CRIMINAL PROCEDURE -exam U.S. v. BOND softsided luggage BROWN v.

MISSISSIPPI: Three guys hung, whipped, tortured to get confession. Substantive Due Process. The freedom of the State in establishing its policy is the freedom of any constitutional government and is limited by the req. of due process of law. o (16) The due process clause req: State action, whether through one agency or another, shall be consistent with the fund. Principles of liberty/just.. o The duty of maintaining constitutional rghts of a person on trial for their life rises above mere procedural rules and if the court agrees r violated it will refuse to sanction such violations and will apply the corrective. POWELL v. ALABAMA: 3 illiterate, out of state, not afforded counsel. Mr Roddy (out of towner, not part of bar) and court assigned. Trial judge assigned all the members of the bar o In any case, civil/crim, st/fed court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for, a refusual would be denial of a hearing and thus, of violate due proc. In a capital case where D. is unable 2 employ, incapable of making own case because of ignorance, etc,. It is the duty of ct, whether req or not, 2 assgn counsel 4 them as a necessary req of due proc. Dissent: Justice Butler arg that due process violated in failure to provide suf time to prepare. Class 1/8 NORMS: Federalism Democracy security [individual rights] Racism/discrimination VALUES: Efficiency Accuracy ex. Truthful confessions but obtained through torture. Fairness Powel Limited govt provisions 5/6th am. Secure, search seizures. Canada/Euro/Eng permit evidence to be introduced even if it is seized in an unfair manner. 1/10 Searches/Seizures The balance and ultimate remedy for actions that are disliked but found not to be protected pursuant to the fourth amendment can be ameliorated through legislative means. KATZ th 14 am. Protects people, not places. Extendnot only tangible items but also the recording of oral statements overheard without any technical trespass under loca property law.

TEST: Whether or not the person Subjective (i) by their conduct has exhibited an actual expectation of privacy or in other words whether the individual has shown that he they have sought to preserve something as private. (ii) whether the individuals subjective expectation of privacy is one that society is prepared to recognize as reasonable whether in other words the individuals expectation is justifiable under the cirumstances. - Office; Cab ISSUE: Whether the serach and seizure conducted in this case complied with con stand. CONC: (a) that an enclosed telephone booth is an area where like a home and unlike a field a peson has a constitutionally protected reasonable expectation of privacy. (b) (c) Subsequent cases follow the test set forth in the Conc. o P106 Because the govts monitoring of Katz conversation violated the privaycy opon which he justifiably relied while using the telephone booth, the court held that it constitiuted a search and seizure within the meaning of the fourth amendment. DIESSENT: the first clause protects perons, houses, papers and effects iliciting the idea of tangible things. Lose expectation of privacy if its visible WHITE p. 95 [Hoffa: held that when it turns out a person was communicating with govt agent no interest legitimately protected by the fourth amendment is involved, because it does not protect a wrongdoers misplaced belief that a person to whome they voluntarily confide their wrongdoing will not reveal. Katz: dif. From Hoffa held that where the person instantaneously tramsits them electronically to other agents the fourth amendment is violated.

Dissent: p99: sees the issue relating to the instant recording by third parties who electronically eavesdrop who (1) do so without court approval (2) but with consent/cooperation of a participant in the cooperation. ON LEE: govt agents enlisted Poy, a former friend of On Lee. Lee made damaging remarks to Poy which were heard by govt agents. Held that in the absence of a trespass, no constitituional violation occurs. Common Law Risk Analysis [Lewiz/Lopez} Katz (lesser approach) Reasonable Expectations Approach HERE: The questions must be answered by assessing the nature of a particular practice and the likely extent of its impact on the individuals sense of security balanced against the utility of the conduct as a technique of law enforcement. - Third parties revealing secrets ignores the differences occasioned by third party monitoring and recording which insures full and accurate disclosure of all that is said, free of error and oversight that inheres in human reporting.

Smith v. MD Court differentiates from Katz stating that because a pen does not acquire the contents of communications. Secondly he could not have a reasonable expectation of privacy because telephone numbers are inherently not private. They are provided for by telephone company, phone books etc. Thus, the court here says that it does not matter whether or he was using the phone in his house or not. o FIRST: Also the court has consistently held that a peson does not have a reasonable expectation of privacy to information given ut voluntarily to third parties because they are assuming the risk. Assumption of risk is not a choice o Secondly: The privacy right the defendant claims to have is not one in which society is prepared to recognize as reasonable. o Courts have consistently held that a person has no legitimate expectation of privacy in information they voluntarily turns over to third parties.

DISSENT: finds no difference between the numbers dialed and the conversation had like in katz. Prof (p.110): o (1) Individual

HYPO: Telephone Booth in rural open field. If I step inside it is Katz good law? -YES. Katz is still good law. Franks Hearing:174 Where makes substantial prelim showing that false statement knowing and intentionally, or reckless disregard for truth, was included by affiant in warrant the Fourth Amendment requires a hearing be held at the requests. IF: false statement found then it is removed from the warrant. And: if the warrant cannot stand without the false statements then the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Probable Cause test in [GATES] extends to situations both for probable cause to issue a warrant and for probable cause without a warrant. P176 Davenpeck v Alford: an arrest is lawful even if an officer incorrectly believes he has probable cause to arrest person for Crime A 9and thus makes said arrest), if based on the facts known to the arresting officer, probable cause objectively exists to arrest for Crime B. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.

If cops legally in house can seize visible objects. NY v. BELTON 1981 FACTS: Car pulled over. Cop Smelt Weed. No one in car owned car. He searched car after giving Miranda rights. Searched passenger compartment. On back seat in a jacket belonging to BELTON fund cocaine. ISSUE: what is the proper scope of a search of the interior of a car incident to lawful custodial arrest of its occupants. HOLD: When a cop has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, serach the passenger compartment of that car. It thus follows that they may search any containers found within the passenger compartment not encompass the trunk. NOTES 4. Search incident to lawful citation: o Knowles: Cop pulled over car speeding. Issued citation. Then searched. STANDING:::: Constitional rights are violated where the harm is done to that individual person, i.e to their things or home, where and when that person possessed a legitimate or reasonable expectation of privacy. An individual lacks standing when an officer illegal peers into a gap in a closed window blind and the individuals presence in the apt was strictly commercial and not as a social guest. [Minnesota v. Carter] An individual does have standing to challenge the constitutionality of a search where the individual was present as an overnight guest [Minnesota v. Olson] Cars: For any passenger, the reasonabless of their expectation of privacy would depend on such factors as the regularity of their presence in the car, their ownership of the car, and their relationship to the car owner. Factors: o Proeprty ownership o Whether defendant has possessory interest in the thing seized o Whether defendant has a possessory interest in the place searched o Whether defendant has the right to exclude others from that place o Whether defendant has exhibited a subjective expectation that the place would remain free from govt invasion o Whether the defendant took normal precautions to maintain their privacy.

Exclusionary Rule Purpose: Varies according to the nature of the right which has been infringed and the kind of evidence which has been obtained. Mapp v. Ohio: FACTS: 3 cops attempt to enter Mapps home by claiming info confidential informant. Force way in Search entire home and find porno in bedroom. o Charged with possession and control of obscene material.

HOLD/RULE: All evidence obtained by searches and seizures in violation of the Constitition is, by the same authority, inadmsibble in astate court. Downside of Exclusionary Rule o Reliable evidence is unavailable to prosecutor. o Public respect for justice suffers because of technicality. o Rule does not deter cops misconduct becase the exclusion occurs long after the conduct. For the exclusionary rule to apply the person searching or seizing must be the government or an agent of the govt. Thus, the rule applies to conduct by any state actor and is not confined to law enforcement. [Jersey v TLO: where the court found that a school principal must follow the Fourth Amendment] o Private Actors: Whereas evidence illegally obtained by private actors not acting in concert with cops is admissible. If police misconduct is not deterred by applying the exclusionary rule in a particular setting, the Court has stated that the rule should not be used because the social costs of the rules applications (i.e. some criminals will go free) are so great Grand Juries: Any incremental deterrent effect which might be achieved by extending the exclusionary rule to grand jury proceedings is uncertain at best. Thus the court in US v. Calandra: held the rule inapplicable by the court to the use of unconstitionally-seized evidence presented to a grand jury. Federal Habeas Corpus: The rule does not apply to fourth amendment claims raised in federal habeas corpus proceedings where the petitioner had a full and fair opportunity to litigate the issues in their prior State court proceeding. [Stone v. powell] Violation of Internal Agency Standards: Evidence obtained in violation of govt agency standards/rules rather than in violation of federal constitiional or statuory law does not meant he evidence will be excluded by the rule

Derivative Evidence Fruit Poisonous Tree Wong Sun v. US: Cops illegally entered defendants home, Defendant made a statement that lead to the disoery of drugs based on statement. o Held: The drugs because based on the defednants statements were inadmissible and also the statement was inadmissible but because it was derived from the illegal entry. Step-by-Step Analyssi: Fruits of Poisonous Tree 1. Does person have standing to challenge original violation? 2. Did the orgigninal official conduct violate persons rights? 3. Was the evidence sought to be admitted against the person? If any answer is NO then Fruits of Poisoins Tree analysis fails. Because the FOPT is an alternative means of suppressing evidence it can be benefiitial to defendants who lack standing to challenge the original violation. EX: Confession from codefendant A in reaction 2 illegal arrest of codefendant B. Codefendant B cannot directly attack the admissibility of As confession because B lacks standing. o However, under FOPT B can prevent admission of As confession because B does have standing to challenge Bs own illegal arrest, which violated his personal rights, and if B can show a direct link between Bs illegal arrest and As confession.

Exclusionary Rule Exception GOOD FAITH US v. LEON: OBJECTIVE TEST: Whether a reasonably well trained officer would have known that the serach was illegal despite the magistrates authorization. In Leon the Good-Faith Exception only applied to defective search warrants and not warrantless searches. o LEION states that the Good-Faith Exception NEVER applies when: Magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was falce except for their reckless disregard of the truth. Where the issuing magistrate wholly abandoned their judicial role. An officer relied on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Depending on circumstances of the particular case a warrant was so ficially deficient (i.e. in failing to particularize the place to be searched or the things to be seized, the executing officers cannot reasonably presume to be valid. o STATE LAW can REJECT ECXCEPTION Hudson v. Michigan: Court regused to apply exclusionary evidence rule in contest of a vilation of the knock and announce rule. Cops searched home pursuant a warrant, waited 5 seconds after knock then entered. o Cost-Benefit Test: the court note that the exclusionary rule should not be indiscriminately applied, but rather should be reserved for situations where its remedial objectives are though most efficaciously served, i.e., where its deterrence benfefits outweigh its substantial social costs. Rule does not apply to ecluded evidenced introduced by prosecution to impeach defendants credibility on cross examination [HARRIS v. YORK] The evidence must bear directly on the current charge. o Before using illegal evidence to impeach the prosecution must show that the statements were given voluntary. i.e not in violation of due process. Impeachment exception not apply to witnesses.

SIEGELS CRIM PRO: Herring v. Hudson: Where a clerical error that is not the result of systematic failures or reckless record keeping leads to the mistaken belief that a warrant exists, and arresting officers reasonably rely on that belief in good faith, any evidence flowing from the arrest will not be subject to the exclusionary rule.

SUM and SUBSTANCE CRIM PRO: Extending Good-Faith EXCEPTION beyond Warrants Good faith exception to the exclusionary rule to otherwise unconstitutional actions by cops based upon. Arizona v. Evans: A computerized cop record erroneously indicating the existing of an outstanding arrest warrant. Illinois v. Kroll: Reasonable reliance upon a statute subsequently found to be unconstitutional. Herring v. US: An officers reliance on negligent recordkeeping by other cops leading to an illegal search. Davis v. US: A cops reasonable reliance on precedent that was binding at the time but subsequently overruled. The extent to which the exclusionary rule is justified by deterrence principles varies with the probability of the law enforcement conduct.

Voluntariness Standard: Colorado v. Connelly: Court held that while the defendants free choice is relevant, its importance depends on the cops having engaged in overreaching the suspect, evaluated by the totality of circumstances. FACTS: Cops knew defendant had been patient in mental hospital Did not know of auditory hallucinations that led him to confess. RULE: coercive police activity is a necessary predicate to a finding of involuntariness. Even if a defendants free will is overborne by mental ill ness, this does not make the confession involuntary in the absence of cops coercion. o HERE: Defendant had been given Miranda rights; appeared to understand fully the nature of his acts when he waived his rights. IF: Cops had known defendant was insane and kept questioning they would have overreached. DISSENT: NOTE 9 Argument that state action or not Connellys confession was unreliable and thus, was unreliable on that on its own. ARIZONA v. FULMINANTE FACTS: Inmates threatened defendant with violence cause thought child killer. Informant inmate bargained for Defendants confession promising protection. RULE: Because the promise the carried weight and carried a credible threat of violence and due to the defendants situation as a frightening one the court found his failure to confess to the information could have resulted in attacks by the threatening inmates. o Court finds defendants individual frailties as relevant to its finding that the confession was involuntary. Police Conduct MUST Overbear Suspects Will The promise must be sufficiently compelling to overbear the suspects will in light of the circumstances. o Court has found Due Process violations when:

Rogers Richmond: Cops threatened to take suspects wife into custody if he did not confess. Lynumm: Suspect told that she could lose welfare $ and custody of kids if she did not confess. Suspects Personal Charecteristics o Age o Intelligence o Education o Criminal Experience o Mental Condition Colorado v. Connelly o Intoxication drugs/alcohol o Physical injury and coercion Brown v. Mississippi o Threats to others Rogers v. Richmond o Length of interrogation and number of interrogators Ashcraft o False friend Spano

1. Why the Voluntariness Approach Is Still Important Part of the reason for Due Processs vitality is that the Fifth and Sixth Amendment doctrines contain gaps that can be filled only by reference to Due Process rules. For example, Miranda does not apply to undercover investigations, to impeachment evidence, or to defendants who have waived their Miranda rights. Massiah is relevant only at or after the start of adversary judicial proceedings when a defendant has been charged with crimes. The most significant Due Process decisions in the post-Miranda era involve defendants whose confessions could not satisfy the Fifth and Sixth Amendment doctrines. Impeaching Defendant with Statements Violating Miranda - Can never use an involuntary confession even for impeachment. Massiah v. US FACTS: