Crim Pro 08222012 Due process Miranda Right to counsel Fruit of poisonous tree 4,5,6th Amendments pertaining to Criminal

inal Prosecution and the rights of the D Does not focus on State law but it is important to understand the rights afforded by state constitution that surpass those of federal State courts have to more expansively interpreted their state constitutions. Brown v Mississippi (p 359) 1. D repeatedly hung and whipped until finally agreed to confess to what the deputy described. 2. Give details to the extent that the people hearing can imagine 3. SC ruled confessions were involuntary 4. Admission of involuntary confession abridges due process a. Due process in 5th amendment is for federal b. Also due process in 14th amendment, that is what applies to state and local govt c. Rationale: i. the concern that confession was unreliable. 1. Concern that person was innocent and only reason he confessed was for fear of being killed. 2. Assume dealing w case where there is 100% certitude that person is offender. Lee Harvey Oswald (Ruby killed Oswald on TV) Assume cops were furious, beat him and he confesses. No concern of untruthful confession. Confession still would be out ii. Deter police misconduct. Otherwise would promote lawlessness iii. Contravenes basic societal precepts of common decency. 1. Basic tenant that if police are enforcing the law, they shouldnt violate the law. iv. Respect for free will and that by doing so we are respecting human dignity. v. Inconsistent with our adversarial system of justice. 5. There is a distinction between a volunteered confession (not a product of interrogation) as opposed to a voluntary confession a. Denise just made a volunteered statement. b. Having said that, she can ask questions and our answers are voluntary. c. A volunteered question is one that is NOT the product of questioning i. Can have a voluntary confession even though it is not volunteered. d. If volunteered, it is typically voluntary but reverse is not necessarily true e. Was the D deprived the power to resist? 6. Govt has burden of proof to prove it is voluntary a. Standard is that of preponderance of evidence (more likely than not51% chance) 7. Look at totality of the circumstances

8. If you dont succeed in getting confession suppressed on due process grounds, can still bring out evidence that it was coerced. Pressure not rise to the level depriving power to resist. a. Circumstances that led to confession. 9. Jimmy Childers case. Senior in HS called cops about 0300 and said I went home and couldnt get in and worried abt family. Cops went to house and in looking through backdoor could see body of younger brother and then found mother and step-father dead of stabbing. Jimmy eventually went to PD and repeated statement. Was later questioned again and stated he found family slaughtered and left clothes there and left. On third attempt he admitted to shooting step father and then stabbed others. Then changed clothes and dumped weapons, went to GF house, threw key in yard and made calls. a. What questions do you have about that confession to determine whether it was involuntary? 08232012 Final: Look at ability to spot issues. Ability to recognize strengths and weaknesses to assess both parties arguments. Ability to recognize the facts that bear on the legal issue being analyzed. Examine the rationale for the rule we are observing. Admissibility of confessions under due process. 1. When looking at voluntariness of confessions today, it is most accurate to analyze as due process. 2. Jimmy Childers Case revisited: a. Filing for motion to suppress due to involuntary i. Several categories to slot facts: 1. Details about the conduct of the police and the circumstances of the interrogation. a. Psychological pressures- threat, a promise, guilt, a lie, sympathy, hostile b. Number of officers present/interrogating (officers, prosecutor) c. Length of the interrogation (session and overall number of days) d. Provision of basic amenities food water, bathroom e. Use of violence (makes a confession per se involuntary) f. Given Miranda warnings g. To what extent was he isolated from family, friends, and legal counsel (incommunicado) h. Was he in custody/arrested? i. Conditions of confinement j. Place of interrogation k. Depreciate the seriousness of the crime. 2. Details about accused a. Level of education (higher level of ed makes more difficult to claim involuntary)

b. c. d. e.

Intelligence Mental illness (more vulnerable to coercive police pressures) Under the influence of alcohol or drugs Age (young/ very old is more likely to be vulnerable to police pressures) f. Whether he has been interrogated and/or arrested before.experience in criminal justice system g. Physical condition Arizona v fulminante p 361 1. Killed step-daughter and confessed to undercover officer while in prison for another offense. 2. Threat was that theres a lot of talk about him being sex offender/murdered and will protect but only if tells what happened. 3. Court portrayed as a threat that propelled confession. a. I promise to protect you but only if you confess b. I promise not to charge if you confess. Frazier v Cupp (supplement) 1. Defendant denied and said w cousin 2. Cop responded brought cousin in and he confessed-lie 3. The cop sympathized and suggested V started fight 4. D starts to talk and then says I want attorney 5. Cop says cant be in any more trouble than you already are 6. Court held okay bc questioning was short duration, D was mature of normal intelligence, misrepresentations were insufficient after 7. There can be coercive pressure, yet not violating due process Colorado v Connelly (p 368) 1. Severely mentally ill, hallucinating and heard god tell him to confess or kill himself and so travelled across the country to confess 2. D contention it wasnt his free will it was product of mental illness 3. Court said needs something moresome coercive governmental activity Assume we have people in neighborhood outraged bc little girl was raped and killed. They are convinced registered sex offender is guilty and they beat him etc until he agrees to confess. Is it admissible? It is state action bc a state official is using the confession in a state action. 1. It is a crime to steal, it is equally a crime to receive property that we know is stolen 2. It is equally offensive for societal norms of decency for a court of law to receive benefit from confession gained this way. 3. Admissible as far as due process. a. Even though high risk that it is inaccurate b. And other could be charged due to their actions Test for admissibility: 1. If under totality of circumstances, D was deprived of free will (power to resist) through coercive governmental activity. a. Typically exerted by police officer but does not have to be.

b. State action that rises to level of coercive activity 2. Miranda doesnt make superfluous these grounds. 3. Can still get confession suppressed on due process grounds. a. Fruit of the poisonous tree doctrinemore likely other evidence will be suppressed if confession suppressed on due process grounds. Due process applies in non-custodial context Cant be used for impeachment purposes Fruit of poisonous tree doctrine applies more broadly, Woman came in and had crim charges filed against husband and she wanted them dropped. He held gun to her head for several hours and charges were filed. Prosecutor refused to dismiss charges (mon) On fri, in P office and woman murdered, went to scene and she was upstairs lying backwards on bed w 9 bullet holes. H arrested and found out call to police about shots filed and he was on porch and officer said dont say anything. O then told D Miranda rights. Were the officers actions required by Miranda? 1. No, one requirement to be met for Miranda is D must be in custody or its equivalent. 2. Clearly no interrogation a. Must be custodial interrogation before Miranda is necessary 3. He said dont say anything.above and beyond Miranda. a. you have the right to remain silent not counseling D not to talk i. Custody + Interrogation. Miranda Court said stems from 5th amendment privilege against self incrimination no person shall be compelled to be a witness against herself Hypo: suspected rapist arrested and brought to station O said Id like to ask you a few q if you dont mind, but before I do, Id like you to know you have right to remain silent, we can use anything you say that is incriminating to prosecute you, you have the right to see an attorney, if you have no money, an attorney will be appointed to represent you. And then was asked if he understood and he said yes. As D counsel, are there any deficiencies? 1. Have right to consult an attorney and to have attorney with you while being questioned/interrogated. a. Warning failed to communicate that he has right to have attorney with him when being subjected to pressures of custodial interrogation 2. Anything you say can and will be used against you in a court of law. a. Otherwise D may be saying something he thinks is exculpatory but the reality is it can still be used. 3. May not have resourcesif you cannot afford an attorney, an attorney will be appointed to represent you. Requirements set forth in Miranda: (does not have to follow precisely, basic points must be reasonably conveyed to the D, a fully effective equivalent is OK) 1. Right to remain silent

a. D must be apprised of this right in clear and unequivocal terms (p 379) b. What if D knows of that right (has been through system 20 times, watches TV etc) will confession come in? Must be reminded. i. May be aware of something in abstract but may not know that then and there, that day, those cops are going to respect that right. 2. Anything you say can and will be used against you in a court of law a. Nothing magical about words can and willmight can, may etc will work b. Considered important bc it reminds D that person at other end of table is adversary i. Police officers are skilled, as they should be, at getting D to make inculpatory statements 3. Right to consult with an attorney a. Must be given no matter what 4. If you cannot afford an attorney, a. Poor people have that right as well Alternatives need to make sure the D is aware of his rights, and that he has a continuous opportunity to invoke them. 08292012 Dickerson v US (p 389) 1. When c rendered Miranda, it was a seminal decision. Congress responded w fed statute which said as long as confessions are voluntary, they can be admitted. 2. That statute laid dormant for many yearsthen dickerson 3. Question of whether Congress has the power to supplant Miranda a. Court concluded it did not override Miranda b. Miranda is constitutional decision of the court, not just a decision where ct was asserting supervisory act over state courts. 4. Second issue was ct can overrule its prior decision so had to decide if Miranda inccorectly decided a. Stare decises had been on books for so long and importance of generally adhering to precedent, ct unwilling to over-rule. b. Ct also mentioned pragmatic reasons for adherence: i. Acknowledged drawbacks of just focusing on drawbacks of voluntariness 1. When looking at many factors, there is a lack of clarity whereas Miranda gives straightforward answers for police and courts 2. W totality approach, there are too many vague factors that cops and cts must struggle w c. Ct refused invitation to overrule Miranda Before someone is subjected to custodial interrogation, she must be given Miranda. Even if given, must also prove there was a valid waiver of the Miranda rights Govt must prove valid warnings given and that D validly waived rights 1. Must prove knowing, intelligent and voluntary 2. And has a heavy burden in proving the validity of the waiver according to Miranda

General on the scene questioning does not constitute interrogation per Miranda. 1/19/11 In assessing whether or not there is a due process violation: look at totalitary of circumstances In 1966 SC said in order for a statement obtained during custodial interrogation to be admissible, the state must prove D was given Miranda warnings and that D waived those rights. The SC in Miranda said those warnings are satisfied if the D was fully effective equivalent 1. Something else that would adequately apprise D that he has that right to remain silent 2. And ensures that he has the continuous opportunity to invoke that right. a. Court indicated that if a D attorney was present, that would be equivalent What triggers Miranda? 1. Custody 2. Interrogation Assume there is interrogation and focus on custody 1. Under arrest 2. Or significantly deprived of his freedom Assume we have PO that has arrest warrant for D, intends to arrest D, gets to house, asks if he can come in and w/o giving D any Miranda warning, starts asking D questions. Does not tell D he has warrant or that he intends to arrest. D makes incriminating statements. If D attorney moves to suppress statements? 1. If we were to adopt a test for custody that focuses on the officers intent, there are significant concerns a. Officer might lie b. Larger more fundamental concern is that it is irrelevant i. Miranda sprang from a concern about someone being compelled to incriminate themselves ii. What is in officers mind is irrelevant unless it has an impact on the Ds mind th 2. Since the 5 amend focuses on impelled .focus on subjective test for D a. D may lie b. It would require the cops to be mind readers i. Could have a non-custodial (in the home is usually non-custodial) questioning and could have someone who is just a panic-person 3. Discard subjective tests based on officer and D perceptions 4. An objective test focusing on D a. In determining whether or not met, see if reasonable person would understand arrested b. Look at situation from D shoes bc concerned about pressures brought to bear on Ds 5th amendment priv.

i. P 400, section 2 1st sentence Berkemer v McCarty (p403) 1. D stopped due to suspected drunk driving, at time O questioned D at scene of traffic stop, was he significantly deprived of freedom? Yes, but not enough to equal custody. a. Stopped on road b. Since it is a crime to leave, that significantly deprived him 2. Did the SC conclude D statements at scene had to be suppressed? No a. There needs to be high coercion i. When someone is stopped, is there a coercive pressure? 1. We feel pressure when stopped is bc we know there are magical words that sometimes lead to getting or not getting tickets 2. PO has power to issue a ticket that may lead to money, loss of license, other repercussions etc 3. The coercive pressure, even though they exist, arent bad enough. For custody to exist, coercive pressures must rise to point where would make someone feel arrested. 4. Significant loss of freedom and coercive pressures not bad enough to implicate Miranda in this case. a. Most people when stopped are stopped for short period of time. (brief) b. Encounter is out in public, not police dominated place c. Typically stopped by 1 officer, possibly 2 i. These combined to lead court to say coercive pressure not present at time of traffic stop to lead to Miranda. 5. When questioned further in jail and still no Miranda, those are inadmissible. a. Govt argued admissible bc court should recognize a misdemeanor traffic exception to Miranda. b. SC rejected and main reason was that Miranda is a clear rule and cops know to give before custodial interrogation.dont want to start carving out exceptions i. Secondly, talked bout difficulty for officers if there was exceptionsnot sure if misdemeanor or felony at time of arrest. c. Not workable for police d. The question is, is the 5th amend priv against self incrimination imperilled here? Oregon v Mathiason (p 396) Issue is was questioning in custodial setting? Facts for D: 1. Was in law enforcement building, police station 2. Lie about finger prints 3. Only w officer 4. Door closed 5. told his truthfulness would be considered by judge and Prosecutor 6. told he was suspect

7. D was parolee Court ruled he was not in custodyno Miranda needed Facts for P: 1. Given option of meeting 2. Told not under arrest 3. Greeted cordially (shaking hands etc) 4. Questioning took 30 min 5. D was permitted to leave even after admitting involvement in crime a. Relevant bc O told him you are not under arrest to the extent that he then let him go shows it was a genuine truthful assertion and a reasonable person would have assumed not under arrest i. Shows sincerity of O Custody: 1. D can be subjected to a lot of pressures but that doesnt necessarily mean the custody requirement is met. 2. D can be significantly deprived of his freedom and custody requirement not met 3. Actually met if arrested 4. Functional equivalent: look to see if reasonable person would believe significantly deprived of freedom and is being subjected to coercive pressures like those experienced by those in custody (someone who has been arrested) a. Coercive pressure must rise to level to make one believe under arrest JDB v. N. Carolina Do we perceive a reasonable person with age limit? Do we look at the age? Court says should take into consideration If a police office knew, or would reasonable know the age Consider: have a 16 y/o suspect of robbery asked to come to PS, not given Miranda, brought by parents, told wont last long, lasts 2 hrs, not told free to leave Not told not under arrest. Parents ask to be w him and refused No criminal justice experience P has argued statements admissible and says Yarboroughyou are D attorney, what is response? It is not enough that a reasonable person would perceive he has a significant deprivation of freedom. (Berkemer) It will not suffice if a reasonable person would believe he was being subjected to coercive pressures. Need to perceive significantly deprived of freedom and being subjected to coercive pressures like those of someone who has been arrested. Who is that reasonable person? Previous hypo: Yarborough (p 398)

Response from D: Hone in on Oconnors opinion. The D was almost 18, in the hypo, D was 16. She says age may be relevant. Is age relevant? Take age of D and ascribe to a reasonable person (voluntary manslaughter) She did not say age IS relevant, she just left it open. In recent years (since 2005), the SC has considered the D age of <18 as very important. Roper v Simmons. Whether it is cruel and unusual punishment to give death sentence to someone under 18 at time of crime. In concluding, court emphasized young kids are so different from adults. 1. Young people are more impetuous and more likely to make ill considered decisions 2. Young people more vulnerable to outside pressures. a. Life sentence without possibility of parole to someone <18 is cruel and unusual (2 yrs ago) Was state court unreasonable in not factoring in the D age when considering (habeas corpus) IT IS not an OPEN QUESTION WHETHER YOUTH OF d WOULD BE ASCRIBED TO REASONABLE PERSON Show due process and Miranda arguments. Howes v. Fields Molestation of child occurred at the correctional facility. Clearly custodial and needed Miranda warning D was in prison, but was not in custody If an inmate is already incarcerated, it is no longer required for a jailhouse interrogator to read the prisoner his or her Miranda rights. Imprisonment is not automatically custody Interrogation Rhode island v Innis (p407) 1. Murdered taxi driver case 2. Question is was he interrogated while in the car? He had invoked right to counsel and then confessed 3. He says he was interrogated after invoking right to counsel and said should be suppressed 4. Court said no. a. Can have interrogation even when no question posed to D. b. There can be interrogation even if nothing is said to D. 5. Court said we are to look at whether the police should have known their words or actions were reasonably likely to elicit an incriminating response.(not about what actually knew) a. When applying this test, the police officers intent is relevant but that is not the test. b. Dissent said if police officer had the intent to elicit, that is interrogation c. Stevens in dissent says anything that HAS THE PURPOSE OR the effect of questioning i. If a reasonable person would believe a response is called for, it is effect and interrogation is satisfied. ii. Stevens is taking a comparative way to which custody is defined. 6. Memorize the Innis test. 7. There is nothing in the record to suggest the respondent is peculiarly susceptible to handicapped kids. (p 411)

8. No awareness of disorientation or upset. 9. Marshalls dissent points out that there doesnt need to be evidence he cares about kids. He says it is basic common sense this kind of appeal would be reasonably likely to elicit a response. a. Might argue that this D was suspected of having put bullet in someones brain, so no way to know reasonably likely to elicit a response from cold hearted killer. i. Response is that hurting an adult is very different than hurting a childlook at prisoners treatment of molesters. 10. The court is telling us that evidence of the police officers knowledge of the Ds sensitivity is important. Same facts except PO knew d WAS DOG LOVER. While transporting, cop says lots of dogs in neighborhood and god forbid a stray dog should come across the shotgun and get hurt. 1. In this case, it would be inadmissible under Innis test. The Innis court uses ABSENCE of knowledge Perkins (413) 1. Undercover govt agent in cell w D and asks D a question (have you ever done someone?) 2. Court concludes no Miranda problem bc D is unaware person he is talking to is govt agent a. Miranda is about protecting D from the type of coercive pressures by govt agent. b. 5th amendment doesnt protect you from being stupid. What is required of the police? Duckworth (420) and Pysock (417). 1. Ds arguing there was something deficient about the Miranda warnings. 2. There are no magical words. 3. Question is whether the warnings reasonably conveyed the Miranda rights 4. Look at warnings in their totality to determine whether they comport w Miranda. 5. In duckworth, the warning was sufficient. Oregon v Elstad (p424) 1. Cops at house to arrest, no Miranda warnings and D made inculpatory statements. 2. Took down to station, read Miranda and gave full confession 3. D seeking to suppress 1st admission and then also of confession bc it is the fruit of the initial comment. 4. 1st statement is suppressed as Miranda violation. (not disputed by govt). 5. Issue is what about second statement? 6. Court said it was admissible. a. Emphasized that if 1st statement was in violation of due process, it would be something else b. this is JUST Miranda violation. i. 1st statement is voluntary (no due process violation) ii. 2nd statement is ordinarily admissible provided 2 requirements met.

1. D given Miranda warnings 2. And there is a valid waiver of the Miranda rights. a. Waiver is valid if it is knowing intelligent and voluntary 7. D claimed cat out of the bag and that while told he had right to remain silent, he did not know the 1st statement was inadmissible. 8. Courts response was that the pressure was internal and not the external which is what Miranda is about. 9. Rule: when we have 1st statement obtained in violation of Miranda only, the 1st statement is inadmissible, the second is admissible if the 2 requirements are met. Assume have police chief. And he says when you arrest someone, question w/o Miranda warnings then, once make incriminating statement, give warnings and secure waiver. whether second statement is admissible or not Missouri V Seibert (p430) 1. Dead kid and then burn trailer to hide it other kid died. 2. Made statement pre Miranda, got Miranda, gave waiver then more questioning. 3. Plurality opinion: a. Elstad was violated in good faith b. Court says the focus is whether the Miranda warnings reasonably conveyed to the d their rights. c. In determining whether or not effective, look at a lot of different factors. i. Look at completeness and detail of the questions and answers in the first round of questioning. ii. At the overlapping content of the two statements iii. The timing of the first and second iv. Setting v. Continuity of police personnel 1. Same officers? vi. Degree to which the interrogators questions treated the second round as continuous w the first 1. Plurality felt this was key to suppression bc he prefaces question by reminding her of previous statement 2. Takes prior inculpatory statement made w/o Miranda and exploits it. 3. D. bottom line: when 1st statement obtained w/o Miranda, the test about 2nd statement is if reasonably conveyed and to do so look at facts 4. Kennedy concurring. a. Elstad applies unless the Miranda violation was deliberate (use of 2 step approach) i. If Miranda violative statement only, Elstad governs unless cops do it deliberately, and then in that case, it doesnt apply. b. When there is deliberate violation, the second statement may come in i. if there is a substantial break in time and circumstances may CURE THE VIOLATION

ii. a warning that the 1st statement is inadmissible, may be curative measure. 5. Dissenters say Elstad applies. a. Doesnt matter if the violation is deliberate or not bc the D wont know. b. Miranda is to protect the D from the pressures. c. Lends clarity to Miranda 6. What analysis do we undertake to see if 2nd statement is admitted in instance when cops are intentionally doing 2 tier approach? 7. What do you do if presented w deliberate of Miranda, is 2nd statement admissible? a. Analyze admissibility of statement set by plurality b. Then look at Kennedy and see if there were curative measures that may bear upon it.dont know. If have Miranda violation but no due process violation, the second statement will typically be valid if 2 things happen: Miranda given and waiver given Missouri v Seibert (p430) 1. The plurality said in the situation where first statement unwarned and then second statement obtained, must look to see if second set of Miranda warning reasonably conveyed the rights to not have to continue talking. 2. Factors mentioned by plurality p 433 first paragraph 3. Kennedy view, elstad normally applies unless the Miranda violation was deliberate a. Might be admissible if curative measures applied. i. A substantial break in time and circumstances MIGHT be enough ii. A warning to D that first statement is inadmissible 4. Be able to apply plurality approach, kennedy view and dissenter view a. She thinks there is good chance that there will be more traditional poisonous tree analysis made. Hypo: suspect arrested for armed robbery of a bank, interrogated w/o Miranda, asked where did you stash loot and he tells them a barn and where it is. It is so well hidden it would otherwise not have been found. The D moves to suppress the cash as the fruit of the Miranda violation. You represent the govt, what is response? 1. Cite US v Patane to say the cash would be admissible (p 436) a. Non-testimonal evidence obtained after Miranda violation is not applied to 5th amendment right. b. 5th says cannot be compelled to talk but may still be compelled to line-up etc c. Miranda is implementing 5th amendment priv against self incrimination i. If this argument is made by prosecution, what is D reply? 2. Concern that evidence only obtained bc of comment provides incentive for police officers to ignore Miranda. a. Patane interrupted during Miranda warnings and said he knew his rights b. Must give the rights no matter what, even if they say they know.

i. To distinguish w hypo: try to argue it was good faith violation of Miranda in Patane and so they were off the hook whereas nothing in hypo to make that argument US v Patane (p 436) Plurality (3 justices) 1. Miranda violation does not occur until Miranda violative statement introduced at trial (dont have to remember) 2. Fallback was that the 5th amendment is only implicated by testimonial evidence. Concurring (kennedy + Oconnor concurring in judgment) 1. They say whether or not gujn comes in is result of balancing approach a. Law enforcement need for probative, reliable evidence b. That outweighs c. The interests underlying the Miranda rule 2. Doesnt rule out the possibility of physical evidence sometime being suppressed. Jimmy Childers case again. Assume he ended up being questioned at station and custodial interrogation and given incomplete Miranda warnings. Then confessed to killings and explained methodical cover-up of the crime. Now asserting defense of insanity and gets on stand and says I remember walking in house but then dont remember a thing after that. As P, what to ask him on cross? 1. Do you recall going to station and giving statement to police? 2. Isnt it true that you told the cops that. 3. To show he remembered it all and told the cops. Harris v New York (p440) 1. Court held that statements obtained in violation of Miranda, although they cannot be used for the case in chief, they can be used for impeachment purposes. a. P Case in chief, presenting evidence that D is guiltysubstantive reasons b. Then D will make a motion for directed verdict c. Then D can present its defense and D may take the stand/present other witnesses d. P rebuttal 2. Miranda violative statement cannot be used in P case in chief, but only to prove he is a liar. 3. Primary reason is court said must balance 2 interests a. Preventing perjury. b. The interest in deterring violations of Miranda i. Court said this interest will be adequately protected by suppressing the statement from the case in chief. ii. If the police are going to be deterred, it will be bc they want to be able to use the confession in the case in chief, otherwise judge may say not sufficient evidence for case 4. Statements obtained in violation of Miranda CAN be introduced for purposes of impeachment. Except if due process is violated, then cannot be used for impeachment purposes. NY v Quarles (p 442) 1. Known as case in which SC recognized a public safety exception to Miranda.

2. When does public safety exception apply? a. Look to see whether the officers question(s) were reasonably prompted by a concern for public safety. 3. Should there be a public safety exception? 4. Assuming there should be an exception,. Was that properly applied to the facts of the case? a. My side makes arguments why there should NOT be a public safety exception. NY v Qualres (p442) 1. Court announced an exception for public safety 2. Test is to look to see whether officers questions were reasonably prompted by a concern for public safety a. Objective test b. Rejected subjective test i. Outcome would have been different if based on subjective test. 3. Court said could potentially be a big exception but felt it was a narrow exception For Public safety exception 1. Cost-benefit analysis a. Public safety needs outweigh interest protected by Miranda. i. If we require police give Miranda warnings when the public safety is at issue, that is a big problem 2. Police in untenable position, if give warnings, may invoke rights and life lost, and potential killer goes free.catch 22 3. Other public safety exceptions embedded in other constitutional protections 4. Miranda is a prophylactic rule a. A rule devised to protect against violations of the right against self incrimination Against Public safety exception 1. Public safety can be preserved a. Can ask anyway, protect the public and just not admissible 2. Removes the clarity of Mirandas purported bright line rule a. Justice Oconnors point. 3. Often there will be other admissible evidence through which the D guilt can be established. 4. Constitutional rule 5. Stare decisis- Miranda has been there so long and shouldnt be changing 6. Whether or not custodial interrogation effects interrogation, the custodial pressures of custodial interrogation are still the same. There has been a tug of war on the court about what Miranda is. Was constitutional rule, then in Quarles and Elstad, tried to say was prophylactic rule, in Dickerson court said it is constitutional. The court said it is a narrow exception Instances where public safety exception can be invoked are different than where the police execute the normal need to expeditiously solve a crime. Have a public safety exception on the books, when does it apply?

Pennsilvainia v Muniz (449) 1. The booking exception 2. D was arrested for drunk driving, brought to station, slurring words and was asked basic questions (name, address, DOB, aliases etc) 3. Govt introduced this evidence, but then he was also asked what date he turned 6 4. Issues: a. Slurred speech b. Answers- age and address c. Date on birthday 5. Court says a and b come in, attributes of speech are physical evidencenon testimonial 6. Those questions necessary/reasonably related for booking into jail or to deliver pretrial services are admissible a. Definition of interrogation p 410 in RI v Innis 7. as far as date on birthday, court held that this is not related. a. Normally questioning in field is not custody, so if in field sobriety test, it would likely be okay. Waivers When D is subject to interrogation, he must not only be given Miranda warnings, he must also waive those rights. For the waiver to be valid, it must be knowing, intelligent and voluntary. To be knowing, D must understand his rights under Miranda and understand consequences of relinquishing these rights Must understand his words may be used against him in a criminal prosecution (doesnt have to know what criminal prosecution penalty would be). Moran v Burbine (p 452)- D never told there had been attorney hired for his d and court said too bad bc do not have to be given every aspect that might be important to calibrate your decision Colorado v Spring (p 452) D arrested for violation of federal gun laws but suspected of murder. Intelligent is not given any separate significance. Voluntary is the same test as in Due Processtotality of the circumstances In Miranda itself, the p 380No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings have been given NC v Butler (450) 1. D given rights, refused to give specific waiver of right to counsel 2. Court said waiver may be valid even though inferring from circumstances that D waived right and that he understood. a. Silence alone is not enough. b. Silence coupled with understanding of rights and a course of conduct indicating waiver MAY support a waiver. c. Miranda itself does not require that that waiver be explicit. Inference could be made.

In Miranda, court said P has a heavy burden to prove D waived rights. Now there is a preponderance of evidence. (more likely than not) Hypo: Assume we have police from Champaign IL who arrest D on warrant issued in Peoria for murder suspected in Peoria. AT noon, the CP cop gives him Miranda warnings and D says he doesnt want to talk, at 2, the same officer comes back and says there are PO on phone who want to talk to him, they give Miranda and he says again doesnt want to talk. At 5pm, a CP po goes to D and gives Miranda and this time the D says he is willing to talk and makes incriminating statements that inculpate him in the murder. Is there any basis for suppression? Michigan v Mosley (p 452) 1. Test to be applied is whether the police scrupulously honored the D right to cut off questioning. 2. D arrested for robberies, taken to robbery division and given Miranda and refuses to talk, taken to cell and 2 hrs later another O from Homicide takes him to different floor, gives Miranda and agrees to talk and makes incriminating statements 3. Court held that statements were admissible 4. Resumed questioning is not a per se violation of Miranda. 5. Court emphasized: a. Police immediately stopped questioning D once he invoked his right. b. Waited a significant period of time before resuming questioning i. 2 hrs c. Gave him Miranda warnings again d. Questioned about a different crime i. Different in nature as well as when and where it occurred. Hypo: way to distinguish the peoria/champaign case from mosley. 1. Were talking about the same crime repeatedly. 2. Officers came back repeatedly. Repeated efforts to tear down the D. a. Message is that were here and so are you and we will keep coming back until you confess. b. 3. Police did not scrupulously honor D right to cut off Q w regards to murder. i. D has choice to talk about different crime if they want to. 3. How would a court resolve? Unsure, facts are different and so have different question. Change one fact, at noon, he said, I want an attorney. How does that change the analysis of admissibility? Edwards v Arizona (455) 1. D was arrested for multiple crimes and ultimately invoked right to counsel. Next day told he had to meet w detectives, given Miranda and talked w cops. 2. Court concludes inadmissible bc when D has invoked right to counsel, police cannot question unless attorney is there or he initiates a discussion about the subject matter of investigation.

a. Initiation requirement or Edwards rule b. When initiating a request to counsel, questioning must cease, until an attorney is there, unless the D initiate the statement. c. Even for a different crime, the same rule applies. Back to Peoria case: 1. If attorney not there, the D must initiate the discussion about subject matter of investigation. Does it make sense to have 2 different rules? What might be reasoning for initiation requirement for right to counsel but not for right to remain silent? 1. In essence by saying wants attorney, D is saying I need help from an expert. a. In some ways it is a cry for help. 2. By contrast, if he says doesnt want to talk, he is still the controller of his fate. 3. If D has invoked right to counsel, the police can only initiate questioning if there is initiation AND a valid waiver. 4. If D invokes right to counsel, cannot even question about a different crime unless waiver and initiation. a. If D in Mosley had requested right to counsel, the effect would be totally different. b. Initiation requirement is same as when police question about the same crime or a different crime. i. Arizona v Roberson ii. The court repeats over and over again that it is a bright line rule. Minnick v Mississippi (p 458) 1. D invoked right to counsel, talked/consulted w attorney several times then several days later cops came back and wanted to talk w D and he agreed to talk to them. a. P position was he invoked right and then was willing to talk b. Court said it is a bright line rule and he is saying I cant handle custodial interrogation. He must initiate. Assume that D is given Miranda warnings to which he responds I dont know, maybe it would be best if I talked to an attorney first. Then police question him, are his statements admissible or inadmissible. 1. Court in Davis (462) said for initiation requirement to apply, D must unambiguously invoke right to counsel. 2. In determining whether D has invoked right to counsel thereby triggering the initiation requirement, look to see whether a reasonable police officer would recognize that the D has invoked his right to counsel. a. Police must still get a waiver but D does not have to initiate 3. The concurring says if D is equivocal, the cops should have to follow up w one more question to obtain clarification of whether or not the D wants to obtain an attorney. a. A suspect might soften the language bc he feels declaring it might make the cops think he is guilty.

b. In certain cultures, people are raised not to be assertive c. Can be gender differences (women more likely to use non declaratory request) d. Or because afraid 4. Souters point is that if we require a clarification, the only time it will make a difference is if the D actually wanted the counsel. Hypo: Peoria hypo, invoked right to counsel and 3rd police officer walked into holding room D said Im really surprised you guys caught me, I thought Id get away Cop said why did you leave Peoria anyway, D said, off the record, I had to, theyd never have understood why I killed her. Admissibility of first and second set of statements. 1st statement volunteered. Admissible. 2nd statement inadmissible since waiver not valid. Waiver needs to be knowing, intelligent, and voluntary. For admission under request for a counsel: need Initiation + valid waiver Overview of Miranda: 1. Michigan v Mosely, sometimes the police can resume questioning a D who had invoked his right to remain silent. Question is whether police scrupulously honored D right to cut off questioning. a. Police immediately stopped b. Waited a significant time c. Gave Miranda warnings again d. Questioning was about a different crime 2. When D invokes right to counsel. If D invokes right to counsel, look to see if 2 requirements met a. D must initiate a discussion with the police generally bearing on the subject matter of the investigation b. D must validly waive Miranda rights. Assume: at noon, D invoked right to counsel after given Miranda, at 5pm a different po walks in to his cell and D looks up and says Im really surprised you guys found me, I thought Id get away. To which the officer said why did you leave Peoria anyway? And the D says I had to, they would never understand why I killed her. Focus on admissibility of first statement, is it admissible or inadmissible? It is admissible because it is not in response to questioning. Miranda is only implicated by custodial interrogation. It is a volunteered statement. Second statement (in response to a question), is it admissible? He initiated with his initial statement. It is an implicit statement that he was fleeing. Next question, is there a valid waiver? The p.o. never gave Miranda rights again. (The SC cases that have found there is a valid waiver have received the Miranda warning again). Maryland v Shatzner (sup 45)

1. In jail for child molestation and sent investigator to ask about sons molestation, invoked right to counsel. 2.5 yrs later (still in prison), went back to talk to him again and he consented to polygraph and failed, made inculpatory statements and then requested attorney. 2. Focus is on failure to initiate. Does the initiation requirement bar the admissibility of his confession? a. SC ruled the initiation requirement does not apply when there has been a break in custody of 14 days. After that, if there has been a break in custody they can approach him. i. Where did the 14 days come from? Court said the coercive effects of having been in custody are dissipated enough that the D doesnt need the initiation requirement and the police can start anew. ii. Is that 14 day number in the constitution itself? Court is again talking about prophylactic measures. because Miranda is our rule, not a constitutional command, it is our obligation to justify its expansion 1. If part of the Constitution, it effects the scope of Miranda protections, if not, where does the SCOTUS get power to tell state courts and local police officers what to do? b. Was there a break in custody? The D in this case was in prison for different sex crime, where his statements ruled inadmissible? No, prison was what he was accustomed to. i. For Miranda purposes, he was not in custody bc he was in familiar surroundings (in gen pop), wasnt isolated w his accusers, the length of his detention was not controlled by these law enforcement officials. ii. The court mentioned he was lawfully imprisoned for a conviction. 1. What if he was in jail awaiting trial and not convicted? Berghuis v Thompkins (sup 53) 1. D SUSPECTED OF INVOLVEMENT IN MURDER, WONT SIGN MIRANDA WAIVER FORM, CONFLICTING EVIDENCE OF WHETHER HE VERBALLY understands. The questioned for next 2hrs 45 min and is largely silent. No success. Then they ask if he believes in god and eventually makes inculpatory statement. (yes I pray to god to forgive me for killing that person) 2. Had D invoked right to remain silent? a. D said yes bc he was largely silent and wasnt responding. b. Court said no, in order to invoke ones right to remain silent, that invocation must be unambiguous. i. Much like right to counsel requirement. c. Yet no initiation requirement when D does invoke the right to remain silent. 3. Did he waive his Miranda rights? a. Was his waiver knowing? i. Assume he understood his rights. 1. No unambiguous statements to remain silent, did occasionally respond 2. Miranda is only for custodial interrogation. The god statement is not designed to elicit inculpatory statement. b. it is states burden to prove

c. think about purposes of Miranda designed to protect us from being compelled to incriminate ourselves. Youve been arrested and given Miranda but then for 2 hrs 45 min officers says thins, I understand why you did it etc, then when you finally say something, have there been coercive pressures exerted on you during that time? i. Top protect that privilege, should the waiver precede interrogation? 4. Courts rationale understood his rights, waived his rights by making uncoerced statement. 5. If understood rights and makes voluntary statement, it is valid. 6th Amendment 1. 6th Amendment violations. In all criminal prosecutions, the accused shall enjoy the right to have assistance for his defense. 2. Rule that comes out is the Massiah Rule it violates a 6th amendment right to counsel when the police deliberately illicit an incriminating statement from the D after the onset from adversary judicial proceedings when counsel is absent and there has been no valid waiver Massiah V US (p 467) 1. When in car talking to co-defendant, was there a Miranda violation? a. No, he wasnt in custody 2. Was there a due process violation? a. No, they were voluntary. 3. There is a 6th amendment problem. a. What is the purpose of the 6th amendment right to counsel? i. For counsel to be present at all critical stages of the prosecution. ii. Court has said once the govt has committed itself to prosecute someone, the D has the right to have a buffer between him and the govt with all its resources. iii. Critical stages- potential substantial prejudice to D that can be averted through counsels presence. iv. If violate 6th amdt, if police del Brewer v Williams (p 471) 1. Little girl missing from YMCA and suspect was mental hospital escapee. He went to davenport and called attorney and then turned self in. On way back, he showed them were body was in response to Christian burial speech. Both attorneys instructed police not to question suspect without counsel. Officer knew he was very religious and called him reverend. Cop conceded it was a deliberate elicitation. Was given Miranda warnings multiple times. 2. If he was given Miranda warnings and understands them, he states once he gets to des moines he will tell everything. 3. Problem is, he simply did not waive his 6th amendment right to counsel. 4. In order for there to be a waiver: a. There must be an intentional relinquishment of that right. Knowing, intelligent and voluntary.

5. The court here emphasized he had both explicitly and implicitly showed he wanted to avail himself of the right to counsel. a. Explicit was when he said, Ill talk when I talk to my attorney. b. Implicit was when he secured attorneys on both ends of the trip. Miranda warning apprises both 5th and 6th amdt right to counsel Hypo: have a D who is indicted for robbery. And he retains an attorney and then that attorney enters appearance and plea. Then police come to D home, give Miranda warnings and he expressly waives. Then he makes inculpatory statements about the robbery but in addition, he makes damning admissions about a murder that had occurred a month earlier. 1. Are D statements admissible under Miranda? a. Yes, he waived his rights, and not in custody yet. 2. No due process problem 3. Are the statements about the robbery admissible or not? a. Is the Miranda waiver enough for there to be a valid waiver of 6th amendment. i. SCOTUS says it adequately apprises the D of the right to counsel. b. Is there a 6th amendment initiation requirement? i. No ii. Montejo (sup 61) 1. Charged, has attorney, cops ask if he has attorney, give Miranda again and he leads to gun. 2. D argued cant do that under Michigan v Jackson 3. SCOTUS over-ruled. And there is no longer a 6th amendment initiation requirement. a. 6th amendment initiation requirement designed to prevent D from being badgered into giving confession. But no longer need this rule because of Miranda. b. Court is starting to muddle previous decisions. 4. Are the statements about the murder admissible? Yes a. There has been no 6th amendment issue about this crime. The 6th amendment right to counsel is triggered by the onset of adversary judicial proceedings. The onset does not mean they have the right to counsel Right to counsel only exists at critical stages. The court has said that there must be right to counsel in some pretrial stages. Critical test: look to see whether that stage poses potential substantial prejudice that can be averted through counsels presence. If you have a statement, look first to see id due process problem, then Miranda, then 6th Amendment

If you have AJP and police secure incriminating statements, that D had a 6th amendment right to have counsel present when questioned in home absent a valid waiver. Is there a 6th amendment initiation requirement? Court has flip flopped. For 20 yrs the court said there is. In the recent Montejo case (sup 61) the SC discarded the initiation requirement. Purpose is to have counsel as a medium (protector) Cops can approach him now if there is a valid waiver. Robbery hypo: police came to home, read Miranda and questioned about the robbery but also a related murder. Are questions valid? AJP have not commenced with respect to the murder. But there is a wrinkle Assume have a person indicted for robbery, then asked if he was armed during robbery and he makes admissions and that he pointed weapon at V. Then superseding indictment filed. Can the incriminating admission be used for armed robbery? 1. Prosecution argues valid bc not valid for armed robbery 2. Court says no bc a. Crimes for which AJP commenced and anything considered the same offense as that for which he has been charged. i. If different offense, no 6th amendment problem ii. To check, court applies blockburger test: 1. Each of the crimes must require proof of a fact that the other crime does not require. 3. In this instance armed robbery includes robbery. Do you agree with this? 1. Think of Brewer, at time of Christian burial speech, only crime was abduction. 2. If this came up today, SC would hold statements were inadmissible for kidnapping but admissible for murder. a. AJP had not commenced with respect to the murder b. Kidnapping is not considered the same offense as murder. 1. In Cobb suspect was there for robbery in which 2 people from the home were missing and ultimately murdered. Massiah Rule says it violates the 6th amendment to deliberately illicit incriminating statements Deliberate illicitation: 1. Us v henry: suspect indicted for robbery, makes inculpatory statements to informant in jail. FBI had given specific instructions not to ask qs and informant ultimately gives information. 2. Court found deliberate illicitation.

a. The government intentionally created a situation likely to induce the D to make incriminating statements. b. The informant was paid c. D doesnt know he is talking to a govt agent d. D is in custody. Deliberately illicit exists when government knowing circumvents Ds right to counsel. Kuhlmann v. Wilson (p490) 1. In order for the govt must be deemed to have done this, the govt must have done more than just listen. Passive informant 2. The govt must take some action beyond mere listening that is designed to deliberately illicit information for incriminating remarks. a. Placing electronic listening device would not violate 6th amendment right (as of now) 3. Placed in cell where he could see garage where he killed someone. Tells cellmate story he had told cops and cellmate says story doesnt sound too good. Down the road, the D made incriminating statements. Statements that contradict statements can be admitted (even if obtained in violation of Miranda) for impeachment purposes Likewise, statements obtained in violation of the 6th amendment rights to counsel are admissible for impeachment purposes. Statements obtained in violation of due process of law are NOT admissible for impeachment purposes. Identification Procedures: Hypo: the enema bandit. Break into womens apartments, tie them up, give v AN ENEMA AND LEAVE. Assume one night police get a call, arrest him at scene and found enema kit on him. 1. V1 saw a lineup shortly after the arrest and did identify the D 2. Then the D was indicted and V1 saw a second 2nd lineup and there was a second ID 3. V2 saw preindictement lineup but IDd Po that was part of lineup, at second lineup, IDd the suspect 4. V3-5 saw lineup together and all IDd the D after the indictment 5. No attorneys present, no waivers. The lineup testimony is testimony abt the lineup itself. The in court identification testimony is when the witness is asked by P do you see in courtroom the person who did X and the V identifies in the courtroom. 1. V1 testimony about the post-indictment lineup a. Inadmissible bc had right to have attorney present and did not validly waive that right. Any comments about the 2nd lineup will always be suppressed b. Per se exclusionary rule

i. Gilbert v CA (525). Ct said when lineup held in violation of 6th, the witness is absolutely foreclosed from talking about that lineup. 2. If V1 asked in court to identify the perpetrator of the crime? a. Test for in court lineup- still permitted to elicit in court ID only if can prove by clear and convincing evidence that there is an independent legal origin for the in court ID b. US v Wade p 516 c. Reason why witness is IDing today is bc not what she saw in lineup, but because what she saw the day of the crime. d. Argue that one fact of V1 is that she IDd D before indictment i. Uphill for V2 ID ii. V3,4,5 is they all looked at lineup together. Thus they could have all influenced one another.prejudice in way lineup was conducted. In gilbert v Ca the ct said a per se exclusionary rule says no to post indictment lineup without counsel. Testimony abt the lineup is absolutely barred from discussion to send strong message to police to dissuade them from violating 6th amendment right to counsel. US v wade p 516. Will be barred from identifying D in ct unless the govt proves by clear and convincing proof that the ID was from reasons separate and apart from what she observed during that line-up 1. Clear and convincing standard falls between proof beyond reasonable doubt and preponderance of evidence 2. Factors to consider with line-up: a. Circumstances of the line-up itself (how prejudicial?) i. ID of 3, 4 and 5 could have been very prejudicial b. Witnesses opportunity to view the criminal at the time of the crime (If V4 had a longer period to look, testimony may still be okay) i. Lighting (time of day) ii. Length of time the observations made iii. Distance from perpetrator iv. Physical impediments to observation v. Vantage point vi. Wearing a disguise/mask was used c. Any discrepancy between the witnesss pre-line-up description of the perpetrator and the D actual appearance. i. Detail is relevant d. Witnesses failure to previously ID the D i. Factor against V2 e. ID of someone else i. Again, against V2 f. ID of D from photo seen before the line-up g. The lapse of time between the crime and the line-up

i. The shorter the lapse of time, the more likely it is the witness has a more vivid recollection of the D at the time of the crime and less likely to be from illegal lineup V1 initial lineup. (after arrest but before indictment) Is this lineup illegal? No Kirby v Illinois p 526 1. A lineup held before the onset of adversary judicial proceedings does not trigger any 6th amendment right to counsel. 2. Events that constitute AJP a. Formal charge b. Filing of an information c. The return of an indictment d. Holding of an arraignment e. Preliminary hearing 3. Just because a D has been arrested is not enough to trigger. Per gilbert and wade, why was there a right to have an attorney present at post-indictment lineup? 1. At trial the attorney will have a meaningful opportunity to test the reliability of the scientific test- no counsel needed for like blood draw in DD case 2. At line-up, attorney needs to be there because a. There is an impediment to D being aware of and pointing out suggestive influences b. May be ill advised for D to take stand to point out because then prior conviction may be used to impeach and thus jury bias occurs. c. In credibility contest w cops, D loses. d. As to witness, she may not notice suggestion due to trauma e. The records are typically not kept of who is present in the lineup 3. There is a right to have attorney present at the lineup so that the conditions can be effectively recreated for the jury in order for the assistance at trial to be meaningful and thus fair trial Assume we have a D arrested and seen in lineup at 1155am post arrest. At noon charges were filed. And then at 1205 there is a lineup. 1. Difference between the lineups is that at noon the govt committed itself to going against the D In Kirby dissent, he is saying it is absurd and the risk of an innocent person being convicted doesnt change Study at U Wis where 175 students shown 100sec video of robbery, then asked to ID culprit. 40% of those, IDd innocent person. As far as 6th amendment right, there is no right to have attorney present at per AJP lineup Add 6th victim, she was shown array of photos after indictment and IDd D. Was there a violation?

US v Ash p 530 1. Viewing of photos by witness is not a critical stage of the prosecution a. Because when the pictures being seen, there is no confrontation between the D and an expert adversary or a witness. i. May be a greater chance of misidentification when a witness views a photograph which incre3ases need to have counsel present ii. D is not there.additional reason why it should be considered critical stage b. Suggestive influences can be recreated Next week: If you were going to critique the actual incarceration standard regarding right to appointed counsel under the 6th Amend, what arguments would you make against it? Why? One of the reasons given in Ash as to why viewing photos is not a critical stage is because there is no confrontation. Argument could say that Ds absence makes this a more compelling case for why this is critical, because without D to bring up indiscrepancies, coercions, etc., there is no one who will bring this information to light. Courts rationale: 1. no confrontation between D and expert adversary or W 2. D has equal access to photos 3. Suggestive influences can be recreated Witness will stick to their first ID once theyve made it, so trying to talk to the witness post-ID about other possibilities is not worthwhile, they generally will not be swayed or change their minds. A prosecutor or police officer can suggest to a witness who the culprit is and even put pressure on witness to make an ID and to stick with it, regardless of doubts. However, court argues that having defense counsel present for pross interviewing of witnesses skews the balance and is not appropriate. Questions over whether suggestiveness violates due process. Suggestive alone, however, does not give rise to a due process violation. Stovalls Suggestiveness: 1. Only witnessbrought to beside of witness 2. Only African-American in the room 3. Handcuffed to police 4. Asked to speak, only person asked to speak

Not a due process violation due to the totality of the circumstances, was necessary in light of the witnesss injury and that she was the only witness. It was more important for the police to determine that he was the perpetrator. For a due process violation, there must be: 1. Suggestiveness 2. Unnecessary 3. Very substantial likelihood of misidentification 4. must be by government official 5. not automatically excluded Factors that should be taken into account for photo ID (Manson): 1. Opportunity to view criminal at the time of the crime 2. Ws degree of attention 3. Accuracy of prior description 4. Ws level of certainty when identifying D at identification proceeding 5. Length of time between the crime and the ID procedure (shorter lapse, more likely witness is to remember, reliable ID) Take all of these factors and then weigh them against the corrupting effect of suggestive ID. Court argued in Manson that no one was pressuring the officer to make an ID, he was able to take his time in the privacy of his office. Problem of cross-racial ID needs to be acknowledged, because science shows that people of other races have difficulty IDing someone outside of our race. If this is an issue, the defense needs to seek out expert witness testimony about the possibility of cross-racial IDs to protect Defendant (some attys have been considered ineffective counsel because they did not make this argument, though not all courts will allow). While in theory if the prosecutor is able to show independent origin of a witnesss ID if the lineup is tainted, rarely if ever can the prosecutor show that there is independent origin for the ID. Almost certain that the witness will be barred from making in-court ID. 5th Amend protection against self-incrimination only protects testimonial evidence, not non-testimonial evidence. Can be forced to participate in lineup, give handwriting sample, take stance, etc. Saying something so that witness can hear the voice would not be testimonial evidence. Exception would occur if during a line-up police started interrogating a suspect, then 5th would apply. 6th Amend right to counsel at trial:

There is a 6th amend right to have counsel in any case (felony or misdemeanor) in this sense if you hire an atty for a misdemeanor with only a fine, judge cannot say that you cannot have your attorney. However, there is a larger issue about when what kind of case mandates appointed counsel. The rule the court has created regarding misdemeanor is the actual incarceration standard in Argersinger, which states that D has 6th amend right to appointed counsel only if the actual penalty involves incarceration (also includes suspended sentence). One day in jail is sufficient. D has to have been sentenced to some period of incarceration. This standard is only applicable after D has been sentenced. Would argue that incarceration is more Draconian that other punishments. As far as misdemeanors, right to counsel depends on sentence. If it involves actual jail time (either imposed or a suspended sentence), then there is a right to appointed counsel in the misdemeanor case. Does not involve possibility of jail time, just whether or not actual jail time is imposed. Problems with this system: 1. Repeated trialmandates appellate actions, inappropriate use of resources. 2. Services of attorney needed to secure pretrial release (bond), plea negotiations, can recognize errors on part of govt 3. Litigation is complex, a case can pose complex Constitutional, etc. questions whether or not incarceration ensues 4. Misdemeanor convictions can increase, or have other repercussions, on future sentences 5. Could have collateral consequencesdeportation, loss of work, custody rights, etc. 6. Can lead to an inappropriate sentence (judge may not impose jail time because knows will just result in Con. violation, retrial, etc.) When a D says he does not want an attorney, when has a right to one, must determine whether the waiver is knowing, intelligent, and voluntary. D must be appraised of certain information before this determination can be madenature of charges, range of penalties, attorney can advise D about whether plea is wise, etc. Hypo: As a judge, what do you do when a D insists on representing himself after he has validly waived his rights? Under Faretta, the judge cannot appoint a lawyer, has to allow D to represent himself under Sixth Amend. Have the right to represent ourselves, embedded in the 6th, because we have a right to the assistance of counsel. That means we can waive that assistance, D is still the main decisionmaker and has the right to refuse this aid.

Predominant concern in Constitution about convicting an innocent person. Personal liberty is considered a greater concern, as is a respect for human dignity. Blackmun dissented, arguing that society has an interest in seeing innocent people exhonerated. Judge can appoint standby counsel under McKaskle and this does not impinge on 6th amend rightsD still decides how case will proceed, witnesses to call, etc. Standby counsel can aid the D in getting evidence admitted, etc. There may come a point where standby counsel interferes, and that would be a Constitutional violation. Right to Effective Assistance of Counsel: Just because the D has an attorney does not mean D has been afforded right to effective assistance. When a D is making this claim, how to we determine its validity? Two part test under Strickland: 1. D must show that counsels performance was deficient, unreasonable professional assistance under the circumstances; Strong presumption that atty acted reasonably (not going to second-guess attorneys strategies, methods, decisions, etc.); Also concerned that being able to easily prevail on this claim would discourage people from becoming defense attys (potentially professionally and emotionally devastating); Creates potentially adversary relationship between attys and clients, does not foster relationship that leads to effective representation 2. D must show that deficient performance prejudiced the defense. Must prove reasonable probability that the outcome would have been different if his atty had performed in a reasonable, professional way; Not preponderance of the evidence, just a reasonable probability (standard is lower) Court has said there are some circumstances where counsel could not have provided requisite professional representation that we will assume ineffective counsel. Examples: Powell v. AlabamaSix days before trial, court appointed the entire bar to represent D and then day of trial picked out specific lawyer from group to actually represent D Cronic v. United States was found not to be ineffective assistance of counsel , court said circumstances were not bad enough to assume ineffective assistance of counsel. Have to show what atty did, or failed to do, that shows ineffective assistance and how D was prejudiced by this. Ineffective assistance of counsel. General rule to apply is the Strickland test 1. Ask whether D received unreasonable prof assistance under the circumstances

a. D must rebut a strong presumption that he received ineffective assistance. 2. Must prove he was prejudiced by this a. Reasonable probability the outcome would have been different had he been afforded reasonable assistance i. Less than a preponderance SCOTUS says in some instances, it is so unlikely, there will be a presumption he was denied that right. 1. D got attorney right before trial 2. Attorney 3 days before, no presumption Cronic v. US (p 570) 1. Attorney with real estate background, no trial experience, got case 30 days before trtial when prosecution had 4.5 yrs to prep 2. Court said no Assume the D was charged w armed robbery and he was caught on videotape. In opening argument at trial, the D said, he did it but he is exercising his right to have govt prove. D claims he received ineffective assistance of counsel bc attorney admitted and there is a presumption of ineffectiveness. Is there any more info needed? 1. Attorney adequately disclosed to D that he was going to acknowledge the guilt 2. D never objected nor consented Florida v Nixon (p 571). 1. D attorney acknowledged guilt and court concluded there was no presumption of ineffectiveness. 2. Nixon was a capitol murder case. Attorney was trying to save clients life since it was so evident that he was guilty. Preserved his credibility when arguing for clients life. 3. Look at language to distinguish. This is a capitol case and a 2 teir process. Also attorney strategy in that case was tenable to save persons life. 4. In hypo, there is no tenable strategy . Has a shot in non-capitol setting that D can avail himself of a presumption of prejudice. 5. A presumption of guilt might present a closer presumption (p 574) Remember in hypo, even if D cannot avail himself of presumption of ineffectiveness, may still make a claim of prejudiced by unreasonable professional assistance. a. Right to self-representation. defendant in a state criminal trial has the constitutional right to refuse appointed counsel and conduct the trial when he or she voluntarily and intelligently elects to do so. However, such a defendant may not later complain that he received ineffective assistance of counsel. i. Faretta v. California 1975

1. Issue: whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarilty and intelligently chose to do so? 2. Facts: D was charged with grand theft. He was appointed a public defender. But D wanted to represent himself. He had once done so before. D had high school diploma but thought P.D. are overloaded with cases. Judge said he would let D rep. himself but that the judge could reverse on this later. 3. Rule: The 6th amendment grants the accused personally the right to make his own defense. The right to self-representation is necessarily implied by the structure of the 6rh amendment. Right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails. 4. Reasoning: an unwanted counsel would represent the accused only through a tenuous and unacceptable legal fiction. Unless the accused has agreed in such representation, the defense presented is not the defense guaranteed him by the constn. 5. D. must still knowingly and intelligently for go the relinquished rights, however. And he should be made aware of the dangers and disadvantages of self-representation. ii. Note: however, Mcaskle v. wiggins upheld assignment o a standby counsel to assist D when D is largely unable to defend self. 1. ALSO D does not have right to be represented by another non-lawyer. Ake v Oklahoma (576) 1. D had right to free psychiatrist in case presenting insanity defense. Procedural due process claim. 2. In some instances, indigent D has right to not only assistance of counsel but also to other assistance. 3. Court applied a balancing test a. Matthews balancing test b. Matthews v eldrige i. Private interest at stake 1. Interest in life and liberty are compelling interest 2. The more important the interest at stake, the more likely to get procedural safe guard ii. The governmental interests affected if the safeguard is provided. 1. To the extent the govt is burdened, goes against the likelihood of getting.

2. Govt has a strong interest in a correct result iii. Value of the safeguard and the risk of an erroneous deprivation of the private interest at stake if the safeguard is not provided. 1. When D has made preliminary showing that his insanity will be a significant factor at his trial, an expert witness is very helpful to jury in making that determination. Indiana v. Edwards There is an exception to this constitutional right of self representation When D is suffering from a severe mental illness. Debilitating. Are not competent to handle a proceeding. Hypo: assume that we have a case involving a prisoner whose cell was searched without a warrant, no probable cause. Were his 4th amendment rights violated? 4th amendment only prohibits unreasonable search and seizure. Was there a search? Katz v US (p 30) 1. Court enunciated a test 2. A search has not occurred unless there has been an impingement upon the D legitimate (reasonable)expectation of privacy a. D must have had a subjective expectation of privacy in the area that was inspected b. That expectation must be one that society is prepared to recognize as reasonable. 3. Overhearing of conversation in phone booth. 4. Look at language of 4th amendment P 29 a. 4th amendment is designed to protect legitimate privacy expectations. 5. Court concluded there was a search, next question is was it reasonable search? and court said no. There is a warrant requirement, warrantless searches are presumptively illegal. Back to hypo: Was there a search within the meaning of the test? 1. SC held prisoners dont have a presumption of privacy in their cells. a. To keep prison safe, officers must be able to search for contraband b. Knives, drugs, cell phones, etc Assume we have a deputy sheriff walking on private property, lots of woods, and he is hoping he will find evidence of illegal activity and observes a 19 yr old having sex w a 17yr old. Age of consent is 18 and D has committed statutory rape. D has moved to suppress deputies testimony bc it is the Ds property. Oliver v US (p 36) 1. Ct held that inspections of open fields do not constitute searches within the 4th amendment. a. An open field is unoccupied land outside the cartilage. Constitutional

Arguments it is not a search 1. There is no legitimate expectation of privacy bc despite fences or no trespassing signs, these areas are open to the public. 2. Open fields are not a setting for the kind of intimate activities associated with the home that are sheltered by the 4th amendment 3. The literal language of the 4th amendment-purses, houses, papers and effects. (not open field) 4. Court felt that case by case approach was unworkable Arguments it is a search 1. There is a legitimate expectation of privacy because there places can be the setting for the kind of intimate activity sheltered by the 4th amendment 2. We have a tangible confirmation of the legitimacy of privacy expectations. Have the right to exclude someone from private property and generally when there is that right to exclude 3. *** The legitimacy is confirmed by trespass laws 4. Cite cases extending the 4th amendment beyond its literal scope-katz Open fields- inspection can occur no warrant, no probable cause Us v Dunn (p 42) 1. Meth cooking in barn. Agents came twice, climb over fences and barbed wire locked gate, used a flashlight etc to see within barn 2. Court concluded no search because it was outside the curtilage of the home a. Whether the area was within the enclosure that surrounded the home. i. The enclosure around the barn was separate from the one enclosing the house. b. Proximity to the home i. In this instance barn was 60 yrds from house, 50 from the fence surrounding the house c. Nature of the uses to which the area is put d. Steps taken to prevent observations of the area 3. Dissenters disagreed for 2 reasons: Ariel searches SCOTUS has said that evidence seen from a low-flying airplane does not violate a Ds expectation of reasonable privacy and thus is not a search within the meaning of 4th. Ca v Ciraolo (p 46) 1. Anonymous tip on marijuana growing in backyard. Had 6ft fence and 10 ft fence. Cops got in plane at 1000 ft and saw it. Got warrant on info about aerial surveillance 2. Ct concluded no search. a. Ct emphasized that plane was in publicly navigable airspace i. When its aerial surveillance, even though of the curtilage did not constitute a search. ii. Any person who is in private airplane could look down and see the same thing

b. Readily viewable to people in private airplanes with the naked eye c. No physical intrusion Change facts to plane at 400ft. Fl v Riley (p 49) 1. helicopter at 400 ft was not a search 2. Plurality: no search a. The helicopter was where it had a legal right to be i. Gave a lot of emphasis to the compliance w the law. b. Could still be impingment if helicopter whipping up a lot of dust, making a lot of noise etc. 3. Concurring (OConnor): question to be addressed is does the public travel in the area with sufficient regularity to make the privacy expectation unreasonable? a. Puts the burden on the D to prove the expectation of privacy was reasonable 4. Dissent (4 dissenters): focus is what comports with the 4th amendment : FAA regulations are designed for safety, not for 4th amendment rights. 4th amendment prohibits unreasonable searches and seizures but do not have to decide if unreasonable unless decide first that a search actually occurred SCOTUS has said to apply a literal definition of search. See if govt intruded into an area where a person has a legitimate expectation of privacy 1. D must have had the expectation 2. And society must have deemed that expectation reasonable Kyllo v US debate (p55) Did use of thermal imaging device to detect heat coming from the home meet the requirements to be a search? Y Arguments for: 1. Information about the interior of the house itself. 2. Sense-enhancing device being used. 3. Technology that is not available to the public a. Be careful because technology is always advancing and could lead to evisceration. 4. Can reveal intimate details involving legal activity 5. All details are intimate details Arguments against: 1. Revealing information about the exterior of the house.- discarded heat (off the wall surveillance) 2. California v greenwood (p 61)-(trashbag cash where there is no search) heat was discarded, garbage reveals info about the interior of the house as wellheat = garbage bag 3. Other cases where there was no search despite a sense enhancing device. (caballes P 79, knots p 65- beeper facilitated ability to track on public roads, smith v maryland p 74-pen registers) 4. Ca v greenwoodgoing through garbage can reveal details about legal activities but found okay. Oliver v US (open fields)

5. Observations can be made without technology (snow melting) 6. Just heat-limited information being disclosed (who cares) When scalia says all details are intimate details (stunning bc it is scalia!) Court concluded use of thermal device did constitute a search. When there is a sense enhancing device that obtains information about the inside of the home, that could not be obtained without intrusion is a search at least when the technology is generally not in use to the public. Hypo: there is a vehicle traveling down the street with radioactive sensor and alerts to a particular house. Is this legal? Remember that just because we have a search, doesnt mean it is illegal. Just need probably cause. Searches of trash Ca v Greenwood (p61) 1. No legitimate expectation of privacy in garbage bags placed at curb for pickup a. Burglars can go into a home, does that mean we have no legitimate expectation of privacy into our homes? b. Court mentioned bags were placed outside of the curtilage. If placed by side of house and they go on the land, it would likely be deemed a search Argument for search Reveals intimate details of lives. Reasonable expectation of privacy. Conveyed, but with expectation that it wont be open Argument against search Readily available to the public. Child, animaletc Express purpose to give it away US v Knotts (p 65) US v Caro (p68) 1. No search when the beeper was legally placed and is only being used to monitor where someone is on a public thoroughfare 2. Is the 4th amendment implicated when installed? When person who owns consents, no implication 3. Caro did implicate bc the beeper sent a message to what was going on inside the house. And what happens in the interior of the home is Smith v Maryland: 1. No search when police use a pen register Ill v Caballes (p79) 1. When the dog sniffed around the exterior of the car, that was not a search within the meaning of the 4th amendment. (limited information secured from the dog)

Hot issue: cell phone tracking. The stored communications act, can get a court order to get cell site logs but burden of proof is much lower. SCOTUS talked about distinction between expectation of privacy amongst one another vs govt. US v. Jones FBI planted GPS in a car, observe on public road movement. It is a search within 4th amendment. Why? People can see the movement publically. Majority: trespass on property. There was a physical intrusion. Even if there hasnt been, there was a reasonable expectation. Concurrence: Monitoring was done for a very long time. 1. Physical intrusion 2. Legitimate expectation of privacy Trespass-persons, houses, effects only

Assume: we have a D who met with his closest friend, who is actually a govt informant. The D makes a number of inculpatory statements to his friend. Friend ends up recording the statements. No warrant authorizing the electronic recording of that statement. Has that recording been a search triggering 4th amendment rights? 1. D has subjective expectation of privacy but society likely to recognize this. (Katz) 2. Argument for govt: risk of friend being a blabbermouth and thus risk of conversation being disclosed verbatim. What if the informant himself is not recording, but has a device that is transmitting to a third party? US v White (73) 1. No warrant needs to be secured before the listening to by a third party. 2. Distinction w Katz is that one party to the conversation consented to the electronic oversight. a. General rule is if one person consents, it is okay i. In phone booth, it is reasonable to expect privacy unless other person consents. Hypo: have a police officer Nancy Miller and has been told by informant D has been selling heroin at D home. Officer prepares a warrant application and an affidavit where she says I, Officer Miller have received reliable information from a credible person and I do believe heroin is being stored at D home at 202 Lynn St, Streator IL. Warrant issued and heroin found at this address. D attorney: move to suppress on grounds of no probable cause for the search. 1. Why do we require details relating to probable cause? The constitution places between us and govt a neutral person to make a probable cause assessment. 2. It is not enough that the review happen after the fact. a. Judges assessment may be colored by what was found during the search. 3. Judge must conclude there is a fair probability that contraband or evidence is in the home a. Also referred to as a substantial chance How might you revamp the warrant?

1. Give detail to reason why informant. a. Informant purchasing heroin from informant. i. Important for several reasons. 1. Informant made declaration against penal interest a. Because it is inculpatory, it makes it more likely he is telling the truth 2. Helps to show that informant had reliable source of information. a. If the informant has in the past provided reliable information, insert that fact Illinois v Gates (83) 1. When determining the probable cause, the magistrate should look at totality of the circumstances. There needs to be a fair probability (less than preponderance) a. 2 prong test: i. Veracity: there be an indication in the affidavit that the informant was credible and the information had to be reliable. 1. Is the informant making declaration against penal interest? 2. Has the informant provided reliable information in the past? 3. Is there corroboration of the details of the tip? ii. Basis of knowledge prong: why for the assertion that has been made by truthful person. 1. How the informant obtain the information? 2. Through observation, through admission 3. Could be info was acquired from someone else. If that is the case, we need an indication that the third party is truthful or reliable 4. Self-verifying details a. Draper v US: police received a tip from an informant who had been given reliable info in past. I said D was going to Chicago and would come back to Denver on either Sept 8 or 9. Described what clothes D would wear, bag to carry, that D would be walking quickly and that D would be carrying several ounces of heroin. On one of those dates, someone matching description walks out, conduct search and find evidence. 2. Court said dont think 2 prong test must be so rigid. 3. A deficiency in one prong could be compensated by a strong showing on the other prong. Assess the validity of an affidavit that says po has cause to suspect and does believe there is cocaine that was brought within the country and is located at a certain address. The cop has flawless record. Is there probable cause? NO Has strong veracity Issue is there are no basis of knowledge Nathanson v US (recited in Gates)

There must be enough details for the magistrate to make an independent assessment that the contraband is present on the premises. In Gates there was probable cause because: 1. Specific times, places, pattern of trips to Fl, immediate turn around to drive back to Chicago from Fl etc When a reviewing court is addressing a question of probable cause, the reviewing court will not undertake a de novo review. (will not ask itself would we have issued a warrant under those facts) Will look to see if there was a substantial basis for the Magistrates decision that there was probable cause. The reason we accord deference is to encourage cops to go to secure a warrant. If you are P and have a D on appeal claiming unconstitutional search, emphasize to court that all we are looking to see is if there is a substantial basis. Assume: we have triplets (all male) a woman is raped and she provides a description that matches the identical triplets. And the rapist used a condom and there is no other forensic evidence. Assume all three triplets arrested, the P is going to argue there is probable cause based on Maryland v Pringle Maryland v Pringle (90) 1. Officer pulled over car for traffic violation and ended up w cocaine arrest. No one admitted so all three arrested. Next day D admitted and then claimed no probable cause. 2. Court said there was probable cause. If you represent the D, how would you distinguish from Pringle? 1. Only one of the three committed the rape, in Pringle, there was a chance all three could have known about and been in dominion and possession of the drugs. a. Small car, evidence in front seat and back seat, when asked whos they were, no one would offer any information. 2. Highlight the language that court refused to describe probable cause in terms of percentages. It is very fact specific. a. There isnt a probability all three of them committed. If confronting a case dealing w the implications of Pringle, it can be effective to take argument and show practical implications. 1. Crime involving a minority and a witness testifies she saw an African American breaking into a house, does that create probable cause to haul in all 3 to preclude someone else coming into town. Whren v us (92) 1. Started as traffic violation and ended up as drug arrest. 2. Officer stated he was originally going to give them a warning ticket 3. D argument was that officer pulled him over based on pretext and not for violationdriving while black

a. D said reasonable officer test and objective test is not met. b. Not looking at the officers subjective intent. 4. Court said it is not reasonable to figure out what reasonable officer would do, it is unworkable. 5. Court says to look at whether a reasonable officer COULD have made the stop. a. Here they sped off and turned without signaling, they could have given ticket 6. Raises problem of racial profiling. a. 4th amendment doesnt care about that b. The constitution cares about that. It gets Equal Protection Clausenot 4th amendment. requirements to be met for warrant to validly be issued 1. Probable cause 2. Supported by oath or affirmation 3. Be issued by a neutral judicial officer. a. Lo-ji sales (98) brings neutrality issue. 4. Specificity requirements: a. Warrant must specifically describe the place to be searched. i. Usually okay to put address, if multiple unit building, specify unit b. The persons or items to be seized. i. Prevent issues from general warrants. Andresen V MD (98) 1. End of the warrants language looks like a general warrant. Court concluded it was valid because that was a part of a sentence that had specifics related to crime of false pretenses. 2. other fruits and instrumentalities of crime 3. Dont take phrases in isolation but look at warrant as a whole. Groh v Ramirez (101) 1. Court ruled warrant was invalid because it failed to describe the thing to be seized, even though application is specific. a. Affidavit and application listed things in specificity but warrant itself did not. b. Appearance is that there is no reign on authority to intrude or limit of intrusion. 2. We want the magistrate to determine the scope that there is probable cause to believe that item is in the house and the scope of the search 3. When the cops knock on the door, the warrant is handed to let you know if looking for one thing or 100 things. It is to apprise you to the degree to which your privacy is to be intruded upon. 4. Lower courts have held specificity can be met if it incorporates by reference the detailed listing and that it accompanies the warrant. 4th Amendment Requirements to be met for search warrant to be valid: 1. Must specifically describe the place to be searched 2. Specifically describe the person or items to be seized.

Maryland v Garrison (116) 1. Cops went to 3rd floor and searched 2 apartments because warrant authorized search for third floor apartment and there were 2 apartments. 2. Court said warrant was valid because they made a reasonable error. 3. There was info received from reliable informant, checked building for outside and couldnt tell, checked w utility company etc. 4. A warrant can be considered reasonable and valid even if predicated on error, as long as that error is reasonable. a. The case would have been different if the officers had known or should have known there were 2 apartments. 5. Since the 4th amendment prohibits unreasonable searches and seizures, the police must be reasonable in the searches 6. Second issue was if the execution was unreasonable a. Court said it is evident officers had authority to be on third floor and reasonable officer would not have perceived there were 2 separate units. b. If they had known or should have known 2 separate apartments, would not have been valid. Just because they have the authority to search a place, does not necessarily mean they have the authority to search people at that place (Ybarra v IL (107)). Warrant could not properly be construed as implicit to search everyone on the premises. While a search warrant may authorize the search of a person, the court has held in some circumstances, it will provide the implicit authority to detain people where the search is being held (Michigan v Summers 107). The court balanced several interests to assess reasonableness: 1. Nature of the intrusion against the need for the intrusion a. Need: need to detain the owner/occupant for several reasons i. Promotes governmental interest in preventing flight ii. Protect the safety of officers and others iii. Facilitate and orderly search iv. Search warrant did provide an objective indicator of the reasonable detention b. Nature of intrusion: i. Doesnt add significantly to the stigma ii. Police would be unlikely to exploit the detention to get other evidence Bottom line: the search warrant implicitly authorizes the detention of the place about to be searched. Assume: we have a search warrant and the cops are looking for evidence of multiple crimes involving identity theft allegedly perpetrated by the owner. 2 cops come, slap cuffs on the owner, search for 5 hrs

and find nothing, owner files Section 1983 suit and you are representing him. What are the arguments on his behalf? Muehler v Mena (107) 1. Cuffed is additional seizure, and reasonableness is analyzed separately. (not an ordinary search) 2. Court upheld detention of individuals in the home when search executed. 3. They were gang members investigating a drive by shooting. a. By contrast ID theft has no indication there is any concern he was armed and dangerous and looking for evidence of a non-violent crime 4. They were suspected illegal immigrants (potential higher flight risk) 5. Larger group to manage while looking and thus greater need for cuffing. 6. They were cuffed for 2-3 hrs but in hypo, it is for 5 hrs. It is much more intrusive. a. Argue detention in an unreasonable manner to cuff the client b. And that if it was constitutional to cuff at the outset, it was unreasonable in its duration. Just because a step might augment the safety of a police officer does not mean it is constitutional Search warrant for cocaine in D apartment. When cops got to door, they yelled police, search warrant and rapped really hard, waited 15-20 seconds and when no one came to door, they broke open door w battering ram. D was in shower and did not hear. Assume police find evidence of cocaine in D apartment. What is D argument? Wilson v AR (110) 1. Subsumed within the 4th amendment is a knock and announce requirement. a. Here they did it. 2. Court said it has basically existed forever, was in common law and in state constitutions. a. Falls within reasonableness requirement of 4th amendment 3. Purpose of knock and announce: prevent destruction of the door. a. Can open the door as opposed to having the door destroyed. 4. D argument for hypo is that it is perfunctory and not real compliance a. Must be adequate time to go to door to preserve it. 5. P response is that what police are going to search for could be destroyed if they wait. Depend on why the police was there, and how soon the potential evidence could have been destroyed. Richardson v Wi (112) 1. Is there a categorical exemption from knock and announce in a drug case? a. Court rejected and said must analyze on a case by case basis whether the police need to follow knock and announce b. In order to justify no-knock entry the police must have a reasonable suspicion that knocking and announcing would be dangerous or futile or would inhibit effective investigation. US v Banks (115) 1. Was this fact pattern, court said was reasonable. 2. What is a reasonable time lapse before breaking down a door will depend on the particular facts of the case.

Failure to knock and announce cannot be violation of 4th amendment if: 1. There is reasonable suspicion a. Dangerous b. Futile c. Lead to destruction of evidence LA County v Rettele (119) 1. Police looking for black suspects, investigating non-violent crimes, they search warrant on premises of Caucasians who are naked w guns and make them be there 1-2 min. 2. Court did not see any problem here a. Was only a short time before they were allowed to dress. b. There was a valid search warrant and they have authority to secure the scene. They knew one of suspects had legal possession of gun and they had right to get them out of bed. c. As for race, just because the specific suspects were of one race, doesnt mean they werent complicit of individuals of another race. 3. The court reminds us all that is necessary to issue a warrant is probable cause. This means it is more likely than not that the cops will NOT find anything. Hypo: the warrant obtained from federal magistrate authorizing arrest for stock broker for securities fraud. Cops knew he was opera buff, went to opera house and arrested him in front of everyone. Officers were conducting a standard search, did not find any contraband of evidence of the crime (and didnt expect to). D wants to know if can sue. 1. Cops had no reason to believe he was armed. 2. Another purpose to search is to locate evidence of the crime that may be destroyed. a. In this hypo, no evidence to believe this is true. 3. The court has articulated a bright line rule that it if they have validly arrested someone, they can conduct a search incident to arrest. U.S. v Robinson (125)-search conducted incident to arrest and they found cigg container w drugs, court said okay. Knowles v Iowa (126) 1. There is no such thing as search incident to citation. 2. If officer had arrested D, he could have conducted the search 3. But in this case, he just issued a citation thus the search was no good a. Why the difference between Knowles and Robinson? i. There is a world of difference between arresting someone and just giving a ticket 1. An arrest is more threatening and more likely to provoke a violent reaction.

2. When someone is arrested, that person is going to around the cops longer and will have more time to extricate a weapon and use it against the cop. What is the permissible scope with a search incident to arrest? Cops come in and validly arrest LB, where can they search as incident to arrest? 1. Can search her person (can cover the genital area and the like but no body cavities) 2. Can search her purse and briefcase 3. Basically, anything in the area within her immediate control a. Typically described as within wingspan 4. If there were a warrantless search of a chest of drawers across the room, it would not be under incident to arrest. Assume there is probable cause to believe the D was involved in bank robbery last week. Go to home, follow knock and announce and enter home w/o warrant and arrest him. Is the arrest legal? No. Payton v NY (128). 1. Confirms hypo is invalid 2. Court made general rule that before arresting someone in his or her own home, the police must secure an arrest warrant. 3. Reasons: a. There is a special sanctity to our homes. b. 4th amendment itself was a response to concerns about police invasions c. And before police can go into homes to search for stuff, they must get a warrant i. And when going in to get a person, it is a similar kind of invasion. 1. D may try to hide and in finding him cops may reveal personal stuff. 4. Must also have requirement for probable cause but also reason to believe the arrestee is there. a. If arrestee is out of town, they cannot serve arrest warrant to search home improperly b. Dont have to have affirmative indication there, but if there is reason to think there may be absence, cannot do it Assume: the cops observe a drug deal occurring on school grounds. The dealer noticed the cops spotted him, runs away and runs right into his house, must cops secure a warrant prior to arresting him? No Warden, MD penitentiary v Hayden (127) 1. Exigent circumstances exception. 2. Described by SCOTUS as one kind of exigent circumstance that excuses a warrantless entry into the home is when cops in hot pursuit. 3. In hypo, drug dealer sees cops, runs away and runs right into his house. 4. An arrestee cannot defeat arrest by running into a private place. a. Hot pursuit applies whether running into his own home or someone elses Assume police procure arrest warrant, go to D home to arrest him and wife says hes next door playing cards. Can they go into neighbors house and arrest him? No. They need a search warrant before going into the home of a third party unless there are exigent circumstances or neighbors consent to warrantless entry. When police go into home of neighbor, it is new 4th amendment intrusion.

Exigent circumstances One example is hot pursuit Sometimes a concern that evidence within a home will be destroyed is reason enough to permit a warrantless entry Police must first have probable cause to believe there is evidence in the home and there must be probable cause to believe the evidence faces imminent destruction. Welsh v Wisconsin (220) 1. Drunk drove car into field, abandoned vehicle and walked home; witness called police who followed him, went into home and found him asleep and naked in bed 2. Ct concluded no exigent circumstances here: a. It was evidence for a minor crime 3. Relevant factors: a. Seriousness of the crime i. In this jurisdiction at the time, first time DD was a non-jailable traffic offense 4. although no exigency is created simply because there is probable cause that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned Brigham city (222) 1. Police got noise complaint at 0300, didnt see anything in front, went around back and saw two kids drinking and heard fight etc and stepped in to break it up 2. Ct said constitutional because a. Reasonable to believe entry needed to render emergency assistance to someone b. Or, to protect someone within the home from imminent serious injury 3. It doesnt matter whether or not the officer believed he needed to protect someone, all that is needed is a reasonable police officer could have had that belief Another type of exigent circumstance: Protective sweeps 1. Cops go into home, have arrest warrant, and find someone right there. As search incident to arrest they can search what is within reach 2. Sometimes the police may be able to conduct a protective sweep 3. It is only a cursory inspection of places where a person might be found if there is reasonable suspicion that the area contains a person who poses a danger to someone on the scene. a. Can work in concert with plain view exception because they are legally there Assume there have been a rash of burglaries in neighborhood and in one a very expensive rolex was taken. And the police suspect the D is the burglar but dont know. Cop says will check and see where he was night of burglary. Goes to house and asks to speak w him, D says sure, invites him in and notices a watch there (the missing one) and the officer flips over the watch and there are the initials of the watches owner. D arrested for that particular burglary and govt wants to use that watch. What are D arguments? Arizona v Hicks (135)

1. Cops in apartment and officer sees equipment and suspects it was stolen but the officer did not have probable cause so he moved it a few inches to see serial numbers and determined it was stolen and seized. 2. Moving it was a search and that the cops cannot touch without probable cause. 3. Go back to hypo, watch would be suppressed under Hicks If there is probable cause to believe evidence of a crime and have lawful presence in apartment, does the officer have to leave to get warrant to take it? No, under Plain view doctrine. To require them to get a warrant would be a needless inconvenience. Plain view doctrine requirements: 1. The initial intrusion must have comported with the 4th amendment (a warrant for example) a. Sometimes plain view will precede the entry into a home. i. The succeeding intrusion to procure must abide by 4th amendment requirements, which means generally, a search warrant must be obtained. 2. The incriminating meaning of the item must be immediately apparent. a. Must have probable cause it is contraband or evidence of a crime. Assume we have a reliable informant who tells FBI that D is involved in counterfeiting crime and there is other evidence linking. Tells he saw equipment in home. Police go to arrest and there in plain view they see the equipment. Can it be suppressed? No Horton v Ca (133) 1. There is no inadvertency requirement limitation on the plain view doctrine 2. As long as they are lawfully there and see something in plain view, they can seize it even if they anticipated it being there. Her question is does this undermine protects under the 4th amendment? If have an arrest warrant, they must hope the evidence is in plain view, otherwise they cannot search around the house to seize the item. So there is still an incentive to get the search warrant and it will not gut the 4th amendment. Plain feel doctrine: part of the subject of Min v Dickerson (136) If police conducting a lawful search and they feel something and the way that item feels, establishes probable cause it may be contraband or evidence, they may seize it. We have a car that cop sees speeding and it stopped and the cop sees the driver lean over and appear to shove something under the passenger side of the seat. Window rolls down and cop smells marijuana. In car, under passenger seat, cop finds paper bag w marijuana. D moves to suppress. What is response? 1. The smell of the marijuana plus the surreptitious movement is probable cause to believe there is marijuana. 2. The automobile exception a. If the cop has probable cause to believe there is contraband or evidence of a crime in the car, the search is constitutional. i. Rational: 1. The mobility of the vehicle

2. We have diminished expectations of privacy in our cars a. Can see a lot of what is in the car b. Regulation of vehicles and drivers c. Typically they are not the storage place for the kinds of personal items found in our homes Change facts to assume that the car search occurred at the police station. Does that change the result at all? No Chambers v Maroney (141) 1. Relies on diminished privacy expectations. 2. If the police believe they have probable cause, it gives authority to search the scene or seize it. 3. Practical reason is that if warrant required to procure at the station, it wont do anything bc cops will search at the scene and that can be dangerous. (place and time) as opposed to taking it in and searching at the station. Back to hypo, but not just warrantless search of car, but also of container. Is that constitutional? Ca v Acevedo (142) 1. If police have probable cause to believe there is evidence of a crime in a car, they can search those places in a car and that item that gives them reason to believe it might be found. a. Same rule that is found in houses. Assume this is open question and you are arguing against making open containers: 1. We have a legitimate expectation of privacy to our cars unless there is probable cause. 2. Have full expectations of privacy in containers. a. Cant see inside it b. Is not regulated c. Could be a place where we normally keep private things. While SCOTUS has concluded searches are extended to containers in cars. We can see reasons why it could go the other way. Know Acevado and Ca v Carney. Diminished expectation of privacy of cars and they are heavily regulated and dont typically keep in cars the types of private items found in homes (reasons for automobile exception) Ca v Acevedo (142) 1. Court said containers can be searched if there is probable cause (even in the trunk) 2. By permitting the officer to search the sack, it potentially diminishes the owners right to privacy a. Court allowed because it reduces the intrusiveness of cops looking further in depth in other places b. In addition, there is the possibility the contraband is elsewhere so it may result in them seizing the car to get a warrant to search elsewhere. If the police had probable cause to believe there was cocaine in LBs briefcase and she went to park and left her briefcase on the bench while looked elsewhere. Can the police search it without a warrant? No, this is discussed in Scalias concurrence in Acevedo. 1. If cops come across an abandoned container in a park, they must get a warrant.

Same instance but she gets in the car and puts briefcase in car. Can they search it under the automobile exception? 1. If the probable cause is confined to one particular container, the warrantless search of the briefcase once it is in the car is legal (Under Acevedo) 2. Under the automobile exception, the police may search anyplace within the car, even if in a container with probable cause. a. Said if it is truly confined to the container, cannot go into passenger compartment unless, there is probable cause to search there as well. Hypo: cops have probable cause to believe 2 individuals traveling together who each have their own suitcases, are carrying marijuana. They are traveling in mobile home. One sleeps in mobile home, the other in a motel room. They go to bed and cops search hotel room and mobile home without a warrant. Assess constitutionality of warrantless searches. 1. Motel room unconstitutional 2. Mobile home constitutional under ca v carney (139) a. The mobility still applies b. And the regulation is still heavily enforced. c. As long as the police have probable cause, the automobile exception applies. Original hypo, of cop smelling marijuana after speeding stop., Finds out he has suspended license and arrests him. Prosecutor says defend under constitutionality under as many ways as possible 1. NY v Belton (147)- after an arrest, the passenger compartment can be searched a. As long as there is a valid arrest of an occupant of the car, the police can search the compartment of the car including any container within the car. b. The suspect right by the side of the car. Still okay c. Does not extend to trunk, as incident to arrest The gant case does not overrule belton or thornton completely. The driver is standing within reaching distance of the car, officers can still do search incident to arrest. Under Gant (sup 1) 1. Cops can search as long as occupant is not secured 2. And it is within reaching distance 3. If secured, generally no search incident to arrest, unless reasonable to believe there are evidence related to the crime which the D is arrested. That passenger compartment and the container within it can be searched under search incident to arrest Now D is arrested and secured in squad car. What is offense he was arrested for? Under Gant, it would no longer be okay because the arresting offense was for suspended license and there is no further evidence needed to prove this. 1. Separate and apart from above two rules, there can be a search incident to arrest as long as it is reasonable to believe there is contraband or evidence related to the crime of arrest in the vehicle.

2. In this case, the D was stopped for speeding, they smelled marijuana, arrested under suspended license. If he was only arrested for driving on suspended license and in car, would not be able to defend the search. 3. Note the significance of the crime of which the D is arrested. If the cop arrested the driver for possession of marijuana, the cop could go back and search the car. 4. The court uses the reasonable to believe language for a reason in Gaunt. Most courts construe as reasonable suspicion. Searches incident to arrest in vehicle context. As an incident to arrest the officer can search the person and anything within their immediate control (wingspan). In Chimel v CA the court literally talked about what if cops had probable cause to believe there drugs upstairs, they cannot go upstairs to search. In NY v Belton (car context) the court upheld warrantless search of passenger compartment, including a container in the passenger compartment (bright-line rule) Thornton v us (150) the driver was out of the car as the cop was approaching. Did a pat-down, put driver in car and then searched the car and found other things. The court focused on guy outside the car. Said can still search the car. AZ v Gant. D is also secure in the squad car at the time of the search and cop searches. Once D is secure and not within reaching distance, the search cannot be justified on first prong. (Belton) In Gant, court said even if D is secure as an incident to arrest, the police can search if it is reasonable to believe that within that area, there is evidence relating to the crime for which that D has been arrested. Right now the cops cannot search the trunk as a search incident to arrest (Belton maintains) When analyzing the legality of a search, take it theory by theory. Contrast with if you are in a home, regardless what you are arrested for, cannot further search the house, can only search within wingspan as search incident to arrest. Has nothing to do with why was arrested. Inventory Search Theory. SD v Opperman (153) 1. Court condoned warrantless inventory searches of vehicles 2. D parked illegally, car eventually was towed and an inventory search was conducted and marijuana found in car and he was charged w possession when he went to claim his car. 3. Court concludes this is reasonable for a few reasons (balancing test): a. Protect the owners property b. Protect the police from false claims of theft c. Protect the public from guns or drugs that might be in the vehicle i. Justice marshall was not happy about this because too broad

d. Help the police determine if the car is abandoned or stolen 4. Court emphasized multiple times that inventory search in that case had been conducted pursuant to standard inventory procedures a. Very important factor that points to the inventory search being reasonable When evaluating, look to see if there are standard inventory procedures and if they sufficiently limit the officers discretion. This makes the nature of the intrusion less and thus more likely to be okay. Illinois v Lafayette (157) 1. D was searched as well as his man-bag during process of booking procedure at jail. 2. Can inventory for same reasons as w car. Except instead of showing if stolen, helps w ID Car searches: 1. Automobile exception, 2. Search incident to arrest 3. Inventory searches There is no least requirement than the 4th amdt. Border searches As a general rule, we can be stopped at the border, searched at the border, have property inspected and no warrant is needed nor individualized suspicion. Significant interest in protecting our borders from drugs, illegal aliens, terrorists, diseases US v Flores-Montano (159) 1. Warrantless search of gas-tank okay 2. Car detained for 1 hr while gas tank was dissembled and searched. 3. Even though no reasonable suspicion, it does not matter US v Ramsey (162) 1. Border rule extends to incoming mail. When the detention is longer than reasonable, it must be based on reasonable suspicion (less than probable cause) US v Montoya-Hernandez (164) 1. Drug mule w balloons held >24 hrs before warrant obtained. 2. There was reasonable suspicion in this case. a. Carrying cash b. No place to stay c. No idea how her ticket was purchased etc 3. Reasonableness of the detention is fact specific. 4. The reason they detained her is because they suspected she was smuggling drugs and the court said fine. 5. Court said part of the length of the detention was her fault because she went to heroic measures TO NOT USE RESTROOM. 6. When looking at reasonableness of seizure or search, look at the facts of the case. Checkpoints Michigan v Sitz (169)

1. Constitutionality of DD checkpoint case. Balancing test. There was immediate objective to preserve lives. 2. Assume issue before the court is an open one. (look at the nature of the intrusion and balance against the need for intrusion) a. Unconstitutional i. Nature: 1. Even with the short duration, it is intrusive a. Analogize to officer moving stereo 1in to see serial numbers 2. They are investigating a crime (not a benign administrative process) 3. More intrusive because at night and thus scarier 4. Checkpoints are not fixed.- no advance notice to alert driver of the inconvenience 5. Even if people are law abiding, they are not spotless (married person with fling) and may be embarrassed ii. Need: 1. Low percent arrested (1.6 percent) 2. No evidence that the checkpoints are more effective than using roving patrol units 3. The purposes will be disserved with notice b. Constitutional i. Nature: 1. average delay was 25 seconds 2. stopped everyone a. no officer discretion 3. not for an infinite duration 4. set up in accordance with guidelines a. further limits officer discretion ii. Need: 1. Deterrence 2. Avert the danger posed by that driver that night 3. Over 25,000 people die each year 4. Nearly 1 million personal injuries 5. 5 billion in property damage 6. Signs of intoxication can be difficult to discern by roving units US v Martinez Fuerte (161) 1. checkpoints for illegals valid even though no warrant or probable cause. 2. This is distinguished because they are border-vicinity structures City of Indianapolis v Edmond (171) 1. Checkpoint for illegal drugs. 2. In Sitz, hit rate was 1.6% for drunk driving 3. In Martinez-Fuerte the hit rate was 0.12% to determine illegal aliens 4. In Edmond, the hit rate is 9% and 4.2% were arrested for non-drug crimes

5. Key distinguishing point is why the checkpoints were being operated. The difference between Edmonds and Sitz is that, in Edmonds, the primary purpose of the checkpoint was to detect evidence of ordinary criminal wrongdoing. 6. A checkpoint whose primary purpose is general criminal wrongdoing is unconstitutional a. Sitz is about protecting from an immediate safety threat vs a lets get the criminal 7. Justice Thomas doubts the framers would have thought either Sitz or Edmonds was reasonable. a. He thinks we need to go back and look at Sitz and get that overturned. In Illinois v. Lidster SCOTUS said a checkpoint to ask passing motorists about whether the had witnessed a hit and run at that location, was permissible. Purpose was not to ask vehicle occupants if committing a crime but to ask for their help as members of the public about a crime likely committed by someone else. LAW ENFORCEMENT OFFICERS DO NOT VOILATE 4TH MERELY BY APPROACHING AN INDIVIDUAL ON THE STREET OR IN ANOTHER PUBLIC PLACE, BY ASKING HIM IF HE IS WILLING TO ANSWER SOME QUESTIONS. Consent searches Assume we have a 16 yo stopped for traffic violations and then the officers asks if he can search the car and he doesnt know he can say no, says okay. Cop finds several cans of beer and charges D with underage drinking. If D tries to suppress on grounds of unconstitutional warrantless search, the P must argue D gave valid consent Schneckloth v Bustamonte (176) 1. Apply a totality of the circumstances test to determine whether the consent was voluntary. 2. D argued couldnt have validly consented bc he did not know he could say no 3. Court said did not matter and that there can be a voluntary consent even though he is not aware of his right to withhold his consent. 4. Can be a valid consent even if D believe there is not a chance to say no. 5. D knowledge or lack of knowledge is relevant as a factor. Why doesnt waiver of 4th amendment rights have to be knowing intelligent and voluntary? 1. The court said it would be hard for govt to prove D knew he had the right to withhold consent. 2. Response would be to say you dont have to let me but can I? 3. Court said this type of warning is impractical 4. That standard is used in talking about preserving the fairness of the trial. That is not what the 4th amendment is about. a. Has nothing to do with imprisonment of innocent people, therefore a different standard applies. If someone consents, the police must confine their search to the scope of the consent given. If looking at basis to suppress 1. Was consent voluntary 2. Did search exceed boundaries of consent given 3. Authority

Authority to give consent US v Matlock (182) a third party may validly consent to the search of premises they are mutually using and they generally have joint access and control for most purposes. A search will also be constitutional when the person giving the consent has apparent authority. The police reasonably believe the third party has actual authority Reasonably believe the person is living there Apparent authority Assume D living in apartment w a woman and the woman has a twin sister. The twin sister comes to visit and while the two who live there was gone, the twin finds evidence linking the BF to drug activity and calls the cops and says my BF is involved in drugs, come on over. The cops reasonably believe the woman lives there, if they conduct the search and find evidence, the drugs will be admitted. GA v Randolf (182) 1. The search cannot be justified as a consent search if one party denies consent under the consent theory. 2. Evidence cannot be used against the objected party Searches of probationers and parolees US v Knights (186) 1. Dt walked into apartment to search, no warrant or probable cause. Had reasonable suspicion 2. Ct upheld because special needs search 3. Search of probationers residence is the nature of the intrusion v need a. Ct said he was subject to probation condition and this make him subject without any cause and that diminished b. Upheld search predicated only on reasonable suspicion for probationers Sampson v Ca (188) 1. Cop knew he was on parole but had no basis for belief of carrying anything illegal 2. Searches without any suspicion, finds meth in cigarette package 3. I: is suspicion less search against 4th amendment? 4. H: no a. Just by being parolee, D had severely diminished expectations of privacy. b. Subject to parole condition c. If we were to require a cop to have reasonable suspicion, that would curb govt ability to supervise parolees. 5. Q that is open is what if same facts but person on probation? a. Ct distinguished parole from probation i. Parole more akin to imprisonment Special needs searches: 1. Is one whose immediate objective is something other than apprehending a criminal or finding evidence of a crime Camara (191) 1. Case involving administrative (regulatory) searches

If being conducted not to uncover evidence, do they still go under 4th amendment.ct says yes. Is a warrant needed before an administrative inspection such as this one? Ct said the warrant is needed. Must there be specific probable cause in order for the warrant to be issued? a. Ct said no. conducted balancing test i. Nature: not as intrusive when regulatory workers inspect, bc it is benign purpose ii. Need: even if not grounded on specific probable cause, it is still needed bc you cannot see from outside what inside conditions may be. iii. As long as inspection authorized by neutral legislative criteria that sufficiently limit the search criteria, it is authorized. Sometimes administrative inspections will be C even if conducted w/o warrant NY v Burger (196) 1. Ct upheld validity of warrantless search 2. It is more likely the warrantless inspection will be upheld if it is of a closely regulated industry. 3. Ct said nature is not that intrusive due to close regulation 4. The facts that underlay conclusion that closely regulated: a. Required to have license b. Must keep police book- records that govt may peruse c. Must display registration prominently Drug Testing Assume not decided by SCOTUS and we will find reasons in decided whether Constitutional or not. Warrantless and not predicated on individualized suspicion or reasonable suspicion. Employ balancing test Vernonia (201) Nature of the Intrusion Plaintiff (student): 1. Observation of the urination-visual and aural for boys, girls aural 2. On command (that they may not be ready to urinate) 3. False positives 4. Delay in awaiting test results 5. Singling out one segment of student body-stigmatizing the athletes 6. Nothing the athletes can do to avoid the test 7. Particularly humiliating and degrading to such young people 8. Can lead to disclosure of private information (pregnancy, diabetesetc) 9. Age Defense (school): 1. Not testing for other medical conditions 2. Limited number of drugs testing for 3. Very common to be subject to such observations when using public restroom 4. communal undress of athletes leads to diminished privacy expectations 5. Over 99% accurate 2. 3. 4. 5.

6. If a positive there was retesting 7. Any problem of false positives is limited by student disclosure on confidential form of other medication being taken 8. Disclosure of test results were on need to know basis to limited number of individuals defined in school policy 9. Random selection or people being tested-limits possibility of picking on kids. a. Discretion tends to be exercised against minorities 10. Effects of waiting are inconsequential 11. Notice-aware of policy and possibility for testing 12. Athletes are subject to a lot of regulations that other students arent-diminished privacy expectations 13. Consequences of a positive test were not that onerous (POLICY WILL HELP KIDS W DRUG PROBLEMS) 14. Test results will not be turned over to law enforcement officials 15. Athletes have diminished privacy expectations bc they have to go through physical exam before they can be a member of the team 16. School officials acting in loco parentis Need for intrusion: Defense: 1. Safety and health of athletes 2. Young people more vulnerable to addiction 3. Reasonable suspicion requirement is burdensome and will have other adverse effects a. Can lead to targeting of students based on stereotypes b. Catalyze lawsuits c. Distract the teachers from their teaching obligations d. Teachers are not skilled or trained to discern the signs of drug impairment 4. This is the most effective way of ferreting out drug use amongst the athletes-may be no visual signs of impairment 5. Athletes were fomenting the drug problem 6. Considered role models by many students-particularly at such a young age a. We want them to be clean 7. Having real disruption in the school state of rebellion due to drugs 8. Impedes learning 9. Deter the use of drugs Plaintiff: 1. Evidence regarding the safety problem in that school district was predicated on speculation and assumptions 2. Students (athletes) are under constant supervision facilitating the development of individualized suspicion. 3. Less drastic alternative is to get the monitors out of the bathroom 4. Some parental opposition

5. One of the values of the reasonable suspicion requirement is that a student can avoid this simply by behaving. Other SC case law Skinner (199) 1. RR WORKERS WERE DRUG TESTED IF A TRAIN WAS INVOLVED IN AN ACCIDENT (suspicion less drug testing allowed) 2. SCOTUS said this was reasonable 3. How to distinguish Skinner? a. Nature: i. The RR industry is so highly regulated ii. Children is more intrusive than the testing of adults because they are so sensitive b. Need: i. Very high- significant risk of severe harm and even death National Treasury v Vonn Rob (200) 1. Court upheld suspicionless drug testing of people transferred or promoted into position where people involved w drug testing or customs 2. Distinguish a. Need for the intrusion i. Need for enforcement of drug laws ii. Anyone who carries a firearm should be sober--safety Chandler v Miller (200) 1. The court struck down suspicion less drug testing in people running for state office. 2. Ct said these people not immediately involved in drug interdiction efforts and so is just symbolic Board of Ed v Earls (208) 1. Vernonia on the books 2. This case involves testing all students in extracurricular activities 3. In vernonia, the evidence is that the athletes are leading the drug activity, there is no evidence in this case that is the case and actually studies that show these are the kids least likely to be involved. 4. Superintendent acknowledges not a huge drug issue at this school 5. The dissenters mocked the majority view 6. Open question is would suspicion less testing of all students in the high school be constitutional? Ferguson (215) 1. Hospitals drug testing pregnant women 2. Designed to get women into treatment due to dangers of drug use while pregnant. 3. 250 tested +, only 30 arrested and 2 prosecuted. 4. Ct said it was unconstitutional 5. They dont know they are being tested for illegal drugs 6. Ct said we need to look at the immediate objective of the drug testing a. In this case, it was to gather evidence to be used for law enforcement purposes 7. Ct distinguishes between immediate search and long-term goal

a. Long term goal is protecting needs of mother and child b. If this were allowed, every search would be a special needs search 8. Police even had access to medical files Safford (sup 11) Contrast Safford from Vernonia and Earles 1. 13 y/o pulled out bra and panties and there was reasonable suspicion of distributing pills at school. 2. Ct concludes that this was unconstitutional 3. In order for a search of a student to occur, there must be reasonable suspicion that there has been violation of a crime or violation of school rules a. It existed here. As far as searching outer clothing and backpack, that was fine. b. Ct treated as a strip search i. There must be a distinct justification for that separate search. ii. Separate reasonable suspicion that the item is in the underwear iii. Did not exist in this case 4. In addition, the search must be reasonable in scope a. Must be reasonably related to the searches objective and b. Must not be excessively intrusive in light of the students age and gender and the nature of the infraction i. Suspected infraction was for common pain relievers ii. No reason to believe they posed a large danger or that they were being widely spread. iii. If there is reason to believe a gun is brought, might be okay Exigent circumstances One example is hot pursuit Sometimes a concern that evidence within a home will be destroyed is reason enough to permit a warrantless entry Police must first have probable cause to believe there is evidence in the home and there must be probable cause to believe the evidence faces imminent destruction. Welsh v Wisconsin (220) 5. Drunk drove car into field, abandoned vehicle and walked home; witness called police who followed him, went into home and found him asleep and naked in bed 6. Ct concluded no exigent circumstances here: a. It was evidence for a minor crime 7. Relevant factors: a. Seriousness of the crime i. In this jurisdiction at the time, first time DD was a non-jailable traffic offense 8. although no exigency is created simply because there is probable cause that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned Brigham city (222)

4. Police got noise complaint at 0300, didnt see anything in front, went around back and saw two kids drinking and heard fight etc and stepped in to break it up 5. Ct said constitutional because a. Reasonable to believe entry needed to render emergency assistance to someone b. Or, to protect someone within the home from imminent serious injury 6. It doesnt matter whether or not the officer believed he needed to protect someone, all that is needed is a reasonable police officer could have had that belief Another type of exigent circumstance: Protective sweeps 4. Cops go into home, have arrest warrant, and find someone right there. As search incident to arrest they can search what is within reach 5. Sometimes the police may be able to conduct a protective sweep 6. It is only a cursory inspection of places where a person might be found if there is reasonable suspicion that the area contains a person who poses a danger to someone on the scene. a. Can work in concert with plain view exception because they are legally there Seizures and arrests Hypo: assume the police have PC to believe a D has committed the crime of receiving stolen property, head to house, see him outside walking dog, arrest him w/o warrant then walk into home and search and find stuff 1. Warrantless entry into the home, constitutional or no? NO 2. Warrantless arrest? 3. Watson (224) a. 4th amendment prohibits warrantless searches and seizures b. Why is a warrantless search unconstitutional but a warrantless arrest is constitutional? c. Longstanding rule at common law that a person can be arrested without a warrant for any felony or for a misdemeanor committed in the officers presence. d. Also practical consideration that telling cops, need arrest warrant unless exigent and force cops to think, then if they make a mistake, any evidence as search incident to arrest would be suppressed. e. Warrantless arrest in public is constitutional. f. While a warrant is not needed, probable cause is still needed. i. There is still a benefit to getting arrest warrant 1. If a magistrate issues warrant and there is a later PC issue, there will be deference given to magistrates decision to issue the warrant. a. Was there a substantial basis for the magistrates conclusion there was probable cause b. There will be no de novo evaluation, just substantial basis. (skipping around) STOP AND FRISK Before searching an individual, the police must have probable cause to believe that person has committed, is committing or will commit a crime? T or F

Probable cause for an arrest; reasonable suspicion for a stop and frisk Arrest = Search Incident to Arrest; Frisk after Stop = Reasonable Suspicion of a weapon. Terry v Ohio (247) 1. For terry frisk to occur, there must be: a. Reasonable suspicion that the person is armed and dangerous i. The search must be limited to what is necessary to discover weapons, or ii. Reasonably designed to discover them b. And reasonably necessary to locate weapons US v Robinson (125) 1. D arrested , officer conducted a pat down. Felt in left breast pocket something 2. I couldnt tell what it was and I couldnt tell the size of it. So he reached into the pocket and pulled out a crumpled cigarette package and wasnt sure what was inside, just that it wasnt cigarettes, and found inside capsules containing heroin. 3. Court upheld as search incident to arrest. 4. Would this be a valid Terry frisk? a. Probably not, no reasonable suspicion that he was armed and dangerous. b. Assuming there was reasonable suspicion he was armed and dangerous, then did the search follow the boundaries of a terry search? i. No, there was no evidence that when he conducted the pat-down he felt anything that reasonably let him believe there was a weapon. 5. Ask the officer, what did you think it was? To make reasonable suspicion The legality of a search will often hinge on the theory invoked in its defense. Sometimes a search will be valid under one but not another. Terry Frisks apply only to weapons. Assume that an officer has reasonable suspicion that someone is armed and dangerous. Starts to do an outer pat-down. Feels something in an outer pocket. Does not think it is a weapon, has reasonable suspicion to believe it is crack. Can he pull that item out of the pocket? 1. Not under terry. 2. If all he has is reasonable suspicion its drugs, he cant go into the pocket. 3. Not at all a. Minnesota v Dickerson (136) b. If feels it is evidence of a crime or contraband, he cannot move it about trying to figure it out c. Often, they ask permission and people say yes Remember you cannot move the evidence, otherwise counts as intrusion Does terry mean officer must always start with outer clothes? 1. Usually but not always. 2. Exception: Adams v Williams a. 2am informant that police officer knew was reliable and said guy in car has gun at his waistband. Cop goes over and asks to open door, guy rolled down window. Officer reached right in and grabbed gun out of waistband.

b. Court said was reasonable in scope. i. Had reliable info ii. Guy did not do what cop asked of him iii. Safety issue Terry v Ohio extended in that cars can be frisked Michigan (p 256) 1. Cops saw car at night in rural area, being driven erratically and fast. Drove off road and landed in ditch. D meets officers in rear of car at drunk. Driver obviously impaired. Cop asked to see registration, D started to walk back and officer observed hunting knife in floor of car. Officer said whoa, patted him down and found nothing, went to car. Armrest was down and could see something under it. Officer lifted it and found open pouch containing marijuana 2. Court said it was a terry frisk, which is allowable if: a. If there is reasonable suspicion to believe the suspect is dangerous, and b. Reasonable suspicion that he might gain immediate access to a weapon, c. Then the officer can search those areas of the passenger compartment where a weapon might be placed or hidden. Hypo: some narcotics agents stationed at Miami airport and felt D fit the drug courier profile. Carry heavy American tourist luggage, young (25-35), casually dressed, appeared pale and nervous, paid for ticket with cash, put only name and destination on luggage tags (incompletely filled out luggage tags). They approached D, identified selves as police officers. Asked to see airline tickets and driver license. Names did not match, when they asked him why, he became more nervous. They did not return ticket and license, asked to accompany them to large storage closet while other officer retrieved luggage. They asked him if he would consent to search, he didnt say anything and provided the key and they found marijuana. In second case, he said did not know combination and gave permission to break lock and they found more drugs. Start to finish of encounter was 15 min 1. At start of encounter, when they asked to see tickets, was that constitutional? a. Yes, there wasnt a seizure. (asking for ID without force would be OK) i. Us v mendenhall (229) ii. There is no seizure unless the police employ physical force or a show of authority that would cause a reasonable person to believe she is not free to leave or otherwise decline the encounter. (stopping a car by cop car) iii. Court would say as a general rule, when cops come up and ask general questions (and even ask to see ID), that is not a seizure. 1. A reasonable person would feel free to leave or decline. 2. Refusal alone does not create reasonable suspicion. iv. However, court has said must look at all factors 1. Look at number of police officers 2. Drawing of a weapon 3. Words used 4. Tone of voice of the officer 5. Physical touching

6. Location of the interchange v. Florida v. Bostick (234) 1. Issue: whether there was a seizure when police boarded a bus and asked passengers for permission to search their luggage. 2. Rule: Not whether a person would feel free to leave but whether they felt free to decline officers request. if a reasonable person would free to terminate the encounter, then he or she has not been seized. The reasonable person test is objective and presupposes an innocent person. vi. US v Drayton (235) 1. Police officer get on bus, 1 in drivers seat and the other 2 ask to search luggage 2. Issue was whether or not D was seized. Court said no. 3. Court said it is not whether they feel free to leave, but whether they would feel free to decline the search. a. Physical force or a show of authority that would cause a reasonable person to believe shes not free to decline the officers request or otherwise end the encounter. vii. Brendlin v. CA (235) 1. When a police makes traffic stop, the driver and passenger of the car are seized in the meaning of the Fourth Amendment. What is a seizure, must be a physical force or show of authority and that a reasonable person would not feel free to decline. Hypo/Facts: Police on patrol saw group of kids huddled around small red car. They ran when they saw cops. One of the kids was arrested with marijuana. Lower court said that D was seized (illegally) when he saw cop running at him and suppressed drug evidence. Issue: whether at time D dropped drugs he was seized within meaning of the fourth (if so drugs will be excluded). 1. Arguments to get marijuana suppressed. a. Flight is reasonable suspicion (Chasing = no Seizure) b. Ca v Hodari (235) i. Ct continues to embellish upon what it means to be a seizure. ii. Must be either a display of physical force or submission to a show of authority in a situation where a reasonable person would not have felt free to decline the officers request or otherwise end the encounter. iii. being within the physical control of iv. Ct. defined seized as being within the physical control of an officer. v. To constitute an arrest, howeverthe quintessential seizure of the person under the 4th amendment the mere grasping or application of physical force

with lawful authority, whether or not it succeeded in subduing the arrestee, is sufficient. vi. Here the officers pursuit was a show of authority enjoining D to halt. Since D did not comply with that injunction he was not seized until he was tackled. The cocaine abandonment was not the fruit of an illegal seizure and is admitted. 2. There was no seizure 3. Even if there was, there was reasonable suspicion for a seizure a. Il v Wardlow (269) b. Facts: D fled on seeing cops in area known for drug trafficking. A search was conducted and a gun was found. D was a felon. c. Rule: Nervous, evasive behavior and location in a high crime area are relevant factors in determining the reasonable suspicion necessary for a Terry stop under the Fourth Amendment. d. Reasoning: while less than p.c. officer still must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity. Totality of circumstances here was enough. e. Concurring opinions said it was important that majority was rejecting notion that flight is necessarily indicative of ongoing criminal activity. Flight can be both guilty and innocent. f. Person saw cops coming and took off, this would be reasonable suspicion (but not per se) if in dangerous neighborhood g. Ct said reasonable suspicion for the seizure 4. Back to hypo, assume there has been a seizure and focus on reasonable suspicion bc the D fled. Rep D, try to distinguish wardlow. a. Wardlow was in high crime area and the flight in high crime neighborhood was relevant b. The fact that suspect in hypo kept running when lights and sirens going. c. The court is not saying that running alone creates reasonable suspicion, it is relevant and look at all circumstances. Hypo: police received anonymous call that driver of green Impala w license # GN645 was traveling west on hwy12 near Ashton and the driver was drunk. Squad car went out, located car and followed it. Didnt notice anything unusual, stopped car and smelled alcohol when window down. Thought driver had slurred speech, did sobriety test and driver failed. As D attorney, try to suppress: 1. Is there a seizure? a. Yes, the stopping of a car does constitute a seizure. i. When a cop stops a car, they can see a lot of what is in the car, whereas if they saw you outside, they would merely see what everyone else does. 2. Is there reasonable suspicion? a. D says no, P says there was bc of Al v White (264) i. In White they received anonymous call that lady would arrive in certain vehicle, certain time and then immediately go to hotel and would have cocaine.

ii. Cops go to apartment, car matching description arrives, woman gets out w case and goes iii. The ct said reasonable suspicion bc caller gave facts about intimate knowledge of person and what would happen in future. iv. The tip alone did not create reasonable suspicion for the stop. 1. If police always get ability to seize without reasonable suspicion, it destroys 4th amendment 2. There MUST be a level of corroboration. b. Distinguish Alabama v White. i. FL v JL (266) 1. Issue: Whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officers stop and frisk of that person. 2. Facts: Anonymous caller told cops young black male standing at a bust stop wearing a plaid shirt had a gun. Cops went to stop and saw male wearing such a shirt. Officer frisked him and found a gun. D moved to suppress. 3. Holding: No. An anonymous tip lacking the indicia of reliability required in White does not justify a stop and risk whenever and however it alleges the illegal possession of a gun. 4. Rule: the reasonableness of official suspicion must be measured by what the officers knew before they conducted the search. 5. Reasoning: all the officers had to go on was an anonymous unaccountable tip. The call contained no predictive information and therefore no means to test tipsters knowledge or credibility. a. No exception for firearms, otherwise anyone could call in with anonymous tips of firearm possession and would allow harassment. Distinction Between Stops and Arrests Terry frisk (search)- there must be reasonable suspicion the suspect is armed and dangerous Terry stop (seizure)- refers to a seizure for which only reasonable suspicion of criminal activity (not armed and dangerous) 1. Reasonable suspicion will only justify a limited search 2. 2 kinds of seizures a. Terry stop b. Seizure for which probable cause is necessary (arrest) i. SCOTUS held that if D is for practical causes arrested, (doesnt matter if he was technically or not), there must be probable cause ii. Dunaway v NY (255) 1. As far as the 4th amendment was concerned, he was arrested. Thus there must be probable cause When D taken to small room he was effectively arrested, probable cause was necessary. (functionally arrested, dont need to say you are under arrest) US v Mendenhall (229)

Took flight from la Was last person off plane Appeared very nervous Didnt claim any luggage Switched airlines a. Combined to make cops think she was drug courier b. Ask for ID and ticket, names dont match, ask why she said AI felt like it c. Identify themselves, she gets nervous, give ticket and ID back and ask her to go to room d. She consents to search of purse and person and they find drugs. i. Was the initial encounter legal? Clearly ii. This was not a seizure, even if there was, there was reasonable suspicion iii. Then question of constitutionality of officers bringing to small room 1. D went voluntarily in spirit of apparent cooperation 2. No problem.4th amendment requirements do not apply if valid consent Difference in Royer and Mendenhall, in Mendenhall, police gave tickets etc back. In Fl v. Royer, when narcotics agents asked to come to room, they had NOT returned airline ticket and drivers license. Defendant 1. Claim there was a seizure 2. Nature of seizure is that it became an arrest for which PC is necessary 3. No probable cause 4. Even assuming the seizure was just a terry stop, was no reasonable suspicion Prosecutor: 1. Claims there was no seizure 2. Nature of seizure was terry stop and need only reasonable suspicion 3. Even assuming it was an arrest, there was PC 4. There was reasonable suspicion for the seizure that was a terry stop US v Place (256) 1. D in airport, arouses suspicion of transporting drugs, consented to search but plane was leaving and so they let him go. Contacted agents on other end and they watched him and they told him they suspected him of carrying drugs, asked to search, he said no. They told him they would keep luggage until warrant obtained. Took luggage to a different airport and drug dog alerted. 2. There were 90 min b/w when police took luggage and when they had probable cause to permit them to hold luggage until get warrant to open. 3. 90 min based only on reasonable suspicion. 4. Ct said luggage is so personal it is like seizing someones person; concluded seizure based on less than PC was unreasonable. As looking at what kind of seizure has occurred, look at length The longer the detention, the more likely it is a seizure. Case mention US v Sharpe (256)

1. 2. 3. 4. 5.

What is a seizure within meaning of 4th amendment? There are 2 kinds: 1. Arrest- can be one even if not an official, announced arrest (FL v Royer) 2. A terry stop. A seizure that occurs for limited investigative purposes for which only reasonable suspicion is necessary. There may be debate between party for what requirement is for that particular type of seizure. An arrest can occur even in a 15 min period On the other hand, (us v place) the detention of D luggage predicated on reasonable suspicion. Detention was for 90 min before there was probable cause. In that case, court said cannot be kept that long with only reasonable suspicion. Us v sharpe (256) 2 cop cars, 2 D cars, cops had to split up bc one of the Ds took off. Focus of court was the 20 min detention. Was it predicated only on reasonable suspicion of drug activity, was this constitutional under 4th amendment? Here, ct said fine. Bc of evasive measures by Ds. Determining whether terry stop or arrest is a fact specific question. Bottom line is there is no minute rule yet. What is Sufficient for Reasonable Suspicion? United States v. Arvizu 2002 1. Issue: can a number of facts, which of themselves are not evidence of any crime, be taken together to create reasonable suspicion to stop a car? 2. Facts: Near u.s. border with Mexico a sensor went off signaling care passage. It went off at time of shift change at border, traffickers take advantage of this. Agent saw minivan (known for drug smuggling use) and kids were in back, knees high up, like feet were resting on something. Driver acted strange and took route to avoid a border checkpoint. He was transporting pot. 3. Ct. Reasoning: we use totality of circumstances testtotality of circumstances here created reasonable suspicion. 4. Holding: There was reasonable suspicion to believe D was engaged in illegal activity. It was reasonable for the cop to infer form observations and registration check as well as his experience on border control to surmise that D was trying to avoid checkpoint. Facts taken together sufficed to form a particularized and objective basis for stop. United States v. Sokolow 1989 1. Issue: Can use of profiles by police be sufficient for reasonable suspicion? Her the court said a drug courier profile in airport was ok for terry stop. 2. Facts: Drug agents stopped Sokolow in Honolulu Airport after his behavior indicated he may be a drug trafficker: he paid $2,100 in cash for airline tickets, he was not traveling under his own name, his original destination was Miami, he appeared nervous during the trip, and he checked none of his luggage. Agents arrested Sokolow and searched his luggage without a warrant via drug dog. They discovered 1,063 grams of cocaine.

3. Holding: totality of circumstances gave probable cause that D was a drug trafficker and met the profile of such. The fact that evidence may be set forth in a profile does not detract from evidentiary significance as seen by trained agent. Exclusionary Rule Assume from here on out constitution has been violated, what will come of that? Will the evidence be excluded bc of the violation of the rights? Origins of exclusionary rule Weeks v. US (296) 1. Ct held when federal officials violated the 4th amendment, the evidence must be excluded. i. Facts: Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. ii. Issue: Did the search and seizure of Weeks' home violate the Fourth Amendment? iii. Rule: To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule." iv. Holding: Marshall needed a warrant and the letters will be suppressed from trial. (No ruling on participation of state law enforcement). Applies in federal prosecution Wolf v Co (298) 1. Does 4th amendment even apply in state cases? Yes, bc it is implicitly part of due process clause of 4th amendment 2. The 4th amendment exclusionary rule doesnt apply in state prosecutions Mapp v Oh (299) 1. SCOTUS has been struggling w 4th amendment exclusionary rule 2. Overruled wolf and said it applied to states. i. Facts: D was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive wanted for a bombing. D demanded a search warrant but cops paid her no heed. Mapps attorney arrived but they wouldnt let him in. ii. Issue: May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding? iii. Rule: Since the 4th has been declared enforceable against the states through the due process clause of the 14th, it is enforceable against them by the same sanction of exclusion as is used against the Federal government. iv. Reasoning: The ignoble shortcut to conviction left open to the state tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. The 4th is no longer revocable on the whim of a police officer who in the name of law enforcement suspends its enjoyment.

Q if evidence obtained by either federal or state officials, in violation of the 4th amendment, must it be excluded? Arguments for the 4th amendment exclusionary rule: 1. If we dont apply it in state prosecutions, federal officials can evade Weeks 2. Deterrence- deter unconstitutional conduct 3. Keeps up the appearance of judicial integrity- purpose is to uphold the law, if allowed, it makes them parties to law breaking. 4. Avoids undermining public trust in the government 5. Civil remedies not effective a. Small chance a criminal is going to prevail b. Damages awarded are typically low c. Most people cant afford litigation d. Tough to induce attorney to represent plaintiff e. Internal discipline is often lax due to corruption 6. Exclusionary rule is a constitutional right Arguments against the 4th amendment exclusionary rule: 1. So called deterrent benefits are exaggerated bc the exclusionary rule only comes up in criminal prosecutions bc many violations of the 4th amendment dont yield evidence 2. Engenders disrespect for the lawperception on part of public that person who is probably guilty is getting free on technicality 3. Dont need this as a deterrent a. Civil remedies 42 USC sect 1983 b. Internal police discipline 4. Attorneys fees can be awarded if the plaintiff is successful under 42 usc sect 1988 b 5. Simply a judicially created remedy. Where did 4th amendment exclusionary rule come from? What is it? It is a constitutional remedy Mapp (300-01) Hudson v. Michigan 2006 Scalia opinion. i. Issue: Whether evidence must be excluded when police violate requirement for knock and announce before executing a warrant on a residence. ii. Holding and rule: Justice Scalia reaffirmed the validity of both the knock-and-announce rule and the "exclusionary rule" for evidence obtained by police in most cases of Fourth Amendment violation. However, the majority held that the exclusionary rule could not be invoked for evidence obtained after a knock-and-announce violation, because the interests violated by the abrupt entry of the police "have nothing to do with the seizure of the evidence." Justice Scalia wrote that the knock-and-announce rule was meant to prevent violence, propertydamage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant.

iii.

1. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible "deterrence benefits," and that alternative measures such as civil suits and internal police discipline could adequately deter violations Dissent: 1. Breyer wrote that private damages actions would be unlikely to be adequate (as was found in Mapp) in deterring unconstitutional police behavior. Additionally the cases reporting knock and announce violations are legion. Like a widespread pattern in need of remedy.

Exclusionary rule Most concern 4th amendment exclusionary rule (but not all) Applies in both state and federal prosecutions The most fundamental question to come before SCOTUS: is this a constitutional right or is this a judicially created remedy? WHO CAN OBJECT TO THE INTRODUCTION OF EVIDENCE AND RAISE THE EXCLUSIONARY RULE? Standing---The ct used to call it standing. Said an individual does not have standing to get evidence suppressed on the grounds that someone elses 4th amendment rights were violated. 1. Ct said no bc of cost-benefit analysis and balanced cost of applying exclusionary rule against the benefit. a. All in all suppressing evidence when the Ds own rights were not violated will not deter 2. Assume D sells marijuana to 3rd party. In box, police observe, box taken to 3rd parties home. Cops search 3rd parties home w/o warrant. a. Can D get marijuana suppressed? No, bc his own 4th amendment rights were not violated. i. Police will obey 4th amendment bc they want to get the 3rd party. 3. There will be exceptions where police really are looking at the 3rd person. Rakas v IL (304) 1. Ds were passengers in a truck, police called about robbery and believed was getaway car. Pulled them over and Ds and 2 others ordered to get out of car. Police searched the car and found the shotgun shells in a locked glove box and the shotgun was found under the front seat 2. Police arrest 2 Ds. Ds did not claim they owned car or the rifle or shells. 3. 2 arguments for suppression: a. We were targets of the search. Ct said no dice due to cost-benefit analysis b. Legitimately on the premises that were illegally searched. i. Jones v US there, D was legitimately on the premise. (had key and stay overnight) 4. Ct said no to target theory 5. Ct said the legitimately on the premises test was not tethered to 4th amendment and test was improperly applied to Jones.

a. Jones was correctly decided, just applied the wrong test. 6. In order for D to have prerogative, there must be intrusion on area in which he had expectation of privacy 7. New test for standing is whether there was an incursion into an area in which they had a legitimate/reasonable expectation of privacy. 8. ? whether D had a reasonable expectation of privacy intruded upon? a. Answer: no. the two places searched gave PASSENGERS no reasonable expectation of privacy. Hypo: assume police officer recognizes the D was the driver of a car, has a string of narcotics violations. The car owner is Rick Witt and he loaned car to Sarah Witt. She went to pick up D and let D drive. Police officer stops car and then conducts search of car. Finds marijuana in glove box. D wants marijuana suppressed. P will argue D has no right and will site Rakas. You represent D, distinguish this from Rakas. 1. It was an illegal stop of the car because he needs reasonable suspicion of criminal activity or consent. 2. Just because someone did something bad in the past does not create reasonable suspicion he is doing something wrong now. 3. Ask whats the 4th amendment activity here? a. First we have a illegal stop/seizure, then we have an illegal search. b. Does he have a right to contest the seizure, then evaluate if he had the right to search. i. In this case the seizure was illegal and the marijuana was the fruit of the illegal seizure. 4. In rakas, the Ds did not contest the legality of the stop of the car. 5. it wouldnt matter if the D was the passenger because the person was illegally seized. Modify the hypo: Assume the stop of the car was legal. Assume officer had reasonable suspicion D was driving while drunk. Found nothing to corroborate and there is no arrest of the D. Nonetheless, the officer searches the car (illegal). Claims valid under automobile but is not because no PC. If the stop was legal, can the D get the marijuana suppressed? 1. This is different from Rakas bc there D was passenger. In this, he is driver and thus has control over it. Because of that dominion he has a legitimate expectation 2. No shoot down: very fleeting, no evidence he has had a close connection w the car. a. This is effectively rakas and SCOTUS said when in passenger seat, had no legitimate expectation of privacy in glove box. Unreasonable to say that moving over a seat gives him the right to get it suppressed. Ownership and relationship to the owner might be more important. Change hypo: legal stop of the car bc of BF DD, does Sarah have right to suppression? Did she have a reasonable expectation of privacy impinged upon? 1. Her connection with the property owner is important (her brother).

The question of whether someone has a legitimate expectation of privacy in the place that is searched will depend on an array of factors. Minnesota v Carter (311) 1. Officer told by someone they had seen cocaine in apartment. Officer then went to apartment and looked through window/blinds and saw people putting white powder in bag. 2 people left apartment, officer saw them come back and found cocaine and then went back and searched apartment and found more. Uses these observations and the tip to get the warrant. 2. Do the 2 Ds have the right to get the evidence suppressed? a. Limited time they had been on the premises. Had been there 2-2.5 hrs. b. Lack of connection between D and the householder c. There for business or commercial transaction (diminished expectation of privacy) 3. Ds here had no expectation of privacy in that apartment. Factors to examine to determine if there is legitimate expectation of privacy 1. Whether or not the D owned the property that was searched 2. Possession of property a. Usually these 2 give right to exclude. 3. Legitimately on the premises is relevant (just not conclusive) 4. Length of time he/she is on the premises or has connection with the property that is searched. 5. What the property is being used or.commercial purposes 6. Any relationship between owner of property and the D 7. Whether or not there has been prior access to the property Rollins v. Ky D saw cops coming up to house and asked woman if he could stuff his drugs into her purse. She said yes and eventually the police searched that purse. D acknowledged drugs were his. He argued search of purse was illegal. Court said no, not his property, only knew her a few days, never had access to the purse before that time, didnt have the right to exclude others from the purse. The precipitous nature of the transaction (they just stuffed it in there). 1. Look and see if there has been an arguably illegal seizure of the D to which the evidence can be connected 2. Look to see if D had legitimate expectation of privacy in the place that was searched. 3. Even if he didnt, look to see if he owned or possessed the item that was seized. a. If it is their own property, can contest the legality of the seizure of their own property b. The admission of ownership of an illegal item cannot be used in the case in chief. It is an open question though if the prosecution can use it as impeachment material. Brandlin v. California 2007 (Passenger rights to privacy) (314) Issue: A driver of a car is seized under the 4th during a traffic stop, but is a passenger also seized?

Facts: Cop noticed tags were expired and pulled driver over. Passenger had a warrant out for arrest and there were drugs in the car. Holding and rule: the Court held that when a vehicle is stopped at a traffic stop, the passenger as well as the driver is seized within the meaning of the Fourth Amendment. The justices said, "We resolve this question by asking whether a reasonable person in Brendlin's position when the car stopped would have believed himself free to 'terminate the encounter' between the police and himself." The Court held that Brendlin would have reasonably believed himself to be intentionally detained and subject to the authority of the police. Thus, he was justified in asserting his Fourth Amendment protection against unreasonable seizure. The Court noted that its ruling would not extend to more incidental restrictions on freedom of movement, such as when motorists are forced to slow down or stop because other vehicles are being detained. Exceptions to the Exclusionary Rule If the evidence was obtained through legal means, it will be admitted. Independent origin rule1. Ex: Jimmie Carter case. Told police he threw the murder weapon in the IL river. Assume confession is illegal and found to be in violation of 6th amendment. At same time, fisherman in river finds weapon and turns it in to police. Jimmie cannot argue for suppression bc weapon found through legal means. 2. If prosecutor arguing obtained through legal means, you have burden of proof it was found through legal means 3. Burden of proof typically is preponderance of the evidence. Murray v US (318) 1. In this case, there was a warrantless entry into warehouse and there in plain view, officer sees bales containing marijuana. Then get search warrant and do no mention they saw marijuana, just all the other evidence. Search warrant issued. 2. Court said okay. The independent doctrine does apply if the evidence was seen during an unlawful search but is later obtained during a lawful search, as long as the evidence in question was not the basis for probable cause to issue the warrant. 3. Does the courts decision in Murray take a chunk out of the 4th amendment in the exclusionary rule as the dissent says? a. As prosecutor, to get evidence admitted must prove 2 things: i. Illegally obtained evidence didnt affect the police officers decision to get the warrant. AND ii. The illegally obtained evidence didnt affect the magistrates opinion to issue the warrant. 4. Ct is saying they are confident police will still be deterred from violating 4th amendment because first issue to prove is difficult to prove. Inevitable discovery:

Closely related to independent source. If police can prove that they would have inevitably would have discovered the evidence, even without violation of 4th , the exclusionary rule does not apply and evidence is admissible. Nix v Williams (323) 1. ct held when govt can establish by a preponderance of the evidence that illegally obtained evidence would have inevitably been obtained by legal means, the evidence is admissible---inevitable discovery exception rule 2. Cts rationale is that we dont want the application of the exclusionary rule to put the govt in a worse situation than had it complied with the law. a. Purpose is not to punish the government. 3. By recognizing this exception, will this provide an incentive for the police to act unconstitutionally? Ct felt no. 4. All the justices agreed there should be inevitable discovery exception. Where the fight was the standard of proof. a. Dissenters felt it should be clear and convincing evidence. b. Majority believed it should be preponderance of the evidence. 5. Note the facts. At the time of the Christian burial speech, there was a plan already in place and being implemented to march across the state to find the body. a. There was an ongoing line of investigation that we know is more likely than not would have wielded that body. Inadequate Causal Connectionattenuation of the Taint. Fruit of the Poisonous tree doctrine When secondary evidence is acquired Due process violation yields a confession, confession is suppressed 2 exceptions to doctrine: 1. Inevitable discovery exception: when govt proves by preponde3rance of the evidence that it would have ultimately been obtained by legal means 2. Attenuation doctrine: the test is set forth in brown v il (330) a. Whether evidence was obtained by exploiting the illegality or has the taint of the illegality been sufficiently dissipated to allow it. b. Can be the cause in fact and not be the proximate cause of the evidence acquisition.do NOT quote this Assume that work in prosecutors office and Chief Prosecutor comes w up to you and says D was illegally arrested and got incriminating statement afterwards, wants to know if allowed or will be suppressed. Attenuation analysis: 1. Was the statement voluntary? (this is threshold test, if involuntary, no need to go further) a. If it was involuntary, it will be suppressed for due process and fruit of illegal arrest 2. Was he read Miranda before the statement? a. might argue if poisonous tree is illegal arrest but then D is told Miranda, and the D gives a statement, he chooses to speak, statement will still not automatically be brought in

b. Miranda alone does not cure it automatically. c. Brown v IL held that the but-for test is not per se. d. Can have the illegal arrest followed by a statement and yet the statement may not be considered fruit of the illegal arrest e. Practical reasons, dont want cops to illegally arrest, give Miranda and then get the confession i. If the ct had concluded Miranda by itself would cure the taint of the illegal arrest, it would dramatically weaken the 4th amendment f. Ct took into account the purpose of the exclusionary rule g. If Miranda was given, is pro-prosecution fact. 3. Look at and determine a. the purpose of the illegal conduct i. if the purpose was to uncover evidence of a crime, it is less likely to have attenuation b. And the flagrancy of the illegal conduct. i. How bad was it? Was the officers belief there was PC unbelievable ii. The more flagrant, the more likely the evidence will be suppressed for deterrence 4. The lapse of time between the 4th amendment violation and the obtaining of the statement a. The shorter the lapse of time, the more likely to be suppressed, less likely there is attenuation 5. Presence of intervening circumstances a. More likely to be attenuation b. Consultation with counsel makes much more likely there is attenuation c. Appearing before a judge between time of illegal arrest and procuring the statement d. Visitor may be probative 6. Whether at the time D gave the statement, he was in custody or not a. If not in custody, it is more likely there is attenuation and statement would likely be admitted. b. Wong Sun (332) Arrested and released. In Brown, the confession was thrown out. Ct concluded there was not attenuation. Both the 1st and second statements were suppressed Brown v. Illinois 1975 (330) 1. Issue: whether statements made after an arrest without probable cause and without warrant should be admitted or should have been excluded, in petitioners subsequent trial for murder in state court.aught statements be excluded as the fruit of the illegal arrest or were they admissible because the giving of Miranda warnings attenuated the taint of the arrest. 2. Facts: D was arrested by two cops who had broken into his apartment and searched it without warrant. Then when D was arriving at the apartment they stopped/arrested him by pointing guns at him. D was arrested for murder, without probable cause. He was taken to the station and Mirandize twice. He confessed first after 90 minutes, and again seven hours later.

3. Rule: Miranda warnings by themselves, *do not+ assure that . . . statements . . . [are] of sufficient free will as to purge the primary taint of . . . unlawful arrest. 4. Wong rule : Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 5. Holding: The first statement came less than two hours after his illegal arrest, with no intervening event of significance whatsoever. The second statement was clearly the result and fruit of the first statement. The arrest appear*ed to have+ have been calculated to cause surprise, fright, and confusion. This illegal arrest had the quality of purposefulness. The impropriety of the arrest was obvious. The arrest was in design and execution, investigatory.

If in analysis, conclude statement is involuntary, continue the analysis Typically find some cases point one way and some will point the other. Courts have stated this is very fact specific. This is the attenuation analysis set forth in brown NY v Harris (336) 1. Also an illegal arrest. There was no warrant and in Ds home (at home, so warrant needed) 2. There was PC, there was no arrest warrant. 3. Police hauled D away to station and he made inculpatory statement there 4. Ct said when the reason an arrest is illegal is no warrant, statements secured outside the home come in. a. There IS PC, statements obtained outside the home are admissible and not the fruit of the illegal arrest b. By contrast, evidence found within the home will be suppressed. Must find out if arrest was illegal and where it was obtained. Construct arguments in Defense of courts holding and then some the other way Defend SCOTUS in Harris 1. The actual seizing of that persons body was legal because there was probable cause 2. Ct said that bc there is PC, his body can be seized legally. The purpose of the warrant requirement is to preserve the privacy in the home. Once the cops leave the home, the privacy stops, so anything outside the home can come in. a. What they see and obtain in the house (even if in plain view) it is suppressed. Rebut SCOTUS in Harris 1. Shock and surprise does not stop at the threshold 2. It has reverberating effects even hrs later. 3. Still go through attenuation analysis If illegal arrest: 1. Why was arrest illegal

a. If bc no PC, apply brown b. If bc no warrant, statement outside the house is good, anything inside the home is suppressed. The Good Faith Exception to the Exclusionary Rule US v Leon p 336 There was a search warrant issued, a lot of inculpatory evidence collected. The court ruled that the evidence was admissible despite no PC. The warrant was issued by a magistrate and the police acted in good faith. The good faith exception- looks at what a reasonable reliance on the search warrant When the Ct examines and determines the scope of the exclusionary rule, it examines the cost of applying vs the benefit Costs of having exclusionary rule: 1. Suppression of reliable evidence 2. Guilty people going free 3. Engenders disrespect for the law Benefits: 1. Little deterrent impact on the officers when officers acted reasonably Benefits to have exclusionary rule: 2. Induce police officers to be more careful when preparing warrant applications and reviewing warrants 3. Will have a long term institutional deterrent impact a. To know how to make sure the warrants are actually valid b. Ma v Sheppards (353): Police used a standard form that authorized search for drugs instead of murder evidence. Judge made scratches and said he would fix it and it was fine but ultimately, it was not corrected. c. Police should take the time to make sure it is correct 4. Fosters respect for the legal systempublic sees no double standard 5. Deter prosecutors from 4th amendment violations a. Provide incentive to be careful when scrutinizing and encourage them to be careful 6. Deter judges from issuing invalid warrants a. Suppression of the evidence will make judges look more closely 7. Discourage magistrate shopping 8. Avoid disrespect of the law 9. Promote Judicial integrity 10. Time expended determining whether officer acted in good faith 1. Exclusionary rules purpose is designed to deter police officers from violating the 4th amendment a. Response is that 4th amendment is not directed at police officers but at the government in general

2. There is no pattern of lawlessness on the part of judges that would justify how the exclusionary rule would impact a. Need to have checks and balances in system, including on judges b. Sometimes judges are lawless c. Judges can be negligent and/or grossly careless 3. Even if we were to focus on judges, suppression of evidence will not have a significant deterrent impact on judges a. Judges are neutral, the police officers are adversarial b. Some judges are biased c. Embarrassment of having evidence suppressed because of ones errors d. Suppression of evidence will cause judges to be more careful because it can impact their ability to be re-elected. Assume we have a warrant application that says :I officer smith, have received reliable information from a credible source and do believe that heroin is being stored at the Ds home at .. The officer did believe the warrant application established PC and warrant was issued based on that. Will the evidence be suppressed? 1. Focus on the later part of the argument. 2. Multiple exceptions to good faith 3. One is when the officers belief as to the existence of PC is entirely unreasonable. 4. The hypo is considered a bare bones affidavit and there is nothing there. a. Need some indication the informant is truthful and that the info is reliable. 5. There is a good faith exception and despite it, there are examples to why evidence should be excluded and the good faith exception would not apply. a. When warrant is so facially deficient in its lack of specificity, the officer could not reasonably have believed it was valid. b. When magistrate has wholly abandoned his/her judicial role c. Franks v Delaware situation (355) i. When will the submission of false info to a magistrate lead to the invalidation of a warrant and suppression of evidence? ii. Evidence will be suppressed only if there was false information provided to the judge that was made with knowledge of falsity or reckless disregard of the falsity; the false information must have been necessary for the PC finding. 1. Assume warrant application mentions 5 facts. a. Fact 1 is false and officer knows it is false b. The other stuff may still be okay. d. If we have a warrant and there is unreasonable execution in the sense that police are searching places they have no authority to search or seizing unauthorized items, the evidence will be suppressed Hypo: assume police have arrest warrant for someone driving suspended license, get warrant and go to house and walk right in. They see cocaine. D moves to suppress bc of violation of knock and announce Hudson v US (292 and 353).

1. Does not apply when only 4th amendment violation is knock and announce procedures. 2. Look back at opinion and ignore knock and announce, judges clearly want to get rid of knock and announce rule Herring v US (sup 45) 1. Sending message that if evidence obtained in violation of 4th amendment, it should be suppressed 2. Holding: the exclusionary rule does not apply a. Exclusionary rule applies to cops when violation of 4th amendment is: deliberate, reckless, grossly negligent or with systemic negligence 3. The issue was negligence but will not benefit the 4th amendment.cop though warrant was valid but there was clerical error. If representing a D, and think evidence should be suppressed, know rules for timing of filing of the motion. If miss the deadline, may miss rules for effectiveness of counsel. As a general rule, get evidence suppressed ASAP bc may not be enough evidence to support evidence of guilt and case will disappear. LB case: anonymous tip about person driving down road, description of car and DD. Cop located car, saw nothing unusual but still stopped the car and procured evidence. Davis v. US Officer relied on prior SC case. When arrest an occupant, can search the container. Belton modified it. In this case, although violated 4th amdt, at the time, the police reasonable believed they were acting in good faith If deliberate violation, it would be a different story. If Miranda is just a judicial remedy, cannot tell the states to comply. Motion to suppress Timing File Pre-trial motion to suppress Sometime it is prudent to wait for just before the trial. If made too early, at the suppression hearing, police could recall something that was detrimental to the case. Value of pretrial motions: 1. Can give much needed negotiating leverage if the case is strong enough If dont get suppressed and go to trial and appeal, and there was an error about the evidence. It does not necessarily mean conviction over turned Harmless error doctrine- it is the governments burden to prove beyond a reasonable doubt that the error was harmless.

Look to see whether the illegal evidence contributed to the verdict. Other approach is overwhelming evidence test- focus is on the other legal evidence presented in the case. Govt must prove beyond a reasonable doubt that there was overwhelming legal evidence of the Ds guilt. Few constitutional violations that cause automatic overturn: 1. Harmless error rule applied to 4th, 6th and Miranda violations, involuntary confessions 2. But automatic overturns: a. If D had constitutional right to be defended at trial and was denied him, conviction overturned