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CRIMINAL PROCEDURE
JUDICIAL POVERTY: MONEY MAKES A DIFFERENCE.WHEN THE DEFENDANT HAS MORE RESOURCES THAN THE
GOVT. TRYING THE CASE THEN THE SYSTEM IS REVERSED (OJ CASE #1). MONEY THEN MAKES THE JUDICIAL
SYSTEM BIASED.
CAPITAL PUNISHMENT: INNOCENT PEOPLE ARE BEING KILLED, BUT HOW MANY IS TOO MANY. THE REASONS THE
WRONG PEOPLE ARE BEING CONVICTED ARE:
-WRONGFUL CONFESSION
-MISIDENTIFICATION BORE
-PERJURY (POLICEMAN
THE AMENDMENTS:
4TH: SEARCH &SEIZURE:The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
5TH: TRIAL & PUNISHMENT:No person shall be held to answer for a capital, or otherwise infamous crime
unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law . . .
6TH: RIGHT TO SPEEDY TRIAL;CONFRONTATION OF WITNESSES: In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
THE RIGHT TO COUNSEL:
1. Legal Regulation of the Criminal Justice Process
a. Steps in Process
i. Pre-Arrest Investigationii. Arrest
iii. Booking
iv. Post-Arrest Investigation
v. Decision to Charge
vi. Filing the Complaint
vii.Magistrate Review of Arrest
viii.First Appearance
ix. Preliminary Hearing
x. Grand Jury Review
xi. Filing of the Indictment or Informationxii.Arraignment on the Information or Indictment
xiii.Pretrial Motions
xiv.Guilty Plea Negotiation and Acceptance
xv.The Trial
xvi.Sentencing
xvii.Appeals
xviii.Collateral Remedies
b. Diversity in Legal Regulation
i. 52 lawmaking jurisdictions
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ii. The Unifying role of federal constitutional regulation
iii. Natural divergence
iv. Describing common patterns
v. Models
vi. Procedural subsets
c. Diversity in Administration
i. Significance of discretion
ii. Discretion and diversity
2. Sources of Criminal Procedural Law
3. Ordered Liberty, Fundamental Fairness, Total Incorporation and
Selective Incorporation (p. 24)
Twining v New Jersey (p. 24) 1908
State ct prosecutor said jury may draw unfavorable inference from defs failure to testify.
5th amendment: right to silence, cannot be looked upon unfavorably, gov cant comment on failure to
testify or failure to talk when arrested.
ct held privi and imm clause does not incorporate bill of rights, and due process also does not require 5th
amendment apply to people in state courts, not immutable principle of justice.
Powell v Alabama (p. 25) 1932
Duncan v Louisiana (p. 25 and p. 1349) 1968Right to jury trial for serious criminal offensesMaximum punishment was 2 years in prison; no entitlement to a jury trial; misdemeanorSelective incorporation right to jury trial; Incorporate that which is fundamentalHELD: The 14A guarantees a right to a jury trial in all criminal cases which were they to be tried in a federal court would
come within the 6As guarantee.Rationale:years in prison is serious and not pettyDeep commitment of the Nation to a right of jury trial in serious criminal casesProvides protection from the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.
J. Blacks concurrenceStill believes in wholesale incorporation, but will accept selective incorporation
J. Fortass concurrenceNot incorporating all the rights, but just limiting this to a jury trial
J. Harlans dissentWhats the principle here?Lack of fundamental unfairness, so why go with selective incorporation? It is or it isnt.However, SI at least limits the run free, run wild risks of natural lawThe key compromise that still exists today
AlternativesFrankfurter vision of ordered libertyWholesale incorporation everything comes in, no matter the relative importanceSelective incorporationUse sort of natural law, but it didnt begin overnight; presume that the BOR reflect natural law; presumptively view the BORas within the accepted notion of justice; rebuttable presumption
a. The Problem of Bodily Extractions, another look at the due process and selective
incorporation approaches
i. Rochin v California (p. 31) 1952
ii. Police enforced stomach pumping to recover morphine capsules from Rochin. (Shocks the
Conscience test)
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1. Compared the extraction of stomach contents to the coerced confessions that offend
the communities sense of fair play and decency.
2. The government with permission now can gather those kind of those things
a. What do I mean about permission?
i. Ask the criminal
ii. Or get a warrant
1. Probable cause to believe your blood leads to evidence to a
crime
4. Due Process Right to Technology that Might Establish Ones Innocence? (p. 3supplement)
District Attorneys Office v Osborne (p. 3 supp) 2009
a. The limit is the 14th amendment
i. Breithaupt v. Abram (1957) Blood test taken from an unconscious driver in a manslaughter
case showed alcohol level
1. Blood samples under the care of a physician and procedure has become routine in
our everyday life.
a. Schmerber v. CA
i. Upheld that a police can take a blood sample from an injured person
against him objection
2. County of Sacramento v. Lewis: police killed motorcycle passenger during
motorcycle pursuit. Used shock of conscious test and found that this action did not
shock the conscious
3. Continued application of free standing due process
ii. Dominant source of constitutional regulation of the pre-trial stages of the process
iii. A major source of constitutional regulation of the trial
iv. Held unconstitutional under deductive reasoning instead of the consistency of common law
v. Look to particular case and resting
b. The federal courts supervisory power over the administration of federal criminal justice
i. McNabb v. U.S. (1943)
1. Quickly brought before a magistrate for prosecution24hrs.
2. Or you will explain why you didnt and if you dont have an explanation and
confession you get will be out, and will be excluded.
a. US v. Payner (1980) Money Laundering in Bahamas
i. Does not authorize a federal court to exclude evidence that did not
violate defendants Fourth Amendment rights
b. US v. Hasting (1983)
c. Guantanamo Bayi. How long to hold people under due process
ii. Government has lost every case so far
iii. (Supplement Case)
iv. Habeas Corpus: produce the body and justify detention
5. 6TH Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
by an impartial jury of the State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense.
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a. Betts v. Brady (1942) Page 80
i. The court did not give the defendants lawyers and decided that they will evaluate these
cases on a case by case basis
b. Gideon v. Wainwright
i. In the case, the Supreme Court unanimously ruled that state courts are required under the
Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants
unable to afford their own attorneys or lawyers.
6.Recoupment Laws:
a.Potential for violations of equal protection
b.Recoupment (promise to pay counsel costs) may be a condition of probation, if likelihood of ability
to repay
7.The Right to Counsela.Fundamental Right: Comes from the 6th Amendment, and applies to the states via due process
clause of 14th in Gideon v. Wainwright.
i. Facts: The defendant was charged with the robbery of a poolroom. At trial he was denied
his request for appointed counsel, despite his indigence. He was convicted. The Supreme
Court held that Gideon had been denied a fair trial. The 6th Amendment, as incorporated in
the 14th amendment automatically entitles an indigent defendant to appointed counsel. At
least in felony counsel.
ii. Unqualified right to hire the counsel of your choice
b.Proceedings in Which the Right to Counsel Applies
i. Misdemeanors- In Argersinger v. Hamlin the supreme court extended the right to counsel to
all indigent misdemeanor defendants faced with a potential jail sentence.
ii. Right to counsel attaches only in cases where DEFENDANT faces possible prison
1. Scott. v. Illinois: HOWEVER, the right only reinforced if imprisonment results; EX
if DEFENDANT sentenced to probation, then no atty required, even though prison
was potential
2. Nichols v. US: THEN, an uncounseled conviction may be relied upon to enhancesentence under a later conviction, even if result is prison. Overrules Baldasar.
iii.Suspended jail sentences or probation: NEW DOCTRINE: indigent DEFENDAN
without counsel may not receive suspended jail sentence or probation. Alabama v. Shelton
c. Right to counsel when adversary judicial proceedings commence AND case is at a critical
stage:
i. Initial Appearance: right to counsel applies before magistrate1. White v. Maryland initial appearance is a critical stage of the proceedings, and
requires the appointment of counsel, if the defendant is compelled to make a
decision which may later be formally used against him.
a. Even if the defendant is not compelled at the initial appearance to makedecisions which may be formally used against him at trial, there is still a
possibility that he may in particular circumstances have a right to appointed
counsel.
ii. Preliminary Hearings: Coleman v. Alabama denial of right to counsel at the preliminary
hearing was a violation of the accuseds 6th amendments rights, because the hearing was a
critical stage of the prosecution.
iii. Arraignment: critical stage requiring counsel, but the denial of counsel is harmless error
as long as the defendant is not required to bind himself in anyway.
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iv. Sentencing: a delayed sentencing hearing was a critical stage of criminal proceedings
requiring the right of attorney
1. NOT at a line-up (before proceedings begin) 5th amendment right against self-
incrimination?
2. NOT at a photo array (even after proceedings begin, b/c not critical)
3. NOT when prime suspect
4. NOT by virtue of simple detention (administrative detention of a prisoner does not
activate; generally, the right is activated by forces that jeopardize the privilege
against self-incrimination)
8.EQUALIZING DEFENDANTS
a.Court Expenses/Processes
i. There can be no equal justice where the kind of trial a man gets depends on the money
he has.
ii. Griffin-Douglas Principle: The equal protection
1. Griffin: The S.C. held that a state must provide a free transcript of the trial
proceedings when submission of a transcript is a prerequisite to appeal.
a. Transcript necessary for appeal:
i. States are not required to provide all forms of appellate review, but a
free transcript is necessary to equal access when the do
ii. Free transcript is necessary in all cases, even non-felonies
2. Douglas: The Griffin principle of equal protection was held to require tha
counsel be appointed to assist indigent defendants in preparing the first appeal
from a conviction, at least where the first appeal is available as a matter of righ
in every convicted defendant.
a. Counsel on Appeal: If DEFENDANT has a direct appeal right, he has a
right to counsel for this appeal;
b. Ross v. Moffitt: The Supreme Court adopted a narrow view of Griffin-
Douglas in holding that an indigent does not have a right to appointedcounsel on his applications for discretionary review by the state supreme
court or on his petition for cert. by the us supreme court. Said that the
appeal is rejected or accepted based on likelihood that the original
determination of guilt was wrong.
i. a discretionary appeal, in particular one where the transcript and
brief were already filed in court below, NO right to attorney o
assistance with the app
ii. No right to appeal when discretionary appeal from plea of guilty.
c. DUE PROCESS & EQUAL PROTECTION are implicated when the right to
appeal exists but is not meaningful, as a result of an overly complex appealprocess
3. Expert Services: Fundamental fairness entitles indigent Defendants to adequate
opportunity to present claims fairly, thus state must provide basic tools of adequate
defense
a. Ake v. Oklahoma: two instances when the defendant has the right to a
psychiatrists assistance at state expense: (1) when he makes a preliminary
showing that his sanity is likely to be a significant factor in his defense, (2)
when in a capital sentencing proceeding, the state tries to justify the death
penalty by showing that the defendant is likely to remain dangerous.
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b. Due process requires access to psychiatric evaluation when:
i. Preliminary showing by DEFENDANT that sanity at time of offense
is likely to be a significant factor; or,
ii. In capital cases, presents evidence of future dangerousness.
4. Conflicting Obligations on Appellate Counsel:a. If counsel finds a case wholly frivolous, he should advise the court with a
request to withdraw along with a brief referring to anything in the record
that might arguably support an appeal
i. Anders brief must include discussion of why appeal is meritless
ii. States may adopt different appellate procedures, as long as right to
appellate counsel is preserved and indigent appeal is resolved in a
way that relates to the merits of the appeal
5. OTHERPROCEEDINGS
a. Probation Revocations No unqualified right to counsel:i. Factual inquiry as to whether violated terms = lawyer;
1. Case-by-case approach, usually no counsel needed unless
defendant present a timely and colorable claim that:
a. He did not commit the violation
b. There aremitigatin circumstances making revocation
inappropriate.
ii. Simple question of whether probation should be revoked = no
lawyer.
b. Summary Courts-Martial: No right to appointed counsel, even though
presiding can impose 30 days hard labor
c. Parenting Termination: No unqualified right state courts may determine
on case-by-case basis
d. Collateral Attack: No constitutional right to counsel in post-convictionproceedings
e. Juveniles: always have right to counsel
f. Military: minor no; major, yes
9.WAIVING THE RIGHT
a.Faretta v. California: DEFENDANT must be free to decide: DEFENDANT has a right to
proceed pro se
i. A criminal defendant in a state proceeding has a constitutional right to knowingly &
intelligently refuse the aid of an attorney.
ii. HOWEVER, no clear right on appeal (state interest in measuring integrity of convictions)
1. Martinez v. Court of Appeals of California, says that proceed pro se right is notabsolute and you cannot claim ineffective assistance of counsel if you waived
counsel
b. Stand-by counsel:NOT a violation of 6th right
i. Mckaskle v. Wiggins: Serves interest of orderly proceeding, b/c atty can educate
DEFENDANT as to protocol and routine obstacles
c.Knowing, Voluntary & Intelligent: Iowa v. Tovari. STANDARD: Judge must inform DEFENDANT of:
1. Nature of charges against him;
2. Right to counsel regarding plea; AND,
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3. Range of punishments if pleads guilty.
a. Judge does NOT need to foresee and warn of ALL future consequences
(such as three-strikes on first offense)
b. Collateral attack: if defendant wants to attack the fact that he waived
counsel he must prove that he was unaware of one of the above things.
d.Required Level of Competency:i. No requirement of different/higher standard of competency than that for trial standing
ii. sufficient present ability to consult with a lawyer with a reasonable degree of rational
understanding
ii. has a rational as well as functional understanding of the proceedings against him
e.Can forfeit counsel if defendant assaults counsel or assures judge he will retain counsel and doesnt
in a reasonable amount of time.
10.CHOOSING COUNSEL
a.Appointed: Indigent DEFENDANT has NO right to choose his counseli. NO 6th right to meaningful relationship
b.Retained: Courts cannot disqualify chosen counsel without a good reason
i. Denial in violation of 6th is a structural error (thus, automatic reversal)
ii. The right does NOT cover the use of otherwise forfeitable funds to hire atty
11.DECISION-MAKING
a.Defendants Decisions: Fundamental rights:i. DEFENDANT must decide: plead guilty, waive right to jury trial, waive right to be present
at trial, testify on his own behalf, or forgo an appeal
ii. No right to compel counsel to raise every nonfrivolous issue
iii. Counsel not required to file notice of appeal unless specifically directed to
b.Counsels Decisions: Superior ability of trained counsel in assessing strategy:
i. COUNSEL has ultimate authority in deciding: barring prosecution form using
unconstitutionally barred evidence; obtaining a dismissal; wearing civilian rather than jail
clothes; striking an improper jury instruction, etc.ii. Strategic decisions rest within counsels professional judgment and include the methods to
utilize for a vigorous and effective advocacy
iii. Appellate counsel may decide which nonfrivolous issues to raise, as a strategic decision
iv. Nixon v. Florida: Strategy pursued without DEFENDANT approval is never per s
ineffective; even though counsel conceded DEFENDANTs guilt to the jury, this was part
of a trial strategy aimed at sentencing mitigation.
v. Roe v. Flores-Ortega: Counsels failure to file an appeal as of right when defendant had
requested one would constitute per se ineffective assistance of counsel. Since there was a
guilty plea entered here, it could signal to the client that they wanted the judicia
proceeding to be over.12.EFFECTIVE ASSISTANCE
a.6th Amendment:i. Constitutional right to effective assistance of counsel; thus, conviction subject to reversal
if incompetence negates effectiveness
ii. On appeal, right to effective ONLY ifrightto appeal; thus, no right on discretionary
iii. Courts must apply one standard for both retained and appointed counsel
b.Strickland v. Washington Two-Part Test:i. Deficient performance of counsel such that it did not qualify as counsel; AND,
ii. The deficient performance prejudiced the defense.
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1. Did the lawyers behavior fall below the expected behavior of the average lawyer
in the jurisdiction?
iii. The Test, Re-Stated: Performance must be deficient, and must have prejudiced
Defendant so much as to have deprived of right to fair trial
1. STANDARD: reasonably competent attorney
2. Venue: This seems to be raised as a habeas issue in many cases
c.Deficient Performance:i. Perjury: Refuse to cooperate with perjury = NOT ineffective
1. Nix v. Whiteside: counsel told defendant that perjurying himself would lead
counsel to withdraw, to require counsel to advise the trial court of the perjury, and
that counsel would probably be allowed to impeach that testimony.
ii. Suppression: Failure to file timely motion re evidence obtained in violation of 4th
amendment. Court said that was a startling failure of professional responsibility.
1. Kimmelman v. Morrison: Did not ask for pre-trial discovery
iii. Strategic Decisions:
1. Yaraborough v. Gentry: presented a federal habeas corpus challenge to alleged
ineffective assistance of counsel due to closing argument
2. State court determination as to performance may only be reversed if objectively
unreasonable.
3. If a state court rejects an ineffective-assistance claim, a federal court may reverse
this only if the decision was "objectively unreasonable." The right to effective
assistance of counsel "is denied when a defense attorney's performance falls
below an objective standard of reasonableness." While Gentry's lawyer "was no
Aristotle," the federal judiciary must respect the state court's reasonable
conclusion that the lawyer was sufficient.
iii. State v. Davis: Remarks about racial prejudice in closing argument were
objectively unreasonable. Maybe not the best lawyer for a black guy?
i. To a white jury I do not like black people but urge you to not letrace become a factor.
iv. Duty to Investigate: Rompilla v. Beard
1. In capital case, must investigate mitigating factors; however, decision to use
would be strategic.
iii. Family told counsel that they didnt know why defendant would have
committed the crime (they thought he was innocent).
2. Failure to take standard investigative step (in capital case) wasper se deficient
3. Failure to examine prior conviction file (where mitigating evidence would have
been found) was deficient.
d.Prejudice:i. Defining Prejudice: there is a reasonable probability that but for counsels
unprofessional errors, the result of the proceeding would have been different.
ii. Timely Exclusion: DEFENDANT should be able to use federal habeas to repair failure
to timely request exclusion. (Kimmelman)
1. Illegally seized evidence is often highly reliable and probative, and thus deserves
heightened attention
iii. Evidence of youth, inexperience and insufficient time did not meet standard, where no
showing ofactualprejudice
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1. HOWEVER: a sufficiently atrocious performance by counsel may warrant
presumption of prejudice . . .
2. . . . sleeping through trial
3. . . . failure at sentencing to call witnesses, provide mitigating evidence or make
closing argument
iv. Exceptions: Strickland analysis not the best choice if:1. Trial court prevented counsel from utilizing certain adversarial procedures; or,
2. Counsel burdened by an actual conflict of interest.
v. Institutional Defects bypass deficiency andprejudice:
1. Public defender with too-heavy caseload and insufficient resources to match could
not provide effective assistance
2. Attorney that allocates resources to clients passing polygraph = ineffective
3. Least experienced attys should not be assigned to capital cases
e.CONFLICT OF INTEREST: action taken on behalf of the defendant would work against an
obligation the attorney owes to another person or the attorneys self interest.
i. Examples:
1. Joint representation of codefendants who will be tried separately;
2. Defense counsel has previously represented or is currently representing in another
matter the victim of the alleged offense
ii. Trial Courts Obligation: Upon Motion of DEFENDANT (Holloway v. Arkansas):
1. Failure to investigate the risk of conflict upon counsels statement of conflict
denies effective assistance and violates the 6th amendment. Counsel also
requested separate counsel for defendants.
2. Sua Sponte: Unless court knows or reasonably should know that a particular
conflict exists, no duty to initiate inquiry
iii. If the possibility of conflict is reasonably apparent to the court, it has duty
to inquire
iv. If the defendants have been jointly charged or their trials have been joinedtogether, the court should inquire into a conflict of interest.
3. Scope of the inquiry:should not be perfunctory but should include probing and
specific questions.
iii. Post-Conviction Review: STANDARD (Mickens v. Taylor):1. Presence of actual conflict; and,
2. Adverse impact on counsels performance.
iii. Reasonable probability that but for counsels unprofessional errors, the
result of the proceeding would have been different.
iv. Examples:
i. Burger v. Kemp: Even if law partners are considered one attyshared representation is not aper se violation.
1. Two defendants, tow lawyers from the same firm. Each
defendant confesses but admits majority of culpability to
the other defendant. One of the lawyers prepares both
mens appellate briefs, but only argues lesser culpability in
one brief. Not per se violation. Court presumes prejudice
only if the defendant demonstrates that counsel actively
represented conflicting interests and that an actually
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conflict of interest adversely affected his lawyers
performance.
ii. Certainflagrantconflicts, such as atty engaging in clients crimina
acts, raise presumption of adverse impact (U.S. v. Fulton).
1. When attorney has engaged in the defendants crimes.
iv. Waiver: 6th right allows DEFENDANT to waive right to conflict-free counsel, in favor of
choice of counsel Wheat v. US
1. So long as there is a reasonable possibility of a conflict, the court may prohibit the
same lawyer from representing two or more defendants, without violating the 6 th
amendment rights of the defendant who loses access to his first choice.
ARREST,SEARCH &SEIZURE:
1. Exclusionary Rule
a. All evidence obtained by searches and seizures, in violation of the Constitution, is (per 4th/15th)
inadmissible in state court and federal court (Mapp v. Ohio).
b. HOWEVER: evidence obtained by police in reasonable reliance on a search warrant issued by a
neutral magistrate will still be admitted. (US v. Leon)
i. As long as the person writing the affidavit wrote it in good faith, the decision is that of the
magistrate and the exclusionary rule serves no useful function. The officers enforcing the
warrant must be able to rely on the decision of the magistrate.
c. Principles To Be Protected:
i. Exclusionary rule did NOT require suppression of evidence obtained in a badly executed
knock-and-announce
ii. Purpose of exclusionary rule must be considered since the purposes of the knock-and-
announce rule do not connect to the evidence seizures that result, no constitutional interest
is served by suppression
d.Reasonable Reliance: On the warrant itself . . .
i. Failure to name the items to be seized with particularity, if reasonably relied upon, may
still be admissible because the officer should not be held to not believe a judge who saysa warrant is good.
1. HOWEVER: where the warrant is so obviously invalid that a reasonable officer
should have known it was invalid.
ii. If police arrested or seized property on invalid search warrant, then defendant files and
1983, but the problem becomes what is it worth?
e. Knock and Announce Rule when the police enter a private dwelling to execute a search warrant
they must knock and announce.
i. They must knock first, announce that they are the police, and wait until the person answers
the door.
ii. Hudson v. Michigan: even if the defendant can show that certain evidence would not havebeen acquired by the police but for their failure to wait for the door ti be answered, the
evidence will still be admissible against him.
f.On statutes and regulations . . .i. objectively reasonable reliance on statutes = admissible
ii. Suppression is NOT a remedy for simple illegality a violation of IRS regs
g.Pre-Trial & Post-Conviction:
i. Grand jury witness may not refuse questions based on unlawfully-obtained evidence
ii. Exclusionary rule does NOT apply during a parole revocation hearing
h.Civil & Quasi-Criminal:
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i. Exclusionary rule DOES apply during a forfeiture hearing, which is quasi-criminal
especially if based on alleged criminal activity
ii. Exclusionary rule does NOT apply during civil case brought by another sovereign
iii. Exclusionary rule does NOT apply during civil deportation hearings
i.Third Party Conduct:
i. Private persons: police may view and inspect what a private party has already unlawfully
searched/seized
ii. Non-police govt employees: mistake by a court employee is not the evil that exclusion
protects against thus, reliance on warrant (mistakenly allowed to stand) was reasonable
here
iii. Foreign officials: deported alien felons who re-enter U.S. are not covered by 4th; thus
evidence from country of origin, though illegally obtained by authorities there, is
admissible here???
2.PROTECTED INTERESTSa.Katz v. United States: established that the 4th protects people, not places, from unreasonable
intrusion
i. STANDARD: Reasonable expectation of privacy.
1. So long as an individual can justifiably expect that his conversation would remain
private, his/her conversation is protected from "unreasonable search and seizure" by
the Fourth Amendment.
ii. HOWEVER: something about nexus of property being tied to the crime
iii. AND: warrants may be executed against innocent 3rd parties
b.People & Places:
i. Public Places:
1. Individual on a pay phone has similar expectation of privacy as user on phone
number
2. Open fields are still probably fair game
3. Distance surveillance of a greenhouse OKii. Private Areas of Public Places:
1. Observation through an air shaft into restroom stall NOT okay
2. Prison cell = no expectation of privacy (Hudson v. Palmer)
iii. Chattels:
1. Vehicles:
i. Paint sample taken from a car, after car was already seized, was NOT a
search (Caldwell v. Lewis)
ii. Looking at a VIN or other thing inside car is not a search; HOWEVER
reaching in to clear obstacle to officers view = a search (New York v. Class)
2. Bags & Briefcases: Manipulation of luggage was 4th
violation, that by feeling hisluggage, the police searched it on the bus and that kind of inspection is more
intrusive then a purely visual inspection.
iv. Restrictions/Exceptions:1. Hearing something nearby is NOT a search
2. Thermal imaging of a residence while the police may use ordinary, non-intrusive
sense enhancement, a device not available to the public is a 4 th search, and requires
a warrant (Kyllo v. US).
3. Aerial or long-distance photography are not intrusive, b/c they do not reveal
anything that could not otherwise be seen.
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v. Canine Sniff: of luggage in a public space was NOT a search (US v. Place)
1. Sniff search of vehicle during traffic stop was NOT a search (Illinois v. Caballes)
vi. Devices: Police may use electronic tracking device if placed in goods sold during a sting
operation (US v. Knotts). Police can use any device that can give them information that
they can get without the device.
1. If installed with consent of owner, no privacy infringement.
2. However, in some circumstances (???), monitoring the beeper will be an
unreasonable search, b/c it reveals information that could not have been revealed
through visual surveillance.
vii.Computers: Person who transmits e-mail enjoys reasonable expectation of privacy thus
warrant required (or help from recipient)
c.Documents/Records:Andresen v. Maryland
i. Business records 5th may be employed to prevent accused from cooperating and turning
evidence over, but will not prevent a lawful search for his records
1. which held that search of petitioner's offices for business records, their seizure, and
subsequent introduction into evidence did not offend the Fifth Amendment's
proscription that [n]o person shall be compelled in any criminal case to be a
witness against himself. Although the records seized contained statements that
petitioner voluntarily had committed to writing, he was never required to say
anything.
ii. Records may be seized even though the holder is an innocent third party
1. NOTE: if documents cannot be taken without examining the contents of unseizable
documents, officers should seize the lot and wait for proper procedure to be
determined
2. Colorado court held (2002) that an innocent, third-party bookstore must get hearing
before forced to turn over all purchasing records; PATRIOT of 2001 permitted such
seizures on the word of an agent; however, PATRIOT re-auth created a judicial
review and more procedural protection before the seizure may take place.3. PROBABLE CAUSE
a.judicial guideline set down by the U.S. Supreme Court for evaluating the validity of a search warrant
based on information provided by a confidential informant or an anonymous tip. The Supreme
Court abandoned the Aguilar-Spinelli test in Illinois v. Gates, 462 U.S. 213 (1983), in favor of a
rule that evaluates the reliability of the information under the "totality of the circumstances."
However, Massachusetts, New York, Tennessee, and Washington have retained theAguilar-Spinell
test, based on their own state constitutions.The two prongs of the test are that, when law enforcement seeks a search warrant and a magistrate signs a warrant
The magistrate must be informed of the reasons to support the conclusion that such an informant is reliableand credible.
The magistrate must be informed of some of the underlying circumstances relied on by the personproviding the information. [1]
This information provided to a magistrate will allow the magistrate to make an independentevaluation of theprobable cause that a crime has been or will be committed.
police must state sufficient facts of which they have actual knowledge or information from a reliable source
b.Probable cause to arrest:
i. must have reasonable grounds to believe that a crime has been committed by the person to
be arrested
1. finding contraband in an automobile, there is probable cause to arrest its occupants,
regardless of their proximity from the contraband
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2. information/orders received through official channels can NOT create probable
cause, where the issuing authority lacked probable cause originally
c.Probable cause to search:i. must have reasonable grounds to believe that the items sought are connected with criminal
activity and that they items will befound in the place to be searched
1. Warranted Searches:
i. the totality of the circumstances should be considered to determine whether
there is a fair probability that contraband will be found in a particular place
i. an informers veracity, reliability, and basis of knowledge are all
highly relevant, but not exclusive or mandatory, factors in evaluating
the totality of the circumstances (Massachusetts v. Upton).
ii. deference to magistrates (support the magistrates determination that
there was a fair probability that contraband or evidence of crime
would be found in Defendants motor home)
ii. anticipatory searches are okay (warrant authorized for later search after
triggering event) US v. Grubb:
i. Anticipatory searches are constitutional and do not need to describe
that condition on their face. In this particular decision, which arose
from a federal child pornography prosecution, the Court ruled that a
warrant that was predicated on the undercover delivery of a
videotape to the defendant's home, but did not state this on its face,
was properly issued and executed because it described the place to
be searched and the objects to be seized, and the search was
conducted after the delivery was made.
1. search is subject to challenge if a false statement was
necessary to the probable cause determination, but
DEFENDANT must prove untrue
2. Warrantless Searches:i. Probable cause is also required for warrantless
i. Maryland v. Pringle: (p. 5 table contents)
4.SEARCH WARRANTSa.ARREST WARRANT: clerk may issue, b/c judicial review occurs quickly upon arrest
b.SEARCH WARRANT: must be prepared by trained lawyer, and describe with particularity things
and place to be searched, so that issuer can evaluate probable cause
i. Authority: Cannot be issued by investigator or prosecutor must be issued by a neutral
and detached magistrate
1. Magistrate cannot be paid by the warrant or offered other incentives
ii. Particulars: Sufficiency of the description: officer with a search warrant can, withreasonable effort, ascertain and identify the place intended,
iii. Steele v. US.
i. If one can reasonably tell from outside a structure that it contains multiple
residences, warrant must describe the particular one to be searched
(standard: objectively reasonable) State v. Blackburn
ii. Particularity of description must be incorporated in the warrant, not in
supporting affidavit, Groh v. Ramirez
iv. Execution:1. Timing: Must be executed promptly (usually 10 days at most)
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i. Generally, should be executed during the day, unless specified in warrant
ii. Night search only requires showing that property to be seized is likely to be
on premises at that time
iii. Absence of occupant is not a factor, U.S. v. Gervato
2. Entry: In order to justify entry without knock and announce, police must have
reasonable suspicion that to do so would be dangerous, futile or inhibit
investigation,
i. However, the reasonable suspicion test is NOT affected by unavoidable
destruction of property as part of entry
ii. Police may then break in IF occupants failure to let them in fairly suggests
refusal (consider: time to get to door, nature of establishment)
3. Safety: If warrant does not permit searches of persons found on premises, then treat
these as warrantless
i. Detention while waiting for warrant is okay
ii. Okay to detain and restrain persons on premises for officer safety Michigan
v. Summers
4. Other Concerns:
i. PLAIN VIEW: While executing, anything in plain sight is fair game
Anything that is viewable in the area where the police have a right to be.
ii. COMPUTERS: may be treated as a container, so warrant must call for
containers NOT SURE, State v. Evers.
iii. Presence of media during search unconstitutional, as it is an intrusion tha
does not facilitate the search
iv. Delivery of warrant to property holder is generally a creature of state law
but must be constitutionally done
v. The search ends when warranted items are found
5.WARRANTLESS ARREST &SEARCH
a.Arrest Standard: Arrest warrants are seldom used and are generally held to not be constitutionallyrequired. This is true even when the police have sufficient advance notice so that procurement of a
warrant would not jeopardize the arrest. US v. Watson
i. Misdemeanor: arrest if officer observes the commission of the crime. Atwater v. City of
Lago Vista
ii. Felony: arrest if probable cause
iii. PRETEXTUAL STOP: not a problem, esp. when breaking traffic law
b.Deadly Force: ONLY if probable cause to believe that the suspect posses a significant threat of
death or injury to the officers or others. Tennessee v. Garner
i. In all questions of force, ask whether an officers actions are objectively reasonable without
regard to intent or motivation. Graham v. Connor1. Where the police do have reason to believe that the suspect is dangerous to
themselves or others, they are entitled to use deadly force if they reasonable believe
that lesser force will not suffice. And at least where the suspect is fleeing by
driving recklessly, the police are not requires to call of the chase even if this would
reduce the danger. Scott v. Harris
c.Magisterial Review: Must occur within 48 hours (except in genuine emergency) Gerstein v. Pugh
i. Once a suspect is in custody, however, there is no further justification for dispensing with a
magistrates neutral judgment.
d.Post-Arrest Searches:
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i. Always permissible to search an individual during arrest, even if arrest is for an offense
which bears no jail time possibility.
1. A police officer pulled over and arresting Robinson for operating an automobile
without a valid permit. The officer then frisked Robinson and discovered a
crumpled cigarette package containing fourteen vials of heroin in his pocket. US v
Robinson
2.When returning to police facility, okay to search Ds entire person and seized
property (protect from theft and discover dangers)
i. Once an accused has been lawfully arrested and is in custody, the effects in
his possession at the place of detention that were subject to search at the
time and place of arrest may lawfully be searched and seized without a
warrant even after a substantial time lapse between the arrest and later
administrative processing, on the one hand, and the taking of the property
for use as evidence, on the other. US v. Edwards
ii. Delay in full search okay, as police were waiting for substitute clothing
ii. BLOOD TEST: permitted, b/c interest in preserving evidence, alcohol diminishes in blood
quickly, outweighed intrusion. Winston v. Lee
iii. SURGERY: to retrieve evidence swallowed was NOT reasonable search. Should be
conducted on a case by case basis, in which the individuals interests in privacy and
security are weighed against societys interests in conducting the procedure. Winston v. Lee
iv. Full search of vehicle was NOT okay, where no custodial arrest. Officer could has done a
custodial arrest but chose to issue a citation. Then chose to search the car, where the office
found drugs. The concerns for searching after an arrest do not apply.
1. No threat to officer safety following a traffic citation
2. No need preserve and discover evidence when there is no likelihood that speeding
will continue.
v. Limited search of person (fingernail scrapings) okay, where probable cause to arrest exists
but no arrest made. Suspect voluntarily came to police station to answer questions abouwifes strangulation and had what appeared to be blood under his finger nails. Is
constitutional. Cupp v. Murphy
e.PREMISES SEARCH
i. Search incident to a lawful arrest - search in an arrestee's home beyond arrestee's
person and the area within his immediate control is unreasonable. Chimel
1. The Court reasoned that searches "incident to arrest" are limited to the area within
the immediate control of the suspect. While police could reasonably search and
seize evidence on or around the arrestee's person, they were prohibited from
rummaging through the entire house without a search warrant. The Court
emphasized the importance of warrants and probable cause as necessary bulwarksagainst government abuse. Chimel v. California
i. a search is incident to arrest only if it is substantially contemporaneous with
the arrest and is confined to the immediate vicinity of the arrest
ii. where there are no exigent circumstances, it is unconstitutional to search a
home without warrant during arrest
iii. thorizes arrest in home or public does NOT authorize entry into third partys
home
2. Officer Safety:
i. Protective Sweep: MUST be contemporaneous to arrest
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i. May extend only to cursory inspection of where person may be
found, and ONLY as long as necessary to dispel reasonable suspicion
of danger. Maryland v. Buie
ii. Naked Suspect: Okay to allow suspect to get dressed, and inspect drawer
with clothes for any dangers. Giacalone v. Lucas
iii. Outside: Arrest infrontof house did not authorize cops to take suspect back
inside and then search house.
i. Even ifChimel, holding that the warrantless search of a house can be
justified as incident to a lawful arrest only if confined to the area
within the arrestee's reach. Vale v. Louisiana
3. Secure Evidence:
i. Limits: Officer who moved stereo equipment, without probable cause, to
get serial numbers, while there on unrelated matter, was conducting a new
unreasonable search, outside the bounds of the arrest.Arizona v. Hicks
ii. Gravity of the arrest offense matters arresting in home for the sole purpose
of securing BAC results was unjustified. Waiting inside house with
defendants for
iii. Presence: Officer waited 19 hours in apartment to secure for warrant =
OKAY
iv. Okay to detain suspect outside residence, while waiting on warrant to search
within, to prevent suspect from destroying evidence (for a reasonable
amount of time).
i. warrantless entry into a private home in order to make a felony
arrest. The Court struck down a New York statute providing for such
warrantless entries because the Fourth Amendment draws a firm line
at the entrance to the house. Absent exigent circumstances, that
threshold may not be reasonably crossed without a warrant. The
court, however, did specify that an arrest warrant (as opposed to asearch warrant) would have sufficed for entry into the suspect's
residence if there had been reason to believe that the suspect was
within the home.Payton v. New York
4.VEHICLES &CONTAINERS
f. Probable Cause:
i. inherent mobility of autos creates exigent circumstance; less expectation of privacy
ii. auto may be subject to search without warrant solely on basis of probable cause to believe
that vehicle contains something subject to seizure
iii. includes motor homes CALIFORNIA v. CARNEY
1. The decision established that motor mobile homes may not receive the heightenedprotection from warrantless police searches to which stationary homes are entitled
Instead, motor mobile homes are more akin to automobiles, which police may
search without a warrant and with probable cause.
iv. Auto itself may be seized upon probable cause that it is itself contraband, especially
(forfeiture).Florida v. White
v. No probable cause needed to inspect packages/containers coming into country; then, i
contraband, okay to re-close and deliver, then search again
vi. Contemporaneous to Arrest: Okay to search passenger compartment whenever arresting
even though suspect is outside car.
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1. "Once an officer determines there is probable cause to make an arrest, it is
reasonable to allow officers to ensure their safety and to preserve evidence by
searching the entire passenger compartment." Thornton v. US
6. Containers:
a. Independent Probable Cause:
i. police can search a container, in a vehicle, based on probable cause that attaches to the
container, even if there is none for the vehicle as a whole.
1. the "automobile exception" to the Fourth Amendment's general search-warran
requirement is broad enough to cover a situation where the police only have
probable cause to believe there is evidence in a specific movable container within
the car. The Court noted that the warrant requirement previously had depended on a
"curious line between the search of an automobile that coincidentally turns up a
container and the search of a container that coincidentally turns up in an
automobile." In place of that uncertain distinction, the Court adopted a single rule:
"The police may search an automobile and the containers within it where they have
probable cause to believe contraband or evidence is contained. California v
Acevedo
ii. As Part of Vehicle Search: If probable cause to search vehicle, containers therein are
subject to be part of that search. Wyoming v. Houghton
1. Inventory:
i. Routine Searches: as part of routine impound procedure, always okay to
inventory
i. "Once an officer determines there is probable cause to make an
arrest, it is reasonable to allow officers to ensure their safety and to
preserve evidence by searching the entire passenger compartment."
Colorado v. Bertine
ii. if there is no inventory policy, then search of containers probably reaches
beyond (search of locked container, when no policy, was unreasonable)Florida v. Wells
7. THE "TERRY STOP"Terry v. Ohio
a. Basis: officer may conduct a Terry stop only when the officer observes unusual conduct that leads
him to reasonable suspicion, in light of his experience as a police officer, that criminal activity is
afoot and that person with whom he is dealing may be armed and dangerous
b. Standard for the Stop:
i. Assessment based on totality of circumstances + yields a particularized suspicion that this
individual is engaged in wrongdoing.
ii. ALSO: if a lawful stop already, and police have articulable suspicion that suspect may
gain control of weapon, further searching is reasonable1. Examples:
i. Conversations with addicts do not indicate criminal behavior
ii. Anonymous tip with vague description and no independent confirmation did
not have indicia of reliability
iii. Profiling is not per se violative totality of circumstances gave rise to
reasonable suspicion of criminal activity
iv. Police bulletin or other third party official information is an acceptable basis
for a Terry Stop
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4. Finding Contraband:
i. Use of drug detection dog is NOT a search, because the dog ONLY alerts on
illegal substances (thus, no privacy intrusion). Illinois v. Caballes
ii. Temporary seizure of unattached personal effects is okay, but ONLY IF the
govtl interest outweighs the minimal intrusion (90-minute luggage
detention was unreasonable). US v. Place
iii. THERE IS NO PLAIN FEEL RULE: the Terry stop is for officer safety only
finding a bag of drugs does not function as probable cause for the next.
iv. ADMINISTRATIVE ®ULATORY
1. Based on the Search Objective
i. Safety Searches: WARRANT REQUIRED to search for administrative
violations (except in emergency). Camara v. Municipal Court
ii. Border Searches: NO WARRANT NEEDED for incoming packages and
containers (the border search exception). US v. Ramsey
iii. Vehicle Checkpoints: Roving patrol may make random stops at intl border
but not inside.
i. A simple checkpoint may be okay, if uniform and slight, but an
extended detention and/or search requires individualized suspicion
beyond the Terry rationale. Almeida-Sanchez v. US
iv. Special Law Enforcement Need: Only a valid basis if sufficiently
different and divorced from general law enforcement objects
i. General canine checkpoints for illegal drugs violation of 4th
because purpose was to detect ordinary criminal acts
ii. Secret blood-testing of pregnant mothers suspected of drug use
supposedly to coerce into treatment, but still general law
enforcement purpose of arrest/prosecute
v. Based on the Individual:
i. Students: Balance between students expectation of privacy anschools need to function. Okay to search purse, after individualized,
particularized allegation by teacher.
1. Okay to require drug testing for almost any extracurricular
activity, but NOT FOR GENERAL POPULATION; upheld
for random athletic testing and random extracurr. Testing.
ii. Parollees/Probationers: System presents special needs beyond
ordinary law enforcement concerns, and justifies lower standards
1. BALANCING TEST: examine totality of circumstances and
determine reasonableness by balancing degree to which
intrudes upon individuals privacy and degree to whichnecessary for legitimate government interests. Samson v
California
vi. Employees of Critical Industries:
i. Okay to drug test employees who interdict illegal drugs or
otherwise carry firearms
ii. Okay to blood/breath/urine test employees after train accident or
certain rule violations
v. CONSENT: When the subject of a search is not in custody and the State attempts to justify a
search on the basis of his consent, the 4th and 14th Amendments require that it demonstrate
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that the consent was in fact voluntarily given, and not the result of duress or coercion
express or implied. Schneckloth v. Bustamonte
1. The Nature of Consent (Factors):
i. Voluntariness is determined by
t o t a l i t y o f c i r c u m st a n c e s
including:
ii. Implied or actual threat of incarceration;1. Even threat of parole violation, US v. Knight.
iii. Mental or emotional state of suspect (and degree to which influenced
by injury, intox, circumstance);
1. US v. Elrod shows where defendant is in emergency room
with dislocated hip, he cant give proper consent.
iv. Concurrent denials of guilt (which implies that consent may have
been involuntary, b/c suspect knew would be found out);Higgins v
US
v. STANDARD: objective reasonableness (not perception or intent of
suspect or officer).
ii. Consent is invalidated by:
i. Claim by officer that he already has a search warrant (however
statement that he will seekdoes not invalidate);
ii. Prior illegal police action (fruit of poisonous);
iii. Right to counsel asserted (consent request should be directed through
counsel).
iii. NOT a factor:
i. 5th warning (is notrequired, b/c request for search is unlikely to elici
incrim statements);
ii. Deception (undercover agents okay).
2. Third-Party Consent:i. Test is not whether actual authority exists, but rather whether police had
reasonable belief that party had authority to consent (assertions + knowledge
+ key = reasonable)
i. X-girlfriend who doesnt live there anymore, but doesnt mention
that and continually calls the apartment her apartment.
ii. Reasonableness," not consent, is the touchstone of Fourth
Amendment jurisprudence; the Constitution only prohibits
"unreasonable" searches and seizures. Therefore, the constitutional
validity of a police determination of consent to enter is not judged by
whether the police were correct in their assessment, but by whether based on the facts available at the moment, it was reasonable to
conclude that the consenting party had authority over the premises
Illinois v. Rodriguez
ii. Sources of Authority:
i. Spouse can reasonably consent to any shared marital property
HOWEVER: other spouse can block consent if present. US v. Duran
ii. Parent can consent to search of live-in minor childs quarters, and
sometimes live-in adult child
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iii. Landlord may consent to common areas, but NOT to tenants
privately controlled premises.
iv. Employer may consent except as limited by employees privacy
expectation.
1. Reasonableness of employees expectation of privacy.
v. Employee may consent to business within the scope of authority
iii. Limitations:
i. Antagonism where motive of wifes consent is clearly one of spite
she has no right to waive her husbands protection agains
unreasonable searches and seizures. State v. Gonzalez-Valle
ii. Police have knowledge of expressed denial of consent. Georgia v
Randolph
iii. Suspect is present and denies consent
iv. Suspect has exclusive control of specific area within the mutual
larger area
ENTRAPMENT:
1.THE BASIC TEST
a.1973: Entrapment occurs when law enforcement officers instigate a criminal act by persons otherwise
innocent in order to lure them to its commission and to punish them; the focus is on predisposition or
intent of DEFENDANT to commit the crime.
b.The govt. may not originate a criminal design, implant in an innocent persons mind the disposition to
commit a criminal act, and then induce the commission of the crime so that the govt. may prosecute.
i. To be entitled to the entrapment defense the defendant must show that the govt.s conduct
induced the defendant to commit the crime.
1. Conflicting theories:
i. Courts disagree on whether to be tried by court or jury, whether entrapment
defense is mutually exclusive with denial of act, to what extent
DEFENDANT must prove, etc.ii. 1st Circuit: when the govts quest for conviction leads to the apprehension of
an otherwise law-abiding citizen who, if left to his own devices, likely never
would have run afoul of the law, the courts should intervene.
iii. 5th Circuit: the govt failed to prove that the preacher was likely to engage in
money laundering absent the govts conduct.
ii. The govt may not originate a criminal design, give an innocent person the disposition to
commit a criminal act, and then induce commission of the crime in order to prosecute.
1. Outrageousness: Unless the conduct reaches demonstrable level of
outrageousness, the govt is not required to have reasonable suspicion of the
wrongdoing; agents simply provide an opportunity for Defendant to commit a crime.2. Middle Men: when government agents have persuaded a middle man to induce a
particular target selected by the agents to commit a crime, the courts have generally
extended the entrapment defense to the ultimate targets
3. Legal conduct and law changes: Prior lawful acts may NOT be used to prove
predisposition.Jacobson v. US:
i. Man read child pornographic magazine that was once legal, but became
illegal. Govt. arrested and tried to shoe predisposition by saying that he
ordered it when it was legal.
INTERROGATION &CONFESSION:
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1.MIRANDA
a.In general, any statement made by a suspect as the result of a custodial interrogation is
compelled, and thus violates the Fifth Amendment right against self-incrimination, unless the
government proves the police provided adequate procedural safeguards (effective to secure the
privilege against self-incrimination).Miranda v. Arizona No. 759
i. Miranda warnings cannot be repealed by Congress because it is a Constitutional
decision, over which the court has the ultimate authority.Dickerson v. US
ii. Public Safety Exception: may question without recitation if reasonably prompted to do so by
concern for public safety (the gun is over there = admissible).
1. Since the police officer's request for the location of the gun was prompted by an
immediate interest in assuring that it did not injure an innocent bystander or fall into
the hands of a potential accomplice to Quarles, his failure to read the Miranda
warning did not violate the Constitution.New York v. Quarles
b.Custodial Interrogation:
c. Custody: Exists if, at the time of the interrogation, a reasonable person in the suspects position
would conclude that his freedom of action is curtailed to the degree associated with an arrest.
i. Determining whether a suspect is actually in custody has always been based on objective
criterion like whether he had been brought to the police station by police or had come of his
own accord. Yarborough v. Alvarado
ii. No need to Mirandize an on-the-street interview or voluntary walk-in precinct confession.
d. Interrogation: Express questioning, words or actions that the police should reasonably expect to
elicit an incriminating response from the suspect.
i. The Court held that the Miranda safeguards came into play "whenever a person in custody is
subjected to either express questioning or its functional equivalent," noting that the term
"interrogation" under Miranda included "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 subject."Rhode Island v. Innis
ii. Spontaneous statements: made by a suspect in custody, but NOT in response to interrogationare still admissible (police conversation in front seat about tragedy was NOT interrogation)
iii.Agent/officer disguised as fellow prisoner is NOT interrogating suspect. Illinois v. Perkins
iv. Routine booking questions are permitted, unless they are designed to trip up / show menta
state (date of 6th birthday). Manner in which routine are answered is not in itself testimonial.
1. The court reasoned that 5th Amendment and Miranda apply only to evidence of
testimonial or communicative nature and not to "real or physical evidence." The court
ruled that when the officer asked the defendant for his name, height, etc. before
reading him his Miranda rights, it did not violate the 5th Amendment rights of the
defendant because these questions are part of police booking routine.Pennsylvania v
Munizv. Physical or demeanor evidence v. evidence of silence: The prosecution may not use the fact
that the defendant stood mute or claimed his privilege in the face of accusation. This case
involves comments on post-arrest, pre-Miranda silence and demeanor. After one is in
custody, regardless whether the Miranda warnings were actually given, comment on the
defendant's exercise of his right to remain silent is unconstitutional. US v. Velarde-Gomez
vi. Reasonable danger of incrimination: Statutes requiring suspects to identify themselves
during police investigations did not violate either the Fourth or Fifth Amendments. Under the
rubric ofTerry v. Ohio, the minimal intrusion on a suspect's privacy and the legitimate need
of law enforcement officers to quickly dispel suspicion that an individual is engaged in
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criminal activity justified asking a suspect to identify himself. No reason to think that asking
for identification would trigger incrimination. Hiibel v. Sixth Judicial Court
e. Procedural Safeguards:
i. Adequate Warning: Of right to remain silent, that anything said can and will be used
against, of right to consult with lawyer and have one present during interrogation, and that if
cannot afford lawyer, one will be appointed.
1. if you are an american citizen and you go to france then you get mirandized coming
back into the country
ii. Knowing, Voluntary and Intelligent Waiver:
1. Knowing and intelligent: suspect is aware of the nature of the rights and
consequences of abandoning them.
i. Intelligent does not mean wise; suspect can waive without understanding
inculpatory nature of statements.
2. Voluntary: no coercion (based on the totality of circumstances, including suspects
age and intelligence, and conduct of police).
3. Waiver cannot be inferred from the simple fact of a post-Mirandizement incriminating
statement. However, silence combined with acts that demonstrate waiver may be
sufficient.
i. The court is tolerant of a number of ways to waive, including signing then
talking, not signing then talking, etc.
ii. Whether the incriminating statements and sketches were admissible on the
basis of waiver was a question to be resolved on the totality of th
circumstances surrounding the interrogation. On the basis of the record, it is
clear that respondent voluntarily and knowingly waived his Fifth Amendment
rights and consented to continued interrogation, and that the statements and
sketches obtained from him were voluntary, and hence their admission in the
Juvenile Court proceeding was correct.Fare v. Michael C.
iii. If a suspect has not yet requested a lawyer but, unbeknownst to him,somebody else has retained on for him, the failure to inform the suspect that a
lawyer is trying to see him does not erase the waiver of his Miranda rights
Moran v. Burbine
f. The Rights, Once Asserted:
i. Right to Silence: Police may not interrogate a suspect who has asserted her right to silence
about this crime; however, following a new Mirandizement and a significant passage of time
they may ask about another crime.
1. Respondent's right to cut off questioning was scrupulously honored, the police having
immediately ceased the robbery interrogation after respondent's refusal to answer and
having commenced questioning about the murder only after a significant time lapseand after a fresh set of warnings had been given respondent. Michigan v. Mosley
2. The right to silence includes prohibition on comment by govt on silence.
ii. Right to Counsel:
1. Police may not interrogate a suspect who has clearly and unequivocally asserted her
right to counsel about ANY crime, until counsel is present; this protection continues as
long as suspect is in custody. Minnick v. Mississippi
i. clearly requests an attorneyDavis v. US
2. Suspect may waive/void the right to counsel if she re-initiates communication with
police.
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i. Thus, a suspect detained during an investigation may, after invoking his right
to have counsel present during an interrogation, may ask for a drink of water
or to use the telephone without retreating from his prior request for counsel
He may not, however, ask more generalized and open-ended questions
Oregon v. Bradshaw
3. Also, this is NOT the 6th A right to counsel, which IS offense-specific.
4. Under any circumstances, once DEFENDANT has RETAINED to counsel, he cannot
be actively questioned by the state or its agents (including informants); passiv
informants may be okay.
5. Police do not have a rule about how they treat attorney so long as it has no relevance
at all to the degree of compulsion experienced by the defendant during the
interrogation. Moran v. Burbine
iii.Fruit of the poisonous tree:
1. Pre-Miranda volunteered physical evidence IS admissible.
i. US v. Patane, US 2004sup38: physical evidence derivative of a Miranda-
violating confession is admissible
i. after police gave defective warning, suspect told them where to find
gun
ii. held: gun is admissible at trial
1. Miranda exists only to prevent against testifying against
himself, and that the admission of additional fruits of a non-
Mirandized but VOLUNTARY confession in that case
physical evidence therefore cannot violate Miranda.
2. Police practice of eliciting confession, then Mirandizing, then re-eliciting confession
this is NOT okay, UNLESS there is a sufficient break after first confession but before
Mirandize, so as to give DEFENDANT reasonable belief that she can decide not to
speak with police.
i. Oregon v. Elstad, 1985: need not be made aware that a previous confession(made before Miranda warnings were given) is inadmissible, making second
confession admissible. Analyzed as to whether or not the confession was
knowingly and voluntarily made.
i. No casual link between first and second confession.
ii. Missouri v. Seibert, 2004: police followed protocol that called for
interrogation without Miranda warnings followed by warnings and repeat of
confession
i. held: second confession is inadmissible
ii. this situation can be distinguished fromElstadon the following
grounds:1. (1) deliberate failure to warn ;
2. (2) explicit use of previous statement;
3. (3) failure to advise suspect that previous statement could not
be used against her
g. Problems with Voluntariness:
i. False promise not to prosecute (from cops to suspect) is notper se violation.
ii. Paid informant offering to protect suspect from other inmates in exchange for truth =
COERCION, b/c threat of physical harm.
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h. Proceedings: Once legal proceedings begin, everything changes. DEFENDANT cannot be
interrogated unless advised, consciously waives 6 amendment rights.
i. Brewer v. Williams, 1977: the attachment of 6A rights is determined by the occurrence of a
certain prior event (i.e., the institution of proceedings against indictment or arraignment);
it does not depend on whether lawyer would be useful to help suspect prevent incriminating
herself
ii. once 6A rights attach, the government may not deliberately elicitedinculpatory statements in
the absence of a valid waiverof the right to counsel
1. Fellers v. US, 2004787: arrested in his home after having been indicted (6A
attaches at indictment); inculpatory statements made to officers before waiver was
signed are inadmissible
i. NOTE: remanded to determine whether second statement (made after wavier)
was admissible (i.e., whetherElstadapplies in 6A context)
2. Maine v. Moulton, 1985793: codefendant agreed to cooperate with police in
ongoing investigation of witness tampering after he and were indicted; met with
(at s urging); police told him to discuss eliminating witnesses (which rejected);
conversation then turned to the theft for which they were indicted and related
burglaries
i. held: incriminatory statements are inadmissible in trial of the charges pending
ii. deliberate elicitation:
i. even though officers told informant to limit conversation to witness
tampering, theyshould have known that their investigative tactic
would lead to incriminatory information from charged in absence of
counsel
ii. nor does it matter that initiated meeting with informant: knowing
exploitation by the State of an opportunity to confront the accused
without counsel being present is as much a breach of the States
obligation not to circumvent the right to assistance of counsel as is theintentional creation of such an opportunity
iii.NOTE: inculpatory statements re. crime 2 (witness tampering) would
be admissible in trial of that crime b/c had not yet been charged;
inculpatory statements re. crime 1 would also be admissible at trial 2 if
relevant
3. US v. Henry, 1980789: paid informant, a fellow inmate, engaged in conversations
with while he was incarcerated after indictment that led to a confession
i. although government agents instructed informant not to question about his
crime, the informant was not just a passive listener but an active participant in
conversations with ii. held: incriminatory statements made in the course of these conversations are
inadmissible
4. Kuhlman v. Wilson, 1986791: 6A right to counsel is not violated where government
informant was placed close to and overheard make incriminatory statements, but
did nothing to elicit these statements
iii. Texas v. Cobb, 2001799:Blockburgertest is used to determine whether the offense
regarding which is question is the same as that for which he was indicted
1. test: whether each offense requires proof of a fact that the other does not
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2. held: The United States Supreme Court held that, regardless of whether the murder
charge was closely related factually to the burglary offense, the right to counsel was
offense specific. Since the two offenses required different elements of proof, they
were separate offenses, and prosecution was not initiated on the murder offense at the
time of the interrogation. Respondent thus had no right to the presence of his
previously appointed counsel during the interrogation concerning the murder charge,
and the confession resulting from that interrogation was admissible.
iv. Waiver
1. as in Miranda, waiver must be voluntary, knowing, and intelligent (VKI)
i. waiver is not shown simply be establishing that elect to speak after
receiving warnings
2. knowing and intelligent
i. Patterson v. Illinois, 1988794: Miranda warnings sufficiently inform
defend of his rights to counsel; thus, if is given and understands Miranda
warning, waiver is knowing and intelligent
i. exception: if is not told that lawyer is trying to contact her during
questioning (as in Moran v. Burbine) and 6A has already attached,
waiver will not be valid
ii. also, whereas a conversation between an undercover officer and would not
give rise to Miranda violation, it does violate 6A
iii.
IDENTIFICATION:
RIGHT TO COUNSEL
Pre-Indictment, Live: No right to counsel before formal proceedings begin.
1. Kirby v. Illinois, 406 U.S. 682 (1972) (the right to counsel does not apply to pre-indictment eyewitness
identification). At the start of adversary judicial criminal proceedings
Post-Indictment, Live: Right to counsel in live ID process attaches when formal proceedings begin.
1. An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedureconducted after the commencement of an adversary judicial criminal proceeding against him. This rule is
known as the Wade-Kirby doctrine. United States v. Wade, 388 U.S. 218 (1967) (recognizing that a person
is entitled to the assistance of counsel at all critical stages of a criminal proceeding, and determining that the
pretrial exhibition of a suspect to a witness for identification purposes is a critical stage of the prosecution);
a. If counsel is not present at the post-indictment lineup, and the accused has not waived counsel
results of the out-of-court identification are inadmissible. In such cases, the prosecution is
furthermore precluded from obtaining an in-courtidentification of the accused by the same witness
unless it proves by clear and convincing evidence that the in-court identification does not constitute
fruit-of-the-poisonous-tree evidence. Among the factors that may be considered are:
i. the prior opportunity of the witness to observe the alleged criminal act.ii. the existence of any discrepancy between any pre-lineup description and the defendant's
actual appearance.
iii. any identification prior to lineup of another person.
iv. the identification by picture of the defendant prior to the lineup.
v. failure to identify the defendant on a prior occasion.
vi. the lapse of time between the crime and the lineup identification.
b. Moore v. Illinois: Defendant was convicted for rape after his victim identified him at a preliminary
hearing in which defendant was not represented by counsel. The Court held that defendant's Sixth
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Amendment rights were violated by a corporeal identification conducted after the initiation of
adversary judicial criminal proceedings and in the absence of counsel.
Photographic: No right to counsel (because not an adversarial confrontation).
1. Distinguished from in-person line-ups are mug shots. The Sixth Amendment does not apply where the
police present photographs, including a photograph of the accused, to an eyewitness for possibl
identification of the perpetrator. Such a display, although it occurs after indictment, is not a critical stage of
the prosecution. United States v. Ash,413 U.S. 300 (1973).
SUGGESTIVE PROCEDURE
Due Process: Due process is denied if an ID is unnecessarily suggestive and conducive to irreparable
mistaken ID.
1. Evidence of apretrial identification of the accused must be excluded from trial if, based on the totality of
the circumstances, the procedure used to obtain the identification was (1) unnecessarily suggestive; and (2)
conducive to mistaken identification. Stovall v. Denno, 388 U.S. 293 (1967). This rule applies regardless
of whether the identification was corporeal or non-corporeal, occurred before or after formal charges were
initiated, and whether or not counsel was present.
a.Balancing Test: opportunity of the witness to view the criminal at the time of the crime, the degree of
attention paid by the witness, accuracy of the prior description, level of certainty, and the time
between the crime and the confrontation.
b.
Reliable IDs:
1. Even if an identification procedure isunnecessarily suggestive, the identification procedure must also have
been unreliable in order to exclude the evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The
relevant factors in determining reliability include:
a.Person conducting line-up should not be aware of suspect.
b.Eyewitnesses should be told that the suspect might not be in the lineup.
c.Suspect should not stand out in any way.
d.A clear statement of witness confidence in the ID should be taken
e.the opportunity of the witness to view the perpetrator at the time of the crime.f.the witness' degree of attention.
g.the accuracy of the witness' prior description of the perpetrator.
h.the length of time between the crime and the confrontation.
EXCLUSIONARY RULES:
STANDING TO SUPPRESS
1. A Defendant has standing ONLY to object to evidence obtained via an unconstitutional intrusion on
her reasonable expectation of privacy.
a. Rakas v. Illinois, US 1978516: movant must have a REOP in the place searched
i. target theory: any against whom search was directed
1. eg.Alderman: government installs illegal wiretap on As phone in order to gatherevidence against BB is target
ii. judicial integrity(Payner 523): the supervisory power does not authorize a federal court
to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a
third party not before the court
1. movant must have a REOP in the place searched
iii. automatic standing: movant testifies that he owned the property searched in order to create
standing ownership creates automatic standing.
1. testimony by the defendant to allege possession cannot be used against him at trial.
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iv. Business premises corporate or individual defendant in possession of the business premises
searched has standing, and that an officer or an employee of the business enterprise has
standing if there was a demonstrated nexus between the area searched and the work space of
the defendant.
v. Brendlin v. California: possessory interest in the items seized was automatically enough to
permit a challenge constitutionality; however, possession of the seized items must be
evaluated like other 4A claim relevant only if REOP with respect to item and search.
vi. being legitimately on the premises is insufficient.
vii.Ownership ofsome items kept in the intruded space is insufficient.
viii.A brief invited stay is insufficient visitors who do not stay overnightreceive no
protection.
1. however, two individuals arrested in third partys home while there for several hours
to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant
was lawful (Minnesota v. Carter, US 1998188)
2. important factors in determining whether there is a REOP in hosts home
i. length of stay
ii. purpose of visit: social v. business
3.FRUIT OF THE POISONOUS TREE
1. Wong Sun, 1963543: evidence is not admissible against where:
a. (a) it was come upon by exploitation of prior illegality; and
i. NOTE: exploitation connotes a higher degree of relatedness than simply saying cause; thus,
initial misconduct must be more than simply one among several causes
b. (b) the illegality was one of which had standing to complain
Independent Source:
The government can show that it had a legal independent source for the evidence. government must
prove by a preponderance of the evidence that the evidence would have been discovered through
independent legal means (Nix).1. general principle: police should not be put in a worse position that they have been in it no police error or
misconduct had occurred (Nix v. Williams, 1984550)
a. but for test.
b. Victim witness is untainted by initial photo ID from bad arrest, b/c victim was known to police
before arrest.
2. evidence observed in pain view during illegal entry, but later obtained pursuant to independently obtained
search warrant (i.e., warrant that did not rely on the illegal entry)
a. Murray v. US, 1988544: officers must have planned to obtain warrant before conducting illegal
search (i.e., purpose of illegal search cannot be to determine whether obtaining a warrant was
worthwhile)b. if officers decision to seek a warrant was prompted by evidence discovered during an illegal entry,
then the search pursuant to a warrant would not have been a genuine independent source
3.
Inevitable Discovery:
The government would have discovered the evidence without the illegal intrusion.
4.The police must show that evidence would have discovered the evidence inevitably and in the same
condition NOT that it could have or might have.
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5.Where govt has cause to arrest, but does so in an illegal manner, a statement outside the scope of the
illegality is admissible (ex: illegal in-home arrest, but statement made subsequently while outside
home).
6.CAREFUL: must distinguish illegal intrusion from illegally conducted intrusion; if the police can
search, but fail to announce themselves properly, the evidence will probable still come in.
Attenuation:
Some additional factor sufficiently attenuates the link between the illegal intrusion and the evidence
in question.
a.The shorter the time lapse between the Fourth Amendment violation and the acquisition of the
challenged evidence, the more likely it is that a court will conclude that the evidence is tainted. For
example, in Wong Sun [371 U.S. 471], the police obtained a statement from the defendant in his
bedroom immediately after his unlawful arrest. The Court suppressed this evidence, whic
derive[d] so immediately from the unlawful entry.
b. brea