9213 Crim Pro Outline1

8/3/2019 9213 Crim Pro Outline1

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The 4th and 14th Amendments Overview Fourth Amendment (4th Amendment)

o 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 Warrantsshall issues, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the person or things to beseized.

o Two Main Clauses REASONABLENESS CLAUSE WARRANTS CLAUSE

Fourteenth Amendment (14th Amendment)o All persons born or naturalized in the United States and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein theyreside. No State shall make or enforce any law which shall abridge the privilegesor immunities of citizens of the United States; nor shall any State deprive anyperson of life, liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.o DUE PROCESS OF LAWo 13th, 14th & 15th Amendment were created after the civil war

Incorporation Doctrinethe states must be bound by the constitution to the same level asthe federal government

Other Amendments and the Stateso Amendments 13+ are enforced against the Fed and States equally

14th Amendment requires due process of law by state and Fedo Amendments 1-8 are not completely enforced against the states

These amendments are incorporated by a pick and choose system LIFE, LIBERTY and PROPERTY Wolf v. Coloradorights so important they MUST be upheld

Implicit in the concept of ordered liberty. Basic to our free society Fundamental rights

o The 4th Amendments and the States Wolf v. Coloradoevidence obtained against the rules of the 4th

amendment by federal agents, cannot be used in a state court

This case had no federal aspect, so the evidence was permitted If a state official obtains the evidence illegally there is no

protection (Exclusionary rule does NOT apply to the states) Exclusionary Ruleexcludes evidence that is obtained during the

violation of a constitutional right

Applies only to the federal govt NOT the state Weeks v. the United States

Two searches occuro First search is by the state policeo Second search involves the federal marshal


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Exclusionary Rule is created to deter the police fromunconstitutional acts and to maintain judicial integrity

The 4th Amendment is not directed to individual misconduct ofsuch officials. Its limitations reach the Federal Government and itsagencies.

Rochin Rochns house was illegally entered; he swallowed two pills ofmorphine. He was detained and forcibly had to stomach pumped.The pills were produced and used as evidence, this evidence wasnot permitted.

Shocks the conscienceby so egregiously violating the rightsguaranteed by the Due Process right of the 14th Amendment

o 5th Amendment could also be usedo Is an alternative remedy to police misconduct

o Mapp v. Ohio (Exclusionary Rule applies to all) KNOW NAME AND HOLDING All evidence obtained by searches and seizures in violation of theConstitution is, by that same authority, inadmissible in state court. If a criminal goes free, if he must but it is the law that sets him free.

Nothing can destroy a government more quickly than its failure to observeits own laws, or worse, its disregard of the character of its own existence.

Wolf Rule Changed (reversed)o Private Citizensan illegal intrusion by private citizens does not make evidence

inadmissible in court, unless they were directed by a state entity.o Exclusionary Rule Updatedapplies to both state and federal law enforcement

Passing the Threshold of the 4th Amendment

Searches Katz v. United States

o Katz made a call inside of a phone both concerning illegal activities, the phonebooth was bugged to reveal this information, it was found that this bugging wasan invasion of his privacy

o Balance between actions of law enforcement and the victims perceptions.o Search exists where one has asubjective expectation of privacyandwhere

society has determined that the expectation of privacy isreasonable

o The Fourth Amendment governs not only the seizure of tangible items, butextends as well to the recording of oral statements, overheard without anytechnical trespass under property law.

Two Part Test Expectation of Privacy (Harlans Concurrence) (1) The person must have exhibited an actual expectation of

privacy (subjective standard)o The individual must demonstrate that he seeks to preserve

something as private


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(2) The expectation of privacy is one that society is prepared torecognize as reasonable (objective standard)

o The individuals expectation must be reasonable under thecircumstances

Per Se Unreasonable Searchessearches conducted outside of judicialprocess without prior approval by judge or magistrate.

The Katz Doctrine in Applicationo United States v. White (Voluntary Disclosure)False Friend

Factsgovernment informant is sent into private home of White in orderto implicate him in crimes, this is not found to be in violation of the 4 thamendment

Holding - Amendment affords no protection to a wrongdoer misplacedbelief that a person to whom he voluntarily confides his wrongdoing willnot reveal it.

Voluntary Disclosure ExceptionThe Katz rule of Expectation of Privacydoes NOT apply when an individual voluntarily reveals information to a

third party, because there is no expectation of privacy there is no violationof the Fourth Amendment DissentWhite/On Lee do not simply mandate that criminals must daily

run the risk of unknown eavesdroppers prying into their private affairs; itsubjects each and every law-abiding member of society to that risk.

o Smith v. Maryland McDonough was robbed and started receiving obscene phone calls and

drive bys. A pin register was installed on Smithno warrant for this.Phone calls were to McDonough and a warrant was obtained and phonebook found.

Smith filed a motion to suppresshis expectation was phone calls notbeing recorded The Fourth Amendment protects people not places

HoldingAssumption of the Risk Exceptionthere is no reasonableexpectation of privacy, it is common knowledge that the phone companyretains these numbers for business purpose

RuleOne you have exposed it to the public its out there, whether youtell one person or ten

DissentThe Assumption of the Risk idea is misconceived Implicit in the concept of assumption of risk is some notion of

choice that does not exist

The make risk analysis dispositive in assessing the reasonablenessof privacy expectations would allow the government to define thescope of Fourth Amendment protections.

o Search with Electronic Devices and the Home US v. Knottsa beeper was used in order to track a barrel that was to be

used to make illegal drugs, the police followed on public roads andmonitored the barrel outside of the house, it was deemed not to be a search

Driving on a public road, no reasonable expectation of privacy


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o A field need not be a field or openo Includes any unoccupied or undeveloped area outside of the cartilage

of the home, regardless of trespass signs/fenceso Curtilagearea surrounding the home deserving of privacy

Dunn Test (for Curtilage)o

(1) Theproximity of the area claimed to the home

o (2) Whether the area is within the enclosure surroundingthe home

o (3) The nature of the uses to which the area is puto (4) Steps taken by the resident to protectthe area from

observation by people passing by

Dunn test is not a rigid test, rather 4 factors to determine on a caseby case basis whether or not it is appropriate to extend protectionsafforded the home outward into what is considered a cartilage

Greenwoodthe placing of garbage bags on the streets results inassumption of the risk by exposing this information to the outside world

Ciraoloin an age where private and commercial flight in the publicairways is routine, it is unreasonable for respondent to expect that hismarijuana plants were constitutionally protected from being observed withthe naked eye from an altitude of 1,000 ft.

Kyllo v. United Stateso IssueWhether the use of sense enhancing technology not generally available for

public use when used to reveal aspects of the interior of home constitutes a searchwithin the meaning of the fourth amendment.

o RuleA Search occurs if the government uses: (1) A sense enhancing device (2)Not in general public use

(3) To explore intimate details of the home (4) That otherwise could not be done without physical intrusion

o HoldingSuch a search w/o a warrant is a 4th Am. Violationo All details are intimate detailso Dissentthe use of sense enhancing technology constituted off-the-wall

surveillance, rather than through the wall surveillance which does not constitute

a search within the meaning of the 4th Amendment and thus does not require awarrant

o Constitutionally Protectedstill protecting people, but now some placesreceived heightened protection such as the home

o Enhancing Techits all good so long as you dont cross the lineo

***A search that has common or uncommon technology that exposesintimate detailsask yourself this question

Factors to Consider Whether a Search Occurredo (1) Nature of Place Observedo (2) Steps taken to enhance privacyo (3) Degree of intrusivenesso (4) Nature of activity observedo (5) Availability of Technique to the General Public


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United States v. Karoo A beeper was placed in a drum. The drum was originally in the possession of an

undercover officer when the beeper was placed, thus, it was with permission. ITremained in the drum when the drum was transferred.

o Not a 4th Amendment violation.o

Dissent

Ownership = Possession Ownership, exclusion of others By attaching the beeper and using the container to conceal it, the

Government in the most fundamental sense was asserting dominion andcontrol over the property the power to use the property for its ownpurposes. Asserting dominion and control is a seizure in the most basicsense of the term.

o Three categories of seizable items are: Contrabandevidence that may not lawfully be possessed by a private

party

Fruits of a Crime Instrumentalities used in the commission of an offenseSeizures

Seizureoccurs when there is some meaningful interference with an individualspossessory interests in that property. (Karo)

o MUST be more than a technical trespasso Terry v. Ohioseizure of a person occurs when the officer, by means of

physical force or show of authority has in some way restrained the liberty of acitizen.

Plain View Doctrinea search does not occur when an officer:o (1) Sees an object that is in plain viewo (2) From a lawful vantage pointo (3) That has possible criminal implications

Trespass v. Seizure (Karo)o The introduction into a barrel purchased by the does not amount to a seizure,

because of a lack of meaningful interference with a possessory interest, itqualifies as a mere trespass

The Substance of the 4th Amendment

Probable Cause Establishing Probable Cause

o (1) Reasonably cautious person with reasonably trustworthy information ORo (2) Fair probability that contraband/evidence will be found in a particular place

Probable Cause Pluso Involves areas of significantly heightened privacy interest (Ex. Blood sample)o Requires a more substantial justification to authorize search


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Spinelli-Aguilar Testo 2 Prong Test for Informants

(1) Veracitythat the informant is reliable and credible Fact sufficiently establish the veracity of the information or the

reliability of the informant

Is the information corroborative? (2) Basis of Knowledgehow he got the information Illinois v. Gates

o Factsan anonymous tip is provided alleging that a married couple was acting asdrug dealers. The tip provided for unusual travel plans, which the couple didperform several days later. Based upon the corroboration of the letter by theactions of the couple, the police obtained a warrant to search the car and house.Marijuana and weapons were found.

o HoldingSpinelli-AguilarOVERRULEDo Probable Causeexists where the facts and circumstances within the officers

knowledge and of which they have reasonably trustworthy information are

sufficient tin themselves to warrant a man of reasonable caution in the belief thatan offense has been or is being committed by the person to be arrested.

OR Fair Probability OR reasonable cautious person with reasonable trustworthy information

o Gates Totality of the Circumstances Testemploys the veracity and basis ofknowledge as weighted factors in a probable cause analysis that considers thetotality of the circumstances.

Franks Hearing challenge to an under oath statement made by an officero Franks Test, must show:

(1) False statement knowing and intentional OR with reckless disregardfor the truth

(2) Was included by affiant in the warrant affidavito Can element basis for PC and thus suppression of evidenceo Evidentiary Standard = Preponderance of the Evidence (more likely than not)

Common Enterprise/Constructive Possessionallows for sufficient probable cause whenan illegal activity occurs where at least one of the parties is surely guilty.

o Works for drug possession, not for drunk driving (non common enterprise) Stalenessno probable cause exists because the alleged acts occurred so long ago that

the likelihood of their continued existence is low

Arrest Warrants Payton v. New York

o FactsPayton apprehended properly. The get-away driver, Riddick, wassomewhat more questionable. Riddicks son came to the door when the police

arrived and allowed the police to enter, the police then proceeded to enter andarrest Riddick.

o Issueare statutes that allow warrantless arrest based on probable causeconstitutional under the 4th amendment?

o Payton RuleWarrantless home arrests are unconstitutional unless exigentcircumstances exist.


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Physical entry of the home is the chief evil against which the wording ofthe Fourth Amendment is directed.

o Exigent Circumstanceswarrantless intrusion may be justified by: (1) how pursuit of fleeing felon (2) imminent destruction of evidence

(3) the need to prevent a suspects escape (4) the risk of danger to the police or other person inside or outside thedwelling

o Warrantless Seizures of Property Object in Public Place NO Warrant required Object in Home warrant required for entry into home even where

felony has been committed and PC exists that evidence will be foundo Warrantless seizure of persons

Arrest in Public Placesvalid with PC under Watson Arrest in HomeUnconstitutional without exigent circumstances

o Threshold of Privacybegins at the entrance to the home

Watson Rulepublic arrest with probable cause is constitutional Use of ForceMUST go through a reasonable analysis before the use of force

o Tennessee v. Garner Ruleexcessive force occurs when a slight, young, unarmedfleeing felon is involved limited to cases with similar facts

o Harris Ruleto effect a warrantless arrest an officer shall use the amount of forcereasonable under the circumstances

Unreasonable force violates the unreasonable seizure!!! Minnesota v. Olson

o Robbery at a gas station in which attendant was shot. Shooter was seized but thegetaway driver escaped. He was hiding out in a duplex with 2 women.

o Police surrounded the duplex and entered without permission or permit andarrested the subject.

o Olson had an expectation of privacy in the home even though he was not aresident of the home.

Steagald v. United Stateso Arrest Warrant for Lyons and he is supposed to be at the resident of Steagald.o When the police enter the house, no Lyons, but they find cocaine.o They obtain a search warrant and find 43lbs of cocaine.o The court found that police should have obtained a search warrant when they got

the arrest warrant Cocaine was excluded from evidence

Lo-Ji Sales v. New Yorko FactsInvestigator rents two obscene items from Lo-Ji and goes to the TownJustice to seek a warrant on the basis of the two videos. The Town Justice

requests a broad warrant to search the store, the Justice joins the officers inseizing a large number of videos, magazines, and other items not specified in thewarrant. By the time the search is done the warrant had increased from 2 to 16pages.

o HoldingUnconstitutional Search (1) Magistrate failed to act in a neutral and detached manner


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(2) Violation of 4th Amendment by failure to specify (3) Cannot develop probable cause as you go along

o Neutral and Detached Magistrate Requirementrequired in order for a warrant tobe constitutional.

o Search Warrant Requirements

(1) MUST describe the place/person/items to be seized (2) MUST have a neutral and detached magistrate (3) Probable Cause MUST exist at the time the warrant is issued

Richards v. Wisconsino Holdinga per se exception is not allowed for each category of criminal

investigation, otherwise the knock-and-announce element of the FourthAmendments Reasonableness requirement would be meaningless

o Knock and Announce Rule - should knock and announce before the warrantlessentry to a home even if probable cause exists.

Knock and Announce Exceptions (1) Futile to the investigation (2) Dangerous to the officers or the people inside (3) Or would inhibit the effective investigation

Banks Reasonable Time Testreasonable waiting time depends on: (1) Time someone would need to get rid of or hide evidence (2) Need to damage property in the course of entry

Minimal level of objective justification Illinios v. McArthurit is constitutional to withhold an individual from

destroying evidence outside a home while a warrant is secured. Ybarra v. Illinoisindividuals coincidentally at the scene during

warranted search may be searched so long as PC existso US v. Banksthe police have a warrant, they knock and announce but after 15-

20 seconds the knock down the door. The guy didnt hear them because he was inthe shower. The court deemed the entry to be reasonablecould have destroyeddrugs in the amount of time. Extigent circumstances.

o Illinois v. McArthurofficers had McArthur stay outside until a warrant wasacquired, this was found to be reasonable

o Maryland v. GarrisonPolice came into 3rd floor apt and it ended up beingdivided into two. Discovered they were in the wrong apt and stopped searching,but they had found contraband there, court held warrant was reasonable and hewas convicted

Warrant ClauseIs a Warrant Required? Exigent Circumstances

o When a warrant is NOT required Must have PROBABLE CAUSE + EXIGENT CIRCUMSTANCES Hot Pursuit Exception: PC and EC already exist


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o Warden v. HaydenGuy robbed a cab co, went to a house and pretended to beasleep. They were told by the wife they could search the house. They found thedefendant, guns, and the clothing he was wearing. The exigencies of the situationmade that course to invade the home without a warrant imperative and thusreasonable. It was necessary to seize weapons and detain a potentially dangerous

criminal.o Exigent Circumstances - Warrantless intrusion may be justified by: (Olsen)

(1) Hot pursuit of a fleeing felon (2) Imminent destruction of the 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 dwellingo Hot Pursuitthe only exigent circumstances case where probable cause is NOT

required, all other types of exigent circumstances require probable cause.o Emergency doctrineofficers may enter to assist seriously injured or prevent

injury without warrant to provide emergency assistance.

Welsh v. Wisconsinalthough exigent circumstances exist because Welsh may sober upand thus evidence of his intoxication would be destroyed. However probable cause wasnot sufficient because the warrantless arrest in the home was for an offense that isclassified as a minor non-criminal offense.

o Minor Offenseswhen the governments interest is only for a minor offense,that presumption of unreasonableness is difficult to rebut.

o Scopea warrantless search must be strictly circumscribed by the exigencieswhich justify its initiation.

o Care-taking Functionlaw enforcement officers may enter a home without awarrant to render emergency assistance to an injured occupant or to protect anoccupant from imminent injury. WARRANT CLAUSE NOT INVOKED!

Searches Incident to Arrest

o Chimel v. Californiathe search here went far beyond the petitioners personaand the area from within which he might have obtained either a weapon orsomething that could have been used as evidence against him.

o Search incident to arrestonly the area within the immediate control of theindividual to be obtained are permissible

o Dissentwhere the existence of independently established and would justify awarrant for a broader search for evidence, I would follow past cases are permitsuch a search to be carried out without a warrant, since the fact of arrest suppliesan exigent circumstance.

o Probable Cause to Arreststrictly limits the search to that circumstances thatare incident to arrest.

Automobiles: Arrests of Occupants and Searches Arrests of Automobile OccupantsThe Exceptions

o NY v. Belton Ruleif a lawful arrest of occupant occurs, the officer may

contemporaneously search the compartment of the auto


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Containersthe police may also examine the contents of any containersfound within the passenger compartment (does not include the trunk)

o Arizona v. Gant BELTON OVERTURNED!!! Chimel + Rationale Stands New Gant Rulepolice can search a vehicle incident to a recent

occupants arrest ONLY: (1) If arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search AND

(2) It is reasonable to believe evidence relevant to the crime ofarrest might be foundin the vehicle.

Carso Whren v. US

Plainclothes officers pull over a car that remained at an intersection for along period of time and then sped off at an unreasonable rate of speed.The police pulled them over and saw a bag of crack cocaine on the lap ofone individual. They arrested the individuals and proceeded to search the

rest of the care. Traffic Search Rule: So long as police have PC to stop an auto, a traffic

search of the vehicle w/o warrant is permissible Gant Test Fulfillment Fulfills first prong, but not second Post BeltonPre Gant

o Chambers v. Maroney Men arrested matching description of those who had previously robbed a

store, probable cause existed to arrest the man. The car was then takeninto police custody and searched without a warrant revealing incriminatingevidence that prove the men are guilty of the crime.

Seizure of Car RuleSo long as probable cause existed to search the carat the time of the arrest of the occupants, there is no reason to withdrawthe ability to conduct a warrantless search because the car has now beentaken into custody.

California v. Carneymobile home search - there is no distinguishingbetween worthy and unworthy vehicles, meaning regardless of the type

of motor vehicle it is still possible to conduct a warrantless search so longas probable cause exists.

Mobile Homes Standardautomobile exception applies to mobilehomes if they are readily mobile. Apply Katz Test

Factors to Consider (whether)o (1) Locationo (2) Readily mobileo (3) Elevated on blockso (4) Licensedo (5) Connected to Utilitieso (6) Convenient Access to Public Roads

o Automobile Inventory Warrant Exception Lawfully seized propertysearch w/o warrant is legal to:

(1) Protect owners property while it remains in custody


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(2) Protect police against claims over lost/stolen property (3) Protect Police from potential danger

Containerscan also search containers within a car, so long as it is part ofregular police procedure

Containers in Carso US v. Chadwick Foot locker filled with MJ was taken from trunk of car by feds, 90 min

later they search the truck. Rulewhen no exigency is shown to support the need of an immediate

search, the warrant clause places the line at the point where the property tobe searched comes under the exclusive dominion of police authority.

Sandersthere is no justification to the warrantless search of onespersonal luggage merely because it was located in an automobile lawfullystopped by the police.

Ross- a warrant to search a vehicle would support a search every part ofthe vehicle, including containers therein, that might contain the object of

the search. Contradictionwhere evidence exists to search the car you can search any

container within, however when evidence exists to search a containerswithin a car, the car may be search but the container not opened without awarrant. More ability with less probable cause!

o California v. Acevedo FedEx package containing MJ, guy picks it up and goes home. Another

guy stops by and leaves with a brown paper bag and places it in his trunk.Police pull over and search he truck and find MJ in continer.

CHADWICK OVERULED!!! (for packages in cars) CHADWICK STILL CONTROLLING for packages that are not

found within cars. Containers in Cars Rule: Where law enforcement has probable cause to

search container in a vehicle, no search warrant is required to search thecontainer.

Plainview (and Touch) Doctrines Plainview Doctrine No PC Needed

o (1) Must observe the object from a lawful vantage pointo (2) Limited by scopeo (3) The incriminating character of the object in plain view must be immediately

apparent

o Horton v. Californiainadvertence is not an essential part to the plain viewdoctrine. It creates a subjective intent element to the reasonableness of the searchwhich the court hesitates to do.

o Arizona v. HicksProbable cause is required in order to conduct a search of itemsthat are not contained within the warrant, in this the incriminating character of theitem was not immediately apparent

Seizuremust meaningfully interfere with the possessory interest


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Plain Touch Doctrineif officer lawfully conducts pat down for weapons and feelsobject whose contour or mass makes it identity immediately apparent, there is noinvasion of privacy beyond that already authorized by the initial search.

Consent

ConsentMust be voluntary (express or implied)o Schneckloth v. Bustamontewhen the subject of the search is not in custody and

the State attempts to justify on the basis of his consent, the Fourth and FourteenthAmendments require that it demonstrate that the consent was in infact voluntarilygiven, and not the result of duress or coercion, expresses or implied.

Voluntariness Rulethe voluntary nature of consent will be determinedfrom a totality of the circumstances test involving:

(1) Subtly coercive police questions (2) Possible vulnerable state of consenting person (3) Intelligence (4) Education level

Exception: Need not demonstrate proof of the knowledge to refuseo Invalid Consent

Coercionif no real alternative to consent, then coercion Invalid Warranta warrant purporting to be valid, later found invalid

does not amount to consent

Cotenant Consento Matlock Cotenant Consent Rule:

(1) Shared common authority then (2) Assumption of Risk In shared occupancy situations the co-tenants that appear to share common

authority over the premises assume the risk that their cotenants to will

consent to the search of the premises.o Georgia v. Randolph

Rulefrom class Objecting party must be present Objecting party cannot be removed solely to avoid objection

Co-tenant Objection Rule Consent Invalid If: (1) A warrantless search of a shared dwelling for evidence (2) Over the express refusal of consent by a physically present

resident Policy Reasons

Social Expectation of Privacy Exists Katzprovides a reasonable expectation of privacy

o Assumption of the risk is still VALID One cotenants consent cannot override anothers objection CANNOT intentionally avoid cotenants that would knowingly

object Dissent:


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Is criminal activity afoot? Reasonable Suspicionthe police officer must be able to point to a

specific and articulable facts which, taken together with rationalinferences from those facts, reasonably warrant that intrusion.

(3) Objective Standardwhether or reasonably prudent man in thecircumstances would be warranted in the belief that his safety or that ofothers was in danger

(4) The scope of the search (frisk and so on) is reasonableo Terry Frisks BIG 2 PART TEST + Scope

(1) Does reasonable suspicion exist that reasonable activity was afoot inorder to merit a stop?

(2) Once a stop has occurred, is there reasonable suspicion to conduct thefrisk?

Scopeis the scope of the search within the reasonable suspicion. Terry

o Reasonable suspiciono Pat downstop and frisk based on officer safetyo No probable causeo Seizurerestrainednot free to walk away

o Terry Seizures vs. De Facto Arrest Dunaway v. New Yorkthe application of the 4th Amendment

requirement of probable cause does not depend on whether an intrusion ofthis magnitude is termed an arrest under state law. This qualified as ade facto arrest.

Intrusivenessthe level of intrusiveness may give rise to a de facto arrest. Florida v. Royerreasonable suspicion does not satisfy the probable

cause standard, and thus detainment the otherwise rises to the level of

arrest is not authorized. Pennsylvania v.Mimmsdrivers can be asked to get out of the car for

officers safety Maryland v. Wilsona passenger can be asked to step out of the carthe

rule for the driver extends to the passenger United States v. Sharpe/2 Part Test to Reasonableness of Stop

(1) An investigative detention must be temporary and last nolonger than is necessary to effectuate the purpose of the stop.

(2) Did the police diligentlypursue a means of investigation thatwas likely to confirm or dispel?

o Seizure versus Non-Seizure Encounters United States v. Mendenhall Seizure Test (1) Was suspect seized and why?

(2) If seized Terry seizure or Defacto Arrest? (3) Seizure Justified

o If Terry Need reasonable suspiciono If De facto Arrest Need probable cause

Hodari Exception to Seizurea seizure has not occurred until an officerhas exercised control over the citizen


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A criminal was fleeing the police and discarded a bag of cocainewhile fleeing. This bag was not a fruit of a seizure because it wasdiscarded before the suspect was apprehended.

Terry ReviewTerry defines seizure as a circumstance where a Reasonable Person will not feelfree to either walk away or terminate the encounter. Consent is an exception to Reasonable

Suspicion, just like to Probable Cause. Reasonable Suspicion also has scope limitations (brief,on-scene)

Reasonable Suspicion Information and Reasonable Suspicion

o Hiibel Stop and identify statutes - are legal so long as reasonable suspicion exists BUT if a state law is over broad and vague, it will not be held to be valid

under the constitutiono Alabama v. White/anonymous tipif it provides no predictive information and

leaves police with no means to test the informants knowledge or credibility, and

thus does not give rise to reasonable suspicion it does not create reasonablesuspicion.

Levels of Information (Informations)o No Reasonable Suspicion

Unknown informant No corroboration

o Reasonable Suspicion Reliable Informant Unknown + Highly Predicated/Corroborated

o Probable Cause Known Informant Significant Corroboration

Illinois v. Wardlowo Reasonable Suspicion Unprovoked Flight

Unprovoked flight likely rises to the level of reasonable suspicion Officers are not required to ignore the relevant characteristics of a location

in determining whether the circumstances are sufficiently suspicious towarrant further investigation.

Extending the Terry Doctrine Maryland v. Buie- Man is arrested and a search is conducted of the immediate area of his

basement where he is arrested in his home, it is argued that the search violate the fourth

amendment United States v.PlaceMan refused a search of his luggage, DEA agents took his bag

and subjected it to a sniff test. Monday morning magistrate issued a warrant for search,cocaine was found

Michigan v LongMan pulled over, large hunting knife was seen. Officers searched forother weapons and saw marijuana.

o Protective Sweepif justified by the circumstances it may extend to a cursoryinspection of those places where a person might be found to dispel the reasonable


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o Katz + Standing Test (1) The has an expectation of privacy

Must have apossessory interestin evidence that is seized Factors of Possessory Interest

o (1) whether the claims ownership in things to besearched

o (2) Right to control/authority over the property (2) That expectation is one that society is willing to accept as

reasonable.o Standing Key - Must have possessory interest in or a close connection to the place

being searched that would give rise to a reasonable expectation of privacy.

Business Transactions in Another Home Unprotectedo Minnesota v. Carterofficer observes three individuals packing drugs through

the blinds of an apartment, two of the men had no relation to the apartment exceptto arrive there to pack the drugs.

o Factors Commercial Activity How long present Possessory interest in thing to be searched

Leon Good Faith Exception: Reasonable reliance on a subsequently invalid searchwarrant cannot justify the substantial cost of exclusion

o Exceptions to the Exception Evidence MUST be suppressed if: (1) Magistrate was misledby information in the affidavit that the affiant

knew wasfalse, or that the affiant acted in reckless disregardof theinformations truthfulness, or

(2) The magistrate wholly abandoned his judicial role in the mannercondemned by Lo-Ji sales, or

(3) The warrant was based on an affidavit so lacking in indicia of pc as torender belief in its existence entirely unreasonable, (4) The warrant is so facially deficient(such as where it fails to

particularize the place to be searched o the things to be seized)

Fruits of the Poisonous Tree

Silverthorne Lumber Co. v. United Stateso In generally, the er extends not only to the direct products of an unc. search and

seizure but also to ancillary evidence that results from the illegal search.

This doctrine is subject to three qualifications:

o The independent source doctrineo The inevitable discovery rule, ando The attenuated connection principle

Independent Source Doctrine: Evidence that is not casually linked to unc.governmental activity is admissible pursuant to the independent source doctrine,

o The doctrine applies if the challenged evidence is:


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(1) Identify the tree (illegal act) (2) Identify the fruit (evidence obtained) (3) Causation (link between the tree and fruit) (4) Exceptions: Dissipation of taint, independent source, intervening

cause

Wong Sun v. United Stateso Four factors for a Dissipated Taint (1) The length of time that has elapsed between the illegality and the

seizure of the fruit in question (2) Theflagrancy ofthe initial misconduct (3) The existence or absence ofintervening causes of the seizure of the

fruit (4) The presence or absence of an act of free will by the resulting in the

seizure of fruito CaseAn unlawful invasion was made:

The statement given directly after = OUT

The heroin found based on this info = OUT A voluntary statement made several days later = IN Murray v. US

o Independent Source Doctrineapplies to evidence initially discovered during,or as a consequence of, an unlawful search, but later obtained independently fromactivities untainted by the initial illegality.

o The police illegally broke into a warehouse and observed numerous bales ofmarijuana. A warrant had been requested based upon probable cause, but not yetarrived. The officers after seeing the pot, waited for the warrant to arrive and thenseized the marijuana.

Holdingbecause the marijuana would have been found later with thewarrant which was based on independent probable cause, the evidencewould have been found independent of the illegal entry.

o Inevitable Discovery Doctrinetainted evidence that would have inevitably bediscovered through an independent source, but was first discovered illegally isadmissible

ConfessionsThe Voluntariness Requirement

Torture An confession obtained via torture is clearly inadmissible

General Rule: A confession that results from police coercion violates the5th A. (as applied to the 14th) privilege against compulsory self-incrimination.

Consider factors

below that may negate the voluntariness of a confession:

Actual or threatened physical forceo Hector (A Slave) v. State (1829): A slave was accused of stealing money and was

beaten into confessing that he stole it. He brought the man back to his masters


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o Escobedowas arrested on suspicion of murder. He repeatedly asked for advicefrom his lawyer and was denied. He lawyer was also forbidden from accessinghis client, the court found that the 6thAm. Was violated and Escobedosincriminating statements were inadmissible.

5 Objectives to Exclude Involuntary Confessiono

(1) To avoid unreliable confessions

o (2) Deter conduct so offensive as to shock the conscienceo (3) Deter less-than-shocking but still inappropriate conducto (4) To discourage the use of a inquisitorial systemo (5) To deter police from overbearing a suspects will

MirandaA New Law of Confessions Basic Constitutional Rights

o 5th Am.no person shall be compelled in any criminal case to be a witnessagainst himself

o 6th Am.the accused shall have the assistance of counsel Miranda v. Arizonathe state may not use statements stemming from custodialinterrogation of unless there are procedural safeguards in place to secure the privilege

against self-incrimination. These safeguards must be given upon arrest (in custody) andbefore interrogation.

o Miranda Safeguards (1) Informed of theRight to Remain Silent (2) Anything said by can and will be used against in court (3) Right to consult with a lawyerand to have the lawyer during

interrogation (4) If a lawyer cannot be afforded one will be appointed

Triggering Miranda5th Am. Privilege is available outside of criminal courtproceedings and serves to protect persons in all setting in which their freedom of action iscurtained in any significant way from being compelled to incriminate themselves.

o Two Part Miranda Triggering Test (1) Custodial (2) Interrogation

o Custody - whether a reasonable person in the defendants position would believehimself to be deprived of freedom in a significant mannerby the police.

Traffic Stopsan ordinary traffic stop is not in custody for the purposesof Miranda. Custody means arrest or its functional equivalent (McCarty)

No Choice but to Submitif a voluntary statement is made (to a probationofficer) it does not rise to the level of custody because a choice to answer

exists, there is no formal arrest, and no restraint on freedom of movement(Minnesota v. Murphy)

Terry Stopsdo NOT implicate Mirandao Interrogationexpress questioning or its functional equivalent

More than custody required: the level of compulsion must rise abovemere custody to become an interrogation. Subtle compulsion is notalways interrogation, subjective police intent may point towards objectiveknowledge of existence of an interrogation. (Rhode Island v. Innis)


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Test of Interrogation (1) Whether the police should know (Objective) (2) That they are reasonable likely to evoke an incriminating

response from the suspect.

Miranda Expectionso Uncover Officer Exception = NO Interrogation: Miranda warnings are notrequired when the suspect is unaware that he is speaking to a law enforcement

officer and gives a voluntary statement (Illinois v. Perkins)o Factors

Coercive atmosphere lacking Police identity not known Voluntary submitted statement

o Public Safety Exceptionthere is an exigency requiring immediate action by theofficers beyond the normal need expeditiously to solve a serious crime. (Quarels)

Balancing TestMiranda now weighs the interest of the public safetyagainst the suspects 5th Am. rights

Policy Considerations- the now bear the brunt of the disadvantageaccording to the balancing test in the name of public safety where as theofficer used to bear this burden when determining if the public safety wasworth evidence being excluded.

Mirandas Constitutional Statuso Michigan v. TuckerMiranda not a Constitutional Straightjacket

Good Faith OmissionDoes NOT trigger exclusionary rule A good faith omission of Miranda will not trigger the exclusionary

rule. Miranda was created to provide practical reinforcement forthe right against compulsory self-incrimination.

o Oregon v. ElstadMiranda does NOT implicate the Const. like 4th Am. Fruits of the Poisonous Tree Does NOT apply Violation of the Miranda Rule does not constitute a direct violation

of the 4th Amendment and therefore any fruits of that poisonoustree are not to be excluded like occurs when violations of the 4thAmendment, because no amendment has been directly violated.

2 Round InterrogationsIf a first confession is initially given absentMiranda rights, then rights are administered, the question of the secondconfession after the Miranda violation is whether or not it was voluntary

Cat out of the bag issueoccurring when the police conduct a confessionwithout Miranda warnings, give the warnings and then redo thisconfession.

o Dickerson v. United StatesMiranda is a Constitutional Rule Majoritythe Miranda rule amounts to a constitutional rule that Congressmay not supersede legislatively

This rule has been applied to the states, it cannot be merely proceduralbecause otherwise the states would have created their own rules

Miranda attached at a custodial interrigation Minoritya violation of the separation of powers by allowing the courts

to overrule the decisions of congress.


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6th Am. Right to Council & Police Interrogation Eliciting Statements in the Absence of Council

o Massiah v. US - petitioner was denied the basic protections that guarantees of the5th and 6th Am. When his confession was deliberately elicited by the police after

the defendant had been indicted. Duration of Right to Council (Powell v. Alabama)

o From the time of their arraignment until the beginning of their trial, thedefendants are as much entitled to counsel during that period as the trial itself.

o Brewer v. Williams The Christian Burial Speech Standard of Waiverit is incumbent upon the State to prove an

intentional relinquishment or abandonment of a known right or privilege. Factsdespite Williams express and implicit assertions of his right to

counsel, the Detective proceeded to elicit incriminating statements fromWilliams by appealing to his Christian faith after he has been indicted andin the absence of his council.

Rule: Right to council must apply to indirect and surreptitiousinterrogations as well as those conducted in the jailhouse.

Dissent - waiveris shown whenever the facts establish that an accusedknew of a right and intended to relinquish it, as in this case.

o HenryDeliberate Elicitation NOT allowed once formal proceedings begin Once formal proceedings have begun the govt may not deliberately elicit

information from a suspect without first obtaining a waiver of rights.Including jailhouse informants.

Standard: Broader than interrogations, no trickery allowed,o Kuhlmann v. WilsonMere listening does not qualify as elicitation

Defendant must demonstrate that the police and their informant too someaction, beyond mere listening, that was designed to deliberately elicitincriminating remarks

Massiah Waivero Brewer v. Williams - Man suspected of murder. An arrest warrant had been issued

against him and his attorney told him not to make any statements. Man (throughhis attorney) agreed that no questions would be asked during his trip with POs.However, during the trip, POs gave him the Christian Burial Speech, knowingthat he was a former mental patient. Man directed him to the body and he wasconvicted a result. The issue was whether the conduct deliberately elicited the

statements from the and the court held that the Pos had done this.o Waiverintentionally relinquishment of a known right

Elements for 6th Amendment:o There must have been an initiation of Judicial Proceedings

Occurs as early as indictmentso There must have been a deliberate elicitation

There may be a waiver Interrogationfor some other offense is okay (meaning the PO can call and

ask the about a possible murder if the has only been arrested for drugtrafficking)


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The public safety exception that applies forMiranda does NOT apply forthe 6th

It does appearthat the fotpt does apply for the 6th A. (although it does notapply forMiranda)

Even though something was taken in violation of ones 6th, it may still beused to impeach the person if he chooses to take the stand

Noteso Compare the 6th Amendment withMiranda

Miranda is whether the POs actions or words are reasonablylikely toelicit a statement from the defendant

Consider the particularities and the susceptibilities of the suspecto 6th Amendment is whether the POs deliberately elicit

Consider the intent of the PO (as opposed to the characteristics of thesuspect)

o Right to Council: 5th and 6th Am. General Ruleinvoking the 6th Am. Right to council protect the defendantonly for the specific offense for which it was invoked. The 5th Am. Is not

invoked to provide an impermeable shield against all possible offenses,and thus any offense that the 6th Am. Right it not specifically invoked for,will not be protected.

Documents

9213 Crim Pro Outline1