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Criminal Procedure Outline

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					                                    Criminal Procedure Outline

I. Introduction To Criminal Procedure

  A. Three major topics
     1. 4th Amend.  Searches and seizures
     2. 5th Amend.  Interrogation (privilege against self-incrimination)
     3. 6th Amend.  Right to counsel

  B. Issues
     1. Tension between govt and individual - competing interests
         a. Govt intruding into liberty and freedom of individual
     2. Compromises and balance changes
     3. Federalism

  C. Constitution and Bill of Rights
     1. Sources of criminal procedure
        a. Constitution
        b. Statutes and Rules of Crim Pro.
        c. States (in some states, there are more rights in state constitutions than in US Const.)
        d. Common law
        e. Local practice

  D. Incorporation Doctrine
     1. Bill of Rights - limit on fed govt, not limit on states. Designed to protect citizens from being
        deprived their rights by fed govt; didn’t worry about states at that time
     2. 14th Amend. (enacted 1868) – due process now applies to states

  E. Selective incorporation
     1. USSC on case by case basis decides which rights in Bill of Rights are so “fundamental to our
         concept or ordered liberty” that they must also apply to states – Duncan v. Louisiana (1968)
     2. Constitutional requirements binding on states:
         a. 4th Amend.
            (1) prohibition against unreasonable searches and seizures – Wolf v. Colorado (1949)
            (2) exclusionary rule requiring that the result of a violation of this prohibition not be used
                 as evidence against D – Mapp v. Ohio (1961)
              th
         b. 5 Amend.
            (1) privilege against compulsory self-incrimination – Malloy v. Hogan (1964)
            (2) prohibition against double jeopardy – Benton v. Maryland (1969)
         c. 6th Amend.
            (1) right to a speedy trial – Klopfer v. North Carolina (1967)
            (2) right to a public trial – In re Oliver (1948)
            (3) right to a trial by jury – Duncan v. Louisiana (1968)
            (4) right to confront witnesses – Pointer v. Texas (1965)
            (5) right to compulsory process for obtaining witnesses – Washington v. Texas (1967)
            (6) right to assistance of counsel in felony cases (Gideon v. Wainwright, 1963) and in
                 misdemeanor cases where imprisonment is imposed (Argersinger v. Hamlin, 1972)


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        d. 8th Amend.
           (1) prohibition against cruel and unusual punishment – Robinson v. California (1962)
     3. Not binding on States
        a. Right to indictment by a grand jury for capital and infamous crimes – Hurtado v.
           California (1884)
        b. Not yet determined whether 8th Amend. prohibition against excessive bail creates a right
           to bail (or whether it simply prohibits excessive bail where the right to bail exists) and
           whether its binding on states. Most state constitutions create right to bail and prohibit
           excessive bail.
     4. Constitutionalized – all federal Sup. Ct. standards apply to states as well


II. The Problem: The Bad Old Days

  A. Failures
     1. Scottsboro – 9 black men accused of raping white women; Ds claimed they were denied fair
        trial.
     2. Powell v. Alabama (USSC 1932) [Scottsboro in court]
        a. Sequence of events:
             (1) March 25, 1931 - crime occurred
             (2) March 31 - indictment
             (3) April 6 - trial began
                 (a) 2 lawyers appointed day of trial
                 (b) trial done in 1 day – all Ds found guilty
        b. Issue: Whether the 9 defendants (black men) were denied a fair trial, in violation of due
             process and equal protection of the laws under 14th Amend. in their trials for raping 2
             white women. Whether they were denied the right to counsel in violation of due process.
        c. Held:
             (1) D’s due process rights violated when trial court failed to give them reasonable time
                 and opportunity to secure counsel before trial.
             (2) In a capital case, where D is unable to employ counsel and is incapable adequately of
                 making his own defense b/c of ignorance, feeble mindedness, illiteracy etc, it is the
                 court’s duty, whether requested or not, to assign counsel for D to comport w/ due
                 process; that duty is not discharged by an assignment at such a time or under such
                 circumstances as to preclude the giving of effective aid in the preparation and trial of
                 the case.
        d. ** Note: 6th Amend. right to counsel didn’t apply to the states until 1963 (Gideon v.
             Wainwright)




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III.      FOURTH AMENDMENT                     [Search and Seizure]

       A. Overview and Text
          1. Text
             a. 4th Amendment  people should be free in their persons from unreasonable searches
                and seizures
             b. 3 Parts
                (1) Right of people to be secure in their persons – creates a right
                (2) Reasonableness clause - against unreasonable searches and seizures
                    (a) only protects persons, houses, papers and effects - thus may be limits
                    (b) unreasonable – depends on circumstances
                (3) Warrant clause
                    (a) warrants based on probable cause,
                    (b) supported by oath or affirmation,
                    (c) particular description of place to be searched or person to be seized
             c. Difference: search based on reasonableness and search based on warrant
                (1) Search based on warrant – judicial approval, external evaluation of probable
                    cause (judge determines reasonableness)
                (2) Search based on reasonableness – no external evaluation – no pre-search protection
                    (warrant not necessary if search reasonable)
                    (a) ex: cop on street can search person if based on emergency

          2. Fundamental question: What interest does the 4th Amend. does it protect? [Katz]
             a. Protects people, not places
             b. Eliminates requirement of physical intrusion

          3. 4th Amend. is limit on GOVT
             a. Restricts govt agent from enforcing the law, protects citizens
             b. Applies to govt conduct, not private conduct
             c. Applies to all govt agents, not just police or law enforcement
                 (1) e.g. school principals
             d. Geographical limits
                 (1) applies in US, unlikely to apply in American searches in foreign countries
                 (2) illegal residents in US – undecided whether it applies here
             e. Weeks (1914) (p. 59)
                 (1) D’s house searched separately by both state and federal law enforcement
                 (2) Held: Both searches violated 4th Amend. Evidence excluded in federal court. But
                     state agents not covered, so evidence obtained by state officials admissible in state
                     court.

          4. To have 4th Amend. right, person must have reasonable expectation of privacy w/ respect
             to the place searched or item seized.

          5. Searches and seizures must be reasonable to be valid under 4th Amend.
             a. Reasonableness usually means that police must get a warrant before conducting search
                (1) But there are exceptions where warrant is not required:
                    (a) No 4th Amend. violation (no standing) – Katz
                    (b) Consent


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           (c)   Exigent circumstances, hot pursuit
           (d)   Search incident to lawful arrest
           (e)   Automobile exception
           (f)   Plain view and touch
           (g)   Stop and frisk

6. Seizures of the Person (incl. arrests) must be reasonable to be valid under 4th Amend.
   a. Seizures of the person include governmental detentions of persons (incl. arrests)
       (1) arrest = police take person into custody against her will for purposes of criminal
           prosecution or interrogation
   b. Reasonableness of seizure of person depends on:
       (1) scope of the seizure
           (a) e.g. an arrest or merely an investigatory stop
       (2) strength of the suspicion prompting the seizure
           (a) e.g. arrest requires PC but investigatory detention can be based on reasonable
               suspicion
   c. Seizure of person occurs only when reasonable person would believe that she is not free
       to leave.
       (1) Requires a physical application of force by officer or a submission to the officer’s
           show of force.

7. Requirements to be a “search” under 4th Amend.
   a. If 4th Amend. applies:
      (1) creates a right
      (2) creates a cause of action in civil cases
      (3) requires certain things in compliance
           (a) i.e. warrant required from judge
   b. Exclusionary rule is primary remedy
      (1) but often there is no remedy - e.g. if police pulls over car and does illegal search but
           finds nothing, driver cannot sue
   c. Not covered by 4th Amend  warrant not needed and govt wins
      (1) no warrant b/c don’t need to comply w/ 4th Amend. requirements
      (2) Examples – Not covered by 4th
           (a) wired informant
           (b) pen register
           (c) location beepers
           (d) dogs
           (e) physical appearance
           (f) open field
           (g) garbage
           (h) camera
   d. Covered by 4th Amend  govt loses
           (a) Examples – Covered by 4th:
               i) wiretapping
               ii) search house
               iii) search curtilage
               iv) thermal imaging
               v) luggage squeeze


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                  vi) unusual aerial

   8. Search and Seizure – Analysis: (evidentiary S&S, not arrest)
      a. Does D have a 4th Amend. right?
         (1) Was there governmental conduct?
         (2) Did D have a reasonable expectation of privacy?
      b. If so, did police have a valid warrant?
      c. If police did not have valid warrant, did they make a valid warrantless search and
         seizure?

B. Fourth Amend.’s applicability to the States
   1. 4th Amend. prohibition against unreasonable searches and seizures applies to states.
      a. Wolf v. Colorado (USSC 1949) – 4th Amend. protection against unreasonable search and
          seizure is applicable in state court criminal proceedings. 14th Amend. prohibits arbitrary
          searches and seizures by state and local police.
          (1) 4th Amend. applies to all govt searches – federal, state, local. If violated, at least
              some of the evidence obtained will be excluded at trial.
          (2) But due process does not require state courts to exclude evidence obtained in
              violation of 14th Amend. – no exclusionary rule applicable to states. [BUT
              exclusionary rule now applies to states, Mapp v. Ohio]

C. Scope of 4th Amendment
   1. Search = governmental intrusion into an area where a person has a reasonable and justifiable
      expectation of privacy.
   2. Seizure = exercise of control by the govt over a person or thing
   3. Reasonableness = depends on circumstances
      a. Ex: certain searches and seizures are considered to be reasonable only if the govt first gets
          warrant authorizing the action, while other searches and seizures are reasonable without a
          warrant.
   4. Applicability of 4th Amend.
      a. When covered by 4th Amend, 4th Amend protections apply  search warrant or
          reasonable search required
      b. When NOT covered by 4th  no 4th Amend. protections  warrant or reasonable search
          NOT required

D. What is a Search?
   1. Search = Governmental intrusion into an area where a person has a reasonable and
      justifiable expectation of privacy. [Katz – Harlan concurrence]
   2. General Approach: Katz
      a. Searches conducted outside the judicial process, without prior approval by judge or
          magistrate (i.e. no search warrant) are per se unreasonable under 4th Amend, subject only
          to a few specifically established well-delineated exceptions. [Stewart holding]
      b. CURRENT TEST = Reasonable expectation of privacy ** [Harlan’s concurrence]
          (1) 2-prong test to determine whether police conduct constitutes a search:
              (a) person exhibited an actual expectation of privacy (subjective) , and
              (b) expectation that society is prepared to recognize as “reasonable” (objective)
          (2) Result:
              (a) If covered by Katz  search warrant required


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          (b) If NOT covered by Katz  search warrant NOT required
   c. Katz Facts: D charged w/ transmitting bets over telephone. FBI placed listening device
      outside the phone booth and recorded only D’s side of his phone conversations.
   d. Holding: Wiretapped recordings of public phone booth conversations of D were
      inadmissible in evidence in absence of a warrant authorizing the surveillance. Electronic
      surveillance of the conversations w/ others constituted a “search” and was thus regulated
      by 4th Amend. Absence of physical intrusion into the booth did not justify using
      electronic devices in listening to and recording’s D’s words, thereby violating the privacy
      on which he justifiably relied while using the booth in those circumstances. 4th Amend.
      claim cannot be turned into a general constitutional right of privacy claim.

3. Electronic Surveillance
   a. Katz – 4th Amend. restrictions apply to electronic surveillance, but see exceptions below
   b. Wiretapping public phone booth  covered by 4th Amend. (its’ a 4th Amend. search) –
      Katz

   c. False Friends  NOT covered by 4th Amend.
      (1) No reasonable expectation of privacy.
      (2) Hoffa – Hoffa had conversations w/ associate Partin, said incriminating things about
          himself, and Partin was going to testify against Hoffa.
          (a) Held: If you say something to someone, you risk that they will tell someone what
              you said. No 4th Amend. protection for conversations between yourself and
              another person.

   d. Wired Informant  NOT covered by 4th Amend.
      (1) Recorded conversations not constitutionally protected, can be used against D at trial
      (2) No reasonable expectation of privacy.
      (3) White (1971) – Govt used informant “wired” with a concealed transmitter to record
          conversations between him and D.
          (a) Held: 4th Amend. does not bar from evidence the testimony of governmental
              agents who related certain conversations which had occurred between D and
              wired informant. Electronic surveillance on govt informant recording
              conversations w/ D, without judicial approval, is not protected under 4th.
              Essentially followed Hoffa but put in terms of Katz
      (4) Examples of conversation between undercover agent and defendant:
          (a) what agent reports from his memory – not covered by Hoffa or White
          (b) agent’s notes – no 4th Amend. issue
          (c) agent has tape recording – no 4th Amend. issue
          (d) agent has radio/tape recorder in pocket – no 4th Amend issue
          (e) agent brings in tape recorder to house, then leaves, D’s conversations are recorded
              – covered by 4th Amend.

   e. Pen Register  NOT covered by 4th Amend.
      (1) No reasonable expectation of privacy in phone numbers dialed.
      (2) Smith (1979) – Pen register installed by telephone company to record numbers dialed
          from telephone at D’s home.
          (a) Held: The installation and use of a pen register does not constitute a “search”
              within the meaning of the 4th Amend, thus no warrant was required. Petitioner


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              had no actual expectation of privacy in the phone numbers he dialed, and even if
              he did, his expectation was not legitimate.

   f. Beeper (location tracking device)  generally NOT covered by 4th Amend.
      (1) No reasonable expectation of privacy when tracking movements in public.
      (2) Knotts (1983) – Without warrant, radio transmitter that emitted periodic signals to
          police was placed in drum purchased by D, and police monitored suspect’s
          movements from the purchase place along public roads to cabin of co-D Knotts.
          Held: This surveillance did not constitute a 4th Amend. search. There was no
          indication that beeper was used in any way to reveal information as to the movement
          of the drum w/in the cabin or in any way that would not have been visible to the
          naked eye from outside the cabin.
      (3) Exception: Beeper tracking w/in private residence IS covered by 4th
          (a) There is a reasonable expectation of privacy while inside one’s home
          (b) Karo (1984) – Tracking device that monitored suspect’s movements on private
              roads and in private home. Warrantless monitoring of beeper in private residence,
              a location not open to visual surveillance, violates 4th Amend. rights of those who
              have justifiable interest in privacy of the residence.

4. Sniffing Dogs  NOT covered by 4th Amend.
   a. Place (1983) – Dog sniff that discloses only the presence or absence of narcotics does not
      constitute a search within the meaning of the 4th Amend.
   b. Dog sniffs not covered by 4th Amend., thus not a search and govt can use them to sniff for
      things like narcotics. Not very intrusive, very limited kind of search, only looking for
      odors. The fact that its contraband does not limit the 4th Amend.

5. Physical Attributes  NOT covered by 4th Amend.
   a. Includes appearance, voice, fingerprints, smell, appearance
   b. Exceptions – covered by 4th
      (1) fingernail scrapings
      (2) blood and urine tests
   c. Hair sample – Sup. Ct. not yet resolved that question
   d. Fingerprints – not protected by 4th, but you must be arrested first, which is protected by
      4th
6. Open Fields, Curtilege, Aerial
   a. Open Fields  NOT covered by 4th
      (1) Open fields = any unoccupied or undeveloped area outside of the curtilage of a home;
          area more remote from the home and curtilage.
      (2) Oliver (1984) – “No trespassing sign” on fenced area around barn; police came and
          walked around the area looking for marijuana.
          (a) Held: No 4th Amend. violation b/c fenced in area considered “open field” in which
              there is no reasonable expectation of privacy. Entry of open field does not
              implicate 4th Amend.; open fields not protected by 4th Amend.

   b. Curtilage  covered by 4th
      (1) Curtilage = area immediately surrounding the home. Considered part of the home for
          4th Amend. purposes. Person has reasonable expectation of privacy in this area.
      (2) Boyd (1886) – Curtilage is area to which extends the intimate activity associated w/


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           the sanctity of a man’s home and the privacies of life.
       (3) Dunn (1987) – Centrally relevant consideration: Whether the area is so intimately
           tied to the home itself that it should be placed under the home’s umbrella of 4th
           Amend. protection.
           (a) CURRENT TEST to determine whether area is curtilage:
               i) proximity of the area claimed to be curtilage to the home;
               ii) whether the area is included w/in an enclosure surrounding the home;
               iii) the nature of the uses to which the area is put (where search happened)
               iv) steps taken by the resident to protect the area from observation by people
                    passing by.

   c. Aerial Surveillance of Curtilage
      (1) GR = What you can see from the air is NOT protected by 4th Amend.
          (a) NO reasonable expectation of privacy
          (b) If flying inside of normal, legal airspace over the home/area
          (c) Includes looking at curtilage and open fields from the air (w/in normal flight area)
      (2) Undecided: what one sees when flying outside of normal flight area
          (a) No formal USSC decision on issue but some cases indicate there is reasonable
              expectation of privacy when helicopter flies over home while flying outside of the
              normal flight area
      (3) Ciraolo (1986) – Aerial surveillance from airplane into D’s backyard (curtilage)
          which found marijuana plants was not a search and fell outside 4th Amend. protection.
          4th Amend. protection of the home has never been extended to require law
          enforcement officers to shield their eyes when passing by a home on public
          thoroughfares. 4th Amend. does not require police traveling in the public airways at
          this altitude to obtain a warrant in order to observe what is visible to the naked eye.
          What a person knowingly exposes to the public, even in his own home or office, is
          not a subject of 4th Amend. protection (Katz).
      (4) Riley (1989) – No 4th Amend. violation when police found illegal activity of D
          growing something in his greenhouse w/ aerial inspection, when the sides and roof of
          the greenhouse were left partially open to the public eye.

7. Garbage left for pickup  NOT protected by 4th
   a. Greenwood (1988) – Person does not have a reasonable expectation of privacy in
      garbage left outside the curtilage of a home for trash removal – not protected by 4th
      Amend. Exposing it to the public takes it out of 4th Amend. protection.

8. Abandoned property  NOT protected by 4th
   a. Abandoned property = property that has been relinquished by its owner

9. Camera  NOT protected by 4th
   a. Dow (1986) – Use of aerial mapping camera not covered by 4th b/c area photographed
      was not an area immediately adjacent to a private home, where privacy expectations are
      most heightened.

10. Thermal Imaging Device  Violates 4th Amend.
    a. Thermal imaging device aimed at private home from public street = 4th Amend. search
    b. Kyllo (2001) – Cops suspected D of growing marijuana so they used a thermal imaging


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           device externally to detect heat inside his private home from public street (more heat
           indicates indoor lamps necessary to grow the drugs).
           (1) Held: Use of thermal imaging device aimed at private home from a public street to
               detect relative amounts of heat w/in the home constitutes a “search” within the
               meaning of 4th Amend. that violates person’s reasonable expectation of privacy.
           (2) TEST – 4th Amend. Search when:
               (a) obtained by sense-enhancing technology
               (b) any information regarding the interior of the home
               (c) that could not otherwise have been obtained without a physical intrusion into a
                   constitutionally protected area
               (d) at least where the technology in question is not in general public use.

   11. Luggage Squeeze  Violates 4th Amend.
       a. Bond (2000) – Govt authorities’ pre-consent squeezing of passengers’ luggage on bus
          (after which they found drugs in D’s bag) was an unconstitutional “search” under 4th Am.

   12. Cell Phones and GPS  undecided
       a. No USSC decision on cell phone recording-type devices
       b. Most lower courts hold it is covered by 4th Amend.

E. What is a Seizure?
   1. Seizure = exercise of control by the govt over a person or thing;
      a. Liberty is interfered with to a substantial extent
      b. Seizure of person = generally an arrest
      c. Seizure of property = meaningful (or substantial) interference w/ an individual’s
          possessory interest in the property (Karo)
   2. U.S. v. Karo (1984)
      a. Beeper installed in a container of chemicals with the consent of the original owner and
          container is delivered to a buyer having no knowledge of the presence of the beeper.
          Issue: Does this constitute a seizure within the meaning of the 4th Amend.?
      b. Held: Actual placement of beeper into container did not violate any 4th Amend. right.
          Transfer of the can with beeper to Karo was not a seizure. Seizure of property occurs
          when there is some meaningful interference with an individual’s possessory interests in
          that property. Here, no one’s possessory interest was interfered w/ in a meaningful way.
      c. Dissent: Asserting dominion and control over the property–the power to use the property
          for its own purposes–is a seizure.

F. Standing to Raise 4th Amend.
   1. Introduction
      a. 4th Amend. is personal. [Katz]
          (1) Individual must have standing before he can bring a 4th Amend. claim.
          (2) Only when your rights are violated do you have standing to bring 4th Am. claim.
          (3) To have 4th Amend. right, person must have reasonable expectation of privacy w/
              respect to the place searched or item seized.
      b. Jones (1960) – Anyone legitimately on premises where a search occurs may challenge its
          legality. D here had automatic standing b/c he had possession of the drugs. BUT
          overruled by Katz.
      c. Alderman (1969) – Suppression of the product of a 4th Amend. violation can be


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       successfully urged only by those whose rights were violated by the search itself, not by
       those who are aggrieved solely by the introduction of damaging evidence. Rights assured
       by the 4th Amend. are personal rights, which may be enforced by exclusion of evidence
       only at the instance of one whose own protection was infringed by the search and seizure.

2. General Approach: Rakas
   a. Person can complain about evidentiary search or seizure only if it violates his own
      reasonable expectation of privacy.
      (1) D must demonstrate that:
          (a) he personally has an expectation of privacy in the place searched, and
          (b) his expectation is reasonable
      (2) Person has legitimate expectation of privacy any time:
          (a) She owned or had a right to possession of the place searched [Rakas]
          (b) The place searched was in fact her home, whether or not she owned or had a right
              to possession of it [Carter]
          (c) She was an overnight guest of the owner of the place searched [Minn. v. Olson]

   b. Rakas (1978) – Ds were driving car that was not their own when police pulled them over,
      searched the car and found gun. Issue: Whether the challenged search and seizure
      violated the 4th Amend. rights of a criminal D who seeks to exclude the evidence obtained
      from it. Do the passengers have standing to bring this 4th Amend claim? Jones principle
      applied.
      (1) Held: Petitioners do not have standing to bring this claim. They asserted neither a
          property nor a possessory interest in the car, nor an interest in the property seized.
          Passengers made no showing that they had any legitimate expectation of privacy in
          the glove compartment or area under the seat of the car in which they were merely
          passengers. Katz is appropriate test for standing. Passengers have no standing. Car
          owner does have standing b/c he has reasonable expectation of privacy in his own
          home or car. 4th Amend. is personal. Standing = Katz = personal 4th Amend violation

3. Apartments, Homes
   a. Person has legitimate expectation of privacy if the place searched was in fact her home,
      whether or not she owned or had a right to possession of it. [Carter]
      (1) Home = property owned, leased, or rented by person
      (2) Search of Third-Party Premises
          (a) Standing does not exist merely b/c person will be harmed by introduction of
              evidence seized during an illegal search of a third person’s property.
          (b) Carter (1998) – Ds were guests at someone else’s apartment, went there to bag
              cocaine and were seen through window by police officer. Held: No 4th Amend.
              violation b/c Ds did not have standing, only apartment tenant had standing. Ds, as
              temporary guests visiting apt. for brief business transaction, did not have a
              reasonable expectation of privacy while at the apt.
   b. Person has legitimate expectation of privacy if she was an overnight guest of the owner
      of the place searched [Minn. v. Olson]
      (1) even if it’s just for one night

4. Post-Rakas Cases
   a. People lawfully on the premises – determined on case by case basis


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           (1)Overnight guest has reasonable expectation of privacy [REOP]
           (2)Short-term visitor, i.e. for an afternoon or evening – no REOP
           (3)Visitor for commercial purposes (e.g. Carter) – less 4th Amend. protection
           (4)Prior connection w/ property – some reasonable expectation of privacy
           (5)Control over the premises – may have REOP
              (a) e.g. owner left the house in your control for a period
       b. Autos – Searches in cars
          (1) Less 4th Amend. protection than homes
          (2) Car owner has standing even if he is not using car when it is searched
          (3) Car owner loans car to friend – friend has REOP
          (4) Passengers must establish REOP in area that was searched to get 4th Am. protection
              (a) may have REOP when the car is being pulled over – passenger’s rights may be
                  violated by car being pulled over
          (5) Real estate does not automatically confer 4th Amend. protection
       c. Electronic Surveillance
          (1) If govt hears your conversations via electronic surveillance in your home:
              (a) You have standing to contest the validity of your conversations being taken
       d. ** NOTE: If you deny any interest in the property, you lose standing
          (1) e.g. if you deny that drugs are yours after they’re found in car and you get charged,
              you do not have standing to contest the validity of the search

G. Consent to Search or Seizure
   1. Introduction
      a. 4th does not apply when there is:
          (1) no standing or
          (2) valid consent to search
      b. Consent is one exception to warrant requirement
          (1) Most searches by police are consensual searches
      c. Waiver of rights (as comparison)
          (1) Standard for determining Waiver: [Zerbst]
              (a) knowing (D is told about the right)
              (b) intelligent
              (c) voluntary (refers generally to coercion – D aware of his rights)
          (2) Party asserting the waiver of the right has burden of proof to show waiver was
              knowing and voluntary
      d. Consent = must be voluntary and intelligent (Schneckloth)
          (1) knowledge of the right to withhold consent, while a factor to be considered, is not a
              prerequisite to establishing a voluntary and intelligent consent.
      e. Scope of Consent
          (1) Scope of search limited by scope of consent
              (a) BUT consent extends to all areas to which a reasonable person under the
                  circumstances would believe it extends.
          (2) Person consents to something within limits
              (a) can limit what the police ask to search
              (b) e.g. only allow them to search the living room but not the bedrooms
          (3) If police ask to search the house for drugs, they can search anywhere in the house
              where drugs could reasonably be found
              (a) this would be different if person consented to them searching house for dead body


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               – this would limit search to larger spots where body could reasonably be hidden
       (4) Consent can be withdrawn at any time
       (5) Multiple searches
           (a) ex: wife calls police, says husband is dead and she took pills and needs help;
               police came, took her to hospital, searched and found dead husband and then
               searched again the entire house; court held the first search for the dead husband
               was valid b/c she consented by calling police and telling them to come over b/c
               husband dead; second search was invalid b/c wife’s acts did not amount to
               consent to this search
       (6) Must have capacity to consent

2. Consent must be voluntary and intelligent (knowing not required)
   a. Knowledge of the right to withhold consent, while a factor to be considered, is NOT a
      prerequisite to establishing a voluntary and intelligent consent.
   b. Voluntariness is question of fact to be determined from all the circumstances.
   c. Factors court will consider to determine if consent was voluntary:
      (1) police - actions, language, guns drawn or not, how many officers
      (2) characteristics of the person consenting - race, ethnicity, language, background,
          mental capacity etc.
      (3) physical setting where consent given, time of day - e.g. was it custodial situation - in
          police car or in their home
      (4) number of requests
      (5) D’s knowledge of a right to consent (not determinative)

   d. Schneckloth v. Bustamonte (1973) – Cops pulled car over b/c headlight out, car owner’s
      brother consent to a search of the car, and cops found under seat stolen checks belonging
      to Bustamonte, another passenger in the car. (Standing not an issue here b/c Rakas not
      yet decided; if Rakas had been decided, Bustamonte probably would not have had
      standing). Issue: What must the prosecution prove to demonstrate that a consent was
      voluntarily given?
      (1) Held: When the subject of a search is not in custody and the State attempts to justify a
          search on the basis of his consent, 4th and 14th Amendments require that it
          demonstrate that the consent was in fact voluntarily given, and not the result of duress
          or coercion, express or implied. Voluntariness is a question of fact to be determined
          from all the circumstances, and while the subject’s knowledge of a right to refuse is a
          factor to be taken into account, the prosecution is not required to demonstrate such
          knowledge as a prerequisite to establishing a voluntary consent.

3. Third Party Consent
   a. In some circumstances, one person can consent to a search of another person’s property
   b. Co-occupant can consent to search in absence of other co-occupant if he has
      common use and control over premises
      (1) Matlock (1974) – 4th Amend. recognizes valid warrantless entry and search of
          premises when police obtain the voluntary consent of an occupant who shares
          authority over the area in common w/ a co-occupant who later objects to the use of
          evidence so obtained. It was reasonable to recognize that co-occupant has a
          reasonable expectation of privacy in the premises. Valid search where one co-
          occupant consents to search; second occupant not present and thus had no ability to


                                            12
          give consent

   c. Person possessing common authority over premises can authorize consent – Randolph

   d. Two parties present, one party objects and one consents to search  objection is
      valid and the search is invalid against the objecting party – Randolph
      (1) Evidence seized can be used against consenting party but not used against objecting
          party
      (2) Georgia v. Randolph (2006) – Estranged wife back at house w/ husband, police are
          called, are accusing each other of drug use, wife consents to search and husband does
          not; police search on wife’s consent and find drugs.
          (a) Held: A warrantless entry and search of premises when police obtain the voluntary
              consent of one occupant when the other, who later seeks to suppress the evidence,
              is present at the scene and expressly refuses to consent is invalid under the 4th
              Amend. Warrantless search of a shared dwelling for evidence over the express
              refusal of consent by a physically present resident cannot be justified as
              reasonable as to him (the refusing resident) on the basis of consent given to the
              police by another resident. Police must obtain warrant or get consent from both
              occupants, or consent from one when the other occupant is not present. Wife’s
              consent did not allow the police to search over the husband’s refusal of consent.

4. Apparent Consent
   a. Right to consent is personal and can only be waived by person who has the right.
   b. Any person with an apparent equal right to use or occupy the property may consent
      to a search – Frazier v. Cupp and Matlock
      (1) any evidence found may be used against the other owners or occupants

   c. Warrantless entry into home valid if officers reasonable believed that consenting
      party had authority to consent – Rodriguez
      (1) Search valid even if it turns out that the person consenting to the search did not
          actually have such right, as long as the police reasonably believed that the person had
          authority to consent
      (2) Objective test to determine reasonableness: whether reasonable person would believe
          there was authority to consent to that search.
      (3) Rodriguez (1990) – Domestic assault case; she called police to help her get stuff
          from boyfriend’s apartment – called it “our” apartment; police came and asked if they
          could search it, she said yes; police found drugs and arrested D; D challenged
          introduction of evidence they found there against him.
          (a) Held: Fischer did not have joint access or control for most purposes w/ respect to
              the apartment that was searched, therefore she did not have the common authority
              to consent to the search. BUT the warrantless entry into Rodriquez’s home was
              valid if the officers reasonably believed that Fischer had authority to consent.
              “Reasonableness” of search does not demand that govt be factually correct in its
              assessment that that is what a search will produce. It was a valid search b/c it was
              reasonable. Pro-law enforcement decision. All police must do is act like
              reasonably prudent person would act.




                                           13
H. Probable Cause and the 4th Amendment
   1. Introduction
      a. GR = warrants must be based on probable cause
          (1) Case law extended probable cause to reasonableness
          (2) Probable cause thus applies to warrants and reasonable searches
          (3) Probable cause based on totality of circumstances – Gates (majority)
      b. Probable cause is standard to be met before there can be a valid search or seizure
          (1) compromise between law enforcement and citizens’ privacy

      c. PROBABLE CAUSE TEST: Would a person of reasonable caution believe:
         (1) Arrest:
             (a) that crime was committed
             (b) by the arrestee
         (2) Search:
             (a) that item to be seized is at
             (b) the place to be searched
         (3) ** Objective test – does not depend on subjectiveness of officer

      d. What does probable cause mean:
         (1) How likely that crime was committed
         (2) Less than beyond a reasonable doubt
         (3) More than “reasonable suspicion” [Terry]
         (4) Gates – fair probability
      e. How courts describe probable cause:
         (1) Less then beyond a reasonable doubt
         (2) Less than clear and convincing and less than even a preponderance
         (3) Known facts based on trustworthy information to believe that this defendant had
             committed the crime
             (a) Search: known facts based on trustworthy information that would lead person of
                 reasonable caution to believe that evidence is where you claim it to be
         (4) Some call it ‘reasonable cause’
             (a) ** Note: “reasonable suspicion” is a different concept

      f. Warrant Procedure:
         (1) police will apply for warrant (police is the affiant)
         (2) application includes:
             (a) affidavit (sworn statement) - could be from informant
             (b) other written information
         (3) judge decides if application adds up to probable cause, if so will issue warrant
         (4) motion to suppress
         (5) ** Magistrate (who signs warrant) – any judicial officer and sometimes court clerk –
             does not have to be sworn in by judge

   2. Probable Cause and Govt Informants

      a. Aguilar–Spinelli Test – MINORITY TEST


                                             14
   (1) If govt uses confidential information to get the information for the warrant, to
       establish probable cause, it needs:
       (a) Basis of knowledge of informant
           i) search warrant must set forth underlying circumstances necessary to enable
               judge to independently judge the validity of the informant’s conclusion about
               the illegal activity
       (b) Veracity
           i) informant must be reliable enough to provide probable cause
           ii) officers must show that informant is credible or his information reliable
       (c) Corroborating circumstances

   (2) ** Note: Last prong (corroborating circumstances) added by Spinelli. Some states
       still use the old 2-prong Aguilar test,
   (3) Aguilar (1964) – Confidential informant, affidavit by police recounting what
       informant told him: “I have received reliable information from credible person that
       various drug are at location.” Judge issued warrant based on this. Sup. Ct. reversed
       b/c you need more than reliable informant. Aguilar presented problems, too exacting
       - then Spinelli.
   (4) Spinelli (1969) – Affidavit for warrant application stated that FBI knew D was a
       gambler, details of tracking his movement to different places, and that FBI was
       informed by “confidential reliable informant that D is operating a handbook and
       accepting wagers and disseminating wagering information by means of telephones
       which have been assigned these numbers” (FBI checked w/ phone company, those
       numbers were listed under name of Grace Hagen, not D’s name).
       (a) Held: Where the informer’s tip is a necessary element in a finding of probable
            cause, its proper weight must be determined by a more precise analysis. Just a
            simple assertion of police suspicion is not itself a sufficient basis for a judge’s
            finding of probable cause, and it cannot be used to give additional weight to
            allegations that would otherwise be insufficient. Here, the veracity prong failed,
            it’s not enough to just say that informant is reliable. This more of anti-law
            enforcement decision (Sup. Ct. more conservative here); law enforcement not
            happy. By 1983, Court leaning more towards pro-law enforcement.

b. Totality of Circumstances – MAJORITY TEST
   (1) Judge makes a practical, common-sense decision whether,
       (a) given all circumstances set forth in the affidavit,
       (b) including the veracity and basis of knowledge of persons supplying hearsay
           information (informant),
       (c) there is a fair probability that contraband or evidence of a crime will be found in
           a particular place.
       (d) includes corroboration of informant’s information
   (2) Affidavit does not need any particular fact about informer
       (a) must include enough information to allow the magistrate to make a common sense
           evaluation of probable cause
   (3) Gates (1983) – Anonymous letter from informant detailing Gates’ involvement in
       drug trafficking. Judge issued search warrant for house and car, found drugs and
       other contraband in both.
       (a) Held: Abandoned Aguilar-Spinelli “two-pronged” test. Court wants to encourage


                                        15
                  warrants, not discourage them, make them easier to get; pro-law enforcement
                  decision. Court says this test too high of a standard, too rigid to get warrant.
                  Instead, must use totality of circumstances approach. Test includes corroboration
                  of informant’s information – points more to his reliability.

       c. While Gates’ Totality of circumstances test is the new standard and majority rule, many
          states still use Aguilar-Spinelli test (minority rule)
          (1) these states think Gates takes away the rights of the accused, that Aguilar–Spinelli test
              gives more rights to the accused.

       d. Govt Informants
          (1) Informant or person who gives information to police officer applying for the warrant:
              (a) If informant is police officer  courts say he is per se reliable and credible
                  (adequate for probable cause)
              (b) If information comes from victim or actual witness  reliable and credible

I. Warrants and the 4th Amendment
   1. Arrest Warrants
      a. Introduction
         (1) Arrests must be reasonable to be valid under 4th Amend.
             (a) Reasonableness of seizure of person depends on:
                 i) scope of the seizure
                     a) e.g. an arrest or merely an investigatory stop
                 ii) strength of the suspicion prompting the seizure
                     a) e.g. arrest requires PC but investigatory detention can be based on
                         reasonable suspicion

           (2) WARRANT REQUIREMENTS
               (a) Issued by neutral and detached magistrate
               (b) Based on probable cause established from facts submitted to magistrate by govt
                   agent upon oath or affirmation (affidavit)
               (c) Particularly describe the place to be searched and items to be seized (application)

           (3) Warrant needed for both arrest and search
               (a) If no warrant, the only standard is reasonableness
               (b) Warrant  always need probable cause
               (c) Historically, at common law, warrant not necessary if there was probable cause –
                   different now

       b. Arrest in Public Place
          (1) Warrant not necessary only probable cause needed to arrest in public
              (a) Watson (1976) – Upheld a warrantless “midday public arrest.”

       c. Arrest in Home – Payton
          (1) Arrest warrant based on probable cause implicitly carries with it the limited authority
              to enter D’s home where there is reason to believe the suspect is within.
          (2) Payton Rule: Arrest in home = warrant required
          (3) Exceptions where warrant NOT needed for arrest in home (exceptions to Payton)


                                                16
       (a) Exigent circumstances (emergency)
       (b) Hot pursuit
       (c) Imminent destruction of evidence
           i) police have reason to believe that evidence will be destroyed if they don’t get
               in quickly enough
       (d) Prevent escape
       (e) Risk of harm or danger
           i) waiting would increase the danger
       (f) Police otherwise on premises
           i) are in the house already, they can act and make an arrest (arrest must be based
               on probable cause)
       (g) Doorway to home  considered more public than private, you’re not invading the
           house
           i) if you’re outside of the doorway = public place
           ii) if you’re inside the doorway = private home
   (4) In the above situations, it’s viewed as reasonable under the circumstances to arrest
       w/o warrant.

       (a) Payton (1980) – After intensive investigation, police had enough evidence to
           establish probable cause that D murdered V. Went to D’s home to arrest w/ no
           warrant. No response to knock on door, so forced entry into home; apt. empty;
           gun in plain view seized. D wants to suppress evidence from apt. Issue: Were the
           police lawfully in his house w/ probable cause? D challenging state laws that
           allowed police to enter private home w/o warrant and w/ force if necessary, to
           make routine felony arrest.
           i) Held: Police were illegally in his house, warrant was required to enter the
               house for the arrest; no exigent circumstances here. Thus could not use
               anything against him that they found in his house.
           ii) Absent exigent circumstances, the Fourth Amendment applies equally to
               seizures of property and seizures of persons in that person’s house without a
               warrant. An entry to arrest and entry to search for and seize property implicate
               the same interest in preserving the privacy and the sanctity of the home, and
               justify the same level of constitutional protection.

d. Arrest in Third Person’s Residence  Search warrant required
   (1) In the absence of exigent circumstances, an arrest warrant is inadequate to protect the
       4th Amend. interests of persons not named in the warrant when their homes are
       searched without their consent.
       (a) Police must have search warrant for home of 3rd party – Steagald
       (b) this protects privacy interests of the 3rd party

e. Exception to In-Home Warrant Requirement: Exigency
   (1) Minnesota v. Olson (1990) – Police made warrantless arrest of murder accomplice,
       claimed it was based on exigent circumstances.
       (a) Rule: A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or
           imminent destruction of evidence, or the need to prevent a suspect’s escape, or the
           risk of danger to the police or to other persons inside or outside the dwelling.
       (b) No exigent circumstances here. Arrestee was the accomplice to a murder who


                                        17
              drove get-away car, not the murderer himself; police had already recovered
              murder weapon; police knew accomplice was w/ 2 women and no suggestion of
              danger to them; it was 3 p.m. on Sunday, suspect was going nowhere; house
              surrounded by cops, he would be immediately arrest.

   f. Gerstein Hearing
      (1) Required in every state
      (2) 4th Amend. requires a judicial determination of probable cause as a prerequisite to
          extended restraint of liberty following arrest – Gerstein
          (a) D has 4th Amend. right to be released from detention if there is no PC to hold him
          (b) Thus D has right to a determination of PC
      (3) Hearing held after arrest but before trial
          (a) to determine if PC for detention exists
          (b) informal, ex parte, nonadversarial proceeding
          (c) Hearing must occur without unreasonable delay
          (d) Determines the legitimacy of taking D’s liberty temporarily

       (4) Gerstein hearing different from initial appearance (federal) or arraignment
           (a) the latter are administrative hearings to make sure D has lawyer, knows charges,
               deal w/ bail etc.
           (b) Some states combine the 2 hearings into 1 for Gerstein issue and administrative
               issues (arraignment)

   g. Executing Warrant: Force
      (1) When police have authority to make arrest, they can use reasonable force to affect the
          arrest.
          (a) Even when in that person’s home.
          (b) Reasonable force = non-deadly force
      (2) Unreasonable force violates 4th Amend.
          (a) Deadly force to stop fleeing felon  unreasonable unless there is some real
              indication that he is dangerous.
              i) Tennessee v. Garner – Police officer may not use deadly force to prevent the
                  escape of a fleeing felon, unless she has probably cause to believe that the
                  suspect poses a threat of serious physical harm, either to the officer or to
                  others, if she is not immediately taken into custody.

2. Search Warrants
   a. Introduction
      (1) General rule = search warrant required
          (a) Searches and seizures inside a home without a warrant are presumptively
              unreasonable
          (b) Searches and seizures must be reasonable to be valid under 4th Amend.
              i) Reasonableness usually means that police must get a warrant before
                  conducting search
              ii) But there are exceptions where warrant is not required

       (2) Exceptions where warrant not required:
           (a) No 4th Amend. violation (no standing) – Katz


                                           18
       (b) Consent
           i) Schneckloth v. Bustamonte (1973)
       (c) Exigent circumstances, hot pursuit
           i) Warden v. Hayden (1967)
       (d) Search incident to lawful arrest
           i) Chimel search (person–wingspan)
           ii) Maryland v. Buie (protective sweep)
           iii) Belton search (car–passenger compartment)
       (e) Automobile exception
           i) Carroll–Chambers–Carney
       (f) Plain view and touch
           i) Coolidge (1971) and Arizona v. Hicks (1987)
       (g) Stop and frisk
           i) Terry v. Ohio (1968)

b. Elements of a Valid Search Warrant
   (1) Oath or affirmation
   (2) Based on probable cause
   (3) Issued by neutral and detached magistrate
   (4) Particularity

c. Detail: Elements of a Valid Search Warrant
   (1) Oath or affirmation
       (a) affidavit and application
           i) affidavit could be signed by same person signing the application – must be
                sworn/under oath
       (b) can be done telephonically
   (2) Based on probable cause
       (a) established from facts submitted to magistrate by govt agent upon oath or
           affirmation
   (3) Issued by neutral and detached magistrate
       (a) magistrate cannot be involved in the search himself – Lo-Ji Sales v. NY
       (b) magistrate cannot just ‘rubber stamp’ warrant – i.e. he doesn’t read it, just signs it,
           or only glances at it for a minute before signing
   (4) Particularity
       (a) particularly describe the place to be searched and the items to be seized
           i) what police are authorized to look for
           ii) must be looking for particular things for which they have probable cause
           iii) does not require total specificity
           iv) allows police to use common sense in narrowing it down
       (b) intended to stop ‘general searches’
       (c) typographical errors (e.g. address numbers were switched) – usually court says
           this does matter, still a valid warrant
       (d) most 4th Amend. issues arise under this requirement

d. Lo-Ji Sales v. NY (1979) – Police got warrant to seize only the copies of the 2 films that
   the police already had. Magistrate signed it, then accompanied police on search and
   allowed them to seize many more films, magazines etc. that were not listed in the


                                          19
   warrant. After the search, magistrate went back and added to the warrant all the things
   they had just seized.
   (1) Held: If you’re involved in the search itself, you’re not neutral and detached. Fourth
       Amend. does not permit warrant to leave entirely to the discretion of the officials
       conducting the search to decide what items were likely obscene and to accomplish
       their seizure, nor does it permit open-ended warrants to be completed while a search
       is being conducted and items seized or after the seizure has been carried out.

e. Execution of Search Warrant
   (1) Intro.
       (a) Interpreted as combination of reasonableness clause and warrant clause
       (b) States may have laws w/ some standards for executing warrant
           i) e.g. search must be conducted in daylight hours
       (c) Officers must act reasonably while obtaining or executing search warrant

   (2) Knock and Announce Rule
       (a) Started as common law rule, now required by 4th Amend (Wilson)
       (b) Reasonableness requirement  4th Amend. requires a knock and announce by
           police before search
       (c) Police officers entering a home must knock on the door and announce their
           identity and purpose before attempting forcible entry.
           i) Wilson – 4th Amend. incorporates the common law requirement that police
                officers entering a home must knock on the door and announce their identity
                and purpose before attempting forcible entry.
       (d) Justifications for knock and announce rule: (Richards)
           i) protecting human life and limb, property, privacy and dignity
           ii) privacy of persons being searched – allow them to get dressed before police
                barge in
           iii) police safety

      (e) Justifying a No-Knock Entry
          i) 4th Amend. does not permit blanket exception to knock and announce
              requirement for particular types of criminal activity.
              a) Knock and announce is constitutionally required and there are exceptions,
                  but you can’t have a blanket restriction
          ii) To justify a no-knock entry, police must have a reasonable suspicion that
              knocking and announcing their presence under the particular circumstances,
              would:
              a) be dangerous or futile, or
              b) cause destruction of evidence
              c) Richards – Here, the officers’ no-knock entry into D’s hotel room did not
                  violate 4th Amend. b/c they had reasonable suspicion that D might destroy
                  evidence if given further opportunity to do so.

          iii) If knock and announce not needed (if an exception applies) police can do
               anything to effectuate a search
          iv) No-Knock Warrant  judge who issues it says you can execute w/o knocking
               – judicial permission for entry w/o knock and announce rule


                                        20
   (f) Suppression of Evidence w/ knock and announce rule
       i) If search is unreasonable, evidence can be suppressed
       ii) Knock and announce can apply to any kind of search
       iii) In many states, violation of the knock and announce excludes evidence
            a) exclusionary rule applies
       iv) in federal system, it does not exclude the evidence
            a) Hudson – violation of no-knock rule does not trigger the 4th Amend.
                exclusionary rule

(3) Timing of Entry after Knock and Announce
    (a) 20-second Rule – Banks
        i) After 15 or 20 seconds w/o a response to knock and announce, police could
            reasonably believe that person inside was destroying evidence.
        ii) Banks – Police knocked and waited 15-20 seconds for someone to answer, no
            one did so they forced their way in. Court said it was close call but that
            waiting this long was reasonable for them to believe that person inside was
            destroying evidence; period was long enough for police to believe that cocaine
            would be gone if they waited any longer.

(4) Freezing the Situation – While Warrant Sought
    (a) While police are getting warrant, what authority do they have?
    (b) Two requirements: reasonableness and warrant
        i) while getting a warrant, police must act reasonably
             a) they can only minimally intrude on person’s privacy
             b) reasonably act to protect the evidence and protect themselves
             c) reasonable response to the situation
    (c) While waiting a search warrant to be issued, police may freeze the situation
        i) Police must act reasonable under the circumstances
        ii) Purpose to protect officers and preserve evidence from being destroyed
        iii) Illinois v. McArthur – Police wouldn’t let D back into his house for a brief
             period while waiting for warrant to be issued. Held: Restriction on D was
             reasonable under 4th Am. It was a seizure, but this short term, limited
             intrusion into his liberty was reasonable under these circumstances.

(5) Scope of Search: Premises
    (a) Search incident to warrant – police lawfully on premises to execute warrant:
        i) Police may search containers large enough to hold the criminal evidence
             for which they are searching
             a) Reasonable for police to conduct a search consistent w/ the need to find
                 the items in the warrant
             b) items itself determine the scope of the search
             c) scope of search can change based on what they find
        ii) Police may seize an object not described in the warrant if they have
             probable cause to believe it is a seizeable item
             a) e.g. contraband, or a fruit, instrumentality or evidence of a crime
        iii) Information that becomes available to officers immediately before or
             during the execution of a warrant may require them to cease or narrow


                                     21
                 their search, notwithstanding the dictates of the warrant
                 a) Maryland v. Garrison (1987)

      (6) Scope of Search: People
          (a) Search of person incident to search warrant
          (b) Warrant authorizing search of person must be explicit
              i) Search warrant does not automatically authorize police to search person
              ii) Search warrant doesn’t usually mention people
          (c) Four ways police can search person:
              i) include in the warrant specified person
              ii) if police have search warrant and people are present, and if they have probable
                   cause to search the person, they can, but must explain why he didn’t get a
                   warrant to do so
              iii) make valid arrest – if you arrest someone, you automatically have authority to
                   search – don’t need probable cause [Robinson]
              iv) Terry pat down – for protection of police, they can pat down the suspect to
                   search for weapons [Terry v. Ohio]

      (7) Seizure of Persons
          (a) Search warrant implicitly authorizes police to detain occupants of the
              premises while proper search conducted
              i) Police may use reasonable force to secure and maintain detention of occupant
              ii) Michigan v. Summers (1981) – Bright-line rule: A warrant to search a
                   residence for contraband founded on probable cause implicitly carries with it
                   the limited authority to detain the occupants of the premises while a proper
                   search is conducted.
          (b) Purpose of detaining people while obtaining a warrant:
              i) to protect the police
              ii) to prevent escape in case incriminating evidence is found
              iii) facilitate the orderly completion of the search
          (c) even though there’s no probable cause, its reasonable under the circumstances

3. When Are Warrants Required?
   a. General Rule and Exceptions
      (1) GR = police must have search warrant before doing a search
      (2) Exceptions to warrant requirement:
          (a) No 4th Amend. violation (no standing) – Katz
          (b) Consent
              i) Schneckloth v. Bustamonte (1973)
          (c) Exigent circumstances, hot pursuit
              i) Warden v. Hayden (1967)
          (d) Search incident to lawful arrest
              i) Chimel search (person–wingspan)
              ii) Maryland v. Buie (protective sweep)
              iii) Belton search (car–passenger compartment)
          (e) Automobile exception
              i) Carroll–Chambers–Carney
          (f) Plain view and touch


                                          22
           i) Coolidge (1971) and Arizona v. Hicks (1987)
       (g) Stop and frisk
           i) Terry v. Ohio (1968)
b. Exigent Circumstances
   (1) No general “emergency” exception to warrant requirement
       (a) need to check occupational safety violations (Marshall v. Barlow’s), need to
           investigate fire after its been extinguished and its cause determined (Michigan v.
           Tyler), and need to search murder scene (Mincey v. AZ) do NOT justify
           warrantless searches
   (2) Warrant not required in certain exigent or emergency circumstances
       (a) police must reasonably believe that waiting for warrant would gravely endanger
           their lives or lives of others
       (b) can search for persons and weapons
   (3) Emergency exception: Hot Pursuit
       (a) Police officers in hot pursuit of fleeing felon can make a warrantless search
           and seizure. – Warden
       (b) Fourth Amend. does not require police officers to delay in the course of an
           investigation if to do so would gravely endanger their lives or the lives of others.
           i) Warden v. Hayden (1967) – Armed robber found in his home after tip from
                witness, police entered house w/ mother’s consent and without a warrant to
                search for and arrest him, searched house and found weapons and other
                evidence. The entry without warrant to search for the robber and the search
                for him without warrant was valid; both were justified by exigent
                circumstances. Speed was essential here to ensure that D was the only man
                present in the home and that police had control of all weapons which could be
                used against them or to effect an escape.
                a) Two different intrusions: entered house (consent from mother) and search
                    house. Police do not need a warrant to enter the house here because
                    waiting could increase danger to police, destroy evidence; also if in hot
                    pursuit of suspect, they don’t need warrant to enter house
                b) Court approves search for person and weapons, but question left open
                    about warrantless search for other items – could be too much like a general
                    search.
       (c) Scope of Search after hot pursuit:
           i) Scope of search may be as broad as may reasonably be necessary to prevent
                suspect from resisting or escaping – Warden
       (d) Hot pursuit is an exigent circumstance and no warrant necessary
           i) but still must be probable cause to believe there is an emergency
           ii) justifies entry and search
       (e) Limits to warrantless search in hot pursuit:
           i) only appears in serious crimes
           ii) search limited to weapons and a few other things (not a general search for
                anything)
           iii) search must be immediate – must be now, not in a few days

   (4) What police can they search for w/o warrant in exigent circumstances:
       (a) People and weapons in the house – Warden v. Hayden
       (b) Chimel search (see below)


                                        23
   (5) Police may seize without warrant evidence likely to disappear before warrant
       can be obtained
       (a) e.g. blood sample containing alcohol (Schmerber v. Cal.) and
       (b) fingernail scrapings (Cupp v. Murphy)

c. Searches Incident to Arrest
   (1) In General
       (a) Police may conduct search incident to arrest whenever they arrest a person
           i) Any arrest is sufficient
           ii) If arrested for a misdemeanor, Belton search allowed – Ladson (1999)
           iii) When pulled over for traffic citation, NO Belton search (b/c no custodial
                arrest) – Knowles v. Iowa (1998)
                a) For traffic violations, if D not arrested, there can be no search incident to
                    arrest, even it state law gives officer option of arresting D or issuing
                    citation.
                b) Knowles – a nonconsensual automobile search conducted after suspect
                    was issued a citation for driving 43 mph in 25 mph zone was illegal, and
                    contraband found during search was excludable at trial
                c) Rationale: When citation is issued, there is less of a threat to the officer’s
                    safety than there is during an arrest, and the only evidence that needs to be
                    preserved in such a case (e.g. evidence of the suspect’s speeding or other
                    illegal conduct) has already been found.
       (b) Search incident to arrest must be contemporaneous in time and place with arrest –
           Preston (1964) and Chadwick (1977)

       (c) Chimel Search
           i) Incident to lawful arrest, police may search person and areas into which he
                might reach to obtain weapons or destroy evidence (his wingspan)
           ii) Can remove any weapons or evidence he might conceal or destroy
           iii) Wingspan/armspan = area immediately surrounding his person, from
                within which he might gain possession of weapon or destructible evidence
                a) anything in arrestee’s immediate control, within his armspan
                b) Arrestee’s wingspan follows him as he moves
                   1) e.g. if arrestee is allowed to enter his home, police may follow and
                       search areas within the arrestee’s wingspan in the home
           iv) Requires some immediacy – can’t search area hours later after arrestee is gone
           v) Reasonable search to protect police and preserve evidence
           vi) Authorizes search without probable cause
                a) reasonable under the circumstances to protect the officer and the evidence

       (d) SCOPE of Chimel search:
           i) Wingspan/armspan rule
           ii) includes backpacks, purses, wallets, packages on the person
           iii) does not extend to other rooms in the house
                a) searching any room other than that in which the arrest occurs can be made
                   only w/ search warrant, in absence of recognized exceptions.



                                         24
   (e) Chimel (1969) – Officers enter home w/ arrest warrant and conducted search of
       his entire home without search warrant and even though D objected to search.
       i) Struck down old rule (Rabinowitz/Harris) that a warrantless search incident to
            a lawful arrest may generally extend to the area that is considered to be in the
            “possession” or under the “control” of the person.
       ii) The scope of this search was unreasonable and thus invalid w/o a search
            warrant. The search went far beyond the D’s person and the area from within
            which he might have obtained either a weapon or something that could have
            been used as evidence against him.
       iii) Lawful custodial arrest creates situation which justifies the contemporaneous
            search without a warrant of the person arrested and of the immediately
            surrounding area.

   (f) During lawful custodial arrest, a full search of the person is an exception to
       the warrant requirement of 4th Amend. AND is a ‘reasonable’ 4th Amend.
       search. (Robinson)
       i) Lawful custodial arrest  probable cause not need for full search of D
       ii) Authorizes total search of person for any kind of search. Broader than
            Chimel’s armspan search
       iii) U.S. v. Robinson (1973) – Police pulled over car on suspicion that D was
            driving w/ suspended license. Upon his lawful arrest of D, officer searched D,
            felt object in D’s pocket, pulled it out, opened it and found heroin in a
            cigarette box.
            a) Held: During lawful custodial arrest, a full search of the person is not only
                 an exception to the warrant requirement of the 4th Amendment, but is also
                 a ‘reasonable’ 4th Amend. search. Bright-line rule; not a case-by-case
                 determination. Here, officer’s search of D was reasonable and
                 constitutional.
       iv) ** Note: Some states have rejected Robinson

(2) Arrest Inventory
    (a) When D taken into custody, search is automatically required to inventory his
        belongings before incarcerating arrestee
    (b) Arrest inventory search = search of his person and property
        i) includes entire search of arrestee’s car, including closed containers inside car
    (c) This is reasonable search under 4th Amend.
    (d) Purpose  protect police, preserve evidence, protect govt from lawsuit
    (e) Lafayette (1983)

(3) Cars: Passenger Compartment – Belton Search
    (a) Police may conduct warrantless search of passenger compartment of car
        (including containers) after arresting the car’s occupants.
        i) When police officer has made lawful custodial arrest of the occupant of an
            automobile, he may, as a contemporaneous incident of that arrest, search the
            passenger compartment of that automobile.
        ii) Authorizes search without probable cause b/c search incident to an arrest
            a) lawful custodial arrest justifies the infringement of any privacy interest the
                arrestee may have


                                     25
       iii) Purpose: protect evidence that would corroborate poor behavior of D
       iv) Hard and fast rule – not a case-by-case determination
       v) Passenger compartment is area “within the arrestee’s immediate control”
            within the meaning of Chimel.
   (b) Scope of Belton search:
       i) Entire passenger compartment
       ii) Any containers found in passenger compartment
       iii) CANNOT search the trunk of the car

   (c) Belton (1981) – Police pulled car over for speeding, smelled marijuana and saw
       envelope w/ ‘supergold’ on it that alerted police it was marijuana; ordered
       occupants out of the car and arrested them. Then police searched the entire car,
       found jacket on seat w/ drugs in it.
       i) Held: The jacket he searched for in the car after the D was removed and
           arrested for possessing marijuana, was within the area “within the arrestee’s
           immediate control” within the meaning of Chimel. Thus the search of the
           jacket was a search incident to a lawful custodial arrest and did not violate the
           4th Amend.
       ii) Dissent – Majority’s rule fails to reflect Chimel’s underlying policy
           justifications – safety of officer and preservation of evidence.

   (d) Belton rule governs even when an officer does not make contact until the
       person arrested has left the vehicle.
       i) Belton applies in situations where officer makes contact w/ occupant while he
            is inside vehicle and when officer first makes contact w/ the arrestee after
            arrestee has stepped out of the vehicle.
       ii) If arrestee is a “recent occupant” of the car, officer may search the car
            incident to the arrest.
       iii) Justification: Once an officer determines there is probable cause to make an
            arrest, it is reasonable to allow officers to ensure their safety and to preserve
            evidence by searching the entire passenger compartment.
       iv) Thornton (2004) – Police suspicious of car after it slowed down to avoid
            driving next to unmarked police car. Police ran tags, found irregularity, but
            before he could pull him over, car pulled into parking lot, parked and driver
            got out. Officer pulled behind him and asked D for driver’s license and told
            him that license tags did not match car he was driving. D appeared nervous
            and sweating, consented to pat-down, admitted he had drugs on him and
            pulled them out of his pocket at officer’s request. Officer arrested D and
            placed him police car, then searched D’s car and found gun under seat.
            a) Held: Valid search of D’s car. B/c D was a “recent occupant” of the car,
                 officer could search car incident to that arrest.

(4) Pretextual Stops / Arrests
    (a) Police may conduct search incident to arrest whenever they arrest a person
        i) Any arrest is sufficient
        ii) If arrested for a misdemeanor, Belton search allowed – Ladson (1999)
        iii) When pulled over for traffic citation, NO Belton search (b/c no custodial
             arrest) – Knowles v. Iowa (1998)


                                     26
       (b) If officer legally authorized to make the traffic stop, subsequent car search is
           valid under 4th Amend. – Whren
           i) Constitutional reasonableness of traffic stops does not depend on the actual
               motivations of the individual officers involved.
               a) i.e. does not matter if their reason for pulling over was something else and
                   were improper reasons under 4th
           ii) BUT pretextual stop can be so unreasonable that it violates 4th Amend
               a) e.g. if real purpose is inventory search, that violates 4th Amend.
       (c) Whren (1996) – Police saw D in car and were suspicious that he was involved w/
           drugs. So they followed him until he did something illegal. Made a turn w/o
           signaling and sped away, so they pulled him over and noticed bags of cocaine in
           D’s hands; they had authority (probable cause) to pull them over for traffic
           violations. Then arrested them and searched the car.
           i) Held: Valid search. Even though the stop was pretextual, the subsequent
               search was valid under 4th Am. 4th Amend. issue here was the stop of the car
               by police. If they have authority to do traffic stop, that authorizes them to look
               inside the car. Permitted search covered by 4th, even though the real reasons
               were improper under the 4th. Officers had probable cause to believe that Ds
               had violated the traffic code, which rendered the stop reasonable under the 4th
               Amend and the evidence they discovered was admissible.
               a) The making of a traffic stop out-of-uniform does not remotely qualify as
                   such an extreme practice and is so governed by the usual rule that probable
                   cause to believe the law has been broken “outbalances” private interest in
                   avoiding police contact.
           ii) Effect: Permits police to be more proactive – to rely on their hunches if they
               can find a traffic violation

d. Searches Not Incident to Arrest: Cars, etc. (Not Belton search)
   (1) Intro.
       (a) Belton Summary – search incident to arrest
           i) if there was custodial arrest of person in car, that alone authorizes a search of
                the passenger compartment of the car = that is search incident to an arrest
           ii) Automobile exception – may or may not be an arrest
           iii) Belton – always involves an arrest
           iv) Probable cause not needed in Belton searches
       (b) Different ways that car can be searched:
           i) Inventory search – car impounded and searched – police regulations
                authorizing an inventory search of the car. No probable cause, only
                administrative reasons. Must be routine practice pursuant to administrative
                regulations.
           ii) Automobile “frisk” (Michigan v. Long) – requires suspicion
       (c) Car search warrant exceptions (no warrant needed)
           i) Carroll–Chambers–Carney – automobile exception (probable cause)
           ii) Belton search (car search incident to arrest)
           iii) Auto inventory (Opperman)
       (d) Automobile exception cases  searches with probable cause
           i) Belton different: probable cause not needed


                                         27
        ii) For the following cases, assume this is NOT a Belton search and arrest


(2) Searches Not Incident to Arrest: Cars [Automobile Exception Cases]
    (a) Automobile Exception to 4th Amend. – If police have probable cause to believe
        that vehicle like a car contains contraband or fruits, instrumentalities, or
        evidence of a crime, they may search the vehicle without a warrant. – Carroll
        i) Search warrant unnecessary where there is probable cause to search a car
             stopped on the highway; car is moveable, occupants are alerted, and car’s
             contents may never be found again if a warrant must be obtained.
        ii) Distinction between warrantless search in car and home: Cars and other
             conveyances may be searched without a warrant in circumstances that would
             not justify the search without a warrant of a house or an office, provided that
             there is probable cause to believe that the car contains articles that the officers
             are entitled to seize.
        iii) Justifications:
             a) Automobiles and similar vehicles are mobile and so will not likely be
                 available for search by the time an officer returns with a warrant
             b) People have lesser expectation of privacy in their vehicles than in their
                 homes.
        iv) Carroll (1925) – Cops had probable cause to pull over the car and search it;
             Court focused on mobility of car – that car could get away and evidence lost.

    (b) If police are justified in making a warrantless search of a vehicle under the
        automobile exception at the time of stopping (e.g. they had probable cause to
        search vehicle), they may tow the vehicle to the police station and search it
        later. – Chambers
        i) Where police may stop and search a car under Carroll, they may also seize it
             and search it later at the police station without a warrant BUT must have
             probable cause to search.
        ii) Search of the car at police station some time after the arrest cannot be justified
             as a search incident to an arrest.
        iii) If an effective search is to be made at any time, either the search must be made
             immediately without a warrant or the car itself must be seized and held
             without a warrant for whatever period is necessary to obtain a warrant for the
             search.
        iv) Chambers (1970) – Search of the car at police station some time after the
             arrest and w/o warrant produced gun and other evidence. Held: This was not a
             search incident to an arrest, but search still valid. Police had probable cause to
             arrest car occupants and to search for guns and stolen money immediately
             after arrest. Thus, probable cause remained while car was at police station and
             they could search car w/ probable cause at the station.

    (c) Search of car must not be too attenuated from time of arrest.
        i) Coolidge (1971) – Here, the search of D’s cars parked in his driveway hours
            after his arrest was too attenuated and thus unconstitutional.
        ii) Contemporaneousness not required (per Chambers) but search must not be too
            attenuated from time of arrest.


                                       28
   (d) Scope of search under Automobile Exception:
       i) Search entire vehicle, including trunk, AND
       ii) All containers within the vehicle that might contain the object for which they
            are searching – Ross (1982)
       iii) Search not limited to driver’s belongings, may extend to passenger’s packages
            – Wyoming v. Houghten (1999) (Search of passenger’s purse upheld where
            officer noticed driver had syringe in his pocket.)
            a) Rationale: Like a driver, passenger has reduced expectation of privacy in a
                car.
       iv) If police only have probable cause to search a container (recently) placed in a
            vehicle, they may search that container, but search may not extend to other
            parts of the car. – California v. Acevedo (1991)

(3) Searches Not Incident to Arrest: Motor Homes
    (a) Automobile exception extends to any vehicle that has the attributes of
        mobility and a lesser expectation of privacy similar to a car.
    (b) Automobile exception extends to motor homes if they are not at a fixed site. –
        Carney
    (c) Justifications for search of motor home w/ probable cause:
        i) pervasive schemes of regulation lead to reduced expectations of privacy
        ii) exigencies attendant to ready mobility
        iii) societal interests in effective law enforcement
    (d) Carney (1985) – Police suspected motor home of drug activity; kid leaving motor
        home told him he got drugs in exchange for sexual acts. Had kid go back and
        knock on door, which D opened, police identified themselves and without warrant
        or consent, entered motor home and observed drugs and paraphernalia inside. D
        arrested, motor home searched further at station and more drugs found.
        i) Held: If vehicle is being used on highways or is readily capable of such use
             (i.e. motor home) and is found stationary in a place not regularly used for
             residential purposes, police may immediately search before vehicle and
             occupants become unavailable if they have probable cause to search it.
        ii) The pervasive schemes of regulation, which necessarily lead to reduced
             expectations of privacy, and the exigencies attendant to ready mobility justify
             searches without prior recourse to the authority of a magistrate so long as the
             overriding standard of probable cause is met. If vehicle is being used on
             highways or is readily capable of such use and is found stationary in a place
             not regularly used for residential purposes, the overriding societal interests in
             effective law enforcement justify an immediate search before the vehicle and
             its occupants become unavailable. Less mobile it is, the more likely it is to be
             a home.
        iii) Search valid. D’s motor home fell within automobile exception; thus police
             could search w/o a warrant if they had probable cause, which they did.

(4) Car Inventory
    (a) Probable cause and warrant requirements of 4th Amend. do not apply to routine
        inventory searches. – Opperman (1976)
    (b) Administrative search.


                                     29
   (c) Police may search arrestee’s personal belongings to inventory them before
       incarcerating him (Lafayette); may search an entire vehicle, including closed
       containers within the vehicle, that has been impounded (Bertine)

(5) Luggage and Containers
    (a) Search incident to arrest must be contemporaneous in time and place with arrest
        i) includes searches of luggage and containers
    (b) Warrantless searches of luggage or other property seized at the time of an
        arrest cannot be justified as incident to that arrest either if:
        i) the search is remote in time or place from the arrest OR
        ii) no exigency exists. – Chadwick
    (c) Once police have reduced luggage or other personal property not immediately
        associated with the person of the arrestee to their exclusive control, and there is no
        longer any danger that the arrestee might gain access to the property to seize a
        weapon or destroy evidence, a search of that property is no longer incident to the
        arrest.
        i) Chadwick (1977) – Police were suspicious of large footlocker on train w/
            person who looked like drug trafficker. They had no arrest or search warrant,
            and released dog near the footlocker , who signaled the presence of a
            controlled substance inside the footlocker . Then Ds loaded footlocker into
            car, and w/ car trunk still open, police arrested Ds and took keys to footlocker.
            Ds taken to federal building along w/ footlocker, which was opened 1.5 hours
            after the arrests. Searched footlocker w/o consent or search warrant, found
            drugs. Held: Because footlocker was safely immobilized (Ds could not reach
            it to destroy evidence or get weapons), and there was no exigency, it was
            unreasonable for the govt to conduct the search of the footlocker back at the
            station house without a warrant. Search was not immediate enough after
            arrests. Ds had a reasonable expectation of privacy.

   (d) When police have probable cause to search a car without a warrant (under the
       Carroll-Chambers-Carney automobile exception), they may also search any
       containers within the vehicle that might contain the object for which they are
       searching – Ross (1982)
       i) (in addition to searching entire vehicle, including trunk)
       ii) Expectation of privacy in one’s vehicle is equal to one’s expectation of
            privacy in the container.
       iii) Court won’t draw distinction between “worthy” and “unworthy” containers

   (e) If police only have probable cause to search a container (recently) placed in a
       vehicle, they may search that container, but search may not extend to other
       parts of the car. – California v. Acevedo
       i) 4th Amend. does not require the police to obtain a warrant to open the
            container in a moveable vehicle simply b/c they lack probable cause to search
            the entire car.
       ii) 4th Amend. does not compel separate treatment for a car search that extends
            only to a container within the vehicle.
       iii) Interprets Carroll as providing one rule to govern all car searches: Police may
            search a car and the containers within it if they have probable cause to


                                      30
           believe contraband or evidence is contained.
       iv) California v. Acevedo (1991) – Man got package from Hawaii that police
           knew from prior inspection contained drugs (wanted him to take package for
           further surveillance). Police saw D go into apt. where package was located
           then left carrying large paper bag like ones they observed in original package
           sent from Hawaii. He got in car w/ bag and drove away. Police feared loss of
           evidence, so they pulled him over, opened trunk and bag, found drugs.
           a) Held: No 4th Amend. violation. Police had probable cause to search trunk
               and bag, but probably nothing else. It was okay for police here to search
               bag in trunk.

(6) Plain View and Touch
    (a) Police may make warrantless seizure if they:
        i) are legitimately on the premises
        ii) discover evidence, fruits or instrumentalities of crime, or contraband
        iii) that is in plain view, and
        iv) have probable cause to believe (i.e. must be immediately apparent) that the
             item IS evidence, contraband, or a fruit or instrumentality of crime.
    (b) Legitimately/lawfully on premises
        i) anything under the fourth amendment that lets the cops be where they are
        ii) Inadvertence NOT required – Horton
             a) Real purpose does not need to be inadvertent discovery; total good faith
                 not required.
             b) Formerly, plain view exception only applied if evidence was inadvertently
                 discovered – inadvertence no longer required.
             c) Ex: Police have probable cause to believe that the weapons and proceeds
                 from an armed robbery are at D’s home. If they get warrant only to search
                 for the proceeds, they still may seize the weapons if they are found in plain
                 view during the search.
        iii) Police must also have lawful access to the object

   (c) Police may seize unspecified property while executing a search warrant.

   (d) Probable cause required before you move something to determine if it’s a
       seize-able item during a plain view seizure. – Arizona v. Hicks
       i) Arizona v. Hicks (1987) – While investigating shooting in apartment, officer
           spotted 2 sets of expensive stereo equipment which he had reasonable
           suspicion (but not probable cause) to believe were stolen. Officer moved
           some of the components to check serial numbers. This movement constituted
           invalid search b/c of lack of probable cause.

   (e) Even though inadvertence is a characteristic of most legitimate “plain view”
       warrantless seizures, it is not a necessary condition.
       i) Horton v. California (1990) – D was convicted of armed robbery. Police
          affidavit for warrant described weapons and stolen property, but magistrate
          only authorized search for the stolen property. Police searched D’s home but
          did not find stolen property. During course of search, discovered the weapons
          and other evidence in plain view and seized them. Seized evidence was not


                                      31
                      discovered inadvertently – searching officer admitted that while he was
                      searching for the stolen property, he was also interested in finding other
                      evidence connecting D to robbery.
                      a) Held: Plain view doctrine applies and permits the seizure. Inadvertence not
                          required. If police are lawfully searching a place, and see something in
                          plain view that gives them probable cause, then they can seize the items.
                          Second, they must have lawfully accessed the object. Search was valid.

J. Reasonableness
   1. Ascent of Reasonableness
      a. Camara and See (1967) and enforcement of administrative regulations
         (1) Camara – In administrative inspections and searches, inspectors must have a warrant
             for searches of private residences and commercial buildings.
         (2) Court recognized different form of probable cause for administrative searches:
             (a) does not require individualized suspicion
             (b) instead, its P.C. based on general 4th Amend. standard of reasonableness
             (c) showing of general and neutral enforcement plan will justify issuance of warrant
             (d) PC also satisfied if there are reasonable administrative standards that mandate this
                 search
             (e) provides external standard for inspection (of restaurants, apartment buildings etc.)
             (f) watered down warrant requirements – reasonable suspicion not needed
         (3) ** Note: Although Camara–See require administrative search, no one really requires
             that inspectors get warrant before search

   2. Terry v. Ohio (1968) – Stop and Frisk
      a. Stop and frisk is another exception to warrant requirement
      b. Terry  limited authority for police to stop individual and pat him down
         (1) Police must have probable cause to do so

       c. Terry Stop = Police officer may stop a person without probable cause if she has an
          reasonable suspicion supported by articulable facts of criminal activity or
          involvement in a completed crime.

       d. Terry Frisk = In these circumstances, if officer also reasonable believes that the
          person may be armed and presently dangerous, she may conduct a protective frisk
          to ensure detainee has no weapons.

       e. Terry – In General.
          (1) Terry stop and frisk involves seizure:
              (a) seizure when the officer accosts an individual and restrains his freedom to walk
                  away (stops him) and when officer frisks him
          (2) stop and search is involuntary – person need not consent to the frisk
          (3) officer can use reasonable force to effectuate the frisk
          (4) For first time recognized exception to the requirement that 4th Amend. seizures of
              persons must be based on probable cause.
          (5) Admissibility of Evidence  Properly seized items in Terry patdown are admissible
              as evidence against D.
          (6) Terry frisk = patdown


                                               32
   (7) Terry stop and frisk = investigatory detention


f. Scope of Terry Frisk:
   (1) Generally limited to patdown of outer clothing for concealed weapons
       (a) intrusion reasonably designed to discover guns, knives, clubs or other hidden
           instruments for the assault of the police officer.
   (2) Cannot search under clothing – e.g. can’t unzip jacket and look inside
   (3) BUT, officer may reach directly into an area of D’s clothing, such as his belt, without
       a preliminary frisk, if he has specific information that a weapon is hidden there
       (a) even if information comes from informant’s tip lacking sufficient reliability to
           support a warrant
   (4) Officer may reach into suspect’s clothing and seize any item that the officer
       reasonably believes, based on its plain feel, is a weapon or contraband.
       (a) But officer cannot manipulate items or packages inside the clothing to discern
           what it is/what’s inside. – Minn. v. Dickerson (1993)
g. Duration and scope:
   (1) To be valid under Terry, the investigatory stop must be
       (a) relatively brief and
       (b) in any event no longer than is necessary to conduct a limited investigation
       (c) to verify the officer’s suspicions.

h. Purpose of Terry frisk:
   (1) Protect officer
       (a) from arrestee who might be armed and dangerous
   (2) Not general search for weapons
   (3) Objective standard
   (4) Purpose of the stop: crime prevention

i. Standard for the seizure (stop):
   (1) Reasonable suspicion that crime is afoot
       (a) (reasonable suspicion less than probable cause)
       (b) purpose: crime prevention
   (2) Past crime also covered – Terry stop and frisk applies when officer seeks to
       investigate a completed felony. – Hensley (1985)

j. Standard for the search:
   (1) Reasonable suspicion that person is armed and dangerous
   (2) looking only for weapons that could harm the officer
   (3) purpose: protect officer

k. Determining reasonableness of the search and seizure:
   (1) Must look at whether the officer’s action was justified at its inception and whether it
       was reasonably related in scope to the circumstances which justified the interference
       in the first place.
   (2) Balancing Test: govt interest vs. individual’s interest
       (a) Govt interest which allegedly justifies official intrusion upon the constitutionally
           protected interests of the private citizen, police officer must justify his intrusion


                                         33
               w/ specific and articulable facts which, taken together w/ rational inferences from
               those facts, reasonably warrant that intrusion.
           (b) Govt interest: officer safety, investigation vs. Individual interest: privacy
       (3) Different levels of Reasonableness (of police action) – each requires different amount
           of proof to be valid
           (a) Encounter vs. Terry stop vs. Arrest

   l. Reasonable Suspicion
      (1) No specific definition by Court
      (2) Requires something more than a vague suspicion
          (a) e.g. not enough that detainee was in a crime-filled area – Brown v. Texas (1979)
      (3) But less than probable cause
      (4) Totality of circumstances to see if standard met
      (5) Example – Reasonable suspicion justifying a stop is present when: a suspect who is
          standing on a corner in a high crime area flees after noticing the presence of police.
          Neither factor alone is enough to justify a stop, but together are sufficiently
          suspicious. – Illinois v. Wardlow (2000)
      (6) Reasonable need not arise from a police officer’s personal knowledge (like PC)
          (a) suspicion can be based on a flyer, a police bulletin, report from informant
              (Hensley, 1985) or information from private citizen (Adams v. Williams, 1972)

   m. Terry Holding:
      (1) Search reasonable under 4th where police officer
          (a) observes unusual conduct which leads him reasonably to conclude in light of his
              experience that criminal activity may be afoot and that the persons w/ whom he is
              dealing may be armed and dangerous,
          (b) in the course of investigating this behavior he identifies himself as a policeman
              and makes reasonable inquiries, and
          (c) nothing in the initial stages of the encounter serves to dispel his reasonable fear
              for his own or other’s safety,
          (d) he is entitled for the 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.

3. Terry Seizure (stop) vs. Arrests vs. Non-Seizure (encounter)
   a. Different levels of Reasonableness (of police action) – each requires different amount of
      proof to be valid
   b. Non-seizure / Encounter
      (1) less intrusive and generally not 4th Amend. incident
      (2) encounters on street between officers and individuals
      (3) short term, temporary kind of stop
      (4) when officer merely approaches person but does not detain her
          (a) no arrest or investigatory detention has occurred
          (b) reasonable person must believe she is free to leave
      (5) reasonable suspicion not necessary for this encounter
      (6) but some encounters can trigger 4th Amend.
   c. Terry Seizure / Stop
      (1) some intrusion, investigatory measures


                                            34
   (2) probable cause not required
   (3) only requires reasonable suspicion
   (4) Police may use force in Terry stop – the more force used, the more likely it will be
       considered a full blown search and seizure requiring probable cause.
d. Arrest
   (1) greater intrusion
   (2) requires probable cause
   (3) this is full blown search and seizure

e. Arrest
   (1) It was a de facto arrest, not a Terry seizure, when police seized D without
       probable cause and took him to police station for interrogation.
       (a) Dunaway v. N.Y. (1979) – Police violated the 4th Amend. when, without
           probable cause, they seized D and transported him to the police station for
           interrogation (did not have enough information for warrant and no probable cause
           to arrest him). This was a de facto arrest, not a Terry seizure, thus Terry does not
           apply. Police needed probable cause before they seized him. Seizures are
           reasonable only if supported by probable cause. There was reasonable suspicion,
           but it amounted to an arrest, not a Terry stop. Refused to extend Terry to a
           custodial arrest.
   (2) Arrest when airport officers, acting without PC but with reasonable suspicion that D
       was drug courier, approached and IDed themselves, took him to small room for
       questioning, refused to give his ticket and ID back, until he consented to a search.
       (a) Florida v. Royer (1983) – Airport officers thought D was acting like drug
           courier. They approached him, took his ticket and ID, told them they were
           narcotics officers, took him to small room w/o giving ticket and ID back, where
           he consented to a search. Held: This was an arrest – they needed probable cause,
           not just reasonable suspicion to do this.

f. Terry Seizure – Stop in Automobiles
   (1) If vehicle properly stopped for traffic violation, officer may order driver out of car
       even without a suspicion of criminal activity. – Mimms
       (a) If officer has reasonable suspicion that the driver may be armed and dangerous,
           she may conduct a frisk. – Mimms
       (b) Officer may search the vehicle, even if the officer has not arrested the occupant
           and has ordered the occupant out of the vehicle, provided the search is limited to
           those areas in which a weapon may be placed or hidden and officer possesses a
           reasonable belief that the occupant is dangerous. – Michigan v. Long (1983)
       (c) If a driver is stopped for a ticket with a passenger in his car, officer may order
           passenger out of car too. – Maryland v. Wilson (1997)

       (d) Mimms (1977) – Court balanced the competing interests and ruled that when an
           officer legally stops a driver on the highway, he may order the driver out of the car
           without further justification. Interest in police safety is legitimate and weighty.
           Driver’s interest, having been lawfully stopped, to be permitted to stay in his car.
           Intrusion of getting out of car is de minimis.

   (2) Time limit for investigative stop


                                         35
       (a) No rigid time limit for length of investigative stop. Factors Court will consider to
           determine whether stop was too long: (Sharpe)
           i) purpose of the stop
           ii) reasonableness of the time in effectuating the purpose
           iii) reasonableness of the means of investigation
       (b) Sharpe (1985) – Car and camper both pulled over, officer smelled marijuana in
           camper, held camper for 20 minutes before search. Held: This was valid Terry
           stop, authorized police to investigate. Police acted expeditiously, reasonably under
           these circumstances. Delay was attributable almost entirely to the evasive actions
           of driver of camper, who sought to elude the police as D moved his car to side of
           the road. Was decided by Terry, not by full custodial search. Whether police
           acted reasonably is case by case determination

g. Terry Seizure – Person
   (1) A person is seized only when, by means of physical force or a show of authority, his
       freedom of movement is restrained. – Mendenhall
   (2) Seizure when, in view of all circumstances surrounding the incident, reasonable
       person would believe that she is not free to leave. – Mendenhall
       (a) This requires a physical application of force by the officer or a submission to the
           officer’s show of force. Not enough that officer merely ordered the person to
           stop. – Cal. v. Hodari D.

   (3) California v. Hodari D. (1991) – Police patrolling in “high-crime” area, saw 5
       youths huddled around small car who then took flight after seeing police. D ran and
       just before police caught him, he tossed away package of cocaine. Issue: At time he
       dropped the drugs, was D seized? Held: With respect to a show of authority as with
       respect to application of physical force, a seizure does not occur even though the
       subject does not yield. An arrest requires either physical force or where that is absent,
       submission to the assertion of authority.
       (a) Assuming that officer’s pursuit was a “show of authority” enjoining D to stop,
           since D did not comply w/ that injunction (i.e. he did not stop), he was not seized
           until he was tackled. They had no reasonable suspicion to seize him (by tackling
           him). Thus, the drugs he abandoned while running was not a fruit of the seizure
           and admissible.

h. Non-Seizures
   (1) No seizure when D stopped in airport by officers b/c they suspected she was drug
       mule. D was still free to end conversation and walk away. No seizure when D went
       to their office because she voluntarily consented to go there. Valid search b/c she
       gave valid consent to search in the office.
       (a) U.S. v. Mendenhall (1980) – Woman stopped in Detroit airport b/c DEA agents
           thought her conduct was characteristic of those carrying narcotics. They asked for
           ticket, identified themselves as agents and she got nervous. She agreed to
           accompany them to DEA office in airport, and there agreed to search of her person
           and handbag and they found drugs on her. Held: A person has been seized within
           meaning of 4th Amend. only if, in view of all the circumstances surrounding the
           incident, a reasonable person would have believed that he was not free to leave.
           i) No seizure w/ agent’s initial approach on concourse; nothing in record


                                        36
                   indicates that D had any objective reason to believe she was not free to end the
                   conversation in the airport concourse and go on her way. (Not a majority –
                   only 2 justices thought it was seizure). No seizure w/ trip to DEA office b/c D
                   voluntarily consented to accompany the officers to the DEA office. Search
                   was valid b/c D’s consent to search was valid, it was free and voluntary.
               ii) Very divided court:
                   a) 2 justices – no seizure
                   b) 3 justices – Terry stop based on reasonable suspicion
                   c) 4 (dissent) – it was an arrest, full blown seizure

       (2) Court must look to totality of circumstances when determining if seizure
           occurred. Absence of warning of search is not controlling factor.
           (a) U.S. v. Drayton (2002) – Officers boarded bus and got permission from Ds to
               search their bags and their persons, found drugs on their persons after pat down
               search. Ds argue that the consent to the patdown search was invalid b/c police
               conduct was coercive and thus their consent was not voluntary. Held: Ds were
               not seized and their consent to the search was voluntary. Police did not seize Ds
               when they boarded the bus and began questioning passengers. Reasonable person
               would feel that they could still leave the bus to avoid the search. Ds were not
               subjected to unreasonable search; their consent to the suspicionless search was
               voluntary and thus reasonable. Police w/o reasonable suspicion may question
               anyone they want to.

4. Terry: Reasonable Suspicion
   a. Generally
      (1) Terry places some limits on it reasonable suspicion.
      (2) Probable cause
          (a) look at totality of circumstances
          (b) probability, not certainty
          (c) arrest - is there a fair probability that evidence of a crime will be found
      (3) Reasonable suspicion
          (a) Arrest – based on facts known to officer are sufficient to warn a person of
              reasonable caution would believe that person has or is about to commit a crime
          (b) Search – based on facts known to officer are sufficient to warn a person of
              reasonable caution would believe that evidence will be found
          (c) Reasonable suspicion that the what officer doing is appropriate – is officer acting
              how a reasonable officer would do in that situation
          (d) Requires something more than a vague suspicion but less than probable cause
          (e) Look at totality of circumstances
          (f) Reasonable need not arise from a police officer’s personal knowledge (like PC) –
              suspicion can be based on a flyer, a police bulletin, report from informant
              (Hensley, 1985) or information from private citizen (Adams v. Williams, 1972)
          (g) Reasonable suspicion is less demanding standard than PC; both are dependent
              upon both the content of information possessed by police and its degree of
              reliability. – White

   b. If source of suspicion of criminal activity is an informant’s tip, the tip must be
      accompanied by indicia of reliability sufficient to make the officer’s suspicion


                                            37
       reasonable.
       (1) Alabama v. White (1990) – Police got anonymous call telling that woman was
           carrying drugs, would be leaving specified apartment and delivering drugs to
           specified hotel. Police found her and followed her car, stopped her just short of hotel,
           for suspicion of carrying cocaine, she consented to search and they found the drugs.
           Issue: Was there reasonable suspicion to stop her in the car?
           (a) Held: After observing that the informant had accurately predicted the suspect’s
               movements, it was reasonable for police to think that the informant had inside
               knowledge that the suspect indeed had drugs, thus justifying Terry stop. When
               police stopped D, the anonymous tip had been sufficiently corroborated to furnish
               reasonable suspicion that D was engaged in criminal activity.

   c. Reasonable suspicion justifying a stop is present when:
      (1) a suspect who is standing on a corner in a high crime area
      (2) flees after noticing the presence of police.
      (3) Neither factor alone is enough to justify a stop, but together are sufficiently
          suspicious.
      (4) Illinois v. Wardlow (2000) – 4 police cars patrolling area for narcotics; police in last
          car saw D standing next to building holding bag; D ran after he saw police; police
          caught him and frisked him, felt hard object similar to shape of gun, then opened the
          bag and found gun. Issue: Was there reasonable suspicion for Terry stop?
          (a) Held: There was reasonable suspicion for Terry stop. Police were justified in
              suspecting that D was involved in criminal activity and thus in investigating
              further. Efforts to flee plus other factors (totality of circumstances – that D was
              man, holding bag) contributed to finding of reasonable suspicion.

   d. Providing Identification
      (1) As long as police have reasonable suspicion required to make a Terry stop, they
          may require detainee to ID himself (i.e. state his name)
          (a) detainee may be arrested for failure to comply – Hiibel
          (b) Hiibel dicta suggested that Court would recognize exception to this rule under 5th
              Amend. right against self-incrimination if by merely giving his name, detainee
              may incriminate himself, but it would be rare case.
      (2) Hiibel (2004) – Properly crafted and enforced stop-and-identify laws are
          constitutional. Must be reasonable suspicion for officer to stop person and ask him to
          identify himself. 4th Amend. Terry stop allows officer to get name and address of
          person they are stopping. Court suggested that request for ID must be reasonably
          related to the reasons for stop.

5. Extending Terry
   a. Protective Sweep of Premises
      (1) Incident to lawful arrest, police may make protective sweep of the area beyond
          D’s wingspan (per Chimel) if they believe accomplices may be present. – Buie
      (2) “Protective sweep” = quick and limited search of premises after arrest for other
          persons who might be hiding and dangerous to officers
      (3) Purpose:
          (a) To protect the safety of police officers or others – from “gunman in the closet.”
      (4) Scope:


                                            38
             (a) Narrowly confined to a cursory visual inspection of those places in which a person
                 might be hiding
             (b) person who might be dangerous
             (c) Automatic authority to look for others that might be dangerous
             (d) NOT authority to look for evidence
             (e) NOT full search of premises
             (f) Lasts no longer than necessary to dispel the reasonable suspicion of danger, and
                 no longer than it takes to complete the arrest and depart the premises.
         (5) Maryland v. Buie (1990) – Police conducted “protective sweep” in D’s home after
             they arrested him for armed robbery; after he was placed under arrest, police kept
             searching for others in the home and found evidence that linked D to the crime.
             (a) Held: Search was valid under protective sweep. Once D was found, the search
                 for him was over, and there was no longer that particular justification for entering
                 any rooms that had not yet been searched. However, arresting officers are
                 permitted in such circumstances to take reasonable steps to ensure their safety
                 after and during the arrest. That interest is sufficient to outweigh the intrusion
                 such procedures may entail. Separates person’s house into 2 areas:
                 i) area near the arrest – no reasonable suspicion or probable cause necessary
                 ii) broader entire house (rest of the house) – reasonable suspicion of danger – that
                     someone else is in the house, they can search the rest of the house for that
                     person only, not for evidence; but if they find something (evidence) in plain
                     view, they can seize it.
      b. Personalty
         (1) Police may briefly seize items upon reasonable suspicion that they are or contain
             contraband or evidence, but the seizures must be limited.
             (a) Place – 90-minute detention of luggage reasonably suspected to contain drugs was
                 unconstitutional. There is authority for short term investigatory hold on property.
                 Here, 90-minute and Friday–Monday hold on luggage was too long; for that long
                 a period officers needed probable cause.
             (b) Possible scenarios where the 90-minute hold may have been valid:
                 i) if police were investigating as quickly as they could in the 90 minutes
                 ii) if investigatory stop was okay, the dog sniffing ripened it to probable cause,
                     and could not get a warrant from Fri.–Mon., then this 2 day hold probably ok
      c. Car Frisk
         (1) Officer may search the vehicle, even if the officer has not arrested the occupant and
             has ordered the occupant out of the vehicle, provided the search is limited to those
             areas in which a weapon may be placed or hidden and officer possesses a reasonable
             belief that the occupant is dangerous. – Michigan v. Long
             (a) Investigatory search of the car, looking only for weapons, is a valid Terry “frisk”
                 of the passenger compartment of car.
*** SUMMARY of when Probable Cause or Reasonable Suspicion Required ***
      d. No PC or reasonable suspicion (courts permit limited search in these circumstances)
         (1) near sweep
         (2) Belton
         (3) inventory search
         (4) Chimel wingspan search
         (5) car passengers and drivers who leave car after traffic stop
      e. Reasonable Suspicion only (PC not needed)


                                               39
      (1) Terry
      (2) Frisk of car – Michigan v. Long
      (3) Luggage – only detention of luggage (they could do dog sniff on it), not search inside
6. Regulatory and Special Needs Searches
   a. Introduction
      (1) Searches not done for purposes of criminal investigation
          (a) ordinarily done for some overriding social policy like public health
          (b) but some turn into criminal matters like w/ DUI checkpoints
      (2) Administrative inspections and searches:
          (a) Searches of private residences and businesses (warrant required)
          (b) Inventory searches
          (c) Search of airline passengers
          (d) Parolees
          (e) Govt employees’ desks and files
          (f) Special Needs searches
              i) Public school searches
              ii) Border searches
              iii) Drug testing
      (3) Generally admin searches are upheld.
      (4) ** Note: Although Camara–See require warrants administrative search, no one really
          requires that inspectors get warrant before search.

   b. Administrative Searches
      (1) Warrant required for searches of private residences and businesses – Camara &
          See
          (a) Camara and See – except in event of emergency or consent, residences and
              commercial buildings may not be entered to inspect for administrative code
              violations without an administrative search warrant.
          (b) Warrant requires probable cause, but different form of probable cause
              i) does not require individualized suspicion
              ii) instead, its P.C. based on general 4th Amend. standard of reasonableness
              iii) showing of general and neutral enforcement plan will justify issuance of
                   warrant
              iv) PC also satisfied if there are reasonable administrative standards that mandate
                   this search
              v) provides external standard for inspection
              vi) watered down warrant requirements – reasonable suspicion not needed

       (2) Warrant not required for searches of business in highly regulated industries,
           even in absence of emergency or consent – Burger (1987)
           (a) Rationale:
               i) urgent public interest
               ii) theory that the business has impliedly consented to warrantless searches by
                   entering into a highly regulated industry
           (b) Industries include: liquor, guns, strip mining, automobile junkyards (Burger)
           (c) Excluded industries – not closely regulated, warrant required:
               i) car leasing and general manufacturing, OSHA
           (d) Warrant also not required for seizure of spoiled or contaminated food.


                                           40
c. School Searches
   (1) Special needs search
   (2) Warrant or PC not required for searches conducted by public school officials
   (3) 2 conditions (T.L.O.)
       (a) reasonable grounds for search and
       (b) search is not excessively intrusive in light of the age and sex of the student and
           the nature of the infraction
   (4) 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
   (5) can search student lockers and backpacks etc.
   (6) Rationale: Nature of school environment.
   (7) Random drug testing of student athletes and students participating in any
       extracurricular activity is reasonable and allowed. (Earls)

d. Border Searches
   (1) Searches at borders or its functional equivalent
       (a) Neither citizens nor noncitizns have any 4th Amend. rights at the border or its
           functional equivalent  national sovereignty.
           i) country has right to control people in and out of their own borders
       (b) Functional equivalent – e.g. point near border where several routes all leading to
           border merge
       (c) Thus borders typically enjoy greater protection – standards more lax for border
           searches
   (2) Roving Patrols
       (a) STOPS
           i) Roving patrols inside U.S. border may stop a car for questioning of occupants
               if officer reasonably suspects that car may contain illegal aliens, but the
               apparent Mexican ancestry of the occupants alone cannot create a reasonable
               suspcion – Brignoni-Ponce (1975)
       (b) SEARCHES
           i) Roving patrol inside U.S. border may NOT conduct a warrantless search
               unless the requirements of one of the exceptions to the warrant requirement,
               such as the automobile exception (probable cause) or consent, are met. –
               Almeida-Sanchez (1973)
   (3) Fixed Checkpoints
       (a) Border officials may stop car at fixed checkpoint inside border for questioning of
           occupants, for purpose of intercepting illegal immigrants, even without a
           reasonable suspicion that the car contains illegal aliens. – Martinez–Fuerte
       (b) Officials may disassemble stopped cars at such checkpoints, even without
           reasonable suspicion. – Flores–Montano (2004)
       (c) But Court has suggested that nonroutine, personal searches at border (e.g. strip
           searches or body cavity searches) may require probable cause
   (4) Airport Searches and Detentions
       (a) Officials have authority to search person and luggage at airports if entering the
           U.S. (Not for domestic flights, only international)
       (b) If officials have reasonable suspicion that traveler is smuggling contraband in her
           stomach, they can detain her for a time reasonable under circumstances.


                                         41
           i) Rationale: stopping smuggling is important yet very difficult; stomach
               smuggling gives no external signs that would enable officials to meet probable
               cause standard in order to conduct search
           ii) Montoya de Hernandez – upheld 16-hour detention until traveler, who
               refused an x-ray, had a bowel movement.

e. International Mail
   (1) Permissible border searches include opening of international mail by postal
       authorities if they have reasonable cause to suspect that mail contains contraband
       (a) authorities cannot read any correspondence inside mail they open – Ramsey

f. Checkpoints
   (1) Suspicionless seizures at highway sobriety checkpoints for purpose of combating
       drunk driving are constitutional.
       (a) Sitz (1990) – Held: State’s use of highway sobriety checkpoints for purpose of
           combating drunk driving does not violate 4th Am. Brown balancing: state’s
           interest in preventing accidents caused by drunk drivers, effectiveness of sobriety
           checkpoints in achieving that goal, and level of intrusion on person’s privacy
           caused by the checkpoints. Problem of drunken driving highlights state’s great
           interest in preventing accidents caused by drunk drivers. Measure of intrusion
           into person’s privacy is slight. Balance of state’s interest in preventing drunken
           driving, extent to which system can reasonably said to advance that interest, and
           degree of intrusion upon individual drivers who are briefly stopped, weighs in
           favor of the program.
   (2) Suspicionless seizures at highway checkpoints with primary purpose of
       discovery and interdiction of illegal narcotics are unconstitutional.
       (a) Edmond (2000) – Highway checkpoint for drug possession. Too much of general
           interest in crime control – checkpoint programs w/ this purpose have never been
           approved. Drug stops not permitted, although drunk-driving stops were
           appropriate. Court believed that there must be reasonable suspicion that this
           PARTICULAR car had suspicions of drunk-driving.
       (b) There is a difference between road-blocks solely to enforce criminal laws, which
           are NOT enforceable and laws that are to ensure public safety, which are
           enforceable. Edmond had a higher return rate than Sitz, however, Court believed
           that it cannot encourage check points for law enforcement purposes, only for
           public safety concerns.
   (3) Upheld checkpoint to find witnesses to car accident.
       (a) Illinois v. Lidster (2004) – There was an accident and the police set up road-
           blocks in order to ask cars whether or not they had information concerning the
           accident. Without the road blocks, the witnesses could have been gone and no
           longer remembered the facts. The Court believed that this was enough of an
           emergency to require that the individuals be stopped at the checkpoint.

g. Drug Testing
   (1) Drug testing is routine for certain professions. If you can come up with a good reason
       why drugs are an issue, the Court would allow the testing to take place.
   (2) Although govt-required drug testing constitutes a search, Court has upheld such
       testing without a warrant, probable cause, or even individualized suspicion when


                                        42
      justified by special needs beyond the general interest of law enforcement.
(3)   Govt can require railroad employees who are involved in accidents to be tested for
      drugs after the accidents. The railway workers were drug-tested without reasonable
      suspicion that they were involved with drug use. The theory was that they were
      involved with operating machinery and as such, they should not be on drugs so the
      correlation permitted the drug tests without being considered a constitutional
      violation. – Skinner v. Railway Labor Executives’ Association (1989)
(4)   Govt can require persons seeking Customs positions connected to drug interdiction to
      be tested for drugs. There is special need for such testing b/c persons employed will
      have ready access to large quantities of drugs. – National Treasury Employees
      Union v. Von Raab (1989)
(5)   Random drug testing of students participating in any extracurricular activity is
      reasonable and allowed b/c of special interest schools have in safety of their students.
      – Bd. of Education v. Earls
      (a) High school athletes were forced to drug testing. This was considered
          constitutional because they believed if the students are involved with government-
          ran extra-curricular school activities, then the government interest is high in
          ensuring that students are not using drugs when participating in school activities
          (additionally, there was no reasonable expectation to privacy.)
(6)   Govt may not require candidates for state offices to certify that they have taken a drug
      test w/in 30 days prior to qualifying for nomination or election–no special need for
      such testing. – Chandler v. Miller (1997)
      (a) Georgia passed a law that every political candidate had to be drug tested bc they
          did not want to have politicians as negative role models. SCOUS struck it down
          bc they said that there was no problem with Georgia candidates. The way that the
          testing was done could have easily been evaded anyway (candidates could have
          stopped taking the drugs a number of days before the test).
(7)   Special needs do not justify warrantless and nonconsensual urinalysis test to
      determine whether a pregnant woman has been using cocaine, where the main
      purpose of the testing is to generate evidence that may be used by law enforcement
      personnel to coerce women into drug programs. – Ferguson (2001)
      (a) Pregnant mothers were drug-tested. The procedure involved law enforcement
          personnel. Without law enforcement, this may have been a different issue and it
          may have been more like the student athlete case. There is a strong government
          interest to deter pregnant women from using drugs, however, the problem is in
          this situation, the testing appeared to be focused more on criminal prosecution
          rather than helping out the mothers.




                                       43
K. Remedies for Fourth Amendment Violation
   1. Intro.
      a. Sometimes there is a fourth amendment violation without any actual remedy to the
          problem. The exclusionary rule is the primary remedy but there are other remedies for
          violations.
      b. Some remedies:
          (1) Civil Rights Action  You might be able to fine the officer for making a mistake.
          (2) Administrative Remedies
          (3) Civil suits or injunctions
          (4) Exclusionary Rule
              (a) Prevents evidence from admission when the evidence was improperly obtained.
              (b) Punishes society: you are a victim of the crime and the defendant is released bc
                  the officer screws up.
              (c) The officers do not care if the evidence is used in trial or not.
                  i) Ex: if the heroine is seized in a bad search, it does not go back to the
                      defendant, but instead, it permanently is taken away.
                  ii) The drugs are confiscated and taken away irrespective of the illegal search. A
                      lot of officers may feel justified that they have the drugs now off of the street.

   2. Exclusionary Rule: Background
      a. Cases:
         (1) Weeks—1914
         (2) Wolf—1949
         (3) Rochin—1952
         (4) Mapp—1961

       b. Exclusionary Rule = judge-made doctrine that prohibits the introduction, at a
          criminal trial, of evidence obtained in violation of D’s 4th, 5th, or 6th Amend. rights.

       c. Rationale:
          (1) Main purpose = deter govt (mainly police) from violating a person’s constitutional
              rights
              (a) deterrence of govt misconduct
          (2) If govt cannot use evidence obtained in violation of a person’s rights, it will be less
              likely to act in contravention of those rights.
          (3) Serves as one remedy for deprivation of constitutional rights.
          (4) BUT note that Today, 4 USSC Justices think exclusionary rule needs to be reduced
              b/c it does not TRULY discourage improper action.

       d. Scope of the Rule – Fruit of Poisonous Tree
          (1) Generally, illegally obtained evidence must be excluded, but also all evidence
              obtained or derived from exploitation of that evidence – the latter is the tainted fruit
              of the poisonous tree (tainted fruit of the illegally obtained evidence). – Nardone
              (1939) and Wong Sun (1963)



                                                 44
e. Limitations on Exclusionary Rule:
   (1) Inapplicable to grand juries
   (2) Inapplicable to civil proceedings
   (3) Inapplicable to internal agency rules
   (4) Inapplicable tin parole revocation proceedings
   (5) Inapplicable where there is good faith reliance on existing law, defective search
       warrant, or clerical error
       (a) but see exceptions to good faith defense for reliance on search warrant
   (6) Use of excluded evidence for impeachment purposes
       (a) some illegally obtained evidence that is inadmissible in the state’s case in chief
           may nevertheless be used to impeach D’s credibility if he takes the state at trial.
   (7) Miranda violations
       (a) Fruits derived from statements obtained in violation of Miranda may be
           admissible despite exclusionary rule

f. Exclusionary rule established. In a federal prosecution the 4th Amend. barred the
   use of evidence secured through an illegal search and seizure. – Weeks (1914)
   (1) In federal court, the evidence was not admitted, but in state court, it could come in.
       This came to be known as the “Silver Platter” doctrine. (4th Amend. case)
   (2) Created bad policy bc the federal officers would call the state officers to get the
       evidence because it did not cover action by state officials.

g. Exclusionary not applicable to states, so 4th Amend. does not forbid the admission of
   evidence in state trials obtained by an unreasonable search and seizure. – Wolf v.
   Colorado (1949)
   (1) Court still not applying the Bill of Rights to the states, so Weeks exclusionary rule not
       imposed upon the States. Evidence obtained in violation of 4th Amend. can be used in
       state criminal case. (4th Amend. case.)

h. Evidence obtained by physical force could not be used against D at state trial b/c
   due process violation, not b/c of exclusionary rule (still inapplicable to states) –
   Rochin v. California (1952) (“The Vomit Case”)
   (1) Rochin was suspected of possessing morphine. He swallowed the pills. The police
       tried to remove the pills unsuccessfully. They took him to the doctor and caused him
       to take a medic which caused vomiting and then the capsules were retrieved and used
       against him at trial. Rochin argued the exclusionary rule, but the problem is that the
       Fourth Amendment did not apply to the states bc there was not an exclusionary rule in
       1952, against the state court. Then he argued it was a due process violation. Court
       agreed – the behavior shocks the confidence and evidence by that behavior is
       inadmissible. Evidence inadmissible on due process grounds (not b/c of exclusionary
       rule, which was inapplicable to the states at this time).
   (2) Fourth Amendment still does not apply to the states.
   (3) We do not know how far the due process clause right extends, however, physical
       violence is definitely covered. Typically, counsel will try and use both due process
       and Fourth Amendment to win on one if the other fails.
   (4) Many courts have applied Rochin to understand that it applies only to physical
       violence.
   (5) Misc. Post-Rochin Cases:


                                         45
           (a) California case: D was spied upon, the Court argued it was not a DPC violation,
               but it may have been a Fourth Amendment case.
           (b) Sacramento case: High speed chase which ended in the defendants death. The
               Court believed that the police behaved recklessly but it was not enough to rise to
               the level of Rochin and a violation of the DPC. Even reckless driving does not
               rise to the level of a DPC violation.
           (c) Rochin is a very LIMITED case—it does not apply broadly, it is interpreted
               narrowly and typically is only applied in limited situations.

   i. Exclusionary rule now applicable to states – Mapp v. Ohio (1961)
      (1) D had obscene materials that were uncovered and admitted against the D.
      (2) All evidence obtained by searches and seizures in violation of the Constitution is
          inadmissible in a state court. Exclusionary rule now applicable to states.
          Now, every state now must have an exclusionary rule for violation of the Fourth
          Amendment.
      (3) Purpose of 4th Amend. rule under Mapp:
          (a) deter police from conducting bad searches
          (b) judicial integrity
              i) If govt official violates the rules of 4th Amendment, then the court should not
                  award or recognize the rights of the police officer.
          (c) maybe encourages police to LIE to prevent the truth that way they can say they
              had a legitimate fourth amendment action.
          (d) Shapes police policy  increases police training.

3. Exception to Exclusionary Rule
   a. Intro.
      (1) Exclusionary rule is the primary remedy for 4th Amend. violations
          (a) But there are situations when Court is suggesting that the 2 goals (deterring poor
              police activity and judicial integrity) are not served by the Rule.
      (2) As a matter of federal, Constitutional law, exclusionary rule does not apply to:
          (a) Federal Grand Jury hearings
          (b) Probation or parole hearings
          (c) Habeas corpus proceedings
          (d) Civil proceedings
          (e) Sentencing hearings
      (3) E.R. does not apply for impeachment purposes
          (a) Some illegally obtained evidence that is inadmissible in the state’s case in chief
              may nevertheless be used to impeach D’s credibility if he takes the stand at trial.
              i) E.R. does not apply if evidence is used to impeach. If D testifies that there is
                  no heroine in their pocket, the illegally seized heroine may be used to impeach
                  the D in that NARROW situation. – Walder v. United States (1954)
              ii) Impeachment exception does NOT apply when the defendant does not testify.
                  – James v. Illinois (1990)
          (b) Voluntary confessions in violation of Miranda
              i) An otherwise voluntary confession taken in violation of Miranda is admissible
                  for impeachment purposes – Harris v. NY (1971)
              ii) A truly involuntary confession is not admissible for any purpose – Mincey v.
                  AZ (1978)


                                            46
       (c) Fruit of Illegal Searches
           i) Prosecution may use evidence obtained from illegal search that is inadmissible
               in its direct case to impeach D’s statements made in response to proper cross-
               exam reasonably suggested by D’s direct exam – Havens (1980)
           ii) But such illegally obtained evidence cannot be used to impeach the trial
               testimony of witnesses other than the D – James

b. Good Faith Exception to Exclusionary Rule – Leon
   (1) E.R. does not apply when police act in reliance in good faith on a defective search
       warrant. – Leon
   (2) If good faith reliance present, fruits of a illegal search are admissible against D
       (a) Finding that warrant was invalid b/c it was not supported by PC will not entitle D
           to exclude the evidence obtained under the warrant. (Leon)
       (b) Evidence obtained by police in reasonable reliance on facially valid warrant may
           be used by prosecution, despite an ultimate finding that the warrant was not
           supported by PC.

   (3) Leon’s 3 Requirements for E.R. not to apply:
       (a) Officer’s good faith reliance on the warrant must be objectively reasonable
       (b) Must not be obtained by the police’s perjury or recklessness for the truth.
       (c) Magistrate can not abandon duties and make a legitimate good faith determination
           of probable cause (without Magistrate failing to uphold its own duties)

   (4) Rationale: One of main purposes of E.R. is to deter improper police conduct, and this
       purpose cannot be served where police are acting in good faith.

   (5) BUT – exceptions to good faith reliance on search warrant (Leon & Sheppard) –
       Police officer cannot rely on defective search warrant in good faith if:
       (a) affidavit underlying warrant is so lacking in probable cause that no reasonable
           police officer would have relied on it;
       (b) warrant is defective on its face (e.g. fails to state w/ particularity the place to be
           searched or things to be seized)
       (c) Official obtaining warrant lied to or misled the magistrate
       (d) Magistrate has wholly abandoned his judicial role.

   (6) United States v. Leon (1984) – Before they searched D’s house, the police were very
       careful about obtaining the warrant. The warrant application was reviewed by many
       lawyers who believed the warrant was adequate, it was submitted before the judge and
       the judge issued a warrant. Govt did not argue that there was probable cause – argued
       that there is an exception to the exclusionary rule for good faith reliance on a warrant.
       Court agreed. Held: When certain requirements are met, if police get a warrant, there
       is no exclusionary rule, even if the warrant is bad. A warrant, even a BAD one,
       isolates the activity from the exclusionary rule. Fruits of this bad search are thus
       admissible.
       (a) Reliable physical evidence seized by officers reasonably relying on a warrant
           issued by a detached and neutral magistrate leads to the conclusion that such
           evidence should be admissible in the prosecution’s case in chief. Weighed costs
           and benefits of suppressing that evidence.


                                         47
        (b) This case eliminates Aguilar, Spinelli, and Gates cases by suggesting that as long
            as the warrant is present, the search may be bad, but there is no exclusionary rule.
        (c) Leon case is ONLY about the remedy, not about whether or not there was a
            violation of the Fourth Amendment. Leon does not make the warrant VALID, it
            just says that there is no remedy for it.

c. Reliance on Statutes and Judicial Decisions
   (1) E.R. does not apply when police act in good faith based on:
       (a) case law later changed by another judicial opinion – Peltier (1975)
       (b) a facially valid statute or ordinance as it then exists, even if the law is declared
           unconstitutional or the law is changed by court decision – DeFeillippo (1979)
       (c) a clerical error not made by police – AZ v. Evans (1995)
           i) E.R. does not apply to evidence obtained during an arrest made on the basis of
               a computer report that, due to clerical errors not made by police, indicated that
               there was an arrest warrant outstanding against the D.
   (2) Rationale: One of main purposes of E.R. is to deter improper police conduct, and this
       purpose cannot be served where police are acting in good faith.

d. Fruit of Poisonous Tree
   (1) Intro.
       (a) Generally, illegally obtained evidence must be excluded, but also all evidence
           obtained or derived from exploitation of that evidence
           i) the latter is the tainted fruit of the poisonous tree (tainted fruit of the illegally
              obtained evidence). – Nardone (1939) and Wong Sun (1963)
       (b) Evidence acquired that violates the 4th Amendment shall not be used in court
           against the defendant (exclusionary rule) – Silverthorne Lumber Co. (1920)

        (c) Exception – Breaking the Causal Chain
            i) Under fruit of poisonous tree doctrine, E.R. can be very broadly applied.
            ii) Recently Court has begun to narrow its scope by balancing:
                 a) its purpose – deterrence of govt misconduct, against
                 b) its costs – exclusion of probative evidence
            iii) Court generally will NOT apply E.R. when it will not likely deter govt
                 misconduct
                 a) If there is weak link between govt misconduct and the evidence (i.e. it is
                    not likely that the misconduct caused the evidence to be obtained), Court
                    will probably not exclude the evidence.

    (2) Attenuation
        (a) Attenuation  intervening act of free will
        (b) An intervening act of free will by D will break the causal chain between the
            evidence and the original illegality and thus remove the taint.
        (c) Attenuation test:
            i) Whether granting establishment of the primary illegality, the evidence to
                which instant objection is made has been come at by exploitation of that
                illegality or instead by means sufficiently distinguishable to be purged of the
                primary taint.
            ii) Wong Sun (1963) – D was released on his own recognizance after an illegal


                                           48
            arrest (without probable cause or reasonable grounds) but later returned to the
            station to confess. This voluntary act of free will removed any taint from the
            confession – the connection between the initial arrest and the statement had
            become so attenuated as to dissipate the taint. Thus the confession could be
            used at trial against D.

(3) Independent Source
    (a) Evidence is admissible if prosecution can show that it was obtained from a
        source independent of the original illegality.
        i) IS doctrine applies so long as a later, lawful seizure is genuinely independent
             of an earlier tainted one.
        ii) General sense of IS doctrine identifies all evidence acquired in a fashion
             untainted by the illegal evidence-gathering activity.
        iii) Murray v. U.S. (1988) – Police illegally search warehouse and find drugs, but
             do not seize them. Police later return to warehouse w/ valid search warrant
             based on information totally unrelated to the first illegal search. If police seize
             the drugs pursuant to the valid warrant, drugs are admissible.

(4) Inevitable Discovery
    (a) If prosecution can show that police would have discovered the evidence whether
        or not they had acted unconstitutionally, evidence is admissible. – Nix (1984)

(5) Home Violations: Arrests and Knocks
    (a) Harris–Hudson way Around the Exclusionary Rule
    (b) Where officers improperly arrest D at home (w/ P.C. but w/o warrant), D
        confesses, then confesses again at police station, the home confession is
        inadmissible but the station house confession is admissible b/c it’s not the
        fruit of the unlawful arrest.
        i) NY v. Harris (1990) – Police have probable cause to arrest D. Go to D’s
             home and improperly arrest him w/o a warrant. D confesses at home, and
             police take him to station. D confesses again at station.
        ii) The home confession must be excluded from evidence since it is the fruit of
             the illegal arrest, but station house confession is admissible b/c it is not the
             fruit of the unlawful arrest.
        iii) B/c police had probable cause to arrest D, they did not gain anything from the
             unlawful arrest–they could have lawfully arrested D the moment he stepped
             outside of his home and then brought him to the station house for his
             confession.
        iv) Thus, the station house confession was not an exploitation of the police
             misconduct – it was not the fruit of the fact that D was arrested at home as
             opposed to somewhere else.

    (c) Where officers violate the knock and announce rule, exclusionary rule will
        not be applied to exclude evidence resulting from the search. – Hudson (2006)
        i) Rationale: Exclusionary remedy is too attenuated from purposes of knock and
           announce rule of protecting human life and limb, property, privacy and
           dignity.
           a) Cost of excluding relevant evidence b/c of claims that the knock and


                                      49
                           announce rule was violated is too high when compared to the deterrence
                           benefit that will be gained.
                        b) There are other deterrents to prevent officers from violating the rule, such
                           as civil suits and internal police disciplinary sanctions.
IV.   INTERROGATIONS                           (14th D.P., 5TH AND 6TH AMENDMENTS)

  A. Introduction
     1. Considerations
        a. Due process – 14th Amend.
           (1) protects against involuntary confessions
        b. 4th Amend.
           (1) search and seizure limitations
        c. 5th Amend.
           (1) gives D rights against testimonial self-incrimination
        d. 6th Amend.
           (1) gives D rights re: assistance of counsel

      2. Application of Exclusionary Rule
         a. GR = exclusionary rule applies to confessions obtained in violation of Constitution

      3. Interrogations  confessions

  B. Due Process Limits: Torture and Less Obvious Methods of Coercion
     1. Intro.
        a. For confessions to be admissible, must be voluntary  14th Am. Due Process req.
           (1) Voluntariness determined w/ totality of circumstances, including: (Spano)
               (a) D’s age, education, mental and physical condition
               (b) setting, duration, and manner of interrogation
           (2) Spano v. NY (1959) – D turned himself in, attny told him not to answer questions
               while in custody then left D there; police began questioning persistently and
               continuously, D refused to answer. Denied his request to see attny. Questioned for 5
               hours, dinner at 11, at midnight transferred to other police station, questioning
               continued. After refusing to talk, brought his good friend in ordered him to play on
               D’s sympathies for confession, talked about how this was bad for friend’s wife and
               kids etc. D was born in Italy, had jr. high education.
               (a) D’s conviction reversed because his confessions were unlawfully coerced. D’s
                   will was overborne by official pressure, fatigue and sympathy falsely aroused
                   (when they made his friend who was police officer go in and try to convince him
                   to confess b/c it would be better for the friend and his family etc.).
               (b) Must look at intent of police officers while questioning a D. If their intent is to
                   procure a statement from D on which they could convict him, the confession
                   obtained must be examined with the most careful scrutiny to ensure D’s due
                   process rights were not violated.

         b. Confession involuntary if obtained by physically beating D, torture, or coercion (if
            coercion so egregious). – Brown
            (1) Brown v. Miss. (1936) – Extreme torture of D to get him to confess – hung him from
                tree by rope, beat him etc. Confessions obtained by torture during interrogation were

                                                 50
          coerced, due process was violated, and inadmissible. Due process requires procedures
          must comply w/ fundamental fairness, fundamental principles of liberty and justice.
          Due process is violated by coercion; when coercion is so egregious, the resulting
          confessions are inadmissible. Court applied due process exclusionary rule to states.
   c. Look at every due process confession case on the merits, on case by case basis.
      (1) Factors:
          (a) police conduct
              i) incl. manner of interrogation
          (b) individual characteristics of confessing person
              i) how vulnerable were they to whatever the police did
              ii) incl. D’s age, education, mental and physical condition
      (2) Fykes v. Alabama (1957)
      (3) Where a prisoner, held incommunicado, is subjected to questioning by officers for
          long periods, and deprived of the advice of counsel, the court will scrutinize the
          record with care to determine whether by the use of his confession, he is deprived of
          liberty or life through tyrannical or oppressive means. Case by case basis. – Lisenba

2. Police Interrogation Without Torture
   a. Police officer’s illegal conduct, w/ prolonged questioning of prisoner before arraignment
      in absence of counsel did not coerce D’s confessions. Police conduct was not enough to
      constitute coercion and not no due process violation. – Lisenba v. California (1941)
      (1) D had no formal education but was man of intelligence and business experience.
           Interrogation was long, no sleep but gave him meals. He was not threatened or
           mistreated by officers questioning him. (But D claims he was slapped once.)

   b. Confession was involuntary and coerced when fellow inmate and FBI informant told D he
      would protect him in prison if he told him more the crime, etc. and D confessed. This was
      more of psychological coercion, confession involuntary, and due process violated. –
      Fulminante (1991)

   c. Physical coercion vs. Psychological coercion
      (1) Physical coercion  likely due process violation
      (2) Psychological coercion  often due process violation, but not always

   d. Only official compulsion will render confession involuntary for 14th Am. purposes.
      (1) Confession not involuntary merely b/c it is product of mental disease that
          prevents the confession from being of D’s free will.
      (2) Connelly (1986) – D confessed committing murder to police officer after being
          commanded by God to do so (he was schizophrenic); confession was voluntary and
          due process not violated. There was no police misconduct – there must be govt
          misconduct before due process can be violated.

   e. Conviction will not necessarily be overturned if involuntary confession was
      erroneously admitted into evidence.
      (1) Harmless error test applies, and conviction will not be overturned if govt can show
          that there was other overwhelming evidence of guilt. – Fulminante

   f. Finding of voluntariness by trial court does not preclude D from introducing evidence to


                                           51
           jury of circumstances of confession in order to cast doubt on its credibility. – Crane v.
           Kentucky (1986)


C. Self-Incrimination (5th Amendment) Limits
   1. Introduction
       a. 5th Amend  gives D rights against testimonial self-incrimination
          (1) No person shall be compelled to be witness against himself
          (2) Person shall not be compelled to give self-incriminating testimony
          (3) Applicable to states via 14th Amend.

       b. Exclusionary rule and Miranda violations
          (1) Fruit of poisonous tree is not extended to Miranda violations
          (2) Thus fruits derived from statements obtained in violation of Miranda may be
              admissible despite exclusionary rule
          (3) It is extended to due process; fruit of poisonous tree theory applies only to 4th Amend.
              violations, not Miranda

       c. McNabb–Mallory Rule: Confessions are admissible unless they’re involuntary.
          (1) Violation of the statute w/o unnecessary delay created an exclusionary rule for its
              violation. (This is not constitutional and not binding on states).
          (2) Rule superceded by statute  6 hour safe harbor rule:
              (a) confession made w/in 6 hours of arrest is presumed voluntary

       d. Massiah (1964) [6th Amend. case] – D has 6th Amend. right to counsel where adversary
          judicial proceedings have begun – e.g. formal charges have been filed.
          (1) Thus, once D is indicted, he has right to counsel and cannot be interrogated in the
              absence of counsel.
          (2) Thus, 6th Amend. right to counsel does not apply in precharge custodial interrogations

   2. Abandonment of voluntary-involuntary test – Foreshadow of Miranda
      a. Escobedo (1964) [6th Amend. case]
         (1) Held: Where investigation is no longer general inquiry into unsolved crime but begins
             to focus on particular suspect, who is in police custody and makes incriminating
             statements during interrogation, and who requested and was denied an attny, received
             no warning of his absolute constitutional right to remain silent, he has been denied
             assistance of counsel and self-incrimination rights violated, both in violation of 6th
             Amend. [narrow holding]. Court has limited the holding of Escobedo to its facts.
             (a) D not yet indicted, but 6th Amend. still applied. Confession was inadmissible for
                 6th Amend. violation. Foreshadowing of Miranda (right to counsel requirement)

   3. Miranda v. Arizona (1966)

       a. The Holding:
          (1) 5th Amend. privilege against compelled self-incrimination became basis for ruling
              upon admissibility of a confession.
          (2) Miranda warnings and a valid waiver are prerequisites to admissibility of any
              statement made by the accused during custodial interrogation.


                                                52
   (3) Anyone in police custody and accused of a crime, no matter how minor a crime, must
       be given Miranda warnings prior to interrogation by police. – Berkemer v. McCarty
       (1984)
   (4) Miranda warnings provide procedural safeguards to:
       (a) secure privilege against self-incrimination and
       (b) ensure that the statements were truly the product of free choice
   (5) Prosecution may not use statements, whether exculpatory or inculpatory, stemming
       from custodial interrogation of the D unless it demonstrates the use of procedural
       safeguards effective to secure the privilege against self-incrimination.

b. Miranda Warnings:
   (1) Person in custody must, prior to interrogation, be clearly informed that:
       (a) He has right to remain silent
       (b) Anything he says can be used against him in court
       (c) He has right to presence of attorney
       (d) If he cannot afford an attorney, one will be appointed for him if he so desires.

c. Waiver of Miranda Rights
   (1) Waiver  Knowingly and intelligently
       (a) burden on govt to prove waiver
   (2) After warnings given and such opportunity afforded him, he may knowingly and
       intelligently waive these rights and agree to answer questions or make a statement.
   (3) But unless and until such warnings and waiver are demonstrated by the prosecution at
       trial, no evidence obtained as a result of the interrogation can be used against him.

d. The Case
   (1) Facts: Four cases, heard to determine the admissibility of statements obtained from D,
       who was subjected to custodial police interrogation, and the necessity for procedures
       assuring that defendant was accorded his 5th Amend. privilege not to be compelled to
       incriminate himself. Ds were not given a full and effective warning of his rights at
       the outset of the interrogation. Incommunicado interrogations of individuals in a
       police-dominated atmosphere, resulting in self-incriminating statements without full
       warnings of constitutional rights.
   (2) Held: In all cases here, the statements were obtained from D under circumstances that
       did not meet constitutional standards for protection of the privilege. 5th Amend.
       privilege against self-incrimination not secured, and thus statements may not have
       been product of free choice.

e. Misc. Miranda
   (1) Miranda warnings need not be verbatim, as long as substance of warning is there.
   (2) No need to repeat warnings merely b/c of break in interrogation
       (a) unless the time lapse has been so long that a failure to do so would seem like an
           attempt to take advantage of D’s ignorance of his rights.
   (3) Voluntariness not a factor – Miranda does not ask if confession was voluntary or
       involuntary
       (a) If Miranda is complied with, increases chances that confession and waiver are
           voluntary
       (b) Repeals McNabb–Mallory rule (confessions admissible unless involuntary)


                                         53
      (4) Miranda only applies in narrow category  only in custodial interrogations
          (a) Miranda right to counsel only applies in context of custody – after person has
              been taken into custody or otherwise deprived of his freedom of action in any
              significant way.
      (5) Court concerned about coercive nature of custodial interrogation, but don’t want to
          get rid of it completely.

4. Constitutional Basis of Miranda
   a. Political Background

   b. Miranda is constitutional decision and Congress cannot eliminate Miranda
      requirements by statute.
      (1) Miranda based on requirements of 5th Amend. as made application to states through
          14th Amend. Thus it may not be overruled by act of Congress.
      (2) Dickerson (2000) – Invalidated federal statute that purportedly eliminated Miranda’s
          requirements that persons in custody and being interrogated be informed of the right
          to remain silent and the right to counsel. Congress may not legislatively supercede
          the Court’s decisions interpreting and applying the Constitution.
          (a) After Miranda, Congress enacted statute that in effect overruled Miranda,
              claiming that Marbury v. Madison allowed them to do so b/c Miranda was not a
              constitutional decision. Statute, 18 USC § 3501, was in effect for 30 years but
              was not really enforced, so didn’t come up until 2000. Miranda rejected the
              totality test; Section 3501 reinstates the totality test as sufficient; thus 3501 cannot
              be sustained if Miranda is to remain the law.
          (b) Court declines to overrule Miranda. Miranda and its progeny govern the
              admissibility of statements made during custodial interrogation in both state and
              federal courts.

5. Post-Miranda Developments: Limiting Exclusionary Rule (watering down Miranda)
   a. Generally, evidence obtained in violation of Miranda is inadmissible at trial.
      (1) BUT fruits derived from statements obtained in violation of Miranda may be
          admissible in certain circumstances despite exclusionary rule.

   b. Impeachment
      (1) Confession obtained in violation of Miranda but otherwise voluntary may be used to
          impeach D’s testimony if he takes the stand at trial
          (a) even though such a confession is inadmissible in the state’s case in chief as
              evidence of guilt. – Harris
      (2) But, a truly involuntary confession is inadmissible for any purpose. – Portash
      (3) Prosecutor may not use D’s silence after receiving Miranda warnings to counter D’s
          insanity defense. – Wainwright v. Greenfield (1986)

      (4) If D requests counsel, all questioning must cease unless counsel is present or D
          initiates a resumption of questioning.
          (a) If police initiate further questioning, D’s statements cannot be used in govt’s case
               in chief but can be used to impeach D’s trial testimony,
               i) as long as court finds that D voluntarily and intelligently waived right to
                   counsel. – Harvey (1990)


                                             54
           (b) But, such illegally obtained evidence cannot be used to impeach trial testimony of
               witnesses other than D. – James v. Illinois

       (5) Harris (1971) – confession taken in violation of Miranda could be used to impeach
           D’s testimony if he testified in his defense at trial. Exclusionary rule does not kick
           out all use of Miranda, can be brought in to impeach D, even though statement
           violated Miranda.
       (6) Portash (1979) – Compelled confessions cannot be used for any purpose. D’s
           compelled statements, as opposed to statements taken in violation of Miranda, may
           not be put to any testimonial use against him in a criminal trial.

   c. Fruit of Poisonous Tree
      (1) Fruits derived from statements obtained in violation of Miranda may be admissible
          in certain circumstances despite exclusionary rule.

       (2) Violation of Miranda did not constitute a violation of the underlying 5th Amend.
           right itself.
           (a) Tucker (1974) – Only harm here was that the police conduct departed from the
               prophylactic standards later laid down by this Court in Miranda to safeguard the
               5th Amend. privilege.

       (3) Fruit of poisonous tree doctrine does not apply to a Miranda violation; it does
           apply to 4th Amend. violation. – Patane (1994)
           (a) D made statement w/o Miranda warnings, in his statement he said there was gun
               in house; police found gun; Court held confession was inadmissible b/c Miranda
               violation but gun was admissible.
           (b) If police fail to give Miranda warnings and during interrogation D gives police
               information that leads to nontestimonial evidence, it is unclear whether the
               nontestimonial evidence must be suppressed as the fruit of an unlawful
               interrogation.
           (c) Although no majority opinion on this point, 5 justices held that suppression of this
               nontestimonial evidence (gun) was not necessary.

6. Miranda: Custody
   a. Whether a person is in custody depends on whether person’s freedom of action is denied
      in a significant way.
      (1) The more a setting resembles a traditional arrest (i.e. the more constrained D feels),
          the more likely the Court will consider it to be custody.
      (2) If detention is voluntary, it is not custody. – Mathiason
      (3) If detention is long and is involuntary (e.g. D is in jail on another charge), it will
          likely be held to constitute custody. – Mathas
      (4) Objective test – Berkemer

   b. Custodial interrogation: (Mathiason)
      (1) questioning initiated by law enforcement officers
      (2) after person has been taken into custody
      (3) or otherwise deprived of his freedom of action in any significant way.



                                            55
c. Custodial interrogation  Custody factors
   (1) location
       (a) e.g. police station vs. D’s home
   (2) interrogations in home
       (a) not same coercive environment as in police station
       (b) generally not custody
       (c) BUT if D is handcuffed, or police presence very strong, D was told he’s under
           arrest – these factors could constitute custodial interrogation even though in home
   (3) coerciveness of the environment, not reasons why D is there
   (4) interrogations by non-law enforcement figures (i.e. administrators)
       (a) case by case determination – could trigger Miranda
       (b) Generally Miranda only applies to interrogations by police – does not apply where
           interrogation is by an informant who D does not know is working for police
d. Custodial interrogation  Interrogation factors
   (1) questions asked by law enforcement officers
   (2) small room per Miranda, but not required
   (3) any words or actions on part of police (other than those normally attendant to arrest
       and custody) that the police should know are reasonably likely to elicit an
       incriminating response from the suspect – Innis

e. Mathiason (1977) – Custodial interrogation = Restraint on D, not necessarily physically;
   doesn’t matter whether or not the focus is on the accused; just look at the restraints at the
   time of questioning. Miranda warnings required only where there has been such a
   restriction on a person’s freedom as to render him “in custody.” Here, D was not “in
   custody” – there is no indication that the questioning took place in a context where his
   freedom to depart was restricted in any way; no custodial interrogation.

f. Anyone in police custody and accused of a crime, no matter how minor a crime, must
   be given Miranda warnings prior to investigation by the police. – Berkemer (1984)
   (1) Person subjected to custodial interrogation is entitled to the benefit of Miranda’s
       procedural safeguards, regardless of the nature or severity of the offense of which he
       is suspected or for which he was arrested.
   (2) Thus, even D accused of a misdemeanor traffic offense must be Mirandized.
   (3) BUT routine traffic stops generally NOT custodial
       (a) thus Miranda warnings normally not needed
   (4) Routine traffic stop curtails motorist’s freedom of movement, but it is presumptively
       temporary and brief, and motorist knows that he typically will soon be on his way,
       thus he should not feel unduly coerced.
   (5) Berkemer – Officer stopped D for weaving in and out of traffic. When O noticed D
       had trouble standing, he performed field sobriety test, which D failed. Without giving
       Miranda warnings, O asked D if he had been drinking, which D admitted. Admissible.

g. Objective test – Berkemer
   (1) Initial determination of whether person is in custody depends on objective
       circumstances of interrogation, not on subjective views of interrogating officers or D
   (2) Only relevant inquiry is how a reasonable person in D’s position would have
       understood his situation – would he have believed that he could have left during the
       questioning?


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       (3) The more it looks like a formal arrest, more likely it will be a custodial interrogation
           (a) e.g. if D handcuffed and put in police car
       (4) Examples:
           (a) Officer’s belief that person being questioned is not a suspect cannot bear on
               custody issue unless that view is somehow manifested. – Stansbury (1994)
           (b) Consideration of suspect’s age and inexperience is inappropriate (b/c subjective
               factors) – Yarborough v. Alvarado (2004)

   h. Keohane Test
      (1) Circumstances surrounding the interrogation:
          (a) phsyical atmosphere
          (b) duration
          (c) what happened – e.g. threats or police guns drawn
          (d) how many officers present
          (e) how did D get there – e.g. did he drive himself or taken in police car
      (2) Given those circumstances, would a reasonable person have felt he was not at
          liberty to terminate the interrogation and leave? – Keohane (1995)

7. Miranda: Interrogation
   a. Custodial interrogation  Interrogation factors
      (1) questions asked by law enforcement officers
      (2) small room per Miranda, but not required
      (3) any words or actions on part of police (other than those normally attendant to arrest
          and custody) that the police should know are reasonably likely to elicit an
          incriminating response from the suspect – Innis

   b. Interrogation refers not only to express questioning, but also to any words or actions on
      part of police that police should know are reasonably likely to elicit an incriminating
      response from D. – Innis
      (1) focuses primarily on perceptions of suspect rather than intent of police
   c. BUT, Miranda does not apply to:
      (1) spontaneous statements not made in response to interrogation, although officers must
          give the warnings before any follow-up questioning.
      (2) routine booking questions – e.g. name, address, age – even when process being taped
          and may be used as evidence

   d. Rhode Island v. Innis (1980) – Police comments about danger a gun would present to
      handicapped children, which resulted in robbery suspect’s leading them to weapon, was
      not interrogation when officers were not aware that suspect was peculiarly susceptible to
      an appeal to his conscience.

   e. Break in interrogation–questioning by different police agencies
      (1) When second police agency continues to question D at a point when first police dept.
          terminates its questioning, the impact of an earlier denial of rights by first dept.
          carries over into questioning by second agency. – Westover (1966)

8. Miranda: Waiver
   a. Suspect may waive Miranda rights.


                                             57
   b. Waiver must be knowing, voluntary, and intelligent – Butler
   c. Govt must show valid waive by preponderance of evidence (not heavy burden)
      (1) Presumption against waiver – if govt wants to argue waiver, it has b/p
   d. Court will look to totality of circumstances.
      (1) Subjective test – D must waive his own rights. – Butler
   e. Misc. Waiver:
      (1) D need not be informed of all subjects of an interrogation to effect a valid waiver
      (2) Waiver => 5th and 6th Amend. right
      (3) If D given Miranda warnings and then confesses  NO waiver
      (4) Usually 2-step process – orally and written
      (5) Waiver can occur from actions suggesting waiver, not just orally or written. – Butler
          (a) D can waive without expressly waiving.

   f. Silence
      (1) Waiver will not be presumed from D’s mere silence after warnings are given or from
          the fact that a confession was eventually obtained.
          (a) Must look to totality of circumstances.
      (2) D’s refusal to sign a written waiver when requested to do so is not conclusive as to
          the absence of waiver.
          (a) North Carolina v. Butler (1979) – Miranda held that an express statement can
              constitute a waiver and that silence alone after such warnings cannot do so, but
              did not hold that such an express statement is indispensable to a finding of waiver.

9. Miranda: Invocation of Counsel
   a. Miranda: An accused has 5th and 14th Amend. right to have counsel present during
      custodial interrogation.
      (1) 5th Amend. right to counsel under Miranda applies whenever there is custodial
          interrogation.
   b. D may terminate interrogation by invoking his right to counsel.

   c. At any time prior to or during interrogation D may invoke his Miranda (5th Am.) right to
      counsel
      (1) If D invokes this right, all questioning must cease until:
          (a) D is provided w/ attny or
          (b) D initiates further questioning himself. – Edwards

       (2) Edwards v. Arizona (1981)
           (a) Having exercised his right on the first day to have counsel present during
               interrogation, D did not validly waive that right on the second day. His statement
               made w/o having access to counsel on second day did not amount to a valid
               waiver and was inadmissible.
           (b) When an accused has invoked his right to have counsel present during custodial
               interrogation, a valid waiver of that right cannot be established by showing only
               that he responded to further police-initiated custodial interrogation even if he has
               been advised of his rights.
           (c) Does not matter if D, after asks for attny, talks to attny and thereafter leaves –
               police still cannot go back and try to interrogate D again, even if they read him
               Miranda rights again and he waives them at that second time


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       (d) Edwards rule now extends to interrogation even on new crime.

d. Break in Custody Cases
   (1) If D asked for counsel at interrogation his first crime, then there is a big break and he
       is arrested for second crime, this must be treated as new – D’s asking for counsel first
       time does not transfer over to his second later crime – he must ask for counsel again
       after second crime.

e. Police may not resume questioning about any crime
   (1) Once D invokes right to counsel under Miranda, all questioning must cease – police
       may not even question D about a totally unrelated crime. – AZ v. Roberson (1988)
       (a) Compare: they can were the accused merely invokes right to remain silent
       (b) Rationale: Right to counsel under Miranda is prophylactic right designed by Court
           to prevent police from badgering D into talking without aid of counsel, and this
           purpose served only if all questioning ceases – McNeil v. Wisconsin (1991)
   (2) But, D may initiate resumption of questioning
       (a) D may waive his right to counsel after invoking the right, and thus initiate
           resumption of questioning. – OR v. Bradshaw (1983)

f. Request for an counsel must be specific and unambiguous. – Barrett and Davis (1994)
   (1) Request must be sufficiently clear that a reasonable police officer in the same
       situation would understand the statement to be a request for counsel.
   (2) Examples:
       (a) Request by the accused to see his probation officer is not tantamount to a request
           for an attorney, so that waiver of the right to counsel may still be found. – Fare
       (b) Statement by D: “Maybe I should talk to a lawyer” is not an unambiguous request
           for counsel, and so does not prevent further questioning.
   (3) Limited request for counsel accompanied by a willingness to speak without counsel is
       a valid waiver of the right to have counsel present during interrogation. – Barrett
   (4) Request counsel must be made before or during the interrogation

g. Ambiguities relevant only if part of request. – Davis
   (1) Once D expresses unequivocal desire to receive counsel, no subsequent questions or
       responses may be used to cast doubt on the request and all questioning must cease.
   (2) If request is ambiguous, police may ask clarifying questions, but its not required
       (a) rather, they may continue to interrogate D until an unambiguous request is
            received
   (3) If D agrees to answer questions orally, but requests counsel before making any written
       statements, D’s oral statements are admissible. – Barrett
       (a) D’s agreement to talk constitutes voluntary and knowing waiver of right to
            counsel

h. Counsel must be present at interrogation. – Minnick (1991)
   (1) Mere consultation w/ counsel prior to questioning does not satisfy right to counsel –
       police cannot resume questioning D in absence of counsel.
   (2) But counsel need not be present if D waives right to counsel by initiating the
       exchange



                                         59
10. Miranda: Invocation of Silence
    a. D may terminate interrogation by invoking his right to remain silent.
    b. At any time prior to or during interrogation, D may indicate that he wishes to remain
       silent.
       (1) If so, all questioning related to the particular crime must stop.

   c. Right to silence is crime specific – Mosley (1975)
      (1) If D invokes his right to silence for first crime, this is good only for first crime but not
          second. Thus police may reinitiate questioning if they limit it to the second crime
          (crime that was not the subject of the first questioning)

   d. Police may resume questioning if they “scrupulously honor” the request – Mosley
      (1) At very least, police may not badger D into talking and must wait a significant time
          before reinitiating questioning.
      (2) Police may reinitiate questioning if:
          (a) police immediately ceased questioning upon D’s request and did not resume
              questioning for several hours;
          (b) D was rewarned of his rights; and
          (c) question was limited to a crime that was not the subject of the earlier questioning

11. Miranda and Second Interrogations
    a. If police obtain confession from D without giving him Miranda warnings and then give D
       Miranda warnings and obtain a second confession, second confession is inadmissible if
       the “question first, warn later” mature of the questioning was intentional. – Seibert
       (1) intentional = police used this as scheme to get around Miranda requirements

       (2) Seibert (2004) [Plurality, 4-1-4] – Police procedure – “question first, warn later” –
           No Miranda warnings during first interrogation, wait until they get confession, then
           read warnings and have him restate his confession in second interrogation. Violation
           of Miranda. This midstream recitation of Miranda warnings after interrogation and
           unwarned confession does not comply w/ Miranda’s constitutional requirement. The
           repeated statement of confession after Miranda warnings is inadmissible.
           (a) Souter plurality – goes to the heart of what Miranda warnings are about. The
               question-first police tactic effectively threatens to thwart Miranda’s purpose of
               reducing the risk that a coerced confession would be admitted.

   b. But, second valid confession may be admissible if the original unwarned questioning
      seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

       (1) Elstad (1985) – Held: Though Miranda requires that the unwarned admission must be
           suppressed, the admissibility of any subsequent statement should turn in these
           circumstances solely on whether it is knowingly and voluntarily made. D’s first
           confession was voluntary and admissible. Second confession does not violate
           Miranda. ** Police didn’t have to give Miranda warnings the first time if they
           weren’t going to use that first confession at trial.
           (a) Interrogation #1 – no Miranda – confession  custodial interrogation, but
               voluntary confession
           (b) Interrogation #2 – w/ Miranda – confession  Held: second confession does not


                                             60
               violate Miranda

12. Miranda Exception: Public Safety
    a. If police interrogation is reasonably prompted by concern for public safety, responses to
       questions may be used in court (in case in chief), even though D is in custody and
       Miranda warnings are not given. — Quarles
       (1) Narrow exception.
       (2) Scope of this exception unclear. May be limited to the facts of Quarles.
           (a) In each case, exception will be circumscribed by the exigency which justifies it.
       (3) Objective test
           (a) what a reasonable police officer would ask questions in same situation
           (b) does not depend upon the motivation of the individual officers involved.
       (4) Rationale:
           (a) The need for answers to questions in a situation posing a threat to the public safety
               outweighs the need for Miranda’s prophylactic rule protecting the 5th Amend.’s
               privilege against self-incrimination.
       (5) In rescue situations, court allows police officers to ask suspect where the person is
           that they are trying to find who is still alive, without Miranda warnings.

   b. Quarles (1984) – V accuses man of rape w/ gun and directs police to grocery store.
      Police find him there, chase ensues, catch him w/ empty holster. D was handcuffed then
      asked where he had hidden his gun. Police find gun, place him under arrest and read him
      Miranda warnings, asked more questions about the gun.
      (1) The arrest and questioning were virtually contemporaneous, and police were
          reasonably concerned that the gun might be found and cause injury to innocent
          person.
      (2) Police were in act of apprehending a suspect and were confronted w/ immediate
          necessity of ascertaining the whereabouts of a gun which they had every reason to
          believe the suspect had just removed from his empty holster and discarded in the
          store. If they had to recite Miranda warnings before asking about the gun, the suspect
          might be deterred from responding.

13. Types of Statements
    a. Miranda applies to both inculpatory statements and statements alleged to be merely
       exculpatory.
       (1) Ex: D’s exculpatory statement, when confronted w/ another suspect, that “I didn’t
           shoot Manuel, you did it,” led to the first suspect’s conviction for murder. – Escobedo

14. Miranda not applicable at grand jury hearing
    a. Miranda inapplicable to witness testifying before GJ even if witness under compulsion of
       subpoena
    b. Witness who has not been charged or indicted does not have right to have counsel present
       during questioning, but he may consult w/ attny outside GJ room.
    c. Witness who gives false testimony before GJ may be convicted of perjury even though he
       was not given Miranda warnings.




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D. Sixth Amendment
   1. Intro.
      a. 6th Amend. right to assistance of counsel
          (1) Gideon v. Wainwright – 6th Amend. applies to states
          (2) In all criminal prosecutions, D has right to assistance of counsel.
          (3) Protects Ds from having to face a complicated legal system without competent help.
          (4) D does NOT have to request counsel for the right to attach.
              (a) but as soon as D asks for a lawyer, the questioning must stop (Edwards)
          (5) Right attaches only after formal proceedings have begun. – Massiah
              (a) after formal charges brought against D
          (6) Right is offense specific

       b. Right violated when police deliberately elicit incriminating statement from D w/o first
          obtaining waiver of D’s right to have counsel present. – Brewer

       c. Since Miranda, 6th Amend. right to counsel has been limited to cases where adversary
          judicial proceedings have begun, e.g. formal charges have been filed. – Massiah
          (1) Thus, the right does not apply in precharge custodial interrogations.

       d. Following indictment or arraignment:
          (1) D can request counsel (Jackson)
          (2) D can be appointed counsel (Brewer)
          (3) D can retain counsel (Massiah)
          (4) or D does not request and legal system does not provide counsel (Patterson)

   2. 6th Amend. right to counsel attaches only after formal proceedings have begun– Massiah
      a. Formal proceedings = when formal charges have been brought against D
      b. After formal charges have been brought, D has right to counsel during interrogation.
      c. 6th Amend. right to counsel applicable at post-indictment interrogation whether
          custodial or not.
      d. Massiah applies only when police are trying to obtain information and the suspect is
          unaware that he is talking to police.
          (1) D has right to counsel even when he does not know he is subject to police elicitation.
      e. Once D requests counsel at this point, police questioning must stop. – Edwards

       f. Massiah gives the right to a lawyer, but does not guarantee the right to a lawyer at every
          proceeding
          (1) Massiah right to counsel only during interrogation after formal charges filed
          (2) Often, formal charges not brought during arraignment or initial appearance, so
              Massiah right to counsel would not attach at arraignment
              (a) But, lawyer usually appointed at initial appearance, so typically there is no right to
                  a lawyer during that proceeding.
              (b) Lawyers have a way of manipulating this—police will file formal charges later.


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       (3) The issue is that sometimes Miranda applies.
           (a) If there is a custodial interrogation, Miranda applies.
           (b) Police get around this by interrogating BEFORE formal charges and NOT in a
               custodial setting.

   g. Massiah (1964) – FBI agents deliberately elicited statements from D when, after he was
      indicted and in the absence of his attorney, they secretly had his co-D get him to talk
      about their drug activities in tapped car (wire tap) during which D made incriminating
      statements. D was denied his 6th Amend. right to counsel.
      (1) Held: Suspect – post-indictment, has a lawyer. Once adversary proceedings have
          commenced against the individual, he has a right to legal representation when the
          govt interrogates him.
      (2) Constitutional right to a lawyer after an indictment  6th Amend. triggered

   h. Compare Miranda vs. Massiah
      (1) Miranda = right to counsel in custodial interrogation only
      (2) Massiah = right to counsel whether or not custodial interrogation
      (3) Massiah, not Miranda, applies when police are trying to obtain information and the
          suspect is unaware that he is talking to the police.

   i. Escobedo – After arrest there was right to attorney under 6th Amend.
      (1) Escobedo (1964) – Where investigation is no longer general inquiry into unsolved
          crime but begins to focus on particular suspect, who is in police custody and makes
          incriminating statements during interrogation, and who requested and was denied an
          attny, received no warning of his absolute constitutional right to remain silent, he has
          been denied assistance of counsel and self-incrimination rights violated, both in
          violation of 6th Amend. [narrow holding].

   j. Fruit of the Poisonous Tree Doctrine:
      (1) 4th Amendment: FPT doctrine DOES apply
      (2) 5th Amendment: FPT doctrine does NOT apply
      (3) 6th Amendment: FPT doctrine DOES apply
      (4) There is a large difference as to what can happen if there is a violation.
          (a) If 5th Amend. violation, police may be able to continue.
          (b) If 4th or 6th violation, police may be prevented from access to the evidence.

3. Brewer and Deliberate Elicitation
   a. Deliberate elicitation = Once D has the right to counsel under Massiah (after formal
      charges have been brought) police cannot question him anymore.
      (1) It does not require a request, police are simply barred from further questioning.

   b. D has a right to counsel once adversary proceedings have begun.
      (1) “Formal system” begins the rights in many different ways.
          (a) Once adversarial criminal proceedings HAVE begun—formal charge brought.
              i) It does not include being arrested without a warrant.
              ii) It does not include when the investigation begins to focus on an individual.

   c. Brewer (1977) – Young girl abducted from YMCA, police caught suspect who was


                                            63
      YMCA resident and recently escaped from mental hospital. After judicial proceedings
      had begun against D in one city, officers were transporting him to other city to face other
      charges and questioned him regarding whereabouts of victim’s body during which D
      made incriminating statements. Held: D was deprived of his 6th Amend. right to counsel.
      D did not waive this right to counsel during the car ride questioning.
      (1) Deliberate elicitation when, after officer was told by both D’s attorneys in both towns
          not to question him in their absence, in the car ride officer purposely sought during
          D’s isolation from his lawyers to obtain as much incriminating information from D as
          possible.
      (2) ** Note: First trial reversed, then he was tried again and convicted. At second trial,
          the conviction upheld – the body would have been inevitably discovered so it could
          be used against the D. (Nix)
      (3) Massiah treats interrogation as a right at a critical stage. Because there is a critical
          stage, Brewer reads Miranda as a critical right.

   d. 6th Amend. right to counsel violated when undisclosed, paid govt informant is placed in
      D’s cell, after D has been indicted, and deliberately elicits statements from D regarding
      crime for which D was indicted. Right to counsel had attached.
      (1) Does not matter that informant was told NOT to ask anything, but to keep his ears
          open. Police cannot passively try and get information once the right to counsel
          attaches. – Henry (1980)
   e. NO violation merely to place informant in D’s cell
      (1) Informant must take some action, beyond mere listening, designed deliberately to
          elicit incriminating remarks. – Kuhlmann (1986)

   f. Violation when police arrange to record conversations between indicted D and his co-
      D. – Maine v. Moulton (1985)

   g. Govt gets nothing if they deliberately elicit confession
      (1) If they get confession, they may not be able to use it, but they may get other
          information from the confession.
      (2) If they do not get confession, nothing will happen.
      (3) If they get confession, cell mate may not qualify as deliberate elicitation.

4. Waiver under Massiah
   a. After requesting COUNSEL, the only way to waive that right is when:
      (1) Counsel is present OR
      (2) D initiates the conversation (related conversation)

   b. Police CANNOT ask him anymore questions without the presence of a lawyer,
      unless he himself initiates further communication w/ police.
      (1) Edwards rule applicable to D who requests counsel after being formally charged w/ a
          crime. – Michigan v. Jackson
      (2) Once the right to counsel has attached and been invoked, any subsequent waiver
          during a police-initiated custodial interview is ineffective.
      (3) 6th Amend. right to counsel at a post-arraignment interrogation requires at least as
          much protection as the 5th Amend. right to counsel at any custodial interrogation.



                                            64
       (4) Michigan v. Jackson (1986) – D made an appearance at the arraignment (two
          different meanings, one is after indictment, for pleas, the other use is for the initial
          appearance, right after D was arrested, he/she is brought before the judge for an
          administrative hearing), the appearance is what happened in this case. D was
          arrested, questioned, then brought to the judge. In the questioning, he made SIX
          statements. At the hearing/arraignment, he now asked for the lawyer. Before he got
          the lawyer, however, he gave the SEVENTH confession. Before every statement, he
          was given the Miranda rights.
          (a) Held: First six statements admissible, assuming no DPC violations, no coercion,
              with Miranda rights, he confessed, assuming there is a VALID waiver, under the
              FIFTH amendment, this interrogation was okay. If there were no formal charges
              at the time of the interrogation, then 6th amendment is not violated either.
          (b) Arrest---Interrogation---Arraignment (appearance) asked for lawyer----Seventh
              Confession  inadmissible.
              i) D had asked for a lawyer, which confers the right to counsel upon him under
                   6th. Thus D not allowed to be questioned unless HE initiates it, or a lawyer is
                   present.
          (c) In this case, Massiah right to counsel did not attach b/c it was only an initial
              appearance (arraignment), which is not a formal charge, and Massiah only applies
              to former charges (esp. indictment).
          (d) Once formal charges have been made, you have a RIGHT to counsel, even
              without requesting that right.
              i) Patterson case (p. 707n.6) suggests that Jackson was different b/c there were
                   no formal charges, so he had no right to counsel, however, he ASKED for a
                   lawyer, so that is sufficient to stop future interrogation based on Edwards.
              ii) However, in Patterson, after an indictment, you do not HAVE to request the
                   counsel bc formal charges have been made, and therefore, you are ENTITLED
                   to an attorney, even without asking for counsel.

5. Right to Counsel and Criminal Proceedings:
   a. Warrant—Probable cause determined
   b. Arrested
   c. * Complaint
      (1) Some jurisdictions consider this to be a formal charges bc there are charges filed.
      (2) IF THERE IS A FINDING, THIS IS DEFINITELY WHERE FORMAL CHARGES
          TAKE PLACE, for SOME jurisdictions.
   d. Initial appearance OR Arraignment
      (1) W/o undue delay
      (2) They deal with administrative issues
      (3) Tell the D his rights
      (4) Ask D questions regarding medication, etc.
   e. Gerstein Hearing
      (1) probable cause hearing is usually combined with the probable cause hearing
      (2) Must be held within forty eight hours of arrest.
      (3) This only applies if D is held in custody.
      (4) If D is taken to jail and is let go, this hearing is not necessary
   f. * Preliminary Hearing
      (1) IF THERE IS A FINDING, THIS IS DEFINITELY WHERE FORMAL CHARGES


                                           65
          TAKE PLACE.
      (2) Ten to thirty days after arrest
      (3) Probable cause hearing
   g. * Grand Jury Proceeding
      (1) IF THERE IS A FINDING, THIS IS DEFINITELY ALSO WHERE FORMAL
          CHARGES TAKE PLACE.
      (2) If they have determined that there is actual charges
      (3) ANOTHER arraignment
          (a) This is when the pleas happen
          (b) If there is a guilty plea, then they go to TRIAL

6. Massiah vs. Miranda
   a. Massiah, not Miranda, applies when police are trying to obtain information and the
      suspect is unaware that he is talking to the police.
   b. Miranda = right to counsel in custodial interrogation only
   c. Massiah = right to counsel whether or not custodial interrogation

   d. OFFENSE SPECIFIC (6th Amend. right to counsel)
      (1) 5th Amend. right to counsel (Miranda) – NOT offense specific
          (a) after right invoked, 5th Amend. prevents all questioning
          (b) Miranda is MUCH broader, it cuts across ALL crimes, you are not allowed to
              refuse interrogation for any crime.
              i) Because 6th amendment is so narrow, 5th is much stronger.
              ii) Attny should tell D to suggest that they want a lawyer for EVERY charge.
      (2) 6th Amend. right to counsel (Massiah) is offense specific
          (a) If D makes 6th Amend. request for counsel for one charge, he must make another
              request if he is subsequently charged w/ separate, unrelated crime if he desires
              counsel for second charge.
          (b) Even though D’s 6th Amend. right to counsel has attached regarding one charge,
              he may be questioned w/o counsel concerning an unrelated charge.
              i) Illinois v. Perkins (1990) – D in jail on batter charge. B/c police suspected D
                  of unrelated murder, they placed undercover officer in D’s cell. Officer
                  elicited damaging confessions from D re: murder. The interrogation did not
                  violate 6th since D had not been charged w/ the murder, and it did not violate
                  D’s 5th Amend. right to counsel under Miranda.

       (3) Test for different offenses – Blockburger
           (a) Two crimes considered different offenses if each requires proof of an additional
               element that the crime does not require (Cobb)
           (b) Two crimes are the same only when proving the elements of the greater will
               always prove the elements of the lesser.

   e. 6th Amend. right to counsel is offense specific – Cobb and McNeil
      (1) D’s invocation of 6th Amend. right to counsel during a judicial proceeding does
          not constitute an invocation of his Miranda right to counsel.– McNeil (1991)
      (2) only applies to the same particular offense; not an invocation of counsel for another
          offense
          (a) it cannot be invoked once for all future prosecutions b/c it does not attach until a


                                            66
       prosecution is commenced, at or after the initiation of adversarial judicial criminal
       proceedings, whether by way of formal charge, preliminary hearing, indictment,
       information or arraignment.
   (b) Jackson effect of invalidating subsequent waivers in police-initiated interviews is
       also offense-specific.

(3) Cobb (2001) – He was arrested for robbery in Omaha, Nebraska. He then was given
    his Miranda rights. In Milwaukee he requested a lawyer. Then he was given Miranda
    warnings again a second, third, and fourth times, and then he confessed and changed
    his story. After asking for the attorney, they were not supposed to interrogate him
    anymore. HOWEVER, the counsel was with the robbery charge, not the murder
    charge. Held: Confession admissible b/c 6th Amendment is crime specific. The right
    to counsel is chopped up PER crime. If the two crimes are not related, then you have
    to ask for counsel for BOTH event.
    (a) Murder and the burglary were very separate from the robbery, so in that case, the
        Sixth Amendment applied to the robbery, however, the confession regarding the
        murder was NOT protected bc he only invoked the right to counsel for the FIRST
        crime, not the second one.
    (b) Adopted double jeopardy clause of offense specificity for 6th Amend.
        Blockberger test for “same offense” in 6th Amend. context is same as in 5th
        Amend. double jeopardy clause. Double jeopardy: can’t be different trial for same
        offense; it not same offense – second trial okay; if same offense – second trial not
        okay.
    (c) Indictment automatically invokes 6th Amend. right to counsel.




                                     67
E. Review of Interrogations
   1. Due process – applies at all times, whether indictment or not
      a. Whether the confession is involuntary – totality of circumstances
      b. If confession flunks due process it is invalid for all purposes – fruit of the poisonous tree
          doctrine applies.
      c. McNabb-Mallory – confession inadmissible only if involuntary – delay is one factor
          (1) Congress overturned this rule
       th
   2. 4 Amend.
   3. 5th Amend.
      a. Miranda – risk of harm in custodial interrogation
          (1) 5th Amend. applies to testimonial communications; applies only to custodial
              interrogation – very narrow category
          (2) Custody = deprived of your freedom of movement in a significant way
              (a) objective test: would a reasonable person in D’s situation that he could not leave
                  in a significant way
          (3) Interrogation = questioning by law enforcement personnel; does not include voluntary
              statements, i.e. where D runs up to police and confesses
              (a) functional equivalent of interrogation = police conduct designed to get an
                  incriminating statement
          (4) D can waive Miranda warnings – but this is heavy burden
          (5) Waiver not permanent – can waive today and invoke tomorrow
       th
   4. 6 Amend.
      a. Escobedo, Massiah – confession may be inadmissible even if voluntary if it was in
          violation of 6th Amend. right to counsel
      b. 6th Amend. triggered by formal charges – arraignment or indictment
      c. D can waive 6th Amend. right to counsel
      d. Once D requests counsel and is entitled to it, questioning must stop until counsel is
          present or D re-initiates the discussion (Edwards)




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V. IDENTIFICATION

  A. Introduction
     1. State must prove that D is actually person who committed the crime.
     2. Usually this is done by bystander as witness – but many problems w/ witness identification
     3. Substantive Bases for Attack – grounds to have ID suppressed in court
        a. 6th Amend. right to counsel (Wade)
        b. 4th Amend.
        c. Due process
     4. Does not implicate 5th Amend.
        a. Lineup does not involve compulsion to give evidence “testimonial” in nature
        b. So D has no basis in 5th Amend. privilege against compelled self-incrimination to refuse
            to participate in one. – Wade
        c. Also, D has no right to lineup
            (1) D not entitled to any particular kind of ID procedure and may not demand a lineup
     5. Purpose of ID rules:
        a. Ensure that when witness identifies person at trial, she is identifying the person who
            committed the crime and not merely the person whom she has previously seen at the
            police station.

  B. 6th Amend. Right to Counsel in Identifications
     1. D has right to presence of attny at any post-charge lineup or showup. – Wade
         a. Lineup = witness is asked to pick perpetrator of crime from group of persons
         b. Showup = one-to-one confrontation between W and D for purpose of ID
         c. Lineup is a critical stage and D entitled to counsel at that time.
         d. If D’s rights at line up were compromised, it may mean that the ID was tainted as well.
         e. Right attaches only after formal charges brought against D.

     2. Role of Counsel at Lineup
        a. Right is simply to have attny present during lineup so that attny can observe any
           suggestive aspects of the lineup and bring them out on cross-exam of W.
        b. No right to have attny help set up the lineup or demand changes in way it’s conducted etc.

     3. D does NOT have 6th Amend. right to counsel at photo identifications. – Ash
        a. But, D may have due process claim regarding photo ID

     4. D does NOT have right to counsel when police take physical evidence from her
        a. E.g. handwriting sample or fingerprints, other scientific tests

     5. Waiver – D may intelligently and voluntarily waive his right to counsel at lineup. – Wade

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       a. D must know of the right to counsel – must make positive waiver of this right
       b. Burden on govt to prove waiver
       c. Both D and his counsel should be notified of the impending line up, counsel’s presence is
          required prior to conduct of line up, absent an intelligent waiver

   6. Wade (1967) – D indicted for robbery, appointed counsel, then line up after indictment but
      prior to trial where he was IDed, then in court ID. D trying to suppress the import ID, not the
      initial ID prior to trial. Held: D had a right to a lawyer at this post-indictment line up.
      a. After formal charges applied, the line up is a critical stage and D is entitled to counsel at
           that time. If D’s rights at line up were compromised, it may mean that the import ID was
           tainted as well. Intelligent Waiver – D may waive his right to counsel at the line up.

   7. Pre-trial ID and In-trial ID (Wade)
      a. Per se rule = if right to counsel was violated in pre-trial ID, that ID cannot be brought up
         at trial
      b. Defect in earlier pre-trial ID tainted the in-trial ID and made the ID inadmissible
      c. In-court ID may also be excluded – totality of circumstances approach

C. Due Process Standard
   1. D can attack ID as denying due process when
      a. ID is unnecessarily suggestive and
      b. there is a substantial likelihood of irreparable misidentification. – Stovall
   2. Both parts must be met for D to win.
      a. General rule = preponderance of the evidence
      b. Difficult standard to meet.
      c. ID must be shown to have been extremely suggestive.
      d. A fundamentally unfair procedure, e.g. when D is known to be black and suspect is only
         black person in lineup, would violate due process standard.

   3. Showup at hospital did not D due process when procedure was necessary due to need of an
      immediate ID, the inability of the identifying victim to come to police station, and possibility
      that victim might die.
      a. Stovall (1967) – It was okay to bring D to hospital room for V to ID him b/c showing D
          to the V in an immediate hospital confrontation was imperative – it was unknown how
          long V would live; she had responsibility to ID her attacker, there was need for immediate
          action and V could not visit the jail b/c of her post-surgery condition, the only feasible
          procedure was for police to take D to hospital for ID.
          (1) Wade-Gilbert rule only applied prospectively, to ID procedures conducted after the
              date of those decisions.
          (2) For line ups after formal charges, due process and 6th Amend. right to counsel apply.
      b. Post-Stovall decisions
          (1) even if pre-trial ID was faulty, in-trial ID was okay b/c D had plenty of opportunities
              to observe it

   4. No substantial likelihood of misidentification was found in the showing of a single
      photograph to a police officer 2 days after crime.
      a. Manson v. Brathwaite (1977) – Wade does not apply to photo display, and it was
         before any formal proceedings were brought. D’s due process challenge also failed.


                                               70
           After applying Biggers factors below, Court found ID was made in circumstances
           allowing care and reflection. Glover’s ability to make an accurate ID are not outweighed
           by the corrupting effect of the challenged ID itself.

   5. Focus on reliability of the identification testimony when determining the ID’s admissibility.
      Other factors are to be considered: (Biggers, Manson)
      a. opportunity of witness to view criminal at the time of the crime
      b. Ws’ degree of attention
      c. accuracy of W’s prior description of the criminal
      d. W’s level of certainty demonstrated at the confrontation
      e. time between the crime and the confrontation
      f. weigh these factors against corrupting effect of the suggestive identification itself
      g. pre-trial ID – likelihood of misidentification; in-court ID – risk of irreparable
         misidentification

   6. Photo ID w/ only 6 photos did not violate DP
      a. procedure was necessary b/c perpetrators of serious felony (robbery) were at large, and
         police had to determine if they were on the right track, and Court found little danger of
         misidentification. – Simmons (1968)

D. Remedy for Unconstitutional ID
   1. Remedy is exclusion of in-court ID
      a. Unless it has independent source
      b. This is severe remedy that is rarely granted.

   2. Independent Source
      a. Witness may make an in-court ID despite the existence of an unconstitutional pretrial ID
         if the in-court ID has an independent source.
      b. Factors court will weigh in determining an I.S.:
         (1) opportunity to observe D at time of crime
         (2) ease w/ which the witness can identify the D
         (3) existence or absence of prior misidentifications

       c. Wade–Gilbert Rule
          (1) State is not entitled to an opportunity to show that that testimony had an independent
              source. Only a per se exclusionary rule as to such testimony can be an effective
              sanction to assure that law enforcement authorities will respect the accused’s
              constitutional right to the presence of his counsel at the critical lineup.

   3. Admissibility of ID evidence should be determined at suppression hearing in absence of
      jury, but exclusion of jury is not constitutionally required.

   4. Burden of proof
      a. Due Process violation
         (1) burden on D to show the risk of irreparable misidentification

       b. 6th Amend.–Wade violation
          (1) Burden on govt:


                                               71
                 (a) presence of counsel
                 (b) waiver by D
                 (c) independent source for in-court ID
             (2) Clear and convincing proof (heavy burden)
             (3) If violated, govt may not buttress a later courtroom ID of the witness by any reference
                 to the previous ID.
             (4) The courtroom ID is not admissible at all unless govt can establish by clear and
                 convincing proof that the testimony is not the fruit of the earlier ID made in the
                 absence of D’s counsel.
VI.   RIGHT TO COUNSEL

  A. Intro.
     1. D has right to counsel under 5th and 6th Amend.
        a. 5th Amend. right applies at all custodial interrogations. (Miranda)
        b. 6th Amend. right applies at all critical stages of a prosecution after formal proceedings
            have begun. (Massiah)
        c. D has right to be represented by privately retained counsel or to have counsel appointed
            for him by the state if he is indigent.

      2. Stages where right to counsel applicable:
         a. Custodial police interrogation (Miranda)
         b. Post-indictment interrogation whether custodial or not (Massiah)
         c. Preliminary hearings to determine probable cause to prosecute (Coleman v. Ala.)
         d. Arraignment (Hamilton v. Ala.)
         e. Post-charge lineups (Moore v. Illinois)
         f. Guilty plea sentencing (Mempa)
         g. Felony trials (Gideon v. Wainwright)
         h. Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence
            is imposed (Scott v. Illinois, Ala. v. Shelton)
         i. Overnight recesses during trial (Geders)
         j. Appeals as a matter or right (Douglas)
         k. Appeals of guilty pleas and pleas of nolo contendere (Halbert)

      3. Stages where right to counsel NOT applicable:
         a. Blood sampling (Schmerber)
         b. Taking of handwriting or voice exemplars (Gilbert)
         c. Pre-charge or investigative lineups (Kirby)
         d. Photo Ids (Ash)
         e. Preliminary hearings to determine PC to detain (Gerstein)
         f. Brief recess during D’s testimony at trial (Leeke)
         g. Discretionary appeals (Moffitt)
         h. Parole and probation revocation proceedings (Gagnon v. Scarpelli)
         i. Post-conviction proceedings (e.g. habeas corpus), including petitions by death-row
            inmates (Finley and Giarratano)

  B. Gideon v. Wainwright (1963)
     1. Pre-Gideon
        a. Powell – In capital case, where D is unable to employ counsel, and is incapable


                                                  72
       adequately of making his own defense b/c of ignorance, feeble-mindedness, illiteracy or
       the like, it is the duty of the court, whether requested or not, to assign counsel for him as a
       necessary requisite of due process of law. (Due process, not 6th Amend. case b/c 6th
       Amend. not yet applicable to states.)
   b. Betts (1942) – There was a due process right to appointed counsel at state expense only
       when the failure to appoint counsel would be offensive to the common fundamental ideas
       of fairness. Required case by case determination. (Due process, not 6th Amend. case b/c
       6th Amend. not yet applicable to states.) No 6th Amend. right to counsel in the states, but
       in some circumstances, due process may require it. Overruled by Gideon.
2. 6th Amend.’s guarantee of counsel is a fundamental right that is essential to a fair trial.
   a. All criminal defendants entitled to counsel
   b. States must provide appointed counsel to those defendants who cannot afford an attorney
       unless the right is competently and intelligently waived.
   c. In our adversary system of criminal justice, any person haled into court who is too poor to
       hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.
   d. Gideon sets minimal constitutional rule  6th Amend. right to counsel in felony cases

3. Gideon and 6th Amend. right to counsel applies felony cases and misdemeanors where
   imprisonment or jail is imposed.
      (1) Argersinger (1972) – Gideon also applies to misdemeanors in addition to felony
          cases, but only misdemeanor case when imprisonment or jail is imposed only; if no
          jail term imposed, there is no 6th Amend. right to counsel. Still, states (under state
          law) routinely provide counsel for defendants in misdemeanor charge regardless of
          the punishment imposed.

4. Waiver of 6th Amend. right to counsel
   a. Must be knowing, intelligent, and voluntary
   b. Must be positive indication of the waiver
   c. Waiver must be on the record

5. Misc. Gideon
   a. Importance of lawyers in a criminal proceeding – are essential to protect the public’s
      interest in an orderly society; lawyers are essential to a fair trial
   b. Applied 6th Amend. to the states.
   c. Leaves open many questions about right to counsel.

6. Remedy for Violation
   a. If D was entitled to lawyer at trail, failure to provide counsel results in automatic reversal
      of the conviction, even without any showing of specific unfairness in proceedings.
   b. Erroneous disqualification of privately retained counsel results in automatic reversal. –
      Gonzalez-Lopez (2006)
   c. But, at nontrial proceedings (e.g. post-indictment lineup), harmless error rule applies to
      deprivation of counsel. – Wade

7. If D is in jail and in violation of probation, he is entitled to counsel. – Shelton
   a. Courts cannot impose suspended sentences on indigent defendants without providing
       counsel at trial or finding waiver.



                                             73
C. Self-Representation
   1. D has absolute right to represent himself at trial as long as his waiver of the right to
       counsel is knowing and intelligent. – Faretta
       a. 6th Amend. implies a right of self-representation.
       b. State may not force a lawyer upon D when he waives his right to counsel and insists upon
          conducting his own defense.
       c. Careful scrutiny of waiver to ensure that D has a rational and factual understanding of
          the proceeding against him.
          (1) D must choose self-representation competently and intelligently.
          (2) D’s technical legal knowledge is not relevant to the determination whether he is
              competent to waive his right to counsel.

   2. D need not be found capable of representing himself – D’s ability to represent himself has
      no bearing on his competence to choose self-representation. – Faretta
      a. Although D may conduct his own defense ultimately to his own detriment, his choice
          must be honored.

   3. Backup attorney may be appointed and may intervene to limited extent – Wiggins
      a. As long as impression of self-representation is not destroyed.
      b. 2-part standard:
         (1) Pro se D entitled to preserve actual control over the case he chooses to present to jury
         (2) Participation by standby counsel without the D’s consent should not be allowed to
             destroy the jury’s perception that the D is representing himself.

   4. D has no right to self-representation on appeal. – Martinez (2000)

   5. Faretta (1975) – D chose to represent himself in state criminal trial for grand theft charges.
      State denied him this right and forced attny on him. D had represented himself before; had
      high school education. Initially let him represent himself, but at hearing to determine D’s
      ability to conduct his own defense where judge asked D about hearsay rule and state law re:
      jury selection (D appeared to not have much knowledge about the law), judge found D did
      not make intelligent and knowing waiver and appointed him an attny.
      a. D in a state criminal trial has a constitutional right to proceed without counsel when he
          voluntarily and intelligently elects to do so. State may not force a lawyer upon D when he
          waives his right to counsel and insists upon conducting his own defense. 6th Amend.
          implies a right of self-representation. D choosing self-representation must do so
          competently and intelligently.
      b. D has right to a lawyer and a right to represent himself, but not a right to both – you can’t
          have an attorney that helps you with your defense (e.g. D and attorney are co-counsels)

   6. Wiggins (1984) – Role of standby counsel–2 part standard. Here, Faretta right of self-
      representation not violated when standby counsel intervened w/o D’s permission over 50
      times while D was representing himself – standby counsel’s conduct did not prevent D from
      conducting his own defense.

D. Capacity to Waive Counsel
   1. Mental Incompetence
      a. Level of mental competence to waive counsel is the same as to stand trial – Godinez v.


                                               74
          Moran (1993)
       b. Test for competence to stand trial – whether D has:
          (1) sufficient present ability to consult w/ his lawyer w/ reasonable degree of rational
              understanding
          (2) rational and factual understanding of the proceedings against him
       c. Same test for D’s capacity to waive counsel
          (1) If D is competent enough to stand trial, he is competent to waive a lawyer
          (2) as long as waiver is knowing and voluntary

E. Competence of Counsel
   1. 6th Amend. right to counsel includes right to effective counsel. – Strickland
      a. Effective assistance of counsel is presumed unless the adversarial process is so
          undermined by counsel’s conduct that the trial cannot be relied upon to have produced a
          just result.
          (1) presumption that judge and jury acted in accordance w/ the law
      b. Effective assistance of counsel also guaranteed on a first appeal as of right.
      c. Ineffective counsel is most commonly raised constitutional claim
      d. D seeking to reverse conviction and new trial.
      e. A criminal defense lawyer’s job is to protect a right to a fair trial.
      f. D must prove that counsel’s assistance was so defective as to require reversal of his
          conviction or death sentence.

   2. TEST for Ineffective Counsel
      a. D must show: (Strickland)
         (1) Deficient performance by counsel, and that
         (2) The deficient performance prejudiced his defense.

       b. Deficient performance
          (1) Counsel made errors so serious that he was not functioning as the “counsel”
              guaranteed D by 6th Amend.
       c. Prejudice
          (1) Counsel’s errors so serious as to deprive D of a fair trial – trial w/ reliable result.
          (2) Counsel’s conduct so undermined the proper functioning of the adversarial process
              that the trial cannot be relied on as having produced a just result.
          (3) But for the deficiency, the result of the proceeding would have been different
              (a) e.g. D would not have been convicted or his sentence would have been shorter.
          (4) Presumption of prejudice if D shows that counsel actively represented conflicting
              interests and that an actual conflict of interest adversely affected counsel’s
              performance.

       d. Objective Standard
          (1) Reasonableness of counsel’s conduct under prevailing professional norms
          (2) Typically can only be shown by specifying particular errors of counsel

       e. Appellate court standard for reversal of trial court’s conviction.

   3. Circumstances not constituting ineffective assistance
      a. Cannot be based on mere inexperience, lack of time to prepare, gravity of charges,


                                                75
      complexity of defenses, or accessibility of witnesses to counsel.
   b. Acts or omissions by counsel that court views as trial tactics
      (1) Ex: No ineffective assistance in capital murder trial to fail to obtain client’s
          affirmative consent to strategy of going to trial and not challenging guilt (rather than
          pleading guilty) in hope of having more credibility at sentencing.
      (2) Ex: No ineffective assistance when appointed counsel refused to argue nonfrivolous
          issues that attny had decided, in exercise of her judgment, not to present.
      (3) Ex: No ineffective assistance when attny failed to present mitigating evidence or
          make closing argument at capital sentencing proceeding when counsel asserted that
          mitigating evidence had just been presented at trial, D’s mother and other character
          witnesses would not have been effective and might have revealed harmful info, and
          closing argument would have allowed rebuttal by ver persuasive prosecutor.

4. Strickland (1984) – Attny appointed for D at murder trial. Attny actively pursued pretrial
   motions and discovery. Cut these efforts short when he began to feel hopeless when finding
   out that D confessed to the murders. At sentencing, attny did not put on any character
   witnesses nor request psychiatric exam b/c conversations w/ client gave no indication he had
   psychological problems. Excluded from this hearing potentially damaging evidence,
   including D’s rap sheet. D sentenced to death.
   a. No ineffective counsel. Trial counsel’s defense, though unsuccessful, was the result of
       reasonable professional judgment. D’s ineffective counsel claim fails.




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