Criminal Procedure Outline

I. Overview A. 4th Amendment i. Was there a search or seizure? ii. Was the seizure reasonable? iii. Should the evidence be excluded? B. Substantive due process C. 5th Amendment 1. Miranda D. 6th Amendment E. Overarching policy concerns 1. Tension between solving/preventing crimes and procedure to guarantee fundamental rights (liberty, privacy, human dignity) i. Inherent mistrust for those with power/authority ii. Fairness iii. Efficiency iv. Justice v. Accuracy 2. Bright line rules vs case-by-case adjudication 3. Subjectivity vs objectivity 4TH AMENDMENT II. Introduction A. Text 1. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized 2. Reasonableness clause = first half of text 3. Warrant clause = second half of text 4. People = class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community 5. Text does not provide a remedy for violations B. ***Only applies to governmental action, not private ones*** C. The court has struggled greatly over the year to determine which clause controls, the warrant or the reasonableness Was there a search? A. Pre-Katz law - property theory (Olmstead) 1. A search occurs only when there has been a physical intrusion (trespass) of tangible property B. Katz Rule 1. A search occurs when i. The person exhibits a subjective expectation of privacy in the searched area, AND

III.

ii. Society recognizes that expectation as reasonable (objective) a. Item "exposed to public" does not have a reasonable expectation of privacy 2. Reasoning i. 4th amendment protects, people, not places--text grants people right to be secure in their persons ii. Privacy theory replaces property theory C. Electronic surveillance 1. Phone booths i. By shutting the door to the booth, Katz created a temporary private place and had a reasonable expectation of privacy in his conversation (Katz) 2. Bugged informants i. No objective expectation of privacy of information given to bugged informant (White) a. No different than if informant went and told police directly--this is just more reliable 1. However, removes candid nature of conversations b. Same rule for undercover officers through Lopez c. Use of technology here did not implicate a privacy invasion 3. Tracking devices i. Tracking device used to determine location has no expectation of privacy if the location is exposed to public - Knotts ii. Device used to determine location inside home does have an objective expectation of privacy - Karo a. The home enjoys much greater protections 4. Technology in general i. Any information obtained by a sense enhancing tech regarding the interior of the home that could not have otherwise be obtained without phyiscal intrusion into a constitutionally protected area where the technology is not in general public use a. Policy reasoning is that as technology becomes more advanced, 4th amendment protects will become meaningless ii. Thermal imaging scanner used to detect heat from suspected marijuana plants was a search - Kyllo a. Although scan was taken from a public place, it registered information from within the home 1. Although this can be seen as a pen register-like case because it only recorded the means and not the substance b. Dissent argues that there is a difference between off-the-wall and throughthe-wall surveillance iii. Commercial spaces a. Less protection given than for homes - Dow Chemicals D. 3rd party risk 1. False friends i. No objective expectation of privacy of information given to police informant (Hoffa - from White)

IV.

ii. No objective expectation of privacy of information given to undercover officer (Lewis - from White) 2. Information given to a company i. List of phone numbers dialed from person's home have no expectation of privacy because person exposed information to a third party (Smith v Maryland) a. Subjective prong - pen register was placed by police at telephone company, not in the home b. Objective prong - pen register recording only numbers dialed, not communication itself (mode of communication v substance of communication) E. Dog sniffing 1. Allowing a dog to sniff the exterior of an item in a public place is not a search - Place i. Contents not exposed to public so less invasive ii. Dogs only detect the presence of illegal contraband iii. People have no expectation of privacy of contraband in public F. Open fields 1. An entry into an unoccupied or developed area outside the curtilage of a home is not a search i. Intimate acts not done here ii. Text of the 4th amendment protects houses and effects; open fields are neither iii. Area is open to view by the public, so no expectation of privacy 2. A violation of the law (trespassing) does not create an expectation of privacy G. Curtilage 1. The land immediately surrounding and associated with the home is protected by the 4th amendment i. Factors to consider is determining what is curtilage a. proximity of the area to the home b. whether the area is included within an enclosure surrounding the home c. the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by 2. No search when police view curtilage from plane (in public airspace at legal altitude) with naked eye - California v Ciraola i. unreasonable expectation that people flying over would not look down H. Garbage cans 1. Garbage cans left on the sidewalk was not in an open field, outside curtilage but near a house 2. No search because not objectively reasonable that people could go through it - CA v Greenwood I. Squeezing luggage in public 1. Tactile nature of the action made it a search - Bond i. Expectation that people will not feel the luggage. No expectation that people will not look at the luggage Was there a seizure? A. Seizure of property 1. Rule

A meaningful interference with an individual's possessory interest in that privacy - Karo ii. possessory interests include right to possess, use, sell, destroy, etc--bundle of sticks 2. Tracking device put on barrel sold to person was not a seizure because it did not interfere with a meaningful possessory interest 3. What can be seized i. contraband ii. fruits of a crime iii. instrumentalities used in the commission of an offense B. Seizure of persons 1. Structure i. Was there a seizure? ii. Limited or full? iii. Reasonable? 2. Two seizure methods i. A seizure occurs only when (Terry) a. In view of all of the circumstances (subjective) surrounding the incident, a reasonable person (objective) would believe that he was not free to leave (Mendenhall) 1. Can be by physical force or show of authority 2. Consider i. Uniforms ii. Guns iii. physical touching iv. harsh language v. summoning person to them ii. Seizure also can occur when officer uses physical force or submission to assertion of authority that restrains the liberty of a citizen a. In show of authority cases, seizure only occurs when person submits to the assertion of authority (Hodari) b. Officer yelling "stop in the name of the law!" while perp flees is not a seizure or an arrest (Hordari) 1. Not a seizure until police tackled perp because he did not comply with the show of authority 3. If there is no seizure, then incident is just an encounter and not protected by the 4th amendment 4. Limited seizure ***Use reasonableness clause analysis*** i. A limited seizure, or "stop," is distinguished from a full seizure or arrest because it involves a lesser invasion of privacy a. Look at 1. Length of detention 2. Forcible movement of suspect ii. Terry Doctrine a. Background

i.

1. Terry v Ohio shifted the analytical framework of the 4th amendment from the warrant clause to the reasonableness clause 2. Old framework - PC + warrant = reasonable search 3. New framework - reasonableness = PC 4. Reasonableness requires the balancing of state and individual interests i. Government interests a. Crime prevention and detection (seizure) b. Protection of officer (when dealing with weapons)(search) ii. Individual interests a. Possessory interest to move about as they please b. Privacy b. Tests 1. Officer may conduct a Terry Stop if he has reasonable suspicion of criminal conduct 2. Officer may conduct a Terry Pat Down if he has reasonable suspicion that person is armed and dangerous 3. Reasonable suspicion analysis of search/seizure i. Were the officer's actions justified at its inception, AND a. Why did officer stop person? b. Officer must be able to point to specific and articulable facts of criminal activity and/or being armed and dangerous ii. was it reasonably related in scope to the circumstances a. Was the search related to the reason for the stop? 4. Considerations i. Scope of search a. No more than is necessary to discovery weapons ii. Rationale a. Protection of police and others nearby c. Reasonable suspicion (RAS) 1. Reasonable suspicion = lower standard than probable cause 2. Objective in nature i. Whether a reasonable person with his/her experience would have the suspicion 3. police officer must be able to point to specific and articulable facts of criminal activity/armed and dangerous 4. Application to Informants i. Requires a. Lower quantity of proof than PC b. Lower reliability of proof than PC ii. Anonymous tip that correctly predicted car person would leave in, time they would leave, and route they would take

sufficient corroboration for RAS and car stop (Alabama v White) iii. Predictive information key for anonymous tips 5. RAS considerations i. Stop in a high crime area (Illinois v Wardlow) ii. Unprovoked flight upon noticing police (Illinois v Wardlow) a. Different than refusing to cooperate--not simply going about ones business iii. Nervous, evasive behavior d. Seizure by questioning 1. No seizure when police at airport asked for and took Ds ID and ticket but seizure occurred when they asked him to accompany him to a room for a search (Florida v Royner) 2. Just asking questions or asking for ID usually won't be a seizure e. Terry stop can become de-facto arrest depending on the 1. Length of the stop i. No bright line rule ii. Must examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the person a. Holding smuggling suspect (drugs in butt) for 20+ hours until she defecated still a limited seizure because she refused the more expedient method (Xray) 2. Forcible movement of the suspect i. e.g. to another location 3. Were there less intrusive means of conducting investigation? i. Detaining man suspected of smuggling in a room and searching his luggage not least intrusive means because cops could have used dog sniffing (Florida v Royner) f. Vehicle rule 1. When officer stops a vehicle, they may order the driver and passengers to step outside the vehicle 2. Rationale i. Exiting the car is a de minimis intrusion vs the weighty concern of officer safety (Pennsylvania v Mimms) iii. Bus limited seizures a. Seizure occurs when a reasonable person would not feel free to decline the officers' requests or otherwise terminate the encounter 1. Noteworthy factors i. Officer used gun in a threatening way ii. Officer advised person that consent could be refused

2. No limited seizure (only an encounter) when one officer stayed at the front of the bus while other officer walked up and down aisle request consent to search luggage (Drayton) i. No inherent coercion in police-citizen interaction ii. Citizens usually happy to let luggage be searched because it protects their safety 5. Full seizure i. ***Use warrant clause analysis*** ii. Situations a. Arrest 1. Definitions of arrest vary by jurisdictions i. Usually when person is restrained for an indefinite amount of time b. Arrest-like seizure 1. Limited seizure exceeds scope of the stop i. amount of restraint ii. length of seizure iii. scope of the search 6. Pretexual stops i. Detailed and complex nature of traffic laws does raise a great enough concern that police will make pretexual stops based on these laws a. Adding a subjective test to determine if stop was pretexual is not a proper response for racial profiling/discrimination--equal protection is 1. Subjective test is not appropriate because officer intent plays no part in PC Was the search reasonable? A. Generally 1. In order for a search or seizure to be reasonable, there must be probable cause i. By the magistrate for issuing the warrant, or ii. By the police officer for conducting a warrantless search/seizure 2. Probable cause to arrest i. Where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an officer has been or is being committed by the person to be arrested 3. Probable cause to search i. Where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence subject to seizure will be found in the place to be searched B. Probable cause 1. Using information from hearsay informants to obtain search warrant i. Old test - Auguilar/Spinelli a. Affidavit must show 1. Basis of knowledge, AND

V.

i. How the informant came across the information ii. If not available, this element can be satisfied through "self verifying detail" a. informant must give information in specific detail to prove that he is relying on substantial information b. Usually gives details of criminal activity 2. Veracity - why the informant should be believed i. Credibility, OR a. Informant is a person with high honesty and integrity ii. Reliability a. Informant has a past pattern of providing correct information b. Exception - corroboration (can overcome one or both prongs) 1. PC exists if police corroborate enough specific, predictive information i. Information given is usually not indicative of criminal activity on its face but correctly predicts future events ii. PC existed because police corroborated man' arrival on a specific date, dressed a certain way, walking a certain way, and carrying a briefcase (Draper in Spinelli) ii. New test - Illinois v Gates a. Overruled Auguilar/Spinelli b. Totality of the circumstances test 1. Given all the circumstances (including basis of knowledge, reliability, and credibility), there is fair probability that contraband or evidence of a crime will be found in a particular place c. Policy 1. Test reflects the more fluid nature of probable cause 2. extreme evidence of one prong can overcome a deficient prong 3. Relies more on common sense C. Search warrants 1. To be valid, search warrant must be properly issued and executed 2. Issuance i. Probable cause a. That the item to be seized is at the place to be searched ii. Particularity a. Of place to be searched AND b. Persons or things to be seized c. Policy 1. Law disapproves of general warrants because it opens the door for abuse iii. Supported by a an oath or affirmation a. By the government agent seeking the warrant iv. Decided by a neutral and detached magistrate

a. The more integrated the magistrate is in the investigation, the less likely he is able to be neutral and detached 3. Execution i. Knock-and-announce rule a. Requires police to knock, announce their presence, request entry, and wait an appropriate amount of before entry b. Execution without knock and announce 1. Courts decide on a case-by-case basis whether police are allowed to dispense with the requirement if there is i. Reasonable suspicion that knock would be dangerous or futile, OR ii. Reasonable suspicion that it would allow for the destruction of evidence 2. Magistrate can dispense of knock requirement on issuing the warrant or police can decide when executing c. Purpose of rule 1. Protect life and limb 2. Protection of property 3. Protection of privacy and dignity ii. Searching persons during the execution of the warrant a. Police must have independent PC to search a person AND a justification for a warrantless search iii. Seizure of persons during warranted searches a. Search warrant carries with it the limited authority to detain the occupants of the premises while a proper search is conducted b. Policy 1. To protect officer safety D. Arrest warrants 1. Custodial arrest must be founded on probable cause 2. Arrest in public i. No warrant required, even if it is practicable to secure a warrant a. No privacy interfered with because in public 3. Arrest in home i. Needs one of the following a. Arrest warrant 1. Arrest in the home is presumptively unreasonable because of the privacy guarantees given to the home 2. Must be reason to believe the suspect is home b. Exigent circumstances (must be an element of immediacy) 1. Hot pursuit of a fleeing felon i. Pursuit of a felon (at least PC) that starts in a public place allows for warrantless entry of home (Santana) 2. Police have reasonable cause to believe if they do not immediately enter, one of the following situations will occur i. imminent destruction of evidence

ii. need to prevent suspects escape iii. risk of danger to the police or to other persons inside or outside the dwelling c. Consent ii. Extra protections for the home - a man's home is his castle 4. Arrest in third person's home i. Arrest warrant does not adequately protect third person's right to privacy in their home ii. Search warrant needed to protect in addition to arrest warrant E. Warrant Exceptions 1. Framework for crafting a warrant exception i. Rational ii. Showing iii. Scope 2. Exigency i. Warrantless entry into home (see above) 3. Search incident to lawful arrest (SILA) i. No search warrant is required for search incident to a full custodial arrest of (Chimel) a. Person b. Area within the suspects immediate control 1. Factors to consider i. Whether the perp is handcuffed ii. Physical characteristics of perp iii. Police to perp ratio iv. Whether item reasonably accessible to perp 2. Passenger compartment search i. Old law (Belton) a. When lawful custodial arrest made of a car occupant, police may contemporaneously search passenger compartment 1. Police may also perform a passenger compartment search of a recent occupant 2. Perp arrested after leaving car, arrested, place in police car, then search was conducted (Thornton) b. Police may also search open or closed containers in the passenger compartment c. Rationale 1. Passenger compartment is almost always within the grab area of a car occupant arrestee ii. Current law (Arizona v Gant overruling Belton/Thornton cases), a. Search allow when

1. arrestee is within reaching distance of the passenger compartment at the time of the search, OR 2. It is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle b. Policy 1. Court turning away from warrant clause and toward reasonableness clause ii. Search must be done contemporaneously with the arrest iii. Dual policy rational a. Police protection 1. Could grab for gun b. Prevent destruction of evidence by arrestee iv. This is a per se rule so once there is a lawful arrest, police can conduct these searches a. Police need no reason to believe that something will be discovered b. The criticism is that facts of the case are not considered c. Cops could use arrest as pretext for searches v. Protective sweep a. Definition 1. A quick limited search of premises, incident to arrest and conducted to protect the safety of police officers or others b. Rules 1. No RAS or PC needed to search area immediately ajoining the place of arrest incident to the arrest i. Immediately ajoining = places where attack could be immediately launched ii. Search = brief, cursory search to dispel reasonable suspicion of danger 2. Search outside immediately ajoining area requires RAS c. Justifications 1. Officer safety - expansion of Terry d. Reasonableness balancing 1. Risk of danger to officers high and outweighs additional intrusion vi. This exception relies on the warrant clause a. If there is going to be a warrantless search or seizure, there must be a well crafted exception vii. Justifications for exception do not hold up for a search incident to a lawful citation (Knowles v Iowa) a. lesser threat to officer safety b. no evidence considerations viii. Can search for arrest for a misdemeanor (Atwater) a. Officer may not be able to tell if offense is a misdemeanor or a felony--not good for a bright-line rule

4. Car Search warrant exception i. Searches on the scene a. Police with probable cause that car contains contraband, or evidence of a crime may conduct an immediate warrantless search of a car if 1. The car is stopped on the highway (Carroll/Chamber), i. Car is moveable ii. Occupants are alerted iii. Car may never be found again 2. The vehicle is readily capable of use on the highway, AND is found in a setting that objectively indicates that vehicle is being used for transportation, AND is discovered stationary in a place not regularly used for residential purposes (Carney) i. Mobile home subject to car search exception a. application of exception doesn't turn on other possible uses of vehicle--would be too difficult to apply ii. Searches away from the scene a. If warrantless search would be valid on the scene (see above), then police may seize car, move it, and conduct a warrantless search (Chambers) 1. Search must be done at the latest within a couple days of the seizure (Coolidge) 2. Rationale i. Search on the scene is no more invasive than seizure and later search ii. But what about allowing a detached magistrate to determine if there actually is PC? iii. Framework a. Rationale 1. Mobility - car is mobile and more likely to be moved out of the jurisdiction or hidden 2. Decreased privacy interest of car - cars driven on public roads and subject to pervasive government regulation b. Showing 1. PC to search the car c. Scope 1. Evidence discovered while conducting reasonable search for fruits of the probable cause iv. Difference from SILA a. Search is not based on arrest, but on PC of evidence in the car b. Can search all areas of car where it is reasonable that sought out evidence could be found v. Containers a. Old law 1. Containers coincidentally in cars (Chadwick-Sanders)

When police had PC to search a car, could search and seize containers 2. Cars with coincidental containers (Carroll-Chambers-Carney-Ross) i. When police had PC to search a specific container coincidentally found in a car, could search car and seize container without a warrant but need a warrant to open it 3. Resolution of old laws needed because it ended up granting less privacy protection i. Police with PC to search a container will say they have PC to search entire car to avoid obtaining a search warrant b. Current law 1. Police can search a car and the containers within where they have probable cause to believe where the evidence is hidden (Acevedo) i. Can't search whole car when there is only PC that item is in the trunk ii. Remoteness can be an issue 5. Automobile inventory search exception i. Searches of vehicles upon impounding do not require PC or a warrant a. Court focused on reasonableness clause and balance ii. Purpose a. protection of owner's property b. protection of police against false claims of theft c. protection of polce from potential danger iii. Police must follow standard procedure in conducting the search 6. Arrest inventory search i. arrestee searched before being incarcerated (even temporarily) without a warrant or PC ii. Purposes a. Prevent theft of arrestees valuables in jail b. Prevent false claims of theft by arrestee c. Keep weapons and contraband out of jails 7. Plain view and touch doctrine i. ***This exception is a seizure doctrine, not a search doctrine*** ii. Generally a. An object of an incriminating nature may be seized without a warrant if it is in plain view of a police officer lawfully present at the scene b. If item is in plain view, neither its observation nor its seizure would involve any invasion of privacy iii. Framework a. Rationale 1. Destruction of evidence b. Showing 1. see elements, below c. Scope

i.

1. Whatever is found in the midst of searching for the evidence which they have PC i. Once the legitimate purpose for the search has ended, subsequent seizure is outside the scope iv. Elements a. Officer observes it from a lawful vantage point 1. Officer did not violate the 4th amendment in arriving at the place from which the evidence could be plainly viewed 2. 4 possibilities i. discovered during execution of valid search warrant ii. discovered during execution in-home arrest pursuant to arrest warrant iii. discovered during warrant exception search iv. discovered during an activity that does not constitute a search b. Officer has a right of physical access to it 1. Officer needs an independent 4th amendment justification to gain physical access to viewed item i. Example - Officer who sees weed plant in the window of a home cannot enter to seize plant without a warrant or exception c. Incriminating nature of evidence is immediately apparent 1. Must be PC that the item is stolen, illegal, etc i. PC did not exist when officers entered home to look for shooters and victims and saw an expensive stereo that "looked" stolen. Officer had to "search" the stereo (turn it over to find its serial number) to determine that is was stolen. (Arizona v Hicks) v. Inadvertence of discovery (subjective belief of officer) is no longer necessary (Horton) a. Court prefers objective standards of conduct b. Particularity of search warrant and limited scope of exigency adequately protects privacy interests vi. Plain touch doctrine a. Police officer who makes lawful patdown of person may make a warrantless seizure of an object that is immediately apparent (from the size, shape, feel) to be contraband b. rationale 1. No further invasion of privacy beyond that authorized by the patdown 8. Consent i. Serves as both a warrant exception and an exception to PC ii. Framework a. Rationale 1. Waiver of right

b. Showing 1. voluntary consent (see elements below) c. Scope 1. Reasonable to what is consented to (objective standard) i. Depends on what police ask to search for or what person gives consent to be searched ii. Searches that move closer to destruction of property become less reasonable iii. Elements a. Granted voluntarily 1. Burden on prosecutor 2. cannot be granted through (express or implied) duress or coercion 3. Police may not lie and say they have a warrant in order to obtain consent 4. Look at the totality of the circumstances i. characteristics of the consenter (age, sex, race, education, emotional state, mental condition) ii. number of police involved (more and in uniform is more intimidating) iii. How consent was asked (refused before given?) iv. Show of force by police (guns showing/drawn) v. Consentor in custody vi. Consentor awareness of ability to refuse consent a. awareness not required to give voluntary consent (schneckloth v bustamonte) b. Obtained from someone with real or apparent authority to give consent 1. Third party consent i. When one person gives consent to search another person's stuff ii. Person physically absent a. Co-inhabitant can consent to searches of common areas (Matlock) 1. reduced expectation of privacy b. What areas can be consented to are governed by social expectations 1. Overnight houseguest has an expectation of privacy in their temporary quarters (Minnesota v Olson) 2. Locked doors create greater expectation of privacy iii. Person physically present a. f a person with common authority over the property is physically present and expressly refuses consent, consent of the other is insufficient (Georgia v Randolph)

iv. Apparent authority a. Police only need to reasonably believe the consenter is a co-inhabitant 1. Don't have to be right, just reasonable 2. Girlfriend who had key to apartment, had clothes and furniture there, and referred to it as "our" apartment gave police reasonable belief she had authority to give consent (Illinois v Rodriguez) c. Scope of search must not exceed the consent granted 1. Scope is determined by an objective reasonableness standard i. What would a reasonable person have understood by the exchange between the officer and the suspect 2. Consenter may limit the area to be searched and the time for the search 3. Consent may be withdrawn at any time 9. Special needs doctrine - Community caretaking function i. Definition a. When a need beyond the normal need for criminal law enforcement makes warrant clause/PC impracticable or irrelevant 1. No needs for these increased protections if search/seizure is not done with criminal law enforcement motives ii. Test a. Apply the reasonableness balancing standard 1. Gravity of the public concern served by seizure 2. Degree to which the seizure advances the public interest 3. severity of the interference with individual liberty iii. Examples a. Administrative searches (decided before special needs doctrine) 1. Precursor to exception because PC standards were relaxed 2. Only had to show a nonarbitrary reason to inspect all homes within a certain area i. No particularized suspicion required b. School searches 1. Warrant requirement would interfere with needs for quick discipline 2. Test i. reasonable grounds for suspecting that the search will turn up evidence that student has violated or is violating law or school rules, AND ii. search is not excessively intrusive in light of age and sex of student and nature of infraction c. International border searches 1. Fixed checkpoints

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Can be stopped and searched at international borders without particularized suspicion ii. Rationale a. Right of the sovereign to protect itself b. Agents have decreased discretionary power because can only stop those who pass through c. Small degree of surprise/intrusion because checkpoint is fixed 2. Roving patrols i. Need RAS of criminal activity to stop ii. Rationale a. Higher surprise/intrusion level b. Greater discretionary power in who to stop 3. Vehicle checkpoint stops i. Primary purpose of the checkpoint has to be community or safety based a. Look at the subjective intent of the police program or department (not individuals making the stops) ii. Checkpoint set up to detect and prevent trafficking of narcotics had the primary purpose of law enforcement (City of Indy v Edmond) a. Potential safety purpose of checkpoint was clearly secondary to detecting criminal activity iii. Drunk driving checkpoint had the primary purpose of safety because it was intended to get dangerous drunk drivers off the road (Sitz) iv. Checkpoint set up to check drivers license and registration would serve a safety interest of ensuring that only those fit to drive operated motor vehicles (Prouse) a. In the actual case, however, the suspicionless stop was not done at a checkpoint v. Checkpoint to elicit information about a fatal hit and run accident upheld (illinois v lidster) a. Stop wasn't to determine occupants violation of a crime b. Court rejected the general presumption in Edmund of unconstitutionality and applied reasonableness test 4. Drug testing (pg 441) Should the evidence be excluded (exclusionary rule and standing) A. Historical background 1. In state and federal trials, the fourth amendment bars the use of evidence unconstitutionally seized by police (Weeks and Mapp v Ohio) 2. Serves as a type of remedy for the defendant 3. Rationales

i.

i. Deterrence ii. Judicial integrity iii. Pragmatic effect (most effective remedy) 4. Cost i. Police cannot use relevant information B. Standing 1. Generally i. The person seeking exclusion must show they have the right to bring the 4th amendment claim ii. Each person must show that he, personally, had standing to raise the claim 2. Test i. Standing exists where the D has an expectation of privacy (subjective) in the invaded place and that expectation is reasonable (objective) (overruled "legitimately on the premises" standard) a. Passenger in a car did not have a reasonable expectation of privacy in car's locked glove compartment and under the passenger seat (Rakas) b. Property interests are informative, not controlling c. ***This determination links standing to the first part of the 4th amendment analysis--was there a search or seizure?) 3. Framework i. What was the item that was search/seized? ii. Who is making the 4th amendment claim? 4. Suppression hearings i. Testimony used at suppression hearings may not be used against D at a later trial on the issue of guilt 5. Searching another person's residence i. When owner is present a. Overnight guests 1. Overnight guest relationship creates a reasonable expectation of privacy in the home that the 4th amendment protects (Minnesota v Olson) b. Factors 1. Duration of the stay 2. Commercial nature of the transaction i. More social = greater expectation 3. Previous relationship between parties c. Men who came to apartment for 2.5 hours for the sole purpose to bag cocaine for a commercial venture had no expectation of privacy in the home (Minnesota v Carter) 6. Search resulting in seizure of one's own property i. Man who had only known woman for a couple of days and had never had access to her purse did not have a reasonable expectation of privacy in the purse. Man had no right to exclude others from purse. (Rawlings v Kentucky) C. Exclusionary rule

1. Court has recently relied on reasonableness clause of the 4th amendment when determining what may be excluded i. Court will balance if a. Deterrence outweighs substantial social costs 1. Deterrence = deter police from unlawful search and seizure 2. Substantial social costs = exclusion of relevant evidence 2. Standard of conduct by police to trigger exclusionary rule i. Conduct must be a. sufficiently deliberate so that exclusion can meaningfully deter it, AND b. sufficiently culpable so that deterrence is worth the price paid by the justice system ii. Usually includes deliberate, reckless, or grossly negligent conduct (sometimes recurring or systematic negligence) a. NOT mere negligence 3. Gauging police action--good faith standard i. Whether a reasonably well trained officer (objective) would have known the search or seizure was illegal in light of all the circumstances (subjective) 4. Exceptions i. Attenuation and fruit of the poisonous tree a. Fruit of the poisonous tree 1. Evidence objected to has come at by the exploitation of an illegal search or seizure i. Cops illegally seized Toy. Immediately after being seized, Toy tells them Yee has the drugs. Cops find Yee and Yee gives them the drugs. The drugs are fruit of the poisonous seizure of Toy and cannot be admissible against Toy. ii. Wong Song, an accomplice of Toy, cannot exclude the drugs against him because he was not subject to an illegal search or seizure. He had no privacy right in Yee's heroin b. Not all evidence is fruit of the poisonous tree simply because it would not have been discovered but for the illegal actions of the police c. The connection between the illegal search/seizure and the challenged evidence becomes so attenuated as to dissipate the taint d. Factors 1. Length of time that has elapsed between the initial illegality and the seizure of the fruit in question 2. The flagrancy of the initial misconduct (dissipation of bad-faith violations takes longer than with good-faith violations 3. Existence or absence of intervening causes of the seizure of the fruits, AND 4. The presence or absence of an act of free will by the defendant resulting in the seizure of the fruit e. Wong Sun was arrested without probable cause or reasonable grounds but was later released. He returned voluntarily several days later and made

the statement at issue. The taint of the illegal seizure had dissipated because of the elapsed time and voluntary nature of the return ii. Good Faith exception (searches) a. Evidence obtained by a search warrant issued by a neutral and detached magistrate that is later found to be invalid will not be suppressed if an reasonably well trained officer would not have know the search was illegal despite its issuance 1. Suppression allowed when i. Officer knew or should have known except for reckless disregard for the truth that the information in the affidavit was false ii. Magistrate abandons his judicial role iii. Affidavit lacking any indicia of probable cause iv. Warrant fails to particularize place to be searched or things to be seized iii. Independent source doctrine a. ***Requires two searches*** b. An earlier, tainted search will not exclude a later lawful seizure so long as it is genuinely independent of the tainted search 1. Police cannot use any information obtained in the tainted search in applying for a warrant justifying the second search c. Officers had PC to believe weed was in a warehouse. Unlawfully searched warehouse and saw weed. Obtained search warrant not using any information from the unlawful search because they already had PC. Seizure of weed was from an independent source than any information from the tainted search (Murray) d. Rationale 1. Excluding evidence here would put police in a worse position than before the unlawful conduct--intent of exclusionary rule is to put people back in the same position before the unlawful conduct iv. Inevitable discovery doctrine a. ***Only one search*** b. Evidence causally tied to an unlawful search/seizure will not be suppressed if it can be shown that the information ultimately or inevitably would have been discovered by lawful means 1. inevitability = i. Normal police practices would have lawfully discovered the evidence, OR ii. If not a normal practice, given the facts of the situation, police would have taken steps that would have discovered the evidence 2. Gov't has burden of showing i. Police process ii. Inevitability of finding the evidence c. Deterrence rationale has little basis here

v. Knock-and-announce exception a. Fruits of a search conducted pursuant to a valid warrant executed in violation of the knock-and-announce rule will not be excluded b. Court applies balancing test (Hudson) 1. Do deterrence benefits outweigh the substantial social costs? i. Knock-and-announce meant to protect protection of human life and limb, property damage, and privacy from sudden entrance ii. Does not protect the general privacy of property. Police had valid warrant and were coming in regardless of the violation iii. Since Mapp, there are other remedies available besides exclusion such as increased availability of civil litigation 2. Low deterrence, high social cost vi. Binding appellate precedent a. Exclusionary rule does not apply when police conduct a search in objectively reasonable reliance on binding appellate precedent b. Rationale 1. The mere fact that there is some deterrence is not enough--must be enough to counterbalance the cost of suppression

Statements (confessions) VII. Rationale for suppressing confessions A. Prevent unreliable evidence from reaching the jury B. To use only statements taken without coercion C. To prove guilt only with statements that manifest a minimal level of mental freedom, whether or not the statements were coerced Substantive Due Process (14th Amendment) A. A statement obtained involuntarily from a suspect, by law enforcement agents, is inadmissible at D's state criminal trial B. Rationale 1. Reliability i. Of the truth of the statement--want to avoid coercion 2. Human dignity i. Don't want to encourage long, physically or emotionally damaging interrogations 3. Want police to obey the law i. Obey the law in upholding the law C. Test 1. Totality of the circumstances i. Protects against undue mental or physical coercion ii. Factors a. Mental or educational deficiency 1. objective standard with subjective elements

VIII.

IX.

i. Understand English ii. Limited education iii. Mental deficiency b. Circumstances surrounding the statement 1. Location, length, and time of the interrogation c. Actions of the police 1. Lying about the law or person's rights i. Fact based lying allowed 2. Use of confidant 3. Statement obtained through leading questions D. ***Courts now allow civil litigation based on due process claim even if involuntary statement not used at trial*** (Chavez v Martinez) E. Damages 1. Person may sue for damages if he was unduly coerced 5th Amendment A. Text 1. No person shall be compelled in any criminal case to be a witness against himself B. Elements 1. Compelled 2. To be a witness against himself i. Compelled statements actually used in trial 3. In a criminal case i. Criminal case = at the very least, the initiation of legal proceedings C. Miranda rights 1. Court wanted to create procedural safeguards for privilege against self incrimination in a custodial interrogation i. It does not matter if the statement was actually compelled, only that the proper Miranda procedure wasn't followed 2. Elements i. In custody ii. Being interrogated, AND iii. Given rights a. Right to remain silent 1. Everything can and will be used against you b. Right to an attorney 1. Right is only to have attorney present during interrogation 2. Court judicially read this right into the 5th amendment so people can effectively utilize their right against self incrimination 3. Attorney can/will be appointed if indignant iv. (Get waiver) 3. Custody i. Test a. Whether a reasonable defendant (objective), in light of the circumstances (subjective), would have felt he/she was at liberty to terminate the interrogation and leave

1. Subjective considerations of interrogation i. Where questioning occurred ii. How long it lasted iii. What was said iv. Presence of physical restraints v. Suspect allowed to leave when questioning was through 2. Subjective view of interrogator or suspect irrelevant i. Actual mindset not used 3. Children - while subjective characteristics are not considered, the court held that consideration of whether or not suspect was a juvenile is consistent with the objective nature of the test (JDB v North Carolina) i. Court may consider the suspect's status as a juvenile IF officer knows or should have known that the child might be a juvenile a. Objective conclusions about juveniles as a class can be drawn--more susceptible to influence and outside pressures b. Other areas of law group children into a single class based on their diminished legal capacity ii. Officer left card with D asking him to call. D called and agreed to be interviewed in an office at the station. D was not restrained and was told he was not under arrest. Confessed 5 minutes later. Released after conversation. Court held not in custody (Oregon v Mathison) iii. Roadside questioning (Terry stops) a. Roadside questioning of person detained pursuant to a routine traffic stop is not in custody (Berkemer) 1. Not enough pressures that sufficiently impair free exercise of right against incrimination i. Traffic stop temporary and brief a. Person expecting to be on their way shortly, regardless of how they answer (either with ticket or without) ii. Stop made in public a. Less opportunity for police to use illegitimate means iii. Less police dominated a. Questioned by 1 or 2 officers 4. Interrogation i. Suspect has to know he is being questioned by gov't agents a. Statements obtained by undercover police officer or informant does not require miranda warning because there is no element of coercion ii. There is an interrogation for Miranda purposes when a. Express questioning of the suspect, OR b. Its functional equivalent

1. Functional equivalent = words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect i. Objective look at whether officers should have known that their actions/words would elicit incriminating statement 2. If police are actually trying to elicit an incriminating statement, then they reasonably know that it would elicit an incriminating statement i. It helps if police know some characteristic about the person that they could appeal to in order to elicit a confession iii. Conversation between two police officers (while suspect was in back) about the possibility of mentally handicapped children finding suspect's hidden weapon was not the functional equivalent of express questioning because police did not know or should have known that an appeal to suspect's conscience would elicit an incriminating statement (Rhode Island v Innes) 5. Invoking Miranda Rights i. Suspects can either invoke their right to silence, their right to an attorney during questioning, or both ii. Right to counsel a. Suspect must unambiguously request counsel b. Scope 1. Not offense specific 2. applies to all officers, departments, and matters iii. Right to silence a. Right to silence must be scrupulously honored b. Scope - narrower than counsel - right might not apply if 1. Talking to different officer from a different bureau 2. About a different matter or crime, OR 3. A fair amount of time has passed (court said 2 weeks enough in one case) c. Remaining silent does not invoke right to silence (Berghuis v Thompkins) 1. Remaining silent for a long period of time during interrogation and then speaking does not show that the statement was not made voluntarily or knowingly iv. Waiver rules below 6. Waiver i. Burden of proof a. State has heavy burden of proving valid waiver ii. Express vs implied waiver a. Express oral or written statement is strong proof of waiver but not necessary nor determinative b. Waiver can be implied, based on inference iii. Silence alone does not prove a waiver iv. Test generally for waiver

a. A voluntary, knowing, and intelligent relinquishment of a known right or privilege, depending on the facts and circumstances of the case b. Elements 1. Voluntarily, AND i. Voluntarily = not result of gov't coercion 2. Knowingly/Intelligently i. Knowingly/Intelligently = understands the rights and has full awareness of the consequences of abandoning them a. Only full awareness of the consequences required, not awareness of the full consequences--e.g. does not need to know that the parole requirements had just been tightened b. Courts can consider education (is he illiterate?) and intelligence (mentally handicapped?) ii. Waiver is general, not specific to a certain crime--suspect does not have to know what crime the police are seeking to ask him about 3. *** Looking at the facts of circumstances surrounding situation like background, experience, and conduct of the accused*** v. Special rules a. Right to counsel during interrogation 1. Once right to counsel has been invoked, police must stop interrogating suspect until counsel is present i. Police cannot reinitiate interrogation unless except when counsel is physically present ii. Does not matter that suspect has spoken with lawyer in the interim (Minnick v Mississippi) 2. Suspect who has invoked right to counsel cannot be shown to have waived right only because he responded to further police-initiated interrogation 3. If suspect initiates the conversation, however, waiver can be found under the general rule i. Initiation = Inquiry from suspect that shows desire to open up a discussion directly or indirectly relating to the investigation 7. Limitations of Miranda exclusion i. Court distinguishing between 5th amendment rights and Miranda rights ii. Impeachment a. Confession taken in violation of Miranda could be used to impeach D's testimony at trial iii. Compelled statements a. Cannot be used for any purpose against him in a criminal trial b. Differs from Miranda violations and 4th amendment violations which are admissible in limited circumstances iv. Public safety exception

a. Information and evidence obtained from custodial interrogation before Miranda is given is admissible if it was done to protect the public b. Test 1. (derived from reasonableness balancing test - threats to public safety must outweigh the need for prophylactic rule protecting right against self incrimination) 2. Imminent threat to public safety i. Objectively reasonable belief by officers ii. Threats to public can be to officers, people nearby, or public as a whole iii. Exigency requires immediate action 3. Scope i. Questioning must be limited in scope to the nature of the threat 4. Subjective motivation of the individual officers is not relevant c. Man who was believed to have a gun was frisked in a store. Officers found an empty gun holster. Officer asked where gun was before giving Miranda rights. Court held public safety exception (New York v Quarles) 1. If D felt interrogation was coercive, he has a due process claim, not a 5th amendment claim d. Policy 1. Miranda protections broader than constitutional 5th amendment protections i. As a result, not all custodial interrogation are coercive which lead to compelled statements 2. Exception gives officers the ability to follow legitimate instincts when confronting dangers to public safety v. Incriminating statement made before Miranda warning and after warning a. Arises where D made an incriminating statement before a warning and then made reaffirmed that statement after given proper warnings b. Issue is whether a "fruits of the poisonous tree" rule can apply to Miranda violations c. Admissibility rule (Elstad) 1. A later administration of Miranda warnings to a suspect who has properly waived his rights and made incriminating statements is admissible if the prior, unwarned admission was not compelled i. Absent deliberately coercive or improper tactics, the unwarned admission does not warrant a presumption of compulsion ii. Therefore, if the first statement was not coerced, it does not affect the voluntarily nature of the post-miranda statements 2. Policy i. Fruit of the poisonous tree doctrine is a constitutional doctrine and does not apply here because Miranda protections exceed 5th amendment protections

d. Single interrogation rule 1. If pre-and post-Miranda statements are seen as being made as a result of a single interrogation, the post warning statement are inadmissible i. Miranda must be truly effective so that D is not coerced in making second statement 2. In Elstad, interrogations were made in two separate locations 3. In Seibert, D made admission before miranda given, then police gave miranda and had D make same admission (while in the same room and not separate by much time) i. Miranda warnings could not serve their purpose here, specifically being knowing/intelligent a. D would not think that they could stop talking after given Miranda at this point ii. Police tactics here were also a deliberate violation of Miranda, unlike Elstad vi. Physical fruits of a Miranda violation a. Physical evidence found as a result of a statement in violation of Miranda is admissible as long as the statement was voluntary vii. Miranda CANNOT be overruled by an act of Congress a. Applies in both state and federal courts b. Miranda is a constitutional decision so is unable to be superseded by Congress 1. Congress can prescribe modified Miranda warnings that are at least as effective X. 6th Amendment A. Generally 1. Right to have attorney present when being interrogated after the judicial process has started 2. Only applicable in to the accused in a criminal process i. Criminal process is not initiated with an arrest, but when the state makes the decision that there is going to be a criminal case a. indictment b. criminal complaint c. arraignment d. prosecutor moving the case forward rather than the police 3. Different from Miranda right to attorney i. Miranda right = right to have attorney present during interrogation to protect against self incrimination ii. 6th amendment right = right arising when criminal process has been initiated to preserve your trial rights B. General rule 1. Once adversary proceedings have commenced against an individual, he has a legal right to representation when the government interrogates him (Massiah v US) 2. Elements

i. Start of judicial process ii. Deliberately elicited a. State actor acted with purpose to get information 1. Look at the interrogator, not the one being interrogated (this is different from Miranda) 2. Examples i. Undercover agent has conversation with D in order to get incriminating statements (Messiah) ii. Officer, knowing D was a religious man, played to his conscious in order to elicit incriminating remarks (Brewer v Williams) 3. Waiver i. Voluntary and knowing/intelligent waiver of right a. Knowing/intelligent 1. Miranda rights can serve as a proper way to inform D of 6th amendment right (Patterson) b. Voluntary 1. D relied on advice of attorneys in dealing with authorities and said he would tell them the whole story after the car trip so no waiver (Brewer v Williams) i. Waiver might have been possible if officer, after his deliberate elicitations, told D of his right to have an attorney present during questioning ii. Waiver of Miranda right to counsel serves as a valid waiver of 6th amendment right to counsel (Patterson) 4. Scope i. Right is offense specific ii. For right to apply, judicial proceedings must be initiated for the specific right at issue a. Fact that offenses are factually related does not allow the questioning about the unindicted offense to be protected under 6th amendment (Texas v Cobb) b. Does not apply if police, in the absence of counsel, elicit information about a murder when only a separate burglary proceeding has been initiated (Texas v Cobb) C. Informants 1. US v Henry and Kuhlmann v Wilson are seemingly incompatible cases 2. Henry i. Information deliberately elicited when police put convict in jail cell with D 3. Kuhlmann i. Information not deliberately elicited when jail cell plant by police received the information "by happenstance" ii. As long as informant did nothing more than merely listen, no deliberate elicitation D. Approaching defendants

XI.

1. Police may approach the accused in order to seek a waiver of 6th amendment right (Montejo v Louisiana) Miranda rights to counsel v 6th amendment right to counsel A. 6th amendment attaches when judicial proceeding begin, miranda can be during investigatory process 1. Miranda can apply where 6th doesn't B. Miranda requires custody, 6th amendment does not 1. 6th amendment can apply where miranda doesn't C. 6th amendment office specific, miranda not 1. Miranda can apply where 6th doesn't D. Miranda applies when custodial suspect interrogated, 6th amendment applies when gov't deliberately elicits information 1. Miranda focuses on suspect 2. 6th focuses on interrogator E. 6th amendment applies to deliberate elicitation by undercover agents, Miranda does not