User:CheshireKatz/Crimpro

REVIEW

Search & Seizure

Is It A (Katz) Search?
NO	Rationale	YES	Rationale
Outside of Packages, Pen Registers, Dog Sniff (US v. Place), & Trash/Abandoned Property Greenwood	No RXoP when left out/made readily available to 3rd parties	Insides of Packages, Wiretaps, & Luggage Squeezes	RXoP in contents of mail, phone calls, & baggages
Shadowing, Overflights, Public Highways Knotts, & Open Fields Oliver	No RXoP when traveling or otherwise outside area immediately surrounding home	New Technology (ie. thermal imaging Kyllo) to observe private residences	If not commonly used & not otherwise obtainable, then an intrusion into protected area
Beepers (tracking a motor vehicle) Knotts	Electro-monitoring is non-intrusive if info collectible by visual surveillance	Beepers (tracking inside private residence) Karo	Electro-monitoring is intrusive if tracking something w/i privacy of home

Threshhold Questions

1. Is there a subjective & objectively reasonable expectation of privacy in the items or area(s) searched or listened into?
   • False friend cases (misplaced trust)
   • Knowing expose of info to 3rd parties (eg. pin registers)
   • Impact of modern technology (beepers/planes/thermal imaging)
   • "Personal effects" (eg. luggage)
   • Rakas/Olson & their progeny (passengers in cars/social guests)

   If you find that the government conduct has violated an individual's reasonable expectation of privacy, move on to #2.

2. Was there an invasion of that privacy interest by the police or another state actor (including informants)? #: If not, no violation. If so, then move on to #3.
3. Did the police have a warrant? If so, test for validity:
   • First requirement: Probable Cause
   • Second requirement: Particularity

   If not valid, was there good faith? If not, move on to #4.

4. Is the warrantless search valid under any of the exceptions to the warrant requirement? ESCAPIST analysis

   If not, the evidence must be suppressed pursuant to exclusionary rule (XR), unless XR exception applies.

Focus on Massiah, then take a look at the Edwards cases as an exception.

Never need to invoke right to counsel, unless one particular circumstance.

14th Amend concerned with police coercion

If witness is sure & wants to testify with certainty, judges will not prevent them from doing so.

Entrapment

Affirmative defense with Burden of Persuasion (either Clr&Conv Evidence or BeyondReZ Doubt) on Defendant to demonstrate inducement by government (or agent of). Very hard to establish you're not predisposed, thus rarely successful in majority jurisdictions.

Tests hinge on impact of method as it affect's the person's predisposition

"ENTRAPMENT" → More than merely "affording the opportunity" to commit the crime, but actually creating the design & inducing someone to commit it, who would not otherwise be predisposed to do so.

"PREDISPOSED" → Person ready & willing to commit offense whenever opportunity is afforded

• Sherman v. U.S. MAJORITY TEST: Where government creates a criminal design, implants the predisposition to it in an innocent mind, & induces him to act, D is entitled to entrapment defense. Jury must decide D's predisposition absent the police's conduct.

  Concurrence: MINORITY TEST: Police conduct, not D's predisposition, should decide entrapment. Was conduct sufficiently improper to induce a non-predisposed person to commit a crime. Judge question.

• U.S. v. Russell
• Jacobson v. US - Where no evidence of D's criminal predisposition prior to government's initial contact, D is entitled to entrapment defense. Neither evidence of personal sexual inclinations or predisposition for something while it was lawful are sufficient to show predisposition to commit crime.

  Dissent (O'Connor) - Disputes timeline. Initial contacts were prelim investigation, not inducement. Requiring predisposition prior to police contact will unreasonably hinder law enforcement (ie. online sexual predator cases). Ultimately, D placed order, giving in to his predisposition, that should be enough.

• Problem 6-4 (pg 550) - Supreme Court overturned entrapment defense and due process violation, because "everyone knows you're supposed to turn it in"
• Problem 6-8 (pg 552) - 6 mos btwn email contact & visit. Is this Jacobson? Yes, 9th Circuit found entrapment, Justice Alex Kazinsky wrote majority.

Majority "subjective" test (aka "predisposition" or "Sherman-Sorrells" test) → Jury looks to criminality in Defendant's character & outrageousness in police conduct.

ENTRAPMENT where DEFENDANT had NO PREDISPOSITION to commit the offense, ABSENT the government's INDUCEMENT?

Minority "objective" test (aka "hypothetical person" or "Roberts-Frankfurter" test) → Judge looks to method of Police inducement.

ENTRAPMENT where METHOD had substantial RISK of INDUCING a NON-PREDISPOSED person to commit the offense?

In MAJ Test, courts weight the following factors in judging Defendant

• Defendant's character (including reluctance/eagerness to commit offense)
• Defendant's personal gain in committing offense
• Origin of criminal activity suggestion (government or defendant)
• Nature of the inducement by government

Police Conduct	Predisposed	Non-predisposed
Improper	Guilty (NG by min)	NG
Proper	Guilty	NG (G by min)
Outrageous	NG	NG

Intro: Most of the course is constitutionally-based. However, an exception is Entrapment, criminal law derived as a matter of congressional policy. All 50 states have recognized entrapment as an affirmative defense, either through statute or case law. It is the 7th affirmative defense (intoxication, self-defense, et al). Taught here b/c similar constitutional-like themes of due process.

• MAJ Question: Was this defendant predisposed to engage in the illegal conduct at issue, absent the government's inducement?
• MIN Question: Was the offense induced by methods creating a substantial risk that such an offense would be committed by persons other than those predisposed to commit it?

Intro

What is a Seizure?

• A person is “seized” when a reasonable person would believe that they couldn’t freely terminate the encounter. Look to police demeanor. Drayton

What is a Search?

• HISTORICALLY - A person is "searched" when their person or property has been trespassed upon (based on strict reading of 4thAm). Wire tapping is not a search, b/c no physical trespass. Olmstead
• TODAY - A person is "searched" when the state intrudes upon their perceived reasonable expectation of privacy (RXoP) and society finds that expectation reasonable. Wire tapping is a search, b/c RXoP invaded. Katz v. United States

What is Probable Cause?

• "Probable cause" exists where there is a fair probability that a search would uncover evidence of wrongdoing
  • Federal standard is less than a preponderance of evidence (< 50%), whereas some states (NY incl.) use a preponderance of evidence standard.

What is Reasonable Suspicion?

• Want more than a hunch. Give specified facts.

What is a Warrant?

Warrant Applications

The SPINELLI & GATES Standards → How certain must we be? Assuming all facts true & satisfactory BoK, still might not be sufficient for P/C. Even if it is, we then must discount for dubiousness.

• Gates (majority) standard → Totality of circumstances offers “substantial basis for concluding that probable cause existed”
• Spinelli (NY & minority) standard → Two prong test: 1) Basis of Knowledge & 2) Veracity
  1. BoK - Warrant application must present circumstances to support informer's conclusion (how was information obtained?)

     Observations by Officer → If sufficient, then presumed credible

     Highly detailed statements by informant → If not copiously verified (by self or cops in whole or part) (see Draper), then go to Veracity prong

  2. Veracity - Circumstances supporting informant's propensity for truthfulness or credibility/reliability on a particular occasion (past experience by cops with informant)

     Reliability varies based upon distinct source of information

     • Co-participant confessions needs no corroboration.
     • Consistent supplier of prior truthful information is almost always satisfactory.
     • Identified citizen informants are presumptively reliable.
     • Paid informants & anonymous tips are presumptively unreliable (anonymous have lowest veracity)

       Criteria increasing veracity: repeated over phone; face to face tip; caller ID; voice recording (JL v. Florida).

     Corroboration of innocent details can work, but see Leap of faith problem

     • Bad: Oak Tree Problem: A killed B under the oak tree. See, here’s the oak tree.
     • Better: facts not readily known, incl. future predictions about 3rd party behavior (Draper: PC where Δ gets off train as described w/ suitcase)

     Beware Staleness (US v. Harris) - Case-by-case reviews of maturity of information, nature of crime, habits of Δ, character of items, nature and function of premises searched.

• MD v. Pringle (2003) - PC to arrest all car occupants where search reveals cocaine in car. Failure to detain all means criminal & aiders go free, which is unacceptable.

Reasonableness of Seizure Measured Against Magnitude of Crime (Traffic Stop)

• Atwater v. City of Lago Vista - 4th Am protection from unreasonable seizure not violated by an arrest for misdemeanor driving w/o seatbelt, punishable only by fine. Officer's law-enforcement discretion in exercising their duties should not be infringed as the consequences of subsequent under-enforcement could easily outweigh the inconvenience to the number of defendants needlessly arrested.

  Dissent (O'Connor): Citing Whren, holds that the consequence of arrest (48 hours in custody) is inconsistent with the magnitude of the crime.

  • Whren v. US where the Court had held that, on balance, it was reasonable to allow the police to make a traffic stop whenever they spied a violation of the traffic laws, although a traffic stop was a seizure. But, because of the length of the typical traffic stop and the fact that most drivers are free to go after it is done, such a seizure was commensurate with the magnitude of the violation and sufficient to ensure that the offender would appear later in court if necessary.

Completeness of Warrant

• US v. Grubbs, 547 U.S. 90 (2006) - "Anticipatory" search warrants, issued in anticipation of "triggering conditions" making them executable, are constitutional under 4th Am, even where the triggering events (such as delivery of ordered contraband) are omitted from the issued warrant, so long as the conditions were satisfied.

Impact of falsehoods on warrants

• Officer applies for warrant based on info believed sufficient for PC. After it is granted, info comes to light negating PC. Can the warrant still be executed? Franks hearings are the answer.

  Franks v. Delaware (1978) Δ has limited right to attack truthfulness of statements made in a warrant. To prevail, Δ must prove affiant: (a) lied deliberately, or (b) acted with reckless disregard for truth;

• No Franks hearing unless alleged false statements:
  1. Shown false by an offer of proof (“what I will prove, if you let me”)
  2. Material to warrant (if set aside, there will not remain sufficient content in warrant to justify PC)
• Turbo the dog problem (pg. 139?)
• Maryland v. Garrison

Warrant Exceptions

Felony Arrests

• (Generally) Where a suspect is located in public, police need only "reasonable grounds" to believe a suspect has committed or is committing a felony to make a warrantless arrests of the suspect. US v. Watson
• (Private residences) Where a suspect is located in his private residence, police must obtain an arrest warrant and have a reasonable belief that the suspect is home before entering. Police may not enter a 3rd party's residence to arrest a suspect inside. Payton v. NY

Exigent Circumstances → Where immediate need to protect community and avoid danger to the police & others, police can enter to intercept threat. Warden v. Hayden

• Destruction of Evidence - Where immediate need to prevent evidence destruction while search warrant is being obtained, police can detain w/probable cause under limited & reasonable circumstances. IL v. McArthur
• Community Caretaking - Where immediate need to act as part of his community caretaking duty & NO intent to crime-solve, police can enter w/o warrant if a reasonable & prudent officer would perceive such need. People v. Ray and drunk kid on lawn case

Search Incident to Arrest → Once arrested, police may conduct immediate limited search as necessary for safety & evidentiary concerns the area (or vehicle) w/i arrestee's immediate possession/control. (Chimel v. CA, NY v. Belton) “Every arrest must be presumed to present a risk of danger to the arresting officer & arrestee.” (WA v. Chrisman, US v. Butler )

• Grab area searches → Area is not strictly limited by arrestee's wingspan or other restraints (US v. Lucas), but MUST be restricted to contents present (US v. Perea) & area determined as of the time of arrest (Davis v. Robbs) for subsequent searches of area soonafter to be permissible (US v. Abdul-Saboor). SITA does not extend to impounded cars (Chambers v. Maroney), though it may fit Inventory/AutoX.
• Arrest/Search Sequence → So long as P/C for arrest existed prior to search, police may arrest suspect after conducting search. (Rawlings v. KY, Smith v. OH)

Consent → Where, in absence of warrant, voluntary & intelligent permission is granted for area in apparent authority, police may conduct a search. Police have no duty to inform you that you may refuse consent.

• Roommates/Co-occupants → Where 2+ people have actual (or apparent) equal rights to use property, any can consent to warrantless search (US v. Matlock), though consent can be negated by present co-occupant's objection (GA v. Randolph).

Automobiles → Where P/C to believe contraband/evidence in car, Police may search entire automobile (including trunk) & any (unlocked) containers within it likely to contain item for which they had P/C to search (r: pervasive vehicle regulation lowers RXoP) (CA v. Acevedo, US v. Ross), even when search is delayed until after arrest (Chambers v. Maroney). P/C may arise after stop, so long as before search or arrest are initiated (practicability of obtaining warrant).

• Personal baggage → Where no P/C to believe contraband/evidence in car, but suspect luggage subsequently placed inside vehicle, police may not search under AutoX (r: heightened RXoP). (US v. Chadwick, AK v. Sanders, US v. Ross)
• Mobile homes → Where P/C, determination of "automobile" made based upon ready mobility (eg. driveable/hitched to vehicle) PA v. Labron
• Other passengers & their property → Where P/C to believe contraband/evidence in car, police may search all contents of car, whether driver's property or not. WY v. Houghton Police may not, however, search other persons or property, once removed from car US v. Di Re, w/o add'l probable cause. MD v. Pringle

Plain View → 3 Elements of valid Plain View Search - (1) Lawful access to vantagepoint area, (2) Lawful access to item itself, & (3) criminality of item is immediately apparent. Officer intent is irrelevant (Horton v. CA, AZ v. Hicks).

• Apparent criminality → Where only RS that property is stolen or item has traces of drugs, police may not make closer inspection, conduct tests, or move for better view.
• “Plain Touch” → Cop may remove object of readily discernible identity while patting down suspect (Dickerson), but not if object is unintelligible (no PC to believe it’s contraband)
• Absent exigency, where no permission to access object, must secure location & wait for warrant. (Shed slot machine problem)
• Where a specific affidavit returns a general warrant, plain view becomes fishing expedition. Keep all controlled substances while severing the "all stolen property" and applying same rules of exigency.

Inventory Search → Once in custody, Police can search & inventory any container or article in arrestee's possession. IL v. Lafayette. Police may perform also "routine" inventory/search of impounded car & its contents w/o warrant or P/C, SD v. Opperman except luggage, which is distinguished from other closed containers (r: heightened RXoP).US v. Chadwick, AK v. Sanders

• NOT treated as investigative searches, rather serve 3 administrative purposes: (1) Protection of owner's property in police custody, (2) protection of police against claims/disputes over lost/stolen property, and (3) protection of police from potential danger. US v. Tueller

Special Needs - Where compelling state interest outweighs intrusion on individual privacy, police may institute limited suspicionless searches (random drug testing, luggage inspections, etc.)

• Schools → Students have limited privacy interests on school grounds (NJ v. T.L.O.)
• Checkpoints → Where effectively pursuing information (IL v. Lidster) or compelling state interest (sobriety) (MI v. Sitz), checkpoint is permissible in so far as purpose outweighs intrusiveness (balancing test). Checkpoints looking for ordinary crimes are unconstitutional, unless there is individual reasonable suspicion for each stop. (IN v. Edmond)

Terry Stop & Frisk → Where Reasonable Suspicion of criminal activity, police may briefly stop suspects where they are for questioning. Where RS extends to posing a danger, police may additionally frisk (Terry v. OH). Taking suspect down to station exceeds "stop" (Dunaway v. NY).

• Methods of Seizing → 1) Physical restriction of freedom and 2) a show of authority such that a reasonable person would not feel free to leave (Mendenhall
• Giving chase → If, while being chased, you stop (submitting to police authority) or are tackled, then as of that moment you have been "seized" under 4th Am and any evidence dislodged as a result is a "search." If prior to that moment, you toss away evidence, then Mendenhall "freedom to leave" determination is necessary, but not sufficient, for seizure. (California v. Hodari D)

Inevitable discovery: Evidence that would be thrown out for violation may come back in if there is enough probable cause otherwise that would've supported a legitimate search later on.

Reasonable Expectation of Privacy

Problem 1-5 (p.43): Privately-owned Computer in municipal office - Knowing exposure of otherwise private information

( A.H., a child, Appellant, v. STATE OF FLORIDA, Appellee )

• http://politechbot.com/docs/child.porn.laws.apply.to.minors.020807.html
• http://news.cnet.com/Police-blotter-Teens-prosecuted-for-racy-photos/2100-1030_3-6157857.html

LOPEZ (1963) - Bribing an IRS agent, undercover put a tape recorder in pocket, wants to play before jury. Supreme court says, No privacy, dialogue the same by testimony or recording. Misplaced trust.

HOFFA (1966) - Business associate informant, wouldn't have talked if he knew. Fact that he assumed confidence.

LEWIS (1966) - Unknown buyer (undercover), Falsely misrepresented identity. Again, fact that he assumed confidence.

WHITE (1971) - Unknown buyer wired to police surveillance

Problem 1-2 (p.42): Communal space in apartment

Jacobsen

Probable Cause (Always necessary):

Warrant (Sometimes necessary):

Introduction to 4th Amendment

1. Reasonableness Clause: “Right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated,”
   • “The People” - US v. Verdugo-Urquidez (1990) (34) [warrantless search of Δ’s home in Mexico] Maj (Rehn): 4A meant to apply to national community. Non-resident alien on foreign soil not protected.

     Dis (Marshall/Brennan): 4A is “unavoidable correlative” of gov’t enforcement of crim law.

2. Warrant Clause: “and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
   • Formerly treated as dominant 4A clause. Post WWII, warrantless searches presumed unconstitutional. This is changing.

Important cases

Exclusionary Rule

• Weeks v. United States (1914)
• Mapp v. Ohio (1961)
• United States v. Leon (1984)
• Pennsylvania Board of Probation and Parole v. Scott (1998)

Privacy

• Olmstead v. United States (1928)
• Katz v. United States (1967)
• Zurcher v. Stanford Daily (1978)
• United States v. Karo (1984)
• California v. Greenwood (1988)
• Florida v. Riley (1989)
• Kyllo v. United States (2001)
• United States v. White (2003)
• Hepting v. AT&T (2006)
• Hudson v. Michigan (2006)

Informants

• Illinois v. Gates (1983)

Search Warrants

• Franks v. Delaware (1979)
• Maryland v. Garrison (1987)
• Richards v. Wisconsin (1997)
• Groh v. Ramirez (2004)

Arrest and Search of a Person Without a Warrant

• United States v. Watson (1976)
• United States v. Robinson (1973)
• Tennessee v. Garner (1985)
• Whren v. United States (1996)
• Atwater v. City of Lago Vista (2001)

Search of and Seizure from a Residence Without a Warrant

• Chimel v. California (1969)
• Vale v. Louisiana (1970)
• Payton v. New York (1980)
• Steagald v. United States (1981)
• Illinois v. McArthur (2001)

Search and Seizure of Vehicles and Containers Without a Warrant

• Carroll v. United States (1925)
• South Dakota v. Opperman (1976)
• United States v. Chadwick (1977)
• Arkansas v. Sanders (1979)
• New York v. Belton (1981)
• United States v. Ross (1982)
• California v. Carney (1985)
• Colorado v. Bertine (1987)
• California v. Acevedo (1991)
• Knowles v. Iowa (1998)
• Wyoming v. Houghton (1999)

Plain-view & Plain-feel

• Arizona v. Hicks (1987)
• Horton v. California (1990)
• Minnesota v. Dickerson (1993)

Stop and Frisk

• Terry v. Ohio (1968)
• Dunaway v. New York (1979)
• Florida v. Royer (1983)
• Michigan v. Long (1983)
• United States v. Place (1983)
• Florida v. J.L. (2000)
• Illinois v. Wardlow (2000)
• United States v. Drayton (2002)
• Hiibel v. Sixth Judicial District Court of Nevada (2004)

Border Searches

• United States v. Thirty-Seven Photographs (1971)
• United States v. Ramsey (1977)
• United States v. Montoya de Hernandez (1985)
• United States v. Flores-Montano (2004)

Something

"Bloody clothes and all other items that tend to establish the elements of the crime"

pliers, blond hair, bits of skin/flesh, rope or cloth used to bind victim, bits of victim's clothing

All point to murder

Reasonable to suspect that after 15-20 seconds of no answer destruction of evidence is taking place.

Execution of Warrant

Knock and Announce

Before entering a dwelling, Police must knock & announce presence to allow admittance by resident.

• After express or implicit refusal to admit, use of force permitted, but held to reasonable suspicion standard
  • Reasonable based on circs: Evidence at issue, time of day, etc (but not how long it takes to get to door)

In exigent circs, unannounced entry permitted, but held to reasonable suspicion standards

• Unannounced entry permitted in exigent circs – std is reasonable suspicion of exigency
• Reasonable suspicion that announcement would create a risk of destruction of evidence, or a risk of harm to cops or others
• Will vary based on what cops are looking for
• BUT no bright-line rule (e.g. all drug cases) – CBC determination

• Police can also damage premises as far as necessary for no-knock entry • Presence of owner/occupants is advisable, but not required o Also required to serve person w/ warrant, but can be after search is conducted • Cops executing search warrant have authority to detain occupants of premises while search is conducted o And can use amount of force that is reasonable under circs o Can sometimes search persons present on scene when search warrant is being executed • Cops can get help from 3rd parties, as long as 3rd party is there to aid the search, not for his own purposes o 3rd parties not allowed when their presence is unrelated to objectives of authorized intrusion – includes media ride-alongs o Hasn’t ruled on admissibility of evidence discovered by media

• privacy protection
• allowing sufficient time for compliance w/law
• reduction in risk of violence and property damage
• reasonable suspicion re exigency or futility

E xigency

S earch incident to arrest → allows fairly thorough search within their wingspan

C onsent → Must be voluntary & intelligent, fact-specific legal standard

A utomobile → All including closed containers in reach, but not locked glove box or trunk

P lain view → So long as officer is legitimately present where observation made

I nventory search →

S pecial needs →

T erry stop & frisk →

Notes on Consent:

If police come to your door and say "we have a warrant here, can we search?"

• If warrant turns out to be bad, that’s not a valid consent
• Saying that they have a warrant negates consent
  • Police do not have to warn you that you have a right not to consent
  • Third party consent
• Where two or more people have an equal right to use a piece of property, anyone of them can consent to its warrantless search

Belton is the law

Thornton -

Is there a search warrant?

• PC1
  • In NY in order to have a valid warrant based in part on an informant’s tip, the affidavit must be:
    • Set forth sufficient underlying facts and circumstances to allow the magistrate to know how the informer got his information
    • Establish the reliability and credibility of the informer
    • BK ßà V
• Warrant must state with particularity the place to be searched and the things to be seized
• Must be issued by a DNM

Six exceptions to the warrant requirement

• Incident to a lawful arrest à SITA
• Legal requirements:
  • Arrest must be lawful
  • Search must be contemporaneous in time and place with the arrest
  • Geographic scope limitation
• The person and the areas into which he could reach in order to procure a weapon or destroy evidence = “wingspan rule”
• SC said in 1991 (Belton) when a person is validly arrested in a car their wingspan includes the entire interior compartment of the car and everything in but not the trunk of the car

ESCAPIST

E xigency

S earch incident to arrest → allows fairly thorough search within their wingspan

C onsent → Must be voluntary & intelligent, fact-specific legal standard

A utomobile → All including closed containers in reach, but not locked glove box or trunk

P lain view → So long as officer is legitimately present where observation made

I nventory search →

S pecial needs →

T erry stop & frisk →

Exigency

Arrests in the Home

Payton v. New York (US 1980—182): Circumstance: suspect in home of 3rd party. Absent exigent circumstances, an arrest warrant is required to enter an individual’s home in order to effect an arrest

• Arresting officer must have reason to believe that suspect is in the dwelling
  • although search warrant would arguably be more protective (b/c it would require officer to establish before a neutral magistrate PC that suspect will be at home at a particular time), it is impractical
  • moreover, arrest warrant at least requires neutral magistrate to find PC to arrest (thus, officer is not permitted to enter the home solely of his own accord), the line btw. the home and public place

• Doorway arrests (184): circuits are split as to whether a doorway arrest is or is not “in the home” (thus, requiring an arrest warrant)
  • those who hold it is not are faced with the following search incident to arrest problem: if suspect is arrested before the officer steps through the door, officer may enter the home to carry out a permissible SITA; if, however, the officer first enters the home and then makes the arrest, the arrest is unconstitutional under Payton (and any evidence found in the home is the product of an unlawful search)

• Arrests of third parties in the home
  • Steagald v. United States (US 1981—186): search of ∆’s house based on reasonable belief that third party suspect (for whom police had arrest warrant) was on the premises held unconstitutional
    • NOTE: this right only protects the homeowner, not the third party suspect arrested in another’s home (Underwood—9th Cir)
  • if, however, third party is a co-tenant or otherwise a resident, search is valid (on basis of arrest warrant for third party) (Litteral—9yh Cir; Lovelock—2d Cir)
    • father staying above garage while working on home (Pallais—7th Cir)
    • girlfriend, even though officer knew she had her own apartment (Risse—8th Cir)
  • standing to assert that arrest in third party’s home was unlawful
• overnight guest has REOP in host’s home; thus, arrest warrant is required to make an arrest in that home (Minnesota v. Olson, US 1990—187)
• however, two individuals arrested in third party’s home while there for several hours to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant was lawful (Minnesota v. Carter, US 1998—188)
• important factors in determining whether there is a REOP in host’s home
  • length of stay
  • purpose of visit: social v. business

Robbery suspect flees to home, cops ask mother at door, can we search for robber?

Once arrested, must prove there is another in the house with the ability to dissipate evidence

Also, may prevent entry into home while trying to retain warrant

Chimel → To search, must be within reach

Belton & Thornton → To search, must be contemporaneous to arrest

Arrests in threshhold

Threshhold of home

Santana – Door must be open to stand in threshhold, thus akin to “in the home” 9th Circuit – If open door at behest of police w/arrest (but not search) warrant, → “close enough, Santana governs”

Arrests in tent

Look at facts of 4A9 → Is a tent more like a car or more like a home? Likened to Belton (treated like car), less bothered by exigency

Arrests in cars & mobile homes

See Automobiles exception

Arrests as Community caretaker

Community Caretaking (Loud parties/foul odor cases)

• How great need the threat be?
• Missing child investigation, going door to door, note foul odor, enter & discover drugs
• Responding to Noise complaint, ask drunk kid on lawn for responsible adult, “bro home but you can’t go in”, not allowed b/c no knock & announce

Problem 4B6 (Ohio): Loud radio with angry dwellers in home

Stewart

Welsh v. Wisconsin (pg 194) – Warrantless entry into home of DWI suspect, argued all three theories (lost on each): hot pursuit of driver, threat of drunk driving, “sober up”

Today DWI punished much harsher, so warantless entry, more easily justified

Search Incident to Arrest

Search Incident to an Arrest (SITA); Pretextual Stops and Arrests; Plain View Seizures

Spatial Limitations

Chimel v. California (1969), Stewart

F: Police came to petitioner's home with an arrest warrant to arrest him for an alleged burglary. When petitioner returned from work, police arrested him. Police then asked for permission to "look around." Even though petitioner objected, the officers conducted a search. They looked through the entire house and had petitioner's wife open drawers and physically remove contents of the drawers so they could view items. Police seized a number of coins and medals, among other things, that respondent State later used to convict petitioner of burglary. Reversing the appeals court's affirmance of conviction, the court held that the search was "unreasonable." It found that there was no justification for searching any room other than that in which the arrest occurred. Even searching through desk drawers or other closed or concealed areas of the room where the arrest occurred was not appropriate. Extending the search to the entire house was not proper, and the court overturned the conviction.

Q: whether the warrantless search or the petitioner’s entire house can be constitutionally justified as incident to that arrest

H: the search of his entire house, when he was arrested earlier in the day and at his place of work, was unconstitutional in that it was not sufficiently connected to the safety and evidentiary concerns that lead to warrantless searches; nor was this area within his immediate control

R1: Rabinowitz: a warrantless search ‘incident to a lawful arrest may generally extend to the area that is considered to be in the ‘possession’ or under the ‘control’ of the person arrested

R2: Ensure officer’s safety and to preserve evidence

• Arrest leading to exigent circumstances
  • White’s dissenting argument in Chimel is that exigent circumstances will arise so often upon an arrest that it makes sense to establish a bright-line rule permitting a search, so as to avoid the negative effects of ad hoc judgments and a case-by-case approach
  • The Court requires a showing of exigency on the particular facts of the case, and that the arrest of a person, while certainly relevant, is not dispositive of whether there is risk of destruction of evidence or harm to the officers or public that would excuse the warrant requirement.
  • Vale v. Louisiana (1970): arresting suspect on the street did not provide the exigent circumstances necessary to warrant search of the house
  • In many cases, an arrest will create exigent circumstances due to the risk that the arrestee’s friends, family, or associates will destroy evidence
  • United States v. Socey (1988): “Consistent with Vale, we believe that a police officer can show an objectively reasonable belief that contraband is being, or will be, destroyed within a home if he can show 1) a reasonable belief that third persons were inside a private dwelling and 2) reasonable belief that these third persons are aware of an arrest of a confederate outside the premises so that they might see a need to destroy evidence”
  • Protective sweep after an arrest
    • Even in the absence of exigent circumstances, police may, pursuant to the Terry doctrine, search beyond the Chimel spatial limitations if it is necessary to conduct a “protective sweep” of the place where the arrest is made
    • Maryland v. Buie (1990): the Court defined a “protective sweep” as a “quick and limited search of a premises, incident to an arrest an conducted to protect the safety of police officers or others;” limited to areas where third parties might be hiding

Temporal limitations

Sequence of search and arrest

• Courts will not concern themselves with which came first – when both are nearly simultaneous and probable cause to arrest existed before the search was conducted
• Rawlings v. Kentucky (1980): “where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”

  But a search cannot be used to provide the probable cause necessary to make the arrest (if the arrest happens before or simultaneously), Smith v. Ohio

Removal from the arrest scene

• Chambers v. Maroney (1970): searching an impounded car after the suspect is already arrested and down at the station does not qualify as an SITA (however, it does fit as an exception to the warrant requirement under the auto exception)
• United States v. Edwards (1974): most searches and seizures of the arrestee’s person and things in his possession at the time of the arrest could be examined almost automatically

Searches of the person incident to arrest

• United States v. Robinson
  • F: Defendant was pulled over by a police officer. The officer had probable cause to arrest defendant for driving after his license had been revoked. The officer then searched defendant and felt an object under defendant's coat. The officer reached into the coat and pulled out a cigarette package. The officer felt there was something in the package that was not cigarettes. The officer opened the package and found what was later determined to be heroin. The Court reversed the appellate court's decision and found the search permissible under U.S. Const. amend. IV. A search incident to a lawful arrest was clearly authorized. The appellate court's decision was incorrect in that it concluded that even with probable cause for an arrest, an officer was only allowed to conduct a protective frisk for weapons. When an officer had probable cause for an arrest, as the officer in the present case did, a more extensive exploration of the suspect's person was authorized. This was to protect the officer, but also to preserve evidence. The fact that defendant was to be arrested for a driving offense did not lessen the officer's right to search defendant.
  • H: “A custodial search of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification…in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment”
  • R1: The question is whether an officer can proceed to a full search of the prisoner
  • R2: Rests on both safety and evidentiary concerns
• Powell concurrence: prisoner’s REOP is lowered, thus it is not a search
• Risk of loss of evidence?
  • No fear of safety, but court allows SITA of the person in every case
  • Broader than Chimel – just rooted in lawful custodial arrest
• Remember, the Chimel search is an exception
• Atwater v. City of Lago Vista (2001) (Custodial arrests for minor offenses)
  • F: Respondent officer arrested petitioner arrestee for seatbelt violations and placed her in jail until she was released on bond. Petitioners sued respondents, alleging a Fourth Amendment violation. Respondents were granted summary judgment. On certiorari review, the court affirmed the judgment in favor of respondents. The court determined that the Fourth Amendment does not limit police officers' authority to arrest without warrant for minor criminal offenses. Respondent officer had probable cause to believe that petitioner arrestee had committed a crime in his presence; therefore, respondent officer was authorized to make a custodial arrest without balancing costs and benefits or determining whether or not the arrest was in some sense necessary. The court rejected petitioners' argument that peace officers' authority to make warrantless arrests for misdemeanors was restricted at common law to instances of breach of the peace. The court also rejected petitioners' argument for a modern arrest rule.
  • Q: whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.
  • H: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
  • R1: Far too difficult to apply a case-by-case determination of which offenses an officer may arrest for and which are so minor as to be an unreasonable seizure
  • R2: Rules must be sufficiently clear and simple; administrable
• Robinson and containers in the arrestee’s grab area
  • The Court in Robinson established an automatic right to search everything found on a person who has been subjected to a custodial arrest
  • United States v. Chadwick: REOPs in areas not within immediate reach are not diminished purely due to arrest

Virginia v. Moore

Terry Stop and Frisk

U.S. v. Mendenhall

F:

H: New Reasonable person standard of arrest -

A person is "seized" when by force or show of authority, movement is restrained. Seized only if in view of all circumstances surrounding the incident, reasonable person believed not free to leave

The Mendenhall Reasonable person standard of Arrest says a “person is "seized" within meaning of Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained; person is "seized" only if, in view of all of the circumstances surrounding the incident, reasonable person would have believed that he was not free to leave, and as long as person to whom questions are put remains free to disregard questions and walk away[..].”U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Mendenhall remains good law today.

Though she thought she was being held, she was free to leave and thus consensual, not a seizure/detention.

Problem in class (Mass):

• Guy walking at 3am with dept store bag in neighbourhood with string of burglaries (Stop).
• If you're able to point to something (burglaries in neighbourhood, walking around alone at odd hours, carrying shopping bag though clearly stores are closed).

  Stop: Facts, together with rational inferences from those faults reasonably warrant the officers belief that criminal activity is afoot.

  Frisk: R/S that defendant is armed & dangerous.

  • If an officer says, "I feared for my safety," courts are loathe to dispute.

Florida v. Bostick -

United States v. Drayton - The bus case

California v. Hodari D.

F: Officers were on patrol in a high crime area of Oakland, CA. They were dressed in street clothes but were wearing jackets that had "Police" emblazoned on both front and back and were driving and unmarked car. Officers saw suspicious youths around a car and when the youths saw the officers' car approaching they ran away. The officers gave chase. Hodari D did not see Officer Pertoso until the officer was almost upon him. Hodari D threw what appeared to be a rock, and later turned out to be crack cocaine, to the ground. Pertoso tackled and handcuffed him, and called for assistance. In the juvenile proceeding against him, Hodari D moved to suppress the evidence relating to the crack cocaine. The court denied without opinion. The CA Court of Appeals reversed this decision, holding that Hodari D had been "seized" when he saw Officer Pertoso running towards him, that this seizure was against the 4th amendment, and that the evidence of cocaine had to be suppressed as the fruit of this illegal seizure. CA Supreme Court denied the State's application for review.

Constitutional Issue: With respect to a show of authority as with respect to application of physical force, does a seizure occur even though the subject does not yield, which would constitute a violation of the 4th amendment's protection against an illegal seizure, as applicable to the states by the due process clause of the 14th amendment? Holding: No.

Opinion of the Court: Hodari D's defense relies upon the proposition that a seizure occurs "when the officer, by means of physical force, or show of authority, has in some way restrained the liberty of a citizen." The language of the 4th amendment cannot sustain his contention. The word "seizure" readily bears the meaning of lying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply to a police officer telling a fleeing subject to "stop in the name of the law." That is not a seizure. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. Assuming that Officer Pertoso's pursuit constituted a "show of authority" enjoining Hodari D to halt, since Hodari D didn't comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was not the fruit of an illegal seizure. Principle of law: A seizure must have a physical component to it. Simply running away does not constitute a seizure of one's liberty.

H: If, while being chased, you are tackled, then you have been seized. If, while being chased, you stop (submitting to the cops authority), you have been seized. If, as a result of tackling, evidence is dislodged from your person, then that is a search. If, however, you are being chased and, prior to tackling, you toss away evidence, then the Mendenhall standard of "freedom to leave" is necessary, but not sufficient, for seizure. Two ways of seizing: 1) Physical laying of hands on a person & 2) where there is a show of authority such that a reasonable person would not feel free to leave, the individual being pursued "submits to authority."

NJ & some other states reject the "submission to authority" theory of Hodari D.

Brendlin (2007) (9-0 decision) Important concept case

If you're in a traffic stop, driver is seized, but what about passenger? Yes, both seized, because liberty of both are infringed. Passenger can contest seizure, if need be.

Problem 5A5 on p362

If yelled "stop" helpful for defense, not seized under Hodari D., if bolted in the other direction. Abandonment of property was product of unlawful seizure at time when the cop turned car around and ordered him to bring the bag over. By the time he discarded property, was seized.

Look at R/S as of time seizure occurred. How about the fact of flight? If no RS at time suspect took off, is fact of flight sufficient for R/S?

Illinois v. Wardlow

F: Cops in 4-part caravan come towards a guy in a high crime area, who took off upon seeing them. Upon seeing him fleeing, cops chased him down and stopped.

H: Totality of the circumstances test.

What is dispositively different? Tipster got it right in both circumstances.

Alabama v. White - Sufficient suspicion to justify stop.

• Specificity of info from tipster (certain woman of certain name would be leaving specific building with specific car going to specific location exiting with specific drugs)

Florida v. J.L. - Insufficient suspicion to justify stop.

• Questionable reliability of tipster, lacked personal knowledge, no corroboration of facts.

Reasonable Suspicion

Recent Supreme Court Case

United States v. Arvizu - RS is an abstract concept, not mechanistic. Actions that may seem innocuous to most, may have meaning to particular investigating officers. Courts are not to second guess them.

Where Terry meets Dunaway

• Terry - a "stop" is not an arrest, thus not requiring “specific and articulable facts”
• Dunaway - bringing down to station for questioning is an arrest, b/c transportation & manipulation
• Hayes - bringing down to station for fingerprinting is an arrest, b/c transportation...
  • ...but wait...what if it was an on-site? Conservative justices hint that might be covered.
• Sharp (brevity requirement) - Cops must act reasonably (at its inception/in scope) & diligently in the interest of brevity
  • Reasonable at its inception
  • Reasonable in scope

  F: Two cars driving in tandem are approached by police, one pulls over, the other continues for a bit before pulling over. Second car has to wait for DEA agent to finish investigating the first car before coming down for second. After 20 minutes of a stop waiting with officer, DEA Agent arrives to conduct search.

Problem 5A21 (Pg 424) - Compliance with brevity

Stop and Identify statutes

You can search a car as part of an inventory search (once impounded) and in a frisk (limited).

In the Terry doctrine, Terry frisk is permitted only in interest of officer safety.

In a traffic stop, frisk extends to immediate reach in vehicle (because only need RS officer at risk of bodily injury, not PC)

Frisk is not a vehicle search incident to arrest (Schimmel), thus does not extend to passenger commitment

Protective Sweeps

Protective sweep - Buie rule limits to area immediately around the arrest (not two floors up)

All under Terry, all with out PC, all maintaining balancing of officer safety versus privacy

Terry v. Ohio - Authorized limited pat down for weapons where a reasonably prudent officer would be warranted in the belief, based on specific and articulable facts and not on a mere “inchoate and unparticularized suspicion or hunch that he is dealing with an armed and dangerous individual.

Michigan v. Long - Reasonable for a policeman pursuant to an arrest to check a glove box for weapons a frisk of an automobile for weapons.

Minnesota v. Dickerson Plain-feel.

Maryland v. Buie (1990)

F: 2 armed men rob pizzeria, police stakeout Buie home and get arrest warrant for him & accomplice. After confirming his presence at home, 6 officers enter and fan out looking for Buie & any accomplices. Officer calls down into basement, in response to which Buie surrendered. After arrest, subsequent officer went back down into basement to search for accomplices. Red jogging suit, found there in plain view, taken as evidence and later IDed as the clothes worn in robbery.

H: The 4th Amendment bars unreasonable searches and seizures, there are other contexts, however, where public interest is such that neither a warrant nor probable cause is required. Terry & Long create notion of a protective sweep (PS), lasting no longer than necessary to dispel RS of danger and time it takes to complete arrest and depart the premises. A PS is far removed from Chimel "top-to-bottom" search and decidedly not automatic, but conducted only when justified by RS that house is harboring a person posing danger a danger to those at arrest scene.

Review: Detention & Search of the Person

The more invasive the search, the stronger the need of the state to justify it.

A. What should an officer be allowed to do when lacking probable cause to arrest, but has a reasonable suspicion that the individual is about to engage or has engaged in criminal activity? (Terry, Sibron, Dickerson)

...if the individual is in or near his home? → Hayes, Dunaway

...if the individual is in her car? → Sharpe, Long, Mimms, Wilson

...if the individual is at the airport? → Mendenhall, Royer, Montoya de Hernandez, Place

...if the individual is at a (public) school? → T.L.O.

B. Can an officer rely on an informant's tip as opposed to personal observation to justify a stop and/or frisk? → Alabama v. White, Florida v. J.L.

C. When is an individual "seized" for 4th Amend purposes? → Mendenhall, Hodari D., Royer, Chesternut

...if the individual is on a bus? → Bostick, Drayton

D. What sort of evidence may be used to justify a stop and/or frisk? → Wardlow, Sokolow

E. What sort of showing is necessary to justify prolonged detention or a more intrusive/invasive search? → Schmerber, Lee, Garner

F. Can "special needs" justify the detention and/or search of an individual without individualized suspicion of illegal conduct? → T.L.O, Sitz, Edmond, Skinner, Lidster, Von Raab, Acton, Chandler, Ferguson, Earls, Flores-Montano

4 Categories - Schools, Drug Testing, Border Searches, & Checkpoints

Skinner - Suspicionless search

Confessions & Incriminating Statements

Right to suppress confessions governed by:

• 14thAm Due process (minimally now, due to higher bar than 5th & 6th) → (1936 & 1964)
• 5thAm Miranda (once arrested, while in custody) → (1966)
• 6thAm Right to Counsel (once formally charged, for crimes charged with) → Escobedo, Massiah (1964)

The Breakdown → You only gain rights, not lose them.

• 14thAm Due Process always applies, but high standard of involuntary/gov (Fulminante)
• Once custodial interrogation initiated, 5thAm Miranda applies
• Once charged, 6th Am Rt2Counsel applies to crimes charged (even when released from custody)

Miranda is concerned with police domination

Right to Counsel is about the opportunity to consult an attorney

14thAm Due Process

• AZ v. Fulminante - Confession obtained through implicit threat of violence in promise to protect from harm in jail is inadmissable.
• Ashcraft v. TN - Secret inquisitions are inherently coercive are irreconcilable with the possession of mental freedom and thus weighted against the state. If confession arises from such a circumstance it is not voluntary, but compelled.
• Spano v. NY - Ct tires of due process/voluntariness approach to confessions; emphasis on DEF in custody not receiving counsel (implicit use of official pressure, fatigue, sympathy falsely aroused)
• CO v. Connelly - Waiver must be "knowing, intelligent, and voluntary" in that the suspect reasonably appears to understand what he/she is doing, and is not being coerced into signing. It is completely irrelevant whether the suspect may actually have been insane at the time.

Pg. 582 - Educated person, claiming knowledge of rights, police made promises (lies) & threats (humiliation to family)

Procedures for pre-trial suppression of a confession:

Orthodox - If judge determines confession admissible, jury receives instruction to take it as fact.

Massachusetts - If judge determines confession admissible, jury receives question of fact to determine.

5thAm Miranda

Non-offense specific

• Escobedo v. IL - Historical position, pre-indictment interrogations held non-violative of 5thAm, OVERRULED BY MIRANDA
• Miranda v. AZ
• NY v. Quarles - Public Safety Exception (PSX) - questioning re: handgun tossed aside in chase

  USSC described PSX as narrow, but lower courts have interpreted broadly

  • Problem 8A3 (pg. 624) - In private residence, not public place. Not imminent. Still yes, PSX.
  • Problem 8A4 (pg. 625) - Still yes, PSX

• Dickerson v. US - Miranda warnings are constitutional prerequisite for admissibility at trial, not merely a requirement of 18 USC § 3501 that statements be voluntary.
• Chavez v. Martinez - No civil action for violation by failure to Mirandize, if statements not used against you, since no self-incrimination

"Alternative procedures (to Miranda) which are at least as effective..." → "reasonable conveyance" in jail?

"Cat out of the bag" theory - 1st confession pre-miranda, 2nd confession post-miranda, can cops use 2nd confession?

Custody & Interrogation

For suppression of statements under Miranda, suspect must be in custody (Berkemer) AND being interrogated (Innis)

"Taken into custody" or "otherwise deprived of freedom in any significant/substantial way"

O'Connor - "atmosphere of 'police domination and coercion'"

• Orozco v. TX - Arrest counts as custody, even in one's own home (regardless of officer's subjective belief)
• OR v. Mathiason - No custody where unescorted DEF comes to station of own free will, told “not under arrest,” & left station w/o hindrance after confession.
• RI v. Innis - A "spontaneous" statement made by DEF in custody, though DEF neither was Mirandized nor had invoked-right-to-counsel yet honoured, is admissible in evidence, so long as not in response to questioning or conduct by police likely to produce an incriminating response (need more than subtle compulsion).
• Berkemer v. McCarty - Brief (Terry) roadside investigatory detention is not necessarily custody (but could be, see Sharp)
• Stansbury v. CA - Interrogator's subjective, undisclosed view is irrelevant to assessment of custodial arrest. Only consider the individual's view of his freedom to leave. Instead, the key inquiry should be whether the individual was placed under formal arrest, or the restraint placed on the individual's freedom of movement rose to the level of a formal arrest. The "initial determination of custody depends on the objective circumstances of the interrogation, not the subjective views harbored by either the interrogation officers or the person being questioned."
  • Problem 8B-2 (pg. 633) - Kid warned "you can go home when you tell us the truth," court found taken into custody
  • Problem 8B-6 (pg. 635) - 14yo signed confession written by officers (operates at a 6th grade level, reads at a 2nd grade level), agents set ground rules that he could walk away, court found all discussions non-custodial
  • Problem 8?-? (pg. 657) -

Waiver

2 Elements of Waiver →

1. Given "Voluntarily" (free from gov't coercion)
2. Given "Knowingly & Intelligently" (Heavy Burden → Preponderance)
   • Just because a decision to waive lacked wisdom does not mean it wasn't given intelligently

• NC v. Butler - Explicit waiver is not necessary; implicit waiver may be found based on the circumstances of the case. An inflexible rule barring implicit waiver exceeds the requirements of federal organic law, and thus its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the US Constitution.
• CO v. Spring - Suspect's awareness of all crimes about which he may be questioned is constitutionally insignificant to the validity of his waiver decision. Decision was voluntary, absent evidence that his will was overborne and his capacity for self-determination critically impaired because of coercive police conduct, and also knowingly and intelligently made, in that, he understood that he his right to remain silent and that anything he said could be used as evidence against him. The Constitution does not require that a suspect know and understand every possible consequence of waiver. Law enforcement's silence as to the subject matter of an interrogation is not "trickery" sufficient to invalidate a suspect's waiver of Miranda rights. The additional info could affect only the wisdom of a Miranda waiver, not its voluntary and knowing nature.
• Moran v. Burbine - Confession preceded by an otherwise valid waiver should not be suppressed either because the police misinformed an inquiring attorney about their plans concerning the defendant or because they failed to inform the suspect of the attorney's efforts to reach him.

  Just because the suspect does not have access to info relevant to waiver decision, does not make his waiver any less V or K&I

• MI v. Moseley - Once a D exercises his right to remain silent, he must be let alone for a reasonable time and issued a new warning, before returning for further interrogation on another subject. The right of a DEF to cut off questioning must be scrupulously honored.

  DEF's incriminating statement in the case at bar was admissible in evidence, since (a) the defendant had been properly advised of his Miranda rights at both interrogations, (b) when the defendant exercised his right to remain silent at the first interrogation, the officer ! immediately ceased the questioning, and (c) the second interrogation occurred after a significant time lapse, was directed solely to the holdup murder, which was not related to the robberies, and was conducted at another location in the building by another officer.

Once he has asked for his attorney, that should terminate the interrogation, until the counsel's arrival.

6thAm Right to Counsel

Does not require custody but is offense-specific.

6thAm

• Massiah → Brewer & Henry & Kuhlmann
• Edwards (line of cases that stand alone) → MI v. Jackson & Paterson

Ferretta → Right to represent self, but decision must be made knowingly & intelligently

Strickland v. Washington - Ineffective assistance of counsel (Most commonly raised issue on appeal)

Majority - 2 prong test, must be deficient AND but-for deficiency result would've been different (Hard to win)

Marshall dissent - Proposed reasonable attorney standard (Maj concerned that too high a bar)

• Minnick v. MS - Once counsel requested, interrogation MUST cease → To reinitiate, counsel MUST be present. A single consultation is insufficient as it doesn't remove accused from persistent attempts by officials to coerce him into waiving his rights to counsel.
• Gideon v. Wainwright - 6A R2C applies to state felony prosecutions
• Massiah v. US - 6A R2C violated in federal case where, after formal charging, police informant obtains confession. No waiver b/c DEF did not know he was speaking to police.
• Brewer v. Williams - 6A R2C violated in state felony case where, after formal charging, cops obtain incriminating statements through deliberate elicitation. No waiver b/c not an express intentional relinquishment of the right.
• US v. Henry 6A R2C violated where police intentionally create a situation likely to induce respondent to make incriminating statements without the assistance of counsel
• Kuhlmann v. Wilson 6A R2C not violated where DEF offers confession sua sponte in close proximity to police informant who took no action beyond mere listening & reporting.
  • Problem (Jail Conversation) Court found it okay by police.

Edwards cases

• Edwards v. AZ - Where DEF invoked 6A R2C, police may not initiate further interrogation until counsel has been made available to him, unless the accused himself initiates further communication with the police.
• MI v. Jackson - Where DEF invoked 6A R2C at an arraignment or similar proceeding, if police initiate further interrogation, any waiver of that right for that police-initiated interrogation is invalid.
• Patterson v. IL - Where post-indictment DEF waives 6A R2C after being arrested & fully Mirandized, a waiver of that right for that police-initiated interrogation is valid, even if that was unwise. (Note: Higher standard at trial proceedings where advice of counsel is more relevant)
• TX v. Cobb - Where DEF invoked 6A R2C, police may subsequently initiate interrogation on an unrelated (read as: different) count/charge.

Problem Pg. 726 - 5th Circuit said it just shocks the conscience. We have an adversarial process and when counsel sleeps through it, it so undermines the basic premise of a fair trial.

As of '04, Miranda does not apply to physical fruits, even though statement suppressed.

Identifications

Per Se Exclusionary rule for Pre-trial Identifications

1. Problems of eyewitness ID
2. Deterrence (of use of suggestive procedures by police)
3. Administration of Justice

5-Factor Totality of Circs test

1. Witness’ Opportunity to View
2. Witness’ Degree of Attention
3. Accuracy of Witness’ Description
4. Witness’ Level of Certainty
5. Time b/w Witness’ Observation & Confrontation

Extremely hard to have due processes exclusions of pre-trial identifications

Suggestiveness of method is necessary, but often insufficient to throw out

• US v. Wade - Putting tape on face & repeating phrase heard at robbery do not implicate 5th Amend, b/c you are not making testimony, police merely taking a read of physical characteristics. However, 6th Amend applies at all critical stages of the prosecution. Post-charging line-ups, show-ups, & custodial interrogations are critical stages, so counsel needed to be present.
• Gilbert v. CA -
• Moore v. IL - Rape, DEF arrested, first thing was Preliminary hearing, where victim appeared at trial & identified accused.
• Coleman v. AL
• Neil v. Biggers - In rape case, a showup (& recite) 7mos after crime was permissible, due to victim's opportunity & attention to view, accurate description, & certainty
• US v. Ash -
• Manson v. Brathwaite - In a drug sale sting, suggestive single-photo "showup" ("I know that guy") was permissible, due to

Problem 12-4 (pg 824) - 7yo child identifies parents' murderer

	Violated 6thAm Right to Counsel (applies to line-ups & show-ups only)	Violated 14thAm Due Process
Admissibility of out-of-court (pre-trial) ident.	NO (Wade)	"so (unnecessarily/impermissibly) suggestive (& conducive/as to give rise) to (irreparable/a very substantial likelihood of) mistaken identification"
Admissibility of in-court identification	Yes, if prosecution proves "independent source" by clear & convincing evidence (Gilbert)	"likelihood of irreparable misidentification"

3 Kinds

Show ups or single photos (most suggestive)

Line ups

Photo arrays

• Formal charge
• Preliminary hearing
• Indictment
• Information
• Arraignment

Exclusionary Rule

• HISTORY - Weeks v. US Exclusionary rule necessary to protecting 4thAm rights & Judicial integrity (in Fed Cts).

  Silverthorne v. US - Must surrender fruits as well.

  Wolf v. CO - Exclusionary rule does not apply to state criminal proceedings, though 4th Am does (later OVERTURNED)

• Mapp v. OH - Exclusionary rule applies to state criminal proceedings (essential for 4thAm enforcement)

Under Miranda, Incriminating statements are out (unless PSX). But Wait! What about

1. subsequent mirandized confessions w/ waiver (OUT, fruit of poisonous tree)
2. physical evidence obtained as a result of miranda violation (IN, physical evidence is allowable)
3. information learned from Miranda violation that produces useful evidence (IN, though trail to new witness/evidence excluded, see Tucker)

The "Standing" Cases

Courts no longer speak in terms of standing. Principle shifted from standing to "Reasonable eXpectation of Privacy."

• Jones v. US Automatic standing rule for possessory offenses
• Simmons v. US DEF’s pre-trial suppression testimony may not be used for impeachment during trial (however other witness testimony may be used)
• Rakas v. IL No reasonable expectation of privacy (RXoP) in car
• US v. Salvucci - No automatic standing rule, since legitimately on the premises rule suffices.
• Rawlings v. KY DEF has no RXoP in companion's purse (or person), so although her 4thAm rights were violated, his were not.
• US v. Payner - Can illegally seize briefcase of banker to use against customer
• Brendlin v. CA - Automobile passengers are "seized" within the meaning of the Fourth Amendment when the car in which they are riding is held at a law enforcement traffic stop.

Majority nexus position - all parts of the search share the same nexus

• Minority "analytical separation" position → Distinct seizures of driver and passengers. All seizures from car are attached to driver, except from passenger's person.

• "Automatic standing" rule for possessory offenses (Jones) - Do not need to claim ownership for standing to contest.
• "Legitimately on the Premises" rule for nonpossessory offenses (Simmons, eg. armed robbery)

  No use of incriminating statements re: possession of contraband to gain standing at subsequent trial

Stop (challenge via Brendlin) → Search (can't challenge via Rakas) → Seizure

Carter (Ginsburg's footnote 2 on pg 874)

I think it noteworthy that the majority would extend privacy protection to all social guests.

Owners, occupants, overnight guests; then invitees; and below the line business partners with minimal contacts

Problem 14a-4 (pg 876)

It is tougher to overcome taint of due process violation (violent interrogation) than it is if they forgot to give miranda rights or get warrant

Fruit of the Poisonous Tree

"Derivative" evidence acquired by exploiting the initial (or original) illegality is to be excluded, notwithstanding the following exceptions:

• Independent Source doctrine -
• Inevitable Discovery doctrine -
• Attenuation doctrine -

• Brewer v. Williams - 6A R2C violated & no waiver. However, a grid search in vicinity of body had been commenced, so once found, permissible to introduce body as evidence under inevitable discovery.

Problem 14-b-(4 or 5) - So long as they could get into his pockets, it doesn't matter who he claimed he was.

Problem 14-b-6 - Too many but ifs. Prosecution's burden to show it would've inevitably been discovered and they were not sufficiently persuasive.

"Granting establishment of the primary illegality, the evidence...has been come by at the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."

Hiibel

• Wong Sun v. US 3 Events - Toy's statements, Narcotics discovered on Yee, Wong Sun's confession. 1) Time, 2) purpose of flagrancy of the violation, 3) intervening events or circumstances

Harris - Presumption in favour of inclusion.

Problem 14-c-2 - Florida found attenuation. Time was brief undercutting, but warrant was strongly intervening. Also no bad faith as doing community care-taking, warning about busted safety signal.

Practice problems

Problem 14-c-10

Probable cause

→ "substantial basis" for the existence of probable cause ( < 50% certainty)

→ Officer "good faith"

• Affidavit establishing p/cis so egregiously lacking in indicia of p/c that no reas officer could rely on it
• So facially deficient with respect to particularity that no reas officer could rely on it
• P/c based on knowing or reckless falsehoods (franks)
• Magistrate has totally abandoned neutrality

"Good faith" reliance? handout (Gates not Aguilar/Spinelli jurisdiction)

If affidavit contains lies and lies are presented to judge, necessary for p/c, must be higher than negligence.

Impeachment exclusion exception does not include due process clause

Has to be own constitutional rights invaded, not those of third party. If inevitably would've been discovered? Still in If violated, but evidence given out of your own free will (attenuation) If violated based on defective warrant, but relied upon in good faith If violated in good faith defective execution of legitimate warrant, If violated, but you take the stand, can be used per impeachment