Upgrade to remove ads
Only $2.99/month

Criminal Procedure

Terms in this set (266)

The 4th Ad. "the people" refers to persons who are part of the national community. Therefore, 4th Ad. does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country.
U.S. v. Verdugo-Urquidez
When do foreign aliens have 4th Ad and other Constitutional protections?
Only when a person is part of the "national community" or has "substantial connections" to the U.S. Suspects who are extradited to the U.S. do not retain 4th Ad. privilege.
Does the 4th Ad. apply to private citizens?
No. The 4th Ad. applies only to government agents. BUT, where a private party acts as an instrument or agent of the state in effectuating a search or seizure, 4th Ad. interests are implicated. This is known as the "Private Search Doctrine".
Three factors of the Government Search Doctrine:
1. The government must have knowledge or acquiescence of the search.
2. The private searcher had the original intent to search on behalf of the government.
3. The government must consent and control the search by the private actor. (U.S. v. Walther & U.S. v. Shahid)
"The Fourth Amendment protect people, not places."
Katz v. United States
Case which changed requiring privacy expectation from requiring a trespass to a reasonable expectation of privacy standard.
Katz v. United States
2 part Katz Test:
In order to retain 4th Ad. protection, a person must have:
1. A subjective expectation of privacy;
2. That is objectively reasonable
Is a search necessarily unlawful under the 4th Ad?
No. There are two levels to assess a 4th Ad. inquiry:
1. Is it a search?
2. If yes, is it an unreasonable search?
Only unreasonable searches are 4th Ad. violations, therefore if there is a warrant, it's not unreasonable.
There is no reasonable expectation of privacy in garbage which has been placed at the curbside because it is readily accessible to any member of the public. Police cannot be expected to ignore criminal activity that can be observed by the "any member of the public."
California v. Greenwood
Defendant has no REOP in his property when viewed from a public vantage point, included from a low-flying helicopter, because any member of the public with a helicopter, flying in navigable airspace, would be able to see and figure out what was inside. There is no search when an officer sees items from an area where she has the legal right to be.
Riley v. Florida
2 factors to determine if a search is reasonable:
1. Has the suspect exposed or concealed the information?: It is more objectively reasonable when someone makes an attempt to conceal.
2. Is the information located in a public or private setting?
Area immediately adjacent to the home and associated with intimate activities.
Curtilage (private: heightened expectation of privacy)
For 4th Ad. purposes: unoccupied and undeveloped areas.
Open Fields (not private: lower expectation of privacy)
Checklist for 4th Ad. violations:
1. Is it a search? If yes;
2. Is it a reasonable search?
3. Is there probable cause?
4. Is there a warrant? If no;
5. Is there a warrant exception?
Does police planting and tracking of a radio transmitter violate the Fourth Amendment?
No. Tracking involves no REOP because movements in public are in plain view. (U.S. v. Knotts)
What are some factors that courts use to determine if a search is reasonable?
1. Property interests (who owns it)
2. Social customs
3. Past practices/expectations
4. Location of the property
5. Assumption of the risk
6. Vantage point of law enforcement officer (curtilage? open field?)
7. Was the search in the home? (where there is the most heightened expectation of privacy.)
Does the warrantless use of a tracking device on a suspect's vehicle to monitor its movements on public streets violate the suspect's 4th Ad. rights?
Yes. There was still a reasonable expectation of privacy in a person's movements on public thoroughfares. However, The Katz 2-prong test is not the sole inquiry because there is still a property/privacy expectation according to the law of trespass. (U.S. v. Jones)
What does U.S. v. Jones add to the 4th Amendment inquiry?
The trespass doctrine is revived by Justice Scalia in the majority. Instead of solely the Katz 2-prong test, the Court brings back the original framework of analysis - physical trespass. Concurring opinions warn this is unnecessary (Alito would prefer to stick with just the reasonability standard as has been developed through the binding precedent of the Court.)
4th Ad. tracking device cases:
Knotts: No reasonable expectation of privacy because movements were in plain view; BUT
Jones: Did the implanting of the device violate trespass law? (--> Jones adds this new inquiry to the tracking device line of cases).
Wire taps placed on informants do not violate the 4th Ad. because suspects assume the risk when they divulge information to a 3rd party. Therefore, no REOP.
United States v. White
In what cases do suspects assume the risk of a search?
1. Agents and informants: no REOP because we assume the risk that the third party will inform authorities. (Hoffa v. U.S.)
2. Electronic surveillance (bugs): No REOP because where electronic devices are used. (U.S. v. White, extends the Hoffa Rule)
3. Pen Registers and Pagers: No REOP because you voluntarily convey the numbers that you dial to the phone company.
Applies to non-consensual conversations which LEOs wish to record.
Title III of Omnibus Crime Control Act (The Wiretap Act)
What are the procedures under the Wiretap Act?
1. Requires a special warrant.
2. Requires probably cause (that a particular person will discuss a particular crime at a particular place).
3. Requires a particular description of the crime, success of previous measures, facility, type of communication, and identity of target.
Factors to determine if something is curtilage:
1. Proximity to the home
2. Is it enclosed?
3. What is the nature of use?
4. Have there been steps taken to protect from view?
A dog sniff is permitted during a traffic stop without Reasonable suspicion so long as:
the dog sniff does not prolong the stop or otherwise change the character of the stop.
"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the 4th Ad."
Illinois v. Caballes
When a special and unique interpretation of a case or authority is found to be necessary.
sui generis (In crim pro, used to describe the purpose of dog sniffs on 4th Ad.)
Even though a brief seizure of luggage at an airport to conduct a dog sniff is allowable, the period of time for the sniff cannot exceed reasonability.
U.S. v. Pace, holding that transferring luggage to another location and waiting 90 minutes for a dog sniff was an unreasonable seizure. (not that the dog sniff itself was an unreasonable search).
Is a dog sniff on the front porch of a suspect without probable cause an unreasonable search?
Yes. The front porch of a home is part of the curtilage, making it part of the home itself for 4th Ad. purposes. Police officers may not go beyond the scope of their implied license to pass onto someone's property. Bringing a drug sniffing dog exceeds the scope. (Florida v. Jardines)
The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the 4th Ad.
Kyllo v. U.S. (holding that the use of a thermal imaging device to detect a marijuana growth was an unreasonable search without PC).
Rules for sense enhancement tools by police:
-Use of ordinary technology in common use is considered plain view (ex: binoculars, flashlights, cameras are okay to use)
-However, police may not use devices that are not available to the public (ex: satellite photography, thermal imagers)
What is a seizure?
By means of physical force or other show of authority, the government asserts dominion and control over a person or object. A person is seized when under the totality of circumstances, a reasonable person would think she is not free to leave or otherwise terminate the contact.
Factors to determine if someone or something is seized:
1. Whether free to leave
2. Whether can ignore police presence
3. Submission to authority
4. Threatening presence
5. Display of weapons
6. Physical touching
7. Language or tone
8. Number of officers
9. Physical force
Interrogating relating to ones identity or a request for ID by LEOs does not amount to a 4th Ad. seizure unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would think that they would not be free to leave had they not responded.
INS v. Delgado (holding that INS agents questioning employees at a factory about their citizenship was not an unreasonable seizure.)
A person is seized within the meaning of the Fourth Amendment only if, in view of all the circumstances that surround the incident, a reasonable person would have believed that he/she was not free to leave.
U.S. v. Mendenhall (holding that approaching a passenger at an airport and asking for her ticket and ID was not a seizure even though the passenger was never explicitly told that she was free to leave.)
"No seizure occurs when police ask questions of an individual, ask to examine an individual's ID, and requests consent to search his or her luggage - so long as the officers to not convey a message that compliance with their requests is required."
Florida v. Bostick (holding that boarding a bus and asking passengers for their ticket and ID was not a seizure).
2 kinds of seizures:
1. stop/detention
2. arrest
*both implicate the 4th Ad. but there is a fuzzy line between the two.
Probable Cause Standard
-"More than bare suspicion, less than evidence needed to sustain a conviction. " (Brinegar v. U.S.)
- "a fair probability that contraband or evidence of a crime will be found in a particular place" (Illinois v. Gates)
A nebulous term that can only be defined in reference to the applicable case law.
Probable Cause
What are the levels of justification from highest to lowest?
1. Beyond a reasonable doubt
2. clear and concise
3. Preponderance of the evidence (50+1%)
4. Probable cause
5. Reasonable suspicion
Court abandoned the Auguilar-Spinelli test to determine probable cause in favor of a totality of the circumstances test.
U.S. v. Gates (given the totality of the circumstances, "is there a fair probability that contraband will be found in a particular place?)
What is the problem with "snitches"?
low level of believability. May be lying to protect themselves, hurt others, or to gain favor with the police by money or leniency.
Should courts take whether someone was a "snitch" into account (as opposed to a victim's testimony or a police officer's testimony)?
Yes. Any informants veracity, reliability, and basis of knowledge are important in determining probable cause and can be used as a factor in a totality of circumstances approach. BUT those issues are not determinative and should not be rigidly applied.
What are some questions that are reasonable to ask of an informant?
1. Is the informant credible? (history of accurate tip? ordinary citizen?)
2. Is the information reliable? (can it be corroborated?)
3. Basis of knowledge? (evidence of personal knowledge? sufficient detail to assume knowledge? corroboration?)
What is the Terry balancing test?
Government interest in crime control v. Individual privacy
According to Terry, can stop (seize/detain) when:
Specific and articulable facts that a crime has, is, or is about to occir and that the suspect had something to do with it (AKA reasonable suspicion)
According to Terry, can frisk when:
Officer believes suspect is presently armed and dangerous.
After lawfully stopping a vehicle, an officer may order its passengers to step out.
Maryland v. Wilson. Justification: officer safety
A seizure unrelated to the reason for the stop is lawful only so long as it does not measurably extend the stops duration.
Rodriguez v. U.S. (holding that the use of a K-9 unit after the completion of an otherwise lawful traffic stop exceeded the time reasonably required to handle the matter and therefore violated the 4th Ad.
Factors for Reasonable Suspicion
-descriptions by witnesses matching suspect
-possession of goods
-proximity to crime scene
-previous report of crime
-time of day
-furtive gestures
-prior record
-experience of officer
-flight
-high crime area
-suspect seems out of place/nervous
Police may rely on FBI profiles when making inferences from observations, but they must independently determine if there is reasonable suspicion.
U.S. v. Sokolow (holding that LEOs had more than just a matching profile which was sufficient to amount to reasonable suspicion.)
In general, police officers cannot detain a person solely for the purpose of obtaining an ID and failure to provide ID when stopped cannot provide reasonable suspicion or probable cause. However, some states have statutes which require the public to furnish their IDs. This is state specific.
Hiibel v. 6th District Court
Checklist for Police Conduct during stops
1. Was it a seizure? If yes;
2. Was the seizure reasonable?
3. Did the seizure last too long? (does it exceed the amount of time or relocate the suspect? No bright line. 30 minutes has been held okay while 90 minutes too long).
4. May a frisk take place? (are they armed and dangerous?)
5. Does the frisk go too far? (Did the officer feel something known to be not a weapon and continue to search?)
Seizures must be temporary and no longer than reasonably necessary to effectuate the purpose of the stop. In a seizure, the police must use "least restrictive means".
Florida v. Royer
During a frisk, officers may remove and seize items that they suspect may be weapons but they may not remove items that they know are not weapons for further examination.
Minnesota v. Dickerson; "plain feel" case; If the officer feels something else and they can tell immediately what it is (i.e. paraphernalia) they need greater justification to search than just the frisk.
occurs when one is taken into custody pursuant to legal authority.
Arrest
Determination of reasonable suspicion has to be based on commonsense inferences about human behavior.
Illinois v. Wardlow (holding that police officers could use suspect's evasive behavior in combination with the fact that it was a high crime area in determining reasonable suspicion necessary for a Terry stop).
Tip of single incident of improper driving suggestive of drunk driving is sufficient to justify a stop and need not be verified by police.
Navarette v. California
Do officers violate 4th ad. when, after making a routine traffic stop, they search an individual who is consensually conversing with those officers?
No. Lawful traffic stops entail the "temporary seizure of driver and passengers" that continues for the duration of the stop. So long as the officers reasonably suspected that the suspect was armed and dangerous, they may frisk. .
A search conducted by a state employee acting within the scope of their job which implicates the Fourth Ad.
Administrative searches
Administrative searches balancing test (often applied in the school setting for locker/purse searches):
Balances:
1. the individual's expectation of privacy
2. The need of administrator's to maintain order.
Based on reasonable suspicion, search measures in administrative searches (school searches) must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."
Stafford United School District v. Redding (holding that the search of a young girls was unwarranted because the school lacked reasonable suspicion).
Are sobriety checkpoints a 4th ad. violation even though there is no reasonable suspicion for the stop?
No. Courts use the admin law balancing test. There is an undisputed interest for State's to eradicate drunk driving as a public safety initiative and the intrusion of briefly stopping motorists is slight. Therefore, the balancing test weighs in favor of the state.
Administrative searches:
1. Enforce regulations, not laws.
2. may be conducted by non-law enforcement officers.
3. DO implicate the 4th Ad.
Administrative searches are okay if:
1. Reasonable suspicion (in some cases).
2. Showing that inspection necessary to enforce regulatory scheme.
*no individualized suspicion necessary (in some cases - like DUI checkpoints).
Checklist for Admin searches:
1. Is admin search permissible? (is the purpose to enforce a gvt. reg and not for a criminal purpose?)
2. Is there administrative probable cause? (is inspection needed to enforce a regulatory scheme,
Examples of Administrative searches:
Home/business inspections, border searches, school searches, airport screening, drug testing for gvt. assistance, DUI checkpoints, probation searches, jail strip searches.
Warrant requirements for Admin searches:
-Residential and Safety inspections: warrant needed (exception is fire safety, in which no warrant needed immediately after a fire but is needed after the exigency has passed).
-Business inspections: No warrant needed, but must be conducted during normal business hours.
-School searches: no warrant needed.
-Border: no warrant needed
Does the 4th Ad. permit a jail to conduct a suspicion-less strip search whenever an individual is arrested, including for minor offenses?
Yes. Correctional facilities have a strong interest in keeping their employees and inmates safe. A general strip search policy adequately and effectively protects that interest. (Florence v. Board of Freeholders of Burlington)
Conducting a DNA swab test as part of the arrest procedure does not violate the 4th Ad. because the test serves a legitimate state interest and is not so invasive so as to require a warrant.
Maryland v. King (holding that collecting DNA from individuals who are arrested for a crime of violence okay).
Border searches:
1. Borders have reduced protection (no REOP, no warrant or probable cause needed to search).
2. Prolonged detention at the border requires only reasonable suspicion.
3. Probable cause and warrant are however needed for a body cavity search.
Roving Checkpoints:
1. If away from border of first entry point, need reasonable suspicion to stop and check someone's immigration status. (the fact that a driver may appear to be foreign is not alone RS for a stop)
2. Probable cause is needed for search of car subjected to stop.
search in which the justification proffered by the State for the search is legally sufficient, but where the searching officer was in fact searching for another, legally insufficient, reason.
Pretext search
As long as officers have a reasonable cause to believe that a traffic violation occurred, they may stop any vehicle. In ensuing search and seizure of the offending vehicle is okay (so long as legal) regardless of what other personal motivations the officers might have had for stopping the vehicle.
Whren v. U.S. (holding that stopping a car with unusually high speed and subsequently finding drugs was not a violation of the 4th Ad. and approving of pretext searches for officers).
"if an officer has probably cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the 4th Ad. arrest the offender."
Atwater v. City of Lago Vista (holding that arresting a mother for not having her children in seatbelts was not a 4th Ad. violation).
Requirements to issue a warrants:
1. Neutral and detached magistrate/judge
2. particular description of the place to be searched
3. particular description of the items to be seized
4. Oath and Probable cause
Requirements to execute a warrant:
1. 4th Ad. requires warrants to be executed in a reasonable manner.
2. The determination of what and where to search, when to search, and how to search must all be reasonable.
3. Excessive or unnecessary destruction of property can render a search unreasonable.
4. Cannot use force unless entry is refused
Knock and announce procedures for warrant execution:
-4th Ad. requires knock and announce unless there is reasonable suspicion to believe that a knock and announce would be dangerous or futile
-Exclusionary rule does not apply to knock and announce violations
Searches during execution of warrants:
General Rule: officers may detain and search persons on the premises of a search warrant when it is reasonable; BUT
Public Places: cannot detain or search persons not named in the warrant unless there is probable cause. (although police may conduct a Terry stop of unnamed persons to search for weapons);
Homes: all occupants may be detained when warrant is executed for contraband. If not for contraband, occupants may be detained and searched when reasonable.
"Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the 4th Ad. - subject only to a few, well-delineated exceptions."
Katz. v. United States
Exceptions to the Warrant Requirement:
1. exigent circumstances
2. hot pursuit
3. searches incident to arrest
4. protective sweeps
5. automobiles
6. plain view
7. inventory searches
8. consent searches
9. special needs searches (administrative searches)
What are exigent circumstances?
Unforeseen circumstances such that delay will allow :
-escape of a felon
-destruction of evidence
-harm to police or others (emergency assistance)
Police may not claim exigent circumstances if:
1. they created the exigency by engaging or threatening to engage in conduct that violates the 4th Ad.
2. Knocking on a door to announce police presence does not create an exigency and is permitted (Kentucky v. King)
Hot Pursuit searches
-Police must have PC to arrest
-hot pursuit must = actual pursuit
-there must be more or less continuous knowledge of whereabouts
-can search for individual weapons and evidence without a warrant and can continue the search even after the suspect has been caught.
Does the 4th Ad. prevent the taking of a warrantless blood sample under exigent circumstances?
Yes. 4th Ad. protection against warrantless searches applies to blood alcohol tests unless specific exigent circumstances exist. However, each case must be considered on its individual facts. Because there are cases in which the natural dissipation of alcohol in the blood would be considered an exigent circumstance, there may in some cases be a need to take a blood sample without warrant. However, the Court has refused to make a categorical rule. The 4th Ad. protection against bodily intrusion outweighs the state's interest in gaining evidence quickly. (Missouri v. McNeely)
Search Incident to Arrest rules:
Upon custodial arrest, officers may search:
1. Arrestee's person (clothing, pockets, containers in pockets, other containers immediately associated with the arrestee like purses or backpacks)
2. Areas within the arrestee's immediate control
*MUST BE A CUSTODIAL ARREST*
How do you determine whether an area is within an arrestee's "immediate control"?
No bright line test, but factors include:
-size and athleticism of arrestee
-Whether arrestee is handcuffed
-size of the room
-number of officers
-whether any containers are shut or locked.
*Courts often treat the room in which the person was arrested or the "wingspan" rule as the de facto bright line.
Rationale for searches incident to arrest:
1. Officer safety
2. To prevent destruction of evidence.
May an officer conduct a search incident to arrest if suspect is being detained or issued a citation?
NO. even in jurisdictions where a citation is considered a technical arrest with field release, a SIA is impermissible.
May an officer still conduct a search incident to arrest even if there are no concerns for officer safety whatsoever?
Yes. Specific facts of the case do not matter. Offices have blanket authority to search permissible areas upon any full custodial arrest.
Can a search of a stopped vehicle that occurs prior to the driver's arrest be sustained under the "search incident to arrest" exception that permits officers to search stopped vehicles without first obtaining a search warrant?
No. Full-stopped car searches can only be conducted when the safety of the officers is at risk. If there is no evidence of such risk, then the officer may not do a full search of the car. (Knowles v. Iowa, holding that the search of a vehicle and subsequent finding of marijuana was a 4th Ad. violation because the suspect had not been arrested or even given a ticket prior to the search).
Incident to Arrest searches of automobiles: may a police officer search the interior of a vehicle within scope of a search incident to arrest?
It depends. A police officer may only search a vehicle under the SIA premises IF:
-an arrestee was a recent occupant of a vehicle and is within reach of the passenger compartment at the time of the search; OR
-There is probable cause to believe evidence of the offense of the arrest is inside the vehicle.
If neither of these apply, then the search of the vehicle is beyond the scope of the search incident to arrest.
Is a search warrant required to open a locked footlocker that was seized during an arrest, when there is PC to believe that the footlocker contains contraband?
Yes. Personal effects that have been confiscated by the police incident to an arrest cannot be searched without a warrant, unless exigent circumstances exist. Once property cannot be accessed by an arrestee, it cannot be searched without a warrant. (U.S. v. Chadwick)
What is the automobile exception?
Things that are mobile have a lower expectation of privacy because they can be quickly moved out of the area, are in plain view, and are subject to more government regulation. Therefore, no warrant is necessary to search, though officers must still have probable cause.
Closed containers:
As a general rule:
-If you have probable cause to search a container, you NEED a warrant.
-If you have probable cause to search a car with a container inside you DO NOT NEED a warrant. You can search anywhere in the car (glove box, trunk, etc.)
If probable cause justifies the search of a vehicle, every part of the vehicle is open to inspection, including closed containers.
U.S. v. Ross
What happens if, while searching, the police find a closed container (such as luggage) in a car? Is a warrant necessary?
If probable cause was for the container before it was placed in the car, then police need a warrant. BUT, if probable cause was for the car BEFORE police discovered the container, then they can open the container without a warrant.
California v. Acevedo
Police tracked a package of MJ to an apartment. While officers sought a warrant, D left with a brown paper bag that looked large enough to hold the marijuana. D placed the bag in the trunk and drove away. Police stopped the car, searched the trunk, and found the package. Officers were not required to get a warrant before opening the bag because there was no difference between the container the police had PC for in advance and the one discovered during the PC search. The Court reasoned that not permitting the search provides minimal privacy protections and impedes law enforcement.
May police officers, with probable cause to search a car, inspect personal items belonging to its passengers without violating the 4th Ad?
Yes:
-So long as there is probable cause to search a stopped vehicle, all subsequent searches of its contents are legal as well.
-Such searches are especially warranted if aimed at looking into objects or personal belongings capable of concealing items that are the object of the search. (Wyoming v. Houton, holding that the PC search of a passenger's purse was not a 4th Ad. violation even though the search was based only on the driver).
-The Court must use the balancing test by weighing the privacy of individuals against the need of the government to promote legitimate interests.
Auto Frisk
Police may search main compartment of the car if there is a reasonable expectation that there may be weapons inside. If there is a container inside the passenger compartment, police may search it only if there is a reasonable expectation that there is a weapon inside (i.e. a gun pouch).
What is the difference between the following:
-Auto Exception
-Auto Search Incident to Arrest
-Auto Frisk
Auto Exception: police may search the entire vehicle (upholstery, door panels, etc.) including any containers if probable cause. Note: this is an exception to the need for a warrant, not to a need for probable cause.
Auto SIA: If appropriate, police may search passenger compartment including containers.
Auto Frisk: Police may search containers that may hold a weapon if there is reasonable suspicion that weapons are inside.
Do you need a search warrant for a container that is readily reveals what's inside?
No. There is no warrant needed if "container proclaims its contents". Example, guitar case or see-though backpack.
If a suspect has a cell phone on his persons after an arrest, can police search the cell phone without warrant?
No. The warrantless search exceptions following an arrest exist for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The phone should be placed in a "Faraday Bag" and secured in police custody until a warrant can be procured. Once there is a warrant, the police can search the phone for evidence. (Riley v. California, holding that a cell phone may not be searched pursuant to a search incident to arrest.)
What do you need in order to search a cell phone?
Probable cause AND a warrant, or exigent circumstances. (however, the possible destruction of data via remote wiping or encryption is not likely to support a claim of exigent circumstances).
May police officers search a home during an arrest when there is no arrest warrant and no exigent circumstances?
No. The entrance to a person's home is a critical point where constitutional safeguards are heightened. This is true even when there is statutory authority permitting the searches. (Payton v. New York, holding that the search of a suspects drawers during an arrest was impermissible even though there was a statute in New York that allowed police to enter a home without warning to make a felony arrest.)
Do you need an warrant to arrest someone in public?
No. Only probable cause is needed, not a warrant. However, in the home or "private places" a warrant is needed. For 4th Ad. purposes, "private places" means anywhere that you are staying as an overnight guest.
If police have an arrest warrant and enter a home, can they confiscate items inside?
Yes, but only if they items are in plain view. Once inside, the plain view doctrine applies.
A bullet was fired through the floor of D's apartment which injured a man in the apartment below. To investigate the shooting, police officers entered D's apartment and found three weapons along with a stocking mask. During the search, which was done without a warrant an officer noticed some expensive stereo equipment which he suspected had been stolen. The officer moved furniture and some of the components in order to view and record the serial numbers, and seized them upon learning from police headquarters that his suspicions were correct. Did the officer's actions violate the 4th Ad?
Yes. In this case, (Arizona v. Hicks), the officer could not get to the serial numbers without moving furniture and the stereo equipment which was beyond the scope of the exigent circumstances with which they entered. While the plain view doctrine allows police officers, under some circumstances to seize evidence in plain view without a warrant, they may not go beyond the original scope. (Note, if the serial numbers were in plain view, then it would have been different.)
A police officer may seize contraband when it is in plain sight/plain feel and "its incriminating character is immediately apparent."
Minnesota v. Dickerson (holding that in a Terry stop when officers felt a baggie with what he knew to be cocaine, it was not okay to pull it out because a Terry stop is specifically for weapons. However, if the officer felt this in a PC search, they would be able to pull it our).
Plain feel/Plain sense doctrine
officers can use any senses to establish justification for a search (sight, hearing, smell, feel) so long as the officer is in a place which she has a right to be and the illicit nature of the contraband is immediately apparent. (can't further manipulate the object to see what it is.
Plain view seizures:
-Item views from lawful vantage point
-officer must have the right of access to the object
-the incriminating character of the object must be immediately apparent (must be contraband or PC to believe it is evidence).
Security Sweeps
During the course of an arrest or other lawful police activity:
1. police may conduct a cursory search (sweep) of areas immediately adjoining the area of arrest, without Reasonable suspicion or probable cause; (this is a cursory sweep) And
2. police may sweep other areas that close by area adjoining arrest if there is reasonable suspicion of an attack.
3. However, the security sweep is only a search for persons.
Anything found by police during the course of a warrantless search incident to arrest or incarceration is admissible, included the clothes on their persons.
U.S. v. Edwards (holding that removing the clothes of D while he was entering the jail and using paint splatter on the clothes as evidence against him was not a 4th Ad. violation because it was part of the search incident to arrest...AKA "delayed search incident to arrest")
Inventory Searches
Upon arrival of suspect to jail facility or of vehicle to an impound lot, officers may inventory the items on the person or in the car.
Purposes:
1. protects police from false claims
2. Protects arrestee from loss
3. protects police and public from harm.
Requirements:
1. Must be a lawful seizure
2. Must use standard police practices.
3. Inventory must be for non-investigate purposes.
**The police officer on the scene should not exercise any discretion over the inventory search.
Can you consent to a search by law enforcement?
Yes, with waiver. In order to have waiver, suspect must:
1. have notice of their rights
2. be informed of character of rights
3. be informed of consequence of waiver; AND
4. give waiver free and voluntarily.
The test to determine if a subject has voluntarily consented is the totality of the circumstances. If the subject knows he or she has a right to refuse, it is a factor to be considered, but that fact is not the sole consideration.
Schneckloth v. Bustamonte (holding that, based on the totality of the circumstances test, even though the driver was not explicitly told that he had the right to refuse, his consent was still freely given.)
Do you need to be informed of your right not to consent?
No. (Schneckloth v. Bustamonte, U.S. v. Medenhall, U.S. v. Drayton)
How do you determine if consent is given voluntarily?
-Totality of the circumstances test.
-There are objective and subjective factors
-suspect need not be informed of the right not to consent
-involuntariness of consent MUST stem from police action.
What are the objective and subjective factors to determine voluntariness?
1. whether suspect was in custody
2. was there a show of force?
3. was there physical coercion?
4. was the suspect deprived of food or sleep?
5. police deception
6. age of suspect
7. level of education of suspect
8. mental state of suspect
9. recent drug or alcohol use by suspect
10. race of suspect
11. previous experience with the police or the criminal justice system
May law enforcement search a home without a warrant after one tenant has already been arrested if a co-tenant consents to the search?
Yes. Although warrantless searches are unreasonable when two co-tenants are present and one objects to the search, that same search IS reasonable if the objecting tenant is no longer present. (Fernandez v. California, holding that a co-tenant could give consent to a search even though her co-tenant objected because he had been arrested and was no longer present.)
Who may consent to searches?
1. Actual authority: holder of an expectation of privacy in the area search - this would generally be the property owner or the occupant of the property; landlords cannot grant consent to search tenant's homes except in common areas.
2. Common authority: co-inhabitant's may grant consent but only to areas they have mutual use or access. Police cannot rely on one co-inhabitant's consent where anther is present and refuses to consent. However, a co-inhabitant's refusal to consent is only effective during the time the co-inhabitant is physically present.
3. Children: over the age of majority, children are treated as co-inhabitants. (between 12-18). Children under 12 can never grant consent and some courts never permit a child to waive their parents rights.
4. Apparent authority: Consent granted by one who has not authority to do so, is nonetheless valid if a reasonable police officer under the circumstances would have believed the consent was valid (a babysitter at the house)
Scope of consent to search:
-officers may only search in areas within the scope of the consent granted. (Scope is defined unhelpfully as what a reasonable person would be leave it to be). However, consent may be withdrawn at anytime, though withdrawal of consent can give rise to probable cause for law enforcement.
Evidence obtained in a manner that violates Constitutionally protected rights will not be admitted in a prosecutor's case-in-chief.
The Exclusionary Rule
Purpose of the Exclusionary Rule:
to take away the incentive for law enforcement officials to violate a suspect's Constitutional rights.
Case that held the 14th Ad. did not require implementation of the Exclusionary Rule in state courts.
Wolf v. Colorado (later overturned by Mapp v. Ohio)
Mapp v. Ohio
The exclusionary rule is the required remedy for 4th Ad. violations in both state and federal court. Over turns Wolf v. Colorado because applying the ER in Federal court but not state court encourages disobedience to the Constitution.
Rationales of the Exclusionary Rule:
1. Deterrence
2. Judicial Integrity
3. Prevents "manufacturing" of evidence.
What is standing?
A limitation of the 4th Ad. that prevents a defendant from challenging the violation of the privacy rights of a 3rd party.
Suppose the government unlawfully breaks into a bank to seize information linking you to tax fraud. Can you claim the evidence should
be suppressed in your trial because the bank's rights were violated?
No. You do not have standing to challenge the violation of the bank's rights.
In order to have standing, Defendant needs to show a "legitimate" expectation of privacy or a possessory interest in the place searched in order to be eligible to challenge the search.
Rakas v. Illinois
D was wanted as a suspect in a murder investigation. Police learned that D was
staying with two women in their home. The police entered the home with weapons drawn and arrested D. The police had neither a
warrant or consent for the entry. Did D have a sufficient interest in the women's home to challenge the legality of the warrantless arrest?
Yes. As an overnight guest, the defendant had
a REOP in the women's home and could challenge the warrantless entry and arrest. (Minnesota v. Olson) (Minnesota v. Olson is distinguished from Minnesota v. Carter, where two men exchanged drugs for rental of an apartment for a period of only a few hours. They were arrested without warrant in the apartment for trafficking drugs. The Court held that the men were business invitees and that because they were not overnight guests, they did not have standing (no REOP in the apartment) to challenge the search.
Court's Rationale for Minnesota v. Olson:
1. staying overnight in another's home is a longstanding social custom
2. society recognizes a house guest has a legitimate expectation of privacy
3. homes of 3rd parties and hotel rooms have at least as much privacy as a "phone booth" (Katz reference)
4. Home guest need not have untrammeled right to admit or exclude others, as adult children do not even have this right.
How do you determine if someone has standing (a reasonable expectation of privacy) in a place?
Totality of circumstances test:
-complete dominion and control?
-right to exclude others?
-continuing access?
-possessory interest?
-legitimate presence?
-overnight guest?
Standing Generally:
-Overnight guests?
-temp guests/business invitees?
-those who have possessory interest?
-businesses?
-cars?
-Overnight Guests: have standing
-Temp guests/business invitees: no standing
-Those who have a possessory interest: have standing
-businesses: owner/officers of business may have standing if there is a "business nexus" to the area searched.
-cars: owners and drivers have standing. Passengers usually don't have standing but sometimes will depending on TOC
Do you have standing to contest a search if you have a possessory interest in the place/thing seized?
Generally yes. But see Rawlings v. Kentucky, where the court held that there was no REOP in someone else's purse.
When does Exclusionary Rule apply?
Generally the ER applies to evidence directly
obtained from 4th Ad violation and to derivative
evidence, or "fruit of the poisonous tree".
A limitation on scope of the
exclusionary rule; requires us to ask whether evidence obtained lawfully, but which would not have been obtained but for some unlawful act, must be excluded
The Attenuation or "fruit of
the poisonous tree" Doctrine
Two ideas of Attenuation Doctrine (Fruit Doctrine):
1. Evidence that would not have been obtained but for an unlawful act must be excluded, even if it was obtained lawfully.
2. Evidence that either was, or inevitably would have been, discovered independently of the unlawful act, need not be excluded.
At 3 a.m., police stop a motorist with no justification whatsoever. The motorist voluntarily consents to a search of his vehicle. In the course of the search, police discover evidence of a crime. Was the search lawful and can the evidence be used in court?
The search was lawful, because it was the product of voluntary consent. But the evidence discovered would not have been obtained but for an unlawful act — the unjustified traffic stop. Therefore, the evidence is 'fruit of the poisonous tree' and must be excluded, despite the fact that it was discovered in the course of a lawful search.
At 3 a.m., police stop a motorist with no justification whatsoever. The motorist voluntarily consents to a search of his vehicle. In the course of the search, police discover a letter, which the police read. The letter states, "I killed him. The body is in the middle of the town square." Police race to the town square. They find a dead body right in the middle of it. The town square is filled with thousands of people every day, but at 3 a.m. it is deserted. Did police discover the body lawfully and must it be excluded as evidence?
Police discovered the body lawfully, but would not have discovered it but for the unlawful stop. However, the body would inevitably have been discovered the next day, regardless of the prior unlawful act, so the evidence does not need to be excluded.
At 3 a.m., police stop a motorist with no justification whatsoever. The motorist voluntarily consents to a search of his vehicle. In the course of the search, police discover a letter. The letter The letter states, "I killed him" and says the body is buried in the basement. As it happens, the motorist was already a suspect in a murder investigation, and police have already obtained a warrant to search his basement. They execute the warrant and discover the body. Must the body be excluded as evidence?
No. Because police had already obtained the search warrant independently of the unlawful act, the body was discovered independent of the unlawful act. So it does not have to be excluded.
Secondary or derivative evidence found after the constitutional violation (confession after the arrest; evidence after illegal entry, etc.)
Fruit
A constitutional violation of the 4th, 5th, or 6th amendments resulting in illegal arrest, interrogation, identification, search, or seizure.
The poisonous tree
Where causal connection between illegality and
discovery of evidence is weak.
Purged Taint
Factors to dissipate Taint:
1. Time
2. length of causal chain
3. exercise of free will (Miranda alone is not enough)
4. flagrancy of violation
5. nature of evidence
Murray v. U.S.:
Facts: Defendants were being tailed by federal law enforcement on suspicion of illegal drug activity. Vehicles driven by defendants were observed entering a warehouse. 20 minutes later, the vehicles left the warehouse, were stopped and were discovered to contain marijuana. The drivers were arrested. Upon learning this, other federal agents entered the warehouse without a warrant and observed several bales of marijuana. They left without disturbing anything and applied for a warrant to search the warehouse. They did not mention entering the warehouse in the warrant and did not use evidence from entering the warehouse in the warrant application.
Issue: must the evidence observed during the the unlawful entry, but not relied on for the issuance of the warrant, be excluded from defendants' trial?
Holding: No. The evidence may be admitted under the independent source doctrine.
Permits police to obtain data from a source that is isolated from the 4th Amendment violation.
Independent source doctrine
Does the method of independent discovery have to be underway prior to the 4th Amendment violation?
Apparently not. See Murray v. U.S. (permitting search so long as prior illegal search not but for cause of search.)
Court's Rationale of Murray v. U.S.:
-The purpose of the independent source doctrine is to put the police in the same, not worse, position than they would have been in if no police error had occurred.
-The Court takes a broad view of the Independent Source Doctrine, so doctrine does NOT require a separate, untainted police investigation.
-The Court says that there is not real incentive for police to enter unlawfully in future cases if they may not use information procured in an unlawful entry when applying for a warrant, therefore, there is no real harm.
Problems with the Murray v. U.S. decision:
1. Gives law enforcement incentive to lie;
2. Permits confirmatory searches
Allows admission of evidence because police would have eventually found it, notwithstanding a constitutional violation.
Inevitable Discovery Doctrine (See Nix v. Williams, holding that the confession and revealing of the location of a body that was deliberately excluded by law enforcement from an individual without counsel present did not have to be excluded under E.R. because, under the inevitable discovery doctrine, it was clear that the volunteer search teams would have discovered the body even absent the D's statements.)
What are the two exceptions to the Fruit of the Poisonous Tree Doctrine?
1. Independent Source Doctrine
2. Inevitable Discovery Doctrine
When is evidence not subject to the exclusionary rule because of the inevitable discovery doctrine?
If it is more likely than not that the evidence would have been discovered without the 4th Amendment violation, then the evidence will likely not be excluded. (preponderance of the evidence standard that state must prove)
The good-faith exception
An exception to the exclusionary rule that permits the introduction of evidence obtained in violation of the
4th Ad when officers have a
reasonable good faith belief that the search is valid.
After an extensive drug investigation, a detective prepared an application for a
search warrant. The application was reviewed
by several attorneys and then submitted to a judge, who issued the warrant. Contraband was seized pursuant to the warrant, but the trial court granted a motion to suppress on the
grounds that the affidavit supporting the warrant
did not establish probable cause.
U.S. v. Leon (SCOTUS ultimately held that the evidence does not have to be excluded if law enforcement acts in reasonable reliance on a properly issued search warrant, so long as the warrant is:
-properly executed; AND
-police only search places indicated in the warrant.
"Objectively reasonable good faith" means:
-The subjective belief of the officer regarding validity of the warrant is not relevant, rather the focus is on whether a "reasonably well-trained officer" would know warrant is invalid.
-Additionally, there must be institutional good faith by executing officers, officers who obtained warrant and officers who provided information for probable cause.
Examples of not acting in good faith:
1. Affiant supplied false info or acted in reckless disregard for truth.
2. Magistrate "wholly abandoned judicial role"
3. Affidavit so lacing in probable cause to render reliance on it unreasonable
4. Warrant facially deficient in failing to describe place to be searched and items to be seized.
Rationale of good-faith exception in U.S. v. Leon:
-Social costs of the exclusionary rule outweigh any benefits when the police act in good faith or perform
minor transgressions
- Ct's. precedents have refused to extend ER beyond
the prosecution's case in chief at trial
- The ER is designed to deter police not judges
- No evidence judges need to be deterred from
violating the 4th Ad
- No evidence exclusion of evidence seized pursuant
to a warrant will deter judges
Is evidence seized during a search incident to arrest pursuant to an arrest warrant
believed valid (due to a negligent bookkeeping
error by the police) subject to the exclusionary rule when it is later determined that the warrant was void.
No. The exclusionary rule does not apply when the police reasonably believed that an arrest warrant is valid. (Herring v. U.S.)
Court's Rationale for Herring v. U.S.:
- ER should only be applied where benefits outweigh
the costs
- Police culpability here merely "isolated negligence
attenuated from the arrest"
- Police did not recklessly maintain erroneous warrant
system or knowingly make false entries
Heien v. North Carolina:
A reasonable mistake of law, like a reasonable mistake of fact, does not violate the 4th Ad. (holding that an officer's mistake in pulling over D for what he thought was a violation of law was reasonable and did not require the exclusion of evidence seized as a result of that traffic stop)
Court's Rationale of Heien v. North Carolina:
- Fourth Amendment requires police behavior to be
reasonable, not error free.
- If a reasonable mistake of fact can support reasonable suspicion, so should a reasonable mistake of law
- NC statute was subject to more than one interpretation, thus officer's conclusion that D violated statute was reasonable.
Additional important factors regarding the good-faith exception:
1. While there may be reasonable mistakes of law, officers are expected to keep up with the state of the law as best as possible.
2. The officer's state of mind may sometimes matter (for example: what if the officer intentionally closed mind to the possibility that the warrant was invalid?)
The "Voluntariness Test" for D's statements:
a method for determining whether a defendant's statement can be used in court.
Statements (for crim prosecution purposes):
any communication that tends to implicate the defendant in a crime. Include: confessions, admissions, refusals to confess, accusations of others, and non-verbal conduct
Legal theories controlling the admission of statements:
• 4th Ad. Search and Seizure (Exclusionary Rule)
• Voluntariness
• McNabb-Mallory Rule (pre-Miranda way to keep statements out)
• Massiah (Six Ad. Right to Counsel)
• Miranda
McNabb-Mallory Rule
-Extension of exclusionary rule;
-No use of statement if violation of "prompt presentment rule"
- Extended under Court's "supervisory authority"
- Does not apply to states
Massiah v. U.S.
-Statements "deliberately
elicited" from defendant after indictment may not be used at trial.
-Based on Sixth Amendment
Right to Counsel
Miranda:
Prohibits custodial statements unless Miranda warnings have been given. Based on 5th Ad right against self-incrimination.
Voluntariness Doctrine for Defendant statements:
-grew out of due process concerns (court felt that statements that were not voluntarily given were not reliable because they were often illicited using offensive methods and the absence of free will.
-Old Ground used to be:
- Unreliable
- Offensive methods (must require state action)
- Absence of free will
Are defendants deprived of due process if their convictions are based
on confessions extracted through torture?
Yes. (Brown v. Mississippi, holding that due process prohibited the introduction of evidence that 3 black men had killed a white man because the only evidence of guilt the state had was procured under extreme torture.)
Rationale of Brown v. Mississippi:
1. being tortured is not he same as being compelled to testify in an evidentiary sense.
2. A trial is a "mere pretense" where state authorities have "contrived a conviction resting solely upon confessions obtained by violence"
3. use of coerced confessions violates fundamental principles of liberty and justice.
Are voluntary statements made by a person later determined to be severely mental ill required to be excluded from trial?
No. (Colorado v. Connelly - Court says that the determination of whether a statement is made under free will is not the correct test for determining the voluntariness of a statement, but instead whether law enforcement officers used coercive methods to compel the statement. In so doing, the court essentially eliminates the previously held voluntariness factors (unreliability, offensive methods, and absence of free will) to simply whether offensive methods were used.
Modern test for voluntariness of a statement:
a statement is not voluntary if it is procured from offensive methods by law enforcement (which requires state action).
Spano v. New York
Police brought in a suspect's childhood friend (who was in the police academy) to manipulate him into confessing. They also questioned the suspect for hours without a break. The court determined that the methods were offensive and overly coercive, making them involuntary. Therefore the conviction could not stand.
Mincey v. Arizona
Defendant was involved in a shootout with a police officer in which the officer died and the suspect was severely injured. The defendant was taken to the hospital for treatment, then told he was under arrest and given Miranda warnings. A detective then began interrogating him. At the time of the interrogation, the defendant was in pain and under the influence of multiple medications. He was also isolated in a hospital and completely unable to speak, which the officer was aware of. The Court held that the admission of the statements through this interrogation was a violation of the Defendant's right against self-incrimination.
Why is the Mincey confession so important?
Statements made by the defendant after his Miranda warnings have been given can be used to impeach the Defendant should he choose to take the stand. However, if it is determined that the Defendant's statements may not come in for any reason.
Due process requires that the statements obtained from petitioner in the hospital not be used in any way against him at his trial where it is apparent from the record that they statements were not "the product of his free and rational choice".
Mincey v. Arizona
Factors to determine if a statement is voluntary (offensive methods not used):
- Force
- Threats
- Promises of leniency
- Length of detention
- Deprivations
- Location of interrogation
- Time of day
- Incommunicado
- Drugs/alcohol
- Mental illness (but see, Colorado v. Connelly)
- Age
- Limited intellect
- Tricks (rarely will deception, standing alone, be sufficient to render a confession involuntary).
How do we analyze whether a statement was voluntary?
Totality of the circumstances test using the factors to determine voluntariness.
3 approaches courts use when promises of leniency are used by police officers to procure a statement:
1. promises of leniency always render a statement involuntary.
2. promises of leniency will only render a statement involuntary when statement made in express exchange for an explicit promise.
3. promise must be of character to cause a reasonable person to speak untruthfully to render statement involuntary.
*generally speaking, words of comfort will not render a confession involuntary.
Procedure to prove a statement is voluntary:
- State has burden to show a statement was voluntary by
preponderance of evidence
- Mixed question of law & fact
- Judge makes factual findings which are entitled to deferential review
-Double hurdle: jury can make independent finding of voluntariness at trial
Evidentiary standard to determine if a statement is involuntary:
Defense must prove:
1. Evidence that statement was coerced and the level of coercion must be sufficient to overcome the will of a reasonable person in
the suspects situation
2. The coercion must be the result of state action.
Problems with Voluntariness standard:
-No guide to police because the test is governed by defendents'
characteristics
- very difficult for defendant's to prove that their statement was involuntary.
- Police "always win swearing contest"
-Case-by-case analysis creates backlog
-Courts need broad device to stop bad confessions which this standard does not provide.
Wrongful conviction cases:
1. Peter Reilly case: 1973 (Reilly,then 18, admitted to killing mother after
being repeatedly told "you don't remember doing it." Conviction overturned in 1976.)
2. Christopher Ochoa: 1989 (Confessed to avoid a death sentence. Served 12 years for killing a Texas woman before exonerated by DNA.)
3. Phoenix Temple case: 1991 (Four high school boys confessed to slaying 9 Buddhist monks. After confession, police sought testimony of two other teens to use against the original four, although ballistic evidence pointed to these two. Original four were convicted, but
ultimately released and received settlement of 2.8 million dollars each.
*about 25% of wrongful conviction cases are based on false confessions.
Prosecution may not use statements stemming from the custodial interrogation of the defendant unless the defendant is provided adequate warnings prior to making any statement.
Miranda v. Arixona
What are the Miranda warnings?
1. Right to silence
2. Statements will be used against you
3. Right to an attorney
4. Right to be appointed counsel if you can't afford one.
Miranda warnings apply only to ____________________________________.
Custodial interrogations
When must questioning stop after Miranda?
1. Suspect expresses that they wish to remain silent (by either explicitly stating that or by not speaking).
2. Suspect wishes to speak to an attorney
Ways Miranda can be restricted:
1. Limit when the warning is necessary.
2. Limit consequence of failure to warn.
What is the rationale behind Miranda warnings?
Without warnings and the requirement of counsel, then 5th Amendment right is just an "empty formality". Having the right means nothing if you don't know about it.
-It doesn't necessarily mean that this is the only way to ensure the 5th amendment rights. Under Miranda, States and Congress have the freedom to do any number of things that would ensure the effective ways of protecting the individual. However, Miranda remains the floor.
-Warning "indispensable" to overcoming pressures
of interrogation & insuring suspect free to exercise privilege.
Does a statement given after Miranda warnings are issued mean that the statement was voluntary?
No these are two separate issues. After Miranda statements still need to be analyzed for voluntariness using the voluntariness factors.
What interrogation techniques is the Court in Miranda reviewing?
Incommunicado interrogations
Does harmfulness of Incommunicado tactics concern court in Miranda?
Yes, the Court is concerned with actual and partial compulsion by incommunicado interrogations.
What is custody for Miranda purposes?
Formal arrest (deprived of freedom of action in any significant way).
If a suspect voluntarily goes to the police station, is it custody?
No. No Miranda warnings required.
Is a routine traffic stop a situation in which the driver/passengers are in custody?
No. Suspects are not deprived of freedom of action in a significant way during routine traffic stops (because they are brief and public). Therefore, anything said during a traffic stop is not a violation of Miranda if no warnings are given. (Berkemer v. McCarty, holding no Miranda violation when the suspect admitted to drinking during a traffic stop.)
What is the standard of review for custody?
Custody is a mixed question of law and fact allowing independent review by the federal habeus court. There are two steps required:
1. Factual Step: court must first determine the circumstances surrounding the interrogation.
2. Legal step: Given those circumstances, court must determine whether a reasonable person would have felt she was not at liberty to terminate the interrogation or to leave.
Suspect drove to state troopers office believing he was to identify the belongings of his deceased wife. Suspect was interrogated for two hours by two state troopers. Suspect was told he was free to leave, but he was also told the troopers believed he killed his wife and that warrants had been secured to search his truck and home. He was not read Miranda rights. Eventually suspect confessed to the murder.
Thomson v. Keohane (eventually the case was remanded after it was determined that whether a suspect is in custody is a mixed question of law and fact allowing for independent review. When the case finally went back to the district court, it held that D was not in custody when he made the confession and the conviction stood)
Failure to consider age did not render a state court decision to admit a confession without Miranda because there were several factors that supported the conclusion that D was not in custody.
Yarborough v. Alvarado (holding that the confession of a 17 year-old was not made while in a custodial interrogation requiring Miranda warnings).
Suspect (who was a minor) was removed from class by a uniformed
officer and escorted to a school interview room. He was questioned about a burglary in the room. Two school administrators and two police officers were present during the questioning. Suspect was not given Miranda, nor was his legal
guardian notified. Suspect gave a written statement admitting his involvement in then crime. Is the age of a child a factor in determining whether he or she is in custody for Miranda purposes?
Yes. If age is known to officer or reasonably apparent it may be included in custody analysis, though it is not determinative. (J.D.B. v. North Carolina)
Court's rationale of J.D.B. v. North Carolina:
- A reasonable child may feel pressured when a reasonable adult would not
- Court has frequently observed that children are emotionally and intellectually different than adults
- The limitations of childhood are objective facts that requires no speculation from the officer
How do we determine if someone is in custody for Miranda purposes?
An objective totality of the circumstances test. Essentially, the voluntariness factors plus the "Is it a seizure" factors (physical factors, submission to authority, whether free to leave, whether can ignore police presence) = the "is it custody" factors.
Is a seizure the same as a custody?
No. However, while traffic stop is not "custody" a Terry stop may be.
After a picture identification by the victim of a robbery, suspect was arrested by police. Suspect was unarmed when arrested. Suspect was advised of his Miranda rights and subsequently requested to speak with a lawyer. While escorting Suspect to the station in a police car, three officers began discussing the shotgun involved in the robbery. One of the officers commented that there was a school for handicapped children in the area and that if one of the students found the weapon he might injure himself. Suspect then interrupted and told the officers to turn the car around so he could show them where the gun was located. Did the "interrogation" en route to the police station violate suspect's Miranda rights?
No. Miranda warnings apply to express questioning or it's functional equivalent. (Rhode Island v. Innis)
Functional equivalent of questioning test:
Whether police should know its reasonably likely to elicit an incriminating response.
While being held in jail, Defendant freely confessed to committing a murder to an undercover police officer who was posing as another inmate. Did the undercover police officer violate the accused's Miranda rights as protected by the 5th Amendment?
No. Illinois v. Perkins, holding that conversations between suspects and undercover officers are not afforded Miranda protection since they are not done in a "police-dominated atmosphere" where compulsion to confess is present.
-"The essential ingredients of a 'police-dominated
atmosphere' and compulsion are not present when an
incarcerated person speaks freely to someone whom he
believes to be a fellow inmate."
-"Ploys to mislead a suspect or lull him into a false sense
of security that do not rise to the level of compulsion or
coercion to speak are not within Miranda's concerns."
D was convicted of second degree murder for the death of 17 -year-old son, who died in a fire set in the mobile home. Several days after the fire, D was interrogated by a police officer. The officer initially withheld her Miranda warnings, hoping to get a confession from her first ("question-first interrogation"). Once D had confessed, the officer took a short break from questioning, then read her her Miranda rights and resumed questioning her after she waived those rights. He prompted her to restate the confession that she had made earlier. Based on this second, Mirandized confession, D was convicted. She appealed, charging that the officer's intentional use of an un-Mirandized interrogation to get the initial confession made the later confession, though it occurred after she had waived her Miranda rights, inadmissible. The prosecution cited Oregon v. Elstad to argue that an initial, un-Mirandized confession did not make a defendant incapable of voluntarily waiving her Miranda rights and confessing later.
Held: the confession was a Miranda violation. (Missouri v. Seibert)
-The question first, warn later is prohibited when:
1. Two step technique is deliberate
2. Second interrogation is close in time and in content.
Allowed police to "cure" Miranda violation by giving Miranda later, opening the door to "question
first, warn later" tactics taht were later condemned in Seibert.
- Majority held violation of Miranda should not have same consequences as a constitutional
violation
Oregan v. Elstad (Professor Nunn refers to this as the "cat out of the bag" case).
Does the fruits doctrine apply to statements made in violation of Miranda?
No. Physical evidence may be used per Pantane and statements may be used if Miranda given later and statement repeated (Elstad still good law)
-Statements may be used for impeachment
- Information may have tactical value
Does Miranda dictate a specific wording of the warning?
No. (Duckworth and Prystock)
Does the failure to provide explicit advice of right to presence of counsel during questioning invalidate Miranda warnings that advise both a) right to talk to a lawyer "before questioning" and b) the right to consult a lawyer "at any time during the questioning?"
No. While Miranda requires that a suspect "be warned prior to any questioning" and "that he has the right to presence of an attorney," it does not dictate the words in which the essential information must be conveyed. Rather, to determine whether police warnings are satisfactory, the inquiry is simply whether the warnings reasonably conveyed to a suspect his rights as required by Miranda. Warning must only, in total, gives suspect notice of rights and that he can exercise those rights at any time. (Florida v. Powell, Court held that the warnings satisfied the standard.)
Invocation of Rights:
-Happens when S asserts Miranda rights initially, or following waiver and after a statement or partial statement
-The express decision not to
waive Miranda, after notice, is
sufficient to invoke Miranda
rights
-Important: What happens when
Miranda rights are used depends on
what right the defendant invokes (silence or attorney)
Waiver of rights
Happens after Miranda is given and before any statement
Invocation of right to silence:
-Police must "scrupulously honor" right to silence
- See Michigan v. Mosley (1975)
• Police may resume questioning If R to S respected for a "reasonable time" (at least two hours?) IF:
- Miranda is readministered
- Accused is interrogated about a different crime
(except in Fla.)
N.C. v. Butler
Retreated from the language and tenor of the Miranda decision.
-We used to require an explicit waiver. If you didn't waive it explicitly then you didn't waive it at all. (it used to be hard to waive) After Butler, implied waivers allowed. (considered a "presumed waiver")
Invocation of right to counsel:
When the right to counsel is invoked, all questioning must cease until:
- An attorney is provided, or
- The accused initiates further
questioning
- See Edwards v. Arizona (1981)

Invocation must be specific
-Request for probation officer or others is insufficient
-Request for counsel before signing a written statement does not invalidate oral statement.
-Must be made at the time of interrogation.
-You MUST say the talismanic phrase, "I want a lawyer".
D lost a game of pool and a $30 wager V who refused to pay, and was later found behind the pool club beaten to death with a pool cue. Law enforcement questioned D after finding a bloodstain of one of the pool cues D owned. Before questioning, D waived his rights to remain silent and to counsel both orally and in writing. About an hour and a half into questioning, D said, "Maybe I should talk to a lawyer." The interviewing agents attempted to clarify the statement and reminded D he could remain silent and/or speak to counsel, but Davis said, "No, I don't want a lawyer." Questioning continued for another hour before D said, "I think I want a lawyer before I say anything else." At this point questioning ceased.
At trial, D was convicted on one count of murder. D appealed, arguing that the investigators violated his right to counsel, as laid out in Evans v. Arizona, when they continued questioning after D indicated he "maybe" should talk to a lawyer.

When a suspect makes an ambiguous request for counsel during a custodial interrogation, must the interrogator cease questioning until the suspect is provided with counsel?
No. Request for Counsel must be
unambiguous (Davis v. U.S.) If it is unclear, officers need not
cease questioning or seek
clarification. The Court held that saying "maybe I should talk to a lawyer" was ambiguous, and therefore the right was not properly invoked.
Almeida Rule:
Florida Rule for Invocation of rt. to counsel. In Almeida v. State (1999) the Fla. Sup. Ct. distinguished
between an "ambiguous"
request and a "prefatory"
request. If a suspect asks a "clear
question concerning his or her
rights, the officer must stop the
interview and make a good faith
effort to give a simple and
straight forward answer."
Example of a prefatory request:
"What good is a lawyer going to do anyway?"
Invocation of Rt. to Counsel in Florida:
If Clear Assertion of Right:
- All questioning must cease
If Ambiguous Assertion of Right:
- Will not terminate interrogation
If Prefatory Question:
- Questioning must cease until suspect provided with
simple and direct answer
Caution
- Almeida does not provide much protection in Florida. See State v. Glatzmayer (holding that statement OK where suspect asked cops if they thought he should get a lawyer and cops responded it was his choice).
May a state prosecutor seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of arrest?
No. "use of defendant's post-arrest silence in this manner violates Due Process." (Doyle v. Ohio)
S was read Miranda rights before
interrogation, but he did not waive them orally or in writing. Officers interrogated S for almost three
hours, but S remained silent. Finally, S made a brief inculpatory statement.
-Issue: Was officer's questioning of S a failure to scrupulously honor his R to Silence? Was S's 3 hour
hour period of silence sufficient to invoke his rights?
No. (Berghuis v. Thompkins)
-Invocation of right to silence must be clear and unambiguous. Holding: No.
Rationale:
- Suspects must invoke right to counsel unambiguously so there is no reason to create a different rule for right to counsel than for right to silence.
- Def made no express statement
regarding wish to remain silent
After Berghuis v. Thompkins
• Thompkins lowers standard for proving waiver for the police.
- "Mere silence" can now prove waiver.
• Purpose of Miranda no longer to provide protection from compulsion, but notice.
• Thompkins raises standard for invocation of rights for suspects.
-But See Salinas v. Texas, when SCOTUS held that a defendant's silence during portion of voluntary questioning did not invoke the right to silence.
"We now hold that 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."
Edwards v. Arizona
Edwards v. Arizona holding:
once a suspect asserts right to counsel, police may not question her again without counsel present, unless suspect initiates further communication, the waives the re-warning.
When does the right to counsel attach?
When a suspect is formally charged.
S at first refuses to waive his rights, but later agrees and signs three forms acknowledging that he understood his right to an attorney and waived that right. After questioning, he also signed three written statements admitting the murder. Simultaneously an unbeknownst to the suspect, the suspect's sister called the PD's office and asked to have someone represent her brother. A PD called the police station to contact suspect but was told that suspect was unavailable and would not be questioned until the next day. The police did not inform the suspect that an attorney was attempting to contact him. Was the right to counsel violated?
No. (Moran v. Burbine). Why?
-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.
- Whether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent's election to abandon his rights
Invocation of the right to counsel and right to remain silent does not last forever; must be reasserted after 14 days to be effective.
Maryland v. Shatzer
Maryland v. Shatzer holding
1. Edwards' protection from badging lasts no longer than 14 days, for suspects who have been released from pretrial custody and returned to their normal life
2. Suspects who remain in pretrial detention remain protected from badgering under Edwards rule.
Waiver of any Miranda rights must be:
1. Voluntary (free of coercion); meaning the accused "cannot be threatened, tricked, or cajoled; AND
2. Intelligent (informed); suspect must understand warnings and consequences of speaking (subjective test base on individual suspect); Police need not inform suspect that his attorney is trying to reach him (Moran v. Burbine)
How is waiver determined?
Totality of Circumstances test (Berghuis v. Thompkins)
How far do the Edwards protections of right to counsel go?
A suspect who invokes the right to counsel cannot be questioned unless:
1. An attorney is provided; OR
2. The suspect initiates re-interrogation, or "opens up a more generalized discussion relating... to the investigation"
• See OR v. Bradshaw(Holding that after rt. to counsel was invoked, suspect reinstated questioning by asking, "What is going to happen to me now?")
**This protection from interrogation only lasts only 14 days before it must be reinstated. (See Maryland v. Shatzer)
How does the exclusionary rule apply to custodial interrogations?
ER only prohibits only during state's case in chief:
-statements made by the defendant while the defendant was in custody and being interrogated
-IF, prior to interrogation the defendant was not informed of her rights to remain silent and to the assistance of counsel, and of the
consequences of waiving those rights; OR
-if, having been informed of those rights and having invoked them, the statements were produced through police-initiated interrogation.
What is outside the exclusionary rule in regards to custodial interrogations?
1. Statements used to convict others
2. Statements used in sentencing
3. Statements used for impeachment
4. Physical evidence resulting from Miranda violations
**this broad power to the police was a result political opposition to crime in the 1968 Omnibus Crime Bill
S.Ct. ruled that Miranda rights were not constitutional rights in themselves but prophylactic rules to protect the 5th Ad. Witnesses statements are admissible because they are voluntary and reliable.
Michigan v. Tucker
A rape suspect was captured in grocery store and asked "where is the gun"? Miranda warnings were not given. S responded "the gun is
over there". Can the statement about the gun come in even though the S was in custody but not given Miranda warnings?
Yes, when there is an objective concern for public safety. (New York v. Quarles)
**the availability of the public safety exception does not depend upon the motivation of the individual officers involved.
"The Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination
Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of
the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context."
Patane v. U.S.
Patane Rule
Physical evidence found as a result of a suspect's un-Mirandized but voluntary statement is admissible. (U.S. v. Patane)
Fruits of Miranda
Under Elstad:
- Confessions are not fruit unless Seibert applies (question first warn later practices).
• Under Pantane
- Physical evidence is not fruit
• Under Elstad & Pantane
- Witnesses & Witness testimony are not fruit
If a defendant takes the stand at trial and gives a different account than the statement given to the police, may the prosecution cross-examine him on this point if the statement previously given was a Miranda violation?
Yes. Prosecution may use a statement obtained in violation of Miranda to impeach a defendant's testimony if he takes the stand at trial. (Harris v. N.Y.)
Since Miranda violation statements can be used for impeachment purposes, can we use statements that have been made in an involuntary way?
No. Involuntary statements cannot be used for impeachment purposes, (Mincey v. Arizona) Court makes a clear distinction between Harris (Miranda statements) and Mincey (involuntary statements) for purposes of impeachment.
Can the prosecution impeach a defense witness (not the defendant) with contradictory statements that the defendant made if those statements were a Miranda violation?
No. (James v. Illinois) Rationale: Would have a chilling effect on defense witness testimony.
Defendant was indicted for a drug offence. He retained an attorney, plead not guilty and was released on bail. A government agent surreptitiously recorded defendant's conversation with his co-defendant, during which def made and incriminating statements. The statement was used at trial. Was the use of the defendant's statement a violation of the defendant's right to counsel?
Yes. Massiah v. U.S. The 6th Amendment right to counsel attaches once formal charges/proceedings have begin (formal charge, arraignment, indictment, information, or preliminary hearing.) In order to ensure meaningful and effective representation at trial, the 6th Amendment protects the defendant at all critical stages pre-trial.
Had the right to counsel attached in the "Christian Burial case" Brewer v. Williams?
Yes. Judicial proceedings had begun in a different city and right to counsel had attached when the statement was made.
- Statement was "deliberately elicited" through questioning by the police despite the fact that Defendant did not waive the right to counsel.
Fellers v. Unites States
Law enforcement may not deliberately elicit incriminating information from a defendant after an indictment and in the absence of a lawyer.
Defendant is impeached at trial with a statement made in jail in response to coaxing from informant in his cell. Can the statement obtained in violation of the right to counsel be used for impeachment?
Yes, but only to impeach. (Kansas v. Ventris). Why?
-Justified by the need to prevent perjury and to assure the integrity of the trial process
- Little deterrence gained by not allowing impeachment use
When does the right to counsel attach in Florida?
- Filing of indictment or information
- As soon as feasible after custodial
restraint
- At first appearance
Brewer v. Williams subjective test:
After right to counsel attaches, Gov't cannot engage in conduct with purpose of obtain incriminating
information or with knowledge that
incriminating information likely to be
obtained.
A government agent who passively listens to statements made by formally charged defendant and conveys it to police does not violate the 6th Ad., but they cannot use undercover agents to "deliberately elicit" incriminating statements regarding that "specific offense".
Kuhlman v. Wilson
If the right to counsel has attached is it invoked automatically?
No. Must be specifically invoked.
Right to Counsel is ________________________.
Charge specific. Police may interrogate on additional charges that the suspect has not invoked the right to counsel on. Charges differ based on "different elements test" (Under Blockburger each charge must have a different element than the other one. Is a charge a lesser included? If so then they are the same charge.)
Does the Massiah Rule stop police badgering?
No.
How can suspects be identified?
-In-Court Identification ("Is the person you described in this courtroom today?")
-Out-of-Court Identification (Line-ups, "show ups," "cold shows," photographs)
Problems with eyewitnesses:
Public (and juries) perceive eyewitnesses as reliable and they are often the primary factor in conviction. However, they are not very reliable at all.
- S. Ct. recognizes this in U.S. v. Wade
- Experts go further than S.Ct
- Chief cause of wrongful conviction is misidentification (75-80%).
What do experts say about eyewitness testimony?
• No original pristine memory
• Unconscious transference exists
• Effect of post event information is substantial
• Biased questioning will effect outcome
• Bad acts = bad persons presumption
• Witness confidence doesn't matter
Grounds for suppression of an identification:
-Fourth Amendment (Fruits)
-Sixth Amendment-Right to
Counsel
- Fifth Amendment-Due Process
Suspect was indicted for bank robbery. Without providing notice to his attorney, Suspect placed in
lineup and ID'ed by witnesses. Suspect was later ID'ed in court where testimony about prior lineup was given, as well. Was Suspect's right to counsel violated by the ID
procedure?
Yes. An ID lineup is a critical pre-trial stage in which the suspect who has invoked an attorney has a right to counsel. (U.S. v. Wade)
Rational for Wade:
-Danger of suggestion
-Reluctance of W to admit mistakes
-Possible vengeful or spiteful motives
Since lineups are a critical stage of the trial:
-No post-charge lineups may be held in absence of counsel
- ID evidence from line up without counsel must be suppressed
- Whether other ID evidence from Witness present at lineup can be admitted depends on whether state
can establish an "independent source"
Is counsel required for a pre-indictment lineup or a photographic lineup?
No. Kirby v. Illinois, U.S. v. Ash
Suspect in a murder and brutal assault was brought to the hospital room of the surviving victim in police custody for ID. Was the procedure so unnecessarily suggestive that it violated suspect's due process?
No. (Stovall v. Denno). Although identification procedure was
suggestive, such procedures may be used when, in totality of circumstances, the benefit outweighs harm.
- Here, the witness was on deathbed and the potential harm was that a lack of ID would set this perpetrator free.
How do you suppress a witness ID on Due process grounds.
To suppress ID on due process grounds requires a showing of both suggestibility AND unreliability. If a suggestive procedure violation is made, it still might not be a Due Process violation if the information is reliable. (Manson v. Braithewaite)
Factors for suggestibility in witness IDs
- Single suspect
- Indicia of custody
- Multiple Witnesses viewing ID procedure
- Directing Witness attention to a particular suspect
- Statement of suspect's guilt by law enforfement
- Making suspect stand out in some way
Factors for reliability in witness IDs
- Totality of circumstances
- Opportunity to view the suspect
- Witness's degree of attention (at time of crime)
- Accuracy of prior description, if any
- Level of certainty of the witness
- Length of time between crime and confrontation
When approached by an officer investigating a car burglary, W gave a general description of the S.
When pressed for a more specific description, the W pointed out the window and stated the S was the
man standing next to a police officer. Later the W could not ID the S from a group of photos. Does due process prohibit an identification when the ID was made under suggestive conditions that were mere coincidence and not arranged by the police?
No. (Perry v. New Hampshire); The due process test does not apply to ID procedures that are not the result of state action. If no state action is present than the court need not apply first step of due process test to determine if the conduct is suggestive.
Court's Rationale in Perry v. New Hampshire:
-The ID procedures in Brathwaite and Wade were compelled by the police.
- Primary aim of Due Process test is to deter suggestive police conduct.
- Many factors undermine trustworthiness of eyewitness ID and expanding Due Process beyond police conduct would open a flood of litigation.
- Although "reliability is the linchpin" of the Due Process analysis, unreliability alone not enough to render trial fundamentally unfair.
- Other safeguards can be used to prevent unreliable Witness testimony from influencing trial
(e.g., evidence rules, jury instructions).
THIS SET IS OFTEN IN FOLDERS WITH...