CRIMINAL PROCEDURE

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CRIMINAL PROCEDURE Powered By Docstoc
					CRIMPRO OUTLINE
                                                    CRIMINAL PROCEDURE – Prof. Strader
                                           Southwestern University School of Law – SCALE I
                                                                    November – March, 2004
                                                                               Ted Finamore
Text: Understanding Criminal Procedure 3rd Edition by Dressler


                                                       TABLE OF CONTENTS


I.   Prosecutorial Discretion ........................................................................................................... 7
   A. What are the factors considered in prosecuting a crime?....................................................... 7
     1. Severity of the crime ........................................................................................................ 7
     2. Probability of conviction/ sufficiency of evidence............................................................ 7
     3. Factors re the Offender: ................................................................................................... 7
     4. Resource allocation of prosecutors – there are more severe crimes that should be prosecuted.... 7
     5. Public Eye - Reflects poorly on office/police to prosecute bogus crimes........................ 7
     6. Alternative Sanctions/ diversion program ........................................................................ 7
   B. Lafave: 3 reasons we need prosec discretion ......................................................................... 7
   C. Prosecutorial Discretion and Legislative Intent:.................................................................... 7
     1. Separation of Powers ..................................................................................................... 7
     2. Cf..................................................................................................................................... 7
   D. Application of the Bill of Rights to the States under the 14th Amend: ................................... 9
     1. ―Total Incorporation‖ of Bill of Rights: ........................................................................... 9
     2. ―Fundamental Fairness‖ Approach: ................................................................................. 9
     3. ―Selective Incorporation‖ of the Bill of Rights: ................................................................ 9
     4. Independent Due Process grounds: .................................................................................. 9
II. Right to Counsel .................................................................................................................... 10
   A. Constitution ....................................................................................................................... 10
   B. Cases .................................................................................................................................. 10
     1. Powell v. Alabama (1932): .............................................................................................. 10
     2. Betts v. Brady (1942): ..................................................................................................... 10
     3. Gideon v. Wainwright (1963)– ....................................................................................... 10
     4. Argersinger v. Hamlin (1972): ........................................................................................ 11
     5. Scott v. Illinois (1979): ................................................................................................... 11
     6. 18 USC § 3006A: ............................................................................................................ 11
   C. When does the 6th Amend. Rt. to Counsel Attach? ............................................................. 11
     1. criminal “prosecution”: ............................................................................................... 11
     2. a “critical stage” or formal proceeding: ..................................................................... 11
     3. Note 5th Amendment vs. 6th Amendment: ...................................................................... 12
     4. 18 USC § 3000(a) in Supp. –.......................................................................................... 12
     5. 6A and Edwards............................................................................................................. 12
   D. Appeals & the Rt. to Counsel – Equal Protection/Due Process Concerns: ........................ 12

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       1.Cases ............................................................................................................................. 12
III.   SEARCHES AND SEIZURES .................................................................................................. 14
   A. The Exclusionary Rule ....................................................................................................... 14
     1. The Constitution.......................................................................................................... 14
     2. Constitutional History – Application to the States ................................................... 14
     3. Cases ............................................................................................................................. 14
   B. Exceptions to the Exclusionary Rule .................................................................................. 15
     1. Cases ............................................................................................................................. 15
IV.    Protected Areas and Interests - Expectations of Privacy..................................................... 16
   A. Reasonable Expectation of Privacy - Katz v United States (1967) ...................................... 16
   B. Trash Bag on Street - California v. Greenwood (1988) ....................................................... 16
   C. Helicopter used to surveil partially covered Greenhouse Florida v. Riley (1989) ................ 17
   D. Effects ............................................................................................................................... 17
   E. Enhancing the Senses ......................................................................................................... 17
     1. U.S. v. Kyllo – thermal imaging of home is un-reasonable. ............................................ 17
     2. United States v. Place (p.164) – No privacy violation with canine sniff........................... 17
     3. US v. Jacobsen: .............................................................................................................. 18
   F. Electronic Tracking: ........................................................................................................... 18
     1. US v. Knotts: use of a beeper to track Ds did not constitute a search under the 4th A. .. 18
     2. US v. Karo: Installing a beeper in a container ................................................................ 18
   G. What may be seized ? ......................................................................................................... 18
     1. Gould v. U.S. (1921) – The ―Mere Evidence‖ Rule: ....................................................... 18
     2. Warden v. Hayden (1967) – Gould‘s ―Mere Evidence‖ Rule Deemed Bullshit: .............. 18
   H. Fifth Amend. not applied to Search Warrants:.................................................................... 18
     1. Anderson v. Maryland (1976) (p. 160) ............................................................................ 18
   I. Warrants Against Non-Suspects - Zurcher v Stanford Daily (1978) (p. 163): ...................... 19
V. PROBABLE CAUSE –................................................................................................................ 20
   A. What constitutes probable cause for a search warrant? – .................................................... 20
   B. Affidavits based on Hearsay: .............................................................................................. 20
     1. Aguilar Two Prong (Validity-Veracity) Test: ................................................................... 20
     2. Spinelli v. United States (p.166) (1969) – ........................................................................ 20
     3. Illinois v. Gates (1983) (p. 169)– .................................................................................... 21
   C. Professor Strader/ SCALE Crim Pro/ Probable Cause Practice Problems (12/1/03): ....... 21
     1. Police Search – Anonymous Letter ................................................................................ 21
     2. Police Search – Anonymous Tips ................................................................................... 22
   D. Review of Warrant on Motion to Suppress after Gates and Leon: ...................................... 23
     1. ―Substantial Basis‖ Test for judge/magistrate: ................................................................ 23
     2. Leon & Gates: ................................................................................................................ 23
     3. Franks v Delaware ......................................................................................................... 23
VI.    Search Warrants ................................................................................................................. 24
   A. Issuance of Warrant: .......................................................................................................... 24
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       1. Cases:............................................................................................................................ 24
  B. Search of persons on the premises ..................................................................................... 25
     1. Ybarra v. Illinois (1979): ................................................................................................. 25
  C. Detention of the persons on the premises: ......................................................................... 25
     1. Michigan v. Summers (1981)(p.198) – ............................................................................ 25
  D. Seizure of items not named in the search warrant: .............................................................. 25
     1. Horton v. CA (1990) – ................................................................................................... 25
  E. Professor Strader/Crim Pro/Practice Problems Set # 4 (The Warrant Requirement)
  12/8/03 ..................................................................................................................................... 26
VII. Warrantless Arrests and Searches of the Person ................................................................. 28
  A. Warrantless Arrests O.K. ................................................................................................... 28
     1. - United States v. Watson: ........................................................................................... 28
  B. Must have Probable Cause to detain post-arrest – .............................................................. 29
     1. Gerstein v. Pugh (1975): ............................................................................................... 29
     2. What is “prompt determination of PC” ..................................................................... 29
  C. Searches Incident to Arrest – ............................................................................................. 29
     1. United States v. Robinson: .......................................................................................... 29
     2. Unnecessary Arrests .................................................................................................... 30
  D. Use of Pretext to Make Stop O.K. – .................................................................................. 30
     1. Whren v. U.S. (1996):.................................................................................................... 30
  E. Can search Inventory incident to arrest – ........................................................................... 30
     Illinois v. Lafayette (1983): .................................................................................................. 30
     1. Inventory Rules ............................................................................................................ 31
     2. Opperman (1976):............................................................................................................ 31
  F. No Search Allowed Incident to Citation – .......................................................................... 31
VIII. Warrantless Searches of Premises, Vehicles, and Containers............................................... 32
  A. Searches of Premises Within Immediate Control ................................................................ 32
     1. Chimel v. CA (1969) 1/8/04: ........................................................................................ 32
     2. New York v Belton ...................................................................................................... 32
     3. Hypos ........................................................................................................................... 32
  B. Professor Strader/Criminal Procedure/ Practice Problem # 7 – Vehicles, Containers, And
  Inventories ................................................................................................................................. 33
  C. Plain View Warrantless Seizures ......................................................................................... 34
     1. Arizona v. Hicks (1987) ............................................................................................... 34
  D. Absent Exigent Circumstances, You MUST have a Warrant to enter a Home to conduct a
  Search ........................................................................................................................................ 34
     1. Vale v. Louisiana (1970): ................................................................................................ 34
     2. Illinois v. McArthur (2001): ............................................................................................ 34
     3. Payton v. NY (1980:) .................................................................................................... 34
  E. Search of Automobiles and Containers .............................................................................. 35
     1. Automobile Exception to Warrant Rqmt - Carrol v. U.S. (1925): ............................. 35
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       2. Containers .................................................................................................................... 35
  F. Prof. Strader Analysis of Chadwick .................................................................................... 35
    How to Argue a Case – The Government Arguments in Chadwick................................ 36
    1. Motor home in Public Parking Area w/in Auto Exception - California v Carney: 36
  G. Warrant Exceptions ........................................................................................................... 38
    1. Search Incident to Lawful Arrest ................................................................................ 38
    SILA Rule ............................................................................................................................. 38
    2. Exigent Circumstances ............................................................................................... 38
  H. Professor Strader/Criminal Procedure/Practice Problems Set # 5 (Warrant Exceptions) .. 39
  I. Professor Strader/Scale Criminal Procedure/Practice Problems # 6/ Warrant Exception
  Practice Problems Cont'd ........................................................................................................... 41
IX.    Investigative Stops: Stop and Frisk ..................................................................................... 43
  A. Terry v. Ohio: .................................................................................................................... 43
  B. what is a seizure? ................................................................................................................ 44
    1. Florida v. Bostick: consent searches are valid. ............................................................ 44
    2. Drayton: ......................................................................................................................... 44
    3. California v. Hodari D.: .................................................................................................. 44
  C. Summary of Tests: ............................................................................................................. 45
X. Grounds for Temporary Seizure for Investigation .................................................................. 45
  A. What is reasonable suspicion? ............................................................................................ 45
    1. Arvizu (supp p. 13): ........................................................................................................ 45
    2. Sibron v. United States: .................................................................................................. 45
    3. Florida v. J.L: ................................................................................................................. 45
    4. United States v. Sokolow: ............................................................................................... 45
    5. Illinois v. Wardlow: ........................................................................................................ 46
  B. when does seizure end? ...................................................................................................... 46
    1. Ohio v. Robinette:.......................................................................................................... 46
  C. Scope of protective search? ................................................................................................ 46
    1. Dickerson:...................................................................................................................... 46
XI.    Administrative Searches ..................................................................................................... 46
  A. Intro Remarks .................................................................................................................... 46
    1. When is warrantless search appropriate? ........................................................................ 46
  B. Safety Inspections .............................................................................................................. 47
  C. Border Searches: ................................................................................................................ 47
    1. US v. Ramsey upheld customs inspections of mail. ........................................................ 47
    2. Non-Routine searches: ................................................................................................... 47
  D. Vehicle Checkpoints .......................................................................................................... 47
    5. BROWN TEST FOR CHECKPOINTS: ....................................................................... 48
  E. Student Searches, Drug Testing 2/3/04 ............................................................................. 48
    1. 1. New Jersey v. T.L.O. high school student caught smoking cigarettes. Found mj in
    purse and a list of buyers ........................................................................................................ 48
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       2.Vernonia v. Acton: randomly test student athletes. ........................................................ 48
  F. Special Needs v. Ordinary Law Enforcement ..................................................................... 48
  G. Consent Searches ............................................................................................................... 49
  H. Prof. Strader/ Crim Pro/Practice Problems Set # 8 – Consent .......................................... 50
  I. Statements ......................................................................................................................... 53
    A. Due Process/ Voluntariness and Right to Counsel .................................................. 53
    B. The Shortcoming of the Voluntariness Test ............................................................. 53
    C. Right to Counsel and the Analogy to the Accusatorial, Adversarial Trial: ............. 53
    E. Massiah v. United States: ............................................................................................ 53
    F. Escobedo v. Illinois (1964): ......................................................................................... 54
  J. II. Miranda (1966) ............................................................................................................. 54
XII. III. Implications and Interpretations of Miranda............................................................... 55
    B. Michigan v. Tucker (1974): ......................................................................................... 55
    C. New York v. Quarles: .................................................................................................. 55
    D. OR v. Elstad (1985): ..................................................................................................... 56
    E. DICKERSON: (2000) ....................................................................................................... 56
  I. Custody, Warnings, and Interrogation ................................................................................ 57
    A. Adequacy of Warning: Duckworth v. Eagen (1989): ................................................. 57
    B. Meaning of Custody .................................................................................................... 57
    C. Meaning of Interrogation: Rhode Island v. Innis: ................................................... 57
    D.      Arizona v. Mauro: .................................................................................................... 58
    E. Jail House Plant-Surreptitious Interrogation: Illinois v. Perkins............................ 58
    F. Booking Exception: Pennsylvania v. Muniz: ........................................................... 58
    G. Public Safety Exception (again) New York v. Quarles: .......................................... 58
  A. Invocation, Reinterrogation and Counsel ......................................................................... 59
    A. Invocation? ................................................................................................................... 59
    B. Reinterrogation after suspect asserts his rights:.......................................................... 59
    B. Invocation of the Right to Counsel ............................................................................ 59
    1. Edwards v. Arizona: ................................................................................................... 60
    The concurring opinions in Edwards thought there was coercion due to ―you have to talk‖. . 60
    2. Bradshaw ....................................................................................................................... 60
    Hypo ...................................................................................................................................... 60
    3. Arizona v. Roberson: .................................................................................................. 60
    4. Minnick v. Mississippi: (expands Edwards) .............................................................. 60
    5. Davis v. United States: ................................................................................................ 61
    3. Moran v. Burbine: Only D can invoke Miranda. ...................................................... 61
  B. D. Miranda: Other Proceedings ........................................................................................ 62
  E. Impact of Miranda in Practice and Techniques ...................................................................... 62
  F. Due Process, Voluntariness and Right to Counsel REVISITED 2/10/04 .......................... 63
    4. Colorado v. Connelly: .................................................................................................. 63
    1. Brewer v. Williams (Williams I, 1977): ...................................................................... 64
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     5. Waiver of 6th Amend right: Patterson v. Illinois ........................................................... 64
     6. Maine v. Moulton: (1985) ............................................................................................... 65
     7. US v. Henry: (1980)........................................................................................................ 65
     8. Kuhlmann v. Wilson: ..................................................................................................... 65
     9. TX v. Cobb (2001): ....................................................................................................... 65
  SCOPE OF THE EXCLUSIONARY RULES .......................................................................... 67
     I. Standing to Object .......................................................................................................... 67
     A. Background: ................................................................................................................. 67
     People v. Martin (1955) California Approach=No standing requirement: ........................ 67
     Alderman v. United States (1969) ........................................................................................... 67
     a. U.S. v. Payner (1980): ..................................................................................................... 67
     2. Automatic Standing ..................................................................................................... 67
     B. The Current Approach ................................................................................................ 69
     1. Rakas v. Illinois (1978): .................................................................................................. 69
     2. Rawlings v. Kentucky (1980) .......................................................................................... 69
  C. Guests ................................................................................................................................ 69
     C. Strader Update 3/2/2004 ............................................................................................ 70
XIII. II. FRUIT OF THE POISONOUS TREE ......................................................................... 70
  A. Attenuation ........................................................................................................................ 71
     Hypo ..................................................................................................................................... 71
     1. Brown v. Illinois: .......................................................................................................... 72
     2. Dunaway v. New York: ................................................................................................ 73
     3. Taylor v. Alabama (1982): ............................................................................................ 73
     4. Identification of a person as a “fruit” of an illegal arrest. ............................................. 73
     5. Confessions as the “fruit” of a Payton Violation .......................................................... 73
     6. Methodology for Determining if Evidence should be Suppressed ............................... 74
     7. Warrant as fruit of illegal entry of the premises ........................................................... 74
  B. H. The Inevitable Discovery Doctrine .............................................................................. 75
     1. Nix v. Williams (Williams II) (1984): .......................................................................... 75
  C. Is Confession Obtained in Violation of Miranda a Poisonous Tree?................................ 75
     1. Oregon v. Elstad (1985): ............................................................................................. 75
XIV.      III. THE IMPEACHMENT EXCEPTION (to the exclusionary rule) .......................... 76
     THE GRAND JURY ........................................................................................................... 78
     Fourth Amendment Challenges ......................................................................................... 78
  ASSISTANCE OF COUNSEL ................................................................................................. 83
     A. Waiver of right to Counsel .......................................................................................... 83
     B. RIGHT TO COUNSEL OF ONE‘S CHOICE ............................................................. 84
     C. EFFECTIVE ASSISTANCE OF COUNSEL .......................................................... 85
     D.      CONFLICTS ........................................................................................................... 86
     E. ROLE OF APPOINTED COUNSEL .......................................................................... 87
  C. Reprosecution after a Conviction ................................................................................... 88
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 D.   Separate Sovereigns ..................................................................................................... 89
XV. Tuesday, March 02, 2004 Review Session .......................................................................... 89




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I.      Prosecutorial Discretion
A. WHAT ARE THE FACTORS CONSIDERED IN PROSECUTING A CRIME?
    1. Severity of the crime
    2. Probability of conviction/ sufficiency of evidence
    3. Factors re the Offender:
    recidivism
    motivation of the offender
    past record – dangerous to society
                4. Resource allocation of prosecutors – there are more severe crimes that should be
                    prosecuted
    5. Public Eye - Reflects poorly on office/police to prosecute bogus crimes
    6. Alternative Sanctions/ diversion program
B. LAFAVE: 3 REASONS WE NEED PROSEC DISCRETION
                1. overcriminalization
                2. enforcement resources are limited
                3. need to individualize justice
C. PROSECUTORIAL DISCRETION AND LEGISLATIVE INTENT:
    1. Separation of Powers
                     If the legislature did make it a criminal act to commit this offense (ex. Smokey
                     the Bear Hype) – is it the role of the prosecutor‘s office to determine which laws
                     should be enforced and which should not? Isn‘t this sort of an example of the
                     executive interpreting the intentions of the legislature?
    2. Cf.
                     Legislatures are not very good about going through the books and cleaning up
                     these laws which are out of date or ridiculous.
Considerations when P charges maximum penalty for minor offense b/c she ―knows‖ that D is
guilty of more serious unprovable crimes (when a defendant‘s possible involvement in other crime
for which there is insufficient evidence – may persuade a prosecutor to charge the highest sentence
allowable):
    Within Leg. Provisions:
                              Still operating within the terms of legislation provided (max. penalty) –
                              therefore you cannot go to an unreasonable extreme. On the other
                              hand, this may be an offense which is never prosecuted to its fullest
                              extent, never to the limits allowed be legislation.
    Judge Ultimate Sentencer:
                          The prosecution can only push for a particular sentence – there is still
                          the backstop of the judge who can conform to norms and only to the
                          routine sanction. The judge may not consider the D‘s possible criminal
                          involvement in the sentencing determination.
                4. ABA Standards for Prosecution:
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                      3-2.5(a) - each office should have a handbook of policies which guide them in
                      their discretion.
                      3-25(b) – the handbook should be open to the public, except for subject
                      matters which are deemed ―confidential.‖
    B. Challenging the Prosecutor’s Discretion - Judicial Deference to Prosecutorial
       Discretion:
       1. Inmates of Attica p. 862 – the inmates sought a writ of mandamus to require federal
          official to investigate and prosecute guards who had violated federal statutes in treatment
          of inmates in the prison. Mandamus can only compel someone to do a mandatory (not
          discretionary) act. Plaintiff relies on a statute which ―authorizes and requires” the U.S.
          attorneys to institute prosecutions against all persons violating the act The court finds
          that the ―requires‖ language does not preclude prosec. discretion and will not issue a
          mandamus.
          Rationale:
          a. Separation of powers – judges should not be made to be ―superprosecutors.‖
              Judges are not equipped to exercise this form of decision making.
          b. Protection of Confidential Info. - Decision to prosecute may be based on
              confidential information and in this case any person could otherwise just file a
              complaint containing allegations in general terms of unlawful failure to prosecute and
              gain access to the prosecutor‘s file and the grand jury‘s minutes, not withstanding the
              confidentiality normally attached to such documents.
          Significance: Courts are reluctant to intrude upon prosecutorial discretion – even
          overlooking and reasoning around the ―requires‖ language.
       2. U.S. v. Armstrong – Selective Prosecution Claim: Is this an impermissible exercise
          of discretion? Ds say they are being unfairly prosecuted b/c black, and they set out
          studies showing that while whites make up a large percentage of crack users, the vast
          majority of those prosecuted are black.. Defendants filed a motion for discovery alleging
          that they were selected for prosecution b/c they were black.. The defense wanted
          evidence of cases or the practice of indiv. prosecutors in prosecuting these types of
          claims.
          a. Rule: Selective prosecution defense must show a discriminatory effect motivated
              by a discriminatory purpose: clear evidence that others who were similarly situated
              (whites) were not prosecuted and that this was done for discriminatory reasons.
          b. Selective-Prosecution claim: an assertion that the prosecutor has brought the
              charge for reasons forbidden by the Constitution.
          c. Significance: a party alleging selective prosecution can‘t even get, through
              discovery, a prosecutor‘s cases b/c this would impact how prosecutions take place –
              this shows again how very much the court will defer to pros. discretion.
       3. Batchelder – Discretion to charge under harsher law: the defendant was prosecuted
          under a five yr. sentence in a statute when another statute with all the same elements
          mandated only a two year lid. Same conduct, diff penalty. Again, the court upheld the
          prosecutor‘s discretion to charge under the harsher statute.


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D. APPLICATION OF THE BILL OF RIGHTS TO THE STATES UNDER THE 14TH AMEND:

    1. ―Total Incorporation‖ of Bill of Rights:
            this approach was never adopted by a majority of the Court. J. Black was its biggest
            supporter.
    2. ―Fundamental Fairness‖ Approach:
            This was the approach used until the 1960‘s. It overlaps with ―Selective Incorporation‖
            approach below. The Court would apply the rt. to the states if it found that the rt. was
            fundamental to a fair and just criminal trial. Value of rights under facts of case. Powell
            (indigent, capitol case, ppl of color  get atty). Betts.
    3. ―Selective Incorporation‖ of the Bill of Rights:
            A SC majority has never held that the 14th Amend. ―totally‖ incorporates all provisions
            of the Bill of Rights. Instead the SC has selectively incorporated many of the individual
            rights of the first eight amendments of the Const. to the states through the 14th Amend.
            Due Process Clause. Today, nearly all the rights of the fed const. have been
            constitutionally required in state cases as well. Focus on value of right in our system.
            Gideon. If a right applies, it applies ―jot for jot‖—the scope of the right is the same in
            fed and states.
    Duncan v. Louisiana (1968) –
            the Due Process Clause of the 14th amend. merely requires “fundamental fairness” in
            state criminal proceedings. Here, the SC stated that those portions of the Bill of
            Rights that are ―fundamental to our concept of ordered liberty” have been so
            incorporated.
    4. Independent Due Process grounds:
    Before the right in the federal const. has been selectively incorporated as to apply to states under
    the 14th amend. – one can still make a generalized due process claim against the state. This is
    rare now as most rights have been applied to states.
    Ex. Rochin v. California:
        1. D was restrained while a heroine capsule was removed from his stomach by a stomach
            pump. The SC decided that this evidence gathering ―shocked the conscience‖ as was
            impermissible on DP grounds. The S.C. had not yet applied the 4th amend. to the states
            as this time (1952).
        2. Breithaupt v. Abram: DP not violated when police take blood sample from unconscious
            person who was involved in fatal automobile collision. Sample showed intoxication.
    Supervisory Powers:
    Federal Courts have supervisory power in fed cases. Power over rules and process, certain types
    of cases drawn on when Con does not cover the conduct.
        1. McNabb v. U.S. (1943): Court held that while the power to undo state court conviction
            is limited to those ―fundamental rights‖ secured by the 14th amend. to the states, the
            federal court does have the power to use its supervisory authority to ensure just
            administration of criminal justice – ―quite apart from the Constitution.‖


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         2.   U.S. v. Payner (1980): briefcase caper. supervisory power may not be applied to
              permit defendant to invoke third party’s 4th Amend. rights. ―The supervisory power
            does not authorize a federal court to suppress otherwise admissible evidence on the
            ground that it was seized unlawfully from a third party not before the court [in violation
            of another person‘s const. rights].‖
         3. U.S. v. Hastings (1983): SC held that federal courts cannot use their supervisory powers
            to reverse a conviction where a prosecutor has violated Griffen v. CA – commenting on
            the failure of the D to take the stand in his own defense – an error that is otherwise
            deemed ―harmless‖ and not capable of grounds for reversal.
         4. purpose of supervisory power: to implement a remedy for violation of recognized rights;
            to preserve judicial integrity by ensuring that a conviction rests on appropriate
            considerations validly before the jury; as a remedy designed to deter illegal conduct


II.      Right to Counsel

A. CONSTITUTION
   Sixth Amendment Rt. to Counsel:
   The 6th Amend. provides in part that ―in all criminal prosecutions, the accused shall enjoy the
   right . . .to have the Assistance of Counsel for his defense.‖ This federal rt. was made applicable
   to the states, via the 14th amend, in 1963 Gideon v. Wainwright (see below).
B. CASES
   1. Powell v. Alabama (1932):
       Rt. to Counsel in state trial on Due Process Grounds only. Black youths were hurried to
       trial for a capital offense, w/o adequate time to consult or retain counsel. The court held
       that in light of all the facts, the failure of the trial court to afford the Ds reasonable time and
       opportunity to secure counsel was clear denial of due process. While this was the first case
       in which a const. right to appointed counsel was found by the SC to exist in a particular state
       trial, court did NOT apply the 6th amend and limited holding to DP grounds.

      2. Betts v. Brady (1942):
         The Sixth Amend. rt. to counsel does not apply to state trials. An indigent was indicted
         for robbery. His request for counsel was denied b/c local practice permitted appointment
         only in rape and murder cases. He was then tried without counsel and without a jury – he
         did not take the stand and was convicted for 8 yrs. The court here said that the 14th amend.
         does not incorporate the specific guarantee founding the 6th Amend.
                 Rationale: The Court applies a ―fundamental fairness‖ test (though it is hard to
                 tell) in saying: ―While want of counsel in a particular case may result in a conviction
                 lacking in such fundamental fairness, we cannot say that the 14th embodies an
                 inexorable command that no trial for any offense, or in any court, can be fairly
                 conducted and justice accorded a defendant who is not represented by counsel.‖



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    3. Gideon v. Wainwright (1963)–
        Overruled Betts– 6th Amend. Rt to Counsel Guaranteed in State Court. Gideon was
        charged in FL state with breaking and entering into a poolroom. D‘s request for counsel
        was denied b/c, despite the fact that he was being charged with a felony, it was not a capitol
        offense requiring counsel under FL law.
            a. Selective Incorporation Approach – USSC applies 6th amend. to the states through
                the 14th, based on the value of the rt. in our system: ―Any person haled into court,
                who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is
                provided for him.‖ Comes at a time of shifting from a fundamental fairness to a
                selective incorp. analysis.

    4. Argersinger v. Hamlin (1972):
       No person can be imprisoned unless represented by atty. Even though D charged with petty
       misdemeanor (less than 6 months jail), and does not get jury trial, D still gets atty.

    5. Scott v. Illinois (1979):
       USSC declines to extend Argersinger to a case where one is charged with an offense for
       which imprisonment upon conviction is authorized but not actually imposed. In other
       words, even if the offense charged is a felony under state law, the state does not have to
       supply an indigent with counsel as long as the judge is willing merely to impose a fine.
           a. NOTE: But the trial has not yet occurred when the court has to make this decision
                and the judge may not know the facts of the case, the prior record of the D, etc. So
                he is not able to consider these issues when making the charge or limiting the
                sentence. Often, as a result of this uncertainty of decision, some counties will
                provide counsel for any offense except the most mundane traffic violations.
    6. 18 USC § 3006A:
        fed statute governing fed crim proceedings. Congress goes further than 6th Amend requires.
       Get counsel in habeus proceedings.

C. WHEN DOES THE 6TH AMEND. RT. TO COUNSEL ATTACH?
   Right to counsel attaches at (1) a ―critical stage‖ of crim proceeding (2) after adversary judicial
   proceedings have commenced. Unlike Miranda (5th Amend), D does not have to be in custody.
   1. criminal “prosecution”:
      The requirement that there be a ‗prosecution‘ means that the right to counsel attaches only
      after the time that the adversary judicial proceedings have been initiated against an accused.
      and after adversary judicial proceedings have begun, after a case has been filed (after the
      prosecution has initiated the charge).
   2. a “critical stage” or formal proceeding:
      The following have been deemed a critical stage where the rt. attaches:
           a. formal charge- Note: pre-charge, when suspect has not expressed desire for
              counsel, the right to counsel is triggered by forces that ―jeopardize‖ the privilege
              against compelled self-incrimination, it has no life of its own.


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            b. Initial Appearance – D is informed of the charges against him, told of his rt. to
               counsel, to remain silent, and, if a felony, his rt. to a preliminary examination.
            c. Preliminary Hearing – Prosecution presents evidence to show that there is
               probable cause to ―bind over‖ or ―hold over‖ D for trial.
            d. Indictment/ information.
            e. Arraignment – charges are read, and D enters a plea.
            f. Sentencing.
            g. Psychiatric Examination.
            h. Warrant – some lower Courts have held this triggers 6A.

    3. Note 5th Amendment vs. 6th Amendment:
              1. Rt. to counsel during police interrogation (Miranda) is NOT protected by 6th
                  amend but is a 5th amend. protection against self-incrimination.

                2. The 6th amend. does NOT apply when there is a custodial interrogation of a
                   person who has not been charged with the offense. U.S. v. Gouveia: Even
                   though the D had been confined and was in custody, the rt. to counsel had not
                   attached.

    4. 18 USC § 3000(a) in Supp. –
       Sets up a system for the rt. to counsel for indigent Ds. Goes beyond the constitution with
       respect to the kinds of cases for which counsel is appointed. The way the counsel was
       appointed or not appointed may violate the statute then without violating the constitution.
       The statute requires counsel to be appointed even if imprisonment is not necessarily
       imposed, where the D is charged with a felony or class A misdemeanor. Sets maximum
       amount for which counsel may earn in defense.

    5. 6A and Edwards
    They attach at different times but have the same effect.
    Burden is on Police to Find Out if You have a Lawyer
    Under Miranda, knowing means only that you know your rights.
    But, under 6A if a lawyer is hired, you’re covered
    Test is deliberate elicitation
    Texas v. Cobb – 6A is offense specific. Related crimes not charged don’t count
(Strengthens McNeil)

D. APPEALS & THE RT. TO COUNSEL – EQUAL PROTECTION/DUE PROCESS CONCERNS:
   1. Cases
   Griffin v. Illinois –
      EP/DP of 14th Amend require that all indigent Ds be furnished a transcript, at least
      where allegations that manifest errors occurred at the trial are not denied: all
      indigents, not just those sentenced to death, are allowed a free transcript to assist them
      appeal. Con does not require state to provie appeal, but when a state grants the right to

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      appeal, it cannot do so in a way that discriminates against convicted individuals because of
      their poverty.
    Douglas v. CA (1963)-
      Mandated Rt. to Counsel in Automatic Appeals. When a state provides an appeal as a
      matter of rt., counsel must be provided for indigents. The Court in Douglas struck down a
      CA rule where appellate courts appointed counsel only if it would be ―helpful‖ to the D or
      the court.
                       1. Equal Protection violated: EP violated when the ―rich man, who
                          appeals as a matter of right, enjoys the benefit of counsel‘s examination
                          of the record, research of the law, and marshalling of argument, while the
                          indigent, already burdened by the preliminary determination that his case
                          is without merit, is forced to shift for himself.‖
                       2. Dissent – DP analysis: He says that here is no functional need for
                          counsel to be appointed, when the court screens the cases to see if they
                          have any merit and that counsel should be appointed. DP is a balancing
                          test. However, all the screening process has at its disposal are the written
                          motions work and the trial transcript, which if the indigent doesn‘t have
                          counsel won‘t show very much clarity, in addition the screening function
                          would be overwhelming as the trial transcript would be huge.

    Ross v. Moffit (1974) –
       No Rt. to Counsel for Discretionary Appeals:– D wants counsel for the discretionary
       appeal for the NC SC, or to file petition for certiorari in USSC. On appeal, an atty acts as a
       sword to upset the prior determination of guilt.

                         1. Mostly DP analysis: Ct focused on whether the D sans attny has a
                            meaningful opportunity to provide the court with an adequate basis
                            for decision to deny or grant review. Ct acknowledges an indigent D
                            seeking discretionary review is handicapped in comparison with a wealthy
                            D who has counsel.
                         2. Indigent still has adequate resources: Crt says D will have at his
                            disposal a transcript of record, an appellate brief, and the decision of the
                            appellate court – all this would provide the NCSC. with an adequate basis
                            for its decision. Court then leaves it up to the states to grant rep. on
                            second appeal.

    Evitts v. Lucey:
            6th Amend right to counsel extended to 1st appeal as of right (regardless of 14th Amend)

    Smith v. Robbins:
       This case is about a first appeal as of rt. in CA. Court held that the states are free to adopt
       procedures to decipher which claims for appeal are frivolous and which are not. These
       procedures must ensure that there is a sufficient procedure and one that allows careful

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          review of the appeal in order to determine its validity. The court upheld the procedure in
          CA. In assessing the Wende procedure – the court applied a fundamental fairness analysis.
          (what does all of this mean???)

       Ake v. Oklahoma (1985) –
         Indigent D has a Rt. to Expert Services if sanity is significant issue to defense: D has
         right to psychiatrist when:
                         1. D makes preliminary showing that sanity will be significant factor at trial
                         2. State presents evidence of future dangerousness for capital sentencing
                         3. Ct says fundamental fairness (DP) entitles indigent defendant‘s to ‗an
                              adequate opportunity to present their claims fairly within the adversary
                              system‘ – identifying the ‗basic tools of an adequate defense or appeal‘:
                              but what are the basic tools? forensic evidence experts, etc.


III.      SEARCHES AND SEIZURES

A. THE EXCLUSIONARY RULE
   1. The Constitution
   4th 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 Warrant
   shall issue, but upon probable cause, supported by Oath of affirmation, and particularly
   describing the paces to be searched, and the persons or things to be seized.‖
       1. No warrant requirement - the amend. does not say that a search warrant must be
           issued, it only states that where one is issued it must be based on a reasonable/probable
           cause.
       2. Does not define ―reasonable‖ or ―unreasonable‖
       3. Does not talk about exclusionary rule

       2. Constitutional History – Application to the States
       Exclusionary Rule originally held NOT to apply to States through 14th Amend. - Wolf v.
       Colorado (1949) (p. 108)
          Issue: Does exclusionary rule (Weeks v. U.S.) apply to state prosecutions?
          Held: In a prosecution in a State Court for a State crime, the 14th Amend. does not forbid
          the admission of evidence obtained by an unreasonable search and seizure.
          Court View: The court views Weeks as a supervisory ruling – one of ―judicial implication.‖
          The 4th Amend applies to states, but states can decide how to remedy a violation.

       3. Cases
        Mapp v. Ohio –
       Exclusionary Rule Applied to States through DPC of 14th Amend (1961):
          Holding: All evidence obtained by searches and seizure in violation of the Constitution is,
          by that same authority, inadmissible in state court.
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        Overrules Wolf: Wolf’s assertion that other methods of determent were available to the
        States was found, 12 yrs. later, to be incorrect. A majority of the states had passed an
        exclusionary rule, and other remedies imposed have been ―worthless and futile.‖
        Shift from fundamental fairness to selective incorporation—looking at exclusionary rule
        system-wide.
        Coerced confessions are excluded regardless of the frequency of such police conduct.
        Dissent: A confession is excluded b/c violation would occur if admitted. But 4th Amend
        violation is complete once the search or seizure is over. Exclusion can‘t un-do the violation

    Exclusionary Rule part of 4th Amend.:
       Here, the exclusionary rule is part and parcel with the 4th amendment, b/c it is necessary to
       have this rule to encourage officers to comply with the 4th amend – search warrants,
       probable cause, etc.

    Judicial Integrity prong:
       Nothing can destroy a gov‘t more quickly than its failure to observe its own laws, or worse
       its disregard of the character of its own existence. If the court becomes a law breaker, it
       breeds contempt for the law . . .‖

B. EXCEPTIONS TO THE EXCLUSIONARY RULE
   1. Cases
   Good Faith Exception - U.S. v. Leon (1984) (p. 114):
      1. Facts: Cops had warrant to search, but there was not probable cause to issue warrant.
      2. The exclusionary rule does not operate so as ―to bar the use in the prosecution‘s case-
         in-chief of evidence obtained by officers acting in reasonable reliance in a search
         warrant issued by a detached and neutral magistrate but ultimately found to
         unsupported by probable cause.‖ Court says exclusionary rule is judicially-created
         remedy, not part of Con.

        3. Objective Rule: ―reasonable [good faith] reliance‖ – Like Tort‘s Reasonable Man
        4. Exclusionary rule designed to deter police misconduct, not to punish the honest
            mistakes of judges/magistrates..
        5. Exception ONLY extend to “good faith”: The court does note that where there is
            evidence that the warrant is issued under intentionally false information or that the info.
            wholly lacks a showing of probable cause, the evidence obtained should be excluded.
    Analysis
    Go through chronologically in applying Exception: What did the officer first know, what was
    his next step - based upon the information he knew before each step, was the next step
    reasonable?
    U.S v. Lopez-Mendoza:
    No extension of Leon and the good faith exception to a warrantless search, even if the officers
    did not know nor should have known that they were acting contrary to the Fourth Amend.
    Distinguish from Leon b/c no neutral decision-maker here.

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      Mass. v. Sheppard (1984)
      Evidence not excluded when Wrong Warrant Form used- (note case p.126): The SC, relying
      on Leon, upheld the conviction of a defendant where evidence was obtained through the
      accidental issuing of the wrong warrant form. Here there was a neutral decision-maker.
      U.S. v. Verdugo-Urquidez (1990) (n. case p. 137):
       Exclusionary Rule Does NOT Apply to Foreign Nationals - 4th Amend. protections do
      not apply to foreign national who lacks sufficient connection to the U.S. V-U was brought to the U.S.
      and prosecuted here, but the search took place in Mexico.
          1. ―People” of 4th amend.: ―refers to a class of persons who are part of a national
              community‖ or who have developed such a connection to the community. Foreign
              National (here a Mexican citizen) doesn‘t qualify.
          2. No warrant required.


IV.       Protected Areas and Interests - Expectations of Privacy

A. REASONABLE EXPECTATION OF PRIVACY - KATZ V UNITED STATES (1967)

          1. FBI agent put microphone in phone booth. 4th Amend protects people, not places.
          2. Test: Does person have r. expectation of privacy? Objective and subjective
          3. In concurring opinion, Harlan concludes that a person has a legitimate and reasonable
             expectation of privacy while making a phone call in a telephone booth.
          4. Non-trespassory intrusion: A 4th Amend violation can occur even when no physical
             entrance into the area occupied by the D. In other words, you need not have a
             property interest to have expectation of privacy. ―Bum under bridge‖ hypo.

B. TRASH BAG ON STREET -– Person must exhibit an actual (subjective) expectation of privacy.
        (1) Subjective prong CALIFORNIA V. GREENWOOD (1988)
          Held: The court - Expectation is one that society deems is reasonable (is the
     1. (2) Objective prong here finds that there is no reasonable expectation of privacy in a trash
          bag left on privacy objectively reasonable).
        expectation ofthe street.
     2. Reasoning under Katz :
          a. Subjective Prong: The respondent does not exhibit a subjective expectation of
              privacy where he turns over his trash and leaves it open and readily accessible to
              animals, children, and snoops. In addition, the respondent knows that the trash will be
              picked up by a third person (a city trash collector) and therefore puts it out for the
              express purpose of having strangers take it.
          b. Objective Prong: Police cannot be expected to avert their eyes from criminal
              evidence that could have been observed by any member of the public. The court
              notes that while CA recognizes a rt. to privacy in trash, this state rt. does not
              mandate federal recognition – what one state imposes does not mean that ―society as
              a whole‖ regards this as an objective expectation of privacy. Rather, states are free to
              impose more stringent constraints on police conduct than does the Federal
              Constitution – here the case is not about state law, but it is about an interpretation of
              federal law.
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        3. Hypo: What about if you turn over your trash to a paper shredder co. and FBI attempts
           to grab this trash? This could be distinguished from Greenwood, b/c here you are not
           turning your trash over to the public or making it open to public exposure. Is this
           difference dispositive then of accepting an expectation of privacy? Is giving an article to
           a third party a surrendering of your expectation of privacy? No – if you also consider
           examples of mail delivery, but in the hypo the subjective prong may hinge on what the
           co.‘s policy and contract states that they are not to look at the trash, how they pick up
           the trash (is it gathered by them or placed in sealed bags by the owners, etc.
        4. Does Greenwood apply even when D has resorted to rather extraordinary means
           to ensure that the incriminating character of his garbage is not perceived by
           others?
               Answer: NO. US v. Scott: IRS agents painstakingly reassembled shredded strips
               that D had put in garbage and the set at curb.

C. HELICOPTER USED TO SURVEIL PARTIALLY COVERED GREENHOUSE FLORIDA V. RILEY
   (1989)
       1. Held: NO reasonable expectation of privacy in green house where a helicopter flies 400
          ft. over the greenhouse to observe marijuana.
       2. Reasoning: The court focused on the FAA regulations here, stating that since it did not
          violate these regulations to fly 400 ft. above, then a homeowner cannot reasonably
          expect privacy of an uncovered greenhouse. The court also noted that there was no
          interference with the property here – no dust and dirt flying about. The FAA regulations
          and interference with the prop. are not necessarily dispositive of the court‘s decision, but
          are used in a balancing with almost an infinite variety of facts.
       3. Dissent: the issue is not whether it was legal to fly at that altitude, but whether there
          was any real, practical likelihood that the public would fly where the police were flying,
          not whether the public had an abstract legal right to do so.


D. EFFECTS
      1. Bond v. US (2000): police squeezing luggage of everyone on bus violates 4th Amend.
         Person does not expect luggage to be squeezed in exploratory way
      2. Hypo: ―poofing‖ (squeeze and smell) of luggage checked at airport. Person here has
         relinquished control. This is one factor which shows there is less expectation of privacy.

E. ENHANCING THE SENSES
   1. U.S. v. Kyllo – thermal imaging of home is un-reasonable.
       Case does not turn on details of what was actually seen. Court draws a firm line when
      search is of the home.
   2. United States v. Place (p.164) – No privacy violation with canine sniff
          a. Held: There is no unreasonable search when a luggage is temporarily seized and
              sniffed by a narcotics dog at airport.

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          b. Rationale: There is no intrusion. There is no one rummaging through the luggage,
               no embarrassment, little inconvenience, the luggage is already in the public view.
               ―We know of no other investigative procedure that is so limited in both the manner
               in which the information is obtained and in the content of the information revealed
               by the procedure.‖
          c. The “plain odor” doctrine: This ruling at least implies that just as viewing objects
               in ―plain view‖ does not constitute a search, so perceiving the nature of an object by
               the smell it emits does not constitute a search.
    3. US v. Jacobsen:
       1. when police lawfully come upon white powder in a package originally open by a private
          party, an on-the-spot chemical test of a trace of the powder which reveals whether it is
          coke is NOT A SEARCH. (relies on Place)
          - likelihood that official conduct like this will actually compromise any legit interest in
               privacy is too remote to characterize the testing as a search subject to the 4th A.
          - Dissent: under court‘s analysis, law enforcement officers could release a cocaine-
               trained dog to roam the streets at random…

        2. Under the plain view doctrine, law officers may use these enhancing devices:
           a. Flashlights – Texas v. Brown (1983).
           b. Binoculars – Johnson v. State (1967)
           c. Aerial camera- Photographic Magnification- Dow Chemical Company (1986) (p.
              157)

F. ELECTRONIC TRACKING:
   1. US v. Knotts: use of a beeper to track Ds did not constitute a search under the 4th A.
         Officers relied on visual surveillance as well as the beeping to track D while en route in
         car. Beeper was installed with consent of the chemical co on container.

    2. US v. Karo: Installing a beeper in a container
          a. with consent of original owner and then delivering the container to an unsuspecting
              buyer is NOT a search BUT monitoring the beeper does implicate the 4th A when it
              reveals information that could not have been obtained through visual surveillance.

G. WHAT MAY BE SEIZED ?

    1. Gould v. U.S. (1921) – The ―Mere Evidence‖ Rule:
       here the Court held that mere incriminating evidence of a crime cannot be seized in a search,
       seizure could only properly be made ―when the property is an instrumentality or fruit of
       crime, or contraband.‖
    2. Warden v. Hayden (1967) – Gould‘s ―Mere Evidence‖ Rule Deemed Bullshit:
       the Court overruled Gould and allowed the seizure of an alleged robber‘s clothes. The
       Court stated that the ―mere evidence‖ rule was unreasonably prohibitive and only protects
       privacy interests arbitrarily. This was a hot pursuit exception.

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            Unanswered Question: In rejecting the ―mere evidence‖ rule, the Court did recognize
            the possibility that some seizures might violate the 5th A. guarantee against self-
            incrimination, but did not decide the issue.

H. FIFTH AMEND. NOT APPLIED TO SEARCH WARRANTS:
   1. Anderson v. Maryland (1976) (p. 160)
         a. Facts: there was a search warrant issued to search the petitioner‘s law offices and
            also corp. offices for specified documents pertaining to a fraudulent sale of land.
            The papers found in the execution of the warrant were admitted against the
            petitioner at his trial and he was convicted.
         b. 5th A. issue: The fifth amendment issue here in question is whether the papers,
            prepared by the petitioner, compelled the P to testify against himself in violation of
            the Fifth Amend.
         c. Holding - Subpoena [duces tecum] vs. Search Warrant: The court held: while a
            D is protected against producing evidence against himself, he is not protected against
            its production through a valid search warrant.
         d. Therefore, while the 5th Amend . protects against an individual. having to comply
            with a subpoena for the production of personal records in his possession, a seizure
            of the same material by law enforcement officers differs – the individual is not
            directed to aid in the discovery, production, or authentication of the incriminating
            evidence. No compulsion—officers do it all


I. WARRANTS AGAINST NON-SUSPECTS - ZURCHER V STANFORD DAILY (1978) (P. 163):
Facts: newspaper agency searched b/c the agency was suspected to have photographs of those who
were involved riot/demonstration. The newspaper was challenging the warrant on the basis that: (1)
They were not suspects in the investigation; (2) The secrecy of their confidential informants and
sources may be compromised; (3) The 1st A.: such a search would stop them from asserting their
freedom of speech in that the paper would be slowed by the search.

        1. Holding: Valid warrants may be issued to search any property, whether or not
            occupied by a 3rd party, so long as there is probable cause to believe that evidence
            of a crime will be found. If the officers don‘t know where the evidence may be, then
            perhaps a subpoena is more appropriate, but not mandated .




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V.    PROBABLE CAUSE –
A Warrant Must Be Based On An Adequate Showing Of Probable Cause.

A. WHAT CONSTITUTES PROBABLE CAUSE FOR A SEARCH WARRANT? –
     1. Officers must present to a magistrate sufficient underlying facts and circumstances
        that a reasonable person would conclude that siezable evidence would be found on
            the premises or person to be searched – Carroll v. U.S.


B. AFFIDAVITS BASED ON HEARSAY:
   1. Aguilar Two Prong (Validity-Veracity) Test:
      material from an informant could suffice to establish probable cause for a search warrant
      only if two conditions were met –

   (1) Validity -- basis of knowledge: There has to be facts showing just how the informant came to
       have this information.
   (2) Veracity – credibility or reliability: there had to be evidence that the informant was a reliable
       witness b/c he had been reliable in the past, or b/c there were special reasons to believe that his
       information in this particular case was reliable.
   (3)
    2. Spinelli v. United States (p.166) (1969) –
       Aguilar prongs “totally independent” of each other – each must be met before PC is
       established.
           a. Facts: Spinelli was charged with crossing state lines with the intent to engage in
               gambling. Here the affidavit set out four things: (1) That the FBI had monitored
               Spinelli‘s movements as he had gone over the state line several times and into an apt.;
               (2) there were two phone lines in the apt; (3) Spinelli is ―known‖ as a bookie; (4) a
               ―confidential and reliable informant‖ states that Spinelli is running a booking gig out
               of the apt.
           b. Application of Validity-Veracity Test: Can the tip, standing alone, be proven to be
               ―trustworthy‖: (1) Is the informant‘s ―source of knowledge‖ solid?; (2) Is the
               informant‘s report reliable – veracity?
           c. Holding: The court found that the affidavit did not substantiate these two prongs in
               that it did not detail how the informant came about this information, nor was the
               information given so specific and corroborated that it could properly be deemed
               reliable.
           d. Significance: The court in Spinelli makes it clear that these two prongs are separate
               and each must be proven separately. An informant can‘t have a basis of knowledge,
               but not have been very reliable, etc. Even an incredibly strong showing that the
               informant had always been reliable, or was almost surely accurate in this case, could
               not make up for the failure to disclose how the informant came by the facts of his
               report.
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    3. Illinois v. Gates (1983) (p. 169)–
       Totality of the Circumstances Test – Overrules Aguilar/Spinelli:
           1. Facts: Officers received a letter stating that a couple was involved in narcotics
               distribution and detailed the driving and traveling of the couple to Florida to pick up
               the drugs. The cops then monitored the suspects travels which were almost entirely
               consistent with the tip (except that the tip said that the wife would drive back from
               Florida, while in fact she drove back with her husband).

           2. Holding: Here the court rejected the Aguilar/Spinelli two part test and asserted: a
              warrant may be issued based on affidavits that are entirely hearsay if the affidavit
              shows by the totality of the circumstances that there is a fair probability that
              contraband or evidence of the crime will be found in the particular case.
              a. Aguilar test only used as a factor of consideration for Totality of
                 Circumstances: The reliability of the informant‘s report and the basis of his
                 knowledge are only considerations that go to the totality of the circumstances –
                 but these elements are neither fatal nor sufficient in and of themselves. All that is
                 required of an affidavit is that all the allegations, taken together, permit the
                 magistrate to make a common sense evaluation of the probable cause.

Gates test: balance the relative weight of all indicia of reliability (& unreliability) of an
informant‘s tip; A/S factors [―source of knowledge‖ & ―veracity‖] are relevant, but not
independent/determinative prongs—strength of one prong may compensate for weakness in the
other.

C. PROFESSOR STRADER/ SCALE CRIM PRO/ PROBABLE CAUSE PRACTICE PROBLEMS
   (12/1/03):

    1. Police Search – Anonymous Letter
           Agent Andrews filed an affidavit in support of an application for a warrant to search
           Tim‘s home in Alaska. The affidavit said that an anonymous source had sent two letters
           to police saying that Tim had lived in Maine, had known John, a marijuana dealer, and
           that John was now living in Alaska. Andrews learned that Tim had previously had a
           Maine driver‘s license.

            The affidavit also said that marijuana growers use more than average electricity because
            of the need for growing lamps. Tim‘s usage was about double the average, and did not
            decline during the summer months. Tim also used gas, not electric, heat.

            Based on this information, a magistrate issued a warrant. Was there probable cause?

            My Answer:


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            Rule: Arrest must be based on PC. PC to arrest when @ the time of the arrest, the
            officer has within his knowledge reasonable trustworthy facts & circumstances sufficient
            to warrant a reasonably prudent person to believe that the suspect has committed or is
            committing a crime. Beck v. Ohio, 1964.

            Totality of circumstances must indicate reliability of information per Gates holding. AS
            factors [―source of knowledge‖ & ―veracity‖] are factors lending or diminishing
            credibility of PC. Agent Andrews verified that suspect has a Maine driver‘s license and
            that his electric usage is quite high. Justice Scalia‘s opinion in Gates noted that no illegal
            activity needs be observed for a trained agent to draw the circumstantial inference that
            illegal activity is taking place and that this is good enough for probable cause. Under
            Gates there is PC.

            Class: We don‘t know anything about the informant, so no knowledge about his basis
            of knowledge, veracity, reliability. Compare Gates. There was not a strong showing, just
            a sufficient showing of PC. The tip in Gates was the corroboration of the informant
            info. In this case, no corroboration. So, if Gates was a close case, then this case
            probably is no PC. There was not even an allegation of pot plants being in the house in
            the tip.If you were litigating this case in court, you would compare to Gates and show
            how it‘s weaker. This was a 9th Circuit case from 1994 and the court found NO PC.

    2. Police Search – Anonymous Tips
           Agent Turner of the DEA received eight tips from two unknown sources concerning the
           drug smuggling activities of Gerry and his wife Berta. The informers described the
           vehicles used, license plates, addresses, and a yacht called the ―Princess‖ with a secret
           compartment. Turner verified the names, addresses, and descriptions of the suspects,
           and established surveillance of the suspects‘ home.

            The callers subsequently reported that the yacht would arrive at the local dock a specific
            time with a cocaine shipment, and that Berta would be waiting at the dock in a blue
            truck. Turner later followed Berta, who drove towards the dock in a blue truck at a high
            speed. Although Turner lost sight of the car, he found a woman waiting at the dock.
            Incorrectly believing that the woman was Berta and that she was on ―look out‖ for
            possible law enforcement, he struck up a conversation with her. Soon, Turner saw
            Gerry carry a bag from the Princess to the blue truck, and drive slowly and carefully
            away; the woman who was in fact Berta was in the truck with Gerry. Turner stopped the
            truck and arrested the occupants. Were the arrests based upon probable cause?

            My Answer:
            Totality of circumstances must indicate reliability of information per Gates holding.
            A/S factors [―source of knowledge‖ & ―veracity‖] are factors lending or diminishing
            credibility of PC. Agent Turner verified names and addresses and descriptions of
            suspects but apparently not vehicle licenses and descriptions. His surveillance on the

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             night in question was interrupted and he initally identified an innocent bystander as the
             suspect. Under Gates there is not PC.

             Class: We must find corroboration of something suspicious. The most suspicious thing
             in these facts is the presence of a ―lookout.‖ If an officer reasonably concludes that
             there is a lookout, then there is a factor in favor of PC. IN the real case, ‘s appealed
             conviction; appeals court remanded the case and ordered the trial court to determine if
             the officer had reasonable belief that the lookout was a lookout. Everything else in the
             case had a innocent explanation. Was the officer‘s mistake in concluding there was a
             lookout reasonable?

D. REVIEW OF WARRANT ON MOTION TO SUPPRESS AFTER GATES AND LEON:

    1. ―Substantial Basis‖ Test for judge/magistrate:
       how do you review a magistrate‘s ―totality of the circumstances‖ decision when there is then
       filed a motion to suppress? The backward looking inquiry focuses on whether there was a
       ―substantial basis‖ for concluding that probable cause existed.

    2. Leon & Gates:
       Gates preceded Leon – after Leon the court reviewing the motion to suppress must ask two
       questions:
               (1) “Substantial Basis” (Gates) applied to magistrate/judge: Did the issuing
                    magistrate have a ―substantial basis‖ for concluding there was probable case –
                    did the totality of circumstances (including veracity/validity) indicate probable
                    cause?
               (2) “Objective Good Faith” (Leon) applied to officers: If NOT, the reviewing
                    judge must then ask whether the officers acted with objective good faith.
       1. Division of responsibility: Leon (good faith exception to the ER) divides the
          responsibility between the magistrate-judge and officer: ―It is the magistrate’s responsibility to
          determine whether the officer’s allegations establish PC and, if so, to issue a warrant comporting in form
          with the 4th Amend. In the ordinary course, an officer cannot be expected to question the magistrate’s
          probable cause determination or his judgement that the form of the warrant is technically sufficient.‖

             (a) Apart from those circumstances where the officer should have reason to know that
                 there is no PC and the signed warrant is wrong, the officer can‘t be required to
                 second guess the magistrate‘s decision.

             (b) If reviewing judge determines that that magistrate DID NOT have a substantial basis
                 for concluding that PC existed, then the evidence is still not excluded of the officers
                 acted in good faith.

    3. Franks v Delaware
       Procedural Steps to Challenge Warrant:
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             (1) D makes a substantial preliminary showing that the statements in a search warrant
                 affidavit were intentionally and knowingly false, or with reckless disregard to
                 their truth, and
             (2) if the allegedly false stmt was necessary to the finding of probable cause – a hearing
                 will be held at the D‘s request.
             (3) If, at the hearing, the D can show by a ―preponderance of the evidence‖ that the
                 stmt was indeed false then the false stmt will be set aside and
             (4) the affidavit‘s remaining content will be analyzed to see if it est. probable cause.
             (5) If it does not, then, and only then, will the fruits of the search be excluded.


VI.      Search Warrants
         MUST BE PARTICULAR AND REASONABLE

A. ISSUANCE OF WARRANT:
   1. Cases:
   Coolidge v. New Hampshire –
         must have a neutral and detached magistrate. Here the magistrate had the dual role
         of being the chief investigator and prosecutor.
   Shadwick v. Tampa –
         judicial clerks are neutral and can capably determine if probable cause exists.
   Connally v Georgiabi:
         Can‘t have financial incentive to issue warrant
   Rooker v Commonwealth:
         Judge or magistrate must read the warrant before he/she signs it.
   United States v Davis:
         One magistrate can‘t o.k. a warrant if another magistrate had previously rejected it on the
         same showing.

      “Particularity as to the place to be searched”:

             a. Common Practice: street address for urban locations; description for rural
                locations.
             b. State v. Blackburn: Apt # is wrong but the warrant did specify unique letters that
                appeared on the door – the court found that a warrant that specifically describes the
                writing on the door satisfies the ―particularity‖ reqmt even where the door number is
                wrong.
             c. Maryland v. Garrison: search of D‘s third floor apt., though not intended by
                warrant, was valid b/c the warrant authorized the search of the entire third floor of
                the building and b/c the officer‘s failure to realize the overbreadth of the of the
                warrant was objectively reasonable.
             d. Overall Rule – “Particularity” reqmt is common sense analysis: the courts use
                a rule of reason to define what is ―particularity.‖ Courts will uphold seizure even if
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                there is an error if the warrant was enough to reasonably tell an officer what kind of
                area is to be searched and what is to be seized.

B. SEARCH OF PERSONS ON THE PREMISES
   1. Ybarra v. Illinois (1979):
             Warrant to search bar and bartender, but cops also searched 13 customers. No
             reason to suspect D had drugs on him. Rule: A person‘s mere proximity to others
             independently suspected of criminal activity does not, without more, give rise to
             probably cause to search that person.

C. DETENTION OF THE PERSONS ON THE PREMISES:
   1. Michigan v. Summers (1981)(p.198) –
        (1) Rule: When the police are searching a residence for contraband, pursuant to a
             search warrant, they may detain the occupants while the search continues.
        (2) Facts: Police detained D as they served a search warrant on the residence and he
             was on his way out. Arrested him after they found narcotics in his house. Then
             searched him and found heroin.
        (3) Rationale: The court held that this was a limited intrusion (like Terry), detention
             served the purpose of avoiding flight and avoiding harm to officers, detainee can
             open locks and avoid damage to locked areas.
        (4) Note: Officers may not look everywhere within the described premises; they may
             only look where the items described in the warrant might be concealed.

D. SEIZURE OF ITEMS NOT NAMED IN THE SEARCH WARRANT:

    1. Horton v. CA (1990) –
         (1) Can seize items plainly visible from a place where police are entitled to be
             (a) Facts: Here an officer‘s affidavit established PC to search D‘s home for the
                 proceeds of a robbery and for weapons used, but the magistrate issued a warrant
                 only for the proceeds. No proceeds were found but weapons were.
             (b) D claimed violation of the ―in plain view‖ exception announced in Coolidge v.
                 New Hampshire: items found in plain view may be seized where it is
                 immediately apparent to police that they have evidence in front of them—the
                 discovery of evidence in plain view must be inadvertent.

                (c) Analysis: Court held that the scope of the search was not effected by the fact
                    that the guns were not listed in the warrant (there may be a different result if the
                    warrant described the jewelry, the officers found the jewelry, but then spent an
                    additional two hours searching for weapons).

                (d) RULE: The “plain view” doctrine applies even where the police’s
                    discovery of a piece of evidence they want to seize, but not in the warrant,
                    is NOT inadvertent. Thus, as in Horton, if the police know that they are likely
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                    to find both a gun used in the robbery as well as the proceeds of the robbery,
                    they may validly find and seize the gun if they happen upon it in plain view.

                (e) Significance: This case may suggest that the real bite of the ―particularity‖ reqmt
                    only extends to the place to be searched, not necessarily to the things to be seized.

E. PROFESSOR STRADER/CRIM PRO/PRACTICE PROBLEMS SET # 4 (THE WARRANT
   REQUIREMENT) 12/8/03
1.    Trooper Travis was an undercover narcotics agent. He learned of weekly poker games held
      at various places on Saturday mornings. The location was selected each week late Friday
      night at a bar, and the players would then move to the location. Lots of money was present
      at the games, at which drugs were bought and sold. Travis stated he believed there would be
      a game that Saturday, which he would attend while ―wired‖ so that the police monitor could
      learn the location of the game. Based upon this information, a magistrate issued a search
      warrant for premises ―to be identified by Trooper Travis prior to the execution of the
      warrant.‖ The police followed through, searched pursuant to the warrant, and found
      cocaine.
      My Answer: Not a valid search. Violation of 4th Amendment.
      Rule: ―Particularity as to the place to be searched‖ – need street address.
      Class (1/8/04): Anticipatory warrant that allows specifics to be determined after the
      warrant is issued. Usually, a warrant must list place to be searched and items to be
      seized. Sometimes, anticipatory warrants are issued when there is no other way to do
      it; like following a drug courier and you don’t know where the rendezvous will be.
      But this was not a proper instance for such a warrant b/c poker games last a long
      time and they could have phoned for a warrant once they knew where the game was
      taking place.

2.      Police learned that Perry had a library of child pornography at residences in Los Angeles and
        Seattle. A Seattle officer applied for a search warrant, stating that he had viewed 17 of 82
        films obtained by Perry. Five of these involved child pornography, and the remainder adult
        pornography; only possession of the former is illegal. The warrant authorized search for and
        seizure of ―child and adult pornography in whatever form and related purchase, sale, and
        storage materials.‖ Execution of the warrant yielded 197 magazines and films. Fourteen of
        these contained child pornography.
        My Answer: No violation – particularity of items to be seized is in warrant and that‘s what
        they took. I think it‘s legal to seize non-controlled materials if needed for analysis; just like
        seizing books and records. They need to be examined to see if they have any incriminating
        data.
        Rule: ―Particularity as to the items to be seized‖ – need to be more specific when seizing
        books and other constitutionally protected materials.
        Class (1/8/04): The issue here is particularity as to items to be seized. Government
        would cite Andresen and say they needed to analyze the data. Which is what I said.
        But, a warrant authorizing search for items that you can legally posess, is invalid. So,

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        unless so stated, you cannot seize legally owned stuff. The problem would have to
        say you need it for evidence. If there is PC for some stuff but not other stuff, the
        Court will try to sever the warrant and allow introduction of the evidence and not of
        the legally owned stuff. But, if the warrant allows the police to search in areas where
        they don’t have PC, then the warrant is not severable.

        What if the tapes were labeled? Then it would be different from Andresen because
        there would be no need to examine each document. So, the Court said this was an
        invalid and unseverable warrant.

        Severablility: do the police have PC and a valid warrant to search from small items?
        If yes and then they find a big item, it’s OK, b/c no additional privacy intrusion. But
        if you flip the facts, the answer is no. If they are searching for an elephant, they
        cannot look in envelopes.

        Reasonable officer would have known:
           1. Unreasonable to search for legal material
           2. Search could not be reasonable
           3. Officers did not act in good faith Not reasonably particular in terms of place
              to be searched.s

3.      In January last year, Dave was legally arrested for selling cocaine. After the arrest, Dave told
        police that his source was Ron, who lived at 56 Maple Avenue. Dave said that Ron hid the
        cocaine in cereal boxes, and drove a red truck, which he described. Police verified Ron‘s
        address and ownership of a red truck. Dave had a lengthy criminal record involving
        repeated fraud. Police took Dave to a magistrate, and the officer and Dave gave live
        testimony in support of a warrant application. When questioned about Dave‘s criminal
        record, the officer mentioned the cocaine arrest but not the fraud convictions. Dave himself
        said that he had only been in trouble before for ―drug stuff.‖ Based upon this testimony, the
        police obtained a warrant, searched Ron‘s house, and found cocaine.
        My Answer: Not a valid warrant.
        Rule: Full disclosure on warrant application.
        Class (1/8/04): This is a Delaware v. Franks case. If  can prove police lied or
        recklessly misled on the warrant application, then the question is whether this
        affected the magistrate’s decision. Would there still have been PC? In this case,
        there would be no PC due to no veracity. Reckless means aware of the possibility.

4.      The police obtained a search warrant to search ―Smith's fifth floor apartment at 101 Oak
        Street,‖ based upon probable cause that Smith possessed illegal narcotics in the apartment.
        Police went to the address, where there were names and buzzers to the apartments beside
        the entrance. The police walked through the open entrance door and climbed to the fifth
        floor landing, where they saw an open apartment door to the left. The police knocked,
        announced their presence, and entered and searched the apartment, which they later
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        discovered belonged to Jones. The police found cocaine, and later arrested Jones. Upon
        leaving Jones apartment, the police noticed another apartment across the hall from Jones's
        apartment. The other apartment turned out to belong to Smith.
        My Answer: Not valid warrant b/c they knew it was an apartment bldg. and were required
        to put the apartment number on the warrant.
        Rule: ―Particularity as to the place to be searched‖ – need street address; for apartments,
        the apartment number is required unless they don‘t know it‘s an apartment building until
        they get there.
        Class (1/8/04): 5 floor bldg.; 2 apts per floor. Maryland v. Garrison. Reasonable
        mistake by magistrate, reasonably particular. Particularity is a reasonableness issue.
        No apartmet specified. Is warrant particular? Yes, mistake was reasonable? Was
        execution reasonable? Yes, police acted reasonably; they didn’t know there was
        another apartment. But, the police could have looked at the names on the door bells.

        DID ANY OF THESE SEARCHES VIOLATE THE FOURTH AMENDMENT?
        Text of the 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 ….‖

Was there a search?
Was there a warrant?
Was the warrant valid? (reasonably particular?)
Was the search executed reasonably and was it valid?
Maryland v Garrison
Computers raise particular issues. What if the police are looking for a specific file on your
computer?
How do the police look for a specific file without seeing everything else you have on your
computer?


VII. Warrantless Arrests and Searches of the Person
A. WARRANTLESS ARRESTS O.K.
   1. - United States v. Watson:
      1. Rule: Arrest warrants are not constitutionally required. This is true even where the
         police have sufficient advance notice so that procurement of a warrant would not
         jeopardize the investigation.
      2. Facts: Watson was arrested without a warrant by a postal inspector under 18 USC §
         3061 for distribution of phony credit cards.
      3. Majority opinion: Considerable deference must be shown to congressional statutes
         which construe the ―reasonableness‖ of an arrest (w/o warrant). The CL and the states
         recognize that felony arrests w/o a warrant can be statutorily granted.


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        4. Dissent: A warrant requirement will not unduly burden legitimate gov‘t interest. There
           is little likelihood that a warrant for arrest, issued once PC is est., would grow stale by the
           time the arrest comes to fruition.
        5. The 4th amend. does not differentiate btwn an arrest and a search. However, this case
           seems to make a distinction. A lot of cases say that a search w/o a warrant is per se
           unreasonable, but an arrest w/o a warrant is not per se unreasonable – it is up to
           congressional/statutory mandate.

B. MUST HAVE PROBABLE CAUSE TO DETAIN POST-ARREST –
   1. Gerstein v. Pugh (1975):
      1. If a suspect is arrested w/o a warrant ( but with officer‘s determination of probable
         cause), the 4th Amend. requires a judicial determination of PC as a prerequisite to
         extended restraint on liberty following arrest –can‘t detain a person for a long time w/o a
         warrant or hearing on pc after the initial arrest.
      2. Unlike the appellate court, SCt did NOT require a full formal adversary hearing, but
         rather an informal determination that PC exists to detain the suspect in custody:
         ―Whatever procedure a State may adopt, it must provide a fair and reliable determination
         of pc as a condition for any significant pretrial restraint on liberty, and this determination
         must be make by a judicial officer before or ‗promptly‘ after arrest.‖

    2. What is “prompt determination of PC”
in Gerstein? - County of Riverside v.McLaughlin –
       1. Rule – 48 Hours: The court held that a judicial determination of pc must be found
           within 48 hours of arrest. However, just b/c the determination happens within the 48
           hours after arrest, does not mean that there was not unreasonable delay.
       2. Shift of BOP: The BOP rests with the arrestee to prove that there was unreasonable
           delay if the PC determination occurs within 48 hours. However, if the pc determination
           does not occur within the first 48 hours, the gov‘t has the BOP to show that there was
           no unreasonable delay.

C. SEARCHES INCIDENT TO ARREST –
   1. United States v. Robinson:

        1. RULE: Warrantless Search of person incident to custodial arrest is reasonable.
           You can search the person, his pockets, but not a body cavity search. Didn’t
           really matter b/c the police would have done an inventory search when they
           booked the suspect.

        2. Facts: Officer Jenks arrested D for traffic offense. Jenks informed D that he was under
           arrest and then began a weapons pat down. He found a hard object contained in a
           cigarette pack in D‘s pocket. Jenks further searched the pack and found heroine caplets.



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        3. Rehnquist majority: The authority to search the person incident to a custodial arrest,
           while based upon the need to disarm and discover evidence, does not depend on what a
           court will later decide is the probability that weapons or evidence will be found on the
           suspect due to the particular crime (here, driving w/out permit).

        4. Broad rule, not case-by-case: Any time a traffic or other arrest (even loitering) is
           made, cops allowed to search for weapons and evidence (full body search), as long as the
           arrest is ―custodial‖ – i.e. as long as the arrestee will be taken down to the stationhouse
           for booking.

    2. Unnecessary Arrests
       1. Atwater (p. 221): Mom driving kids w/out seatbelts. Infraction for which only a fine
          was authorized. Cop arrested mom.
       2. Rule: You can take someone into custody. Whether a crime warrants time in jail
          depends on D‘s prior record. Even tho facts of this case don‘t merit an arrest, USSC
          wants a bright line rule.

D. USE OF PRETEXT TO MAKE STOP O.K. –
   1. Whren v. U.S. (1996):
      1. Facts: D.C. officers pulled over a Pathfinder who had made a right turn, without
          signaling, and then sped off at an ―unreasonable speed.‖ The Officer discovered that
          there were two bags of cocaine observed from viewing through the window. Officers
          made the arrest for narcotics. Officers were part of the vice squad and do not normally
          give traffic tickets, in fact they are only allowed to intervene in traffic activities which
          may be severely dangerous.
      2. Issue: Is it permissible to stop a person for a crime ―X‖ when the real reason you made
          the stop was to search for violation of crime ―Y‖?

        3. Rule: As long as there is probable cause to stop vehicle, the stop is constitutional
           regardless of cops‘ subjective motive.

        4. Significance: the police‘s ―real‖ reason for the stop is irrelevant – once the police have
           probable cause to believe that a minor traffic (or other) violation has occurred, they may
           stop the vehicle. If the stop gives them p.c. to believe that contraband is inside, they
           may perform a warrantless search.

E. CAN SEARCH INVENTORY INCIDENT TO ARREST –
Illinois v. Lafayette (1983):
Facts: Officers went thru and inventoried the contents of a D‘s shoulder bag upon being arrested.
They found amphetamines.
Issue: Are the amphetamines admissible or are they excluded under 4th amend.?



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Holding: The court held that the inventory search of the bag is o.k. even where there exists a less
intrusive alternative. The court reasoned that the inventory search protects against theft of D‘s
goods by officers and accusations by the arrestee, upon his release, that his stuff was taken.
Government Actions:
Arrest
Search of bag at the police station
Reasonable b/c of safety and prevent destruction of evidence/drugs; a wallet may contain identity
data. Identification
Safety
Evidence Preservation
No warrant needed b/c it is not investigatory so no need for PC. Reasonable
Is a strip search in the home lawful iwht SILA? Probably not. But, arrestees about to be
incarcerated is reasonable b/c
     1. Inventory Rules
     a. Lawful arrest; Pc and a warrant
     b. Established inventory procedures
     c. Must be planning to arrest the arrestee
     d. Exceptin to warrant and PC b/c not investigatory
     e. Scope is arrestee and all of his belongings.
     f. Strip search would be rare.
     g. This is different from SILA which must be incident to arrest; inventory arrest can happen at
         any time.
     h. Can every lawflly arrested be subjecdted to SILA? Yes
     i. Can ever lawfully arrested person be subjected to inventory? No, must be incarcerated.
     j. Does wingspan apply to inventory? No
     k. Strip search OK for incarceration but not arrest normally.
     l. If inventory is for investigatory purposes, it is OK. Look for pretext arrest as excuse to do
         inventory.
     m. Protect police, safeguard property, prevent false claims
     n. Property protection is the only one that makes real sense. False claims could still happen;
         who puts a bomb in a car at the impound?
     o. Bertine – bright line rule that police can inventory; no need to use less intrusive means.



    2. Opperman (1976):
          a. Police perform inventory search of impounded vehicle. Lower EOP for car b/c
             mobile. Lawful to seize and impound; routine inventory of impounded vehicles to
             protect against false claims; loss of property; protect against potential bombs in cars.
          b. Warrants are for investigatory situations
          c. No investigatory situation here so no need for a warrant or for PC.
          d. Guiding principle to inventories: to protect owners‘ property.


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F. NO SEARCH ALLOWED INCIDENT TO CITATION –
Knowles v. Iowa: Knowles is stopped for speeding and issued a citation. But then the officer
made a full search of the car and found marijuana. The court held that the search was
unconstitutional b/c the justifications in Robinson do not exist here – there is no need to search for
weapons where you are issuing a citation and not making a custodial arrest where danger of harm is
more likely, and there is no need to gather further evidence of speeding through a search of the car.
1/12/04 covered in class.



VIII. Warrantless Searches of Premises, Vehicles, and Containers
A. SEARCHES OF PREMISES WITHIN IMMEDIATE CONTROL
   1. Chimel v. CA (1969) 1/8/04:
      1. Issue: What is the permissible scope of a search that is pursuant to an arrest?
      2. Facts: Here the officers had an arrest warrant for D for burglary and theft of coins.
         Officers then searched (incident to arrest) the entire house for the coins. No search
         warrant.
      3. RULE: A search incident to an arrest is constitutional where it extends to the person
         of the arrestee and the area “within his immediate control” – anywhere, within
         reach - the arrestee could reach to grab a weapon or stash evidence.

    2. New York v Belton
       – “Immediate Control” extended to passenger compartment and glove box and
       contents of containers found in that compartment: When everyone in vehicle arrested,
       cop can search the entire passenger compartment and contents therein– not just where the
       passenger or driver could reach to (this does include the glove compartment, but does NOT
       include the trunk or under the hood).
               a. but how can this be w/in ―grab area‖ of D when D is outside with possible
                   handcuffs?
               b. Case was search of vehicle incident to arrest. Search not pursuant to vehicle
                   exception.

        Government action:
         seize car and occupants
         arrest
         pat down search
         seize marijuana
         search jacket in back seat
         seize cocaine



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        Police did not have a search warrant but they relied in SILA. Applying Robinson and
        Chimel, this would not be legal b/c the jacket in the back seat was not within suspect‘s
        grabbing area. See p. VI-25 last full paragraph in middle. Court wanted to protect the police
        and also they wanted a bright line test.

    3. Hypos
       Can police look in a locked glove box? Locked suitcase on back seat? What if the arrest was
       an hour ago? What if they arrest him in the parking lot? Trunk is out but what if the
       suspect has a fold-down rear seat or hatchback? We don‘t know. But, put this together with
       Atwater, the police can arrest you even if the charge does not involve jail time. Then, they
       can search you and inventory the car.

B. PROFESSOR STRADER/CRIMINAL PROCEDURE/ PRACTICE PROBLEM # 7 – VEHICLES,
   CONTAINERS, AND INVENTORIES

–       Analyze whether the government actions were lawful:

Transcript of phone call received at LAPD, Rampart Precinct, 12:45 p.m.:

        ―There‘s just been a robbery at the Bank of America at 3045 Wilshire Blvd. It was a single
white male. I‘m the teller he robbed. My name is Terry Tush. He got $500 in cash which included
five twenty-dollar ($20) bait bills. I watched the guy as he left the bank. I saw him get in a big, gold
American car driven by a woman who looked to be Asian. The car headed north on Virgil. The guy
was wearing a mask, a cap, reddish-pink sunglasses, and a dark jacket.‖

Police report (assume that the police have probable cause to arrest defendants Barry Bagle
and Karen Kim for bank robbery):

        Received radio report of robbery at BofA at Wilshire near Virgil. Proceeded to area. At 1:05
p.m. saw yellow 1980s model Chrysler Newport driving north on Virgil Avenue one block north of
Wilshire. Followed it for approximately half a mile. Observed that the driver was an Asian-American
female and the passenger was a white male with a cap and sunglasses.

         Followed as car made abrupt left turn onto Fourth Street. The occupants parked at the
curb, got out, and entered an apartment building at 424 Westmoreland. I then looked in the car;
visible on the front seat was a brown leather jacket. At that point, I made a forced entry to remove
the jacket. I also forced open a locked glove compartment, and removed a pair of gloves and
sunglasses that were similar to those described by the bank teller. I then pried open the locked
trunk, and removed a cap inside a locked suitcase. At that point the bank teller was brought to the
scene by Officer Bill Bailey; the teller gave a tentative identification of the car.

       At approximately 1:30 p.m., I saw a man and woman, who looked like the driver and
passenger I had seen earlier, exit the apartment building. The man was carrying a backpack. When

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he saw me, he turned around and placed the backpack inside the front door of the apartment
building, and walked to where I stood on the sidewalk in front of the building. I then detained,
questioned, and handcuffed, the suspect, who identified himself as Bagle, and the other suspect, who
identified herself as Kim. I then forced open the locked front door to the apartment building,
searched the backpack, and seized a mask I found in the pack. I called the garage, and ordered the
car be towed to our storage lot. Then, at 1:45, I phoned in for a search warrant for the apartment.
After further investigation, Officer Bailey took both suspects down to the station, at approximately
3:00.

Report of Search of Automobile at Police Tow Lot

        Two weeks after the arrest, the car was thoroughly searched at the police storage lot. The
officers followed established procedures that allowed them to search and inventory the vehicle
within a ―reasonable‖ time in order to protect the property owner's interests.

         In the back seat, officers found a briefcase. The officers removed the briefcase, and read
through the documents they found; several documents implicated Bagle and Kim in a series of bank
robberies. The police also removed the lining from the trunk, and found $2,000 in cash, included
bait bills that connected Bagle to other bank robberies.


C. PLAIN VIEW WARRANTLESS SEIZURES
   1. Arizona v. Hicks (1987)
Warrantless seizures of item in “Plain View”
   only legit when “immediately apparent” that item is evidence-
   police must have PC to believe that the object is incriminating to search it.
       1. Facts: Officer lawfully entered premises after hearing a gun shot and when in the squalid
           apartment they see an expensive stereo equip. that didn‘t fit in the apt. The officer then
           moved the stereo in order to get the serial number.
       2. Rule: The ―plain view‖ doctrine does not apply b/c at the moment the officer picked up
           the stereo, he did not have probable cause for the search; only had a ―suspicion‖ that the
           stereo may be stolen. Cop can only make a ―truly cursory inspection- one that involved
           merely looking at what is already exposed to view, without disturbing it.‖

D. ABSENT EXIGENT CIRCUMSTANCES, YOU MUST HAVE A WARRANT TO ENTER A HOME TO
   CONDUCT A SEARCH
   1. Vale v. Louisiana (1970):
   1. Had arrest warrant. Arrested Vale on front steps. Searched home without warrant.
              a. A search may be incident to an arrest only if it is substantially contemporaneous
                 with the arrest and is confined to the immediate vicinity of the arrest. If a search
                 of a house is to be upheld as incident to an arrest, that arrest must take place
                 inside the house.
              b. Search was un-constitutional. Needed warrant.

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    2. Illinois v. McArthur (2001):
    2. Protect evidence in trailer by not allowing D in trailer w/out accompaniment.
                a. Restriction was reasonable b/c wife said D had hidden marijuana under couch.
                    In meantime, cops got search warrant.

    3. Payton v. NY (1980:)
    You must have a warrant to enter into a home in order to conduct a search or make an arrest,
    absent exigent circumstances.
               a. Exigent Circumstances may include ―hot pursuit.‖ When the police are in
                    pursuit of a suspect that they have p.c. to belief has committed the crime, and the
                    suspect enters a house, the police can go in w/o a warrant. U.S. v. Santana. Here,
                    however, there was a time lag between the offense and arrest. Exigent
                    circumstances may also exist where the officers have reason to believe that
                    evidence will be destroyed if they wait to get a warrant. U.S. v. Davis.
               b. Dissent: There are CL restrictions on a warrantless arrest:
                    - felony
                    - knock & announce
                    - day-time
                    - stringent probable cause (must also believe D is in the home in order to enter)
               c. Result of invalid arrest: D will still be charged with crime. Primary
                    consequence is just that evid. seized during the arrest will be inadmissible.
               d. Confession stemming from Payton violation: A confession that follows a
                    warrantless house arrest in violation of Payton will not be excluded.

E. SEARCH OF AUTOMOBILES AND CONTAINERS
   1. Automobile Exception to Warrant Rqmt - Carrol v. U.S. (1925):
      exception b/c (1) cars are subject to mobility, and (2) the expectation of privacy with
      respect to one‘s automobile is significantly less than that relating to one‘s home or office‖ –
      this is b/c there are ―pervasive schemes of regulation of automobiles.‖ When there is PC
      to search car, can search car without a warrant.

    2. Containers
          a. U.S. v. Chadwick (1977) – Officers had PC for foot locker, but not car. As soon as
             the container was in the trunk of the car, the officers conducted the search. Rule:
             you must have a warrant to search the container.
          b. Ark v. Sanders (1979) – PC for container in a cab, cab drives off. Since no PC for
             the car, you must have a warrant to search the container. Privacy exception in
             luggage trumps lower EOP in vehicle. Key was that the PC arose before the
             container was put in the car. Evidence Excluded. NO longer good law.
          c. U.S. v. Ross (1982) – If you have pc to search the car then a container found in the
             car can also be searched w/o a warrant. The scope of the larger area (the car)
             encompasses the smaller (the container). Facts: Cops believed Ross selling drugs
             from car and kept drugs in trunk. OK for cops to open trunk and search a closed
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                bag. Evidence admitted b/c PC to search anywhere in trunk. Don‘t use for
                Strader‘s class.

F. PROF. STRADER ANALYSIS OF CHADWICK
Chadwick – is not a vehicle case, it‘s a SILA case. Government actions:
   1. Sniff of locker not a search under Place
    2. Arrest of ‘s. They were at their car in the front seat.
    3. Seizure of Locker
    4. Search of Locker
    5. Court ruled: lower expectation of privacy in a car.
           a. Travel on public streets.
           b. Heavily regulated, giving government more control and lower EOP.
    6. People do have REOP in luggage.
    7. Police can seize containers without a warrant if they have PC.
           a. Court wants a neutral & detached magistrate to issue a warrant; so if the police seize,
               you know they‘ll eventually get a warrant but you still have to wait.
    8. If police illeagally seize evidence and then get a search warrant, the evidence will be excluded
       because the seizure was illegal and the results are fruit of the poisonous tree.
   9. Rule is police wanting to search a container, absent some exigency, must obtain a
       search warrant.
So now you have a privacy expectation in your luggage on the sidewalk but not in your car
b/c vehicles are so heavily regulated, we have very little EOP in our cars. LOW EOP in cars
and in luggage in cars. Container in a car is part of the car for PC and vehicle exception but
NOT for SILA. SILA – only wingspan; open question of locked container or locked glove
box for SILA arrests.

   How to Argue a Case – The Government Arguments in Chadwick.
1. Government argument is broad. Broadest argument: p. vi-35 ―only homes, offices, and private
   coommunications implicate 4A.‖
2. p. vi-37 #4 Government argues that luggage is the same as automobiles for 4A because
   containers, like cars, are inherently mobile. The biggest arguments.
3. SILA – but it did not work due to the 1 ½ hour delay between arrest and search.


    1. Motor home in Public Parking Area w/in Auto Exception - California v Carney:
       (1985) p.260 – D is trading marijuana for sex in mobile home. The USSC applies the
       ―automobile exception‖ to the general rule that a warrant must be secured before a search is
       undertaken.
       It relies on Carrol to find that the automobile exception turns on:
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               (1) the ready mobility of the vehicle (its capacity to be ―quickly moved‖ out of the
                   locality); and
               (2) a reduced expectation of privacy resulting from the pervasive regulation of
                   vehicles traveling on the highways.
        The court refuses to distinguish a mobile home since it was ―used in a setting that
        objectively indicates its use for transportation‖ and fits both rationale for the automobile
        exception.
         Hypo: Homeless man – has possessions in closed containers beneath a public highway.
           State v Mooney- Ct rejected claim that area was his ―home,‖ but D had a reasonable
           expectation of privacy in the closed bags.

    A. When police have PC to believe that a container contains contraband, they may wait
       until the container is in the car, stop the car, and seize and open the container, all
       w/o a warrant - CA v Acevedo: (1991) (p.266):

        1. Issue: Does the 4th Amend. require the police to obtain a warrant to open the sack in a
            movable vehicle simply b/c they lack probable cause to search the entire car?
        2. Facts: D picked up a package the police had PC to believe contained marijuana and put
            it in his truck.
        3. Ct abandons Sanders and Chadwick, which mandate a higher expectation of privacy
            for luggage or containers in the car and requires either a search warrant to search some
            items or probable cause to search the entire car
        4. Rule: The police may search a container in a car w/o a warrant, if their search for the
            container is supported by PC. Cops can only search container b/c no PC to search
            trunk or passenger compartment.
        5. Note: Once cops find pot, they can arrest D. Then they can search passenger
            compartment incident to arrest.
        6. Sanders is no longer good law
            7. Danger in overturning Sanders is that police with PC to look in a bag will wait until
                 you are in the car and then they can look in the bag w/o a warrant.
            8. Also, Police will try to develop PC to search the whole car which is a greater privacy
                 violation.
        9. Police can look in car anywhere they have PC to search, including containers.
            Doesn’t matter whether PC arises before container is put in car or after it’s in the
            car.
        10. Passenger compartment is only relevant to SILA

        Government Actions
        1. Seizure of Acevedo
        2. Search of Pack – recovery of evidence.
           a. But the pack was in the trunk and under Belton, cannot search trunk
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        3. So, court comes up with a new exception: vehicle exception
           a. Government didn‘t use container exception b/c that is an exception to the seizure
               rule; they needed an exception to the search requirement
           b.

    B. Wyoming v Houghton: (1999) (p. 273) – Routine traffic Stop. Belongings of passengers
       are subject to search even if PC exists only for driver.

        1. What is the scope of the search incident to arrest?
        1. Facts: Routine traffic stop. See syringe in driver‘s pocket. Search car incident to arrest.
            Also search purse of female passenger.
        2. Rule: Court relies on Ross: If there is p.c. to search a vehicle, it is justified to search every
            part of the vehicle and its contents that may conceal the object of the search. Ross had been
            broadly applied to all containers in the car, regardless of the ownership. No
            individualized determination of probable cause required for each container.
        3. Balancing Test:
                 (1) Intrusion into privacy: Passengers have a reduced expectation of privacy with
                      regard to property they transport in a vehicle – travel through public
                      thoroughfares, subject to stops by police, exposed to traffic accidents.
                 (2) Gov’t Interest: Otherwise risk that the evidence of contraband will be destroyed
                      or hidden. Passenger may be in a conspiracy with the driver and  stow all the
                      driver‘s belongings in the passenger‘s bag. Difficult to determine who owns
                      which container.
        6. Did Ct apply automobile exception? Or was this a search incident to arrest?

    C. If car impounded, can do full inventory search
       1. Colorado v. Bertine: (1987) (p.283): Ct upholds a police inventorying of a D‘s backpack
    found in his car (which was being impounded) after the D was arrested for drunk driving.
       2. Inventory search or search incident to arrest? Inventory, b/c happened after arrest.
       3. By securing the prop., the police protect the property from unauth. interference, theft,
           and vandalism. They also protect themselves against wrongful accusations of the
           temptation of stealing the prop. Plus, they protect themselves physically in case there is
           a bomb or weapons or explosives aboard.
       4. No requirement for police to use less intrusive means.


G. WARRANT EXCEPTIONS
   What is the Rationale for the Exception?
   What is the scope of the allowable search?
   What must the government show in order to invoke the exception?




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    1. Search Incident to Lawful Arrest
Chimel v. California: p. VI-1 Pre-Payton. So the first action was the entry, assume it‘s valid. Issue
is whether the search of the house and seizure of the coins valid? Wife let them in. Just like
Johnson where police knocked on hotel room door whent they smelled opium. The only issue is
whether that search and seizure was valid. The government argued that when you arrest someone
you should be allowed to search the whole house. Search incident to lawful arrest.

SILA Rule: incident to arrest, police may only search immediate grabbing area. This is allowed for
protection of police and to preserve evidence.

    2. Exigent Circumstances
Vale v. Louisiana: Police arrest guy in front yard and then search house for their safety. Since they
didn‘t have any real info of danger or guns in the house, the Court said no, invalid search. No
exigent circumstances

U.S. v. Robinson: p. VI-12.
    Seizure stop - arrest
    Search frisk
    Search Removal of pocket
    Search of pocket

How intrusive can a search be when it is incident to arrest? No blanket body cavity search.

H. PROFESSOR STRADER/CRIMINAL PROCEDURE/PRACTICE PROBLEMS SET # 5 (WARRANT
   EXCEPTIONS)

For each problem, analyze whether the government actions were lawful.

1.       Deputy Allberry and other officers arrived at Billy Deon's rural trailer home to serve a
warrant for his arrest. Beer cans, broken bottles, and other garbage littered the area around the
trailer. Deon appeared at the door with his bare feet and was directed by the officers to come
outside where he was placed under arrest.
         As Allberry handcuffed Deon, he noticed broken glass on the ground around his feet.
Allberry asked Deon if he had any shoes. Deon said that they were in the trailer. A companion of
Deon's asked his girlfriend, who was also present, if she would go get Deon's shoes. Before the
girlfriend responded, Allberry said to Deon, "Well, let's go inside and get them." Allberry observed
an illegal firearm and seized it.

My Answer: Not a valid search b/c entered home w/o a warrant. Violation of Payton. Also, area
was not under suspect‘s control.
Washington v Chrisman. Police arrest guy in hallway of his dorm and went with him inside to be
sure he didn‘t get a gun. The guy asked to go inside. Roving wingspan. Since the guy wanted to go
inside, his wingspan expanded. So it was OK to search inside. In this case, you have a strong
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argument for the suspect. But, government could also argue exigency in that the wife could grab a
gun; or that the suspect‘s feet could be cut so they needed to protect him.

2.       On the evening of September 20, undercover Agent Bolin entered room 261 at the Eight-
Day Inn Motel at defendant's invitation in order to conduct a narcotics transaction. On one of the
twin beds in the room was an open suitcase in which some clothes and two brown paper sacks were
visible. On the other bed was a case three feet long, one foot wide and three inches thick, which
Bolin thought might contain a weapon. On the night stand between the beds was a clear plastic bag
containing a green leafy substance. Bolin negotiated with defendant for the purchase of
amphetamine tablets, which defendant said he had with him. Arrangements were made to complete
the transaction later that evening. Bolin then left.

        About one hour later, Bolin and four other officers returned to the motel. They had no
warrant. They obtained a pass key from the night clerk, advising him that they were going to make
an arrest and that they wanted the pass key "to avoid damaging the door and to minimize the risk
to the people." They then went to room 261 and opened the door with the pass key.

        As the officers entered the room, defendant was just exiting the bathroom in his
undershorts. Agent Bolin told defendant he was under arrest. Bolin walked over to defendant, took
hold of him, and told him to place his hands up against the wall where they could be seen. Bolin
then advised defendant that he was being taken into custody and instructed him to get dressed.
Defendant proceeded to dress. He was not handcuffed and was allowed to move about the room to
pick up clothing as he dressed.

        Visible in the room at the time the officers entered it were a suitcase lying on one of the
beds and a brown paper sack lying next to it, one of the two paper sacks Bolin had seen earlier that
evening. After placing defendant under arrest, Bolin went over to the bed, looked into the sack, and
found glassine bags containing white tablets. One officer searched the bathroom and found $5,410
in currency concealed in a towel. The officers also opened the suitcase and found a second brown
paper sack containing pills.

My answer: Valid search b/c area was w/in suspect‘s reach. But, they should have tried for a
warrant.
Class:
What are the government actions?
    1) Entry as an undercover agent. Valid b/c consentual.
    2) Entry #2:
           a. Warrant?
           b. Warrant exception?
           c. not consentual b/c person consenting was not the person w/ REOP
    3) Arrest
           a. Assuming entry is lawful, is arrest lawful? Yes, if knock and announce was not
               required.
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    4) Search of the brown paper bag
           a. Yes, b/c within his wingspan
    5) Bathroom search
           a. Not lawful; not w/in suspect‘s wingspan
    6) Search of suitcase
           a. Legal b/c within wingspan and not locked.

3.      In response to a report that John Santo had threatened a neighbor with a handgun, a New
London police officer went to the housing complex where Santo resided. The officer located
Santo's basement apartment. The area immediately in front of it was a concrete-covered porch
which led directly to Santo's front door and to no other apartments. The officer went onto the
porch and knocked on the door. Santo opened the door and spoke to the officer. He denied
threatening the neighbor and refused to allow the officer to search his apartment. The officer then
asked Santo to remain where he was while he went to consult with his supervisor.

        After weighing the witnesses' and Santo's accounts, the officer decided to arrest Santo for
threatening the neighbor. When he returned to the apartment, the door was still wide open and
Santo was still standing in the same place. The officer placed him under arrest, searched his person,
and found a pipe containing narcotics residue.

My answer: valid search of person in custody under Robinson.
PC to arrest based on neighbor‘s complaint.
Incident to arrest he searches the guy; OK SILA
But, the guy is standing in the doorway do you need a warrant?
U.S. v. Santana – don‘t need a warrant on the doorstep (threshold) b/c open door means no
REOP. That assumes entry onto curtilage is lawful. Does Payton apply or is it arrest in a public
place?

4.       At about 3:50 a.m., a woman called a county sheriff's office claiming that a man had shot at
Marc Cole at a state campground. Officers who were responding to the call talked to the occupants
of a vehicle leaving the campground. The occupants told them that Kenneth Goo was "hurting
people" at the campground and had "fired shots." Closer to the campground, the officers found
Mark Cole. Cole said that Goo had fired a shot in his direction after a fight in which Goo had tried
to "stick [Coles] head into the fire." These incidents had occurred between midnight and 2:00 a.m.

         The officers arrived at the campground entrance around 5:00 a.m. and then waited for the
arrival of another deputy and a reserve officer. It was daylight by the time three of the officers
headed toward the campsite itself. During their journey of approximately one mile, they
encountered a young man who told them that Goo was in his tent with a woman.

        When the officers arrived at the campsite, all was quiet. Goo had been living in the tent for
several days and had no other residence. The officers ordered him to come out, patted him down,
and arrested him. They handcuffed him and locked him in a patrol car twenty yards from the tent.

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They then ordered the other occupant, Mary Baler, to come out of the tent. The officers entered
the tent to search for the firearm. One of them found a loaded handgun under Goo's air mattress.

My answer: invalid search; no exigent circumstances.
THIS WAS THE FINAL EXAM QUESTION TWO YEARS AGO. RED ALERT.
Staleness on Probable Cause
Did he consent to come out of the tent?
PC to searcht the tent? They are looking for a gun since the guy was accused of shooting a gun in
the park. PC to arrest is good; to search it may be stale due to time lag.
Do they need a warrant?
Yes. Why? B/c it is functioning as his house. If the camp rangers have strict regulations that llow
them to enter your tent, then maybe no. But, most homeless cardboard shacks and tents are seen as
defacto homes.
If so, then knock and announce.
Is there an exigency issue? It‘s been 3 hours and he is in custody. If the person who was shooting is
in handcuffs, then there is no exigency to search.


I. PROFESSOR STRADER/SCALE CRIMINAL PROCEDURE/PRACTICE PROBLEMS # 6/
   WARRANT EXCEPTION PRACTICE PROBLEMS CONT'D

For each problem, analyze whether the government actions were lawful.

1.        The defendant rented a residence and garage and agreed that his landlord would have
permission to enter the premises in his absence to make repairs and to mow the lawn. On June 17,
the landlord went to the residence to make repairs. In the garage he observed boxes of chemicals.
He made a list and took it to a chemist friend who told him the chemicals posed no hazard. The
list included P2P, ether, and formaldehyde.

        When the landlord went to the property to mow the lawn on July 12, he noticed a pungent
chemical smell. Because it was a hot day, he became concerned about a possible hazard. He called
the police and asked that someone come to check out the garage and its contents, but informed
them that the situation was "not an emergency.‖

        A police officer arrived two hours later. When no one answered the defendant's front door,
the officer and the landlord started down the driveway. The landlord showed the officer the list of
chemicals he had made a few weeks earlier. The officer was aware that the listed chemicals are used
to manufacture illicit drugs. He also knew that they could pose a risk of explosion. However, he
could not smell the odors described by the landlord, possibly because he suffered from hay fever.

       The officer opened the garage and observed boxes of chemicals. He called the fire
department and the narcotics squad. The latter arrived and seized chemicals in both the garage and
house.
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Class:
Landlord‘s entry is not a search; not a government agent and he was invited.
Entry into garage and later into house.
No warrant
No consent – landlord cannot consent
Look for warrant exception
Are they pursuing a fleeing armed robber as in Warden? No
So what is the exigency? Danger that the chemicals would pose if those chemicals were still in the
garage.
Is his knowledge stale? It‘s almost a month (June 17 to July 12).
The policeman cannot smell the chemicals due to allergies; but the landlord can smell.
The policeman probably had time for a search warrant based on the landlord‘s complaint that day.
Calling another officer to smell might give rise to PC and then a warrant.
Landlord said it was not an emergency
Police cannot confirm chemical smell
Staleness of information.
Court in this case held no exigency.
Don‘t forget the curtilage. If they called another officer to smell, could it be a search if he entered
the property?
For exigency, the rmust be NO TIME.

2. Late on Christmas Day a woman was robbed and raped by a man who said he had a gun. The
victim walked home and immediately called the police. 45 minutes after the crime, investigators
escorted her back to the scene, where they found two sets of footprints in the fresh snow. The
officers concluded that one set belonged to the victim and that the other was made by a person
wearing footwear with a distinctive zigzag pattern.

        Using a bright flashlight, an officer began following these footprints, which, at some points,
indicated that the person was traveling at a run. At other places, the person doubled back over his
own prints or walked in vehicle tracks. Two hours after the crime, the footprints eventually led to
Room 11 of the Alpine Motel, several blocks from the crime scene.

        The lights were on in Room 11 and noise from a television or radio could be heard. After
radioing for backup and ascertaining that one male was registered in Room 11, the officer knocked
on the door. Dow, clad only in his underwear, opened the door. Dow's appearance matched the
victim's description of her assailant. The officer identified himself and entered the room. Dow's
boots were drying on the radiator. The pattern on the soles matched the zigzag in the tracks the
officer had been following. Dow was then arrested.
Is there PC to arrest before the entry? Yes, the tracks to the room and he matches the description.
Do you need a warrant to enter the room? The government will argue hot pursuit. Hot pursuit is
when you follow suspect from the crime. Supreme Court has not ruled on cases like this, but some
courts call it warm pursuit.

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Police knocked but did not announce.
If the police arrested him, then they had PC for a wingspan search SILA.

Welsh
   1) Seriousness of Crime
   2) Government need
Drunk driving case, considered not an emergency b/c DUI was not a big deal way back then.

IX.  Investigative Stops: Stop and Frisk
A. TERRY V. OHIO:
     A. No p. cause nec to stop and frisk for weapons. Just need r. suspicion that D is
         armed and dangerous individual. Balancing test: nature and extent of government
         interest justifying intrusion vs. privacy interest of citizen.
         1. Officer observed suspicious behavior exhibited by two men on a street corner and
             wanted to investigate. The issue turned not on whether the investigation was proper
             but whether there was a justification for officer‘s invasions of D‘s privacy by
             searching him in the course of the investigation.

              2. D argued that officer is never justified in making the search—officer must wait until
                 there is PC1 for arrest. Ct rejects this primarily on officer‘s safety grounds.
              3. Officer need not be certain individual is armed—issue is whether a reasonably prudent
                 man in the circumstances would be warranted in the belief that his safety or that of others was in
                 danger. In justifying the intrusion, officer must be able to ―point to specific and
                 articulatable facts which, taken together with rational inferences…reasonably warrant
                 that intrusion.‖ Facts are judged by an objective standard.

              4. Seizure began when cop laid hands on D, exercised dominion over D. Seizure must
                 be reasonable at inception and in scope.
                 a. officer did have specific facts that D was armed. Reasonable, individualized
                     suspicion
                 b. frisk was limited to search for weapons

B.    WHAT IS A SEIZURE?
      1. Florida v. Bostick: consent searches are valid.
             1. Test: taking into account all of the circumstances surrounding the encounter, would reasonable
                 person feel free to leave? [reasonable innocent person test]
                 a. Was there a seizure? Was it reasonable/justified? Was search product of illegal
                      seizure? If consent to search, was it freely given?
                 b. Hold: No seizure. Cop interaction w/ D on bus. Cop asked to see his ticket,
                      announced they were randomly checking for drugs. Cop asked to search bag and
                      D said yes.

1
 Probable cause
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                c. Dissent: D was clearly not ―free to say decline consent‖. Several factors:
                   intimidating show of force (weapons bulging from all angles) by the police and
                   the fact that D has no reason to know that police can‘t hold his refusal to
                   cooperate against him. Also, D can‘t get off the bus—confrontation by police in
                   unfamiliar territory only ―aggravates the coercive quality of the encounter‖.
                d. Weiselburg strongly agrees with dissent. Looks at the factual situation in this
                   case: where were the officers standing, what were they wearing? Were they
                   armed? Etc.

    2. Drayton:
          4th Amend does not require officers to tell suspect they have right to refuse consent.

    3. California v. Hodari D.:
           D sees police and flees, is pursued on foot by officer and throws a crack rock as he runs
           away. Ct holds that the officer did not ―seize‖ D w/o reasonable suspicion because
           there was no seizure by him yelling ―stop‖. ER does not apply.
               a. although officer did make a ―show of force‖ (chasing/yelling stop) D did not
                   submit or yield to this show of force. (throwing crack doesn‘t count).
               b. Rule: Seizure is either physical force or submission to the assertion of authority.
               c. Policy issue: unlawful orders to ―stop‖ will not be deterred by applying the ER
                   to the orders that are ignored.
               d. Dissent: consequences of maj. holding is that it will encourage unlawful displays
                   of force that will frighten innocent citizens into surrendering their privacy rights.
                   (remember: here there was no PC or reasonable suspicion!)

C. SUMMARY OF TESTS:
A seizure does not happen until:
               - suspect submits to police authority
               - a reasonable person in the suspects position would believe he was not free to
                   leave
               - stop and frisk is seizure




X.    Grounds for Temporary Seizure for Investigation
A. WHAT IS REASONABLE SUSPICION?
   1. Arvizu (supp p. 13):
      USSC reversed 9th Cir. Look at whole picture. Cop said he had r. suspicion. There is some
      deference to the agent‘s judgment.




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     2. Sibron v. United States:
        Unreasonable Terry search because it was not based on safety of officer, but based on what
        officer knew about D. ER applies.

            a.  Officer saw D talking to 9-12 different people he knew to be addicts. Officer didn‘t
               overhear any of the conversations to see anything pass between them. Officer
               approached D and said ―you know what I am after‖ and D stuck hand into coat as
               officer simultaneously grabbed into coat and retrieved heroin.
            b. Ct held there was a lack of grounds for the frisk and that it was made in an improper
               manner. There were not even grounds for a stop—―for all he knew, they could have
               been talking about the World Series‖

     3. Florida v. J.L:
        Anonymous tip D at bus stop had gun. Cops did not see D do anything suspicious. Cops
        frisked D and found gun
                a. Anonymous tip alone seldom demonstrates the informant‘s basis of knowledge
                     or veracity.
                b. Different if tip is that person has bomb and there is greater threat to public
                     safety.

     4. United States v. Sokolow:
        Fitting drug courier profile amounts to reasonable suspicion.
                a. Ok for officers to rely on info provided by airport
                b. Does not require case-by-case analysis

     5. Illinois v. Wardlow:
        Flight alone is not reasonable suspicion (but can be a factor).

                 a. Unmarked police car was cruising in high crime neighborhood, saw D standing
                    at curb and when he saw the officers, he fled. Police pursued, did a Terry pat-
                    down and found a gun—that search was challenged as unreasonable under the
                    4th.
                 b. Here stop occurred in a high crime area. Other factors to consider: time of day,
                    number of people in area, character of neighborhood, whether officer was in
                    uniform, was the runner was dressed, the direction and speed of flight, and any
                    unusual behavior

B.   WHEN DOES SEIZURE END?
     1. Ohio v. Robinette:
        a warning that person is free to go after the valid detention of a car stop is NOT
        necessary as a prerequisite for voluntary consent to search the car. Consider here:
        when has the seizure ended and does the officer have a duty to tell (this is foreshadowing to
        the issue in Scheckloth!)

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                    a. Officer on drug interdiction patrol stopped D for speeding, checked record
                       and found nothing. Asked D if there were any drugs in the car, D said no.
                       Cops asked to search the vehicle and D consented.
                    b. Dissent argues that officers failure to tell D he was free to leave means that a
                       reasonable person would not feel they were free—seizure had not yet ended
                       at the time consent was obtained and seizure by that time was illegal b/c it
                       had exceeded its lawful purpose and thus ER should apply. Dissent also
                       considered that this tactic was used to make 786 consent searches in one
                       year.

C. SCOPE OF PROTECTIVE SEARCH?

    1. Dickerson:
       Officer determined the lump was contraband only after squeezing, sliding, and otherwise
       manipulating the outside of the D‘s pocket after the officer knew it contained no weapon
               a. Cop must immediately recognize object as weapon or contraband
               b. Diff than Robinson: there search was incident to arrest, so full search was
                   allowed.


XI.    Administrative Searches
A. INTRO REMARKS
    1. When is warrantless search appropriate?
              What is the quantum of cause or suspicion?
              How do we police the boundary between criminal law searches and regulatory
              searches?

            1. Generally reasonable when:
               a. Individualized or reasonable suspicion (Terry) that is less compelling than is needed for
                  the usual arrest or search; or
               b. some neutral criteria employed which guards against arbitrary selection of those
                  subjected to the procedure.

B. SAFETY INSPECTIONS
         1. Camara v. Municipal Court: if occupant did not consent to inspection, the officer
            would ordinarily have to get a warrant. No p. cause necessary b/c there are
            reasonable legislative or administrative standards for conducting an area health
            inspection.
         2. Ct has upheld warrantless business inspections by emphasizing the closely regulated
            nature of the business and that the scope of the inspection is closely regulated by
            time and place.


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            3. Burger: upheld warrantless inspection of junkyard for stolen property. Less
               expectation of privacy when industry is closely regulated.
            4. Clifford: Fireman can enter burning building and investigate the cause of the fire.
               But later entries without consent require a warrant.

C. BORDER SEARCHES:
   1. US v. Ramsey upheld customs inspections of mail.
         1. Rule: Border searches considered reasonable by the single fact that the person or
             item had entered into our country from outside. No individualized suspicion
             needed.
   2. Non-Routine searches:
         real suspicion is needed for a strip search and ―clear indication‖ is needed for a body
         cavity search. In US v. Montoya de Hernandez, Ct held that where customs agents
         ―reasonably suspect that D is carrying drugs ―internally‖, she may be detained as long as
         necessary to verify or dispel suspicion. But quantum of proof is still less than probable
         cause.

D. VEHICLE CHECKPOINTS
         1. Almeida-Sanchez: Roving border patrols need PC to search. But only Terry-type r.
            suspicion necessary to inquire about resident status.
         2. Martinez-Fuerte: For permanent checkpoint away from border, still need PC to
            search car but brief questioning w/out r. suspicion is OK.
         3. Prouse: can‘t randomly stop drivers to check driver‘s license and registration without
            reasonable suspicion.
         4. Michigan Dept of State Police v. Sitz: upheld sobriety checkpoint program b/c
            intrusion is slight, program sufficiently limited officer‘s discretion, program
            addressed serious problem, and checkpoint system was a reasonable alternative for
            dealing w/ problem.
         5. BROWN TEST FOR CHECKPOINTS:
                    1) Balancing the state's interest in curbing drunk driving
                    2) the effectiveness of sobriety checkpoints in achieving that goal
                    3) and the level of intrusion on an individual‘s privacy caused by the
                         checkpoints (Test from Brown v. Texas).
         6.

E. STUDENT SEARCHES, DRUG TESTING 2/3/04
   1. 1. New Jersey v. T.L.O. high school student caught smoking cigarettes. Found mj in purse
      and a list of buyers
               a. Public School = State Action
               b. PC and Warrant Normally Required
                       1. All Court Members agreed no warrant required if school official is
                           conduction a search to enforce the school‘s rules and regulations.
                       2. This was a full search based only on RS.

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             c. created balancing test between student‘s legitimate interests of privacy and the
                  school‘s equally legitimate need to maintain an environment in which learning
                  can take place.
             d. No warrant req‘d. Just need reasonable grounds for suspecting search will turn
                  up evidence.
             e. Body Cavity or Strip Search: depends on who is doing the search and what they
                  are looking for. Must do a reasonableness balancing. A weapon threat might
                  warrant a more intrusive search than otherwise.
             f. Search based on no suspicion – question was witheld.
    2. Vernonia v. Acton: randomly test student athletes.
          Students voluntarily participate in athletics. Invasive aspect kept to a minimum. School
          found there was an increase in drug use. Lower expectation of privacy for athletes.
          2. Earls: students in any extra-curricular activity can be drug tested.
          3. Nat‘l Treasury Employees v. Von Raab: upheld suspicionless testing of customs
             workers who were on the front line of drug interdiction. Privacy interest outweighed
             by the compelling interest of the government.
          4. Skinner v. Railway Labor: upheld blood and urine testing of railway worker
             following accidents or safety violations. Again the special interest of the government
             outweighed the privacy interest. Testing was in part a response to a national safety
             problem on the railways.

F. SPECIAL NEEDS V. ORDINARY LAW ENFORCEMENT

            1. Edmond: fixed checkpoint. Not for administrative purpose, but looking for drugs. It
            was a seizure b/c checking for ―ordinary criminal wrongdoing.‖ Not looking for driving
            under the influence. If DUI check, it would have been OK.
            2. Ferguson: test pregnant women in hospital for cocaine. Central feature was law
            enforcement, these women were prosecuted. Women did not consent to search.
            3. Camara – Searches – Regulations
            4. Von Raab – Searches – Customs Agents
            5. Skinner – Searches – RR employees, post-accidents
            6. Martinez-Fuerte – stopes – Immigration / Borders
Balance – minmal intrusion and compelling government need are both required. Also, per Brown,
to what degree does the government action fulfill the government need?

G. CONSENT SEARCHES

        A. Schneckloth v. Bustamonte: Consent must be voluntary.

            1. Rule: Whether consent is voluntary is determined by totality of the circumstances.
               D does not have to know he has right to refuse consent.
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            2. Voluntariness is determined looking at two competing concerns
               a. the legitimate need for searches
               b. assuring the absence of coercion
            3. 9th circuit here held that State must affirmatively prove that D knew he had a right to
               refuse consent to a search—Ct says that as a practical matter it would be impossible
               to use a rule like this, too hard to prove.
            4. ―impractical‖ to impose a warning requirement, consent searches are a standard
               investigatory technique, not a formal or custodial situation akin to Miranda
            5. D argues that consent is a waiver of the right to refuse under 4th and 14th A‘s and thus
               under Johnson v. Zerbst doctrine, state must demonstrate an intentional
               relinquishment or abandonment of a known right of privilege. Court rejects the
               application of the Zerbst waiver standard.
            6. Dissent: consent is only a meaningful choice if D knew he could refuse. Police are
               capitalizing on the ignorance of citizens to accomplish by subterfuge what they could
               not achieve by relying on the knowing relinquishment of constitutional rights.

        B. Illinois v. Rodriguez [third party consent]: When officers obtain consent be a third-
           party to enter and search premises, they must only reasonably believe that person
           has the authority to consent.
           1. warrantless search of an apartment, girlfriend consents to the search, unclear if she
                really lives there or not. Officers find coke in apartment.
           2. Determination of consent to enter is based on an objective standard: would the facts
                available to the officer at the moment warrant a man of reasonable caution to believe
                that consenting party had authority over the premises. (note lack of bright line rule!)
           3. Dissent: since third-party consent searches are not based on exigent circumstances,
                no social goal is served by allowing ones made by an erroneous belief by officer.
           4. ChuckyW: This issue reminds us of what the purpose of the ER is: deter bad cop
                behavior. A rule which keeps evidence out despite good faith efforts of cops is not
                useful in meeting this goal.

        C. Miscellaneous Notes on Who May Consent:
           1. Husband/Wife: there is a presumption that a spouse has the authority to consent to
              a search of all areas of the home—other spouse can rebut this presumption.
              (query—what is the effect of this standard on Rodriguez?)
           2. Parent/Child: parent can consent to search of kids room if the kid is not an adult,
              child can‘t give consent to search home.
           3. Landlord/Joint Tenant: LL may not consent to search of T‘s premises. Hotel
              employees can‘t consent to search of guest‘s room. Where two people to more live
              together-either can consent to search of whole are, regardless whether there are
              separate bedrooms.
           4. Employer/Employee: depends on how much control employee exerts over the area
              being searched—how private it is.


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H. PROF. STRADER/ CRIM PRO/PRACTICE PROBLEMS SET # 8 – CONSENT

1.       Boyce was a paid confidential informer. He was arranging to purchase cocaine from John at
John's residence in Pittsburg, Kansas. The purchase did not go as planned. Surveillance officers
witnessed Boyce leaving the residence and driving away in a truck with two other males. The officers
lost visual contact while following the truck. Soon thereafter, Officer Harrison, who was driving the
pursuit vehicle, saw the truck at a car wash. John was washing it.

         After several hours passed without contact from Boyce, Officer Harrison grew concerned
for his safety. Accompanied by another officer, Harrison knocked on John's door and identified
himself as a police officer. He saw four .44 caliber shells on a coffee table. He then informed John
that he had received a telephone call telling him that Boyce was at John's residence, and that he had
a parole violation warrant for Boyce. Both of these claims were false. John acceded to Harrison's
request to be admitted to the house to look for Boyce. While walking through the house, Harrison
saw an open duffle bag containing guns and a gun rack with shotguns. After searching the house for
ten minutes, the officers left.

        Boyce's body was later found at a strip pit. He had been shot twice. Evidence seen during
the entry of John's house was later seized and used to link John to Boyce's murder.

Was the entry that led to the discovery of the evidence valid?

2.     Delores was a passenger in the front seat of an automobile driven by Ruth Boolman.
Officers stopped the vehicle to investigate a possible vehicle license violation. After ascertaining that
there was no problem with the license, one officer stated that the area was a high drug-traffic area
and that the officers were checking vehicles. Boolman, outside of Delores' presence and without her
awareness, gave consent to a search of her car for drugs.

        Officers removed Delores and three other passengers. Delores left her purse on the front
seat. During the search of the car, officers opened the purse and found a pipe and a substance that
they thought was cocaine. They seized the items. After ascertaining that the purse belonged to
Delores, the officers arrested her. Later, she was charged with possession of narcotics.

What claim should Delores raise? Should it be successful?




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3.       Sean and Will were identified by eyewitnesses as the perpetrators of a bungled holdup that
resulted in the fatal shooting of a taxi driver. Detectives Spive and Martin went to an apartment on
Manida Street that was occupied by Sean, hoping to find him there. They were greeted at the door by a
young woman who identified herself as Kim, Sean's sister. The detectives informed her that they were
looking for Sean in connection with a shooting. Kim told them that she and her daughter were the only
ones home. She volunteered that Will also stayed at the apartment, sleeping in Sean's bedroom "on and
off' for a week at a time. One of the detectives asked her whether she had seen Will or Sean with a gun.
She replied that one day Sean had shown her daughter a shotgun, and that she "got upset" and had an
argument with him about it. She thought "he had gotten rid of it."

        The police then asked Kim if they could "look in Sean's room," and she agreed. She led them to
a bedroom and pointed out which bed was Will's and which was Sean's. One of the officers patted
Will's bed, then lifted the mattress. Under the mattress he discovered a blue canvass duffel bag which
was zipped closed. He unzipped it and found a shotgun, two shotgun shells, and personal clothing. The
detectives seized the bag and its contents. The next day they had Kim sign a letter confirming that she
had given the police permission to enter the apartment.

Did Kim's consent justify the searches of the room and duffel bag?




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I. STATEMENTS

  A. Due Process/ Voluntariness and Right to Counsel

     A. Historical: Before Miranda and 5th Amen cases, USSC held that confessions must be
        voluntary under DP clause. Three primary interests protected by the Due Process
        ―voluntariness‖ test for admitting confessions
        1. Reliability- Barred use of confessions which were unreliable because of the police
            methods used to obtain them
        2. Police Conduct- Barred use of confessions produced by offensive methods even though
            reliability was not an issue
        3. Involuntary in fact- Barred used of confession which were involuntary in fact (obtained
            from a drugged person) even though they were reliable and there was n police
            misconduct
        4. Note: primary rationale for barring confession that are not given voluntarily is that they
            are unreliable! The confession rule was designed merely to protect integrity of fact-
            finding process. Initially, the court merely looked at voluntariness. In the Warren
            heyday, however, the court started looking at police conduct as a guide for exclusion.
            -ex. Brown: police beat suspect.

     B. The Shortcoming of the Voluntariness Test
        1. It is an ambiguous term and a mix of factual and legal elements, invites judges to give
           their own weight to different facts. Police have a hard time knowing where the lines are
           when Ct looks at totality of the circumstances.
        2. It is hard to prove psychological or mental coercion
           -ex. Payne: 19 yr old D, not bright, fed 2 sandwiches in 40 hrs, told ―people want to get
           him.‖
        3. Issue becomes a swearing match b/t police and D and D usually loses.

     C. Right to Counsel and the Analogy to the Accusatorial, Adversarial Trial:
     in early pre-Massaih and Gideon cases, USSC upheld convictions
                    1. said no DP violation even when D requested counsel and was refused
                    2. concurrences and dissents point out that DP requires that the accused who
                         wants counsel should have one at any time after the arrest
                    3. Spano (1959): once a person was formally charged by indictment or
                         information his constitutional right to counsel had begun, at least with
                         counsel he had retained himself. Court found confession inadmissible on
                         coerced confession grounds (not right to counsel).

     D. Strader timeline
        Pre-charge pre-trial          trial. Prior to Massiah, it was only at trial

     E. Massiah v. United States:
     6th A right to counsel violated- D’s statements could not be used against him at trial
         1. After being released on bail, D (who already had been indicted and had a lawyer) went
             with his co-D into a car. Co-D wore a wire and police obtained several incriminating
             statements from D.
         2. ISSUE: Does 6A apply to pre-trial period?
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         3. Hold: Denied right to counsel when agents deliberately elicited incriminating stmts
            from him after he had been indicted and in absence of his counsel.
         4. RATIONALE: You now have a right to counsel during pre-trial period b/c it was a
            critical stage of the proceeding. Knowing, voluntary & knowing waiver of rights don‘t
            make sense b/c it was an undercover agent.
         5. Dissent: unable to see how this case presents an unconstitutional interference with the
            right to counsel. The statements were voluntary under DP test.
         6. Class: Michigan v Jackson Rule: you need a judicial proceeding in process +
            appointment of a lawyer or a lawyer is requested, then 6A attaches.

     F. Escobedo v. Illinois (1964):
     6th Amend violated when investigation focuses on a particular suspect who is taken
     into custody, and D requests his lawyer during interrogation and is denied the lawyer.
     All incriminating statements are excluded.

     1. D‘s interrogation was done before any judicial or adversary proceedings were made. D was
        taken to station house and he asked repeatedly to see his lawyer. Lawyer came and asked
        repeatedly to see D. Instead Police interrogated D and D made incriminating statements.
     2. Factors: investigation no longer a general inquiry into an unsolved crime but has focused
        on D, D taken into custody, police interrogate to elicit incriminating stmts, D has requested
        and been denied opportunity to consult with lawyer, and police have not warned him of
        right to remain silent
     3. 6th amend applies to states via 14th (Gideon)

J. II. MIRANDA (1966)

                                A. Miranda v. Arizona:
                                5th A is violated if statements are taken w/out giving a proper
                                warning. Warning must include: The rt. to remain silent; That anything he
                                says can be used against him in a court of law; That he has the rt. to the presence of
                                the attorney; and that if he cannot afford an attorney one will be appointed for him
                                prior to any questioning if he so desires.

         1. 5th Amend: No person will be compelled to be a witness against himself
         2. Miranda applies when
            a. Custody
            b. Interrogation

         3. safeguards necessary to dispel compelling pressures inherent in custodial
            interrogation to make stmts truly voluntary
         4. Waiver must be made ―voluntarily, knowingly and intelligently.‖ Silence (failure to
            ask for lawyer) is not a waiver.
            a.     Can invoke rights at any time: thus even if the suspect first indicates that he is
                   waiving these rights, he can stop answering questions at any time or request an
                   atty at any time and the questioning must then cease.

         5. Police must still give Miranda warning even if suspect already knows rights.
         6. Right to Counsel
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            (1) Right applies only when questioning occurs
            (2) Police don‘t have to give warning that atty will be provided if the are sure that the
                suspect has one or can afford one, but the court urges them to do so anyhow.,
            (3) Right to counsel is a rt to have the lawyer present not just a consultation.

        7. Inadmissibility – A stmt obtained in violation of the Miranda rules will be inadmissible
           as prosecution evidence, regardless of whether other factors indicate that the statement
           would meet DP ―voluntariness‖ test.
        8. Leg. Substitute: majority states that the M warnings must be given ―unless other fully
           effective means are devised to inform the accused of their right to silence and to assure
           a continued opportunity to exercise it.‖ Does this mean that Miranda warnings are
           merely ―prophylactic?‖ Think Dickerson.
        9. In Miranda the court located the rt to counsel in a 5th amend. context – rt. against self-
           incrimination. SO while the rt to counsel is within the 6th amend. the court effectively
           absorbs this rt into the 5th amend.
           a. remember, 6th Amend only attaches when charged w/ crime. What about Escobedo?


XII. III. Implications and Interpretations of Miranda
    A. Impeachment exception

        1. Harris v. NY (1971): statements preceded by defective warnings, and thus inadmissible
           to establish the prosecution‘s case-in-chief, can be used to impeach the D‘s credibility if
           he chooses to take the stand in his own defense.
        2. OR v. Hass (1975): Even if D requests lawyer, and police violate M by continuing
            interrogation, stmts can be used for impeachment.
        3. Before Miranda, 5A only applied to testimony in Court. We have a self-incrimination
            clause b/c of our adversary system of justice. We don‘t require defendants to take the
            stand because of the adversary system and also because it enforces a barrier between us
            and the government. Keeping the government in check.


    B. Michigan v. Tucker (1974):
    Miranda warnings are procedural safeguards not Constitutionally req’d. Warnings
    protect right against compulsory self-incrimination.

        1. Miranda rights are not themselves constitutional rts. which cannot be violated –
           Miranda is merely prophylactic in protecting const. Rts
        2. Here the officers disregarded Miranda but Ct holds that it was inadvertent and the
           procedural rules of Miranda should not have a consequence here. It is only a practical
           safeguard that was not needed here.
        3. Some derivative evidence of Miranda is not excluded b/c Miranda not constitutionally
           required so can be limited.

    C. New York v. Quarles:


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       recognized the public safety exception to Miranda. The ―need for answers to Q‘s in a
       situation that poses a threat to the public outweighs need for a prophylactic rule.‖
           1. Ct here also seems to crumble the Miranda-established irrebutable presumption of
               coercion in the absence of Miranda warnings. Instead focus on whether there really
               were any coercive or improper tactics by police.
           2. Does Public Safety Exception apply if  has already asserted his right to remain
               silent?
                    a. Prosecutor – argue voluntary waiver; balance individual interest against
                       government interest. Miranda not as firmly rooted.
                    b. Defense - If Counsel is requested, Edwards governs so 6A kicks in and it is
                       much stronger and more firmly rooted than Miranda.

       D. OR v. Elstad (1985):
       The fact that the police had earlier obtained a stmt from D in violation of M when questioned
       in his home did not bar the admissibility of subsequent stmts obtained at police station when,
       this time, the police complied with Miranda. As long as both statements were voluntary, no
       exclusion required under DPC.
                       a. Prior Coerced Confession (See Mosley)
                          ―When a prior statement is actually coerced,
                               1. the time that passes between confessions;
                               2. the change in place of interrogations;
                               3. and the change inidentity of the interrogators
                          all bear on whether that coercion has carried over into the second
                          confession.

       E. DICKERSON: (2000)

           1. 4th Circuit held that the pre-Miranda due process-voluntariness test set forth in § 3501,
           governs the admissibility of confessions in federal courts.
           3. USSC: Miranda is a constitutional decision. It may not be overruled by an Act of
                Congress, ―and we decline to overrule Miranda ourselves.‖
           4. But violation of M is not a per se Constitutional 5th Amend violation. If it was, Miranda
                violation and compulsion violation would be the same on the chart below.

                                  Exclusionary Rules and the Dickerson Dilemma

           Violation                 Statement can’t be       Impeachment Use?           Fruits may be
                                     used in                                             used?
           5th A- Miranda            Case-in-chief            Yes                        Yes
           5th A- Compulsion         Case-in-chief or any     No                         No
                                     other part of case
           5th & 14th A              Same as above            No                         No
           DP/Voluntariness

Prysock – Court said lying about who pays for lawyer doesn‘t invalidate Miranda 6-3
Duckworth      police said no court appointed lawyer in police station but yes in court. 5-4 it‘s OK.


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Miranda      only applies to testimonial utterances by defendant. Remember Schmerber – the blood
             sample case. So, if it‘s not something to do with your thoughts or words, then no Miranda.
             If you sign a release to let the police go into your bank account, it‘s not a Miranda issue
             (See Doe case.)
Hypo:        Police stop you for DUI. The police want to introduce evidence of your slurred speech,
             date of 6th birthday, name address and current age, and count from 10 backwards. Is this
             stuff testimonial. ANSWERS TO ROUTINE BOOKING QUESTIONS ARE NOT
             TESTIMONIAL. Date of 6th birthday requires thougt, so that was ruled testimonial.
             Everything else wasn‘t.
Hypo:      police interrogate patient in hospital who is screaming for treatment and says he won‘t talk
           w/o treatment. Statement is out. But, can the guy sue the police for damages? No. Chavez
           v. Martinez.
I.      CUSTODY, WARNINGS, AND INTERROGATION

        A. Adequacy of Warning: Duckworth v. Eagen (1989):
           1. Facts: D warned ―We have no way of giving you a lawyer, but one will be appointed for
             you, if you wish, if an when you go to court.‖
           1. Rule: warning is valid if it reasonably conveys to a suspect his right as req‘d by M
           2. Spring (1987): Police did not tell D he was murder suspect. So was waiver knowing and
               voluntary?
               a. Rule: Suspect does not need to be aware of all possible subjects of questioning. Ct
                   said police did not trick or deceive D.

        B. Meaning of Custody

            1. Beckwith (1976) rejects Escobedo‘s ―focus of investigation‖ test. Private interview in
               home did not equal custody despite fact that D was the ―focus‖ of the investigation
            2. Objective test: Would r. suspect believe he was in custody? ―Officer‘s unarticulated
               suspicions through out interview do not effect the objective circumstances and thus
               don‘t affect the assessment of whether the person is in custody.‖ (Stansbury v.
               California)

            3. Basic on the street Q-ing is not custodial (as long as D is free to leave). So if D
               questioned in public park, DP voluntariness test applies.
            4. D voluntarily went to the stationhouse. Not custody. (Oregon v. Mathiason)

            5. Even if D goes to the stationhouse accompanied by an officer, if he goes there voluntarily
               and is specifically told he is not under arrest, no Miranda warnings necessary.
               (California v. Beheler)

            6. Roadside questioning of a motorist detained pursuant to a routine traffic stop does not
               amount to custodial interrogation. (Berkemer v. McCarty) Detention is only
               temporary/brief and in the public eye which reduced ability of officers to use
               illegitimate means of coercion.

        C. Meaning of Interrogation: Rhode Island v. Innis:

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Direct questioning or its functional equivalent.
   1. D was arrested for murder with shotgun, Given M warnings twice, D asks for lawyer.
        While in patrol car, officers talk to each other about how they hope the gun is found
        because there is a school for handicapped children nearby. D says to go back—he will
        show where the gun is.
   2. No express questions to D. But was conversation reasonably likely to elicit response
        from D?
   3. Test: definition of interrogation extends to words or actions on the part of police
        officers that they should have know were reasonably likely to elicit an incriminating
        response. Here Ct finds no interrogation b/c officer should not have known that his
        stmts were likely to elicit a response.
   4. Concur calls it a ―calculated appeal‖—classic technique to appeal to D to confess for
        the sake of others or to display some evidence of honor and decency.

D. Arizona v. Mauro:
Not custodial interrogation to put two suspects together (husband and wife) in the same
interrogation room to let them talk when recorder is in plain view.
    1. It was the wife‘s idea—she demanded to talk to him. To find interrogation here would
        thwart the deterrent rationale of Miranda—the government officers did not recommend
        or suggest any actions here.
    2. Definitely custody b/c took place in interrogation room. But the questioning was not
        coercive in any way.

E. Jail House Plant-Surreptitious Interrogation: Illinois v. Perkins
: Miranda warnings are not required when the suspect is unaware that he is speaking to a law
enforcement officer and gives a voluntary statement.
   1. Here a secret government agent was planted in jail with suspect and induced him to talk.
       Coercion is determined from the point of the suspect.
   2. This not a 6th A violation under Massiah b/c 6th A is offense specific. Here suspect was
       being approached on an unrelated charge that the one he was in jail for.
   3. Dissent: Miranda was not only concerned with police coercion—it dealt with any police
       tactics that may operate to compel a suspect in custody to make incriminating
       statements.

F. Booking Exception: Pennsylvania v. Muniz:
Questions asked for the purpose of booking a suspect are not ―interrogation‖ under Miranda.
   1. D is booked for DUI, asked Q‘s and answers were recorded. Not Mirandized.
   2. Court holds that statements are admissible (evidence of slurring) b/c slurring is not a
       testimonial response to the interrogation. Standard booking questions are OK b/c they
       do not require thinking.
   3. 6th birthday Q, however, is excluded because the response itself (correct or not) is
       incriminating as opposed to just the manner of the answer.

G. Public Safety Exception (again) New York v. Quarles:
 Miranda warnings are unnecessary prior to Questioning that is ―reasonably prompted by a
concern for public safety.‖ Need to find weapon.
    1. D was chased into a grocery store (public place) and caught. Cops asks, ―Where‘s the
       gun‖ w/o giving Miranda. Statement is admitted under this exception.
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        2. Objective standard: Availability of exception does not depend upon the motivation of
           the individual officer-- whether a reasonable officer would conclude a threat to public
           safety.
        3. Govt bears burden of proving safety exception. Actual coercion may still be shown—
           the exception is not automatic admittance
        4. Ct applies a cost benefit analysis to the case—warnings are prophylactic in nature, thus
           court can weigh the cost of the right protected against the value of public safety.
        5. Consequences of Quarles (CW): (1) reinforced ides that Miranda warning was not
           entrenched in the 5th A; (2) cost-benefit analysis represents a wholly different view of 5th
           A then that represented in Miranda; (3) vague and ill-defined exception to the warning
           req. reduced efficacy of Miranda‘s bright line rules. [notice, however: the Ct has not
           approved any other exception in the next 14 years.]
        6. O‘Connor: would allow weapon to be evidence, but not D‘s statement. Nothing in M
           requires exclusion of non-testimonial evidence.


A. INVOCATION, REINTERROGATION AND COUNSEL

                              A. Invocation?
                              Fare v. Michael C.: juvenile arrested, in custody, asks for his probation
                              officer does not amount to invocation of Miranda right
          1. Ct says that lawyer plays unique role in system— request for probation officer is not
             the same as request for lawyer.
          2. Instead, D‘s waiver must be assessed on the ―totality of the circumstances surrounding
             the interrogation‖ (e.g. age, experience, background and intelligence.
          3. Dissent: For a minor, a probation officer is like a lawyer

        B. Reinterrogation after suspect asserts his rights:
           1. Michigan v. Mosley: the admissibility of statements obtained after D has decided to
           remain silent depends of whether his right to cut off questioning has been
           scrupulously honored.
                  a. D arrested for a robbery. Invoked 5th Amend right to remain silent, and all
                       questioning ceased. After two hours, D was brought out of cell to be
                       questioned about an unrelated murder. Re-mirandized and waived rights. D
                       made incriminating statement.
                  b. Hold: No violation b/c there was a significant amount of time btwn
                       interrogations, questioning was restricted to another offense, D was given M
                       warnings again and D waived rights.
                  c. CW issues: does this amount to wearing a person down? What if D is
                       arrested for 5 robberies and is Qed about one and then the next, etc? what
                       if there was some signature about the robbery that makes it easy to link D to
                       it—he admits to one and you‘ve got him for all.

        So, what could we change about this case to get a different result? Passage of time and
        fresh Miranda are clearly the keys.


                               B. Invocation of the Right to Counsel
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                              (does a distinction between the 5th and 6th A make sense?):

1. Edwards v. Arizona:
       Once a suspect invokes 5th Amend right to lawyer, all questioning must cease until he either
       gets a lawyer or he himself initiated contact with police.
           a. Here D asked for atty and questions stopped. Cops came back the next day and
                questioned him more about the same offense.
           b. If police continue questioning and D responds to the questions, this does not
                constitute a waiver.
The concurring opinions in Edwards thought there was coercion due to ―you have to talk‖.

2. Bradshaw
   Def initiates conversation. What does ―initiate‖ mean?
      1. General Communication?
      2. Communication relating to case?
   Court tied 4-4.

   Hypo: Quarles, rape suspect arrested in grocery store, they asked about gun, pre-Miranda;
   public safety exception. What if he was Mirandized and then the police asked about the gun?
   Open question, we don‘t know. We don‘t know if there is a public safety exception to the right
   to counsel. 4thCircuit has said yes, there is an exception to Edwards but didn‘t apply in the case
   they were hearing. US v Mobley

3. Arizona v. Roberson:
      Request for counsel is more potent that the request for silence in Mosley. Assertion to right
      to counsel means that D can‘t be questioned on any offence, even a different one.
          a. But, A Calif Supreme Ct Case, People v. Storm, held: Edwards does not apply when
             D is released from custody after requesting attorney. Here cops then went to D‘s
             house and D made statement.
          b. CW: When should invocation end? It wouldn‘t last 20 years.

4. Minnick v. Mississippi: (expands Edwards)
      After counsel is requested, police may not question a suspect without the lawyer
      present. It is not enough to afford D a lawyer, officials may not reinitiate interrogation
      without counsel.
          a. Even though D given opportunity to consult w/ counsel, police cannot talk to D
             again unless attorney is present.
          b. Counsel may have been ineffective because the exchange could have been hurried
             or brief. Lawyer may not have had the opportunity to discuss the range of issues
             that are important.
          c. Dissent: rule represents an irrebuttable presumption that all confession should be
             excluded---this will make it impossible for police to ever get a voluntary confession
             after D invokes right to counsel.
             Protects police w/ a bright line rule; protects voluntariness of waiver. The right to
             Miranda is supposed to protect against coercion. If you invoke the right and it
             doesn’t end the coercison, then you have a problem.


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   5. Davis v. United States:
         ambiguous reference to a lawyer (―maybe I should talk to a lawyer‖) is not enough to
         trigger Edwards.
             a. Whether or not D actually invoked right to counsel is an objective inquiry: must be
                 a statement that reasonably construed to be an expression of desire for assistance of attorney. If
                 statement fails to meet requisite level of clarity, Edwards does not require police to
                 stop questioning.
             b. Concurrence: timid and verbally inept suspect is not protected here—there should
                 be a duty to clarify D‘s statements that seem like they may be invoking right to
                 counsel.
             c. Majority says no duty to clarify an ambiguous ―invocation.‖ W/o clarification, does
                 D actually feel like he has the right to invoke? Case is about risk of error—who
                 bear the burden to clarify the mistake?
             d. Hot topic in the law: implied waivers where D knew his rights and then talked,
                 making it implicit that D knowingly waived. This is a developing area and
                 statements of such have been admitted by the CA SCt.
             e. Remember the standard for intentional waiver of a known right: Johnson v. Zerbst:
                 knowingly and intelligently relinquished the right—high standard of proof.
                 6-3 decision – it is a reasonable police officer question; officer does NOT have a
                 duty to clarify ambiguous invocations.

           1. Michigan v. Jackson: D requested counsel at arraignment. Before counsel was
              obtained for them, police obtained waivers and questioned them. Ct holds waivers
              invalid. Rule: Requesting counsel during arraignment prevents cops from getting M
              waiver later in order to interrogate for the same crime.

           2. McNeil v. Jackson: 6th A right is offense specific and one who invokes 6th A
              right at a formal legal proceeding has less protection than one who asserts her
              Miranda-Edwards right at custodial interrogation.
              a. Suspect‘s assertion to 6th A right to counsel does not serve as an invocation of the
                  5th A Miranda-Edwards right to have counsel present during custodial interrogation
                  on a different offense.
              b. D‘s public defender is not necessarily representing him on other offenses.

          3. Moran v. Burbine: Only D can invoke Miranda.
              a. D is in custody, police are told that D has a lawyer, question him anyway after
                  getting a series of written waivers from him and get a confession.
              b. D argues that confession must be suppressed because by with-holding information
         Two inquiries:
                  that lawyer was trying to reach him, police deprived him of information essential for
                     to make a free deliberate choice
                - Dis waiver knowing waiver of right. and not the result of coercion AND
                    does D have an awareness ct finds that events occurring outside the presence of
              c.- Police culpability not an issueof right and of the consequences of abandoning that
                     and
                  Dright.unknown to him can have no effect on his ability to relinquish a
                  constitutional right. Court overrules Escobedo.
              d. Rule: No duty for police to tell D that his sister retained a lawyer for him. D‘s
                  waiver is valid, his pre-arraignment confession is allowed as evidence.

Right Invoked                         Reinterrogate on Same Crime?            Reinterrogate on Diff Crime?

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Miranda- 5th A Silence              Courts split                          Yes- Mosley
Miranda- 5th A Counsel              No                                    No- Roberson
6th A Right to Counsel              No-Jackson                            Yes- McNeil & Cobb


B. D. MIRANDA: OTHER PROCEEDINGS

          1. Estelle v. Smith: 5th and 6th A‘s are violated when a psychiatrist uses information
             gathered to determine if D is competent to stand trial to later testify as to D‘s future
             dangerousness at the sentencing phase.
             a. D was not given Miranda warnings, nor was permission from counsel obtained.
             b. Violation of both 5th and 6th A‘s
                 -5th b/c D‘s testimonial evidence was used to sentence/execute him
                 -6th b/c D had been indicted and assigned counsel before the examination (Massiah
                 violation)

          2. Allen v. Illinois: It is not necessary to give Miranda warning to those who are
             interviewed in determining whether they are a sexually dangerous person for
             commitment.
             a. Here court totally relies on the ―civil‖ nature of the proceeding. Ct find this to be
                 determinative even though the implications of the hearing look, smell and feel like a
                 criminal conviction and subsequent incarceration.
             b. Rule: Miranda protections only apply in criminal proceedings

          3. Comparing Miranda w/ Prohibition against Use of Involuntary Statements and
             the 4th A ER: Withrow v. Williams: After a person has had a trial and appeal at the
             state level, can Miranda claims be adjudicated in federal habeas corpus?
             a. Federal habeas is usually limited to violations of federal constitutional rights. So the
                 ? is: is Miranda a Constitutional rule?
             b. Surprise: Since D can claim his conviction violates DP in fed court, Court will allow
                 him to make M claim too
             c. In Stone v. Powell: 4th A claims can‘t be raised on federal habeas appeal. Since the
                 4th A violation is complete at the time of the search, applying the ER to habeus
                 would have no deterrent effect. USSC declines to extend Stone to habeus setting.
             d. Miranda protects a trial right—guards against the use of unreliable stmts at trial. If
                 D‘s stmts at the stationhouse are admitted, D would be compelled to take the stand
                 to disavow statements.

      E. IMPACT OF MIRANDA IN PRACTICE AND TECHNIQUES

       Cassell and Scholhofer are in hot debate over whether or not Miranda has made an impact on
       law enforecement.
           1. Cassell argues that there has been a huge drop in confessions
           2. Scholhofer maintains that the drop is not that big and can be attributed to other factors.
           3. These studies may help form the basis of opinion in Dickerson.

       Issues to consider:

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           1. If Miranda has had no impact, why are people defending it?
           2. It is negatively effecting police, why aren‘t they more vocally upset about it?

       F. DUE PROCESS, VOLUNTARINESS AND RIGHT TO COUNSEL REVISITED 2/10/04

           1. Why Voluntariness Test Still Matters: While Miranda displaced the voluntariness-
              due process-totality of the circumstance test, in a number of important situations, the
              primary criterion of confession admissibility is still the old test.
                     a. Admissibility of statements given after a valid waiver of Miranda rights is
                          still made on the basis of the voluntary test.
                     b. What kind of police trickery or coercion is OK after Miranda rights have
                          been waived—does waiver open D up to the whole gamut of coercive
                          techniques?

           2. Miller v. Fenton: Court finds that a confession is voluntary despite officer’s gross
              display of sympathy and blatant appeal to conscience.
              1) Tactics: police said whoever committed murder is not a criminal, but needs
                  psychiatric help, giving vague promises of help and leniency. Ct found that while
                  psychological plays may play a part in the suspect‘s decision to confess, so long as
                  the decision is a product of the suspect‘s own balancing of competing
                  considerations, it is OK.
              2) Court looked at totality of the circumstances and found that, despite fact that the
                  interrogation was 1 hour and that D collapsed into a state of shock after confessing,
                  all was voluntary.
              3) Ct considered age, intelligence, past criminal history etc in determining the
                  voluntariness.
              4) NOTE: Where there is an express promise of leniency the courts are more likely
                  to find involuntariness.

           3. Compare: Arizona v. Fulminante: Where there is an explicit promise to protect D
              if he talks, court finds coercion and holds statement to be involuntary.
              a. paid FBI informant offers to protect D in prison. D confessed.
              b. Hold: There was a credible threat of violence and thus D‘s will was overborne is
                  such a way as to render his confession the product of coercion.
              c. Rule: Harmless error rule applies when stmt is involuntary.

            4. Colorado v. Connelly:
coercive police activity is a necessary predicate to a finding that a confession is not voluntary
w/in the meaning of DP; absent police conduct causally related to the confession, there is simply no
basis for concluding that any state action had deprived D of due process of the law.
                a. Mentally ill man approaches cop voluntarily and says voice of God told him to
                   confess.
                b. Issue: Is confession product of his own free will?
                c. Shift in the way that that Court thinks about voluntariness: Old school
                   concerns focus on reliability. New school looks at police conduct and whether
                   there was actual coercion.
                d. Suppressing the statements here would serve no purpose in enforcing constitutional
                   guarantees.
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               e. Note: The DP clause of 5th Amend applies to federal govt.

   1. Brewer v. Williams (Williams I, 1977):
         Exclude statements made in response to the ―Christian Burial Speech‖ based on violation
         of 6th A right to counsel.
             a. D had a meeting with counsel, he was instructed not to talk. Police knew he was
                 getting mental health treatment, called him ―reverend‖ and gave a while spiel about
                 burying the girl.
             b. D had been arraigned already. So judicial proceedings began. Judicial proceedings=
                 formal charge, preliminary hearing, indictment, info, arraignment (Kirby). D had
                 also retained a lawyer, who had made it clear that no interrogation was to occur
                 during the trip from Des Moines to Davenport.
             c. Rule: Cops can‘t deliberately elicit information from D after adversary proceedings
                 have commenced.
             d. This is only a 6th A case because at this time Miranda was still new. Today Edwards
                 would apply.
             e. Remember to examine all basis of exclusions: Brewer came before Innis (gun will
                 hurt kids if we don‘t find it). This case is easier than Innis because here the police
                 are talking directly to the suspect. Williams was in custody. But whether he was
                 interrogated w/in meaning of Miranda is not an issue b/c case decided on 6th A
                 grounds only.
             f. D can waive 6th A right. But cop would have to ask, ―Are you now waiving your
                 right to an attorney?‖
             g. Defense should cite Spano; where they used his friend Bruno to psychologically
                 manipulate the suspect into waiving his right
                      a. Police initiated interrogation under Miranda – violation of Edwards
                      b. Even if not interrogation, invalid waiver
                      c. But these 5A issues not addressed b/c Court decides on 6A grounds
             h. On 6A the issue is did the police intend to elicit an incriminating response.
             i. 5-4 decision
             j. Dissent argues that the multiple Miranda waivers indicate a knowing intelligent
                 voluntary waiver.
             k. Maj: deliberate elicitation; even if officer did not goof up and admit it, it still looks
                 like deliberate elictiation and the cops refused to allow the lawyer ride along with
                 him.
             l. 5A interrogation test vs. 6A test.


                          Investig.               48 hrs.              Pre-Trial                 Trial
5A (Due Process)                Miranda applies for custodial interrogation at any phase.
5A (Self-Incr.)
6A



          5. Waiver of 6th Amend right: Patterson v. Illinois


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         a.  Miranda warnings sufficiently appraise D of his right to an attorney and the
            consequences of waiving that right therefore, his waiver of 5th A Miranda rights is
            equal to a knowing and intelligent waiver of 6th A right.
         b. Court says that neither right is ―superior‖ and that 6th A is not more difficult to
            waive than 5th A.
         c. Footnote 9: Holding does not mean that all 6th A challenges to conduct would fail if
            the conduct passed under Miranda. Example: Court has permitted Miranda waiver
            to stand where a suspect was not told that his lawyer was trying to reach him during
            questioning. (Moran v. Burbine) In the 6th A context this would not be valid.

    6. Maine v. Moulton: (1985)
    Incriminating statements pertaining to pending charges are inadmissible at the trial of those
    charges, notwithstanding the fact that the police were also investigating other crimes, if, in
    obtaining evidence, the State violated the 6th A by knowingly circumventing the accused
    right to the assistance of counsel.
        a. This is a super confusing case. It is best analyzed in light of Massiah.
        b. Facts: co-D cooperates with police and puts a bug in the phone. (both those two
             were charged in a car parts ring criminal conspiracy.) Co-D tries to get info about
             D‘s plan to kill off a Witness. D makes incriminating statements that make it easier
             for him to be prosecuted for the car parts crime he was already indicted for. Ct
             holds that the statements can‘t be used in the car parts trial but can be used if there
             is a killing-a-W trial. 5-4 Rule – Massiah applies regardless of who initiates the
             conversation.

    7. US v. Henry: (1980)
    Plant did not question D about the crime, but he ―was not a passive listener; rather he had
    some conversations w/ D while he was in jail and D‘s incriminating statements were the
    product of this conversation.‖
        Rule: Violation of 6th when agents intentionally created situation likely to induce D to
        make incriminating stmt

    8. Kuhlmann v. Wilson:
    (1986) Jailhouse informant‘s report of D‘s unsolicited incriminating statements about the
    crime did not violate 6th A.
        a. Facts: Without any prompting, D told plant the same story he had told the police.
            Plant advised D that his story ―didn‘t sound too good.‖
        b. Plant ―at not time asked any questions of D concerning the pending charges, and
            he only listened to D‘s spontaneous and unsolicited statements.‖
        c. Case illustrates the line between active and passive agents—between
            ―stimulating‖ conversations with the D in order to ―elicit‖ incriminating statements
            and taking no action beyond listening.
        d. Hypo: Could state put microphone in jail cell? Certainly a passive listener. Would
            this violate 6th Amend?
        e. Hypo: Assume D had asked for counsel. Why no Miranda violation? B/c plant is
            not an officer. (Perkins).

    9. TX v. Cobb (2001):

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         a. D indicted for burglary and counsel was appointed. While in custody, D waived M
            and confessed to murders of woman and child who lived in house he robbed. Both
            of the crimes are factually related.
         b. Rule: But 6th A is offense specific. ―Where the same act or transaction constitutes a
            violation of two distinct statues, the test to determine whether there are two
            offenses or only one is whether each provision requires proof of a fact which the
            other does not.‖ Blockburger.
         c. 6A only applies to charged crimes (per Massiah). 6A is charge specific.
         d. This case reverses Brewer v. Williams.
         e. Under Texas v. Cobb, his 6A right to counsel has not attached because he had not
            yet been charged with the murder.
         f.




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                              SCOPE OF THE EXCLUSIONARY RULES

I. Standing to Object

A. Background:
   As a general rule, the defendant may assert the exclusionary rule only to bar evidence obtained
   through violation of his own constitutional rights. Thus, lower courts had developed the
   doctrine that a defendant lacked “standing” to challenge the evidence seized in violation of a third party’s
   constitutional rights. This rule was ―based on the theory that the evidence is excluded to provide a
   remedy for a wrong done to the defendant, and that accordingly, if the defendant has not been
   wronged, he is entitled to no remedy.‖
    People v. Martin (1955) California Approach=No standing requirement:
    CA S.Ct. struck down standing requirement because it ―virtually invites law enforcement officers to
    violate the rights of third parties and to trade the escape of a criminal whose rights are violated for
    the conviction of others by the use of the evidence illegally obtained against them.‖
    Alderman v. United States (1969)
    USSC=Standing required: ―suppression of the product of a Fourth Amendment violation can be
    successfully urged only by those whose rights were violated by the search itself, not by those who
    are aggrieved solely by the introduction of damaging evidence.‖
    Rationale: Court felt that ―additional benefits of extending the exclusionary rule to other
    defendants would not justify further encroachment upon the public interest in prosecuting
    criminals.‖

                 1. Use of the Federal Courts’ “Supervisory Power” to Overcome the Standing
                    Requirement”
                    a. U.S. v. Payner (1980):
                    “The supervisory power does not authorize a federal court to suppress
                    otherwise admissible evidence on the ground that it was seized unlawfully
                    from a third party not before the court.”
                       (1) Facts: IRS agent illegaly seized briefcase belonging to officer of Bahamas
                            bank and copied 400 documents. One of these docs led to prosecution of
                            D, a customer of the bank. Since D had no privacy interest in the briefcase
                            or the documents in it, he was not entitled as a constitutional matter to have
                            the evidence suppressed.
                       (2) Rationale: Again, the court noted that ―the interest in deterring illegal
                            searches does not justify the exclusion of tainted evidence at the instance of
                            a party who was not a victim of the challenged practices.‖

                 2. Automatic Standing
                    a. Basic Problem: Occurs when D is charged with a crime where possession of
                       an item is an essential element. (Possession of narcotics or stolen goods). In
                       these cases D is in a dilemma if he wishes both to assert that he never had
                       possession, and at the same time to contend that his possession of the item
                       entitled him to object to its illegal seizure. If he denies possession, he may lose
                       his ability to show that he had a legitimate expectation of privacy with respect to


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                 the item‘s seizure, but if he admits that he had possession, he will have
                 conceded an essential element of the prosecution‘s case.

                 (1) Jones v. U.S. (1960): lower court denied standing b/c D failed to assert a
                     possessory interest in the apt searched or the drugs found. But such an
                     assertion would force D to allege facts that would tend to convict him. The
                     USSC therefore concluded that D had ―automatic standing‖ to allege the
                     unconstitutionality of the seizure, since possession of the items seized was
                     an essential element of the offense charged.

                 (2) Simmons v. U.S (1968): established a general rule that testimony by the
                     defendant at a suppression hearing cannot be used against him at
                     trial.
                     -This rule permits D to allege possession at the suppression hearing; if he
                     loses at the hearing, he can then deny possession at trial, and his early
                     allegation of possession cannot be used against him.
                     -Ct privileges rule against self-incrimination

                 (3) US v. Salvucci (1980): abolished Jones “automatic standing” rule and
                     held that Ds charged with crimes of possession may only claim the
                     benefits of the ER rule if their OWN 4th A rights have been violated.
                     -The dilemma identified in Jones was eliminated by Simmons, which
                     additionally grants use immunity to D‘s charged w/ non-possessory crimes

         3. Residential Premises:
            a. RULE: One with a present possessory interest in the premises searched, e.g.,
               a member of the family regularly residing in a home, may challenge that search
               even though not present when the search was conducted.
               -Alderman: ―If the police make an unwarranted search of a house and seize
               tangible property belonging to third parties, the home owner may object to its
               use against him, not because he had any interest in the seized items but because
               they were the fruits of an unauthorized search of his house, which is itself
               expressly protected by the Fourth amendment.‖

         4. Business Premises:
             a. Mancusi v. DeForte (1968): Crucial issue is “whether the area was one in
                which there was a reasonable expectation of freedom from governmental
                intrusion.”
                -Facts: Police seized records belonging to a union local from an office D shared
                with others. Court said he still could reasonably have expected that only those
                persons would enter the office, and that the records would not be touched
                except with their permission or that of union higherups.
             b. Consistent with Mancusi, a corporate or individual D in possession of the
                business premises searched has standing, and an officer or employee of the
                business enterprise has standing if ―there was a demonstrated nexus between the area
                searched and the work space of the D.‖
         Note that Minnesota v. Carter (no reasonable expectation of privacy when purely
         business purpose) could also fit under this category
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        B. The Current Approach

             1. Rakas v. Illinois (1978):
             Standing depends on whether the police action sought to be challenged is a
             search (i.e., a violation of legitimate expectations of privacy) with respect to the
             person challenging the intrusion.
                a. Facts: Police stopped a car in which Ds were riding as passengers, suspecting
                    that the vehicle might have been the getaway car in a recent robbery. Police
                    searched the interior of the car and found a rifle under the front passenger seat
                    and a box of rifle shells in the locked glove compartment. The court held that
                    Passenger-Ds did not have legitimate expectations of privacy; neither the glove
                    compartment nor the area under the car sear are areas in which a passenger
                    would normally have a legitimate expectation of privacy.
                b. Neither passenger asserted ownership in the items taken from the car. The
                    Court seemed to imply that if the passengers had done so, they could have
                    challenged the police conduct.
                c. ―Standing‖ is not an issues separate from regular 4th Amend analysis.

             2. Rawlings v. Kentucky (1980)
             one CANNOT challenge a search of an area (in this case another person’s purse)
             simply because he claimed ownership of the property seized during the search.
                a. Facts: D and Ms. Cox visiting house of Marquess. Police arrived with a arrest
                    warrant for Marquess on drug charges. While there, they conducted search of D
                    and several other visitors, including Cox. D claimed ownership of drugs found
                    in Ms. Cox‘s purse.
                b. Rationale: D couldn’t challenge the search b/c none of his rights were
                    violated by it. The question was whether D had a legitimate expectation of
                    privacy right Cox‘s purse and its contents. Because D (1) had apparently stuffed
                    the drugs in Cox‘s purse only moments before the police arrived; (2) had no
                    right to exclude others from looking through Cox‘s purse; and (3) admitted that
                    he had no subjective expectation that the purse would remain free from
                    governmental intrusion, D had no legitimate expectation of privacy in the purse.
                c. CW says Ds detention was unlawful while police obtained search warrant for
                    house. But Court said detention was in a ―congenial atmosphere‖ and that D‘s
                    admissions were spontaneous reactions to the discovery of his drugs in the
                    purse, and not the product of the initial illegality.

C. GUESTS
                 a. General Rule: Where the person is a social guest at a private home, she
                    generally has a legitimate expectation of privacy in that home. (Minnesota v.
                    Olson). But where a person‘s visit is solely for a business purpose, the Court
                    is likely to find that the visitor had no such legitimate expectation of privacy
                    regarding the premises, especially where the visit is a brief one. (Minnesota v.
                    Carter).
                 b. Minnesota v. Olson (1990): D‘s status as an overnight guest showed that he
                    had ―an expectation of privacy in the home that society is prepared to recognize
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                         as reasonable.‖ Thus he had a sufficient interest in the home to challenge the
                         legality of the warrantless entry there.
                      c. Minnesota v. Carter (1998): Where a person visits a house only briefly, and
                         does so for a purely business purpose, no legitimate expectation of
                         privacy exists.
                         Facts: Ds spent 2 ½ hours in a third person‘s apartment bagging cocaine for
                         resale. Cop standing outside the building peered into the apartment through
                         half-drawn blinds. Cops searched D‘s car and the apartment. Ds made motion
                         to suppress drugs found in car and apt.

                        Court stressed (1) the purely commercial nature of the transaction engaged in; (2)
                        the relatively short period of time on the premises; (3) and the lack of any previous connection
                        between respondents and the householder.
                            -Hold: Ds did not have legitimate expectation of privacy in the house.
                            -If cops had probable cause to search apartment, car search is also legit b/c
                            car search is frit of the first search.
           C. Strader Update 3/2/2004
1. 4A Standing = LEOP or your privacy, liberty, or possessory interest is challenged. Seizure affects
   your liberty interests.
2. 5A = Who can move to exclude statements made in violation of Miranda? Only the person against
   whom the statement is offered at trial.
3. 6A = Right to Counsel. Who can challenge? Only the person against whom the evidence is
   offered and whose right to counsel was abused.
4. These rules limit the exclusionary rule but serve the legitimate societal goal of punishing criminals.
5. Good Faith = searches with warrants only. Officer must be acting in good faith. Leon. Does not
   apply if:
        a. Magistrate must be neutral and detached.
        b. Officer must reasonably believe there is PC – if warrant is facially invalid or is not
           reasonably particular.
        c. If no officer could reasonably find PC
        d. Warrant is still invalid but the exclusionary rule doesn‘t kick in b/c purpose is to deter
           police misconduct, not judicial misconduct




XIII. II. FRUIT OF THE POISONOUS TREE
A. The doctrine that illegally obtained evidence shall not be used for the purpose of gaining other
evidence; once the original evidence, the ―tree,‖ is shown to have been unlawfully obtained, all evidence
stemming from it, the ―fruit,‖ is equally unusable. Silverthorne Lumber Co. v. United States (1920)
               1. Independent source: ―If knowledge of the evidence is gained from an independent
                   source it may be proved like any other, but the knowledge gained by the Govt‘s own
                   wrong cannot be used by it in the way proposed.‖

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                2. Nardone v. United States (1939): Attenuation Doctrine—even when evidence does
                   not have an independent source, it may still be admissible--connection between
                   violation and information obtained can become ―so attenuated as to dissipate the
                   taint.‖
                3. Intervening Act of Free Will – Ceccolini – Attenuation through intervening act of
                   free will.

A. ATTENUATION
Under the derivative evidence doctrine, secondary evidence discovered by exploitation of the initial
illegality will be suppressed unless it is sufficiently attenuated from the initial illegality to be purged of
the original taint. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v.
Stortroen, 53 Wn. App. 654, 660-61, 769 P.2d 321 (1989). Under the derivative evidence doctrine courts
apply a but-for analysis. State v. Aranguren, 42 Wn. App. 452, 457, 711 P.2d 1096 (1985). In
determining whether there is a nexus between the evidence in question and the police conduct, the
court essentially makes a commonsense evaluation of the facts and circumstances of the particular case.
United States v. Kapperman, 764 F.2d 786 (11th Cir. 1985).

Whether a confession, or a consent to search, is tainted by a prior illegal arrest:
        (1) temporal proximity of the arrest and the subsequent consent,
        (2) the presence of significant intervening circumstances,
        (3) the purpose and flagrancy of the official misconduct, and
        (4) the giving of Miranda or Ferrier warnings.
See, e.g., State v. Gonzales, 46 Wash. App. 388, 398, 731 P.2d 1101 (1986). The burden is on the State to
prove sufficient attenuation from the illegal search to dissipate its taint. State v. Childress, 35 Wash. App.
314, 316, 666 P.2d 941 (1983). The single most ―significant‖ intervening circumstance is actual
consultation between the suspect and an attorney prior to obtaining the confession or a consent to
search. See, e.g., Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22 (3d Cir. 1965) (opportunity to meet with
attorney prior to questioning constitutes sufficient attenuation).
If the testimony of a live witness is derivative of illegally obtained evidence, this weakens the case for
suppression b/c witness can come forward of her own volition and testify (Ceccolini)

Hypo
Police come into home and arrest w/o warrant – Payton violation. They Mirandize him and he
confesses. Is the confession admissible? The Miranda warning in Elstad attenuated 5A Miranda
violation. So, does it attenuate a 4A violation? Brown v Illinois. Says no unless greatly removed as in
Wong Sun.

            B. Verbal evidence as the “fruit” of illegal search and seizure: Rule: Verbal evidence
            which derives so immediately from an unlawful entry and an unauthorized arrest is no less
            the fruit of official illegality than the more common tangible fruits of the unwarranted
            intrusion.

                1. In Wong Sun v. U.S., (1963) six cops illegally broke into Toy‘s laundry. Toy then told
                    agents that Yee had been selling narcotics. The agents then went to Yee who
                    implicated Toy and Wong-Sun.

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                     a. Hold: Both Toy‘s declarations and the narcotics taken from Yee to which Toy‘s
                        declarations led the police had to be excluded as the fruits of the agents‘
                        unlawful entry into Toy‘s bedroom and the bedroom arrest.

                     b. But check to see if the statement is too attenuated: although Wong Sun
                        had also been unlawfully arrested, his confession was not the ―fruit‖ of his
                        illegal arrest. Since he had been released on his own recognizance after a lawful
                        arraignment and had returned voluntarily several days later to make the
                        statement, "the connection between Wong Sun‘s arrest and his statement had
                        ‗become so attenuated as to dissipate the taint.‖

6. Independent source v. Inevitable discovery

               1. Independent source: The exclusionary rule has no application when the Government
                   learned of the evidence from an independent source. This means that if not even a
                   ―but for‖ test can be satisfied, the challenged evidence is not a fruit of the prior
                   violation—a violation of a person‘s rights should not put him beyond the law‘s reach
                   if his guilt can be established by evidence unconnected with or ―untainted‖ by the
                   violation.

               2. Inevitable discovery: The question is not whether the police actually acquired
                  certain evidence by reliance upon an untainted source, but whether evidence in fact
                  obtained illegally would inevitably or eventually or probably have been
                  discovered lawfully.
                           a. Most frequently applied when the police misconduct occurred while an
                               investigation was already in progress and resulted in the discovery of
                               evidence that would have eventually been obtained through routine
                               police investigatory procedure. The illegalities in such cases, therefore,
                               had the effect of simply accelerating the discovery .

7. Confession as the “fruit” of an illegal arrest.

   1. Brown v. Illinois:
                                          Miranda warnings do not per se purge the taint of an
                                          illegal arrest. 3/2/2004
                           a. Facts: D was arrested without probable cause. At police station, D was
                              given Miranda warnings, and interrogated. Within 2 hours of his arrest,
                              D made an incriminating statement. Several hours after that, in a second
                              interrogation (again prefaced by Miranda warnings), D made a second
                              incriminating statement.

                           b. Court decline to adopt per se rule that M warnings always purge the taint
                              of an illegal arrest. Rather, Ct looks at totality of the circumstances.
                           c. Hold: both confessions were the tainted fruit of the illegal arrest, and
                              were therefore illegal. In this case, a statement made two hours later was
                              NOT too attenuated.
                           d. Rule: The Miranda warnings are an important factor, to be sure, in
                              determining whether the confession is obtained by exploitation of the illegal
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                                arrest. But they are not the only factor to be considered. The temporal
                                proximity of the arrest and the confession, the presence of intervening
                                circumstances, and particularly, the purpose and flagrancy of the official
                                misconduct are all relevant. The voluntariness of the stmt is a threshold
                                requirement.
Illegal Act

    2. Dunaway v. New York:
          Reaffirming the view that Miranda warnings, by themselves, are insufficient to attenuate the
          taint of an unconstitutional arrest.
                       a. Stevens points out that the length factor is ambiguous. If there are no
                          relevant intervening circumstances, a prolonged detention may well be a
                          more serious exploitation of an illegal arrest than a short one. Conversely,
                          even an immediate confession may have been motivated by a prearrest event
                          such as a visit with a minister, and not police coercion.

    3. Taylor v. Alabama (1982):
          Extending Brown-Dunaway rule?
                     a. Court held that petitioner‘s confession was the impermissible fruit of his
                        illegal arrest even though: (a) six hours had elapsed between the illegal arrest
                        and the time petitioner confessed; (b) petitioner was advised of his rights
                        three times; and (c) he was allowed to visit briefly with his girlfriend and his
                        neighbor shortly before he confessed.
                     b. Shows that while intervening factors MAY break the causal link between the
                        unlawful arrest or search and the subsequent confession, the ―break‖ in the
                        link must be very substantial.

    4. Identification of a person as a “fruit” of an illegal arrest.
                       a. U.S. v. Crews (1980): Where a suspect is illegally arrested, tried in court, and
                           identified at trial by the victim, the defendant cannot claim that his
                           physical appearance is the fruit of an unlawful arrest, thus barring the
                           in-court identification.
                       b. Earlier station-house identifications might be suppressed however.

    5. Confessions as the “fruit” of a Payton Violation
                     a. Payton holds that 4th A prohibits the police from effecting a warrantless
                         entry into a suspect‘s home in order to make a routine felony arrest.
                     b. New York v. Harris (1990): Police had probable cause to arrest D but
                         arrested him in his home without an arrest warrant, which violated Payton.
                         D was taken into custody and waived his Miranda rights. The Court
                         suppressed statement made in his home, but refused to apply the ―fruit of
                         the poisonous tree‖ analysis to the stationhouse confession. 3/2/2004
                     c. Rule: A voluntary confession given by D in the station-house after the
                         warrantless in-house arrest are not barred by ER.
                     d. Rationale: The Court held that Brown, Dunaway, and Taylor (discussed above)
                         all involved confessions that stemmed from arrests which were made without
                         probable cause. D‘s arrest here, by contrast, was made with probable cause.
                         Therefore, D‘s statement at the station was not the product of being in
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                       ―unlawful custody.‖ Payton was designed to protect the integrity of the
                       home, not grant criminal suspects protection from statements made outside
                       their premises where the police have PC to arrest the suspect.
                    e. Be sure to cite attenuation as breaking the causal link. As in Elstad,
                       the Miranda warning breaks the causal link between the subsequent
                       confession and the previous illegal arrest or confession.
                    f. Another rationale: Police could have arrested D, even w/o a warrant, had
                       they done so outside of his house rather than inside it. If D had made a
                       station-house confession under this scenario, there would have been no
                       illegality to taint the confession. Cops didn‘t benefit by their unlawful entry
                       b/ anything incriminating the police gathered from arresting D in his home
                       has been excluded..
                    g. Weisselberg: Thinks that this case is a statement about the importance of
                       having a warrant/not violating Payton. A Payton violation might not be
                       severe enough to have continuing impact upon the suspect at the station
                       house.

6. Methodology for Determining if Evidence should be Suppressed

                                         Brown v. Illinois                   New York v. Harris
     Arrest inside Home                         No                                   Yes
         PC for Arrest                          No                           Yes, but no warrant
  Statement Made at Home                        No                            Yes, suppressed
      Statement Made at                   Yes, suppressed                    Yes, not suppressed
         Stationhouse

7. Warrant as fruit of illegal entry of the premises
              1. Segura v. U.S. (1984): Applies independence source doctrine: If issuance of
              search warrant did not depend on items seized during initial, illegal search, evidence
              should be admitted.
                  a. Facts: D was arrested outside his apartment and the cops then entered his
                      apartment w/o a warrant. Cops conducted a limited security check and
                      observed drug paraphernalia. Two cops remained in the apartment awaiting
                      a warrant, which was not issued until 19 hours after the initial entry.
                  b. Issue: whether items not observed during the illegal entry and first
                      discovered by the agents executing the valid search warrant, should have
                      been suppressed.
                  c. The Court allowed the evidence because the issuance of the search warrant
                      did not depend on items seized during the initial, illegal search. The Court
                      said that there was an independent source for the items seized. Prior to the
                      illegal entry the cops already knew enough to obtain a search warrant.

       3. Murray v. U.S. (1988): 3/2/2004 Extends Segura to cover situation where the police are
          illegally on premises, they discover particular evidence, they apply for a warrant, and
          they ―rediscover‖ the evidence. The ultimate question is whether the warrant was
          sought and issued on the basis of info wholly unconnected to the illegal entry.


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                      a. As long as the trial court is convinced that the illegal entry did not
                         contribute either to the officer‘s decision to get a warrant, or that info
                         obtained during that entry was presented to the Magistrate and affected his
                         decision to issue the warrant, the evidence will be admissible even though its
                         initial discovery was illegal.
                      b. Facts: Cops enter warehouse w/out warrant and see bales of marijuana.
                         They then submitted warrant to magistrate, not mentioning what they had
                         already seen.
                      c. Note: Were the officers motivated by what they say in their first entry?
                         Intent/motive?


B. H. THE INEVITABLE DISCOVERY DOCTRINE

  1. Nix v. Williams (Williams II) (1984):
            Evidence may be admitted if it would “inevitably” have been discovered by other
            police techniques had it not first been obtained through the illegal discovery. It
            is the prosecution which bears the burden of showing, by a preponderance of the
            evidence, that the information would inevitably have been discovered by lawful means.
                     a. Police unconstitutionally elicited location of dead body through Christian
                         burial speech.
                     b. Rationale: In order to deter illegal police conduct, prosecution should not
                         be placed in better position than it would have been in had there been no
                         illegality. Where evidence would inevitably have been discovered, admitting
                         the evidence does not place the prosecution in a better position than it
                         would have been in had there been no illegality. And keeping the evidence
                         out puts the prosecution in a worse position, for which there is no
                         justification.
                     c. No good faith requirement: So how do we deter violations of 6th Amend
                         when evidence will be admitted?
            5) Hypo: Murray Police engage in illegal search of ‘s home. Officer leaves, goes to
                 police station and gets a warrant to search the home based on 4 eyewitness accounts
                 saying that the gun is in the house.
                     a. Nothing in warrant application about the illegal search
                     b. Warrant issued
                     c. Cops go in w/ warrant and find the gun
                     d. Is it admissible?
                     e. Yes, because they had an independent source. But, they cannot use the gun.

C. IS CONFESSION OBTAINED IN VIOLATION OF MIRANDA A POISONOUS TREE?

  1. Oregon v. Elstad (1985):
            Cops have arrest warrant. Go to D‘s house, do not tell him about burglary, do not give
               him Miranda warnings. D makes incriminating statement in home. D arrested after
               gives statement. Later, D waives Miranda and makes incriminating statement at
               police station.
                   a. Issue is whether 2nd statement should be suppressed b/c of 1st statement.

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                    b. Ct said D was in custody, so M violation occurred in D‘s house.
                    c. Hold: Fruits doctrine does not apply b/c a Miranda violation is not a core
                       violation of the 5th Amendment.
                    d. Different result if 1st statement was coerced: If 1st statement was not
                       voluntary within the meaning of the 5th Amend, the 2nd statement would be
                       excluded
                    e. Test: DP voluntariness test applies. Was the 2nd confession ―knowingly and
                       voluntarily made.‖ If so, it will not be invalidated merely because there was
                       a prior, illegally-obtained confession having the same substance.
                    f. Dickerson is current law on constitutionality of Miranda. Is it inconsistent
                       w/ Elstad? There is a circuit split regarding fruit of Miranda violation.


XIV. III. THE IMPEACHMENT EXCEPTION (to the exclusionary
  rule)
    A. Allow statements for purpose of impeachment even if obtained through violation of 4th, 5th,
        or 6th Amendments. If D takes the stand, he will be cross-examined about his original
        statement.

    B. Walder v. U.S. (1954): Evidence seized in violation of the 4th Amendment may be used to
       impeach a defendant‘s credibility. Thus state was allowed to introduce illegally obtained
       heroin to impeach D‘s claim made during his direct examination that he had never
       possessed any narcotics.


    C. Harris v. New York (1971): A defendant‘s confession, obtained in violation of Miranda,
       can be introduced to impeach the defendant‘s direct trial testimony, even though it could
       not be used in the prosecution‘s case-in-chief.
       1. Although a statement obtained in violation of Miranda may be admissible for
       impeachment purposes under Harris, it may not be used to impeach if it was the product of
       coercion, or was involuntary for some other reason. (i.e., the cops beat it out of him).


    D. Oregon v. Hass (1975): Confession can be used to impeach even where D receives
       Miranda warnings, asks for a lawyer, and is questioned before the lawyer is
       provided.

    E. People v. Peevy (1998): CA Supreme Ct. held that Harris-Hass exception applies even
       when a police officer deliberately fails to honor a suspect’s request for counsel for
       the very purpose of obtaining evidence for impeachment purposes.
       1. Note that the ct. says it is misconduct for police to do this, but it still upholds the
           conduct.
       2.The court declined to reach the second question, whether it is OK for an officer to deny a
           suspect‘s request for counsel pursuant to a police department policy to violate Miranda
           in order to obtain evidence for impeachment purposes.


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    3. This is called questioning ―outside Miranda.‖ Cops only lose the stmt taken in violation
        of M. Do not lose physical evidence that resulted from the stmt. Do not lose the
        testimony of other witnesses cops learned about only by violating D‘s Miranda
        invocation.

F. U.S. v. Havens (1980): Statements made during Cross-Examination may also be
   impeached by illegally obtained evidence.

G. Michigan v. Harvey (1990): If D requests a lawyer during his arraignment, and police
   violate 6th Amend (Michigan v. Jackson) by initiating conversations with him without
   counsel being present, those statements can be used to impeach D‘s testimony at trial.
       1. Court calls the Jackson rule ―prophylactic‖ b/c based on 5th Amend analysis in
           Edwards v. Arizona.
       2. We do not know what USSC will rule if it addresses the use of statements obtained
           in violation of the Massiah right to counsel.

H. Limitation: James v. Illinois (1990): Illegally-obtained evidence may not be used to
   impeach the testimony of defense witnesses other than the D himself.
      1. Here the illegally-obtained evidence was D‘s prior statements that he had reddish
          hair at the time of the shooting. The witness testified that he had black hair.
      2. Court felt that expanding the exception would chill some Ds from presenting their
          best defense through the testimony of others.
      3. Court also felt that threat of perjury prosecution was likely to deter witnesses from
          lying.
      4. Lessens 4A deterrent effect protection but balances against truth seeking goal.
          Witnesses don‘t have the same motives as defendants.
      5. Exclusionary Rule is de-constitutionalized and we now have to balance everything.
          This applies to Miranda 5A and presumably to 6A. So, if this were a Miranda or
          Massiah violation, we should get the same result.

I. Silence as Impeachment.
          1. Doyle v. Ohio (1976): Post-arrest silence may not be used to impeach.
                 a. When Ds claimed at trial that they were framed, prosecutor asked why
                      they hadn‘t told this story to the arresting officer.
                 b. Ct. held that this didn‘t protect Ds‘ invocation of Miranda right to
                      remain silent. It would be a deprivation of due process to allow this type
                      of impeachment b/c M warnings ensure that silence will not be used
                      against you.
                 c. Exceptions: If D states at trial that he did tell his alibi to police upon
                      arrest, prosecutor may use his silence to impeach this testimony.

    4. Anderson v. Charles (1980): D takes stand and testifies. On cross-examination,
       prosecutor can ask why D‘s direct testimony contradicts the statements he made after
       receiving and waiving Miranda warnings.

    5. Jenkins v. Anderson (1980): Pre-arrest silence may be used to impeach.
       a. D raised self-defense claim and prosecutor impeached by pointing out that for two
           weeks after the murder, D failed to go to authorities.
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         b. Ct. distinguished from Doyle on the ground that no governmental action induced D
            to remain silent before arrest. Failure to speak occurred before D was taken into
            custody and given Miranda warnings.

    6. Fletcher v. Weir (1982): If state does not give Miranda warnings and D remains silent,
       state may cross-examine about post-arrest silence when D chooses to take the stand. 
       Fucked up!



                                   THE GRAND JURY

    A. The Investigative Grand Jury: Authority & Advantages.
       1) Dual Functions: The grand jury provides a ―shield‖ against mistaken and vindictive
          prosecutions in deciding whether or not to issue an indictment. The grand jury also
          acts s a ―sword,‖ combating crime, in the use of its investigative authority.
       2) Subpoena authority: The basic advantage of the grand jury stems from its ability to
          use the subpoena authority of the court that impaneled it.
              a. subpoena duces tecum to obtain tangible evidence. Unlike a search warrant,
                   subpoena can issue without probable cause.
              b. subpoena ad testificandum to obtain testimony. Both are supported by the
                   court‘s authority to hold in contempt any person who willfully refuses,
                   without legal justification, to comply with a subpoena‘s directive.
       3) Psychological pressure: Proponents of GJ investigations claim that the
          psychological pressure of GJ interrogation enables the GJ to obtain statements from
          witnesses unwilling to cooperate with the police.
       4) Immunity Grants: Court order granting a witness sufficient immunity from future
          prosecution to supplant the witness‘ self-incrimination privilege. Once the
          recalcitrant witness has been granted immunity, he may no longer rely upon the
          privilege.
       5) Secrecy: Varies among jurisdictions, butt almost always adds to the grand jury‘s
          effectiveness as an investigative agency.
       6) Witness: Can be- Target of investigation. Subject of investigation (person or
          corporation in whom prosecution has some interest. Maybe will be indicted
          depending on evidence). Witness.

    Fourth Amendment Challenges

    1) Boyd v. U.S. (1886): Significant only as an historical remnant; almost all of it has fallen
       to the way-side. Held that compulsory production of private documents violates the 4th
       and 5th Amendments as they run together. This analysis has since been repudiated.
    2) U.S. v. Dionisio (1973): Grand jury subpoenaed 20 people to give voice exemplars. D
       refused, citing the 4th and 5th Amendments and was held in contempt.
       a) Ct. held that a grand jury subpoena to give voice exemplar is not an “seizure”
           within the meaning of the 4th Amendment. It doesn‘t even have to withstand, then,
           the reasonableness test.



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       b) Ct. also held that there is no reasonable expectation of privacy in a person‘s voice
          b/c it‘s exposed to the public, just like his face. Not testimony was req‘d, Ds were
          given script to read.
       c) The ct. notes, however, that a GJ can‘t require a witness to testify against himself,
          and can‘t require the production by a person of private books and records that
          would incriminate him.
    3) U.S. v. Calandra (1974) Exclusionary Rule does not apply to grand jury
       proceedings.
       a) Because the GJ does not finally adjudicate guilt or innocence, it has traditionally
          been allowed to pursue its investigative and accusatorial functions unimpeded by the
          evidentiary and procedural restrictions applicable to a criminal trial.
       b) ER applies to trial itself

B. Other Objections to Investigation.
   1) U.S. v. R. Enterprises, Inc. (1991): When a subpoena is challenged on relevancy
      grounds, the motion to quash must be denied unless the district court
      determines that there is no reasonable possibility that the category of materials
      the Government seeks will produce information relevant to the general subject of
      the grand jury’s investigation. [Establishes very narrow grounds for suppressing
      grand jury subpoenas]
      a) Nixon req‘d relevancy, admissibility, and specificity. But Nixon was a trial case.
      b) Fed Rule of Criminal Pro17(c) requires subpoenas to be ―reasonable.‖
      c) However, a court may be justified in a case where unreasonableness is alleged in
          requiring the Government to reveal the general subject of the grand jury‘s
          investigation before requiring the challenging party to carry its burden of
          persuasion.
      d) The court may require the Government to reveal the subject of the investigation to
          the trial court in camera, so that the court may determine whether the motion to
          quash has a reasonable prospect for success before it discloses the subject matter to
          the challenging party.

C. The Fifth Amendment Privilege/Subpoenas.

    1) Counselman v. Hitchcock (1892): 5th Amendment right against self-incrimination
       applies in grand jury proceedings—if the witness believes that the testimony he is
       being asked to give might incriminate him in a subsequent criminal case, he may decline
       to testify of 5th Amendment grounds.
       a) No right not to appear: 5th Amendment does not allow the witness to refuse to
           appear at all—the witness must appear in response to the subpoena, and must then
           state for the record the 5th Amendment claim.
    2) U.S. v. Balsys (1998): D held for deportation had fear of prosecution in other countries;
       no fear of prosecution in the U.S. Court held that D could not utilize the 5th
       Amendment privilege to refuse to provide answers which could subject him to a ―real
       and substantial danger of prosecution in Lithuania and Israel.‖

    3) U.S. v. Mandujano (1976): Plurality of the court held that no Miranda warnings
       necessary. There is no inherent compulsion to speak in a grand jury hearing like there
       is in a police station.
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         a) D was advised of 5th Amend privilege. But not told that atty would be appointed to
            him for free.
         b) Court also discussed the procedure to be followed when a witness asserts the
            privilege. The grand jury has two choices: (1) If the desired testimony is of
            marginal value, the GJ can pursue other avenues of inquiry. (2) If the testimony is
            thought sufficiently important, the GJ can seek a judicial determination as to the
            bona fides of the witness‘ 5th Amendment claim.

                If in fact there is reasonable ground to apprehend danger to the witness from
                 his being compelled to answer, the prosecutor must then determine whether the
                 answer is of such overriding importance as to justify a grant of immunity to the
                 witness.
                If immunity is sought by the prosecutor and granted by the presiding
                 judge, the witness can then be compelled to answer, on pain of contempt, even
                 though the testimony would implicate the witness in criminal activity.

    4) Immunity: The use of an immunity grant by the grand jury precludes reliance on the
       5th Amendment self-incrimination privilege.
       a) Transactional Immunity: Protects the witness against any prosecution for the
           entire transaction (drug deal, robbery) about which he has testified. Two Limitations:
            Transactional immunity does not preclude a prosecution for perjury based on
               the immunized testimony.
            Transactional immunity does not extend to an event described in an answer
               totally unresponsive to the question asked. Thus, witness can‘t get immunity
               from prosecution for all previous criminal acts by simply referring to those acts
               in his testimony without regard to the subject on which he was asked to testify.
       b) Use Immunity: Much narrower than transactional immunity. Merely protects
           against the direct or indirect use of the testimony in a subsequent prosecution.
            Kastigar v. U.S. (1972): Established that use immunity is sufficient to nullify the
               witness‘ 5th Amendment privilege. But see below for Kastigar’s requirements that
               prosecution met prerequisite of showing that its evidence is independently
               derived.

         c) Use/Derivative Use: federal immunity. Cannot use oral testimony directly.
            Cannot use physical evidence derived from testimony either. This is the most
            common type of immunity granted.


    5) Subsequent Prosecutions and the Problem of Taint: The prosecution must prove
       that it did not use the testimony even to:
           1- obtain leads to information or witnesses,
           2- focus the subsequent investigation,
           3- interpret the independently-derived evidence
           4- plan cross-examination, or make any other kind of use of the grand jury
                testimony. Also, the subsequent criminal trial must be conducted by


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                 prosecutors who did not witness, or read the transcript of, D‘s grand jury
                 testimony.
                  The preferred practice is for the prosecutor to make a record of all evidence
                      collected prior to the grant of immunity, file that record with the court, and
                      then at the taint hearing, note its intent to utilize only that previously
                      acquired evidence and further evidence directly acquired from that evidence.

    6) The Subpoena Duces Tecum: Major issue is whether the material sought is
       ―testimonial‖ for 5th Amendment purposes.

         a) Doe II (1988): Rule: In order to be testimonial, an accused’s communication
            must itself, explicitly or implicitly, relate a factual assertion or disclose
            information. Only then is a person compelled to be a witness against himself.
                 Facts: In Doe, D was ordered to sign forms directing any bank where he had
                   an account to deliver records of his accounts to the GJ.
                 Ct. held that executing this form was not testimonial because by signing the
                   form, D made no statement, explicit or implicit, regarding the existence of a
                   foreign bank account or his control over any such account.
                 The ct. held that executing the directive was analogous to the production of
                   a handwriting sample or voice exemplar: non-testimonial acts. Having the
                   bank produce the docs is also not testimonial.

         b) Fisher v. U.S. (1976): Requiring attorney to produce client’s tax records
            prepared by accountant is not protected by the 5th Amendment because non-
            testimonial.
             Facts: IRS interviewed taxpayers; taxpayers got documents from their
                accountants; taxpayers gave these documents to their lawyers to help with the
                IRS investigations; IRS summoned the lawyers for these docs.
             Taxpayer can assert the privilege even thought the attorney has the records. .
             But, the 5th Amendment does not serve as a general protector of privacy. The
                5th Amendment protects against the act of compelled self-incrimination.
                Protects the act of production, not the contents themselves.


         c) Doe I (1984): Subpoena directed a sole proprietor to produce a broad range of
            records. D asserted privilege. Rule: The biz records here, like the accountant‘s
            workpapers in Fisher, had been prepared voluntarily, and therefore only their
            production, and not their creation, was compelled. The 5th Amend does not
            protect contents of private papers.

         d) Hubbell (2000): D made plea bargain for tax fraud. Prosecutor believed that he did
            not produce all the records, so subpoenaed ―all records‖ connected to scandal. D
            produced docs, and whole new case against him developed.

                    The really broad request made it hard for the taxpayer to identify which
                     docs to produce. It req‘d D‘s to think testimonial aspect

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                    Cannot be prosecuted later for docs he produced b/c he was granted
                     immunity.

         e) Braswell v. U.S. (1988): Custodian of corporate records may not resist a
            subpoena for business records on the ground that the act of production
            would incriminate him in violation of the 5th Amendment.
            1) D, president of 2 corporations, argued that producing the documents had
               testimonial significance, which would incriminate him individually.
            2) Had D conducted his business as a sole proprietorship, he would be entitled to
               show that his act of production would entail testimonial self-incrimination.
               However, since D operated his business through the corporate form, he was
               subject to the collective entity rule.

                    The test is ―whether under all the circumstances a particular type of organization has a
                     character so impersonal in the scope of its membership and activities that it cannot be said
                     to embody or represent the purely private or personal interests of its constituents, but rather
                     to embody their common or group interests only.” If so, the privilege cannot be
                     invoked on behalf of the organization or its representatives in their official
                     capacity.
                    The theory behind this rule is that a corporate custodian holds documents in
                     a representative rather than personal capacity. The custodian‘s production
                     of the documents is not a personal act, but an act of the corporation.
                     Corporations do not have any 5th Amendment privileges because they are
                     fictitious individuals.

    7) Role of Grand Jury Review
       a. 5th Amend ensures that a federal charge for a felony offense will not be brought
          without granting the accused the protection of the review and acceptance of the
          charge by the GJ.
       b. Keep in mind the USSC‘s interpretation of the scope of the 5th Amend. The grand
          jury has a limited role. GR screens cases to see if there is probable cause.
       c. States may have other procedure even when not constitutionally required. Some
          states have established other protections.
       d. Hurtado (1884): There can be prosecution by means of information instead of
          indictment. The 14th Amend does not require all states to use the grand jury.

    8) Challenges to Evidence before the GJ
       Costello (1956): Permissible for prosecution to get indictment from testimony of three
       agents. Hearsay evidence is OK.

    9) Misconduct
       a. Williams (1992): Is there a duty to put exculpatory evidence before the GJ? No.
          Just needs evidence to show probable cause. The jury determines probable cause
          only, not guilt.
       b. In CA, jury req‘d to hear all evidence, including exculpatory. Motion to dismiss
          indictment when no probable cause.


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         c. Bank of Nova Scotia (1988): Federal Harmless Error Standard. Rule: Did the
            error substantially influence the jury‘s decision to indict?
         d. Mechanik (1986): Postconviction Review. Rule 6 was violated when two
            government witnesses testified in tandem. D made motion to dismiss. Jury gave
            guilty verdict after trial.
                 Trial courts have incentive to defer ruling on motion to dismiss until after
                    the verdict.

         Motion to Dismiss               Appeal? YES                     Appeal? NO
         Indictment
         Prior to Trial- granted         Govt can appeal
                           denied                                        No interlocatory appeal
         After Trial- guilty verdict     Court can‘t grant motion        No, b/c jury found guilt
                                         (Mechanik)                      beyond r. doubt


                              ASSISTANCE OF COUNSEL

A. Waiver of right to Counsel
   1. Johnson v. Zerbst (1938) – strong presumption against waiver of right to counsel.
      Waiver is valid when ―intelligent relinquishment or abandonment of a known right
      or privilege.‖
   2. trial judge must investigate long and thoroughly the circumstances of the case to
      determine if there was waiver. Von Moltke v. Billies

    3. Can‘t presume waiver from a silent record. Carnley v. Cochran

    4. Faretta v. California (1975) *
       a. FACTS: D requested he be allowed to represent self. Had HS diploma, had
          represented himself before, and thought PD had too heavy a caseload.
       b. HELD: there is a 6th A right of self-representation
           Defines counsel as an assistant- shouldn‘t be imposed on an unwilling D.
           Right to defend is given directly to the accused; for it is he who suffers the
               consequences if the defense fails.
           Court focuses on autonomy
       c. Trial judge may terminate self-representation if D deliberately engages in serious and
          obstructionist misconduct.
       d. A State may, even over objection by the D, appoint a ―standby counsel‖ to aid the
          D
       e. This case is really the exception

    5. Martinez (2000): Right to self representation does not extend to appeals

    6. Godinez v. Moran (1993)
       a. FACTS: D found competent to stand trial, fired lawyers, plead guilty and got
          himself the death penalty.


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         b. HELD: Standard for competency to stand trial is the same as the competency
            standard for pleading guilty or for waiving right to counsel.
         c. Standard= whether the D has sufficient ability to consult with his lawyer with a
            reasonable degree of rational understanding and has a rational as well as functional
            understanding of the proceedings against him

    7. McKaskle v. Wiggins (1984)
       a. FACTS: claimed 6th violation when trial judge appointed stand-by counsel over D‘s
          objections.
       b. HELD: No violation. No categorical bar on participation by standby
          counsel, BUT there are two limits:
          (1) pro se D entitled to preserve actual control over the case he chooses to present
              to the jury
          (2) participation by stand-by w/o consent should not be allowed to destroy the
              jury‘s perception that the D is representing himself.

                 Relieves judge from having to explain everything.
         c. DISSENT: standby counsel here interfered. Maj places too much attention on jury
            perception and not enough on the perception of the D. The Maj test is insufficient
            for protecting fundamental interests- effective denial of right to self-rep.

         d. Savage v. Estelle - D was a severe stutterer, standby counsel ended up doing most
            everything. 9th Cir ended up using provision that said that if a person was
            disruptive, they couldn‘t represent themselves to say standby counsels participation
            was okay- said this situation was close enough.
         e. Judges in general are very troubled with seeing people in court unable to effectively
            represent themselves.

B. RIGHT TO COUNSEL OF ONE‘S CHOICE

    1. Caplin & Drysdale v. U.S. (1989) *
       a. FACTS: D wanted to pay for attorney, but $ was drug $ and subject to forfeiture.
       b. ISSUE: Whether federal drug forfeiture statute includes an exemption for assets that
          a D wishes to use to pay an attorney who conducted his defense in the case where
          the forfeiture was sought.
       c. HELD: No exemption. Since nothing in §853 prevents a D from hiring the
          attorney of his choice, or disqualifies any atty from serving as a D’s counsel,
          statute consistent with the 5th and 6th A.
           Gov‘t interest in obtaining full recovery of all forfeitable assets overrides any 6th
              A interest in permitting criminals to use assets adjudged forfeitable to pay for
              their defense.
       d. DISSENT: disables D‘s defense. The right to a private attorney fosters trust &
          there is no quality guarantee in gov‘t appointed help. Right to counsel of choice.
          Forfeiture substantially undermines every interest served by the 6th A right to chosen
          counsel.



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C. EFFECTIVE ASSISTANCE OF COUNSEL

    1. Overall: The right to effective assistance is a derivative of the 6th A right to
       assistance,  it only applies where 6th A right to counsel applies.
       a. Applies in: state ct trials, federal ct trials, 1st appeal
       b. Doesn‘t apply in: Habeas corpus, discretionary hearings, writ of certiorari. No right
           to effective counsel in these proceedings even if you hired the lawyer yourself.

    2. Strickland v. Washington (1984) *
       a. FACTS: D plead guilty and waived right to jury against counsel‘s advice- for 3 brutal
           capital murders, torture, kidnapping and attempted murder. Counsel felt hopeless-
           only used wife and mom as character witnesses, didn‘t request psych exam, and
           didn‘t request a pre-sentence report because the results would be harmful.
       b. HELD: Right to counsel = the right to effective assistance. No violation of right
           found here.
       c. Test: to prove ineffective counsel must show

             (1) Performance prong: counsel’s performance was deficient
                  below professional standards. Must identify acts or omissions.
                  Strategic choices are virtually unchallengeable
             (2) Prejudice prong: errors were serious and deprived D of a fair trial
                  Must show that there is a reasonable probability that, but for counsel‘s
                    unprofessional errors, the result of the proceeding would have been
                    different.
                  Reasonable probability = probability stuff to undermine confidence in the
                    outcome. (not more-likely-than-not)

         d. STANDARD: Whether counsel‘s conduct so undermined the proper functioning of
            the adversarial process that the trial cannot be relied on as having produced a just
            result.
             Overall focus on the fundamental fairness of the proceeding.

         e. DISSENT: disagrees with reasonableness standard and ‗undermine confidence of
            the outcome‘ standard  too malleable, doesn‘t give guidance.
             If incompetence is shown, why need one go further and show prejudice. All
                should have a right to competent counsel.
             He would not accept a reliable verdict if atty was not competent/effective.
         f. Application? These claims are often litigated in post-conviction petitions, rather
            than in trial ct or on appeal. Certain deficiencies of performance won‘t show up on
            the trial record.

    3. U.S. v. Cronic (1984)
       a. FACTS: D‘s counsel pulled out and judge appointed young real estate lawyer with
          no experience and no time to prepare.
       b. Rule: Need an individualized showing of each prong- court can‘t infer from the
          circumstances that atty was ineffective. Must show specific errors.

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    4. Bell: Don‘t infer ineffectiveness. Here atty did not give closing argument. But this may
       have been strategic choice. It prevented prosecutor from giving strong rebuttal in his
       closing argument.

    5. Nix v. Whitside (1986)
       a. FACTS: D wanted to testify falsely, counsel told him that he would have to tell the
          court, etc. D didn‘t perjure himself and got 2nd degree murder. Claimed ineffective
          assistance b/c counsel did not let him testify as he proposed.
       b. HELD: Representation here was well w/in the accepted standards- no breach of
          duty  no deprivation of the right to counsel. Also no prejudice to D.
           Duty of loyalty and advocacy, but also must disclose perjury.
       c. CONCUR (3 separate ones) : Ct can‘t make ethical rules for lawyers practicing in
          state courts. D here failed to show prejudice, i.e. anything that deprived D of a fair
          trial w/ reliable results. No showing of prejudice  needn’t look at
          performance.

D. CONFLICTS

    1. When do we presume prejudice? When there is a conflict of interest. BUT, Cuyler says
       that prejudice is part of conflict of interest claim, so you do have to make some showing
       of prejudice.
       Under what circumstances will counsel‘s actions be so improper that they amount to a
       denial of counsel? When attorney is asleep or drunk.

    2. Cuyler v. Sullivan (1980)
       a. FACTS: 3 D‘s shared the same counsel. 2 Ds acquitted, 1 D convicted.
       b. ISSUE: May a state prisoner obtain a fed writ of habeas by showing that his retained
          counsel represented potentially conflicting interests?
           Does trial ct have to inquire about propriety of multiple representations?
           Is the mere possibility of a conflict of interest enough to show deprivation of
              right to counsel?
       c. HELD: Court need not initiate inquiry into propriety of multiple representation.
          Multiple representation doesn‘t violate the 6th A unless there is a conflict.
       d. RULE: D must establish that an actual conflict of interest adversely affected his
          lawyer‘s performance.
           Show that some conflict existed and that it explained a particular action or
              inaction of counsel adversely affected D‘s representation.

    3. Burger v. Kemp (1987)
       a. FACTS: co-D‘s represented by law partners. Each D‘s confession emphasized the
          culpability of the other. Separate proceedings.
       b. HELD: No real showing of conflict. Court will not infer that possible conflict
          affected representation.
       c. Multiple representation is not per se unconst, must show that counsel actively
          represented conflicting interests and that this conflict adversely affected the lawyers performance. On
          occasion, multiple rep can benefit D.


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              It is unresolved how much of a link must be shown between a decision made
               and the conflict, before prejudice will be presumed.
         d. Fed R. Crim 44: must inquire into conflict when multiple representations.

    4. Mickens
       a. Former representation: Same lawyer represented victim and D.
       b. Did trial judge have duty to inquire into this conflict? No.
       c. No showing that conflict affected representation per Cuyler.
       d. Dissent: Conflict can affect relationship between atty and client. Lawyer should
          have disclosed conflict to court.

    5. Wheat v. U.S. (1988)
       a. FACTS: D wanted to have same attorney as 2 other D‘s all being charged in a drug
          conspiracy. Court said this would be a conflict of interest, and imposed separate
          counsel over D‘s objection.
       b. HELD: No violation of 6th A rights. D.Ct should have substantial latitude in
          refusing waivers of conflict- can refuse to substitute counsel where conflicts may
          result.

         c. RULE: 6th Amend Right to choose one‘s own counsel is limited

         d. DISSENT: Trial Ct shouldn‘t get special deference on appeal. Need showing that
            the likelihood and the dimensions of the feared conflict are substantial- here the
            conflict was highly speculative.

E. ROLE OF APPOINTED COUNSEL

    1. Counsel will be appointed to first appeal as of right. Attorneys cannot make frivolous
       arguments. What if there are no arguments for attorney to make on appeal? The Court
       appointed counsel so it has the responsibility to ensure representation.

    2. Anders v. California (1967)
       a. HELD: a ―no-merit‖ letter by appointed counsel is insufficient, fails to afford client
          aid. Counsel must write a brief on anything supporting an appeal and then the Ct
          must determine if there will be an appeal and appoint new counsel if necessary.
           Attorney must withdraw from case so client can appeal pro se

    3. Smith v. Robbins (2000)
       a. Anders is not the only way to deal with this issue. USSC approves of California‘s
          Wende procedure
       b. Attorney files a brief which summarizes procedural and factual history, attests that
          he has reviewed the record, requests that the court independently examine the
          record for arguable issues.




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                                          Double Jeopardy
                                   ―Do the trial once, and do it right.‖

In General:
What policies and interests are protected by double jeopardy?
-judicial economy. Right to be heard by a certain judge or jury. Avoid harassment from repeated
         prosecution. Avoid wearing down the D. Preserve witness‘ memory. Finality of judgment.

A.     Reprosecution after a Mistrial

       1. Somerville: Manifest necessity
       a. Mistrial b/c invalid indictment. Then D re-indicted. D asserted it violated 5th Amend.
       b. Rule: Trial court can declare a mistrial over D‘s objection when it finds ―manifest necessity.‖
       c. But if there was an acquittal, D could not be tried again

       2. Kennedy
       Double jeopardy does not bar mistrial unless prosecutor intended for D to move for mistrial.
       3. Crist
       a. 5th Amend attaches when jury impaneled, or witness sworn in.
                -does not attach at indictment. If it did, prosecution would have to be prepared early.
       b. USSC says 5th Amend attached, but does not bar re-trial

B.     Reprosecution after an Acquittal

       1. Scott
       a. Facts: Trial was derailed before jury verdict.
       R29: D may move for ―judgment of acquittal‖ at close of prosecutor‘s case. Rule is based on
       sufficiency of the evidence.
       b. Court can reserve its decision to rule until after it hears all the evidence. Court can also rule
       after the jury gives verdict
       c. Prosecutor cannot appeal the grant if the court rules before the jury verdict b/c of double
       jeopardy. If prosecutor was allowed to appeal, there would have to be a whole new trial.
       d. USSC- Protect finality of case when rule based on sufficiency of the evidence. Here the
       ruling was based on a constitutional violation, so no double jeopardy bar. Rule was not based
       on D‘s guilt or innocence.
       e. Dissent- Judgment of acquittal (R29) could be granted incorrectly, but it would be protected
       if we don‘t allow the prosecution to appeal.

C.     Reprosecution after a Conviction

       1. Lockhart
       a. D sentences as habitual criminal. But D had been pardoned for one of his priors.
       b. USSC: Govt should have opportunity to re-sentence D and bring in evidence of other priors.

       2. Green
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       a. D charged w/ first degree murder. Jury instructed on 1st, 2nd and manslaughter. Jury says
       guilty of 2nd degree.
       b. This verdict implies acquittal of 1st degree, so can‘t be re-tried on this offense.

D.     Separate Sovereigns

       1. Heath
       a. D lived in Alabama. Murder took place in Georgia. D plead guilty in GA, and did not get
       death penalty. AL imposed death penalty.
       b. Both cases arose from the same set of facts. Why wouldn‘t double jeopardy bar AL‘s case?
       c. Rule: No double jeopardy. Each sovereign has ability to prosecute once.


XV. Tuesday, March 02, 2004 Review Session
Exclusionary Rule assumes government action was not lawful. Just need to determine if evidence is
excluded.
Involuntary is the key. Voluntariness is key to deciding admissibility of a confession.




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