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CRIMINAL PROCEDURE

I. 4TH AMENDMENT: “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” Remember: HAS to be gov’t action; Searches = privacy interest; Seizures = possessory interest/freedom of movement
[4th Am. doesn’t apply to search of property owned by non-resident alien in a foreign country. Not sure if illegal aliens are classified as “the people.”]

WHAT IS A SEARCH? Katz determines whether the gov’t activity rises to level of search – 2 prong test:
1) Subjective: Gov’t conduct must offend the citizen’s subjective manifestation of a privacy interest; AND
2) Objective: The privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate
- Why Katz satisfies this: Katz did in fact expect privacy; and we, as a society, expect people to expect privacy in his situation.
Applications of Katz:
- False friend = no REOP if cooperating with the gov’t (you can expect other person will tell authorities)
- Open Field v. Curtilage: Open Field = no REOP; Curtilage (area around house) = REOP, but gov’t can still look over the fence into curtilage
- Financial records = no REOP in records you’ve given to bank if bank gives up to gov’t
- Pen registers = no REOP in the records that the phone company has access to
o No cases on internet, but Burke feels there probably won’t be REOP because internet service provider has records of what you have searched
- Trash = no REOP in garbage; everyone should expect that the public can go through trash.
- Aerial surveillance = no REOP if can have access from aerial view (but O’Connor challenges–it should be more about what typically/empirically happens)
- Manipulation of bags = no REOP to the extent that public would normally touch your bag (but REOP beyond that) (Bond)
- Dog sniffs = no REOP if the dog sniff only reveals illegal activity
- Thermal detection device = REOP in heat emanating from house (public doesn’t have these devices!) (Kyllo) [Note: if there were technology that could
ONLY reveal illegal drug activity, or if the public had this, then this would be okay]
WHAT IS A SEIZURE? If a reasonable person would feel free to leave/terminate the encounter, it is NOT a seizure for 4th Am. purposes! (Mendenhall)
All seizures are either stops or arrests!

If something amounts to a search or seizure, court applies initial presumption that in order to be reasonable, it must be accompanied by warrant based on
PC!
PROBABLE CAUSE: “Reasonably probability” [whereas RS is reasonable possibility]
Informants:
- Aguilar/Spinelli 2-prong test: (ABANDONED BY GATES)
o Basis of knowledge  how does person know what they know? (either explicit – i.e. eyewitness; or implicit – self-verifying detail!)
o Veracity  do we believe this person? (good track record, no reason to lie or a reason to tell truth, if they’re incriminating self, stakes)

 If both elements are met, then tip counts; if one isn’t met, then police need to corroborate, particularly the guilty facts.
- Gates test: Replaced Aguilar/Spinelli with TOTALITY OF CIRCUMSTANCES test:
o Takes into account basis of knowledge, veracity, and corroboration. Innocent facts can help.
As long as there is objective P.C., it doesn’t matter what PO subjectively thought (Devenpeck). Arrest is lawful if D is arrestable, even if it’s for a different crime!
Search warrant = need PC to believe something seizable is likely to be found in particular location. Once a magistrate signs off on a warrant, there’s usually a period
of time in which it must be executed, typically a week. Once the search is conducted, the officer will file a return explaining what it seized and what happened.
Arrest warrant = need PC to believe a crime was committed and that suspect did it. Arrest warrants don’t usually have deadlines comparable to search warrants– John
Smith might be picked up on warrant years later!
WARRANTS: A warrant must be issued by a neutral, detached magistrate and supported by probable cause (Johnson – want a check on police officer)
Requirements of a warrant:
- 1) Neutral, detached magistrate Why? Warrant sets forth terms of search; want an objective player to deem it reasonable; makes a record of it.
- 2) Particularity Requirement: (Warden v. Hayden): 4th Amendment requires that things to be seized be named with particularity
o Police is allowed to seize fruits of crime, instrumentalities of crime, contraband, and evidence
o Particularity of WHAT can be searched: Scope of search is limited. The intrusiveness of the search is going to depend on the SIZE of what they
are looking for. Where they are allowed to search depends on the particularity.
o Particularity of PLACE to be searched: use address, which is enough to satisfy particularity req. If address is incorrect, then it’ll still be okay if
it’s described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort.
 Can search anything in the house, don’t have to figure out who owns it so long as it’s there and they’re allowed to search it
- 3) Reasonably Executed:
o Knock and Announce = Generally, police are required to knock and announce, as part of reasonableness requirement of 4th Amendment.

 Exceptions = (a) No breaking; or (b) Exigency


• Exigency: Risk of (1) destruction of evidence, (2) harm to police officers, or (3) flight of D (Richards)
• Exigency can arise AFTER the K&A, and you can force entry when refused admittance (or when no one answers). 15-20
seconds is not unreasonable to think evidence is being destroyed (Banks). Would have to leave notice.
 No-knock warrant = if police know about exigent circumstances in advance, can get a no-knock warrant.
 REMEDY: For a K&A violation, the remedy is NOT suppression of evidence because police aren’t finding anything they wouldn’t
have found anyway legally under the warrant (Hudson). K&A protects privacy, property, and human life (no surprises).
Anticipatory Warrant = a warrant triggered by event that hasn’t happened yet is constitutional! Cops must have PC to search once some future event occurs (Grubbs).
Sneak & Peek Warrants = post-9/11, Patriot Act authorized warrants giving gov’t power to sneak inside, search around, and never have to leave notice of their
presence there. This is only for terrorism cases, but there’s a concern that they can be misused bc no one scrutinizes these searches.
EXCEPTIONS TO THE WARRANT REQUIREMENT
- 1. Arrests: [Exception to warrant req, not PC requirement] (Can’t EVER arrest someone without PC!!)
o 1) Public Place: (Watson) Can arrest in public place w/ PC w/out a warrant if arrestee is committing:

 A) Felony; or B) Misdemeanor committed in officer’s presence


• Courts haven’t decided on misdemeanors not in officer’s presence, but to be safe, get a warrant!
o Exception: domestic violence – in many states, police is required to arrest if they have PC
o 2) In the Home: (Payton) (includes periods of rightful possession of hotel room) Can arrest in home with PC with:
 A) an arrest warrant, PLUS
 B) reasonable belief that the person is home (officer’s belief. For search warrant for a person, magistrate would have to sign off on
this belief. In this way, an arrest warrant is not as protective as a search warrant bc magistrate doesn’t have to weigh in on belief.)
o Determining the difference:
 Threshold of door or outside house = public (Santana)
 Can police trick D outside? Depends on jurisdiction.
o 3) In Third-Party’s Home (Steagald)

 Need search warrant for Lyons in Steagald’s house, plus (arguably) arrest warrant for Lyons (concerned with S’s privacy)
• Lyons doesn’t have standing to challenge the lack of a search warrant for the third party home, only S does.
o Spouses/Roommates: Spouses and roommates’ REOP is watered down bc sharing REOP with D. So only arrest warrant required.
o Overnight visitors: Overnight guests have REOP, so need an arrest warrant. [What about the homeowner’s rights? No case on this! Homeowner
might become like a roommate for the night, meaning only arrest warrant is required.]
o If arrest is made without warrant, D is entitled to prompt hearing on PC determination (Riverside – within 48 hours)
∆ at a restaurant (Watson) Homeowner or overnight guest Third party premises (Steagald)
(Payton/Olson)
NO reasonable expectation of privacy Reasonable expectation of privacy Reasonable expectation of privacy
NO arrest warrant req. (no search warrant) Arrest warrant Search warrant req. (and arrest warrant)

- 2. Minimally intrusive (Terry stops & frisks) [Exception to warrant and PC reqs] = Where 4th Amendment violation is only “minimally intrusive,”
court will look to reasonableness. Balancing test btw gov’t interest and privacy intrusion.
o What do police need? (Terry)
 Stop = Reasonable suspicion of a crime (interest = preventing crime)
 Frisk = Reasonable suspicion that person is armed and presently dangerous (interest = officer safety)
o Source of RS can be informant, even anonymous informant (Adams)

 Totality of circumstances – slightly lower standard than PC – if tip is predictive and police can corroborate a lot about it, even if some
of it is wrong, that will be enough (White, FL v. JL). {Exception: BOMB cases – cops can stop with only a tip!}
o Bright-line Rules:
 It is always reasonable to order a driver (Mimms) or passengers (Wilson) out of a car if traffic stop was authorized
 It is always reasonable to look at VIN beneath papers (Class)
 If police are executing a search at a house, they can require occupants to stay on premises while warrant is executed (Summers). Can
use reasonable force in a reasonable way to require occupants to stay (Muehler)
o Mendenhall Free to Leave Test: Would a reasonable person feel free to leave (i.e., free to terminate encounter)? (Objective test)

 If yes  No 4th A. problem (mere encounter –police don’t have to justify it)
 If no  Seizure must be reasonable
• Factors: Threatening presence of several officers, display of weapons by officers, physical touching by officers,
intimidating tone of voice
• Police do NOT have to tell them that they are free to leave (Bostick)
o Seizures by show of authority: doesn’t occur until D is caught or stops running. Pursuit itself is a MERE ENCOUNTER. (Hodari D.)

 Unprovoked flight from cops is suspicious (Illinois), and can rise to level of RS if combined with other factors
o Passenger in a stop has standing to challenge the stop (if stop was illegal, because seized, but not standing to chall search (Brendlin).
o Profiling: Are the facts suspicious? If they are, then it’s enough for RS even though there is a profile out there.
o Collective knowledge doctrine: Police can rely on info from other officers on RS w/out needing to know reasons for the suspicion.
o Quantum of suspicion: Is it enough stuff, even when innocent, that when you take it in combination, it makes you comfortable justifying the level
of intrusion against that person? Does it narrow the world of people that are going to be stopped? (Sokolow) Can’t be overly broad! (Beck – CA)
o Relevance of race: Courts have generally said that it can be part of the mix but cannot be the deciding factor!
o Scope of stop (if goes beyond this  turns into a constructive arrest!):
 1) Time: no unnecessary delay – depends on the circumstances (Sharpe - where source of delay is D, then it’s not unnecessary delay)
 2) Movement: If bringing to stationhouse  Arrest; if bringing elsewhere, might also point to arrest. So be careful moving a suspect!
 3) Investigation: Can always ask for ID and can always ask questions related to stop. For questions outside scope of stop, depends on
whether it creates unnecessary delay (Depends on jurisdiction). Cops may try to bring it back to mere encounter before asking.
 4) Mendenhall Factors (Threatening presence of several officers, display of weapons by officers, physical touching by officers,
intimidating tone of voice)
o Scope of Frisk: ONLY TO LOOK FOR WEAPONS. If PO doesn’t think it’s a weapon, has to stop unless he has PC for full search. The scope
has been extended to passenger compartment of car (incl. accessible purse, & even if D is outside) and protective sweeps, but not search of trunk.
o Place - Okay to temporarily detain property w/out a warrant during a stop in order to investigate circumstances, but must be r’ble amount of time.
- NOTE: Pretextual Stop and Arrests
o Gov’t can use traffic stop as pretext to stop car and find out what’s going on (Whren).
o During a traffic stop, they can:
 Order you and passengers out of car, & they can do a frisk of the person and the car if they have reasonable suspicion to believe that
he is armed and presently dangerous.
 If they arrest you for a traffic misdemeanor, they can do a search incident to arrest.
 Do a dog sniff for drugs, if it doesn’t necessarily delay.
 Ask you questions, and some courts have held they can ask you about unrelated topics (e.g., drugs) if it doesn’t unnecessarily delay.
 Ask for consent to search your car.
o Racial profiling - states have had police officers now keep track of who they are stopping. So in many jurisdictions, if they do a Terry stop or any
kind of seizure, they have to write it down.
- 3. Search Incident to Arrest [Exception to warrant and PC reqs] (Robinson)
o Rule: If there is a lawful custodial arrest (PC), that in and of itself justifies searching the person and his grab area, including containers
o Even if it’s a state non-arrestable misdemeanor, because it was labeled a misdemeanor, the court said it could be the basis for a lawful custodial
arrest, and could invoke a SIA (VA v. Moore). If PO has discretion to arrest or give citation, has to arrest to trigger SIA (Knowles).
o Bright-line rule: For SIA, you can search passenger compartments of car (incl. containers) but not trunk (even if Ds are outside car). (Belton)

 Thornton extends Belton even further – says that all that matters is that he HAD been an occupant to the car prior to the arrest.
 Arizona v. Gant - limits, but does not reverse Belton
• holds that Belton is only triggered when:
o D, at time of arrest, is w/in reach of passenger compartment, or
o Based on the facts of case, if its reasonable that car contains evidence of crime for which D was arrested for.
o Grab area extends with movement of the D (Chrisman – arrestee goes back to dorm room).
o Just because the formal arrest follows the search, don’t take the search incident to arrest doctrine off the table! If it’s roughly
contemporaneous, then it can still be a search incident to arrest. What matters is whether there was P.C. to arrest before the search
o If PO is frisking for weapons and feels what he knows is a crack pipe – that’ll be enough for PC, so can take it out based on SIA!
o Court in Edwards justified search of clothing to find paint chips as SIA – but this doesn’t mean they can always search/seize later if they could do
it at time of arrest. Here, it’s justified because D was still in custody at the time they searched his clothing.
- 4. Exigent Circumstances [exception to warrant req, not PC req]- recognizes that sometimes circumstances make it reasonable to go ahead with
search/seizure without a warrant (case-by-case basis)
o Concerns:
 Suspect escaping (e.g., if there is PC for a robbery suspect and he runs into a house during hot pursuit)
 Public safety/officer safety (e.g., domestic violence calls; OJ; Brigham City – cops go into loud party)
 Risk of destruction of evidence (e.g., Illinois v. McArthur – cops prevent D from going inside til they get warrant for drugs)
o No creating exigency: Cops cannot create exigency by, for example, letting suspect back into house if he’s outside, which would mean they’d
then have exigent circumstances to search the house if they believe there is a risk of destruction of the drugs (but no Sup. Ct. case on this).
o Not for minor offenses: Welsh v. WI – can’t justify exigent circumstances where it’s a non-criminal offense.
- 5. Automobile Exception [exception to warrant req, not PC req] Carney justifies this with two reasons: 1) the car CAN move, so we might lose evidence;
and 2) there is a reduced expectation of privacy in a car.
o To rely on auto exception, gov’t needs:
 Probable cause to believe the car contains something seizable +
 Car has to be used on highways or readily capable of such use +
 Not being used for residential purposes
o THE AUTO EXCEPTION EXTENDS TO ANY CONTAINER IN AUTO LARGE ENOUGH TO CONTAIN WHAT THE GOV’T HAS
PC TO SEARCH FOR (including trunk). Acevedo - It doesn’t matter if the PC is for a container that just happens to wind up in the car – that’s
still okay! Once the container is in the car, they have PC to search the entire car.
o The scope of the search is the area where the thing they are looking for might be found.
- 6. Special Needs Exception [exception to warrant and PC reqs  back to reasonableness!] Balance between gov’t interest and intrusion to individual
o Where the purpose of the 4th amendment intrusion goes beyond ordinary law enforcement (OLE), this triggers special needs exception.
 Court looks at factors in balancing: Skinner - Minimal discretion of gov’t actors carrying out the program; consequences of the
activity the gov’t is seeking to avoid are high; minimally intrusive; documented drug problem within a group; reduced expectation of
privacy; no evidence of pretext for ordinary law enforcement; people are on notice. In Chandler, the need for documented problems or
dire consequences becomes more ingrained.
 In Ferguson, the court held that the intention of the program is what matters. Cannot have the purpose be OLE.
 Schools – Safford v. Redding - based on a reasonable suspicion, search measures used by school officials must be "reasonably related
to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction
- 7. Roadblocks, Checkpoints, and Suspicionless Searches [exception to warrant and PC reqs  back to reasonableness!] Balancing test again
o Discretionary automobile stops absent reasonable suspicion are unreasonable (Prouse), except for roadblock stops! Sitz - special exception for
roadblocks  r’ble bc gov has strong interest in making sure drivers aren’t drunk, and intrusiveness is minimal.
o After Edmond, the purpose of the roadblock becomes VERY IMPORTANT. The primary programmatic purpose has to be something
connected to the road (e.g., DUI checkpoint, gathering info a la Lidster). Can’t be OLE, but OLE can be secondary purpose.
o Police have discretion where/when to do roadblock, and whether there is RS warranting further search. But no discretion on who to stop.
- 8. Inventory Searches [exception to warrant and PC reqs]
o Inventory searches based on community caretaking function are ok – don’t need RS or PC!
o There has to be a lack of discretion, a.k.a. a policy that tells P.O. when and what they can inventory (car, personal prop, containers).
o Justifications for allowing inventory searches: a) protecting police against property claims (securing valuables so they don’t get sued); b)
protecting property of the owners; and c) protecting police and public from anything dangerous that might be in the car
- 9. Border Searches [exception to warrant and PC reqs] Gov’t has inherent authority to regulate at border, + people have reduced EOP.
o Routine searches at border or functional equivalent = inherently reasonable
o Non-routine searches (highly intrusive) of persons at border or functional equivalent (e.g. strip search) = require RS (acc. to lower cts?)
o Non-routine searches of property = inherently reasonable, so long as they do not destroy property (this will require R.S.)
o Searches away from border  back to traditional 4th Amendment principles! [Roving patrols doing discretionary stops need R.S.; searches need
PC; Discretionless fixed interior checkpoints, like roadblocks, don’t need RS (except they need PC once they decide to search)]
- 10. Consent Searches [exception to warrant and PC reqs] = Requires VOLUNTARY waiver of 4th Amendment rights. (NOT KNOWING OR INTELL)
o TOC: 1) Lack of knowledge about right to refuse; 2) Custodial status; 3) Time (the more time going by, the more this weighs in D’s favor
for showing coercion); 4) Use of force/show of force/threatening tone; 5) Extent and level of D’s cooperation with the police; 6) Number
of officers on the scene; 7) D’s belief that evidence will be found; 8) D’s level of intelligence and education, age, etc.; 9) Threats; 10) Lies.
 Threats are okay if they are true; not okay if they are empty. What if cops have PC to arrest but not to search and they try to bargain
for consent? Seems like this would be allowed, so long as the statement is truthful. Lies about reason for search are prob also okay.
o Third-Party Consent: Third-party consent is allowed where the third party has actual or apparent authority.
 Consent is valid so long as person has shared authority over the property. Can only consent to a search of those areas.
 Can’t get consent from third party if actual D is present and protesting (Georgia) – but ok if D is absent!
 Apparent authority exists when it is reasonable for POs to believe that a third party has actual authority (will depend on facts)
o Scope of search depends on the purpose of the search and what the consenter thinks the police are reasonably allowed to search/do. Consenter can
limit the scope of consent without it being suspicious in and of itself.
- 11. Plain View/Touch [exception to warrant req for a SEIZURE]
o Requirements:
 1) Must see thing (incl. person) from lawful vantage point;
 2) Must have physical access to the thing;
 3) Seizability of the thing has to be readily apparent or already established. (NEED NOT BE INADVERTENT)
o Plain view doctrine only authorizes seizures, not searches! So can’t pick up fancy stereo to get serial #s when don’t have PC! (Hicks)
- 12. Private Actor: If a private actor searches an individual’s property then notifies POs, the POs can search w/o a warrant but cannot exceed the intrusion
conducted by the private actor (may reopen). But POs cannot avoid the 4th Amendment by engaging private actors as agents (directly or indirectly)!

REMEDY FOR 4TH AMENDMENT VIOLATIONS: EXCLUSIONARY RULE (Rationale is deterrence on a broad & narrow level, & judicial integrity)
- If violation is not only unreasonable but also shocks the conscience, it’s a violation of due process and the D gets suppression WITHOUT the exceptions.
- Without an exception, D gets suppression not only of illegally seized evidence, but all derivative evidence (all evidence that the gov’t wouldn’t have found
but for the 4th Amendment violation). Mapp applies this exclusion remedy to the states. This doctrine is NOT constitutionally mandated, but the courts have
created it to give the 4th Amendment real meaning.
EXCEPTIONS:
1. Standing = D only has standing to challenge the violation if he personally had reasonable expectations of privacy in the area searched (Rakas v. IL)
Trespasser Non-Trespasser Carter (commercial visit) Dinner Guest Overnight Guest Steagald
------------------------------------------NO REOP---------------------------------------------I--------Yes REOP?----------I------------------REOP--------------------------------------
In Carter, court held that, based on facts, he did not have REOP in the house for 2½ hr cocaine trip (Rehnquist). Scalia & Thomas – Overnight guest is floor; Kennedy:
Dinner guest is floor; Ginsburg, Stevens and Souters – Non-trespasser is the floor; Breyer – Non-trespasser is floor but this was not a search. (So 5 votes for dinner
guest being the floor if that comes to the Sup. Ct.?)
- Ds have to be careful when arguing REOP in the area, because if they lose motion to suppress, they can be impeached if they try to claim they’ve never been there.
(this also applies to disassociation with property)
2. Attenuation = the evidence at issue is not really derivative of the constitutional violation; the causal chain has become broken.
- Factors (Brown): 1) Whether D was given Miranda rights (but this alone is not enough!); 2) Temporal proximity between violation and confession; 3)
Intervening circumstances, such as a) act of free will, or b) length of the causal chain (though you can have a long causal chain!); 4) Purpose and flagrancy of
officer misconduct; and 5) Live testimony, such as from cohort who wouldn’t have testified without action of D (gov will always argue attenuation!)
- For a Payton violation (where cops have PC but no warrant and arrest in home), a confession made outside the home is too attenuated to be suppressed (Harris); but if
they violate Payton and find drugs in the house, then those drugs may be suppressed. D has a better argument if he confesses after they find the drugs.
3. Independent Source Doctrine = where gov argues that evidence is not fruit of poisonous tree but rather the fruits of some other tree; i.e., they had a lawful basis for
the search. Murray – cops have PC to search a warehouse, so they do and find drugs; then they get a warrant (with only the PC they ALREADY had before the illegal
search), return and find the drugs. {Dissenters are concerned about confirmatory searches becoming prevalent under IS doctrine}
4. Inevitable Discovery Doctrine = Gov. argument that even without the 4th amendment violation, there inevitably would have been an independent source.
Speculative. Nix v. Williams – gov’t won because they showed by preponderance of the evidence that the victim’s body would have been found without the confession.
5. Impeachment and Other Categorical Exceptions: Exclusion is N/A for: 1) Non-criminal proceedings, except civil forfeitures; 2) Habeus corpus proceedings; 3)
Non-trial portions of a criminal case, such as bail hearing, grand jury, probation hearing; 4) Impeachment = to impeach D (AND ONLY D), illegally seized evidence
can come in (Walder), whether on direct or cross (Havens).
6. Good Faith Exception: Where someone outside the executive (e.g., the magistrate, an unconstitutional statute) makes a mistake re: the warrant and a reasonable
police officer relying on that mistake could believe in good faith that the warrant was proper (NY doesn’t follow this exception). [Herring is pending – PO clerk
mistakenly tells arresting PO that there was a warrant in system for D – 11th Cir. says this could still be good faith bc PO acting outside of scope as PO!]
 BUT Good faith does NOT apply where: a) it’s the officer’s own determination of PC; or b) the officer has put false info into the affidavit and have done
so knowingly or recklessly; or c) the officer knew the magistrate wasn’t doing his job; or d) the affidavit is so lacking in PC that no r’ble officer could have
believed it was valid; or e) the warrant is facially invalid (e.g., no particularity).
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II. SELF-INCRIMINATION AND CONFESSIONS: There is a privilege against self-incrimination in the 5th Amendment – applies criminally.
Threshold ques: Is it within scope of 5th Amendment?
- Applies only to testimonial evidence (so blood samples aren’t a violation – Schmerber; same with breathalyzer, line-up, etc.)
o Testimonial evidence = it reveals the contents of the D’s mind (PA v. Muniz).
- What does the privilege mean? 1) Prosecutor can’t call D to the stand; 2) Witnesses can invoke it; 3) Doesn’t include name (at least without showing that it
will incriminate you); 4) There can’t be adverse comments to the jury in a criminal trial if D doesn’t testify.
Losing the Privilege: Immunity – Prosecutor can offer immunity to one party of a crime in order to get them to testify against the other
- Transactional immunity = binding promise by the gov’t that D will never be charged with this crime.
- Use and Derivative Use immunity = promise by the gov’t that they will not use statements or derivative evidence against D (this is the only thing that is
necessary for a defendant to lose the 5th Amendment privilege unilaterally. Meaning if they get the derivative evidence elsewhere, D can still be charged!).
- All Immunized testimony CANNOT be used against a defendant for impeachment purposes (but can be used in a trial for perjury if D lies).
1) CONFESSIONS & DUE PROCESS: Challenging a Confession Based on Due Process: HAS TO BE GOV’T MISCONDUCT
- Totality of the circumstances test to determine whether a confession is VOLUNTARY; if it’s involuntary, it violates DP.
- TOC Factors include: 1) Physical Force or Threats of Physical Force; 2) Psychological Pressure (incl. isolation, length of interrogation, using friends
against them, depriving them of food); 3) Individual characteristics of D (age, education, psychological vulnerabilities); 4) Promises of leniency
- Gov’t action has to be involved to make a confession involuntary under DP – if it’s not tainted by gov’t, it’s voluntary! (Connelly – crazy guy).
- MUST SHOW product of coercive police conduct – otherwise admissible
- Gov’t will tend to argue that Miranda rights are an indicator of voluntariness.
- Involuntary confessions and their fruits CANNOT be admitted even for impeachment purposes.
2) CONFESSIONS & MIRANDA: Challenging a Confession Based on 5th Amendment/Miranda: No CI allowed unless D receives & waives 5th A. rights!
- Miranda holdings: 1) It tries to equalize the r’ship between Ds and cops by making confessions that would pass muster under DP invalid under Miranda
(concern about fairness); It creates the rule that Miranda warnings must be given to Ds under custodial interrogation (right to remain silent, right to an
atty); 3) It creates the 5th amendment right to counsel with the irrebutable presumption that, if D is not told of his rights, what he says is involuntary! The 5th
A. right to counsel is meant to help the D decide whether to speak or not. [Some say Miranda doesn’t go far enough, as cops don’t mind the bright-line rule.]
- After Miranda, court initially leaned away from saying it was a constitutional rule, instead saying it’s a prophylactic. But Dickerson comes along and says
that Miranda IS a real constitutional rule and therefore cannot be overturned by Congress.
- Miranda is a trial right (Chavez)
Requirement 1: Custody
- Custody = the deprivation of freedom of action in any significant way (Miranda).
- Terry stops aren’t custody for Miranda purposes (Berkemer).
- Being at police station doesn’t mean you’re in custody – could be there voluntarily with freedom not restrained in any way (Oregon v. Mathiason). What
matter is the deprivation of freedom – so could be typical formal arrest or de facto arrest (meaning it goes beyond a Terry stop or mere encounter. If they tell
D he has to come with them, that could lean toward de facto arrest; if they tell him he doesn’t have to, lets him take own car, this leans away).
Requirement 2: Interrogation
- Interrogation = express questioning or its functional equivalent—any words, conduct that an officer should know is reasonably likely to elicit an
incriminating response (not interrogation if cops ask D about burglary of his own house and this winds up incriminating him).
o RI v. Innis – court held that cops were not interrogating where they were discussing how sad it would be if children found his gun. But they might
have been interrogating if they knew he was particularly susceptible to this type of information (e.g., the Christian burial case).
- Confronting suspect with incriminating evidence is interrogation (Edwards); Recording statements to wife is not (Mauro).
- Not interrogation: (1) Booking questions (even where answer incriminates you, e.g. domestic violence cases, unless ques was designed to elicit incriminating
reply); (2) Undercover investigations (Perkins – cellmate is working for gov); (3) Request for consent to search house (acc. to lower courts);
Exceptions to the Miranda Rule of Exclusion:
1. Impeaching the Defendant-Witness – Miranda-defective statements CAN be used to impeach the D (Harris). Silence after Miranda warnings cannot be
used to impeach, but using pre-arrest or pre-Miranda silence doesn’t violate DP (Jenkins/Fletcher – D never mentions self-defense claim before arrested).
2. Fruits of a Miranda Violation – Fruits of a Miranda violation CAN be used. So the testimony of a witness who had been introduced by D’s Miranda-
defective statement would still come in (Tucker). Also Elstad: D’s 2nd confession isn’t fruit of 1st Miranda-defective confession. However, where a cop
interrogates first & Mirandizes second within one continuous interrogation as part of strategy, the second part of the interrogation is inadmissible (Siebert).
3. Public Safety/Emergency Exception - A Miranda-defective confession is admissible when obtained during an emergency situation that made the Miranda
warnings impracticable (e.g., police chase D into store and he has an empty holster – they need to ask where gun is without mirandizing).
Waiver of Miranda rights
- Waiver is valid if it is done voluntarily, knowingly, and intelligently (strange, considering court’s desire to have bright-line rules). GOV’T’S BURDEN.
o Knowing/intelligently = D knows the rights contained within the warning, regardless of whether he understands full implications/strength of case
against him (Barrett). But D will possibly win under Miranda where he was drunk and argues he couldn’t cognitively process his rights.
o Voluntarily = same as Due Process inquiry
- Waiver can be implied; doesn’t have to be express (NC v. Butler). Events occurring outside of the presence of the suspect and entirely unknown to him have
no bearing on the defendant’s capacity to comprehend and knowingly waive (e.g. family hires a lawyer).
Invocation of Miranda rights
Right to Silence: If D invokes his right to silence, it must be “scrupulously honored,” but to scrupulously honor does not require a permanent cessation in questioning.
Rather, important factors include: (1) cooling-off period, where D is separated from pressure of CI; (2) re-mirandizing; (3) different PO (Michigan v. Mosley).
Right to Attorney: Edwards rule: If D invokes his right to an atty, a subsequent waiver will not be valid unless: (1) D gets atty (and is present during CI (Minnick));
OR (2) D initiates conversation (OR v. Bradshaw). The factors that revoke an invocation to right of silence are not enough here!
- *When assessing invocation of rt. to atty, first figure out whether it’s a real invocation of the right. Ambiguous requests (i.e., “Maybe I should talk to a
lawyer?”) will NOT trigger Edwards protection (Davis), nor trigger a duty for police to clarify/inquire further. Inarticulate yet clear requests, however, (i.e.,
“Uh yea I’d like that”) do trigger Edwards (Smith).
- *D must also be facing the pressures of CI in order to invoke his Miranda rights! (McNeil). Can’t anticipatorily invoke. So if he is being arraigned and asks
for lawyer during arraignment, he is invoking the 6th Am. right to atty, NOT the 5th Am. right.
- *5th Am. right to atty is NOT offense-specific – meaning cops CANNOT question D on that particular offense OR any other offense (AZ v. Roberson). This
protection ends when D is no longer in custody. If D is let go and then re-arrested, the whole thing starts over again.
3) CONFESSIONS & 6TH AMENDMENT: Challenging a Confession Based on 6th Amendment: No deliberate elicitation allowed after formal adversarial
proceedings have commenced unless: D knowingly, intelligently, and voluntarily waives, OR D initiates convo after invoking! (Massiah)
1 – Have adversarial formal proceedings commenced? If NO, then no 6th Am. problem; If YES, then go to next question.
- Has to be after formal proceedings have commenced, e.g., an arraignment (but not pre-indictment administrative detention - Gouveia).
2 – Is there deliberate elicitation (DE)? If NO, then no 6th Am. problem; if YES, then go to next question.
- Deliberate elicitation is a subjective test (rather than 5th Am.’s objective test). Christian burial speech IS deliberate elicitation, as is Innis. 6th Am. is more
protective than 5th! [Why? 6th Am. is on stronger constitutional grounds, and it takes place after formal charges, which is a defining moment.]
- DOES include undercover agents/secret informants. (U.S. v. Henry – informant has contingent fee arrangement to get incriminating info – this is DE!)
- Informants are okay if they are purely listening posts (Kuhlmann) or if they are purely private actors bringing info to gov’t.
3 – Did D knowingly, intelligently and voluntarily waive the 6th Amendment right to counsel? If D doesn’t invoke right, we look for knowing, intelligent and
voluntary waiver; if D invokes right, then no DE unless D initiates convo (Edwards/Jackson protection). Montejo v. LA – Jackson overruled, D does not need
to initiate anymore, must just be knowing, intelligent, and voluntary
- Waiver of Miranda rights after indictment is enough to waive 6th Am. right to counsel. D doesn’t need to be told he has two different rights to a lawyer
(Patterson). However, if cops fail to tell D that lawyer is trying to reach him, then waiver would not be valid under 6th Am (Moran).
- Where D invokes right to counsel at arraignment, he is invoking his 6th Am. rights, and cops cannot DE unless D initiates the convo (MI v. Jackson).
-6th Am. right to counsel is OFFENSE-SPECIFIC. This means that D is protected from DE on the charge on which he invoked, plus on any charges which
have the same statutory elements or is a lesser-included offense. If the charges each require proof of at least one element that the other charge does not, then
the D is NOT protected from DE on that charge unless he invokes on that charge as well (TX v. Cobb).
REMEDIES: Courts distinguish between a pure 6th Amendment violation and a violation of the Edwards/Jackson protection:
- If it’s a pure 6th Amendment violation, then statement and fruits can be suppressed, and can’t be used even to impeach.
- If it’s a Jackson violation, where D invokes right and then subsequently K, V and I waives it (but this is a 6th Am. violation because he didn’t initiate the
convo), then the remedy is narrower  the confession is excluded, but can be used for impeachment purposes.
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III. EYEWITNESS IDENTIFICATIONS: Courts get involved here because IDs are compelling evidence but not as reliable as jurors may think!
1) IDENTIFICATIONS & 6TH AMENDMENT: Attaches after formal proceedings have commenced. Line-up is critical stage, so D needs atty!
- Out-of-court ID: Without counsel present, an out-of-court ID is automatically suppressed (Gilbert - state case). [exception for photo array, below]
- In-court ID: In-Court is presumed inadmissible unless gov’t can show, by CLEAR & CONVINCING EVIDENCE, that there was an independent source.
o Factors: (1) Witness’s opportunity to observe D; (2) any discrepancies between victim’s description and the D; (3) any prior IDs of other people;
(4) seeing pictures of D prior to line-up; (5) time between offense and line-up. (Wade)
- EXCEPTION: Photo arrays. The 6th Am. only attaches if it’s an IN-PERSON line-up. Photo arrays can be shown w/out counsel present bc not critical stage
of proceeding (Ash).
2) IDENTIFICATIONS & DUE PROCESS: Attaches whenever there is an identification procedure, even if no charges yet. Linchpin is RELIABILITY.
- If there is no unnecessary suggestiveness in the ID procedure, then there is no problem! Gov’t will argue that any suggestiveness was necessary.
- If there is unnecessary suggestiveness, then in-court AND out-of-court ID can still come in if an independent source exists for witness’s ID (Neil v.
Biggers - look at Wade factors) or if the ID is still reliable under the TOC. If the ID is not a product of the suggestiveness of procedure, then it’ll be okay!
o Manson v. Brathwaite - undercover PO had good opportunity to view D, saw D directly for sufficient amount of time, was a trained PO and was
paying attention to face, they are of the same race, initial description was accurate, time between crime and ID was only 2 days.
- This applies whether it’s an in-person or photo ID.
- In-court and Out-of-court IDs rise and fall together. [Burke’s case – D was picked up on warrant 7 years after original event. So in-court ID is unreliable but
out-of-court ID, recorded 7 years earlier, could come in.]
Constitutional Dimension Remedy for out-of- Remedy for in-
court ID court ID
6th Amendment right to Counsel *Only after formal proceedings Critical stages (only if in-person ID) Automatic supp. Reliability
Due Process Bars unnecessary suggestiveness (If no unnecessary suggestiveness, then no Reliability Reliability
problem!)
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IV. RIGHT TO COUNSEL:
Scope: D has right to counsel where incarceration is actually imposed (even for just 1 day). If state gives up ability to ask for jail time, no lawyer necessary. But when D
gets suspended sentence and probation, need to appoint lawyer. When right does attach, attaches only for critical stages (not photo ID or forensic tests).
Post-trial stages: Relies on DP and EP (bc 6th Am. doesn’t discuss appeals). If jurisdiction provides right to appeal, then effective assistance of lawyer must be
provided for that appeal, and court can’t require D to pay for necessaries of that appeal (such as transcript of lower ct) (Griffin, Douglas). If atty thinks appeal has no
merit, atty must write up Anders brief listing support of appeal (or reasonable alternative according to state law). No right for discretionary appeals.
Effective Assistance of Counsel (Most often a collateral proceeding): To show ineffective assistance of counsel, D must satisfy both prongs of Strickland test:
(1) Deficient Performance of Counsel = D cannot satisfy this prong if lawyer gave an objectively reasonable performance. So deficiency can be very hard to prove!
Gov’t will re-cast lawyer’s choices as strategic (e.g., Strickland – atty fails to get psychiatric report because chose strategy of D owning up to crime). Court is more
willing to find deficiency where lawyer:
(a) is ignorant of the law (Kimmelman – atty didn’t request discovery bc he didn’t think he had to!);
(b) fails to investigate (Wiggins - atty didn’t investigate mitigating factors; Rompilla – atty didn’t get police reports from prior offenses). However, atty is
limited by his reliance on D’s version of the facts. If D is lying, D will have harder time proving ineffective assistance.
(c) sleeps on the job – literally (some courts will presume the second prong is met automatically if this happens, but others won’t.
(2) Prejudice (i.e., some reasonable probability of a different result in the proceeding) = Sometimes courts will look at this prong first if it is obviously not met.
- EXCEPTION: Per se prejudice = Sometimes, courts won’t require D to show prejudice where lawyer’s ability to defend is very flawed (Cronic):
o (1) Where trial is deeply flawed under TOC. Factors: (a) time lawyer given to prepare for trial; (b) how complicated the case was; (c) how
experienced the lawyer was; (d) the gravity of the charge; (e) the accessibility of the evidence;
o (2) Where lawyer has a conflict of interest and court knew and didn’t give D separate counsel.
Right to Self-Representation (i.e., the right to waive the right to counsel): If court denies D the right to represent himself and appoints him a lawyer, that D gets per-
se reversal (Faretta). Requirements of invocation: (a) D must be competent, (b) waiver of right to counsel must be knowing and intelligent, and (c) the invocation of
right to self-representation must be unequivocal.