CRIM PRO

I. Introduction to Due Process A. General 1. 14th Amendment No State shall [1] make or enforce any law which shall abridge the privileges or immunities of citizens of US [2] nor shall any State deprive any person of life, liberty, or property, without due process of law; [3] nor deny to any person within its jurisdiction the equal protection of the laws 2. 3 elements of due process a) notice b) hearing c) legally competent impartial tribunal having jurisdiction 3. Judge Cardozos 14th amendment due process test from Palko v. Connecticut a) Whether the lack of the right subjected the defendant to a hardship so accute and shocking that it cannot be endured b) The right qualifies as fundamental principles of liberty and justice which lie at the base of all our civil and political institutions Justice Hugo Blacks total incorporation theory: no due process theory, instead, says 14 amendment makes bill of rights applicable to states, but creates no rights other than those of the bill of rights. (Textualist) Justice Harlan: fundamental rights interpretive. Anti- incorporationist Court: selective incorporation: B. Failures 1. Powell v. Alabama (1932) Alabama ct appointed the entire state bar as lawyers for black men accused of raping 2 white women. No lawyer stepped up until day of trial a) Failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process b) Failure trial court to make an effective appointment of counsel was also denial of due process (1) Clients were prejudiced c) Butlers dissentdecision was made w/o a hearing on the point 2. How judges make decisions a) Range between Federalism and Due Process b) Reverse Federalismmany states have rejected Supreme Court rulings and interpret their state constitutions to provide more rights for its citizens c) Judicial restraintSupremeCourt doest decide case on constitutional grounds if other means exist d) Norm vs rule (1) The rule requires a particular result (2) A norm is a way of organizing ones thinking to produce the best result in a particular case C. Seeking legitimacy of the 14th Amendment 1. Slaughter House cases (1873) in dicta stated privileges and immunities clause did not incorporate the Bill Of Rights against the states 2. Duncan v. Louisiana (1968) Young black kid, driving, saw cousin in dispute with white kids, intervenes to protect cuz, slaps white. Arrested for simple assault (no proof of injury) but huge racial implications. No lawyer would defend Duncan. a) Right to trial by jury is required by Due Process Clause (argument) b) Louisiana constitution limited how u could get jury trial, jury trial found trial to be inherent c) court found deep commitment to jury trials and states must respect that. d) jury trials required where its not a petty offense. e) dissent says right to jury is a federal right., doesnt necessary make it state law. Court has imposed on states the duty to have trials, which is a good way, but not only way, to decide criminal cases. 3. Justice Black proposed total incorporation (as opposed to selective incorporation) Justice Hugo Blacks total incorporation theory: no due process theory, instead, says 14 amendment makes bill of rights applicable to states, but creates no rights other than those of the bill of rights. (Textualist) Justice Harlan: fundamental rights interpretive. Anti- incorporationist. doesnt think uniformity is way to go. A judge trial is just as fair, as long as judge is fair. Concerned about states power. dont want the fed gvmt to be new

king. States are looked at as closer to the ppl. More accessible. Court: selective incorporation: decided jury trial was required. Only adopted first 8 bill of rights. D. Norms of the criminal process 1. Foundational factors a) How the judge balances security and individual rights b) How the judge views the balance between imposition of federal supervision and granting states autonomy in the criminal justice process 2. Modern language a) Accuracy of verdicts (1) Better to let a guilty person go free than convict an innocent person (2) innocence-weighted procedural approachRequires proof beyond a reasonable doubt (a) More innocent s will choose to stand trial rather than plea bargain (b) Influences juries to the not guilty in cases involving innocent s (c) Should be more difficult to convict innocent s the guilty ones (3) Trial rights required to prevent inaccurate convictions (a) The right to confront the prosecution witness (b) To call witnesses on behalf of the defendant (c) To have the case heard in a public trial for an impartial jury fairly soon after the events in question (i) More accurate memories of the witnesses (ii) Public nature of a trial should serve as a deterrent to judges who might favor one party over another b) Fairness of the procedure (1) Implicates equality (a) Rich and poor, knowledgeable and ignorant should be able to deal with police interrogators on equal terms (2) controversial c) limited-government provisions to find or use evidence- for instance improper seizure doesnt get evidence admitted- affects accuracy. 5th amendment prevented defendant from testifying when he knows mostaffects accuracy. Provisions lessen chance that innocent can prove innocence. d) Efficiency (1) dominant concern in modern judiciary (2) A LOT of plea bargaining is accepted e) Norms Post 9/11 (1) we are vulnerable- how much liberty are we willing to sacrifice for protection (2) how much of an intrusion is the proposed gvmt action and how much safety will it buy (3) does risk justify action Krone case- flimsy bitemark evidence later dispelled by dna and saliva testing Current system fails innocent defendants. First suspect convicted. First trial didnt give krone a chance to clear self, and second sent him to prison for life even tho judge had doubts! Shitty. Finality: youre not guaranteed a true verdict, but a fair verdict. Due process should expand to bigger questions of fairness, accuracy, and innocence. II. Overview of the Fourth Amendment A. Text 1. 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 2. 2 clauses w/ no instructions on their interaction a) reasonableness clause (1) unreasonable searches and seizures BY GOVERNMENT If ur maid looks thro ur crap n finds drugs, no 4th amendment violation b) warrant clause (1) no warrants shall issue, but upon probable cause

3. does not tell you what to do if there is a violation B. The Fourth Amendment and the States 1. Wolf v. Colorado (1949) conviction by a state court for a State offense violates due process because it wouldve been inadmissible if prosecuted in a federal court due to 4th A violation a) Due process requires courts to enforce rights that are basic to our free society or implicit in the concept of ordered liberty b) Security of ones privacy against arbitrary intrusion by the police (or of 4th A) is basic to a free society c) However, the conviction was upheld b/c most states had not adopted Weeks (exclusionary rule) (1) Also there may be other ways for to enforce their rights (civil suits) C. reach of the Fourth Amendment 1. the people refers to American citizens 2. limits only government action does not apply to private searches and seizures a) does apply to people acting as an agent of the government (1) informants, people that receive instructions, etc 3. TLOSCHOOL SEARCHES a) Schools are treated differently then cops (1) they are in loco parentis and can conduct searches on a standard of less than PC D. Birth of the Exclusionary Rule 1. Weeks v. US (1914) police officers and US Marshal searched and seized lottery evidence without a warrant. unsuccessfully petitioned for their return. SC reversed a lower court decision a) If private documents can be seized and held and used as evidence the 4th A has no value b) Decision only apply to material seized by US Marshal c) police seized stuff, there is no remedy the court speaks on because 4th amendment only talks about fed. 2. Rules of Criminal Procedure a) 41(g): a person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the propertys return. b) 41(h): a person may move to suppress evidence in the court where the trial will occur. 3. silver platter doctrine a) Local police can conduct unreasonable searches and seizures then turn evidence over to federal prosecutors b) Does not apply to evidence obtained in a joint state-Federal investigation 4. Rochin Principle (1952) SC excluded evidence of morphine tablets obtained by pumping s stomach b/c it violated his due process rightsmethod of obtaining evidence shocks the conscience 5. Mapp v. Ohio (1961) reversed convicted for a state crime of possessing obscene materials w/o warrant a) At this point many states now adhere to the Weeks decision, thus Wolf is no longer controlling (1) Overruled Wolf - justices came together to overrule secret elevator meeting all evidence obtained by S&S in violation of the Constitution is inadmissible in state court- offended sense of justice b) 14th A right of privacy declared enforceable through Due Process Clause (1) 4th A is now enforceable against the states through 14th DPC c) without a remedy, the 4th amendment doesnt work. Wrongly seized evidence cannot be admissible. d) Black- with 4th amendment, also look at 5th amendment not to incriminate self. Together, these 2 amendments make an argument for a constitutional basis not to admit this evidence. t e) Harlan- says no respect for stare decisis? 4th amendment is to punish police not protect integrity of court. Thinks overstepped power boundary and is making constitution say something it doesnt. III. Passing the Threshold of the Fourth Amendment A. What is a search? 1. Gen. principles a) Before Katz (1) Used to be areas mentioned in ConstitutionConstitutionally protected areas- mimicked trespass (a) Now has someone done something to expose info to public? (2) Required physical trespass for a search (3) 4th Amendment always dealt w/tangible property b) Katz v. US (1967) reversed convictions for transmitting betting information by telephone, evidence was obtained by wiretapping a public phone booth

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(1) There was a search (even w/o physical trespass) (2) justifiably believed his conversation was private (3) Fourth amendment protects people not placesPublic exposure doctrine (a) Something knowingly exposed to the public is not protected by 4th A (i) What if it was purposefully? (ii) Public can be only 1 person (b) Something preserved as private, even in a public area, may be protected by 4th A (4) Harlan concurrence Expectation of Privacy Test (a) SubjectivePerson exhibited an actual expectation of privacy (closes himself off in booth) (b) ObjectiveSociety is prepared to recognize the expectation as reasonable (5) Blacks dissent (a) Words are not tangible, so they are not capable of being searched or described w/ particularity in advance (b) Raises a question of how you apply to modern technology (6) lip reader, may be different result b/c 2nd prongsociety may believe reading lips in glass booth is ok c) How do you determine 2nd prong of Expect Privacy Test? What is reasonable?? (1) Empirical studiespolls? (2) Norms of society Katz Doctrine an application a) Types of surveillance (1) Eavesdrop on conversationsKatz (2) false friend Government may participate in the conversation (informant)Hoffa (3) Tape record the conversationLopez (4) wired with a transmitterOn Lee, White b) Electronic surveillance (1) Law treats secret surveillance of speech largely according to whether the surveilling agent is visible or invisible to the subject (a) A visible agent gathers evidence in a fundamentally different manner than a concealed agent or hidden electronic device (b) The contents of the mind, deliberately revealed to another person, are willingly shared (c) While the secret electronically enhanced eye or ear bypasses Constitutional concern c) Hoffa v. US (1966) held that a they trust an apparent colleague, but this expectation is not protected by 4th A when a colleague is a govt agent regularly communicating with authorities (1) Amendment does not protect a wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it (2) Voluntarily exposed info to the public (3) NO electronic devices used d) Lewis v. US (1966) govt agent conceals identity and buys drugs (1) ct said no legitimate interest since invited the person in and exposed drugs to member of public; nothing from societal perspective that is reasonable e) Lopez v. US (1963) govt agent recorded (no transmitter) a conversation for evidence (1) ct said no matter what the def expectation is it is not a societal view; putting words out there f) US v. White (1971) govt agents used a radio transmitter on an informant to overhear conversations concerning narcotics. Four conversations were recorded in informants home, two in his car, one in a restaurant and one in respondents house (1) SC reversed Court of Appeals ruling dismissing the evidence (a) 4th A does not applynot a search! Words spoken to others no privacy (b) Did not violate expectation of privacyFocuses on objective prong (i) held that a defendant did not have a justifiable and constitutionally protected expectation that a person he is having a conversation with will not then or later to reveal the conversation to the police (c) One contemplating illegal activities must realize and risk to his companions may be reporting to the police (2) There is no difference between an electronically equipped and unequipped agent to require constitutional recognition

(3) Will not direct constitutional barriers to technology that improves accuracy and reliability (4) Harlans dissent (a) 1/21 notes (b) People may be more restricted in what they say b/c the govt may be listening (c) This should be a search which would be subject to a warrant requirement g) Smith v. MD (1979) SC held police use a pen register to find out who was calling did not constitute a search under the 4th Ano legitimate expectation of privacy (1) Person invoking protection of 4th A must claim a justifiable, a reasonable, or a legitimate expectation of privacy that was invaded by government action (a) Two-pronged test for Expectation of Privacy (i) Did individual, by his conduct, exhibit an actual (subjective) expectation of privacy (a) Katz languagedid he seek to preserve something as private? (ii) Whether the individuals subjective expectation of privacy is one that society is prepared to recognize as reasonable (a) Katz language viewed objectively, is the expectation justifiable (2) SC rejects the claim that he had a legitimate expectation of privacy (a) Pen registers are diff than listening devices, do not acquire contents of communications (b) Subjective prong (i) People in general realize the phone company is monitoring their calls no expectation that the numbers dialed will remain secret (ii) A person has no legitimate expectation of privacy in information he voluntarily turned over to third parties (exposed to the public) (c) Objective prong (i) Even if he did have a subjective expectation of privacy, society does not recognize it as reasonable (ii) He assumed the risk the phone company would reveal information to the police (3) Dissent Stewart (wrote Katz) and Brennan (a) Information captured by the surveillance emanated from private conduct within persons home (locations protected by fourth amendment) (b) Numbers dialed to have content (i) Reveals intimate details of a persons life (4) Dissent Marshall and Brennan (a) Just because people know phone company monitors calls for internal reasons, people dont expect the information to be given to the government (b) Ruling states person revealing information to a third party assumes risk of disclosure (i) Concept of assumption of risk is a notion of choice no choice with phone (ii) This distinguishes White, Lopez, (5) NJ requires a court order to get phone and bank records Privacy is varied. Sometimes u expect absolute other times ur aware of infringements. We want warrants. 3. Other forms of technology and evidence gathering a) Beepers (1) US v. Knotts (1983) agents put a deeper in a 5 gallon drum of chloroform and monitored his movements along public roads to a secluded cabin. Police used helicopter to pick up signal from the beeper. Beeper was OUTSIDE cabinNOT a 4th A search (a) Person traveling on public roads is no reasonable expectation of privacy in their movements he voluntarily conveyed information (b) 4th A is not prohibit police from augmenting sensory abilities with technology (c) Did not reveal information to the movement of the drum within the cabin, or in any way that was not visible to the naked eye from outside the cabin (2) US v. Karo (1984) use of beeper violated 4th A because it tracks movement inside home (a) Monitoring in a private residence, location not built into visual surveillance, violates 4th A justifiable interest in privacy b) Dog SniffsNOT a 4th A search (1) US v. Place (1983) a canine sniff does not constitute a search because it does not require opening the

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luggageless intrusive than a physical search (a) Discloses only the presence or absence of narcotics (contraband) (2) US v. Cabellas (2005) reaffirmed Place (a) No legitimate expectation of privacy in possessing contraband (b) Government conduct that only reveals possession of contraband compromises no legitimate privacy interest open fields Doctrine Hester v. US (1924) a) Entry of an open field does not implicate the fourth amendment (1) Does not need to be either open or a field b) Oliver v. US (1984) police went on property without a warrant looking for pot. Affirmed Hester in the postKatz eraentry of open fields does not constitute a search (1) May include an unoccupied or undeveloped area outside the cartilage of a home (a) Curtilagethe area to which extends the intimate activity associated with the sanctity of a mans home in the privacy of life (2) Open fields do not provide the setting for intimate activities protected by 4th A (a) Open Fields are NOT persons, houses, papers or effects, so NO search (3) Doesnt matter that the officers trespassed (a) Could have seen same thing w/air surveillance (4) No societal interest in protecting cultivation of crops c) CA v. Ciraolo (1986)police rented a plane and flew 1,000 ft over s yard to spot pot field (1) Did not constitute a search (2) Public exposure Doctrine (a) whatever can be viewed into the curtilage from public vantage point is exposed to the public d) FL v. Riley (1989)police used a helicopter to observe a greenhouse at 400 ft. property surveyed was w/i curtilage, but not a search b/c viewable from airf Curtilage a) CLfenced in area around home b) New test from Dunn to define curtilage (1) Proximity to home (2) Whether area is within an enclosure surrounding the home (3) Nature and use of area in question? (4) Steps taken by resident to ensure privacy/protect from observation? garbage bags are fair game EXCEPT in NJ (California v. Greenwood) technological limits a) Kyllo v. US (2001) use of a thermal imaging device and at a private home from a public street constituted a search within the meaning of the 4th A. (1) Katza 4th A search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable (a) reverses the post-Katz trend of pro-law enforcement rulings (2) New test for 4th A search !!!!! (a) Using sense-enhancing enhancing technology (b) To gain information regarding the interior of the home (c) That could not otherwise not have been obtained without physical intrusion into a constitutionally protected area (d) Where technology in question is not in general public use-- converting heat to an image. (e) Scalia- heavy textualist. HOME is vital to him. Says u wont know if search is constitutional until after its done (based on how intimate the findings are (3) Dissent (Stevens) (a) No details of the interior were revealed (b) Contrast off-the-wall versus through the wall surveillance Heat is being given off, like aroma- its been released its public PLAIN VIEW feeling up bags a) Bond v. USborder patrol squeeze bags on bus, felt brick-like object and discovered drugs (1) Violated 4th A as a searchpeople dont expect bags will be felt in exploratory manner by PO

B. What is a seizure? 1. property a) seizure occurs when there is some meaningful interference with an individuals possessory interest in the property 2. person a) an arrest b) when an officer, by means of physical force or show of authority has restrained the liberty of a citizen 3. object subject to seizure a) police officers may seize what they have probable cause to believe is critical evidence (1) contraband (2) fruits of a crimemoney from bank heist (3) instrumentalities used in the commission of an offensegun, etc (4) mere evidence (a) item of value solely because it will help in the apprehension or conviction of a person for an offense (b) blood stained shirt 4. US v. Karo (1984) installation of a beeper in a can of ether did not constitute a seizure when transferred to a) It may have contained an unknown and unwanted foreign object, did not interfere with possessory interest in a meaningful way b) Dissent (Stevens) (1) Inserting a deeper infringes on exclusionary right to possession (2) Government was asserting dominion and control over the property a seizure IV. Substance of the Fourth Amendment A. Probable cause 1. introduction a) probable cause is the traditional standard of the fourth amendment (1) If there is probable cause the search or seizure was reasonable b) Substantial basis (more than a mere suspicion) (1) Not more likely than not. c) Police may obtain through their 5 senses (1) b/c of training/knowledge they may interpret stimuli differently d) reasonably trustworthy info (doesnt need to be true) e) common sense analysis of info available f) Probable Cause to Arrest (1) Exists when facts and circumstances, known personally to the officer, or reasonably trustworthy 2nd hand information, would be sufficient to suggest to a person of reasonable caution that (a) a crime has occurred and (b) that D has committed it. g) Probable Cause to Search (1) Exists when the facts and circumstances known personally to officer and or has reasonably trustworthy 2nd hand information that would be sufficient to suggest to a person of reasonable caution that he will find criminal evidence where she is looking. h) Warrants may only be issued if there is probable cause. 2. to establish probable cause from a 3rd party a) Aguilar test affidavit must show: (1) underlying circumstances to support tip information (basis of knowledge prong) (a) How does the informant know of the info? (2) credible informant or reliable information (veracity prong) b) SC has stated that a description that is extremely detailed will make up for questionable credibility (1) Draper v. USdetailed info about how would be dressed at train station (2) Since the rest of the details are true, there is probable cause to believe all 3. establish credibility of an informant a) track recordgood evidence in the past

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b) information is against informants penal interest c) debrief informant about things you can be corroborate d) anonymous tips have no credibility under Aguilar (different than a citizen informant) e) citizen informants are per se credible Spinelli v. US (1969) was arrested for gambling activities based upon a tip and FBI surveillance corroboration. SC reversed b/c not a sufficient basis for probable cause a) Affiant swore his confidant was reliable offered magistrate no reason to support this conclusion b) Tip did not discuss underlying circumstances that he was running a book making operation (1) No first-hand observation (2) No statement detailing the manner in which the information was gathered (3) tip must describe criminal activity in sufficient detail so the magistrate knows he is relying on something more than a casual rumor circulating in the underworld, or a general reputation c) polices station is not sufficient basis for a finding of probable cause d) court should use a common sense method of observing the warrant (1) by a neutral and detached magistrate e) Aguilar-Spinelli test for a search warrant (1) Basis of knowledge Prong (a) A magistrate must evaluate information from a secondary source (informant) (i) Assess the credibility of the source (ii) Weigh all the information furnished if he believes to be true (2) Reliability or veracity prong (a) To determine probable cause (i) Evaluate the truthfulness of the source of information (a) Judging the integrity of the person (ii) Evaluate the adequacy of the factual premise furnished by that source to support the validity of the sources conclusion (a) Judging the logic of the proposition f) Prof says to follow Aguilar-Spinelli in real life; if you dont have enough for one prong, maybe you have more in the other that can measure up; put everything in application and disregard Gates Totality of the circumstances test a) magistrate needs to make a practical, common sense decision given the circumstances set forth in the affidavit, including the veracity and basis of knowledge of the persons supplying the hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place b) Illinois v. Gates (1983) husband-and-wife running drug operations from their house ratted out by anonymous letter. Lower courts ruled there was no probable cause, SC reversed. (1) Under Spinelli there was no credibility (anonymous) or basis of knowledge (fails both) (2) Totality of circumstances test replaces to pronged Spinelli test (a) Informants veracity or reliability and his basis of knowledge are two channels (b) this allows a deficiency in one to be compensated for by a strong showing in the other (i) 2 prong test was excessively technical-- what if 2 prongs not satisfied but other facts seem to fit (c) permits a balanced assessment of the relative weights of all indications of reliability confidential informant a) Names are not generally divulged (1) They dont want to be known (2) Involved in other investigations b) Only divulged when informant is involved in the offense PC requires reasonably trustworthy info; doesnt say you need true info Important! oath and affirmation requirement of 4th A (note 6 p. 156 a) A police officer is normally considered reliable b/c under oath b) To challenge the truth of an affidavit (Franks v. DE) (1) Make a substantial preliminary showing a false statement knowingly, or w/ reckless disregard was included in affidavit (2) Established by preponderance of evidence (3) w/false material set aside, if remaining content does not give probable cause, search warrant is void and evidence is excluded

c) does not apply if the claim is the informant lied NJ 3:5A reasonable suspicion a) If you have reason to believe someone committed a crime you can detain them for 5 hrs b) Allows collection of scientific data c) Hypocrime scene where 1 of 10 people is guilty 10. Staleness of probable cause a) considerations (1) Length of time (2) Nature of material (3) Place to be searched b) Behrel v. State (2003)priest accused of sexual abuse 16 yrs ago, PC to issue warrant 11. Anticipatory Warrants a) A warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place. b) Requires the magistrate to determine (1) That it is NOW PROBABLE that (2) Contraband, evidence of a crime, or a fugitive WILL BE on the described premises (3) When the warrant is executed. c) It must be true not only that if the triggering condition occurs (1) there is a fair probability that contraband or evidence of a crime will be found in a particular place, but also (2) that there is probable cause to believe the triggering condition will occur B. Warrant requirement 1. THREE RULES a) It must be issued by a neutral and detached magistrate b) adequate showing of PC (Either to search or arrest) supported by oath or affirmation. (1) This is usually in the form of an affidavit from a police officer. c) warrant must describe with particularity place to be searched and the items or persons to be seized 2. Searches conducted outside of judicial process without prior approval of magistrate are per se unreasonable under the 4th and subject to a few well delineated/.specific exceptions 3. the area that may be legally search is broader when executing a search warrant than arrest warrant C. Arrest warrant 1. Common Law std for arrest a) probable cause to believe a crime was committed b) applied to public places and homes 2. Payton v. New York (1980) police went to arrest (without a warrant) for murder, he was not home, they broke into his apartment and found a .30 caliber shell casing admitted as evidence a) SC reverse judgments because no arrest warrants were attained b) physical entry of the home is the chief evil against which the wording of the 4th A is directed (1) Absent exigent circumstances, cannot cross the threshold of the home without a warrant c) lower court relied on Watsoncommon-law rule that a warrantless arrest in a public place is valid if the arresting officer had probable cause to believe the suspect was a felon (1) SC distinguished Payton b/c the home is not a public place Riddick: 3 year old son answers the door, police arrest dad. No warrant. Search n find drugs. Drugs charges, try to get evidence suppressed. No arrest warrant in payton or Riddick, so no good. 3. Gerstein hearings a) A policemans on the scene assessment of PC requires judicial affirmation for extended restraint of liberty b) Standard is the same as that for arrest probable cause to believe suspect has committed a crime c) Usually must provide a probable cause determination within 48 hours after a warrantless arrest 4. use of force a) police officer may not use deadly force to prevent the escape of fleeing felon (1) unless probable cause to believe the suspect poses a threat of serious physical harm 5. warrantless intrusions justified by a) exigent circumstances (1) hot pursuit of a fleeing felon 9.

(2) imminent destruction of evidence (3) the need to prevent a suspects escape (4) the risk of danger to the police or other persons inside or outside of the dwelling b) consent 6. suspect in the doorway a) if you knock and answers the door, doorway is considered a public place (1) Common-law arrest applies if you have probable cause b) If you knock and slams the door and goes back into his house Exigent circumstance (hot pursuit) 7. Steagald principle arrests in a third persons residence a) Arrest warrant for one person does not equal search warrant or third persons dwelling b) Arrest warrant is issued b/c probable cause exists to believe the subject has committed an offense (1) Serves to protect an individual from unreasonable seizure c) Search warrant is issued upon showing of probable cause to believe the legitimate object of a search is located in a particular place (1) Protects individuals interest in privacy of home & possessions against unjustified intrusion by police 8. arrest warrant, search warrant or both? a) Have to worry about whose premises it is (1) If then arrest warrant is enough (a) Must have reason to believe (not PC or reasonable suspicion) that person is on premises (i) Car in driveway, lights on, snow shoveledsome reason to believe that person is there (ii) Why? Dont want to turn arrest warrant into search warrant (2) If third-partys premises must have arrest warrant and search warrant D. Search warrants 1. The Constitutional Debate 2. elements of a valid search warrant a) Constitutional requirements (1) Neutral and detached magistrate (2) probable cause, (3) supported by Oath or affirmation, (4) particularly describing (a) the place to be searched, and (b) the persons or things to be seized b) in NJ Deputy clerks, Court administrators, court clerks have authority to issue AW but not SW (only judge) (1) who the f are these people? Not lawyer, not judge, but staff Im really qualified c) Lo-Ji Sales v. New York (1979) NY State police rented porn and got a warrant to search s store and seize additional copies of the 2 films and items determined to be obscene (not listed) (1) The Town Justice went on the search and watched a lot of porn, seized movies and mags (2) Search warrant went from 2 pages to 16 after stuff was confiscated: started out so general and then the police added all the stuff after the fact. POLICE STATE (3) Town Justice went from neutral magistrate to leader of a search party d) Warrant Particularity (1) Intended to prevent general searches (a) the immediate evil that motivated the framing and adoption of the Fourth (b) and to prevent the seizure of one thing under a warrant describing another. (2) Nothing should be left to the discretion of the officer executing the warrant. (a) The description should be sufficiently precise so that the officer executing the warrant can with reasonable effort ascertain and identify the place intended. (3) The validity of the warrant must be measured based on the information known at the time the warrant was issued (a) Md v. Garrison- The subsequent discovery that the third floor was divided does not retroactively invalidate the warrant. 4th amendment: really was speaking to preventing general warrants TRADITIONAL VIEW Warrantless search is per se unreasonable, subject to narrow exceptions

NEW MAJORITY VIEW All searches just have to be reasonable Social control v. civil liberties Execution of a Search Warrant a) KNOCK AND ANNOUNCE (1) Wilson v. AK common law knock and announce principle forms a part of the reasonableness inquiry under the 4th Amendment. (2) Police must have reasonable suspicion that knocking and announcing their presence before entering would be dangerous or futile, or inhibit the effective investigation of the crime. (a) Circumstances justifying a no knock entry require reasonable suspicion (low threshold) (i) a threat of physical violence (ii) escape (iii) destruction of evidence (3) Richards v. WisconsinWI Ct ruled Police are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. (a) There is an assumption that all felony drug crimes will involve an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police (b) court concluded principal intrusion on individual privacy interests comes from the issuance of the search warrant, not the manner in which it is executed (c) SC ruled the fourth amendment doesnt permit a blanket exception to the knock and announce rule in all felony drug cases but here this was a reasonable decision. Has to be a case by case decision on exceptions to knock and announce (4) How long do you need to wait (a) US v. Banks (2003) SC ruled 15-20 sec is reasonable b) Anticipation of a warrant (1) Police can prevent person from entering their home if police have PC there is criminal evidence, even when police are waiting on a search warrant (IL v. McArthur) c) The scope of search of the premisesdefined by PC (1) Police may search containers large enough to hold the criminal evidence for which they are searching (2) They may seize an object not described in the warrant, if they have probable cause to believe it is a seizable item (3) Information that becomes available to officers immediately before or during the execution of a warrant may require them to cease or narrow their search, notwithstanding the dictates of the warrant. (4) Search limited to those areas where you are likely to find the items listed in the warrant, this controls the outcome. d) Searching a person v. Searching a home (1) A warrant may authorize the search of a person, but it should be explicit. (2) A warrant to search a home or other premises does not provide implicit authority to search persons found at the scene (a) even if the criminal evidence for which the police are looking might be on them. e) Seizure of a person during a search? (1) A warrant to search a residence for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. (Michigan v. Summers) (2) Inherent in Summers authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. E. Warrant Clause: When are Warrants Required? 1. Exigent Circumstances a) Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries (1) Must be a serious crime, usually involving guns b) Exist when (Minnesota v. Olson) 3.

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(1) Hot pursuit of a fleeing felon (a) felonies usually involving guns (b) does not need to be immediate (c) pursuit must be continuous (2) Imminent destruction of evidence (3) INeed to prevent a suspects escape (4) Risk of danger to police or others inside/outside of the dwelling c) Warrantless Entry of a Home III (The Emergency Doctrine) (1) to assist persons who are seriously injured or threatened with such injury. (a) Law enforcement may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant (b) Brigham city v. Stewartpolice entered the home w/o warrant after witnessing a fight through a window. (i) Exigencyto assist persons who are seriously injured or threatened w/serious injury (ii) Also CL breach of the peace (2) Factors to consider when determining if an emergency exists (a) Gravity of the underlying offense for which the arrest is to be made (i) Welsh v. WIpolice entered suspect house to obtain a blood sample for drunk driving (noncriminal offense) Not sufficient justification (b) Reasonableness (objective) d) Warden v. Hayden (1967) SC upholds ruling that warrantless search and seizure appropriate (1) Cab drivers who had witnessed an armed robbery followed the perpetrator to a house and watched him enter. The police arrived within 5 minutes, entered the house, and proceeded to search for the robber. (2) While they were looking for him, they found and seized evidence connected to the robbery. The defendant was eventually found and arrested. (3) RULE: A warrantless search of a home is justified when (1) it was in hot pursuit; and (2) the cops had probable cause that the suspect was in the home. (4) The scope of this search is anywhere in the home where there is probable cause to believe the suspect, weapons, and/or incriminating material may be hidden or found. (5) The permissible search ends when the exigency is overso once the police find the weapons and the suspect, they must stop searching. (6) Note that a police officer in this case searched in the washing machine and found clothing (a) He was looking for suspect AND MONEY (not weapons) (b) SC said their was an inference he was looking for weapons e) Murder Scenenon exception (1) A possible homicide presents an emergency situation demanding immediate action. (2) When the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. (3) Mincey v. Arizona- Murder scene. Police found injured people. Somewhat later an investigative team arrived and began a huge investigation that lasted 4 days. (a) Lower court created a murder scene exception. (i) Possible homicide presents an emergency situation demanding immediate action (b) SC reversedwarrantless search must be strictly circumscribed by the emergency that justified the initiation (i) Emergency was long over Searches Incident to an Arrest a) Gen. principles (1) Probable Cause requirementthere must have been a valid arrest. (2) Searching after D is removed is not incident to arrest because there is no threat to Police (a) once the immediate exigencies of the arrest disappear so too does the excuse for circumventing the warrant process. (3) Underlying Rationale (a) Disarming the Arrestee: Upon arrest, there is a danger that the arrestee may violently resist with weapons that may be within his reach. (b) Preserving Evidence: Upon arrest, there is a danger the arrestee may attempt to conceal or destroy

evidence within his reach. (4) Scope (a) The search incident to arrest must be limited to: (i) The arrestees person (a) An officer may perform a full-search of the arrestees person incident to the arrest, regardless of the crime the individual is arrested for (from driving without a license to murder); and (ii) The area within the arrestees immediate control. (a) The area from within which a suspect might gain possession of a weapon or destructible evidence (b) In a home this is limited to the room of the arrest (not any closed containers). (c) In a car this includes the entire passenger compartment as well as any closed containers (not the trunk). (b) Must be an arrest, not simply after issuing a traffic citation (c) The reasonableness of a search is underlying reason expressed by 4th A (d) Arrests are lawful if there is probable cause b) Searches of house (1) Chimel v. California (1969)Whether the warrantless search of the petitioners entire house can be constitutionally justified as incident to that arrest (a) Police arrested and then searched entire house for evidence (b) Rabinowitz held a warrantless search may extend to area considered in possession or under control of the person arrested (whole house) (c) SC overruled Rabinowitz and Harris standards (i) search area cannot go beyond area within immediate control of arrestee (a) person arrested might obtain weapons or evidentiary items c) Searches of the person (1) US v. Robinson (1973) was validly arrested for driving without a license (a) PO searched and found cigarette pack containing heroine (b) Court of Appeals ruled only reason for a full search incident to a lawful arrest was the possible discovery of evidence for fruits of crime (not possible w/ this crime) (c) SC reversed A lawful arrest establishes the authority to search, reasonable under 4th A (2) Terry v. OH protective frisk for weapons in a case w/o probable cause for arrest (a) Distinction in purpose, character and extent between a search incident to an arrest and a limited search for weapons (b) Search for weapons (i) limited for the discovery of weapons might be used to harm officer or others (ii) not a full searcheven though it remains a serious intrusion (c) arrest is the initial stage of criminal prosecution (i) inevitably accompanied by restrictions d) Arrests of automobile occupants: a special rule? (1) New York v. Belton (1981) SC made a bright line rule for auto searches (a) PO pulled over a speeding car. Smelled weed, arrested 5 occupants. Found Supergold envelope on floor, then searched jacket on backseat which contained weed and coke (b) SC ruling: a lawful arrest justifies a contemporaneous search of person and passenger compartment including all containers (not trunk) (i) Protect PO from weapons and prevent destruction of evidence (ii) Passenger compartment is within immediate control (c) Brennan dissentChimel had temporal and spatial limitations (i) Here he was arrested and couldnt reach weapons or evidence (2) Search incident to lawful citation (a) Knowles v. IowaSC held cannot search incident to a traffic citation (i) Neither of the underlying rationales (preserving evidence and protecting the PO) for the search incident to arrest are sufficient to justify a full search incident to a traffic citation (b) Atwater v. Lago Vista woman arrested for not having seatbelt on children, filed suit claiming city lacked constitutional authority for custodial arrest for minor offenses

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(i) SC held arrest for misdemeanors does not constitute unreasonable seizure under 4th A (ii) Requiring PO to decide if crime is fine-only in heat of moment creates greater legal conseq (iii) 4th A imposes the same standard for all crimes: probable cause (c) Now an officer who wishes to search her car following a traffic stop is powerful incentive to make a custodial arrest (i) Atwater allows custodial arrest regardless of traffic offense (ii) Knowles allows search of the car after lawful arrest (3) Thorton v. US (2004)SC held a recent occupant of a car is subject to Belton search (a) parked and walked away from car when PO approached and arrested him. After frisk, found drugs on , searched car and found a gun (b) Search ok b/c he was a recent occupant (4) Arizona v. Gant (2009) arrested for driving under suspended license, locked up in cruiser (a) Did not overrule Belton (b) Searches incident to arrest stop when arrestee is handcuffed and in police car (c) Exceptionwhen reasonable to believe evidence of crime may be found (or within reach of arrestee at time of search) (does not require PC) (i) Stopped and smoking jointok to search (ii) Stopped for revoked licensecant search (scalia says this is not as specific as desired, but otherwise too wide and unconstitutional) e) Pretextual stops and arrests (particularly in automobiles) (1) Whren v. US (1996) pretext doesnt matter if there is a legitimate reason to stop car (PC) (a) PO pulled over a car for a traffic violation w/subjective belief drugs may be found (b) Regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation (OBJECTIVE) SCALIA wrote majority opinion. Warrant requirement diminishing more exceptions Cars and Containers a) AUTOMOBILE EXCEPTIONS (1) If police have PROBABLE CAUSE that criminal evidence is contained in the car, Police may search an entire motorized vehicle, without a warrant, including the trunk (a) reasoning (i) inherent mobility of the vehicle creates exigencies (ii) potential for destruction of evidence and (iii) removal of car from jurisdiction. (b) Carrol v. US (1925)car searched on highway without warrant for bootleg liquor, PC to search car but not to arrest the individual (not a search incident to arrest) (i) Search of car at scene or seize car and get warrantconstitutionally equal (2) If PC to search the vehicle exists, police can seize the vehicle and search at the station house where the car is no longer mobile and may not be removed from the jurisdiction (a) Chambers v. Maroney (1970)SC upheld warrantless search of the vehicle at station (i) Could have searched the car on the street (ii) PC still existed at station and so did mobility issue (3) If exigency no longer exists, cant use automobile exception (a) Coolige v. NH (1971)Police searched 2 cars parked in driveway 2 hrs after was arrested and several times over next 2 yrs (i) Should have gotten a search warrant, there was PC and time b) Reduced expectation of privacy (1) Lesser/reduced expectation of privacy in automobiles (a) Highly regulated by DMV (b) Content/occupants viewable by the public (c) Cars for transportation NOT personal repository/residence (2) Mobile homes (a) Typically falls within the automobile exception (i) readily mobile

(b) California v. Carneypolice entered mobile home without a warrant after receiving information weed was exchanged for sex, found weed inside (i) automobile exception applied b/c objective observer would conclude not a residence What does society think it is? A vehicle c) automobile inventory (South Dakota v. Opperman-1976) (1) requirements (a) lawful impound of vehicle (b) written policy governing inventory process (c) cant be a pretext for a search (2) inventory of a car after being impounded is NOT a search (4th A does not apply) (3) reasons to inventory without warrant or probable cause (a) to protect car owner against theft of property (b) to protect police against false claims of theft (c) need to look for dangerous instrumentalities that could endanger police or others d) Containers in cars (1) Luggage automobile exception does not apply- cannot search luggage private person prop (a) Reasons for allowing warrantless search of car do not apply to personal luggage (i) Very high expectation of privacy (a) Contents are not open to public view (b) Not subject to regulation (unlike vehicles) (ii) Not a mode of transportation but instead holds personal affects (b) US v. Chadwick (1977)PO knew had a locked steamer trunk of weed, arrested at train station when luggage was put in car trunk, opened luggage at station (i) Police had PC to search luggage (but no warrant) (ii) Govt tried to use reasonableness standard analogous to automobile from chambers (automobile exception) Court saw relationship between luggage and car as coincidental- locked footlocker not part of area from within which suspects could gain possession of a weapon or destructible evidence. (a) Luggage is entitled to warrant clause protection (i) Expectation of privacy in luggage >> car (ii) Luggage is not open to public view (iii) Also tried search incident to arrest (a) No goodnot contemporaneous, suspect secured in car, cant get shit, need warrant GANT (iv) Must get a warrant to search luggage: Justice Burger Expectation of privacy with luggage, there is diminished expectation of privacy with automobile (because ur in plain view, under heavy regulations traffic law) (2) Some containers do not have a reasonable expectation of privacy because contents can be inferred from their outward appearance (gun case, etc.) (3) Containers coincidentally in cars (b) US v. Ross (1982) police had PC to believe sold drugs in trunk of car at a specified location. Stopped and searched the car trunk found heroin in brown paper bag. (i) SCwarrantless search valid (ii) A warrant to search a vehicle would include every part, including containers (a) Same rule should apply to warrantless car searches occurring because of probable cause (iii) Under Carroll-Chambers-Carney (Probable Cause for warrantless search of car) police may also search any container found during a car search that is large enough to hold evidence (c) California v. Acevedothey can do anything! brown paper bag in trunk with marijuana (i) Police had Probable Cause that the bag contained drugs, no PC to search car (ii) SCwarrantless search of container is valid if police have PC (iii) 4th A does not require a warrant to open the sack in a movable vehicle simply b/c police lack PC to search the entire carcan open sack! But can look in passenger compartment search incident to arrest. (b) Chadwick is still good law

(c) Since police have authority to seize property, warrant is forthcoming (iv) Same bag needs a warrant if is stopped before getting in car

ACEVEDO Issue: Does the 4th Amendment require the police to obtain a search warrant in order to search a container or package in a car when there is probable cause to support a search of the entire vehicle? Holding: No! A warrant is not required to search a container, package, or compartment within a vehicle provided that there is probable cause to believe that the object is in the vehicle. Cars are movable instruments in which evidence can easily be spirited away where it will never be found again by law enforcement!
(4) Containers belonging to passengers (a) PO w/ PC to search a car may inspect any passengers belongings found in a car that are capable of concealing the object of the search (b) Wyoming v. Houghton (1999)search of passengers handbag valid (i) PO lawfully stopped car and found syringe on driverPC to search car for drugs (ii) Found purse in backseat that belonged to passenger (a) PO did not have PC to believe she used drugs (b) Driver was not under arrest (iii) SCgovt legitimate interest in effective law enforcement justified a search of all our containers that might hold drugs, not just those belonging to driver Plain view (and Touch) Doctrines a) Does not implicate searches, it involves seizures b) Requirements (1) Lawful prior intrusion (warrant, consent, valid exception to warrant requirement) (a) Plain view doesnt get you in! (2) PC item viewed is evidence (immediately apparent) (3) Discovery of evidence must be inadvertent (no longer required after Horton) (a) Doesnt turn a valid limited search into a general one c) Horton v. California (1990) police had PC to search s home for weapons and fruits of crime. Search warrant only indicated proceeds (1) Search did not turn up stolen property, but found weapons in plain view and seized them (2) PO stated he was interested in finding other evidencenot discovered inadvertently (a) Seizure was validscope of search was not enlarged (i) Rings are small, so search is extensive (ii) Immediately apparent they constituted incriminating evidence (iii) Inconvenient and impractical to obtain a warrant for item in plain view d) AZ v. Hicks (1987) PO move stereo equipment to look at serial numbers constituted a search (1) Not a seizuredid not effect possessory interest--but is is search (2) Stereo was in plain view, but incriminating nature was not immediately apparent (a) Outside scope of PCONLY looking for weapons (b) PO only had reasonable suspicion in regards to stereo < PC (3) Probable Cause is required to invoke plain view doctrine e) Plain touch (1) Minnesota v. Dickerson (1993) warrantless seizure is justified if found through sense of touch a lawful search and object is immediately apparent as contraband Consent a) A validly obtained consent renders a warrantless search reasonable and renders PC unnecessary. (1) NO WARRANT OR PROBABLE CAUSE REQUIRED WITH VALID CONSENT. (2) A valid consent must be (a) VOLUNTARY and not the result of coercion (b) NOT subject to express/implied coercion or duress (c) Made by person with actual or apparent authority to consent (d) Officers actions does NOT exceed SCOPE of consent

4.

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(e) Government has the burden to prove consent was voluntary (i) Totality of the circumstances (a) Subjects knowledge of right to refuse is a factor, but not dispositive (b) Tactics used by the police to secure consent (c) Vulnerabilities of the subject (intelligence, language barriers, etc) (3) Schneckloth v. Bustamonte (1973)6 guys in a car, stopped late at night driver consented to search, three stolen checks were found in the backseat (a) When subject of a search is not in custody, states must demonstrate consent was voluntarily given and not the result of express or implied duress/coercion (b) SC adopts totality of circumstances test b) Co-occupants (1) Actual Authority (a) Co-occupant can consent if has authority/control over premises. (i) Landlord cannot do so; neither can hotel clerk; children may not, servants may not (ii) if 2 people mutually use property, each of them assumes the risk that one of them will consent to a search (b) US v. Matlock (1974) (i) Valid warrantless entry and search when police obtain a voluntary consent of an occupant who shares authority over a common area with a co-occupant who later objects to the use of evidence obtained (ii) Shared tenancy is understood to include an assumption of risk (c) Physically present inhabitants express refusal of consent to a search is dispositive as to him, regardless of the consent of a fellow occupant (i) Georgia v. Randolph (2006)wife consented to a search, husband refused, search invalid (a) Husband was at the door when he denied entry (b) Once the police are inside, search is valid (2) Apparent authority (a) Reasonable belief individual had the authority to consent can validate an entry (i) If enough PC for a warrant, apparent authority is justified (b) Illinois v. Rodriguez (1990)woman was severely beaten, took police to boyfriends apartment, he was sleeping when they arrived, arrested for drugs and paraphernalia (i) claimed she left several weeks earlier and had no authority to consent to entry (ii) SC ruled entry was valid b/c reasonable belief was justified c) Scope of consent (1) Can set temporal or special limits (2) Can withdraw consent at any time (3) objective reasonableness what would a reasonable person have understood by the exchange between officer and suspect? (4) Florida v. Jimeno (1991) car stops for traffic violation, PO told he suspected drugs are in the car, consented to search (a) When person gives officers general, unrestricted consent to search for narcotics in his vehicle, it is reasonable that the consent extends to the vehicle itself and any unlocked containers that may contain contraband d) NJ wrinkle (1) CartyNJ police cant ask for consent to search car unless has reasonable suspicion of criminal activity (a) Guard against consent due to intimidation Reasonableness clause: The Diminishing Roles of Warrants and Probable Cause 1. general a) Seizure (1) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person b) To determine if search and seizure were unreasonable (1) Was the officers action justified at its inceptionreasonable suspicion (2) Was it reasonably related in scope to the circumstances which justified the inference c) Justification for the particular intrusion the PO must be able to point to specific and articulable facts, taken

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with rational inferences, reasonably warrant the intrusion Camera v. Municipal Court4th As protections extended to housing inspections a) Reasonableness became an independent factor in 4th A analysis b) Prior to Camera, search or arrest was reasonable only when warrant was based on PC (1) facts sufficient to justify cautious person a crime was committed (individualized suspicion) c) After Camera, reasonableness in the form of a balancing test defined PC (1) Expanded range of acceptable government behavior beyond intrusions based on individualized suspicion (2) Includes activities where government interests outweigh individuals privacy interests Balancing Test: a) Balance the government interests with the individuals privacy (1) Government Interests (a) Detecting crime and ensuring the security and safety of the police officer. (b) The safety of the officer becomes an interest when he begins the confrontation with the suspicious individuals. (2) Individual Intrusion: (a) A limited search, only for weapons, in the form of a simple pat-down is less intrusive than full blown searches. b) When the governments interest is high and the personal intrusion is low, a lesser standard of cause is permitted. c) As government interest goes up and the individuals interest in privacy goes down, the Court adjusts the level of cause that is necessary to justify the search the Terry Doctrine a) No warrant requirement and no probable cause, Court permits lesser standard of reasonable suspicion to justify lesser, more minimal intrusion. Different levels of intrusion: Common law right to inquire Stop/temporary detention Frisk/pat down Custodial arrest Full search incident to arrest Analysis- avoids any discussioin of warrant clause Dilution: nullification of probable cause (1) Since no warrant or PC requirements, then look at police conduct and taking all circumstances and weigh government need against invasion of individuals privacy that search and seizure to determine whether the search was reasonable b) Stop & Frisk AKA Terry Search (1) Two-part test (must have both) (a) reasonable suspicion criminal activity is afoot (i) An officer must be able to point to specific and articulable facts, which he is entitled to draw in light of his experience, that warrant the intrusion. (ii) Police officers are NOT permitted to rely on an unarticulated hunch or suspicion (b) reasonable suspicion to believe person is armed and dangerous (i) Would a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger (2) Scope of search (a) pat down of outer clothing confined to an intrusion Limited to discover weapons c) ***Terry v. Ohio (1968)SC upheld limited search outer clothing for weapons if reasonable suspicion exists that suspect is armed and dangerous (1) PO frisked 3 men after seeing suspicious behavior, found guns (2) Procedure- criminal activity may be afoot (a) PO must ID themselves as PO, (b) make reasonable inquiries of people stopped (c) if nothing dispels reasonable suspicion that person may be armed and dangerous

(d) permitted to briefly stop and detain an individual (e) can conduct limited search of outer clothing to discover weapons which May be used against PO d) Terry frisk and plain touch doctrine (1) MN v. Dickerson pat-down search revealed no weapons, but PO felt small lump in jacket (a) object was not immediately apparent and was manipulated to determine if it was worthy of seizure went beyond scope of Terry frisk; (b) if weapon upon pat down then take it (c) If immediately apparent as drugs then plain feel would have allowed the confiscation e) Terry Searches and traffic stops (1) To determine if a search is unreasonable under Terry (a) Was POs action justified at its inception (b) Reasonably related in scope to the circumstances which justified interference in 1st place (2) Dog sniffing procedure does not constitute a fourth amendment search (a) Doesnt change character of motor vehicle stop that was lawful at its inception unless dog sniff prolongs stop beyond normal timeframe (b) No constitutionally protected interest in possessing contraband f) No reasonable suspicion person is armed (1) Sibron v. NY PO saw talk with no drug addicts over the course of an eight hour period (a) PO confronted and said you know what Im after, (b) reached inside pocket, PO then thrust his hand in pocket and pulled out heroin packets (c) arg nothing about encounter that suggests that he has a weapon, PO statement implies drugs but no reasonable suspicion that had drugs (i) need reasonable suspicion that selling drugs to approach and then reasonable suspicion that armed and dangerous (d) CT held that no reasonable suspicion to frisk (i) Terry allows pat down (unless you know where the weapon is) but other than move nothing to suggest that has weapon; (ii) doesnt do a pat down but instead sticks hand where he is reaching and ct says that goes beyond scope of pat down (iii) prof thinks if same case went up today it would be diff conclusion (2) US v. Reyes - What if the po asks to empty pocket; (a) its less intrusive than pat down and 5th circuit said thats okay; (b) What if he says no and doesnt want to empty? What does the cop do? (i) Try to justify it under a frisk analysis; maybe this is just an inquiry case since cop can ask anyone to empty pocket g) Terry seizures versus de facto arrests (1) Arrests (seizures of persons) require probable cause. (a) 4th Amendment seizures must be based on probable cause, nothing less, and individual may be arrested or seized by show of authority, which may be tantamount to arrest U can be stopped for one thing and questioned about something else (2) Investigative detention (a) Dunaway v. NY (1979) seized b/c police had reasonable suspicion that he possessed intimate knowledge about a serious and unsolved crime (i) Was not told he was under arrest still a seizure (ii) Different from Terry b/c intrusion was not brief and narrowly circumscribed (3) Duration of Terry stop (a) Time alone is not dispositive issue, its what happens during the time (b) Balancing test measures the time versus the purpose and the time necessary to do that (i) Computer system down? Can you make him wait? Yes just needs to be reasonable (c) US v. Sharpedriver was detained 20 minutes (i) The appropriate time to examine whether the PO diligently pursued means of investigation that was likely to confirm or dispel their suspicions quickly (ii) Look at whether PO is acting swiftly or (iii) Acted unreasonably in failing to recognize or pursue some other alternative h) Moving the suspect (1) PA v. Mimms (1977) validly stopped for a traffic citation, PO ordered him out of the car, PO

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noticed a bulge which turned out to be a gun and seized it (a) SCPO that legally stops a driver can order him out of the car without further justification (i) Balance safety of PO vs. minor intrusion since theyve already been stopped (2) MD v. The (1997) PO can order passengers out of car as well (a) once car is stopped, driver and passenger have been seized (3) NJ PO need additional reason (not reasonable suspicion) to order passengers out of car (a) needs to be able to point to something that would allow for heightened concern seizure versus non-seizure encounters (1) person is seized when a reasonable person would believe that he was not free to leave (2) FL v. BostickPO boarded a bus at a scheduled stop and ask passengers permission to search their luggage, agreed and they found cocaine (a) In this type of situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers request or otherwise terminate the encounter. (3) US v. Mendenhall (1980)DEA agents approached women at Detroit airport (a) Stop her only because she fit a profile (b) Told her she could decline the searchshe consented (c) SC held police did not seize the defendant (i) A person is seized only when a means of physical force or a show of authority, his freedom of movement is restrained (4) US v. Drayton (2002) two guys stopped on the bus and search for drugs (a) Routine drug and weapons interdiction effort by police no idea anything bad (i) PO asked passengers if they could search luggage and person (b) No seizure if reasonable person would feel free to decline the officers request (c) Reaffirms that inquiries are separate and PO can ask questions at any time (5) Seizure by Show of Authority (a) Seizure by show of authority requires/exists when (i) An officer by means of physical force or show of authority (ii) Terminates or restrains a persons freedom of movement (a) A reasonable person under circumstances would believe he is not free to leave (iii) through means intentionally applied (b) CA v. Hodari D. (1991)PO patrolling in high crime area, saw PO and ran away, tossed an object (crack) before being tackled (i) argues show of authority (PO chase) is enough for a seizure (a) Therefore he was seized before he threw away the evidence (ii) SCAn arrest quintessential seizure requires grasping or application of physical force w/ lawful authority, whether or not successful in subduing the arrestee (a) Drug abandoned while running away was not fruit of the seizure (c) Problems page 383 (i) PO flash lights and car pulls into drivers house driveway. PO talks to him, and he flees (d) Brendlin v. CA (2007)added through means intentionally applied to seizure def. reasonable suspicion (1) Anonymous tips (a) Can arise from information that is different in quantity and less reliable than that required to show probable cause (b) Uses the Gates Totality of the Circumstances test (i) Corroboration informant right about some things, probably write about other facts, including alleged criminal activity (ii) Predictive vs Descriptive tips (a) Not enough that an anonymous tip verify really observable information (b) Must accurately predict future movements (c) Alabama v. White anonymous tip about future actions of a car carrying cocaine (i) PO founded and followed car, stopped before they reached their destination. (a) Search car and found a suitcase contained marijuana (ii) Holding close case but sufficient corroboration that the anonymous tip was honest and well-informed, justified reasonable suspicion for the stop- predicted FUTURE activity

5.

Contrasted with JL- said there would be a black kid in a plaid shirt near bus stop. No future activity predicted, kid in plaid shirt at stop coudve been there already n observed by anyone. (2) Other factors (a) Presence in high crime area alone cannot justify reasonable suspicion is relevant (b) Refusal to cooperate with police, without more, does not justify reasonable suspicion (c) Unprovoked flight is more than merely refusing to cooperate, but by itself does not constitute reasonable suspicion is a factor to be taken into account (3) Unprovoked flight + presence in a high crime area (a) The determination of reasonable suspicion must be based on commonsense judgment and inferences about human behavior (b) The existence of innocent explanations does NOT erase reasonable suspicion (i) if there is an ambiguity about what is occurring, it will be resolved when the police stop the individual for further investigation. (c) IL v. WardlowPO in an area known drug trafficking, saw PO and ran. PO chased and performed a Terry Frisk found a gun in a paper bag (i) SC found reasonable suspiciondue to combination k) Extending the Terry doctrine (1) Protective sweeps (a) Limited search of area incident to arrest if PO has reasonable suspicion danger exists (b) The scope of a protective sweep may (i) Narrowly confined to a cursory inspection of those spaces where a person may hide (a) Expands Chimel wingspan limitation for search incident to arrest (b) Closets and other spaces immediately adjoining the place of arrest (ii) may last only as long as is required to resolve the suspicion of danger (a) no longer than it takes to complete the arrest and depart the premises. (c) MD. V. Buie (1990)PO had warrant to arrest , enter his house and arrest him in basement. PO returns to basement To look for other people & finds red jogging suit (i) Original search is justifieduntil Buie is arrested, can search whole house (ii) Return trip to basement is justified if reasonable suspicion danger exists (someone else there) Or can find weapons --- protective sweep can look wherever someone can be hiding-PEOPLE size (iii) SC remanded to determine if return trip was reasonable (2) Taking luggage (a) US v. PlacePO get tip about drugs, refused search, PO confiscate luggage for 90 min to do dog sniffgot PC for warrant, but it was late on Fri so warrant came on Mon (i) Sc held the seizure was not reasonable b/c they took too long (a) Person has possessory interest in luggage and liberty to continue on journey (3) Car frisks (a) Officers who make lawful car stops and have reasonable suspicion that there may be a weapon in the vehicle, police may conduct a limited weapons search (Terry frisk) of the entire passenger compartment (b) Michigan v. LongPO stop a car, gets out and is unresponsive (under the influence), PO .see a knife, use flashlight to look in car (plain view doctrine) (i) Permit a search on the car based on specific and articulable facts. (ii) Chance there are more weaponsok to search reasonableness in a special needs context a) Balancing Approach: The Standard for Suspicionless Administrative Searches (1) When special needsconcerns other than crime detectionare alleged in justification of a 4th Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties (a) can either lessen or even eliminate the need for individual or particularized suspicion (2) Govt. Special Need (a) Does the government have a special need, beyond that of normal law enforcement, that is important enough (does not need to be compelling) to justify the particular search at hand? (3) Furthers the Special Need (a) Does the program further the governments special need? Note, the least restrictive alternative is

not necessary. (4) Nature of the Privacy Interest (a) How high/low of a privacy interest does the target of a particular program have? (5) Intrusion upon the Privacy Interest (a) How intrusive is the proposed government program? b) school searches (1) school setting requires some easing of restrictions on searches by public authorities (2) Court balances the [students] reduced privacy interest against the schools need to keep order (in light of increasing crime). (a) School searches must be reasonable. (b) Reasonable at Inception: (i) Probable cause is not necessary. (ii) a search of a student by school official will be justified when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or the rules of the school. (c) Reasonable in Scope: (i) the measures adopted are reasonably related to the objective of the search and (ii) not excessively intrusive in light of the age and sex of the student and (iii) the nature of the infraction. (3) In re TLO (a) VP thought a student was smoking cigarettes. She refused to allow search. VP took purse and found weed (b) Court held that 4th Amendment only applies when government acts NOT private actors, that school officials were government agents. (c) HOWEVER, NO warrant necessary for search of student and no probable cause required for search in a school setting. School officers need only show reasonable suspicion c) Border Searches (1) Fixed boarder crossings (a) A person may be stopped and her belongings searched without a warrant or individualized suspicion of wrongdoing (i) pursuant to the long standing right of the sovereign to protect itself from the entry of persons and things dangerous to the nation. (2) For roving border patrols, (a) SC has determined that the agents need reasonable suspicion of criminal activity to detain the car occupants briefly. (b) US v. RamseySC held banned ROVING border patrol it would be terribly frightening. d) Checkpoints (1) Checkpoints are permissible when NOT solely for criminal prosecution, are random and seek to promote public safety of roads (2) Sobriety checkpoint (3) Narcotics checkpoint (a) City of Indianapolis v. Edmondvehicle checkpoint looking for narcotics differs from Stiz b/c primary purpose was to detect ordinary criminal wrongdoing (4) Information checkpoint (a) IL v. Lidster (2004) stop to get info about a fatal hit-and-run ok b/c not to determine whether occupant committed a crime, but rather to ask for help about a crime committed by someone else V. Remedies for Fourth Amendment Violations A. Standing 1. Alderman v. US (1969)wiretap of a phone incriminated 3rd party in conspiracy, 3rd party couldnt argue against 4th a search b/c it wasnt their phone that was tapped a) Suppression of the product of a 4th A violation can only be successfully urged by those whose constitutional rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. b) comes down to whether the challenging individual had a legitimate expectation of privacy in what was searched 2. US v PaynerFBI arranges for an informant to take docs out of Ws briefcase and copy them. Payner is

implicated by evidence, but he cant challenge illegal search b/c not his briefcase Expectation of privacy test a) Rakas v. ILPO pulled over car and found sawed-off rifle and shells, arrested all 4 occupants (1) 3 passengers claimed they didnt own the items but tried to challenge the legality of the search (2) SC moved away from standing and based on whether search/seizure violated 4th A (a) Did they have a legitimate expectation of privacy that was violated by search/seizure (b) Did PO properly observe applicable cause and warrant requirements b) Simmons v. USa that testifies in support of a motion to suppress evidence on 4th A grounds (admits the briefcase of drugs is his), his testimony cant be used again st him at trial to prove guilt c) Minnesota v. Olson: In general, an overnight guest has a legitimate expectation of privacy in his hosts home, an expectation that entitles the guest to object to a warrantless entry to arrest him. (1) Overnight guests are entitled despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household d) MN v. CarterPO see 2 guys packing coke through widow (1) s didnt have a legitament expectation of privacy b/c they were at the apartment for the sole purpose of packaging cocaine in exchange for some of the product (2) Three Factors Considered: (a) The individuals were at the residence for a brief period of time (2 hours); (b) there was no prior connection to the occupant or the apartment; (c) the only reason the individuals were at the apartment was to transact business e) Rawlings v. Kentucky: The police discovered a considerable amount of illegal narcotics in a purse belonging to the defendants acquaintance. (1) contended that because he claimed ownership of the drugs found in the purse, he should be entitled to challenge the search regardless of his expectation of privacy. (2) SC held that had no legitimate expectation of privacy in the purse (a) he had known the owner of the purse for only a few days, (b) had never before sought or received access to the purse, and (c) did not have any right to exclude others from the purse (3) RULE: Ownership of the property seized as a result of a search does not by itself entitled an individual to challenge the search. (a) To contest the legality of the search, the individual must demonstrate that his or her legitimate expectation of privacy was violated by it. B. Exclusionary rule 1. general a) Provide a remedy that prevents the government from introducing [relevant and reliable] evidence at trial when that evidence is secured in violation of an individuals constitutional rights. b) DETERRENCE (1) Relevant and reliable evidence is excluded from a current case not to redress the victims injury, but to deter future violations of constitutional rights by police. (2) The rule removes any and all possible motivation for depriving individuals of their rights. 2. Grand jury proceedings a) US v. Calandraexclusionary rule does not apply to grand jury proceedings b/c balance between historic role of grand jury and potential benefits of the rule as applied in context (1) Grand jury does not determine ultimate guilt or innocenceisnt hampered by restrictions applicable at trial (2) Allowing to invoke exclusionary rule would interfere w/ swift and effective discharge of grand jury duties 3. exceptions to the exclusionary rule a) Evidence may be introduced during a criminal trial even though it was obtained by an unreasonable search or seizure (1) Impeachment of exception (a) Prosecutor may impeach s testimony with previously excluded evidence (i) Applies to direct examination (Walder) and cross examination (Havens) (ii) Walder tried to take advantage of the courts exclusion of narcotics found in his possession by testifying in direct examination that he has never possessed narcotics (b) does not apply when doesnt testify and prosecutor attempts to impeach s witness 3.

4.

b) Good faith exception (1) The exclusionary rule does not apply when a police officer acts reasonably relies, in good faith, on the validity of a warrant that later turns out to be invalid (a) Objective standard (b) Violations of 4th Amendment do not automatically exclude evidence (i) Exclusion is a last resort, not first impulse (c) Mistakes by Judge or magistrate (i) US v. Leon (1984)PO acted in reasonable reliance on search warrant issued by detached & neutral magistrate (facially valid) later found insufficient to establish PC (a) Evidence seized was not excluded b/c would not serve remedial objective deterrent effect on issuing judge (b) Difference is accorded to the magistrates finding of probable cause (i) Cannot act as a rubberstamp for the police (ii) Suppression is appropriate remedy if the magistrate or judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth (Franks v. DE) (iii) Mass v. Sheppardgood faith exception broadened to cover the case of a warrant that erroneously described the items to be seized (a) PO could not find the proper warrant form, took to magistrate he said he would fix the problems, however he did not change the substantive portion of the warrant (b) PO acted in objective good faith of the issued one (d) Mistakes by the police officer (i) Groh v. Ramirez Federal agents created affidavit for a warrant to search Ramirezs ranch for weapons, explosives and records, however warrant form was filled in incorrectly and failed to specify the items to be seized (a) SC held it was plainly invalid b/c of particularity requirement (ii) No PC (2) good faith exception and warrantless searches (a) Arizona v. Evans (1995)warrantless search of car incident to improper arrest, evidence was not suppressed (i) arrested in a routine traffic stop when computer indicated there was an outstanding warrant for his arrest.computer information was wrong (clerical error) (ii) Warrantless search of vehicle turned up marijuana SC found it admissible (iii) Applied Calandra balancing test (a) Exclusionary rule meant to deter police conduct, not mistakes by court EE Fruit of the Poisonous Tree doctrine a) In general (1) Exclusionary rule prohibits introduction of derivative evidence that is acquired as an indirect result of the unlawful search (2) Analysisidentify: (a) the tree (the constitutional violation) (b) the fruit (evidence the government seeks to introduce) (c) determine whether (b) comes from (a) (d) if the fruit did come from a poisonous tree, look for facts that justify the conclusion that the poison from the fruit has dissipated (the attenuation doctrine) (3) Silverthorne Lumber Company v. US (1920) DOJ went into office without any authority to seize papers, copied them and tried to use knowledge gained from illegal search (a) Knowledge gained by the governments own wrong cannot be used by it b) Attenuation exception (1) At some point the evidence becomes so far removed attenuated from the unconstitutional conduct that the exclusionary rule should not apply (2) Derivative evidence obtained by means sufficiently removed from initial illegality is admissible. (3) Court should examine the following factors: (Totality of circumstances type test) (a) Period of time between illegality and acquisition of secondary evidence (b) Existence or absence of intervening causes the seizure of the fruit (c) Purpose and flagrancy of the official misconduct

(d) Presence or absence of an act of free will by (4) Wong Sun v. USlong string of drug dealers (a) Hom Way was arrested for possession of heroinnamed Toy as source (b) PO went and arrested Toy at his house, no drugs foundimplicated Yee (i) NO PC to arrest or search Toys house, Ways statement was uncorroborated (ii) Toys statement in his home is excludable b/c immediate result of unlawful arrest (c) PO went to Yees house and found drugsYee said he got it from Toy and Wong Sun (i) Heroin is inadmissible as to Toy, came as a direct result of 4th A violation (ii) Court held it was admissible against Wong Sunhe cannot vicariously assert Toys rights (d) PO arrested Wong Sun at home but found no drugs (i) Wong Sun voluntarily came back to station later and made statementadmissible b/c far enough removed (e) Toy, Yee, and Wong Sun were charged w/possession c) independent source exception (1) Applies to evidence initially discovered during, or as a consequence of, an unlawful search but later obtained independently from activities untainted by the initial illegality (2) Murray v. US ( 1988) PO stopped a car, found pot. searched warehouse car had just left w/o warrant and found bales of pot, left and got a search warrant evidence is admissible (a) PC existed before the police entered the warehouse (b) So long as a later, lawful search is genuinely independent of an earlier, tainted search, the independent source doctrine will apply. (c) The ultimate question is whether the search pursuant to the warrant (or otherwise lawful entry) was in fact a genuinely independent source of the information and tangible evidence at issue. d) inevitable discovery exception (1) exclusionary rule doesnt apply to the government would have found the evidence anyway (2) same preponderance of the evidence burden of proof (3) Nix v. Williamspolice deliberately elicited an incriminating statement in absence of lawyer that lead to discovery of victims body. An ongoing search would have found the body (a) If the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of trial proceedings. (4) knock and announce warrants (a) Knock and announce rule does not protect ones interest in preventing the government from seeing or taking evidence described in a valid search warrant (b) Hudson v. Michigan police waited 5 seconds after not to go in, therefore violated not to announce requirement. Evidence found was admissiblewould have found it anyway 5. where do we go from here? a) Herring v. US (2008) like LEONPO arrested based on an outstanding warrant from a different county that proved erroneous. Drugs and handgun found in car admitted into evidence. (1) Here the police personnel were at fault, not a court clerk (2) There was no willful or bad faith conduct on the part of the law enforcement (3) Negligent conduct will not suffice- they think theyre doing right thing so u cant deter them (4) Principles that constrain application of the exclusionary rule (a) Exclusionary rule is not an individual right and applies only where it results in appreciable deterrence (i) Varies with culpability of law enforcement conduct (b) Benefits of the deterrence must outweigh the costs (letting guilty go free) b) Exclusionary rule does not apply if the police acted in objectively reasonable reliance on the subsequently invalidated a search warrant c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it- they mustve been trying to trick (1) Pertinent analysis of deterrence and culpability is objective VI. Confessions: the voluntariness requirement A. Test for Voluntary/Coerced Confession 1. Totality of circumstances

a) Was the confession obtained by threat or actual use of violence by police? b) Psychological techniques used to render confession involuntary? c) Promises to suspect of leniency? d) Deception may render confession involuntary. 2. BUT, MERE REPRESENTATIONS TO THE SUSPECT THAT COOPERATION IS THE BEST COURSE OF ACTION DO NOT RENDER A CONFESSION INVOLUNTARY B. Torture and confessions C. Police interrogation without torture 1. Constitutional Issue a) State law requires confessions to be voluntary b/c aim is to exclude false evidence b) Did application of state rule deprive prisoners life or liberty without due process of law? (1) Aim is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of the evidence whether true or false (2) Applied to a criminal trial (a) Failure to observe the fundamental fairness essential to the very concept of justice (b) To find a denial of due process (i) The absence of the fairness fatally infected the trial (ii) The acts complained of must be of such quality as necessarily prevent a fair trial 2. Lisenba v. California (1941)acase where killed wife for life insurance policy a) Claimed he wouldnt have said anything if it wasnt for his accomplace b) Three possible tests to decide when to suppress confessions (1) Was the inducement of a nature calculated under the circumstances to induct a confession irrespective of the truth or falsity? (2) Was there a threat or a promise, a fear or a hope? (3) Was the confession voluntary? 3. Spano v. NY (1959) shot and killed a man in retaliation for beating him up, confessed after confronted by friend who was a cop a) SC moved away from the amorphous voluntariness standard for determining whether police violated due process standards when eliciting confessions and towards whether the accused had access to legal counsel b) Court found that Spanos will was overborne by official pressure, fatigue, and sympathy falsely aroused. 4. Due process voluntariness test (after Spano) a) Individual Characteristics of accused (1) Age (2) Mental condition (drugs) (3) Level of experience w/ interrogations b) Police conduct (1) Length/nature of interrogation (a) physical force or threats of physical force; (b) non-physical threats, i.e., that the police will take a mans wife into custody if he does not confess; (c) promises of leniency easy treatment if an individual confesses will be a factor in the Due Process inquiry, but is never enough by itself. (2) Whether was advised of their rights 5. Chavez v. Martinez (2003after Miranda) was interrogated by PO Chavez while being treated for gunshot wounds to face (never given Miranda warnings, charged w/crime) a) Martinez brought a 1983 claim for violation of 5th A right of self incrimination b) SC ruled that due process is only violated if police methods shock the conscience (1) Trying to set the bar high so there arent too many lawsuits against police Also there was never an action brought against Martinez. No legal action so he couldnt have been forced to testify against himself. 6. Colorado v. Connellyinsane guy confesses to a murder. a) He suffers from chronic schizophrenia and he heard the voice of God to either commit suicide or confess to the killing. He chose to confess to the commission of the crime. It turns out they could NOT find the body. b) .Majority holds confession was admissible b/c no state action therefore no due process violation (1) although Connelly suffered from a disease, the admission was not a product of overreaching by the police(There must be coercion by the police) (2) no constitutional problem, state law issue whether insane statement admissible

c) Dissent holds that confession comes in as involuntary confession VII. Police interrogation: the self-incrimination clause A. Self-incrimination foundational principles 1. The Fifth Amendment: a) No personshall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. 2. Chavez v. Martinez (again) claimed 5th A violated b/c statements were self incriminatory a) SC found no violation (1) his statements were never admitted as testimony against him in a criminal case. (2) Nor was he ever placed under oath and exposed to "the cruel trilemma of self-accusation, perjury or contempt.' b) No violation unless the government seeks to introduce the statement at a criminal trial 3. 5th A only applies to evidence testimonial or communicative in nature a) Can drawn blood, try on cloths, handwriting sample B. The road to Miranda 1. Bram v. US (1897) murder on a ship, confronted w/statement he was killer a) Bram stated Brown couldnt have seen him from the wheelhouse b) SC held the confession was coerced (1) Confession may NOT be extracted from any sorts of threats or violence of direct promises however slight or any improper influences 2. Escobedo v. Illinois (1964) asks to speak w/atty, police dont let him & dont tell right to remain silent, he confesses a) Ct relies on 6th A right to counselonce focus of investigation had zeroed in on one individual, his right to counsel had been attached 3. Collapse of the voluntariness test a) 5 objectives (1) To deter the police from engaging in conduct that may produce an unreliable confessions (2) To deter the POs from engaging in conduct so offensive to the minimum standards of a civilized society that it shocks the conscience of the Court (3) To deter the police from engaging in less than shocking misconduct (4) To deter the police from using the techniques of a inquisitorial system and to encourage them to use the techniques of an accusatorial system and (5) To deter the police from overbearing the suspects will C. Miranda spawns a new law of confessions 1. requirements a) custodial interrogation (1) must be in custody and (a) Freedom of movement has been restrained (b) Miranda warnings not required when suspected on a wire hes speaking to law enforcement officer and gives a voluntary statement (undercover agent) (2) being interrogated b) Miranda warnings required, but Miranda rights can be waived c) fruits of a Miranda violation (1) If Miranda warnings are not given when they should be, statements are inadmissible (2) If statements are given a valid waiver is not secured, statements are admissible d) Exceptions to the Miranda rule (1) Situations in which warnings are not required (2) Remedy for violation does not include total exclusion of the original statement 2. The Miranda Rights a) He has the right to remain silent. (1) In order to exercise this right, an individual must be aware that he has it. (2) If a suspect indicates that he does not want to talk, the questioning must stop. b) Anything he says can and will be used against him. (1) Knowing that he has the right is not enough to inform the suspect what it protects and what waiving it will cause. c) The right to the presence of an attorney at the interrogation.

(1) Suspect need to know that he can have his attorney present right then and thereeven preliminary advice given to the accused by his own lawyer can be swiftly overcome by secret interrogation processes. d) If a suspect cannot afford a lawyer, one will be appointed to represent him 3. Miranda rights dont need to be verbatim to holding a) Florida v. Powell (2010)warnings that effectively convey the Miranda rights are acceptable 4. Miranda a) If invokes the right to silence questioning stops b) If request an attorney, interrogation must cease and wait for an attorney c) Waiver of Miranda rights must be expressed (1) Silence after warnings are given is not a waiver d) General on scene questioning is not custodial e) Volunteered statements are admissible (no Miranda warnings needed) 5. Miranda v. Arizona (1966)SC rules police interrogation is not admissible if is not informed of right to remain silent (constitutional right against self-incrimination) a) Due to coercive nature of custodial interrogation by police b) Appropriate safeguards at the outset of the interrogation will ensure that statements were truly the product of free choice c) 5th A privilege is fundamental and exists outside of criminal court proceedings d) Miranda is a prophylactic device to protect against violations of the 5th A, not a protection of 5th A 6. Illinois v. Perkins (1990) undercover agent offered protection to while in prison if he talked about a murder was suspected of committing; SC held confession was voluntary and admissible a) Miranda was meant to preserve privilege during incommunicado interrogation of individuals in a police dominated atmosphere b) Essential ingredients of police dominated atmosphere and compulsions are not present when incarcerated person speaks freely to someone he believes to be a fellow inmate (1) Coercion is determined from the perspective of the suspect (2) Confessions are still in port to law enforcementstatement freely and voluntarily given without any compelling influence is admissible evidence c) SC stated may be able to exclude the statement under (1) 6th A right to counsel if he is inundated with judicial proceedings have started against him (2) 14th A due process clause for an voluntariness will over born D. Stormy seas for Maranda 1. Miranda exceptionscentral concerns of Miranda not implicated and other criminal objectives best served a) Statements obtained in violation of the rule can be used of impeachment (Harris) b) To protect public safety concerns (Quarles) c) Physical evidence obtained in reliance on statements taken in violation of the rule is admissible d) Elstad confessions 2. political reaction to Miranda a) 18 USC 3501 Omnibus Crime Control and Safe Streets Act 1968 intended to overrule Miranda 3. Deconstitutionalization of Miranda a) Confession taken in violation of Miranda could be used to impeach s testimony if he testified in his defense at trial (Harris v. New York 1971) (1) If statement was voluntarily given b) s compelled statements may not be put to any testimonial use against him in a criminal trial (1) SC drew a distinction between a Miranda violation and a violation of the constitutional privilege against compulsory self-incrimination (New Jersey v. Portash 1979) c) Michigan v. Tucker (1974) police interrogated before Miranda was decided, failure to provide warnings was in good faith. Evidence offered at trial was the name of a witness substantiated his alibi (1) SC could have ruled the attenuation-of-taint principle would allow testimony discovered through a constitutional violation (2) Instead SC ruled a violation of Miranda is not a violation of the underlying 5th A itself (a) Miranda warnings are not rights protected by Constitution but measures to ensure 5th A right against compulsory self-incrimination is protected 4. 5th A prohibits the use by the prosecution in the case in chief only of compelled testimony

5.

6.

7.

8. 9.

a) Failure to administer Miranda warnings creates a presumption of compulsion b) unwarned statements that are voluntary within the meaning of the 5th A must be excluded from evidence (1) Mirandas provides a remedy even when suffered no identifiable constitutional harm public safety exception to Miranda warnings requirement a) The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting 5th A privilege against self-incrimination (1) Questions asked reasonably prompted by concern for public safety do not require Miranda warnings b) New York v. Quarles (1984) PO arrested in a grocery store, asked him where he hid his handgun (1) stated the gun is over there (2) Ct held statement not compelled by police conduct which overcame his will to resist (3) PO can distinguish between questions necessary to secure public safety and questions designed solely to elicit testimonial evidence is suspect fruits of a Miranda violation a) violation of Miranda will require suppression of the initial unwarned statement; (1) if Miranda warnings are thereafter provided, fruit of the unwarned statement will not be suppressed (a) including witnesses, articles of evidence, and the accuseds own voluntary testimony,. (2) Only if the initial unwarned confession was obtained by deliberate coercion and improper tactics will a subsequent Mirandization and voluntary waiver not dissipate the taint for a subsequent confession (3) A violation of a prophylactic rule does not trigger the fruit of the poisonous tree doctrine. (a) When the alleged fruit of a non-coercive Miranda violation is the accuseds own voluntary testimony, the unwarned admission must be suppressed but the admissibility of any subsequent statement will turn on whether it was voluntarily and knowingly made. (b) Wong Sun only requires that the fruits of a constitutional violation be suppressed. (i) If no actual infringement on the suspects constitutional rights, the doctrine will not apply b) confessions (1) Oregon v. Elstad (1985) teenager admitted to burglary before PO gave Miranda warnings, waived them and then confessed again after receiving Miranda warnings (a) Initial confession was in his living room and there was no air of police coercion (b) argued that subsequent confession must be excluded as fruit of the poisonous tree assumes the existence of a constitutional violation (c) cat out of the bag argument has nothing to do w/constitution c) Physical fruits (1) US v. Patane (2004) no exclusion of physical evidence for technical Miranda violations PO started Miranda warnings, stopped him and told where gun was located (a) SC said gun is admissible (2 theories) (i) Failing to comply w/Miranda does not violate constitution (a) Violation only occurs when statements taken w/o warnings are introduced into evidence (ii) Cost v benefit balancing (a) Admission of nontestimonial fruits does not run the risk of admitting s coerced incriminating statements against himself (b) Deterrence rational for law enforcement and suspects rights doesnt outweigh probative value of physical evidence Miranda Penalty analysis a) exercise of Miranda rights should not be penalized (1) Garrity v. New JerseyPO was questioned and given right to remain silent, but said he would be fired if he didnt answer (a) Ct said his statement was essentially compelled b) Cross examination about silence is unconstitutional (1) Miranda warnings implicitly promise that silence will carry no problem (2) Doyle v. Ohiostate tried to use s silence after arrest to impeach exculpatory statement at trial Constitutionality of Miranda a) Dickerson v. US (2000)SC held 3501 could not overrule Miranda Miranda was a constitutional case, 18 usc 3501 was unconstitutional Question first technique a) A sequential interrogation is not permissible

(1) unwarned interrogationconfession, Miranda rights read, reissue confession b) 3-step, 5 factor Seibert test (intentional withholding of Miranda warnings followed by mirandized recap must be excluded) (1) Did law enforcement personnel deliberately use 2-round interrogation to sidestep Miranda (2) Is the situation more like Elstad or Seibert (a) Completeness and detail of the questions and answers in the first round of interrogation; (b) Overlapping content of the two statements given; (c) Timing and setting of the first and second interviews; (d) Continuity of police personnel; and (e) Degree to which the interrogators questions treated the second round as continuous with the first. (3) If more like Seibert, did interrogator take any curative measures (advise 1st statement is invalid) c) Missouri v. Seibert (2004)PO purposely refrained from giving Miranda warnings after Seiberts initial arrest. They questioned her for about 40 minutes until they obtained a confession; thereafter, the Miranda warnings were read and she signed a waiver of rights and gave a statement. (1) Both statements were given at station to same PO (2) 2nd statement began where 1st left off (3) SC held: When Miranda warnings are deliberately administered in the middle of a continued and coordinated interrogation, they are not effective and any subsequent statements obtained will be viewed as part of the initial, unwarned confession. (a) Looks at effectiveness of warningsgives 5 factors (4) Kennedy concurrence says 5 steps are too broad, (a) look to Elstad, and deliberate police behavior (subjective intent)not normal! (b) sequential questioning is invalid unless curative measures taken in between E. Miranda custody 1. General a) Location is not determinative of custody b) In custody (1) a formal arrest or (2) an individual is otherwise deprived of his freedom of action in any significant way. c) inquiry is whether reasonable person in suspects position would have understood that he was in custody (1) The restraint must exert pressures that significantly impair a suspects free exercise of his privilege against self-incrimination, comparable to a lengthy interrogation at the police station 2. Oregon v. Mathiason: When a suspect comes voluntarily to the police station in response to an invitation by the police, he will not necessarily be in custody. voluntary appearance not custody a) Mathiason (a parolee) was told he was not under arrest before questioning b) The Court held that the questioning was not custodial (1) no indication it took place in a context where the suspects freedom to depart was restricted in any way (a) he voluntarily came to the police station, (b) was informed that he was not under arrest, and (c) was permitted to leave at the end of the interview c) from s position, he was on parole, so maybe that influenced his decision 3. Miranda is not limited to felonies a) A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested. b) automobile arrests (1) Persons temporarily detained after ordinary traffic stop are not in custody for purposes of Miranda (a) features of traffic stops to mitigate danger of coercion (i) Traffic stops are brief and take place in publicanalogous to Terry stop (ii) Person does not feel that he is completely at the mercy of policetake place in public (b) Statements made are admissible! (2) Berkemer v. McCartyfield sobriety case. PO decided to charge with traffic violation, ask some questions and confessed to using drugs & drinking, placed under arrest. Statement admissible (a) Temporarily detained after ordinary traffic stop is not in custody F. Miranda interrogation

interrogation requires person in custody is subjected to express questioning or its equivalent a) Any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 2. Rhode Island v. Innis was arrested for robbing one cab driver and possibly murdering another. Upon arrest, he received his Miranda rights and requested a lawyer. On the way to the station, the police officers in the car with him had a conversation between themselves about how it would be unfortunate if a handicapped child from the nearby school found the discarded shotgun. Inniss conscience apparently kicked in and he told the officers to turn around so he could show them where the weapon was hidden. a) SC held this was not an interrogationMiranda doesnt apply. Interrogation is express questioning or functional equivalent 3. Routine background questioning are not considered with the Miranda protections a) regarding the suspects name, address, and related matters b) b/c not investigatory, do not involve psychological intimidation, and not likely to elicit incriminating response G. Waiver and invocation of the Miranda rights 1. Waiver a) requirement is full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it b) elements of a valid waiver (1) voluntary (a) actions by a person whose will is not over born by the state (2) knowing and intelligent relinquishment of Miranda rights (a) depends upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused (b) elevate the standard for voluntariness and places a heavy burden on the prosecution (c) preponderance of the evidence presumed that a defendant did not waive his rights c) Express Waiver: (1) An express statement (either orally or in writing) that the individual is willing to make a statement and does not wish to speak with an attorney, followed closely by an actual statement, could constitute a waiver. d) Implied Waiver: (1) if the suspects words and actions implicitly constitute a decision to forego his rights. (2) mere silence is not enough, a defendants silence, coupled with an understanding of his rights and a course of conduct indicating waiver may suffice. (3) Courts must examine the totality of the circumstances. (4) North Carolina v. Butler (1979)express waiver is not necessary for a valid waiver under Miranda (a) was administered his Miranda warnings and responded that he understood his rights. He refused to sign the written waiver form, but agreed to speak about the robbery being investigated and eventually admitted participation in it. (b) When his statement was offered against him at trial, Butler claimed it could not be used in the absence of an explicit waiver. (c) HOLDING: An express waiver is not necessary for a valid waiver under Miranda. (i) waiver must be determined on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. e) waiver of Miranda is to interrogation in general and not to interrogation about a particular crime f) Information from Police (1) Police do not need to inform the suspect of all information that may be useful in deciding whether to waive (2) Moran v. Burbine: was in police custody and attorney told police she would act as s counsel in the event the police intended to question him. She received assurances from the police that the defendant would not be questioned further until the next day, but later that evening the police interrogated the defendant and he made incriminating statements. (a) Although the police did give him his Miranda warnings, they did not inform of the attorneys phone call or say anything that would indicate an attorney was seeking to represent him. (b) HOLDING: s waiver was valid, because interactions between police officers and attorneys that are unknown to a suspect have no impact on the validity of that suspects waiver.

1.

2.

(i) The police are not required to supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. (ii) Once it is determined that a suspects decision not to rely on his rights was un-coerced, that he knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. (c) VOLUNTARY?whether the waiver was a product of a free and deliberate choice rather than intimidation coercion or deception. (i) any evidence that the accused was threatened, tricked, or cajoled into waiver will of course show that the defendant did not voluntarily waive his privilege Invocation of Miranda Protections a) Invoking the right to silence (1) When a suspect invokes the right to silence, all questioning must cease (2) However, does not permanently terminate questioning (a) Right to cut off questioning counteracts the coercive pressures of the custodial setting (b) Statements obtained after the person decided to remain silent may be admissible under Miranda (i) If s right to cut off questioning was scrupulously honored (3) Michigan v. Mosley (1975) arrested for robbery and given Miranda rights, stated he wanted to remain silent and questioning ceased. Two hours later another detective administered Miranda rights and questioned him about a murder he signed a waiver and confessed (a) Confession was admissible (b) s right to cut-off questioning (remain silent) was scrupulously honored b/c officers immediately ceased questioning when he exercise the right to remain silent (c) Court found it relevant that: (i) Second set of questions are in a separate location from the first interrogation (ii) Related to a different crime (iii) To place two hours after the first question in (iv) There were different officers in each interrogation (v) He received veranda warnings both times (vi) He gave an express waiver at the second interrogation b) Invoking the right to counsel (1) When a suspect requests counsel, the interrogation must cease until an attorney is present (a) unless the accused initiates further communication exchanges or conversations. (2) After requesting counsel, the suspects responses to further police initiated interrogation will not establish waiver, even if the suspect received another set of Miranda warnings and executed a voluntary waiver (3) Edwards v. Arizona (1981) was arrested for robbery and murder, given his Miranda rights and voluntarily waived them. During questioning stated I want an attorney before making a deal. Questioning stopped and he was taken to jail. Next day to new officers questioned who then waived his rights and confessed (a) Confession was not admissible (i) invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he was advised of his rights (4) initiation of further communication and waiver (a) Occurs only when an inquiry from the suspect can be fairly said to represent the desire to open up a more generalized discussion relating directly or indirectly to the investigation (b) what do you think will happen to me now? (5) Unrelated interrogations (a) Once a suspect has unambiguously invoked the right to counsel, it applies to all crimes (b) Right to counsel is not offense-specific like Miranda (Arizona v. Robinson) (6) Counsel must be present during interrogation (a) When suspect unambiguously invokes right to counsel, interrogation must cease and law enforcement may not reinitiate interrogation without counsel present, whether or not he has consulted with his attorney (b) Minnick v. Mississippi (1990) told FBI agents to come back Monday when his lawyer was

present. talked with his lawyer on several occasions. Different PO arrived, advised him of Miranda rights, he declined to sign a waiver, but answered questions during an interview (i) The statements were inadmissible (ii) Once a suspect in both his right to counsel, the police may not reinitiate interrogation in the absence of counsel (7) Unambiguous invocation requirement (a) Questioning only has to cease in the presence of an unambiguous request for counsel (b) Davis v. US stated maybe I should talk to a lawyer but when asked to clarify, he stated he didnt want one and continued to answer questions. Later stated he wanted a lawyer before entering anything else at this point questioning stopped. (i) A suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. (ii) If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. VIII. police interrogation: The Sixth Amendment Right to Counsel A. MASSIAH Doctrine: 6th Amendment Right to Counsel at a Post-Indictment Interrogation 1. once an adversary proceeding is commenced against an individual, he has a right to legal representation when the government interrogates a) s statements cannot be used against him as evidence at trial if his attorney was not present b) during any direct or surreptitious attempts by government to deliberately elicit incriminating statements 2. when the judicial proceedings begin? a) 6th A Right to counsel attaches (Rothgery v. Gillespie County) (1) when a formal charge has been filed and (2) the period before a judicial officer who has the power to restrain his liberty 3. Massiah v. U.S. (1964) Massiah and Colson were indicted for narcotics violations. Massiah retained a lawyer, pled not guilty, and was released on bail. Colson made a deal to work with the feds and wore a wire during an incriminating conversation with Massiah. The statement was used at trial and Massiah was convicted. a) There is no 5th Amendment violation because the coercive elements are lacking. b) A Miranda argument would not stand because this was not a custodial interrogation. c) There is no 4th Amendment argument because the subjective expectation of privacy was lacking Massiah was in a vehicle, exposed to the public, and assumed the risk by speaking to a third party. d) HOLDING: The 6th Amendment right to counsel is violated when there is used against a defendant at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel, even if he is not coerced or under police domination. (1) The 6th Amendment right is perhaps the most important in the time between arraignment and trial when counsel is needed most (Powel v. Alabama) (2) RULE: Any secret interrogation of a defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime. 4. Brewer v. Williams (1977)former mental patient was suspect in a child murder in Des Moines; he surrendered to police in Davenport following the issuance of a warrant for his arrest. had a lawyer in both cities who made agreements for police not to question him. On the drive back to Des Moines he was given the Christian burial speech and subsequently led the officers to the childs body. a) SC held that a violation of Massiah occurred b/c this was deliberate elicitation where police intentionally and purposely elicited incriminating statement in the absence of counsel. b) 6th and 14th A entitle to the help of a lawyer at the time that judicial proceedings are initiated against him (1) whether by way of formal charge, preliminary hearing, indictment information or arraignment (2) an arrest is NOT enough 5. Messiah fruit a) statement Williams made leading to body was inadmissible b) the body may be admissible if discovery was inevitable 6. background principle a) Maine v. Moulton (1985) and co- were indicted for theft. Co- told police Moulton had threatened to kill one of the states witnesses. Co- wore a wire to obtain incriminating statements

(1) Once an accused is represented by counsel, the state may approach only through counsel (2) Statements concerning indicted charge were inadmissible, but (3) Statements made about crimes not subject to indictment at the time were admissible 7. 6th Amendment applies when police DELIBERATELY ELICIT an incriminating statement a) Deliberate Elicitation is KNOWING where the police intentionally, knowingly, purposely elicit incriminating statements from D in counsels absence. (1) The Police CAN Merely Listen: (a) Acting as a listening post and taking no affirmative action is not deliberately eliciting. (b) must demonstrate that the police and their informant took some action, beyond merely listening, that was designed to deliberately elicit incriminating remarks (2) Kuhlman v. Wilson and 2 others robbed a taxi company and fatally shot the night dispatcher. was idd and turned himself in, denied involvement and denied knowing who the real robbers were. Police placed an informant in his cell instructed not to ask any questions, but rather to keep his ears open for the names of others. At some point, Wilsons brother came to visit him and told him how upset their family was. Wilson eventually made incriminating statements to Lee, including his actual involvement in the robbery/murder. (a) Ct held situation was not designed to deliberately elicit incriminating statements. (b) distinguished from Henry b/c informant in Henry established a relationship of trust with and was more active in obtaining information than this listening post. (i) in Henry, the police must have known that the situation would elicit incriminating remarks, for the informant would only get paid if he turned over incriminating information. (ii) Wilsons confession seemed to be prompted by his conversation with his brother (a) Wilsons remarks were spontaneous and unsolicited. b) Compare w/ MIRANDA which has a negligence standard prohibiting interrogation where police should know that questioning will reasonably elicit incriminating statements B. Messiah Waiver 1. Edwards and the 6th Amendment: a) Michigan v. Jackson (1986) was arraigned and requested counsel (overruled by Montejo) (1) the Court extended the Edwards rule to the 6th Amendment and held that police cannot continue to question a defendant formally charged with a crime who requests appointed counsel (2) police also cannot initiate communication again without counsel present; (3) a Miranda waiver does not waive 6th A right to counsel 2. requirement for a valid waiver a) was the accused made sufficiently aware of his right to have counsel present during the questioning and b) the possible consequences of a decision to forgo the aid of counsel c) Miranda warnings sufficiently appraise the accused of 6th A rights 3. Patterson v. Illinois (1988) , along with other gang members, was indicted for murder. Asked police why a certain gang member was arrested b/c he did everything. PO then gave Miranda warnings. again confessed to his part in the murder. move to suppress the confession under two theories a) 6th A right to counsel arose with indictment and PO were barred from initiating a meeting with him and (1) Court rejected b/c he did not request counselknowingly and intelligently decided to go it alone b) he did not validly waive his right to have counsel present during questioning (1) Court rejectedwaiver of 6th A right is valid when it reflects an intentional relinquishment or abandonment of a known right or privilege (a) Accused must know what he is doing so that his choices made with open eyes (2) Miranda warnings made him aware of his right to have counsel present during the questioning and aware of the consequences c) SC didnt answer whether accused must be told he was indicted before post-indictment 6th A waiver is valid 4. Montejo v. Louisiana (2009) SC overruled Jackson and held 6th A creates no broader right to counsel during interrogation than Miranda a) who request counsel following indictment must invoke Miranda right to counsel before interrogation C. Messiah and Miranda: a divergence 1. McNeil v. Wisconsin (1991) arrested for armed robbery, read Miranda rights, refuse to answer any questions, did not request an attorney. Represented by public defender at initial court appearance for armed robbery charge. was later approached by different detectives for a different crime in Caledonia. Waived Miranda rights and gave the confession.

6th A right is offense specific and does not attach until a prosecution is commenced (1) Protest the suspect at critical confrontations w/his expert adversary after judicial proceedings have begun with respect to a particular alleged crime b) Miranda-Edwards once asserts right to counsel he may not be approached for further interrogation until council has been made available to him and is present (Minnick v. Mississippi) (1) This protection is not offense specific may not be approached regarding any offense w/o counsel (2) Protect the suspects desire to deal with the police only through counsel c) Here, Questioning about Caledonia cases is admissible b/c different charges and he was not indicted yet 2. Texas v. Cobb (2001)SC further explained that offense specific a) 6th A test for same offense is the same as 5th A Double Jeopardy Clause (1) Blockburger testtwo offenses are the same when all the statutory elements of one offense are included within the statutory elements of the other D. Shedding light on Messiahs analytical core 1. Kansas v. Ventris (2009) admitted to cellmate he shot the dude. At trial blamed everything on co- a) Govt conceded 6th A violation b) SC allowed s testimony for impeachment purposes (1) Deterrent effect to keep statement out is small (cant be used as evidence of guilt), but (2) risk to society is high (perjury) IX. Eyewitness Identification (not on exam!!) A. Right to counsel 1. 6th A right to assistance of counsel includes right to have counsel present at all critical stages of prosecution a) critical stage is any informal/formal proceeding either in court or out of court where councils absence might derogate from the accuseds right to a fair trial (1) Includes identification is conducted after the initiation of formal criminal proceedings b) Lawyers role is largely one of observation; his presence serves two basic purposes: (1) Avoiding intentional or inadvertent prejudice to suspect that the lineup through improper suggestion (2) Ensuring council aware of what actually occurred at the lineup and mount a meaningful confrontation of the witness at trial 6th amendment only attaches to the indicted charges 2. US v. Wade was indicted for robbery, identified in a lineup by the two witnesses (at the same time), counsel not present a) Post-indictment is a critical stage of the prosecution, entitled to counsel b) Even if the pretrial lineup is invalid b/c absence of counsel, witness may identify suspect the trial so long as it has its own independent origin 3. In Court Identifications Subsequent to Illegal Pretrial Identification: a) When an in-court identification has been arrived at by exploitation of the illegality of the lineup identification, it must be excluded; unless the in-court identification has an independent origin. b) The prosecution must establish by clear and convincing proof that the testimony is not the fruit of the earlier identification made in the absence of the accuseds counsel. (purged of taint) c) INDEPENDENT ORIGIN factors: (1) prior opportunity to observe the alleged criminal act; (2) existence of any discrepancy between a pre-lineup description and the accuseds actual description; (3) any identification prior to the lineup of another individual; (4) the identification by picture of the accused, prior to the illegal lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged act and the illegal lineup identification; (7) facts concerning law enforcements conduct at the lineupif the lineup itself was extremely suggestive or egregious, there is a higher chance that the in-court identification lacks an independent origin. B. Due process of law a) Jackson v. DENNO Petitioner, after robbing a hotel, fatally wounded a policeman and himself received two bullet wounds. Questioned shortly after arrival at a hospital, he admitted the shooting and the robbery. Some time later, after considerable loss of blood and soon after he had been given drugs, he was interrogated and admitted firing the first shot at the policeman. Petitioner was indicted for murder, and both statements were admitted at the trial, at which petitioner's testimony differed in some important respects

from the confessions. In accord with New York practice where the voluntariness of a confession is attacked, the trial court submitted that issue, with the others, to the jury. The jury was told to disregard the confession entirely if it was found involuntary, and to determine the guilt or innocence solely from other evidence; or, if it found the confession voluntary, it was to determine its truth or reliability and weigh it accordingly. The jury found petitioner guilty of first-degree murder, the New York Court of Appeals affirmed, and this Court denied certiorari. Petitioner filed a petition for a writ of habeas corpus asserting that the New York procedure for determining voluntariness of a confession was unconstitutional and that his confession was involuntary. The District Court denied the petition and the Court of Appeals affirmed. Held: 1. Under the New York procedure, the trial judge must make a preliminary determination of the voluntariness of a confession and exclude it if in no circumstances could the confession be deemed voluntary. If the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from the undisputed facts, the judge must admit the confession and leave to the jury, under proper instructions, the determination of its voluntary character and also of its truthfulness. This procedure does not provide an adequate and reliable determination of the voluntariness of the confession, and does not adequately protect the petitioner's right not to be convicted through the use of a coerced confession, and is therefore violative of the Due Process Clause of the Fourteenth Amendment. Stein v. New York, 346 U. S. 156, overruled. Pp. 378 U. S. 376-391. Page 378 U. S. 369 (a) It is a deprivation of due process of law to base a conviction in whole or in part on a coerced confession, regardless of its truth, and even though there may be sufficient other evidence to support the conviction. P. 378 U. S. 376. (b) A defendant has a constitutional right to a fair hearing and reliable determination of the voluntariness of a confession, not influenced by its truth or falsity. Pp. 378 U. S. 376-377. (c) It is impossible to tell whether the trial jury found the confession voluntary and relied on it, or involuntary and supposedly ignored it, but for the Court to accept these alternatives is to fail to protect the rights of the accused. Pp. 378 U. S. 379-391. (d) Under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. Alternatively there is the danger that a confession found to be coerced plays some part in the jury's deliberations on guilt or innocence. Pp. 378 U. S. 386-389. 2. Petitioner is entitled to a state court hearing on the issue of the voluntariness of the confession by a body other than the one trying his guilt or innocence, but that does not necessarily entitle him to a new trial. Pp. 378 U. S. 391-396. (a) If, at an evidentiary hearing on the coercion issue, it is determined that the confession was voluntary and admissible in evidence, a new trial is unnecessary. P. 378 U. S. 394. (b) If it is determined at the hearing that the confession was involuntary, a new trial, at which the confession is excluded, is required. P. 378 U. S. 394. 309 F.2d 573, reversed and remanded. BRAITHWAITE An undercover policeman named Glover bought some drugs from a guy in an apartment. He then described the seller to his partner, D'Onofrio. Based on the description, D'Onofrio figured the seller was a guy named Brathwaite. He found a photo of Brathwaite and sent it to Glover, who identified Brathwaite as the seller. He was arrested and charged with selling drugs. D'Onofrio did not present Glover with a 'photographic array', or ask him to identify Brathwaite out of a line-up. He only gave him the single photo. It is pretty suggestive to show someone only one photo and say, "I think this is the guy." The Trial Court convicted Brathwaite of selling drugs. He appealed. The Connecticut Supreme Court upheld the conviction. Brathwaite filed a habeus corpus petition with the Federal Court. Brathwaite argued that the admission of the identification testimony at his state trial deprived him of due process in violation of the 14th Amendment. The Federal Trial Court upheld the conviction. Brathwaite appealed. The Federal Appellate Court overturned the conviction. The prosecutor appealed. The Federal Appellate Court found that the identification was faulty because the examination of a single photograph was suggestive and unreliable. The US Supreme Court reversed and upheld the conviction. The US Supreme Court found that the courts should take a totality of the circumstances approach to determining reliability.

 The identification would only violate the Due Process Clause if it did not possess sufficient
aspects of reliability.

In this case, based on the facts of the case (like the fact that Glover was a trained police officer buying
drugs specifically to pay attention and identify the seller), in the totality of the circumstances there was no substantial likelihood of irreparable misidentification. Therefore the evidence should not be excluded. The Court noted that (for example) if the identification had been made by a hysterical victim (as opposed to a policeman), or that the identification had been made months later (instead of days), then maybe the totality of the circumstances would warrant exclusion. It is the defendant's burden to show that the pre-indictment identification process was unnecessarily suggestive and that there was substantial likelihood of irreparable misidentification. Of course, the defense counsel can always argue that the jury should give no weight to the evidence. This standard is only to determine admissibility.