CrimProUltimateOutline

Criminal Procedure *signifies cases that should be known by name I. SEARCHES—must have PC before they can search th 4 amendment prohibits unreasonable searches and seizures 1. *Katz pg. 480 Defines what a search is (elastic test): 1. Does this person who is trying to exclude have an expectation of privacy as to what govt. is trying to search? (subjective) 2. Are we as reasonable members of society objectively to believe there is a reasonable expectation of privacy as to the world? (objective)  If search—ask was that search reasonable (did they have PC)?—broad (not necessarily excluded) Facts: Telephone booth, man closes—surveillance on top outside of booth, could only hear his side of conversation  Closed booth and device used to amplify what is being said to be used as evidence against the D th th  Was a search, not per se inadmissible, but must push it through 4 amendment analysis—4 amend protects people, not places  If wasn’t a search is all admissible Hypo: Bus terminal, dog goes thru boxes and packages for drugs, Dog indicates drugs in particular package, cop doesn’t seize package, notes the address, calls authority in place parcel is going, police arrest defendant when he picks up the parcel Admissible or excluded? Was this a search? (using Katz language and analysis)  Has subjective expectation of right of privacy for that package  Did person who packaged the drugs have expectation of privacy for air surrounding the package (objective)?  Smelling of the bag is not a search, so can use whatever comes to light  Can form PC because dog alerted to contents of the package Expectation of privacy? If govt opens package then it is a search  Then ask whether it is reasonable Hypo: Couple picks up phone and can hear conversation of neighbors (cell phone)—call police and tape conversations of neighbors—taped conversation key piece of evidence Admissible at trial? 1. Is it a search?  Was there reasonable expectation of privacy—when talking on cell phone—NO  Then not a search and whatever comes to light is admissible  D will argue have a reasonable expectation of privacy 2. If was a search—cops need a search warrant  A. 4th amendment only proscribes for the govt. conduct—no analysis if taped conversations by civilians Reasonable expectation of privacy as to the world, not to the govt only Hypo: Cop sees garage door open slightly—18 inch opening, cop suspicious—gets out and looks in and sees contraband in the garage (anything that is per se illegal)—i.e. sawed off shotgun Grabs gun and charges D  Cops observation is usable because little kids could peer under the door and see the plant., then get a warrant after observation  But then grabs the gun Is gun excludable? Yes, can’t “violate the integrity of that man’s castle” by seizing the gun—is a search Enhancement devices 1. Is it a common enhancement device—flashlight is common (what is common?) 2. Is enhancement device used in a common way?  If NO to either question then is a search Hypo: Same cop, same neighborhood, at midnight—shine flashlight under garage door sees contraband  Does not matter the cop is using enhancement device because it is common device and it was used in a common way Hypo: Police dogs are common enhancement devices and their use does not automatically render a nonsearch a search B. 1 Hypo: Principle smells marijuana on D. No uncommon enhancement device used and D has no expectation of privacy to the air around him. No search. Hypo: Kids lined up, dog stops on specific kid and sniffs kid directly Argument for defense? Dog is common enhancement device, but sniffing people is an uncommon use of common enhancement device  Renders what wasn’t a search and made it a search and have no cause, then unreasonable, prosecution of the kid will go nowhere Hypo: Growing weed below ground in Lancaster—snitch tips off the cops, get warrant, use thermo helicopter and see heat underground, large water and energy uses, and large deliveries to the house Bust the guy  No search; common enhancement device (at least the public knows it exists), used in a common way. Hypo: Busted for Drunk Driving—in cop car to take toxilizer test, cop records your slurred speech to use against you Katz: 1. No expectation of privacy 2. Common enhancement device used in common way  Can be used Hypo: Making PCP out in the woods, and police think that much, cops follow guy into town and watch him buy things which are precursors to PCP, put a homing device on truck and track truck back to cabin (lab) Is location of the lab the product of a search? Is it admissible? Katz: 1. Reasonable expectation of privacy? For public road no 2. Reas expec of privacy for private road? No—airplane can see 3. Use of beeper—does it render what wasn’t a search a search—factual distinction—can argue either way 4. Is location of barrel in the lab product of illegal search in above hypo? Yes C. Open Fields—regardless of public or private land, do not have an expectation of privacy 1. *Oliver (pg. 256)—Open field Facts: Snitch tells cops of weed growth, cops drive on land with no trespassing signs, cops trespass and see it on open field. A. Open field—not protected ever by 4th amendment (black letter law) B. Individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. Hypo (case): Anonymous snitch tells of illegal weed growth, but within a fence within a fence (10ft within a 6 ft), police hire a plane and see the contraband, arrest the bastard In the curtilage? Does that matter? How can D protect self? Cover it? Conclusion? Any member of public flying in the airspace could have seen everything the officers observed, that area is within curtilage does not put out of reach of police observation.—VEIWABLE and admissible Hypo (case): Cop on routine helicopter patrol, over a suburb, sees greenhouse in D’s backyard, hovers 400ft above greenhouse and uses high-powered binoculars to see weed growth.  Not a search as observation, no expectation of privacy—OK  Must have probable cause and then warrant to go into greenhouse. D. Curtilage—no reasonable expectation of privacy from the air Hypo: Sell dope, can’t see in plate glass window unless walk up front lawn and press nose against the window, cop busts in and busts the guy Admissible?  Observation is admissible—window left open nonetheless  Trespass doesn’t negate observation or make activity become a search.  Can’t kick in door and bust guy—warrant necessary E. Garbage—person’s garbage is not protected by the 4 amend Greenwood: Cops look thru D’s garbage that was put out to the curb and found drug paraphernalia.  Not a search because there is no reasonable expec of privacy as to garbage that is put outside th 1. 2 SEIZURES 1. 4 amendment prohibits unreasonable searches and seizures A. Encounters with law (one of three) 1. Unprotected encounter—no cause  Whatever comes to light is usable 2. Terry Stop—need reasonable suspicion 3. Arrest—probable cause Hypo: Cop sees D at stop and rob in black jacket at 2 AM, goes to check him out, pulls out ID and with it a packet of cocaine comes out Admissible? Yes, unprotected encounter  If not a seizure of the person then anything that comes to light as result of the police conduct is usable  If was a seizure—ask was the cops conduct reasonable A. Mendenhall Test for seizure th 2. *Mendenhall Facts: D departed plane, met drug courier profile, agents approached D, identified selves and asked for ID, ticket name different than ID, agents asked if she would accompany them to office, D never told could walk away, found narcotics on her A. Insufficient cause to make a seizure B. When is a person seized?  Would the reasonable person (innocent person) feel like they could simply turn and walk away? C. Factors as to when seizure taken place (not all necessary): 1. Threatening presence of more than one officer 2. Display of a weapon 3. Some manner of physical contact by the cop 4. Use of language or tone indicating that compliance might be compelled  If these factors are not present then the cop action is not a seizure. Absent some or all or these factors a rx. Person would feel free to leave. IF the suspect walks away or refuses to answer the questions, the police cannot use that refusal to get rx suspicion or PC. B. 1. 2. Bizarre applications of Mendenhall Delgado—would the average reasonable person feel intimidated so that they felt they could not turn and walk away Bostick pg 214 Facts: On bus, cops went directly to D and asked to look in bags, find drugs Issue of seizure: no probable cause, if unprotected encounter then all admissible A. Was there a seizure? If yes then no dope admissibility  Cops told Bostick had the right to refuse B. Was police presence so intimidating he wouldn’t feel free to ignore police presence and walk away?—applying Delgado  Reasonable innocent person—not clear answer C. To determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. 3. Chesternut Facts: 4 cops in car, see D and know he’s a doper, D aware that car near him, and track him for block, D throws out bags of cocaine Issue: would TARP feel OK to ignore police presence—was he seized when walking down the street? A. No seizure B. Argument for D—TARP would feel intimidated and seizure at that time C. If seizure, then ask if that seizure was reasonable D. If no seizure—it all comes in 4. *Hodari—flight scenarios. pg 76 Facts: Kids in Oakland, police on patrol, police tell them to stop, cop takes after kid who is in mid-flight, D throws away cocaine, cop tackles him Issue: Did seizure take place before the D was tackled? (i.e. when cop yelled “Stop, in the name of the law!”)  If so, drugs were the fruit of that seizure based on no reasonable suspicion and the evidence concerning them was properly excluded  If not, drugs were abandoned by D and lawfully recovered by the police, and evidence admitted A. If no seizure, then all is admissible B. If yes seizure, then must be reasonable suspicion, and better have search warrant 3 C. Was the police presence so intimidating as to prevent the average reasonable person from turning and walking away? (confluence of Mendenhall and Delgado seizure tests)—seizure test  Caveat to Mendenhall—person in flight from the police—apply to Hodari standard—if person does not submit to the cops TARP is not seized until they are physically seized. C. Seizures 1. Detention—least of the seizures—only need reasonable suspicion for detention seizure  Terry stops 2. Arrest—custodial arrest (shackled and taken away)—police need probable cause DETENTIONS—need reasonable suspicion Hypo: Old man walking down street at night, cops looking for old man, cop asks this old man a question, man walks away, cop comes around and man pushes his arm off the cop nd Suppression hearing? Trying to supress 2 meeting where pushed hand off st  1 meeting an unprotected encounter—anything comes to light OK nd  2 meeting—Is there a seizure—Mendenhall standard—reasonable person would feel seized  Detention (when in doubt go to detention 1st) 3. Reasonable Suspicion—An assessment of the whole picture by those versed in the field of law enforcement must yeild a particularized suspicion that the individual being stopped is engaged in wrongdoing.  Does the cop believe that criminal activity is afoot? Brown v. Texas pg 425 Facts: cop sees 2 people in neighboorhood, asked question, cop frisked him A. Was he seized? At what point?  Mendenhall/Delgado question—yes, a seizure,  Detention—reasonable suspicion? Yes, sufficient underlying factual material that criminal activity is afoot *Terry v. Ohio pg 383 Facts: cop on street in afternoon, sees two men with long coats in downtown, in front of jewelry store, men look in window o f store, man comes up to talk to them, do this 12 times, cop has much experience. Cop approached and asked for ID, they mumbled, he slammed and frisked them A. Was there a seizure? When he 1st asked for info—no, unprotected encounter, but when slammed against the wall— seized B. Detention—reasonable suspicion? Yes C. 2 Prong Terry stop test: 1. Reasonable suspicion criminal activity is afoot—cops can then briefly detain to further the investigation. 2. Reasonable suspicion that D has a weapon to conduct frisk (for cop safety)  can use some of same facts 1. 2. Outer clothing frisk—least intrusive conduct. If the cop feel anything through suspect’s outer clothing, he can reach in to seize it Dwelling—as long as the cop does not dwell on an object inside a pocket, he can seize it and have it admissible. By dwelling on an object, the cop turns the detention into a search. 4. 5. Terry Hypos and Cases: Hypo: Cop has reasonable suspicion for narcotics activity, cop finds hard object, pulls out a weapon. Gun admissible? No, must engage in independent analysis for gun than for drugs. 6. Dickerson pg 413 Facts: object, a. b. c. d. Cop has reasonable sus of narcotics and independently sus that he is armed. Patdown feels a soft cotton cop reaches in pulls out cocaine. Cocaine admissible? No, doesn’t work with Terry. Drugs aren’t dangerous, can’t use Terry as a pretext. Reasonable suspicion? Develop facts to give rise to it.  Vicinity of crack house  Made eye contact with the police, walked away  Walked into an alley  Enough for suppression motion? D will notice court that he wants to suppress the evidence, then go to court, if NO search warrant, burden on prosecution, search or seizure presumed unlawful  Must get to the minutia of facts to bring reasonable suspicion to light Can only search if officer feels there is a reasonable suspicion that D is packing a weapon.—Terry Must have suspicion of narcotics completely independent from the suspicion of a dangerous weapon. Hypo: 4 Terry stop, cop pulls out burglar tools. Channel locks admissible? Yes, cop within Terry’s reasonability (knife or gun) 7. Adams v. Williams pg 398—don’t need case name Facts: 2:15 AM in high-crime area, snitch (unreliable) tells cop that D has narcotics and gun in his belt. Cop goes over tells him to open his door, guy rolls down window, pulls out gun from man’s belt. Also found narcotics. 1. Try to suppress gun and dope. 2. Seizure? Yes, couldn’t ignore the cop’s presence  Proper application of the Terry frisk because cop had rx sus to believe the D was armed and briefly furthered his investigation. Hypo: Anonymous phone tip, tells cop many things, including D has cocaine. Cops pull the man over and cocaine there. Was the cop’s pull over a seizure? Yes, red lights, not feel as though free to leave Detention (reasonable suspicion) ok? Court says yes, doesn’t take much to get to reasonable suspicion 8. *Michigan v. Long Facts: applied the validity of a Terry frisk to automobiles. A. Detention type seizure—Reasonable suspicion doesn’t have to be specific as to what the crime is. Have it B. Knife in car, is it useable? Katz analysis, do we have reasonable expectation of contents of car as travel in streets—no 3. W/out knife no reasonable suspicion, but w/ then reasonable sus—then Terry, can do that least intrusive frisk— can frisk the car right around the driver if have reasonable suspicion that the D is armed and dangerous (opening the console after reasonable sus, then find contraband, then have PC and can search the whole car) 9. Sharpe pg 419 Facts: DEA agent on patrol and sees truck with another car on highway, truck riding low in rear, quilted material covered the rear and side windows of the camper. (not concerned about other reasonable explanations) Follow 2 vehicles, and stop them for over 20 min. Issue: Is detention too long so that it becomes an arrest and all excluded? No, is reasonable At what pt. is brief exceeded? Doesn’t matter other alternative was available, but whether police acted unreasonably in failing to recognize or to pursue it. Hypo (Michigan v. Summers): Search warrant to house, the go and see man flee the scene. Right to seize that guy? No, can’t derive anything from not talking Detention, need reasonable suspicion, do we have it? Yes, reasonable suspicion by physical proximity to the house How long can we hold this dude? Court says it was reasonable to hold him for as long as the search takes 10. Dunaway v. NY pg 440—same as previous case, well beyond Terry Issue: IS questioning legal on less than prob. Cause? No, not if detained at station REVIEW—Checklist Seizure? Mendenhall by way of Delgado  Detention or Arrest (go to detention 1st)  Reasonable suspicion—is criminal activity afoot  Can make brief stop—Terry  To frisk need reasonable suspicion that armed and dangerous—can use same facts  How long can detain? Reasonable amount of time (Adams, Sharpe)  Terry frisk: did police engage in least intrusive outer clothing patdown—determined by reasonable ARRESTS—PROBABLE CAUSE 1. Draper pg 56 Facts: Police have informant (reliable according to the cops with no substantial factual basis) who tells cop about a narcotics dealer in great detail and cops find guy described exactly as informant put forth, then bust him and find heroin on him. 1. Probable Cause (definition) is based upon Facts within the personal knowledge of the officer or the 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. 2. PC is probabilities a. Would a judge sign a warrant under these facts (freeze the facts)?—test for PC INFORMATION FROM 3RD PARTIES 1. Run it thru Ag/Spinelli if find self in PC problem and info is coming from a 3 rd party 5 a. b. Is this guy reliable? Did he have first-hand knowledge?  If fail under one or both, then go to IL v. Gates for PC  ***USE BOTH FOR TEST*** 2. *Illinois v. Gates pg 91—totality-of-the circumstances for PC Facts: Anonymous snitch letter says Gates woman drives car down there, he comes to get it, and they take drugs back to Chicago 1. At this point no judge would sign a search warrant Facts continued: then cops do follow up research, 1. follow car to FLA—usable, no expectation of privacy—from the air 2. Lance at certain hotel, and registered—usable, no expectation of privacy 3. do check on Gates IL license and address—usable, yes 4. car license matches—usable 5. learned about reservations same as date in anon letter—tough to use 6. D driving back to Chi.—usable  Shows interrelationship between Katz, usability, reasonable suspicion and probable cause— Katz relevant 7. Have more than Draper, have done investigation after getting merely tip—PC to find dope? Yes 8. Gates changed the rules from Aguilar/Spinelli test to totality-of-the circumstances approach (used above) ARREST AND SEARCH WARRANT MECHANICS A. Reasonable—If a police officer acts reasonably in making an arrest, then the arrest and any evidence seized is valid and admissible Hypo: Cops went to Hill’s home, Miller opens the door, cops cuff him (custodial arrest) because he fits Hill’s description, then do search incident to arrest in Hill’s home and come up with contraband, prosecuting Hill and H wants to supress because arrested the wrong man Can use the dope against Hill? Yes, incident to good faith arrest of Miller Hypo: In Detroit, stop-and-identify ordinance (police, without cause can ask for ID of anyone), cop comes up to D who is with a woman who was taking off her pants, D says he was cop, then changed his answer and was cuffed because failed to comply with ordinance, found drugs on the man 6 months later ordinance unconstitutional— cops acting reasonably B. Rule for a warrantless arrest in public  A peace officer is permitted to arrest without a warrant in a public place for a misdemeanor or felony committed in his presence or a felony not committed in his presence if there is PC for making the arrest notwithstanding an adequate opportunity to obtain a warrant Hypo: Cop in DD scenerio DD is a misdameanor How to tell felony from mis? Statutes If wobbler assume that it is a felony  If cop sees DD behavior—mis in the presence, can make an arrest  If cop sees wreck after the fact, even if DD—can’t arrest right away—if mis that cop didn’t see then—can make citizen’s arrest  Mis has got to be in the presence of the cop to arrest the culprit 1. *Gerstein—Rule for warrantless arrest in public 844 Facts: Homeless guy, habitual drunk, one day D cussing up a storm, with toilet seat around his neck, neither cop tested him for alcohol, spends night in jail—for drunkenness in public, arraignment two days. Usually pleads guilty and gets 10 days in jail. D insists not guilty, by pleading not guilty, D will spend 30 days in jail to get trial. Thus, D is allowed a Gerstein hearing to determine PC. Argument for D: a. Felonies: (Prelim—neutral magistrate) Within 10 days of taken into custody, have right to preliminary examination  must show that more likely than not a crime was committed and more likely than not it was this guy who committed the crime.—must have PC at the prelim b. Misdameanors: If cop has put a Gerstein stamp on his police report (take oath as to veracity as to what written in police report)—then without the cops presence can formulate PC. If no stamp then D turned loose pending his trial 6 C. Knock and Notice 1. *Wilson v. Arkansas pg 109 a. Knock and Notice Rule—before a cop enters a dwelling with PC to either arrest or search, either with or without a warrant, he must 1. Knock and identify self as a cop 2. Wait a reasonable amount of time b. Exceptions to knock and notice rule 1. Compliance could lead to officer peril 2. Purpose of the arrest would be frustrated by compliance  The necessity of the unannounced entry must be justified by objective facts that led to the officer’s belief that exigent circumstances were such that caused the entry to fall into one of the exceptions to the requirement Hypo: Cop has PC that D has committed a felony. He approaches D’s house and the D sees him and runs in the house.  The cop does not need to proceed with knock and notice because there is hot pursuit. D. Limited Entry with an Arrest Warrant 1. *Payton pg 88 Issue: can cop with arrest warrant allow them to go into the house? st a. Rule (1 exception to search warrant): If simply have arrest warrant as to arrestee, and we believe the suspect is home, that by itself will be enough to allow the cops to use the arrest warrant to enter the home and make custodial arrest of the arrest of the arrestee E. 3rd party dwelling—regular rules apply—search warrant for the premises necessary 1. Olson pg 382 a. Rule: Arrest warrant for a suspect does not give the cops the authority to enter another person’s dwelling to search for the suspect. The cop will need a search warrant to search the 3 rd party’s house because he has an expectation of privacy. Hypo: See guy driving erratically, staggars out of car and stumbles around, 911, cops arrive, and find guy’s address as pursuant to the DMV records—Welsh, Knocked and noticed, no one answered, D on bed passed out—2.0 BAD Were police justified in going into house without a search warrant? (does an exception apply)—will take while for the warrant to come thru, while his BAD goes down  Exigent circumstances? No not in this case—if a de minimus offense (misdameanor) the circumstances do not allow for entry without search warrant—if not hot pursuit  Allow cop noncompliance with search warrant requirement with exigent circumstances SEARCH WARRANTS AND THEIR EXECUTION Hypo—O.J. case Cops go to OJ’s house, worried that assassin is on the loose Exigent circumstances to let cops in? Yes allow them  Cops did scan and stayed at his house, delay at the compound was the error—longer than exigent circumstances required A. General Policy: There is a preference for search warrants. If evidence is obtained with a search warrant, there is a presumption that it is a good seizure. Therefore, the burden to show it was not a good seizure is with the D. If evidence is obtained without a search warrant, however, there is a presumption it is bad. Burden to show a valid seizure is with the pro s.   1. Probable Cause for a Search Warrant—presumption of validity Substantial probability that certain items are the fruits, instrumentalites, or evidence of a crime and that these items are presently found in a certain place. a. b. 2. PC that someone has committed a crime is not PC that evidence exists in that person’s house. The rules of evidence are irrelevant when talking about PC for search warrants. No heresy concerns. Reasonable—do they have a warrant—up to Defense to attack the warrant and overcome the presumption that it is reasonable Reasonableness of search a. If searching for items described in the warrant, and the officer finds something not in the warrant, the admissibility of the items will depend on if the cop’s act reasonable. 7 3.  Presumption in favor of the warrant—won’t usually challenge PC Particularity of a Search Warrant a. The search warrant must identify and describe the place to be searched and the persons or things to be seized. b. For a place, usually the address and description are sufficient. If a search warrant is overly broad, then everything seized will be suppressed. Hypo: If cops have PC that D has drugs in bedroom, but the search warrant designates the whole house, then the warrant is too broad and even the drugs in the bedroom will be suppressed. 4. Description of Things a. Must describe items with as much particularity as possible b. Per se contraband items (sawed-off shotgun, cocaine, etc.)—don’t need to describe with same specificity as things that are otherwise innocuous. c. Items that are otherwise legal (stolen stereo, a knife, etc.) need to be described with particularity. Specificity of Warrant—if mistake made in the warrant a. It is enough if the description is such that the officer with the search warrant with reasonable effort can ascertain and identify the place intended. Hypo: Search warrant allows cops to search Ds house, detached garage, and the surrounding grounds, PC exists for house and garage, cops. Cops confined search to house and garage, found contraband in garage. Admissible? No, warrant overly broad on its face, will suppress all evidence found Hypo: Same facts, but have PC for all three, but warrant only says house and garage—find contraband in the grounds Admissible? 9th circuit says no violation, yes admissible—troublesome case 5. 6. Plain view a. Once police searching pursuant to a warrant and find other incriminating evidence or contraband in plain view, those may be seized Hypo: Cops have warrant to look for stolen fridge. Go to bedroom, open a drawer and find sawed off shotgun. Admissible? Not admissible because it is not reasonable to open a drawer to find a fridge.  If they were looking for one fridge, find that fridge in the kitchen, and then go into the bedroom and find coke and a sawed off shotgun they will not be admissible Hypo: Cop searching for narcotics with warrant to search, knock and notice, and are in house, cop sees 3 toasters, recalls recent theft of toasters and serial #’s on bottom. Cop turns toaster upside down and matches, is serial number admissible Toasters Admissible? No. Dope will come in but the toasters will NOT because it was not reasonable under the warrant to turn the toasters upside down. 7. Timeliness of warrant a. A warrant has to be executed within 10 days of judge signing the warrant. If not it becomes per se stale and any items seized under it are excluded. b. Must ask “at the time of execution, did PC still exist?” Futhermore, it can be invalid if the PC used to obtain it no longer exist. Nighttime a. Can’t execute search warrant at night, as a general rule b. Exception—must have independent PC, supporting reasons as to why you need to do it at night—judge must check box on warrant. Proximity a. Proximity is not enough to detain someone. Hypo (Ybarra v. Illinois): Cops get search warrant for bar, think bartender is selling heroin. D, clientele in bar, up against the wall, cop does Terry frisk on D, finds cigarette pack. Pats down others then goes back to D, takes out the cigarette pack and finds heroin inside.  Ct. held the heroin was NOT admissible because the only suspicion the cops had to frisk Ybarra was his proximity to the bar. Mere proximity is not enough to get to PC. 8. 9. 8 10. Lies a. If cop lies to obtain a search or arrest warrant, it DOES NOT per se invalidate the warrant if there is still PC notwithstanding the lies. Hypo: An affidavit signed by Chief of Cops states specific info about D. Cop claims he got the info from an informant. Informant made it up. 6 pieces of info were used to obtain PC for the warrant, 2 or which were lies. If there is PC based on the 4 remaining pieces of info, then the warrant is still valid. REVIEW SEARCHES 1. Search—must use Katz analysis to find rx sus or PC—reasonable expectation of privacy to the world 2. If find not a search—everything comes to light is usable 3. If yes search—was the search reasonable a. Know if it is reasonable only (with exceptions) if the police had a search warrant—search is then presumptively reasonable 4. If in open fields or can see from open fields never a search 5. Curtilage—factor to look at w/in Katz analysis—in determining reasonable expectation of privacy SEIZURES 1. Mendenhall by way of Delgado test—was the police presence so intimidating so as to prevent he reasonable person from feeling as if they could turn and walk away. (seizure rule a. If not a seizure then and Unprotected Encounter—everything comes to light is usable b. If was a seizure then won’t come in unless seizure reasonable—if have a search warrant, or exception to search warrant c. Hodari—if in flight, no seizure of that individ until physically seized—anything admissible if comes to light before the seizure (spin on seizure) 2. Detentions and Arrests a. Detention—Terry—limited intrusion if cop has rx sus  If rx sus that guy is armed and dangerous then cop can do least intrusive outer clothing patdown (to keep cops getting shot or stabbed)—limited scope for this prong of Terry—if police exceed it then is an arrest w/out PC b. Arrest—anything longer than Terry stop EXCEPTIONS TO WARRANTS  Presumptively reasonable search is one with a warrant  Will let cops search when no warrant when fit in exceptions to search warrant  Payton is also exception (to arrest warrant), limited application A. Search Incident to Arrest 1. *Robinson pg 143 Facts: Cop checked Ds license before and then knew he had revoked license on 2 nd stop (4 days later)—arrestable offense Cop frisks D and felt cigarette case—couldn’t reasonably be a weapon, but heroin found in it. Ct. held the heroin was th admissible because D had no 4 amendment rights as a result of his custodial arrest. a. Robinson test (custodial arrest rule): Subsequent to a custodial arrest, a cop can do a full search (whatever he wants) th of the entire person and anything associated with him. Once under custodial arrest, the arrestee is stripped of his 4 Amendment expectations of privacy rights. Anything found during this search is admissible in ct. BRIGHT LINE RULE. b. Policy goals: 1. Police safety 2. Prevent the destruction of evidence (doesn’t have to be related to the arrest) B. Cite and Release—(does not invoke Robinson because not custodial arrest) If cop only intends to cite and release the suspect, i.e. a traffic ticket (not custodial arrest—only cite and release arrest), then th Robinson does not apply because there is no custodial arrest. You only lose your 4 Amed when under custodial arrest. Hypo (Penn v. Mimms): Cop follows and sees expired tag on license plate, tinted car windows D gets out of car and sees lump in D’s pocket—only aware of lump because he asked her out of car and thought criminal activity afoot. Lump was frisked, felt like a gun. Admissible? Conduct reasonable in the circ. Because worried about safety, gun comes in  Balance police safety and intrusion to privacy of D—this case, cop safety wins out Hypo: Can cop then search purse in area after DD stop?  Yes custodial arrest, nothing off limits under Robinson after custodial arrest—personal property immediately in area of the person 9 Hypo (Washington v. Chrisman): Kid is drinking and cop has PC to believe he is not 21. He goes to arrrest him and kid says ID is in dorm room. Cop follows the kid to his dorm room and sees D rolling joints in kid’s room. Admissible? Rule: Officer may monitor movements of arrestee after the legitmate custodial arrest and insure the integrity of the arrest  Just because cop sees illegal conduct, doesn’t mean he can enter the room and arrest Pot admissible because kid was under custodial arrest even though he was moving with the cop C. Chimel Radius*******: *Chimel v. CA—(extends the Robinson doctrine to the lunging radius) Facts: Cops had arrest warrant for D for burglary of jewelry store. Had no search warrant. Wife of D lets cops in, but arrest D in the house and proceed to search the entire house. Ct. held items found during the search were not admissible because a search incident to arrest is limited to those things in the immediate lunging area. a. Chimel Radius: Incident to an arrest, the cops can search the person arrested and anything within suspect’s immediate control. This means the area within lunging distance where the arrestee might gain posession of a weapon or destro y evidence.  BRIGHT LINE RULE  Reasonability is not a factor Hypo: If drawer six feet from Chimel and he was handcuffed, the police could still search the drawer even though he realistically could not get to it. b. Scope of the Radius The radius applies from the point of custodial arrest  If cops drag D through house cannot search, radius does not move with D Hypo (N.Y. v. Belton): Cop stops D for speeding. He smells pot and sees pills in the car. He orders all 4 Ds out of the car and against a wall. Cop searches Ds. He then goes back to the car and finds a jacket. He unzips a pocket and finds coke. The ct. held that the coke was admissible because the Chimel radius begins at the point the cop decides to make a custodial arrest  Policy for Robinson and Chimel the same c. Time of Application Rule (*Chadwick): Chimel only applies if the search is (functionally is good enough) contemporaneous to custodial arrest. If the search is not, a search warrant must be obtained because the policy reasons for Chimel are no longer present. Hypo (U.S. v. Chadwick): D arrested for carrying trunk suspected of being full of drugs. Cops arrest Ds after they put the trunk in their car. At the point of arres, trunk in lunging radius and thus could have been searched under Chimel. The cops waited several hours and opened the trunk at the station. Not contemporaneous to the arrrest and thus not permitted without a search warrant.  Can arrest without warrant, if PC and then burden on the state because there is a pres umption that the search unreasonable due to no warrant Hypo (US v. Edwards): Facts: cops coming in 10 hrs after custodial arrest and grab the clothes. Could have gotten search warrant. — ct. says functionally contemporaneous d. Inventory Upon Booking (Illinios v. Lafayette*****): Upon booking a suspect, the cops have the authority to search the suspect’s bags, car, etc. for inventory purposes. Anything that comes to light during the booking process can be used against the suspect. D. Plain View Subsequent to a justifiable prior intrusion [must get officer in 1 st then you can look to plain view], if the police are situated in a place where they have a right to be and come upon evidence, which they have probable cause to believe is incriminatory, they may seize same.  ARGUE ALL APPLICABLE THEORIES IN ADDITION TO PLAIN VIEW RULE. Hypo: During nighttime hours, an officer is called to a family disturbance at apartment 4. Upon completion of the investigation in apartment 4, officer, while standing in the common hallway, shines his light into the partially 10 open door of apartment 5. The light illuminated a six inch marajuana plant within apartment 5. To the best of the officers knowledge, no one in apartment 5 was aware of the officer’s observation. ISSUE: Whether or not the cop can view what’s in the room when  has door open?  Yes, usable for forming reasonable suspicion P/C now b/c he sees the marijuana plant. ISSUE: Can he grab it?  No, b/c he doesn’t have one of the specific exceptions to the warrant. He must go and get a warrant for the apartment. No one saw the cops making the observations, no consent, but came to apartment building and saw the door open. SUMMARY: 1. Plain view won’t work here b/c must get in first. Failure to knock and notice issue here. 2. Plain View Doctrine is not an exception to a search warrant, but rather an extension of what the police officer can do once he is already in by lawful means. Hypo: Investigator (Iv) is involved in an ongoing homicide investigation. Iv obtains an arrest warrant for D and a search warrant to search for blood stains on carpet in D’s house and the bloodstained clothes of the victim. IV has an unconfirmed hunch that D is dealing drugs from the house and takes along another Investigator, a narcotics officer. Iv drives to D’s house and sees D on the front porch. He immediately arrests her. In the process of the arrest, he sees a handgun inside the door. He seizes the gun. Admissible? Yes & No  Iv can seize the gun under Chimel, but not Plain View because even though there is a justifiable prior entry, it is not illegal to own a gun. During the execution of the search warrant, Iv finds an opaque vial in a closet. Iv #2 opens it up and finds coke> Admissible? No.  Cops have a right to be in the closet because they are looking for bloody clothes. The vial will NOT be admissible because it is not rx to believe they will find bloody clothes in an opaque vial. Plain view will NOT apply. While searching the bathroom, Iv sees negatives on the co unter. He holds them up to the light and sees that they are kiddie porn. Admissible? No.  This will NOT be admissible because it is not reasonable to look at negatives when searching for a gun or bloody clothes. In the pantry, Iv finds a clear vial with a white powdery substance in it next to a syringe. Admissible? Yes.  This WILL be admissible because there is PC to believe it is contraband and the cops can rx be in the pantry to look for bloodstained clothes. E. Consent In order for consent to be valid, it must be of free and unconstrained choice. The use of police deception does not destroy the voluntariness of consent per se UNLESS the deception is SO fundamentally unfair as to violate due process. The consenter has a right to put limits on what the police can search. 1. Factors to Consider if Consent is Valid a. Age; a 4 yr old vs. a 17 yr old b. Personality; timid factor, intelligence, etc. c. Knowledge of the right to refuse d. Environment: custodial or noncustodial; It is much more difficult to obtain a valid consent from someone in custody 2. Reasonable Belief of Cop that Consent has been Given If the cop believes the person has consented and the belief is reasonable (objective), then the search wil be sustained regardless of actual consent. Hypo: Rash of rapes in neighborhood. Cop runs a computer check of sex offenders within three miles of rape and comes up with D. Cop goes to D’s house and asks if he can search his house for articles belonging to the victims of the crimes. D says OK. Consent? Yes, and any items taken will be admissible. Hypo: Same scenario except that D is not bright and almost passes out upon seeing the cop. Consent? Probably NOT b/c D cannot make a free and unrestrained choice. 11 Hypo: Same scenario except cop lies to D by saying he has a search warrant. Consent? NO. Hypo: D makes a false report to the police that his car has been stolen. The cops are on to D. They request his keys to drive the car to the station when they find it. They find the car and use the keys to open the trunk where they discover marijuana. Consent? Probably NOT, b/c the consent was only to drive the car and not to search the trunk. Hypo: Cops ask D if they can enter his house and search for a rifle used in a homicide. He says yes. Cops open a medicine cabinet and find marijuana. Consent? NO, b/c D gave consent to search for a rifle and they will not find a rifle in a medicine cabinet. F. Request for Counsel Consent given in custody subsequent to a request for counsel can only be valid if the one in custody retracts the request for counsel and waives his right to counsel. Govt. has the burden of proof. G. Common Authority If there are co-tenants to a dwelling, one tenant can only give consent to areas where he has sole control or there exists common authority. Hypo: Four bedroom house rented by four people who each have own rooms.  Each roommate can give consent to search all the common areas, i.e. living room, kitchen, etc. They can also give consent to search their own rooms.  They cannot, as a general rule, give consent to the other people’s rooms.  There is an exception to the rule if they are allowed permission to be in the room. For example, if one roommate does all the laundry and goes into everyone’s room to get it, he will prob. Be able to give consent to search those rooms. Hypo: Co-tenant present at house give consent to search. Police are already aware that the other tenant does not give consent.  Consent will probably only be valid for the common areas. RULE: Spouse can give consent to every part of the house.  Analysis is very fact sensitive H. EXIGENT CIRCUMSTANCES The 4th Amendment does not require the police to delay in the course of an investigation if to do so would endanger the lives of the police or others.  As soon as the exigent circumstances are no longer present, the 4 th Amendment is reinstated and the cops will need a search warrant. 1. Four Types of Exigent Circumstances that Allow Entry and Search a. Hot Pursuit When the police are engaged in a pursuit of the suspect, there is no need for knock and announce.  In the course of a search for a suspect, the cops can search the house for weapons if it is prior to or contemporaneous to the arrest of the suspect. Destruction of Evidence If there is evidence in the process of being destroyed (not the likelihood of it being destroyed). Cops can enter and search and seize if there is a probability that evidence is being destroyed. Limited Protective Sweep (Buie) A protective sweep is permitted if during an in-house search a cop possesses a reasonable belief that others in the house could pose a danger to the police. (based on cop saftey) PC to Believe there is Imminent Danger to Human Life If the police have a rx belief that there is an imminent danger to human life they may enter and search w/out a warrant (i.e. searching OJ’s house). Hypo: 1. Within minutes of an armed robbery, police arrive at a home where the suspect reportedly fled. They kick down the door and fan out. An officer opens a drawer in the kitchen and finds a gun. Admissible? Yes, b/c officers are allowed to search for weapons when in HOT PURSUIT 2. Other cop runs in the bathroom and finds a pot plant. He seizes it and notices the water is running in the toilet. He opens the flush tank and finds a shotgun. b. c. d. 12 Admissible? Yes, the pot is in PLAIN VIEW and will com in b/c the cop’s prior entry was justified. The gun comes in b/c it was rx to look for a weapon there. 3. Officers locate the suspect in a bedroom. They arrest him and contemporaneous with the arrest they search the bed and find crystal meth. Admissible? Yes, drugs come in either through a CHIMEL radius analysis or through HOT PURSUIT b/c the arrest was contemporaneous. 4. After they beat suspect and drag him out of the house, cops go back in the house and searches the suspect’s closet and finds a jacket described at the scene. Admissible? NO, b/c there is no longer an exigent circumstance to justify the warrantless entry and search. Hypo: Facts are the same as above but the house turns out to be empty. Admissible? As long as the cops had a rx belief that the exigent circumstances were present to justify a warrantless entry then the search will be valid. 2. Segura Rule: If the cops have PC that there is contraband in the premises and the likelihood that the evidence will be destroyed, the cops have the right to enter and freeze the premises until they can get a search warrant. The cop must have a good faith belief that he can get a valid warrant. Hypo: Officers have an arrest warrant for D. They observe him complete a huge drug transaction on his front lawn. Arrest him on the lawn. D’s wife is inside. They see her and have PC to believe there are drugs in the house. They break down the door and search and seize drugs. Admissible? NO, no exigency to allow the police to enter w/out a warrant. Mere fact that she was in the house is not enough to create PC that evidence was being destroyed. Same scenario except cops hear the toilet flushing over and over again.  Now there is sufficient PC to believe that evidence is being destroyed so the cops may enter w/out a warrant. Same scenario except wife refuses to let them in  Cops can kick in the door and freeze the premises until they get a search warrant Same scenario and cops kick down the door and freeze the action. Other cops go to get a search warrant and the cop left behind sees a bag of coke on D’s TV. He seizes the cocaine. Other cops were unable to get a search warrant.  As long as the cop had a good faith belief that they could get a valid warrant, the coke will be admissible under plain view because that good faith belief justified the entry. 3. End of Exigency Once the exignecy expires, the 4th Amendment comes back and a warrant is neeeded. Hypo: D attempted to rape 15 yr old. SWAT team comes to D’s house and long negotiations begin. D surrenders and cops enter the house for a limited protected sweep. They see guns in plain view but do not seize. They all leave the house. Later, an officer is sent back w/out a warrant to seize the guns. Admissible? NO, b/c the exigency had expired. TRAVEL STOPS AND VEHICHLES Hypo: Principal in parking lot at night, used flashlight to get in, sees marajuana on car seat, can he take it to cops? Principal not proscribed by 4th amendment—won’t exclude evidence For plain view—subsequent to a justifiable prior intrusion—use after in. Katz standard Sighting—is it probable that mj in car, yes PC enough to get into the car? Exception—Vehichle searches 1. Would want a search warrant, but breaks the window 2. If have PC and it is a car, exception to a search warrant 2 reasons for allowing 1. Exigency of car because it is mobile 2. Reduced expectations of privacy for cars  Not same as in house or office 13 Immediate Search of Vehicle with PC 1. If there is PC for contraband in a vehicle, the cop can search anywhere in the vehicle that the contraband might be. The search can be as extensive as would be permitted in a warrant. The search is only limited by the object being searched for; i.e. you could not look in the glove box for a rifle. Bright line test. Hypo: Cop looks into car and sees drugs. Car has 4 flat tires and dusty. Cop can still search the car even if it realistically could not move because it is a bright line test. Later Search with PC 2 If there is PC for a vehicle, the cop can search then or at a later time. The justification is that the cops already have a possessory interest in the car so it is no more intrusive to allow a later searc h.  Bright line test and timing is irrelevant Hypo: Cops stop car robbery, and find handgun under the back seat (ALL applicable theories) 1. Car exception theory: Can search anywhere in car where the instruments might fit, can rip paneling off, doors, upholstry—if the thing we are looking for is small and would fit. 2. Chimel—lunging radius: Within the passenger area of a regular auto, the interior would be in the lunging radius—must be contemporeneous Hypo: Cop sees D sitting in car at 3am, cop asks for ID and D says no, but arrests him and searches car and finds evidence of recent robbery Admissible by any theory? NO, only if ordinance then could make custodial arrest and go through Chimel and take what is in lunging radius.  Simply because in a car when arrested doesn’t necessarily create PC to search a car—must show a connection between that car and evidence of the crime  Must be independent PC to search the car Hypo: Suspect stopped for speeding. Cop opens the door and looks for Vehicle Identification Number, brushes off papers and while head inside of the door sees butt of gun in car. Do cops have right to look at VIN number for speeding ticket? YES, Ct. looked to Oliver and open field —by putting papers over the VIN can create reasonable expectation of privacy as to your VIN? NO, cops can look at VIN Was what the cop did reasonable? YES, plain view—elements below 1. subsequent to a justifiable prior intrusion (using Oliver to get past the intrustion) 2. In a place where the cop had a right to be 3. Come upon evidence for which there is PC 3. * Whren v. US pg 64 Facts: Cops stop car because it didn’t signal and sped. When cop makes stop makes a seizure (Mendenhall—did these Ds feel like they were not free to ignore the police presence and go on about their business) a. Have a non-custodial arrest (merely an infraction)—must sight and release (no Robinson and Chimel applicable here) b. Cops only had PC to make non-custodial arrest, PC arose post seizure c. Means anyone can be stopped at anytime for infraction—if then PC develops during the stop, then admissible.—not going to make cops turn a blind eye to contraband d. RULE (pretextual stops): If PC arises during a legit seizure, then have PC to search the car (can make custodial arrest of passenger, and Chimel kicks in). Hypo: Knowles v. Iowa—once cops stopped car for any reason could search the car. Said it was too far. Inventory Search (*Opperman Rule)—don’t need PC if it is a legit inventory search 4. A warrantless inventory incident to the caretaking function is rx if it is done pursuant to pre-approved police policy (to limit the discretion of the cop). Cop can do anything (container, etc.). Cop has burden of showing it was rx. The policy goals of allowing this search are: 1. Protect the owner’s property 2. Protect police from false claims 3. Protect police from danger Anything discovered during a rx inventory search is admissible. Hypo: Cops have arrest warrant for D and pretty sure he has pot in trunk, don’t have enough PC to get a search warrant for his car. Wait for him to get into his car before arresting him. Arrest him and during a routine inventory they come across pot in trunk. 14 Admissible? Probably NOT admissible because clear abuse of the Opperman rule.  What is difference between inventory and auto exception? Hypo (Bertine): DD and found cocaine in trunk, (outside of Chimel) Get D out of car and run field sobriety test—and custodial arrest, can probably go back to Chimel radius at the point the cop made contact with D. Was the inventory a mere pretext for a search? Container in Vheicle If there is PC of contraband in car, then cops can search anything in the car, including containers. Containers do not automatically require a warrant to open. Acevedo Rule If there is PC for just a container in the vehicle, there is no requirement for a warrant to open the container in the vehicle. The auto exception extends to the container. To search the entire car, however, there must be PC for the entire car. If there is only PC for a container, the cops can only search those areas in the car that the container could be. Once the container is found, the search must end. Anything in plain view that is seen before the container is found is admissible. Review: 1. 2. 3. 4. 5. 6. Vehicle Rule: simply without a warrant police are permitted to search all areas of the car where the PC contraband might be found (trunk, glove box, etc) where the thing looked for can fit. Know Opperman—once police acting pursuant to established inventoried plan can search car and all containers therein Acevedo—look and see what you have PC to look for (container) Chimel still applies—custodial arrest, all applicable theories When auto arrest talk about all applicable theories ***You can use Chimel to get in the car, and if you find drugs, you can then use the car exceptions to search the rest of the car or trunk since you have to think there are more drugs in the car.*** MISCELLANEOUS SEARCHES  Does small business owner have an expectation of privacy? Yes, Katz exists in the workplace  Reduced expectation of privacy Camara Warrant 1. Warrant that a public official, other than a law enforcement officer, can get without requirement of PC to enter premises for inspections, etc. The occupant can request that the official get the warrant before letting him i n.  Can require govt to get a search warrant, but search warrant doesn’t require PC (gutless search warrant)—needs no affidavit  Want businesses to be safe and healthy  Reasoning—warrant sets out the notice requirement to the searchee as to how far the govt can go. Heavily regulated business 2. Such as the alcohol industry, do not even have the right to request a Camara warrant. Waive all 4 th amendment rights  Auto parts  Sporting goods stores  Cigarette sellers  Govt. justification—implicitly consenting to authorities that if this is your business, you are going to be heavily regulated Airport Sensors 3. When a person sets off the airport metal detector, it does not automatically give PC or even rx suspicion for person to be either arrested or detained. Person free to turn and walk out School Officials—lower standard than cops 5. If officials are acting in a regulatory capacity and enforcing the law and the rules, they are acting like cops and are subject to the 4th. However, school officials do not need to get a warrant to enforce school regulations. PC is not required but there must be rx suspicion. *New Jersey v. TLO Facts: Girl smoking in the bathroom. VP takes her to the office and takes cigarettes out of her purse, then finds marajuana. Drugs were admissible because VP had rx suspicion to continue his search even though couldn’t get search warrant. a. VP will be treated more like a police officer (applies to all civil and criminal authorities b. Will hold him to police officer standards c. 4th amendment does apply on the school grounds to non-police agents d. Private school grounds no expectation of privacy (can do whatever they want), this is public school case. 15 e. f. Want to balance the efficient and safe administration of the schools, and preserve individual liberties? Reduced the threshhold significantly from PC to rx suspicion. BODILY INTRUSIONS 1. *Schmerber v. California Facts: DD case, guy was in the hospital, took his blood without asking. a. Person has reasonable expectation of privacy to fluids in body—need a warrant b. Can get a warrant for blood or pubic hair, etc. c. Exigent circumstances—is exception to the warrant, must have PC though Schmerber Balancing Test An individ has a rx expectation of privacy to his body. Normally warrants are required for bodily intrustions or searches. To waive the warrant requirement or get the warrant isued, the ct. uses a balancing test between the D’s privacy interest and society’ s interest in obtaining the evidence.  Can’t break into dwelling to get BA level 2. *Rochin v. CA Facts: Cops entered D’s apartment and saw D grab 2 capsules and quickly swallow them. Cops put him in chokehold to try to force the pills out. They then take him to a hospital and have his stomach pumped to retrieve the capsules, which turn out to be morphine. a. The Ct. held the contents of the stomach were NOT admissible because the cop conduct shocked the conscience.  Exigent circumstances exception not applicable because the cop activity shocked the conscience FIRST, FIFTH, AND SIXTH AMENTMENT CONSIDERATIONS 5 Amendment A. Prevents one from being compelled to testify against himself through either direct testimony, evidence, or actions. Hypo—Issue: is it a violation of rights to repeat words in a lineup for recognition purposes? th  Is it against persons right against self-incriminatory statements under 5 amendment? Trustworthiness 1. The 5th seeks to prevent information that is compelled by authorities because it is inherently untrustworthy. Physical Characteristics 2. If the physical characteristic is exposed to public view, then there is NO expectation of privacy and it is NOT self-incriminatory. Voice: a. No expectation of privacy to voice because it is exposed to the public. Lineup: b. Can be compelled to stand in a lineup because you have no expectation of privacy to the way you look Blood: c. Person has an expectation of privacy to his/her own blood.  Can get around it through Schmerber balancing test Handwriting: d. NO expectation of privacy to handwriting because you do it every day.  If in a handwritten note the suspect spelled slip “slipp,” the police can compel a suspect to write out the word as it is spelled in the note. However, can’t ask the suspect to spell slip.  Can’t ask to spell particular word because violates expectation of privacy. 5 Amendment test (2 prong) 1. Katz expectation of privacy test (as to the world).  (How does one resolve the fact that another person might be apprised of your most intimate details—the rub with 4th amendment) 2. If there is some non-verbal (subtextual) message being sent by the communicator. Hypo (Subpoena situation)—See 6th Amendment requirements below : Lawyer working in office—prosecutor wants his files, don’t think they need a search warrant (lawyer will be cooperative) and get a subpoena duces tecum. Violation of rights? Has he testified against himself in violation of the 5 th?  YES, Because of implicit comments, are testimonial, and violative of the 5 th amendment—documents excluded  DA’s argument to get them in: fact of the documents without reference as to how authorities came into possession of the documents th th 16   If search warrant other than subpoena—not same concern of them being doctored after-the-fact Rule: The search of one’s office for records, their seizure and introduction into evidence does th not violate the 5 amendment if pursuant to a search warrant based on probable cause—no compulsion to do anything  Different than a subpoena, which requires that businessman to do something, big difference 3. Winston v. Lee pg 718—Search Warrant NOT Good Enough Facts: Bullet in robber and the court wants to compel surgery—at least a search warrant a. Expectation of privacy as to what under his skin—get a warrant b. Is a search warrant good enough? NO  Is some risk as to getting bullet out c. Search warrant not enough if using general anesthesia to get bullet out (heightened risk involved) 1. Heightened risk to the D, and 2. Not absolutely necessary evidence to the case (had an otherwise easy prosecutable case already) d. If couldn’t pros the guy without the bullet—court’s analysis might have been different e. ***Need Super PC*** First Amendment th st B. Ct has held that 4 Amendment protections factor in 1 Amendment considerations. If a warrant is valid, it is valid against all Amendments. (Issue #2 below) 3rd Party rd 1. If PC exists, a 3 party can be issued a search warrant even if they are not involved in the crime. (Issue #1 below) Hypo (*Zurcher v. Stanford Daily): Stanford there was a campus protest that led to attacks on cops. Daily paper ran a story on the protests that included pictures. Police got a search warrant to search the paper’s offices for pictures to be used to identify those who attacked the cops. rd  Ct. held that the interest in solving crime was the same whether an original party or 3 party was subject to the warrant 1. Irrelevant that it is a 3rd party—if they have info, may be culpable 2. 1st Amendment issue—1st Amendment consideration are already embodied in the PC th requirements of the 4 amendment in the search warrant 6 Amendment C. It is not unreasonable to compel the police to use subpoenas duces tecum in seeking documents held by an attorney.  Protects the attorney/client privilage—police can’t rifle through client files like they could with a search warrant  Does not apply to priests, psychologists, etc (don’t have the level of protection as attys).  If the atty. himself is the suspect search warrant must be obtained. REVIEW: 1. Search incident to arrest: a. Robinson—person and things attached to the person once under custodial arrest (as opposed to regular arrest)  Custodial by looking at actions and intention of cops b. Chimel—extends the Robinson rule to the lunging radius—contemporaneous requirement as well  Presume that person still has control over the lunging radius  Can search all containers, spaces, and documents 1. Don’t want cops injured 2. Don’t want destruction 2. Plain view—extention—what cops can do once already inside a. Subsequent to justifiable prior intrusion b. Is cop in place he has a right to be c. Does he believe that is incriminatory or evidence of the crime 3. Consent—question of voluntariness Considerations: a. Age—if old or young harder to consent b. General Environmental factors c. Person in custody—hard time giving consent/ non-custody will be easier d. If fully Informed of right to say no to the police request 4. Exigent Circs a. Hot pursuit—no visual contact always necessary b. Evidence is in process of being destroyed—must have PC and process, NOT possibility or likelihood of destruction  Can freeze the situation or maintain the status quo if likelihood of destruction, pending arrival of a warrant c. Protective sweep—Buie 1. Must believe other person might be around  Cop safety d. PC to believe there is an imminent danger of human life—make good argument on either side 5. Vehicle exception—if you have PC you can go in and look to those place to the thing you have PC about can fit th 17 a. b. c. d. Can be later—no need to be contemporaneous Might have a Chimel problem as well Opperman inventory—make sure cops don’t abuse Containers in vehicle—if don’t have PC for all containers, can only look in ones they do Review Andresson—Attorney case 1. Search Warrant—whatever the police find, if properly executed, will be admissible a. 5th amend  no compulsion to self testify  no untrustworthiness 2. Subpoena (duces tecum)—when produces the document says (somewhat) that the documents are authentic a. Statements being made here that are not being made by Search Warrant b. Compulsion is bad—5th amendment EXCLUSIONARY RULE 3 1. 2. 3. watershed cases in crim pro Katz Mapp—exclusionary rule Miranda Weeks 1914 Rule—whatever discovered by use of unreasonable searches, will not be admissible in cases of federal prosecution Wolf a. Policy as to why won’t make exclusionary rule law for the states—hope states will come to this on their own accord. b. States on their own will adopt some form of the exclusionary rule—court believes c. Weeks rule still stands Exclusionary Rule 1. All evidence obtained by searches or seizures in violation of the Constitution will NOT be admissible in state or fed court. 2. *Mapp v. Ohio Facts: Cops went to D’s home without a warrant to look for evidence of recent bombing. D refused to allow them in. Came back 3 hrs later, lied to D about a warrant, and pushed her around while looking for the paraphernalia. In the course of their search they came across obscene materials, the possession of which D was convicted. a. Ct. for the first time applied the exclusionary rule to the states and declared the obscene materials collected in unreasonable search inadmissible. b. Is there anything in the constitution that says they need to go to the exclusionary rule? NO, no remedy was created in the 4th Amendment  Exclus Rule is a judge made rule—can be modified and/or abolished, it is a remedy to a right Goals and rationale of exclusionary rule 1. Deterrence—this is the main reason (most important)  Police error—by excluding the evidence are slapping the officer, and will be motivated to not do the same thing wrong next time  Have to assume that the cop cares so that they will make the change the next time (huge jump) 2. Judicial integrity  Don’t want to soil the criminal justice system d. Costs of the exclusionary rule 1. Lose evidence—lost prosecution & Reduced prosecutions 2. Political cost 3. Police integrity—are cops motivated to either lie or fudge to keep evidence that should be excluded, from being excluded. 4. Reduced protection of the 4th Amendment—have rights been eroded by working of the exclusionary rule  Abuses of 4th (examples)  Chimel, etc. 5. Has the law, on search and seizure, become more complicated than it needs to be by the existence of the rule  That is why bright line tests (e.g. Robinson, Chimel, vehicle exception, Miranda) were created e. Benefits of exclusionary rule 1. If didn’t have something in place the police might run rampant (i.e. Mapp) 2. If we believe cops are wanting to do it right, are truly deterred by the rule and obey the 4 th Amendment Summary 1. Purpose of exclusionary rule is to deter future police conduct (not a right, a remedy which gives teeth to the 4 th Amendment) 2. Does the exclusionary rule right the wrong? a. No, rule operates into the future, but if we exclude the evidence, it will chastize the cops b. No, cops don’t find out the result of the suppression hearing—against deterrence 3. *United States v. Leon a. Is NO per se exclusion—as was assumed from Mapp v. Ohio above c. 1. 18 b. c. d. Are we fulfilling the purpose of the rule by excluding this case Court cites Hill—even though had the wrong guy, will still bring in evidence because the conduct was reasonable (officer objectively acted reasonably) Michigan v. DeFillippo—evidence comes in when cop conduct reasonable even if law they arrested under later unconstitutional Leon—Police acted pursuant to a magistrate-approved search warrant. It turns out there was NO PC for the warrant and it should not have been issued. The Ct. held the evidence seized was still admissible because the cops did nothing wrong by acting pursuant to a valid search warrant. It would go against the policy goals of the exclusionary rule to NOT allow the evidence. RULE: If reasonable and objective good faith belief on the part of the police, the evidence will NOT be excluded. e. f. g. STANDING TO ASSERT THE EXCLUSIONARY RULE 1. 2.  Standing is an effort by the US Supreme Ct. to limit the scope and application of the exclusionary rule th Standing only talks about the right of individuals to come in and question whether or not a 4 amendment violation took place. th (does not look at whether a 4 amendment violation took place, only who has a right to raise the issue) Must know *Rakas (Katz cast in a different form) A. Standing to Assert the Exclusionary Rule 1. Did D have an expectation of privacy in the area of search (Katz analysis)? OR 2. Did the items he is attempting to suppress directly flow from that original violation (typically violation of 4th amendment rights)? Hypo #1: X’a conversation with Y is illegally tapped. During the course of the conversation X implicates D, who did not participate in the conversation. D have standing? No (element #1), had no expectation of privacy as to conversation that X and Y had Are we fulfilling the goal of the exclusionary rule? No Hypo #2 Illegal arrest of A leads to seizure of narcotics in the home of B and the subsequent arrest of C at another location. Can A suppress dope found at B’s house? Yes (element #2), even though no expection of privacy. Whatever flowed from an illegality is suppressible even though A had no expectation of privacy. Can C suppress dope found in B’s house? No. No expectation of privacy, and nothing from C flowed to B’s house Hypo #3 A gives an illegal confession and in the confession implicates B. May B have standing to exclude the confession of A? No. No expectation of privacy, no violation If beat A with rubber hoses and finally incriminates B. Ever get to point where A would have standing to exclude? No. Hypo #4 A lawful traffic stop, all occupants of the vehicle are ordered out, police search under the seat and find contraband, likewise contraband is located in the glove box and the trunk. Will driver have standing? YES, it is his car and he can assert a rx expectation of privacy. Will passenger have standing? NO, under Rakas, they have no expectation of privacy to someone else’s car and thus their rights cannot be violated by searching the car. Hypo #5: X owns the house. D and Y are visitors. Police arrived with arrest warrant for X, after arresting X, they search D and Y. In Y’s purse, police find contraband. D immediately claims that the contraband is his. Does Y have standing to suppress the contraband? suspicion Yes. Ybarra says can’t search the person—individualized Does D have standing to suppress the contraband? Probably not, claim of ownership does not necessarily create an ownership interest. Hypo #6: D and X were dealers in dope, X kept their dope in his basement. D had never been to X’s house and was not even aware of the location of the dope. On this specific day, X had let D in and they were sitting on the couch. Cops burst in, located dope and D wants to suppress dope as to himself.s 19 Is D going to have standing to even raise the issue? No, D has no expectation of privacy in the other guy’s home.  Owner could exclude  Doesn’t justify the exclusionary rule’s aim of deterrence. Hypo: Man and woman stopped in airport after strapped the heroin to the lady’s inner thigh. Man have expectation of privacy? Yes, in this case, however, it is extremely fact sensitive. Hypo #7: At a suppression hearing, D charged with possession of heroin, is maintaining that he has standing to object because it is his dope, yet if he loses at the suppression hearing and goes to trial, he will want to argue no possession. Can you use the D statement of ownership against him in the actual trial? No, can’t bring it in as substantive evidence. If the D doesn’t ever testify then OK, if the D does testify in opposition to his preexisting statement. Can use his prior statement to impeach him.  Testimony at suppression hearings is not admissible at subsequent trial as substantive evidence. STANDING CONT.    Helps courts limit the scope of the exclusionary rule Standing never goes to the substantive issue—simply is the tool by which we determine whether or not this particular has the right to come in and cry 4th Amedment foul Person has standing if that person had expectation of privacy, OR if the evidence seized flowed from an illegality that violated that specific D’s rights FRUIT OF THE POISONED TREE 1. Rule: Any evidence obtained from illegal cop action is inadmissible. Once evidence is deemed illegal, all evidence that stems from it is inadmissible as well. The test is usually, “but for” the illegality, the evidence would not have been obtained. 2. 3 ways to get around the Exclusionary Rule—EXCEPTIONS a. Independent Source Exception—if there is a lawful independent source that is apart from the illegal activity that gives PC, then the evidence can be seized. In a warrant, the ct. can just cross out the bad info. b. Inevitable Discovery Exception—if law enforcement can show by a preponderance of the evidence that it would have obtained the evidence without the benefit of illegally obtained evidence then it will be admissible even if it is a fruit of the poisonous tree. Nix v. Williams (Christian burial speech) D surrendered to the police for the abduction of a little girl. Meanwhile, a massive organized search was underway to find her body. While driving with the D, the police officer, aware that D considered himself very religious, gave him a speech about how sad it would be that the little girl would not get a proper Christian burial. He then told police the location of her body. Facts showed that the search party would have found her body in about six hours. 1) Is the body of the girl admissible? Yes, b/c it inevitably would have been discovered (prosecution has the burden of proof—by preponderance of the evidence). 2) Is the fact that the D lead police to girl’s body admissible? No, illegally obtained and was fruit of the poisoned tree, no search warrant exceptions apply. c. Attenuating Circumstances—if the connection between the illegality and the evidence becomes so attenuated as to dissipate the taint, the information can come in. 1) Factors: a) Miranda warning b) Temporal proximity between the arrest and the incriminatory statement (or other taint)  The more time or distance, the greater the dissipation of the taint c) Presence of other intervening factors d) Purpose and flagrancy of police illegality Hypo #1: Agents unlawfully enter D’s office and seize incriminating tapes of D’s Blackmailing activity. Based on the info gained from the tapes, the agents secure a search warrant for D’s house and there seize more incriminating evidence Are the tapes proper evidence? No, they are fruit of the poison tree. Is the search warrant valid? No. Hypo #2: 20 In the previous hypo, what if the info contained on the tapes had been garnered simultaneously from Witness who was in no manner related to the initial break-in. The subsequent search warrant was then based on both the information on the tapes and from the Witness. Is the search warrant valid? Yes, as long as the witness by himself would have created PC for the warrant then it is valid and evidence obtained is admissible. Hypo #3: (See Christian burial speech above—Nix v. Williams) Hypo #4 (Wong Sun): Agents entered a dwelling without PC and arrested A, who then accuses B of having sold narcotics. Narcotics were subsequently seized from B, who then implicated C, who was also arrested illegally. Several days later, after having been released (own recognizance), C voluntarily makes an oral confession. Is C’s confession admissible? NO. If apply a simple “but for” analysis then is fruit of the poisoned tree and inadmissible. Hypo #5: D is illegally arrested, the police hoping that something might turn up. D is Mirandized and made incriminating statements about two hours after arrest. Did the Miranda warning break the causal chain and thereby purge the illegal arrest from the confession (attenuation)? NO, go thru the factors under attenuation.  “But for” the arrest, we don’t have the confession.  Miranda by itself is NOT enough to attenuate the circumstances Hypo #6: As a direct result of an illegal search, the police discovered the existance of a witness who can give testimony against D. The witness then testifies at D’s trial. Should the testimony of the live witness be excluded?  “But for” we wouldn’t have found out who this witness is—fruit of the poison tree Exceptions to fruit:  Inevitable discovery? Probably, but need more facts  Independent source? NO  Attenuation of the taint? NO Hypo #7: V is robbed and immediately notified police and gave a full description of D. D iwas illegally taken into custody several days later, he was photo-graphed and released. V picked D’s picture out from a group of pictures. D was re-arrested. At the D’s trial, V makes an in-court ID. Is evidence of the mug line-up admissible? NO, direct fruit of the poisoned tree, is directly from the initial arrest—suppressible. Is the in-court ID valid? Yes, is so attenuated. Can’t suppress the D’s body.  Is the ability of the witness to make the in court ID in any way affected by looking at the mug shots? Yes. “but for” applied and is fruit of the poisoned tree. Is the evidence of the mug line-up admissible? NO, directly from the illegal arrest. Hypo #8: Invalid confession made by D. Six months later, D again confessed after he was told that his second confession could be used against him. Is the second confession admissible? To determine if the second confession is admissible, look to what made the first confession inadmissible.  Look at the nature of the original violation:  If it is a 5th amendment violation (D wants to terminate the interrogation)—look at four attenuating factors and work through the analysis. th  If 6 amendment violation (denial of the right of counsel) then: 1. Confessor must initiate the contact—come forward and volunteer 2. Fresh waiver of Miranda  If neither of these occur then the second confession is fruit of the first confession (poisoned) RIGHT TO COUNSEL AND OTHER AIDS: 6TH AMENDMENT  About money A. *Gideon Rule: If you are an indigent and you are charged with a felony, you will be appointed a lawyer to be assured a fair trial. Applies to state and federal cts.  County decides who is qualified as an indigent.  Incorporated 6th amendment to indigents 21 1. *Gideon v. Wainwright D committed a misdemeanor. Ct. refused to appoint him counsel even though he was indigent. D lost. Ct. held there is a fundamental right to counsel. Lawyers are necessities, not luxuries. B. *Argersinger Rule: No indigent who seeks a lawyer (judge must deny indigent a lawyer) can go to jail on a misdameanor UNLESS represented by counsel at trial.  It seems to be illogical because the judge has to initially determine from the complaint if the D is to be incarcerated. st  Indigents have a right to counsel before they go to jail—must give them a lawyer 1 C. Right to Aid on Appeal: 1. Transcripts: a. Griffin v. Illinios: Transcripts (expensive)—have absolute right to get transcript of the trial if you are an indigent (to afford them right to bring appeal)  Only applies to felonies b. Any impediment to an appeal will be waived for an indigent. There should be no fiscal roadblocks to appeal. c. Mayer extends Griffin to all materials. 2. Appellate Counsel st a. *Douglas: absolute right to appeal all felony cases, 1 appeal as a matter of right, if you are an indigent, can appeal in all cases (right to appeal if felony or misdameanor)  Basically you have the right to an appellate lawyer on the first appeal only st st b. Ross: Everything beyond the 1 appeal is DISCRETIONARY—no right to counsel beyond the 1 appeal  No right to appoint counsel on discretionary appeal c. State will pay for death penalty cases all the way up through the court D. Right to Other Aids: D must have a fair opportunity to make his defense. The “basic tools” must be provided. What are “basic tools” for the indigent? 1. Factors in balancing test: a. Benefit to Defendant (subjective) b. Benefit to the state c. Probable value to the proceedings (how important would it be to get a fair result)—objective  Above rule does NOT apply for discretionary appeals PRO SE DEFENSE, JOINT REPRESENTAITON, AND COUNSEL OF CHOICE A. Pro Se Defense: A Defendant has an absolute right to represent himself (Faretta). 1. *Faretta Waiver: In order for a D to represent himself, there must be a knowing and intelligent waiver a. Factors to Look at for a Knowing and Intelligent Waiver: 1. Age 2. Physical and mental condition 3. Education and experience (experience in the court setting if any) 4. Circumstances surrounding the case b. Burden of Proof  The prosecution must show by a clear and convincing standard that the Faretta waiver was sufficient (by a preponderance you must show that there was an effective knowing and intelligent Faretta waiver). c. Faretta D claiming ineffective Assistance of counsel:  Once the D goes Faretta, he cannot use the ineffective assistance of counsel defense. d. Disruptive D:  If the Faretta D becomes disruptive, the judge can withdraw the waiver. e. Judicial Intervention:  Court can intervene at any time during the trial where deemed necessary  If 3 weeks into the trial something happens that requires the judge to appoint counsel for Faretta D, then will probably be a new trial. 1. Stand By Counsel: Judge will always appoint standby counsel to sit through the trial in case something happens that causes the judge to appoint counsel.  Faretta Error: Watch for any interference by standby counsel with the D a. If contact with the standby initiated by the Faretta D then that is OK 22 b. 2. However, if the standby interferes, or initiates contact then NOT OK Marsden Motion: Motion by D to appoint a different lawyer to D because first lawyer is not competent MULTIPLE REPRESENTATION (joint representation) B. Joint Representation Joint representation by defense counsel typically benefits the prosecution.  As a general rule: Each D should have his own attorney. 1. Conflict of Interest: In a case where an atty represents multiple indigent Ds and claims there is a conflict of interest, a duty is created for the trial judge to make an inquiry to determine if there is a conflict of interest. There is no sua sponte obligation.  Is good practice for judge to make inquiry of potential conflict issues even by a D represented by private counsel. Actual Conflict: If D wants to challenge a conviction b/c of a conflict of interest by his atty, D must show that actual conflict existed. If D can show a conflict, he per se gets a new trial. The conflict does not have to be proven to be harmful. 2. INDIGENT’S RIGHT TO COUNSEL CHOICE 1. If you are an indigent and you want a lawyer, court will pick lawyer as long as the lawyer is competent. (absolute right of court to choose) a. When an indigent can show objective reasons for a counsel of choice it would be an abuse of discretion to not appoint him. EFFECTIVE ASSISTANCE OF COUNSEL A. Strickland Test—what necessary to prove ineffective assistance of counsel 1. Counsel’s conduct must fall below an objective standard of rx.  Was this error a tactic or strategy that went to the very heart of the case. 2. Counsel’s conduct must have prejudiced the D enough as to deny D a fair trial. (Or was it only a harmless error?)  There must be a rx probability that the outcome would have been different. Recap of right to counsel: 1. Distinction between retained counsel or appointed counsel a. Retained—can hire atty anywhere (other than small claims) b. Appointed—indigent  If it is a felony and poor and ask for lawyer then get one  If it is misdameanor then don’t necessarily get an atty, but can’t be put into jail 2. Anytime see monetary impediment to getting appeal (Griffin error) a. Imposing a monetary impediment to the indigent in order to get on appeal (court must waive fees i.e., transcript fees) 3. Indigent has absolute right to counsel as to the first appeal, after, no right to counsel 4. Ack: tools to afford the indigent at trial a. Benefit to Defendant (subjective) b. Benefit to the state c. Probable value to the proceedings (how important would it be to get a fair result)—objective 5. Faretta: right to represent self a. If it was a good waiver (if aware of all the downsides to self-representation) b. Look for issues of interference of Faretta waiver (if interference by stand-by counsel—Feretta error, if yes then probably have right to a new trial) 6. Multiple representation—don’t do it a. Obligation to make inquiry if conflict of interest in mult representation PRETRIAL IDENTIFICATION 1. 2. 3. A. 5th amendment problem 6th amendment problem Due Process problem *Wade (watershed case): The Post-indictment lineup is a critical stage of the prosecution and thus the accused is entitled to counsel. The rationale is that there is a grave danger of prejudice, intentional or not, that cannot be recreated at trial. BRIGHT LINE TEST 1. 2. Post Indictment After the D has been charged by the grand jury or has been arraigned; post initiation. Problems at Post Indictment If there are problems at post indictment lineup, then it is per se excludable. 23 B. Admissibility of In Court ID after a Bad Lineup When a bad lineup has occurred, the prosecution has to show that the in court ID was made independently. Factors: 1. Lapse of time between criminal act and lineup. 2. Opportunity for the victim to observe the D during the actual crime. 3. Existence of any discrepancy between pre lineup decryption and D’s actual features Pre-indictment line-ups:  No right to a lawyer at pre-indictment lineups because it is not a critical stage (doesn’t meet the Wade timeline)—must look below to DUE PROCESS C. Due Process Test It is a violation of due process if under a consideration of the totality of circumstances the confrontation was unnecessarily suggestive and conductive to irreparably mistaken identification.  Applies to pre-indictment lineups Stovall v. Deno—“show up” Facts: stab wounds, caught a suspect, witness will die soon, bring D (black) in “showup” and witness IDs D in hospital, then witness survives and Ids him again. th a. 5 amendment problem? No b. 6th amendment problem? No, haven’t indicted or arraigned yet (Wade) c. How to knock this out? th 1. Due Process Clause of 14 a. Is this suggestive? Yes, but no prohibition on suggestive if it was “necessarily” suggestive. Last Monday, Supreme Court decided that police can search the purse of passenger (didn’t search the passe nger’s person) in vehicle because that person has no expectation of privacy to those items (containers) that they own if the cops have PC  Chimel only applies if have PC to make custodial rest of passenger 1.  PRETRIAL IDENTIFICATION CONT. Mental Checklist th 1. 5 amendment problems? Most part, no (not testimonial) th 2. 6 amendment problemS? Yes, look at timing of the lineup a. Show up—(hospital) one person comes in b. Lineup—many people 3. Wade—if post-indictment then it is per se excludable (critical stage, lawyer wasn’t there, it is out) a. If pre-indictment, then doesn’t matter is not out 4. Due Process Test—can bring this argument at any time (pre or post indictment) a. even if post indictment and represented by lawyer and don’t have Wade doctrine, always allowed to make Due Pro cess argument Due Process: are we more concerned about Due Process or Reliability? 1. Reliability a. Can something be suggestive but reliable? Yes. To determine reliability, b. Factors 1) Opportunity for the witness to view the suspect at the time of the offense 2) Witness’s degree of attention 3) Accuracy of prior ID 4) Level of certainty at the time of ID (when brought in how sure were they?) 5) Temporal proximity between the crime and confrontation Admissibility of In Court ID after a bad lineup When a bad lineup has occurred, the prosecution has to show that the in court ID was made independently. Photo lineups—is the Wade timeline going to apply to a photo lineup? a. Is the presence of the lawyer critical for photo lineup? No b. Ash: A photo lineup is NOT a critical stage, lawyer is not necessary c. If confronted with photo lineup  Wade won’t work  Due process is your argument as a D 2. 3. CONFESSIONS AND ADMISSIONS A. Confessions—come up in pre-trial motion 1. Comes in during the prosecution’s case in chief 2. Problems with confession: a. Trustworthiness—primary concern 24 b. Police tactics—looking at reprehensible police behavior  Part goes to deterrence  Goes to the integrity of the system Three Approaches to Admissibility: 1. Due Process/ Voluntariness/ Police Conduct If confession is truly voluntary then it should be admissible. Look at the totality of the circumstances. Problems with confession under Due Process: 1) Trustworthiness—primary concern 2) Police tactics—looking at reprehensible police behavior a. Spano v. New York (1959) Facts: Cops grill D for hours. D requests his atty and is denied (pre-Miranda). Cops get D’s friend who is a cop to coerce him to confess. Post-indictment. One of these events alone would probably not be enough for Due Process violation, but under a totality of the circumstances approach it is a violation. th 1) Confession inadmissible under a totality of the circumstances approach—violates the 14 amendment Hypo: D has severe injuries and is on pain medication, in hospital, in critical condition, not completely coherent, cops come in and get waiver of Miranda, D waives and confesses Is the confession admissible? No, make Due Process totality argument as to waiver In Miranda must get affirmative response for waiver 1. Do you understand what read to you? Yes 2. Do you wish to waive rights? Yes, then can admit confession 2) Due Process argument can still be made as to waiver—totality of the circumstances (as in Hypo above). Hypo: D with IQ of 66, can he waive Miranda? No, can’t trust that this person made a knowing and intelligent waiver (or segment of society). Due Process problem 2. 6 Amendment Right to Counsel Approach (Massiah Rule) Any post indictment statement (at a critical stage) deliberately elicited by the police in the absence of counsel is inadmissible. Have an absolute right to a lawyer.  vThis is a BRIGHT LINE TEST. a. Knowing Exploitation: A knowing exploitation by the state of an opportunity to confront the accused w/out counsel is a th 6 Amendment violation.  To reconcile Massiah up through the Hypos below: If the Police in any way set it up (slight bit of involvement) would be an exploitation. th b. *Massiah v. United States—only applies post-initiation (post indictment) Facts: D arraigned and released on bail for selling bad substances that are ruining the youth of America. D’s accomplice agreed to cooperate with police and bugged an incriminating conversation they had. This is an exploitation of the situation. 1) Due Process/ Totality of the circumstances approach: would due process have kept that statement out A) Can we trust it? Yes. B) Did the police conduct knock it out? No. C) Comes in under due process test. 2) Not excluded under Miranda—no custodial interrogation 3) 6th amendment—draw from Wade “critical stage” issue (if presence of a lawyer would have made a difference): Have absolute right to an atty after indictment. Hypo: D under indictment came to co-D to discuss. Co-D goes to the police and they set a wire on the D. Admissible? NO. Knowing exploitation rule above Hypo: What if post initiation D volunteers statement to jailhouse snitch, and snitch comes to the cops and the cops want him to testify? Admissible? Yes, there is NO police exploitation.  If the cops send him back in to get more info it might become exploitation. Brewer: Christian Burial Speech—post initiation, lawyer tells him to be quiet, then get guy in police car, and cop makes the Christian Burial Speech. 1) Can D relinquish his 6th amendment rights post-initiation? Yes. 2) Waiver of 6th amendment is within Miranda 3) Didn’t Mirandize this D b. 25 Summary of above: A) Due Process is still there—Massiah (post-initiation) a. doesn’t help with pre initiation cases b. Vast majority is voluntariness approach c. Escobedo (trying to bring 6th amendment to pre-initiation situations) Where an investigation is no longer a general inquiry but instead focuses on a particular suspect and that suspect has been taken into custody, D must have counsel have now reached a critical stage.  Miranda has basically swallowed Escobedo. 3. Miranda Approach—5 Amendment th a. Malloy v. Hogan—5 Amendment reaches beyond the court b. Miranda v. Arizona Facts: D drove around to older car, picked up gal, tried to rape, couldn’t . . . cops arrest him. Taken into custody, have interrogation Rule: 1) Miranda only applies in custodial interrogations. Accused must be informed of rights in clear and unequivocal terms. th th 2) Any statement made after the person invokes the 5 or 6 , must give fresh warnings to resume questioning. 3) Must be an express waiver of the rights (can’t be inferred from silence) a. Only applies once Miranda has been read b. Look at the voluntariness/ totality of the circumstances/ Due Process approach to see if he has waived. EXAM: 1. Talk about Miranda anytime the D opens his mouth—even if not incriminatory on its face. 2. Any time have a Q and A, if have non-narrative approach—must take each individ statement by the accused and push it through Miranda. Some may not be custodial interrogation, some might later be a custodial interrogation. c. *Oregon v. Mathiason—Seminal Custody case Facts: Burglary. Cop called D and asked him to come in to talk. He locked his office door. D was told he was not under arrest. Cop lied and said they found his fingerprints at the scene. D confessed. Ct. held that D did not need to be read his Miranda rights b/c he was not in custody.  Police can’t lie about Miranda waiver stage, but can lie in general (i.e. fingerprints) Rule: Accused is in custody if accused is deprived of his freedom of action in any significant way (objective).  Use totality of the circumstances to find custody. 4. Interrogation for Miranda Purposes—if there is a question pending RULE: Any express questioning and conduct by law enforcement reasonably likely to elicit an incriminating response from THIS suspect.  Objective standard to cop that he would know it would be reasonably likely to elicit an incriminating response  Subjective to the suspect as to whether he was interrogated. a. *Rhode Island v. Innis D arrest for blowing head off taxi driver with a shotgun. He is being driven back to the police station and the police in the front seat comment to each other that it would be a shame if a handicapped child from the school nearby finds the shotgun used in the crime. D tells police where the gun is located. Ct. held that the police conversation was not rx likely to elicit an incriminating response. CONTRAST WITH: b. Brewer: Christian burial speech—(post-indictment) (supra) was an example of police action resulting in an interrogation.  Cop knew that accused was religious.  Body’s admissibility under inevitable discovery  Fact that he lead them to evidence, inadmissible, fruit of the bad confession Hypo: DD stop Field sobriety tests admissible? Answer below in Penn. v. Muniz Penn. v. Muniz Exception to Miranda to those questions or responses which are about routine booking information  Things that are an observation by the cop of a physical characteristic that all can see every day—will never be a problem  Only testimonial statements will be the fruit of Miranda  Testimonial if the suspect is asked to comm. an express or implied assertion of fact or belief. 1) Cop asks how old he would have been on his sixth birthday? Yes, bad.  Is testimonial th c. 26 Rule: Testimonial if suspect is asked to comment on an express or implied assertion of fact or belief (mental process is testimonial). d. Illinois v. Perkins Guy in jail & undercover cop asks questions—custodial interrogation Do responses to the questions come in? RULE: Doesn’t fulfill the purpose for Miranda rule if not a coercive environment, therefore will not exclude the statements. (if post-initiation would be Massiah problem. Big Scope of Miranda:  Worried about coercion and trustworthiness, reliability. Tool to use for every single pre-initiation anayisis  Doesn’t matter what the suspect says—whatever comes from the mouth of the accused needs to be analyzed under Miranda 1) Suspect in custody a. If no custody—whatever comes from the mouth of the accused is admissible b. If only have interr or only have custody and no interr, not Miranda situation 2) Interrogation—questions or statements made by the police officer reasonably likely to elicit incriminating statements from the accused a. No interr—Innis b. Interr—Brewer  If find the girls body on day one as result of the bad Miranda—able to get good forensic examination  If would have gotten there anyway, but forensics may have been lost—Defense lawyer could try to suppress the forensics as fruit of Miranda A. Follow up Questions: RULE: Follow up questions are deemed to be part of the voluntariness of the D’s statement, but if the follow up was designed to elicit facts that D did not intend to divulge, then it is seen as an interrogation. Hypo: D walks up to cop and says “I killed him.” Cop says “You killed who?” D answers, “I killed Chris.” Is the follow up question admissible? Yes, not in custody. Interrogation or question pending? No, see what person intended to divulge in initial question. Close call, if the cop knew what D intended upon 1st statement then could be in custody. Hypo (Quarles): Cops catch suspect in rape case—see holster, cop asks where it is, and D answers “right here.” Miranda problem? Yes Fruit of the poison tree? No, inevitable discovery rule.  Chimel as well.  EXIGENT CIRCUMSTANCE RULE UNDER MIRANDA: Under emergency circs where people’s lives or safety may be in danger, cops can dispense w/ Miranda warnings after arresting a suspect and questions necessary to allay their fears. Hypo: Questioning—D not Mirandized. He then says he doesn’t want to talk. Different cop comes in, diff crime, hours later—D confesses Does 2nd crime come in? Yes RULE:  Look to see how invoke Miranda the 1st time around.  If simply 5th amendment invocation use fruit of the poison tree analysis  If invoking 6th amendment—almost impossible to get a subsequent confession To do so D must 1) Suspect himself must initiate the further communication 2) Even after suspect says he wants to talk, must be freshly Mirandized. B. Subsequent Confessions: th 1. Invoking 5 Post-Miranda if D invokes the 5th it is easier to get the subsequent confession. If enough time passes and D is reMirandized then the subsequent confession can come in.  Go thru fruit of the poisonous tree analysis Hypo: Suspect confronted by police (with arrest warrant) Not Mirandized. He is questioned and confesses invokes the 5th. Later he is Mirandized and confesses again and is told his first confession was obtained illegally. 1) Look at 1st confession was voluntary (even though violative of Miranda) 2) D will try to say that no attenuation of the taint. nd 3) 2 statement in—attenuation of the taint. Hypo:  27 How long is Miranda waiver good for temporally? Reasonable amount of time Hypo: D says to cops D was never in the house—cops violate Miranda. At trial D says D was in the house, but not the shooter. Will we allow prosecutor to impeach the suspect for the statement he made when taken in disregard of Miranda rules? Yes Waiver: If have cop trickery then no waiver  Cops bear the burden of proof that we have valid waiver—must show by a preponderance of the evidence that valid waiver.  Cops can lie everywhere else, but not while eliciting a waiver. 28