Outline

CRIMINAL PROCEDURE OUTLINEProfessor Shealy - Spring 2007

I. THE FOURTH AMENDMENT

Two Clauses(1) Warrant Clause (2) Reasonableness Clause

Warrant Clause predominates - if police search or seize w/out a warrant its presumptively unreasonable

Basics: (1) Does NOT apply to private action (2) Protects the “People”

Weeks v. US : a person aggrieved of an unlawful search/seizure may move to have property returned

Mapp v. Ohio: Applied exclusionary rule to criminal prosecutions in state courts

II. PASSING THE THRESHOLD OF THE FOURTH AMENDMENT

Inquiry requires … (1) that there be governmental action; (2) that implicates a “person, paper, house, or effect”; (3) and that is considered a search or seizure; (4) was that search/seizure “reasonable”?

A. What is a Search?

Katz v. US: the phone booth bug case; Govt. argued not a search b/c searches can only occur when there is a physical invasion of constitutionally protected area; Court held that person in phone booth expects conversation to be private and location of bug was irrelevant

Katz Test … 4th protects “people not places”(1) Did the person have an actual expectation of privacy? (subjective)(2) Was that expectation one that society would recognize as reasonable? (objective)

B. Applying Katz

1. Abandoned Property

Abandonment of property is inconsistent with retention of privacy or possessory interests; if a person questioned by police denies that certain property is his, he abandons his interest in the property

2. False Friends

4th protects private conversations where no party consents to the surveillance and/or recording but does NOT protect conversations where one party consents to such activity.

U.S. v. White: D convicted from conversations w/ wired informant and cops in closet; Court held NOT a search; no expectation of privacy that person with whom he was conversing will not then reveal conversation to cops; no warrant needed whether recorded by present agent or thru radio equipment when informant is involved.

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No expectation of privacy – one contemplating illegal activities must realize the risk his companions will tell police; 4th does NOT protect person’s misplaced belief that other person will not reveal info.

3. Pen Registers

Smith v. Maryland: Cops installed a pen register in phone company office to record numbers called by D; Court held NOT a search; D did not likely have expectation of privacy in numbers dialed and even if he did, that expectation was unreasonable b/c he voluntarily conveyed numbers to company.

4. Sensory Enhancement Devices

Investigation by enhancing the senses is NOT a search; So long as devices do no more than aid the cops in obtaining info that they could have gotten thru their own sensory perception

a. Beepers (Tracking Devices)

Knotts v. US: Cops put beeper on D’s car to track him; NOT a search b/c info obtained consisted only of D’s public movements.

4th Amendment only becomes applicable when the beeper begins to transmit info and then only if the info concerns private activity

US v. Karo: beeper on can of ether; NO search until … can entered house; then it was a search b/c everyone has actual and reasonable expectation of privacy in home.

b. Thermal Imaging Devices

Usually IS a search … Kyllo v. US: cops used device to determine that garage was much warmer than rest of house – growing pot; WAS a search b/c device got info that could not have otherwise been gotten without a “physical intrusion into a constitutionally protected area”; Court also noted that device wasn’t in general public use

5. Trash Pull

CA v. Greenwood: officers searched garbage in front of house; NOT a search; no reasonable expectation of privacy in trash left outside the curtilage of one’s home (abandoned)

6. Bank Records

NOT a search; since bank has records, no reasonable expectation of privacy

7. Dog Sniffs

NOT a search b/c it doesn’t require the opening of anything; However, while sniff is not a search, the opening is a search which triggers 4th and requires a warrant or some exception; Positive dog alert suffices for PC where it is shown that dog has reliable track record; officer and dog must be in lawful place-no sniff on private property

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Illinois v. Caballes: dog sniffs of vehicles during lawful traffic stops NOT a search; Sniff must occur during the time period when officer is doing things done during routine traffic stop (license, registration, etc.)

8. Open Fields

NOT a search; Permits search of all property beyond the curtilage, whether or not it is open, and whether or not it is a field (regardless of fences and no trespassing signs)

Oliver & Hester v. US: Cops found pot growing in field; Court found that an open field falls outside 4th for 2 independent reasons – (1) not a “person, paper, house, or effect” (2) person doesn’t have reasonable expectation of privacy regarding activities in open fields

9. Curtilage

IS a search (unlike open fields); “the land immediately surround and associated with the home”; Porches, decks, etc. are curtilage as long as structure isn’t shared with other homeowners and is restricted from public access

Intrusion of curtilage IS a search if the citizen manifests an expectation of privacy

Dunn v. US: determining what is curtilage resolved by reference to 4 factors:(1) Proximity of area to home(2) Whether area is included within an enclosure surrounding home(3) Nature of uses to which the area is put(4) Steps taken by resident to protect the area from observation by passerby

Energetic Officer—As long as member of public can do it, it is NOT a search. Does the officer have a lawful right to be there?

Aerial Surveillance Curtilage—If it’s not illegal for public to do it, it’s not illegal for police to do it.

However…Dow Chemical v. US: Area surrounding commercial building is not curtilage, so doesn’t get same 4th Amendment protection (more of an open field); NO search

10. Luggage

No “plain squeeze” … Bond v. US: Physical manipulation of bag WAS a search; reasonable expectation that luggage will not be handled in such a manner; mashing and moving around is more than mere touch.

C. What is a SEIZURE?

1. PropertyUS v. Karo: seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property; no seizure when cops put beeper on ether can.

3 categories of seizable items are: (1) contraband (evidence that may not be lawfully possessed by a private party) (2) fruits of crime; and (3) instrumentalities used in commission of an offense.

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2. PersonsOccurs when an officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen. A reasonable person would have believed he was not free to leave.

III. SUBSTANCE OF FOURTH AMENDMENT

A. PROBABLE CAUSE (PC)

Questions as to PC arise: (1) when applying for a warrant (anticipatory & conditioned), and (2) at trial during suppression hearings (when arrest/search/seizure was affected without a warrant)

Standard of proof that justifies search or seizure; Search or seizure is presumptively unreasonable unless supported by PC and warrant; Cops need not be correct in their assessment of facts … only “fair probability” needed; Look to all pertinent factors – Totality of Circumstances; Where evidence could be in 1 of several places, there is PC to search each

Burden - Once warrant issued, then burden is on D to challenge validity of PC. Government has burden of showing search/seizure without a warrant was based on PC. Could the officer have gotten a warrant?

1. PC to Search

Exists when there is certain likelihood that: (1) something that is properly subject to search/seizure by government (2) is presently (3) in a specific place to be searched.

Aguilar/Spinelli Test: (no longer dispositive after Gates, but still relevant)(1) Person providing info must be reliable and credible

Factors – motives; previous info from informant; relationship to suspect; cops presumed reliable.

(2) Information itself must be reliableFactors – whether informant has personal knowledge; specificity of info; underlying facts/content.

Gates/TOC TestOverruled Aguilar-Spinelli creating new test – enough particularized facts to lead a common sense person of reasonable caution to believe that there is a fair probability of criminal activity (allows for police corroboration of otherwise insufficient hearsay info)

2. PC to Arrest

Exists when there is certain likelihood that: (1) that particular individual (2) has committed or is committing a particular offense.

Maryland v. Pringle: cops pulled over car with 3 men; driver consented to search and cops found drugs and money; once drugs/money found and no one confessed, cops had PC to arrest all 3; Holding … PC = (1) reasonable ground for belief of guilt, and (2) that the belief of guilt must be particularized with respect to each person to be searched or seized.

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3. Random Other Notes

Confidential Informants: Cops NOT required to disclose informant’s identity

“Oath or Affirmation” Requirement: A defendant may challenge the truthfulness of statements made under oath in an affidavit supporting a warrant under limited circumstances; Must show the affiant knowingly made false statement or with reckless disregard for truth; After suppression, judge does harmless error analysis

Anticipatory Warrants: Magistrate must determine (1) that there is PC now that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.

“Sneak and Peek”: Getting a warrant to go in and look around, take pics, etc. – not remove any evidence from scene; Leave everything as undisturbed as you can

Subjective Standard - Officer’s state of mind is irrelevant except for the facts he knows.

Staleness – can lose PC; fact specific

B. Arrest Warrants

US v. Watson: An arrest warrant is NOT required to make a felony arrest in a public place. (but MUST have PC)

Misdemeanor—must have warrant unless committed in front of officer.

After warrantless arrest … (1) must have judicial determination affirming officer’s PC in order to continue detention of that person (2) must occur within 48 hours of arrest, absent bona fide emergency or exigent circumstance. Gerstein v. US

1. Use of Force

Even an arrest based on PC becomes unreasonable if—police use unreasonable force in executing the arrest; officer may NOT use deadly force to prevent escape of fleeing felon unless he has PC to believe the suspect poses a threat of serious physical harm to officer or others and if, where feasible, warning has been given.

2. Private Residence

Payton v. NY: cops suspected D of murder; went in house w/ out a warrant; Holding – absent exigent circumstances or consent, a private residence may NOT reasonably be entered without (1) an arrest warrant to enter AND (2) reasonable belief that person is present.

Exigent Circumstances: a warrantless intrusion of a home MAY be justified by (1) Hot pursuit (2) Imminent destruction of evidence (3) Need to prevent suspect’s escape (4) Risk of harm to police or others (also consider gravity of crime and likelihood suspect is harmed)

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3. Third Party’s Homes

Need BOTH arrest & search warrant!Steagald v. US: cops had arrest warrant for suspect believed to be in D’s home; no suspect, but found D’s coke; Holding – absent exigent circumstances, an arrest warrant for another person is not sufficient to affect a search of 3rd parties’ home – need search warrant also

4. Must “Knock and Announce” (see below)

C. Search Warrants

Elements of valid search warrant: (ALSO elements of valid Arrest Warrant)(1) Based on PC (supported by oath or affirmation)(2) Must particularly describe place to be searched or persons/things to be seized; and(3) Authorized by detached and neutral magistrate

Neutral & Detached Magistrate--Lo-Ji Sales v. N : porno shop judge case; search warrant NOT valid b/c only 2 or 800 items described therein and judge actually took part in investigation – neither neutral nor detached.

Also…No payment or commission on warrants; AG or other law officer can’t issue warrants.

1. Execution of Search Warrant

“Knock and Announce” Rule – police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry; 4th Amendment contains an implicit Knock and Announce Rule, unless exigent circumstances (also applies to Arrest Warrants)

Exceptions …Case-by-case basis … In order to justify a “no knock” entry, police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

2. In Anticipation of a Warrant

If cops have PC, but no warrant or exigency justifying a warrantless search, they may temporarily seize to obtain one.

Look to TOC – PC; danger of destruction of evidence; reasonable efforts by officers to balance privacy with officer’s needs; reasonable time limit

3. Scope of Search

CAN search containers large enough to hold the item authorized to search for

May seize object not described in warrant if PC to believe siezable (contraband)

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Individuals at the Scene:Ybarra v. Illinois: must have independent PC/exigent circumstance to search individual at the scene …

… BUT, search warrant does carry limited authority to detain occupants of premises while proper search is conducted…

… AND this limited authority gives cops ability to use reasonable force to detain such occupants.

D. Warrantless Searches

1. Exigent Circumstances

Police do NOT need a warrant if exigent circumstances exist. However … STILL NEED PC.If cops had PC and prior opportunity to get warrant before exigency arose, then exigency no excuse.For entry into home to be reasonable the police MUST have PC & Exigent Circumstances

a. Hot PursuitWarden v. Hayden: cab driver followed armed robber home; cops K&A’d and got consent; found man and clothes that matched description; warrantless search OK b/c cops in hot pursuit – immediate/continuous pursuit of suspect from scene of crime into dwelling.

Welsh v. Wisconsin: hot pursuit of drink driver not ok; an important factor to be considered is gravity of underlying offense; if a minor crime, government’s interest generally outweighed by individual’s privacy right.

b. Emergency Doctrine

If cops have objectively reasonable basis for believing they need to assist people who are seriously injured or threatened w/ serious injury, warrantless entry allowed.

2. Searches Incident to Arrest (SIA)

As long as arrest is valid (based on PC) and custodial, a search of the person incident to that arrest is also valid – don’t need independent PC to search.

Rationales: (1) protect officers (2) preserve evidence

Chimel v. CA: (immediate control) - cops had arrest warrant for D and searched his entire house w/out warrant; NOT OK. Holding – when an arrest is made, it is reasonable for the arresting officer to search the area “within his immediate control”

(wingspan/grab area – area from within he might grab weapon or destroy evidence)

Maryland v. Buie (protective sweep): Officers can look in closets or other spaces immediately adjoining place of arrest from which an attack could be immediately launched.

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US v. Robinson: Cops pulled D over and arrested him w/ PC. Cops searched D and found cig package in his pocket w/ heroine in it. In case of lawful custodial arrest a full search of the person (and containers on the person – cig pack in pocket) is not only an exception to the warrant requirement, but is also a reasonable search under the 4th.

(No need for an assessment of danger or anything else by cops, arrest itself is justification)

Inventory SearchesIllinois v. Lafeyette: Any arrestee typically undergoes a 2nd search (arrest inventory) if he will be incarcerated, even temporarily, pending appearance before a magistrate; Occurs w/out a warrant and in absence of PC

Arrests of Automobile Occupants

NY v. Belton: speeding car pulled no one owned; cops sees envelope; arrests 4 men; searched jacket in back seat and found drugs; Holding – when an officer had made a lawful custodial arrest of the occupant (or recent occupants) of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment and any containers in that car.

(includes jackets, luggage, glove compartments, but NOT TRUNK)(anything accessible from interior of car)

Thornton v. US: guy got out of car before police stopped him, admitted he had drugs; cops searched car and found gun; Holding – Belton applies even when an officer doesn’t make contact until the person arrested has left the vehicle.

Knowles v. Iowa: cop pulled D for speeding; gave citation then searched car and found drugs; NO “search incident to citation”

Minor Offenses—Atwate v. City of Lago Vista: if state allows custodial arrest for the offense (no matter how MINOR offense, i.e., seatbelt) and officer affects valid custodial arrest … they can lawfully SIVA.

Pretextual Stops – Whren v. US – stop made of suspicious vehicle; pulled for speeding and found crack; Holding – subjective intent of officer is irrelevant where conduct is legally justifiable. Officer’s conduct is measured by the “reasonable well-trained officer” (regardless of motives)

3. Cars & Containers

a. Automobile Exception

Carroll v. US: when police have PC to believe car has contraband they can search ANY part of car that could reasonably hold contraband (including containers)

Auto Exception vs. SIVA: Auto exception depends on having full PC for the car (lessened expectation of privacy); SIA depends on lawfulness of underlying arrest of the person

Where Auto Exception is Superior to SIVA – (1) No arrest or arrest not made in or near car (2) Search of car too removed from arrest and can’t be deemed incident thereto (3) Where police want to search trunk (or somewhere other than passenger compartment)

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Rationale … mobility, highly regulated, less expectation of privacy.(Coolidge v. NH)…can’t hold car indefinitely. Either warrantless search must occur immediately (as soon as at station if PC) or car must be seized & held until warrant is obtained.

CA v. Carney (mobile home): drugs for love; Holding – automobile exception applies to mobile homes as well for same policy/rationale reasons

b. Automobile Inventory

Basics … (1) vehicle must be lawfully in police custody (2) can search without suspicion and without warrant (3) regulations must exist that control discretion.

SD v. Opperman: car impounded for traffic tix, drugs found; so long as officers performing standard procedure and don’t go outside scope of their own procedure, their actions need only be reasonable.

c. Containers

US v. Chadwick: cops saw D put footlocker in car and dog alerted drugs; D arrested; hour and half later cops searched footlocker; Holding – unreasonable; expectation of privacy; Can’t argue SIVA b/c of time; police may seize containers if have PC to believe container holds evidence of criminal activity, but must generally obtain a warrant before searching them, unless exigent circumstances are present.

d. Containers in Cars

US v. Ross: cops had full PC to believe contraband was in car (not in specific container in car); however, Court held that full PC to search vehicle also provides full PC to search all containers therein; if probable cause justifies a vehicle search, then EVERY part of the vehicle is open to inspection (including trunk).

CA v. Acevedo: cops saw D coming out of drug dealer’s house w/brown paper bag; stopped him, got bag out of trunk and found pot; One rule to govern all automobile searches – the police may search an automobile and the containers within it where they have PC to believe contraband or evidence is contained.

Wyoming v. Houghton: cops had PC to believe drugs were in car, searched passenger’s purse; Police officers w/ PC to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search; passengers possess reduced expectation of privacy in cars

4. Plain View

Allows warrantless seizures if: (Requirements)(1) Initial intrusion must be valid under 4th (2) Officer’s access to the item must be lawful(3) Incriminating nature of object is immediately apparent.

….However, if police don’t have PC to believe that object in plain view is contraband w/ out conducting some further search (i.e., if its incriminating character isn’t immediately apparent) the plain view doctrine can’t justify seizure.

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Horton v. CA: cops got search warrant for stolen jewelry but found guns instead; evidence in plain view does NOT have to be found inadvertently.

AZ v. Hicks: cops searched D’s apt. in response to shooting; saw stereo equipment and moved it to check serial numbers; NO PC to search stereos, so moving it was a search; the incriminating nature of the object MUST be IMMEDIATELY apparent w/out further search.

Plain Touch Doctrine – Minn. V. Dickerson – PV applies to plain touch – during pat down, cop felt pill; Court upheld plain touch but found it inapplicable here b/c it wasn’t immediately apparent pills were illegal; If officer lawfully pats down suspect and feels object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy

5. Consent

Was it valid? … Freely and voluntarily given? No PC or RS required for consent search

Burden – on party trying to prove that consent was freely and voluntarily given. Can NOT be product of duress or coercion.

Schneckloth v. Bustamonte: D stopped for traffic violation; cops found passenger’s 3 stolen checks under seat after driver consented to search; TEST for valid consent – Totality of Circumstances; no requirement that officers inform D of right to refuse (is a relevant factor though)

TOC Voluntariness Factors – custody; voluntariness of custodial status; use/presence of coercive police procedures; extent and level of D’s cooperation with police; D’s awareness of right to refuse consent; D’s education and intelligence; D’s belief that no incriminating evidence will be found; request or demand?; whether the evidence was well hidden.

Reliance on Warrant - Bumper v. NC - woman consented to search b/c officers showed her a fake warrant; consent obtained based on assertions that cop has warrant or not “freely and voluntarily given” and are thus invalid; baseless threats to get warrant invalidate consent, unless cops actually have PC.

Scope

Even if a person voluntarily consents to search, she can set limits of temporal nature (you can search for 2 minutes) or limit scope of search (you can search my kitchen, but not bedroom); A consent search is invalid, even if consent was voluntary, if police exceed the scope of consent granted.

Withdrawal of Consent

Can also withdraw consent after its granted.; Police must honor citizen’s wishes, unless their pre-withdrawal search gives them independent grounds to proceed

Third Party Consent

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GA v. Randolph: wife gave cops consent to search home, husband refused; cops found drugs; a physically present co-occupant’s stated refusal to permit entry prevails over the other co-occupant’s consent.

Matlock: 3rd party consent OK if person has “common authority” over property to be searched.

Illinois v. Rodriguez: victim was beaten; gave cops consent to enter D’s apt and used her key to let them in; cops found and seized drugs; later found out that victim no longer lived there so didn’t have authority to consent; victim did not have “common authority” to consent (mutual use, joint access/control); however … search OK b/c given the facts, police were reasonable in believing her.

(4th Amendment does NOT require cops be correct … just reasonable)

Marital Relationships – presumption of common authority over premises

Parent/Child – minor children have no rights to privacy against parents; once age of majority, may have privacy interests (i.e., if closet is always locked and parents never allowed in); paying rent may be a factor

E. Reasonableness Clause

Categories of Police-Citizen Contacts:1) Arrest and SIA—Probable Cause

a. Need full PC for arrest; arrest allows a SIA for officer/evidence protection2) Stop and Frisk—Reasonable Suspicion

a. Stop is permitted w/ only reasonable suspicion; then frisk is allowed only to search for weapons (not evidence)

3) Encountera. No intrusion b/c no seizure…no standard of proof

1. Terry Doctrine (“stop and frisk”) (“reasonable suspicion”)

Terry v. Ohio—cop was suspicious of 3 men who looked like were “casing”, stopped them and identified himself, thought they were armed and dangerous so frisked them and found weapon.

Rule—a stop can be conducted if an officer has “reasonable suspicion” to believe that a crime is afoot…then…an officer who makes an illegal stop can conduct a “protective frisk” of a suspect if the officer has reasonable suspicion to fear that the suspect is armed and dangerous.

“Reasonable Suspicion”—(objective standard)—whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety and that of others was in danger. Must be based on “specific and articulable facts” and not merely on officer’s hunch. Case-by-case analysis.

Unparticularized suspicion/hunch is NOT enough—being generally “nervous” not enough. Be able to articulate specific behaviors (won’t look cop in eye, ringing hands, etc.)

Rationale—individual interest at stake in stop and frisk is less serious than that involved when suspect is arrested and/or when a full scale search is conducted. Brevity is the big distinction.

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BASIC OUTLINE:1) Seizure or Encounter?

a. Encounter—government wins; no reason neededb. Seizure—go to next step

2) Seizure?a. Investigative detention—need RSb. Arrest (i.e. full custodial arrest)—need full PC

a. Terry Stop vs. De Facto Arrests

Dunaway v. NY—cops got a murder tip but not enough for warrant, cops picked up D, brought him to station, and interrogated until confession; Holding—a seizure and transport of a suspect against his will is sufficiently intrusive to require PC that the suspect has a committed a crime

b. Seizure vs. Non-Seizure Encounters

If officer doesn’t have RS that citizen is involved in crime, he can’t “stop” citizen, so it’s important to delineate “stops” from “encounters”…..

US v. Mendenhall—D got off plane and cops stopped her and asked for ID and ticket; D then consented to going to DEA office and to search of person/bags; a person is seized w/in meaning of 4 th only when, in light of circumstances, a reasonable person would believe he was not free to leave.

In a public place, police can stop you and ask you anything a private person could.

If an officer does not have RS that a citizen is involved in a crime, he cannot stop the citizen b/c the stop requires justification. However, an officer can encounter a citizen for any reason or no reason.

Mendenhall Factors (not an exhaustive list)1) Physical Obstruction—if officers block movement or attempt to touch/grab suspect. Even a

gentle touching can convert situation into a “stop”2) Show of Force—drawing guns, tone of voice, showing badge, etc.3) Retain ID, Ticket, Etc.—longer officer retains stuff, more he will have to justify4) Brevity5) Police Requests to Search, Move, Etc.6) Informing Citizen of Right to Refuse7) Coercive Surroundings

Active Coercion Prohibited—an officer who affirmatively employs coercive tactics will be held to have conducted a stop/seizure, requiring at least RS; an officer who behaves politely where citizens merely respond will be held to have had an encounter

Modifications of Mendenhal’s “Reasonable Person” Test

Two Modifications:1) Not Free to Leave b/c of Suspect’s Own Circumstances

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a. Where citizen is confined b/c of his own circumstances (i.e., bus, subway)… whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

b. Cops not required to advise bus passengers of right to refuse consent2) If Coercive Tactics are Non-Physical, There is No Stop Until the Suspect Submits

a. CA v. Hodari—cop saw D and D fled; D threw out crack rock during chase; cop tackled and arrested him; Issue—whether at time D dropped drugs, D had been “seized” w/in meaning of 4th Amendment? (NO); an arrest requires either physical force or submission to assertion of authority; since D didn’t comply with cop’s show of authority, he was not seized until he was tackled … thus, the cocaine he threw out was abandoned property and not fruit of seizure.

b. Cops are NOT obligated to use the least intrusive means available to verify or dispel their suspicions.

Two Types of Seizures:a) Physical Touch—a “stop” automatically occurs when officer physically touches a suspect w/

intent of restraining him.b) Non-Physical Show of Authority—not a stop until suspect submits to show of authority; as

long as running, no seizure.

How Long is Too Long?—US v. Sharpe—NO absolute time limit; if stop continues, at some point it becomes an arrest; TEST: whether the police diligently pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D

During a routine traffic stop an officer may check: (a) license (b) registration (c) tag (d) insurance (e) outstanding warrant (f) prepare citation

c. “Reasonable Suspicion”

Nature of analysis is similar to PC:1) Common sense to facts presented

a. Nervousness of suspect; inferences/specifics from facts; high crime area2) Deference to expertise of cops3) TOC (Aguilar-Spinelli factors relevant here)4) Reasonable mistakes of fact do NOT preclude finding of PC or RS

What is “Reasonable Suspicion”?—less demanding than PC; less than a “fair probability”, more like a “fair possibility”

Florida v. JL—cop got anonymous tip that guy had gun; went up to guy and saw no gun or unusual activity; cop frisked him and found gun; Holding—anonymous tip alone not enough

IL v. Wardlow—when D saw cops, he ran; cops caught him and frisked him, found gun; Rule—unprovoked flight from police in a “high crime area” is sufficient to support a finding of RS and to justify a police officer’s further investigation

d. Extending Terry Doctrine

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Protective Sweep (Home/Business)—Maryland v. Buie—cops went in D’s house w/ a warrant and arrested him; cops checked basement for accomplices and found evidence; Rule—after an arrest is made in a residence, a search of the house for accomplices requires articulable facts warranting a belief that the presence of an accomplice is likely (however, protective sweep still OK)

Protective Sweep (Car)—Michigan v. Long—cops saw car go into ditch; saw knife on floor of car; D was frisked and cop searched car, found MJ; Holding—police may in context of traffic matter conduct protective search of a car if they have RS that suspect is dangerous or may have access to weapon.

e. The Frisk

Legality of Frisk: 1) whether stop was justified, and2) whether there is RS to believe that the suspect is armed and dangerous

Factors—RS for crime of violence; large scale drug distribution; bulge; sudden movement by suspect (as if grabbing gun); previous violent activity known by cop; aggressive/violent behavior; large number of suspects compared to number of officers; nature of surroundings; time of day

Scope—no more intrusive than necessary to look for weapons

PC—if cop feels soft package, cannot be taken out and inspected under Terry, but may (with more factors) give cop PC to arrest and then SIA.

Containers—if officer reasonably takes object off person that turns out to be container, generally officer may open if it could contain a weapon.

Grab Area—CAN conduct protective searches of containers carried by suspect OR w/ in suspect’s grab area if reasonable risk it might contain a weapon.

Cars—(protective sweep)—cursory inspections of accessible areas of passenger compartment of car OK where reasonable suspicion that suspect poses threat of harm.

Protective Sweep—OK where officers have articulable facts that give rise to RS that a search is necessary to protect officers or others.

IV. REMEDIES

A. Standing

When D invokes ER on ground that evidence was obtained in violation of 4th, question is whether D is a proper party to assert illegality and obtain exclusion …

Rights are Personal—ER does NOT apply if D claims he was prejudiced “only thru the use of evidence gathered as a consequence of a search/seizure directed at someone else”; D’s OWN PERSONAL RIGHTS must have been violated

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Rakas v. Illinois—D was passenger in car and sought to suppress evidence found therein; Rule—since a car passenger has no legitimate expectation of privacy as to the car, he cannot object to a search of the car or the introduction of evidence thereby obtained.

Two Prong Test for Standing (identical to Katz)1) Person challenging search must demonstrate a legitimate expectation of privacy in the

place searched or the possessory interest in the thing seized (D bears burden)2) Also must demonstrate that this subjective expectation is one that society accepts as

reasonable

“Bailment” … STANDING—US v. Alberts—D had standing where stored belongings in closed containers of another; US v. Most—D had standing to object to bag checked w/ a store clerk

Overnight Guests—MN v. Olson—police had PC to enter home and found D; Holding—overnight gues in a home HAS STANDING to object to his own warrantless arrest; status as overnight guest enough to show expectation of privacy.

Business Guests—MN v. Carter—cops saw D thru window of apt. packaging drugs; an overnight guest in a home may claim the protection of the 4th Amendment, but one who is merely present with the consent of the householder may not; NO STANDING

Co-Conspirator Standing—US v. Padilla—NO STANDING simply b/c D is a member of a conspiracy that owns the property searched and seized.

B. Exclusionary Rule

Defined—evidence collected/obtained in violation of the Constitution is inadmissible in court.

Basis to Exclude Even if there is a Warrant:1) If material in affidavit was false or prepared in reckless disregard of truth2) Judge/magistrate wholly abandoned neutral and detached role3) No good faith where affidavit is “so lacking in indicia of PC as to render official belief in it’s

existence entirely unreasonable”4) “so facially deficient”—particularity, place, things to be seized

1. Knock and Announce

Hudson v. Michigan—ER NOT applied to failure to “knock and announce”

2. Fruit of Poisonous Tree Doctrine (FOPT)

Defined—evidence which is spawned by or directly derived from an illegal search or illegal interrogation is generally inadmissible against the D b/c of its original taint, although knowledge of facts gained independently of the original and tainted search is admissible.

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Tainted Evidence—Silverthorne Lumber v. US—knowledge gained by the federal government in violation of the 4th cannot be used directly or indirectly as evidence in its case; ER applies not only to evidence originally seized, but to ALL evidence derived from the evidence illegally obtained…the “derived” evidence is “tainted”

Verbal Statements—Wong v .US—statements made by D directly as result of lawless police conduct are inadmissible against D

a. Exceptions Exceptions to FOPT:

1) Insufficient nexus b/t illegal conduct of cops and evidence in question, OR2) Suppression in court will not effectively serve the goals ER was designed to guard against

b. Attenuation

Defined—when link b/t illegal search/seizure and evidence is so attenuated that it can no longer be considered tainted or the fruit of the poisonous tree.

Test—whether under TOC, the evidence has been obtained by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Wong Sun v. US—cops broke into D’s apt w/out PC or warrant; D told cops about dealer; Rule: statements made by D directly as the result of lawless police conduct are inadmissible against the D attenuate

Factors:a) Impact of Illegality on D

a. Greater impact on D, more likely that subsequently discovered evidence will be tainted

b. Ex: surprise and upset to D; influence of misconduct on Db) Intervening circumstances

a. Such circumstances are relevant in determining whether the chain of causation has been broken

b. Ex: Mirandas; change of location; acts by 3rd partiesc) Temporal proximity

a. Time b/t conduct and discovery of evidenceb. Shorter time, more likely it is that evidence will be taintedc. If illegality is continuing at time evidence is discovered, court will likely find

evidence to be FOPTd) Purpose and flagrancy of conduct

a. Serious misconduct by prosecution/policeb. More serious conduct, more likely it will taint subsequent evidencec. Rationale: Applying ER to derivative evidence should deter police misconduct

Witnesses—US v. Ceccolini—illegal search and seizure can lead police to disvovery of witnesses who can give testimony against D; but, witness’s voluntary decision to testify generally purges any taint from illegal search/seizure (NOT a per se rule but usually true)

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Photos/ID’s—US v. Crews—D arrested w/out PC, brought to HQ and photoed; V then picked out D’s picture in a photo array and D was re-arrested; photo and ID NOT fruit of poisonous tree; an in-court identification should never be excluded as the fruit of an illegal arrest; thus, a person brought to trial following an illegal arrest can be identified, so long as the identification itself is not tainted by impermissible police suggestiveness.

Independent Source—Murray v. US—cops illegally entered D’s premises; during illegal search, cops saw incriminating evidence; they left it and went and got a warrant that didn’t contain illegally obtained info; Rule—evidence will NOT be excluded under ER when govt. can show it was derived from an independent legal source; fruits of illegality admitted if also found by legal means unrelated to original illegal conduct.

Inevitable/Ultimate Discovery—Nix v. Williams—D arrested for murder; cops illegally got confession from D that led them to body; at same time, a large search party was canvassing area where body was found; Holding—govt. must prove by preponderance that evidence would have been inevitably discovered by legal means…focus on what police WOULD have done, not COULD have done (legal means muse derive from facts independent of illegal search/seizure)

Impeachment—illegally obtained evidence can be used for impeachment of D (not of his witnesses)

c. Good Faith Exception

Where an officer, acting in objective good faith, has obtained a search warrant from a judge/magistrate that is ultimately found to be unsupported by PC, any evidence obtained from search/seizure may be used by Govt. (despite fact it was illegally obtained) … b/c error was made by magistrate and ER is designed to deter police conduct.

Exceptions:1) Misleading information

a. Where error in warrant is wrong b/c officer2) Abandonment of judicial role

a. Where officer knew or had reason to know of judge violating neutral and detached requirement

3) Affidavit clearly insufficient to establish PCa. Officer can’t reasonably rely on it

4) Facially deficient warranta. Officer can’t reasonably rely on it

V. PRIVILEDGE AGAINST SELF-INCRIMINATION

Generally—5th Amendment’s privilege against compelled self-incrimination prohibits the government from compelling individuals to provide incriminating testimony in any proceeding if their answers might incriminate them in an ongoing or future criminal proceeding

Civil Proceedings—state may compel disclosure of information for use in civil or other non-criminal proceedings (unless there is a threat of real criminal prosecution)

Scope: (1) compulsion by state (2) witness against oneself (3) use in criminal case

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A. What is Compulsion? (the “cruel trilemma”)

Includes:1) Contempt power 2) Comment by prosecutor/judge on D’s failure to testify 3) Custodial interrogation (see Miranda)4) Threat of economic sanctions 5) Clemency hearing 6) Prison treatment programs

B. Who Holds the Privilege?

Privilege is Personal—belongs only to person who would be compelled to incriminate himself by his own testimony (Attorney’s can NOT claim for clients)

Business Entities—NO protection; however, people who work for entities can claim privilege

C. Information Protected by Privilege

Protects ONLY against compelled disclosure of TESTIMONIAL evidence.

Testimonial—when evidence contains and express or implied assertion of fact that can be either true or false

Physical Evidence—can be neither true or false; so, government CAN compel person to provide physical evidence (i.e., blood sample, fingerprints, handwriting sample, etc.); D’s refusal to supply physical evidence CAN be used against him at trial.

D. Procedural Aspects

Assertion of Privilege—person has right to refuse to answer; if does answer, privilege is lost regarding that answer and it can be used against him.

Immunity—government may compel testimony when witness has received immunity.

VI. SELF –INCRIMINATION AND CONFESSIONS

A. Confessions and Due Process

Confession MUST be “Voluntary”—DP Clause prohibits admission of a confession if given involuntarily (confessions obtained by physical force or psychological coercion)

“Voluntariness” Determined by TOC…Look to 3 Factors:1) Actions of police

a. D held incommunicado; no friends or attorneys allowed; beating; prolonged questioning; tricks; repeated questioning; coercion

b. Misrepresentation of Fact—usually insufficient to render confession involuntary (i.e. D’s fingerprints at scene)

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c. Credible threat of physical violence = coerciond. Coercion can be established when govt. agent offers protection from violence in

exchange for confessione. MUST have Active Coercion —Some police coercions are required to render confession

involuntary (D’s own psychotic hallucinations or paranoia causing confession will still be voluntary)

2) Personality of Da. Education; mental functioning; demeanor; intelligence; experience; what does D assert?

3) Circumstances surrounding the confession

Examples of Involuntary Confessions—36 hours of continuous questioning; left naked in cell; cops told D a mob outside jail would get him; false friend technique/long interrogation/no lawyer; long interrogation of suspect in hospital; repeated interrogations of suspect over 16 day period

B. Confessions & 5th Amendment (Miranda)

Miranda v. AZ—compilation of several cases where D’s appealed their confessions claiming their confessions were elicited thru violation of constitutional rights b/c none were given warnings of their rights; Rule—confession made during custodial interrogation is inadmissible unless the suspect receives 4 warnings describing his rights, and then gives a “knowingly, intelligent, and voluntary” waiver of these rights.

Miranda Warnings: (1) right to remain silent (2) whatever you say can and will be used against you in court (3) have a right to an attorney and to have one w/ you during questioning (4) if you cannot afford a lawyer one will be appointed to you [may stop questioning at anytime]

A confession violating the Miranda requirement is “compelled self-incrimination” and automatically inadmissible (note that such confession may still be considered “voluntary”, but it violates 5th b/c it is “compelled”)

When is Miranda Required? (2 Requirements)1) Custody—formal arrest or “restraint on freedom of movement of the degree of associated with

arrest”2) Interrogation—questioning initiated by officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way

Honoring Suspect’s Rights1) Right to Silence—can invoke right to silence in any manner, at any time prior to or during

questioning; when invoked, cops must cease interrogation2) Right to Counsel—when D says wants an attorney, interrogation must cease until attorney is

present; when attorney arrives, D must have an opportunity to confer w/ counsel and have counsel present during any subsequent interrogation

Public Safety Exception—NY v. Quarles—D was arrested in supermarket; before arrest, cop saw that D had empty holster and asked where the gun was and D told him; Holding—under circumstances, officer acted reasonably for concern about public safety; gun and D’s statement were admissible.

C. Waiver

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Waiver of Miranda Rights—government has high burden of proving that suspect “voluntarily, knowingly, and intelligently” waived rights to silence and counsel; evidence in record that suspect understandingly rejected the offer; can be explicitly or implicitly

“Voluntary, knowing, and intelligent” Waiver—(1) must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception (2) waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it….no waiver is knowing and intelligent in the absence of Miranda warnings.

Evidence that Negates Waiver—lengthy interrogation; incommunicado interrogation; any evidence that D was threatened, tricked, or cajoled into a waiver

Conditional Waiver—good as long as police comply with condition.

Juvenile’s Waiver--look to TOC: age, experience, background, presence of parents, and intelligence

Proof—express statement by suspect that he is willing to talk and does not want a lawyer; NOT presumed from suspect’s silence nor from fact that confession was eventually obtained.

D. Exclusion

Oregon v. Elstad—Holding—failure to give Mirandas does not lead to same consequences a infringement of constitutional right (FOPT); where no deliberately coercive or improper tactics accompanied the initial Miranda violation, a subsequent proper administration of the warnings will cure the first violation

NOT like situation where confession was actually involuntary (b/c of police tactics) and obtained against D’s free will……here, FOPT is applicable.

Missouri v. Seibert—D was questioned for 40 minutes w/out Mirandas; after confession cops gave D Mirandas and got waiver; D was confronted w/ pre-warning confession and confessed again; Holding—police strategy deliberately designed to elicit confession, provide Miranda, then elicit another confession thwarted protections of Miranda and rendered post-Miranda confession inadmissible.

Physical Evidence as Fruit of Miranda Violation Admissible—evidence derivatively seized is NOT excluded (no FOPT doctrine)…however, FOPT applicable if statements are actually involuntary (case where D told cops where gun was)

E. Custody

Factors:1) Purpose of police investigation 2) Place and length3) Suspect’s awareness of freedom to leave4) Suspect’ actual freedom from restraint5) Source of initiation of the contact w/ suspect6) Use of coercive strategies by police

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7) Is setting like police dominated atmosphere of stationhouse?8) Handcuffs? Placed in squad care? Guns drawn?

Test—whether a D is under arrest for 4th Amendment purposes. Custody is determined by whether there is a “formal arrest of restraint on freedom of movement of the degree associated with a formal arrest.

Terry Stops—NOT custody under 5th (stops/detentions vs. full custodial arrest) (i.e., traffic stops)

Or v. Mathiason—even police questioning designed to produce incriminating statements isn’t necessarily “custodial interrogation”; coercive environment alone not enough to trigger Miranda; all interviews by police have some coercive aspects and police do NOT have to Mirandize everyone they question.

Brown v. Ill—Miranda NOT a cure all for illegal arrest; can’t save confession after illegal arrest with Miranda (FOPT) (i.e., illegal arrest, Miranda, then confession-confession inadmissible)

Prisoners—Garcia v. Singletary—prisoner’s incriminating statement admissible as guard’s question would not have let prisoner to believe his freedom would have been further restricted; Test—whether the inmate was subjected to more than usual restraint on a prisoner’s liberty

F. Interrogation

Miranda comes into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

Interrogation Defined: (1) Express Questioning, OR (2) Any words or action on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the [average] aspect (focus is on perceptions of suspect, NOT intent of police)

Edwards v. AZ—cops offered to play for D a tape recording of suspect’s confession; after it was played, D confessed; Holding—confronting a person w/ incriminating evidence is likely to elicit a response from average suspect—interrogation.

Intent of Officer Relevant—intent of officers to obtain incriminating info is important factor.

Peculiar Susceptibility—if officers know of D’s peculiar susceptibility, exploitation of that weakness is interrogation.

NOT Interrogations—routine booking questions; police procedures

Undercover Informants—Illinois v. Perkins—2 informants posed as inmates to uncover D’s involvement in murder; D was in jail on charges unrelated; D confessed; Holding—court upheld use of unwarned confession. Miranda NOT required where suspect does not know he is speaking to police as there is no coercive atmosphere.

G. Invocation of Miranda Rights

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RTC must be clearly and unambiguously invoked. Must speak with sufficient clarity that a reasonable police officer would understand it to be a request for counsel.

H. Re-Interrogation

State must show: (1) that D’s rights were given the proper respect, and (2) that no police pressure was responsible for D’s change of heart.

When police claim that suspect waives his RTC after invocation, that suspect changes his mind—additional safeguards beyond new Mirandas are necessary…Thus, police can NOT re-interrogate UNLESS suspect “initiates further communication, exchanges, or conversations w/ police”

“Initiate”—D’s request for polygraph is initiation; D’s desire for generalized discussion about crime

I. Impeachment

Prosecution can NOT use confession w/out warnings as proof of guilt…but CAN use to impeach.

NY v. Harris—D w/out warnings confessed to selling heroine; in court, D testified that he sold baking powder, not heroine; Holding—government could use confession in cross examination b/c D’s trial testimony was inconsistent w/ unmirandized statement…right to testify does not include right to commit perjury.

J. 5th vs. 6th Amendment Right to Counsel

Miranda—procedural safeguard; doesn’t come into play unless suspect invokes the right

6th Amendment—applies automatically when D is indicted; prohibits cops/agents from deliberately eliciting incriminating statements from suspects in absence of counsel after initiation of proceedings; offense specific.

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Outline

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