Criminal Procedure: InvestigationProfessor Grosso, Fall 2020

Outline

IntroductionRule-governing police conduct in investigating a case

Derives from 4A, 5A, 6AStages of the Criminal Justice Process

1. Pre-arrest investigation Police usually only have a few min to decide whether to arrest suspect Otherwise, police will use their investigative tools (warrants, interviews, etc.) to

seek formal charges before they execute arrest2. Arrest

Police have enormous discretion to decide whether to arrest a suspect3. Filing the complaint

For police to hold suspect after arrest, prosecution must file charges4. Gerstein review

Judge must review complaint and affidavit to determine whether there is probable cause

5. First appearance/arraignment on complaint Once prosecution files a complaint, defendant may appear before court to be

advised of the charges against him, opportunity to seek bail, and be advised of right to counsel.

6. Grand Jury/Preliminary hearing Grand jury = no judge, members of community decide whether there is probable

cause No defendant or defendant counsel present Prosecutor directs grand jury operations

Preliminary hearing – no jury, judge decides whether there is probable cause to bind the case over for trial

Both sides generally given opportunity to present evidence7. Arraignment on indictment or information

Defendant asked to enter a plea, advised of charges against him, and assigned counsel

8. Discovery9. Pre-trial motions

Help the parties define the scope of their own cases and assess other sides10. Plea bargaining and guilty pleas11. Trial12. Sentencing

Defendant has opportunity to address the court13. Appeals and habeas corpus

Direct appeal: defendant may demonstrate why he did not receive fair trial or there was insufficient evidence to support the jury’s verdict

Habeas corpus petition: allege that the defendant is being held unconstitutionally Mostly decided without a hearing

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Purpose of procedural rules Constitutional rights are not just formalities – critical to ensuring that police respect

people’s rights and that the right people are held responsible for criminal actionsPowell v. Alabama – due process

Facts: Black boys accused of raping white woman on train. They were arrested, trial spanned one day, and had no lawyer “during the most critical moments of the trial.”

Holding: Due process rights denied because:o Weren’t given fair trialo Denied the right of counselo Were tried before juries from which qualified members of their own race were

systematically excludedo Trial court failed to give defendants reasonable time and opportunity to secure

counsel; clear denial of due processPatterson v. Former Chicago Police Lt. Jon Burge – failure of procedure = injustice

Facts: Defendants beaten, tortured, threated, coerced into false confessions Holding: Police failure to follow procedure = murderer was able to go free and was never

caughto Constitutional Rights are not just formalities – they are critical to ensuring police

respect people’s rights and the right people are held responsible for criminal actions.

Key provisions of the Bill of Rights 4A: governs police conduct during searches and arrests 5A: privilege against self-incrimination

o General right of due process 6A: right to assistance of counsel 8A: prohibits cruel and unusual punishment (evolving definition)

Application of the Bill of Rights to the States Provisions to the bill of rights and the idea of incorporation

o Scottsburo: SCOTUS held due process clause of 14A protects fundamental rights from state interference; includes Bill of Rights provisions

Debate over incorporationo History – technically, bill of rights state it only applies to the federal governmento Federalism – incorporation made due process a matter of constitutional lawo Appropriate judicial role – incorporation is controversial because of federalism

and judges legislating from bench Current law as to what has been incorporated:

o Duncan v. Louisiana – incorporated rights Facts: plaintiff wanted jury for battery trial, trial court said Louisiana law

only allowed for jury trials in cases of capital punishment or imprisonment was imposed

Holding: 6A trial by jury is fundamental right and is incorporated via 14A Summarizes many decisions that found almost all of the Bill of Rights

provisions are incorporated Content of incorporated rights

o Except for the requirements of a 12-person jury and unanimous verdict, Bill of Rights provisions have been incorporated to apply to the states as well.

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Still many differences between crim pro in federal and state courtsRetroactivity

Generally, crim pro decisions apply only in that case, any pending cases, and any future cases

o Can be detrimental to people already in prison 2 situations where SCOTUS will apply crim pro decision retroactively

o Places a matter beyond the reach of criminal law That behavior cannot be criminally punished

o Watershed rule Must be necessary to prevent an impermissibly large risk of an inaccurate

conviction Must alter our understanding of the bedrock procedural elements essential

to the fairness of a proceeding Montgomery v. Louisiana – application of retroactivity

o Key question is substantive or procedural – only applies retroactively if it is substantive

SEARCHES AND SEIZURESCentral requirements of 4A

Reasonableness clause: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.”

Warrant clause: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Who would 4A apply to?Would not apply to Applies to

A US citizen living in another court (usually; more complicated with technology)

A citizen of another country living in that country

Private investigators or landlords Material in a robbery that

subsequently makes its way to the police

A foreign citizen living in the US with a valid student VISA

A foreign citizen living in the US who overstayed a student visa w/ no documents

State actors; BUT if a landlord finds a smelly box in a trailer and takes it out, then calls police who find a dead body = no state actor; means no violation of 4A

Police asking landlord to search (agency law – landlord acting in the shoes of the officer)

Balance between privacy interests and government’s need for effective law enforcement

What is a Search?The Basics

Elements of a search:

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o Is there a state actor? (state actor must conduct the search)o Is there a search or seizure?

What search implicates the Fourth?Case name Type of search HoldingKatz Phone booth SearchJones GPS on car SearchOliver/Dunn Open field No searchCiraolo/Rily Flyovers No searchKnotts/Karo Beepers MixedDow/Kyllo Dog sniffs MixedPlace/Jardines Dog sniffs Mixed Caballas/Rodriguez Dog stops Mixed Carpenter GPS-like information SearchGreenwood Garbage No searchSmith Pen register No searchHoffa/Lopez/Lee Misplaced confidence Not a search

Katz v. United States – reasonable expectation of privacy Facts: Defendant operated betting business across states out of a phone booth. FBI put

recording device on top of the phone booth; only listened to defendant’s side of conversations for limited amount of time.

Holding: Search – Constitution protects people, not placeso Overruled previous precedent that electronic eavesdropping without a physical

trespass was not a search within the meaning of 4A Search Test:

o An actual expectation of privacy Subjective

o An expectation that society recognizes as reasonable Objective

United States v. Jones – the “traditional” approach Facts: Defendant suspected of drug trafficking; officers put GPS on bottom of wife’s car;

tracked car’s movements at all times for 4 weekso FBI got a warrant, did not follow conditions of the warrant

Holding: Search – physically occupied private property with intent of obtaining information

o Physical trespass by placing GPS on the caro Trespass not necessary or sufficient to constitute a search

**Do not get too bogged down with “property rights” arguments!**

Open Fields Open Fields Doctrine: anything plainly visible and not within the curtilage (area located

immediately within a home) is subject to search without a warranto An individual may not legitimately demand privacy for activities conducted

outdoors, except in the area immediately surrounding the home

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o Lands are usually accessible to the public in a way that a home, office, or commercial structure cannot be

o No societal interest in protecting the fieldso Some states require a warrant (Michigan follows open fields doctrine)

Oliver v. United States – “open fields” doctrine Facts: People drinking in a field; police found moonshine during prohibition Holding: If it is an open field, there is no reasonable expectation of privacy.

o Not case by case analysisCurtilage

Curtilage: land immediately surrounding the home, the area where there is activity for the home = protected

o “an extension of the intimate activities of the home”o Different meaning in urban and rural settingso Whatever you can easily argue is the yard

United States v. Dunn – four-factor test for curtilage Facts: DEA agents installed beepers on items co-defendant purchased to make meth.

Items ended up on defendant’s property; 198 acres completely encircled by a fence.o Police did not obtain warrant and crossed over the perimeter and interior fences;

smelled meth coming from barn; looked in barns, found meth lab Holding: Not a search – barn that police searched was not in curtilage

o Substantial distance from the house (60 yards)o Not inside area surrounding house that was enclosed by fenceo Police had objective data indicating barn was not being used for “intimate

activities” of the homeo No steps taken to protect barn area from observation by those standing in open

fields Fence was not enough; they were only for livestock and not for preventing

observationFour-Factor Test for curtilage:

Proximity of the area to the home Whether the area is included within an enclosure surrounding the home Nature of the uses to which the area is put Steps taken by the resident to protect the area from observation by people passing by

Aerial Searches Use of low-flying airplanes is not a search under 4A

California v. Ciraolo – subjective intent for privacy alone is insufficient Facts: Police received anonymous tip that week was growing in defendant’s backyard.

Police unable to observe yard from ground level due to 6 ft outer fence and 10 ft inner fence enclosing yard so officer flew over defendant’s house – observed and photographed marijuana

Holding: Not a search – Katz controls. o Undisputed that defendant had a subjective expectation of privacy due to high

fences

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o No reasonable expectation that society accepts – not reasonable to expect protection from planes flying over

Observations took place in public navigable airspace in a physically nonintrusive manner

o Not disputed that area was curtilage What a person knowingly exposes to the public, even in his own home or office, is not

subject to 4A protection; subjective intent for privacy is not sufficient standing aloneFlorida v. Riley – helicopter searches

Facts: Defendant lived in mobile home on 5 acres of rural property with greenhouse 10-20 ft behind the home and a wire fence surrounding both w/ do not enter sign.

o Police received anonymous tip that weed was being grown on defendant’s property; police could not see from road so officer circled over it in a helicopter. Saw weed through openings in greenhouse roof

Holding: Not a search – may have subjective expectation that greenhouse was not open to public observation, but could not have reasonably expected privacy from the air because sides and roof of his greenhouse were left open

o Society not prepared to recognize this as reasonable. Helicopters are legally allowed to fly that low – any member of the public

could have done it; also common, so defendant can’t expect privacy Not always the case that legal altitude = search; but no undue noise, wind,

dust, threat of injury.

Technology Thermal Imaging of Homes

Kyllo v. United States – thermal imaging Facts: Police used thermal imaging device to scan defendant’s home in order to detect

infrared radiation invisible to naked eye used to grow week indoors Holding: Search – where government uses device that is not generally used by the public

to explore interior of a constitutionally protected area is presumptively unreasonable search without warrant

o Home is safe from prying eyes – all details are intimate. o No officer would be able to know in advance whether the surveillance was

intimate and therefore would be unable to know if it was constitutionalo 4A protections not conditional upon quality of information obtained by

government. So long as there is subjective expectation of privacy and society is willing to recognize expectation is reasonable, government must obtain warrant.

o Surveillance from low-flying helicopter is not search; surveillance via thermal imaging device = search

Searches of TrashCalifornia v. Greenwood - trash

Facts: Officers suspected defendant was trafficking drugs through his home and asked trash collector to keep trash separate so they could search it

Holding: Not a search – no reasonable expectation of privacy that society would find warranted 4A protection

o No reasonable expectation of privacy in what a person chooses to discard

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o Police cannot be expected to avert their eyes from evidence of criminal activity that could have been observed by anyone in the public

o Defendant exposed their garbage to public sufficiently to defeat claim for 4A protection – left in an area for public inspection and consumption

Observation and Monitoring of Public BehaviorUnited States v. Knotts – public observation

Facts: Officers placed beeper on a container that defendant put in his car in order to follow car and find his cabin.

o Police obtained warrant after observation Holding: Not a search – what defendants expose to public does not matter.

o No reasonable expectation of privacy in movementso Fact that officers relied on beeper does not change fact that they could have seen

all of this by observing him in publico “The police may use scientific advancements to augment the sensory faculties

‘bestowed at birth.’”o Distinguished from Jones because Jones focused on the placement of the car as a

trespasso Distinguished privacy of a car

United States v. White – informant wears a wire Facts: Federal agent convinced suspect to wear a wire while agents listened and agents

wanted to testify about that they heard. Holding: Not a search – suspect willingly spoke to person, agent’s testimony is

admissible.o What you knowingly expose to someone else is not protected from the police –

conversation was not a search.United States v. Karo – conflicting holdings on beepers

Court found that the placement of a beeper in a container was a search when beeper used to obtain information that could not be procured by visual surveillance

California Bankers – bank records Court found inspection of bank records are not searches – banks are parties to any

transaction and thus have knowledge of themo Because some others in the government will see the bank records, there is no

expectation of privacySmith v. Maryland – pen registers

Facts: Police asked phone company to install pen register to record numbers dialed from phone at defendant’s house without a warrant because defendant was suspected of robbery and stalking

Holding: Not a search – no legitimate expectation of privacy in information voluntarily turned over to third parties (third party doctrine)

o Defendant voluntarily gave phone company information of who he was calling and assumed risk that the company would reveal this to police

*Pen registers now outlawed by statuteCarpenter v. United States – cell phone GPS

Facts: Government accessed cell phone records that provided a comprehensive chronicle of the owner’s past movements

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Holding: Search – due to unique nature of phones, just because information is held by a third party does not overcome 4A’s protections

o Phones are intimate window into life; government needs a warranto Individuals have a reasonable expectation of privacy in the whole of their physical

movementso Tracking was “indiscriminate” and cell phones are “on our person” at all times –

more invasive tracking that in Joneso Kyllo applies – government cannot use new technology to explore what is

happening within the home without a warranto Smith v. Maryland doesn’t apply here – because info gathered is comprehensive

and automatic, does not matter that it is gathered by third partyHoffa v. United States – misplaced confidence

Not a search - a suspect misplacing his confidence in an undercover agent does not mean agent eliciting information conducted a search

Use of Dogs to Sniff for Contraband No overall answer to whether it is a search if police use drug-sniffing dogs

o Generally – use of a drug dog is not a search, but can depend on whether a person was held to wait for drug dogs.

United States v. Place – use of drug dogs, generally Facts: Dog sniffed a bag Holding: Not a search – only yields limited yes/no information and does not involved

opening the luggage; not intrusiveIllinois v. Cabelles – general rule

Facts: Defendant was pulled over for speeding. K9 officer came unsolicited and held the defendant for ten minutes

o Officer walked the dog around the vehicle Holding: Not a search – use of well-trained narcotics detection dog, one that does not

expose non-contraband items that would otherwise remain hidden from public view, during a lawful traffic stop generally does not implicate legitimate privacy interests and is not a search

o Dogs only know if something is illegal in a bag, not everything that is in a bag – search is limited

o SCOTUS sets the baseline, not the ceiling Some states say dogs require reasonable suspicion or probable cause

Rodriguez v. United States – cannot prolong the stop Facts: traffic stop of defendant completed, officer asked if he could walk the dog around

the car; defendant said no.o Officer called for backup, waited for it to arrive, then dog sniffed the car

Holding: Search – a seizure justified only by a police officer’s observed traffic violation becomes unlawful when stop is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation

o Distinguishes Cabelles and Placeo Compares traffic stop to Terry stop – only permits detention for the amount of

time the “mission” requires

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In traffic stop “mission” – address the traffic violation and attend to safety related concerns

Florida v. Jardines – dogs on property/limit of knock and talk Facts: Dog sniffed marijuana when on front porch. Holding: Search – porch is part of curtilage and use of dog in order to discover

incriminating evidence goes beyond “customary license” which would allow a police officer to go to a person’s door and knock.

o Visitors are routine, canine investigations are not.Florida v. Harris – reliability of dog does not have to be proven “without a doubt”

Facts: Officer stopped defendant because he had expired license plate. Defendant seemed nervous, so dog sniffed around truck and alerted officer to drugs. Officer concluded he had probable cause to search the truck – found ingredients for meth, but not drugs.

Holding: A dog’s performance is a good indication of wrongdoing and can be used to determine if there is PC.

o Do not need a precise degree of certainty for probable cause. Over 50% certainty; does not need to be beyond a doubt.

Probable Cause and the Warrant RequirementThe requirement for probable cause:

Probable Cause: the facts and circumstances before the officer are such to warrant a man of prudence and caution in believing that the offense had been committed

o Purpose is to limit the ability of the police to go anywhere where our privacy is concerned

PC is the amount of evidence necessary for officer to take certain actions:o Applying for a search warrant – PC that officers will find evidence of crime in

place being searchedo Applying for an arrest warrant – PC that defendant committed crimeo Arresting someone on the streeto Searching without a warrant because of an exigency

Probable cause is an objective standardo What a reasonable officer could have done in the circumstances

What is sufficient belief to meet the standard of probable cause?o More than bare suspicion, but less than evidence which would justify a

conviction.o Evaluated on the totality of the circumstances

Not more likely true than false Not beyond a reasonable doubt Less than preponderance of evidence More than reasonable suspicion

Illinois v. Gates – “totality of the circumstances” test Facts: Officers received anonymous tip in form of letter stating defendant was involved

in drug dealing. Officers corroborated details Holding: Magistrate only has to make decision of whether, given the veracity and basis of

knowledge, there is a fair probability that contraband or evidence will be found in a particular place.

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o Abandoned Spinelli test (whether informant is credible and reliable) for totality of the circumstances test

o Totality of the circumstances – reliability and credibility still matters, but fluid; looking for fair probability

o Because tipster was right about a few details, they are probably right about others Veracity and reliability

**Probable Cause is NOT the Totality of the Circumstances – TOC is the TEST to determine probable cause.**

Maryland v. Pringle – probable cause must be particularlized Facts: Police stopped car for speeding, saw a large amount of money rolled up in the

glove compartment. o Driver consented to search of vehicle, cops found drugs.o All three people in car denied ownership and officers arrested all three of them.

Defendant confessed to drugs and said other two did not know anything. Holding: PC to arrest all three because they could all exercise dominion and control over

the drugs in the car.o Where the standard is PC, a search or seizure of a person must be supported by

PC particularized with respect to that person. PC is not certainty – though passenger did not own the vehicle, there was PC that the drugs belonged to anyone in the car.

o Reasonable officer could conclude that there was PC to believe one or all three defendants committed the crime.

Whren v. United States – probable cause is objective, not subjective Facts: officers in “high crime area” pulled over a car for 1) being stopped too long at a

stop sign, 2) young black occupants, 3) driver looked in lap of passenger, 4) turned without a signal, 5) sped off too fast.

o Officers saw cocaine in the hands of the passenger. Holding: search and seizure is not a violation of 4A in cases where the officers have a

reasonable suspicion that a traffic violation has occurred.o The test for PC is objective and focuses on whether the reasonable officer could

have found PC under the circumstances; subjective intent does not matter. o Regardless of the “pretext” of the officer’s action, an arrest “would not be

rendered invalid” and that a “lawful post arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches.”

o As long as a reasonable officer could conclude that there was PC to believe there was a traffic violation, then OK to stop.

Since Whren, SCOTUS reaffirmed test for PC is objectiveHeien v. North Carolina – mistake of law

Facts: officer stopped defendant because brake light was out, but officer was not aware this was not against the law. During the stop, defendant acted nervous. Officer asked for consent to search the car and found drugs.

Holding: a reasonable officer under the circumstances might have believed this to be the law enforced, so search or seizure may be permissible even though the justification was a mistake.

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o Objectively reasonableDraper v. United States – probable cause is not technical

Facts: informant gave a tip that defendant was transporting drugs, giving travel plans, drugs he would have, physical description, two possible days he would arrive.

o Officer observed defendant get off the predicted transportation, wearing the exact clothing, and “walked fast.” Officer found the exact drugs.

Holding: Probable cause is not technical; it deals with factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

o Tip was valid because the tipster was reliable (paid), could be verified, and detailed, which suggested the tipster had access to information the police were looking for.

Reliable informant from someone they knew and worked with in the past; corroborated all information from the tip before the search.

o PC and reasonable grounds based on reliability and credibility of information.

Warrant RequirementsPurpose of the warrant requirement:

Check on police because it must be approved by a neutral judge Limits police conduct by restricting the scope of the search or seizure

What information is required for a warrant application? Probable cause

o Reasonable trustworthy information, sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed

o A question of probabilityo A fair probability that contraband or evidence of a crime will be found in a

particular placeo A substantial basis for concluding that the search would uncover incriminating

evidence. Based on oath

o Usually an affidavit with the warrant, swearing that it is true Issued by a neutral and detached magistrate

o A deputy state sheriff that is not on the case is NOT neutralo Depends on how magistrate knows defendant (relationship)o If someone works for the police dept, can’t issue a warrant

Must be particularizedo Describe who is being arrested

Searching an inmate – served on warden at prisono Describe place that is searchedo Describe what they are searching foro Generally, greater generality is allowed in cases of contraband, but in contrast,

greater specificity is demanded if many objects look the same and most are not Ex: an entire warehouse full of cardboard boxes – can’t look in every box Ex: If looking in large object, cannot look in small drawers Ex: looking for a piano, but none of the rooms in the house are big enough

to fit a piano

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Must specify a reasonable length of time that the device may be used (10-45 days) Other rules of the warrant requirement:

o Warrant should be executed during the day unless the face of it states otherwiseo No obligation to give the person the search warrant, but best practiceo Warrants must be executed within the time period PC exists, cannot merely show

that PC existed in the past. Depends on totality of the circumstances

o Police must provide inventory of what is takeno If 1A involved, there is “scrupulous exactitude” requiredo Plain view doctrine – officers allowed to take things that are illegal even if the

warrant was not for the illegal item when they are in plain viewo Warrant must specify crimes for which evidence is sought; otherwise, warrant

authorizes “fishing expedition.” Warrant cannot be so open-ended to authorize a search of evidence of any

crimes.o Judges, not police officers, determines the existence of PC so the officers must

present enough underlying facts and circumstances to allow a judge to draw their own conclusions.

Form of a warrantAndresen v. Maryland – ambiguity of a warrant = read it in context

Facts: search warrant issued for specific list of documents, but ended with general “together with the other fruits, instrumentalities, and evidence of crime at this time unknown.”

Holding: a greater degree of ambiguity is tolerated – this warrant description was specific enough because when read in whole, it is limited to the crime described.

Groh v. Ramirez – supporting documents of a warrant Facts: warrant form did not name, list, or describe items to be seized, but the warrant was

accompanied with a detailed affidavit describing basis of relief and all the weapons.o Application was signed by magistrate

Holding: invalid warrant because a search warrant must be particular in describing what is going to be seized and can reference supporting documents with the appropriate words of incorporation to do so.

o Ultimate goal is to constrain the discretion of the officers and leave the discretion to a detached magistrate.

o Magistrate should have found that it was not narrow enough because some of the weapons could have been legal; officer acting with restraint does not save the case

United States v. Grubbs – anticipatory warrants Facts: officers obtained a search warrant for defendant’s house on the basis of an affidavit

explaining that warrant would be executed only after a controlled delivery of contraband to that location

o Police did not have PC at time of issuance of warrant Holding: In situations where it is certain that PC will eventually exist, a warrant can be

issued. Anticipatory warrant applications need both:

o PC to believe the triggering condition will occur

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o PC to believe that the contraband will be found Affidavit must give magistrate sufficient information to believe both.

Warrant Execution Who does the warrant apply to when a warrant is being executed?

o People present in an area to be searched and can be searchedo People can be detained to prevent flight

Minimizes risk of harm to police Questions

Searching a persono A warrant may authorize the search of a person, but must be explicit in doing soo If the warrant does not complain explicit authority to search a person, but

implicitly it seems like what they are looking for may be on someone at the scene, police can search them.

Searching one’s home when occupants are home.o Police may detain the occupants of a home while they are conducting a lawful

searcho Detention’s purposes

Prevents escape attempts Protects Police Ensures the search is completed efficiently

o Test: was police action in detaining incident to search reasonable? If yes, then no violation

o Limited to the immediate vicinity of the premises to be searched Searching one’s home when occupants are away

o Cannot arrest a person while their house is being searched if they are not home.o None of the purposes of detention are fulfilled and therefore intrusiveness of a

public arrest is not outweighed by the legitimate police purposeMuelher v. Mena – reasonable force to detain

Facts: officers had warrant to search after a drive by shooting that supposedly tied to gang activity – during execution, defendant was removed from her bed, handcuffed, detained in her garage with three other individuals for 2-3 hours.

Holding: officers can use reasonable force to detain occupants during a search and officers have the authority to detain the occupants on the premises while a search is conducted.

o In inherently dangerous situations, the governmental interests are at a maximum.o Asking questions and using handcuffs was not unreasonable.

United States v. Bailey – you must be on premises to be detained Facts: Officers had warrant for home, were watching it, saw defendant and his friend

leave and drive away. Officers stopped them, arrested them, found keys to the house for which they had a warrant but nothing incriminating. Officers took them back to the house, but had already found the drugs or weapons during the search. The police conceded there was no RS to pull them over.

Holding: detention must be limited to the immediate vicinity of the premises to be searched.

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o “Spatial constraints” – permission of this behavior gives officers too much discretion.

Knock and Announce Generally: absent exigent circumstances, when police execute a warrant, they must

knock, announce, and give reasonable time before entering.o However, if no answer, then they can use reasonable force to enter – proof of

demand and refusal not needed.Wilson v. Arkansas – the knock and announce rule and its exceptions

Facts: defendant sold to a confidential informant, produced a pistol, threatened to kill her if she turned out to be a confidential informant.

o Warrant was issued, search conducted, main door was open, and while opening unlocked door the police identified themselves as police and stated they had a warrant.

o Police found weapons and defendant attempting to flush drugs. Holding: Police officers must knock and announce their presence and wait a reasonable

amount of time before executing a warrant unless doing so would endanger them or lead to the destruction of evidence

Test to determine whether knock and announce is required or if there is no need to knock and announce:

o If it is reasonable to believe that a threat of physical violence is presento If it is reasonable to believe that evidence will be destroyedo If it is a case where prisoner has escaped and retreated into his dwelling

Richards v. Wisconsin – no blanket exceptions; case by case analysis Facts: police applied for “no knock” search warrant to search a motel room for drugs –

magistrate deleted no knock portions but issued the warrant. o Defendant saw officer in uniform and slammed the door. Officers got into the

apartment and caught him trying to escape and flush drugs. Holding: RS that knocking and announcing, under the circumstances, would be 1)

dangerous or futile, 2) inhibit the effective investigation of the crime (ex: destruction of evidence)

o Looking at the circumstances, no knock reasonable because it is reasonable defendants would destroy evidence because it is a common circumstance for drug investigations.

No-Knock Warrants Magistrate’s decision to NOT issue a no-knock warrant should not be interpreted as

stripping officers of this power. Reasonableness is not always able to be demonstrated ahead of time

o Officers are allowed to use independent judgmentUnited States v. Banks & Hudson v. Michigan – why even have a knock and announce rule?

Facts: Officers only waited a short amount of time to enter because they believed evidence could be being destroyed.

Holding: exclusionary rule does not apply to evidence gained after police violate the knock and announce rule

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o Rule exists because safety concern and gives people the chance to collect themselves.

Unforeseen circumstances or mistakes during the execution of a warrantMaryland v. Garrison – honest mistakes of warrant

Facts: valid warrant based on PC for a single third floor apartment – officers thought there was only one, but there were two. They arrested defendant and found incriminating evidence in the wrong apartment before realizing and stopped the search.

Holding: Validity of search warrant must be determined on the basis of information that police disclose or have a duty to disclose to magistrate.

o Validity of the search of apartment pursuant to a warrant for the whole third floor depends on whether officers’ failure to realize overbreadth of the warrant was objectively reasonable or understandable.

o Allows some latitude for honest mistakesLos Angeles County v. Rettele – even egregious conduct is forgiven

Facts: Valid warrant was issued for a house and a search of black suspects, but unaware that suspects had moved out. There was registered handgun, so safety concern. During execution of warrant, officers found three white residents, made a 17 year old lay facedown on the floor, and the parents to stand naked for two minutes.

Holding: if mistake is made in executing a warrant, search permissible as long as it was objectively reasonable.

o PC must less than absolute certainty.o In executing search warrants, officer may take reasonable action to secure the

premises and to ensure their own safety and efficacy of the search.o Unreasonable actions include the use of excessive force or restraints that cause

unnecessary pain or are imposed for a prolonged and unnecessary period of time.

Warrant Exceptions**On exam, think about whether you can argue reasonableness with regard to warrants – used by many dissents**

Full list of warrant exceptions: Exigent circumstances

o Hot pursuito Safetyo Preventing destruction of evidence

Searches of things in plain view Automobile searches Searches incident to arrest Inventory searches Protective sweeps Searches with consent Searches when there are special needs Searches of those on probation and parole

Exigencies

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In an emergency, police can search without a warrant if there is probable cause o Court is generally reluctant to find exigent circumstances

Ex: rejected blanket exception for all murder scenes Hot pursuit: 4A does not require police officers to delay in the course of an investigation

if to do so would gravely endanger their lives or the lives of others.o Speed is essential – means immediate pursuit.o Hot pursuit requires that the police be in immediate chase after a fleeing felon, but

does not require that the felony happened at the time of the chase. Ex: If you are looking for bank robber for a robbery that happened last

month, you see robber today, the robber runs – a police may enter the home in hot pursuit as long as they are literally chasing them.

o Must be serious underlying crim in which they are fleeing fromo Must be based on good informationo Absent exigent circumstances, police may not enter a home to make an arrest

without a warrant. Street treated differently – home is more protected.

Warden, Maryland Penitentiary v. Hayden – entering home in hot pursuit Facts: defendant robbed a business, 2 cab drivers followed to a residence, police arrived

“within minutes,” and went into home without a warrant. Holding: Permissible scope of search must be as broad as may reasonably be necessary to

prevent the dangers that the suspect in the house may resist or escapeo Hot pursuit happens immediately after a crime – exigent circumstance of hot

pursuit made this search imperative. Speed essential and only thorough search of house for persons/weapons

could have ensured defendant was only person present.Payton v. New York – if you can get a warrant, get a warrant

Facts: Sufficient PC to believe defendant was guilty of murder. Officers went to his apt to arrest without a warrant, found evidence.

Holding: Absent exigent circumstances, officers may never enter a home during the day to arrest for a dangerous felony unless they obtained a warrant i.e. need a warrant to arrest.

**Grosso’s bright-line rule: absent exigent circumstances, the threshold of the home may not be crossed without a warrant, and you cannot arrest someone in their home without a warrant.

Brigham City v. Utah State – safety Facts: officers saw fight through a window – someone was bleeding. Officers entered

without a warrant to break up the fight. Holding: officers may enter a home without a warrant to render emergency assistance to

an injured occupant or to protect an occupant from imminent injury.o Officers required to prevent people from getting hurt.o Objective standard was it objectively reasonable?o Attempting to do knock and announce would be futile because no one would have

heard them.Kentucky v. King – preventing destruction of evidence

Facts: officers tried to follow a suspect, but suspect went into an apartment. Officers smelled weed coming from another apartment, but wrong apartment. Officers knocked

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and announced, heard movement, and thought they were destroying evidence so they entered.

Holding: a “police created exigency” is a permissible exception to warrant requirement as long as police do not engage or threaten to engage in conduct that violates t4A

o When officers knock on the door, the occupants can “stand on their rights” and choose to be quiet or answer the door and refuse entry.

o If occupants choose to destroy evidence, that’s on them.o Must be facts to prove destruction.

Limits on Exigent CircumstancesWelsh v. Wisconsin – consider underlying gravity of the offense

Facts: report of drunk driving (swerving), officers went to defendant’s home without a warrant and dragged him out of bed to do BAC check.

Holding: Must be a real, immediate, and serious consequence if an officer chooses to postpone action to get a warrant.

o Checking BAC is not an exigency. Application of exigent circumstances exception in a home entry should rarely be allowed

when there is PC to believe that only minor offense has been committed.Missouri v. McNeely – limits on exigent circumstances

Facts: suspect refused to take breathalyzer test even after officers told him that refusal would result in him losing his license; officers took him to hospital for involuntary blood/BAC test.

Holding: Search to take blood and invade their body. A warrant is required unless there are undue delays

o Case by case analysis, determined by totality of the circumstances.o BAC is not per se exigency that justifies a warrantless search in drunk driving

cases Different from other destruction of evidence cases because gradual and

relatively predictable.Birchfield v. North Dakota – limits on exigent circumstances

Facts: Three joined cases where motorists refused BAC tests after lawful arrests. Holding: permissible for state to require a person to submit to a breath test, but not blood

test.o Breath test not search because:

No significant privacy concerns (machine only takes BAC) Humans do not have possessory interest in air in their lungs Breath test is not as invasive (we breathe every day) Breath test is not as embarrassing Government interests outweigh concerns of the breath test.

o Blood test search because: It is significantly more invasive Sample gives more information than BAC Can result in a lot of discomfort Giving states the power to draw blood is not the solution to drunk driving.

Plain View

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If officers are lawfully present in a place, they may use all of their senses. o Comes into play when police have a warrant to search for specified objects and

during the search comes across some other incriminating objects. Must inadvertently come across incriminating object Must have prior justification for intrusion Must be immediately apparent to the police that the seized item is illegal.

Plain view alone not enough to justify warrantless seizure of evidence.o Ex: Moving stereo equipment police believed to be stolen does not qualify for

plain view exception Moving the stereo is a search because officer took action unrelated to

objectives of the authorized intrusion that constituted a new invasion of defendant’s privacy.

Not apparent that stereo was illegal = officers needed PC for their searchCoolidge v. New Hampshire – elements of plain view

Facts: Police investigating murder arrest defendant at home and seized cars without a warrant.

Holding: Where the initial intrusion that brings the police within plain view of an article of incriminating character is supported, not by warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.

o Elements of Plain View: Officer had legal right to be in the place from which they are viewing the

evidence (a prior justification of the intrusion) Criminality (seize-able nature) of the evidence must be immediately

present Discovery of the evidence was inadvertent (however, inadvertence is not

required under Horton)Horton v. California – inadvertence is not required

Facts: defendant robbed someone with a stun gun. Police obtained warrant for rings, not weapons, but found weapons, not rings.

Holding: even though inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.

o Evidence admissible because officers not conducting additional search for the gun – any place the gun would fit, coins would fit, but if they knew about the gun it should be in the warrant.

Arizona v. Hicks – immediately apparent criminality Facts: police entered an apartment without a warrant because shots fired, saw stereo

equipment they though may be stolen, but no PC to support it. Moved equipment to look. Holding: If it is not apparent that the item is contraband, officers need PC.

o Point of doctrine is allow police to grab dangerous/incriminating things without a warrant for their own safety.

o This was search – action unrelated to objectives of the authorized intrusion that exposed concealed portions of the apartments/contents and produced new invasion of privacy.

Minnesota v. Dickerson – plain “feel” doctrine Facts: Officer performed pat-down of defendant during Terry stop after seeing defendant

leave known drug trafficking building. Found small lump in pocket and found cocaine.

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Holding: if officer lawfully pats down suspect’s outer clothing, feels an object whose contour/mass makes its identity immediately apparent, there has been no invasion of suspect’s privacy beyond that already authorized by the officer’s search for weapons; if object is contraband, its warrantless seizure would be justified by the same practical considerations that appear in plain view context.

o First requirement of plain view/feel is that officers have legal right to be where they are based on Terry stop, extremely limited search.

o Terry stop allows for pat-down to involve only what is necessary for detection of weapons; clearly cocaine not a weapon.

Automobile Exception Vehicles may be searched without a warrant if there is probable cause.

o Probable cause controls the scope of the searcho Does not matter if the risk of the evidence moving is diminished

Ex: car is in police control when it is impoundedo Police may search containers in a car, cut open seats.

Higher expectation of privacy in containers and luggage than in vehicles Rationale: 1) mobility and 2) lessened expectation of privacy because subject to

government regulation and control.Carroll v. United States – starting point

Facts: looking for alcohol during Prohibition – PC to believe defendant was transporting alcohol. Police searched vehicle without a warrant and completely dismantled it.

Rule: Touchstone for 4A is reasonableness; must be construed in a manner that will conserve public interests and rights of citizens.

o Not practical to secure a warrant for a movable vehicle can be quickly relocated out of the jurisdiction.

California v. Carney – strength of automobile exception Facts: police conducted a warrantless search of a mobile home. Holding: fact that it is mobile outweighs fact that it is used as a home.

o When vehicle is used on highways/is capable of use for driving: Readily mobile (even if not moving) Reduced expectation of privacy, licensed to operate on public streets

o If court decided not to apply exception to motor homes, causes too technical of a distinction, encourages motor homes to be used for illicit drug use.

Chambers v. Maroney – strength of automobile exception Facts: automobile was at police station, not movable. Holding: if you could search a car on the side of the road, then you can search it in an

impound lot as long as there is PC.o No difference between seizing and holding a car before presenting PC issue to

magistrate and carrying out immediate search without a warrant.o As long as there is PC, either is reasonable.

**Court has extended mobility rule even to the ability to tow the car.Collins v. Virginia – automobile exception does not extend to the home

Facts: stolen motorcycle covered on the driveway inside curtilage of home. Holding: nothing in case law suggests that automobile exception gives officer the right to

enter a home or its curtilage to access vehicle without a warrant

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o Automobile exception requires lawful access to vehicle, just like plain view.United States v. Ross – cited by Acevedo

Facts: informant said he saw defendant complete a drug transaction using drugs stored in the trunk of his car, police stopped his car and searched it.

o Search was no broader/narrower than the scope of a search pursuant to a warrant Holding: A warrantless search of an automobile under Carroll could include a search of a

container or package found inside the car when such a search was supported by PCo Expanded Carroll to allow a “probing search” of compartments and containers

within the automobiles as long as PC existed.o “If PC justifies the search of a lawfully stopped vehicle, it justifies the search of

every part of the vehicle and its contents that may conceal the object of the search.”

Searches of Containers in Automobiles When police lawfully stop a vehicle, they may order driver and passengers to exit.

o If police have PC to believe there is contraband in the car, police can search wherever their PC leads.

California v. Acevedo – searches of containers in automobiles Facts: Police saw defendant leave apartment with a paper bag known to deal weed, put

bag in his truck, police pulled him over, opened the sack in a vehicle they had PC to search.

Holding: If PC justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle, and its contents that may conceal the object of the search. But probable cause that container placed in truck of car contains evidence does not justify search of entire car.

o Police may search a container in a car if there is PC that the container has contraband.

o If police observed driver place a bag, which police had PC to believe contained narcotics, in his trunk, then police could open trunk but could only search the bag.

Policy argument – if police prohibited from opening container that probably contains the object of the search, then more privacy concerns are likely implicated because police would subsequently search every part of the car instead.

**If the container is carried in public, police may seize on PC and hold it while warrant is obtained. If container seized from automobile, police acting on PC may search it without a warrant solely because it was in an automobile.”

Wyoming v. Houghton – searches of passenger’s containers Facts: Passenger’s purse searched when driver was found to have drug paraphernalia on

his person after car was pulled over. Holding: where there is probable cause to search contraband in a car, it is reasonable for

officers, like customs officials, to examine packages/containers w/o showing individualized PC for each one.

o A passenger’s personal belongings, just like the driver’s are in the car and therefore subject to search.

Michigan v. Long – “Terry Stop” of an automobile.

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Police may conduct a cursory “frisk” of a car if there is reason o believe there is a weapon in the car and that the person may gain access to that weapon, even without an arrest.

Search incident to arrestChimel v. California – search is limited to the person

Facts: officers went to defendant’s home with arrest warrant, after arrest they searched his home.

Holding: exception to the requirement for both a warrant and probable cause for a search is the ability of the police to search a person at the time of lawful arrest.

o Reasonable for the arresting officer to search person arrested in order to remove any weapons that arrestee might seek to use in order to resist arrest and escape.

Otherwise, officer’s safety might be endangered, arrest frustrated.o Limited to area into which an arrestee might reach in order to grab a weapon or

evidentiary items. Area within immediate control means area from within which he might

gain possession of a weapon or destructible evidence.o Search unreasonable because it went beyond area in his immediate control.

United States v. Robinson – type of crime does not matter Police may conduct a full search of a person incident to arrest, regardless of the crime

that led to the arrest, even if there is no reason to believe there are weapons. Do not need warrant to arrest someone on the street if you have PC

Knowles v. Iowa – if no valid arrest, then must be risk to safety Facts: defendant stopped for speeding, officer conducted full search of his car without PC

or consent, not arrested prior to search. Holding: search of a stopped vehicle cannot be sustained under the warrantless “search

incident to arrest” exception unless there is a risk to the officer’s safety.o Citation cannot set off a search – need valid arrest.

Riley v. California – how far does a search incident to arrest extend? Facts: officer seized and searched smartphone. Detective analyzed videos and

photographs of defendant making gang signs and other indicia that were stored on the phone to determine if defendant was gang-affiliated.

Holding: Warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data.

o Search incident to arrest doctrine never meant to uphold this level of search into someone’s privacy.

New York v. Belton/United States v. Thornton – search incident to arrest of a vehicle Holding: when police pulled over car and ordered occupants out of the car, may also

examine contents of any open or closed containers found within passenger compartment if it is within reach of the arrestee. Almost never includes a car’s trunk

o Assumption: articles inside the relatively narrow compass of the passenger compartment of an automobile are generally within the reach of an arrestee

o Does not matter if someone already exited the car (got pulled over, started running), as long as police have reason to believe there is evidence in the car and it is reasonable to secure their safety.

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Arizona v. Gant – extends Belton and Thornton Facts: Defendant pulled over for driving with a suspended license, handcuffed and put in

police car, then decided to search vehicle. Holding: Police may search passenger compartment only if:

o Arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search,” or

o It is reasonable to believe evidence relevant to the crime might be found in the vehicle.

Matters why police made the arrest – if reasonable to believe there is evidence of crime in the car then police can search – not reasonable to believe there is evidence of driving under suspended license in the car.

Inventory Searches Police are required to perform an inventory search before a car is impounded in order to

confirm that vehicle has all its components at the time of seizure, to protect against liability claims in the future, and to discover hidden contraband.

As long as police are following standard operating procedures, police may conduct an inventory search.

Not controlled by PC or RSSouth Dakota v. Opperman – inventory searches are standard procedure

Facts: police had car towed because it had been left in a lot and under standard procedures did a search w/o PC, warrant, or arrest.

Holding: Reasonable because conducted under standard operating procedures.Illinois v. Lafayette – inventory searches are standard procedure

Facts: Police arrested defendant for disturbing the peace, police searched his purse. Holding: Reasonable because standard procedure after booking and things are

inventoried.

Protective Sweeps Protective sweep is a quick and limited search of premises, incident to an arrest,

conducted to protect the safety of officers or others.o Must have RS a person may be there who poses a threat to themo Often works with plain viewo Justified by police safety

Key characteristics of protective sweep: o Danger and need to secure the location

Reasonable to believe there was danger Reasonable places it could be

o Know the scope of the search and its durationMaryland v. Buie – protective sweeps

Facts: Officer found defendant in a basement, later went down to check and make sure no one else was in the basement, noticed incriminating evidence in plain view.

Holding: when police arrest a person, may conduct a protective sweep of premises if they have reasonable suspicion that there may be a person who poses a threat to them.

o Sweep may only extend to a cursory inspection of the places where a person may be found.

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Consent Warrantless search permissible without warrant or PC if there is voluntary consent

o Must be voluntary – determined by totality of the circumstances. No obligation to inform individual of right to refuse

o Burden of proof on government to prove free & voluntary consent, totality of the circumstances.

Schneckloth v. Bustamonte – standard of voluntariness Consent must be voluntary. Voluntariness determined by looking at totality of the

circumstances. No obligation to inform individual of right to refuse.o Cannot be coerced, express or impliedo Does not have to be a knowing waiver, can be taken into account.

Ohio v. Robinette – advisement necessary Person lawfully stopped by police but free to leave does not need to be informed by

police of their ability to leave.United States v. Drayton – what do we look for in determining consent?

Facts: Officers entered bus, searched passengers, passengers who declined to cooperate or wanted to exit were allowed to do so

Holding: the doctrine of seizure impacts the doctrine of consent – sometimes when a seizure occurs, there is too much coercion for consent to be valid. Burden of proof on government

o If a reasonable person would feel free to terminate encounter, then they have not been seized.

Person does not need to be informed that they have the ability to leave. Reasonable person test is objective, presupposes an innocent person.

o No application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, no authoritative tone of voice. Setting of bus does not make an illegal search.

Co-occupant consentUnited States v. Matlock – common authority over premises or effects

Facts: defendant arrested in his yard, detained in police car. Wife admitted police into house, consented to search of the house.

Holding: consent of someone who possesses common authority over premises or effects is valid against absent non-consenting person with whom authority is shared.

Illinois v. Rodriguez – “apparent authority” of third party Facts: Woman who did not currently live at the apartment let police into home of man she

accused of beating her. Holding: Consent valid even where based on consent of a third party who police

reasonably believed to possess common authority over the premises, even when no such authority existed.

o “apparent authority” Georgia v. Randolph – two present occupants, one consent

Facts: husband refused consent, wife consented to search.

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Holding: Cannot use evidence against a present, nonconsenting co-occupant; consent of one occupant is insufficient to authorize police to search if another occupant present and objects to search.

Fernandez v. California – non-consenting occupant leaves the premises Facts: defendant did not consent to search, but officers came back later, wasn’t there, and

wife consenting to search. Holding: Although warrantless searches are unreasonable when two co-tenants are

present and one objects to the search, the same search is reasonable when objecting tenant leaves.

Searches when there are “special needs” To assess the constitutionality of a program not designed to serve the ordinary needs of

law enforcement, consider:1. The nature and immediacy of the government’s concerns regarding drug use,

against2. The privacy interest of those being subjected to testing.

Special needs include:o Inventory searcheso Border searcheso Checkpointso School searcheso Searches in jails and prisons

The object of special needs is not about criminalityo Warrants do not need to be obtainedo Often involves searches for reasons other than criminal law enforcement.

Martinez-Fuerte – checkpoint, border monitoring Suspicionless stopping of vehicles at a permanent checkpoint on a highway leading away

from the Mexican border is allowed.o Ability of government to monitor the borders includes ability to have a fixed

checkpoint near the border where cars are stopped to ensure that all are lawfully in the United States

Court extended beyond automobiles – held that mail entering country can be inspected without a warrant

Delaware v. Prouse – checkpoint, suspicionless stops Random suspicionless stops of automobiles by police to check for drivers’ licenses and

registrations not allowed.Michigan Dep’t of State Police v. Sitz – balancing state interest and invasion of privacy

Facts: State sobriety checkpoint program, brief exam for intoxication and detention of individuals who appeared intoxicated.

Holding: brief, suspicionless seizures at highway checkpoints for purpose of combatting drunk driving is constitutional

o Balance of state’s interests in stopping drunk driving and degree of intrusion = weighs in favor of state

City of Indianapolis v. Edmond – stops for visible illegal drugs Facts: Roadblocks set up for purpose of open-view exam of vehicle, walk around with

drug dog. Each stop was 5 min or less, no PC or RS

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Holding: police must have usual requirement of individualized suspicion where they seek to employ checkpoint primarily for ordinary enterprise of investigating crimes.

o Primary purpose of program indistinguishable from general interest in crime control, checkpoint violates 4A

o Sitz focused on drunk drivers; here, general crime controlIllinois v. Lister – public cooperation

Facts: highway checkpoint – police stopped motorists to ask for information about recent hit and run accidents

Holding: officers may seek this kind of voluntary cooperation because similar to approaching people on street about investigation

o Stop’s primary purpose was not to determine whether vehicle’s occupants were committing a crime, but to ask occupants, as member of public, for their help in providing information about a specific crime.

Searches of those on probation or parole Those on parole can be subject to warrantless, suspicionless searches. Requires RS for those on probation Court stresses these individuals consent to such searches as a condition for release

o Diminished expectation of privacyUnited States v. Knights – probation

Facts: defendant was unambiguously informed about lower threshold for search while he was on probation

Holding: when an officer has RS that a probationer subject to search conditions is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring than intrusion on the probationer’s significantly diminished privacy interests is reasonable

o Attempting to prevent re-offenseo Defendant on probation essentially waived his 4A rights because probation is a

continuing sanction that significantly diminishes a person’s reasonable expectation of privacy

Samson v. California – parole Facts: officer recognized defendant as being on parole, searched him solely on this basis Holding: parolee subject to search without RS because diminished expectation of privacy,

defendant clearly accepted terms of parole in unambiguous mannero Parolees have less expectation of privacy than probationers; more akin to

imprisonment than probation is to imprisonment. In legal custody of state; privacy intrusions are therefore tolerated

Seizures and Arrests Arrests must be made on PC, though person may in some cases be stopped by police with

just RSo Illegal arrest/stop generally requires exclusion of evidence gained as its result

Warrant not required for an arrest as long as there is PC, unless in a homeo Hotel rooms treated as homes (reasonable expectation of privacy); absent exigent

circumstances or consent, officers need to meet the requirements of a home

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United States v. Watson – warrant unnecessary for arrest if PC or act committed in presence of officer

Officers are permitted to arrest without a warrant for both misdemeanors and felonies committed in presence of the officer or when there is PC to do so

Must possess information that connect defendant to the crime (so need PC); cannot question without PC

United States v. Mendenhall – when is the person seized? Facts: agents in airport approached defendant, identified themselves, and asked for ID

and ticket. Defendant consented nonverbally. Drugs found on defendant after full body search

Holding: A person is seized only when, by means of physical force or show of authority, their freedom of movement is restrained.

o Can be threatening presence of many officerso Display of a weapono Physical touchingo Use of language or tone indicating that compliance would be compelledo A person has been seized within the meaning of 4A only if, in view of all of the

circumstances surrounding the incident, a reasonable person would have believed they were not free to leave.

If they can disregard and leave, no RS or PC is required. Florida v. Bostick – reaffirms Mendenhall

o Facts: police boarded bus, asked to search luggageo Holding: test is whether a person would feel free to decline officers’ requests or

otherwise terminate the encounter United States v. Drayton – reaffirms Mendenhall

o Facts: three officers on bus, 2 in aisle, 1 in front. Asked to search bags.o Holding: if a reasonable person would feel free to terminate the encounter, then he

or she has not been seized (objective and presupposes an innocent person) Brendlin v. California – reaffirms Mendenhall

o Facts: Police stopped car to check on possible expired registration even though valid tag, recognized passenger as parole violator and arrested him

o Holding: passenger and driver are both seized when riding in a car stopped by police

California v. Hodari – is chasing someone a seizure? Facts: Officers approached a group of youths, panicked and ran, while running defendant

tossed away something that looked like small rock just before officer tackled and handcuffed him

Holding: an arrest has not occurred when a person runs from the police. An arrest occurs when physical force has been applied to a person or when a person submits to the assertion of authority.

o Must be an actual obtention of dominiono Officer’s action was show of authority; but suspect did not comply = not seized

until he was tackled and therefore drug not fruit of seizure.Atwater v. City of Lago Vista – for what crimes may a person be arrested?

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The standard of PC applies to all arrests, without the need to balance the interests and circumstances involved in particular situations. For an arrest, officers need PC to believe a crime – any crime – has been violated

Police may conduct a warrantless arrest for a minor criminal offense punishable only by a fine.

Virginia v. Moore – state law and 4A Facts: arrested for driving without a license, under VA law, driving without a license is

not arrestable Holding: a state law prohibiting an arrest is irrelevant so long as there is PC to make the

arrest permissible. o States may impose stricter search and seizure requirements, but when states go

above 4A minimum, the Constitution’s protections concerning search and seizure remain the same.

Stop and Frisk Seizure: to stop or to arrest

o Stop – kind of seizure – less than arrest Need reasonable suspicion Only a frisk if there is RS the person is armed and dangerous

Where “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others would be warranted in the belief that his safety or that of others was in danger”

o Reasonable suspiciono Officer may conduct a carefully limited search

o Arrest – kind of seizure – more than a stop Need probable cause Search incident to arrest

o Person seized if:1. A reasonable person under the circumstances would believe that he or she

was not free to leave and/or2. Officers use excessive force

Hunch = need consent Level of knowledge matters

o Just a hunch need consento Reasonable suspicion stop frisko Probable cause arrest searcho More knowledge increased invasion of privacy

Should be able to place every case on this lineTerry v. Ohio – the authority to stop and frisk

Facts: officer found defendant’s behavior suspicion and approached. Officer patted him down for safety, found a gun.

Holding: Seizure – not free to walk away. An officer may perform a search for weapons without a warrant, even without PC, when the officer reasonably believes that the person is armed and dangerous

o Balancing test: the privacy rights vs. officers’ interest in safety

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Search based on RS standard: whether a reasonably prudent officer, with their experience, would have been warranted in believing that the person was armed and thus presented a threat to officer’s safety

Not based on huncho The stop must be brief and require minimal intrusion

Must be justified at its inception and reasonably related to the circumstances.

o If a person is detained for sustained interrogation = arrest under 4ADistinction between Stops and ArrestsDunaway v. New York – detainment for sustained interrogation = arrest

Facts: suspect driven to police station, no handcuffs or yelling, placed in small room for questioning

Holding: detention for custodial interrogation intrudes on interests protected by 4A as necessarily to trigger the traditional safeguards against illegal arrest

Florida v. Royer – public concourse in airport to interrogation room = arrest Facts: airplane passenger profiled as drug courier, officers take his ticket and ID, ask him

to follow them to room for questioning and followed Holding: state’s burden to demonstrate that seizure it seeks to justify on basis of RS was

sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure

o Investigative detention must be temporary; last no longer than is necessary; and methods employed should be the lease intrusive ones available

Hayes v. Fl/Davis v. Missouri – fingerprinting – it depends Taking a suspect to the police station for fingerprinting was an arrest, but fingerprinting

in a field test has not always been held to always constitute an arrestUnited States v. Place – duration of the stop matters – arrest

Facts: police detained defendant at airport for 90 min while waiting drug dog Holding: detaining defendant on 90 min on RS violated 4A and was an arrest.

United States v. Sharpe – duration of the stop matters – stop Facts: Detained defendant on highway on suspicion they were transporting drugs; 1

stopped, 2nd evaded causing 20 min delay for 1st car Holding: if an investigative stop continues indefinitely, at some point it can no longer be

justified as a stopo No hard and fast time limito In this case – 20 min delay is permissible and was a stop, not arrest

Michigan v. Long – “frisk” of a car Police may conduct a cursory “frisk” of a car is there is reason to believe that there is a

weapons in the car and the person may gain access to itMinnesota v. Dickerson – plain “feel” during a frisk

Facts: officer manipulated the lining of defendant’s clothing to see if there were drugs Holding: during a frisk, officers may seize evidence that is apparent to their “plain feel”,

but this was beyond the bounds of a stopHiibel v. Sixth Judicial District Court of Nevada – what may police do when stopping individual

Facts: defendant refused to identify himself to officer, violated a stop and identify statute. There was RS

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Holding: neither 4A nor 5A violated when an individual is arrest for not providing their name to officer after officer asks for it

o Asking for name = not a search, legit governmental interest because helps assess threats and outstanding warrants

o Asking questions does not by itself constitute a search and seizure

Reasonable Suspicion Reasonable suspicion does not rule possibility of innocent conduct

o Just must be reasonable in the totality of the circumstancesUnited States v. Arvizu – general principles

Facts: unanimous decision that there was reasonable suspicion to believe that the plaintiff was smuggling drugs, so officer pulled him over

Holding: when making reasonable suspicion determination, courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting wrongdoing

o The finding of reasonable suspicion does not have to rule out the possibility of innocent conduct

Alabama v. White – informant tip Facts: anonymous tipster stated defendant would be leaving certain apt at certain time in

a brown station wagon with right taillight out going certain direction with drugs. Officer corroborated.

Holding: anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that defendant was engaged in criminal activity and that the investigative stop therefore did not violate 4A

o Anonymous tip contained info that was not “easily obtainable” and 3rd parties would not be able to predict it

o Predicting future behavior is the most dispositive only a few people are privy to an individual’s itinerary

Florida v. JL – informant tip Facts: anonymous tip – apart from the tip, there was no reason to suspect any of them

were involved in illegal conduct Holding: the reasonable suspicion here requires that a tip be reliable in its assertion of

illegality, not just in its tendency to identify a determinate persono Anonymous tip that a person is carrying a gun is not, without more, sufficient to

justify an officer’s stop and frisk of that personNavarette v. California – anonymous tip

Facts: anonymous tip about drunk driver from 911 call Holding: reasonable suspicion depends on the factual and practical considerations of

everyday life on which reasonable and prudent men acto Under this approach, we know certain behaviors indicate drunk drivingo Because anonymous tip 1) bore adequate indicia of reliability – even though it

was anonymous, 911 calls can be traced 2) claimed eyewitness knowledge 3) was a contemporaneous report and 4) was consistent with a report of drunk driving; officer had sufficient RS and did not need to observe alleged behavior at length

Illinois v. Wardlow – avoiding a police officer

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Facts: defendant was holding an opaque bag in a heavy drug area, inexplicably fled from officers in the area

Holding: nervous, evasive behavior pertinent factor in determining RS to justify stop.o Case by case analysiso Officers are not required to ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently suspicious to warrant further investigation

United States v. Sokolow – profiling A court sitting to determine existence of RS must require agent to articulate the factors

leading to that conclusion, but the fact that these factors may be set forth in a profile does not somehow detract from their evidentiary significance as seen by a trained agent.

THE EXCLUSIONARY RULE

The Exclusionary Rule: material obtained in violation of the Constitution cannot be introduced at trial against a criminal defendant

Deters police misconduct Keeps courts from being tainted by inclusion of illegal evidence and convicting people

based off of illegal evidence Exclusionary rule sends powerful message that the government cannot and will not

benefit from wrongdoing by its officersSuppression hearing – primary mechanism for raising the exclusionary rule

Defendant seeking to challenge truthfulness of statements made in warrant applications must make a showing to a jury that the officers who prepared the warrant engaged in deliberate falsification or reckless disregard for the truth

Presumption of validity with respect to the affidavito Need allegations of deliberate falsehood and reckless disregard for the truth;

negligence or innocent mistake insufficient High evidentiary bar in favor of the officers.

Hudson v. Michigan – too high of a social cost to apply the excl. rule to knock and announce Facts: police had warrant, but violated knock and announce rule Holding: excl. rule has never been applied except where its deterrence benefits outweigh

its substantial societal costs.o Costs are considerable. Ignoring knock and announce can realistically be expected

to achieve nothing but the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises

Dangers which, even if there is RS, suspend K&A requirement anywayWeeks v. United States – origins of excl. rule

If property is seized in violation of 4A, it may not be admitted into evidence for trialMapp v. Ohio – exclusionary rule applies to states

Extends the exclusionary rule to states because the exclusionary rule has an “intimate relationship” with due process

Herring v. United States – when to apply the excl. rule Facts: system said there was a warrant for defendant, but system was not updated.

Defendant arrested and officers found meth in his car

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Holding: to trigger the exclusionary rule, the police misconduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system

o A criminal defendant’s 4A rights are not violated when police mistakes that lead to unlawful searches are merely the result of isolated negligence and “not systemic error or reckless disregard of constitutional requirements”

o Excl. rule does not apply here because negligent bookkeeping was mistake, can’t deter mistake because it was an accident.

**when talking about exclusionary rule, address if the behavior is something that should or can be deterred**

Davis v. United States – meaningful deterrence Facts: new law, police didn’t know, conducted arrest based on old statute Holding: police practices trigger the harsh sanction of exclusion only when they are

deliberate enough to yield “meaningful” deterrence, and culpable enough to be “worth the price paid by the justice system”

o Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to exclusionary rule because suppression would do nothing to deter misconduct in this case, and it would come at high cost to both truth and public safety

Who can raise the exclusionary rule?Rakas v. Illinois – standing

Only those whose 4A rights were violated may raise the excl. rule. In other words, a person cannot raise the excl. rule just because they are aggrieved by an illegal search; to raise the excl. rule a person must show a violation of their 4A rights

A person cannot assert a right that belongs to someone else – who has the expectation of privacy?

Minnesota v. Carter – can a temporary resident raise the excl. rule? Facts: defendant arrested in third party’s home for bagging cocaine. Not overnight guests

– there on “business” (which was illegal business) Holding: short term visits for commercial transactions are not protected by 4A

o Did not treat the home as a homeo Only there for a few hours and it was a business purposeo Commercial property has a diminished expectation of privacyo Short term visitors in a home have no legitimate expectation of privacy

Minnesota v. Olsen – can an overnight guest raise the exclusionary rule? Facts: police entered residence where defendant had been staying w/o warrant or consent.

Defendant was overnight guest. Holding: An overnight guest has a legitimate expectation of privacy and therefore may

raise the exclusionary ruleBrendlin v. California – can a car passenger raise the exclusionary rule?

Facts: police stopped car for expired registration, defendant had warrant out for his arrest and was riding in passenger seat. Drugs found in the car

Holding: during a traffic stop, officer seizes everyone in the vehicle, not just driver.o Passenger is justified in asserting 4A protection against unreasonable search and

seizure

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Exceptions to the Exclusionary Rule

Independent Source: even if police obtain evidence in violation of 4A, still admissible if it is also obtained through a source independent of the police misconduct and untainted by the illegal actions of the police

Lawful search is not connected to constitutional violation Puts police in the same, not worse position than they would have been if no police

misconduct had occurredMurray v. United States – independent source doctrine

Facts: agents are watching a warehouse, see tractor trailer drive away, lawfully seize vehicle, find marijuana. Officers go back, break into warehouse without warrant, and found bales. Left, applied for a warrant, and came back without mentioning the unwarranted entry

Holding: Officers obtained lawful warrant without relying on the information they obtained illegally, so it came from independent source

o Independent investigation that has a lot of evidence, and if they had continued on the path they would have gotten to search without any issue.

Inevitable Discovery: if the police can demonstrate that they inevitably would have discovered the evidence, without violation of 4A, the exclusionary rule does not applyNix v. Williams – inevitable discovery rule

Facts: massive search underway for a missing girl. During the search, defendant makes statement to the police without a lawyer present in violation of 6A that helps lead the police to the body

Holding: The body of the child inevitably would have been found by the search team absent the statements

Inadequate Causal Connection – Attenuation of the Taint: Exclusionary rule applies if there is a substantial causal connection between the illegal police behavior and the evidence

All evidence that is the product of the illegal police activity (fruit of the poisonous tree) must be excluded

If the link between the illegal police act and the evidence is attenuated, then the evidence is admissible.

Wong Sun v. United States – attenuation of illegal arrest Defendant’s statements to police at time of arrest had to be excluded as the fruits of his

unlawful arrest because arrest was illegal. His actual arrest had no PC or RS However, defendant later came back to the police with a lawyer to confess. Confession

admissible because the connection with the earlier illegal police activity became so attenuated as to dissipate the taint

o Defendant’s return = intervening cause of free will confession admissible Need not hold that all evidence is fruit of the poisonous tree. “the more apt question in

such a case 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.”

Brown v. Illinois – application of attenuation doctrine

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Mere fact defendant received Miranda warning before confession is not sufficient to purge the taint of the earlier illegality

In order for causal chain to be broken (between the illegal arrest and statements made subsequent), attenuation doctrine requires not merely that the statement meet 5A standard of voluntariness, but that it be sufficiently an act of free will to urge the primary taint

o Miranda alone is not enough a product of free will to break the causal connectiono Temporal proximity of arrest and confession, presence of intervening

circumstances, and purpose and flagrancy of official misconduct are all relevant. Voluntariness of statement is threshold requirement

Utah v. Strieff – attenuation doctrine Facts: anonymous tip indicated drug sales. Officer surveilled residence and

unconstitutionally stopped defendant. Officer discovered outstanding warrant, arrested him. Officer conducted lawful search afterwards, found drugs.

Holding: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would be served by suppression of the evidence obtained.

o Three factors: Temporal proximity – close in time Intervening circumstances – got a warrant, predated unconstitutional stop Flagrancy of the misconduct – officer did not try to violate rights (at most,

negligent) Outstanding warrant is critical intervening circumstance that is wholly independent stop.

o Discovery of warrant broke causal chain, compelled officer to arrest defendantRawlings v. Kentucky – more attenuation doctrine

Facts: Defendant illegally detained in his home while police went to obtain search warrant, made incriminating statements during this time

Holding: sufficiently attenuated so as to allow statements to be admittedo Lack of flagrant misconduct by the police, lack of coercive atmosphere,

statements were spontaneous result of the discovery of evidenceNew York v. Harris – more attenuation doctrine

Facts: statement made by a suspect at the police station house following an illegal search of the suspect’s home

Holding: evidence from warrantless search would need to be excluded, but statements were admissible

Good Faith Doctrine: exclusionary rule does not apply if police reasonably rely on invalid warrant to conduct a search and seizure

Narrow exception – good faith reliance on court employees who did not make errors intentionally

Herring v. United States – good faith doctrine The exclusionary rule does not apply to negligent or good faith violations of 4A

United States v. Leon – objectively reasonable reliance Facts: anonymous informant’s tip, police applied for search warrant of defendant’s home,

found illegal drugs, but affidavit for warrant was insufficient in its showing of PC. Holding: the value of deterrence is not addressed by punishing a good faith mistake

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o Reliance on a warrant does not shield a search from exclusionary rule if the affiant knew or should have known the affidavit false, except for reckless disregard of the truth

Massachusetts v. Sheppard – reasonable reliance Facts: police investigated murder obtained warrant to search defendant’s residence, used

pre-printed warrant that said “items to be seized: ‘controlled substances.’” Judge had said he would change it, but didn’t.

Holding: exclusionary rule should not be applied when officer conducting search acted in objectively reasonable reliance on a warrant issued by detached and neutral magistrate that subsequently is determined to be invalid

Illinois v. Kroll – statute Facts: search pursuant to state statute of a junkyard, statute turned out to be

unconstitutional Holding: good faith reliance on an unconstitutional state statute is fine **quashed warrant used to arrest/search someone not okay because exception only

applies when there is warrant.**

Exceptions for Violations of “Knock and Announce” RequirementHudson v. Michigan

Exclusionary rule does not apply for knock and announce violations Question after Hudson: whether police will have sufficient incentive to comply with

K&A requirement knowing evidence will not be excluded, and if not, whether exception justified by benefits of the evidence being introduced.

POLICE INTERROGATION & PRIVILEGE AGAINST SELF-INCRIMINATION

Fifth Amendment: “No person shall be compelled in any criminal case to be a witness against himself

Confessions must be free and voluntaryo Regardless of whether Miranda rights were waived

Involuntary confessions violate the right against self-incrimination and are inadmissible

Voluntariness Requirement Prosecution has burden of proving confession is voluntary in order to admit it into

evidence Even if confession deemed voluntary and is admitted, defendant can still argue to jury

that confession was obtained under circumstances/conditions that make it unreliableBrown v. Mississippi – physical torture to get confession not allowed

Facts: Black male beat by white men to get confession Holding: 14A due process clause violated when confession obtained by physical torture

o Basic requirement for admission of confession: must be free & voluntaryAshcroft v. Tennessee/Payne v. Arkansas – deprivation of basic bodily needs

Facts: no food for 24 hours, questioned by relay of officers who told him mob was waiting for him outside and they would give him to them if he didn’t confess (Payne)

o No sleep for 36 hours (Ashcroft) Holding: Voluntariness is totality of the circumstances inquiry

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o Look to the length of interrogation, and whether defendant was deprived of basic bodily needs (food, water, access to bathroom), especially when the suspect has been denied those basic needs

Arizona v. Fulminante – use of force and threat of force Facts: undercover agent in prison offered protection from other inmate in exchange for

the truth about a murder to get him to confess Holding: fear of physical violence, absent protection, that motivated confession;

therefore, coercedo Implicit threat, analogous to Payne

**what factors mattered the most if you were to argue coercion – credible threat**Spano v. New York – psychological pressure tactics

Facts: defendant repeatedly denied access to attorney, questioned over 8 hours, and officers brought in his friend who played on their friendship in order to get him to confess

o Defendant was foreign born, no history with law enforcement, one semester of high school, with history of emotional instability, and was subjected to leading questions by prosecutors and confessed early in the morning

Holding: will of defendant was overborne **subjective inquiry on whether this person’s will was overborne**

Lynumn v. Illinois – deception Facts: police told defendant she would not be prosecuted if she confessed, but if she

didn’t, she would spend 10 years in jail and her kids taken away Holding: confession could not be deemed voluntary because of deception

o Court has been tolerant of many police techniques Ex: lying to suspect, saying accomplice confessed Ex: acting as a friend, expressing sympathy for suspect

Age, level of education, and mental condition of suspect matters Threat of a false confession is way too high, coercion will look different Payne – court stressed he had 5th grade education Spano – foreign-born, one semester of high school Culombe – suspect illiterate and of low intelligence Crooker – had completed a year of law school, more likely to be voluntary confession **Regardless of mental condition, if there is no police misconduct, it is considered a

voluntary confessionColorado v. Connelly – mental conditions

Facts: Defendant approached officer, confessed to murder, officer immediately gave him Miranda rights that defendant then waived. Denied substance abuse and officer said “he seemed to understand nature of acts”

o Defendant was visibly disoriented the next day and discovered he was suffering from chronic schizophrenia, which caused his confession

Holding: there must be a link of the coercive activity of the state and a resulting confession.

o Coercive police activity is necessary predicate to the finding that a confession was involuntary

o No deterrence effect to precluding statements made without police misconduct

Miranda Rights

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Voluntariness test does not provide much guidance to police in terms of questioning; judges have a lot of discretion in “totality” inquiry, so officers prefer Miranda rights

**Cannot be a civil suit for violation of Miranda (Chavez v. Martinez)Miranda v. Arizona – Miranda rights

The prosecution may not use either exculpatory or inculpatory statements stemming from custodial interrogation of defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

o The defendant may waive these rights, but a waiver must made voluntarily, knowingly, and intelligently.

o State must show that suspect made an express statement. Silence not enough. Miranda does not overrule or replace the requirement that admission of a confession

must be free or voluntary If a person in custody is subjected to interrogation, he must first be informed at the time

of his interrogation in clear and unequivocal terms that:o Right to remain silento Anything you say can and will be used against you in courto Right to an attorney (before and after interrogation)o If cannot afford an attorney, one will be provided

If Miranda rights are not given, confession is absolutely excluded.o State has burden to prove warnings were given; does not matter if:

Statements were voluntary or involuntary Statements were exculpatory (innocent) or inculpatory (guilty) Arrested previously

Rights during interrogation:o Defendant may stop interrogation when he no longer wants to talk, does not have

to be pre-interrogationo If police are questioning = interrogationo Blurting something out =/= interrogation

Dickerson v. United States – settled constitutionality of MirandaCustody: Whether police acted in a manner that would lead a reasonable suspect to believe that he was in police custody of the degree associated with formal arrest

A person free to leave is not in custody = Miranda rights not requiredo Ex: statements made in meeting with person’s probation officer =/= custodial

context; no Miranda requiremento Ex: if suspect came voluntarily to station =/= custodyo Ex: suspect questioned by state expert = custodyo Ex: if IRS agent questions taxpayer about potentially criminal income tax

violations =/= custody Determination of whether person in custody is objective

o Officer’s subjective/undisclosed view concerning whether person being interrogated is irrelevant

Oregon v. Mathiason – custody is an objective test Facts: Defendant asked to come to police station for questioning, came freely,

immediately informed he was not under arrest. Defendant was in interrogation room,

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officers lied stating his fingerprints were at the scene defendant confessed, then he was read his rights and did a taped confession

Holding: To determine if someone is in custody, must determine whether the police acted in a manner that would lead a reasonable suspect to believe that he was in police custody of the degree associated with formal arrest.

o Objective standard – defendant went to station voluntarily, not questioned long, told he was not under arrest.

o Voluntary interview – not “deprived of his freedom in any significant way”Orozco v. Texas – custody

Facts: officers dragged defendant out of bed at 4 am and questioned him. Officers testified he was under arrest when he gave his name.

Holding: a person who has been arrested is in custody, Miranda warnings are required, even in the person’s home.

o Freedom of action deprived in significant way.Stansbury v. California – officer’s subjective view irrelevant

An officer’s subjective and undisclosed view concerning whether person being interrogated is a suspect is irrelevant to the assessment of if the person is in custody

JDB v. North Carolina – effect of age on custody Facts: 13-year-old special ed student questioned at the school in presence of school

officials; parents not contacted, juvenile detention mentioned, and he confessed, then he was read his Miranda rights

Holding: so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.

o Age is more than a chronological fact. Children are less mature/responsible and more vulnerable/susceptible to outside pressures.

Law has historically reflected same assumption that children cannot exercise mature judgment

o Beyond dispute that reasonable child subjected to police questioning could feel pressured to submit when reasonable adult would feel free to go

Berkemer v. Murphy - Terry stops do not constitute custody Facts: defendant pulled over for weaving, asked if he had been using intoxicants,

affirmed, then placed under arrest. Holding: roadside questioning compared to Terry stop, which do not constitute custody

because they are presumptively temporary detentions and not the kind where a motorist “feels completely at the mercy of the police.”

o As long as it does not exceed the bounds associated with stop and frisk, does not implicate Miranda

o Terry stop is kind of seizure, but not every seizure is a custodial arrest for Miranda

Interrogation: words/actions of police that police should know are reasonably likely to elicit an incriminating responseRhode Island v. Innis – defining interrogation

Facts: defendant arrested and read his Miranda rights, which he said he understood. On the way to station, officers spoke to each other about concern for handicapped students injuring themselves which prompted confession from defendant.

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Holding: Miranda refers not only to express questioning, but also to any words/actions on part of police that police should know are reasonably likely to elicit an incriminating response from the suspect.

o Interrogation: express questioning or functional equivalento Objective standard – focusing on perceptions of suspect rather than intent of

policeo Practice that objective officer should know is reasonably likely to evoke

incriminating response from suspect = interrogationo If police knew that person would be affected by something more than another =

taken into account; as is ageIllinois v. Perkins – undercover agents

Facts: Defendant freely admitted to murder to undercover officer posing as inmate Holding: Miranda warnings not required when undercover agent asks questions that

could result in incriminating statements because these conversations not done in a “police dominated atmosphere” where compulsion to confess is present

o Defendant was not in custody conversing with government agent because agent was undercover and therefore defendant unable to prove there was coercion

o Plots to mislead suspect or lull him into false sense of security that do not rise to level of compulsion or coercion to speak are not within Miranda’s concerns

If he had been removed from gen pop and taken to interrogation room, different Hoffa v. United States – placing undercover agent near suspect is permissible

California v. Prysock/Duckworth v. Eagan – no required incantation of Miranda warnings No particular incantation required for Miranda warnings as long as rights are adequately

conveyed, so that the reference to the right to appointed counsel is not linked with some future point in time after the interrogation

Oregon v. Elstad – un-coerced confession without Miranda rights Facts: officers went to defendant’s home who then confessed without Miranda warnings.

Officer took defendant to station, read him his rights, and he waived and confessed again Holding: suspect who has once responded to unwarned yet uncoercive questioning is not

disabled from waiving his rights and confession after he has been given the requisite Miranda warnings

o Absent deliberatively coercive or improper tactics in obtaining the initial statement, the mere fact a suspect has made an unwarned admission does not warrant a presumption of compulsion

o More like a good faith mistake – open to correction by careful warnings before systematic questioning

Second confession is admissible because of amount of time between 1st and 2nd confession and situation of 2nd confession

Missouri v. Seibert – uncoerced confession without Miranda rights Facts: officers got a confession, then give Miranda rights, then get another confession Holding: in order to use post-Mirandized confession, after eliciting an un-Mirandized

confession, police must give break that is sufficient to give suspect the reasonable belief that he has the right not to speak with the police.

o Distinguished from Elstad – since a reasonable person in Elstad could have seen station house questioning as new and distinct experience, then Miranda warnings

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could have made sense as presenting genuine choice whether it was a follow up on the earlier admission

o Deliberate 2-step strategy is based on violating Miranda by adding them in the middle so the confession must be excluded.

United States v. Patane – use of physical evidence and Miranda Facts: before completion of Miranda rights being read to him, he confessed to having a

gun Holding: Physical evidence obtained from un-Mirandized statements, as long as those

statements were not forced by police, were constitutionally admissibleo “witness” in 5A = testimonial evidence

North Carolina v. Butler – implied waiver of Miranda rights Facts: defendant refused to sign form waiving his rights, said he understood, still

confessed Holding: implied waivers are allowed via actions; an express written/oral statement of

waiver of the right to remain silent or right to counsel is usually strong proof of the validity of the waiver, but are not always necessary to sufficient to establish a waiver

o Waivers are determined from the totality of the circumstances – whether it is “reasonably likely that the suspect understood his rights?”

**“events occurring outside of the presence of the suspect and entirely unknown to him can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”

Berguis v. Thompkins – relinquishment of Miranda rights Facts: Defendant refused to speak for extended period of time after he got his Miranda

rights, but eventually incriminated himself Holding: suspect who has received and understood Miranda warnings and has not

invoked his Miranda rights, waived the right to remain silent by making an un-coerced statement to the police

o Law may presume that an individual who, with a full understanding of his rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.

Salinas v. Texas – protection of 5A Facts: Defendant was never given his rights, but never spoke. He was not in custody and

came freely. When he was asked about the crime, defendant said nothing but looked nervous. Defendant was charged for murder based on his reaction

Holding: 5A does not establish complete right to remain silent but only guarantees that defendant may not be forced to testify against himself. Therefore, as long as police do not deprive defendant of opportunity to claim 5A privilege, no constitutional violation

o 5A’s privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning because privilege is not self-executing and must be claimed.

Michigan v. Mosley – Re-mirandizing for different crime = right to silence Facts: defendant invoked rights for specific crime. Later questioned about different

crime, did not invoke rights Holding: re-initiation of interrogation after suspect has invoked his right to silence is not

per se violation of Miranda rights, as long as suspect’s invocation is honored. Criminal

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suspect’s assertion of his right to remain silent after a Miranda warning does not preclude the police from re-Mirandizing him and questioning him about different crime.

Edwards v. Arizona – defendant must initiate conversation to waive Miranda Facts: defendant invoked rights, questioning ceased, taken to jail. Officers came the next

day, defendant said he did not want to talk, but guard said he had to. Defendant was re-mirandized and defendant confessed

Holding: if defendant invokes the right to counsel, the police cannot initiate further interrogation unless the suspect initiates the communications

o Waivers must be voluntary and constitute a knowing and intelligent relinquishment or abandonment of a known right

o When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police initiated custodial interrogation even if he has been advised of his rights.

Minnick v. Mississippi – right to counsel Facts: defendant was interrogated, said “come back on Monday when I have a lawyer,”

then met with attorney 2-3 times. When police came back, he did not have his lawyer. Holding: when counsel is requested, interrogation must cease, officials cannot reinitiate

interrogation without counsel present, whether or not accused has consulted with an attorney

Maryland v. Shatzer – 14-day rule Facts: defendant invoked right to counsel in 2003, in 2006 was interrogated without

attorney and made incriminating statements Holding: Though defendant was released back into gen pop, he entered back into his

normal life and was free of the pressures of investigative custody for a sufficient period of time

o Lawful imprisonment does not create the coercive pressures identified in Mirandao When suspect has been released from his pre-trial custody and has returned to his

normal life for some time before the later attempted interrogation, there is little reason o think that his change of heart regarding interrogation without counsel has been coerced

14 days sufficient and provides the time needed for defendant to reacclimatize to normal life, consult with others, and shake off any residual effects of his prior custody

Not being “worn down” by the “prolonged police custody”Davis v. United States – request for counsel must be unambiguous and unequivocal request

Facts: suspect said “maybe I should talk to a lawyer” – questioning continued. Suspect said “I think I want a lawyer before I say anything else” – questioning stopped.

Holding: if suspect’s statement is not an unambiguous or unequivocal request for counsel, officers have no obligation to stop questioning. No requirement to clarify whether defendant wants attorney or not.

Test: whether reasonable officer under the circumstances would understand statement to be request for an attorney

Miranda Exam Question – two threshold questions

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First argument made when litigating Miranda rights is that there was no custody. So before discussing Miranda, decide if defendant is in custody. If not, then no requirement to issue Miranda warnings.

Was the suspect in custody?o Was he taken into custody expressly or otherwise implicitly deprived of his

freedom of action in any significant way?o Test: whether police acted in a manner that would lead a reasonable subject to

believe he was in police custody of the degree associated with formal arrest. Objective, not subjective

o Custody Police questioning of a suspect in his bedroom at 4 am – Orozco Psychiatric examination of a suspect – Estelle

o Not custody Suspect comes voluntarily to the station for questioning – Mathiason IRS questions taxpayer about potentially criminal income tax violation –

Beckwith Often does not apply to conversation between probation officer and person

on probation – Murphy Was the suspect in interrogation? Questioning initiated by law enforcement officers.

Custody Interrogation How to invoke right to counsel

Right to silence – reinitiate questioning?

Right to counsel – reinitiate questioning?

MathiasonBerkemer

Innis DavisBerghiusSalinas

Mosley Edwards v. ArizonaBUT Shatzer

Exceptions to MirandaThree major exceptions:

Statements used for impeachment purposes Statements obtained in emergency situation Statements made at time of booking in response to routine questions by police

Impeachment: statements gained from criminal defendant are admissible for impeachment purposes if the defendant chooses to testify at trialHarris v. New York – impeachment

Facts: during cross-exam, prosecution attempted to impeach defendant’s earlier testimony by asking questions about unwarned statements he made following arrest.

Holding: evidence inadmissible for lack of Miranda warnings does not prevent admission of evidence for all purposes if the admission satisfied another legal admission, such as impeachment.

o Court has no obligation to help defendant lie **Policy: SCOTUS found that speculative possibility that police misconduct would be

encouraged was outweighed by value of admitting statement into impeachment processo Miranda “shield” cannot be perverted into license to use perjury as a defense, free

from risk of confrontation with prior inconsistent utterances.Emergencies: statements obtained by police from suspects during emergency situations could be used against a criminal even if Miranda warnings were not properly given.New York v. Quarles – emergencies

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Facts: victim approached officers, said she was raped, described defendant in detail and said he had a gun. Officers found him in the market, arrested him, and asked him where the gun was.

Holding: overriding considerations of public safety can justify officer’s failure to provide Miranda warnings. Used when “spontaneity rather than adherence to police manual is necessarily the order of the day.”

o While there could be bad motives by police, a reasonable concern for public safety = questions justified

Booking: police may ask a person questions when taking a person into custody that are needed in the booking process, such as name, address, date of birth, height, and weight. Questions beyond this are excluded.Pennsylvania v. Muniz – booking

Facts: officer asked defendant his birthday, began slurring Holding: privilege is only applied if a person is compelled to make statements. Physical

evidence or observation of physical characteristics are not testimonial. **Court held question such as “what is the date of your 6th birthday” be suppressed

because it was beyond the scope of booking questions

THE SIXTH AMENDMENT RIGHT TO COUNSEL6A: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense.

Summary of 6A: 6A provides that in all criminal prosecutions, the accused shall enjoy the assistance of counsel for his defense.

6A right to counsel applies to police interrogations that occur after adversarial proceedings have begun AND/OR when judicial proceedings have been initiated against the accused whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

o Applies to all efforts by the police to deliberately elicit statements from a person after formal criminal proceedings have been initiated, vs. 5A right to counsel which applies only to in-custodial interrogations.

Chronology of the Investigation of a Crime1. Crime occurs/investigation begins2. Police identify suspect (Miranda v. Arizona) / (Escobedo v. Illinois)3. Indictment (Massiah v. United States)4. Arrest (Brewer v. Williams)5. Trial

Massiah v. United States – deliberate elicitation Facts: Defendant indicted on narcs charges, released on bail. Co-defendant agreed to

cooperate with the police, wore a wire and elicited incriminating statements from defendant

Holding: incriminating statements deliberately elicited by federal agents in the absence of counsel after judicial proceedings have begun violates 6A.

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o Subjective testo Prosecution could not use incriminating statements – deliberately elicited after

proceedings had begunBrewer v. Williams – once adversarial proceedings begun, defendant has right to counsel

Facts: Defendant kidnapped and killed young girl, turned himself in, attorney advised him not to speak and told officers not to question him. He was charged, arraigned, and taken back to original city. Attorney said again, don’t say anything, and officers – don’t question him. Officer began speaking to him about Christian burials knowing he had escaped from mental institution and was deeply religious in attempt to elicit statement from him. Defendant confessed.

Holding: Once adversarial proceedings have commenced, defendant has a right to legal representation when the government interrogations.

o Waiver of right to counsel must be intentional relinquishment or abandonment of known rights or privilege, just like Miranda.

o Defendant was interrogated – reasonable officer knew this was likely to elicit an incriminating statement.

o Essential elements – 1) after indictment, 2) outside presence of counsel, 3) absence of any waiver of 6A rights.

**5A applies whenever a suspect is in custodial interrogation, but dissipates when they are not in custodial interrogation unless he has asserted a right.**

**6A rights “attach and walk around” but only apply to the offense that has been charged.”

Texas v. Cobb – 6A is offense-specific Facts: Defendant in custody on suspicion of unrelated crimes, but confessed to one crime

and not the other. Released on bond, brought in for another crime, waived Miranda and confessed.

Holding: 6A is offense-specific and will not necessarily transfer to another offense regardless of close factual relationship

**Blockburger test: to determine whether they are the same offense – where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine where there are two offenses is whether each provision requires proof of fact which the other does not.**

Waiver of 6A6A right to counsel may be waived, but must be made knowingly, voluntarily, and intelligentlyMontejo v. Louisiana – waiver

Facts: defendant was questioned, waived Miranda, and finally confessed to murder. He was brought before judge for prelim hearing, later, officers visited him in jail, asked him to help find the murder weapon, read him his Miranda rights, and he wrote an inculpatory letter apologizing to victim’s widow.

Holding: police may reinitiate interrogation after Miranda rights have been read. However, if a defendant has asserted his 5A rights and adversarial proceedings have begun, police may not reinitiate questioning without counsel present and waiver, or unless defendant initiates the conversation and waives his rights.

o Police did not deliberately elicit, so defendant’ statement is admitted as voluntary – he also was told his rights and given full information.

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Impermissible ElicitationUnited States v. Henry – leading questions constitute deliberate elicitation

Facts: undercover agent asked leading questions to defendant who was already indicted. Holding: Deliberate elicitation when the government creates the situation that is likely to

induce the defendant to make certain statements.o 6A attaches after formal proceedings have been initiated.o Important factors: 1) cellmate under instructions as paid informant for gov’t, 2)

informant appeared to be just another inmate, 3) defendant was in custody and under indictment at the time he was engaged in conversation by the informant.

Kuhlmann v. Wilson – listening is not deliberate elicitation Facts: undercover agent listened to defendant and heard him make incriminating

statements. Holding: when the police plant an informant with jailed suspect and the informant does

not ask questions, the suspect’s statements to the informer are admissible unless the informant took coercive steps other than listening in order to elicit incriminating information.

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Comparing 5A to 6A

5A 6AEarliest Application

Applies whenever there is custodial interrogation

Applies only after judicial criminal proceedings have been initiated against the accused- indictment, arraignment, charges, prelim hearing, info

Custody Does not attach unless someone is in custody

Does not require custody

Offense-specific

Miranda applies regardless to charges, so long as there is custodial interrogation

Offense-specific: only applies to crimes for which criminal proceedings have commenced

What actions by the police?

Applies when custodial suspect interrogated- objective test- any words or actions on part of police that the police should know are reasonably likely to elicit an incriminating response from the suspect

Prohibits deliberate elicitation – focuses on intentions of the officer (intent or reckless)

Undercover agents

Miranda does not apply – no coercive atmosphere, no custody issue

Applies to deliberate elicitation by undercover agents

Waiver Under Miranda – no duty to cease, unless request occurs under circumstances in which it can be reasonably construed to be an expression of request for counsel

Request for 6A not currently limited in this manner

Proximity in time to interrogation for assertion of right

Doubtful whether suspect may initially invoke his 5A right to counsel at any time other than immediately prior to or during police custodial interrogation

Defendant may currently assert 6A right to counsel during judicial proceeding and not simply while in police custody preceding or during the interrogation

Re-approach Once person successfully asserts 5A right to counsel regarding an offense, may not be re-initiated regarding any other offenses unless counsel is present

Because 6A is offense-specific, invoking the right to counsel does not bar questioning regarding unchanged offenses

Exclusionary Rule

Doctrine does not exist or is far more limited in Miranda context

Fruit of poisonous tree principles apply to 6A violations.

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