Criminal Procedure s1

Criminal Procedure Nowlin Fall 2004I) INTRODUCTION (POLICY)A) Dershowitz handout: 13 rules (basically: everybody lies, everyone knows and doesn't care, no one cares about justice, anyone will say or do anything to win...just use the word "Dershowitz" on the exam in a cynical manner and you'll get a gold star)B) Herbert Packer's models of the criminal process 1) Crime Control a) central value to be served by criminal process: the efficient, expeditious and reliable screening and disposition of persons suspected of crime b) administrative and managerial c) analogous to an assembly line d) gov’t is instituted to protect natural/human rights from private violence. 2) Due Process a) central value to be served by criminal process: the maintenance of the dignity and autonomy of the individual suspected of crime b) focus on protecting D’s rights against the gov’t – if the gov’t violates these rights, it loses its rights and may result in its absolution c) adversarial and judicial d) analogous to an obstacle course 3) Real-world criminal process a) tends to follow the C/C model more than the D/P model b) the officially prescribed norms for the criminal process, as laid down by the S. Ct., are rapidly providing a view that looks more and more like D/P (a) "judicializing" each stage of the criminal process (b) enhancing the capacity of the accused to challenge the operation of the process (c) equalizing the capacity of all persons to avail themselves of the opportunity for challenge so createdC) The Constitution & The Declaration of Independence 1) Lincoln (and Nowlin) believe(d) that the purpose of the Constitution was to enshrine and preserve the political principles articulated in the Declaration 2) Nowlin says the government both protects and potentially violates the rights of citizens a) the C/C model tends to view the government as protecting rights b) the D/P model tends to view the gov't as potentially violating rightsD) Judicial Restraint v. Judicial Activism 1) Judicial activists – courts should be active in protection of individual rights against gov’t a) non-deferential to democratic decision makers b) not required to ground their decisions firmly in traditional legal materials c) exercise a substantial amt of political discretion in determining the meaning of constitutional decisions d) accept, and even celebrate, judicial policy-making in areas of political importance and controversy 2) Judicial Restraint – uphold unless clearly unconstitutional1 a) court should be careful when it acts b/c they cannot be held accountable; procedural protections should be in place through democratic process b) are deferential to democratic decision makers c) are required to ground their decisions firmly in traditional legal materials d) strive to minimize their political discretion e) reject expansive judicial policy-making in areas of political importance and controversyE) Courts create the code of criminal procedure. Problems: 1) federalism issues (of concern to passivists) 2) separation of powers: Court's job is to interpret Constitution, not making statutory law 3) Court passive; must wait for cases to be presented 4) Court has packed docket 5) Court's fact-finding powers are limited 6) Code needs to be coherent, comprehensive and consistent. Problems: a) changing personnel – passive institution b) stare decisis 7) Courts need to deal with implementation of codes. Problems: a) reality: state courts following crime control model conflict w/ S. Ct.'s decisions in many cases, but not much S. Ct can do about itF) Incorporation 1) Duncan v. Louisiana (1968) a) Duncan convicted of simple battery (up to 2 yrs and $300) b) Does fed'l (6th Amd't) right to trial by jury incorporate with the DPC to entitle D to jury trial? c) Duncan says yes b/c 14th Amd't DPC begins "No state...", and the B of R applies to states thru 14th Amd't d) Majority agrees with incorporation arg't; holds right to trial by jury for serious criminal offenses applies to states e) Harlan's dissent: Harlan fears that if the same tough rules that restrict the feds were applied to states, it would slow down the state system of justice and crime- fighting and the S. Ct would end up watering the rules down to expedite the state criminal systems (in fact, this was what ended up happening in many cases) f) Kinds of incorporation (a) Majority uses "selective incorporation"  some provisions incorporated (i) test is fund'l fairness (ii) those that are incorporated are those essential to achieving fundamental fairness (iii) this is a compromise btwn total and pseudo incorporation (b) Black (in concurrence) argues for total incorp'n: full B of R incorp'd (c) Harlan (in dissent) argues for psuedo-incorporation (AKA Fund'l Fairness): if something is essential to our ordered concept of liberty then, it will be mimicked in the state constitution; no actual incorporation. 2) All provisions we will study have been incorporated 3) States have primary responsibility for crime fighting, so it is safer to put major restrictions on fed'l gov't than on states 4) Incorporation moves more of those major restrictions to the states 5) S. Ct has discretion over the nature of those restrictions2 G) Major Constitutional provisions for this course 1) 4th Amd't: a) The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and b) no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 2) 5th Amd't: a) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; b) nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; c) nor shall be compelled in any criminal case to be a witness against himself, d) nor be deprived of life, liberty or property w/o due process of law; e) nor shall private property be taken for public use, w/o just compensation. 3) 6th Amd't a) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, b) and to be informed of the nature and cause of the accusation; c) to be confronted with the witnesses against him; d) to have compulsory process for obtaining witnesses in his favor, e) and to have the assistance of counsel for his defense. 4) 14th Amd't (DPC) a) § 1: All persons born or naturalized in the U.S. and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S; nor shall any state deprive any person of life, liberty or property, w/o due process of law; nor deny to any person w/in its jurisdiction the equal protection of the laws. b) § 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.II) 4 TH AMD'T THRESHOLD: HAS THERE BEEN A 4 TH AMD'T SEARCH?A) The Rise and Fall of Boyd: What Constitutes a 4th Amd't Search? 1) Boyd v. U.S. (1886) a) Act of 1874: fed'l prosecutors can issue notice to compel Δ to produce evidence to be used against him/her b) Boyd says his compulsion to produce an invoice was unreasonable under 4th Amd't c) Holding: (a) Compulsory production/seizure is equivalent to the 4th Amd't search b/c the gov't would search for the documents if they were not timely produced. (b) The search in this case was unr'ble. Reasoning: (i) self-incrimination3  intimate relationship between 4th and 5th Amd'ts (functional equivalent)  almost every case that violates the 4th violates the 5th (ii) SDP  Ct says the 4th & 5th deal w/ property rights; therefore a search is unreasonable if constitutes trespass on Δ's property rights  the gov't can only search stuff you don't have property rights in a. at the time of Boyd, the categories of stuff you could search were: fruits of crime, instrumentalities of crime, or contraband b. gov't not allowed to search for "mere evidence of crime" d) Boyd analysis (for policy question purposes): (a) Does the  have a property right in the searched area or searched-for object? (b) If yes, did the police trespass on these rights? (e.g. physical invasion) (i) If yes, 4th Amd't violated (ii) If no, is it mere evidence?  If yes, then violation of 5th Amd 2) Schmerber v. California (1966; Brennan) a) Schmerber has a wreck, looks intoxicated to the officer. At the hospital, the cop has the nurse take a blood sample over Schmerber's objection, cop arrests for DUI and blood is used as evidence for conviction b) New 4th Amd't analysis – Is search reasonable? (a) Reasonableness in Clause 1 of 4th Amd't is not about property rights; it refers to Clause 2 (b) Clause 2 requires search warrant and probable cause or probable cause and warrant exception (c) To satisfy reasonableness requirement of 4th Amd't, then: (i) the search must be conducted in a "reasonable fashion under the circumstances" (ii) there must be cause to suspect probable criminal wrongdoing c) New 5th Amd't rule: 5th Amd't only protects testimonial communications, not physical evidence (i) rejects property rights argument (ii) gov’t cannot make you say something to use truth of words against you. d) The Ct holds that the blood test was a search but was not unreasonable b/c exigency excuse, officer's actions meet reasonableness test (a) concern with the preservation of evidence e) Effect on Boyd: (a) 5th not about all evidence, only testimonial communication (b) 4th not about property rights anymore (c) "mere evidence" rule dead (although not mentioned) 3) Warden, Maryland Penitentiary v. Hayden (1967; Brennan) a) Cops seized Hayden's clothes that he wore during commission of the crime b) Ct says: (a) principal object of 4th Amd't is not protection of property rights, it is protection of privacy rights (b) must recognize interest in privacy even where there is no property interest c) expressly gets rid of mere evidence rule: 4th Amd't can secure the same protection of privacy whether the search is for mere evidence or for fruits, etc. (a) can search for mere evidence as long as you fulfill PC requirement4 d) police had PC based on witness account, no need for warrant b/c of exigency (a) police, who are in hot pursuit of a criminal suspect, may search and search may include identifying clothing (ii) adds to exigency of the circumstances 4) Katz v. U.S. (1967; Stewart) (Modern test for search) a) FBI agents placed electronic eavesdropping equipment on the outside of a public phone booth from which , a bookmaker, conducted his business. b) Answers question: What is a search, for 4th Amd't purposes? A 4th Amd't search or seizure takes place only when a person's reasonable expectation of privacy has been violated (from CT) c) predecessor: Olmstead (1928): nothing counts as a 4th Amd't "search" if there is no physical invasion d) Holding: (a) electronic eavesdropping is NOT permissible under the 4th Amd't b/c  had a reasonable expectation of privacy (b) the 4th Amd't protects people, not areas/places e) Harlan's concurrence: (more authoritative than majority opinion) (a) Where a person has a constitutionally protected reasonable expectation of privacy, an intrusion, either physical or electronic, into that privacy is a violation of 4th Amd't (b) Two requirements for protection (subjective/objective standard): (i) person must have exhibited an actual (subjective) expectation of privacy (objects, activities or statements that he exposes to the plain view of outsiders are not protected b/c no intention to keep them to himself has been exhibited) (ii) the expectation must be one that society is prepared to recognize as reasonable (objective) (conversations in the open not protected against being overheard b/c expectation of privacy would be unreasonable) 5) Nowlin's "Schema" for objectively determining whether there is a reasonable expectation of privacy a) subjective expectation b) objective/reasonable expectation (a) empirical – question of fact (b) normative – question of value o privacy value o level of intrusion o attempts to guard o balance value to law enforcementB) "False Friend" Cases 1) Non-bugged informers: Hoffa v. U.S. (1966) a) Holding: no matter how strongly a  may trust an apparent colleague, his expectations in this respect are not protected by the 4th Amd't when it turns out the friend is an informer b) There is no 4th Amd't protection given to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." 2) False friend + recording device: not a 4th Amd issue - Lopez 3) False friend + transmitting device: U.S. v. White (1971; White)5 a) White told some stuff about narcotic sales to a gov't informant; agents monitored the conversations thru radio frequency b/c informant wore a wire. 4th Amd't violation? b) Holding: No 4th Amd't violation: (a) When a person misplaces his trust and makes incriminating statements to an informer, he does not have any justifiable expectation of privacy that has been violated. (b) "bugged agents" are not eavesdropping and thus cannot possibly violate the 4th Amd't. (c) big thought is assumption of risk that the person you talk to may pass info on to other people. (diff. b/w White and Katz) (i) if we have informers, we can have informers with recorders or transmitters. c) Dissent - there is an expectation by people that their statements will not be widely broadcast. Therefore the level of intrusion is much higher when there is simultaneous transmission.C) Open fields & Curtilage 1) Oliver v. U.S. (1984; Powell) a) Oliver owns a 100-acre farm w/ a farmhouse near one edge. He grows marijuana in the very middle of the 100 acres. He has fenced in and locked the farm and put up "No trespassing" signs. Reasonable expectation of privacy? b) Holding: (a) Curtilage (i) courts have defined curtilage by reference to the factors that determine whether an individual has a reasonable expectation of privacy in areas immediately adjacent to the home (ii) the curtilage warrants the same 4th Amd't protections as the home. (b) Open fields doctrine (Hester v. U.S., 1924): a person generally does not have a reasonable expectation of privacy with respect to open fields outside the curtilage, so open fields are not subject to 4th Amd't protections (not part of home, not really part of "effects") (c) Here, fence and "no trespassing" signs don't matter: "The expectation of privacy must be legitimate. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the test is whether the gov't's intrusion infringes on the personal and societal values protected by the 4th Amd't. 2) Schema: a) privacy of open field is low b) attempts to guard via trespass signs not very effective c) reasonable to expect trespass, therefore police action not intrusive d) value to law enforcement to discover field. 3) Importance – field does not exactly have to be open; focus is on distinction b/w cartilage and open field. 4) U.S. v. Dunn (1987) a) Ct announces four-factor balancing test to determine whether an area is w/in the scope of curtilage (a) the area's proximity to the home (b) the existence of an enclosure around the area (c) the nature of the uses to which the area is put (d) the precautions taken to exclude others from the area6 b) All four factors must be considered to determine whether property falls into common-law definition of curtilage ("the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life" – from Boyd)D) "Plain View" 1) in general, the police do not commit a 4th Amd't search when they see an object that is in the plain view of an officer who has a right to be in the position from which the observation is made (lawful vantage point). a) the "plain view" rule applies to senses other than sight (e.g. touch, hearing, smell) 2) California v. Ciraolo (1986; Burger) a)  growing marijuana in back yard, has area enclosed by a 6' fence and a 10' fence. Cops get anonymous tip, so they fly over yard at 1000', observe plants, take pictures. Search? b) Holding: Not a search. Anything the police can see with the naked eye falls w/in the "plain view" doctrine, as long as the aircraft is in public, navigable airspace. c) Reasoning:  knew that people could fly over his house and see the marijuana, so no objective expectation of privacy 3) Florida v. Riley (1989) a) Cop flew over 's house in a helicopter at 400' and saw marijuana growing in an enclosed greenhouse. Search? b) Holding: Not a search. Ct uses the FAA regulations as limits for how low the police may fly. The FAA says helicopters are allowed to fly at 400'; therefore, the officer had a legal right to be there, therefore plain view doctrine applies. c) Dissent: question should not be whether the police could legally occupy the space from which the observation is made, but whether the public normally occupies it. 4) Bond v. U.S. (2000; Rehnquist) a) Border guard gets on a bus (which he has a right to do) and squeezes all the luggage in the overhead storage rack. When he squeezes 's soft bag, he feels a brick-like object; suspecting drugs, he opens it and finds meth. Search? b) Held: 4th Amd't search b/c Bond had a reasonable expectation of privacy (a) objective test: a reasonable person would expect his bag would be subject to some handling by others, but would not expect this level of exploratory squeezing (b) subjective test: Bond had kept his stuff in an opaque bag and kept it near him; didn't expect to have this intrusive and probing handling; travelers are particularly concerned about carry on luggage, using it to transport items they prefer to keep close at hand. c) Plain view doesn't apply: cop didn't have a right to do the observing (touching) b/c such touching violated 's 4th Amd't rights (would have been ok if he just looked at the bag from the aisle) 5) Air Pollution Variance Board v. Western Alfalfa Corp (1974): daylight visual observation of smoke plumes from open fields of respondent's property not a search 6) Rakas v. Illinois (1978): automobile passenger has no legitimate privacy interest in unlocked glove compartment or area under front seat 7) U.S. v. Place (1983) a) dog sniff of luggage located in a public place is not a search b) fails objective: social value - high; intrusiveness/guarding – low 8) Hudson v. Palmer (1984) a) prisoner has no legitimate privacy expectation in prison cell7 b) 4th Amd't not applicable w/in confines of prison cell 9) New York v. Class (1986): auto owner has no legitimate privacy interest in vehicle identification number 10) California v. Greenwood (1988): 4th Amd't does not prohibit warrantless seizure and search of garbage placed in opaque containers and left for collection on curb in front of home 11) Kyllo v. U.S. (2001) a) cops used a thermal imaging device aimed at 's home from a public street to detect relative amounts of heat w/in the home; garage much hotter so  probably using heat lamps to grow marijuana there b) Holding: constitutes a 4th Amd't search b/c observation could not be made by the naked eye in a place legal for cops to be. (a) the information could not otherwise have been obtained w/o physical intrusion into a constitutionally protected area (b) the technology in question is not in general public use 12) U.S. v. Jacobsen (1984) a) Fed Ex employees opened 's package, re-sealed it, and told cops they suspected drugs. A gov't agent re-opened the bag and found a white substance; he ran a chemical "field test" to determine whether it was cocaine (it was). Search? b) Fed Ex people opening not a 4th Amd't search: they are private parties; 4th Amd't requires state action (a) all gov't employees can possibly violate 4th Amd't (b) a private person is acting as an agent of the state can violate 4th Amd't (c) test to determine whether a private party is acting as a state agent (Skinner) is a totality of the circumstances test. Ask: did the state (i) authorize? (ii) encourage? (iii) participate? c) Agent's re-opening not a search – police can replicate a private search (a) didn't exceed the scope of the private search (b) didn't enable agent to learn anything that had not previously been learned during the private search d) Field test to determine whether cocaine not a violation – all it does is reveal whether or not drugs are present (a) could disclose only one fact previously unknown to agent (b) that disclosure could not compromise any legit interest in privacy b/c (i) the fact that something isn't cocaine isn't of special interest (ii) the fact that something is cocaine means it is not something in which  could have a legitimate privacy interest. e) basic rule from Jacobsen and Place: a gov't action does not threaten protected privacy interests if the gov't is almost certain to learn nothing at all, nothing of significance, or nothing "legitimate."III) 4 TH AMD'T THRESHOLD: HAS THERE BEEN A 4 TH AMD'T SEIZURE?A) Seizure of Property 1) Test: Property has been seized for 4th Amd't purposes where there has been a meaningful interference with a possessory interest (Jacobsen) 2) Destruction of property is considered a meaningful interference, but testing a small amt is a de minimus destruction, which is not a meaningful interference8 3) Moving an object around (e.g. picking it up to look at the serial no.) is not a meaningful interferenceB) Seizure of Persons 1) Test: a 4th Amd't seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied (Brower v. County of Inyo) 2) Obvious Seizures: a) handcuffs, arrest, getting in squad car b) otherwise indicating you're not free to leave c) using force against you which touches you 3) Questioning a) U.S. v. Mendenhall (1980) (a) lady who fit "drug courier" profile stopped on concourse, ID/ticket names don't match, cops ask her to go with them to the DEA office in the airport, she does and consents to search (b) Rule: a person is seized only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave o Objective test; TOC o Suspect’s perspective (c) Holding: voluntary questioning is not a seizure; taking suspect DEA office was not seizure b/c free to leave. (d) Dissent – show of authority would not make suspect feel free to leave (e) Ct cites examples of circs that might indicate to a reasonable person that he is not free to leave: (i) the threatening presence of several officers (ii) the display of a weapon by an officer (iii) some physical touching of the person (iv) the use of language or tone of voice indicating that compliance with the officer's request might be compelled (v) officer’s intent is irrelevant b/c only concerned with suspect’s perspective b) Florida v. Royer (1983) (a) same facts as Mendenhall except cops did not give ID and ticket back before asking if  would accompany them to the DEA office (b) Holding: seizure: agents' retention of ticket and ID indicated that he was not free to leave. c) Florida v. Bostick (1991) (a) Officers get on bus and randomly question people. (bus sweep) They question  and ask to search his stuff. He may have consented. Did the questioning leading to consent constitute an unreasonable search? (b) reformulation of Mendenhall test for confined or mobile spaces like buses: would a reasonable person feel free to decline the officers' requests or otherwise terminate the encounter? (i) if freedom to leave is contingent on something other than the police action, no seizure (no per se seizure rule for bus sweeps)9(c) this test applies to any situation where the individual is restricted in their movement b/c of their circumstances (e.g. on a bus, in the workplace) (d) Holding: Ct doesn't hold but remands back to FL Ct to apply new rule (e) Dissent – police acted w/o articulable suspicion; circumstances themselves make action intrusive; gov’t should not use confined spaces to their advantage 4) Pursuit a) California v. Hodari D. (1991) (a) kids running from cops, one throws some crack away as he runs, the cop tackles him and arrests him, then takes the crack. When did seizure occur? (b) in pursuit, seizure occurs when there is a submission to a show of authority, or when there is actual, physical touching (c) if there is a show of authority but  does not submit, there is no seizure until touching (d) if an officer touches and you get away again, there is only a momentary seizure b) Michigan v. Chesternut (1989) (a) following a suspect in a marked car did not amount to a seizure (b) it was important that the police had not used sirens or flashers, had not commanded the suspect to stop, had not displayed weapons, and had not used the car to block or control subject's movements. (c) For seizure, there must be a heightened level of coercionIV) UNREASONABLENESS AND THE PROBABLE CAUSE REQUIREMENTA) The requirement of P/C applies to two different situations 1) before judge/magistrate may issue a warrant for search or arrest, he/she must be satisfied the P/C to do so exists 2) before the police may make a warrantless search or arrest (permissible only where there is a warrant exception), the officer must have P/C for that search or arrestB) Two contexts: Probable cause to arrest v. P/C to search 1) P/C to arrest: a) certain quantum of likelihood that (a) the particular individual (b) has committed or is committing a particular crime 2) P/C to search: a) certain quantum of likelihood that (a) something that is properly subject to seizure by the gov't (b/c of their connection to a crime, i.e. contraband or fruits, instrumentalities, or evidence of a crime) (b) is presently (c) in the specific place to be searched 3) Must be more than mere suspicion 4) Nowlin says in both cases the "quantum" is around 35-40% likelihood 5) T/C test: objective test on the concept or reasonableness; fluid, common sense test with regard to circumstancesC) Findings of P/C10 1) When an officer gives a magistrate an affidavit to obtain a warrant, he/she must tell the magistrate the basis for his/her knowledge. (a) magistrate needs true facts – that info is reliable and its foundation (b) police must show: (1) Veracity – satisfied by an oath/affirmation (2) Basis of knowledge – if the basis of knowledge turns out to be an informant, the informant must show veracity and basis of knowledge 2) Accepted bases: a) first-hand observation b) inference from facts seen in first-hand observation c) informant – 2 things come into play: (a) is informant credible, reliable, veracious? (b) what is basis of informant's knowledge?D) Hearsay-based findings of P/C (informants) 1) Spinelli v. U.S. (1969; Harlan) a) Police receive tip and get a warrant. Question: was there sufficient P/C? b) Spinelli 2 prong test (what police must show): (a) Veracity: the officers must attempt to support their claim that their informant is credible or his information reliable (must be evidence that the informant is reliable). Can be established through: (1) corroboration of statements, or (2) past reliable info provided by informant, or (3) statement against informant’s interest (b) Basis of knowledge: the affidavit must set forth the "underlying circumstances" necessary to enable the magistrate independently to judge the validity of the informant's conclusion. Can be established through: (1) first hand observation (2) second hand observation o requires check into veracity and bok of 2nd informant (3) self verifying details o suggest reliable inside info. c) Spinelli court treated these two prongs as being totally independent of each other, so that each had to be met before PC would be established. d) Spinelli P/C in a nutshell: (a) if there are self-verifying details, the tip is enough for P/C (b) if no self-verifying details, look for corroboration (c) if no corroboration, consider the tip one of many P/C factors 2) Illinois v. Gates (1983; Rehnquist) a) Ct does away w/ rigid Aguilar-Spinelli test b) New test: Totality of the circumstances (a) the Aguilar-Spinelli prongs are now two factors in TOC test for the magistrate to consider in evaluating informant's information (b) a strong showing on one of the factors can make up for a weak showing on the other one (c) Key phrase in new test: "substantial basis" (refers to whether there is a substantial basis for reliance on the informant; if there is, then there is P/C) c) Why change to totality of circumstances test? (a) strict two-prong test is an impediment to police control (b) Spinelli test was very complex – magistrates are often not judges/lawyers (c) new test is a movement toward getting back to crime fighting11 (d) if test too technical, police can't get warrants and will instead just try to get people to consent to searches, which will undermine the 4th Amd't. E) Pretextual P/C: Whren v. U.S. (1996; Scalia) 1) Undercover cops thought s had drugs b/c of how they were acting, but did not have enough P/C to stop them and search them for drugs 2) guys committed two minor traffic violations (no signal), so cops pulled them over for that and saw the drugs a) Ds argued that b/c the officers were in plain clothes and in an unmarked car they are not supposed to be performing traffic stops, and therefore the stop was a pretext for an additional search. 3) Rule: A stop of a driver is not made "unreasonable" (and thus does not violate 4th Amd't) merely b/c the stop was based on a minor traffic violation that served as a pretext for a stop made for some other purpose. 4) Subjective motive of officer is irrelevant; only need an objective/reasonable basis for stop. 5) Policy dispute: This case, although 9-0, is controversial b/c cops can stop almost anyone for any reason - it's almost impossible to comply fully w/ the traffic lawsV) UNREASONABLENESS AND THE WARRANT REQUIREMENT Do this section A) Warrant preference 1) prefer officers to search w/ warrant rather that w/o warrant 1) a warrant, based on PC, is better than P/C and a warrant exception 2) a magistrate is more likely to make an accurate P/C determination than a cop 3) better to prevent invasions of privacy before they occur than remedy them after the factB) Warrant requirements 1) P/C 2) oath/affirmation of police officer a) what if officer lies or has reckless disregard for truth? b) Franks (1978) – if the false info is necessary to establish P/C,  can get a Franks hearing and get the warrant quashed & evidence suppressed 3) particularity a) must describe things to be searched or seized w/ particularity b) determines the scope of the warrant c) test for r'ble particularity is totality of the circumstances test (a) for home, must have at least correct address (b) for car, must have a detailed description (e.g. tag no., color, make, model) 4) must be issued by magistrate a) must be detached and neutral (a) doesn't have to be judge or lawyer (b) can be county clerk or Justice of the Peace (c) can't be member of the executive branch (e.g. cop or prosecutor) b) must be able to make a probable cause determination (at minimum)C) Execution of warrants 1) Execution w/in specified time12 a) some jurisdictions, either by statute or rule of procedure, require that a search warrant be executed w/in a designated period of time (e.g. 10 days from the time the magistrate signed the warrant) b) this is on the assumption that the evidence supporting the search warrant is subject to "staleness" w/ the passage of time 2) Nighttime execution a) some jurisdictions, either by statute or rule of procedure, prohibit nighttime execution of warrants in the absence of special circumstances. b) "Daylight" is most commonly defined by specific statutes; the Federal Rules define it as 6 a.m. to 10 p.m. local time. c) Unclear whether this is also a constitutional requirement. 3) Means of entry to execute a) Wilson v. Arkansas (1995): the common law "knock and announce" principle forms part of the r'bleness inquiry under the 4th Amd't and is, in general, required by the 4th Amd't. b) Richards v. Wisconsin (1997): in order to justify a "no-knock" entry, the police must have a r'ble suspicion that knocking and announcing their presence, under the circumstances, would be dangerous, futile, or inhibit the effective investigation of crime. 4) Damage to ppty during execution: excessive or unnecessary (unr'ble) ppty destruction during a search violates the 4th Amd't, even in instances where the entry itself is lawful and fruits of the search are not subject to suppression. (U.S. v. Ramirez, 1998) 5) No occupants on premises during execution: courts are in general agreement that an execution of a search warrant is permissible even in the absence of the occupant of the premises searched. 6) Procedures in the absence of the occupant a) statutes, rules of procedure or departmental policies typically require officers, when searching premises in the absence of the occupant, to leave on the premises a copy of the search warrant and an inventory of seized items b) It is unclear whether also a constitutional requirement c) U.S. v. Simms (2000): the 4th Amd't does not require officers to leave a copy of the search warrant or an inventory of items seized.VI) WARRANT EXCEPTIONSA) Exigent circumstances 1) generally, three kinds a) preventing the imminent loss/destruction of evidence b) preventing harm to persons (loose weapons) c) flight of the suspect 2) Warden, Maryland Penitentiary v. Hayden (1967) a) cops found clothes in washing machine that  wore while committing crime; seized clothes. Unr'ble? b) no warrant – exigency exception ("hot pursuit") c) rule: scope should not exceed PC or exigency (a) the search ends when the exigency ends (e.g. if concern is flight of suspect, search ends when he is caught) (b) officer is entitled to look anyplace the item he has a PC to search for could r'bly be (objective test) (c) in this case could look anywhere the suspect or weapons might be until they are found and exigency was eliminated.13 d) Ct said "the 4th Amd't does not require police officers to delay in the course of investigation if to do so would gravely endanger their lives or the lives of others" 3) Welsh v. Wisconsin (1984): the application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed (measure gravity of offense- in this case, DUI) a) no exigency b/c person was sleeping at home and police had time to secure W 4) Vale v. Louisiana (1970): police may not create an exigency situation and then take advantage of it as a warrant exception - the officers here showed up w/o a warrant when they had an opportunity to procure a warrant a) initial sweep of house followed by a second moments later when family arrived home – procured exigency through first search b) officers already had 2 arrests warrants, therefore they could have procured a search warrant as well. c) Contrast with preservation of evidence argument 5) Illinois v. McArthur (2001) a) domestic violence, as she is leaving she says he has drugs in the house and no one else is home b) he is standing outside the house at the time c) police seize the house (lock the guy out) until they get a warrant d) Ct says they did the right thing e) Officer can’t create exigency. If there is an exigency and officers can cure through seizure of premises rather than search, officers should seize premises.B) Automobile searches 1) Chambers v. Maroney (1970; White) a) cops had P/C to believe s robbed a gas station, so they arrested them; seized their car and took it to the station b) at the station, they searched the car w/o a warrant, even though they had plenty of time to get one, and find incriminating evidence c) Ct cites auto exception in Carroll v. U.S. (1925): (a) if police have PC to search vehicle, they may do so w/o warrant (b) ready mobility of automobiles create exigency; diminished expectation of privacy in cars d) majority doesn't see difference btwn Chambers and Carroll (a) Carroll holds that a search warrant is unnecessary where there is P/C to search an automobile stopped on the highway, and thus an immediate search is permissible (b) No difference in practical consequences between performing an immediate search w/o a warrant and seizing a car until a warrant is obtained e) broad auto exception is not about an actual exigency; w/autos there will be an exigency often enough to justify a bright line rule 2) California v. Carney (1985; Burger) a) warrantless search, w/ P/C, of 's fully mobile motor home parked on a public lot; cops found incriminating evidence. Does motor home fall under auto exception? b) Ct says that there is a diminished expectation of privacy in vehicles; this is a new, additional basis for the auto exception (original was "ready mobility"/exigency) c) Why is there a diminished expectation of privacy in a car? (a) you can see into vehicles (b) pervasive regulations on automobiles (c) you are more likely to have contact w/ police in car than at home14 (d) vehicle not a repository for personal effects d) When does the auto exception apply? Totality of circumstances test: vehicle must reasonably appear to officer to be (a) readily mobile (b) used primarily for transportation (c) in a public place (a consideration but not a requirement) e) court does not want to make a distinction b/w different types of vehicles, must appear to be readily mobile, if not, outside of auto exception. 3) Florida v. White (1999): auto exception applies when there is P/C to believe the vehicle itself is subject to forfeiture as contraband, not just its contents 4) Coolidge – suggests that a vehicle parked in a driveway or garage is a curtailage of the home and requires warrant (a) however, if parked on a street or lot open to the public, can search w/o warrant 5) U.S. v. Chadwick (1977; Burger) a) Footlocker being transported by r.r. that police had PC to believe contained drugs, watch suspects place footlocker in trunk of car, do a sweep and search footlocker b) Auto exception does not apply to footlockers in the trunk of a car (a) higher expectation of privacy – more like luggage where people keep their personal effects – auto exception does not apply to these types of containers (b) outside the scope of search incident to arrest b/c search happened several hours after initial arrest 6) Arkansas v. Sanders (1979): where police had P/C to search container (not car), auto exception does not extend to container merely b/c it was located in an automobile. You have to have a warrant to search luggage whether it is in a car or not. a) overruled 7) Robbins v. California (1981): a) no distinctions among different kinds of containers in a car b) where P/C is to search vehicle, warrant requirement still applies to all containers in that car unless their contents may be said to be in plain view 8) U.S. v. Ross (1982): a) overrules Robbins b) where there is P/C to search vehicle, police may conduct a warrantless search of the car and closed containers in the car 9) California v. Acevedo (1991; Blackmun) a) gets rid of confusing Chadwick-Sanders rule; interprets Carroll as a bright line rule to govern all searches of automobiles: cops may search a car and the containers within it, wherever they have P/C to believe contraband or evidence is contained. b) where there is P/C to search a closed container, which happens to be in a car, and not P/C to search the car itself, police may stop the car and seize and open the container, all w/o a warrant 10) Wyoming v. Houghton (1999; Scalia): a) if container is in vehicle, and cops have P/C for vehicle, ownership of the container is irrelevant, need no P/C for owner (a) this means that if cops have P/C to search A's car for drugs, and B's purse is in A's car, they can search B's purse for drugs even if no P/C that B's purse contains drugs or that B is involved in drug activity. (b) however, they could not search B's person based on these facts (pockets) SEE CHART IN NOTES15 C) Warrantless arrests 1) U.S. v. Watson (1976; White) a) no warrant preference for arrests: a warrant to arrest is generally not required by the Constitution when based on PC, even where there is plenty of advance notice. b) cops may arrest w/out warrant for any felony or any misdemeanor committed in officer's presence w/ PC (officer's presence means observed w/ his 5 senses) (i) appears that for crimes not committed in officer’s presence you do need arrest W. c) in the context of seizures, we will not look to Cl. 2, as you do with searches, but rather the historical standards to whether seizures are reasonable d) arrest warrants don't go stale (at least, not very often) the way search warrants do 2) City of Lago Vista - no 4th Amd violation for full custodial arrest w/PC for failure to wear seatbelt even though minor offense. a) balancing state and private int. should be done categorically and not on a case by case basis. 3) Gerstein v. Pugh (1975): judicial determination of P/C following arrest, as a condition to any significant pretrial restraint of liberty, must be obtained promptly after arrest 4) County of Riverside v. McLaughlin (1991) a) gives meaning to Gerstein "promptness" requirement, says w/in 48 hours of arrest is r'ble b) person detained for fewer than 48 hours may still argue that delay was unr'ble c) longer than 48 hours and state must prove emergency circumstancesD) Search incident to arrest 1) Chimel v. California (1969; Stewart) a) Cops arrest  at his home; they have an arrest warrant but no search warrant; they search his entire home, claiming search incident to arrest b) Holding: only the area w/in 's immediate control can be searched incident to arrest c) Reasoning: (a) reasons for allowing search incident to arrest are police safety ( may have a weapon somewhere) and preservation of evidence ( or someone else may try to destroy evidence) (b) neither of these reasons justifies searching beyond 's reach, wingspan or grabbing area d) scope of S/I/A limited spatially 2) U.S. v. Robinson (1973; Rehnquist) a)  is pulled over/arrested for driving w/o a permit, cop searches him and finds heroin. Did the scope of the search exceed the quantum of suspicion? b) Holding: no (a) in the case of a lawful, custodial arrest, full search of the person is ok (b) even where no possible evidence or "fruits," still need to disarm him to take him into custody (c) the search is only a limited extension of the invasion of privacy already justified by the arrest c) scope of S/I/A limited by quantum of suspicion 3) Gustafson v. Florida (1973): doesn't matter if there are no police regulations requiring the officer to take  into custody nor police policies requiring a full-scale body search of an arrestee, warrantless still ok. 16 4) Knowles v. Iowa (1998) a) If an officer lawfully issues a citation (e.g. traffic ticket), he is not allowed, merely by virtue of the stop, to do a search b) It doesn't matter that the officer could have made a custodial arrest for the violation but chose to issue a citation instead c) Ct says neither of the underlying rationales for search incident to arrest applies to a traffic citation d) loophole in Knowles: cop may say you are under arrest, search you, and upon finding nothing, say he changed his mind and is going to issue you a citation instead. Not many claims you can bring for that. 5) Atwater (2001) a) soccer mom case – officer subjected woman to full custodial arrest for not buckling her seatbelt as a pretext to do a full search b) Ct said no 4th Amd't violation; arrest can be pretextual c) majority followed Watson rationale 6) New York v. Belton (1981; Stewart) a) when police have made a lawful custodial arrest of the occupant of an automobile, they may so a search incident to arrest of the car b) bright line rule: "grabbing area" under these circumstances is entire passenger compartment, including the contents of any containers found in that compartment c) trunk of car is excluded d) not to be confused w/Chambers auto exception e) Belton rationale inconsistent w/Chimel; under Belton rationale, Chimel scope should have been a one-room search 7) Thornton v. U.S. (2004; Rehnquist) a) Holding: once a police officer makes a lawful custodial arrest of an automobile's occupant, the 4th Amd't allows the officer to search the vehicle's passenger compartment incident to arrest, even when an officer does not make contact until the person arrested has already left the vehicle b) Reasoning: stress of arrest is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. 8) Washington v. Chrisman (1982) a) holding: an officer can enter the dorm room of an arrestee w/o a warrant b) reasoning: (a) officer needs to monitor the movements of an arrested person following the arrest (b) warrantless entry into private place justified here by cop's compelling needs to ensure his own safety and the integrity of his arrest c) here, the kid wanted to go to the dorm room and the cop came with him; court hasn't ruled on whether cop could tell the kid to go to the dorm room or whether the cop could search the dorm room b/c it has come into arrestee's immediate control. 9) Payton v. New York (1980; Stevens) a) If there are no exigent circumstances, police may not enter a private home (w/o consent) to make a warrantless arrest – need warrant b) When you have an arrest warrant, you can (a) search only where the person might be, but if there is PC to believe person is actually in their home, don’t need a search warrant to enter. AW is sufficient.17(b) seize objects in plain view c) what if suspect is in neighbor’s house and have AW? (a) when going into home of 3rd party, and not that of arrestee, must have a search warrant (b) want to protect 3rd party’s privacy rights, aw fails to protect 3rd party’s rights of his own home. 10) Maryland v. Buie (1990; White) a) police lawfully execute an arrest warrant at 's home, then search the home looking for third parties who might be a threat; can cops continue searching after arrestee is seized? b) Holding: where the arrest takes place in the suspect's home, the officers may conduct a "protective sweep" (cursory visual inspection of all or part of the premises where a person might be hiding) if: (i) in space immediate adjoining place of arrest, or (ii) RS that person may be in area or who might pose a threat to officersE) Inventory Searches 1) there seems to be an "inventory search" exception to the warrant requirement, which applies even if the search is not, strictly speaking, incident to arrest. Inventory searches seem to fit into the "special needs" category of searches. a. as a result – no W, RS, IS or PC is required 2) Illinois v. Lafayette (1983; Burger) (a)  was arrested and not searched; at the station, the bag he was carrying is taken and searched; found drugs. (b) to be constitutional, search must pass balancing test - state interest v. privacy interest (i) state interests – “special needs” search has nothing to do with investigation  dangerous instruments  false claims  lost/stolen items  identification of suspect (b) privacy interest: 's interest in privacy (c) to have state interest outweigh privacy: (i) must be a standard operating procedure in place for inventory (ii)  must be lawfully in custody (iii) must be incarceration or prospective incarceration following arrest (d) "the r'bleness of any particular gov't activity does not necessarily turn on the existence of alternative less intrusive means." (e) must be done for “special needs” purposes and not for general crime fighting 3) Colorado v. Bertine (1987; Rehnquist) (a) 's van was searched pre-impoundment after arrest for DUI; van was impounded at secured, well-lit lot, not jail. b) Ct says security of storage facility does not eliminate need for inventorying c) Ct does away w/ balancing test and makes bright line rule for impoundment: inventory searches always okay as long as: (a) the police follow standardized procedures, so that the person searching does not have unbridled discretion to determine the scope of the search o as long as discretion is limited it does not have to be eliminated (b) the police do not act in bad faith or for the sole purpose of investigation18 (c) however, pretextual inventory searches are not okay. 4) Florida v. Wells (1990) (a) to be constitutional, it is not necessary that the inventory procedure mandate either that all containers or no containers will be opened (b) police can exercise some discretion as long as there are r'ble guidelines as to which will be openedF) Consent searches 1) Schneckloth v. Bustamonte (1973; Stewart) a) how to determine whether consent is valid/ search is r'ble: totality of the circumstances test (a) must be voluntary (no duress or coercion); (b) think of Mendenhall r'bleness test b) A person's consent will be effective even if he did not know he had a right to refuse to consent to the search (a) lack of knowledge is only one factor in T/C, but not prereq. c) Dissent has different test (a) says consent is a waiver of 4th Amd't rights (b) Zerbst: to be effective, a waiver must be (i) knowing (ii) intelligent (iii) voluntary 2) Ohio v. Robinette (1996; Rehnquist) a) Ct rejects a "tell-before-you-ask" rule (after, say, a traffic stop that does not end in arrest, the officer must tell the person he is free to go before asking for his consent) b) Ct says no bright line rule; must always consider totality of the circumstances c) Concerns: (a) consent not truly voluntary b/c the nature of the stop creates a coercive atmosphere (b) possible unlawful detention (lawful detention becomes unlawful once the officer has used up a certain, r'ble amt of time and his justification for seizure has ended) 3) U.S. v. Watson (1976) a) the fact that a person is in custody does not render consent involuntary, even if the person is not told he has a right to refuse consent. b) 's lack of knowledge factor to be considered in totality of circumstances 4) U.S. v. Matlock (1974; White) a) "common authority": each person who lives in a particular dwelling has "common authority" over the premises b) Holding: each person who has common authority can give consent to search the premises c) Justification: when you live w/ someone else, you have voluntarily reduced your expectation of privacy, and you assume the risk of that person consenting 5) Illinois v. Rodriguez (1990; Scalia) a) different from Matlock in that 's ex-girlfriend did not actually have common authority b) Holding: A search will be valid if consent is given by a person who the police r'bly, but mistakenly, believe has common authority over the premises. 6) Bumper v. North Carolina (1968):19 a) Where an officer falsely asserts that he has a search warrant (false claim of present authority), then procures "consent," the consent is invalid. b) Ct has held that consent is also invalid if it is induced by reference to an invalid warrantG) Checkpoints 1) Delaware v. Prouse (1979) a) If the police randomly stop cars (for regulatory purposes), they may not make a particular stop unless they have a suspicion of wrongdoing based on an objective std. b) That is, a practice of making totally random stops, where a stop is made even though the officer has no r'ble grounds for suspicion, violates the 4th Amd't 2) Michigan Dept. of State Police v. Sitz (1990; Rehnquist) a) Police may set up a fixed checkpoint on the highway to test for compliance related to driver safety (e.g. license, registration, sobriety – considered "special needs") b) Analysis: Brown balancing test btwn (a) state interest (b) degree of intrusion (i) objective intrusion (ii) subjective intrusion (subjective of r'ble law-abiding citizen) (c) how effective is it c) St held state interest high, level of intrusion relatively minimal, esp. compared w/ random stops d) Standard operating procedures are important b/c it makes sure that officers are using checkpoints for roadway safety instead of some other reason 3) City of Indianapolis v. Edmond (2000; O'Connor) a) police may not set up a fixed checkpoint to pursue general crime-fighting objectives, such as narcotics detection b) there is a nexus btwn sobriety and roadway safety; not so btwn generalized crime fighting and roadway safety c) must have a primary purpose that is a “special need” and meet Brown balancingH) Other "Special Needs" searches 1) Border stops and searches: U.S. v. Ramsey (1977): border searches w/o warrants and w/o P/C are still r'ble w/in meaning of 4th Amd't 2) Search of student in public school: New Jersey v. T.L.O (1985) a) to search, public school officials do not need warrant or P/C b) instead, Ct applies r'bleness std (a) must have R/S at the time the search is undertaken and (b) must limit the search specifically to the area r'bly included in that suspicion 3) Drug testing in public schools a) Vernonia School District v. Acton (1995): random drug tests for student-athletes OK b) Board of Education v. Earls (2002): random drug tests for students involved in "competitive extracurricular activities" OK 4) Search of gov't employee's office: O'Connor v. Ortega (1987): search of gov't employee's office OK if a) there are r'ble grounds for suspicion of work-related misconduct or b) search is necessary for a non-investigatory work-related purpose such as retrieval of a file20 5) Drug testing of gov't employees a) Treasury Employees v. Von Raab (1989): drug tests for U.S. Customs Service employees seeking transfer or promotion to certain positions involving drug interdiction or the carrying of firearms OK b) Skinner v. Railway Labor Executives' Ass'n (1989): drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations OK c) Chandler v. Miller (1997): drug tests for candidates for state elective office not OKI) Plain view doctrine – seizure doctrine 1) Plain view doctrine: If the police are properly conducting a search, and come across items that are not listed in the warrant (but that appear relevant to a crime), the police may generally seize the unlisted items. a) the officer has to have a lawful vantage point to see the object and a right of access to seize the item (no 4th Amd't violation) b) the seizable nature of the item must be immediately apparent (must have P/C to seize the item w/ no add'l search involved) (a) the evidence must be sufficiently connected w/ criminal activity that a warrant could have been procured for it (b) the items discovered in plain view don't have to relate to the same criminal activity that gave rise to the warrant, as long as there is P/C for the seizure of these new items 2) Horton v. California (1990; Stevens): It is not required, for application of the plain view doctrine, that the police's discovery of an item in plain view be "inadvertent."J) Stop-and-Frisk and other brief detentions 1) Terry v. State of Ohio (1968; Warren) a) Ct requires only r'ble suspicion to do a stop-and-frisk (Nowlin says r'ble suspicion is about half of P/C) (a) R/S is a TOC test; must be more than a hunch b) distinguish btwn full custodial arrest and Terry stop (a) stop is a seizure but is less intrusive than full arrest (b) only need R/S for stop; need P/C for seizure (c) R/S must relate to general criminal activity ("crime afoot") (d) temporal std for stop: officer must act w/ due diligence and r'ble promptness to confirm or dispel his suspicion of weapon, and no longer or it becomes a full custodial arrest (e) spatial std for stop: if the officer moves you away from the scene past a certain degree (no bright line rule, must be r'ble) c) distinguish btwn full search and Terry frisk (a) frisk is a search but is less intrusive than full search (i) frisk is a pat-down over clothing: only allowed to go into pockets if you feel weapon that comes under plain view doctrine (ii) plain view applies to all the senses; here it would be "plain feel" (b) only need R/S for frisk; need P/C for search (c) R/S must relate to suspicion that person has a weapon ("armed and dangerous") (d) Cts generally apply a lower level R/S test for frisk than stop b/c officer says he felt threatened (e) seizure intensity dimension: Terry stops do not involve things like:21 (i) handcuffs (ii) being put in squad car (iii) use of force d) traffic stops are routinely treated as Terry stops if the officer has already told you that you're going to get a citation and be let free e) in general, to stop must have R/S that crime is afoot; to frisk must have R/S that suspect is armed and dangerous 2) Illinois v. Wardlow (2000; Rehnquist) a) The fact that an individual has attempted to flee when seen by the police will normally raise the police's suspicion and may, w/o more, justify the police in making a Terry stop b) Here, the combination of 's fleeing from the police and his presence in a high- crime area created R/S that  was engaged in some sort of wrongdoing c) appropriate analysis is case-by-case totality of the circumstances; objective test; looking for basis for the stop (crime afoot) AND basis for frisk (armed and dangerous) 3) Alabama v. White (1990; White): a) R/S, like P/C, can be established through second-hand observation (anonymous tips, etc.). b) Apply the same framework as in Gates – use TOC test but focus on veracity of tip and basis of knowledge (a) difference, however, that here the test is less stringent b/c it is R/S 4) Florida v. J.L. (2000; Ginsburg) a) where an informant is anonymous, the police must have reason to believe that the informant's knowledge about the suspect's criminal conduct is reliable b) it's not enough that the informant merely knows something non-criminal about the suspect that anyone could know (e.g. the suspect's physical appearance and present location) c) basic description of individual in terms of race, age, or clothing are not self verifying details d) the line is whether the info is predicative info. 5) Hiibel (2004): S. Ct. upheld state law that made it a crime to refuse to give your name to an officer who asks for it in the course of a Terry stop, as long as officer's request is w/ in scope of Terry stopK) Scope of Stop and Frisk 1) Frisk a) pat down on the outer clothing b) can reach in and take out those objects that you can’t determine are not weapons c) if something gets in plain view as a result of a lawful pat down, you may seize it (plain view doctrine) (1) lawful vantage point (2) right of entry (3) PC to seize (d) plain touch - Dickson (e) containers (1) soft sided – if it’s the kind of container that can contain a weapon, officer must squeeze or touch it. If can dispel its not a weapon – can’t seize (2) hard sided – most courts say may open a hard sided container w/o a pat down; another limitation on Chadwick22 2) Stop a) try to differentiate stop under Terry v. full custodial arrest b) Several Dimensions: (1) temporal – stops are meant to be brief; officers may hold for a reasonable amt of time and must act w/due diligence (2) spatial – movement and places; placing a person in a squad car and taking him to the station for investigation is a full custodial arrest unless voluntary (3) intensity – handguns or use of force; Terry stop may turn inot arrest if force is used (4) investigatory – are there any investigatory limitsL) Frisk of Vehicles 1) Michigan v. Long (1983; O'Connor) a) When police "stop" a person in a car, the police may frisk the person and "frisk" the car (search for weapons in the car's passenger compartment), even though the suspect is no longer in the car. (a) officers must have R/S that the driver is dangerous and has weapons and may gain control of weapons that may be in the car (b) officers must look only in parts of the passenger compartment where weapons might be placed or hidden b) It is r'ble for officers to open containers in passenger compartment that could contain weapons in order to confirm or dispel the R/S of danger 2) Pennsylvania v. Mimms (1977) a) a cop can always order a driver to exit the vehicle in a lawful stop b) no quantum of suspicion required c) interest in officer's safety 3) Maryland v. Wilson (1997) a) Mimms rule extended to passengers b) court doesn't say whether you can detain the passengers, after they exit, for the entire duration of the stop (a) argument for yes - these ppl can walk out officer's line of vision and then possibly shoot him (b) argument for no - these ppl haven't done anything wrongM) Searches and Seizures at a Place That May Be Searched Under Warrant 1) Ybarra v. Illinois (1979; Stewart) a) Officer has search warrant for bartender and the bar he works in; officer goes into bar and pats down the 9-13 patrons inside, finds heroin on  after reaching into his pocket b) Ct says 's presence on premises not enough for R/S – must have individualized suspicion c) Existence of search warrant does not create PC or RS to search additional patrons d) Where a person simply happens to be on the premises to be searched, and appears not to have any connection w/ the criminal activity giving rise to the warrant (or w/ the items mentioned in the warrant), that person may not be searched or detained e) When the police perform a Terry frisk, it must be limited to a search for weapons, or other sources of danger; that is, the purpose of the frisk may not be to search for contraband or incriminating evidence. 2) Michigan v. Summers (1981)23 a) Ct says that when officers are searching premises pursuant to a valid warrant for contraband, they may momentarily seize occupant or resident of the premises during the time that they are conducting the search; although such detention could be unr'ble in an unusual case involving special circumstances or a possibly prolonged detention b) Concern for safety, destruction of evidence, and flight of suspect c) Nowlin says this case is Payton in reverse (a) sw for person’s house provides limited authority to seize personN) Use of Force (these cases, though 4th Amd't violations, are not about the suppression of evidence, but rather are § 1983 cases for civil remedies. 1) Deadly force - Tennessee v. Garner (1985; White) a) guy stole $10 and a purse, cop shot him in the back of the head and he died b) shooting someone constitutes a seizure c) RULE: officer can use deadly force when (a) he has P/C to believe that the suspect poses a significant threat of death or serious bodily injury (e.g. cop must actually see a weapon) (b) he has P/C that force is necessary to effectuate the arrest (c) requirement of warning when feasible d) balancing (r'bleness) test: (a) state interest in crime control v. 's interest in right to life (b) majority says life beats crime control e) dissent (a) agrees w/ R/S (in part 1) but doesn't think need you need P/C (in part 2) (b) you just need R/S that suspect poses a threat 2) Non-Deadly Force - Graham v. O'Connor (1989): test for excessive force is T/C (r'bleness) test a) nature of crime or offense b) how much resistance is being offered? c) level of threat to officerVII) EXCLUSIONARY RULEA) Origins of the E/R 1) Evidence that is searched for or found in violation of the Constitution is inadmissible at trial. Remedy has shaped the evolution of the 4th Amd. 2) Weeks v. U.S (1914; Day) a) Weeks's papers are taken w/o a warrant for the purpose of using it as evidence against him b) Ct gives first formulation of E/R: evidence must be excluded at trial if taken in violation of 4th Amd't. c) Policy: (a) 4th Amd't right isn't really a right if there is no remedy for its violation (b) judicial integrity – if ct lets such evidence in, it has sanctioned the 4th Amd't violation 3) Wolf v. Colorado (1949) a) Ct incorporates 4th Amd't to the states thru 14th Amd't DPC, but doesn't impose fed'l E/R on states b) Reason: there may be methods other than excluding evidence that are equally effective at protecting 4th Amd't rights. Possible other remedies: (a) criminal or civil trespass action against cop24 (b) constitutional "tort" action (c) departmental discipline to cop c) Dissent: Exclusion is the only method that deters 4) Mapp v. Ohio (1961; Clark) a) Ct says E/R is incorporated to the states; overrules Wolf b) Reason: (a) logically and constitutionally necessary to insist on enforcing the E/R in both state and fed'l cases (b) The only effective way to deter illegal searches and seizures is to remove the incentive to violate the 4th amd't o Overriding concern for deterrence; difficult to deter conduct after violation has already occurred c) Dissent: Ct has overstepped its bounds; has no right to impose this fed'l rule on state courts (a) federalism (b) judicial restraint (c) respect for precedentB) E/R Policy 1) Reasons for the E/R a) originally (a) right only exists if there's a remedy (b) judicial integrity (c) deterrence of illegal search and seizure b) today, the Ct says deterrence is the only policy behind it 2) How does it deter? a) police are engaged in competitive practice of gaining evidence; having to throw it out will deter officers from engaging in illegal searches b) In addition, b/c that evidence is then tainted, it can't be used later c) If an officer doesn't care about the evidence, his supervisors will 3) Downside to the E/R a) Someone we know is a dangerous criminal will now go free "b/c the constable blundered." – says Judge Cardoza b) E/R only protects your right to be free from search/seizure if they find incriminating evidence c) judicial integrity undermined b/c (a) evidence excluded at criminal trial is admissible in civil trial (b) evidence not used b/c of a technicality 4) Is there Constitutional justification? a) E/R not a part of the 4th Amd't and not found in its history b) 4th and 5th Amd'ts no longer intimately related (Schmerber) c) Ct held in Calandra (1974) that E/R is not a Constitutional right, but a judge- made rule to enforce 4th amd 5) A "Constitutional tort" for illegal search and seizure will probably never be passed b/c a) don't want officers to put a dollar value on breaking the law b) don't want to pass laws making gov't pay $$ to a criminal sitting in jailSee policy arguments in notesC) "Standing" for E/R application: 25 1) Old E/R analysis: Two-part test to see if E/R applies a) was there a 4th Amd't violation? b) does the Δ have "standing" to assert the exclusionary rule? (a) standing in this context doesn't refer to 3rd Amd't "case or controversy" standing (b) 4 kinds: (i) target standing – if you were the target of a search, you have standing (ii) derivative standing – co-conspirator rationale (iii) ppty rights standing (iv) legitimately on the premises standing 2) Alderman v. U.S. (1969): a) This two-step standing analysis is replaced by a one-step test: "were the Δ's personal 4th Amd't rights violated?" (personal rights approach)(modern approach) b) suppression maybe successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of the evidence c) co-conspirators and co-s have no special standing 3) Rakas v. Illinois (1978; Rehnquist) a)  is passenger in car, car is illegally searched, gun found under 's seat. Standing? b) Ct rejected 's argument that he has standing b/c he was "legitimately on the premises at the time of the search" (rule from Jones, 1960) c) Ct says that in light of Alderman, the question is not whether  has standing, but whether 's personal rights were violated by the search. d) Analysis: (a) for 's personal rights to be violated, he must have had a r'ble expectation of privacy under Katz (b) Ct held  did not have a legitimate expectation of privacy as a passenger in the glove box or area under his seat e) Dissent: would uphold Jones standing, says still have an R/E/P in a car even though it is less than in your home 4) Rawlings v. Kentucky (1980) a) Police illegally search  and friend; find drugs in friend's purse;  wants to exclude b/c the drugs belong to him b) Holding: (a) the mere fact that  had a possessory right in the items seized is not by itself enough to allow  to challenge the constitutionality of the seizure (raise E/R). (b) Only if  had a R/E/P in the items seized could he have excluded those items (c) 's personal rights not violated by search of the bag, b/c once  placed the drugs in the purse, he had no further R/E/P with respect to the drugs (d) Ownership is a factor to consider in determining whether R/E/P, but not dispositive c) Rule: you can't contest a search just b/c you have a possessory interest in the items searched, but you can contest a seizure (here, seizure not unconst'l b/c drugs fell out in plain view) 5) Minnesota v. Olson (1990): In general, overnight guests have a L/E/P in host's home, so overnight guests can raise E/R. a) need an arrest warrant under Payton 6) Minnesota v. Carter (1998; Rehnquist)26 a) two guys in an apartment bagging cocaine; cop saw them doing so thru the window. L/E/P? b) CT says no: s not social, overnight guests (a) 2 1/2 hours not enough time to develop privacy interest (b) they came for he purpose of bagging cocaine - they are business guests, not social guests (c) no previous connection btwn s and owner (they paid him to let them use the place) c) Majority says no r'ble expectation of privacy if not an overnight social guest; use for temporary business purposes d) In concurrences, 5 justices say they think almost all social guests have L/E/PD) Fruits of the Poisonous Tree Exception (Derivative evidence) 1) Rule: once the original evidence (the "tree") is shown to have been unlawfully obtained, all evidence stemming from it (the "fruit" of the poisonous tree) is equally unusable. 2) Primary evidence is whatever police find immediately/directly from the constitutional violation; derivative evidence flows from the primary evidence 3) Main goal: to put the gov't in the same position it would have been in had there been no constitutional violation (not to put them in a worse position or punish them for the violation) 4) Causation analysis: a) proximate (legal) cause (a) Attenuation or Dissipation Doctrine b) cause in fact (“but for”) (a) “Independent Source” and “Inevitable Discovery” DoctrinesE) Exceptions to F/P/T 1) Independent Source a) when there is a lawful independent source, we cannot say that the officers would have not gained evidence but for the unlawful search. (a) Policy basis: don’t want to put police/state in a worse position absent illegality. b) Murray v. U.S. (1988; Scalia) (a) cops entered warehouse illegally, saw marijuana, left. They got a search warrant to search the warehouse w/ P/C based on other factors (doesn't mention prior entry). Is evidence from the second entry (marijuana) tainted fruit? (b) F/P/T requires a causation analysis: constitutional violation must have a causal connection to the evidence sought to be suppressed. (c) Causation requires (i) "but for" causation (ii) proximate cause (d) Here, it is not so that but for the illegal entry the cops would not have gotten a search warrant, b/c they had P/C independent of the illegal entry (from an "independent source") (e) Test: Ct says to show a truly independent search, officers must show: (i) Motivation of the officer to search - they had an independent motivation to seek the warrant – they would have sought it even w/o the illegal search.27 (ii) Necessary for the issuance of the W – don’t use any of the evidence from unlawful search in order to get warrant issued. (f) Reason: invoking E/R would put police (and society) in a worse place, not the same, as they were had the violation not occurred. B/c of the independent source of P/C, had the violation not occurred the cops would have still searched the warehouse and the marijuana would be admissible. (g) dissent: (i) Marshall concerned that when cops have P/C, they will do illegal, preliminary searches to see if it is worth getting a warrant (ii) wants to make the motivation test tougher – if the illegal search had turned up nothing, would they still have sought a warrant for the legal search? 2) Inevitable Discovery: Nix v. Williams (1984; Burger) a) Police violate Miranda and get  to tell where body is. Body is located in a part of scheduled search radius that cops had not yet reached. b) Issue 1: F/P/T? (a) Ct says there is a hypothetical independent source: inevitable discovery. o b/c causation and policy analyses are the same. (b) Reason: cops would have inevitably discovered the body due to the search grid, so they are not benefiting from violation c) Issue 2: What is state's burden of proof for inevitable discovery exception? (a) must prove by preponderance of the evidence that they would have found it anyway. (b) Some argue that standard should be raised to clear and convincing evidence b/c inevitability is hypothetical and we are engaging in speculation (c) Ct rejects this arg't; says raising the level of proof would be punishing the gov't for the violation d) Issue 3: Good faith requirement? (a) officers here, in bad faith, tricked  into giving up location of body (b) Ct says no good faith requirement; we don't need E/R to punish officer's bad faith violation b/c we have other remedies (e.g. police policies, § 1983 suits, etc.) e) Several circuits have placed add'l limits on inevitable discovery, but S. Ct. hasn't yet resolved (a) apply inevitable discovery only to derivative evidence (b) require that officers be in "active pursuit" of a warrant (c) bar use of inevitable discovery exception anytime ct thinks violation has been committed in order to circumvent warrant 3) Attenuation and Dissipation – proximate cause analysis a) Attenuation (a) means dissipation of the "poison" or the taint (b) to stick to the same metaphor, sometimes the tree is poisonous, but the fruit is so far removed from the tree that it is no longer poisonous (c) deals w/ proximate cause part of F/P/T analysis: sometimes there is "but for" but the violation is too far removed from the evidence to be a "proximate" cause b) Brown v. Illinois (1975; Blackmun) (a) Cops illegally arrested  (seemingly on purpose) and read him his Miranda rights before he actually confessed. Is the Miranda warning enough to dissipate the earlier violation?28 (b) Proximate cause/ attenuation analysis is a T/C test. Factors: (i) proximity in time (ii) remoteness in chain of events (iii) act of free will on 's part (iv) flagrancy of the violation (the more "poison" the longer it will take to dissipate) (v) nature of the evidence (c) Ct says taint was not dissipated: confession not remote in time from illegal arrest; Miranda warning did not break chain of events; court doesn’t want it to be a cure all – only one factor in chain of events c) U.S. v. Ceccolini (1978) (a) Cop opens envelope at place of business w/o P/C and finds evidence of gambling operation; he then gets add'l info about operation from witness. Can witness testimony be suppressed? (b) Ct says the "nature of the evidence" factor makes the difference in this case (i) Distinguishes btwn verbal evidence and physical evidence (ii) Taint dissipates faster for verbal evidence than for physical (iii) Ct more likely to find witness testimony untainted (c) Reason: a witness is more likely to come forward when it is helpful to their own accord. (d) Dissent: Marshall says reasoning is actually inevitable discovery (but-for level) rather than attenuation (proximate cause level); should only get to try attenuation if you can't show inevitable discovery d) New York v. Harris (1990) (a) Police had P/C but no arrest warrant; they arrest  in his home, which is unconstitutional under Payton. He goes down to the station and signs a written confession. Should it be suppressed? (b) Ct says no, E/R doesn't apply b/c police had P/C to arrest (c) Do not have to do attenuation analysis b/c evidence does not meet the but- for part of F/P/T analysis (a statement made outside the home is not the product of an unconstitutional entry; that is, it has not been obtained by exploitation of illegal entry) (d) Majority also says that the unconstitutional entry did not make continued custody unconstitutional: cop had P/C, so if  answered the door, cop could make lawful arrest anyway. (e) Dissent says there is a causal connection, b/c but for his arrest,  would not have confessed ?????????????F) Good Faith Exception to E/R 1) U.S. v. Leon (1984; White) a) cops got a search warrant that was valid on its face, searched 's place, found incriminating evidence. later, a judge holds that the info presented to magistrate was not enough for P/C. Can evidence be admitted? b) Rule: E/R should not be applied where officers have a good-faith, objectively r'ble belief that they have P/C, and the warrant is issued according to proper procedures c) Reasoning: (a) E/R designed to deter officers, not magistrates29 (b) magistrate, unlike cop, is neutral and detached; doesn't have incentive to violate 4th Amd't and therefore doesn't need to be deterred (c) if E/R was applied to magistrates, there is no evidence magistrates would be deterred by E/R d) test for good faith: (a) objective r'bleness test (b) totality of the circumstances test (c) would a r'bly well-trained officer have thought the warrant was reliable? e) exceptions that clearly fail this test (a) when officer says something false or w/ reckless disregard for its truth or falsity to mislead magistrate (b) magistrate wholly abandons his judicial role (makes no r'ble effort to determine probable cause) and it is clear to the officer that he's abandoned it (c) warrant is lacking indicia of probable cause (d) warrant is facially deficient 2) Massachusetts v. Sheppard (1984; White) a) same facts as Leon except instead of not enough for P/C, the warrant was later determined to not meet the 4th Amd't particularity requirement (a) used wrong warrant form; magistrate said he’d fix it, but never did b) Ct says good faith exception applies; though facially deficient warrant, there was a meeting of the minds b/w officer and magistrate 3) Krull and Evans – applies good faith exceptions for officers’ reasonable reliance on determinations made by legislators and court clerks respectively. a) legislators – police rely on statute authorizing search that turns out to be unconstitutional b) court clerks – arresting someone b/c officer thinks they are subject to arrest b/c record implied by clerk shows outstanding warrants. Police relied on clerk’s mistake. 4) Dissent to Good Faith Exception a) deterrent effect on future conduct of individual officers whose evidence has been suppressed is only one minor part of generally acknowledged deterrent purposes of E/R b) deterrent rationale is not to "punish" individual officers; it is to promote institutional compliance w/ 4th Amd't requirements c) if evidence is consistently excluded in these circumstances, police departments will be prompted to instruct officers to (a) devote greater care to providing sufficient info when applying for warrant (b) review w/ some attention the form of the warrant they have been issuedG) Impeachment Exception to E/R 1) evidence that might otherwise be excluded can be introduced to impeach a witness (to prove that the witness is lying on the stand) 2) must be introduced with a limiting instruction to jury: evidence can't be used as evidence of substantive guilt 3) Harris (1971) – expanded impeachment exception to both collateral and charged crimes a) Reason – ER is not a license for perjury 4) U.S. v. Havens – particular statement that could be impeached, but must have been raised on direct examination; not cross examination. a) Policy – concern that you want D to have control of impeachment decision; don’t want prosecution to smuggle evidence in.30 b) Partial Expansion by Court: can impeach if first made on direct or cross examination as long as cross examination is w/in scope of issues raised on direct examination. (a) concern over chilling effect on testifying Ds (b) who actually controls impeachment? c) James (1990) – impeachment exception does not extend to all defense witnesses; stick to Walden requirement that only allows for impeachment of D himself.H) Scope of ER 1) generally does not apply in civil suits 2) in criminal proceedings, does not apply in pretrial proceedings 3) does not apply in sentencing, probation, or parole proceedingsVIII) CONFESSION/INTERROGATION – DUE PROCESS OF LAWA) In general 1) value of confessions a) efficient crime control b) "good for the soul" says Nowlin 2) concerns re: interrogation a) confession might be in some sense involuntary b) confession might be false b/c of coercion c) possible human rights violations d) inconsistent w/ adversarial process of justiceB) T/C "Voluntariness" test 1) Origins a) now routinely called the due process test; used to be called 5th Amd't or 14th Amd't test b) Brand (1897): S. Ct. held that C/L rule (involuntary evidence is unreliable) is part of 5th Amd't right against self-incrimination c) Brown v. Mississippi (1936): C/L rule is part of 14th Amd't DPC (this was before 5th Amd't was incorporated to the state) d) Voluntariness test has already been addressed in area of consent searches 2) Ashcraft v. Tennessee (1944; Black) a) Ashcraft arrested and taken into custody; subjected to 36 hours straight of tag- team interrogation, after which he confesses b) Ct did not really apply T/C test; instead, they say if he had confessed, it could not possibly be voluntary b/c 36 hours is too much (a) even though TOC test; one factor can overwhelm the others (b) 36 hours of relay interrogation where D is held in isolation overwhelms other factors c) Jackson's dissent (a) Federalism suggest we should give greater deference to state agents and state cts when applying T/C (b) this does not even look like T/C but a per se rule...what about 30 hours, or 24 hours, etc.? 3) Spano v. New York (1959; Warren) a) cops make up a psychological ploy to get Spano to confess b/c he has known psychiatric/emotional disorder: cop who is a childhood friend of his lies and guilt trips him into confession; interrogation lasts about 8 hours31 b) Ct says involuntary under TOC:  asked for counsel, had no past history, cops tricked him c) Ct recognizes that it is getting harder to apply T/C b/c sophisticated police are using subtle psychological interrogation techniques. d) This recognized problem leads to Miranda requirement (1966) and the right to counsel doctrine (1960s), which add layers of protection to the core voluntariness test. Voluntariness test used when these two don't apply or have been satisfied by police. 4) Johnson v. Deano – judge has to apply test; if he determines involuntary, he must exclude it – decision not up to jury unless he determines it is voluntary 5) Colorado v. Connelly (1986; Rehnquist) a) involuntariness not completely about volition of individual; requires police overreaching (the only thing that can now prevent a confession from being voluntary is police coercion) b) Thus neither coercion by non-gov't personnel, nor serious mental illness on suspect's part is relevant to voluntariness question 6) What qualifies as police coercion/ disrupts T/C? a) force b) threat of force c) application of psychological pressure (if it's too much) d) promises of leniency (factor) (a) general stmts about how the legal system work are not coercion, but outright lies are e) threats of harsher punishment (factor) f) must have standing g) full F/P/T applies h) no impeachment exception b/c coerced statements are taken as untrustworthy 7) Mincey v. Arizona (1978) a) guy in intensive care being interrogated b) Ct says statement is involuntary, E/R applies (a)  repeatedly expressed his wish not to be interrogated (b)  was weakened by pain and shock (c)  was isolated from family, friends and legal counsel (d)  was barely conscious at the time c) Reason: interrogation not Constitutional violation, but can't use that statements in evidence b/c that would be a Constitutional violation 8) Chavez v. Martinez (2003) a) No right against coercive police interrogations; test determines when statements are included not a restriction of police interrogation practices b) uses Rochin (1952) "shocks the conscience" test: Convictions based on evidence obtained by methods that are "so brutal and so offensive to human dignity" that they "shoc[k] the conscience" violate the Due Process Clause.C) Miranda 1) Miranda v. Arizona (1966; Warren) a) Rule: In both state and federal courts, a confession may be introduced against the person who made it only if the confession was voluntary and was obtained in conformity with the Miranda decision b) for Miranda to apply, person must be in custody and subject to interrogation (a) there is an irrebuttable presumption that a statement taken from that coercive atmosphere was taken involuntarily32 (b) to dispel the coercive atmosphere, give the Miranda warning. Dispels coercive atmosphere by telling you the police plan to honor your rights c) Miranda warning must include: (a) you have a right to remain silent (b) anything you say can and will be used against you (c) you have a right to counsel (d) if you can't afford counsel, one will be appointed for you d) Reason for Miranda warnings: (a) right to silent: lets  know that he, not the officer, is in control of the interrogation (b) use of your statements: in our adversarial system, gives  fair warning (c) right to counsel: many s find this to be an extremely coercive situation where they feel they need help, and this tells them they can have it (d) appointment: simply being told he has a right to counsel will be of no benefit to  if he can't afford one e) Is Miranda warning a constitutional right? (a) Ct 5-4 for yes on this issue in Miranda (i) yes:  a statement made in this coercive atmosphere is presumptively involuntary and will be excluded (w/o Miranda warnings)  Miranda warnings are a constitutional right to dispel this involuntariness  some subtle psychological interrogation techniques can't be weeded out thru T/C test (ii) no:  cops may lie about giving warnings  interrogation atmosphere is supposed to be at least somewhat coercive  T/C test sufficient to sift out undue pressure 2) NY v. Quarles (1984) a) woman says she was raped and identifies her rapist in a grocery store; she tells police he has a gun. Police accost him and he runs toward the back of the store, where he is caught and handcuffed. b) officer, w/o giving  Miranda warnings, asks him whether he has a gun and where it is;  says "over there." 's statement and the gun are introduced against him at trial c) Holding: even though  was in custody and was under interrogation at the time of his statement, he was not entitled to Miranda warnings b/c the police questioning was motivated by a need to protect the public safety d) Rule: "public safety exception:" Miranda warnings are unnecessary where the questioning is r'bly prompted by a concern for the public safety (a) r'ble person std: was officer r'bly concerned about public safety? (b) balance btwn Miranda and public safety 3) Dickerson v. U.S. (2000) a) Congress provided in the fed'l Safe Street Act that Miranda warnings are not required in certain circumstances b) Ct held 7-2 that Miranda is a const'l requirement that can't be abrogated by CongressD) Custody: 33 1) Miranda warnings must be given only when police questioning occurs while suspect is in custody a) full custodial arrest or its equivalent b) not custody: Terry stops, ordinary traffic stops 2) Berkemer v. McCarty (1984) – not enough coercion involved in low level seizures to trigger Miranda warnings; coercion is not presumed and therefore statements taken are not presumed invalid. a) key is duration and level of intensity; dividing line = different quantums of suspicion 3) Oregon v. Mathiason (1977): a suspect who voluntarily comes to the police station in response to a police request is ordinarily not in custody and therefore not entitled to Miranda warningsE) Interrogation 1) a volunteered statement is not covered by Miranda; if a suspect, w/o being questioned, spontaneously makes a statement, it does not need Miranda (includes voluntary statements made while  is in custody) 2) Rhode Island v. Innis (1980) a)  was arrested for murder committed w/ a sawed-off shotgun, which has not been found. While  is being transported past crime scene, cops say to each other (not to ) that there was a school for handicapped children nearby, and how awful it would be if a little handicapped child found the gun and hurt herself. b)  told cops to turn car around and he led them to the gun c) "Interrogation: for Miranda purposes will be deemed to occur whenever a person in custody is subjected to either express questioning or words or actions on the part of the police that the police should know are r'bly likely to elicit an incriminating response from the suspect (a) test for eliciting a response = reasonable officer d) Held: this was not an interrogation b/c not r'bly likely to elicit a response 3) Illinois v. Perkins (1990) a)  is in prison and tells cell mate about a murder he committed. Undercover cop goes into jail along w/ former cell mate: they talk about a possible jail break and cop asks  if he's ever killed anyone, in case they have to kill during the escape b) Holding: one consequence of the r'ble suspect rule is that if  talks to an undercover agent or to a gov't informant, and  does not know he is talking to a law enforcement officer, no "custodial interrogation" has taken place. This is true even if  is in jail c) Reasoning: if coercive atmosphere is not created then it doesn't have to be dispelled; suspect thought he was talking to fellow inmate – to hold otherwise would prevent any undercover police work 4) Arizona v. Fulminante (1991) a)  rumored to be a child killer; undercover cop in prison offers protection from other inmates if  will tell him the truth b) Ct says 5-4 that the confession was not voluntary b/c the officer induced the statement by motivation of physical threat c) still doesn't matter that  didn't know he was talking to a copF) Waiver 1) In general34 a) after being Mirandized, a suspect may waive his right to counsel and/or his right to remain silent; waiver may be express or implied b) express waiver: (a) normally, a writing signed by the suspect, can be verbal (b) as long as  is induced to sign the waiver w/o coercion or trickery, no legal problems should arise c) implied waiver (a)  does not expressly state that he is waiving his rights, but his words or conduct suggest that he has decided to relinquish those rights (b) cts scrutinize an alleged implied waiver far more carefully than an express waiver (i) burden of proof: prosecution must show by preponderance of the evidence that the waiver was a "knowing" one; that is , that  was aware of his Miranda rights and of his right to refuse to waive them (ii) the accused's silence after being read his Miranda warnings will never by itself be sufficient to demonstrate a waiver 2) N.C. v. Butler (1979) a) the suspect's refusal to sign a written waiver form does not automatically negate his waiver of Miranda rights b) here,  said he would talk but not sign: Ct said this was an implied waiver of right to silence c) there was no express verbal waiver to the right to counsel; Ct says an express specific waiver is not required for both 3) Zerbst waiver test: Modern Approach to dispel Miranda Rights a) Knowing and intelligent b) Voluntary - TOC 4) Colorado v. Spring (1987) - the police have no obligation to accurately notify  of the charges against him, or of the matters to which the interrogation will pertain 5) Moran v. Burbine (1986): where a lawyer has been retained by the suspect's family, the suspect's waiver of his Miranda rights (and consequent failure to consult w/ the lawyer) will be effective regardless if notification of attorney is given 6) Colorado v. Connelly (1986) - where a suspect's waiver is caused in major part by 's mental illness, this does not make any difference as long as not coerced (meets Zebst test)G) Invocation of Protections 1) Michigan v. Mosely (1975) (a) When  invokes right to remain silent, "the interrogation must cease." (Miranda) (i) the test for whether the invocation is gone for the 2d interrogation (and thus whether the statements made therein are admissible) is whether 's right to cut off questioning was "scrupulously honored" (ii) if police scrupulously honor 's rights, he will then have to meet the Zerbst test by re-Mirandizing; the S/H test communicates to the individual that his rights are going to be honored (b) when the 2d interrogation is about a different crime, and the police give new Miranda warnings prior to the 2d interrogation, a waiver given by the suspect is likely valid, despite his insistence on remaining silent at the first interrogation 2) Edwards v. Arizona (1981)35 (a)  was arrested and Mirandized, he says "I want a lawyer." The police don't get him a lawyer. Two days later, the cops ask him a question and he responds. (b) Edwards Rule: an accused, having expressed his desire to deal w/ the police only thru counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused himself initiates further communication w/ the police (c) Held: 's response was not admissible; the mere fact that  responds to later police questioning will not mean that  has waived his previously- expressed desire for a lawyer 3) Davis v. U.S. (1994) (a) the bright line Edwards rule only applies where the suspect clearly asserts his right to have counsel present during a custodial interrogation (b) if the suspect makes an ambiguous request – one which a r'ble observer would think might or might not be a request for counsel – the questioning does not have to stop (c) in fact, the police do not even have to ask clarifying questions in order to determine whether the suspect really does want a lawyer (d) reasoning: if  wants an atty, it is not a big burden for him to make a clear statement that he wants one. Additionally, by clarifying, the police may be signaling  to get an atty. Ct wants to put as little restraint as possible on crime control. 4) Minnick v. Mississippi (1990) (a) if the suspect asks for a lawyer, consults w/ the lawyer, and is subsequently questioned by police outside the lawyer's presence, this questioning violates the Edwards bright line rule (b) Ct says: the lawyer must be present during the subsequent questioning; allowing  a mere consultation before the questioning will be no substitute for this. 5) Arizona v. Roberson (1988): Edwards rule applies even where police subsequently wish to question  about a different crime than the one they were questioning him about when he first requested a lawyer (no different crime exception) 6) Note: the current S. Ct. Justices don't like Miranda and don't want to expand it. Two grounds for disliking Miranda: a) Miranda is a prophylactic judge-made rule b) Miranda makes it more difficult for police and the crime control model (as opposed to the due process model) 7) Bradshaw – what constitutes initiation? a) willingness and desire for a generalized discussion about the investigation b) interpreted broadlyH) Other Miranda Thoughts 1) personal rights – “standing” 2) is an ER – core right is exclusion of evidence; not freedom of interrogation 3) Exceptions: impeachment, public safety 4) No FPT effect at all – derivative evidence won’t be suppressed; only original statements are excluded I) 6th Amd't Right to Counsel36 1) 5th Amd't (Miranda) right to counsel during interrogation v. 6th Amd't right to counsel during interrogation: different policy basis a) 5th Amd't protects right to be free from self-incrimination at trial (a) a guilty  faces a cruel "trilemma:" (i) if guilty and lies, perjury (ii) if silent, can lead to contempt (iii) to tell the truth is to admit to guilt (b) interrogation concern: coerced statements are inherently unreliable (c) Miranda has meshed these two policy concerns together b) 6th Amd't protects the right to counsel at trial (a)  needs a legal expert to provide him w/ guidance through the legal system (b) there must be an advocate for 's side (c) our adversarial system would not work w/o the expert and advocate c) Why extend this 6th Amd't right to the pre-trial interrogation stage? (a) we still need an expert and advocate at the pre-trial stage to serve as a go- btwn and buffer zone, btwn the criminal  and the state (b) 5th Amd't counsel is really about coercion and alleviating that coercion: it is a "cry for help" (c) 6th Amd't counsel is not really about coercion: it is mostly about preventing a criminal  from saying something stupid 2) Massiah v. U.S. (1966) a) after commencement of formal judicial proceedings, police are barred from interrogation w/o 's counsel present b) reasoning: once judicial proceedings have begun, 6th Amd't attaches;  has a right to counsel at all times c) judicial proceedings typically commence when  is formally charged w/ a crime d)  can waive this right under Zerbst e) if police circumvent the lawyer, they can't use the evidence obtained against  in court 3) Brewer v. Williams (1977) a) same  and facts as Nix v. Williams, supra b) after indictment (under 6th Amd't), interrogation means "deliberate elicitation" 4) Kuhlmann v. Wilson (1986): meaning of "deliberate elicitation" a) passive listening or "keeping your ears open" is ok b) elicitation of incriminating testimony requires some act beyond passive listening 5) U.S. v. Henry (1980): meaning of "deliberate" a) deliberate means "not accidental" b) also extends to recklessness on the part of the state c) if a state sets up a situation the state knows is likely to elicit incriminating info, that elicitation is deliberate as well 6) Patterson v. Illinois (1988) a) Miranda warnings followed by Zerbst waiver is sufficient to est. waiver under 6th Amd't right to counsel b) knowing and intelligent requires that cops inform  if his family, etc. has retained a lawyer (contrast w/ Moran) 7) Texas v. Cobb (2001) a)  commits 3 crimes and is only indicted for one; police question him about the other two and use it against him b) Ct says this is ok: reaffirms that 6th Amd't is offense-specific ('s 6th Amd't right to counsel attaches only to charged offenses)37 c) how do we know if an offense is separate and uncharged or actually part of a charged offense? (a) 5 justices apply the Blockburger rule: two crimes are the same crime if they have the same statutory elements or if one crime is a lesser, included offense of the other (b) 4 justices want an exception for uncharged crimes that are "factually related" to a charged offense 8) Michigan v. Jackson (1986): Jackson rule is the 6th Amd't parallel to 5th Amd't Edwards rule: 's 6th Amd't right to counsel, once invoked, can't be waived by anything less than a conversation initiated by 38

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