Criminal Procedure – McGoldrick – 2007 Basics IV Amendment – People have the right to be secure in their persons, houses, property, & effects against unreasonable searches & seizures. No warrants can be issued unless supported by probable cause, and supported by evidence given through oath or affirmation demonstrating the presence of probable cause o Also applies to the states through incorporation (14th amend) o This prohibits the state/gov from acting in such a manner, but does not speak to individuals. However, an individual working in conjunction with such an agency would be considered a part of such agency States can broaden the protections of the Constitution, but it cannot restrict them The Constitution is the Supreme Law – states cannot ignore or deny these protections Searches & Seizures of Persons & Things Ambiguous Terms in the IV Amendment o “The People” – SC has seen this as a limiting term – only those “part of the national union, or otherwise sufficiently connected to this country” A search of non-resident alien in Mexico was not protected Other suggests that this implies a very broad protection o Reasonableness Clause / Warrant Clause W/a warrant, a search is reasonable. A search w/o a warrant is not always unreasonable, as there are exceptions There are 2 questions with s/s o Is the conduct a s/s? If not, then we don’t care about reasonableness o If the conduct is a s/s, then was it reasonable? What is a search/seizure? o Katz test – The person has an actual (subjective expectation of privacy AND That expectation is one that society sees as reasonable (objective) The two extremes presented are the home v. open area conversation o To constitute an actual expectation of privacy, courts sometimes look to affirmative steps that demonstrate that the individual is expecting privacy o Katz – Eavesdropping of a conversation in a phone booth constituted a search o Material that is considered abandoned bears no expectation of privacy, and is therefore not a s/s – this abandonment can be explicit/implicit Open Fields Doctrine – Open fields do not constitute effects under the 4th, and thus individuals have no expectation of privacy – this expectation extends only to cartilage o 4 factors used to determine cartilage – Proximity of area to home
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If area was included in an enclosure surrounding the home (i.e. fence) Nature and uses of the area Any steps that th individual took to protect the area from observation o Standing outside cartilage & looking in does not constitute a search b/c there is no reasonable expectation of privacy if the public can look in o If an individual is subject to scrutiny by society, then they have no legitimate expectation of privacy that would bar the same activity by the gov Financial Records – since accessible by banks, should be accessible by gov Pen Registers – although permitted only with consent, or by court order Trash – even if covered Aerial Surveillance – since there is no law against the public doing the same, the activity is not a s/s Bond – bags in public transit o Court held that the individual exhibited both subjective and objective expectation of privacy. Although his bag may be subject to handling & movement by other passengers, etc – this would not be done in the exploratory manner in which the officer acted. Activity that can only reveal illegal activity – there is no reasonable (objective) expectation of privacy in illegal activity/contraband o Dog Sniffs – this sniff is limited so as to only reveal contraband (sui generis) Cabelles – D was pulled over for speding, another officer arrived w/dog that sniffed the car – court held that since he wasn’t detained for any longer than he would have been that the activity was not a search – moreover, his seizure (detention) was not unreasonably based on this duration Court examined the duration of stop/character of the dog sniff Cannot open luggage based on fallibility of dogs, but it is sufficient info to obtain a search warrant o Chemical Testing for drugs Technology o Kyllo – police used thermal imager to determine heat & if D was growing marijuana Although typically, a warrantless, visible search conducted outside a home is lawful, since the officer used “sense-enhancing technology” to discover about the interior, this activity was therefore a search o Tracking devices do not automatically trigger a search if they are coupled with the officer following and knowledge of the presence of the barrel by other means – it only augments the normal senses
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In a private residence, not open to visual inspection – a tracking device would be a search – it conveys info that could otherwise not be obtained w/o a warrant It is possible that D could allow a 3rd party to bring in the tracking device & not constitute a search Private Citizens – typically, private citizens do not trigger IV Amend concerns o Mixed Public & private Action – if a private individual is clearly working in the capacity of the gov, then the IV Amend is triggered Look at whether the private actor believes that their conduct was either impliedly/expressly requested or required by the gov, and whether the gov had reason to know of such belief o Gov action subsequent to Private activity If a private actor opens a package, and later describes the contents to a cop – when the cop reopens the package it won’t reveal anything that the actor did not already tell him – this is the same as if they had opened it & left it open. W/cases involving homes – we use a foreseeability test Paige – repairman looking in the ceiling for boards. Owner had told him to go into the garage if he needed anything If the private party’s search was reasonably foreseeable, then the occupant no longer possesses a reasonable expectation of privacy, and a subsequent gov search will not violate the IV Amend If not foreseeable, then the expectation of privacy survives, and a subsequent police search will trigger the IV Amend Controlled deliveries – lawfully opening a package, resealing, and then allowing to be delivered to its intended target Resealing the package does not reinstate privacy rights – thus IV Amend is not triggered If significant amount of time, the IV Amend could possibly apply o Prisoners have a diminished constitutional right to privacy o Foreign countries – Evidence obtained through searches in other countries is generally admissible, regardless of compliance w/ IV Amend. There are 2 limited exceptions – If the circumstances of the s/s “shock the judicial conscience” If the US Agents participation was so substantial that the action was a joint venture
OBTAINING A SEARCH WARRANT – CONSTITUTIONAL PREREQUISITES Purpose of the Warrant o Protects against unreasonable s/s o Prevents “after-the-fact” justifications o Doesn’t allow searches to be arbitrary (including the scope of the search)
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There is a presumption that a warrantless s/s is unreasonable Source of the Information o Aguilar-Spinelli The allegations must set forth the underlying circumstances (basis of knowledge) to enable the judge to independently judge the validity The source must be credible & the information reliable Under this test, the tip must be able to stand alone and satisfy the requirements absent any independent corroboration o Gates – uses a totality of circumstances approach, which includes the A-S test as factors, but not as controlling, rigid elements Here, independent corroboration can help supplement the factors of A-S, and are viewed in total o Some states use Gates, some have retained A-S o Applications Upton – motor home contains stolen items, conf. tip that D would move; officer identified CI as D girlfriend. Applying Gates, the court found this info sufficient o Ordinary citizens are typically seen as more reliable b/c they have a concern for society & their own safety & there is little chance of fabrication o Accomplices are presumed automatically credible – no corroboration required Amount of Info Required – “fair probability” that D has / is committing a crime o Prandy-Binnett – D at train station, engaged in continuously suspicious conduct – these continuing conditional probabilities provided the officers w/ PC o “Buy & Bust” – undercover officer, gave ID to others; arrested man who fit description, wrong man, but had drugs. Court held that if there was PC in the 1st place, if the person arrested is incorrect, but has/is committing a crime, the PC & arrest stand o Pringle – officer pulls over car, 3 men, finds cocaine in the back – court held that he had PC to arrest all 3 men b/c no one made a claim to the contraband o Davenport v. Alford – D stopped for suspicion of one violation & arrested for another Court held that as long as there is objective PC at the time of the arrest, the incorrect subjective intent of the officer will not preclude the arrest The court looked at the facts as they were known to the officer & made reasonable conclusions as to whether the officer had PC to make an arrest on some grounds
WARRANT & PARTICULARITY Things to be seized
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o Warden v. hayden – holds that there is no true distinction b/t instrumentalities of a crime & likely evidence – there still must be a nexus b/t the item to be seized & the criminal activity o Phrase in a warrant – “…together with other fruits, instrumentalities, and evidence of crime at this time unknown” was not held to be too broad – (Anderson v. MD) Location of items o If an officer has PC to believe that evidence is at a specific location, they can obtain a warrant – this reasonableness depends on factors like: The type of crime The nature of the items sought The suspect’s opportunity for concealment Normal inferences about where criminals might hide evidence o Zurcher – holds that police can search the home of a 3rd party, so long as there is PC to believe that evidence is located there Place to be searched – must be described with “reasonable particularity” o “3rd floor apt.” held sufficient when the officers weren’t aware that there were 2 apts. On the 3rd floor o Typically, “premises” pertains to all areas of the premise – the big caveat here is that the area searched must be able to contain the item sought. i.e., police couldn’t search a bread box for a shotgun o Searches of law offices are per se unreasonable unless the lawyer himself is suspected of wrongdoing, or there is a threat to destruction of the records o However, where the warrant described the thing to be seized as Ramirez’s house, this was deemed too vague If there is an overreaching clause in a warrant, the doctrine of severability allows it to be stricken w/o invalidating the entire warrant Warrant must still be reasonable – couldn’t obtain a warrant to have a bullet removed from an individual through surgery Warrants typically must be executed during daytime hours, but exceptions area made for drug arrests, etc. In some situations, courts have granted “anticipatory warrants” – i.e. a warrant that is valid only if certain proscribed events transpire – the rational here is that it is better than having the officers rely on the exigent circumstances exception if these events occur
EXECUTION OF THE WARRANT Knock & Announce Req’t – officers must knock & announce before entering a residence. This is required by the reasonableness clause of the IV Amend. Officers are permitted to break in outer doors/windows to execute a warrant, if he announces his authority and is then refused admittance TO APPLY OR NOT APPLY THE WARRANT CLAUSE ARRESTS IN PUBLIC
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Basics o MPC § 120.1 – A law enforcement officer may arrest a person w/o a warrant if the officer has reasonable cause to believe that such a person has committed: A felony, or A misdemeanor and the officer has reasonable cause to believe that such person: Will not be apprehended unless immediately arrested, or May cause injury to himself, others, or property unless arrested, or A misdemeanor or petty misdemeanor in the officer’s presence o Deadly Force – To prevent flight/escape, and The officer has reason to believe that the suspect poses a significant threat of death to the officer and/or others Should give a warning if possible o Excessive force is determined on a reasonable scale – factors may include resisting arrest, violence by the suspect, etc. This independently violates the IV Amend – seen as unreasonable Arrests in the home – o Payton Rule – Entry into a suspect’s house to arrest is unreasonable in the absence of a warrant, or exigent circumstances A warrant for an arrest, however, carries with it a limited authority to enter a dwelling where the suspect lives to arrest him Caveat: warrantless arrests are not permitted just b/c the Payton rule doesn’t apply – still need an exception This rule applies to hotel rooms o Homes of 3rd Parties – Search warrants are required to arrest a suspect in the home of a 3rd party. The rights of the 3rd party are not sufficiently protected by an arrest warrant, b/c police can enter on other grounds and seize evidence illegally seized in his home Overnight guests – MN v. Olson – Payton rule applies Temporary visitors – MN v. Carter – there is no reasonable expectation of privacy, and an arrest could be proper w/o a warrant – Factors – Commercial nature of the stay The short period of time on the premises Previous connection b/t D & homeowner
STOP & FRISK Also known as a Terry stop – the general rule – o An arresting officer can make a quick stop and frisk based on reasonable suspicion of criminal activity and that the suspect is armed & dangerous.
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This is a limited s/s, but its reasonableness is determined by balancing the need for the search w/ the privacy interests of the person. Here, the need for the search is justified by the interest in protecting the officer, and the search is non-intrusive & minor. o 2 issues here – Was the gov justified in invading the person’s interest – an objective test, based on reasonable suspicion of the police that criminal activity is occurring Was the search reasonably w/in the scope of that justification? o Scope – to discover weapons, etc. on the suspect’s person. Should be done in the most quick/efficient and the least intrusive manner However, if officer finds drugs these are not necessarily suppressed, b/c you look at the officer’s objective intent during the frisk Some basic rules/limits – o Informant tips can create RS – not dependent on the officer’s own observations o Cars – If officers legally stop an automobile – They have an automatic right to order both the driver and the passengers out of the car They have the right to move anything that may be blocking the VIN number When does a seizure occur? – the line b/t “Stop” & “Encounter” o Officer can order occupants to remain inside the home during a search – this lessens a risk of flight & prevents destruction of evidence Muehler v. Mena – not per se a seizure when officers handcuff the suspect. Look at the surrounding circumstances – how many officers were there, is there a heightened risk of danger/flight, what are you searching for (weapons), etc Mere questioning during that detention does not turn it into a seizure. Overly intrusive questions could, or if the questioning extended the length of the detention o Bus Sweep – US v. Drayton Officers can ask (w/o RS) for ID or request consent to search luggage, as long as they don’t’ induce cooperation through coercion Mendenhall “Free to Leave” test – A person has been “seized” w/in the meaning of the IV Amend only if, in view of all the circumstances surrounding the incident, a rx person would have believed that he was not free to leave The relevant focus in this case is on whether the suspects consented – found to have consented & voluntarily allowed the searches Some dicta about how the 2nd search could have been supported by RS, but not analyzed b/c suspect consented Factors that were not controlling
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The officers did not tell the suspects that they were free to leave There was an officer posted at the front of the bus The officers were armed o The gov seizes an individual only when they “terminate the individual’s freedom of movement in the manner in which they intended” – Brower – roadblock, suspect crashes into it – considered a seizure o The Supreme Court has articulated 2 types of seizures – When the officer physically touches the suspect – Mere grasping / application of physical force is sufficient A non-physical show of authority – this requires: That a reasonable person would not feel free to leave The suspect actually yields to that authority i.e. mere pursuit of a suspect does not equal a seizure Reasonable Suspicion – o Compared to PC RS – requires a “fair possibility” of wrongdoing / PC – requires a “fair probability” of wrongdoing Similarly to a PC analysis, the court looks at – The source of the info, and The sufficiency of the suspicion Since we are dealing with a lower standard, there is an implication that RS can be established w/less info than needed for PC, and from info that is less reliable Basically, apply the Gates test to a Terry S/F, but not in as strict a manner Florida v. JL – “black male on street corner” from anonymous, unverified source is insufficient – even under T of C analysis o Quantum suspicion – the officer must have a particularized & objective basis for suspecting the particular person stopped of criminal activity. 2 elements Decisions are made based on all of the circumstances o Objective Observations, info from police reports, typical police inferences, modes/patterns of certain criminals o These are probabilities, not hard certainties These circumstances must raise suspicion that the particular individual being stopped is engaged in wrongdoing US v. Arvizu – driving on road near Mexican border – Court rejects the process of analyzing each factor individually to determine RS – instead determines this based on T of C “Mere hunches” are not enough – even to quantify RS o US v. Hensley – the power granted by Terry may also be extended to the investigation of completed crimes –
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Also uses the “collective knowledge” doctrine – officer/dept. can make this stop if another officer/dept. had RS & asked for assistance Other Considerations o Profiling This is a concept of using certain characteristics as a basis for ID certain criminals The Court held that a use of a profile is not dispositive. Its use weighs no differently than any other evidence o Flights from police – An individual declining to be questioned by police cannot be suspicious, or used in a RS analysis Unprovoked flight from an officer is not mere refusal to cooperate, and thus can give rise to RS – but not always Protective Searches beyond the suspect’s person o Michigan v. Long – permits a limited examination of an area from which a person, whom police believe to be reasonably dangerous, might gain immediate control of a weapon Not all states have adopted this rule o Protective Sweeps – Maryland v. Buie – a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers, or others Officers must have RS that a dangerous person might be hiding in the premises May extend only to a cursory inspection of those places where a person could be found & can last only so long as to dispel the RS of danger Brief & Limited Detentions – the line b/t “stop” & “arrest” o FL v. Royer – applying the Mendenhall test D approached in the airport, officers ID themselves as narcotics agents, told D that he was suspected of transporting drugs, asked him to accompany them to police room, and retain his ticket & DL w/o any indication that he was free to leave – effectively seized under Mendenhall (i.e. arrest) Court looked at: The time of the stop – should be no longer than necessary The method – should be the least intrusive available The burden is on the state to show that the stop was limited in time/scope so as to avoid IV Amend concerns There are circumstances where safety & security concerns might justify the movement of a suspect Forced movement of a suspect a short distance for ID purposes has been found to be ok o Ohio v. Robinette – police legally stopped D for speeding. After citation, he asks suspect whether has drugs, etc. D says no. Officer asks to search car. D allows
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Court rejected the idea that the officer had to tell the suspect that he was free to leave before questioning. This does not preclude the possibility of obtaining consent Interrogation & Fingerprinting o Kaupp v. Texas – a forced transportation & interrogation of a suspect constitutes an arrest for which PC is required 17 year old boy taken in underwear at 3 am to station for interrogation but respond okay to go w/ officers o Fingerprinting is typically classified as a Terry stop If coupled w/ interrogation &/detention – becomes an arrest You always need at least RS to fingerprint Other concerns w/ Terry Stops o Time limits – US v. Sharpe Court rejects an absolute time limit – appropriate test is “whether police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain D There is a point which would convert a stop to a seizure – court uses language of reasonable time o Show of force – Oliveira v. Mayer 3 black men spotted handling expensive camera in beat-up car w/out of state plates in a rich neighborhood. Police receive a call & engage in “felony” stop procedures – loud speaker, guns drawn, etc. – too much force to constitute a Terry stop Relevant factors Any oppressive elements of encounter b/t D & police Evidence of a crime Knowledge of armed/dangerous Again this doesn’t necessarily turn the endeavor into an arrest – independent violation of IV amend b/c unreasonable o ID of suspect – Hibel Requesting ID is not a seizure per se, and a brief questioning would be valid, pursuant to RS Officer can detain a person when he believes that a crime has been committed, but only to ascertain his identity, and the circumstances around him – the individual need ONLY ID himself – not answer any other questions Detention of Property o Basically – a reasonableness question based on T of C E.g. detaining a package for a day while an investigation is made to develop PC & obtain a warrant Could become unreasonable at some point o Detention of luggage for an extended period of time has been seen as a “detention of the person themselves”
SEARCH INCIDENT TO ARREST
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Basics – the “Arrest Power” Rule o This is an exception to the warrant requirement. The officer is making an arrest (which must be based on PC) and has a limited authority to search the D This is not a Terry S/F, and requires PC, not just RS This search could be incident to a warrantless arrest, as well as one w/ a warrant (but there has to be PC) o The searchable area is that “w/in the immediate control of the D” This is the “grab area” – includes the D person, and any area into which the D might reach Two justifications for this search – To remove any weapons (protection’s sake) To prevent the removal/destruction of evidence Applications: o US v. Lucas – police had already secured D, and then searched cabinet that D was reaching for. 2 other men in room Court emphasizes the presence of others which gave particularized suspicion & specific concern & allowed the search as incident to arrest o Davis v. Robbs – police had already secured D in the squad car. They then proceeded to search the area in the house where he was arrested Court says that search is OK (Majority rule) – since the officers would have been able to search the area at the time of arrest, they can search it after securing the suspect There is a minority which wouldn’t allow a search except at the time of the arrest o Officers are not permitted to create “grabe areas” – i.e. bringing the suspect into the vicinity of somewhere they want to search o Chrisman – post arrest movements – if an arrest has occurred, the officer can follow the suspect, stay at the arrestee’s elbow & follow – based on the inherence of danger in the arrest situation States can limit this right – and allow warrantless entry only on specific facts which would justify it – i.e. threat to safety, fear of escape The search was ok – he had consent – the issue is whether or not the officer could invade the home of D after an arrest o Butler – broken glass, barefoot. Follows inside to get shoes, and searches. Court held that officer acted out of concern for D. Also cited cases which allow officers to conduct a limited entry into an area for the purpose of protecting the health & safety of the suspect. Arrest leading to Exigent Circumstances o Police may have the ability to extend the search area by demonstrating exigent circumstances at the time of arrest – they need to show: A reasonable belief that 3rd persons are w/in a private dwelling A reasonable belief that 3rd persons are aware of the arrest, so that they might destroy evidence
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o The arrest alone does not lead to EC Vale – police try to search house after D arrested on front steps. Search not OK o Terry protective sweeps can be made, even in the absence of EC Other considerations o Timing of Arrest & Search The arrest doesn’t need to happen first, if it follows quickly on the heels of the search PC must exist for the arrest prior to the search – if the search leads to the PC which allows the arrest, then by definition, it cannot be a search incident to arrest o Removal from the Arrest Scene – square these (just distinction of person/property) Chambers – search of impounded automobile after arrest not considered “incident” Chadwick – Search of footlocker, at police station, 90 minutes after arrest not “incident” Once an accused is under arrest & in custody, then a search made at another place, w/o a warrant, is simply not incident tot eh arrest Edwards – post office. Search of D next morning is considered “incident” “S/S” that can be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention” o A custodial arrest based on PC carries w/ it the ability to conduct a full search of the individual, w/o separate, specific factual basis for doing so – Robinson o Atwater – police can arrest for minor offenses. No distinction b/t misdemeanor, felony, etc. – Court adopts a bright line rule to avoid confusion Arrest Power & Automobiles o If an officer makes a lawful arrest of the D in a car, he may search the passenger compartment of the car, as incident to that arrest Also has the ability to examine the contents found w/in the compartment (i.e. leather jacket, glove box, etc.) This is not expanded to the trunk of the car (outside the “Grab Area”) – contrast this w/ the general automobile exception o This is permitted even if the suspect is a recent occupant of the car (the car is w/in the reach of the D) – even though the suspect is not in the vehicle at the time of arrest Arrest Power w/ No Arrest – o Knowles v. Iowa – suspect pulled over for speeding. Officer issues citation, even though he could have arrested him
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Cannot conduct a search incident to arrest just b/c he could have arrested him. By deciding to issue a citation, he forgoes his right to that search Pretextual Stops & arrests o The subjective intent of the officer does not matter in an arrest, as long as they have PC. They only need an objectively justified reason for stopping the car – their subjective motive is irrelevant. (Whren v. US)
PLAIN VIEW & PLAIN TOUCH SEIZURES Plain View doctrine – if officers have a right to be in a particular place & come upon evidence that they have PC to believe is subject to seizure, they can seize it (i.e. in plain view) Coolidge o The evidence need not be inadvertently discovered to be seizable – i.e. no examination of the officer’s subjective intent o The PC to seize the object must be apparent – must exist w/o the necessity of a further search (i.e. moving a turntable) Horton – police have warrant to search for rings. Also subjectively looking for weapons used in the crime. If they come across the weapons in the search for the rings, we’re good – if they find the rings, then the guns, this would be improper Hix – Even a cursory search requires PC – moving stereo for # Plain Touch Doctrine – PC could be determined to seize an object through a valid Terry frisk. However, the PC must be determined solely through the pat down – a further search of the object to establish PC would invalidate this concept Dickerson – Terry frisks can only be done for the protection of officers – a search for evidence requires PC. Thus, you need RS for Terry frisk, which could allow a “plain touch” seizure – this could establish PC for arrest, which would allow “Arrest Power” search – continuum AUTOMOBILES & MOVABLE OBJECTS The broad rule here – police may search an automobile w/o a warrant, so long as they have PC to believe that it contains evidence of criminal activity o Known as the “Carroll doctrine” o The context here is NOT incident to lawful arrest Acevedo – rejects the distinction b/t the car & containers w/in the car. If you have PC to search the car, then you can search packages w/in it. If you have PC to search a container w/in the car, you can search the entire car Delay – if police have authority to search the object (i.e. package found in the trunk), they can wait a period of time to conduct it – doesn’t have to be on the spot. The court will not allow an indefinite period of time, however Passenger’s property – if PC justifies the search of a lawfully stopped vehicle, it also extends to the property (containers) of passengers as well. The individual does not have to be suspected of the crime, but the container must be capable of concealing the object of the search. o Is there a split here that we need to know?
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EXIGENT CIRCUMSTANCES – these are situations which are so exceptional (including admin searches) where the court has held that a warrant is not necessary, and courts do not require a warrant, but still need reasonableness & PC Basic applications – the essential question – are the officers confronted by an “urgent need” to render aid or take action? o Hot Pursuit – if the police are chasing after a suspect, it is unreasonable to require them to stop & obtain a warrant There must be some level of concern that the suspect will get away, pose a danger, or destroy evidence The suspect must be aware of the pursuit o Police & Public Safety – if the delay incurred by obtaining a warrant would pose a significant risk of harm to the police or members of the public E.g. in the OJ case – officers discover body & rush to the Simpson house for fear of the family’s safety o Risk of Destruction of the Evidence – The biggest problem here is showing an imminent threat of destruction Illinois v. MacArthur – prohibiting entry while a warrant is obtained If police have PC to suspect a crime, they may prevent a suspect from reentering premises (for a reasonable period of time), if they reasonably believe that evidence will be destroyed This requires a balancing of the public/private interests along IV Amend reasonableness standard ADMINISTRATIVE SEARCHES These are searches whose underlying purpose is not to obtain evidence of a crime. A reasonableness balancing test is required here – the need for the search, the degree of invasion, and any personal rights that the S/S would entail If the only purpose is to obtain evidence of a crime, a warrant is then required Safety Inspections of Homes o Still require a warrant – but not a particularized warrant requiring PC that a specific home was in violation of a code. Area-wide inspections are OK. o Issuing officer need only decide whether an established inspection policy exists, and whether the inspection sought fits w/in that policy Factors can include passage of time, or the nature of the building Probation Officers – can conduct warrantless searches of a probationer’s home, upon RS of a probation violation (since PC is not required b/c of diminished expectation of privacy) Searches of Businesses o Gov has an interest not only in whether the structure is safe, but also in whether the business is being safely & properly conducted o New York v. Burger – imposes 3 requirements to permit such a search –
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There must be a substantial gov interest supporting the regulatory scheme The inspection must be necessary to further the regulatory scheme The program must, in terms of certainty & regularity, provide a constitutionally adequate substitute for a warrant o As long as a search meets the above criteria, it’s Ok if it also serves a criminal purpose (discovery of evidence) even if considered pretextual o Be aware that some “searches” of businesses are not searches at all – e.g. if they occur in a public area (open to the general public) ROADBLOCKS & CHECKPOINTS Individual Stops w/o suspicion o Not OK – DE v. Prouse – officer could not stop an automobile w/o RS to check his license & registration Permanent checkpoints – o Court has approved stops at borders to check for illegal aliens o The state has a compelling interest, and the stop is seen as minimally intrusive o Motorists are not surprised & this also limits officer discretion in the place & time of the roadblock Temporary DUI Checkpoints – o Sitz – these checkpoint & roadblocks are OK – there is a compelling gov concern to eradicate drunk driving – the focus is on roadway safety o All motorists must be stopped at checkpoint – this limits the sense of intrusion Temporary Drug Checkpoints – o City of Indianapolis v. Edmond – did not allow such a roadblock b/c the primary purpose was to detect someone committing a crime o Court looks to subjective intent, b/c the focus is on the underlying regulatory scheme and its purpose o Courts have upheld checkpoints where the primary purpose effectuates needs beyond law enforcement, even if there is a secondary purpose of drug interdiction Checkpoints to Obtain Info about a Crime – o Illinois v. Lidster – court has upheld such checkpoints b/c – The goal here is to obtain info about a separate crime. It is not a checkpoint that is trying to stop people who are currently committing a crime Reasonableness balance – public concern was grave & the stop furthered the concern, while the private intrusion was minimal. CONSENT SEARCHES A search based upon voluntary consent is reasonable even in the absence of a warrant or any articulable suspicion. Consenting to a search is not considered a waiver of a constitutional right – which must be intelligent, voluntary, and knowing. Rather, a search made pursuant to voluntary consent is considered a reasonable search under the IV Amend. The
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Gov must show by a preponderance of the evidence that the consent was voluntary under the totality of circumstances. Factors Relevant To Voluntariness o Schneckloth v. Bustamonte – Officer stopped a car for traffic violation. Six people in car. Asked an occupant if he could search the car. Man agreed and opened trunk. Later, he objected that his consent was involuntary b/c he never knew he had a right to refuse. Court distinguished waiver from consent. Waiver is determined by whether D knew his right and voluntary decided to forego that right. Consent does not have to have knowledge, test focuses on whether the consent to search was voluntary under the totality of circumstances. Burden of Proof – State has the burden of showing that consent was voluntary by a preponderance of the evidence. Factors Relevant to Voluntariness – Courts must analyze whether a person’s free will to refuse consent was overborne by police coercion. o The Right to Refuse Consent – The lack of a warning informing the suspect that he may refuse consent is simply a factor to be considered in the “totality of the circumstances.” o US v. Gonzalez-Basulto – six factors relevant to whether consent is voluntarily obtained: The voluntariness of the D’s custodial status The presence of coercive police procedures The extent and level of the D’s cooperation with the police The D’s awareness of his right to refuse consent The D’s education and intelligence The D’s belief that no evidence will be found o Threat of a Warrant – Does it render consent involuntary? Depends on the facts False Statement Concerning the Possession of a Warrant Renders Consent Involuntary Similar result where police received consent after incorrectly asserting or intimating that they have the right to make a warrantless search under the circumstances Genuine Expressions of Intent to Obtain a Warrant Do Not Render Consent Involuntary Baseless threats to obtain a search warrant may render consent involuntary, but genuine intention to obtain a warrant does not vitiate consent, i.e., where the police have PC o Use of Force Determined on a case-by-case basis. Woman ordered to the ground consented after she was helped up and told she was not under arrest. o When the Suspect is In Custody
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US v. Watson – Court applied the principles of Bustamonte and held that the fact of custody alone is not enough to demonstrate that consent was coerced. Watson has been extended to permit consent searches that are obtained at the police station. o Requests for Consent Less coercive than demands. US v. Mendenhall – D agreed to accompany police to their airport office and to allow them to search her purse and her person. Police simply asked her to accompany them. She was informed twice she was free to decline consent. US v. Jaras – Officers opened D’s suitcases without asking permission. D appeared to acquiesce – not enough. o The Character and Emotional State of the Suspect Suspect’s lack of education relevant to involuntariness Jones – D, convicted felon, did not consent when 3 police cars stopped him and he was not informed of his right to refuse consent. Suspect’s impaired mental or emotional condition does not necessarily render consent involuntary US v. Hall – D claimed she did not voluntarily consent to the search of her bag b/c she possessed a low- average IQ, ninth grade ed., psychological probs. Police did not inform her of right to refuse. Court found D’s consent voluntarily obtained. o Suspect’s Belief That Evidence Would Be Found – Ds argue that their consent could not have been voluntarily obtained b/c they knew before the search that the police would find incriminating evidence. Court rejected this argument in Mendenhall, saying that “the question is not whether she acted in her ultimate self-interest, but whether she acted voluntarily.” o When Evidence Is Well-Hidden – held by most courts to be relevant to the voluntariness of the consent. Suspect is more likely to consent voluntarily. Third Party Consent – Third party may consent to the search of an area in which a suspect has an expectation of privacy, if the third party voluntarily consents to the search and has authority to consent to the search of the area. o Rationales for allowing Third Party Consent If third parties have access or control over a private area, they have an independent privacy interest in that area and an independent right to forego such interests. B/c the suspect has granted a third party access to a private area, the suspect has assumed the risk that the third party may consent to a search o Limited Access May Restrict Authority To Consent to a Search Areas of Access – Roommates in a shared apartment – may have areas of exclusive control – others may not consent
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Marital Relationships – presumption of common authority over premises jointly occupied by both spouses. Burden is on the D to show that the consenting spouse was denied access to that area. Consent by parents and children – most courts say parents can and children can’t Retention of Ownership Interest US v. Davis – consent to search a footlocker from D’s friend, who told the officers that he had given the D a key to his apartment and that the D had left some belongings in the footlocker. Court held valid consent. Presence of D and D’s refusal to Consent When D objects, third party consent is invalid Third Party Must Possess Actual Or Apparent Authority Scope of Consent A search beyond the scope of consent cannot be justified as a consent search. Florida v. Jimeno – Scope of a consent is determined by a standard of objective reasonableness. Court held that an officer could rx conclude that when a suspect gave general consent to search his car, he also consented to a search of a paper bag lying on the floor of the car. “The scope of a search is generally defined by its expressed object.” After Jimeno, it is up to the citizen rather than the officer to clarify any ambiguity concerning the scope of the consent. Withdrawing Consent Consent cannot be revoked retroactively after the officer has found incriminating info. In Carter, police could take Carter’s peculiar way of retracting consent into account, independent of the withdrawal of consent, as part of the totality of circumstances. Refusal to give written consent does not revoke an oral consent.
REMEDIES FOR IV AMENDMENT VIOLATIONS – the Exclusionary Rule The basic Rule – evidence obtained in violation of the IV Amend is inadmissible. o This is extended to the states through the XIV Amend – and Mapp v. Ohio The party must have had a reasonable expectation of privacy – i.e. the IV Amend must have applied to him in the 1st place (go back to MN v. Carter & temporary visitors) o The party must have standing to exclude evidence Attenuation – typically a violation of the IV Amend taints the processes that follow it – the “fruit of the poisonous tree” – this doctrine allows subsequent evidence to come in when it is so far removed from the misconduct, that there is an insufficient connection b/t them o Brown v. Illinois – Police arrest Brown w/o PC. Take him to the station. Mirandize him twice. He confesses
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The confession was not sufficiently attenuated from the illegal arrest & thus is still the fruit of the poisonous tree o Wong-Sun – Police illegally arrest D. Lawfully arraign & release him. He returns several days later & makes confession to police The confession had been attenuated & was not “fruit of poisonous tree” o Has the subsequent evidence/confession been purged of the primary “taint” – courts consider such factors as – (a) Whether Miranda warnings were given (b) Temporal proximity of the arrest & the confession – the longer, the better (c) Presence of intervening circumstances – the more the better (d) The purpose & flagrancy of the official misconduct o Miranda warnings do not per se break the chain of causation Independent Source Doctrine o If the police would have discovered the evidence anyway, from a source independent from the taint, the evidence is not inadmissible This applies to evidence first discovered during an illegal search, but would have been later obtained through means untainted by the illegal activity o E.g. – if police find x & y unlawfully, and then find out z through separate, lawful means. Z is admissible. o Murray v. U.S. – police believe EC exist to search warehouse. Later found to be wrong. In the course of the search they discover bags of pot. They realize EC don’t apply – go get a warrant founded on PC (w/o using any knowledge obtained during the illegal search) – then “Rediscover” the bags of pot. Evidence found admissible. Police could not have used the information from the illegal search to obtain the warrant – this would not be independent. There, police have to convince the court that not only could they have obtained a warrant w/o the illegal activity, but also that the would have. o Inevitable Discovery – (Nix) Also known as the “hypothetical independent source” doctrine If the police would have discovered the evidence anyway, w/o the improper conduct. E.g. – police obtain an illegal confession as to where a body is located. However, there was a search party underway which would have discovered it anyway – evidence allowed in. Theory – don’t want to put the police in a better position that they would have been in, but don’t want to put them in a worse position either. Good Faith Exception – o An officer’s GF, proper reliance on a warrant which is later found to be invalid does NOT require suppression of the evidence. o This does not APPLY if:
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(a) The magistrate abandons his neutral/detached role (b) The officers are dishonest, or willfully blind, in their affidavit (c) The officers could not have harbored an objective belief or PC o Many states do not adopt this exception, and afford individuals more protection. V AMENDMENT LIMITATIONS – CONFESSIONS The Basics – an individual cannot be compelled in any criminal case to be a witness against themselves Miranda Warnings – applies the concept of self-incrimination to any custodial interrogation against the suspect o Prior to any custodial interrogation, officers must read these rights: 1) The right to remain silent 2) An explanation that anything he says can & will be used against him in a court of law 3) The right to counsel 4) If he can’t afford counsel, such will be provided & appointed o General, on-th-scene questioning is still OK in the absence of these warnings o Cessation of Interrogation – if at any time, D indicates that he wishes to remain silent, the interrogation must cease – If D indicates that he wants an attorney, then interrogation must cease until one is provided o Waiver – these rights can be waived by a D This typically requires an express statement – there must be evidence that the suspect “understandingly rejected the offer” of counsel A valid waiver will not be presumed from silence after warnings are given, or from the fact that a confession was eventually obtained Answering some questions is not a waiver – D can still invoke his rights & withdraw any waiver at the outset Dickerson v. US – Congress did not overrule Miranda and return to a T of C approach o Recognizes the possibility of circumstances where statements could be admissible in the absence of Miranda warnings Exclusionary rule & V Amend o The “fruits of the poisonous tree” does not apply to V Amend violations o Patane – officers begin mirandizing suspect – he says he knows rights. He then makes statements which lead to the discovery of a gun. He tries to suppress the evidence as the result of unwarned statements This was found to be a voluntary statement – Miranda only protects against involuntary statements If the statement were found to be coerced would the evidence be excluded?
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o V Amend does not require suppression of physical evidence obtained in violation. The suspect’s statements could not be used in court o Thus, the “fruits” of a Miranda violation can still be admissible – just not the statement itself Reviving Miranda Warnings o Seibert v. Missouri – detective is questioning suspect w/o warnings. Discovers info he wants. Mirandizes suspect & re-questions The court invalidates this “question first” approach o The essential question in such a case – whether it would be reasonable to find, under the circumstances, that the warnings functioned as intended – an effective check on interrogation did the warnings accomplish their objective? o Compare to Oregon v. Elstad – police go to man’s home. Arrest him & tell his mother what is going on. Suspect acknowledges some blame. They then take him to station, mirandize him, and obtain a confession. o Factors examined A) Completeness & detail of 1st questioning B) The overlapping content of the 2 statements C) The time & setting of the 1st & 2nd statements D) The continuity of the police personnel E) The degree that the questions are regarded as continuous w/ 1st round
VI AMENDMENT – RIGHT TO COUNSEL Massiah v. US – D had been indicted then released. Gov had co-conspirator record conversations w/him…wanted to use at trial. Held inadmissible…VI Amend violation o Rational: VI Amend recognizes that once the gov has brought formal charges against an individual, the adversary relationship b/t the parties is cemented. Once an accused has chose to retain an attorney in this process, the gov may not try to circumvent the protection afforded by the presence of counsel during the questioning Brewer v. Williams – kidnapping case o Held that waiver is possible, but requires more than comprehension of ones rights – it requires clear relinquishment of them Fellers v. US – distinguish b/t V Amend violations & VI Amend violations. Proceedings had begun. Police arrest D. He tells them statements, and is then mirandized. o District Court analyzed V Amend “unwarned statement” approach. Supreme Court correctly analyzes under VI Amend “deliberate elicitation” approach – has not yet decided if an Olstad analysis applies to a VI amend violation What implicates this right – o Invocation of the Miranda right to counsel o The beginning of judicial proceedings Identifying Suspects & Lineups
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o Wade-Gilbert Rule A suspect is entitled to presence of counsel during ID proceedings. This is a per se rule that requires exclusion of ID, unless a subsequent ID can be shown to be independently valid o Independent ID – The court basically applies the attenuation test of Wong-Sun – has the 2nd ID been sufficiently purged of the taint of the 1st? There are factors, but the basic consideration is whether the courtroom ID would have been possible w/o the initial ID? o Stovall – Improperly suggestive ID violates due process rights – e.g.: If D looks nothing like the other suspects If only 1 suspect is brought in to be ID’d by the victim Worth noting that there is a notion of permissible suggestiveness – i.e. if a suspect is asked to be ID’d on the scene to prevent the arrest of the wrong person o Manson – if the court cannot say as a matter of law (looking at all the factors) that an ID was too suggestive, the reliability of an ID is left to the decision of a jury However, even if it passes the court’s test, the jury could still say that it was too suggestive The Right to Counsel o Powell v. Alabama – counsel appointed on day of trial. SC said they didn’t get effective assistance of counsel o Gideon v. Wainwright – right to counsel is provided to all D – even the indigent – in all felonies Later extended to misdemeanors Later to any case you are actually sentenced to jail time. TRIAL Speedy Trial o Barker v. Wingo – balance test of 4 factors: Length of delay Reason for delay Assertion of Speedy trial What actual prejudice occurred? o 3 Reasons for Speedy Trial: Concern for Pre trial incarceration , concern for anxiety, loss of evidence o Doggett: Person indicted for drug offense, flees country, comes back using his own name, later discovered. Tried 8 ½ years after indictment. Lived in the country 6 years without trial. First must determine if there is a need for speedy trial. If approaches approx. 1 year, then there is a presumption of prejudice. You are entitled to a Wingo hearing to do the balance test. Court found violation of speedy trial rights. Trial By Jury – 6th amendment guarantees right to trial by impartial jury by state and district in which the crime was committed
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o Duncan v. LA – Right to Trial by Jury is fundamental meaning that it’s made applicable to the state due process laws by the 14th. Rights are same in Fed as in State. One exception is trial by jury. o Fed Law: 6 months or less: Petty Offense: No Jury Trial. More than six months and serious crimes: Jury Trial. o Baldwin v. New York: Entitled to a jury in any case with a potential sentence of more than 6 months. o Lewis v. US: Person charged with 2 petty offenses consecutively would be a year in jail. Jury Trial? No. Gov could’ve charged each offense separately with no jury trial. o Ballew v. Georgia: 5 is not good enough. Effective Group deliberation…Memory pool… o Apodaca v. Oregon: 4 justices say unanimous verdicts not required. 4 justices say they are. Powell says the 6th amend requires unanimous verdicts, but the 6th is not fully applicable to the states. End result is: in state trial, unanimous verdicts are not required, in Fed they are. o Picking the Panel: Equal protection rights are violated if race or gender discrimination are used in picking the panel. Peremptory Challenges Lawyers don’t have to identify the reason Just can’t be based on race or gender o Jury Pool Panel from which the jury is selected (like 200) Must represent a fair cross-section of society Equal Protection Clause Not from the constitution No right to have your own gender or race in the 12, but you do have that right in the pool DOUBLE JEOPARDY Clause in the V Amend, “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” o Applies to all crimes You cannot be tried after you’ve been acquitted on the merits for the same offense o Applies to convictions for the same offense o Applies to sentences for the same offense Person convicted of manslaughter, police find new evidence, cannot then be convicted of murder Grady - Dude crosses a double double while drunk, gets a ticket and charged with vehicular homicide. Went to traffic court paid 360 bucks. Judge accepted guilty plea, not knowing of homicide charge. SC found double jeopardy when they tried to try him for homicide. (later reversed the logic of this case)
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Joyriding and Grand Theft Auto – have to be convicted of one or the other (Joyriding is a lesser included offense) Can be charged with both, but convicted of one. Same offense o Can of worms – Not covering it in class o Discussed on 1534 o Have to know the elements of the crime o Same offense unless each of the crimes have a separate element not in the other. o Greater includes lesser, lesser includes greater – all we have to know Double jeopardy does not apply to conviction of separate offenses o You kill 20 different people, you can be tried separately for each murder o Sometimes prosecution will try some of the murders, and wait for conviction – if not convicted, then they will try the other murders o Collateral Estoppel Still may apply to issues in different cases Double Jeopardy is: o There’s been a finding of not guilty on the merits by the jury or a determination on the merits by the judge that the person is not guilty. Once they make this determination, jeopardy attaches, cannot be tried again. (cannot appeal on the merits) Does not matter how screwed up the judge or jury was If the judge lets the case go to the jury and jury says “guilty,” then the judge JNOVs, then the prosecution can appeal to overturn the judges ruling Double Jeopardy is NOT: o Does not apply to any dismissals prior to jeopardy attaching Attaches at a different time in jury trials than in judge trials Attaches in jury trials when jury is impaneled (takes the oath). Attaches in judge trials when the first witness takes the stand and takes the oath. o Does not apply to trials called dual sovereignties. If you’ve been tried by the state, the feds can try you for the same offense Crime that involves more than one state – one state tries you – another state can try you no matter what the outcome. o Does not apply to instances in which the suspect has been convicted but obtains a reversal on appeal Once you have been convicted, if you get a reversal, you can be tried again. (Defendant chose not to let the conviction rest) Might get a harsher sentence than in the first (D takes that risk) Basis of Reversal If reversal is based on trial error – can be retried If reversal is based on insufficient evidence – double jeopardy attaches
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o Exception: Weight of the evidence – means that the appellate court thinks that there was enough evidence to convict, but the trial court got the conviction wrong – can be retried. o Does not apply in some instances even AFTER jeopardy attaches – mistrials, dismissals If the case has started – jeopardy attaches – something happens and there’s a mistrial – if D moves for mistrial – prosecutorial misconduct – prosecution can retry. Unless the D can prove that prosecution did it on purpose (egregious conduct with intent to goad D into moving for mistrial) – then can’t be tried again If prosecution asks for a mistrial, or the judge on his own motion, then test used is called manifest necessity If the court decides that a new trial is necessary to prevent a violation of public justice then new trial is allowed Bottom line: If grounds for mistrial is a hung jury, then manifest necessity says person can be retried. If grounds for P or D motion is misconduct by D or D’s attorney, then manifest necessity says retried. Shit happens after jeopardy attaches (asks for mistrial cuz prosecution is unable to try for whatever reason), manifest necessity says NO NEW TRIAL If there is a dismissal while the trial is going on – trial court may be wrong – for reasons unrelated to guilt or innocence, prosecution can appeal – win appeal – get new trial. Dismissals after jeopardy attaches, not on the merits, then jeopardy does not apply (pre-trial delay, publicity, etc.)
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