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Terms in this set (144)
What Constitutes a Search?
1. Government action+ invasion of reasonable expectation of privacy.
2. Katz Reasonable expectation of privacy determined by on weighing
-individual exhibiting "an actual (subjective) expectation of privacy and,
-society's willingess to recognize that expectation as 'reasonable.'"
2. Jones: Trespass by itself (like with GPS monitoring) can be a search.
3. However Trespass not necessary or sufficient for existence of search (katz)
Hester v US
4th amdt doesnt apply to open feilds because of common law distinction between home and land sourounging
CATIGORICAL RULE for open fields
Oliver v US
1. CATIGORICAL RULE for open fields: police can search all land in open field without any warrant of any level lf suspicion; the only restraint on this ability are rules imposed by police management
2. 4th amendment applies protects search of curtilage (area immediately adjacent to home)
3. Can't claim privacy for open fields, even when you put up signs and fences because open fields are not intended for the "intimate activities" protected by 4th amendment
Factors to weigh for what constitutes curtilage
US v Dunn
a. Proximity to home
b. Area included within an enclosure surrounding home
c. Nature of uses to which area is put
d. Steps resident has taken to protect area from observation
Generally, aerial observation does not constitute a search because areas exposed to the public have no expectation of privacy. (Ciralolo). By extension, areal photos do not general constitute a search if taken from navigable airspace. (Dow Chemical). An areal search may become impermissible if:
1. FAA regulations are being broken;
2. The property itself is disturbed.
a. Physical disturbance, wind gusts, noise, or threat of injury.
3. "Intimate" things were found.
Individuals contesting aerial observation may claim it was a search based on:
a. Whether intimate details within curtilage observed
(But how is this proven?)
b. Whether aerial observation common
c. Whether defendant offered evidence to prove he took reasonable steps to conceal (Flordia v. Riley)
Kyllo v US
1. Thermal imaging constitutes search
2. Sense enhancing technology that can get information about interior of home that otherwise couldn't be obtained without physical intrusion is a search
a.Emphasis on sanctity of home and fact that technology is not in general public use
California v Greenwood
Going through trash is not a search
No reasonable expectation in what person willingly chooses to discard in public view
US v Jeffers
going through hotel room is a search because Occupants have same expectation of privacy; emphasizes sanctity of living facility
i. Simple observation of public behavior is not a search because a person traveling on "public thoroughfares" has no reasonable expectation of privacy in his or her movements. Knotts
ii. However, using monitoring device, like a beeper, to track movements is. US V Karo
US v Karo
Placing beeper on car is a search
US v White
No expectation of privacy for information shared with third party
Information disclosed to informant wearing a wire is not a search so long as conversation simultaneously recorded or transmitted
Smith v Maryland
1. Pen registry that records numbers dialed not search
2. No reasonable expectation of privacy for information given to third party phone companies
3. Basis for later NSA metadata collection
4. US code outlines provisions for obtaining pen registry and allows 48 hour emergency period without warrant
California Banker Association v Shultz
Bank records not searches because bank is third party so no expectation of privacy
1. Dog sniff at traffic stop NOT a search so long as it doesn't unreasonably delay lawful stop; no level of reasonable suspicion is necessary for sniff at stop. Illinois v Cabellas
2. Dog sniff of luggage is not a search because it merely detects presence of narcotics. US v Place
3. Dog sniff within the curtilage of a home DOES consitute a search. Flordia v Jardines
4. Positive identification by sniff during routine traffic stop may be basis of probable cause to search car based on totality of circumstances, which may include the specific dog's training and accuracey in detecting narcotics. Flordia v Harris
General Elements of probable cause
i."the facts and circumstances before the officer are such to warrant a man of prudence and caution in believing that the offense has been committed."
ii. Standard is more than reasonable suspicion but less than preponderance of the evidence
iii. Evaluated in the totality of the circumstances.
iv. Non-criminal, typically innocent behavior can give rise to probable cause.
v. Hearsay statements can be used. Draper
vi. Objective standard:
-The question is whether a reasonable officer would have found probable cause under the circumstances. Pringle
-The officer's actual or subjective motivations or impressions are irrelevant.
vii. There must be particularized probable cause for each search or seizure.Pringle
1. For tips to serve as basis for probable cause, must considerthe basis for knowledge, credibility, specificity, reliability, past honesty, police corroboration. Ill. v Gates
2. Anonymous tip that contains no uniquely identifiable information not sufficient for Terry Stop. Flordia v JL
3. Generally, unverified tip must be corroborated by police work to provide the reasonable suspicion necessary for Terry top. Alabama v White
4. However, Unverified tips can be sufficient to establish reasonable suspicion when it can demonstrate sufficient indicia of reliability. Ex 911 calls. Naverette V. California
When v US
1. Probable cause basis is an objective standard so prextexual stops do not violate 4th amendment so long as officer would have had objectively reasonable basis for stop
2. To avoid police abusing this privilege, standard for probable cause in traffic stops is whether police officer acting reasonably would have initiated the stop
Groh v. Ramirez
a. Probable cause
b. supported by oath/ affirmation
c. Description of scope of the search (people, places, things, time)
d. Type of evidence sought
AND must be issued by nuetral and detached magistrate. Coolidge
Anderson v Maryland
1. warrant May list types of documents sought without being general warrant
2. Permissible to search documents outside of warrant so long as its minimal and only to find relevant documents
1. Anticipatory warrants permissible if
-Contraband/ evidence/ fugitive will be on the described premises
-When the warrant is expected
2. Looks to the likelihood that the condition will occur
Fed. R. Crim. Pro. 41
Unless otherwise authorized, warrant must be executed during daytime hours between 6am-10pm
a. People that happen to be present in primes subject to search cannot be searched just by virtue of being there
Treatment of Third Party's during search
Michigan v Summers
a. Those present in residence during warrant execution may be detained in order to
i. Prevent flight when incriminating evidence found
ii. Minimize risk to police
iii. Help answer police questions/ open locked items
Ybarra v Illinois
b. People that happen to be present in primes subject to search cannot be searched just by virtue of being there
Muehler v Menna
c. Reasonable force may be used to restrain occupants of premises during the duration of the search butExcessive restraint and confinement longer than duration of the search may thus not be reasonable
d. Mere police questioning during search does not constitute a seizure
Bailey v Us
e. During the search of a premises, occupants of premise, who may be reasonably detained, are individuals in the immediate vicinity of the lawful limits of the lot or sightline of the officer
Exception to Knock and Announce
Police MUST knock and announce absent exigent circumstances (Wilson)
Richards v Wisconsin
a. No categorical acceptation to knock and announce for drug cases
b. Necessary to consider facts of each case to determine whether exception is justified
c. Exception is justified when cops have reasonable suspicion (low standard) that knock and announce would be dangerous, futile, inhibit investigation, cause evidence destruction
d. Even if magistrate does not issue a no know warrant, standard is to look to circumstances at time of warrant execution to determine if no know is justifiable, despite warratn
Knock and Announce Execution Requirements
Banks v US
a. Typically, only need to wait 15-30 seconds after knocking to break down door
b. Time varies depending on size of location and likelihood of evidence destruction
c. Exercised during "daytime" hours per Fed. R. Crim. Pro. 41
HOWEVER, know and announce may be excluded, despite not receiving speific warrant, if the sitatuations as the time of execution justify not knocking and announcing. This determination is made by officers who execute warrant
Maryland v Garrison
Good faith exception to violation of warrant execution
search is permissible if the officers reasonably go beyond the scope of the warrant and stop searching once they realize they went outside the scope of the warrant
No excpetion for bad faith conduct
Probably Cause Required Warrant exceptions
a. Plain view
b. Arrest in public
c. Auto searches, including search of containers, search
d. Exigent circumstances
i.hot pursuit of felon
ii. imminent destruction of evidence
iii. danger to police or others from persons inside dwelling
Probable Cause NOT required warrant exceptions
a. Search incident to lawful arrest
b. Inventory Searches
e. Protective Sweeps
f. Check Points
Hot pursuit search only as broad as may be reasonably necessary to prevent the suspect at large from escaping/resisting
Police cannot enter a home without a warrant to make a routine arrest
Payton v NY
Kentucky v King
Police may enter without warrant to prevent evidence distraction when they did not create the exigency by engaging or threatening to engage in conduct that violates the 4th amendment
Limitations on Exigent Circumstance
1) Welsh v Wisconsin: No exigent circumstances exist to enter in order to arrest someone for a non jailable offense
2)Mincey v Arizona: Fact that serious felony occurred at the location does not, by itself, allow police to enter without a warrant
Mincey v Arizona
Fact that serious felony occurred at the location does not, by itself, allow police to enter without a warrant in exigent circumstance situation
Plain view warrant exception:
No 4th Amdt violation if evidence found within scope of lawful search for something else
Arizona v Hicks
Items in plain view must be APPARENT contraband, thus Violation for cops to move stereo they suspected was stolen to check barcode
Plain view warrant exception
i. Cops can use all senses: plain feel, sight, smell, taste, hearing while executing warrant
ii. If reasonable suspicion to stop, then cops can feel and retrieve item if immediately apparent it is contraband or if they have probably cause to believe it is contraband
Carroll v US
Autombile exception to warrant requirement
1. Cars and other movable vehicles can be searched without a warrant if there is probable cause arising out of circumstances known to officer
2. Mobility of vehicles necessitates warrantless entry in order to prevent fleeing
Chambers v Maroney
Warrantless search of cars acceptable even when car not likely to move or has been impounded
California v Carney
1. Cars and other movable vehicles can be searched without a warrant if there is probable cause arising out of circumstances known to officer
2. Lower standard justified based on movability of vehicles and lower expectation of privacy
3. To determine whether motor vehicle is being used as a residence, and thus is not subject to automobile exception, consider
a. Whether vehicle readily mobile or on blocks
b. Whether vehicle is licensed
c. Whether it is connected to utilities
d. Whether it has convenient access to a public road
e. Whether reasonable observer would think its being used as a home
Cardwell v Lewis
1. Where defendant parked car in public lot and was later taken into custody, warrant not required to search vehicle so long as police have probable cause to believe car contains contraband.
2. Because vehicles are mobile, there is an inherent exigency
3. a lesser expectation of privacy in automobiles
Searches of containers in Cars
California v Acevedo:
Searches of container in vehicle warrant exception
1. When probable cause justifies search of vehicle, search permissible for all items in vehicle
2. No warrant needed for container if scope of probable cause includes container
3. Scope of probable cause may apply to all containers (Wyoming v Houghton)
Wyoming v Houghton
Searches of container in vehicle warrant exception
For search of package within car, there is no distinction among packages or containers based on ownership; probable cause to search for contraband extends to all packages and belongings in the car
US v Chadwick
Car exception does not apply to luggage because luggage is not mobile so it can be detained while warrant obtained
When police lawfully stop vehicle they may order drive to exit
Maryland v Wilson
When police stop vehicle they may order passengers to exit
Arizona v Gant
After arresting the occupant of an automobile, the police may search the interior of the auto incident to the arrest if at the time of the search:
a. The arrestee is unsecured and still may gain access to the interior of the vehicle; or
b. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
Incident to lawful arrest, cops may search person for weapons/ contraband AND areas within defendant s immediate control without any level of suspision
US v Robinson
Search incident to arrest valid for arrest of any custodial crime
Search incident to arrest Requirements
Knowles v Iowa
i. For traffic violations, if the suspect is not arrested, there can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or issuing a citation.
ii. When a citation is issued, there is less of a threat to the officer's safety than there is during an arrest, and the only evidence that needs to be preserved in such a case (e.g., evidence of the suspect's speeding or other illegal conduct) has already been found
Search of Cellphone
i. Upon lawful arrest, cops may seize cell phone but warrant is needed to go through phone
Riley v California
Illinois v Lafayette
Cops may inventory personal affects found at time of arrest
Scope of a Protective Sweep
i. When police arrest a person, they may conduct a protective sweep of the areas immediately adjoining premises without any level of suspicion
ii. Sweep may be extended beyond the area immediately adjacent to the arrest when the police have reasonable suspicion to believe that the extended area may harbor dangerous third parties
-Sweep may extend only to a cursory inspection of those places where a person may be found
iii. Evidence may be seized if in plain view during sweep
iv. Sweep may only last as long as necessary to effectuate arrest
Maryland v Buie
When is consent Voluntarily Given?
Schneckloth v Bustamonte
i. Warrantless search valid if voluntary consent given, not consent based on duress or express/implied coercion
ii. Voluntariness determined by
-Totality of circumstances (Number of cops, show of force, uniformed, time of day_
-Characteristics of individual( Age, apparent intelligence).
-Knowledge of the right to refuse consent is one factor, but is not determinative.
US v Matlock
One occupant of a residence may give consent to search if the other is not present
Georgia v Randulph
i. If both occupants of residence present, consent cannot be given in one occupant refuses
ii. No inference of superior/inferior co occupants
Illinois v Rodriguez
i. Officers may enter without a warrant based on consent from person they reasonably believe has control over the property
ii. Whether or not third party has authority is based on belief of reasonable officer in the circumstances
i. Sobriety checkpoints constitutional, even without particularized reasonable suspicion because brief interference justified based on dangers of drunk driving
i. Checkpoints for illegal drugs unconstitutional
ii. Unlike sobriety checkpoints, these checkpoints seeks to uncover evidence, not to enhance public safety
Illinois v Lindster
i. Checkpoints to gather information about crime valid
ii. No violation based on officer approaching citizen to illicit voluntary information and importance of information justified minimal intrusion
Delaware v. Prouse.
Stop not valid to check if driver licensed because minimal impact on highway safety
General Characteristics of Seizure
Look to totality of circumstances to determine whether police conduct would cause a reasonable person to believe that they were not free to go
Seizure only occurs when individual submits to show of authority or physical force. May include
1. Threatening presence of the officers.
2. The display of a weapon by an officer.
3. Some physical touching of the person by an officer.
4. The use of language or tone of voice indicating that compliance with the officer's request might be compelled.
US v Watson
1. General rule is that warrant based on probable cause necessary to effectuate arrest
2. No arrest warrant necessary if person in public place and probable cause to believe that a felony was committed
US v Mendenhall
1. Seizure occurs if reasonable person under the circumstances would believe that they were not free to go
2. Seizure occurs by physical force or show of authority
3. Not necessary to tell respondent that she was free to go
Seizures on Buses
Florida v Bostick: Refinement of Mendenhall "free to leave" language for seizures on context of bus
2. Seizure occurs when reasonable person in the situation would have felt free to decline officer's requests to search or to otherwise terminate the encounter
Brendlin v Cali
When officer makes traffic stop, both the driver and the passengers are seized
California v Hodari
1. No level of suspicion necessary for police to show authority
2. Show of authority alone does not constitute seizure
US v Prayton
"reasonable person" test to decline search is objective and presupposes innocence
Atwater v City of Lago Vista
1. 4th amendment permits warrantless arrest for any criminal offense if officer has probably cause to believe that offense was committed
2. Some states prohibit officers for initiating custodial arrest for certain crimes
3. Supreme court has not addressed whether offense must occure in officer's presence, but case law suggests that it must
General requirements for stop and frisk
i. Requires reasonable suspicion of criminal activity
-This is a lower standard than the probable cause necessary to institute a seizure
ii. Must be reasonable in scope and duration; only as long as is necessary to address basis for stop
Terry v Ohio
1. Stop and frisk reasonable when officer justified to believe that individual, whose suspicious activity he is investigating at close range, may be armed
2. No need to be certain perp is armed, just whether prudent officer would be justified to believe so based on circumstances; This is more than just a hunch
3. Refusal to answer officer's questions during stop not sufficient basis for arrest, but this may warrant further observation of suspect
US v Cortez
Officers can withdraw inferences from information they're trained to observe to gain reasonable suspicion necessary for Terry stop
Distinction between arrest and stop
Turns largley on location, duration (temporary and last no longer than is necessary to effectuate the purpose of the stop), show of authority employed (should be least intrusive means), surrounding cirsumstances
Dunaway v New York
Loction: Arrest has occurred if police officers take a suspect to the station for questioning
Florida v Royer
Distinction between stop and arrest turns on scope of intrusion and facts and circumstances of each case
-Investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop
-Investigative methods should be the least intrusive means reasonable available to verify officers suspicion in short time
States burden to demonstrate that the seizure it seeks to justify on basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy conditions of an investigative seizure
US v Place
Duration of detention relevant consideration to distinguish between stop and arrest
When does a Search become a Seizure?
US v Sharpe
1. No hard and fast rule for when detention become seizure
2. Reasonable stop may become unlawful detention of for excessive period of time
"frisks" of cars
Michigan v. Long
1. After ordering driver and passenger out of vehicle, officer can conduct frisk of driver/ passenger if they have reasonable belief they are armed or dangerous
2. Even when no arrest made, the officer may search the passenger compartment of the vehicle provided the search is limited to those areas in which a weapon may be placed or hidden and the officer possesses a reasonable belief that the occupant is dangerous
1. Asking for ID is not a seizure within context of Terry stop if state law criminalizes failure to identify if asked by officer
2. Disclosing name poses little risk of self-incrimination, helps officers self case, and may help suspect go
3. Self incrimination dealt with on case by case basis
Circumstances which may constitute reasonable suspicion for terry stop
US v ArvizuNo bright line rule for what constitutes reasonable suspicion to justify Terry stop, but may consider
a. totality of circumstances including officer training, location, observed behavior, etc.
b. whether reasonable suspicion particularized to specific individual
c. requires specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop or frisk.
d. Reasonable suspicion judged by an objective standard of reasonable officer in the situation
e. More than just a hunch
f. Flight (Wardlow in certain circumstances)
g. Informant tip (if there's sufficient guarantees of reliability and trustworthiness)
When fleeing from police can form reasonable suspision for Terry Stop
Ill v WardlowFeeling from police can provide reasonable suspicion for Terry stop based on totality of circumstances which may include
i. Time of day
ii. Number of people in area
iii. Character of neighborhood
iv. Whether officer uniformed
v. Way the runner is dressed
vi. Whether suspect exhibits other unusual behavior
General Application of exclusionary rule
does not apply unless there is a substantial causal connection between the illegal activity and the evidence offered at trial because no deterrence in the absence of such a causal link
Purpose of Exclusionary Rule
US v Calandra; Seeks to remedy 4th amendment violations and deter improper police conduct
Criticisms of Exclusionary rule
1. Potential for letting guilty people go free (People v Defore)
2. Scalia says it's just not necessary because
-Police are more professional now
-§ 1983 suits sufficient to remedy misconduct
WHen exlusionary rule applies
1. Most violations of the Fourth Amendment.
2. Oral statements for Miranda violations.
3. "Old fashioned" involuntariness for self-incrimination.
4. Interrogation after the exercise of the right to counsel, unless the defendant initiates contact with the police.
5. Post-initiation-of-adversarial-proceeding interrogations without counsel (assuming that there was not a voluntary waiver of the right to counsel).
6. When deterrence will outweigh social costs
7. Systematic violations of 4th amendment & bad faith conduct
When exlusionary rule does NOT apply
1. Illegal arrests of people
2. Violation of knock and announce (Hudson v Michigan)
3. Federal habeas cases
4. Good Faith Violations/ negligence (Leon)
-Reasonable reliance on outdated warrant
-Statute later replied
-Information from neighboring sheriff county
5. Miranda violations leading to discovery of witnesses or physical evidence
6. Attenuation doctrine: Evidence too far removed from initial illegality
7. Independent Source Doctrine: Cops later obtain evidence initially seen during illegal search with proper warrant that doesn't rely on what they saw during that search
8. Inevitable discovery doctrine: Evidence would have been found eventually
9. Balancing Test: deterrence benefit doesnt outweigh social cost of excluding ev
Weeks v US
Exclusionary rule applies in federal cases because 4th amendment would be meaningless without some penalty for violation
Mapp v OHio
Applies exclusionary rule to states via the 14th amendment
Herring v US
1. exlusionary rule only applies to deliberate or reckless violations of fourth amendment or those that are the result of systematic government policies
2. Doesn't apply to negligent or good faith violations
Who can raise the exclusionary rule?
1. Only those whose 4th amendment rights were violated can raise exclusionary rule, turns on whether person had reasonable expectation of privacy. Rakas v Illinois
-Can't raise just because you were aggrieved by an illegal search
2. Business visitors in a person's home cannot raise exclusionary rule because no expectation of privacy, but overnight guests may. Minnesota v Carter
No federal habeas rule for 4th amendment t claims because it would offer no deterrent effect since habeas petition to far removed from sentencing
Good faith exception to Exclusionary rule
a. Exclusionary rule does not apply if police reasonably rely on an invalid warrant to conduct search or seizure
b. This exception has been extended to warrants based on statutes that are later repealed and warrants with clerical errors
c. Strong deference to magistrate's issuing of warrant
d. Doesn't preclude exclusionary rule in cases where
i. Probable cause based on false affidavits
ii. Magistrate note neutral and detached
iii. Magistrate had no substantial basis to determine probable cause based on affidavit
US v Leon
1. exclusionary rule does not apply for evidence after illegal conduct if evidence is far enough attenuated from the conduct.
-the temporal proximity of the unconstitutional conduct and the acquisition of the evidence.
-whether any significant events have intervened.
-the purpose and flagrancy of the misconduct in question
Independent Source Doctrine
1. permits the introduction of evidence discovered initially during an illegal search if the evidence is later obtained pursuant to a warrant untainted by the initial illegality
2. Court must consider
a) was any of the information upon which the warrant was obtained derived in any way from the initial illegal entry
b)whether the decision to seek the warrant was prompted by what the officers saw during the illegal entry
i. subsequent search pursuant to a warrant will be invalidated if the officer's testimony that he would have conducted the second search without regard to the initial illegal search is implausible.
ii. officer must explain why he or she did not obtain a search warrant prior to the initial search.
Doctrine of Inevitable discovery
if the prosecution can establish that the evidence would have been inevitably discovered, the exclusionary rule does not apply because the government gains no advantage over the defendant
a. Due to inherent coercion in interrogations, cops must affirmatively inform defendants of their rights, voluntariness in not enough
b. Warnings must be given when suspect taken in to police custody or whenever suspect subject to coercive police interrogation
c. Right to remain silent, everything you say can and will be used against you, right to council, right to appointed council if you can't afford
d. Once suspect affirmatively evokes rights, all interrogations must cease
e. Government has burden to prove knowing and intelligent waiver of rights
When MIranda Applies
1) in custody 2) police interregation
Dickerson v US
Upheld the constitutionality of Miranda in spite of federal law, so confession given without Miranda warning inadmissible
Orozco v TX
Person in custody and thus entitled to Miranda warnings when arrests, even if arrest occurs in suspects home
Oregon v Mathiason
i. Person who is free to leave and who has not had their freedom of movement restricted is not in custody so no Miranda warning necessary
ii. Voluntary noncustodial situations not governed by Miranda
Minn. V Murphey
Statements made to probation officer not made while in custody
Stansbury v California
Whether person is in custody is an objective standard, thus officer's subjective and undisclosed view concerting wither peons is being interrogates is irrelevant to determine when suspect is in custody
Selenis v Texas
Person in custody but not under arrest must affirmatively assert right to stay silent, cant just stay silent to invoke right
What is interrogation
i. Interrogation refers to both express questioning and any words of actions by cops that cops should know are reasonably likely to elicit an incriminating response from the suspect
ii. In this case, no Miranda violation occurred because based on brief conversation with suspect, police would not have reasonably known that the suspect would be moved to make self-incriminating statements
Rhode Island v Innis
Miranda warnings not required to be given to suspect before he voluntarily speaks with someone he does not know is an undercover agent
Form of Miranda Warning
i. Slight deviations from general Miranda script acceptable if the warnings still convey overall message of Miranda
ii. For example, permissible to state that you have the right to a lawyer "if and when you go to court", even though this may apply that you only get lawyer if you go to trial for some
Duckworth v Eagan
Michigan v Tucker
a. In determining whether information gained in violation of Miranda can be used at trial, balance society's interest in the effective prosecution of cases with right of defendant
b. Here, knowing name of key witness outweighs defendant's rights so permissible to use witness
Oregon v Elstad
a. subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent
b. Absence of coercion undercuts twin rationales of Miranda, trustworthiness and deterrence
c. Absent deliberately coercive or improper tacit in obtaining initial statement, the mere fact that a suspect made unwarned admission does not warrant presumption of compulsion for later statement made after warning given
Missouri v Seibert
1) a second confession following warnings made after an initial "unmarandized" confession will be admissible IF
- the officers did not deliberately used a two-step strategy and (This is still governed by Elstad voluntariness consideration)
-curative measures were taken before the post-warning statement is made
2). To gauge efficacy of curative instructions consider
i. the completeness and detail of the questions and answers in first round of interrogations
ii. The overlapping content of the two statements.
iii. Importance of timing between statements
iv. continuity of police personnel
v. degree to which the interrogator's questions treated the second round as continuous with the first."
vi. Optional factor: whether warning stated that first statement could not be used
c. When two-step inquire is not deliberate, Elstad voluntariness standard still governs
a. Tangible evidence which was obtained after an unintentional violation of Miranda will likely be introduced
b. Concurrence proposes admission based on weighing probative value
c. Remaining issue: Even if bad faith violation of Miranda leads to physical evidence, how do you prove bad faith
What constitutes waiver of Miranda
NC v Butler
i. Government must prove waiver by preponderance of the evidence
ii. Defendant gets the benefits of the doubt
iii. Written waivers not necessary or sufficient
iv. Waiver must be knowingly and voluntary based on totality of circumstances after warnings are given
v. States can impose more or less exacting standards
vi. Implied waiver permissible if government proves
-Warnings were given
-Defendant understood he was giving up rights
-Defendant understood English and was coherent
Cops can re-interrogate after defendant requests lawyer if there is a break in custody for 14 days, meaning a break from interrogation
Arizonian v Roberson
Once right to counsel has been invoked, cops must cease ALL questioning, including questioning on completely unrelated matters
Edwards v Arizona
i. At any time prior to or during interrogation, the detainee may also invoke a Miranda (i.e., Fifth Amendment) right to counsel.
ii. If the detainee invokes this right, all questioning must cease until the detainee is provided with an attorney or initiates further questioning himself.
When May police resume questioning after Miranda Rights asserted?
i. Invitation by defendant; broad standard (oregon v bradshw). applies to right to counsel AND silence
ii. When cops "scrupulously honor" request to remain silent which can be determined by whether. (mosley)
-police immediately ceased questioning upon the detainee's request and did not resume
questioning for several hours;
-the detainee was rewarned of his rights; and
-questioning was limited to a crime that was not the subject of the earlier questioning.
-this only applies to write to remain silent
New York v Quarles
i. Statements obtained by police form suspects during emergency situations could be used against a suspect even if Miranda warnings to given
ii. Public safety outweighs protecting 5th amendment rights against self-incrimination
After right to remain silent invoked, cops can still ask questions:
i. that are needed for booking processing like age DOB
ii. Defendants answers to these questions can be used against him, even if previously asserted right to remain silent
PA v Muniz
Escobedo v Illinois
6th extends right to police questioning when suspect has not been formally charged
Brewer v WIlliams
Broadens definition of interrogation, in this case while defendant riding in back of cruiser
Messiah v US
6th amendment right to counsel applies once adversarial process has commenced
6th right to counsel applies to post-arrest lineups, NOT precharge or investigative lineups
WHen 6th amdt right to counsel applies
All critical stages of prosecution after adversarial process begins
1. Post-indictment lineups (Kirby)
2. Preliminary hearings.
3. Post-charge interrogations. (messiah)
5. All first appearances before a judicial officer after a formal charge is made, regardless of whether a prosecutor is present.
7. All first appeals, even first-tier discretionary appeals.
8. In felony cases (gideon) or cases with possibility of actual imprisonment(Argersinger )
When 6th Amdt right to counsel does not apply
i. Second-tier/ discretionary appeals..
ii. Parole hearings.
iii. Probation revocation hearings.
iv. Civil matters, such as habeas corpus proceedings.
v. Non-jail able offenses.
vi. Post-charge photo arrays.
vii. DNA collection
Argersinger v Hamlin
i. Right to counsel applies when defendant subject to actual imprisonment
ii. Requires judge to determine at onset of process whether imprisonment will be imposed as potential punishment, if not no lawyer is necessary
What is Actual Imprisionment?
-Must serve at least one day in jail
-Suspended sentence actual imprisonment
-Home arrest not actual imprisionmnt
Gagnon v Scarpelli
No bright line rule for right to counsel during parole or probation hearings, may be appointed on base by base basis
Strickland v Washington
Standard for ineffective assistance of counsel
a. Counsel's repetition fell below objective standard of reasonable representations
b. Resonble probablility that proceeding would have been different but for counsels errors (actual prejudice)
-A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
-A "reasonable probability" is lower than a preponderance of the evidence.
Co-representation by Counsel
It violates a defendant's Sixth Amendment right to force defense counsel to represent co-defendants over counsel's timely objection. .
When ineffectiveness of counsel presumed
1. Complete denial of counsel, either actual or constructive.
2. Counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.
3. An actual conflict of interest for counsel.
a. A defendant can prove an actual conflict of interest only by showing that:
-Defense counsel was actively representing conflicting interests; and
-The conflict adversely affected counsel's performance for the defendant.
b. The burden is on the defendant to prove conflict of interest and negative impact on counsel's performance.
c. Defendants may waive the right to conflict-free assistance if the waiver is knowing and intelligent, but the trial judge is not obliged to accept this waiver.
a. Inecffectiveness not presumed when attorney conceded guilt in capital case to hopefully avoid death penalty at sentencing
Rompilla v Beard
In effective assistance of counsel in a capital case for defense counsel not to request defenses file from prior cases that would have shown that he too suffered from mental health issues and childhood deprivations that could have been presented to jury in mitigation of his sentence
Booby v Van Hook
Failure to comply with ABA guidelines for performance of defense counsel in death penalty cases does not automatically establish a claim for ineffective assistance e council
factors to determine whether the government impermissibly interfered with the right to counsel
1. Whether the government purposely intruded into the attorney-client relationship.
2. Whether the government obtained any evidence it used at trial from the intrusion.
3. Whether the prosecutor obtained any details about eh defense's trial strategy from the intrusion; and
4. Whether the information obtained was used in any other way to the substantial detriment of the defendant.
Paying client gets to choose lawyer so long as no conflict of interest exits
Faretta v California
i. State cannot force defendant to be represented by a lawyer if defendant is competent to represent himself
ii. But defendant cant later claim ineffective assistance of counsel
iii. Suggests that court can appoint standby counsel over defendant's objection
McKaskle v Wiggins
Standby counsel cant destroy the jury's perception that the defendant is representing himself
Competency Standard for Self-Representation
i. Court may impose a heightened competency standard or a defendant who wants to self-represent
ii. Competency to self represent looks at
-whether the defendant has a rational as well as factual understanding of the proceedings against him and
- whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.
-may be competent to stand trial but not to represent himself
Indiana v Edwards
Limitations on 6th Amdt Right to counsel
-No right to be represented by a non-lawyer. Turnball
-right to counsel doesnt entitle indigent defendant to select his counsel and doesn't entitle defendant to meaningful attorney client relationship. US v Allen; Morris v Slappy
-Right to counsel does not include the right to have counsel present any evidence that the defendant wished to admit, including dishonesty or unethical conduct. Nix v Whiteside
-Government can restrict use of illegally obtained funds defentant wants to use to pay for counsel. Caplin
Ross v Moffit
No right to council on discretionary appeal to supreme courts, unless so provided instate constitution
Douglas v Cali
Right to council on first appeal, because imposing different screening mechanisms for those who can and can't pay violates equal protection
Distinguishing between stop and arrest
Turns on location, duration, scope, and individual circumstances of the case. Methods used should be least intrusive (Royer)
When are checpoints valid?
2. to Gather inforation about crime.
NOT valid to search for drugs/check for liscenses
Policy rationale behind inventory searches
SD v Opperman
1. protects cops from weapons
2. protects defendant's property
3. safegaurds cops against theft claims
Generally, what actions are NOT searches?
1. Arial views
2. Information exposed to third parties (trash, pen registries, bank statements, conversations)
3. Dog sniffs NOT in curtilage (around perimiter, luggage, during stops)
Generally, what actions consitute search?
1. Reasonable expectation of privacy+government action
2. Invasion of curtilate
3. phyiscal trespass
4. areal views that violate FAA, observe intimate activity
5. Sense enhancing technology not generally avaiable to public
6. Dog sniffs in curtilage
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Chapter 4 Definitions
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