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• Legislative Designation • To determine what is criminal it will be the label that the legislature chooses so give a sanction • If the legislature wants to call seomthing criminal, it wants the public to treat an offense as criminal Civil Penalty: US v. L.O. Ward • • Usually a D will argue that his alleged violation is criminal, as he is seeking to take advent of certain constitutional rights that are only available in criminal prosecutions. • A decision that the D faces a civil sanction means that the claim of special procedural right will be denied • Ex. US v. Ward - Sc held that penalty imposed on discharging hazardous materials into navigable waters is a civil penalty therefore, there is no violation of 5A rights. • If the penalty is imposed, then it the criminal rights can't apply • Commitment of Sex Offenders: Allen v. Illinois & Kansas v. Hendricks • Allen v. IL - held that commitment proceedings under Sexually Dangerous Persons Act were not criminal and the 5A self-incrimination clues was not applicable • The statute was civil and treatment-oriented was crucial, although kept in max security institution. • Kansas v. Hendricks - can't simply make it criminal for a long punishment but simply protected a person form the public so the person can't apply the rights of criminal trials. • Registration of Sex Offenders - Civil Regulation or Criminal Punishment? Smith v. Doe • Smith v. Doe - held AL's version of the Megan's law (registration of sex offenders). An imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective • Therefore a civil scheme designed to protect the public from harm If a law's purpose is civil rather than punitive, it is not an ex post facto law unless its effect is so • clearly punitive as to negate the legislature's intention. • Distinguishing Civl and Criminal COntempt Proceedings: UMWA v. Bagwell • Fines imposed for contempt can be civil or criminal, depending on the purpose of the fine. A fine primarily intended to coerce future conduct is civil, while a fine intended primarily to punish past conduct is criminal. • If a criminal fine is serious, the right to jury trial attaches. The Nature of the Procedural System and Sources of Procedural Rules • Incorporation • Duncan v. Louisiana • Majority position has been one of selective incorporation of rights from the Bill of Rights being guaranteed. • The court held proclaimed that those portions of the Bills of Rights fundamental to our concept of ordered liberty have been so incorporated. • Recap on Residual Protection Provided by the Due Process Clause • Principles from the morass of opinions • A citizen can't rely on a right to due process if a specific BOR guarantee would rpvoide the same constitutional protection • Where a specific BOR protection has traditionally regulated an area of criminal investigation, and yet provides no protection in a particular case, it is very unlikely that a citizen can rely upon a more general due process guarantee • Independent protection under the Due Process Clause remains viable where governmental activity, as in GOod, has some purpose other than enforcement of the criminal law • Independent protection under the Due Process Clause remains viable even in criminal cases where no specific BOR guarantee has traditionally applied. • Retroactivity • Impact of New Decisions
• Important question is whether the legal rule should be applied to gov conduct occurring before the date of the decision • A rule the Court has followed to give the benefit of the new rule to the litigant who establishes it, even though that establishes retroactive application for two reasons • Provide litigants with incentives to improve past decisions of the Court b/c few litigants would ask the Court to establish a new rule that they could not use • To assure that there is concrete case or controversy before the Court • Current SC Approach to Retroactivity • Harlan approach: new constitutional rules must be applied to all cases pending in direct review when the rules are handed down. (Direct review when it is still on appeal from a judgment at conviction, which includes all appellate activity up to and including the SC's denial of a writ of certiorari) • The new rule should not applied in collateral attack (habeas corpus proceedings) • SC interpreting or delineating constitutional rights will be applied retroactively to all convicted affected by the interpretation that are not yet final or that are pending on direct review. • The rule is designed to ensure that similarly situated D's are treated in the same way and to prevent judical review from • Teague v. Lane • Restricted availability of the writ by significantly narrowing the authority of the fed courts to announce new substantive constitutional rules in habeas cases, through a revision of the rules governing retroactivity. • The habeas corpus proceeding is a collateral attack on a conviction. It's not a direct appeal of the criminal conviction. The habeas corpus proceeding is a separate civil proceeding in which the D challenges the lawfulness of her detention. The person having custody of the D, often the prison warden, is named as respondent. • Central to the Ex-Post Factor Clauses is a concern for the lack of fair notice. These provisions seek to restrain the gov from increasing punishment beyond what was prescribed when an act was committed. • Two critical elements must be present: • The law must be retrospective • The law must disadvantage the offender affected by it • A law violated the Ex-Post Facto Clauses only if it: • Punishes as a crime an act previously committed, which was innocent when committed • Makes more burdensome the punishment for a crime after its commission; or • Deprives a D of a defense available under law in effect when the act was committed • What is a New Rule? • New rules are generally inapplicable to those who convictions have been finalized including the petitioner who initially brings the claim for a new rule on collateral review. • Finalization is defined as the date on which the SC has denied certiorari of the D's direct appeal, or when the time to petition for certiorari has expired. • When a decision merely applies settled precedent it is not a new rule at all and is thus completely retroactive • New rule is when reasonable minds could have differed about eh result of the decision before it was rendered. Refusal to Promulgate a New Rule as a Decision on the Merits • • SC has given indication that a refusal to render what would be a new rule on habeas is similar to a rejection of the proposed rule on the merits • The Teague Rule and Statutory Limitations on Habeas Corpus Relief • AEDPA limits Fed habeas review over state-court determinations of constitutional law, but the rule is now phrased as merit-based rather than retroactivity-based.
• Fed court can't grant relief unless the state court decision is contrary to or involved an unreasonable application of clearly established Fed law, as determined by the SC. • Retroactive Application Against the D? • Court has held that law msut be applied retroactively against petitioners on habeas review even when there are detrimental changes in the law.
Searches & Seizures: Basics of 4A
• 1. Introduction to the 4A • A. The Problem of Gathering Evidence • "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by aOh or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." • B. The Basics of the 4A • "The People" as a Limiting Term: US v. Verdugo-Urquidez • US v. Verdugo - Mexican citizen and resident apprehended by Mexican police and transported to US for trial on drug charges. • US officials conducted warrantless searches of the D's residences in Mexico • SC held that 4A does not apply to search of property that is owned by a non-resident alien and located in a foreign country. • People refers only to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered a part of that community. • History could not fairly be read to limit government action against aliens taken outside of the US Searches Against Illegal Aliens in the US? • • Illegal alien living in the SU would have a connection wit this country required to be one of the people protected by the 4A. • The Reasonableness Clause and the Warrant Clause • Court has stated that searches and seizures are presumed to be unreasonable unless carried out pursuant to a warrant. • When an exception to the warrant requirement is applicable, only the reasonableness requirement must be satisfied. • Probable Cause • Probable cause is used to define the minimum showing necessary to support a warrant application; it is not used to demarcate reasonableness generally in search and seizure situations. II. Threshold Requirements For 4A Protections: What is a "Search"? What is a "Seizure"? • If the gov activity is neither a search nor a seizure, it is not regulated by the 4A and therefore the activity does not have to be reasonable. • A. The Reasonable Expectation Test • Court established a general test for determining whether gov investigative activity rises to a level of a search. • Katz v. US • FBI agents placed an electronic listening and recording devise to the outside of the public telephone booth from which Katz had placed calls. Based on the information obtained from his phone calls, Katz was charged with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. At trial he sought to have the conversations omitted, claiming it was a violation of the Fourth Amendment. Despite his objections the conversations were admitted and Katz was convicted. • Justice Powell, who wrote the majority opinion first stated that the Fourth Amendment protects people, not places, and that what a person knowingly exposes to the public, is not
• 4A protects people. and so searches of items out to the public are not within the scope of 4A protection. in plain view. unlike Olmstead. behind in rent for 6 weeks. based on his experience and knowledge. However. Lastly. • B.4A protects two different interests: interest in retaining possession of property and interest in maintaining personal privacy.subject to Fourth Amendment protection. • Katz as a Two-Pronged Test • Gov conduct must offend the citizen's subjective manifestation of a privacy interest • The privacy interests invaded must be one that society is prepared to accept as reasonable or legitimate. Interests Protected by the 4A after Katz • Court has held there is no legitimate privacy interest in illegal activity • Ex. held a moving sale • Abandonment is found when a person denied ownership of a container in the fact of police inquiries. so police detention and investigation of abandoned property does not trigger 4A • Abandonment need not be explicit. Applications of the Katz Principle: • 1. . Furthermore. • Ex. SC has held that a search falls within the protections of the 4A when gov action intrudes into an area where a person has a reasonable and justification expectation of privacy. the D made no attempt to cover the windows. the government argued that they had probable cause to believe that Katz’s conversations would reveal illegal wrongdoings. and therefore did not sufficiently manifest a subjective interest in privacy. a police inspection will not constitute a search. not places. Subjective Manifestation • Individuals must take affirmative steps to protect their privacy interests. Held that no search occurred when police electronically eavesdropped on a twoparty conversation with the consent of one of the parties. • Ex. or claimed mail. a tied-off. it would have been granted. The majority rejected this argument as having no constitutional significance. • Abandonment of property is inconsistent with the retention of any subjective piracy or possessory interests. contained illegal drugs. The majority held that if only the government had sought a warrant from a magistrate based upon that argument alone. However. Seizures threatens the formers. • There can be no reasonable and justifiable expectation of privacy in things held out to the public. When a person has not paid for post office box. No privacy interest in possession of contraband • Katz not applicable b/c gov was not certain that his activity was illegal until officials listened on the conversations • Seizures and Searches Implicate Different Interests • Seizure may occur without a search. • Ex. in which a search and seizure only pertains to tangible evidence and not conversations. a search the latter • Certain knowledge that incriminating evidence is involved is not necessary. due to failure to satisfy the subjective manifestation. Evidence was admissible where an officer saw. The majority rejected the Government’s argument. Katz sought to preserve information. Ex.opaque balloon which he suspected. • C. otherwise. his conversations were not intended to be heard by the public. by going into the phone booth and shutting the door. the government argued that there was no physical intrusion. While he might have been visible to the public. and a search may occur without a seizure • Texas v. the fact that the agents acted without restraint clearly violated the Fourth Amendment. so seizure is allowed • Ex. Brown . No search where officer used a step ladder to peer into the interior of a plane. When police entered previously lived apt and not a search b/c D had abounded the apt. which was based on the precedent set forth in Olmstead.
If the person turns out be a popo informer. with windows which the room was visible. the D may not object to the transmitting or recording as being a warrantless search in violation of the 4A. • There is no search if the popo obtain info that members of the public could obtain. • The court has stated that it will consider four factors: • Proximity of the home to the area claimed to be cartilage • Whether the area is included in an enclosure that surrounds the home • The nature of the uses to which the area is put • The steps taken by the resident o protect the area from observation • The question is ultimately so intimately tied to the home that it should warrant the 4A. • Banks were parties to any transactions of the depositors. • D assumes the risk that the person with whom he is speaking is unreliable will consent to the gov monitoring their conversation. Barn not within the curtilage b/c it was 60 yds from the home and 50 yds outside the fence surrounding the home. • Ex. Popo discovering contraband placed in compartment of a bin and when popo asked for the owner to claim it and no one did. • Plans growing in an open field maybe searched • Garbage left for collection outside the curtilage may be searched. and it was protected only be low fences designed to corral livestock rather than prevent viewing. • Ex. it was used to manufacture drugs rather than to cary on intimate activities of the home. • Even if property is viewed within the curtilage. • Authorized the Secretary of the Treasury to require financial institutions to file reports on certain paymaster. • Defining Curtilage: US v. The statements are admissible in a subsequence trial for endeavoring to bribe jurors. The Court found that b/c the depositor made the records accessible to the bank. Financial Records • Banks are required by Bank Secrecy Act to maintain records of their client's identities. • Ex. Open Fields • Areas outside the curtilage (dwelling house and nearby outbuildings) are held out to the public and are subject to police search w/o violating the 4A. • Ex. there was no reasonable expectation that they would be free from gov surveillance. • A. Consensual Electronic Surveillance • D may not argue that his 4A righs have been violated if he did not attempt to keep his communications private. • B. Dunn • Not all outbuildings are within the cartilage. • Fly-Overs . a visual inspection of that property from outside the curtilage does not constitute a search. 4A was not implicated by a subpoena issued to a bank to obtain a depositor's records compiled by the bank. planning to bribe jurors.• Ex.police may observe from air as long as they are in airspace where the general public is legitimately allowed to fly. and frequently accessed by hospital employees. this is abandonment of privacy interest in the bag • 2. A wired gov informer hears Ds on the even of trial. quasi-public at a public hospital. Hidden video camera content showed that a person acted in weirdly when receiving packages in the mailroom that contained drugs. The court held that the mailroom was large. Access by Members of the Public • SC has held in a series of cases that if an aspect of a person's life is subject to scrutiny by other members of society. • 3. who is wired for sound or taping. . then that person has no legitimate expectant in denying equivalent access to police. • The info would be made available to other agencies of the gov.
• E. we inquire whether the individual’s expectation of privacy is ‘one that society is prepared to recognize as . on the other hand. Public Areas • Held that a homeless person had a reasonable expectation of privacy in contents of a duffel bag and cardboard box kept on public property • Homeless persons don't have reasonable expectation or privacy in belongings stored on private prop w/o landowner's permission • No search where officers peer into a closed bathroom stall in airport and seeing the D trying to flush drugs down the toilet as privacy expectation not expected b/c design of stall allowed the officer to make observations without placing himself in any position that would be unexpected by an occupant of the stall. we ask whether the individual. it is a search. Bond admitted that the bag was his and agreed to allow Agent Cantu to open it. In the course of this he squeezed the soft luggage which passengers had placed in the overhead storage space about the seats. As Agent Cantu inspected the luggage in the compartment above petitioner’s seat. no such approval is mandated. by his conduct. he squeezed a green canvas bag and noticed that it contained a “brick-like” object. • Similarly. Arkansas. Respondents exposed their garbage to the public sufficiently to defeat a claim of 4A protections • Even if person places garbage bags in a trash can inside his fenced-in background. Trash • Officer's inspection of the trash was not a search and therefore was permissible without a warrant or probable cause. Here. • D. still not a search. Pen Registers • Pen registers record the numbers dialed from a particular telephone. that is. Electronic Pagers • No reasonable expectation in the number dialed on a telephone • There is no reasonable expectation of privacy when D transmitted his number to the pager. • F. has exhibited an actual expectation of privacy. whether he has shown that ‘he [sought] to preserve [something] as private. Manipulation of Bags in Public Transit • Bond v. The court held that this case is different because Ciraolo and Riley involved only visual. Border Patrol Agent Cesar Cantu boarded the bus to check the immigration status of its passengers. • H. US • Steven Dewayne Bond was a passenger on a Greyhound bus that left California bound for Little Rock. The 4A does not require prior judicial approval for installation and use of pen registers. Upon opening the bag. When an officer activates a pager. Furthermore.• C. The government. Agent Cantu discovered a “brick” of methamphetamine. observation. police must obtain a court order finding pen register info to be relevant to an ongoing investigation before using a pen register. as it was required to do. the petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second. D had in making the call disclosed info to another member of the public and therefore assumed the risk that his message would be received by whomever happened to be in possession of the pager at the time. Texas. • Contrast: Person in possession of a pager has a legitimate privacy interest in the numbers stored int he pager's memory. he writes “Our Fourth Amendment Analysis embraces two questions: First. The bus stopped. Title 3 applies only when the contents of electronic communications are intercepted • By statute. petitioner lost a reasonable expectation that his bag would not be physically manipulated and relied on the decisions of Ciraolo and Riley. b/c the trash b/c member of public could still have reached into trash can. argued that by exposing his bag to the public. • A traveler’s personal luggage is clearly an ‘effect’ protected by the Fourth Amendment”. as opposed to tactile. at the permanent Boarder Patrol checkpoint in Sierra Blanca.
The test affected possessory interest by the A. • If a dog positively alerts. • A. a bus passenger clearly expects that his bag may be handled. officers can't open the luggage immediately • Opening of the luggage would be a search since it would uncover legitimate private activity • Dogs are fallible. • Dog Sniff of a Car During Routine Traffic Stop: Illinois v. • Urine testing is a search. • Dog Problems • A trained dog alerted to drug positive alerts to luggage. • A. found to be reasonable under the 4A b/c only a minimal amount of the powder was destroyed and officer had clear indication that the powder was some kind of contraband before he tested it. as a matter of course. Investigation That Can Only Reveal Illegal Activity • There is no expectation of privacy in illegal activity. Canine Sniffs • A canine sniff of closed luggage for drugs is not a search. use of prescription drugs • 5. feel the bag in an exploratory manner”. Chemical Testing for Drugs • Upholds testing warrantless chemical field-testing of a powder that a Fed agent obtained from a package opened by a Fed-Ex employees • Field test not a search and it is a seizure b/c the powder sample that is tested is destroyed in the process. US . • 4. this does not constitute a search as it was a natural occurrence and his conduct could not be attributed to the gov unless there was some police misconduct involved • Dog Sniffs of People and Places • Dog sniff of a person is equivalent to Terry frisk if the dog makes contact with the person • Cannine sniff of a person 4 feet away does not constitute a search • Use of marijuana-sniffing dog outsie an apt was a search b/c the greater expectation in a home.reasonable’. at least where the tech in question is not in general public use. this constituted legally obtained info that can be brought to a magistrate in attempt to obtain a warrant. However. • Drug testing of urine samples could uncover innocent secret info such as pregnancy. which implicates the 4A prohibition against unreasonable seizures. When a bus passenger places a bag in an overhead bin. • If the D's luggage was detained or took a while to get the dog. . the sniff was a greater intrusion than a dog sniff of luggage. obtaining by sense enhancing tech any info regarding the interior of a home that could not otherwise have been obtained w/o physical intrusion constitutes a search. Use of Technology to Enhance inspection. then the drugs found are illegally obtained • The detention was exercise of dominion and control over the luggage. Thermal Detection Devices • Kyllo v. • Use of thermal imager n D's home to detect the presence of high intensity lamps commonly used to grow marijuana constitutes a search. He does not expect that other passengers or bus employees will. he expects that other passengers or bus employees may move it for one reason or another.Sc held that b/c the strong expectation of privacy w/in one's home. Caballes • B. • Other Drug Testing. • When a dog tears open a package while doing looking for drugs and drugs are found. Investigation is not a search if it can only reveal illegal activity. Thus.
• Ex. Karo • DEA agents installed a beeper equipment in a can with the consent of the owner which was later sold to respondents with 50 gallons of ether. even into private areas. Investigative Activity Conducted by Private Citizens A. Suspected a postal worker fro stealing mail. • 6. the police determined that the can was still sitting in one of the homes through the beeper. Therefore. no search and seizure took place by the installation of the beeper. Electronic Beepers • Tracking Public Movements: US v. • Permissible to place beeper on proerpty that is later stolen. Private papers stolen from office safe that were blown open b/c the search was conducted by private parties. of course. less intrusive than a full-scale search. Mixed Public and Private Action 4A applies if private individual is acting. and then track the movement of the property.” But still the search and seizure was valid because the warrant was supported by probable cause based on visual evidence and evidence that could have been obtained through visual surveillance. Placed a beeper in the mail pouch. “The monitoring of an electronic device such as a beeper is. through the beeper. • C. Taborda . Other Sensory Enhancement Devices • US v. • Beepers in the House • Informants. According to the Court. • The use of article means to illuminate a darkened area simply does not constitute a search. as an agent for the government. A government undercover agent posing as s drug buyer enters suspect's home and carried a beepr. As far as the second issue is concerned. • Ex. observed what was happening inside the home. the owner does not have a complaint. The can moved around a lot and ultimately. Since 4A only applies to gov actors. • No violation when where Fed agent managed to overhear conversations in an adjoining hotel room through pre-existing hole in the wall. Therefore. Beepers. but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant.• • • • • • • • B. This was violation of the 4th Amendment. Airline employee acted as a gov agent when when he expected a DEA reward for his actions and the agency had encouraged him Relevant Factors for Determining Agency . the police. Knotts • The movement of one's car on public roads and arrival at a private residence. Tracked the beeper into a van and not a search. and Stolen Property • No privacy rights when if homeowner permits a third person to enter the home with property that contains a beeper. the DEA agents used to beeper equipment to determine that the can was inside of one of respondents home and obtained a search warrant and arrested the respondents. Ex. Private Activity SOS conducted by a private citizen is not a SOS within the meaning of the 4A. • The officers installed the beeper with the consent of the owner and the respondents did not have a reasonable expectation in the can when the beeper was installed.agents invaded a person's reasonable expectation of privacy when they used a telescope to see activities not visible with the naked eye from across the street from a suspect's apartment. even if detection of such movement requires the use of an electronic beeper is not a reasonable expectation of privacy in objects since it is held out the public • More Complex Beeper Issues: US v.
• • • • • • • • • • • • • • • • • • • • • • • • • • • If belief existed whether the private's person's actions has been explicitly or implicitly requested or required by police or other gov agents who had reason to know their actions might well give rise to such belief or that such a belief existed. its principle has held equally applicable when initial searches of containers are valid under the 4A. Andreas Jacobsen establishes that if an initial intrusion not covered by the 4A. Government Investigative Activity Subsequent to Private and Other Legal Searches Limits Imposed by the Initial Search: Walter v. The concept of foreseeability would provide an appropriate limit on law enforcement investigative activity occurring after a private search of a house. The simple act of resealing the container to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights. Foreign Officials Courts have held that evidence obtained by foreign police officials from searches conducted in their country is generally admissible regardless of whether the search complied with the 4A. Ex. B. found that worker's intrusion into the attic of Paige's garage was reasonably foreseeable. 7. Reasonable grounds will exist if the school official reasonably believes that the search will turn up evidence that the student has violate ad school rule or law. Applying the foreseeability concept. and therefore the officer's later inspection of the same space did not constitute a search. The reopening of the container was not a search. While Jacobsen dealt with an initial search to which the 4A did not apply. it wil not implicate the 4A if the victim of the search is a non-resident alien. 8. Gov agents conducted a legal customs search of a wooden crate that was being shipped to an address in the US. b/c no legitimate expectation of privacy existed in the container at that time. An officer's authority to possess a package is distinct from his authority to examine its contents. US A partial invasion of privacy can't automatically justify a total invasion Unauthorized exhibition of films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. Ex. a later intrusion by police officers to the same extent is also free from 4A constraints. The scope of the search msu be reasonably related to the circustmances that justified the search in the first place. Police Entry Into a Residence After Private Entry Popo's search is constitutionally permissible so long as his search does not eceed the scope of a prior private-parry search. pursuant to Fed regulations granting authority to the railroads. and fond drugs hidden in a table therein. Even if the foreign search is conducted by behest of American officials. . The scope of a private search of a mail package. Public Schools and Public Employees Public school officials do not need a warrant or probable cause before conducting a search at school. Drug-testing procedures promulgated by private railroad companies. Court held that the school officials' inspection of a student's handbag was a search. They need only reasonable grounds for the search. Jails. 4A not immolated when prison officials rummaged through D's cell and personal effects 9. One exception occurs if the circumstances of the foreign SOS are so extreme that they shock the judical conscience. Prison Cells. 2nd exception applies when the US agents' participation in the investigator is so substantial that the action is a joint venture between the US and foreign officials. the entire contest of which were obvious. Controlled Deliveries: Illinois v. implicated the 4A. They resealed the crate and folowed it to its destination using a process called controlled delivery. and Convicts A prisoner has no constitutionally protected expectation of privacy in his prison cell or in papers or property in his cell. but occluded that the search was reasonable b/c the official could reasonably suspect that the student had cigarettes in her bag.
identified themselves as the police. the latter being warm. The Function of the Warrant Requirement SOS bad for two reasons: Expose people and their possession to interferences by government when there is no good reason to do so. Searches conducted outside the judicial process. It was granted in submission toauthority rather than as an understanding and intentional waiver of a constitutional right. on the ground that a search and seizure is unreasonable under the circumstances. The Reason for the Warrant Requirement Johnson v. during four of which • • • • • • • • • • • • • • • • • • . The D was convicted for traveling to Missouri from Illinois with the intention of gambling. smoking apparatus. not by a policeman to Government enforcement agent. because it would reduce the 4th Amendment to nullity and leave the people's homes secure only in the discretion of police officers. By placing a magistrate. such an allegation should be afforded no weight in determining probable cause. Re-Cap on Limitations Wrought by Katz The Tension Between the "Reasonableness" and "Warrants" Clauses • • • • • • A. Source of Information on Which Probable Cause is Based 4A mandates a showing of probable cause as justification for a search warrant. As soon as she let them in. and the person. the police told them to consider themselves under arrest because they were going to search the room. The defendant challenged the search of her home (they were living in the hotel) as a violation of the rights secured to her in common with others. the female appellant. US An unsupported allegation he suspect is a known gambler is conclusory. They knocked. by the Fourth Amendment. Police cannot make assumptions to what a judge would decide. Concern is unjustified SOS Indiscriminate SOS are conducted at the discretion of executive officials. IV. w/o prior approval by judge or magistrate per se unreasonable under the 4A. Spinelli v. The manager was contacted who also said they could smell it. 10. not police officers. who may act despotically and capriciously in the exercise of the power to SOS. even if the application is supported by oah. The Importance of the Warrant Clause Generally SOS conducted w/o a warrant are presumed to be unreasonable. Rule: When the right of provacy must reasonable yield to the right of search is to be dicided by a judge. apparently from recent use. establishes that a neutral observer is to decide whether the probable cause and specificity requirements have been satisfied. Note on Johnson Warrant Clause is actually designed as a limitation on the issuance of warrants (No warrant shall issue w/o probable cause and does not explicitly state a preference for warrants.• • Gov employees can never have a reasonable expectation of privacy in their place of work. The search turned up incriminating opium. the officers needed evidence which a judge might have found to be probable cause for a search warrant. Demonstrating Probable Cause 1. US An informant told police (Detective Lieutenant Belland) that people were smoking Opium in a room in the Europe Hotel. probable cause and specifics. At this time. C. The application on which the warrant was based included four main parts: 1. Obtaining a Search Warrant: Constitutional Prerequisites A. Without specific facts. The Amendment may afford the neutral magistrate an opportunity to refuse a warrant. Probable cause must be made by a judge. The police followed to the room and could smell opium from inside the room outside the door. The FBI had tracked D for five days. B. Entry to defendan'ts living quarters was demanded under color of office. challenging the search warrant obtained by the FBI to obtain evidence. D appealed. let them in.
Therefore. A reliable informant told the FBI that D was a bookie and used the two phone numbers associated with the apartment in Missouri. Police then sought a warrant to search the car and D's home. and that a deficiency in one may be compensated for. the popo can gather other info to be included for application for a warrant 2. 2. An informant's tip does not provide probable cause for the issuance of a search warrant if the tip does not state reasons why the informant is reliable and does not include specifics regarding the facts known by the informant IN SUFFICIENT DETAIL SO THAT THE MAGISTRATE MAY KNOW HE IS RELYING ON SOMETHING MORE SUBSTANTIAL THAN A CASUAL RUMOR. are the fact. Notes on Gates It's clear that the reliability or veracity of the informant and the basis for the informant's knowledge are but two of severl relevant considerations when determining the existence or probable cause basd on an informant's tip. there was probable cause to issue the warrant. After D2 arrived in Florida. Is the information reliable? 2. The conviction should be overturned Applying Spinelli Police officer presumed to be honest when making an affidavit. All that is required of an affidavit based in part on an informant's tip is that all the allegations in the affidavit. 3. and 4. permit the magistrate to make common sense evaluation of probable cues. probable cause? If the source is not know to the police to be reliable. there are no facts provided in the informant's tip to explain why the informant thought D was involved in gambling. If the informant's basis of info is unclear. the SC found that given the totality of the circumstances. there was no probable cause to issue the warrant. the pocky may be able to demonstrate reliability by corroborating the details provided by the informant. It is not fatal to the issuance of a valid warrant based on such a tip that the reliability and credibility of the informant can't be established. and is the source reliable? What are the bases and details of the source's knowledge? Credible info is the 2nd prong of the test. Strong Prong/Weak Prong . presenting the above info to the magistrate. What may be questioned is the source of the officer's info If officer is relying on someone else for part or all of the info. The FBI also did not provide any reasons why they thought this particular informant was reliable. The Aguilar two part test is used: 1. Thus the credibility of an officer can't be ever questioned. The government officials stated that this person was a known bookie. it may be sufficient tha tthe info is so detailed that it could only have come form the informant's personal observation and os it may satisfy. Rejection of the Rigid Two-Pronged Test Illinois v. Two phone numbers are associated with the specific apartment. sufficient to satisfy the proof threshold. Rules governing informants: The validity of a warrant based on informant's tip is determined by a totality of the circumstances test. then it ns necessary to make three additional determinations: Who is the source of the info. Popo received anonymous tip that named Ds as drug dealers and specified that D1 would drive to Florida on a particular day and D2 would fly down shortly thereafter to drive the car back loaded with drugs. either standing alone or taken together w/ other fact provided by the affiant. Is the informant reliable? In this case. If the info provided by the informant falls short of demonstrating probable cause. Police confirmed that Ds lived where the tips said they lived and that D2 had made a reservation to fly to Florida as indicated in the tip. by a strong showing as to the other.• • • • • • • • • • • • • • • • • • • • he traveled from Illinois to a certain apartment house in Missouri. Although there was nothing in the affidavit regarding the informant's reliability or the basis of the informant's knowledge. Gates A warrant may issue based on affidavits that are entirely hearsay. Among the considerations are whether the affidavit shows that info comes from a reliable informant and the informant had a sound basis of knowledge for the info. and on one day he was further tracked to a specific apartment in the building. The affidavit must show by a totality of the circumstances that there is a fair probability that contraband or evidence of crime will be found in a particular place. Assuming reliability of the siroccos. police saw him go to a hotel room registered to D1. taken together.
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No specific statement as to informant's basis of knowledge for stating that marijuana was growing on certain property; however some detail concerning the location of the property was given, and any deficiency in bassi of knowledge is compensated for by informant's prior track record of reliable tips Questionable veracity of informant who hated D was overcome by wealth of detail in the tip. The Function Of Corroboration After Gates Officer received an anonymous tip that D was receiving weekly deliveries of drugs by Fed Ex. The officer investigated and found that D hasd been using Fed Ex to send and receive packages regularly. The court found tat the tip, provided probable cause to seize the eFx-Ex package addressed to D. Corroboration was of completely innocent activity, it lent color to the tip, which led to probable cause under the Gates totality of the circumstances. Insufficient Corroboration US v. Leake - anonymous informant phoned the police narcotics office and stated that he was a tradesman hired to do some work. He smelled marijuana in the basement. He stated that in his younger days he had been a marijuana user. The court in Leake held that the warrant lacked probable cause. The court first observed the anonymous caller in Leake had not provided much detail. No names of particular individuals were ever mentioned, no dates were providea dn. No planned future was described as in Gates. This case demonstrates the importance of taking sufficient time to verify an anonymous tip before a warrant is requested. Officer received info from a reliable source who observed marijuana in the D's home and provided directions to that home. Court held that almost anyone can give directions to a particular house w/o knowing anything of substance about what goes on inside that house, and anyone who occasionally watches the evening news can make generalizations about what marijuana looks like and how it is packaged and sld The Gates Test Applied: Mass v. Upton 3. The Citizen Informant Identified citizen informants are considered reliable b/c they are presumed to be motivated by concern for society or for their own safety. Ex. Citizen-informant known to the officer told him that she had seen the D with a sawed-off shotgun, the informant's statement itself provides probable cause and corroboration is unnecessary 4. Accomplices Olice arrested D after two masked men robbed bank. D confessed and identified D as his accomplice. Court held that confession of a co-participant is itself sufficient o establish probable cause - no corroboration is required. The court noted that the D can be convicted solely on the basis of the uncorroborated testimony of an accomplice, and reasoned that it would be contradictory to allow a D to be convicted based on the uncorroborated testimony of his coperpetrator while refusing to find that the same statement would be sufficient to support probable cause 5. Quantity of Info Required for Probable Cause Equivocal Activity Question that is presented is whether a crime has been or is being committed. US v. Prandy-Binett - officer saw a silver covered block that contained heroin. The court ruled the DEA's agent familiarity with shape of the object and the wrapping that according to the DEA"s experience spoke of drugs. It is simply not the law that officers must be aware of the specific crime an individual is likely committing. It is enough that they have probable cause to believe the D has committed one or the other of several offenses, even though they cannot be sure which one. Probable to Cause The probable cause requirement applies to arrests as well as to searches. Probable cause to arrest is determined by whether there is a fair probability to believe that the person arrested has committed a crime. There may be probable cause to search but not probable cause to arrest, such as where a criminal leaves a suitcase full of drugs in the home of an unsuspecting friend.
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The question of fair probably sometimes arises where police know that a crime has been committed, but they are not certain thata suspect is the perpetrator. US v. Valez - undercover cop made a drug by. Undercover officer made a described the sellers and radioed the description to the field team. A guy got arrested with the same description. The court held the arrest was proper, even though the D was not actually involved in the sale to the undercover officer. Valente v. Wallace - found probable cause to arrest an employee for writing notes to the employer containing bomb threats. The arrest was based on the conclusion of the handwriting analyst. Recognized the handwriting analysis was an inexact science but found et expert's conclusion to be a powerful start toward probable cause. The letters were found in the building where she worked; and she acted nervously when questioned about the notes Mistaken Arrests Probable cause to arrest can exist even though the police are mistaken in believing that the person arrested committed a crime. The question for probable cause is not accuracy that the person arrested committed a crime. Probabilities with Multiple Suspects Maryland v. Kringle At 3:16 AM, popo stopped a car occupied by 3 men for speeding. The driver consented to the search of the car. The officer found in rolled-up cash in the glove compartment in front of where D was sitting and found five baggies of cocaine between the back-seat arm rest and the back seat. None of the men admitted ownership of the cocaine or the money. Under these circumstances, the officer had probable cause to believe that D, alone or jointly with the other occupants, committed the crime of possession of cocaine Probable Cause for an Arrest Different from the Charge on Which the Defendant Was Arrested Devenpeck v. Alford If an arest is made as the restul of an unreasonable mistake, the arresting officer may be liable for violation of the arrestee's 4A rights. However, an arrest is no constitutionally invalid merely b/c the grounds stated for the arrest at the time it was made are erroneous, or even if state law does not provide for arrest under the circumstances, as long as the police had probable cause to make arrest. Popo pulled D over on suspicion that he was impersonating an officer b/c his car had police type wigwag lights. The officers also found D's answers to their questioning evasive. Upon discovering that D was taping their convo, Officer Devenpeck arrested D, erroneously thinking that the taping violated a state privacy law. The erroneous charges against D were later dropped and he sued for civil damages, claiming that the arrest violated his 4A rights. If the officers had probable cause to arrest D for impersonating an officer, the arrest was valid; if does not matter that they lacked probable cause for the offense they stated at the time of the arrest. 6. Collective Knowledge Police officers called upon to aid other officers in executing arrest warrants are entitled assume that the officers requesting aid offered the magistrate the info requisite to support an independent judicial assessment of probable cause. Once Officer A demonstrates to tha magistrate that PC to arrest a suspect, any other officer can make the arrest on the assumption that the warrant is valid. The arresting officer need not have independent knowledge of the arrestee's criminal activity. The same rule aplies in warrantless arrest cases. If Officer B makes an arrest pursuant to orders from Officer A, and the latter had PC for the order, the arrest is valid - Officer B need not be familiar with the facts supporting probable cause. 7. Staleness of Info. A problem that sometimes arises in assessing probable cause is that the officer's info is dated. Although a person's criminal record typically is inadmissible at trial (for fear that the person will be convicted b/c of his past conduct rather than for committing the present crime), it may be used to support probable cause in an affidavit for a search warrant. Factors to consider: The maturity of the info, nature of the suspected crime, habits of the accused, character of the items sought, and nature and function of the premises to be searched.
Conspiracy was long-standing and protracted and D owned a home although w/o visible source of income • Ex. Delivery of child porn to D's home 2 to 14 months before search; info was not stale where police submitted with their warrant app of an expert's affidavit indicating that pedophiles rarely, if ever, dispose of sexually explicit material. •
Probable Cause the Warrant Requirement
Probable Cause, Specificity, and Reasonableness 1. Things that can be seized • Used to be only things allowed were "fruits and instrumentalities" of crime. • Mere evidence was not allowed to be searched • Case that Refutes mere evidence rule: Warden v. Hayden Facts: search of home, convicted of robbery, searched clothing and evidence admitted w/o • objection, objection to it being just mere evidence • Issue: Should there be a distinction made between mere evidence and those related to the fruits and instrumentalities of the crime? • Holding and Reasoning: no distinction in 4A between mere evidence and instrumentalities of crimes to establish probable cause. Probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. The clothes could be seized since they would help in the identification of the culprit. • Dissent: Personal effects and possessions of the individual are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Individual should have the choice of opening his private effects to the police (apart from contraband) 2. Probable Cause as to Location of Evidence • Police may have probable cause to believe suspect committed a crime and have evidence but don't know where the evidence is located. • A cop can have probable cause to investigate evidence on a suspects' premises if there is a good chance the evidence will likely be found at the place he lived. • Depends on the type of crime, the nature of the items sought, suspect's opportunity for concealment etc. • Probable cause does not automatically exist to search a persons' home simply b/c that person has been involved in a crime. 3. Searches of Non-Suspects' Premises • Police may have probable cause to search a person's premises for evidence even though they are not suspected of a crime. • Zurcher v. Stanford Daily - Officers had probable cause that photographer had taken pictures of demonstrators who attacked police. Officers searched the office although there was no allegation the office members were involved in the unlawful acts. Valid warrants may be issued to search any property, whether or not occupied by a 3rd party where there is probable cause to find evidence of crime. As long as there is probable cause to evidence of a crime = fine to do. • Practical problem with not allowing search warrants for 3rd parties: this allows selfproclaimed "innocent" third parties from hiding evidence when they may be in cahoots with the culprits and therefore not allowing the warrants will not allow the police to find evidence. • Law Office Searches • Problems of confidentiality arise if the office has probable cause to search a lawyer's office for evidence against the client - usually not allowed, but if the lawyer is engaged in criminal activity unrelated to representing clients, then the search is allowed 4. Describing the place to be searched The warrant clause requires a particularized description of the place to be searched - in order to avoid the abuses of general warrant • Function of Particularity Requirement • Operates as a necessary control on officer's discretion to search a place
Severability • If clause in the warrant is over-broad. and whether there is any reasonable probability that another premise might be mistakenly searched. Reasonable Particularity • The reasonableness inquiry takes into account how much an officer would be expected to know about the property in the course of obtaining probable cues to seize it." • Holding: No. • Question: how does one determine whether a warrant's description of the things to be seized is sufficiently particular? Andersen v. • Issue: Whether search warrants that are so broad make them invalid b/c it will make them into general warrants such as statements at the end that say "together with other fruits. Particularity for Arrest Warrants • Arrest warrant must describe a person to be seized with sufficient particularity. Describing the Things to be Seized • Warrant clause requires that it must particularly describe the things that the officers can look for and seize. instrumentalities. A search is allowed to find chid porn by saying it will seize any and all visual depictions in any format or media minors engaged in sexually explicit conduct. Warrant can't describe an entire building when cause is shown for searching only one apt. the defect will not ordinarily taint the entire search. and evidence of crime at this time unknown. Do police have authority when searching a premises to be able to search a freestanding garage behind the house at the address? Cases have held that vehicles on the premises are searchable as well as any locations within the curtilage of the house. • Ex. Seized documents related and not related to the crime. . Searches for Computers • Police will be required to peruse innocuous private documents a problem arises with computers. • Most courts have held that any person's property is subject to search so long as the property could contain the items described in the warrant. 5. Whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort. • Ex. • ex.• • • • • • • • Establishes a specific record of probable cause as to location prior to search • Prevents for using the warrant as a blank check to expand a search by using a overly general description of the place to be searched Reasonable Particularity Depends on the nature of the place to be searched and on the information that an officer could reasonably obtain about the location before a warrant is issued. 6. Maryland • • Facts: attorney who specialized in real estate came under scrutiny by MD Fraud's Unit squad. • Have to look at the context: if you can't search in certain folders b/c they are named a particular way then people can get away with just hiding the incriminating info in "innocuous" folder names. • Analysis: The phrase must be read in context that it authorizes only the search for and seizures of evidence relating to the crime of false pretenses with respect to the fraudulent sale. The Wrong Address Sometimes warrants have misdescribed an address. Applied for warrants to search attorney's law office to search for specified document of pertaining to a fraudulent sale of land. The Breadth of the Place to be Searched A question is whether the warrant sufficiently describes particular places in the general area to be searched.
Held that unreasonable since not compelling reason for the bullet. other than a showing that the contraband is likely to be on the property or person to be searched at the time. and designate the judge to whom it must be returned. flight from prosecution) C. allowed due to interests such as risk of destruction of evidence. Reasonableness and Warrants • Some searches found to be unreasonable even with warrant and probable cause. More time allowed for warranted executed in nighttime hours) 2. seized. • Delay can be allowed if there is going to be adverse result (ex. Endangering life. there Is no violation of the knock and announce requirement b/c there is no "breaking" • Emergency Circumstances: Richards v. police are not required to announce their presence before entering. • Constitutional Basis of the Knock and Announce Requirement • Longstanding common law endorsement of the practice of announcement.• This means that if an over-broad term is used such as a catch all phrase. "Refused Admittance" • • Officer can break open premises after announcing purpose and authority and is refused admittance. • Identify person/prop to be searched. are covered by specific statute requires no special showing for a nighttime search. 7. "any items written in • specificity are allowed but any that are found in connection with the broad term are suppressed. Exceptions to the Notice Rule • • No "breaking" • If the door to the residence is open. in a sense all warrants are anticipatory. execute during the daytime unless exigent circumstance. • Must be executed within the specified time. Knock and Announce Requirement • Statutes require officers executing the warrant knock and announce their presence before attempting to enter a dwelling. • So if an officer can trick the homeowner into opening the door. • Medical procedure to remove a bullet by performing surgery to be entered as evidence as the defendant was wounded in the process of committing a robbery. hot pursuit of suspect. 8. D. etc. Wisconsin • • • • • . return the warrant to the magistrate judge. • Refusal to admit can be deemed from a failure to answer the door within a certain period of time is dependent on the circumstances (ex. Executing the Warrant • 1.C. • Method of officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure • However. However a judge may delay any notice if authorized by statute. Details of the Warrant. • There needs to be a fair probability that the contraband will found in a particular place but also probable cause to believe the triggering condition will occur. Sneak and Peak Warrants • Person must give a copy to the person whose premises is being searched. FRCP 41(e)(2) set forth the info that must be included. Anticipatory Warrants • Can government obtain an anticipatory search warrant conditioned upon future events that if fulfilled would create probable cause? • B/c probable cause requirements looks to whether evidence will be found when the search is conducted. • Exception: searches for narcotics.
Inspector found no credit cards with the defendant but upon the consent of the defendant. • 4. an informant told a postal inspector that the defendant had stolen credit cards. • Officer does not need to proceed by summons. City of Fitchburg: allowed the arrest on persons who violated an ordinance that prohibits the obstruction of public passages • Atwater case . the informant was suppose to give a signal to the inspector. The meeting took place in a restaurant and the informant gave the signal and the defendant was arrested. The Constitutional Rule: Arrests in Public • Note: Constitutional basis for permitting a public arrest in the absence of a warrant. Arrest Versus Summons • The reason for it being reasonable to arrest under the 4th Amend: • Officer could stop criminal activities before they are committed • Diaz v. the inspector searched the car and found 2 stolen credit cards and the defendant was convicted • Issues: Was the arrest unlawful? • Holding and Analysis: The court held that it was a common rule in the common law and it is accepted by majority of the states and Congress that a peace officer can arrest a person for felony or misdemeanor when it takes place in his presence and he can arrest a felon when he has reasonable grounds to believe that the felony took place. The court held that it was not ready to restrict this rule ant it ruled that the arrest was lawful and the ruling of the lower court was reversed. • Therefore. Arrests in Public and In the Home • 1. • 3. • Does Violation of the Knock and Announce Requirement Justify Exclusion of Evidence? • Held that violation of the knock and announce requirement does not justify exclusion of evidence found in the subsequent search of the premises.S. Timing and Scope of Execution • Exact time of execution within that period is up tot he officer's discretion but delay may leave officer unable to execute the warrant if intervening circumstances negate the previous showing of probable cause.it may be allowed b/c it was reasonable requirement impose limitation on the destructiveness of a search • 3. if property is destroyed . The inspector told the informant to hold a meeting with the defendant and if the defendant had stolen credit cards with him.held that an officer can even arrest for a minor offense and no need for summons. Arrest Standards and Applicability of Warrants To Apply of Not Apply the Warrant Clause • Presumption of unreasonableness can be overcome in a variety of circumstances. even for minor offenses if the state authorizes a custodial arrest for the defense. misdemeanor (won't be apprehended unless immediately and may cause injury to himself or others). Watson • Facts: Watson. V.1 Arrest Without Warrant • Officer may arrest w/o warrant if the officer w/ reasonable cause believes the person has committed a felony. • A. You just need probable cause but no warrant and also also no probable cause and no warrant.• Officers allowed to make an unannounced entry if the announcement would create a risk of destruction of evidence or a risk of harm to the officers or others. . a misdemeanor in the presence of the officer • 2. • U. Standards for Warrantless Arrests • Section 120. Exigent Circumstances After Knocking • Discussion of exigent circumstances allowing the police to break a door down after knocking without permission after knocking and announcing their intent.
Deadly force may not be used to prevent the escape of a felon unless: • It's necessary to prevent the escape Officer has probable cause to believe that the suspects poses a significant threat of • death or serious physical injury. McLaughlin • Facts: A guy was kept in prison for a while before he had a hearing for warrant-less arrest. Davis . • Ex. • Notes: Use of Excessive Force in Making Arrest . 48 hours should be a prompt amount of time. Police officer used a improperly trained dog or fails to give proper warning before letting the dog loose = unreasonable use of force. • 4. This amount is consistent with ALI's Model code for Pre-Arraignment.S v. suspect posing an immediate threat. actively resistant to arrest or attempting to evade arrest • An officer can use non-deadly force but the manner may be unreasonable. Protections Against Erroneous Warrantless Arrests • A person who has been arrested w/o warrant is promptly entitled to a post-arrest assessment of probable cause by a magistrate.police can use reasonable force to effect an arrest. • The probable cause to detain hearing must be held within a reasonably short period of time following arrest to avoid any significant restraint on the constitutionally protected liberty of the accused.a man was held in prison and magistrate determined that probable cause to arrest him existed solely on the basis of info obtained before Powell's arrest which was made between 48 to 72 hours. • County of Riverside v. • Remedy for McLaughlin Violation • Powell v. Take into account factors such as unreasonableness for not holding a hearing such as time to gather additional time. • Detentions for Less than 48 Hours • Individual detention may be unreasonable even if it is less than 48 hours • U.• Concurrence: The need for warrant in every case would severely hinder effective law enforcement. • The state need not provide the adversary safeguards associated with a trial (no right to cross-examine witnesses. nor is entitled by representation by counsel). hearsay evidence may be allowed. or out of ill will. A girl was arrested for falsely reporting a theft and held for 2 hours and the police questioned her about her boyfriend.found detention unreasonableness even for after being only held for 2 hours. Everyday problems of processing suspects with an overly burned criminal justice system. The man held that the statement should not be included b/c of the window. After 48 hours. but also balance reasons such as moving prisoner from one to another. There is nothing in the federal system that disagrees with this number. • Dissent: 24 hours seems to be more reasonable than 48 hours. • Court held that delay is unreasonable if it is motivated by desire to uncover additional evidence to support the arrest or to use the suspect's presence solely to investigate the suspect's involvement in other crimes. Nevada . • Issues: Does the 4th Amendment allow for reasonable postponement of probable cause determination for non-warrantless arrest? • Holding: Yes • Analysis: To allow a hearing right after the arrest will clog up the courts. it no longer becomes the suspect's responsibility to prove unreasonableness but the government's. • Relevant factors to determine the reasonable: • Severity of the crime. The judge held that the .
• Arrests in the Home of a Third Party • Absent exigent circumstances. • 5.a magistrate does need to determine probable cause that a person is located in the home of a third party in an arrest warrant but does in a search warrant. porch light was on. • Hence. . Sometimes the courts will say that if the suspect comes out of his house and then is arrested.Y. Does it mean something less than probable cause? • U. • This allows for potential abuse by the government especially after 9/11. • Hotels and Motels need to use the Payton test b/c they are not homes. the people can conduct a warrantless arrest. . • Arrest warrant v. N. • The Rights of an Overnight Guest and Temporary Guests • Overnight guests had an expectation of privacy but temporary guests do not. then steagald doesn't apply and payton allows both arrest of the subject of the arrest warrant and use of evidence found against the 3rd party. Reasonable belief and not probable cause. • The other concern is that it makes it very difficult for cops to capture fugitives having to use a search warrant. Some say that a homeless person does not have a home so is not subject to the Payton test but some courts are sympathetic to homeless person's privacy and say that the term home can be applied flexibly. • Material Witness • Power of arrest applies to material witness to a crime under certain circumstances. • There is concern that the 3rd party's may be a victim of a search where there is no probable cause to believe the suspect is on the premises. police officers executing an arrest warrant may not search for the person named in the warrant in the home of a 3rd party w/o first obtaining a separate search warrant for the 3rd party premises. Search warrant . • Reason to Believe the Suspect is at Home • Payton left it to the officer executing the arrest warrant to determine whether there is reason to believe the suspect is within. An arrest is not allowed without warrant in exigent circumstances or the arrestee consents. V.S. a social guest usually have a expectation of privacy but business guests do not. Magluta . some say that a warrant is not required if the person voluntarily opens the door way.court held officers need only reason to believe that suspect was at home and not probable cause. • If a person opens his home to the police after they announce their presence.held that arrests exception does not extend to arrests in the home. • An arrestee found on premises owned by a 3rd person and illegally searched by the police might lack standing to challenge the search.information that led to a probable cause decision would not have been affected by a longer detention and therefore. and D's car was in the driveway • Is the Arrest at Home or in Public? • Important to find if the arrest happened at home or in public. the holding was not unreasonable. it is in public and no longer needs a warrant. • If the suspect is a co-resident of the 3rd party. Judge emphasized that the majority believes that the home has always been viewed an especially private place. Arrests in the House • The Payton Rule • Payton v. • Court held yes b/c visitor was there. • Homeless Persons and Hotels and Motels • A lot of courts are split. If the rental period has finished up or the person has been evicted. is it considered an arrest in the home or in public? Courts are split.
J. to make a forcible stop. The government's interest in preventing harm must be balanced against the invasion into a person's privacy.J. then followed him up the street. He found and removed a pistol. One would walk up to a store window. It would be unreasonable to require that the policeman take unnecessary risks.) Infringement of one's personal liberty is only reasonable if probable cause is present. even in the absence of probable cause for arrest and any weapons seized may be introduced in evidence. Affirmed. Standard would the facts available to the officer at the moment of the seizure or the search Warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally protected rights! . nothing in the conduct of D and his friends dispelled the officer's reasonable fear that they were armed. and will potentially exact a high toll in human injury. even in the absence of probable cause for arrest. at which time the officer spun one of the men. The suspects talked with a third man. He has a need to protect himself and others in situations where he lacks probable cause for arrest. C. for P. Thinking the suspects were "casing" the store. The men mumbled a response. and answers may not be compelled. look inside. Terry (D). • REASONING: (Warren. A refusal to answer is no basis for an arrest. • Reasoning: This allows police to prevent crime if this is not allowed then crime prevention is hampered. but want to stop a suspicious person for preliminary questioning to determine whether a crime is about to occur. The right to frisk must be immediate and automatic if the reason for the stop is an articulable suspicion of a crime of violence. In this case. but it may be a basis for continued observation. An officer is justified in conducting a carefully limited search of persons whom he reasonably suspects to be dangerous in order to discover any weapons which might be used to assault him or other nearby. In some contexts. It waters down probable cause to a nullity. . The Court went on to say that. Ohio • STATEMENT OF THE FACTS: An officer observed two men standing on a street corner.) No. D was charged with carrying a concealed weapon. • CONCURRENCE: (White. and return to confer with his companion. and the state supreme court dismissed D's appeal. • DISSENT: (Douglas. the stop and frisk law was invoked which allowed for search and seizure of persons and things are a standard of proof less than probable cause. effective crime prevention and detection is a governmental interest in appropriate circumstances for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. We are stuck deciding probable cause b/c the court has chosen to conflate probable cause and reasonableness which is what happened. This process was repeated about a dozen times. • 1. J. but citizens are not obliged to answer. The majority gives a policeman more authority to make a seizure and conduct a search than a judge has.) A policeman can address questions to anyone on the streets. Stop and Frisk Established • Terry v. The exclusionary rule has limitations as a tool of judicial control.Stop & Frisk and General “Seizure” Requirements • Intro: Police recognize they do not have probable cause to act. The policeman should use an objective test. around and patted his breast. The Ohio court of appeals affirmed.) An officer must have constitutional grounds on which to insist on an encounter. • Therefore. • CONCURRENCE: (Harlan. the rule will not be effective as a deterrent. D moved to suppress this weapon from evidence. and be able to point to specific and articulable facts which reasonably justify the intrusion. • LEGAL ISSUE: Is it always unreasonable for a policeman to seize a person and subject him to a limited search for weapons when there is no probable cause for arrest? • HOLDING: An officer is justified in conducting a carefully limited search of persons whom he reasonably suspects to be dangerous in order to discover any weapons which might be used to assault him or other nearby. J. The trial judge denied his motion. the officer confronted the three men and asked their names.
The counter-argument is that the Terry helped to narrow down what could be down so that these incidents may be regulated. Stop and Frisk = reasonable suspicion backed by articulable facts. • If officer reasonably suspects anyone is armed and dangerous. The police told him to exit the vehicle and noticed a bulge in his pants and frisked him finding a weapon. The suspect was then arrested and found heroin and another unregistered firearm.Adams v. The court had to decide whether D's exit from the car ordered by the police was justified. The court also held the search permissible since the officer had reason to fear for his safety about hearing the weapon. A routine exit is not that much of an intrusion since you are already seeing the suspect while talking with him and the safety of the police officers is important so a mere inconvenience is not a big deal. • The judges look at cases on a selection bias. The officer then approached the car and when the window was opened the cop reached in and pulled out the gun from the suspect's waistband. the officer had probable cause to arrest Williams for unlawful possession of the weapon. The source of this info may even be an unnamed informant's tip. w/o a prelim frisk. which visible to the naked eye.specific info supplied by an informant • An officer may reach into an area of persons' clothing.Pennsylvania v. The court also held that the search of the passenger compartment which lead to the discover of heroin as a search supported by probable cause to arrest the suspect. Probable cause= reasonable belief. The tip need not have sufficient reliability to support a warrant in order to justify the seizure. • The problem with using the policeman's intuition: there are no statistics about where a cops tries to search and found nothing on the suspect for example a horrible cop had searched 1000 people and actually found something on 1 person. courts will grant police fairly broad latitude to do stuff . The court held that the Terry ruling does not just apply to an officer's personal observation but can also happen with info supplied by another person such as informant's tips.the police officer could have avoided danger by doing nothing since there no showing that there was a threat to public safety. Since the tip was accurate. Mimms and Passengers . Critique of Terry • Terry case gave enormous discretion to the police.• • • • • CRITICAL SUMMARY: This case represents a delineation between a reasonable belief and a reasonable suspicion. when the officer has specific info that a weapon is hidden there. the officer may conduct a frisk of that person. • Problem: This provided a springboard for modern police methods that target black men and others for arbitrary and discretionary intrusions. • Some critics argue that it is for the protection of police officers however many of these critics are those who come from socioeconomic and racial backgrounds that are predominantly free from police harassment. Mimms • Facts: This case where Mimms (D) was pulled over for a routine stop for an expired license plate. it was easy for cops to justify stop and frisks. • With the expanded police power and diminished individual freedom. • Notes: • The nature of the limited intrusion. so long as the tip had some indicia of reliability. Williams: • Caveat . Early Application of Terry . Bright Line Rule under Terry . such as a belt. • An officer received a tip from an informant that he was familiar with face to face about a person carrying a firearm in his car and revealed the exact location. how limited is the intrusion itself? Is it a full scale body cavity search or 5 second pat-down is it minimal and sufficient enough? • Was the officer reasonably in fear of his life? If there is an officer safety aspect. • The bright line rule by the Court was: Since the police officer had routinely asked people to exit the car as a precautionary measure to notice any unobserved movements.
Summers and Muehler v. • The Court held this was reasonable the VIN is a signifiant threat in the web of regulation of the vehicle and a motorist must expect that such regulation will on occasion the State to the VIN of his vehicle and expectation of privacy. Class • Facts: a routine traffic stop and the officer asked to see the VIN but it was covered by papers. license matched up but not the flight ticket. The plurality (which I agree with) said that since the police told him that they were popo and suspected him of narcotics and held his ticket. • Mena Case: The court held in Mena that it was ok for officers to question the detainee about her alienage while conducting a search warrant . they asked for identification.reasoning: a detention in handcuffs is more intrusive but reasonable de to the circumstances being that they were searching a gang banger's house but also needed to take into account the length of time the person was in handcuffs. at the airport.reasoning is to prevent the occupants from fleeing. Mena: • Summer Case: Court holds that when police officer conducts a search warrants that he can require the occupants of the premises to remain . • Mendenhall Case: DEA were investigating a girl for being a drug courier. • Airport Confrontations After Royer • . • It works with the notion when is someone seized for purposes under the 4th Amendment • Application of the Free to Leave Test • Florida v. Royer . • The Mendenhall "Free to Leave" Test. They instead approached her and requested to see the respondent's identification. Wilson . • The court held that the accost by the DEA did not constituted a seizure since the event took place in a public concourse? (what about all the other seizures at traffic stops). open at least one of the vehicle's doors w/o crossing the plane of the vehicle to inspect its interior to determine if the driver is armed. The unnecessary invasion that will be imposed on innocent citizens must be weight against the limited additional risk to the police officers. • Rule extracted: a person has been seized only if a reasonable person would have believed that he was not free to leave. Court held that these detentions were less serious than those in Terry.. The officer entered the car to move away the papers and discovered a gun. 2. When it appears in their experienced judgment prudent to do so. would be the threatening presence of several officers indicating that compliance with the officer's request might be compelled.Suspicious activity of person same as Mendenhall and then detectives asked to speak with him and upon request produced his airline ticket and driver's license with different names the detectives asked him questions and he became nervous and then detectives did not return the airline ticket and identification and asked him to go to a room and w/o Royer's consent brought his baggage and asked to open and then Royer w/o oral consent and then opened the suitcase. that it could believed that reasonable person thought he could not be free to leave. Mere police questioning doesn't constitute a seizure. When Does a Seizure Occur? The Line Between "Stop" and "Encounter" • Intro: Court has difficult determining whether a stop has occurred when the police conduct is not as affirmatively coercive or as physically intrusive as in Terry.• Maryland v. • Mimms Applied: New York v. She was escorted to DEA office and then asked to be searched and she agreed and DEA found drugs.held that the Mimms rule applied to passengers as well as the driver. Examples that might indicate a seizures. • Detention of Occupants of Residence During Legal Law Enforcement Activity: Note on Michigan v.. Scope of Mimms Bright Line Approach • • The problem arises when the car is tinted so darkly that the police can't see inside so is the police officer allowed to open the door to check for any danger? The did balance test of the safety of the police officer and the interest of the citizen and said .
but MUST the officer advise the passengers of their right not to cooperate? • Holding and Analysis: No. • US v. Jackson .physical touching if intentional is a seizure in any case. Second. this cannot be allowed to lead to a reasonable seizure. articulable standard to negate police discretion and its potential for discriminatory clause. the officers did not seize the Ds according to the Bostick rule. Two officers went down the aisle asking people to identify their bags and one stayed at the bus’ entrance. Hodari D. • For physical seizures .• • • • • • If a person refuses. which both Ds said yes. Drayton • Facts: Drayton and Brown were on a bus when 3 officers boarded at a gas stop. and the citizen must actually submit. • Officers conducting a search nee dnot tell the buss occupants that they are not free to cooperate • Notes: • Reasonable for the officer to search but not under the probable cause standard. State of Mind Required for a Stop: • Brower v. It appears the roadblock must stop cars on the basis of some neutral. • A seizures according to the Mendenhall test only if not "whenever" the officer uses a show of authority. the court rejects in specific terms the suggestion that police officers MUST always inform citizens of their right to refuse when seeking permission to conduct a warrantless search. The guy gives consent to the search. • Issues: The fourth amendment permits police officers to approach bus passengers at random and ask questions and request consent to searches provided a reasonable person would understand that he or she is free to refuse.as long as the person is not voluntarily detained Bus Sweeps: • United States v. This did not constitute a seizure as it was not coercive. • For a non-physical seizures . However. When they reached Ds. those which the officer has used a non-physical show of authority. First.Stopping a person at a roadblock is a seizure for purposes of the 4A. . they asked to check their bags and Ds said yes. Delgado • Factory sweeps by INS agents do not consist a seizure where factory surveys were conducted to search for illegal aliens although agents were posted all around the factory and had weapons on them. • The free to leave test was a necessary but not sufficient test for determining whether a seizures occurs.officer boarded bus saying he was narcotic officer and had a dogsniffing and then said people could leave their bags on buss and take them as they departed. the search was reasonable b/c the Ds consented to it and knew it was occurring. Factory Sweeps: INS v. Third.it must be shown that a reasonable person would not feel free to leave. then the officer asked to check their person. The Suspect Who Does Not Submit: • California v. • What happens when a person refuses to cooperate? • Two types of seizures: those which the officer has physical touched the citizen. • No arrest or seizure occurs when a officer simply approaches a person in a public place and asks her if she is wiling to answer questions . w/o individualized suspicion that the driver has violated a law under certain conditions. The desire to be left alone demonstrates that the exchange to be non-consensual so the seizure occurred before he became violent. Street Encounters • The test is whereto the police officer was actively coercively to be considered a seizure. County of Inyo . Both Ds were found to be carrying cocaine.
• Note on Hodari's Impact on Civli Rights Action • Carter v. • Anonymous Tips: Alabama v. the officers stopped their car and approached the men and were wearing plain clothes. The person was not carrying a case • . the D quickly moved to pick up the weapon. • When Does Submission Occur? • Problem left for courts is to determine when a suspect as submitted to a non-physical show of authority. The scheme backfired and there was a gun fight where the D and popo were killed. Ruhl was known for being armed so the police came up with a scheme to arrest Ruhl.decided whether an informant's tip could be credited toward reasonable suspicion. • Issues: Was the man unreasonably seized? • Holding and Analysis: 4th Amendment does not protect against ill-conceived and dangerous plan to effectuate an arrest. Buscher . The DOC officer had seized Ruhl by shooting him in the chest but wasn't seized when the officer shined his flashlight and announced state police. • Lawful stop police stop does not constitute a seizure under the 4th Amendment when it comes to car pullovers 3. the seizures was eminently reasonable b/c Ruhl had been firing at the officers. Grounds for a Stop: Reasonable Suspicion • The degree of suspicion required to make a stop is referred to as reasonable suspicion by the courts. • The Court must investigate the source of information upon which reasonable suspicion is based • The Court must evaluate whether the information is sufficiently suspicious to justify a stop. It can't be said that the D had yielded.• Argument against: the case should not focus on the citizen's reaction to the officer's conduct but the officer's conduct itself.case illustrate the impact of Hodari on civl rights actions involving claims of unreasonable pocky actions up to and during an arrest. pre-seizures conduct is not subject to the 4th Amendment scrutiny. Under Hodari. There was heavy drug traffic that occurred. and therefore there was no seizures before the gun fell into the plain view of the officers. but were readily identifiable as officers due to their firearms and badges. The police obtained sufficient evidence to authorize Ruhl's arrest. The officers called and then he just walked away and said that the officer didn't want him and was he was walking away a pistol fell form his waist. Instead of stopping and standing still. the seizure did not occur until he submitted to authority. Ruhl did not submit to Bensyl when he started shooting. • US v. The 4th Amendment prohibits unreasonable seizures not unreasonable or outrageous conduct in general. Therefore. Suspecting a drug transaction. • Issues: Was the D seized w/o reasonable suspicion by the time he had dropped the gun? • Holding and Analysis: Lender's momentary halt on the sidewalk with his back to the officers constituted does not constitute a yielding to their authority. Williams . White • Court held tat anonymous informant's tip that was significantly corroborated by a police officer's investigation provided reasonable suspicion for a stop. Lender • Facts: officers were patrolling an area in NC. when he was shot dead. Source of Information • • Adams v. but does not talk about reasonable suspicion based on anonymous informants. At that point. • Facts: Police got an anonymous tip that White would be leaving a particular apartment in a certain car and would be holding a case of cocaine. The D's actions after he dropped the pistol indicate further that he had not yielded. • Facts: Brought an action for violation of her husband after her husband was killed during a botched arrest. A. Officers observed an group of five men huddled in a corner. Police were investigating Ruhl for solicitation to murder his wife.
An informant's veracity and basis of knowledge remain highly relevant in determining the value of the report and the informant's tip and the officer's corroboration of the tip that the stop was supported by reasonable suspicion. under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. embarrassing police search could do so by simply placing a call to police and alleging that that person possesses a gun.but the car was right description. If an unnamed caller with a voice sonds the same each time tells police on two successive nights about criminal activity which in fact occurs each night will be treated differently than just a one time anonymous tip.case dealing whether an anonymous tip concerning possession of a gun constitutes reasonable suspicion when it is not corroborate by any predicted activity. The Supreme Court declined this argument. Since the departure of the person matched the tip. can the popo stop him? • The Court said Yes.L. Second. sufficient to justify a police officer’s stop and frisk? • Holding and Analysis: The court held that in this case. possessory violations allow a officer to quietly observe the suspect for a time to see if . the officer suspicion that J. • Facts: A tip was given about a guy wearing a plaid shirt on a corner would be carrying a gun. All the police had to go on was an unknown. • Anonymous Tips Concerning Gun Possession • Florida v. The tip in this case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in this case. The anonymous tip did not itself provide reasonable suspicions b/c it failed to show that the informant was reliable. The informant was anonymous and the no audio recording of the tip. the reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. They reason was that anyone seeking to harass another to set in motion an intrusive. Furthermore. which helps to confirm the information was reliable to have the stop. JL . • Issues: Whether an anonymous tip that a person is carrying a gun is. The issue requires that a tip be reliable in the assertion of illegality and not just in its tendency to identify a determinate person. Florida claims that there should be a “firearm exception” to the Terry analysis. without more. The exception occurs if public safety were in imminent risk. The D held that were no reasonable suspicion • Issue: Was there reasonable suspicion based on the anonymous tip • Holding and Analysis: Yes. Reasonable suspicion is a less stringent standard than probable cause. • JL and a Tip about Reckless Driving • What happens if a tip is given about a reckless driver and the cop goes but the driver is not at that point of driving recklessly. Reasonable suspicion can be established with info that is different in quantity or content than required to establish reasonable cause. This is not possible when the suspect is driving a vehicle. The police still followed. Found marijuana and cocaine. A drunk driver poses an imminent threat to public safety. The police went and stop and frisked and found a gun. Moreover. • Concurrence: Anonymous tip can provide lawful basis for some police action. Gun possession and drunk driving cases are distinguished b/c law enforcement officers have less invasive options. Reasonable suspicion can arise form info that is less reliable than that required to show probable cause. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated. They may initiate a simple consensual encounter for which no articulable suspicion is required.
The profile is of no legal significance in the determination of reasonable suspicion.the court held that an officer stopping the defendant on the basis of a gang member profile was ok b/c profile is nothing more than a administrative tool of the police. This means a officer can ask a black person questions. Beck . • Objective observations. The second element process just described must raise a suspicion that the particular • individual being stopped is engaged in wrongdoing.prevents an officer from engaging in racial discrimination in deciding whom to encounter and imposes limits on an officer's decision to track somebody before an encounter. • US v. or to put it shortly based on race. • Particularized suspicion contains two elements: • The assessment must be based upon all the circumstances. Limitations on Police Action • The Use of Race in Encounters in the Absence of Reasonable Suspicion • An officer can do anything short of a seizure for any reason or no reason. Mere residency in state cannot imply that a person can be pulled over for reasonable suspicion • • Note: however the court does not prevent the officer from using the the CA profile factor in deciding whether to stop a motorist.D fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotic trafficking. Overbroad Profile Factors • Some profile factors relied on by police are far too broad to support reasonable suspicion in the courts. is this enough to justify a stop of that person? • Illinois v. A match between certain characteristic does not automatically establish reasonable suspicion. It was unexplained why the entire state of CA was a profile factor.there are indications of incipient criminality but it can't happen in drunk driving as the suspect could cause a sudden dangerous accident. • Proving an equal protection violation is not easy though at the contact or pre-contact stage.officer stoped a motorist b/c he was driving through arkansas in a car from CA which is source state of drugs. info from police reports. A profile is common characteristics of those engaged in a certain type of criminal activity. Wardlow . Officer caught up and patted him down and found • • • . Use of Profiles • Officers often use profiles to determine whether the conduct of citizens is sufficiently suspicion to justify a stop. Malone . Quantum of Suspicion • Test for determining whether reasonable suspicion exists in a given set of circumstances: • Totality of circumstances must be taken into account. • US v. Reasonable Suspicion and Flight from the Police • It a person runs upon seeing the police. • A black man brought up statistics in a case and the court held that statistics about prima facie case of discrimination this does not prove a case of intent of discrimination. • Equal Protection Clause helps to provide protection to this happening . modes or patterns of operations of certain kinds of lawbreakers • From these a trained officer draws inferences and makes deductions • The process deals with probabilities. • JL and Anonymity • A face to face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip bcd the officers receiving the info have an opportunity to observe the demanor and perceived credibility of the informant. The fact that a characteristic of a defendant also happens to appear on the profile doe snot preclude its use as justification providing reasonable suspicion for a stop. He simply can't justify the stop by this factor. • B.
terry frisks are justified only for protective purposes and that a search for evidence is not permitted under Terry. • Applying Michigan v. Dickerson .upheld a search of locked glove compartment. The appellate court held that flight form the police in a high crime area did not constitute reasonable suspicion. Long • Power to search under Terry can extend to protective examinations of areas beyond the person of the suspect. TX. once he returned to his car after the stop was completed. • Protective Searches beyond the Suspect's Person: Michigan v. The officers have a legit concern that D might gain access to a weapon and use it on the officers. Brown .permissible to frisk all occupants of a car after a cigar box of marijuana found in the car. The stop happened at night and at a place of high crime so this gave even more reason for the officer to do the frisk. Officers approached a man who looked drunk. The court in Russ gave too little credence to an officer's concern for his safety in making a stop explicity on a weapons charge. The D might not have been able to reach for the weapon during the stop. • Suspicion Required to Support the Right to Frisk • US v. Drugs and weapons go together so reasonably believed that individuals they were dealing with had weapons. 4. Unprovoked flight is simply not a mere refusal to cooperate. It was permissible under the circumstances for the officers to do a cursory inspection of areas of the car from where the weapon could be quickly obtained after the stop was over. Officer did a pat down and squeezed something knowing that it was not a gun so determined and found crack cocaine. The court it was not unreasonable under the circumstances for the officer to have feared that D was moving back to give himself time and space to draw a weapon. Many factors providing innocent motivations for unprovoked fight are concentrated in high crime areas (ex. Flight. court reasons guns often accompany drugs • US v.a handgun. The SC reversed and held D's conviction. when officers had reasonable suspicion of drug activity. by its very nature. might gain control of a weapon. Sakyi . is not going about one's business. while the State was pressing for a rule that flight from police officers would always equal reasonable suspicion. • Reasonable suspicion to conduct a frisk will depend in part on the nature of the crime for which the citizen is suspected. Rideau . Merely separating the suspect from his effects during tehs top wouldn't provide sufficient protection to the . who police reasonably believe is dangerous.cursory inspection of pari of overalls located few feet away from suspect who appeared to be attempting to buarglize a house.high crime rate in Beaumont. • Opinion: they say that in a heavy narcotics trafficking area plus the unprovoked flight upon noticing the police would have caused suspicion. Person committing a violent crime can be frisked but a financial crime usually a person won't have a gun so less reasonable to frisk) Terry Frisks and Rising Violence • • The problem with Terry is that with more frisks occurring the rate of violence has increased. Limited Searches for Police Protection Under the Terry Doctrine • • Frisk Cannot be Used to Search for Evidence: • Minnesota v. The court held that the popo overstepped the bounds of the search for weapons allowed under Terry. Contact with the popo can itself be dangerous). the officers asked he backed away and got nervous. Long • Is it reasonable to assume that those suspected of drug dealing always present a risk of harm to the officer when stopped? • US v. (Ex. • Terry permits a limited examination of an area from which a person. Johnson . • Dissent: D was searched not b/c of anything he did but b/c of his status. • Dissent: the court was trying to press a rule where flight from police officers would never equal reasonable suspicion. the officers then did a pat down. • US v.
officers, since if the stop was terminated, the officers would have to return the property to the suspect. • US v. Wallen - cop could search compartment even though D was handcuffed during the stop b/c once released he could get back to the weapon • US v. Hunt - mere fact that driver met the officer outside his car with a license doesn't justify a protective search of the car. • Protective Searches of Persons Other than the Suspect • Officers are often confronted with wether they ca frisk persons other than the suspect. • Ybarra v. Illinois - refused to uphold frisk of a patronb of a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to a valid search warrant. • Ex. A person could be frisked after seeing him exit a suspected crack house and assume that they could frisk others since the residents in the crack house will be involved in the drug activity. • Inspecting Objecting During the Course of a Protective Frisk • An officer can conduct a pat down and feel an object and pull out the object and inspect only if it reasonably likely to be a weapon. • Protective Sweeps: Maryland v. Buie • Court considered the legality of a protective sweep, which it defined as a quick and limited search of a premises, incident to an arerest and conducted to protect the safety of pocky officers or others. • Found that a protective sweep could be justified by an officer's reasonable suspicions that the area swept harbored an individual posing danger to the officer or others. The sweep can last no longer than is necessary to dispel the reasonable suspicion of danger. Protective sweep could only be conducted for safety purposes and not destruction of property. • Protective Sweep Other than During an Arrest • If the officers area acting in the course of legal activity, they have reasonable suspicion to believe that a person in the area can obtain acesss to a weapon and use it on the officers, the officers are permitted to conduct a protective sweep for weapons. • 5. Brief and Limited Detentions: The Line Between "Stop" and "Arrest" • Often difficult to determine when an intrusion crosses ore from a stop to an arrest requiring probable cause. • Is it the length of the detention? What guidelines would you set to determine whether the officer has crossed the line and effectuated an arrest? • A. Forced Movement of the Suspect to a Custodial Area • Florida v. Royer - Royer was taken from public area of an airport to a sall room, where the officers sought and obtained Oryer's consent to a search of his luggage. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive. Means reasonably available to verify or dispel the officer's suspicion in a short period of time. • Some forced movements of a suspect might be justified during a Terry stop. Probable is required if the officer forces the suspect to move in order to further the investigation or to palc emore pressure on the suspect. • B. Forced Movement for Identification Purposes • Officers can force the suspect to move for purposes of safety and security. It is permissible to transport the suspect a short distance for purposes of identification by witnesses. • People v. Hicks - coercive movement to a crime scene fro purposes of identification was within the coffins of a permissible Terry stop. • C. Investigative Techniques That are Permissible Within the Confines of a Terry Stop • Some preliminary investigation, designed to clear up or develop resasonble suspicion, is permissible within the confines of a stop. Probable will be required if the officers are using the stop for some purpose beyond that whic justified the stop.
• Preliminary investigation of the suspect's identify, and questioning concerning the suspicious circumstances giving rise to the stop. • Ex. Request for identification, vehicle registration check, conduct a computer check to verify the accuracy of suspect's dubious proof of identification • Officers are allowed to detain suspects on reasonable suspicion in order to conduct a canine sniff or to conduct a prelim investigation of other suspicious circumstances • Criminalizing the Refusal to Provide Identification During a Terry Stop: • Hobble v. Sixth Judicial Court of Nevada - refused to provide identification when stopped for reasonable suspicion for domestic assault. Officer has a right to demand identification as part on an investigation during a Terry stop. • The reasonableness of a seizure is determined by balancing its intrusion on the individuals' 4th Amendment interests against its promotion of legitimate government interests. The request for identity has an immediate relation to the purpose, rational, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not bemuse a legal nullity. • D. Overly Intrusive Investigation Techniques • Some techniques are so intrusive or extensive as to require probable cause. • Ex. Is search for evidence. Probable is required before a suspect can be subjected to a series of demanding phsycai tests to determinew hetehr he is intoxicated. Roadside sobriety tests are Esc demanding maybe permissible under Terry. • • E. Investigation of Matters Other Than the Reasonable Suspicion that Supported the Stop: Stop after a Stop • Courts have held that a Terry stop must end when the reason for stop has come to an end. If the reasonable suspicions supporting the stop has been cleared up (ex. Identification checks out) or the person has been processed, then the stop is at an end and the suspect must be released. • Ex. A stop for traffic violation can't continue the stop in order to investigate for drug or gun crimes, in the absence of reasonable suspicion to support an independent inquiry. • Reasonable Suspicion as to another crime • In the course of a stop to investigate crime A, the officer obtains reasonable suspicion to investigate crime b, then the detention can be extended to investigate crime B even though the initial justification for the stop on longer exists. • Ex. Officer pulled over guy b/c they had suspicion he was driving drunk. Found evidence that he was drug dealer when they found out he wasn't drunk. • Consensual Encounters After A Stop has Ended • If the suspect is simply asked about another crime while the initial stop is ending, can there be a permissible encounter after a stop. • Ohio v. Rabbinate - D was stopped for speeding. Officer asked a question after giving D a verbal warning, if D had illegal contraband in the car. D answered no and the officer asked if he could search, D said yes and officer found drugs. Court said that officer did not have say that he was free to leave, and D voluntarily consented to the search. • F. Interrogations and Fingerprinting • Police can't detain a suspect and transport to the station house for questioning w/o probable cause, eve if the detention is not deemed to be an arrest under state law. • Forced transportation and interrogation of a suspect constitutes an arrest for which probable cause is required. • Fingerprinting • Unique nature of fingerprinting process, such detentions might, be found to comply with the 4th Amendment even though there is no probable cause in the traditional sense. Fingerprinting is less serious an intrusion on liberty than other searches.
• In this case, the fingerprinting did not comply with 4th Amendment b/c petition was unnecessarily required to undergo two fingerprinting sessions; and petitioners were not fingerprinted but also subjected to interrogation. • G. Time LImits on Terry Stops • SC rejected an absolute time limit for Terry Stops. • If an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. • Court rejected a hard and fast time limit, it was appropriate to examine whether the police diligently pursued a means of investigation at was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D. • H. Show of Force During a Terry Stop • Courts have routinely relied to uphold the use of handcuffs and guns where there is reasonable suspicion to believe that they are necessary to protect the officer form harm during the courts of a stop. • People v. Allen - handcuffed suspect who matched the description of a armed bank robber. • US v. Alexander - upholstering of guns to detain two ma suspected of purchasing drugs was allowed. • 6. Detention Of Property Under Terry • Some detentions of property could occur upon reasonable suspicion. • Detention of mail could at some point become an unreasonable search but found that the investigation was conducted promptly and diligently. • Officers were permitted to remove a package from mail stream to conduct a sniff and investigation other leads. • The difference between a stop of a person and a package is that package has no legitmate expectation of receiving it on a particular day: ex. No seizure when officers removed checked luggage to investigate and transported it to bus terminal and removal did not delay passenger's travel or impact his freedom of movement. • Unreasonable Detention: US v. Place • It is often necessary to seize property upon reasonable suspicion, while an investigation of criminal activity continues. If a person is traveling with is property, then a seize of that property intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. • The limitations applicable to investigative detentions of the person should define the permissible scope of the person's luggage on less than probable cause • Seizure of Property with No Deprivation of a LIberty Interest • LaFrance - a fedex package which was guaranteed to be delivered by 11 but got detained for drug suspicion for a couple more hours. The difference between LaFrance and Place is that Place was could not really go anywhere without his luggage, but LaFrance was at home and free to go wherever he wanted. • 7. Limited Searches for Evidence by Law Enforcement Officers Under Terry • Does Terry permit limited, cursory, inspections by law enforcement searching for evidence on the basis of reasonable suspicion rather than probable cause? • 8. Application of Terry Reasonableness Outside the Stop and Frisk Context • Terry analysis balance the nature of the individual interest at stake in a search and seizure against the interest of the government in investigating and preventing crime. • US v. Knights • The held a warrantless search of a probationer's home on reasonable suspicion by a police officer investigating criminal activity rather than probationary issues. • D had agreed that as a condition of probation, he would submit to searches by an probation officer or law enforcement officer at any time, w/ or w/o search warrant or reasonable suspicion. The Court did not deci whether the D's acceptance of the condition constituted a consent to search, but rather ruled that under the totality of circumstances, the search here was reasonably under the 4A b/c the D had a diminished expectation of privacy based on
The officers in the case searched a cabinet immediately after handcuffing Lucas and while removing him from the kitchen. The officers identified themselves and were allowed entrance to the house by the petitioner’s wife where they waited for the accused man to come home. Such a search prevents concealment or destruction of evidence by the arrestee and the arrestee from seizing a weapon to resist arrest or assist in escape. or rather by where the arrestee was at the time of arrest? • Grab area should be determined as of the time of the arrest.D was convited of bank robbery based in part uon evidence found in the search incident to arrest: Cops came into to arrest Lucas and as they were about to Lucas was going at a cabinet. The petitioner refused the request and the officers told the petitioner that a search could be conducted on “the basis of lawful arrest” and carried out the search. garage. and a small workshop. The cops checked the cabinet and found a gun. CA • Whether a condition of a parolee's release can so diminish or eliminate his reasonable expectation of privacy that a suspicion-less search by a law enforcement officer would be permissible under the 4th Amendment. • A warrantless search incident to an arrest may be valid. • Issues: Whether the warrantless search of an arrestees entire house can be constitutionally justified as incident to the arrest itself? • Holding and Analysis: at the time of the arrest. not the time of the search. etc. Spatial Limitations • Chimel v. and the gov has a heightened need to be search probationers' homes b/c they are less likely than the gen population to be law abiding. Officer's search of an area after the arrestee had been taken out of the room was permissible. Found a duffel bag in drunk. Upon arrival of the petitioner. cops took D out of cab and asked to identify it. • Creating Grab Areas • The arrest power rule is based on the need to prevent the arrestee from reaching evidence or a weapon.officers stopped a cab which D was in. Court sought to explain the rationel of the search incident to arrest exception. the police may conduct a full search of the person arrested and the areas within the person's immediate reach ("wing-span"). Lucas . over the defendants objection that they were admitted unconstitutionally. arrested him on narcotics charge. • US v. The cops found narcotics. • Application of Chimels' Case by Case Approach • US v. but got to him before he opened it. Search Incident to Arrest: The Arrest Power Rule A warrant less search incident to a valid arrest was an accepted practice at the time the BOR was adopted. • Timing of Grab Area Determination • Should the scope of the grab area be determined by where the arrestee is a@ the time of search.• C. • Court says that a parolee's expectation of privacy is substantially diminished b/c his very liberty is conditional. the arresting officers showed the arrest warrant to the accused and asked permission to “look around”. 1. Concluded that the arrest was a valid search incident to Lucas' arrest. State's interest in conducting suspicion-less search was found substantial b/c parolees are more likely to commit future criminal offenses. and to limit the scope of an incident search to the rational supporting the exception. b/c arresting agents are not alowed . The court held the search could not justified under the arrest power rule. Perea . and found various items which were admitted as evidence in court. CA • Facts: A warrant for the arrest of the petitioner was made for the burglary of a coin shop. • Suspicion-less Searches of Parolees Found Reasonable: Samson v. The officers searched the entire house including the attic. He said ht was transporting the bag for someone else. • • • the parole condition.
• 2. • Every arrest must be presumed to present a risk of danger to the arresting officer b/c ther is no way for an officer to predict reliably how a particular subject will react to arrest of the degree of potential danger. Officer searching an automobile that had been impounded and brought to the popo station after the arrest of its occupants. • While a search can precede the arrest. if it is necessary. to conduct a protective sweep of the place where the arrest is made. a search made at another place w/o warrant is simply not incident to the arrest.to stimulate circumstances warranting application of the incident to arrest exception merely by bringing the tie they wish to search into the area near the person arrested. • Courts dont' find it important that the search preceded the arrest rather than vice versa. Officer stopped the respondent and lawfully arrested him. Officer patted down the person of . Robinson • Any arrest sufficient . the officer's actions were proper • Arrest Leading to Exigent Circumstances • Arrest will create exigent circumstances due to the risk that the arrestee's friends family or criminal associations will destroy evidence. a search cannot be used to provide the probable cause necessary to make the arrest. • Ex. • Arrest Power Can be Invoked for Any Custodial Arrest and Can Cover Post-Arrest Movements • Washington v. No difference since police did not need the fuits of the search to establish probable cause. Allowed warrantless entry into garage. the police need not actually fear for their safety or believe that they will find evidence of a crime.police may conduct a search incident to arrest whenever they arrest a person and the arrest is constitutional (based on probable cause and with a valid warrant. • 3. Although the rationale for the search is to protect the arresting officer and to preserve evidence. Searches of the Person Incident to Arrest • US v. • Ex. Temporal Limitations • Sequence of Search and Arrest • Search incident to arrest usually takes place immediately after the search itself. Therefore. • Facts: An officer spotted thex` respondent driving the car and officer had probable cause that respondent was driving the car after the revocation of his license. as long as the suspect is under arrest. A reasonable belief that these third persons are aware of an interst of a confederate outside the prmises so that they might see a need to destroy evidence. • Removal from the Arrest Scene • The term incident to imlies that if the search is too removed form the arrest. it wil not qualify for the exception.absence of affirmative indication that an arrested person might have a weapon available or might attempt to escape doesn't diminish the arresting officer's authority to maintain custody over the arrested person and to conduct an automatic search for evidence and weapons within the grab area. and then asked to put on shoes and when the cops came into the trailer and seized illegal weapons. The ground was littered with broken glass. where lights were turned off shortly after drug seller was arrested in front of the garage • Police can show that contraband is or will be destroyed within a home if he can show • 1. Chrisman . Court says that when accused is under arrest. and then invoke Chrisman and follow the arrestee through the house? • The court relied on Chrisman when officer went into D's trailer with arrest warrant. A reasonable belief that third persons were inside a private dwelling • 2. if required). • Post-Arrest Movements Ordered by the Officer • Can officer require the arrestee to retrieve an item. • Protective Sweep After an Arrest • Police may.
It is entirely reasonable for the arresting officer to search for and seize and evidence on the arrestee’s person in order to prevent its concealment or destruction. does not involve breach of the peace. it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. He must conduct a limited frisk of the outer clothing and remove such weapons that he may. • Atwater v. • Holding and Analysis: No. It was a misdemeanor in Texas law to not belt children in and also not to be belted while driving and authorized any peace officer to arrest w/o warrant a person found committing a violation. The Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody. 2. • Note: If police have a probable cause to make an arrest.) a search may be made of the area within the control of the arrestee. put in jail. When an arrest is made. as a result of the limited frisk. The cop pulled her over and she didn't have license and registration and then got arrested. reasonably believe and ascertain that the suspect has in his possession. FL • The decision to arrest for a traffic offense and whether to conduct a full scale search were left to the officer on the scene. It is scarcely open to doubt that the danger an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. even if the crime is minor. The Supreme Court of the US explained that the justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him in to custody as it does on the need to preserve evidence on his person for later use at trial. • Custodial Arrests for Minor Offenses • BLACK LETTER LAW: • A police officer may arrest a person in a public place without a warrant of a misdemeanor committed in the presence of the officer. The court argues to establish readily . the officers safety might well be endangered. Furthermore. History has shown that states have acknowledged the right to arrest on a misdemeanor and recognized practice and there does not have be a breach of peace during the misdemeanor to be arrested.) a search may be made of the person of the arrestee by virtue of the lawful arrest. City of Lago Vista • Facts: Lady was in a car and did't have her children belted in. he may not ordinarily proceed to filly search the prisoner. and subsequently opening the package to reveal the heroin. such as a misdemeanor seatbelt violation punishable only by a fine. • Issues: Whether 4th Amendment forbids a warrantless arrest for a minor criminal offense.• • the respondent and felt a cigarette packet and he further searched the packet and found heroin capsules. and the arrest itself frustrated. A crime is committed in an officer's presence if the officer is aware of it through any of his senses. The Problem of Cars an Pretextual Stops • Discretion to Arrest: Note on Gustafson v.ondent was admitted in to evidence at the trial which resulted in his conviction in the District Court. This is an adequate basis for treating all custodial arrests alike for purposes of search justification. This general exception has historically been formulated into 2 distinct propositions: 1. the 4th Amend does not forbid a warrantless arrest. Issues: Was the heroin obtained from locating the cigarette package. the Court of Appeals determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discover of evidence of fruits. Otherwise. obtained in an unlawful way as to violate the defendant’s 4th rights? Holding and Analysis:A search incident to a lawful arrest is a traditional exception to the warrant requirement of the 4th. and is punishable only by fine.
• New York v. (being searched and put into jail with people who have committed violent crimes). • Issues: Does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? • Holding and Analysis: The majority used the standing set forth in Chimel. Can't concur in a rule that which deems a custodial arrest to be reasonable in every circumstance. (WANTS BRIGHT LINE RULE) The bright line rule for minor offenses and major offenses will leave unsatisfactory lines to require police officers to draw on a moment's notice and also clog the courts. The majority also reasoned that a police may examine the contents of any containers found within the passenger compartment. Custodial arrest exacts a toll on the individuals' liberty and privacy. If he is handcuffed at the time). • There was huge backlash from the community that WMATA ended its policy of arresting people for violating no-eating rule. the entire passenger compartment (including the glove compartment) is within a person's wingspan when that person is validly arrested in an automobile. the officer may search the area within the “immediate control” of the suspect. Furthermore. in Chimel. He searched each of the guys and then searched into the passenger compartment of the car and on the back seat found a jacket and opened the jacket up to find cocaine. • Robinson and Container's in the Arrestee's Grab Area • Robinson established an automatic right to search everything found on a person who has been subjected to a custodial arrest. so also will containers in it be within his reach. but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.held that search of a footlocker at the police station was not justified as a search incident to arrest b/c it occurred long after Chadwick was in custody. the court held that the police could not search all the drawers in an arrestee’s house simply because of the arrest. Judge said it was bad policy but not unreasonable. • Distinguished from Terry search: • Terry search only allows a pat-down for weapons or evidence of incriminating nature. for if the passenger compartment is within reach of the arrestee. Cop asked them to get out and arrested them. then patted them down. Moreover.• administrable rules so that cops aren't left guessing whether it is unconstitutional or not.g. • Dissent: Probable cause is surely a necessary condition for warrantless arrests but it isn't alone a sufficient condition. • Arrest for Minor Offenses after Atwater • Hedgepeth v.girl got arrested for eating at the metro which was a misdemeanor. • Despite this distinction. Washington Metro . Does that automatic search power extend to containers found in the arrestee's grab area? • US v. Belton • Facts: Cop pulled over speeding car and registration did not match up with the owner or occupants. which states that after an arrest. The Arrest Power Rule Applied to Automobiles • BLACK LETTER LAW: • The police may conduct a warrantless search of the passenger compartment of an automobile (including its contents) after arresting the occupants. 4. Cop smelled marijuana from the car. Chadwick . Search incident to arrest includes all clothing. even if he can longer reach into the interior compartment of the car when the search is undertaken (e. and the contents of any containers found on the person. By definition. many lower courts have applied the automatic arrest power rule of Robinson allowed to searches of briefcases and the lek in the arrestee's grab area. . pockets. it doesn’t matter if the containers were open or closed since the justification for the search is not that the arrestee has no privacy interest in the container. A fine should be given and no arrest unless the officer is able to point to specific and articulable facts that with rational inferences reasonably warrant intrusion.
• Problems After Belton: The Arrestee's Relationship to the Car • Whether Belton is applicable when a person is approached by police while outside his car? • BLACK LETTER LAW: • The interior of a car can be searched even if the suspect is outside of his car when he was arrested. • Hatchback problem: courts have generally held that generally compartment includes any area generally reachable without exiting the vehicle without regard to the likelihood in a particular case that such a reaching was possible . The cop parked his car and accosted P. stress. • Thornton v. Thornton also suggests a separate justification for an evidentiary search "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. • Belton rule has been extended to allow automatic search of a trunk that can be accessed through an armrest slot in the back seat. P had gone into a parking lot and had gotten out. P then said yes." Just b/c the arrestee exited his car before the officer initiated contact. • Problems After Belton: What is a Container? • Belton held that police can automatically open all loose containers in the passenger compartment. US • Facts: Cop pulled over guy and the license plats didn't match up with the make of the car. inside the windows wells of a vehicle. they feel that this is a slight departure from the ruling set forth in Chimel. He arrested P and then searched the vehicle and found a hand gun. 5. Furthermore.• However. from trunks. such as briefcases. The custodial arrest should be fluid and the danger to the police officer flows from the fact of the arrest and its attendant proximity. and the ability of the arrestee to gain access to a particular area or container. • Problems After Belton: What is the Passenger Compartment? • Belton distinguished passenger compartments. Cop was nervous so asked him if he had any anrcostics or weapons. they can search drawers within an arrestee’s reach due to the danger their contents might pose to the police. which can be automatically searched. the manner of restrained placed on the arrestee. • Examples: looking under the seats on the floor of the truck w/o ripping out upholstery. Cop asked him for his driver's license and told him about the unmatched license tags. Cop asked again if he had any narcotics as he had touched a object while patting him down. look under the hood. the Court established a bright line rule permitting full-blown searches when a person has been subjected to a custodial arrest. Cop asked to do a pat down and did it. even where a car is not involved. the stress is no less nor is the probability the arrestee will attempt plunge for a weapon in the car. Belton extended these bright lines principals to permit the .which means hatchbacks trunks are compartments. P said no. and uncertainty. • Lower courts have generally limited searches to areas in the passenger compartment that can be investigated without causing serious damage to the vehicle. • Issues: Whether Belton applies as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle? • Holding and Analysis: Yes. Factors would include relative number of poops and arrestees. locked glove compartment when it can be opened w/o damage to the vehicle. • Applicability of Belton to Searches of Other Places Other Than Vehicles • Most courts have applied the automatic opening rule of Belton to searches of items in the grab area. The P looked nervous and stumbled in his words. • Dissent: Dissenters argued that the court has not clarified how long after an arrest the officers may search the passenger’s compartment of the car. Court has to determine in Belton what "immediate control means. The Arrest Power Rule Where No Arrest Takes Place • In Robinson. Before the cop could pull him over.
after having been clocked driving 43 miles per hour on a road where the speed limit was 25. When a citation is issued. • Issues: Is the Iowa statute. there is less of a threat to the officer's safety than there is during an arrest. There was no need for other evidence. unconstitutional? • Holding and Analysis: Yes. and under the driver’ seat he found a bag of marijuana and a “pot pipe”. who the police have probable cause to believe has committed a civil traffic violation. the police may detain the suspect by asking for permission to search the car. • Is it possible that these investigatory powers of Belton. Iowa. However. the officer may stop the suspect's car. as long as the stop was lawful. Knowles was then arrested and charged with a violation of a state law dealing with controlled substances. also contend that police officers might decide which motorists to stop based on decidedly impermissible factors. such as the race of the . • BLACK LETTER LAW: • For traffic violations. • Issues: Is the temporary detention of a motorist. it does not by itself justify the often considerably greater intrusion attending a full field-type search. all the evidence necessary to prosecute that offense had been obtained. (driver's license or suspect's speeding). D. although under Iowa law he might have arrested him. The majority held that while the concern for officer safety in this context (traffic stop) may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car. abruptly turn w/o signaling. The officer then conducted a full search of the car. Petitioners argue that in the unique context of civil traffic regulations probable cause is not enough since the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible. The police officer issued a citation to Knowles. constitutes a seizure or persons within the meaning of this provision. there an be no search incident to arrest. who are both black. Iowa has a statute. Robinson search was the need to disarm the suspect in order to take him into custoy and the need to preserve evidence for later use at trial. and Terry as to minor crimes can be used to search or evidence of a more serious crime for which probable cause or reasonable does not exist? BLACK LETTER LAW • If a police officer has probable cause to believe that a traffic law has been violated. Moreover.for which the officeres lacks reasonable suspicions is being violated. which provided that issuance of a citation in lieu of an arrest “does not affect the officer’s authority to conduct an otherwise lawful search”. US • Facts: Police in a high drug area stopped D's car after observing D wait a long time at an intersection. and this is true even if the officer's ulterior motive is to investigate whether some other law .• • automatic search of the passenger compartment of a vehicle where an occupant of a car is subjected to custodial arrest. Robinson. Non-consensual automobile search conducted after the suspect was issued a citation was unconstitutional and contraband found during the search was excluded from evidence. even if only for a brief period and for a limited purpose. inconsistent with the 4th prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws? • Holding and Analysis: Temporary detention of individuals during the stop of an automobile by the police. • Knowles v. which authorizes police to conduct a full-blown search of an occupant’s vehicle. • Whren v. Iowa • Facts: Knowles was stopped in Newton. and the only evidence that needs to be preserved in such a case has already been found. Petitioners. even if state law gives the officer the option of arresting a suspect or issuing a citation. even if they don’t arrest him/her. Once Knowles was stopped for speeding and issued a citation. if the suspect is not arrested. and depart at an unreasonable speed. even after a warning or traffic citation has been given and the suspect's license has been return. Pretextual Stops and Arrests.
A mistake of fact does not automatically negate the validity of the stop. even though it essentially agreed with Ibarra's argument that the pretext was extraodirnary in this case. E. the officer need not be correct. they were DEA and looking to drug bust him but wanted to perform a traffic violation and then arrest him and search. • Reasonable Mistake of Fact. Ibarra was pulled over for speeding.A cop pulled suspect over for improper use of left turn signal. The making of a traffic stop out-of-uniform doesn’t remotely qualify as such an extreme practice. Choudhry . The dog found a large amount of cash and methamphetamines. Another officer was with the cop that pulled him over and had a sniffing dog. So it is with traffic stops and arrests after Whren. The constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause. Mistake of Law • In assesssing probable cause or reasonable suspicion. even if they could be practicably assessed by a judge. acting reasonably. The court’s replied that they flatly dismissed the idea that an ulterior motive might serve to stop the agents of their legal justification. • Parking Violations • The Whren rule has been extended to parking violations.• car’s occupants."Testilying" . Officers are justified in making stops if he had an objectively reasonable basis for believing that the vehicle was not in conformity with state's traffic laws. (pretextual stop and arrest). Testifying . the stop led to recovery of a gun and the Whren applies generally to al traffic violations. vary from place to place and from time to time. the 4th test for traffic stop should be not whether probable cause existed to justify the stop. Police enforcement practices. Therefore. Where probable cause has existed the only cases in which we have found it necessary actually to perform the “balancing” analysis involved searches or seizures conducted in an extraordinary manner (such as: seizure by a deadly force. To avoid this danger.why in Whren did the popo say that he saw the suspect with bags of • coke in his hand? Is the suspect stupid and not try to hide it? • Extraordinary Pretext • US v. Miller . The petitioner’s insist that the standard they have put forward—whether the officer’s conduct deviated materially from usual practices. The count contends that this approach is plainly and indisputably driven by subjective considerations. physical penetration of the body). • US v. and so is governed by the usual rule that probable cause to believe the law has been broken “outbalances” private interest in avoiding police contact. not the 4th. they say. Ibarra .officer stopped a car after it was parked illegally and was beginning to pull away. The court upheld the traffic stop and search. so that a reasonable officer in the same circumstances would not have made the stop for the reasons given—is an “objective” one. but rather whether a police officer. would have made the stop for the reason given. In reality. The court found that there was nothing in Texas traffic laws that prohibited motorists from having a turn signal on without turning or changing lanes. the traffic stop as illegal and the drugs were suppressed as the fruit of an unlawful stop. • Equal Protection Issues • It is near to impossible to prove equal protection rights had been violated when performing a Whren stop. unannounced entry into a home. The court explains that the petitioner’s principal basis—which applies equally to attempts to reach subjective intent through ostensibly objective means—is simply that the 4th’s concern with “reasonableness” allows certain actions to be taken in certain circumstances. • Probable Cause for Traffic Violation • A traffic stop can only be used as a pretext under Whren if the officer has reasonable cause to believe that the motorist has actually violated a traffic law. Plain View and Plain Touch Seizures .D argued that Whren should not be read to support an arrest and subsequent search where the officer's conduct amounted to "extraordinary" pretext. There is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. entry into a home without a warrant. • US v. whatever the subjective intent.
Moreover." • Issues: Whether warrantless seizures of evidence of crime in plain view is prohibited by the 4th Amend if the discovery of evidence was not inadvertent. would obviously invade the owner’s possessory interest. two additional conditions that must be satisfied to justify the warrantless seizure: First. They obtained a warrant for the proceeds. The seizures is permissible under the plain view exception despite the fact that the police knew the would likely find the weapons. He had probable cause. The search was authorized by the warrant. LaRault searched petitioner's residence. Thus. a . but also to believe that the weapons and handguns had been used in the crime he was investigating. it was immediately apparent to the officer that they constituted incriminating evidence. if the three rings and other items named in the warrant had been found at the outset—or if petitioner had them in his possession and had responded to the warrant by producing them immediately—no search for weapons could have taken place. • Horton v. A seizure of the article. LaRault testified that while he was searching for the rings. they discovered the weapons. two stun guns. During the course of the search. When they were discovered. The court held that the items seized from the petitioner’s home were discovered during a lawful search authorized by a valid warrant. not only must the item be in plain view. Pursuant to the warrant. the seizure was authorized by the “plain-view” doctrine. and a few items of clothing identified by the victim. however. he discovered the weapons in plain view and seized them. Second. its incriminating character must also be ‘immediately apparent’. Evidence may constitutionally be seized under the exception even if discovery is not inadvertent.38-caliber revolver. and second. legal or illegal. The problem with the plain view doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search. During the scope of their search for the proceeds. neither its observation nor its seizure would involve any invasion of privacy. according to Justice Stewart is that first. including three specifically described rings. a San Jose Coin Club advertising brochure. he also was interested in finding other evidence connecting petitioner to the robbery. that the discovery of evidence in plain view must be inadvertent. not only to obtain a warrant to search for the stolen property.• Plain View Exception: • Requirements: • Warrantless seizures by the police are justified when: • The police are legitimately on et premises: • They discover objects that they have probable cause to believe are contracts or fruits or instrumentalities of crime • They observe such evidence in plain view. but he did not find the stolen property. but the warrant issued by the Magistrate only authorized a search for the proceeds. but he or she must also have a lawful right to access to the object itself. it is not a necessary condition. The court went into Justice Stewarts interpretation of the “plain-view” doctrine by stating that if an article is already in plain view. Two limitations to the doctrine.police had probable cause to believe that D had committed an armed robbery and that the proceeds and weapons were likely to be found at his home. Specifically. the court required that to qualify under the plain view exception. • Probable Cause to Seize an Item in Plain View: . the seized evidence was not discovered "inadvertently. BLACK LETTER LAW: • • Formerly. a handcuff key. he seized an Uzi machine gun. however. • Facts: His affidavit for a search warrant referred to police reports that described the weapons as well as the proceeds. • Holding and Analysis: Even though inadvertence is a characteristic of most legitimate plain view seizures. the scope of the search was not enlarged in the slightest by the omission of any reference to the weapons in the warrant. California . Indeed. the evidence had to be inadvertently discovered. “plain view” alone is never enough to justify the warrantless seizure of evidence. not only must the officer be lawfully located in a place from which the object can be plainly seen. The court also held that in this case.
meaning the probable cause must exist w. contains the fruits or instrumentalities of crime. The court further ruled that the warrantless search of the car was also lawful because cars are treated differently from homes under the 4th Amendment due to the fact that cars are mobile. Witnesses saw a blue compact station wagon circling the station during the day and saw the same car speed off after the robbery. the officer may reach into the suspect's clothing and seize any item that based on its plain feel that the officer reasonably believes is a weaon or has probable cause to believe is contraband. they can search the car without a warrant. the officers had probable cause to believe that the defendant and his companions were the robbers. police found ammunition similar to that found in one of the guns taken from the station wagon. the officer feels baseball-size rock of crack. the greater . After the arrest the car was taken to the police station and searched without a warrant. • 3 The Progeny of Carroll • Chambers v. Distinguishing Caroll from Search Incident to Arrest • Officer must still have probable cause to believe that evidence will be found in the area of the car that she searches. After a warrant search of Ds home./o the necessity of a further search. For example. The service station attendant told the police that one of the men was wearing a green sweater and the other a trench coat. Exceptions to the Warrant Requirement • F. The car was stopped within the hour and the occupants were arrested. so long as probable cause to believe it contains evidence of criminal activity • 1. Such items are admissible as evidence against the suspect. United States where the court had held that if the officers have probable cause to believe that incriminating evidence is hidden inside the car. • Excluding from evidence cocaine that officer found during valid patdown b/c officer had to manipulate package to discern that it likely was drugs. • Plain Touch Doctrine • If a police officer conducts a patdown within the bounds of Terry. . Probable cause is necessary to justify a search that precedes a plain view seizure. Hicks . and that four men were in the car with one wearing a green sweater. Maroney • BLACK LETTER LAW: • If the police could have conducted a warrantless search of the vehicle when the vehicle was stopped.• Arizona v. The officer may seize it and it is admissible into evidence. The Carroll Doctrine • Before beginning any search at all under the automobile exception. Guns were found along with cards bearing the name of another service station attendant that was robbed two weeks ago. The court in the current case also stated that since the car was already seized. evidence of crime. • Issues: Whether a car that is taken to a police station after an arrest may be thoroughly searched with a warrant? • Holding and Analysis: The court ruled that the arrest was lawful because from the description of the witnesses. • All that is needed fora search incident to arrest is probable cause to arrest. if during a patdown. The court used Carroll v. or contraband.difficult issue is how closely the police may examine an object to decide whether it is subject to seizure. the police must have probable cause to believe that a moving vehicle.police may search an automobile w/o a warrant. or a vehicle that has temporarily stopped. (Search need not be contemporaneous to stop) • Facts: A service station was robbed by two men. the vehicle may be towed to the police station and searched at a later time. • The exigency of the automobile's mobility excuses the officers' failure to secure a warrant and justifies the warrantless search of the entire automobile (interior compartment and trunk) • 2. Probable cause must be readily apparent. AUTOMOBILES AND OTHER MOVABLE OBJECTS • Automobile exception . he can tell it is contraband.
two hours after Daza had picked up a package that they knew contained marijuana. Acevedo • Facts: In 1987 Officer Coleman of the Santa Ana received a call from a Federal Drug Agent in Hawaii about a large package containing marijuana they seized that was addressed to JR Daza who resided in Santa Ana. the Court refused to distinguish between a motor home and a regular home. • Reason for reduced privacy in cars: automobiles are subject to pervasive and continuing governmental regulation and controls • Cases have now held that there need not be exigent circumstances to justify a warrantless search but merely by relying not he diminished expectation of privacy rationale in Carney. and a search w/o warrant is permitted b/c the search of a car is no more intrusive than would be a seizures of the car pending a warrant. the police may not search the rest of the car unless they have probable to search that area as well. that they were going to allow the package to go to FedEx and that the Santa Ana PD should see who goes and picks it up and bust them. When D left Daza's apartment. the Court will not pass on the application of a vehicle to a motor home that is situated in a way or place that objectively indicates that it is being used a residence. he was carrying a bag approximately the size of one of the packages of marijuana. They opened both the trunk and the bag. Carney • Court explicitly holds that the car exception permits the warrantless search even if the vehicle is immobile. they had the right to search the car without obtaining a warrant. dispose of the shipping container in a dumpster and he was arrested leaving his apartment with 1 ½ pounds of weed on his person. a car can be seized pending the obtaining of a warrant. The police later saw Acevedo (D) enter and leave Daza's apartment. The police stopped the car. .harm was already done and now that the officers had probable cause to believe that there was evidence in the car. which contained marijuana as suspected by the police. Movable Containers . The drug agent told Officer Coleman. • California v. • A warrant is required only if the officers have a clear opportunity to obtain a warrant before seizing the car. • Less rigorous warrant requirements govern b/c the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. • 4. However.In and Out of Cars • Is there any way to distinguish mobile containers from automobiles on privacy grounds? • Court case held that mobility of a footlocker justified its seizure upon probable cause but a warrant was required to search the footlocker unless emergency circumstances rendered a seizure insufficient to protect the state interest. However. then the premise of Chambers is missing and the car exception should not apply. The conviction was affirmed. • Notes: a few courts have imposed a exigency requirement on warrantless automobile searches. D put the package in the trunk of his car and drove away. The officers observed Daza pick up the package of marijuana. • Mobile Containers in the Car • BLACK LETTER LAW: • Police can search w/o a warrant any container that they have probable cause to search once it is placed in a car. • Motor Homes • What happens when the automobile exception applied to the warrantless search of a motor home • In a case. • But if the original seizure itself could have been preceded by a warrant. • The Diminished Expectation of Privacy Rationale: CA v. • Due to a car's mobility.
it included areas where the police would have no reason to check. packages removed from a lawfully searched vehicle may be taken to a remote location and searched later w/o obtaining a warrant. Reversed. or to safeguard the police or public. G. Hayden . The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. the officer must have probable cause to believe that the persons or items to be searched or seized might be gone. the car would have been impounded anyway. Similarly. this doctrine was overbroad. Exigent Circumstances Generally • State must show that immediate action was reasonably necessary to prevent flight. such as luggage or a paper bag in the trunk. or compartment within a vehicle provided that there is probable cause to believe that the object is in the vehicle. The decision. • Warden v. or to protect against the loss of evidence. is limited to those areas where the police already had probable cause to search. • . however. it does not permit a search in the absence of probable cause. for plaintiff the state of California. Houghton • • BLACK LETTER LAW: • The search may extend to packages belonging to a passenger and is not limited to the driver's belongings. In this case. The Carroll doctrine permitted a warrantless search of an entire vehicle provided that the search was supported by probable cause. • Search of the passenger's purse upheld where officer noticed driver had syringe in his pocket. and once the police had possession. • Exception: minor offenses do not provide sufficient exigency to justify a warrant-less entry into a home. • Under the Court's bright line rule. Like a driver. or that some other danger would arise. Exigent Circumstances • 1. the vehicle may be towed to the police station and searched at a later time. they would have been allowed to search the whole car.• Issues: Does the 4th Amendment require the police to obtain a search warrant in order to search a container or package in a car when there is probable cause to support a search of the entire vehicle? • Holding and Analysis: A warrant is not required to search a container. • When the police have probable cause and attempt to make a warrantless arrest in a public place they may pursue the suspect into a private dwelling. • Reasoning: popo don't have time to do a formal warrant process and would allow the suspect to escape. and it will excuse a search warrant where a reach of an area msut be conducted in order to find and apprehend the suspect. before a warrant could be obtained.” • Delayed Search of Containers • If the police could have conducted a warrantless search of the vehicle when the vehicle was stopped. they will excuse an arrest warrant where one would otherwise be required. he can inspect the passengers' belongings found in the car that are capable of concealing the object of the search. Search of Passenger's Property: Wyoming v. a passenger has a reduced expectation of privacy in a car. package. (Page 177) “We therefore interpret Carroll as providing one rule to govern all automobile searches. This case resolved the inconsistency between cases involving searches of vehicles and searches of other movable containers. • Besides needing probable cause to search. if an officer has probable cause to search the car. • Exigent circumstances excuses the officer form having to obtain a magistrate's determination that probable cause exists. However. Hot Pursuit • In hot pursuit of a suspect. • 2.The scope of such a search may be as extensive as reasonably necessary to prevent the suspect from resisting or escaping.
. the Court cited Mincey v. • The question usually disputed in the cases is whether there was really an imminent risk of destruction of evidence under the facts presented. it was probably the only option that had even a chance of rising above the din. a minor. 547 • The court found that "the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Randolph. law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Also. • The Court ruled that the officers' warrantless entry into the home was justified under the emergency aid exception to getting a warrant because their entry "was plainly reasonable under the circumstances. police entered his home to obtain a blood sample. The Court ruled that: • . they may enter a home w/o a warrant. Accordingly.• Ex. MacDonald ... The Risk of Destruction of Evidence • If evidence will be destroyed in the time it takes to obtain a warrant. Evidence was excluded where D was suspected of drunk driving after his car was found into a ditch. 385.the officer’s announcement of his presence was at least equivalent to a knock on the screen door." The court found that after seeing the punch. When popo have info that a child is being abused and in imminent danger. he stepped into the kitchen and then announced himself again. • • 4. Mincey. • 3. • The case involved the arrest of four adults seen restraining a juvenile." • Dorman Factors: • The gravity of violent nature of the offense with which the suspect is to be charged • Whether the suspect is reasonably believed to be armed • A clear showing of probable cause to believe that the suspect committed the crime • Strong reason to believe that the suspect is in the premises being entered • A likelihood that the suspect will escape if not swiftly apprehended • The peaceful circumstances of the entry . who punched one of the adults who was restraining him. The Court has noted that a warrant would not be requied to search a container that is reasonably believed to contain explosives that might be used imminently • Public Safety and the Relevant of a Law Enforcement Objective: Brigham City v. there was no violation of the Fourth Amendment’s knock-and-announce rule.. one officer opened the screen door to the kitchen and yelled in "police. the Court ruled that once the officers announced their presence they were free to enter the house to deal with the tumult as it would be pointless to stand at the door waiting for a response while people brawled inside. which prompted the tumult to subside. at 392. S. or an adult. • US v. Stuart • The police may conduct a search without a warrant if they reasonably believe there is an immediate threat to the physical safety of themselves the public. then the warrant requirement is excused. 437 U.The Court ruled that police may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant is or is about to be seriously injured.. Under these circumstances." In ruling the officers' entry was supported by exigency. see also Georgia v. Arizona. Indeed. 393–394 (1978): • "[W]arrants are generally required to search a person’s home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.." . • The Court found that "the manner of the officers’ entry was also reasonable." Upon nobody hearing him. Police and Public Safety • A warrant is excused if the delay in obtaining a warrant would result in significant harm to the police or to members of the public. supra. • Ex. • Ex. and under Wisconsin law the offense was classified as a civl rather than criminal violation.. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.
9 plain dressed officers accompanied him. The Supreme Court disagrees. After this incident. However the police got into the apartment and a shots were fired.” (Terry v. and have a strong case of probable cause and ample time to obtain a warrant before the exigency occurs.minor offenses do not provide sufficient exigency to justify a warrantless-entry into a home • Evidence was excluded where D was suspected of drunk driving after his car was found in a ditch. police entered his home to obtain a blood sample. w/o regard to the actual risk of destruction of evidence • Could an offense be s minor that a warrant should be required regardless of the actual risk of destruction of evidence? • Murder Scene • Mincey v. opening drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search. • Seriousness factor raises two questions: • Could an offense be so serious that exigency should be deemed automatic. • Wasting a clear opportunity to obtain a warrant disentitles the officer from relying on subsequent exigent circumstances • Officers are not required to obtain a warrant at the very first moment that probable cause could be said to arise . When H returned to Mincey’s to pick up the drugs.they have the right to continue their reinvestigation and strengthen the sowing of probable cause 8. H slipped inside the house and a friend of Mincey’s attempted to keep the other officers out. A warrantless search must be “strictly circumscribed by the exigencies which justify its initiation. In Oct Officer H had allegedly arranged to purchase a quanity of heroin from Mincey. When the officers entered they found both Mincey and H hit. MacArthur • BLACK LETTER LAW: . Wisconsin . Impermissibly Created Exigency • Defendants argue that the police acted impermissibly in revealing their presence. H died later on. Arizona (1978) (Exigent Circumstance) • Facts: Mincey was convicted of murder. • Issue: Whether the search of Mincey’s apartment was constitutionally permissible or did the search fall into of the “well-delineated exceptions”? • Holding: Not constitutionally permissible. Ohio) and it simply cannot be contended that this search was justified by an emergency threatening life or limb. homicide crews searched and seized items from the apartment. Seizing Premises in the Absence of Exigent Circumstances • Prohibiting Entry While a Warrant is Being Obtained: Illinois v. then that opportunity to obtain the warrant precludes the later invocation of the exigent circumstances exception. Here. • 6. • Minor Offenses • Welsh v. the extent of the search here was certainly not warranted. assault and 3 counts of narcotics. all the people in Mincey’s apartment were accounted for and the 4-day search did not commence until all the bodies/people were removed. and thus manufactured the exigent circumstances. Prior Opportunity to Obtain a Warrant • If the police can foresee that an exigency would arise at a certain time in the future.• • The Seriousness of the Offense • The courts take into account not only the destructibility of the evidence but also the seriousness of the offense. The AZ Supreme Court has held that a “murder scene” is an exception to the warrant requirement of the 4th Amendment. H was hit. and under Wisconsin law the offense was classified as a cvil rather than criminal violation • 5. When the officer’s arrived. Further. • Officers should not be allowed to evade the warrant requirement by impermissibly creating exigent circumstances.
the SC has recognized that reasonableness does not require the police to obtain a search warrant before conducting every search.held that a students' search for cigs was ok b/c there were special needs to assure a safe and healthy environment had permitted to balance the state interest at stake in the search against the student's interest in privacy. and with any sense he would flush them down the drain before the police could get a warrant to enter and search. 4. This exception is justified b/c of the nature of the school environment . Searches and Seizures on the Basis of Reasonable Suspicion Rather Than Probable Cause. She and one officer sought a warrant while another stayed with ∆ on the porch. in violation of the 4th? • Holding and Analysis: We cannot say that the warrantless seizure was per se unreasonable. • Ex. to obtain the warrant. acting with diligence. Police imposed the restraint for a limited person of time. • Public school officials do no need a warrant or probable cause before conducting a search @ school. minimal intrusions. MacArthur • Facts: Officers accompany Tera McArthur to her trailer to keep the peace while she moved out. They need only reasonable grounds for he search. McArthur would destroy the drugs before they could return without a warrant. On finishing she told the police that her husband (∆) had pot stashed under the couch. • The Court has upheld civil-based searches of individuals in as long as there is reasonable suspicion rather than probable cause. • Reasonable grounds will exist if the school reasonably believes that the search will turn up evidence that the student has violate ad school rule or the law. 3. Suspicionless Searches of Persons on the Basis of "Special Needs" • . observed that she was angry enough to ask the police to accompany her. 2. It involves a plausible claim of specifically pressing or urgent law enforcement need (exigent circumstances). unlawful drugs. unless restrained. • A. refusing to let him reenter the trailer unaccompanied.• While all searches must be reasonable. They imposed a significantly less restrictive restraint. namely 2 hours. Police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. The police had good reason to fear that. Special Needs Searches • 3. as his wife reported. • Illinois v. • Concurrence: Police had probable cause to believe that he had illegal drugs stashed. Searches and Seizures of Individuals Pursuant to "Special Needs" • Used its special needs balancing analysis in a series of cases to uphold civil-based searches of individuals in the absence of a warrant and probable cause. diminished expectations of privacy. preventing him only from the entering the trailer unaccompanied. NJ v. They neither searched the trailer nor arrested him before obtaining a warrant. B. being limited in time and scope and avoiding significant intrusion into the home itself. This time person was no longer than reasonably necessary for the police. The police had probable cause to believe that McArthur’s trailer home contained evidence of a crime and contraband. saw that after leaving the trailer she had spoken with the police and noticed her walking off with one policeman while leaving the other outside to oberve the trailer. This justifies an exigent circumstance and the police could have entered his trailer promptly to make a lawful. The restriction at issue was reasonable: 1.public school officials have a duty to protect students both form other students and from themselves. or the like. TLO . warrantless search. namely. • Issues: Was keeping McArthur out of his home due to the information about illegal drugs being kept inside. The restraint at issue was tailored to that need. Once the warrant arrived the trailer was searched and pot was found. The scope of the search must be reasonably related to the circumstances that justified the search in the 1st place. with one officer guarding and supervising reentry into the house while the other officer left for 2 hours to obtain a search warrant. When faced with special law enforcement needs. They reasonable might have thought the he realized that his wife knew about the stash.
Drug Testing Cases After Chandler • • Solid Waste v. A GA law required candidates for a number of state offices to certify that within 30 days prior to qualifying for nomination or election they had taken a drug test and that the result was negative. monitored by an adult of the same sex as the student.there was little evidence of abuse. • Drug Testing of Pregnant Mothers: • Ferguson v. Railway Labor Executives • The Court relaxed the 4th Amend with regard to employee drug testing. it is unclear whether a program that allowed positive test results to be turned over the polic would be constitutional. Miller • Court indicated that the government's drug testing power is not w/o limit. the use of weapons. • Such testing furthers the school's safety interest in its students . • Drug-Testing of Employees: National Treasury Employees v. Drug Testing of Schoolchildren: • • Board of Education Pottawatomie County v. Under the program in Earls.e. Von aRab • The Court approved a requirement of the US Customs agency that anyone who applies for or seek promotions to a customs position connected with drug interdiction. of any student participating in any extracurricular activity and may suspect students who test positive. The court explained that ordinarly serches must be based on individualized suspicion absent special need. Urgent public interest) • The Court upheld a regulation requiring any railroad employee who is involved in an accident or suspected of violating certain rules to submit tot a blood or breach test for alcohol or drugs. Earles • OUTLINE: A school district may randomly conduct urinalysis drug testing.held that suspicion less searches of trash truck mechanics was not justified as special need. • Rationale: it is reasonable for the government to require testing here b/c the government's need to prevent promotion of drug users to positions that might endanger national borders or the safety of citizens. the testing was not likely to deter drug use. • The SC found this unreasonable under the 4A. • Privacy was diminished b/c they are in a n industry where participation is regulated pervasively to ensure safety. NO need special need was shown here: there was no indication that there is a suspicion of drug use by state officials. Moreover. City of Charleston . positive test results could not be turned over to the police. City of Albuquerque . the special needs requirement prevents suspicion less searches where the gov't has failed to show either it ha a real interest in testing. Elected official are not like the employees in Von-Raab. The Court's rational in these cases seems to be seems to be similar to its rationale for warrantless searches of highly regulated industries (i.• Drug-Testing of Employees: Skinner v.could support a school wide drug testing program (program not limited to students participating in extracurricular activities). who were working in drug interdiction. • Rationale: The railroad is a highly regulated industry and the government has a legitimate interests in taking all steps necessary to prevent hazardous conduct on the railroads. b/c the time of testing was selected by the candidate. had ready access to large quantities of drugs. and were not subject to the day-to-day scrutiny to which an elected official is subject. The reasoning is that even if there is virtually no privacy interst. Such testing constitutes a search when administered by the government or a government agent. • Distinguished from Von-Raab . but the Court upheld drug testing w/o warrant. or access to classified material be tested for drug use. • Drug Testing of Politicians: • Chandler v.
a state hospital. The court found that the intrusion into privacy was slight and was outweighed by the state's interest in preventing drunk driving. stop an automobile and detain the driver in order to check his license and registration • Permanent Checkpoints • Approved suspicionless stops at permanent checkpoints removed from the border. developed a program in which they would test pregnant women's urine for drug use and turn over positive tests to the police. Lidster • Unlike the roadblock in Edmond. suspicionless. a roadblock set up to ask drivers if they had any info regarding a deadly hit and run that occurred a week earlier. Checkpoints. • Use of drug-detecting dogs at a permanent fixed immigration checkpoint does not invalidate the checkpoint stops. • Temporary Checkpoints to Check DUI • Because of the gravity of drunk driving problem and the magnitude of the states' interest in getting drunk drivers off the road. the Crout considers the nature of the interests threatened and their connection to the particular law enforcement practices at issue. Here. and Suspicionless Seizures • Individual Stops Without Suspicion • Delaware v. The purpose of a drug interdiction checkpoint is to detect evidence of ordinary criminal wrongdoing. the centra purpose of the testing program is to generate evidence that may be used by law enforcement personnel to coerce women into drug programs. in cooperation with local police. In determining whether individualized suspicion is required for a seizure. the Court has also upheld the use of roadblocks to check the sobriety of all drivers passing by. was held to be constitutional. nonconsensual searches can't be justified on these grounds. A general interest in detecting crime does not justify a suspicion-less seizure and neither does the intractable nature of the drug problem. • Not on Edmond and Checkpoints AFter 9/11 • Checkpoints that are intrusive searches to prevent terrorism fall whiten the special needs checkpoint exception. 4. Roadblock. If an exception were carved out for such general law enforcement interests. • Suspicionless Checkpoints to Obtain Info about a Crime • Illinois v. Prouse .• • A state hospital's attempt to gather evidence of a patient's criminal conduct for law enforcement purposes constitutes an unreasonable search unless the patient consents.s the special need was divorced from the state's general interest in law enforcement. • Drug Checkpoints • City of Indianapolis v.was not appropriate here. • A search can usually be justified by balancing the government's interest in rooting out terrorism against the individual's diminished interest in privacy. The police were not seeking incriminating information about the drivers stopped. • The court held that the balancing test employeed in Skinner and Von Raab weighting the intrusion into the individual's privacy interest against the special needs that supported the drug testing programs in each case . but rather were asking for helpin . Edmond • Court held that checkpoints set up to search cars for illegal drugs are unconstitutional seizures.court held an officer could not in the absence of reasonable suspicion. • To stem the rise in cocaine use by pregnant women. The chickens are not related to highway safe. In those case. approximately where the roadblock was set up. Warrantless. drug interdiction was a permissible secondary purpose of the checkpoint. as in Sitz. The court emphasized the suspicionless stops were necessary to implement the state interest in regulating the flow of illegal aliens. • Drug Interdiction as Secondary Purpose • Checkpoint not invalidated by secondary purpose of drug interdiction. And the fixed checkpoint was minimally intrusive. nearly all suspicions-less seizures would be justified.
solving a crime. • Less Onerous Alternatives • Police could allow someone to drive it away. Opperman • Court held that warrantless. This is reasonable to protect the suspect's property. The police shouldn't have the discretion to search containers that they are unable to discern the contents from the outside. Wells • • Made it an all or nothing rule. • 3 legitimate state interests supported an inventory search • Protection of the police department from police property claims • Protection of the property interests of the owner • Protection of the police and public from dangerous items. Consent Searches. not the person who got arrested • Police could seal the car so that nothing could be taken • Both of these factors though are part of a less intrusive means analysis which the SC rejected in Bertine • Searches and Seizures that Search No Inventory Interest • Search that effectuates the state interest supporting an inventory search must be distinguished from an impoundment or search that effectuates none of the states interests • Ex. to discover dangerous objects. which helped to guarantee that the intrusion would be limited to scope necessary to carry out the care-taking function. or prying open the door panel of a car and found drugs 6. • If officer is acting without guidelines or if the officer disregards guidelines to obtain evidence. • When an arrested person is taken to the popo station. Border Searches. to protect the police against false claims of theft of the property. Roadblock unsuccessfully challenged by driver who was arrested for driving under the influence of alcohol after nearly running over one of the officers at the roadblock. • Discretion can be exercised in light of the nature of the search and the characteristics of the container itself • Problem of Pretext • The fact that the officer may have a pretextual motive is usually held irrelevant if the search itself is objectively reasonable. and they generally may open containers found to ensure against claims of lost. the pop may make a full inventory search of his person and all proerpty in his possession before he is jailed if such a search is done pursuant to established procedure. then the search cannot be justified as a inventory search. Lafayette • Inventory search at the police station of a shoulder bag belonging to a man arrested for disturbing the peace. • Property Carried by An Arrestee: Illinois v. and Wiretapping • Warrantless Suspicionless Searches: South Dakota v. • . suspicionless inventory search of a car impounded for a parking violation • Search conducted pursuant to standard place procedures. Border Searches • Border searches serve a special need beyond traditional criminal law enforcement. stolen. Searching an entire residence. or vandalized propert and to guard against danger. and to assist in identifying the suspect. • Limits on Police Discretion: Colorado v. Bertine • Inventory search of closed containers in impounded vehicles • Police may make inventory search of impounded automobiles pursuant to established procedure. • The two conditions that needed to be met: • If leaving the car would resent a real risk of damage to the car • If approval to leave the car could not be obtained from the owner Limits on Police Discretion: Florida v.
• Consequences of Refusing Content • Officer is not permitted to consider a refusal to permit consent as evidence of guilt that might lead to probable cause • Totality of Circumstances • Totality of circumstances must be examined to determine whether a person has voluntarily consented to a search • Six factors • Voluntaries of the D's custodial status • Presence of coerce police procedures • Extent and level of D's cooperation with the police • The D's awareness of his right to refuse consent • D's education and intelligence • D's belief that no evidence will be found • Threats of Action if Consent if Refused . Postal regulations prohibit the officials from reading any correspondence inside. including removal of vehicle's fuel tanks. Consent Searches • 1. This only a factor to be considered. personal searches at the border may require probable cause. Bustamonte • A search may be conducted w/o a warrant if voluntary and intelligent consent is given • Knowledge of right not required • Knowledge of the right to withhold consent is not a prerequisite to proving that intelligent consent was given. Police do not have to warn a person of the right to withhold consent.government's inherent authority to protect its territorial integrity against entry by unwanted persons andt heir effects is at its zenith at the international border. • Facts: Search of vehicle at border. Flores-Montano • BLACK LETTER: it is permissible for border officials to stop vehicles at reasonably located. Non-routine (body cavity or full strip search) • Searching in someone's prosthetic leg is a non-routine search Degree of Suspicion Require for a Non-Routine Border Intrusion • • Detention of traveler at the border is justified if customs reasonably suspect the traveling is smuggling contraband • Non-routine just requires reasonable suspicion but if a lot more intrusive.• • The need is to interest in protecting american borders to regulate the collection of duties and to prevent the intro of contraband into the country • Warrantless. • Searches of Persons at the Border • Routine v. Ramsey • Border search rules permit the opening of international mail at its place of entry into the country when postal authorities have reasonable cause to suspect the mail contains contraband. Voluntary Consent • Voluntariness distinguished from Waiver: Schneckloth v. even w/o reasonable suspicion that the vehicle contains illegal aliens. fixed (permanent) checkpoints to question occupants of the vehicles. was valid even w/o reasonable suspicion. Court suggested that non-routine. would need probable cause • Searches Away from the Border • If they are not close to the border or a permanent checkpoint then it will probably ruled unreasonable I. • Routine Border Searches • Routine border searches of personal belongings and effects may be conducted w/o regard to probable cause or reasonable suspicion • US v. • Rationale . Suspicion-less Search of International Mail: US v. A person has a lower expectation of privacy at the border than in the interior of the US.
• Actual Authority: US v Matock • Any person with an equal right to use or occupy the property may consent to a serch. • Apparent Authority: Illinois v. • Mistakes of Law • Government argued that officers riled on apparent authority of hotel desk clerk to consent to a search but rejected the argument by the Court • The Duty to Investigate • Police should inquire into the extent of the person's authorized access the person cant just use the theory of ignorance is bliss principle when they are unsure of authority to access. The person says sure. A search was upheld where the D's girlfriend consented to a search of his apartment. Then they can infer that the search of the car is similar to the pat down. The government has the burden of proving that the consanguine individual has joint access or control of the premises for most purposes. and always has keys to the trailer • Consent among family members • Courts generally allow parents that give consent to search the entire house even that of a minor • Unless it's clear the part of the premises is exclusively reserved for the child . but the officer could be justified in thinking otherwise if the consenter provides additional information indicating common authority . • Did the Person Consent? • The question is whether the person consented at all • Ex. Court held a search when search of bag of D when the cousin gave consent. Ivy . then yes • Reasonable officer would usually assume that aprons in the position of the consenter does have authority over the space. and the police erroneously but reasonably believe that she lived in the apt. Can't assume landlord has authority but if landlord asserts he stores stuff with the tenant. Asking the mailman • Reasonable officer would usually think that the consenter does not have authority.ex.since the driver has complete control of the tractor part of the rig. The consent of a driver of a rig falls into the 3rd category . and any evidence found may be used against the other owners or occupants. Rejects the notion that attitude toward police from whatever source can constitute a relevant subjective characteristic. but he meant sure I mind. The court will then look to see the past actions such as did the person consent to a pat down search.• Some cops threaten to get a warrant if they refuse consent • Some courts say that this doesn't match coerciveness under 4th • Consent invalid when police lied in telling suspect they were in the process of getting a search warrant • US v. It doesn't matter that the person in fact did not have such a right.cops said they would come back with warrant and would arrest if correct and send kid to foster care . When officer says can I search.the court said involuntary • Must a person who is stopped be told that he is free to leave? • Consent is not voluntary when a officer does a stop and informs the person that the stop has not ended and he was free to go • Subjective Attitudes Toward Authority • Court rejected subjective characteristics relevant to the validity of consent.regardless of what consenter says . • 2. • Ex. Third Party Consent • Courts have said it applies. • Three classes of situations: • Officer would never be justified in believing the consenter has authority .ex. Rodriguez • consent if valid as long as the police reasonably believe that the person giving the consent had an equal right to use or occupy the searched premises.
US Continuing the Trespass Analysis: Goldman v. Credibility determinations • Consent cases often come down to cop said victim said VI. US and Katez v. in which case. And the Outer Reaches of the 4A A. after consenting to search of luggage and person • 5. Court said the scope was beyond the scope of Blake's consent • The permissible scope of a search is tested objectively: consent to search extends to any object or container that a reasonable officer would understand within the scope of the consent • Consent may be revoked. Randolph • Limitation . independent of the withdrawal of consent itself . NY The Fed Statutory Response: TItle 3 and Its Amendments The Foreign Surveillance Act WIRETAPPING. Breaking open a locked briefcase. US and Lee v.cops asked if they could search his person. Scope of Consent • • Question about whether the consent extended to areas actually searched by the officer • Ex.• Spouses usually given consent for each other but not all the time. AND THE OTHER REACHES OF THE 4TH . US Misplaced Confidence: Hoffa v. the search must stop • Scope Defined by the Object of the Search: • Florida v Jimeno . Officer found a bag on the floorboard opened it and found coke. Undercover Agents Surreptitious Recording: Lopez v. B/c D did not palce any restrictions on his consent and knew that the officer was searching for drugs. US Rejecting the Trespass Rationale: Silverman v. US B. Randolph • Georgia v. Angry refusal to allow search of a coast.ex. • 3rd Party Counsel Where the D is Present and Objecting: Georgia v. UNDERCOVER ACTIVITY. slashing a tire when doing a search of a car • 4. it was reasonable for officer to assume that he could search the bag. Withdrawing Consent • Consent cannot be revoked retroactively after the officer has found incriminating info • Officer obtains voluntary consent to search a home and when is he about to the person revokes consent • Court said that revoking consent cannot be considered suspicious • Principle is fact sensitive though • Therefore if a person retracted consent could legitimately be considered suspicious. Undercover Activity. Wiretapping and Eavesdropping Statutes Procedural Protections Required: Berger v. Wiretapping. Constitutional Limitations on Electronic Surveillance Physical Trespass Required: Olmsted v. US Analysis of Eavesdropping and Undercover Informant Cases C.popo stopped D for traffic infraction. US Undercover Agents in the Home: Lewis v. US Limits on the Scope of the Undercover Activity: Gouled v. US v Blake . • Ambiguity Construed Against the Citizens • The ambiguity of search can be focused by the request of the citizen • Cetain situation in which the officers search will be beyond what could be reasonable contemplated by the consent • Likely that a search will be beyond the scope of consent if it involves destructive activity ex. D consented. Popo suspected drugs D was carrying coke and asked for permission to search the car. Consent given and then officer grabbed the crotch area.where part is present and objects • The police may not act on consent from one occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant 3.
court held not a violation of the 4th • Undercover agents in the home WIRETAPPING AND EAVESDROPPING STATUTE • Any form of electronic surveillance. as matters of national security can.does not need to show probable cause (just need to identify). and the identify of the person who conversation is to be intercepted • A description of other law enforcement techniques used to obtain the in sough and description of why they have failed our likely fail • Time period of the surveillance • Previous applications made for the same surveillance Foreign Intelligence Surveillance Act • Title 3 exempts interceptions of communications involving foreign intelligence. including wiretapping. actual physical trespass is not required for a search Warrant requirements • To be constitutionally valid. US . the types of communications to be intercepted.involved an IRS agent who having received an unsolicited bribe and having reported it to his superiors concealed a wire recorder on his person . that violates a reasonable expectation of privacy constitutes a search. • Interceptions of foreign intelligence are structured by Foreign iIntelligence Surveillance Act . a warrant authorizing any form of electric surveillance including wiretapping must satisfy the following requiements • Warrant must describe with particularity the conversation to be overheard • A showing of probable cause to believe that the specific crime has been or is beign committed must be made • Wiretapping must be for a limited period of time • Suspects who conversations are to be overheard must be named • Return must be made to court. showing what conversations were intercepted • Wiretapping must terminate when the desired info has been obtained • All electronic surveillances must comply with the requirements • If the surveillance satisfies the requirements of Title 3.t be accommodated by the strictures of the title 3. notice and inventory requirements are els stringent (target never be notified of surveillance if the AG says that national security interest in continuing the secrecy of the search) • Exigent circumstances allow for 72 hours • Patriot Act has greatly increased FISA searches and allowed evidence in • History: since 9/11 government has said that FISA is too strict and need to be allowed to search whenever it wants to protect the country from terroritsts • • • Remedies for Fourth Amendment Violations • A. Background of the Exclusionary Rule .• Constitutional limitations on electronic surveillance • Physical trespass required: • Interception of voice communications over telephone lines without entry into the premises was not within the coverage of the 4th • Use of a detectapone placed against an office wall to hear conversations next door did not violate the 4th b/c there was no trespass • Undercover agents • Lopez v. the police may covertly enter a placed for the purpose of installing electronic surveillance devices w/o prior judicial approval. a separate warrant authoring the covert entry is not required • Title 3 warrant requirements: • Identify to the applicant • Details of the offense • Particular descriptions to the facilities to be used.
• Notes: • Justices unanimously agreed that prohibition against unreasonable searches and seizures applied to the states. Therefore. But the Court in Wolf did not enforce the exclusionary rule upon the states. there is no sanction. an officer's finances may make the officer judgment. for P. U. Subsequently.• • • Under the rule. • Exclusionary Rule for the Federal Courts: • Weeks v. Colorado • LEGAL ISSUE: Does a conviction in a state court deny due process if evidence was submitted in the state proceeding that would not have been admitted in a federal court under the 4th Amendment? • HOLDING: In a prosecution for a state crime in a state court.) Without exclusion. • Violation of state law that is not itself a violation of the 4A will not result in the exclusion of evidence in fed court • Whether exclusion will occur in states court is a matter of state law • State standards as part of the 4th amend analysis . They disagreed as to whether the exclusionary rule was a constitutionally required remedy. The states offer private actions. Affirmed. The Supreme Court in Wolff v.proof anyway. The fact that states rely on other methods of protection that if consistently enforced are equally effective deterrents does not mean that those protections fall below minimum due process standards. This has resulted in a mere lip service to the 4th Amendment. the Court held that all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state courts. and have created other forms of protection for the right of privacy. Violations of State Law • Reasoning: federal law governs the admissibility of evidence in federal criminal action. Many states have found that exclusionary rule is the only effective way to protect the 4th Amendment rights. This holding was a judicial implication. District attorneys can't be counted on to police themselves. Appellant was convicted based on this evidence.) No. the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. • DISSENT: (Murphy. or even if there are sufficient damages. C. In a prosecution for a state crime in a state court. Colorado held that the protection of 4th Amendment applies to states through the 14th Amendment. evidence obtained by unconstitutional search or seizure generally is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt. J.S. but it's irrelevant that evidence might be inadmissible under state law. the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. it will be less likely to act in contravention against those rights. barred the use of evidence secured through an illegal search and seizure in federal prosecutions. • Mapp v. • Issue: Should the exclusionary rule apply to state police officers in state cases? • Holding and Analysis: Yes.allowed for exclusionary rule when evidence obtained violated the 4A in fed courts • Limited to cases where the illegal search was conducted by fed officers and the evidence was sought to be admitted in a fed criminal proceeding B. These are illusory remedies. The Exclusionary Rule and The States • Wolf v. J. and public opinion to protect individuals. • REASONING: (Frankfurter. • Rationale: if the government can't use evidence obtained form violating a person's constitutional rights. and was not derived from the requirements of the 4th Amendment or Congressional policy. internal police discipline. Weeks v. US . Ohio • Facts: Officer made a forced warrant less entry into appellant’s house and discovered some lewd books and pictures. Evidence Seized Illegally but Constitutionally • 1. A claim of trespass will carry with it insufficient damages to act as a true deterrent. 30 states rejected Weeks.
and Problems 1. • Federal law may say that seizers by state or local police officers must be conducted in accordance with the official procedures of the relevant state or local police department. Attacking the Warrant • If search was pursuant to a warrant. Evidence obtained in an inventory search of a car by state trooper was imperoly admitted. • Note: not invalidates if the affiant was ating in good faith. Challenging the Truthfulness of the Warrant Application: • • A D may challenge the validity of a search warrant by contesting any assertion in the affidavit upon which the warrant was issued. • State Ethical Standards • McDade Amendment . Only statements made by the affiant may be challenged. . even though obtained consistently with the Constitution? • McDade amendment doesn't authorize exclusion of evidence obtained in violation of state standards of professional responsibility. A search warrant is invalid if a D shows a substantial showing by preponderance of the evidence of all the following facts: • A false statement was included in the affidavit by the affiant • The false statement was necessary to find probable cause • The affiant knowingly or recklessly included the false statement • Truthfulness of the informant's statement is not directly subject to challenge. someone else's property. If a search was conducted after 10 and the search violated rule 41 since there was no showing of reasonable cause authorizing execution at other times. • • • There are a few instances in which state standards are effectively incorporated into Federal law. Violations of Fed Statute. • No after-acquired evidence can be considered. b/c the cop didn't follow state guidelines requiring him to ask the owner for consent before impounding the car. • Violation occurs only if the affiant knew the 3rd party was lying or if the affiant proceeded in reckless disregard for the truth. or there was evidence of an intentional or deliberate disregard. • Ex. Regulations. even before litigation has begun. the judge ruling for MOS will consider the sworn evidence presented to the magistrate who issued the warrant.• • D. • This motion is directed toward the use of the evidence not the return. Prohibit lawyers from contacting people who are represented by counsel. This does not preclude exclusion as the search would have happened either way. 2. The Exclusionary Rule in Detail: Procedures. • Ex. • Exclusion is not required unless the search wouldn't have otherwise occurred or wouldn't have been so abrasive if the RUle had been followed. Scope. and oterhwise not returnable. Procedures for Return of Property and Motion to Suppress • Motion to return evidence can be made • Motion to suppress evidence also exists even if evidence is contraband.fed prosecutor violates fed law if she violates a state rule of professional responsibility • Ex. 2. or he intentionally included the lie but it was not material to the finding of probable cause. If affiant believed the lie. • Should exclusion result if prosecutor violates a state no-contact rule and obtains evidence thereby. the affidavit is valid • Scienter Requirement • Generally not applicable to non=governmental informants. • Fed law on inventory searches by state officers is tat the must be conducted in accordance with relevant state police department. and Fed Rules of Criminal Procedure • Courts have been reluctant to impose exclusion as a judicial remedy for violation of fed statute or regulation.
• To have standing to challenge a search under the 4th. • Ex. the government must justify the search. Whether a person has standing is determined by case-by-case basis. testimony that leads to an unlikely conclusion will still hold sufficient for a search. his testimony may not be used against him at trial on the issue of guilt. lacked standing to challenge the admissibility. Upon searching the car. Challenging a Warrantless Search • If no warrant was obtained. Establishing a Violation of Personal 4th Amend Right • For exclusion. the D may wish to plead guilty on condition that he reserves the right to appeal the 4th Amend's ruling. it has to be impossible • Materiality Requirement • D must show that the deliberate falsehood or reckless disregard for the truth had a material effect on the issuance of the warrant. assessing the claimant's reasonable expectation of privacy under the totality of the circumstances. • State must prove by a preponderance of the evidence that an exception to the warrant requirement was satisfied • Ex. and he does testify. None of the passengers may challenge the search of the car. The Suppression Hearing and Judicial Review • • Government will have a privilege to protect the identify of the informants. A person who admits that the briefcase of heroin is his but can't be used in him • The person could be impeached if his testimony does not match though • Person can call a witness to testify at the suppression hearing but the court is not precluded from calling up the witness for testimony. D must establish his own personal rights were affected by the government's search or seizure. • Usually D denied appeal but allowed if the trial judge finds the issue is substantial and an immediate appeal would expedite the litigation. • Where case stands or falls on admitting the challenged evidence and the court has denied the MTS. a person must have a legitimate expectation of privacy. None of the passengers in the Driver's car claimed ownership of the guns or shells. • The search and seizure did not violate the Fourth Amendment because the petitioners did not have any possessory interest in the automobile or items seized and therefore. the SC has held that a person has standing to raise a 4th Amend claim anytime: • The person owned or had a right to possession of the place searched • The place searched was in fact the person's home whether or not the person owned or had a right to possession or • The person was an overnight guest of the owner of the place searched. • Limitations on Use of Suppressing Hearing testimony at Trial: • A defendant has a right to testify at a suppression hearing. • Rakas v. federal law permits immediate appellate review of the ruling subject to certain conditions. Police found a saw-off shotgun and some shells. • Appellate Review • If MOS is granted. • Judge can require disclosure of identity if that is necessary to decide whether the officer is a believable witness. Illinois • Police pulled driver's car over on probable cause to believe that it was involved in a robbery. • 5. Nevertheless. Government must prove voluntariness of consent by a preponderance of the evidence 4. • 3. • Suppressed evidence must be substantial proof of a fact material to the proceedings. • The gov't can't appeal if the D has been put in geography within the meaning of the Double Jeopardy clause • Appeal mustn't be taken for the purpose of delay.• Therefore. .
she turned to D and said take what's yours. The car and apt were searched. The Ds did not have sufficient expectation of privacy in the apt. and cocaine and a weapon were found. but is only a factor to be considered in an overall case by case inquiry. Presence in the Home of Another • Minnesota v. • D put drugs in his friend's purse. They were there only for a few hours and were not overnight guests. The friend was required to empty the content of her purse on the table. Determined that D spent little time in Lessee's apt and had come there solely to conduct a business transaction. Aerial overflight. An evaluation of the totality of the circumstances must be made to determine whether an individual had a reasonable expectation of privacy. the Ds had no 4th Amend protections in the apt and cannot challenge the search. Ownership of seized property does not necessarily confer standing • Ownership of the property seized is not necessarily enough for standing. D claimed standing based on his ownership of the property seized . D moved to suppress all evidence. considering the location of the property at the time of the search in addition to ownership of the property seized. When the drugs fell out. Carter • A popo peered through the closed window blind of apt and observed D bagging cocaine.• • • • • Police may have violated a legitimate expectant of privacy of someone and yet a particular defendant would not have the right to object if he had no legitimate expectation of privacy in the premises. They were there for business purposes rather than social purposes and there is lesser expectation of privacy in commercial settings. Passengers • For a car search: it's clear the owner of a car has standing to object to a search • What if the owner is not present? • What if the owner is in the car but somebody else is driving • Can a passenger ever have a protectible 4th amend interest in the car • Who can object to the seizure of the car. When D left the apt. even though he rents rather than owns the house. there will be no search at all and therefore. Had no ownership interest in the van and no control over it.the drugs. but that he didn't have the right to contest of the search in the van as he had no ownership interest.two guys got pulled over for possession of marijuana. Therefore. Drivers. the court will never reach the question of standing. The SC held that mere ownership of the seized property is not dispositive of a citizen's reasonable expectation of privacy. • The same would be true for those who rent or lease rather than own a car. He had taken toilet articles and change of clothing with him in the van. But what if the rental period has run out? . • Defendants can challenge the admissibility of the fruits of a search only if the search violated their own 4th Amend. • Ex. D took the drugs which were introduced against him in a drug possession prosecution. Abolition of Automatic Standing • The automatic standing doctrine was abolished • The notion of automatic standing was that possession of property gave a person an automatic right to complain about the search or seizures of that property. • Time Runs Out on the Rental • A person has the right to object o the search of a house where he lives. The passenger did a MTS b/c he had an expectation of privacy in the vehicle throughout the duration of the trip. that by officer peeking through is a illegal search. Carter . as distinct from the search? • US v. Court held that he had a right to challenge the seizures of his person that occurred when the car was stopped. Cars. the officer followed them to their car and arrested them.
The SC held that mere fact that they were involved in a conspiracy with D did not give them standing to challenge the search of the car. • Warrantless in-Home arrest is not casuall connected to a subsequent confession: • NY v.’” • Statements Tainted by Illegal Arrest • D was arrested w/o probable cause and brought to the popo station.Whether a Miranda warning sufficiently breaks the causal chain between an illegal arrest and a confession. Court held that confession must be excluded b/c it was the direct result of the unconstitutional arrest . • Intervening Act of Free wil. which violates the 4th Amend. • If no evidence is obtained. and confusion.• • US v. • Searches and Seizures that Produce No Evidence • Exclusionary rule is not applicable unless evidence is seized as a result of the search. Was in possession of the car. and at their trial. fright. Miranda warning is “an important factor . • Evidence Found After a Fourth Amend Violation • Fruit of the poisonous tree • In determining wether evidence is tainted fruit of the poisonous tree.if D had not been arrested unconstituiaonlly. The court found that expectation of privacy had not been expired for long. in determining whether the confession is obtained by exploitation of an illegal arrest. The SC held that first confession must be suppressed as the fruit of an unconstitutional arrest. Padilla . . sought to challenge the search of the car. D was released on his own recognizance after being unconstitutionally arrested. D told popo he was involved in drug distribution conspiracy with three other people.” In the matter at hand. • Dissociation of Property • If a person disassociates himself from certain property. • A defendant's intervening act of free will can break the causal chain between the confession and unconstitutional police conduct. The confession is admissible b/c it was not closely related to the illegal arrest.got arrested after rental period but only four days. The three others were eventually arrested. the first statement came “less than two hours” after his illegal arrest. then he loses standing to object to a search of that property. 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. the conspirator must show that his own expectation of privacy was violated.that a conspirator may be aggrieved by the intro of damaging evidence seized from a co-conspirator does not give the conspirator autonomic standing to challenge seizure of the evidence. • Ex. Limitations on Exclusion: The Requirement of Causation and the Exception of Attenuation • Exclusionary rule does not apply unless there is a substantial causal connection between the illegal activity and the evidence offered at trial. Harris . with “no intervening event of significance whatsoever. • Coconspirator "Standing" Rejected • US v.” The arrest “appear[ed to have] have been calculated to cause surprise. courts are to ask whether the evidence being objected to was obtained through exploitation of the unconstitutionally obtained evidence or instead by means sufficiently distinguishable to be purged of the primary taint.”whether. . Determining whether a casual link exists is often a difficult inquiry. Illinois . he could not have been in custody and probably would not have confessed. D confessed at home and then popo took him to the popo station and confessed again. . Popo informed D of his constitutional rights three times and permitted D to see two friends.police had probable cause to arrest D for murder. • Popo stopped the vehicle that D was driving and found cocaine. Deterrence is unjustified in the absence of that causal link. 6. but the 2nd confession is admissible b/c it is not a fruit of the unconstituiaonl arrest. He later return to the stationhouse to confess. there is nothing to exclude. • Brown v. granting establishment of the primary illegality [of the arrest]. They went to his home w/o a warrant and arrest him. Cooper .
Moreover. the . the cost of excluding relevant evidence b/c of claims that the rule was violated is too high when compared to the deterrence benefit that will be gained. and the actual testimony at trial • The purpose and flagrancy of the officials' misconduct. • Reason: the decision to testify is enough to break the causal connection between testimony and illegality • The willingness to testify is very likely. • Where officers violate the rule. The exclusionary remedy is too attenuated from the purposes of the knock and announce rule of protecting human life. with the presence of a valid search warrant.D voluntarily consented to a search of luggage. Hernandez . into a warehouse in South Boston. they observed Murray drive a truck and Carter drive a green camper. • Allows the intro of evidence discovered initially during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality. if not certain to break the chain of causation. • Reason: would have a serious social cost. the exclusionary rule will not be applied. US • Based on information received from informants. • Murray v. 7. 1983.m. • Consent as Breaking the Chain of Causation • Police argue that illegal search should not result in exclusion of evidence b/c the suspect voluntarily consented to the search that uncovered that evidence. the exclusionary rule is inapplicable. Independent Source • Evidence won't be excluded if it is obtained independently and w/o reliance on any illegal police activity. on April 6th. You can't find something and then immediately ask for consent b/c there is no break between the two events. Michigan • Exclusion is not an available remedy for violation of the knock and announce rule pertaining to the execution of a warrant.• • Insufficient Connection Between Knock and Announce Violation and Evidence Found in the Home • Hudson v. • Since the interests that were violated in the case having nothing to do with the seizure of evidence. disabled a witness from testifying about relevant and material facts • Exception: if the very close and direct link between the illegality and the witness's testimony. (Ex. • The manner and time differential between search and the voluntary consent must be reasonable. • The government argues that the voluntary consent broke the chain of causation! • Three factors to consider: • The temporal proximity of the illegal conduct and the consent • The presence of intervening circumstances • The purpose and flagrancy of the initial misconduct • Witness testimony after illegal arrests and searches • US v. intervening circumstances) Witness Testimony After Illegal Arrests and Searches • • Courts are reluctant to suppress the testimony form a live witness that is alleged to be the product of an illegal search or arrest. but this voluntary act was not sufficient to break the chain of causation from the officer's initial illegal search. When the petitioners drove the vehicles out about 20 minutes later. federal law enforcement agents had been surveilling petitioner Murray and several of his co-conspirators. • Factors to consider: • The degree of free will exercised by the witnesses • The role of the illegality in obtaining the testimony • The time elapsed between the illegal behavior • The decision to cooperate. At about 1:45 p.
• No requirement to show that the police acted in good faith. unconstitutional search. The Requirement of a "Legal Independent Source • Officers can only rely on an independent source if it is a legal source. the 2nd search must be totally independent of the 1st. However to avoid the exclusionary rule. the evidence is admissible. it was inevitable that they would have done so that the led to the inevitable discovery. Inevitable Discovery • Must be a showing that the illegally obtained evidence would have been discovered through legit means independent of the official misconduct. and did not rely on any observations made during that entry.m. Murray and Carter later turned over the truck and camper to other drivers who were in turn followed and ultimately arrested. • If police obtained the evidence from an independent source not connected to the unconstitutional seizure or search. kept the warehouse under surveillance. dark container. Improper inventory excused b/c a proper one would have been conducted under police guidelines • "We Would Have Obtained a Warrant" • Courts have said that inevitable is not probable cause alone • Probable cause + chain of events that would have led to a warrant independent of the search. Andrade . several of the agents converged on the South Boston warehouse and forced entry. Williams • Displayed that the government don't benefit from constitutional violations.DEA officers searched a bag and found cocaine. is sufficient to establish probable cause.• surveilling agents saw within the warehouse two individuals and a tractor-trailer rig bearing a long. the government can't inject misplaced concepts of standing to expand the independent source rule to excuse one illegal search with another. • Court must excise the offending info and evaluate whether what remains is sufficient to establish probable cause. • "Mixed Warrant Applications" • If the warrant app includes info obtained in the illegal search. . Can't simply hold that the police could have obtained a warrant. They found the warehouse unoccupied. When the warrant was issued at 10:40p. courts have taken the view that a search warrant procured in rapt on the basis of illegally obtained info will still support a search. • Inevitable Discovery Through a Hypothetical Inventory Search • US v. and that the inevitable discovery exception displays that the government actually obtains no advantage from illegal conduct if the government can prove that it would have obtained the evidence legally anyway. In applying for the warrant. • Establishing the Exception: Nix v. and did not reenter it until they had a search warrant. but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. approximately eight hours after the initial entry. considered alone. It was DEA procedure to catalogue the contents of bags and valid. 8. the agents did not mention the prior entry. • MAIN REQUIREMENTS: If the untainted info supporting the warrant. • Ex. Both vehicles were found to contain marijuana.. Search didn't occur an hour after the arrest. the evidence is admissible • If the police initially discover evidence during an unconstitutional search of a warehouse. They left without disturbing the bales. the agents immediately reentered the warehouse and seized 270 bales of marijuana and notebooks listing customers for whom the bales were destined. exceptions applies even if the police knew that their actions would be unlawful and deliberately chose the unlawful method. and the vehicles lawfully seized. but subsequently discover the same evidence during a valid search. After receiving this information. • Relationship between Independent Source and Standing. • Problem: why would an officer have to comply with the rules that still limit searches of cars or containers? Ex.
Sentencing Proceedings • • Courts have fond the exclusionary rule inapplicable to sentencing hearings • Great rewards stil exist for following accepted police procedures. government would be obtaining a reward . not on what they could possibly have • done • Ex. • Forfeiture Proceedings • If the exclusionary rule were inapplicable. Janis .the forfeiture of property . If evidence cant be used at trial. • Burden to show that that a s&s would have been conducted pursuant to standard procedures • Examine established procedures and standardized criteria to determine Courts must focus on what would have been done. A search conducted on a bag in a bus terminal. 9.illegally seized docs at D's place of business related to loansharking. It will be speculative when an officer contends that he could have used the dog to sniff out drugs and would have found the evidence when the dog was not used to sniff for bags but simply the undercarriage of buses Active Pursuit Requirement • • In order to invoke the inevitable discovery exception.deterrent effect of the ER attenuated when the punishment imposed upon the offending criminal enforcement officer is the removal of that evidence form a civil suit by or against a different sovereign • Civil Deportation Proceedings • Court says no to the ER w/ the application of civil deportation.for carrying out an illegal search or seizure. • Did not involve the forfeiture of contraband. • Grand Jury Proceedings • US v. • Reason: exclusion from the criminal prosecution's case is all that is necessary to deter 4A violations. • Civil Tax Proceedings • Illegally seized evidence can be used by fed tax officials in civil tax litigation. SC said no b/c ER doesn't apply to grand jury proceedings. . • US v. • Marginal deterrent effect of allowing a witness to raise a 4A claim before the grand jury was outweigh by the disruption of investigations that exclusion of evidence would produce. Parole Revocation Proceedings • • Parole revocation proceedings have always been flexible. and unlike a popo searching for evidence of a crime. Grand jury convened to investigate activities and then D said MTS. the police must be actively pursuing the independent lawful means at the time the illegal search is conducted. • Establishing Inevitability • Government must prove by a preponderance that the illegally obtained evidence inevitably would have been discovered by legal means. Use of Illegally Seized Evidence Outside the Criminal Trial Context • ER does not apply outside the context of a criminal trial. the government may never get to the sentencing proceeding due to the weakness of its case. a parole officer is less likely to deprive a parolee's constitutional right b/c the relationship between a parolee and parolee officer is more supervisory than adversarial.• • This would obviate the 4th Amendment altogether. • Reason: INS agents are geared specifically towards deportation and not criminal prosecutions • Social costs of exclusion would be much greater b/c exclusion could mean that a person who is committing a criminal offense at the time of the proceeding would be allowed to go free. • Grand jury witnesses may refuse to answer questions based on evidence obtained ion violation of federal wiretapping statute. Calandra .
D said not involved in the transportation of cocaine but in cross-examination his testimony was impeached by the introduction of the illegally seized shirt. The court of appeals affirmed. US . During trial.illegally searched a persons' bag and found a pocket ripped out of shirt and attached to another piece of clothing ad found cocaine. the court found that the warrant contained allegations of an untested informant and limited corroboration by the police. At trial. • The exclusionary rule does not apply when the police rely in good faith on: • Case law later change by another judicial opinion • A facially valid statute as it then exists even if the law is later declared unconstitutional or changed by court decision • A defective search warrant • Four exceptions to good faith reliance on a defective search warrant: • Affidavit on which the warrant was issued was so lacking in probable cause that no reasonable officer would have relied on it • Warrant is defective on its face (failure of the warrant to state with particularity the place to be searched) • The affiant lied to or misled the magistrate • The magistrate has wholly abandoned his judicial role Note on Massachusetts v. application of the rule would have no deterrent effects in such cases.• If the government seizes contraband. Havens • US v. they refused to accept a good faith exception to the exclusionary rule. there is no obligation to return it simply b/c it was illegally obtained. • Opening the Door on Cross-Examination: US v. • Ex. • Opening the Door on Direct-Examination: Walder v. Convicted felon not entitled to return of guns illegally seized from him • Child Protective Proceedings • Court held that exclusionary rule did not apply to child protective proceedings and that exclusion in child proceedings would impose a extraordinary cost. • Fear of impeachment of one's witnesses would likely discourage Ds from even presenting the testimony of others • 11. the court granted D's suppression motion because the warrant was not issued on probable cause. US • Walder v.ER could not be used as a license for perjury. The Supreme Court granted certiorari. • 10. • SC has carved out an exception to the exclusionary rule for evidence obtained in violation of the 4A where police officers act in the objectively reasonable brief that their conduct is not violating the D's rights. A search warrant was issued pursuant to that surveillance. Illinois • Refused to extend the impeachment exception to allow impeachment of defense witnesses w/ illegally obtained evidence • Reason: extending the impeachment exception would result in the loss of truthful testimony. Specifically. D was charged with violations of federal drug-trafficking laws. A large quantity of drugs were seized. • Illegally obtained evidence can be used to impeach the D's testimony no matter when it is elicited. Sheppard • . • Impeachment of Defense Witnesses: James v. Use of Illegally Obtained Evidence for Impeachment Purposes • Evidence may be used to impeach the D's credibility if he testifies on his own behalf at trial. Havens . Leon • Police officers initiated surveillance of Leon's (D) activities. Good Faith Reasonable Reliance on the Decisions of Magistrates and Others w/o a Stake in Criminal Investigations and Prosecutions • Court adopted a limited good faith exception for searches conduct pursuant to a warrant that is later found to be invalid. • US v. If police thought they were acting properly.
but at the time of the conduct reasonable minds could have differed about whether the officer was acting lawfully • Unreasonable mistakes where the officer violated clearly established law so that no reasonable argument could be made that the action was lawful. • Leon and Overboard Warrants • If all reasonable people would agree that the warrant is overboard. such as a mistake of fact • Unreasonable mistakes that in fact violate the 4A.officer was reasonable in relying on a warrant even though warrant based on tip from an anonymous caller with no strong corroboration . Johnson. • Three types of errors after Leon: • Reasonable mistakes that are not a violation of the 4A at all. • Maryland v.• A warrant to search for evidence of a homicide was issued on a form for a search of narcotics and did not incorporate the accompanying affidavit for the search warrant. Listing only the address of the apartment building is not sufficiently precise. the warrant must specify the apartment itself. • US v. then there is room for argument as to whether the officer's conduct was lawful. No evidence seized but P brought civil suit for violation of 4A. they may obtain a warrant to search the third floor apt. Ramirez . Gates. Dahlman . This is true even if during the course of the search they discover that there are in fact two pats on the third floor. Only D's address and prior conviction) • US v. However. Described house rather than alleged stockpile of firearms. • Leon. if polci reasonably believe there is only one apartment on the floor of the building. so searched a camping trailer.court said gates standard was satisfied • Reasonable minds could differ on whether gates standard is satisfied on such minimal corroboration • Cases where probable cause is lacking under Gates and court finds the officer was not objectively reasonable in relying on the warrant: • No corroboration of informant's assertions (i. Court said warrant was defective as to the cabin since it didn't meet the particularity requirement of 4A. Garrison • In cases where the warrant authorizes a search of only one apartment in a multi-apt structure.e. Carpenter .did a search of two lots of land. if the law was not clearly established at the time of the officer's action.property seized was not listed in the warrant.simply showed that the there was a simple nexus between marijuana field illegal activity and residence. cabin and the lots. But held admissible under good faith exception.good faith exception not allowed when seized women's clothing believed to be stolen room clothing warehouse and clothing store. then the officer can't reasonably rely upon it. Fuccillo . • "Reasonable reliance on a warrant that failed to include a description of the things to be seized? • Groh v. Exclusion and its Discontents • Reasonable reliance on unreasonable warrants • Officer is not liable unless he violated clearly established law. if the reasonable people don't agree whether the warrant is overboard. • Therefore. use the Leon standard and good faith exception to allow the evidence through. • US v. • Did not meet the particularity requirement • Petitioner himself prepared the invalid warrant and not the magistrate's assurance that the warrant contained an adequate description of the things seized was therefore valid . No probable cause but affidavit did not clearly lack a showing of probable cause as to location. and Warrants clearly lacking in probable cause • There is grey area between the Gates standard and a warrant that clearly lacks probable cause. Evidence seized pursuant to the technically invalid warrant was admissible. • US v.
to discourage improper seizure of evidence by the policy by rendering immorally seized evidence admissible . • Can this reasoning be applied to excuse illegal but good faith objectively reasonable searches w/o a warrant? • Court extended the GF exception to certain warrantless searches so that an officer can rely on his own invalid but reasonable assessment that his search or seizure is legal.officer relied on statute to do warrantless search but statute was found unconstitutional. Krull . Court held that ER can't apply when a popo applies the law incorrectly. • Other courts have not been hesitant to apply the ER to good faith errors by popo.officer stopped the D with a Baja CA license plate. The Good Faith Exception and Warrantless Searches • In Leon. US v. Exclusion of info that would have resulted in the magistrate refusing the warrant • Ex. • Essentially. exceptions should not apply when the officer acted in bad faith. • Reasonable Reliance on Legislative Acts: • Illinois v. false imprisonment. A magistrate not focusing on the language of the warrant but rather the manner in which Agent Hicks became suspicious of the package and ensuing investigation • Ex. • Good Faith Where the Officer is at Fault? • Good faith exception applies warrantless actions by police where an officer is not relying on any intermediary but only upon his or her own mistake judgment. erroneously indicated that there was a warrant outstanding against the D. • Clerical Errors and Reliance on Court Clerical Personnel: • ER does not require suppression of evidence gained during an arrest made on the basis of a computer report that b/c of an error made by court clerks. A magistrate signed the warrant w/o reading it and acted as a rubber stamp • Good faith exception won't apply if the person who issues the warrant is affiliated with law enforcement • Exclusion for Bad Faith Searches? • Argument that ER should apply when officer intended to violate the 4A even though the officer's conduct turned out to be reasonable. • Any of the remedies could be used as supplements to rather than replacements for suppression of evidence. Alternatives to Exclusion There are alternatives to exclusion and this was hot debated as to whether these are sufficient. • Ex. and the conduct is later found to be unconstitutional by the SC. 13. and trespass • Federal civil rights action is available when officer acting under color of law violate a constitutional right . • The purpose of the ER .• • • • Leon and Untrue or Omitted Statements in the Warrant Application • Exception to the GF exception if officer includes material info in the app that he knew was false or would have known was false except for his reckless disregard of the truth. court reasoned the magistrate rather than the officer made the error and magistrates can't be deterred by the ER. • Good Faith Reliance on Court Decisions • If officer relies upon on the law established by the the Court at the time of the conduct. • Limitations of Current Civil Damages Recovery • Several forms of damage actions are available such as false arrest.would not be furthered by applying the rule to errors made by court clerks. Omission of an informant having a long criminal history and indicia of unreliability • Leon and the Abdicating Magistrate • Leon standard will not apply when it is shown that a magistrate abdicated his neutral and detached role. Lopez-Soot . Officer was in error • in believing of vehicle code had been violated due to academy teaching. 12. • Ex.
• Obstacles such as governmental immunity exist in many states. Magistrates who issue invalid warrants are immune from suit • Many victims of illegal police practices are not very sympathetic plaintiffs. • Applicability to Non-Criminal Cases: • Boyd v. The Privilege against compelled self-incrimination • A. Fortified Civil Damages Remedy • Government should be made liable for illegal police behavior • Damage multipliers and punitive damages should be made available • Claims for small damage amounts should be entitled to reasonable attorney's fees and the possibly of class action consolidation • Procedural limitations on injunctive relief for 4A violations should be liberalized • Administrative channels should be established so that claims can be processed quickly and efficiently w/o need for a court action The Senate Proposal • Proposed legislation that would replace the ER with a fortified tort remedy have been thought of but no proposal has been enacted. . • 1. a P is left to attempt recovery form the offending officers. False arrest action. • Usually when sovereign immunity prevents actions against the government. The policies of the privilege against compelled self-incrimination. • Ex. The Need to examine policies • 5A provides that no person shall be compelled in any criminal case to be a witness against himself • B. and discipline also an alternative Self-Incrimination and Confessions • I. • Ex.involved forfeiture proceeding with respect to statute to appropriate any goods about which an owner had made false statements with intent to evade tax collection. training. P's prior convictions often can be used to impeach his credibly or show that probable cause existed • Respectable persons is probably least likely to be subject to an arbitrary arrest and harassment Second problem is proving and collecting damages adequate to cover the costs of the • suit. Scope of the Privilege • 1. who are often unable to pay. Trial court ordered to produce an invoice provided that failure would imply confession of guilt. Proceedings in which the Privilege Applies • Language of the 5A would seem to indicate the the privilege applies only to testimony sought to be compelled in a criminal case.• • • • • Two problem with it are winning the civil actions and collection on the judgment. Criminal Prosecutions • Criminal prosecution of offending officers is often suggested as the only real deterrent to police misconduct • A federal statute has been in existence that makes fed officers who participate in illegal searches guilty of misdemeanor and subject to substantial fines. US . Police Rulemaking and Administrative Solutions • Police regulation. • Many cases have not been brought • Reason: the lawyers need the cooperation of the department and so are reluctant to bring suit agains the cops • A criminal prosecution is also a over-deterrent. education. • Sc has consistently given the privilege a broader interpretation to include civil or criminal cases. It may lead to a officer second guessing himself in fast developing situations and effective law enforcement would be hindered and public safety endangered.
Relied not he fact that Illinois legislature would be civil in nature. even though foreign governments could use answers against D in foreign prosecutions. • Couselman v. Criminal cases • Two factors: if the case is "criminal" in nature and whether the compelled testimony might be used against the witness in a later criminal proceeding. • Question: What makes a criminal proceeding then? • Boyd says that potential penalties made a forfeiture proceeding criminal • Juvenile delinquency cases considered criminal although labeled civil.statute imposing civil penalty upon persons for discharging hazardous material into navigable waters was not quasi-criminal to invalidate the reporting requirement. C. then the court can refuse the right to 5A b/c only applies to criminal cases. LO Ward • • • • • • • • • • • • • • • • • • • • • • When incarceration is not available as a remedy. . But it's difficult to determine whether a particular pressure imposed by the government on a citizen rises to a level of compulsion 1.• Took an expansive view finding the proceeding was a criminal case but holding business records was like compelling a person to testify against himself. • These two decisions bind the states as well as the fed government • 2. LO Ward . or tell a lie and face prison for perjury. legislative determination that a proceeding is civil is more likely to be upheld Ex.question of whether grand jury witness could claim the privilege. Martinez .concern with foreign prosecution is beyond the scope of the 5A. US criminal statue of limitations had run. Hitchcock . No privilege for person who refused to answer question about wartime activities. Foreign Prosecutions A foreign prosecution is not considered a criminal case under the 5A. Compulsion for statements never admitted at a criminal trial When doe a violation occur? A violation does not occur until a person's compelled statements are used against him in a criminal case.interrogated by an officer. • The actual use of compelled testimony other than in a criminal case doesn't itself implicate the 5A. Court said it would look to the statutory construction. admitted to using heroin and taken an officer's gun during the incident. tell the truth and face prison. Illinois .proceedings under the Illinois Sexually Dangerous Persons Act were not criminal for self-incrimination purposes. If proceedings are purely civil in nature. whenever the testimony sought from a part might later be used in a criminal prosecution against that person. Civil Penalties: US v. Other state-imposed sanctions Concept of compulsion has been extended by SC well beyond its original grounding. so no 5A vioatlino b/c not introduced in a criminal proceeding. Use of Contempt Power Use of contempt power is a classic form of compulsion. he was never charged with a crime. US v. • Ex. or legislative. 2. 4. Gray jury investigation of criminal matter was a criminal case. Detention for Treatment: Allen v. Balsas . Chavez v. remain silent and face prison. administrate. Invoking the Privilege in a Civil Case to Prevent Sue of Statements in a Criminal Case: Privilege can be invoked in almost any proceeding whether judicial. D never got charged with a crime. 3. US v. What is compulsion? 5A protects against self-incrimination only if it is compelled by the government. presents the witness with a trilemma. 5A claims have even been asserted by a party in a bankruptcy case. • Language and analysis of the opinion suggested the privilege was available in any proceeding.
Court rejected P's arg. Robinson . to have any chance of clemency he would subject himself to an interview but open himself up to incrimination both on the current charge as well as on other charges. Judge said no as instruction would draw attention to the D had not testified. 3. which violates the 5A.court found no compulsion. The Benefit-Penalty Distinction and Penalties Imposed on Incarcerated Sex Offenders: Prison sexual abuse treatment program Mc-Kune v.the state may not take away state contracts or prohibit a person from holding a party office for exercising the privilege. US v. Argued that the clemency proceeding left him with a choice. when D disclosed concerning the offense. US v. The instruction was to dispel the compulsion that might otherwise exist due to negative inferences that could be drawn from the D's failure to testify.held that a prosecutor properly pointed out in closing arg that the D had an opportunity to testify Indirect References to the D's Failure to Testify Difficult to tell whether a prosecutor is commenting on the silence of the D or on the totality of the evidence in a case . Kentucky .forbids disbarment of a lawyer for invoking the privilege during a bar investigation. Self-Incrimination and Clemency Proceedings: Ohio Adult Parole Authority v. Under OH law.opposite of carter .• • • • • • • • • • • • • • • • • • • • • • • • • • • Lefkowitz v. including activities that constitute uncharged criminal offenses. Threat of Disbarment as Compulsion Speck v. Lile . The fact that the D didn't take the stand can't be used as info used against him.Penalty Distinction What if gov doesn't impose a penalty for silence but instead conditions a benefit on the waiver of the privilege? This distinction applied when D is required to provide incriminating info in order to receive a reduction in sentence.government employees subjected to firing for refusing to answer questions. SC held trial was required to give instruction upon request to minimize the danger that the jury will give evidentiary weight to eh D's failure to testify. where statements could be used agains the lawyer in a subsequent criminal prosecution.P asked judge to instruct jurors not to draw an adverse inference that Carter didn't testify.judge gave instruction to not draw a negative inference.considered the penalty/benefit provision Held a clemency proceeding in accordance with state law. The Function of Immunity National Federation of Fed Employees v. Klein . Turley . Woodard . in order to gain entry into a sexual abuse treatment program. SC held that clemency procedure didn't compel him to incriminate himself. the treat of firing or other economic sanctions may constitute compulsion. The conditioning a reduction of sentence on cooperation is a wholly different matter when the a person. Lakeside vow Oregon . and relevant statutes prevented use of the compelled statements in criminal prosecutions Essentially. Carter v. CA . A congregator could be denied public contracts on the basis of compelled testimony as long as the statements weren't used against him in a criminal case. Grifiin was concerned with adverse comment and the instruction in this case was anything but an adverse comment. The Benefit. Comment on the Invocation of the Privilege The Griffin Rule Griffin v. the P msut conduct a clemency hearing within 45 days of the scheduled date of execution. and this is so even if refusal results in transfer from a medium security facility to a max security facility.adverse comment to the jury by the judge or prosecutor about the D's election not to testify o institutes punishment for the invocation of silence. after D's appeal from his capital murder conviction had been denied. Cruz .the SC held that the 5A I not violated when a prisoner is required to disclose all sexual activities. Greenberg . But the protection of privilege extends only to criminal prosecutions. P objected.
not to incrimination from real or physical evidence. This is b/c Ta D may have a legitimate fear of adverse consequences form further testimony when the sentence has not yet been imposed. What is Protected 1. To Whom Doe the Privilege Belong? Privilege against self-incrimination is personal. Uts the 5A applies only ti testimony. Non-testimonial Evidence The seizure of real or physical evidence incriminating evidence form a D implicates no 5A rights. b/c the witness suffers no adverse consequences from the jury's drawing an adverse inference against him . Ex. However. McKenzie . Cops testified that he had slurred speech and court said this was physical evidence. • Courts have held that tests that merely measure physical capacity such as reflex. Corps and collective entities are treated differently than sole propiertorships E.D tried for taking liberties with a minor.the 5A does not protect an individual whose testimony will incriminate another. and submtit to taking of a photograph /o violating the privilege Testimonial Evidence and the Cruel Trilemma: PA v. balance do not compel testimony under Schmerber .• • • • • • • • • • • • • • • • • • • • • • • • • • • • • US v. Compulsion and the Exculpatory No Doctrine: Question of whether the 5A prohibited the criminal punishment of a person who lies to the government investigators during the course of an criminal investigation A doctrine in federal criminal law: an individual cannot be charged with making a false statement if the statement is a false denial of guilt made in response to a federal investigator's question D. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges that exist beyond the confines of the trial. California Testimonial v. Monaghan . the privilege bars the state only from securing compelled testimony. Fisher v. Muniz The determining factor between testimonial and non-testimonial is whether the witness faces the cruel trilemma in disclosing the evidence. Majority found that prosecutor did not impermissibly comment on the D's silence by arguing that the government's evidence was uncontradicted. the state may compel blood samples and voice and handwriting exemplars w/o violating the privileges against compulsory self-incrimination. • Drunk driver got taken for a custodial interrogation. Therefore.statement that evidence was uncontradicted is permissible. dexterity. State can require a D to produced a fingerprint. Non-testimonial evidence Schmerber v. Attorney may not claim the privilege on the ground that his testimony might incriminate his client. an attorney may assert the privilege for the benefit of a client Collective Entity Rule Courts will apply the 5A to sole propiertorships as they are viewed as individuals Courts won't apply the 5A to corps even if the corps are owned by a single person and operated by a single person.he is not a party. Adverse Inferences Against Non-Parties: There is usually no compulsion in the 5A sense. stand up in a lineup. US v. belonging only to the person who is himself incriminated by his own testimony. where D was not the only person who could rebut the prosecution's case and therefore would not naturally and necessarily remind the jury that the D refused to testify The rule would be impermissible if there was only one person who could have contradicted and it was the defendant Adverse Inferences at Sentencing: No waiver of subsequent 5A privilege: Neither a D's guilty plea nor her plea hearing functions as a waiver of the right to remain islet at sentencing. US . Adverse Inferences Drawn in Civil Cases: 5A does not forbid inferences against parties to civil actions when they refuse to testify in response to probative evidence proffered against them.
• In Fisher. • Demeanor evidence v. an attorney may assert the privilege for the benefit of a client. As long as the forms neither refer to a specific bank account nor require the suspect to acknowledge the existence of any account. there is no risk of perjury and no cruel trilemma is presented. Smith . • Jones v. Most courts say that private documents are provided protection b/c like regular documents they are not compelled testimony. • Otherwise. • • Psych Evaluations: • Estelle v. Court said no. US . and are authentic.cop interrogated a guy but at testimony did not state the content of the interrogation but the status such as the person's attitude or demeanor. • 5A protection for books and papers is very limited. • Crout found that the doctor based his testimony at least in part on the D's statements about the crime and omissions from his statements. Producing a document even one tending to incriminate does not involve testimonial self-incrimination and thus is generally outside the scpe of the privilege • D argued that compliance with a subpoena for accountat's records that he had given his attorney violated his 5A privilege against self-incrimination. the 5A does not protect an individual whose testimony will incriminate another. Documents and Other Info Existing Before Compulsion • In Boyd Court held that subpoena of one's private books and papers violates the 5A. • Private Papers • Courts are divided.held that business documents and records were not provided 5A protection even though it could be thought that the act of handing over documents admitted the records existed. To be testimonial. nothing that the papers had been voluntarily prepared and the subpoena had not compelled creation of the incriminating evidence. • Fisher v. the signing of the forms if not testimonial. when the content is incriminating. US • Privilege is personal and can be asserted by a party only when her testimony will incriminate herself. By producing docs individual admits that docs exist and has custody of docs and docs are described in the subpoena. Dugger . Basing conclusion on the details of the story that defendant told him • • Drawing an Adverse Inference as to Non-testimonial evidence: • Contempt is permissible b/c the suspect has no constitutional right to refuse production of nontestimonial evidence • 5A doesn't prevent the government from introducing evidence an alleged drunk driver's refusal to submit to a blood test even though he was not warned that his refusal might be used against him • • 2.Express of Implied Assertions of Fact: Doe v. Court held that privilege can't be asserted to prevent the government from obtaining evidence from 3rd parties since the incriminated person was not compelled to do anything. Court held this was not testimonial. b/c the signing itself does not relate a factual assertion or disclose info. but it leads to the problem of differentiating between business and private documents. US Muniz doesn't stand for the proposition that all compelled oral arguments are testimonial.5A doesn't prohibit the gov from compelling a suspect to sign consent forms directing foreign banks to release any records that they have on accounts controlled by the suspect. • Consent forms may be testimonial if there is an implied assertion that bank records actually exist. Doe .D interviewed by a gov psychiatrist who will testify at sentencing has err ight to be warned that what he says amy be used against him in the sentencing proceeding. • Application of the Fisher Analysis: • US v. Some courts says no. The SC concluded that the mere signing of consent forms is not testimonial. • Doe v. • When is the Act of Production Incriminating? • Act of producing documents to some extent testimonial. the communication must be express or implied assertion of fact that can be true or false. However. in his possession. The last admission is pertinent to • • .
that fact is incriminating about the existence of such records. Limited cases the admission of control creates an inference of affliction with another person or business that itself tends to incriminate. if an agent is significant agent. which is tantamount to using testimony. Testimony is personal but the docs are not personal property of agent but of corp Production of a Person is Response to a Court Order: Court relied on collective entity role to find the 5A inapplicable to act of prod of a child Required Records . except through individual agents of the entity. The custodian's act of production is not deemed a personal act. it doesn't go against the agent but it incriminates the corp Additionally. Ex. If you had to possess the docs. If the docs are entered into evidence. 5A only applies only if the compelled testimonial act of production could incarnate the person responding to the subpoena. Ex. If a corp has a second set of books and records. the fact that records exist can itself tend to incriminate.The Court held that the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity. it would implicate that you were intimately involved with the corps associated it as you couldn't posses the documents unless you were intimately involved in shady busines Act of production would be incriminating for admission of authenticity but still very weak. Hubbell. even if act of production would be incriminating. Collective entity rule: official records of an org that are held in a representative rather than in a personal capacity can't be the subject of personal privilege against self-incrimination. even though production of the papers of the papers might tend to incriminate the agent personally. they need to be confirmed to be authentic and sometimes they use the testimony of the D to confirm. US v. but rather an act of the corp Exception: does not involve agent at risk of being compelled to give incriminating oral testimony but assumes the risk of producing docs Since the agent is working for the corp. the government may not use them to prepare criminal charges against him. Producer of docs admits to custody as well. A simple admission is rarely incriminating. D charged with not reporting income could be incarnated by act of prod of W2 forms since producing them would have acknowledging received them. Broad Subpoenas After Hubbell Problem was that the subpoena served was so board that Hubbell had to make some witness-like decisions in deeming which documents complied with the subpoena. Immunity means that the government can't use the incriminating evidence in the act of production and can't use any fruits of the incriminating admissions. The government has substantial independent evidence that the records exist.• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • authenticating the docs. Production of Corp Docs: Business entity can't be compelled to produce incriminating evidence. the witness controls them. Ex. The production would show what those witness-like decisions were Rule: subpoena that seeks all docs within a category but fails to describe the docs with any specificity indicates the government needs the act of production to build its case. and the records produced are authentic Act of Production as a Roadmap for the Government: Government can still obtain documents by giving immunity to the party holding them. Usually. The Court also ruled that if the witness produces such documents. In certain cases. pursuant to a grant of immunity. it can be assumed the docs are authentics Difference between a corp agent's compelled testimony and compelled doc prod: Can refuse to testify as to the whereabouts of corp doc but no privilege to refuse their prod. foreclosing any defense of nonwilfulness.
it can punish those who do not keep the records. or might lead to evidence that would do so. Immunity If a witness is guaranteed that no criminal prosecution having anything to do with statements given to the gov will take place. then there is no possibly of incrimination and no right to refuse to testify because of the privilege. and punish those who truthfully admit criminal activity in the compelled records. Use and derivatise use . and as a practical matter it is self-executing.no transaction about which a witness testifies can be subject of a future prosecution against the witness. as long as the witness has cause of fear danger of prosecution of testifying.fobids the admission of any immunized testimony and any evidence from the testimony. F. if the gov requires the docs to be kept for a legitimate administrate prose that is not focused solely on those inherently suspect of criminal activity. Transactional immunity . Sixth Judicial D. it can punish those who keep false reoccurs. Is the Target Group Inherently Suspect? Statute made it a crime to knowingly fail to provide writen notice to an airline before shipping firearms. Tainted Witnesses: US v. A statute which requires the registration of sawed off shotguns when the Act provided that possession was itself a criminal offense and directed toward highly selective group inherently suspect of criminal activities. If a person says that testifying will tend to incriminate him. Ohio v. Procedural Aspects of Self-Incrimination Claims 1.• • • • • • • • • • • • • • • • • • • • • • • • • • • Even if doc are not voluntarily prepared. that the witness is mistaken. It was directed at the motoring public at large. North . it is an unusual case in which a court will disagree and compel that person to testify. Of Nevada Merely being required to furnish one's name after a Terry stop generally does not violate the 5A b/c the disclosure of one's name generally poses no danger of incrimination. Courts held that the statute is within the required records exception. Reiner . Limitations on the Exception Limitations will occur when the statutes to require records is directed toward a selective group inherently suspect of criminal activities Ex. Compelled Reporting of an Accident: CA v. Byers Court held that statute having to report an accident was not self-incrimination and essentially regulatory and noncriminal in nature.C. as a legitimate exercise of a regulatory activity. their contents as well as the act of prd will be unprotected by the 5A. The Risk of Incrimination and Denial of Guilt: Privilege may be asserted even if the witness claims innocence. the gov must show by a preponderance of the evidence that the evidence used in the prosecution is independent of the immunized testimony.when prosecuting a previously immunized witness. However. Required records exception: gov can require records to be kept. Compelled Self-Identification and Tendency to Incriminate Hiibel v. Determining the Risk of Incrimination Risk of incrimination is determined by whether it is PERFECTLY CLEAR. US . the court left open the possibility that it might recognize an exception to this rule if a case arose in which there is a substantial allegation that furnishing identify at the time of a stop would give the police a link in the chian of evidence needed to convict the individual of some crime. 2. The Constitutionality of Use Immunity: Kastigar v. and that the answers CAN'T POSSIBLY have such tendency to incriminate The threshold for tendency to incriminate is not high.babysitter who claimed to have had nothing to do with baby'd death could properly assert privlegel at baby's fatal injuries could have been caused by babysitter. from a careful consideration of all the circumstances in the case.
The gov had staed that it would not use the act of production as evidence but it did not obtain a formal grant of immunity. Informal Immunity? Sole proprietor coud rely on the privilege against self incfrimation and decline to produce records if the act of production would incriminate him. 3. Introduction Before a confession of guilt will be allowed to be admitted into evidence. The Due Process Cases Pre-Miranda Case: Circumstances Relevant to Involuntariness Takes into account the personal characteristics of the accused Ex. illiterate. Age.conversations obtained incriminated D. or obstruction of justice if the statement given was false or person lied. Ex. well-educated. the person can refuse to answer. This is b/c a D may have a legitimate fear of adverse consequences form further testimony when the sentence has not yet been imposed. the trial judge must find that it was voluntarily made. Confessions and Due Process A. If the person does answer. US . Takes into account the surrounding circumstances Ex. the privilege will be deemed waived and teha nswer can be used as evidence. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges that exist beyond the confines of the trial.taxlayer lost whatever privilege he might have had when he answered questions on a tax return. Court held not a violation b/c the affidavit upon which the wiretap authorization was based contained sufficine info to support a wiretap even without the immunized testimony. The test for voluntariness is whether the confession the product of an essentially free and unconstrained choice by its maker. It can be used to for subsequent prosecution for perjury. rather than invoking the privilege. mistreatment. Subsequent Standards Court upholds the right of a witness at a deposition in a civil case to claim the privilege against selfincrimination. Inevitable Discovery US v Gallo . denial of food or sleep Takes into account psychological influence Ex. rewards and inducements to confess Increasing Emphasis on Assistance of Counsel: The Importance of Spano v. NY • • • • • • • • • • • • • • • • • . II. Failure to Invoke the Privilege as a Waiver When a person is compelled by the gov to answer questions that might tend to incriminate that person in a subsequent criminal case. educational background.• • • • • • • • • • • • • • • • Court held that in a subsequent prosecution of an immunized witness. mental deficiency. Product of sustained pressure by the police through sustained interrogation. Court declined to extend the jurisdiction of courts to indluce prospective grants of use immunity in the absence of the formal request that the statute requires. Independent Source.can't be used for impeachment purposes. even though he had previously been grated use immunity in related in criminal proceedings. B. a thorough review of the record must be conducted to ensure that no immunized testimony was improperly used. threat of mob violence. Physical deprivation. Waiver of Privilege Determining the Scope of a Waiver Waiver of Privilege at a Guilty Plea Hearing? Neither a D's guilty plea nor her plea hearing functions as a waiver of the right to remain silent at sentencing. No violation where gov inevitably would have discovered the D's unlawful activity even if the immunized statements had never been made. Perjury Once immunity is given . Impeachment. Garner v. as required by the Due Process Clauses of the 4A and 5A. false statements. severe brutality.immunized testimony was used to obtain a wiretap .
. It left the counsel question for another day. the fruits of such a confession are admissible. at least when counsel previously had been retained. Modern Due Process Cases It's rare that a court fill find that a suspect confessed involuntarily. • Ex. The Continuing Relevant of Due Process Protection The totality of the circumstances voluntaries test is in some cases a suspect's only protection form police coercion. and the confession itself can be admitted if obtained under emergency circumstances. Confession made while dog was attacking held involuntary Miranda rights can be waived. his constiutilanl right to counsel beings. the majority did not reject the views expressed in the concurring opinions. • Ex. • If the D has made a valid waiver of Miranda rights. manufactured docs have a potential of indefinite life and facial appearance of authenticity and have a way of finding their way into a courtroom. The majority of the court analyzed the confession under the traditional voluntariness standard. while the right to be free from coercion can't. and then such a promise is not kept. Using false friend and game is up techniques were not sufficient to render a confession involuntary False Documentary Evidence Florida v.fabricated a scientific report for use as a ploy for interrogating the defendant. Fulminante Held that confession made by one prisoner to anther was coerced and thus involuntary under the 5A and 14A. for it would impede the suspect in making n informed choice as to whether he was better off confessing or clamming up • There is a due process concern when the officer makes a specific promise that the D's statement wil not be used against him or that he will et a specific benefit for confessing. Spain is a due process case. his only protection from police pressure is the due process involuntariness test. • Ex. • Cases permitting deceptive techniques under the voluntariness test are numerous. • Others have said involuntary is only where police tactics are such as would force an innocent person to confess. False Promises An officer makes a promise does not mean that it is necessarily a false promise • False promise of lenience would be an example of forbidden tactics. Cayward . • Exceptions to Miranda: • Miranda-defective confession can be used for impeachment. Confession involuntary where the officer. 6A does not apply unless the suspect has been formally charged.• • • • • • • • • • • • • • • • • Once a person is formally charged by an indictment or info. a long-time friend of the D. • Meaning threats and physical violence are prohibited but tricks would be permitted (false expressions of sympathy Deception and False Promises by the Police The presence of a direct or implied promise of help or leniency alone has not barred the admission of a confession and that promises do not require an analysis separate from than the totality of circumstances rule. Denial of involuntariness claims involve cases about a suspect with IQ of 90 promised treatment and interrogated for more than 7 hours • Some argue involuntary confession occurs when produced when a person with reasonable firmness would not resist. • Court said the resulting confession was involuntary • Unlike oral misrepresentations. Honest Promises v. it provided a doctrinal bridge for the Court to consider the applicability of other constitutional limitations on police efforts to obtain confessions. • Ex. promises to keep a conversation off the record and then does not do so Threats of Physical Violence: Arizona v.
Coercive Interrogation of Suspected Terrorists Is there a difference between coercion and torture? • Administration says that due process question would not arise b/c terrorists are enemy combatants and are not going to be tried in American criminal court in any case • Military Confessions Act of 2006: • Regulate the President's authority in waging the war on terror • Provides trial of enemy combatants by a military commission. • D approached by officer and stated he had murdered someone and wanted to talk about it • Express witness said that D motion to suppress his confessions that D was experiencing hallucinations which interfered with his ability to make free and rational choices • SC said police applied absolutely no pressure on D to confess to essential link between coercive activity of the state and a resulting confession by a D. • Act prohibits the use of torture and statements obtained through torture are inadmissible in the trail before the military commission • However. • A formalistic showing of compulsion by legal process or official punishment can't be essential. • Advantage: official pressure on a suspect required to trigger 5A protections is substantially less than the pressure required to trigger due process protections. Focus on Police Misconduct: Colorado v. confessions obtained through coercion are not necessarily prohibited or inadmissible • Depends n the totality of the circumstances redness the statement reliable and possesssing sufficient probative value • The interests of justice would be best served by admission • Interrogation methods don't equate to inhuman or degrading treatment • • • III. • Miranda v. Arizona . Arizona • Black Letter Rule: • Facts: • Holding and Analysis: Analysis of Miranda: • • 5A is violated by any pressure or penalty deliberately imposed for the purpose of getting a criminal suspect to speak.5A privilege against self-incrimination is applicable to the states through the 14A. Coercive plice activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause • Effect of Connelly: • Case where suspect's mother coerced him into confessing to the authorities. • Judge says that threw was credible threat of physical violence and D confessed due to his misplaced hope for protection from that violence. Connelly Due process focus is primarily on police misconduct rather than the suspect's state of mind. • Court declared the 5A is the touchstone for determining the admissibility of any statements obtained through custodial interrogation by government officials. But this protection would happen if Fulminante told him the truth. and that from every vantage point. Fifth Amendment Limitations on Confessions A. Informant suggested to D that he could protect him form other inmates who did not look kindly upon suspected child killers. once a suspect is isolated in police study and deprived of his freedom to leave.• • • • • P was friends with anoretic inmate who was a paid informant for the FBI and masqueraded as a crime figure. interrogation involves pressure that can dwarf those that . Court said no due process as Connelly made it clear that personal characteristics of the D are constitutionally irrelevant absent proof of police coercion. Miranda v.
Judicial Review and Education of the Public • Court was concerned with: • It as impossible to have a meaningful judicial review over police interrogation practices • Especially determining how coerce the interrogation really was since both parties have skewed views • If the warnings are not given. • Miranda Court rejected the suggestion that stationhouse interrogation is inherently coercive that a suspect must have a nonviable right to an attorney before being interrogated. US • Black Letter Rule • Facts: • Holding and Analysis: Note on Dickerson: Court was stuck to decide whether the Miranda safeguard are not constitutionally guaranteed thereby leaving the states to their own devices or reject all of the exceptions to Miranda that had been based on the premise that the Miranda safeguards are not constitutionally required. . D received no Miranda warning. Typical custodial police interrogation even if not brutally coercive in the due process sense will violate the 5A bar. Did Congress Overrule Miranda? • Congress passed statue which provides that confession shall be admissible in evidence if it is voluntarily given and that the issue of voluntariness shall be determined on the basis of al the circumstances surrounding the giving of the confession • Warnings and counsel are simply facts in the voluntariness analysis • Dickerson v.• • • • • • • • • • • were decisive in cases. then the confession still may not be voluntary. but at least courts have greater confidence in any confession that is obtained • No person should be deemed to confess voluntarily and intelligently unless she knows of the right to remain islet and the statement made can be used as evidence against her • Involves educating suspects about the real choice they have to make in the interrogation process Miranda Compromise Miranda does not put an end to confessions without counsel. Martinez • Held that a person's Miranda rights are not violated if his confession is never admitted at trial • Popo questioned D in a hospital after D dh been shot. though now as exceptions to a constitutional rule. Martinez • Chavez v. then a confession is tainted • If they are given. and yet all of the exceptions are retained. nor does it prohibit stationhouse interrogation. Alternatives to Miranda Some argue videotaping interrogations would be at least as effective as Miranda in preventing police coercion • Response is that it would be a useful complement but can't replace Miranda protections B. • Miranda safeguards are constitutionally required. Exceptions to the Miranda Rule of Exclusion Cases after Miranda found some exceptions by relying on the premise that the Miranda safeguards were merely prophylactic rules and not constitutionally required • After Dickerson. • Miranda does impose a warning requirement. Can a Miranda Violation Occur if the Statement was Never Admitted? Chavez v. that analysis can no longer stand. Charges were never brought and statements were never admitted against D. and made some incriminating confessions. but these warnings are given by a police office not a judicial officer • The decision whether to invoke is made by the suspect. in the same coercive atmosphere that a the Court was so concerned about. C.
D gave exculpatory story he had not told when Mirandize. Pre-Miranda Silence • Fletcher v. Sitting in his yard and his neighbor comes to joe and accuses him of stealing money form the neighbor's home and Joe said nothing. Ohio . • Post-Arrest. • Pre-Arrest Silence • Jenkins v. Fundamental unfairness present in Doyle not present in this case. • Held that after Miranda warnings are given.• These exceptions to the Miranda rule of exclusion are just that: exceptions to a constitutional rule.if a confession is involuntary. Anderson . Impeaching the Defendant-Witness • Harris v. Admitting the Fruits of a Miranda Violation • Fruits of a Miranda-defective confession are: . asked if made statements to the pop immediately after his arrest that partially contradicted his direct testimony • Statements were not admissible as substantive evidence under Miranda. • 1.charged with selling heroin to undercover poops and took Th. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings.court considered whether the use of pre-arrest silence for impeachment purposes was prohibited by Doyle • P stabbed and killed Redding and at his trial for murder contended that the killing was in self-defense • P was not apprehended until he turned himself into two weeks after the killing • On X-examination. it can't be admitted even for impeachment purposes • Reasoning: due process clause operates to prohibit the use of involuntary confessions for any purpose • Impeachment With Prior Silence • A D can be impeached with prior silence if a reasonable person would have spoken at the time about the matter later testified to • Ex. • 2. Joe can be impeached at trial with his silence if he alters testifies that he did not steal the money. and therefore that Harris' Miranda-defective statements could be admitted for the purposes of impeaching his credibility. prosecutor emphasized that Jenkins' two week waiting period was inconsistent with self-defense and he would have come forward right away rather than remaining at large • Court held impeachment by use of pre-arrest silence does not violate the 14A since no governmental action induced petitioner to remain silent. • Arrest by itself does not implicitly induce a suspect to remain silent • Ex. b/c Harris was not warned of his right to counsel prior to his in-custody integration • Court held that Miranda safeguards are not required by the Constitution. Arizona . the Due Process Clause prohibits the government from using the defendant's silence against him. as opposed to merely Miranda-defective. • On X-examination. NY . Stand in his own defense. • Court thought that cost of excluding Miranda defective confessions when offered for impeachment outweighed the benefit in deterring Miranda violations • Involuntary Confessions and Impeachment • Mincey v. The silence is considered inconsistent with the later testimony • What happens of the person receives Miranda warnings and remains silent • Doyle v.in the absence of the sort of affirmative assurances embodied in the Miranda warnings impeachment with post-arrest silence as constitutionally permissible. Allowing the use of post-arrest. pre-Miranda silence in the government's casein-chief b/c the D was under no compulsion to speak and therefore silence can be deemed an admission. Weir .
and the 2nd confession proceeded directly from the first • The bad faith of the interrogation officer is the controlling factor • The question is if the officer's failure to give Miranda warnings was a bad faith attempt to engage in a two-step interrogation process with midstream warnings • Physical Evidence Derived from Miranda-Defective Confessions • Court holds that even after Dickerson. its admission could not violate D's 5A rights under Miranda. Officers then asked D about the pistol and told him where to find it. physical evidence and a second confession by the suspect • Court severely limited the exclusionary impact of Miranda on the fruits of confessions relying on two propositions • The exclusion of the fruit of a poisonous tree is only justified if a constitutional right is violated • A violation of Miranda is not by itself a violation of the 5A • Courts in Dickerson held that fruits exception to Miranda retained validity even though the Miranda safeguards are constitutionally based • Leads to Witnesses: Michigan v. Elstad and Missouri v.• Investigative leads pursued as a result of the confession. Siebert • In Elstad. but D interrupted saying that he knew his rights. but was not told that he had the right to appointed counsel if he was indigent • Court found that failure to give the full Miranda warnings required exclusion of Tucker's confession but not Henderson's testimony (since D said that Henderson was with him at the crime and Henderson incriminated D) • Miranda warnings were procedural safeguards that were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination were protected. Court extended the Tucker analysis to a case where a 2nd confession resulted from a Miranda-defective confession. • Subsequent Confessions: ORegon v. and that because Patane's un-Mirandized testimony was not admitted at trial the Constitution (specifically the Fifth . They then arrested D and began to give him Miranda warnings. • Facts: Police went to D's house to arrest him for violating a temp restraining order. • Statements that are the fruit of Miranda-defective confession are not excluded • The costs of compliance by excluding fruits outweigh the benefits of deterence Missouri v. the exclusionary rule does not bar the physical fruits of the Miranda-defective confession • US v. They had ben tipped that he had a Glock. Patane • Black Letter Rule: If police fail to give Miranda warnings and during interrogation a suspect gives the police info that leads to non-testimonial evidence. it is unclear whether the non-testimonial evidence must be suppressed as the fruit of an unlawful interrogation. Justices held that suppression was not necessary. Miranda warnings were merely intended to prevent violations of the Constitution. Failure to give Miranda warnings is not itself a constitutional violation. D was indicted for possession of a firearm • Holding and Analysis: B/c the pistol is non-testimonial in nature. Tuckers • Case where D was arrested for rape • Before interrogation he was advised of his right to remain silent and his right to counsel. Siebert • • Black Letter Rule: • Facts: • Holding and Analysis: • Questions after Siebert: • Confession made after a Miranda-defective confession will be admissible unless the officers were in bad faith in not giving the warnings before the first confession.
must be addressed to the public safety risk. • Court held that the statement was properly admitted under the public safety exception. He got patted down and then cop asked where the gun was as he had a shoulder holster. Carrillo . He was not in custodial situation when he talked with the agents in his home. Before beginning the search. and that an unwarned confession obtained under such circumstances is admissible despite Miranda. to be permissible. They found the guy with the description the woman gave. • Court held it was a custodial interrogation but the public safety that that the accomplice might use it or a employee of the store might use it • The Scope of Public Safety Exception • US v.• Amendment's protection against self-incrimination) had not been violatedPhysical evidence obtained from un-Mirandized statements. • Categorial Application of the Public Safety Exception • US v. and the admissibly of the confession depends on whether it was given voluntarily under the totality of the circumstances. but it would not have been within the exception to ask whether he had committed the crime that he was arrested for. Open Questions After Miranda • 1. • Ex. When IRS agents are invited in to talk with D at his dining table to discuss fed income tax returns with regard to criminal tax fraud. Mobley • Court found that officer's question concerning the location of a gun in a house was not within the public safety exception • Officers had already conducted a protect sweep and found no other persons were present • Court found no immediate need to ask abut a gun and declared that there is nothing that separate these facts from an ordinary arrest scenario • Questions without warnings. CA • The officer's subjective and undisclosed view concerning whether the person being interrogated is suspect is irrelevant to the assessment whether the person is in custody . D said I don't use them I sell them. He said over there and found a gun. were constitutionally admissible • 3. • The question stemmed from an objectively reasonable need to protect himself from immediate danger in order to avoid contact with syringes and toxic substances D. An Emergency Exception • New York v.D was arrested after narcotics transaction and transported to detention facility • Officer decided to search D. • Objective Test: Stansbury v. • Women came to cops and said she got raped. as long as those statements were not forced by police. • Officer testified that in past searches he had been poked by needles and suffered headaches from contact with illegal drugs. Quarrels • Court held that overriding considerations of public safety can justify an officer's failure to provide Miranda warnings. • Arrest is Custody • The test for custody is whether a prison is deprived of his freedom in any significant way • A suspect is in custody for purposes of Miranda when place under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. officer asked D if e had nay drugs. What is Custody? • If the D who confesses is not in custody. Miranda does not apply. • It is permissible to ask about the location of the gun.
Murphy • Privilege against self-incrimination was not violated when a probation officer called D. a probationer to her office to question about a rape and murder of a teenage girl. Alvardo • Court had to decide whether suspect's youth was a relevant factor in determing whether he was in custody while being interrogated ina police station • Court held that youth was irrelevant in determining whether hies in custody • When police know a suspect's age. a popo's undisclosed assessment is that the person being questions is not a suspect as one can't expect the person under interrogation to probe the officer's innermost thoughts can't be used Personal Characteristic Irrelevant: Yarborough v. D confessed. • Ex. Prisoners in Custody • D was interrogated in jail by IRS agents about his alleged tax evasion • Although the D was in jail for reasons unrelated to the tax investigation. Prisoner was in custody for Miranda purposes when he was taken from his cell to an office and interrogated. D then confessed after being asked about a burglary and that his fingerprints were found at the scene • Court extended Mathiason to find that the suspect was not in custody when he agreed to accompany police officers down to the station for questioning. Mathiason • Court ruled that an individual questioned at a police station is not necessarily in custody • An office wanted to talk over the phone with D that he wanted to discuss something with him and asked iff they could meet somewhere • D was asked to come to police house and no miranda warnings were not given. b/c the officer can ask only a moderate number of questions to determine the identity to try obtain info confirming or dispelling the officer's suspicions. it may be difficult for them to ascertain what bearing it has on the likelihood that the suspect would feel free to leave. Meetings with a Probation Officer: • Minnesota v. questioning is limited.• • • • • • • Therefore. however Miranda will apply • Ex. he was still in custody and failure to give him his Miranda warnings violated his constitutional rights • Prisoners are alwaysi n custody for Miranda purposes • Rather the queston is whether the prison official's conduct would cause a reasonable person to believe his freedom of movement had been further diminished. • Court held that Miranda did not require the officer to warn Murphy of his rights prior to asking questions about crime he might have committed Terry Stops: • Berkemer v. • If the stop escalates to an arrest. that the suspect was free to leave or request the officers to do so. and leaving the interrogation would have constituted a violation of prison rules Interrogation at the Police Station: • Oregon v. McCarty • Terry stops are not custodial for Miranda purposes • Terry stops are tpically for brief duration . Limited interrogation at customs checkpoints is not custodial within the meaning of Mirnda Summary on Custody: Relevant Factors • Six factors: • Whether the suspect was informed at the time of questioning that the questioning was voluntary. or that the suspect was not considered under arrest • Whether the suspect possessed unrestrained freedom of movement during questioning • Whether the suspect initiated contact with authorities or voluntarily acquiesed to official request to respond to questions .
they did not direct their comments at the D . Mauro . rather.found a large quantities of drugs in a bedroom • Calisto placed under arest and invoked his right of silence. • Volunteered statements or threshold questions are not barred by the fact that they were made w/o Miranda warnings • Rhode Island v. Innis • Black Letter Rule: D's statement is subject to Miranda only if it sign in response to interrogation. Mauro was not subjected to compelling influences and volunteered statements.• Whether strong arm tactics or deceptive stratagems were employed during questioning • Whether the atmosphere of the questioning was police dominated • Whether the suspect was placed under arrest at the termination of the questioning. • Confronting the Suspect with Incriminating Evidence • Edwards v. The questions were not directed at D. • Court found that D's statement was not an interrogation that it was not directed at Calisto. officers locked her door. the inquiry is whether the police should know that their actions are reasonably likely to elicit an incriminating repesonse from the suspect. Calisto . Volunteered statement are not covered.received a telephone call stating that a man had entered a store claiming to have killed his son. There was nothing to suggest the officers knew that D was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped people. Interrogation. • GENERAL PRINCIPLE: merely informing a suspect that he is under arrest is not enough to constitute interrogation. • Facts: D was arrested for a murder which took place near a school for handicapped children. • Appeals to the Welfare of Others as Interrogation? • US v. • Officers do not interrogate a suspect simply by hoping that he will incriminate himself. ordered to respond in English.Edwards had been interrogated when officers played for him a recorded statement of P's associate that implicated P in the crime • Ex. Popo gave two sets of Miranda warnings. While transporting D to the popo station. whoever is not limited to any particular type of questioning. and she was interrogated for about an hour about illegal drug sales. D said to wifey that his wifey had tried to stop him as best he could. Interrogation found where officers placed the fruits of D's of his jail cell Direct v. Miranda is not vioatled b/c there is no interrogation. Mrs. Therefore an officer who tells the suspect he is under arrest and the suspect makes an incriminating remark. Indirect Statements • • One factor that cuts against a finding of integration was that the officers were ostensibly talking among themselves. Mauro indicated that he wished to say nothing more w/o lawyer. • Holding and Analysis: The court held this was not an interrogation as it was just a dialogue between two officers to which no response from D was invited. • Application of Innis • Arizona v. one officer mentioned to the other that he hoped that neon the children came upon the weapon with shells or they might hurt themselves. The officers then said they would get an arrest warrant for the daughter as they were unsure. D then confessed to the crime. D admitted he had killed his son. D told the officers to turn around so he could show them where the weapon was. Suspect was in custody when she was detained inside her stop. What is interrogation? • Police must also be interrogating the individual before the need for Miranda warnings arise. Mauro asked to talked with D. AZ . and not informed that she was free to leave • 2. • Ex.
Muniz . and the interrogation was conducted by officers who did not ordinarily book suspects • Questions Pertinent to Custodial Procedures and Tests • Explanations concerning custodial procedures such as fingerprinting. • Officers can ask questions attendant to custody without Miranda warnings. A terry stop found drugs and then popo found photograph and asked a direct question about why he would do this when he had a wife and kid waiting at home. • Noted that the booking exception would not apply if such questions were designed to elicit the incriminatory admissions • Determining the Scope of the Booking Questions Exception • How do tell the difference between biological info and questioning that is designed to elicit incriminatory admissions • Objective factors: • Whether there could be a proper administrative purpose for the question • Whether the question is asked by an officer who routinely books suspects • Whether the officer would need to know the info for booking purposes • Questions were not within the booking exception where they had a clear investigative purpose. • Police often are unaware when they arrest a person whether they he have committed a felong or misdemeanor • 5. D gives an incrementing answer and the court held that the officer's comment constituted impermissible interrogation • Questioning Attendant to Custody: • Interrogation excludes questions attendant to custody. By omitting essential element of informing that a person may not realize why the right to remain silent is so critical . How Complete and Accurate must the Warnings Be? • Court has declared that it never indicated that the rigidity of Miranda extends to the precise formulation of the warnings • As long as sufficient info was given and there was no misrepresentation • Ex. Does Miranda Apply to Undercover Activity? • Miranda was not meant to protect suspects from boasting about their criminal activites in front of persons who they believe to be their cellmates • Miranda was concerned with the pressures upon a suspect in a police-dominated atmosphere 4. He was brought to booking center and then asked other questions where he stumbled over answers and gave incorrect info. transportation. will robably not be considered interrogation even though the D may make incriminating statements during the explanation process. and if the suspect's answer is incriminating it is admissible at trial. Does Miranda Protection Depend on the Nature of the Offense? • • There is no distinction between felonies and misdeamnors insofar as Miranda is concerned • The exception to Miranda proposed would usbstnailly undermine the crucial advantage of the doctrine. His responses were admitted at trial as evidence as drunkenness • Court held although an interrogation they fell within the routine booking question exception which exempts from Miranda's coverage questions to secure the biological data necessary to complete booking or pretrial services. • The booking exception • PA v.D was stopped for drunk driving and failed sobriety test. • Even direct questions about the suspect's understanding of such explanations will not be interrogation. since they are considered necessarily attendant to such explanations • Statements and questions by popo that go beyond the subject matter of the custodial procedure could still be considered interrogation after Munirz • 3. inventorying.• Reasoning is that a a comment not even direct at a suspect is less likely to produce an incriminating response • Ex.
Do the Miranda Safeguards Apply to Custodial Interrogations of Foreigners Conducted Abroad? • It's clear that Miranda doesn't apply to interrogation by foreign officials conducted aboard. • Ex. Bin Laden . Wavier of Miranda right not proven by an officer's testimony that he read suspect his rights from a card and then suspect then confessed • Valid waiver could not be found simply by the fact that the warning were given and the suspect confesses • B/c the suspect may not have understood them • A D's subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver although there may be not formal waiver of his MIranda rights such cooperation when coupled wit his acknowledgement constitutes waiver • Ex. and intelligently • Validity of wavier is a question of fact in any particular case • A valid wavier will not be assumed form the silence of the accused after the warnings are given. Statements suprressed even though D voluntarily waived Miranda rights as the D had young children at the pop station and informed they would not be picked up until she confessed • Understanding the Miranda Warnings • Several courts have held that persons who are deranged or mentally defective can't knowingly or intelligently waive their Miranda rights • Waive might not be knowing and understanding if the suspect could not understand the Miranda warnings due to some language barrier • Ex. a confession can still be coerced under traditional due process standards. so long as there so long as there is sufficient evidence to show that the suspect understood his rights and voluntarily waived them • Knowing and Voluntary • Ex.Court held that privilege against self-incrimination protects foreigns who are interrogated aboard by American law enforcement officials • Also held that Miranda protections must be provide\d to replicate to the maximum extent reasonably possibly the rights that a suspect would have when subject o custodial interrogation in US. Waiver of Miranda Rights • 1. Suspect may make a valid waiver of his rights but the subsequent confession may be involuntary due to overbearing police pressure or warnings are given but the police pressure is so great that it can't be said that the suspect voluntarily waived his Miranda rights • Ex. • Adaptations would have to adapt to local conditions such as unavailability of counsel E. nor merely form the fact that a confession is eventually obtained • Neither an express statement of wavier nor a written waiver is required.• • Ex. When a D is familiar with chimerical justice system and answered some questions and refused to answer others is a valid demonstration of waiver • Relationship of Waiver Standards to the Test for Voluntary Confessions • Even after Miranda warnings are given. knowingly. Warning that fails to especially that statement can be used in court is sufficient: miranda and its progeny simply do not require the pop provide highly particularized warnings. at least when they are acting independently of US officials • US v. • 6. Suppression allows when D's primary language was Spanish and received horrible grades in English in high school and passed b/c the classes were taught in Spanish and had no familiarity with Miranda rights • Conditional Waivers: . Waiver and the Role of Counsel • Accused may waive the rights to silence and counsel if the rights are waived voluntarily.
D then confessed and court say the statements had to be excluded • Information Need for an Intelligent Waiver: The Inadmissibility of Previous Confession • Oregon v. given Miranda warnings. they have violated Miranda b/c the suspect never waived his rights with respect to y • Ex. Popo questioned D on immigration violation as well as smuggling activity.the right to silence. Permissible to provide the D with asummary of evidence against him and obtained a signed wavier form and a confession. • If the individual indicates in any manner. that he wishes to remain silent. IF the police then question him on y. • B/c the D never asked for counsel in Burbine.D arrested to certain robberies.• What happens when suspect says he will talk about x but not about y. • Court found that the admission did not violate Miranda. and told that he could remain silent • D said he didn't want to discuss the robberies and then two hours alter he was read his Miranda warnings given again. after invoking the right to silence. Burbine • State of Mind of Police Irrelevant • The fact that police acted deliberately to deprive the suspect of informant concerning counsels' attempt to reach him did not affect the validity of the waiver • State of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent's election to abandon his rights • The Role of Counsel Under Miranda • It is the suspect who has the right to counsel under Miranda and that right does not come into effect until the suspect invokes the right. Waiver invalid where suspect was asked to whether he owned a certain hat and coat two minutes after invoking the right to silence • Ex. Waiver After INvocation of Miranda Rights • A suspect can invoke two rights in response to the Miranda warnings . and made a formal confession. Elstad • D gave a Miranda defective confession then he received warnings. the interrogation must cease • Concluded that Miranda should not be a per se bar to resumption of questioning therefore the 2nd questioning could not be • Scrupulously Honoring an INvocation of Silence • Most important factor to be whether the officers gave the suspect a cooling off period after he invoked eh right to silence • It is clear that some break in the interrogation must occur. at any time prior to or during questioning. Mosley . D said he would confess about immigration violation but not smuggling activity. and the right to counsel • The rules on wavier differ depending on which right is invoked • Invocation of the Right to Silence • Michigan v. • Ex. His present at the popo station was irrelevant. • The second confession was admitted at trial • Court has never embraced the theory that a D's ignorance of the full consequences of his decision viatiates their voluntariness • It is arguably signed the minimum showing required before the government could successfully claim that an individual had waived his privilege and voluntarily made a statement • Information Needed for an Intelligent Waiver: Efforts of a Lawyer to Contact the Suspect • Moran v. the D was left alone for a day before the pop re-approached him with the summary of the evidence . and then he signed waiver form and made an incriminating statement. signed a waiver. counsel had no independent rights to assert. No Requirement to Inform the Suspect of Counsel's Efforts • • 2.
the suspect was consenting to the continued interroation • Officers are not required to scrupulously honor the D's right to remain silent unless the suspect's invication of that right is unequivocal • Custodial Interrogation Requirement • Mosley's requirement of scrupulous honor applies only if the D's invocation of the right to silence occurs in the context of custodial interrogation • Ex. rather than expression of willingness to discus his crime.• Multiple attempts to get the suspect to speak are considered problematic • When is the RIght to Silence Invoked? • Police questioning a suspect can continue the interrogation when the suspect has made an ambiguous and equivocal invocation of the Miranda right to counsel. he had no Miranda right to invoke. Miranda itself is inapplicable to the resulting confession. Asking for D to cooperate after invoking right to counsel = interrogation Defining Initiation: Oregon v.statement of What is going to happen was an initiation under Edwards • Following the plurality's roader view of initiation. US . • Indicating desire to keep belongings separate form those of co-D is not initiation • Asking "where are my children? Is not initiation" Ambiguous INvocation of the Right to Counsel: Davis v. it doesn't follow that every statement from the a suspect's mouth evinces a desire to talk generally about his case • Ex. Bradshaw • Court uses a two-step analysis to determine whether a suspect waives his rights after invoking the right to counsel: • First step is the bright-line prophylactic safeguard of the suspect-intiation requirement • Second step is the familiar totality of circumstances test of knowing and voluntary waiver Dissent said that initiation could not be found unless the suspect expresses a willingness to discuss • the specific subject matter of the investigation . • The court ruled that police were not obligated to clarify the suspect's intent. b/c the officers never interrogated him. • • • • . unless he initiates the conversation • But if police-renewed contact does not rise to the level of custodial interrogation. they could assume tat in the absence of clear invocation. Velazquez . Arizona • Court determined whether and under what circumstances a waiver can be found after the suspect invokes his right to counsel Relationship Between Edwards and Innis • Edwards holds that a suspect can't waive the right to counsel after invoking it. and therefore so is Edwards. • Edwards holds is that police may not interrogate him while in custody unless the suspect initiates the conversation and then knowingly and voluntarily wavies his Miranda rights. • Shown by Innis: • Innis invoked his right o counsel. D argued that his oncfession had to be excluded under Mosley b/c he had previously invoked his right of silence when he spoke to popo in an initial interview. US • Questions arise as to whether the suspect has in fact invoked a right to counsel • Davis v. • Ex. • D's termination of the voluntary encounter no independent barrier to later questioning • • Invocation of the Right to Counsel: Edwards v. and then confessed when the officers interrogated him later • D was not in custody during the initial interview. but Court it unnecessary to reach the question of waiver. Applications of Bradshaw • Lower courts have followed Rehnquist's broad view of initiation • US v.hence argued that the question was merely a response to his custodial surrounding.court held that a suspect must clearly and unequivocally invoke the right to counsel in order tot trigger the protections of Edwards.
• Of course when a suspect makes a ambiguous or equivocal statement it will often be good police practice for interviewing officers to clarify whether or not he actually wants an attorney but not required.police can initiate questioning on crimes other than the crime with which the D was charged.no initiation by the suspect is required. after invoking the right to counsel. "Uh yeah. right to counsel. the suspect is released from custody. • Ex. • • IV. Consequences of Explicit Invocation: Smith v. gave warnings. Waiver After the Suspect Has Consulted with Counsel: Minnick v. • Court concluded that where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous. . and the D voluntarily confessed. The Massiah Rule • Court extends the protections of the 6A to some police-induced confessions. • Held that an accused who is arraigned and asks for counsel is invoking the 6A rights. Mississippi Court held that protection of Edwards continues even after the suspect has consulted with an attorney. An arraignment does not constitute interrogation therefore invokes the 6A and not 5A protections. police questioning can continue. and such questioning need not be limited to that necessary to clarify the suspect's desire with respect to counsel • P said maybe I should talk to a lawyer and the officers asked questions to determine whether P wanted a lawyer. • D was arrested at the scene of burglary. P said no. Unrelated Crimes: Arizona v. which protects against police-initiated interrogation with respect to any crime Can Edwards Protectors Be Triggered in Advance of Interrogation? • Courts have held that the Miranda right to counsel can't be invoked in advance of police interrogation • Ex. • Officer can approach such an aspect when he is again brought into custody and interrogate him . and that there is a difference in the protections invoked. therefore. Illinois • suspect who asked whether he understood his right to have a lawyer stated. I like that. Confessions and the 6A Right to Counsel • A. Roberson • Invocation of the right to counsel under Edwards was not offense-speciic. rather than Miranda. Suspect could not invoke his MIranda right to counsel when he was not yet in custody. • Which Constitutional Right to Counsel if Invoked? McNeil v.• • • • • • • If invocation is ambiguous or equivocal. all questioning must cease. 3 days later an officer who had been unfamiliar with D's situation obtained a statement. Such an invocation prevents police-initiated interrogation on any crime. • Invocation of 6A is offense specific ." • Court held that Ds statement in this case neither indecisive nor ambiguous. • Invocation o the Miranda rights to counsel. there was no violation of Edwards when officers later initiated interrogation. Wisconsin • A D who has been formally charged with a crime also has a 6A right to counsel. • Exception: police-interrogation after an invocation of counsel may occur only if counsel is actually present during the interrogation • The interrogation must cease until a attorney is present • A single consultation with an attorney does not remove the suspect from the persistent attacks by officials to persuade Imo to waive his rights or from the coercive pressures that accompany custody and that may increase as custody is prolonger The Continuous Custody Requirement • Lower courts have unanimously held that Edwards protections will not apply if. Given miranda warnings and stated he wanted a lawyer before answering questions. P argued that this was a should be removed but Court said no.
He confessed but did not confer with counsel. Gouveia reaffirmed the 6A right to counsel attaches only after adversarial proceedings have begun • Court held that prison officials did not violate the right to counsel of inmates suspected of two murders when the officials placed them in administrative detetion for period of 19 and 9 months prior to their being indicted. • Ex. was suspected or murdering 10 year old girl. Burbine . Williams • The courts look carefully at confessions obtained from Ds who have retained lawyer when the police do not allow the lawyer to assist in interrogation. This rule protects the attorney-client relationship and guards against overreaching by the adversary Obtaining INfo From Formally Charged Defendants Court returned to the 6A as an additional source for excluding confessions • Brewer v. Court held that still allowed. Prison guard submitted the prisoner's confession. • Ex. Morton . US • Even if a statement is admissible under the voluntariness test. 6A attached at a Formal Charge: US v. 6A didn't apply since the suspect hand't been formally charged. ON advice of counsel.• • B. Guard had no responsibility for eliciting or reporting info for use in the prosecution of Bey's case and was not working with anyone . On the Meaning of Deliberate Elicitation • 6A prohibits a gov agent from deliberately eliciting incriminating evidence from an accused on the absence of counsel or a waiver.no violation of a suspect's 6A right to counsel when police failed to disclose to him that a lawyer had called and had been falsely told that the suspect would not be interrogated until the next day. Court held that D clearly invoked his right to counsel and the police used the speech to overbear D's will and obtain a waiver. Polic knowingly isolated D from the protection of his lawyers and during the period he intentionally persuaded him to give incriminating evidence. Court argued that there no clear indication of waiver since D continued to interact with counsel for every decision that he made. • Further Note: He may have a 5A right to counsel under Miranda if he is being interrogated while in custody The Rationale of Massiah • So the 6A protection established in Massiah must be directed toward something other than police-created pressure to confess • Massiah right is basically a constitutionalized version of a rule of professional ethics: • That an adverse party in advance of litigation. His conviction got overturned so he had to go to re-trial. • Moran v. • • • • Massiah v. Gouveia • US v. D turned himself to police. Police used D's religious beliefs against him. • Bey v. • Note: there can be violation of the 6A right to counsel before formal proceedings have begun. The right is violated if after adversary judicial proceedings have begun (e. D an escapee form mental hospital. In such cases.death row prisoner talked to prison guard and confessed to killings. After indictment). the police question the defendant outside the presence of counsel or without a valid waiver of the right to counsel. the courts are more likely to find that the right to counsel has been violated. may be contacted only through her lawyer. Thus a D who is arrested but not yet charged does not have a 6A right to counsel. it may still be excluded from trial if the taking of the statement violated the 6A right to counsel.e. Police promised D and his attorney that they would not question D until he had a chance to talk with attorney. Conversations overheard through a bug placed in the D's car were inadmissible b/c the gov had intentionally elicited incriminating evidence after indictment and in the absence of counsel.
D argued that jailhouse informant working as gov agent b/c he worked for the DEA two years ago and in regular contact with DEA while in jail. • Does the 6A prohibit an officer from obtaining info from the D concerning uncharged crimes? Maine v. beyond merely listening. planned to discuss defense strategy E. as long as incriminating info was actively secured from the D whiteout the presence to counsel • The Listening Post: Kehlmann v. Watson .• • • with such responsibility. even though the warnings are based on 5A protections. Waiver of 6A Protections • Waiving 6A Rights After Receiving Miranda Warnings: Patterson v. US C. D. the question is simply whether the waiver was knowing and voluntary • Assuming that the gov can show that the D voluntarily relinquished his 6A rights. Jailhouse plant was a state agent when he had been promised a reward for suitable info obtained from any source about any inmate and the informant was motivated by a concern to obtain that reward. Wilson • 6A not violated when police but a jailhouse informant in close prolixity to a D and the D made statements to the informant w/o any effort on the informant's par tot elicit the statements • To prove 6A violation. when a D may agree to respond to police questioning w/o the presence of an attorney. D's 6A right to counsel was violated when the police arranged to record conversations between the D and a co-D who was a gov informer at a meeting at which both Ds. The Miranda warnings convoy to a suspect the right to the assistance of counsel. • Application of The Deliberate Elicitation Standard: Fellers v. that was deliberately designed to elicit incriminating remarks • Is the Informant a State Agent? • 6A protection under Henry requires that the informant must have been working for the gov at the time the info was obtained from the accused • US v. • The Miranda warnings are sufficient to advise a D of his 6A right to counsel. Use of Undercover Agents • 6A is less protective in regulating confessions than in the 5A. Continuing Investigations • D who is formally charged has a right to be free from deliberate attempts by state agents to elicit incriminating info in the absence of D's counsel. • Ex. w/o counsel. This occurs after indictment. Illinois • Where the D receives warnings and waives his rights. • D may waive the right to counsel prior to trial. Henry • 6A right to counsel can be violated even if the D is not explicitly questioned. Court held that this didn't stick as the DEA did not encourage the informant to talk with D. Jackson • Protections of Edwards are not applicable in 6A context unless the accused unequivocally invoked his right to counsel . whereas Miranda only applies when the suspect knows that he is speaking to a police officer • Jailhouse Plant: US v. • Indictment Warnings • Law enforcement officers need not inform an accused that he has been indicted before seking a waiver of his right to counsel • Waiving the 6A Right to Counsel After Invoking It: Michigan v. a D msut show that the police took some action. it limits the use of undercover tactics. thereby enabling the suspect to waive the right if he chooses. it applies only to those who have been formally charged whereas 5A applies to all suspects facing custodial interrogation • 6A is more protective than the 5A. US • Fellers v. Records lacks evidence of any questions designed to elicit the statement that Bey had raped and beaten a women to death. another question arises: whether the D was sufficiently informed of his rights to make a knowing waiver. Moulton • • The test is whether the gov obtained incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and gov agent • Ex.
The right extends to only charges that are the same as the charged offense. A New and Sweeping Rights and Its Limits • • A. Accused not helpless. unlike the Miranda right. • Invocation of 6A rights gives Jackson-Edwards protection only as to the crime with which the accused has been charged. Wisconsin • Invocation of the 6A right to counsel. unless the D waives the assistance of counsel. Wainwright. approached by police for statement and then waived his rights and confessed • Police can approach suspect an interrogate him. The Early Development of the Right • Johnson v. The d's conviction for robbery was affirmed even though the judge refused to appoint counsel upon request. Wainwright • . Appointed Counsel For Indigents in Felony Prosecutions • Gideon v.v Brady . D was subsequently questioned w/o his attorney about persons missing from the burglarized premises. Zerbst . • Betts . so long as they gave him Miranda warnings and he understood the warnings and voluntarily waived his right to counsel. Harriet . Brady • Court did not require counsel in all state prosecutions. confession was not obtained in violation of 6A where counsel was appointed to D on burglary charge. Alabama • Facts: • Issues: • Holding and Analysis: • Note on Betts v. ability to take care of his own interests. Under that test. The test for determining whether there are two different offenses under the 6A is the Blockburger test. Unqualified right to counsel in state capital cases.appointed counsel but made no statement. The Court viewed counsel as a jurisdictional prerequisite to a fed's court authority to deprive an accused of life or liberty. • II. The 6A Exclusionary Rule • Courts have held that Massiah-defective confession can't be used for impeachment purposes • Courts have also held that the fruits of Massiah-defective confession must be excluded from trial • • The Right to Counsel 6A provides that in all criminal prosecutions. two crimes are considered different offenses if each requires proof of an additional element that the other crime doe snot require. • Powell v. Cobb • The 6A right to counsel doesn't apply to an uncharged offense merely b/c it is factually intertwined with a charged offense for which the D has sought counsel. Courts held that the Due Process Clause required appointment of counsel only where special circumstances indicated that the D could not perform adequately on his own. D allowed counsel b/c the difficult legal questions in the case presented too great a potential for prejudice to the D. is offense specific.6A requires counsel in fed court in all criminal proceedings. • Waiver as to cimres Unrelated to the Crime Charged: McNeil v. of ordinary intelligence. IIIl. • Which Crimes Which are Related to the Crime Charge? • Texas v. the accused shall enjoy the right to have the Assistance of Counsel for his defense. and D confessed to murder them F. Court held explicitly that the Due Process Clause of the 14A did not incorporate the specific guarantees of the 5A. after arraignment.counsel for indigent defendants was not considered a fundamental right essential to a fair trial. • Between Betts and Gideon • The case-by-case special circumstances approach to appointment of counsel in Betts as undermined by a number of cases decided before Betts was overruled in Gideon v. • B/c burglary and murder are different crimes under Blockburger.• • Wilcher v.
Illinois and Nichols v. McCarty . An unconcealed misdemeanor conviction.court held that D was denied his right to counsel under Argersinger and Scott when his misdemeanor theft conviction was transformed into felony b/c of a previous conviction for the same offense. US . Therefore. The to counsel grew with the answer. • An indigent person subject to to custodial questioning for a misdemeanor has a right to appointed counsel during that questioning. Illinois • Argersinger didn't decide whether the right to counsel extends to a misdemeanor d who is punished only with a fine. US • Baldasar v. Therefore. • The Right to Appointed Counsel in Misdemeanor Cases • Court was asked to determine whether a D charged with a misdemeanor was inherently more capable of self-representation than a felony D. Stages where the presence of counsel is critical . It is effect conditioned the free exercise of one constitutional right upon waiver of the other. • If a defendant is not provided counsel at trial. the present financial inability to obtain counsel which defines indigence for 6A purposes appears • The trail court permitted an FBI agent to testify about the statements the D made at his indigence hearing. (Adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel) • 6A and 14A require only that no indigent criminal D be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. • • • • Scope of the Right A. sentenced after pleading guilty to a fed drug felony after previously been convicted of DUI offense. valid under Scott b/c no prison term was imposed. • Nichols v. as proof that the funds did not come from lawful sources. . he was not entitled to counsel b/c he was not sentenced to prison. Critical Stages Counsel made be needed before trial and after. DUI conviction was used to place P in higher criminal history category for sentencing on the drug offense. • Use of Unconcealed Convictions to Enhance a Sentence: Baldasar v. But then at trial. he has no right to appointed counsel unless he receives a prison sentence. the court can't impose a suspended stench and probation.overruled Baldasar. Even though the statute under which Scott was convicted authorized a year of incarceration. • Argersinger v.• Facts & Holding and Analysis: • Establishing Indigence • Gideon requires the state to appoint counsel for indigents in felony cases.are so labeled when it is said that counsel is constitutionally required to protect against substantial prejudice to a D's rights.held that protections of Miranda applied to arrests for misdemeanors. misdemeanors are not allowed when just fines but allowed for fines. which was misdemeanor with no jail time. Hamlin • Facts & Holding: • The Actual Imprisonment Rule for Misdemeanor Cases: Scott v. but what does it mean to be indigent. created a tension between the D's 5A and 6A rights. is also valid when used to enhance punishment at a subsequent conviction. The court of appeals held that this was error. It stated that indigence is not equivalent to destitution if by their nature an accused's assets can't be timely reduced to cash and cash is required. Applying the Actual Imprisonment Approach • • Berkemer v. statements to confirm indigence can't be used to implicate him at trial. where the defendant had not had counsel when previously convicted and fined. Illinois. b/c admitting the statements.
it's likely to come as no surprise that sentencing is treated as part of the trial process and as requiring the assistance of the counsel.held that indigent D has a right to appointed counsel for his first appeal of right from a criminal conviction. Under this approach. CA . CA & Ross v.court scrutinizes any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the D's right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.held that photographic identification at which the accused was not present was not a critical stage. Ex. Even where the criminal process has begun. Preliminary Hearings: Coleman v. on an equal protection rationale for requiring provision of counsel: because a person with means would retain counsel for an appeal of right. Court rejected the arg that the right to counsel attached to those meetings. b/c no charges have not yet been filed. Reasoning: lawyer's skilled examination and cross-examination of witness may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Counsel is not reasonably necessary for discretionary appeals. Courst have held that Mempa doesn't mean that every step of the sentencing process is critical within the meaning of the 6A. Post-Trial Stages Right to counsel has been extended to certain stages of a criminal prosecution following trial. Holding. an investigation generally does not trigger counsel rights. Moffitt Douglass v. the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Alabama Court found that Alabama's prelim hearing was a critical stage requiring the appointment of counsel for the indigent defendant. generally one can say that adversary proceedings must be formally initiated before a particular phase of a prosecution can be considered a critical stage requiring counsel. and aserts no right to be present. Until the formal charges have been filed. the denial of consel to an indigent was discrimination that violated the Equal Protection Clause. counsel is not constitutionally required at the grand jury stage. Similarly. Before the formal filing. no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Extension appears to be based on whether the counsel's presence is necessary to provide the D with a minimum level of fairness. there are limitations on the extention of the right to counsel to pre-trial proceedings. the state has an obligation to appoint counsel for an indigent whenever counsel would be necessary for adequate access to court relief. It calls upon the court to analyze whether potential substantial prejudice to D's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. Since the accused himself is not present at the time of the photographic display. US v. the right to counsel is not triggered. and Analysis: Limitations on Mempa Today. Ash . Applying Ross to Other Post-Trial Stages . Prelim hearings are meant to determine whether there is sufficient evidence against the accused to present the case to a grand jury and to fix bail. Court distinguished between lineup in Wade b/c in Ash there was no confrontation between the accused and the prosecution. as in Miranda. Thus. Other Pre-Trial Critical Stages Unless counsel is provided to safeguard an independent constitutional right. B. Hray Facts. Wade .• • • • • • • • • • • • • • • • • • • • • • • • • Definition of a Critical Stage: US v. Wade US v. D was arrested was sentenced on the basis of ex parte communications between his probation officer and the sentencing judge. The court relied for the first and only time. Found the meetings to be non-adversarial. Mempa v. Court switched from an equal protection rationale to a due process rationale in assessing whether indigents had a right to appointed counsel in the appeal process. Right to Counsel on Appeal: Douglas v.
• • • • • • • • • • • • D could not challenge his retained lawyer's failure to file a trimly petition for discretionary review in the state supreme court. based on a timely and colorable claim that he has not committed the alleged violation of the conditions upon which he is at liberty. Hooey & Dickey v. Fundamental Right: Klopfer v. B. AN indigent D's right to an appointed expert under D is not automatic. But since D had no right to counsel in his appeal to the state supreme court. The Right to a Speedy Trial A. D has no right to right to counsel in post-conviction (habeas corpus) proceedings. Delay in Arresting or Charging the D • Trial Related Rights • • • • • • • • • • • • • . that they have to fundamentally air b/c liberty interests are threatened). Imprisonment on Other Offenses: Smith v. The Background of and Policies Supporting the Right 6A provides that in all criminal prosecutions. which held that due process protections apply to parole revocation proceedings (in other words. Dickey v. it may be said that counsel should be provide in cases where. Scrappily Once the D has been properly convicted and sentenced. It is only triggered when the Dw ill deprived of a fair opportunity to present his defense w/o the expert assistance. after being informed of his right to request counsel. or that even if the violation is a matter of public record or is unscented there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reason are complex and otherwise difficult to develop or present. It is consistent with delays and depends upon circumstances. Court said that D should have had a psychiatrist appointed to assist his defense at both stages. drain on financial resources) To promote society's interest in promptly disposing of charges so as to enhance the proper admin of justice Court held that procedure indefinitely prolonged the anxiety and concern accompanying public causation and hence it violated the D's right to a speedy trial. and presentation of the defense. I. Parole and Probation Revocation Proceedings: Gagnon v.held that speedy trial rights extend to people imprisoned on other offenses. Presumptively. the probationer makes such a request. SC has long recognized that the right of a speedy trial is necessarily relative. The Right Extended to Experts Indigent D may in some cases ben entitled to appointed expert assistance in addition to appointed counsel Ake v. FL . C. D declared insanity. some constitutional protections diminish or disappear. D argued that counsel had been ineffective. A state can't require an indigent to pay a filing fee as a condition precedent to an appeal. Hooey . OK .arrested and charged wiht murder a couple and wounding their two children. such as oppressive pretrial incarceration (with resulting disruption of employment. Court adopted by case-by-case approach to the appointment of counsel at these relocating hearings.court ordered a prosecution dismissed when a fed prisoner made persistent requests for a speedy trial on armed robbery charge. A D has no absolute right to counsel at parole or probation revocation proceedings. FL Smith v. NC The purposes are twofold: To relieve the defendant of unnecessary consequences of being accused of a crime. and for 7 years FL took no action to bring him to trial. there could be no claim of ineffective counsel. Gagnon Court determined that due process also applied to probation revocation hearings. the accused shall enjoy the right to a speedy and public trial. D had been denied due process when he was not afforded access to a competent psychiatrist who might have conducted an appropriate examination and assisted int he evaluation. Right to Free Transcripts The indigent appellant has the constitutional right to a relevant transcript or adequate substitute when challenging trial errors on an appeal as of right. The court rejected the contention that states are under a constitutional duty to provide counsel for indigents in all probation and parole revocation cases. prep. This is so even though the conviction is for an ordinance violation punishable by fine only.
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1. Speedy trial clock started ticking as of the initial indictment. 4 years later. Defendant may raise the speedy trial issue at trial even if he made no motion regarding the right before . A deliberate attempt by the prosecution to delay the trial so as to receive an advantage weights heavily toward a violation of the right to speedy trial. and before the dismissal was reversed on appeal. D was indicted on murder charges. The failure to assert the right.5 years after his fed indictment due solely to the gov's neglect and who roomily assert his right to a speedy trial claim was presumptively prejudiced so that an actual showing of prejudice was not necessary Excusable Delay . Those chages were dismissed w/o prejudice and D was honorably discharged. Loud Hawk Held that the time after a district court dismissed an indictment. Court of appeal found a speedy trial violation b/c the long delay allowed the prosecution to refresh the memory of its witnesses. Under these statutes. Justice Dept presented the case against D to a grand jury. Lovasco A person is protected by the Due Process Clauses of the 5A and 14A against unnecessary preaccusation delay that causes substantial prejudice to a fair trial. Held that the time between the dropping of charges and a later indictment does not count toward the speedy trial determination Reinstated Indictment: US v. reason for the delay. should be excluded from the length of delay considered under the Speedy Trial Clause where Ds were not subject to any restraints during this time period. there is no need to investigate the other factors in the balancing test. In each case. and such factors as length of delay. however is heavily weight by the courts. Marion Dismissal of indictment was not constitutionally required merely /c D was indicted for fraud 3 years after the latest act alleged Second Indictment: US v.) may be determinative in a finding of non constitutional violation. A justifiable reason for delay (missing witness. Wingo Whether the case must be dismissed for lack of speedy trial requires a balancing test. Due Process Clause Analysis US v. Application of Barker Test: Doggett v. SC held that the D could not bring an appeal from the denial of a motion to dismiss on speedy trial grounds until after the completion of the trial. The conduct of both prosecution and the D is weighted. delay alone may require a dismissal. and the defense could not adequately probe the recollection of the witnesses whose memories were refreshed. Various statutes impose specific time limits within which an accused must be brought to rial. 2. Comment on Lovasco C. and the prejudice to the D are considered. MacDonald Military charges had been brought agains the D for murdering his wife and children. Speedy Trial Clause Analysis US v. Assessing Speedy Trial Claims Barker v. The nature and amount o prejudice resulting form the delay must be considered in glith of the consequences the right is designed to protect against. Until there is a delay of sufficient length to be arguably prejudicial. D's assertion or non-assertion of right. illness of parties. the reasons for the delay and the impact on the trial (any prejudice to the D that may have resulted) must be considered. Reversing dismissal of indictment charging firearms offenses over 18 months after the last alleged act when two material witnesses died during the delay. US Doggett v. Length of delay alone does not establish a violation of the right to a speedy trial. US A D who was arreste 8.
where the D's speedy trial clim was made for the 1st time on appeal. The need to find prejudice thus diminishes as the delay mounts. US v. Btu eh Act recognizes that criminal cases vary widely and there are valid reasons for greater delay in particular cases. US v. and the impact of a reprosecution on the administration of [the Act] and on the administration of justice. D's pre-trial motions may cause a delay and therefore may preclude the speedy trial claim Delay and Prejudice Court in Doggett stated that delay attributable to the gov will be so extended that prejudice will be presumed. the facts and circumstances of the case which led to the dismissal. E. especially if based only on a claim of nonchalant government attitude. generally requires a trial to begin within 70 days of the filing of an information or indictment or the D's initial appearance. the seriousness of the offense.4 month delay due to negligent failure to procure attendance of a witness did not violate the right to a speedy trial. how he was prejudiced by the delay. D. charges against the D are to be dismissed either with or w/o prejudice In making the choice to dismiss the charges with or w/o prejudice. Loud Hawk . Vassell . Taylor . the D wil not have to show. she is deemed to have waived her right to a speedy trial. the court msut take into account.meaning in this context that the D does not need to show specifically how the delay prejudiced him. B/c the delay was not attributable to the gov but to D's evasive actions.held that a 7 month delay did not amount to a Speedy Trial Clause Violation where the gov spent of that time trying to get D's co-D to take a deal and testify against D since it takes time to negotiations may drag on when a guilty plea is rejected by the D.The Sc has held that the dismissal remedy should be used sparingly.no showing of prejudice required when gov negligence cause a 5 year delay Presumptive prejudice has two distinct meanings: Delay must be so long as to trigger the Barker-Doggett inquiry in the 1st place Delay is presumptively prejudicial when it approaches one year If the delay is attributable to the gov. Remedies for Speedy Trial Violations Strunk v.• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Doggett holds that when the gov has a good reason for post-charge delay. US v. D was not required to show prejudice and this he could not do. Dismissal With or Without Prejudice If the applicable time limits of STA are not adhered to. D's Diligence A D's diligent in asserting his speedy trial right is a critical factor US v. The more severe sanction is available for use where appropriate.interlocutory appeal by the oGv (an appeal on a judge's ruling before a verdict has been rendered) ordinarily is a valid reason that justifies delay. If a 5 year delay occurs between indictment and trial due to D evading authorities although he was not aware of the indictment but this meant both requirements as the delay was attributable to the gov's negligence in pushing D. set time limits for bringing cases to trial. The less severe sanction lets the court avoid unduly impairing the enforcement of fed criminal laws. by statute or court rule. Ex. The court will often overturn a lower court's decision to dismiss with prejudice. and the knowledge that a violation could potentially result in the imposition of this sanctions gives the prosecution a powerful incentive to be careful about compliance. D's burden of showing prejudice is substantially increased US v. . Beyond the Constitution: Statutory and Judicial Time Limits Although not required by 6A. US v. The Speedy Trial Act Speedy Trial Act of 1974.D knew his indictment during the 5 year period before he was arrested. Shell . US . The court noted that the gov had diligently pursued the D during the period.considered what remedies are available for violations of D's right to speedy trial Dismissal seems to be the only possible remedy If the delay is attributable to willfull delay tactics by the accused. it can be so long as to be presumptively prejudicial . Aguirre . specifically. a large number of jurisdictions have. Juarez-iFerro .
Counts related to two different victims on two separate occasions. US .• • • • • • • • • • • • • • • • • • • • • • • • • • • Where the D has already served a good part of his sentence by the time of appeal. Joinder of Defendants Persons who are indicted together should be tried together. US v. D can be joined if they are alleged to have participated in the same act or transaction. though the substantial counts charged each D with different acts of theft. Hoke . Time Limits of the Speedy Trial Act Can't be Waived Prospectively: Zedner v. even though drug activity occurred on the streets an the gun was found in the D's girlfriend's apartment. D had not suffering nay prejudice warrating severance. The Right to a Speedy Appeal D signed a waiver of speedy trial rights. Joinder and Severance A. After a variety of delays . Reynolds . the trial began 6 years after the D was indicted. Tucker . even though a 6 year delay in hearing his state appeal violated his due process rights. Severance is not required in the circumstances until the D makes a convincing showing that he has important testimony to give concerning one count and a strong need to refrain from testifying on the other. most importantly b/c the Act protects more than the the rights of the D. his incarceration pending appeal was not oppressive and his appeal was not impaired by delay. D argued that joinder was improper b/c he wanted to testify in his own defense as to one of the counts but not the other. US F. D was identified as a culprit in two armed bank robberies. Holloway . The court condoled that any prejudice the prisoner suffered from the delay did not harm his ability to have a fair review of his conviction.gun charge was properly joined with a narcotics charge for the same reasons that allow the gov to introduce weapons into evidence at narcotics trial US v. Muwwakkil v.if evidence of the criminal act would be admissible to prove a different crime. And so the charged were part of a common scheme or plan Declaring the Privilege as to ONe Count But Not the Other US v. Windom . Some General Rules and Problems Rule 8 governs the charges and Defendant that can be joined. Johnson . US v. constituting an offense or offenses. a competency determination and a motion to dismiss for violation of STA. Court held that the protections of the Act are not prospectively waivable.13 year delay I appeal was a violation of due process. the preferred remedy is a dismissal of the indictment. Ogv joined the bank robber counts with an additional count for felon firearm possession. The Rule provides that charges against a single D can be joined if the offenses are of the same or similar character or are based on the same act or transaction. Simmons v. Joinder of Claims US v. II. The court held that the disposition of his state appeal while is habeas corpus petition was pending transformed the prisoner's custody from illegal to legal. or in the same series of acts or transactions. b/c the proof at trial was carefull compartmentalized as to each D. Dixon . Court held that firearms was improperly joined as the gov had never contended that the gun found on D when he was arrested was the same gun used in the bank robberies.including a withdrawal of counsel. or are connected with or constitute parts of a common scheme or plan. B.held that the D. Rule 13 permits the court to consolidate separate actions if they could have been joined under RUle 8.firearms charge was related to narcotics charge. there is no prejudice in joining charges as to both crimes in a single trial. Schafer v. .D objected to joinder of two counts of sex abuse.b/c the D's appeal lacked merit. He was found to be carrying a firearm when arrested. Rule 14 gives the court discretion to sever or to provide other relief if prejudice would result from joinder. D's possession could be linked to his need to protect his ongoing distribution of illegal drugs.D were joined on the basis of a conspiracy charge. Court said this arg was crap. no remedy is warranted where the D can't show that the result of the appeal would have been different but for the delay. a state prisoner is not entitled to be released from custody. C.
a D msut esatlibhs a bona fide need for the co-D's testimony. A fed DC shooed grant a severance only if there is a serious risk that a joint trill would compromise a specific trial right of one of the D's. B. Lane Improper joinder can be appealed. Mega-trial is defined where the estimated English of the trial to be greater than 4 months and ten or more Ds are joined. the D will have to show a disparity in the evidence so great that the jury will not be able to follow limiting instructions. Reasonable Doubt and Jury Instructions Taylor v. misjoinder of one count of mail fraud involving one D with other counts of mail fraud involving both D's is harmless error. offer testimony that would exculpate the D who complains about joinder. The Burton Problem SC held that an instruction to jury to consider the admission or confession only again sthe D who made it would not afford the other D's the protection to which they are entitled under the Confrontation Clause of the 6A. III. and that the co-D would in fact testify. A postal inspector testified that Evans had confessed that both he and D had committed the crime and D's name was not redacted from the statement admitted at trial. Megatiral would often be more costly than a number of individual trials. Misjoinder Violation of Rule 8: US v. For exampe. D. Proof beyond a reasonable doubt generally Constitutional requirement: In re Winship In re Winship . The reasonable doubt standard for all elements of the crime. There msutb e a severance of Ds or a deletion of references to the co-D's. Neal . Disparity in the Evidence In order too obtain a severance on the ground that there is a gross disparity in the evidence against the joined D's. D must show that the prospective testimony is substantially exculpatory. Some disparity between D is permissible if it is within the jury's capacity to follow the court's limiting instructions. but is subject to a harmless error analysis Misjoinder is subject to a harmless error analysis and is not reversible error per se. for fear that he wil jinjure is how defense.Ex. Constitutionally Based Proof requirements A. US v. Kentucky . or prevent the jury from making a reliable judgment about guilt or innocence. P and his co-D were convicted in a joint trial of armed postal robbery.reversed conviction where judge refused to give a requested instruction that the D was presumed innocent However presumption of innocent instruction is not constituiaonlly required in every case The failure to give a rquested instruction on the presumption of innocent msut be evaluated in light of the totality of the circumstances including all the insurrections to the jury. Finger-Pointing: Zafiro v. The admission was found to violate Zbruton's constitutional rights. if tried separately. Evans did not testify and the judge instructed the jury that the testimony of the postal inspector was admissible only against Evans.• • • • • • • • • • • • • • • • • • • • • • • • • • • • Exculpatory Testimony From a CoDefendant Joinder may be imrpoerp when one or more of the Ds would.court held that the requirement of proof beond a reasonable doub t is one of the essentials of due processa nd fair treatment requied during the adjuictoary stage when a juvenile is charged with an act that would constitute a crime if committed by an adult. Not that references to co-Ds that are no specific (we talked about killing our robery victims where we refers is not defined) need not be excluded. the SC has cited a preference for joint trials do D who are indicted together.severance shuld have been granted where co-D would ahed taken the stand in a separate trial to exculpate the complaining Ds. US Out of concern for efficiency in the judicial system. the exculpatory nature and effect of the tesimtony. The compliant is that the witness will not testify if he is joined. To trigger severance. . the arguments of counsel. The Problem of the Megatrial Judge adopted a presumption against a joint trial and for severance when faced with the prospect of a mega-trial. the substance of the testimony.
It is unconstitutional to require the D to prove reasonable provocation that will reduce a killing from murder to manslaughter. and other relevant factors to determine wheter the D received a constitutionally fair trial. 2. Nebraska Sc reasonable doubt standard plays a vile role in the American scheme of the criminal procedure and is a prime instrument for reducing the risk of voncitions resting on factual error. proof of the facts msut be submitted to the jury and proved beyond reasonable doubt. Judge gave a reasonable doubt instruction substantially identical to the instruction found defective in Cage. Victor v.• • • • • • • • • • • • • • • • • • • • • • • • • whether the weight of the evidence was overwhelming. Note on Append Append and Sentencing Factors that do not increase Th. Apprendi v. Wilbur In some cases. Upheld a NY statue that placed the burden on the D by a preponderance of the evidence after the prosecutor proved an intentional homicide beyond a reasonable doubt . Court sated that b/c of the instruction. the stenciling judge may not make the determiatnion. Sullivan v. PA Recidivism as a sentencing factor or as an element of the crime? Court held that the lgislature had the constutiaonl authority to treat recidivism as a sentencing factor rather than as an element of the crime. Us Appendi and the Death penalty: Ring v. Statute allowing a D's sentence to be increased by 10 years if judge finds by preponderance of the evidence that the crime was motivated by hate is invalid under the 5A and 14A. Thus if eh D's criminal history is a sentencing factor.court unanimously held that a constituiaonlly-defective reasonable doubt instruction can't be harmless error. a reasonable provocation is an element of the crime of manslaughter. Mere probably of guilt clearly is not enough. Statory maximum penalty: harris v. SC struck down a conviction where the trial court's instructions on reasonable doubt equated ti with grave uncertainty and actual substantial doubt b/c these requie a higher standard of doubt than reasonable doubt. P was deprived of his 5A right to s jury verdict of guilt beyond a reasonable doubt. but something less than absolutely certainty is requied. facts determined at sentencing have rationally been subject to the preponderance of the evidence standard. AZ 1083-1148 1148-1187 1237-1282 . C. Louisiana . the gov need not prove that the D committed prior crimes beyond a reasonable oubt. Element of the Crime or Affirmative Defense? Impermissible Burden-Shifting: Millenary v. Louisiana v. Preponderance of the evidence at sentencing mcmillan v.in order to reuce 2nd degree murder to manslaughter. hat appears to be an affirmative defense is actually an element of the crime charged. Facts etending the sentence beyond the statutory maximum penalty are elements of the crime: Append v. it is an element of the crime that must be set forth in the indictment and the D has the right to have the fact proved beyond a reasonable doubt to a jury. Flexibility to Determine Affirmative Defenses: Patterson v. Where the fact supporting a sentencing enhancement is used in that way. The preponderance of the evidence standard is sufficient. Element of Crime or sentencing factor? While the gov has burned o proven an element of the crim ebyeond a reasonable doubt. The Scope of the Reasonable Doubt Requirement: What is an Element of the Crime? 1. so that the government must prove that fact beyond a reasonable doubt. The court has been reluctant to adopt this defition. NY It is constitutional to require the D to prove extreme emotional disturbance where that is not an element of a lesser homicide crime. NJ If substantive law provides that a setencen may be increased beyond the statutory max fora crime if addiotanl facts (other than prior conviction) are proved. NJ McMillan established a baod principle that prohibits the state and fed govs from using sentencing enhancements to increase a setencne beyond a statutory maximum. Reasonable Doubt Instruction: Cage v.
• Schad v. D argued that this procedure was invalid. 1388-1406 Constitutionally Based Proof Requirements • D. • Court held this was permissible that it could be committed by alternative means so long as the means reasonably reflect notions of equivalent blameworthiness or culpability. IV. b/c it excused the state from having to prove all the elements of one specific crime beyond a reasonable doubt. Presumptions • An alternative to placing a burden of persuasion on a defendant in order to reduce the burden on the government of presenting evidence is to utilize a presumption or a judically recognized inference. Trial by Jury • • . the jury in order to convict the D would have to agree unanimously that the D committed at least 3 underlying drug transactions and they would have to agree not he specific transactions in order for them to count toward the series. Franklin • • Instruction to the jury that law presumes that a person intends the ordinary consequences of his voluntary acts violated the constitution. Sandstorm v. • The challenged instruction created a mandatory presumption b/c it was cast in the language of command. • Majority held that the underlying illegal activity constituted an element of the crime. In AZ. • The theories were of moral equivalence so allowed. but does not require the jury to draw the conclusion. since it couldn't be determined how the jury would treat the instruction. any instruction must be a fair statement about evidence actually produced in the case • Any presumption that shifts to the D the burden of proof on an element is unconstitutional under Winship. Arizona . Allen • Facts: • Holding and Analysis: • Notes: • Presumption cases establish 3 rules: • Where the prosecution bears the burden of persuasion.D charged with 1st degree murder. Shifting the Burden of Intent. Proof of Alternative Means of Committing a Single Crime • Is it constitutionally acceptable to define a crime so broadly as to permit jurors to reach one verdict based on any combination of alternative findings of fact. • A mandatory presumption instructs the jury that it must infer the presumed fact if the state proves certain predicate facts • A permissibe inference suggests to the jury a possible conclusion can be drawn if the state proves predicate facts. Prosecutor advanced both murder theories and offered proof under both theories. and not the means. 1st degree is both premeditated murder and felony murder. Montana and Francis v. a trial judge may not encourage the jury to make logical jumps not supported by the evidence • Where a persuasion burden could be shifted to a D. • Court must determine whether the challenged portion of the instruction creates a mandatory presumption or merely a permissive inference. US • Richardson convicted under continuing criminal enterprise statute violation of drug statutes where such violation is part of a continuing series of violations. • Distinction between means and elements: Richardson v. the Court found the reversal of the conviction was required. E. b/c it may have removed form the prosecution some of its burden to prove beyond a reasonable doubt all elements of the crime charged • A reasonable jury could have interpreted the instruction as a legal command that was not rebuttable • The interpretation would have shifted a constitutionally required burden from the prosecutor.1282-1329. Thus. • County Court v.
Requisite Features of the Jury • 1. • C. nor does it transform the petty offense into a serious on. The max punishment was 6 months and court has authority to impose 5 year probationary sentence. • Note: • Petty offenses are not offenses where imprisonment for more than 6 months is authorized • Joinder of Multiple Petty Offenses: Lewis v. Florida • 6 person minimum . while the jury decides the weight to be given that is admitted. Size • Wiliiams vs. except in cases of impeachment shall be by Jury. it is generally resolved by the judge rather than the jury. SC held that question of materiality was for the jury. • The court held that Louisiana law. to which the jury-trial right would apply. the trial shall be at such place or places as the congress may by law have directed • Duncan v. Georgia . Held that the right to a jury trial is fundamental to the proper administration of justice • Juries serve several purposes in our criminal justice system. SC held that Blanton was controlling and therefore not allowed a jury trial claim. Louisiana • 6A right to a jury trial has been applied to the states via the 14A. D could have been subject to consecutive sentences if convicted of both counts. which is essential in a democratic society. The SC has recognized that juries also improve the fact-finding process. was unconstitutional. The Fundamental Right • Art 3 Sect 2 of the Constution provide that trill of all crimes. US • D was charged with 2 misdemeanor counts of obstructing the mails. • Penalties Other than Incarceration • Justice marshall relid upon prior cases for the proposition that the primary emphasis in assessing the right to jury trial is on the max authorized possible period of incarceration. and thus each was a petty offense. Where trial judge instructed the jury that D's statement were material within the meaning of the statute. which prohibited jury trials for non-felony cases. Primarily. The only limitation on jury size is that the jury must be large enough to ensure group deliberation and to provide a possibility of a representative cross-section of the community. • B. • Ex. What the Jury Decides • All element of a crime must be left for the jury and must be proved beyond a reasonable doubt • Ex. • Ballew v. Ech count carried a max prison term of 6 months. but when not committed within any state.• A. • Juries provide for public participation in the criminal justice system. The Court rinsed that the size of the jury had little impact on its ability to act as a buffer between the accused and the state. It is the judge who decides evidence was illegally obtained and should be excluded • The admissibility of evidence is generally a question for the judge. Operated a motor vehicle in a national park drunk. nor did the size of the jury diminish the community participation function of juries. juries serve as a check against arbitrary or vindictive law enforcement. • The fact tat the petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense.SC upheld a Florida jury system that permitted 6 person juries. and such trial shall be held in the state where the said crimes shall have been committed. • Therefore can't determine the seriousness of the offense through other penalties either than incarceration • Ex. • If an issue is collateral to the resolution of an element of the crime.
• 2. sex. and they might impair the accuracy of fact-finding. or nay other suspect classification • To establish a prima facie equal protection violation. Fed requires jury verdict sin fed criminal cases to be unanimous. D must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs • The burden then shifts to the state to rebut the inference of discrimination by showing neutral selection criteria • 6A independently requires that the jury be chosen from a fair cross-section of the community • Early Cases Establishing the Rights • Strauder v. they would diminish the chances of drawing a fair cross-section of the community. Most states still require unanimous verdicts as well. • Equal protection clause.court recognized the impact of the exclusion of a non-arcrelated group in a civil case. Court held that 5 person juries were unconstitutional b/c they would not provide effective group discussion. prohibits the exclusion from the jury pool on the basis of suspect classification such as race • 2.• • The minimum of jurors is 6. D.right to a unanimous verdict is so important that it is one of the few rights of a criminal defendant that canto under any circumstances be waived. and political groups . economic. Unanimity • Apodaca v. • Petitioner was convicted of various criminal charges by 3 separate. permitting waiver of unanimity.no violation of equal protection could be found in the exclusion of daily wage earners as they were not a suspect class. The Fair Cross-Section Requirement and The Equal Protection Clause • Two Separate Rights • Equal protection clause prohibits the selection or rejection of jurors on the basis of race. less than unanimous juries. • Notes: • Apodaca dealt only with state jury verdicts. The Interplay Between Size and Unanimity • Use of non-unanimous six person juries violated the right to jury trial in a state criminal trial for a non-petty offense deprives an accused of his constitutional right to trial by jury. • Waiver • US v. WV . Oregon • SC has approved the use of nonunanimous verdicts in state criminal cases. Ullah . Jury Selection and COmposition • 1. • Fair Cross-Section Requirement Does not APply to Petit Jury • No right to challenge a particular jury as failing to represent all social. Court held that systematic exclusion of daily wage earners from a fed court jury panel violated the fair cross-section requirement . • Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. Southern Pacific Co . but only in situations where the jury has been deliberating and is unable to come to an agreement • 3. can't they agree to non-unanimous verdict • 11th Cir. • But if parties can agree to opt for bench trial and disposes with jury entirely. The Jury Pool • 5A assures the D an impartial jury of the State and district wherein the crime shall have been committed.court struck down a state statute that excluded African-americans from grand and petit jury service as violating of the 14A Equal Protection Clause • Thiel v.
Regardless of how excusion occurred. People over 65 are not a distinctive group • Proper Sources for the Jury Pool • Usually prosecution may just use pool of licenses or registered voters. • There was a substantial under-representation of minorities in the jury venires in the district court. • Hartford is a city with a large minority population.not defined by any limiting factor as anyone could be a college student. the use of voter registration lists resulted in no resident of Hartford being included in the jury wheel used by the fed district court. College students are not distinctive group . a D need oonly show the under-representation of distinct and numerically significant community group. Louisiana • To make out a prima facie case of unconstitutional jury discrimination.set forth a test for determining whereto group is distinctive • D must show that the group is defined and limited by some factor (group has s definite composition such as race or sex) • A common threat or basic similarity in attitude. imposes restrictions on the composition of the petit jury. • The burden then shifts to the state to show that the inclusion of the underrepresented group would be incompatible with a significant state interest • Ex. • The Equal Protection Clause and not the Fair Cross Section Clause. • Standing to Object to a Fair-Cross Section Violation • Taylor v. Missouri • Court held that in order to establish a prima facie of fair cross-section requirement. • Distinctive Groups For Fair Cross-SEction Purposes • US v. 3. any systematic exclusion of significant and distinct community group from the venire (the large group form which jures are selected) states a caseu of action under the present test. • Ex. • The court emphasized that a violation of the cross-section guarantee can be found even if the government operated its selection procedures in good faith. their use is likely to be sustained. • Standards for Prima Facie Violation: Duren v. ideas. the D need not necdessasrily show an opportunity to discriminate in the jury selection process. • Everybody is Dead in Hartford • Voters lists failed to provide a fair cross-section in the jury pool. Variety of groups are represented in college classrooms. • Voter lists do not have racial identifications and are used as part of some nondiscriminatory selection scheme. Court found that prima facie case proved when half of the adults were women and only 15% placd on venires were women and woman could declined jury service by simply not reporting for jury duty while the man didn't have the same option.• • D is restricted to challenging the selection procedure as systematically excluding a cognizably group. • Ex. The fair cross-section requirement is applicable to the jury pool. Voire Dire and Court Control • Voir dire may be conducted in any of several methods . Fletcher . a d must show three things • Group excluded from the jury array is a disntictin group within the community • The representation of the group is the venire form which jurors are selected is not fair and reasonable in relation to the number of such persons in the community • This underrepresentation is the result of a systematic eclusion of the group in the jury selection process. but not to the ultimate petit jury that hears the D's case. or experience runs through the group • There is a community of interests among members of the group such that the group's interest can't be adequately represented if the group is excluded from the jury selection process.
Retsina v. Murray • Death sentence was invalid where the trial judge refused an African D's request to question prospective jurors on racial prejudice in a prosecution charging him with murdering a white man • A capital D accused of an interracial crime is entitled to have prospective jurors informed of the victim's race and is entitled to voir dire questioning regarding the issue of racial prejudice without showing any other special circumstances Voire Dire and the need to screen for prejudicial pretrial publicitly: mum's v. Trial judge refused • SC court held that 14A requied the judge in this case to interrogate the juror uon the subject of racial prejudice • The injury as to racial prejudice derives its constituiaonl stature from a principal purpose as well as from the language of those who adopted the 14A. against his inquires as to bias in general. • P was state prioress serving time for 1st degree murder when he was charged with capital murder while on work detail • The case was widely publicized and revealed the details of P's prior murder incarceration • D submitted proposed voir dire questions and asked for individual voir dire concerning the content of the publicity to which each prospective juror had been exposed • Prospective jurors who remained silent were considered to have asserted that they could remain fair • Judge Rehnquist distinguished the requirement of the Due Process Clause concerning voir dire in state trials from the more extensive supervisory power of fed courts over fed trials. US • It is usually best to allow the D to have the inquiry into racial or ethnic prejudice pursued but refused to require such an inquiry in all cases involving a D of a racial minority. A juror who answers affirmatively should be excluded for cause. b/c such a juror has indicated the same type of inability to follow jury .• • • • • • • By addressing all questions to the panel at one time or by addresssing each juror individually • By having the judge put questions to the juror or by allowing counsel to ask the questions • By allowing a broad inquiry into juror attitudes or by limiting the number and scope of questions that may be asked to the narrow issue presented in a specific case • Voir dire vests broad authority in the trial judge • The general practice in the fed system is for the judge to conduct the voir dire questioning of prosective jurors. Rino • In noncapital cases. does not reach the level of a constitutional violation. upon request. • He alleged that police officials had framed him b/c of his civil rights activities • He asked the judge to ask two questions relating to potential juror prejudice .active in the civil rights movement was charged with possession of marijuana. to ask potential jurors at voir dire if they would automatically give the death penalty upon a guilty verdict. 3rd related to prejudice against individuals with eards. Limits on Mandatory Inquiry into Race: Rosales-Lopez v. Capital Defendants and Interracial Crime: Turner v. the mere fact the D is lack and the victim is white is not enough to entitle the D to he special questioning of prospective jurors about racial prejudice.two related to prejudice against african-americans. Illinois: • If a jury is to decide whether a defendant in a capital case is to be sentenced to death. South Carolina • Young afican american . VA • Held that state trial judge is not obliged to question prospective jurors individually about the contents of pretrial publicity to which they may have been exposed. Voir dire and jurors' feelings about the death penalty • Morgan v. Questions Concerning Prejudice: Ham v. The trial judge's refusal to inquire as to particular bias against beards. the D must be allowed. and 4th related to pretrial publicity. • Failure to honor the D's request for questioning on racial prejudice is reversible error only if the circumstances indicate a reasonable possibility that racial or ethnic prejudice might have influenced the party.
voir dire of jurors individually has been reuqied in three situations in fed courts. 4. Gramley Irwin v. Stuart . that may stop short of aneed for a change of venue but may nonetheless affect the trial such as child abuse or narcotics distribution • Where testimony from law enforcement agents is important in the case and is likely to be overturned. MillerEl v. a prosecutor may generally exercise peremptory challenges for any rational or irrational reason. • Where a case has racial overtones • Where the case involves matters concerning which the local community is known to harbor strong feelings. The parties also have a limited number of preemptory strikes. B/c of personal interest in the case). The Equal Protection ZClause forbids the use of preemptory challenges to exclude potentialy jurors solely on account of their race or gender. Kentucky Use of peremptory challenges for racial or gender-based exclusion Under most jury selection systems. Florida Press Association v. In contrast to striking potential jurors for cause. Dowd Chandler v.instructions (as to mitigating circumstances) as a juror who has indicated an inability to impose the death penalty under any circumstances. Challenges for cause Batson v. • Voir dire and the federal supervisory power • The regulation of voir dire under the fed supervisory power is more rigorous than that required by the Constitution. although trial judges have significant discretion as to how to frame the questions. the parties may strike an unlimited number of potential jurors if ther is ground to believe that they can't properly perform (ex. Dretke Bracy v. • Generally speaking.
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