Crim Pro Outline – Spring 2006 – Caldwell I. Searches – If it is not a search, then it is admissible. The 4A prohibits only unreasonable searches. A) Extrasensory Devices Generally Katz (NAME): Federal agents placed a listening device against the wall of a public phone booth. There was no penetration of the booth, but they could hear the conversation from the outside via enhanced hearing devices. o Rule – 4A protects people, not property. There is a Two Prong Test as to when 4A protection applies: 1. Where the citizen has manifested a subjective expectation of privacy, and 2. The expectation of privacy is one that society accepts as objectively reasonable. o Impact – This case changed the way the 4A was viewed, as a search used to require trespassing onto property. Katz said: the 4A protects “people, not places.” o Expectation – This expectation is not only as to the cops, but to the world. Kyllo: Police scanned the outside of Kyllo’s home, believing he was growing marijuana inside. The scan revealed high levels of heat. That information led to the issuance of a search warrant and the discovery of a large indoor growing operation. o Rule: When the government employs a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and presumptively unreasonable without a warrant. o Reasoning: Was there a subjective expectation of privacy? Yes – he was in his home, nobody could see what he was doing inside unless they were invited in. Was that expectation reasonable? Everyone should expect privacy in their home. The home is the area where intimate activities of the family occur. Not looking at his home, but the heat around his home. o Impact – This case made clear that enhancement devices could not be used if they are not in the general public use. Things such as flashlights, arial camera, and drug dogs are in the public use, and are therefore not subject to 4A scrutiny. Miscellaneous Rules: o Common Enhancement Device – If it is not a common enhancement device, it is a search. If it is a common enhancement device used in an uncommon way, it is a search. Ex. dog to sniff drugs is common, but dogs to sniff kids at school are uncommon. Also, Kyllo emphasizes the importance of protection from police searches inside the home. B) Places Oliver (NAME): Police drove past petitioner’s house to a locked gate with “no trespassing” sign; walked around the gate along the road for several hundred yards. Officers eventually found a field of marijuana over 1 mile from the petitioner’s home. o Bright Line Rule: Activities that occur in open fields have no expectation of privacy. o Reasoning: Open fields doctrine – This could have been observed by regular commercial flight, and where something can be observed through regular commercial flight, it is unreasonable for someone to expect that what they have out in the open is not going to be seen. o Curtilage-area closely associated with the residence and the intimate activities of the family have taken place there. Rule: if police are not engaged in illegal conduct and they make Rx observations, then you prob don’t have a Rx expectation of privacy. So the expectation of privacy does not extend to activities that occur in or from open fields (ex. greenhouse may be part of curtilage if it’s in backyard so this is ok). This is different than the home, he had no expectation of privacy here. Greenwood: Police asked garbage man to turn over Greenwood’s trash to them. Police found drug paraphernalia. o Rule: When someone makes something available for public consumption, that thing is not longer subject to 4A protection. o Reasoning: They exposed their garbage to the public. It is common knowledge that plastic garbage bags on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public; moreover, they placed it at the curb with express purpose of conveying it to a third party who might have done with it whatever he wanted. o Scope: The outcome would have been different in this case had the Greenwoods left their garbage in the back yard, not on the curb, because people have an both subjective and objective reasonable expectation of privacy in their back yard. Analysis: Search o Was the government’s conduct a “search”? • Determined by: Katz Test. -Subjective expectation of privacy? -Is society willing to accept that expectation as reasonable? If no, the evidence is admissible/usable. If Yes, then ask: o Was the search reasonable? Seizures – Two types: Detentions and Arrests I. Seizures – A person is seized if a reasonable person would have believed that they were not “free to leave.” Factors determining a seizure: Mendenhall Test 1. Threatening presence of more than 1 officer. 2. Display of a weapon 3. Physical touching 4. Use of language or tone indicating that compliance may be compelled 5. Whether the police told the person they need not comply. o Mendenhall (NAME): Woman who fits a drug carrier profile flew from Miami to LA, and based on those factors, police asked to speak with them; took her to their office, searched her, and found all kinds of drugs on her person. Police didn’t tell her that she didn’t have to come with them. Rule: A person has been seized within the meaning of the 4A only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Impact: Set the guidelines to determine a seizure of a person. Citizen in Confine – Where a citizen is confined because of his own circumstances (bus, subway, elevator), the question is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. o Bostick: Bostick gets on a bus; cops with a gun, come on the bus and asked Bostick if they could search his stuff; there was no reason to search Bostick; Bostick let them search his bag and they found drugs. Rule: No seizure occurs so long as the officers do not convey a message that compliance with their requests is required. Held: Evidence admissible because the police didn’t point guns at Bostick or otherwise threaten him, and specifically advised Bostick that he could refuse consent. Impact: Basically, the SCt made the Mendenhall analysis a case-by-case analysis. Not a stop until the suspect submits – A non-physical show of authority is not a stop until the suspect submits. o Hodari (NAME): youths are huddled around a car when they saw the police, they took off. When he was running away, Hodari threw a small rock out of his pocket. The officer then tackled him. When was he seized? Held: Hodari was not stopped until the officer tackled him. Rule: If the person did not submit, they have not been seized. Reasoning: Mendenhall Analysis: • 2 officers, probably knew they were armed, no physical contact until tackle, use of language or tone – police wanted to contact them, police did not indicate that they had to comply. This is pretty weak to determine it was a seizure. -A seizure has not occurred unless the police conduct is so “intimidating as to demonstrate that a Rx person would have believed he is not free to leave if he did not respond.” II. Detentions – There are two types of SEIZURES: detentions and arrests. Detention: Police stop you based on some suspicion; less than probable cause. What is needed to justify a detention: Reasonable suspicion. • Reasonable Suspicion: particularized facts that gives belief that criminal activity may be afoot (not a very high threshold). Analysis – with a seizure, unless it is an obvious arrest, start with the detention analysis. o Stop and Frisk -Where a cop has a reasonable fear for his own or other’s safety, he is entitled for protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. (Terry) Stop: Permitted on proof of reasonable suspicion that criminal activity is afoot. • Encounter: When a police officer merely engages the citizen. Frisk: If a legal stop is made, an officer can conduct a protective frisk if the officer has reasonable suspicion to fear that the suspect is armed and dangerous. Requirements: • Reasonable suspicion that criminal activity is afoot (Stop) • Reasonable suspicion that the person is armed and dangerous. (Frisk) Terry v. Ohio (NAME): Cop was on force for 39 yrs; plain clothes; downtown Cleveland in afternoon; sees Terry talking to Chilton, stranger behavior; standing in front of a jewelry store; appears that they are casing the store; One walks past store, passes, and comes back; they do this a dozen times; then, they meet a guy in another location. Officer moves in and identifies himself as a police officer, asks for their names; Terry mumbles something. Officer grabbed Terry, spun him around, and frisked him. Discovered revolver. • Rule: Where a cop has a reasonable fear for his own or other’s safety, he is entitled for protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. • Reasoning: This rule is made for the protection of police officers. Their search must be limited to the outer clothing of the body and must be looking for weapons. Frisk allows cops to briefly investigate the circum to either confirm or dispel that there’s some criminal activity afoot. • Dickerson – If a police officer finds something (as in there is knife in the guy’s pocket and as the police officer goes to remove it, then a bag of dope falls out too) during a lawful pat down that is immediately apparent, the officer can seize the contraband. Doesn’t have to just be a weapon, could be drugs. -Rationale: There has not been any invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. (Frisk is only about cop safety so can’t go any further beyond looking for a weapon) Particularized basis – For a detention to be reasonable, there must be a particularized, objective basis for believing criminal activity is afoot. o Brown – Two men were in the alley with each other and began walking away. Officer saw what he thought (maybe) to be the sale of drugs. He thought the situation “looked suspicious”. He approached Brown and asked him for identification. Held: The fact that Brown was in a bad neighborhood, standing alone, it is not a basis for concluding that he was engaged in criminal conduct. Reasoning: The officer must be able to pull out facts that make the activity particularized, such as: high crime area, cop experience, urban alley, bizarre activity. Impact: This case laid out some of the criteria used to determine whether a detention is reasonable, and what cops can take into account. o Flight – Flight is a factor in developing reasonable suspicion. Identification/State Law – If an officer legitimately stops someone based on reasonable suspicion and that person does not comply with the state’s identification statute, the officer is justified to arrest the person. o Hibel – Police officer is responding to a call about an assault; found truck on side of road; driver had been drinking. Police asked him for I.D. Man acted like he wanted the police officer to arrest him; cop put handcuffs on him after asking for I.D. many times. Was there a reasonable suspicion: Yes • Found the truck matching the report, he had been drinking. Detention: Would a reasonable person have thought they could leave – no. • Once the person violated the statute requiring I.D. to be given, they then had probable cause to take him under arrest. Fingerprints – In the absence of PC or a warrant, investigative detentions at a police station for fingerprinting is violative of the 4A. o Hypo – Police take suspect to the station with reasonable suspicion, but without probable cause. They obtain fingerprints, and turn him loose. Thereafter, he is convicted based on the fingerprints. Held: the fingerprints are not usable. The extention of the Terry stop to the police station for fingerprints was unreasonable. Vehicle Checkpoints: When determining whether a vehicle checkpoint is reasonable, we must balance the public safety and the intrusiveness of the search. (Sitz Balancing Test) o Sitz (NAME): Sobriety checkpoints would be set up at selected sites along the state roads; all vehicles passing through them would be stopped. The stop was very short unless they suspected you for drinking. Sub Rule: When doing a vehicle checkpoint, the discretion of the police must be limited (they cannot pick and choose who to pull over, it must be predetermined). Reasoning: Here, the time and physical intrusiveness is minimal, but public interest is high. o Edmond: Police set up a vehicle checkpoint to interdict narcotics, not drunk drivers. Sub Rule: When determining whether a vehicle checkpoint is constitutional, the court must look at the “primary purpose.” Reasoning: The interdiction of narcotics isn’t distinguishable from the general interest in crime control, whereas the interdiction of drunk driving is done primarily for safety to motorists. Time Limits – In determining whether a detention was too long, courts should assess whether the police diligently pursued a means of investigation that was likely to dispel their suspicions quickly. o Look at the officer activity at the time and consider whether it was reasonable. o Sharpe: Police pull over two vehicles; Sharpe is held for 30-40 minutes while the DEA agent chased down his co-criminal. Was this too long? Held: Detention was reasonable. The police were engaged in reasonably diligent activity designed to clear up or develop the suspicious facts which justified the stop. Reasoning: The need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes is very important; there can be no bright line rule – rather, common sense and ordinary human experience must govern over rigid criteria. • Don’t ask: “Was there a better alternative?” Instead, look at what the officer did and whether it was reasonable. Car Searches: The passenger compartment may be searched and the driver frisked if the officers are aware of specific facts that would “warrant reasonable officers in believing that the suspect is dangerous and the suspect may gain immediate control of the weapons.” o Ornelas: An investigatory stop is permissible under the 4A if supported by reasonable suspicion and probable cause. o Long: Suspected drunk driver drove off the road, police came behind him to investigate. When the looked in his car, they noticed that he was drunk and that there was a large hunting knife on the floorboard. Scope: Officers can search the interior of the car immediately within the subject’s control, even when the police are holding the suspect outside the car. Their search is limited to what can be reached by the driver. III. Probable Cause – Based on facts within the personal knowledge of the officer or affiant sufficient to convince a reasonably cautious person that an offense has been committed or is in the process of being committed by the accused. o Hindsight Analysis – Viewed from hindsight, would a reasonably detached magistrate have issued a warrant? This is the informal analysis. Informants – Totality of the Circumstances Spinelli & Aguilar: o Rule: Created a two pronged test to determine whether an informant is reliable. 1. Determine whether the informant is reliable. a. We want a neutral magistrate making this decision, not the police. 2. Determine whether the informant has first hand knowledge, and do they have knowledge about what they are talking about? a. This was supplemented by Draper, which held that the knowledge prong may be ssatisfied by setting out detailed information supplied by the informant from which it may be reasonably inferred that she is speaking from personal knowledge and not mere rumor or conjecture. o Impact: This test is no longer completely used. Gates overruled it. However, it is still important in considering whether an informant’s information is reliable in the totality of the circumstances analysis. Draper: reliable informant gave a lot of information about Draper. There were many specific details, including that he was going to bring back heroine from Chicago by train on one of two days, that he would be carrying a tan zipper bag, and walked fast. o Holding: The agents were given so many details that they could “reasonably infer” that the informant had gained his information in a reliable way. o Reasoning: Used the Aguilar test: Snitch was reliable, had informed them of things before, even though they were paid. First hand knowledge: this was inferred because all the other information was correct. o Impact – supplemented the Aguilar/Spinelli test – added that the knowledge prong may be satisfied by setting out detailed information supplied Gates: Probable cause case as related to third parties: Anonymous letter to police giving lots of information, including specific address, and how the couple was transferring drugs from FL to IL. Police investigated. Warrant was issued and house searched. Issue: Was there probable cause to issue a warrant and search the premises? o Rule: The Totality of the Circumstances shall be used when determining the reliability of a tip. The two pronged test in Aguilar should help in making this determination. o Reasoning: The police had the letter, the address, the information in the letter. Permits reliance on anonymous tips by allowing a strong showing of the informants’ conclusions are accurate or remedy a weak showing as to her credibility. o Impact – this is the new test for probable cause with regards to third party. Florida v. J.L. – bus stop case. Held: Using the totality of the circumstances, the officer did not have reasonable suspicion to frisk him. IV. Arrest and Search Warrants Warrant: o Generally – When police have a warrant, there is a presumption that there is PC. Without a warrant, the prosecution has burden to prove that there was a warrant. o PC for Search Warrant – There must be a substantial probability that certain items are the fruits, instrumentalities, or evidence of crime; and that these items are presently to be found in a certain place. Requirements for Search Warrant to be valid: • Must be a sufficient connection from the iten sought to a particular place (just because we know someone deals drugs doesn’t mean we can search their car) • Must particularly describe the place to be searched, and person or things to be seized o NO Warrant Required for Public Arrests: For public arrests, an officer does not have to obtain a search warrant, even if one could easily be obtained; the officer can determine for himself whether PC exists to support the arrest. Post arrest determination of PC: Gerstein – Police arrested D without a warrant. • Rule: States must provide a fair and reliable determination of PC as a condition for any significant pretrial restraint of liberty by a judge either before or promptly after an arrest. o Knock and Notice: The default position is: When the police are executing a warrant, they have to knock and give notice of their purpose for being there. Failure to do so will exclude everything found. Rationale: Increased chance of violence without KN; Minimize damage to property. Wilson v. Arkansas – D sold informant drugs. Police obtained warrants to search D’s home and to arrest D. Police found the main door to petitioner’s home open. They opened an unlocked screen door and entered the residence, identified themselves as police officers, and stated that they had a warrant. Once inside, they seized contraband. • Rule: Generally, Knock and Notice is required. Exceptions: Police don’t have to knock if... • Cop Safety – if not knocking would increase cop safety, knocking is not required. • Obstruction of evidence – If evidence may be destroyed if the officers don’t enter with surprise, knocking is not required. Payton – Police entered apartment without a warrant to arrest D. They did not knock or give notice. They were not attempting to search. • Held: You have to get a search warrant to enter someone’s home to arrest them, absent exigent circumstances. This is violative of the Katz test. o Arrests in home of third party: D has standing to object to his warrantless arrest where it occurred in an apartment in which he was an overnight guest. Olson. o Misdemeanor – if there is a valid misdemeanor, there is PC to effect a custodial arrest. Exceptions to Warrant Requirement: o Incident to Arrest – Once under a custodial arrest, D loses all their 4A rights, police can search your body and the area within your lunging radius; Must be contemporaneous to the custodial arrest. • Rationale: 1) Protect the officers and 2) protect against the destruction of evidence. Scope: Search incident to arrest is limited to the lunging radius (area where D could have obtained a weapon or destroyed evidence). -This applies even if D is handcuffed. -We extend this “fiction” regardless of the specific facts of the case -Can even searched locked containers if they are in the lunging area. -Lunging radius generates from the point where the police first make contact. Ex: White collar crime D – if they arrest you in your office, even if they don’t think you have a weapon, they could search your desk because it is in your lunging radius. • Searches of the Body: Robinson: A police officer pulled over and arresting Robinson for operating an automobile without a valid permit. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket -Held: Search was reasonable. -Rule: Upon a custodial arrest, police have the right to conduct a complete body frisk, pulling out and searching all objects on the arrestee’s person, even if there is no factual risk of harm. -Rationale: Policy goals are 1) destruction of evidence and 2) threat to police. • Lunging Radius -Chimel: Local police officers went to Chimel's home with an arrest warrant for burglary. Upon serving him with the arrest warrant, the officers conducted a comprehensive search of Chimel's residence. The search uncovered a number of items that were later used to convict Chimel. State courts upheld the conviction -Held: Search is limited to the lunging radius, therefore the search of the entire house was unreasonable. -Application: Applies to vehicles also. Hypo: cop pulls you over for 75 on PCH. Asks you to get out and step back to rear of car. Officer notices a bulge consistent with a weapon. Frisks you and finds a weapon. Usable? • The cop doesn’t have to articulate why he was scared; Minimum suspicion is all that is required. Court will always err on the side of cop safety, balancing the intrusion to the citizen v. cop safety. Monitoring Activities – Once a cop effects a custodial arrest, the cop has the right to monitor activities of the custodial arrestees. Therefore, whatever comes to light under this monitoring will be usable (plain view). Temporal Proximity – Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. • Chadwick: Police arrest D. They take him and his luggage (containing marijuana) to the federal building. The chest remained under the exclusive control fo the officers at all times. An hour and a half after the arrest, police searched the chest without a warrant. -Held: Search not valid. -Rationale: Meets neither of the policy goals (cop safety or destruction of evidence) Search was not incident to the arrest; there was no exigency, making it unreasonable for the police to search without a warrant. Locker was not immediately associated with the arrestee, and retained greater privacy interest than any object on the arrestee’s person. They could have gotten into the trunk without the long time period, because it was within the lunging radius under Chimel. • Edwards: D caught breaking into post office; had paint chips on his clothes. Cops took him to jail, waited 10 hours, then took his clothes with the chips. -Held: Clothes/Chips are usable. This was evidence capable of being destroyed, and therefore the police were justified in taking it, even with the 10 hour period. He knew there was something about this clothing too that they wanted. • Cupp: Man voluntarily came in for questioning about the murder of his wife. He had a dark spot on his finger. Police asked if they could have a sample of the stuff on his fingernails. Police took the samples against his will without a warrant. -Analysis: Search: Yes. He had a reasonable expectation of privacy Warrant – No. Therefore, we have to go to a recognized exception. (Chimel/Robinson doesn’t work because he was never under custodial arrest) Exception: Exigency -Destruction of Evidence. Inventory-Impounded Items/Personal Effects – It is entirely reasonable for police, incident to an incarcertation, to search a person’s belongings as part of a reasonable administrative procedure. -Policy: Chimel isn’t the justification anymore. Protection of Property Protection of police against false claims Protection of jail inmates against weapons. Verification of suspects identity • LaFayette: D arrested and taken to police station. D carried a shoulder bag on the trip. Once at the station, he was taken to the booking room, where he was ordered to empty his pockets and place his things on the counter. They found drugs in the pack. -Held: Search was reasonable because police can search the personal effects of incarcerated D’s. • But see Chadwick – In Chadwick, the search was done to find out what was in it, not pursuant to inventory. Hypo for analysis: Cop stops someone, walks up to car and smells weed. • Smell usable: Yes – Katz. -Now we have PC. • Can police get the people out of the car and make them stand on the side of the road: Yes. -Analysis – was the conduct of the police reasonable. Yes. Also, it fits into the two goals of Chimel – protection of officers and destructability of evidence. • Can officer grab the flight jacket of a passenger? Yes. The original arrest took place in the car – there are radiating point. This is a bright line rule (Policy: balancing the invasion of privacy v. cops knowing what they can do. o Plain View – (not really an exception, but an extension to the SW) Subsequent to a justifiable prior intrusion, if the police are situated in a place they have a right to be and come across evidence which they have PC to believe to be incriminatory, the officer may seize it. • Rationale: The heart of the 4A is already complied with. The extra intrusion of seizing an object in plain view is not that great. The officers should not have to shield their eyes. Scope – • Officer must be within the scope of lawful activity – the officer must be lawfully located in a place from which the ofject can be seen, and must also have a lawful right to access the object in order to seize it. -Ex: Officers see contraband through a house window. Can they seize it? Not without an exception to the warrant rule. • Only allows for warrantless seizures, not warrentless searches. -Ex: police suspect a briefcase in plain view of containing incriminating evidence. Police must obtain a search warrant to open the case, but can seize the case if they have PC to believe that the briefcase contains incriminatory evidence. • PC required: PC must be immediate, apparent, and without necessity of a further search. -Hicks – officers entered the apartment of a man after a bullet was fired through its floor injuring a man. The officers were lawfully in the apartment. Officers noticed some new stereo equipment in the corner, and suspecting the components were stolen, the officers moved them to get the serial numbers. This information proved that the stereos were stolen. Held: Plain view is inapplicable because the officers engaged in a SEARCH to determine whether there was PC to seize the stereo. Rule: PC must be apparent upon visual inspection – no search is allowed to determine whether PC exists. Inadvertence: NOT required: The Plain view Doctrine applies even if an officer expected in advance to find the object in plain view. • Horton v. CA – Warrant authorized the search of D’s house and the seizure of the proceeds of a robbery. Officer also had PC to believe that the weapons used in the robbery would be found in the search, but the warrant did not authorize their seizure. The officer found the weapons in plain view. The state admitted that the discovery was not inadvertent. -Held: Weapons were properly seized under the plain view doctrine. Plain Touch – If an officer, acting in the course of lawful activity, can determine by touch that an object is evidence or contraband, he can seize the object. MN v. Dickerson. o Consent – If a person voluntarily consents, taking into account the totality of the circumstances, the police need no warrant to perform a search. Totality of the Circumstances – The question of whether a consent was in fact voluntary or was the product of duress or coercion, is a question of fact to be determined by the “totality of the circumstances.” • Schneckloth v. Bustamonte: Police stopped a car for a traffic violation. Officer asked if he couls search the car. Man agreed and opened the trunk. Later, he objected that his consent was involuntary because he never knew that he had the right to refuse the officer’s request. -Held: Knowledge of the right to refuse is a factor in voluntariness, but not dispositive. -Rule: consider the Totality of the Circumstances. Voluntary Factors: Factors to consider in determining whether the consent was voluntary • Age • Personality – level of education, level of intelligence, intimidation factor • Knowledge of the right not to be searched – If the police say “you have the right to say no,” that is a huge consideration. • Custody v. Non-custody – It is more difficult for a person in custody to give consent. Third Party Consent – A third party must possess actual or apparent authority over the premises for a consent to be valid. • Actual Authority – Consent of one who possesses common authority over the premises is valid against the absent nonconsenting person with whom that authority is shared. Rationale: Common use of the property by persons generally having joint access or control for most purposes. -U.S. v. Matlock: D was arrested in front of a house. A woman allowed the police to enter andd search, saying that she shared the house with D. Held: Consent was valid because the woman had actual authority to consent to a search of the premises. • Apparent Authority – The officer’s reasonable belief in a third party’s authority to consent validates the officer’s entry. Only applies to places that the third party might have common authority. -Illinois v. Rodriguez: D’s friend, who had, unknown to the officers, moved out a month before the search and retained a key without permission, consented to the officer’s search of the apartment. Held: consent valid. Rule: The officer’s reasonable belief in the friend’s authority to consent validated the entry. Burden of Proof – Prosecution has to prove consent. Hotels: Paying guests at a hotel room have the right to exclude others, even management. (Stoner v. California) Hypos: • Person consenting is very timid and slow, almost to the point of passing out when he sees the police. -Test: Must look through the reasonable objective stance of the police officer. -Held: Absnet some sort of manifestation of the intimidation, the police can probably enter. • Police tell D, “I have a search warrant.” In fact, there is no search warrant. -Held: No consent. If the police tell him that they have a warrant, he isnt’ really giving his voluntary consent; D feels like he has to say yes. • D is taken into custody, then police ask for consent to search. -Held: Maybe. No per se rules; consider the totality of the circumstances. • D is asked if officers can enter and look for a rifle used in a homicide. D says yes. In the medicine cabinet, the officers find cocaine. Cocaine admissible? -Rule: police must confine their searches to the places where the evidence sought could actually fit. -Held: No, cocaine is not admissible. If it were in plain view, they could seize and use it. • D is arrested and requests to speak with his lawyer before deciding whether to consent to a search of the house. Officer continues to talk to D and he consents to the search. -Held: Probably won’t come in. Once a person invokes their 6A rights, they have to waive them again before the police can search. Hardly ever happens. • Officer knocks on the door and is greeted by Grandma. Grandma gives consent to search the house. Grandma lives in the house with D but pays no rent. -Held: Grandma can give consent to search the house, but we cut it off to places where Grandma doesn’t have common authority. Therefore, the police cannot get into his room unless she has common authority over it. -Rule: Common authority rests on the mutual use of the property by persons generally having joint access or control for most purposes. • Wife answers the door and gives consent. D is on the street walking toward the house screaming “NO”. -Held: Right to exclude usually trumps the right to enter. Police will have to show that they had a right to enter, and will probably lose. • Chuck visits friend and no answer is at the door. He climbs through the window and observes numerous marijuana plants. Hears a knock at the door, opens it, and gives the police consent to search. -Held: No consent; Chuck is a trespasser. -Rule: Police have to have a reasonable basis to believe that the person who answers the door has authority over the house. • D’s wife consents to search of the house including D’s side of the closet and inside a locked safe in the closet. -Held: Consent valid -Rule: Spouses have no place that would probably be off limits, so she could consent to the search of a safe that is locked in the closet. o Exigent Circumstances – Police are not required to obtain a warrant if exigent circumstances exist (there must be PC). There are 3 types of exigent circumstances: Hot Pursuit – Officers in hot pursuit of a suspect do not have to obtain a warrant where one is otherwise required. -Rationale: Can’t expect cops to stop in the middle of a pursuit and obtain a warrant. This would allow the suspect to get away and render the warrant meaningless. Could allow for destruction of evidence or create a dangerous situation for police and the public. • Searching pursuant to Hot Pursuit: Officers can search the premises for weapons while the suspect is still at large, and anything uncovered under the lawful search is usable under the Plain View rule. -Warden v. Hayden: Officers pursued a robbery suspect into the suspects house. The suspect’s wife answered the door and the police entered to search for the suspect. In the course of looking for him, they also looked for weapons. Officers found incriminating clothing in the washing machine. Held: Warrantless search is justified by “Hot Pursuit.” • The officer had the right to search the washing machine to look for weapons because the suspect was still at large, thus, the clothes could come in under the plain view doctrine. -Limitations: Suspect must be aware of the pursuit. Rationale: The exception is based on the fact that the suspect may escape, destroy evidence, or create a threat to public safety. Therefore, the exception cannot apply where the suspect is ignorant of his being pursued. • Risk to Public or Police Safety: Even in the absence of hot pursuit, the warrant requirement will be excused if the police show an imminent risk to public or police safety. -Requirements: Risk must be substantial and likely to arise during the delay of obtaining a warrant. -Can’t be a minimal offense. • Protective Sweep – If during an in house arrest, police have a reasonable suspicion that others are in the house, associated with the criminal enterprise, and pose a threat, the police may make a protective sweep. Rationale: Cop safety. Scope: Police can search anywhere that a person or gun would be found. They can search until they find the other person in the house, then they must stop. Limiting Factors: • Reasonable suspicion to believe that others involved in the criminal enterprise • In house (outside house) arrest only • Must be concerned with cop/public safety (no destruction of evidence for protective sweep). -Buie: following an armed robbery, police obtaind arrest warrants for Buie and his accomplice, and went to Buie’s house. Buie was arrested upon emerging from the basement. The officers did a cursory search of the basement to see if anyone else was there and found incriminating evidence. Held: the reasonable suspicion standard was an appropriate balance between the arrestee’s remaining privacy interest in the home and the officer’s safety-based interest in conducting a protective sweep. -Outside the Home: If D is arrested outside the home, courts still allow police to do a protective sweep so long as there is a reasonable suspicion that someone within the house presents a risk of harm to the officers. Destruction or Loss of Evidence: If police have PC that there is contraband inside, and if the evidence is in the process of being destroyed or that destruction is imminent, they are allowed to enter without a warrant. • Factors to Consider: -Degree of urgency and amount of time necessary to obtain a warrant -Reasonable belief that the evidence is about to be removed -Possibility of danger to police guarding the premises while warrant is sought -Whether the police knows the suspect is on their trail. -Destructability of evidence -Gravity of the offense -Whether suspects are believed to have guns -Whether PC is clear or a close question -Likelihood that suspects may escape -Peaceful circumstances of the entry. • Freezing the Premises – If an officer has PC to believe that there is contraband and that it will be destroyed, the police can “freeze the premises” to make sure the contraband isn’t destroyed. -Police can enter to maintain the Status Quo. -Illinois v. McArthur – Officers accompanied D’s wife to the trailer where she had lived with D while she removed her belongings. She went to the trailer while the officers waited outside. After she came out and told the police that she had seen her husband place illegal drugs under the couch. The officers told D what his wife had said, and D denied admission into the house while standing on the porch. One officer went to get a warrant while another officer informed D that he was not allowed back inside unless the police were with him. Held: Warrantless seizure was reasonable. Rule: If the police have PC to believe that the trailer contained evidence of a crime and good reason to believe that D would destroy the evidence if they don’t keep him under surveillance, the police may freeze the premises. o Vehicle Searches – Bright Line Test: If an officer has PC to believe that there is contraband in the car, the officer can search the car without a warrant. Carrol/Chambers. • Rationale: 1) Cars are mobile. 2) Reduced expectation of privacy in the car. • Rationale for Searching: There is no difference between seizing and holding a car till it can be searched • Scope: Police can search anywhere in the car that the contraband could fit, including the trunk or the glove box. -Exigency is the issue, not where to search. Impound Searches: (Bright line rule) Cars seized and impounded by the police may be searched and inventoried in accordance with established inventory procedures. -Rationale: Police can secure and inventory the vehicle’s contents in order to 1) protect the owner’s property while it remains in custody, 2) protect the police from claims over lost or stolen property, and 3) protect the police from potential danger. -Requirements: Must be without police discretion; must be a pre-approved plan. • Opperman – Opperman’s car was illegally parked; police checked into it and found that he had some unpaid parking violations. Police impounded his car. There was no cause for believing that there was any contraband in his car. The police searched his car. In the glove compartment, they found marijuana. -Held: Search was reasonable. -Limitation: Can’t be used to create PC. Police can’t say – well, I think there is contraband in the car, so we’ll just take it in and do an Opperman search. Containers: Police may search any containers located in the vehicle, without a warrant, if they have PC to believe that it holds evidence of criminal activity. -Rationale: We don’t want police to have to make subtle distinctions about what they can and can’t open or search. • California v. Acevedo – D put a paper bag, containing marijuana, in his trunk. Police pulled him over, searched the trunk and the bag. -Held: Marijuana usable. -Rule: Warrant not required to search a container if police have PC to believe that it contains contraband. Traffic Stops • Pretextual Stops: Police officer may stop an individual if he has PC to believe that a traffic offense has been committed, regardless of the officer’s subjective motivations for the stop. Rationale: Court will not probe the subjective thoughts behind officers behavior. If they act reasonably, anythinjg that comes to light is usable. -Whren v. U.S. – Cops observed D acting strangely, then he broke a traffic violation. The police officer suspected D of criminal activity beyond the traffic violation. He pulled D over, and developed PC to search the car. Held: Search valid. Analysis: • Officer pulled D over based on PC that he committed a minor traffic violation. • Then, officer developed PC that D had contraband in the car. • After developing PC that D had contraband in the car, officer had the right to search the car (Carrol/Chambers) and any container in the car (Acevedo). • Minor Offenses: It is not a violation of the 4A for an officer to arrest an individual if he has PC to believe that the person has committed even a very minor criminal offense in his presence. Scope: Once they take you in, they can perform an Opperman search on your car. If you violate the law, they can take you into the station. -Atwater v. Lago Vista: Officer arrested a woman who was driving without a seatbelt and without buckling her two kids. These violations were misdemeanors that carry a maximum penalty of $50. Atwater was handcuffed, searched, and detained in a jail cell. Held: Search was not unreasonable. -Arrest Required to Search: The officer must arrest the suspect in order to be able to search suspects car. Knowles v. Iowa: D stopped for speeding, and given a citation. Then, pursuant to a state statute, the officer conducted a search of the car, finding marijuana. • Held: Evidence not usable. • Rule: Without PC, police cannot search a person’s car without arresting them. o Administrative Searches – Safety Inspectors: • Home: Absent an emergency situation or consent, a safety inspector must have a search warrant to enter the home; however, PC is not required to obtain a warrant. -Camara Warrant – shows owner the limits of the government’s regulatory inspection -Rationale: SW gives specific things they can look for; very limited. • Heavily Regulated Businesses: If a business is heavily regulated, the government doesn’t have to secure a warrant. -Skinner v. RR – Government, concerned with on the job intoxication of RR workers, required urine tests of workers involved in accidents and also authorized RR’s to administer breath and urine tests to certain employees. Held: No warrant required because the RR is a heavily regulated industry. Rationale: Court balanced the limited discretion by the RR during drug testing, the public interest served, and the diminished expectation of privacy that attaches to the information pertaining to the fitness of certain employees. • School Searches: Where there is an objective reasonable belief that school rules are being violated, school officials will be treated as action figures, but will not be required to obtain a search warrant. -New Jersey v. T.L.O.: School administrator had reasonable suspicion, but not PC, to believe that the student was carrying cigarettes in her handbag. Principle looked inside the bag, found cigarettes, rolling papers. Then, he searched the bag thoroughly, revealing a bag of marijuana, a pipe, some empty bags, and an index card of people who owed money. Held: School officials need not obtain a warrant before searching a student under their authority. Rule: No warrant required; however, the legality of the search depends on the reasonableness under the circumstances. Rationale: Balancing the student’s expectation of privacy against the schools need to maintain a good learning environment. III. Bodily Intrusions Generally: Searches into the body constitute searches and seizures implicating 4A warrant requirement (unless it falls into one of the exceptions). o Schmerber – D arrested at a hospital after receiving treatment for injuries suffered in a car wreck. At the direction of officers, a blood sample was withdrawn from petitioner’s body, revealing a BA level above the legal limit. Held: Extraction of blood usable. Rule: When searching into the body of a person, a warrant is required (must have PC), unless the search is justified by an exception. Here, the exception was the destruction of evidence. Analysis – Police are required to obtain a warrant. Here, the police had PC to believe that D was intoxicated. However, getting a warrant was impracticable and would have lead to the destruction of the evidence – the blood alcohol level would have decreased had they waited to secure a warrant. Limitations: o Shock the Conscience: if the police conduct in obtaining evidence without a warrant “shocks the conscience,” the evidence is excluded. Rochin – D swallowed capsules and police wanted to forcibly remove them. They choked him, but he still swallowed them. Then, the police took him to the hospital and had his stomach pumped. Cops argued destruction of evidence. • Held: DP rights were violated. • Rule: If the police conduct is “shocking to the conscience,” the DP clause of the 4A can be used to exclude evidence. o Major Bodily Intrusions: Surgery to remove evidence is not per se unreasonable, but the court requires a substantial showing justification to undertake that search. (Balance the risk to suspect with the need for the evidence) Application: Courts balance the need for the evidence v. potential harm to the suspect. Winston v. Lee: Gunman was shot in the chest, but got away. Police found suspect and he was taken to emergency room. Prosecuter wants the suspect to undergo surgery to remove the bullet. There was PC to believe that the bullet would connect him to the robbery. • Held: Can’t remove the bullet. • Rule/Rationale: Surgery procedures are not per se unreasonable, but require the court to balance the prosecutions need for the evidence v. potential harm to the suspect. -There is a significantly heightened privacy interest when the government has to engage in surgery – the court will require a substantial justification to undertake that search. Search must be “reasonable.” • Analysis: Police had PC to believe that the bullet was connected to the robbery, so they would have to obtain a warrant to remove it. But, since the risk to the suspect was much greater than the prosecution’s need for the bullet, the search is unreasonable. o Physical Characteristics: A person’s physical characteristics that are exposed to the public are deemed outside the scope of 4A protection. • Rationale: No person can have a reasonable expectation of privacy that others will not know the sound of their voice any more than they expect that their face will be a mystery to the world. U.S. v. Dionisio: Evidence of a voice recording had been obtained pursuant to court orders. 20 witnesses were subpoenaed, including D, to obtain voice exemplars for comparison with the recorded conversations that had been received into evidence. Each was advised that he was a potential D in a criminal investigation. • Held: This is not a search, the evidence is usable. • Rationale: People don’t have a reasonable expectation to privacy as to their voice (Katz). Handwriting – may be compelled from an unwilling D. Rationale: Handwriting samples, in contrast to the content of the communication they present, merely identify a physical characteristic. Limitation: You are not allowed to probe a person’s through process, however. You know a guy is forging checks and misspells the word flag: fleg. You can have him write in front a jury. Cannot have him write the sentence: “The flag is red, white, and blue”. • What year did you turn 16? This is a through process question. It may judge how a person speaks, but also show how they think. III. 1A, 5A, and 6A considerations 1A -Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances o Press -You CAN issue a search warrant against third parties that are not the actual criminal suspects (ex. newspaper that might have pictures of the crime) Media will try to protect their sources though 5A – Right to no self incrimination o Andressen v. MD – pursuant to SW, the D’s office was searched for specified documents pertaining to the fraudulent sale of land. Papers found, come into evidence. Held: Documents are usable; not self-incriminatory Rationale: He voluntarily committed the thoughts to paper, so there is no evidence of compulsion. These were obtained just like any other thing in a 4A search. o Hypo – Police come into an executive’s office with a subpoena, making him turn over the documents. Is this compulsion? III. Exclusionary Rule Generally: Evidence obtained in violation of the D’s 4A rights must be excluded from trial. o Reason for Rule: Exclusionary rule is designed to deter police from FUTURE illegal conduct. The harm occurred when the search occurred, and therefore it cannot be undone. o Application: Don’t apply the exclusionary rule if it’s application would not meet the rule’s policy goals. U.S. v. Leon: A judge issued a search warrant that was ultimately found to be without probable cause. After receiving the warrant, the police searched Leon’s residence and obtained large quantities of drugs. Leon moved to exclude the evidence because the warrant was not justified by PC. • Held: Evidence is excluded. • Rule: Per se rule – if a police officer gets a warrant, the evidence is admitted. -Exceptions: If the magistrate was misled by information in an affidavit that the affiant knew was false or would have known it was false except for reckless disregard of the truth. If the magistrate wholly abandoned his judicial role... such that no reasonably trained officer would rely on the warrant Facially deficient (failing to particularize the place to be searched or things to be seized – officers cannot presume to be valid. Standing to Assert: For a D to assert the Exclusionary Rule, D must have standing. The standing requirement assures that a D does not obtain exclusion of evidence unless his own personal 4A rights were violated. Rule doesn’t apply if the D trying to use the exclusionary rule did not have his 4A rights violated (reasonable expectation of privacy is the issue). Exclusionary rule does not apply if D claims that he was prejudiced “only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” o Analysis: To have standing to assert the exclusionary rule, D must have 1) a subjective expectation of privacy in the place searched or 2) the person must demonstrate that this subjective expectation is one that society would accept as reasonable. (Katz) Once standing is obtained, anything that flows from the violation can be excluded, whether the subsequent evidence was obtained in violation of the 4A or not. Rakas – Car with passengers was stopped and searched by police. Passengers sought to suppress a rifle and shells found in the glove compartment and under the front seat. They argued that they had standing to challenge the search of the car and the seizure of the incriminating items because they were legitimately on the premises. • Held: It doesn’t matter whether the D was legitimately on the premises, the court shall consider whether the D had a reasonable expectation of privacy to the searched premises. • Ex: Police may violate someone’s legitimate expectation of privacy by entering a house, engaging in a search, and yet the D would not have standing to object if he had no legitimate expectation of privacy in the premises. Overnight Guests: Olson – Police had probable cause to arrest Olson, who was staying at the home of a friend. Without a warrant, police entered the home and arrested Olson. • Question: Does an overnight guest have a legitimate expectation of privacy in a third party’s home? • Held: Evidence excluded. • Rule: Overnight guests have a subjective expectation of privacy in their host’s home that society is prepared to accept as reasonable, and therefore they have standing to assert the exclusionary rule. • Rationale: Overnight guests usually can use the whole house, and likely have some measure of control over the premises. They are staying at the place precisely for the purpose of obtaining privacy. Business Guests: Carter – D’s were arrested after a police officer observed them through a window bagging cocaine in one of the D’s apartments. D’s moved to suppress • Issue: Do visitors for purely business purposes have standing to assert the exclusionary rule? • Held: No standing; Evidence admissible. • Rule: individuals visiting a home for business purposes only (for a short period of time) do not have standing to assert the exclusionary rule. • Rationale: Factors to consider: The purely business nature of the transaction, the relatively short period of the visit, and the lack of previous connection between D’s and the host. Here, the circumstances did not justify an expectation of privacy that society is prepared to accept as reasonable. • Note: This case suggests that the SC would consider extending standing to assert the exclusionary rule to social guests who were not staying overnight. Ownership – A claim of ownership can be a factor in determining standing, but not enough alone. o Hypos X’s conversation with Y is illegally tapped. During course of conversation, X implicates D, who was not a participant in the conversation. • Does D have standing: NO. Even though the cop’s conduct was wrongful, and D was victimized, D’s 4A rights were not violated. X and Y have standing because their 4A rights were directly violated. Illegal arrest of A leads to seizure of narcotics in the home of B and the subsequent arrest of C at another location. • A – A doesn’t have an expectation of privacy in B’s house. However, but for the illegality as to A, we don’t get the stuff found in B’s house. -Rule: Whatever flows from the illegality as to A is suppressible by A, even though he had no reasonable expectation of privacy, the seizure directly flowed from the initial arrest. If whatever flowed from the initial arrest can be connected back to the initial violation, then the injured person has standing to assert the exclusionary rule. • B – Has standing because he has a reasonable expectation of privacy in his own house. • C – C does not have standing because his 4A rights have not been violated... the fruit rule cannot flow upward. -Violations: AB C. A gives an illegal confession and in the confession implicates B. • A – has standing because his rights were violated. • B – does not have standing because it was A’s rights, not B’s that were violated. A lawful traffic stop, all occupants of the vehicle are ordered out, police search under the seat and find contraband, and likewise contraband is located in the glove box and trunk. • Driver – Driver has standing • Passenger – We don’t really know whether the passengers have standing. This is a fact sensitive analysis. X owns the house; D is visitor; Y is visitor; Police arrived with an arrest warrant for X, after arresting X, they search D and Y. In Y’s purse, police find contraband. D immediately claims that the contraband is his. • Does Y have standing – yes; she has a reasonable expectation of privacy as to the contents in her purse. • Does D have standing to suppress the contraband – Can a claim of ownership give you the right to assert standing? -Rule: Claim of ownership will be a consideration, but not a determining factor. -Answer – we don’t know, fact sensitive. At a suppression hearing, D charged with possession of heroin is maintaining that he has standing to exclude because it is his dope, yet if he loses at the suppression hearing, and goes to trail, he will want to argue no possession. • Rule: A D’s suppression hearing testimony cannot be used against him at trial as an admission of guilt. • Rationale: Court found it intolerable that in order to assert his 4A right, he would have to give up his 5A right to self incrimination. • Impeachment: Statements in the suppression hearing can be used as impeachment evidence in the trial. (So, don’t put D on the stand). Fruit of Poisonous Tree – The Exclusionary rule applies not only to evidence originally obtained in an illegal search, but also to all evidence derived from the evidence obtained in the illegal search. o Limitations -Attenuation of the Taint and Independent Source (Inevitable Discovery) Attenuation of the Taint – 4 factors in trying to make the attenuation analysis helpful 1. Existence of Miranda factors -did we have a full on waiver of Miranda? Police have to get double acknowledgement when someone gives up their Miranda rights. 2. Temporal Proximity -the longer the time period between the illegal search/seizure and the obtaining of the evidence, the more likely that we are going to attenuate. 3. Presence of other intervening circumstances. Get fact specific. This is the “catch-all” • Ex: change of location, deliberative acts by the D, acts by third parties. 4. Purpose and flagrancy of the police misconduct. Look at “technical” violation v. “rubber hose” violations. The more serious the misconduct, the morel likely that it will taint the subsequently obtained evidence. • Ex: Pump Stomach. Independent Source – Allows the fruits of illegal activity to be admitted at trial if the Government can show by a preponderance of the evidence that the challenged evidence would be inevitably discover through means completely independent of the illegal activity. • But for test – But-for the violation, the evidence STILL WOULD HAVE BEEN OBTAINED. o Wong Sun – Federal agents broke into Toy's apartment without PC, handcuffed him. Toy made a statement implicating Yee in the sale of narcotics. Agents went to Yee, who surrendered heroin to them upon the officers order to do so. Yee stated that he had bought the drugs from Toy and Wong Sun. Wrong Sun was then illegally arrested, and he and Toy was arraigned and released pending a trial. Wong Sun then went to the offices of the Bureau of Narcotics, was interrogated. He was given his Miranda warnings, but confessed anyway. What did Toy/Wong Sun want to exclude -1) Toy sought to exclude the statement he made immediately after the illegal entry of his house, 2) both sought to exclude the drugs obtained from Yee, and 3) Wong Sun sought to exclude his confession • Toy – Toy’s statement was obtained after a violation of his 4A rights, and therefore was excluded. All evidence flowing from the violation (drugs turned over by Yee) are excluded as to Toy because they were the fruit of an illegal search. -Confession – The confession is admissible. Attenuation: • Wong Sun – A D’s 4A rights must be violated by the initial search before he can object to the introduction of fruits of poisonous tree. Although his arrest was illegal, the evidence (drugs from Yee) was obtained in violation of Toy’s 4A rights, not Wong Sun. Wong had no legitimate expectation of privacy in Toy’s apartment; the seizure of heroin invaded no right of pirvacy of person or premises of which Wong Sun was entitled to object. -Confession – The confession was obtained after Wong’s illegal arrest, and therefore should normally be excluded. However, the confession was ATTENUATED, because it took place several days (Temporal Proximity) and voluntarily (Miranda) returned to the officers (Intervening Circumstance). The link between the arrest and the statement had become so attenuated as to dissipate the taint. o Nix v. Williams – Iowa case. Held: Body was admissible. • ∏ could argue that the body would have decomposed. Rule: Inevitable Discovery (Independent Source) Doctrine o Hypo’s – Agents unlawfully enter D’s office and seize incriminating tapes of D’s blackmailing activity. Based on the information gained from the tapes, the agents secure a search warrant for D’s house, and seize more incriminating evidence there. • Standing: Yes – he has a reasonable expectation of privacy as to his office. • Tapes admissible – No. This is the direct fruit of an illegal search, and they are excluded. • Search Warrant Valid – No, the SW flows from the initial illegality, and therefore it is tainted fruit and will be excluded. Same as 1, but the information contained on the tapes had been garnered from a witness, who was in no manner related to the initial break-in. The subsequent search warrant was then based on both the information on the tapes and from the witness. • Search Warrant Valid: If Independent Source is enough to garner PC, then SW is valid. -Rule: If we have two pieces of evidence that gave rise to probable cause, we get rid of the tainted and see if the evidence obtained by the independent source would have given us PC. V is robbed and immediately notified police and gave a full description of D. D was illegally taken into custody several days later. III. Right to Counsel – D has an absolute right to have a lawyer present and represent you in a criminal proceeding (Either felony or misdemeanor with jail time). Trial: Evolution. o Powell: D’s charged with rape in a capital case. Counsel appointed right before trial. Rule: Where the accused is unable to employ counsel, the state has a duty to appoint counsel in capital proceedings. Effect: States now have to provide counsel in capital proceedings. o Johnson – Federal courts have to appoint counsel to indigent D’s in felony cases. o Gideon v. Wainwright (name): D charged with a felony; asked judge to appoint counsel for him. Judge denied his request because it was not a capital case. D conducted his defense, was found guilty. Rule: 14A fully incorporated the 6A right and accordingly required the state to make appointed counsel available to indigent D’s in all felony cases. Rationale: A person being denied of the assistance of counsel cannot be assured of a fair trial; the prosecution gets an attorney, so should the D. Effect: D’s accused of a felony have the right to state appointed counsel (Drew the line at felonies). Overruled Betts (states don’t have to appoint counsel). o Argersinger v. Hamlin (name): D charged with carrying a concealed weapon, misdemeanor. Petitioner denied counsel. Rule: All indigent misdemeanor D’s who face a jail term are entitled to appointed counsel. Rationale: 1) the 6A gives right to counsel in ALL criminal proceedings; 2) there are very serious consequences that can come withmisdemeanors. Effect: Expanded the rule in Gideon to include misdemeanors with jail time. Appeal o Monetary Impediments: The court will pay all of the costs associated with filing a proper appeal (felony or misdemeanor) if the D is indigent. There can be no monetary impediment. (Griffon v. Illinois) o Appointment of Counsel: There is a per se due process right to counsel on the first appeal from a criminal conviction to those who are indigent. Douglas v. CA (name): D wanted to appeal; CA said they would review the briefs and merit to decide whether they should appoint counsel. They would look for any colorful claim that would merit any further investment in this appeal. • Held: Douglas has a right to receive appointment of counsel for his first appeal regardless if the court believes his case had merit. Mandatory Appeals ONLY: There is no due process right for appointed counsel after the first appeal or certiorari. (Ross v. Moffitt). Other Costs: In determining whether to pay for trial costs, the court will consider: Benefit to D’s case Cost to state Probable value to the proceedings o Hypo: D in a death penalty case needs to interview a bunch of people for the penalty phase of the trial. Gideon is still prevailing law. Argersinger is still prevailing law. Multiple Representations: If an appointed attorney claims he will have a conflict, there is an absolute obligation to make an independent and sufficient inquiry to insure that the risk of conflict is too remote to merit extra counsel. o Scope: There is no duty for judge to initiate the dialogue for the conflict; but once the attorney claims conflict, the court has a DUTY to make an inquiry. o Hypo: Public Defender is appointed to represent 3 D’s in the same case. Problems – two might claim that the third is guilty; cross examination; etc. Self Representation: D has a right (pro se) to represent them self guaranteed by the 6A. (Faretta) o Limitations: D must voluntarily, knowingly, and intelligently waive his right to counsel. • D must be made aware of the dangers and disadvantages of self representation on the record and knowingly waive them before he can be found to have invoked his right to self-representation. (Faretta) • Once the trial court is assured D is knowingly and intelligently giving up the benefits of counsel, the court must accept his decision: Allow the D to conduct his defense to his own detriment. • Hypo: B4 trial, the judge questions D about his competency of law – finds that he doesn’t have enough knowledge of the law so withdraws his right to defend himself. -The judge decided that D didn’t intelligently and knowingly waive his right to counsel – therefore a public defender was appointed to him Standby Counsel: A state may, even over the objection of the accused, appoint a standby counsel to assist D if and when D requests help. (Faretta) • D can solicit advice – as long as it’s on his own terms • If Counsel initiates any contact with D, that may be grounds for new trial. o Considerations for the Court: Possibility of Deportation Result of Sentence Background Downsides to conviction (appeal may be limited by poor representation) o Selection of Counsel: Appointment of counsel for an indigent is within the complete discretion of the court. Indigent can’t pick the counsel they want. III. Ineffective Assistance of Counsel Strickland (name): Two Tests o Objectively Unreasonable -Lawyer fell below an objectively reasonable standard of representation o Prejudice to Defendant -Attorney’s errors made a difference in the outcome of the trial. Improper/lawless verdict: A D cannot be prejudiced by an attorney’s refusal to persuade the jury to decide the case in an improper manner. • Nix v. Whiteside: D’s attorney said he would disclose D’s perjury to the jury if he lied on the stand. D alleged ineffective assistance of counsel. -Held: Counsel not ineffective -Rationale: even if a jury had been persuaded by the perjury, a D has no entitlement to the luck of a lawless decisionmaker. Per Se Prejudice (Chronic) – There are certain circumstances where the attorney’s conduct was so unreasonable that prejudice is presumed. o Limited to egregious circumstances in which ineffective representation and prejudice were all but a certainty III. Pretrial Identification Rule: If there is a critical stage in the case after the indictment, there must be a lawyer present. Critical Stage: Anything post indictment can be considered critical stage. Line-ups/Show-ups: • Defined: -Line-up – actually having people line up with other persons with common characteristics, and the person has to make a comparative decision -Show-up – just bring one person in and see if the person can identify them. • Factors in determining admissibility of LU/SU evidence: -Opportunity observe D during original offense (quality of original observation) -Existence of discrepancy of pre & post lineup description (if huge discrepancy, this is a problem for letting pre-trial ID in) o Line/Show Up Rule: Wade Bright Line Test --Post indictment line-ups conducted without the presence of an attorney are per se excludable. Wade (name): D identified in court by two bank employees present during a bank robbery. After indictment, 7 months after the robbery, the witness picked him out of a line-up. Wade did not have counsel present at the line-up. • Held: Lineup excluded. • Rationale: Creates the opportunity to reconstruct the event and the presence of a lawyer will make cops behave. o Limitations: Kirby: witness identified 2 suspects at a police station show-up. This was pre-indictment. Counsel was not present during the identification. Witness then testified at trial, referring to the identification he made at the station house show-up, and also identified D in court. • Held: Testimony is admissible. • Rule: 6A right to counsel applies only to “criminal prosecutions” and thus was triggered only post indictment. • Rationale: The 6A only protects criminal prosecutions, and prior to indictment, during criminal investigation, there is no adversarial process. • Effect: D’s don’t have right to counsel pre-indictment. o Due Process Analysis: Anytime we have an identification, make sure to analyze whether D’s DP rights have been violated. Look at the SUGGESTABILITY and RELIABILITY of the identification. Especially for Pre-Indictment. Rule: It is a violation of DP if upon a consideration of the Totality of the Circumstances, the confrontation was unnecessarily suggestive and conducive to irreparable mistaken identification such that the identification is not reliable. Rationale: Even if there are suggestive aspects, they will be factors... but we have to look at the RELIABILITY of the IDENTIFICATION. Ask: Is this the kind of thing we want the jury to hear? -Factors of Reliability: Opportunity of witness to view the suspect at the time of the incident (quality) Witness degree of attention when viewing Accuracy of the prior description – see if the initial description matches the post line-up description Level of certainty at the time of the identification process. • Simmons v. U.S.: FBI agents obtained 6 pictures of the suspect from a relative, mostly group pictures, from which 5 bank employees separately identified the suspect the day after the robbery. -Held: Procedure was not unnecessarily suggestive. -Rule: Totality of the Circumstances (above). -Analysis: The photos were justified because it was a serious felony, the perpetrators were still at large, and it was important for the FBI to determine if they were on the right track. MOST IMPORTANTLY, there was little risk of misidentification – all employees got a good look at the suspect. Also, the photos were not highly suggestive. o Convenience: Failure to use a line-up is not excused merely because it would be inconvenient or difficult to assemble a group of persons physically comparable to the suspect. III. Confessions and Admissions Generally – there are 3 approaches to Confessions and Admissions: Due Process – Focus on the trustworthiness of the police conduct Right to Counsel – 6A Miranda -only applies if there is a custodial interrogation. Due Process – Court considers two things: 1) Police Tactics and 2) Voluntariness, leading to trustworthiness and reliability. Rule: Use the Totality of the Circumstances (Spano) to determine if the 1) police tactics were reprehensible and 2) if the confession was voluntary. There must be a link between the police conduct and the confession (Connelly). o Physical Coercion – A confession extracted by “brutality and violence” violates DP because it was not given voluntarily. Brown v. Mississippi – Sheriffs convinced that D is guilty; police hang him on a tree and beat him until he confesses. • Held: not admissible because of DP. • Rationale: The confession wasn’t voluntary (not trustworthy) AND police conduct was reprehensible. o Spano v. NY: a massive overnight interrogation of an indicted D, in which police ignored requests for a lawyer, used a “false friend” of the D’s to tell him that his failure to confess would cause the friend to lose his job. D was foreign born, uneducated, and had a history of emotional instability. Held: Interrogation violated DP clause. Rule: Use the Totality of the Circumstnaces and determine if 1) the police conduct was reprehensible and 2) if the confession was voluntary. • Police tactics – Were they so offensive that they should be thrown out? -Violent – no; 12 hours of questioning = bad; false friend = bad. • Voluntariness – leading questions = bad; 12 hours = bad. o Link between cop conduct and confession required Connelly: D walks up to cop, tells cop that he murdered the victim. Cop didn’t do anything to provoke confession. Cop then mirandized the suspect. D suffered psychological problems that weren’t apparent to the cop at the time. • Held: DP not violated. • Rule: There must be some connection between the cop conduct at the confession. • Analysis: -Police Tactics: Here, the cop did nothing wrong; the admission was completely voluntary. -Reliability: D confessed on his own, and while he had some mental problems, there is no strong reason to believe that the confession was untrue. The attorney for D would argue that he was crazy, the confession is not valid. • Miranda: Just because a case could apply Miranda, don’t forget the DP analysis. Right to Counsel: Post indictment, any conduct by the police “deliberately eliciting” information in the absence of counsel renders the confession inadmissible. o Massiah (name): Government put an informant, who had been indicted along with D, to elicit incriminating statements from him while the two were free on bail and awaiting trial. Held: D’s admissions were inadmissible Rationale: Knowing exploitation by the sate of an opportunity to confront the accused without counsel is as much of a breach of the 6A as the intentional creation of such an opportunity. Analysis: • DP – No defense here. -Police conduct = fairly passive. Police can lie about things (except about waiver of Miranda). -Reliability = this was pretty reliable information. • Miranda – he was not in custody, and not being asked questions. • Right to Counsel – Court analogized this case to Wade. -This is a critical stage; a lawyer would have made a difference because he would -Rule: Post indictment, any conduct by the police “deliberately eliciting” information in the absence of counsel renders information inadmissible. Application: When the snitch was sent out, the police were DELIBERATELY ELICITING information • This is a bright line test. • Critical stage. Kulhman v. Wilson: What if a cell mate wanted to tell the police the information he had obtained from D? • Held: That is okay – the police have not deliberately elicited information. Miranda Violation: When the suspect is in a custodial interrogation, look to Miranda. 5A violations. H. Miranda – Confessions are also excludable based on Miranda violations. Miranda: D arrested and charged with rape. Police questioned D for 2 hours, and he signed a written confession. o Rule: Prosecution may not use any statements stemming from “custodial interrogation” of a D unless it demonstrates the use of “procedural safeguards” effective to serve the privilege against self incrimination. o Procedural Safeguards: Accused must first be informed in clear and unequivocal terms that: • Anything said can and will be used against the individual in court • Individual must be clearly informed that he has the right to consult with and have an attorney with him during interrogations • If the individual can’t afford an attorney, one will be appointed for him Once these warnings have been made clear, if the individual indicates in any manner, at any time, prior to or during interrogation, that he wishes to remain silent, the interrogation must cease. Must be unequivocal invocation of the 5A or 6A. • Any statement taken after the person revokes his privilege must be excluded. • To waive – there must be an EXPRESS waiver of rights. Then, the police have to ask 2 questions: • Do you understand these rights? – Must get an unequivocal acknowledgement of that. • Do you wish to give up your rights and talk with us? -Must get a YES to both questions (or something VERY clear). The burden to prove waiver is on the state. We need to ANALYZE THE WAIVER. o Analysis: Is the person interrogating a state actor? Is the suspect in custody? Is the suspect being interrogated? Was there a valid waiver? KEY: Do this for every statement of the accused. • Why? Something could have happened between statement 1 and 2 to make the statement invalid. Custody: o Mathaison (Name): There was a residential burglary, victim thought D was involved. Police call D, ask him to come to the station. D walks himself down to the station. Once D is in the office of the Detective, Police told D that his fingerprints were there (this was a lie). Issue: Was he in custody? Held: No How to determine custody: Would the person feel deprived of his freedom of action in any significant way. Rationale: Most importantly, D wasn’t arrested; he walked to the station on his own accord. Coercive environment alone is not enough to trigger Miranda warnings, because “any interview” with the police will have “coercive aspects,” and police shouldn’t have to administer the warning to “everyone they question.” Voluntary accompaniment: No Miranda warnings are required when a D is interviewed at the stationhouse after “voluntarily agreeing to accompany the police” there. Interrogation: Interrogation includes not only express questioning, but also any words or actions other than those normally attenant to arrested custody, which the police should know are reasonably likely to illicit an incriminating response from this suspect. o Rule: RI v. Innis: D arrested for murder, placed in custody in a police car fo the drive to the station. One of the officers commented on the fact that there are a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and hurt themselves. The other officer said they should continue to search for the weapon; at this point, the D interrupted them and showed them where the gun was. Rule: Interrogation should be interpreted as words or actions that police should have known were reasonably likely to elicit an incriminating response from an average suspect. Held: This was not an interrogation. Reasoning: Police weren’t speaking directly to Innis; they knew nothing about Innis; they didn’t have any other way to get it in. Subjective Motivation of the cops: We don’t probe the subjective motivations of the cops. Blurtouts – Something voluntary that comes out of the mouth of the accused doesn’t come within Miranda. o Pennsylvania v. Muniz: Field Sobriety Test: The tests done during a field sobriety test are mostly admissible (as to “motor skills”). • Mental Calculations – If the officer is probing your mental process, it is testimonial and requires a waiver of Miranda. -Ex: Cop can’t ask you “how old were you in 1985?” That requires mental calculations. • Initial Observations – The cops initial observations are admissible. You have no reasonable expectation of privacy as to the way you look. • Videotaping: Admissible. • Attenant to the circumstances: Specific or General? -This is debatable. Caldwell tends to think that the court in Innis was speaking of “general” questions. Not specific to that crime (Were you drinking?). Booking Exception: D arrested for drunk driving, taken to a booking center, where police asked his “name, address, height, weight, eye color, date of birth, and current age.” He received no Miranda warnings before giving his answers, which were incriminating because he stumbled over the answers and gave incorrect information on some points. • Held: D may be interrogated, without Miranda warnings, concerning “biographical data necessary to complete booking or pretrial services.” This creates an exception to Miranda for questions pertinent to the suspect’s custodial status. • Rule: D may be interrogated without Mirdana warnings during booking unless the questions are “designed to elicit incriminatory admissions.” Intoxication Test: D was asked to perform 3 tests after his arrest for drunk driving. The officer and D had a short discussion concerning the tests, and the D made incriminating statements concerning his drunkenness. • Held: These statements were not the product of interrogation, and therefore no Miranda warnings were required as part of the police instructions. • Rationale: The police words directing the D to perform the sobriety test were not likely to be perceived as calling for any verbal response. o Blurting: Voluntary statements without custody or questioning are admissible. Followup questions: If the followup question is simply designed to illicit what the person initially intended to divulge, it’s not going to be an interrogation according to Miranda. Ex: D comes up to police officer and says: I killed her. Cop asks: Killed who? D says: Chris Smith. • First statement is admissible – no custody or questioning. • Second statement is admissible – He was arguably in custody... -Interrogation: The cop was trying to clarify the pronoun “her.” This isn’t an interrogation. Ex: What if the cop said: Why? • That would be an interrogation; goes beyond what the person intended to divulge. o Mid-Miranda Confession: Officers always have t finish the reading of Miranda; waiver is not given until you ask the two questions and get an affirmative answer to both. o Musing: If a person says – I don’t know if I should be talking without an attorney, is that an effective waiver? Rule: Once we have gotten a Miranda Waiver, it has to be an unequivocal invocation of either the 5A or 6A. • There is no duty for an officer to clarify an equivocal statement. o Exception: Undercover Police officers -Illinois v. Perkins: Two informants posed as inmates in order to uncover evidence of the D’s involvement in a murder. They invited him to help plan a jail break, and one of them directly asked him if he had ever “done” anybody. The D then told them the details of his involvement with the murder. This is Pre-Indictment (he was being held in another jail for separate charges). • Held: Miranda warnings not required when suspect is unaware that he is speaking with law enforcement officer. • Rationale: Questioning by undercover police agents does not “implicate the policy concerns underlying Miranda. There must be interplay between the custody and the interrogation to trigger Miranda protections. • Rule: If the reasoning behind the Miranda rule isn’t fulfilled, twe aren’t going to exclude the evidence. • Analysis: -Custody: yes. -Interrogatino: yes. -Admissible: Yes. Policy behind Miranda: Designed to prevent the coercive nature fo the police dominated interrogation. (Voluntariness and police tactics) -Does this further the policy goals of Miranda: No. These statements were voluntary and trustworthy There is no coercive aspect of the police dominated interrogation. General to Specific Analysis o Escobedo – This is a Fact Sensitive Analysis: D arrested, brought to station, and questioned. The D made requests to see his attorney. Attorney asked to see his client. Police denied all requests, and the D confessed. Held: Once you go a general inquiry to specific focus of interrogation as to a specific crime, you have crossed a mythical line where you have a right to counsel. Closely Related Charges: 6A right to counsel is offense-specific; once the police have you in a custodial interrogation, they can ask you about other crimes without an attorney present. o Texas v. Cobb: D confessed to police; at the time, he had been indicted for a burglary of the victim's residence. Police also suspected that he was the person who murdered the people in the house. Does Messiah preclude the fruits of the interrogation for murder charges Held: 6A doesn’t extend to closely related charges; the 6A is offensespeccific Once the police have you in custody, they can ask you anything they want. o Moran v. Burbine: D retained at police station, waived his Miranda rights. Police deliberately failed to inform him that an attorney retained by his sister was calling the police station, asking to be present during his interrogation. Police also told the attorney that D would not be interrogated, then proceeded to interrogate him in her absence. Held: D’s waiver of Miranda warnings was valid. Rationale: Police treatment of counsel was irrelevant under Miranda; Miranda rights must be invoked by the suspect. The suspects waiver was sufficiently knowing, even without knowledge of his counsel calling. Once he had received his Miranda warnings, he had all the information required by Miranda to produce a valid waiver. The court is reluctant to expand the warnings that must be given. The current warnings strike the correct line between the interest of the citizen to be free and the interest of the state in obtaining reliable evidence. Fruit of a Miranda Violation: o Consecutive Confessions: Oregon v. Elstad: Elstad confessed in his living room without being given a Miranda reading. 1 hour later, he was taken to the station, given his Miranda warnings, and confessed again. • Held: First confession excluded; Second usable. • Reasoning: Attenuation. It had been 1 hour between the confessions, Miranda was re-read and re-waived, it was at a different location and the conversation was no longer casual. -Without purpose or flagrancy in the police misconduct, there is no coercive aspect, so excluding doesn’t get to the policy goals in Miranda. • Rule: Police don’t have to inform suspects that their prior admissions may not be admissible. Missouri v. Seibert: Deliberate police protocol was to not initially advise of Miranda, then go to Miranda and see what they could get in the second one. • Held: Excluded. • Rationale: There is no attenuation. -Temporal Proximity: This was a continuous process, there was no discernable break between the violation and the good confession. -Fresh Miranda: We have a fresh administration of Miranda and a fresh waiver. -Intervening Circumstances: There was no time for anything to develop. -Reprehensable behavior of the Police: Their behavior was designed to get around Miranda, and therefore it was very reprehensible. o Tangible Evidence obtained in violation of 5A – Patone: In his home, prior to a full reading and waiver of Miranda, D was asked by police where the gun was located. He told them where it was. • Statement Admissible -Held: Statement is not admissible. -Rationale: D was in custody and being interrogated. • Gun Admissible: -Held: Gun is admissible. -Rule: If the initial violation is a 5A violation, and the thing that ultimately develops is non-testimonial, it will be admissible. -Rationale: The policy set forth by Miranda is to protect the testimonial part of the 5A. This was done by suppressing the statement. If we extend Miranda protection to non-testimonial evidence, the rule won’t reach the policy behind Miranda in the first place. o Impeachment: Statements taken in violation of Miranda may be used to impeach witnesses. Silence -Doyle: the D’s testified that they had been “framed” by another participant in a drug sale. However, they did not mention this excuse when they had been arrested and given Miranda warnings. The prosecutor sought to impeach the D’s with their post-arrest silence. • Held: Using silence to impeach is improper. • Rule: The fact that a D remains silent is absolutely excludable Statements in violation: Statements taken in violation of Miranda CANNOT be used during the prosecutions case in chief. Exigent Circumstances: o Public Safety Exception: Police may ask questions reasonably prompted by a concern for public safety without first advising a ssuspect in custody of the Miranda warnings. Hypo: D tries to rob store. Police grab him, handcuff hinm, and ask him where the gun is. -Issues: Does he have to be given Miranda warnings? -Held: No. -Emergency – Must be a real emergency. This is a fact sensitive analysis. • Analysis: -Statement – admissible. This was while D was in custody, and while an interrogation was pending. However, we’re going to allow it based on public policy – Safety and interest of the police and the public. Under the circumstance, the cop conduct was not unreasonable. -Gun – Admissible. Demanding to know where the gun was was reasonable due to the emergency. Protection of police and public. However, it is also not testimonial, and therefore would be admissible anyway (unless the police violated DP). 6A Invocation – Reinitiate Questioning: If a D asks for an attorney (invoking 6A), the D must reinitiate the questioning himself for any further interrogation to take place, and he has to be re-Mirandized. o Hypo: D arrested, gave a taped statement prior to Miranda. After the statement, he said, I want an attorney. Next day, two detectives force him to speak with them. They mirandize him, and he waives. Held: Neither confession admissible. Rule: D has to reinitiate Analysis: • If D invokes the 5A, go to attenuation. • If D invokes the 6A, the suspect must reinitiate the discussion for anything after the request for attorney to be valid. • Here, D asked for attorney, then was forced to speak. Therefore, the initial invocation was right to an attorney. Police Immunity o Immunity Required: Police must be offered immunity before they can be forced to give a coerced statement. Garrity: Cop investigated about fixing traffic tickets. They informed him that any testimony may be used against him in a criminal proceeding. They also informed him that he could refuse to answer, but if he did, he would be removed from office. • Rule: Police must be offered immunity before they can be forced to give a coerced statement. • Held: Statements cannot be used against them. • This may violated DP. o Loss of Job: Policeman cannot be fired for refusing to testify (invoking his 5A rights).