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SEARCHESI. US v. Jones (2012)

a. GPS tracking device on underside of Jeep held to be a SEARCH (needed a warrant)b. 4th Am reflects close connection to property, which is still a valid rational alongside

the Katz R.E.P. testc. Concurrence – new tech alters REP, longer use offends this expectationd. Slightly amended by Jardines “physical invasion” – now the standard

II. US v. Miller – 4th Am does not protect info willfully revealed to a 3d partyIII. Katz v. US (1967)

a. Listening to convo was 4th Am violationb. Created objective test – reasonable expectation of privacy that society is prep’d to

recognize. Consider:i. Likelihood of exposure – what do you expect others to see/hear

ii. Policy balancingiii. Rights to access (institutional)iv. How much detail is being observed/found

c. Changing tech and circumstances impact R.E.P.DEFINING THE TEST

IV. Smith v. Maryland (1979)a. Monitoring numbers dialed on home phone through pen register at phone companyb. No REP b/c number dialed are voluntarily conveyed to 3d parties – diff from contentc. Also b/c general awareness of common purpose of ability to track #s - advertised

that ppl should contact police to track and stop harassing calls.V. US v. Dunn (1987) – CURTILAGE

a. Barn is not curtilage of the house, and thus receives no 4th Am protection; once at vantage point not req’d to shield eyes

b. Curtilage extends to area immed surrounding home that harbor intimate activity assoc w/ sanctity of home and private life, but not open fields. Factors

i. Proximity of area to home1. (subst dist btwn home and barn and not same fencing)

ii. Nature of uses1. (not being used for intimate activities assoc w/ the home)

iii. Steps taken to protect from observation1. (Did little to protect from observation – dinky fence for cows)

VI. California v. Greenwood (1988) – WILLFULLY CONVEYED TO 3d PARTYa. Going through trash not a 4th Am search b/c not an expectation society prep’d to

acceptb. Rationale applies to person’s physical characteristics

VII. US v. Kyllo – use of thermal imaging a search b/c could see what was going on inside of house, both illegal AND legal activities.

VIII. Illinois v. Caballes (2005)a. Use of drug dog during routine stop not a search (does not change char of stop)b. Discloses only presence/absence of items – no R.E.P. in contraband

IX. Florida v. Jardines (2013)a. Taking drug dog to front porch was a trespass, making the search illegalb. Violated curtilage – exceeded implied license to approach house (and knock)c. “Physical Intrusion” is now the standard.

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X. Models of 4th Am Protection – usually mix and match; lower courts apply by analogya. Probabilistic Model – chance sensible person predicts he would maintain privacy

i. Cases: Bond (luggage squeeze): Olson (overnight guest); Ciraolo (1000ft aerial observation)

ii. Reject: Caballes (drug dog at traffic stop); Misplaced Confidence casesb. Private Facts – Focus on what info gov’t collects and considers if it is private

i. Cases: Jacobsen (field test can only reveal crime or not)c. Positive Law – does some law prohibit/restrict gov’t action

i. Cases: Rakas (no property right as passenger); FL v. Riley (FAA regs)ii. Reject: Oliver v. US (open field doctrine still a trespass)

d. Policy Model – should particular practice be regulatedi. Cases: Katz, Kyllo, Hudson v. Palmer (prison cells)

APPLICATIONS OF THE TESTXI. Florida v. Riley (1989) – viewing greenhouse from 400ft in air not a violation (assuming

FAA regs were followed) b/c anyone could have observed it from that height and did not interfere w/ normal use of property (maybe diff outcome if below 400ft)

XII. See v. City of Seattle – business and commercial premises covered by the 4th AmXIII. Hudson v. Palmer – detention facilities not covered by 4th Am – inherent loss of freedom

and privacyXIV. Bond v. US – squeezing bag a search: expected bag might be moved, but not expected it

would be felt in an exploratory mannerXV. Enhancing the senses – not a search if detected with natural senses or means of

enhancement commonly available.XVI. Private areas in public places MAY be covered (see Katz)XVII. Vehicles

a. Cardwell v. Lewis – exam of tires/paint in public lot NOT infringe R.E.P.b. NY v. Class – viewing obscured VIN not a search; reaching in car was.c. Jones – physical invasion a trespss

XVIII. Hyposa. Driving to mosques w/ Geiger counterb. USPS photo’s every package and stores data – is mass aggregation and data mining a

search?c. Cell phones – usually need court order for intercepting communicationsd. Hard drives

i. Reasonableness Req – many files, mult devices at IP address, mislabeled filesii. Personal v. work computer

iii. Plain view doctrineiv. Deleted folders/files (has been held similar to trash in Greenwood v. CA)v. Ability for rummaging

SEIZURESI. Brendlin v. Cali (2007) – Seizure of People

a. “Seized” when by means of physical force or show of authority, terminates/restricts freedom of movement.

i. Req’s actual submission, but not physical restraintii. What counts as submission depends on activity before show of authority

iii. Totality of Circumstances testb. Traffic stop also subjects passenger to Seizure b/c norm not feel free to leave

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c. Cali v. Hodari – pursuit of a fleeing person is not a seizure b/c no physical force or submission to authority.

II. Arizona v. Hicks – Seizure of Propertya. Meaningful interference in possessory interest in propertyb. Act of copying serial numbers not a seizure

PROBABLE CAUSEI. Req’s/Definition

a. Search – substantial probability certain items fruit, instrumentalities, or evidence, contraband

b. Arrest – substantial probability crime committed and person committed itc. Eval of what is now probable – PC may be “stale” or “premature” – US v. Grubbsd. Scope of PC defined by definition of and scope of the law/crime being investigated

II. Establishing Probable Causea. Spinelli v. US (1969) – Overruled by Gates

i. 2 prong Aguilar Test to determ if informant’s statements establish PC1. Veracity – enough facts set forth to independently support statement2. Informant shown to otherwise be credible.

b. Illinois v. Gates (1983) – TOTALITY OF CIRCUMSTANCESi. Elements of Spinell/Aguilar only relevant considerations, not a separate test

ii. Tip itself inadequate, but corroboration estab sufficient indicia of reliability to constitute reasonable suspicion and thus permit investigative stop

iii. Here, when did PC attach?1. Got letter, verify Gates’ existence/address, flies to FL, goes to hotel,

starts to drive north, arrives home (attaches btwn last 2)iv. Standard used for search and arrest warrants, with or without informant

c. Florida v. Harris (2013)i. Use “common sense judgment” to determine if dog sniff suffic to estab PC;

not req’d to submit exhaustive evidence of dog’s credentialsii. Defendant needs opportunity to challenge evidenc/particulars of search.

d. Massachusetts v. Upton (1984) – no one piece of evidence is conclusiveIII. PC still req’s for warrantless search/seizure (Wong Sun v. US) – after the fact hearingIV. Maryland v. Pringle (2013) – PARTICULARIZED SUSPICION

a. PC deals w/ probabilities by looking at totality of circumstancesb. Must be particularized to person being searched/seized.c. Here, entirely reasonable all 3 had knowledge of and control over the drugs – could

be one person or all 3.d. Disting from Ybarra – in car, likely to have common enterprisee. Disting from DiRe – here, not singled out/admit ownership until after arrest

SEARCH WARRANTI. If have search warrant, can only be challenged if evidence supporting PC wholly lacking

or warrant obtained via fraudII. Conditional anticipatory warrant (US v. Grubbs). Req’s:

a. If triggering event occurs, fair probability contraband will be thereb. Prob cause triggering event will occur

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III. Requirementsa. Neutral and Detached Magistrate

i. Shadwick v. City of Tampa – 2 req’s for auth to issue: 1) neutral and detached; 2) capable of determ PC exists (eg – clerk)

ii. US v. Master – state judge lacked auth to issue warrant executed in diff cntyiii. US v. Davis – improper to go to 2d judge after being denied by first.

b. Particular Description of Place to be Searchedi. Okay if officer can “w/ reasonable effort ascertain and ID the place” – good

faith exception (reasonable effort)ii. Necessary level of particularity depends on the place being searched.

iii. State v. Blackburn – no doubt intended door w/ “ECURB” – couldn’t be confused about that, but could be about “#2”

iv. MD v. Garrison (1987) – 3d floor had 2apts; overbreadth understandable given bldg. characteristics

c. Particular Description of Things to be Searchedi. More particularity req’d than “place” – orig left not discretion to officer

ii. General Principle – prevent vague/exploratory searches – good faith exception (facially deficient)

iii. US v. Bradley (11th Cir) – pervasive fraud doctrine allows all records search warrant where there is a demonstrated “pattern of illegal conduct”

d. Reliance on Affidaviti. Groh v. Ramirez – description needs to be in warrant; reason – so suspect

knows limits of search as wellii. Situations that may justify reliance on elaborating language – few items on

list of many omitted; mis-described few of several items; technical mistakee. Time of Execution

i. Most juris have time limit on execution (fed – 10days)ii. State v. Miller – violated 10d period, but PC not dissipated, so no suppression

iii. Most juris allow execution only during daytime – interp broadly (eg: 10pm)iv. Gooding v. US – no special showing req’d for nighttime narcotics search

IV. Gaining Entry Into the Home to Searcha. Wilson v. Arkansas – generally have to knock and announce, unless have exigencyb. Richard v. Wilson – proving exigency is not a high showingc. US v. Banks – time req’d for wait varies, based on totality of circum (here, 15-20sec)d. Hudson v. Michigan – no suppression remedy if wait time violated

V. People on Premises During Searcha. To search, need particularized suspicion; mere propinquity does not estab PC

(Ybarra)b. Detention of Persons – relevant interests: officer safety, orderly completion of

search, concern for flight, destruction of evidencei. Michigan v. Summers – wide authority to detain ppl during search

ii. Bailey v. US – person must be in immed vicinity of searchiii. Muehler v. Mena – handcuffing for mult hours reasonable b/c gov’t interest

outweighed marginal intrusion.iv. Limits to Detention

1. If causes pain/discomfort, need to alter2. Remove restraint if reasonably apparent justification no longer exists

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VI. Intensity and Duration of Searcha. Can only look in places where items particularly described might beb. Once items found, search must cease

VII. Preference for Warrants b/ca. After-fact-bias in PC determination (“we found it so clearly there’s PC”)b. Lack of credible opponent leads to false testimony by police about circumstances

VIII. Plain View Exception – Horton v. Californiaa. “Not a search b/c it is a seizure of something already discovered”b. Inadvertence not req’d for plain view seizure – intent doesn’t matterc. Req’d Elements

i. 4th Am not violated in leading police to item – intrusion lawfulii. Lawful right of access to object itself – w/in permissible scope of intrusion

iii. Incrim character of item “immediately apparent” – a hunch is not sufficient

ARRESTSI. Warrantless arrest is the rule, and obtaining warrant is the exception.

a. Only time warrant actually req’d is for in-home arrestb. If residence of 3d party, need separate search warrant to enter that premises – need

PC to believe that suspect is there.II. Warrantless Arrest

a. US v. Watson (1976) – no warrant req’d when arrest made in public and there is PCb. Gerstein v. Pugh – need “prompt” review of PC to have extended restraingc. McLaughlin – “prompt” is usually 48hr

i. Also may violate promptness if delay was unreasonable – for purpose of gathering more info, motivated by ill-will, delay for dealy’s sake.

d. Powell v. Nevada – violation of time does not necessarily mean D must be set freee. Atwater v. City of Lago Vista (2001) – arrest can be for any offense; no

misdemeanor/felony distinction as long as it is “arrestible offense”III. Probable Cause Requirement for Warrantless Arrest

a. Rosenbaum v. Washoe County – PC must be for a particular offenseb. Devenpeck v. Alford – arresting officer’s state of mind irrelevant in determ of PC

IV. Arrest of Material Witness – Bacon v. USa. Permissible only on need-for-custody showing; based on PC, tested by:

i. Testimony that person is material – can be based on statement of officialii. May become impractical to secure presence by subpoena

V. Excessive Forcea. Graham v. Connor – objective balancing, reasonableness standard

VI. SEARCH INCIDENT TO ARRESTa. US v. Robinson (1973) – pat down after arrest valid; found crumbled cig pack w/

heroini. Policy – Need to disarm and need for add’l evidence

ii. Even if unlikely to have weapon, danger to officer during extended detainment is greater than that of relatively fleeting contact of Terry

b. Gustafson v. FL – doesn’t matter whether may arrest or have to arrest

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c. Limited by Knowles v. Iowai. If could arrest, but do not arrest then search NOT ALLOWED

ii. Threat to officer very lowiii. Need for add’l evidence doesn’t exist here (speeding violation)

d. Search Without Prior Seizure – Cupp v. Murphyi. Voluntarily appeared for questioning; blood under nails, took scraping

ii. Search valid b/c of exigent circumstances – highly fleeting evidenceVII. Prison and More Intrusive Searches

a. Full search of person/effects usually made at detention centers – upheld on 2 basis: delayed Robinson search incident to arrest; inventory search.

b. Florence v. Board of Chase Freeholders – can search anyone brought to prison, even if wrongfully arrested

c. US v. Edwards – once arrested, effects in possession at place of arrest may be lawfully searched w/o warrant, even if substantial time has passed

d. Strip Search – circuit split:i. Powell v. Barrett (11th Cir) – allowed for all inmates

ii. Jimeney v. Wood (5th Cir) – minor offense req’s reasonable suspicion of weapons or contrabadn

e. Bodily Intrusionsi. Missouri v. McNeely – no bright line for when blood draw allowed

ii. Schmerber v. Cali – need warrant for intrusion of body, unless have emergency (rule for normal intrustions)

iii. Winston v. Lee – reasonableness of intrusion a case-by-case analysis (rule for major intrusion – remove bullet from body)

iv. Maryland v. King (2013)1. DNA sampling is a lawful search – recognized social benefits and

statute is limited to prevent abuses (violent crimes, only if arraigned, only for police purposes)

2. If arrested, proper ID plays a crucial role – a more advanced form of fingerprinting

VIII. Hypo – search of cell phone after arresta. US v. Finley (5th Cir) – call records/texts found during search admissibleb. State v. Smith (Ohio) – high expectation of privacy in cell phone contents

ARREST IN HOME AND SEARCH OF PREMISESI. Roadmap

a. Entry into home to arresti. Payton – general rule – need warrant

ii. KY v. King – exigent circumstancesb. Search once in home

i. If warrant, see warrant section aboveii. Incident to Arrest – Chimel

iii. Protective Sweep – BuieII. ENTERING HOME

a. US v. Payton (1980)i. Combo 2 cases

1. PC for murder, knock, hear music, go in – not there but find bullets

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2. Son opens door, saw father on bed, enter/arrest, search door before allowing him to dress, found drugs

ii. Entry into home to arrest is a Const Violation – PC not good enough b/c of special importance placed on homes.

b. Richards v. Wisconsin – same limits as entry to search (eg: need to announce)c. Vale v. Louisiana – arrest on porch, search home NOT VALID – arrest on street does

not create exigency to enter home (no curtilage doctrine for seizure)d. US v. Santana – can attempt warrantless arrest if in doorway

i. Calling person out of their home violates Payton. – inside v. outside a tricky line

III. EXIGENT CIRCUMSTANCESa. Objectively reasonable evaluation, based on totality of circumstances.b. Lower courts have held there needs to be a belief person there (SCT has not)c. To enter under exigent circumstances, most courts require PC + Exigent Circumd. Relevant Factors:

i. Degree of urgency involvedii. Reasonable belief suspect armed

iii. Clear showing (more than PC) suspect committed crimeiv. Strong belief suspect on premisesv. Entry made peaceably

vi. Time of Entrye. Brigham City v. Stewart – state of mind doesn’t matter (entered to stop fight)f. Kentucky v. King (2011)

i. Police created exigency not a valid search (knocked, heard noises)ii. Rule – Exigency applies where entry not gained by actual/threatened 4th Am

violation1. Knock-and-announce not a police created exigency2. Does no more than ordinary citizen could do.

iii. Occupants didn’t have to open door – could have relied on 4th Am and not opened

iv. On Remand – no police-created exigency, but no exigency at all: standard noises

g. Mincey v. AZ – seriousness of offense does not create exigency (no homicide scene exigency) – probably an exigency when first happened, but prob not for re-entry

h. Welsh v. Wisconsin – arrest in home after drunk driving tip not valid – posed little remaining threat (reason for exigency dissipated)

i. Hot Pursuit Rulei. Warden v. Hayden – police not req’d to delay investigation when to do so

would gravely endanger others.j. Preservation of Evidence

i. US v. Grummel - proper to search premises to extent necessary to preserve evidence while waiting on warrant

ii. US v. Rubin – must have belief evidence presentk. Denial of consent is not an exigent circumstance.

IV. SEARCH OF HOME AFTER ARRESTa. Steagold v. US

i. Properly entered home w/ warrant to arrest, then “plain view” drugsii. Need separate warrant to search 3d party’s home.

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b. Segura v. US –PC to enter house, securing premises in good faith not 4th Am violationc. Illinois v. McArthur

i. Wouldn’t let resident back in w/o officer presentii. Restriction reasonable b/c believe house had contraband and prevent

destruction of that evidence.d. State v. Hendrix – can use subterfuge to get suspect to remove evidence to place

warrantless search allowed on showing of PC (eg: car)e. Chimel v. California – SEARCH INCIDENT TO ARREST

i. Warrantless search of entire house not justifiedii. Rule – can search area w/in immediate control of where arrestee could attain

weapons or destroy evidencef. Hufnagel – irrelevant whether arrestee can physically reach place being searchedg. Courts generally allow a 4 to 6 foot radius – doesn’t consider size of arrestee or

whether they are restrainedh. Maryland v. Buie – PROTECTIVE SWEEP

i. 2 rules1. Cursory inspection of areas near arrest where people might be located

a. Extensive limits, but still based in reasonableness (under mattress)

2. If reasonable suspicion someone else around, may search other roomsii. Must be based on articulable facts and rational inferences

i. Giacalone v. Lucas – can look in dresser drawer arrestee about to openV. Plain View Exception applies to entire in home search scenario

VEHICLES AND CONTAINERS – WARRANT EXCEPTIONSI. Roadmap

a. Whren – stop allowed for any traffic violation (allows pretext – racist issues an Equal Protection issue, not 4th Am)

b. Atwater – arrest of driver/passenger for any (arrestable) offensei. Knowles v. Iowa – if can arrest, but don’t then not able to search

c. Carney – auto exception allows search of car w/o warrant if have PCd. Acevedo – no container/vehicle distinction during searche. Gant – search incident to arrestf. FL v. Wells – inventory search, pretext not allowed

II. Traffic Stops and Arrestsa. US v. Whren (1996) – can stop auto when have reasonable suspicion traffic violation

or other crime is occurring (same standard as Terry)i. Motive never used to invalidate a search.

ii. Takes very little to uphold traffic stop (Robinson – improper lane change; Lee – straddled center line for 1 second)

b. US v. Watson – can arrest for violation if PC it occurredc. Robinson – allows search (of person) incident to arrestd. Virginia v. Moore – even if statute doesn’t allow arrest, not a 4th Am violation

(assuming still have reasonable suspicion to pull over)

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III. Search of Vehiclea. California v. Carney – AUTO EXCEPTION

i. Rationale for exception1. Ready mobility justifies lesser degree of protection – focus on

potential for movement, not likelihood2. Lesser expectation of privacy – can easily see passenger area;

pervasive regulationsii. Is RV a vehicle? – YES: licensed to operate as a vehicle, and positioned such

that reasonable observer would believe it is operating as a vehicleiii. “Objectively mobile” testiv. Applies to any car, does not depend on if crime is actually committed.

b. Chambers v. Maroney – PC of warrantless search req’d to ascertain whether search properly lmt’d in scope/intensity.

c. Moving truck w/ home possessions gets auto exception.d. Arizona v. Gant – INCIDENT TO ARREST

i. Can search car when1. Arrestee unsecured and w/in reaching distance; OR2. Reasonable to believe evidence of crime might be found in car

ii. Circumstances eval’d at time of searchiii. Holding – search not allowed; was handcuffed and in squad car for driving

with a suspended license iv. If have separate PC for vehicle/container – see Acevedo/Carney

e. Chamberlain – driving under restraint offense necessarily req’s proof of awareness, making documentary evidence potential object of search (allows search of car)

f. Florida v. Wells – INVENTORY SEARCHi. Req’s for inventory search:

1. Need standardized criteria or established routine (through statute/admin rules)

2. If follow guidelines, subjective intent of officer doesn’t matter3. Discretion allowed only if exercised according to standard criteria and

based on something more than suspicionii. Holding – did not have sufficient regulations

IV. Containersa. California v. Acevedo (1991) – VEHICLE/CONTAINER DISTINCTION

i. No distinction btwn PC for car and PC for package in the carii. Determinant is if it breaks “plane of the car” – in car no warrant req’d

iii. Limited only by reasonableness of where items of search may be hiddenb. Wyoming v. Houghton (1991) – no ownership distinction

i. If have PC for entire vehicle, no need to show individualized suspicion to search belongings of each occupant

ii. Passenger, as well as driver, have decreased expectation of privacy.iii. Holding – doesn’t matter that officer should have known purse belonged to

passenger, and not to driver.c. Illinois v. Andreas (1983)

i. Privacy interest in container diminishes after container opened by policeii. Resealing container does not restore privacy

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iii. Interruption in surveillance re-estab privacy interest when there is a “subst. likelihood contents of container have been changed” based on a workable, reasonable, and objective standard

d. State v. Brereton (WI 2013) – install of GPS (as in Jones) is disting from typical search under auto exception b/c concern is not w/ contents of the vehicle.

e. Some containers – by their very nature – cannot hold a R.E.P. – eg: gun caseV. Hypo – does Acevedo apply to all types of containers? Computer hard drive? – issue

raised but not resolved by US v. Burgess.

STOP AND FRISK (WARRANT EXCEPTION)I. Terry v. Ohio (1968)

a. May approach a person on the street and seize (not arrest) them upon showing of reasonable suspicion person involved in criminal activity – current or past

b. May subject person to limited weapons search upon showing reasonable suspicion person armed and dangerous

c. Must be based on specific and reasonable inferences; and must be confined in scopeII. Rules the same for approach and talk and traffic stopIII. WHEN IS A TERRY STOP MADE? – seizure is made

a. US v. Drayton – bus driver allows police onto bus to question passengers – not a seizure b/c no application of force, intimidating movement, brandishing of weapons, blocking of exits – a reasonable person would have felt free to leave.

b. Cali v. Hodari – pursuit of a fleeing person is not a seizure b/c no physical force or submission to authority.

c. Brendlin v. Cali – traffic stop also seizes person.d. Taking ID is not a per se seizure, but is only a consideration.

IV. HOW MUCH CAUSE IS REQ’D TO CONDUCT A “TERRY STOP”? – reasonable suspiciona. US v. Cortez – must consider totality of circumstances to estab a particularized and

objective basis (person presently or previously involved in criminal activity)b. Sibron – suspicion that person a drug addict is not enoughc. US v. Sokolow – factors estab reasonable suspicion may be set forth in a profiled. IL v. Wardlow – Officers not req’d to ignore characteristics of location, but it alone is

not suficienti. Chasing down and frisking fleeing suspect not violate 4th Am – fleeing estab

PCe. Florida v. JL – anonymous tip alone seldom demonstrates informant’s basis of

knowledge or veracity; needs to be corroboratedf. Virginia v. Harris – stopping erratic drivers based on tip allowed in most states b/c

of increased dangers and decreased invasiveness (rejection of certiorari)g. Courts are split on whether holding person’s credentials is a seizure.

V. WHEN CAN A FRISK OCCUR? – reasonable suspicion person armed and dangerousa. US v. Lewis – can order everyone out of vehicle even if driver only one under

suspicionb. Arizona v. Johnson – diff rule for known gang member not answering questions

VI. Time/Duration/Length – General Rule: long enough o achieve initial purpose of stopa. US v. Sharpe – 20-30min not too long, esp b/c it was prolonged due to evasive actsb. US v. Place – 90 minutes too long

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c. Illinois v. Caballes – an initially lawful stop can become unlawful if purpose exceeded.

d. Ohio v. Robinette – notice that seizure terminated not req’de. Temporary seizure can also apply to effects, but same rules apply

VII. Intrusiveness – how far can stop and frisk go? – generally related to investigative purposesa. Hible – state stop and identify statute not unconstitutional b/c of relation to

purpose, rationale, and demands of Terry stop.b. Mimms (can order driver out of vehicle) & Wilson (can order passengers out)c. May handcuff if necessary for officer safetyd. MN v. Dickerson – can fish around in pocket until know what object is, but once

confirmed it is not a weapon, search has to stopi. Plain Feel Doctrine – if PC something felt is evidence of crime, then can be

seized – but cannot manipulate object until you know it’s evid of a crime if you already know it’s not a weapon.

e. MI v. Long – search of auto limited to where weapon might reasonably bef. Flynn – suspect would not ID self, so got walled to look at ID; plain view of drugs –

seizure allowed.

CONSENT TO CONDUCT A SEARCH (WARRANT EXCEPTION)I. Schneckloth v. Bustamone (1973)

a. 4th Am test for consent – Voluntaryi. General test (5th and 6th Am) is Knowing, Intelligent, and Voluntary

b. Totality of Circumstances test for “voluntary”II. Relevant factors for consent (none are determinative):

a. Claim or show of authority (Bumper v. NC – cannot pretend to have warrant)b. Threat of incarcerationc. Prior Illegal Actiond. Mental/Emotional state of person (Commonwealth v. Anivoni)e. Denial of Guilt (Higgins v. US – discovery of contraband of someone who denied guilt

manifests that consent was not voluntary)f. Custody – 4th and 5th Am warning (whether they’re told they could refuse/Miranda)g. Deception – okay, as long as not too much deception (US v. Lewis)

III. Third Party Consenta. Allowed b/c not always sure what’s going on – similar to good faith exception.b. Illinois v. Rodriguez (1990)

i. Req’s reasonable belief consent given by someone who could properly give consent due to “common authority” – apparent authority suffices

ii. “Common authority” rests on mutual use of property by persons generally having joint access or control for most purposes

iii. Often comes down to whether police entitled to make reasonable assump about co-occupants R.E.P.

IV. Specific Instances of Third Party Consenta. Husband-Wife – no per se rule; assume authority exists, but can be rebutted (for

certain areas of premises) – US v. Duran

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b. Parent Childi. Child living at home – head of house can consent to search of room; maybe

diff if it is an adultii. Child may allow mere entry, but cannot consent to search of entire home

c. Landlord-Tenant – LL cannot consent to search of residence, only common areasd. Hotel Employee cannot consent to search of guest roome. Employer-Employee

i. Employer consent depends on expectation of privacy in areaii. Employee consent depends on their authority (position)

f. Joint Tenant can consent to search of entire houseg. Joint user can give consent to search (Frazier v. Cupp)

V. Limits to Third Party Consenta. Antagonism –courts split (essentially need a want to put other person in jail)

i. Gonzalez v. Valle – where have spite, no right to waive spouse’s protectionii. Martin – equal auth doesn’t lapse/revive with amicable relations

b. Defendant’s Instructionsi. If police know, search NOT allowed

ii. If police do not know, search is goodc. Refusal/Failure to Consent

i. Georgia v. Randolph (2006) – H refused, removed; W consented – invalidii. If not present to make objection, the lose out on ability to object

d. Other options if cant search – deliver evidence, give info for PC, exigencyVI. Scope of Consent

a. FL v. Jimeno – objective reasonableness; what would a normal person have understood to be the consent

b. Search of person (Rodney) – cannot be more intrusive than TerryVII. Is Second Search Allowed?

a. Nawrock – consent allowed search at any time after CAR impoundedb. Brochu – where passage of time greater and second search involved re-entry of

HOME, search not allowed.VIII. If get consent and all evidence, then warrant obtained before consent probably now

invalid.

SUPERVISORY POWER AND EXCLUSIONARY RULEI. Entick v. Carrington (Eng 1765) – every invasion a trespass, so warrants need certain

limits; basis for 4th Am.II. Weeks v. US (1914) – introduces exclusionary ruleIII. Betts v. Brady – 4th Am Exclusionary Rule does not apply to the statesIV. Wolf v. Colorado (1949) – incorporates 4th Am, but not the exclusionary ruleV. Anderson v. Creighton (1987) – qualified immunity for good faith belief search

comported w/ 4th Am – depends on officer’s mindset.VI. Heck v. Humphrey (1994) – can only bring S.1983 claim if innocent in crim caseVII. US v. Paynor (1980) – Const rights are personal (deals w/ who can ask for exclusion)VIII. MAPP V. OHIO (1961) – applies exclusionary rule to the states

a. Admitting unlawfully seized evidence encourages disobedience (goal is to deter improper police conduct)

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b. Reasons – deterrence, no civil remedy at the time, states adopting exclusionary rules, it’s part of the 4th Am

IX. Limits on the Exclusionary Rulea. US v. Leon (1984) – evidence not barred when officers acted in reasonable reliance

on what they believed to be a valid search warrant (later determ to not have PC)b. Hudson v. Michigan (2006) – announced presence at door, only waited 3-5 seconds;

NO SUPPRESSION b/c costs would outweigh benefits of suppression, nothing to deter

X. Suppression is a 2 step test: 1) is there a Const violation? 2) severe enough to warrant suppression?

FRUIT OF THE POISONOUS TREEI. Gov’t has burden to show evidence is not fruit of the poisonous tree by a preponderance

of the evidence.II. Who Can Seek Suppression?

a. Rakas v. IL – only if have R.E.P. can person seek suppression – 4th Am rights are personal

b. Rawlings v. KY – Assertion of ownership doesn’t supply standing – depends on area being searched, not ownership of item.

c. Minnesota v. Carter (1998) – No R.E.P. in apt.i. No suggestion of prev. relationship w/ apartment or owner

ii. Can have such relationship w/ workplace, but that doesn’t exist hereiii. Purely commercial transaction, over short time period

d. Olson – overnight guest has R.E.P. in premises.e. Only have the two extremes – not sure where the middle is.

III. Causationa. But For – if causal act not occur, result not occur (Wong Sun – attenuation)b. Prox Cause – direct connection btwn cause and result (Indep source and inev disc)c. Cases

i. Wong Sun – WS statements not suppressed b/c coming back to the station was due to his own decision; release from custody an intervening factor

ii. Brown v. IL – giving Miranda warnings does not per se elim causation taint – totality of circumstances evaluation

iii. US v. Crews – In-court ID not suffic related to const breach to warrant suppression

iv. NY v. Harris – warrantless arrest in home did not cause out of home statements – purpose of suppression (deterrence) not satisfied

IV. Independent Sourcea. Applies less freq than inevitable discovery b/c req’s that evidence actually be found

by a second methodb. Murray v. US (1988)

i. Broke into house, saw bales; got warrant, but didn’t rely on what they sawii. If evidences use to get warrant wholly unconnected to const. violation, then

no need to suppressiii. Needs to be “genuinely independent” – remanded on this point

c. Segura v. US – arrest in hallway, then go into apt; wait to search until warrant arrives – independent source

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d. US v. Ceccoline (1978) – Tainted Witnessi. Exclusionary Rule evoked w/ greater reluctance where involves live witness

ii. Greater willingness of witness to freely testify, greater likelihood would have been discovered by legal means.

V. Inevitable Discoverya. If P can estab preponderance of evidence that info would inevitably had been

discovered by lawful means, then no suppression.b. Nix v. Williams (Williams II) (1984)

i. Discovery of body allowed at trial – search so good they were almost to body anyways

ii. Must estab through normal police practices/what steps they would do – not necessarily have to already be underway

VI. Culpability Exception (to Suppression)a. Not quite related to qual. Imm, but getting closer.b. Herring v. US (2009)

i. Warrant recalled, but officer didn’t know until after arrest madeii. No suppression where officer not guilty of any internal wrongdoing

c. Davis v. US (2011) – lawful car search under Belton; waiting on appeal, Gant handed down – no suppression

i. Main concern is with deterrence.ii. Req’s an understanding of when cases handed down.

d. IL v. Rodriguez – no suppression b/c police thought she had authoritye. US v. Leon – have warrant, but turns out no PC, no suppression

VII. Cases suggest SCT expanding “good faith” exception, but not sure how far it reaches.

UNDERCOVER INVESTIGATION (Warrant Exception)I. Not a 4th Am violation to use an undercoverII. Focus is on HOW police use undercovers, not when they can be usesIII. Misplaced Confidence Rationale

a. Hoffa v. US (1961)i. Voluntarily convey info to 3d party – do something illegal and tell ppl, you

take the riskii. Hoffa relying on security of hotel suite, but Partin not enter through stealth,

force, or as an eavesdropperb. US v. White – reaffirmed Hoffa after Katz

i. Diff btwn Hoffa and Katz – voluntarily and knowingly conveyed to 3d partyii. No difference if convo recorded – prob better b/c more reliable.

c. Gouled v. US – can come in and listen, but CANNOT searchIV. Entrapment

a. Criminal Law defense; defendant’s burden to show that “criminal design originated w/ undercover and was implanted into mid of innocent person”

b. Sorrels v. US (1932)i. Multiple references to alcohol and undercover offered to buy for him

ii. Entrapment – Cong not intend to prohibit possession in such a contextc. Sherman v. US (1958)

i. Several accidental meetings; appeal to emotion of overcoming addictionii. Entrapment occurred – criminal conduct product of gov’t action

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iii. No evidence of pre-disposition: multi-year old conviction insufficient, and was trying to overcome addiction

d. 2 approachesi. Subjective (Sorrels, feds, majority of states) – focus on whether gov’t actually

caused D to commit crimes; factual inquiry based on particulars of Dii. Objective – focus on whether gov’t conduct goes too far; social policy Q

V. Predisposition (Inducement)a. Gov’t burden to show that D had a state of mind which readily responded to

opportunity furnished by the gov’tb. US v. Gendron - req’s opportunity plus something else

i. Examples on p 485-86ii. Incl. threats, play to sympathies, repeated suggestion of hard times

c. US v. Jacobson (1992)i. Entrapment existed; gov’t failed to show predisposition (and that

predisposition was not the result of gov’t action)ii. Need more than “generic inclination”

MIRANDAI. Background to Miranda

a. Voluntariness Standard (Confessions Wrongfully Attained)i. Totality of Circumstances approach under Due Process

ii. Combo aspects of suspect’s personal characteristics and the manner of interriii. Req’s a showing that coercive conduct overbore defendant’s will.iv. Primary basis was “untrustworthiness” of coerced confessions.v. McNabb-Mallory Rule – if detained for long period of time btwn arrest and

prelim hearing, then confessions during that time not admissible1. 3501(c) – 6hr unless otherwise proven reasonable.2. Now have strong protections under Miranda, so rule not really used.

b. Evolution of Right to Counseli. Croker v. Cali (1958) – no right to counsel at state level

ii. Spano v. NY (1959) – once formally charged, right to counsel you obtainiii. Townsend (1963) – shifts focus to circum of interrogation.iv. Massiah (1964) – once formally charged, right to counsel attachesv. Escobedo v. IL (1964) – “focus of investigation” gets counsel.

II. MIRANDA V. ARIZONA (1966)a. When does Miranda apply? – custodial interrogation; testimonyb. The Rights

i. Right to Remain Silent1. Silence cannot be used against you (FN37) – not told to suspect

ii. What is said can and will be used against you 1. Ensures full understanding of adversarial setting (know consequence)

iii. Right to an Attorney – before and at interrogation (interr can easily overbear suspect)

iv. State will provide attorney if you don’t have one or cannot afford one1. Might otherwise be understood as meaning only get your own

c. Must read D all their rights – even if they say stopi. Can’t presume knowledge

ii. Exception – if know they have attny or wealthy enough (FN 43)

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d. Warnings only have to be given if gov’t intends to use statements at trial.e. Congress and states can exercise own rule-making to achieve protections, but have

to be “at least as effective”i. Duckworth v. Eagan (1989) – “if and when” go to court – NOT ILLEGAL b/c

touches all req’d basesii. When giving rights in heat of the moment, expected might be some variation

in delivery.f. Evoking either right causes interrogation to stop.

III. Waivera. Silence is not waiverb. Gov’t has burden to show D knowingly and intelligently waived privilegec. State v. McKnight – encourages exploiting ignorance/stupidity to get waiverd. Implied Waiver – waiver can be inferred from conduct

i. CT v. Barrett – ambiguous actins not suffic; desire for counsel did not serve as invocation for all purposes.

ii. Fare v. Michael C. – request to see probation officer is not a request for counsel b/c of special role played by counsel in adversarial process.

e. Colorado v. Spring – suspect does not need to know the subject matter of the questioning

IV. When Does Miranda Apply? – custodial Interrogation; testimonial evidence onlya. CUSTODY REQUIREMENT

i. 2 Prongs – “feel free to leave” and coercion of police station.ii. Objective Test – would reasonable person believe themselves to be in

custody?1. Officer’s subjective and undisclosed views irrelevant (Stansbury)2. Might be different if views were communicated to suspect3. Questioning on street not custody – Terry stop, traffic stop – don’t

have the inherent coercion of police domination.4. Diff if there are “special circumstances” – eg: gun drawn

iii. JDB v. North Carolina (2011) – age exception1. Age should be taken into account in reasonable person determination

– can be accounted for w/o damaging subjective nature of analysisiv. Illinois v. Perkins (1990) – PRISON INMATE

1. Placing agent w/ inmate doesn’t require Miranda warnings2. Lacks police dominated atmosphere and compulsion

v. Howes v. Fields (2012)1. Interviewed about something not in jail for; told he could leave2. No Miranda Warnings req’d b/c not inherently coercive (could leave)

vi. Where is Custody triggered? (Hypo)1. Consensual encounter – NO2. Traffic Stop – NO3. Invitation to station, 30min interview, told not under arrest – NO4. Invitation, 30min, nothing about arrest – MAYBE, use totality test5. Invitation, 5hr interr, nothing about arrest – YES6. Taken to police station – YES

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b. INTERROGATION REQUIREMENTi. Rhode Island v. Innis (1980) – definition of interrogation

1. Evokes right to counsel, back of squad car; officers talking about wanting to find gun b/c of handicapped children in area – Innis interrupts and takes them to gun.

2. Not a Miranda Interrogation3. Rule – express questioning or functional equivalent, that police should

know are reasonably likely to elicit an incriminating response.4. In part depends on suspect’s personality.

ii. Arizona v. Mauro – not a Miranda violation to allow suspect to speak with wife (also a suspect) in presence of officer and tape recorder in plain view.

1. Not likely there’d be incrim statements – no coercion or compelling influence

c. TESTIMONIAL EVIDENCE REQUIREMENTi. Related to conveying what is in one’s mind.

ii. Pennsylvania v. Muniz (1990) – Routine Booking Exception1. First 7 Qs admissible – failure to articulate proper speech is not

testimonial – doesn’t look into mind of suspect, but is only a physical characteristic

2. 6th B-Day Question testimonial b/c could infer confused mental state from answer

3. Statements made during field test admissible b/c Qs carefully scripted and not intended to illicit response.

iii. Heibel (2004) – Identity is so insignif and universal, only incriminating in unusual circum

iv. NY v. Quarles (1984) – PUBLIC SAFETY EXCEPTION1. Statements leading to gun allowed b/c of overriding public safety2. Still have due process protection for statements3. (Essentially irrelevant b/c of Chavez and Patane)

V. Right to Remain Silent – How Applieda. Level of Protection – Michigan v. Mosley – cease immed, but can come back later

i. Admissibility of subsequent questions depends on whether right to cut off questioning honored

ii. 3 basic req’s: immed cease interr; signif period of time; new warnings giveniii. Here, Qs focused on crime of specific nature, time, place, occurrence diff from

that of prev. interrogation.b. Waiver Standard – Berghuis v. Thompkins – more req’d to invoke than to waive

i. Invocation of rights must be Unambiguous – same as right to counselii. Not talking is not invoking the right

iii. Answering the “god” question is waiver, b/c knowingly, intelligently, and voluntarily answered.

VI. Right to Counsel – How Applieda. Level of Protection – Edwards v. Arizona –can only be subject to further questioning

if suspect initiates himself.b. What counts as initiating further communication? – Oregon v. Bradshaw –

“willingness to discuss”i. Back of car: “what happens to me now?”

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ii. Only “generalized discussion” which means Edwards/Miranda not indicated1. Asking for water generally not a “willingness to talk”

iii. 2 steps: initiates convo (repudiates right to counsel and takes back to ground zero), then must waive rights.

iv. Case estab. a broad standard for “willingness to discuss”c. Asserting the Right – Davis v. US (1994)

i. Must unambiguously request counselii. If suspect only hints at a lawyer, the prosecutor can back off the ledge

(consider in re State v. McKnight)d. Not Crime Specific – Arizona v. Roberson – after evoking right, cannot be interr about

other crimei. Concern w/ coercion extends to any questions, not just about that crime.

e. Minnick v. Mississippi – protection continues after initial consultation w/ lawyer; lawyer gets to be there for everything.

f. Maryland v. Shatzer (2010) – break in custody ends evocation of Mirandai. Bright Line Rule – 14 days

ii. Can occur in prison population.VII. Remedies – a lot narrower than normal Const violations

a. No Fruit of the Poisonous Tree Doctrine – Oregon v. Elstadi. Arrested/questioned at home w/ no Miranda; taken to jail, given Miranda

ii. First confession is a clear Miranda violationiii. No Suppression for second statement – warnings properly given

b. Suppression of Subsequent Statements -- Missouri v. Seibert (2004)i. Gets confession w/o Miranda, leaves room for 30-40min, returns and gives

Miranda, confronted w previously made incrim statementii. Suppresses confession b/c midstream warning did not comply w/ Const req

iii. Focus is on officer’s intent and whether warnings could effectively function.iv. Considerations – essentially, is it the same questioning?

1. Completeness fo first round of questioning2. Overlapping Nature of questions3. Time/Setting4. Continuity of personnel5. Degree to which questions the same.

v. This is the current guidance for “2 Step” remedy1. If try to take advantage of Elstad, then breach Siebert2. Focus is on intent of officers.3. If intent is to circumvent, then look at effectiveness of warnings.

c. Chavez v. Martinez (2003) – only get suppression/Miranda only violated when seek to use statements at trial

i. Charges not filed, so no Miranda violationii. Also no due process issue – ceased Qs when doctors were working.

d. US v. Patane (2004) – non-testimonial evidencei. No Miranda given, questioned about handgun - NO EXCLUSION

e. Effect of Chavez + Patanei. If invokes right, can keep questioning, but cannot use statements – only use

physical evidence (as long as no due process violation)ii. Will use depending on need for physical v. testimonial evidence.

f. Exception –can be used at trial to impeach witness – Harris v. NY.

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INTERROGATION OUTSIDE OF MIRANDA (NON-CUSTODIAL or WAIVER)I. Due Process voluntariness test

a. Most interrogation techniques (eg: trickery) still valid after Mirandab. Miller v. Fenton (3d Cir 1986)

i. Statements Voluntary if will was not overborne, consid totality of circumii. Lies must be analyzed in context to determ how manipulative.

iii. Most courts – cannot outright lie, but can stretch/pretend – appeal to religionc. State v. Cayward – cannot falsify docsd. Arizona v. Fulminante (1991) – promise to protect prisoner deemed coercione. Colorado v. Connelly (1986) – Coercive police action necessary for involuntary; D’s

state of mind is not alone sufficientf. Salivian v. Texas (2013) – Can uses silence against suspect during non-custodial

interrogation – diff if invoked Miranda (Oakton)g. Commonwealth v. Mahnke (Mass 1975) – Rules apply to interr by private citizens

GIDEON RIGHT TO COUNSEL (APPOINTED COUNSEL)I. Historical Progression

a. Powell v. AL (1932) – “such as this”; extreme facts of case warranted counselb. Johnson v. Zerbst (1938) – guaranteed right to appointed counsel for federal Dc. Betts v. Brady (1942) – states only req’d to appoint counsel when would otherwise

be “fundamentally unfair”d. Bute v. IL – flat req for capital cases; incl. arraignment (Hamilton v. AL)

II. Gideon v. Wainwright (1963)a. Abandons capital/non-capital distinction for appointed counsel in felony cases.

III. Extending Gideona. Argersinger v. Hamlin (1972) – removes felony/misdemeanor line – if subject to jail,

all cases get counselb. Scott v. IL (1979) – must have actual imprisonment for counsel; not suffic that it

“may” be imposedc. AL v. Shelton (2002) – suspended prison term req’s counsel – if prison triggered,

jailed for underlying offense, not for violating probation.d. Nichols v. US (1994) – uncounseled conviction in 1 case can be used in 2d case, even

if jail imposed in 2d case.IV. Delivery Systems

a. 1964 Criminal Justice Act – fed dist cts have to adopt local plan which must incl. appointment of private attny; also allowed for alternative systems to be incl.

b. States vary – choice made by group providing funding, not courtsV. Indigence – most juris have legislation/court rules setting (financial) standardsVI. Reimbursement

a. ABA Standard – only when used fraud to get attnyb. Fuller v. OR (1974) – upheld recoupment statute auth repayment on condition of

probation, but only for those who could repay.c. James v. Strange (1972) – statute mandating recoupment invalid

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VII. When Does the Right Attach?a. Rothgery v. Gillespie County (2008)

i. Right attaches w/ “initiation of adversarial judicial criminal proceedings,” determ by when gov’t commits self to prosecute and suspect finds self faced with prosecutorial forces.

ii. Counsel must be appointed w/in reasonable time after that momentiii. Here, 15.17 hearing that moment – determ PC, set bail, informed of chargesiv. Req’d that attny be present if it is a “critical stage”

b. Estelle v. Smith (1981) – have right to meet w/ counsel before submitting to psych exam – considered a “critical stage”

i. Must be confronted w/ need to make “decision req distinctively legal advice OR need to defend self against prosecution”

ii. Doesn’t address whether counsel can be present during psych examc. Hurnell-Harring v. NY (NY 2010) – time btwn arraignment and trial is “critical”d. In practice – most states have statutory line for early attachment

MASSIAH RIGHT TO COUNSELI. Runs parallel to Miranda, some overlap

a. Triggeri. Miranda – custodial interrogation

ii. Massiah – beginning of judicial proceedingsb. Remedies

i. Miranda – only get suppression if seek to use at trial; no fruit and no physical evidence suppression

ii. Massiah – normal 4th/5th Am remediesc. Crime Specific

i. Miranda – Not Crime Specific (Arizona v. Roberson)ii. Massiah – Crime specific (Texas v. Cobb)

d. Waiver/Invocationi. Miranda – implied waiver

ii. Massiah – follows MirandaII. Brewer v. Williams (Williams I) (1977)

a. “Christian burial speech” – conversation in police car deprived W of right to counselb. Massiah is triggered by beginning of judicial proceedings (Rothgery)c. 6th Am test for interrogation – deliberately elicit incrim info (happened here)

III. Fellers v. US – underscores diff btwn interrogation (Miranda) and deliberate elicitation (Massiah)a. SCT assumed that fruit doctrine applies to Massiah

IV. Waiver – Patterson v. IL (1988) – waiver standard for Massiah is the same as that for Mirandaa. 2013 – standard is Burghuis (most be unambiguous; not talking is not invoking

rights) changed Miranda standard – presumably changes Massiahb. Invocation must be unambiguous; knowingly, intelligently, and voluntarily

answering is considered waiverV. Maine v. Moulton (1985)

a. Statement about killing witness not excluded b/c no judicial proceeding for that charge initiated; Massiah is crime specific

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VI. Informants – passive v. actiona. Miranda – jail house snitch not coercionb. US v. Henry (1980) – undercover cannot stimulate convo; Massiah violationc. Kuhlmann v. Wilson (1986) – No Suppression if informant does nothing to stimulate

convoVII. Closely Related Offenses – Texas v. Cobb (2001)

a. Massiah right is crime specificb. 6th Am is offense specific and cannot be invoked once and for all for future

proceedings (McNeil v. Wisconsin)c. Uses Blockburger double jeopardy test to determ if same offense/crime – “related” if

same crime, plus element (diff elements, diff crimes)

LINE-UPS, SHOW-UPS, and PHOTO IDsI. Ultimate Rule

a. Only post-indictment line-up gets counsel (not post-indictment photo array)b. Nothing pre-indictment gets counselc. Right to have counsel present is only the right to be thered. Due Process applies to all phases

II. Fruit Doctrine – if ID completely clean, no suppressiona. If pre-trial ID is bad, but can show in court ID is based on original ID, then it is goodb. Courts easily find independent coursec. Self-incrim does not apply b/c it is not testimonial (physical characteristics)

i. P may comment on refusal to cooperate, and can use contempt to force itIII. US v. Wade (1967)

a. Rule – any post-indictment line-up, suspect has right to counsel and counsel can be there b/c it is a “critical stage” – only get counsel when in-person

b. Reasons counsel allowed to be there:i. Degree of suggestion inherent in manner in which prosecution presents

suspects to witness (either intentionally or unintentionally)ii. Ensures counsel knows what happened so can mount a defense in court if

necessaryIV. Hayes v. FL – no 4th Am violation when person lawfully in custody and ordered into line-

up for a diff crime, even when have no PCV. Kirby v. IL (1972) – refused to apply Wade to pre-indictment show-up

a. Judicial proceedings not yet initiatedb. No custodial Interrogation

VI. US v. Ash (1973) – Wade does not apply to post-indictment photo IDa. Accused not present at ID, and did not request to be there, no possibility might be

misled by officers or overpowerdb. Policy – extending Wade would have opened door to extending it to wide array of

other pre-trial phases, even though may be just as “critical”VII. Due Process Test (Stovall-Brathwaite) – difficult burden to meet

a. Req’si. Was procedure unnecessarily or impermissibly suggestive?

ii. Then consider reliabilityiii. Perry adds: “arranged by law enforcement”

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b. Stoval v. Deno (1967) – Unnecessarily Suggestivei. In hospital ID, only black guy in room and handcuffed topolice

ii. Violates Due Process if “so impermissibly suggestive as to give rise to very substantial likelihood of misidentification”

iii. Totality of Circumstances Testc. Manson v. Brathwaite (1977) – Reliability

i. Purchased heroin through doorway; 2day later, single photo IDii. No per se exclusion for suggestive procedure – must be unnecessarily

suggestive: okay if reason for procedure, exigent circum, nothing culpable1. Prejudice Prong – also have in IAC, fruit doctrine, exclusionary rule,

entrapmentiii. Pick totality of circum over per se rule b/c:

1. Per se excludes reliable evidence, making error more likely2. Totality just as good in influencing police behavior

iv. Reliability Factors1. Chance to view suspect, at time of crime2. Level of attention paid (to features)3. Accuracy of description4. Level of certainty5. Amount of time btwn crime and confrontation/ID6. Urgency/coercion

d. Perry v. New Hampshire (2012)i. Improper police action req’d for suppression of out-of-court ID

ii. External suggestion not the only factor that casts doubt on trustworthiness – passage of time, stress during encounter, time to observe suspect, presence of weapon, distance, relative race

iii. Seems to suggest necessary level of police involvement is INTENT

INEFFECTIVE ASSISTANCE OF COUNSELI. IAC leads to chance for new trial; right to counsel does not exist for appealsII. Cuyler v. Sullivan (1980) – ends distinction btwn retained and appointed counsel\III. Strickland v. Washington (1984)

a. Failure to investigate was not IACb. 2 part test

i. Deficient performance1. Objectively reasonable at time of counsel’s conduct2. Professionally reasonable judgment (“reasonably effective”)3. Presumption of adequate assistance4. Detailed guidelines not determinative.

ii. Prejudice1. Reasonable probability that but for inapprop conduct, outcome would

have been different; fact specific analysis2. Rooted in test for materiality3. Weakly supported verdict more likely to have been affected by error

c. In duty to investigate, choices made after less than complete investigation are reasonable to extent reasonable professional judgments support limitations on investigation

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IV. Wiggins v. Smith (2003) – not concentration on “difficult life” and “clean record” not reasonable in light of inadequacy of investigation; were due to inattention.

V. Reasonableness and Attorney Practice – Prong 1a. Professional norms/statements of practices are only guidesb. Bobby v. Van Hook (2009) – role of Court, not ABA to determine what attny must do

in a capital casec. Padilla v. KY (2010) – described 2 sets of standards as reflecting “prevailing

professional norms”VI. Prejudice – Prong 2

a. Kinnelman v. Morrison (1986) – prong should be read in light of 6th Am objectivesb. Lockhart v. Fretwell (1993) – req’s more than simply looking to whether diff result

would have been reachedVII. Constructive Denial of Counsel – Bell v. Cone (2002)

a. Absence at critical proceeding or lack of effort so extensive as to produce “complete failure” of representation

VIII. Plea Agreements – Laffer v. Cooper (2012)a. Plea stage receives normal IAC analysis – 6th Am req’s effective assistance at critical

pre-trial stagesb. For acceptance of plea – but for errors would not have pleadedc. For rejection – plea would have been less severe than trial outcome.

GRAND JURYI. Advantageous where investigators must gain assistance of victims/witnesses reluctant

to cooperate, complex crimes, or keep investigation from public eyea. Subpoena ad testificandum – appear/testify

i. Can issue w/o judge’s approvalii. Supported by authority to hold in contempt of court and made under oath

b. Subpoena duces tecum – produce documentsi. Can issue w/o judge’s approval

ii. NO PARTICULARITY or PROBABLE CAUSE REQ’Siii. Useful where using warrant would be impractical – lots of docs, mult location

c. Immunity Grantsd. Secrecy Req’se. Have public confidence

II. Initial Approach – Boyd v. US (1886) – overruleda. Req to pay import tax; not complying a confession of guilt, and must pay/forfeitb. Compulsory production of ledger the equiv of search, b/c had same objective

III. 4th Am Limits on Subpoena Powera. Can usually negotiate the scope of the subpoenab. Subpoena to appear before GJ not a “seizure” – not kind of intrusion sought to be

protected by the 4th Amc. Overbreadth Doctrine – Hale v. Henkel (1906)

i. Docs requested too broad – hard to see how corp could continue business after being denied such mass of materials

ii. Production may eventually be req’d of all docs, but need to show some necessity

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iii. Application req’s specific factual analysis – exam scope in light of 3 criteria:1. Commands on production of docs relevant to investigation2. Specifies docs w/ reasonable particularity3. Reasonable period of Time

iv. “Particularity” not really about particularity, but about necessity of docsd. Third Party Objections – US v. Miller

i. Target of investigation may not raise 4th Am objection when not subject of subpoena – fed standard. Req’d to turn docs over b/c

1. Not a confidential communication (would be diff if had attny-client)2. Info on docs voluntarily written3. Docs voluntarily conveyed to 3d party

ii. Some states have not applied Miller (giving 3d party full standing); and other states have only applied it to certain types of records (non-personal info)

e. US v. Calandra – in deciding to extend Exclusionary Rule to GJ, must weigh potential injury to historic role and function of GJ against potential benefits of rule

IV. 5th Am Limitsa. Compelling Testimony – US v. Dionision (1973)

i. Voice exemplar not a 5th Am violation - physical characteristic, as opposed to content voluntarily exposed to public

ii. Other ID procedures:1. Line-ups: allowed, but some courts req GJ approval2. Blood Sample – usually need special showing.

b. Testimonial – cannot force D to give up contents of his mind.i. Not testimonial – blood draw, voice exemplar, signing name, reading script

c. Act of Production Doctrinei. Producing evidence has communicative elements, indep of contents of docs

1. Existence – incrim that docs exist2. Possession – incrim that docs in your control3. Authenticity – incrim that you know what docs are

ii. Fisher v. US (1976)1. Summons to atty to produce tax docs given over by client Enforceable2. Doesn’t require client to do anything3. Docs voluntarily written down, so no compulsion4. Docs/transfer to attny not immune by privielege5. Already know what the docs are and who has them, so attny not req’d

to use anything in their mind to find them6. “Already written down” rationale prob includes diary.

iii. US v. Doe (1984)1. Cannot avoid compliance by asserting writing is incirm b/c writing

was Not Compellediv. Production by an Entity – Braswell v. US (1988)

1. Custodian of corp holds docs in representative capacity, thus production not a personal act

2. Might be diff if D held a prominent position in the corpv. Act of Production Immunity

1. Does not necessarily extend to contents of docsvi. Authentication/Foregone Conclusion Doctrine

1. Fisher – applies to implicit existence/admitting possession

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2. Doe I – extends to authentication3. Rationale – not incrim b/c already has the evidence/know what it is

d. Non-Documentary Productioni. Bouknight – cannot claim privilege based on what exam of son might reveal

(not testimonial)ii. US v. Hubbell (2000) – 5th Am protects against being compelled to disclose

existence of incrim docs gov’t cannot describe w/ reasonable particularity.1. Would require use of own mind

iii. How Much Particularity is Needed?1. US v. Ponds – docs related to payment of legal fees okay2. Fisher – gov’t knew tax returns in attny’s possession

iv. Encryption – Grand Jury Subpoena Dated Mar 25 (11th Cir 2012)1. Unencrypting files testimonial b/c req’s use of contents of mind2. Not foregone conclusion b/c cant show Doe had access to files or that

files were actually on hard drive.3. Disting from In re Boucher – didn’t know contents, but knew that files

under that name existede. Incriminating Testimony

i. Tests – when can 5th Am successfully be asserted:1. Real and substantial danger of incrimination2. Reasonable cause to apprehend danger of incrim3. Suspect has good reason to think answer will provide gov’t with what

it needs to convict (“link in the chain”)ii. Hoffman v. US (1951)

1. Relied on Privilege to refuse to answer Qs about current occupation in racketeering investigation

2. Privilege extends to answers which furnish link in chain of evidence needed to prosecute

3. Need only be evident implication of Q in setting in which it is asked, that response or explanation of why can’t respond MIGHT BE dangerous – rare case

iii. Also extends to the production of physical evidencef. Waiver

i. If waive privilege, need to keep talking about crime (eg: details)1. Rogers v. US – disclosure of incrim fact waives privilege as to details

ii. If about different offense, need different wiaveriii. Fed and most states – 5th Am only a refusal to answer, not a prohib against

any inquiry (have to show, but can opt not to answer)g. Entity Exception

i. Hale v. Henkel –self incrim not avail to corporation b/c it is a personal rightii. Does get 4th Am protection though (see Braswell above)

iii. US v. White (1944) – extended Hale to other entitiesiv. Bellis – applies if group exhibits persona as well as group interests (law firm)

h. Required Records Exception – Shapiro v. US (1948) – business records must be turned over if:

i. Records are essentially regulatory in natureii. Records must be of the kind which regulated party customarily keeps

iii. Must have assumed some public aspects

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