Criminal Procedure I

151 terms by enparrott 

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I: Seizure

...

Definition of Seizure

• Use of Physical Force to Restrain Movement
OR
• Submission to Assertion of Authority (creates a positive policy issue encouraging submission to police)

How much suspicion is needed to stop an individual?

• To Stop ("Seize") an Individual
o Reasonable Suspicion
o Based on Objective Facts
o That Suspect Involved in Criminal Activity

Time Lag Problem

• Time Lag Problem - time between when the police show up to a scene to the time they complete seizure.
- • Classic pattern: Suspect Discard Evidence After Assertion of Authority But Before Submission
- • Moment of Submission = Moment of the Seizure
- - o Law Enforcement Wins (Fortuitously) playing off the stupidity of criminals.
- - o No Difference in Law Enforcement Conduct that explains this result. We want police to act in a good normal way. A rule the other direction would punish the police for the refusal of a suspect to submit. Don't want to punish for a policeman doing the right thing.

Scenarios showcasing the problems with the question of How much force constitutes "physical force?"

o Shot Fired?
- • Warning Shot in Air Accidentally Hits Suspect in Leg?
- - • Authority shown, no submission so no satisfaction of the second prompt. But there was physical force and movement was restrained, so first prompt should be satisfied. (will have to evaluate the signifcance or (requirement?) of officer intention later in the slide show, if not, ask. (from what it appears, use the intent to make arguments for both sides))
- • Warning Shot in Air?
- - • Not much of a difference because the officer intention in both cases are the same....physical force TO restrain movement. Not completely settled, but a good argument.
- • "Hey, you!"
- - • no physical force and no showing of an authority or submission.
- - • What If Suspect Immediately Stops?
- - - o Still not, because there has to be a showing of authority, not just submission.
- • Police Pull Up to Curb
- - • Timid Citizen Immediately Raises Arms
- - - o Definitely a submission, but the question is whether there was a show of authority...fact specific.

General Rule for when a seizure occurs (3 things)

• Seizure Occurs If Reasonable Person Does Not Feel Free to
- • Terminate the Encounter
- • Leave
- • Decline the Request
- • ......because of the two previous prompts (authority/submission or force)
• Objective Test
- • Reasonable Person Standard
- • No Attention to Particular Characteristics (not race or gender, specific community experience, education level)
• Detail
- • Seizure Occurs If LE Retains ID or Ticket (a reasonable person may not feel free to leave, even if it is not an explicit assertion of authority - Make arguments either way)

Isolated Random Stop

• Not Allowed
- • No Suspicion (don't want to allow an exploitation of discretion)
- • Law Enforcement's Interest Minimal
- • Pros and cons, but cons outweigh
- - o American liberty
- - o Wasted man hours
- - o U.S. in general, is a safe place.
• But
- • Roadblock Possibly Allowed
- - o Irony
- • Swallow the Camel, Strain at the Gnat
- - o Must Be an Explanation
• Real Reason?

Roadblocks

• Permitted if:
- • Specific, Primary Purpose
- • Related to Use of Roadway
- - o Sobriety Checkpoints = Roadway Safety
- - o Registration Checkpoint = Motor Vehicle Laws
- - o Investigatory Checkpoint for Specific Accident
- - - • Illinois v. Lidster = fatal hit-and-run
- - - • Example of allowed specific purpose
• Also Permitted If:
- • Imminent, Terrorist Attack
- • Fleeing, Dangerous Criminal
- • i.e. Exigent Circumstances (Balancing Test)
• But
- • Not Permitted If
- - o Primary Purpose Comprises General Crime Control
- • Why?
- - o Fear that special exception will swallow general rule that seizure requires individualized suspicion
- - o Police could throw up roadblocks for any criminal wrongdoing.
• Critique
- • Whren v. United States
- - o Subjective intent of law enforcement does not invalidate an otherwise justifiable stop
- - o What if law enforcement sets up a sobriety checkpoint as pretext for general crime control? (pretext problem)
- - - • pretext = proffered reason
- - - - • as opposed to the true reason
- - - - • Can shield other things such as religious, race and sexual intent
• Also Permissible
- • Permissible Suspicionless Seizures
- - o International Border
- - o Security Checks (Airport, Courthouse)
- - o = Special Needs
• Relevance of Effectiveness
- • Effectiveness?
- - o Evidence of Governmental Interest
- But
- - o Not Dispositive

What constitutes reasonable suspicion?

• More Than Mere Hunch (no matter how good the officer is at looking at people's tells)
• More Than Permissible Protests or Permissible Attempts to Disengage (This is a constitutional right)
- • Would be able to stop people every time.
• More Than Refusal to Provide Identification (Absent Other Circumstances)

Problem with Identification statutes

• Why a Problem?
- • Bootstrap Less Than Reasonable Suspicion Into Grounds for Stop or Arrest
- • Danger = Unconstrained Discretion
- • Tension
- - o Investigative Stop (next topic)
- - - • Allows questioning, but no obligation to answer
- - - • Refusal to answer allowed, no basis for arrest
- - - • Identification laws mandate an answer
• ID Laws Permissible
- • Limit
- - o Arrest allowed only if request for identification reasonably related to circumstances that justified the stop

II: Terry Stop & Suspicion

...

Terry Stop (Definition of a "stop" and the level of suspicion needed

o Stop =
- • Detain Briefly for Questioning or Investigation (not arrest) must have both parts (detain and Q or I)
- - • "May I ask you a few questions" isn't enough.
- - • Additional facts (gun drawn) tip the scales (make arguments)
o Level of Suspicion needed
- • Reasonable Suspicion that Suspect Involved in Criminal Activity

Terry Frisk (Definition of a "frisk" and the level of suspicion needed

- Terry Frisk (different analysis than a Terry stop). However, this constitutes a detainment. So Frisk are always stops, but not vice versa. So do Terry Stop analysis first.
- o Frisk =
- - • Limited, Protective Search of Outer Clothing
- - • Pat Down
- o Suspicion needed
- - • Reasonable Suspicion that Suspect
- - • Armed
- - • and Dangerous

Frisk Issues: "Use it or lose it"

o "Use It or Loose It"
- • Immediate/Prompt Search Allowed [backs up the officer's assertion that the suspect is armed and dangerous]
- - • If Requisite Suspicion
- • Logic
- - • Frisk to Dispel / Confirm Fear for Safety
- • If Officer Chooses Not to Frisk Right Away. . .
- - • Implication of Non-Dangerousness?
- - • Come backs
- - - o Something that was said during an interview led me to believe he was armed and dangerous.

More than a Frisk?

- More Than a Frisk (in different cases, the extent of a frisk will vary (not too dramatically), but it will be evaluated with reasonably) - officers are going to argue for the presence of these if they do more than a pat down.
- o Permissibility of More Invasive /Intrusive Search
- - • Dangerousness of Pat Down / Frisk
- - • Limited Nature of Additional Intrusion
- - • Conduct of Suspect

Standards for Suspicion

o Suspicion Based on
- • Objective, Specific, Articulable Facts
- - • Not Inchoate Suspicion or Hunch
- - • And Reasonable Inferences Based on Law Enforcement Experience
- • When
- - • Before the Law Enforcement Conduct
- - • No After-the-Fact Rationalization
- • Evaluated from Point-of-View of Officer in the Field
o It is allowed that "Hearsay" can be relied on.
- • Information Not Personally Observed
- - • Witnesses
- - • Fellow Officers, Dispatcher, Etc.
- - • Informant / Anonymous Tips
• Allowed

Bad Neighborhood's affect on suspicion

o Suspect Present in High-Crime Area
- • Insufficient
- - • as Sole Factor
- • But
- - • A Permissible Consideration

Flight's affect on suspicion

o Suspect Flight from Law Enforcement
- • Suggestive of Wrongdoing
- • Sufficient for Reasonable Suspicion
- - • Unprovoked, Headlong (running) Flight
- - • from Law Enforcement
- - • Coupled w/ Other Factors Sufficient

Anonymous/Informant Tips

o Standard
- • Indicia of Reliability (a repeated informant or respected community member, or even someone who gives their name helps that state, anonymous hurts)
- - • details to establish knowledge or credibility
- • Corroboration of Details by Law Enforcement
- - • prediction crucial?
o Magnitude of the Crime/Danger Affects Analysis
o What is the Concern?
- • Potential for Harassment

Pretext

o Meaning
- • Pretext = the Proffered Reason (not using a turn signal, speeding)
o Subjective Intent of LE Not Relevant (Whren case)
- • Even If LE Acts in Bad Faith
o So Long as Objective Facts, Known to Officer, Support Detention/Search

Concerns for standards of suspicion

o Reasonable Suspicion Standard
o And Limits on Pretext Claims
o Give License to Action Based on
- • Race
- • Other Improper Considerations
- • Impermissible Profiling

Scope of Terry Frisk and corresponding suspicion that is required - vehicles

- Law Enforcement May Search Those Areas in the Passenger Compartment of Vehicle Where a Suspect Might Have a Weapon.
- Reasonable Suspicion that Suspect Dangerous and could gain immediate control of weapon
- lots of notes on these in the class notes

Terry Frisk: expansion of the search

o 1.) If Officer Feels NO object or object NOT reasonably a weapon, THEN search is over.
o 2.) If Officer reasonably suspects object is a weapon, THEN officer may expand the search.
o 3.) If Officer feel object with immediately apparent incriminating character, THEN officer may expand the search (Probable Cause Standard)
- Lot of notes on this

More expansion on the Terry Frisk

o Immediately Apparently Incriminating by Sight, Feel, Smell.
• (My Notes)The drug dog is not committing a terry frisk b/c they are not physically touching anyone or entering the car, etc. It is not detaining you and therefore only smelling/observing like a officer would on the street.

Terry Stop - Length of detention

o Permissible Length of Terry (or citation) stop?
• investigative detention for Reasonable Time
o Court endorses reasonably brief detention even if shorter detention possible
• Ex: Caballes case
• In Caballes case, there was no intrusion b/c it was in plain smell and the dog was just an extension of the officer's ability and further they don't have to explain themselves for bringing the dog and did not need any cause. The dog did not stop you, touch you, or prolong the detention. If the dog did prolong the detention b/c officer had a hunch? Officer would talk for a little while and get the registration and waste some time in order to wait for the dog. If the officer knows he can take three minutes and this one takes ten minutes, is this unconstitutional? No b/c all the court says is that an officer needs to have a reasonable length and there are no specific time constraints on how long you can frisk a person, stop a person for speeding, etc. just was it reasonable.

III: Arrest

...

Arrest (definition and the level of suspicion required)

o Arrest=Significant Deprivation of Liberty
- • In custody (another word for arrest)
- • vs. stop
o Suspicion Required=Probable Cause
- • Facts and Circumstances, along with reasonable inferences, sufficient for reasonable officer to believe that crime committed and suspect committed it.

De Facto Arrest

o How do we know whether an arrest has occurred? Vs. mere Stop?
o Formal: "You are under arrest"
o Informal: De Facto Arrest
- • Factors:
- - • Location
- - • Movement of Suspect
- - • Intrusiveness/Force of Restraint
- - • Duration
- - - - o Ex: Dunaway was under arrest b/c they did not allow him to leave and moved him around, etc.

Detention during warrant execution

o Detention During Execution of Premises Search Warrant Allowed

* Rationales provided in class notes

Arrest - Rule (specify after comprehension!)

o If Law Enforcement Has PC to Arrest
- • and Reasonably Believe They Have Found Suspect, They Can Arrest
- • Good Faith Belief That Arrestee Is the Suspect
o Reasonable Mistake Regarding Identity
- • Does Not Render Arrest Unconstitutional
o Not expecting a super long analysis of this on the exam, just simply apply the rule.

Arrest Notes: Subsequent Factual Developments after PC to arrest

• Subsequent Factual Developments Do Not Render Arrest Unconstitutional (Later developments do not change the constitutionality of our arrest...what matters is the probable cause at the moment of the arrest)

Bad Faith

o Bad Faith
• PC to Arrest
• But Officer Does Not Believe PC Present (example is that the officer's intuition says the person didn't do it).
• Arrests Anyhow
• Objective vs. Subjective Belief About PC
• Split
• Whren gives us an answer on this, the court would probably say that objective probable cause would say it is okay. Some lower federal courts say to the contrary. No clear position or case on this by the USSC. Good exam question, because of the split. Attractive, because it causes to cover stuff on previous slide.

Arrest: Later Invalidated Law

o Arrest Based on Currently-Valid Law, Later Invalidated
• Valid Arrest (does not invalidate the arrest, similar to subsequent facts coming up).
o Rationale: Law Enforcement Obligated to Enforce Laws Until Declared Unconstitutional
• Only exception: Unless Grossly / Flagrantly Unconstitutional to a Reasonably Prudent Person (you would have to have a law that said it was illegal to be a muslim to get anywhere close to this...law that makes abortion illegal may not even get you to this point. Has to be one that everyone 100% knows that it is unconstitutional).
o Otherwise a Dilemma
• Dereliction of Duty vs. Liability for False Arrest

Necessity of Arrest Warrant?

- Necessity of Arrest Warrant? (Not likely to be tested, don't write about it, this is just to fill in the gaps....if this was tested, the question would have to involve detention...usually doesn't happen. The exam questions usually focus on arrest).
o Three Options
• Arrest With a Warrant
• Allows Arrest and Prolonged Detention
• Arrest With PC and Without a Warrant
• Allows Brief Detention
o Followed by Release Based on Law Enforcement or Prosecutorial Discretion
• (not always prosecuted, because PC is not always indicative to beyond a reasonable doubt, the prosecutor may not think he can win, or it is a waste of resources)
• Allows Prolonged Detention Only If
o Followed by Prompt Judicial Determination of PC
o Length of Permissible Brief Detention
• 48 Hours Presumptively Valid

Warrantless Arrest in Home (Payton v. New York)

o Entry Into Home for Arrest Without Warrant Presumptively Unreasonable
o Arrest Warrant Implies Authority to Enter Suspect's Dwelling
o But
- • Knocking & Waiting Without Warrant
- • Police get around this by tactics such as a phone call promising a fake radio prize (police waiting outside the house in an unmarked vehicle).
- • At this point/stage, it is rare for police trickery to invalidate an arrest....will get murkier later.

Arrest: Exigent Circumstances

o Exigent Circumstances Overcome Presumption Against Entry Without Warrant
- • Burden on Government (preponderance of the evidence)
- • Factors (what should we look at)
- - • Gravity of Underlying Offense (jaywalking vs. terrorism) (misdemeanor vs. felony (not cut and dry between the two though, good place to start).
- - • Hot Pursuit (helps the exigent circumstances argument (time sensitive)(if cold, why didn't you get a warrant)).
- - • Threat to Public Safety / Dangerousness (helps the exigent circumstances argument)
- - - o Threat to the suspect's health (community welfare(?) argument, will get to this doctrine later).
- - - • Investigation - Preservation / Destruction of Evidence (most common/ real-world response)
- - - • List is not exhaustive, these are just the most common. Obviously try to make arguments for every one you can.

Arrest: Knock and Announce

o Knock and Announce (Welsh v. Wisconsin - issue here is the preservation factor from the previous slide)
- • vs. Forced Entry
- • Required - Even If Warrant
o Exceptions
- • Case-by-Case, Flexible, Reasonableness (If there are exigent circumstances that give an officer to execute a search warrant, most likely this exception will be satisfied....most likely, not always)
o Standard (courts have attempted to create a standard)
- • Reasonable Suspicion That Knocking and Announcing Would Be
- - • Dangerous - Threat of Violence
- - • Futile
- - - o ??? (Hall can't understand why)(example - building is empty....which is weird, because why wouldn't you knock and announce even if you think it is empty.)(however, futility is a recognized example given by courts)
- - • Inhibit Effective Investigation
o Preservation / Destruction of Evidence

IV: Search Warrants

...

Search Warrants (General and Procedures for obtaining a warrant) - Not Tested!

- General (Most of this stuff won't be on the exam (don't waste time on this stuff unless noted)....will be noted when something will be on there.
o Procedures for Obtaining a Warrant
• Neutral and Detached Magistrate (judicial branch, not executive)
• Oath or Affirmation (creates an internal review - on the record)
• Probable Cause
• Crime Committed and Evidence At Premises / On Person

Particularity of Search Warrants

o Particularity (what does it need to include) Can be tested!!!!
• Search
• Seizure
• Description (of both above) Sufficient to Reasonably Allow Identification of Premises / Person / Things
• Rigorous Regarding Premises (you should know the address. You can also drive by the house...it doesn't move)
o Except for Good Faith Mistakes (wrong apartment number)
o Errors that Nevertheless Produce No Ambiguity? (wrong number, but there is a marker at the front of the building that has the resident's name and the warrant said the person's name that was marked) (has to be reasonable and logical though - Prof. Case example)
o Less Rigor Regarding Things
• Except for Stolen Property (ones that would need specific and accurate identification, an individual's computer...these exception does not apply to a search of people suspected in a burglary ring (who knows what all they have stolen?))

Execution of Search Warrants (and Groh case)

- Execution
o Time
o Inventory
o Receipt
o Return

- Groh case - didn't fill out the correct box on the warrant form
o Forms are easy, so if a warrant form is filled out incorrectly, the defense wins.

Search of Persons in Premises

- Search of Persons in Premises (Ybarra case (people not named in the warrant) - what could have changed the situation - people huddle around, people attempt to bolt ...i.e. something the police see when they enter a premises that they could not have included in the warrant. Something that gives an officer reasonable suspicion. Key thought for the exam, make a reasonable suspicion argument for the officer (allows the officer to do a terry stop). You can continue this line of thinking - thinking that the people were armed and dangerous? Another one is people reaching into their pockets or trench coats in the middle of July (gives the officer a claim of armed and dangerous)
o Yes
• If Named in Warrant
• Sometimes Warrant Names:
o "All Persons in Premises" (not a bar, but a specific house, car, or a place like a known crack house)
o No
• Warrant Does Not Generally Allow Search of Persons Not Named (name them if you want to search them)
• Factors That Might Alter Analysis
• Inference / Evidence of Involvement in Crime
• Public vs. Private Location
• See bold analysis of Ybarra case above.

Anticipatory Warrants (nothing to test here)

o Permissible (If and win)
• Affidavit Contains a Triggering Condition
• Not Necessarily Provided to Suspect in Warrant

Tip/Informant as Basis

o Tip / Informant as Basis
- • PC Requires Facts/Circumstances
- - • Allowing Inferences
- - • For Search & Arrest
- • Not Assertions or Belief
- • Particular Problem
- - • Confidential or Anonymous Informant / Tips Generally
- • Aguilar-Spinelli
- - • Two-Pronged Test for PC Sufficiency of Tip
- - • Difficult Test for Law Enforcement
- - • Still Used by Some States
- - • Replaced by Gates in Federal System
- - - o If FBI or DEA, use Gates. Instructions may say which one to use. You might have to use both. (if nothing is specified). A-S can take a long time, so don't unless you are sure you have to.
- - • Aguilar case:
- - - o Even from a credible source, nothing specific or articulatible facts. Can't present that in court. Weak on both prongs to come...make arguments though.

Aguilar-Spinelli Test

o Aguilar-Spinelli Test (Two prongs, have to have both)
• (1) Basis of Knowledge
• First-Hand vs. Second-Hand Info (see vs. heard, logical thought is detail correlates with strength, however there may be malicious intent behind tip)
• and
• (2) Veracity (truthfulness or trustworthiness)
• Credibility
o Identity of Informant (In person is better...the more sure we are of the identity, the better)
• Reliability
o Track Record
• Sometimes:
o Admission of Involvement / Statement Against Interest (why would they expose themselves to prosecution?)
• Corroboration
• Verification May Elevate Insufficient Tip

Tip - Gates

• Totality of Circumstances
• Veracity, Reliability, and Basis of Knowledge
• Deficiency in One
o Possibly Compensated for by Strong Showing on Another
• Or Other Indicia of Reliability
• Keys
• Corroboration
• Predictive Nature

Challening warrant (including a sub-facial challenge)

• Facial Challenge
• Invalid Warrant
o e.g., Lack of Particularity in Location, Search, Seizure
• PC Not Present in Affidavit
• "Sub-Facial" Challenge (Franks)
• Deeper Probing
• Standard to Obtain a hearing
o Franks hearing
o Preliminary Proffer of
• Material and Deliberate Falsity (Two things)
• Deliberate =
o Knowingly or Recklessly False Statements in Affidavit
• Material =
o Necessary for Finding of PC
• At hearing B/P on Suspect/Defendant

V: Bodily intrusion and Electronic Surveillance

...

Bodily Intrusion & Electronic Surveillance: Shocks the conscience

• Independent of 4th Amendment Claim
• An Implied Fundamental Rights Claim
- • Substantive Due Process (Hall hates this phrase)
- - o Rochin v. California (KNOW THIS CASE BY NAME)
- - o Exigency is an exception to the warrant clause, not exception for probable cause
- - o If the brothers and sisters let officers in the house, then they do not need probable cause
• Law Enforcement Conduct that Shocks the Conscience Is Unconstitutional
- • For Example: Torture

Bodily Intrusion

o Bodily Intrusion (ON EXAM DO FOURTH AMENDMENT AND SHOCKS THE CONSCIENCE)
- • 1) Warrant
- - • Required
- - - o Unless: Warrant Exception
- - - - • e.g., Exigent Circumstances
- • 2) Reasonableness
- - • Probable Cause for Search
- - - o Sufficient to Justify Intrusion (almost something more than probable cause)
- - • Reasonableness of Intrusion
- - - o Procedure Itself
- - - - • Intrusiveness (Pain/Trauma/Risk) & Effectiveness
- - - o Method of Performing Procedure
• Medical Practices & Risk

Bodily Intrusion & Electronic Surveillance: Bloodtesting & Breathalyzer for DUI

• Generally Allowed

Bodily Intrusion & Electronic Surveillance: General Search Analysis

• 4th Amendment Protects Persons Not Places
- • "Search" Occurs Only If Law Enforcement Examines a Place/Thing in Which a Person Possesses a Reasonable Expectation of Privacy (100% deaf person outside the phone booth you do not have subjective, you do have objective) (Not forever rule, just current)
- - o Subjective / Actual Expectation of Privacy
- - - • Problem?
- - o Objectively Reasonable
- - - • Openness / Exposure to Public
- - - - • Sharing w/ Public or 3d Party = Assumption of Risk Ask Kimberly
- - - - • Phone bill including numbers, not private
- - - - • Bank accounts, not private
- - - • Intrusiveness
- - - - • Did law enforcement place itself in position of public?

Electronic Surveillance Issues

• Statutorily Controlled
- • Providing Greater Protection Than Required by 4th Amendment
• Electronic Surveillance (Not on Final)
- • Particularity (particular communications you expect to hear)
- • On-Going (need evidence of how long the period is when you expect to listen to communications)
- • Minimization (cannot listen to phone calls that do not pertain to the particularity and you cannot keep the recordings, unless it is like a terrorist attack)
- • Notice (delayed notice, 18 months after end of investigation you must provide notice to the target, not if you would kill the informant or other exigent circumstances)
• Covert Entry (to install bug)

Bodily Intrusion & Electronic Surveillance: Pen Register

• Pen Register (automatic phone dialer)
• Allowed - No 4th Amendment Concern
• Dialed Telephone Numbers
• Logic: Shared Information

Electronic Tracking Device

• Generally Allowed - No 4th Amendment Concern
o Publicly-Observable Information (driving down a public road - no privacy expectation) Even if it is an abandoned road, although this conflicts with some of the black letter law. If this is on an exam, don't be fooled. No privacy on the road. Doesn't matter if it is private or public, just that it is observABLE.
• This also allows tracking device on vehicles that drive in public (even if they end up using unreasonable means) Knotts and Karo. As opposed to secret tunnels - that would fall under unobservable information.
o Thought behind the court's decision is that there aren't enough officers to be able to observe everyone. Current Jones case presents new issues with GPS (is everyone monitored?)...we will see.
• Not Allowed
o Unobservable Information
• Note
o Analyze Installation of Device
• In Karo and Knotts, private parites consented to the installation.
• If on the exam, FBI goes into someone's garage, the data received may not present a violation, but the intrustion will. Don't overlook that (Warrant?)

Surveillance of Home

o Surveillance of Home
- • exterior surveillance permitted
- - o surveillance of interior
- • not permitted
- - • unless accomplished by device in general public use (therma sensor did not satisfy this test in Kyllo)
- - • Hall's not comfortable with this...changes in technology....what does access mean? Hall also doesn't think the point of Kyllo was this.
- • equivalent of an intrusion
o little need to analyze subjective prong of reasonable expectation of privacy with regard to home (hall admittedly doesn't know if this is an actual rule, but he uses it as one).

Electronic Surveillance, more shocks the conscience

More Shocks the Conscience (usually allowed, no more than 2 or 3 sentences on the exam...but it must scream outrageous operations)
- o Undercover Sting Operations
- - • and Entrapment (will get deeper into in Crim. Pro II)
- - • Outrageous Government ConductAll Potentially Invalid If the Government's Conduct Shocks the Conscience

Electronic Surveillance: Interests affecting search analysis

o Third Party Search (Stanford daily was a non suspect who had evidence - should have been able to get search warrant (different from an arrest warrant, because you don't need cause (what kind) for a specific indvidual under a search warrant)
• PC that evidence of crime at location but no PC that owner implicated in crime
• not an issue
o First Amendment
• not a special limit
• perhaps: heightened particularity req't
• Not complicated, may show up on exam, maybe switch with church for new hypo...doesn't shift analysis though. Try to keep to one sentence for each of these thoughts.

Administrative Search

- Administrative Search (we are not as worried about Admin searches, like law enforcement searches - because we assent to these for the bettering of society. Not very testable, it's confusing, so he isn't giving concrete enough stuff to test)
o Search for Governmental or Regulatory Purposes
• Not Directly Related to Criminal Law Enforcement / Investigation
• Special Needs (courts will sometimes group it under this category, because it doesn't match the typical fourth amendment doctrine (we have touched on this before (roadblock section)).

Standard for Administrative Search: Administrative Warrant & Probable Cause

o Administrative Warrant
• norm w/ exceptions (Exceptions swallow the norm, most happen when there has already been a general finding (i.e. regulated businesses (building inspectors), restaurant inspections).
• general exception for regulated businesses
o PC
• Based on Reasonable Legislative or Administrative Standards for Inspection
• No Need for Individualized Suspicion of Crime

Special Needs Search (Don't have to write down)

- Special Needs Search (Don't have to write down)
o Does Not Apply If Immediate Objective Is Crime Control (same as road blocks - can't do it for general crime prevention).

4th Amendment Balancing

- 4th Amendment Balancing
o No Bright Line Rule
o State Interest vs. Private Interest

School Searches

- School Searches
o No Warrant, Just Reasonableness
• At Inception
• Scope Reasonably Related to Initial Justification
• School's job is education, not police enforcement, don't want them to jump through unnecessary hoops. We end up with a Cost-benefit analysis. Leans toward the school here.
o Others
• Public Employees, Probationers

VI: SITA

...

Search Incident to Arrest: General

o Law Enforcement May Conduct a Search at the Time of an Arrest
- • Formal Arrest (have to have probable cause to arrest - which the easiest way to prove probable cause is to get a search warrant)
- - • If you say "You're under arrest," then it is probably the best way to show that it was a SITA.
- - - o The statement doesn't always happen first (Hall's terrorist example)
o Contemporaneous
- • Wiggle Room

SITA: Scope

o Scope (police don't have to prove why or liklihood of events that justify the underlying reasoning why we have these rules)
- • Person
- • Area w/in Immediate Control
- • Containers (Robinson case)
- • Immediately Adjoining Area
- • Limited to Places Where Suspect Could Hide Weapons or Hide/Destroy Evidence (perhaps the best doctrine or test)
• Review case doctrine on these

SITA: Logic

o Logic
• Safety
• Evidence
• But
• No Need for Particularized Showing
• Per Se / Bright Line Rule (Promotes officers to get an official warrant...following those rules enable them to do a search, because you don't have to prove elements of logic or fears).

Arrest Entitles Law Enforcement to a Search
of Person and Area: Vehicle Issues

o Citation Stop
- • Law Enforcement May Order
- • Driver
- • And
- • Passengers
- • To Exit Vehicle

Arrest Entitles Law Enforcement to a Search
of Person and Area: More Vehicle Issues

o Search Incident to Arrest Scope With Regard to Vehicle
- • Includes Passenger Compartment
- • And
- • Containers
o Contemporaneous
- • As Long as Arrest Occurs Contemporaneously With Presence in Vehicle

- Standard of Suspicion for Vehicle Search Incident to Arrest

(gant case..I need to lookup and contrast Thorton and Gant (two different rules?)
o No Per Se Search of Vehicle
- • Contrast w/ Per Se Search of Arrestee/Area
o Standards
- • Only If Reasonable Belief That
- • Suspect(s) in Close Proximity to Vehicle
- - o Access / Reaching Distance
- • OR
- • Evidence of Offense in Vehicle

Does It (all the vehicle stuff?) Matter?

o Inventory Search Is Constitutional
• Of Person
• Booking Search
• Of Vehicle
• Of Containers In Vehicle
o If Routine Procedure for the Law Enforcement Agency

VII: Plain View

...

Plain view: generally

o No Reasonable Expectation of Privacy With Regard to Activity/Things in Plain View (Arizona v. Hicks - no expected privacy for stereo system, however, there is an expectation of privacy for serial numbers hidden under the stereo)
- • Lawful Vantage Point
- • No Additional Intrusion
- • Mere Physical Inspection = Additional Intrusion (serial numbers)

The plain view doctrine

o Seizure of Object w/out Warrant
• Observed from Lawful Vantage Point
• Right of Physical Access
• Nature as an Object Subject to Seizure Immediately Apparent
• Contraband, Fruit or Instrumentality of Crime, or Evidence
• Probable Cause
o Washington v. Chrisman - Defense attorney will argue that officer didn't have to do hwhat he did. Officer will claim exigent circumstances.
• Officer could have entered to arrest them and then do the SITA (because the search is free in that case) (there would be nothing to dispute)
• Officer could have just secured the scene and call other officers nad get a warrant.

Plain view doctrine: expansion

o Plain _____
• View
• Hearing
• Smell
• Touch

Plain view doctrine: U.S. v. Jacobsen

o Where in the plain view doctrine?
• Lawful vantage point
• Third party
• Right of Access
• Reasonableness
• Immediately Apparent as Contraband
• Testing allowed
o Allowed
• Trace seizure for reliable field testing (can't find anything else, unlike the stereo, where you can find something else....testing says whether a person is criminal or not (definite results))

Plain view doctrine: open fields

o Open Field = No Reasonable Expectation of Privacy
• "Open Field" Pure Term of Art (doesn't have to be open or a field)
• Putting up "No Trespassing" signs or fences do not affect the analysis. Woods is still woods (anyone can be watching)
• Open Field = Area Not Within Curtilage
o Curtilage
• Area Near House/Building in Which Expectation of Privacy Exists
• The USSC separates everything into your curtilage or open field.
• No Trespassing Signs
o No Effect on Analysis
o Possible Trespass by Law Enforcement Not Relevant for 4th Amendment Analysis of This Issue

Plain view doctrine: Curtilage

o Curtilage
• Area Immediately Surrounding Home and Associated With the Home
• Area of Intimate Activity Associate With the Home
• i.e. poolhouse, brick courtyard with 8 foot high walls - you have to claim that it is the equivalent of an indoor room
• area in which reasonable expectation of privacy exists

Plain view doctrine: Dunn Factors

- Dunn Factors (some agents went to ranch in texas, half a mile from the road (200 acres)....gone over three fences. They get to the locked barn, a peer through. Barns are 150 ft from the home. The Courts say that that the barn was not part of the Curtilage, so the 4th amendment wasn't violated).
o Curtilage (one factor might cut so decisively that it wins it for one side by itself)
• Proximity to House
• Within an Enclosure Surrounding the House (looking for something that defines the family or living space, not necessarily something that surrounds the entire property)
• Nature of Use of the Area (use for the typical activities that might go in a house)
• Steps Taken to Protect the Area From Observation

Plain View Doctrine: Aerial Surviellance

- Aerial Surveillance (probably will have to analyze along with the "technology not available to the ordinary public" analysis - look back in notes and make sure you have something about this.
o Aerial Surveillance Does Not Abridge Reasonable Expectation of Privacy If...(even if it is curtilige...this can also apply to areas within curtiledge that could not be invaded from the ground....)
• Undertaken From Navigable Airspace (1,000 ft (legal minimum) away is not intrusive)
• Conducted in Physically Non-Intrusive Manner
• Even If Observation of Activity w/in the Curtilage!!!

Plain view doctrine: Abandoned Property

- Abandoned Property
o No Reasonable Expectation of Privacy in Garbage / Abandoned Property

VII: Consent

...

Consent

o Consent
- • No Warrant Necessary
- • No Particular Level of Suspicion Needed (this is why this is the best strategy for law enforcement agents, you don't even need reasonable suspicion.

Consent Burden of Proof

o B/P on Law Enforcement (should be obvious, it is always on the moving party, so it is a duh moment, but he wanted to put it on the slide)
- • Freely and Voluntarily Given
- • Not Mere Acquiescence to Authority
- • Initial Claim of Warrant by Law Enforcement
o Generally Vitiates Any "Consent"
- • No Duress or Coercion (in the civil rights cases it was race)

Voluntariness of consent

o Totality of Circumstances
- • Requirement of Knowledge of Option
- - • Federal
- - - o There is No Requirement that Suspect Knows
- - - - • Free to Leave
- - - - • Free to Refuse
- - • State
- - - o Some States Impose Requirement

Consent: Undermining Voluntariness

o Factors
- • Show of Force
- • Number of Officers (the more officers, the suspect could argue that he felt force)
- • Repetitive Requests
- • Overbearing / Intimidation
- • Remember: Totality of Circumstances (none are dispositive)
- Expansiveness of Consent Search

Expansiveness of Consent Search

o Scope, Time, Intrusiveness
• As Reasonable
• Measured Based Upon Consent Given

Third Party Consent

o Consent by Non-Suspect
• Person Having Common Authority (A parent of a household...parent may not work if it was a one-room apt. and the officers knew the suspect lived by himself...officers would argue tat since the parent has consent to be there, then they can give consent for officers to search. Really depends on what the police know...they will make arguments) (roommates - definitely common areas, maybe if one roommate is the person with the name on the lease, if the doors aren't looked and are open, then maybe they can allow it, but the reasonableness of the search of the additional bedrooms must be limited in scope (to what the roommate is usually allowed (or is given consent) to access - dresser top, closet, maybe drawers)).
• B/P on Law Enforcement
• Consenting Person Must Have Authority
• OR Law Enforcement Must Reasonably Believe Consenting Person Has Authority
• Apparent Authority

Issues of Third Party Consent (2)

o Scope of Authority
• Spouses vs. House-Mates
o Two People Present
• One Consents, One Refuses
• Refusal Wins
• Gives officers the desire to sequence the investigation to give them the response the wants (stop when they get a consent, or isolating the two residents to get consent from just one)
• Problems
• Isolation/Movement of Prospective Refuser
o To Prevent Refusal
o Invalidates Consent
• Sequence of Investigation
o They are allowed to do this
o These two problems seem a little out of whack...it was dicta. Slightly leaves room for officers to manipulate the system.
- Vehicles

Vehicles & Container Doctrine

...

Vehicles

o Warrantless Search With Probable Cause
- • You also get to arrest because, if you have probable cause to pull over the car, you have PC to arrest the suspects
- • Has to be at the same time (contemporaneous with the arrest)
- • Permitted
- • Initial Rationale (not on exam - rationale)
o Mobility
- • Modern Rationale
o Less Expectation of Privacy
- • Applies Even to RV
- • Not if it is up on blocks, then it gets a house analysis. No matter what it is, both sides will make arguments if close.

Container Doctrine

o Search of Vehicle w/ Probable Cuase
- • Allows Search of All Containers
- • Scope
- - • With Same Level of Particularity as Warrant Would Allow (where they get to search depends on what they are looking for - rocket launcher gives no reason to search inside small areas)
- - • For those things constituting evidence of the underlying crime
- - • Includes locked compartments and locked containers
- • Contrast
- - • Search Incident to arrest allows less invasive search (passenger compartment)
- - • Inventory search allows probing search of containers

Scope of container search

don't have anything

Problem with vehicle/container doctrine

o Common concern
o The best moment for an officer to make an arrest is when the suspect is the in the car, the doctrines give the officer the best bang for their buck in that case.
• Possible manipulation

More Vehicles

o Warrantless Search of Vehicle Without Probable Cause?
o Yes, if inventory search (yes, if consent as well, but not Hall's point here)
o Inventory Search Allowed
• Inventory Search Permissible If
• Standard/Routine Procedure for That Law Enforcement Agency

Exigent Circumstances

...

Exigent Circumstances: Generally

o Generally
- • A Warrant Exception (still need probable cause, just because they get into a place because of this, doesn't mean they can do everything they want)

Exigent Circumstances: B/P and Factors

o b/p on Law Enforcement (law enforcement must prove it up)
- o Factors (totality of circumsntaces)
- - • Gravity of Underlying Offense
- - • Hot Pursuit
- - • Public Safety
- - • Preservation of Evidence

Exigent Circumstances: Scope and Duration

o Scope
- • Search to Find Suspect
- • and/or Evidence (if the exigency has to do with the evidence)
- • The exigency will determine the scope - a hot pursuit exigency will not allow officers to search drawer by drawer.
o Duration
- • Until Suspect and/or Evidence Located
- • Until Exigency Ended (the trail has gone cold (two hours in a small house) or something like they heard other officers caught the suspect)

More Exigent Doctrine

o Exigent Circumstances
- • Ad Hoc Reasonableness (totality and circumstances)

Exigent Circumstances: Public Safety

o Public Safety
- • Including Reasonable Basis for Believing Occupant Seriously Injured or Imminently Threatened With Such Injury
• Brigham City, Utah v. Stuart (2006) (page 331, note 1)

Exigen Circumstances: Community Caretaking Function

o Community Caretaking Function (Some (6th circuit in the case we read) courts recognize that law enforcement officers have another function of general community helpers (turning down the stereo after many complaints when person doesn't open the door, search for an alzheimer's patient, lost child - - we may get a USSC case on this in a few years, but maybe not)
• Divorced from Investigation of Crime
• Exception to
• Warrant Requirement
• Probable Cause Requirement (along with consent, is another exception to probable cause).
• However, doesn't prove crime
• Plain View Applies
• If there are facts suggesting that officers have another route to pursue their goal, make arguments.

Transition in the course

o Early Stages of Investigation
• Find a Suspect
• Find Evidence
o Later Stages of Investigation
• Continue Investigation
• Questioning
• Identification of Suspect by Witnesses
• Suspect Charged

6th Amendment Right to Counsel

o Mainly a Trial Right
• No Interrogation of Accused Regarding Charged Offenses Without Counsel Present or Without Permission
o Issues
• When Does 6th Am RTC Attach?
• What Law Enforcement Conduct Does It Prevent?

When does 6a RTC attach?

o Commencement of Prosecution (When investigation ends and prosecution begins)
• Beginning of Adversarial Judicial Proceeding (been in court)
• Or the moment the Suspect Becomes "the Accused"
o Line Up or Show Up Without Counsel Before Proceedings Commence?
• No 6th Am RTC Violation
• (police can manipulate this by requesting a line up before adversarial judicial proceedings commence....therefore they do not have to notify the suspect's counsel)
o When Does 6th Amendment Right to Counsel Attach?
• Commencement of Prosecution
• Proceeding Before a Judge
o Even If Preliminary
• Not Grand Jury Proceeding
• Irony?
• For many clients, the grand jury is more important than the trial (avoids indictment if wins, therefore no stigma of going through trial process)

Line up

o "Line Up" After RTC Attached
• May Law Enforcement Conduct a Line Up
• A Corporeal Identification Procedure
• Witness Identification of Live Suspect
• NO!
• Unless Counsel Present
• Why? (Irrelevant - policy - prob. Not to be tested)
• Critical Stage of Proceedings
• Confrontation of Witnesses
• Potential Contamination of Identification at Trial

Photographic Identification

o After 6th Am RTC Attached
o Non-Corporeal ID w/out Counsel
o No Violation of Right to Counsel
• No Confrontation
• Not a Critical Stage of Process
o What About Photo ID Before 6th Am RTC Attaches?

Due Process challenge to Witness ID 1

o Even If 6th Am RTC Does Not Apply
• You can raise a Due Process Challenge to Identification
• Is it fundamentally fair to bring this ID into court.
o Generally - For Exclusion of Identification (requirements)
• In Procedure (gotta have both!)
• Unnecessary (there was a better alternative that they didn't opt for)
• Suggestiveness (bad id spread or selection...somehow the police messed with the witness' recollection).
• Unreliable Identification (you still have to prove that the witness is unreliable, even if it was unnecessary and suggestive).

Due Process challenge to Witness ID 2 - Multi Factor Test for Reliability

o Multi-Factor Test for Reliability
• Witness's Opportunity to View Suspect at Offense
• Witness's Degree of Attention at Offense
• Accuracy of Pre-Identification Description of Suspect
• Level of Witness Certainty at Identification
• Time Between Offense and Identification

Identification procedures in general

- This stuff is tried to be proved by the suspect (try to claim many transgressions at once) this is opposed to the earlier doctrine about terry, etc. in which the stuff was tried to be proved appropriate by the officers.

Confessions and Incriminating Statements - Concerns

- What Is the Concern?
o Possibility for Law Enforcement Misconduct in Attempt to Obtain Incriminating Statement
• Violation of Right to Counsel (6th amend. Now, will get to 5th later)
• Violation of Due Process
• Violation of Right to Remain Silent
• Right to Not Incriminate Self

C&IS - DP concerns

- Due Process Concerns
o Remember: Shocks the Conscience
o Compulsion / Coercion
• vs.
o Voluntariness
- Why Concerns?
o Conduct of Law Enforcement
o Truthfulness of Statements
- Due Process Approach
o Easy Case
• Brutality
• Equivalent of Torture
o Intermediate Case
• Less Extreme Physical Conduct
o Hard Case (claim that is worth making, but will be difficult to win (not likely - 1%)
• Non-Physical Compulsion

D&IS - Test

o Involuntary
• Will of Suspect Overborne by Law Enforcement
o Based on Law Enforcement Misconduct
• Coercion
o Totality of Circumstances
• Including Character of Suspect
• & Official Conduct
o Viewed Point of View of Reasonable Person in Position of Suspect

D&IS - Kinds of Coercion

o Actual or
o Threatened Use of Force
• By Law Enforcement
• By Others: "The Mob Outside" or Medical Treatment
o Hall may use the word threat on the exam, but it doesn't mean it's not actual (they threatened not to give the suspect morphine for his pain - could be actual....make arguments. There is a good chance it will constitute actual).
o Psychological Pressure
o Promises of Leniency or Threats of Harshness
o Deception
• (it is possible to have certain cases where deception shocks the conscience).

D&IS - Factors

o Suspect's
• Age
• Mental State
• Mental Capabilities
o Interrogation
• Length
• Nature
• Number of Officers
• Understanding of Rights
o Impairments of Free Will
• Deprivation of Sleep / Food
• Intoxicants / Medications
• Injury / Pain

D&IS - Procedure

- Procedure
o Judge Determines Voluntariness
• Preponderance of Evidence
o Even If Statement Admitted
• Jury Determines Weight based off hearing all of the circumstances
o Why?

D&IS - RTC Approach

- Right to Counsel Approach
o After 6th Amendment RTC Has Attached
• Initiation of Prosecution
• Adversarial Judicial Proceding
o No Deliberate Elicitation (w/out Counsel)
• By Law Enforcement
• Interrogation (questioning or legal equivalent to it (can be conduct)

-RTC attaches if

-investigation focused on suspect
-suspect in custody
-interrogation of suspect
-suspect denied requested consultation with counsel
-suspect not informed of right to remain silent

more more miranda details????

Exception
Exigent Circumstances
With Concern for Public Safety
Miranda Warning Not Required
New York v. Quarles
Relevance of Knowledge of Warnings
Miranda Warnings Required Regardless of Subjective Understanding

Content/Form of Miranda Warnings

- Content/Form of Miranda Warnings
o Not Talismanic
• Magic Words Not Required (however, you are safe if you do use the magic words of Miranda)
o Only thing that's Rigid
• Requirement of Warnings
o Content/Form
• Miranda or Equivalent (flexible)

Miranda: Pieces

- Pieces (as per the equivalent substitute from the previous slide)
o RTRS
o Effect of Waiver of RTRS (can be used against you)
o RTC (Before/During/After Questioning)
• Arguments would arise if they just say (you have a right to counsel...no reference to time...hall makes it seem like it would be okay though...at least arguably acceptable).
• Problems arise when officers get elaborate with the warnings, but leave something out...pricestock - officer said before (could have said bare minimum) but leaves out after. In case, before, during, and all was enough.
o If Indigent, Appointed Counsel

Custodial Interrogation 1

o Under Formal Arrest (regardless of whether they take out handcuffs...as long as the person doesn't run away, if the officer starts says you're under arrest and ask questions, that is a formal arrest). Formal means officer says it.
o or In Custody at Station (regardless of whether the officer says you're under arrest). Not always a 100%, but probably.
• Pay attention to whether the room is locked, who made the effort to go to the station. Would you feel free to leave?
- (my notes) When you approach an exam problem dealing with a on the street encounter, keep in mind both arrests and search and seizure issues - arguments on both sides

Custodial Interrogation 2

or Otherwise Deprived, By Law Enforcement, of Freedom In a Significant Manner (de facto arrest)
• Factors
• Length of Detention
• Location
• Movement/Control of Suspect vs. Voluntariness (whose idea was it to have the conversation?)
• Intrusiveness/Force of Restraint
• Difficulty
• On-the-Street / In-the-Field Encounters (don't assume not custodial, but argue for the police, that it is a detention, but not custody).
• Distinguish
• Intimidating Aspects of Any Law Enforcement Questioning (custodial interrogation is inherently intimidating...if tone or another fact can be worked into one of the factors for de facto is good, but it does not have an effect in another way..don't be fooled by "officers used pleasant tones..." or angry officer or relaxed suspect).
• vs. Custody

Custody P.O.V.

- Custody P.O.V. (not sure this gets you anywhere...but use it in a specific way, may want to ask how to address it)
o Totality of Circumstances
o Reasonable Person in Suspect's Position
• Not Subjective View Law Enforcement

Avoiding Miranda

- Avoiding Miranda
o Suspect in Custody for Another Matter
• Miranda Still Applies (not charge specific)
o Suspect Questioned for Civil Offense
• That Could Mature Into Criminal Matter
• Miranda Still Applies
• If only a civil matter
• Probably doesn't apply, police can avoid Miranda, Court does not explicitly state this.

Interrogation

- Interrogation
o Express Questioning
o OR
o Functional Equivalent of Questioning
• Words or Actions Reasonably Likely to Elicit an Incriminating Response From Suspect (verbatim)
• = Deliberate Elicitation (Arguments on both sides - Innis) (the fact that it happens does not make it reasonably likely - dumpster hypothetical)
o But Law Enforcement Not Accountable for Unforeseeable Results (Arguments on both sides - foreseeable vs. unforeseeable).

Resumption of Interrogation

o After Invocation of RTRS
o Interrogation May Resume IF
• Interrogation Ceased Immediately
• Passage of Significant Period of Time
• 2 Hours Sufficient
• Renewed Miranda Warnings
• Regarding Different Offense
• ??? Different Officer, Different Location (Scholars split on these two issues...both can theoretically help each side)
- (my notes) Facts from Michigan v. Mosley on exam, compare hypo to these facts

Invocation of Miranda RTC 1

- Invocation of Miranda RTC
• After Invocation of Miranda RTC
• Interrogation Must Cease
• Cannot Resume Until After Suspect Receives Counsel
• Only if counsel is present and...
• No Resumption of Interrogation Allowed in the Interim
• No Resumption of Interrogation Allowed After Consultation With Counsel
• Regardless of Passage of Time
• (different from RTRS, therefore this right is better to invoke for suspect than others (RTRS and other amendment RTC)
• Regardless of Unrelated Offense

Invocation to Miranda RTC 2

o Clear Request for Counsel Required
• Not
• Maybe I should talk to a lawyer
• I'm supposed to have a lawyer
• Could I have a lawyer present when I talk?
• Can I get a lawyer right now?
• Unambiguous Request Needed (tone matters in deciding...things can look different on paper than how they sound) If slightly ambiguous, but probably against the officer, they can ask a clarification question.

Waiver

o Express Waiver
o Implied Waiver
• Agreement to Answer Questions
• Even If No Agreement to Relinquish Rights
• Silence Regarding Miranda Warnings Insufficient (people aren't usually going to state that they are going to be silent)
• Silence Followed by Incriminating Statements
- (My notes) remember, waiver can take place before and during confession (after?)

De Facto Waiver

o Is a Confession a Waiver? (incriminating statements constitutes a waiver)
o Better Analytical Structure
• B/P on Prosecution to Prove Waiver
• Direct Proof
• Inferential / Circumstantial Proof

Volunteered Statements

o Incriminating Statements Volunteered by Suspect Without Interrogation
• Constitute a Waiver
• Constitute an Initiation of Interrogation by the Suspect

Standing - Who Can assert a 4th Amendment Claim

o Only A Person Whose Reasonable Expectation of Privacy Is Violated by Law Enforcement
o SO if you have A B and C there, A gets to suppress because its their house. The AK47 they found can be used against B and C because they had no reasonable expectation of privacy. SO they all get tried together, A goes free because no evidence(0 years), B & C get convicted (max 40 years each). If you're the prosecutor, you want to convict all 3, so you convince B & C to implicate A, cut a deal with them, if you want 40 years against A, that will cost you years on B, so if we drop B's sentence down to 20, that's okay, if B is a good witness, we don't need C's cooperation and he can still get 40 years too.
• some problems here though. A's rights were violated, but B is benefitting when we use this system. A is the victim of the unconstitutional search, B is nothing but a bad guy and he gets less years. So lots of problems with this rule, but this rule has deep support on the Supreme Court.
o See if case (Rakas) from Emily's notes applies

Standing - Premises Factors

o Does a Visitor Have a Reasonable Expectation of Privacy
• Factors
• Nature of Premises: Commercial vs. Non-Commercial
• Amount of Time Visitor Spent in Premises
• Visitor's Connection to Premises
• Exam: if you come to this house everyday for a little while, but you've only been there for 5 minutes when police catch you, argue both sides of it
• See if case (Minnesota v. Carter) from Emily's notes applies

Standing - Critique

o Denying Claim to Short-Term Guests Undermines Security of Those Who Have Stronger Connection

Standing - Alternative If no reasonable expectation of privacy

o Supervisory Power?
• Judicial Integrity / Procedural Due Process
• Answer: No
o Shocks the Conscience?
• Implied Fundamental Right
• To What?
• Answer: Probably Not

Function of the Exclusionary Rule

o Evidence Obtained Because of Constitutional Violation Suppressed, or Excluded, From Presentation in Court
o Remedy for Violation of Constitutional Right

Origins of the Exclusionary Rule

o Rationale
• Judicial Integrity
• Sully the Robes
• Due Process
• Implications
o Imperative
o Constitutionally-Mandated
• Deterrence
• Remove Incentive to Disregard Constitution
• Implications
o Pragmatic

Excl. Rule: problems/alternatives

o Exclusionary Rule By Definition Operates Counter to Truth-Seeking and Law Enforcement
• Prevents Consideration of Evidence of Guilt
o Constitutional Tort Claim
o Management of Law Enforcement
• Administrative & Legislative

Modern Exclusionary Rule

o The Reality
• Exceptions Close to Swallowing Rule
o Rationale
• Judicial Integrity Rationale
• Virtually Eliminated
• Deterrence
• Focus of Reasoning
• Implications
• Sub-Constitutional
• "Prophylactic"

Excl. rule - in general

o 4th Am. Exclusionary Rule Applies to
• Prosecution's Case-in-Chief
o Not to
• Pre-Trial
• Bail
• Sentencing
• Probation/Parole
• Impeachment of Defendant (If Defendant Testifies)
- (my notes) look at the un-copyandpastable box on page 40 of the class notes

Non-criminal Exclusionary Rule

• Theoretically Possible, But Never Applied
• Calculation of Deterrent Value
• In Practice:
• No Exclusionary Rule for Civil / Administrative Proceedings
• don't jump on this next thing for the exam, really slim chance it will be on there

Exclusion depends on the constitutional violation

o Knock and Announce Rule
• Violation Does Not Lead to Exclusion
o Coerced Incriminating Statement
• Excluded for All Purposes
o 6th Am. RTC
• Excluded Like 4th Am. Violations

Excl. rule - Hudson v. Michigan

o Exclusionary Rule Does Not Apply to Violation of Knock and Announce to Execute Warrant
• Rationale
• Definition of Exclusion
o Constitutional Violation Not "But-For" Cause of Discovery of Evidence
• Deterrence
o Knock and Announce Violations Rarely, If Ever, Committed to Obtain Advantage
o Rule Suspended for Safety/Evidentiary Reasons
• Constitutional Significance of Knock and Announce?
o Hudson v. Michigan
• they have a warrant so we already sort of assume that the police are going to win here because they have probable cause
• here they go wrong by messing up the knock and announce, they didn't wait long enough
• the warrant is for guns and drugs, they have exigency here because he's dangerous based solely on the fact that in general people that have guns and sell drugs are dangerous
o See if case (us v. leon) from Emily's notes applies.

Excl. rule - good faith exception

o Exclusionary Rule Does Not Apply If Law Enforcement Reasonably Relies on Search Warrant Subsequently Determined Invalid for Lack of Probable Cause
• Logic
• No Deterrent Value
• Unless
• Facially Invalid Warrant
• Magistrate Not Neutral/Detached
• Warrant Issued in Unreasonable Manner
• Officers Dishonest/Reckless in Application
• Consider All Circumstances, Not Just Executing Officer

Excl. Rule - expansion of the good faith exception

o Does Exception Apply to Non-Warrant Searches?
• Search Incident to Arrest Following Arrest Based on Report of Facially-Valid Arrest Warrant

Miranda/self incrimination Exclusion (3 things)

o Exclusion from Case-in-Chief
• you're going to get to the same point as with 4th amendment
o Admissible for
• Impeachment of Defendant
• Because the perjury issue is on the table (Harris v. N.Y.)
• Limiting Instruction
o Admissible but only for the jury to use to evaluate the D's evidence as a whole...not guilt, otherwise usuable...
o But Remember - If Due Process Violation (police conduct that shocks the conscience)
• If Statement Involuntary/Coerced
• Exclusion for All Purposes
• On exam, after finding stuff excluded throughout the exam, then at the end...say if this evidence is excluded because of this...than X or than Y.
• Defendant who says incriminating statement (in violation of Miranda), then they should not take the stand, but if it's a violation of D.P., then they should
o This will be on the exam

Miranda Exclusion: exception

o If we have a statement in violation of Miranda, the D should not take the stand, however, the incriminating statements aren't admissible when other people take the stand, so the D should not be afraid to bring up people (friends) James case
• Opens the door for a defense witness that conflicts with defendant's own statements
• Perjury by proxy
o Unlawfully Obtained Incriminating Statements by Defendant Admissible to Impeach
• Only the Defendant
• Concern
• Extension of License to Perjury to
o Perjury by Proxy
• vs. Perjury Prosecution Adequate Deterrent
• can use excluded incriminating statements in later trials (perjury charge vs. original witness)
• Exclusionary Deterrent Balance
• Danger of Encouraging Miranda Violation

Miranda Exclusion: Consecutive statements

o First Statement Obtained in Violation of Miranda, But
• Second Statement Obtained in Compliance
o Normal Expectation
• Exclusion
• Presumption of Taint
• "Cat Out of the Bag"
o But
• If Second Statement Genuinely Untainted
• Evidence of Voluntariness, Waiver
• Second Statement Not Excluded
• Unless
o First Violation of Miranda Intentional
o Second Statement Admissible Only If First Violation Unintentional
o Cases: Oregon v. Elstad & Missouri v. Seibert (notes in between)
o Look for on the exam (this slide is always tested)
• A person who confesses twice

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