Criminal Procedure Textbook

8/9/2019 Criminal Procedure Textbook

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CRIMINAL PROCEDURE


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LexisNexis Law School Publishing

Advisory Board

William AraizaProfessor of Law

Brooklyn Law School

Ruth ColkerDistinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law

Ohio State University Moritz College of Law

Olympia DuhartAssociate Professor of Law

Nova Southeastern University Shepard Broad Law School

Samuel EstreicherDwight D. Opperman Professor of Law

Director, Center for Labor and Employment Law

NYU School of Law

David GamageAssistant Professor of Law

UC Berkeley School of Law

Joan HeminwayCollege of Law Distinguished Professor of Law

University of Tennessee College of Law

Edward ImwinkelriedEdward L. Barrett, Jr. Professor of Law

UC Davis School of Law

Paul Marcus

Haynes Professor of LawWilliam and Mary Law School

Melissa WereshDirector of Legal Writing and Professor of LawDrake University Law School


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CRIMINAL PROCEDURE

SEVENTH EDITION

2012 Supplement

Joseph G. CookWilliford Gragg Professor of Law

University of Tennessee

Paul Marcus

Haynes Professor of LawWilliam and Mary Law School

Melanie D. WilsonProfessor of Law

University of Kansas


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TABLE OF CONTENTS

Chapter 2: THE FOURTH AMENDMENT AND THE DEPRIVATION OF

LIBERTY ................................................................................................................................... 6

Chapter 3: THE FOURTH AMENDMENT AND THE SEIZURE

OF EVIDENCE ....................................................................................................................... 11

Chapter 4: THE RIGHT TO COUNSEL ............................................................................. 27

Chapter 5: CONFESSIONS AND OTHER INCRIMINATING STATEMENTS .......... 32

Chapter 6: VINDICATING CONSTITUTIONAL VIOLATIONS ................................... 44

Chapter 7: PRINCIPLES OF FAIR TRIAL ...................................................................... 50


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Chapter 2

THE FOURTH AMENDMENT AND THE DEPRIVATION OF LIBERTY

2.01 THE SEIZURE REQUIREMENTPage 20: [Add to Note 3:]

But seeR.H. v. State, 916 N.E.2d 260(Ind. App. 2009). The use of pepper spray has been held

to result in a detention per se, irrespective of the suspects reaction. State v. Garcia, 217 P.3d1032(N.M. 2009).

2.02 THE SLIDING SCALE OF SUSPICION

[B] The Pervasive Roadblock

Page 34: [Add to Note 2:]

And see State v. Anaya, 217 P.3d 586, 589(N.M. 2009) (Evading a marked DWI checkpoint is

a specific and articulable fact that is sufficient to predicate reasonable suspicion for aninvestigatory stop.).

[C] A Modicum of Suspicion

Page 40: [Add following Note 2:]

(3) In Kramer v. State, 15 So. 3d 790, 792 (Fla. Dist. Ct. App. 5th Dist. 2009), the court

held that the suspects mere act of actively chewing, while walking late at night in a high-

crime area, did not give [the officer] a reasonable suspicion to believe that Kramer was engagedin criminal activity.).

[D] Reasonable Suspicion

Page 70: [Add to Notes:]

And see United States v. Hampton,585 F.3d 1033, 1038(7th Cir. 2009) (Unlike J.L., in which a

single anonymous caller reported only possession of a gun, Smith and other callers reportedmultiple gun shots fired in broad daylight and a gunman on the loose.).

[G] The Duration of the Detention

Page 86: [Add following Notes and Questions:]

ARIZONA v. UNITED STATES

United States Supreme Court

132 S. Ct. ___ (2012)

[The Court, in a 5-3 decision, held that federal law had preempted in large part a statelaw, the purpose of which was to discourage and deter the unlawful entry and presence of aliens
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and economic activity by persons unlawfully present in the United States. The following

portion of the opinion addressed the only portion of the law not deemed to be preempted.]

JUSTICE KENNEDY delivered the opinion of the Court.

. . .

IV

D

Section 2(B)

Section 2(B) of S.B. 1070 requires state officers to make a reasonable attempt . . . to

determine the immigration status of any person they stop, detain, or arrest on some otherlegitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully

present in the United States. . . . The law also provides that [a]ny person who is arrested shall

have the persons immigration status determined before the person is released. . . . The acceptedway to perform these status checks is to contact ICE [Immigration and Customs Enforcement],which maintains a database of immigration records.

Three limits are built into the state provision. First, a detainee is presumed not to be an

alien unlawfully present in the United States if he or she provides a valid Arizona drivers licenseor similar identification. Second, officers may not consider race, color or national origin . . .

except to the extent permitted by the United States [and] Arizona Constitution[s]. . . . Third, the

provisions must be implemented in a manner consistent with federal law regulating

immigration, protecting the civil rights of all persons and respecting the privileges and

immunities of United States citizens. . . .

The United States and its amici contend that, even with these limits, the Statesverification requirements pose an obligation to the framework Congress put in place. The first

concern is the mandatory nature of the status checks. The second is the possibility of prolonged

detention while the checks are being performed.

1

. . . It is true that 2(B) does not allow state officers to consider federal enforcement

priorities in whether to consult ICE about someone they have detained. . . . In other words, the

officers must make an inquiry even in cases where it seems unlikely that the Attorney Generalwould have the alien removed. This might be the case, for example, when the alien is an elderly

veteran with significant and longstanding ties to the community. . . .


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Congress has done nothing to suggest it is inappropriate to communicate with ICE in

these situations, however. Indeed, it has encouraged the sharing of information about possibleimmigration violations. . . . A federal statute regulating the public benefits provided to qualified

aliens in fact instructs that no State or local government entity may be prohibited, or in any way

restricted, from sending to or receiving from [ICE] information regarding the immigration status,

lawful or unlawful, of an alien in the United States. . . . The federal scheme thus leaves roomfor a policy requiring state officials to contact ICE as a routine matter. . . .

2

Some who support the challenge to 2(B) argue that, in practice, state officers will be

required to delay the release of some detainees for no reason other than to verify theirimmigration status. . . . Detaining individuals solely to verify their immigration status would

raise constitutional concerns. See, . . .Illinois v. Caballes, 543 U.S. 405, 407 (2005) (A seizure

that is justified solely by the interest in issuing a warning ticket to the driver can becomeunlawful if it is prolonged beyond the time reasonably required to complete that mission). And

it would disrupt the federal framework to put state officers in the position of holding aliens in

custody for possible unlawful presence without federal direction and supervision. Cf. Part IVC,supra (concluding that Arizona may not authorize warrantless arrests on the basis of

removability). The program put in place by Congress does not allow state or local officers to

adopt this enforcement mechanism.

But 2(B) could be read to avoid these concerns. To take one example, a person mightbe stopped for jaywalking in Tucson and be unable to produce identification. The first sentence

of 2(B) instructs officers to make a reasonable attempt to verify his immigration status with

ICE if these is reasonable suspicion that his presence in the United States is unlawful. The state

courts may conclude that, unless the person continues to be suspected of some crime for whichhe may be detained by state officers, it would not be reasonable to prolong the stop for the

immigration inquiry. . . .

To take another example, a person might be held pending release on a charge of driving

under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the

jaywalker) would appear to be subject to the categorical requirement in the second sentence of2(B) that [a]ny person who is arrested shall have the persons immigration status determined

before [he] is released. State courts may read this as an instruction to initiate a status check

every time someone is arrested, or in some subset of those cases, rather than as a command to

hold the person until the check is complete no matter the circumstances. Even if the law is readas an instruction to complete a check while the person is in custody, moreover, it is not clear at

this stage and on this record that the verification process would result in prolonged detention.

However the law is interpreted, if 2(B) only requires state officers to conduct a statuscheck during the course of an authorized, lawful detention or after a detainee has been released,


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the provision likely would survive preemptionat least absent some showing that it has other

consequences that are adverse to federal law and its objectives. There is no need in this case toaddress whether reasonable suspicion of illegal entry or another immigration crime would be a

legitimate basis for prolonging a detention, or whether this too would be preempted by federal

law. . . .

The nature and timing of this case counsel caution in evaluating the validity of 2(B).The Federal Government has brought suit against a sovereign State to challenge the provision

even before the law has gone into effect. There is a basic uncertainty about what the law means

and how it will be enforced. At this stage, without the benefit of a definitive interpretation fromthe state courts, it would be inappropriate to assume 2(B) will be construed in a way that creates

a conflict with federal law. . . . This opinion does not foreclose other preemption and

constitutional challenges to the law as interpreted and applied after it goes into effect.

JUSTICE SCALIA, concurring in part and dissenting in part.

. . . The Government has conceded that even before Section 2 was enacted, state andlocal officers had state-law authority to inquire of DHS [the Department of Homeland Security]

about a suspects unlawful status and otherwise cooperate with federal immigration officers. . . .

The concession, in my view, obviates the need for further inquiry.

. . . Of course, any investigatory detention, including one under 2(B), may become an

unreasonable . . . seizur[e], U.S. Const.,, Amdt. IV, if it lasts too long. SeeIllinois v. Caballes

. . .. But that has nothing to do with this case, in which the Government claims that 2(B) is pre-

empted by federal immigration law, not that anyones Fourth Amendment rights have beenviolated. And I know of no reason why a protracted detention that does not violate the FourthAmendment would contradict or conflict with any federal immigration law.

JUSTICE ALITO, concurring in part and dissenting in part.

. . . The United States does not deny that officers may, at their own discretion, inquire

about the immigration status of persons whom they lawfully detain. Instead, the United Statesargues that 2(B) is pre-empted because it impedes federal-state cooperation by mandatingthat

officers verify the immigration status of every detained person if there is reason to believe thatthe person is unlawfully present in the country. The United States claims that 2(B)s mandate

runs contrary to federal law in that it precludes officers from taking [the Federal Governments]priorities and discretion into account. . . .


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The underlying premise of the United States argument seems to be that state and local

officers, when left to their own devices, generally take federal enforcement priorities intoaccount. But there is no reason to think that this premise is true. And even if it were, it would

not follow that 2(B)s blanket mandate is at odds with federal law. Nothing in the relevant

federal statutes requiresstate and local officers to consider the Federal Governments priorities

before requesting verification of a persons immigration status. . . .

The United States attack on 2(B) is quite remarkable. The United States suggests that a

state law may be preempted, not because it conflicts with a federal statute or regulation, but

because it is inconsistent with a federal agencys current enforcement priorities. Those priorities,however, are not law. They are nothing more than agency policy. I am aware of no decision of

this Court recognizing that mere policy can have pre-emptive force. . . . If 2(B) were pre-

empted at the present time because it is out of sync with the Federal Governments current

priorities, would it be unpre-empted at some time in the future if the agencys priorities changed?

. . .

If properly implemented, 2(B) should not lead to federal constitutional violations, but

there is no denying that enforcement of 2(B) will multiply the occasions on which sensitive

Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart ofmost objections to 2(B). Close and difficult questions will inevitably arise as to whether an

officer had reasonable suspicion to believe that a person who is stopped for some other reason

entered the country illegally, and there is a risk that citizens, lawful permanent residents, and

others who are lawfully present in the country will be detained. To mitigate this risk, Arizonacould issue guidance to officers detailing the circumstances that typically give rise to reasonable

suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United

States champions, the Federal Government could share its own guidelines. Arizona could alsoprovide officers with a nonexclusive list containing forms of identification sufficient under 2(B)

to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States asproof of legal status, the problem of roadside detentions will be greatly mitigated.


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Chapter 3

THE FOURTH AMENDMENT AND THE SEIZURE OF EVIDENCE

3.01 OBTAINING SEARCH WARRANTS

[D] Allegations of Probable Cause

Page 151: [Add to Notes:]

(3) For a case in which the court found Ybarra, rather than Pringle, dispositive, see State

v. Johnson, 186 Ohio App. 3d 648, 929 N.E.2d 1094, 1098, 1099 (2010).

[E] Special Considerations

[9] Public School Searches

Page 255: [Add as new principal case]

SAFFORD UNIFIED SCHOOL DISTRICT # 1 v. REDDINGUnited States Supreme Court

129 S. Ct. 2633(2009)

Justice SOUTER delivered the opinion of the Court.

The issue here is whether a 13-year-old students Fourth Amendment right was violatedwhen she was subjected to a search of her bra and underpants by school officials acting on

reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to

school. Because there were no reasons to suspect the drugs presented a danger or were concealed

in her underwear, we hold that the search did violate the Constitution, but because there is reasonto question the clarity with which the right was established, the official who ordered the

unconstitutional search is entitled to qualified immunity from liability.

I

The event immediately prior to the search in question began in 13 year-old SavanaReddings math class at Safford Middle School one October day in 2003. The assistant principal

of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he

showed her a day planner, unzipped and open flat on his desk, in which there were several

knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the plannerwas hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines.

Savana stated that none of the items in the planner belonged to her.Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and

one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but bannedunder school rules without advance permission. He asked Savana if she knew anything about the

pills. Savana answered that she did not. Wilson then told Savana that he had received a report

that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson
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search her belongings. Helen Romero, an administrative assistant, came into the office, and

together with Wilson they searched Savanas backpack, finding nothing.

At that point, Wilson instructed Romero to take Savana to the school nurses office tosearch her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove

her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets),

which she was then asked to remove. Finally, Savana was told to pull her bra out and to the sideand shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic

area to some degree. No pills were found.

Savanas mother filed suit against Safford Unified School District # 1, Wilson, Romero,

and Schwallier for conducting a strip search in violation of Savanas Fourth Amendment rights.The individuals, (hereinafter petitioners) moved for summary judgment, raising a defense of

qualified immunity. The District Court for the District of Arizona granted the motion on ground

that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. . . .

A closely divided Circuit sitting en banc, however, reversed. . . . [T]he Ninth Circuit heldthat the strip search was unjustified under the Fourth Amendment test for searches of children by

school officials set out in New Jersey v. T.L.O. . . .

II

. . . In T.LO., we recognized that the school setting requires some modification of the

level of suspicion of illicit activity needed to justify a search, . . .and held that for searches byschool officials a careful balancing of governmental and private interests suggests that the

public interest is best served by a Fourth Amendment standard of reasonableness that stops short

of probable cause,. . . We have thus applied a standard of reasonable suspicion to determine thelegality of a school administrators search of a student, . . . and have held that a school search

will be permissible in its scope when the measures adopted are reasonably related to the

objectives of the search and not excessively intrusive in light of the age and sex of the student

and the nature of the infraction. . . .Perhaps the best that can be said generally about the required knowledge component of

probable cause for a law enforcement officers evidence search is that it raises a fairprobability, . . . or a substantial chance, . . . of discovering evidence of criminal activity. The

lesser standard for school searches could as readily be described as a moderate chance of finding

evidence of wrongdoing.

III

A

In this case, the schools policies strictly prohibit the nonmedical use, possession, or saleof any drug on school grounds, including [a]ny prescription or over-the-counter drug, except

those for which permission to use in school has been granted pursuant to Board policy. . . .1 A

1When the object of a school search is the enforcement of a school rule, a valid search assumes,

of course, the rules legitimacy. But the legitimacy of the rule usually goes without saying as itdoes here. The Court said plainly inNew Jersey v. T.L.O. . . ., that standards of conduct for

schools are for school administrators to determine without second-guessing by courts lacking the


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week before Savana was searched, another student, Jordan Romero (no relation of the schools

administrative assistant), told the principal and Assistant Principal Wilson that certain studentswere bringing drugs and weapons on campus, and that he had been sick after taking some pills

that he got from a classmate. . . . On the morning of October 8, the same boy handed Wilson a

white pill that he said Marissa Glines had given him. He told Wilson that students were planning

to take the pills at lunch.Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400

mg, available only be prescription. Wilson then called Marissa out of class. Outside the

classroom, Marissas teacher handed Wilson the day planner, found within Marissas reach,

containing various contraband items. Wilson escorted Marissa back to his office.

In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and

open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson

asked where the blue pill came from, and Marissa answered, I guess it slipped in when she

gave me the IBU 400s. . . . When Wilson asked whom she meant, Marissa replied SavanaRedding. . . . Wilson then inquired about the day planner and its contents; Marissa denied

knowing anything about them. Wilson did not ask Marissa any follow up questions to determine

whether there was any likelihood that Savana presently had pills: neither asking when Marissareceived the pills from Savana nor where Savana might be hiding them.

Schwallier did not immediately recognize the blue pill, but information provided by a

poison control hotline indicated that the pill was a 200-mg dose of an anti-inflammatory drug,

generically called naproxen, available over the counter. At Wilsons direction, Marissa was thensubjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later

on. The search revealed no additional pills.

It was at this juncture that Wilson called Savana into his office and showed her the day

planner. Their conversation established that Savana and Marissa were on friendly terms: whileshe denied knowledge of the contraband, Savana admitted that the day planner was hers and that

she had lent it to Marissa. Wilson had other reports of their friendship from staff members, whohad identified Savana and Marissa as part of an unusually rowdy group at the schools opening

dance in August, during which alcohol and cigarettes were found in the girls bathroom. Wilson

had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero hadtold the principal that before the dance, he had been at a party as Savanas house where alcohol

was served. Marissas statement that the pills came from Savana was thus sufficiently plausible

to warrant suspicion that Savana was involved in pill distribution.

experience to appreciate what may be needed. Except in patently arbitrary instances, Fourth

Amendment analysis takes the rule as a given, as it obviously should do in this case. There is no

need here either to explain the imperative of keeping drugs out of schools, or to explain thereasons for the schools rule banning all drugs, no matter how benign, without advance

permission. Teachers are not pharmacologists trained to identify pills and powders, and an

effective drug ban has to be enforceable fast. The plenary ban makes sense, and there is no basisto claim that the search was unreasonable owing to some defect or shortcoming of the rule it was

aimed at enforcing


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This suspicion of Wilsons was enough to justify a search of Savanas backpack and

other clothing.2 If a student is reasonably suspected of giving out contraband pills, she isreasonably suspected of carrying them on her person and in the carryall that has become an item

of student uniform in most places today. If Wilsons reasonable suspicion of pill distribution

were not understood to support searches of outer clothes and backpack, it would not justify any

search worth making. And the look into Savanas bag, in her presence and in the relative privacyof Wilsons office, was not excessively intrusive, any more than Romeros subsequent search of

her outer clothing.

B

Here it is that the parties part company, with Savanas claim that extending the search atWilsons behest to the point of making her pull out her underwear was constitutionally

unreasonable. The exact label for this final step in the intrusion is not important, though strip

search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes

down to her underwear, and then pull out her bra and the elastic band on her underpants. . . .Although Romero and Schwallier stated that they did not see anything when Savana followed

their instructions, . . . we would not define strip search and its Fourth Amendment consequences

in a way that would guarantee litigation about who was looking and how much was seen. Thevery fact of Savanas pulling her underwear away from her body in the presence of the two

officials who were able to see her necessarily exposed breasts and pelvic area to some degree,

and both subjective and reasonable societal expectations of personal privacy support thetreatment of such a search as categorically distinct, requiring distinct elements of justification on

the part of school authorities for getting beyond a search of outer clothing and belongings.

Savanas subjective expectation of privacy against such a search is inherent in her

account of it as embarrassing, frightening, and humiliating. The reasonableness of herexpectation (required by the Fourth Amendment standard) is indicated by the consistent

experiences of other young people similarly searched, whose adolescent vulnerability intensifies

the patent intrusiveness of the exposure. . . .The indignity of the search does not, of course, outlaw it, but it does implicate the rule of

reasonableness as stated in T.L.O., that the search as actually conducted [be] reasonably related

in scope to the circumstances which justified the interference in the first place. . . . The scopewill be permissible, that is, when it is not excessively intrusive in light of the age and sex of the

student and the nature of the infraction. . . .

Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew

beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen,common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the

nature and limited threat of the specific drugs he was searching for, and while just about

anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that

2There is no question here that justification for the school officials search was required in

accordance with the T.L.O. standard of reasonable suspicion, for it is common ground that

Savana had a reasonable expectation of privacy covering the personal things she chose to carryin her backpack, . . . and that Wilsons decision to look through it was a search within the

meaning of the Fourth Amendment.


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large amounts of the drugs were being passed around, or that individual students were receiving

great numbers of pills.

Nor could Wilson have suspected that Savana was hiding common painkillers in herunderwear. Petitioners suggest, as a truth universally acknowledged, that students . . . hid[e]

contraband in or under their clothing, . . . and cite a smattering of cases of students with

contraband in their underwear. . . . But when the categorically extreme intrusiveness of a searchdown to the body of an adolescent requires some justification in suspected facts, general

background possibilities fall short; a reasonable search that extensive calls for suspicion that it

will pay off. But nondangerous school contraband does not raise the specter of stashes in

intimate places, and there is no evidence in the record of any general practice among SaffordMiddle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa

suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson

ordered yielded nothing. Wilson never even determined when Marissa had received the pillsfrom Savana if it had been a few days before, that would weigh heavily against any reasonable

conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any

indication of danger to the students from the power of the drugs or their quantity, and any reasonto suppose that Savana was carrying pills in her underwear. We think that the combination of

these deficiencies was fatal to finding the search reasonable.

In so holding, we mean to cast no ill reflection on the assistant principal, for the record

raises no doubt that his motive throughout was to eliminate drugs from his school and protectstudents from what Jordan Romero had gone through. Parents are known to overreact to protect

their children from danger, and a school official with responsibility for safety may tend to do the

same. The difference is that the Fourth Amendment places limits on the official, even with thehigh degree of deference that courts must pay to the educators professional judgment.

We do mean, though, to make it clear that the T.L.O. concern to limit a school search to

reasonable scope requires the support of reasonable suspicion of danger or of resort to underwearfor hiding evidence of wrongdoing before a search can reasonably make the quantum leap from

outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the

degradation its subject may reasonably feel, place a search that intrusive in a category of its owndemanding its own specific suspicions.

[In the remainder of the opinion, the Court held that because the law regarding the strip

searching of students had not been clearly established, the school officials were entitled to

qualified immunity.]

[In separate opinions, Justices Stevens and Ginsburg concurred on the FourthAmendment issue, but dissented on the question of qualified immunity.]

Justice THOMAS, concurring in the judgment in part and dissenting in part.

I agree with the Court that the judgment against the school officials with respect to

qualified immunity should be reversed. . . . Unlike the majority, however, I would hold that the

search of Savana Redding did not violate the Fourth Amendment. The majority imposes a vagueand amorphous standard on school administrators. It also grants judges sweeping authority to

second-guess the measures that these officials take to maintain discipline in their schools and


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question was sufficiently dangerous. Such a test is unworkable and unsound. School officials

cannot be expected to halt searches based on the possibility that a court might later find that theparticular infraction at issue is not severe enough to warrant an intrusive investigation.

3.02 WARRANTLESS SEARCHES

[I] Exigent Circumstances

Page 362: [Add as new principal cases]

MICHIGAN v. FISHER


130 S. Ct. 546(2009)

PER CURIAM.

Police officers responded to a complaint of a disturbance near Allen Road inBrownstown, Michigan. Officer Christopher Goolsby later testified that, as he and his partner

approached the area, a couple directed them to a residence where a man was going crazy. . . .Upon their arrival, the officers found a household in considerable chaos: a pickup truck in the

driveway with its front smashed, damaged fenceposts along the side of the property, and threebroken house windows, the glass still on the ground outside. The officers also noticed blood on

the hood of the pickup and on clothes inside of it, as well as one of the doors to the house. (It is

disputed whether they noticed this immediately upon reaching the house, but undisputed thatthey noticed it before the allegedly unconstitutional entry.) Through a window, the officers could

see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door

was locked, and a couch had been placed to block the front door.

The officers knocked, but Fisher refused to answer. They saw that Fisher had a cut on hishand, and they asked him whether he needed medical attention. Fisher ignored these questions

and demanded, with accompanying profanity, that the officers go to get a search warrant. Officer

Goolsby then pushed the front door partway open and ventured into the house. Through thewindow of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew.

Fisher was charged under Michigan law with assault with a dangerous weapon and

possession of a firearm during the commission of a felony. The trial court concluded that Officer

Goolsby violated the Fourth Amendment when he entered Fishers house, and granted Fishersmotion to suppress the evidence obtained as a resultthat is, Officer Goolsbys statement that

Fisher pointed a rifle at him.

[The Michigan Court of Appeals sustained the ruling of the trial court, and the MichiganSupreme Court denied leave to appeal.] Because the decision of the Michigan Court of Appealsis indeed contrary to our Fourth Amendment case law, particularly Brigham City v. Stuart, 547

U.S. 398(2006), we grant the States petition for certiorari and reverse. . .

[L]aw enforcement officers may enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an occupant from imminent injury. . . . This
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emergency aid exception does not depend on the officers subjective intent or the seriousness

of any crime they are investigating when the emergency arises. . . . It requires only anobjectively reasonable basis for believing, . . . that a person within [the house] is in need of

immediate aid. . . .

Brigham City illustrates the application of this standard. There, police officers responded

to a noise complaint in the early hours of the morning. As they approached the house, theycould hear from within an altercation occurring, some kind of fight. . . . Following the tumult to

the back of the house whence it came, the officers saw juveniles drinking beer in the backyard

and a fight unfolding in the kitchen. They watched through the window as a juvenile broke free

from the adults restraining him and punched another adult in the face, who recoiled to the sink,spitting blood. . . . Under these circumstances, we found it plainly reasonable for the officers to

enter the house and quell the violence, for they had an objectively reasonable basis for believing

both that the injured adult might need help and that the violence in the kitchen was justbeginning. . . .

A straightforward application of the emergency aid exception, as in Brigham City,

dictates that the officers entry was reasonable. Just as in Brigham City the police officers here

were responding to a report of a disturbance. Just as in Brigham City, when they arrived on thescene they encountered a tumultuous situation in the houseand here they also found signs of a

recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers

could see violent behavior inside. Although Officer Goolsby and his partner did not see punchesthrown, as did the officers in Brigham City, they did see Fisher screaming and throwing things. It

would be objectively reasonable to believe that Fishers projectiles might have a human target

(perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short,

we find it as plain here as we did in Brigham City that the officers entry was reasonable underthe Fourth Amendment. . . .

JUSTICE STEVENS, with whom JUSTICE SOTOMAYOR joins, dissenting.

. . . Today, without having heard Officer Goolsbys testimony, this Court decides that thetrial judge got it wrong. I am not persuaded that he did, but even if we made that assumption, it is

hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals

making fact-intensive decisions of this kind. We ought not usrup the role of the factfinder whenfaced with a close question of the reasonableness of an officers actions, particularly in a case

tried in a state court. I therefore respectfully dissent.

KENTUCKY v. KING


__ U.S. __ (2011)

JUSTICE ALITO delivered the opinion of the Court.

It is well established that exigent circumstances, including the need to prevent thedestruction of evidence, permit police officers to conduct an otherwise permissible search

without first obtaining a warrant. In this case, we consider whether this rule applies when police,

by knocking on the door of a residence and announcing their presence, cause the occupants to


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attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances

rule does not apply in the case at hand because the police should have foreseen that their conductwould prompt the occupants to attempt to destroy evidence. We reject this interpretation of the

exigent circumstances rule. The conduct of the police prior to their entry into the apartment was

entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a

situation, the exigent circumstances rule applies.I

A

This case concerns the search of an apartment in Lexington, Kentucky. Police officers

set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer

Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After thedeal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the

officers that the suspect was moving quickly toward the breezeway of an apartment building, and

he urged them to hurry up and get there before the suspect entered an apartment. . . .

In response to the radio alert, the uniformed officers drove into the nearby parking lot,left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a

door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the

officers saw two apartments, one on the left and one on the right, and they did not know whichapartment the suspect had entered. Gibbons had radioed that the suspect was running into the

apartment on the right, but the officers did not hear this statement because they had already left

their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left,

they approached the door of that apartment.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified

that the officers banged on the left apartment door as loud as [they] could and announced,

This is the police or Police, police, police. . . . Cobb said that [a]s soon as [the officers]

started banging on the door, they could hear people inside moving, and [i]t sounded as[though] things were being moved inside the apartment. . . . These noises, Cobb testified, led

the officers to believe that drug-related evidence was about to be destroyed.

At that point, the officers announced that they were going to make entry inside the

apartment. . . . Cobb then kicked in the door, the officers entered the apartment, and they found

three people in the front room: respondent Hollis King, respondents girlfriend, and a guest who

was smoking marijuana. The officers performed a protective sweep of the apartment duringwhich they saw marijuana and powder cocaine in plain view. In a subsequent search, they also

discovered crack cocaine, cash, and drug paraphernalia.

Police eventually entered the apartment on the right. Inside, they found the suspected

drug dealer who was the initial target of the investigation.

B

In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in

marijuana, first degree trafficking in a controlled substance, and second-degree persistent felony

offender status. Respondent filed a motion to suppress the evidence from the warrantless search,but the Circuit Court denied the motion. The Circuit Court concluded that the officers had


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probable cause to investigate the marijuana odor and that the officers properly conducted [the

investigation] by initially knocking on the door of the apartment unit and awaiting the responseor consensual entry. . . . Exigent circumstances justified the warrantless entry, the court held,

because there was no response at all to the knocking, and because Officer Cobb heard

movement in the apartment which he reasonably concluded were persons in the act of destroying

evidence, particularly narcotics because of the smell. . . . Respondent then entered a conditionalguilty plea, reserving his right to appeal the denial of the suppression motion. The court

sentenced respondent to 11 years imprisonment.

The Kentucky Court of Appeals affirmed. It held that exigent circumstances justified the

warrantless entry because the police reasonably believed that evidence would be destroyed. Thepolice did not impermissibly create the exigency, the court explained, because they did not

deliberately evade the warrant requirement.

The Supreme Court of Kentucy reversed. . . As a preliminary matter, the court observed

that there was certainly some question as to whether the sound of persons moving [inside theapartment] was sufficient to establish that evidence was being destroyed. . . . But the court did

not answer that question. Instead, it assume[d] for the purpose of argument that exigent

circumstances existed. . . .

To determine whether police impermissibly created the exigency, the Supreme Court ofKentucky announced a two-part test. First, the court held, police cannot deliberately creat[e]

the exigent circumstances with the bad faith intent to avoid the warrant requirement. . . .

Second, even absent bad faith, the court concluded, police may not rely on exigent circumstancesif it was reasonably foreseeable that the investigative tactics employed by the police would

create the exigent circumstances. . . . Although the court found no evidence of bad faith, it held

that exigent circumstances could not justify the search because it was reasonably foreseeable thatthe occupants would destroy evidence when the police knocked on the door and announced their

presence. . . .

We granted certiorari. . . .

II

. . .

B

Over the years, lower courts have developed an exception to the exigent circumstances

rule, the so-called police-created exigency doctrine. Under this doctrine, police may not rely

on the need to prevent destruction of evidence when that exigency was created ormanufactured by the conduct of the police. . . .

In applying this exception for the creation or manufacturing of an exigency by the

police, courts require something more than mere proof that fear of detection by the police caused

the destruction of evidence. An additional showing is obviously needed because, as the EighthCircuit has recognized, in some sense the police always create the exigent circumstances.

United States v. Duchi, 906 F.2d 1278, 1284(CA8 1990). That is to say, in the vast majority of

cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reasonfor the destruction is fear that the evidence will fall into the hands of law enforcement.
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Destruction of evidence issues probably occur most frequently in drug cases because drugs may

be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons inpossession of valuable drugs are unlikely to destroy them unless they fear discovery by the

police. Consequently, a rule that precludes the police from making a warrantless entry to prevent

the destruction of evidence whenever their conduct causes the exigency would unreasonably

shrink the reach of this well-established exception to the warrant requirement.Presumably for the purpose of avoiding such a result, the lower courts have held that the

police-created exigency doctrine requires more than simple causation, but the lower courts have

not agreed on the test to be applied. Indeed, the petition in this case maintains that [t]here are

currently five different tests being used by the United States Courts of Appeals, . . . and somestate courts have crafted additional tests . . ..

III

A

Despite the welter of tests devised by the lower courts, the answer to the question

presented in this case follows directly and clearly from the principle that permits warrantlesssearches in the first place. As previously noted, warrantless searches are allowed when the

circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense

with the warrant requirement. Therefore the answer to the question before us is that the exigentcircumstances rule justifies a warrantless search when the conduct of the police preceding the

exigency is reasonable in the same sense. Where, as here, the police did not create the exigency

by engaging or threatening to engage or threatening to engage in conduct that violates the Fourth

Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thusallowed.

1

. . .

B

Some lower courts have adopted a rule that is similar to the one we recognize today. . . .But others, including the Kentucky Supreme Court, have imposed additional requirements that

are unsound and that we now reject.

Bad faith. Some courts, including the Kentucky Supreme Court, ask whether law

enforcement officers deliberately created the exigent circumstances with the bad faith intent toavoid the warrant requirement. . . .

This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence.

Our cases have repeatedly rejected a subjective approach, asking only whether the

circumstances, viewed objectively, justify the action. . . .

1 There is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should

not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they

will enter without permission unless admitted. In this case, however, no such actual threat was made, and therefore

we have no need to reach that question.


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Reasonable foreseeability. Some courts, again including the Kentucky Supreme Court,

hold that police may not rely on an exigency if it was reasonably foreseeable that theinvestigative tactics employed by the police would create the exigent circumstances. . . .

Contrary to this reasoning, however, we have rejected the notion that police may seize

evidence without a warrant only when they come across the evidence by happenstance. In

Horton . . . we held that the police may seize evidence in plain view even though the officersmay be interested in an item of evidence and fully expec[t] to find it in the course of a search. .

. .

Adoption of a reasonable foreseeability test would also introduce an unacceptable degree

of unpredictability. For example, whenever law enforcement officers knock on the door ofpremises occupied by a person who may be involved in the drug trade, there is some possibility

that the occupants may possess drugs and may seek to destroy them. Under a reasonable

foreseeability test, it would be necessary to quantify the degree of predictability that must be

reached before the police-created exigency doctrine comes into play.

. . .

Probable cause and time to secure a warrant. Some courts, in applying the police-

created exigency doctrine, fault law enforcement officers if, after acquiring evidence that is

sufficient to establish probable cause to search particular premises, the officers do not seek awarrant but instead knock on the door and seek either to speak with an occupant or to obtain

consent to search. . . .

This approach unjustifiably interferes with legitimate law enforcement strategies. There

are many entirely proper reasons why police may not want to seek a search warrant as soon asthe bare minimum of evidence needed to establish probable cause is acquired. Without

attempting to provide a comprehensive list of these reasons, we note a few.

First, the police may wish to speak with the occupants of a dwelling before deciding

whether it is worthwhile to seek authorization for a search. They may think that a short andsimple conversation may obviate the need to apply for and execute a warrant. . . . Second, the

police may want to ask an occupant of the premises for consent to search because doing so issimpler, faster, and less burdensome than applying for a warrant. A consensual seach also may

result in considerably less inconvenience and embarrassment to the occupants than a search

conducted pursuant to a warrant. . . . Third, law enforcement officers may wish to obtain more

evidence before submitting what might otherwise be considered a marginal warrant application.Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is

broader in scope than the search that a judicial officer is likely to authorize based on the evidence

then available. And finally, in many cases, law enforcement may not want to execute a searchthat will disclose the existence of an investigation because doing so may interfere with the

acquisition of additional evidence against those already under suspicion or evidence aboutadditional but as yet unknown participants in a criminal scheme.

We have said that [l]aw enforcement officers are under no constitutional duty to call ahalt to a criminal investigation the moment they have the minimum evidence to establish

probable cause. Hoffa v. United States . . .. Faulting the police for failing to apply for a search


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warrant at the earliest possible time after obtaining probable cause imposes a duty that is

nowhere to be found in the Constitution.

Standard of good investigative tactics. Finally, some lower court cases suggest that lawenforcement officers may be found to have created or manufactured an exigency if the court

concludes that the course of their investigation was contrary to standard or good law

enforcement practices (or to the policies or practices of their jurisdictions). . . . This approachfails to provide clear guidance for law enforcement officers and authorizes courts to make

judgments on matters that are the province of those who are responsible for federal and state law

enforcement agencies.

C

Respondent argues for a rule that differs from those discussed above, but his rule is alsoflawed. Respondent contends that law enforcement officers impermissibly create an exigency

when they engage in conduct that would cause a reasonable person to believe that entry is

imminent and inevitable. . . . In respondents view, relevant factors include the officers tone ofvoice in announcing their presence and the forcefulness of their knocks. But the ability of law

enforcement officers to respond to an exigency cannot turn on such subtleties.

Police officers may have a very good reason to announce their presence loudly and to

knock on the door with some force. A forceful knock may be necessary to alert the occupantsthat someone is at the door. . . . Furthermore, unless police officers identify themselves loudly

enough, occupants may not know who is at their doorstep. Officers are permittedindeed,

encouragedto identify themselves to citizens, and in many circumstances this is a cause for

assurance, not discomfort. . . . Citizens who are startled by an unexpected knock on the door orby the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that

these persons are police officers. Others may appreciate the opportunity to make an informed

decision about whether to answer the door to the police.

If respondents test were adopted, it would be extremely difficult for police officers toknow how loudly they may announce their presence or how forcefully they may knock on a door

without running afoul of the police-created exigency rule. And in most cases, it would be nearlyimpossible for a court to determine whether that threshold had been passed. The Fourth

Amendment does not require the nebulous and impractical test that respondent proposes.

D

For these reasons, we conclude that the exigent circumstances rule applies when thepolice do not gain entry to premises by means of an actual or threatened violation of the Fourth

Amendment. This holding provides ample protection for the privacy rights that the Amendment

protects.

When law enforcement officers who are not armed with a warrant knock on a door, theydo no more than any private citizen might do. And whether the person who knocks on the door

and requests the opportunity to speak is a police officer or a private citizen, the occupant has no

obligation to open the door or to speak. . . . And even if an occupant chooses to open the door

and speak with the officers, the occupant need not allow the officers to enter the premises andmay refuse to answer any questions at any time.


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Occupants who choose not to stand on their constitutional rights but instead elect to

attempt to destroy evidence have only themselves to blame for the warrantless exigentcircumstances search that may ensue.

IV

We now apply our interpretation of the police-created exigency doctrine to the facts of

this case.

A

We need not decide whether exigent circumstances existed in this case. Any warrantless

entry based on exigent circumstances must, of course, be supported by a genuine exigency. . . .The trial court and the Kentucky Court of Appeals found that there was a real exigency in this

case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was

certainly some question as to whether the sound of persons moving [inside the apartment] wassufficient to establish that evidence was being destroyed. . . . The Kentucky Supreme Court

assum[ed] for the purpose of argument that exigent circumstances existed, . . . and it held that

the police had impermissibly manufactured the exigency.

We, too, assume for purposes of argument that an exigency existed. We decide only thequestion on which the Kentucky Supreme Court ruled and on which we granted certiorari.

Under what circumstances do police impermissibly create an exigency? Any question about

whether an exigency actually existed is better addressed by the Kentucky Supreme Court onremand. . . .

B

In this case, we see no evidence that the officers either violated the Fourth Amendment or

threatened to do so prior to the point when they entered the apartment. Officer Cobb testified

without contradiction that the officers banged on the door as loud as [they] could and

announced either Police, police, police or This is the police. . . . This conduct wasentirely consistent with the Fourth Amendment, and we are aware of no other evidence thatmight show that the officers either violated the Fourth Amendment or threatened to do so (for

example, by announcing that they would break down the door if the occupants did not open the

door voluntarily).

Respondent argues that the officers demanded entry to the apartment, but he has notpointed to any evidence in the record that supports this assertion. He relies on a passing

statement made by the trial court in its opinion denying respondents motion to suppress. . . . In

recounting the events that preceded the search, the judge wrote that the officers banged on thedoor of the apartment on the back left of the breezeway identifying themselves as police officers

and demanding that the door be opened by the persons inside. . . . However, at a later point in

the opinion, the judge stated that the officers initially knock[ed] on the door of the apartmentunit and await[ed] the response or consensual entry. . . . This latter statement is consistent with

the testimony at the suppression hearing and with the findings of the state appellate courts. . . .

There is no evidence of a demand of any sort, much less a demand that amounts to a threat to

violate the Fourth Amendment. If there is contradictory evidence that has not been brought toour attention, the state court may elect to address that matter on remand.


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Finally, respondent claims that the officers explained to [the occupants that the officers]

were going to make entry inside the apartment, . . . but the record is clear that the officers didnot make this statement until after the exigency arose. As Officer Cobb testified, the officers

knew that there was possibly something that was going to be destroyed inside the apartment,

and [a]t that point, . . . [they] explained [that they] were going to make entry. . . . (emphasis

added). Given that this announcement was made after the exigency arose, it could not havecreated the exigency.

. . .

The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for

further proceedings not inconsistent with this opinion.

JUSTICE GINSBURG, dissenting.

The Court today arms the police with a way routinely to dishonor the FourthAmendments warrant requirement in drug cases. In lieu of presenting their evidence to a neutral

magistrate, police officers may now knock, listen, then break the door down, never mind that

they had ample time to obtain a warrant. I dissent from the Courts reduction of the FourthAmendments force.

. . . The question presented: May police, who could pause to gain the approval of a

neutral magistrate, dispense with the need to get a warrant by themselves creating exigent

circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency mustexist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted

by their own conduct.

I

Two pillars of our Fourth Amendment jurisprudence should have controlled the Courts

ruling: First, whenever practical, [the police must] obtain advance judicial approval of searches

and seizures through the warrant procedure. Terry v. Ohio. . .; second, unwarranted searchesand seizures inside a home bear heightened scrutiny, Payton v. New York . . .. [T]he policebear a heavy burden, the Court has cautioned, when attempting to demonstrate an urgent need

that might justify warrantless searches. Welsh v. Wisconsin. . .

That heavy burden has not been carried here. There was little risk that drug-related

evidence would have been destroyed had the police delayed the search pending a magistratesauthorization. As the Court recognizes, [p]ersons in possession of valuable drugs are unlikely

to destroy them unless they fear discovery by the police. . . . Nothing in the record shows that,

prior to the knock at the apartment door, the occupants were apprehensive about policeproximity. . . .

II

. . . Under an appropriately reined-in emergency or exigent circumstances exception,

the result in this case should not be in doubt. The target of the investigations entry into the

building, and the smell of marijuana seeping under the apartment door into the hallway, theKentucky Supreme Court rightly determined, gave the police probable cause . . . sufficient . . .

to obtain a warrant to search . . . the apartment. . . . As that court observed, nothing made it


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impracticable for the police to post officers on the premises while proceeding to obtain a warrant

authorizing their entry.

NOTES AND QUESTIONS

(1) It would appear undisputed that the exigent circumstances justifying the warrantlessentry resulted from the police activity within the apartment building. It is equally obvious that

the offense preceding the search was initiated by the police who had set up a controlled buy.

Is the exigency for the search more dubious because, but for official inducement, the particularcrime would not have occurred at all?

(2) The officers entered the wrong apartment, a fact the Court notes but apparently

considers insignificant. Do you agree? The only facts implicating the occupants of the entered

apartment (one of whom is the respondent in this prosecution) was an odor of burning marijuanaand noises which led the officers to believe that drug-related evidence was about to be

destroyed. Should that be enough? What if marijuana use is not a crime?

The drug dealer targeted by the police presumably was inside one of the two apartments.

Once the police discover they have the wrong one, would they be justified in making awarrantless entry into the other one, notwithstanding the absence of any suspicious odors or

sounds?

(3) Justice Ginsburg observes that exceptions to the search warrant requirement are

indeed exceptions, and warrants are presumed to be the rule. She also notes that this isparticularly the case when residential premises are the target of the search. The idea that

warrants are needed when officers have both probable cause and time to secure a warrant is

dismissed by the majority with the explanation, [t]his approach unjustifiably interferes withlegitimate law enforcement strategies. Is it possible that any requirement that a warrant must be

obtained may be seen by officers to interfere with legitimate law enforcement strategies? Does

the present case suggests that the Court will stand ready to legitimize such strategies?

(4) The King decision appears to focus solely on narcotics investigations. The dissentseems to assume that the holding is relevant only to drug cases. Can you envision any other

situation in which the decision would validate a warrantless search which otherwise would notcome within the exigent circumstances exception?


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Chapter 4

THE RIGHT TO COUNSEL

4.01 Recognition of the Right


The problem of public defendants with massive caseloads continues to plague the entireU.S. criminal justice system. Excellent research has been developed on the problem. See, e.g.,

Drinan,The National Right to Counsel Act: A Congressional Solution to the National Indigent

Defense Crisis, 47 Harv. J. on Legis. 487(2010); Symposium, Broke and Broken: Can We FixOur State Indigent Defense System? 75 Mo. L. Rev. 667(2010). InIn re E.S.90 Cal. Rptr. 3d564, 584 (Cal. App. 2009) the court wrote of the professional responsibility of defenders in

facing crushing numbers of clients.

The American Bar Association (ABA) has devoted much attention to the

obligations of a public defender in the predicament in which Hauschild foundhimself. On May 13, 2006, the ABA issued its formal opinion [on point].

Noting that, as under the California Rules of Professional Conduct a publicdefenders office is considered to be the equivalent of a law firm andresponsibility for handling [a] case [] falls upon [the] office as [a] whole ,

the opinion makes clear that the ethical obligations of public defenders and other

publically funded attorneys who represent indigent persons charged with crimesare no different from those of privately retained defense counsel. Under the ABA

Opinion, a deputy public defender whose excessive workload obstructs his or her

ability to provide effective assistance to a particular client should, withsupervisorial approval, attempt to reduce the caseload, as by transferring

nonrepresentational responsibilities to others, refusing new cases, and/or

transferring cases to another lawyer with a lesser caseload. If the deputy public

defender is unable to obtain relief in that manner the ABA Opinion provides, heor she must file a motion with the trial court requesting permission to withdraw

from a sufficient number of cases to allow the provision of competent and diligentrepresentation to the remaining clients. In support of the motion, counsel

should provide the court with information necessary to justify the withdrawal,

while being mindful of the obligations not to disclose confidential information orinformation as to strategy or other matters that may prejudice the client. If the

request to withdraw is denied by the trial court, the attorney should pursue

appellate review.

See generally, Baxter, Gideons Ghost: Providing the Sixth Amendment Right to Counsel in

Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 342(2010). At trial in People v. Abernathy,

926 N.E. 2d 435 (Ill. App. 2010), the defendant retained private counsel. Upon conviction hedischarged the attorney and requested appointed counsel. The trial judge denied the requestbelieving the defendant was not indigent. The belief was based upon the presence of retained

counsel at the trial. The ruling was reversed with the appeals court emphasizing the duty of the

trial judge to carefully consider the question of indigency: Here, the trial courtassumed that,because Abernathy had previously been able to obtain private counsel, he was not indigent.

However, such an assumption is not in accord with Illinois law. Instead, the court is required to
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inquire into the defendants actual financial circumstances and reach a reasoned determination

concerning indigency.

Page 382: [Add to text:]

Private lawyers in Missouri have a professional responsibility to represent indigent defendants ifnecessary, for they have an obligation to perform public service. State v. Pratte,298 S.W.3d

870(Mo. 2009).

4.03 The Right to aPro SeDefense


But the risk of danger or disruption must be clear before the defendant can be denied his right ofself-representation. For an exchange between judges on how clear that risk must be, see, People

v. Butler, 219 P.3d 982(Cal. 2009) [record of violent conduct and jail restrictions not sufficient.]


The more limited view was stated in United States v. Gerritsen, 571 F.3d 1001, 1007(9th Cir.

2009):A defendant therefore has two correlative and mutually exclusive SixthAmendment rights: the right to have counsel, on one hand, and the right to refuse

counsel and represent himself, on the other.

But see,Lay v. State, 179 P.3d 615(Okla. 2008) where the court required standby counsel in

all capital cases involving self-representation.


The Wisconsin Court of Appeals agreed that the trial judge has no duty to advise the

defendant of the right to self-representation. State v. Darby, 766 N.W.2d 77(Wisc. App. 2009).

Several courts have held that the request for self-representation must be clear, it cannot be

equivocal. See, e.g., United States v. Mendez-Sanchez, 563 F.3d 935(9th Cir. 2009):

[B]ecause the exercise of self-representation cuts off the exercise the right to

counsel, often to individual detriment, we recognize the right only when it isasserted without equivocation. [I]f [the defendant] equivocates, he is presumed

to have requested the assistance of counsel.

But if the request is clear, and the defendant has made a knowing decision, the trial judges role

is limited. She does not have any discretion. Alongi v. Ricci, 367 Fed. Appx. 341 (3rd Cir.2010).

Page 417 [Add to Note 4:]

The Indiana Supreme Court exercising its supervisory power now requires trialjudges to warn defendants of the dangers of self representation. Hopper v. State, 934 N.E. 2d

1086(Ind. 2010).
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The state constitution in Washington requires that the defendant be allowed to represent

herself on appeal, as the Faretta rationale ispersuasive whether the defendant wants to makehis own case at trial or on appeal. State v. Rafay, 229 P.3d 86(Wash. 2009).

4.04 When the Right Applies


The court in People v. White, 917 N.E.2d 1018 (Ill. App. 2009) found a Sixth Amendment

violation when defense counsel was not allowed to observe the moment of identification of thedefendant by the witness.

[A] general police policy of prohibiting counsel from observing the moment of

identification, frustrates the second purpose of Wade and Gilbert, which is to

safeguard against the inherent risks of suggestion (intentional or unintentional)that are present in lineups generally. This is especially true in this case, where

defense counsel was in all respects prohibited from any contact with the witnessesor those conducting the lineup.


See also, Koosed, Reforming Eyewitness Identification Law and Practices to Protect the

Innocent, 42 CREIGHTON L. REV. 595 (2009); Thompson, Beyond a Reasonable Doubt?

Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. DAVIS L. REV.

1487(2008).


In several recent opinions, judges have evaluated the importance of having experts testify

as to the reliability of eyewitness identifications. The court inBomas v. State, 987 A.2d 98(Md.2010) was clearly concerned over potential battles of the experts:

We appreciate that scientific advances have revealed (and may continue to reveal)a novel or greater understanding of the mechanics of memory that may not be

intuitive to a layperson. Nonetheless, some of the factors of eyewitnessidentification are not beyond the ken of jurors. For example, the effects of stress

or time are generally know to exacerbate memory loss and, barring a specific set

of facts, do not require expert testimony for the layperson to understand them in

the context of eyewitness testimony. In recognition of this, we believe, consistentwith our past holdings, that a flexible standard that can properly gauge the state of

the scientific art in relation to the specific facts of the case is best.

Contrast with State v. Clopten, 223 P.3d 1103(Utah 2009):

The most troubling dilemma regarding eyewitnesses stems from the possibilitythat an inaccurate identification may be just as convincing to a jury as an accurate

one. As one leading researcher said: [T]here is almost nothing more

convincing than a live human being who takes the stand, points a finger at the

defendant, and says Thats the one! Elizabeth F. Loftus, Eyewitness Testimony
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19 (1979). Because of this overreliance on questionable eyewitnesses, juries will

often benefit from assistance as they sort reliable testimony from unreliabletestimony. The challenge arises in determining how best to provide that

assistance in cases where mistaken identification is a possibility. It is apparent

from the research that the inclusion of expert testimony carries significant

advantages over the alternatives, namely cross-examination and jury instructions.Page 510 [Add to Note 1:]

In Turner v. Rogers, __U.S.__ (2011), a majority of the Supreme Court held that there is

no automatic right to counsel for indigent civil defendants facing jail time for civil contempt.

States are not required to give counsel in such cases, but they must provide proceduralsafeguards to determine whether the parent is able to comply with the underlying support decree

which was the basis for the contempt order. In this case, the judge sentenced the defendant to a

year in jail without making an express finding about his ability to pay outstanding child support.

The majority opinion found that Turner did not get due process in his case. It also held that alawyer is not an automatic requirement, as the Due Process Clause allows a state to provide

fewer procedural protections to civil contempt defendants than in a criminal case, which is

governed by the Sixth Amendment. The four dissenting Justices agreed there is no right toappointed counsel for indigent defendants facing incarceration in civil contempt proceedings.

They would not have reached the issue of alternative procedural safeguards.

4.05 Ineffective Assistance of Counsel

Page 525: [Add to comment:]

In a set of short, per curiam opinions dealing with capital cases, the Supreme Court laidout some basic principles regarding ineffective assistance and the duty of the defense lawyer to

adequately consider mitigating factors at the sentencing stage. See,Bobby v. Van Hook, 130 S.

Ct. 13(2009), Wong v. Belmontes, 130 S. Ct. 383(2009), and Porter v. McCollum, 130 S. Ct.

447(2009). In Van Hook the Justices noted that the ABA Guidelines for the Appointment andPerformance of Defense Counsel in Death Penalty Cases would be helpful to determine

competent assistance, but would not be the set standard. Wongestablished that the fa

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