 4th amendment exclusionary exceptions.


§3501: passed in 1968- but the Justice Department decided to ignore/not
enforce it- decided from the start that it was unconstitutional and that congress
couldn’t overrule Miranda like this. However as more cases defining Miranda
were decided saying that Miranda was not a constitutional rule but only a
prophylactic rule.

Dickerson v. United States: (2000) 4th circuit decided that §3501 overruled
Miranda. S.Ct. said that §3501 was unconstitutional and the Miranda stands.
   o Seems surprising in light of the statements in the Miranda exclusionary
      rule cases that Miranda is not constitutionally mandated.
   o Miranda itself said that the government could come up with a better way
      that would be ok as long as it was at least as protective of the 5th
      amendment rights.
   o Doesn’t actually say that the rule is a constitutional one, but seems clearly
      implied by some of the language and the holding.
   o Ignores the dicta in the difficult cases and looks to the holdings which he
      says are consistent with Miranda because ct. couldn’t foresee all the
      implications of the rule and had to deal with them when they came up.
   o Does leave open the possibility of another rule. A good suggestion might
      be videotape- maybe better than Miranda as a protection, avoids the
      formalism and saturation of Miranda.

Testimonial Limitation on 5th Amendment Protection:

Schmerber v. CA:  was in the hospital following a car accident.  wanted to
take a blood sample to run a tox screen.  argued that being compelled to give
blood was being compelled to incriminate himself. The court disagreed saying
that taking blood was not a testimonial function and only testimonial actions are
protected. (4th amendment angle decided against the  as well)

Voice samples v. voice samples where police have instructed him to use a
certain tone of voice.


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                                                              Criminal Justice I Outline
                                                                      Professor Green
                                                                           Spring 2002
Lie detector is communicative
Handwriting is not
Voiceprint to find a match is not
Fingerprints are not
Line-ups are not

Massiah and the 6th Amendment:

Massiah v. United States:  arrested, indicted, retained counsel, was released on
bail. Co- flipped and allowed a bug in his car. Government agent listened in
and testified about the incriminating statements that the  made to the
informant/co-.
           o Ct. says that the time after a formal indictment is when you most
               need counsel. Probably not exactly true- probably the most
               important time is the initial investigation. None-the-less
           o ct. holds that police cannot deliberately elicited statements after he
               had been indicted an in the absence of counsel.

Brewer v. Williams: ex-mental patient seen leaving a YMCA with a bundle
containing legs and drove off, a warrant was issued for his arrest on kidnapping
charges, after talking to counsel he later turned himself in in another city. Sees a
lawyer there too. Both lawyers tell him not to talk. He had been arrested and
arraigned. He is read Miranda at least 3x. The police officers from the 1 st town
come and get him and in the police car on the way back discuss the need to find
the body and give it a Christian burial. Tell him to take note of the weather
conditions- snow which might prevent finding the body later, mention Christmas
and the little girls parents, say they are going right past the area, etc. Officers
knew that he was an ex-mental patient and very religious – called him reverend.
[Similar to Inness (decided before Inness) where the police officers discussed
among themselves the gun and the handicapped children’s school- but Inness
found no interrogation and specifically distinguished Brewer- saying that 6th
amendment “deliberate elicitation” not the same as 5th amendment Miranda
“Interrogation.”] Also here officers spoke directly to  and knew of his
weaknesses.
        Didn’t argue Miranda because? Waiver and initiation would be
complicated- waited a couple hours to talk after the “Christian burial” speech so
could be initiation but might not be- also where exactly was the waiver?

Kuhlmann v. Wilson: (1986) prisoner has a cellmate who has agreed with the
police that he would listen and report. Told not to ask questions. Police had
evidence of ’s participation but were seeking to learn id’s of accomplices. 
talked about the robbery, starting with the same story he had told the police.
Informant responded that the story didn’t sound so good. Eventually  changed
some of the details. ’s brother then visited and told  that family was upset
because they think that



                                        53
                                                           Criminal Justice I Outline
                                                                   Professor Green
                                                                        Spring 2002
McNeil v. Wisconsin:  arrested for burglary pursuant to a warrant issued in
another city- cops from that city came to get him and attempted to talk to him.
He refused to talk, but doesn’t request an attorney. He is then charged formally
and assigned counsel. Later the police came to visit  about another crime,
murder. He was read Miranda waived his rights and confessed.
   o 6th amendment is offense specific
           o  has been indicted for a specific charge
           o Miranda is broader because it protects different rights
        th
   o 6 amendment test for whether the crime is the same is the one for double
      jeopardy.




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