Criminal Procedure Outline

In God I Trust.

v The Idea of Due Process

o Constitutional Decision Making

§ Duncan v. Louisiana

· Facts: ∆ convicted for simple battery without a jury trial. Simple battery carried a prison sentence not more than 2 years.

· Holding: The right to jury applies to states through the 14^th Amendment because this right is fundamental to the American scheme of justice. The jury system works to protect ∆s from overzealous prosecutors and biased or eccentric judges and also serves an accuracy function. The court doesn’t adopt total incorporation because that leads to problems with federalism. But court admits that there is a category of petty offenses which is not subject to 6^th Amendment protection

v Right to Counsel at Trial and on Appeal (Court trying to bring ∆s on equal footing with the state)

o 6^th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.

o Right to Trial Counsel

§ Powell v. Alabama

· Supreme Court held that indigent ∆s have a constitutional right to an appointed lawyer in capital crimes cases and where a ∆ is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy or the like. The court based its decision not on the 6^th Amendment but on the fact that in such cases, the absence of counsel was so prejudicial to the ∆s as to have rendered the trial fundamentally unfair.

§ Betts v. Brady

· Court refused to apply the 6^th Amendment right to appointed counsel to state trials. According to the court, the 6^th Amendment does not embody an inexorable command that no trail for any offense, or in any court, can be fairly conducted and justice accorded a ∆ who is not represented by counsel.

§ Gideon v. Wainwright

· Facts: ∆ sentenced to 5 years prison for robbery of a poolroom. ∆ requested counsel but court denied despite the fact that ∆ was indigent.

· Holding: Court ruled that in our adversary 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. Therefore, 6^th amendment which is incorporated through 14^th Amendment entitles indigent ∆s to right to counsel at least in felony cases.

§ Argersinger v. Hamlin

· Court held that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified a petty, misdemeanor, or felony, unless he was represented by counsel at his trial. The legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.

§ So after Argersinger, Judge has to decide whether ∆ will be going to prison or not.

§ Scott v. Illinois

· Facts: ∆ convicted of theft and fined $50. ∆ argued that since his crime could have led to 1 year of jail, he had to right to a counsel under Argersinger.

· Holding: Argersinger applies to cases where there is actual imprisonment involved. The court held that 6^th and 14^th Amendments to the Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of counsel. Adopting ∆’s view will place too much burden on the 50 states.

§ Nicholas v. US

· Facts: ∆ convicted for DUI in 1983 and fine, but no counsel. In 1990, ∆ convicted on federal drug charges and in sentencing phase, judge considered the DUI conviction and increased sentence by 2 years.

· Holding: Uncounseled convictions can be used to enhance sentences for subsequent crimes.

o Counsel on Appeal

§ Griffin v. Illinois

· Transcript was required for appeal and the SC held that in such situations, the state must provide free transcript for trial proceedings. According to the Court, even though the state is not required to have an appellate system or a right to appellate review at all, but once the state creates such system, it must provide equal justice to all.

§ Douglas v. California

· SC held that state must appoint a counsel in the first appeal of right. According to the Court, “where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Court used two possible justifications: equal protection and due process.

§ Ross v. Moffitt

· SC held that an indigent does not have a right to appointed counsel on his applications for discretionary review by the state supreme court or on his petition for certiorari to the USSC. According to the Court, discretionary appeals are accepted or rejected usually on the basis not of the likelihood that the original determination of guilt was wrong, but on the importance of legal issues involved. Also, ∆ already has the briefs written by his counsel form the first appeal. Equal protection does not require absolute equality.

§ Evitts v. Lucey

· Where ∆ has right to counsel on appeal, the assistance must be effective. In this case, ∆’s appointed counsel’s failure to file a required statement of appeal leading to dismissal of the appeal so clearly deprived him of effective assistance that he was entitled to a new trial.

o Effective assistance of counsel

§ Strickland v. Washington

· A ∆ whose lawyer has actually participated in trial must establish 2 prongs in order to sustain 6^th Amendment claim:

o That counsel’s performance was deficient in the sense that counsel was not a reasonably competent attorney; and

§ This prong is really hard to prove because ∆ must identify with precision the acts or omissions that he claims were unconstitutionally unreasonable. Also, ct. must see through the eyes of the lawyer at the time action taken.

o That the deficiencies in counsel’s performance were prejudicial to the defense, in the sense that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

· Strong presumption is given that the lawyer’s conduct was appropriate. No set guidelines to show that lawyer was incompetent.

§ Hill v. LockhartàIn guilty plea cases, in order to satisfy the prejudice requirement, ∆ must show that there is a reasonably probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

o Self-Representation

§ Faretta v. California

· SC held that 6^th Amendment guarantees the right of a defendant to represent himself without counsel. The 6^th Amendment rights are personal to the accused and not to his counsel. Therefore, a ∆ can knowingly and intelligently waive his right to appointed counsel.

§ McKaskle v. Wiggins

· A defendant’s 6^th Amendment rights are not violated when a trial judge appoints a standby counsel- even over the defendant’s objection- to relieve the judge of the need to explain and enforce basic rules of courtroom. But defendant has to maintain the actual control over the presentation of his own defense at all times. The right to self-representation is not violated unless standby counsel substantially interferes with significant tactical decisions of the defendant, controls the questioning of witnesses, speaks in ∆’s place against her wishes on matters of importance , or in some other way destroys the jury’s perception that the ∆ is representing herself.

§ Anders v. California- an attorney who wishes to withdraw from a case after conviction on the grounds that an appeal would be wholly frivolous may request permission to do so but must file a brief referring to anything in the record that might support an appeal.

§ Jones v. Barnes- Counsel doesn’t have to raise every single issue on appeal that the client wants to raise.

§ Martinez v. Court of Appeal of California- ∆ does not have a constitutional right to dispense with the assistance of counsel on appeal.

o Critical Stages of the Proceedings

§ SC has held that the right to counsel applies at every critical stage of a criminal prosecution. Leads to 2 questions: what is criminal prosecution, and what is critical stage.

§ Criminal Prosecution begins for purposes of right to counsel when adversary judicial proceedings have been initiated and it continues throughout the sentencing process.

§ Eyewitness identification procedures

· A person has a 6^th Amendment constitutional right to counsel at any corporeal identification procedure conducted after, but not before, she has been indicted or equivalent adversary judicial criminal proceedings have commenced against her.

· If no counsel provided at post-indictment lineup, can’t produce evidence or testify. Also, prosecutor is prohibited from obtaining an in-court identification of the accused by the witness, unless the prosecutor proves by clear and convincing evidence that the in-court identification is not a fruit of the tainted out-of-court procedure.

· US v. Wade

o Ct. said that a person is entitled to counsel at all critical stages of a criminal proceeding. Defined critical stage as any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. A post-indictment identification is critical stage because the process is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.

o The court expressed the concern for the unreliability of eyewitness identification and the fact that it is seldom possible for defense attorneys if absent, to reconstruct the procedure in order to show the unfairness of the process.

· Kirby v. Illinois

o Ct. refused to extend the 6^th Amendment right to one-on-one pre-indictment confrontation.

§ Non-corporeal Identifications

· United States v. Ash

o Ct. held that a person against whom adversary judicial proceedings have been initiated is not entitled to the presence of counsel when the police display photographs. Defense attorney can reconstruct

§ Due process requires exclusion at trial identification was 1. unnecessarily suggestive and 2. conductive to mistaken identification. This right applies to corporeal, non-corporeal, pre & post indictment.

v Rise & Fall of Boyd

o This area covers the historical development relating the 4^th and 5^th Amendments.

o 4^th Amendment- The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

o 5^th Amendment- no person shall be compelled in any criminal case to be a witness against himself

o Boyd v. United States

§ An order of the District Court required the claimants to produce the invoice of the some disputed item in a suite for forfeiture.

§ Holding: A compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the 4^th Amendment in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.

o Gouled v. United States

§ Court ruled that search warrants may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized.

o Mere Evidence Rule: police can only seize: 1. a fruit of a crime, 2. an instrumentality of a crime, 3. contraband. This rule was based on property rights and said that in these three instances, government’s interest outweighed the property interest of the ∆.

o Warden v. Hayden- SC abolished the mere evidence rule. Nothing in the nature of property seized as mere evidence is more private than other types of property. Same item that constitutes evidence in one case might be a fruit or instrumentality in another.

II. The 4^th Amendment

The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

v 4^th Amendment Checklist

o Does D have standing to raise a 4^th Amendment challenge to the specific item of evidence in question?

o Did the police activity in question implicate a person, house, paper or effect?

o Did the police activity constitute a search and/or seizure?

o Was the search and/or seizure reasonable or unreasonable?

§ Did the police have adequate grounds to conduct the search and/or seizure?

§ Did the police act on the basis of a search warrant and/or arrest warrant?

o If yes to previous question, then ask:

§ Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?

· If yes, then consider “good-faith” exception.

§ Is there evidence that is a fruit of the poisonous tree?

· If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine.

v The Exclusionary Rule

o Weeks v. United States- Court held that in federal trials, the 4^th Amendment bars the use of evidence unconstitutionally seized.

o Wolf v. Colorado- Court held that 4^th Amendment protections are basic to a free society and therefore applicable to the states. But according to the Court, the states don’t have to adopt the exclusionary rule because that is a judicial invention.

o Mapp v. Ohio

§ Facts: officer forcibly entered ∆’s house in order to search for a bombing suspect. Didn’t have warrant. Didn’t find suspect but found obscene material which was used as evidence in ∆’s conviction.

§ Holding: The 4^th Amendment exclusionary rule applies to state criminal trials. Exclusionary rule is a constitutional requirement and to hold otherwise, would be to grant the right to be free from unreasonable searches and seizures but without its privilege and enjoyment.

o Justifications for the exclusionary rule:

§ Deter police officers from engaging in unconstitutional conduct

§ Second justification is the imperative of judicial integrity (now this justification has all but disappeared)

v The Meaning of Searches and Seizures

o Search

§ 4^th Amendment prohibits against unreasonable searches.

§ Search has 2 historical phases- pre-1967 and post-1967

§ Pre-1967

· The justices generally treated 4^th Amendment issues as a property-focused inquiry

· Boyd v. U.S.- “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the 4^th Amendment offence; but it is the invasion o fhis indefeasible right of personal security, personal liberty, and private property…”

· So in order to violate 4^th Amendment, physical intrusion necessary!

§ Post-1967

· Katz v. United States- According to the Court, the 4^th Amendment protects people not places. Justice Harlan’s Concurring opinion: 1. the individual must have exhibited an actual expectation of privacy, and 2. the expectation he exhibited must be one that society is prepared to recognize as reasonable.

· After Katz, the Court has focused on the Objective part of the test. Court has usually considered 3 factors when applying the objective test: 1. the nature of the property, 2. the extent to which a person has taken measures to keep information, her property or an activity private, 3. degree of intrusion experienced by the police activity

· False Friends Technique

o United States v. White- a person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Justices tolerance of this investigative technique is likel founded on their pragmatic recognition of the fact that the use of false friends is essential to the detection of otherwise inaccessible information about crime. Under White, no difference between pure false friend and wired false friend.

· Open Fields Exception

o Oliver v. United States- Police officer ignored no trespassing signs and crossed fences and observed marijuana which was not otherwise visible. Court said no search took place because one cannot have legitimate expectation of privacy in open fields. Open fields do not provide the setting for those intimate activities that the 4^th Amendment is intended to shelter from government interference or surveillance. Furthermore, police can observe fields from a helicopter of plane.

o Open field- land need to be neither open nor a field in all circumstances.

· Curtilage

o Curtilage is the land immediately surrounding and associated wit the home. Curtilage is protected under the Amendment.

o United States v. Dunn- 4 factors determine whether land curtilage:

§ The proximity of the land to the home

§ Whether the area is included within enclosures surrounding the house

§ The nature of the use to which the area is put

§ The steps taken by the resident to protect the land in question from observation.

· 4^th Amendment and new technology

o Court has held that pen registers installed to record phone #s a person dialed not search because not recording the content of the conversation but recording very limited information (Smith v. Maryland).

o United States v. Knotts- police installed beeper in a drum which ∆ bought. Police obtained the location of the drum and gained warrant. Court held that it was not search: 1. the beeper did not provide the police with any information that they could not have secured by visual surveillance from public places along ∆’s route. 2. The beeper had limited use in this case: it did not reveal information as to ∆’s movements within any private place.

o United States v. Karo- the beeper allowed the police to monitor the movement of a container inside various homes as well as public places. Court held that 4^th Amendment protected against use of the beeper located inside the house. “Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of 4^th Amendment oversight.”

o Kyllo v. United States- Use of thermal-image device aimed at a private home form a public street to detect relative mounts of heat within the home constitutes a search within the 4^th Amendment. In the home, all details are intimate details, because the entire area is held safe from prying government eyes. So in home, all details are intimate and where the government uses a device that is not in general use to explore details of the home that wouldn’t be visible without the intrusion, a search has occurred.

· Aerial Surveillance

o Aerial non-sense-enhances surveillance valid if: 1. occurs from public navigable airspace, 2. is conducted in a physically nonintrusive manner, 3. does not reveal intimate activities traditionally connected with the use of a home or curtilage.

o California v. Ciraolo- Officer observed marijuana in ∆ backyard from 1000 feet in airplane. Court ruled the surveillance was not search even though curtilage.

o Florida v. Riley- Court said surveillance in helicopter at the height of 400 feet not search because even though planes at this height would violate FAA rules, but not helicopters and ∆ can expect that anyone in helicopter can observe marijuana on this curtilage. According to the court, it would have been a different case if flying at that altitude had been contrary to law or regulation.

· Dog Sniffs

o Supreme Court in United States v. Place held that exposure of ∆’s luggage, which was located in a public place, to a trained canine did not constitute a search. The information was secured in a comparatively nonintrusive manner, luggage was never opened. Also, information revealed by the test was extremely limited.

o In Bond v. US, the Ct. held that physical touching of luggage in a bus was search because of officer’s purpose. Dissent: effect and not purpose matters.

· California v. Greenwood

o Court held that ∆ didn’t have a reasonable expectation of privacy in the plaque garbage bag which was placed outside his curtilage.

o Seizure

§ Unless police conduct constitutes a seizure, the 4^th Amendment does not apply. If it is a seizure, then issue is whether seizure was reasonable. If seized property, then need a warrant based on probable cause, or a justification for not securing a warrant. If person, mostly must have arrest warrant. If arrest, must be supported by probable cause. If less intrusive seizures, reasonable suspicion is allowed in some circumstances.

§ Seizure of person

· Terry v. Ohio

o A person is seized by an officer, by means of physical force or show of authority, has in some way restrained his liberty.

o Seizure in following situations

§ When person ordered to stop so that he can be frisked or questioned

§ When person is intentionally shot by officer

§ Taken into custody and brought to police station for questioning or fingerprinting

§ Ordered to pull his automobile off the highway for questioning or to receive a traffic citation

§ Intentionally forced to stop his car by means of a roadblock (Brower v. County of Inyo)

· Florida v. Bostick- Inquiry is whether a reasonable person would feel fee to decline the officer’s requests or otherwise terminate the encounter. Subjective intent of officer-suspect not too important. Court said that Mendenhall rule that whether a reasonable person would feel free to leave is not applicable in this case because ∆ didn’t feel free to leave for reasons independent of the police conduct. ∆ had his luggage in bus and that was the reason he wouldn’t feel free to leave. So the correct inquiry was whether a reasonable person would feel free to terminate the encounter.

· In a recent 2002 case US v. Drayton, ct. held that the consent was voluntary and no seizure even though the officers, unlike Bostick, didn’t inform ∆ that he could refuse to talk to them.

· United States v. Mendenhall- Some factors to consider in applying the reasonable person test: 1. the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the sue of language or tone of voice indicating that compliance with the officer’s request might be compelled.

· Florida v. Royer- officers approached a passenger and asked for his drivers license and ticket. When spotted the discrepancy, they asked ∆ to accompany them to one room. Court held that the initial questioning was not seizure but the second part was seizure. The officers had ∆’s license and tickets and a reasonable person in such situation would not have felt free to leave.

§ Factory Sweeps- Court has applied questionable reasoning in holding that factory sweeps by INS officials is not seizure.

§ **In the reasonable person test, the Court assumes that a reasonable person is an innocent person who has nothing to hide.

§ Police Pursuits

· California v. Hodari D- According to the Court, a seizure requires either physical force, or, whether that is absent, submission to the assertion of authority. E.g. O chases D and yells stop, but D keeps runningà No seizure, even though a reasonable person would feel that he is not free to leave. But no seizure until D actually submits to O’s authority. O places his hand on D, D breaks away and runsàSeizure

· Dissent worries that officers can just chase people without reason in the hopes of gaining some evidence to start the seizure.

v Probable Cause and Warrants

o Probable Cause Standard

§ For there to be probable cause to arrest a person, it must be more likely than not that a violation of the law has been committed and the person to be arrested committed the violation.

§ For there be probable cause to search particular premises, it must be more likely than not that the specific items to be searched for are connected with criminal activities and these items will be found in the place to be searched.

§ Probable cause is an objective test! Subjective feelings or motivation of the officer is irrelevant.

§ Whren v. United States- an officer had probable cause to stop ∆ to issue traffic citation for turning without signaling and for speeding. The fact that the violation was rather trivial, it is very possible that officer stopped ∆ based on ∆’s race. Court stated that a search or seizure supported by probable cause is constituonally reasonable without regard to the officer’s motives for the action.

§ Informant Information

· Aguilar-Spinelli Two-Pronged Test

o The basis-of-knowledge prong- how did the informant get the information

§ Sometimes when basis-of-knowledge unknown, this prong can still be met under self-verifying detail.

§ Draper v. United States- the tip described the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor.

o The veracity prong

§ Officer must prove that the informant is reliable or that his information in the present case is reliable. Usually veracity met by showing the informant’s track record.

o Corroboration

§ If can’t meet the 2 prongs, info can still be use if police verifies the information.

· Illinois v. Gates

o Anonymous letter case. Court abandoned the 2 prong test of Spinelli. Even though veracity and basis-of-knowledge still very important, but not treated separately and weakness of one can be cancelled by the strength of the other. According to the Court, probable cause is a fluid nontechnical, common sense conception, based on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. So Ct. adopted the totality-of-the-circumstances standard.

· Ornelas v. United States- In warrantless cases, the appellate courts will view the issue of probable cause de novo. Therefore, it will be a question of law + facts. Court adopted this rule for judicial consistency and also to provide incentive to officers to obtain warrant, because if warrant, more deferential appellate review.

o Warrant Requirement

§ Supreme Court has stated that warrant requirement is the centerpiece of the law of search and seizure, and the pre-screening by neutral and detached magistrates is the heart of citizen’s protection against police over-reaching.

§ Justifications for warrant requirement:

· Judges might become bias after incriminating evidence is found to see if probable cause.

· Police officers more likely to lie after incriminating evidence is already found.

§ Jonhson v. United States- the magistrate who issues a warrant must be neutral and detached. The court in Coolidge v. New Hampshire held that the attorney general was not such neutral and detached party. Also, the Court has invalidated the process under which the magistrate received a fee when issued a warrant and no fee when no warrant.

§ Shadwick v. City of Tampa- Don’t need a law degree to issue warrant.

§ Franks v. Delaware- Negligent or innocent falsehoods will not invalidate a warrant. But if a ∆ can establish that the affidavit contained perjured statements or false statements made in reckless disregard of their truth, and provided the affidavit’s remaining content is not sufficient to establish probable cause, the search warrant will be voided and the fruits of the search will be excluded.

§ Particularity Requirement

· The description should be particular enough to permit an officer with reasonable effort to ascertain and identify the place intended.

· Objectively reasonable mistakes in the warrant application and the execution process may be tolerated.

§ Executing Warrants- Knock & Announce Requirement

· Police required to knock & announce. Wilson v. Arkansas, SC said that this rule is a constitutional requirement under the 4^th Amendment. WHY: want to avoid unnecessary damage to property; protection of the police officers; want to avoid unnecessary invasions of privacy

· Exceptions to K&A: if evidence of crime at risk of being destroyed.

· Richards v. WisconsinàSC said that can’t create crime specific exceptions to K&A rule (e.g. drug cases)

§ When serving a warrant in home or other such place (e.g. bar), police can’t frisk others present at the place unless officers have some reasonable suspicion.

§ It is a violation of the 4^th Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant in such circumstances.

v Exceptions to the Warrant Requirement

o Exigent Circumstances and plain view

§ Many situations create circumstances under which it is unreasonable to expect the officer to obtain a warrant before search or arrest.

§ Some generalizations

· All of the cases that fall under this exception involve emergent situations in which police act without warrant due to reasonable belief that criminal evidence will be destroyed or the suspect will avoid capture if officers take time to obtain warrant.

· The emergency that justifies the police action limits the appropriate scope of the search

· Probable cause still required!

§ Schmerber v. California- warrantless blood test upheld because alcohol level disappears with time and in this case, probable cause and the tests were effective and proper medically.

§ Warrant almost always required before searching a house. But 4 exceptions.

· Hot pursuit of a fleeing felon

· Imminent destruction of evidence

· The need to prevent a suspect’s escape

· Risk of harm to the police or others.

§ Warden v. Hayden

· Hot pursuit of a robber. Robber entered a house and police entered the house and arrested him. Court upheld this warrantless entry. In this case, exigency defined the legitimate scope of the search. Could search any place where a robber could hide and search ended when found suspect. Can also search places where ∆ can hide a weapon.

§ Mincey v. Arizona- shots fired and officer killed. Other officers quickly went in and looked for other victims. 10 minutes later, homicide investigators searched the house without warrant and found incriminating evidence. Court ruled that the later search was unconstitutional. Although the officers in the house at the time of the homicide were entitled without a warrant to search for victims and if they had found criminal evidence during that search they could property have seized it pursuant to the plain-view doctrine, the homicide investigators who arrived ten minutes later, when emergency caretaking process was over and the criminal investigation had commenced, were not entitled to enter without a search warrant.

o Plain View

§ An object of an incriminating nature may be seized without a warrant if it is in plain view of a police officer lawfully present at the scene.

§ 3 Elements:

· Lawful vantage point.

· Right to access to the object

· Right to seize is immediately apparent.

§ Lawful Vantage Point

· According to the Court, “an essential predicate to any valid warrantless seizure of incriminating evidence is that the officer did not violate the 4^th Amendment in arriving at the place from which the evidence could be plainly viewed.”

· 4 scenarios under which plain view validly can occur

o officer may discover the article during the execution of a search warrant

o during the execution of an arrest warrant

o under some of the exceptions to 4^th Amendment

o where no search under 4^th Amendment

· Right to access to the object

o An officer must have a lawful access to the object itself.

§ E.g. O walking on the street and observes marijuana in D’s living room. Even though the officer has lawful vantage point, but he just can’t enter the home and seize the marijuana.

· Right to seize is immediately apparent

o A police officer may not seize an object merely because he has lawful access to it from a lawful vantage point. The seizure of an article is legitimate only where it is immediately apparent to the police that they have evidence before them.

· Arizona v. Hicks

o Police lawfully in the apartment (exigent circumstances) and O observed an expensive stereo equipment from lawful vantage point had right to access to the equipment. But the equipment only seemed out of place and officer didn’t have probable cause. Officer moved the equipment to read the serial number and then determined that was stolen. Supreme Court held that the moving of the equipment was a new search which was not justified by the original exigent circumstances. So plain view doctrine inapplicable.

· Horton v. California

o Officer obtained warrant to search for jewelry which was taken in robbery. Officer also expected to find the weapons used in the robbery, but didn’t include in weapon. Sure enough, officer found weapons in the area legally provided by the warrant. Court took away the inadvertency requirement of Coolidge because it didn’t provide any additional protection to privacy. NOTE: if officer had found jewelry first, then the search would have ended there and then!

· Court has expanded the plain view doctrine to plain hearing and plain smell

· Plain touch doctrine:

o Police may seize contraband detected solely through an officer’s sense of tough if the officer had a right to touch the object in question and upon tactile observation, its identity as contraband was immediately apparent.

o Minnesota v. Dickerson

§ Officer observed ∆ acting suspiciously near a crack house and he lawfully frisked him for weapons. But felt and object which O knew wasn’t weapon but upon further touching, noticed was cocaine. Court held that officer went beyond which is allowed. If officer had immediately known that was cocaine, then would have allowed. But here officer started a new search which was not supported by the original Terry frisk.

§ Police

o Automobiles

§ Searches at the scene

· An officer may conduct an immediate at the scene warrantless search of an automobile that he has probable cause to believe contains contraband, or fruits, instrumentalities, or evidence of a crime if : 1. he stops the car on the highway or 2. the vehicle is readily capable of use on the highway.

§ Search away from the scene

· Police can seize the car and remove it to some other area and then search it there without a warrant.

§ Probable cause requirement

· Probable cause still required for the search.

· California v. Acevedo

o Police saw ∆ place bag in the truck and had probable cause to believe that bag contained contraband. On these facts, the police had probable cause to search only the trunk to look for the paper bag.

o Also, once the police discover the criminal evidence, the search must STOP! So in Acevedo, once bag found, police can’t continue searching for other evidence.

o Police may not search any portion of the vehicle that could not contain the object of the search.

· Carroll v. United States- Court held that Police can search car without warrant because car, unlike home, is mobile.

· Chambers v. Maroney- Police seize the car so no exigent circumstances. But later search allowed because ct. said that exigent circumstances are to be determined at the scene of the seizure.

§ California v. Acevedo

· If the police have probable cause 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 without a warrant.

· This case overruled Arkansas v. Sanders where the Court had held that if police had probable cause to believe that a container contained contraband, and the container was placed in a car, the police could not have searched the car without a warrant, unless there existed some exigent circumstances. According to the Court, the Sanders case failed to provide any additional privacy to people and confused the officers.

· But Acevedo ruling does not extend the Carroll rule. If officers don’t have probable cause to search all of the car, then can only search the areas where have PC.

§ California v. Carney

· Automobile exception applies to mobile homes because lesser expectation of privacy. “When vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes…the two justifications for the vehicle exception come into play.”

§ Containers in Cars

· A container is any object capable of holding another object.

· Rules: A container, even one belonging to a passenger, may be searched without a warrant during an otherwise lawful automobile exception search, even shortly thereafter at the police station.

· United States v. Chadwick

o Court held that police could have seized the container but not search it without a warrant after container removed to the police station. According to the Court, container is not as mobile as a car and also, there is greater expectation of privacy in a container.

· Arkansas v. Sanders

o Facts similar to Chadwick but this time police allowed the vehicle to drive away and then stopped and seized the container and searched it without warrant. Court said just because container was in a car doesn’t mean there was a lesser expectation of privacy. Furthermore, the exigency of mobility must be assessed at the point immediately before the search- after the police had seized the object to be searched and have it securely within their control.

· United States v. Ross

o Here, unlike Chadwick-Sanders, Police had probable cause to search the car and happened to run upon the container. Searched the container without warrant. Court upheld this search. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal objects; even containers belonging innocent passengers or people not connected to the car at all.

· So after Ross, 2 lines of container cases.

o If probable cause to search a container which was placed in a car, Chadwick-Sanders applied and needed search warrant.

o If probable cause to search a car, and container happened to be found during the lawful search, auto exception applied and container could be searched.

· California v. Acevedo

o Court overruled Sanders and announced that interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause.

o According to the court, the discrepancy between the two rules has led to confusion for law enforcement officers.

o What is left of Chadwick?

§ Court has never really overruled Chadwick. So if person carrying trunk on the street, police will need warrant to search. But if places in car, can search is without a warrant. This in itself creates an anomaly

§ Wyoming v. Houghton

· Police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.

§ Only limit which is present is the size limit. So if probable cause to find stolen TV in car, can’t look into small paper bags.

o Arrests

§ All arrests are seizures but not all seizures are arrests. Arrest is when the individual’s freedom of movement has been curtailed for an indefinite period of time.

§ All custodial arrests must be founded on probable cause.

§ Three general rules:

· Officer may arrest a person in a public place without a warrant, even if it is practicable to secure one

· May no arrest a person in his home without an arrest warrant, absent exigent circumstances or valid consent; and

· Absent exigent circumstances or valid consent, officer may not arrest a person in another person’s home without a search, and perhaps an arrest, warrant.

§ United States v. Watson- ∆ arrested in a restaurant for some credit card fraud and police didn’t have warrant. Court upheld the warrant-less arrest mainly based on history. Common Law, in felony cases, warrant-less arrests were perfectly legitimate. Furthermore, ∆ is arrested in public place. Warrant-less arrest in public place is fine. Majority stresses that the police is encouraged to obtain warrant when practicable.

· Justice Powell’s concurrence- this rule of the ct. gives seizures of persons less protection than searches and seizures of property. “A search may cause only annoyance and temporary inconvenience to the law-abiding citizen. An arrest, however is a serious personal intrusion regardless of whether the person seized is guilty or innocent.”

· Marshall’s Dissent: It turns out that history is not clear: 1. at common law, the category of all crimes called felonies was quite small and mostly punished by death penalty, 2. just because something has been practiced in the past, doesn’t mean that it is constitutional

§ Payton v. New York- Police had probable cause to arrest ∆ and went to his home and arrested him without a warrant. Court held that absent exigent circumstances, nonconsensual entry into a suspect’s home in order to make an arrest requires an arrest warrant and reason to believe that the suspect is within. According to the Court, the physical entry of a home is the chief evil against which the wording of the 4^th amendment is directed.

§ United States v. Santana- ∆ standing at the doorstep of the house and when spotted officer, ran inside the house. Ct. upheld the warrantless arrest. According to the Court, ∆ was in open view, touch, etc. when standing at the door and when ran inside, hot pursuit exception kicked in.

§ Some exigent circumstances[1]

· Evidence will be destroyed

· The suspect will escape

· Harm will result to police or others

§ Arrest in a third person’s home:

· Steagald v. United States- Police obtained arrest warrant for ∆ and knew that ∆ would be at friend’s house. Went to house, didn’t find ∆ but found drugs. Arrested the owner of the house. Court held that the arrest warrant for ∆ was an inadequate safeguard of owner’s independent 4^th Amendment right to privacy. A person whose home is searched for the presence of a guest is entitled, absent emergency or consent, to a prior judicial determination of probable cause to search the premises for the person to be arrested.[2] Court also worried about police abuse.

§ Atwater v. Lago Vista- Court concluded from historical analysis that 4^th Amendment didn’t intend to bar custodial arrests for minor fine-only offenses. The Court also concluded that it was impractical to device a constitutional line between jailable and fine-only offenses because we cannot expect every police officer to know the details of frequently complex penalty schemes.

o Searches Incident to Arrest

§ When officer makes a lawful arrest, he may contemporaneously search

· Arrestee’s person

· The area within arrestee’s immediate control

· If arrest occurs inside the home, officers can search closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.

§ Justifications for this rule:

· Concern for officer’s safety

· Risk of destruction of evidence

§ During such search, police may seize without a warrant any article found during the search if he has probable cause to believe that it is criminal evidence related to the current or another crime.

§ In order to apply this exception, the arrest has to be full custodial arrest

· Knowles v. Iowa- Officer could have arrested ∆ but only issued traffic citation and then searched the car. SC ruled that search was unreasonable because neither justification, disarming suspect & preserve evidence, applies where officer not arresting.

· This case seems like a victory for ∆, but remember, officer has to option to arrest ∆ and then conduct search incident to arrest.

§ Automobiles:

· New York v. Belton- Court came up with the ruled that a police officer may, contemporaneous to the arrest of an occupant of an automobile, search the passenger compartment and all containers found therein. So the officer can search the glove compartment, clothing, luggage, etc. in the passenger compartment. But can’t search the trunk or the engine compartment.

§ Protective Sweep

· Maryland v. Buie- If lawful arrest occurs in the home, officer may as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.

· Since not simply looking for weapons or evidence, place must be large enough for a person to hide and launch an attack.

§ Chimel v. California- Police with arrest warrant arrested ∆ in his 3 bedroom home. Then searched the whole house. Court held that the reasons justifying search incident to arrest not applicable to the entire home and therefore violated the Constitution. According to the Court, searching the entire home can also lead to abuse by officers. Dissent claimed that it is unreasonable to require officers to obtain search warrant because ∆’s family can destroy evidence and therefore exigency created.

§ United States v. Robinson- Officer arrested ∆ for traffic offense and during the search of his person, felt some cigarette packet. Upon further search of the packet, found heroin. Ct. upheld the search. According to the Court, a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4^th Amendment, that intrusion being lawful, a search incident to the arrest requires no additional justification.

v Reasonableness Suspicion

o Reasonable Suspicion

§ Terry v. Ohio- 39 years veteran officer spotted ∆ involved in suspicious conduct, but didn’t have probable cause. Officer frisked the outer clothing of person and found gun.

· Court held that there was a seizure. According to the Court, seizure occurs whenever a police officer accosts an individual and restrains his freedom to walk away. Furthermore, there was a search involved in this case. But ct. still recognized the swift action which the officer had to take based upon his on-the-spot observations. Therefore, the warrant clause was inapplicable to this entire rubric of police conduct and probable cause which is tied to warrant requirement is not applicable. The central inquiry is the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.

· How is reasonableness determined? A balancing test is applied where the need for search is balanced against the invasion which the search entails. Police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

§ The purpose of the Terry search is not to discover evidence. A pat-down of the outside of suspect’s clothing is limited to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. When a hard object that feels like a weapon is discovered, a full search under the clothing is allowed.

§ Reasonable Suspicion requires considerably less proof wrongdoing then preponderance of the evidence. All that is required for Terry stop is some minimal level of objective justification.

§ Informants in Terry context

· Adams v. Williams- an informant who once before had provided tip to police personally told officer that ∆ was sitting in car with drugs and a gun. Officer went to car and took the gun out of ∆’s waist. Court said that even though this unverified tip of informant wasn’t enough to fully search ∆, but it was enough to produce reasonable suspicion. Informant was known and provided info personally.

· Alabama v. White[3]- Anonymous informant called and told police that woman will be leaving apartment with a bag and enter some car and drive to motel and there are drugs in the bag. Police observed the woman and her actions and then pulled her over and with her consent searched the bag and found marijuana. Court upheld the limited search. According to the Court, the corroboration by the police of informant’s information was enough to provide reasonable suspicion.

· Florida v. J.L.- Anonymous informant told police that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. Police had no other incriminating info and still searched the ∆ and found gun. Unanimous court ruled that there was no reasonable suspicion. According to the Court, “if White was a close case on reliability of anonymous tips, this one surely falls on the other side of the line.” Court considered that the predicative information that the police could corroborate which was present in White was completely missing here.

· Sc has ruled that the fact that a person was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that he himself was engaged in criminal conduct.

o Illinois v. Wardlow- ∆ was standing in a high crime area and upon spotting police, fled the scene. Court ruled that the high crime nature or the area and the suspect’s unprovoked flight established reasonable suspicion to seize the suspect under Terry.

§ Terry stop vs. arrest

· The line between a terry stop, which only requires reasonable suspicion, and arrest, which requires probable cause, is very fuzzy. Bus some factors that court has considered:

· Length of the Detention

o No bright line rule here.

o United States v. Sharpe- court upheld a 20 minute detention of suspects. According to the Court, the officer pursued his investigation in a diligent and reasonable manner, the method of investigation was likely to confirm or dispel the officer’s suspicions quickly and the detention lasted no longer than was necessary to effectuate the purpose of the stop.

o U.S. v. Place- Court held that the 90-minute retention of the suitcase without probable cause violated the 4^th Amendment. But court recognized that when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.

· Forcible Movement of the Suspect

o Dunaway v. New York- Police took ∆ to police station for questioning. Although told that he was not under arrest, the SC treated the police action as de facto arrest, requiring probable cause.

o Florida v. Royer- ∆ was moved to a room for questioning and court held this tantamount to an arrest. According to the Court, there was no finding of a legitimate law enforcement purpose for moving the suspect.

· SC has held that whenever an officer lawfully stops a vehicle on the road, even for a minor traffic violation, it is reasonable for the officer to order the driver out of the car.

· Maryland v. Wilson- Officer can order drivers and passengers to get out of the car.

· Existence of Less Intrusive Means

o Florida v. Royer- Ct. stated that there was less intrusive methods available to officers than to search the luggage of ∆.

o US v. Place- Court held that the 90-minute detention of ∆s luggage in order to get a dog to sniff the luggage, was unreasonable because the government agents had prior warning of ∆’s intended arrival and could have minimized the intrusion of ∆’s 4^th Amendment interest by having the dog available when ∆ arrived.

§ Pat-down: if an officer feels no object during a pat-down, or he feels an object that does not appear to be a weapon, no further search is justifiable. If the initial pat-down with no further touching provides the officer with probable cause for believing that an object felt is contraband or other criminal evidence, he may pull out the object without a warrant based on the plain-touch doctrine.

· Minnesota v. Dickerson- If officer during the scope of a legitimate Terry pat-down feels contraband and has probable cause, based on plain touch doctrine, can seize the contraband. But in this case, the officer further squeezed the object and only then had probable cause that it was cocaine and since the activity exceeded the scope of a legitimate frisk for weapons, the seizure was illegal.

§ Weapon Searches of Automobiles

· Michigan v. Long

o ∆ suspected of being drunk. Officer did Terry-like pat-down of ∆, and then searched the passenger compartment looking for weapons. Search upheld under Terry rationale. Just as police may frisk the body of a suspect, even one who has not been arrested, if they reasonably believe that he may be armed, so they may search the passenger compartment of his car if two conditions are met: 1. they reasonably believe, based on specific and articulable facts that he is dangerous and may gain immediate control of weapons if these are in the car, and 2. they look only in those parts of the passenger compartment where weapons might be placed or hidden.

§ Seizure of Property

· US v. Placeà Seized luggage for 90 minutes. Court held that police officers may, without a warrant, temporarily detain luggage on the basis of reasonable suspicion that it contains narcotics, in order to investigate the circumstances that aroused the suspicion.

· Therefore, can see that Terry not only allows temporary seizure of persons, but it also allows temporary seizure of property.

o Roadblocks and Consent Searches

§ US v. Martinez-Fuerte- Court approved the suspicionless stopping of vehicles at a permanent checkpoint on a highway leading away from the Mexican border. According to the court, the need to make routine checkpoint stops is great and the consequent intrusion on 4^th Amendment rights is quite limited. Ct. distinguished fixed checkpoints from roving patrols: 1. lesser intrusion because motorists can spot checkpoints ahead of time, 2. less individual officer discretion involved.

§ Delaware v. Prouse- Officer involved in random stops of vehicles to check for drivers license and registration. Ct. said this practice violated the 4^th Amendment. First of all, in this case the officer had too much discretion and secondly, the benefits of such stops were only marginal. But ct. said that this holding does not preclude a state from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion.

§ Michigan v. Sitz- Court upheld the initial stop of vehicles at a sobriety checkpoint. Ct. said that there was less arbitrary decisions involved, and no surprise factor. Also, statistical evidence of effectiveness of such checkpoints. Ct. was very deferential to other political bodies when it came to the effectiveness of the checkpoints in alleviating the problem of drunk driving.

§ Indianapolis v. Edmond

· Police conducted a narcotics interdiction checkpoint. Program very effective but still ct. found it unconstitutional. According to the court, the border-stop and sobriety-checkpoints were designed primarily to serve purposes closely related to problems of policing the border or the necessity of ensuring roadway safety. In this case, on the other hand, the checkpoint’s primary purpose was to detect evidence of ordinary criminal wrongdoing. The court stated that it is reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.

§ After Edmond, courts are to determine the primary purpose of the checkpoint. Subjective intent of police officer is irrelevant.

o Consent Searches

§ Validly obtained consent justifies an officer in conducting a warrantless search, with or without probable cause.

§ Justification for consent searches:

· Used to be that consent searches are justified because person waives his constitutional rights. But this justification is no longer in use.

· Second rationale is that a person who voluntarily consents no longer has a reasonable expectation of privacy.

· Current view is that a consent search is a reasonable search.

§ Validity of Consent

· Burden of proof is on prosecutor to demonstrate by preponderance of the evidence that consent was freely given.

· The voluntariness of consent is determined from the totality-of-the-circumstances test. Some factors to consider: a show of force by police, such as display of guns, the presence of a large number of officers, which may suggest to the person that the police are contemplating an undertaking which does not depend upon the cooperation of the individual; repetitive requests for consent after refusal; evidence relating to the consenting person’s age, race, sex, education, emotional state, etc.

· Schneckloth v. Bustamonte- ∆ argued that consent is not valid unless prosecution proves that ∆ knew that he and the right to refuse to the search. The SC disagreed. According to the Court, the person’s awareness or lack thereof of a right to refuse consent is simply one factor, among all of the surrounding circumstances, to be taken into account in determining the voluntariness of the consent given.

§ Scope of the Search

· A warrantless consent search is invalid if an officer exceeds the scope of the consent granted.

· Florida v. Jimeno- ∆ consented to the search of the car and officer found cocaine in a paper bag. Lower ct. said that ∆ didn’t consent to the search of the container. SC declared that the standard for measuring the scope of a suspect’s consent is that of objective reasonableness- what would the typical reasonable person have understood by exchange between the officer and the suspect? Ct. upheld the search.

§ Third Party Consent

· Stoner v. California- Police obtained consent from a hotel clerk to ender ∆’s hotel room. The court ruled that consent was invalid.

· United States v. Matlock- Ct. announced that warrantless search is constitutionally valid if the police obtain consent from one who possesses common authority over the property searched.

· Illinois v. Rodriguez- warrantless entry of a residence is valid when it is based on the consent of a person whom the police, at the time of entry, reasonably but incorrectly believe has common authority over the premises. According to the court, “what is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated.”

o Non-police searches and seizure (Special Needs Cases)

§ Special needs doctrine applies when special needs, beyond the normal need for law enforcement, make the warrant and/or probable-cause requirements impracticable. Special needs exception does not apply when the immediate objective of the search is to generate evidence for law enforcement purposes.

§ Veronia School District v. Action

· 4^th Amendment involved because state actors involved.

· Who is targeted: school athletes. Random scheme and no individual scheme involved.

· If test positive: suspension from athletic season or 6 month program

· According to the court, why don’t we require a warrant or probable Cause in this case?

o Special needs beyond normal needs.

o This term first came out in New Jersey v. TLO- principle searched purse of student for cigarettes. SC said that this search was constitutional because special needs. In this case, there was some degree of individual suspicion.

· Skinner Case: railway employees are subjected to drug test when there is an accident without any degree of reasonable suspicion.

· Von Raab: drug tests for US Customs service employees being promotes drug tested

· Chandler v. Miller: aspiring candidates to drug test. Court applies balancing test and comes out that this was invalid because was only symbolic

§ Court in Acton describes a couple of factors;

· Students have lesser expectation of privacy as opposed to adults. Also, school sports are not for the bashful.

· Nature of the Intrusion: there is not much of an intrusion: because students don’t have to undress. Also, only looking for drugs and not pregnancy and other stuff. And only few people get the report

· Also governmental interest is extreme: Drugs are a major problem

§ What about the alternative offered by student:

· Court states that 4^th Amendment reasonableness doesn’t require the least intrusive method for getting to the heart of the problem.

§ Board of Education v. Erl

· Court upholds a drug policy similar to Atkon that applied to all students who took part in extracurricular activities

· SC says that we are not going to require quantifications to see how big drug problem is.

o Special needs, suspicionless searches, law enforcement interest

§ Ferguson v. Charleston

· Concern is drug use by mothers. 4^th amendment matters because it is a public hospital.

· Policy M7 Program: test the urine of mothers and if positive then turn over to police.

· No individual suspicion against the women who are tested.

· Focus on special needs and not on consent.

§ What is different about the Charleston Program:

· The involvement with the police

· Can we inquire into the purpose of the particular program (in Whren the court said that can’t look at the purpose of officers. But in this case, we didn’t want to inquire into individual one officer) But in this case, we have a program and there is a departmental purpose behind the program and the court can look at the purpose of the program (This case like Edmond)

· The purpose of the program is the stop drug use. Just like Edmund, the court said that law enforcement purpose can’t be it.

· The motive of those who devised the program is irrelevant.

v Substantive Law

o Welsh v. Wisconsin

§ ∆’s care drove into the fields and witnesses told police that ∆ was very sick or drunk. Officer’s went to ∆’s house and arrested him in his room. Ct. said that there was no hot pursuit exception here and ∆ was not danger to anyone when he was arrested. Furthermore, there might be risk of destruction of evidence but this was a minor traffic violation and it was not enough to outweigh the 4^th Amendment rights a person enjoys in his home.

§ Welsh is an extremely unusual case because the Court hinge the resolution of an important 4^th Amendment issue on the underlying substantive law. Why does the substantive law matters here and not in Whren?

o Chicago v. Morales

§ Ordinance struck down because too vague and gives too much discretion to the police officers.

v Limits to the Exclusionary Rule

o Good Faith Exception

§ United States v. Leon

· Ct. determined after warrant already served that it was invalid because it was not supported by probable cause. The Court upheld the search. According to the Court, a search warrant later declared to be invalid may be introduced at a ∆’s criminal trial if a reasonable well-trained officer would have believed that the warrant was valid. This test is an objective one. But if office has bad intent, that can be considered in the test as one of the factors.

§ Leon Exceptions

· Leon doesn’t apply if the magistrate who issued the warrant relied on information supplied by an affiant who knew that the statements in the document were false or who recklessly disregarded the truth.

· Leon doesn’t apply if the magistrate’s behavior was so lacking in neutrality that a reasonable officer would have realized that the magistrate was not functioning in an impartial manner.

· The officer may not rely on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

· Leon doesn’t apply when an officer relies on a warrant so facially deficient- i.e. in failing to particularize the place to be searched or the things to be seized- that the executing officers cannot reasonably presume it is valid.

§ Reasoning of Leon

· Exclusionary rule was designed to deter officers not judges and no such effects are found.

· Also, don’t want to discourage law enforcement personnel from seeking warrants.

o Standing

§ What is the meaning of standing?

· Ability for the court to recognize that you have a wrong that may or may not be needed to be protected.

§ Jones v. United States, Court used the target theory to define standing. In order to have standing to challenge an illegal search or seizure, one must have been a victim of the search of seizure, on against whom the search was directed, as distinguished from on who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

§ Rakas v. Illinois- Court rejects the target theory and adopts the definition that in order to determine standing, have to see whether ∆ had reasonable expectation of privacy.

§ Minnesota v. Carter- In this case, there is brief investigation of Carter and his associate. They are in an apartment belonged to someone else. They were in apartment for about 2 hours to bag cocaine. Officer has some anonymous tip.

· What kind of protection do overnight guests have: they have standing to challenge a legal police 4^th Amendment activity.

· But that is not what is happening here: they never even met the person here who owned the apartment, also they were there for only commercial illegal activity. But SC is not going as far as to say that you don’t have reasonable expectation privacy in bagging cocaine but here court is using it as one factor. So Carter and Johns don’t have standing.

· Justice Kennedy in concurrence: Most Social guests have legitimate expectation of privacy. But here Carter and Johns are not social guests but have only insubstantial connection with the apartment. So they are not guests.

· Justice Bryer concurs: there is no search here at all so why the fuck are we dealing with standing at all. Officer was not even standing on the curtilege at all. But says that he agrees with Ginsburg’s dissent

· Dissent: Kennedy says that yes most social guests have standing. Breyer, Ginsberg. Stevens, Souter. So in fact, even though 3 folks in dissent, we have 5 votes for the proposition that some social guests who are not necessarily overnight guests have reasonable expectation of privacy.

§ Rawlings v. Kentucky- ∆ placed cocaine X’s purse and police searched here purse and ∆ admitted that cocaine belonged to him. SC held that ∆ had no standing to challenge the search. According to the Court, Rakas rejected the view that arcane concepts of property law controlled the standing issue. Ownership of the property is just one of the factors for the court to consider. Here the Court held that ∆ did not have a reasonable expectation of privacy in X’s purse.

§ Hypo

· Suppose, police search X’s house illegally and find no evidence but find slip of paper with Y’s address.

· Then go to Y’s house and search Y’s home illegally. And find criminal evidence implicating both X & Y.

· Does Y have standing: yes, because have reasonable expectation of privacy

· Does X have standing: yes, because his house was search illegally first.

§ HYPO #2

· Suppose X’s house search legally. In this case, x has no standing.

o Fruit of Poisonous Tree

§ Exclusionary rule extends not only to the direct products of governmental illegality, but also to secondary evidence that is the fruits of the poisonous tree.

§ There are 3 exceptions to this doctrine

· Independent source doctrine

· Inevitable discovery rule

· Attenuated connection principle

§ Independent Source Doctrine (ISD)

· Two versions of the ISD:

o Where police discovers the evidence lawfully the first time around.

o Where police first find evidence unlawfully, but later obtain it in lawful manner.

§ Murray v. United States- Officer entered a warehouse without a warrant and observed burlap-wrapped bales which they suspected contained marijuana. Officers left the warehouse and then obtained a warrant based on an untainted affidavit. Court said that independent source doctrine can apply if can find that police would have applied for the warrant even if they had not entered the warehouse.

§ Some argue that Murray provides incentive to police to conduct unlawful confirmatory searches. Warrant process is a headache so officers can just see if this headache is worth it.

§ Inevitable Discovery Rule

· Nix v. Williams- Evidence linked to an earlier illegality is admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means.

§ Attenuated Connection Principle

· Evidence secured as a result of police illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint.

· Wong Sun v. US- Question is whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

· Some factors to consider:

o Temporal ProximityàThe shorter the time lapse, the more likely that will be consider a fruit.

o Intervening EventsàThe more factors that intervene between initial illegality and the seizure of the challenged evidence, the more likely that the evidence will be admitted.

o Intervening Act of free willà E.g. in Miranda, ∆ was released and then voluntarily came back to station to sign some written statement. Ct. said this voluntary action expunged the taint.[4]

v Fourth Amendment Outside Criminal Litigation

o Alternatives to the Exclusionary Rule

§ Unconstitutional searches and seizures may give rise to state tort claims such as false arrest or trespass, or claims under state constitutions. Also, 42 U.S.C. § 1983 gives Πs a cause of action in federal or state court when their federal constitutional rights have been violated by persons acting under the color of law.

§ Individual officers may be held personally liable for 4^th Amendment violations under federal law. But Πs must overcome the obstacle of qualified immunity.

§ Anderson v. Creighton- standard of review – whether sufficiently clear that a reasonable official would understand that what he is doing violates right

· subjective belief of officer is immaterial – consistent w/ Whren

· even if established that right violated, must be unreasonable

· must be unreasonably unreasonable. So the court is saying that damages are available against officer only when his behavior was something of gross negligence.

· precise content of Constitution’s civil liberties guarantees rests upon assessment of what accommodation btwn govt need and indiv freedom is reasonable

· if allowed damages for every violation of right,

o would instill fear into police that might be mistaken

o would kill funds for other community/state needs

§ Injunctions

§ Los Angeles v. Lyons--Lyons has standing re: retrospective, but no standing on prospective injunctive relief

· and that he would have another encounter w/ police and that

· all police officers in LA always choke any citizen, OR

· LA ordered or authorized police officers to act in such manner

o Police Use of Force

§ Tennessee v. Garner

· Facts: Officer called to scene for a burglary in process. Officer saw one of the suspects trying to climb over a fence and officer ordered him to stop. But suspect didn’t obey the orders and officer fatally shot the suspect. Officer didn’t see any weapons on the suspect.

· Holding: Even where the officer has probable cause to make an arrest, the level of intrusion in such arrest can make it repugnant to the 4^th Amendment. Use of deadly force to arrest a fleeing suspect is sometimes an unreasonable seizure under the 4^th Amendment. Therefore, unless the officer has no reason to believe that the suspect poses an immediate threat of death of grave bodily injury to himself or others, the use of deadly force is not justified under the Constitution.

§ Graham v. Connor

· Facts: Graham suffered from insulin reaction and went to store to buy orange juice. But due to long lines, he came right out and asked the friend to drive him to another friend’s house. An officer observed the quick entry and exit of Graham from the store and because suspicious. Officer made and investigatory stop and the events that pursued gave rise to the use of excessive force claim by Graham against individual officers.

· Issue: What constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other seizure of his person?

· Holding: 4^th Amendment Reasonableness test

· Rationale: The appellate court erred by applying the 4 step substantive due process test. 4^th Amendment is the most appropriate place to start in this type of cases. The reasonableness of a particular seizure under 4^th Amendment not only depends on when the seizure was made, but also on how it was made. In considering the reasonableness of the actions of the officers, the court is required to balance the nature and quality of the intrusion on the individual’s 4^th Amendment interests against the countervailing governmental interests at stake. Court can consider factors such as whether the suspect poses an immediate threat, whether suspect is actively resisting arrest, etc. Also, in judging the reasonableness of officer’s action, an objective standard will be used. The subjective thoughts of the officers are irrelevant. Furthermore, in this objective test, the court cannot use the benefit of hindsight.

5^th Amendment

v Kastigar v. United States

o Under Federal statute, a witness my not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or their information compelled under the order or any information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

o Issue is whether this immunity is coextensive with the scope of the 5^th Amendment privilege.

o Use and derivative use immunity: immunity the keep government from using the compelled testimony and evidence derived therefrom

o Transactional immunity: Immunity that keeps the government from prosecuting from the offense to which compelled testimony relates.

o Use immunity is coextensive with the 5^th Amendment and the transactional immunity provides more protection than necessary.

o Also, use immunity granted in state court does not allow federal government or other jurisdictions to use this evidence.

v Privilege Against Self-Incrimination

o Usually, person must explicitly claim his 5^th Amendment rights or considered waive. But 3 exceptions:

§ Police interrogation

§ A peculiar exception that excuses statutory reporting requirements for inherently suspect classes

§ Cases in which exercising one’s rights would be penalized.

o Core of 5^th Amendment

§ Compulsion

· Person has been ordered to testify by a state actor who has the power to sanction the refusal to testify

§ Testimony

§ Incrimination

· 5^th Amendment privilege is implicated only when the compelled evidence is incriminating.

o Privilege against compelled self-incrimination is a fundamental right applicable to the states- Malloy v. Hogan

v Police Interrogation

o Why does the public favor confessions?

§ Public believes that one who has confessed has taken a great step towards paying his debt to society.

§ Also provides strong evidence to secure conviction.

o Why are we concerned about confessions?

§ Act of confession runs contrary to ordinary behavior. So fear that confession obtained by coercion.

§ Such confessions are not reliable. Furthermore, law enforcement officers will be given the power to run the system.

§ There use is so offensive to civilized society.

o Some questions to consider in this section?

§ To what extent confessions were reliable before SC got involved? Why do we want to avoid coerced confessions? How important are confessions in the prosecution of crime? To what extent has the SC made it more difficult for the police to obtain reliable confessions? Have the constitutional rules created equality in the interrogation room? Is the SC the proper institution to develop interrogation rules?

o Under common law, involuntary confessions were excluded.

o Bram v. United States

§ Case that brought federal police interrogation under the 5^th Amendment. But used the common law standard of voluntariness. So case-by-case analysis.

o Escobedo v. Illinois- Court extended the Massiah rule that the government may not deliberately elicit statements from a person under indictment in the absence of counsel to the pre-indictment interrogations.

o Court in 1936 ruled that involuntary confessions usage deprived the ∆ of due process.

o 5^th Amendment’s privilege against self-incrimination vs. Due Process clause prohibition of involuntary confessions.

§ At the present time, there is no apparent legal difference between the meaning of a compelled confession in 5^th Amendment self-incrimination context and an involuntary one in the due process framework.

o Requirement of State Action

§ Colorado v. Connelly- Person hearing voices of God to confess to his crime. So if we think about it, confession clearly involuntary. But Court rules that the state action is missing. In order to apply 5^th Amendment and the Due Process, state action required. Person’s mental state is just one of the many factors to consider. The dissent worries about the reliability of the confession. This shows that Court not really worried about the reliability of confessions because if it was, this case would have come out differently.

o Scope of 5^th Amendment Exclusionary Rule

§ Coerced confession may not be introduced in prosecutor’s case-in-chief and it is also inadmissible for impeachment purposes. Therefore, 5^th Amendment exclusionary rule broader than 4^th Amendment.

v Miranda v. Arizona

o A lot of confusion created by Escobedo and its entanglement with 6^th Amendment right to counsel.

o Miranda facts involved 4 cases and these cases involved the following similar circumstances:

§ Each suspect was taken into custody, they were questioned in the interrogation room, the questioning occurred in a police-dominated environment, the suspects were never informed of their privilege against compulsory self-incrimination.

§ Holding: Any statements, whether exculpatory or inculpatory, obtained as a result of custodial interrogation may not be sued against the suspect in criminal trial unless the prosecutor proves that the police provided procedural safeguards effective to secure the suspect’s privilege against compulsory self-incrimination.

§ Custodial interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

§ Furthermore, person also 5^th Amendment right have counsel present at questioning. Court constructed the 4 Miranda Warnings. Congress and states are free to develop alternative procedural safeguards but have to be just as or more effective.

§ What is the gist of the Dissent

· Where are the required warnings coming from? Not in the constitution. SO how can we say that it is required!

· Rule handicaps law enforcement. What suspect in his right mind is ever going to waive his Miranda rights? Isn’t this the end of police interrogations

o Waiver of Miranda rights

§ Suspect may waive his rights but a heavy burden rests on the prosecutor to prove that suspect voluntarily, knowingly, and intelligently waived his rights.

§ Waiver can’t be intelligent and knowing unless warnings read to the ∆.

o Is Miranda Constitutional requirement

§ Yes:

· Otherwise how would it apply to states (remember USSC doesn’t have supervisory power over state courts)

· Otherwise how would the constitutional rights be appreciated

§ No

· Since Court suggest that these warnings are only in place until Congress or states can come up with something equivalent or better shows that not constitutional requirement.

§ For 30 years, the USSC struggled with the question whether Miranda rules constitutional or prophylactic rules.

§ Dickerson v. United States (2000)

· Congress tried to overrule Miranda by § 3501. But Justice Rehnquist’s majority rules that Miranda is constitutionally required and Congress cannot overrule it.

· Reasoning: Miranda opinion shows that Court was announcing a constitutional rule. As far as Court giving power to Congress and states to come up with alternatives, it was only talking about alternatives to the particular warnings and not the procedure for safeguarding 5^th Amendment rights. Also, the fact that USSC applied opinion to states shows that constitutionally required because SC doesn’t have supervisory power over states.

o Scalia’s Dissent: such argument is a classic example of begging the question.

· Furthermore, court used the principles of stare decisis in refusing to overrule Miranda. Also, Miranda has worked and the warnings have become part of our national culture.

o Meaning of Custody

§ Miranda warnings required if there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

§ Objective test. Subjective views are irrelevant. Question is how a reasonable person in ∆’s shoes would have understood his situation.

§ E.g. O pulls over D for speeding and orders him to stand outside of his car. O notices that D having hard time standing and drunk. O knows that he will end up arresting D but doesn’t tell D. O asks if D drunk and D confesses. Confession admissible because even though O knew he would arrest D, but a reasonable driver wouldn’t think that he is in custody at the time D confessed.

§ Miranda warnings are required prior to custodial interrogation regardless of the site of the interrogation. So a person maybe in custody even in his own home. On the other hand, if a person voluntarily accompanies officers to police station, not in custody.

§ Miranda warnings apply to all custodial interrogations whether crime minor or major. Court likes the clarity Miranda rule provides.

§ Miranda warnings apply if person deprived of his freedom of action in any significant way. But not all stops significant. Therefore, 4^th Amendment Terry seizures do not come under the Miranda rule.

Minnesota v Murphy: M on probation

-M tells counselor from probation program that raped some girl

-counselor tells probation officer (PO)
-PO sets up general meeting w/ M

-tells M at meeting about what counselor told her

-M admits rape there

-no Miranda warnings

-M wants to suppress confession

-interrogation? YES

-custody?

-generally, have to invoke right

-exception: Miranda – burden on police to give warnings of rights

-but Miranda not self-executing, have to be in custody

-Minn SC: as probationer, have to go to meetings

-USSC: yes, required to go to meetings, but not “inherently coercive” w/in Miranda

-totality of circumstances would not overbear free will

-Minn SC: PO sought incriminating evidence

-USSC: probationer should know that PO looking for incriminating evidence

-PO’s knowledge and intent have no bearing on outcome of case

-a la Whren

-Minn SC: M did not expect questions about prior criminal conduct and could not seek counsel before attending meeting

-USSC: probationer should expect questions about prior criminal action

-and that probationer got letter saying new terms were to be set, should suggest to probationer that new info had come to light

-probationer has been through process before, so should know

-BULL-SHEET!

-nothing different from noncustodial settings and grand jury witnesses unaware of scope of investigation

-Minn SC: no observers to guard against abuse/trickery

-USSC: again, nothing different from noncustodial settings ,where no warnings are required

-M can’t say want a lawyer and just get Miranda privilege

-has to be in custody to get that

DISSENT, MARSHALL:

-can Murphy be reconciled w/ other cases concerned w/ informed choice?

v Meaning of Miranda Interrogation

o Rhode Innis

§ ∆ was placed in car and officer said that afraid that some little girl might find the weapon and kill herself. ∆ showed the police where he hid the weapon. The events occurred after Miranda warnings had been given but ∆ had requested to see a lawyer and all interrogation was suppose to stop.

§ According to the Court, Miranda interrogation refers not only to express questioning but also to its functional equivalent. Functional equivalent of express questioning is any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. OBJECTIVE TEST: Should the officer have realized that his acts or words were reasonably likely to result in an incriminating response from the suspect?

§ Even though the subjective intent of the officer not the key, but could be relevant (e.g. where the officer knows of susceptibility of the ∆ to a particular form of persuasion- e.g. the Christian burial speech of Brewer v. Williams).

§ In this case, ct. concluded that no interrogation. Police conversation brief, comments not especially evocative, and no evidence that officers knew that ∆ was susceptible to an appeal to conscience.

o When interrogation not Miranda interrogation- exceptions to the Innis rule

§ Miranda warnings not required, even in response to direct questioning or its equivalent, if custodial interrogation by an undercover officer- Illinois v. Perkins.

§ 5^th Amendment does not protect a person from being compelled to produce real or physical evidence as distinguished form evidence of testimonial or communicative nature. Shcmerber v. California

§ Pennsylvania v. Muniz

· Officer asked ∆, drunk driver, questions such as his name age etc. Court said these questions not interrogation. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice does not, without more, compel him to provide a testimonial response for purposes of the privilege.

· But questions where the content of the answer incrimination, falls under Miranda interrogation. According to the Court, in this situation, the inference of ∆’s intoxication is drawn from the testimonial act (his answer) and not from physical evidence (slurred speech).

o Adequacy of the Warning given

§ Duckworth v. Eagan- Police used a different version of the Miranda warning and SC said it was ok. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.

o Waiver of Miranda Rights

§ Constitutional right may not be waived unless there is an intentional relinquishment or abandonment of a known right or privilege.

§ Waiver must be voluntary. It must be product of a free and deliberate choice rather than intimidation, coercion, or deception.

§ Waiver must also be knowing and intelligent. Which means that waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

· This rule has not been applied strictly by the Supreme Court.

· Oregon v. Elstad

o ∆ confessed to a crime before Miranda warnings were given. Then the police read him his Miranda warnings and ∆ waived his rights and provided more incriminating statements. ∆ argued that his pose-Miranda statements should be excluded because he believed that the cat was out of the bag so his waiver was not knowable and intelligent.

o Court ruled that the ∆’s ignorance of the full consequences of his decisions does not vitiate the voluntariness of confessions. Therefore, ∆ must have a full awareness of the consequences of abandoning the Miranda rights, but need not have awareness of the full consequences.

§ Moran v. Burbine

· ∆ not informed that his attorney had talked to the police and police lied to the attorney that they wouldn’t interrogate ∆ for the day. ∆ read his Miranda warnings but he waived.

· Ct. held that Miranda not violated. Even though police conduct distasteful, but even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights. Unlike Escobedo where ∆ was told that his attorney didn’t want to see him, here the deception was directed towards the attorney.

o Suspect Asserts His Rights

§ Right to Remain Silent

· Michigan v. Mosley

o ∆ arrested and read his Miranda rights. ∆ invoked right to remain silent and interrogation ceased. Two hours later, a different officer, who wanted to interrogate ∆ for different crime, whet to cell and re-read Miranda warnings and ∆ waived.

o Ct. held no violation of Miranda. When suspect invokes his privilege to remain silent, it doesn’t mean that police may never resume interrogation. The suspect’s right to cut off questioning is satisfied if the police scrupulously honor his right to silence after he asserts his privilege. Therefore, there is a case-by-case analysis.

§ Right to Counsel

· Edwards v. Arizona

o Police read ∆ his Miranda warnings and ∆ asked for an attorney. Next day interrogated him again and he waived.

o Miranda violated. When a suspect invokes his right to counsel, the suspect is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. The purpose of the bright line rule is to prevent the police from badgering a ∆ into waiving his previously asserted Miranda rights.

· Arizona v. Roberson- Edwards rule isn’t offense specific.

· Minnick v. Mississippi- Once suspect in custody invokes his Miranda right to counsel, the police must not only permit the suspect to consul with an attorney but they may not re-initiate questioning unless counsel is present.

· Therefore, under this strict rule, once a person in custody requests counsel, it is as if a protective shield surrounds him. The police many not interrogate about any crimes unless the lawyer is present and valid waiver obtained OR the ∆ initiates further communication, exchanges, or conversations with the police.

· What constitutes further communication with police?

o Oregon v. Bradshaw: Ct. rued that communications, exchanges or conversations are initiated for the purposes of Edwards rule by any comment or inquiry that can be fairly said to represent a desire to open up a generalized discussion relating directly or indirectly to the investigation. Whereas comment or inquiries relating to the routine incidents of custodial relationship not further communication.

· Davis v. United States- Edwards protection does not apply unless a suspect unambiguously asserts his right to counsel. Inquiry is an objective one.

o Situations When Miranda Warnings Not Required

§ New York v. Quarles

· Court recognized the public safety exception. There must be an objectively reasonable need to protect the police or the public from an immediate danger. Subjective motivation of the officer irrelevant.

§ Illinois v. Perkins- no warnings required when undercover officer involved. ‘

§ Routine-Booking-Questions Exception- Pennsylvania v. Muniz

o Fruits of the Poisonous Tree Doctrine

§ The Miranda rule supports no fruits of the poisonous tree doctrine.

§ Oregon v. Elstad

§ statement without Miranda. Then Warning and then waiver.

§ Issue: whether fruits doctrine applies to invalidate the waiver because first statement clearly unconstitutional?

§ Ct. defined these rules as Prophylactic and not constitutionally required. Violation of Miranda is not necessarily a constitutional violation.

§ Michigan v. Tucker- Testimony of a witness was at issue and the name of the witness came about in violation of Miranda. Ct. said that since wasn’t tainted by Constitutional violation, should be admitted.

§ In this case, Ct. thinks that MIRANDA WARNING RESTORE SUSPECT”S FREE CHOICE! BULLSHIT! So the subsequent statement gets in.

§ No fruits analysis in Miranda context.

§ BUT NOW MIRANDA RULES, PER DICERSON, ARE CONSTITUTIONAL. Even though for this class purposes this is good law, but this just doesn’t make much sense anymore.

§ What is the practical effect of this rule? There is more of incentive to violate such rules by officers because no fruit doctrine. SO any ct. after Elstad has to be careful as to whether Miranda violation or Constitutional violation.

§ If you are the prosecutorà even if Elstad had come out the other way, Elstad still might have come out in the government’s favor. It is not absolutely clear that Elstad was in custody at the time the first conversation because it took place at El’s home.

v 6^th Amendment Revisited

o Massiah v. United States

§ Federal government indicted ∆ for violating narcotics laws. Another person who was charged with same crime agreed to help police and agents installed listening device in I’s car where I and D had conversation.

§ Court ruled that 6^th Amendment was violated when there was used against ∆ at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.

o 6^th Amendment right to counsel is offense specific

§ So two questions to ask: 1. have formal judicial proceedings commenced against the accused? If yes, then ask whether such proceedings have commenced in regard to the offense that is the basis of the interrogation of surreptitious elicitation? If no, then no automatic right to counsel.

§ McNeil v. Wisconsin- ∆ who was formally charged with armed robbery, was asked questions in regard to some other crimes for which ∆ had not yet been arrested or formally charged. The Court held that the 6^th Amendment had not attached to the latter crimes at the time of the interrogation, although it applied to the armed robbery.

o Brewer v. Williams

§

November 24, 2003

v Colorado v. Connelly

v Last Thursday we covered Quarles- public safety exception to Miranda

v Oregon v. Elstad- no fruits doctrine in Miranda context

v Today final of confession law. Before Miranda, all we had was due process.

v Colorado v. Connley- ∆ came to Denver for the purpose of telling the police that he had killed a young girl. Police officer give him his Miranda warnings and there is a waiver

o We have 2 issues: Miranda waiver and then due process issue

o Is there any indication that police would think that police did something wrong? NO. ∆ concedes that police didn’t do anything wrong. What is the trial ct’s determination? Trial ct. says that waiver was not voluntary.

o Was the confession voluntary under due process? Trial ct. says that the confession was not voluntary either because his disease makes it such that makes it hard to say that he is speaking from free will.

o UNDER DUE PROCESS- STATE IS PROHIBITED FROM DEPRIVING A PERSON FOR LIFE LIBERY.

o USSC says that the Colorado SC missed the pointà in order to due process, you have to find some link between state coercive actions and confession.

o What about the Miranda issue? There is no reason to suggest that the context of Miranda is going to give any more protection that due process.

o What is the role of debilitating condition? This can be one of the factors in determining that whether police coerced confession.

o YOU NEED THE HOOK

o Dissent of Brennan:- Concerned about confession’s reliability. So we are not really worried about reliability because if we did, then this case would come out otherwise.

Tuesday 11/25/03

v Colorado v. Connley- We need some police action (hook) in order to have Due process voluntary claim, AND, the Miranda claim

v Chavez v. Martinez- Supplement- Chavez is riding on his bike, they stop and engage in Terry stop & Frisk. There is scruffle, one officer shouts he got my gun and is shot. On way to hospital, accompanied by police officer. Officer questions Martinez. No Miranda violation. Martinez brings a civil suit alleging that his statements constituted Miranda violations. Pluraility say that you can’t bring this claim, because 5^th Amendment says that you can’t be a witness against yourself in a criminal proceeding. In this case, never charged with anything. This is a flipside of Connley because there is some coercion.

v SO THIS SHOWS THAT TO HAVE COERCION, YOU HAVE TO SHoW that it will be used somewhere against you. You don’t have a floating 5^th Amendment right. In Martinez, there was no criminal proceeding.

v ENTRAPMENT

o Professor Referred to : WHITE, PERKINS & MASSIAH.

o What can ∆ do if no Massiah like claim? Can use entrapment.

o Problem with undercover investigation is that we might make innocent person to criminal.

o Jacobson v. US

§ Jan 1984- Bought magazine legal

§ Then later on it was made illegal. Then for the 21/2 years, government keeps sending him info about magazine. NUMEROUS CONTACTS.

§ 1987: ordered, but doesn’t receive.

§ Then orders and receives and then arrested.

§ What does gov. have to prove? GOVERNMENT has to show that was Jacobson predisposed to commit this crime. What point do we look at? When the government first contacts him.

§ SC is adopting a subjective test. What is subjective testà WAS ∆ PREDISPOSED TO IT!

§ Objective Test: would these inducements cause law abiding citizen to commit the crime.

§ What if in Jacobson, it’s not the FBI? YOU NEED SOME SORT OF POLICE ACTION.

§ In ordinary criminal law, we don’t care why you did it.

o There is also the doctrine of outrageous government conduct. Due process entrapment defense. Was the government conduct so outrageous that it is a violation of ∆’s due process phrase?

o Is paying informants to provide tips outrageous? Some courts say yes, some don’t

Monday 12/1/03

v Now going to see what happens after: talk about plea bargaining

o 90% cases get solved by plea bargaining

o Background:

§ We really have a lawyerization of criminal process. So everything is really expensive so greater incentive to plea bargain.

§ At common law, jury trial was summary process. But now it is different. Jury selection. That raises expenses so more incentive to plea bargain.

§ Prosecutor’s discretion over sentencing

· Determinative sentencing schemeè there is a grid that shows crime vs. criminal history= determines punishment. So charge becomes really important. So by picking the charge, prosecutor has a lot of power.

§ Once you introduce lawyers into the system, plea bargaining becomes inevitable. All lawyers can’t possibly ask for a trial.

v North Carolina v. Alford: ∆ pleads because afraid of death penalty if went to trial.

o ∆ maintains that he is innocent

o He is saying that plea not voluntary because he didn’t admit that he was guiltyà this is due process claim. 14^thà applies to states. 5^th Amendment applies to states

o There is some but4 causation. Court rejects this argument. So why is it ok to accept this pleaà

§ There appears to be some strong factual basis for guilt.

· ∆’s plea is no contest pleaà ∆ just saying that he doesn’t contest anything but not really admitting that he is guilty. Ct. says doesn’t really matter if no contest plea or guilty plea.

§ What are you giving up

· Right to trial, etc.

o A lot of judges are reluctant to give pleas when ∆ thinks he is innocent.

o NARROW RULING: This case is just saying that just because you think that you are innocent doesn’t mean that the plea is involuntary.

o IN ORDER TO HAVE PLEA, THE PROSECUTION HAS TO HAVE A CASE. BUT WHAT STANDARD? 50%??

v Brady v. United States

o ∆ enters plea bargaining. Initially said not pleading guilty. But then situation turns out worse and pleads guilty.

o ∆ saying involuntary and since federal crimeà Violation of 5^th Amendment.

o This case is BEFORE ALFORD: this court says that guilty plea represent: ∆ consents that judgement of conviction may be entered without trial. AND admission of guilt (BUT LATER ALFORD TAKES IT OUT)

o Mutuality advantage: ∆ gets lesser sentence, state gets to save money and time

o Court makes an analogy to the law of confession: when we have confessions we defense council can come to the aid of ∆. Similarly here, ∆ relied on the advice of his lawyer.

o ∆ pleads guilty because of fear of death penalty, but death penalty doesn’t apply. But court says that voluntariness doesn’t mean that ∆ has to be 100% correct in the factors upon which he relied when he plead guilty.

o What if Brady comes out the other way because his lawyer comes out wrong? Then state wouldn’t be as likely to enter plea bargains.

v So what really is involuntary: prosecutor said that he was going to punch me

v 3 important aspects trial ct. has to look at

o has to be voluntary- no coercive threats, no serious misrepresentations (doesn’t mean threat in the form of you might face trial in a serious sentence)

o has to be some factual basis for the plea

o ct. requires that his plea must be knowing- YOU HAVE TO KNOW WHAT YOU ARE GIVING UP!

v 3 kinds of litigation re guilty plea

o whether plea is involuntary?

o Plea bargain is in essence a K- breach by ∆ or state

Dec. 2

v US v. Banks (Review)

o Police have a warrant to arrest ∆ for cocaine. Knock on the door, no answer. Wait for 15-20 seconds. After hearing no answer, knock down the door. ∆ in shower and arrest him. 9^th circuit said that 15-20 seconds is not reasonable. In 9-0 ruling, supreme court said this period of time was enough sufficient for ∆ to flush down cocaine. This is not going to work for everything (e.g. piano) case-by-case reasonable analysis.

o ∆ said that 15 seconds wasn’t enough for me to get out of shower. Court said this was not a valid inquiry because 15 seconds enough for destruction of cocaine.

v Back to guilty pleas

o Plea bargain is a kind of a K.

o Santobello v. NY

§ Gov agreed to make no recommendation on a sentence. But then they make a recommendation. When plea rests in any significant degree on promise or agreement of prosecutor, so that part of inducement or consideration, such promise must be fulfilled.

§ Supreme Court left it up to state trial court to look for remedies. Can go back to the plea sentencing or recission.

§ So rescission or specific performance.

§ Santobello relies on Due Process. If you look at the case, it looks more like a K law analysis than a constitutional law analysis.

o Mabry v. Johnson

§ Initial promise made 21 years concurrently. ∆ said YES. Then the Prosecution withdraw. 21 yrs. consecutively and ∆ accepts.

§ What is funny: in K law, when make promisesà ENFORCEABLE K. But here ∆ doesn’t get relief. Court says that no detrimental reliance.

§ So why do we have this type of a rule? What we have here is some kind of reciprocity. SO if ∆ initially agrees to plea guilty, he will be forced to plea guilt.

§ Since ∆ not detrimentally rely, no due process violation

Thursday LAST FREKIN DAY

v Today talking about where the victim fits in

o In Payne, SC said that you can use some sort of victim evidence. Victim rights movement is a big role in today’s criminal justice legislation.

o IN Payne OVERRULES BOOTH V. MARYLAND.

o Should these statements be used at all?

o Even if have VIS (victim impact statement) can it rationally?

§ What is role of emotion?

§ Difference between goal of rule and reality of having rule.

v Exam on Tuesday

o Limited open book 31/2 hoursà

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[1] Gravity of the crime is a major factor to consider.

[2] How long a ∆ has to stay in one’s house in order to be considered a co-resident and not a guest.

[3] Court defined this as a close case and focused on the fact that informant was able to predict some future behavior.

[4] Remember, Miranda Warnings alone cannot take away the taint. Have to consider the whole picture.