CALDWELL - Sara Pak Outline Spring[1]

Criminal Procedure Outline Caldwell/Spring 2003 4th AMENDMENT “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” PROTECTS PEOPLE [Judicial integrity and discourage lawless PO conduct] I. SEARCHES Definition: an examination of a person’s body, property, or possibly another area that the person would reasonably be expected to consider as private; must be Rx; conducted by a law enforcement officer for the purpose of finding evidence of a crime. A. Was it a search?? KATZ : founding case to searches, defines the limits of the 4 th amendment 2 prong test i. Does the person have a subjective expectation of privacy? ii. If he did, is society willing to protect that expectation of Rx? [Katz facts: Do they work for Katz? Δ convicted of transmitting wager info over a public telephone. FBI used an electronic listening device to hear his conversations; they could’ve gotten a warrant. The evidence was excluded because apparently you have a Rx expectation of privacy as to the phone booth?] no Rx expectation of: the sound of your voice, anything that can be seen from the sky, anything you say in the back of a cop car, your utilities, your bank records, paint on the outside of your car, anything that can be seen across the open fields, odors, trash, phone records, jail cell 1. No search has occurred the evidence found is admissible (can be used) common enhancement devices, such as binoculars, do not make something that would ordinarily not be a search into a search UNLESS they are used in an un-common way (Kyllo – thermal imaging device to detect marijuana not allowed) the expectation of privacy is measured to the world, and not just to law enforcement officers, even though the 4th amendment itself is only applicable to L.E. officers in general, the home is protected at great lengths 2. A search has occurred was it Rx under the circumstances? (general rule is that a warrant is needed for Rx unless an exception is satisfied; MUST BE Rx) Evidence is not automatically thrown out per se, only if un-Rx - - - Greenwood: police officers/garbage collector sting operation, found drug paraphernalia in bags left at curb, Majority ruled it was not a search 1 Oliver: Open Fields doctrine, the Majority ruled that it was NOT a search despite all the signs put up and the efforts taken by the Δ to keep his land private, not a direct extension of the house area (curtilage) Rehnquist generally favors the police and does not find search/seizure took place Supreme Court standard of review is De Novo II. SEIZURES Definition: the act or an instance of taking possession of a person or property by legal right or process; may interfere with a person’s reasonable expectation of privacy Mendenhall: fundamental case for seizures, the test is “would a Rx person in the shoes of the Δ feel as though they had the ability to turn and walk away?” (Pre-supposes an innocent person) Delgado: addition to the test – “so intimidating” Standards used - threatening presence of multiple officers - display weapon (un-holstered weapon even worse) - some manner of physical contact (ushering by the shoulder) - use of language or tone indicating compliance may be compelled - many factors are used, it all depends on the situation 1. It was NOT a seizure the evidence is useable 2. It was a seizure…. the evidence may not be inadmissible, but other tests are needed 3. What kind of seizure was it? the answer to this question determines what standard is used to measure law enforcement conduct there are two types of seizures if unsure what kind occurred, but you know it was a seizure, begin with the detention analysis - - - A. Detentions (1st seizure type) Definition: the holding of a suspect without formal arrest during the investigation of the subject’s participation in criminal activity; MUST BE SUPPORTED BY Rx SUSPICION (policy – with something less than PC, society wants PO to be able to question and investigate suspicious activity) Rx suspicion: (Ornelas) a particularized and objective basis for suspecting the person stopped of being involved in criminal activity; time, place, behavior, etc., not a very high threshold Its not possible to articulate a precise definition for Rx suspicion; fluid concept that adds together all the factors up to that point, may all be innocent in themselves but taken together… certain limits are in place regarding the time and the scope of the detentions, if they are exceeded, the detention becomes an arrest (if no PC – illegal, un-useable) you CANNOT touch the person in detention unless there is a Terry exception 2 TERRY: Police officer with 39 yr. experience observed two men in the afternoon walking back and forth more than 12 times in front of a store, they only mumbled when asked questions, he frisked them HOLDING: If the PO not only has Rx suspicion of criminal activity, but has Rx suspicion that the subjects are armed and dangerous, he may conduct a brief, outside the clothing “Terry frisk” - Rx suspicion involved in criminal activity allows the cop a further brief investigation, and Rx suspicion for weapons then gives the “Terry frisk” privilege - in tough situations where PO safety is at issue, the court will generally rule for the cops - informant information can be used, the more reliable the better (esp. when backed up as to its validity) - the Terry case is a narrow exception within seizures Bostick: random police questioning on buses, the officers had no reason to pick the passenger they did, Majority felt there was no seizure, just because it is on a bus does not mean it should be a search per se, take all facts into consideration Hodari: SPECIAL FLIGHT RULE that does not fit in with the rest of the decisions; b/c there was no physical contact and the Δ did not respond to the Police command, no seizure existed until he was tackled (at that point Rx suspicion in place, legal detention/ probable cause because of discarded drugs that were thrown when running, legal arrest) – flight can add to legal Rx suspicion Dickerson: Upon leaving a crack house at night in a high crime area, the Δ turned and walked quickly away from the cops. The court held Rx suspicion did exist for criminal activity but not for the Terry frisk (guns and drugs do not necessarily go hand in hand). Drugs were found in this case – just because a weapon was not found in the Terry frisk and that is what the court is trying to protect the PO from does not mean it should be ignored. If the “incriminating character” of the object is immediately apparent during the frisk, it should be allowed in (not the case here where the cop played around with drugs). B. Arrests (2nd seizure type) Definition: the taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge, the initial stage of criminal prosecution, MUST BE SUPPORTED BY PROBABLE CAUSE Cite and release (still have 4 th) & Custodial Probable Cause: based on facts with the personal knowledge of an officer or affiant (person who fills out the sworn affidavit) sufficient to convince a Rx cautious person that an offense is being committed or has been committed by the accused, looked at from a hindsight perspective The hindsight perspective test tells us that we don’t examine whether or not there was another, more Rx way the officer could have done it, but if the way the officer did it was Rx at that time under those circumstances Knowing the facts the officer did at the time, would a Rx detached magistrate issue a warrant if time had allowed? (answer as if we could freeze time) no 4th amendment rights exist after you have been arrested (for custodial only) if the police do not officially call the procedure an arrest but the person is taken to the station and fingerprinted and questioned – ARREST (Dunaway, p.484) 3 - - - @ roadside checkpoints, you are seized but society is willing to allow it because of the interests it serves balanced with the invasion to privacy (minimal) – not so intrusive we aren’t willing to allow it for policy reasons arrest warrants also supported by PC, usually not used if you have an arrest warrant, it can get you past the threshold of Δ’s home; Δ must be home at the time, during day Only at Δ’s house, not to search it just to get him 1.) Without a warrant RULE: he police are allowed to arrest without a warrant in a public place for misdemeanor or felony committed IN THEIR PRESENCE as well as for a felony not committed in his presence if PC existed notwithstanding (regardless of) adequate opportunity to procure a warrant felony v. misdemeanor Potential for state or federal prison v. only jail potential (less than 1. Yr.) when there is no potential for custody at all, it is an infraction drunk driving is a misdemeanor unless there is property damage the police are also allowed to arrest when they are in HOT PURSUIT of a suspect, even if that suspect goes into a private home (can still be hot pursuit even if you lose visual contact briefly, all based on the objective Rx standard) 2.) Informants two prong Spinelli test is used as a factor in determining if the evidence was reliable Is their reliable history with this informant? Is the information provided first hand knowledge of the crime? Using all non-criminal pieces of information and making a jump into PC, the court protects this leap because PC is based on probabilities, not certainties, flexible concept Courts more often use the GATES “Totality of the Circumstances” Test 3.) Rx Time of Custody Deprivation for a significant period (more than ten days) of time is unconstitutional without just cause “up on information” arrests that rely solely on the police reports must be sworn statements or else custody is NOT allowed (v. “up on indictment”) - - - - - Gerstein v. Pugh: (p.853) Δ was arrested for a misdemeanor, and arraigned. The court denied him the opportunity to be heard because the judge can set the next date at the preliminary hearing simply by reading the sworn statements of the officers (for felony you have the right to request a hearing). The court ruled that deprivation of freedom for a significant period of time (more than ten days) without the opportunity to be heard was unconstitutional. III. SEARCH WARRANTS A. Mechanics standard is probable cause (based on facts within the personal knowledge of the officer or affiant ; substantial probability that certain items are the fruits, instrumentality, or evidence of crime and can presently be found in a certain location) 4 - - must describe the house, the places within the house to be searched, and what they are looking for - with items that are not per se contraband, such as guns, you must be VERY specific in describing them there must be a sufficient connection between the items and the house, confined to looking in places in the house where the items listed would fit presumption of validity (burden on Δ to prove otherwise) Rx mistakes can be protected If a warrant is overly broad, everything found pursuant to that warrant is excluded (the narrowness question is unclear at this point) B. Execution 10 days after the magistrate signs the Warrant, otherwise stale PC must exist at the time the warrant is executed even if it is within those 10 days During the day required, you need an additional showing of PC why a nighttime search warrant would be necessary Nighttime is described as the inability to distinguish facial features from a Rx distance (sketchy) you MUST “Knock and Notice” to give the person opportunity to open the door, ID yourself as the police and your purpose; protects privacy, protect property (Wilson); DNA to hot pursuit then wait a Rx amount of time before kicking the door in huge exceptions where the officers may be in danger (if borderline, always rule for officer safety theory) or if there is a threat of destruction of evidence if there are people in the house when the warrant is executed, the proximity factor is usually only enough for Rx suspicion without other evidence Once they leave, they can’t come back! Wilson: (p.109) The bottom line of this case is that you MUST knock and notice, then wait a Rx period of time. It gives the person an opportunity to open the door, eliminating the police destroying personal property and barging into a home when there is no need. People usually will comply anyway. Protects the sacred area of the home. C. Exceptions (6) - these are situations in which no warrant is needed but the search is still considered Rx 1.) Incident to Arrest Once a person is under lawful custodial arrest, they lose all 4th amendment rights (cop safety and destruction of evidence twin goals) The immediate reaches and lunging radius of the arrested person can be searched without a warrant pursuant to Chimel up to and contemporaneous with the arrest You can’t go back later and search the lunging radius, it must be at that time – the point of search radiates from point of initial seizure (can’t walk Δ around house to get where you want) If the person brings something with them to the station then it can be searched pursuant to a standard inventory process UNLESS the cops think that there may be contraband in the purse (then they need a warrant – look at the motives just like with vehicle inventory) - Robinson: (p.149) Once a person has been arrested, all of their 4 th amendment rights are gone. The twin aims of this ruling were cop safety and destruction of evidence. They can search your body and your immediate reaches ( and can do an inventory search if proper motives at station, ex. handbag). 5 The court also held that a police officer has the right to monitor someone under custodial arrest. (Lafayette p.184 – inventory search ok, no contemporaneous requirement, look at the cop motives) Chimel: (p.114) When a person is arrested, the police have the right to search the lunging radius around that person up to and contemporaneous with the arrest. This is regardless of whether or not the person can actually control or access this area (ex. locked trunk still searchable). THIS ONLY APPLIES TO CUSTODIAL ARRESTS. Chadwick: (p.163) Footlocker with marijuana in it that was being loaded into the car. The police did not search it right there when they arrested the Δs, but rather waited an hour and searched it later. The court ruled this severed the connection and that it could not be searched without a warrant at that point, even though they could have searched it earlier. (DNA to things inside the car) 2.) Plain View Definition: subsequent to a justifiable prior intrusion, if the police are situated in a place where they have a right to be and come upon evidence which they have PC to believe is incriminatory, they may seize it. really an extension of what the police can do once they are lawfully inside can’t seize something that does not have an immediately apparent incriminating character (guns are ok, but not videotapes unless that was on the search warrant) must also have a lawful right of access to the thing you want to get to 3.) Consent voluntariness is a question of fact, considering; Age (extremes present issues) Personality (education, experience, intelligence) Knowledge of the right to refuse Intimidation or police deception Custody v. non-custody it must be a free and unconstrained choice without any pressure TEST: totality of the circumstances (Rx mistake may be protected) Refusal to consent to a search is probably admissible because there is no Miranda problem If you are in custody, the law will presume against free and unconstrained choice Consent can be “qualified” to certain rooms or times and can be re-neged All members of the house have authority to consent to areas of mutual use (“common authority exceptions”); joint authority mistake is protected, not if it was some random person Courts are split regarding consent by a spouse, prevailing thought is that there is nothing off limits to a spouse (no Rx expectation of privacy) Parents can consent for their kids 4.) Exigent Circumstances (5) as soon as exigent circumstances no longer exist, a warrant is needed - - - Hot Pursuit → the police are also allowed to arrest/search when they are in hot pursuit of a suspect, even if that suspect goes into a private home (can still be hot pursuit even if you lose visual contact briefly, all based on the objective Rx standard) Knock and Notice DNA here 6 Destruction of Evidence → must be in the process of destroying it, must be PC that they are destroying it. (Basically the officer has to see them or hear something that is very dispositive – toilet flushing, garbage disposal, etc.) PC to believe contraband & Rx belief destruction is imminent (“Freeze”) → police can prevent someone from entering or follow someone around the house to make sure that no evidence is destroyed. May not necessarily be able to arrest the person, and may not have enough for a full out search. (See marijuana plant from hall, person trying to get back into apartment, can freeze the situation and prevent re-entry) Not a seizure because the person can still turn and walk away. Protective Sweep → Buie; 4 elements to be satisfied In-House Arrest (NOT Curtilage) Rx suspicion others are in the house Associated with the criminal enterprise Pose a threat to officers or others The officers can do a sweep up to and contemporaneous with the seizure of other persons, and anything found would be admissible by plain view. They can only look where they believe a person could Rx fit/be hiding. If the crime involved weapons, they can look anywhere that weapon would fit if they had reason to believe they were in the house. Imminent Threat to Life → If the officer has PC to believe that someone will be hurt or is being hurt, they may enter and search anywhere that person may be without a warrant. - - 5.) Travel Stops and Vehicles (6) There are 6 exceptions to the warrant requirement for searching cars. There are two reasons why cars are less protected than homes. Mobility is the first, and reduced expectation of privacy is the second. There are many regulations and requirements with cars, they drive on public streets and are required to be inspected, etc. Chambers Chambers Immediate Search with PC → IfIf an officer has PC to believe that there is contraband in the car, he Immediate Search with PC → an officer has PC to believe that there is contraband in the car, he may search the entire car. (Remember, ifif he finds contraband, there must be more PC to support a may search the entire car. (Remember, he finds contraband, there must be more PC to support a continued search of the car. MAKE THE NEXUS) continued search of the car. MAKE THE NEXUS) Later Search with PC → If there was PC at the time, and there is PC later, the cop can still search Later Search with PC → If there was PC at thepassed. Etc. – Chadwick DNA cop can still search even if hours have passed. Even if days have time, and there is PC later, the even if hours have passed. Even if days have passed. Etc. – Chadwick DNA Minor Violation/Stop → If the cop has PC to believe you committed a minor traffic violation, regardless of his subjective motive (racial profiling), then he can stop you. If he then has PC to believe contraband is in the car, he can search the entire car. Inventory Search → these are allowed for three reasons; (Opperman) Protection of owners property Protection of police from claims of theft or lost property Protection of police from dangers (ex. bomb) Cop motives are examined here, can’t be a pre-textual reason behind an inventory search. Police are allowed to follow the approved STANDARD administrative procedures and can take the car apart, anything they find is subject to PLAIN VIEW. 7 Container Inside Car → If the police have PC to believe contraband is in the car, they can search the containers inside the car EVEN IF AT A LATER TIME (Chadwick overruled and the requirement of continuity was thrown out.) Incident To Arrest → This has already been covered under Robinson/Chimel, but always remember when someone is arrested in their car that you can go to the lunging radius AND to auto exceptions to the search warrant requirement. Whren: (p.72) The court ruled the subjective, pretextual reasons that an officer pulls over a person for violating minor traffic laws are irrelevant. HUGE racial profiling case. “Driving While Black” – long anticipated case Opperman: (p.141) Police towed a car and then searched it for inventory because there were valuables on the front seat. Drugs were found. The police were Rx in doing this inventory search and the drugs were admissible. TLO: 4th Amendment is applicable to school officials; there is no SW or PC requirement on school grounds, you only need Rx suspicion to search 6.) Miscellaneous Searches Camara Warrant allows for the searching of businesses There is less of an expectation of privacy so PC/Magistrate are not needed here (inspectors for these types of administrative boards carry around blank warrants) Simply serves to give notice to the owner and more knowledge about what, when, where can be searched For heavily regulated businesses (junkyard, alcohol, guns) you DO NOT NEED a warrant – court justifies it by saying it is a voluntary and informed choice of the owner and there is a great public interest - Burger: (p.325) The Δ operated a junkyard and could not produce the necessary papers when the inspection team showed up. They searched and found evidence of stolen cars and parts. This evidence was admissible because these types of businesses can be searched without warrants. IV. - BODILY INTRUSIONS Rx expectation of things inside your skin When you try to get a warrant for something inside the skin, it is a balancing test with the level of intrusion considered as well as the need of the state Rochin: Any conduct by the police that is so highly offensive it shocks the conscience (tried to beat pills out of the Δ and forced him to throw up) will be excluded A. Blood this IS a search it does not violate the 5 th amendment principle against self-incrimination if it is a case of destruction of evidence (drunk driver taken to hospital in Schmerber p.766) then this is an exigency exception to the warrant requirement 8 - otherwise, a search warrant is needed to take the blood if evidence was being destroyed at the moment in the blood and you arrested the person, you could also conduct a search w/o a warrant pursuant to Chimel B. Voice you have no expectation of privacy as to the sound of your voice and you can be compelled to speak if you refuse to speak, that can be given as an instruction to the jury unless there is a testimonial character, no warrant needed (ex. mis-spelling of the word “fleg” probably would be testimonial, not a stutter) testimonial evidence involves the sharing of a thought process, something other than just physical evidence V. 1st AMENDMENT CONSIDERATIONS 1st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Are these rights in danger because of police investigations, searches, and questioning into criminal activity? The Press is protected by the first amendment – are their documents also protected? They want to protect their sources, privacy, bad for their business if not coverage You CAN issue a search warrant against third parties that are not the actual criminal suspects (ex. newspaper that might have pictures of the crime) Search used over subpoena or less intrusive option because the third party may be uncooperative or hiding things Always concerned about confidential sources, don’t want them to dry up VI. 5TH AMENDMENT CONSIDERATIONS 5th Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. A. Self Incrimination (5th) shouldn’t be compelled to give any evidence/testimony/etc. that would incriminate self in a crime under the 5th amendment (privilege waived when you take the stand) 9 - includes being forced by subpoena to produce records that have evidence of a crime (but a search by the police is allowed) if you voluntarily committed something to paper before the search, you were not compelled by any government force to put it on paper, therefore it is fair game fingerprints, blood samples, the sound of your voice are pieces of evidence that you may have to provide and that do not violate your 5 th amendment right The only time a subpoena is used over a warrant is with attorneys b/c of the atty.- client privilege – what about doctors, priests, psychologists? VII. Exclusionary Rule TO DETER FUTURE ILLEGALITY OF POLICE OFFICER’S CONDUCT. this is the remedy for errors that occur in protecting constitutional violations (not just 4 th); if the police mess up, the evidence obtained is inadmissible MAPP (p.340) 1961 Watershed case that established the exclusionary rule – the court was confronted with a flagrant example of police abuse, as in Weeks (1914) The Δ can always bring a civil suit against the police but wouldn’t be successful in the Leon (p.354) case, the cop did everything right, got a W and relied on it to search, the W was later ruled to be insufficient – the ER does not bar the evidence here because it would not serve the purpose of deterring future illegality since there was none Rakas (p.381) tells us that you cannot use the evidence in the case of that Δ whose rights were violated, but it can be used against others - 1.) Standing – the e.r. only bars evidence obtained in a violation of YOUR rights - Requirement that must be met before the rule can be applied, the court doesn’t like the exclusionary rule so they have limited it by this doctrine - No vicarious application - Does this person even have the right to argue for a violation of his rights? - Not about the substantive rights of the person - 2 basic ways to get standing (Rakas/Katz analysis) Was there a Rx expectation of privacy? Did the evidence directly flow from the original illegality? - for example, the owner of a car illegally searched would have standing, but not any of the passengers in the car OR the person who was forced to confess would be the only one who could exclude that illegal confession and what directly flowed from it - applies to overnight guests, but NOT business - a claim of ownership can be a factor in determining standing, but not enough alone (ex. you own a car but aren’t driving it, you own the object) 2.) Fruit of the Poisonous Tree “BUT FOR” cant get here unless you have standing original evidence is referred to as “the tree” and everything subsequent as “the fruit” once the original evidence is shown to be unlawfully obtained everything flowing from it is inadmissible for the person who had standing the standard of proof is a preponderance of evidence Independent Source Rule exception; burden on π, if the evidence could have been obtained from an untainted source that is not connected to the illegality, it can be admitted 10 - - Inevitable Discovery exception; mostly used with weapon or item found on body; burden on π to show that even w/o the illegal conduct, the evidence would have been found; Nix case, got the girl’s body admitted as evidence b/c they proved the search would have uncovered it w/o the help of the illegally obtained confession Attenuation of the Fruit exception; evidence is stretched so far from the initial illegality that policy reasons do not support suppression, ex. confession three days later after hired an attorney Miranda warnings Intervening act (voluntary act of the Δ or other, ex. testifying witness) Purpose/flagrancy of police misconduct Proximity (time lapse) These elements break the causal chain linking the evidence/legality Nix: (p.372) also called Brewer, the court ruled that the body of a 10 year old girl was admissible, even though it had been obtained through the illegal questioning of the Δ, because other factors would have led the police there in a short amount of time anyway – nothing from the separate source was dependent on the violation 3.) Criticisms disproportional (small cop error leads to serious charges dismissed) lost prosecutions public hostility no protection for cases that have never been filed (good all purpose criticism) severely complicates the law of search and seizure because judges hate it and they constantly try to find ways to rule around it, nuance upon nuance not a deterrent encourages cop perjury VIII. 6TH AMENDMENT CONSIDERATIONS 6th Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. A. Right to Counsel and Other Aids this is a fundamental right of the Constitution (Gideon) $ issues here for the Supreme Court when deciding what circumstances require the States to provide representation NO IMPRISONMENT WITHOUT COUNSEL All felonies have the right to representation, and any misdemeanors that entail jail time as well (makes the judge guess beforehand whether or not a misd. will get jail) There is a waiver of all financial impediments on appeal (Δ has a right to a perfect transcript, etc. for misdemeanors or felonies) The first appeal creates the right to counsel (no discretionary or reviews) per Douglas 11 Gideon (1963, p. 574) The right to counsel is a fundamental right and the 6 th amendment applies to all states for felonies. (Limited it due to $ issues, didn’t want to impose a huge financial burden on the state). Federalization of criminal procedure law. Argersinger (1972, p.585) Forcing the judge to decide before the trial or sentencing what the sentence will be in order to determine if misdemeanors require an attorney. If there is jail time, then the Δ is entitled to representation. This includes probation w/potential for going to jail if violation. Incentive to decriminalize minor offenses? 1.) Experts and Extras - What does the state pick up? The Δ must be given a fair opportunity to present his defense + the basic tools + adequate opportunity to present claims [“Basic Tools Test”] the benefit to the Δ is balanced with the cost to the state and the probable value that it would add to the proceedings (no DNA expert needed for a streaking case) B. Joint Representations/Pro Se Defense/Counsel of Choice 1.) Joint Representation - judicial economy always a big argument for the prosecution in trying to keep defendants together - guilt by association problems (limiting instructions usually ineffective) - conflict of interest for attorney if he knows one of his clients is really the guilty party - if the defense raises the issue, 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 - no sua sponte duty on the court (although federal judges usually do b/c good habit) 2.) Pro Se Defense Definition: one who represents himself in a court proceeding without the assistance of a lawyer; Latin “for oneself, on one’s own behalf” - you have a right to fire a court appointed attorney or to refuse one altogether - the system is better served when both sides have an attorney, but the Supreme Court recognized in Faretta that there is a constitutional right to proceed without counsel if the Δ has voluntarily and intelligently waived; “Faretta Waiver” - burden is on the prosecution to show that there was a valid waiver by a preponderance of the evidence - you can lose the Faretta waiver privilege if you demonstrate inability - an advisory counsel is assigned so that if the Faretta right is revoked, the system is protected b/c that attorney can step right in (can’t interfere beforehand) “Wingman” 3.) Counsel of Choice - the trial judge has the absolute discretion to pick your counsel as long as the lawyer is competent - objective considerations can be examined to show that a certain lawyer should be appointed, but they must be extremely significant (time, knowledge, expense considered) Faretta (1975, p. 635) Any Δ can waive the right to be represented by an attorney. There must be a voluntary and intelligent waiver. The record must demonstrate it, and the prosecution has the burden to show by a 12 preponderance if they do not believe it has taken place. Questions for the judge to ask might include possible defenses, knowledge of the particular law and its penalties, prior experience, education, etc. C. Effective Assistance there is a de facto line between hired counsel and appointed counsel where this doctrine arises there is a two part test to show ineffective assistance of counsel (IAC); #1 – standard of Rx that counsel’s conduct fell below (deferential review from the point of view of the attorney at the time) #2 – the deficient performance prejudiced the Δ (show by a Rx probability that the result would have been different but for) the standard is extremely hard to satisfy, presumption that lawyers have properly carried out their duties it can be analyzed at the verdict or sentencing phase no right to have an attorney that will assist you in committing perjury - Strickland (1984, p. 611) This case established the two-part test used to determine IAC. The lawyer here didn’t present any character witnesses or any mitigating evidence and the court STILL didn’t find him ineffective. The first part of the test may have been satisfied but not the second. D. Pre Trial Identification eyewitness testimony is usually awful because it is very subjective and open to suggestions, influenced by the frailties of the human mind “Wade/Gilbert” RULE: any line-up conducted post-indictment without counsel is per se inadmissible (DNA to photos) The 6th amendment is violated because this is a critical stage for the Δ; the attorney needs to opportunity to observe the line up in order to base future arguments (ability to reconstruct) the presence of an attorney might also deter any misconduct on the part of the police a critical stage is a grave time for the Δ because of the high potential for substantial injustice, anytime the presence of a lawyer is necessary to preserve the Δ’s right to a fair trial if a line up (or show up) is excluded, the defense should try to show that the in-court ID is also tainted as the “fruit” of the poisonous tree, a.k.a. the illegal lineup(many factors to consider, including time, opportunity of witness to see Δ, certainty, and accuracy of prior description) in other words, “end run” the bad stuff and show there is an independent source for identification (the attack/crime, NOT the lineup) if the line up occurs pre-indictment, it can still be attacked on the grounds that it is so suggestive and so unreliable as to violated the DP clause (same factors you would use to show the in court ID was tainted and solely based on the police conduct) you can have something so suggestive but still be reliable, so always attack reliability over suggestiveness (obviously attack both if you can) - - - 13 IX. CONFESSIONS & MIRANDA A. Confessions – MUST BE VOLUNTARY there are three ways to attack the validity of a confession; Due Process Approach, 6th Amendment approach, and the Miranda Approach (95% out on this method) worried about compulsion because that material is less trustworthy most confessions are pre-initiation, so these methods do not solve the majority of problems a confession is something that is actually incriminating, while an admission is ANYTHING said by the party or opponent, incriminating or not (admissions are not subject to hearsay exclusion) if you have inconsistent stories before trial and at trial, your statements before can be used to impeach you at trial regardless of whether or not a Miranda violation occurred (Harris, p.746 can’t pervert the Miranda shield as a defense to perjury) if 2 confessions? Look at the first violation; 5th ? (“I don’t want to talk anymore.”) – Attenuation analysis 6th ? (“I want my lawyer.”) – Initiation by Δ, new Miranda 1.) Due Process Approach - there are two components, both of which need to be violated in order to satisfy this method; police misconduct and voluntariness - Look at any heavy handed tactics of the police used to get the confession - Was the confession the product of a free and unconstrained choice? - Time honored 5th amendment approach, show by a preponderance of the evidence - If there was a violation, the exclusionary rule applies so try to get the evidence in by one of the three exceptions Spano (1959, p.648) Pre-Miranda, shows how confessions can be excluded based on a due process violation. It is a totality test, so take into account all the factors (length of interrogation, requests for counsel, manipulation, etc.) Here the Δ was unintelligent, interrogated for 8 hours, constantly refused questions and asked for a lawyer, and was finally tricked into confessing by someone he thought was his friend. Connelly (p.655) Shows that there MUST be a link between the police misconduct and the voluntariness in order for a DP violation to have occurred. Also cleared up confusion on the standard of proof required, which is “by a preponderance of the evidence.” 2.) 6th amendment approach post initiation (when the right to counsel attaches) usually accounts for the exclusion of about 5% of confessions basically the same rule as Wade/Gilbert (used for line-ups and identification) except this applies to interrogation RULE: if a post initiation interrogation occurs without a lawyer, it is per se inadmissible There must be some action beyond listening by the police designed to elicit confessions or statements (active v. passive); the officer knew that his actions were Rx likely to produce incriminating evidence, objective test - 14 - - It only protects you for the crime you are charged with and no other, it doesn’t matter if they are overlapping or related (Cobb, p. 677) “offense specific” protection If the new charge is within the 4 corners of the indictment, then it can be considered protected with the other crime because of the similarity (but not if other elements need to be proved in order to convict for that new charge) Of course the right to counsel can be waived Massiah (1964, p.665) Right before Miranda, the court was really struggling with confessions – the Δ was out on bail (post-indictment). His co-Δ helped out the police and recorded incriminating statements. Because this was an action by the police after initiation likely to produce incriminating responses, it was per se inadmissible because no lawyer was present. Escobedo (p.693) There were no formal charges brought but the police basically knew this was the guy. Massiah didn’t apply, but the court did not want the confession to be allowed because the Δ didn’t have a lawyer. If an investigation is no longer a general inquiry but focuses on a suspect, this is a critical stage and the 6th amendment attaches even if its pre-initiation. Later swallowed up by Miranda because too general and not a good tool. B. MIRANDA Approach (1966) - the court could’ve used Escobedo, but they wanted to use this case as a vehicle to establish new law; this is really about informing you of your rights and protecting your 5th - it will make a huge difference that the lawyer is there at this critical stage (custodial interrogation) - RULE: State action, custodial situation, questioning or interrogation pending, waiver - This case said that the Δ needs to be aware of his rights, some requirements are it must be given prior to any custodial interrogation in clear and unequivocal terms, any request to be silent must be honored - Built in exclusionary rule - CUSTODY: physical control or otherwise deprived from their freedom of action in any significant way from the POV of the Rx accused suspect, a simple coercive environment is insufficient (ex. in the cop car, handcuffed, etc.) - INTERROGATION: (Innis) express questioning AND any words or actions that the police should know are Rx likely to elicit incriminating statements from THIS suspect (other than questions normally attendant to arrest, i.e. “what’s your name?”) - The “Tailored aspect” as in the Christian burial speech is crucial; playing into the weaknesses or Achilles heel of the Δ is more likely to be a violation - This is an objective test, cop motives are NOT examined - Muniz drunk driving standardized question exceptions (routine booking questions) - Tests can be part of a routine or standard, but they cannot challenge the mental coordination of a Δ, only physical 1.) Waiver - Requires an EXPRESS waiver, not silence, in order to continue (preponderance); effective for a Rx period of time - At no time during the Miranda analysis, including the waiver, is intent examined HOWEVER the cops cannot lie during the Miranda waiver (although they can most other places) Miranda v. Arizona (1966, p.700) 15 Police arrested the Δ and took him to an interrogation room and got a confession. Court was really concerned with the interrogation atmosphere and the coercive conditions that go on behind closed doors. Innis (p.733) The court defined what exactly “interrogation” was for the purposes of Miranda. It defined it as express questioning or any words/actions that the police should know are Rx likely to elicit incriminating statements from THIS suspect. This does not include questions that are normally attendant to an arrest or questions that follow a standardized procedure of the department (asking certain questions for drunk driving suspicion). This case did not fit that standard because the cops were talking back and forth to each other in an offhand way, according to the court. Their statements about the handicapped girls school and their fears about the rifle were NOT an interrogation, so the fact that the Δ led them to the gun was NOT a Miranda violation (fruit exclusion). C. Miranda Exceptions as a sidenote, the cops only benefit from continued questioning after a Miranda violation has occurred – even if the suspect asks for a lawyer, there is nothing to lose by keeping him talking and that may even be used to impeach him later once you are inside Miranda, the Δ must unequivocally ask for assistance confessions or statements in violation of Miranda can ALWAYS be used to impeach someone who lies on the stand Blurt-outs are not in violation of Miranda, but be careful of what happens next (Is it questioning? Is it a follow up? Smartest thing to do is give Miranda right away) - 1.) Exigency Rule - if someone is in danger or this situation creates a danger, the cop does not need to immediately concern himself w/Miranda - The situation can be dealt with first (getting the gun out of the crowded foodstore) and then the Δ can be Mirandized. 2.) Follow Up Rule - If the Δ has confessed something to a cop spontaneously, and the cop asks a “follow up” question, there has been no Miranda violation - It must have been something that the Δ intended to convey in his original utterance, must be an attempt to elicit something that was initially divulged - Ex. Δ: I killed her. PO: You killed who? Δ: I killed Jane Doe. - this would NOT be a Miranda violation because the Δ originally attempted to convey to the PO that he committed the crime (murder) and the identity of his victim (woman/Jane Doe) 16 CASES Rochin (p.25) 1952 Facts: Officers went to Rochin’s house w/o a warrant of any kind and broke into his bedroom. There will pills on the nightstand that Δ Rochin swallowed. The officers jumped on him and tried to get him to spit up the pills to no avail. At the hospital, he was forced to ingest a solution that made him throw up so the cops could get the pills. Holding: The evidence was obtained by methods that offends due process because of the outrageous conduct of the officers. It should not have been admitted. The court refuses to afford brutality the cloak of law. Mapp (p.340) 1961 Facts: Δ convicted of having porn and her conviction was based entirely on this evidence. The cops did not have a warrant for her arrest or to search, nor did they have permission, but they barged in and took stuff anyway. They refused to let the Δ see her lawyer, who was present. They were physically abusive of the female Δ who they said was “belligerent.” The court used Wolf as its precedent to support admissibility. Holding: The Supreme Court reversed, saying that regardless of Wolf, the evidence is inadmissible. This extended the exclusionary rule of Weeks to the states and did not allow the evidence to be used. Gideon (p.574) 1963 Facts: Δ charged w/ felony and did not have a lawyer. Δ asked for a lawyer to be appointed but the court denied him. Convicted and sentenced to 5 years in state prison. Attacked on appeal his right to counsel. Holding: The right to counsel is a fundamental right of the Constitution and the state will provide all Δ’s charged with felonies with an attorney. Douglas (p.578) 1963 Holding: Every Δ has the right to counsel for their first appeal. Terry (p.413) 1967 Facts: The police officer had 39 years experience and was patrolling when he saw the Δs. They were going back and forth in front of a window at least 12 times. Feared they might have a gun. Walked up to him and asked for their names – mumbling. He patted them and found a gun. Holding: The evidence of the gun is allowed. It was a search and seizure. However, it was Rx because the officer had Rx suspicion to believe criminal activity was afoot and Rx suspicion to believe they were armed and dangerous. That gives the officer the right to conduct a brief investigatory stop. Katz (p.524) 1967 Facts: FBI agents used an electronic device to listen to Δ’s phone calls inside a public telephone booth. Holding: The evidence is not allowed (was a SEARCH w/o a warrant or exception) because petitioner had a subjective expectation of privacy inside the booth, one which society is willing to accept as Rx. 17 Chimel (p.114) 1969 Facts: Officers had an arrest warrant for the Δ; they knocked on the door to his house and his wife let them in. When Δ came home, officers arrested him and conducted a full search of the house, which he objected to. All rooms of the house were searched, drawers were opened and furniture was moved. Items were seized and admitted at trial. Holding: The only search justified when a person is lawfully arrested is of the area within his immediate control; the “lunging radius.” The evidence should be excluded because the whole house was unlawfully and un-Rx searched. Argersinger (p.585) 1972 Holding: You cannot be imprisoned without counsel at your trial. Forces the judge to guess what the sentence is going to be beforehand. Robinson (p.149) 1973 Facts: Officer pulled over a car with three occupants in it. The drive was operating in violation of traffic laws. He searched the driver and found heroin in a cigarette pack in his breast pocket of his coat. Holding: The search was not un-Rx because it was incident to a lawful arrest. Opperman (p.141) 1976 Facts: Illegally parked vehicle was towed. There was a watch on the dash. The car was searched pursuant to standard inventory procedures and drugs were found in the glove compartment. Holding: Because of the mobility of cars and their reduced expectation of privacy, cars are different from houses. They may be searched according to regulations but the motives of the officer are analyzed. The inventory search was not un-Rx. Rakas (p.381) 1978 Facts: The Δ were convicted of armed robbery and the gun/shells were introduced as evidence against them. The evidence was found in a car that both Δs were travelling in, but neither was driving or owned the car. Holding: Even though the search of the car was illegal, the Δ could not exclude the evidence because they lacked standing. The person’s premises or property must have been violated (because that is what the 4th protects) and that did not occur here. It was not their car; the evidence did not come from their bodies – no standing. Gates (p.99) 1983 Facts: A search warrant was issued for Δ based on an anonymous handwritten letter that was very descriptive and specific. The letter was later backed up by the actions of the Δ. (Wife drives the car down, and it is filled with drugs. Husband flies down and drives it back, wife flies back.) Holding: The letter, backed up by the actions, is enough for PC for a search warrant. Informant information should be considered in a “totality of the circumstances” test with the two Spinelli factors as guides only. Nix (p.372) a.k.a. Brewer 1984 Facts: This case is known as the famous “Christian Burial Speech” case. The Δ was in police custody, arrested for the murder of a young girl. The officers were transporting the Δ, who had a lawyer that had advised him not to speak to the officers. The officers gave a speech to the Δ for him to “think about” to the effect that the girl deserved a Christian burial and it would be a shame if the snow hid her body. The Δ took cops to the body. 18 Holding: This was conduct Rx likely to elicit incriminating statements from the Δ and therefore inadmissible. But the body was allowed in under inevitable discovery. Oliver (p.278) 1984 Facts: Narcotics agents drove past signs/Δ’s house/barn to a field. There was marijuana growing in the field. The evidence was originally excluded because the court felt that Δ had a created a Rx expectation of privacy w/signs and locked gate – the agents did not have a warrant & it was an unRx search. Holding: The Supreme Court reversed and allowed the evidence. The intrusion into the fields was not unreasonable, and therefore no warrant was needed. The field was visible from the air, and there can be no legitimate expectation of privacy as to open fields. Buie (p.126) 1990 Facts: Arrest Warrants for Δs; officers went to the house to arrest them. The officers fanned out through the entire house, including the basement. One person was arrested in the basement, and then a red running suit was found in the basement. The running suit was allowed at trial. Holding: No warrant was required. If the officers had reason to believe others were in the house, they could conduct a cursory search of all the places that another person could be hiding. Hodari (p.84) 1991 Facts: High crime area being patrolled by officers. They came across a group of boys, the boys scattered and ran, and the officers chased them. Boy threw drugs from his pocket. Cop tackled him and handcuffed him. Holding: The boy was not seized until the officer tackled him. The drugs were admissible evidence. Whren (p.72) 1996 Facts: Officer observed a car stop at a stop sign for an unusually long time. When he U-turned back the car sped away without signaling at an un-Rx speed. The officer pulled the car over and saw two bags of crack cocaine in the passenger’s hands. Both passengers were African American. Holding: The decision to stop a car is Rx if the officer has PC to believe that a violation has occurred (he did here). The subjective intentions of the officer are irrelevant. CRIMINAL PROCEDURE CHECKLIST – CALDWELL I. Was it a search? 19 Protected by the 4th amendment, must be Rx IF NOT A SEARCH, EVIDENCE ADMISSABLE II. Was it a seizure? protected by the 4th amendment, must be Rx government conduct needed Mendenhall/Delgado test DETENTION Based on Rx suspicion, Terry (2 steps) ARREST Based on PC Cite and Release (still protected by the 4th, not a custodial situation) Custodial Arrest (no 4th amendment rights) Inventory at station allowed but check out cop motives police can arrest you in a public place w/o a warrant for felony or misdemeanor committed in their presence or if they have PC to believe a felony was committed by you Arrest Warrant? Can get you past the threshold of Δ’s house if he is there Only to get the suspect, NOT TO SEARCH Remember plain view Hodari special flight rule Informants (Gates, Spinelli) - - - IF NOT A SEIZURE, EVIDENCE ADMISSALBE III. Search Warrants Wilson “knock and notice” requirement (DNA to hot pursuit) 20 Specifics, time, place Rx suspicion only of people there when W is executed (need more for PC/search) INCIDENT TO ARREST EXCEPTION IV. - 5th Amendment Concerns Self incrimination Worried about compulsion/trustworthiness of info Testimonial character (sharing a thought process) Subpoena used only for attorneys to produce documents, SW for everyone else Waive this privilege when you take the stand Blood, fingerprints, voice, picture = NOT self incriminatory, but may need a W (balancing test) V. - Exclusionary Rule deter future PO misconduct (Mapp 1961) 21 need a constitutional violation by a government actor STANDING Rakas/Katz analysis VI. - 6th Amendment Concerns Gideon fundamental right to counsel applies to states Argersinger no imprisonment without counsel (guessing game for judge) Douglas right to counsel for first appeal for felonies Extras “basic tools test” Joint representation burden on the judge if raised by defense (no sua sponte) Pro se right and Faretta waiver (knowingly and intelligently, preponderance) IAC (2 step, Strickland, v. hard to satisfy) Wade/Gilbert: absolute right to counsel post indictment at a lineup (critical stage) Try to sever in-court ID if based on an excluded line up, always can use the DP approach and attack reliability/suggestiveness VII. - Confessions DP approach; police misconduct and involuntariness (Spano 1959) 6th Amendment Approach/Massiah (1964); post indictment, offense specific MIRANDA (1966); state action, custodial, interrogation (Innis) Waiver Follow up and exigency exceptions Bright line test: give up some constitutional rights for easily understood and applied tests Post indictment: formal initiation of charges Critical Stage: any time where the presence of a lawyer would preserve the Δ’s right to a fair trial, the chance for substantial injustice is high 22 Always make the NEXUS. Always use case names. The court protects that small jump into PC, all based on probabilities. Amendment 1st - RAPPS 4th 5th 6th Protections Think about this in the context of document production and search warrants for third parties (like a newspaper). Search/Seizure must by Rx and warrants are only issued on PC Self Incrimination, think about testimonial evidence and Miranda here Right to counsel, can be waived, IAC 23