1 I. Introduction BASIC PRINCIPLES A. Criminal Case? 1. usually, follow legislative definition (court could overcome legislative label?) 2. unless clearest evidence of an extremely punitive purpose or effect 3. look to factors such as complexity of court-imposed penalty, degree of court supervision B. Who gets the benefit on new decisions? = RETROACTIVITY 1. All D's with non-final judgments (still on direct appeal) 2. No D's seeking habeas review unless the new rule (collateral appeal) a. puts some primary, individual conduct outside the power of law-making or b. is essential to gaining accurate convictions (rule must have been VERY misapplied) 3. However, when a decision only applies settled precedent, it is not a new rule and is therefore applicable to D seeking collateral review a. incentive is for a habeas to define his case as not new b. new rule = one that is not dictated by existing precedent C. Who gets hurt by a decision hurting D's rights? 1. unlike with benefits, this type of new rule will apply to all habeas petitioners D. Steps in Criminal Process 1. Arrest (usually) -based on police or civilian observation 2. Investigative techniques (before and after) interrogation, witness, fingerprinting, searches and seizures, evidence gathering 3. Perp. brought to station, sometimes released in field, sometimes at station 4. COURT a. first appearance -tell arrest charges, set conditions of pre-trial release, arraigned on complaint, bail set E. Police Discretion have power to arrest OR NOT to stop, OR NOT, assuming requisite thresholds met... F. Sources of Law: state law, fed. const., bill of rights state may provide MORE protection than fed const., but NOT LESS = new federalism... also statutes, FRCr.Pro, regulations, supervisory powers, common law doctrine G. INCORPORATION DOCTRINE slowly, most provisions of the Bill of Rights have been made binding on states, but not ALL!!! Black: 14th Amd. made ALL applicable vs. Harlan and Frankfurter: case by case applicability: "selective incorporation" 2 Fourth AMENDMENT.... II. What is a Search/What is a Seizure? Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." NB: This is only a threshold determination to see whether some activity implicates the 4th Amend. Even if it does, it may still be constitutional. tension between reasonableness and warrant, which is prevailing standard? A. Reasonable Expectation Test --REOPS!!! 1. Person must manifest subjective privacy interest & 2. Society must recognize that interest as reasonable Katz v. US: there are places you can't go, have a REOP in phone booth conversation a. absence of antecedent justification by DNM b. nomenclature shift: from CPAs to REOPs B. Difference between search and seizure 1. search implicates privacy interest 2. seizure implicates possessory interest NB: this can occur even outside the context of a criminal investigation C. Applying REOP test 1. Open fields a. only house and curtilage are protectected extent of curtilage is difficult, case by case determination b. even if cops trespass, may still be no search may be limited to observation searches, and not digging c. REOP created when homeowner refuses entry if cops ask or demand... 2. Access by Members of Public if general public could obain some information, then it is open to police as well. Court reads this like assumption of risk a. Consensual electronic surveillance if one party consents, there is no REOP New federalism: some states don't allow this either... Not REASONABLE: conversation could be repeated... b. Financial records Court found no REOP since banks are already involved; like consensual (bank consents) c. pen registers recording of phone number called violates no REOP, as long as there is no capability of recording the conversations 3 d. electronic pagers person calling a pager has no REOP person from whom pager taken has a privacy interest in its memory, however e. cordless telephones no REOP since these commonly leak. However, a REOP might develop if technology improves them f. Trash no REOP if left out on curb, or once taken by truck; abandoment argument Court found that possibility of people rummaging through this invalidated any expectation but, cops cannot go onto property to look through trash even if shredded, can't just underestimate police resourcefulness... g. public areas can't look through stuff of a homeless person unless he left it on private prop cops can look into public bathroom stalls h. aerial surveillance test = is photo taken from a place public has a right to be even if very difficult and never happens, that is sufficient ladders, tiptoes, helpicopters = OK Policy Ques: should we have more protection from state than neighbors... 3. Investigations uncovering only illegal activity a. canine sniffs no search since can only reveal criminal activity usually, more is needed for PC than just an alerted dog if luggage is held while cops get dog, a seizure may take place b. chemical testing for drugs tests that will only reveal presence of contraband is not a search seizure may be implicated if part of item is taken or destroyed tests that reveal more, like urine, are usually searches also, method of this search is more intrusive c. thermal detection devices circuits are split on these some liken heat to refuse and the trash cases; "abandoned heat" others worry about the extent of information revealed; private nature of area intruded upon... 4. Sensory enhancement devices a.beepers 1. putting one inside an item transferred to an individual is neither a search nor a seizure 4 2. monitoring a beeper to obtain information otherwise available is not a search such as following a car monitoring it while it is within private property is a search b. Other using devices generally available to the public, even if extremely expensive, is not a search using satellites may be binoculars 5. Jails, prison cells, and convicts a. convicts have almost no privacy interest in their effects and cell b. they have a diminished interest in privacy of their person, so some level of suspicion must be needed for that 6. Public schools and employees a. school kids have a diminished REOP need reasonable suspicion to search b. public employees' offices can be searched for workplace violation upon a low level of suspicion Court seems to give government same right in this context as a private employer III. Warrant v Reasonableness 1. Functions of the warrant requirement a. protect people by requiring proof before grant of a warrant b. protects against tyranny of overexcited police c. records what a cop knows before a search so that the PC determination is made solely from that d. limits the search to specific places e. magistrate will be more reliable than cops; can refuse OR limit f. magistrates may be more likely to refuse a search even when some suspicion is present; checks on police power g. possession of a warrant gives a search greater legitimacy h. requirement reminds police of supremacy of law and their limits i. requires OATH j. demonstrates fact-based interest in conducting investigation 2. Johnson v. US: need a warrant: presumption of unreasonableness without warrant... "per se" rule that warrants required for searches... WARRANT above REASONABLENESS, unless exigency... IV. Obtaining a Search Warrant: Demonstrating P/C SPINELLI PRONGS: 1. Credibility: truth-telling: VERACITY 5 2. Basis of Knowledge then 3: are they at threshold BOTH NEEDED GATES TEST fair probability that evidence will be found of a crime (less than 50%) still use veracity and basis of knowledge, but a lot of one may make up for lack in another... under this standard, only a little corroboration will shore up a weak application A. Using tips to get warrants 1. Cop must merely make a showing of probable criminal activity in order to get a warrant a. citizen informants are presumed to be truthful b. cops are presumed to be truthful 2. Anonymous and/or regular informants present difficulties a. Pieces of evidence should be looked at as a whole and all reasonable inferences drawn from that many insubstantial bits can add up to a whole greater than their parts 3. Appellate Review a. PC determination made by a magistrate needs only "substantial basis" for concluding that a search would uncover evidence of wrongdoing b. in appeal of GUILT = DEFERENTIAL: "no Rble jury could find guilty based on record, juries can asses credibility of witnesses... = correction of errors need more than just paper: cops act in good faith in relying on magistrate who finds p/c and here: NOT guilt, just search b. What standard for a cop's determination? c. Standard of Review for WARRANTLESS search? ct. says: de novo (supposedly) "reviewing court should take care both to rev. findings of fact only for CLEAR ERROR and to give weight to findings of judges" = isn't that deferential? 4. Other notes a. Collective knowledge -as long as any cop on the force has probable cause, another can perform the search or arrest even if that knowledge has not been imparted to him b. Mistakes -cops are allowed to be wrong about a suspicion without penalty, as long as they have PC c. Probable cause to arrest -need a fair suspicion that a particular person has committed a crime d. Staleness -at some point after information is gained, it becomes stale 6 and useless. This point will vary greatly depending on the circumstances. e. First Amendment concerns -Court does nto think these affect determination of PC; some states disagree f. P/C allows for reasonable error (two apartments instead of one...) 5. CORROBORATION: can confirm or boost credibility or veracity by looking, ect. also, police can corroborate only innocent details, may be able to make leap of faith, secure 9 facts, may jump to 10th illegal one... 6. Trends POST-GATES: a. Gates probably unnecessary; given detail and corroboratoin b. some state still adhere to Aguillar Spinelli, some waiver still start with 2 prongs... B. Probable Cause, Specificity and Reasonableness 1. The Things that Can be Seized Warden v. Hayden: expanded issuance of warrants prior: only fruits and instrumentalities here: also "mere evidence" 2. Warrant needs Rble cause to believe the specific things are in a specific place a. depends on type of crime, nature of item sought, D's opportunity to move them, etc b. sometimes automatically D's home; sometimes not 3. Non-suspect premises may be searched (Zurcher) a. that way, no protection if hide an item elsewhere b. Congress passed an act limiting this ability of the police to search the premises of disseminators of information except in special circumstances c. Other ways to get: subpeona, court order (could get warrant if you can prove this would be futile...) subpeona NOT under 4th Am., no invasion to property, only surrender, not S&S (may hit 5th am.) 4. Place to be searched must be described with reasonable particularity FUNCTION: * operates as control on cops discretion * establishes a specific record of p/s as to location * no warrant as blank check to search a. cops need to take care to try and be as specific as possible but, if cannot limit search through reasonable pre-investigation, it will still be valid b. wrong address will not necessarily defeat the warrant as long as there is not a reasonable probability that another premises may be searched & executing officer can locate premises with reasonable effort c. if warrant permits premises to be searched, cops have lots of discretion 7 can generally search all buildings within the curtilage can search a locked guest's room test varies, but can generally search anyone on the premises with a sufficient nexus to them 5. Subject of an arrest warrant needs to be described with some particularity as well a. unclear about how much b. fact that arresting officer knows who target is is not sufficient 6. Description of things to be seized must be fairly particular a. inclusion of a catch-all phrase after a valid list will not defear whole warrant, though (Andresen v. MD) b. if cops seize some stuff invalidly under a catch-all phrase, stuff seized pursuant to descriptive parts of list will be OK 7. Reasonableness -even with PC, this should still be taken into accont to limit the scope of a search either because of big effects on the subject or others a. Examples: ordering surgery to remove a bullett for evidence b. searches that might pose unreasonable hardships on a 3rd party 8. Anticipatory warrants are fine as long as the triggering event is relatively specific a. courts find this better than forcing cops to go to some scene and await an exigency 9. Details of the Warrant date and address Contents: p. 124 C. Executing the Warrant Method of execution is always an issue 1. Statute allows forcible entry if such is refused after cops announce their presence 2. Knock and Announce seems to be constitutionally required absent exigent circumstances a. D needs to put on a fairly substantial prima facie case in order to raise that issue 3. If do not need to break in order to enter (eg if a door is open) then no need to announce 4. Reasonable fear that evidence will be destroyed will allow the omission of an announcement a. some jurisdictions have established a blanket rule for all narcotics cases 5. Most warrants specify a time within which they must be executed a. leave exact timing up to cops b. but, if they delay, they risk staleness 6. Cops may not remain on premises once a search is concluded and they must avoid unnecessary damage to premises 8 7. Cops need to leave once object of search is found a. this is difficult to determine when they are looking for "all narcotics" or any nonspecific item b. courts allow wide latitude to cops 8. Although a person must be served with a copy of the warrant, this need not be done at the time of the search 9. Courts can order unwilling third parties to assist in searches a. e.g. installing taps on phones 10. Cops can also use willing thrid parties on searches to help a. however, if 3rd party searches for their own reasons or exceeds the scope of the intended search. then it can be found unreasonable D. The Screening Magistrate 1. Magistrate must be detached and neutral a. cannot receive bonuses for approving warrants b. cannot be an executive or law enforcement officer c. cannot assist in search d. must read the applications individually this is difficult to prove 2. Legal training a. this is not required b. clerks can issue both arrest and search warrants V. Arrests in Public and in the Home QUESTIONS TO ASK: Was there a search? Was there a seizure? Was there an ENTRY? What should be consequences of an illegal entry? A. Standards ALI Model Code: Sec. 120.1 Arrest w/out a Warrant: Authority when: Rble cause than they committed crime, AND, believe they won't be apprehended unless immediately, may cause injury, OR done in officer's presence... 1. Probable Cause is always required for a custodial arrest 2. any crime (misdemeanor or felony) may be arrested if done in cop's presence; felonies may also be arrested when done outside of cop's presence 3. Suspect need be given no chance to turn himself in a. large amount of police discretion in this area 4. An arrest made in public needs no warrant WHEN a. would burden police unnecessarily b. hurt investigations 9 5. Amount of force used should be examined based on various factors a. only deadly force when suspected crime is deadly or there is fear of harm to public b. look at severity of crime, whether D is actively resisting arrest, chance of harm to others, chance of further crime 6. U.S. v. Watson: if cop has P/C but no warrant, they CAN arrest in public reaffirmed common law, didn't expand 4th Am., even when they had time... B. Review of a warrantless arrest (when do they get to try and show no P/C??) 1. Within 48 hours after a warrentless arrest, absent exigent circumstnaces, D is entitled to a determination of PC by a magistrate (Gerstein v. Pugh, County of Riverside v. McLaughlin) a. sometimes, D may have rights violated if no hearing held even in less time but this is heavy burden for a D to meet b. After 48 hrs, state has burden of proving some weighty reason for not having a quicker determination c. This rule prevents police from doing additional investigation to make an otherwise unlawful arrest OK; fear of bootstrapping 2. This only applies to those Ds state wants to keep in prison a. If willing to let someone go, then no need of determination 3. Remedy for a violation here is unclear, since usually evidence made during excessive custody is allowed in at trial 4. NOTE: P/C is non-adversarial, determinations made ex parte C. Arrests in the Home PAYTON Rule: home gets special protections = warrant needed to enter someone's home to arrest... , REOP in home... 1. Unlike public arrests, cops need a warrant to enter someone's home for an arrest no search warrant required 2. TO get warrant for home: Cops need only a reasonable belief that D may be at home, not probable cause as to that fact fairly weak showing, lower than search... 3. Line between home and public is fuzzy a. rules vary for doorway arrests. some courts lay down fast rules one way or the other to avoid tough factual questions b. person rightfully having a hotel room is considered at home c. common areas of apartment buildings are generally public d. Homeless persons: split: no home vs. REOP 4. At a 3rd party's home (Steagald v. US) a. an arrest warrant is certainly needed to arrest someone here b. also, a search warrant is required in order to protect the 3rd party's 10 privacy rights therefore, only that 3rd party has standing to contest the illegal entry c. courts have not extended an expectation of privacy to either overnight or temporary visitors arrested in a 3rd party's house without an arrest warrent, although the owner in each case could object. 5. Note: rationale for this is that cop entry without a warrant is an illegal search. the arrest itself remains valid as long as cops have PC. EXAMPLE: NY v.Harris: cops go in w/out warrant to Harris' apartment, violating Payton, get 3 pieces of evidence: 1. plain view search 2. confession from Harris IN apartment 3. take Harris from apartment to lock-up and get 2nd confession ? Illegal Search or Illegal Arrest? Which admitted? 2nd confession: probably ok, would have been able to get him after he stepped out door plain view search: most directly exploitative of illegal entry 1st confession: pretty directly from Payton violation... D. STANDING: evidence found on A's premises can be used against B: B had no REOP, no violation to HIM, no standing to assert rights; if he argues HIS residence, then Payton E. Material Witnesses 1. Under both state and federal law, cops have ability to arrest witnesses so that testimony will later be available. Need to show a. testimony will be material & b. testimony may not be available through subpoena 2. there seems to be no requirement of duration or compensation VI. Stop and Frisk A. STOP and FRISK Established Terry v. Ohio: attempt to regulate most common police-citizen encounter: the "stop" made intrusions legal w/out P/C BALANCING: degree of intervention by the state and the gov't interest with private interest infringed on... 1. lowered quatum of belief to "reasonable suspicion" that some criminal activity is going on (futher expanded by Adams v. Williams to possessory offenses) first significant departure down from PC 2. The stop is a limited seizure of the person 3. the pat-down is a limited search, and separately requires a reasonable belief that the person is armed and dangerous (Harlan's concurrence: right to frisk should be immediate if at all, if crime is one of violence...) 11 this is justified as a limited search for weapons, to insure lack of danger to the cop = Stop and Frisk as separate EVENTS, requiring separate justification 4. Cops may use force to effectuate a Terry stop, such as tackling, in order to ask their questions 5. This is outside warrant clause, and governed by reasonableness inquiry; more than a stop needs P/C = arrest... 6. Bright-line rules (PA v. Mimms) a. cops may always force someone stopped for a traffic ticket to get out of car extending Terry to a situation where D is not dangerous b. if cops cannot see VIN number from outside car, they can always get in to check it (NY v. Class) DEOP in a car; no REOP in VIN c. cops can always require an owner of searched premises to stick around in order to prevent destruction or theft of evidence (Mi. v. Summers) d. emphasis on OFFICER SAFETY for frisk... B. When Does a Seizure occur? "Stop" or "Encounter" 1. This is important distinction since cops do not need any degree of suspicion to go up and ask questions of someone, even to search items or person with consent from person (Fl. v. Royer). But, reasonable suspicion is needed to detain a person for questions 2. Mendenhall Test = would a reasonable (innocent) person feel they were free to leave? a. not a subjective test b. look at lots of factors such as whether person is told they can leave, whether cops takes any items, whether they are brought to a secluded area, weapons showin, lots of cops, etc. c. test has been refined so that it presupposes what a "reasonable, innocent person" would think d. Totality of the circumstances test... 3. Factory sweeps by INS people have been allowed without any suspicion, even when agents posted at doors, some people are hauled off, and weapons are showing (INS. v. Delgado) 4. slightly different test when cop approaches sedentary people (like on a bus) since they are not trying to leave (Fl v. Bostick) gives more freedom to cop to seem overbearing TEST here = would the Rble innocent person feel free to leave... 5. In order for a seizure to occur, cops must at least intend to detain someone. Even if ultimate means of it happening is somewhat different at end, it cannot be accidental 6. Exact point of seizure only occurs once: (Hodari) 12 a. cop makes a show of authority b. person actually submits to cop's authority so, a person running away from a cop when cop has no suspicion has not been seized and thus no 4th Amend protections for evidence gained by cop but any show of force by cop = stop = Rble suspicion... if you throw something away while running = get it... SUMMARY p. 189!!! C. What is Reasonable Suspicion? 1. Source of Information a. less corroboration is requried for a stop than for a search or arrest b. Court has allowed verification of details from an anonymous tip to create reasonable suspicion (Al. v. White) * some part of information corroborated should be information generally unavilable to the general public, even if its unsuspicious activity in itself * like direction of travel some car might take c. can get R/S based on facts with entirely innocent possible explanation (Trullo) * if in fact have aggregate give rise to R/S 2. Quantum of Suspicion; Sufficiency... a. Two part test * cop look at totality of circumstances and draw any inferences available to trained eye * that assessment must yeld a particularized suspicion that particular individual is engaged in wrongdoing b. This is definitely something less than probable cause. Perhaps its "possible cause" (less than 50% certainly...) c. Court's seem to place a lot of reliance on cop's experience, knowledge of a neighborhood, and even commonness of name found lacking where sounds somewhat made up, or cops use repeated stories d. Suspicicion is allowed to be of a crime committed far in the past * some wish it only to be for ongoing activities e. Use of race as a suspicious circumstance is somewhat tricky (City of St. Paul v. Uber, and US v. Weaver) * it cannot be the only factor for a stop * looks like it can be taken into account if supported by other factors f. courier "profiles" are allowed to be used as long as those characteristics are not given undue weight, but viewed through particular experience of cop 13 3. Limited searchs and Terry stops a. Even if cop has reasonable suspicion that some evidence or contraband may be on person of D, only a pat-down for weapons is allowed (Minnesota v. Dickerson: fear of safety is still goal!): should STOP if you know it's not a weapon! but could frisk lead to P/C, then search on exigency? theoretically yes (plain touch...) b. Courts have applied the suspicion needed of dangerousness differently. Some have exaggerated the need for a particularized suspicion of weapon present; others allow police to be over-cautious in almost all instances c. Cops are allowed a protective search: to search area for weapons from which D could get weapons at time of stop or immediately thereafter. (Mi. v. Long, not in NY) * cars * containers nearby clothing? locked glove-compartment, companion of suspect? touchstone is REASONABLENESS... d. Court has rejected allowing an automatic Terry stop and frisk of a person at site of area to be searched (i.e. of bar), when there was no connection to the place or R/S of person (Ybarra v. Il) * some jurisdictions have allowed an automatic frisk of the companion of an arrested person, although this has not been treated by SC e. Protective Sweep of areas around a D being arrested is allowed upon cops reasonable suspicion that an individual posing danger to cops might be there. (MD v. Buie) * this, in effect, allows a plain view search of rooms in house around a D * sometimes, if arrest made outside, a sweep can be done inside 4. Boundary Line btwn STOP and ARREST a. Cops may not verify their suspicions which allowed a Terry stop by means that approach an arrest * if this additional investigation is needed, then PC is required * however, some courts have allowed a D to be brought to a witness for ID, if it is a short trip and there is no rigorous questioning (People v. Hicks) b. Some investigation is permissible * OK = shorter procedures like asking for ID, doing canine sniffs, computer checks, probably fingerprinting * BAD = long drunk tests, searches for evidence (this = new 4th Am. event!!) 14 c. Once cop dispels his suspicion, he should end the stop * But, if conduct during stop gives rise to more suspicions, then it may continue d. Any bringing of a person to the station will constitute an arrest * even for something small like fingerprinting * but, if the same thing done in the field, it is OK e. No absolute time limit. But, an unduly long period of time will make it an arrest (US v. Sharpe) very fuzzy distinction f. Cops can use some force and show of weapons to effectuate a stop this is evaluated depending on the circumstances if unreasonable, will be a civil rights violation 5. Detention of Property under Terry a. Cops can delay mail to pursue some investigation as long as act efficiently and diligently b. If hold luggage, however, more stringent standards since a traveller will not leave without that and there is then an implication of one's liberty interest 6. Limited Searches for Evidence under Terry a. Even an extremely limited search for evidence under Terry will not be allowed. A quantum of suspicion greater than reasonable must be found. b. Some circuits have differed and allowed some searches if minimally intrusive, in likening to the VIN number cases VII. Search Incident to Arrest A. SPATIAL Limitations Chimel v. CA: AIC (area under immediate control) 1. Cops can search an area within a person's grab area upon making a legitimate arrest a. worried about safety of cops and destruction of evidence b. do not want ot extend it to the whole room since no legit 4th Amend reason 2. If cop allows an arrested D to walk along, cop can continually search anything within D's grasp in order to protect himself a. seemingly, this may be OK even if the movement is required by the officer b. but requirement cannot be simply to gain an extended search; usually some other concern needs to be present 3. Protective sweep after an arrest can only be done with fear of harm to cops; not enough to have fear of destruction of evidence 4. Sequence of search and arrest are not important a. So, if search slightly precedes the actual arrest, it does not matter 15 b. But, search cannot be used to gain PC for arrest 5. TEMPORAL: Usually, search needs to be done close to the time of the arrest a. but, Court seems to allow a search of things upon D at any time after an arrest b. try to be immediate 6. Cops can search this even after D is safely in custody a. otherewise, would create counter-incentive for cops to search first, and then effectively place in custody later b. cops cannot put something into the grab area to gain a search B. Searches of the Person incident to Arrest US v. Robinson: always get a search of a person incident to arrest... 1. Cops can make a full search of a person incident to any arrest a. No need for search for evidence b. No need for fear of weapons 2. Some fear that this leaves too much discretion to a cop of when to make an arrest in order to get this search a. after traffic stops, for instance, it seems unwarranted 3. Fuzzy lines with searches of containers on a person a. usually, the searches are OK if done at the time of arrest but not later but, usually not when it is sealed or locked b. Also, very intrusive searches will need some greater degree of particularized suspicion. C. As Applied to Automobiles 1. Really, two bright line rules: a. entire passenger compartment of a car is within arrestee's grab area. (always AIC, NY v. Belton) b. cop can open any containers within that grab area * no rationale here, since no fear of danger to cops or of destruction of evidence 2. When making a legitimate arrest of a D in a car, cop may search entire passenger compartment and open any containers there a. Court tried to lay down a bright-line rule, but still lots of questions b. Leaves questions about duration, damage to car, applying to other vehicles, etc. c. search of glove compartment generally OK d. Cannot damage car 3. Search is allowed even when D is away from car, as long as he was in it relatively recently 4. Some confusion as to why opening of containers here is OK, but not when done after a search away from a car a. most courts have applied this rationale to overrule the Court's earlier limitation on searches incident to arrest that forbade the opening of closed 16 containers.; D. Pretextual Stops and Arrests 1. There is a great danger that by allowing these bright-line rules that get triggered even by arrests for minor offenses, that cops will use those as pretexts to harass or to search for things that they have no suspicion of. 2. Courts have been unwilling to check this problem, however. Further, it seems extremely difficult to do so in any case. 3. Whren: following until traffic offense to arrest, then cops get AIC searches cops could have arrested = OK may suck, but what could be alternative? VIII. Plain View A. Definition 1. If cops have a right to be in some place and come upon evidence, that they have probable cause to believe they have a right to seize, they may do so. B. Requirements 1. Cop must legitimately be where he sees object from a. even if on a search warrant for some other object, that is sufficient right (Horton v. Ca.) b. courts do not worry much about pretext c. if there, don't need particularity for plain view... 2. Incriminating nature of object must be immediately apparent a. cannot seize in hope that it will later turn out to be useful b. this is most often the case with drugs and weapons 3. Cop must have right to access to the object a. cannot trespass to get at it, or enlarge scope of search in hope of finding it. C. Court wants to avoid searching scrutiny into cop's motivations D. Similarly, there seems to be a plain touch doctrine 1. most likely applicable with a Terry pat-down 2. but, cop cannot extend that pat-down to search IX. Automobiles A. Carroll doctrine 1. If cops have PC that evidence is in a car, then can search car without a warrant predicated on fear of car moving out of finding or of jurisdiction 2. Important to distinguish from automatic search of a car's passenger compartment upon arrest of an occupant (not a SITA) a. there, cop only needs to have PC to arrest, not to search b. if arrest is found invalid, then results of search are also invalid c. But, if Carroll doctrine is applicable, then what happens to arrest (or 17 not) of occupants is irrelevant. 3. Exigency does not matter (Chambers v. Maroney) a. Cops may seize a car, bring it back to the station, and then search it without a warrant. b. rationale is that other option is to simply seize car until get a warrant, and that implicates the 4th Amemd also without any judicial determination c. New federalism here: some don't allow... 4. Court has not allowed this exception when a search warrant could have been obtained before making a stop a. such as when going to someone's house to arrest him and separately have PC for his car. Then, it would be just as easy to get a warrant for the latter action as well, so no reason for Chambers doctrine 5. This exception extends to mobile homes as well a. Court's rationale based on stressed similarities to cars! 1. mobility of car 2. DEOP because of pervasive regulation B. Containers 1. NB that in Chadwick Court had not allowed search of a container upon a person at time of his arrest because of invasion of privacy unlike a car which is not intended as a repository of personal effects. 2. If cop has PC as to car, he can open up all containers found within it this reconciles some older cases which would allow a cop to search a car with PC and open containers, but if PC were limited to a container within a car he needed a warrant now, it does not matter whether PC is localized or not 3. Anomaly created = if cop has PC to a guy's briefcase, wait until he gets into a car and then can search it without a warrant even if could not do so on the street 4. Delayed searches of containers are find under this rule cops can take a package out and store away from car, and then search at some point in the future. 5. Chadwick = footlocker outside car = can seize, need warrant to search Ross = had p/c for car, get paper bag in backseat too Sanders = "drugs in suitcase" = need warrant for suitcase Ross incentive = claim p/c for car alone, then get suitcase too... Ca. v. Acevedo = GET SUITCASE IN CAR..., bright line = get whole car... X. Exigent Circumstances A. Generally 1. If exigent circumstances are present, a cop can conduct an arrest or search without a warrant when one would normally be required 2. Problem = factors which create exigency also make it more likely that cop will misperceive PC a. however, he is only one around to make that determination 18 B. Hot Pursuit 1. Premised on fear that chased suspect will escape out of jurisdiction or destroy evidence 2. will only exist if D knows he is being pursued C. Police and Public Safety 1. Cops can enter an area if they can claim they are protecting the occupants a. this often leads to weird stories by cops b. e.g. OJ 2. Need to show an "immediate" danger to either police or public D. Risk of Destruction of Evidence 1. If evidence will be destroyed in time to get warrant, then requirement is excused 2. Often requries tricky factual determinations 3. Court has rejected an automatic exigency exception for serious crimes a. even though warrant will often be routinely granted, there should still be a judicial determination 4. Court has also disallowed an exception to the warrant requirement with the minor crime of driving while intoxicated a. thought exigency should only be found after relatively substantial crimes E. Impermissibly Created Exigency 1. Divergent views on this 2. some courts hold that as long as cops act legally, there will be no impermissibly created exigency 3. Others hold that cops can still create it, if they intentionally try to do so F. Prior Opportunity to Obtain a Warrant 1. If a cop clearly knows that exigent circumstances will arise at some later time, yet does not take the opportunity to get a warrant, the requirement will not be excused 2. It is usually tough to ascribe such knowledge to a cop G. Telephone Warrants 1. these are now available, so that time peiod that will create an exigency has grown somewhat smaller, though not infintessimal H. Seizing Premises in the Absence of Exigent Circumstances 1. Court has found that premises may be seized pending issuance of a warrant in order to maintain the status quo 2. Reasoned that a seizure only interfered with a possessory interest and, since owners were already in custody, this interest was minimal at the time. 3. However, an unreasonable length of this seizure may make it unreasonable I. Fire Safety 1. Investigators can enter premises at time of a fire to put it out and immediately thereafter. 2. Unclear about subsequent entries a. Some Court excused requirement until cause was found, and would 19 require it for any further searching b. Other thought it was always required since fire was out c. Others thought it was never needed because of the wide-spread acceptance of the exception XI. Administrative Searches Camara: traditional warrant out... A. Safety Inspections of Homes 1. Court has mandated that even safety inspections need to have a warrant in order to be defensible 2. However, they can issue for either: a. Probable Cause OR b. demonstrated compliance with some regulatory scheme 3. Also, these warrants do not need to come from courts 4. Court has refused to allow judicial warrants to issue on less than PC a. fear that this is against express terms of 4th Amend 5. just need reasonable legislative or admin standards for area wide inspection... B. Administrative Searches of Businesses (NY v. Burger) 1. Business may be searched without a warrant if three conditions are met: a. its a pervasively regulated business & b. warrantless inspections are necessary to regulatory scheme & c. statute's inspection scheme must be a constitutionally adequate substitute for a warrant 2. Court did not explain how applying for an ex parte warrant dispelled the usefullness of surprise; still private 3. Some courts have disallowed these searches when used by an unusual officer as a pretext a. e.g. if checks are usually performed by state inspectors, court will be suspicious if FBI undertakes a warrantless search 4. can't be done solely for law enforcement purposes C. Searches of Individuals Pursuant to "Special Needs": sometimes warrantless on less than P/C and sometimes even w/out R/S 1. Drug Testing (Acton, Veronia) a. Court allows this in cases of special needs, when particularized suspicion might be impractical * Allowed to be done to all RR employees after an accident, partly because of fear that such use was prevalent (Skinner) * Also extended to treasury workers applying for certain jobs --stronger dissent here because no indication of a drug problem within the treasury workers (von Raab); why not on individualized suspicion? b. Random drug testing of students going out for a sport is OK (Veronia) * one way of getting at serious problem 20 * little intrusion * penalty of failure is nonparticipation in an activity; not criminal c. GA testing for drugs of political candidates= NO * no DEOP * no past history, individualized suspicion means you don't have to vote... 2. Other stuff a. Some courts have allowed mandatory HIV testing in some circumstances because of interest in preventing spread b. More intrusive searches of students have been allowed in the presence of only suspicion, but not PC D. Roadblocks and Suspicionless Seizures 1. Random stops are not allowed; reasonable suspicion must at least be present a. misery loves company 2. Fixed (permanent or temporary) checkpoints that stop everyone are OK, however. (Sitz) a. court fears discretion in the hand of the cop in the field b. Here, some higher-up makes the important decision *for both permanent and temporary checkpoints c. court focused on minimal intrusion, important state need against immigration and drunk driving, and lack of discretion 3. Courts have upheld dog sniffing of cars for drugs while cop scheck license and registration a. only struck-down law was one that really extended much discretion to the local police 4. Remember that these cases are decided on seizure rationale a. this is done in two instances * Terry line of cases * special needs beyond law enforcement b. searches for criminal activity must have probable cause and there is never balancing analysis XII. Consent Searches A. Voluntary Searches 1. If a person consents to a cop search of persojn or thing, then no warrant or degree of suspicion is required 2. Person needs to consent, however a. test = reasonableness under the circumstances (not VKI (Schneckloth), not waiver analysis... b. One list of factors: (Gonzalez-Basulto, Robinette) 1. custodial status 2. coercive cop procedures 21 3. level of D's coop with cops 4. D's awareness of right to refuse 5. D's education and intelligence 6. D's belief that no evidence will be found 3. Note: merely being in custody does not make consent coerced 4. D does not know that he can withhold consent without penalty a. some courts have held that refusal cannot be held against them in any way 5. Cops cannot use an empty threat to get a warrant to get consent if they do not actually have PC. a. Probably, can threaten if they actually do have PC and just wan tto save time 6. Subjective attitudes of people toward authority do not come into the reasonableness determination (Zapata): too intangible... BUT relevant subjective characteristics: age, gender, education & intelligence 7. Person's lack of consent should be unambiguous a. standing silent while cop searches may not be sufficient to suppress evidence 8. Refusal to consent can not = P/C alone... 9. New federalism may work here, to give people notice its ok to leave... Ohio St. Ct: Robinette: had to be told free to leave, S.Ct says no! 10. Prosecution has burden of proving consent (Bumper v. NC) generally by preponderance... (50% + an iota) B. Third Party Consent: touchstone = Reasonableness 1. Actual Authority: Person who has degree of actual control over premises, even if shared, may consent to their search not a law of property, but rather of common use and access may have Joint Authority too Common Authority 2. Apparent Authority: Courts will also upheld searches that are consented to by people with apparent authority to do so, if mistake of cop's is reasonable a. Cannot be intentionally ignorant b. Babysitters, hotel clerks cannot consent c. however, when cops believe an extremely weak claim of authority, if they turn out to have actual authority, the search will be upheld 3. Parents can generally consent to searches of premises of children living with them a. not reverse; minors cannot consent b. siblings & spouses can consent to all joint property 4. No wilful blindness on authority allowed by police (can't assume) 5. Outer limits: no desk clerk for hotel; divided on kidnapping victims... 22 C. Scope of consent 1. court determines this by looking again at "reasonableness under the circumstances" a. when cop state he is looking for drugs, it is reasonable to assume he will open up bags b. but not reasonable to assume that someone consented to breaking open of containers 2. Usually, courts put the burden of resolving any ambiguity on the citizen, otherwise excessive zeal of cop will be upheld some small circumstances where it has been upheld, such as where cop grabbed a guy's nuts in public after consent to search him D. Withdrawing or Revoking Consent 1. D can withdraw consent as long as it is done unambiguously and before the cop has finished the search 2. Courts will not let withdrawal of consent count as increasing the quantum of suspicion present ( no P/C there from)... usually a. although may stretch the point in some situations; tough questions... E. Credibility Determinations 1. Huge problem with consent searches is that judges are often called upon to believe either the cop's story or D's, which conflict hugely.; prob. of tesilying!! 2. No way to do this. 3. appellate court can overrule trial court with "extrinisc evidence" that contradicts credited story or if story is so internally inconsistent as to defy R belief = clear error! XIII. Eavesdropping, Wiretapping, Undercover Activity, and the Outer Reaches of the 4th Amend A. Introduction 1. Court was mired down in trespass rationale for quite a while finally rejected with Katz: focus on REOPS, not CPAs B. Undercover Agents 1. Person engaging in criminal activity takes risk that a participant may be an agent agents can carry wires, DEOP in conversations... can report back about conversations undertaken REOP not in words but in their fleetingness...? 2. Agents cannot exceed scope of invitation into a place to search 3. State can also enlist a confederate to elicit certain types of statements in order to gain information against some D 23 4. New federalism: can not allow one party consent... 5. Fear of "cop in the closet"? but can turn off a recorder... C. Wiretapping 1. there are strict statutory requirements governing the granting of warrants to eavesdrop 2. Application warrant must include (fixes Berger defects...) a. PC for a particular offense b. PC for evidence through particular conversations c. other investigatory techniques are "exhausted"; misnomer actually d. PC that tapped facilities will be used by D e. only high officials can apply for this 3. Order must specify a. ID of D b. type & location of bugged facilities c. particular description of type of talk to be tapped & offense d. ID of agency authorized to tap e. termination of the authorization at a set time (<30 days) 4. Examples: a. President can't simply order for security interest; limit on claimed inherent power but Foreign Intell. Surv.: not the same as domestic b. Have warrant for device, can you break in to plant it? YES XIV. Exclusionary Rule A. Debate about its effectiveness 1. Arguments for: a. rule insulates courts from taintedc evidence b. prevents gov't from profiting from own wrong c. only excludes evidence that should not have been obtained in the first place d. deters police misconduct 2. Arguments against a. judicial integrity is compromised by limiting the search for truth b. bad search is not always a but-for cause of the gaining of the evidence c. gov't already profits from its own wrong when it keeps illegally obtained evidence of a crime d. even if gov't must pay for its own crime, the benefit should nto flow to a specific D, but to society generally Weeks v. US: 1914: get exclusion as remedy of illegally seized evidence in FEDERAL courts only Wolf v. Colorado: 1949: does violate due process, but don't get exclusion Mapp v. Ohio: 1961: thru selective incorporation: EXCLUSIONARY RULE applies to 24 states for 4th Am. violations alternatives are illusory; can't have the rule and the right without the remedy B. Evidence seized Illegally, but Constitutionally 1. Evidence gathered in violation of state law does not need to be excluded from federal courts or from courts of sister states a. the state which passes the law can fashion its own remedy for the violation 2. Although one circuit has excluded evidence gathered in violation of a state's code of ethics, the executive branch has tried to get these as not binding onfederal officials 3. Violations of the FRCP do not usually require exclusion a. courts may exclude anyway if rules willfully disregarded, or intrusion was great RUBRICS: C. Procedures for Return of Property and Motions to Suppress 1. Courts can grant equitable relief an dreturn of property if circumstances so warrant. 2. do it out of jury presence, if granted, they shouldn't hear! 3. if no evidence, pros. might not go to trial, def. might plead... 4. some things may go to juries if denied by court (1/3 of states): was if voluntary? D. Attacking the Warrant as Untruthful 1. This is an extremely tough endeavor for a D 2. Motion for a suppression hearing must have specific allegations of deliberate falsity or reckless disregard for the truth. a. merely vague assertions of lying will be insufficient b. this does not apply if allegation sare that informant lied to a cop * only then get hearing if cop recklessly relied 3. Courts are tough in granting these a. affadavits stating that it was unlikely that cop could have smelled some substance as described were found insufficient b. Lies must be material and necessary to finding of PC *if unattacked material would still be sufficient to find PC, then no hearing E. Challenging a Warrantless Search 1. This is a very different situation than that with a warrant 2. here, if D objects to the evidence, stae must show by a preponderance that an exception to the warrant requirement was mandated. a. some states pretend to have this system even when a warrant is obtained, but the procedures are so deferential that it does not matter 3. burden on moving party, then gov't must justify... F. The Hearing and Judicial Review 1. D's testimony at a hearing cannot be used against him at trial 25 a. may be used for impeachment b. if other witnesses testify, their testimony may be used in any way since there is no 5th Amend concerns for them 2. Congress has allowed immediate appeal for state when it loses a hearing, since it cannot do so if it loses at final judgment 3. In Gates, Court mandated great defeence to issuing magistrates upon review a. this is tough with judge shopping, i.e. cops can bring the same affadavit around to differen tjudges until one finds PC b. different circuits treat this differently 4. DEFERENTIAL review... G. Standing: Whose tree? this is required in order to challenge a search or seizure Rakas v. IL: revolution; limits standing... 1. Court examines standing from standpoint of who has a reasonable expectation of privacy infringed a. some people used to be entitled to automatic standing, but this has been abolished b. even owners of an object do not always have standing to object to a search that reveals it c. Target of a search may not necessarily have standing * e.g. when they seize documents from a foreign official 2. Cars raise tough questions a. owner always has standing b. passenger will have no standing even if regularly keeps some items inside it 3. If D disassociates himself from some property that he owns, he will not have standing a. e.g. if rents a car in someone else's name and that other person is only person to drive it, renter has no standing 4. Conspirators have no standing to object to violations against a co-conspirator a. conspiracy neither adds nor detracts from analysis of expectations of privacy in some object or place b. each individual d must establish some individual 4th Amend interest in a thing 5. PERVERSE incentives? ok to violate Bs rights to get to A, and vice versa...: rewards misconduct? H. Fruits of the Search: Causation and Attenuation 1. If a search produces no evidence, then there is nothing to exclude a. Also, a bad arrest of D does not deprvie the court of jurisdiction over that person b. some evidence may have to be suppressed, perhaps, but trial can go on 2. However, fruits of an illegal arrest will be suppressed 26 a. MWs alone do not cure confessions made after a bad arrest b. Deliberate police conduct is not needed * e.g. if cops mistakenly believe they have PC and make an arrest, a confession will be suppressed c. To determine attenuation, courts will look to: * length of time between arrest and confession * MW * setting of questioning * showing of evidence, fingerprinting, lineups * flagrant police misconduct 3. Payton violation a. This is an illegal search * not an illegal arrest b. So, only evidence seized in-house gets suppressed c. not confessions, unless some evidence from within house used 4. Note complications between standing and frutis doctrine a. if some act violates D's rights, he has standing to object to a later violation that flows from that initial one, even if the later one violates someone else's rights I. Independant source 1. If cops have enough information to get a warrant even without that gleaned from some violation, and also would have obtained a warrant without that other violation, information gathered under the warrant will not be suppressed a. two parts: * probable cause existed without the violation * cops would have sought warrant without the additional information gleaned from the violation cops must show by a preponderance b. here, evidence is actually discovered through legitimate independent means, but there is some initital violation c. Court wants to avoid putting cops in a worse position than they would be without the violation 2. Fear = cops will do confirmatory searches a. court thinks this would be risky for cops, since need to convince court of subjective intent b. but courts already have much trouble making these credibility determinations 3. Under the Franks standard for reviewing warrant applications, even if some tainted evidence is used, if enough inevitable stuff is in there it looks as if no hearing will be granted J. Inevitable Discovery -the Hypothetical Exception 1. If government can show that illegally obtained evidence would have been 27 discovered through legitimate means independent of the official misconduct, there will be no suppression a. This was originally described in a 6th Amend case, but seems applicable to other amemds as well b. Cops must make this showing by a preponderance c. Tough hypothectical inquiry 2. With inventory searches, much fuss over searches of person, cars, and containers seems silly a. once cops get D back to the station, they can search everything anyway b. some circuits do not allow these to work as inevitable discovery exceptions, but most do 3. Focus on judicial inquiry should be on what would have done if they had not underatken the illegal act a. not, what they could have done b. do not want this exception to override warrant requirement whenever cops have PC c. some courts have mandated an "active pursuit" requirement in order for the exception to apply * cops must show they are pursuing the legal method of obtaining the information at the time of the violation K. Witness Testimony After Illegal Arrests and Searches 1. Voluntary testimony from a live witness will almost always break the chain of causal relation a. Court wants this type of evidence excluded much less easily than inanimate objects 2. similarly, with in-court identifications even if cops take photos of a D after an illegal arrest, which are used for ID purposes, W can still perform an in-court ID L. Use of Illegally Seized Evidence Outside the Criminal Trial Context 1. Court has been reluctant to exclude evidence from other types of proceedings 2. Usually does a balancing test to compare benefits of exclusion (usually deterrence) to costs to society or court system 3. Illegal evidence is allowed in: a. grand jury proceedings b. civil tax proceedings c. civil deportation proceedings d. habeas proceedings e. sentencing proceedings * this last has not been determined yet by the Court * some courts require that illegal evidence be considered so that the ideas of the federal sentencing guidelines be used THEORY: Marginal returns: here: MARGINAL deterrence; no additional 28 value if can't be used at trial... 4. Exception = forfeiture proceedings a. evidence seized illegally cannot be used here because government would be receiving a benefit b. However, objects seized illegally can be the subject of a forfeiture proceeding * liken this to illegal arrests where the state can still prosecute 5. Open questions a. child protection proceedings b. parole revocation proceedings M. Use of Illegally Obtained Evidence for Impeachment Purposes 1. Illegally obtained evidence can be used for impeachment of D's direct examination this seems fairly simple, since D can control the scope of the direct and avoid raising an issue related to the illegally seized stuff 2. Illegally obtained evidence can be used to impeach a D on cross-examination if the questions on cross are plainly within the scope of the direct a. Benefit -prevents perjurious testimony from getting into court b. Detriment -removes control of introduction of evidence form D, and gives it to the state * strong deterrent to D from testifying 3. Illegally obtained evidence cannot impeach D's witnesses a. Court worried that this will ultimately result in a loss of probative evidence ** d cannot control the testimony of his witnesses, nor can he always select them b. Dissent worried this will allow perjurious testimony N. Good Faith US v. Leon: allows for good faith exception to exclusion as a remedy Reasoning: 1. use of fruits is no new wrong; 2. cost/benefit, want cops to rely on warrant; 3. limits on deterrence to magis; not served by suppression 1. if cops get a warrant in a good faith belief that they have PC, evidence will not be suppressed if that determination by the magistrate is later found to be erroneous. 2. "good faith belief" is an an objective, not subjective, test a. Court wants to avoid looking into minds of cops b. three situations 1. reasonable mistake (mistake of fact) so no real 4th Amend violation = no suppression 2. unreasonable mistake about which minds could differ = good faith exception 3. unreasonable mistake where cop violated clearly established law 29 = suppression 3. Line between #s 2 and 3 can blur at times so, if cops get an overbroad warrant but do not realize that until the search is underway, courts may really apply a good faith exception, instead of finding no unreasonable action 4. Dissent in Leon was worried that with easier standard for finding PC in Gates, there would be no situations where a warrant would be foudn without PC and reliance on it could said to be reasonable. Experience shows otherwise, and courts have invalidated a number of warrants and yet still found the good faith exception applicable. 5. There is confusion over line between reasonable and unreasonable reliance a. situations where magistrate obviously does not read warrant b. where warrant authorizes an overbroad search 6. Some evidence that courts do not decide tough issue of whether a 4th Amend violation took place and instead find that, even if one had, the good faith exception would apply this strips court of much of their teaching function 7. This leaves open question about what to do with searches made in bad faith by cops, although legal under the 4th some want exclusion others want civil remedies against the cop 8. Teaching function: should look at 4th Am. analysis too, don't skip right to GF, still need guidance from appellates... O. The Good Faith Exception and Warrantless Searches Krull v. IL: when search conducted under statute later found to be uncons: no suppression how is cop to know that statute would be unconstititutional...? 1. Court has not suppressed evidence seized pursuant to a state law authorizing warrantless searches that was later found to be unconstitutional a. court found no deterrent effect ot legislatures in doing this b. police had done nothing wrong 2. Court did not suppress evidence after a search incident to arrest when arrest was based on a warrant that showed up in computer, but was later found to have been quashed a. little deterrence to court personnel that had made error b. no desire to punish police 3. Problem with Good Faith exception when a court overrules past decisions a. in these situations, cops acted in good faith, but actions were later found to be unconstitutional b. if good faith exception is applied, however, then there is no incentive to D's to argue for new law 4. At least one circuit has extended the good faith exception to warrantless 30 searches by a cop a. such as where some information he got ws unreliable, and he does search anyway b. argument against this extension is that is will not provide an adequate incentive for a cop to go through a judge P. Alternatives to exclusion 1. Tort recoverty a. fortified b. Senate proposal 2. Criminal prosecutions of violators... 3. Police rulemaking or adminstrative solutions XV. Introduction to Confessions 5th Am. "no persons shall be compelled in any criminal case to be a witness against himself" Chart Headings: Analysis of Policies for the rule: some rhetoric, some hollow, some bad 1. Protection of Innocent 2. The Cruel Trilemma 3. Deter Perjury 4. Unreliability of Coerced Statements 5. Preference for Accusatorial System 6. Deter Improper Police Practices 7. Fair State-Individual Balance 8. Preservation of Official Morality 9. Privacy Rationale 10. First Amendent Rationale... A. Scope of the Privilege 1. Although applies only to criminal proceedings, this has been construed as broadly as the mischief against which it seeks to guard a. applied to forfeiture proceedings b. applied to Grand Jury proceedings 2. What is a criminal proceeding a. Court is likely to defer to definition of the legislature Proceedings for mandatory committment of mentally ill not considered criminal b. Privilege can be invoked in civil proceedings to guard against criminal prosecutions c. Unclear whether privilege can be invoked to protect against prosecution but a foreign state 31 some states allow invocation if threat is credible to protect against prosecution from another jurisdiction within the US is certainly OK B .What is Compulsion 1. Not always an easy line to draw 2. Contempt penalties certainly qualify 3. Economic penalties also qualify a. denying contracts to contractors who refuse to testify against themseleves = compulsion (Lefkowitz v. Turley) b. likewise, firing police officers for failure to testify = compulsion status as state emplyee does not change 5th amend c. threatening to disbar lawyers = coercion 4. Grant of immunity makes a person testify a. state need only grant immunity from criminal prosecution b. So, can still fire someone as a result of testimony from immunized proceedings 5. Government benefits cannot be conditioned on self-incrimination a. so, if some information requested would endanger prosecution, applicant can take the 5th and not answer that question b. Court has not answered whether the taking of the 5th in this context can be used as a reason by the government to undertake an investigation 6. Griffin Rule: Courts are not allowed to comment negatively on D's choice not to testify a. now, are required to give a limiting instruction when requested b. usually, state cannot refer to it either circuits split on whether P can refer to "uncontradicted testimony" when D was the only one capable fo contradicting c. In a civil case, an adverse inference is allowed d. ? of whether adverse inference allowed by non-parties (witnesses who won't testify), still up in the air C. To Whom does the Privilege Belong? Fisher v. US: limited to protecting privilege "against himself" 1. Court has defined 5th as a personal right a. if documents or knowledge are given to agents, they can testify against their master b. privacy protection is not interest of the 5th Amend 2. Corporations have no 5th Amend privileges a. this includes partnerships, e.g. law firms b. sole proprietor ships do have 5th Amend, because so closely identified with an individual but, if a single individual owns and operates a corporatin, there is 32 no 5th Amend privilege D. What is Protected 1. Non-testimonial evidence (Schmerber v. CA) a. this is generally NOT protected: including blood-alcohol tests line-ups handwriting samples voice-prints NOT TESTIMONIAL (CTSI needed, here, no T, CSI not enough!) b. Usually, basis for this is the presence of the cruel tri-lemma When D has choice of only truth -and injure himself lie -and perjure himself silent -and risk contempt However, Court has found testimonial evidence of the content of questions asked drunk drivers (Muniz) although content of those questions was allowed c. Not all compelled statements are testimonial * in order to be so considered, it must contain at least an implied assertion that some fact is true or false ** so, compelled signature on a form releasing bank records is non-testimonial if there is no implication that the bank records actually exist *** voice alone (in line-up is characteristic, not testimony... (Wade) d. If state uses a psych to testify at a sentencing hearing, D must be warned * court rejected idea that psych made evaluation solely from demeanor * some courts have allowed cops to testify about their impressions of a D's psych without warnings there is a split on this one e. 5th Am. not given full literal force; can be forced to do stuff if no communicable testimony... 2. Documents "A party is privileged from producing the evidence, but not from its production." --Holmes... a. Voluntarily prepared business documents have no 5th Amend protection unless the actual act of production is in some way incriminating Court does not demand that producer of documents vouch for their accuracy or authenticity ** NOT COMPELLED AT CREATION some trouble over personal papers 33 O'Connor has written in dicta that these also have no protection Some circuits follow her, but a few do not b. When is Act of Production incriminating ** if there is doubt that documents exist 1. if Dr. denies treating a high number of patients in a certain year 2. if request is for tax returns, and D denies having any income in a year ** if there is doubt that he controls the documents 1. if D denies he received notice about some event 2. if D denies he had any contact with some other entity ** if there is doubt that these documents are those described in the subpoena 1. usually act of production is insufficient to authenticate docs c. With corporate documents, Court requires custodian to turn them over even if they might be personally incriminating, but that the actual act of production cannot be used against him (Braswell) ** Problem arises if, by nature of a small organization, trier of fact could not help but realize that the docs were turned over by D himself ** Usually avoided by passing docs through some 3rd party this limited protection at trial is better than a grant of immunity, since then derivative evidence gained from the documents could not be used either d. AUTHENTICATING otherwise: 1. in ordinary course of business 2. course of business to make documents 3. document the relation (temporally) ** also authenticated by actual act of production... e. Production of a person When D assumes custody of a child pursuant to court order, an eventual production of the child is implied, and so no 5th Amend priv may be granted May be different if court made such an order against a parent without prior contact with leagal systme and the act of production could be considered in some way incriminating 3. Required Records a. The 5th Amend protects neither the contents of, nor the act of production of, records prepared pursuant to a valid government regulatory scheme (Shapiro) b. If the focus of the scheme is to limit criminal activity, this exception 34 will not be valid (Marchetti) *5th protects D accused of not reporting wagering income from handing over tax forms * also, similarly, no conviction under act requiring registration of shot-gun c. court more likely to allow no protection if the privilege will be self-activating * no use restriction from information gained under statute requiring self-identification of people in an auto accident (CA v. Byers) * Court worried that no judicial supervision at all here d. Lower courts have split over determination about wheterh regulatory schemes are valid or focused on criminal activity, if target group are inherently suspect... * allowed for requring notification of airline about carrying a weapon & requiring records of buy and sale of livestock * but not allowed a scheme requiring keeping track of the removal of identifying marks of cars e. BALANCING REQUIRED: costs and benefits * need for self-reporting v. indiv. claims to const. protection E. Procedural Aspects of Self-Incrimination Claims 1. Determining the risk of Incrimination a. A D who refuses to take the stand is always within his privilege b. Tougher question with a Witness 1. Standard = if perfectly clear that the witness is mistaken and that the answers cannot possibly have such tendency to incriminate 2. even if the testimony woul donly provide a link in a chain of evidence 2. Immunity a. Two types 1. Transactional = provides protection from any future prosecution related to the events testified about * no immunity for perjured testimony * responsive only: no immunity for freely volunteered excess 2. Use and Derivative (Fruits) = provides protection from the use of that testimony and any information directly or indirectly derived from it in a criminal proceeding, other than a perjury proceeding b. Now, Court only requires a grant of Use and Derivative immunity to make a W testify 1. can be tough to show that immunized testimony was not used 2. usually Ps set up firewalls 3. P can use immunized testimony in decision to prosecute, usually 35 very tough to prove 4. Courts have used similar applications of the "inevitable discovery" and "Independant source" doctrines to allow in evidence that was also gained in immunized testimony c. Immunized testimony cannot be used for impeachment can be used for perjury, however d. Once D gives immunized testimony, he can request a new grant of immunity before he makes similar statements again 3. Waiving the Privilege a. Scope of Waiver 1. When D takes the stand to testify about some things, it is tough to limit cross narrowly to those same areas Courts handle this issue in different ways with more or less latitude if cross is within realm of direct, then cannot later invoke the 5th. 2. Court found that presenting a psychiatric defense allowed the state to rebut with its own psyc evaluations of d b. If answer questions and try later to invoke privilege, it is deemed waived XVI. CONFESSIONS and Due Process A. Involuntary Confessions are in violation of Due Process factual prerequisite to finding involuntary = POLICE COERCION 1. Some factors to be used in determining involuntariness a. education of D b. mental deficiency of D c. veteran of criminal process d. deprivations of food, sllep e. psychological influence f. D kept incommunicado g. D aware of right to counsel 2. Court criticised this test even while applying it becasue it was only on the totality of the circumstances a. too fact-specific to give much guidance to lower courts 3. By the '50's, Court became more concernded with the denial of counsel a. although cases still decided on invountary test, this aspect was given increasing reliance B. Modern Due Process factual prerequisite to finding involuntary = POLICE COERCION 1. This can still be important in those cases where Miranda & Massiah provide no 36 protection by excluding all use of confessions It is rare, however, that courts today find involuntariness 2. Cops are generally allowed to lie to Ds about the strength of the case against them a. however, one circuit has suppressed a confession after the use of false documentary evidence b. weak distinction, however c. cops are supposedly forbidden from making false promises to coerce D; true ones, however, such as a promise of lenience, are permissible they allow D to make an informed choice d. promises of "consideration" allowed 3. Credible threat of physical violence is enough if made by agents not completely under control of cops 4. Focus is more on police misconduct rather than "free will" of confessor so, even if confessor is looney and confessess for reasons outside of voluntariness, they will not be suppressed PROBLEMS with "free will" test: = overbearing of free will... ALTERNATIVE = (actual?) if gov't has made it impossible to make a rational choice, mde it impossible to balance, can play on fears, but not MAGNIFY... C. Federal Standard for Confessions 1. Court had exercised supervisory power here to further limit the use of confession sin federal courts 2. Congress passed its own statutes that provided the following standards for exclusion: a. voluntary confessions, as determined by a judge at special hearing, were admissible b. judges should take into account the delay in arraignment, whether D knew of what he was charged or suspected, whether he knew he could refuse to make a statement, whether he knew he had a right to counsel, whether he had such counsel c. that delay alone would not make a confess inadmissible if under 6-hours or if it would take longer to get to a magistrate d. and that nothing barred voluntary confessions made outside of interrogation. 3. Some of the old common law of Court's supervisory power may be still left around for delays less than six hours. a. There, perhaps multi-factored analysis of court before statute might still operate to disqualify evidence gained from a delay in presentment b. as long as the time factor is not the only one XVII. Fifth Amendment Limitations on Confessions 37 A1. Massiah: CORE RIGHT... 1. Court cannot deliberately elicit incriminating statements from an indicted D a. rule is not focused at police-created pressure b. one explanation = once adversarial setting in place, no circumventing lawyer A2. Escobedo (no longer such good law...) 1. short-lived, had right to counself before formally charged... 2. Theory of CRITICAL STAGE, need a lawyer? 3. Timeline test... presence or absence of an indictment... for counsel A. Miranda 1. Holding: States may not use any statements made during custodial interrogation unless it shows that procedural safeguards were used to secure the privilege against self-incrimination a. this applies to any statement used by D whether incriminating on its face or not b. Court noted its reluctance to believe that a waiver was granted in certain extreme circumstances c. Court does not need to appoint an attorney when one is requested; they must, however, cease questioning until one is appointed so, D could remain in custody 3. Court very worried about compulsion inherent in any custodial interrogation so, requires that at least some warnings be given to D before statemetns may be used 4. NB: counsel is not necessary for D to waive the privilege this right would follow from analysis in majority's decision, but there was no majority for this extension 5. It is unclear what costs Miranda has had to the police there are still certainly many confessions gained through waivers 6. Legislature tried to overrule Miranda by ordering the admission of voluntary confessions a. Gov't has never tried to press this issue 7. But may waive if VKI, may invoke rt. to counsel or to silence... 8. BRIGHT LINE: IF NOT GIVEN, ALL ELSE DOESN'T MATTER, even if given, could argue involuntary or no VKI waiver (could overlap) 9. "Const." underpinnings a. pressure by police b. 5th Amend. Pressure Adherent in all custody = "inherently coercive..." c. specific warning required to dispel ignorance... 10. Characteristics: a. Educational --tell people what there rights are b. Cops are ones to do it --limit choices... Bright line rules = easier 38 judicial review... B. Non-constitutional Status of Miranda 1. Harris v. NY: Miranda-defective statements can be used for impeachment a. Miranda decision is a prophylatic rule and is not constitutionally required b. exclusion from P's case in chief is ample deterrence to achieve its effects c. Involuntary confessions, however, violate Due Process, and cannot be used by P at all d. Silence 1. D's silence after receiving MW cannot be used to mipeach him since that response is induced by government action this is required by Due Process 2. D's silence before arrest, since not a response to any government action, can be used to impeach him this comes up most often when D was silent during investigation, and then claims self-defense at trial One circuit has held that silence post-arrest, but pre-MW, can be used for impeachment purposes e. Reasoning: no deterrent effect vs. allowing perjury (sufficient deterrence in leaving out of case in chief...) f. Add Mincey: INVOLUNTARY confessions not even for impeachment concerns about reliability when truly compelled... 2. Admitting the Fruits of a Miranda Violation a. Tucker: Leads to witnesses are admissible * Court performed balancing and found little reason to exclude a lead to a W that is a result of bad MW ** However, if lead were a result of an involuntary confession, then perhaps a different result b. ELSTAD: A MW confession taken after a defective one will be admitted for all purposed * First confession must be merely MW defective, and not a Due Process violation ** mere knowledge by D that he had already given a confession did not make the second statement involuntary *** some courts hve not allowed this rule when cops immediately follow th edefective statement with a proper one looks like they are obviously trying to get around MW **** Physical evidence resulting from MW defective confessions can be used fully at trial 3. An Emergency Exception 39 a. If cops need a quick statement from a D for some compelling pubic safety reason, lack of MW will not exclude the statements from use at trial situation here was a guy who had disposed of a gun during a chase in an area where a kid might have gotten it b. Extent of this exception is not clear * could cops interrogate for hours? ** at least one circuit ahs allowed a categorical exception for this, with an often repeated instance that could endanger a cop C. Open Questions After Miranda 1. What is custody? a. A D under arrest is almost always considered in custody *Court has held required MW at least once when D was in jail for one offense, and he was questioned about another offense ** Some circuits do not read this as a per se rule, but rather look for some extra limit on freedom of D in order for MW to be triggered b. Interrogation at police station is not necessarily custody * if D goes unaccompanied and told not under arrest ** same with a D who went willingly with cops being accompanied by cops seems like it should change things however c. Required meeting with parole officer will not be custody although officer was seekeing incriminating statements, test of Miranda is custodial, not merely incriminating d. Subjective intent of cop does not mind if reasonable person would think he is in custody, does not matter whether cop intends questioning to be voluntary or not e. Terry stops are not custodial short period, not in a cop controlled setting, not obligation to respond f. Some relevant factors: 1. D told its voluntary 2. D have freedom of movement 3. D initiated contact or met voluntarily 4. police deceptive or pressuring 5. atmosphere police-dominated 6. D arrested at end (this seems like a silly factor!) 2. What is interrogation? a. RI v. Innis: Test = direct questioning or actions reasonably expected to elicit an incriminating response * so, allowing D to speak with his wife in obvious presence of cops 40 is not interrogation ** making vague statements about public safety is not b. Court has held that, in some circumstance, confronting D with incriminating evidence is interrogation some circuits have gone the other way in following this c. Courts more likely to find interrogation when statements are directed at D than at other cops, even if the cop intends a response from D so, asking a rhetorical question of D might be interrogation d. PA v. Muniz: Questions attendant to custody are allowed without MW * scope of booking exception is vague ** usually look to cop's normal habits, and whether answer was needed *** any statements elicited by normal cop comments and explanations are also usually allowed even if, with a drunk D, statements might reasonably be expected 3. Does Miranda Apply to Undercover Activity Miranda does not apply to undercover activity, no "Police-dominated environment" (???) 4. Does Miranda protection Depend on the Nature of the Offense a. MW does not depend on whether crime is felony or misdemeanor b. Court worried about pretext arrests, lessening bright-line standard, and confusing cops 5. How Complete Must the Warnings Be a. As long as MW are not very misleading, courts will generally let them in D. Waiver of Miranda Rights 1. Waiver and the Role of Counsel a. In order for a waiver of Miranda rights to be valid, it must be knowing (intelligent, not used, but overlaps...) knowledge of content of warnings and rights... & voluntary standard for voluntary is same as for Due Process wtih confessions, so some police misconduct is necessary b. Conditional waivers are valid, as long as it seems that D understands what was told to him c. Much information is not required for a waiver to be considered intelligent * D does not need to know what crime cop will ask about ** D need not realize an earlier statement could be used in court *** D need not realize a lawyer had already been retained for him 41 d. Court does not wish to extend Miranda's reach to try to regulate other behaviors * cop misleading of a nonpresent attorney does not matter ** subjective cop intent does not matter *** Cops need not inform D of counsel's efforts on his behalf 2. Waiver After Invocation of Miranda Rights a. Mosley: After an invocation of the right to be silent.... Cops can reinitiate questioning at some later point must allow a cooling off period give new warnings at that later time Ambiguous invocation of the right to counsel does not require cop to cease cop need not even try to clarify vagueness b. EDWARDS: After an invocation of the right to have counsel present.... * After this, cops can never reinitiate questioning unless counsel is actually present ** Even if D initiates a conversation, cops may not necessarily be able to ask questions two part inquiry: Did D initiate further conversation? & Was waiver voluntary under the totality of the circumstances? most courts allow requestioning after a reinitiation by D *** Ambiguous right to counsel need not be honored cops need not even try to clarify **** If invocation of right to counsel is clear at first, subsequent waffling is irrelevant Court does not want cops pressuring D into changing his mind **After right to counsel invocation, cops may not initiate questions about other crimes *** NB: difference between Miranda right to counsel and 6th Amend right to counsel the latter is offense specific (Miranda not, Roberson) the latter is constitutionally required (6th = broader right: to HAVE counsel, Miranda = right to be warned...) ** D may not invoke Miranda until questioning is actually taking place cannot anticipate *** If D invokes right to counsel, then actually has a chance to speak with counsel, cops cannot still attempt to reinitiate interrogation 42 can only do it actually in presence of counsel XVIII. CONFESSIONS and the 6th Amend Right to Counsel A. Massiah: 1. Court can not deliberately elicit incriminating statemnets from an indicted D a. rule is not focused at police-created pressure b. one explan. = once adversarial setting in place, no circumventing lawyer c. custody not relevant! d. Escobedo: short-live, for all not charged = NOW = indictment as critical stage... B. Brewer: Obtaining Information from Formally Charged Defendants 1. An intentional relinquishment of a known right or privilege is necessary for a Massiah waiver to be effective didn't say couldn't WAIVE, here just didn't... 2. 6th Amend. right attaches full-blown at time of indictment a. even if that time is delayed after long periods of investigation or even detention b. ATTACHMENT = adverse judicial proceedings begun... 3. Psychiatric examinations a. Do not necessarily violate 6th Amend b. D's counsel must know the scope of the exam c. if he is unaware or the scope is exceeded, then 6th violation C. Use of Undercover Officers and State Agents 1. NB: 6th can be less protective than the 5th because it only protects Ds who have been indicted and only against that specific offense. But, it can be more protective because it guards against undercover tactics 2. Jailhouse plant (US v. Henry) a. if state agent is almost entirely passive, his testimony will be upheld b. if state agent encourages comments at all, then it is 6th violation violation = intentionally creating a situation likely to induce talking... 3. Gets tricky when trying to define a state agent a. circuits split on agents who are not targetted on particular Ds, but who generally know they will get paid for any info b. if prisoner is not a state agent, then no 6th Amend implication D. Continuing Investigations 1. If D is indicted for one crime, there is no 6th Amend prohibition against getting information about other crimes a. if accidentally get information about indicted crime, that evidence cannot be used at that trial, regardless of intent of cops 2. this could lead to complicated situations when two crimes are very much bound 43 up together CHART: E. Waiver of Sixth Amendment Protections 1. Patterson: When D waives rights immediately after MW.... a. waiver of MW rights is sufficient to waive 6th amend protections as well 1. Question about: if d's counsel is trying to reach D and D is not told, standard might be different in 6th Amend than 5th (no K) 2. Also, different standard with 6th Amend rights with surreptitious conversations with undercover cops (no K) b. generally, courts have not required that D be told he is under indictment when MW given c. Q of K & V??? 2. Michigan v. Jackson: When D later waives after an initial invocation.... a. unless D makes a specific invocation of the 6th at indictment, cops can initiate questioning later and get a waiver at that time b. if D makes an explicit request for counsel at indictment, then cops cannot later attempt to get a waiver c. invocation of the 6th is charge specific, so cop scan question about unrelated ones ** unlike 5th amend *** tough determination as to what crimes are related to charged one **** should at least stem from same factual transactions 3. Warning, Invocation, Initiation, Waiver... error of law is initiation after invocation by COPS... F. Sixth Amendment Exclusionary Rule 1. True 6th Amend violation, like of Massiah, would prohibit cops form using statements at all at trial a. impeachment and case-in-chief b. no fruits, either 2. But, if violate one of the associated prophylatic rules (Jackson, Edwards), then 44 not necessarily a violation, so only excluded from case in chief a. like of Michigan v Jackson -cops cannot reinitiate questioning after an invocation