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Presumption of guilt (relies on police to winnow) i. Problems: 1) Tunnel vision; focus on the individual and ignoring alternative suspects, etc 2) Confirmation bias: false confessions; wrongful convictions c. Ex: assembly line d. Lawyers i. aren't wanted in early stages; lawyer acts to "sanctify" and legitimize the proc ess e. Relies heavily on (police) discretion (as opposed to procedural rules); i.e. tot ality of the circumstances (discretion) 2) Due Process Model a. Concerned with reliability; quality control b.
Presumption of innocence i. Relies more heavily on formal factfinding by judiciary, rather than informal fac tfinding of administrative; police ii. Facilitates equality (between individual & state) c. Safeguard against the arbitrary deprivation of liberty by state d. Lawyers i. Ensure equality against state/adversarial ii. Watchdog of the system; ensures that the rules are being adhered to e. Relies on procedural rules i. Recognition that system can't give close scrutiny to each case and therefore sho uld apply per se rules I. ARREST, PROBABLE CAUSE, SEARCH WARRANTS a. 4th Amendment:"The right of the people to be secure in their persons, houses, pa pers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and part icularly describingthe place to be searched, and the persons or things to be seized i. 4th amendment applies to both searches, seizures, and arrests ii. Warrant required: before a search or seizure takes place, unlessexigent
circumstances; arrest warrant is usually NOT constitutionally required iii. Search must be reasonable: whether or not there is a search warrant or arrest warrant; must not be "unreasonable" iv. Probable causefor warrantless search or arrest: no requirement in the 4th for probable cause for search/seizure; e.g. stop and frisk b. AREAS AND PEOPLE PROTECTED BY 4TH AMENDMENT i. Katz "Expectation of Privacy" doctrine: search/seizure takes place when a person 's "reasonable expectation of privacy"has been violated 1) Katz Test: i) Actual, subjective expectation of privacy by person ii) Expectation of privacy recognized by society as being "reasonable" 2) Waiver of Privacy right:
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2) Waiver of Privacy right: a) Abadoned property, such as trash b) Things seen by aerial overview or from public property c) Thing said or done in public d) Information attained by suing other senses while in a place the police have right to be 3) Trespass significance:more likely to violate expectation of privacy but not dispositive 4) Curtilage:land or ancillary buildings associated with dwelling a) Generally have REoP, but not in open fields outside curtilage 5) Third Party transfer doctrine:transfer of property/information to a 3rd party may eliminate any REoP a) Phone numbers:no REoP to the numbers called because knowledge of the number is transferred to phone company 6) Trash/abandoned property:on curb for pickup, can be searched without a warrant [California v. Greenwood] a) Trash on own property:police probably cannot enter property to inspect 7) Special contexts: a)
Jail cell:no legitimate expectation of privacy [Hudson v. Palmer] b) Guests:consider time and business/social i) Overnight social guest:normally, has REoP; however, owner may consent and guest screwed ii) Social guest not staying overnight:probably has REoP iii) Business guest:less likely to have REoP; consider time on premises c. THE "PLAIN VIEW" DOCTRINE i. Generally:no 4th amendment searc where an object is in plain viewof an officer w ho has a right to be in the position to have that view ii. Distinguished from seizure:right to plain view an item does not necessarily mean right to seize iii. Mechanical Devices:police on public property using devices to obtain the view of property 1) Flashlight:not 4th amendment search [Texas v. Brown] 2) Electronic beeper:not 4th amendment search/seizure iv. High-tech devices: may be a search when... 1) Not in general civilian use and employed from public place to 2) Gain views that could not be obtained by naked eye[Kyllo v. US]
anythi ng the police can see with the naked eyefalls within plain view doctrine as long as aircraft is in public. Rile y] vi. Police lawfully on owner's property:plain view applies d. PROBABLY CAUSE GENERALLY i. no right to manipulate luggage. Probable cause applies when: 1) Before a judge/magistrate may issue a warrantfor a search/arrest. must have PC 2) Before the police may make a warrantlesssearch or arrest crimpro Page 2 . Aerial Observation:when police use an aircraft to view property from air.v. no legitimate REoP [Illinois v. navigable airspace[California v. Other senses: 1) Smell:can smell or use dogs to smell usually. Ciraolo. around car. US. and so no right to open luggage] vii. Florida v. Caballes] 2) Touch:something that feels like contraband during pat-down. esp. can probably seizre a) Must have right to search in the first place though [Bond v.
can be used to determine PC iv.: 1/3 chance of fact X can constitute PC [Maryland v. Only evidence heard by magistrate used: facts presented to the magistrate are judged to determine PC 1) Perjured affidavit:if D can show by preponderance of the evidence that affidavit used to get warrant contained perjuryor "reckless disregard for the truth"the warrant will be invalidated(assuming rest of affidavit doesn't contain materials sufficient to constitute PC) [Franks v.g. and ii) These items will be found in the place to be searched 3) Less than 50-50 chance required:only need particularized suspicion i) e. Any info. Requirements for PC 1) To arrest:reasonably likely that i) A violation of the lawhas been committed. and ii) The personto be arrested committedthe violation 2) To search:reasonably likely that i) The specific items to be searched for are connectedwith criminal activities. Pringle] iii. Delaware] . even if inadmissible at trial.2) Before the police may make a warrantlesssearch or arrest ii.
i) D must show actual perjury or reckless disregard for the truth. Ohio] 1) Flight of suspect 2) Physical clues 3) Voluntary admissionby suspect 4) Suspicious or surreptitious conduct 5) A suspect's previous criminal record 6) A suspect's presence in a high-crime area ii. Gates] 2) Aguilar/Spinelli Factors: i) . Officer's Observations: [Beck v. Informants: 1) Illinois v. Garrison] iii) e. merely inaccurate material is not sufficient ii) Honest police error: honest and reasonable error will not render warrant invalid [Maryland v. Gates:providing info for probable cause is determined by "totality o f the circumstances"[Illinois v. PARTICULAR INFORMATION ESTBALISHING PROBABLE CAUSE i.
signed aff idavit iii. Particular description:warrant must have particular description of the premises to be searched. detatched from law-enforcement side of gov't ii. so long as combined with factual statementsabout suspect's past criminal activity iv. original officer probably needs PC f. SEARCH WARRANTS -ISSUANCE and EXECUTION i. even if informant's info alone wasn't sufficient iii. Suspect's criminal reputation:can be considered in determining PC [US v Harris]. Ex parte: iv.Reliabilityof the witness ii) Witness' basis of knowledgefor having the info 3) Strong factor can buttress weak one 4) Prediction of future events:can corroborateinformant's story to establish PC. and the things to be seized crimpro Page 3 . usually judge/magistrate 1) Neutrality:must be a neutral party. Affidavit:req. establishment of probable cause with facts in written. Non-criminal sources:if police officer is original source and tells another offi cer. Who may issue:judicial officer.
Maryland] vi. The Stanford Daily] vii. could be search for various types of documents "together w/ other fruits.if there is PC to believe search will produce evidence 1) Subpoena not necessary: [Zurcher v. and evidence of [this particular] crime". Maryland] ii) Contraband:property. instrumentalities. What may be seized:any object that is subject of a valid search warrant 1) Incriminating evidence:any evidence which incriminates may be seized [Warden v. and the things to be seized 1) Description of place: to be searched. so long as warrant isn't fatally vague[Andresen v. does not need to be described as particularly as material which is innocuous on its face (officer able to identify contraband) v.searched. Robinson test:(1) enables officer to locate and identify premises w/ reaosnable effort ii) Any reasonable probaility that another premises might be mistakenly searched 2) Things to be seized: specifically identify items i) Not so strict:e. Hayden] 2) Documents with incriminating statements:no 5th amendment interest and can be seized [Andresen v. . precise enough that officer knows where to search i) Lyons v.g. Warrants against non-suspects:4th amendment permits search of people who are not criminal suspects. the possession of which is a crime.
Execution of Warrants:procedures in carrying out must not be unreasonable 1) Knock and announce:general rule. Illinois] 5) Restricted area of search:must confine search to area specifiedin warrant.may not be searched or detained[Ybarra v.g. with no apparent connection to criminal activity giving rise to warrant or iitems in warrant. won't be in tiny drawers] 6) Seizure of unnamed itemsin plain view:may seize items not listed in warrantwhich appear relevant to a crime [plain view] . without giving occupant enough time to get to door 4) Search of persons on premises: may not automaticallysearch everyone on premises i) Named items on persons:if PC to believe a person has on his personan item in the search warrant. No-Knock: i) Threat of immediate destruction of evidence ii) Physical danger to police: if there is possibility that physical danger to police. and items in warrant are such that they might be carried away. must first announce presence and wait a reasonable time for response 2) Entry without notice. might justify no-knock 3) Where no response or denied entry:police may use forceto break in i) Need not wait for an answer: if there is risk of destruction of evidence. looking for rifle. police may search iii) Persons unrelated to search: if person simply happens to be on premises. may search him ii) Person attempting to leave: if person is attempting to leave. and must only look in places where items sought might be concealed [e.
contraband: yes iii) Inadvertance:not required. weigh individual's interest in privacy against society's interest in conducting the search i) Allowable procedures:taking of blood from drunks. can discover and seize weapons under plain view [Horton v.g. must be reasonable. e. California] 7) Bodily intrusions:search of a person. x-rays and stomach crimpro Page 4 .i) Incriminating evidence:sufficiently connected to crime ii) Unrelated.
REVIEW OF WARRANT ON MOTION TO SUPPRESS after Gates and Leon a. x-rays and stomach pumping to obtain concealed drugs ii) Surgery:not allowed. to remove a bullet lodged in chest to show involvement in robbery. the reviewing judge must then ask whether the officers acted with objective good faith. but erroneously. Substantial basis Test for judge/magistrate:review magistrate's totality of the circumstances" decision on motion to suppress by looking to see if there is "sub stantial basis" for concluding PC b. lee] 8) Good Faith exception:if police reasonably.i) Allowable procedures:taking of blood from drunks. c.g. believethat the warrant is valid. or with reckless disregardto their truth. exclusionary rule will not apply II. and (2) . Leon& Gates: Gatespreceded Leon after Leon the court reviewing the motion to suppr ess must ask two questions: (1) Substantial Basis (Gates) applied to magistrate/judge: Did the issuing magistrate have a substantial basis for concluding there was probable case did the totality of circum stances (including veracity/validity) indicate probable cause? (2) Objective Good Faith (Leon) applied to officers: If NOT. e. Franks v Delaware(p. not allowed [winston v. 185) Procedural Steps to Challenge Warrant: (1) D makes a substantial preliminary showing that the statements in a search warran t affidavit were intentionally and knowingly false.
probable caus e. will the fruits of the search be excluded. required only when police need to enter a private hometo make an arrest and there are no exigent circumstances 2) Search warrants:generally required. the D can show by a preponderance of the evidence that the stm t was indeed false thenthe false stmt will be set aside and (4) the affidavit s remaining content will be analyzed to see if it est. at the hearing. inventory checks?) iv) Consents v) Stop and frisk:partial searches vi) . I. Warrant not always required 1) Arrest warrants: generally not required. If it does not. WARRANTLESS ARRESTS AND SEARCHES a. (3) If. only in special exceptions will search warrant requirement be dispensed with i) Search incident to valid arrest ii) Exigent circumstances iii) Some automobile searches (e. and only then.g. Introduction: i.if the allegedly false stmt was necessaryto the finding of probable cause a heari ng will be held at the D s request. then.
S.) b. etc. v. No exception for fine-only or other minor crimes crimpro Page 5 . Generally not required. immigration searches. NY] i) Violating arrest will not prevent D from being brought to trial i) However. will need a warrant[Payton v. Entry of Dwelling:arrest on private premises 1) No exigent circumstances:police may not enter private home and arrest w/o exigent circumstances. Warrantless Arrests i. any evidence seizedas a result of in-house arrest that required warrant will be excluded 2) Exigent circumstances:no warrant necessary for private. in-house arrest i) Destruction of evidence ii) Hot pursuit iii.Regulatory searches/inspections(sobriety checkpoints. Watson] ii. even with sufficient advance notice:[U.
Buie] c. but was PC for offense B (police has facts sufficient to suppor t PC for offense B). turns out no PC. Automobile searches incident to arrest:generally can't search passenger compartm ent incident to arrest of driver [Arizona v. it's okay [Devenpeck v. police may conduct protective sweep of all or p art of premisesif they have reasonable beliefbased on specific and articulable factstha t another personwho might be dangerous to the officer may be present in the areas to be sw ept [Maryland v. No exception for fine-only or other minor crimes iv. SEARCH INCIDENT TO ARREST a. Limited area around defendant:may search area within D's immediate control b. Alford] 1) Search Incident to Arrest will be valid v. Use of deadly force: 1) May not use if suspect poses no immediate threatto officer or others 2) May use if suspect poses immediate threatto officer others. Probable cause need not be for offense stated at time of arrest:arrest for offen se A. Protective sweep:arrest in home. may also use deadly forceinstead of abandoning chase II.iii. Gant] i. Two part rule:can search passenger compartment if one of two things is true 1) .
then arrest and search aren't justified (unless other rationale supports exception to . applies even if stop/and/or/arrest is not for the same crime f. Prior to Gant. Ross]. OR 2) Police reasonable believe passenger compartment might have evidence of the offense for which the arrest is being made[Arizona v. if arrest is without PC. Gant] ii. Kentucky] g. Potentially dangerous driver: 1) When not yet arrested. Legality of arrest:SIA doctrine applies only when arrest is legal. because police put driver in patrol car). Brief protective search. under stop-and-frisk doctrine(SIA and Gant don't apply because not yet arrested) ii. Contemporaneity of Search: SIA need not occur exactly at same time. Traffic arrest where driver is handcuffed:unlikely to satisfy the first componen t of Gant rule e. Probable Cause to search:if police stop car. Other opportunities to search car: i. whether they make arrest or not. police could search entire passenger compartment incident ot arre st d.Arrestee has access to passenger's compartmentat the moment of search (rare. logically speaking i. might have access to car and weapon. Can make search before they arrest D. if they have probable causeto believe there is contraband or other evidence of crimethey can search any partof the vehicle where the evidence might plausibly be found[US v. so long as they have PC to arrest and are doing search protectively [Rawlings v. can occur so metime after as long as it is closely connected.
Stuart] crimpro Page 6 . Hot pursuit of suspect b.S. May be asked to step out of car and could be subject to cursory frisk [stop-andfrisk] III. Destruction of evidence:can conduct a search/seizure without warrant.warrant req. destruction of evidence] h. SIA applicable even to traffic violations [ U.g. Applicable even to minor crimes:e. v. Preventing harm to persons iii. e. EXIGENT CIRCUMSTANCES a. Danger to life:to prevent danger to life [Brigham City v. Robinson] i.g. McArthur] c. if they ha ve PC and need to prevent possible imminent destruction of evidence [Illinois v. Preventing imminent destruction of evidence ii. Must be a "custodial arrest" with intent to book at stationhouse ii. Examples: i.
but these a re additional special car contextual search stuff b. Officer must not have violated the 4th amendment in arriving at the placefrom wh ich items are viewed ii. AUTOMOBILE SEARCHES a. Incident to arrest:reasonable belief that car may contain evidence.c. Danger to life:to prevent danger to life [Brigham City v. . Previous exceptions above will probably also apply in cases of cars. Entry to arrest non-resident:if no hot pursuit. Requirements: i. Stuart] d. Exigent circumstances:will suspend warrant requirement c. may search [ Gant] d. The officers have a lawful right of access to the object(seeing something throug h a window from the street. po lice CANNOT enter one person's private dwelling to arrest another IV. Incriminating nature of the items is immediately apparent(PC to believe item is incriminating) iii. Two special exceptions: i. still don't have lawful right of access to it) V. and no exigent circumstances. "PLAIN VIEW" DOCTRINE AND SEIZURE OF EVIDENCE a.
Can make step out of vehicle ii. Acevedo] e. may search any container that might have what he's l ooking for. Ross. v. even if it belongs to the passengerand even w/o PC to believe container has that thing g. . PC to believe passenger has evidence of a crime ii. Houghton] 2) Probable cause for container only:even if police have PC solely for a container in car. Carney] 1) Passenger's belongings: Once there is PC to believe car contains contraband or evidence of crime:police can search closed containers inside it or belonging to passengers. If right to search vehicle. even if no PC to believe passenger is carrying contraband [Wyoming v. Maroney] ii. PC to arrest the passenger(in which case SIA) f. Frisk pat down if reasonable belief of danger iii. Actions directed at passengers: if driver's conduct leads police to make proper stop/arrest. Calif. v. Officer's rights regarding passengers: i. Field search for contraband or evidence:where PC to believe car is transporting contraband or evidence of crimemay search on the scene[US v. can't search passenger unless officer has: i. may stop car and seize and open the container w/o warrant [Calif.Search at stationhouse w/o warrant:search at stationhouse valid becaues police c ould have easily gotten warrant [Chambers v. and not car itself.
even if they didn't have PC to search/seize iii.Lack of PC: i. belief they will find incriminating evidence or contraband) ii. Impoundment:impoundment by standardized procedures allow for search of automobile without PC (e. PC needed if searched on scene(i. Opperman] 1) Containers in cars: even closed containers can be searched without warrant or PC during inventory search 2) Standardized procedures and Good Faith:warrantless inventory searches must satisfy two conditions: i) Standardized procedure must not give unbridled discretion to searcher ii) Police must not act in bad faith or for sole purpose of investigation crimpro Page 7 .g. even towed cars for illegal parking) [South Dakota v .e. Plain view:may seize evidence in "plain view" while impounding it.
(1) False claim of authority to searchor (2) threats of future actionmay negate voluntariness ii. CONSENT SEARCHES GENERALLY a. consent is invalid v. False claim of present authority to search (lying about warrant):consent is inva lid[Bumper v NC] iv. Bustamonte] (even while in custody) i. but warrant is invalid. but probably depends on whether police actuall y have ability to get warrant . D need not know he can refuse:consent is effectiveeven if the person did not kno w she had right to refuse consentto search [Schneckloth v. Claims of authority to search: i. Measure voluntary through "totality of the circumstances"analysis c. Generally:can perform warrantless search w/ consent b. Threat to obtain warrant:unclear. Must be voluntaryconsent ii. falsely claiming authority to search more likely to negate voluntariness than th reat of future action iii.ii) Police must not act in bad faith or for sole purpose of investigation[Colorado v . Consent induced by reference to invalid warrant:if police are truthful about hav ing warrant. Bertine] VI.
Physical scope of search:if applying to a partial physical areathen consent does not extend beyond i. Reasonable Mistake:third-party consent is binding. 3rd party owns a rifle that is to be seized. Plain view exception:seeing something in another area may allow plain view doctr ine applicability for seizure VII.. CONSENT BY 3RD PERSONS a. Agency:authorized party can give consent ii. Randolph ] c. at least where D and 3rd party have equal claim on premises [Georgia v. D is present and objects when 3rd person consents:3rd party consent is not bindi ng on D. D gives a duffle bag to 3rd party. Property of consenter:e. so long as it is a reasonable mistake b.d. Other theories: i. Matlock] i. D is absent when 3rd person consents:where D is absent and police ask 3rd person to search jointly-controlled premises. police pretending to be meter reader allowed o n property.g.g. and 3rd party consent . Misrepresentaiton of idenity:e. even if police are mistaken a bout joint authority over the presmises. valid iii. consent is effectiveif that 3rd party (1) ac tually has or (2) is reasonably believedby police to have joint authority over the premises [US v. Assumption of risk:e.g. consent is valid e.
s to police search of bag. but may give validc onsent to search common usage areas ii. but may allow them in front door and "plain view" doctrine may apply e. Relatives: i. closet used only by D. lovers:spousal consent will usually be valid[Matlock] 1) Personal effects:exception may be the search of personal effectsstored in an area. wives. Cupp] d. invalid. invalid. valid[Frazier v. Other situations: i. Employer:may give valid consent to search work area for items related to job. may be invalid ii. bu t notto areas used to store personal effects crimpro Page 8 . Parent/child:parents may generally give validconsent to search child's room 1) Consent by child:normally unable to give consent to full-scale search of parents' house. Husbands. drawer. Landlords:may not consent to search tenant's rooms.
Texas] b. i. Johnson] c. Stop of vehicle:stop and frisk doctrine applies to vehicle stops i. Right to stop:where police observes unsual conduct. Protective frisk:after stop. if initial encounter doesn't dispel reasonable susp icion 1) May conduct carefully limited search of the outer clothingof the suspect in an attempt to discover weapons. Wilson] 1) Pat-down of non-suspect passenger:if car properly stopped and occupants temporarily detained. Mimms. reasonable suspicion base d on objective facts d. Maryland v. reasonable suspicionbas ed on objective factsthat individual is involved in criminal activity ii. which may be seized[Terry v. Degree of probability required:something less than PC.VIII. v. Ohio. General rule:stop-and-frisk doctrine allows police to "stop" and/or "frisk" peop le i. police are entitled to do pat-downof any passenger even if there is no reason to suspect them of wrongdoingas long as police have reasonable suspicion that the passenger may be armed and dangerous[Arizona v. Suspect and passengers required to leave car:once officer conducts a justified " stop of a vehicle.e. Brown v. . STOP-AND-FRISK and OTHER BRIEF DETENTIONS a. Flight as a cause for suspicion:will normally raise police's suspicion and may e ven justify Terry-stop e. officer may require individuals to leave the car [Penn.
stop turns into arrest (for stopneedreasonable suspicion. Arrest: if sufficiently long and intrusive.Informant's tip:may be justified not just by officer's observations. Mendenhall] 1) Examples: i) Threatening presence of officers ii) Display of weapon by an officer iii) Physical touching of the person iv) Use of language or tone of voice indicating officer's desire to compel 2) Chase is not itself a seizureuntil suspect submits g. but by info rmant's tip ("totality of circumstances" analysis of tip) i. Knowledge of hidden criminality:where tip is anonymous. Stop vs. What constitutes a stop:not every encounter with police is a stop i. police must have reason to believe that informant's knowledge about suspect's criminal conductis reliable f. Tip predicts future events?:something someone without inside information wouldn' t know ii. Factors 1) . "reasonable person" test:reasonable personwould believe that he was not free to leave[US v. for arrestneed probable cause) i.
uniliekly to be "reasonable suspic ion based on specific and articulable facts" that weapons may be found in car. police may search for weapons in passenger compartmenteven if suspect isn't in car. Search of automobile:when police make a "stop" of a perosn in a car. Only search passenger compartment where weapons may be placed or hidden iii. cigarette pack w/ heroin in it [Ybarra v. reasonably believe driver is dangerous and may gain control of weapons in car ii. Scope of permissible frisk:must belimited to weapons or other sources of danger. Armed or dangerous:need reasonable belief that individual is armed or dangerous i. if they think i. Limited application:during traffic violation. Illinois] i.No longerthan reasonable necessary 2) No more intrusivethan reasonably necessary (to verify/dispel officer's suspicions) 3) Transportationof D to somewhere else (likely to turn stop into arrest) h. may NOT be to search for contraband or other incriminating evidence. UNLES S crimpro Page 9 .g. e.
Municipal Court] i. Detention during house arrest:when police are searching a residencefor contraban d pursuant to a search warrantthey may detain the occupantswhile the search contin ues [Michigan v Summers] i. Mena] IX. UNLES S police find weapons on person or see plain view weapon in car j. and fire inspections require a search warrant [Camara v. warrantless ins pection search may be allowed (e. need only show inspection is part of a general area inspectionand not a particular premises ii. if searching for weaponsmay use handcuffingto carry out [Muehler v. healthy.e. Interior patrols and checkpoints:reasonable suspicion required 1) Vehicle not known to have recently crossed border may be stopped and search only with probable causeto believe aliens/smuggles present [Almeida-Sanchez] 2) .based on specific and articulable facts" that weapons may be found in car. safety. weapons dealers) b. handcuffs:may use reasonable forceto carry out this detention.g. Special licensed business:if subject to special licensing rules. Use of force. Inspections:i. Border searches:may search baggage/vehicles w/o probable cause and w/o warrant [Almeida-Sanchez] ii. INSPECTIONS AND WEAPONS SEARCHES a. Immigration searches: i. Probable cause not required:inspectdoesn't need PCto get warrant.
Routine Traffic Stops:for regulator purposes (is car licensed and registered?) i. when acting alone and not in concert with . Wisconsin]. Wolfish] ii. No general crime-fighting:may not set up checkpoints for general crimefighting objectives like narcotics detection d.Roving patrol:stopping car to ask Q's doesn't require PC. Prouse] 1) May also set up roadblocks to find witnesses to crime [Illinois v. Check-point:drunkeness. Parolees/probationers:may be subjected to warrantless searches even if PC is lac king [Griffin v. probably vehicle registered [Delaware v. Martinez-Fuerte] c. Other contexts: i. must be conducted pursuant to a valid regulation 1) Search on street:may be stopped/searched without warrant/PC even if officer has no grounds to suspect wrongdoing at all 2) Pre-trial detainee:may search cell and sometimes body cavity w/o PC or warrant. probably licensed. Random stops:Need suspicion of wrongdoing based on objective standard to randomly stop cars [Delaware v. if Q's give rise to additiona suspicion. diminished expecation of privacy[Bell v. Searches in schools: 1) School official:may search. may be referred to second questioning location or searched [US v. lidster] iii. Prouse] ii. however need reasonable suspicionthat violation has occurred 3) Fixed check-point: all cars may be stopped for brief immigration-related questioning.
require only reasonable grounds for suspectingthat search will turn up evidence of violating school rules. ther e crimpro Page 10 . ELECTRONIC SURVEILLANCE AND SECRET AGENTS a. probably 4th amendment applies 2) Drug tests for participants in competivie extracurricular activites:allowed. fact that it is located outside of an individual's premises makes no di fference 1) Participant monitoring: if one of the parties in the conversation consents. v. Normally 4th amendment searches:so long as there is a reasonable expectation of privacy. Earls] X. if not shared with police [Bd. search a student or premises of student w/o a warrant. of Ed. Wiretapping and bugging: i.not clear when authorities are involved.authorities.
vitiated any expectation of privacy c. Note on right to counsel:use of bugged or unbugged agent who has already been in dictedmay violate the suspects sixth amendment right to counsel i. no reasonable expectation of privacy whi ch has been violated d. Confession require: i. Bugged Agents:misplaced trust doctrine. ther e is no 4th amendment problem b. Voluntariness:regardless of miranda. Secret Agents:where undercover agent has direct contactwith suspect where suspec t doesn't realizehe is dealing with someone helping gov't i. confession only admissible if given volunta rily . Law:neither bugger nor unbuggedsecret agents pose 4th amendment problem. CONFESSIONS AND POLICE INTERROGATION a. Miranda warnings b.1) Participant monitoring: if one of the parties in the conversation consents. Violation to deliberately elicit incriminating evidence in the absence of counse l e. Voluntariness ii. so long as suspect is aware that the agent is present. Entrapment:induce to commit a crime they weren't already predisposed to commit XI.
Miranda Generally: i.i. Collateral use:involuntary confession obtained by police coercion cannot be used in case-in-chiefand cannot be used to impeachD's testimony c. Inadmissibilty: statement obtained in violaiton is inadmissible as prosecution evidence. even if "voluntary" . Warnings required:don't need to be specifically these warnings. variation that m eets constitutional requirements of Miranda are sufficient 1) Remain silent 2) Anything say used against himin court of law 3) Right to presence of an attorney 4) If can't afford. Is there police coercion?:coercion by non-gov't actors or mental illness are sti ll voluntary [Colorad v. Applicable when: 1) Custody:necessary only when suspect taken into custody 2) Interrogation:applies only when confession comes as result of questioning 3) Authorities:applies only where both questioningand custodyby the policeor other lawenforcementauthorities ii. then one will be appointed for himprior to questioning iii. Connelly] ii.
silence is not a waiver vi. free to leave i. reasonable suspec t doesn't crimpro Page 11 . Undercover Agent: if talking to undercover agent or informant. Custody test:the "reasonable suspect"test: whether a reasonable person in the su spect's position would believe that he was (or was not) in custody at that moment.e. usable for impeachment iv. Waiver: may be waived if(1) knowingly and (2) intelligently made. not 6th's right to counsel vii. Exercisable at anytime during questioning:can assert or change after waiver and then assert at any time and interrogation must cease v. no duty to obtain lawyer. Officer's subjective intent irrelevant: b.1) Impeachment use:not usable in case-in-chief. WHAT CONSTITUTES CUSTODIAL?: a. Right to counsel: 1) Right to appoint ocunsel applies ony where questioning occurs. i. Fifth amendment basis:Miranda based on 5th amendment right against selfincrimination. but cannot question him 2) Right to have lawyer present during interrogation:not to just consult. but have present XII.
Place of interrogation:important in determining if "custody" exists i. reasonable suspec t doesn't think he is custody. for example 1) Arrest:clearly under custody 2) Placed in patrol car:clearly in custody 3) Voluntary station-house questioning:not normally in custody.b. Perkins] c. therefore not entitled to Miranda warnings [Oregon v. Mathiason] i) Lack of formal arrest no dispositive ii. unless police seizre a suspect from fleeing iii. At home:unlikely to be custodial XIII. Volunteered statements:volunteered statements. even if he is in jail [Illinois v. D acts suspiciously:seizing a person for acting suspiciously not usually custodi al iv. Station-house:more likely to be custodial than someone's home. spontaneous statements. Undercover Agent: if talking to undercover agent or informant. Street encounters:questioning near scene of crime generally don't require Mirand a. WHAT CONSTITUTES INTERROGATION? a. Traffic Stops: stops of motorists for minor traffic violations normally not cust odial v. not cover ed by .
Public safety exception: see below f. Mauro] i. Interrogation booking exception questions:routine booking questions unlikely to require Miranda warnings [Testimonial v. PUBLIC SAFETY EXCEPTION TO MIRANDA a. Testimonial:requires D to produce answer in some way. probation officers. Non-testimonial evidence] i. Generally:Miranda warnings unnecessarywhere the questioning is reasonably prompt ed by a concern for public safety[NY v. Quarles] i. Police allow situation to develop:if police allow meeting between D and spouse w here D incriminates himself. unlikely to find interrogation [Arizona v. Innis] c. Indirect questioning:interrogation test: occurs when words or acts on the part o f police that the police should know are reasonably likely to elicit an incriminating res ponse from the suspect[Rhode Island v. Objective standard:reasonable officer in that position would conclude there is a threat .Miranda b. IRS (PROBABLY) XIV. Questions by non-police:investigators/victims (NO miranda needed). Non-testimonial:physical e. cognitive exercise ii. interrogation more likely d. Police set up situation:police set up situation where D may incriminate himself. other law enforcement officials..
may exclude on basis of lack of voluntariness XV. WAIVER OF MIRANDA RIGHTS a. Silence:not sufficient to constitute waiver iii. Express waiver:normally in form of writing. v .ii. waiver of Miranda will still be effective even if police decline to tell himthat the lawyer has been retained [Moran v. signed b. Refusal to sign waiver form:does not necessarily negate waiver [NC v. Implied waiver:words or conduct suggestthat he has decided to relinquish those r ights. Refusal to sign statement w/o lawyer:does not necessarily negate waiver [Conn. Butler] iv. May still show involuntariness/compulsion:if he can show compulsion. aware of his Miranda rights and right to refuse to wai ve ii. Burden of proof: knowing. scrutinized by courts i. Burbine] vi. Barrett] v. Ignorance of charges:no obligation to notifyD accurately of the charges against him crimpro Page 12 . Retained lawyer not consulted:where layer has been retained for himby suspect's family.
Mosley] 2) Same crime:probably depends on ending questions promptly.vi. probably valid despite first interrogation [Michigan v. new location. length of time after 3) Mosley Factors: i) Ceased interrogation immediately ii) Sufficient period of time between interrogations iii) Fresh set of Miranda warnings ii. so long as police don't coerceD [Colorado v. if D waives Miranda warnings in second. Mentally ill defendant:waiver OK. Invocation of Right to remain silent in 1st session: 1) Different crime:even though silence invoked in first. Ignorance of charges:no obligation to notifyD accurately of the charges against him or content of questioning (not clear if police affirmatively misrepresent nature of questioning) vii. must not be subject to further interrogation until counsel is available. Multiple Interrogation Session: i. Arizona] 1) Response to questioning:mere fact D responds to later questioning does not . Invocation of Right to counsel in 1st session:if D expresses desire to have lawy er. OR accu ssed himself initiatesfurther communication [Edwards v. Connelly] c.
Requirement:suspect must show desireto open up a more generalized discussion related directly or indirectly to the investigation Totality of the circumstances: .g. don't need to ask clarifying questions [ Davis v. Mississippi] 5) . crime:applies even w/ different crimes [Arizona v. not admissible. lawyer must be present [Minnick v.indicate waiver [Edwards]. reasonable officer standard 4) Lawyer must be present:consultation is not sufficient. and therefore don't permit interrogation to begin again e. US]. [Oregon v Bradshaw below] Routine request:Statements or requests by suspect that are routineand don't trigger EDWARDSinitation. Doesn't automatically follow that any statement is admissible. judged by the totality of the circumstances 2) Questioning about diff. police don't need to stop. TWO STEP PROCESS: after a suspect initially requests a lawyer i) Did the suspect initiate discussion with the police. Roberson] 3) Request for lawyer must be unambiguous:if ambiguous. request for a drink of water or to use the phone are "routine incidents of the custodial relationship" . indicating desire to talk about investigation ii) Was there a knowing and intelligent waiver of the right to counsel.. waiver to the right to counsel must be "knowing and intelligent" when viewed by reference to the traditional "totality of the circumstances" standard .
Pre-arrest silence:applies only to silence after arrest. Use of D's silence: i. fingerprints. vo ice prtins. blood samples. silence before arrest XVII. Generally not allowed:may not introduce that D remained silent ii. Various procedures: for identification. lineups. Lineups and Other Pre-trial procedures: a. crimpro Page 13 .Waiving all rights at first session:probably not required to repeat warnings at subsequent XVI. OTHER MIRANDA ISSUES a.
blood sample & drunk] d. is there substantial likelihood of irreparable misidentification Factors: . Accuracy of description . photographs. Degree of attention . Reliability is Linchpin in Determining Admissibility of Identification Testimony [Braithwait]. California. Possible constiutional problems: i. If lawyer wasn't present for procedure:6th iv. Unreasonable search or seizure: 4th iii. Procedure was so suggestive:14th c. fingerprints. Opportunity to view . Physical Identification Procedures:will not trigger self-incrimination i. Various procedures: for identification. Self-incrimination: 5th ii. blood samples. lineups. Requires "testimony or communicative" evidence:to trigger self-incrimination [Schmerber v. vo ice prtins. Witness' level of certainty . etc b.a.
Illi nois] 1) e. indicted.g. but maybe not if arrested w/o warrantand t hen put in lineup or show-up ii. including lineupsand showups(show only suspect) [US v.: formally charged. e. 2) Probably triggered by arrest warrant. Waiver:right to counsel at pre-trial confrontation must be waived d. Gilbert v. Before formal proceedings against D:right to counsel applies only to confrontati ons occuring after institution of formal proceedingsagainst a suspect [Kirby v. Ash] 1) . Rule:absolute rightto have counsel presentat any pre-trial confrontationprocedur e. Exceptions to right: i. given preliminary hearing. If improper lineup: prosecution will need to show by "clear and convincing evide nce"that the in-court identification is not the "fruit of the poisonous tree" (not the pr oduct of the improper lineup identification) c. Californ ia] b. or otherwise subjected to formal judiciary proceedings. Time between crime and confrontation . Wade. Photo-ID:no right to counsel where witness views still or moving picturesof the suspect for identification [US v. arraigned. Stovall test:totality of the circumstances surrounding confrontation XVIII. Right to Counsel at Pre-trial Confrontations a..
Can't have explicit promises of leniency or threats b. DUE PROCESS/VOLUNTARINESS GENERALLY a.However. handwriting samples. blood samples. hair. Scientific ID procedures:no right to counsel for scientific ID procedures. voice. DUE PROCESS LIMITS ON ID PROCEDURES a. Suggestive Procedures allowed if reliable:ID procedure not violative of due proc ess if reliable[Neil v. "unduly suggestive" proceduresmay trigger due process right iii. Photo IDS: due process violation is found only if the photo ID session is very l ikelyto have produced a misidentification. et c. somewhat "suggestive" is not enough [Manson v. Bra thwaite] XX. clothing. fingerprints. Suggestive procedures:viewed under "totality of the circumstnaces"the ID procedu re was so "unnecessarily suggestive"and so conducive to mistaken ID that is was unfair to D b. 1) e.g. Biggers] c. XIX. Can't Offer to Protect a Prisoner from Physical Harm at Hands of Other Inmates [Fulminante] crimpro Page 14 .
Mentally ill not protected because of their illness [Connelly] XXI. Confession cases:e. STANDING TO ASSERT EXCLUSIONARY RULE a. Bindingon both state and federal courts XXII. only person who makes an illegally obtained confession can have it barred.g. not another person c.[Fulminante] c. Mere possessory interest in an object not enough to automatically give standing: need also reasonable expectation of privacy w/ respect to those items ii. Occupants of vehicle:driver and any passengershave standing to challenge the constitutionality of the vehicle stop [Brendlin v. Generally:violating of D's own constitutional rights. Co-conspirators:no automatic standing by virtue of being in a conspiracy . Illinois] i. California] iv. Search & Seizure cases:only evidence derived from violation of D's own "reasonab le expectation of privacy" has standing for exclusion [Rakas v. Rule:evidence violating D's constitutional rights may not be introduced by prose cution at trial b. not someone else's b. Presence at scene is alone not enough iii. EXCLUSIONARY RULE a.
Independent Source Exception:where there were two paths to the information. "Purged Taint" Exception: where additional factors intervenebetween the original . DERIVATIVE EVIDENCE a.XXIII. and only one was illegal. Poisonous Tree Doctrine b. EXCEPTIONS: i. and would have gotten it anyway i) Illegally on premises:method of discover was violation of 4th ii) PC for search warrant:at moment of entry. Applies to evidence that is directresult of violation of D's rights but also app lies to some "derivative evidence"that is indirectlyobtained through violation of D's rights i. but had probable cause to get a search warrant. then evidence is not deemed fruit of the poisonous tree 1) Use for warrantless arrests or seizures:where police conduct a warrantless search. Inevitable discovery exception: evidence may be admitted if it would "inevitably " would have been discovered by other police techniqueshad it not first been obtai ned through illegal discovery i) Discovery of weapon or body: would have been discovered anyways [Nix v. Williams] iii. had info entitling them to procure search warrant iii) Would have gotten anyway:would have probably eventually applied for a search warrant even if they had not engaged in the illegality ii.
Confession as tainted fruit:confession which stems directly fromillegal arrest. Mirandizing D not sufficient:[Brown v. Ceccolini] c.illegality and the final discovery of evidence 1) Illegality leads police to focus on particular suspect: full-scale investigation vitiates 2) Lead to evidence of different crime:probably admissible 3) Lead to witness:hard to suppress. Illinois] ii. easier to suppress "inanimate" fruits [US v. likely tainted fruit i. Other Factors:in considering whether untainted 1) Time delay:time between illegality and confession (2 hours not sufficient) [Brown v. illinois] crimpro Page 15 .
illinois] 2) Police intent:intent of police in carrying out illegal arrest/act 3) Intervening factors:events between illegality and confession (e. but no warrant Statement Made at Home No Yes. Second confession as fruit of prior confession:suppose D makes an initial inadmi ssible confession. suppressed Statement Made at Stationhouse Yes. otherwise-admissible. Illinois New York v. not suppressed [Brown v. confession: 1) 2nd confession not tainted if: i) . Arrest without warrant but with PC:having PC makes it more likely that tain will be purged [NY v. Harris Arrest inside Home No Yes PC for Arrest No Yes. talking with friends) iii. suppressed Yes.Brown v.g. Harris] iv. followed by a second.
Voluntarily made(after warnings) [Oregon v. Overlapping content of the two statements . v. Degree to which interrogators questions treated second round as continuous with the first . Siebert]. Timing and setting of first and second interrogation . then probably not admissible as tained/involuntary 2) Factors to considerwhen delivering Miranda midstream: Completeness and detail of questions and answers in first interrogation . Confession as "poisonous tree" 1) If result of Miranda violation. and interrogator) ii) First confession a result of inadvertent mistake iii) Police employing intentional two-step practiceof eliciting unwarranted confessions? [Missouri v. place. Elstad] 2nd confession won't normally be impaired by letting the cat out of the bag in the first confession ii) Factors to consider for voluntariness: i) Not a mere continuation of the first (meaningfully separated by time. cannot act as poisonous tree to physical evidenc e (particularly reliable evidence) [US v Patane] 2) . Continuity of police personnel .
XXVI. Illegally obtained evidence can be used to impeach D's testimony only [James v. "GOOD FAITH WARRANT" and "KNOCK-AND-ANNOUNCE VIOLATION" EXCEPTIONS: a. Reliance on a non-existent arrest warrant:evidence found during search incident to crimpro Page 16 . Illinois] b.Likely true of leads to 3rd party witnesses as well XXIV. Pre-arrest silence:can be used as evidence to impeach c. Post-arrest silence:can't be used as evidence to impeach XXVII. Leon] i. IMPEACHMENT EXCEPTION TO EXCLUSIONARY RULE a. Good faith warrant exception: exclusionary rule doesn't bar evidence that was ob tained by officers acting in objective reasonable relianceandgood faith on a search warran t issued by a proper magistrate that was found to be unsupported by PC[US v. Methodology for determining if evidence should be suppressed XXV.
Right to effective assistance e. RIGHT TO COUNSEL a. Reliance on a non-existent arrest warrant:evidence found during search incident to wrongful arrestwill be admissible[Herring v US] ii. Misdemanors with potential jail sentence: [Argersinger v. Violating "knock and announce": exclusionary rule will not apply [Hudson v. Per se right: if qualified. Hamlin] 1) Jail possible but not imposed:if not sentenced to incarceration but was possible. arraignment) d. Mich igan] XXVIII.i. Various stages: at other parts of the prosecution that are found to represent a "critical stage" in the proceedings (e. denial of counsel to conduct defense is automaticall y reversible error[US v. and remain ing info isn't sufficient b. Exception: if officer mislead magistrate with info known to be false. don't need to appoint counsel [Scott v. Felonies: ii. Applicable to states:[Gideon v Wainwright] c. Where the right applies: i. Gonzales-Lopez] b. Illinois] 2) .g.
the appeal made available to all convicted D's [Douglas v. California] 1) Discretionary review:no right to counsel in applications for discretionary review [Ross v. ENTITLEMENTS OF RIGHT TO COUNSEL a. but not probation revocation [Gagnon v. US] 3) Juveniles:applies if D may be committed to institution [In re Gault] f. any stage where D is compell to make a decision which may later be used against him 1) Initial apperance:iniitial appareance. Effectiveness of Counsel: i. Moffit] iv. Police investigation:right derives from 5th amendment right against self-incrimi nation during investigations ii. Habeas Corpus:no right to appointed counsel. Appeals:right to counsel in first appeal as of right. .Conviction used to increase sentence for later crime:misdemeanor conviction in (1) above may be used to increase prison sentence of subsequent conviction [Nichols v. "Critical Stage" doctrine:whenever there is a critical stage in the process. but need to provide some assistance for inmates [Bounds v Smith] XXIX. Stages where right to counsel applies: i. preliminary hearing and arraignment 2) Post-trial stages:sentencing. Scarpelli] iii.
for psychiatric examination) iv. tactical choices don't count 2) The deficiencies were prejudicialto the defense i) If not for.e.g. i. Expert assistnace:D may have 6th amendment right to have state provide anexpertt o be retained (e. Washington] 1) Counsel's performance was deficient.Standard:D must show that: [Strickland v. "would be reasonable doubt respecting guilt" of D sufficient to undermine confidence in the outcome ii. reasonably competent attorney i) Strong presumption for attorney. Other causes of ineffectiveness: 1) Court refuses to grant postponement to allow newly-appointed lawyer adequate time to prepare for time 2) That the lawer was not given a reasonable right of accessto his client before or during trial 3) The lawyer representedd multiple defendantsand the interests of those Ds conflicted iii. Fees and transcripts:state must pay transcripts/records/fees crimpro Page 17 .
Standards of professional responsibility:[Nix v. Secret Agents: i. US] ii. Whiteside] seems that even if i n good faith. violation of right to counsel for secret agentto delib erately obtain incriminating statements from D in the absence of counsel. breach of professional responsibility standard is per se incompetent performance for 6th amd purposes vi. Fees and transcripts:state must pay transcripts/records/fees v. Must be "deliberately elicted":ban on secret agents applies only where agent "deliberately elicits"the incriminating testimony. not where the agent merely "k eeps his ears open" [Kuhlmann v.iv. Once suspect is indicted. "knowingly and intelligently" standard: found to waive right only if he acted "knowingly and intelligently" by a preponderance of the evidence 1) . wilson] 1) Does not cover pre-indictment situations iii. and ot pass th ese on to prosecution [Massiah v. lack may not be a strategic decision 1) [Rompilla v Beard]: lawyer bound to make reasonable efforts to obtain and review material that counsel knows prosectution will probably rely on as evidence of aggravation at the sentencing phase b. Duty to investigate in Capital Cases:[Wiggins v Smith]requiring thorough investigation. Even if violated 6th amendment:can still use to impeach D's trial testimony c. Waiver of Right to Counsel: i.
Miranda warning suffice:if given Miranda and doesn't ask for counsel. they may ask him whe ther he will willing to answer questions. Louisiana] Increasing accuracy of eyewitness testimony 1) Person conducting lineup or photos should not know who suspect is 2) Eyewitnesses should be told that suspect may not be in lineup or photos. this is valid waiver of 6th right to counsel ii. Waiver after pre-trial appointment of counsel: after formal proceedings. and the refore they shouldn't feel like they need to make an identification 3) Suspect's appearance shouldn't be different than other members of lineup based o n witness' previous description 4) Clear statement should be taken from witness regarding his confidence in identif ying offender at time of identification and prior to feedback crimpro Page 18 . if poli ce want to ask D questions outside of presence of his counsel. constituting waiver [Montejo v.
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