Criminal Procedure Outline – Lerner – Fall 2010

I. Preliminary Topics in Criminal Procedure:

There are 3 topics we must first discuss: o 1) What makes a Case Criminal or Civilo 2) Incorporation of the Bill of Rights to Stateso 3) Retroactivity of Supreme Court decisions

1. What Makes a Case Criminal o It is not that the “burden of proof” is higher then that of a civil case, or that the penalty is jail timeo This may be similarly true of Civil Cases

Reasons for Wanting a Civil or Criminal Case Usually the ∆ will argue that it is in fact a criminal case Criminal Cases give certain benefits of constitution

o Right of Counselo 5th Amendment Privilege against self incriminationo Higher Standard of Proofo Right to Jury Trial

The 7th amendment has not been incorporated to states for civil trialo Punishment differso Stigma is differento Consequences of Felony Conviction

Gun Rights end, Voting rights endo Legislatures Designation:

What makes a case criminal or civil then, is the designation of the legislature When they say its criminal, they mean to invoke the criminal system for that sanction View of Supreme Court:

The Title of a case, however, is not dispositive, so the Court has come up with a test for evaluating if a case actually is Criminal or Civil

United States v. L.O. Ward: o F- The penalty for discharging hazardous waste within water was called a “civil”

punishment, but challenged that it was criminal to gain benefits of constitutiono L.O. Ward Test :

1) Determine Congress’s Intent to make Civil or Criminal How it is categorized

2) Then Determine if the penalty is so punitive as to negate the categorization Only clearest proof will prove element #2 Heavy presumption with legislatures designation

o Applied in:o Civil Commitment of Sex Offenders

1) Allen v. Illinois: Commitment proceedings, sending to Maximum Security Prison were not considered Criminal The 5th Amendment did not apply Strong Presumption worked, as Court relied on the label as “civil”

2) Kansas v. Hendricks: F- Commitment statute was used to commit sexual predator immediately after the jail time was up.

This was challenged under the a) Double Jepoardy Clause and the b) Ex Post Facto Clause (as it was passed after he was in jail)

R-o Thomas: Applying the L.O Ward test, the intention was civil

Based on placement in the books Title The clearest proof to negate was not used, as it was only used as evidence of a

mental defect Even if you weren’t convicted, you could be committed

Allowed for release on treatment working So # 2, no punitive intention

o Sex Offender Registration: These statutes, “Megan” statues, require convited sex-offenders to register with local authorities when they

move, buy a house, and continue to do so forever periodically Have been challenged under “Ex-Post-Facto” reasoning, that they were passed after peoples convictions Smith v. Doe:

Kennedy : Statues are Civil, and not criminalo Hendricks , was used showing that restricting a dangerous individual is legitimate

government purpose that isn’t punitiveo Didn’t have characteristics of Punishment:

Not physically restraining Was not like “supervised” release or probation Just had to let them know, and you were free to act

Souter (Concur): o Said the non and punitive benefits were balanced

Was located within the criminal code, called civil, had stigmatism of criminal punishment, and based on crime

o But because of strong presumption of intent, # 2 of L.O Ward test was not met Ginsburg (Dissent): Is Criminal

o Argued that this was same as supervised release/paroleo Said it was punitive because it applied to all people, no matter if they would even be

dangerous in the future o These people have no chance to end this either, no matter what they do

Punished indefinitely for crime that occurred and was punished for Policy:

The reason the Criminal/Civil question comes up a lot in Sexual Offender crimes is that they have high rate of recidivism and are politically charged. Highly legislated then, leads to many appeals

o Civil and Criminal Contempt Proceedings: Civil Contempt: Fined or imprisoned, but can rid yourself of your own contempt by actions Criminal Contempt: Court will assign a sentence or fine of fixed amount and duration no matter what you

do International Union v. Bagwell:

F- Union violated injunction, and court levied $64M in fines for civil contempt. Π appealed arguing that this was a criminal punishment and because of which, their constitutional rights were violated because of a lack of jury trial

R- Court held fines were criminal. o Court was not punishing something that happened in its presence o Court was policing out of court activity and fine was very serious amount, requiring a

jury, acting as police during a many month violation of injunction 2. Incorporation of Bill of Rights to States

o Question of “Does the Bill of Rights bind the state?”o Because of Incorporation, Criminal Procedure has turned from a rules based class into essentially a Constitutional

Law Class We almost exclusively focus on the Bill of Rights, and its criminal procedure aspects Seen first in Powell v. Alabama, incorporating the 6th Amendment’s right to Counsel

o Historically: Barron v. Baltimore (1833):

Court concluded that the Bill of Rights only applied to the Federal Governmento Did not apply to the stateso Article 1 § 10 of constitution clearly stated what states were prohibited from

Because that specified states, BOR did not apply because it didn’t specify 1860s Post-Civil War Amendments Created Twining v. NJ:

Privilege against self-incrimination did not incorporate to states Powell v. Alabama (1932):

One of earliest incorporation cases, incorporating 6th amendment right to counsel through the 14th amendment due process clause

Palko v. Connecticut (1937): F- Connecicut that had a rule allowing prosecution to appeal verdict. This was contrary to the

federal rule of “double jeopardy” but resembled European rule that allowed prosecution to appeal R- Identified the possibility of Bill of Rights incorporating through the 14th amendment Established rule that if BOR provision was “implicit in the concept of ordered liberty” could

incorporate But found that “Double Jeopardy” clause of America was not implicit in concept of ordered

liberty, because other places, like Europe, were operating in ordered liberty fine without it

o Modern Incorporation Doctrine : In 1960s, Warren Court shifted incorporation view Currently, Black’s view of total incorporation has almost fully occurred, and essentially the entire BOR

does incorporate to apply to states Grand Jury Has not incorporated Excessive Bail Clause Has not incorporated 7th Amendment Right to Jury Trial Has not Incorporated to Civil Trials

Duncan v. Louisiana (1968) White Majority:

o Test while the court’s test has varied, a BOR provision incorporates if “It is Fundamental to the American Scheme of Justice”

Differs from Cardozo’s view in Palko, which looked at European models which were “ordered”

Idea here, was that our system, America’s system, was different in values, and even if something worked elsewhere like England, there were certain things fundamentals here

“Trial by Jury” appears in BOR and Art. III §2 its important to us, and fundamental to our American system

Therefore 6th amendment incorporates through 14th amendment to states “Selective Incorporation Doctrine”

Bring in BOR piece by piece “Jot for Jot”

Believes that if a BOR provision incorporates, it applies exactly the same to the Federal and State government

Every Detail Equally Applies Black (Concur):

o Concurs, supporting this “selective incorporation” because at least it brings part of BOR to states, but believes in

o Total Incorporation: Textualist idea that the 14th P&I stands for the BOR, and was reasonable way

to say it Originalist He was Senator, and believes in looking at congressional intent

o Historical in CI analysis shows that that is what is intended o Fundamental Difference in View from Harlan

Believes in limited judicial discretion By limiting what can be incorporated to BOR, disallows justices from finding

new things to incorporate Disagrees with Harlan’s approach, because it allows the Justices too much

discretion in deciding what to incorporate, or think of new things within the idea of due process

o Federalism As member of KKK, justice Black supports idea that Federal Gov shouldn’t

interefere with states By advocating TI, limited to BOR, it may increase federalism, by limiting

possible judicial limits Harlan’s approach would put on states Harlan (dissent)

o Justices should gradually Include: While agrees TI is consistent, thinks that Justices should gradually include based on justice’s interpretation of what due process and liberty mean within the 14th amendment.

Judicial Discretion to determine what may beo Allow what is Far: Letting states experiment is beneficial Like Connecticut’s

prosecutory appeal Advocates idea of evaluating the fundamental “fairness” of the state’s process,

and if it is fair its oko Text Does not mean BOR:

Text does not incorporate Uses Law Review article to find intent of congress and argues that if it wanted

to incorporate BOR, the P&I clause is a funny way of doing so 3. Retroactivity

o At what point does a new Supreme Court Rule Apply in a case? Who Gets the benefit?

o Based on Direct and Collateral Review Direct Review:

Everything before filing of certiorari Direct Review Collateral Review

Once Direct Review has been exhausted Collateral Review / Habeus Corpuso Process: begin in trial courtAppeals Highest (State or Fed)

Collateral Review Is Limited Does not allow case to be redoneo Rule of Retroactivity:

Everyone on direct review gets the benefit of the new rule of Supreme Court EG: convicted, appeals and files for cert and while cert petition is petition is pending new rule

comes down, you get the benefit No One on Collateral Review gets the benefit

Unless (2 narrow exceptions Teague v. Lane (O’Connor)): o 1) Rule places primary conduct regulated beyond the power of the government to

prescribe EG: 1st amendment protects what you were convicted of

o 2) Without the procedure in new rule, there would be serious problems with determining guilt or innocence

What is a “ New Rule” Something that reasonable minds would disagree on the outcome of Why did O’Connor Limit Exceptions to Retroactivity?

1) Finality We want criminal convictions to be finalizedo costs are high if they are noto if we are very retroactive, the less likely it is the Supreme Court will make new rules

2) Comity We need to respect state courts

II. The 4 th Amendment:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search 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 persons or things seized”

Basics o Begin by analyzing the text of the amendmento 1) “The People”

the amendment makes it seem as though it was meant to apply to all people, regulating their conduct Supreme Court has narrowly construed, however

What People are they Talking about? U.S. v. Verdugo-Urquidez

o F- Mexican citizen, non-us resident was arrested by Mexican police in mexico, and transported to US. Then, US officials searched his home in mexico

o R- Court said 4th amendment does not protect abroad, non-citizen outside of US “People” was intended to be part of Nation, connected to this country

Illegal Aliens within US o While not explicitly decided, 5 justices indicated that the 4th amendment would apply in

this case The “connection” would be sufficient, because within country

o Post 9/11, however, presents many questions of the unknowno 2) Made up of 2 Clauses

a) The Reasonableness Requirement prohibits “unreasonable search and seizure”

b) Warrant Clause Both, however, have been read together All searches and seizures without a warrant are presumed unreasonable

There are exceptionso When so must only be reasonable, or only have probable cause

o The Text and Exclusion Rule The 4th amendment has substance but has no remedy Court has imputed the remedy as Exclusion of evidence acquired without compliance

However, the fear that evidence will be excluded has effected the interpretation of the amendment, making it somewhat far reaching

Therefore, the scope of the rule is changed What is a Search and or Seizure?

o The 4th amendment only regulates unreasonable search & seizure Therefore, if activity constitutes neither 4th amendment does not apply Government then does not have any restrictions to act reasonably A Search or seizure is presumptively unreasonable, unless a warrant has issued

o Search and Katz v. United States: F- Person in phone booth was convicted of 8 counts of transferring wagering information over the phone.

FBI used wire tapping device to listen to his conversation but did not have a warrant R-

Majority:o 1) Cleared idea that the 4th amendment was not restricted to tangible things

Does not only apply to physical intrusion Also applies to intangible, oral statements Their listening in on intangible conversation was a search Therefore This was a search and required compliance with 4th

o 2) The Conduct FBI acted with was reasonable, and probably would have gotten them a warrant based on the evidence

However, Court does not allow self imposed restrictions on what police force will do need a warrant to be reasonable!

They, therefore, didn’t comply with 4th amendment *Harlan Concurrence* Katz Test

o Katz decision is seen to stand for Harlan’s concurrenceo Katz “Reasonable Expectation” Test: to determine if there is a search

1) Did person exhibit an actual subjective expectation of privacy, and 2) Is that expectation of privacy one that society recognizes or prepared to

recognize as reasonable?

o Here Going into phone booth, paying, and shutting door showed #1 So, Public in view and place, but intended to be private, and closing door shut

out auditory listening subjective Society recognizes the phone booth as place of privacy#2

4th amendment applies, and this was a search then Black Dissent:

o Textualist Viewo Text shows clear intention to stick to tangible physicalities

Court should stick to physicalities then Too much judicial discretion here

o Wire-Tapping is eavesdropping, and not tangible Oral conversations were not considered, and not written in the amendment

o Argues that Court then, is abandoning the language which sticks to Policy and Courts Actions:

o Should Court stick to literal view (Black) or extend to new technology not considered in 1700’s (Majority extending it to phones conversation)?

o “translation” Katz shows an extension of 4th amendment text beyond just the physical/tangible

things listed But we will see that Katz does not get extended too far into new

technology…internet, etc…o If the Court had not applied 4th to Conversation, and had stuck to literal meaning

Congress could act Amend Constitution Legislate

With technology that many people use, Congress has incentive to act, protecting constituency

EG: Wire Tap Statutes Issues with Harlan Test:

o Prong 2 could be limited to what government makes us expect is reasonable Could say we are tapping you all- we would expect that then

o Subjective privacy can change with technology tooo Use of Tort Law/ Regulations to alleviate this?

Should we connect a search with tort law? If it’s a trespass, is it a search?

No, it would greatly vary based on the state Court would have to create federal tort law

Would need warrant for everything then to violate tort law with impunity

Katz Test, and Interests that Court has Recognized as protected o 1) Interest to be free from physical disruption and inconvenienceo 2) That Certain information be kept privateo 3) That property be kept from unreasonable search and seizure as citizens have legitimate interest in using and

controlling their property “Seizure” is when property is meaningfully interfered with, an individual’s possessory interest is

meaningfully interfered with Synopsis of the Following Section Factors the Court has Looked at:

Factors Court has used to determine if/if not Search or Seizure-Katz Test (What is Search) -Public’s Access to Activity1. Subjective Expectation -Ordinarily Access it2. That Expectation in privacy is one that societies’ -Legal to access itrecognizes as objectively reasonable -Open Fields are not protected

-Conveying to 3P (person or corp.)-Use of Tort is no longer used -Assume risk they may release it-Use of Regulation may be used -Visibly Exposed to Public/window-Intimate Activities it reveals - Ariel Surveillance -Search that will Only Uncover Illegal act -The Home

Congress’s Role in 4 th Amendment Supreme Court’s Rule: o While the Court may rule something is not a search, Congress can regulate to create more protection

Why Can adjust quicker then the court Means to with hearings, anticipate issues rather than waiting for case to come, lobbyists,

constituency will alert them to it Exceptions and How Court has interpreted the Katz Test

o Throughout These exceptions we see that do not fit into the Katz test of the Search, we see judicial reluctance to find something a search because of the adverse consequences of the exclusion rule

Fear that finding something a search, will exclude the evidence o 1) Prong # 1: Subjective Manifestation

Individuals must take affirmative step to protect their privacy interest If not, police inspection will not be a search: Prong # 1 not met

Abandoned Property Typically, abandoning is inconsistent with retaining privacy interest or possessory interest in that

thing Abandonment does not have to be explicit

o Look at Intent From acts, words, other factso Unused apartment/mailbox

Denial of ownership of X; a container for instance Typically not used, however Law varies from state to state (Like tort)

o 2) Prong # 2: o A. Open Fields:

Originally If open to the public Police could access If not, and fenced off, was trespass and a search

Modern: Are not within a persons legitimate expectation of privacy society will recognize Cant demand privacy in activities conducted outside Even if you subjectively believed it Oliver v. US : Where ∆ complained that police officers had trespassed on his farm, past gate, to

find marijuana growing on his propertyo This did not amount to a searcho Cant demand privacy in field, unless immediately around home

Curtilage Curtilage

Oliver allowed the protection of Curtilage, or area immediately outside of home but what exactly is this?

o If within Curtilage, 4th amendment does apply Use of Katz Test this would be in prong #2

U.S. V. Dunn - barn was 50 yards from house, on a property of 200 acres with several different perimeter fences, barbed wire and netting over the barn windows to see drug laboratory used this information to get warrant

o This was not a searcho 4 Factors to determine Curtilage

Factors Court has used to determine if/if not Search or Seizure-Katz Test (What is Search) -Public’s Access to Activity1. Subjective Expectation -Ordinarily Access it2. That Expectation in privacy is one that societies’ -Legal to access itrecognizes as objectively reasonable -Open Fields are not protected

-Conveying to 3P (person or corp.)-Use of Tort is no longer used -Assume risk they may release it-Use of Regulation may be used -Visibly Exposed to Public/window-Intimate Activities it reveals - Ariel Surveillance -Search that will Only Uncover Illegal act -The Home

1) Proximity of the area claimed Curtilage to the home 2) Whether area is included within enclosure surrounding home 3) Nature of use to which area is put 4) Steps taken to restrict observation from passers-by Thus barn in Dunn was not Curtilage

* Also looked at intimate activities associate with home

o B. Access by Members of the Public Following Katz, the court determined that

If aspect of a person’s life is public, subject to scrutiny from societal members, that person has no legitimate expectation of interest in privacy to deny the policy if police obtain what the public can, it’s not a search

Court then looks at, “who is the public” Consensual Electronic Surveillance:

US v. White: o Informant had wire on him, transmitting what ∆ said to police. Court said that this was

allowed, that the illegal acting ∆ should realize that what he says can be heard by 3rd party and he assumes this risk

Saying Words assume risk 3rd party will hear, and not search Assumption of risk—conveying to a third party “Public” is the 1 other person, and because anyone could hear it it is not

expectation of privacy Video Surveillance:

o US v. Gonzales: ∆ worked at hospital. Hospital cooperated with police, allowing camera to be put

in mail room where suspected drug receipt was occurring. Caught ∆ on camera doing “touchdown” symbal.

Room he did it in was open, anyone could see with windows therefore The video of him was the public

Court said he did not have expectation of privacy in quasi-open room Note Public can be very small, even just 1 person (US v. White)

Financial Records California Bankers Ass’n v. Shultz: looked at whether the recordkeeping and report requirements

of Bank Secrecy act violated the 4th amendment as searches without warrants, as it required many informations to be kept.

o Court said no, it was not a searcho Banks were parties to transaction, so depositors granted access to the bank and had no

expectation that government would not also accesso Like all Public Access if a 3rd party (even 1 person/public) could access information,

the police can too. Here no differento Conveying information to a 3P…they have ability to release it…so you assume this

risk… United States v. Miller

o Held that no search, and 4th amendment did not apply, when subpoena to bank to obtain depositors records.

Used same analogy above. Making available to bank (3rd party/public), makes it available to government

o Policy: This led to Congressional Action

Congress Passed Act due to Court refusing to find more protection from constitution

We saw this also above after Katz argument over whether the amendment should be applied to new technology

o As we’ve seen in this jurisprudence, Court has not been willing to extend 4th amendment very far

o Probably due to fear of exclusion of the evidence if it finds that there was a search

Pen Registers Smith v. Maryland:

o F- Police installed device that recorded #’s called by the ∆’s phone company from his home phone

o R- Court found this was not a search No expectation of privacy in information that is voluntarily turned over to a 3rd

party The person you were calling could have relayed that information, so

society doesn’t recognize this interest Phone Transfers data to the phone company To 3rd party (public) Led to Congressional Action Note:

Trap and Trace is for incoming messages Pen-Register is for outgoing messages

o Congress has legislated use on e-mail and phone Electronic Communications Act Tab Z in Supplement

o Need Warrant to get content of message Note:

o This is another example of Congress ratcheting up the protection. While the Court did not find pen-register as search, ECA by Congress created protections for it (see supra reasons)

EG: Cordless Phone Is it a search to listen to conversation?

o Apply Katz While there may be subjective expectation Not objective expectation society recognizes

Broadcasts over FM frequency, which anyone with a radio (that is common to public) can listen to

Courts have not recognized as reasonable because of this reason Public can access

States have legislated, however, to protect it Cell Phone Is listening to conversation a search?

o Apply Katz Subjective Yes

Technology is different, and much more advanced Public cannot really access, in common practice

o Requires extreme technology Courts have held there is reasonable expectation that society recognizes

in Cell phone privacy Is Search Requires Warrant

Trash California v. Greenwood:

o Trash was exposed put on corner, where police accessed it to gain evidence leading to search warrant

o Not Search Public Access:

“Sufficiently exposed their garbage to the public” Commonly known that once there, readily accessible to public or

anyone Once on the street corner, anyone in the public could have accessed it Conveying it to a 3rd party, who could do with it whatever

Because of Public’s access Police could as well SCOTUS did not use Tort:

Irrelevant that city ordinance prohibited throwing out trash other way Supreme Court rejecting use of tort/law/ordinance…because they vary

too much Used Possibility rather then Ordinary

Just because it was possible public could accesso Relied on Smith

US. v. Hendrick: o Not a search even though trash was on the corner, near the porch of the house…question

of cartilage is something within curtalige? Or is it available to public Shredded Paper:

o US v. Scott o Shredded paper within trash bag is not a search

was “underestimation of police resourcefulness [to put shredded paper back together] not invasion [of 4th].”

o Was available to public, and just because police put it back together was not as search Waste Water

o Riverdale Mills Corp v. Pimpare: o EPA collecting and inspecting waste water did not constitute a search

Public Area: So, under Public Access factor, police can access anything that the public can What area’s are public, sufficiently such, that police can examine without warrant?

o Bathroom Stall US v. White: Police peering into a bathroom stall was not a search

While there is an expectation of privacy within it, the stall could be seen into by anyone by the design of it

o Homeless Connecticut v. Mooney:

Homeless man’s bag, although on public land, had a reasonable expectation of privacy that society recognized in a closed bag

Greenwood did not apply because court saw it as a “conveyance to 3rd party”

Aerial Surveillance: Using the Smith and Greenwood reasoning, the Court has held that surveilling by flying over

someone’s property is not a search California v. Ciaralo:

o F- Flying at an altitude of 1,000 feet, observing marijuana growing operation was not a search in the meaning of the 4th amendment

o R- Any member of the public could have flown over it, and seen the same thing Not a reasonable expectation of privacy

Dow Chemical v. US o EPA flying over a plant that had taken precautions to restrict views, taking pictures of it

was not a search Dissent Argued that trade-secret laws prohibited this, and exhibited societal

recognition of a reasonable privacy interest Florida v. Reilly

o F- Helicopter flew 400 feet above the ∆’s land, because flying over it had an obstructed view from airplane.

o R- Not a search Ordinary v. Legally Possible

White advocated that if the public could potentially access the Riley’s back yard, then it was not a search

o Just need legal possibilityo Also used FAA regulation

Because no law prohibited it, it was ok for public to do

O’Connor advocated that if the “public ordinarily would have access to such information”

Note: 5 justices agreed that mere “possibility” approach was incorrect in making an expectation of privacy unreasonable

Note: o Following Riley, the Court began to apply the “Ordinary Behavior” rule instead of

the legal possibility approach

Manipulated Bags in Transit Bond v. US

o F- Agent boarded a bus, and began “squeezing” and groping bags from the outside, to determine if there was anything suspicious within it. He felt a brick like object in ∆’s bag, and after ∆ consented to a search found meth.

o I- Was this the type of manipulation that the public would normally do, making the conduct under the Public Access doctrine?

o R- Katz #1 There was subjective expectation of reasonable privacy by putting

things within a zipped bag, and placing them overhead Katz #2

Ordinary v. Legally Possible Approach While the public may move a bag, or casually glance a bag here and

there, the public does not grope or squeeze bags ordinarily Even though the public Could access it, it would not ordinarily do so

in this way Breyer Dissent:

Argued that travel consists of squeezes, and it is going to happen Because public does normally do so, police should be able to as well

o But, Breyer was comparing airline travel to bus travelo C. Investigations that can only lead to an Illegal Activity

The Supreme Court has held that there is no legitimate expectation of privacy that society recognizes in illegal activity Therefore, if method can only reveal that: No Search

Canine Sniff: US v. Place:

o The Dog Sniff can only reveal illegal items presenceo Does not require luggage be opened

Intrusiveness: Preserves issue of embarrassing or privacy and is only minimally

intrusive because it can only lead to illegal items o Not a Searcho However

Taking to long to perform it, to acquire a dog to do the search, or delaying so that the dog can perform may lead to Seizure

90 minutes waiting for dog was too much Seizure Seizure Exercise in dominion and control over one’s property

However Canine Sniff is not a search, BUT Police Cannot immediately Open Bag The sniff and alert to something illegal is legally obtained information

o Sniff, or Sniff + other evidence can lead to Probable cause to get Warrant Does not apply to exceptions…(We will see later)

Canine Sniff that Rips Article

US v. Lyons- When police dog rips open package, spilling the cocaine everywhere that is not a search

o Treated like a natural (instinctive) occurrence, and not attributable to government Dog Sniff and People

5th Circuit has stated that if o Dog Contacts Person It is a seizureo Dog Sniffs from 4 feet away Not a Seizure

Dog Sniff of Car During Routine Traffic Stop Illinois v. Caballes

o F- ∆ was legally stopped and seized during speeding ticket stop. While officer was writing ticket, K-nine unit arrived and began sniffing the car. The dog alerted to smell, and police found marijuana and arrested him.

o I- Do you need an articulable suspicion to use a dog?o R-

Initial Seizure was Legal But can become unreasonable, and constitutional infringement if

takes too long o See Place (90 mins. too long)

Here, facts did not show that the police extended the stop or delayed to get a dog… the stop did not change much

Applied Place, which stated that there is no societal interest in contraband Using a dog, then, to reveal contraband, is not a search and using dog

in traffic stop does not invade any legitimate interest in privacy Minimally intrusive, under Place, to only reveal illegal things

o Ginsburg Dissent: Understands dogs looking for explosives, which are in need of public safety, but

thinks that this will lead to dogs being used whenever a car is stopped Potential problem, because the dogs change the nature of the stop making it

much broader than initial stop, and more adversarial Chemical Testing

Powder: o US v. Jacobson o Court applied Place, upholding that testing a chemical powder that FBI agent acquired is

not a search Test will only disclose illegality Minimally Intrusive

o Was Seizure But because only destroyed minimal amount, it was reasonable

Urine Testingo Skinner v. Railway Labor Executives Ass’n

Testing of Urine sample is a search Unanimous decision Very Intrusive unconvers innocent, secret information

Disease, pregnancy, medicens, etc… Collecting it is intrusive and embarrassing Society recognizes this as reasonable expectation of privacy

Technologically Enhance Inspection: Kyllo v. US:

o F- Agent suspected marijuana growth, which requires high intensity lamps which give off a lot of heat. One night, agent arrived at the house with thermal imager, and detected heat that was greater then what would be normal of the neighborhood. Based on this, informants, and utility bills, issued a warrant and found 100 plants.

o I- Was thermal imaging a search, without warrant leading to illegally gathered information?

o R- Majority Was a Search

1) Technology was not in general public use, so public did not have access to this kind of information

2) Homeo Scalia draws bright line at the front door of houseo Intimate Activities : The intrusiveness of this method can

reveal intimate activities of the home which is too intrusive o All details of the home are intimate activities

Women in hot bath, etc… 3) Uncovers both Legal and Illegal Activity

o Too intrusive under Place and other precedent because this uncovers completely legal activity within the home

4) Common Law has recognized that the 4th amendment specifically states “home” Text means what it says that home is protected

Where technology, not in public use, gets information from the interior of the home that’s otherwise unobtainable without physical intrusion Search, requiring warrant

o If public commonly used it, may be oko Attempt to protect home in light of advancing technology

Justice Black would disagree with Judicial involvement in determination

o Stevens Dissent: Argues that this is something public could access Even if they don’t have technology, they can see snow melting faster or feel the

heat off of the building Society does not recognize an objective expectation that heat waves remain

private, when they are plainly viewable to public Overall Court has created a few safety valves because they have boxed themselves in with decisions based on the

consequences of needing a warrant, and not getting one…exclusion The Warrant Clause

“…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things seized”o History:

In England, there was a General Warrant Requirement This allowed warrant to be issued if someone criticized government Warrant allowed search of any house, place that had unlicensed material that may be found

o There were no Limits Art. 45, a british magazine, criticized a new tax on cider

Warrant was issued for Author, John Wilkes He eventually sued for trespass and was awarded a huge damages American Colonies were thrilled with him, and agreed with him so much that they named places

after him Willkesbarre, PA Crown Appealed

Lord Camden wrote opiniono He specified that the warrant was too general, and not particular enough of where and

what search would apply to America’s Reaction

Protested the use of the General Warrant in America, disliking the broad reach of it that immunized the government from wrong doing

Wanted a good reason for it, and uplifted Lord Camden’s opiniono Function of Warrant Requirement:

Probable Cause: Creates a threshold level of proof or justification that must exist to get the warrant to search or

arrest Justifies, or makes reasonable a search, seizure or arrest To meet this, must use facts to demonstrate illegality occurring

A Fair Probability that crime is in commission, or there is criminal activityo NOT

Not Certainty, like that required in criminal trial Lesser standard to get the warrant Probable Cause to arrest

Merely, probability that something illegal is/likely to occur The suspect is not present, and does not get chance to object Is not adversarial

Oath or Affirmation: Affiant must swear in, to be held accountable for his representation to court Information committed to court, before search occurs, to prevent any ex-ante backing into reasons

for searcho The whole point is that you had reason (probable cause) prior to search…not that

evidence found after justifies the search in the first place Perceived Legality:

Citizens knowing you have warrant allows for more cooperation Particularity:

Can only search, seize those things that the warrant directs, to those persons, places or things, to which probable cause specifically relates to

o Not just any search or seizure is allowed The Magistrate can limit the scope of search, or time allowed Time Limit Staleness

o Probable Cause to believe evidence is somewhere may be ok now, but may stale over time and evidence may not be there any more

o Staleness not as big a deal with people, as probable cause that they committed crime exists wherever they go

Neutral Magistrate To avoid unjustified Search and Seizure…Magistrate makes fewer errors then officer Allows, neutral, detached, cool, perception of any inference in evidence that there is probable

cause Assits in avoiding excessive intrusion

o Courts View and Explanation of Warrant Requirement: Johnson v. United States:

F- Officers, after getting information from informant, went to a local hotel and smelled opium being emitted from a room. They knocked on the door, and eventually were allowed to enter. They found and arrested ∆.

I- Is the smell of drugs enough to bypass the warrant requirement R-

o The evidence the officers had was most likely enough to get a warrant, satisfying probable cause

o But The point of the 4th amendment is that it requires inference be drawn from

a neutral, detached Magistrate Not an officer in heat of the moment

Just because the officer thinks that the evidence would be enough to probable cause to get warrant, does not waive requirement

This would nullify the 4th amendments purpose Judge’s Role:

Judge determines when right of privacy yields to right to searcho Constitutional Pre-Requisites to obtaining a search warrant:

Requirements: 1) Probable Cause

o Sufficient Quality and Quantity 2) Particularity in Warrant:

o Of Place to be search

o Things to be seized o Person

3) Reasonable Execution 4) Evaluated by Neutral and Detached Magistrate

o 1. Requirement of Probable Cause: “Is there a fair probability that criminal activity is occurring?” Illinois v. Gates

A Fact specific inquiry, that is fluid and not rigid Need Sufficient Quality and Quantity

Quality of the Information in Demonstrating Probable Cause Spinelli v. United States:

F- ∆ was convicted of travelling with the intention of gambling in Missouri. Facts were that 1) he had gone to a hotel 2) he had 2 phones in his house 3) was known by law enforcement as a booky and 4) Informant stated he was doing this…Not many facts other than this (p.91)

I- Do the facts set out allow finding of probable cause to get warrant that was issued? R-

o Aguilar previous case, that dealt with bare bones affadavit which court rejected saying that more was needed to create inference of probable cause

Informant, and other information must be of sufficient quality Aguilar/Spinelli 2-Prong Test:

1) Reliability of Informant?o Has he led to other arrests, accurate before?

2) Basis of Informants Knowledge?o How did he get it?o Detailed?

US v. Draper: If informant extreme detail in future events will make up for lack of basis of knowledge

Informant described, with extreme detail the travel plans and clothes that would be worn…magistrate can reasonably infer that this is reliable and obtained in credible way

o Did He See it?o Was Informants Source reliable?

Hearsay Chain? Corroboration

o If the informant does not meet these two elements, we look to the circumstances and corroboration of evidence that law enforcement investigation showed

Corroboration must be substantial Must Corroborate Suspicious Facts, not innocent

factso What are other allegations in affidavit that corroborate the

hearsay report?o Need to be sufficiently detailed, under Spinelli is a lot of

corroboration o Here

#1 not met: the only thing court knew in facts was that the officer stated “he is reliable” not enough

#2 not met: we don’t know how he got the information, and it is not detailed at all…mere generalities of activity

When not detailed, not sufficient to give inference Was not corroborated strongly

Nothing else that investigation showed was suspicious…these are things that people would normally do

No Probable Cause based on affadavit warrant should not have been issued

o White Concur: If sufficiently detailed, may be able to verify itself that it is reliable Because Informant is right about some things, more probably right about others

o Black Dissent: As textualist, does not think Constitution requires the degree of certainty and

specificity to gain a warrant Thought Aguilar Test was already too much specificity

Post- Spinelli: Officers are presumed to be honest and reliable when making affadavit

o If he states he has first hand knowledge, like he saw it, or saw things: Question becomes, are there sufficient facts to create probable cause in

magistrates eyes? The Source is what comes into question Effects of Decisions:

o After Spinelli, the decision was not received well by policeo Because Anonymous tipsters were unknown, they were essentially useless under the

Spinelli test to show they were reliable at allo Lower Courts were applying Spinelli in varying degrees, some requiring both elements

be met with extreme rigidity and specificity of how informants got their information… Almost always rejected use of anonymous informant

o Rehnquist took it upon himself to clear up a “procedural mess” in the following case Illinois v. Gates:

F- Police got an anonymous tip that ∆ was drug-running, to florida, leaving a car there, and flying back. Then ∆’s husband would drive car back. Investigatory evidence corroborated that, and even saw man leave, and other agents saw him appear 22 hours later in home town (the amount of time the drive takes). Strongly corroborated.

I- Was there sufficient evidence, including the tip, to meet PC requirement? R-

o State Court Strictly applied the Spinelli test, and found that there was insufficient evidence

to get Probable Cause Stated that it is impossible to ever known if anonymous tipster is

credible Wasn’t detailed enough

o Rehnquist Disagrees with Spinelli rigidity

Too strict/rigid for probable causeo It is probability of criminal activity. Not certainty required for

conviction Effect of Spinelli was to chill police application for warrant Impedes Law enforcement: makes anonymous tip worthless because its

impossible to verify credibility Modern Controlling Law : Totality of Circumstances Test

Ask: Is there fair probability that contraband or evidence of crime will be found in particular place?

1. Make a Common Sense Review of all circumstances set forth in the affidavit together

o Take all facts together, not piecemeal o Look at investigations Corroborating Factso Analyzes if Probable Cause from the standpoint of an

experienced officer (Not Laymen) 2. Looking for a probability of criminal activity The Prongs of Spinelli are still evaluated in Totality

o Spinelli still useful in looking at reliability, credibility, basis of knowledge as factors in the totality (not rigid)

3. A strong prong can make up for weak prongo If very reliable, it can make up for lack of basis for knowledgeo If basis of knowledge is extremely detailed, lack of reliability

due to anonymity, or intention is ok Does it predict future events in detail? See Draper (supra) Unusual behavior description That is suspicious If So Makes up for Reliable/Credible

4. Corroboration of the details of informant can be used to fill in gaps of credibility or reliability

o Would a common sense person, suspicious of the tip, feel assured by corroborating facts in investigation?

Minimal Corroboration needed If corroborates activity that is innocent (Unlike

Spinelli which had to be suspicious), assures that tip is truthful

Role of Appellate Courts: Ensure that the magistrate had “substantial basis” to conclude

probable cause existed Very Deferential Review (No longer strictly scrutinizing mag.)

Here: The tip was sufficiently detailed and corroborated to create inference of

probable cause Post Gates:

Corroboration altered: o May corroborate innocent activity …unlike Spinelli

Lowers Threshold of Probable Cause: o Gates lowers threshold of quality of information to infer Probable Cause

States Still Use Spinelli : o Many states, however, have kept the Spinelli test as a heightened requirement

While Spinelli is not controlling law in Federal Courtso Still discuss the factors set forth within, because Gates test considers them as factors that

need to be considered in evaluating informant How Much Corroboration is needed under Gates Test?

US v. Warner o Source that was considered “credible and reliable” stated that ∆ fired a guno Anonymous call next day stated that gun was fired

Mutually Corroborativeo Officer checked registrations, and ∆ had no gun

Magistrate granted warrant finding probable cause under Gates Not that much corroboration is really needed Lack of Corroboration is clear in next case…

US v. Peyko o Anonymous tip came that ∆ was using Federal Express to send and receive drugs weeklyo Agents investigated, and found out that ∆ did use Federal Express regularly

Magistrate found that the tip, with the corroboration was enough probable cause Corroboration gave color to the tip Tip gave color to the corroboration, and

that is enough under Gates Issues:

o There are always issues with informants Paid informants may be setting people up for the money Anonymous Informants While they could be good Samaritan policing the

streets, they also could have malicious intentions and spiteful desires in mind (Many Ex-Girlfriend cases)

Quantity of Information Gates deals with the quality of information provided…Was the informant enough, and were the

corroborative facts sufficient to infer Probable Cause? But How much reliable and corroborate information is needed: What Quantity?

United States v. Prandy-Binett o F- Unmarked detectives saw man get off train station, and hurrying through traffic, and

when he saw them he moved a bit quicker. They went up to him and asked him a few questions, all of which they quickly found of were lies…where he was from, what he was doing etc…After they asked to search his bag, he said no, but opened it and showed them himself. As he pulled things out, a duct-taped, brick showed and officer arrested him.

o I- At what point was there probable cause? o R-

Officers First hand account is reliable Was there sufficient evidence?

Escalating Nature Not while walking, not while quickly walking, and probably not while

answering a few questions wrong which could be misconstrued But, when brick was spotted Probable Cause

Magistrate Reviewing: Analyzes if Probable Cause from the standpoint of and experienced

officer (Not Laymen)o To determine when (what quantity) is sufficient

Dissent: Strongly critiqued “hunch” officers had to approach man, and likened it

to racial profiling Courts general dislike Hunches

o Texas Law Review Article Digression: FISA Warrant:

o Requires probable cause that the person is “agent of a foreign power” Used for foreign intelligence gathering, rather then for law enforcement Sometimes seen to have a lessened standard then normal warrant Application is made to a Panel of Judges

FBI’s Warrant: o Go’s first to the Assistant US Attorney General for approval, who approves or not,

sending it to the court Argues 2 points:

o Probable Cause is a fixed standard, not deviating from case to case o 1) Make Probable Cause a sliding scale, taking into account the gravity of the harm

Could still get the ex-ante benefit by getting police to agree to a limited scope before hand

o 2) Abandon Warrants all together Look solely at reasonableness But does not have ex-ante protection or scope limitations

o 2. Requirement of Particularity: General: Prior to 1967, search or seizure within a warrant was limited to the “Fruits (money) or

Instrumentalities (gun)”… “Mere Evidence” were not allowed to be searched But, the Warren Court Changed This

What can be Searched For or Seized Warden v. Hayden

F- Maryland Court convicted resident of armed robbery, taking his clothes during a search which were used to convict him

I- Can Search for Mere Evidence occur? Rule-

o A Search an be for the fruits, instrumentalities, or other evidence of crime

o Text: Brennan argued nothing in 4th amendment stated anything about mere evidence

o Difficult to draw a line between mere evidence and instrumentality, as sometime one is another in different cases

o Contrary to Framers Intention: Did not want mere evidence searched, because limited scope and protected

property interest… Effect of Warden v. Hayden:

o Pre-Warden, not many paper cases were brought, because it was difficult to search through papers because there was not 1 instrumentality, but many pieces of evidence leading to 1 crime.

o Post-Warden, many more paper cases were broughto Scope Increase: Led to vastly increased scope, even reaching to 3rd parties who may

have evidence o Difficult to apply Particularity

Location of Evidence, 3 rd Parties, and Probable Cause Following Warden v. Hayden, the search for evidence was vast in scope even reaching to 3rd

parties Zurcher v. Stanford:

o F- Police got warrant to search photographer office of newspaper for evidence in photography of someone hitting police. ∆ filed suit arguing 4th amendment breached.

o R- Does not Matter Where Search Occurs as long as PC a Valid warrant may

be issued to any property occupied, or not by a 3rd party, where there is probable cause to believe a fruit, instrumentality or evidence of crime will be found

Need Probable Cause to believe located there

First Amendment Concern: Court quickly dismissed first amendment worry, saying that Magistrate

can limit scope to keep first amendment concerns in mind Alternative to Warrant:

Could have issued: Subpoena Duces Tecum : subpoena to bring things in to court

o But worry that suspect may be able to reach, destroy, evidence…

Motion to Quash: allows you to be heard in front of court, protecting your 1st amendment rights

Note: Post Zurcher: Congress enacted Privacy Protection Act of 1980

o Law Enforcement cant search or seize work product of media unless:

1) Probable Cause to believe member of media committed crime or

2) Unless necessary to prevent serious bodily injury or death

o Cannot gain through Subpoena Duces Tecumo Law Enforcement can search “other materials”

What someone has given media Can order Subpoena Duces Tecum

An Example, again, of Congress ratcheting up protection of people, where Supreme Court has set a floor

Limits Warden v. Hayden’s application to Media Particularity Requirement of the Warrant:

Idea:

o 1. Is to restrict scope of Officer, avoiding General Warrant problemso 2. Establishes record of where there is probable cause prior to search

Arrest Warrant:o Must describe person to be seized…arrested anywhere (See infra)

Search Warrant:o Location: Must be particular description of place, with address and apartment number,

color of house, description of outside, etc… Apartments are each, individually, its own dwelling: Separate Warrant for each If you can search a house, you can search the Curtilage Includes vehicles within the Curtilage (US v. Evans)

o Things to be searched or seized: Must be particularly described within the warrant. Catch All Phrase:

Some Warrants will describe in detail the many things they are looking for, and then, the last term will say “anything else unknown evidencing the crime”

o Court has allowed as being modified by previous list Ejesdum Generis

Andreeson v. Maryland: Broad catch all phrase was in reference to the crime stated therein, not

any crime Therefore A Catch all phrase may be acceptable to search for “mere

evidence,” while meeting particularity requirement o Severability:

If some clauses are sufficiently particular, and others are not, the overbroad clauses will be severed from those that are not.

The Warrant and search will be evaluated from the basis of the clauses that are acceptable

o Staleness: Magistrate may circumscribe location or time to execute search warrant to

combat issues of items sought becoming stale Probable cause, within a warrant granted by a magistrate may stale over time, or

slowly erode in reasonability…depending on the nature of the crime, the time period that probable cause lasts may continue to exist, or dissipate rapidly…

Marijuana growth—may lost longer Stolen items—may be shorter

Example of Tab-C: o Probable Cause Quality ok under Spinelli; a fortiori under Gateso Particularity:

Limited in Days Prevents Staleness Rules of Constitutional law embodied in Federal Rule of Criminal Procedure 41 (e) 2 (a):

A. Warrant must identify person or property searched, or seized, and designate which magistrate it is to be returned to

B. Officer must:o 1. Execute Warrant within specified time, no longer then 14 days (Staleness)o 2.Execute Warrant only during day time (6am-10pm), unless Judge for good cause

expressly authorizes exception Note:

Searches for Narcotics are allowed whenever, without need to show good cause

o 3. Return the Warrant to the Judgeo 3. Executing a Warrant:

General: Police have a large discretion in how to execute a warrant there is very little case law on the

subject

Must be reasonable Destruction of Property:

While within the property where a Warrant has been authorized, must be reasonableo But the scope within a premises extends to the entire area which the object of search may

be found…cabinets, containers, locked doors is reasonableo Subject to Magistrate restricting scope

Buckley v. Beaulieu: o Court held that it was unreasonable under the circumstances to search for alcohol within

the dry-wall by tearing it out. US v. Weinbender:

o Court found it reasonable to search for clothes that would have been tied to ∆’s crime within the dry wall. They removed a small piece, that was quick to remove, and had information that the ∆ used hiding spots…so it was reasonable

Intimidation Device/ Flash Bang: US v. Meyers:

o The Use of a flash bang to enter an alleged drug dealers house, who had prior convictions of drugs, bombs and weapons, was reasonable

o Court evaluates from position of officers on scene If Execution of search warrant is unreasonable, is that evidence excluded?

o NOo US v. Jones:

Use of the flash bang would only have affected the suspect’s ability to destroy the evidence…so it only slowed him down

During Execution of Search Individuals there may be detained: Michigan v. Summers:

o The officers may detain individuals, preventing them from leaving to prevent flight if evidence is found, minimize risk of danger to officers,

o 4. The Screening Magistrate: Purpose:

1) Analyzes the Quality and Quantity of Evidence for Probable Cause 2) Analyzes the Particularity 3) Circumscribes the Scope of Search 4) To be Neutral and Detached, evaluating all evidence

At some points, however, the neutrality of the Magistrate may be challenged Neutrality:

1) Coolidge v. New Hampshire: o The Head of law Enforcement for state could not be the neutral and detached

2) Connelly v. Georgia:o Paid per warrant issued, and not paid for not issuing was not neutral and detached

3) US v. McKeever: Magistrate was reserve policeman, husband was an officer and visited the site of the search Held, although peculiar, ok and not enough to show lack of neutrality

4) Lo-Ji Sales v. New York: Magistrate assisting in the search was not neutral and detached Legal Training Not Required:

Shadwick v. Tampa: o The Court allows non-lawyers to issue warrants for arrest for minor legal offenses

Court argued that they were neutral and detached Also, lay people sit on grand juries, and trial by jury to assess guilt, which is

much more significanto There is Check on Magistrate though

Motion to Suppress will get Court to evaluate Probable Cause…if not, evidence will be excluded, but if ok proceed

Rubber Stamp: While Warrants are granted in high percentage, it is difficult to argue that Magistrate is not evaluating facts, or solely acting as rubber stamp

Either Court is simply always approving, or Police are meeting the requirements

Exceptions to the Warrant Clause :o Generally:

Court has held that a search or seizure is presumptively unreasonable without a warrant But there are many exceptions

o Some require only probably causeo Others permit search or seizure without probable cause or warrant

Reasonableness Applieso 1. Arrest in Public:

A. General: America is unlike many societies, in that it begins criminal process by arrest Why do we arrest?

o 1) Incapacitate danger to publico 2) Make sure they have you, versus you fleeingo 3) Interrogateo 4) Prevent destruction of evidenceo 5) Punish

* By far the biggest reason we arrest B. Officer has Discretion to Arrest

A question of why it is ok to detain someone, instead of issuing a summons for them to appear in court

o Prior to Atwater, Gustafson concurrence mentioned that it may be unreasonable, and against the 4th amendment to arrest someone for minor crime

Atwater v. City of Lago Vista: o F- Soccer Mom was arrested for a seatbelt violationo R-o “Custodial Arrest is always reasonable if the officer has probable cause of a

criminal violation, and statute allows it” Does not matter the severity or minority of the crimethis would hinder police

in determiningo Police have great discretion to determine if they will arrest then

Note: Some Jurisdictions have mandatory arrest for certain crimes This may, arguably, take out the discretion of police to evaluate a

situation and determine a preliminary course of actionArrest, Ticket, or leave it be

C. Arrest in Public only needs Probable Cause United States v. Watson:

o F- Informant was used in sting operation to set up ∆, who was arrested and when he consented to search, it turned up stolen credit card.

o I- Does the 4th amendment require warrant to arrest?o R-

Common Law: The rule at CL was that no warrant was needed Not based on Exigent Circumstances

Do not have to exist in order to bypass warrant. Judicial Economy this would burden litigation over whether or not

was exigent Arrest in Public only requires Probable Cause and Does Not Require a

Warrant

D. Excessive Force and Arrest While Arrest does not need a warrant, it can be unreasonable Deadly Force:

o Tennessee v. Garner: F- Police were chasing suspect, and shot and killed him Deadly Force cannot be used to prevent escape, unless:

1) Necessary to prevent escape and 2) Officer has probable cause to believe suspect poses a threat of

serious injury or death to officer or others Note:

Here, unlike Watson, rejects the CL view that deadly force could be used…premised on the idea that Felons were extremely dangerous then, but felonies now vary greatly

Force in General: o Grahm v. Connor:

All claims of excessive force are under 4th amendment reasonableness Graham Factors to Evaluate Force:

o 1) Severity of the Crimeo 2) Suspect Poses immediate threat to officers/otherso 3) Actively Resisting arrest

High Speed Chase: o Scott v. Harris:

F- ∆ was fleeing in his car at high speed for 10 miles, when they rammed his car and he was injured…Is this unreasonable?

R Officials can attempt to stop fleeing motorist from continuing to

endanger public by ramming his car, even if risks fleeing motorist of injury or death

o Not Unreasonable culpability of suspect v. innocence of public

E. Protection from Warrantless Arrest Generally:

o While Watson allows arrest with only probable cause, determined by officer, this can lead to problems

Over zealous officer, “competitively ferreting out crime” may be mistaken in finding Probable Cause

o So, while warrant not needed to arrest Post-Arrest Protection is Gerstein Hearing Gerstein v. Pugh:

o Following Arrest “Prompt post-arrest assessment of probable cause by magistrate”

Note: Like hearing to get warrant, the post-arrest hearing is not adversarial

and cannot be heard simply determination of Probable Cause Just want same protection that would had occurred had warrant been

obtained o County of Riverside v. McClaughlin:

F- County allowed post-arrest hearing to occur up to 7 days after arrest. Was this Constitutional?

R Judicial determination of probable cause within 48 hours is

prompt, and presumed reasonableo Can still be unreasonable, and unconstitutional if individual

can prove they delayed to gather evidenceo But Court, in evaluating, should be flexible in understanding

the day-to-day procedural issues an backupso Can combine Gerstein hearing with other proceedings, if

within 48 hours If does not occur within 48 hours, presumed unreasonable unless

government can prove bona-fide emergency or extraordinary circumstance

o Scalia: Arbitrary number…should be 24, as states have already been using that

o Overall Gersterin Hearing determines if there was Probable Cause at the time of the

hearing Not arrest Why?

o Because, if there was not PC at time of arrest, and evidence has developed, they’d just issue an arrest warrant for you then, and there.

o 2. Arrests in Home: A. Arrests within Suspects Home require an Arrest Warrant Peyton v. New York:

F: After investigating for 2 days, detectives assembled enough evidence to infer probable cause of murder. They then went to ∆ house to arrest, but did not find him, and instead found 1 gun-shell – admitted as evidence.

I: Does Warrant need to be issued to arrest in home? R:

o Yes To arrest within your home, need Arrest Warrant Home has always been viewed as special, private place 4th amendment draws a bright line at the entrance of the home

o Arrest Warrant Needed Requires Magistrates’ determination that there is probable cause to arrest

particular person Does not Require a Search Warrant

A Search Warrant requires Magistrates’ determination that there is probable cause to arrest particular person located in a particular place

This could stale, if person is not within the home Arrest Warrant allows arrest on sight and to enter home if there is

reason to believe suspect is within home

What is Reasonable Belief that Suspect is Home?o Arrest warrant needed, and can enter home if reasonable to believe he is within Up to

the Officer to determineo United States v. Magluta:

Determined that the facts and circumstances must be viewed in totality to determine if there is “reasonable belief” suspect is within home

Courts reviewing should be sensitive to on the spot determination by police Common Sense Factors showing reasonable belief ∆ is present

Here: Lights on, car in driveway… Areas Courts have Considered “Home”:

o 1. Homeless Persons “Box” Split of Authority

A. Courts are split on applying Payton, some saying that it extends flexibly to a homeless persons living space

B. Others say that Payton simply cannot reach because isn’t “home”o 2. Hotels and Motels

Payton Applies with equal force to a properly rented Hotel or Motel Room So Arrest Warrant is needed

Note: If expelled, or excluded from building, public arrest without warrant is

ok A. Common Hallway Arrest:

o United States v. Holland:o Police Buzzed Hotel/Condo, and man came out of his hotel

room, into the public common area of hotel and was arrestedo Held: He was not within his home, but was within the public

area, so Public arrest only needs probable cause o 3. Overnight Guests

Minnesota v. Olson See infra

o 4. When Arrest at One’s Home is Public or Private Split of Authority: If the Police announce presence at your home, and ∆ opens door:

1. If arrested on the opening of door, considered by some courts to occur within the home Arrest Warrant was needed

2. If officer stays outside, and informs ∆ he is to be arrested, public arrest

o But, Option 2 risks that officer may have entered home, and therefore needed a warrant

o Option 1 avoids a need to distinguish, simply saying if within threshold of door as arrested, its within home and arrest warrant needed

Payton Violation: o US v. Harris:

A violation of Payton, meaning an arrest within suspects’ homes without an arrest warrant is not and illegal arrest, as long as officer has probable cause to arrest

It Is an illegal search of the home So officer can arrest with probable cause, but may face excluding all

evidence… Note

o Protection of the HOME is heightened, and not the person

B. Arrests in the home of a 3rd Party Require Search Warrant Steagald v. United States:

o A Search Warrant (Magistrate determines if there is probable cause to arrest the person in the particular location (3P Home) within particular time) is required

o Why?

Heightened Protection of Search Warrant is Necessary Otherwise, the less protective Arrest warrant would lead police into anyone’s’

home to search for suspect Like General Warrant This is to protect the home of the 3P, not suspect

o Standing Issues: While a 3P can argue that an arrest warrant is not enough for him in his house,

the suspect arrested within a 3P’s house, pursuant to an arrest warrant, cannot argue his rights have been violated

It would be an Anomaly to allow suspect less protection in his own home, and more protection in a 3rd Parties’ Home.

As Visitor, under Carter may not have standing

Framework to Evaluate What type of Warrant is Needed: o 1. If At Home, or Lives at a 3P Home

Arrest Warrant required Standing to object to search of home Standing to object to arrest—although it is ok with PC (Payton

violation is not an arrest)o 2. If Overnight Guest in 3P home

Minnesota v. Olson: Had expectation of privacy, that society accepts as reasonable and therefore

Arrest Warrant required Standing to object to search and arrest

o 2. If temporary visiting in 3P Home Search Warrant is Required

No Standing for visitorStanding for Homeowner o 4. If Temporary Visitor (Invitee, simply permitted on premises for hours..)

Warrantless arrest of visitor is ok…they don’t have standing To Determine of Temporary Visitor or not Minnesota v. Carter:

To Determine if ∆ is Temporary Visitor:o 1. Social or Business Purpose of Visit?o 2. The Duration of the Visit

Relatively short period of time? Here, few hours was short enough

o 3. Connection with the homeowner? Lack of previous connection shows temporary

visitor… 3. Stop and Frisk:

o Quick Synapses: There are 3 Categories of Police-Citizen Contact:

1. Arrest and incidental search o Requires probable cause and search is unlimited

2. Terry Stop and Frisk o Requires reasonable suspicion and search limited to weapons, not evidence—may

become arrest (Requiring PC, without which/only RS violates 4th) 2. Encounter

o Requires no standard of proof, no search allowed, but may become stop/frisk (requiring RS, without which violates 4th)

o 1. Terry v. Ohio : One of the most important cases F: Officer was in plain clothes, observing suspects, as they talked and repeadetly walked to and from a

store, in a terrible part of town as they seemed to be “casing” the store. Officer testified that he couldn’t say exactly what attracted him, but after 39 years, he knew they were up to something. He walked over, and after a BS answer they gave him spun Terry around, patting him down and finding a weapon. Terry wanted to suppress evidence.

I: Does 4th amendment allow a stop and frisk? R:

Officer may stop and frisk with reasonable suspicion The Warrant Clause does not apply here

o This scenario needs to swift and quick a determination and on-the-spot observation would be practically impossible

Reasonableness Clause applieso Balance the governments interest in crime and officer safety with the publics interest in

freedom from intrusiveness Prevention of Crime is weighty and allows a stop Police Officers Safety is weighty and allows frisk Reasonableness balancing is more flexible, requiring a balancing of interests

o To Stop, a reasonable suspicion is requiredo To Frisk, reasonable suspicion of being armed is required

Requires specific and articulable facts/reason to stop and frisk Judged by an ordinary reasonable person The Frisk is only allowed for the safety of the officers, and is limited to what

may reveal danger But the frisk cannot be as intrusive as a search If something is found during the frisk This may lead to probable

cause to arrest…and then a search, incidental to arrest (We will discuss later)

Here: o What they were doing was suspicious to an ordinary reasonable person, giving them

authority to stop (Court said if an officer didn’t stop, would have been against his duty, that’s how suspicious). Reasonable suspicion to frisk as well as danger to officer, the area, and what they may have been doing would be reasonably suspicious they may have a gun.

Harlan (Concur): o Argues that once the stop is constitutionally ok, the frisk should be an automatic right

Officer safety is the key attribute White (Concur):

o Police do not need constitutional authority to question…they may, but people do not have to stop and answer

o However, if reasonably suspicion, may question and briefly detaino Post Terry:

Use of reasonableness balancing approach expanded beyond stop and frisk Greatly expanded the scope of police power and discretion Creates Escalation Effect:

A stop, with reasonable suspicion can lead to a frisk finding weapon, giving probable cause to arrest, leading to a legal search…

o Suspicion gradually increases…into probable cause to arrest o Terry Applied: Adams v. Williams:

F: Officer was in car when man, whom he knew walked up and gave him tip that someone down street had gun and drugs in car. He walked over asked to open door, man rolled down window. Officer reached in where gun was said to be, grabbed it and arrested man. Search incidental to arrest revealed drugs.

I: Was this a constitutional stop and frisk under Terry? R:

Informants Tip can lead to Reasonable Suspiciono Was reliable, not anonymous, and enough specifics to justify a stop Was reasonable

suspicion Reasonable Suspicion to Stop and Frisk

o High crime area, at 2 am, with informant’s tip reasonable suspiciono When guy didn’t comply, furthered suspiciono Complied with the limited intrusion to reach where he was told a gun would be

o 2. Terry Stop and Vehicles: Application to Driver Pennsylvania v. Mimms:

F: Officer stopped the ∆ for a traffic violation, and asked ∆ to get out of the car—noticed a bulge in the jacket and frisked him, finding a weapon.

I: Does Terry permit an officer to ask suspect out of the car? R:

o Under Terry, an officer can automatically order driver out of vehicle Reasonableness Balancing:

Safety concern of the officer: When ∆ outside, officer can observe the movements, making him safer, or to leave traffic to talk to him in person avoiding collision.

Balanced against Extra intrusion of stepping out of car: Court considered this de

minimus, as the suspect was already legally seized and visible to officer—only had to expose himself a bit more only mere inconvenience balanced against safety to officer

Court Policy: If they had not ruled that police could order suspect out of car, police

may either use discretion to arrest for minor offense, or end stopping cars all together out of fear

Application to Passenger Maryland v. Wilson: Court held that Mimms applies automatically to passengers, as well as drivers

o Officer can automatically order passenger out of vehicle o Reasonableness Balancing:

Safety concern of the officer and more then 1 person in the car exacerbates concern of officer

Balanced against Intrusion to the passenger, but while the passenger may have to deal with a bit

more of stronger inconvenience, he is already legally stoppedonly change is that he steps outside

Arizona v. Johnson: o Court held that Mimms, applies to passenger, but to frisk passenger, Terry applies

and reasonable suspicion is needed of “armed” to frisk New York v. Glass:

o F: Officer lawfully stopped car, and asked ∆ to step out. This was ok under Mimms. To read the vin number, however, officer reached hand into car to move some papers away from that spot—found gun.

o I: Is this acceptable under Terry, or an unlawful search?o R:

Court held that officer reaching into car to clear away papers was acceptable Reasonableness Balancing:

o The officer’s safety did not require that he allow ∆ to reach into the car. Mimms allows a person to be reasonably detained outside of car

Terry is expanded, in part, to administrative search theno 3. The Line Between Stop and Encounter

A. Generally: An officer can “encounter” a citizen for any reason, or no reason

o The 4th Amendment does not apply A Stop, however, is a seizure and requires reasonable suspicion The Question becomes When does an encounter become a stop?

B. “Free to Leave Test” United States v. Mendenhall:

o Stewart’s concurrence Has been assumed by lower courts and Supreme Courto You are only seized within the meaning of the 4th amendment if:

In view of all circumstances, a reasonable person would not have believed he was free to leave

If you were free to leave Encounter If not Stop, and reasonable suspicion was required Factors Considered:

o An Encounter (Free to leave): Questioning anyone is not a stop… Polite discussion Informing them they have right to leave (Although

not required… under Bostick/Dreyer) Police standing near exit has been held to be

encounter (INS) Badge, and gun simply being on belt, in holster is not

Stop…inherent coercion isn’t stop (Dreyton) The arrest of a person near you does not create a stop

for you (Dreyer)o A Stop (Not Free to leave, must have Reas. Suspicion):

Look to Coercion Many officers’ threatening presence Weapon Drawn Physical Touching Threatening Tones or orders Obstructing movement Keeping Identification, Ticket, luggage, etc… Exit Blocked may be stop (INS, Dreyer)

Arguably: o No citizen ever feels free to leave…police are intimidating, just with their belt aloneo Inherent coerciveness leads to this seeming to be a legal-fictiono But, if Officer had to have reasonably suspicion to talk to everyone, it would hinder day-

to-day activities o Court, through totality of circumstances, lets evaluate…rather then saying “police can

stand x feet away from door, but not y”…would create litigiation nightmare Judicially Economical

o More a function of ‘exigent circumstances’ C. “Free to Leave Test” Applied:

INS v. Delgado: o F: While at work, INS agents entered and stood near exists, while other agents walked

around simply asking questions to potential illegal immigrants. If answered, they’d leave, but if they wanted to, they may ask more questions

o I: Was this an encounter, or a stop requiring reasonable suspicion?o R:

This was an encounter, not a stop Merely questioning is not a seizure Were at work, so they would not leave anyway, and agents at exists

had no effect as coercive United States v. Cardozo:

o F: Police saw ∆ late at night, with friend, drove wrong way down one-way street, rolled down window, and began talking to ∆. ∆ answered and walked over, and accidentally exposed a bullet in his hand. Officer got out, stopped, frisked and found gun.

o I: Was the initial contact a stop?o R:

This was an encounter, not a stop There were no lights, sirens, officer stayed in car, ∆ came over on his

own, his liberty wasn’t restrained at all…he was free to leave

D. Modification # 1 to Mendenhall: In certain limited spatial circumstances, the “Free to Leave” test does not apply because leaving

isn’t an option Florida v. Bostick / United States v. Drayton:

o F: Officers entered bus, 1 stayed at exit, and 2 went down aisles questioning people. They asked ∆ questions, noticed his long baggy clothes in summer in florida, he consented to bag search, and found drugs. ∆ argues that he was stopped without reasonable suspicion, and drugs are not admissible then.

o I: Was this an encounter or a stop?o R:

Bostick held that in certain situations, “Free to Leave” doesn’t really apply literally, because on bus, elevator, subway, the person cannot really leave

New Test, in limited Circumstance Did the police conduct communicate to a reasonable person that he

was not free to decline officers requests, or terminate the encounter?

Here: Factors evaluated, politely questioned, aisle was open to walk…ORP

would have felt free to terminate The arrest of 1 person near you is not coercive

The Police do not have to inform you of your right to decline request E. Modification # 2 to Mendenhall:

What happens when a person flees the police…does his fleeing constitute a stop at the point of flee? Or No?

California v. Hodari D. o F: Officers walked up to black youths in group, and one of them immediately began

running. The officers pursued him and saw him throw something. He was subsequently arrested. The item was crack-rock. He argued he was stopped at pursuit, they didn’t have reasonable suspicion and therefore crack not admissible

o R: 2 Types of Stops:

1. Non-Physical Authority/Coercion not stop until submitso A suspect is not stopped until

1. The reasonable person would not feel free to leave

2. And, the person actually submits to the authority (Additional prong to Terry Test)

So suspect running away from police is not stopped until they submit

Note: See infra on running and reasonable suspicion If a suspect does not submit 2. Physical Touching

o Not a stop until “touched”o Automatically becomes a stop when officer touches person

Reasonable Suspicion Required o But, If person breaks away the stop ends and encounter again

Overall: o These two modifications expand the authority of an officer to investigate in an encounter,

free from the 4th amendment requirements o Notice If person does not submit, it is not a stop until they submit or touched

o 4. Reasonable Suspicion: To Terry Stop, officer needs reasonable suspicion If an encounter turns into a stop, and there was no reasonable suspicion—violates 4th amendment A. The Test (United States v. Cortez):

Officer must have a particularized, articulable and objective suspicion of criminal activity

Totality of the Circumstances o Common sense analysis of all facts presented o Evaluate all facts together, even though 1 fact alone may be innocento Defer to police expertise, who have more experience of certain facts as indicator

Not the same level Probable Cause: o Reasonable suspicion is less demandingo Is there a possibility of criminal activity?o Is not at PC level, and very far below preponderance…just possibility

Do not have to rule out innocent conduct (Arizou) B. What Factors are within Totality of Circumstances?

Overall: o Officer Experience + Facts = Reasonable Suspicion

1. The Person Suspicious Activity of Person fitting descriptiono A. Size of Population

If more people, may have to be more particular If less people, less particular

o B. Race “Racial Incongruity”

St. Paul v. Uber: White man was down town, in an area known for prostitutes

o Race, alone, is not “Reasonable Suspicion”o May be taken into “totality of circumstances,” but not only

factor US v. Wilson:

Only black male on flight from LA to KC, with knowledge that gangs from LA have been trafficking drugs to KC was enough for ‘reasonable suspicion’

2. Conduct Suspicious Conduct:o A. Time of Day—something at one time, may be more suspicious at another

Night versus Dayo B. High Crime Area—will be used within totality of circumstanceso C. Failure to Cooperate in encounter, alone, is not enough to create reasonable

suspicion: Florida v. Royero D. Nervousness can be used, but must be understood that little bit is typical

3. Use of Profile: o Profile: A list of characteristics compiled by the police, which is created through

experience—understood as common traits of those engaged in type of criminal activity Typically used in drug/drug trafficking

o US v. Berry: Profiles are a tool of police

It is part of the the totality of circumstances Just because you match doesn’t give RS But if you do match, it can be used to justify RS

o Profile Example of Drug Courier: Arrival/Departure from source city, 1-way ticket, little/no luggage, empty

suitcase, unusual itinerary, rapid turnaround time after long tripo US v. Sokolow:

Reasonable suspicion where—plane ticket paid for in $2100 cash, name didn’t match telephone #, Hawii to Miami (20 hour flight) sayed for 2 days, no luggage, very very nervous…

Use of profile factors is acceptable 4. Flight from the Police:

o May be a factor taken into account within Totality of Circumstances analysis o Illinois v. Wardlow:

While standing alone, in high crime area will not be enough to support a reasonable particular suspicion

Unprovoked flight from police in high crime area may be enough… Location & Fleeing, in a high crime area suggests wrongdoing

C. The Factors may be overbroad to form Reasonable Suspicion: US v. Beck:

o Using profile with factor that “California” is Source State is too broad, and not sole justification in considering reasonable suspicion

However, can be used as 1 factor of many…o Differentiate between factors, and 1 justification…

D. Innocent Parties may be stopped: Terry permits a stop of a person, if there was reasonable suspicion

o Just Like arrest with probable cause of innocent people Both Doctrines accept the chance of this occurring Terry is minimally intrusive, and therefore the lower threshold is justified

o If there isn’t probable cause Go about your business E. Example of when there was Reasonable Suspicion: F. United States v. Arizou:

F: Near Mexican border, a back dirt road’s sensor go’s off, police went that direction, saw mini-van, on a 4x4 road, driver didn’t look at officer, children in back were waving oddly, and their legs were raised as though they were on something, registered to an area that was high crime. Stop revealed $100,000 in marijuana

R:o There was reasonable suspicion to justify a stopo Totality of Circumstances shows objective, particular basiso Defer to his experience and training in that area

o 5. The Scope of a Terry Stop (Seizure) and Terry Frisk (circumscribed protective search): A. Terry Frisk can only be used for weapons and protection of officer:

Minnesota v. Dickerson: o F: Officer patted down for guns, found a rock and began probing it with his fingers until

he pulled it out—was a crack rock.o R:

Frisk is only justified for protection purpose of officer safety Once there is no danger of weapons, Terry’s circumscribed scope of frisk

ends May not be used to search for evidence

B. Terry Frisk Requires Reasonable Suspicion: Under Terry, you need reasonable suspicion to stop and frisk US. v. Rideau:

o F: Officers saw man whom they had reasonable suspicion to stop for being drunk in public. He acted nervous, and backed away at which point officer moved forward and frisked, finding a gun

o R: Frisk Need a Reasonable Suspicion to believe there is a threat of harm Apply Reasonable Suspicion Totality of Circumstance Test:

Here, was extremely nervous, walking away from stop, in high crime area, in the middle of the night 3am—there was reasonable suspicion to believe threat of harm, weapon drawn

Reasonable Suspicion to Frisk will be based on stop of suspected crime:o 1. If there is reasonable suspicion of a violent crime, with weapon

There will automatically be Reasonable Suspicion of threat to frisk Same Reasonable suspicion to stop carries over

o 2. If there is reasonable suspicion to stop for drug distribution Likely to be connected with violence and weapons [US v. Brown]

o 3. If there is a non-violent, financial crime, shoplifting, etc…

Less likely to have reasonable suspicion to frisko Factors evaluated in Reasonable Suspicion to Frisk:

Bulge that appears to be weapon Sudden movement toward where weapon could be Previous violent activity known to officer Aggressive and violent behavior Number of suspects compared to number of officers Area and Time of day

See US v. Rideau, supra C. Inspecting Objects during the course of a Terry Frisk:

Minnesota v. Dickerson: o Can inspect object if reasonably likely that it is a weapon

US v. Swann: o F: Officers responded to theft of wallet—officer saw black man resembling description in

basement…1 officer was circled by 3 men—he felt threatened, cuffed them and patted them down…found a hard object in sock and pulled out. It was stolen wallet

o R: Can item be reasonably justified as a weapon?

Location, shape, and size of item come into decision, hard to touch Here—the square object was in socks, similar in size to blade, so

reasonable suspicion to inspect as weapon Reasonable in light of officers safety, otherwise would leave a

potentially dangerous weapon to upset suspect Container on Person:

o US v. Miles: If container could not have contained a weapon then it is impermissible search Based on Michigan v. Long reasoning, officer may open a container that may

contain a weapon because if returns unopened, risk that he will be harmed when it is returned

C. Terry Frisk of Persons other then the suspect Ybarra v. Illinois:

o The mere presence of a 3P in the vicinity of an arrest is not enough to frisk themo To frisk Need reasonable suspicion there is threat of harm

D. Terry Frisk (Search) Extends Beyond the body of the suspect to near the person: Michigan v. Long:

o F: Car was swerving, ran into a ditch…Officers stopped long who was then outside of car, acting very intoxicated, and he refused their requests…he began to walk towards the trunk to open it. Protective search of trunk revealed a knife, and in the meantime large amount of pot

o I: Does Terry justify this search with reasonable suspicion?o R:

Terry permits limited exam of area, which a person whom the police have a reasonable suspicion is dangers, might gain control of weapon

Even if he cannot reach it then, because stopped, when the stop is over, he could then gain access to it, potentially harming officers

May search where suspect could gain access to a weapon when stop over, if reasonable suspicion

Note:o Only applicable to weapons/danger Not evidence

Adequate and Independent State Ground: This case also decided that if a state case was devided solely on state

constitution Supreme Court had no jurisdiction Court presumes, however, that the state’s basis for decision is the

federal constitution, unless state court “makes clear” it is deciding on

state constitution, which has an “adequate and independent state ground”

o Note: Many states have ratcheted up protection from Michigan v. Long, not allowing

search of area near…make clear its under state constitution US v. Brown (Michigan v. Long Applied)

o F: stopped for reasonable suspicion of drug activity, and officers searched the glove compartment that was locked.

o I: Does Long allow search for weapons, if reasonable suspicion to believe there suspect could gain control of weapon when stop over?

o R: Yes Drugs are associated with guns and violence Because they coincide with drug activity, reasonable suspicion of a weapon

existed, and Long allows search where one could gain access when stop done Note:

o See above, but it may be more likely that reasonable suspicion exists ‘near’ person if drug activityassociated with violence and weapons

Long extends beyond Vehicleo US v. Johnson:

F: Suspect under Terry stop had overalls a few feet away. Police had reasonable suspicion they may contain a weapon, such that if stop ended they would be harmed by his gaining access to it

R: Under Long, Terry Frisk (search) of those overalls was acceptable E. Protective Sweeps of an area

General: A protective sweep is ‘a quick, limited search of the premises, incidental to arrest or consent to search, conducted to protect the safety of the officer or others’

Maryland v. Buie: o F: Officers had arrest warrant for the ∆ and an accomplice, having probable cause that

they had committed armed robbery. They arrested him at his house, and did a “protective sweep” of the area for the accomplice.

o R: A protective sweep can be justified with reasonable suspicion that an area

harbors an individual posing danger to officer or others Reason:

o Reasonable balance between the ‘remaining privacy interest of the arestee’ and the ‘interest of the officers safety’

o Heavy interest in Officer Safety Can last no longer then necessary to dispel the reasonable suspicion of

danger Protective Sweep may occur other then during arrest too

o United States v. Gould (5 th Cir): Officers were given consent to search a specific room, and did protective sweep

of house reasoned by ‘their reasonable suspicion the area harbored an individual who may ambush them’

Officers, if acting during legal conduct, and have reasonable suspicion to believe area harbors dangerous individual posing threat to officers, they may protective sweep the area

F. Brief and Limited Detention under Terry: General:

o At some point, a Terry stop may be beyond a ‘mere stop’ and become an arresto The arrest is more intrusive, and requires probable cause more then reasonable

suspicion

The following are several factors courts have looked at to distinguish when a stop becomes an arrest, requiring probable cause

1. Stop does not allow Forced Movement of suspect to custodial arrest area: o Florida v. Royer:

F: police stopped Royer, and took him to a small, custodial room, with all of his bags in the airport. They questioned him, in a small custodial interrogation room. Officers kept him there, trying to get him to consent to a search.

R: This was an arrest, but they had no probable cause Transfer to a custodial arrest area requires probable cause

o Terry does not allow ito Police Car:

Putting someone in a police car to question, or investigate further may become an arrest, requiring probable cause

2. Stop does not allow Transporting to Station house/ Custodial area to interrogate and fingerprint

o Dunaway v. NY: Police may not detain a suspect, transport him to police station to question

without probable cause to arrest Brennan: Custodial interrogation, without probable cause is an extreme

intrusion on privacy interestso Davis v. Mississippi:

Police may not detain suspect to bring to police station to fingerprint him there Even though it is less intrusion then other search, interrogation and

fingerprinting is beyond what reasonable suspicion allows 3. Forced Movement for identification Purpose May be Ok:

o legitimate interest in moving someone may be permissible if short distance to identify them by an eye-witness if reasonable suspicion exists

People v. Hicks: Travelling 1 minute, ¼ mile by car to and eye-witness is acceptable if

there is reasonable suspicion 4. Forced Movement for Purposes of Safety and Security are ok:

o Royer stated this proposition Generally, this means movement into car for weather, or other safety of person

while on side of busy road, etc… G. Interrogation Techniques are Permissible:

Generally: o The Terry stop is investigatory in nature, to investigate a situation to determine whether

there is criminal activityo Preliminary investigation, then, is acceptable

Technique:o 1. Questions directed at suspicious activity, or circumstances giving rise to the stop

In Traffic Stop may Request ID, check the VIN #, license check, outstanding warrant check

o 2. Identification: Hiibel v. 6 th Judicial Circuit Court of Nevada:

F: State law criminalized failure to show identification R: Court held that, under Terry, officer has automatic right to demand

identification as part of investigationo Reasonableness:

The states interest v. inciental interest against intrusion

Identification can prove if or if not the suspect, show he is or isn’t wanted and is immediately related to Terry

o State law may criminalize failure to give identification

o 3. Fingerprinting on Scene Florida v. Hayes:

Court has held that brief detention in field to fingerprint, with only reasonable suspicion is acceptable

Policy Question: DNA ? Courts have allowed Seems to be the same argument as ID, and Fingerprint…merely id,

although more sufficient in identification Depends on technique…more intrusive, amy be more akin to bringing

someone to station If quick, or quicker then fingerprint…maybe ok

H. Time Limits On Terry Stop: US v. Sharpe:

o F: DEA agent saw 2 cars that were suspicious, followed and eventually they split up. He stopped one, and a state trooper stopped the other. They were each held for 30-40 minutes while the 2 officers tried to locate one another—eventually, marijuana was found.

o I: Was this beyond the time limit on a Terry stop?o R: NO

Whether the police were reasonably diligent in pursuing means of investigation that were likely to confirm or deny their suspicion quickly, during which time it was necessary to detain ∆?

Here There was no delay, and officers acted reasonably diligent—what they

did was necessary and there was no quicker way the officers failed to pursue

Courts have generally been deferential to Police, in considering whether they acted “diligently”o United States v. Davies:

Court upheld a 45 minute detention, where new officers were waiting for advice from more experienced officers

I. Show of Force During Terry Stop : Use of handcuffs and the use of guns, in stop with Reasonable Suspicion is ok

o Must be Reasonable Depends on the circumstances if Reasonable

Nature of stopped-for crime If reasonable suspicion to search for weapon

J. Detention of Property under Terry Generally:

o Original understanding of Terry was a stop of a person, and frisk of that person for weapons

o However Terry now extends to stop of property Police may stop property with reasonable suspicion of criminal activity

o US v. Vanleeuwan: F: Officers detained 2 packages in the mail, with reasonable suspicion, they

believed they contain illegal contraband. They held that packages for over 1 day. R:

Reasonable suspicion allows detention of property because only infringed on the possessory interestnot privacy interest

o US v. Ramirez: Officers with reasonable suspicion removed package for 28 hours to canine sniff

and develop other leads o United States v. LaFrance:

F: Police had reasonable suspicion that Fed Ex packages contained drugs. They stopped the package for greater then 90 minutes to get dog sniff.

R: Because there was no infringement on Liberty Interest of person,

reasonable suspicion allowed stop as long as officers were reasonably diligent

o United States v. Dass: Officers held package for 7-23 days with reasonable suspicion

This was unreasonable because they were not acting “diligently” and could have reduced it

If property stopped infringes on a Person’s liberty interest May be unreasonable o Stop may then not be justified with reasonable suspicion, requiring probable case

Infringes on Possessory interest and Liberty Interesto US v. Place:

F: Police had reasonable suspicion that ∆’s luggage had drugs. They detained it for 90 minutes, while they got a drug dog to sniff it.

R: A 90 minute detention of the property was unreasonable and needed

probable cause to hold for this long There were quicker ways to do it…could have gotten a dog quicker

o Not diligently pursued “When a person is travelling with his property, a seizure of that

property amounts to seizure of him”o Essentially, stop of bag stopped person for 90 minutes

o US v. $191,910 in Currency: A 2 hour (120 minute) detention of a travelers luggage violated the 4th

amendment because of length of stop. Overall:

o Look at If Officers were diligent in stopping Property If officers were acting “reasonably diligent” the court is likely to allow the

detention of propertyo Look at if the property stopped affects persons liberty interest

Even if officers act diligently, Place seems to set outer limit at 90 minutes (although officers were not diligent)

Affects Liberty Interest Only Affects Possessory Interest

Place seems to set the outer limit at 90 minutes

Vanleeuwan sets the outer limit at over 1 day

K. Limited Search for Evidence under Terry? No

o Minnesota v. Dickerson: Terry Stop and Frisk is limited to danger/weapon

o Arizona v. Hicks: Cannot do a minimially intrusive search for non-weapon, or evidence

Terry is limited to safety concern only/safety justification Note:

See supra, discussion on Hicks limitation on Plain View Seizure 4. The Arrest Power Rule Search Incident to Arrest:

o Since the bill of rights, police have had the power to search an individual incidental to their arrest Justifications:

1. To protect the officer, officers safety 2. To protect against the destruction of evidence

o Spatial Limit Where can be searched?

There area spatial limitations on where exactly the arrest power extends to Chimel v. California:

F: 3 Police, with an arrest warrant entered ∆’s house to arrest him. When they did, they looked through the entire 3 bedroom house, attic, garage and all containers therein. They seized many items used against him in court.

I: How far does the arrest power rule extend? R:

o Justifications: To search for officers safety from weapons The destruction or concealment of evidence

o Rule: Arrest Power Rule extends to the area of immediate control or possession

A Case-by-case analysis of what this area is “Grab Area”

o This extends to the area he can reach to grab weapon/evidence Does not Extend to:

o Other rooms, other closed areas, whole houseo These require a search warrant

White (Dissent): o Agrees, but does not feel the circumscribed “grab area” should always be the case

Thinks exigent, so unreasonable to get a warrant Gives confederates a chance to destroy evidence

How is the “Grab Area Determined”? At Time of Arrest: US v. Lucas:

o F: Police entered the home with an arrest warrant, and stumbled upon ∆ sitting there with 3 people. He jumped up and reached for a drawer, but police wrestled with him, until he was cuffed and in police car. They then went back in to open drawer, and found gun.

o R: Evaluate the “grab area” from where arrestee was at time of arrest

Although the ∆ had been moved, and was no longer in area to reach a weapon or destroy evidence, court evaluated from where he was when arrested.

This seems to be contrary to Chimel’s justifications though, so if there are non-arrested 3P in the grab area at time of arrest, court may be more willing to utilize this view because they could grab

At time of Search: o Some courts evaluate where the “grab area” is based on where the ∆ is at the time the

search occurs Will be a much more circumscribed scope of “Grab Area”

o Dissent in Davis v. Robbs: Because the arrestee was in squad car, he could not destroy evidence or gain a

dangerous weapon to harm officers Therefore, the Chimel justifications cant justify anything but “at time of search”

Look at the Facts of Each Case! o Determine which point of view is taken

o Timing Limit When can search occur? Does not matter which comes first:

The search incident to arrest usually occurs immediately following arrest But: Search can come before arrest, if there is probable cause to arrest prior to time of search

Limits on When can occur: Incidental to arrest implies there is not too long a period between the arrest and search, or vica

versao Chambers v. Maroney:

F: Police arrested occupants of a car, then brought car to the police station, and later searched the car.

R: While this may apply under automobile exception (it does, see infra), it

cannot be justified as search incidental to arrest o Arrest Power Rule and Exigent Circumstances:

Generally: The Arrest Power rule is limited to the ‘grab area’ at the time of arrest or time of search,

depending on which view is accepted However, per Justice White’s dissent in Chimel, there may be times when confederates, or

accomplices will destroy evidence due to an arrest exigent circumstanceso These exigent circumstances, then, may call for expanded ‘grab area’

United States v. Socey: F: Officers arrested a ∆ outside of the home of a large scale drug operation. It was believed that

people in the house saw the event take place, so they went into the home. R:

o Search incident to arrest may extend beyond ‘grab area’ if police show: 1. Reasonable belief that 3rd Person inside dwelling 2. Reasonable belief that 3rd person was aware of arrest of confederate

outside of premises, so that they feel the need to destroy evidence Terry Protective Sweep:

If incident to arrest, police have Protective Sweep justification, they may exceed the grab area as well This may lead to plain view seizure of evidence as well

o Arrest Power Rule and Search of Person : US v. Robinson:

F: Police followed a ∆, pulled him over for reasonable suspicion of driving without license, because 4 days prior he was found with same issue. During stop, they were placed under arrest, with probable cause to arrest, and the officer searched their bodies, and a container on someone’s body revealing heroin.

I: Are there limits to where on person search occurs? R:

o Arrest Power extends automatically to search of person and all containers on him Reasonable under 4 th amendment:

Safety to officer Evidence destroyed or concealed Outweighs

o Remaining privacy interest of ∆ who is being arrested pursuant to probable cause

Avoids Administrative headache: It will be removed at jail house anyway for inventory Going to inventory and give back eventually, anyway

Is not circumscribed like Terry: Terry , with lesser threshold of proof limits to weapons Here, you are arrested pursuant to probable cause so there is no more

justification needed or limit on what can be searched Automatic, and unrestricted search of all arrestees

o Custodial Arrest for Minor offenses: The power of search incident to arrest is vast, depending on what one may be arrested for Atwater v. City of Lago, Vista:

F: Texas law allowed officer to arrest person in violation of seatbelt law. Officer pulled over ∆, probable cause to arrest because she didn’t have seat belt on and didn’t have any registration papers. She was arrested, and on bail filed suit

I: Is it unreasonable, violating 4th amendment to allow arrest for minor offense? R:

o Full scale custodial arrest for minor traffic offense is reasonable under 4th amendment

1. Court wanted maximum Clarity “Readily administrable Law”

o Cannot require officer to base arrest on only jailable offenses There are too many to memorize, and they change

Want the rule to last 2. Common Law has allowed 3. Does not seem all that bad, because police aren’t typically utilizing on minor

offenses anyway 4. Many states limit what can be arrested for anyway

o While the actual arrest may be unreasonable in way conducted, it is not unreasonable to arrest for minor offense under 4th amendment

O’Connor (Dissent): o It is unreasonable to arrest for minor offenses, even with probable cause

She proposes Probable cause to arrest + point to specific reason why a further intrusion is needed

Detained for up to 48 hours untill hearing, with many violent and non-violent people

This unbounded discretion given to officers can be abused, or used to lead to full scale search of body

Unreasonable intrusion based on states interests Hedgepath v. Washington:

F: mandatory arrest law for eating on the Metro in Washington, D.C.. Offcer arrested 12 years old girl, frisked, took to jail

R:o Roberts says that arrest for minor offenses upheld in Atwatero The Discretion to the police has essentially deferred to the legislature to affix the

appropriate penalty it desires to arrest or noto Essentially, if permitted by legislature, it is constitutional under Atwater

o Arrest Power Rule and Container within the grab area: Most lower courts consider a container within the grab-area searchable

o The Arrest Power Rule Applied to Automobiles: Belton and Thornton:

The Belton rule allowed search incident to arrest of the grab area in the car (no trunk) Officers were permitted to search all containers therein Thornton extended Belton to search incident to car when arrestee was recent occupant

o Otherwise, occupants would come out of car and officers would be precluded from searching vehicle

o Scalia Concurred : Belton and Thornton were based on the Chimel justifications of safety to officer

and destruction or concealment of evidence. He disagreed that these made any sense—if they’ve been arrested, wont pose

any safety risk and can’t destroy evidence Must be some other reason then…

He says it is the evidence contained in the car relevant to arrest crime Arizona v. Gant

F: ∆ was driving with a suspended license, was pulled over, arrested, cuffed, and put in police car. Then, during search of car—police found cocaine and gun. ∆ argued that Belton didn’t authorize a search of car because he posed no threat and couldn’t have gotten any evidence once locked up

I: What is modern applicable law on search of car incident to arrest? R:

o 1. Police may search vehicle incident to recent occupants’ arrest only when arrestee is unsecured, and within reaching distance or

Very rarely used, as safety to officer is threatened when unrestrained

o 2. Search justified because “reasonable belief” that evidence relevant to crime of arrest might be found in vehicle

Adopted from Scalia’s Thornton concurrence Based on Crime of Arrest, may not get into vehicle at all

EG: Expired license, speeding no reason to go into car EG: Marijuana smell may be more of reason to search in car

Seems off 1. Why the standard of Reasonable Suspicion? 2. Why limits what can be searched for in car? 3. Why does it limit to passenger compartment, not trunk?

o Reasoning: Court does not like that Belton allows search of car incident to any arrest, even

when they cannot reach danger to officer or evidence Says this significantly implicates privacy interest, for minor arrest it lets police

go through all containers within car Disagrees with Alito’s argument, in dissent, that police have relied on this for so

long They adapt quickly

Furthermore Counsel failed to make automobile exception argument o Scalia:

Concurs to avoid lack of clarity in the field, to have a controlling law But, disagrees with first prong Likes the second prong, his creation, because it comports with traditional idea of

reasonableness Its unreasonable, he thinks, to search through a car for any arrest for

anything Should be based on what arrest was for…that is reasonable

o Alito (Dissent): Belton has been clear, for 28 years Police have relied on Belton Thinks Chimel must have meant ‘at time of arrest,’ and Belton did too, by

saying it ‘changed nothing in Chimel so therefore, disagrees with first prong of new test

Disagrees with the formulation that is random of the second prong 5. Pre-textual Stops and Arrests:

o Generally: It gives police great discretion to stop for a very minor traffic offense under Terry or, attain probable cause

to arrest, and arrest under Atwater, and then search the car according to Gant This leads to pretext:

o Stopping someone for traffic infraction, when in all other circumstances they wouldn’t, because they have hunch or may be led to search for more serious crime

o History: Prior to Whren, courts were split:

Courts evaluated whether officers normally “Would have” stopped or “Could have Stopped”o The supreme court in Whren, adopts “could have”

o Whren v. United States: F: Plain clothes officers, on patrol in high drug area, stopped car that was oddly driving, passenger was

looking in drivers lap, and speeding. Cop stopped, walked up and saw crack bag on guys lap. Arrested them.

I: Does subjective intent of officer matter in stop, if they have reasonable suspicion or probable cause? R:

1. No 4th amendment evaluates objective reasonableness only o subjective intentions of the officer is irrelevant to 4th amendment analysis

2. If there is Probable cause of infraction of Minor Traffic Offenseo that is all that is required

o If they had legal right to act, it is acceptable Here:

Officers had reasonable suspicion to stop, probable cause to stop from speeding and traffic offense, and probable cause to arrest due to viewing crack

3. Court Defers to legislature:o The traffic code is enormous, yes…giving cops reason to stop for large amount of things

but the court is not the proper forum to argue that the code is unreasonably large, justifying a stop for many things Legislature

o Effect Terry and Atwater allow use of minor traffic stop, regardless of if officer is using as pretext to evaluate more serious crime

Leads to potential abuse: The pretext of reasonable suspicion or probable cause due to minor crime may be abused for racial

profilingo May be racially profiling individuals, under pretext of Terry or probable cause of traffic

infractiono While this can be the case, that ‘hit rate’ of blacks is higher then whites in minor traffic

offenses 4th amendment is not place for redressability Equal Protection Clause:

§1983 Suit:o 1. Must show statistical analysis that there is disproportionate treatment

if shown, may get you to discoveryo 2. In discovery, must show Specific Intent to discriminate that persono 3. If shown, still issue of Remedy

it is not exclusion Overall Very difficult to prove

o Extraordinary Pretext is Reasonable under 4 th Amendment: US v. Ibarra:

F: Officers planned to stop a car, they suspected of being drug courier, whenever it broke a traffic law. They had a drug dog waiting. They stopped the car, sniffed car, found drugs, and pulled them out with ‘automobile exception’

R:o Even though this pretext was extraordinary, under Whren, it is acceptable because they

satisfied the objective legal requirements They had probable cause to pull over Discretion to arrest

Search either incident to arrest under Gant or automobile exception 6. Plain View & Plain Touch Seizure:

o General: Whenever Police are engaged in a legal activity, these two doctrine supplement the activity

During Terry stop, warrant execution, arrest, etc… Justification:

When the object is already visible, the extra intrusion of seizure isn’t that much greater, and they’ve already complied with the 4th amendment, by being there legally

An extension of the justification the officer already has for being thereo Plain View Doctrine:

Police must have Probable Cause object is evidence of criminal activity and it must be Readily apparent (not requiring further search, because that would mean probable cause doesn’t exist, and the search is used to determine it…cant do (Hicks))

Does not have to be inadvertent Horton v. California:

o 1. If officer knows about something, and doesn’t put it in the warrant, they are already limited by scope of warrant

o 2. They will put it in warrant if they know, and wouldn’t leave it off because it expands scope

If they leave it out, and find what warrant specifies…their search is over o Nothing in 4th amendment is furthered by it being inadvertent

Readily Apparent: Arizona v. Hicks:

o Officers, legally within a house saw in plain view a turn table…The officer thinking it might be stolen, lifted it up to see serial number, to determine if it was stolen.

o Probable cause must be readily apparent If further search, even minimal, is required, then object in plain view does not

have probable cause of evidence of illegality…and plain view doctrone doesn’t apply

o Plain Touch Doctrine: Evidence may be seized during course of lawful search, if there is probable cause that it is evidence of

illegal activity **Remember:

o Reasonable Suspicion and Terry are limited to weapons, only Example:

o US v. Williams: Officer witnessed what he thought was drug transaction, stopped individual and Terry frisked for weapons—during frisk, he came across a hard, square package and seized it

He had probable cause to seize, escalating a Terry frisk into a Plain Touch seizure

7. The Automobile Exception: o Generally:

This is distinguished from the right to search an automobile, incident to arrest and Gant It is its own, separate rule

o Carroll Doctrine: Police may search any vehicle if they have probable cause to believe it has evidence of criminal

activity Applies to any vehicle Justification # 1:

o Mobility: The mobility and chance of a vehicle leaving a jurisdiction by the time a warrant

is granted, making it irrelevant makes this a reasonable state interesto Extended Warrantless search of car that has been impounded to Police Station

Chambers v. Maroney: F: A store was robbed, tip alerted to seeing blue station wagon with driver in green sweater, like

that of one that robbed store. Officers stopped, eventually arrested and brought car to station R:

o Carrol Doctrine applies, even though car was at police station Court held that:

There is no difference between seizing and applying for warrant or searching without a warrant

They had probable cause, so irrelevant Still had the possibility of being mobile…still possible

o Justification # 2: “Car has diminished expectation of Privacy:” California v. Carney:

While it is possible that Mobility is justificationo Vehicle has lower expectation of Privacy:

It is regularly inspected by the government and regulatedo Motor Homes:

California v. Carney: F: Officers got a tip that ∆ was in motor home, in parking lot, exchanging marijuana for sex. They

questioned someone who got out of motor home who confirmed their suspicion. They entered and Arrested Carney

R:o The automobile exception applies to Mobile home, just like caro However:

Court noted there may be exceptions to this rule, if motor home is situated in way that indicates it is a residence

Look at: Location Licensed Connected to Utilities Convenient access to public road The more home is…may not be allowed to enter and search

o Mobility of Container Outside of Car:

Court has held the mobility of a bag, outside of a car, does not justify warrantless search of ito There is higher expectation in a bag, it houses personal items, unlike car which is

regulated, and open to public view through windows Inside Car:

Warrantless search of containers inside car is acceptable, as long as probable cause it contains evidence of criminal activity

8. Exigent Circumstances:o General:

In certain circumstances, fact specific situations allow state to show that immediate action was necessary to:

1. Prevent Flight 2. Safeguard Public 3. Protect from loss of evidence

Exigent circumstances exception excuses the need for a warrant But must have probable cause…

Exigent Circumstances + Probable cause bypasses many rules themo 1. Hot Pursuit:

Allows officers in ‘hot pursuit’ to excuse arrest or search warrant requirement, where one would normally be required

Excuses Warrant Arrest And Search Warrant Reasonableness:

o Its unreasonable to expect officers to stop, and get warrant Would escape, and negate any warrant by time gotten, creates public danger and

creates destruction of evidence problem Warden v. Hayden:

F: Officers pursued a robbery suspect into what was his home. They entered, searched for the suspect, and looked for weapons too. In wash machine, they looked at found clothes he was wearing.

R:o Warrantless search is justified by hot-pursuit exception

Searching for evidence was acceptable o Reasonable:

Suspect, knowing he is being pursued will seek to escape, destroy evidence, and potentially create a threat to public safety

Suspect must be aware of pursuit for the exigent circumstances exception to apply Dependent on suspect, not on the police being expeditious Welsh v. Wisconsin:

o F: Officers found car in ditch. They found out who driver was, went into his home to arrest him for being intoxicated.

o R: “Hot Pursuit” Exception did not apply here, because he was not aware of pursuit

and there was no chase For pursuit look to awareness of suspect

o EG: Bank robbers fleeing a scene even though no pursuit…Even though they don’t

see police after them, they are aware that pursuit will ensue or could ensue at anytime….so they are aware of pursuit

Note: The Plain View doctrine coincides with Exigent Circumstances “Hot Pursuit”

o Once you are somewhere via hot pursuit, what is in plain view is fair game o 2. Public Safety:

If there is circumstance where police have probable cause that they or public would be imminently harmed, Public Safety exception will be used

Excused from obtaining warrant Evaluated from officers point of view at the time it occurred

o “Objective Reasonableness” Must show an imminent risk to public or police Example:

US v. Black: o Officers had tip that there was extremely serious domestic disturbance, and entered home

that seemed to be quiet…turned out no one in sideo Was ok under public safety exception

US v. Williams: o Could not justify entering home for ‘water leak’ under public safety exception

Brigham City v. Stuart: F: Police responded to call of loud party. They arrived and heard screaming from in the back of

the house. Observed a fight through a window. After a few blows were delivered, police entered house, stopped fight and arrested people.

I: May police enter home under Public Safety Exception? R:

o 1. Subjective Intent, Pretext of Officers is irrelevant 4th amendment evaluates the objective reasonableness of the officer, not his

subjective intentions If circumstances, objectively viewed are justified, it is reasonable

o Officer may enter a home if has objectively reasonable basis for believing someone is injured or to protect an occupant from immediate injury

Police may prevent violence and restore order o Here:

3AM, phone call, hears screaming, saw fight in home, This is objectively reasonable basis that someone was being injured

9. Administrative Searches, Seizures and Special Needs : o Rule:

When a search or seizure is done for purpose other then traditional criminal law enforcement the reasonableness clause applies…and suspicionless search may be acceptable

Initial Question: If For purpose other then criminal law

o If search or seizure is for needs beyond criminal law, the Court engages n a balancing of interests

o New York v. Burger: Administrative and Penal laws may overlap, but if they had different subsidiary

purposes…and different methods, its ok Look at punishment versus rules, regulation

Administrative purpose: records, operating conditions, enforce regulatory standards

If for criminal law/evidentiary purpose o Traditional rule of warrant presumption is required, subject to exceptions, infra

General Reasonableness Balancing Framework for Special Needs: Individual’s Interest

o Nature of Privacy Interesto Nature or Character of Intrusion

Government’s Interesto Nature of Interest in Searcho Immediacy of needo *Efficacy

Utilized in school search in negligible way Strictly refused in other cases See discussion, infra

o 1. Administrative Searches and Seizures: A. Safety Inspection of Home:

Camara v. Municipal Court: o F: Health inspector tried to enter home, but was denied by the homeowner who refused a

warrantless entryo R:

1. Was administrative, above and beyond criminal law for health/safety inspection of houses

Reasonableness Balancing Applies:o Individual Interest:

Privacy in home, but intrusion is relatively small, and circumscribed to safety

o Government Interest: Has substantial interest in safety/health Warrant on probable cause would infringe on this

substantial interest 2. Warrant is Required, but not on probable cause:

Camara Warrant issued:o “on finding that search is in compliance with reasonable

administrative statute, ordinance or scheme to inspect home” Look at inspection rules, and if inspection fits issue

warrant Look at passage of time, nature of building, part of

area-wide inspection pursuant to statute B. Administrative Inspection of Parolees’ Home:

Griffin v. Wisconsin: o F: Parole inspector entered home of paroleeo R:

1. This was administrative as statute was to regulate a probationer Reasonableness Balacing Applies:

o Individual Interest: Parolee has a diminished expectation of privacy

o Government Interest: Government has administrative interest in regulating

probationer Given Balance, in favor of government

A Probation Officer may conduct a warrantless search of a probationer’s house on reasonable suspicion of probation violation

C. Administrative Search of Business:

See v. City of Seattle: o Applies Camara Rule

1. Was administrative, above criminal law, because businesses are more complexly regulated

Government Interest: o State has administrative interest in safe structure and in

business operation safely, properly conducted Administrative Search of ‘Closely Regulated Business’ New York v. Burger:

o F: ∆ owned an automobile junkyard—officers came to inspect pursuant to a statute of administrative/regulatory nature. He did not have the required license, or permit. They searched and found stolen parts, vehicles.

o I: Was warrantless search, pursuant to regulatory statute reasonable?o R:

1. In Closely Regulated business, warrant is not required because expectation of privacy is diminished—participant has knowledge of regulation, and possible inspection

2. If not closely regulated Need a See / Camara Warrant Test:

1. Is the Business ‘Closely Regulated?’o Look at extensive laws, license requirements, registration,

registration #, documentation, fines, loss of license, duration of the scheme and its history

If Yes Conduct a Reasonableness Balancing:o 1. Substantial Government interest of regulatory Scheme

Significant interest? Here: Theft, but this seems criminal in nature…

o 2. Warrantless Inspection necessary to further scheme? Surprise, unannounced inspection Surprise crucial to enforcing regulation Examine process, frequent inspection? Here: theft is increasing, substantial interest that

warrantless inspection furthers…o 3. Statute must provide adequate constitutional substitute

for warrant o *Must Advise that search is Lawful

Give regulated notice of searcho *Must define time, place, and scope of inspection

Here: Did circumscribe time to hours of operation, and statute gave notice that place of business could be inspected …

o Effect of Burger: Frequency of Administrative Search can be unlimited Officers may conduct ‘administrative search’

Don’t need to create a new agency, or agents to do so Plain View Doctrine is ok within administrative search

Not much is needed to become ‘closely regulated’ or administrativeo Brennan Dissent:

Regulations here did not amount to closely regulated, and in fact were not even administrative…was purely criminal

Almost all businesses vulnerable then, and if this was administrative…will have too far a reach

Should apply Warrant Clause D. Examples of Reach of ‘Administrative Search’

US v. Hernandez:

o F: Officer followed truck for 600 miles before stopping, for suspecting it of drugs. It was a commercial truck, requiring ICC Bill of Lading. Did not have that or a license plate

o R: 1. Was administrative pursuant to Texas civil law, authorizing inspection of

vehicles when commodities transported Because was administrative, reasonableness balancing applied and search was

deemed reasonable o 2. Special Needs Searches:

In Certain circumstances, above and beyond ordinary criminal enforcement, the court will apply ‘Special Needs Balancing’ from Reasonableness Clause…no suspicion needed to be reasonable

Reason: o Because of a ‘special need’ the argument is that having to get a warrant would infringe on

that special need…detrimentalo Special need is a “Government interest that is sufficiently compelling to justify intrusion

on privacy, without suspicion” Note:

o While the Court will engage in a balancing test if a special need is claimed, no factor seems particularly overweighty

Seems to depend on Strength of Gov. Interest v. Minimal privacy interesto Efficacy:

May or may not be used Has been specifically denounced by Rehnquist in Sitz as separation of powers

issue, and something for Congress not court to create program If used, as in school context Only needs to be reasonable way to solve, not

perfect fit See discussion, infra

1. Government Employees: Skinner v. Railway Labor Ass’n:

o Special need of drug testing employees after an accident above criminal law Individual Interest:

Minimal intrusion on privacy Nature of intrusion was minimal—no visual of urination, only audible Industry was highly regulated

Government Interest: Compelling, significant interest in deterring drug use during train

operationo Implicated many peoples’ safety

History of Drug problem made the immediacy higho Government Interest outweighed private interest and suspicionless testing ok

Van Rabb: o Special Need of drug testing special officers, working with weapons/drugs

Individual Interest Minimally intrusive because only tested a specific subset portion of

whole employee baseo Because subset, less intrusive

Government Interest: Compelling, significant interest in avoiding bribery to officer in

powerful situation, or being high around weapons Safety No history of problem- so not immediate need

o Court said It’s ok, the critical government interest is so high, immediacy is made up for

o Suspicionless testing of customs officers is ok 2. Students in Public School:

Vernonia v. Acton:

o Special Need: Administrative Drug Testing of Student Athletes Individual Interest:

Diminished expectation of privacy at school Athletes are especially diminished, because they are subset… Athletes shower with each other, change with each other Voluntary Choice to be in subset

Government Interest: Safety of Students is of paramount important Documented Drug problem within schools Suspicionless Search Preferred

o Subjecting targeted students to search, based on suspicion might lead to lawsuit over discrimination…So, its better to have suspicionless search

o Suspicionless Drug Testing of Athletes ok Bd. Of Education v. Earls:

o F: School policy requires that all students who participate in extracurricular activities submit to drug testing before and during activity.

o R: Special Need in administrative Testing students in extracurricular activity Individual Interest:

Nature of Interest: o Voluntarily subject themselves to extra regulation because

they join a specific subset group Because they submit to something that is intrusive, it

is minimally intrusiveo Privacy Interests at school are lessened already

“submit to routine required physical exam, vaccine against disease…sometimes more control is needed in school”

o Diminished Expectation of Privacy Nature of Intrusion:

o Urine Collection but look at manner which monitored o Urination is not viewed…only audible through dooro Faculty Waits outsideo Same as upheld in Vernoniao Police are not involved, tests confidential o Intrusion, thus, is ‘minimally intrusive’

Government Interest: Nature:

o Custodial responsibility of students o Strong Interest in Drug Preventiono Safety is of paramount importance, especially for child

Furthered by drug testingo No Documented History

But, court has never ‘required’ Court does not need to quantify what ‘enough of drug

problem’ is… Von Rabb allows purely preventative basis

o Suspicionless Testing Preferred: Targeting students may lead to lawsuits This may chill enforcement of drug program

o Significant Immediacy:

o Although no problem, drug prevention is big concern, so immediacy is magnified, and prevention is enough

Efficacy: o Note: efficacy specifically denounced in road-blocks…

But used here… Should it be? Argue For the legislature who chose the program

to determine if effective enough Difficult to measure effect of deterrence, which

cannot be numerically measured….o While Vernonia was closer fit because of problem, ‘testing

serves interests that Government has’ so it is close enough fit…

o Drug Testing of students in extracurricular is ‘special need’ that is ok Ginsburg Dissent:

o This isn’t voluntary…its almost required…because of which, the nature of privacy interest is not diminished…

More substantial intrusion, because they have not, in effect, ‘consented’o No documented problem

Efficacy, then, is not as strong as in Vernonia Not tailored at all to any problem

o Sub-population is not as sub-set as Vernonia This is a broader class of people, making intrusion more substantial

o Unreasonable 3. Suspicionless Safety Search in Airport, Subway:

Special Need: conducted as part of general regulatory scheme, where administrative purpose is to prevent weapons or explosives…

o Factors the Court has Balanced: Government Interest: Extremely High in Terrorism

Safety and protecting safety of passengers in air-travel is high Interest wouldn’t be met by limiting to suspicion

o Some travelers don’t fit suspiciono Are not suspicious

Efficacy: o Sitz court refused to deal with it, because it was question for

the legislature to decideo So consider the program as it was designedo But if considered, it:

Deters would be criminals?, which is reasonably effective, but difficult to quantify

Reasonably directed at Interest? Individual:

Search is minimally intrusiveo All are searched

If all are searched, not as frightening or intrusive and not humiliating

o Random Selection Not as intrusive in that it does not single out people Sub-population, which Court has allowed Deters, Frustrates purpose…

o Notice: Travelers have notice that they will be searched Even with this notice, they choose to fly, so minimal

intrusiveness…less humiliating o Travelers have choice to travel different method

Maybe not in some circumstanceso Search is quick

o US v. Auki: F: ∆ had no ID, so pursuant to statute was submitted to search in airport line.

During second search, he said he didn’t want to board anymore…but search continued and found drugs

R: Consent: 9th circuit said that consent was not really the issue Not really important that he chose to fly, and now withdrew his choice,

because this would give terrorists ability to test weak links in security All that is needed is a reasonable search conducted pursuant to statute

with sufficient ‘special need’ 4. Roadblocks, Check Points

A. Officers may not stop a car without suspiciono Delaware v. Prouse:

Unreasonable, and license regulation is not ‘special need’ that is significant enough government interest to justify the intrusion on individuals

For intrusion to be reasonable, requires reasonable suspicion B. Permanent Checkpoints:

o US v. Martinez-Fuerte: 1. Special need, pursuant to regulation was ‘illegal alien flow’

Government Interest:o Significant interest in regulating illegal aliens

Individual Interest:o Only a temporary seizure, and minimal intrusiono Notice was to all who drove that roado Was not dealing with a ‘dwelling’o Minimally intrusive

C. Temporary DUI/Sobriety Checkpoint:o Michigan v. Sitz:

F: Program allowed checkpoint to be placed where safe, and minimally inconvenience to driver, safety to driver

R: Special need pursuant to regulatory statute 1. Could have argued road safety, or safety from drunk-drivers 2. Court said that do not need ‘special need’ pursuant to DUI

checkpoint, and under Terry reasonablenesso this is very odd…not really explainable

Individual Interest:o Had Noticeo Not frightened, because all involved, and knewo Not distinguishable from Martinez-Furete

Government Interest:o Significant Interest in Drunk Drivingo It was pursuant to guidelines that were voted ono Immediacy in Drunk driving…occurs regularly…o Efficacy:

Renhquist specifically denounces use of efficacy… For ‘politically accountable branches’ not courts Choice of alternatives and their effectieness is for

government officials Stevens Dissent:

Randomness is more surprising, startlingo More intrusive

Police discretion at location is more targeted and more intrusive

10. Electronic Surveillance: o 1. Burger v. New York:

F: an eavesdropping order was obtained pursuant to a New York statute that said it could be issued with ‘reasonable grounds.’ The statute allowed for listening devices to be placed in for 60 days.

R: Court said this was a blanket grant of a warrant without warrant requirements much like a ‘general

warrant’ Lacked particularity, description, time was long, didn’t terminate once evidence listed found

o 2. Federal Response –Title 3 Congress, through Title 3 regulated wiretapping and electronic eavesdropping

does not apply when one party consents Amended by:

Title 1 of Electronic Communications Privacy Act USA Patriot Act Homeland Security Act

Basic Provisions: 1. Applies to:

o any wire, or oral electron communicationo Interception, which is ‘aural acquisition or other acquisition of contents of any wire,

electronic or oral communication through use of device 2. To Obtain an Order for Title 3 Warrant:

o Under Oath or affirmationo Must include full and compete statement of facts and circumstances to justify belief o Unless ‘roving’ wiretap, particular description of the nature and location of facilities

where communication will be interceptedo Particular description of the type of communication sought to be interceptedo Identity of person, if known, committing offense whose communications soughto Full and complete statement as to whether other investigative procedures have been tried

and failed o Statement of the period of time which interception is to be maintained

3. Court Issues order if:o 1. Probable cause to believe that individual is committing, has committed or is about to

commit an enumerated offense o 2. Probable cause to believe that particular communications concerning that offense will

be obtained through interception;o 3. Necessity Requirement: Normal investigative procedures have not worked and

point is that wiretap isn’t the initial step, and just employed all the time, so it doesn’t require exhaustion of other methods…but attempt

o 4. Probable cause to believe place where communication coming from is being used in connection with specified offense

4. Particularity Requirement:o Court order must provde:o Identity of person, if knowno Nature and location of communication facilityo Particular description of type of communication sought to be intercepted o Identity of agency authorized to intercept ito Period of time the interception is authorized, or will terminate if isn’t obtained

5. Time Limit:o No period longer then necessary, and not longer then 30 dayso Extension may be granted, but must be applied for and not longer then 30 days

6. Minimization:o Minimize interception of communication not otherwise subject to it o Means that officers must stop monitoring a conversation as soon as it becomes apparent

that it is not about criminal activity

7. Exigent Circumstances:o Officers may intercept without court order for no longer then 48 hours, if emergency

situation exists that involves ‘immediate danger of death or serious injury, threat to national security…’

8. Inventory:o within 90 days, party who was intercepted must receive an inventory of notice and date of

order and that communication was interceptedo Court may allow transcript to be shown if in ‘interest of justice’o May postpone inventory

9. Roving Wiretap:o Title 3 allows for roving wiretap that is not connected to particular locationo Must show that stationary wiretap wont be sufficient

o Foreign Intelligence Surveillance Act: Title 3 does not apply to foreign intelligence To get FISA Warrant:

Must show probable cause that target is foreign power or agent of foreign power Request made to one of 11 federal district court judges selected by chief justice of supreme court Notice and Inventory Less Strict

o Target may never be notified if in interest of national security Exigent Circumstances

o Allow listening up to 72 hourso Or, 1 year for foreign government entity

Remedies for 4 th Amendment Violation:

History: o The Exclusion rule was not the rule

Instead, remedy at common law for a violation of the 4th amendment was a civil suit for trespass or for replevin of goods taken unlawfully

However, both were impracticalo Birth of the Rule:

The Exclusionary rule was late in creation, Weeks v. US in 1914 Why:

Federal Courts did not hear criminal cases often, because of their limited jurisdiction Did not get general right of appeal until 1891 Also, 4th amendment did not ‘incorporate’ at that time, so state cases were not appealed Right around 1891, all the states had been formed, so they heard mostly malum in se cases

o Part of the reason the exclusionary rule was not a big dealo When it was created, Federal Courts were hearing malum prohibitum cases, so it was not

as big a deal to exclude that type of evidence rather then rape, murder, etc… Had the cases been Malum In Se…there is chance it would never have been

created Weeks v. US (1914):

1. Federal Courts must exclude evidence obtained unlawfully under 4th amendment 2. 4th Amendment does not incorporate to states

o Remember, at this time Federal Courts were hearing malum prohibitum cases, so effect of exclusion wasn’t that bad

3. Court held that if it did not exclude, the 4th amendment was meaningless 4. Silver Platter Doctrine:

o Weeks , in essence, applied to federal officers….so federal officers would obtain evidence illegally and give to states…or have state officers obtain evidence illegally and give to federal officers…this was allowed

Wolf v. Colorado (1949): The 4th amendment incorporates to States

o ‘Ordered Liberty’ concept of incorporation

o Other English speaking countries have similar rule The exclusionary rule does not incorporate:

o 1. It is a judicial creation, not from text or Congresso 2. Other English Speaking Countries do not use it o 3. States have largely declined to use it, using other methodso 4. Only benefit is for the guilty, where incriminating evidence is found

Murphy Dissent: o The only possible remedy for the 4th amendment violation is exclusion

Post- Wolf: The exclusionary rule did not apply to states However, States would sometimes exclude

o If method of gaining evidence ‘Shocked the Conscience’ (The England Rule)o Rochin v. California:

Officers pumped a suspect’s stomach to gather evidence This did Shock the conscience, and was physical intrusion of body…so evidence

excluded Mapp v. Ohio (1961)

Justice Clark: The Exclusionary Rule Incorporates to States:

o 1. Jot-for-Jot Incorporation Not other amendment incorporates unequally to states, and neither should 4th

amendment Weeks created a constitutional rule of exclusion…a constitutional right, so it

incorporateso 2. Judicial Integrity:

If the government does not observe the law, it is a failure and empty promise Judiciary should not be tainted by illegally obtained evidence

o 3. Reason & Truth: Weeks was a constitutional rule, and exclusion is part of the 4th amendment,

which is no more or less then what constitution gives Is a constitutional right

Court is only allowing what is constitutionally guaranteed by the 4th amendment So, Court here interprets the exclusionary rule as a constitutional right although

judicially created in Weeks Harlan & Frankfurter Dissent:

o Harlan disagrees with Jot-For-Jot…and wants more selective incorporation Still utilizes ‘ordered liberty concept’ and evaluation of other English speaking

countrieso Thinks that 4th amendment violation occurs at the illegal search or seizure…not when

evidence is brought to court Therefore, should be remedy but not exclusion because evidence isn’t violation 5th amendment is violated when evidence entered at court

o Policy Arguments for and Against Exclusion Rule:

Limitations on the Exclusion Rule: o General:

While the Basic rule is to exclude illegally obtained evidence, the court has fashioned exceptions to the rule The Court has concentrated on:

1. Judicial Integrity 2. Personal Right to exclusion 3. Deterrence

o the prominent consideration of the Court Depending on which rationale is relied on…court’s decision could change

o The Good Faith Exception: Rule: In certain contexts, Court will allow ‘good faith’ reliance on a warrant, and search conducted

pursuant to that warrant that is later found faulty evidence won’t be excluded Requires:

o Warrant Issuedo Objectively Reasonable Reliance on it, in Good Faith

Why: o Deterrent purpose of exclusion cannot be effectuated when police objectively rely on

warrant in good faith, and the costs of exclusion > benefitso But:

When police do not act in ‘good faith,’ the deterrent benefits of exclusion do outweigh the societal costs, because deterrence can occur

United States v. Leon (Magistrate Error): F: Officer obtained a warrant—Magistrate had determined there was probable cause, and large

amounts of drugs were found. Court of appeals eventually found the warrant lacking probable cause, and motion to suppress ensued.

R:o 1. The purpose of the exclusion rule is deterrence of Police:

It cannot deter an intermediary Here Magistrate: 1. Benefit of Exclusion is to alter Police Behavior 2. Nothing suggests it would effect judges determination 3. Purpose of deterrence won’t be met on Judge

o Have no stake in outcomeNeutralo Won’t reduce, encourage, or lead to warrant grant

Proponent Policy Arguments Opponent Policy Arguments1. Judicial Integrity Preserved: insulates courts from tainted evidence (Mapp v. Ohio)

1. Amor: Judicial Integrity also promoted by using evidence that helps justice system reach true verdict -Tainted evidence can still be used in civil court, grand jury, and perjury cases…so how much integrity?

2. Prevents Government from profiting from its own wrong

2. Amor: Society profits when wrong-doers are convicted for wrong doing Costs<Benefits -It costs society when bad person let out, for minimal benefits3. Amor: Not crystal clearpolice simply misjudging use of warrant exception may be excluded, even if they could have been granted a warrant…Costs<Benefits-Actually could profit…if sold contraband for good cause

3. Not Costly Only excludes what should never have been found4. Deterrence of Police Misconduct: Fear of police that if they mess up, the criminal will be let go -But, we don’t want their concern to be not making a mistake Rather, we want them to have primary concern of catching the bad guy

4. Amor: Does not Deter: because used after conviction…What it actually does is overcompensate a criminal…Person gaining suppression is only doing it for himself…not to deter future police misconduct Overcompensation Horrible criminal may be let go over minor infractionMinor criminal over major infraction

o 2. Exclusion should only be used when it furthers purpose Deterrence A. Cost / Benefit Analysis:

The Costs of exclusion is extremely high The benefits of exclusion outweigh costs only when the purpose of

exclusion is met Deterrence as purpose is not met when objectively reasonable reliance

o Note: If court uses other purpose, the benefits may not have

to be as high…and exclusion may be more justified in certain circumstances

B. When Police Objectively reasonably reliance on warrant: ‘When Reasonable Minds would differ’ defer to police in good

faith Here, even Circuit court couldn’t agree if PC or not Nothing to deter They have acted in good faith, and obtained a warrant Good Faith Rule applies

C. When no objective reasonable reliance benefits > Costs as purpose of deterring police is met:

1. When officers were dishonest or reckless in preparing affidavit 2. Could not have had an objectively reasonable belief there was PC

o a. When Magistrate abdicated his dutyo b. When warrant is on face, deficient bare boneso c. Probable Cause is obviously lacking

In these circumstances, the deterrent purpose of the exclusion rule can be met…so the benefits of exclusion outweigh the costs

Brennan (Dissent): o 1. Court says what the law is (Marburry v. Madison) and Court, in Weeks did soo 2. The 4th amendment imposes the exclusion rule then…it imposes to societal costs…So

Good faith rule is not needed The Good Faith Rule is not needed because of Gates

Gates already lowers threshold of probable cause Lower threshold + Deference is enough

o 2. Purpose of Exclusion is Judicial Integrity and it is a personal right and deterrence Therefore The Courts mistake is not separate from police usage of it It is a personal right of people…Costs of it are justified

Stevens (dissent): o The Good faith rule ends any remedy to 4th amendment violationo It is not needed In fact, it allows a ‘constitutional violation’ because the Court in

Weeks said the law is exclusion, and now undercuts it Arizona v. Evans (Clerical Error and Police Reliance on Court Personnel) :

F: Officer stopped person who had traffic violation. Computer showed an arrest warrant outstanding. Officer arrested, and search incident to arrest turned up pot. However, the arrest warrant had been quashed long before, but court personnel made mistake

R:o 1. Purpose of Exclusion is to deter police

Intermediary Court personnel wouldn’t be deterred: No basis to believe they would be deterred from mistake

o 2. Exclusion should only be used when furthers deterrence: Nothing can be deterred because officer, in good faith, reasonably relied on the

warrant and computer Ginsburg/Stevens:

o Exclusion is an individual /personal right…should not deprive people of it because clerical error

o Computers can exacerbate the problem—so, must be treated carefully Herring v. US (Negligence of Police Employee):

F: Police at station radioed to another police station to check if someone in parking lot, Herring, had any warrants. They radioed back and said there was 1 felony arrest warrant outstanding. Police arrested, and found Meth and a Gun. However, there was no arrest warrant and when other county realized and tried to call back it was too late.

R:o 1. Exclusion is the Courts last resort Not its impulse

Court slowly chops away at efficacy of exclusiono 2. The purpose of exclusion/justified when deters police

Does not apply to intermediaries Exclusion is not an individual right, but only for deterrence Focus is on efficacy of deterrence of 4th amendment violation in future Purpose cannot be met if objectively reasonable reliance on warrant

o 3. Benefits of Deterrence must outweigh costs of exclusion: Cost Guilty go free “offends basic concept of criminal justice” Benefits will only outweigh costs when purpose is met

o 3. Exclusion meets purpose and is justified when police are unreasonable in relying/not in good faith/are culpable:

During Affidavit / groundwork stage, in reliance on warrant Intentional/ flagrant police behavior Reckless behavior Grossly negligent behavior Recurring Systematic negligence (Computer)

If police reckless in maintaining warrant system…intentionally made false inputs…

Note: o Argue by using police conduct…but may need to determine

subjective intent…. Objectively Reasonable Reliance includes: Exclusion’s purpose of deterrence is not met when non-recurring, attenuated

negligence occurs Deterrent Purpose of Exclusion is not met when police mistakes are

negligent/careless…costs are > non-deterrent benefit Ginsburg (dissent) :

o Exclusion is for deterrence, but also for judicial integrity and personal right Prohibiting people from right prohibits people from part of the 4th amendment

exclusion is only effective remedy Civil Liability is untested

o Allowing Carelessness of police error is beyond precedent Opens public up to enormous computer system errors Risk of error is exacerbated…and now there is no incentive not to be careless This, then, may lead to ending peoples ‘right to exclusion

o Now ∆ must prove culpability Litigation will be burdened Discovery needed to determine…burdens the courts

Post Herring: 3 cases prior, Leon, Krull, and Evans all involved an intermediary and police relying on their

mistakeo Herring applied to a police-department, however…but not officer (intermediary)o Should Good Faith rule apply to police officer/Warrantless Search?

Yes No

1. Herring blurred line by saying ‘police carelessness’ and not clearly stating police personnel2. Officer made a mistake, but Judges ‘reasonable minds differ’ so its not that easy to determine…and exclusion

1. Herring said attenuated negligence…police making a mistake would not be as attenuated as a police employee2. Exclusion is mean to deter officer…if he can in good faith rely on his own observations, all exceptions to

wouldn’t deter3. Standing already does the job of good faith -prohibits people from arguing exclusion applies anyway in certain warrant exception contexts4. Since deterrent effect is for police, could argue that Good faith reliance, as long as not intentional abdication of warrant exceptions is ok….Herring allows it, as long as not intentional/flagrant…almost as though a reasonable effort to try and comply was exerted, is sufficient

warrant blur, and really are not needed -If officer needed a certain level of suspicion to have a reasonable search/seizure, but could in good faith not have that level…4th amendment is unwound3. This ends deterrent…allows him to be careless4. If Good faith is allowed in warrantless search, then the will push envelope to questionable scenarios5. Pushes the determination of ‘objective reasonableness’ of 4th amendment to subjective view of the officer…6. Look to dissents

o Standing: Modernly:

Standing, or as it was changed in Rakas, is a substantive 4th amendment question, either textually charged or Judicially created, that establishes who may claim a violation of 4th amendment rights

Looks at Personal Right view of Exclusion, and decides who has this right o As court has minimized standing, it has limited the reach of exclusiono This is due to the costs exclusion exacts on society

Textual Argument: o 4th amendment says “Their”…so standing is limited as to who can enforce the 4th

amendment, by the text of the amendment

Where standing has/has not been determined under Modern Katz Approach

Location StandingVehicle:Owner of VehiclePassenger in Vehicle

Standing under Katz Rakas v. IllinoisNo Standing under Katz Rakas v. Illinois

Property Owner: When property in possession of another No Standing under Katz Rawlings v. KentuckyIn Home: Home Owner Overnight Guest

Temporary Visitor/Invitee

-Standing under Katz: This would meet test-Standing under Katz “Degree of acceptance into home, that makes it temporarily his home: Minnesota v. Olson / US v. Jones- Probably no standing Minn. v. Carter

History: US v. Jones: established:

o 1. Automatic standing for legitimately on premises (invitee) ando 2. Automatic standing if formally charged with possession of any item

In the Vehicle: Rakas v. Illinois:

F: Officers stopped a vehicle—found shells and shotgun inside. Π’s were passengers and not owners, while owner was driving the car

I: May passengers suppress for a 4th amendment violation? R:

o 1. Jones automatic standing is overruled: Hasn’t been applied consistently Leads to vast application of ‘vicarious 4th amendment rights’this exacerbates

the social cost that exclusion already entails Merely being invited over someone’s house, under Jones allows them

to gain exclusion…this is too much Target Theory:

Attempting to find out who was the target of the police is almost impossible…not workable

o 2. Not a question of ‘standing’ Substantive 4th Amendment Court now considers it ‘substantive 4th amendment’ issue Not any change…but court feels it is more logical to use this ideal

o 3. Test: To determine if someone has standing to challenge a 4 th amendment violation

Katz creates the scope of protected interests of 4th amendment “Did person claiming 4th amendment protection have a legitimate

expectation of privacy in that location that society recognizes as reasonable?”

Jones: ∆’s were sleeping over someone’s apartment They had ‘reasonable expectation of privacy’ in sleeping at another’s

property that society recognizes Here:

Look to property interest, possessory interest in property as part of Katz

∆’s had no reasonable expectation of privacy in another’s vehicle Property owned, but in another’s possession:

US v. Salvucci:o Officially overrules Joneso Look to the facts to determine if ‘person had legitimate expectation of privacy that

society recognizes as reasonable’ This allows prosecution to argue that person had possessory interest of

contraband, but no standing to argue a 4th amendment violation Property Interest/Ownership Does not necessarily confer standing:

o Rawlings v. Kentucky: F: ∆ owned drugs and placed them in another person’s purse. Illegal search

exposed the drugs R:

1. While ∆ had possessory interest, under Katz he had ‘no legitimate expectation of privacy’ of his property in another person’s bag

US v. Payner: o F: The IRS stole a bankers briefcase and broke into it. They obtained information about

Payner, within the briefcaseo R:

No expectation of interest within the bag of another Court held Does not have supervisory power to suppress when no standing

Standing regarding Visitors in the home of another: Overnight Guests

o Minnesota v. Olson: R:

1. “Overnight guests” do have ‘legitimate expectation of privacy that society recognizes as reasonable’ when they are overnight guests in the home of another

‘Because there is degree of acceptance into the home, for a temporary time, it becomes nearly ‘their’ home’ for purposes of the 4th amendment

Have standing Temporary Visitors: Minnesota v. Carter:

o F: Officer observed, through a window, that men were bagging cocaine. He radioed information to begin getting warrant. 2 men then left, and were stopped and in plain sight gun was seen—they were arrested. In car grams of cocaine were found, gun, weighing scales, etc…

o I: ∆’s argue that initial search was illegal, and that they have standing as invitees to exclude all evidence found thereafter. Do visitors in home of another have standing?

o R: 1. Under Rakas, must show ‘Legitimate expectation of privacy’

Look at Real property interest, possession, personal property and what society recognizes as reasonable

Overnight Guests (protected, Olson)---Invitee (Not protected) Visitor is somewhere in the middle Court, under Katz will determine who has ‘legitimate expectation of

privacy in the home of another’ Evaluate Factors to determine what side of spectrum on:

o 1. Commercial Nature of visit Is the visit for business, or as in overnight guest,

‘acceptance into the home of another’o 2. Short Period of Time

Period of minutes, hours, or longer?o 3. Lack of Previous connection

the lack of any prior connection Here:

o Nature was business to buy cocaine, and was for only hours, and they had never met

o This was closer to an invitee then any temporary visitoro No Standing

o Scalia (Concur): Disagrees with Katz Textual Argument:

The 4th amendment says Their home, property…etc… Olson was the limit of who could possible think a home was

‘theirs’Overnight guests Visitors, invitees simply cannot reasonly conclude a home is theirs But, apartments, home, residents, and temporary overnight guests

do fit in As long as actually live there for some time…

o Ginsburg (Dissent): People in the home of another should share their ‘shelter from illegality’

The Rule Exclusion of “The Fruit of the Poisonous Tree” o Causation:

Excludes the original illegal evidence, and all subsequent evidence that the tainted evidence leads to The subsequent evidence is the ‘tainted fruit of the poisonous tree’ Illegality is the but for cause, which is necessary but not sufficient: Must also not be attenuated

from the illegality Standing:

Original Illegality:o Only those with standing to object to the original initial illegality can exclude all legally

found ‘fruit of the poisonous tree’ unless attenuated If no standing to object to initial illegality:

o The only way to exclude evidence, then, would be for a subsequent illegality in which you do have standing to object to occur

Fruit and Attenuation: Wong Sun v. United States:

o F: Toy was illegally arrested, and immediately implicated Yee. Yee was then arrested legally and found with drugs, and he implicated Toy and Won Sun. Won Sun was then arrested illegally, arraigned and let go. He came back several days later and confessed.

o R: Rule: Where evidence is discovered by the initial illegality, it must be

suppressed, unless it is sufficiently attenuated to ‘purge the illigality’ 1. Toy has standing for initial illegality: can exclude unless attenuated

Toy had standing for his initial illegal arrest Can exclude his statement It was fruit of the poisonous search It happened right after—not attenuated Toy can exclude all subsequent drugs found It was fruit of the poisonous search, and not sufficiently attenuated to

‘purge the taint of illegality’ Toy cannot exclude Wong Sun’s Confession—Attenuated

o Wong Sun came back day’s later, as “independent and voluntary, sufficient to attenuate the tainted chain”

2. Yee—has no standing to object to illegal Toy search Therefore, cannot exclude Toy’s statement Cannot exclude his arrest because not illegal Cannot exclude Wong Sun’s confession

3. Wong Sun has no standing in Toy’s apartment: has no standing to object to initial illegality Cannot object to any evidence unless another illegality which he has

standing for

Attenuation: All subsequent evidence that is tainted from the initial illegality must be excluded, unless it is

sufficiently attenuated to ‘purge the taint of illegality’o So although it illegality may be the ‘but for’ cause of something further down the

chain, if that later act is sufficiently attenuated, or removed…it is not tainted anymore…can come in

Brown v. Illinois: o F: Brown was arrested on his apartment stair for murder. He was mirandized, and at

police station, he confessed twice to the murder…one within 90 minutes of the arrest, and the other 7 hours later. Turned out, arrest had no probable cause so he motioned to suppress the confession.

o R: 1. Fruit of the Poisonous Tree ends when ‘evidence comes from an

independent act of free will’ This is sufficient to ‘purge the taint of illegality’- Wong Sun

2. Miranda Warnings alone do not end taint of illegality Then officers would simply say it many times and clean any illegality

that had occurred 3. Burden on prosecution to prove—to Determine if ‘evidence comes from

independent act of free will’ to sufficiently attenuate: 1. Temporal proximity to arrest

o Did evidence come immediately after arrest or hours, days, after

o The longer the time the more likely attenuation 2. Presence of Intervening circumstances

o Look at if Miranda given (not dispositive)o The more links in the chain, more likely attenuationo EG: Wong sun was arrested arrainged, went home for few

days and then came back…o Voluntarily come back

3. Purpose and Flagrancy of police violationo The more deliberate and intentional constitutional violation

the more reason to suppress all evidence traced back to it Fits exclusions purpose more

o But, when minor violation…more likely to be attenuated from the minor violation

oo Here:

Confession occurred only 90 minutes after illegality (versus days in Wong Sun), and second statement was result of the first

Purpose of officers was flagrant violation Example of Statements that are attenuated:

o Taylor v. Alabama: Police arrested π without probable cause. They took him to station where he was

given Miranda rights, fingerprinted, in lineup—after 6 hours he confessed R:

The causal chain was not broken, and was not attenuated 6 hours was not enough, even with Miranda

o Kaupp v. Texas: F: ∆ arrested without probable cause, took him to station where he admitted to

playing part in the murder. R:

Suppression must occur, unless ‘confession is act of free will’ which will attenuate the unlawful taint

Confession here occurred 10-15 minutes after Officers purposefully violated 4th amendment Exclude

Attenuation may Occur in 2 Ways: o Methods:

1. When Causal Connection is remote from illegality Above

2. When purpose of the rule that was violated would not be served by exclusion Also no causal connection between illegal search and evidence

o Framework: Determine Purpose of the rule See if it was violated

If Yes:o See if Exclusion would serve the violated rule’s purpose o Balance the Benefits and Costs of excluding in this scenarioo Hudson

If No:o Nothing to exclude…sufficiently attenuatedo New York v. Harris

o New York v. Harris: F: Warrantless entry into a home to arrest, in violation of Patyton occurred and

confession was made 1 hour later. R:

Purpose of the Rule A Payton violation is an illegal search of home, not illegal arrest

o When Payton violated, and house searched, then exclusion would serve purpose of rule

o If search turned up evidence Exclude Payton is not to protect against an arrest with probable cause

o May arrest in home without warrant if there is probable cause…so evidence from that arrest is ok, because no violation

o What was violated did not lead to evidence No exclusiono Hudson v. Michigan:

F: Police had a warrant, and waited only 5 seconds after knocking to enter the home. They found large quantity of drugs and gun. Π argues that violation of the ‘knock and announce rule’ should lead to suppression of all the evidence

R: 1. Exclusion is the Court’s last resort

o It has high societal costso Only applicable where deterrent benefit > Costs

2. Attenuation can occur 2 ways:o 1. When but for cause is remote, and broken, oro 2. When the interest/purpose that was violated would not be

served from the exclusion rule Categorize purpose of the rule violated Purpose must be to shield from government view of

evidence Would exclusion serve this purpose If yesnot attenuated and excluded

Purpose of Rule Violated:o Knock and announce is to protect officer and occupant safetyo They may violate already if they have reasonable suspicion

they may be harmed o Property, Privacyo But does not have the purpose of shielding evidenceo Exclusion is not applicable then, and this is attenuated

cause Costs and deterrent benefits of Exclusion:

o Costs: Significant social costs of ‘get out of jail free card’ In this scenario…officers may wait too long to not

violate…danger to them/chills enforcement Litigation would increase Imbalance with what was violated

o Deterrent Benefits: Will not deter here… Other Ways: Mapp was made in time when civil suit was not

available Now Civil suit of municipality has lead to greater

police training, internal investigations Easier to sue under §1983, and probably settlements

have occurred too And, cases that aren’t decided probably settle

Overall The purpose of the rule violated would not be served from exclusion, as Costs are >Deterrent Benefits

Consent May not break Chain of Causation, attenuating:

o The analysis for determining if consent sufficiently attenuated, to ‘purge the evidence of illegality’ is the same as in Brown

1. Temporal Proximity [Time between illegal conduct & consent] 2. Presence of Intervening events 3. Purpose/Flagrance of the initial misconduct

o US v. Hernadez: After an illegal search, ∆ consented to full search of the bag. Prosecution argues

that consent sufficiently attenuated, to purge initial illegality R:

No—occurred immediately after, without intervening events, and while not flagrant, was misconduct…so initial illegality tainted allno attenuation

Fruit of Poisonous Tree and Witness Testimony: o In general, Courts do not like applying the fruit of the poisonous tree exlusion of evidence

to live, voluntary witnesseso Ceccolini v. US:

F: the FBI, by using illegally obtained evidence, asked an observor of crime to testify against the ∆.

R: 1. Exclusion used reluctantly when claim causal relationship is

between illegality and live witnesso **Very Likely that live, voluntary witness will break chaino Costs of Excluding Witness:

Disables relevant, and material facts, and evidence unrelated to illegality, information

o Should only exclude live witness, when very close proximity between illegality and witness

Here: o Was 4 months after illegality, and witness had no idea about it

The Independent Source Exception: Generally:

o Along with Good faith, and Attenuation, the Independent Source exception is a way to avoid exclusion, by purging the illegality of any taint

Murray v. US: o F: Police watched ∆’s leave a warehouse they suspected of having drugs. The ∆’s left,

and were arrested. Then, the police entered the warehouse seeing many bales of marijuana. They have believed there were exigent circumstances, but were mistaken. They subsequently, without any mention of the illegality, obtained a warrant. Then, went back and ‘rediscovered’ the evidence.

o R: 1. Exclusion is to deter—“to put police back in position they would have

been, had illegality not occurred” When evidence is from an independent source, independent of

illegality, but is excluded anyway puts them worse offo Arguably—if put them worse off…may over deter, and chillo Putting them where they would have been adequately deters

any need to further their cause by illegalityo While one deters more then other, latter is sufficient

2. Evidence discovered during illegal search, but subsequently acquired through independent, lawful, untainted source

**The Independent Source (Warrant) must be untainted, to fully cleanse or purge chain of ‘taint’

o No illegal evidence used to get warrant

o Must show they would have gotten warrant anyway, and tainted evidence didn’t effect decision

“Where the facts render those assurances by police implausible, IDS doctrine wont apply”

Must be plausible they would have gotten warrant

Marshall (Dissent) o Will lead police who have probable cause to avoid getting warrant

Will Search First, and if nothing…go about their way If Something Will claim rule

They control what goes into warrant affidavit They will testify, easily they would have gotten anyway

o Will be “plausible”o This looks to subjective intentions…something 4th hasn’t done

The Inevitable Discovery Exception: In certain, exceptional circumstances, the Government may be able to show that the evidence

found illegally, would have been found anyway, and shouldn’t be excluded Nix v. Williams:

o F: In course of illegally obtained statements, the ∆ led the police to the murder victims body. As they drove him around, he didn’t have attorney, and actually violated the 6th amendment.

The Court wanted to hold a 6th amendment violation occurred, but didn’t want to exclude body of little girl by finding 4th amendment violation

o R: 1. If Government can prove it got no advantage from illegality, but instead,

would have found the evidence anyway 2. Must be proven by preponderance of evidence

If this rule didn’t apply, they would be put in a position worse off then they would have been, rather then the same position had the evidence not been found

o This is contrary to the deterrence principle of exclusion Protects the Deterrence of Exclusion:

The uncertainty, inherent, in proving the case is deterrent enougho Overall Effect of Rule:

Courts may use it as a safety valve When they see costs of exclusion ultra high (murder) The court may or may not turn to this rule

Application to Hypothetical Inventory Search: o Arguably then, any item on someone will inevitably be found in an inventory search at

stationo This, arguably, ends any incentive to seek a warrant in the first place, due to this ruleo However This rule is not automatico “Would have gotten warrant ”o Most Court’s do not buy these arguments

Because, that would mean having probable cause automatically means discovery is inevitable, making the warrant meaningless

Not the case—probable cause means getting a warrant…that is what makes it inevitable…because then, you had justification to search

Preponderance of Evidence needed to Establish “Inevitable Discovery Rule” o Courts look at What the officer/Police “Would have Done”

Not what they could have done You could discover anything given unlimited people and time…but that

is not realistic Look to lawful, actual means employed to show inevitability

Alternatives to the Exclusion Rule:

See Exclusion Document

The 5 th Amendment

“no one shall be compelled in any criminal case to be a witness against himself…”

History, Policy, and Rationales:

o 1. Judge Friendly’s Warning: Beware of “eloquent phrasing that bypasses analytical thought” It Generally hurts

Only applies to those who have broken the law, typicallyo Occasionally allows an innocent to be quiet avoiding bad performance

It is natural that when a question is posed, people feel a moral obligation to respond This rule is contrary And prevents convictions, restitution to victim

o 2. Cruel Trilemma: Argument: The Rule was created to avoid one being placed in a position, if under oath:

1. Incriminate themselves 2. If lied, would perjure themselves 3. If stayed silent, would be in contempt Note:

o Rationale is the strongest one Explains why brought to all proceedings, not just criminal…explains distinction

with testimonial and non testimonial evidence, with the former being ‘testimony’ and the person being a witness against himself subject to the cruelty of trillema while latter not

But, premised largely on the Religious, supernatural effect of the oath…not really applicable anymore…

o Alschuler: “The Peculiar Privilege” At common law, religious damnation, and supernatural sanctions for falsely

invoking God’s name, were risked as well as imprisonment if under oath and lied

Damned your soul Oath was coercive “Rack by Conscience” and considered torture Just the same as physical torture, if not more!

o At Common Law then, there was no right to silence, but instead right to method information gathered

In fact—they didn’t have counsel then, so they had to speak Avoid the “Rack by Conscience” by not putting them under oath, which is

typically what happened Solution:

This exists whenever a witness doesn’t want to testify, although perhaps not incriminating themselves, it incriminates someone

Don’t put them under oath, as CL dido Avoid Perjury

Europe: o Are not under oatho May lie

Although if caught, or jury figures out…will go against youo Employees and Family members are not put under oath to avoid cruel trilemma

Note: If this is the case, shouldn’t the privilege only apply when under oath?

o 3. Protection from a poor performance on the Witness Stand: Need due to our system:

In our adversarial system, cross examination is designed to trick or make you look like you are lying

o Exacerbates any issue in your testimony, making an honest person look like liaro Tries to gather evidence

Protect the less intelligent, sharp people from being convicted merely because they are inarticulate Based on our design of system then, the privilege is needed to avoid poor performance Defense Attorney:

o Will specifically tell you not to testify

o They cannot control what questions are asked, or if you’ll get angry, wrong answer… Europe:

Uses a different system, where the Judge questions System is not adversarial it is inquisitorial Incentives to Speak, and Judge in Charge makes the ∆ a primary source of information

Solution : When you take the witness stand Your prior criminal record automatically comes in, and can be

used to attack your credibility, believability, making you look bad Montana Rule:

o Prior convictions are not allowed in to attack credibility Europe:

o Past Record comes in automaticallyo Uses a different system

Because their trials, unlike the United States, are not bifurcated in sentencing and penalty phase

Instead, they are done all at once Scholar Arguments:

Seidman:o The Jury will presume those who stay silent are guiltyo However, those who speak are innocento Without the 5th amendment then, it would be difficult to distinguish for the jury

Bibas Response:o This is unrealistic, and inaccurate o In our system, most confess, take plea deal and cooperate

Note: If this is the case, shouldn’t it only apply in trial?

o 4. Privacy: The 5th amendment is part of the Framer’s obvious intention to cherish, and protect privacy That each individual is entitled “to a private enclave where he may lead private life” free from intrusion of

government Argument:

o This seems to follow along with 4th amendment strong privacy interesto Freedom from European Model that sought the ∆ to speak

However:o In Framers time, ‘privacy’ was in property…so does not really apply hereo Also They didn’t have lawyer to speak at Common Law, so they were not really

private, but instead spoke quite a bit o But, may, in some contexts apply…some ‘internal privacy’ or enclave

o 5. State—Individual Balance: Our system is designed such that the Government bears the burden of ‘shouldering the entire load’ during

contests with individual…the accusatorial system The threshold proof must be met to infringe on ∆’s privacy interest Therefore, the privilege goes hand in hand with this However:

o Isn’t that what Probable Cause does prevent government overreachingo Shouldn’t all participation of ∆ then be avoidedo Contradicts idea that 4th amendment actually allows the ∆ to be used against himself…

finding evidence, etc… Distinction between testimonial and not as well…physical evidence is ∆’s but

used against him…o 6. Physical Torture:

Statements that incriminate you, may be pulled out using tortuous or inhumane methods However:

o 5th and 14th amendments already deal with this…so we really do not need another place in the Constitution to deal with it…

o Torture is unacceptable anyway, without a special constitutional provisiono 7. Deter Perjury:

People may, without a privilege not to be compelled to speak, would often times perjure themselves However:

o Perjury exists whether one is under oath, or not, or a privilege does not exist o When the ∆ stays silent, and does not speak, that too burdens the judicial process

similarly to perjury o 8. Reliability:

Testimony that is compelled is not reliable So, we prohibit it with the privilege, and acts of free-will are acceptable

This rationale applies quite a bit, but not to all 5th amendment issueso 8. Personal Autonomy:

You should not be used as an instrument of your own conviction Note:

If this is the case, shouldn’t it apply to handwriting, and voice-lineup samples? ∆ had to speak pre 19th century, when he had no attorney… They use physical fruits, non-testimonial evidence from you…doesn’t line up

Application: o To Apply:

1. Must be Compulsion 2. Must be Testimonial evidence 3. Must be able to use testimonial evidence in subsequent criminal case (Not immunized)

When does the 5 th Amendment Privilege Apply: o Couselman v. Hitchcock:

Is not limited to those prosecutions solely against that person “You may invoke the 5th amendment privilege in any federal proceeding (Civil or Criminal) that could

subsequently be used in a criminal proceeding in the United States 1. Must be subsequent Criminal

o L.O. Ward Test to determine if Criminal or non-criminal proceeding Large deference given to Legislature’s Label

o Note: Probation hearing is not criminal

2. Proceeding:o You may invoke the 5th amendment in any proceeding…

Invoke in Civil Criminal Grand Jury Disbarment Bankruptcy Court Legislative Hearing

If Immunized from future criminal proceeding 5th amendment Privilege does not apply, and you may be compelled to speak!

Who May Invoke/Assert the Privilege: o A personal right, only the person who is himself incriminated may invoke it

Person: Human Partnership and Corporation are not people “Collective Entities Rule”

o Oddity: Corporations have 1st and 4th amendment rights Perhaps because they may not actually speak, but their agents may? Whereas in 4th amendment, business may be searched, and 1st amendment,

corporation may have speech

o When the Privilege is invoked Government may still continue to investigate you

Must be Compulsion o Generally:

This is a determination of what type of pressure is sufficient to be deemed compulsion Generally, those that penalize you are compulsion

o 1. Contempt Holding you in contempt for invoking your privilege is compulsion

o 2. “Substantial Economic Sanctions” Lefkowitz v. Turley:

F: Statute required that those receiving contracts were required to testify and waive their 5th amendment privilege, and if they did not, their contracts would be cancelled.

R:o Garrity v. New Jersey and Gardener Compulsion was being firedo The threat of substantial economic sanction is compulsion o What Rationale?

Torture? Perhaps definition has changed…but same subsidiary idea is that you

are being forced, against your willo 3. Threat of Disbarment:

Spevak v. Klien: Disbarment of a Lawyer for invoking his 5th amendment privilege is compulsion

o 4. Benefit or Penalty Evaluation: Penalizing the suspect/∆ for invoking his privilege is generally seen as compulsion When a benefit is offered and denied, however, if ∆ fails to waive his privilege

The Court has not considered this compulsion United States v. Cruz:

F: The ∆ was going to be subject to the mandatory minimum sentence, but was offered relief from the mandatory minimum if he provided evidence…

R:o 1. The Penalty cases involve a loss, or reduction of the status quoo 2. Withholding a benefit, however, is not a loss of the status quo…it remains the same,

had the benefit not been offered—a carrot is oko Although it still seems to penalize, or compel is waiver of privilege, had the Court

invalidated All Plea Bargaining would be unconstitutionalo 5. Compulsion From Comment by Prosecutor/Judge Adverse Inference at Trial:

1. Griffon v. California: No Adverse Inference may be given from invoking the rule, and not testifying by Judge or

Prosecution 2. Carter v. Kentucky:

The Judge must give an instruction, upon request, that Jury is not allowed to draw adverse inference

3. Lakeside v. Oregon: If Judge instructs jury not to draw adverse inference, defense may not object

Rationale Does Adverse Inference Penalize? Jude Posner:

o Argues No Juries will draw the inference anyway o Scalia agrees with this in Mitchello It is the natural consequence of someone not speaking up

Maybe:o Jury may not realize that ∆ hasn’t spoken yet, and may suspect something when Adverse

Inference Given European Courts:

o Judge and Jury may draw inference, but must explicitly state that there may be other reasons that the defendant is not testifying

o Note, this is another incentive to speak…but this is largely due to their inquisitorial system

4. Mitchell v. United States and Adverse Inference at Sentancing: F: During sentencing, the judge specifically stated that he was persuaded by her remaining silent R:

o 1. Sentencing is the explicit concern of the self incrimination privilege…that procedure be followed, whether guilt or innocence

o 2. The Privilege applies with equal force at sentencing as trialo Rationale:

Poor Performance Rational Does not Apply Cruel Trilemma Doesn’t Apply—already incriminated

Scalia Dissent: o Thinks that the Cruel Trilemma and Torture are the controlling rationales

Therefore, in sentencing, because we have a bifurcated trial system, these are not evident

This is not compulsion o Text says “case” and sentencing is not a case…so 5th privilege shouldn’t extend this far

Thomas Dissent: o Thinks that at sentencing, not getting a benefit by staying silent of reduced sentencing …

This is the same as Plea Bargain rationale above, and therefore it is not compulsiono By Text, the constitutional guarantee has been fulfilled, at the trial

Adverse Inference in Civil Case: Baxter v. Palmigiano:

o The 5th amendment allows an adverse inference to be drawn in a civil case if they refuse to testify

Note: While you may not be compelled to testify, without being immunized, there are certain

circumstances where invoking the 5th amendment may be harmfulo 1. Failure to Take stand in Self Defense Trialo 2. If in your trial you are innocent, a 3P who you want to testify because they may be

guilty invokes their 5th Amendment Privilege it is not done in front of Jury to stir their suspicion Lose your ability to question them

Only Testimonial Evidence is Protect under Privilege: o Generally:

The privilege only protects the person, when that person is being compelled to be a witness against himself Not all compulsion then, is protected, but only compulsion of protected information

Testimonial Evidence is Protected Non-Testimonial evidence is not o Testimonial versus Non-Testimonial Evidence:

Schmerber v. California: F: Petitioner was arrested, and while in hospital receiving treatment, blood was taken from him.

He argues that this violated his 5th amendment privilege R:

o Testimonial Evidence: Is protected Communicative

Words, spoken, written, nod, gesture…o Non-Testimonial Evidence

When someone is merely the source of physical or real evidence Fingerprints, photographs, lineup, blood, writing sample

The Majority says that while many things ‘communicate’ some information, the 5th amendment only pertains to communicative nature of the person who privilege applies…even if non-testimonial evidence used to get others to give testimonial evidence…That is not enough as the 5th privilege only applies to that person

Here: Petitioner did not communicate anything, but was merely the source of

physical evidenceo Rationale:

Reliability: We want testimony that is reliable Here, He is not saying anything so we avoid unreliable compelled

testimony, but the physical evidence is very reliable Handwriting Samples:

Glibert v. California: o Handwriting samples, while compelled, are not ‘testimonial evidence’ that is protected

under the 5th amendment privilege o Only physical characteristics/evidence were used Non-Testimonial

Line-Up: U.S. v. Wade

o A line-up only provides physical evidence, that is not testimonial PA v. Muniz:

In Muniz, the Court provided the rationale for the testimonial / non-testimonial distinction it is determined by a modern version of the Cruel-Trilemma

F: ∆ was pulled over and failed DUI test. At station, they asked him “what the date of his 6th birthday” was. He incorrectly answered. The manner and content of his answer was used at trial, and he moved to suppress because it was given without Miranda warning

R:o Manner: The manner in which he answered, slurring his words, was non-testimonial,

physical evidence Merely physical properties, are non-testimonial Sobriety Test was not-testimonial

o Content: Although Officers were not interested in the answer, but in the manner in which

his brain was working (coherent or not), the Court held this to be communicative They gathered that physical information through his testimonial, words “When a response is requested, that communicates an express or implied

assertion of fact or belief” --Testimonial Cruel Trilemma :

o When the suspect does so, he is faced with cruel trilemma because he can respond truthfully, falsely, or stay silent

o Physical Evidence, however, is not true or false It just is there, and not subject to cruel trilemma

Psychological Evaluation: Estelle v. Smith:

o When a ∆ is interviewed by a government psychiatrist who will testify about the answers, the answers are testimonial

o The Doctor using the answers as his basis for opinion is using testimonial evidence o Documents:

Basic Rule: Voluntarily prepared documents are not testimonial

o Because previously prepared, they are not compelled when requested to produceo Does not become retroactively compelledo Treated as Physical evidence

But, Act of producing may be testimonial if:

o 1. Mere Existence is incriminating Generally not the case…

o 2. Control or Possession is incriminating o 3. Authenticity may be incriminating o Generally, it is quite rare and the introduction of documents as evidence is ok and does

not implicate the Privilege as the documents are non-testimonial Immunity:

o A person may not be compelled to be a witness against themselves if it may be used against him in a subsequent criminal proceeding

Immunization ends the possibility of subsequent criminal proceeding When Gurantee is given, one may be compelled to give testimonial evidence

You have no right to refuse to testify May be penalized for it Rationale:

o The Cruel Trilemma is over—Your not incriminated by telling truth…o The Type of Immunity Required:

Pre-1972: Transactional Immunity:

o You can never be prosecuted for acts in testimony Even if there is other evidence that exists, once it is testified to, it is finished… Intelligent criminal…will spit out every possible infraction they’ve done

o No longer Constitutionally required, but may be offered Post-1972:

Kastigar Immunity (Derivative, Use-Fruits)o Testimony cannot be used against youo Anything your testimony leads to, may not be used against youo However:

Government may prosecute you for crimes if they meet burden of proof that the evidence it is using against ∆ is

from a legitimate and independent of any testimony you gave 2 methods to prosecute If Kastigar Immunity:

o 1. “Chinese Wall of Silence” End involvement of Prosecutors that took testimony, with no contact and none

of them involved in case any more Whole new crew of attorneys must handle—without familiarity

o 2. “Canning” Investigate as much as possible prior to grant of immunity Once evidence is gained, it is independent of testimony taken Then, you may offer immunity, and still prosecute

o Impeachment and Perjury: Once immunity has been granted to a suspect, none of the suspects testimony may be used against the

witness during trial Even if witness is certainly perjuring himself compared to his testimony

However: US v. Anfelbaum:

o Subsequent perjury prosecution may occur for false statements that occurred at underlying trial

If not, immunity would be used, and taken advantage of to taint the whole trial When immunity is given—you have an option to speak without threat of

prosecution or stay silent and get consequences—lying is not an option o Previously Immunized Statements made Subsequent to Immunity:

When a witness has been immunized, and subsequent to immunity makes identical statements Pillsbury v. Conboy:

o Prior grant of immunity does not continue one…it is insufficient to protect, and new immunity must be granted

Confessions & Due Process: o Historically:

There have been 3 distinct methods of dealing with Confessions 1. 1936- Present: 5th and 14th Amendment Due Process Clause

o Brown v. Mississippi 2. 1964- Present: 6th Amendment Right to Counsel 3. 1966- Present: The 5th Amendment Privilege against self incrimination

o Miranda At Common Law:

“Coerced Confessions” Rule: Confessions that were based on threats and promiseso Unreliableo Torture

This rule was essentially established in the Due Process Line of Confession Cases A Oddity Bram v. United States

o In 1897, The Bram Court utilized self incrimination clause of the 5th amendment to find statements under torture inadmissible

o Prior to this, Only Common Law Rule and Due Process were used, and the 5th amendment Privilege would not be used untill 1966 in Miranda

o The Due Process Approach Note:

Even where one rule applies, the Due Process Approach always fills in Totality of the Circumstances:

Evaluates a case-by-case approach comparing the o 1. Voluntariness of the ∆ to the o 2. Police Misconduct

Evaluate: o 1. Personal Characteristics of Accused:

Youth Education and Mental Capacity Foreign Alien Hardened Criminal, Articulate and Educated

o 2. Physical Deprivation or Mistreatment: Lack of Food, Sleep Physical Abuse Amenities Given Length of Interrogation

Scientific evidence shows that over 2 hours, there is a psychological change that occurs, breaking people (note average false confession was 16.2 hours!)

o 3. Psychological Pressure: Threats Humiliation Isolation and Incommunicado Interrogation Length of Detention Dark, Uncomfortable Deception, Lies Rewards to Confess that are untrue

o 4. Warnings: Sometimes, pre-miranda, court would evaluate whether the ∆ understood his

rights and new his right to counsel Policy:

o Measuring what is still voluntary Police Coercion is too much How deceptive and coercive should police be allowed to be?

Criticisms of “Voluntariness Standard” 1. “Voluntary” and “TOC” do not give officers any clear guidance or lower courts 2. Even the Justices disagree as to what the appropriate weight is given to factors 3. The Point of Interrogation is to coerce the Person to Admit

o When Person is about to confess, interrogator is supposed to continue o But can misjudge with TOC test

Alternatives to Voluntariness or Miranda? o Legislature

Pass maximum hours allowed, require lawyer for minors Limit the deceptive techniques allowed Prohibit Physical touching

Modern Cases and Application: Generally:

o Still used, even post-Miranda and fills in gaps What’s Allowed:

o US v. Astello: 18 year old boy, interrogated, incommunicado, said his family didn’t respect

him anymore, insulted him and gave him ultimatums R:

1. “Obviously, the interrogation of a suspect will involve some pressure; its purpose is to elicit a confession

2. This was ok…occurred for less then 3 hours, and tactics that were permissible, were used to elicit a response

o Sumpter v. Nix: Low IQ, Psychological Problems, and false promises, and 7 hour interrogation

were ok) Modern Focus is on Police Misconduct:

o Colorado v. Connelly (1986): F: ∆ ran up to police and confessed that he had murdered someone and wanted

to tell them. They mirandized him, arrested him. Turned out he was crazy and voices told him what to do.

R: “Coercive Police Activity is necessary…to find a confession is

involuntary” Physical Torture:

o Brown v. United States: ∆’s were tortured repeatedly, beaten, abused, until they confessed Due Process requires that governmental action be ‘consistent with

fundamental principles of liberty and justice’ There is no more revolting method then physical torture

Threat of Physical Violence: o Arizona v. Fulminante:

Confession was made by a prisoner to informant who said if he didn’t confess, the other angry prisoners for what he had done would get him

R: A Credible threat of violence, even though no actual violence

occurs, and misplaced hope if confession occurs may be enough in the TOC to make involuntary

Deception and False Promises: o Courts are Split, in Sully allowing false promises and in Baldwin noto Green v. Sully:

F: Threatened with Death Penalty, with state that doesn’t have it, lying about evidence, false promise to get treatment for suspect, lying about fingerprints at scene.

R: He Confessed because he didn’t want to do it again he stated Not because the tactics overbeared his will, making it involuntary

False Documentary Evidence: o Florida v. Cayward:

F: Police fabricated a DNA testing report, which stated his DNA was found. ∆ Confessed

R: While Oral assertions are one thing, documented are another

o Are more impressive o Practically—may find their way into court somehow, and

may last indefinitely

o Honest Promise: US v. Baldwin:

Buying information is acceptable with honest promise Cooperation is favorable, as it speeds up judicial process False Promises, however, are not acceptable as it impedes the ability to

make an informed decision Posner’s Criticism on “Free Will” Test:

o Almost all interrogations would be excluded then Few are actually part of free will

o Few are excluded, even though few are product of true free-will

o Connelly sort of killed ito Ask “Could ∆ have made a rational choice as to whether to

confess” This seems unworkable however, as mentally

deficient people may never be able to make a rational choice…?

Spano v. New York: o F: Spano turned himself in. Questioning was persistent, continuous, and eventually his

friend who was an officer was brought in—His friend told him, after 5 hours of questioning, that the ∆ was making it hard on him and his children because he might get in trouble if the ∆ didn’t cooperate. Also, throughout the process, Spano’s requests for his attorney were denied

o R: Society Dislikes Involuntary Confession for 2 Rationales:

1. Unreliable 2. Police must also follow the law while enforcing it (Connelly)

Court Looked at: Leading questions, uneducated, foreign, throughout night questioning,

ignored requests of attorney Majority Held:

Involuntary Douglas Concurrence:

Because he had been formally arrested, and indicted, the Concurrence felt this was a violation of his 6th amendment right to an attorney

Thought that denying a man formally charged and being held his attorney, was more damaging than not having an attorney in the trial

Policy:

1. Throughout the due process case law, the Court backs away from the reliability concern with Connelly and Spano

2. Uncertainty as to how to apply the test and which factors are weightier o Lower Courts and Police are uncertain

Following Connelly and Spano, the court disliked the Due-Process Totality of Circumstances Testo In 1964- Malloy v. Hogan:

5th amendment privilege against self incrimination incorporated to states

5 th Amendment Limits on Confessions and Miranda o Miranda v. Arizona:

F: Miranda was horrible criminal, indigent Mexican murdering rapist. R:

1. Custodial Interrogation Is Coercive and Compulsion o Modern psychological tactics (because physical isn’t as much a concern anymore) are

coercive when done in private interrogation The Tactics used exact a heavy toll on liberty, weakening suspect

o Interrogation is incommunicado, intimidating and is Compulsion o Compulsion is inherent in custodial atmosphere—so the 5th amendment privilege against

self incrimination is obviously connected 2. The 5 th Amendment Privilege against self incrimination applies to Custodial interrogation

o Because of the nature, techniques, and surroundings Compulsion Maybe even greater then that of a Future Court proceeding

o Without protection, not ensured to be product of Free Willo The 5th amendment privilege is available outside of criminal court proceedings, in all

areas where freedom of action is curtailed in a significant way from being compelled 3. Encourage States and Congress to search for means of protecting individual too

o “However, unless the procedure is at least as effective in apprising the accused persons of their right of silence and assuring continuous opportunity to exercise it, Miranda warning will suffice”

4. Miranda Warning must be given, as absolute prerequisite if “Custodial Interrogation” o 1. “The Right to Remain Silent”

Purpose: a. Those unaware get notice of their rights b. Overcomes the inherent pressure of interrogation atmosphere c. Legitimizes the right, as Police will recognize it

This 5th Amendment privilege is so fundamental, it does not matter who the ∆ is Warning must be given, regardless of who (Lawyer, Detective)

o 2. “Anything said can and will be used against you in court” Purpose:

a. Alerts of privileges weight and consequences of forgoing it b. Promotes Understanding c. Awareness that those around you are adverse to your interest…acting

against himo 3. “You Have the Right to an Attorney”

Purpose: a. The circumstances of interrogation and custody are quick, and can

overbear free will b. Assures that right to stay silent remains unfettered c. Lawyer may mitigate chance of police misconduct/coercion d. Guarantee that accused is accurate, and recording is accurate

Failure to Ask for a lawyer is not a waiver Must be a specific waiver after warnings given Does not require a lawyer be present, but allows the right to have a lawyer

throughout the interrogationo 4. “If you cannot afford an attorney, one will be appointed for you”

Purpose: a. Constitutional right applies to all, “Indigent as well as affluent” b. If was based on $, warnings would be useless and “hollow” c. Would allow taking advantage of poor

5. Effect of Warning: o 1. If suspect indicates in any way, he wishes to remain silent Interrogation must cease

Purpose: Without this right, interrogation allows individual to be overcome, and

free-will overrun o 2. If suspect indicates he wants his attorney Interrogation must cease, until an attorney

is present Purpose:

Opportunity to confer with attorney, and have him present Effect:

This does not mean that police station must have a ‘station house lawyer’

It person requests lawyer in the field, and authorities determine they cannot provide one in the field, they may refrain from giving him his lawyer without violating 5th amendment rights as long as no interrogation occurs during that time

6. Waiver: o “A Heavy Burden” exists on the government to demonstrate that the defendant

knowingly and intelligently waived his privilege against self incrimination and right to counsel or appointed counsel

Harlan (Dissent): 1. In the past, due process limited coercive police tactics

o This takes it a step further, and considers all confessions as coerced without warningo Neutralizes Interrogationo “Voluntariness with a Vengeance”o The 5th amendment has never been read to end all pressure

No Precedent supports this In fact, the majority rule prohibits pressure under 5th amendment, while

due process clause precedent permits much worse 2. Extending the 5th amendment privilege to the station isn’t an impermissible reading, but this

reaches too faro “Case” in text limits the reach

3. Combination of 5th and 6th amendment hybrid approach is wholly judicial creation o No reason why 6th amendment in criminal trial extends here…?

4. Notice of ones rights is not prerequisite under 5th amendment o Counter Argument:

Warning is merely reiterating what is in the text, or inferred from text…? White (Dissent)

1. The warnings that are created by the court, and idea that interrogation in custody is forbidden by the 5th amendment privilege is without any support in history, text or precedent

o Common law never applied privilege this far 2. There are other methods to accomplish the same thing

o Transcripts, observors, time limits, other devices…all would accomplish same thing to avoid coerciveness

3. The 5th amendment has dealt with coerced confessions o Not all are forbidden, just those that are compelled

4. This treats all confessions as coerced now 5. Warned with great prescience, that you want to protect people from the Police, yet have them be

the ones who give the warning!?!?o Note:

In Europe, a lawyer must be present at all times (Miranda doesn’t require at all times, but allows right)

Unlike America, Inference may be drawn if stays silent o Post-Miranda:

The Effect of Miranda: 1. Although arguable, apparently the history of the privilege against self incrimination is

ambiguous to allow it to reach to the police station 2. Professor Schulhofner:

o Miranda has substantial benefits compared to minimal costso Now, The pressure needed to be “compelled” does not have to rise to the Due Process

standard…it is much lower…and this falls in line with Privilege precedentany pressure violates it

The due process standard and Miranda self incrimination standard are not the same

o Prior to Miranda: 5th amendment didn’t apply to interrogation because there was no penalty for

failing to speak No Compulsiono Miranda:

Changed this 5th amendment Privilege applies, and all interrogation is compelling by the nature of incommunicado, police process

Judicial Review and Education to Public: Miranda court had 2 distinct goals

o 1. Clarify Judicial Review Using the Due process TOC is very difficult to determine what is coercive

versus free will The Witnesses are Police man

Miranda allows a prophylactic rule If warnings not given, interrogation is tainted If warnings given, even though could violate due process, more

confident in confession Counter Arguments:

1. White Dissent: Other methods are better –tape record, heavy burden on police to show voluntariness

2. Courts still rely on the Police testimony to determine how and when the warnings were given

o You still run into the same issue as due process—Police word versus ‘victim’

o 2. Education of Public Our education process does not teach Constitutional Rights So, Miranda is necessary as it makes government the teacher of rights and

educates suspects about real choice and rights in interrogation process Counter Arguments:

White’s Dissent—relying on the police to give the warnings…the very people you wanted to protect from

o We have a magistrate as a check on police in 4th amendment issues…requiring a warrant as a check

o But here, we rely on the police to be the sole check on themselves and on making sure the suspect, person they are empowerd to seek, has his rights respected

o However, we cannot have to take a suspect to a judge every time to get his rights read to him

Why the Rights listed—why not more or less?o 4 warnings are arbitrary?

Why those, why not more—telling suspect what happens if he simply stays silent

Does he know he can stop questions at any time?

Will he even understand the rights given, let alone more?

Impact of Miranda: 1. Although the numbers show that confessions have fallen, the conviction rates have not 2. Some argue that the costs imposed are limited…

o Counter Argument: Takes Longer—The less confessions, the more long and protracted investigation

and litigation are…tax dollars at work, so there is a cost of Miranda Professor Inbau & Manak:

Miranda issues take up a lot of time in Court…so costs are thereo Although they do not compare it to time to decide same issues

if Miranda was overruled 3. Professor Cassell:

o Miranda substantially harms the innocent, including victims of criminals not caught due to Miranda safeguards, and innocent people who are accused of crime but because of Miranda, the truly guilty stays silent rather then confessing

4. Some argue that it has not had any significant effect at all o Then what is the point?

If it doesn’t effect confessions or convictions, then why have it? Maybe that wasn’t the purpose of the ruling—rather, it was to eliminate

compelling pressure in the process of gaining them…the method Modernly, confessions may not have decreased, but they are not

extracted through fear and undue pressure…just pursuasion 5. Benefit to Police:

o Following Dickerson, upholding Miranda as a constitutional rule—perhaps it was created for the police benefit. If they simply give 4 easy warnings, they are almost guaranteed to be ok. Workable and Pro-Cop

A. They have learned how to bend and get around using it B. It’s a Bright Line Rule, that’s easy to use rather then Totality of

Circumstances C. Give them the Miranda warning, and then get a waiver!

Get it in writing, and signed The Miranda Waiver has substituted any due process analysis

o Once the Waiver is signed—its presumed they knew their rights, and voluntarily complied

o Miranda becomes a Constitutional Rule: Dickerson v. US:

F: Congress created §3501, in an effort to overrule Miranda and go back solely to the Totality of Circumstances Approach, under due process. ∆ was charged with bank-robbery, and moved to suppress his confession on grounds that he didn’t get Miranda warning.

I: Was Miranda overruled? R:

o 1. 3501 was intended to overrule Miranda by treating the warning as a factor o 2. Miranda is Constitutional Rule:

1. Congress may overrule a Court decision, unless that rule is constitutional 2. There is some language in Miranda opinion pointing to it not being

constitutional However, that decision applied to state courts—The Supreme Court

cannot make a rule effecting the states, unless it is constitutional 3. Even though there are exceptions to Miranda, there are exceptions to all

constitutional rules—no justice can foresee every possibility 4. Miranda stated that it could be replaced if there was adequate replacement

§3501 puts the warning as a factor That’s not replacement 5. Stare Decisis:

The Court will not deviate unless there is a special justification o Miranda is relied on by cops, and part of our national cultureo Doctrinal underpinnings of decision are intact, and have not

been eroded by subsequent caseso It is better and easier for officers to administer than the

Totality of Circumstanceso Miranda is Constitutional Rule

Scalia Dissent: o The Constitution disagrees with coerced confession, not just confession

Miranda treats every word said, without warning, as coerced o Precedent and Miranda stand for idea that it is not constitutionalo Disregarding congressional action is a violation of Separation of Powers

o Threshold Issues of When Miranda Applies: Generally:

Miranda warnings must be given whenever a suspect is in ‘custody’ and being ‘interrogated’ Although the Miranda court intended to do away with the TOC analysis, fore ease of use to

officers, that type of analysis is used in determining custody and interrogation Custody:

Overall, Courts have identified a number of factors to determine…and while not controlling, some things to look for

o Whether the suspect was informed during questioning that it was voluntary, free to leave, or that he was not considered under arrest

o Did suspect have unrestrained freedom of movement during questioningo Did suspect initiate contact, or voluntarily acquiesce to official request too Strong arm tactics, deceptive strategieso Was atmosphere police dominated (A primary concern of Miranda)o Whether suspect was placed under arrest o While is a Balancing Test, there are 2 Rules:

1. Look at whether a reasonable person would feel free to leave 2. Test is Objective

Stansbury v. California: o The officers subjective intentions or state of mind are not

relevanto Whether the officer thought the ∆ was in custody or was a

suspect isn’t relevant unless: 1. The subjective thoughts are manifested to the

person being interrogated, and 2. it affects how an ORP would feel free to leave

Personal Characteristics are not relevant: o Yarborough v. Alvarado:

Youth and inexperience is not a factor in the ‘reasonable person’ analysis

Outside of Stationhouse: o Arrest is Custody:

Orozco v. Texas: Officers rushed into bedroom, at 4am, with guns drawn, yelled under

arrest This was custody Bechwith v. United States:

IRS agents were at home, discussing tax returns, and criminal tax evasion in ∆’s home—not custody

o Didn’t have any coercive natures of stationhouse At Stationhouse:

o There is no automatic rule that one is in custody just because they are being questioned at a station house

o Oregon v. Mathiason: ∆ was requested to come to the station for questioning…he did so completely on

his own and voluntarily, and was told he was not under arrest Voluntariness was Court’s concern

o Because he came there on his own, was not custodyo California v. Beheer:

Suspect agreed to accompany officers down to the station for questioning He was, throughout the time told he was not under arrest, and was released after

he confessed to the crime anyway. In the TOC to an ORP, this was not custody

Voluntariness is a key factor the courts look for in determining whether custody occurs or not

Terry Stops: o Berkemer v. McCarty:

Terry stops are not custodial for the purposes of Miranda While by definition above of what ‘custody is’ a terry stop would have to be

custody, the Court has stated that Miranda was concerned with the coerciveness of the ‘stationhouse’

Terry stop does not occur in station house, and lacks the generally inherent coercive nature therein

o The stoppee expects the event to be quick, and breif… Legal Fiction Again, the court contradicts its rule above, and the idea

that a stop or encounter is not coercive… Squad Car:

o This may be closer to the station house, voluntariness rationale It is police dominated, and based on facts, you may not have been put in there

due to your acquiescence…depends on facts, but perhaps may be in custody Interrogation:

Rhode Island v. Innis: o F: ∆ was mirandized several times. He invoked his right to counsel. On the drive away

from crime scene, officers began talking to one another, stating ‘it’d be a shame if a kid found that gun and hurt themselves.’ ∆ then asked the police to turn around and showed them where the weapon was

o I: Is this an interrogation?o R:

Interrogation: An express question directed at the ∆, or its functional equivalent

including any words or practices, that Police should know is reasonably likely to illicit a response from a average suspect

o So, Police are not responsible for all words said by the ∆o Only those they should know are reasonably likely to elicit a

response from average suspect Focus is on suspect

o Police Intent is relevant when: Police have designed their words to elicit a response

from an individual with an idiosyncratic or peculiar susceptibility

Arizona v. Mauro: o ∆ showed police person he killed. They mirandized him, and then had his wife go talk to

him while they recorded the whole talk—he confessed. o No Interrogation:

Just because officers hope someone incriminates themselves does not make it an interrogation

What the Court seems to really be looking for is the question being directed at the suspect

o If it is likely to be interrogatono If not probably noto Someone what of a third element to the test

The Booking Exception: o Normal questions during the booking procedure do not require Miranda:

1. If proper administrative purpose and 2. Person asked by a routine booking officer, rather then a detective

Miranda Does Not apply to Undercover Police Activity: Does not apply:

o Because the suspect is not aware he is speaking to an officer, that is undercover, there is no ‘inherent stationhouse’ compulsion

o Invoking your Miranda Rights: How To:

Davis Rule: “Must do so in an unambiguous way”o Applies equally to both rightso Is Not Offense Specific:

Once you have invoked your Miranda rights, police cannot interrogate you for any crime at all (assuming right to counsel invoked)

It is a blanket rule Note:

This is unlike the 6th amendment, where it is crime specifico So police stop regarding that crime, but may continue to deal

with you regarding other crimes The Effect:

The Right to Silence:o Mosely Rule: Once you invoke your right to silence, police may try again after allowing a

cooling off period For instance, 2 hours, fresh Miranda Warning and different interrogator suffices

The Right to Counsel under 5th o Edwards Rule: Once invoked, all questioning must stop

The only way it may restart, is if suspect re-initiates the conversation o Waiving your Miranda Rights:

For a suspect to waive his rights, it must be “voluntary, knowing and intelligent” Voluntary “A free and deliberate choice, rather then intimidated, coerced or deceived” Knowing and Intelligent “Must be with full awareness of right and the consequences of waiver”

The Government bears the burden to prove that you waived your right Modernly:

o Police officers utilize a form They will read you your rights, ask if you understand them, and have you sign it On that form it may say you’ve waived your rights

But it is voluntary, knowing and intelligent Burbine v. Moran:

Events outside of the suspect’s knowledge do not affect waiver!

How do police get around it? Offer you the ability to help Monologue—speak for a while so you simply cannot interrupt them to invoke the right Written Form—instead of saying it, its read and treated like a beurocratic issue and simple ‘house

keeping’o Reduces the impact of a statement

Keep Controlo Where your seated, where they’re seated

Chit-Chat

o Speak to you to get you to loosen up, just chatting about life in general, etc…and then give you the warning

The Whole Goal:o That police have in mind is to confuse you, treat Miranda like a small issue, and to

convey it in form but not in its real substanceo Depending on your crime and personality, they may crowd your space, they may

compliment you, etc…all in order to confuse and make you think about anything else but your right

o Exceptions to Miranda: Generally:

In certain scenarios, custodial interrogation that was not given Miranda warning is admissible 1. Impeachment:

When statements made without Miranda warning do not match those given on the witness stand, the Court has allowed the Miranda-less statements to impeach witness

Harris v. New York Impeachment and Silence:

o 1. If you are not Mirandized, and remain silent standard rule of evidence applies, and silence may be used to impeach you

o 2. If you are Mirandized, and remain silent your silence may not be used against you Doyle v. Ohio: Due Process prohibits the right to silence to be used against you

2. Emergency Exception: In emergency situations, no Miranda warning is required and if interrogating person which leads

to physical evidenceo THE STATEMENTS + PHYSICAL EVIDENCE COME IN

Reason: Court does not want police thinking about whether to Miranda

someone, or a danger…neutralize the danger first o Exclusion and Miranda:

If a Miranda violation occurs, what is the effect of that on the evidence and the exclusion rule: Statements are excluded Fruits Are not excluded

o Reason: The modified exclusion rule or less then complete “Fruit of Poisonous Tree

Doctrine” does not come into play here Although the compulsion felt due to a Miranda violation leads to the

‘unreliability’ factor with statements, the physical evidence is still reliable! Mirandless Confession leading to a Mirandized Confession:

o Missouri v. Seibert: Police gaining a confession without Miranda warning, then giving Miranda

warning leading to same confession is admissible if: Not a deliberate/intentional 2-step process

Physical Evidence o Always come in

o Alternatives to Miranda: Purpose:

To avoid inherent stationhouse compulsion of interrogation…but hasn’t really worked..? 1. Get Rid of Miranda, go solely to a Totality of Circumstances 2. Beef it Up:

add ‘silence wont be used against you’o this may alert people that they really don’t need to say anythingo Invocation then comes into play…when is the right invoked?

As Scalia and Public defender said, your natural instinct is to respond to a question and its difficult to suppress this added warning would quell it perhaps more?

Add other rights? 3. Video Taping / Recording:

Supplemento Deters police from Due Process Violations and overreachingo Promotes Reliabilityo Deters Frivilous Defense claims of coerciono Accuracy almost guaranteed

Need to deal with video tape tamperingo Increases Fact finding of judge and juryo Have inference of ‘caution’ to un-videotaped confessions to jury (Massachusets)o To be done correctly, should show both parties evenly so no inference drawn from what’s

unseen 4. Criminal Deposition:

Require an attorney there Deters Police Misconduct Exclude the statement, while admitting the physical fruit

o Compulsion occurs, but statement excluded to fulfill 5th’s text, while allowing all physical fruit which doesn’t ‘testify’

o Ends “cruel trilemma”o Promotes reliability and emphasizes truth finding

Fruit is more reliable anyway Coerced testimony has risk of false confession anyway, so exclude it automatically Ends Poor Performance Rationale Protects 1st amendment and privacy Ends Torture Rationale

o Counter argument: You know this person has confessed, and cannot use the confession, but the

physical evidence is not strong enough to convict…may lead to large issues? 4. Require an Attorney be present

the station house attorney Promotes reliability, ends torture, avoids compulsion This in addition to Miranda would be excellent

o But, Miranda already allows this option—to request one’s attorney In Europe:

o Counsel is required to be thereo Inference drawn if you remain silent

But again, this is part of the inquisitorial system, where there is no cross examination…no incentive to stay silent really

We rely on cross-exam to ‘find the truth’ 5. Police Requirements

Speak and explain rights Not too speedy

6. Scientific Based Changes Should construct a system to further confessions from guilty while minimizing them from

innocento Time in interrogation should be limited

2-4 hours, scientifically seems adequate Most false confessions last 16.3 hours

o False Evidence Use should be ended Studies show that it influences suspect’s expectation and increases false

confessionso Minimization of Punishment Strategy should be ended:

Gives false hope to innocent and guilty That they will be treated leniently

7. Have specific rules for Children Not too fast, allow attorney there

6 th Amendment Limitations on Confessions: o Generally:

The 3rd method the Court has used to regulate confessions, in addition to 5th and 14th amendment due process, 5th amendment privilege against self incrimination with Miranda

2 Key Differences between 6 th amendment and 5 th amendment: Is Crime Specific:

o So the 6th amendment in confessions context only applies to the crime indicted for Effect on Undercover Work:

o Because officers may not ‘deliberately elicit’ from you, focusing on the officers intentions, post indictment undercover work for that crime will be unconstitutional based on Messiah

The Edwards Rule does not apply: While in 5th amendment, once right to counsel invoked police must stop, post-formal charge they

may continue to come back in an effort to get waiver Miranda warning is sufficient to waive your 6th amendment right to counsel No new warning is required

o Messiah v. US: If you are formally charged, arraigned, or indicted the 6th amendment applies

“Police cannot deliberately elicit comments from you, post indictment unless counsel is present Reason:

o Some have argued that this is a constitutionalized rule of ethics, that adverse party may only be contacted during adversarial process through their lawyer

o Judge Higginbottom: Once a formal charge is brought, the adversarial relationship has cemented

Deliberately Elicit:o Purpose to seek information

o Note: While Burbine applies to pre-formal charge, that you don’t have to know that your attorney is trying to

contact you Post-Formal charge, you do have to be toldyour attorney must be present

o Exclusion rule and 6 th amendment violations: The Court has largely followed Miranda

Statements cannot be used in the Case-In-Chiefo Impeachment Exception Can be used to impeach

o Waiver: Brewer v. Williams:

F: Little girl went missing, ∆ an escaped mental patient, was arraigned on an outstanding arrest warrant for her murder. While in car with police, they made some odd religious statements to him, and posed questions about where the body was and he eventually showed them where the body was

R:o 1. Judicial Proceedings and Formal Charge had been commenced:

Massiah applied, and officer deliberately elicited statements from the ∆ his 6th amendment right to counsel was violated

o 2. Waive of the 6 th amendment right to Counsel: “Intentional Relinquishment or abandonment of known right”

presumption is against waiver Here:

∆ did not relinquish or abandon…in fact he had 2 lawyers who told officers not to speak to him

The 6 th Amendment Right to Counsel:

“In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense….” o Note:

6th amendment and Messiah deal with confession and eliciting confessions…that application of the rule applies at post-indictment or other formal charges

This application applies to the trial setting and post-formal charges similarly o At Common Law:

England: Only had a right to counsel for misdemeanor cases (Because Government had attorney) but not

felonieso Court wanted ∆ to speak

Part of Inquisitorial System Idea that innocence would become clear Judge Questions

America: When constitution adopted, 12/13 states rejected England and had full right to counsel Powell v. Alabama: incorporated this right

o Evolution o Powell v. Alabama (1932):

F- ∆’s were 8 black men, in deep south Alabama, charged with rape of 2 white girls on a train. During arrest, and beyond, trial judge appointed the bar as the counsel, hoping that 1 attorney would step forward and represent them. On day of trial, counsel became clear, and jury eventually fixed punishment of death for all.

I- Was Due Process denied, under the 14th amendment, by denying the right to counsel? Maj: Court only considered faulty Counsel

Faulty Counsel: o Because the judge did not want to make bar mad, as he was elected, he appointed them

all This amounted to a denial of effective aid required by the 6th amendment Idea of Counsel: to give someone responsibility, that they appreciate with

individual sense of duty o Critical Time Period

Counsel was set on day of trial. So, from arraignment until trial there was no lawyer investigation, preparing, or questioning witnesses

Vitally Important time period Even though appointed at trial date misses real sense of counsel

o Point of Counsel: To Investigate Case

Between arraignment and trial Acquire exculpatory evidence while police gather incriminating

evidence Cross Examine effectively preserves idea of truth, even though the

oath is intended to Steer Client through the process Motion and preserve appeals rights Voire Diore All of this was not given

Other Possible Issues: o Justice Anderson of State Supreme Court said this was faulty, and jury was tainted

This is what he said should have been considered They knew that everyone was angry about black/white crime Military was present, so emotions were high

o Faulty Trial Process: Too Fast…2 weeks between crime and death sentence Not even enough time for ∆’s to choose their counsel, let alone sentence

Incorporation:o Powell also incorporated the 6th amendment to stateso One of the first cases to even consider incorporationo Idea of incorporating federal constitutional criminal procedure took wind after this case o In this case, counsel was ineffectively appointed…when ∆ unable to employ counsel,

incapable of making his own defense, duty of court to assign counsel—required by due process of 14th amendment

Must be assigned in manner that makes effective Betts v. Brady:

Court specifically held, post-Powell, which incorporated 6th amendment to states in fact-specific scenario, that due process of 14th did not incorporate right to counsel automatically.

Endorsed case-by-case approacho Gideon v. Wainright:

F: ∆ charged in Florida for felony, and asked for counsel—court denied request R:

Betts overruledo The 6th amendment is a fundamental right that should be incorporated

Powell recognized this…even though was limited to its facts Based on the American Scheme of Justice…even if other countries don’t have it

Emphasized from 12/13 states rejecting European approach Cannot have fair and impartial trial if no lawyer appointed

Any person in court, too poor to hire lawyer—State must appoint counsel for indigents o What is indigent:

Barry v. Brower: Indigency is based on nature of accused assets…if not liquid, the present inability to afford

counsel is ‘indigency’ for 6th amendment purposes Most States:

Many states have detailed statutes determining eligibility for appointing counsel Federal Standard is “any person financially unable to obtain adequate representation”

When Does the Right apply? o Generally, the right to counsel applies at trial and at other ‘critical stages’

A Critical Stage is ‘a determination of whether the presence of counsel is necessary to preserve the defendants basic right to a fair trial…cross exam, witnesses, and effective assistance”

o Generally: Formal Charge (Messiah) along with defendants presence will trigger the 6th amendment right to counsel by

creating Critical Stage “Formal Charge” is when adversary proceedings cement

Indictment, charge, arraignment...o Pre-Trial Critical Stages:

Does not apply to: Grand Jury No formal charge has been brought Show Up or Photo Identification pre-formal charge (Kirby, and Ash)

1. Counsel Needed for Post-formal charge line-up US v. Wade

o Because of suggestiveness of lineup, accused cannot reconstruct that unfairness that occurred … counsel there may offer only opportunity to attack witness credibility in courtroom identification

2. Preliminary Hearing: Coleman v. Alabama:

o Is a Critical Stage that Counsel is required for indigent defendanto Reason:

Provides ability to attack by cross-exam weakness in state case Skilled interrogation of witness can create vital impeachment tool Preserve favorable testimony of witness who doesn’t appear at trial

More effectively discover case against client and make possible preparation of defense

In preliminary hearing, makes effective arguments for accused

o Trial: Gideon:

State must appoint counsel for indigent defendants The Right to Counsel In Misdemeanor Cases:

Argersinger v. Hamlin: o F: Petitioner was indigent, charged with misdemeanor. He had no counsel and was

convictedo I: Does the 6th amendment apply to misdemeanors?o R:

Absent Waiver, no person may be imprisoned for any offense, misdemeanor or felony unless 6th amendment right to counsel at trial

The constitutional issue is no less significanto Counsel Needed:

So that accused may know what he is doing, and aware of prospect of jail and treated fairly by prosecution

o The prospect of imprisonment is not trivial to the ∆ The Actual Imprisonment Rule:

Scott v. Illinois: o Whether 6th amendment requires counsel for misdemeanor punishable by fine or prison

that is actually punished with fine?o Argersinger is limited to when actually punished with prison term

Misdemeanor 6th and 14th only require that no indigent criminal defendant be sentenced to prison unless he has counsel and 6th amendment fulfilled

If Just fine No Need for Counsel If punished with prison, must redo with counsel

o Brennan Dissent: Should be whenever prison is authorized Now, judge determines sentence prior…forgoes discretion to impose prison

sentence Either appoint counsel and retain discretion or, be limited to fine

This infringes on seperation of powers Legislature gave this discretion to the Courts…now limited by courts,

which is in effect limiting legislature’s intention Note:

o Miranda gives a suspect an option to counsel…but if it’s a misdemeanor case and is being punished with fine…6th amendment right to counsel ends

o Oddity

Suspended Sentence and Actual Imprisonment Rule: o Alabama v. Shelton:

A suspended sentence is a prison term that is imposed for conviction Once prison term is triggered, ∆ 6th amendment right triggered

Use of Uncounseled Conviction to Enhance later sentence: o Question is, if indigent defendant convicted of misdemeanor, with fine and therefore

without counsel, can the first uncounseled conviction be used to enhance his sentence for second crime?

Nichols v. United States: The use of past conviction does not change penalty imposed on earlier

conviction

Only latest offense is penalized o Post-Trial Critical Stages:

Mempha v. Rhay: Counsel required at sentencing/probation revocation procedure

Appeals: 1 st Appeal: Douglas v. California:

o Indigent defendant has the right to appointed counsel for his first appeal

Does not apply to discretionary appeals, unless it is 1st appeal:o Ross v. Moffitt:

Not needed…he has brief, lower court transcripts, opinion of Court….these supplemented by his pro-se appearance are adequate

No Counsel for Collateral Reviewo Habeas Corpus

Right to Counsel and Experts: o Ake v. Oklahoma:

Held that Indigent defendant was denied due process when he wasn’t given an experto Not Automatic:

Only triggered if necessary for a fair trial, and if it would deprive ∆ of fair opportunity to present his defense

Generally: Ake read very narrowly

Witness and Identification:

When dealing with eye-witness, there are always 2 issues:o 1. Is the out-of-court identification admissible?o 2. Is the In-court identification admissible?

Independent Source: Even if the out-of-court identification is deemed inadmissible, the Court may accept the in-court

identification as an independent source It is not a product of the over-suggestiveness and therefore stems from an independent source

Manson v. Braithewaite: o F: Officers used only 1 photograph to show another officer who witnessed a drug sale. The Officer identified the

mano I: Was this oversuggestive?o R:

A Totality of the Circumstances approach should be used in evaluating Eye-Witness: 1. Reliability is the ‘driving force’

o concern of jury hearing unreliable testimony and poor recollection 2. Avoids the draconian ‘exclusion’ of all evidence by applying the test to the factors

Factors Considered: Opportunity to view the crime; degree of attention paid; accuracy of prior descriptions of criminal;

time between crime and identification; balanced against the effect of suggestive ID Needs to be a fair and substantial liklihood of misidentification

o Policy Readings: 1. Adrenaline in eye-witness accounts actually may worsen one’s memory 2. Juries are relied on to use the eye-witness, and with the terrible memory it taints evidence Science:

1. Use Double Blind Identification 2. Use Sequential Identification

o Issues with implementation: 1. Small departments not willing to comply 2. Reluctance to use because less likely to id!

Screening and Charging:

Power of Prosecutor: o Has immense discretion

With large criminal code, he has choice of what to charge ∆ for and how many separate acts to charge Also, check sentencing guidelines (no longer mandatory) to determine what crime you may go after

o Accountability: Jury as check on prosecutor Attorney General Grand Jury

Arguably a rubber stamp—either because it’s a rubber stamp, or only strong cases brought Political Check Professional Association, such as bar

o How Discretion is Excercised: There are Federal DOJ Guidelines:

Degree of Federal Interest o 1. Priority of that crimeo 2. Nature and seriousness of offenseo 3. Deterrent effect of that prosecution on publico 4. Culpability of suspecto 5. Criminal history o 6. Willingness to Cooperateo 7. Suspects Person characteristicso 8. Sentence and other consequences

Alternatives: o Civil, job loss, professional disciplineo State Prosecution

These are guidelines…not reviewable, but a framework of what to consider o Decision of Whether to Charge:

Unlike private sector, prosecutor must have a ‘personal belief’ that ∆ is guilty Will Evidence, Probable Cause satisfy? Look at factors, above Evaluate Allocation of resources

Every prosecutor creates priority list of crimes…is this a crime he wants to allocate resources, time and money to?

Wait v. United States: Prosecutor is granted presumption

o Courts will not infringe on decision of prosecutor then, unless some invidious, or unjustifiable standard such as race, religion or other arbitrary classification

o Only dispelled by ‘clear and convincing evidence’ Separation of Powers

o Prosecutor is under executive branch…court will not interfere Judicial Supervision would have Costs on System:

o Delays criminal proceeding, and justiceo Chills law enforcement o Reveals enforcement polices…undercutting whole objective

If people actually knew what would be enforced rather then what was illegal…anarchy

Selective Enforcement: US v. Armstrong:

o 1. To Prove, Must show Discriminatory Purpose + Effect that similarly situated individuals of different race were not prosecuted

o 2. To Get Discovery of ‘Selective Enforcement’ Claim: Must show ‘some evidence tending to show existence of above 2 elements’

o Decision of What to Charge for: Batchelder:

Prosecutor has discretion in charging decision Prosecution, if crime violates 2 statues, does not have to choose lesser punished one