CRIMINAL PROCEDURE (Class Notes) 
By: Leslie A. Fischman


11/13/12 6:19 AM


Criminal Procedure 8/22/12 Session 2

[late to class...missed first 5-10minutes] 4th Amendment

Before 1967 limited to property
Did not recognize concept of privacy
Traditional approach, that protected certain “places”/private property, protected not only houses, enumerated in 4th a, but protected area surrounding house we know as “cutilage” of the dwelling, the 4th a protected the dwelling and the curtilage.

United States vs. Potts –courts said the curtilage consists of “all buildings in close proximity to the dwelling which are continually used for carrying on domestic, necessary and convenient to a dwelling, and habitually used for family purposes. (how 6th circuit defined curtilage”

Open fields –were exempt from 4th a requirement and could be entered ad search by the gov’t without warrant.

1967 –US Sup Ct rejected notion that only private property could be protected and 4th a, said curtilage protected too.

Katz v. United States (p100)

Gov’t said none of areas protected by 4th amendment were intruded upon, and argued there was no search, there was no seizure bc its impossible to seize something intangible such as a conversation.

Did court believe that when they attached listening device to telephone booth as a search? Yes, court said that this was a search, and



HELD: the 4th a applies to any govt search or seizure that interferes with an indiv “reasonable expectation of privacy, even if there was no interference with property.”

Katz court said: What a person “knowingly exposes to the public is NOT subject to 4th Amendment protection.” If you knowingly expose to the public then its not constitutionally protected.

What a person seeks to preserve as private in an area publically accessible, may be constitutionally protected by the 4th Amendment.
After Katz the term “search” used in the 4th amendment is triggered whenever the govt intrudes in ANY way on a person’s protected interest in privacy, and the term “seizure” is triggered whenever the govt intrudes in any way on a protectable interest in property or security.

4th amendment applies to “federal govt conduct” as well as “state govt conduct.”
Justice Harlan, wrote concurring opinion: (has more influence than majority opinion” set forth a:

two prong test to determine whether a search as occurred: a subjective test and an objective test, and whenever analyzing a 4th amendment problem.
1. Did the person manifest a subjective expectation of privacy (ex Katz closed door of phone booth);

2. Is this privacy interest manifested by (mr. katz) one that society is prepared to accept as objectively reasonable.
Hypothetical:/Ex: BUT, if Katz was shouting would he have manifested an expectation of privacy? No, bc anyone could have heard him, and in that case the govt agents would have not been engaged in a search, bc the first prong of the test would fail. –Mr. Katz would have not manifested a subjective expectation of privacy. –How far must a person go to protect their privacy interests?


United States v. Dunn, 480 US 294:


Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Mr. Dunn had a barn w/ no windows. -Heavy mesh fabric that could not be seen from a distance. –he had not sufficiently manifested an expectation of privacy bc it was mesh, he needed to put up an opac fabric that you couldn’t see thru

Even if an indiv manifests a reasonable expectation of privacy, in some cases –society will not believe reasonable –who decides what society believes? The court.

California v. Greenwood p.104

Majority said: that the Greenwoods may have manifested a subjective expectation of privacy bc they put their trash in opaque bags. They manifested an expectation of privacy. –But this wasn’t an expectation that society would say was a reasonable expectation of privacy –they knowingly exposed to the public. –there was no reasonable expectation of privacy. –Greenwood does NOT apply when a police officer when in order to obtain trash enters an area form which the public is excluded, bc in the process of obtaining the trash the officer would have conducted a search of that private area –when an indiv knowingly exposes what he or she wants to keep private from the public, he put it in a public place.
Hypothetical/Ex) Cardboard box, considered a house?

**Please discuss two prong test when discussing a 4th amendment search, a search occurs when a govt (estb search by govt, interference) then you can say 4th am applies to this conduct... therefore a search was conducted... on exams take the two steps ** --Make your arguments, apply the case law, and holding to these cases. Doesn’t matter what you agree with, show him that you recognize there are TWO arguments. FIRST DISCUSS: Threshold issue, does the 4th amendment apply at all, make both arguments, this is an analysis driven class.



RULE: No reasonable expectation of privacy when exposed to the public, 4th amendment will not protect you. If you put it on the street, no expectation of privacy, bc you made it accessible to the public.

466 US 170 (1984)

Florida v. Riley p108 (brief)

Facts: Helicopter was flying at 400 ft when an officer saw what was growing in the greenhouse through a partially opened roof and sides of the structure.
Issue: whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 ft above the greenhouse constitutes a search for which a warrant is required under the 4th amendment.
Holding: the inspection was not a search subject to the 4th amendment. Although the occupant had a subjective expectation of privacy. –this court held is was not reasonable and not one that society is prepared to honor.

Rationale: Discussed, California v. Ciraolo, when police inspected backyard while flying 1,00 feet above, and saw marijuana growing in the yard. There they found it was unreasonable for repondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.

Conclusion: The 4th Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.

Florida v. Riley p108 (class notes)

Crucial question: Whether the public had access by way for aerial surveillance. ALL 9 members of the court agreed that if there was sufficient public access to Rileys backyard by way over flight than use of



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


helicopter by police did not constitute a search. If the public had access then so did the police. Disagreement, whether there was sufficient public access.

Since members of public hover 400ft above backyard then so could the police. White relied on FAA regulations. –Issue: Whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy

Plurality opinion –have less weight of authority than do majority opinions, they are still authoritative but don’t carry s much weight.
Conclusion: No 4th Amendment violation, bc since memebers of the public could hover over Mr. Riley’s backyard than so could the police.

Justice O’Connor: agreed with the result reached but disagreed with Justice White’s analysis, agreed with the 4 dissenting justices, he helped make a 5 majority n the result but disagreed with the reasoning, but agreed with the 4 dissenters, making a two 5 justice majority, -she disagreed as to the appropriate test – she and dissenters saidNot whether members of public could hover, but whether they could ordinarily hover, whether they in fact regularly did it. “Rather, consistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy from aerial observation was not “one that society is prepared to recognize as reasonable.” (p109)

Rule: Hinges on public’s access to Mr. Riley’s information, not whether physically and legally possible. Whether public would “ordinarily have access” to information Mr. Riley was trying to keep private.

Other forms –Police technology



United States v. Karo p.111

Federal agents learned from an informant that Karo planned to use Ether to extract material from clothing/fabric. So they installed on of these tracking devices in a can of Ether, before Mr. Karo bought it, and tracked those movements in thru, and about his house. Mr. Karo moved to suppress the evidence seized on the ground that it was tainted fruit of an illegal search. That the “tainted fruit” they used to obtain his conviction was obtained, in violation of his 4th am right. Made motion to suppress, and Ct of appeal affirmed. So when it got to court of appeal, two issues

Issue: 1. Whether installation of beeper, with consent of owner of informant (store owner) constitutes a search or seizure within meaning of 4th amendment, when delivered to the buyer Mr. Karo with no knowledge that there is a tracking device inside the container. –ct found that installation into canister, did not contain any information that Mr. Karo intended to keep private. 2. Whether monitoring beeper inside can, falls within scope of 4th amendment, if could not have been obtained through surveillance, it had been obtained from within house, they they couldn’t see from outside.

Court answered in affirmative: noted unquestionably, unreasonable to surreptitiously enter without a warrant –would have been a violation, the result is exactly the same when without a warrant, the govt surreptitiously obtains, which the govt could not have obtained by observation outside Mr. Karo’s house.

So court found this to be a search. –violation occurred when inside can inside his house? (double check) so court of appeal affirmed that the evid should be supressed.

The us sup ct reversed. –bc the court agreed that this evid was tainted by the4th amendment violation and therefore had to be suppressed, and sufficient other untainted evid to support probable cause.



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


RULE: Hi-tech thermal imaging, constituted a search, and it was a warrantless earch, and no expception to warrant requirement, and therefore violated his 4th amendment right, and did not have probable cause (pc requires legally obtained evidence).

Majority (5): the use of thermal imaging constituted a search,a nd therefore to be reasonable they should have gotten a warrant prior to using the thermal imaging, and therefore violated his 4th amendment rights. –took the position that Mr. K did have a reasonable expect of privacy bc the info was about something taking place inside his house, and we have the highest expectation of privacy inside our house, so long as we don’t expose the goings on to the public. – No matter how sophisticated the surveillance technique, if aimed at obtaining information inside home a reasonable expectation of privacy exists.

Rationale/Analysis: **The court said that the use of the thermal imaging device, was a violation, bc the device obtained information that could not have been otherwise obtained without a physical intrusion into a protected area, from inside Mr. Karo’s house.

The Dissent disagreed: Minimum expectation of privacy that has to be maintained. –Relied on distinctiong btw through the wall surveillance and off- the-wall surveillance. Had no reasonable expectation of privacy relating to the “heat” coming from inside the house, so long as heat measured from the outside. Bc any member of the public can look at his house and come to same conclusion, and see the heat coming from outside his house. [e.g no snow on roof outside the house]. If surveillance is aimed at obtaining information from inside the house there is a reasonable expectation of privacy. [great exam question, and make both argument] 1. It was obtained



from the outside, all this information could be gained form looking at the house.

Jones v. United States, 132 S. Ct. 945 (2012) ***NEW CASE***
Facts: Installed device on 11th day after obtaining a warrant after 10 days. Secured indictment on drug trafficking and conspiracy charges, suppressed GPA data while parked at Mr. J’s residence, but retained rest of data admissible bc Mr. J had no reasonable expectation of privacy when the vehicle was on a public street.

The DC circuit reversed the district court, bc evid obtained by warrant, was a warrantless search bc the warrant required them to apply the device within 10 days in the District of Columbia, they applied in 11 days in Maryland, so warrantless search, revered district court, bc evid obtained by warrantless search violated 4th amendment and sup court affirmed. Attaching gps device to vehicle constitutes 4th amendment search, Tracking him was a search, whatever device was use. At least tracking him for 28 days was a search regardless of what technology was used.

Right to be secure, in places and effects . . . constitutes an intrusion.
?? (check wording) It was an Intrusion, in effect, for purposes of obtaining information, therefore under specific language of 4th amendment constitutes a search. This type of encroachment on an area, enumerated in 4th amendment, would constitute a search, at the time it was adopted.

Justice Scalia and Majority said: Physically occupied private property for purposes of obtaining information. –Conclusion consistent with 4th amendment jurisprudence, taking us back to pre Katz, later cases deviated from exclusively property based approach have applied the analysis of Justice Harlan’s concurrence in Katz, that 4th amendment protects a



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


persons reasonable expectation of privacy –protecting people, not places.
**Katz didn’t repudiate the understanding that the 4th am embodies a particular concern for govt trespass upon the area it enumerates –person places and effects.

Next topic:

Collegaue or customer of target, used for further investigation, or at trial to obtain conviction Type 1 -Uncover law enforcment officer: police officer in disguise

Type 2 –confidential informant: a private citizen who has agreed to work for police, or to persuade the govt to drop or lower charges –a confidential onformant bc a 4th am state actor, just like an undercover law enforcment officer –if you can link them then the 4th am applies.

United States v. White p120

Facts: Recorded conversation in informants car.
4 justice plurality opinion: reaffirmed earlier sup ct precedents an affirmed that undercover use of recording equipment, a 4th am search.
Hold: Recording, not considered a search, not a violation of 4th amendment
Rationale: when a person misplaces his trust, and makes incriminating statements to an unbugged informer, he does not have any justifiable expectation of privacy. Example: So when you talk to a friend you have no expectation of privacy, no 4th amendment, bc no expectation that one who “voluntarily confides his wrongdoing will not reveal it.”
Recording merely, enhances reliability of the evidence.

If they suspect there is criminal activity, in your home, but don’t suspect you, they can get a warrant to search your home. (Zucher case example)



Whether a 4th Amendment search has occurred? (We are still discussing that threshold issue).

[answer to student’s question] Whether there was a 4th violation in “obtaining” the evidence. If so, then those conversations should be suppressed under the 4th amendment. Non-admissible hearsay evidence can be sued to obtain probable cause.

Probable cause: standard of proof, that justifies a search or seizure, making the search or seizure reasonable. -4th amendment only protects unreasonable . . . so if theres probable cause, that will make that search legal.

Even though a citizen may be innocent of wrongdoing, . . .permit intrusions into that persons interest in privacy, if probable cause to believe that citizen in involved in criminal activity, that person will be . . .to intrusion by that state. –impaired if stand of proof higher than prob cause were required before search or seizure could occur. So s or s strikes balance btw rights of citizens to privacy and security and interests of govt in prosecuting and . . . a crime.

Probable Cause: def –trustworthy evid that would make a reasonable person think more likely than not that the proposed search or proposed arrest is justified. Sufficient evid that would make a reasonable person believe that the gov’t conduct was justified.

Arrest is a seizure –two conclusions have to be justified by substantial trustworthy evidence, prob cause to arrest, 1. Sufficient trustworthy evid that crime has been committed, and 2. The person to be arrested has committed the crime (there was to be evid of criminal activity and substantial trustworthy evid that the person to be arrested committed the crime)



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


To make a arrest or a search 1. There has to be probable cause. –they have to have probable cause first, then make the search.

1. That a violation of the law has been committed, and 2. Sub trustworthy evid that the person to be committed to that crime has been arrested. (check wording) the person making the arrest (see wording above)

--Has to be . .is connected with criminal activity. Subst trustworthiy evid that these evid connected to criminal activity will be found in the place to be searched.

Police rely on information from informants –issue – whether their information if believed estb probable cause. But more importantly is whether their information is accurate. –to reduce chance that arrest or convictions made on say so of informant, sometimes they have an incentive to lie. The Warren court in mid-60’s attempted to standardize analysis of informant credibility in case Aguilar v. Texas (cited in Spinelli) Warren majority held: that an affidavit (is the application for a warrant wherein the applicant has to set out facts sufficient for an independent person to determine whether probable cause exists) Held: that an affidavit based on a tip from an informant, (most time informants anonymous) MUST state sufficient underying circumstances to show how informant reached his/her conclusion (1. Knowledge) and sufficient underlying circumstances estb reliability of the informant (2. The veracity prong).

1. whether person observed criminal activity, or heard from other sources.


If heard about from other sources, the info may be viewed more skeptically, than if the informant observed the acitivyt
2. veracity: directly seeks to evaluate whether lying or distorting the truth

Aguilar v. Txas: prob c based on a tip from an informant MUST meet this two prong test.

Spinelli v. United States p128
This case cited Aguilar
Facts: Police Of sought search warrant, for evid of a gambling operation. The application was based in major part on tip form informant, informant related that mr s was a gambler, and has two phone lines, and gave the two numbers. –the application for the warrant did not state how the informant came upon this information. And did not state upon what basis the informant concluded that mr s was a gambler. Nor was there any showing that the informant had a previous track record of reliable tips. But police corroborated by independent investigation.
Aguilar said: that an affidavit for a warrant must state facts sufficient to estb 1. Basis on informants knowledge and 2. Basis of informants credibility.
In this case did he estb credibility?
Ct of Appeal applied the “totality of circumstances test” but believed that test was too broad and re-stated the Aguilar two prong testfor the magistrate to credit such information in an affidavit in determining prob cause, both of those prongs have to be satisfide. Known as Aguilar-Spinelli test: to evaluate existence of probable cause, when based on information obtained from an informant.
Spinelli fond neither prong of test had been satisfied, the police officer did not give magistrate any reason for his conclusion that informant was reliable and the tip itself did not show any underlying circumstances that mr s was operating a booking operation.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Conclusion: Not sufficient for a finding of probable cause and therefore the warrant was an invalid warrant and therefore the search was a warrantless search in violation of the 4th amendment.

Criminal Procedure Notes Session 3 -8/29/12

Probable Cause (continued)

When a police officer applies for a warrant, and a tip is based on an informant

SPINELLI said, “when probable cause is based on a tip from an informant, the affidavit/application MUST (1) state sufficient underlying facts to state how the informant reached his conclusion” in other words what was the “basis of his knowledge” and MUST (2) also state sufficient underlying facts that estb the credibility and reliability of the informant.

SPINELLI believed that the totality of the cir approached should be based on probable cause, when a tip form informant. –sup ct said “totality of the cir – was way too broad. (check wording)

AGUILAR-SPINELLI TEST is always used when determining whether probable cause exists when dealing qith tip from an informant. In Illinois v. Gates

ILLINOIS v. GATES (p.131)

Facts: PD received an “anonymous" handwritten letter Not sufficient probable cause for search warrant, therefore not a valid search warrant, therefore warrantless, and need an exception to be consider valid.

They used the Aguilar test. Didn’t meet the two prongs.



One of the problems the informant was anonymous – therefore no presumption of reliability.
Based on“fair probability of criminal activity.” As part of the circumstances (discuss the two prongs) just discuss 1. Basis of informants knowledge and 2. Reliability of informants knowledge.

MCQ “totality of circumstances (90% of the time) that’s the test the courts use.

Probable Cause: If two-prongs of Aguilar-Spinelli are satisfied, now we have the basis of his conclusion, and the credibility of the informant, their own investigation corroborates.

If the information from the informant DOES NOT indicate the basis of the informant’s knowledge and there is no corroborations to assess the reliability and credibility of the informant then we know it would fail under Aguilar Spinelli and we probably know that it would likely fail under Gates.

If BOTH of them fail, and no facts indicating how the informant reached his conclusion “eg that they wer dealing drugs” and no way to assess the credibility, address everything else, and probably still fails.

****JUSTICE REINQUEST –[posted on D2L and on TWEN] SEE EXAMPLES, OF HOW THE TEST MAY FAIL AND HOW IT MAY PASS THE TEST****

Probable Cause (continued)

MARYLAND v. PRINGLE (p146)

Facts: pulled over for speeding, three men in a vehicle, officer observed a large rolled up amount of money when Mr. Pringle opened the glove compartment.



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Issue: Was there probable cause? (that one or all) Defendant: Moved to suppress the cocaine from evid, stating that the officer did not have probable cause to arrest him, so the evid was found pursuant to an illegal arrest, so any evid obtained pursuant to an illegal arrest, made without probable cause, will be suppressed, including his written confession.

The were sufficient evid that a crime had been committed, but at the time of the arrest the officer did not have probable cause to believe that ANY of them did so. Question: whether there was sufficient facts of the person who committed the crime
Argument: Pringle in the front seat, cocaine was in the back seat.
Sup ct, that any or all of occupants of the vehicle, exercised, dominion and control over the cocaine . . . therefore reasonable . . . that Pringle, either soley or jointly.

PROBABLE CAUSE: It is the standard required, in order for a search or seizure to be reasonable. 4TH AMENDMENT –merely requires it be reasonable, based on probable cause. A search requires: probable cause AND a warrant to be reasonable.

II. Search Warrants

Generally –4th amendment requires, every search or seizure to be made pursuant to a warrant issued upon probable cause.
Issued by a judicial officer, issued to a law enforcement officer

Usually a magistrate issues one [lawyers appointed by the district courts, under a particular statute
Purpose: to interpose an unbiased judicial officer, btw the citizen and the govt

Bc the pd is in the business of fighting crime, and bc of that may reach a mistaken conclusion about the existence of prob cause, so 4th amend req that an unbiased person make a probable cause dtermination.



US sup ct –makes clear that an issuing magistrate must meet TWO TESTS
1. He or she must be neutral and detached
2. And he or she must be capable of determining whether prob cause to arrest or search exists.

[see above]: Shagwip v. City of Tampa 407 US 375 (1972) –sup ct made it clear magitrate meet two tests].

Neutrality of the Issuing Magistrate/Judicial Offficer: inc the prob that a correct decision as to prob cause will be reached, before an arrest is made or search is conducted.

State Atty General, Prosecutors, Police Officers, -- must have intellectual ability to determine probable cause. (common sense determination? –no intellectual prerequisite, required as a matter of constitutional law. ---anybody with common sense should be able to be an issuing magistrate).

A defendant may attack the validity of a search warrant by pointing to specific examples of partiality, by pointing to issuing magistrate wasn’t in fact “neitral and detached.”

If a magistrate gets a payment, everytime he issues a warrant, and doesn’t get paid everytime he refuses to issue a warrant than that magistrate is not neutral and detached.

ALL Jxd require that pd seeking warrat to put the facts estb probable cause, put into a written and signed affidavit. (aka application for a warrant)

Ex-parte –the party to be arrested cannot contest the issuing of the warrant, can only attack not probable cause or not a sufficient issuing magistrate.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


The 4th amendment requires: that the warrant give a 1. particular of premised to be searched, and 2. particular description of items/or persons to be seized.

Be specific enough that a police officer executing the warrant, so that if an officer w/ no connection to the case, precise enough that an officer not connected to the case would know where to search and what items to seize from the face of the warrant.

Even if there is probable cause to search a location, a warrnt to search that location is NOT valid if the location is NOT described with “reasonable particularity.”

Courts have not required “absolute” technical accuracy of the premises to be searched, it must merely be precise enough that the officer can ascertain where to search. (eg ask the neighbors)?
In the absence of probable cause, separate units, in a multi-unit building, the warrnt for the building must describe w/ reasonable particularity the unit or apt to be searched.
If looking at the building from the outward appearance, looks like a single family residence, and neither the investigating officer, or affiant knew or had reason to know, until execution of the warrant is under way, then the warrant is NOT defective for failure to specify –outward appearance looks like single family residence.

MARYLAND v. GARRISON (p148)

Facts: PD applied for warrant, did not know whow many apts there were, they believed there was one (did they use reasonable due diligence) –the 3rd floor apt was divided into two apts. ---They were supposed to search McWebb’s and they ended up arresting Garrison. –they found two kitchens that’s how they found out that there were two apartments.



ISSUE: Whether the seizure of that contraband was prohibited by the 4th amendment.
Ct found that the search warrant was sufficiently particular as issued, even though it turned out to authorize the search of two aprtments. The 4th amendmet requires “reasonable” particularity AND if it requires reasonable parituclarity, anytime reasonable objective standard, than it allows for a “reasonable mistake”. The bvalidity of the warrant must be assests base don info that officers diclsoe or had a duty to discover an disclose to the issuing magistrate.

Example: if when they approached the building and it said two apts on 3rd flor, but didn’t say names of the occupants, and no common area, and in fact two apts, 3A and 3B would that have changed everything? YES –b/c even though the warrant contained a reasonable mistake it would NOT have been reasonable for them to execute warrant –C: that would have been an illegal search, but is not the case here.

If search of an apartment building : the warrant must contain 1. The name of the occupant or the 2. Number of the particular apt. –[did the warrant satisfy this requirement –YES]

If a W is issued for the search of a PERSON (rather than a place) the warrant should state: 1. The persons name, or 2. At least a description of that persons, so that anyone can apply to, the person to be searched.

If they are searching for CONTRABAND, {definition-property that no one can legally possess} If warrant is issued for narcotics or ____, its specific enough if the search is for narcotics or illegals drugs.

If search of ILLEGAL WEAPONS, it doesn’t have to specify what it is a search for.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


If the description of –If EVIDENCE TO BE SEIZED IS “FRUITS OF THE CRIME” OR “TANGIBLE, PHYSICAL EVIDENCE” –then it must be specific/particular enough that the items can be readily determined by the officers executing the warrant.

WHERE THE SEARCH IS TO TAKE PLACE –the W is constitutional despite descriptive error, and the same is true of minor errors in descriptions of the ITEMS TO BE SEIZED contained in a search warrant.

Even if w/o reasonable particularity, and not in plain view, and officer seizes them, those items NOT SPECIFIED IN THE W, MUST BE SEVERED AND CANNOT BE USED AS EVID IN THE PROSECUTIONS CASE IN CHIEF, BUT does not render the warrant invalid, everything described with particularity in the W can be used.

Evidence of criminal activity that they see in “plain view” and they know when they see it “evid of criminal activity” even though not in the warrant, yet they can seize it.

Not admissible, bc not described with reasonable particularity, and not legally in the place to see in plain view (eg looking in underwear drawer).

[break]

II. Knock and Announce

As a general rule: executing officer miust 1. Announce his/her presence, 2. Announce his or her purpose, 3. And his identity, and delay for sufficient time for person to open the door. --must state law enforcement officer, and there to execute that warrant



Fed statute: may break into place, ONLY after notice of purpose and identity is not admitted entry, then they can break in.

1995 US Sup CT unanimously ruled that the knock and announce doctrine is part of 4th amendment, and therefore applicable to all state and federal officers.

Based on ban on unreasonable searches, bc an announced forcible entry would be so frightening to inhabitants that for that reason alone would be determined unreasonable (Wilson v. Arkansas)

They must 1. Audible knowck, or otherwise make presence known at outer door, thus making occupants aware of officers presences, 1. Announce their identity, 2. Announce their purpose, 3. And delay for a sufficient time to allow occupants to open the door.

Still admissible –even if they violate knock and announce doctrine, so long as they have a solid warrant.

Which one do they most likely violate –the waiting, bc what can happen with the waiting, they can destroy evidence.

RICHARDS v. WISCONSIN (p. 154)

Reasonableness of unannounced rntry must be based on particular facts of the case.
Never have to knowck and a in a felony drug investigation, the us sup ct says rule overly includive, the ct struck down that rule as unconstitutional and the Richards US sup ct, set forth this test for determining whether the knowck and announce req is excused...[cond see below]

1. Police must have a reasonable suspicion (less than probable cause) ....that knowcking and announcing



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


their presence under the particular circumstances would be dangerous or futile, or that it would inhibit the effetive investigation of crime by for example, allowing for the destruction of evid, the court said this stand as supposed to a prob cause standard, ct said this reasonable sus standard strikes the appropriate balance btw general alw enfor concerns issue in execution of search warrants and indiv privacy inetrest that area affected dby no knock entries.
Reasonableness must be decided at time they decide to forgo that requirement.

III. Warrantless Arrests and Searches of Persons

When pd wish to enter a private premises. . . .[a warrant doesn’t necessarily have to be procured to make arrest]
However, maybe a warrant isn’t required to arrest a suspect, BUT “probable cause” IS required.

Clear cut rule: ALL arrests MUST be founded on PROBABLE CAUSE (there must be probable cause that a crime was committed and that the person arrested committed the crime).

CUSTODIAL ARREST: made in order for charges be brought against suspect

UNITED STATES v. WATSON p158

Clarified 4th am meaning and application
The constitutionality of a warrantless arrest arises as an issue in a criminal prosecution in an evidentiary context.
Facts: the govt received info from a reliable informant that Mr. Watsonw as using stolen credit cards and they arrested Mr. Watson w/o a warrant.
Procedure: the ct of appeals held arrest unconst bc govt did not first obtain a W to arrest, bc inspector had plenty of time to obtain warrant w/o jeopardizing the arrest.
Arrested him and searched his person, and found stolen credit cards and sought ot have vid suppressed.



4th am does not require officer obtain W prior t making a PUBLIC ARREST
an officer may, provided they have P/C, the arrestee committed the crime, they may arrest the suspect in a public place w/o a W
MAJORITY: relied on common-law rule: arrests w/o warrants were permitted so long as arrest occurred in a public place.
Protection of citizens privacy is outweighed by costs of law enforcement of having to make warrants for public arrests. Arrest warrants are not necessary to arrest persons in a public place.
Dissent: questioned common law authority –pointing out that only the most serious crimes, were identified a felonies.
Watson was the first case in which the ct upheld the common law rule permitted warrantless arrests in public, even with sufficient time to obtain a warrant. US v. Sanat Ana.
Police may arrest someone in public w/o a warrant, BUT may not arrest a person at their home without a warrant, absent emergency circumstances or valid consent, or . .
Absent emergency circumstances or valid consent, cannot arrest in someone elses’s home.

III. EXCEPTIONS TO WARRANT REQUIREMENT
The search incident to legal arrest exception:
When the police make a lawful arrest they have the right to make a search incident to that arrest.
THREE ISSUES THAT ARISE:
1. WHAT TYPE OF ARRESTS JUSTIFY A SEARCH INCIDENT?
2. WHEN MUST THE SEARCH INCIDENT TO A LAWFUL ARREST TAKE PLACE
3. AND WHAT IS THE PERMISSIBLE SCOPE OF SEARCHES INCIDENT TO LAWFUL ARREST?



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


BASIC PRINCIPLE (**memorize)

The first thing you MUST estb is that: the arrest is a 1. LEGAL ARREST (what makes an arrest legal probable cause) a legal arrest is only justified if the arrest is Legal. Always make sure probable cause to arrest. Bc if an arrest not based on prob cause than its an illegal search in violation of the 4th amendment. The arrest must be lawful, what does lawful arrest require: 1. Legally obtained probable cause.

UNITED STATES v. ROBINSON p163

Incident to the arrest the officer searched his pockets, found cigarette package. –and found heroin
Did officer have any reason to believe that he had narcotics? No. –he was arrested by driving without a license.

Officer is allowed to search a person w/o probable cause,
Officer had NO probable cause to believe Mr. Robinson was carrying narcotics.

Holding: a search incident to a lawful arrest, is lawful even though for a minor traffic violation
RULES:
Under reasonableness clause, all lawful custodial arrests –justify a full search of the arrestee without a warrant, and the court –police off have an automatic right to search containers found on the arrestee.

The officer doesn’t have to have any prob cause, or reasonable suspicion, that there is evid of criminal activity on the arrestee or weapon, this is a FREE search without any probable cause or reasonable suspicion.

Extends within area of arrestees control, what area is within arrestees control, the passenger compartment, so they can search the passenger compartment for evid and weapons.

As long as the Passenger comp is within grab area of suspects, the officers can search passenger compartment of the vehicle.



A valid arrest or lawful, supplies police officers with automatic power to neutralize, to . . . or destruction of wvid, -whether or not such risks exist on the facts – doesn’t matter what the officer believes sus has evid of ---its an automatic right.

If Officer believes a passenger may be harmed:
They have the right to ask everyone to step out of car If they believe one of the passengers is armed.

Gut feeling motorist engaged in illegal activity, What if
Gut feelings don’t rise to reasonable suspicion

WHREN v. UNITED STATES --p.171

FACTS: officer had a feeling, that bc in a a high drug area, but they didn’t have any prob casue to stop the vehicle. –they followed him, he sped off. (prob cause to arrest) they wanted to search the car. –they stopped him, approached the vehicle, and saw baggies in his lap, Mr. Whren argued it was a pretextual stop, designed to search for drugs.

Ct says constitutional reasonable, without regard for officers motivation for the action
Was there PC –yes bc he violated the law in front of the officer. (in this jxd prob ca to arrest for traffic violation)

Officer can search incident to laeful arrest and area within arrestees immediate control
It doesn’t matter that the officer used traffic violation as pre-text.
Was it lawful? Yes it was
What if officer had been racially profiling? No facts he has racially profiling
Officer used traffic violation as pretext to make the arrest, the officer motive or intent NOT relevant. RULE: If officer searches the TRUNK –A SEARCH INCIDENT TO ARREST EXTENDS TO PASSENGER COMPARTMENT ONLY –so that if



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


he searches the TRUNK the evid is ILLEGALLY OBTAINED –by searching the trunk the officer exceeding the scope of what’s permitted incident to arrest.

Traffic Citation ONLY stop: may not search person, passenger comp of vehicle, unless prob cause to believed evid of crim activity other than traffic violationw ill be fond, but even in traff ticket only situation, the officer, does have limited search and seizure powers, may ask any and all passengers to exit vehicle to (officers safety) and can conduct pat down. Reasonable suspicion “based on reasonable and articulatable facts”

ATWATER v. CITY OF LAGO VISTA (P176) [civil case]
FACTS: fine only offense, she could not be jailed, she was not wearing a seat belt, the judge did have a choice to issue citation of arrest her, and he chose to arrest her. She sued the city under a civil rights statutes. 5-4 majority found that the arrest was not a 4th am violation, even though offense extremely minor, punishable only by a fine. –once a legal custodial arrest is made, a search incident of the person of the arrestee and the area within her immediate control this her her vehicle, automatically authorize the officers to search her and area within her control.

Under the law of the jxd she could not be jailed for the offense, she could only be fined.
Modern Policy: conceded that if they were to write a rule to exclusively address the contested facts of the case, then ms Atwater would have probably prevailed, bc a local resident, unlikely to be a flight risk, and circumstances of the arrest wee merely gratuitous humiliations, imposed by police officer, at best exercising extremely poor judgment.

Arrests allowable only for jail only offenses not fine only –court rejected her bright line rule, and said only



bright line rule allowed is one made by prior decisions, that R: even minor offense made in his presense, he may arrest offender, without formal, Whren:

ISSUE: 4th am test for traffice stops should be, not the normal test of whether probable cause existsed
Even where officer has PC to arrest, the 4th has restriction on how arrests, the 4th amend requires seizures be reasonable. {arrest is considered a seizure} –eg use of deadly force is sometimes unreasonable under the 4th am.

TENNESSEE v. GARNER P182
Facts: saw someone run across yard, and attempt to climb over fen
The use of deadly force to seize, and kill the suspect, was unreasonable under the 4th amendment. Violence or threat of violence may be used to apprehend an arrestee?
Violation of suspects 4th am rights
The use of deadly force is a seizure subj to the reasonableness requirement of the 4th am
Tennessee statute: use all the necessary means to effect the arrest, if the suspect forcibly resists.
The court found that this statute was contitutional on its face, but the court declared the statute unconstitutional as it allowed, use of deadly force to suspect who posed no immediate threat to officers or to others

Holding: deadly force used to prevent escape of non- deadly felony suspect, is unreasonable seizure in violation of 4th am

Use of deadly force is unreasonable unless two conditions met 1/ prob cause to believe the suspect poses significant threat to officer or others. And 2. Deadly force may only be sued if officer reasonably believes is necessary to make . . .escape. (allows for a


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


reasonable mistake) if he can do so with non deadly force, he must do so, he must at least warn before deadly force is employed. . . .

TWO CONDITIONS:

1. Probable cause to believe that suspect poses a significant threat of death or physical injury to off or others and
2. The officer reasonably believes such force is necessary to make arrest or prevent the escape.

Criminal Procedure Session 4
9/5/12

[30 minutes late!***]

Kentucky v. King, 131 S. Ct. 1849 (2011) (see westlaw PDF)

Police may enter home w/o a warrant, in case of emergency, in case of imminent destruction of evidence, so long as police themselves do not create the emergency themselves (conduct or threatened conduct does not violate the 4th a them po may enter w/o a warrant.

When occupants knew of their presence, then they had prob c that they were in the process of actual destruction of the drugs.

The ct said they did everything right and did not violate the 4th a

What if they looked in through a window? That is bad faith, that is where they violated the 4th a in order to enter, that would not justify the emergency circumstances exception.



Discussable Issue: Was their conduct legal?


King, rejected several other tests adopted by lower courts, and the test adopted by Kentucy Sup Ct, the ct instead opted for rule: police can rely on emerg cir so long as they did not engage, or threaten to engage in conduct that vio the 4 a

The ct said under this test the po can go up to a house or apt and knowck and annonce their presence, as any other icticzen can do, and if the suspect reacts bys tarting to destroy evid, and po inside can hear whats going on inside, by knocw and announ, the po did not create the emergency. –bc their condut did no vio or thre to vio the 4th a, but the po cannot threaten tot break in if the person wont open the door, they can tbreak in that would be a violation of the 4th am, they can ttsand on exigenct cir exception (cannot use exigent cir exception if they are in violation of the 4th am)

Ct in this case did not hold that warrantless entry was jusitifed, the ct only held that the usual exigenct cir excep applies, the ct didn’t dteemrine whether there were exig cir in tis situation, that’s up to the state ct. and up for remand.

Holding: police may enter a home w/o a warrant in response to an emergency circumstance, such as the imminent destric of drugs, so long as the police themselves, do not engage or threaten to engage in conduct that violates the 4th amendment.

They still need probable cause. Exigent circumstances excuses them from needing a warrant BUT does not excuse them from needing probable cause.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


*Most courts have not required narcotics to be in the actual process of destriuction (to be considered an emergency circumstance) before a warrantless entry can be jusitifed, they just must have prob c to believe there is an imminent risk of destruc of the evid even tho none has yet been destroyed.

>private v. public arrests

In home arrests: require a warran absent exigent circumstances
Public arrests: don’t require a warrant

Determine whether an arrest is made in the public or in the home

Hypotheticals: [public v. private arrest –defined]

1. If an arrest is made in a “common hallway” outside defendant’s apt. (in home or public arrest?) answer: public

home: (definition) must be flexibly applied to include a public area, to where a homesless person has established a living space. Even if a pub area, if a homeless person has estb a living space in that area – then the officers need a warrant to invade that living space of a homeless person to arrest that person.

>Other Warrantless Intrusions

Protections against warrantless intrusions: apply with equal force to rented hotel/motel rooms –during the rental period.
This is the case only as long as the person has rightful possession of the room.

Hypothetical: if def rents hotel room for 24hrs and must be out by noon tmrw –do they need a warrant to enter motel room to arrest person during that 24 hr period. –this rule applies to transient occupancy only



during the time that the person is in rightful possession of the room.
[note: dates and times in an essay or mcq will trigger that issue]

Rule: cts have held payton does not require officers to obtain arrest warrnt before entering a house boat, car, or motor home to effectuate an arrest.

> Arrest Warrant and Search Warrant Requirements
-Rule: If police officer has a valid search warrant (legal search warrant , to search suspects premises) , an arrest of def in his home, during the course of that search is valid, even tho the officer does not also have an arrest warrant. –they can w/ that search warrant, arrest him in his home.
-If they go to house, just to arrest him –they have to have an “arrest warrant”
-If they have a “search warrant” they don’t also need an “arrest warrant.”

>Arresting someone in their home (what kind of warrant is needed –how does it need to be worded?)
-Rule: the po need an arrest warrant, search warrant will do trick as well, to arrest someone in someone else’s home, they actually need a search warrant to get in that house, the object of that search –is for the suspect, of course then they can arrest the suspect for the search warrant.

-Rule:--a search warrant names the: premises to be searched, and the people to be searched, and is specific as to “what” they are looking for, and “who” can be searched. –has to describe items with “reasonably particularity” and the people/items to be searched w/ “reasonably particularity.”


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


-imminent risk to safety of others.


>Search Incident to Arrest EXCEPTION
Once po make a lawful arrest (prob cause to believe a crime has been committed and person to be arrested commited it –defined lawful arrest)
Then they are allowed to make a search incident to that arrest

Chimel v. California

-F: wife home, searched entire house. Did they exceed the scope? Yes. How long did search take? 45mins- 1hr.
H: po may conduct a search __to a lawful arrest, but in this case, the po exceeded the scope of a search incident to a lawful arrest, specifically, ___of area w/in def “immediate control” BUT they may not search the entire house w/o a warrant.

(definition of “area w/in his immediate control: his person, area around him)
Exception to warrant requirement –should be defined as narrowly as possible –

-What is justification for search of person : weapons or evid that can be destroyed
-Ct said that for the same reasons to remove any weapons and evid the scope of a search MUST include the area w/in the immediate control of the arrestee. –includes area into which an arrestee may reach in order to grab a weapon or other items.

-C: its unreasonable to expand scope of search to remainder of premises on which suspect is arrested, such a rule would expand the exception beyond its stated justification bc, --then they would get arrest warrants to arrest person and search entire premises that would be unreasonable to do that ct argues. -Limited to person of arrestee and area w/in his immediate control.

-Search of Arrestee’s Backpack: violated search incident to arrest eception –bc at time of search agents



had it in their possession, and if off have it in their poss, then no way sus can grab it or obtain for evid.

>Factors to determine: area of control (area w/in defendant’s control) *be fact sensitive when applying this rule
Note: search incident to arrest comes up all the time ---prof. favorite (caveat the search incident to arrest is only an exception when it’s a “lawful arrest” look whether they had legally obtained prob c to arrest the suspect, if they go prob c from an illegal search, than that’s not legally obtained prob ca, then arrest lawful, and seach unlawful, and all evid seized will be subj to application of the exclusionary rule)

Whether suspect is handcuffed or not (can limit grab area)
The physical characteristics of a suspect (a young agile arrestee will have a greater grab area than an older arrestee)

Ratio of suspects to po officers, the more officers and (1 arrestee) that would limit his grab area
Whether the items searched is reasonably accessible. A search prior to arrest, is incident to arrest, if they had prob c at time they conducted the search

Note: If they conduct search first, its incident to arrest, if at the time they conduct the search, they already had good prob c to arrest the suspect.

--BREAK—

(prof is repeating this class at 10am on Saturday for the other class)

When police have made a lawful custodial arrest of an occupant of an automobile, po may inciden tot that arrest, search the person of the arrest and the entire passenger compartment and any containers in the passenger ocmpartment, if the passenger ocmp is w/in the immediate control of the arrestee



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Arizona v. Gant (p207)

F: arrested on an outstanding warrant and driving with a suspended license. And discovered drugs, handcuffed him, put him in patrol car, then went back to car and searched passenger compartment and found evid of criminal activity and based on that evid they prosecuted and convicted mr. gant.

-at the time of the search, did he have access to passenger comp? no he was in swat car

exception defined in Chimel and applied to vehicle searches in Belton, did not jusitf the search in this case, bc mr gant, they removed him from being near the passenger comp by putting him the backseat of the po cruiser.

Chimel limites search arrest, to person and area w/in his immediate control (meaning –area in which he might gain possession of a weapon or destructible evid) ct says this limitation ensures that the scope of the search is consistent w/ purpose of protecting offiers, and safeguarding the evid that arrestee may attempt to conceal or detroy – safeguarding evid of the arrest.

New York v. Belton

--ct considered application of chimel to automobiles -Belton ct held: that when a off lawfully arrests the occupant of an automobile, the off may as a contemporaneous incident ot tahta rrest search the passenger comp of the auto and any containers therein -new york v. belton: F: 4 people in auto, all 4 arrested, and separated from eachother, but none of them was placed in handcuffs, the beltn ct believed that the pass comp was an area into which one of the arresteees might reach.

Arizona v. Gant



-Gant ct: broad reading of belton, talked about it justice brennans dissent, characterized the majority’s holding (pass comp is w/in pass immediate control – deifnition) jusitice brenna said that holdling rests on the fiction that an interior of a car is Always w/in the immediate control of arrestee who has been in car, under belton majority –the result would presumably be the same even fi they were I handcuffs prior to conducting the search
-justice brennas dissent a lot of cts grabbed hold of, that broadedned the ‘serach incident excpeion” as applie dot passenger compa
the gant ct said: that such a broad reading of ny v. belton, undermines the jusitifcaiton underling the seach incidne to arrest exception, that justif, is protecting arresting officer, ans safeguarding evide.

>Distinguishing the Difference Between Facts of Belton and Facts in Gant
BELTON
Belton –drug offense

In belton the arrestees wer separated but not handcuffed

[VS.]

GANT

-here in Gant they were handcuffed and each placed separately in back of a police car.
-5 arresting officers, there were 3 arrestee in Gant., -Gant –driving on suspended license, an arrest where police could NOT expect to find evid in pass comp, SINCE po could not have reaonbly believe dthat he had access to car at time of sarch, or that evid of search migbt have bee found in car, whats the evid of dirivng on a suspended licen? The search was unreasonable.

HOLDING: GANT the ct held that police may search a vehicle incident to an arrest, of a recent occupant, ONLY IF the arrestee is w/in reaching dist



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


of the pass comp at the time of the search OR it is reasonable to believe that the vehicle contains evidence of the arrest

BELTON (facts) –there were 4 arrestee arrested on drug chargeds, all handcuffed and each placed in backseat, separate of poilcie car, could police search, pass comp of lawfully arrested four, bc they were arrested on drug charges, so the PO would reaosanbly believe that they would find evid of the arrest :drugs Exception works for Belton, BUT does not work for the gant case –they could not therefore search the passenger comp under that rule, and it wasn’t reaosnble to believe that the pass comp cotained evid of the off for which agnt was arrested (on a suspended lic)

Gant –prio-–(history) this case changed, prior to this case, po were wearching even when arrestee as in abck of police cruiser.

Areas beyond control of arrestee: the fact of the arrest will create a risk of destruction of evid by the arrestees associates and will give rise to “emergency” or “exigent circumstances” allowing police to conduct a search beyond the area immediatel within the control fo the arrestee. E.g. if they ebleiev there are other people in the house that know the arrestee has been arrested. Look for facts indicating “other people”

The Protective Sweep: (definition) is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of the arresting officers or others. –what is a protective sweep looking for? Answer: Other People.

Can they automatically do a protective sweep? And search rest of house? NO they cant


Sup ct said can do a prot sweep, based on reasonable suspicion, that persons who might harm the officers or others, are present on the premises, at the time of the arrest.

So where the circumstances justify a protective sweep. Where circumstances justifying a prot sweep are present, po may search area w/in immediate control of arrestee, and while conducting that protec sweep, they can look for any people (in closets under beds) and any evid of crim activity in plain view –

Prot sw –only allowed in a search incident to a lawful arrest –and NEVER USE LANGUAGE in an answer unless discussing “search incident to arrest!!!!”

ONLY ALLOWED in a search incident to a arrest – allows them to search area beyond the arrestee immediate control BUT there MUST be facts giving rise to belief that there are other people on the premises.

Police may seize the entire premises, IF they have probable cause to believe it contains evid of criminal activity.
They can seize, if evid of criminal activity

Search incident to arrest: the search must be relatively contemporaneous w/ the arrest, but ct seems to be very lenient w/ respect to time elapsed btw arrest and search.

Bc ct said no greater invasion of persons security, at time of search they need to already have pc to arrest sus, if no pc search him, find evid, then arrest = wrong! Bc pc to arrest him was gained thru an illegal search w/o pc

ALSO, the ct says, a search is incident to a lawful arrest EVEN IF is occurs SOMETIME AFTER THE ARREST, a diff time, a diff place, but the search MUST be made “objects” ON THE ARRESTEE OR


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


W/IN ARRESTEES IMMEDIATE CONTORL AT TIME OF ARREST.

IF OCCURS sometime after arrest, can only be of objects in possession or in area of immediate control at time of arrest.
E.g. arrest him at vehicle, pass comp w/in immediate control, they can take him to station, strip him, put on orange suit, and later search his clothing, and probably search pass comp of car. Even tho sometime later.

II. Warrantless non-consensual search of a vehicle, can be justified on various grounds
1. As incident to a lawful arrest
2. Police inventorying vehicle after lawfully seized and towed from public place

3.and in limited circumstances when a driver is stopped on a public road for violating a traffic offense, but there is also a specific “automobile exception” to the 4th a search req
A. the general “automobile exception” to the warrant requirement
rule: when the police have prob c to believe that a vehicle contains the fruits instrumentalities or evid of crime, they may search the veh without a warrant. *This exception does not depend on prob c to arrest a driver or any particular individ
The issue is: whether there is prob c to find evid of criminal activity somewhere in the vehicle.
Although they can search w/o a warrant, the auto excep, is an excep ONLY to the requirement of a search warrant. THEY MUST HAVE PROB CAUSE TO BELIEVE THE VEH CONTAINS EVID OF CRIMINAL ACTIVITY. It is NOT an exception to probable cause.
THE SCOPE: defined by the object of the search and places in which there is prob c to believe the object



may be found. So it does not follow that prob c to search always applies to vehicle.
Limited pc, eg po see suspect place container in car and drive away, off have prob c to believe that the container, that sus placed in trunk contains contraband, tey have no reason to believe contrband in car other than container, under these facts they have prob c t o search for container –once they discover the obj purpose of searching they have to stop

So if search is limited to “trunk” but searching of trunk they find other evid of crim activity, there is prob c of crim acitivyt throughout acr and thus allow them to expand their search.

Carrol v. United States [CT NO LONGER RECOGNIZES READY MOBILITY AS EMERGENCY CIRCUMSTANCE THAT JUSITFIES A WARRANTLESS SEARCH, ]
Although owners have const protected privacy interests in their cars, they are given less protection in their home, bc of the “ready mobility” of their vehicle. The 1925 Carroll ct, viewed the “ready mobility” of automobiles as creating “exigent circumstances” which justify a warrantless search.
The ct no longer considers the ready mobility of a vehicle as an exigent circumstance.

California v. Carney

-entered motor home without a warrant and without consent
seized all the drugs and the evidence
there are two justifications for the automobile exception

although the mobility of automobile, Carroll remains one basis for the exception, the ct found that the auto mob excep, is also jusitifed by diminished expectation of privacy we have in automobiles.

Ct said: “even in cases where an auto was not immediately mobile, the lesser expectation of privacy,



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


its use a readily mobile, --____automobile exception . .]
Ct recognized its many attributes of a home
This type of mobile home, motor home is more like a car than a house.

Test: whether a vehicle is one or the other,
If more like a house, than treated like house more expect of privacy but if more like car, less expecta of privacy
To determine whether one or other, test is determining whether the vehicle is being used for transportation Factors relevant for determining whether vehicle being used for transportation:
The vehicle location (public parking lot vs. an RV lot) Whether its readily mobile or stationary
H: auto excep: jusitifed warrantless search of this vehicle, ready mobility, and less expectation of privacy.
A diff rule might apply if locate din a place, being used as residence rather than as a vehicle.
Although mobility jusitif for applic of this excep in Carney, the ct has disavowed exig cir as a requirement for applicability of the automobile exception.
The ct no longer considerd the ready mobility as an exigent circumstance

Containers & expectation of privacy issues:

Car Cases: generall involve issue: searching veh without a warrant, but what if police come up on a container in an automobile (container: anything capable of holding another object) the sup ct: what one person may put in a suitcase another may put in a paper bag.

Ct: doesn’t draw distinctions re: containers –the one exception –for containers that by their very nature cannot support a reasonable expectation of privacy: ege translucent container –no reasonable expectation


of privacy. OR by its shape discloses whats inside it – (eg gun case)

Whether autom excep should apply to items incidentally in the veh. –case: united states v. Chadwick: seized footlocker –refused to apply exception –person expects more privacy in a double locked footlocker LUGGAGE than he does in his automobile.

CHADWICK: they only have PC as to footlocker, they cant use general automobile exception to open footlocker.
CT held: police need warrant to search suitcase, bc since they have only prob cause as to container, they did not have it as ot the luggage.

Rule: when pc is focused on container, rather than vehicle, the pd need a warrant to search the container. Chadwick and Sanders –later discussed in Ross
Ross: held –a warrantless search of abag during the search of a car did not vilate 4th am

Rule: When PC focused on car and vehicle, and course of search PD discover acontainer, they can searc the container.
Carwide Pc vs. Container specific Pc_____

Ross: if off received a reliable tip that sus was dealing drugs out of car, off could search car and could open containes found in the auto
However if the off, rec’d reliable tip, def had a suitcase full of drugs than off would need a warrant to open suitcase, bc needs to be spec to suitcase, rather than automobile .

//////// [supra history] rules new see below follow below

California v. Acevedo



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


police right to search containers w/o a warrant in a car, should aply not only where PC applies to car as a whole, but also where Pc extends only to container itself
Rule: the Pd may search without a warrant if their search is supported by probable cause.
As to a container or whether as to the automobile itselfthey don’t need a warrant to conduct a search.

Wyoming v. Houghton

F: searching automobile for narcotics., searched purse and found narcotics in purse.
Ct said: Can seach containers in a vehicle that clearly belong to a passenger and not the person who was arrested. The ct says officers have pc to search the veh and any containers that container hat it is they are searching for.

Zutcher: not that owner is supecte dof crime, but Pc to believe that specific things to be searched for andseized are located on the property to which entry is sought.

The ct found: passegers like driver, have reduced expect of privacy, to things they bring in cars.
What if she took purse with her: then would have been different.

Only bc the purse was left in the car
They had no Pc to arrest her, so they wouldn’t have been able to search her incident to arrest they could only pat her down for reasonable suspicion –she may be armed. . .[__unsure wording]

Once they find what they were looking for, eg prob cause as to a container, under general automoile exception, they can search trunk and container, but if searching trunk for container, they find other evid, that’s going to give them porb cause that there is evid of crim activity, and can expand seatch throgout automobile

(general rule above)



if lawfully held in police, may inventory contents of vehicle, according to standardized police procedires, inventory searches are not for law enforcement or evidentiary purpose, these searches are base don special need, and justified as administrative searches. Inventory seach, the automobile must be (1) lawfully in police custody (pd can impound vehicle to protect from theft or vandalism)—once make impound deicison, standard criteria, and on basis of something other than suspicion of criminal acitivty)

Colorado v. Bertine

>US sup ct upheld search
specifically rejected arg that inventory search must be premised on danger to public safety
ct said other considerations sufficient to uphold inventory search
police are potentially responsible for evid taken into their custody
protect from unauthorized interference
and knowledge of the precise nature of property – knowledge of contents

of impounded vehicle help guard against claims of theft, vandalism, or negligence.-and also to protect themselves.
Two conditions: before inventory search of inventory impounded vehicle can be made

1. Must follow standardized police procedures, so that person conducting search doesn’t have unbridaled discretion to determine scope of the search –the police dpt proc determine sthe scope of the serahc

2. The police must not have acted in bad faith (they must act in good faith), for sole purpose of searching veh for evid of crim activity, so they must not have impounded veh for purpose of searching it for criminala citvity

administrative search, does notrequire pc of reasonable suspicion



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


any time impounded vehicle, make sure requirements met for the search –disucss in an essay.

Leslie Fischman Criminal Procedure Session 5 Notes
9/10/12 (Monday Night)

[10-15minutes late]
CRIMINAL PROCEDURE: SESSION 5 CLASS NOTES
SECTION 8: LESSER INTRUSIONS: STOP AND FRISK

Terry v. Ohio p.234

Did the court believe that this was a 4th Amendment? Yes the court, believed this was a seizure protected by the 4th amendment.
Holding: a stop can be conducted if a pd has a reasonable suspicion tat criminal activity is about the happen, and the pd can conduct a protective frisk, if officer has a reasonable suspicion that suspect is armed and dangerous at the time of stop.

Stop and frisk doesn’t require probable cause, requires “reasonable suspicion.”
The ct believed: that the detainment of suspect on street, was intrusion onto their freedom, that that stop was a seizure within the meaning of the 4th amendment.

Balancing: the nature of the intrusion against the states interest in conducting stops and frisk, and concluded that probable cause isn’t required.
This seizure, the stop, and pat down of outer clothing for weapons, the search, is reasonable IF conducted on the lesser standard of proof of reasonable suspicion. The individual interest at stake, in a stop of frisk, than that of a full scale arrest, than that of a full scale search, “the individuals stake is less” unlike a



A momentary small scale intrusion into someone freedom
Unlike a full scale search, a frisk is a cursory inspection for weapons.

So court says, balanced against these minimal intrusions, is the high state interest in conducting these type of stops and searched.
Essential tool of crime prevention and detection. Strong state interest in protecting officer who stopped the person
Rationale: If the stop and frisk required probable cause, than there would not be an appropriate balance between the state and the individual. Officers would then face an unacceptably high level of risk.
What’s the difference between a search incident to a lawful arrest and that of a stop and frisk?
Can search person and evidence he might destroy, it’s a complete search for evidence and weapons, of containers, and the area within the immediate control of the arrestee.
(SEE SUPRA)
This is the one EXCEPTION TO THE WARRANT REQUIREMENT: The one exception to warrant requirement, allows search or seizure on “less than probable cause” before police can invoke this exception, the police must be able to articulate specific facts, which taken together with reasonable inferences from those facts, make the officer reasonably believe that criminal activity is afoot.

Is a frisk automatic with a stop?
-is a frisk or search of outer clothing automatic, with a stop? The officer needs additional and articulable facts that the suspect is armed and dangerous at the time of the stop.

RULE: The officer needs to justify the stop “the seizure, a 4th a seizure” The officer needs “reasonable suspicion that is based on specific and articulable



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facts, that criminal activity is afoot (occurring or about to occur).

RULE: In order to justify the frisk (the search) the officer must have reasonable suspicion based on specific and articulable facts that the detainee is 1. Armed and 2. Presently dangerous, at the time of the stop. [note: a frisk is NOT automatic, with a stop] and when discussing this exception, must give facts that give rise to reasonable suspicion for the stop, and analyze facts that give rise to reasonable suspicion for the frisk.

The Terry Stop and Frisk (EXCEPTION)

3 Categories of Police Citizen Contact

1. A Custodial Arrest:
An incident search:
An arrest is the most serious intrusion, and standard of proof required for an arrest is “probable cause”
and a lawful arrest based on probable cause allows for a complete search of the person of the arrestee and area within his or her immediate control for weapons and evidence.
2. The Stop and Frisk
The stop is a less serious intrusion than an arrest Which is permitted on the lesser standard of proof, of “reasonable suspicion”
(based on specific facts that the officer can articulate. Incident to a stop is a frisk which is a “limited search” for weapons ONLY. A pat down of the outer clothing for weapons only NOT evidence.
Justification for frisk, to protect the officer
3. An Encounter
When an officer engages a citizen in an “encounter” – it isn’t a seizure, it doesn’t implicate the 4th



amendment, therefore the officer who engages a citizen in an encounter doesn’t have to ___ any standard of proof
E.g. officer asks you did you see anything? –that’s an encounter

(3) ENCOUNTER (notes, con’d)

Did the stop go beyond Terry?

Court has established this test to determine whether an encounter is a 4th amendment seizure:
A person has been seized within meaning of 4 a only is, in view of all the surrounding circumstances, a reasonable person would have believed that she was not free to leave. --United States v. Mendenhall (446 US 549, (1980)

In light of totality of circumstances a reasonable person would not believe that he or she was free to leave. (encounter) under these circumstances –this is the issue triggered if you see facts giving rise to an “encounter” type situation.

If he or she did not believe he or she was free to leave than those facts trigger a –4th amendment seizure. The threatening presence of several officers, the display of a weapon by one of the officer’s physical touching of the person, and sue of language or tone of voice indicating that compliance with the officers request might be compelled.

Since Terry, the reasonable suspicion standard, require considerably less proof of wrong-doing. Considerably less than even a preponderance. All that is required is some minimum level of objective justification. For a Terry type stop.

RULE: Police can’t intrude on individuals right, based on articulable hunches, or subjective good faith, they must be based on OBJECTIVE criteria and it MUST



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be based on some FACT or FACTS that the OFFICER can explain.

Analysis: In assessing reasonable suspicion:, similar to probable cause, it’s a common sense analysis based on the facts presented. Just like probable cause, just like probable cause, deference given to expertise of law enforcement officers, based on their experience they know facts are indicative of criminal activity, whereas as a layman may not see it. What must be assessed, the “totality of the circumstances.”

When you l ____.......

Probable Cause is a fair probability of criminal activity.
Reasonable Suspicion is a fair possibility of criminal activity.

Florida v. J.L. [p.243]

F: Anonymous tip, Officer acting on an anonymous tip, stops and frisks individual, and finds a gun.
R: (professor) The Officer in order to stop and frisk, the officer needed reasonable suspicion base don specific articulable facts that the person he is going to stop is engaged in criminal activity, and needs reasonable suspicion based on specific articulable facts that the person is armed and dangerous at the time of the stop.

A stop that is not based on reasonable suspicion is a violation of the 4th amendment.
The court said that it doesn’t matter that the tip turned out to be correct bc the reliability fo the informant must be gauged before the stop, the court believed there where no facts that justified the stop let alone the frisk.

Gov’t argues: This court said there should be a firearm exception



Illinois v. Wardlow (p.246)

F: Mr. Wardlow, saw this caravan approaching the area he was in, an area known for narcotic trafficking, so he started fleeing. They cornered him, and opened his bag, and found a gun.
I: Did they have reasonable suspicion to stop him and search him?
Just bc he was in a high drug trafficking area, ct agreed presence alone in a high drug trafficking are is not enough. –The court stressed, that presence in a high crime area alone would NOT justify the stop. But that is a relevant factor with him running, now we have reasonable suspicion.
Ct found that the [Location + Wardlow’s evasion = that is sufficient for reasonable suspicion].

Its not clear how long a suspect must be detained, and how intrusive before a stop turns into a full scale arrest requiring prob cause, if a stop is too long and too intrusive than its considered an arrest and then they need prob c to arrest the suspect.

RULE: (TIME) The detention (the stop) MUST be no longer than the circumstances which justify the stop require.

EXAMPLE: e.g. a person stopped for jaywalking and detained for a time longer than necessary for time to write a ticket, bc the officer wanted to radio officers, that there was an outstanding warrant for the jaywalkers arrest, the ct held, that that detention was unreasonable wrong and therefore violated the fourth amendment.

Not only must the stop be no longer than necessary, it’s a quick investigatory stop, it must be no more intrusive than necessary to verify or dispel the officer’s suspicions, no longer than necessary and no more intrusive than necessary to verify or dispel the



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officers suspicions, it has to be the least intrusive means.

Florida v. Royer (p.249)

F: They took him out of a concourse to a room, at an airport, took luggage off the plane, and brought to the office, and he consented to the search of the luggage. Did they have prob cause to arrest him? Prob c not required, enough specific facts to justify reasonable suspicion of criminal activity, justified the stop: eg one way ticket . . etc.

No problem with the initial stop of him in the concourse, and questioning him in the concourse. Stop to verify or dispel the officer’s suspicions. They wanted to search his luggage.

Although he ultimately consented to the search of his luggage –the consent was tainted bc he had been subjected to such a “serious intrusion” that the court found that he was in essence under arrest at the time he gave his consent.

Court says:
They need to have equivalent of probable cause, what did they actually have “reasonable suspicion”
IF they had prob c then his consent would have likely been valid, but they didn’t have pc they only had reasonable sus, and detention was too long and too intrusive on reasonable suspicion.

United States v. Drayton (2002) ---(p.256)

F: This was an encounter
Consent of passengers in a bus sweep in involuntary, officers make them aware of right to refuse consent, make them aware of their rights,
The supreme court said there was NO seizure
The supreme court said that the initial question fo Drayton and Brown and subsequent search of their persons, did not constitute a 4th amendment seizure bc the entire sequence was consensual.



They rejected the notion that such a bus based drug, intradiction search cannot be consensual,
Cooperation not bc they are coerced to do so, but they know participation enhances their safety and safety of others on the bus, arg that most citizens will respond to police request in this way.

Does not constitute a 4th amendment seizure, even though the entire process as done without any individualized suspicion, so when you see this type of scenario, remember: Drayton, and make the argument. [read the dissent carefully*]

[BREAK]

Brendlin v. California (2007) –p.262

F: traffic stop, a registration check, not a registration check point. Did they have probable cause? No, did they have reasonable suspicion? No.
Brendlin was a passenger in the car,

Trial court denied his motion to suppress
The California court of appeal, reversed finding that he was seized, and said that the evidence shouldn’t be suppressed bc a passenger in a vehicle is not seized as constitutional matter, absent additional circumstances, to a reasonable person that the passenger was the subject of the officer’s investigation.
If interrupted the passengers itinerary just as the drivers’ –ct says any reasonable passenger would find exercising control over everyone of the vehicle and none were free to leave, and Mr. Brendlin did in fact have standing to challenge the stop.
All of the evidence found held subject to suppression under exclusionary rule
Def pled guilty, after superior ct denied his motion RULE: Passengers just like driver’s are seized during an automobile stop.
Not based on suspicion and not based on probable cause, passengers as well as drivers can ____



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TERRY principles apply to seizures of property as well as seizures of people.

United States v. Place (1983) –p.265

F: Seized luggage and subjected it to dog sniff test. And dogs response confirmed the officer’s suspicions, after which they got a warrant.
At the time they seized the luggage they had reasonable suspicion –so what can they do when they have reasonable suspicion –they can stop and frisk. They can detain a person, they can detain property. They can as long as they need to dispel their suspicion.
RULE: The detention of property must be NO longer that the circumstances that justify require
It was too long, bc they had plenty of time to have a dog at the airport bc they knew he was coming, so ct said the detention of luggage, went beyond the narrow authority of police, to detain luggage, reasonably suspected to have contained narcotics.
So police officer may w/o a warrant temporarily seize luggage on basis of reasonable suspicion that it contains narcotics, to justify circumstances.
The same standard applies to property
The initial seizure of luggage was justified under Terry bc they did have reasonable suspicion that the luggage contained narcotics.
Cites Terry
Intruded on his liberty, he wouldn’t feel comfortable continuing on with his itinerary without his luggage – and ct treated seizure of luggage almost equivalent to seizure of him, bc he was compelled to stay at the airport and not let his luggage be taken by the police.

California has a law that requires a Parolee to consent to a search or seizure, sign up for, the officer doesn’t have to have any reasonable suspicion or probable cause, it’s a condition of their parole.



SECTION 9: LESSER INTRUSIONS: INSPECTIONS AND REGULATORY SEARCHES

Samson v. California (2006) –p.270

F: he waived his privacy when he signed document, when he was released on parole.
Ct of appeals held suspicionless searches are held admissible, reasonable under fourth amendment, not arbitrary, legal under California law, not harassing Mr. Samson.

Ct said to determine whether a test is reasonable –a totality of circumstances test
Balancing degree to which it intrudes upon a person privacy and degree to which it intrudes into legitimate gov’t interests

New Jersey v. TLO, 469 US 325 (1985) –p.270 mentioned

F: the united states sup ct upheld a limited search of a high school student. A teacher fond two girls smoking cigarette in a restroom. Took both girls to assistant vice principle. When asked, TLO denied that she had been smoking, and the vice principle demanded to see her purse, where he found cigarettes, rolling paper, marijuana, and a substantial number of one dollar bills. –she confessed to selling marijuana

The united states supreme court –upheld search, applies to public school officials, balanced the child’s interest in privacy is substantially outweighed by teachers and administrators maintaining discipline in classroom and on school grounds. with administrators .
Found in zippered compartment, and an index card, people who owe me money.

Another Example Case:



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Drug testing of public school students where there is no individualized suspicion, in a 2002 case, board of education of independent school district v. earls –the court h: that a school policy all students must be drug tested to participate in competitive school activities. The supreme court upheld this policy ---applying balancing test, weighing students interests, and promotion of legitimate interests.

RULE: For a consent search
They don’t need a warrant
They don’t need articulable suspicion
Based on valid consent is reasonable and does not violate the 4th amendment.
In order to be reasonable –consent to search MUST be “voluntarily” obtained.

SECTION 10: CONSENT SEARCHES

Schneckloth v. Bustamonte (1973) –p.278

F: stopped for broken headlight and license plate light, they were stopped, searched the entire car, and found stolen checks, and Mr. Bustamonte was tried for theft of the checks.

Issue: Whether consent is valid if the consenter is not aware that he had a legal right to refuse consent Issue: whether the consent was freely and voluntarily given or result of coercion express or implied, or duress.*

The court sai din determining the validity of consent, knowledge of the right to refuse is only one factor to consider.
Court upheld this case and said the govt bears the burden that consent was “freely and voluntarily given” Prosecution has burden that consent was “freely and voluntarily given”

If coerced, than not valid consent.
The court applied the “totality of the circumstances” test to see whether consent was validly given



Valid so long as not the product of: duress, or coercion (express or implied).
“Whether consent to a search warrant was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.” (p.279)

ALL CONSENT need to be is validly given.
All three dissenters, said it was nonsense for someone to say that they didn’t know, had no knowledge of right to refuse, dissent says non-sense this in only one factor

They don’t have to inform suspect of right to refuse consent
Suspects lack of knowledge of right to refuse does not itself negate consent.

Third-party consent: the court held –that a third party consent is valid if the third party possesses, actual or apparent authority to consent.

United States v. Matlock

F: Wife consented to search of her bedroom, they used evidence to convict husband
Ct said she could consent to search of the room bc she had common authority of the area

It rests on mutual use of the property by persons who have generally joint access, purpose, so any co- habitants can permit inspection.
She lived with him, consented to search of their bedroom, ct found she had common authority Whether she had mutual sue of bedroom, if police reasonably believed she had apparent authority to consent that’s good enough

Georgia v. Randolph {RULE re: cotenants, one consents and one refuses}
Domestic dispute. Ms. Randolph gave permissiont o search residence for items of drug use, mr Randolph



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was there and refused consent to search the residence, they searched, and he was indicted for possession of cocaine. Did the wife have common authority to consent to search, yes, it was marital residence, did she have authority to consent to search of entire premises, he also had authority, he was there and he said no. who wins? He does.

Ct said that one occupant may not give effective consent to search a shared premises, as against a cotenant who is present and states a refusal to permit the search.

If one consents and one doesn’t = NOT effective consent.
One cotenants refusal, renders warrantless entry and search unreasonable, and invalid as to the person who refused to give consent.

No superior, inferior, as to co-tenants. Unreasonable search and invalid as to him

OTHER RULES, REGARDING “CONSENT”:

When a child is living at home with parents, the parents can consent to search of the room.
Child cannot consent to full scale search of the parents house.
College administrator, cannot give consent to search of student’s dormitory room.
High school administrators, have been held able to search a students locker, bc they have less expectation of privacy, and school ahs a greater interest.
A landlord may not consent to search of tenants rooms, even though landlord has right to enter rooms to clean them
But can consent to search of common areas, areas of common usage.
Management may not consent to search of guest room, as long as guest has lawful possession of that room Owners consent, may almost always be binding on guest, even where guest refuses to consent.



Guests may not consent to search of owners property, except perhaps, that of owners property.
An employer may consent to search of employees work area, if search is for items related to employment, if search is of area, where they store non-work related items, then the employee has no right to consent to a search of that area.

Only if employee is in substantial authority can consent for employers but if temp cannot consent for employers
Even if consent is voluntarily given either from def or third party with actual or apparent authority, the consenting party may limit the scope of the consent
A search is not valid if a reasonable person would conclude that the search exceeds the limitations established by the consenting party. (in construing the scope, test is whether a reasonable police off would believe def consented to search of area the officer searched, since objective standard, reasonable mistakes as to suspects consent are permitted).
Since def has right to refuse to give consent, and has right to control the scope of consent, it follows that the person has the right to revoke it once its given. So as the officer, heads towards the kitchen, the individual says “oh I changed my mind you can’t search the kitchen” the officer can’t search the kitchen, bc he revoked the already given consent BEFORE the search began.
Consent cannot be revoked retroactively.

They could stop them at any time. BUT the officers don’t have to tell them they have the right to refuse, the court says that that doesn’t matter. All the passengers on the bus needed to say was no, and they wouldn’t have been searched.

Criminal Procedure Session 6
9/19/12


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Limited Stop, long enough to dispel their position The frisk is a limited pat down of the outer clothing for weapons only, if they suspect that the detainee is armed and dangerous

THE PLAIN VIEW DOCTRINE

When the police are in a place where they have the lawful right to be, for example:
(1) when conducting a search pursuant to a valid search warrant, or

(2) a search pursuant to an exception to the warrant requirement
(1&2: Puts them legally in the place)the plain view doc allows them to seize evid of crim activity that they see in plain view.

(a) It may be something not named in the warrant, and (b) may be evid they did not expect to find pursuant to exception to warrant requirement.
Rule: If they are lawfully in place they see in plain view, they are able to seize it under the plain view doctrine.

Caveat: in order to seize it they must have :
(i) “probable cause” upon seeing the object that it is evid of criminal activity
(ii) –and he must also have lawful access to the object in order to seize it.

Example: he can see contraband through the window. Can he enter the house to seize the contraband bc its in plain view. No. He is lawfully in place where he sees it, views it, on the street in public, but that doesn’t get him inside the house. So seeing it, he has probably cause its evid of criminal conduct, so now he has prob c, but prob c alone does not get him inot the house to seize it using the plain view doc, he either needs a warrant or exception to the warrant requirement. If no one is home then he prob needs a



warrant, if someone is in the house, and looks out the window and sees the officer outside on the street, then prof doesn’t know if that’s enough to give a risk of destruction of evid. Rule: if he sees it from plin view outside, he cannot just enter the premises under the plain view doctrine.

Example: If he has an arrest warrant and he arrests the suspect in the entry way of the house, he can search the person of the arrestee and the area within the arrestees control. And sure, he could open the closet door, and if not locked considered within area of the arrestees control.

He has prob cause to believe now evid of criminal activity, can seize the premises. --------------------------------------
REVIEW OF CASES FROM LAST WEEK (Session 5)

Your question: Georgia v. Randolph (p.285): came pursuant to a phone call, to a domestic violence call and asked if she minded if they searched the premises, but Mr. R said no. they searched the residence and found evid of crim activity, not valid consent, bc one occupant cannot give consent to a shared residence. Schneckloth v. Bustamonte (p.278): voluntary consent, discussed consent and waiver of 4th amendment rights, one cannot waive constitutional rights unless he or she knows of the right, and knows of the consequences of waiving that right, voluntarily chooses to forgo that right.

Consent: an exception to the warrant requirement (bc NOT a waiver unless person knows of the right and voluntarily chooses to give up those rights). -----------------------------------

Issue in “consent to search”: the TEST is “whether the defendant voluntarily consented and whether the consent was voluntarily given is considered under the “totality of the circumstances” look at all of the



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circumstances to determine whether ocnsent is voluntarily, including knowledge or lack/absence of knowledge to refuse. Although we have rigt to refuse to give consent we do not have the right to know, the police are not req to tell su that we can say no.

OTHER TYPES OF CONSENT EXAMPLES

THIRD PARTY CONSENT: Whether person has common authority over the promises, then third person consent is valid, its and “objective test” police are allowed to make a mistake, police allowed common authority over premises, if police believe she did then ok.

WHEN A CHILD LIVING AT HOME WITH HIS OR HER PARENTS: parents may consent to a search of the child’s room.

ADULT CHILD AND KEEPS ROOM LOCKED: the parent probably cant consent to search of the room, but if police reasonably believe that parent has common authority over the room, than that mistake will allow a serahc of the room.

A CHILD may not normally, consent to a full-scale search of the entire parent’s house.

If a THREE YEAR OLD opens the door, then not violation, if child is allowed to invite strangers into the house. –once inside the house, and child allowed to invite strangers into house, not a 4th a issue, officer can then seize anything he sees in plain view. If he is legally inside the house.

Most courts have refused to find that a college administrator can give consent to police to search a students dormitory room, even where the UNIVERSITY retains “right to inspect rooms”, they are NOT allowed to give consent to POLICE to search



the rooms. Most cts have held that Univ cannot give consent to police ot enter and search the rooms.

A HIGH SCHOOL administrator is capable of consenting to a police search of the school, high school students lockers.

A LANDLORD may not consent to search of his tenants rooms, even though the and landlord has the right to enter those rooms to clean them,

A landlord has the right to consent to search of common areas, common hallways and dining areas, and the like.

HOTEL GUESTS, are treated as any other tenant, and management may nto consent to seach of guests rooms, while occupant s legally occupying the room.

IF a non-paying guests, the owners consent to search a non-paying guests room is always binding on guest even if they refuse to consent. NON-PAYING GUESTS (e.g. someone staying at your house for a few days).

An EMPLOYER may consent to a search of an employees work area if the search is for items related to the job BUT where the search is of an area, where an employee is allowed to store no related items, the employer does not have the right to give consent to police to search an employees locker where he or she stores “personal” belongings.

An EMPLOYEE may consent to search of employers premises, if in position of substantial authority. (but not if just a night watchman)

WHO MAY GIVE CONSENT: “scope of the consent” –even if consent is voluntarily given, by


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someone with actual or apparent authority to give consent, the person may place limitations on the scope of the consent, and a search is not valid if a reasonable person would conclude that the search exceeded the limitations established by the consenting party.

[RULE] SCOPE OF CONSENT: test is whether a reasonable person, construing scope of consent, whether a reasonable police officer would believe that def consented to search of area that the officer searched.

Since def has right to refuse and control scope of consent, then person can revoke consent once given.

Question: What if they see it from the another room. The cocaine in the kitchen.
Plain view: no not under plain view cannot search, bc not lawfully in the kitchen, bc revokes consent Consent to search three rooms. So no cannot search kitchen once def revokes consent to search the kitchen.

Search incident to arrest only allows search of area They would have to get a new warrant, bc it was a consent search.

Plain view doctrine (continued)

Allows warrantless seizures, it does not allow warrantless searches.
And upon seeing it, have prob cause to believe evid of criminal activity then they can seize it

Once they have it in their possession then they have to get a warrant to search it.
Upon viewing it, the officer must have “prob cause to believe its evid of criminal activity (of contraband) the moment they lay eyes on it.”



the item must be investigated in order to determine whether prob c to seize it then, that investigation itself is search that requires prob cause, and searching investigating to determine whether prob c so that would be an

RULE: If they have to investigate, check it, then no prob cause. They have to prob cause upon “seeing it”

There is no requirement that plain view discovery be advertent, even if expected in advance, if expected to find it, and sees it in plain view, then he can seize it.

They have a warrant.
They hear shuffling around, so then conduct a protective sweep. If they believe shuffling around, other people may harm officers, and during protective sweep (for people) they find a package they believe drugs in there (and reasonable suspicion) in order to seize package during protective sweep they have to have prob cause of evid of criminal activity. –they need a search warrant for contraband, if they want to search the residence they either need consent or an exception to the warrant requirement (eg emergency circumstances) but if no other people on premises, and no risk of destruction of evid, they can secure the place ad get a warrant.

Make sure you know the limits of these exceptions, and that the officers are acting within the limitations of the exceptions, and get out the problem by making the counter argument.

PLAIN VIEW DOCTRINE: they have to be LAWFULLY in the place and have LAWFUL ACCESS to the object that they see in plain view. Then establish that upon seeing it, they believed



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evidence of criminal activity or contraband, then they can seize it, but they cannot open it, they can seize it, then they can get a warrant. IMPORTANT NOTE: You have to get them lawfully in the room, the house, etc. in order or the plain view doctrine to apply.

PLAIN TOUCH DOCTRINE
Plain view doctrine: can apply to area, where found by other sense, eg touch and smell
PLAIN TOUCH: if an officer acting in the course of lawful activity can determine by touch that an object is evidence or contraband, the officer can seize that object, under the plain touch corollary to the plain view doctrine, just like in plain view where the officers must have pc upon seeing it that its evid of contraband or criminal activity, --(plain touch doctrine) requirement: the officer must have prob cause to beleive evid of crimal acitivyt or contraband upon touching it. If he has to manipulayte it in order to determine what it is, then that’s an unlawfuls aech that requires probable cause.
Case: plain-touch corollary: Minnesota vs. Dickerson, 508 US 366 (1993)* : an officer in the course of alawful Terry stop, on reasonable suspicion, and frisk, a lawful risk on reasonable sus suspect was arme,d frisked suspect and felt a hard small pea shaped obj, in the suspects pocket, at the supresion hearing, mr. d was arrested and moved to suppress the crack cocaine, and officer testified, that when he patetd down Dickerson, he felt the hard obj and felt like a lump of crack cocaine. –suspect just left a place known for drug activity, and likely the obj was crack cocaine. – would this seizure have been permitted under Terry. – The seizure of the crack would nt have been permitted under Terry, bc Terry frisk only allowed to extent to uncover weapons, so this search was more intrusive than necessary to determine whether obj carried by



my. Dickerson was a weapon. If the officer determine prob cause, by sense of touch, while within the scope of lawful activity the seizure of the obj, should be -- ___beyond that which is already otherised by the search.

If the officer feels something, and upon feelignit, prob cause to believe evid of criminal activity, then he can seize it.,
All that’s allowed on a Terry type stop is a pat-down for weapons.

Plain touch doctrine would allow him to seize it. Suspecting its crack isn’t enough, he would have to search it to have prob cause, that’s beyond scope for a terry frisk for weapons.

The touching must be within the scope of lawful activity*
The cour in Dickerson validated plain touch exception but also found that the exception was not applicable to facts in Dickerson, bc the officer did more than merely touch the obj in the course of a lawful terry frisk. –beyond limited frisk in terry.
Seeing, touching it, without the need for any further necessary investigating, no search no matter how cursory is allowed.
Rwquirements:
Proc c –suspect is armed
Officer stays within narrow limits: outer clothing for weapons
And feels what he has prob cause to believe is a weapon, contraband, or evid of criminal activity, he must obviously seize it., then
He will arrest the suspect
Then search can be more instructive, incident to a lawful arrest.
Did he have prob cause upon feeling it (felt a lump) and knew it wasn’t a weapon, knew it was too invasive, tells you he didn’t have prob cause, it was evid of criminal activity or contraband.


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PLAIN SMELL DOCTRINE

The US Supreme court has implied that the plain view doctrine
United states v Johns, 469: stopped a truck and seized packages that smelled of marijuana.

Whether def ever had a privacy interest in packages, reeking of marijuana
Certain containers may not –expect reasonable expectation of privacy bc they contenst can be inferred fom their outward appearance and oder emminating from the container

Whether court would approve “plain smell variation” the ct has held that the use of “dogs” to perform a “canine sniff test” to discover drugs in luggage and other containers doesn’t constitute a 4th amendment search at all.

--the use of high tech sensing devices to detect oders from a house, violation, unlawful search. See Kilo v United States.

See TWEN and D2L.

Only exception to prob c is terry type stop and inventory searches

Emergency circumstances: still need a wrarnt, still need prob cause
Need an arrest warrarn ot search person in their home Ex cir, can arret w/o warrant but still need sprob c to arrest suspect at time he enters the home

The justification for this exception: is abse don the fact that it takes time to get a warrant and in some cases, some type of hamr may occur during ht edelay caused by obtaining a warrant.

WHEN 4TH AMENDMENT WARRANT REQUIREMENT IS EXCUSED:
And certain risks resulting from the delay in obtaining a warrant are so severe that in order to avoid those



risks the 4th amendment preference for obtaining a warrant is excused, the risk is so great that it excuses police form first obtaining warrant
Risks that trigger exigent circumstances

(1) Hot pursuit of suspect
(2) Risk to police or public safety
(3) And risk of imminent loss or destruction of evidence

(1) HOT PURSUIT OF SUSPECT
If officers are in HOT PURSUIT OF SUSPECT will excuse arrest warrant where one is otherwise required and will also excuse asearch warrant, where search warrant si required to arrest and apprehend the suspect, ex hot pusuit an dsusoect enetr his own hoe, they d not nned to enter hoem to arrest him

Ex) If suspect enter third persons home, they can enter that person home w/o first obtaining a search warrant

Caveat: the suspect must know that the police are pursuing him, the suspect must know f the pursuit, bc this exception is based on suspect “knowing” he is being pursured, may one of the three –mentioned above.

Only an emergency circumstance if suspect KNOWS that the police are pursuing him

(2) RISK TO POLICE OR PUBLIC SAFETY
risk to police or public safety: If police harmed during time to obtain warrant.
Must show an imminent risk to public or police safety, the warrant requirement will not be excused unless the gov’t can establish, imminent risk to safety of public or safety of police officers,

They must show that the risk was: (a) substantial and (b) likely to arise during the delay caused by



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obtaining the warrant. Must be imminent and substantial risk of harm to safety of public or police that likely to arise during delay caused by obtaining the warrant. NOTE: Public safety was at stake alone is not good enough

Ex) when a building is on fire, firefighters may enter the building in the name of public safety, bc of imminent risk of public safety, and this principle allows firefighters and inspectors to remain on premises for a reasonable time to investigate the cause of the fire.

EXIGENT CIRCUMSTANCE OF IMMINENT AND SUBSTANTIAL RISK TO PUBLIC SAFETY

However, entries made “days and weeks after fire” require the inspectors to obtain a warrant bc these entries are detached from the initial emergency.

Hot pursuit, and suspect enters house, they don’t need a warrant, the emergency circumstances of hot pursuit allows them to arrest without a warrant, but once they arrest him in his home without a warrant it s a lawful arrest, via emergent circumstances, and can ask to search.

(3) &RISK OF IMMINENT LOSS OR DESTRUCTION OF EVIDENCE
That in time it would take to obtain warrant, there is an imminent risk of loss or destruction of evidence. * This is the most used Exigent Circumstance.

As long as police don’t create emergency circumstance themselves
Look at courts discussion in Kings case.

Several FACTORS relevant to whether officer’s faced IMMINENT destruction of evidence



(1) The degree of urgency and amount of time necessary to obtain a warrant.
(2) a reasonable belief that evidence or contraband is going to be removed.
E.g. suspect about to wash clothing containing evidence, may be reason to enter residence without a warrant.
(3) Information indicating that they know police are on their trail.
(4) The ready destructibility of evidence (e.g. drugs, vs. stolen big screen tv not an example)
(5) The gravity of the offense for which the suspects are to be charged.
(6) Whether suspects are reasonably believed to have firearms in their possession.
(7) Whether probable cause is clear or questionable
If prob c is strong than that’s a better chance the ct will find emergency circumstances but if its weak than the ct will likely not find it and believe that officers should have had an independent magistrate make a prob c determination

The warrant requirement, will not be excused where the police, through impermissible conduct, created the emergency. The police must be responding to an unanticipated emergency, rather than creating the emergency themselves so that they can enter.

[RULE] The exclusionary rule DOES NOT apply where the police through impermissible conduct create the emergency themselves.

Look at the officers conduct to see if -in anyway unconstitutional or unlawful.



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[RULE] *If officers had probable cause and an opportunity to obtain a warrant for a significant time, before an emergency arose, then the emergency doesn’t excuse them from the warrant requirement.

E.g. officers obtain reliable info that good being stored in a warehouse and will be sold on Thursday afternoon, hen Thursday afternoon there is loss of evid, bc the goods will be gone, but the emergency circumstances exception, willl not permit a warrantless entry on Thursday afternoon, bc the officers had three days to obtain warrant before emergency arose and this risk of loss of evid was foreseeable, they knew on Monday that the evid would be gone thurs.

Invoked when serious consequences occur in time it takes to obtain a warrant. Length of time necessary to obtain a warrant, federal rule 41 and most states as well, authorize warrants to be obtained by telephone.

Examined in light of time it takes to obtain warrant over telephone

In order to obtain a telephone warrant, then officer seeking telephone warrant, has to prepare in writing an original affidavit and has to be read verbatim over the phone to the magistrate and the magistrate has to physically transcribe it and prepare for the record. And all this has to be done prior to the warrant being issued.

Government Argument



• Probable Cause STILL required, but may excuse warrant requirement.

Sample Analysis:


By seizing premises, prevents people from coming in and out, thereby eliminating risk of evidence being destroyed while evidence is sought, that always works where there are no exigent circumstances, but there must be probable cause.

Remedy: precludes, from entering evid, from case in chief, seized by police officers as a result of unconstitutional activity.

Evidence seized in violation of persons 4th am rights, is subject to suppression under exclusionary rule, suppression, prosecution cannot use evidence as proof of defendant’s guilt.

Exclusionary rule: evidence seized in violation of def constitutional rights cannot be used against them in the prosecutions case in chief. Cannot be used against them to prove guilt. (RULE)

[BURDEN ON DEFENDANT] Not automatic, triggered by def successful argument, on motion to suppress.



• To eliminate risk of destruction of evidence – and prevent people from coming in and out)


• The exclusionary rule is principally ___to deter police form engaging in unconstitutional activity by removing the incentive to engage in that activity since it will result in excluding the evidence, seized, pursuant to that unconstitutional activity.

• Both direct and derivative evidence is subject to suppression under exclusionary rule.


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


The WHOLE PURPOSE behind the EXCLUSIONARY RULE is that: “without this remedy the 4th amendment really has no value.”


Two rationales for excluding illegally obtained evidence:


o (1) the exclusionary rule is the only meaningful way that gov’t officials respect the 4th amendment rights of people, and

o (2) interests in judicial integrity require that courts not sanction illegal searches by admitting the fruits of those illegal searches in constitutional trials.


Exclusionary Rule (additional lecture notes):

---Its really the only way the assure that 4th am rights are respected and that cts should not use illegally obtained evidence at trial, bc that sort of sanctions the illegal activity

---Applies not only to direct evidence seized but to ALL fruits of that initial illegality, any evidence that was obtained illegally (“illegally obtained evidence”), must also be excluded.

---“Illegally Obtained Evidence” is also known as fruit of the poisonous tree, and the fruit being all evidence acquired as a result of that initial illegality. ---Cts. said derivative evidence should also be excluded.

---Weeks did not believe exclusionary rule should not apply to “state” or “local” police.

SESSION 6 CASES

Wolf v. Colorado (p.63)


• Due process clause case, whether policy activity “shocks to conscious.” If so than any evidence obtained pursuant to that



Weeks v. United States

• Background: 1914, exclusionary rule, created to operate in federal cts,
  
  
• Facts: Searched Mr. Weeks room, and seized papers to use against him
  
  
• Analysis: The Supreme Court found search undertaken without search warrant or any other lawful justification, no exception to warrant requirement. The search was therefore unconstitutional, and evid seized in violation of mr. weeks constitutional rights could not be used as evid of guilt at his trial bc without this remedy the 4th amendment really has no value.
  
  

Points to make (if arguing on exam) example:


• STEP ONE: Validity (legal or illegal) Search undertaken without a warrant, and no other lawful justification = unconstitutional


o NOTE: (If legal) lawful justification [Legal/Lawfully Obtained Evid = IS Admissible, and Court NOT required to exclude, Exclusionary Rule does not prevent evidence from coming in).


• STEP TWO: Illegal? Unconstitutional? (If illegal then)Unconstitutional = illegally obtained evidence seized in violation of suspect’s constitutional rights (i.e. 4th amendment rights).


• STEP THREE: Admissibility? [RULE] Evidence seized in violation of Suspect’s constitutional rights CANNOT be used as evidence of guilt at his trial.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Other methods of enforcing 4th am haven’t worked, the exclusionary rule it works, it deters police from illegal and unconstitutional searches, bc they know if they engage in an unconstitutional search than any evidence that they seize will be suppressed and not useable at trial. And went back to second rationale judicial integrity, constitutional courts, should not use unconstitutionally obtained evidence.

“Principle of Equity” (the important principle behind


this remedy/Exclusionary Rule)


• And the ct said that: there is a very basic principle of equity, the govt should not benefit from its own wrong, and if gov’t has committed a wrong in violation of 4th amendment then should not be able to use that evidence at trial to prove guilt of the defendant.



Held: ALL evid obtained during search and seizure in violation of 4 A are inadmissible in state courts.

More Discussion on Exclusionary Rule

• Other arg: excluding the evid, lets guilty people free, and that’s too high a price to pay for enforcing the 4th amendment.—bc that punished society as a whole and you should punish society for the officers mistakes, punish the officer but allow the evidence to be used.
  
  
• Ct says: judgeme made rule: Exclsusionary rule: is not a constitutional rule. Judge made rule to deter violations of 4th am and since its not a constitutional rule a ct is not constitutionally required to exclude illegally obtained evidence.
  
  
• Only applies to govt conduct, does not apply to gov’t actors. That evidence will be used at trial.
  
  

search should be excluded in violation of defendant’s due process rights. Note: Wolf made 4th am applicable to states, but refused to include the exclusionary rule.

• The court also said that, due process clause provides protection from police activity, bc if police activity is such that it “shocks the conscious” than any evidence obtained pursuant to that search –should be excluded in violation of defendant’s due process rights.



Mapp v. Ohio (p.65)

• Facts: Police tried to enter residence, concealing person of interest in a bombing, and looking for evid of illegal gambling. She wouldn’t allow them in, and phones her attorney who said don’t let them in. Ms. Mapp said show me your search warrant. NO warrant was offered into evidence, doubtful one ever existed. --She was arrested and handcuffed. Looking for fugitive and gambling evidence. They found pornography in bedroom. And she was subsequently charged and convicted of control of obscene material.
  
  
• Held: Exclusionary rule (created in 1914 Weeks) that applied to Federal trials, ALSO applied to state trials when the police are engaged in unconstitutional searches and seizures under the 4th amendment. (held federal applicable to state trials)
  
  
• Conclusion: The evidence should have been suppressed and reversed her conviction.
  
  

Other equally effective means of punishing violators.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Leon Held: the excl r does not apply, where law enforcement Officer has acted in reasonable good faith on the basis of an unconstitutional search warrant.

Leon [RULE]: Where law enforcement Officer has acted in reasonable good faith on the basis of an unconstitutional search warrant, exclusionary rule does not apply.

=GOAL  How to SUPPRESS Evidence (Defense Argument: with a warrant v. no warrant)

• Scenario #1: If no warrant = apply exception (exclusionary rule); --OR—
  
  
• ***SEE NOTES TO ADD TO LIST OF SCENARIOS***
  
  

=GOALHow to ADMIT Evidence at Trial


Scenario #1: There is a warrant but its invalid


o GOVERNMENT’S ARGUMENT: Officer has acted in reasonable good faith on the basis of an unconstitutional search warrant.


Prof. Lecture (directions)


 If there is a warrant but its invalid = apply “Good Faith Exception on basis of unconstitutional search warrant”

• Look at warrant –not valid
  
  
• Then determine whether officer acted in
  
  good faith
  
  
• If good faith, than evidence can be used
  
  against def, in prosecutions case in chief
  
  

• Does apply to actions of private citizens working in conjunction with police.


The exclusionary rule: only applies to unconstitutional violations, does not apply to illegal conduct, only applies to conduct that violates constitutional rights.

Ex) NOTE: It’s NOT legal to execute warrant at night without permission, but not a federal constitutional requirement, therefore the exclusionary rule does not apply. The exclusionary rule ONLY applies to police conduct that violates the constitution.

Impeachment: the Sup Ct has ruled that the exclusionary rule applies, only to unconstitutionally seized evidence, offered by prosecution in case in chief, the unconstitutionally seized evidence cannot be used by prosecute to prove guilt of defend, but CAN be used by prosecute to IMPEACH def, should he take to witness stand to prove guilt.

The IMPEACHMENT EXCEPTION: only applies to def testimony, cannot be sued to impeach other witnesses.

The GOOD FAITH EXCEPTION: Police departments, exclusionary rule hampers their enforcement efforts so in 1984, Leon case, the court adopted an additional exception, holding that the exclusionary rule doesn’t apply, where officer has acted in reasonable good faith, ___of search warrant. –[found pursuant to an unconstitutional search warrant, can be used if good faith?]

Under prior decisions, bc of absence of probable cause, warrant wasn’t valid, and evid seized pursuant to it should have bee suppressed under exclusionary rule, but the Leon ct chose to admit evid



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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


(check other session notes to make sure this is the correct rule and not missing any of the required elements*)


Criminal Procedure

Session 7 Notes

9/26/2012

Reasonable expectation of privacy
“legitimate expectation of privacy” = “reasonable . . .”

Determine: whether a person has a reason expectation of privacy in the area or thing that was searched, or leg possessory interest in the thing that was seized.

Def bears the burden of a reasonable expectation of privacy, that was violated by the challenged search or seizure

A def does not automatically have standing to contest the search merely bc the items seiz are owned by that person . .

A seizure would implicate a persons, personal 4th am possessory interest in the item seized.
Even though n standing to challenge search, there may be standing to challenge the seizure.

Minnesota v. Carter (1998) TWEN handout.

F: police officers see cocaine bagging operation through window
4th amendment only protects people in their own houses and overnight guests

didn’t matter, whether constituted a search bc they did not have standing
example: when to discuss standing.
Analyze and determine whether def had a reasonable expectation of privacy, then that’s where you can


4 exceptions to GOOD FAITH EXCEPTION: good faith exception will not apply:


• (1) Where magistrate issuing warrant was misled by information mentioned in affidavit. Where one preparing knew was false or should have known was false.


If affiant officer knows contains false information, than good faith exception doesn’t apply, bc should know its not a valid warrant bc hes the one who provided false info

• (2) If issuing magistrate wholly abandons judicial role
  
  
• (3) Doesn’t apply where no reasonable well trained officer should rely on warrant bc its “facially defective” (warrant must contain with reasonable particularity the place to be searched and items or searched or places to be seized, and if doesn’t contain that information, than the officer cannot have good faith belief that it’s a valid warrant).
  
  
• (4) If officer knows that affidavit does not support probable cause, then if ___..
  
  
• If facts in affidavit not sufficient for
  
  probable cause and magistrate issues warrant anyway, if off knows not sufficient probable cause, then good faith ex doesn’t apply.
  
  

WARRANT REQUIREMENTS (to be VALID)



(1) MUST describe with reasonable particularity the:

(a) place/items to be searched,
(b) items or places to be seized; &

(2) that the items are presently located at the place to be searched.


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Leslie Fischman


determine def has standing to challenge the conduct of the police.
4th am: protects “people” against unreasonable searches of their persons, houses, their papers, and their effects. –it’s a “personal” right that has to be invoked. So unless you see that a person is an overnight guest, err on the side of no standing. (see hypothetical handed out tonight*)

Ex) box on lap, standing? No, no expectation of privacy in her apt.
Does he have expectation of privacy to contents of box? Yes. So if they searched box, they have standing to officers search of box, bc he has a possessory interest.

Lecture:

Illegal Search and Seizure (Defendant’s Argument’s to Suppress Evidence)



The exclusionary rule, generally applies to ALL evidence, derived from the evidence pertained, pursuant to the initial unconstitutional conduct – everything that fall subject to it, subject to exclusionary rule.

Question: whether that derivative evidence is still “tainted” by the initial, constitutional violation.

A def can ONLY successfully challenge derivative tainted evidence if he was “standing” to object to the original unconstitutional conduct, so his own constitutional rights must have been violated for the def to challenge derivative evidence.

There are three exceptions: to the exclusionary rule as it pertains to derivative evidence Generally all direct and derivative evid is subj to the exclusionary rule



• A Def often seeks exclusion of evid found in an illegal search or seizure, that evid is called “primary/direct” evidence (evid seized to the unconstitutional conduct) – however the def may also challenge the admission of evid derived from that initial illegality, this evid is termed “derivative” evidence or “fruit of the poisonous tree.”

Confession Obtained AFTER an ILLEGAL Arrest

• This occurs: when a confession is obtained after an illegal arrest. The confession is the direct evid that was obtained pursuant to the initial illegality occurs when physical evid is located after, an illegal confession, -or this occurs in an in court identification procedure that is made following an illegally conducted pre- trial identification.


• 1. Independent source • 2. Inevitable discovery • 3. Attenuation


EXCEPTIONS (Exclusionary Rule)

#1: INDEPENDENT SOURCE EXCEPTION

When the police have an independent source for the evidence which does not involve any unconstitutional conduct then the evidence that was seized pursuant to unconstitutional conduct, -is not barred by the exclusionary rule, it will be admitted.

If at the time the officers engaged in an illegal search, and seized evid, IF at the time of search they has



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


sufficient prob c to obtain a search warrant and would have obtained a searchh warrant but for their illegal conduct at the time of the illegality, they had an independent legal source to that evid so it will be admitted.

Sup ct will allow evid to be used in prosecution case in chief.

The evidence is not deemed fruit of the poisonous tree since there was an independent legal source to it.

EX) Usually arise: where the police already have probable cause to obtain a search W, which would have lead them to the evidence, but instead of getting search warrant they conducted an illegal search.

If they already had sufficient evid to get warrant then the evid seized is the same evid seized constitution, so even though illegally obtain, its admissible

Independent Source Exception (ELEMENTS)*
--THE COURT SAYS THREE REQUIREMENTS:

1. THE METHOD BY WHICH THE POLICE SEIZE THE EVID IN QUESTION, MUST HA VE BEEN A CONSTITUTIONAL VIOLATION.

2. AT THE TIME OF ILLEGAL SEARCH WHERE THE EVID W AS SEIZED, THE POLICE MUST HA VE ALREADY HAD KNOWLEDGE THAT WOULD HAVE ENTITLED THEM TO OBTAIN A WARRANT. (THEY MUST ALREADY KNOW FACTS SUFFICIENT TO SUPPORT PROB CAUSE AT THE TIME OF THE ILLEGAL SEARCH)



3. THEY MUST SHOW, THAT THEY PROBABLY WOULD HAVE EVENTUALLY OBTAINED A SEARCH WARRANT, IF THEY HAD NOT ENGAGED IN THE ILLEGAL ACTIVITY.

Independent Source Exception/APPLIES TO: Applies to: primary or direct evid, as well as derivative evidence,
P

rimary evid is also subj to the indep source exception as well as derivative evid (other evid that was found as a result of illegally obtaining the original evid)

#2: INEVITABLE DISCOVERY

(Exception to Exclusionary Rule)

*tested the most often (and one of the prof favorites)

Evid which would have inevitable been discovered anyway thu other police techniques may be admitted to trial notwithstanding their unconstitutional conduct this exception is most often applied: when the evid obtained is a: body or weapon.

This exception allows the exclusionary rule –for derivative evid allows fruit of that illegal activity, or that unconstitu activity to be admitted at trial, IF the govt can show that the challenged evid would have inevitably been discovered through means completely independent of the illegal activity.

Nix v. Williams (1984)

F: while transporting, def from one state to the other, during the trip back. He was arrested for killing a child. On the trip from Davenport to Des Moines, the two officers, one of them was talking to the other one.



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


–and one gave a christian burial speech. –so this confession that as obtained by the officer was illegally obtained in violation of his 6th a right to counsel. But also –there had been a search party organized, to look for little girl.
Photographs of clothing, derivative evid, were admitted into trial
All derivative evid obtained pursuant to this illegally obtained confession. –they kept out all direct evidence but all the derivative evidence was admissible, and the ct held that the location of childs body and results of autopsy were admissible under inevitable discovery doctrine under exclusionary rule. –the state proved by a preponderance of evid, that the search party would have found the little girls body, shortly after, found with the officers with mr. Williams, even had he not led the officers tot hat body bc a search party was already put together to find her.

3. Attenuation

sometime link btw the initially illegality and the evid obtained is SO attenuated, usually in time, that it can no longer be meaningfully considered tainted by the illegal activity.

Cant be considered fruit of poisonous tree bc so attenuated from initial illegality.
Deterent effect of exclusionary rule, also fund equally attenuated

So cost of exclusing outweighs the negligible benefit of deterrence, therefore the evid will be deemed admissible.

No rule, determined on a case-by-case basis.

Wong Sung v. United States 371, US 471 (1963)
F: def arrested without prob cause, and the ct found that his subsequent confession was attenuated from the initial illegality, from the illegal arrest, bc he was released for several days after he was illegally arrested



and he returned to the police dept several days later and gave the incriminating statement, and the incriminating statement was a result of the illegal arrest. (not subj to suppression under exclu rule) –bc the connection btw illegal arrest and his statement became SO attenuated as to dissipate the taint.


Some EXCEPTIONS to Exclusionary Rule


(a) Collateral Use Exceptions:
------eg doesn’t apply to grand jury proceedings

For purposes of sentencing, parole, revocation proceedings (several procedures where exclusionary rule doesn’t apply). The one prof wants to remind you of is:

(b) “impeachment”:
----–can suppress evid, and the prosec cannot use that illegally obtained evid in case in chief as proof of guilt in its case m but it can be that very same evid, can be used to impeach witness should he take the witness stand.

(c) Use of Illegally Obtained Evidence on Cross- Examination (to impeach BUT not to prove guilt) -----[RULE] The prosecution may use illegally obtained evid, on cross-examination, so long as quest is within scope of direct examination, but illegally obtained evid si subj to suppression under the exclusionary rule in the prosecutions case in chief, CANNOT be used to prove guilt, but can be used to IMPEACH def as a witness.

Good Faith Exception to the Exclusionary Rule



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Leslie Fischman


–there are *4 exceptions –to warrant being

unconstitutional]


Quick REVIEW of 4TH AMENDMENT (*tested twice on

final exam, will be on both essays) see 4th a checklist on D2L TWEN –outline checklist

FOURTH AMENDMENT:

(definition)
says people should be free from unreasonable searches and seizures, and need prob cause.

(4th Amendment: FIRST you must establish)
-----1. Need govt conduct
-----2. Govt intruding into a reasonable expectation of privacy or a reasonable expectation of security

Prof. NOTE: Always estab: estb there was govt conduct bc it was the “local police” or DEA, FBI (sentence to estb govt conduct)

[RULE] Must have Government conduct, 4th amendment does not apply to conduct by Private Citizens (if you get a private citizen CONNECT them to government ---in order to apply 4th Amendment issues)

Private citizen: then 4th am doesn’t protect private citizen, then try to connect private citizen to the government.



Where the officer is acting in reasonable good faith, on belief that warrant issued Is valid when in fact its an unconstitutional warrant.

Prof. says to note: [whenever you see a warrant, it will generally be defective, and if its defective look to see whether the good faith exception applies, if it does hten everything fine, if it doesn’t then look for

exception to the warrant requirement


[END OF 4TH AMENDMENT NOTES]


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


SEIZURES

Seizures of the person: govt intrusion into reasonable expect of security

Arrests: form of seizure of a person, within scope of 4th a, and therefore must be reasonable.

What makes it “Reasonable”? –

Scenario ----When taken into custody against a persons will for purposes of interrogation or prosecution

INTERROGATIONS –CUSTODY-- “REASONABLENESS STANDARD”


What is reasonable?

--(1) Arrest must be made on probable cause, --(2) Reasonable belief that suspect has been or has committed a crime

----------(a) Reasonable Belief (definition):
A fair probability, more likely than not, that a violation of law has been committed and person to be arrested has committed it.

Public place –absent consent or exigent circumstances, a warrant is required to arrest a person in his home

recording

use of deadly force


arrest is most serious of 4th am seizures


INVESTIGATORY DETENTION_______

An investigatory detention: aka TERRY STOP: --------If police have reasonable suspicion, of criminal activity, or involvement in a completed crime, and that reasonable suspicion is supported by specific facts that the officer can articulate, than officer may detain that person for investigative purposes.
-------Although probable cause, isn’t required, still a 4th am seizure. If the police also have reasonable suspicion based on specific, articulable facts . . .

*INVESTIGATORY DETENTION = LIMITED FRISK ONLY

----------LIMITED FRISK ONLY--------- limited frisk: 4th am search –limited to outer clothing and protective frisk for weapons only.

--------------DURING A STOP --------------

Additional Reasonable Suspicion is Required to Search

Stop alone does not ok search:

A Stop requires addition “reasonable suspicion” to conduct a 4th amendment search.

-----(Prof Lecture RULE) not automatic w/ the stop there must be additional reasonable suspicion that suspect is armed in order for police to conduct that 4th a search.

---LENGTH OF DETENTION--- Length of Detention = “no longer than necessary”



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


[RULE] The detention must be NO LONGER THAN NECESSARY–to dispel or verify officer’s suspicion.

Probable cause arise (during detention) then the detention becomes an arrest and = an illegal arrest.

they must be limited if based on reasonable suspicion


only

---automobile stops: when police make a traffic stop, a passenger in the car, just like driver is seized for 4th am purposes and therefore may challenge the constitutionality of the stop.

---police may not randomly stop, vehicle for vehicle and registration checks –they must reasonably believe stopped car violated a traffic car, so long asthey believe traffic law vilated, even if alterior motive is to search (Wren case)

police may set up registration check points, to check drivers sobriety.

“neutral articulable standard” eg border patrol, sobriety checkpoints. –not a 4th a violation.

Occupants of premises: police may detain them, while executing a valid search warrant. Detained for a reasonable time, while executing a search warrant.

stopped recording –

a passenger in a car is detained just like a driver, one does not have same reasonable expectation of privacy in a car than in a house, much less in a car. In a car


has standing to challenge constitutionality of stop but not a casual guest in a home. Bc one has an expectation of privacy –it’s a diminished one in a vehicle, if you are a passenger in vehicle you have standing to challenge the stop bc you were in essence seized.

--stopped recording

Search of Luggage (example)
-----If all they have is reasonable suspicion then they are very limited, and therefore the conduct of the police is severely restricted –if they obtain probable cause by holding luggage too long, than illegally obtained evid, in violation of terry, so everything that flows form that is going to be unconstitutional.

Encounters (Do they constitute a Seizure? –NO) -----Encounters: are not seizures of person at all (recording) not considered an intrucion, doesn’t implicate 4th am, off need not abide by any standard of proof, cannot do search and frisk if encounter,?/ did it rise to an arrest?

Searches and seizures of evidence:

REQUIREMENTS:

1ST: need govt intrusion into a reasonable expec of privacy; and remember a 4th a search also occurs when the govt physically occupies priv property for purposes of obtaining information (eg trespassory search is a 4th am search just like intrusion into a reasonable expectaion of privacy)

(NOTE: Part ONE of your analysis is to Establish: government conduct and reasonable expectation of privacy. Step TWO of your analysis determine



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


whether that reasonable expectation of privacy was reasonable –discuss elements/requirements –see below)

Test for determining whether there was a Government Intrusion into and individuals “reasonable expectation of privacy”

DEFENDANT’S BURDEN----
two part test: ---(1) citizen must manifest a subj expec of privacy, and ---(2) estb by facts, and that subj interest, must be one that society is prepared to accept as objectively reasonable



(1) Citizen Manifested a Subjective Expectation of Privacy; and
(2) That the Subjective Expectation of Privacy –is “one that society is prepared to accept as objectively reasonable.


If there is a reasonable expect of privacy then def has standing to challenge the conduct of the govt and standing to –have the evid suppressed under the exclusionary rule.

REASONABLE EXPECATION OF PRIVACY (Examples of Places)

Greatest Expectation of Privacy = One’s HOME Remember: that one has greatest expectation of privacy in one’s own home.

YES= Reasonable Expectation of Privacy

1. ---one owns or
2. ---has right to business to be searched,
3. ---if one lives on premises to be searched,
4. ---or if one is an overnight guest, of owner of premise searched,.



[These people (1-4) have reasonable expectation of privacy]

-----vs.-----

NO= Reasonable Expectation of Privacy

---one to which public has access.
---Smell of ones luggage,
---areas outside ones home and curtilage, ---open fields land visible from a public place. ---helicopter hovering.

Foundational Requirements (4th Amendment) -----An issue always: reasonable expect of privacy bc its that + govt conduct that implicates the 4th am. Those are the foundational requirements.***

searches, with a warrant: searches w/ a warrant or without a warrant: if without a warrant, generally require searches be conducted pursuant to a warrant based on prob cause, unless it falls within on of the exceptions.

govt must estb a fair probability . . . .
recording
presently located in place to be searched, needs to be spelled out

[RULE] A Warrant will be issued, ONLY IF prob cause, seized evid to be found on persons or premises to be searched.

independent of the officer's conclusions.

INFORMANT TIP: “Totality of Circumstances Test”



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good faith exception: if search w is not valid, any search done pursant to an invalid wa, unconsti in viol of 4th am, and will be excluded at trial, but if police erroneously believe valid, that good faith belief in validity of invalid search warrant exception to

no good faith, if invalid on face no good faith excep, to prob cause

if the affiaint off, lied or misled the magistr --then doesnt apply

and doesnt apply if totally abandons judicial role.

break –stopped recording.

All warrantless searches are unconstitutional unless they fall within one of the recognized exceptions to the warrant requirement. If theres a warrant and its not valid and good faith exception doesn’t apply, then you have a search w/o a warrant, and to be reasonable need exception t warrant requirements:

1. Search incident to arrest (incident to a lawful arrest)
Can search: person of arrestee and area within immediate control –(definition of areas within immediate control= areas where suspect would be able reach for weapon or destroy evidence).

Can search: Entire passenger compartment of vehicle and any containers in the passenger compartment, can search a vehicle, to a recent occupants arrest, only within reaching distance of passenger compartment at time of search OR it is reasonable for officer to believe contains evid of the offense (Gant)



Application based on tip from informant, must meet totality of cir tests: Two of the circum, is whether:

• (1) informant is a 1. Generally reliable witness (credibility/reliability of informant) and
  
  
• 2. Whether facts set forth, where informant came by knowledge (basis of informant’s knowledge).
  
  

These two prongs (part of the “circumstances” aguilar-spinelli, when applying totality of circumstances test.

a search w issued by a magistrate on basis of application, invalid if, intentional or reckless false statements by the affiant. If affiant lies in the application. Then its an invalid warrant. If search warrant based on those lies, then good faith exception will not apply, warranless search if invalid, and . . . check recording.

magistrate (one of hypos tonight) –

warrant must be precise on its face, describe with reasonable particularity . . . .

warrant must be executed without unreasonable delay

pd must knock and announce, give time to reach and open door.

violation of knock and announce does not require suppression of evid found in a search, as long as the warrant is valid.

with a valid search warrant police may detain person on premises, for a reasonable time, but they may not search any persons found on premises, that are not specifically named on warrant. Unless they have reasonable suspicion o believe they are armed.


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


LIMITATIONS apply to: recent occupant of vehicle – does not extend to trunk of vehicle if there is a trunk

PROTECTIVE SWEEP-------------


1. When it applies:
---INCIDENT TO A LAWFUL ARREST

2. Level of Proof Required: ---REASONABLE SUSPICION 3. Scope of a legal sweep:

---Applies to a SEARCH OF PEOPLE

Incident to a lawful arrest –police may make a protective sweep, if the police have reasonable suspicion that accomplices may be present –a protective sweep is a search for “people” who may pose a threat to the officer. –don’t use protective sweep ONLY allowed “incident to a lawful arrest” – there has to be reasonable suspicion that there are other people on premises OR vehicle.

Search Incident to Arrest
(Additional Notes/Requirements)
-a search incident to arrest must be contemporaneous

in time prior -if at the time of search the police already have prob c to arrest the suspect.
-a search is incident to arrest even if it occurs sometime after the arrest and only if the search is of objects of person at the time of arrest.

-caveat: search incident to arrestthe arrest must be a lawful arrest: must be a custodial arrest, and must be supported by “probable cause” to arrest.
-automobile exception: if police believe contains fruits instrumentalities or evid of crime, can search vehicle, r container, that may reasonably contain, item for which they had prob c to search.


(Atwater case)
CITATION ONLY = CANNOT SEARCH VEH.


-if warrantless search of veh allowed under this exception: under the general automobile excep
-if police have PC only as to a container: eg suitcase full of contraband –then they may only search trunk for the container cannot search other parts, once they find it, the search has to stop, unless they find something else, then that expands the search.
-proper stop or arrest: that does not mean that the officer has right to search any person of passenger, in vehicle, no matter what driver has done, can search passenger ONLY if police have prob ca (search incident to lawful arrest passengers) needs prob c to arrest passenger to search a passenger.
-check recording . . .

Even if officer under local law could have made custodial arrest for traffic violation, if he chooses to issue “citation only” then he cannot search the car

-if car impounded –pursuant to police procedure – can do inventory search of car and closed containers – at police station or impound lot –this search is allowed even without prob c, or ___
must satisfy two conditions: (IMPOUND requirements):
(1) the police must follow standardized procedure so that person conducting search doesn’t have unbridled discretion; and
(2) police must not have acted in bad faith for the sole purpose of searching the car for evidence.

STOP AND FRISK

Police may stop a person w/o pc to arrest, if they have reasonable suspicion that criminal activity is going on


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


If they believe suspect is armed and dangerous at the time of stop, then the officer can frisk

Stop and Frisk (Requirements)


1. particular facts (that give rise to)
2. reasonable suspicion
3. must be no longer than necessary, nor intrusive


NOTE: IF it takes LONGER than necessary and is TOO INTRUSIVE then = it becomes a Full Scale Arrest.


(REQUIREMENTS) Stop and Frisk
stop and frisk require: particular facts that gave rise to reasonable suspicion

STOP: Is a 4th a seizure, but since on reason suspicion and not probable cause, must be no longer and no more intrusive than needed to dispel or verify officer’s suspicion. If the stop becomes too long and too intrusive that it turns into a full scale arrest –what do they need “probable cause”

For your Analysis (key discussion points*):

How long? how intrusive? look at the search -is it more than a quick pat down for weapons? terry issue?

CONSENT

a warrantless search is valid: if the police have a voluntary and intelligent consent

knowledge of right to refuse consent is not a pre-reg to estb the consent is V and I


V and I : ct uses totality of circumstances test


and knowledge : is one of circum to be considered


scope: of search limited by scope of consent
consent: generally extends to all areas, that reasonable person believes consent would extend. “reasonable person test”

police can make reasonable mistakes as to scope of consent since it’s a “reasonable person test”

people may consent to search, and any evid found, may be used against other owners or occupants

a search is valid if consent to search, that police reasonably believes has authority to give consent but actually doesn’t/

whether a person has authority to consent is a “reasonableness test”

shared premises as against a co-tenant –georgia v. Randolph

if one co-tenent consents and other doesn’t –not valid consent

PLAIN VIEW

anytime police see evidence in “plain view” when they are “leaglly” in the place where they see it, and have “probable cause” upon seeing it, to believe its evid of criminal activity, they may seize it.

the incriminating nature of items seized, must be immediately apparent upon seeing it.
then that’s a search which requires prob cause, have to have
once they seize the item that they have prob c to believe is evid of crim activity, they cant search it, they can only seize it, they cant search it.



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


plain view doctrine: allows warrantless seizures, it does not allow warrantless searches.
[see also plain touch and smell] * comes up all the time

issue: are they legally in the place where they see it in plain view?
was there an exception to warrant requirement to get them in def room, where they see evid in plain view

EXIGENT CIRCUMSTANCES:
police are not required to obtain warrant, where emergency cir exist
based on fact that time it takes for police to obtain search warrant some type of severe ham may occur exigent circumstances exception: applies when police themselves do not create emergency by enagging in or threatening to engage in conduct in violation of 4th a (Kentucky v. king)
risks that trigger exceptions:
1. Hot pursuit (if officers are pursuing a felony suspect and have reason to believe he entered a particular premise, they may enter that premise, without a warrant to search for that felon and arrest him, they may seize any evid they see in plain view while in hot pursuit –caveat: the suspect must be aware of the pursuit)
2. risk to pub or police safety: a warrantless search is allowed, if danger to life is likely to occur if police don’t act quickly. –this is a difficult one for govt – (govt must prove imminent and substantial risk to public or police safety and likely to arise during the delay cause by obtaining the warrant) eg house on fire. –that would allow fire dept to enter without a warrant. –most often used in mcq, and hypo: destruction or loss of evid, without a warrant, provided they have probable cause, all of these exceptions, excuse from warrant BUT does not excuse them from having prob cause, NONE of these excuse prob cause EXCEPT the terry stop and frisk, they



merely excuse from conducting search seizure without a warrant –provided search or seizure is necessary to prevent possible imminent destruction of evid, the evid doent have to be in process of being destroyed, just a belief that an imminent risk that it “will be destroyed”

Exclusionary Rule (see supra)
applies to 4th am, 6th, and 5th amendment

CRIMINAL PROCEDURE SESSION 8 REVIEW

The right to counsel attaches at the first formal proceeding when a defendant learns of the charges against him and has his liberty subject to restriction, whether or not a prosecutor is aware of or involved in that appearance. Rothgery v. Gillespie County, 554 U.S. 191 (2008).

The 6th Amendment right to counsel applies in felony prosecutions and is applicable to misdemeanors as well, at least where the defendant receives a jail term. Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972).

Indigent defendants cannot receive even a “day in jail” if they did not receive their right to counsel.

As long as an indigent defendant is not sentenced to imprisonment, the state is not required to appoint counsel for him, even if the offense is one which is punishable by imprisonment. Scott v. Illinois, 40 U.S. 367 (1979).

Even if the offense charged is a felony under state law, the state does not have to supply an indigent with counsel as long as the judge is willing merely to impose a fine.



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


A defendant who has not been afforded the right to counsel may not be sentenced to a term of incarceration even if the sentence is immediately suspended and he is placed on probation. Alabama v. Shelton, 535 U.S. 654 (2002)

Indigent defendants in federal and state cases have a right under the 6th Amendment to appointed defense counsel at critical stages of the prosecution.

A critical stage is any stage where substantial rights can be won or lost. And any stage where counsel is necessary to ensure that a fair trial will take place at a later time

The Court has determined that counsel is required at:

● Post indictment lineups
● Preliminary examination where judge determines if there is enough evidence for trial
● Arraignment where D is required to plead
● All pretrial motions
● Long enough before trial to assure reasonable trial preparation

Counsel is not required at:

● Lineups before formal charges take place ● At time of arrest
● After arrest if there is no interrogation
● At bail hearing

Competent defendants may waive their right to counsel and proceed pro se.

Waivers of the right to counsel must be “knowing, intelligent, and voluntary.”



Trial courts should not accept a waiver of counsel unless and until they obtain the defendant’s assurances on the record that he or she fully understands the significance and consequences of such a waiver

Defendants have a right to the effective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must establish ordinarily that counsel committed actual, specific errors.

Ineffective assistance of counsel is established by using a two-part test that assesses the reasonableness of counsel’s performance and whether or not defendant was prejudiced by that performance.

Indigent defendants must receive at government expense the basic tools necessary to assure that they have meaningful access to justice at trial and on appeal.

Appellate procedures are subject to the standards of the 14th Amendment equal protection and due process clauses.

Indigent defendants have the right to appointed counsel for the first appeal as of right under the equal protection

Indigents undertaking state discretionary appeals and appeals to the United States Supreme Court are not entitled to the appointment of counsel.

Criminal Procedure Session 9
10/8/12 (LAX)


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


Police Interrogations and Confessions

When invoking the fundamental fairness, concept of 14th A due process, in 1936 –Brown v. Mississippi, Ct ruled that:


• a statement obtained by police that was not the product of voluntary choice by the suspect could not be admitted at trial.

Coerced Confessions (issues re):

• ---Their unreliability.
  
  
• ---Revulsion against the methods used to
  
  extract those ---involuntary confessions.
  
  Brown v. Mississippi
  
  

• Police violence in court, declared difficult to conceive of methods more revolting to sense of justice than those used by police in Brown.
  
  
• F: 3 defendants, were told by the police that they would be physically tortured until they confessed. One of the def was hanging three times from a tree, and severely whipped.
  
  
• H: The due process requirement meant that the state action whether through one agency or the other, --fundamental principles of liberty and justice.
  
  

• Make their decisions on “the totality of the circumstances” to determine whether confessions reliable and “product of free choice” and in considering totality of the circumstances, some “factors” are to be considered:

----1. The number of interrogators ----2. The length of the questioning ----3. The place of the questioning ----4. Whether the right to counsel was denied.

----5. And the characteristics of the suspect. (eg age, physical, mental condition, experience, etc.)

Concepts of Coercion and Unfairness

• Inherently subjective and difficult to define (at first) overtime, ct expanded definition
  
  
• To include physical and psychological – that falls short of police brutality in brown v. Mississippi.
  
  Custodial interrogation: is inherently coercive.
  
  

allowed despite their apparent reliability – bc offended courts sense of “fundamental fairness.”


Some confessions not allowed bc not the product of def “free choice” even though appeared reliable, and practice by which they were obtained didn’t seem inheritably objectionable.


In applying “Voluntariness Test” –to

determine whether confession violates def due process rights.


1936-1964 : Courts used fundamental rights approach, to admissibility of confessions in state courts
to determine whether confession violated fundamental rights, the court attached very much important, to whether the confession was “voluntary”


• Voluntariness Test: (to apply) some confessions were not allowed bc the means by which they were obtained made their reliability doubtful, under the voluntariness approach, some confessions were not


POLICE INTERROGATION & CONFESSIONS


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


• First step to expand definition of “Coercion” –see Ashcraft v. Tennessee

Ashcraft v. Tennessee (p.345)

• F: Held def for questioning for too long, confession after prolonged communication incommunicado, in violation of due process.
  
  
• H: Sup Ct involuntary per se. coerced.
  
  
• C: Involuntary per se, be product of
  
  inherently coercive interrogation.
  
  
• The majority of the court never created due
  
  process safeguards for police conduct during interrogation. –the ct ultimately narrowed the focus.
  
  
• (H) *Coercive police activity is necessary to a finding of involuntariness.
  
  Colorado v. Connolly
  
  

• Connolly Ct held: only statements procured by coercive official tactics, should be excluded as involuntary.
  
  
• The personal characteristics, of the def, are constitutionally irrelevant, absent proof of coerscion, brought to bare on def by the state.
  
  
• To suppress a statement under the due process voluntariness standard the def must establish that the statement was extracted form him or her, by means of coercion and was not the product of voluntary choice.
  
  
• The def must make a showing that the police subject him/her to coercive conduct, and demonstrate that the coercive conduct by the police operated on him to produce an involuntary statement.
  
  
• Once he proves coercion, now his particular characteristics become relevant*
  
  

(but they are irrelevant absent proof of coercion).

Right to Counsel during the Interrogation Process

Crooker v. California

H: confession held to have been voluntary and therefore admissible despite fact that accused had successfully ---called his lawyer.

Spano v. New York

• A majority of court found a confession obtained after an overnight, 8hr, questioning session was involuntary. –and majority: applied involuntariness criteria

• Confession should have been excluded on right to counsel grounds.

• Def in Spano had already been indicted by time of the questioning

• b/c an indicted suspect has right to counsel, at arraignment following indictment, then right during period when arraignment should have taken place.


------TEST: Involuntary Confession------

The test (*Remember):

**Suspect must make a showing, that police subjected him to 1. Coercive conduct, and that 2. The conduct operated on him, given his particular characteristic and condition of interrogation –to produce an involuntary confession. ********

6th Amendment Right to Counsel Approach



• Argument –right attached when indicted • Accepted by court in –Massiah v. United


States


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


Massiah v. United States (p.352)

• F: indicted for federal narcotics violation, pled guilty and was released on bail. Conversation with co-defendant, recorded, wired conversation, police listening.
  
  
• His right automatically attached whether he knew it or not –doesn’t have to be invoked it automatically attached.
  
  
• Attaches: at the first appearance before a judge.
  
  If Right to counsel / violated by gov’t use of informant  MUST show there was “deliberate elicitation.”
  
  Scenario: someone trying to elicit Incriminating statements from defendant, while out on bail or awaiting trial.
  
  Deliberate elicitation is required by the government (6th am violated when govt used an informant –codefendant, to deliberately elicit statements form him while out on bail and awaiting trial).
  
  

• (Nix v. Williams)
• 1977 –Brewer: Ct –Massiah Doctrine


Brewer v. Williams


Soon after Massiah –1964: Court took a step in expanding the 6th am right to counsel, into the the pre-indictment stage of a criminal proceeding, in

Escobedo v. Illinois.

-
[RULE] 6TH AMENDMENT = Automatically attaches at time def is formally charged, at the first


appearance before a judge.


What constitutional rights did this conduct violate: 6th A Right to Counsel


6TH Amendment RIGHT TO COUNSEL = automatically attaches at FIRST appearance before a Judge.



Escobedo v. Illinois (p.356)

• Holding: The court later said, Escobedo was 5th amendment, not a 6th amendment case.

• Facts: Mr. E gave a confession, after he made repeated attempts to see his lawyer. And after lawyer came to police station and was turned away.

• He was convicted of murder.
• H: inadmissible, bc
• Confession occurred before he was

formally charged.
• If pre-indictment def were to be granted

Massiah rights this would create a


Federal agents deliberately elicited statements from him. --All formally charged def, possess a 6th a right to consult with counsel when police are deliberately trying to obtain incriminating information from them. And court extended its rule to def who were interrogated by secret agents, bc if such a rule is to have any efficacy it is to have . . .??? surreptious invest, as well as those conducted by police.


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


significant reduction in the number of

confessions that the police would obtain.
• Ct. relied on Massiah and 6th Amendment.


H: A person is not accused, and has no 6th a right to counsel UNTIL her has been formally charged, by state, of by indictment, or some other formality.


Massiah Doctrine, 6th A right to counsel –has been applied to deliberate elicitation by means of :informant in jailhouse cell, where informant is merely a passive listener (the 6th a right to counsel is NOT violated ---the govt must DELIBERATELY ELICIT).*


The holding in ESCOBEDO –moves attachment to period before formal charges, ultimately lost all of its 6th Amendment substance bc the court reinterpreted Escobedo as a 5th Amendment case, not a 6th A right to counsel case.


*The primary concern of Massiah line of decisions is: secret interrogation by investigatory techniques, that are the equivalent to direct police interrogation.



Deliberate Elicitation: bares resemblence to 5th Am functional equivalent interrogation, ct has never treated 6th am deliberate interro and 5th am functional equivalent interr, as interchangeable, --the emphasis on te 6th A cntext is on the deliberate or intentional nature of the gov teffort to gain incriminating evidence, while test for interrogation in Miranda is much broader.


MIRANDA

• Test: whether police enagaed in conduct they could reasonably foresee would result in an incriminating statement from the suspect.
  
  
• 6th am right to counsel must be “deliberately elicited,” govt must intentionally attempt to get an incriminating statement from the defendant.
  
  
• (deliberate elicitation has to amount to a) Functionally equivalent of interrogation – focuses on ___ of suspect
  
  
• While Massiah Doctrine and __ focused on state of mind of the officer.
  
  

• *The triggering event for application of Massiah Doctrine is: The first appearance before a judge OR formal charges – whichever comes first (it is at that point that the suspect becomes the accused and is entitled to the assistance of counsel under the 6th amendment).
  
  
• Up until that point, the govt may deliberately elicit incriminating statement from the suspect without violating 6th a right to counsel.
  
  

If coercive conduct and overbears the free will of def, may violate due process, and might violate 5th am, but does not violate 6th am.


No 6th amendment right to counsel, if does not meet one of two requirements above, but DOES have 6th a right, under Miranda. (6th amendment is Offense specific)*


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


As with any constitutional right, the 6th amendment right to counsel may be weighed. This issue arises HERE when police interrogate someone whose right to counsel as already attached.

Deliberately Elicited Statements, made absent counsel, may be Admissible IF they can demonstrate Defendant “voluntarily, knowingly, and intelligently” waived his right to counsel and that his waiver was communicated to the magistrate.

NOTE: Deliberated elicited, absent counsel, - admissible, if can demonstrate def voluntarily waived his right to counsel.

Waiver (standard)
The standard for waiver is knowing, intelligent and voluntary. [same standard for Miranda]
A person cannot waive a constitutional right unless he “knows” of the constitutional right.



Holding: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privileges against self- incrimination.

Court’s Rationale: The Miranda rules, were required in order to safeguard a suspects 5th amendment right to remain silent in the inherently coercive coercive custodial interrogation atmosphere.

F: Did not specifically request counsel, found no constitutional violation.
Facts: This case deals with the “admissibility of statements obtained from an individual who is subjected to custodial police interrogation, and the necessity for procedures which assure that the individual is accorded his privilege against self- incrimination.” Defendant was arrested by police and taken to a special interrogation room where he signed a confession (and inculpatory statement, upon being questioned), which contained a typed paragraph stating that the confession was made voluntarily with full knowledge of his legal rights and with the understanding that any statement he made might be used against him. His confession was admitted into evidence and he was convicted of kidnapping and rape.

Issue: (1) Under what circumstances can a defendant intelligently waive those rights? (2) the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. (p.13).

Rule: no person shall be compelled in any criminal case to be a witness against himself, and that the accused shall . . . have the Assistance of Counsel – rights which were put in jeopardy in that case through official overbearing. (p.12)


Vignera (p.365)


Two Offenses are considered different if each requires


proof of an additional element that the other does not require:
Blockburger


Miranda v. Arizona (p.362)

• H: Confession made during custodial interrogation is inadmissible, unless suspect receives procedural safeguards, forewarning his rights, and voluntarily, knowingly, and intelligently waives those rights.
  
  
• Cut off questioning, if suspect invokes is right to remain silent, or consult with counsel, even if his invocation of those rights, follow a waiver of the rights.
  
  

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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


F: convicted of first degree robbery US Sup ct reversed his conviction

Westover v. United States (p.365)

F: arrested for 2 robberies, got a signed confession from him
Court did not find right o attorney
Sup ct reversed his conviction

Found he had knowingly intelligently, voluntarily waived his right to remain silent, and right to atty prior to his confession.



takes a heavy toll on individual liberty, and trades on the weaknesses of suspects.
--So courts found this “usual practice” of incommunicado of interrogation, ct found this practice of “incommuhnicado interrogation” (where suspect not allowed to talk to anyone other than interrogations) at odds with 5th am, protection against self-incrimination.

To dispel inherent compulsion in this practice –ct said no confession can truly be a product of suspect free choice.
Bright line rule: that a confession made in response to custodial interrogation in the absence of specific warnings, was compelled IS compelled self- incrimination and automatically inadmissible in violation of the 5th amendment.

Foundation underlying 5th am –requirements govt must –give dignity to citizens.

Court established 2 objectives for safeguards
1. Adequately and effectively inform a suspect of his rights
2. To ensure that the exercise of those rights, by the suspect, is fully honored by the police
If suspect exercises any of his rights, has to be honored by police
Ct held: the fact of custodial interrogation, requires police to comply with Miranda safeguards.

What court didn’t do was define: what is custody or what is interrogation.
Bc these warning ONLY apply when a suspect is subjected to interrogation while in custody.

RIGHTS

---A suspect MUST be informed of his rights through the court stated warning of the right to remain silent and the fact that anything he says can and will be used against him in court.



•


California v. Stewart

F: purse snatching robberies.
--Third degree techniques, of abuse, object of concern --Court believed that psychologically oriented techniques, view as creating intimidation
--And court believed that psychological techniques creating intimidation was equally destructive of human dignity
--Therefore, court believed judicially created protective devices, to dispel the compulsion inherent in custodial surroundings.

Techniques/employed in police manuals around the


country

-Place suspect in isolated and unfamiliar surroundings. -try to minimize the serious of the offense
-telling him that his silence indicates he was something to hide.

-bring up costs of hiring a lawyer, handle this yourself

Court looked at techniques being used.

--Noted that such intimidating techniques may produce a confession that is not voluntary, nevertheless, such techniques were menacing and full of the potential for compulsion.

--Court said even without using any of these techniques, the very fact of custodial interrogation,


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


---The suspect MUST also be informed that he was the right to consult with a lawyer PRIOR to interrogation
---And have the lawyer PRESENT with him during the interrogation

---And that if he is “indigent” a lawyer will be APPOINTED to represent him.

Right to silence and _____, appointment of counsel (two pre-req) must be given if there is ANY doubt as to suspects capable of obtaining counsel.

Help overcome the inherent coercion of the atmosphere. The atmosphere alone is coercive. These warning will help dispel some of that coercion that the court believes in inherent in ANY police dominated interrogation atmosphere.

The ct says: the functions of the warnings

1. First, they inform suspect of rights, enable him to make an intelligent decision on whether or not to exercise rights
2. Show police prepared to honor his rights

3. Importantly, that the warnings make him (suspect) AWARE that he is NOT in the presence of people acting his interest.

First tier and second tier safeguards:

1. The warnings themselves and their function
2. 2nd tier warnings –warnings alone not sufficient to protect exercise of 5th a privilege
In addition to being given warnings, suspect needs and opportunity to consult with counsel, bc if not given opportunity to consult with counsel prior to interrogation. –will overbear his will even after warnings are given
2nd tier protection –allow him to consult with atty before being interrogated.



Procedural Requirements (aka 2nd tier safeguards) : There to guarantee that rights described in the warnings will be respected if suspect decides to invoke the rights.

-The right to remain silent: under Miranda, suspect may invoke his right to remain silent, in any manner, any time, prior to, or during questioning.

-When he invokes right to remain silent: the interrogation stops. –what is he waives right to remain silent.

-He can invoke, even after he has initially waived. When he does invoke, the interrogation MUST stop! If police obtain an incriminating statement after – police coercion.

Honoring suspects right to counsel:

---If suspect says he wants an attorney, the interrogation has to stop until an attorney is present.

---After suspect invokes his right to counsel he must be given an opportunity to confer with counsel before any interrogation or further interrogation and he has right to have counsel present during any subsequent interrogation.



The right to counsel provided by Miranda –different than 6th am right to counsel (which attached automatically)

Right to counsel under Miranda –must be invoked by the suspect


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman


RIGHT TO COUNSEL ISSUE ARISES –AFTER ARREST, AND BEFORE 6th amendment attaches.

====================================== Order in which Right to Counsel Issues Arise =====(SEQUENCE OF EVENTS)=====

1. Arrest
2. Right to Counsel (under Miranda)
3. 6th Amendment Right to Counsel ======================================

MUST HAVE ARREST = TO APPLY MIRANDA

IF NOT IN CUSTODY & NO ARREST
= NO MIRANDA ======================================

Issue arises After arrest, before 6th amendment attaches. ======================================

Some more lecture notes on Miranda:

-----Procedural safeguard: to protect def right o remain silent
-----And 5th am right to counsel under Miranda, only if suspect decides and invokes it

-----6th am right to counsel attaches automatically (*know what point it attached)

Miranda (like 6th am right to counsel) may be waived by defendant

Waiver is NOT presumed
from a suspects silence after warnings.



Nor may waiver be presumed, that subject eventually confessed.

There MUST BE EVIDENCE IN THE RECORD. – that the suspect understandibly rejected the offer of counsel, and understandably rejected offer to remain silent



•

•


1. Requires evidence showing “understandably rejected OFFER OF COUNSEL; and
2. Requires evidence showing “understandably rejected OFFER TO REMAIN SILENT.


Invoking (after he already waived)

• Suspect may invoke his rights after answering questions, thereby withdrawing any, waiver he may have been given at the outset.


Lengthy interrogation
Incarceration
Or any evid that suspect was threatened tricked or cajoled into waiving his Miranda rights.


IMPORTANT TO REMEMBER ABOUT MIRANDA SAFEGUARDS: only apply when suspect is subject to a custodial interrogation by the govt, not applicable to general on the scene questioning as to facts surrounding the crime or other general questioning of citizens in the fact finding process.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


The court recognized: that Congress and the States had the power to establish alternatives for protecting the privilege against compulsory self-incrimination, as long as they as are AS effective as the warnings announced in this case.

Important Note:

If NO warning, or DEFECTIVE warning = then statements/confessions are INADMISSIBLE.



Mir rules do not apply to general on the scene questioning, or other general questioning in the fact- finding process.

Any prior awareness of Mir rights,
If a person in custody is subjected to questioning, that person must be informed, in unequivocal terms of their Miranda rights.
The govt MUST inform the person of their rights, even if the suspect says “I know them.”

Two rights (crucial): 1. Right to remain silent; and 2. Accompanied by explanation, if you don’t remain silent anything you say can and will be sued against you. (tells suspect that they don’t have his best interests at heart. 3. Right to have an attorney/counsel (and if any question that a suspect is indigent, then let him know that suspect will be appointed one if he cannot afford one)

A suspect is always free to exercise the privilege. If the suspect unambiguously indicates at any time prior to or during questioning that he wishes to remain silent, the interrogation MUST cease.

Well if the questioning has to stop, can it resume?
If suspect states that he wants an attorney, thereby invoking right to counsel, the questioning has to stop until an attorney is present. And the question becomes, well can they at some point resume interrogation.

======================== Waiver



Statement or confessions preceded by no warning or defective warnings are inadmissible to – prosecute a case in chief


But those statements made pursuant to no warnings or defective warnings can be used to impeach the def credibility should he take the witness stand.


Criminal Procedure Session 10 Notes 10/17/2012

5th Amendment

Police must follow Miranda rules, to interrogate, a suspect in custody
Miranda rules, safeguard against compulsory self- incrimination

Must be followed in the absence of other procedures, equally effective of informing suspects of right to remain silent.

Rules apply when, subjected to police interrogation, while in custody
Custody: (definition) when freedom of action is deprived, when a reasonable person under the circumstances would not feel free to leave.



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If suspect appears without an attorney, govt burden, that suspect knowingly, voluntarily, and intelligently waived his right to an attorney (preponderance)

A waiver does not have to be express, it may be implied, through a def silence, coupled with an understanding of his rights, and subsequent conduct indicating that he waives the rights.

Any statement in violation of Miranda rules, may not be admitted into evidence, whether inculpatory or exculpatory, cannot be used in evidence.

Should a suspect invoke the Miranda rights and stand on the privilege and not speak to the officers, the prosecution may not make reference to that at trial, that the def would not speak in the face of accusation of criminal activity.

Miranda Court

Neither the supreme court, federal, or state court, have taken a strict approach to application of Miranda vs. Arizona.

Miranda Court left questions, a lot of questions, open for resolution in other cases. The Miranda court did not go into an explanation of the definitions. (into the two concepts: custody and interrogation, and knowing and intelligent waiver)

The Miranda court described broadly, the concept of “custody” as “deprived of freedom of action in any significant way” and described interrogation as “subjected to questioning”

Waiver not voluntarily if, suspect threatened, tricked, or cajoled.



Case-by-case scrutiny of the “totality of circumstances” would ne necessary to assess the validity of any waiver.

What are adequate warnings? What are adequate invocations? What are adequate retractions?

The suspect has no right, that if he invokes right to silence that police must stop the questioning, the suspect does not have the right to know what will happen if he invokes*

A lawyer does not have tot present at all times to advise, prisoners or suspects at the station house*

Miranda opinion only applies to “custodial” questioning.
By custodial questioning: questioning started by police officers, after taken into custody, or deprived of any freedom. How do we know when a suspect is in custody? Bc if not in custody than they can interrogate him all day long . . . (issue)

Miranda Rights: How do we know when a suspect is in custody?

Determined by an “objective” reasonable person test

Whether a reasonable person is the position of the suspect would believe that he was not free to leave. If a reasonable person under circumstances would believe he or she was not free to leave then Miranda custody exists.

Subjective intent of police is not relevant to the determination of custody
A suspects own “subjective belief” that he was not free to leave or go, is also irrelevant.



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Leslie Fischman


It’s purely a reasonable person in suspects position test.

Yarborough v. Alvarado (p.384) (2004)

F: 17 year old was brought to station with parents, and waited two hours before questioning began. During the interrogation, Alvarado, was not told he could not leave until he confessed. So 2 hour interrogation in an interrogation room.

H: A reasonable person in his position would have felt free to leave.

APPLYING AND EXPLAINING MIRANDA CUSTODY

JDB v. North Carolina, 131 S. Ct. 2394 (2011)

F: 13 yr old 7th grade student pulled out of classroom and interrogated.

Court said that adults will react differently to a situation than will children, therefore the age of a minor should be taken into account.

Court said: Holding: The age of a child if known or apparent at the time of interrogation, should be considered in deciding whether a child is in custody for purposes of Miranda warnings.

Rule: The age of a child, if known or apparent, at time of interrogation, should be considered in deciding whether a child is in custody for purposes of Miranda warnings.

Whether a person is in custody is an “objective inquiry”



Children will often feel bound to comply with police questioning, when an adult under the circumstances would feel free to leave. And the age of a child, if known or apparent, should be considered, to decide whether a child is in custody.

Other Objective Circumstances:


• •

•


Length of questioning
The number of officers present, whether it’s a reasonable number, or a coercive number--
The court said: adding age factor to children

o Are in a position to better objectively, evaluate the custody question. -The court says it’s a common sense evaluation


The added one item to the Miranda equation and that’s: the age of a minor suspect if known or apparent to the officer at the time of interrogation.

The Dissent: believed that the majority complicated the Miranda equation, and called this an extreme makeover of the requirements first imposed by the Miranda courts in 1966.

Age DOES play a part in the custody determination of a minor, if age is known or apparent at time of interrogation. (RIPE for TESTING, on the BAR)

If an interrogation meets all standard requirements for Miranda warnings, including this new requirement, custody requirement, the warnings MUST be given



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


no matter how minor the crime. And regardless of the fact that no jail sentence may be imposed for that crime.

Purpose of Miranda Warnings

The purpose of the Miranda safeguards are to ensure that police don’t: coerce, trick or trap, suspect to confess, --to relieve the inherently coercive police dominated atmosphere. (*rationale behind Miranda)

The Miranda warnings are intended to relieve or protect against the inherently coercive police dominated atmosphere. (know this language*)

If there is custodial interrogation, and not a police dominated questioning atmosphere, than Miranda warnings don’t apply, be purpose for them being there doesn’t exist.

Suspect Voluntarily Goes to Police Station

The court has also held that if a suspect goes to a police station on his own, voluntarily shows up, or voluntarily agrees to accompany the police to the station house, even police station questioning designed to produce incriminating statements, may not be considered custodial interrogation.

Miranda Court (continued)

Combination of custody and interrogation that triggers the inherent coercion that requires the Miranda safeguards.


Interrogation


What constitutes interrogation within the meaning of Miranda?

Rhode Island vs. Innis (p.390) (1980)

F: taxicab driver shot in the back of the head. Missing shot gun. He confessed, and would show them where the gun was located.

This court further defined “interrogation”: interrogation only extends to words or actions of the police officer.

Interrogation (definition): Express questioning or its functional equivalent, [that is,] any words or actions on the part of the police, that the police should know, are reasonably likely to produce an incriminating response from the suspect.

(Changed “elicit” to “produce”)

Court believed that there was no reason to expect that this conversation would produce an incriminating response from Mr. Innis. An that they cant be held accountable for the unforeseeable results of their conversation.

INTENT of the police officers: NOT THE ISSUE (in this case). But if the police intended to invoke an incriminating response, but the ploy is not reasonably likely to elicit a response, then under the Innis test, there would not be interrogation. The intent of the officer is absolutely the focus of 6th amendment right



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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


to counsel. The intent of the officer must be to deliberately elicit a response. ---Whether or not the ploy used by the officer is likely to elicit a response.

Dissenters agreed that the test used by the majority was proper “reasonably likely . . “ but that by applying this test should have led them to the conclusion that this was an interrogation, and that the remarks should have known that that conversation was likely to produce an incriminating statement form Mr. Innis.

Illinois v. Perkins (1990) (p.395)

F: Perkins was locked in a jail sail, on charges of aggravated battery. He was suspected of murder. He was formally charged with aggravated battery. They sent an informant in, and he implicated himself in the Stephenson murder.

5th Amendment privilege bc interrogated by undercover law enforcement agent while he was in custody, and did not receive the benefit of Miranda warnings prior to interrogation.

Was this a custodial interrogation? No does not apply when the suspect does not think he is talking to a police officer.

But yes, you could argue that he was interrogated.

The inherently police dominated interrogation atmosphere. (that’s missing here) This was not an interrogation atmosphere, or police dominated atmosphere (only one police officer here that he didn’t even know about) the court believed that the rationale for the police warnings did not exist in this situation. A suspect will feel compelled to speak when he is in this police dominated atmosphere.



When an “incarcerated” suspect speaks freely, to one he feels is a fellow inmate (and not a police officer), the “coercive atmosphere” is lacking.

Surreptitious Questioning (it will NEVER be a 5th A Miranda Violation, but might be a 6th)

An undercover agent, or surreptitious counseling can violate right to counsel (Massiah case) but surreptitious questioning even if in custody, NEVER violates, 5th amendment privilege bc that coercive police dominated atmosphere is missing, AND when the suspect speaks freely to someone he believes is a fellow inmate there is NO coercion.

What are they intended to protect against (Miranda) – Coercion

=========================== Right to Remain Silent –Silence vs. Explicit


Invocation; What Constitutes Waiver

What constitutes a WAIVER of the right to remain silent?

Berghuis v. Thompkins (2010) (p.398)

The Miranda warnings MUST be read by the police. Not a valid waiver, until police tell him of his rights

F: Suspect was interrogated and read his Miranda rights. Convicted of intent to commit murder. He never verbally said at any time that he wanted to remain silent, but he did remain silent for 3 hours.

Court said: Is remaining silent to invoke the right to remain silent? The court said NO.


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Criminal Procedure FALL 2012 Class Notes (11/13/12)


Leslie Fischman And must be established by a preponderance

of the evidence.

(1) See and understood
(2) And has not invoked his Miranda rights
(3) Waives the right to remain silent by making

an uncoerced statement to the police.

II. Multiple Interrogations

Where a defendant asserts in first interrogation session that he wants a lawyer, so he has been read his Miranda rights, and invokes right to counsel, the Supreme Court has been extremely reluctant to find that a suspect who invokes right to counsel subsequently waived that right that he invoked.

RULE: (really important, bright line rule) “An accused having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him UNLESS the accused himself initiated further communication, exchanges, or conversations, with police.”

Purpose of this rule (EDWARDS RULE): intended to enforce Miranda, constitutes a second layer of protection, bc what is says is once a suspect invokes his right to counsel under Miranda, the ONLY way that right to counsel can be waived, is by the defendant or suspect himself initiating further conversation, communication, or exchanges with the police.

The only way it can be waived is by suspect initiating conversation himself with police.


H: Mr. Thompkins silence during interrogation did not invoke his right to remain silent, he had been given his Miranda warnings, so he knew of his rights. And he waived that right when he knowingly, intelligently, and voluntarily, made a statement to the police. (p.401)

Silence, knowledge of rights, and conduct that indicates waiver is a WAIVER.

Unambiguous invocation requirement: provides guidance for officers, interrogating suspects.

Had he said he wanted to remain silent, or not talk without an attorney present, then he would have invoked those rights and invoking either one of them would have stopped the questioning.

A waiver of Miranda rights, MUST BE A PRODUCT OF FREE AND DELIBERATE CHOICE, rather than a product of coercion and deception, and a waiver must be made with a full understanding of nature of abandoning right and consequences of abandoning right.

Such A WAIVER MAY BE IMPLIED, through a defendant’s silence, coupled with an understanding of his rights, and a course of conduct indicating waiver = waiver can be implied.

------IMPLIED WAIVER------

*Waiver can be implied: with these three things: (see supra)

*BURDEN (def) = preponderance of evidence



Edwards v. Arizona, 451 US 477 (1981)


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


The significance of this “Edwards” RULE:


Once a suspect invokes the Miranda right to counsel ANY SUBSEQUENT WAIVER of that right, isn’t measured by “voluntarily, intelligently, and knowingly –totality of circumstances test” --the ONLY way a suspect may waive previously asserted right to counsel is by initiating conversation with police himself.

(NOTE SEQUENCE OF EVENTS –RE: WAIVERS –-WHICH TEST APPLIES)

Once he invokes = the Edwards rule applies. (E.g. “I don’t want to speak until I have an attorney present” that would be an unambiguous indication of desire to have counsel present.)

The police can never question him again, prior to supplying him with counsel.

Any waiver after that –Edwards rule applies, NOT the knowingly, intelligent, voluntarily, under the totality of circumstances test.

Minnick v. Mississippi, 498 US 146

Once a suspect in custody invokes his right to counsel, they may not reinitiate questioning unless counsel is present.

The police may not question unless he has had an opportunity to consult with counsel.

Oregon v. Bradshaw



Plurailty held: communications, exchanges, and conversations, are initiated for purpose of Edwards rule, by any comment or inquiry by the suspect that can be fairly said to represent a desire, on the part of the suspect to open up a generalized discussion relating directly or indirectly to the investigation.

Statement intended to ask, where police were going to take hi, ct argued, statement related enough to invoke Edwards Rule. Ct said Police did not act improperly by re-mirandizing him, and questioning him. They got a knowing and intelligent waiver, and continued the interrogation.

Reinitiation of Interrogation After Invocation of Right


to Counsel and Break in Miranda Custody Edwards Rule Example

Maryland v. Shatzer, 130 S. Ct. 1213 (2010)

F: Suspect invokes right to counsel, and he was released into general prison population, and they closed the investigation.

I: Whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona.
Ct said Edwards rule didn’t apply bc, experienced a break in Miranda custody prior to 2006.

H: The Edwards Rule doesn’t apply if there has been a 14-day break in custody. Mr. Shatzer’s return to prison population, constituted a break in custody. UNLESS the suspect himself initiates further communication with police,

Ct adds + OR the suspect has experienced a 14 day break in Miranda custody between the first and second attempts at interrogation.


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Leslie Fischman


MIRANDA “CUSTODY” (definition):

Inherently coercive police dominated atmosphere. – that’s Miranda Custody.

Uninterrupted pre-trial custody, while case being actively investigated, up to including the second interrogation, suspects remained cut off from their normal lives, family, and companions, they remained in custody for Miranda purpose (isolated and unfamiliar police dominated atmosphere, where their captors appeared to have controlled their fate) BUT not the case here.

Protect a suspect against coercion by the police, into confessing.

He has no longer been isolated, and likely to seek advice from attorney, family members, and friends, And he knows all he has to do is demand counsel to STOP interrogation.

What constitutes a “sufficient time” (1 more way that Edwards Rule can be waived)

Court believes that a 14-day break in custody, where suspect no longer in police dominated atmosphere, is sufficient time, to get reacclamated to normal life, and shake off any residual coercion from that first interrogation 3 years ago.

Edwards Rule WAIVER
-(1) 14 day break in custody



-(2) or suspect initiating further communications, conversations with police.

QUESTIONING POST FORMAL CHARGES & ACCEPTANCE OF APPOINTED COUNSEL

Montejo v. Louisiana (2009)

F: Court ordered appointment of counsel. The day of the preliminary hearing, they read Mr. Montejo his Miranda rights, he waived them, and went on a road trip with the police. And during that car ride, he wrote a letter. At trial his letter of apology to victim’s widow, and was sentenced to death. Def argued on appeal, Michigan vs. Jackson.

6th amendment right to counsel should be instead protected by the procedures that the court has established, to secure the 5th amendment right to counsel, that would be Miranda and subsequent cases.



The Court said: the 5th Amendment protection that have been created are sufficient to protect def.


RULE: If a suspect waives his right to counsel under Miranda and his 6th Amendment right to counsel has attached the waiver of the Miranda right to counsel also works to waive the 6th Amendment right to counsel.



Either right can be waived so long as relinquishment of it is knowing, voluntary, and intelligent. The court says that Edwards, Miranda, and Minnick, are sufficient protection for 5th amendment, 6th amendment right to counsel.


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Criminal Procedure FALL 2012 Class Notes (11/13/12) Leslie Fischman


Objective standard. (not subjective standard) Test: whether a reasonable officer in that situation would believe there was an overriding threat to public safety than Miranda warnings need not be given prior to taking a suspect into custody.

Here, reasonable officer, would believe, that suspect removed officer, and hid it somewhere in the store, where someone a customer or employee or accomplice would later come upon it.

Blurred Issuepublic safety issue: New York Sup. Ct. and US Supreme Court, disagreed on whether the public safety was at risk based on the facts of this case.

Public Safety Exception: permits police officers, from making involuntary statement, which is precisely what Miranda rules are intended tot prevent.

Whenever you see custodial interrogation without Miranda warnings (add to checklist –whether there was a public safety exceptions –comes up on occasion on exams –not applying to an interrogation at station but applies if arrest made out on street in grocery store, Quarrels case –applies to a gun)

Does it apply to drugs? (public safety exception)


Criminal Procedure Notes


A waiver under one, waives them both, if the 6th Amendment right has attached.


Concern for Public Safety


New York v. Quarles, 467 US 649 (1984)

F: Def argued that his statement should have been suppressed bc he was interrogated while in custody without Miranda warnings, so the confession should be suppressed, and the gun “fruit of the poisonous tree” tainted by the confession.

RULE: The Supreme Court came up with exception, to rule that Miranda warning be given prior to custodial interrogation. EXCEPTION for situations where there are “overriding considerations of PUBLIC SAFETY” and held that the exception was applicable on these facts.

Court’s Rationale: They are merely protective measures, they are not themselves rights protected by the constitution, but instead are measures to ensure, confessions by compulsory self-incrimination are protected.

Since the Miranda warnings are not required by 5th Amendment, the courts engage in “cost/benefits analysis.” Judge made rule.



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Leslie Fischman


United States v. Patane (2004) –p.429


information believing that he was in possession of a firearm, which is illegal for convicted felons.
-Must the police, im a suspect and in custody, and they are going to interrogate me, and they start to give me Miranda warnings, and I tell them , I know my rights, and say “I know I have right to remain silent . . .etc” is it a violation of 5th amendment privilege and Miranda? Yes it is.

RULE: the police MUST give a suspect the warnings prior to custodial interrogation, even if it is perfectly clear that the suspect knows his rights.
HELD: physical evidence obtained as a result of an illegally obtained confession in violation of Miranda is admissible at trial.

When does the violation occur?
When the prosecution tries to admit the statement, that’s when the violation occurs, its at that point when a defendant is, his privilege against compulsory self- incrimination is violated.

RULE: Exclusion of the statement itself at trial is the remedy for a Miranda violation.
The remedy for a Miranda violation is suppression of the “statement.”

Patane Court said: there is no reason to apply the fruit of the poisonous tree doctrine, to mere failure to warn bc there is nothing to deter

Fruit of poisonous tree: means derivative evid (evid derived from miranda violation) is tainted and should be suppressed.

Given probative value of physical evid. Admitting the physical evid, doesn’t risk admitting the unwarned statement. Admitting his confession (is the violation against his 5th amendment privilege)



Session 11 –10/24/12

Coercive

Overbear her will

She can also, make an argument that the confession wasn’t voluntary, it was coerced in violation of her due process rights (means fruit of poisonous tress doctrine doesn’t apply to Miranda violations) but does apply to 14th amendment due process violations (but NOT 5th amendment, cannot get suppressed under 5th, but CAN under 14th amendment/due process)

Fruit of Poisonous Tree: applies FULLY to 14th amendment/ due process violation

3 options for analysis:

---5th amendment
---6th amendment
---14th amendment/due process

EVIDENCE DERIVED FROM AN ILLEGALLY OBTAINED CONFESSION

-Issue: Whether and to what extent, additional evidence, to which whether that evidence is tainted by the illegally obtained confession.
-If its tainted then its subject to suppression as fruit of the poisonous tree.
-When the evid obtained, or fruit of illegally obtained confession, is tangible evid, rather than another confession or testimonial evid, exclusion of that physical evid is less likely.
-Most state courts have been extremely willing of introduction of physical evidence.

F: Arrested for violating a temporary restraining order. They knew he was a felon and had a glock pistol. Knew he was a convicted felon, and they had


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Leslie Fischman


make sure you know PATANE RULE and remember it.*


1st interrogation, no miranda warnings, def. confessed. 2nd interrogation, completed by complete Miranda warnings, he confessed again
=The first confession given without warnings was suppressed, could not be used by the prosecution at trial. BUT the second confession, receded by proper Miranda warnings was admitted.

Argued, the second confession should have been excluded as tainted fruit of the first Miranda defective confession, BUT the elstad court held that the initial failure of police to administer miranda warnings did not taint a subsequent confession which itself complied with Miranda.

(Elstad) RULE: Where no deliberate or coercive tactics, accompanied the initial Mir V, a subseq administration of the warnings, cured any lingering compulsion from the first interrogation, as long as, no coercive tactics were used.

Must be excluded, even though officers properly gave Miranda warnings.

If the first confesion was obtained. Through coercive tactics and was not voluntary in violaton of mr e’s due process, than 2nd conf would also be excluded bc tainted by coercive tactics.

Situations where second confession, in compliance with Miranda, would be suppressed, if either of the two were involuntary. (but remember to be involuntary there must be coercve tactics on the part of the police)



Dissent: stressed 5th amendment privilege extends to exclusion of ALL evidence, including any derivative evid, and any evid obtained in violation of a miranda violation.

4th amendment, may apply to derivative testimonial evidence, it DOES NOT apply to physical evidence (comes up frequently

in hypotheticals)

*****PATANE RULE*****

RULE: physical evid, obtained as a result, of an illegally obtained confession, in violation of Miranda, is admissible at trial. (PATANE RULE)

Timing of Miranda Warnings

Question that frequently arises: Whether the Miranda warnings were given soon enough?

Elstad (1985)

---He was arrested in his home, no Miranda warnings given prior to questioning.
---Said the officers in good faith failed to give Mr. Elstad the Miranda warnings.

---He was taken to police station, and sometime later, the police officer administered the Miranda warnings, Mr. Elstad “waived them” and signed a “written confession.”


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Elstad –where court admitted the 2nd confession, the ct found mr. e’s 2nd conf was not involuntary obtained, only problem they found was that no mir warnings give, no coercive tactics, found the second conf was voluntary bc among other things, the court found that the officers did not deceive mr. e,

If he was under misimpression (then it was a mistake of def own making) officers did not put that in his mind, and the due process clause, does not privide for exclusion of confessions, when those confesions are not attributable to affirmative police conduct, there MUST be coersion on part of police in order to suppress confesson.

The court said: administration of mir warnings ta police station, served to cure, mr. elstads, inability to exercise the privilege intelligently, and to make the conf an act of free will.
The fact they gave him warnings made second conf, voluntary and act of his free will.

Mirandized the suspect, obtaining second confession.

Under Elstad: knew 1st conf wasn’t admissible but knew the 2nd conf could.
(cops tried to argue) Look at failure to to give mir warnings, as good faith omission, but the case WAS NOT ultimately read that way, bc police intentionally did it.

Missouri v. Siebert (2004) –p.432

Facts: they brought her to police station and intentionally refrained from giving her Miranda warnings, and questioned her about whether she had burnt down her home, knowing that someone was inside. She confessed. They gave her a short break, they administered Miranda warnings on the second one, and got her to repeat her confession.



When she hesitated they proded her with her previous statements.

Obtained a confession without Miranda warnings, mirandized her, obtained confession, believing that first confe would be suppressed, the second conf will be admissible bc complied with Miranda warnings, like it did in elstad.

Found that her second confession, although complied with Miranda warnings was not admissible.
Two separte interrogation sessions (in Elstad) BUT in this case, they did not view the two interrogations as separate. (bc in elstad they took place in two separate locations. (in this case both interrogations taken in police station, with a short break –court considered this ONE continuous session.)

Therefore court held: second conf must be suppressed bc circumstances under which mir warnings given mean thtye couldn’t function effectively, as the mir case requires.

----------------------------------------------

Factors to consider whether, Miranda warnings delivered midstream are effective.

1. Effective enough to complete objection: completeness in first round of questioning, the overlapping content of the two statements.
2. the timing and setting of first and second interrogation sessions.

3. The continuity of police personnel. And
4. The degree to which interrogators questions treated second round of questions as continuous with the first.

------------------------------------------------

Belief second statement would be admissible (elstad) Second confession may be admissible under Estad, or may not be admissible under the facts of Siebert



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(know the two rules, and distinguish facts of th two cases, bc frequently you will see the issue) one w/ Miranda warnings, and second, without Miranda warnings, (wil have to do an Elstad-Siebert Analysis)

Factors: 1. Completeness and details of questions and answers in frist interrogation session. 2, overlapping content of the two statements. 3. The timing and setting of the first interrogation session,a nd second interrogaotion session, -continuity of police personnel. (same police or change in personnel) –and degree to which interrogators qieuestions, treated, as continuous with the first (if officer treated second session as continuation of first, then siebert controls) (when you see two confessions obtained – raised ***Elstad Siebert discussion***)

Assuming M Warn given in a timely manner (question) whether warning sbecome stale after passage of time.

RULE: its generally accepted that fresh warnings are NOT required, after the passage of just a few hours.

Ex) mirandize suspect, interrogate suspect, take a 2-3 hr break, resume interrogation, new warnings ARE NOT REQUIRED.

RULE: (supra rule is also true) true after the passage of several DAYS, where custody of the suspect has been continuous.

But Clearly the passage of weeks or months is “too long.”



Even where passage of time has been fairly brief, you want to take into consideration, changes in the “circumstances” that occurred, in the interim between the two sessions.

RULE: new warnings, NOT required just bc of a change of “local” of the the interrogation, new warnings aren’t required, just bc there has been a change of the officer’s doing the questioning. –new warnings are not required just bc there has been a change in the subject matter of the questioning. –even a combination of these changes in circumstance are not deemed to call for new warnings. BUT in any event, ALWAYS REMEMBER this: the court believes that, just the interrogation atmosphere by itself is coercive, whether mir warnings are given or not, it’s a “coercive situation.”

RULE: new warnings not required for changed circumstances –to undue any effects of any possible coercive conduct, following initial warnings.

So even if there have been changes in circumstances, courts generally agree that new warnings are not required. However repetition of Miranda warnings are necessary. To undue the effects of ANY possible coercive conduct, following the initial warnings.

If there is ANY perception of coercive conduct by the police, may not rising to due process violation, but to undo any perceived coercion, then they need to administer Miranda warnings again before they continue in a new session.



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Suspect waived rights, before statement in custodial interrogation
But not defined what they meant by waiving the rights They did define

Definition of critical elements of knowing, intelligent, and voluntary waiver.


WAIVER

Waiver ~(Burbine)

1. Product of free and deliberate choice, rather than the product of intimidation, coercion, or deception on the part of the police
2. the waiver must have been made will a full awraenes, both of the nature of the right being abandoned, and the consequences of the decision to abandon that right.

Court said (burbine): No waiver can be considered knowing an intelligent in the absence of Miranda warnings.

If Miranda warnings are NOT given then any subsequent waiver, is NOT knowing and intelligent.

Waiver (rulings) established the Miranda warnings as the definitive solution for the problem of “inherent coercion” and “lack of information” during custodial interrogation. (court says)

Police do not have to provide additional information to suspect to hep suspect decide whether or not toe xercivse priv or to waive it , mir warnings are enogh, they don’t have to give any other info to suspect, in order for supect to make deciions to stand on or abandon rights. –they don’t have to tell suepct that any prior admission. –neither do they have to tell supect that an attorney desire to consult with him. –


they don’t have to give suspect any other infor, other than providing mir warnings, prior to interrogation.

Moran v. Burbine (p.438
H: Events that occur outside mr. burbine presence, and entirely unknown to hime, can have no bearing on his capacity to comprehend and knowingly relinquish a constitutional rights.
C: found police followed proper Miranda procedure, and upheld validity of waiver. Proper waiver of right to counsel. Ct found that record supported state court finding, that waiver of right to counsel, was voluntary, knowing and intelligent.
See notes on brief (You participated)

Escobedo: lied to Escobedo, lied to suspect. Conclusion: the undisclosed information. Didn’t deprive mr. burbine of knowledge essential to understand nature of his rights and consequences of abandoning his rights, once proesecutor shows, suspect was fully informed or mirnda rights, and not coersed into waiving those rights, the analysis si complete and valid as a matter of law.

The fact that counsel wishes to see him, whether he knew or not doesn’t matter, bc he waived. Information held by police, would have been useful to mr. burbine and may have affected his decision to confess. --Don’t have to give him

WAIVER TEST
= “totality of the circumstances”

Test: totality of the circumstances test (waiver)
1. ____ (check old notes for first prong) --first give him the warnings, that’s what makes waiver



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knowing and intelligent in that he is given the warnings and understands them.
2. Full awareness of nature of right to abandon, and consequences of decision to abandon it

3. Only if the totality of circumstances, the interrogation, involves uncoerced choice, and requisite level of comprehension, may a court properly conclude that Miranda rights have been waived.

Characteristics. Don’t mater UNTIL /BUT IF Coercive tactics were used, NOW the characteristics of suspect play a role, factor, in whether the confession was voluntary, but until suspect is able to prove police coercion, age-mental capacity totally not relevant.

Custody and interrogation no, they only matter for waiver. (argue that even though Miranda warnings given, the waiver wasn’t effective bc it wasn’t an intelligent waiver –characteristics then matter).

WAIVER must be 1. Knowing, 2. Intelligent, and 3. Voluntary. (elements of a waiver that must be proved in order to have a waiver.)

[BREAK]

Miranda (majority) said that they did not want their holding to be a constitutional straight jacket, and therefore, the court said that the listed Miranda warnings that we announced told, MUST be given, UNLESS other fully effetive means are derived to __, and opportunity to exercise

Implied that congress and state legislatures were free to enact other procedural safeguards, to replace


Miranda warnings, as long as equally effective as Miranda warnings.
Congress took up Miranda, and tried to repeal, strict rules of Miranda for federal prosecutions, according to title II, confession was admissible into evid in federal prosecutions, if the confession is “voluntarily given” even where Miranda warnings aren’t given, a federal judge required to admit confession, if found voluntarily given.

Title II, purported to overrule Miranda, there were doubts whether title II was constitutional, and federal prosecutors almost never relied on it, but for over 30 yrs, it was enacted in 1968, the US Supreme Court was never called upon to decide whether title II was constitutional or not.

Dickerson v. United States (2000) -.p447

F: Circuit court implied title II, saying Miranda warnings weren’t required.
For congress to challenge, must find, derived from a constitutional rule (a constitutional rule cannot be overturned by congress.
Congress cannot supersede it, bc the court determine the scope of constitutional guarantees, not congress. Conceded that, Miranda court, had noted that the constitution would not preclude legislative solutions that differed from prescribed Miranda warnings, but equally effective in ___ of their rights.
Totality of Circumstances test is equally as effective as Miranda, to exercise right of silence and Dickerson majority disagreed. And that congress’s decision was not as equally as effective as miranda.

Chavez v. Martinez (2003) -.p455

Civil action for deprivation of rights
Was he mirandized prior to giving the confession? No



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He was interrogated under circumstances that would have made his resulting confession, inadmissible, under miranda, in a criminal case.
5th amendment: no to be compelled to testifying against himself (only applies to criminal prosecutions) __ amendment: free from coercive questioning.

Civil action for damages: upheld by district ct and court of appeals.
C: Martinez was never made to be a witness against himself, in viol of 5th am, self incrim, bc statements wer never admitted as testimony against him in a criminal case, and neither did the ct believe his due process rights were violated, 14th am , due process, the quesitonning was neither egregious, nor did it shock the conscious. The ct said that officer chavez questioning did not interfere with med treatment, or exacerbate his injuries, did not prolong stay in the hospital –no due process viola

RULE: the 5th amendment, and other criminal procedure rules, from bill of rights, apply to criminal prosecutions ONLY, they don’t apply in civil cases.

Brewer v. Williams (1977) --.p.463

Ct relied on the Massiah Doctrine to resolve the issues in this case. (see also: Nix v. Williams)
Def was arraigned in Davenport: on arraignment -6th a right to counsel

Des Moines police, went to Davenport to take him back to Des Moine
And police promised his counsel that the officers who were sent from DM to DV, would not question him on drive back to DM

The atty in davenport told mr. Williams, that police “promised” not interrogate him.
Given Miranda warnings at arrest, at arraignment, and before they started trip back to Des Moine

During the ride, he told police, repeatedly that he would talk to them, but not until he spoke to lawyer in des moines.



On federal habeau corpus: foun def had not waived and ruled for mr. Williams, on 3 independent ground. 1. Denied constiu right to assistance of counsel (6th a) 2. Denied rights under Escobedo and Miranda
3. In any event he made the statement involuntarily. No need to determine 4th am due process fo Miranda issues, bc the court believed that “it is clear that the judgment before us” must be affirmed, that williams was deprived of a different constitutional right –right to assistance of counsel –so court resurrected the massiah doctrine.
Was not intentionally waived by mr Williams before the police “deliberately elicited” statements from him, in violation of massiah.
Majority: rejected state courts conclusion, that waiver had occurred bc mr. Williams, never asserted the right or a desire not to talk in the absence of counsel. –the mere fact that he confessed, was not enough to prove that he intentionally waived that right
Mr. Williams: consulted with attys multiple times, assured by them police would not question him, and noted that mr. Williams expressly desired the presence of counsel before interrogation, where he told police in car he would talk to them after consulting atty in des moines.
Ct Found both “expressly” and “impliedly” right to counsel –throughout encounter with police.
Ct found: massiah case, once proceedings commence he was right to legal representation when govt interrogates him.

Massiah case: important in analysis of confessions and interrogations (use 6th am language)
Vs. in 5th amendment (express questioning or functional equivalednt, any conduct by police know or should know will reasonably produce an incriminating statement from the suspect)


Kuhlmann v. Wilson (1986) –p,472


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They argued Massiah, right not violated bc he was not questioned and he was in custody
Ct would not consider this questioning, and even if it was questioning, the objectives of Miranda don’t apply here, bc no police dominated coercive atmosphere. Talking in a jail cell to who he believed was a co-criminal.

Massiah line of decisions only applies, to secrete line of questioning, direct equivalent to police interrogation
Def must show police and informant took some action beyond merely listening, designed deliberately to elicit incriminating remarks.

6tha , right to counsel, police techniques, MUST be intended to deliberately elicit incriminating statement, for 6th a right to counsel to be violated.

Surreptitious Questionning

By undercover agent or snitch, can violate a formally charged suspects right to counsel but surreptitious questioning by someone suspect does not know, NEVER violated 5th amendment privilege under Miranda.

ALWAYS going to be a 6th amendment issue, it will NEVER be a 5th amendment issue (be careful on multiple choice question, don’t ever pick “violation of 5th amendment priv, always wrong when you have a an undercover agent –answer: 6th amend privilege, made a first appearance, or formally charged

3 Identification Procedures: line ups, show ups, and photographic identifications (aka six packs)

check twwn, things have been posted.



After Class Discussion: (Session 11 - 10/24/2012)

(make both arguments –and don’t miss the little issues)

Every issue and sub-issue, is alottled points, left in point allocations, so you can see how many points are allotted for each issue.

If facts raise a defense argument you have to make it.

Get all 20 pts for good analysis.

There will be bonus points, for something you talk about that not every student will get

Don’t write yourself out of the essay, move on –don’t cut yourself out. If facts raise issues, discuss all the issues.

Take rule and USE with the facts in your analysis, why applies to these facts, and why the rule doesn’t apply to these facts.

Edwards: [RULE] only way a suspect can waive his previously invoked Miranda right to counsel, by himself initiating further communication with the police.



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Criminal Procedure

Session 12 Notes

10/31/12

Missed first two cases from class
United States vs. Wade and Kirby vs. Illinois 45 minuets late.

I. Six Packs

Violating his rights against confrontation

United States vs. Ash –excluded Gilbert Exclusionary rule –H: def has no right to counsel at photographic identification –either pre or post formal charge

Distinguished wade: photographic displays don’t require presence of def, presence of counsel not necessay to protect def from adversarial confrontation.

Ct seized a photographic display as a mere preparatory step in gathering evidence.
Ct said defense counsel has an equal opportunity to see and interview witnesses as well.
Photographic displays DON’T violate 6th Amendment Right to Counsel

Kirby v. Illinois
Ct noted that the right to counsel is not applicable, to pre-charge identification procedures.
Violated 4th amendment due process



Ct says where 6th amendment right to counsel doesn’t apply, an identification procedure MUST still satisfy the requirements of due process.*
Burden satisfied only if def can prove two independent factors:

the procedure was impermissibly suggestive or sometimes the language used is “unnecessarily suggestive” & if he can show that, then the def must show that the identification was unreliable under the “totality of circumstances”

(hard burden for defendant to prove)

Imprompto ID Procedures held immediately after a crime –(aka. Street Identifications)



• •

•

•


Often called “street identifications”

These are obviously suggestive, bc one on one show up, at the scene of the crime, but the court believes these are necessary even though they are inherently suggestive, they do NOT violate due process (street identifications)

Ct says a prompt showing of a detained suspect at scene of crime, has a very valid function, to prevent the mistaken identity of someone else later.

Even though police employ unnecessarily suggestive procedures, it does not necessarily follow that the ID is unreliable.


Manson v. Brathwaite (p.488)

• F: an undercover narcotics agent had a tip, from an informant, that drugs were being sold out of a particular apartment in a building. So undercover agent, accompanied by informant, went to the apt


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building. Turned out to be a different apartment, where he made a purchase of drugs.

• Gave a general description: “colored man,
5’11” tall, black hair, had high cheek
bones, and was of a heavy built” –gave a
description of the person when he went not) back to the station, and one of the officers,


to whom he was describing the man, said

“I think I know who you are talking about” • was it a six pack? It was one photograph.

And what did the officer say when he saw the photograph, “yup that’s him”


• Manson, gave an off-quoted statement. Manson court


• Unecessarily suggestive procedure, but the reliability of the ID, the ct believed this was a reliable Id.


• This is an identification procedure that was argued violated due process (ct found it did


The criteria the Manson court referenced, comes from the case, Neil vs. Biggers (ct says Biggers is the proper ID for proving reliable: (see page 49) --


permitted then to make an in court identification and was allowed to testify that he had identified a photograph as being the defendant.
- it was argued that both the in court ID and out, were improper and should have been suppressed. Did US Sup CT agree that it was suggestive procedure. Yes. Did ct agree that it was “unnecessarily suggestive?” Yes. They agreed. Said no reason to show the one photograph, it would have been put in a six pack.

Did the ct believe that this ID procedure, violated the def, due process rights?

• For a showing of due process violation: 1. That the procedure was unnecessarily suggestive, and 2. Def has to first show procedure was unnecessarily or impermissibly suggestive THEN show that the resulting ID was unreliable. (was this unreliable under the “totality of circumstances?”
  
  
• The ID was reliable, even though the procedure was unnecessarily suggestive = no due process violation (it has to be BOTH).
  
  

• (1) opportunity for witness to view the criminal at the “time of the crime” (yes it was afce to face drug by)

• -(2) The witnesses degree of attention (did undercover agent give close attention to person from whom he was buying the drugs –evid by ability to give accurate description)

• -(3) Accuracy of prior description of criminal (gave one before looking at the photograph, accurate yes)

• -(4) Level of certainty identified by witness at the confrontation.

• -- (5) Length of time between the crime and the identification procedure (he went right back, a matter of couple of days or several hours –not months, and the length of time btw the crime and confrontation –


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the confrontation here being the photograph)

• (Is there an issue where there is a substantial likelihood of irreparable miss- identification? No.)

Due process argument depends on:

• Whether unnecessary police suggestiveness has created a substantial risk of mis-identification. Ct said “reliability is the linchpin in determining the admissibility of identification testimony)

Perry vs. New Hampshire (2012) –not in case book

• F: Mr. Perry relies on statement made by
  
  court in Manson. Involves alleged car break in, early 3am, in apt house parking lot.
  
  
• -case does not give identification by the eye witness.
  
  
• -Eye witness offered the police, a not very good identification of the suspect. She said he is a “tall black man” -she looked out of kitchen window and said yes that is him.
  
  
• -a month later, she was shown a six-pack, a photographic array. Was she able to pick out the suspect from six photographs? No she was not able to.
  
  
• -Mr. Perry relied on statement in Manson, that: “reliability is the linchpin . . (see supra)
  
  
• -but the Court said that, Mr. Perry’s reliance on that statement from Manson, is misplaced. The ---Perry ct said that the Braithway (Manson) court re: reliability, was about the remedy to misidentification
  
  

procedure, and made clear that the test for reliability only comes into play, after the def is able to estb “impermissible police conduct.”

• Was there an impermissible police conduct here? Ct said there was no improper police procedure here, and reliability ONLY becomes an issue AFTER proving : improper or unnecessarily suggestive identification procedures.

• -this case simply restates the Manson Court.

• -the fact that reliability is not even a consideration until the def, first proves that the identification procedure was impermissibly or unnecessarily suggestive. (not an issue until def proves the first requirement*).

• right to a speedy trail
• In any jxd 3 sources of speedy trial rights: • ct rules for docket control
• 2.statutes that (
• federal and constitutional gurantees

• 6tha declares in relevant part –the accused shall enjoy the right to a speedy trial

• 6th a right to speedy trial –applies directly to federal prosecution, and selesctively incorporated to apply to state prosecutions

• includes right to speedy sentencing and speedy appeal (speedy trial rights include)


Pre-trial identification procedure (fair game on exam) 6th, 5th am rights –come up on bar exam (next discussion)

II. TRIAL RIGHTS


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• when does right to speedy trial attach: at formal charge and at arrest
  
  
• 6th amendment right –right to speedy trial – attaches from the earlier, date of indictment (formal charge) or date of the arrest.
  
  
• This is one that attaches at arrest –right to speedy trial
  
  
• Once it attaches, it stays attached until the ultimate remedy
  
  
• What is the only remedy for right to a speedy trial –dismissal (is the remedy)
  
  
• No bright line rule, governing how speedy a trial has to be, instead court has adopted a “balancing test” in which both prosecutions and defendant’s conduct is weighed. To determine whether there has been a violation of right to a speedy trial.
  
  
• F: Mr. B was indicted in 1958 and tried in 1963. Why so long? The prosecution moved for continuances, 15 times. Did he object to the first 10. No Mr. B did not object to the first 10.
  
  
• -he started objecting at the 15th and subsequent motions to continue
  
  
• -he moved to dismiss the indictment
  
  
• -Did the US supreme ct believe that his
  
  right has been violated? No they did not, bc they believed his objections, he didn’t show that he wanted a speedy trial. The us supreme ct said he was not denied a speedy trial, bc facts indicated that he did not want one.
  
  

• -right to speedy trial for all accused, that exist separate and apart from all accused.

• -interest: if trial isn’t speedy it contributes to back-log, and enables them to manipulate criminal justice system, other societal interests –def confide in the deplorable conditions of some local jails bc they cant obtain pre-trial release, ct believes would have a detrimental effect on rehabilitation., applies not only to federal trials but also to state trials.

• -delay is a common defense tactic, the defense likes to delay, but there is concern that as the delay lengthens that witnesses may become unavailable, and that witnesses memories might fade, and of course the possibility that the prosecution will not drop the charges. And the delay leaves the defendant in jail and that poses a problem bc then def doesn have ability to provide for family or assist with defense in his case.

• -however, unlike the 6th amendment, right to counsel, or 5th amendment right against compulsory incrimination, does not prejudice def ability to defend himself (vilation of right to counsel or 5th amendment privilge –prejudices but speedy trial right does not)

***the length of the delay (length dictated in part by the nature of the charges)

Barker court held: that length of delay is threshold requirement for triggering violation of the right, although alone does not estb the constiutional violation but it is really the starting


Barker v. Wingo (1972) –p.588


Barker court (4 factors to determine whether trial has been “unreasonably delayed”):


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country, and returned to the us –right to speedy trial attached at his arrest. Her was a law-abiding citizen, and 8 1/2 years later, govt discovered his location during a routine computer check.

---P: They moved to dismiss, and ct denied his motion to dismiss, the us ct of appeal affirmed. US supreme ct reversed, held that the speedy trial right is triggered even if the def doesn’t know about it, and even if the def isn’t in any way restrained. (he hadnt been arrested, not in trial) the right to speedy trial attached several years ago when he was indicted.

---C/H: found that obviously the defense would be prejudiced after 8 years, and that the entire period has to be considered. So the court reversed and said that the indictment should be reversed.

Right to speedy trial –attaches at indictment or arrest.
---When delay caused by reasonable diligence, the defendant has to show prejudice

---But when intentional conduct on part of prosecution, there is a presumption of prejudice, and burden on prosecution to rebut the preseumption. ---Rebuttable presumption of prejudice ---Reasonable diligence: burden on defendant.

United States v. Lovasco (1977) –p.600
Issue: Pre-accusation delay.
F: the govt has sufficient evidence to obtain an indictment. But they delayed. Theyd elayed for 18 months from time they had sufficient evid to indict the defendant, during this 18 month period, 2 material witnessed died. The apparent reason for the delay in filing formal charges, was that they were trying to obtain more evid. Little if any new evid was found during delay to formal charges. Def tried to invoke 5th a due process when indictment was filed almost 17 months after.



point for the analysis of whether the speedy trial right was violated

• the more culpable the govt conduct re: the delay the better chances the def has, to show that his 6th am , speedy trail right was violated.
  
  
• –if def can show govt “deliberately delayed trial in order to hamper the defense” –then probably even a short delay would be found prejudicial.
  
  

What’s Excusable?

----1. Excusable delay --Delay trying to find missing witnesses, is excusable,
----2. delays bc of court conjestion somewhat excusable, whether and how the def asserted the speedy trial right, if he did not assert he was ready for trial and wanted to start immediately, than his later claim that proceeding started too late, will not be given s much weight than if he did from the outset. –if def says ready for trial –then defense has asserted he/she wants a speedy trial

****(most important factor) is the amount of prejudice the defendant has suffered as a result of the delay**** (one is serious 1. Oppressive pre-trial incarceration (a type of prejudice not very serious) 2. Anxiety and concern of def awaiting trial (not very serious) 3. Impairment of defense (that is serious, if def can show that witnesses favorable to him have dies or moved aaway and cannot be reasonably found, or that witnesses has suffered impaired memories as a result of delay, than ct will likely find delay prejudice)

Doggett v. United States (1992) –p.594
---F: left country prior to govt attempts to arrest him. He was indicted an govt was getting ready to arrest him, arrest and indictment for drug dealing, he left



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-(side-note: check, 5th amendment has a due process clause) ---ct said there needs to be a “balancing test” -the united states district court: they dismissed the indictment, saying that the pre-charge delay was too long, and united states court of appeal affirmed.

-sup ct: reversed, bc thorough investigation can assure against unnecessary prosecutions, and relieves the court from trying insubstantial cases.

-It’s a constitutional violation of due process –if the delay is intended to gain a tactical advantage over the accused or is intended to harass the accused, or is carried out in reckless disregard of the circumstances, suggesting that there is a risk that the delay would impair the ability to mount an effective defense (in other words, impair ability of defense to put on their case)

Ex) The star defense witness, is terminally ill, and the prosecution knows that, and the prosecution delays getting an indictment, or delays filing formal charges hoping that the defense star witness will die, violation of due process rights, prejudicial to defense, done intentionally, yes.

No due process viol, even if def somewhat prejudiced. Delay for ensure correct charges are brought, or if delay in order to gather more evidence, the ONLY time that it is a due process violation, is when it is done “intentionally to gain a tactical advantage over the defense”

A due process violation always requires defense to prove two things (in order to prove his due process rights were violated bc of the delay in bringing formal charges):



1. (MUST SHOW FIRST) The delay resulted in actual prejudice, in ability of defense to bring its case. First prove, show actual prejudice to defense, and

2. (SECOND) The prosecutions conduct was intentional and motivated by intent to harass defendant or gain a tactical advantage over the defendant (difficult to prove bc the prosecution will always have reason for delay in filing charges for a year*)

Not only may there be a 6th amendment –speedy trial violation (only applies if def has been arrested or formally charged). [Note: Look to see if the delay was in “filing formal charges.” Bc if delay is by the prosecution there is no 6th amendment speedy trial right bc there is no indictment and no arrest.]

Check: was there prejudice to the defense and more importantly if the conduct by prosecution was intentional and motivated to gain tactical advantage, or harass –then due process. (if there is, then no indictment, bc fundamentally unfair)

{RULE} Memory deterioration, witness

refusal to testify, and mere passage of time

= NOT sufficient to establish prejudice,

alone. ------------------------------------

---Prejudice CANNOT be established, by simply a claim that the star witnesses memory has been deteriorated. And not by showing inability to locate witness.



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---Prejudice also cannot be estb by a defense

witness’s refusal to testify.
---Mere passage of time is not sufficient to estb

prejudice.

Defendant’s Burden to show 14th A Violation:

But for a 14TH AMENDMENT VIOLATION, even if defense is able to show actual prejudice, there is no 14th amendment violation, UNLESS def can show the delay was:

1. INTENTIONAL,

2. TO GAIN A TACTICAL ADVANTAGE, -OR- 3. HARASS.

Must show ACTUAL PREJUDICE + (1,2,or3) = to get a 4th amendment violation.

-----RULE (14th A Due Process, Speedy Trial)----- PREJUDICE ALONE is NOT sufficient to prove 14th amendment violation must have:
ACTUAL PREJUDICE + (1, 2, or 3 below)

Sole remedy for violation of right to speedy trial is = dismissal (that’s the only remedy)
[because, can’t be cured by granting him a new trial]

pre-trial delay:

then 14th amendment. (if can show intentional conduct on part of prosecution, the indictment will be dismissed)



Sixth Amendment trial by jury


CRIMINAL PROCEDURE SESSION 13 REVIEW (from TWEN)


The Sixth Amendment entitles a defendant to trial by jury in the prosecution of any serious, i.e., non-petty, offense.

The dividing line between a “serious” crime and a “petty” one is a potential sentence of greater than six months

A jury trial is constitutionally mandated for any offense that carries an authorized sentence of more than six months, regardless of whether the actual sentence imposed in the case is six months or less. Duncan v. Louisiana, 391 U.S. 145 (1968).

If the maximum sentence allowable for the crime is six months or less, there is a strong presumption that the crime is not a serious one for which there is a Sixth Amendment right to a jury trial. However, this presumption can be overcome if D shows that there are additional statutory penalties which when taken together with the maximum authorized prison sentence “are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.” Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

Only the legislatively imposed penalty is to be considered in determining whether a crime is serious or petty.

The federal rules state that a federal jury should consist of 12 jurors, the Supreme Court has upheld state rules requiring fewer than 12 jurors.


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The Court has held that a jury consisting of 6 jurors is constitutionally permissible.

Williams v. Florida, 399 U.S. 78 (1970). Later the Court established a constitutional minimum of 6-person juries and rejected a jury of only 5 persons as a violation of the 6th and 14th Amendments.

Ballew v. Georgia, 435 U.S. 223 (1978). While federal courts and most state courts require a 12-person jury verdict to be unanimous, there is no constitutional requirement of unanimity. Apodaca v. Oregon, 406 U.S. 404 (1972).

A unanimous verdict is required of a jury consisting of six members. Burch v. Louisiana, 441 U.S. 130 (1979).

Waiver

The constitutional right to a jury trial may be waived by the defendant in favor of a bench trial, but a defendant does not have a right to a bench trial.
The defendant may waive the right to jury trial, provided that the waiver is voluntary, knowing and intelligent. However, most states, and the federal system, allow the judge or the prosecutor to veto the defendant’s waiver of a jury.
Sixth Amendment Confrontation Clause
A defendant has a constitutional right to be present at his trial, derived from the Sixth Amendment Confrontation Clause (the right of the accused “to be confronted with the witnesses against him”).

This right may be lost by a defendant’s

disruptive behavior.
The Confrontation Clause has two main components:


(1) the right to compulsory process; and
A defendant has the right to have the court issue a subpoena to compel the

testimony of any witness who may have information that would be useful to the defense.

(2) the right to cross-examine hostile witnesses.

The Confrontation Clause also places limits on a state’s ability to restrict a defendant’s right of cross-examination.

Statements made to the police to meet an “ongoing emergency” are “nontestimonial” and therefore can be presented at trial even if the defense cannot cross-examine the declarant, as guaranteed by the Confrontation Clause. Michigan v. Bryant, 131 S. Ct. 1143 (2011).

The Confrontation Clause also prevents, in some circumstances, the use of one defendant’s out-of-court confession against another defendant.

The Supreme Court has held that D2’s Confrontation Clause rights are violated if the confession of D1, his non-testifying co- defendant, naming D2 as a co-participant in the crime, is introduced at their joint trial. This is true even if the jury is instructed to consider the confession only against D1, not D2. Bruton v. United States, 391 U.S. 123 (1968).

The Bruton rule doesn’t apply when the prosecution redacts (edits) D1’s confession so that D2 is not mentioned or even alluded to. Richardson v. Marsh, 481 U.S. 200 (1987).


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