Criminal Procedure Outline

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Criminal Procedure Amendments A. 4th Amendment Governs searches and seizures. B. 5th Amendment Governs compelled or involuntary confessions and other fundamentally unfair procedures. C. 6th Amendment Governs an individuals right to counsel. D. 14th Amendment Governs the application of the bill of rights and of principles of fundamental fairness to the States. Chapter 2 Basic Concepts What is a Search? I. Katz v. United States A. The Fourth Amendment protects people and not simply areas against the unreasonable searches and seizures. B. It becomes clear that the reach of the Fourth Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. C. Search Test 1. (Subjective) Has person exhibited actual expectation of privacy? 2. (Objective) Is the expectation of privacy reasonable? a. Normative Judgment Based upon the language of 4th Amendment and history of jurisprudence in the country. Search Factors II. Location (Most Important) Reasonable expectation of privacy A. House Expectation; Sacrosanct, will almost always be protected. B. Attached Garage/Deck/Garden Expectation 1. Part of the curtilage (anything that is attached to the house) C. Open Fields No Expectation D. Oliver v. United States No Expectation 1. Upheld Hesters Open Fields Doctrine patient a. Unoccupied and undeveloped open areas (even if enclosed and posted with no trespassing signs) have no Fourth Amendment Protection. b. By contrast, activities outside the home but on the curtilage,an areas adjacent to and intimately connected with the home, are protected. E. United States v. Dunn No Expectation 1. Open Field vs. Curtilage Factors a. Areas Proximity to the home; b. Areas ability to be distinct form the home; c. The use to which the area was made;
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d. III.
Steps taken to prevent persons from observing what lay within the area.
Assumption of Risk A. False Friends Doctrine Whether an individual assumed the risk that certain information will not be kept private. 1. Hoffa v. United States Neither this court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. 2. United States v. White The court distinguished from Katz because neither party to the telephone conversation in that case had been a willing government informant; whereas here one party was a government informant and thus consenting. B. Pen Registers Records the numbers dialed from a telephone. 1. Smith v. Maryland Police use of a pen register is not a search, because individuals using their telephones voluntarily convey numerical information to the telephone company and thus assume the risk that the company will reveal that information to the police. C. Electronic Tracking Devices 1. United States v. Knotts Nothing in the Fourth Amendment prohibited the police form augmenting the sensory faculties bestowed upon them at birth with such enhancements as science and technology afforded them in this case. 2. United States v. Karo The beeper had been used to reveal activities inside a private residence, a location not open to visual surveillance; That use invaded reasonable expectations of privacy, the beeper enabled the police to determine what they otherwise could not have known. D. Aerial Surveillance 1. California v. Ciraolo Even though the plants were growing within the curtilage of Ciraolos home, the United States Supreme court found that Ciraolo had no reasonable expectation of privacy against the airborne observations. 2. Dow Chemical Co. v. United States Where there might be protection from highly sophisticated surveillance equipment penetrating walls and windows, there was not such protection from lawful surveys from the air that did not reveal intimate domestic affairs. E. Thermal Imaging Devices 1. Kyllo v. United States The Supreme Court held that a search takes place when government agents employ a device that is not in general public use in order to explore details of a home that would previously have been unknowable without physical intrusion. F. Container Searches
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California v. Greenwood Plastic garbage bags on a public street are readily accessible to animals, children, scavengers, and snoops; therefore Greenwood did not have a reasonable expectation of privacy in bagged garbage once it was outside the home and curtilage. 2. Bond v. United States A border patrol agent did violate reasonable expectations of privacy when he squeezed soft luggage that passengers had placed in the overhead space of a bus. Property Interest Relevant factor in the privacy analysis, but usually are not dispositive. A. Rawlings v. Kentucky The Court acknowledged that ownership was one fact to be considered but emphatically rejected the notion that arcane concepts of property law ought to control the Fourth Amendment. B. Courts have declared that there is no search where police examine previously protected property in which an owner has voluntarily relinquished his or her proprietary interest. Social Custom A. Minnesota v. Olson The Court held that Olson had a privacy interest in the premises because of his status as an overnight guest. B. Minnesota v. Carter The Court held that a cocaine dealer who spent approximately two hours in the apartment of an acquaintance did not have a reasonable expectation of privacy there. Past Practices & Expectations A. OConnor v. Ortega The Court reasoned that the expectation of privacy in ones place of work has deep roots in the history of the 4th Amendment. Legality and Intimacy of Activities It makes a difference whether the individuals claiming a privacy expectation were engaging in illegal or legal activities, and whether they are intimate or completely commercial. A. United States v. Place Canine Sniff: The manner in which information is obtained is much less intrusive than a typical search; moreover the sniff discloses only the presence or absence of narcotics. Vantage Point Permits police to facilitate their observations from such public vantage points by using enhancement devices (flashlights, for example). A. Those devices must simply enable to see more clearly something that they could otherwise see without the devices. B. Where the enhancement reveals what would not otherwise be exposed to public view, a reasonable privacy expectation exists. Reduced Expectation of Privacy Signifies situations in which privacy interests are relatively small compared to the States interest in obtaining the evidence. A. The Court has found privacy expectations to be reduced in vehicles, at least where they are parked in public places, partly because the interiors of passenger compartments can be easily observed from those outside the vehicle and partly because vehicles are heavily regulated. B. The Court also found privacy expectations to be reduced in school settings.
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Subpoenas A court order to produce a person, document, or object. A. Generally considered neither a search nor a seizure; however an unreasonably broad subpoena may implicate the 4th Amendment. B. In re Schofield Required proof that each item sought by a grand jury subpoena was: 1. Relevant to the grand jurys investigation; 2. Properly within the grand jurys jurisdiction; and 3. Not sought primarily for another purpose.
What is a Seizure I. A Seizure requires the deprivation of a constitutionally protected interest. II. Seizure of a Person The interest protected is in liberty: a seizure of a person occurs when a government actor significantly interferes with a persons freedom of movement. III. Seizure of a Thing The interest protected is a possessory one: a seizure of a thing occurs when the government works some meaningful interference with an individuals possessory interests in that property. Standing Who May Complain About Searches and Seizures I. The Rakas Test A. Rakas v. Illinois The Court held that 4th Amendment violation can be successfully urged only by those whose rights were violate by the search or seizure itself, not by those who are aggrieved solely by the introduction of damaging evidence. 1. Must demonstrate that they was exercised complete dominion and control over, and the right to exclude others from, those areas. B. Questions to Be Asked 1. Was there an injury? 2. Is the injury redressable? 3. Did this litigant sustain the injury/Is this litigant the appropriate party to bring the controversy to a court? a. Must be this particular person(s) that was actually searched. II. Authority, Legality, and Standing A. Whether the defendant was legally authorized to occupy the premises searched. B. Whether the defendant was using the property/premises for illegal purposes. C. United States v. Boruff The Court denied standing to the defendant because the rental agreement between his girlfriend and the leasing company specified that she was the only legal operator of the vehicle. III. Standing in the Business Context A. Business Nexus Test The relationship or nexus of the employee to the area searched is an important consideration in determining whether the employee has standing.
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Not all circuits have adopted the Business nexus test as a bright-line rule.
The Government Action Requirement I. The search or seizure must have been accomplished by a government actor, as opposed to a private party. II. Since 1961, individuals who act on behalf of state and local governmental bodies must also abide by the limitations of the 4th Amendment. III. If a private individual conducts a search or seizure and subsequently reveals to law enforcement officials evidence obtained during such a search or seizure, that evidence is admissible if offered by the government. IV. Burdeau v. McDowell It is manifest that there was no invasion of the security afforded by the 4th Amendment against unreasonable search and seizure, when whatever wrong was done was the act of individuals in taking the property of another. V. When does a private action become government action? A. Skinner v. Railway Labor Executives Assn The answer depends on the degree of government participate in light of all the circumstances. B. Factors 1. Whether the government knew of an acquiesced in the intrusive conduct; and 2. Whether the private actors purpose was to assist law enforcement efforts rather than to further his own ends. C. Even where a private individual has acted without the encouragement, endorsement, and participation of the government, the 4th Amendment still might be implicated if the later government conduct intrudes further on the aggrieved partys 4th Amendment interests than did the private actors conduct. D. United States v. Jacobsen The Court first articulated that the additional invasions of respondents privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. Searches and Seizures Outside of United States Territory I. United States v. Verdugo-Urquidez A. The Textual exegesis suggests that the people protected by the Fourth, First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a 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 that community. Reasonableness Balancing: An Introduction and Sliding Scales I. Reasonableness Balancing Defined A. Categorical Balancing When faced with a new set of facts, the court uses balancing to craft a rule to govern that category of facts. B. This requires weighing the governments interests against the individuals interests.
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Courts typically describe the governments interest as the need to enforce criminal laws in order to protect life, liberty and property. C. If government actors engage in a traditional law enforcement search or seizure, then the warrant clause applies. 1. Warrant Clause Requires a warrant or a recognized exception to the warrant requirement as well as reasonable government action. The Limits of Reasonable Balancing A. Whren v. United States Where probable cause has existed, the only cases in which we have found it necessary actually to perform the balancing analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individuals privacy or even physical interest (i.e. Deadly Force).
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Probable Cause I. Classic Definitions: Objective Test; Individualized to a person/place Arrest At the moment the arrest was made the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Search At the moment of the search the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that there are items to be found and that those items will be found in the place to be searched. II. Proving Probable Cause: The Gates Test A. Aguilar Spanelli Original Informant Test 1. Officer must prove Two Prongs a. Informant is credible (Do you believe them?) (1) Prior Tips (2) Self Interest/Against their Interest (3) Reputation for Truthfulness b. Informant is reliable (Information reliable?) (1) Did they have Personal Observation (2) Detailed Information (3) Nature of information indicates that is from a highly reliable source. 2. The state has to present concrete information to the magistrate on both credibility and reliability. B. Gates Overruled Aguilar/Spinelli 1. Totality of Circumstances Test The previous two part test is too rigid and difficult to have police officers adhere to. 2. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis for knowledge
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of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crim will be found in a particular place. 3. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. 4. Aguilar v. Texas Sufficient information must be present to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. Suppression Motions A. Suppression Motion A written request, filed pretrial, that unconstitutionally obtained evidence be excluded from trial, never to be heard or seen by the jury. B. Courts hold generally hold that the defense has the burden of proof for searches and seizures performed pursuant to warrant, while the prosecution has the burden of proof for warrantless searches. C. Bumper v. North Carolina The prosecution has the burden of proving that consent was freely and voluntarily given in cases involving warrantless searches that the government claims were consensual. D. Franks v. Delaware The defense as the burden of proving that a search or arrest warrant affidavit contains deliberate falsehoods or falsehoods in reckless disregard of the safe. E. Simmons v. United States Testimony given by the defendant at the hearing on his motion is not admissible against him at trial on the question of guilt or innocence. Chapter 3 Warrants and Detentions
Warrant Content I. Overview of Search and Arrest Warrants A. It is increasingly clear that law enforcement activity in many circumstances need not be accompanied by a warrant. B. The information conveyed to the judicial officer, then, must demonstrate probable cause, and must be supported by an affidavit (A statement made under oath) C. Traditional Justifications for Warrant Requirement 1. A neutral and detached magistrate is better equipped to make reliable probable cause judgments than a police officer involved in the competitive enterprise of ferreting out crime; 2. The warrant itself helps to limit police officer discretion when the officer conducts a search or seizure. D. FR of Crim. Pro 41 A warrant may be sought for: 1. Evidence of a crime; 2. Contraband, fruits of crime, or other items illegally possessed; 3. Property designed for use, intended for use, or used in committing a crime; or
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4. A person to be arrested or a person who is unlawfully restrained. Franks v. Delaware 1. If the defendant can establish an intentional (or reckless) falsity in the warrant application, and if the falsity was necessary to the finding of probable cause, then evidence discovered during execution of the warrant must be suppressed. F. Franks Hearing The defendant must make out a substantial preliminary showing with an offer of proof. 1. United States v. Strube The trial court refused to hold a Franks hearing due to the defendants failure to make out a substantial preliminary showing necessary to overcome the presumption that a search warrant affidavit is valid. Particularity A. The Fourth Amendment prohibits warrants that do not particularly describ[e] the place to be searched, and the persons or things to be seized. B. In executing a warrant calling for the search and seizure of particular items, the search must end once the items are found. C. The standard applied in each case is whether the warrant contains sufficient particularities so that the officer can be reasonably certain of executing it correctly. D. Andresen v. Maryland 1. General warrants are prohibited by the 4th Amendment. 2. Coolidge v. New Hampshire The 4th Amendment addresses the problem y requiring a particular description of the things to be seized. 3. Stanford v. Texas This requirement makes general searches impossible and prevents the seizure of one thing under a warrant describing another. a. As to what is to be take, nothing is left to the discretion of the officer executing the warrant. Neutral and Detached Magistrates A. The Supreme Court has long held that issuing official must be a neutral and detached magistrate A judicial officer who has no stake in the investigation for which the warrant is sought. B. The Supreme Court has indicated that, for minor offenses at least, warrants may be issued by lay people who are neither judges nor lawyers. E.
Executing the Warrant I. Mistakes in Executing Warrants A. Maryland v. Garrison 1. While the purposes justifying a police search strictly limit the permissible extent of the search, the court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants. 2. Hill v. California
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Sufficient probability, not certainly, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers mistake was understandable and the arrest a reasonable response to the situation facing them at the time. Time and Manner of Execution (Supplement) A. FR of Crim. Pro. 41 The warrant must command the officer to: 1. Execute the warrant within a specified time no longer than 10 days; 2. Execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and a. Daytime is defined as the hours between 6:00a.m. and 10:00p.m. 3. Return the warrant to the magistrate judge designated in the warrant. B. Many jurisdictions also require that officers knock and announce before entering premises pursuant to a search warrant. C. Richards v. Wisconsin 1. Justice Stevens observed that categorical exceptions overgeneralize, because they may encompass situations that do not pose risks to officer safety or to the preservation of evidence. 2. The Court crafted this rule: To justify a no-knock entry, police must have reasonable suspicion that knocking and announcing their presence, under the circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by allowing the destruction of evidence. Treatment of Individuals During Warrant Executions A. Ybarra v. Illinois The warrant to search the tavern and its owner did not give the officers authority to search anyone else on the premises. 1. A warrant to search the tavern and all individuals found on its premises would be invalid for lack of particularity, unless there were unusual facts set forth in the affidavit that established probable cause to believe that all individuals found on its premises were involved in the criminal activity. 2. The court has held that officers executing an arrest warrant in a private home may conduct a protective sweep for individuals who might be concealed on the premises if they are in areas immediately adjacent to the location of th arrest or if there is reasonable suspicion that they are present and might pose a danger to the officers.
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Computer Searches I. Courts considering to suppress evidence on over breadth grounds generally apply a three-factor test: II. Whether the warrant set out objective standards by which executing officers could differentiate items subject to seizure from those which were not; A. United States v. Hunter The court found that the warrants authorization to seize any and all computers was a catch-all paragraph, which lacked sufficient limitation.
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To withstand an overbreadth challenge, the search warrant itself, or materials incorporated by reference, must have specified the purpose for which the computers were seized and delineated the limits of their subsequent search. B. Several lower courts have held to the contrary applying a so-called common sense approach. Whether probable cause existed to seize all items described in the warrant; and A. It is fairly well-settled that, unless the government has established probable cause to believe that an entire business is a fraud, search warrants cannot authorize all records searches at commercial premises. B. For the all records exception to apply, the affidavit must establish probable cause to believe that the target business conducted no legitimate business activities at all, and every action they took at every stage of their operations was designed only to further their fraudulent objectives. C. However, the government will generally fail to establish probable cause to seize all business records, including computer-related material, where the corporation appears to be engaged in some legitimate activity. D. The general rule against all records searches at commercial premises should similarly apply to computers located in a persons home. Whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued. A. The Manual advises that the single most important consideration in determining a search strategy is th role of the computer hardware in the offense. B. United States v. Tamura Where officers come across relevant documents so intermingled with irrelevant documents that they cannot feasibly be sorted at the site, they may seal or hold the documents pending approval by a magistrate of the conditions and limitation on further search. C. In sum, it may often be feasible for the government to describe computer-related material more particularly by articulating in the affidavit a targeted search strategy that is limited to probable cause.
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Arrests I. Levels of Encounters A. Voluntary Encounters ===> Stop (Reasonable Suspicion) ===> Seizure (Probable Cause) => Arrest (Probable Cause) II. The Requirement of Reasonableness A. Seriousness of Offense 1. The authority to arrest is given by statute, and each jurisdiction instructs law enforcement officers as to which offenses are arrestable. B. Level of Suspicion 1. Probable cause is always required for full-blown arrests, as opposed to brief stops on the street.
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Warrant Requirement The warrant requirement in the context of arrests and other seizures is governed by the location of the action. 1. If the arrest is in a public place, the police can arrest without a warrant, so long as they have probable cause. Police can also seize contraband in a public place without a warrant. 2. If the arrest or seizure takes place in a place protected by the Fourth Amendment, a warrant is required. 3. The warrant requirement is excused in exigent circumstances, but the Court has not defined exigency in any great detail. a. Warden v. Hayden 4th does not require officers to delay if to do so would gravely endanger their lives or the lives of others. b. Minnesota v. Olson Warrants may be dispensed with if there is hot pursuit of a fleeing felon, or imminent destruction of evidence or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling. D. The Use of Force 1. Levels of Force Presence ===> Verbalization ===> Command ===> Grip/Grasp ===> Infliction of (Minor) Pain ===> Use of Impact Techniques (Mace/Baton/Rubber Pellets, etc.) ===> Deadly Force 2. In making any arrest, with or without a warrant, the arresting officer may be required to use force if the suspect flees or resists. 3. Because an arrest is a seizure, the force used must be reasonable. 4. The Reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 5. Tennessee v. Garner The Court held that the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. a. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. b. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. 6. California v. Hodari D. a. If an officer shoots at an individual and misses, the Fourth Amendment does not apply because the person was not seized. b. If a person is accidentally injured during the course of a high-speed police chase, the Fourth Amendment is inapplicable because the injury was not a result of government action intentionally applied. The Requirement of Prompt Arraignment
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Gerstein v. Pugh The court held that the officers probable cause judgement justifies only a brief period of detention to take the administrative steps incident to arrest. 1. Once there is no longer a danger that the defendant will escape or commit further crimes, the Fourth Amendment requires a judicial determination of probable cause promptly after arrest. B. County of Riverside v. McLaughlin The court held that a Gerstein hearings taking place within 48 hours of arrest is presumptively reasonable. 1. A particular defendant may show that such a delay was done for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delays sake, thereby rendering the dely unreasonable. 2. Post 48 Hour The burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. Expiration of Fourth Amendment Interest After Arrest A. The Fourth Amendment interests expire once the seizure is completed and a determination of probable cause made, and an arrestee complaining about conditions of any continuing detention must rely on notions of due process or (in the case of post-conviction confinement) cruel and unusual punishment.
Stop and Frisk I. Terry v. Ohio A. The Fourth Amendment governs seizures of the person which do not eventuate in a trip to the station house and prosecution for crime arrests in traditional terminology. B. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. C. The scope of the search must be strictly tied to an justified by the circumstances which rendered its initiation permissible. D. The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. E. Right to a Terry Stop 1. Where a police officer observes unusual conduct leading to a reasonable belief, in light of experience, that criminal activity may be afoot; and a. That the persons may be armed and presently dangerous; 2. Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and 3. Where nothing in the initial stages of the encounter dispels his reasonable fear for his own or others safety;
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He is entitled, for the protection of himself and others, to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Defining Levels of Interaction A. Voluntary Encounters vs. Seizures 1. An officers request to ask a few questions does not turn the encounter into a stop unless the officers words, conduct, or demeanor would signal to an objectively reasonable person that the person is not free to leave. 2. United States v. Mendenhall a. A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. 3. Factors of Reasonable Belief of a Seizure vs. a Voluntary Encounter a. Threatening presence of several officers; b. Location of officers (I.e.: Blocking the Entrance) c. The display of a weapon by an officer; d. Some physical touching of the person of the citizen; or e. The use of language or tone of voice indication that compliance with the officers request might be compelled. B. Stop vs. Arrests Generally, Terry stops must be brief, and they must be conducted at the scene of the stop. 1. Length of Detention (Duration) a. United States v. Sharp Upheld a 20-minute detention as a Terry stop, emphasizing that during the detention officers were pursuing their investigation diligently and effectively. b. United States v. Place The detention of a suitcase for 90-minutes was deemed too long. 2. Place of Detention (Location) a. Pennsylvania v. Mimms The Court created a bright-line rule permitting officers to order drivers out of their vehicles after Terry traffic stops, as a matter of officer safety. b. Maryland v. Wilson Passengers may be ordered out as well. c. Detentions that move beyond the immediate vicinity of the stop are likely to be considered arrests. Sufficiency of Facts for Stop and Frisk A. Stops and frisks, which the Court in Terry characterized as less intrusive, can be justified by a lower level of suspicion, which is typically described as reasonable suspicion. B. Like probable cause, reasonable suspicion must be supported by articulable facts: the officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. C. Additionally, the assessment must consider the totality of the circumstances.
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Quantum of Evidence for Reasonable Suspicion 1. Brown v. Texas The court overturned a finding of a reasonable suspicion that was based solely on the defendants presence in a high crime area. 2. Illinois v. Wardlow A defendants flight from officers in a high crime area was enough to give rise to reasonable suspicion. E. Quality of Evidence for Reasonable Suspicion 1. Alabama v. White Reasonable suspicion is a less demanding standard than probable cause; reasonable suspicion can arise from information that is less reliable than that required to show probable cause. 2. On the extreme end of the unreliable information scale, an anonymous tip that lacks all indicia of reliability does not satisfy the reasonable suspicion standard. Profiles A. Profiles Information that supposedly assists police by identifying characteristics peculiar to persons engaging in criminal behavior. B. Constitutionality The Supreme Court has not articulated a clear position on profiles, Three Points can be inferred from its holdings: 1. The fact that a person matches a profile probably does not, in and of itself, give rise to reasonable suspicion; but 2. Officers (and reviewing courts) may rely in part on the cumulative law enforcement wisdom embodied in profiles when assessing the inferences that may be drawn from a persons conduct or attributes; and 3. The fact that a person matches a profile does not detract from the inferences that might reasonably be drawn. 4. Reid v. Georgia & States v. Sokolow Courts reviewing Terry stops cannot rely exclusively on the fact that an individual matched a profile, but they may defer to accumulated law enforcement experience, embodied in profiles, when they evaluate for themselves the suspiciousness of certain behaviors and characteristics that form the asserted basis for the stop. C. Profiling in Response to Terrorism PATRIOT Act 1. Authorizing the detention for questioning for up to seven days of individuals who are certified by the U.S. attorney general or the commissioner of immigration as immigrants suspected of involvement in terrorism; 2. Roving wiretaps, permitting law enforcement authorities to obtain from a special intelligence court taps on any telephone used by a person suspected of involvement in terrorism; 3. The availability of nationwide search warrants for terrorism investigations; and 4. The sharing among intelligence and criminal justice officials of certain information on investigations. D. Lawyering Strategies in a Profiling Case (Defense Of)
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Formal Profiling When officers use a specific list of factors that describe individuals likely to be involved in a particular kind of criminal activity. Informal Profiling When officers act on the basis of malleable factors that they claim to have accumulated through their own experience or the experience of others in their units. The central argument will concern the lack of individualized probable cause or reasonable suspicion by the police. Equal Protection Claim a. First; Demonstrate that a government actor treated similarly situated people differently on the basis of a suspect classification. b. Second; Establish that the governmental actor did so purposefully. Chapter 4 Searches and Seizures: Warrant Exceptions
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Warrantless Searches and Seizures Searches Incident to Arrest Per Se Basis A. Traditional Rule For many years, it was assumed that the Fourth Amendment permitted warrantless searches of arrestees and entire areas in which arrests took place. Definition: Custodial Arrest: Search incident to arrest doctrine applies to all custodial arrests, that is, a seizure of the person with the intention of thereafter having him transported to the police station or other place to be dealt with according to the law. 1. Chimel v. California Narrowed the Trad. Rule (Good Law Except for Cars) a. The court limited the scope of the search to searches of (1) the arrestees person and (2) areas within the arrestees immediate reach. (the wingspan) b. It is entirely reasonable for the arresting officer to search: (1) The person arrested to remove any weapons that might be used to resist arrest or effect escape; or for any evidence on the arrestees person in order to prevent its concealment or destruction; and (2) The area in which an arrestee might reach in order to grab a weapon or evidentiary items. c. The two justifications given for these are (1) officer safety and (2) evidence preservation. 2. Knowles v. Iowa The Court unanimously held that the doctrine applies only when a police officer actually effectuates a custodial arrest. (Cant search, then arrest, as the cop did here where he found marijuana). 3. Wingspan The area from within which the arrestee might gain possession of a weapon or destructible evidence.
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Closed Containers Such a container might contain a weapon or evidence, and thus the doctrine trumps any reasonable expectation of privacy that the arrestee might have in closed containers. 5. The search incident to arrest doctrine neither requires officers to make judgments about the risk that a particular arrestee poses, nor requires a court to evaluate such a judgment after the fact. 6. United States v. Chadwick The arrest and search must be contemporaneous. a. The search must be closely related in time to the arrest remains important. If a search needs to occur after this contemporaneous time period has expired, a search warrant is necessary. 7. Justification for Seizing an Item The officer must have probable cause to believe that the item is contraband, or a fruit, instrumentality, or evidence of a crime. Automobile Exception 1. New York v. Belton Per Se Rule (Attaches to Chimel) a. When a police officer lawfully makes a custodial arrest of an automobile occupant, the officer may search the entire passenger compartment of the vehicle incident to the arrest. b. The arresting officer may examine the contents of any containers within the passenger compartment since those containers and their contents would have been within the areas of per se control. c. The Supreme Court emphasized that its holding does not encompass the trunk. d. Thornton v. United States it held that the Belton rule applies regardless of whether the police interaction was initiated before or after the suspect left the vehicle. e. US v. Hudgins where a D voluntarily exited the automobile and begun walking away from the auto before the officer has initiated contact w/ him, the case does not fit w/in the Belton rule and will need to be viewed case by case under Chimel. Pg 340 2. Several Federal circuits have ruled that a search incident to an arrest in a vehicle must occur at the time and place of arrest to qualify as a Belton search. 3. Officers are not generally permitted to dismantle the passenger compartment by ripping out door panels and other fixtures, although they may open glove compartments and examine objects capable of holding another object. Protective Sweeps 1. The Court has created a rule permitting in every in-home arrest a protective check of areas adjacent to the arrest from which an attack might immediately be launched against the arresting officer and broader protective sweeps of specific areas in which the officer has a reasonable
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suspicion that confederates who pose a danger to the officer or others may be lurking. 2. Maryland v. Buie A protective sweep: a. Is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; and b. Should last no longer than is necessary to dispel reasonable suspicion of danger, and in any event no longer than it takes to complete the arrest and depart the premises. Exigent Circumstances Case-by-Case Basis A. Two Elements 1. Probable cause for the search or seizure exists; and 2. There are sufficient exigent circumstances to justify the warrantless activity. B. Vale v. Louisiana We decline to hold that an arrest on the street can permit its own exigent circumstances so as to justify a warrantless search of the arrestees home. C. Cupp v. Murphy The Court Considered: 1. The existence of probable cause; and 2. The severity of the intrusion (ie. Where is the arrest taking place?); and 3. The ability to destroy evidence. D. Hot Pursuit Old common law principle that permits officers to enter premises without a warrant if: 1. They are in pursuit of a fleeing felon; and 2. That pursuit began in a public place, in which officers could have made a warrantless arrest. E. Warden v. Hayden Hot Pursuit means some sort of chase, but it need not be an extended hue and cry in and about the public streets. A suspect may not defeat an arrest which has been seti in motion in a public place by escaping into a private place. F. United States v. Crespo Generally, if exigent circumstances arise as a direct result of irresponsible conduct by law enforcement officers, or as a direct result of conduct that the officers intended to create the exigent circumstances, their search and seizure activity will not be approved. G. Welsh v. Wisconsin The court invalidated a warrantless entry into Welshs home to search for evidence of drunk driving. The Court held that warrantless home entry a major invasion of privacy could not be justified by the governments interest in solving a relatively minor crime. Plain View, Touch, and Smell A. Three Elements 1. It is essential that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed;
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VI.
VII.
Its incriminating character must be immediately apparent to the officer equating to probable cause; and a. If an officer has only a hunch about the item being contraband, or even reasonable suspicion, it cannot be seized. 3. The officer must also have a lawful right of access to the object itself. Vehicle and Container Searches A. Vehicle Searches: General Rules 1. Automobile Exception Permits warrantless searches of motorized vehicles whenever law enforcement officials have probable cause to believe that fruits, evidence, or instrumentalities of criminal activity will be found therein. B. Mobility and Privacy Rationales 1. The Fourth Amendment does not require warrants for vehicles because they may disappear before a warrant can be obtained. 2. California v. Carney Factors a. Location; Whether the vehicle is licensed; Whether it is connected to Utilities; and Whether it has access to a public road. 3. Chambers v. Maroney Movable vehicles are subject to the exception even where they have been taken into police control and no longer pose a threat of mobility. There are other factors besides mobility to take into consideration such as officer safety. 4. Cardwell v. Lewis Once has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as ones residence or as the repository of personal effects. C. Containers Within Vehicles 1. California v. Acevedo the Court held that containers in cars may be searched under the automobile exception whether probable cause relates to the entire car or only to the container. 2. Wyoming v. Houghton Police may search containers within the scope of the probable cause they have developed, regardless of who owns those containers. a. Justice Scalia When there is probable cause to search for contraband in a car, it is reasonable for police officers to examine packages and containers without a showing of individualized probable cause for each one. Special Needs Searches and Seizures Those conducted for a non-criminal investigation-related purpose. In all of these we will balance the interest of the government against the interest of the individual. A. Determining Governmental Purpose 1. No Pretext Requirement: If the purported administrative purpose is just a smokescreen to circumvent the usual warrant and probable cause
18
2.
B.
C.
requirements, the search or seizure will not fall into the special needs category and will be subjected to ordinary Fourth Amendment analysis. Balancing the Interests 1. Once a court determines that a search or seizure advances special governmental needs, then it must balance those needs against the interests of individuals affected by the governmental action. 2. 1st Factor The weight of the states purported non-criminal-investigation interest must be determined. (Gravity of Concern) a. The effectiveness of the chosen means in attaining the state goals (Degree to which search or seizure advances public interest); and b. The availability of other, less restrictive alternative means for pursuing those goals. 3. 2nd Factor The degree of the individuals interest must be gauged. a. Cars and Business vs. Homes and Persons. b. Heavily monitored/Pervasively regulated industries vs. those not. c. Adults vs. Children d. Long Stop vs. Short Stop e. Patdown Search vs. Strip Search 4. 3rd Factor Limitations must be placed on the discretion of government actors. a. I.e. Clear rules in statutes, regulations, or internal administrative policies telling government actors when and how to conduct their searches. b. More police discretion, then less likely the statute will be upheld. Recognized Areas of Special Needs 1. Health and Safety Inspections a. Camara v. Municipal Court Probable cause was met if reasonable legislative or administrative standards for conducting an area inspection, such as passage of time, nature of the building, and condition of the overall area, were met, but individualized knowledge about the interior of a particular dwelling was not required. 2. Pervasively Regulated Industries a. The Court has not generally required regulatory searches to be authorized by warrants, in part because of lesser expectation of privacy in that setting. b. Where the primary purpose is regulatory, a dual purpose search or seizure will be treated as a special needs action. 3. Drug Testing a. The Court generally defers to governmental judgments about searches of children.
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b.
4.
5.
6.
New Jersey v. T.L.O. High School Students The Court found the warrantless reasonable suspicion standard as striking the appropriate balance. c. In situations not involving school children and adults whose jobs involve the safety of others, the Court has signaled that it may be unwilling to defer greatly to governmental judgments. Searching of Probationers and Their Residences a. Griffin v. Wisconsin Upheld a Wisconsin regulation permitting warrantless searches of probationers homes, so long as the searching officer had reasonable grounds to suspect the presence of contraband a violation of probationary terms. b. United States v. Knights The Court unanimously approved the warrantless search of a probationers home for purposes other than ensuring compliance with probationary terms. Border Patrol Searches and Seizures a. The court has always exhibited great deference to governmental policy decisions in circumstances involving national borders and customs. b. United States v. Martinez-Fuerte The Court stated that border checkpoints advance the governments interest in controlling the influx of illegal aliens. c. United States v. Montoya de Hernandez (1) Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. (2) Automotive travelers may be stopped at fixed checkpoints near the border without individual suspicion even if the stop is based largely on ethnicity. (3) We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband. Roadblocks a. The permissibility of each roadblock must be decided on a factintensive basis. b. Brown v. Texas The Court applied a three-prong test in upholding the check point program. (1) The gravity of the public concerns served by the seizure;
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7.
The degree to which the seizure advanced the public interest; And (3) The severity of the interference with individual liberty. c. City of Indianapolis v. Edwards The Supreme Court confirmed that the constitution forbids highway checkpoints whose primary purpose is the discovery and interdiction of illegal narcotics. (1) The Fourth Amendment requires that searches and seizures be reasonable: A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. (a) Exceptions to Individualized Suspicion i) Drug Testing Students & Govt Officials; ii) Limited administrative searches of closely regulated business; iii) DUI Checkpoints & Border Patrols (2) We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Inventory Searches a. Inventory Search One conducted by the police not for purposes of criminal investigation but rather... (1) To protect the owners property from loss or theft; (2) The police from unjustified lawsuits arising from such loss and theft while the property is in police custody; And (3) To protect the safety of the police and public by locating things in seized property that might pose a danger. (4) (For Abandoned Cars) Permitting the police to investigate, who owns the car or whether it has been abandoned. b. South Dakota v. Opperman Upheld an inventory search of a locked car that had been impounded after receiving two tickets for being illegally parked. c. Arkansas v. Sullivan The Court held that results of an inventory search could not be suppressed on the basis of an allegedly pretextual arrest. (1) The Court reiterated its position in Whren that subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. d. Colorado v. Bertine While police thus need not follow the least restrictive alternative, there still must be some restrictions on their discretion. (1) These limits are quite broad. e. Florida v. Wells Unanimously rejected the states effort to apply the inventory search exception to opening a locked suitcase where
21
(2)
the Florida Highway Patrol had no policy at all concerning when to open closed containers. VIII. Consent A. Requirement of Voluntariness 1. The Court has refused to view consent as a waiver of rights because such a view entails consequences that the Court has found unacceptable, including a requirement of detailed warnings before a valid consent may be given. 2. To prove that the consent was given voluntarily, the state must show that the consent was obtained without coercion = Voluntary. 3. Voluntariness Test Reconciles the Legitimacy of Consent searches with the requirement that they be Free from any aspect of Official Coercion. 4. Factors totality of the circumstances a. Youth of the accused; lack of education or low intelligence; and lack of any advice to the accused of constitutional rights. b. Whether the individual was in custody when consent was given; the nature of the requests for consent; and the use of physical punishment such as deprivation of food or sleep. c. Individuals lack of awareness that consent may be refused. d. The nature of police presence; police deception or misrepresentation of their ability to make the search. (1) If the police have a warrant to make search and consent was had, and then warrant was found invalid = Consent Invalid. (2) If the police do not have a warrant, but threaten to get one and consent was had, and then warrant found valid = Consent Valid. e. Undercover Operations never invalidate consent. 5. United States v. Lombardo Prison Inmates 6. Hoffa v. United States The Court held that the Fourth Amendment did not protect individuals against their own misplaced confidence in false friends. a. One assumes the risk that friends will turn out to be government agents. 7. Majority hold that Silence is a Valid Consent. B. Requirement of Authority or Apparent Authority 1. A third party can furnish consent for another person if that party has actual or apparent authority to do so. 2. Actual Authority a. Depends on whether the third party shares access to or control over the premises at issue.
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C.
D.
The doctrine rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk. c. Where property law governs the relationship, it usually governs the authority to consent as well. d. In almost all situations, either spouse may consent to a search of the family residence. e. Individuals living in shared premises can retain areas of exclusive control. Most likely, the result would depend on the degree of separation of the private area from the common area being searched. 3. Apparent Authority a. Would a reasonable police officer under the circumstances have believed that the third party had actual authority to consent? (1) If so, then valid. Scope of Consent 1. Even if officers obtain a valid consent to search, they must conduct their search within the scope of the consent. 2. Where the scope of consent is disputed, the test is an objective one: What would the reasonable person have understood by the exchange between the officer and the suspect. Withdrawing Consent 1. An individual may withdraw consent to search at any time. 2. Of course, if an officer finds incriminating items before consent is withdrawn, the plain view doctrine permits its seizure, and any subsequent withdrawal of consent would be to no avail. 3. United States v. Carter Since one has a right not to consent, neither an initial refusal nor a subsequent withdrawal of consent create inferences of guilt/probable cause/reasonable suspicion. Chapter 5 Searches and Seizures: Racism in Law Enforcement
b.
The Problem I. Profiling A. Racial profiling occurs when officers consciously or subconsciously rely on race as the sole or substantial basis for the decision to stop, arrest, or search an individual. II. Pretext A. Opponents of the practices contend that officers use their lawful traffic enforcement authority as a pretext to gain access to the interior of automobiles.
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Chapter 7 Searches and Seizures: The Exclusionary Rule Exclusionary Rule Balancing I. The Court held in Mapp v. Ohio that evidence seized in violation of a persons Fourth Amendment rights cannot be used against that person in a criminal trial. II. In subsequent cases, the Court extended the exclusionary rule to require suppression of evidence obtained through violations of Fifth and Sixth Amendment rights as well. Limitations on Excluding Fruits of the Poisonous Tree Dont call them Exceptions **state must show by a preponderance of the evidence that one of the exceptions applies. I. Inevitable Discovery A. Nix v. Williams1. Siverthorne Lumber Co. v. United States The Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived form the primary evidence. 2. Wong Sun v. United States The Question is: Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Derivative evidence generally: The exclusionary rule clearly applies to evidence that is the direct result of a violation of Ds rights (e.g., evidence is seized from Ds premises during an illegal search). But the exclusionary rule also applies to some "derivative evidence," that is, evidence that is only indirectly obtained by a violation of Ds rights. In general, if police wrongdoing leads in a relatively short, unbroken, chain to evidence, that evidence will be barred by the exclusionary rule, even though the evidence was not the direct and immediate fruit of the illegality. The concept is frequently referred to as the "poisonous tree doctrine": once the original evidence (the "tree") is shown to have been unlawfully obtained, all evidence stemming from it (the "fruit" of the poisonous tree) is equally unusable. [268] Example: Federal agents, acting without probable cause, break into Toys apartment and handcuff him. Toy makes a statement accusing Yee of selling narcotics. The agents go to Yee, from whom they seize heroin. Held, the drugs seized from Yee are "fruits of the poisonous tree," since they were seized as the direct result of the agents illegal entry into Toys apartment. Therefore, the drugs from Yee cannot be introduced against Toy, under the exclusionary rule.
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II.
III.
Inevitable Discovery If the government can prove that the evidence would have been obtained inevitably and would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. 4. Independent Source Doctrine Allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. Independent Source A. Segura v. United States The Court held that the evidence found for the first time during the execution of the warrant was admissible because it was discovered pursuant to an independent source unconnected with the invalid entry. B. Murray: The product of the illegality was not used to obtain the warrant. Police entered warehouse illegally, but got the warrant based on independent probable cause, independent of that illegal entry. Used stop of the trucks and informant tip to get the warrant and did not mention the marijuana illegally observed in the warehouse. Attenuation of the Taint A. Brown v. Illinois 1. The Court held that in the light of his lawful arraignment and release on his own recognizance and of his return voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement had become so attenuated as to dissipate the taint. a. Factors that the court uses when looking at curing the taint: 1. have Miranda rights been read 2. how much time between violation and subsequent events 3. intervening circumstances 4. how outrageous was the illegal action generally coerced confessions. 2. Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be sufficiently an act of free will to purge the primary taint. a. Done by the facts of each case. B. Hudson v. Michigan: def. said the gov. violated his 4th amendment violation by not waiting enough time for a knock and announce entry. Gov. admits the 2-3 seconds was not long enough, but it does not matter. Theres a valid warrant. Exclusionary rule is too strong. Different policy. Knock and announce is there for safety purposes. May have civil remedy. Can get no-knock warrant.
3.
Exceptions to the Exclusionary Rule I. The Good Faith Exception (Only Applicable with an Invalid Warrant) A. United States v. Leon
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Confidential informant told the police that two people, Armando and Patsy were selling drugs out of their house on Price Street. The witnessed saw drugs and the transaction, money. Informants credibility unknown. Police investigated. Police observed individuals coming and going, Del Castillo, who had an arrest history for drugs. Leon was listed on Del Castillos probation records as the employer. Leon was heavily involved in importation of drugs. Police stopped Patsy and Armondo at the airport, traveled separately. Patsy had marijuana in her suitcase. A tip also said that Leon had a large amount of drugs in his house in Glendale. Leon was living at 716 S. Sunset Canyon in Burbank. Gov. conceded that there was no probable cause. May have been probable cause to search Patsy and Armandos home. Suspicious activity linked to Leon, but not enough to establish probable cause. No suppression if there is objective reasonable reliance on a magistrates warrant. Good faith, objective, doesnt not have to do with subjective beliefs. What a reasonable police office would do even if warrant. ***Good-faith doe not apply to warrantless searches!!!!*** Reckless disregard for the truth (negligently) exclusionary rule will apply. If facially wrong, the warrant the exclusionary rule will apply Balance issues. Deters police, not magistrates. The marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. 2. The officers reliance on the magistrates probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. 3. Purpose of Exclusion Rule/Police Deterrent Balancing of individual interests and harm to gov. if excluded. Exclusionary rule is a remedy, from the common law. If the police officer does not know what they are doing is wrong, how is there a deterrent effect? Case-by-case analysis. 4. Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth. 5. The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role because in such circumstances, no reasonably well trained officer should rely on the warrant. The Criminal Case Exception A. The Court has declared that the exclusionary rule applies only in criminal trials. B. Pennsylvannia board of Probation and Parole v. Scott The Exclusionary Rule does not apply in parole revocation hearings.
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1.
II.
C.
III.
Grand Juries are permitted to examine evidence that was illegally obtained, and judges are permitted to consider illegally obtained evidence for sentencing purposes. D. Evidence that was obtained through Constitutional violations may be admitted for the limited purpose of impeaching a testifying defendant. The Impeachment Exception A. Two Limitations 1. First The Impeachment must relate either to the defendants testimony on direct examination or to questions asked by the prosecutor on crossexamination that are reasonably suggested by the defendants testimony on direct examination. 2. Second It applies only to testifying defendants: Other defense witnesses cannot be impeached with evidence suppressed by operation of the exclusion rule. a. James v. Illinois The mere threat of a subsequent criminal prosecution for perjury is far more likely to deter a witness from intentionally lying on defendants behalf than to deter a defendant, already facing conviction for the underlying offense ,from lying on his own behalf.
Does the Exclusionary Rule Work?
27
I.
II.
III. IV.
The Exclusionary Rule is Constitutionally Required A. The Court in Mapp v. Ohio (exclusionary rule applies to the states through the 14th amendment) held in part that the 4th Amendments limitations on government activity implicitly contain remedial measure. 1. According to this view, the exclusionary rule is not appropriately evaluated in terms of whether it works it simply must be enforced as a part of the constitution. B. United States v. Calandra Explicitly moved away from this position. 1. The exclusionary rule is a judicially created remedy designed to safeguard 4th Amendment rights through its deterrence effect, rather than a personal constitutional right. The Exclusionary Rule Preserves Judicial Integrity A. The courts refusal to admit evidence enables the judiciary to avoid the taint of partnership in official lawlessness; Fostering public trust in the judiciary. B. By excluding evidence wrongfully obtained, courts themselves teach lawful behavior. The Exclusionary Rule Deters Police Misconduct A. The court seeks to deter wrongful police conduct, but not to over deter. Separation of Powers A. Ratification of the separation of powers. Chapter 8 Confessions and Self-Incrimination
Best form of evidence, all elements of the crime may come in. First hand account. On the other hand, once one is obtained, the officers usually stop investigating. Due Process and Voluntariness I. Historical Background A. Brown v. Mississippi 1. Where a defendants statement is obtained by the police through means of coercion that renders it involuntary, the due process clause of the Fifth Amendment requires the trial court to exclude the statement from the defendants criminal trial. 2. The Court has also suggested that the coerced statements may not be used for impeachment purposes (to impeach testimony). B. Reasoning for Excluding Coerced Confessions 1. Deters police misconduct; 2. Voices societys disapproval for techniques so offensive to a civilized system of justice that they must be condemned; and 3. Protects the integrity of the courts from evidence that is revolting to the sense of justice. (morally wrong) 4. It violates constitutionally protected rights. C. Coerced confessions are inadmissible only if they are a product of state conduct.
II.
III.
The Totality of Circumstances Test A. Voluntariness Standard Requires a showing that the defendants statement was a product of free will. 1. Defense Issues in Fact a. Whether the police subjected the defendant to coercion; and b. Whether the coercion was sufficient to overcome the will of the accused, considering... (1) Particular vulnerabilities; and (2) The conditions of the interrogation; and (3) Regardless of guilt or innocence. The Totality Test in Practice A. Use of Force and Fear of Physical Injury 1. Arizona v. Fulminante The Court held that Fulminantes confession was involuntary because there was a credible threat of physical violence such that Fulminantes will was overborne in such a way as to render his confession the product of coercion. B. Lengthy Interrogations and Deprivation of Bodily Needs 1. In these situations, suspects become sleep deprived and may also be denied adequate food, water, and rest breaks. 2. Courts factor the length of the interrogation, and its conditions, into the totality analysis, but criticisms abound that long interrogations remain fairly common. C. Use of Other Physiological Techniques 1. Pressure Tactics The use of psychological pressures, aside from lengthy interrogations and deprivation of bodily needs, may render a confession involuntary. a. Spano v. New York The use of a child-hood friend. (1) We conclude that Spanos will was overborne by official pressure, fatigue and sympathy falsely aroused. 2. Deception In most jurisdictions, deception alone does not render a confession involuntary, but constitutes one fact or among many to be considered within the totality of the circumstances. 3. Promises of Leniency Generally speaking, an officers words of comfort and frequent assurances made to make a defendant feel more comfortable about speaking will not render a confession involuntary. a. Similarity, an officers statement that a defendant is not a criminal, combined with encouragement that the defendant unburden himself, is not by itself sufficient to overcome a suspects will. b. lynumn v. Illinois- Defendant was accused of selling marijuana. In the interrogation, the police gave her the impression that if she admitted, the charges would be dropped.
IV. V. VI.
Proving Voluntariness The Prosecution bears the burden of establishing that a confession was voluntary by a preponderance of the evidence. Causation and Government Action The Court has repeatedly required that government action must have induced, brought about, produced, or Obtained the confession. Exclusionary Rule and FOPT A. Involuntary confessions are inadmissible for any purpose, including impeaching a defendant on the witness stand. B. The FOPT doctrine presumably applies just as it does to Fourth Amendment violations, although the Supreme Court has not yet expressly so held.
Substanative Due Process: Chavez v. Martinez Martinez was shot several times. Chavez interrogated Martinez (before he died) to see if the other officer mistakenly shot him. Marinez sued Chavez saying his 5th amend. Was violated. Court said no, th 5 amendment is only invoked when in trial, a false admission is being admitted. Court said there was a 14th amendment of due process fundamental right to person. Officers conduct shocked the conscious. Custodial Interrogations and The Miranda Doctrine I. Historical Background of the Fifth Amendment A. The voluntariness requirement imposed by the due process clause must always be satisfied before a statement obtained by a government actor can be admitted in court against the maker of the statement. II. Miranda v. Arizona Miranda had a history of schizophrenia. A. Public Policy All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government state or federal must accord to the dignity and integrity of its citizens. A. The Accused must be adequately and effectively informed of his rights and the exercise of those rights must be fully honored. B. We will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. C. Miranda Rights 1. At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. 2. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. 3. The right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.
D. E. F. G.
H.
Comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning. 4. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. Any statement given freely and voluntarily without any compelling influences is admissible in evidence. Was the will of the suspect overborne? Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. Look at subject factors: age, freedom of movement, intelligence, mental ability, experience with police, length in custody and the objective reasonableness of the officers belief that the statements were voluntarily provided. Compulsion- Pressured, consequences attached to the end result (statements will be used against him) vs. voluntariness- free will. 5th amendment, right against compulsory self-incrimination.
a.
III.
IV.
Affirming Mirandas Constitutional Status A. Dickerson v. United States We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. Became a custom in society and SC did not want to say it wasnt a constitutional doctrine. 1. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Miranda Thresholds: Custody and Interrogation A. As the Court made clear in its opinion, police are not required to give Miranda warnings unless they subject a person to custodial interrogation. B. Custodial Interrogation Questioning initiated by law enforcement officers after a person has been taking into custody or otherwise deprived of his freedom of action in any significant way. C. The Definition of Custody 1. A person is not considered to be in custody unless freedom of movement is restrained in some significant way. 2. A person is in custody when formally arrested. 3. If there has been no formal arrest, an objective test is used in determining whether a person has been taken into custody or
D.
significantly deprived of freedom: How a reasonable man in the suspects position would have understood his situation. 4. Yarborough v. Alarado: 17 years old, brought to police station, told he wasnt under arrest. Gave sufficient info. Claimed his confession was without Miranda warnings. Unwillingness to look at age. Objective, how a reasonable man in the suspects position would have understood the situation. 5. Location is not determinative. Is the person cut off from the rest of the world and theres a police dominated presence. 6. Stansbury v. California Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. 7. A person detained pursuant to a routine traffic stop is not considered to be in custody, so Miranda does not apply. a. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. b. Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. 8. A jailed suspect generally is considered to be in custody, even if the questioning deals with charges unrelated to those for which the suspect is jailed. 9. Minnesota v. Murphy Holding that the Fifth and Fourteenth Amendments do not prohibit the introduction of the probationers statements. a. The Court explained that Murphy was not in custody for the purposes of Miranda because reporting to a probation officer does not involve a formal arrest or significant restraint on freedom. The Definition of Interrogation 1. Where police officer question a suspect, it is obvious that the suspect has been subjected to interrogation for purposes of Miranda. 2. Rhode Island v. Innis The Supreme Court held that words or actions by a police officer may constitute a functional equivalent to express questioning. Court said there was no misconduct here. a. The Court suggested that the test is an objective one: words or actions constitute the functional equivalent to questioning if the police should know those words or actions are reasonably likely to elicit an incriminating response. 3. Arizona v. Mauro According to the Court, a possibility does not indicate a sufficient likelihood of incrimination to satisfy the legal standard articulated in Innis.
V.
VI.
Adequacy of Warnings A. The Court in Miranda was adamant that shortcomings in the required warnings could not be compensated by a showing that the suspect was in fact fully aware of his rights. B. Thus warnings must be given to all suspects who are subjected to custodial interrogation even, presumably, judges, lawyers, and law students. C. Words that convey the rights articulated in Miranda are sufficient. Waiver of Rights vs. Invocation of Rights A. Components of a Valid Waiver 1. A suspects statement, made during custodial interrogation, cannot be admitted without a showing... a. That s/he was given Miranda warnings; b. That s/he waived Miranda right in fact; And c. That the waiver was effective. (1) Voluntary, knowingly, and intelligently 2. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. 3. A heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege. 4. Waiver in Fact a. North Carolina v. Butler The Court emphasized that the question of waiver is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived his Miranda rights. b. A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. 5. Voluntary The first prong is similar to voluntariness in confession cases: considering the totality of the circumstances, the court must find that the waiver was a product of a free and deliberate choice. 6. Knowing and Intelligent Courts must decide this issue based on particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. a. Connecticut v. Barrett A waiver can be limited in scope. B. Invocation and its Consequences 1. Invocation in Fact a. Davis v. United States The Supreme Court opted to put the burden of clarity on suspects, at least in the context in which a suspect argues that he had invoked his Miranda right to counsel.
2.
Justice OConnor An appropriate balance is stuck by requiring a suspect to articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand. Resumption of Questioning After Invocation of Rights a. The Right to Remain Silent (1) Even after a defendant invokes his Fifth Amendment right to remain silent, police may question him with respect to another offense, provided that they scrupulously honor his original decision to remain silent. b. The Right to Counsel (1) Edwards v. Arizona All government questioning must cease once a suspect exercises the Miranda right to consult with an attorney. (a) Unless the accused himself initiates further communication, exchanges, or conversations with the police. (b) A valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation. (2) The right to counsel is not right-specific, rather it is custody-specific Extends throughout the entire incident of custody. (3) Not all statements or inquiries made by a defendant to an officer should be considered an initiation of further discussion. (4) The defendants initiation of a conversation, after first invoking his rights, does not constitute a waiver per se, although it would seem to be an important factor. c. Resumption of Questioning (1) Not all statements or inquiries made by a defendant to an officer should be considered an initiation of further discussion: Drink of water; request to use telephone. (2) When a defendants statements or inquiries can reasonably be interpreted as evincing a willingness and a desire for a generalized discussion about the investigation at hand, an officer may reinitiate questioning. (3) Oregon v. Bradshaw The defendants initiation of a conversation, after first invoking his rights, does
(1)
VII.
VIII.
not constitute a waiver per se, although it would seem to be an important factor. (a) Once a defendant initiates a conversation, and removes the bar of Edwards, officers must obtain a valid waiver of Miranda rights before the defendants statements will be considered admissible. (b) Maryland v. Shatzer- Police must wait 14 days after defendant invokes right to council before questioning them again. (in the prison population). The Scope of the Miranda Exclusionary Rule A. FOPT 1. Oregon v. Elstad Limited Miranda to the exact statements or evidence obtained as a direct result of a Miranda violation. a. The Elstad rule, the indirect fruit of such a violation is not automatically excluded. b. Justice OConnor held that the second statement could be admitted, so long as the first was voluntary. c. No further purpose is served by imputing taint to subsequent statements obtained pursuant to a voluntary and knowing waiver. B. Impeachment 1. Statements obtained in violation of Miranda may be used for the purpose of impeaching the defendants trial testimony, provided that those meet usual trustworthiness standards. 2. The Defendants invocation of the Miranda right to remain silent cannot be used for impeachment purposes. 3. Doyle v. Ohio It is improper for a prosecutor to comment on a defendants postarrest silence after being given Miranda warnings. a. It is permissible for a prosecutor to comment on a defendants postarrest silence when no Miranda warnings or their substantial equivalent are given to the defendant. Miranda Exceptions A. Public Safety The Court created an exception to Mirandas requirements where police must ask questions in order to prevent an immediate danger to public safety. 1. New York v. Quarles It reasoned that the custodial interrogation had occurred in circumstances posing a danger to the public, thus raising interests that outweighed Quarles interest in being warned of his rights. a. Had the officers acted differently, the gun might have become a dangerous weapon in the hands of an accomplice or might have been found by a store employee or customer.
B.
IX.
X.
Routine Booking Practices Permits officers to ask general biographical questions during booking or pretrial services without first giving Miranda warnings. 1. Pennsylvania v. Muniz Because these questions were routine and were reasonably related to police administrative concerns, the Court held that Munizs slurred responses could be admitted against him, even though he had not received Miranda warnings before making them. Undercover Activities A. Illinois v. Perkins The Court held that there was no Miranda violation in these circumstances, explaining that conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. 1. Those concerns relate to the inherently compelling pressures generated by a police-dominated atmosphere. Cultural Factors in Motions to Suppress A. Miranda protects aliens, lawfully present or otherwise against the inherent pressures of custodial interrogation. B. The State has the burden by the preponderance of the evidence that the Defendant understood their rights and the fact they were in custody. C. Interrogation Regarding Immigration Status 1. The routine booking question exception is inapplicable where the elicitation of information regarding immigration status is reasonably likely to inculpate the respondent. D. Language of Miranda Warnings 1. Typically, the person who renders the Miranda warnings into another language need have no special qualifications. 2. A number of courts have indicated that an interpreter should be neutral and disinterested.

Criminal Procedure Outline

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Does the Exclusionary Rule Work?

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