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I. The Fourth Amendment A. The Exclusionary Rule & Non-Exclusionary Remedies 1. Fed govt. required exc. rule since 1914 (Weeks) – but didn’t apply it to the states (Wolf) 2. Exc. rule applied to states through 13 th A – every right must have a remedy (Mapp, p. 336) 3. Justifications for exc. rule (they’re weak) a) Privacy – only works for the people generally, not individuals b) Judicial integrity – ct can’t get complicit in bad policing, but don’t want ct keeping facts away from jury c) Deterrence – exc. rule supposedly prevents 4 th A violations – but doesn’t deter too much (1) But this assumes the police will comply w/ rules & tell the truth at hearings 4. Alternatives: a) Disciplinary action b) Criminal prosecution c) Civil damages for trespass – but not usually any damage – and the cop was just doing his job d) § 1983 – scant damages, q. immunity, victims don’t make good witnesses, etc B. Does the Fourth Amendment Apply? – the first 4th A moment 1. What is a “Search”? a) If it’s a search, must be reasonable – probably means warrant b) Did govt. violate privacy upon which D justifiably relied? (phone booth protected – Katz, p. 349) c) Focus on people and what they’re doing, not places d) One-party consent electronic transmissions of conversations are not searches (informant – White, p. 368) (1) Talking about illegal activity = assuming the risk of friend blabbing e) Trespassing outside curtelage (in open field) != search (Oliver, p. 358) f) Flying over backyard at 1000’ != search (Ciraolo) g) Flying over greenhouse at 400’ != search – knowing exposure idea (Riley, p. 361) h) Can’t get legitimate warrant using EE from an unreasonable search (nature of exc. rule) i) Person on public rd has no reasonable expectation of privacy in his movements (beeper – Knotts, p. 379) j) Home is sacred – it becomes a search when beeper crosses threshold (Karo, p. 379) k) Can info be found another way? If yes, technology use doesn’t matter l) Trash – not a search (animals, kids, snoops can look in it) (Greenwood, p. 374) m) Thermal imaging into house = search (Kyllo, p. 387) (1) Textual hook – home (2) Technological hook – more than the naked eye (3) Couldn’t otherwise be obtained w/o clear intrusion n) Sniff test by drug dog != search – un-intrusive, only reveals contraband (Place, Caballes, s 59) o) Factors to consider: (1) Nature of place being searched (2) Location of cops who make observations (3) Physical intrusion or trespass (4) Physical intrusiveness (5) Naked sense v. technologically enhanced (6) Nature of info observed (7) Social norms that surround behaviors (8) Precautions taken by suspect (9) Knowing exposure / assumption of risk (10) Other ways to obtain the info (11) Language of the 4th A (home, person, paper, effect) 2. What is a “Seizure”? a) Seizure of property – about possessive rights – taking, holding, preventing use b) Seizure of people – about autonomy – not all encounters are seizures c) Putting beeper in can != seizure (Karo) d) Test – would reasonable person believe he’s free to leave? e) Totality of circumstances: guns, touching, # of officers, language used, tone of voice f) Stopping lady in airport out of gut feeling re drugs != seizure (Mendenhall, p. 404)
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g) Sweeping factory floor, questioning everyone w/ agents at door != seizure (Del Gado) – must have guts! h) Ask if D could refuse the search (bus sweep – Bostick, p. 394) i) People can refuse consent, unless officers indicate otherwise, other than cop indicia (Drayton, p. 399) j) Need compliance w/ show of authority to be a seizure (D drops crack during chase – Hodari D., p. 406) k) Basic rules: (1) Seizure must be intentional (Brower) (2) Seizure hasn’t taken place unless reasonable person wouldn’t have believed he was free to leave – cops don’t have to say suspect can refuse to consent (Terry-Mendenhall rule w/ Bostick-Drayton gloss) (3) Must have either physical force or show of authority + submission (Hodari D.) C. Warrants and the Meaning of Probable Cause 1. What is “Probable Cause”? a) Quantum of EE – amt of reason you need to search / seize b) Required for any warrant to issue c) Two prongs for informants – reliability of informant + basis of informant’s knowledge d) Test = totality of circumstances – practical common sense that there is a fair probability (Gates) e) PC does not extend to everyone in the area (bartender & bar only – Ybarra, p. 445) f) Reasonable to infer common goal of everyone in a car – but not if one confesses (Pringle, p. 442) g) PC just has to exist for a crime at time of search / seizure (Alford, s 69) 2. The Warrant “Requirement” a) Why? – ex ante, neutral magistrate, advance limits for cops, follow-up notification of what cops did b) Two levels of reasonability: getting the warrant + executing it c) Execution test = govt. interests outweigh individual d) Holding suspect at gunpoint in handcuffs while searching – reasonable (Mena, s 80) e) Knock & announce – rule for execution – knock, announce police & warrant (1) Exceptions: fleeing felon, officer safety, evidence destruction (2) Cops breaking in w/o announcing, finding gun & cocaine – no exclusion (Hudson) 3. Exceptions to the Warrant “Requirement” a) Exigent Circumstances (1) This is a justification for other exceptions too (cars, search incident to arrest, etc) (2) Potential harms motivate exceptions: safety (officer, bystanders), destruction of EE, fleeing suspect (3) Focus on the harm happening, not the crime (4-day search not reasonable – Mincey, p. 463) (4) Don’t worry about cop’s motive, just about harm (Stuart, s 90) (5) Gravity of the offense can be considered (naked DUI guy not reasonable – Welsh, p. 470) (6) Search must be limited to the exigency in time & scope (7) Reasonable to detain suspect outside home while waiting for drug warrant (McArthur, p. 475) (a) Small intrusion + leg. decided that drugs are serious b) Plain View (1) About seizing things (2) Requirements: (a) See from a lawful vantage point (b) Legitimate right of access to the object (c) Immediately apparent that object of seizure can be legitimately seized (3) Cops moved papers to see VIN, saw & seized gun – OK (Class, p. 479) (4) Moving item itself to examine = search (stereo serial numbers – Hicks, p. 480) (5) Seizures do not have to be inadvertent (Horton, p. 485) (a) Want cops to search in logical places for things (b) But can only search where the thing could actually be c) Automobiles (1) Generally, no warrant needed for occupied cars (might not even need one for car in your driveway) (2) Cars present real exigency problem – can’t get a warrant before car is gone (Carroll, p. 489) (3) People have diminished privacy expectations in cars, which are readily movable (Chambers, p. 490) (4) But containers inside cars pose special problems
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(a) Luggage can’t be searched w/o warrant – privacy interest exists (Chadwick) (b) If PC justifies search of entire car, can search containers inside as well (Ross, Acevedo, p. 493) (c) Container can be seized on scene & searched later (5) Can search passenger belongings in car, if PC, and belongings could hold it (Howton, p. 503) (6) Balancing test – nature of individual intrusion vs. govt. interest in activity d) Arrests (1) ALL full custodial arrests are seizures, but not conversely (2) Criminal arrests require PC (3) Felony arrest (in public) on PC does not need a warrant (Watson, p. 511) (4) Need judicial determination of PC w/in 48 hours (McLaughlin, p. 515) (5) In-home arrest requires an arrest warrant – protecting home privacy (Payton, p. 516) (6) Arrest warrant doesn’t get cops through somebody else’s door (Steagald, p. 517) (7) Arrest allowed for any criminal offense authorized by state / local law (Atwater, p. 518) (8) Statute of limitations for § 1983 accrues at time of arrest (Wallace) e) Searches Incident to Arrest (1) Only search reachable area to protect safety of cops & others (Chimel, p. 532) (2) Pat down search of arrestee is allowed, even w/o PC (Robinson, p. 538) (3) Cursory, protective sweep of house OK, looking for people, not EE / weapons (Buie, p. 540) (4) Can search entire passenger compartment of car – grab-able area test (Belton, p. 541) (5) Can even search car if suspect is stopped outside the car (Thornton, p. 541) (6) But none of these rules are triggered w/o an arrest (Knowles, p. 550) (7) Inventory searches are allowed too (including trunk, etc) (Bertine, p. 549) f) Consent Searches (1) These are obviously OK, but it’s hard to explain why – people almost never refuse (2) Not voluntary when cops say they have authority to act – that would require resistance (Bumper) (3) Totality of circumstances test for voluntariness – right to refuse is a factor (Bustamonte, p. 668) (4) Don’t have to be informed that you’re free to leave (Robinette, p. 679) (5) Co-users of a property can consent to search (Matlock) (a) But separated wife can’t consent in place of husband (Randolph) (6) Apparent authority of person to consent is enough (Rodriguez, p. 676) (7) Scope – what would typical person understand from exchange btw cop & suspect? (Jimeno) D. Probable Cause & Reasonable Suspicion 1. Reasonable Suspicion – When PC is not Required a) Terry Stops (Terry, p. 557) (1) Is cop’s action justified & reasonably related in scope? (2) Cop needs specific & articulable facts which, w/ rational inferences, reasonably warrant intrusion (3) Frisks are only OK when cops have “good reason” = (a) Justifiable belief that suspect is armed & dangerous (b) Limited by exigencies (4) Practical necessity for street stops – need for preventive policing + victimless crime policing (5) Suspect can not be taken into custody & interrogated – that goes way too far (Dunaway, p. 570) (6) Can’t take suspect into separate room and search his luggage – not minimal enough (Royer, p. 571) (7) 20-minute stop is OK – brevity isn’t the only factor (Sharpe, p. 574) (8) Officer can do quick search of the passenger compartment (Long) (9) Reasonable suspicion to stop suspect on anonymous tip – indicia of reliability OK (White, p. 578) (a) But a vague anonymous tip wasn’t enough for reasonable suspicion (J.L., p. 578) (10) Standard can be low – van slows down, driver doesn’t wave, kids wave funny (Arvizu, p. 581) b) Terry & Racial Profiling (1) Context matters – courts are more generous near the border (Arvizu) (2) Running away from cops in high drug area = reasonable suspicion (Wardlow, p. 583) (3) We want cops to target people who are actually involved in crime (4) We want to tell people when they should be suspicious (5) Even though discretion could be used for racist purposes, can stop the car w/ PC (Whren, p. 597)
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2. Alternatives to PC & Reasonable Suspicion – When is Individualized Suspicion not Required? a) Suspicionless stopping at permanent border checkpoint – OK (Martinez-Fuerte) b) Can’t allow random stops for license & registration (Prouse) c) But can have a DUI checkpoint (Sitz) d) No suspicionless stops for general crime control (Edmond, p. 626) E. Reasonableness and the Use of Force 1. Two reasons to use force during arrest: achieve arrest, protect officer 2. Balance the interests! (but these factors are nutty) (Graham, p. 663) a) Severity of crime at interest b) Whether suspect poses immediate threat to safety of cop / others c) Whether suspect is actively resisting d) Whether suspect is fleeing 3. If suspect threatens cop w/ weapon or PC to believe committed crime involving serious physical harm (even threatened), deadly force is OK to prevent escape (Garner, p. 658) 4. Perspective – reasonable officer on the scene, split-second decisions = deference F. Extent and Limits of Exclusionary Remedy – When Does Fourth Amendment not Require Exclusion? 1. Good Faith Exception a) Lots of times when exc. rule doesn’t apply b) If cops rely on warrant in good faith, and it’s later held invalid, no exclusion (Leon, p. 683) c) State law allowed inspection of vehicles & records in junkyards (Krull, p. 694) d) Clerical error in warrant list does not require exclusion of EE (Evans, p. 694) (1) Don’t deter cops from bringing in suspects who have arrest warrants listed e) But warrant must comply w/ plain language of Const. (Groh, p. 695) 2. Standing a) Is the person who is trying to get EE excluded, the person whose privacy was violated? b) Look at this person, whether he has a reasonable expectation of privacy (Rakas) c) Visitor has a reasonable expectation of privacy – his temporary castle (Olson) d) No right to challenge search when seen bagging drugs through window (Carter, p. 698) e) Cops can steal briefcase of bank officer to get EE against suspect – no standing (Payner, p. 708) f) But standing requirement undermines deterrence value of exc. rule – less ability to challenge illegality 3. Fruit of the Poisonous Tree & Impeachment a) Any evidence cops obtain because of illegal search / seizure is excluded b) But what does “because” mean? c) Factors: time, voluntary, intervening acts (Wong Sun, p. 709) – people count too (Ceccolini, p. 718) d) Two parts for causation: (1) But for – because of (a) Independent source (Murray, p. 719) (b) Inevitable discovery (2) Proximate – in some way connected to & responsible for e) Even w/ violation of knock & announce rule, evidence comes in (Hudson, s 118) (1) Causation – police would’ve entered, even if they followed the rules (2) Attenuation – Scalia distorts the rule – whether Const. interests served by suppression of EE II. Police Interrogation and Confessions A. Police Interrogation and Miranda 1. Two analysis points: a) Suspect’s point of view b) Tactics themselves 2. Admissions are excluded, unless procedural safeguards in place to protect 5 th A rights (Miranda, p. 819) 3. Warnings: a) Right to remain silence b) Anything said can be used against you in ct c) Right to counsel d) Attorney will be provided, if you can’t afford one
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4. Rules: a) Invoke right to remain silent – statements after this can’t be used b) Ask for a lawyer – interrogation must cease, until attorney present c) Waive rights – burden on govt. to prove intelligent waiver 5. Interrogation must be custodial, but doesn’t have to be full arrest B. Custody, Interrogation, and Required Warnings 1. Custody a) Grand jury witnesses – under subpoena, but not custodial (Mandujano, p. 842) b) Questioning on street is not custodial – in public, non-threatening, like Terry stop (Berkemer, p. 842) c) Questioning by probation officer not custodial (Murphy, p. 843) (1) Could’ve had a lawyer (2) Not restrained (3) Familiar environment (4) Mutually agreeable time 2. Interrogation a) Definition = questioning or functional equivalent b) Test – is conduct reasonably likely to elicit response? (gun, handicapped kid – Innis, p. 845) c) Objective analysis, based (in part) on subjective characteristics of the suspect d) Not interrogation to supervise & record conversation btw husband & wife (Mauro, p. 851) e) Undercover agent in prison cell not interrogation – no police coercion (Perkins, p. 851) f) Posing as mob figure in prison & offering protection = interrogation – threat (Fulminante, p. 857) g) Being lied to regarding the nature of the right in question = interrogation (Walton) h) Routine booking questions – permissible w/o Miranda warnings (Muniz, p. 857) C. Invoking and Waiving the Right to Silence or Counsel 1. Arrest a) Suspect – admissible – not interrogation b) Officer – inadmissible 2. Warnings a) Waiver requirement – voluntary, knowing, intelligent (Burbine, p. 874) 3. Invocation a) What constitutes invocation? (1) Reasonable cop in circumstances would understand request for attorney (Davis, p. 868) b) What happens afterward? (1) Questioning stops (2) Some confessions still come in (a) Silence invoked – another cop, later interrogation about different crime – OK (Mosley, p. 861) (i) Was request to cut-off questioning scrupulously honored? (b) Counsel invoked – same cops, next day, re-warned – confession – NO (Edwards, p. 863) (i) Rules: suspect can initiate – but cops can’t initiate w/o counsel present 4. Re-initiation a) Test – almost anything more than “I want a drink of water” b) Asking “what is going to happen to me now?” = re-initiation (Bradshaw, p. 866) c) Sends us back to warnings (Wyrick, p. 886) D. Miranda’s Constitutional Status 1. Is Miranda a command or a remedial measure? a) Commonly understood to be a stmt of what 5 th A requires = constitutional decision b) If it was a command, you wouldn’t expect so many exceptions c) Ct permits voluntary stmt obtained in violation of Miranda to impeach D (Harris) d) Ct didn’t apply Miranda backward to stmt that occurred before the decision (Tucker) e) Govt. can’t use post-warning silence against you (Doyle) f) But pre-warning silence can be used against you (Jenkins) g) Public safety exception – allowed questioning & retrieval of gun (Quarles, p. 891) h) Ct won’t shut down cops b/c of trivial Miranda violation (voluntary stmt by D) (Elstad, p. 905)
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2. § 3501 – sweeps aside Miranda 3. Miranda is a Const. rule, applied to the states – can’t be overruled by statute (Dickerson, p. 893) E. Sixth Amendment Limits on Police Interrogation 1. Incriminating stmt after indictment intentionally elicited w/o attorney – deprive of 6th A rights (Massiah) 2. If you’ve been charged by information or indictment, 6 th A applies 3. If you’re in front of a judge in an initial appearance, 6 th A applies 4. Right to counsel attaches – formal charges, initial judicial proceedings 5. Once it attaches, have right to counsel when being interrogated 6. “Christian burial” speech = interrogation under 6 th A (Williams) 7. Did suspect intentionally relinquish right to counsel? (Zerbst standard) 8. 6th A violated in post-arraignment confession where D requested counsel, but didn’t get it before more interrogation (Jackson) 9. Key points to know: a) Trigger – adversarial proceeding – charge or judicial proceeding b) Relevant – governs intentional eliciting in absence of counsel c) Scope – specific offense for which 6 th A has already attached – offense w/ which charged d) Waiver – can be valid (Zerbts), but not undercover e) Exclusionary rule & fruits apply