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Kroeber Outline, Summer 2009 1 of 13

4th Amendment: Preventing generalized Search & Seizure

Text of 4th Amendment: - Right of the people to be secure in their persons, houses, papers & effects against unreasonable

SEARCHES & SEIZURES, shall not be violated. - and no WARRANTS shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.

Seizable items: people (detention/arrest); physical evidence; content of conversations; LE observations

IS THERE A 4TH Am VIOLATION? RULE: 4th Amendment is violated when a gov’t actor initiates an unreasonable search or seizure. Unreasonable if… 1. GOV’T ACTION 2. REOP Does this Def have standing: Reasonable Expectation of Privacy (REOP)?

i. RULE: To get standing to challenge a search/seizure, Def must show that: 1) Def had subjective expectation of privacy in the place to be searched/ things to be seized; AND 2) Def’s EOP was objectively reasonable: Society recognizes said expectation as reasonable. Can show objective REOP by… 1. Right to exclude others from place searched 2. Continuing access to premises searched + possessory interest in the items seized 3. Legitimately on the premises @ the time searched + possessory interest in the

items seized 4. Valid Bailment: m/b more substantial/permanent than Rawlings

a. Established relationship btwn bailor & bailee b. Course of conduct indicating safeguarding of relevant items c. Agreement by bailee to safeguard relevant items

5. Def personally seized by police → See DETENTION mini-outline below ii. REOP by place:

1. Home/Hotel: RULE: Entry/search of home w/o warrant is presumptively illegal a. Curtillage

i. Proximity to the home ii. Whether area is enclosed w/home iii. Steps taken by resident to protect area from observation by passers by iv. Nature of uses to wh/the area is put (Barn separate from house = no REOP)

b. High Tech search: Occupant has no reasonable expectation that residence will be observed using tech means that are not in widespread use by general public

c. Aerial Surveillance: No REOP at 1000 feet; Yes REOP at 400 feet 2. Business: RULE: REOP in office (incl files & drawers), EXCEPT when public employer is

seeking work product or seeking to investigate workplace violations 3. Vehicle 4. Public: What Def exposes to the public is not subject to 4th Am protection

a. Squeezing soft-sided luggage on bus is covered by 4th Am b/c it falls under ‘effects’

5. Prison: no REOP at all


3. VALID WARRANT?

a. WARRANT PRESENT: PG&E Stops at Noon to Purchase Extra Kegs i. PROBABLE CAUSE:

1. Aguilar/Spinelli Test: Affidavit based on informant’s evidence m/b subjected to 2 prong test: a. BASIS OF KNOWLEDGE: How did informant know what they claim to know? b. RELIABILITY/VERACITY: Factual basis in the affidavit indicating informant’s

reliability is good i. Reliability of informants:

1. LE officers 2. Citizens/witnesses 3. Anonymous informants:

a. Previous accurate tips from same informant b. Predicted facts actually occur

ii. Self-verifying detail (sufficient detail & specificity) 2. Gates Test: RULE: Issuing magistrate must make a practical/common sense

assessment whether there is a fair probability that contraband/evidence of crime will be found in the described place, given the totality of circumstances. a. CORROBORATION can make up for limits to Aguilar/Spin factors:

i. Corroboration must pertain to Def’s criminal activities ii. Degree of suspicion attached to particular acts may be suff’t to find PC, even

if the acts themselves aren’t criminal 3. Grubb: Anticipatory Search Warrant is valid IF:

a. were a triggering condition to occur, there is a “fair probability” that contraband/evidence of crime will be found in a particular place; AND

b. There is PC to believe that the triggering condition will occur ii. GOOD FAITH EXCEPTION to PC: No PC needed in warrant IF… Executing officer’s reliance

on warrant was objectively reasonable. 1. Objectively Reasonable IF:

a. Search/seizure was pursuant to warrant b. Issued by neutral/detached magistrate

2. NOT Objectively reasonable IF a well-trained officer would’ve known the search was illegal despite the judge’s authorization

iii. EXCEPTIONS TO GOOD FAITH EXCEPTIONS: Exclusionary Rule balancing test has found that suppression of evidence is an appropriate remedy IF… 1. Facially deficient warrant 2. Info in affidavit was false & Affiant knew/should have known

a. Remedy: excise the false info & reweigh PC 3. Judge not neutral & detached /abandoned judicial role 4. PC in affidavit is so lacking in PC that no reasonable LE officer would’ve believed

there was PC iv. STALE INFO: not w/in 30-45 days of warrant being issued v. NEUTRAL & DETACHED magistrate:

1. Reasoning: Indep judiciary as a check on the discretion of the exec branch; 2. Violated by: judge acting in an exec role (//to Lo-Ji)


vi. PARTICULARITY: Face of the warrant itself must describe the particular places to be

searched / items to be seized 1. Otherwise, it’s a general search in direct contravention of the text of the 4th Am

vii. EXECUTION: 1. Time of Day: 7am – 10pm (or 24hrs w/judge’s discretion) 2. Time from issuance: w/in 10 days

viii. KNOCK NOTICE: Police must 1. Knock 2. Announce warrant 3. Wait reasonable time (30-45 seconds / 10-15 seconds) 4. 3 sources of the rule: English CL; USSC rulings: Calif/state statutes 5. Exception: Knock notice NOT REQUIRED IF LE has a reasonable suspicion that

exigencies will occur 4. VALID W/O WARRANT?

a. NO WARRANT: Cousin, Please Exit Out the Side Vent Above the Inventing Bench i. CONSENT ii. PLAIN VIEW: evidence seized from w/in plain view of LE while LE is in a place LE is

authorized to be is admissible iii. EXIGENCIES: Prevent destruction of evidence; protect occupants iv. OFFICER SAFETY:

1. Sweep of the premises to ensure safety (Mui) 2. Stop & Frisk (Terry): LE must have specific & articulable facts indicating that Def is

presently armed & dangerous v. SEARCH INCIDENT TO ARREST: search of the people/area w/in the immediate control of

the arrestee 1. General: wingspan (Chimel) 2. Vehicle: passenger compartment including glove box (but NOT trunk), even after

occupants exited (Belton/Thornton) vi. VEHICLE EXCEPTION: PC + Mobility = no warrant required

1. If warrant were required, Def could simply leave the JX each time warrant pending & never be subject to search at all a. Often combined w/plain view

vii. ADMINISTRATIVE SEARCH: Not search for a criminal purpose, ∴ no warrant needed viii. INVENTORY SEARCH: Requires departmental policy (otherwise impermissible

generalized search). 1. Not a search for criminal purpose (purpose is to protect LE agency from claims of

loss by cataloguing property), ∴ no warrant needed ix. BORDER SEARCH: No REOP, ∴ no 4th Am issue

…


DETENTION (4th Am Seizure of person)

1) IS THERE A DETENTION? Person is seized by the police IF…

a. Mendenhall: a reasonable person would not feel free to leave/terminate the encounter

b. Hodari: i. LE physically contacted the Def; OR

ii. Def submitted to he LE’s authority 1. E.g., acquiesced to a request, etc.

2) IS THE DETENTION SUPPORTED BY ‘REASONABLE SUSPICION’? a. RULE: To initiate a detention, LE must have a reasonable suspicion that the suspect is

involved in criminal activity 3) HAS THE DETENTION BECOME OVERLY PROLONGED?

a. Although valid at inception, detention may become overly prolonged …


STATEMENTS/CONFESSIONS:

DP (5th/14th); Rt to Counsel (6th/14th); Miranda (5th); Fruit Of the Poisonous Tree (4th Am S&S)

MW = Miranda warning

Fruit of PT via Violation of 4th Am S&S:

RULE: If statement is a direct result of an un-attenuated violation of 4th Am, statement is

inadmissible (Wong Sun, etc.)

EXCEPTION: NY v. Harris: statement given outside home after warrantless entry into home to make

routine felony arrest is admissible (where arrest based on PC & Def got MW & waived MW).

Reasoning: b/c of either independent source or attenuation

6th Am Right to Counsel:

Massaiah RULE: Def’s Right to counsel attaches at the point that adversarial judicial proceedings

begin & LE cannot interrogate Def w/o a knowing, intelligent & voluntary waiver of right to

counsel. An attempt to elicit incriminating info in the absence of counsel is a violation of 6th

Am right to counsel.

1) 6TH AM RIGHTS ARE OFFENSE-SPECIFIC: Has the Def been charged w/THIS CRIME?

a. McNeil v. Wisconsin: Arraigned on crime 1 & appointed counsel; Mirandized &

waives & questioned about uncharged crime 2. No 6th Am right re crime 2.

2) Is it DELIBERATE ELICITATION / did LE’s actions create a SITUATION LIKELY TO INDUCE

incriminating statements?

a. Passive Secret Agent: RULE: Passive listening devices (including passive listening

people) are allowed & any statements overheard are admissible

b. Active Secret Agent: incriminating statements that are the product of a proactive

conversation are inadmissible

3) Is elicitation by LE AGENT? as opposed to someone else not acting as LE agent

4) Was there a VALID WAIVER? Prosecution must prove the intentional relinquishment of a

known right/privilege. Knowing, intelligent & voluntary waiver

a. MW & waiver is sufficient to demonstrate waiver of 6th Am rights

i. Police ploy suppressing info that Def had been charged + telling Def that he

wasn’t a suspect = prevention of knowing waiver (People v. Engert)

REMEDY: Statements made in violation of 6th Am are suppressed for the case in chief

- IMPEACH? YES: Statements in violation of 6th Am at trial: can be used to impeach

ON APPEAL: Harmless Error: Prosecution must be able to show, beyond reasonable doubt, that the

erroneously admitted evidence was harmless, otherwise conviction reversed.


Miranda: When Miranda Warning(MW) required

RULE: Miranda rule applies once Def is taken into custody, and any statement taken w/o a

knowing, intelligent & voluntary waiver cannot be used in the prosecution’s case in chief,

unless one of the exceptions applies.

PURPOSE: MWs help to mitigate the coercion inherent in LE interrogation scenarios, to help

prevent self-incrimination in violation of 5th Am prohibition against it.

1) Is the Def in CUSTODY?

a. Formal arrest or restraint on freedom of movement of the degree associated w/formal

arrest (Yarborogh v. Alvarado)

b. Objective test: How would a reasonable person in the suspect’s shoes view the situation

2) Is it INTERROGATION? Objective test

a. Express questioning or its functional equivalent.

i. *LE actions reasonably likely to elicit an incriminating response

3) Was the MW given?

a. Proper format: essential content of the warnings (right to silence, right to attny, etc.)

as described in Duckworth v. Egan

4) Was there a valid WAIVER of M rights? Knowing, intelligent, voluntary

a. Burden of proof: Show by preponderance of evidence that there was a valid waiver.

b. LE verification: Do you understand each of these rights? Having these rights in mind,

do you wish to talk to me now?

c. Cts split: Is silence sufficient?

i. Silence = an implied waiver

ii. Silence not sufficient: Affirmative act required to show waiver

5) Were M rights asserted?

a. Right to silence: Questioning again after Def first asserted M rights & LE gave 2nd

MW may be ADMISSIBLE IF SUFFICIENTLY ATTENUATED to appear to be a separate

instance from the first interrogation, rather than a continuation of the first.

i. Factors to consider:

1. Passage of time between 1st questioning attempt (at wh/M rights

were asserted) & 2nd questioning

2. 2nd questioning about a different crime (vs. same crime)

3. 2nd questioning in different location

4. 2nd questioning by different officer/LE agency

b. Right to counsel: Edwards: Def is not subject to further interrogation until counsel

has been made available to him, UNLESS the Def himself initiates further

communication w/LE.

i. Questioning again on same crime w/o attny, after right to counsel asserted,

is NOT allowed (even if 2nd MW given & waived).


ii. Questioning again on different crime + by different agency + 2nd MW +

waiver = NOT allowed. (AZ v. Roberson, following Edwards)

iii. Request for counsel at arraignment of first crime + Questioning again on

different un-charged crime = YES allowed. b/c Edwards only applies when Def

has expressed desire for a particular type of lawyerly assistance – aid during

custodial interrogation – vs. aid at time of charge (McNeil v. Wisconsin)

EXCEPTIONS: MW not needed if…

1) UNDERCOVER AGENT: MW not needed b/c if Def doesn’t know he’s being interrogated by

LE officer, then the evil which the MW exist to mitigate isn’t present & MW wouldn’t serve

its purpose.

2) PUBLIC SAFETY: Where reasonable officer would believe public safety is in danger

a. E.g., questioning to locate gun immediately after shooting)

3) MERELY INVESTIGATORY STAGE: Qs during detention (before point of custody) don’t

require MW

a. E.g.: traffic stop

4) ROUTINE BOOKING QUESTIONS: Qs reasonably related to LE’s administrative concerns don’t

require MW.

a. E.g.: What is your home address, what is your height/weight, etc.

b. Exception: Qs that require a “testimonial response” are subject to MW requirement

REMEDY: Exclusion of the statement from the case in chief. Other evidence (physical & verbal)

discovered pursuant to statement obtained in violation of M rights is still admissible (Patane).

o Note: Physical & verbal evidence excluded if: restatement of confession after

purposeful LE misconduct (Seibert – you can’t question w/o MW to obtain a

confession, then re-question w/MW to get the same confession & claim that you’re

honoring the suspect’s constitutional rights)

IMPEACHMENT: Statements taken in violation of Miranda may be used to impeach.

ON APPEAL: Subject to harmless error test

…


5th Am / 14th Am DP VOLUNTARINESS

RULE: Use of coerced/involuntary statements is barred in ALL criminal proceedings (including to

impeach). Confession obtained by threats/ coercion/ serious deception/ promises of

leniency offend fundamental notions of fairness.

BURDEN OF PROOF: Prosecution must prove that the statement was voluntary by a preponderance

of the evidence.

PURPOSES:

1) Preservation of individual freedom of choice

2) Interest in reliable, trustworthy evidence

3) Deter coercive police methods: prevent fundamental unfairness in use of evidence

SUBJECTIVE TEST: Given the Def’s characteristics, WAS THE DEF’S WILL OVERBORNE?

Factors:

1) Age

2) intelligence level

3) experience w/legal system

4) Intoxication (not dispositive, but relevant)

5) Mental illness

6) Sleep deprivation

7) Language barriers

8) Threats against Def/Def’s family

9) Manipulating religious beliefs

10) Length of interrogation

11) Promises of leniency: RULE: To exclude the statement, LE’s Promise m/b a SUFFICIENT

INDUCEMENT TO BE THE MOTIVATING CAUSE OF THE CONFESSION (e.g., quid pro quo).

Merely promising something doesn’t render statement involuntary.

12) ***MW alone not sufficient to show voluntariness

REMEDY: Involuntary statement can’t be used at trial at all (not even to impeach).

- ***Even if statement found to be voluntary, still can challenge the evidentiary reliability of

the statement w/the jury

ON APPEAL: Harmless error test: Harmless beyond a reasonable doubt


Witness IDs: Photo arrays; line-ups; courtroom IDs

6th Am Right to Counsel at ‘critical’ stages of adversarial proceedings

6th Am rt to counsel Attaches after charged. YES right to counsel:

1) Physical lineup after charge: b/c fungible (can’t be reproduced/reenacted later at trial) & b/c of risk of LE persuasion of witnesses… Def must rely on counsel being present to know the propriety/process for challenging at trial

NO right to counsel: 1) Physical lineup prior to charge: b/c no adversarial proceedings yet & ∴ Def can’t be forced

to participate, ∴ Def gives voluntary consent to expose self 2) Photo array: b/c not fungible (can be re-enacted at trial); & b/c Def not present, ∴ no need

for assistance from counsel REMEDY: Exclude the ID testimony at trial

5th Am / 14th Am DP

RULE: ID evidence m/b excluded IF the ID procedures were so unnecessarily suggestive as to give rise to a high probability of irreversible mis-ID & thereby prevent a fair trial.

1) State action? 2) Procedural impropriety?

a. Dissimilar comparisons in lineup/photo array b. Exposure to Def in courthouse or other setting indicating Def is a criminal

e.g.: Stovall v. Denno: showing Def in handcuffs & alone to witness in hospital bed not improper, since witness was the only person who could exonerate the suspect; she could not go to the police station for the usual lineup, and there was no way of knowing how long she would live

REMEDY: Exclude the ID testimony at trial EXCEPTION to REMEDY: INDEPENDENT ORIGIN

At hearing for defense motion to exclude… EXCEPTION: Evidence is IN if prosecution can prove that witness testimony will be based on his/her

recollections of observance of the crime itself, rather than on the improper ID procedure ON APPEAL: Harmless Error: Error is harmless if there is substantial other credible evidence in the

record to support conviction


6th Amendment: Right to assistance of Counsel AT TRIAL STAGE

RULE: The right to counsel attaches when adversarial judicial proceedings have begun against the

Def (e.g., at time of charge). After that point LE cannot interrogate Def in the absence of either an attorney OR a knowing, intelligent, & voluntary waiver of the right to counsel.

Purpose of the RULE: To safeguard the charged defendant’s decision to deal with the state only

through the medium of counsel – to assure the assistance of counsel for his defense as required by the text of the 6th Am.

Violated via… 1) DEPRIVATION OF COUNSEL:

a. Retained counsel: RULE: Denial of assistance of retained counsel on any issue in any criminal trial is a per se violation of DP fundamental fairness.

b. Appointed counsel: i. AT TRIAL: RULE: Ct is constitutionally required to appoint counsel for indigent

Defs when 1. Charged w/any felony; OR 2. In any criminal case in wh/actual jail time will be imposed

a. Suspended sentences b. Enhanced sentence for recidivism in counseled felony conviction

subsequent to prior validly unconcealed misdemeanor conviction (Nichols)

3. ***Calif RULE: free counsel appointed for all felonies & misdemeanors ii. ON APPEAL:

1. In states w/Discretionary appeal: RULE: No right to appointed counsel for appeals that are a matter of judge’s discretion

a. Ross: b/c no constitutional right to appeal in the first place. 2. In states w/First appeal as a matter of right: RULE: Denial of counsel to

indigent Defs based on judge’s discretion for appeal as a matter of right is a violation of DP, based on EqP analysis

a. Douglas v. Calif: type of justice received by shouldn’t depend on size of wallet.

c. Capital Cases: In capital cases, appointment of counsel is a DP requirement from the point of arraignment through trial (b/c arraignment is a ‘critical stage’)

d. REMEDY: Automatic reversal 2) WRONGFUL DENIAL OF REQUEST TO SELF-REPRESENT:

a. RULE: Def has right to act as own attorney, but not an absolute right i. Reasoning: right to decide for self whether assistance of counsel is beneficial to

own defense; right to be free from unwanted gov’t-required ‘assistance’ b. Right to self-rep is dependent upon:

i. Timely request


ii. Mentally competent (active DSM-diagnosed mental illness excludes right to self-

rep). Presence of mental illness requires thorough inquiry by ct regarding whether Def is competent

iii. Refraining from major disruption/obstruction of court processes c. STANDBY COUNSEL:

i. Appointment at discretion of judge: No violation if purpose of appointment is to relieve judge of need to explain & enforce basic rules of protocol or assist Def in overcoming routine obstacles to Def’s clearly stated goals

ii. RULE: Def’s right to self-rep is only preserved IF Def preserves ‘actual control’ over the case. Participation by standby counsel w/o Def’s consent should not be allowed to destroy the jury’s perception that the Def is representing himself.

iii. Standards for Standby counsel behavior: 1. In presence of jury:

a. Once Def invites/agrees to substantial participation by standby counsel, subsequent participation by counsel must be presumed to be w/Def’s acquiescence, until Def expressly & unambiguously renews his request that standby counsel be silent.

2. Outside presence of jury: a. Def addresses court on own behalf b. Disagreements btwn Def & standby counsel resolved in favor of

Def whenever the matter is one that would normally be left to discretion of counsel

d. HYBRID COUNSEL: No constitutional right for Def to act as co-counsel e. REMEDY: Automatic reversal

3) INEFFECTIVE ASSISTANCE OF COUNSEL: a. RULE: To show that 6th Am right ot counsel was violated, Def must show that both…

i. Performance of trial counsel fell below the level of reasonable effective assistance (// to professionals standards)

1. Counsel’s duties to Def: a. Avoid conflicts of interest b. Confidentiality c. Advocate Def’s cause:

i. Consult w/Def ii. Keep Def informed

iii. Modicum of skill/knowledge so as to render the trial a reliable adversarial testing process

2. Failure of this prong may trigger a DP challenge, based on question of fairness of trial

ii. Prejudice: But for said poor performance, there is a reasonable probability that the result would’ve been more favorable to Def

1. Charge; verdict; sentencing iii. Standard of Review: Judge s/b highly deferential to counsel’s discretion


Eq Protection/ DP at Trial: $$$ Right to free “basic tools” of adequate defense or appeal

Ake v. Oklahoma: Basic tool = a resource w/o which the defense fails RULE: Indigent Defs must be provided the “basic tools” of an adequate defense or appeal, at both

the guilt phase & penalty phase. Is it a basic tool? Balance…

Interests of the Def & State in an accurate hearing; vs. State’s fiscal interest

RULE: Where the potential level of enhancement of accuracy of jury’s determination is “dramatic” & where interest of state &Def in an accurate proceeding is “substantial”, the state’s fiscal interest must yield.

…


Exclusionary Rule / Fruit of the Poisonous Tree:

Judicially created remedy designed to safeguard Constitutional DP rights via deterrent effect, rather than a personal right of the aggrieved party.

RULE: Whether the evidence obtained in violation of rights is admitted is based on balancing… Need to deter THIS LE agency from misconduct (flagrancy, etc.); vs. Cost to society of the loss to the trier of fact of the relevant evidence

Applies to:

4th Am violation 5th / 14th Am DP violation 6th Am right to counsel violation

Does NOT apply to: 5th Am / Miranda violation (remedy for Miranda violation = exclusion of the statements, not of physical evidence derived from the statements)

Applies to:

1) Civil forfeiture hearings generally (e.g., liens) Does NOT apply to:

1) Civil forfeiture hearings of an agency other than the one who did the improper seizure (b/c the exclusion would punish/deter the wrong LE agency)

2) Probation & Parole violation hearings 3) Physical evidence derived from Miranda violations 4) Deportation hearings 5) Grand jury proceedings 6) ***Evidence obtained via LE’s good faith reliance on judicial branch (clerk) to seize w/o

warrant, b/c would have no deterrent effect on the gov’t actor who made the mistake (judicial clerk) [AZ v. Evans]

Per Se result of balancing test: RULE: Evidence obtained as a direct result of illegal conduct by gov’t actors is inadmissible in a

criminal trial against the victim of the misconduct (b/c otherwise violation of DP) EXCEPTION: Evidence NOT EXCLUDED IF it has been obtained by a means suff’tly distinguishable to

be purged of the primary taint 1) Inevitable Discovery: evidence would’ve been discovered anyway, by legal means 2) Attenuated taint? Factors:

a. Passage of time: btwn violation & obtaining the evidence b. Length of causal chain: more intervening factors, more attenuation c. Independent act of free will, especially by the Def (Ceccolini) d. Flagrancy of violation: less flagrancy more likely to be more attenuation e. Nature of evidence: statement = more likely to be attenuated; physical evidence =

less likely to be attenuated f. Miranda warnings: not dispositive, but more likely to find attenuation

3) Independent Source: evidence obtained/available another way a. NY v. Harris: statement given outside home after warrantless entry into home to

make routine felony arrest is admissible (where arrest based on PC & Def got MW & waived). b/c of either independent source or attenuation

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