4th amendment protects us from unreasonable search and seizure. The first step is to see if is a search. If it is not a search, then we can use it for probable cause. What is a search? Katz gave us a new definition. 1. The person has exhibited a subjective expectation of privacy. 2. Society believes the expectation is reasonable. What if a dog sniffed outside your bag and discovered that you have drugs? Do you have an expectation of privacy? Yes as to the contents but no as to the air outside your bag. In order to open the bag what do we need? Usually we need a warrant and we get that with probable cause. If you run through a Katz analysis and you fail, then it is not considered a search. If it is not a search then it is useable to determine probable cause. When we have an expectation of privacy we are talking about privacy from the world, not just law enforcement. If the enhancement device is characterized as a common device used in a common way it will not be considered a factor. Common if we all know they are out there. If we consider the device used uncommon, or used in an uncommon way then it is necessarily a search. A search without a search warrant is per say unreasonable, unless it fits in one of the recognized exceptions. How do we determine if the device is common? Scalia makes the determination that the house is special. In doing a Katz analysis we must now use the residence as a factor. 1. Is it a search? Katz analysis 2. If not search then the conduct is useable in forming probable cause. 3. If it is a search then we have to determine if it is reasonable and basically if there is no search warrant then the default is unreasonable and unuseable. Oliver is a case we need to know by name. Conduct that occurs on an open field is never protected. Automatically no expectation of privacy. Oliver rule does not apply to curtilage. Curtilage is where the white picket fence should be. Common use areas for the house. For curtilage we go through a common Katz analysis. What if person growing pot right outside his front house with a 8 foot wall around his whole house? Cop looks over the wall and sees the pot plant. Probably not a search
because just looking over is not violation of privacy. People can see over the wall if they live next door and have a 2 story house. What if cop jumps fence and looks through tomato plants and sees pot plant? If we are in the curtilage then there is a greater likelihood that it will be considered a search. If we are outside the curtilage looking in, then it is less likely that it is a search. Greenwood says that garbage placed on the curb is not protected by reasonable expectation of privacy. We are going to break any citizen/cop encounter into 2 parts. 1) Seizure (use 4th amendment) 2) Unprotected encounter (no 4th amendment) Mindenhall Case: defines what is a seizure for 4 th Am purposes Police offer zeroes in on Ms. Mindenhall because she fits the profile of a drug courier. They ask her if she would come with them to DEA office. A person is seized if, in view of the circumstances surrounding the incident, a reasonable (innocent) person would have believed he was not free to leave. Factors: Threatening presence of more than one officer. Display of weapon. Some manner of physical contact. Use of language or tone that indicate that compliance might be compelled. Seizure is just like search in the analysis of if info can be used. Seizure is only reasonable when there is an arrest warrant or one of the recognized exceptions. 1/14/04 Detention has not occurred unless the circumstances of the encounter are so intimidating that a reasonable person would not feel free to leave if he had not responded. We don’t want unlimited police officer discretion. We want some rules to govern them. Coming across the border there are no 4 th amendment rights, they can cavity search you if you want. At the checkpoint in San Clemente we give a right to do a secondary search based on reasonable suspicion. This is based on the border rules, even though this is not a real border. Add “intimidating” to the list of factors for seizure. Hodari – High crime area of Oakland.
Police see a bunch of kids and yell “stop, police”, they start running. Police gets out and one of the guys run around the corner and throws out a rock of cocaine. Seizure is illegal if done without probable cause. Scalia says in a flight scenario we need to have compliance or physical force in order to have a seizure. Hodari has given us a flight exception to the Mindenhal factors. Brown v. Texas Man in an alley late at night and cop asks him what he is doing. Man ignores him and is then arrested for ignoring. 2 types of seizure, Detention and Arrest. First, is it a seizure. If no, then all info is useable. If yes then what kind is it? For detention we need reasonable suspicion (particularized and objective basis for suspecting the person stopped of criminal activity, criminal activity may be afoot). For arrest we need probable cause. Ornelas v. U.S. Factors Men have drug history From California, in Milwakee Pulled in to motel at 4am Car (oldsmobile) is known to have area to hide drugs Once we have reasonable suspicion we can detain. Terry v. Ohio First question when we get into a seizure analysis, do we have a seizure? In this case obviously a seizure because the cop went over and touched Terry and put him up against the wall. Next question, was it a detention or an arrest? For a detention we need reasonable suspicion. If the cop goes beyond a brief detention and goes beyond what Terry allows then it goes from a detention to an arrest. Terry gave us the new step of a Terry Stop, based on something less than probable cause we can have a brief stop. Just based on reasonable suspicion we are now going to allow officers to detain for a safe, brief furthering of the investigation. Once that furthering of the investigation has taken place then the police must either break it off or continue and it becomes an arrest.
The police officer is not allowed to touch the detainee. If the police officer has a reasonable suspicion that this guy is armed and dangerous then he can frisk the detainee. We must go through a separate analysis for a Terry Frisk, but we can basically use the same factors that led to the reasonable suspicion. What if the guy is suspected of dealing in drugs, can you frisk? Again, only if there is reasonable suspicion that the guy is armed, the typical rule is that guns don’t necessarily follow drugs, you usually need more to justify a frisk. Minnesota v. Dickerson The cop can only use the Terry Frisk rule to determine if the guy has a weapon. When he touches something in the pocket and determines that it is not a weapon, he can not touch it further. Now from a brief touch can a cop have probable cause that the item is drugs? Theoretically he can, but that is a tough argument to make. If you are operating without a search warrant the burden is on the prosecution to go forward and prove it is ok, if there is a search warrant then the burden is on the defense to prove that it is not ok. Adams v. Williams Snitch tells police that the guy in a nearby car has a gun and has drugs. The police goes up to the car knocks on the window, and the guy rolls down the window. The police reaches in the car and pulls out a loaded revolver from where the snitch says it will be. Police arrests the guy for unlawfully carrying a weapon and then searches the car and finds heroin. Do we have reasonable suspicion to make the stop in the first place? Depends on how reliable the snitch is. 60% reliability is usually a pretty good snitch. Michigan v. Long Guy was weaving and swerving off the road, police followed him and he pulls off the road voluntarily. He opens the door of the car and walks towards the police car. The police meet him halfway and talk to him for a moment. Before they tell him he can leave, he turns around and walks towards the car. The police follow him back to the car and shine a flashlight on the drivers area, they see a hunting knife on the floor. They then stop Long and do a Terry frisk of him. They detain him because there is reasonable suspicion based on the hunting knife, the swerving and his turning and walking away. Then they “frisk the car” and find a baggie full of pot. The courts say they can do a frisk (a least intrusive search) of the areas in the car that would be immediately accessible to the driver. This is because the driver, when getting back in, may be able to immediately get a weapon and turn it against the cop. The marijuana was admissible because the cop did not do anything unreasonable in finding it. If there is a soft bag, we may only allow the cop to feel the outside of the bag if that would allow him to feel a hard object inside.
Florida v. J.L. Cop gets an anonymous tip that a young black man wearing a plaid shirt standing at a bus stop and the guy has a gun. They go up to the guy and frisk him and find the gun. Was he seized? Go through the Mindinhal test and obviously this guy was seized, he is under government control. Was there reasonable suspicion? They said no. Just facts or descriptions that the tipster gave does not lead us to any belief that criminal activity was afoot. Illinois v. Wardlow Guy standing in a high crime area holding a bag. Cops drive by and the guys starts running. They chase him and pat down his bag, they find a gun. Is there reasonable suspicion to stop him and pat him down. Very thin, but they guy was in a high crime area holding a bag and ran at the sight of cops. What about the pat down for weapons? Very thin also, they just say there was reasonable suspicion that the guy was armed and dangerous. For reasonable suspicion we simply ask, in hind sight, taking into account all the factors, is this the kind of situation where we want our police officers to briefly and safely further the investigation. It is not asking, “was there a better way to do it?”, instead we ask, “In hind sight, was this reasonable under the circumstances.” Proximity to a place that is about to be searched pursuant to a search warrant will usually be enough for reasonable suspicion. Michigan v. Sitz Stopping all cars for brief exam of drunk driving. Stopping all cars is important because we are trying to take away the police discretion, potential for discrimination. There is a detention of all the cars, very brief. There is no reasonable suspicion. But the court says it is ok. They just make a public policy argument and say that the stop is brief and the intrusion is minimal and drunk driving is a big problem. Edmond p.474 Stopping cars looking for narcotics. Public policy says the stop must be to protect the borders or related to the use of the road (drunk driving). New Case – Lister There was a hit and run at an intersection. The following week the cops set up a checkpoint at the same intersection to look for witnesses to the initial hit and run. They said it was related to highway safety. There is a huge public policy in favor of finding the guy that did the hit and run. The stop was very brief, and there was no limited cop discretion because they were stopping everyone. 1/28/04
You take the evidence and run it through a Katz analysis to determine if it is usable. Then you take all the useable evidence and determine what level of cause we have to do what kind of seizure. Do we have a seizure? Use Mindenhall + intimidation What type of seizure is it? Start with detention, was there reasonable suspicion that criminal activity was afoot. Did the cop stay within the allowed limits of Terry stop? If too long then it turns into an arrest and need PC for that. Is there reasonable suspicion that the guy is armed and dangerous? Drugs not enough, must be drugs +. Did the cop stay within the bounds of a Terry frisk, or did he go to far. PC is based on facts within the personal knowledge of the officer or affiant sufficient to convince a reasonably cautious person that an offense has been committed or is in the process of being committed by the accused. 3 huge parts Personal Knowledge Reasonably cautious person Offense has been committed or in the process of being committed (in the process is fairly expansive) The standard seems to be a preponderance of the evidence, more likely than not. Once there is PC and a full blown custodial arrest is made, the suspect loses all 4 th amendment rights. Case names need to know: Katz Terry Oliver Mindenhall Hodari Draper v. U.S. Snitch inform cop of drug activity. The cop said the snitch was reliable, but is that enough? We want the underlying facts that make the snitch reliable. Prior to Gates we had this 2 part test (Aguinar Spinelli): Anytime we have information from a 3rd party we run it through a 2 part test. 1. Is this person reliable (we want underlying facts that lead to conclusion that the guy is reliable). 2. Did this person have first hand info (sometime we can infer that there is first hand knowledge if the details are very specific). If we meet both prongs of the test, then we are probably good to go.
Gates blew out the Aquinar Spinelli test. Ill v. Gates PC is a function of a totality of circumstances. 2/2/04 If you are DA and you think you meet the Spinelli test, then try to argue that first because it is a higher threshold. PC to arrest HILL, go to HILL’s Apartment and Miller opens the door and he looks like Hill. We arrest Miller and search the premesis incident to arrest. The police can search the area in lunging area or the area incident to the arrest. Is the evidence that is found useable. The bottom line is, was it reasonable, under the circumstances, for the police to do what they did. Probably it was reasonable in this case. If there is a city ordinance that says cops can stop and ask anyone for ID, and if they do not comply then he can arrest, and then a cop asks a dude for ID, the dude ignores him and the cop arrests the guy and searches him and finds contraband. Is that stuff useable. Lets say the ordinance is found to be unconstitutional, the question is, was it reasonable for the cop to do that. The answer is probably yes because the police could reasonably believe that he could do it. A peace officer is permitted to arrest in a public place for a misdemeanor or felony committed in his presence as well as for a felony committed outside his presence, if there is probable cause for making the arrest, notwithstanding an adequate opportunity to procure a warrant. An infraction – If there is no potential for any custody when you look at the original offense then it is an infraction. Misdemeanor – There is a potential for custody but it can not exceed 365 days. Felony – There is potential for custody greater than one year. Wobbler is when there is an offense that could go either way like possession of marijuana (if small amount then infraction, if more then misdemeanor or felony). There is an exception for drunk driving because it is a misdemeanor, but if you crash into another car and then the cops show up later, they did not see you drive drunk so they should not be able to arrest you. But, there is an exception for drunk driving.
In felonies there are two ways the cases get into the system. Either preliminary hearing or grand jury. In prelim, the prosecutor has to put on a little mini case to show that there was likely a crime committed and that the defendant was likely the person who
committed it. In the grand jury the defense is never present, but is it more of a big commotion. Typically they use the grand jury in more sensitive cases. If a person is taken in custody on felony, they have an absolute right to a preliminary hearing within 10 days to determine if there is probably cause. In a misdemeanor you do not have the right to a prelim, but you do have a right to a probable cause hearing. Typically they do it right there, and the judge will read the police report. If the officer did not sign the police report under oath, then the judge can not take it into consideration and typically because there are no witnesses there the guy gets out. He does not get off Scott free, he is just released from custody pending the trial. KNOCK AND NOTICE Why? Less potential for violence with knock and notice. Knock and say “Police, I have a warrant.” And then give a reasonable period of time to allow the person to comply or not. If there is non-compliance with the knock and notice ask, was there a reason to notcomply? Compliance could lead to officer peril Purpose of arrest would be frustrated by compliance (not immunity, but effects the reasonable time) JUST MAKE THE ARGUMENT and use a totality approach If a person is trying to flee the police and they go from a pubic to a private place, the police need not comply with knock and notice. Is an arrest warrant sufficient to get us inside a house? The 4 th amendment rule is that we need a search warrant founded on probable cause to go into a house. The first exception is called the Payton rule – If we have an arrest warrant and we have probable cause (reasonable belief?) to believe the suspect is in his own home at the time, then the police can enter. Based on this the police can only search to find the suspect, once he has been found then no more search, just lunging area. 2/4/04 Add Payton to the list of cases we need to know by name. Did the police need to knock the second time? They knocked, no answer, then waited 30 min and then they knocked again. The knock and notice is to give the suspect an opportunity to surrender, prevent unnecessary property damage, lower chance of violence. Absent exigent circumstances, officers may never enter a home to arrest unless they have first obtained a warrant. Minnesota v. Olson
Can the cops enter another person’s home to arrest someone on an arrest warrant. No. They can not invade the other person’s home without a search warrant. Exigency can be a legitimate exception to the warrant rule.
REVIEW Begin Ask if there was a search. This will determine if the info is useable. If it is not a search then no problem, if it is a search, then we need to subject it to a 4 th amendment analysis (search warrant or recognized exception). Also look at enhancement devices, common is not just that people know about it but a bit more (Scalia in Kylo said that the heat sensor of the house was not a common device). Then ask if there was a seizure (would a reasonable person be so intimidated that he would not feel free to turn and walk away), courts are reluctant to find a seizure. Then ask what type of seizure, usually start with detention. During detention the police can make a brief furthering of the investigation. Police need reasonable suspicion to make a detention (particularized facts to believe criminal activity is afoot.). Also, we want the police to be safe so they can simply frisk to look for weapons if they have reasonable suspicion that the guy is armed and dangerous. If the brief furthering goes on too long then it turns into an arrest. If we did not have probable cause then the arrest is illegal and anything that comes from it is not useable. Add Robinson to the list of cases by name. Custodial Arrest Rule. Subsequent to a custodial arrest, a cop can do a full search (whatever he wants) of the entire person and anything associated with him. Anything found is useable. Goals: Prevent destruction of evidence Safety of cops Bright Line Test 2/9/04 Can the police officer in a non-custodial arrest situation, have the suspect do something? Yes, we will be balance police officer safety with the intrusiveness. Police pulls over a guy for a traffic ticket, asks him to step out of the car. Then he sees a bulge in his pocket, does a Terry frisk. What if the suspect has a purse on, can you frisk the purse? Can feel it looking for a hard object. If the purse is hard, then probably can open it using Michigan v. Long as authority. Once there is a custodial arrest you lose all 4th amendments rights. The officer can monitor all activity of the arrestee.
Arrest warrant says we have probable cause to believe this guy committed a crime. Search warrant says we have probable cause to believe the fruits of the crime are in his home. Chimel 2 goals after arrest are to protect against weapons and prevent destruction of evidence. For these reasons we can search the person and the area within the lunging radius. Chadwick The police arrest two guys when loading a trunk into their trunk. They had probable cause to believe the trunk was full of dope. They then took the trunk to the station and opened it there. They said the search of the trunk at the station was not ok. This case added a contemporaneous component to Robinson. Can search area within the lunging radius as long as it is contemporaneous with the arrest. Lafayette says that at booking we can do anything we can do under Robinson. Cupp v. Murphy Exigent circumstances can sometimes allow for a search outside of Robinson and Chimel. In order for Robinson and Chimel to fully kick in their needs to be a custodial arrest first. The lunging radius thing starts from the initial cop involvement. If a cop asks a guy to get out of the car and then moves the guy away from the car, he can still search the car because at the beginning of the encounter the car was in the radius. This applies if the cop acts reasonably. 2/11/04 Belton, not in book, cop asks guys to get out of car and then goes back in to search the car. We learn in a search incident to arrest the area is determined from the initial place where the cop decides to make the custodial arrest as long as it is reasonably contemporaneous. We also learn that we can open anything and search anything because of the bright lined rule that basically says there is no 4 th amendment protection in the immediate lunging area after arrest. Lafayette says that incident to booking we can do a full search. We presume that a search is reasonable if it is in conjunction with a pre-approved administrative procedure. Lafayette booking inventory bright line rule. Robinson-Chimel search incident to custodial arrest bright line rule. Oliver open fields, no expectation of privacy bright line rule.
Purpose of search warrant is to get pre-approval from the neutral detached magistrate. If there is a search warrant then the defense has the burden of going forward, there is a presumption that it is reasonable.
If there is no search warrant then the prosecution must go forward because there is a presumption that the search is unreasonable. Probable cause for a search warrant – substantial probability that certain items are the fruits, instrumentalities, or evidence of crime, and these items are presently to be found at a certain place. How particular must a search warrant be? Is it enough to say we are looking for stolen property? Or looking for narcotics and narcotics paraphernalia? When the thing we are looking for is per se contraband, the court will be more general in its descriptions. What if in the description we make a typo on the address, instead of 13208 we write 13802. If it is enough that a reasonable police officer at the time of the warrant can ascertain exactly where the place is. Put a description of the house in as well. If we have an overly broad warrant and the police just confine themselves to the actual area where we have probable cause, then all the evidence will be excluded. Search warrants have a ten day clock on them. Must be executed within 10 days, if not then it is presumed stale. Even within the 10 days, there can be a staleness concern. If police wait a day or two, then you can make the argument that the probable cause has dissipated. Was PC in play at the time of the execution? Nighttime execution? Police must make a separate statement indicating to the judge that they need to execute the warrant at night. Must be pre-approval by judge to do a night time search. Search warrant to search a bar because they have PC that dope is being dealt. Cops enter the bar and tell all patrons to get up against the wall. Pat down the patrons and feel a cigarette pack in Ybarra’s pocket. They leave him alone and then search the bar and find the dope. Then go back to Ybarra and search him, they take the cigarette pack and open it, and then find heroin. What is the result? We may have reasonable suspicion to briefly question the patron, but no suspicion to believe he is armed, and no way to take out the cigarette pack. PLAIN VIEW RULE: Subsequent to a justifiable prior intrusion, if the police are situated in a place where they have a right to be and they come upon evidence, which they have a probable cause to believe is incriminatory, they may seize same. 2/16/04 Plain View Doctrine – An extension of what an officer can do once he is already inside for a justifiable reason. Hypo 2 on Plain View Hypo sheet.
If there was a proper execution of the search warrant then plain view will kick in. Was there a proper search here? Well, the night time execution is unjustifiable because there is not exigent circumstance or no right to do so in the warrant. First look at the search warrant and see that it fails, then look at exigent circumstances, that fails as well. Now we can look at Robinson/Chimel, after the arrest we can search the lunging radius. Here the door was open so we would probably be able to get the gun under Robinson/Chimel, but if the door was closed and locked we may have a hard time getting in to the house even under Robinson/Chimel. Now with the negatives, we already said the search was invalid because the warrant was not executed properly, but if they could be in lets keep going. Assuming the warrant is good, we can search only where it would be reasonable to believe the blood stained clothing or carpeting would be. So we probably can be in the bathroom but we can only look at things in plain view, can not move the pictures unless there is probable cause based on the quick view without touching. No probable cause here so tough argument to say that we could really examine the negatives. Opaque vial. We do have a right to be in the closet, because there could be blood stained clothing in there. See the opaque vial and can we look further into it? We know it can’t have blood stained clothing in it, so the only way we can get it is if it is clearly incriminatory. Tough argument here. Clear vial. Can we be in the pantry? Probably we can be in the pantry. If there is probable cause to believe it is contraband then we can grab it, but then we can not go back into the closet. What if they found the clear vial first, can we use that knowledge if we then find the opaque vial in the closet, probably can use the knowledge but again, can only look for clothing, if find the vial then can use your knowledge to develop probable cause. Consent Hypos 1. Consent is going to be a product of an essentially free and unconstrained choice. This looks ok. 2. View it through the objective reasonable eyes of the cop. 3. We are not concerned about cop deception, but we are concerned about voluntaryness, and in this case you can make a real good argument that there is no consent. Objective factors for consent: 1. Age is a factor, 10 year old or 95 year old is not going to be able to consent. 2. Personality, level of sophistication (intelligence, education, timidness). 3. Whether the person has knowledge of their right not to consent. 4. Environment, whether the person was in or out of custody. Hypo #6. Tough argument here, because the consent is conditioned. Where to look, how long to look, and what to look for. A person can also revoke consent at any point.
7. Once he asks for an attorney then anything he says is unusable unless he is read Miranda rights. Miranda only applies to custodial interrogation. Sometimes the cops would continue to talk to people after they invoke Miranda rights, because the info can not be used as admissible substantive evidence, but could be used to impeach the guy if he says something different later on. Once the Miranda rights are invoked, consent can only be given if the suspect makes his own voluntary effort to revoke the Miranda rights. 8. 9. A real problem here, probably no consent. 11. Use reasonable viewpoint of the officer to determine if the person actually had authority to consent. 12. Nothing private from you spouse, pretty much can give consent to everything. How about a parent, pretty much like a spouse, but what about a locked box where that person has the only key. 2/18/04 Consent must be generally free and unconstrained. People can put limits on their consent and can withdraw consent. Another thing is the common authority rule. Look to see who has the common authority. Common police procedure is to ask for consent first, even if you have a search warrant. If we have a search and we knock and wait a reasonable time and no one answers, then we can kick in the door. What about the hot pursuit exception? If the police is in hot pursuit then they can kick in the door without knock and notice. What is hot pursuit, usually when lose sight it is over, but there is some reasonable time consideration. Once the exigent circumstance is over, either by arrest of suspect or realizing that he is not there, then the police have to get out of there. While they are in the house, however, the cops can look around quickly for weapons and the plain view doctrine is in full effect. Exigency Hypos Hypo 3 First go through Katz analysis to determine if the info the cop got from looking in the house was a search. Drapes were partially open but the guy was in the curtilage. Probably not search because any bonehead could walk up and see it. That gives rise to PC but that is not enough to get in. If we have PC and if the evidence is in the process of being destroyed then the warrant-less entry is permissible to go ahead and seize. Hypo 4
Can they enter the house? The police can freeze the situation until the timely arrival of the warrant. We need, 1) Probable cause to believe there is incriminatory evidence inside the house, 2) we need a reasonable good faith belief that the evidence will be destroyed., 3) the police must make reasonable effort to reconcile law enforcement and privacy needs by waiting for the warrant but not letting suspect go in alone. Hypo 6 We know one of our exceptions is imminent threat to human life. 2/25/04 Exceptions to the warrant rule 1. Hot pursuit 2. Probable cause that evidence is in the process of being destroyed 3. Probable cause that there is evidence in the premises, and good faith belief that the evidence will be destroyed before they can obtain a warrant. Under these circumstances we will allow the cops to freeze the situation. The police can monitor the people in the house or hold them outside. If the people in the house want to leave we have to let them go and can only do an analysis from the start, RS to do a brief detention and then PC to arrest. 4. Protective Sweep 5. Imminent threat to life. Scream from a house, go right in. If there is a 4 year old alone, then this is right in the cracks. 3 year old is easy, 6 year old no way.
Hypo 5 Change the drug transaction to armed robber. Can we pop the guy out front, yes we can because the guy is in a public area and we have probable cause to believe he committed a felony. We have reasonable suspicion to believe there is another suspect inside the house. Buie Rule – If during an in-house arrest the police have reasonable suspicion that others are in the house, are associated with the criminal enterprise, and pose a threat, the police may make a protective sweep. What can do they do during the protective sweep? They can look in places where that specific person may be and probably can look for weapons. It is a limited protective sweep. 3/1/04 Non-traditional Terry frisk of the areas accessible to the driver, probably can not open a locked box.
Vehicle searches At a high school dance the principle goes through the parking lot and sees a joint in the back of a student’s car. The principle opens the door and takes the joint out. What result? The 4th amendment only applies to the government, does not apply to the school. What about if an officer does it. Well just because the item is in a car the courts say there is a reduced expectation of privacy. Also just because it is in a car that creates an exigent circumstances, may drive off. Exception to the search warrant requirement is with the automobile. If there is PC to believe there is contraband or fruits or evidence of a crime in the car, then we can enter the car and search. Can tear the car apart as long as the thing we are looking for could fit where we are looking. Even if the car is impounded and the cops come back 2 days later, they can search it. Cars are exigent even when they are not exigent. In California, an RV is considered a car. Metal Checklist for Car 1. Immediate search with probable cause (Carol) 2. Later search with probable cause (Chambers) 3. Minor violation stop (Whren) 4. Inventory Search (Opperman) – Must be agenda neutral 5. The container inside the automobile (Acevedo) 6. Search incident to arrest Minor violation stops Stop a guy for speeding, the police officer looks through the windshield for the vin. There are some papers covering the vin on the dashboard. The police officer leans in to move the papers aside to see the vin to make sure the car is not stolen. As he leans in the car he sees the butt of a gun sticking out from under the seat. Can cop seize the gun. Look to see if cops actions were reasonable. The courts said that the vin is meant to be public so if the cop is reasonable in acting to view the vin then that is ok. Now he sees the gun and it is per se illegal to carry a concealed gun in a car, so he can seize it. Whren v U.S. Police are suspicious of a car, they think there are drugs in the car. The car turns without signaling and the cops use that reason to pull them over. As they walk up to the car they see cocaine in the lap of the passenger. Scalia says that the police’s subjective intent of why they actually stopped it is irrelevant. They had a legit reason to pull the car over so that is all that matters. Robinson/Chimel does not apply to traffic stops. But the police can ask the driver to exit the vehicle.
Atwater v. City of Lago Vista Atwater was driving without a seatbelt in Texas. Police pull her over and there is a statute that says police can arrest for this violation but there is no jail time. He was authorized by the authority of the state to arrest her, so he could do it. Opperman (know by name) Automobile Inventory search. Allowed pursuant to police procedure. When a car has been impounded, when a person has been arrested and the car is brought to the police station. When a person is poped on the road for drunk driving, or wherever, the cop can do the inventory search right there. This can only be done if it is part of the pre-approved administrative policy. The cops can only do an Opperman search when it is truly for inventory purposes. Subjective intent is discussed. 3/3/04 Carol rule is that we can search the car with PC. The Chambers rule is that a later search with PC is ok under the same rationale as the Carol rule. Minor Traffic violation rules, the cop can take reasonable steps to uncover things that should be public. Inventory search of automobile is Opperman, basically Lafayette for cars. What options does the police officer have in a drunk driving situation. Tammy driving drunk with Ginnie in the passenger seat. Officer pulls Tammy over and she is arrested for drunk driving. What can happen from here? There are a lot of options. Can the officer go in the backseat of the car and open Tammy’s backpack. Under Robinson/Chimel probably yes. If there is a procedure that allows for the cop to let the passenger take the car and allows the cop to inventory the car right there, then we can get in under Opperman. Acevedo PC to believe there is marijuana in the trunk. Cops pull the guy over. Can the open the trunk? Yes. What to do when they get the trunk open? The court says anything we find in the car under Carol/Chambers can be searched. Now or later, it doesn’t matter. They can open the box in the trunk right there, they can take the box to the station and open it 2 hours later. Can they search the glove box? Need to make a case that there is PC that there could be stuff in the rest of the car. What about a Terry stop of someone who is driving? Not clear yet, but it seems like the police can briefly stop a car with reasonable suspicion, but the courts have not really ruled on this yet. Miscellaneous Searches Camara Public health inspector wanted to look in someone’s apartment. The guy says you can not come in without a warrant. The guy has a right to do that, but the warrant that the guy gets is one without cause. It is almost a gutless warrant. But it does give it a paper
trail, and does put some restrictions on what the inspector can do. Called a Camera Warrant. What about a heavily regulated business? They do not have a right to ask for a Camera Warrant. Alcohol, Tobacco, Casinos, firearms, Foster Parents. TLO v. New Jersey (Know by name) Two girls in bathroom smoking. Teacher smells smoke and goes in the bathroom. Does not see the girls smoke. The girls are brought to the principle’s office and one confesses to smoking. TLO does not confess. The principle opens her purse and finds a pack of cigarettes. Not against rules to have cigarettes only to smoke. Can the teacher open the purse? The court said that the teacher was acting like a cop in trying to enforce the rules so the 4th amendment applies. But they say that if the actions are reasonable then no warrant is required. They use the automobile exception on the school grounds. 1 st major holding is that school officials are subject to 4 th amendment. 2nd holding is that on school grounds we will not require a warrant. 3rd is that reasonable suspicion is needed to do the search. This whole thing only applies to Public Schools, not Private Schools. 3/15/04 Police take blood against a man’s wishes. They use the exigency to get around the warrant requirement, because the blood alcohol level was dissipating. Rochin is the shocks the conscious case. Know it by name. Cops step into a house and see a guy pop some pills. They suspect that the guy was swallowing narcotics to get rid of the evidence. Here the cops created the exigent circumstances. They could never get in the house in the first place. Cops hold him down and pump his stomach. Court rules that this activity shocks the conscious.
Guy has a bullet embedded in his body and the prosecution needs that bullet as evidence, they have PC that it is incriminatory. The court said that when doing a bodily intrusion a search warrant is not the end of the road. Need additional analysis, balance the need for the evidence with the risks/possible harm. 5th Amendment concerns. We are in an accountant’s office investigating fraud, and the police gather documents. Does the seizure and admission of that evidence raise any 5 th Amendment concerns. 5 th Amendment basically says the state can not compel the defendant to “testify” against themselves. Why? Something that is compelled is usually not trustworthy, and there is something inherently evil about compelling. What if the guy is compelled to hand over the documents? Then the guy is being compelled to say I have the documents and have control over them and know where they are.
6th Amendment concerns. Search warrant for your office and you are a lawyer. The police want to seize the business records of one of your clients. The problems here are what about the attny-client privilege of the other client’s files, and the attny-client privilege of the actual client. Things that are privileged by attny-client can never be gotten. If that particular file is not covered by privilege then we can get it, but only with a subpoena DT, when a 3rd party produces the files. In this case the file will come into play but how the file was obtained is not useable because that may be testimonial and incriminatory. Also communication that is done to someone else but in furtherance of the attny-client privilege falls under the umbrella as well. 3/22/04 Weeks case in 1914 said that when the police errs, the evidence will be thrown out in federal cases. They did not make the rule applicable to states. Why was Mapp the case that kicked in the exclusionary rule for the states? Mapp was not a serious crime and the police conduct was too much. Police lied about having a warrant, they man-handled her, they excluded the attorney from meeting with her. The search was very boad. Mapp makes the exclusionary rule applicable to the states. This is a judge made rule. Why the rule? This is to deter the police from future misconduct. The current misconduct is done, there is no remedy for that, but it is to deter future misconduct. This presupposes that the police will respond and do care about conviction. Criticism: No difference between little error or big error by police. Lost prosecutions. Public Hostility. Complicates the rules of search and seizure – judges may bend things now to get the evidence in, this creates weird exceptions to the general rules are created. Does it really deter? Does it increase the incidence of cop perjury. Does not afford protection to the innocent. If the police officer objectively acts reasonably then the evidence will be allowed in. 3/24/04 Standing to enforce the exclusionary rule. Standing is simply the right to come into court and ask that evidence be excluded. First off we must look at Katz. Does this person have a right to privacy with regard to the information gathered. Unless you have personally suffered a violation of 4 th amendment rights then you have no standing. An exception to the exclusionary rule is “Standing.”
Hypo 2 You have standing if you suffer a violation where you have a Katz expectation, and also you have standing on anything that directly flows from a violation that YOU suffered. Did the information flow from a violation that defendant suffered? Random Hypo Boyfriend and Girlfriend buy dope and tape it to the girl’s leg and are traveling with it. The court said that they jointly purchased the dope and jointly agreed to put it in her leg, so they both have an expectation of privacy as to that area of her leg. Hypo 6 Social guests are in the middle area. Olson makes a rule that overnight guests do have expectation of privacy, but if the person is there for business and not staying overnight, then probably not an expectation of privacy. Random Hypo Can statements used at a suppression hearing be used at trial? Not as substantive evidence but they can be used to impeach the defendant if he contradicts those statements in trial. FRUITS Once the original evidence is shown to be unlawfully obtained, then all evidence flowing from it will also be suppressed. Independent Source If the facts that are the basis for the search warrant are from an independent source, then we are not exploiting police illegality and the evidence will be ok. Inevitable Discovery Miranda violation which leads the murder to lead us to the body. The leading to the body is excluded because it is a direct fruit of the Miranda violation. The body itself can be admitted if the prosecutor can show that more likely than not (preponderance), we would have found that body anyways. What if the police can show that they would have found the body 6 hours later? In that 6 hours we would have lost some forensic evidence, that evidence that we would have lost will be excluded. 3/29/04 Standing is a procedural thing, it is not substantive. We have standing to limit the exclusionary rule. If there are multiple parties in an exam, then we should think about standing and fruit. If a person has suffered a violation, then the fruit of that violation will be excluded.
If we have enough independent valid stuff then we purge the good from the bad and we look at the good independent stuff and if we still have PC then we are ok. Hypo 4 Police illegally arrest and get a confession from a guy. They realize that nothing is useable so they cut him loose with no charges. 2 days later the guys comes back on his own and confesses again. The main question is “Have the police benefited from the violation?” “The taint of the illegal act may be washed away by an independent act.” Has the illegal act been so attenuated as to dissipate the taint. Hypo 5 Dude is illegally arrested and they take a mug shot. They release the guy because the arrest was illegal. The victim comes into the station and sees the mug shot and ID’s the dude. They arrest him again and in court now the victim ID’s the guy again. The ID of the mug shot is excluded. We would never have had the mug shot in the first place if it wasn’t for the illegal arrest. The in court ID is not excluded because it was done from the victim’s memory and was not tainted by anything. Hypo 6 Defendant is illegally arrested, the defendant is Mirandized and then makes incriminating statements 2 hours later. If it was not for the illegal arrest the defendant would even be there. But we have allowed 2 hours to pass and not conform to the rules and Mirandized. The question here is “Is Miranda enough of a factor to attenuate the initial illegal arrest.” There are 4 factors here: 1) Miranda warnings are critical but they are not the sole consideration. 2) The temporal proximity of the arrest and the confession. 3) The presence of other intervening circumstances. 4) The purpose and flagrancy of the initial misconduct. Random Hypo Guys are arrested for breaking into commercial safes. The arrest was illegal and they are released and their high tech tools were returned to them. When the police give the tools back they make a small mark on one of the tools. 5 years later they find that tool at the scene of a crime. They want to use that evidence to bring these guys in. Factors: Long time in between. What about intervening circumstances? There is another burglary, that is considered an intervening circumstance. Also need to look at the initial illegal act and see how bad. Hypo 7 The burden is on the prosecutor to show that this person would have come forward, or they would have found this one.
Hypo 8 (adjusted) Invalid confession by defendant. Six months later the defendant again confessed after telling him that the first confession is out and can never be used. When they told him that the first confession was out, that is an intervening cause. Also the second confession is an intervening cause. Also we have a large passage of time. Right to a Counsel. Who do we give a public defender to? We give it to people who are indigent. Who is indigent? We also look at the kind of case. If you are accused of a felony, automatic right to counsel. If you are accused of a misdemeanor, then it is a mixed bag. 6th amendment – basically in all cases you can bring a lawyer except small claims court. We are going to focus on appointed counsel. 61 was Mapp 63 was Gideon 64 was Gideon incorporates the 6th amendment and basically says that if the person is indigent and is charged with a felony then he must have an attorney appointed. 3/31/04 Fruit of the poison tree is essentially a but for analysis. But for the illegal conduct, we would have not gotten this piece of evidence. But there are a few limitations to this but for analysis. 1) Independent source (inevitable discovery), 2) attenuation analysis 6th amendment – right to counsel Gideon stands for the notion that in felony trials there is a right to counsel. Now what do we do with the other 90% of trials. Argersinger – This rule applies to all state and federal courts Florida had gone beyond Gideon and said that the right to counsel goes beyond felonies and extends to serious misdemeanors as well (6months to a year of jail time). What are some of the other consequences to getting convicted of petty misdemeanors? Can be used against you in further cases to elevate punishment, also may hinder you from getting some jobs. In Argersinger the court extends the rule a bit. No person can be put in jail, for any offense, unless they have a lawyer. This rule puts the judge in a tenuous position of making a pre-trial determination if he is going to put this guy in jail or not. If he does not give the guy a lawyer then he can not put this guy in jail. This decision is purely about trying to balance the costs with justice. Even if there is a case where the judge even wants to put you on probation then we must give you an attorney. Most states, including California, must give lawyer for any misdemeanor or felony.
What are the impediments if you are indigent? Knowing the procedure. Knowing how to read and write. Coming up with the money to file an appeal. (rule came about that full appellate review of an indigent will not be blocked due to monetary issue). Douglass California procedure. If you were convicted and you thought there was a good appealable issue you would file a 1 page statement of issue. That would go to a court to determine if the issue was meritorious, if so then they would appoint you a lawyer. 96% of appeals are frivolous. This case overturned it and said that every person convicted of a criminal offense has a right to an appellate lawyer for the first appeal, regardless of infraction, misdemeanor or felony. Ross drew the line and said that you are not going to get a lawyer past the first appeal. What about private investigators or experts that the defendant wants to bring? Who pays for all that stuff. Fundamental fairness says defendant must be given adequate opportunity to defend himself. Must be provided basic tools. Money judge makes these decisions. 1) benefit to defendant 2) cost to the state 3) probable value to the proceedings What if you are a public defender and you are given 3 defendants in the same case? Conflict of interest because some defenses include pointing the finger at someone else. Once the defense lawyer raises the issue of conflict of interest, the judge has the absolute obligation to make sufficient inquiry to ensure the risk of conflict is too remote to warrant separate counsel. No guarantees that another lawyer will be assigned. (teachers sex on beach). In state courts there is no duty on the judge to make the inquiry, in federal courts the judge has that duty. In order to get a new trial you must show that actual conflict existed. Faretta Defendant who is unwilling to take a lawyer. If you go Faretta then you give up your right to claim ineffective assistance. The U.S. Supreme court says that we will not force a defendant to take a lawyer, but we must show on the record that this person was made aware of all the pitfalls. 1) age 2) physical and mental condition
3) education and experience 4) circumstances surrounding the case The burden is on the state to show by a preponderance that we have an affective, eyes wide open waiver of the attorney. 4/5/04 The 6th amendment is going to guarantee that a person has a right to defend himself. But we are going to put some real caveats on that. The prosecution has the burden to show that the defendants was capable of defending himself. The judge makes that decision that the guy can do it. What happens if we have a Faretta defendant and he decides to go off on the system. What do you do with an unruly defendant that is defending himself. Every time that you have a Faretta situation, the judge is going to appoint an advisory counsel. The advisory counsel will typically sit back in the court room and will not ever make contact with the defendant, if he does make contact without being called upon there could be a 6th amendment violation. Defendants right to counsel of choice. It is absolutely within the sole discretion of the trial court (except when that discretion is abused) to appoint counsel for indigents. There was a case where a person had hired counsel to defend him on a murder charge. They were tried again and this time the defendant did not have any more money. He wanted to have his old attorney appointed and paid for by the court. In this case they said it should be done. Marsden Hearing – Motion by D to appoint a different lawyer to D because the first lawyer is not competent. Prosecution is excluded from hearing. Judge does an ineffective assistance analysis. IAC – In Affective Counsel. This is almost always with appointed counsel. What do we need in order to show ineffective counsel? 1) We must find that performance of counsel did not meet an objective standard of adequate counsel. 2) We must find that it made a difference. We have a case that plead guilty to 3 murder charges. The judge said, good, you own up to your responsibility. Now we move on to the penalty phase. In the penalty phase the lawyer did not bring any evidence about D mental state. He didn’t bring any character witnesses in. He didn’t go into the complexities of the case. He didn’t put the defendant on the witness stand during the penalty phase. The court said that it didn’t matter, harmless error case. The court will not question tactics or strategy, they only look at substantive issues.
4/7/04 Hypo Guy stopped for a traffic ticket. Another cop shows up with a dog and the dog sniffs the car, starts barking, they open the trunk and find drugs. Was it reasonable for that dog to be at the base of the car? For the final, go by piece of evidence. Take each piece and then start from the top. If you have multiple D’s, then worry about standing. Is cocaine admissible against A? Strickland Test (know by name) 1) was there error 2) did the error make a difference – so what? There was enough other evidence and he would have been convicted anyway. Ethical Dilemma Whiteside basically said he is going to lie to the jury. The lawyer threatened to tell the judge. The lawyer is either going to violate the attorney client privilege or help commit perjury. The lawyer threatened to tell the judge or to back off the trial. The court said the lawyer did exactly what he was supposed to do, he violated the attny/client privilege, he could not step down because the judge would not let him step down without a good reason. You do not have a right to counsel who will cooperate with perjury. LINE UPS and SHOW UPS We have a post indictment lineup conducted without notice to and without presence counsel. Does the lineup itself violate the 5 th amendment? No. There is nothing testimonial about how you look. What about 6th amendment? Is there a right to counsel for a post indictment lineup? Yes, the lawyer will make sure the lineup is done properly, and if it is not then they will expose the wrongfulness of the lineup to the court. They call that an ability to reconstruct the lineup. So, anytime we are at a critical phase, we say a critical phase without a lawyer is per se excludable. Is the in court identification admissible? After the lineup id, there is an in court id. We have to do a fruit analysis. We have to show that the in court ID is independent. “Can you id the suspect from your own memory alone?” Or go to the attenuation analysis. Look at time passed, look at the new setting (although probably suggestive), opportunity to see the suspect at the crime (was it a fleeting glimpse or a rape), also look at the existence of any discrepancies between how the witness described the suspect at the time and how he actually looks. Should we extent the Wade bright line test to pre-indictment lineups? No, we have a bright line test, but it only kicks in post indictment.
Stabbing case, victim severely injured, confined to hospital. One person show up in the hospital room, and the victim says that was it. The guy is arrested and indicted. Then there is an in court id as well. Show up in the hospital room: 5th Amendment problem? No, not testimonial. 6th Amendment problem? Not according to Wade/Gilbert. Drop into a 14th Amendment due process analysis. Was it just unfair, unreasonable. If we really thought this woman was going to die that night, and we did not have the ability to put together a lineup, is it unnecessarily suggestive to do the one person lineup? 4/12/04 The first way you attack a line-up or show up is 5th amendment, then go to the Wade/Gilbert timeline. If it is post initiation (arraigning the person in court, bringing him in and saying how do you plead), and no lawyer was present, then it is inadmissible. We can always argue due process. Pre initiation we still have a tool to attack a bad lineup or showup. We can always argue due process. 1) Unnecessarily suggestive: Can we have an unnecessarily suggestive showup that is still reasonably reliable. Yes, and here are the factors to look at. 1. The opportunity of the witness to view the defendant at the time of the offense. 2. The witness’ degree of attention at the encounter. 3. The accuracy of the initial description. 4. The level of certainty at the confrontation. CONFESSIONS Even if the D does not testify the prosecution can bring on witnesses to testify about the confession. Anything that comes from the mouth of the accused it analyzed to a higher degree by the jury, whether the words are a confession or an admission or anything else. When we have a police dominated interrogation, we are worried about how trustworthy the confession or admission is. The cops can not lie in order to get the Miranda waiver. But once they have gotten the Miranda waiver then the cops can lie as much as they want. How to attack confessions: 1. Due Process 2. Right to counsel 3. Miranda Ask 2 questions when talking about due process: 1. Was this voluntary? 2. Are the police tactics reprehensible? How long was the interrogation? What time of day was it?
What is the intelligence of the D? Did the D ask for a lawyer? Did the D give a long narrative or was he just answering leading questions? Minsy is in the hospital with serious wounds. He gave a full Miranda waiver and then gave a full confession. Can we come back and attack this on due process? Of course we can. Guy comes up to the cops out of the blue and tells them that he murdered someone. The cops then Mirandize the guy. Even though the confession came before a Miranda warning, it was ok because the police officer did everything right and reasonable. The court ruled that it has to be simply a preponderance of evidence that shows the confession was free and unfettered. Know Massiah by name. We are post initiation and Massiah is sitting in a car. The co-D turns into a snitch and entices Massiah to come into a bugged car. Massiah makes incriminating statements. We have no question that the statements are reliable. What about the second prong? Was the police tactic reprehensible? The court says no. The conduct was ok. The court says bright line, if we are post initiation and the D does not have a lawyer at a critical stage, then the evidence is inadmissible. Any post initiation statement, “deliberately illicited by the police”, is per se inadmissible if there is no lawyer present. Knowing exploitation by the state, of an opportunity to confront a D without counsel, is a much of a breach of the 6th as if the police created the encounter. Coleman The D under indictment volunteered a statement to an in jail informant placed there by the police. The D must demonstrate that the police and/or its informant took some action other than merely listening that was deliberately designed to illicit incriminatory remarks. The main distinction is a fine line, are the police just being listening receptacles, or are they knowingly exploiting. Cobb Cobb is charged with a burglary. He goes to his dad and voluntarily confesses. The dad calls the police and tells them. He was being represented on the burglary but not being represented on the murder. The D is mirandized and waives his right to counsel. They interrogate him and get info on the murder and the court allows the info in. I see no problem with this. What we take out of this is that the courts are going to be very specific as to whether or not a D has been charged with a crime. 4/14/04
It may have been key in the distinction between Coleman and Molton, that in Coleman there was no co-defendant, just a common jail house dude. Can we get a waiver from a defendant post initiation? Yes Even post initiation, it is possible for the police to grab a guy outside the presence of a lawyer and get info? Yes. Escobedo Pre-initiation, the suspect is encountered, he asks to speak to a lawyer. The cops say no, they continue to question him and eventually he confesses. The rule from this case is: The critical stage is when we go from a general investigation of a crime to a particularized focus. The presence of the lawyer would make a difference, so we extend the 6th amendment right to counsel. Malloy v. Hogan Expand the 5th amendment beyond the court room and went on to make it applicable to the states. This was the precursor to Miranda. Ernesto Miranda 1966 – This was a big 5th amendment case. The 5 th amendment privilege applies to settings outside of the courtroom. Custodial Interrogation – 1. The accused must be warned in clear and unequivocal terms that he has the right to remain silent. 2, 3, 4. – get from outline.
5. If the individual indicates at anytime, before to or during questioning, that they would like to remain silent the interrogation must cease. The courts have interpreted this to mean that the request must be very clear and unequivocal. 6. Any statement taken after the person invokes is inadmissible. (If the person invokes and the police continue, the original statements are not tainted, but anything further will not be admitted. But those words can not be used as substantive evidence but can be used to impeach the witness.) 7. Must be an expressed waiver of the rights, a waiver will not be assumed by silence to the questions. (Cops can’t lie in getting the waiver. After the waiver is obtained the cop can lie in the interrogation process, but can not lie so much that it is a violation of due process.)
When confronting a confession scenario take it line by line and ask 4 questions. 1. Do we have state action? Non-state people are not governed by this. 2. Is it custodial? 3. Is there a question pending? 4. Do we have a valid waiver?
Mathiason Residential burglary. The police call Mathiason and ask him to come down to the station. He drives himself down and goes in the detective’s office. The cops lie to the guy and tell him they have his fingerprints. The court says he was not in custody because his freedom was not restricted. We are going to view custody from the perspective of the accused, “a person has been taken into custody if he has been deprived of his freedom in any significant way.” It would not make sense for a cop to give Miranda warnings during a Terry stop, but the court has not answered this question yet. Innis The question pending part is answered if the cops know that their words or actions are reasonably likely to illicit an incriminating response from this suspect and those words or actions are outside the scope of normal attending. Drunk driving scenario. Pulls guy over and they ask him his name, where he is from, how many beers he had, and what year was his 6 th birthday. Is that last question valid? The court says that the year of his 6 th birthday is testimonial so that comes within Miranda. Being compelled to use your intellectual process against yourself. 4/19/04 Brewer is the Christian burial speech case, they ruled there was a Miranda violation because the cops were speaking deliberately to Brewer. They knew of his religious tendencies. Defendant comes up to a cop and says “I killed her” The cop then asks, “who did you kill?” The guy says “I killed Chris Smith.” The first statement is completely voluntary and admissible. What next? Can we make an argument that there is custody at that point? Yes. Was there a question pending? Yes, Miranda violation then. What about the flip side. Are we concerned about the trustworthyness of this? Was this the fruit of any violation? We do meet the requirements, but the cop is simply to clarify what the person voluntarily intended to disclose. Look to see if the info was that which the D intended to give up initially and voluntarily. If the cop then went further and asked, “Where is the body?” then that is going to far because the guy initially only intended to give up the fact that he killed a person. Apprehending an armed rape suspect, the cop frisks the guy and finds an empty gun holser. The cop asks “where is the gun?” The suspect points to the bush and the cop finds the gun. Then we take him back to the police station, we re-mirandize him and he gives it up. The suspect pointing comes within Miranda issues, but this time it will be admissible because “under emergency circumstances where people’s lives or safety may be in danger the police may dispense with Miranda and ask questions to allay their fears.” The gun itself will be admissible also because the bottom line is that the cops did not do anything unreasonable. Then after he finds the gun he Mirandizes him and the D gives up further incriminatory statements. We could go through an attenuation analysis to see if the further statements are in, but we don’t have to because there was no initial illegal act.
Burglar broke into a meat warehouse, he unloaded the meat freezer, he mistakenly stole 1200 beef rectums. The guy is taken to the station, the arresting officer finds out what he stole and starts laughing. He says to the guy, “you are not going to believe what you stole, you stole 1200 beef rectums.” The guy says, “if I stole 1200 rectums, I am going to be mad.” The cops ruled no violation because not trying to illicit a response. Defendant is taken to station and Mirandized, he denied involvement and gives a statement of an alibi defense. He then says I want an attorney before making a deal. The next morning two other detectives ask to see this guy. He is Mirandized again, he waives and now implicates himself. Here we have new detectives, new Miranda, new day. What result? You may say that there was not an unequivocal request for a lawyer. He said before I make a deal. Once the person invokes the 6th amendment, the D himself must initiate a revocation of that and there must be a fresh Miranda. Here there is not that. If the person invokes the 5th amendment (“I don’t wanna talk”) go through an attenuation analysis. The 6th amendment gets more importance because of the roll of the protector. The suspect is arrested and confesses without getting Mirandized. They take him to the station and do not tell him the first confession can not be used, they Mirandize him and he gives another full confession. Do an attenuation analysis, probably get the second one in. If the D initially waives, the waiver will remain valid for subsequent interrogations if they are done in a reasonable time. Do you need to re-Mirandize the D every time you go to the bathroom? Probably not, the cops are afraid this guy will invoke and they don’t want that. This rule is very vague. Just look at the cop conduct, and look at reasonableness. X is murdered and in the 2 week investigation D says nothing to police. As investigation proceeds the D is taken into custody, mirandized, he invokes. Now at trial the D says the witness’ death is accidental. Can the prosecution introduce evidence that this guy was silent during the 2 week initial period. The prosecution can not bring in the fact that he invoked post Miranda, but they can bring in the fact he was silent prior to any Miranda warning. The policy is basically we are not concerned about the voluntarilyness of his silence during those 2 weeks. Miranda is not a shield for perjury. Is there an exception to this rule. Yes, you can always bring a due process argument, if he was beaten with a rubber hose. REVIEW Subpoena DT is not to be used because it incriminates the D. Exception: Subpoena DT is used in lawyer’s office situations.