GARRITY: Cop fixed tickets, 5th, fired SLOCHOWER: Are you or have you ever been a communist? You’re fired. This is a violation. GARDNER: Can’t fire someone for refusing to sign away their 5th Amendment rights across the board. Innis: Anything said by the police that might be interrogation will be treated as interrogation, EXCEPT: Administrative Q's, Physical Characteristics KASTIGAR: Immunity must grant equal if not greater protection than would be awarded to someone in order to compel their testimony (Use Immunity) No “Poisonous Fruit” here because it was originally conceived as a judge-made rule (ignore DICKERSON). Miranda: functions primarily in policedominated environments. Thus, does not apply in court, in the grand jury Generally, you cannot use a Defedant's 5th Amendment silence against him TUCKER, aff’d by PATANE Tucker – derivative evidence allowed (testimony from a witness discovered through a Miranda violation) Patane – derivative evidence was an illegally kept firearm MALOY/ DOYLE: You cannot use a suspect’s silence against him at trial, because he might be creating a lie, but he might simply just be invoking his right to remain silent. ELSTAD & SIEBERT 1 conf. taken in violation of, 2 conf. in accordance with Miranda Burden on P to demonstrate that: The Questionings were different, the 2 st was not the product of the 1 . Could be time, place, cop questioning, different questions, how continuous it seemed. st Did the cops tell D 1 one didn’t count? nd st nd Miranda A Judgemade rule Harris: If a statement is taken in violation of Miranda, it's out for the case-in-chief, but okay to impeach the D's credibility / testimony. Perkins: inmate confesses to an undercover cop. Miranda protects folks from compulsion, not from deception! Remember: “Custody” is from POV of D. One inmate bragging to another is not in custody. -- PERKINS What if Perkins had already been indicted? Then it’s a Massiah case. FLETCHER: If you do not give Miranda, you can use silence to impeach. Except for QUARLES THE PUBLIC SAFETY EXCEPTION Also applies to safety of the cops. Miranda rights must be given each time the police want to talk to a D., in full – PATANE, waived off warnings… There are two legs to Miranda: (1) custody (from POV of D -- BERKEMER, restriction of deprivation of liberties – MATHIASON said Police HQ not always custody), and (2) interrogation (any words or actions by the police that the police should reasonably know will elicit an inculpatory statement from the defendant - INNIS) MIRANDA: Informs defendants of their 5th and 6th Amendment rights (Right to silence, Right to counsel) 1) Custody, 2) Interrogation You have the right to remain silent. Anything you say can & will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you by the court. Does the defendant have a legal right to counsel that is not an attorney? Can counsel be a parent, psychologist, or doctor? - FAIR v. MICHAEL C. – No. The attorney fills a unique legal role in our society. Was the defendant in custody? - MATHIASON: police HQ was not custody, because D was free to leave at any time. - Discussed in class: Your couch in the living room might be custody, if police tell you to sit down and not move. - CONNELLY: If you walk up to an officer in the middle of the street, you are not in custody. Has the defendant waived their rights? - If so, the waiver must be made KNOWINGLY and INTELLIGENTLY in order to have affect. - Once the right to counsel is invoked, no questioning can take place without counsel… even at a later date & time. o No one other than the D can invoke the right to counsel – not family, not the attorney (see MORAN) What about derivative evidence taken after a violation of Miranda rights? - If you get a confession that violates MIRANDA, get a second confession that is in accordance with MIRANDA. The prosecution will have to prove that the 2nd confession was not a product of the first (SIEBERT, and to a lesser extent ELSTAD). They can do this by showing that it took place at another time, in another place, that the questioner was different, that the topics covered were different, or, of course, if the police out-and-out told you that the first confession was inadmissible at court and wouldn’t be held against you. - Miranda is a judge made rule, and as such any derivative evidence is perfectly admissible (see TUCKER, PATANE) Can a confession in violation of MIRANDA be used against you at trial? - It can be used to impeach credibility. As such… take the statement in violation of Miranda in order to keep the defendant off of the stand. If you “Plead the 5th”, can it be held against you? - YES – Think GARRITY, where your refusal to answer is in effect an answer. - NO – Think SLOCHOWER. “Firing you” for refusal to answer a series of questions that would have varying consequences is a violation of your rights. - NO – Think GARDNER. They can’t discipline you for refusing to sign away your 5th Amendment rights before answering a series of questions. THE PUBLIC SAFETY EXCEPTION: - If the police feel that either the police or the public may be in danger, they can question a suspect before giving him the MIRANDA rights. Any evidence or testimony that comes out of this questioning is admissible at trial. MIRANDA (Cont’d) Subpoena Duces Tecum – “Come and Bring It With You” This is for the Grand Jury ANDRESON: The 5th Amendment does not protect you from evidence that you’d created. If it did, e-mails would be out; tax records; finger prints; any physical evidence that you created going through with your crime. The only thing the 5th Amendment protects you from is the compulsion to self-incriminate. GENERALLY: If the police know about Existence & Possession they can go after it with a search warrant. Thus, it’s IN as evidence if they subpoena it. HOWEVER: HUBBELL: Subpoena Duces Tecum goes out to Hubbell, he shows up to the Grand Jury empty-handed and invokes his 5th Amendment right to silence. This applies to any evidence that the prosecutor wanted him to produce, too, because: 1) Bringing the evidence with him would demonstrate EXISTENCE of the evidence. 2) Bringing the evidence with him would demonstrate POSSESSION of the evidence. 3) Bringing the evidence with him would AUTHENTICATE the evidence. - If the prosecutor knows exactly what he’s looking for, he’s going to get a search warrant and go for it on other routes. If he is trying to compel you to bring it with you, it’s either because: o He doesn’t know if it exists o He doesn’t know what it is o He doesn’t know where it is o He doesn’t know if you have it - Can they use it against someone else? Of course! Otherwise, why would they compel you to bring it in the first place? Because MIRANDA was a judge-made rule, it was applied prospectively. In JOHNSON v NJ, a 3 prong test to decide if a case should be applied prospectively: 1. Reliance Were the states justified in relying on the old rule? A: Supreme Court says, “we gave them Haines, so they were acting on our rule.” Effect What would be the effect of applying this rule retroactively? A: A lot of bad men would get a get-out-of-jail-free-card. 3. Purpose If the purpose of the Miranda rule is to enforce the Constitution as it applies to the states, we must apply it retroactively. But it is not a constitutional rule, so we don’t have to apply it retroactively. The BLOCKBURGER Test: Are the elements of the two crimes related in such a way, that they are the same crime? Murder & Manslaughter, as opposed to Burglary & Murder Moran: A knowing and intelligent waiver of counsel requires only that you know the 2nd half of "Miranda". Only D has the right to counsel. Under COBB: Charge him with lesser crime first, get D away from his attorney, and then talk about murder. Massiah: The 6th applies when criminal proceedings begin KUHLMAN – D was indicted, sitting in jail –informant was told just to listen. Informant’s testimony allowed at trial b/c listening is not the same as interrogating. COBB: The right to counsel is chargespecific. Massiah: Applies whenever a suspect is approached by an agent of the state. Does not apply to a non-agent who later rats you out. There are two legs to MASSIAH: (1) the commencement of formal criminal proceedings (indictment, arraignment, or information), and (2) interrogation (any words or actions by the police that the police should reasonably know will elicit an inculpatory statement from the defendant - INNIS) Remember: MASSIAH protects a constitutional rule. As such, any evidence obtained in violation of MASSIAH is tainted (it’s “fruit of the poisonous tree”) and as such it is inadmissible for any purpose at trial. EXCEPT: in cases which can be tried at both the state and federal level… In that case, the Feds can use evidence obtained illegally by the state. DUE PROCESS Coercion is bad. Confessions produced by coercion are generally unreliable – and the methods that bring them about are repulsive. BROWN – physically beating a confession out of someone SPANO – subjecting defendant to a laundry list coercive techniques (keeping him up all night long, multiple questioners, lying to him, 14 hours, etc) - SPANO, HAINES v. WASHINGTON – The Totality of the Circumstances - This is the test to determine “if the will of the defendant was overborne.” What overbears a defendant’s will? Any of the following might be included, but none will do it on their own: Promises made by the police, if the defendant cooperates Threats made by the police, unless the defendant cooperates (perhaps threat of more serious charges) If the police lie (we have your fingerprints!) If the defendant is intoxicated and the police use it to their advantage NOTE: Intoxication is the exception, it may be enough by itself – best strategy for police? Wait for suspect to sober up. CONNELLY – This was not a violation of Due Process. The voice’s in Connelly’s head were beyond the reach or control of the police, and as such the compulsion to confess was beyond the reach and control of the police. NOTE: the court ruled that the state might exclude this as an evidentiary rule, but it wasn’t excluded under any Constitutional Rules. HUBBELL: If the D.A. goes on a fishing expedition with a subpoena duces tecum, any evidence that you produce is compelled (and is out against you, except in front of the Grand Jury). SEARCH & SEIZURE (THE 4TH AMENDMENT) To get a valid search warrant: - An officer must approach the independent magistrate and request the search warrant. - THE AGUILAR/SPINNELI RULE: 1) There must be evidence enough for probable cause that specific items are in a specific place, that the police need to search. 2) If the information comes from an informant (which it most often does): a. Is the informant reliable? Why do we believe the informant? b. Most often the answer to this question is: Because the informant has given us reliable information in the past. LEON: So long as the officers are acting in good faith (they are relying on what they believe is a valid search warrant), evidence seized is admissible. THE TEST: Could any reasonably objective police officer believe that this evidence is sufficient for probable cause? - It’s a very broad test. - As such, it doesn’t matter what the officer believes – just what any reasonable officer might believe. EXCEPTIONS - Situations where the officer is not acting in “Good Faith” – where he is dishonest, reckless, or no reasonable officer could find probable cause. RAKAS: The car was searched. This is an example of the Automobile exception. OLSON: Defendant had a legitimate expectation of privacy as an overnight guest in someone else’s house! But, CARTER: a daytime visitor does not have an expectation of privacy, nor does a visitor to a commercial property. Exclusions to the 4th Amendment Protection Against Illegal Search and Seizure. HUDSON: Knock & Announce Rule goes out the window when there’s a danger to someone (hostage, police), or a reasonable suspicion that evidence would be destroyed. SCHMERVER: Emergency Doctrine (alcohol in his blood would go away) The “Other Emergency Exception”: Any vehicle that can leave can be searched to prevent destruction of ev. They cannot move vehicle to search it, but can search whatever is in the car (includes passengers, glove and trunk). Police can search you either to: 1) Protect themselves from harm 2) To prevent you from destroying evidence. The Plain View Exception The Emergency Exception Once you are arrested... The police also do an inventory search once you’re arrested – inventories what you pick up when you get back out of jail. “Hey… where’s my Picasso?” BELTON: Cops can search the car if D is in or has recently been in the vehicle (recently is vague). Can search anywhere D could reach (lunge & grab theory) but cannot open the glove or trunk. Exclusions from the 4th Amendment Automobiles TERRY: Stop & Frisk TERRI: If the police have reason to believe that you are in the process of committing or are about to commit a crime, they can stop and frisk you to protect the public. Whatever they find must feel like contraband. It’s just a pat-down, to find weapons. Anything that they seize during the pat-down has to reasonably feel like it’s a weapon. Police can put a beeper on your car. Argument for: you lose all expectation of privacy once you start driving in public. Argument against: Really, someone watching you only knows what direction you’re going in – not your destination. The Lunge & Grab Rule Hot Pursuit THE EXCLUSIONARY RULE (4th Amendment) WEEKS: Evidence that is obtained illegally cannot be used against the defendant in a Federal case. MAPP: Evidence that is obtained illegally cannot be used against the defendant in a State case. Keep in mind that the 4th Amendment only protects you from illegal search & seizure by STATE AGENTS, just as the 5th Amendment only protects out from coercion by state agents. If Professor Dobbyn decides to beat the hell out of you and steal your stuff – that’s a separate issue altogether. MAPP is a judge-made rule, and the evidentiary rules that come out of it mirror those of MIRANDA. The police break into David’s apartment without a warrant and find his marijuana. Can they use it to prove guilt at trial? - No, because of MAPP – that’s the rule that comes out of MAPP. Can the police use David’s marijuana to impeach his testimony, if he says he’s never possessed marijuana? - Yes. WALDER: The evidence can be used to impeach his testimony. - WALDER mirrors HARRIS. The police can use illegally seized evidence at the sentencing hearing and at parole revocation hearings, just as anti-MIRANDA evidence can be used. COLLANDRA: The prosecutor can use illegally seized evidence in front of the Grand Jury, to get an indictment. BUT – THERE IS ONE NOTABLE EXCEPTION BETWEEN MIRANDA AND MAPP. - The police can use derivative evidence from a MIRANDA violation. - The police cannot use derivative evidence from a MAPP violation. See – WONG SUN. This is fruit of the poisonous tree. Where do you have an expectation of privacy – That is to say, where do the 4th Amendment protections apply? A: Wherever you have a reasonable expectation of privacy. Protection From The Police, At Home YES – Expectation of Privacy - In Your Own Home - As a overnight guest - In a phone booth - When you take reasonable precaution to ensure you are not heard NO Expectation of Privacy - In a public place - as a daytime guest - visiting a commercial property - when you fail to take reasonable precautions to ensure that no one hears - when you are committing or about to commit a crime - once you have been arrested A reasonable expectation of property at a home is subject to, well, reason. The police can listen at an open window or door, or even at a closed window or door if they can hear you without using electronic devices. You do not have to protect yourself against bugs or parabolic microphones. The police must have a warrant to use these devices. Remember – important lesson from KATZ: The 4th Amendment protects people, not places. The gambler inside the phone both is protected, even if the bug used doesn’t breach the phone booth. Whatever a person takes reasonable precautions to keep secret, the 4th Amendment strives to protect.
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