SEARCHES
Does the government action constitute a “search?” Was there a reasonable expectation of privacy? - No…Then no need to push through a 4th Amendment analysis. o Useable for PC, Reasonable Suspicion, and at Trial. - Yes…Then conduct 4th Amendment Analysis. Katz v. United States (TWO PRONG Katz analysis) 1. Did the person have a subjective expectation of privacy? 2. Was his subjective expectation of privacy objectively reasonable? Kyllo v. U.S. (Enhancement devices) 1. Is the device common? 2. Is it used in a common way? a. YES to BOTH – The device does NOT constitute a search. b. NO to EITHER – Device DOES constitute a search. Oliver v. U.S. (No Expectation of Privacy in Open Fields) - You cannot create an expectation of privacy where none exists. o Expectation of Privacy is only extended to the curtilage of homes. o If it can be seen from a regular, commercial flight…no expectation of privacy. California v. Greenwood (No Expectation of Privacy for trash placed out on curb) - The 4th Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of the home. Greenwood - Does snitch have (1) 1st hand knowledge and (2) is he reliable?
SEIZURES
A seizure occurs when a reasonable person would not believe that they were free to leave. - RULE: Would a reasonable innocent person feel so intimidated by the police conduct that they would not feel free to walk away? Mendenhall Test (Factors to Use to Determine whether Seizure occurred): 1. Threatening presence of more than one officer. 2. Display of a weapon. 3. Some manner of physical contact. 4. Use of language or tone indicating that compliance might be compelled. What if the person is confined by circumstance (bus, elevator, etc.)? o Only a seizure if a reasonable person would have not felt free to decline the officers’ request or otherwise terminate the encounter (Bostick).
California v. Hodari (Non-Physical show of Authority NOT a seizure until the suspect submits) - The suspect tossed his dope during a foot-pursuit by police. Court ruled that seizure did not occur until the cops physically tackled Hodari. Since he abandoned the dope prior to his seizure, it was admissible as evidence.
DETENTIONS
Reasonable Suspicion is an assessment of the whole picture by those versed in the field of law enforcement must yield a particularized suspicion that the part individual being stopped is engaged in wrongdoing. - OR particularized facts that give belief that criminal activity may be afoot. Police can conduct a detention based on reasonable suspicion. Terry v. Ohio (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. o Requires: Reasonable suspicion for stop (criminal activity is afoot) and Reasonable suspicion person is armed and dangerous. o “Terry Stop” is to briefly further investigation if the police officer has reasonable suspicion criminal activity is afoot. Manipulation of contraband can exceed the scope of permissible Terry search (pat down).
Do Tips Constitute Reasonable Suspicion: - Tips from know sources can be sufficient to give reasonable suspicion. - Anonymous tips can sometimes be used if the tip accurately predicts movements of the “suspect.” Running from the police can warrant reasonable suspicion (high drug area, runs when he sees cops, etc.)
U.S. v. Sharpe (Reasonable Amount of Time for Detention) - No per se time limit for a reasonable detention as long as police act diligently in their investigation. o Were the officers actions at the time reasonable? o Suspects actions can also contribute to the delay.
PROBABLE CAUSE
Draper v. U.S. (Defines Probable Cause) - Probable Cause (PC) – 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. Illinois v. Gates (Third Party Informants) - Totality of the Circumstances test should be used to determine reliability of a tip. - Ex. How detailed was the information given and how accurately did it predict movements of suspect? o Departs from Spinelli & Aguilar “two prong” test (Still should use in totality evaluation): Is the informant reliable? Does he have 1st hand knowledge? - If the PC statement contained lies, just “blue pencil” the lies and the rest is useable for PC.
ARREST, SEARCH WARRANT MECHANICS AND THEIR EXECUTION
A peace officer can arrest w/o warrant in public place for a misdemeanor or a felony committed in his presence as well as for a felony not committed within is presence if there was PC to make the arrest notwithstanding adequate time to get a warrant.
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o Arrest Warrant service requires good faith belief that suspect is home. Search Warrant Requirements: o Probable Cause to believe that certain items are the fruits, instrumentalities, or evidence of a crime; and that these items are presently to be found in a certain place. o Must particularly describe the place to be searched, and the person or things to be seized. o Timeliness – A search warrants MUST be served within 10 days…otherwise it becomes stale and anything obtained after that is excluded. o PC must still exist when the police serve the warrant. o Night time execution of warrant is presumptively unreasonable However, the warrant can be APPROVED for night service (must petition court for this)
EXCEPTIONS TO WARRANTS
Default position is that a warrant for a search to be reasonable. 1. Incident to Arrest - Robinson Rule: Once a person is under custodial arrest, they lost 4th Amendment protections. o 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.
During a PC arrest (with or w/o a warrant), the police can search the area w/in the immediate control of the ∆. Chimel v. California - Bright line rule and includes anything w/in ∆’s immediate control/lunging radius. o Applies even if handcuffed and includes vehicles and locked containers. - Must be functionally contemporaneous. o Once an accused is under arrest and in custody, then a search (of items reduced to exclusive control of police) made at another place, without a warrant, is simply not incident to the arrest. o However, you can go back to the original Chimel lunging radius to search 2. Plain View - 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. o PC must be immediate, apparent, and w/o necessity of further search. o Police cannot engage in a search to determine whether PC exists. o “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. 3. Consent - The choice to consent to the search must be a free and unconstrained choice viewed from perspective of police. o In evaluating voluntariness, you must take into account the totality of the circumstances (Ex. Education, age, environment, custody/non-custody, being told of “right to say no,” etc.) - Third party can only consent to search if they possess actual or apparent authority over premises. 4. Exigent Circumstances - Destruction of evidence o Must be in the process of being destroyed If police believe destruction is imminent (will be destroyed), they may simply freeze premises while getting warrant. - Hot Pursuit o 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. Suspect must be aware he is being pursued. - Protective Sweep (Maryland v. Buei) o The 4th Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief (reasonable suspicion) based on
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specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Requires: Reasonable suspicion that suspect is in the house Engaged in criminal enterprise Dangerous o Even if ∆ is arrested outside, police can conduct protective sweep of the house if it presents a risk of harm to the officers. - Imminent Threat to Life 5. Vehicle Searches - AUTO EXCEPTION o Immediate Search w/ Probable Cause Any place in car where we have PC to believe evidence/contraband would fit. Unlike Chimel (lunging radius) o Later Search w/ Probably Cause PC then we don’t have to worry about contemporaneous factor (Bright Line Rule) - Minor Violation Stop o Search is reasonable incident to arrest or inventory if driver is arrested (custodial). Cop must have intent to make the custodial arrest. - Inventory (South Dakota v. Opperman) o Cars seized and impounded by the police may be searched and inventoried in accordance with established inventory procedures. Here we do look at subjective intent of cops (trying to get around PC). - Container w/in automobile OK w/PC 6. Miscellaneous Searches - Safety Inspectors o 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. o Heavily Regulated Businesses: If a business is heavily regulated, the government doesn’t have to secure a warrant. - School Searches o 4th Amendment applies to searches conducted by school authorities. However, school officials can search a student without a warrant whenever it is reasonable under the circumstance. Reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. The search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Reasonable Suspicion alone is sufficient. **Opperman and Lafayette are the only times we evaluate the subjective intent of police. - (INVENTORY SEARCHES….vehicles and persons)
BODILY INTRUSIONS
Generally, searches into the body constitute a search and seizure and require a warrant. EXCEPTIONS: o Destruction of Evidence (BAC in DUI investigation) o LIMITATIONS: If the police conduct “shocks the conscious of the court” evidence will be excluded. Rochin v. California (predated exclusionary rule but conviction still reversed) Surgical procedures are not per se unreasonable, but require the court to balance the prosecutions need for the evidence against the potential harm to the suspect.
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No expectation of privacy in things exposed to public (physical characteristics, voice, handwriting). o However, you cannot probe the person’s thought process (Ex. making him write a word he misspelled on a forged check, or making him do math, etc.) A Search Warrant can be issued against 3rd parties that are not criminal suspects. o Ex. (Press) Newspaper who possesses pictures of crime. A suspect cannot be compelled to incriminate themselves by being required to furnish evidence in their own prosecution (Ex. Subpoena Duces Tecum). Attorneys generally get subpoena duces tecum because a search of their office would violate attorneyclient privilege as to other clients.
1st, 5th, & 6th AMENDMENT CONSIDERATIONS
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EXCLUSIONARY RULE
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Generally, everything that flows from a 4th Amendment violation (by the police) is excluded (Mapp v. Ohio). o Evidence gathered from a service of a search warrant will be admitted UNLESS: 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 Exclusionary Rule - A ∆ only has standing to assert a 4th Amendment violation if his rights were violated. He must have: o A subjective expectation of privacy o An objective reasonable expectation of privacy. Ex. Police illegally search A’s house but find evidence incriminating B. The evidence must be excluded in A’s prosecution but can be used in B’s prosecution because B lacks standing. - A mere passenger lacks standing to challenging the legality of a search of the automobile. (Rakas v. Illinois) - Overnight Guests have a reasonable expectation of privacy in their host’s home, so they have standing to assert the exclusionary rule. o However, guests who are only there for business purposes do not have standing. o Nor do those who are merely present with the consent of the householder may not. - Ownership – A claim of ownership can be a factor in determining standing, but not enough alone. - EVERY 4th Amendment violation analysis should begin with a discussion of standing as a pre-condition. Fruit of the Poisonous Tree - Generally, everything that flows from the Fourth Amendment violation is excluded (not only initial evidence seized). - EXCEPTIONS: o Attenuation of the Taint The exclusionary rule bars the admission of illegally seized physical and verbal evidence whether obtained during or as a result of direct exploitation of unlawful police invasions, but when the connection between such police conduct and the ultimate discovery of the challenged evidence becomes so “attenuated as to dissipate the taint” (of illegality), that evidence should no longer be barred as “fruit of the poisonous tree” (i.e., of the illegal conduct). Attenuation Factors: Miranda warning important but not sufficient Temporal proximity of illegal arrest to confession
Presence of other intervening circumstances. Purpose and flagrancy of the police misconduct o How bad was initial cop conduct? Shock the conscious? o 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. o Inevitable Discovery Rule Evidence obtained through an unlawful search or seizure is admissible in court if it can be established, to a very high degree of probability, that normal police investigation would have inevitably led to the discovery of the evidence. However, it excludes forensic evidence that exists between time the evidence was collected illegally and when the evidence would have been found legally. o Ex. Decomposition of human body.
RIGHT TO COUNSEL AND OTHER AIDS
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Indigent ∆’s have an absolute right to court-appointed counsel under the 7th Amendment for felonies and misdemeanors that might impose jail time (including suspended sentences). o Indigent defendants are those who cannot afford counsel (Judge decides whether ∆ is indigent). o This right to counsel extends to first appeal (but not to second appeal). Any monetary impediment must be waived (Ex. Court/Filing fees, etc.). Any monetary impediment to an appeal is a “Griffin Error” Factors to Consider for Indigent ∆ Trial Costs (Psychiatrists, ect.): 1. Benefit to the ∆ 2. Cost to the State 3. Probable value to the proceedings
Joint Representation, Pro Se Defense and Counsel of Choice Faretta Waiver – A state may not impose a lawyer on a defendant who wishes to represent himself if the defendant has made a knowing and intelligent waiver of his right to a lawyer. o The typical procedure is court-appointed standby counsel in case ∆ becomes disruptive and has to be removed from the courtroom. Then the standby counsel will replace the ∆ in defending the case. If the standby counsel hoists himself on ∆, it probably violates Faretta (IAC). However, it’s OK if ∆ asks standby counsel for assistance. o ∆ cannot waive council and later claim Ineffective Assistance of Council (IAC). - Choice of Counsel – Indigent ∆ has no right to replace court-appointed counsel (even at same cost). o Exception – Judge has discretion and might grant for compelling reasons. - Joint Representation – De Facto rule is it is generally bad for counsel to represent more than one ∆. o 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. Effective Assistance of Counsel - Strickland Two Prong Test for Ineffective Counsel 1. Did the performance of attorney fall below that of an average reasonable defense attorney? 2. Would it have affected the outcome? Courts are less likely to find retained counsel ineffective than appointed counsel. Courts will almost never find strategic decision to lose case to constitute IAC.
PRE-TRIAL IDENTIFICATION
∆ has right to have a lawyer present at any critical stage in the case after the indictment.
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Post-Indictment lineups without presence of counsel are Per-Se excludable. (Wade) o No right to counsel for pre-indictment lineup o No right to counsel for photo lineup (6-pack)
CONFESSIONS AND DUE PROCESS
Evaluate all suspect statements under either: o Due Process (Spano) o 6th Amendment (Massiah / Post-Indictment) o Miranda (Pre-Indictment) Spano Two Prong Test to Determine Due Process for Confessions 1. Was the police contact reprehensible? 2. Was the confession voluntary? o There MUST be a link between the police conduct and the confession.
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Confessions and the Right to Counsel - Massiah – Any POST-INDICTMENT conduct by the police deliberately eliciting incriminating statements in the absence of ∆’s counsel is per se 6th Amendment violation and therefore inadmissible. o Remember, the 6th Amendment right to counsel is offense specific and does not extend to offenses that are closely related factually to those that have actually been charged. Interrogations include not only express interrogation but also any words OR ACTIONS on the part of the police other than those normally attendant to arrests and custody which the police should know are reasonably likely to illicit an incriminating response from THIS suspect. o If an informant is used, ∆ must show that police and informant took more affirmative action than just listening. Ex. Informant in jail cell hears ∆’s incriminating statement, ADMISSIBLE. BUT, if police informant asks ∆ questions about crime (post-indict.), INADMISSIBLE.
MIRANDA AND ITS PROGENY
Miranda – The prosecution cannot use statements stemming from custodial interrogation of the ∆, unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. o After warning, police must ask the ∆ if he understood his rights and ask if he chooses to waive those rights. REQUIRES express consent! Burden is on the state to show waiver. (Preponderance of Evidence) o Ask four questions: 1. State Actor? 2. Custody? i. Basically same as detention standard - viewed from perspective of reasonable suspect. 3. Was there an interrogation pending? 4. Valid waiver? o Miranda also applies when there are words or actions on the part of the police that police should know are reasonably likely to elicit an incriminating response. o Must be testimonial. Booking info like height, weight, or DUI questions do not qualify. o Follow-up questions by police in response to a spontaneous confession are OK if asked to gather information ∆ intended to divulge anyway. However, if the follow-up questions are designed to elicit facts that ∆ had not originally intended to divulge, then Miranda applies.
o Miranda warnings are not required when the suspect doesn’t know he’s talking to a cop. Ex. Suspect gives voluntary statement to undercover cop in prison about unrelated crime. o A suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from voluntarily waiving his right and confessing after he has been given the requisite Miranda warnings. o Evidence that is otherwise inadmissible can be used to impeach a defendant’s testimony bearing directly on the crimes charges. But it can only be used to impeach credibility. o Someone’s silence in invoking Miranda Rights cannot be used against them in court. Otherwise, it would violate Due Process Clause of 14th Amendment. o Coerced statements are not voluntary, rendering them inadmissible. Statements of government employee after being threatened with the loss of his job if he refused to answer the questions cannot be used against him since they were not voluntary statements.