Crim Pro Full Outline

8/3/2019 Crim Pro Full Outline

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I. INTRODUCTORY MATERIALS

a. Civil Cases

i. Private causes of action

ii. Remedy is compensation (usually)b. Criminal cases

i. Public Remedies in 99% of the cases

ii. The other 1% will be civil unless the "compensation" is so punitive as to be regarded as

criminal penalty1. Remedies

a. Generally fines AND/OR

i. If the statute says "fine" it is probably criminalii. If the statute says "civil fine" it is probably civil unless the civil

fine is for an extraordinary amount ("civil fine of 1,000,000,000")

b. Jaili. Jail is automatically criminal UNLESS

1. Sex offenders are in civil incarceration in order to provide

treatment2. Contempt

a. Civil-jail is not mandatory: only persuasive tool toenforce order of the court

b. Criminal-mandatory payment or jail-timei. COMPARE Clinton Hypo: mandatory

payment of fine for contempt was deemed

civilc. Incorporation Doctrine

i. Duncan v. Louisiana : Whether the right to a jury trial under the 6th Amendment is

incorporated through the 14th Amendment to apply to the states1. Majority view: (J. White)Selective IncorporationThe rights in the Bill of

Rights that are important to the American system of justice and other similar

rights not enumerated are incorporated to apply to the states2. Concurring: (J. Black)Total IncorporationAll of the rights in the Bill of

Rights, and no others, are incorporated to apply to the states

3. Dissent (J. Harlan)Federalism View14th Amendment involves liberty and

due process, ideas of fundamental fairness. As such, whether a right in the Bill ofRights applies to the states should be determined on a case-by-case basis with a

view to the principles and fundamental aspects of society

ii. Floor v. Ceiling1. The federal Constitution is a floor: grants only minimal rights

2. State Constitutions can be a ceiling: may grant more protection than the federal

Constitution.

II. THE FOURTH AMENDMENTTHE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSON, HOUSES, PAPERS AND

EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALLNOT BE VIOLATED, ANDNO WARRANTS SHALL

ISSUE, BUTUPONPROBABLECAUSE, SUPPORTEDBYOATHORAFFIRMATION, ANDPARTICULARLYDESCRIBINGTHEPLACETOBESEARCHED, ANDTHEPERSONSORTHINGSTOBESEIZED.

a. Introduction

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i. The government search and seizure of persons, houses, papers, and effects must be

reasonableii. Warrants shall have probable cause supported by oath/affirmation describing the searches

and/or seizures.

iii. The Reasonableness and the Warrant Clause1. Generally, for a search to be reasonable, there must be a warrant: otherwise, the

search or seizure is presumed unreasonable.

iv. "The People"

1. Fourth Amendment applies when a US government searches or seizes a USperson

v. Probable Cause

1. Minimum showing to support application for a warrantvi. State Action

1. Only a US government can be bound by the search or seizurethe state must act

2. Private action does not trigger Fourth Amendmenta. Other legal remedies are available (theft, larceny, etc)

3. IF private action is so closely related to the government so as to be regarded as

acting on the government's behalf, then the private actor may be subject to theFourth Amendment under the law of agency

vii. Remedies1. Suppressed evidence at trial for violation of the Fourth Amendment

b. Identifying Searches or Seizures: STEP ONE

i. Search occurs where

1. Subjective (Actual) expectation of privacy exists in the person searched

a. Steps taken to show private activity AND2. That is a reasonable expectation of privacy recognized by society as legitimate

a. KATZopens up telephone booth, closes door, pays money, and has a

conversation with another. Police placed listening device on booth. Katzhad an actual expectation of privacy because he closed the door behind

him, paid money, used the telephone, and there was no one else around.

At that time, society recognized closed phone booths as reasonably privatebecause it is not necessarily the public status of the phone booth but theactions and location that serve as the objective privacy expectation.

i. The Searchesconversation, opened briefcase and looked, wen

through papersii. The seizuresarrest, took briefcase (see next)

ii. Seizure occurs where

1. There is an interference with property rightsa. Seizure of the person (arrest) is an interference with personal freedom

iii. Open Fields DoctrineFails the objective privacy expectation of Katz

1. A person does not have a legitimate expectation of privacy in an open field

a. Society is not prepared to recognize that as legitimatei. If property is open, it is not private

ii. The text of the Fourth Amendment states houses, papers, and

effectsb. OLIVERpot in the farm, argued Katz, held that there was no search for the

reasons stated above

c. Distinguish searches and seizures heresearch of the open field may beok, but if there it a seizure, then it must be reasonable

2. Curtilage in the open fieldmay meet the legitimate expectation prong of Katz

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a. Proximity to the home

b. Enclosuresc. Use of the area within the curtilage

d. Steps taken to protect from passers-by

iv. Consensual Electronic Surveillance (Informant wears a wire)1. Assumption of Risk Test

a. People have a reasonable expectation of privacy against the police, bu

there is no reasonable expectation of privacy against non-police whom

people speak tothus, one "assumes the risk" of having that person relaymessages to the police

v. Bank Records

1. Where police request bank records, there is no reasonable expectation of privacy because the records are readily accessible to the bank employees. As such, a

person assumes the risk that the bank records will be accessed by others

including the policevi. Pen Registers telephone companies record the number dialed

1. A person does not have a reasonable expectation of privacy when dialing a

number because telephone records are voluntarily turned over to everyoneworking for the telephone company

vii. Pagers1. Where a person calls the pager and leaves a phone number, the person who leaves

the phone number has no reasonable expectation of privacy because they haveconsented to broadcasting their number on the display of the pageranyone can

read that number.

a. Similarity between pager display and caller I.D. BUT2. A person who possesses a pager has a reasonable expectation of privacy in the

numbers stored inside

a. Similarity between numbers stored in pager and paper address book orprivate papers

viii. Trash

1. A person has no reasonable expectation of privacy in their trash because it isaccessible by the public, trash collectors, and the like.

a. Once trash is placed on the curb in front of a house, the result is virtua

consent that someone will take away the trash, even though not consent to

the police taking the trash away.2. Trash in an open filed

a. If the open field doctrine applies, there is no search BUT

b. Seizure must still be reasonablei. There is probably no seizure because a person gives up possession

of trash BUT

ii. If trash (e.g., burn barrel) within the curtilage, may be a search

ix. Public Areas1. Homeless persons

a. Reasonable expectation of privacy in contents of duffel bag and cardboard

box kept on public propertyi. Possessory interest in property

ii. Homeless want to protect their privacy

1. Distinguish trash cases where no expectation of privacyexists

b. No reasonable expectation where belongings stored on private property

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c. No reasonable expectation of privacy in a bathroom stall where anyone

could observe from outside the stallx. Aerial Surveillance

1. Where public has access to viewing the area surveilled, there is no reasonable

expectation of privacy2. Person assumes the risk BUT

3. If overflight disturbs property, the search is too intrusive

a. Ciraolo 1000 feet above home in a plane was not a search

b. Dow Chemical Aerial photographs of industrial plant taken by the EPAwas not a search

c. Riley 400 feet above home in a helicopter was not a search

xi. "Plain Feel Searches"1. Manipulation of a bag (touching, feeling) in public bus is a search under Katz

a. Probing tactile examination of property is more intrusive than plain

viewingb. May be equally likely or unlikely for members of the public to touch bags

BUT touching has a different effect than viewing

i. Bond officer at border patrol felt 's bag then asked him to

search. gave consent and found drugs. Held: search.

actually expected privacy because the bag was closed and noeasily found on the top shelf. There is a reasonable expectation ofprivacy because even though others might have touch the bag the

same way, it was highly unlikely that other passengers would

manipulate the bag as the agent did.

2. Because of September 11, the outcome would probably differ.xii. Thermal Detection Devices

1. Kyllo police use thermo-imaging device to detect heat level from home and

discover marijuana. Held: search2. A device that detects heat levels from inside the home is a search

a. Subjective expectation of privacy regarding the home and the hea

therefromi. Just because technology can identify activities in your home does

NOT mean a person loses their subjective expectations of privacy

b. Reasonable expectation of privacy regarding technology

i. Availability to the general public1. More available to the general public, less likely it is a

search

2. Less available to the general public, more likely a searchii. COMPARE thermo device with eyeglasses

1. If police use eyeglasses to detect activity, not a search

because many members of the public have access t

eyeglasses2. If police use night vision goggles to detect activity

probably a search because not everyone has access to night

visionxiii. Police Dogs

1. Dog sniffing is not a search itself if all sniff reveals is presence of an illega

substance BUT2. Cannot be grounds by itself for opening bag, luggage, etc.

c. Reasonableness and Warrant Clauses

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c. Police follow-up investigation

2. Standard for magistrate to issue the warranta. Fair probability that evidence of a crime will be found (common sense)

3. Standard for court reviewing magistrate's decision

a. Substantial basis for concluding probable cause existed (deferential tomagistrate)

4. Gates Anonymous letter with conclusory statements, police investigation

reveals criminal activity, police get warrant, search the car, trunk, and house

HELD: search valid because probable cause existeda. Under Spinelli, there was no veracity because the letter was anonymous

(informant never used before). There was corroboration but there was no

reliabilitythe letter had no real basis of knowledge because there wereonly conclusory statements. HOWEVER, the test is "probable cause" no

simply the Spinelli factors Therefore, under the totality test, there was

probable cause.iv. Persons giving information as basis for probable cause

1. Police are presumed truthful and reliable

2. Citizens are treated as upstanding citizenspresumption that they are truthfula. Eyewitnesses (bank employees)

3. Informants do not carry the same presumptionsa. Informants merely giving information

e. Nuts and Bolts: Place to be search and things to be seizedinformation in the warranti. Place to be searched

1. Warrant must be correct

a. Correct person, specific nameb. Correct address, correct place BUT

2. Test

a. Whether the officer make a good faith effort to accurately describe placeto be searched

ii. Things to be seized

1. Police can search places that could reasonably hold the "thing" to be seizeda. Proceeds/Fruits of crime

iii. Execution of the Warrant

1. Must be reasonable execution of the warrant

a. Example: swallowed a balloon of cocaine, warrant described the

particular place they were looking for BUT it would be unreasonable to

cut him open, conduct ultrasound etc. to search his bodyjust wait till he

shits it out.iv. Federal Rule of Criminal Procedure 41

1. Federal magistrate or state court within district can issue warrant

2. Property/persons seized

a. Contrabanditems not lawfully possessedb. Property

c. Instrumentalities of crimed. Fruits of crime

3. 10-day limit on the life of the warrant ("staleness")

a. things/persons might move from the place to be searched4. Must be conducted in the daytime (before 10:00 PM)

a. This is part of the reasonableness requirement

5. Copy and receipt for property seized

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6. Remedies for unlawful search/seizure

a. s can motion for a return of property if believed unlawfully seized OR

b. Motion to suppress evidence at trial

v. Magistrates: Must be Neutral and Detached1. No lawyer requirement

2. Judiciary must issue, not law enforcement officer

a. Magistrate cannot be employed as an officer

3. s can challenge the adequacy of the magistrate's ability to issue a warrant BUTa. it is very rare that they will win

b. The only exception is where a magistrate does something completely

ridiculous, like going along on the searches/seizuresf. Exceptions to the Warrant Requirement

i. Arrests without a warrant (bright-line rules)

1. IF felony or misdemeanor in presence of officer THEN no warrant requirement toarrest

2. IF felony not in presence of officer AND probable cause THEN no warran

requirement to arresta. Watson informant says Watson has stolen credit cards, police set up

meeting between informant and Watson, Informant gives signal and policerush inWatson does not have them on his person, but consents to policesearch of car, they find credit cards in floor mat. Watson challenges the

arrest because the arrest caused the search. Heldno arrest warran

required

i. Probable cause was met because the informant was reliableevidence of credit card from informant and corroborated at the

meeting with the signal to police

ii. Felony in presence of officers (credit card fraud)iii. Reasons for foregoing the warrant

1. Plain view

2. Flight risk3. History and tradition in common law

b. Why get warrants?

i. Strengthen case

ii. Practicalityii. Arrests without a warrant for misdemeanor-fine only offense (Bright-Line Rule)

1. No arrest warrant required where misdemeanor is committed in the presence of an

officera. These are rare cases that won't happen often

b. Officers need bright line, clear rules so officers can understand and follow

2. Atwater Texas law allowed arrest without warrant for violation of seatbelt law

pulled over for no seat belt, then arrested, jailed, bailed, pled guilty, paid fine,and then sued under 1983 for violating her Fourth Amendment rights.

argues unreasonable seizureif BIG misdemeanor, officer needs PC and inpresence for warrantless arrest. If LITTLE misdemeanor, officer cannot arres

without a warrant. HELD: reasonable to arrest without warrant for misdemeanor

committed in presence of the officer.

3. Dissent Rule should be a balance of government interests with private interestsa. Extent of the intrusion v. government interest

iii. Arrests at the Home (Bright-line rule)

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1. Arrest at the residence of a person requires a warrant AND

2. Reason to believe the suspect is there (not probable cause)a. Presumption in favor of reason to believe

b. Can be rebutted

3. Exigent circumstancesno requirement of an arrest warranta. Fleeing felon escapes into home = no warrant requirement

4. In the home

a. Inside door and opened voluntarily = warrant requirement

b. Outside of the door and opened voluntarily = no warrant requirement5. Payton police went to Payton's home based on probable cause to believe he had

murdered someone; they had no warrant; they entered and found a gun but not

Payton. HELD: arrest warrant was required6. Hierarchy

a. Home

b. Apartmentc. Hotel Arrest warrant will not be required as you move down

d. Office

e. Public

7. Federal Rule of Criminal Procedure 4a. Arrest standardprobable cause to believe committed a crime

i. Arrest warrant issued OR

ii. Summons where no arrest is made

iv. Procedure after Warrantless Arrest

1. Due process requires that have a probable cause determination after his arrest(flexibility and specificity)

a. Probable cause determination must be made within 48 hours of the arrest

i. If so, the determination is presumed constitutional

ii. It is the 's burden to prove otherwise

1. Show that no delay was necessary

2. Show that they tried to collect evidence within that timeb. If probable cause determination is made outside of the 48 hour limit

i. The determination is presumed unconstitutional

ii. It is the government's burden to prove otherwise1. Show that there was no way to get them a hearing within 48

hours

c. Where evidence is obtained within the 48 hour span (exconfession)BUT government fails to give a hearing within 48 hours

i. The evidence obtained within the 48 hour span is NOT suppressed

UNLESS the delay caused the evidence to be obtained

2. Riverside v. McLaughlin local policy allowed for PC hearing to be conducted

up to seven days after arrest. Class action challenged the policy. Lower courtheld that determination must be made ASAPright after booking in every case.

Supreme Court reversedthat would be a fiscal burden on local government.Articulated the above rule.

v. Stop and Frisk (Terry Stop)Terry was one of three hoodlums casing a joint

suspiciously. Officer McFadden was an experienced copwalks over to the threewithout a warrant, he stops, frisks for weapons, and finds a gun on Terry. Held

reasonable

1. STOP AND FRISK STANDARD

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a. (Stop) Reasonable suspicion that criminal activity is afoot

i. Reasonably prudent police officer with his/her experienceii. Point to specific and articulable facts that justify the stop

1. Connection between officer's experience and facts present

iii. Free to leave standard

1. If is free to leave, only an encounter has occurredthus

no Fourth Amendment problem (see below)

b. (Frisk) Reasonable suspicion that poses danger to officer

i. Pat down for weaponsii. Search for safety of the officer NOT for evidence of a crime

2. Stop and Frisk after tip from Informant: Adamsinformant tells officer " has

gun and drugs" in a violent neighborhood; Officer reaches in 's car and finds

gun. HELD: reasonable stop and frisk

a. Stop and frisk standard is satisfied if an informant gives officer a tip abou

a . BUT COMPARE

3. Stop and Frisk after anonymous caller: Florida v. J.Lanonymous informer tells

police a black male with a plaid shirt is carrying a gun BUT there is no

information on the reliability and veracity. HELD: unreasonable stop and friskbecause

a. There was NO suspicious activity (As in Adams, i.e., high crime area)

b. No corroboration to the information received from the callerc. Police argued the "gun exception" anytime there is any reason to believe a

person has a gun, there should be an automatic stop and frisk because tha

is based on safety. HOWEVERd. There is no justification for an automatic rule

4. Stop and Frisk by officer for Moving Violation (traffic stop): Mimsofficer pulls

over and tells him to get out of the car; frisks and finds weapon. HELD

reasonable stop and friska. To stop car, must have reasonable suspicion of a traffic violation

b. To search driver, must have reasonable suspicion of danger

c. Usually, stop and frisk can be justified in patrol stopsi. Once the stop is legal, a pat down generally follows

5. Encounters

a. If there is a reasonable belief that the person is not "free to leave" then astop has occurred and the Fourth Amendment has been triggered (totality

of the circumstances)

i. Mendenhall DEA asks to give them his ticket, they give itback, they ask to go to office and get consent to search his bags

HELD: mere encounter, not a stop because could leave at any

time

ii. Royer DEA asks

for ticket, does not give ticket back, tells

he is suspected for drugs, tells "come with us" they get consent

to search his bags. HELD: stop, not an encounter because actions

of officers had the practical effect of preventing from leaving

took his luggage, ticket, and license

b. INS cases

i. Factory sweeps

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1. Argument is that aliens do not have reasonable belief tha

they are free to leave BUT the court has held that they arefree to leave

ii. Working the busses

1. Same as abovec. Courts tend to favor police in this area

6. Profiling

a. Supplements experience to officers who do not have expertisegives

knowledge of the experts to nonexpertsb. May be used to justify a stop and frisk

vi. Search Incident to Arrest: Chimel v. Californiaarrest warrant for at home; afterarrest, they search his entire house for evidence of coin shop robbery. Held: invalid

search

1. Standard for search incident to arrest

a. After arrest, officer can search area within the arrestee's immediatephysical control (grab area and the person)

i. Grab areabroader than your person but narrower than your

"legal" control (e.g., not your legal property rights, etc but yourimmediate physical control)

1. Weapons2. Evidence

ii. Determined at the time of the arrest

1. Exofficer goes to arrest suspect, suspect reaches for

cabinet, before he reaches cabinet, officer arrests, cuffs, andtakes suspect away. Officer can return to the grab area and

search cabinet.

iii. Rationale

1. Officer safety AND2. Prevent destruction of evidence

2. Securing the premises

a. Permissible to search for safety NOTb. Production of evidence

3. Search incident to arrest applied to automobiles: (Bright-Line Rule) NY v. Belton

Four s stopped in car; officer orders everyone out after smelling pot; officer

searches interior of car, finds jacket, opens pocket, and finds cocaine. HELDReasonable search incident to arrest.

a. After arrest, officer can automatically search interior of car and any

containers thereini. Any part of the car that is reachable from the interior

1. Not the trunk

ii. Hatchbackas long as air can pass through

iii. Panelsas long as no damage is doneb. Containers

i. Any object capable of holding another object

c. If arrested in the car = search in the card. If arrested while about to get in car = probably can search in the car

e. If arrested while walking near the car = probably cannot search the car

4. Search incident to issuance of a ticket: Knowlesofficer pulls over and issues

ticket; then searches vehicle. Officer argues that automatic search after issuance

of ticket. HELD: no automatic search of interior because the justification for

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search incident to arrest (protect officer and prevent destruction of evidence)

doesn't apply to issuing traffic citationa. Police officers must arrest if they want to search the interior o

automobiles

5. Search after patrol stop: Whrenpatrol stop in a high crime area; officer follows

suspicious car; car violates traffic law; officer pulls over and finds cocaine.

argued that no reasonable officer would have pulled s over and therefore it was

a pretext to investigate s. HELD: search was reasonable

a. Once there is probable cause to believe a person has committed a movingviolation, officer can pull over the car and proceed from there

vii. Plain View Doctrine (Exception to the Warrant Requirement for Seizures)

1. Elements

a. Police must be in the area lawfully ANDb. Incriminating character of the evidence in plain view is "immediate"

i. In other words, police have probable cause that the evidence in

their plain view at the time of the seizure is evidence of a crime

2. Horton Police had probable cause for proceeds of jewelry robbery and weaponsused there; Warrant authorized seizure of proceeds only; officers knew they were

looking for weapons; did not find proceeds but found weapons. HELD: PlainView doctrine justified the seizure of the weapons regardless if the officers didnot inadvertently find the evidence

a. Arguments against Plain View Doctrine

i. Evidence must be inadvertently discoveredii. Otherwise, plain view will sanction general warrants because no

particularity in the warrant will be required AND the doctrine can

be manipulated

3. Hicks officer entered run-down apartment and saw a very expensive stereopicked up stereo; looked at serial #; called it in, found out it was stolen, and seized

it. HELD: illegal search of the stereo and thus the seizure of the store was fruit of

illegal search: suppressed.a. Police MUST have probable cause to size something in plain view

BEFORE it is seized, not after it is examined

4. Variations of the Plain View Doctrinea. Plain touch (Similar to Terry Stop and Frisk)

i. Police must be lawfully conducting a stop and frisk AND

ii. If PC is established during such frisk, Police may seize the articleUNLESS

iii. The frisk is grossly probing

1. There is a reasonable expectation of privacy in a Terry frisk

against the police continue to feel around on the person

once when no weapons are foundiv. Dickerson Police stopped and frisked ; police found no

weapons, but felt a "pea-shaped object" in the pocket; felt it somemore, pulled it out, and it was crack-cocaine. HELD: unlawful

b. Plain Smell?

i. Smelling Pot, opium, etc. leads to probable cause

c. Plain Hearing?i. Examplebomb ticking (9/11)

viii. Automobiles and Movables

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1. Automobile Exception: Elements (Carroll Doctrine)

a. Probable Cause to believe there is evidence of criminal activity in the carAND

b. Exigent circumstancesFederal: car is automatic exigencyPA: car i

not automaticmore exigency is requiredi. Car has mobilityevidence is on wheels

1. Threat of destruction of evidence and escape

ii. Carroll 1921, prohibitionsearch of a car in Michigan at a

roadblockcar is stopped based on prior contacts with theseparticular s. HELD: no warrant required

2. Search of automobile in police custody without a warrantChambersrobbery

of service station; employees tell police s had green shirt and trench coat and

description of car; officer pull over s shortly after, arrests, seizes car, takes to

station, then searched the whole car without a warrant. HELD: no warrantrequired

a. Since there is no difference, as far as privacy concerns go, between (1)

seizing the car and waiting for the warrant and (2) searching the inside of

the car without a warrant, no warrant is requiredb. Argument against (not the law)

i. No exigency because police already have custody AND there istime to get a warrant

ii. Where the car is on the road, there is exigency

iii. Where a car is in police custody, there is no exigency

iv. There IS a difference between stopping and waiting for the warranAND searching without a warrant

c. Some courts (probably state) require ACTUAL exigency

3. What is a vehicle subject to the exception?

a. Carsb. Airplanes

c. Motor Homes?

d. House Boats?4. Diminished expectation of PrivacyCarneymini-motor home; no warrant

a. People have a diminished expectation of privacy in their cars

i. Cars are open by nature (windows, etc.)ii. Cars are pervasively regulated

iii. Distinguished domestic living in the home with transportation: car

is used to transport; home is used to dwell and live5. Movables

a. Argument: Movables are subject to the same exception as cars because

they are movable BUT

b. The court has continuously held that the car exception does NOT apply to

movablesi. People have a higher expectation of privacy in movables than car

6. Movables within Automobiles: CONTAINERS

a. To search an automobile, police need probable cause

b. To search a container, police need probable cause and a warrant

i. Police can seize the container until a warrant is obtainedii. HOWEVER, what if a container is IN the car? Which rule

applies?

c. Test for containers within the car

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i. Police can search containers within the car without a warrant i

they have probable cause to believe that there is evidence in thecontainer

1. Police have probable cause to search the vehicle

2. Container is found within the interiora. Anywhere reachable from inside the car (not closed

trunk)

3. Container can be searched without a warrant if there is PC

to believe the container has evidenceii. Always look for reasonable execution of the warrant

1. exampleif police search interior of car for a brown paper

bag in which they have PC to believe evidence is containedtherein, if they find another suitcase and search that, it may

be an unreasonable search

Warrant

Requirement

Probable Cause Scope Timing

Search

Incident to

Arrest

No warrantrequired

Probable Cause toArrest

Interior of Car (Not in theTrunk)

At arrest or reasonable time

thereafterAutomobile

Exception

No Warrant Probable Cause to

Believe that Evidence

is in the Car

Entire car where evidence

could be found

Can be searched at a

later time than

search incident t

arrest

Inventory

Search

No Warrant

Required

No PC required:

permissible if policecarry out caretaking

functions

Entire Car where property

could be found pursuant toneutral and universal police

procedures

Any time afte

propertylawfully taken

ix. Exigent Circumstances1. Escape

a. Hot pursuiti. If suspect flees to home, police can enter as an exception to the

warrant requirement

1. search for the person AND2. any weapons in the home (safety issues)

b. Test is totality of the circumstances to determine reasonableness

2. Endanger (Public Safety)a. Police do not need a warrant to search/seize if protecting the public or

other officers from harm

i. Police need an adequate basis to justify the emergency situation1. examplesfirefighters rushing in to save a cat from

burning

3. Evidence (Usually Drugs)

a. Drugsi. Totality of the circumstances

1. Type of evidence

2. Mobility3. Who's the suspect

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a. Do police have prior knowledge of 's criminalityb. Crime Scene

i. Consent usually comes first (i.e., someone calls the police and lets

them in to the scene of the crime)

ii. Initial entry = no warrant requirement BUTiii. Police must get a warrant at some point

1. Usually, once the police conduct preliminary investigation

and everyone leaves, when police return, they need a

warrantc. Where Police Forbid Entry While They Obtain a Warrant

i. McArthur police did not allow entry into the 's home while

they obtained a warrant unless was with a police escort. Lasted

two hours. HELD: reasonable seizure of person and reasonable

constructive seizure of premises1. Reasonable because time and scope was limited

2. Souter (Concurring): police were actually more protective

because they obtained a warrant when all they could have

done was searched based on exigencyx. Administrative Searches

1. Former Test:a. Warrant ANDb. Reasonable Justification

2. Current Test

a. Totality of the circumstances ANDb. No warrant requirement

i. Special needs

ii. Purpose of the search

iii. Method of the search1. Reasonableness: balancing private and public interests

xi. Special Needs

1. Reasonable individualized suspicion test for search of student in schoola. Balance

i. School interests

ii. Student interests1. Both determine the reasonable execution of the search

a. Least intrusive means utilized

2. Balancing Test for Suspicionless drug testing (Skinner and Von Raab)a. Government Interests

b. Individual Privacy

i. Diminished expectation of privacy

ii. Assumption of risk of being subject to search

xii. Roadblocks1. Test: Primary purpose test

a. PURPOSE: Primarily enforcingpublic safety, not criminal law, thereforeno warrant and probable cause requirements

i. Balance government interests with private interests

ii. Reasonable Execution1. Police policy must take away discretion from police

officers

a. Examplecheck every third car

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2. Level of Intrusion

a. ExampleFrightening individuals with maskedpolice officers

b. Mixed motives are permitted (Merrit)

i. Example: sobriety checkpoint AND drug sniffing dogsc. Pretextual Roadblocks may not be permitted (Huguenin)

i. Sign stated that roadblock was one mile ahead but was actually on

the off ramp right after the sign

d. Drug checkpoint alone is not permitted because primary purpose is nopublic safety but enforcing criminal law (Edmond)

i. When enforcing criminal law, traditional 4th amendment principles

apply1. Distinguish between specific crimes and general crimes

a. Specific Crimefleeing felon, roadblock set up, no

warrant or PC required because protecting publicfrom potential danger

xiii. Inventory Searches

1. Testa. Property is lawfully taken into custody AND

b. Inventory search carried out for caretaking functions pursuant to neutraguidelines or universal practice

i. Protect police officersii. Protect owner of property

iii. Avoid police liability

2. Containersa. Same test as above

b. What if the container is seized without a warrantcan the police conduc

an inventory search?i. Argument against inventory search

1. Purpose of inventory search is not present

ii. Argument in favor of inventory search1. It does not make sense to search everything except the item

that includes the evidence

c. Check the purpose of the search

i. Caretaking function or search for evidence3. Inventory of Person

a. Empty pockets, etc. for caretaking purposes NOT search for evidence

xiv. Consent (exception to the warrant AND probable cause requirements for a search)]1. Test

a. Consent voluntarily given under the totality of the circumstances

i. Compare Waiver of Right with General Voluntariness

1. Waiver a. Knowingly and voluntarily relinquishing rights

(Bright-line rule)

ii. Factors to consider1. Warning

2. Officer conduct

3. Suspect's intelligence4. Custody

5. Tone of voice

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6. Suspect's belief police will not find anything

7. OTHERSb. No warning required

c. Must be reasonable

2. Issuesa. Consent Denied?

i. Find another exception

b. Threats?

i. Argumentthreat takes away suspect's optionc. Godfather Deal?

i. Officer makes a deal to obtain consent ("I'm gonna make an offer

he can't refuse Marlon Brando, The Godfather).d. Road Stop

i. No requirement that officer must tell detainee they are free to leave

3. Third Party Consentapply agency lawxv. Undercover Operations

1. Tape Recording while talked with officer

a. Consensual conversation, therefore no searchi. Since officer could testify about the conversation, the conversation

was consensual, and the tape recording merely preserves thaconversation, tape recording is not a search

2. Tape recording while talked with undercover officer

a. Consensual conversation, therefore no search

3. There is no search when a private party buys drugs from 's house and turns theevidence over to the DA

a. No state action AND consented anyway

4. Officer goes to buy drugs as a private person and turns over to DA

a. Arguably no state action because officer was acting in his private capacity

AND consented anyway

5. Officer goes to buy drugs as an undercover officer

a. State action BUT consented anyway6. Scope of consent limits undercover officer's ability to search

xvi. Wiretapping and Electronic Surveillance

1. Title IIIa. Warrant requirement

i. Officer needs approval from chief law enforcement officer before

seeking judicially issued warrant

b. Warrant will not issue to conduct wiretapping if there are other means ofinvestigation available

i. Wiretapping is usually last resort

g. Exclusionary Rulei. Introduction

1. Procedural Remedy rather than substantive remedy

2. Violation of Fourth Amendment results in excluding evidence obtained by theviolation

ii. History

1. Prior to Weeks, who had their Fourth Amendment rights violated had to suethe police for trespass, replevin, etc.

2. Weeks Reasons for the Exclusionary Rule

a. Deter officers from violating the Constitution16


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i. Prospective Deterrence

ii. NOT rooted in Constitution, only ENFORCEMENT ofConstitution

b. Government Should not benefit from its own wrongful conduct

i. Moral Justification based on policy from a practical standpointc. Where there's a right there is a remedy

d. Judicial Integrity

e. Administrability

i. Consistent Application of the Ruleiii. Although the Fourth Amendment applied to the federal government and the states, the

exclusionary rule applied ONLY to the federal government.

1. Why

a. should not avoid consequences of own illegal conduct

b. Practicalityprevents justice from being done in most extreme cases

c. FederalismTenth Amendmentd. Administrability

2. Wolf "Silver Platter Doctrine"

a. If the feds illegally searched and seized and obtained evidence, they wouldbe unable to use it in court.

b. As a result, the feds would hand over the case to the state on a "silve platter" and the state could then prosecute without exclusionary ruleapplicability

iv. Modern Law

1. Mapp v. Ohio extends the exclusionary rule to apply to the statesa. Deterrence

i. Constitution requires THIS remedy because it is the ONLY

remedy that prevents government from gaining by its own

misconductb. Judicial Integrity

i. Court should not be promoting illegality or sanctioning violations

of the Fourth Amendmentif no exclusionary rule, court would bedoing so

c. Invasion of Privacy

i. Court should not allow the continuing invasion of the FourthAmendment

ii. If prosecutors can use the evidence at trial, prosecutors

CONTINUE to invade the privacy of others AFTER the Fourth

Amendment has been violatediii. Exclusionary Rule requires the prosecution to give the property

back

2. Rule 12(b) Pretrial Motions in Criminal Procedure

a. Rule 12(b)(3) provides a motion to suppress evidence illegally obtainedh. Standing

i. Substantive Fourth Amendment Law1. TEST

a. Whether at issue had a legitimate expectation of privacy in the place

searched OR

b. Whether has an individual property OR possessory interest in the thing

seized

c. Legitimately on PremisesLimited Application

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i. If exercises CONTROL or AUTHORITY over the placesearched

1. Totality Test

a. Relationship between and owner

b. How much time spent at the place searched

c. Food, sleeping bag, pillow, other stuff brought to

the place searched

2. Rakas Rakas passenger in car. Officer stops car, searches car, finds and seizesbullets and shotgun, officer arrests suspects.

a. argues

i. He had a REOP in the carii. Target Theory

1. Target of the search automatically has standing

iii. Legitimately on the premises (car)b. HELD: no REOP in car b/c car by nature is diminished privacy

i. Target theory rejected

ii. Legitimately on premises test narrowly applied to the home AND

those who exercise CONTROL or AUTHORITY over the placesearched

1. was only a passenger, not operator of vehicle

iii. did not have standing for the stop and search of the car

iv. did have standing to challenge seizure of gun and shells BUT

1. Plain View Exception applies

a. Search was presumed legalb. Plain view allowed seizure

ii. Causation: Fruits of the Search

1. Introduction

a. Illegal search causes the seizure of itemsb. Illegal arrest causes the confession

i. If an arrest is illegal, the

is NOT excused from prosecution2. TEST

a. But-for the illegality, the evidence would not have been obtained AND

b. Illegality was the proximate cause of the evidence being obtained

i. Miranda warnings do NOT cure illegality (Brown)

ii. Independent free will of OR intervening event might break the

chain of causation

1. Look at facts of each case: time, place, type of crime, typeof defendant, Miranda warnings, etc.

c. Case Law

i. Brown unlawful arrest search incident to arrest officer

takes to station an hour later, confesses after Mirandawarnings seven hours later, again confesses after Miranda

warnings and is later convicted.

1. Prosecution argues that confessed under his own freewill because he was administered his Miranda warnings

2. argues "but for" the unlawful arrest, there would be noconfession

3. HELD: There was no intervening act that broke the chain

of causation: first statement given within 2 hours o

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unlawful arrest tainted second statement and thus was NOT

product of own free will

ii. Wong Sun implicated by Toy, who was illegally arrested

After seven days, an arraignment, and release on own

recognizance, confessed.

1. HELD: acted under his own free will

3. Exceptions: Even if a violation of the Fourth Amendment occurs:

a. Independent Source Doctrine

i. If the search and seizure was INDEPENDENT from any violationof the Fourth Amendment, the evidence is admissible

ii. Murray FBI surveillance of warehouse see truck leave

arrest drivers and passengers, search car, and find pot officers

go back to warehouse and search w/o warrant (illegal) and find pot

bails of pot but do not search further they get a warrant and use

the truck arrest as evidence of PC, NOT the w'less search1. HELD: evidence obtained was independent of the illega

search because

a. Warrant did not mention anything about the illegasearch

b. PC based on other facts

iii. Compare Madrid with Murrayevidence during grossly invasiveillegal search was used to establish probable cause for the search

warrant

1. HELD: evidence obtained was suppresseda. Grossly intrusive police behavior

b. Officers chose to use illegally obtained evidence in

warrant application

iv. Problems with Independent Source Doctrine1. Opens the door to confirmatory searches

a. Confirmatory search without a warrant will tel

police whether they need a warrant or not BUTb. In practice, police don't do this because they do no

try to violate the Fourth Amendment

b. Inevitable Discovery Doctrinei. If the evidence would have INEVITABLY been discovered absent

the violation of the Fourth Amendment, the evidence is admissible

1. Inevitably means inevitably (pretty damn sure) would have

been discovereda. Show by a preponderance of the evidence that the

officers were already searching for the evidence in

the area where the evidence was b. Must inevitably discover evidence that links the

suspect to the crime

ii. Nix v. Williams illegal confession discovery of dead body

police called off search and went to where said body was to

obtain evidence

1. HELD: police successful in showing by a preponderance othe evidence that the body would have inevitably been

discovered

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a. Police were already looking

b. Confession merely called off the searchc. What police were doing would have found the

body, and on the body, evidence linking to crime

i. Good Faithi. Evidence should not be suppressed IF

1. Officers reasonably rely on a seemingly valid warrant issued by a neutra

magistrate

2. Limitationa. Police cannot use false information in the warrant

b. Police must have probable cause, not just conclusory statements

ii. United States v. Leon Police investigate drug case and develop information about

police believed that there was probable cause; police go to magistrate and get warrant

magistrate found probable cause, but trial court suppressed because they found no

probable cause1. HELD: suppression was inappropriate

a. Weigh the costs and benefits of preventing the use of the evidence

obtained by officer who reasonably relies on neutral magistratei. Degree of government misconduct low

ii. Police acted reasonably, magistrate made mistakesiii. Deter ONLY police misconduct AND supervise magistrate

iii. Massachusetts v. Sheppard police used a form-warrant for controlled substances rather

than a warrant for a murder case; magistrate told police he would fix the warrant/cross

out information relating to controlled substances warrant allowed police to look forcontrolled substances EVEN THOUGH there was no probable cause for controlled

substances

1. HELD: evidence should not be suppressed because the officers could reasonably

rely on the magistrate AND the magistrate made the error of failing to cure thewarrant relating to controlled substances

iv. Some states reject the good faith exception in Leon

III. FIFTH AMENDMENT

a. Noperson shall be compelledin a criminal case to be a witnessagainst himself

i. "Person"1. Individual/Personal Right

2. One CANNOT rely on the Fifth Amendment for other people

a. Examplelawyer cannot claim fifth amendment for client3. Privilege does NOT extend to corporations, partnerships, or other types of lega

business entities EXCEPT

a. SOLE proprietorships

ii. "Compelled"

1. Voluntariness or involuntarinessiii. "Witness against himself"

1. Testimonial Evidence is Protected

a. Determined by whether the words spoken could punish for truth

falsity, or silence

b. Muniz police forced to talk and answer questions while he wasdrunk; at trial officer testified about content of answers and slurred speech

as proof that he was drunk

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i. HELD: fifth amendment was violated because manner of speech

and choice of words were used against

2. Non-testimonial evidence is NOT protected by the privilege

a. DNA, photo lineup, fingerprints, handwriting samples, blood, speech

comparisonsb. Voice/Speech Comparisons

i. Probative effect must be the comparison, NOT the actual words

spoken

iv. "Criminal Case" is broad1. Fifth Amendment applies in any proceeding that is potentially preliminary to a

future criminal case

a. Silence cannot be used as evidence against in a criminal case BUT

b. Silence CAN be used as evidence against in a CIVIL case

i. Fact finder can draw "any reasonable inference" from the 's

silence in a civil case

c. Why in seemingly non-criminal cases? Avoid the cruel trilemma: 's

only options ARE

i. Default in civil action by confessing

ii. Confession in civil action would incriminate of a crime OR

iii. If lies about it to avoid criminal culpability, will commit

perjury2. Examples

a. Criminal Trial

b. Grand Jury Investigationc. Asset forfeitures

i. Civil or criminal (under the statute)

3. Other Examples where not clearly a criminal casea. Investigatory Congressional Hearings

b. Civil action where criminal case is pending on same facts

4. Where no criminal case can result

a. Either because past case ORb. Statute of limitations has lapsed OR

c. acquitted OR

d. Immunity (See below)v. "Against Himself"

1. Immunitytakes away Fifth Amendment Privilege because they will no longer

be testifying "against themselves"a. Transactional Immunity

i. Cannot be prosecuted for the alleged crime EVER

b. Use or Derivative Immunity

i. CAN be prosecuted for the alleged crime BUT the compelledtestimony CANNOT be used against them

b. Confessions and Due Process

i. Due Process Clause of Fifth Amendment used to exclude involuntary confessions

ii. TEST: Whether, under the Totality of the Circumstances, the voluntarily confessed

1. Spano immigrant with junior high school education interrogated for many

hours, some interrogation by police officer friend; friend played pity on to

make him confess; police did not allow to see his lawyer; then gave

statement

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a. HELD: statement was involuntary

iii. False Documentary Evidence is per se impermissibleiv. Promises of Consideration by Police

1. See if police have authority to give leniency (which only prosecutors can)

2. Reasonableness of leniencyv. Police misconduct controls, not the suspect's state of mind

1. Connelly heard voices that told suspect to confess; police did nothing

coercive

a. HELD: state action at issue because police must coerce suspectc. Self-Incrimination Clause in Police Interrogations: Miranda v. Arizona

i. Introduction1. Police must advise a suspect of his rights

a. Right to remain silent

i. Fifth amendment self-incrimination clause

b. Anything said can and will be used against you in courti. Not a right, but a law of evidence

ii. States consequences of failing to remain silent

c. Right to the presence of an attorney during questioningd. Right to have an attorney appointed if you cannot afford one

i. First three are MANDATORYii. If police KNOW you can afford an attorney, they need not ask you

2. When Given

a. Custodial Interrogation

3. To Whoma. EVERYONE

4. Purpose of administering Miranda Warnings

a. Advise every suspect of rights

b. Assure waiver of rights is voluntaryc. Put every suspect on a level playing field with the police, since

interrogation is an inherently coercive atmosphere

ii. Miranda warnings MUST be given before "custodial interrogations"1. Custody TEST:

a. Whether, under the totality of the circumstances, the suspect has been

deprived of his freedom of action in any significant wayi. Where person being questioned believes that he or she is free to

leave, there is NO "custodial" interrogation (Stansbury)

b. Arrest is generally custody

c. Interrogation at the police station is generally custody UNLESS they arevoluntarily there and can leave at any time (see above)

d. Terry Stops are NOT custody

e. Case law

i. Orosco was in custody where arrested and questioned in homeby four officers at 4:00 a.m. in the morning

ii. Beckwith was NOT in custody where IRS agents invited intohome at 8:00 and questioned at the dinner table

iii. Matthiason was NOT in custody where questioned in police

station since voluntarily went to station, informed that he wasnot under arrest, and left station after he made a confession

iv.

2. Interrogation TEST:

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a. Express questioning

i. Even if direct question, if it's an exclamation it might not beinterrogation (example: what the hell's going on here!?) OR

b. Functional equivalent of express questioning

i. Any words and/or police actionsii. Police should know

iii. Is reasonably likely to elicit an incriminating response from THIS

suspect

1. Intention of police not dispositive, but relevant2. Use facts about THIS suspect and compare to what police

should know

c. Case Law

i. Innis No "interrogation" where shotgun killer arrested; asks to

see lawyer; officers talk to each other about how awful it would be

if child finds missing shotgun; then told them where to find guniii. Exceptions to Miranda

1. Public Safety/Emergency Exception

a. TEST: Totality of the Circumstances

i. Danger to the public safety outweighs the 's Fifth Amendment

rightii. More compulsion is generally tolerated in such circumstances

although not freely admitted by the court

b. NY v. Quarles : officer says "where's the gun" immediately after an arrest

no warnings given, found gun and used in court

i. HELD: officer did not need to administer Miranda even though

was in custody (pointed gun at and was arrested) AND

interrogated (express question: where's the gun?)

c. Carillo officer says "any weapons or needles on you?" and responds"I don't use drugs, I sell them." Apart from being a complete knucklehead

was arrested and convicted.

i. HELD: public safety exception applied because officer safety atissue

iv. Waiver of Miranda Rights

1. TEST: Knowing AND voluntarily waiver of rightsa. Knowing

i. Full awareness of nature of the right AND consequences o

abandoning such rightb. Voluntary

i. Product of a free and deliberate choice

c. FOCUS is on the SUSPECTd. Silence is NOT enough to constitute a valid waiver

2. Case Law

a. Connecticut v. Barrett waiver valid where would not give written

confession but would give oral confession

b. Changing the Subject waiver valid if agrees to speak about X but not

about Y so long as police ask about X only

c. Elstad waiver valid even though police obtained defective confession bulater obtained valid confession

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d. Moran waiver valid even though lawyer was trying to reach , but

did not know lawyer was trying to reach him

i. Unless the client asks for an attorney, attorney has no right of

access to his client

3. Waiver AFTER Invocation of Miranda Rights

a. TEST: police must "scrupulously honor" 's invocation of Miranda rights

under the totality of the circumstances

i. Time

ii. New Set of Warningsiii. Repeated Attempts (did you changer your mind yet?)

b. When Right to Silence is Invoked

i. Police may continue to interrogate UNTIL makes an express

unequivocal statement that the right to silence is being invoked

c. When Right to Counsel is Invoked

i. Once right to attorney is invoked, police MUST stop interrogationUNLESS

1. Communication is initiated by the suspect

ii. WHY1. Invoking the right to counsel does not make counse

magically appear at that instantattorney must be

contacted, arrive, and participate while is questions2. Right to Counsel is a higher right than the right to remain

silent

IV. IDENTIFICATIONS

a. Right to Counsel for Identifications

i. Right to counsel attaches when formal charges are brought

ii. A valid police lineup after formal charges have been brought against the accused requires

the presence and participation of accused's counsel (Bright-Line)1. Lineups are a "critical stage" of the proceedings

2. Minimizes the chance for "suggestive" lineups

iii. Since the Sixth Amendment does NOT attach until formal charges have been brought, thecourt conducts a balancing test to determine whether the identification was unreasonably

suggestive (Totality Test)

1. Balance the benefit to the individual in having counsel present WITH2. Burden on society to have counsel present at this identification

a. Examples

i. Practical mattersare we going to have counsel for every street ID

ii. Contrast affirmative ID (victim walking up steps in police station

sees suspect, and says, "That's him!") WITH police gatheringmany individuals and asking victim to choose one (more

suggestive)iii. Witnesses congregating and reaching a conclusion together rather

than individually

iv. Immediacy of circumstancesonly victim about to dieiv. Permissible Suggestiveness

1. Early Identification not unreasonable under certain circumstances

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a. Rationaleinnocent suspect has as much to gain from an early ID as his

guilty counterpart (exoneration while fresh in witness' mind)2. Independent Source

a. IF witness is able to ID WITHOUT any suggestiveness but from anindependent ability to identify the suspect, the evidence of identification isadmissible

3. Photographic Identification

a. Attorney is NEVER required at a photographic identification

i. Rationalephotos are trustworthy IF they are NOT undulysuggestive

V. SIXTH AMENDMENT

a. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counselfor the defense

i. The accused in felony cases have a fundamental right to counsel (Gideon v. Wainwright)

ii. The accused in misdemeanor cases have the right to counsel (Argersinger) IF benefits ofproviding counsel outweigh costs to society of providing attorney

iii. In other cases, accused has right to an attorney IF

1. Liberty is at stake (imprisonment) BUT NOT2. If money is at stake (fine)

a. PROBLEMi. Trial judge has two choices

1. Appoint counsel and be able to sentence to prison after

trial OR

2. Do not appoint counsel and be barred from issuing a prisonsentence

b. Scope of the Right to Counsel

i. Right to Counsel attaches at all "critical stages" of the proceedings

1. Part of the prosecution in which the right to an attorney attaches2. Interests of the accused will be harmed without presence of an attorney

a. Formal charges conclusion of trial (generally)

ii. Appeals1. Right to counsel attaches to the appeals "as of right" (after conviction)

2. Right to counsel does NOT attach to discretionary appeals (writ to Supreme

Court)

iii. Sentencing1. Right to counsel attaches ONLY IF issues of sentencing are in dispute

iv. Parole/Probation

1. Generally considered administrative proceedings, since the trial has concluded2. HOWEVER, right to counsel will attach in certain cases where the issues

presented require the presence and participation of an attorney

v. Juvenile Cases

1. Right to counsel attaches under a special circumstances analysisminors areunable to represent themselves

vi. Right to Experts

1. If the case requires additional resources, such as experts, to satisfy therequirements for competent representation, the Constitution requires it as well

c. Sixth Amendment also requires the "effective assistance of counsel"

i. Reasonably effective assistance1. Objective reasonableness AND

2. Prejudice to the defendant

Documents

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