Crimpro

LexisNexis Area of Law Summary
Criminal Procedure Chapter 1 OVERV E! O" "O#R$% A&EN'&EN$ PR NC PLES ( 1)*1 $ext of the "ourth Amendment The Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ( 1)*+ Persons and Actions Co,ered -y the "ourth Amendment .A/ 0People1 The Fourth Amendment is not specifically limited to citizens. For Fourth Amendment purposes, the word people! encompasses non"citizens who have developed sufficient connection! with the #nited $tates to be considered part of the national community.! United States v. Verdugo-Urquidez, %&% #.$. '(& )*&&+,. -n Verdugo-Urquidez, the .ourt assumed, but did not rule, that undocumented immigrants living voluntarily in the #nited $tates have accepted some societal obligations! and thus possess Fourth Amendment rights. -t declined to resolve the /uestion of whether a nonresident alien, involuntarily detained in the #nited $tates for an e0tended period of time, has sufficient connection with the country to be afforded Fourth Amendment rights. .2/ Standin3 to Raise "ourth Amendment Claims Fourth Amendment rights may only be asserted by one who is sub1ected to an unreasonable search or seizure. The rights may not be vicariously asserted. Thus, a defendant cannot challenge a search against a co"defendant. 2See .hapter 3, $tanding to Assert Fourth Amendment .laims.4 .C/ 4o,ernmental Action The Fourth Amendment only applies to actions by the government. Actions underta5en by private persons acting in the capacity of an agent of the government are also covered by the Amendment. Whether a private person is deemed an agent of the government is
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determined by the degree of government involvement in the situation and the totality of the circumstances. The Fourth Amendment is not limited to police activity and covers conduct by other public employees, such as firefighters, public school teachers, and housing inspectors. $earches by non"police government actors are generally of an administrative, not investigatory nature, and are controlled by different standards. 2See .hapter (, Administrative and 6on"-nvestigatory $earches.4 .'/ Extraterritorial Searches and Sei5ures The Fourth Amendment does not apply to activities of foreign law enforcement officers acting outside the #nited $tates. Thus, evidence secured by a foreign officer that is turned over to the #nited $tates may be admitted against the victim of the search in a criminal trial. 7owever, if there is sufficient #.$. involvement in the e0traterritorial search of an American citizen, the Fourth Amendment applies. -n contrast, nonresident aliens located outside the #nited $tates or its territories, as well as those who are temporarily and involuntarily in the country, are not protected against foreign searches, even if conducted by #nited $tates government officers. United States v. Verdugo-Urquidez, %&% #.$. '(& )*&&+,. ( 1)*6 0Persons7 %ouses7 Papers7 and Effects1 .A/ 0Persons1 For Fourth Amendment purposes, person! includes: )*, the defendant8s body as a whole )as when he is arrested,9 )', the e0terior of the defendant8s body, including his clothing )as when he is patted down for weapons,9 ):, the interior of the defendant8s body )as when his blood or urine is tested for drugs or alcohol,9 )%, the defendant8s oral communications )as when his conversations are sub1ected to electronic surveillance,. .2/ 0%ouses1 7ouse! has been broadly construed to include: )*, structures used as residences, including those used on a temporary basis, such as a hotel room9 )', buildings attached to the residence, such as a garage9 ):, buildings not physically attached to a residence that nevertheless are used for intimate activities of the home, e.g., a shed9 )%, the curtilage of the home, which is the land immediately surrounding and associated with the home, such as a bac5yard. 7owever, unoccupied and undeveloped
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property beyond the curtilage of a home ) open fields!, falls outside of the Fourth Amendment. Factors relevant to determining whether land falls within the cartilage are: )*, the pro0imity of the land to the home9 )', whether the area is included within enclosures surrounding the house9 ):, the nature of the use to which the area is put9 and )%, the steps ta5en by the resident to protect the land in /uestion from observation. United States v. Dunn, %;+ #.$. '&% )*&;<,. .ommercial buildings receive limited Fourth Amendment protection on the theory that one has a greater e0pectation in his home than in commercial structures. .C/ 0Papers and Effects1 =apers! encompass personal items, such as letters and diaries, as well as impersonal business records. >ffects! encompass all other items not constituting houses! or papers,! such as clothing, furnishings, automobiles, luggage, etc. The term is less inclusive than property!9 thus, an open field is not an effect. ( 1)*8 0Search1 .A/ Katz v. United States -n Katz v. United States, :;& #.$. :%< )*&3<,, federal officers, acting without a warrant, attached an electronic listening device to the outside of a telephone booth where the defendant engaged in a number of telephone conversations. The controlling legal test at the time for determining whether police conduct violated the Fourth Amendment was 5nown as the trespass doctrine. #nder the trespass doctrine, the Fourth Amendment did not apply in the absence of a physical intrusion " a trespass " into a constitutionally protected area,! such as a house. 6oting the advent of modern technology that allowed the government to electronically intercept conversations without physical intrusion into any enclosure, the .ourt abandoned the trespass doctrine and announced that the appropriate in/uiry for Fourth Amendment challenges was whether the defendant had a reasonable expectation of privacy. Applying this new standard, the .ourt found that despite the fact that the telephone booth was made of glass and the defendant8s physical actions were 5nowingly e0posed to the public, what he sought to protect from the public were his conversations, as evidenced in part by shutting the door to the phone booth. Thus, the government8s electronic surveillance of the defendant8s conversations without a warrant violated the Fourth Amendment. .2/ 0"alse "riends1 'octrine
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The Fourth Amendment protects private conversations where no party consents to the surveillance and?or recording but does not protect conversations where one party consents to such activity. Thus, under the doctrine of false friends,! no search occurs if a police informant or undercover agent mas/uerading as the defendant8s friend, business associate, or colleague in crime, reports to the government the defendant8s statements made in the informant8s or agent8s presence. United States v. White, %+* #.$. <%( )*&<*,. A person is not deemed to have a reasonable e0pectation of confidentiality from a person with whom he is conversing. The doctrine also applies where the false friend! wears a wire! to record the conversation with the defendant. .C/ Open "ields >ntry into and e0ploration of so"called open fields! does not constitute a search within the meaning of the Fourth Amendment. The open fields doctrine! is based on the theory that people do not have a legitimate e0pectation of privacy in activities occurring in open fields, even if the activity could not be observed from the ground e0cept by trespassing in violation of civil or criminal law. .'/ Other "orms of Electronic Sur,eillance .1/ Pen Re3isters -nstallation and use of a pen register by the telephone company, at the behest of the government, to record the telephone numbers dialed from a private residence is not a search within the meaning of the Fourth Amendment. Smith v. Maryland, %%' #.$. <:( )*&<&, )concluding that the defendant did not li5ely have an e0pectation of privacy in the numbers he dialed, but even if he did, such e0pectation was unreasonable,. .+/ Electronic $rac9in3 'e,ices Surveillance of activities occurring in public falls outside the protections of the Fourth !end!ent. Thus, the use of an electronic trac5ing device attached to a suspect8s vehicle or ob1ect carried by the suspect does not constitute a search to the e0tent that it provides the police with information that could have otherwise been secured by visual surveillance from public places. United States v. Knotts, %3+ #.$. '<3 )*&;:,. 7owever, where such device allows the police to monitor activity inside a private place such as a home, a Fourth Amendment search occurs. United States v. Karo, %3; #.$. <+( )*&;%,. .6/ $hermal ma3ers The use of a thermal"imaging device aimed at a home from a public area to detect relative amounts of heat within constitutes a search. Kyllo v. United States, (:: #.$. '< )'++*, )technology improperly used to confirm federal agent8s suspicion that defendant was
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using high"intensity lamps to grow mari1uana inside his home,. #se of such technology constitutes a search if it enables the government to gather evidence from a constitutionally protected area to which it would not otherwise have access without a warrant. .E/ Aerial Sur,eillance Aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a search if the surveillance: )*, occurs from public navigable airspace9 )', is conducted in a physically non"intrusive manner9 and ):, does not reveal intimate activities traditionally connected with the use of a home or curtilage. California v. Ciraolo, %<3 #.$. '+< )*&;3, )involving aerial surveillance of defendant8s bac5yard in which he was growing mari1uana, .onstruction of a fence which bloc5s observations from ground"level and demonstrates the defendant8s desire to maintain privacy does not necessarily e/uate to a reasonable e0pectation of privacy if there any modes of surveillance possible under the circumstances, e.g., airplanes and helicopters flying above, observations from taller ad1acent buildings, a utility repair person on a pole overloo5ing the yard. ."/ 'o3 Sniffs and Other $ests for Contra-and Activity that is aimed at detecting the !ere presence of contraband, or identifying a suspicious substance as such, does not constitute a search. United States v. la!e, %3' #.$. 3&3 )*&;:, )a dog sniff of luggage, which was located in a public place, does not constitute a search,9 United States v. "a!o#sen, %33 #.$. *+& )*&;%, )a chemical test that merely discloses whether a particular substance is cocaine does not compromise any legitimate interest in privacy,! and is, therefore, not a search,. 7owever, a test to determine personal use of contraband, such as a urine test to detect drug use, does /ualify as a search. .4/ nspection of 4ar-a3e There is no reasonable e0pectation of privacy in garbage left for collection outside the curtilage of one8s home. California v. $reen%ood, %;3 #.$. :( )*&;;,. ( 1)*: 0Sei5ure1 .A/ Sei5ure of Property -n contrast to a search, which affects a person8s privacy interest, a seizure of property invades a person8s possessory interest in that property. Tangible property is seized in
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Fourth Amendment terms when there is some meaningful interference with an individual8s possessory interests in that property.! .2/ Sei5ure of Persons A Fourth Amendment seizure of a person occurs when a police officer, by !eans of physical force or show of authority, in so!e way restrains the liberty of a citizen, &erry v. 'hio, :&' #.$. * )*&3;,, or put another way, when in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.! United States v. Mendenhall, %%3 #.$. (%% )*&;+,. >0amples of activities that constitute a seizure of persons include: arrests. physically restraining or ordering a person to stop in order to fris5 or /uestion him on the street. ta5ing the person into custody and bringing him to a police station for /uestioning or fingerprinting. ordering a person to pull his automobile off the highway for /uestioning or to receive a traffic citation. stopping a car by means of a roadbloc5. 7owever, brief "uestioning by itself is unli#ely to a!ount to a seizure. (.g., )lorida v. *osti!+, (+* #.$. %'& )*&&*, )brief /uestioning during a bus sweep! not a seizure,9 ,mmigration and -aturalization Servi!e v. Delgado, %3+ #.$. '*+ )*&;%, )brief /uestioning about citizenship during a factory sweep! not a seizure,. .C/ 0&ere E,idence1 Rule #nder the mere evidence! rule, only certain categories of evidence could be seized: )*, a fruit! of a crime )e.g., money obtained in a robbery,9 )', an instrumentality of a crime )e.g., the gun used to commit a robbery, or the car used in the get"away,9 or ):, contraband )e.g., illegal narcotics,. $o"called mere evidence,! items that have only evidentiary value in the apprehension or conviction of a person for an offense, could not be seized. The $upreme .ourt abolished the mere evidence rule in Warden v. .ayden, :;< #.$. '&% )*&3<,. =olice officers may now seize any evidence that has a connection to the criminal activity under investigation. ( 1)*; Pro-a-le Cause .A/ Scope of 0Pro-a-le Cause1 Re<uirement
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=robable cause is re/uired as the basis for: )*, arrest and search warrants9 and )', all arrests )regardless of whether an arrest warrant is re/uired, 6ot all searches and seizures need be founded on probable cause. A lesser standard @ reasonable suspicion! @ may apply where the intrusion is minor, such as a pat"down for weapons. Furthermore, where the intrusion on a person8s privacy is especially slight and society8s interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for society and border chec5points and certain administrative searches. .2/ 0Pro-a-le Cause1 'efined =robable cause! e0ists when the facts and circumstances within an officer8s personal 5nowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that: )*, in the case of an arrest, an offense has been committed and the person to be arrested committed it. )', in the case of a search, an item described with particularity will be found in the place to be searched. =robable cause is an ob1ective concept. An officer8s sub1ective belief, no matter how sincere, does not in itself constitute probable cause. 7owever, in determining what a person of reasonable caution! would believe, a court will ta5e into account the specific e0periences and e0pertise of the officer whose actions are under scrutiny. .C/ 2asis for 0Pro-a-le Cause1 =robable cause may be founded on: )*, direct information, i.e., information the officer secured by personal observation9 and )', hearsay information. 6o weight may be given to unsupported conclusory statements in probable cause determinations. .1/ 'irect nformation #nless a magistrate has reason to believe that an affiant has committed per1ury or rec5lessly misstated the truth, the magistrate may consider all direct information provided by the affiant. The affiant8s information is considered reasonably trustworthy because it is provided under oath. .+/ %earsay =0 nformant1> nformation
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A magistrate may consider hearsay for purposes of determining probable cause, as long as the information is reasonably trustworthy. The informant8s identity need not be disclosed to the magistrate unless the magistrate doubts the affiant8s credibility regarding the hearsay. The /guilar"S0inelli test for determining the reliability of informant tips controlled until *&;:, when it was replaced by the $ates totality"of"the circumstances! test. .a/ guilar$Spinelli $est 7earsay information had to satisfy both of the test8s prongs below in order to be deemed sufficiently trustworthy to be included in the probable cause assessment: )*, the basis"of"5nowledge prong9 and )', the veracity prong, of which there are two alternative spurs: )a, the credibility"of"the"informant spur! and )b, the reliability"of"the"information spur.! /guilar v. &e1as, :<; #.$. *+; )*&3%,9 S0inelli v. United States, :&: #.$. %*+ )*&3&,. The basis$of$#nowledge prong is satisfied if the informant personally observed the reported facts. -f the information was second"hand, the magistrate would need to ascertain the reliability of that source. -n some circumstances, the basis"of"5nowledge prong could be satisfied by self$verifying detail,! where the information provided by the informant was so rich in detail that it was reasonable to conclude that he had obtained it first hand. To satisfy the veracity prong, evidence was re/uired to demonstrate either that the informant was a credible person )the credibility spur of the veracity prong, or, if that could not be shown, that his information in the specific case was reliable )the reliability spur,. -f one of the prongs was not satisfied, the hearsay evidence standing alone was deemed insufficiently trustworthy, but its trustworthiness could be resuscitated by at least partial corroboration. .-/ 0$otality of the Circumstances1 $est -n ,llinois v. $ates, %3' #.$. '*: )*&;:,, the .ourt abandoned /guilar and substituted the totality"of"the"circumstances test for probable cause determinations, which re/uires the magistrate to balance the relative weights of all the various indicia of reliability )and unreliability, attending an informant8s tip.! The factors enunciated in /guilar - basis"of" 5nowledge and veracity " remain highly relevant! in determining the value of an informant8s tip but are no longer treated as separate, independent re/uirements.
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Chapter + SEARC% !ARRAN$S ( +)*1 0Oath or Affirmation1 The Fourth Amendment provides that warrants may not be issued unless they are supported by Oath or affirmation.! An affidavit supporting a search warrant is presumed valid. 7owever, in limited circumstances, a defendant may challenge a facially valid warrant, after the search is conducted, on the ground that the warrant would not have been issued but for the falsity in the affidavit. )ran+s v. Dela%are, %:; #.$. *(% )*&<;,. The granting of a hearing on the veracity of the affidavit re/uires the defendant to ma5e a substantial preliminary showing! that: )*, a false statement was included in the affidavit9 )', the affiant made the false statement 5nowingly and intentionally! or with rec5less disregard for the truth9 and ):, the false statement was essential to the magistrate8s finding of probable cause. -f the allegations are proved at a hearing by a preponderance of the evidence, the warrant is void, and the fruits of the search must be e0cluded from the criminal trial. ( +)*+ 0Particularity1 Re<uirement The Fourth Amendment provides that a warrant must describe with particularly the place to be searched, and the persons or things to be seized.! .A/ 0Place to -e Searched1 The place to be searched must be described in the warrant in a manner sufficiently precise that the officer e0ecuting the warrant can identify it with reasonable effort. For e0ample, if the warrant specifies an address which is in fact a multiple dwelling building, the police must limit their search to the unit belonging to the person named in the warrant only, which may be ascertained by reasonable effort, such as by chec5ing names on the mailbo0 or by as5ing neighbors. A warrant to search an automobile is sufficient if it describes the vehicle in a manner that ma5es it easily identifiable, such as by providing the license or vehicle identification number, or by describing its location, if the location is a one"car garage, but not if it is a two"car garage or public par5ing lot. .2/ 0Persons or $hin3s to -e Sei5ed1 A degree of vagueness in the warrant description may be acceptable when the police have described the item with as much particularity as can reasonably be e0pected. Aess
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specificity is re/uired regarding contraband than is re/uired for papers! and effects,! which the First Amendment protects. ( +)*6 Execution of Search !arrants .A/ $ime of Execution $ome 1urisdictions, by statute or rule of procedure, re/uire that search warrants be e0ecuted within a specified period of time from the date that the warrant was issued, often within ten days. $ome 1urisdictions bar night"time e0ecution of warrants, unless e0pressly authorized by the magistrate. .2/ ?noc9@and@Announce Rule Benerally, the police may not forcibly enter a home to e0ecute a warrant, unless they first 5noc5 at the door )or ring the bell,, identify themselves, state their purpose for see5ing entry, re/uest admittance, and are refused admission. Wilson v. /r+ansas, (*% #.$. &'< )*&&(,. The #noc#$and$announce rule !ay be dispensed with when the police: )*, have chased the person named in the warrant to his home in hot pursuit9 )', have reasonable suspicion that evidence !ay be i!!inently destroyed9 and ):, have reasonable suspicion that there is a ris# of har! to the officers or others. ( +)*8 Scope of the Search The police are authorized to search only for ite!s specified in the warrant. They may open containers )e.g., drawers, closets, trun5s, within the place specified in the warrant if the containers are large enough to contain the ob1ect of the search. (.g., the police may open dresser drawers in a search for narcotics but not for a stolen television. 6evertheless, the police are authorized to seize any ite! )whether or not it is described in the warrant, if: )*, they discover the item while searching a place that they have the authority to search9 )', the item is located in such area9 and ):, they have probable cause to believe the item is sub1ect to seizure. ( +)*: Search of Persons !hile Executin3 a !arrant .A/ Pu-lic Places When a warrant is e0ecuted in a public place, the police !ay not extend the search to persons not na!ed in the warrant who happen to be present at the premises identified in the warrant, unless they have reasonable suspicion that such other persons are armed and
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dangerous. -n that case, such other persons may be fris5ed according to &erry v. 'hio. 2See C :.+*, Deasonableness Ealancing! $tandard.4 2#arra v. ,llinois, %%% #.$. ;( )*&<&, )police officers, with a warrant to search a tavern and a named bartender for heroin, fris5ed each tavern customer for weapons, without reason to believe any were armed, and discovered heroin on the person of one of the customers,. .2/ Pri,ate %omes The $upreme .ourt has not directly addressed the scope of a police officer8s authority to search a person during e0ecution of a search warrant to search a private residence. A few lower courts permit the police, while e0ecuting a search warrant of a home for narcotics, automatically to fris5 occupants for weapons. Other courts re/uire particularized suspicion that the person fris5ed is armed and dangerous. .C/ 'etention of Persons 'urin3 Searches Furing the e0ecution of a search warrant for contraband, the police have limited authority to detain all occupants of the premises to be searched. Mi!higan v. Summers, %(' #.$. 3&' )*&;*,. The .ourt has not addressed whether this authority e0tends to search warrants for evidence other than contraband.
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Chapter 6 !ARRAN$LESS SEARC%ES ( 6)*1 0Reasona-leness 2alancin31 Standard .A/ %erry v. &hio &erry v. 'hio, :&' #.$. * )*&3;,, made constitutionally permissible warrantless searches and seizures in limited circumstances. The $upreme .ourt ruled that in determining whether the Warrant and =robable .ause clauses of the Fourth Amendment apply to a given search and?or seizure, the central in"uiry is the reasonableness of the govern!ent's activity under the circu!stances( reasonableness is assessed by balancing the need to search or seize against the invasion the search or seizure entails. This is 5nown as the reasonableness balancing! test. 2See C :.+' for further discussion of &erry v. 'hio.4 .2/ 0Reasona-le Suspicion1 $uspicion is reasonable! if the officer can point to specific and articulable facts that, along with reasonable inferences from those facts, 1ustify the intrusion. Deasonable suspicion that a crime has been or is being committed may be based on one or more of the following information: the police officer8s personal observations. reliable hearsay. criminal profiles. unprovo5ed flight. .1/ %earsay 7earsay may support an officer8s reasonable suspicion of criminal activity where: )*, the tip carries enough indicia of reliability to 1ustify a &erry stop. /dams v. Williams, %+< #.$. *%: )*&<',. (.g., the informant identifies himself or has provided reliable information to the police on a prior occasion. )', a tip lac#ing sufficient indicia of reliability is corroborated such that the totality of the circumstances 1ustifies the &erry stop. /la#ama v. White, %&3 #.$. :'( )*&&+,. A tip lac5s sufficient indicia of reliability where the informant is anonymous and provides an insufficient basis for his statements from which the police may conclude that the informant is honest or his information reliable. An uncorroborated anonymous tip can never serve as the sole basis for a &erry stop. )lorida v. ". 3., ('& #.$. '33 )'+++, )reasonable suspicion not found where the police received an anonymous tip that a young blac5 male wearing a plaid shirt standing at a particular bus stop was carrying a gun and where the police observed a person matching
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the informant8s description, but noted no suspicious conduct suggesting criminal activity was underfoot,. .+/ Criminal Profiles An officer8s observations may properly be supplemented by consideration of the typical modes of behaviors of certain 5inds of criminals. For e0ample, in drug"traffic5ing cases, an officer8s suspicions can be buttressed by his awareness that the suspect8s conduct or appearance conforms to a so"called drug"courier profile,! which is a set of characteristics purportedly often associated with drug traffic5ers, compiled by law enforcement agencies. .6/ "li3ht in 0%i3h@Crime Areas1 #nprovo5ed flight, when coupled with other factors @ such as the presence of the police in a high"crime area @ can constitute reasonable suspicion to 1ustifying a search and?or seizure, at least in the absence of circumstances that suggest the flight is motivated by a non"criminal purposes. ,llinois v. Wardlo%, ('; #.$. **& )'+++,. .8/ SuspectAs Race or Ethnicity &erry stops based solely on the race of a suspect are impermissible. 7owever, race or ethnicity, when coupled with other factors, may give rise to reasonable suspicion. For e0ample, courts have sometimes treated racial incongruity! @ the presence of a person of a particular race or ethnic group in a neighborhood where such group is not ordinarily found @ as one legitimate factor in evaluating the lawfulness of a stop. .C/ Len3th of the 'etention The 1ustifiability of a seizure on less than probable cause is predicated in part on the brevity of the detention, although there is no bright"line time limitation to a &erry"type seizure. Com0are United States v. la!e, %3' #.$. 3&3 )*&;:, )&+"minute detention of person suspecting of carrying narcotics in his luggage in order to sub1ect the luggage to a dog"sniff test was held e0cessive in length, %ith United States v. Montoya de .ernandez, %<: #.$. (:* )*&;(, )*3"hour detention was upheld where a woman, who was suspected of having swallowed narcotics"filled balloons in order to smuggle them, refused to undergo an 0"ray, and was thus detained until she had a bowel movement,. -n determining whether a detention was e0cessive in length, the court may consider whether a less intrusive method was available and whether the police acted unreasonably in failing to recognize it or to pursue it. United States v. Shar0e, %<+ #.$. 3<( )*&;(,. ( 6)*+ !eapons Searches .A/ %oldin3 of %erry v. &hio
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At issue in &erry was a pat"down of a suspect that the officer observed apparently casing! a store in order to rob it. The .ourt found that the brief restraint and pat"down did constitute a search and seizure. 6e0t applying the reasonableness balancing test, the .ourt weighed society8s interest of effective crime prevention and detection @ which would be impaired if the police could not confront suspects for investigative purposes on less than probable cause @ and the police8s legitimate immediate interest in ensuring that the suspect is not armed, against the invasion of the suspect8s personal liberty. The .ourt held that the police conduct was constitutional, stating that when an officer has reason to believe that the suspect is ar!ed and dangerous, the officer has the constitutional authority to conduct a search for weapons without probable cause or a warrant. .2/ !eapon Searches of Persons The purpose of the &erry search is limited to the sole purpose of determining whether the suspect is ar!ed. While the appropriate manner of the protective search depends on the specific circumstances, generally, the proper techni/ue, as approved in &erry, is as follows: )*, -f an officer feels no ob1ect during a pat"down, or feels an ob1ect that does not appear to be a weapon, no further search is 1ustifiable. )', -f the initial pat"down @ with no further touching @ provides the officer with probable cause for believing that an ob1ect felt is contraband or other criminal evidence sub1ect to seizure, he may pull out the ob1ect without a warrant, as part of the plain"touch doctrine. ):, -f the officer feels an ob1ect that he reasonably believes is a weapon, the officer may conduct a search by removing the ob1ect from the suspect. )%, -f the ob1ect he pulls out is a container, he may feel the container to see if it might contain a weapon inside. )(, -f his suspicions regarding the container are not reasonably dispelled by its size, weight, and feel, the officer may, at a minimum, retain possession of the container. )3, -f the container could not reasonably contain a weapon, it may not be searched or seized. .C/ !eapons Searches of Automo-iles The police may search the passenger compartment of an automobile, limited to those areas in which a weapon may be found, if the officer reasonably believes that the suspect is dangerous and may gain immediate control of a weapon. Mi!higan v. 3ong, %3: #.$. *+:' )*&;:,. ( 6)*6 $emporary Sei5ures of Property &erry principles apply to seizures of property as well as to seizures of persons. Thus, for e0ample, police officers may, without a warrant, temporarily seize luggage on the basis
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of reasonable suspicion that it contains narcotics, in order to investigate further, such as to conduct a dog"sniff test of the luggage. United States v. la!e, %3' #.$. 3&3 )*&;:,. ( 6)*8 Searches and Sei5ures of the 2ody The ta5ing of a blood, urine or breath sample, or sub1ecting the suspect to other intrusions of the body, e.g., an 0"ray, may be permissible without a warrant if: )*, the police are 1ustified in re/uiring the individual to submit to the test9 and )', the means and procedures employed are reasonable. S!hmer#er v. California, :;% #.$. <(< )*&33, )withdrawing a blood sa!ple fro! the defendant without a warrant was found )ustifiable on the ground that the evidenceGthe alcohol in the bloodstreamGwould have been lost if the police had been re/uired to obtain a warrant,. ( 6)*: Exi3ent Circumstances >0igent circumstances can 1ustify a warrantless entry of a home to ma5e a felony arrest or to conduct a search related to a serious offense under the following circumstances: )*, hot pursuit of a fleeing felon9 )', i!!inent destruction of evidence9 ):, the need to prevent a felon's escape9 or )%, ris# of har! to the police or others. The e0igent"circumstances e0ception does not generally apply to cases involving minor offenses. Welsh v. Wis!onsin, %33 #.$. <%+ )*&;%, )warrantless entry of the defendant8s home in order to arrest him for drun5 driving was unconstitutional9 the .ourt re1ected the state8s argument that the entry was necessary in order to collect a blood sample for testing before evidence of alcohol consumption was destroyed!,. Warrantless entry of a home may also be permitted in order to respond to emergency situations, such as when the police reasonably believe that a person within is in need of immediate aid. 7owever, in such circumstances, the police are acting in a care"ta5er capacity, not an investigative capacity. ( 6)*; Searches ncident to Arrest .A/ Areas $hat &ay -e Searched !ithout a !arrant Degardless of whether or not an arresting officer suspects weapons, evidence, or dangerous persons will be discovered, conte!poraneous with a custodial arrest, an officer may conduct a warrantless search of: .1/ ArresteeAs Person
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The search of an arrestee may include poc5ets of his clothing, and any containers found therein, as well as containers immediately associated with him, such as a briefcase or shoulder bag, that are large enough to conceal a weapon or evidence of a crime. .+/ Area !ithin the ArresteeAs mmediate Control .a/ 4enerally Factors to consider in determining the arrestee8s grabbing area! are: whether he is hand"cuffed in front or behind his bac5. his size and de0terity. the size of the space he is in. whether containers within his reach are open or shut, and if shut, whether they are loc5ed. the number of officers relative to suspects. .-/ Arrests !ithin a %ome or Other Structure $ome courts apply a one"room! rule allowing a search of the entire room in which the arrest occurred, regardless of the other circumstances. Aside from those areas within a residence to which the search"incident"to"arrest! e0ception applies, the police may not search the entire house without a warrant. Chimel v. California, :&( #.$. <(' )*&3&,. .c/ Arrests on the Road When an occupant )driver or passenger, of an automobile is arrested, the police may conduct a warrantless search of the passenger co!part!ent and all containers found therein, whether the containers are open or closed. -e% 2or+ v. *elton, %(: #.$. %(% )*&;*,. 7owever, the trun5 and engine compartment fall outside this rule as they are not within the immediate grabbing area! of the arrestee. .6/ mmediately AdBoinin3 Spaces -f the arrest occurs in a home, closets and other spaces i!!ediately ad)oining the place of arrest fro! which an attac# could be i!!ediately launched! may be searched without a warrant. Maryland v. *uie, %&% #.$. :'(, ::% )*&&+,. This is 5nown as a protective search for dangerous persons! or a protective sweep! of the residence. $uch search is to be limited to a cursory visual inspection of those places in which a person could be hiding, and may last only as long as necessary to dispel the reasonable suspicion of damage, or to complete the arrest and depart the premises. .2/ Pro-a-le Cause to Sei5e
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A police officer !ay seize without a warrant any article found during the search upon probable cause to believe that it is cri!inal evidence related to the immediate or another crime, even though probable cause is not necessary to conduct the sear!h. .C/ "ull Custodial Arrest The search"incident"to"lawful"arrest rule applies to arrests in which the officer ta5es the suspect into full custody, which includes transporting him to the police station for boo5ing. -t does not apply, however, when an officer temporarily detains a suspect. Kno%les v. ,o%a, ('( #.$. **: )*&&;,. ( 6)*C Automo-ile Searches .A/ Searches at the Scene A police officer may conduct an immediate warrantless search of an automobile that the officer has probable cause to believe contains contraband, fruits, instru!entalities, or evidence of a cri!e if: )*, the officer stops the vehicle traveling on a public road9 or )', the officer discovers the vehicle par5ed, but apparently capable of operation, in a non"residential location, such as a public par5ing lot or gas station. .2/ Searches Away "rom the Scene A warrantless search of an automobile that would be valid if it were conducted at the scene, is also permissible if it ta5es place shortly thereafter away from the scene, such as if the police impound the vehicle and subse/uently conduct the search. The $upreme .ourt has authorized delays of a few days, United States v. "ohns, %3& #.$. %<; )*&;(,, but found a year"long delay unreasonable, Coolidge v. -e% .am0shire, %+: #.$. %%: )*&<*,. .C/ Searches of Containers .ontainers, even one belonging to a passenger who is not suspected of criminal activity, may be searched without a warrant during an otherwise lawful automobile search provided the container is large enough to hold the criminal evidence for which the police are searching. Any container that constitutionally can be searched at the scene may also be seized and searched without a warrant shortly thereafter, at the police station. ( 6)*D Plain View and Related 'octrines .A/ 0Plain View1
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A police officer lawfully present at the scene may seize without a warrant an ob1ect of an incriminating nature if it is in plain view! of the officer. An article is in plain view if: )*, the police officer observes the ob)ect fro! a lawful vantage point * i.e., the officer8s presence is not in violation of the Fourth Amendment. Benerally spea5ing, an officer will be in a lawful vantage point during: the e0ecution of a valid search warrant9 an in"home arrest pursuant to an arrest warrant9 a search 1ustified under an e0ception to the warrant re/uirement9 or an activity that does not constitute a search and, therefore, falls outside the scope of the Fourth Amendment. )', the police officer has a lawful right of physical access to the ob1ect @ i.e., an officer8s ability to view an ob1ect is not necessarily accompanied by authority to seize it, e.g., an officer may view mari1uana growing in a suspect8s bac5yard from the street but nevertheless needs a warrant to search the suspect8s property. ):, its nature as contraband, fruit, instrumentality, or evidence of a crime is i!!ediately apparent upon observation. .2/ nad,ertent 'isco,ery -f an officer anticipates discovery of a particular item, the plain view doctrine does not cure his failure to obtain a warrant or to include it in a warrant to search for other items. -n such cases, the warrantless search and seizure of such ob1ect violates the Fourth Amendment. Coolidge v. -e% .am0shire, %+: #.$. %%: )*&<*,. .C/ 0Plain $ouch1 The $upreme .ourt has recognized a plain touch! or plain feel! corollary to the plain view doctrine. Minnesota v. Di!+erson, (+; #.$. :33 )*&&:,. #nder this doctrine, the police may seize contraband detected solely through an officer8s sense of touch if, comparable to plain view, the officer had a right to touch the ob1ect in /uestion, and upon doing so, its identity as contraband was i!!ediately apparent. 7owever, if further probing is necessary to identify the nature of the ob1ect, the search falls outside the plain touch doctrine, and a warrant is necessary to continue the search. .'/ 0Plain %earin31 and 0Plain Smell1 'octrines Aower courts have similarly e0panded on the plain view! doctrine to recognize plain hearing! and plain smell! principles. ( 6)*E Automo-ile n,entory Searches Benerally spea5ing, a routine inventory search of a lawfully impounded car is reasonable under the Fourth Amendment even though it is conducted without a warrant and in the absence of probable cause to believe that evidence of a crime will be discovered. .onse/uently, if police discover criminal evidence during an inventory, they may seize it pursuant to the plain view doctrine, and introduce it in a criminal prosecution.
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.A/ 0Routine1 Nature of the n,entory A warrantless, suspicionless search of a car lawfully in police custody is not 1ustifiable merely because it was conducted for administrative purposes. The inventory must be a routine! or standard! procedure of the department conducting it. -deally, the regulations authorizing an inventory should give no significant discretion to the individual officer. 6evertheless, the $upreme .ourt has upheld inventories that permit some police discretion if e0ercised according to standard criteria! and grounded on reasons other than suspicion of evidence of a crime. Colorado v. *ertine, %<& #.$. :3< )*&;<,. .2/ Scope of n,entory Search .1/ Containers As part of a valid automobile inventory, the police may open containers found in the car, without a warrant or probable cause. Whether an officer police may do so in his discretion, see )lorida v. Wells, %&( #.$. * )*&&+,, or only where routine practice mandates such procedure, see Colorado v. *ertine, %<& #.$. :3< )*&;<,, is unclear. .+/ Loc9ed Portions of the Automo-ile An inventory search of an unloc#ed glove co!part!ent is permissible under the Fourth Amendment. South Da+ota v. '00erman, %'; #.$. :3% )*&<3,. #nresolved by the $upreme .ourt is whether a loc5ed glove compartment or automobile trun5 may be searched without a warrant during an inventory search, although many lower courts have authorized such searches when they are a re"uired part of a routine inventory. .6/ nspection of Papers The $upreme .ourt has not determined whether or to what e0tent the police may e0amine papers and documents found during an otherwise valid inventory, but lower courts have fre/uently barred the introduction of evidence secured as the result of the inspection of private papers found during an inventory search. ( 6)1* Arrest n,entories The police may search an arrestee, as well as his personal effects @ including containers, as part of a routine inventory at a police station, incident to his boo5ing and incarceration. 6either a search warrant nor probable cause is re/uired for an arrest inventory. ,llinois v. 3afayette, %3' #.$. 3%+ )*&;:,. ( 6)11 Consent Searches
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.A/ Validly O-tained Consent A validly obtained consent 1ustifies an officer in conducting a warrantless search, with or without probable cause. -f the officer discovers evidence during a valid consent search, he may seize it without a warrant pursuant to the plain view doctrine. +onsent is valid if it is: )*, given voluntarily @ The voluntariness! of consent is determined from the totality of the circumstances. .onsent that is the result of e0press or implied duress or coercion is involuntary. The prosecutor bears the burden of demonstrating by a preponderance of the evidence that consent was freely given. )', not based on an officer's assertion of authority to conduct a search on the basis of a warrant, whether or not the warrant is valid. *um0er v. -orth Carolina, :&* #.$. (%: )*&3;,. .2/ Scope of Search A warrantless consent search is invalid if the officer e0ceeds the scope of the consent granted. .C/ $hird@Party Consent .onsent to a search by one who possesses common authority over property is valid against another with whom the authority is shared. .ommon authority! e0ists when there is mutual use of the property by persons generally having 1oint access or control for most purposes.! United States v. Matlo!+, %*( #.$. *3% )*&<%,. 7owever, if a third party who lac5s common authority of the property with the defendant in fact consents to a search of the defendant8s property, such evidence cannot be admitted at trial against the defendant. Stoner v. California, :<3 #.$. %;: )*&3%,. .'/ Apparent Authority A warrantless search of a residence is also constitutional when it is based on the consent of a person whom the police, at the time of entry, reasonably believe has common authority over the premises, whether or not that authority is valid. ,llinois v. 4odriguez, %&< #.$. *<< )*&&+,.
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Chapter 8 ARRES$S ( 8)*1 4eneral Rules #pon probable cause that the suspect has committed or is committing a felony, a police officer: )*, !ay arrest a person in a public place without a warrant, even if it is practicable to secure one9 )', !ay not arrest a person in the person's ho!e without an arrest warrant, absent e0igent circumstances or valid consent9 and ):, !ay not arrest a person in another person's ho!e without a search warrant , absent e0igent circumstances or valid consent. 2See C :.+(, >0igent .ircumstances, and C :.**, .onsent $earches.4 ( 8)*+ Arrest in the %ome The Fourth Amendment prohibits the warrantless, nonconsensual entry into a suspect8s home in order to ma5e a routine! )non"e0igent, felony arrest. ayton v. -e% 2or+, %%( #.$. (<: )*&;+,. A warrant is not necessary to effectuate an arrest in the curtilage of the suspect8s home, however. Horeover, a suspect standing in an open doorway of his home at the time the police arrive is treated as if he were in a public place, 1ustifying a warrantless arrest. United States v. Santana, %'< #.$. :; )*&<3,. Aess clear is the situation where the suspect is inside the house until the police 5noc5 at the door, at which point the suspect comes to the doorway. ( 8)*6 ?noc9@and@Announce Rule An arrest warrant authorizes the police to enter a suspect8s home only if there is reason to believe the suspect is within. As with search warrants, the 5noc5"and"announce rule applies. >ven if the police believe the suspect is at home, they may not, absent special circumstances, forcibly enter a home to e0ecute an arrest warrant unless they first 5noc5, announce their purpose for entering, re/uest admittance, and are refused entry. Wilson v. /r+ansas, (*% #.$. &'< )*&&(,. ( 8)*8 #se of "orce in &a9in3 an Arrest .A/ 'eadly "orce The police !ay not use deadly force to !a#e an arrest except where: )*, the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical in)ury to the officer or others9 and )', the officer reasonably believes that such force is necessary to !a#e the arrest or prevent escape.
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&ennessee v. $arner, %<* #.$. * )*&;(, )an officer in pursuit of a suspect was reasonably sure! that the suspect was unarmed but fatally shot him when the suspect refused to stop fleeing, -f the officer can reasonably effectuate the arrest with non"deadly force, he must do so. Horeover, when feasible, the officer must warn the suspect to stop fleeing before deadly force is employed. .2/ Non@'eadly "orce All claims of e0cessive force by police, whether deadly or non"deadly, are to be evaluated according to the reasonableness! standard. $raham v. Connor, %&+ #.$. :;3 )*&;&,. Among the factors that may bear upon the reasonableness of the officer8s use of force in a given case are: the seriousness of the crime committed?being committed. the e0tent to which the suspect poses an immediate threat to the safety of others. the e0tent to which the suspect is resisting arrest or attempting to escape.
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Chapter : A'& N S$RA$ VE AN' NON@ NVES$ 4A$ORF SEARC%ES ( :)*1 2uildin3 nspections .A/ !arrant Re<uirement >0cept in the case of emergency or consent, a warrant is re/uired to enter a residential or commercial building for the purpose of conducting administrative health and safety inspections therein. 7owever, such warrant is not based on probable cause to believe there is criminal activity underfoot. Camara v. Muni!i0al Court, :;< #.$. (': )*&3<,, and See v. City of Seattle, :;< #.$. (%* )*&3<,. .2/ Administrati,e Pro-a-le Cause Standard -n Camara, the $upreme .ourt developed a special probable cause standard to apply in administrative search cases. -n such cases, probable cause e0ists to issue a warrant to inspect premises for administrative code violations as long as there are reasonable legislative or administrative standards! for conducting the inspection. Administrative probable cause does not re/uire individualized suspicion of wrongdoing and may be founded on the basis of general factors such as: the passage of time since the last inspection. the nature of the building in /uestion. the condition of the entire area to be searched. .C/ Exception to !arrant Re<uirement -n limited circumstances, warrantless, non"e0igent, nonconsensual administrative inspections of co!!ercial pre!ises are constitutional. A closely regulated! business may be inspected without a warrant if three conditions are met: )*, the administrative regulatory scheme !ust advance a substantial interest, such as to protect the health and safety of wor5ers9 )', warrantless inspections must be necessary to further the regulatory sche!e, i.e., if there is a significant possibility that the sub1ect of the search could conceal violations without the surprise element that the warrantless search would allow9 ):, the ordinance or statute that permits warrantless inspections must, by its terms, provide an ade"uate substitute for the warrant, such as rules that limit the discretion of the inspectors, regarding the time, place, and scope of the search. -e% 2or+ v. *urger, %;' #.$. 3&* )*&;<,. ( :)*+ 2order Patrol Searches .A/ At the 2order
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,outine border searches, without a warrant and in the absence of individualized suspicion of criminal conduct, are deemed to be reasonable. United States v. 4amsey, %:* #.$. 3+3 )*&<<,. Travelers may be detained at an international border or its functional e/uivalent! )e.g., an airport where an international flight arrives, for a brief search of their person and belongings. Furthermore, a person lawfully stopped at a border may be detained beyond the scope of a routine customs search if agents have reasonable suspicion of criminal activity. .2/ Near the 2order The reasonableness of searches and seizures conducted near but not at the actual border depends in part on whether they ta5e place at a fi0ed chec5point or as the result of a roving! border patrol. .1/ Ro,in3 2order Patrols Traditional Fourth Amendment standards apply to searches and seizures conducted by roving border patrol agents. Doving border patrol agents may not detain a person in a vehicle even briefly for /uestioning in the absence of reasonable suspicion of illegal presence in the country or other illegal activity. Factors that may 1ustify a brief seizure to determine whether the occupants of a vehicle are illegal aliens include: information about recent illegal border crossings in the area9 furtive behavior by the occupants of the vehicle9 and evidence that the car has an e0traordinary number! of passengers. Deasonable suspicion may not be based, however, e0clusively on the fact that occupants of the vehicle appear to be of foreign ancestry. United States v. *rignoni- on!e, %'' #.$. ;<: )*&<(, )roving border patrol agents improperly stopped a vehicle to /uestion the occupants solely on the ground that they appeared to be of He0ican ancestry,. .+/ "ixed nterior Chec9points Iehicles may be stopped and their occupants briefly detained for /uestioning at fi0ed chec5points, without individualized suspicion of wrongdoing. United States v. Martinez)uerte, %'; #.$. (%: )*&<3,. The .ourt distinguished fi0ed chec5points from roving border patrols on two grounds: )*, the lesser intrusion resulting from a fi0ed chec5point than random stops on the highway9 and )', the lesser discretion afforded officers maintaining the fi0ed chec5points than the roving patrols. ( :)*6 So-riety Chec9points
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A highway sobriety chec5point at which drivers were briefly detained )an average of '( seconds, to search for signs of into0ication was upheld despite the lac5 of individualized suspicion of driving under the influence. Mi!higan De0artment of State oli!e v. Sitz, %&3 #.$. %%% )*&&+,. The interest in eradicating drun5 driving was found to outweigh the slight! intrusion on drivers. ( :)*8 'ru3 nterdiction Chec9points A highway chec5point established for the purpose of detecting possession and?or use of illegal drugs has bee held to violate the Fourth Amendment. City of ,ndiana0olis v. (dmond, (:* #.$. :' )'+++,. As opposed to border and sobriety chec5points, which are designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety,! the drug interdiction chec5point was aimed at detecting evidence of ordinary cri!inal activity not related to the chec5point. Thus, when non"specific crime control is its aim, a chec5point !ust be based on individualized reasonable suspicion of wrongdoing. ( :)*: License and Vehicle Re3istration nspections $topping a vehicle solely for the purpose of chec5ing driver8s license and registration, without a reasonable suspicion that a motorist is unlicensed or the vehicle unregistered, is unreasonable under the Fourth Amendment.! Dela%are v. rouse, %%+ #.$. 3%; )*&<&,. 7owever, the .ourt in rouse indicated that a procedure to conduct suspicionless license? registration inspections that was less intrusive or did not involve the unconstrained e0ercise of discretion! might be permissible. ( :)*; 0Special Needs1 Searches .A/ n 4eneral The special needs! doctrine is another e0ception to the warrant and probable cause re/uirements of the Fourth Amendment. $pecial needs cases generally arise from searches by government actors other than police officers, such as school officials, public employers, and probation officers. The doctrine applies when the government can demonstrate that: )*, it is impracticable to obtain a warrant9 )', the governmental interest outweighs the intrusion9 ):, the i!!ediate ob)ective of the search is one other than to generate evidence for law enforcement purposes, even if the ultimate goal is non"criminal in nature. .2/ Searches of Personal Property and Premises .1/ Pu-lic School Students
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While the $upreme .ourt has recognized that public school students retain a legitimate e0pectation of privacy in the private property they bring to school, it has held that neither the warrant re/uirement nor the traditional doctrine of probable cause applies to public school searches. -e% "ersey v. &.3.', %3& #.$. :'( )*&;(,. =ublic school teachers and administrators may search students without a warrant if two conditions are met: )*, there are reasonable grounds to suspect that the search will reveal evidence that the student has violated or is violating either the law or a school rule9 and )', the search is not e0cessively intrusive in light of the student8s age and se0 and the nature of the suspected violation. .+/ Pu-lic Employees A public employer may search the office, including the des5 and file cabinets, of an employee suspected of employment infractions, without a warrant or probable cause under the special needs e0ception. '5Connor v. 'rtega, %;+ #.$. <+& )*&;<,. For a search to be reasonable, the employer must have reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of wor5"related misconduct, or that the search is necessary for a non$investigatory wor#$related purpose.! .6/ Pro-ationers The .ourt has approved a warrantless, non"e0igent search by a probation officer of the home of a probationer, based on reasonable grounds! to believe contraband would be discovered there, pursuant to a state regulation authorizing such searches. $riffin v. Wis!onsin, %;: #.$. ;3; )*&;<,. .C/ 'ru3 and Alcohol $estin3 .1/ Appro,ed $estin3 -n limited circumstances, drug and alcohol testing )by ta5ing blood, urine, or breath samples, of public employees and public school students, in the absence of a search warrant and in the absence of individualized suspicion, may be constitutional. The following general factors tend to render a drug?alcohol testing program constitutionally reasonable: )*, regardless of the ultimate goal of the testing, the i!!ediate ob)ective of the testing is not to generate evidence for cri!inal law enforce!ent purposes9 )', in an employment conte0t, persons being tested are wor#ing in an already highly regulated )ob9 in non"employment conte0ts, persons tested have a reduced expectation of privacy9 ):, in the employment conte0t, there is a significant relationship between the employee8s 1ob responsibilities and the employer8s concern about drug or alcohol use9 in non"employment conte0ts, there is a significant societal reason for identifying drug users or alcohol abusers9
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)%, procedures limit the ris5 of arbitrary application of the testing9 )(, care is ta5en to protect the dignity of persons tested in the specimen"collection process9 )3, a regime based on individualized suspicion would have been impracticable9 )<, there e0ists empirical evidence of a substantial need for the random testing program in /uestion. See S+inner v. 4ail%ay 3a#or (1e!utives5 /sso!iation, %;& #.$. 3+' )*&;&,9 -ational &reasury (m0loyees Union v. Von 4aa#, %;& #.$. 3(3 )*&;&, )upholding drug and alcohol testing of public employees, and Vernonia S!hool Distri!t 67" v. /!ton, (*( #.$. 3%3 )*&&(, )authorizing random drug testing of public school students voluntarily participating in school athletics programs where there was considerable evidence of a serious drug problem in the school district,. .+/ 'isappro,ed $estin3 Frug testing programs have been found not to pass the special needs test where: )*, the testing was not in response to any suspicion of drug use by the target group, Chandler v. Miller, ('+ #.$. :+( )*&&<, )stri5ing down Beorgia8s re/uirement that various candidates for state office pass a drug test where there was no fear or suspicion of drug use by state officials,. )', the i!!ediate ob)ective of the drug testing was to generate evidence for law enforce!ent purposes, even though the policy8s ultimate purpose! was a beneficent one, )erguson v. City of Charleston, *'* $. .t. *';* )'++*, )invalidating procedures to identify and non"consensually test any maternity patient suspected of drug use who came to a public hospital, where the policy was aimed at prosecuting drug"abusing mothers and forcing them into drug treatment programs,. -n cases where the special needs! e0ception does not apply, a valid search warrant is re/uired in order to conduct the testing.
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Chapter ; S$AN' N4 $O ASSER$ "O#R$% A&EN'&EN$ CLA &S ( ;)*1 Nature of "ourth Amendment Ri3hts Fourth Amendment rights are personal, not derivative. Thus, evidence seized in violation of one defendant8s Fourth Amendment rights may be admissible against a co"defendant unless the co"defendant has independent grounds to assert such claim. /lderman v. United States, :&% #.$. *3( )*&3&,. ( ;)*+ 0Le3itimate Expectation of Pri,acy1 Standard .A/ 4eneral Rule The modern test for determining whether a person has standing to contest a search on Fourth Amendment grounds is whether the person who claims the protection of the Amendment has a legiti!ate expectation of privacy in the invaded place.! 4a+as v. ,llinois, %:& #.$. *'; )*&<;, )passenger in a car failed to prove that he had any legitimate e0pectation of privacy in the areas searched, namely, in the loc5ed glove compartment and the area under the front passenger seat, and therefore, could not successfully claim the protections of the Fourth Amendment,. 4a+as re1ected the notion of target standing,! ruling that one does not possess standing to raise a Fourth Amendment claim simply because he was the target of the search that resulted in the seizure of evidence against him. .2/ Examples n,ol,in3 Residences An overnight guest may successfully challenge a search of another person8s residence. Minnesota v. 'lson, %&( #.$. &* )*&&+, )defendant, an overnight guest in his girl friend8s home, could challenge the police entry of the premises, notwithstanding the fact that defendant was never alone in the home, did not have a 5ey, and lac5ed dominion and control over the premises,. -n contrast, one who is !erely present in a residence, without further indicia of a reasonable e0pectation of privacy, may not claim the protections of the Fourth Amendment. -n Minnesota v. Carter, ('( #.$. ;: )*&&;,, out"of"town defendants came to another8s apartment for the sole purpose of pac5aging the cocaine, had never been to the apartment before and were only in the apartment for appro0imately ' *?' hours. The .ourt focused on three factors in finding that the defendants had no reasonable e0pectation of privacy in the apartment searched: )*, the purely commercial nature of the transaction engaged in there9 )', the relatively short period of time in the apartment9 and ):, the lac5 of any previous connections between the two defendants and the occupant of the apartment.
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.C/ Examples n,ol,in3 Automo-iles .1/ Automo-ile Out of OwnerAs Possession .ourts are split on the issue of whether the owner of an automobile has standing to challenge a search and seizure when the car is temporarily out of the owner8s possession at the time of the police conduct. Host courts hold that when a car owner lends his-her vehicle to another, at least if for a short duration, the owner !aintains a legiti!ate expectation of privacy in it and, therefore, can challenge a search of the car that ta5es place in the owner8s absence. A few courts have held that possession, and not ownership of the car is the 5ey. Therefore, an absent owner of an automobile lac5s standing to contest the search of his?her vehicle. Hore often, however, a court may rule that the owner lac5s standing if the owner gives another person co!plete control of the car and its contents for an extended period of ti!e, especially if the vehicle will be driven a considerable distance away from the owner. .+/ Search of Another PersonAs Automo-ile A non"owner occupant of an automobile may have standing to contest a search, under the test set forth in 4a+as 2%:& #.$. *';4. (.g., where the owner lends the car to the occupant for a period of time and the occupant has complete dominion and control of the automobile at the time of the search, the occupant may be found to have had a reasonable e0pectation of privacy in the automobile. $ome courts have held that a passenger does not have standing to contest a search and seizure of a vehicle in which the passenger is traveling.
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Chapter C EGCL#S ONARF R#LE ( C)*1 4eneral Rule >vidence gathered in violation of the Fourth Amendment is not admissible in a criminal trial against the defendant. ( C)*+ Exceptions to the Exclusionary Rule .A/ Non@$rial Criminal Proceedin3s -llegally seized evidence may constitutionally be introduced in a variety of non"trial criminal proceedings including: grand 1ury proceedings, preliminary hearings, bail proceedings, sentencing, and proceedings to revo5e parole. .2/ mpeachment at $rial A prosecutor may introduce evidence obtained from a defendant in violation of the defendant8s Fourth Amendment rights for the limited purpose of impeaching the defendant8s: )*, direct testimony9 or )', answers to legitimate /uestions put to the defendant during cross"e0amination. 7owever, such evidence may not be used to impeach other defense witnesses. "ames v. ,llinois, %&: #.$. :+< )*&&+,. .C/ 04ood "aith1 Exception .1/ n 4eneral >vidence obtained by a police officer in reasonable reliance on a search warrant that is subse/uently found invalid may be admissible. United States v. 3eon, %3; #.$. ;&< )*&;%,. -t is necessary that a reasonably well"trained officer would have believed that the warrant was valid. This has come to be 5nown as the good faith! or 3eon e0ception to the e0clusionary rule. Hany states, however, have re1ected this e0ception. .+/ Circumstances Su33estin3 n,alidity of !arrant .ircumstances which should suggest to a police officer that a search warrant is not valid include: )*, the magistrate who issued the warrant relied on information supplied by an affiant who 5new that the statements in the document were false or who rec5lessly disregarded the truth9 )', the magistrate8s behavior was so lac5ing in neutrality that it would have been apparent to a reasonable officer, e.g., where the magistrate acts as a rubber stamp for the police by signing the warrant without reading it, while in the presence of the officer who later claims reliance9
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):, the warrant is based on an affidavit lac5ing sufficient indicia of reliability, e.g., if a warrant is issued based on a wholly conclusory affidavit9 )%, the warrant is facially deficient in that it fails to particularize the place to be searched or the things to be seized. .6/ mproperly Executed !arrants The 3eon 2%3; #.$. ;&<4 good faith! rule does not cure im0ro0erly e1e!uted warrants. .8/ Extension of 4ood "aith Exception The good"faith e0ception has been e0tended to a non$warrant search based on an error made by a court employee, rather than by a police officer. /rizona v. (vans, (*% #.$. * )*&&(, )a police officer relied on a clerical error made by a court employee9 because of the error, the patrol car computer showed that there was an outstanding misdemeanor warrant for defendant8s arrest9 a subse/uent warrantless search of the defendant8s car incident to the arrest revealed mari1uana,. ( C)*6 0"ruit of the Poisonous $ree1 'octrine -n general, the e0clusionary rule e0tends not only to the direct products of an unconstitutional search and seizure but also to ancillary evidence that results from the illegal search. The fruit"of"the"poisonous"tree doctrine is sub1ect to three /ualifications: )*, the independent source doctrine9 )', the inevitable discovery rule9 and ):, the attenuated connection principle. .A/ ndependent Source 'octrine >vidence that is not causally lin5ed to unconstitutional governmental activity is admissible pursuant to the independent source doctrine. The doctrine applies if the challenged evidence is: )*, first discovered during lawful police activity9 or )', initially discovered unlawfully, but is later obtained lawfully in a !anner independent of the original discovery. Murray v. United States, %;< #.$. (:: )*&;;,. .2/ ne,ita-le 'isco,ery Rule >vidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means.! -i1 v. William, %3< #.$. %:* )*&;%,. .C/ Attenuated Connection Principle
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>vidence that otherwise /ualifies as fruit"of"the"poisonous"tree may be admissible if its connection with the illegal police activity is so attenuated that it is purged of the taint. -ardone v. United States, :+; #.$. ::; )*&:&,9 Wong Sun v. United States, :<* #.$. %<* )*&3:,. Factors that may influence whether fruit of the poisonous tree evidence is purged of its taint include: .1/ $emporal Proximity The shorter the time lapse between the Fourth Amendment violation and the ac/uisition of the challenged evidence, the more li5ely it is that a court will conclude that the evidence is tainted. For e0ample, in Wong Sun 2:<* #.$. %<*4, the police obtained a statement from the defendant in his bedroom immediately after his unlawful arrest. The .ourt suppressed this evidence, which derive2d4 so immediately from the unlawful entry.! .+/ nter,enin3 E,ents The more factors that intervene between the Fourth Amendment violation and the seizure of the challenged evidence, the more li5ely it is that the evidence will be deemed to have lost its taint. .a/ nter,enin3 Act of "ree !ill An intervening act of free will can remove the taint of an earlier Fourth Amendment violation. For e0ample, in Wong Sun 2:<* #.$. %<*4, upon his release from 1ail after his unlawful arrest, the defendant later voluntarily returned to the police station and provided a written statement. The .ourt found that the voluntary nature of the defendant8s conduct removed from his statement any statement from the initial violation. 7owever, the .ourt has warned that Miranda 2Miranda v. /rizona, :;% #.$. %:3 )*&33,4 warnings alone cannot convert a confession following a Fourth Amendment violation into a product of free will, brea5ing the lin5 between the statement and the violation. *ro%n v. ,llinois, %'' #.$. (& )*&<(,. Therefore, if the police arrest a suspect on less than probable cause, administer Miranda warnings, obtain a waiver from the suspect, and thereafter secure a confession, the /uestion of whether the subse/uent statement was the product of the suspect8s free will must be determined based on the totality of the circumstances. .-/ Payton ,iolation Where the police have probable cause to arrest a suspect, the e0clusionary rule does not bar the $tate8s use of a statement made by the defendant outside of his home, even when he was arrested in his home without a warrant in violation of ayton. -e% 2or+ v. .arris, %&( #.$. *% )*&&+,.
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.6/ "la3rancy of the Violation Fruit of the poisonous tree evidence is less li5ely to be free of taint if the Fourth Amendment violation was flagrant rather than unintentional. .8/ Nature of the 'eri,ati,e E,idence $ome evidence, by its nature, is more susceptible to dissipation of the taint than other evidence, e.g., verbal evidence is more li5ely to be admissible than physical evidence.
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Chapter D PR V LE4E A4A NS$ SEL"@ NCR & NA$ ON ( D)*1 $ext and nterpretation of the Pri,ile3e A3ainst Self@ ncrimination The Fifth Amendment to the #nited $tates .onstitution provides in relevant part that .n/o person . . . shall be co!pelled in any cri!inal case to be a witness against hi!self.! .A/ 0Person1 The privilege against self"incrimination applies only to natural persons. -t may be invo5ed by witnesses as well as defendant)s,. .orporations, associations, partnerships, and other entities cannot avail themselves of the privilege )the collective entity! doctrine,, but a sole proprietor may. .2/ 0Compelled1 The Fifth Amendment is violated when the government compels a person, by physical or mental force, to provide incriminating oral or documentary testimonial evidence, e.g., forced confessions. 2See .hapter *+, .onfessions.4 .C/ 0Criminal Case1 One may invo5e the privilege against self"incrimination in any civil or cri!inal proceeding, whether formal or informal @ e.g., grand 1ury proceedings, trials, administrative hearings, police interrogations @ where statements could be used to incriminate him in a subse/uent criminal proceeding. 3ef+o%itz v. &urley, %*% #.$. <+ )*&<:,. The privilege is available only where the possible conse/uence of the incriminating statement is criminal prosecution9 it may not be invo5ed to shield against personal disgrace, loss of employment, or civil confinement. .'/ 0!itness A3ainst %imself1 .1/ $estimonial E,idence A person is deemed a witness against himself! when he provides incriminating testi!onial or co!!unicative evidence. >vidence is of a testimonial or communicative nature if it e0presses, either directly or indirectly, a factual assertion or one8s thoughts about the commission of a crime. Doe v. United States, %;< #.$. '+* )*&;;,. The communication can be verbal, such as an oral confession, or non"verbal, such as nodding or sha5ing one8s head or ma5ing other gestures that communicate thoughts or facts. #nder some circumstances, an incorrect answer to an otherwise non"incriminating statement may also be deemed testimonial. -n ennsylvania v. Muniz, %&3 #.$. (;'
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)*&&+,, a drun5 driving case, the .ourt held that an incorrect answer regarding the date of the suspect8s si0th birthday was testimonial as it supported the factual inference that the defendant's !ental faculties were i!paired. )The .ourt distinguished the incorrect answer, which reflected his mental processes, from the slurred nature of his words in general, which were deemed to be physical evidence., The privilege generally applies to docu!entary evidence as well if the documents incriminate the person compelled to produce them. 7owever, as the privilege against self"incrimination is personal, it may not be asserted by a third"party )e.g., a suspect8s accountant, who is compelled to produce documents that incriminate another. .+/ Physical E,idence The Fifth Amendment does not preclude the government from compelling a person to provide real or physical evidence. S!hmer#er v. California, :;% #.$. <(< )*&33, )upholding compulsory ta5ing of a blood sample in order to test for alcohol after the defendant was arrested for driving under the influence,. Speech does not always constitute testimonial evidence and !ay be dee!ed physical evidence, for e0ample: a suspect in a lineup compelled to spea5 the words allegedly spo5en by the perpetrator of the crime under investigation for the purpose of voice recognition. a compelled writing sample used to analyze the handwriting itself, not the content. slurred speech, suggestive of into0ication. Other conduct producing evidence that is deemed physical rather than communicative, and therefore, to which the privilege does not apply, includes: putting on clothing to see if it fits. standing in a lineup. moving one8s eyes or wal5ing on a straight line as part of a sobriety test. giving blood after being arrested for driving under the influence of alcohol. ( D)*+ mmunity -f a 1udge determines that a witness has legitimately asserted the privilege against self" incrimination regarding a given matter, the prosecution cannot compel the witness to testify as to that matter unless the government obtains an immunity order. An immunity order re/uires the witness to testify while providing him with at least as much protection as the privilege itself. Two forms of immunity may be granted to a witness. %ransactional i!!unity protects a witness from prosecution for any offense that is the sub1ect of the /uestioning. Use i!!unity permits prosecution of the witness regarding the matter on which he is /uestioned but precludes admission of the compelled testimony at his criminal trial.
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( D)*6 Exceptions to the Pri,ile3e A3ainst Self@ ncrimination The privilege against self"incrimination applies to situations where the statements could be used in a criminal proceeding. Thus, testimonial evidence, even if incriminating may be compelled in a variety of non"criminal conte0ts. .A/ Re<uired@Records 'octrine #nder the re/uired"records! doctrine, a party may be compelled to produce documents that it is re/uired by law to maintain. The doctrine applies where the statutory record" 5eeping re/uirement is: )*, imposed in an essentially non"criminal and regulatory area9 )', directed at the public at large, not at a select group inherently suspect of criminal activities9 and ):, rationally related to the regulatory purpose. See, e.g., Sha0iro v. United States, ::( #.$. * )*&%;, )upholding the constitutionality of federal regulations issued under the >mergency =rice .ontrol Act, which re/uired certain licensed businesses to maintain records of their business activities and to ma5e them available for inspection by the government upon re/uest,9 California v. *yers, %+' #.$. %'% )*&<*, )upholding a state hit"and"run statute that re/uired drivers involved in a vehicular accident to stop at the scene and report name and address,. .2/ O-Bect of Re3ulatory nterest The ability to invo5e the privilege against self"incrimination is limited when a person assu!es control over ite!s or persons that are the legiti!ate ob)ect of the govern!ent's non$cri!inal regulatory authority. -n *altimore City De0artment of So!ial Servi!es v. *ou+night, %&: #.$. (%& )*&&+,, the $upreme .ourt ruled that a mother who had previously lost custody of her child because of suspected child abuse, but was permitted temporary custody of the child sub1ect to various court conditions, could not assert the privilege against self"incrimination to resist compliance with a subse/uent court order that she produce the child or otherwise reveal his whereabouts. Eecause the child8s care and safety had become an ob1ect of the state8s regulatory concern, the mother, upon accepting temporary custody of the child, became sub1ect to the routine operation of the regulatory system! and thus was re/uired to comply with its re/uirements.
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Chapter E C#S$O' AL N$ERRO4A$ ON ( E)*1 0iranda v. rizona The landmar5 case of Miranda v. /rizona, :;% #.$. %:3 )*&33,, resulted from the consolidation of four cases on appeal. -n each case, the suspect was ta5en into custody, /uestioned in a police interrogation room in which the suspect was alone with the interrogators, and never informed of his privilege against self"incrimination. Miranda held that any statement, whether e0culpatory or inculpatory, obtained as the result of custodial interrogation could not be used against the suspect in a criminal trial unless the police provided procedural safeguards effective to secure the suspect8s privilege against compulsory self"incrimination. .ustodial interrogation! is defined in Miranda as /uestioning initiated by law enforcement officers after a person has been ta5en into custody or otherwise deprived of his freedom of action in any significant way.! ( E)*+ 0Custody1 A person is deemed to be in custody if he is deprived of his freedo! of action in any significant way. .ustody! re/uires the e0istence of coercive conditions that would cause a reasonable person to believe, under all the circumstances surrounding the interrogation, that he is not free to go. 6ot all coercive environments e/uate to custody.! For e0ample, a police interrogation room may be deemed a coercive environment but the totality of the circumstances may indicate that a person is not in custody @ e.g., he came to the police station voluntarily, was informed prior to /uestioning that he was not under arrest, and he was free to leave the police station at any time. See 'regon v. Mathiason, %'& #.$. %&' )*&<*,9 California v. *eheler, %3: #.$. **'* )*&;:,. Erief detention by the police li5ewise does not necessarily put one in custody, for e0ample, brief /uestioning during a routine traffic stop or roadbloc5. *er+emer v. M!Carty, %3; #.$. %'+ )*&;%,. ( E)*6 0 nterro3ation1 For purposes of Miranda 2:;% #.$. %:34, interrogation! refers to express "uestioning or its functional e"uivalent, i.e., any words or actions on the part of the police )other than those normally attendant to arrest and custody, that the police should 5now are reasonably li#ely to elicit an incri!inating response from the suspect.! 4hode ,sland v. ,nnis, %%3 #.$. '&* )*&;+,. For e0ample, if the police 5now the person in custody may be susceptible to certain forms of persuasion, any statements or actions designed to play upon such susceptibilities may be deemed the functional e/uivalent of interrogation.
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-n ,nnis, a murder suspect was being transported to the police station when the police commented that they hoped that the murder weapon, which had not yet been located, would not be found by any children from a nearby school for the handicapped. -n response, the suspect, who had previously re/uested a lawyer, revealed the location of the gun. The .ourt held that the comments were not the functional e/uivalent of interrogation because it found: )*, the comments were brief9 )', the comments were not particularly evocative9 ):, the suspect was not disoriented or upset when the comments were made9 )%, there was no evidence that the police should have 5nown that the suspect would be susceptible to an appeal to his conscience. ( E)*8 Procedural Safe3uardsH $he 00iranda !arnin3s1 .A/ Content of 0iranda !arnin3s The .ourt in Miranda 2:;% #.$. %:34 noted that .ongress and the states are free to develop procedural safeguards for protecting a suspect8s Fifth Amendment rights during custodial interrogation. 7owever, unless they are fully as effective! as those described in Miranda, the police must apprise the suspect issue, prior to custodial interrogation, that: )*, the suspect has a right to remain silent9 )', anything said can and will be used against the suspect in court9 ):, the suspect has the right to consult with a lawyer and to have his lawyer present during interrogation9 )%, if the suspect is indigent a lawyer will be appointed to represent him. .2/ Ri3ht to Remain Silent Miranda 2:;% #.$. %:34 states that, once warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. The police must honor a suspect8s right to silence after he asserts the privilege but are not necessarily precluded from attempting to interrogate the suspect under different circumstances. See Mi!higan v. Mosley, %': #.$. &3 )*&<(, )holding that the police did not violate the defendant8s Fifth Amendment rights when the interrogation ceased immediately upon re/uest9 two hours elapsed9 the subse/uent /uestioning was by a different officer, in a different location, for a different crime9 and Miranda warnings were restated,. .C/ Ri3ht to Counsel 'urin3 nterro3ations .1/ "ifth Amendment Ri3ht When a suspect in custody invo5es his right under Miranda 2:;% #.$. %:34 to consult with an attorney, the police must cease the interrogation until the suspect8s attorney is present unless the suspect initiates further communication, e0changes, or conversations!
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with the police. (d%ards v. /rizona, %(* #.$. %<< )*&;*,. This rule is intended to prevent police from badgering a defendant into waiving his previously asserted Miranda rights! and applies to all interrogation, including /uestioning about crimes other than the one for which the suspect is in custody. 7owever, the (d%ards rule does not apply unless a suspect una!biguously asserts his right to counsel. Davis v. United States, (*' #.$. %(' )*&&%,. Furthermore, once a suspect in custody invo5es his Miranda 2:;% #.$. %:34 right to counsel, the police may not re"initiate interrogation at any ti!e thereafter unless counsel is present. Minni!+ v. Mississi00i, %&; #.$. *%3 )*&&+,. Where the suspect initiates communications with the police in the absence of counsel, the police may recommence interrogation upon obtaining a valid waiver of his Fifth Amendment rights. A suspect initiates co!!unications, exchanges or conversations by any comment or in/uiry that indicates his desire to engage in a discussion relating directly or indirectly to the investigation. .omments or in/uiries relating to routine incidents of the custodial relationship,! such as a re/uest for water or to use a telephone, do not /ualify as communications, e0changes, or conversations! and thus do not properly trigger further police interrogation. 'regon v. *radsha%, %3' #.$. *+:& )*&;:,. .+/ Sixth Amendment Ri3ht The right to counsel guaranteed as a result of Miranda v. /rizona 2:;% #.$. %:34 falls within the protections of the Fifth Amendment and is available to a suspect upon being ta5en into custody. This right differs in various respects from the right to counsel in the $i0th Amendment, which, with the e0ception of the ruling in (s!o#edo v. ,llinois, :<; #.$. %<; )*&3%, )a pre"Miranda decision,, has been held to attach only upon commencement of criminal proceedings, e.g., upon filing of an indictment. 2See .hapter **, $i0th Amendment Dight to .ounsel: -nterrogation.4 ( E)*: !ai,er of 0iranda Ri3hts .A/ Elements of Valid !ai,er Miranda 2:;% #.$. %:34 states that a valid waiver of Fifth Amendment rights during interrogation could! be found when, after the reading of Miranda rights, a suspect expressly states a willingness to ma5e a statement, without the presence of an attorney, followed closely! by such statement. The validity of the waiver must be based on an assessment of Jthe particular facts and circumstances surrounding that case, including the bac5ground, e0perience, and conduct of the accused.8 ! (d%ards v. /rizona, %(* #.$. at %;' )/uoting "ohnson v. 8er#st, :+% #.$. %(;, %3% )*&:;,,. .2/ Voluntary7 ?nowin37 and ntelli3ent !ai,er
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-n order to be valid, a waiver must have been given voluntarily, 5nowingly, and intelligently.! Colorado v. Connelly, %<& #.$. *(< )*&;3,. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception.! A 5nowing and intelligent waiver is made with full awareness of both the nature of the right being abandoned and the conse/uences of the decision to abandon it.! Moran v. *ur#ine, %<( #.$. %*' )*&;3,. A waiver cannot be deemed 5nowing and intelligent! unless the police issued proper Miranda 2:;% #.$. %:34 warnings. .C/ Express and mplied !ai,er A valid waiver may not be presumed simply from the suspect8s silence following reading of the Miranda 2:;% #.$. %:34 warnings or from the fact that he confesses. 6evertheless, an e0press statement of waiver is not invariably necessary. -orth Carolina v. *utler, %%* #.$. :3& )*&<&,. -n some cases, waiver may be clearly inferred from the suspect8s words and actions that follow Miranda warnings, although the $upreme .ourt has given little guidance on when such circumstances e0ist. ( E)*; napplica-ility of 0iranda .A/ nterro3ation -y #nderco,er Police Miranda 2:;% #.$. %:34 warnings are not re/uired if the suspect being /uestioned is unaware that the interrogator is a police officer. ,llinois v. er+ins, %&3 #.$. '&' )*&&+, )an undercover police agent, posing as a criminal, was positioned in the defendant8s cellbloc5 and engaged the defendant in a conversation designed to elicit details of the crime for which he was suspected9 the .ourt held that such statements, although the result of interrogation while in custody, and in the absence of Miranda warnings, were admissible,. .2/ Physical E,idence $ince the privilege against compulsory self"incrimination applies only to testimonial or communicative evidence, Miranda 2:;% #.$. %:34 warnings are not re/uired in order for the police to compel the production of physical or real evidence, such as a blood, breath, or handwriting sample. 2See .hapter ;, =rivilege Against $elf"-ncrimination.4 .C/ Exi3ent Circumstances A public safety e0ception to Miranda 2:;% #.$. %:34 allows the police to interrogate a suspect prior to Miranda warnings if an e0igency e0ists that re/uires immediate police action to ensure public safety, e.g., to locate a loaded weapon in a public place. The /uestions as5ed prior to issuance of the warnings must be directed at the e0igent circumstances only. -e% 2or+ v. 9uarles, %3< #.$. 3%& )*&;%, )observing that the defendant, who had 1ust attac5ed a woman and then fled into a grocery store, had an
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empty shoulder holster, an officer validly as5ed the defendant, without issuing Miranda warnings, where the gun was,. .'/ Routine 2oo9in3 Iuestions Miranda 2:;% #.$. %:34 warnings need not be issued prior to as5ing a suspect in custody routine boo5ing /uestions, such as name, address, date of birth, and other biographical data necessary to complete the boo5ing process. ennsylvania v. Muniz, %&3 #.$. (;' )*&&+,. ( E)*C Exclusionary Rule #nder 0iranda .A/ mpeachment Exception A statement obtained in violation of Miranda 2:;% #.$. %:34 may be used to impeach a defendant at trial. .arris v. -e% 2or+, %+* #.$. ''' )*&<*,. .2/ "ruit@of@the@Poisonous@$ree 'octrine The $upreme .ourt has interpreted Miranda 2:;% #.$. %:34 to not support the fruit$of$ the$poisonous$tree doctrine. Mi!higan v. &u!+er, %*< #.$. %:: )*&<%, )the government may call a witness to testify at trial, even if that witness8s identity became 5nown as a result of a statement by defendant secured in violation of Miranda,9 'regon v. (lstad, %<+ #.$. '&; )*&;(, )the government may introduce a defendant8s own voluntary, post" Miranda, admissions, even if they were obtained as a result of an earlier Miranda violation,. 7owever, &u!+er 2%*< #.$. %::4 and (lstad 2%<+ #.$. '&;4 were based on the premise that Miranda 2:;% #.$. %:34 was a prophylactic! but not a constitutional rule. $ubse/uently, the .ourt in Di!+erson v. United States, (:+ #.$. %'; )'+++,, departed from the reasoning in &u!+er and stated that Miranda was in fact a constitutional decision. 6evertheless, the .ourt has not thus far reversed its position on the inapplicability of the fruit"of"the"poisonous"tree doctrine to statements obtained in violation of Miranda.
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Chapter 1* CON"ESS ONS ( 1*)*1 Voluntary Confessions A confession that is freely and voluntarily made, following proper Miranda 2:;% #.$. %:34 warnings, is admissible against the defendant at a criminal trial. The voluntariness of a confession is to be assessed from the totality of all the circumstances, ta5ing into account both the characteristics of the accused and the details of the interrogation. ( 1*)*+ n,oluntary Confessions A confession that results from police coercion violates the Fifth Amendment privilege against compulsory self"incrimination. The following factors may negate the voluntariness of a confession. .A/ Actual or $hreatened Physical "orce A confession obtained by threatened or actual use of violence is inadmissible. .onfessions have also been invalidated when the police have warned! a suspect that, unless he confesses, he may be the victim of mob violence or deadly attac5s from fellow prisoners. .2/ 'epri,ation .onfessions have been suppressed in cases in which the police deprived a suspect of food, water, or sleep, for an e0tended period of time. .C/ Psycholo3ical Pressures Among the relevant factors that determine whether undue psychological pressure was imposed on a suspect are: length of custodial detention. whether the interrogation was prolonged. whether the /uestioning occurred in the daytime or at night. whether the interrogation is conducted incommunicado. the personal characteristics of the suspect )e.g., age, intelligence, level of education, psychological ma5eup, and prior e0perience with the police,. .'/ Promises of Leniency A confession is not necessarily a product of coercion where the police e0pressly or implicitly promise leniency in e0change for the suspect8s cooperation. /rizona v. )ulminante, %&& #.$. '<& )*&&*, )repudiating *ram v. United States, *3; #.$. (:'
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)*;&<,, which held that a confession was involuntary if it was obtained by any promise for leniency, however slight!,. Aower courts have determined that some types of promises of leniency will render a confession involuntary, such as assurances that some of the charges will be dropped or that the defendant will receive a reduction in punishment. 7owever, standing alone, courts rarely invalidate a confession based on a mere promise by the police to bring the defendant8s cooperation to the prosecutor8s attention, or promise that a prosecutor will discuss leniency in e0change for a confession, without in fact ma5ing any assurances as to results. .E/ $hreat of %arsh Le3al $reatment A confession procured by a threat of especially harsh treatment @ directed at the suspect himself or another @ may be invalid. (.g., 4ogers v. 4i!hmond, :3( #.$. (:% )*&3*, )suppressing a confession as involuntary because it was secured in response to a wrongful police threat to ta5e the suspect8s wife into custody,. $ome lower courts have ruled that a confession is involuntary if the police threaten to inform the prosecutor of a suspect8s refusal to cooperate, since this is a threat to penalize the suspect for asserting his privilege against compulsory self"incrimination. ."/ 'eception Feception about the strength of the case against the suspect : e.g., if the police falsely inform a suspect that an accomplice has already confessed @ without more, generally will not invalidate a confession, although it may be a factor weighed in an assessment of the voluntariness of the confession. ( 1*)*6 Exclusionary Rule .A/ mpeachment A coerced confession is inadmissible at the defendant8s criminal trial for all purposes, including impeachment. .2/ "ruit@of@the@Poisonous@$ree 'octrine The $upreme .ourt has not e0pressly addressed whether the fruit"of"the"poisonous"tree doctrine applies to coerced confessions, but it is generally assumed that the doctrine does apply in such circumstances.
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Chapter 11 S G$% A&EN'&EN$ R 4%$ $O CO#NSELH N$ERRO4A$ ON ( 11)*1 $ext of Sixth Amendment The $i0th Amendment reads in relevant part: -n all criminal prosecutions, the accused shall . . . have the Assistance of counsel for his defence.! ( 11)*+ !hen the Ri3ht Attaches The $i0th Amendment right to counsel e0ists for criminal prosecutions.! Thus, the right attaches only upon co!!ence!ent of adversary )udicial proceedings, such as preliminary hearing, indictment, information, or arraignment. *re%er v. Williams, %:+ #.$. :;< )*&<<,. ( 11)*6 0'eli-erate Elicitation1 The $i0th Amendment has been interpreted to prohibit the government from deliberately eliciting incriminating information from an accused, in the absence of defense counsel, once adversary 1udicial criminal proceedings have commenced. Massiah v. United States, :<< #.$. '+* )*&3%,. An investigatory techni/ue constitutes elicitation if it is the e/uivalent of direct police interrogation.! Kuhlmann v. Wilson, %<< #.$. %:3 )*&;3,. 1eliberate elicitation occurs when the government through its overt or covert police agent: )*, acts with the purpose of eliciting incriminating information from the accused regarding the pending charges, without regard to the li5elihood that the elicitation will be successful9 or )', creates an opportunity for the accused to ma5e incriminating statements about the pending charges. .A/ Police Acts !ith Purpose >0amples of purposeful police conduct that may elicit incriminating statements from the accused include: an officer formally interrogates the accused. an undercover agent engages the accused in a conversation about the criminal activity. an officer ma5es statements that are designed to play on the conscience of the accused in order to induce incriminating remar5s. .2/ Police Create an Opportunity for ncriminatin3 Statements
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Feliberate elicitation may be found where the government creates a situation li#ely to induce the defendant to ma5e incriminating statements. For e0ample, in United States v. .enry, %< #.$. '3% )*&;+,, the FE- placed an informant @ who was to be paid on a contingent basis @ in the defendant8s 1ail cell after he had been indicted. The FE- advised the informant to be alert to any statement! the defendant made, but not to initiate any conversations with the defendant or as5 him /uestions. 6evertheless, the informant engaged the defendant in conversation, during which he made incriminating statements that the government sought to introduce at his trial. Focusing on several factors, including that the paid informant had an incentive to elicit information from the defendant, the .ourt found that the government had created an opportunity for the accused to incriminate himself, in the absence of counsel, thereby violating his $i0th Amendment right. The government may be found to have unlawfully created an opportunity for the accused to incriminate himself in violation of the $i0th Amendment even if the encounter with an infor!ant or undercover agent is initiated by the accused himself. -n Maine v. Moulton, %<% #.$. *(& )*&;(,, subse/uent to the defendant8s indictment, the police installed a recording device on an informant8s telephone. The defendant, unaware of such action, telephoned the informant three times, during which he discussed the criminal charges against them. The $upreme .ourt again held that the defendant8s $i0th Amendment right to counsel was violated by the government8s creation of an opportunity for defendant to incriminate himself, irregardless of the fact that the defendant initiated the conversations. 7owever, if a government agent does no !ore than listen, without proactively inducing the accused to ma5e incriminating statements @ such as by placing an undercover agent or informant in an accused8s 1ail cell and merely reporting the accused8s unsolicited incriminating statements @ such action does not constitute deliberate elicitation. ( 11)*8 0Offense@Specific1 Nature of the Ri3ht The $i0th Amendment is offense"specific, i.e., the interrogation that is the sub1ect of the $i0th Amendment in/uiry !ust relate to the cri!e for which cri!inal proceedings have co!!enced. M!-eil v. Wis!onsin, (+* #.$. *<* )*&&*,. The $i0th Amendment right to counsel does not attach to other crimes for which the accused may be under investigation but which are unrelated to the pending prosecution. For purposes of determining whether the $i0th Amendment covers a given crime, &e1as v. Co##, (:' #.$. *3' )'++*,, clarified that: )*, the $i0th Amendment does not necessarily e0tend to offenses that are factually related! to those for which the accused has been formally charged9 )', the term offense! is not necessarily limited to the four corners of a charging instrument!9 ):, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or
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only one, is whether each provision re"uires proof of a fact which the other does not.! *lo!+#urger v. United States, ';% #.$. '&& )*&:', )the test applied for double 1eopardy purposes, e0tended to the $i0th Amendment conte0t by Co##,. ( 11)*: !ai,er of the Ri3ht to Counsel .A/ !hen the Accused Re<uests Counsel Once the $i0th Amendment right to counsel attaches, and the accused re"uests counsel, the government !ay not initiate conversation with the accused relating to the crime at hand in the absence of counsel, even if the accused waives the right in response to the police elicitation. 7owever, if the accused initiates conversation with the police, and waives his right to counsel, interrogation in the absence of counsel may proceed. Mi!higan v. "a!+son, %<( #.$. 3'( )*&;3, )defendant was appointed counsel whom he had not yet met when the police contacted the defendant, read him his Miranda 2:;% #.$. %:34 rights, obtained a waiver, and /uestioned him, even though the defendant had as5ed for his lawyer several times9 the .ourt held that the waiver was invalid because the police initiated the conversation after the defendant had re/uested counsel,. .2/ !hen the Accused 'oes Not Re<uest Counsel .1/ 2efore Counsel is Appointed or %ired 2n the absence of a re"uest for counsel after the right attaches, the police are per!itted to see# fro! the accused a waiver of his right to counsel. atterson v. ,llinois, %;< #.$. ';( )*&;;, )upholding the admissibility of the post"indictment statements made after issuance of Miranda 2:;% #.$. %:34 warnings and procurement of a waiver of the right to counsel, where at the time of the post"indictment /uestioning, the defendant had not yet retained, or accepted by appointment, a lawyer to represent him,. .+/ After Counsel is Appointed or %ired The $upreme .ourt has not directly addressed the issue of whether a waiver is valid where counsel has been appointed but the accused has not actually re/uested to meet with his lawyer. 7owever, in a footnote in atterson 2%;< #.$. ';(4, the .ourt hinted that once counsel has been appointed or hired, the police may not see5 a waiver of the right to counsel from the defendant until he has had the opportunity to meet with counsel )stating that it was a matter of some significance! that the defendant, whose waiver of right to counsel was found valid, had not yet retained or been appointed counsel,. A footnote in Co## 2(:' #.$. *3'4, however, calls this position into /uestion )stating there is no Jbac5ground principle8 of our $i0th Amendment 1urisprudence establishing that there may be no contact between a defendant and police without counsel present!,, suggesting that a waiver may be valid if the accused does not re/uest assistance of counsel even if counsel has been appointed.
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.C/ Sufficiency of !ai,er As with waiver of the right to counsel during custodial interrogation, a waiver of the right to counsel prior to post"indictment interrogation must be voluntary and made 5nowingly and intelligently.! 2See .hapter &, .ustodial -nterrogation.4 ( 11)*; Scope of the Sixth Amendment Exclusionary Rule .A/ mpeachment The .ourt has addressed whether a statement secured in violation of the $i0th Amendment may be used for impeachment purposes in only a limited conte0t. -f the police initiate conversation with an accused who has re/uested counsel, in violation of the rule in Mi!higan v. "a!+son, incriminating statements may be used for impeachment if the accused subse/uently waived the right, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution8s direct case. Mi!higan v. .arvey, %&% #.$. :%% )*&&+,. .2/ "ruit@of@the@Poisonous@$ree 'octrine The fruit"of"the"poisonous"tree doctrine applies to violations of the $i0th Amendment right to counsel. See -i1 v. Williams, %3< #.$. %:* )*&;%,. 2See .hapter <, >0clusionary Dule.4 ( 11)*C Comparison of Ri3ht to Counsel 'urin3 nterro3ations #nder Sixth Amendment and 0iranda The right to counsel under the $i0th Amendment and the Fifth Amendment Miranda 2:;% #.$. %:34 decision differ in the following ways: )*, $imin3 @ The $i0th Amendment right applies only after adversary 1udicial criminal proceedings have been initiated against the accused9 the Fifth Amendment right attaches once the defendant is ta5en into custody. )', Custody @ The Fifth Amendment right does not attach unless the suspect is in custody9 the $i0th Amendment is not so limited, e.g., it applies when the accused has been released from custody on bail or on his own recognizance. ):, Nature of offense @ The $i0th Amendment right is offense"specific9 the Fifth Amendment right to counsel applies to any and all offenses, once custodial interrogation commences. )%, "ocus of in<uiry @ The Fifth Amendment right to counsel applies when the custodial suspect is interrogated,! and focuses on the perceptions of the suspect )whether he believes he is in custody,9 the $i0th Amendment prohibits deliberate elicitation,! and focuses on the intentions of the police. )(, Iuestionin3 -y underco,er a3ent or informant @ The Fifth Amendment right to counsel is not invo5ed when the suspect is /uestioned by an informant or
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undercover officer9 the $i0th Amendment applies to deliberate elicitation by overt and covert government agents. )3, "ruit@of@the@poisonous@tree doctrine @ The doctrine applies to $i0th Amendment violations9 the doctrine does not apply to violations of the Fifth Amendment right to counsel. )<, mpeachment @ $tatements secured in violation of the Fifth Amendment right may be used for impeachment purposes9 statements secured in violation of the $i0th Amendment "a!+son 2%<( #.$. 3'(4 rule may be used for impeachment.
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Chapter 1+ EFE! $NESS 'EN$ " CA$ ON ( 1+)*1 Ri3ht to Counsel at Line@ups An accused has a $i0th Amendment right to have counsel present at any corporeal identification procedure conducted after the commencement of an adversary 1udicial criminal proceeding against him. This rule is 5nown as the Wade"Kir#y doctrine) United States v. Wade, :;; #.$. '*; )*&3<, )recognizing that a person is entitled to the assistance of counsel at all critical stages of a cri!inal proceeding, and determining that the pretrial e0hibition of a suspect to a witness for identification purposes is a critical stage of the prosecution,9 Kir#y v. ,llinois, %+3 #.$. 3;' )*&<', )the right to counsel does not apply to pre"indictment eyewitness identification,. -f counsel is not present at the post"indictment lineup, and the accused has not waived counsel, results of the out"of"court identification are inadmissible. -n such cases, the prosecution is furthermore precluded from obtaining an in$court identification of the accused by the same witness, unless it proves by clear and convincing evidence that the in"court identification does not constitute fruit"of"the"poisonous"tree evidence. Among the factors that may be considered are: the prior opportunity of the witness to observe the alleged criminal act. the e0istence of any discrepancy between any pre"lineup description and the defendant8s actual appearance. any identification prior to lineup of another person. the identification by picture of the defendant prior to the lineup. failure to identify the defendant on a prior occasion. the lapse of time between the crime and the lineup identification. Fistinguished from in"person line"ups are !ug shots. The $i0th Amendment does not apply where the police present photographs, including a photograph of the accused, to an eyewitness for possible identification of the perpetrator. $uch a display, although it occurs after indictment, is not a critical stage of the prosecution. United States v. /sh, %*: #.$. :++ )*&<:,. ( 1+)*+ Relia-ility of dentification Procedures >vidence of a pretrial identification of the accused must be e0cluded from trial if, based on the totality of the circumstances, the procedure used to obtain the identification was )*, unnecessarily suggestive9 and )', conducive to !ista#en identification. Stovall v. Denno, :;; #.$. '&: )*&3<,. This rule applies regardless of whether the identification was corporeal or non"corporeal, occurred before or after formal charges were initiated, and whether or not counsel was present.
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Where pretrial eyewitness identification is deemed unnecessarily suggestive and unreliable, the witness is precluded fro! !a#ing an in$court identification of the accused unless the prosecution proves that the out"of"court identification procedure did not create a very substantial li5elihood of irre0ara#le misidentification.! Simmons v. United States, :&+ #.$. :<< )*&3;,. .1/ #nnecessarily Su33esti,e -n some cases, the identification procedure may in fact be suggestive @ e.g., showing a single suspect to an eyewitness, or presenting the suspect in handcuffs @ but under the circumstances, the identification procedure is deemed necessary. -n Stovall, the .ourt found suggestive! the police action of bringing to the hospital a single African" American suspect, who was handcuffed to an officer, for identification by a stabbing victim. 6evertheless, the .ourt concluded that the procedure was necessarily suggestive, as the police were unsure if the victim would survive long enough to view a later line"up. .2/ Conduci,e to &ista9en dentification >ven if an identification procedure is unnecessarily suggestive, the identification procedure must also have been unreliable in order to e0clude the evidence. Manson v. *rath%aite, %:' #.$. &;, **% )*&<<,. The relevant factors in determining reliability include: the opportunity of the witness to view the perpetrator at the time of the crime. the witness8 degree of attention. the accuracy of the witness8 prior description of the perpetrator. the level of certainty demonstrated by the witness at the confrontation. the length of time between the crime and the confrontation.
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Chapter 16 EN$RAP&EN$ ( 16)*1 Nature of Entrapment >ntrapment is not a constitutional doctrine. -t is a cri!inal law defense to police overreaching, recognized in all states and the federal courts. -n general, entrapment occurs when the defendant: )*, was induced to commit the crime by a government agent )typically an undercover police officer,9 and )', would not have otherwise committed such crime. =roof of entrapment varies according to whether the 1urisdiction in which a case is pending applies the sub1ective! test )ma1ority approach, or the ob1ective! test )minority approach advocated by the Hodel =enal .ode,. ( 16)*+ Su-Becti,e $est The sub1ective test focuses on the defendant's predisposition, if any, to co!!it the cri!e solicited by the government agent. Sorrells v. United States, ';< #.$. %:( )*&:',. A defendant need not be completely law"abiding in order to assert a defense of entrapment9 a history of or predisposition to engage in unlawful activity unrelated to the crime at issue does not preclude the defense. >ntrapment re/uires more than that the government agent provided an opportunity to the defendant to commit the crime, and generally involves repeated and persistent solicitation. See, e.g., "a!o#son v. United States, (+: #.$. (%+ )*&&', )defendant who had purchased magazines that contained nude photographs of under"age males not depicting any se0ual activity prior to the enactment of a federal law prohibiting the receipt of such materials, and who subse/uently succumbed to more than two years of government solicitation to purchase child pornography, was not deemed to be predisposed to commit such crime,. =redisposition may be proved by demonstrating the defendant's ready co!plaisance to co!!it the cri!e, with evidence of, for e0ample: the defendant8s non"hesitancy to commit the crime. the defendant8s ready 5nowledge of how to commit the crime. the defendant8s comments prior to the commission of the crime that demonstrate his propensity to commit the crime. =redisposition may also be proved by reference to the defendant's character in the co!!unity prior to the time the government approached him, e.g., evidence )which is otherwise generally inadmissible, of the defendant8s bad reputation in the community and?or his prior criminal record, including arrests and convictions for related offenses.
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-n 1urisdictions applying the sub1ective test, the issue of whether the defendant was entrapped is deemed a /uestion of fact and is generally sub!itted to the )ury. ( 16)*6 O-Becti,e $est The ob1ective standard focuses on police conduct rather than the predisposition of the defendant. #nder the ob1ective test, the court considers the li5ely impact of the police solicitation on a hypothetical innocent person, not the actual defendant. The hypothetical person! standard may ta5e into account some of the characteristics of the actual defendant. Hodel =enal .ode C '.*:)', provides that the entrapment defense should be sub!itted to a )udge rather than to the 1ury.
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Chapter 18 R 4%$ $O CO#NSELH PRE$R AL7 $R AL AN' POS$@CONV C$ ON PROCEE' N4S ( 18)*1 Pretrial Proceedin3s #nder the $i0th Amendment, a defendant8s right to counsel attaches upon the commencement of an adversarial criminal proceeding and may be invo5ed at any critical stage.! Thus, prior to trial, a defendant is entitled to the assistance of counsel at: )*, post$indict!ent line$ups 2See .hapter *', >yewitness -dentification.4 )', post$indict!ent interrogation 2See .hapter **, $i0th Amendment Dight to .ounsel: -nterrogation.4 ):, psychiatric exa!inations of the defendant to determine competency 2See .hapter *;, =retrial and Trial -ssues.4 )%, arraign!ents 2See .hapter *(, .harging the Fefendant.4 )(, preli!inary hearings 2See .hapter *(, .harging the Fefendant.4 )3, bail and detention hearings 2See .hapter *3, =retrial Delease or Fetention.4 )<, plea hearings 2See .hapter *<, =lea Eargaining and Builty =leas.4 -f a defendant is denied his right to counsel at a pretrial proceeding, any trial conviction is not necessarily sub1ect to reversal if the prosecution demonstrates beyond a reasonable doubt that the $i0th Amendment violation constitutes har!less error, i.e., if the same verdict would have been rendered regardless of such constitutional violation. Cha0man v. California, :;3 #.$ *; )*&3<,. ( 18)*+ $rial Proceedin3s .A/ Appointment of Counsel to ndi3ents The state must appoint counsel to an indigent who is charged with a felony. $ideon v. Wain%right, :<' #.$. ::( )*&3:,. While this re/uirement does not extend to !isde!eanor cases under the $i0th Amendment, no person !ay be i!prisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,! absent a 5nowing and intelligent waiver of the right to counsel. /rgersinger v. .amlin, %+< #.$. '( )*&<',. Thus, a defendant charged with a misdemeanor which carries an optional 1ail sentence is not guaranteed assistance of counsel at state e0pense9 however, if counsel is not provided, the 1udge is precluded from sentencing any term of imprisonment upon a finding of guilt. 6or may the court impose a suspended prison sentence under such circumstances. /la#ama v. Shelton, (:( #.$. 3(% )'++',. Fenial of the $i0th Amendment right to counsel at trial results in automatic reversal of any conviction. $ideon v. Wain%right 2:<' #.$. ::(4. .2/ Ri3ht of Self@Representation
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.1/ !ai,er of Counsel -mplicit in the $i0th Amendment is the right of a defendant to voluntarily and 5nowingly waive his right to the assistance of counsel and to represent himself at trial, provided the court deems him mentally competent to do so. )aretta v. California, %'' #.$. ;+3 )*&<(,. The court must inform the defendant see5ing to waive counsel of the dangers and disadvantages of self"representation, so that the record will establish that Jhe 5nows what he is doing and his choice is made with eyes open.8 ! .+/ Stand-y Counsel The right to self"representation is not violated by the appoint!ent of standby counsel, even if the defendant ob1ects. The role of standby counsel is to assist the defendant if and when he see5s help and to assume control of the defense if the defendant can no longer represent himself. Here occasional unsolicited assistance by the standby counsel does not violate the $i0th Amendment as long as the defendant retains control over his defense. The right of self" representation is not violated unless standby counsel: substantially interferes with the defendant8s significant tactical decisions. assu!es control of the e0amination of witnesses. spea5s for the defendant on !aterial issues against his wishes. otherwise destroys the )ury's perception that the defendant is representing hi!self. M!Kas+le v. Wiggins, %3( #.$. *3; )*&;%, )upholding a conviction in which standby counsel provided unsolicited, and at times even unwanted, assistance,. .6/ nade<uate Self@Representation A defendant who chooses self"representation cannot thereafter assert a claim of ineffective assistance of counsel. .8/ !ron3ful 'enial of the Ri3ht of Self@Representation -f a court wrongfully denies a defendant the right to represent himself at trial, or if the right is violated by standby counsel, any subse/uent conviction !ust be reversed. .C/ neffecti,e Assistance of Counsel .1/ Re<uirement for Effecti,e Representation
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-mplicit in the right to counsel is that such counsel, whether retained or court"appointed, must render effective representation. According to standards issued by the American Ear Association, effective representation! re/uires defense counsel to: )*, e0ercise professional 1udgment, within the bounds of the law, solely for the benefit of the defendant and free of any conflicts of interest. )', interview the defendant early in their relationship. ):, 5eep the defendant informed of important developments in the case. )%, consult with the defendant on important decisions. )(, promptly and comprehensively investigate the circumstances of the case. )3, apply legal s5ill and 5nowledge to render the trial a reliable adversarial process. .+/ Stric#land $est for neffecti,e Representation -n Stri!+land v. Washington, %33 #.$. 33; )*&;%,, the $upreme .ourt established a two" prong test for determining when legal representation in a criminal trial is ineffective. The test re/uires a showing that: )*, the representation was deficient9 and )', such deficiency pre)udiced the defendant. .a/ 'eficiency of Representation While Stri!+land did not establish e0plicit guidelines for effective representation, the .ourt stated that representation is deficient when the errors 2were4 so serious that counsel was not functioning as the 3counsel' guaranteed . . . by the $i0th Amendment.! .ases alleging ineffective representation generally fall into one of three categories: )*, failure to perform ordinary tas5s9 )', falling asleep in court9 or ):, ignorance of the relevant law. .i/ "ailure to Perform Ordinary $as9s >0amples of omissions that, under given circumstances, may /ualify as deficient representation, include: failure to develop a meaningful defense strategy. failure to interview witnesses. failure to re/uest discovery. failure to visit the crime scene. absence from the courtroom during critical portions of the trial. failure to ma5e appropriate evidentiary ob1ections. failure to timely file a notice of appeal.
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7owever, less"than"optimal performance does not necessarily render representation inade/uate, as long as the nature and conduct of the representation is based on reasonable professional )udg!ent. See, e.g., *urger v. Kem0, %;: #.$. <<3 )*&;<, )finding that defense counsel8s decision to not fully investigate the defendant8s bac5ground and not offer mitigating evidence at two capital sentencing hearings was supported by reasonable professional 1udgment, in that his interviews and studies of reports indicated that an e0planation of the defendant8s bac5ground would not have minimized the ris5 of the death penalty,. .ii/ Sleepin3 in Court -t is widely accepted that proof that defense counsel fre/uently slept during trial or significant pretrial hearings constitutes deficient representation. .iii/ 3norance of Rele,ant Law Feficiency may be proved where defense counsel8s ignorance or misunderstanding of relevant law affects trial strategy to the detri!ent of the defendant. (.g., Kimmmelman v. Morrison, %<< #.$. :3( )*&;3, )defense counsel8s failure to re/uest discovery and conse/uently move to suppress evidence obtained in violation of the Fourth Amendment, based on his erroneous belief that the prosecution was re/uired on his own initiative to turn over all incriminating evidence in its possession, was held to constitute deficient representation,9 3o!+hart v. )ret%ell, (+3 #.$. :3% )*&&:, )defense counsel failed to ob1ect to the introduction of certain evidence at the sentencing phase of the trial when it had already been introduced during the guilt phase of the trial, apparently because he was unaware of the relevant law which would have precluded such duplicate evidence,. .-/ PreBudice Once a defendant demonstrates that representation was deficient, the second prong of the Stri!+land test re/uires proof that such deficiency was pre1udicial to the defendant8s case. To prove pre1udice, the defendant must show that there is a reasonable probability that, but for counsel8s errors, the outco!e of the trial would have been different, e.g., that the defendant would not have been convicted or would have received a lesser sentence. Deasonable probability! suggests more than that the error had some effect! on the outcome, but not that it is more li5ely than not! that counsel8s deficient representation affected the outcome. =re1udice is presu!ed in cases involving: )*, actual or constructive denial of the assistance of counsel such as when the lawyer repeatedly fell asleep during trial9 )', certain forms of state interference with counsel8s assistance9 and ):, attorney conflict of interest. .6/ Conflicts of nterest
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.a/ Pretrial A,oidance of Conflicts -f an attorney representing co"defendants ma5es a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial 1udge !ust either grant the !otion or at least conduct a hearing on the matter to ascertain whether appointment of separate counsel is warranted. Failure of the 1udge to do so re/uires automatic reversal of any conviction. .ollo%ay v. /r+ansas, %:( #.$. %<( )*&<;,. .-/ 'is<ualification of Counsel A trial court has the authority to dis/ualify defense counsel, even over a defendant8s ob1ection, if it concludes that there is significant potential of a conflict of interest. Wheat v. United States, %;3 #.$. *(: )*&;;,. .c/ Appeal 2ased on Conflict of nterest -n order to overturn a conviction on the basis of a conflict of interest, the defendant must demonstrate that: )*, an actual conflict of interest existed9 and )', the conflict adversely affected the lawyer's perfor!ance. The defendant need not show actual pre1udice @ i.e., that the outcome of the trial would have been different @ only that the conflict adversely affected! the lawyer8s performance. ( 18)*6 Post@Con,iction Proceedin3s The $i0th Amendment right to counsel applies to sentencing hearings. Mem0a v. 4hay, :;& #.$. *'; )*&3<,. The Sixth !end!ent does not itself extend to cri!inal appeals. )-n fact, the federal .onstitution does not even provide a right to appeal convictions, although every state provides at least one appeal of right in criminal cases, and grants courts discretion regarding subse/uent appeals., 7owever, as appellate procedures are sub1ect to the standards of the Fourteenth !end!ent e"ual protection and due process clauses, an indigent defendant see5ing to appeal his conviction must be provided counsel for the first statutory appeal of right. Douglas v. California, :<' #.$. :(: )*&3:,. The Fourteenth Amendment has been held to not re"uire the appoint!ent of counsel to assist indigent appellants for: discretionary state appeals. applications for review in the #nited $tates $upreme .ourt. state habeas corpus proceedings.
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post"sentencing probation hearings. post"sentencing parole revocation hearings. 4oss v. Moffitt, %*< #.$. 3++ )*&<%,9 ennsylvania v. )inley, %;* #.$. ((* )*&;<,9 $agnon v. S!ar0elli, %** #.$. <<; )*&<:,.
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Chapter 1: C%AR4 N4 $%E 'E"EN'AN$ ( 1:)*1 Complaint After a suspect is arrested and boo5ed, a complaint is prepared by the police or a prosecutor and is filed with the court. A complaint is a written statement of the essential facts constituting the offense charged.! Fed. D. .rim. =. :. The complaint serves as the official charging docu!ent prior to the issuance of an infor!ation or indict!ent . ( 1:)*+ Pro-a-le Cause 45erstein6 %earin3 When the police arrest a suspect without an arrest warrant, a pro!pt )udicial deter!ination of probable cause must ordinarily be made in order to continue to detain the defendant where a significant pretrial restraint on liberty is involved. $erstein v. ugh, %'+ #.$. *+: )*&<(,. A $erstein hearing that is held more than %; hours after the defendant8s arrest is presumptively unreasonable. 4iverside County v. M!3aughlin, (++ #.$. %% )*&&*,. -n indictment 1urisdictions, if a grand 1ury previously returned an indictment, a $erstein hearing is unnecessary. A $erstein 2%'+ #.$. *+:4 hearing is e/uivalent to a pre"arrest warrant hearing, at which probable cause must be demonstrated in order to be granted a warrant. -t is nonadversarial in nature. The hearing may be conducted in the defendant8s absence, and the probable cause determination may be based on hearsay testimony. ( 1:)*6 nitial Court Appearance A defendant must be brought before a 1udicial officer for a hearing without unnecessary delay,! Fed. D. .rim. =. ()a,, usually within 78 hours of the arrest, e0cept on wee5ends. $uch hearing is variously called the initial arraignment,! arraignment on a warrant,! arraignment on a complaint,! or the initial appearance.! At the initial appearance: )*, the defendant receives formal notice of the charges against him. )', relevant constitutional rights are e0plained to the defendant. ):, a date is set for a preliminary hearing. )%, counsel is appointed if the defendant is indigent. )(, a $erstein 2%'+ #.$. *+:4 probable cause determination may be made at such time if the defendant was arrested without a warrant. )3, the magistrate determines whether the defendant should be set free on his own recognizance, released on bail, or detained pending further proceedings. 2See .hapter *3, =retrial Delease or Fetention.4 ( 1:)*8 Preliminary =2indo,er> %earin3
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-n most 1urisdictions, a preliminary hearing is held within two wee5s after the initial appearance before the magistrate, unless the defendant waives the hearing. Fed. D. .rim. =. ()c,. The primary purpose of a preliminary hearing is to determine whether there is probable cause to believe that the defendant co!!itted a specified cri!inal offense. Fed. D. .rim. =. (.*)a,. Ai5e the $erstein 2%'+ #.$. *+:4 hearing, a preliminary hearing is not re/uired if a grand 1ury previously returned an indictment. #nli5e a $erstein 2%'+ #.$. *+:4 hearing, the preli!inary hearing is adversarial in nature. Fefense counsel may be present, and the prosecutor and the defendant may call witnesses on their behalf and cross"e0amine adverse witnesses. Hany 1urisdictions permit the introduction of hearsay and evidence obtained in an unconstitutional manner at the preliminary hearing. Fed. D. .rim. =. (.*)a,. .A/ nformation Jurisdictions -f the magistrate in an infor!ation )urisdiction @ i.e., a state in which an indict!ent by a grand )ury is not re"uired * determines that there is sufficient evidence to bind over the defendant for trial, the prosecutor files an information. An information states the charges against the defendant and the essential facts relating to the charges and replaces the co!plaint as the for!al charging docu!ent. -f the magistrate in an information 1urisdiction does not find sufficient evidence to bind over the defendant, the complaint is dismissed and the defendant is discharged. -f the prosecutor wishes to proceed with the dismissed case: )*, he may file a new complaint, in which case the prosecution begins anew9 )', in some states, he may appeal the magistrate8s dismissal to the trial court9 and?or ):, in some circumstances, he may see5 an indictment from a grand 1ury. -n an indict!ent )urisdiction @ states in which the defendant ordinarily cannot be brought to trial unless indicted by a grand )ury @ the preliminary hearing functions as little more than an adversarial $erstein"type hearing. -ndeed, the !agistrate's probable cause deter!ination !ay be superseded by the grand )ury9 if the grand 1ury does not indict the defendant, he must be released, despite a finding by the magistrate that probable cause e0ists to believe that the defendant committed the offense. ( 1:)*: 4rand Jury Proceedin3 -n indictment 1urisdictions, a defendant may not be tried for a serious offense unless he is indicted by a grand 1ury or waives the right to a grand 1ury hearing. A grand 1ury proceeding differs from a preliminary proceeding in that: )*, the defendant is not per!itted to be present during the grand 1ury proceedings, e0cept if and when he is called as a witness. )', the defendant )as well as all other witnesses, !ay not have counsel present while he testifies before the grand 1ury.
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):, no )udge is present during the proceedings, and thus, rules of evidence @ e.g., those e0cluding hearsay and evidence obtained in violation of the .onstitution @ do not apply. )%, the prosecutor is not re"uired to disclose exculpatory evidence to the grand 1urors. -f a ma1ority of grand 1urors believe that the prosecutor presented sufficient evidence on which a trial may proceed, the grand 1ury issues an indictment, a document that states the charges and the relevant facts relating to them. -f the 1ury does not indict the defendant )a no"bill!,, the complaint is dismissed and the defendant is discharged. ( 1:)*; Arrai3nment #pon the filing of an indictment or information, the defendant is arraigned. Fefense counsel may be present at the arraignment. At the arraignment, the defendant is provided with a copy of the indictment or information, after which he enters one of the following pleas to the offenses charged: not guilty! guilty! nolo !ontendere! not guilty by reason of insanity! )available in some states,
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Chapter 1; PRE$R AL RELEASE OR 'E$EN$ ON ( 1;)*1 nitial Court Appearance At a defendant8s initial court appearance )which usually occurs within '% hours after arrest,, the magistrate or 1udge determines whether the defendant may be released pending trial. The magistrate may: )*, release the defendant on recognizance if the magistrate is confident that the defendant will appear as re/uired at all criminal proceedings. )', attach conditions to the defendant's release, such as placing him in the custody of a designated individual or re/uiring the deposit of bail, in order to better ensure the defendant will appear as re/uired. ):, order the continued confine!ent of the defendant pending trial ) preventive detention!, if the magistrate determines that no conditions will reasonably ensure the defendant8s appearance as re/uired or that his release will 1eopardize the safety of others. -n federal criminal cases, a defendant is entitled to representation by counsel at the bail determination, and indigents are appointed counsel for such purpose. Fed. D. .rim. =. %%)a,. Hany state court systems, however, do not provide counsel to indigents for bail proceedings. ( 1;)*+ 2ail .A/ Amount of 2ail The >ighth Amendment, as well as all states, by constitution or statute, prohibits the setting of excessive bail. Eail is e0cessive if it is set at an amount higher than is deemed necessary to ensure the defendant8s appearance at trial. -n determining the appropriate amount of bail in a given case, the magistrate is to consider: the nature and circumstances of the offense charged. the weight of the evidence against the defendant. the defendant8s character. the financial ability of the defendant to meet the bail re/uirements. The .onstitution does not entitle an indigent to be released %ithout bail if he cannot afford to meet any financial conditions. Sta!+ v. *oyle, :%' #.$. * )*&(*,. .2/ "ederal 2ail Reform Act #nder the Federal Eail Deform Act of *&;%, *; #.$... CC :*%*@:*(+, the magistrate is re"uired to release the defendant on his own recognizance or upon e0ecution of an
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unsecured appearance bond in an amount specified by the court,! unless the magistrate concludes that !ore restrictive conditions are necessary to reasonably ensure that the defendant will not flee the 1urisdiction and?or endanger others while released pending trial. The magistrate may not set bail in an amount that is beyond the means of the defendant and therefore results in pretrial detention. *; #.$... C :*%')c,)',. -f a 1udge determines that the defendant should be detained pending trial, he is re/uired to follow the detention provisions set out in the Act. ( 1;)*6 Pre,enti,e 'etention .A/ 'etention %earin3 #nder the Federal Eail Deform Act, *; #.$... C :*%')f,)*,, the magistrate must hold a detention hearing on the motion of the prosecutor if the defendant is charged with: a crime of violence. any offense for which the ma0imum sentence is life imprisonment or death. a drug offense for which the ma0imum term of imprisonment is ten years or more. any other felony committed by a person previously convicted of two or more of the above offenses. A hearing is also re/uired on a motion of the prosecutor or on the 1udge8s own motion in cases that involve an allegation of: a serious ris5 of flight. obstruction of 1ustice. intimidation of a prospective witness or 1uror. At the detention hearing, which ordinarily must be held at the defendant8s first appearance before the magistrate, the defendant is entitled by statute to be represented by counsel, to testify in his own behalf, to present witnesses, and to cross"e0amine witnesses called by the prosecutor. Dules concerning the admissibility of evidence at criminal trials do not apply at the hearing, thus allowing the introduction of hearsay and evidence obtained in violation of the .onstitution. The prosecutor or defendant may immediately appeal the magistrate8s order in the detention hearing. *; #.$... C :*%(. .2/ 'etermination of Release or 'etention .1/ Rele,ant "actors -n order to determine whether any condition)s, will reasonably ensure the appearance of the defendant and the safety of others, the magistrate must consider:
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the nature of the offense charged. the weight of the evidence against the defendant. the defendant8s physical and mental condition. the defendant8s ties to family and the community. whether, at the time of the current arrest, the defendant was already on probation or parole or on pretrial release from another offense. *; #.$... C :*%')g, .+/ Statutory Presumptions The Federal Eail Deform Act of *&;% provides for two rebuttable presumptions in detention hearings. The defendant is presu!ed to be too dangerous to be released if the prosecutor proves: )*, the defendant was previously been convicted of one of the enumerated offenses that 1ustifies a detention hearing9 )', that the offense for which the defendant was convicted was committed while he was on release pending trial for another crime9 and ):, five years have not elapsed since the later of the date of the defendant8s prior conviction or his release from prison. -t may also be presu!ed that no conditions of release will reasonably ensure that the defendant will not flee or co!!it a cri!e, if the magistrate determines that there is probable cause to believe that the current charge involves an enu!erated serious drug offense or an the use or possession of firear!s. *; #.$... C :*%')e,.
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Chapter 1C PLEA 2AR4A N N4 AN' 4# L$F PLEAS ( 1C)*1 Plea 2ar3ainin3 .A/ $ypes of Plea A3reements .1/ Char3e 2ar3ainin3 There are two types of charge! bargaining: )*, dis!issal agree!ent @ a defendant who is charged with multiple offenses pleads guilty to one or more charges, in e0change for which the prosecutor agrees to drop the other charges. )', charge$reduction agree!ent @ the defendant and prosecutor agree on a guilty plea to a lesser degree of the original charge. .+/ Sentence 2ar3ainin3 $entencing bargaining also ta5es one of two forms: )*, sentencing reco!!endation agree!ent @ in e0change for a guilty plea to a given charge, the prosecutor agrees to recommend to the 1udge a sentence agreed upon by the defendant, or alternatively, to not oppose the defendant8s re/uest for a particular sentence9 )', sentencing agree!ent @ the prosecutor agrees to a specified sentence in e0change for the guilty plea. .2/ 'isclosure of A3reement to Court Federal Dule of .riminal =rocedure **)e,)',, followed by most states, re/uires the disclosure of any plea bargain to the trial court when the defendant pleads guilty. .C/ Acceptance of Plea A3reement -y $rial Court A 1udge is not re/uired to accept a plea agreement. -f the 1udge re1ects the plea agreement, the defendant must be given the opportunity to withdraw the plea, and must be informed that if he does not withdraw it, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.! Fed. D. .rim. =. **)e,)%,. With respect to a guilty plea based on a sentencing"recommendation agreement, the 1udge must inform the defendant that if the court does not accept the sentencing recommendation, the defendant is not entitled to withdraw the plea. .'/ Re,ocation and 2reach of A3reement -y Prosecutor
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The prosecutor may revo5e an offer, even after the defendant accepts it, prior to the entry of the plea by the court. Ma#ry v. "ohnson, %3< #.$. (+% )*&;%,. 7owever, the prosecutor may not breach the plea bargain once the court accepts it if the guilty plea rests in significant part on the prosecutor8s promise. Santo#ello v. -e% 2or+, %+% #.$. '(< )*&<*, )defendant pleaded guilty based on prosecutor8s agreement to not ma5e a sentencing recommendation to the trial 1udge9 months later at the sentencing hearing, in violation of the plea agreement, a different prosecutor sought the ma0imum sentence, which the 1udge imposed,. -f the prosecutor violates his agreement, the court may order specific enforcement of the agreement or allow the defendant to withdraw the plea. The $upreme .ourt has suggested that defense counsel should see5 to have all aspects of a deal e0pressly and clearly set out, United States v. *en!himol, %<* #.$. %(: )*&;(,, and in especially complicated or unusual cases, include an e0press provision mandating 1udicial construction of a plea agreement, in the event that the parties dispute the meaning of a provision. 4i!+etts v. /damson, %;: #.$. * )*&;<,. .E/ %ard 2ar3ainin3 -y Prosecution A prosecutor does not engage in prosecutorial vindictiveness! simply by driving a hard bargain in the plea negotiation process, such as threatening to charge the defendant with a more serious charge if he does not plead guilty. *orden+ir!her v. .ayes, %:% #.$. :(< )*&<;,. ."/ !ithdrawal of Plea -y 'efendant Once a guilty plea is entered by the court but before sentencing, a defendant !ay not withdraw the plea unless he demonstrates a fair and 1ust reason! for doing so, such as that the plea was coerced. United States v. .yde, ('+ #.$. 3<+ )*&&<,. .4/ E,idence of 4uilty Plea and Statements &ade 'urin3 Ne3otiations -n federal criminal trials, Federal Dule of .riminal =rocedure **)e,)3, excludes from any civil or criminal proceeding: evidence that the defendant entered a plea of guilty that was later withdrawn. statements made by the defendant to the prosecutor during plea negotiations. statements made by the defendant to the 1udge during plea proceedings. 7owever, the defendant can 5nowingly and voluntarily waive the e0clusionary provisions. United States v. Mezzanatto, (*: #.$. *&3 )*&&(,. ( 1C)*+ 4uilty Pleas .A/ Assistance of Counsel
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A defendant who intends to plead guilty !ust be represented by counsel or must validly waive the right to counsel at the pleading stage. .2/ Competency to Plead 4uilty A defendant must be mentally competent in order to validly plead guilty or waive his right to counsel. The competency standard for pleading guilty or waiving the right to counsel is the same as that applied for determining competency to stand trial, i.e., the defendant must possess sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding! and a rational as well as factual understanding of the proceedings against him.! $odinez v. Moran, (+& #.$. :;& )*&&:,. .C/ Voluntary and ?nowin3 Plea A guilty plea is valid only if it is made voluntarily and 5nowingly. .1/ Voluntary !ai,er of Ri3hts A federal trial court may not accept a guilty plea until it determines that the plea is voluntary, i.e., it must not be the result of force or threats or of promises apart from a plea agreement.! Fed. D. .rim. =. **)d,. Dule ** re/uires the 1udge to determine the voluntariness of the plea by addressing the defendant personally in open court.! 6evertheless, under Dule **, any variance from the procedures . . . which does not affect substantial rights! constitutes har!less error. Fed. D. .rim. =. **)h,. This rule supersedes the holding in M!Carthy v. United States, :&% #.$. %(& )*&3&,, which held that a guilty plea must be set aside if the district court failed to address the defendant in open court in order to determine the voluntariness of the plea. .+/ ?nowin3 !ai,er of Ri3hts A guilty plea is invalid if the defendant is unaware of: )*, the nature of the charges to which he is pleading9 )', the penal conse/uences of the plea9 and ):, the nature of the rights he is waiving by pleading guilty. 7owever, a plea is not invalid merely because the defendant or his counsel incorrectly assessed the legal or factual circumstances surrounding the case. Fed. D. .rim. =. **)c,.
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.a/ Nature of the Char3es The defendant must be informed of and understand the critical ele!ents )e.g., mental state, @ but not necessarily all elements @ of the crime to which he is pleading guilty. .enderson v. Morgan, %'3 #.$. 3:< )*&<3, )defendant, who possessed substantially below"average intelligence, pleaded guilty to intent"to"5ill murder, even though he told the court that he meant no harm! to the victim9 the plea was held invalid because the trial 1udge determined that neither the defense attorney nor the prosecutor e0plained to the defendant that intent was a critical element of the crime,. .-/ Penal Conse<uences of the Plea Federal Dule of .riminal =rocedure **)c, re/uires the 1udge to inform the defendant of any mandatory minimum sentence provided by law, and the ma0imum penalty for the offense, including any pertinent parole provisions. The 1udge must also inform the defendant that he is re/uired to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances.! 6evertheless, the prevailing view is that the failure of a court to inform a defendant of the direct penal conse/uences of the plea, even if such failure violates a statute or procedural rule, does not by itself constitute a due process violation. .c/ Nature of the Ri3hts 2ein3 !ai,ed The 1udge must inform the defendant that by pleading guilty, he waives the privilege against self"incrimination, the right to trial by 1ury, and the right to confront one8s accusers. *oy+in v. /la#ama, :&( #.$. ':; )*&3&,9 Fed. D. .rim. =. **)c,. Degarding the waiver of the privilege against self"incrimination, if the court intends to /uestion the defendant under oath during the plea proceeding, it must inform the defendant that his answers can later be used against him in a prosecution for per1ury. -n contrast, however, the defendant8s truthful statements to the 1udge during the plea proceeding may not be used against him at any subse/uent sentencing hearing in that case. Mit!hell v. United States, ('3 #.$. :*% )*&&&,. .d/ ncorrect Le3al Ad,ice An otherwise valid plea is not vulnerable to collateral attac# simply because it was based on incorrect legal advice, if the advice was based on then e0isting law as to possible penalties.! United States v. "a!+son, :&+ #.$. (<+ )*&3;,. 7owever, if the defendant entered into a plea agreement based on advice of counsel whose representation was ineffective, the plea may be challenged. -n order to vacate a guilty plea on the ground of ineffective representation, the defendant must prove that the
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representation was constitutionally deficient and that such deficiency was pre1udicial. 2See .hapter *%, Dight to .ounsel: =retrial, Trial and =ost".onviction =roceedings.4 .'/ "actual 2asis of the Plea -n general, a 1udge is not constitutionally re"uired to determine whether there is a factual basis for a defendant8s guilty plea. 7owever, when a defendant affir!atively asserts his innocence during the plea proceeding, the trial 1udge must determine whether there is a factual basis for the plea. -orth Carolina v. /lford, %++ #.$. '( )*&<+,. -f the record contains strong evidence of actual guilt,! a 1udge may accept a guilty plea from a defendant despite his assertion of innocence at the plea proceeding. Although not constitutionally mandated, Federal Dule of .riminal =rocedure **)f, re/uires federal criminal courts to determine whether a factual basis for the plea e0ists. The rule does not re"uire the trial )udge to believe that the defendant is in fact guilty as long as a factual basis for the plea e0ists. .E/ "orfeiture of Prior Constitutional Claims A defendant who pleads guilty to a criminal charge in state court ordinarily is barred from raising a claim in federal court based on a constitutional violation that occurred prior to the guilty plea, even if such claim might have barred a conviction if the defendant had proceeded to trial on the criminal charge. 6evertheless, a defendant who pleads guilty does not forfeit the following constitutional claims: a procedural defect in the guilty plea procedure itself. the plea was not voluntarily or intelligently made. ineffective assistance of counsel. prosecutorial vindictiveness in the charging process. double 1eopardy. ( 1C)*6 Conditional Pleas =9olo +ontendre> The alternative plea of nolo !ontendre, available in federal court and some states, allows a defendant to conditionally plead guilty in order to reserve the right, on appeal from the 1udgment, to review of the adverse determination of any specified pretrial motion.! Fed. D. .rim. =. **)a,)',. -f the defendant prevails on appeal, he may withdraw the plea. -f he does not prevail, the plea stands. All of the provisions of Federal Dule of .riminal =rocedure ** pertaining to guilty pleas apply to pleas of nolo !ontendere as well, e0cept for the factual basis! re/uirement under Dule **)f,.
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Chapter 1D PRE$R AL AN' $R AL SS#ES This chapter covers the following issues: Fiscovery .ompetency to $tand Trial Dight to a $peedy Trial Kury Trial Dight to .onfront Witnesses and =resent a Fefense Koint Trials $entencing ( 1D)*1 'isco,ery .A/ Exculpatory E,idence -n preparation for trial, the prosecution has a duty to: disclose exculpatory evidence in its possession to the defendant, *rady v. Maryland, :<: #.$. ;: )*&3:,. disclose any deals !ade by the prosecution with a witness, $iglio v. United States, %+( #.$.*(+ )*&<',. ascertain any exculpatory evidence #nown to other govern!ent agents and to assess the cumulative effect of all e0culpatory evidence in deciding whether to disclose the evidence to the defendant, Kyles v. Whitley, (*% #.$ %*& )*&&(,. Failure to disclose e0culpatory evidence violates the due process clause. Where the prosecution fails to disclose e0culpatory evidence, a conviction must be overturned if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.! United States v. *agley, %<: #.$. 33< )*&;(,. Absent bad faith on the part of the police, failure to preserve potentially e0culpatory evidence does not constitute a due process violation. /rizona v. 2oung#lood, %;; #.$. (* )*&;;, )failure to test semen ta5en from a se0ual assault victim and to refrigerate his clothing in order to preserve semen on it did not re/uire reversal of conviction because no police bad faith was shown,. .2/ 4o,ernment 'uty to 'isclose nformation #pon 'efense Re<uest #pon a defendantLs re/uest, Federal Dule of .riminal =rocedure *3 re/uires the government to disclose the following evidence within its possession, custody or control, and 5nown to e0ist through due diligence:
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)*, the substance of any oral state!ent !ade by the defendant, before or after arrest, in response to interrogation by a person the defendant 5new was a government agent9 )', any relevant written or recorded state!ent by defendant9 ):, defendantLs prior cri!inal record9 )%, any material docu!ents and ob)ects that the government intends to in its case" in"chief, or was obtained from or belongs to the defendant9 )(, reports resulting from any physical or !ental exa!inations and tests9 )3, written summary of any expert testi!ony that the government intends to use in its case"in"chief. #nder federal procedure, if the defendant re/uests the government to produce documents and tangible evidence, reports of e0aminations and tests, or information about e0pert witnesses, the defense must ma5e a reciprocal disclosure. Fed. D. .rim. =. *3)b,)*,. .C/ 'efendantAs O-li3ation to 'isclose nformation The prosecution may be entitled by statute or procedural rule to obtain information from the defendant prior to trial, e.g., the names of alibi witnesses. See, e.g., Fed. D. .rim. =. *'.*. -n such cases, the defense must be entitled to reciprocal discovery from the prosecution pertaining to relevant rebuttal evidence. Wardius v. 'regon, %*' #.$. %<+ )*&<:,. ( 1D)*+ Competency to Stand $rial .A/ ncompetency 'efined =rosecution of a defendant who lac5s competency to stand trial violates the due process clause. Medina v. California, (+( #.$. %:< )*&&',. .ompetency to stand trial is constitutionally re/uired because a defendant must be able to assist his attorney in a meaningful defense, e.g., to discuss strategy, e0plain his version of the facts, and provide the names of potential witnesses, as well as to confront accusers at trial. A person is incompetent if, during the cri!inal proceedings, he lac5s: )*, capacity to consult with counsel with a reasonable degree of rational understanding!9 or )', a rational as well as factual understanding of the proceedings! against him. Dus+y v. United States, :3' #.$. %+' )*&3+,. -ncompetency may be the result of a physical handicap, e.g., inability to spea5, or a temporary or permanent mental disability, e.g., mental retardation, amnesia, mental illness. .2/ Procedures for 'eterminin3 Competency The issue of competency to stand trial may be raised by the prosecutor, the defense, or the trial 1udge. The defendant8s competency must be investigated, even over the
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defendant8s ob1ection, if the trial 1udge believes that the defendant may be incompetent. ate v. 4o#inson, :;: #.$. :<( )*&33,. When the defendant8s competency is raised, the defendant must submit to a psychiatric e0amination, and if the results are in dispute, a hearing must be held at which the parties may present evidence on the matter of competency. *; #.$... C %'%*. #pon a ruling of incompetency, the defendant is committed to an appropriate facility for a reasonable period of time )up to four months under federal law, in order to determine whether there is a substantial probability that he will attain capacity to stand trial in the foreseeable future. "a!+son v. ,ndiana, %+3 #.$. <*( )*&<',. The defendant may be held for an additional reasonable period until the defendant attains competency, if it is determined that he is li5ely to so improve. *; #.$... C %'%*)d,)',. -f it is not so determined, the defendant is to be committed according to civil commitment procedures. ( 1D)*6 Ri3ht to a Speedy $rial The $i0th Amendment guarantees an accused the right to a speedy trial. The right attaches only after one has been formally accused of the offense, i.e., upon indictment, information, or custodial arrest. A charge must be dismissed if a court finds that the defendant8s right to speedy trial has been violated, Strun+ v. United States, %*' #.$. %:% )*&<:,, and such dis!issal bars all future prosecutions of the offense. As set out in *ar+er v. Wingo, %+< #.$. (*% )*&<',, the factors relevant to whether the right to a speedy trial has been violated include: )*, :ength of delay @ Felay must be of sufficient length to potentially pre1udice the accused9 some statutes set specific time limits for initiation of trial, see, e.g., Federal $peedy Trial Act, *; #.$... C :*3*. )', ,eason for delay @ >vidence that the prosecutor deliberately attempted to delay trial is weighed heavily in the analysis, unless there is a 1ustifiable reason for the delay, such as a missing witness or illness of a party. -f the delay is willfully caused by the defendant, he is deemed to have waived the right to a speedy trial. ):, 1efendant's assertion or non$assertion of right @ The defendant need not assert the right prior to trial but failure to do so may receive considerable weight in the court8s analysis of the speedy trial /uestion. )%, ;re)udice to defendant @ e.g., loss of evidence, fading memory of witnesses, prolonged incarceration, etc. ( 1D)*8 Jury $rials .A/ Ri3ht to $rial -y Jury The right to a 1ury trial applies only to non$petty offenses, generally deemed to be offenses punishable by imprisonment for more than si0 months. *ald%in v. -e% 2or+, :&& #.$. 33 )*&<+,. Offenses for which the ma0imum term of imprisonment authorized by law is si0 months or less may also be deemed non"petty! if additional available
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statutory penalties )including fines, are so severe that they clearly reflect a legislative determination that the offense in /uestion is a Jserious8 one.! *lanton v. City of -orth 3as Vegas, %;& #.$. (:;, (%: )*&;&,. .2/ Re<uired Num-er of Jurors A 1ury composed of as few as si0 persons is constitutional. Williams v. )lorida, :&& #.$. <; )*&<+,. Twelve 1urors are re/uired in federal criminal trials, although fewer may be permissible upon stipulation by the parties or when the court finds it necessary to e0cuse a 1uror for cause after the trial begins. Fed. D. .rim. =. ':)a,. Hany states li5ewise re/uire a twelve"person 1ury in criminal trials. .C/ Num-er of Jurors Needed to Ac<uit or Con,ict $tate laws permitting non"unanimous verdicts are permissible, as long as the vote to convict represents a substantial ma1ority! of the 1urors, "ohnson v. 3ouisiana, %+3 #.$. :(3 )*&<',, but in federal criminal trials, a verdict to convict or ac/uit must be unanimous. Fed. D. .rim. =. :*)a,. ( 1D)*: Ri3ht to Confront Accusers and to Present a 'efense .A/ "ace@to@"ace Confrontation -n all criminal prosecutions, the accused shall en1oy the right . . . to be confronted with the witnesses against hi!.! This right applies to trials but not pretrial or sentencing proceedings. Williams v. -e% 2or+, ::< #.$. '%* )*&%&,. The confrontation clause entitles the defendant to be physically present in the courtroom during the trial. Snyder v. Massa!husetts, '&* #.$. &< )*&:%,. Federal Dule of .riminal =rocedure %: re/uires a federal criminal defendant8s presence at every trial stage including empanelment of the 1ury and the reading of the verdict. The defendant waives the right to be present in the courtroom, however, if he voluntarily absents hi!self from the courtroom during proceedings, &aylor v. United States, %*% #.$. *< )*&<:,, or behaves in a disorderly !anner in the courtroom, ,llinois v. /llen, :&< #.$. ::< )*&<+,. See also Fed. D. .rim. =. %:)c,. The accused is entitled to a face$to$face confrontation with an opposing witness. $uch right may be denied, however, when the prevention of the confrontation serves an important public purpose, and the witness8s testimony is otherwise shown to be reliable. For e0ample, if the trial court finds that a child victi! of alleged sexual abuse would be trau!atized from having to testify in front of the alleged abuser, the court may allow the child victim to testify via telephone hoo5"up or behind a one"way glass or other such protective measure. (.g., Maryland v. Craig, %&< #.$. ;:3 )*&&+,. 7owever, the trial court may not merely rely on a statutory presumption that a witness needs protection
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from face"to"face confrontation without a determination as to the susceptibility of the individual witness. (.g., Coy v. ,o%a, %;< #.$.*+*' )*&;;,. .2/ %earsay E,idence 2NoteH After this section was written, the $upreme .ourt decided Cra%ford v. Washington, (%* #.$. :3 )'++%,, differentiating between MtestimonialM and MnontestimonialM hearsay and holding that the .onfrontation .lause bars the admission of testimonial hearsay unless the declarant is unavailable and the accused has had a prior opportunity to cross"e0amine the declarant.4 -ntroduction of hearsay passes constitutional analysis where: )*, the declarant of the hearsay statement testifies at trial, affording the defendant the opportunity to cross"e0amine the declarant9 )', a hearsay e0ception applies9 ):, the statement is otherwise found to be trustworthy, based on the totality of circumstances. ,daho v. Wright, %&< #.$. ;+( )*&&+,. -f the hearsay consists of statements made at a prior )udicial proceeding, the statement may be admitted if the declarant is unavailable to testify at the current trial and the statement carries with it sufficient indicia of reliability. United States v. ,nadi, %<( #.$. :;< )*&;3,. The prosecution has the burden of showing that the witness is unavailable for trial and must ma5e a good faith effort to secure his presence9 mere reliance on the witness8s incarceration is insufficient as the prosecution must attempt to secure his presence at trial. *ar#er v. age, :&+ #.$. <*& )*&3;,. .C/ Confession -y Co@'efendant -n a 1oint trial of co"defendants, when the prosecution introduces an admission or confession made by one defendant that implicates another defendant, and the declarant opts to not testify at trial, the trial court must sever the trials or order a deletion of references to the other defendant. *ruton v. United States, :&* #.$. *': )*&3;,. When the statement is redacted, it is not sufficient merely to insert a blan5 or other substitution for the name of the defendant9 the redaction should not indicate the defendant's involve!ent in any !anner. Com0are 4i!hardson v. Marsh, %;* #.$. '++ )*&;<, )after redaction, the co"defendant8s confession contained no indication of defendant8s involvement, %ith $ray v. Maryland, (': #.$. *;( )*&&;, )redacted statement that me, deleted, deleted, and a few other guys 5illed the victim! clearly referred to the defendant8s involvement,. $everance or redaction is not re/uired if the declarant testifies at trial because the defendant is given the opportunity to cross"e0amine the co"defendant. -elson v. '5-eil, %+' #.$. 3'' )*&<*,. The rule also does not apply if the confession is offered for a limited purpose other than to prove guilt. &ennessee v. Street, %<* #.$. %+& )*&;(,. .'/ Ri3ht to Present a 'efense
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The $i0th Amendment grants to the accused the right to co!pulsory process for obtaining witnesses in his favor, which includes the rights to subpoena witnesses and to present a defense. The defendant must be permitted to introduce crucial evidence in his defense that has substantial assurances of trustworthiness, even if the evidence is otherwise inadmissible under local rules of evidence. Cham#ers v. Mississi00i, %*+ #.$. ';% )*&<:,. ( 1D)*; Joint $rials Benerally co"defendants may be charged in the same indictment or information, and tried 1ointly. Fed. D. .rim. =. ;. Furthermore, defendants charged under separate indictments may be 1ointly tried if the offenses and defendants could have been charged in a single indictment. Fed. D. .rim. =. *:. -f a defendant believes that he will be pre1udiced by 1oinder of his case with that of a co" defendant, he may move for separate trials )severance,. Fed. D. .rim. =. *%. A defendant may appeal the decision to conduct a 1oint trial, but the decision is sub1ect to the harmless error rule. United States v. 3ane, %<% #.$. %:; )*&;3,. -n the interests of 1udicial efficiency, the $upreme .ourt has stated that severance should be granted only if there is a serious ris5 that a 1oint trial would compromise a specific trial right of one of the defendants, or prevent the 1ury from ma5ing a reliable 1udgment about guilt or innocence.! 8afiro v. United States, (+3 #.$. (:% )*&&:,. ( 1D)*C Sentencin3 .A/ Ei3hth Amendment Limits on Punishment -mplicit in the prohibition against cruel and unusual punishment contained in the >ighth Amendment is that punishment not be grossly disproportional to the crime committed. Weems v. United States, '*< #.$. :%& )*&*+,. .1/ 'eath Penalty The death penalty does not invariably violate the .onstitution.! $regg v. $eorgia, %'; #.$. *(: )*&<3, )addressing capital punishment imposed for murder convictions,. 7owever, the death penalty has been determined to be grossly disproportional to the crime of rape of an adult woman. .o+er v. $eorgia, %:: #.$. (;% )*&<<,. .+/ $erms of mprisonment 1isproportionate prison sentences for petty offenses may be permissible if the statute provides for parole. Com0are 4ummel v. (stelle, %%( #.$. '3: )*&;+, )life sentence for a petty nonviolent crime imposed pursuant to the state8s habitual offender law was upheld where the defendant would be eligible for parole, %ith Solem v. .elm, %3: #.$. '<<
%$
)*&;:, )life imprisonment %ithout 0ossi#ility of 0arole, imposed pursuant to the habitual offender law, upon conviction of fraudulently passing a chec5 for N*++, was deemed to violate the >ighth Amendment,. >ven in the absence of parole, a seemingly disproportionate punishment might be permissible for a serious offense. .armelin v. Mi!higan, (+* #.$. &(< )*&&*, )life sentence without parole for conviction of possession of 3<' grams of cocaine, which was the defendant8s first conviction, did not violate the >ighth Amendment,. .2/ Judicial Vindicti,eness -f a defendant successfully appeals his conviction, upon retrial and a subse/uent conviction, the trial 1udge may not impose a greater sentence in order to punish the defendant for successfully appealing the conviction. -n the absence of 1udicial vindictiveness, however, the trial court is authorized to impose a greater sentence, up to the ma0imum permitted by law, upon retrial and re"conviction. -orth Carolina v. ear!e, :&( #.$. <** )*&3&,.
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Chapter 1E %A2EAS CORP#S ( 1E)*1 Nature of %a-eas Corpus A habeas corpus proceeding is not a direct appeal but rather a collateral attac# of a conviction by which the defendant challenges the lawfulness of his detention. 7abeas corpus is a civil re!edy that mandates the release from custody of an individual being held in violation of constitutional or federal law. reiser v. 4odriguez, %** #.$. %<( )*&<:,. ( 1E)*+ Standin3 to Petition for %a-eas Corpus $tanding to bring a habeas corpus petition re/uires that at the time of such petition the defendant is in custody, which has been broadly construed to include probation, parole, release on bail, as well as the continued collateral conse/uences of a criminal sentence, e.g., loss of rights to vote and to hold public office. 3ane v. Williams, %(( #.$. 3'% )*&;',. ( 1E)*6 Petitions in "ederal Court .A/ State Prisoners Where state law provides for habeas corpus relief, state prisoners may petition for federal relief only upon exhausting all available state re!edies. The federal petition will be dismissed if the petitioner did not previously e0haust all state remedies. 4ose v. 3undy, %(( #.$. (+& )*&;',. A state prisoner will be denied federal relief if he fails to co!ply with state procedural rules governing the assertion of federal constitutional clai!s, Wain%right v. Sy+es, %:: #.$. <' )*&<<,, unless he can show cause for noncompliance and demonstrate that he suffered actual pre1udice. )ran!is v. .enderson, %'( #.$. (:3 *&<3,. $uch cause can be shown if either the factual or legal basis for a claim was not reasonably available to the defense at the time the claim should have been raised. /madeo v. 8ant, %;3 #.$. '*% )*&;;,. A state prisoner cannot relitigate Fourth !end!ent clai!s at a federal habeas corpus proceeding, Stone v. o%ell, %'; #.$. %3( )*&<3,, but can relitigate: claims regarding sufficiency of evidence used to convict. claims of racial discrimination in the grand 1ury proceeding. $i0th Amendment claims of ineffective assistance of counsel. Miranda 2:;% #.$. %:34 violations.
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.2/ "ederal Prisoners Federal prisoners see5ing a writ of habeas corpus based on trial errors or grand 1ury racial discrimination must show cause for failing to ob1ect to the errors and demonstrate actual pre1udice from such errors. United States v. )rady, %(3 #.$. *(' )*&;',. -f the petition is based on a claim of innocence, the federal prisoner generally must show that, but for the error, it is more li5ely than not that the 1ury would have found him not guilty. S!hlu0 v. Delo, (*: #.$. '&; )*&&(,.
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