Criminal Procedure I Final Outline THE FOURTH AMENDMENT Basics of the Fourth Amendment Does not apply to private

activity  The Fourth Amendment regulates state action, but does not limit private individuals acting on their own initiative.  The Fourth Amendment is not implicated if the search is conducted by private actors not acting as agents of the government. Applies to all government agents, not just police officers Evidentiary Search and Seizure The fourth amendment prohibits the government from conducting unreasonable searches (intrusions into a persons place of privacy) or seizures (exercise of control by the government over a person or a thing) To be reasonable, most searches must be conducted pursuant to a warrant. When conducting a search, police may usually look for:  Instrumentalities of crime  Fruits of crime  Contraband  Evidence of crime Reasonable expectation of privacy requirement:  A defendant can raise a Fourth Amendment claim only if he has standing and a reasonable expectation of privacy that society is willing to accept.  Determined using a totality of the circumstances analysis  Standing: y Must have a legitimate expectation of privacy o Assessed under totality of the circumstances y Situations where the USSC has found standing when the search was: o In the defendants home o In a place the defendant was staying overnight with the owners permission o A place the defendant had a right to possess o That a defendant might be aggrieved by evidence seized by a coconspirator does not automatically give the defendant standing; must show that his own expectation of privacy was violated o Mere ownership of the property seized is not enough  Exceptions to having a reasonable expectation of privacy:  Items held out to the public y There can be no reasonable expectation of privacy in items held out to the public o EX:  Handwriting, voice, bank records, location of car on public streets, telephone numbers dialed 1

Open Fields Doctrine o Areas outside the curtilage of a home are considered to be held out to the public so searches of such areas do not violate the Fourth Amendment  Factors used to determine curtilage: y Areas proximity to home y Existence of enclosure around the area y The nature of the use to which the area is put y The precautions taken to exclude others from the area o Outbuildings could be considered protected by the curtilage of the house depending on the nature of the use of the building y Fly-overs o Items that can be viewed from legal airspace are subject to warrantless searches even within the curtilage  Vision Enhancement: y USSC has ALLOWED warrantless use of powerful cameras (that are generally available to the public) to take photographs from legal airspace of industrial fields y USSC has PROHIBITED the warrantless use of senseenhancing technology (i.e. thermal imaging cameras) to gain information from the interior of a home that could not otherwise have been obtained without physical intrusion y The use by officials of devices which aid their investigation by enhancing the senses does not constitute a search so long as the devices do no more than aid the police in obtaining information that they could have obtained through their own sensory perception o Factors to consider:  Was the information obtained using technology such that could not be obtained otherwise without being physically present in the home?  Was the technology readily available to the general public? y Contraband o There is no legitimate expectation of privacy in contraband o There is no unconstitutional search when contraband in luggage is sniffed out by a narcotics detection dog o An exploratory manipulation of a bag may be consider violative Searches Conducted Pursuant to a Warrant  Warrant Requirement:  Warrant is needed for a search or seizure (unless the action is within one of the established exceptions)  To be valid, the warrant must: 2 y

y Be based on probable cause y Be supported by oath or affirmation y Describe with particularity what is to be searched or seized y Be issued by a neutral and detached magistrate Probable Cause Requirement:  No warrant may be issued until a neutral and detached magistrate has determined that there is probable cause to issue the warrant  Exists if the facts and circumstances within the officers knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place being searched  Elements: y (1) A sufficient likelihood that something that is properly subject to seizure by the government o Must be seizable and in the place they are going to search  EX: contraband; fruits, instrumentalities, or evidence of a crime o Issue of staleness:  The mere passage of time is likely to diminish the probability that an item that was in a particular place still remains in that location  No longer sufficiently supportive of the conclusion that the sought item is currently located in the place to be searched y (2) Is presently y (3) In the specific place to be searched Preciseness Requirement:  A warrant must describe with reasonable certainty and particularity the items to be seized  It is not sufficient that such detail is in the affidavit underlying the warrant  A reasonable error in the description will not necessarily invalidate the search Execution of a Warrant:  Must execute a warrant reasonably  Must knock and announce their authority and purpose unless they have a reasonable suspicion based on facts specific to the particular case, that knocking and announcing would dangerous or futile, or that it would inhibit the investigation y Exigency circumstances must be specific to the situation  Persons on the premises may not be fully searched but may be detained  The search cannot go beyond the scope of the warrant, but an objectively reasonable error in execution does not invalidate a search Exceptions to the Warrant Requirement:  Search incident to arrest (SITA) y The police may search a person without a warrant after a lawful arrest y Such a search may be conducted pursuant to any custodial arrest, even for minor violations of law y Scope of the Search: 3

o The search can be of the person arrested and their lunge area (areas within the persons immediate reach)  Lunge area can include closed containers and is not affected by whether the person is in restraints or not o Protective Sweep:  If the police reasonably believe that dangerous accomplices may be present, they may conduct a protective sweep of the entire area to assure their safety o Automobile occupants:  After arresting an automobile occupant, police may search the entire passenger compartment y Search must be Contemporaneous: o The search must be contemporaneous to the time and place of arrest o A search conducted at a different location and hours after the arrest generally cannot be justified by the arrest exception y Gant Exceptions: o Can search the passenger area of the automobile if the arrestee still has access to it; OR o If there is reason to believe that there is evidence of the crime inside  Evidence of the crime of arrest  Must still be reasonably contemporaneous Inventory y Needs to be conducted pursuant to a routine or standardized police procedure y Cannot be conducted for investigatory purposes y If pursuant to an arrest involving an automobile occupant, the automobile must be impounded legitimately y The individual must have been lawfully arrested y Inventory of a Person: o As soon as the arrestee reaches the police station, an inventory of the person is done o Deters false claims and inhibits thefts or careless handling of articles taken from the arrested person  Arrested persons have been known to injure themselves, or others, with items left on their person  Able to inventory bags of the person as well o A strip search would be unreasonable under the Fourth Amendment Automobile Exception y Must have probable cause to search the vehicle y Automobile must readily mobile y If car is within the curtilage of your home, then the privacy of your home will protect the car o Must be in a public area or on a public street y Gant Exceptions: 4

o Can search the passenger area of the automobile if the arrestee still has access to it; OR o If there is reason to believe that there is evidence of the crime inside  Evidence of the crime of arrest  Must still be reasonably contemporaneous y Acevedo Exceptions: o Search of the vehicle will be limited to the nature of your probable cause o If officers have probable cause to search only a container within a vehicle, they may search only that container Plain View Exception y If officers are legitimately on the premises, they may lawfully seize items that they discover on the premises in plain view that they have probable cause to believe are contraband or fruits or instrumentalities of a crime y The items must be IMMEDIATELY IDENTIFIABLE as contraband y Test: Would a regular person be lawfully situated in the same situation that the police officer would be? Terry Stop (Stop and Frisk Exception) y Investigative detention based on an articulable, reasonable suspicion that criminal activity is afoot o The criminal activity has occurred or is about to occur o JUSTIFIES THE STOP ONLY y Totality of circumstances analysis used in deciding whether to stop and frisk a person y Detention of a person o Length of time it takes to diligently confirm or dispel your suspicion  Length of time: reasonable amount of time y Reasonable Suspicion o Presence in a high crime area alone will not suffice  Presence plus almost anything else will be sufficient o Direct flight will be sufficient to trigger reasonable suspicion y Seizure o Occurs when the police conduct is such that a reasonable person would believe that they are not free to leave  If the person is not free to leave but voluntarily put themselves in that position, then it is not the fault of law enforcement that the person is seized y EX: sitting on a bus o Occurs when there is use of physical force or a show of authority and submission thereto o Becomes more akin to a de facto arrest if:  The person gets moved  Investigative detention extends for a longer period than that which is necessary to confirm or dispel suspicions 5

Frisk o A Terry Stop does not automatically include a frisk o Only permitted if the officer has a reasonable articulable suspicion that the individual is armed or presently dangerous o Limited to the outer surfaces only (pat down)  Cannot reach into pocket or open a bag  Can only reach into garments if he feels a readily identifiable weapon y Traffic Stops o If the police have lawfully stopped a vehicle for a traffic violation, they may search the passenger compartment for weapons if they believe the occupant is dangerous. o They may also order the occupants out of the vehicle and frisk any occupant they reasonably suspect to be armed and dangerous. y Evidence Admissibility Standards: o Evidence obtained during a Terry Stop will be admissible if, based on its plain feel during the frisk, the officer could reasonably have identified it to be a weapon or contraband Consent Exception: y Police may conduct a search without a warrant if the consent was garnered knowingly, voluntarily, and intelligently o Totality of circumstances analysis will be used to determine whether consent was given voluntarily y Consent must not be coerced by: explicit or implicit means, implied threats, or covert force y Trickery may not be used to obtain waiver of a right to search y The search may extend to any object or container that a reasonable officer would understand to be within the scope of the consent granted y Factors Relevant to Voluntariness: o Whether the person consenting is in custody o The presence of coercive police procedures o The extent and level of the persons cooperation with the police o The persons awareness of his right to refuse to consent  *Police are not required to inform the suspect that he has a right to refuse consent o The persons education and intelligence o The persons belief that no incriminating evidence will be found y Third Party Consent o If a third party has access to or control over a private area, he or she is considered to have an independent privacy interest, and the suspect is considered to have assumed the risk that the third party may lawfully consent to a search of that area y 6

o A third partys access may be limited or conditional depending on the circumstances o Marital Relationships:  There is a presumption of common authority over premises jointly occupied by both spouses o Third Party must possess actual or apparent authority  Apparent authority results when police officers reasonable believe that the third party has authority to consent y Police officers have a duty to make reasonable inquiries regarding the third partys claim of authority y Scope of consent: o Ambiguity regarding scope of consent is construed against the suspect  If an officers interpretation of a general or ambiguous consent is a reasonable one, the resulting search will be considered within the scope of the consent  It is up to the suspect to clarify the scope of an ambiguous consent  A search that requires mutilation or destruction of property or premises is considered beyond the reasonable scope of a general consent o Limiting the scope of consent:  If a suspect explicitly limits consent, limitation cannot be considered suspicious by the officer since the suspect is merely standing on his rights o Revocation of consent:  Suspect has a right to revoke consent y Cannot be revoked retroactively after an officer has found incriminating evidence  Withdrawal or limitation of a consent cannot be considered a factor in an officers determination of reasonable suspicion or probable cause  Refusal to give written consent does not constitute the revocation of an oral consent y Good Faith Exception: o The search will still be valid if law enforcement reasonably and in good faith relied on the consent given Exigent Circumstances: y Still requires probable cause to search y No warrant is needed if officers, in good faith, cannot obtain a warrant and need to conduct a search for the protection of others or evidence o EX: in hot pursuit of a dangerous suspect, rushing to the scene of a homicide o EXCEPTION EX: cannot chase an armed subject INTO HIS OWN HOUSE if the officer knows it is his house, must obtain search warrant 7

 No exigency would exist y Involves a condition that leads to making obtaining a warrant unreasonable y Test: o Likelihood that the government interest will be frustrated o The nature and importance of that interest Electronic Surveillance  Any form of electronic surveillance, including wiretapping, that violates a reasonable expectation of privacy constitutes a search  Warrant Requirement:  To be constitutionally valid, a warrant must: y Describe with particularity the conversations to be heard y Show probable cause to believe a crime has been or will be committed y Limit the duration of the wiretap y Name the suspects whose conversations are to be overheard  Exceptions to the Warrant Requirement:  Police do not need to obtain a warrant: y To place a pen register (a device that records numbers dialed from a particular phone) y If the defendant made no attempt to keep his communication private y If the defendant assumes the risk that the person with whom he is speaking is unreliable o EX: government informant o False-friends Doctrine (Katz doesnt apply) Searches in Foreign Countries or at the Border  The Fourth Amendment does not apply to searches and seizures by United States officials in foreign countries when an alien is involved  Border searches:  Permissible without a warrant or probable cause in order to enforce national boundaries  Searches near the border may also be proper on a showing of less than probable cause Administrative Searches  Generally, a warrant is required for a noncriminal-justice search, but the probable cause standard is relaxed and is satisfied by the showing of a general and neutral enforcement plan justifying the warrant  Airport Exception:  No warrant is required to search airline passengers before boarding an airplane  Public School Exception:  School officials need only reasonable suspicion to conduct searches in the school  Reasonable grounds for a search will exist if the school official reasonably believes that the search will turn up evidence that the student has violated a school rule or the law  Random warrantless drug testing of students participating in extracurricular activities has also been upheld  Drug Testing Exception: 8

Where special need is present (i.e. a reason beyond mere drug interdiction) the USSC has not required a warrant when the government performs or requires drug testing of employees or when a public school requires drug testing of students who participate in extracurricular activities Informants: The Use of Hearsay  Aguilar-Spinelli Two-Pronged Test:  Basis of Knowledge y The Court must be able to discern how the informant came by the information  Veracity y There must be some underlying circumstance that leads the law enforcement officer to believe that the informant is credible and can also lead the court to the same conclusion  Reliability y The nature of the information and the person providing the information must be reliable  Test was later overruled in favor of the Gates Totality of the Circumstances Approach  Gates Totality of Circumstances Approach  Aggregate the tip and additional information to find probable cause  Where a tip is corroborated with actual police findings, a totality of the circumstances approach is appropriate for determining probable cause. Arrests and Other Detentions Arrest  A Fourth Amendment seizure occurring when a person is taken into custody against their will  Probable Cause Requirement:  Exists when the facts and circumstances within the officers knowledge and of which they have reasonable trustworthy information that are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested  Elements y (1) A sufficient likelihood y (2) That a particular individual y (3) Has committed or is committing a particular offense  Once you have probable cause to arrest, there is no staleness issue  Effect of an Invalid Arrest:  An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution, although evidence found during a search incident to an unlawful arrest will be suppressed  Arrest Warrant Not Required Except for Home Arrests:  A warrant not required to be obtained prior to an arrest in a public place as long as there is probable cause  Arrests in Public Places:

A police officer may make a warrantless arrest in a public place when they have reasonable grounds to believe a felony has been committed by a particular person or when a misdemeanor has been committed in their presence  Arrests in the Home:  Warrantless arrests in the home are unreasonable and invalid under the Fourth Amendment unless exigent circumstances are present or the arrestee consents  Hot Pursuit Exemption: y If probable cause exists, the police may, without a warrant, pursue a suspect into his home if necessary to prevent the suspects escape or destruction of evidence  Knock and Announce Requirement: y A police officer must announce their authority and purpose before using force to enter a home to make an arrest y Officers must: o Audibly know or otherwise make their presence known at the outer door to give notice to the occupants that officers are present o Announce the identity of the executing officers  This is the police o Announce the purpose of the executing officers  We have a warrant o Delay for a period of time sufficient to permit the occupants to reach and to open the door  Depends on size of the house, number of occupants, etc.  Reasonable time y Officers are only allowed to make a no-knock entry if the officers have a reasonable belief that an announcement would: o Endanger the officers o Prompt a suspects escape o Allow the destruction of evidence  Third Party Premises: y A search warrant is required for the arrest of a suspect in another persons home  Obtaining a Warrant: y To obtain an arrest warrant, a police officers affidavit, containing facts showing the commission of an offense and the accuseds responsibility for it, must be presented to a judicial officer who determines its sufficiency Use of Force to Arrest a Fleeing Felon  Use of deadly force constitutes a seizure and must be reasonable  Elements:  Must be necessary to prevent the felons escape; AND  The felon must be threatening death or serious bodily harm  When feasible, some warning must be given before an officer may use deadly force Stops and Other Detentions:  Terry Stops  SEE ABOVE 10

 Automobile Stops  The police may not stop a single vehicle for the sole purpose of checking the drivers license or the vehicles registration unless they have reasonable suspicion  Pretextual Stops: y If an officer has probable cause to stop a vehicle, the officer may do so even if the officers motive is to investigate whether some other law- for which the officer lacks reasonable suspicion- has been violated  Roadblocks: y USSC has upheld roadblock searches that are made without individualized suspicion that the driver has violated some law y The roadblock must stop cars on the basis of some neutral, articulable standard o EX: every car, every third car, etc. y The roadblock must be designed to serve purposes closely related to a particular problem related to automobiles and/or their mobility o EX: Drunk driving  Police that have lawfully stopped a vehicle may order the vehicles occupants to get in or out of the vehicle  Police Station Investigations  Generally, police officers must have probable cause to bring a suspect in for questioning or fingerprinting Remedies for Fourth Amendment Violations The Exclusionary Rule o Provides that evidence obtained in violation of a defendants Fourth Amendment rights must be excluded from trial in both federal and state courts o Is a court-made rule designed to deter future violations of the Fourth Amendment, and a court is not constitutionally required to excluded illegally obtained evidence Standing to Invoke the Exclusionary Rule o The standing requirement provides that a defendant cannot obtain exclusion of evidence unless his OWN personal Fourth Amendment rights were violated o Reasonable Expectation of Privacy  Must determine whether a person has: y A legitimate expectation of privacy in the area or thing that was searched; OR y A legitimate possessory interest in the thing that was seized  Burden on the Defendant: y The defendant bears the burden of proving that he had a legitimate expectation that was violated by the challenged search and seizure  Possessory Interest in Items Seized is Insufficient: y A defendant does not automatically have standing to contest the search of an area merely because the items seized are owned by the defendant o Generally, will have a right to object to the seizure even if the item is being held by a third party y Disassociation With the Object of the Search: 11

o Where a defendant disavows any knowledge of or interest in property that is being searched or seized, such an action is inconsistent with a reasonable expectation of privacy, and the defendant will not have standing to object to the police activity y Co-conspirator Status: o The mere fact that a search or seizure has occurred with respect to property controlled by a conspiracy does not mean that each coconspirator has standing to object o There is no joint venture exception to the principle that standing is dependent on a violation of ones own personal Fourth Amendment rights o Factors to be considered when proving that a defendants Fourth Amendment rights have been violated:  Property ownership  Whether the defendant has a possessory interest in the thing seized  Whether the defendant has a possessory interest in the place searched  Whether the defendant has the right to exclude others from that place  Whether the defendant has exhibited a subjective expectation that the place would remain free from governmental invasion  Whether the defendant took normal precautions to maintain privacy Exclusion of the Fruit of the Poisonous Tree o A defendant often seeks exclusion of the very evidence that was found in an illegal search or seizure  Called direct or primary evidence o The defendant may also challenge the admission of evidence that was derived from an initial illegality  Called derivative evidence or fruit of the poisonous tree o Exceptions:  Attenuation: y The link between the illegal search or seizure and the evidence obtained is so attenuated that the evidence can no longer be meaningfully considered tainted or the fruit of the poisonous tree y Cost of excluding reliable evidence outweighs the negligible benefit of deterrence y Determined on a case-by-case basis y Test of Causation: o To determine whether there is a sufficient connection between the illegality and the derivative evidence so as to justify exclusion is:  Whether, under the totality of circumstances, the evidence has been obtained by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint. y Relevant Factors in Determining Attenuation: o (Government has the burden of proving that the causal chain is sufficiently attenuated to dissipate the taint of the illegality) o The giving of Miranda warnings 12

o The time between the illegality and the obtaining of the evidence o The presence of intervening circumstances o The purpose and flagrancy of the official misconduct y Abandonment During the Course of an Illegal Search or Seizure o A suspects decision to abandon property subsequent to an illegal search or seizure may or may not be tainted by that illegality o Factors used to determine if abandon evidence is tainted:  Whether a defendant has sufficient time and opportunity to make a calculated decision to abandon the property y Voluntary act serves to cut off any tainting effect of the illegality  Whether the decision to abandon the property was a spontaneous reaction to the illegal activity y The evidence would be fruit of the poisonous tree despite the abandonment y Testimony of Live Witnesses o An illegal search or seizure may lead to the discovery of a witness who can give testimony against a defendant o Generally, a witness voluntary decision to testify against the defendant will mean that the testimony is attenuated from the illegality Independent Source Doctrine: y Evidence will not be excluded as the fruit of the poisonous tree if the Government can show that it was derived from an independent legal source y The independent source exception admits the fruits of illegally tainted evidence when such fruits are also found by legal means unrelated to the original illegal conduct y Under those circumstances, application of the exclusionary rule would impermissibly place the officers in a worse position than they would have been absent any violation Inevitable Discovery Doctrine: y Allows fruits of the illegal activity to be admitted at trial if the Government can show that the challenged evidence would inevitably have been discovered through means completely independent of the illegal activity y In essence, is a hypothetical independent source exception y Inevitability must be shown by a preponderance of the evidence y Focus on what WOULD have been done, not could have been done o Test: what the police would have done to reach the evidence by independent legal means y Some courts require the police to be actively pursuing lawful means at the time the illegal search is conducted in order to invoke the inevitable discovery exception

THE FIFTH AMENDMENT 13

Privilege Against Self-Incrimination Constitutional Basis:  The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself Scope of the Privilege:  Applicable only to testimonial evidence Eliminating the Privilege:  The privilege does not apply if there is no possibility of incrimination because the witness:  Has been granted immunity  The statute of limitations has run  The privilege has been knowingly, voluntarily, and intelligently waived Confessions Due Process Voluntariness Approach o Statements of a defendant may not be offered into evidence for any purpose at any time if they violate the voluntariness requirement of the Due Process Clause of the Fifth and Fourteenth Amendments o Application:  A judge must determine, by a preponderance of the evidence, that the statement was voluntarily made  Factors: y The defendants personal characteristics (i.e. age, education, intelligence) y The nature of the detention (i.e. conditions of the confinement) y The manner of interrogation (i.e. length and number of sessions) y The use of force, threats, promises, or deceptions o Specific promises will be considered coercion  If a coerced confession is erroneously admitted, a resulting conviction will be overturned unless the error was harmless Sixth Amendment Right to Counsel Approach o Even if a statement is voluntary, it may be inadmissible if it violates the Sixth Amendment right to counsel o Ways to be violated:  After the adversarial judicial proceedings have begun (after indictment), the police question the defendant outside the presence of counsel or without a valid waiver of the right to counsel  The defendant is not explicitly questioned by a police officer, but the statement was indirectly secured by the police outside the presence of counsel  The defendants attorney was not present at the time of interrogation o Charge-specific o Massiah Elements:  The deliberate elicitation of statements by undercover police agents is not allowed y But officers can sit and listen as long as they dont initiate 14

y Informants can sit and listen as well as long as he doesnt ask questions  To conduct questioning: y Police must obtain a Sixth Amendment waiver y If police dont obtain a waiver they may not engage in deliberate elicitation of incriminating statements y Elicitation includes both express questioning and other kinds of police statements that are tantamount to interrogation Fifth Amendment Privilege Against Self-Incrimination Approach o Miranda Warnings  Only applicable in situations involving custodial interrogation  Requires the police to: y Inform the suspect of his rights (to remain silent and to counsel) y Warn him of the consequences of waiving those rights (anything said can be used against him at trial) y Obtain a waiver o Otherwise, generally any confession made by the suspect is inadmissible at trial to prove the suspects guilt  Failure to give warnings: y Public Safety Exception: o A defendants responses to questions asked because of a reasonable concern for public safety may be admissible in court even though the defendant was in police custody at the time of questioning and should have been given the warnings y Subsequent Confession: o A valid confession given after Miranda warnings were given is inadmissible if the question first, warn later nature of the questioning was intentional and intended to get around Miranda requirements y Routine Booking Questions: o Police officers are not required to give Miranda warnings before asking routine booking questions  Reason: it is procedure and not designed or reasonably expected to elicit incriminating evidence  If it leads to the suspect saying something incriminating, then it will still be admissible  Miranda warnings need not be given prior to interrogation by someone whom the defendant does not know to be a government agent  Custody: y Miranda applies only if the defendant is in custody (defendants freedom of movement is limited by the police) when the statement was made y Test: o Objective totality of the circumstances analysis o Would a reasonable person under the same or similar circumstances believe that he was not free to leave 15

o Factors:  The purpose of the investigation  The location and length of the interrogation  The interrogated persons awareness of their freedom to leave the scene  The persons actual freedom from a variety of forms of physical restraint  The use of coercive interrogation methods y Terry Stops: o In their original limited form, Terry Stops were not considered to be custodial, so no Miranda warnings were required o A Terry Stop that becomes more expansive and longer might require Miranda warnings depending on the circumstances y Traffic Stops: o An ordinary traffic stop does not constitute custody, so no Miranda warnings are necessary Interrogation: y A defendants statements are subject to Miranda only if given in response to interrogation o Includes more than just straight questioning o Fifth Amendment Interrogation:  Questions or actions reasonably anticipated to elicit incriminating information o Sixth Amendment Interrogation:  Deliberate elicitation of incriminating information o Test:  Whether the police knew or should have known that their actions were reasonably likely to elicit an incriminating response o EX:  Psychiatric exams to determine competency to stand trial = custodial interrogation  Grand jury question = not custodial interrogation Resumption of Questioning: y If the defendant wishes to remain silent: o The request must be scrupulously honored  The interrogation must stop immediately  Questioning may be resumed only after the passage of a significant period of time y If the defendant requests an attorney: o If the defendant requests an attorney, all questioning must cease, even questioning regarding unrelated offenses, UNLESS the defendant initiates further discussion with the police y Ambiguities in request: 16

o If the defendants request is ambiguous, police may continue questioning the defendant  Waiver: y Miranda rights may be waived y The government must show by a preponderance of the evidence that the defendant knowingly, voluntarily, and intelligently waived the privilege against selfincrimination o Totality of circumstances analysis o Once the warnings are given, the courts usually find waivers to be knowing and intelligent o A waiver can be implied through oral statements and conduct and does not have to be in writing o Silence is not enough o The court may not rely on a presumption that such an understanding exists Impeachment: y Voluntary statements obtained in violation of Miranda may be used at trial to impeach a defendant who takes the stand o Cannot use the defendants statements to impeach a witness other than the defendant himself y Silence may not be used to impeach a defendant who later takes the stand o Unless the silence occurred prior to arrest and prior to Miranda warnings Non-testimonial Fruits of an Unwarned Confession: y USSC would admit physical evidence that was obtained as the fruit of an unwarned confession

THE SIXTH AMENDMENT Right to Counsel The Miranda warnings are sufficient to advise a defendant of bother his Fifth and Sixth Amendment rights. o Waiver of Miranda under the Fifth Amendment waives both Fifth and Sixth Amendments rights to counsel The Sixth Amendment protects against post-indictment questions and deliberate elicitation of incriminating information. o Once you have the right to an attorney, you have a right to that attorney at any crucial stage in the judicial process o Purpose: Defendant is not required to stand alone at any stage of the proceeding where absence of counsel may harm them Is Attorneys Presence Required? o It can be waived Constitutional Limitations on Identification Evidence Pre-Indictment Identifications 17

o The Sixth Amendment does not apply to identifications that occur prior to indictment or formal charge. However, if adversary proceedings are deliberately delayed in order to evade the postindictment rule, the resulting counsel-free identification will be invalidated. o Charge-Specific  It is permissible to hold a counsel-free line-up for an indicted defendant as to a different charge, since being indicted on one charge is not a criminal prosecution as to any other. o Photographic Identification  A defendant has no right to counsel at a photographic identification conducted either preor post-indictment Post-Indictment Identifications o A corporeal, post-indictment line-up conducted in the absence of defense counsel, and without a valid waiver of such counsel, violates the Sixth Amendments right to counsel, which applies during critical pre-trial stages as well as at trial o Per Se Exclusion:  Post-indictment identifications that take place absent counsel are per se excluded from trial  Exclusion is required even if the state can show that the identification is in fact reliable o In-Court Identification and Independent Source:  The same witness whose out-of-court identification is excluded from trial may make an in-court identification if the prosecution proves that, under the totality of circumstances, the in-court identification stems from an independent source sufficiently distinguishable from the previous illegal line-up  Relevant Factors: y The extent of the prior opportunity to view the defendant other than at the illegal line-up y Discrepancies, if any, between the witness description of the suspect before the line-up was conducted, and the defendants actual appearance y The certainty of the witness identification at the line-up or, conversely, the witness failure to identify the defendant on prior occasions y The lapse of time between the criminal act and the line-up identification y The degree of suggestiveness employed in the tainted pre-trial lineup Due Process Limitations on Suggestive Identifications o Where the Sixth Amendment right to counsel does not apply to an identification procedure, the identification must still satisfy the Due Process Clause, which requires exclusion if police suggestiveness creates a substantial risk of mistake identification. o Two-Step Test:  (1) Must show that the identification procedure was impermissibly suggestive  (2) Must show that the identification was unreliable under the totality of circumstances o Exigent Circumstances:  Certain exigent or extraordinary circumstances can make suggestive police procedures necessary and, thus, permissible o Reliability:  An identification may be reliable despite police suggestiveness 18

Suggestive procedures are considered in light of all the circumstances to determine whether an independent source exists for a reliable identification  Relevant factors (not dispositive): y The degree and nature of police suggestions y The extent of the witness opportunity to view the suspect prior to the challenged identification (i.e. at the scene of the crime) y The witness degree of attention to the suspect prior to the challenged identification y The accuracy of the description of the perpetrator given by the witness before the identification y The witness level of certainty at the time of making the identification y The time between the pre-identification opportunity to view the suspect and the identification itself y The character of the identifying witness If the pre-trial identification is excluded, at-trial identification is impermissible

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