I.

II.

III.

Stages in the Criminal Process a. Investigation Arrest/Booking Arraignment Preliminary hearing Grand Jury Discovery PRETRIAL MOTIONS Trial/Plea Acquittal or Sentencing Probation/Parole Revocation. FOURTH AMENDMENT Guardian against unreasonable searches and seizures. a. TWO SPECIFIC PARTS: b. Reasonableness Clause i. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. c. Warrant Clause i. 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. 1. If illegally searched and seized and NOT CHARGED = civil action = violated rights 2. If illegally searched and seized and CHARGED = motion to suppress th d. 4 Amendment OUTLINE i. Govt. action? 1. Govt. paystubs 2. Did the govt. know of or acquiesce in the conduct? a. Test: i. Knowledge ii. Acquiesce iii. Aid 3. If yes, was the private actors motive to support the govt. or to support his own ends? e. SEARCH i. Definition: ii. Katz v. U.S. phone booth was tapped and taped a. TWO PRONG TEST (Katz Test) i. Was there an ACTUAL expectation of privacy? AND 1. Subjective Prong ii. Was there a REASONABLE expectation of privacy? 1. Objective prong 2. Ct. said that HERE the 4th amendment protects PEOPLE, not places. 3. Main issue the agents did NOT get warrant under the proper authority a. Govt. was curtailing very closely b. Govt. wanted exception to warrant requirement. 4. Held search was UNLAWFUL and UNREASONABLE without a warrant iii. Katz Factors 1. Location a. Open Fields Doctrine i. Defines the area protected by the 4th amendment. b. Assumption of the Risk i. False Friends ii. Pen Registers iii. Electronic Tracking Devices iv. Aerial Surveillance v. Thermal Imaging Devices vi. Container Searches Katz Factors: Open Fields Doctrine (location) a. Open Fields Summary i. If an area is an open field, then no 4th amendment protection ii. If an area is within the curtilage, 4th amendment might be implicated, but NOT NECESSARILY iii. To define whether an area is curtilage look to 4 factors set out in DUNN. b. Oliver v. U.S. (1984) open fields are not entitled to the 4th amendment protection. i. Open fields are NOT persons, houses, papers or effects.

IV.

V.

1. NOT a search a. Any assertion of an expectation of privacy (such as a no trespassing sign) is NOT an expectation that society recognizes as reasonable. b. Could apply to fenced areas, heavily wooded areas, open fields, etc. ii. OPEN FIELDS v. CURTILAGE 1. Curtilage = land IMMEDIATELY surrounding and associated with the home. a. Entitled to 4th amendment protection because it is REASONABLE to assume that these areas will be private. i. Considered to be an EXTENSION of the home. 2. Open fields = anything outside curtilage a. Need not be open nor a field 3. US v. DUNN a. Created 4 FACTORS to distinguish Curtilage v. Open Fields i. Proximity to home ii. Is it within an enclosure surrounding the home iii. Uses to which areas have been put iv. Precautions taken to protect privacy of area. 1. Case by case determination = is the area so intimately tied to the home itself that it should be placed under the homes umbrella of the 4th amendment protection? b. ISSUE Was there a search by shining the flash light in the barn? i. HELD No search to shine a flashlight in barn under these circumstances. 4. AERIAL SURVEILLANCE CALIFORNIA v. CIRAOLO (1986) surveillance of curtilage NOT ALWAYS A SEARCH a. Aerial surveillance of fenced-in backyard w/in curtilage of home b. Not a search: had knowingly exposed yard to any member of flying public c. If publicly exposed, cant be private d. Holding so even though actual expectation of privacy, its not reasonable. KATZ FACTORS ASSUMPTION OF THE RISK a. False Friends i. Question does the 4th Amendment apply when D has a conversation with a govt. informant and that conversation is transmitted electronically? ii. HOFFA v. US (1966) 1. 4th Amendment does NOT protect wrongdoers misplaced belief that a person to whom he voluntarily confides his wrong doing will not reveal it a. NO warrant needed because its NOT A SEARCH. iii. Lopez (1963) 1. No warrant needed (because no search) when govt. agent simultaneously records conversation. iv. LEWIS (1966) 1. No 4th amend. Protection when govt. sends a secret agent to Ds home to make a narcotics purchase no warrant needed, no search. v. US v. WHITE (1971) 1. No constitutionally protected expectation of privacy that the person with whom you are speaking is NOT an agent of the police a. 4th AMEN. DOES NOT APPLY 2. Because no protection if having a conversation with informers, its no different if informers use recording equipment or transmit the conversation. 3. It doesnt make sense to exclude a more accurate piece of evidence (recording) if informer can testify about conversation from memory. 4. One contemplating illegal activities must realize that his companions may be reporting to the police. 5. Govt. can offer conversations in govt. case @ trial. 6. wired false friend = same as regular false friend. Pen Register (assumption of the risk)

VI.

VII.

VIII.

IX.

X.

a. Definition device that records numbers dialed from your phone b. Smith v. Maryland i. Issue whether the installation and use of a pen register, installed at the phone company, constitutes a search within the 4th amend. ii. Ct. applied Katz factors 1. No actual expectation of privacy a. Users must convey numbers to phone company to complete a call b. Users know that phone company collects numbers (monthly phone bills) c. Phone company does in fact record numbers (phone book, phone bills) 2. No reasonable expectation of privacy in information voluntarily turned over to third parties Container Searches (assumption of the risk) a. Garbage holds NO REASONABLE expectation of privacy i. CA v. Greenwood (1988) ct. held that there was NO REASONABLE expectation of privacy in garbage left outside the curtilage for removal. 1. Remaining issue was it abandoned property? Well, it depends. a. At what point do you abandon your garbage? i. It matters if there is a 3rd party that comes to remove your trash v. govt. trash collectors. ii. Luggage 1. Bond v. US (2000) border patrol agents manipulation of soft luggage does constitute a search a. Passenger on a BUS does have a REASONABLE expectation of privacy because SOCIETY RECOGNIZES that there is. b. Dog sniff will be ok with luggage. Electronic Tracking Devices (assumption of risk) a. Knotts placing beeper in can of chloroform did not = search i. B/c it only conveyed info available like open fields 1. And information that is conveyed to general public. ii. NOT A SEARCH iii. No reasonable expectation of privacy on a PUBLIC ROAD. b. KARO Yes, it is a search i. Placing a beeper in a can of ether constituted a search because it gave information regarding the inside of a house that could NOT have been otherwise achieved without physical intrusion. ii. Police were monitoring beeper while it was located in the house while obtaining the search warrant. Thermal Imaging a. Kyllo v. US (2001) does the use of a thermal imaging device aimed at a private home constitute a search under the 4th amendment? i. YES 1. Where the govt. uses a device that is NOT in the general publics use, to explore details of the home unknown w/out PHYSICAL INTRUSION, the surveillance is a search and presumptively unreasonable without a warrant. 2. Key points: a. Majority concerned about leaving the homeowner at the mercy of advancing technology that could discern all human activity in the home b. obtaining by sense-enhancing technology any information regarding the interior of the home that could NOT otherwise have been obtained without physical intrusionconstitutes a search at least where the technology in question is NOT in general public use. c. 4th amendment draws a firm line at the entrance to the house i. Justice Scalia. Technology issues a. What happens when technology advances to the point where sense-enhancing technology is available to and used by the general public? b. What about info provided to a 3rd party as the result of technology i. i.e. smart homes, security systems, medical alert systems, GPS/OnStar GPS Tracking

XI.

a. Can the police (1) place a GPS tracking device on your car (w/out your knowledge or permission) and (2) track your vehicle 24/7 w/out a warrant? i. Fed. Cts. are split. b. KNOTTS i. Knotts warned that if the ct. approved warrantless electronic monitoring activity 24 hours surveillance of ANY citizen of this country will be possible without judicial knowledge or approval. 1. Ct: if such dragnet type law enforcement practices should eventually occur there will be time enough then to determine whether different constitutional principles may be applicable. c. City of Ontario v. Quon (2010) i. Majority (Kennedy) assumed a reasonable expectation of privacy in the content of messages sent on an employer issued pager; The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipmentThe judiciary risks error by elaborating too fully on the 4th Amendment implications of emerging technology before its role in society has become clear. Katz Factors: 3. Other Factors (standing issue) a. Property Interests i. Rawlings v. KY (1980) ownership of property at issue is one of facts to be considered ii. CA v. Hodari D. (1991) NO legitimate expectation of privacy in abandoned property 1. No expectation of privacy when you throw cocaine or other illegal substances out the car window during a police chase iii. Government entities are not bound by property law principles. iv. Its really only relevant when property is abandoned. 1. Or when PO has interfered w/ your property interests in some way. b. Social Custom i. Minnesota v. Olson overnight guest has LEP in dwelling they are staying. ii. Minnesota v. Carter temporary visitor; commercial purpose is NOT enough to confer LEP in apartment 1. i.e. a few hours; no expectation of privacy especially when visit is commercial in nature. c. Other issues to consider i. What about the person who lives in the house/dwelling full time? ii. Whether the conduct is illegal or not IS A FACTOR in determining if a search has actually occurred. iii. Back pack v. garbage 1. When do you relinquish control to a 3rd party? iv. Search of a person v. search of a house 1. Search of a person able to contest if it is an illegal search 2. Must have STANDING to contest POISONOUS TREE d. Expectations of Privacy i. OConnor v. Ortega (1987) expectation of privacy in the workplace has deep roots in the history of the Fourth Amendment. 1. Looks @ openness of office space itself 2. Compare to QUON. ii. Schools have a REDUCED expectations of privacy. e. Legality of Activities i. It doesnt matter until the engaged in conduct ii. Examples: 1. Canine Sniffs (place, Caballes) a. Not searches b. Gov. activity that ONLY REVEALS the possession of contraband compromises NO legitimate privacy interest. i. CRUCIAL TO ANALYSIS 2. Commercial v. Private Activities a. Commercial = generally LESS PROTECTED.

XII.

XIII.

iii. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent OR the guilty. Minnesota v. Carter f. Vantage Point i. Element of PLAIN VIEW EXCEPTION ii. No LEP in areas open to public observations iii. Open Fields Doctrine iv. Physical Characteristics: 1. NO LEP in: a. Sound of voice b. Physical appearance c. Handwriting d. Fingerprints 2. LEP in: a. Content of blood b. Breath tests c. Urinalysis d. Fingernail scraping e. Forced surgical procedures g. Reduced Expectations i. 4th Amendment balancing (individuals privacy interest v. govt. interest in obtaining evidence) 1. Vehicles Way less 2. School setting reduced, but not eliminated 3. Prison setting balancing a. the uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. Hudson v. Palmer (1984). Government Action a. 4th Amendment ONLY covers actions by govt. actors i. NOT PRIVATE citizens ii. TRICK unless the private citizen is acting as a govt. agent 1. Police officers acting as privately hired security AND then collect evidence or is the arresting officer a. Non-police force security guards th 4 Amendment PART II a. WHAT IS A SEIZURE? i. Seizure of Property 1. Results from a meaningful interference with ones possessory interest of the item 2. Items subject to Seizure: a. Contraband b. Fruits of a Crime c. Instrumentalities of a Crime d. Evidence relating to a Crime ii. Seizure of a Person 1. Occurs when a govt. actor significantly interferes with a persons freedom of MOVEMENT 2. Different types of seizures require different levels of proof a. Nothing b. RAS (Reasonable Articulable Suspicion) c. Probable Cause 3. Government Action+ a. 4th Amend. Only covers actions by govt. NOT PRIVATE CITIZENS b. Consider 2 Factors:

i. Whether the govt. KNEW OF and ACQUIESCED in the intrusive conduct; and ii. Whether the private actors purpose was to assist law enforcement efforts rather than to furnish his/her own ends. 1. Similar to balancing test a. Must be same INDICIA b. Cts/circuits vary on how they apply iii. Jacobson CASE 1. Carves out these factors c. Skinner v. RLEA (p. 160) i. Overview fed. regulations for trains and drug testing 1. Testing regulations preempted state laws covering the same subject matter. 2. Superseded by any CBA provision relating to the same subject matter 3. Conferred right on FRA to receive biological samples and test results 4. This could not be contracted away ii. TEST results HAD to be turned over 1. Public policy for SAFETY reasons 2. Does NOT matter what the state regulators say, they DO NOT OVERRIDE FEDERAL REGULATIONS. iii. Govt. is directing the collection of the samples = govt. action. iv. Strong evidence for 1st factor, but not other factor. d. Extent of govt. intrusion i. Even where govt. did NOT encourage or participate in private conduct, the 4th amend. Might still apply where the governments LATER CONDUCT intrudes further on the aggrieved partys interest ii. Further intrusion constitutes the govt. action requirement 1. A SEPARATE search/seizure. iii. Jacobsen case p. 160 1. Overview Fed. Ex. Employee finds broken package that contains drugs a. Employee search v. govt. search b. Field test = seizure. c. NOT A SEARCH (double check this w/ someone else) d. Agents action of opening the package further than employees i. Intrusion of privacy? e. Probably NOT enough PC to just view the bags of drugs to get a warrant f. Has to be SUFFICIENT to really attach conduct to govt. agent g. Case is NOT about fed ex employee (not covered by the 4th.) i. More about the SCOPE of govt. agent (covered by 4th) ii. It was a SEPARATE search of bags covered by 4th. 2. This case distinguishes govt. agent from normal person. iv. Public School Officials 1. 4th Amend. Reaches more than just law enforcement activities a. Extends to ALL govt. actors including public school officials. 2. If you are employed by the govt., then you ARE a govt. actor for purposes of the 4th Amend. th b. Language of the 4 Amendment 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. i. Divided into 2 separate clauses: 1. Reasonableness Clause 2. Warrant Clause ii. How do these two clauses interact? Supreme Ct. opinions vary. c. Reasonableness Clause

i. Minority View 1 factor in a balancing test; 4th Amend. ONLY REQUIRES reasonableness 1. Case by case determination 2. Favored by Justices Scalia and Thomas a. NO WARRANT REQUIREMENT 3. Majority View Search/Seizure REQUIRES a warrant or a recognized exception. a. If no warrant, the search/seizure is UNREASONABLE. i. Unless there is an exception. 4. Balancing Scalia a. Reasonableness Balancing case by case basis b. Categorical Balancing better for law enforcement because it is more clear i. HOWEVER there is NO BRIGHT LINE RULE. 5. Subjective intent of police is IRRELEVANT within 4th Amendment. a. Whren v. US (1996) p. 183 i. Overview: traffic stop that leads to drug search. ii. D moved to suppress drugs 1. Ct. REJECTED looking at polices subjective intent because the cops had reason to stop the car NOT A VIOLATION iii. D asked for an OBJECTIVE test from ct. 1. Was it reasonable to pursue? 2. Ct. said it DOESNT MATTER what their subjective intent was, as long as they can prove it later. a. Cops had PROBABLE CAUSE iv. Think about it from a law enforcement prospective. d. PROBABLE CAUSE i. Generally 1. What the SC is looking for: a. It is NOT an ABSOLUTE TEST, not a bright line rule. 2. PC = totality of the circumstances a. May require more or less depending on the case. 3. Assume that a search or seizure has already taken place 4. = standard for grand jury and preliminary hearings. ii. Carroll v. U.S. 1. PC exists where the facts and circumstances are sufficient to warrant a person of reasonable caution in belief that a criminal offense has been committed. iii. Quantifying Probable Cause (supreme ct.) 1. Hard to quantify25, 30, 45, 50%??? 2. Most courts agree that it is LESS than preponderance of the evidence 3. MUST APPLY TO FACTS a. Depends on the circumstances in that particular case. 4. This is an OBJECTIVE TEST totality of the circumstances makes PC = NON-QUANTIFIABLE a. Same fact can have value if it is used. b. However, subjective factors DO come in even though it is an OBJECTIVE TEST. 5. The lower the standard the more serious the crime because less is needed. iv. Arrest (PC needed for arrest) 1. Exists where there is a fair probability that: a. A particular individual b. Has committed OR is committing a particular criminal offense. c. What the govt. knew at the time they engaged in the conduct OR at the time the warrant was due? Is there enough PC for this particular crime? d. Maryland v. Pringle (2003) (p. 189) Three passengers, Pringle in the front side, person in the back; when police pulled over driver there was money seen in the glove box. Driver consented to search drugs were found in backseat arm rest. i. Money AND drugs were NOT CLEARLY VIEWABLE at the same time

ii. No one claimed ownership of the drugs 1. So, the officer arrested EVERYONE and Pringle confessed the next day. iii. D argued that there was no PC to arrest 1. Ct. disagreed. iv. This case is different from Ybarra S. Ct. warrant at bar, patted down ALL CUSTOMERS, customers were not part of the warrant v. Different from DIRE (distinguished by Pringle case): facts are much closer to Pringle, not sufficient PC. vi. Inference Commonality of Interests 1. ONLY exists if police dont have information singling anyone out 2. DIRE had this 3. Pringle DID NOT. e. If no one confesses to the crime, P.O.s have PC to arrest everyone. v. Probable cause to SEARCH 1. Exists where there is a FAIR PROBABILITY that: a. Something that is properly subject to seizure by the govt. (contraband, fruits of crime, instrumentalities or evidence of crime) b. Is presently c. In the specific area to be searched i. Can obtain an anticipatory search warrant. vi. Informants 1. Aguilar-Spinelli Test: 2 pront test (both prongs must be satisfied) a. Credibility/veracity of the informant b. Basis of knowledge/reliability of the information i. Had to prove credibility ii. Both prongs require EVIDENCE. 2. Credibility/Veracity: things to look for: a. Was the information given contrary to the informants interest? b. Has the informant given prior accurate tips? c. Does the informant have a reputation for truthfulness? 3. Reliability: things to look for: a. Did the informant PERSONALLY OBSERVE or PARTICIPATE in the activities reported? b. Was the tip DETAILED ENOUGH to indicate FIRST-HAND KNOWLEDGE? c. Did the nature of the information or the manner in which it was gathered indicate person knowledge or a highly-reliable source? 4. Gates A-S test NO LONGER APPLIES a. FACTS: i. Anonymous letter sent to police w/info re: suspicions of a family dealing drugs 1. Letter was NOT 100% correct re: conduct of Ds 2. In and of itself, the letter does NOT meet sufficient for probable cause. a. S. Ct. said that watching/surviving GATES provided probable cause b. Even though it was NOT exactly what was predicted in the letter 3. Dissent the way it was prediction was more suspicion than actual events a. They wouldnt leave the house w/ drugs/evidence in the basement b. Corroboration is important even if the facts ARENT PERFECT. c. GATES LOWERED THE STANDARD FOR PROBABLE CAUSE. 4. TOTALITY OF THE CIRCUMSTANCES a. FROM Gates enough particularized facts to lead a common sense person of reasonable caution to believe that there is a fair probability of criminal activity. 5. Gates anonymous tip (sent in the form of a letter to police) a. Sue Gates drives car to FL and flies back to Chicago b. Lance flies down to FL to pick up car w/ drugs and drives it back to Chicago c. May 3rd, Sue drives to FL

d. A few days later, Lance will fly down. e. $100,000 of drugs in basement 6. Corroboration w/ real events a. Car in FL b. Lance fly down in a few days c. Drive car NORTH toward Bloomingdale i. Ct. said ENOUGH that corroboration reduced chances of reckless and prevaricating tale, thus providing a substantial basis for crediting hearsay. ii. Problem 2-30 p. 218-219 (GOOD EXAM QUESTION) 1. Facts are important! 2. Anonymous tip was physical description a. Need to be VERY SPECIFIC i. (who, what, where, when, why and how) 3. The facts in the hypo were NOT corroborated. vii. Warrants: Arrest and Search 1. Warrant Clause 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. 4th Amend. Warrant Requirements: a. Warrant MUST be supported by PROBABLE CAUSE. b. Set out in an OATH or AFFIRMATION c. Warrants MUST be PARTICULAR w/ regard to what or who is being seized/what is being searched. 3. Reasons for Warrant Requirement a. Neutral and detached magistrate better equipped to make RELIABLE PC judgments than police. b. A warrant helps limit police discretion when conducting a search or seizure. c. Avoid post-hoc, de facto weakening of the PC requirement. d. Forces officers to CRITICALLY ANALYZE justification for warrant and confront weaknesses in the case. 4. Procedure for obtaining a Warrant a. Application b. Sworn Affidavit i. PC to believe that evidence is seizable. ii. PC to believe that seizable evidence is located in the place to be searched c. Search warrant d. Return i. Part of form shows timing and evidence obtained. e. Perjured Affidavits i. Once warrant is issued, statements in the application are presumed to be accurate. ii. Franks v. Delaware Franks Motion 1. D MUST prove intentional/reckless falsity in warrant application; AND a. Burden is on D 2. Falsity is NECESSARY to the finding of PC a. Remedy = suppression of evidence found during execution of warrant. b. If the information is NOT relevant, then it doesnt matter if an officer lied or not f. Arrest v. Search Warrant i. Arrest Warrant 1. Complaint 2. Affidavit 3. Warrant 4. PC that particular person committed a particular crime.

ii. Search Warrant 1. Application for warrant 2. Affidavit 3. Warrant (stating in PARTICULARITY the location and list of evidence to be obtained) 4. PC that seizable evidence is located in a particular place iii. PARTICULARITY STANDARD whether the warrant contains sufficient particularities so that the officer can be reasonably certain of executing it correctly. 1. Issues: a. Andresen v. MD (1976) residual clauses i. together w/ other fruits, instrumentalities and evidence of crime at this time unknown. ii. Was NOT the only clause in the warrant iii. Documents obtained during search and what was on the warrant had BROAD particularity, not SPECIFIC particularity that is required. iv. D argued that it allowed police to look for anything that related to ANY crime, not just the crime at issue. v. CT. DID suppress some documents seized and let the government keep some. b. Groh v. Ramirez (2004) contents of warrant i. particular application but vague warrant VIOLATES 4th amendment. ii. GROH had general warrant that didnt really list anything iii. Need to attach a list or refer to a list and then attach it to the warrant. iv. Neutral and Detached Magistrate 1. Fed. R. 41 requires a judicial officer a. States may allow lay people to issue warrants for minor offenses. 2. Lo-Ji Sales, Inc. v. NY (1979) a. Magistrate participated in the search himself i. He shouldnt have been involved no longer OBJECTIVE ii. Adult video sales to undercover cop magistrate/town justice, officers, and prosecutors were all issuing the warrant. b. Warrant went from 2 pages to 16 pages because they kept adding to the list. i. Allowed store to stay open. c. Ct. said that this is NOT neutral and detached and NOT particular. 3. FEES warrants issued by magistrate who was paid a fee for each warrant issued, without an approved fee application, violated the 4th Amend. g. Executing Warrants i. Issues: 1. Time and Manner of execution 2. Treatment of individuals during execution of warrant ii. Scope of Search 1. Defined by the object(s) of the search a. Cannot look for a 27 TV in a glove box. b. Drugs give police VERY BROAD RANGE of places to lawfully search iii. Knock and Announce Standard 1. Constitutionally REQUIRED. 2. To dispense w/ the K&A requirement, police MUST have a REASONABLE SUSPICION that knocking and announcing their presence, under the circumstances, would be DANEROUS or FUTILE, or that it would INHIBIT THE EFFECTIVE INVESTIGATION of the crime by, for example: allowing the destruction of evidence iv. Exclusionary Rule 1. Hudson v. Michigan (2004) a. Supreme Ct. held that exclusionary rule does NOT APPLY to failure to wait a sufficient amount of time before entering.

2. Exclusionary Rule v. 4th Amend. Violation a. Individuals i. Generally, police may NOT search individuals present during the execution of a search warrant, UNLESS: ii. The individual(s) are included w/in the scope of the warrant (see Ybarra) OR iii. A Terry frisk is appropriate iv. ^RAS to believe that an individual is ARMED AND DANGEROUS viii. ARRESTS 1. Reasonableness a. Relevant factors: i. Seriousness of offense 1. Authority to arrest is statutory. 2. 4th amend. Places SOME restrictions on arrests 3. Generally, it is up to the jurisdiction to determine when a CUSTODIAL arrest is appropriate. a. See Atwater and Virginia v. Moore i. S. Ct. overturned VAs supreme state court and said we only care if officer had PC for arrest w/ respect to the 4th amend. ii. Arrested someone during a search and found drugs. Pulled over for driving w/ suspended license violated VA law. ii. Level of suspicion 1. PC is ALWAYS required for custodial arrests w/ or w/out warrant 2. Judicially sanctioned arrests may be approved on less than PC for purposes of fingerprinting. a. Kaupp v. Texas dicta 3. RAS is required for less intrusive seizures a. TERRY 4. Warrant requirement a. A warrantless arrest is valid if: i. An officer has PC to believe that a person has committed a felony OR ii. Has committed either a felony or misdemeanor in the officers presence AND iii. The arrest occurs in a public place. b. Arrests in the Home i. 4th Amen. PROHIBITS warrantless, nonconsensual/no exigent circumstances, entry into a suspects home in order to make a routine arrest ii. ^Payton v. NY iii. To arrest someone in his own home, police MUST have an ARREST WARRANT for that person and a REASONABLE belief that the person is present (absent consent or exigent circumstances) iv. Hotel room issues? v. Exceptions to PAYTON (4) vi. (1) hot pursuit of fleeing felon vii. (2) imminent destruction of evidence viii. (3) need to prevent suspects escape ix. (4) risk of danger to police or other persons either inside or outside the home c. Arrests in ANOTHERs Home i. To arrest someone in anothers home (or other place protected by the 4th Amend.) police need both an ARREST WARRANT and a SEARCH WARRANT (absent consent and/or exigent circumstances)

ii. ^^steagald v. US (1981) 5. Use of force ix. Police-Citizen Contacts (3) 1. When does the 4th amend. Apply? a. Not a lot of case law b/c of Exclusionary Rule 2. Types of P-C Contact: 3 levels a. Voluntary Contacts no PC or RAS required i. 4th does not apply b. Two types of seizures: i. Terry Stop requires RAS lowest standard. ii. Arrest custodial and de facto both require PC. 1. Custodial 2. De facto HIGHEST LEVEL a. more instrusive than a Terry stop. b. REQUIRES PC. iii. Implications from TERRY (1968) 1. RAS did NOT exist before this case 2. Move away from per se warrant requirement to reasonableness analysis 3. Court no longer treats all searches and seizures alike 4. Applies LOWER STANDARD than PC to less intrusive types of seizures a. i.e. frisks and stops i. Frisk = search ii. Covered under the 4th iii. Lower standard but more specific iv. RAS for certain thing b. Stop = seizure iv. Facts of Terry 1. Two people were standing on a street corner, walking back and forth and stopping in front of a particular shop, had meetings, 3rd party involved; gave officer RAS that they were casing the store; officer performed a FRISK over the clothing had RAS that there was a GUN (could be considered a separate search) 2. Ct. said that officer needed to have RAS that he was ARMED and DANGEROUS to conduct a sufficient frisk. Need exigent circumstances. c. Terry issues i. Stop RAS to believe that criminal activity may be afoot. 1. Stop itself MUST be limited in DURATION ii. Frisk RAS to believe that the suspect is ARMED AND DANGEROUS 1. Pat down of outer clothing ONLY a. NO MANIPULATION OF OBJECTS 2. Can seize weapon w/ RAS. a. Contraband w/ PC (plain feel) 3. Purpose to search for weapons d. RAS i. Officer MUST be able to point to SPECIFIC and ARTICULABLE facts which, taken together with RATIONAL INFERENCES from those facts, reasonably warrant the stop or frisk. 1. Must be MORE than a HUNCH or GUESS on the officers part. a. Look to where they found PC 2. Something less than PC ii. Supreme Ct. REFUSES to make RAS categories e. How to tell the difference b/w a stop/arrest and non-seizure. i. Test for SEIZURE would a reasonable person, in light of totality of the circumstances, have felt that she was NOT free to leave?

ii. Mendenhall Factors BALANCING TEST; if there is NO seizure then 4th AMEND. Does not apply. 1. Threatening presence of several officers 2. Display of weapon (show of force) 3. Physical touching 4. Language/tone of voice indicating that compliance might be compelled. iii. Self-Restrained 1. Youre voluntarily there, but you dont feel free to leave. a. On a bus or at your job. 2. In these types of cases, inquiry is whether a reasonable person would feel free to decline the officers request or otherwise terminate the encounter 3. If so, then NO SEIZURE 4. TOC with innocent person (Bostick bus stop case) a. Point of view 5. Police do NOT need any level to speak to you f. US v. Drayton (p342-343) i. Seizure facts: 1. 3 officers on bus (one in front, one in back and one going down the aisle) 2. Officer leaned over Ds shoulder 3. Held up blade 4. Face 12-18 away from Ds 5. Weapon in holster (do not have to take out) 6. Bus interdiction ii. Non-seizure facts 1. Conversational tone (good for pros.) 2. No uniforms 3. No brandishing of weapon 4. Asked to search BAG and PERSON 5. Kept aisle open. iii. D moving to suppress drugs that officer found in his pocket and taped to his legs 1. Basis if D consented to search? a. Coercion therefore a CONSENT ISSUE. b. He was on the bus and didnt feel he could leave. iv. 2 poisonous trees: 1. Search 2. Stop (if it was a stop) or voluntary seizure. a. Terry stop or invalid seizure matters v. Only 3 officers spread out on the bus vi. HOLDING NO SEIZURE g. AUTO STOPS i. Following cases were raised on STANDING ISSUES ii. Both driver and passengers are seized when police pull over a vehicle (Brendlin v. CA 2007) 1. 4th Amend. Concerns, therefore it applies 2. Depends on DURATION of the stop: a. PC for arrest i. A 2nd arrest can happen the longer it takes. b. RAS for Terry stop. 3. Can Brendlin contest the search of the car? a. Depends on who OWNS THE CAR. b. Here: probably not. c. Can Brendlin suppress drugs in the car? i. Poisonous tree stop of the car.

iii. Just b/c it can fit the exception for ONE requirement doesnt matter if it can apply elsewhere. iv. Police may order driver and passengers to EXIT the vehicle must have RAS that driver/passenger is ARMED and DANGEROUS before conducting the frisk (Arizona v. Johnson, 2009) v. What is he relating THAT evidence back to? 1. Make the connections! h. Stop-and-Identify Statutes (when does a terry stop turn into an arrest for purposes of the 4th Amend.) i. Hiibel v. Nevada 1. NV statute that requires RAS before officers can ask for ID 2. Can a Terry suspect refuse an officers statutory authority to identify himself? a. Majority distinguished language in Terry, Berkemer and Wardlow i. ID request was REASONABLY RELATED in scope to the circumstances that justified the stop ii. When you have a statute that requires some relation to request for ID and requires RAS or PC REMEMBER b/c it depends to change from frisk/stop to a full arrest. 3. Asking for ID doesnt change the duration of the stop. i. Show of Authority i. CA v. Hodari D. (1991) 1. Ct. held that there is NO SEIZURE unless and until: a. The person SUBMITS to the officers showing of authority OR b. The officer uses physical force to control the persons movement. i. Seizure @ time of tackle. j. Terry stop v. Arrest i. Test = TOTALITY OF THE CIRCUMSTANCES (analysis) ii. 2 factors: 1. Length of detention (main factor looked @ by court) 2. Place of detention (where is this stop occurring) iii. Length of Detention 1. Every situation is DIFFERENT 2. NO BRIGHT LINE RULE a. 20 min. was OK where police were pursuing investigation diligently i. US v. Sharpe (1985) b. 90 min. was too long (suitcase detained @ airport for canine sniff and to secure search warrant) i. US v. Place (1983) iv. Place of Detention 1. Moving a person from one place to another can convert a stop to an arrest a. Depends on WHERE they take you b. Does it decrease your freedom of movement? c. Increase the officers level of control? 2. Moving from airport concourse to office approximately 40 ft. away (Florida v. Royer 1983) 3. Police can order driver AND passengers out of car during a Terry traffic stop a. But moving them beyond the immediate vicinity of the stop converts to an arrest. 4. Passengers are seized when police pull over vehicle. Police MUST have RAS that passenger or driver is ARMED AND DANGEROUS before conducting a frisk (Arizona v. Johnson (2009); Brendlin v. CA) 5. Taking suspects to police HQ w/out consent = arrest a. Hayes v. Florida (1985) Kaupp v. Texas (2003)

6. Failing to return ID or travel tickets is indicative of an arrest. 7. Mendenhall factors also relevant to distinguish b/w stops and arrests x. REASONABLE ARTICULABLE SUSPICION 1. Definition a. Reasonable suspicion is a LESS DEMANDING standard than PROBABLE cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than is required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. (Alabama v. White 1990) i. Need less RAS than PC 1. Lower standard 2. Lower standard of PROOF 2. Quantity of Evidence for RAS a. Illinois v. Wardlow i. Factors: 1. High-crime area = NOT RAS, but still a factor a. Not enough in and of itself. 2. Nervous, evasive behavior 3. Unprovoked fight v. going about business. a. Running away that suggests they were getting away from police. ii. NO BRIGHT LINE RULE 1. Must look @ TOC in EACH CASE. iii. Terry ONLY can search FOR WEAPONS.. NOT CONTRABAND. 3. Quality of Evidecnce for RAS a. Alabama v. White i. Anonymous tip (reliability and credibility of informant) ii. Specific info re: who, what, where, when, why and future conduct. iii. Stop her right before motel iv. Saw her come out of apt. building v. They did NOT see her carrying anything vi. Prediction of conduct and description vii. Predicted future events 1. Ct. said there was ENOUGH RAS because the tip was corroborated to furnish RAS that she was engaged in criminal conduct. 2. Depends on how many roads there are and their ACCESSIBILITY. a. Changes tip & indicia of criminal conduct b. Matters WHERE THEY WERE STOPPED. 3. shows how LITTLE the ct needs for RAS a. only justifies a Terry seizure b. Florida v. JL (2000) i. DID NOT PREDICT FUTURE MOVEMENT ii. Anonymous tip iii. YBM iv. Bus stop v. Plaid shirt vi. Carrying gun vii. Ct. said search was INVALID b/c there was NO RAS for a stop or a frisk. 4. SEARCH EXCEPTIONS (each w/out set of elements.) a. SIVA/Belton/Gant decisions i. SIVA = as long as arrest is VALID (based on PC) and custodial (NOT de facto), search incident to that arrest is valid (dont need separate PC or RAS for search). ii. Rationales:

iii.

iv.

v.

vi.

vii.

1. Categorical exception to warrant requirement b/c of (1) police officer safety and (2) preserving evidence. 2. Police do NOT have to prove these rationales existed @ time of arrest. SIVA Issues: 1. Valid CUSTODIAL arrest 2. Scope of Search 3. Timing contemporaneous to arrest 4. Seizure of objects (PC to believe that items seized were contraband, fruits, instrumentalities or evidence of a crime) Custodial Arrest 1. Knowles v. Iowa (1998 p. 383) a. NO SIVA where citation given. b. Even where statute permitted custodial arrest 2. Atwater v. City of Lago Vista a. SIVA for minor offenses are OK as long as there is a custodial arrest. b. Custodial arrest for fine ONLY does not violate 4th Amend. 3. VA v. Moore (2008) a. Even arrest that violates state law does NOT violate 4th Amend. As long as it is supported by PC SCOPE 1. Chimel v. CA a. Grabbing area of person OK to search (wingspan) under SIVA (lunge, reach, or grasp) b. TOC, case-by-base analysis c. CANNOT walk someone around the house as a walking search warrant. 2. US v. Robinson a. Search of person and containers on person are OK under SIVA search b. More than pat down, more than Terry c. Justified by valid arrest itself TIMING 1. Has to be contemporaneous to arrest 2. US v. Chadwick (1977 p. 384) a. Must be AT LEAST a theoretical danger that arrestee might gain access to property 3. Robbins (8th Circ.) a. Coming back later for evidence was NOT a SIVA search. b. Here it was a wallet 4. Clemons (4th Cir.) a. Search of suitcase 2-3 min after arrest was OK even though arrestee was 300 yards away when search occurred. 5. Edwards (1974) a. Seizure of clothing 10 hours after arrest was OK, BUT extenuating circumstances and exigency still existed at the time of search. SIVA and CARS 1. NY v. Belton (1981) a. SIVA/Belton search of passenger compartment of car, including all closed and open containers are OK. i. DOES NOT INCLUDE THE TRUNK. b. Search MUST be contemporaneous with arrest. c. Arrestee MUST have been occupant or recent occupant of the car i. Thornton v. US (2004) ii. Belton governs even when an officer does NOT make contact until the person arrested has left the vehicle.

d. Passenger Compartment i. Whatever area is w/in a passengers reach ii. Includes: glove box, containers, and personal effects iii. DOES NOT INCLUDE: destructive searches such as ripping out door panels or tearing up carpeting e. Belton Dissent i. A preview for Gant ii. Argued that decision was NOT consistent w/ the rationales articulated in Chimel b/c it created a legal fiction that was unlikely to ever occur. iii. After arrestee is removed from the vehicle, there exists very little, if any, danger that evidence w/in the passenger compartment will be destroyed or that the arrestee will obtain a weapon from that area 2. Arizona v. Gant a. Ct. reaffirms warrant requirement view of 4th Amend. i. warrantless searches are per se unreasonable, subject to only a few welldelineated exceptions. b. Gant allows SIVA search of passenger compartment of automobile when: i. Police have reason to believe that the arrestee may reach for weapons or destroy evidence in the vehicle OR ii. Police have reason to believe that evidence of the offense of arrest might be found in the vehicle. c. Issues raised by Gant. i. What does reason to believe mean? ii. New Standard? iii. Used interchangeably w/ reasonable suspicion iv. RAS v. Hunch v. Does it invite police to leave dangerous arrestees unrestrained so they can search the passenger compartment? vi. Is there still a rebuttable presumption that arrestee can reach anywhere? Under BROWN, YES. vii. Renewed privacy interests in vehicle? viii. ^less than in a home (p. 390 SCALIA) ix. Is there a bright light rule that no auto SIVA for arrest of traffic violations? JS NO x. What if non-arrestee passengers raise risk of danger or evidence of destruction? xi. ^can use Terry frisk of car Michigan v. Long xii. ^Need RAS for weapons xiii. ^ therefore, might not need gant viii. Should Chimel (lunge, reach, or grasp) be limited to situations where arrestee might access weapons or evidence? NO SIVA once person is handcuffed? b. Protective Sweeps i. Maryland v. Buie (1990) 1. In-home arrest rule (safety issue) a. Can conduct a protective check of areas adjacent to the arrest from which attack MIGHT occur i. Broader scope than Chimel b. Can ONLY look in places where a person can hide i. Not looking for weapons OR evidence ii. ONLY looking for people. iii. However, if they find something while looking, it COULD be used as evidence ---- Plain view exception 2. Limitations of protective sweeps

a. Cursory inspection = quick look around for other people b. Short duration i. Time of arrest AND search ii. Should end once person is led out of the house to the police car iii. Lasts NO LONGER than it takes to complete the arrest and exit the premises c. Exigent Circumstances i. Warrantless search/seizure is valid if: 1. PC for search/seizure exists AND 2. Sufficient exigent cirucmstances to justify the warrantless activity. a. Police may NOT create the exigent circumstance themselves. ii. Exigencies 1. Hot pursuit a. DIFFERENT than Exigent Circumstances 2. Imminent destruction of evidence 3. Need to prevent escape 4. Risk of danger to police or other persons inside or outside the home. iii. Analysis used: 1. TOC 2. Considerations: a. Severity of warrantless intrusion. i. S. Ct. REQUIERS sufficient exigency. b. Nature of the criminal activity. c. Type of exigency d. Level of PC iv. Balancing 1. Search/Seizure Upheld a. Schmerber v. CA warrantless blood sampling in hospital is UPHELD b/c it was from a DUI. i. Blood would not retain that level. b. Cupp v. Murphy seizure of fingernail scrapings @ police station UPHELD in murder case i. b/c D was trying to rub off the evidence after officers inquired into his nails. 2. Search/Seizure INVALID a. Welsh v. Wisconsin DUI not serious enough to validate warrantless search of home. b. Vale v. Louisiana must have ACTUAL EVIDENCE that narcotics are being destroyed to justify warrantless entry into home. d. Hot pursuit exception as long as they enter the house it doesnt matter who is inside i. Warrantless entry of home is permitted when: 1. Pursuit of Fleeing felon, and a. Fleeing felon = someone the police have the PC to believe committed a felony 2. Pursuit began in public place where warrantless arrest could have been made. ii. US v. Santana pursuit from doorway to inside of house = HOT PURSUIT iii. Warden v. Hayden warrantless entry of home permitted where police had PC to believe that armed robber entered house a few minutes before. e. Destruction of Evidence i. Common Factors: 1. Degree of urgency involved/amount of time necessary to obtain warrant 2. Reasonable belief that contraband is about to be removed. 3. Danger to police while search waiting for a search warrant. 4. Possessors awareness of police presence.

5. Destructible nature of items. ii. US v. Rubin 1. Arrested A gas station and yells call my brother = police took this statement and conducted WARRANTLESS search @ Ds home. The ct. upheld search because there was SUFFICIENT PC TO BELIEVE evidence was going to be destroyed. iii. Pretextual Entry 1. Brigham City v. Stuart (2006) (p. 405) a. Officers subjective intent when entering a home without a warrant is IRRELEVANT i. Court need ONLY determine whether there is an OBJECTIVELY REASONABLE BASIS for the warrantless entry. b. Risk of danger exigency c. Safety issue f. PLAIN VIEW i. General Comments: 1. Protective sweep gets you in, the PV exception can get out the seizure. 2. PV comes in conjunction with other issues and exceptions ii. PV justified under 3 rationales (dont have to be proven) 1. No invasion of legitimate expectation of privacy a. No search, only seizure of object at issue 2. Resort to neutral magistrate under the circumstances is impractical 3. Warrant requirement does little to promote the 4th amend. In this instance. a. Seizure is different interest than search under 4th amend. iii. Elements/Requirements of PV: 1. Initial intrusion MUST be valid under 4th Amend. 2. Incriminating nature of object is IMMEDIATELY APPARENT (probable cause) 3. Officer access to the item must be valid a. Similar to elements of crimes, still TOC involved, but here all 3 elements MUST be satisfied to apply. iv. Initial intrusion 1. Most commonly arises in the: a. Execution of a search warrant b. Lawful auto stop c. Execution of an arrest warrant d. Valid warrantless arrest v. Readily apparent/ IMMEDIATELY APPARENT 1. Must have PC to be SEIZABLE 2. Arizona v. Hicks movement of objects to determine incriminating character DOES constitute a SEARCH. a. PV didnt apply b/c details were NOT readily apparent. i. Not seizable b. Police moved stereo ---- separate search c. Cannot move an object to determine, would need ANOTHER WARRANT or search/seizure is INVALID. i. Can the police call it in? ii. Depends, no real clear answer. iii. What if they didnt have to move the object? iv. ^>they would have to get a warrant or look to see if other exceptions apply, like exigent circumstances 3. Minnesota v. Dickerson PLAIN FEEL DOCTRINE a. PV extends to other senses in addition to sight b. Police MAY NOT manipulate items during a Terry frisk i. Cannot feel it further to determine what it is.

ii. ^>cannot go beyond the scope of terry frisk. c. 3rd element was not satisfied here. d. 2nd element NOT SATISFIED b/c it wasnt readily apparent. e. If pat down gives officer PC to believe that the item is contraband, etc., the officer MAY REMOVE IT f. If pat down gives officer RAS to believe that someone is WEAPON, officer may remove it. vi. Access to Item 1. Officer MAY NOT enter the home to seize an item that is viewed from outside without a search warrant or other exception a. The exigent circumstances, consent, etc. b. Allows officer to enter the home dont need plain view i. Need lawful access to the object. g. Automobile Exception i. When police have PC to believe that car contains contraband, fruits, etc; they can search ANY PART OF THE CAR that could REASONABLY HOLD seizable objects, including containers. 1. Different from Belton/Gant and Terry frisk have different rules and requirements 2. CAN INCLUDE TRUNK ii. 2 Rationales for the Exception (different from Gant, NOT REQUIRED FOR EVERY CASE) 1. Mobility of car itself very broad understanding 2. Reduced expectation of privacy in car a. Cars are so heavily regulated expectation is lowered b. Therefore 4th Amen. justifies search. iii. Carroll v. US (p 412) 1. Sets forth auto exception 2. can search car if PC to believe that it contains seizable items a. HIGHER STANDARD to get INTO car can do more w/ this exception than Gant and Terry frisk. iv. Chambers v. Maroney (p. 412) 1. Timing is NOT as important as long as they have PC to search the car. 2. Search of car @ station was OK b/c officers had PC to search car at the scene. a. Similar to search warrants v. California v. Carney mobile home 1. Search of motor home on public street is OK 2. Objective facts indicating that vehicle was being used as a means of transportation 3. Factors w/ mobile home: a. Location b. Mobility c. Licensed d. Connected to utilities e. Access to a public road 4. What if it has to be hooked up to a trailer? a. Depends. vi. California v. Acevado 1. Supreme Ct.: if police have PC to believe a container in a car is concealing contraband, they can search a container w/out a warrant. 2. Item was in brown bag IN the trunk. a. Must be readily available/apparent. 3. SCOPE of search is limited by PC for the item. 4. CANNOT search the entire vehicle if only PC for the container. vii. Wyoming v. Houghton (p. 414)

1. Holding police MAY SEARCH containers w/in scope of PC, REGARDLESS of who OWNS THE CONTAINERS. a. Containers can be jackets w/ pockets, bags, purses, etc. 2. Passengers personal belongings are fair game for an auto search if they are capable of holding the object of the search. a. CANNOT SEARCH the passenger w/out separate justification. i. RAS that A&D. viii. CONTAINER SUMMARY 1. If a container is in an automobile, the police MAY OPEN AND SEARCH if they have: a. PC to believe that car SPECIFICALLY contains seizable items OR b. PC to believe that the car contains seizable items that are capable of being held in the container 2. If the container is NOT in a car, the police MAY ONLY OPEN it if they have PC AND EXIGENT CIRCUMSTANCES (or another warrant exception applies) a. However, the police MAY seize the item TEMPORARILY 3. If they have PC to believe it contains seizable items to obtain a warrant to open it ix. Auto Exception Summary 1. Requires a. PC b. Extends to ANY PART OF THE CAR i. Including trunk and containers that may hold the subject of the search. c. Allows police MORE LEEWAY in destructive searches. 2. Gant/Belton Search a. Much more limited b. Triggered by CUSTODIAL ARREST c. Requirements: i. Reason to believe accessibility to obtain a weapon OR evidence of crime of ARREST in the car. d. Limited to passenger compartment. 3. Terry Frisk a. Limited to PASSENGER COMPARTMENT b. Requirement: i. RAS that D is armed and dangerous AND may gain IMMEDIATE CONTROL of weapons in the car. h. Consent i. Questions to ask: 1. Was the consent voluntary? a. Voluntariness 2. Must be given by someone with ACTUAL or APPARENT authority ii. Voluntariness Test 1. TOC 2. P has BURDEN of proving voluntariness a. Lack of coercion 3. Factors looked at: a. 1) Age b. IQ c. Knowledge of right to refuse d. Custody e. Nature of requests for consent f. Food/sleep deprivation g. Presence of several officers h. Show of force i. Tone of voice

j. Mendenhall Factors iii. Consent as Fruit of Constitutional Violation 1. Drayton (bus case) dicta: Ct. addressed issue indicating that invalid seizure would also invalidate consent a. NOT DECIDED bc ct. found NO SEIZURE 2. Ohio v. Robinette Ohio S. Ct: illegal seizure invalidates consent UNLESS P can show freely given and unconnected to illegality. iv. Deception & Voluntariness 1. Falsely claiming existence of search warrant invalidates consent to search. 2. If police use existing warrant to gain consent and warrant is LATER invalidated SO IS THE CONSENT. 3. Undercover operations DO NOT INVALIDATE CONSENT. v. Authority to Consent (p. 473) 1. 3rd party CAN consent if person has COMMON AUTHORITY over the property to be searched (Matlock) 2. Randolph (2006) where co-tenant is present, vocal, and refusing consent, police MAY SEARCH AND SEIZE EVIDENCE against consenting tenant, but NOT AGAINST OBJECTING TENANT. a. How long does consent or refusal last? vi. Apparent Authority (p. 486) 1. Illinois v. Rodriguez (1990) test = whether the facts available to the officer AT THE MOMENT of the warranta man of REASONABLE CAUTION in belief that the consenting party had authority over the premises. a. Dont confuse this w/ the pretext rule. vii. Scope of Consent 1. Individual can LIMIT consent in ANY MANNER. a. Ie: timing, location, etc. 2. If scope is NOT clear the test = what would the REASONABLE PERSON have UNDERSTOOD by the exchange b/w the officer and the suspect? (Jimeno) a. What is the reasonable search of a car? i. Most people DONT think they can place limitations on the search ii. What is the reasonable area? Is it the same as the automobile exception? iii. May be able to search pretty much anywhere. b. w/ consent there is NO STANDARD to ASK FOR CONSENT you can ask for it at any time. c. S. Ct. does NOT CARE if person knows they can consent or place limitations IRRELEVANT d. Attitudes have changed toward consent w/ lay people. 3. Dichiarinte (7th Cir. 1971) a. Consent to search house for drugs DOES NOT INCLUDE reading tax files. i. This is BEYOND the scope of what was given. 4. Garcia a. Consent to search a car DOES NOT include removing door panels i. Relied on state staute to allow a specific kind of search auto. viii. Withdrawing Consent 1. Individual may withdraw consent at ANY TIME during the search. a. However, need OTHER EXCEPTION TO WARRANT REQ. and SUFFICIENT PC to continue the search. b. Police MUST STOP when consent is withdrawn. i. Cannot = PC to continue search 2. US v. Carter a. Gave LIMITED consent to search duffle bag. When they came about a brown lunch bag D acted sketchy and THAT gave RAS (NOT PC) to continue search.

3. Withdrawal cannot lead to any sort of PC, RAS or any level of proof that would allow police to search & seize. xi. EXCLUSIONARY RULE 1. Remedies and Exceptions a. Mapp v. Ohio (1961) (p. 40-48) i. Mapp had the BROADEST effect on law enforcement ii. Very controversial iii. Mapp applied to EVERYONE 1. States were NOT HAPPY 2. S. Ct. said it applied EQUALLY EVERYWHERE, not just for federal officers. a. Reversed WOLF case b. More states had ADOPTED the exclusionary rule iv. Just because there was an exception to the exclusionary rule DOES NOT mean there was a constitutional violation. 1. Applied to any evidence illegally obtained. b. Purposes of Exclusionary Rule i. Applies ONLY IN CRIMINAL CASES 1. Is there a remedy for D? a. It acts as a deterrent. 2. Dismissal NOT REQ. ii. (1) acts as a deterrent of UNLAWFUL POLICE CONDUCT 1. Protecting 4th Amend. Rights of ALL CITIZENS a. the purpose of the exclusionary rule is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. Page 43 b. Are there other deterrents available besides the ER? i. General professional standards, federal and state constitutions, beyond a reasonable doubt. 2. ER provides vehicle to send case to appeal WITHOUT EVIDENCE 3. Matters because we might NOT HAVE this law in the next 5-10 years a. Some Justices said ER doesnt matter because of HUDSON i. Scalia punishing current officers w/ mistakes from the past. th 4. 4 Amend. Protects people even without ER 5. SEE SLIDE 4 PAGE 43 iii. (2) Preserve the Integrity of the Court (p. 44) a. Justice Cardozo 2. Barger says no one was really aware of 4th Amend., let alone what it meant. a. Had a HARSH impact on law enforcement. 3. Nothing can destroy a government more quickly than its failure to observe its own law, or worse, its disregard of the character of its own existence. 4. How is it balanced? a. It only means something thats there is effective enforcement. 5. Most interesting fact ER was NOT RAISED AT ANY LEVEL not a part lower Ct. decision S. Ct. raised it all on its own. 6. Legitimate argument against ER a. May result in guilty person being set free w/out a free trial. c. When ER is decided. i. MOTIONS TO SUPPRESS. 1. Req. to raise @ pre-trial hearings. ii. STANDING is the threshold issue. iii. D has initial burden. 1. Must raise issue of illegality of police action AND 2. Establish standing to contest police action.

iv. PROSECUTION then has burden to show LEGALITY or EXISTENCE OF EXCEPTION TO ER. d. Direct v. Indirect Fruits i. Police conduct illegal search of As car and discover heroin and a list of names ii. Police use list to get search warrant for As house where they find illegal drugs. 1. Direct Evidence of car search = heroin and list of names 2. Indirect Evidence of car search = drugs found at As house. a. BOTH ARE SUBJECT TO SUPPRESSION. e. Suppression Analysis i. Identify potential poisonous tress 1. Constitutional VIOLATIONS a. Search AND seizures ii. Identify Fruit 1. = evidence govt. seeks to introduce 2. Tangible evidence 3. Statements made by D. iii. Then determine if fruit comes from poisonous tree/constitutional violation iv. If the fruit DID come from a poisonous tree, do any of the exceptions to ER apply? f. Exceptions/Doctrines that limit the scope of the ER. i. Standing 1. Quote: Suppression of the product of a 4th Amend. Violation can be successfully urged ONLY by those whose rights were violated by the search itself, NOT by those who are aggrieved solely by the introduction of damaging evidence. a. Pre-Rakas: D had standing if govt. had evidence against them AT court. b. w/ respect to search & seizure i. govt. conduct may apply to the search of ONE PERSON but not every person present. 2. RAKAS case a. DRIVER has STANDING passengers CAN contest the STOP of the vehicle. b. when a car is pulled over that is a seizure. i. Dont know if its going to be a de facto arrest OR a terry frisk you DONT know what kind of stop or arrest will take place. 3. RAKAS test for standing a. Whether the person who claims the protection of the 4th Amend. Has a LEP (legal expectation of privacy) in the invaded PLACE or POSSESSORY interest in the ITEM SEIZED. i. Possessory interest DOES NOT mean ownership ii. Cts talking about search and seizure w/in 4th Amend. 4. Standing Claims a. (1) D may claim ownership or possessory interest in AREA SEARCHED. i. I.e.: car or residence ii. CONTEST the SEARCH that resulted in the discovery of the item OR b. (2) D may claim ownership or possessory interest in the ITEM SEIZED. i. May contest the SEIZURE of the item. 5. Homes and Guests a. Owner/lessee of home has standing even if not present during search of home b. If a guest in the home, ct. will consider HOW LONG and for WHAT PURPOSE the person was PRESENT. c. Overnight guests have standing in hosts home as long as LEP in place search i. Can search CERTAIN areas ii. Minnesota v. Olsen. 6. Automobile

ii. iii.

iv.

v.

a. Owner GENERALLY retains LEP in his/her auto, even when they have loaned it to another person, unless transfer of control is complete and for a substantial period of time. b. Non-owner driver of automobile will generally have LEP in those areas of the car accessible to them. c. Non-owner PASSENGER will generally NOT have LEP in most areas of the car. i. Situation in RAKAS ii. Might be able to contest SCOPE search of PERSON purse, jacket, backpack, etc hard b/c search of CONTAINER might include personal belongings. d. It really depends on WHAT IS FOUND. 7. Rawlings v. Kentucky SEARCH OF CARS (p. 136) a. Facts: i. Rawlings owned drugs in Coxs purse. ii. D challeneged SEARCH OF PURSE iii. There was no LEP in Coxs purse iv. ^ never sought or received access to purse v. Cox only knew Rawlings for a few days vi. NO ESTABLISHED RELATIONSHIP vii. D had NO RIGHT to exclude purse from others. b. How can you suppress the drugs? i. CONTEST the search of CONTAINER not search of the purse multiple searches. ii. Opening a clear bag is NOT A SEARCH. iii. ^if it is opaque you have to OPEN it to see what is inside it. c. NO STANDING to CONTEST SEARCH of the purse. 8. Standing for SEIZURE a. A person ALWAYS has standing to contest a seizure of his/her person b. Brendlin v. California (2007) passengers in car that is stopped by the police have standing to challenge the STOP. Applies only in CRIMINAL CASES Independent Source 1. Applies in TWO instances: a. (1) if police DISCOVER evidence lawfully FIRST, as well as UNLAWFULLY later b. (2) if police discover evidence unlawfully first, then discover it lawfully, INDEPENDENT of original discovery. 2. If govt. can SHOW that evidence was discovered INDEPENDENTLY then the ER will NOT APPLY and the evidence IS ADMISSIBLE. 3. Murray v. US a. Cars were legally searched and contained Marijuana. b. This would satisfy first element of Independent Source Doctrine. Inevitable Discovery 1. Issue is whether evidence WOULD HAVE, not COULD HAVE, been discovered lawfully. 2. If evidence WOULD HAVE been discovered lawfully ADMISSIBLE. Attenuation 3rd exception to ER 1. Includes 4th, 5th, and 6th Amend. 2. Only supposed to apply to INDIRECT or DERIVATIVE evidence. 3. Definition attenuation doctrine ONLY APPLIES to derivative evidentiary products. a. Direct yield of an illegality CANNOT possibly be attenuated from the illegality. b. Govt. MAY NOT use derivative or secondary evidence that is closely connected to the unlawful conduct, BUT it may use such evidence if the effect of the initial illegality has been sufficiently attenuated/dissipated.

4. Attenuation TEST a. TOC b. BROWN has 3 FACTORS: i. Question: has the CAUSAL CHAIN b/w the initial illegality been sufficiently weakened? ii. ^Look @ relationship how close is it? iii. (1) Time b/w illegality & statement/evidence. iv. ^ no time limit, BUT the longer the time b/w discovery and search, the better chance you have to suppress. v. (2) Are there any intervening circumstances? vi. ^ Miranda is common BUT in and of itself will not violate vii. (3) Purpose and flagrancy of misconduct viii. ^how bad was the violation? c. How are they relevant? Why isnt this a but-for test? i. If it is to deter police misconduct, if the d. The further the evidence is from the constitution the further the harm. i. Ct. is cautious to apply SOCIETAL HARM 5. Kaupp v. Texas a. FACTS i. Not a custodial arrest, was it a de facto arrest? ii. ^ Unlawful seizure iii. D makes unlawful statement to police b. Issue: whether attenuation doctrine should apply? i. 4th Amend. Custodial arrest w/out PC ii. D wants to suppress confession under unlawful seizure. iii. ^ if consent was valid, then there is NO POISONOUS TREE c. FACTORS OF KAUPP i. NO attenuation ii. ^No substantial time b/w removal from hoem and statement @ station. iii. ^Partially clothed state, several officers present, NO PC iv. ^ No meaningful intervening event b/w illegal arrest and confession. v. Attenuation vi. ^Miranda warnings given. vi. Hudson v. Michigan (2006)(p. 585) 2nd Category 1. Ct. recognized TWO CATEGORIES OF ATTENUATION. a. When the CAUSAL CONNECTION b/w the evidence and the unlawful govt. activity IS remote AND b. When the specific interests protected by the particularly constitutional guarantee violated would NOT be served by suppression. i. Where the interests violated have NOTHING to do with the seizure of the evidence deterrence doesnt really play into. c. Balancing d. What is at issue? i. Here: K&A rule ii. 4th Amend. Violation iii. ^ must be an exigent circumstance involved. iv. Does ER apply? 2. K&A interests under 4th Amend. a. Protection of life and limb b. Protection of property c. Protection of individuals privacy and dignity. 3. Majority the violation of these interests had NOTHING to do w/ the seizure of evidence

a. Not enough of a connection to seizure of evidence and the 4th Amend. we will NOT APPLY ER 4. Categorical rule DOES NOT APPLY to K&A violation a. Independent source here = warrant. 5. Hudson NARROWING of ER a. Scalia, Thomas, Roberts, and Alito i. DO NOT NEED ER ANYMORE ii. Forcing the public today for the sins and inadequacies of a legal regime that existed almost a half a century ago. iii. Section 1983 sometimes grants atty. Fees in civil cases. b. Gant puts limitation on law enforcement activities c. Stevens, Breyer, Souter, Ginsburg and Kennedy DISSENT i. The continued operation of the ER as settled and defined by our precedents is NOT IN DOUBT ii. Know the difference b/w 1st and 2nd category of attenuation vii. Evidentiary Exceptions 1. Applies ONLY in CRIMINAL CASES a. But NOT for parole revocation hearings b. Applies in SOME QUASI-CRIMINAL proceedings i. Civil forfeitures and tax actions (some tax actions, not all) 2. ONLY PROHIBITS admission @ trial a. NOT GRAND JURY AND NOT SENTENCING 3. IMPEACHMENT a. MUST relate to the Ds testimony on either Direct OR Cross i. Cannot impeach another witness w/ Ds statement ii. Govt. CANNOT use Ds statement to impeach someone else. b. ONLY APPLIES TO Ds that testify c. You can ask for limiting instructions for the jury. i. Can only be considered on ISSUE OF CREDIBILITY NOT as substantive evidence d. Prosecution can NEVER call the D as a witness. viii. Good Faith Exception 1. When should the ER NOT apply? a. Applies in warrant cases b. Question: Would a REASONABLY WELL-TRAINED officer have known the search/seizure was illegal despite the magistrates authorization? c. TEST: objective, based upon TOC 2. Situations when ER SHOULD APPLY a. If magistrate is MISLED by info in an affidavit that affiant KNEW was FALSE or would have known was false EXCEPT for his reckless disregard for the truth. b. Rubber stamping or magistrate NOT neutral and detached. c. Obviously lacking in indicia of PC d. Facially DEFICIENT WARRANT 3. Herring v. US (2009) a. Does the GF exception apply to police error? i. YES if error is based on SIMPLE NEGLIGENCE. ii. NO if police act w/ GROSS NEGLIGENCE, RECKLESSNESS, or there is evidence of SYSTEMATIC NEGLIGENCE b. 2-Part Inquiry i. Police error is MORE than simple negligence AND ii. Exclusion of evidence would contribute to deterrence significantly enough to justify the SOCIAL COSTS of the exclusion XIV. STATEMENTS

XV.

SUPPRESSION OF STATEMENTS a. 4th ONCE i. Fruit of poisonous tree b. 5th twice i. Voluntariness ii. Miranda c. 6th once i. Right to counsel d. CONSTITUTIONAL PROVISIONS i. Fifth Amendment: 1. No person shallbe deprived of life, liberty, or property without due process of law 2. No person shallbe compelled in any criminal case to be a witness against himself ii. Due Process 1. 5th and 14th Amendments require that statements obtained from individuals through govt. action be voluntary. iii. Rationale for VOLUNTARINESS REQUIREMENT 1. Police must obey the law while enforcing the law deter police misconduct a. Life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. i. Voices disapproval of techniques that are offensive to a civilized system of justice ii. Preserves integrity of the courts from evidence that is revolting to the sense of justice. iv. VOLUNTARINESS TEST 1. TOC (P has BOP/POE) 2. ELEMENTS a. Whether police/government actor subjected the accused to coercion; AND b. Whether the coercion was sufficient to overcome the will of the accused. 3. TOC Test factors a. Objective factors (police conduct) i. Actual or threatened physical force ii. Psychological pressure 1. Length of interrogation/detention, duration/intensity iii. Deception iv. Promises of leniency/threats b. Subjective factors (individual suspect) i. Age, education, mental condition, sobriety, familiarity with criminal justice system c. WHAT FACTORS DO. i. Reduce risk of false confessions ii. Fairness iii. Individual dignity iv. Enhance individual trust in government 4. Voluntariness ANALYSIS a. Spano v. NY i. 25 y/o, no criminal history, high school drop out, emotional instability, several officers, false friend deception, 8 hours of deception, denied 4 requests for counsel b. Keith Longtin i. 38 hours of interrogation, slept ONLY 50 mins, crime scene photos, taunting re: wifes death, suggested mental condition (split personality/insane) ii. Suggested facts iii. Confiscated cell phone iv. 45, prior assault 5. Exclusion of Coerced Statements a. Brown v. Mississippi

XVI.

i. use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process. ii. Exclusion of coerced statements is an element of the due process right itself. iii. Coerced statement may not be used for any purpose at trial (including impeachment) 6. Fruit of poisonous tree a. Can D move to suppress evidence that would not have been found but for his coerced statement? i. i.e. can an involuntary statement be a poisonous tree? ii. Generally, YES 1. Still have a standing issue. MIRANDA enforcement mechanism for the self-incrimination Clause a. Constitutional Provisions i. Fifth Amendment due process, self-incrimination. b. MIRANDA ANALYSIS i. Was the suspect subjected to: 1. Custodial 2. Interrogation ii. If yes, does an exception to Miranda apply? (public safety, routine booking, u/c activities) iii. If no exception applies, was suspect adequately read his rights? iv. If yes, did suspect knowingly, intelligently and voluntarily waive his/her rights? v. If suspect invoked right to remain silent or right to counsel, was invocation honored by police? (Moseley/Edwards rules) vi. If a Miranda violation occurred, does the exclusionary rule apply? c. Miranda v. Arizona i. Right to remain silent ii. Any statements can and will be used against you in court. iii. Right to consult with a lawyer and to have counsel present at the interrogation. iv. If the individual is indigent, counsel will be appointed for him. d. Right to Remain Silent i. Make D aware of right ii. Overcome inherent pressures of interrogation atmosphere iii. Interrogators prepared to recognize the privilege e. Anything said will be used against you in court i. Make D aware of consequences of forgoing privilege ii. Necessary for knowing and intelligent waiver of privilege f. Right to consult with Counsel i. Assure that the right to choose between silence and speech remains unfettered throughout the interrogation process. ii. By-products of counsels presence: 1. Coercion reduced 2. Statements reported accurately g. Court appointed Counsel i. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. h. Application of MIRANDA i. Applies to all suspects, regardless of background or knowledge of rights ii. No amount of circumstantial evidence that the person may have been aware of his/her rights will suffice to excuse the issuance of these warnings. iii. Once invoked, questioning must cease. 1. See right invoked (silence/counsel) for applicable standard. i. When does MIRANDA APPLY? i. Custody ii. Interrogation

iii. CUSTODY 1. Definition By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. a. OBJECTIVE TEST how a reasonable person in the suspects position would have understood the situation. 2. FACTORS (1) location, (2) time of day/night (3) length of interrogation (4) number of officers present (5) indicia of formal arrest (physical restraint, display of weapons, fingerprinting, etc.) (6) Manner in which suspect arrived at place of interrogation (7) Age of suspect JDB v. NC (2011): SCOTUS held that as long as suspects age is known or objectively apparent to a reasonable officer, it is relevant to the custody inquiry. 3. ANALYSIS a. CUSTODY i. Orozco v. TX (1969) 1. D awakened at 4 am; questioned by 4 officers in his boarding house room ii. JDB v. NC (2011) 1. 13-yr-old, special ed. Student; taken from class; 2 uniformed officers, principal and VP; questioned in closed room for 45 minutes b. NOT CUSTODY i. Oregon v. Mathiason (1977) 1. D voluntarily went to police station, told not under arrest, questioned for 30 minutes; allowed to leave after ?ing ii. Yarborough v. Alvarado (2004) 1. 17 yr-old D went to police station with parents; questioned for 2 hours; allowed to leave. 4. Traffic Stops a. Routine traffic stop does not = custody BERKEMER v. MCCARTY i. Detention is temporary and brief ii. More open than interrogation room 1. Only 1 or 2 policemen 5. Other custody cases a. Jailed suspect is usually considered to be in custody for Miranda (even if questioned about a separate charge) i. 4th/9th/11th Circuits have applied a different test for incarcerated suspects: Whether the officers conduct would case a reasonable person to believe that his freedom of movement had been further diminished. b. Probation officer interview does not generally = custody. iv. INTERROGATION 1. RI v. Innis a. Express questioning b. Functional equivalent of express questioning i. any words or actions on the part of the policethat the police should know are reasonably likely to elicit an incriminating response from a suspect. v. Interrogation exceptions 1. Routine booking questions are admissible in the absence of Miranda 2. Whether a persons name could ever be incriminating ct. didnt decideopen vi. HYPO 1. D arrested for armed robbery 2. No gun at time of arrest 3. In the police car on the way to the station 3 officers talk to each other about the gun 4. 2 in front, one in back with D 5. One office mentions school for handicapped children in the area 6. Others talk about fear that small child would pick up the gun and accidentally kill themselves.

vii. ADEQUACY OF WARNINGS 1. All individuals subjected to custodial interrogation must be read MIRANDA warnings in their entirety. 2. Not required to use exact language from Miranda. 3. Look at warnings in their entirety to determine whether rights were sufficiently conveyed a. EXAMPLE i. you have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. ii. we have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. 4. Florida v. Powell (2010) a. You have the right to talk to a lawyer BEFORE answering any of the officers questionsyou have the right to use any of these rights at any time you want during this interview. viii. WAIVER 1. Need NOT be express 2. Rebuttable presumption that NO waiver. 3. TOC voluntary, knowing and intelligent a. Voluntary = same analysis as DP b. Knowing and intelligent = awareness of nature of right AND consequences of waiver c. Facts and circumstances of case d. Background, experience and conduct of suspect ix. INVOCATION 1. Suspect must indicate his/her desire for counsel sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney a. Maybe I should talk to a lawyer. b. I think I want a lawyer before saying more. 2. AFTER RIGHTS ARE INVOKED first, look at WHAT RIGHT is invoked. a. Right to Remain Silent i. MIRANDA if the suspect states that he wants an attorney, the interrogation must cease until the attorney is present. ii. Edwards v. Arizona when a suspect invokes MIRANDA RTC, no further interrogation permitted UNTIL 1. Counsel provided (consultation and presence at interview OR 2. Suspect INITIATES further discussion with police a. Initiation i. Any comment that can fairly be said to represent a desire to engage in a discussion relating directly or indirectly to the investigation. ii. ^^Well, what is going to happen to me now? iii. Suspect must waive MIRANDA after reinitiating conversation with police iv. ^^ Initiation itself does NOT = waiver. 3. TIME LIMIT a. MIRANDA invocation of COUNSEL lasts for 14 days after a break in MIRANDA custody. i. Maryland v. Shatzer (2010) in a prison setting, returning from interrogation room to general population = break in Miranda custody. j. SUPPRESSION ISSUES i. Statements taken in violation of Miranda may be used for impeachment 1. Harris v. NY (1971) ii. Witnesses are never suppressible fruits of a Miranda violation 1. Michigan v. Tucker (1974) iii. 2nd statement cannot be suppressed as fruit of initial non-Mirandized statement 1. EXCEPT: Missouri v. Seibert (2004) mid-interrogation Miranda warnings are ineffective iv. Failure to give Miranda warnings does not require suppression of physical fruits 1. US v. Patane (2004)

XVII.

a. Missouri v. Seibert i. Issue whether the warnings reasonably convey to a suspect his rights as required by Miranda. 1. Factors: a. Completeness and detail of first interrogation; b. Overlapping content of two statements; c. Timing and setting of two interrogations; d. Continuity of police personnel; 2. Degree to which second interrogation was continuous with the first; b. IMPEACHMENT i. Statements suppressed as MIRANDA violations may be used to impeach the D if he testifies inconsistent with the statement 1. PICS ii. Post-Miranda silence may not be used against D 1. Directly or indirectly iii. Pre-Miranda silence may be used as direct impeachment if the D testifies 1. Courts are split regarding comment on or indirect use of pre-Miranda silence. k. MIRANDA EXCEPTIONS i. Public Safety Exception 1. NY v. Quarles a. Miranda warnings not req. where there is an objectively reasonable need to protect the police or the public from immediate danger. b. We think POs can and will distinguish almost instinctively b/w questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. ii. Routine Booking Questions iii. Undercover Activities SIXTH AMENDMENT RIGHT TO COUNSEL a. Massiah i. 6th is violated where the govt. deliberately elicits statements from an individual, 1. After formal criminal proceedings have begun AND 2. In the absence of counsel OR a knowing and voluntary waiver. b. When does 6th RTC attach? i. Formal Criminal Proceedings: 1. Preliminary hearing 2. Indictment 3. Information 4. Arraignment 5. Initial appearance before magistrate judge ii. Deliberate Elicitation 1. Govt. acts w/ purpose of eliciting incriminating info. 2. Govt. purposefully sets up an encounter in which incriminating info is likely to be elicited. 3. Exploiting an encounter set up by the D that the govt. knows is likely to elicit incriminating info. c. 6th Amend. WAIVER i. Brewer v. Willaims 1. Waiver intentional relinquishment or abandonment of a known right or privilege a. TOC analysis (Same as Miranda) ii. Patterson v. Illinois; Iowa v. Tovar 1. Miranda warnings are generally sufficient to provide knowledge of right to purposes of waiver (assuming knowledge of indictment or formal charge) iii. Waiver after Invocation 1. EDWARDS is the only protection against govt. approach after invocation of counsel. iv. RELEVANCE OF INVOCATION

XVIII.

1. Invocation of the 6th Amend. RTC is not necessary to trigger the protections of MASSIAH (no deliberate elicitationw/out counsel or waiver). Attachment is the trigger for this protection. 2. After Montejo, there is no additional protection when a D invokes his 6th Amend. RTC. 3. However, such invocation is a factor that the court may consider in determining whether a subsequent waiver of counsel was knowing, voluntary and intelligent. v. INVOCATION OF MIRANDA V. 6TH AMENDMENT RTC 1. McNeil v. Wisconsin Invocation of 6th RTC at judicial hearing does NOT = invocation of 5th RTC. a. Cannot anticipatorily invoke 5th RTC. b. 6th RTC is specific to the charged offense (unlike Miranda RTC which applies to all police interrogations) vi. EXCLUSIONARY RULE 1. FOPT Doctrine applies to 6th Amendment violations a. Exceptions also apply (inevitable discovery, independent source and attenuation) b. Statements may be used for impeachment (Kansas v. Ventris (2009)) d. Miranda v. 6th i. MIRANDA 1. Applies during custodial interrogation 2. Not offense-specific 3. Interrogation/functional equivalent 4. Does NOT apply to U/C interrogation 5. FOPT does NOT apply to MIRANDA violation 6. Impeachment Exception ii. 6th 1. Applies after adversarial proceedings begin 2. Offense-specific 3. Deliberate elicitation 4. DOES apply to U/C deliberate elicitation 5. FOPT DOES apply to 6th Amendment violation 6. Impeachment exception WITNESS IDENTIFICATION a. Constitutional provisions i. 6th Amen. RTC ii. 5th Amen. Due Process 1. Suppression of Identification 2. Expert Appointment/Testimony b. Suppression Issues i. Out-of-court identification (line up, photo array, show up, etc.) ii. In-court identification c. Right to counsel i. US v. Wade 1. D is entitled to have counsel present at a post-indictment lineup 2. If counsel is not present AND the D has not waive counsels presence, testimony regarding lineup is not admissible at trial. d. In-Court ID i. In-court ID is also prohibited unless prosecution can show by CLEAR AND CONVINCING EVIDENCE that in-court identification is not a fruit of the uncounseled lineup: 1. Opp. Of W to observe criminal act 2. Discrepancy b/w pre-lineup description and Ds actual description. 3. ID of another person prior to lineup 4. Photo ID of D prior to lineup 5. Failure to ID D on prior occasion 6. Lapse of time b/w criminal act and lineup 7. Conduct of the lineup

ii. Due Process 1. TEST: a. Was the identification procedure so i. Unnecessarily ii. Suggestive as to give rise to iii. A very substantial likelihood of misidentification 2. Suggestive a. Suspect much taller/shorter than others b. Suspect only one of a particular race/gender/age c. Statement by PO indicating to W that suspect is in the lineup d. Multiple simultaneous IDs e. Single person show-ups, photo IDs f. Photo array prior to line up where suspect is the only common party 3. Unnecessary a. Stoval v. denno presenting handcuffed suspect to hospitalized V was suggestive, but necessary due to urgency of situation. i. 5 white officers, 1 black male handcuffed b. Simmons v. US Using photo array instead of less suggestive ID procedure was necessary due to investigative urgency. i. Photo array is least suggestive anywaywouldnt have been suppressed. c. Neil v. Biggers show up unnecessary where line up could have been arranged. 4. Very substantial likelihood of Mis-ID a. FACTORS: i. Opp. To view ii. Degree of attention iii. Accuracy of description iv. Ws level of certainty (before or after?) v. Time b/w the crime and ID 1. Weighed against the corrupting effect of the suggestive ID procedure 2. TOC ANALYSIS 5. In-Court ID a. Even if out-of-court ID is suppressed, in-court ID may be admissible if there was no substantial likelihood of IRREPARABLE misidentification. i. Same TOC FACTORS 6. Perry v. New Hampshire pending case. iii. COMPARISON 1. 6th Amen. RTC a. Applies only after initiation of formal crim. Proceedings. b. Only applies to physical IDs. (lineup, showup) c. If counsel not present or waived, out of court ID cannot be revived. d. In court ID admissible on C&C showing of independent source 2. 5th Amen. Due Process a. Applies at all times b. Applies to all forms of ID c. Out-of-court ID can be revived with showing of reliability d. In-court ID is likewise admissible with showing of reliability.