BACKGROUNDCrminal Procedure – Cheh - Fall 2011CIVIL v. CRIM:

Determinant = leg definition o Courts defer unless major showing that proceedings clearly not what leg said

Req’s “clearest proof” that statute “so punitive in purpose or effect” that couldn’t possibly be civil (Hendricks (KS))

Far greater protection for crim than civilo Ex post facto, 5A, 6A, etc. only apply to crim

CRIM PRO MODELS: Crime Control:

o Goal = efficient investigation & prosecutiono Priority = efficient crime prevention

Few formal procedures, reviews, etc. Lots of latitude for prosecutors & cops to determine guilt Ideal resolution = guilty plea

o Presumes factual guilt Due Process:

o Priority = reliability & error avoidance Formal, public, adjudicative adversary fact-finding before impartial

tribunal

GENERAL: Rules generally apply retroactively only to cases still in the system (i.e., haven’t been

finally decided)o NOT to cases alive only on indirect review (on habeas, e.g.)

4 th AMENDMENT GENERAL: (30)

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Verdugo-Urquidez – US cops searched D’s homes in MX w/o warranto 4A doesn’t apply b/c non-resident aliens aren’t “the people,” at least for

searches outside USo Brennan: Unfair to hold D liable for violating fed law, but deny

accompanying protections Pretext:

o Irrelevanto Whren – Cops stopped suspicious car for traffic violation, but really wanted

to see if drug dealers If RS to stop or PC to search & seize, cops’ subjective intent =

irrelevant Program-wide pretextual inventory/admin searches can be

problematic, but that’s not what happened here Ibarra (9C) – Cops had dog waiting where pulled D over for speeding

Clearly pretextual, but no 4A violation under Whren

WARRANT REQUIREMENT: (84) Functions:

o PC = threshold of proof to protect against unjustified searches & seizureso Oath/affirmation = accountability & establishes public record of pre-search

knowledgeo Specificity = protects against arbitrary searches

At least the location & thing(s) looking foro Magistrate = neutrality prevents errors & ensure reasonablenesso Broadly, reduces perception of unlawful/intrusive conduct

Johnson – CI said opium in hotel & could smell in hall; Cops followed smell to room, knock-&-announce, shuffling, then D opened door & let cops in; Cops told D he was under arrest & said would search room

o No PC to arrest until entered room, so search violated 4A D’s consent = submission to asserted authority, not waiver of right

Could’ve gotten warrant, but didn’t No warrantless searches unless no time for delay b/c flight risk,

transient search location (car, e.g.), evidence destruction/removal (fumes are uncapturable)

Griffin – If PC not req’d for entry (like admin searches), warrant can’t be req’d either b/c it must be based on PC

Obtaining Warrant: (90)o PC = “fair probability”

To search: Substantial basis for finding fair probability under totality of circumstances (Gates)

Important Considerations for Tips: Whether described future acts of 3Ps (Draper, Gates) Whether cops corroborated at least some details (Gates, White)

o Draper – Tip accurately describing D & predicting when would arrive by train carrying heroin in future = PC b/c description, arrival, etc. can be verified

o Aguilar-Spinelli Test: Affidavit must provide sufficient facts to assess (1) Validity of CI’s opinion & (2) CI’s

reliability

If falls short, consider whether CI tip + independent corroboration = as trustworthy as tip that would pass

Aguilar w/o corroboration

I.e., more than bald assertion of reliability & some indication about why CI’s assertions are legit

REJECTED IN GATES

o Gates (US 1983) – Anonymous letter alleging Ds were drug dealers who bought in FL, detailing their m.o., what was in trunk, that drugs in basement, who Ds were, and where they lived; Cops verified name & addy, followed to FL & similar m.o., got warrant w/ affidavit & letter, found everything alleged

Rejects Spinelli 2-prong test & uses totality of circumstances PC only if magistrate has “substantial basis” for finding “fair

probability” under “totality of circumstances” More than affiant’s ipse dixit

Plenty of evidence supporting PC here, including future acts of 3Ps White: Don’t overrule Aguilar-Spinelli test of credibility & reliability Brennan: PC req’s assurance info obtained reliably by credible person Stevens: Letter lacked indicia of credibility & reliability b/c got

several details wrong; Magistrate didn’t know about suspicious return trip until after signed warrant

GROUNDS FOR STOP – REASONABLE SUSPICION: (232) Based on Terry, but has broadened beyond its facts & holding Very fact-based determination Definition:

o Particularized & objective basis for suspicion, under totality of circumstances (Cortez)

“Fair possibility ,” whereas PC is “fair probability” Cops’ individual subjective intent = irrelevant (Whren, Ibarra)

o Important Considerations: Reliability of CI tip (White, JL, Heard) Crime in area (Arvizu, Trullo, Barron-Cabrera, Wardlow)

Flight in high-crime area = per se RS (Wardlow) Cops’ expertise (Arvizu, Trullo) How rote cop’s description sounds (Rodriguez) Investigating felony (Hensley) Anonymous tip? (see below)

o Insufficient: Mere presence in high-crime area (Wardlow) License plate from drug source state (Beck) Race alone (Manzo-Jurado, Uber, Weaver)

Anonymous Tips: o Test:

Gates applies, focusing on indicia of reliability: Predicting future acts (White, Gates) Familiarity w/ CI (JL, Adams) Whether tipped info indicates knowledge of crim activity (JL)

Corroboration by cops (JL, White) Face-to-face tip (Heard)

Even if not Gates , RS if: Imminent threat to safety (Wheat, Hicks) Emergency (Hicks)

o White – Tip that D leaving apartment in specific car, driving to motel w/ case full of coke; Cops saw car leave & head in motel direction, but didn’t see case; Stopped & searched; Found case in trunk after D consented to search

Close, but RS under Gates b/c CI predicted future acts & cops corroborated most details

Stevens: Only corroborated info = completely innocent & consistent w/ commuting

o JL – Anon tip that black guy in plaid had gun at bus stop No RS b/c less indicia of reliability than in White

No basis in cops’ own observations Unlike Adams, unknown informant, w/o rep & potential

responsibility Accurate description of person shows no knowledge of crim

activity No firearm exception b/c slippery slope

Maybe sometimes so dangerous that can avoid Terry (bomb, diminished privacy expectation, e.g.), but not here

Kennedy: Could be other indicia of reliability, like similar-sounding voices, risking anonymity

o Wheat (8C) – Tip of erratic/drunk driving = sufficient RS to stop b/c imminent threat to public safety

Unlike gun possession, constant threato Hicks (7C) – Tip of guy beating up woman; Cops responded, stopped D &

found gun Permissible b/c emergency, risk to public safety, & undermining

usefulness of 911 Can’t delay 911 response times by assessing credibility

o Heard (11C) – Woman got in argument w/ guy at train station; Told cop D had gun; Cop stopped D & found gun, but woman gone when he went back

Face-to-face anon tip = inherently more reliable than phone b/c can observe demeanor & credibility

Quantum of Suspicion: o Winsor (9C) – Illegal to search 40 hotel rooms 1-by-1 b/c 1/40 is too small to

support PC, though sufficient for RS Maybe PC by end b/c odds increase

Car Stops: o Arvizu (9C) – Hispanics in van on backroads avoiding BP, kids waiving

awkwardly w/ high knees, etc. RS under totality of circumstances

o Barron-Cabrera (10C) – RS for Ryder truck on rarely-travelled road & 9/11 of second to see driver & passenger when driving in opposite direction

Defer to trial court re: credibility of cops & Dso Trullo (1C) – Cops saw suspicious car in “Combat Zone”; Stopped & ordered

driver out when car took guy 2 blocks, then let him out to walk back Barely RS b/c high crime area, cops’ expertise, & suspicious actions Bownes: Where must driver let passenger out to avoid RS?

o Rodriguez (9C) – Ford Ranchero, typical description of activities + car known to have seat to conceal illegals

NO RS b/c cops’ descriptions all sound the same & fits 100s/1000s of law-abiding citizens

o Hensley – Terry applies to investigating completed felonies, too One cop/dptmt can make stop if another asks for help

Profiles: o Courts find use of profiles irrelevant b/c it depends on totality of

circumstances anyway Determination is always case-by-case, so irrelevant whether facts

happen to match profileo Berry (5C) – Ok to use drug courier profiles b/c just admin tools

Presence of each characteristic has no significance re: RS Match doesn’t automatically establish RS

o Sokolow (US) – DEA stopped D based on profile RS b/c focus is on overall degree of suspicion, not whether each fact is

innocent/guilty Stricter rule would hamper cops Marshall: Reflexive profile use risks catching innocent citizens

o Beck (8C) – Cop stopped CA car in AR b/c CA = drug source (considered 6 states drug sources)

No RS – there are millions of law-abiding citizens that fit thiso Wardlow (US) – Mere flight = sufficient for RS in high crime areas

Mere presence = insufficient, but can be one factor Consistent w/ Royer b/c unprovoked flight ≠ merely going about own

business or refusing to cooperate Terry accepts stopping innocent people sometimes Stevens: Lots of legit reasons for running – per se rule doesn’t make

any sense Race:

o Ok to use for descriptions – this is just a question of whether anomalous presence of one race is sufficient for RS

o Race alone/primarily ≠ RS Must just be one factor

o Manzo-Jurado (9C) – No RS to see 6 unfamiliar Hispanics at high school football game not mingling

No rational inference of immigration status from football game attendance

o Uber (MN) – No RS where white guy from burbs was seen in inner-city neighborhood known for prostitution in madrugada

o Weaver (8C) – Cops stopped only black guy on LA-KC flight on suspicion of drug trafficking b/c black LA gangs flooding KC w/ coke

RS & no impermissible discrimination b/c race only one factor considered

CONSENT: Requirements:

o (1) Capacity to give it & Must be really significant incapacity (extremely wasted, drugged,

young, retarded, etc.)o (2) Voluntarily given, under totality of circumstances

Aka, no coercion Antecedent illegal invasion that caused consent generally invalidates it

Burden on gov to prove it (Bumper, Schneckloth) Considerations:

Knowledge of rights (Schneckloth, Drayton, Watson, Robinette, Gonzalez-Basulto)

Voluntariness of custody (Gonzalez-Basulto, Mendenhall, Royer)

Coerciveness of procedures (Gonzalez-Basulto, Mendenhall, Royer)

Honest promises ≠ coercion (Duran) D’s cooperation (Gonzalez-Basulto, Mendenhall) D’s education & IQ (Gonzalez-Basulto) D’s believe evidence will be found (Gonzalez-Basulto)

Insufficient: Acquiescence to claimed authority (Bumper)

Schneckloth – Gov need not prove D’s knowledge of right to refuse to consent b/c test is voluntary consent, not waiver

Consider totality of circumstances, & knowledge of right is just one factor

Serious impediment to req cops to inform of right to refuse Drayton – Applies Schneckloth to bus searches Watson – No need to warn re: consents or prove D knew could

refuse were consent given on public street after arrested Robinette – Applies Schneckloth to motorists after initial stop

ends Bumper – Burden on gov to prove free & voluntary consent

Req’d more than mere acquiescence to claimed authority Mendenhall – Voluntary consent in airport when cops returned ID &

license, politely asked all questions & told D that could refuse Gonzalez-Basulto (5C) – Factors to consider:

(1) Voluntariness of D’s custodial status (2) Coerciveness of police procedures (3) D’s cooperation w/ cops

(4) D’s awareness of right to refuse (5) D’s education & intelligence (6) D’s belief that no evidence will be found

Duran (7C) – D consented b/c cops said would get warrant if she didn’t

No coercion b/c cops really did have sufficient PC Maybe if it was an empty threat

o Prescott (9C) – Can’t use refusal as evidence against Do Price (7C) – Totality of circumstances “sure” in response to question of

whether D minded if cop looked in car was consent Didn’t complain during search

o Cops routinely win the he-said-she-said credibility battle Heath (8C) – Tough to overturn trial court’s credibility determination

unless extrinsic evidence to contradict story or so implausible that cannot be believed

3P: o 3P consent suffices if 3P has apparent authority

Reasonableness standard – cop must inquire further if circumstances so require (Dearing)

Present & objecting Co-T overrides 3P consent (Randolph) Cops can avoid this intentionally as long as don’t cause Co-T’s

absence (Groves)o Frazier – Joint bag user’s consent = sufficient b/c assumption of risk &

ridiculous to inquire into thato LL/T

LL can consent to common areas, but not individual apartments Co-T can consent to shared areas, but not private

Matlock – Housemate has actual authority to consent b/c assumption of risk

Rodriguez – GF consented & let cops in, but no longer lived there; Cops didn’t know

Consent = valid if reasonable to believe 3P has authority

If circumstances more ambiguous, cops must ask if still live there

Dearing (9C) – Live-in babysitter lacks apparent authority to consent to search of employer’s bedroom

Cop should’ve asked about extent of sitter’s authorized access

Randolph – Co-T’s consent = insufficient if present & objecting T refuses, unless exigency

Roberts: Why does T win? Why not Co-T? Groves (7C) – Ok for cops to intentionally wait until D leaves, then

gain Co-T’s consent b/c don’t play active role in securing absence Scope:

o Presumed limit = what reasonable person would understand search to entail Consenter can further limit scope of consent anyway he wants

Ambiguity is resolved against consenter Destructive searches exceed scope (Jimeno) Unreasonable to touch genitals in public (Blake) Reasonable to open paper bag in car after general consent to car search

(Jimeno) Unreasonable to search computer when looking for assault evidence

(Turner)o Blake (11C) – D consented to search of his person in concourse; Cop touched

his genitals & felt drugs Exceeds scope of consent b/c reasonable individual doesn’t understand

public search of person to include touching genitalso Jimeno – Consent to search car includes consent to search paper bag therein if

objectively reasonable to interpret consent like that Opening paper bag = reasonable, unlike busting open locked briefcase Marshall: General consent is ambiguous at best, so cops should

specifically request permission to search “car & all contents/containers”

o Turner (1C) – D consented to allow cops to search home for signs that stabbing suspect there or left evidence of presence; Cop looked through computer files & found child porn

Exceeds scope b/c reasonable person would’ve only understood that cops looking where intruder could’ve hastily disposed of physical evidence of assault

W/drawal:

o Consenter can w/draw at any point before cop gains RS/PC Must be clear & explicit

o Carter (DCC) – Can’t use w/drawal itself as basis for RS Can gain RS if manner of w/drawal = suspicious

EXCLUSIONARY RULE: No one likes the rule, but it still applies Offensive to crime control model b/c focuses on cops, not D’s guilt All evidence discovered as direct result of unconstitutional search/seizure =

inadmissible (Mapp)o Balance costs v. benefits to apply:

Benefits: Deterrence Costs: Setting guilty free; Loss of system legitimacy; Alleged increase

in crime rate Limits:

o Only applies to case-in-chief in crim trials Ok to use in grand jury Ok to use for impeachment

o Must have standing to challengeo Doesn’t apply if cops reasonably relied on legislation (Krull) or apparently

valid warrant (Leon, Sheppard) Leon & Sheppard – Objectively good faith reliance on apparently

valid warrant = sufficient to admit evidence in case-in-chief b/c nothing to deter (exclusion doesn’t punish magistrate who issued faulty warrant)

Not req’d by Const (just enforcement of 4A), so do cost/benefit analysis

Brennan: Part of 4A is exclusion of illegally obtained evidence b/c wrapped up in getting evidence in the first place; Court exaggerates costs b/c only lost prosecutions you never should’ve had & artificially diminishes benefits, which exceed mere deterrence

Should simply use better systemic training for police departments

Krull – Cops searched pursuant to state statute allowing warrantless search; Statute later declared unconstitutional

Admissible b/c cops acted objectively reasonably & nothing to deter

O’Connor: Incentivizes promulgating unconstitutional lawso Doesn’t apply to good faith clerical errors (Evans, Herring)

Evans – Court clerks failed to update system w/ quashed warrant, but nothing to deter by excluding

Critical test under Leon = deterrability Ginsburg: Computers are too new & widespread to issue broad

rule yet Herring – Police clerk failed to note recalled warrant

Good faith exception applies b/c unintentional & innocent conduct

No indication of widespread errors Ginsburg: Exclusion is the only effective remedy for 4A

violations No routine practice of updating database here, so

should encourage that Breyer: Evans distinguished judicial error from police, & we

should follow that Standing:

o Standing only if have legit expectation of privacy in area searched (Rakas, Salvucci)

Ownership alone gives standing to object to seizure, but not to search unless legit expectation of privacy (Powell)

Legit Expectations For: Overnight guests (Olson, Carter) Users of another’s car w/ keys & permission (Lopez)

No Legit Expectations For: Business transactions (Carter) Visitors to home (Rawlings) Car passengers (Rakas, Carter) Knowing possessors of stolen car (Tropiano) Absent car owner

Can object to seizure, but not search (Powell) Driver in violation of rental agreement (Boruff)

Owner who disassociates self from searched object (Boruff, Mangum)

o Rakas – Passengers who don’t have 4A privacy interest in car have no standing to challenge search of it

Burden on D to prove standing Jones just means person can have enforceable privacy right in place

other than own home White: Jones was an effective bright-line rule & this eliminates

deterrence of car searches when multiple occupants Salvucci – Jones automatic standing rule is overruled – must have

legit expectation of privacy in area searched Possession of seized good = insufficient to demonstrate legit

expectation of privacy in searched area D can constructively possess good, but not be subjected to 4A

deprivationo Rawlings – Visitor to 3P’s home lacks standing b/c no legit expectation of

privacy in that home Focus on legit expectation of privacy, not ownership

o Payner – Court can’t exclude otherwise admissible evidence under supervisory power merely b/c unlawfully seized from 3P not before court

o Carter – No legit expectation of privacy when present in apt for short time to bag coke & no other connection

Unlike Olson, not overnight guests Ginsburg: Should deter cops from searching invitees

o Carter (6C) – Suspicious van in Memphis, different stories for driver & passenger

Passenger can challenge seizure of person, but not search of car b/c would’ve been discovered even if he was let go

Shaving kit & change of clothes in front of van ≠ legit privacy expectation in back

o Lopez (CDCA) – Ds w/ keys, permission, & actual use of truck have standing to challenge search of it

o Tropiano (2C) – No legit expectation of privacy in car if know it’s stoleno Powell (7C) – Absent car owner can object to search, but not stop

o Boruff (5C) – D bought truck, but put everything in buddy’s name; Got GF to rent car in own name w/ usual rental agreement; Brought weed back from MX & tried to distract BP from truck

No standing to challenge truck search b/c actively avoided any association w/ it

No standing to challenge car search b/c rental agreement gave GF the only authority

o Mangum (DCC) – D abandoned prop & waived legit privacy right by denying ownership

o Padilla (US) – No automatic right for co-conspirator to challenge search/seizure

Causation & Derivative Evidence: o Rule:

Statements caused by illegal search/seizure = inadmissible unless result of intervening & independent act of free will (Brown, Wong Sun)

Factors: (Brown) (1) Time period (2) Miranda warnings

Don’t necessarily break connection, but can (Brown, Taylor, Dunaway)

(3) Flagrancy of violation (4) Intervening circumstances

Voluntary live testimony almost always intervenes (Ceccolini)

(5) Type of violation Payton violation doesn’t merit exclusion (Harris) Knock-&-announce violation doesn’t merit exclusion (Hudson)

o Brown – Illegal action must be prox cause Miranda warnings don’t necessarily break connection Wong Sun applies: Statement must be result of intervening &

independent act of free will for admissibility, based on factors: (1) Time period (2) Miranda warnings (3) Flagrancy of violation (4) Intervening circumstances

(5) Type of violation Illegal arrest triggers this

Dunaway – Exclude post-Miranda statements after arrest w/o PC Taylor – Exclude statements after 3 Miranda warnings b/c illegal

arrest & continuing event Kaupp – Exclude statements b/c illegal arrest & no intervening cause Rawlings – Cops illegally detained D for 45 min while cops got search

warrant; D made statement when cops found evidence No suppression b/c congenial atmosphere, spontaneous

statements in reaction to discovery of evidence, no flagrant misconduct, voluntary statements

Hernandez (5C) – Cops illegally manipulated bag to feel hard package, then got D’s voluntary consent

Exclude b/c no break in chain of causation, based on (1) temporal proximity, (2) intervening circumstances, (3) purpose/flagrancy of misconduct

Becker (8C) – Voluntary consent severs chain of causation if removed in time & no flagrant misconduct

o Harris – Payton violation doesn’t merit exclusion b/c once D removed from house, violation & harm are done

Marshall: Incentive to violate Payton Beltran (1C) – Harris application depends on timing of items’ seizure,

D’s motivation for speakingo Hudson – Knock-&-announce violation doesn’t merit exclusion b/c great

social costs & minor intrusion unrelated to evidence seizure Must use civil remedy Kennedy: Majority is right as long as no demonstrated pattern of the

practice Breyer: Incentive to violate knock-&-announce

o Ceccolini – Cop discovered betting slips by illegally opening envelope; FBI questioned lady in shop w/o mentioning slips; Lady testified at trial

Witness volunteering live testimony almost always = intervening circumstance

Costs of exclusion outweigh benefits hereo Independent Source Doctrine:

Rationale: Not actually doing anything w/ the illegally-obtained info/evidence

Murray – Cops illegally entered warehouse & confirmed that bales there; Left & got warrant w/o relying on observations

ISD doesn’t exclude evidence if cops would’ve sought warrant even w/o prior entry

Gov shouldn’t gain from unlawful searches, but also shouldn’t lose

Marshall: ISD = invitation to bad behavior b/c can illegally discover info to confirm suspicions, then proceed

o Inevitable Discovery Doctrine: Req’s that actually would have discovered it, not just could have

(Nix/Brewer, Feldhacker (8C), Allen (4C), Brown (7C)) Nix/Brewer – IDD applies b/c search party would’ve found body in

same condition & location as D led them to IDD not limited to good faith – gov must prove by

preponderance of evidence that would’ve discovered via independent legal means

Brennan: IDD exists, but gov must prove by clear & convincing evidence

Andrade (9C) – Coke in arrestee’s bag = admissible b/c DEA inventory routine would’ve inevitably discovered it

But see $639,558 (DCC) – No IDD for inventory searches b/c would remove incentive for warrant

Brown (7C) – Inevitability = more than PC; Also req’s chain of events that would’ve led to warrant or other independent justification for search

Allen (4C) – Cop’s claim that would’ve called K9 unit & dog would’ve alerted to drugs in bag = too speculative b/c no indication dog ever called for that

SEARCHESDEFINED:

4A Protection From Search If: (1) State action + (2) Subjective expectation of privacy that (3) society considers reasonable (Katz Harlan)

o Katz – FBI bugged exterior of phonebooth & used bet recordings at trial, claiming ok b/c no physical penetration & reasonable manner

Physical penetration standard is overruled & mere reasonableness doesn’t fulfill warrant req

Lacks warrant protection procedures D entitled to assume words spoken on phone will be private Harlan: (1) Subjective expectation of privacy (2) considered

reasonable by societal standards Phone book fits standard when occupied, door closed, fare paid

Black: Founders knew about eavesdropping & didn’t mention it in 4Ao Hicks – Even the most cursory & minimally intrusive search req’s PC if meets

above standardso Winsor (9C) – Cops chased bank robbers to hotel, but didn’t know which

room; Knocked on doors until D opened & recognized Impermissible search w/o PC under Hicks

Only RS to believe robbers in any particular room – PC gained only when D opened door

No reasonable expectation of privacy for: o Abandoned prop (Boruff, Mangum)o Open fields

Anything beyond curtilage, regardless of how many signs, fences etc. Based on assumption of risk & 4A focus on the home Oliver – No 4A protection outside home except curtilage b/c no legit

expectation of privacy Fences & “No Trespassing” signs don’t bar public form

viewing 4A = unrelated to state law of trespass Marshall: Phone booths don’t fit 4A any better than open

fields, but they get protection Lots of private activities in open fields

Dunn – Curtilage depends on (1) proximity to home, (2) inclusion in enclosure surrounding home, (3) nature of use, & (4) steps taken to protect from observation

Entry into barn may have been impermissible, but not approaching & looking in b/c surrounded by fences that don’t include home

Scalia: Significant fact here is that barn not used for intimate activities of home

o Things transferred to 3Ps Assumption of risk False friends

White – Plurality: No reasonable expectation of privacy in convos w/ friends b/c assumption of risk

Douglas: Citizens shouldn’t live in fear that every word might be transmitted/recorded/publicized

Harlan: Assumption of risk = inadequate guideo Should consider whether imposing risks

warrantless listening-in = desirable Bank records

Shultz – No 4A violation to req banks to report transactions over $10k b/c no legit privacy expectation

Douglas: Bank accounts mirror entire life Marshall: Disclosing info to bank solely for purposes of

confidential customer-bank relationship ≠ waiver of privacy rights

Phone numbers Smith – No legit expectation of privacy in phone numbers

voluntarily turned over to phone company Stewart: Katz protects phone convos, so must protect

numbers, tooo Disclosure of info for limited business purposes

≠ assumption of risk that released to others for other purposes

o Garbage Greenwood – No reasonable expectation that garbage be private b/c

assumption of risk for bums, animals, kids, etc. rummaging Brennan: Intrusion = contrary to notion of civilized behavior

Garbage can be very private (medical conditions, sex life, diet, etc.)

Especially problematic b/c D was req’d to dispose of garbage this way

Should req some degree of risk beyond mere possibility of losing privacy

o Possible burglary doesn’t remove home privacy expectation

o Aerial Surveillance See Riley & Dow, below under Tech-Enhanced

Reasonable expectation of privacy for: o Manipulation of bags in public transportation

Bond – 4A protects bags against manipulation b/c expect touching & pushing “as a matter of course,” not groping

Breyer: There are all kinds of pushes, prods, & squeezes in travel

Reasonable Expectation Factors: o Location

Home & things intimately connected to it get ultimate protection Not open fields & outbuildings beyond curtilage (Oliver,

Dunn) Few rights in prison School only reqs RS

o Nature of Intrusion Vantage point Ok to enhance senses if tech generally available to public (Riley)

Fancy cameras over commercial prop = ok (Dow) Hovering over back yard = ok (Riley) Thermal imager on house = search (Kyllo) Beeper in gov prop = ok (Karo, Jones) Beeper in private prop w/ seller’s consent = ok (Knotts)

o Manner of Intrusion How extreme, similar to risk assumed, embarrassing, delaying,

physical? Garbage = assumption of risk (Greenwood) Manipulating/groping bag, as opposed to merely touching (Bond)

o Involvement of 3P No protection for false friends (White) No protection for bank accounts (Schultz) No protection for phone numbers (Smith)

o Nature of Info Obtained Dog sniffs ok b/c very little info obtained (Place, Caballes)

Courts generally allow sniffs outside “homes” b/c only reveals illegal activity (Colyer)

Field tests of substances ≠ search (Jacobsen) Maybe seizure though

Urine tests = search (Skinner)

SEARCHES THAT CAN ONLY REVEAL ILLEGAL ACTIVITY: (58) Dog Sniffs (58)

o Dog’s alert = PC o Generally not a “search” b/c only reveals illegal activity

Can become search depending on how conducted & degree of intrusiveness though

o Problems: Dogs aren’t infallible Dogs can get carried away, like in Lyons (8C 1992) (court found

natural occurrence where dog tore open coke package) o Place – Sniff of closed luggage is sui generis ≠ “search” b/c not intrusive &

little info obtained Illegal seizure b/c unreasonably held up luggage for 90 min waiting for

dogo Colyer (DCC) – No search to sniff outside Amtrak sleeping compartment b/c

no legit expectation of privacy when gov conduct reveals only illegal activity Thomas (2C) – Disagrees re: sniff outside apartment, but it’s an outlier

o Caballes – No search to sniff outside of car during legit traffic stop b/c not beyond time reasonably req’d for ticket (10 min here)

No indication of false alert here or that false alerts common Souter: Dog sniffs = fallible & impermissibly enhance human

perception Ginsburg: Dog changes lawful traffic stop to adversarial exercise

Embarrassing on public road & slippery slope to allow here – imagine impact on public’s sense of security & privacy

Drug Testing :o Jacobsen – No search to field-test white powder w/o warrant b/c only

discloses whether coke or not Seizure b/c destroyed powder, but permissible b/c tiny amount

destroyed & clearly contrabando Skinner – Urine testing = search b/c (1) could uncover innocent secret info

like illnesses, pregnancy, etc. & (2) intrusive to obtain

TECH-ENHANCED: (64) Rule:

o Tech-enhanced obtaining info that’s otherwise unobtainable from lawful area are presumptively unreasonable unless tech is generally available to public

Overflight: o Overflight:

Riley – Cops hovered 400’ over D’s prop to see info hidden from ground view

Plurality: No search b/c not legally prohibited, no injury to prop, not observing intimate activities in house/curtilege

O’Connor: Proper reasonableness test = whether tech enhancement is commonly available to public, not whether possible for public to obtain

THIS IS THE TEST! Brennan: O’Connor’s test = proper, but burden on gov to show

surveillance here so frequent that privacy expectation unreasonable b/c obviously infrequent

Blackmun: O’Connor’s test = proper, but burden on gov to show frequent public access

o Overflight + Photos: Dow – Mere enhancement of human vision via fancy camera doesn’t

implicate 4A, & no privacy interest in area between buildings

Powell: “Search” b/c magnification gave into not otherwise obtainable

Thermal Imaging: (64)o Kyllo – Thermal imaging of home = search b/c (1) home is presumptively

protected, (2) can’t limit thermal imaging to exclude intimate details, & (3) thermal imager isn’t generally available to public

Irrelevant that could find out info other ways b/c that doesn’t make this method legal

Stevens: This is mere observation of home’s exterior Could find this info out otherwise, like by melting snow or

smells Tracking Devices: (71)

o Courts are divided re: GPS, but most say it’s not a search under Knottso Knotts – Cops installed beeper in container & followed it all over

No 4A prohibition on augmenting sensory faculties w/ tech b/c visual surveillance would’ve been ok

If cop practices get too bad, deal w/ it theno Karo – Cops installed beeper in gov’s own can to track it; Used info to get

search warrant; Court order authorizing beeper was later found to be invalid No 4A violation to install beeper in gov’s own can b/c no meaningful

interference w/ possession for can to contain foreign object & no 4A implication to merely receive can w/ tracking device

Violates 4A to monitor beeper in private residence b/c reveals info not otherwise legally verifiable w/o warrant

Search warrant = ok b/c sufficient add’l evidence beyond beeper O’Connor: May no privacy rights in home if homeowner permitted 3P

to enter home w/ beeper Stevens: Beeper significantly changes character of property & private

citizens do & are entitled to assume possession uninfected Jones (4C) – No warrant req’d to install beeper in gov’s own prop

(mail)

PROTECTIVE SWEEP: Permissible if:

o (1) Cops acting legally (warrant, PC, etc.) & o (2) RS that another person in area could harm you

Buie – Cops arrested D in home for robbery w/ accomplice, heard noise & swept home to make sure no one there; Found incriminating evidence during sweep

o Quick & limited sweep ok b/c RS of dangerous person on premises, but can only look in spaces where person could actually be

o Stevens: No protective sweep to prevent evidence destructiono Brennan: Terry was a narrow exception, not a broad rule – still need PC to

make searches “reasonable”

INCIDENT TO ARREST: Need PC to search most containers

o Different rules for cars though Rule: If proper arrest w/ PC, can generally search the following w/ timing sufficiently

close to arrest to be connected:o (1) Person

Very broad, per se right (Robinson, Hedgepeth)o (2) Person’s effects

Very broad, per se right (Robinson)o (3) Place where person is

Right limited to grab area (Chimel) Right is automatic (Chrisman) Defined at time of arrest, not search (Abdul-Saboor)

D need not be able to actually reach grab area at time of search (Lucas, Davis)

o (4) Cars Can search passenger compartment if: (1) arrestee is unsecured & w/in

reaching distance at time of search or (2) reasonable belief evidence relevant to crime of arrest in car (Gant)

Time Limits: o Chambers – No search incident to arrest if search impounded car after

brought to police station & D already in custodyo Chadwick – No search incident to arrest if search footlocker in police station

90 min after arresto Edwards – Cops jailed D at midnight & searched him the next morning after

discovering he might have had incriminating paint chips on him Ok b/c normal process incident to arrest & custody (didn’t occur night

before, like usual)

Stewart: No exigency whatsoever People:

o Robinson – Cops arrested D, searched him, found crumpled cig pack, & found drugs inside

Permissible search b/c not worried about original justifications for allowing searches incident to arrest – goodbye case-by-case analysis

Powell: No 4A privacy interest in person after arrest Marshall: Risks police abuse & pretext; Even if search of D’s person

justified, search of cig pack wasn’to Hedgepeth (DCC) – WMATA arrested, cuffed, searched 12-yo for eating

fries on Metro; Released from booking center 3 hrs later Bad policy, but Atwater says not unreasonable under 4A b/c had PC

Property: o Chadwick – Unlike searches of people, searches of prop incident to arrest

can’t be justified by reduced expectation of privacy Footlocker’s mobility justifies seizure, but need warrant to search

unless exigencyo Chimel – Cops arrested D in home & searched entire home on that basis

Search of home incident to arrest = ok to preserve safety & prevent evidence destruction, but must be limited to person & grab area

No justification for searching beyond person & grab area b/c would eviscerate 4A

White: Arrests so often create exigency req’ing warrantless prevention of evidence destruction that unreasonable to req warrant

Lucas (8C) – D reached for cabinet when cops arrested him, then fought w/ cops for 40 secs; Cops immediately opened cabinet & retrieved gun once D cuffed; Arrested other guys once found gun

No 4A violation under Chimel b/c D need not be physically able to reach items when seized, esp when search immediately after D cuffed & removed & friends still there

Currence (4C) – Cops searched D’s bike handlebars & found coke No 4A violation under Chimel b/c w/in D’s immediate control,

though some of bike might not have been Davis (6C) – Ok to seize rifle close to arrestee when arrested, even

after placing D in squad car Wellford: No exigency once D cuffed & in squad car

Abdul-Saboor (DDC) – Determine “grab area” at time of arrest , not time of search

Perverse incentive for cops to keep arrestee in area to justify search

Chrisman – Cop took D to dorm while he got ID; Roommate got nervous, so cop entered & found weed; D & roomie consented & cop found LSD

Automatic right to search grab area , even w/o affirmative indication of weapon or escape

Once D arrested, cop can remain w/ D at all times, even in dorm

White: Can’t invade living quarters beyond necessary to maintain control & protect self (not cop’s motivation here)

Cars: o Gant – No Belton search unless (1) arrestee is unsecured & w/in reaching

distance of passenger compartment at time of search or (2) reasonable belief evidence relevant to crime of arrest in car

Redefines Belton, if not technically overruling it Individual interests outweigh state’s b/c lots of other doctrines protect

safety/evidentiary concerns Scalia: Abandon Chimel re: cars – car search incident to arrest =

“reasonable” only when (1) searching for evidence of crime of arrest or (2) another crime w/ PC

Alito: Majority reintroduces the case-by-case analysis Belton & Chimel were designed to avoid

Follow stare decisis Ridiculous b/c in 99% of cases, no question whether arrestee

can reach passenger compartment Belton – Automatic right incident to arrest to search entire passenger compartment & open containers

therein b/c entire passenger compartment = grab area

Most courts said this included areas/containers beyond actual reach

Thornton – Belton allows search of car even if arrestee is mere recent occupant, already arrested &

detained in squad car

Scalia: Belton has become unmoored from original justifications & is a return to pre-Chimel

broad searches incident to arrest

Should just justify this on grounds that car might contain evidence relevant to crime

for which D arrested

PLAIN VIEW/TOUCH: Limits:

o Plain view provides PC, but need warrant unless exigent circumstanceso Whatever cops do based on what they saw also must follow rules (can’t seize

if couldn’t seize when found in other legal ways, e.g.) Rule: Cops lawfully in place can seize evidence lying in plain view if PC to believe

subject to seizure (Coolidge)o Discovery need not be inadvertent (Horton)o Can’t conduct further unjustified searches to obtain PC for seizure (Hicks)o Same rule applies to plain touch

Can’t exceed frisk until PC (Dickerson)o “Lawfully in place” = no search or PC/warrant

Coolidge – Cops convinced D to come to station for polygraph & wife to go see family, then searched car, arguing that it was in plain view outside D’s home

o If cops have right to be in place & find evidence w/ PC to believe subject to seizure, ok to seize

o No dice hereo Horton – Cops searched D’s home w/ warrant for robbery proceeds, but really

wanted to seek add’l evidence like weapons Plain view doesn’t req inadvertent discovery b/c objective standards

are best & extant warrant specific reqs sufficiently prevent general searches & warrants

Failure to refer to weapons didn’t change scope of search here Brennan: Don’t want cops to deliberately omit items from warrant

o Hicks – Cops entered D’s apt after bullet fired through floor to look for shooter, vics, weapons; Moved & checked stereo in process & seized it

Plain view req’s (1) PC for initial search + (2) Readily apparent PC to seize

No PC to seize here until moved stereo, so no dice Dickerson – Cop stopped & frisked D, examined small object & said felt like crack;

Searched & seized b/c though PC to believe contraband (D also just left drug house)o Plain touch exists, w/ same standards as plain view

o Doesn’t apply here though b/c cop did more than touch by pushing & prodding

Exceeded frisk

SPECIAL NEEDS: No warrant req’d in specific circumstances

o STILL NEED PC TO BELIEVE EVIDENCE OF CRIM ACTIVITY!!!o Based on considerations:

Gov interest v. Degree of privacy invasion Need must be beyond ordinary law enforcement

Efficacy of method Drug testing gets closer look than checkpoints Does NOT need to be the least effective – just minimally

effectiveo Still need warrant if there’s a clear opportunity to get one pre- seizure

(Coolidge) Standards:

o Containers: “Automobile exception” for cars b/c mobile (Carroll)

Ok to delay search until towed to station (Chambers, White) Actual mobility of car pre-seizure = irrelevant (Cardwell,

Meyers) Includes mobile home unless clearly serving as immobile

residence (Carney) No add’l exigent circumstances req’d (Labron, Dyson) Includes all containers therein, whether PC is specific to

containers or car itself (Acevedo) Can remove containers & delay search a few days

(Johns) Irrelevant whether driver or passenger owns containers

(Houghton)o Exigent Circumstances:

Warrantless search/seizure ok if PC to believe immediate action reasonably necessary to prevent flight, safeguard person, or protect against loss of evidence

Don’t apply if underlying offense is extremely minor (Welsh)

Must be created by something other than cops (Timberlake) Acting lawfully doesn’t create exigency (MacDonald)

Hot Pursuit (Warden, Santana) D must know of pursuit though (Welsh)

Public Safety Reasonable officer must believe it (Stuart)

Destruction of Evidence Must reasonably appear to be in immediate risk of destruction

(Vale, Socey, MacDonald) Excuses knock-&-announce, too (Richards) Destruction of BAC for DWI = insufficient (Welsh)

o Admin Searches: Need must be beyond ordinary law enforcement (Burger, TLO,

Ferguson) Balance gov interests against individual privacy interests invaded

(Chandler, Skinner, TLO, Martinez-Fuerte) Premises:

No individualized suspicion req’d, but need area-wide warrant (Camara)

Applies to homes (Camara) & businesses (See) No warrant req’d for closely regulated industries

(Burger) Persons:

RS = standard in schools (TLO, Redding) No individual RS req’d for extracurricular drug testing

(Vernonia, Earls) No individual RS req’d for professional drug testing (Skinner,

Von Raab) Can’t be too broad (Von Raab) Not justified for candidates (Chandler)

Airport screenings = ok if (1) no more extensive than necessary to detect weapons & explosives, (2) confined to purpose, & (3) avoidable by not flying (Marquez)

No right to avoid once enter security though (Aukai) Same standard for subway searches (MacWade)

Checkpoints:

If suspicion-less, ok for non-law enforcement purposes Must minimize degree of discretion to individual cops

in field (Prouse)o Fixed sobriety checkpoints = ok (Sitz)o Permanent immigration checkpoints = ok

(Martinez-Fuerte) Ok outside open military installations (Green) Ok to address traffic congestion (Davis) Ok to investigate hit-&-run (Lidster)

If for law enforcement purpose like drug transport, need exigent circumstances (Edmond)

Inventory: Must be performed pursuant to departmental policy, to

minimize discretion (Opperman, Bertine, Wells) Must be based on more than mere suspicion of crim

activity (Bertine) Ok under “community caretaker function” if risk of harm

(Cady) Ok for arrestees about to be incarcerated (Lafayette, Bertine) No need to use least intrusive alternative (Lafayette, Bertine)

Borders: Routine warrantless, suspicion-less searches = per se

reasonable (Ramsey, Charleus) Containers:

o Cars: Carroll – Ok to rip open seats of car after stopping D on suspicion of

bootlegging b/c car too mobile to wait for warrant Chambers – Cops searched car w/o warrant after already took it & car

occupants to station “Automobile exception” allows warrantless search at station

under Carroll b/c could’ve searched car on highway due to mobility

Still need PC though White – Same; No need to justify decision to tow first

Coolidge – Plurality: No automobile exception where car is immobile, like here, where cops had whole scene on lockdown

Unlike Chambers, initial intrusion here was unjustified w/o warrant b/c actually got a defective one, so could’ve & should’ve

LIMITED TO FACTS – Only means warrant is req’d if clear opportunity to obtain one pre-seizure, not pre-search

Cardwell – Plurality: Mobility of car pre-seizure = irrelevant Meyers – If PC that immobile car contains evidence of crim

activity, warrantless search ok Carney – Mobile home counts for “automobile exception” b/c based

on diminished expectation of privacy in vehicle (highly regulated, open to view, subject to stop, etc.)

Maybe different if clearly serving as immobile residence Labron & Dyson – No exigent circumstances req’d as long as PC

o Containers in Cars: Ross – Ok to search paper bag & pouch found during car search

Unlike Chadwick & Sanders, PC to search entire car for drugs Contraband is rarely uncontained, so Carroll would be

meaningless if didn’t allow this Marshall: Ridiculous. Sanders req’s warrant if PC that drugs

are in specific bag, but warrantless ok if less specific PC? Acevedo – No warrant req’d to open containers in cars, regardless of

what PC is specific to Overrules Chadwick & Sanders Scalia: All these distinctions are ridiculous, but majority is

textual & originalist Stevens: Ridiculous to claim cops would search more

extensively to establish general PC that allows them to open a bag

Can now search briefcase in locked car, but not on street

Chadwick – Warrant req’d to search footlocker found in car, but mobility justifies warrantless

seizure

Luggage lacks openness to public view, regular inspections, etc. of cars

Sanders – Warrant req’d to search suitcase in taxi trunk when PC re: suitcase, not entire car

Johns – Warrantless search of packages removed from trunk & stored for 3 days; Had PC

Ok b/c Ross allowed search when removed from trunk, & Chambers & White allow delayed search

Maybe if unreasonable delay, but that’s not the case here Brennan: Warrant req’d b/c no exigency excusing it

Houghton – PC to search car = sufficient to justify search of passengers’ belongings therein if capable of concealing objects of search (i.e., drugs in purse)

Justified by balancing test, Ross’ failure to carve out exception for passengers, & practical impossibility of figuring out whose is whose

Stevens: Prior cases don’t create exception b/c it wasn’t at issue, privacy interests outweigh state’s, & spatial association doesn’t justify assuming partners in crime

PC & scope limits still apply, even after Acevedo - Houghton Scope:

If PC to believe evidence of crime in car, ok to search everywhere that may hold object of search, including containers therein

Need warrant to search containers unrelated to car, even w/ PC If PC to search container that’s in car, can only search that

container Search incident to arrest might change things around

Exigent Circumstances: o Warrantless search/seizure ok if PC to believe immediate action reasonably

necessary to prevent flight, safeguard person, or protect against loss of evidence

Intrusion can’t exceed scope of emergency After arrest outside dwelling, need reasonable believe that: (1) 3Ps

inside & (2) 3Ps know of arrest & might destroy evidence Presumptively unreasonable if underlying offense = minor (Welsh)

o Hot Pursuit: Unrealistic to expect cops to stop in middle of chase for warrant Doesn’t apply if suspect unaware of pursuit Warden – Cops chased robbery suspect to house, entered to search for

him & weapons; Found incriminating clothes in washer Justified by hot pursuit & clothes seizure ok as plain view

Welsh – Cops heard car driven erratically into ditch & driver left scene; Went to addy listed on registration & arrested D in home for DWI

No hot pursuit b/c D not away of pursuit Santana – D retreated into house after cops tried to arrest in doorway

Ok to follow b/c hot pursuito Safety:

Req’s significant risk of harm to cops/public Stuart – Fight at party

Entry = permissible b/c reasonable under circumstances (ongoing violence)

No inquiry into subjective motivations unless alleged programmatic purpose

o Destruction of Evidence: Vale – Cops arrested D on sidewalk outside home after found guy

leaving w/ drugs; Went inside & searched before mom & sis returned from store

Warrant req’d b/c drugs not in immediate process of destruction

Cheh disagrees b/c family members would destroy if came home before warrant

Socey (DDC) – No 4A violation to search known drug house after arrest outside b/c reasonable to think look-out system & drugs are easily destroyed

MacDonald (2C) – Cops did undercover buy w/ pre-recorded bill, found guys inside w/ cocked gun & lots of drugs; Cops returned, knock-&-announce, burst in when heard shuffling & on radio that guys trying to escape through window

Exigent circumstances even before knock & scurrying b/c urgent need under Dorman (listing 6 exigency factors)

Could’ve disposed of drugs or pre-recorded bill Just b/c drugs easy to dispose of doesn’t eliminate

exigency exception Kearse: No factual showing of risk of evid destruction & no

indication occupants knew of surveillance

This becomes blanket permission to enter w/o warrant for all drug cases

Richards – Knock-&-announce req = excused if imminent risk of evid destruction, but prove on case-by-case basis

Important factors = D’s knowledge of cops’ presence & imminence of risk to evid

Mincey – D killed cop during drug bust; Homicide came in 10 min later & searched entire house for 4 days

No exigency here No murder scene exception b/c what about rape, armed

robbery, etc. Welsh – Cops arrested D in home after hearing he was DWI; Justified

b/c didn’t want to lose evidence (BAC) Warrantless entry = presumptively unreasonable if extremely

minor underlying offense like DWI (noncrim, no imprisonment)

o Manufactured Exigency: MacDonald (2C) – Cops burst into drug house when heard scurrying

Cops don’t create exigency by acting lawfully Exigency determination = objective & based on totality of

circumstances Don’t depend on suspects’ response to lawful conduct

Timberlake (DCC) – Similar facts to MacDonald, but no prior basis for knocking

Invalid entry b/c no indication cops intended any more than warrantless search of apartment

Cops aren’t allowed to create exigent circumstances Admin Searches:

o Generally ok w/o warrant & individualized suspicion if primary purpose ≠ law enforcement

Totality of circumstances determines primary purpose Weigh gov’s interest v. degree of intrusion

o Premises: Camara – Health inspector inspected homes w/o warrant or

individualized PC

4A applies b/c invasion of privacy, but individualized PC is impossible

Invents area-wide warrant for regulatory searches, req’ing non- arbitrary, regularized basis to go into group of homes in particular area/of particular type

Emphasizes substantial gov interests, history, & practicality

See – Extended Camara to private areas of businesses Burger – Exception to See for inspections of closely

regulated areas like junkyards, which don’t req area-wide warrant if:

o (1) Substantial gov interestso (2) Warrantless necessary for effective

regulatory regime, &o (3) Inspection program approximates warrant

(notice to owner, limited in scope & discretion) Daytime hours & existence of

regulations = sufficient for noticeo Irrelevant that cops do searching b/c states use

them for all kinds of thingso Brennan: Regulation not extensive here & too

much discretion in this program; Searches here are intended solely to uncover evidence of crim acts

o Individuals: TLO – School searched student’s bag w/ RS of cigs

Constitutional b/c special needs beyond crim law enforcement, balancing state interest against student privacy

RS = sufficient to protect students b/c diminished expectation & PC would undermine schooling

Warrant = impractical Applied to uphold warrantless searches of gov officials,

probationer’s house Redding – Strip search of 2 13-yo girls at school

Violates 4A b/c no reason to suspect danger or concealment in underwear

Plenty of RS to search backpack & outer clothes, but this is ridiculous b/c degree of suspicion failed to match degree of intrusion under TLO

Thomas: Let schools do their thing & don’t tell students where to hide contraband; Parents have options if they don’t like this

Drug Testing: Professional:

Skinner – Ok to drug-test RR employees after accidents w/o RS/warrant b/c public interest, history of abuse, deterrence, impractical to figure out RS in post-accident chaos

o Marshall: Stick w/ PC, not balancing Von Raab – ICE drug tested drug interdicters, gun-

carriers, classified doc handlerso Ok for interdicters & guns b/c potentially

serious problem for them & impossible to tell otherwise

o Remands re: classified doc handlers to determine scope

o Scalia: No predicate to think drug use prevalent, so slippery slope

Chandler – Impermissible for GA to req candidates to pass drug tests b/c no indication of past problems & other ways to deter (public officials in public eye already)

o Gov must have sufficiently substantial interest to (1) override individual privacy interests & (2) overcome usual 4A req of individualized suspicion

o Declines to overrule Von Raab Transportation:

Marquez (9C) – Airport screenings = subject to Davis reasonableness test, req’ing:

o (1) No more extensive/intrusive than necessary to detect weapons & explosives,

o (2) Confined in good faith to purpose

o (3) Passengers may avoid by not flyingo Aukai (9C) – TSA refused to let D leave in

middle of security pat-down Ok b/c otherwise, free pass to terrorists

MacWade (2C) – Ok for NYPD to perform daily searches of personal effects at random subway stations

o Immediate & substantial gov interest, minimal intrusion

o Not up to court to assess method’s effectiveness Schools:

Different b/c diminished privacy expectation in schools, generally only req’ing RS under TLO

Vernonia – Ok to test high school athletes b/c predicate, parental approval of plan, athletics is highly regulated like an industry, athletics not for bashful, plan effective to address problem

o No need to use least obtrusive meanso Ginsburg: System is well-tailored here, but

routine testing of all students wouldn’t be oko O’Connor: Mass suspicion-less searches = per

se unreasonable & unconstitutional Even-handed suspicion = insufficient;

need individualized unless exigencies, which aren’t here

Must show use of usual 4A reqs = ineffective

Not true here b/c students constantly monitored

Earls – Ok to test all extracurricular activities b/c just like Vernonia

o No individualized suspicion necessary b/c gov’s interest so compelling, diminished privacy expectation, minimal intrusion

o Testing = reasonably effective means

o Breyer: Ok b/c individualized suspicion would target outsiders & policy adopted democratically

o Ginsburg: Vernonia was dispositively different Hospitals:

Ferguson – Unconstitutional for hospital to help cops test & prosecute pregnant moms on coke b/c law enforcement, not “special needs”

o Ultimate goal = irrelevant b/c immediate objective was law enforcement

Otherwise, could justify any law enforcement program

o Kennedy: Mandatory child abuse reporting laws = ok & can create program to test moms for coke if focused on protecting, not prosecuting

o Scalia: Law enforcement was merely means to legit end

o Checkpoints: Prouse – Random suspicionless stops to check ID & registration =

unconstitutional b/c discretion invites arbitrariness & capriciousness, arouses anxiety & fear

Yearly inspections better effectuate state interest in vehicle registration & safety

Martinez-Fuerte – Suspicionless stops at permanent checkpoints away from border = ok under Terry b/c necessary to substantial state interest in regulating illegals, minimally intrusive b/c fixed

Sitz – Fixed sobriety checkpoints created by reference to specific factors = ok b/c strong gov interest in safety & minimal intrusion, like Martinez-Fuerte

As long as minimally effective, defer to gov officials on effectiveness

Stevens: Too much discretion b/c temporary Edmond – Drug transport checkpoints = unconstitutional b/c

checkpoints for primarily law enforcement purposes = ok only if exigent circumstances

Green (5C) – Suspicionless checkpoints at open military installations = ok b/c unique & similar to borders

Davis (DCC) – Ok to use checkpoint in response to community complaints of drug dealers’ traffic violations b/c primary purpose = remedying traffic problems

Lidster – Cops set up checkpoint on highway 1 weeks after hit-&-run in same spot to ask for assistance; Caught D driving drunk

Ok b/c not ordinary law enforcement, strong public interest, minimal interference w/ 4A liberty

o Inventory: Generally must be done pursuant to a departmental policy, to minimize

discretion 3 state interests for inventory: (1) Protection from false prop claims,

(2) Protection of owner’s prop rights, (3) Protection of all from dangerous items

Must meet at least one of these interests to be permissible Cady – Ok to search cop’s car after towing to look for service revolver

b/c “community caretaker” function Opperman – Ok to search impounded car b/c protects valuables

Extensive search through car ok pursuant to local police regulations

Strong state interests v. minor privacy interests at stake Powell: Warrant unnecessary for departmental regulations b/c

no discretion, arbitrariness, facts to evaluate Marshall: Special needs can’t justify warrantless, suspicion-

less inventory searches Lafayette – Ok to search arrestee’s bag & no need to use least

intrusive alternative Maybe invalid if arrestee not going to be incarcerated

Bertine – Ok to inventory closed containers w/in car & no need to use least intrusive means

Police discretion is ok as long as limited by uniform standards & based on more than suspicion of crim activity

Wells – Can’t open locked suitcase if no policy re: opening closed containers b/c too much discretion, though can allow some discretion re: opening containers

Brennan: Can’t allow individual cops any discretion to determine whether to open container

o Borders: Ramsey – Ok to open envelopes sent from US to Thailand as part of

heroin-by-mail investigation Border searches have been “reasonable” since pre-4A, & never

an add’l PC req Charleus (2C) – No RS/PC req’d for routine border searches of

personal belongings & effects b/c significant state interest, diminished privacy expectation, limited intrusion

Maybe different for non-routine searches

SEIZURESDEFINITION:

State’s meaningful interference w/ possessory interest in prop (Soldal)o Not limited to evidence collection (Soldal)o Includes failure to prevent 3P from interfering (Soldal)

Standards req’d: o Encounters : Noneo Stop : RSo Arrest : PC

STOP & FRISK: (193) Standard:

o Stop : Specific & articulable RS (Terry) Good faith = insufficient (Terry) Automatic right to order driver (Mimms) & passengers (Wilson) out of

car during lawful stop Can enter car to check VIN if obscured w/o asking (Class)

Ok to detain & cuff occupants during warranted home search (Mena, Summers)

o Frisk : RS that armed & dangerous (Terry) Scope must be confined to discovering hidden weapons (Terry) No automatic right to frisk to accompany automatic right to order out

of car (Johnson) Can frisk both things & people Can’t manipulate during frisk (Hicks, Dickerson)

Terry – Beat cop followed suspicious guys, thought casing store, feared had gun; Stopped them, asked names, frisked them & felt gun

o Implicates 4A b/c preventing someone from walking away = seizure, even if not full arrest

o No warrant or PC req’d b/c substantial gov interests & relatively minor intrusion

Stop req’s specific & articulable RS Good faith = insufficient

Frisk req’s RS that armed & dangerous + scope confined to discovering hidden weapons

o Harlan: If RS to stop are articulable suspicion of violent crime, immediate & automatic right to frisk

o White: Citizens normally don’t have to answer cops’ questions on street, but these circumstances justify it

o Douglas: Need PC to believe crime already committed or soon to be This gives cops infinite power

Adams – CI said D had drugs & gun at waist, so cop stopped D & grabbed gun from his waist; Then searched car

o Maybe tip insufficient for PC, but it was sufficiently reliable for stop & frisk Cop knew CI & had good tips in past; CT law subjected CI to

immediate arrest if false complainto Search of car = ok as search supported by PC gained from gun corroboration

of CI’s claimo Douglas: Illegal arrest b/c no indication at that time that illegal to have guno Brennan: Terry doesn’t apply to drug possession b/c too much danger that

frisk = object of stopo Marshall: No showing that CI reliable b/c too many unknowns

Mimms – Cops have automatic right to order driver out of vehicle incident to legal stop b/c cop’s safety outweighs minimal add’l intrusion to driver

o Marshall: Terry req’s nexus between reason for stop & need for self-protection

o Stevens: Ordering driver out of car = more dangerous Bright line rule exempts cops from explaining actions, abandoning

effective judicial oversighto Wilson – Mimms extends to passengers b/c same safety concerns & only

slightly greater intrusion Stevens: Passengers rarely threaten cops, & could be big burden on

innocent citizens b/c lots of stops every day Kennedy: Only allowed if necessary to investigate crime or protect cop

o Class – Cops moved papers on dash to check VIN during traffic stop Ok under Mimms b/c diminished expectation of privacy in car

If VIN not visible from outside, no need to ask to re-enter b/c can detain outside

Brennan: Important gov interest in VIN Dissent: Much smaller gov interest in VIN

Johnson – Ok to pat down driver & passengers lawfully stopped for traffic violation if RS that armed & dangerous

Mena – Ok to detain & cuff people during warranted home search b/c substantial gov interest in safety v. minimal add’l intrusion

o Ok to question re: alienage while lawfully detained, even w/o add’l RS, b/c didn’t prolong detention

o Summers – Cops searching home w/ warrant can req occupants to remain during search b/c gov interest in preventing flight & evidence destruction

Hicks – Moving stereo to check serial # when looking for weapons & shooter = search, not “frisk”

o Need PC

ARRESTS: Definition: More than stop (take control of person to bring to station/court, not just

for brief investigation) Standards:

o Warrant (generally needed) Arrest warrant doesn’t permit entry into 3P’s home to arrest D

(Steagald) Warrantless only for (1) felonies, (2) misdemeanors + reason to

believe flight risk or potential injury, or (3) crime in cop’s presence (ALI Model Code)

No warrant req’d for felony arrest if reasonable to believe guilty (Watson)

In-Home: Unless exigent circumstances, warrant always req’d for in-

home arrests of homeowner (Payton) or overnight guests (Olson)

Can enter D’s dwelling if reason to believe D present (Payton, Magluta)

Doesn’t appear to apply to commercial guests (Carter)

Failure to comply doesn’t render the arrest invalid though if have PC (Harris)

Doesn’t apply to entranceways to common hallways (Holland)

If Warrantless: Must “promptly” present to magistrate for PC assessment

(Gerstein) 48 hrs = presumptively “prompt” & immune to

systemic challenge (McLaughlin) If over 48 hrs, burden on gov to show extraordinary

circumstances (McLaughlin) Need not occur immediately after admin steps incident

to arrest (McLaughlin)o PC (always needed)

Description PC only if reasonably specific (Valez, Kithcart) PC for all car occupants if objectively reasonable for cop to assume

common knowledge & purpose re: seized item (Pringle) Mere presence ≠ common knowledge & purpose though

(Ybarra)o Proportionality

No const req of proportionality to crime – if PC, you’re good to go (Atwater)

o Pretext Irrelevant – don’t inquire into cops’ subjective motivations (Whren)

o Excessive Force Deadly force only if (1) necessary to prevent escape & (2) PC of

significant threat of death/serious physical injury (Garner) Ok to ram fleeing motorist (Scott) Can’t park dozer in street & blind fleeing motorist w/ lights

Non-deadly force if used reasonably, balancing gov interest against intrusion (Graham)

Consider crime severity, immediacy of threat, active attempts to resist/flee (Graham)

Ok to use nonchakus & pressure points on protestors (Forrester), but not pepper spray (Headwaters)

No need to use least intrusive method (Forrester)

Atwater – Cop arrested woman for failing to put seatbelts on self & kids; Woman claimed custodial arrest = disproportionate to crime

o Cop used poor judgment, but no constitutional proportionality req for arrest itself (only excessive force) b/c can’t find administrable rule

o Dissent: Rule should be no arrest absent specific & articulable justification if PC to believe fine-only offense

Warrants: (118-24, 169-74)o Req’s PC (“fair probability,” but not “more likely than not”)o Valez (2C) – NYPD watched drug deal & described seller as Hispanic in 20s

w/ black leather jacket, grey pants, comb in back pocket, white V-neck w/ dark trim on color; Cop arrested guy matching description + facial hair 5-10 min later on the same block w/ coke & arrested

PC to arrest & description wasn’t overly general b/c cops acted reasoanbly

Oakes: Description = too general; Like describing suits on Wall Streeto Kithcart (3C) – Vague description of 2 black guys in black sports car

(possible Camaro or Z-28) ≠ PC to justify arrest of black guy in 300ZX near town where robbery occurred

No indication exactly when or where robbery occurredo Pringle – Ok to arrest all passengers when cash & coke found in back seat w/

driver’s consent b/c objectively reasonable for cop to assume common knowledge & purpose

o Ybarra – Search warrant for bar & bartender doesn’t allow patdown of all patrons

o Watson – CI reported D had stolen credit card, had provided reliable info before, & delivered card; Got D to agree to provide more cards; Cops arrested D, who then consented to search of car

No warrant req’d for felony arrests as long as reasonable to believe guilty of it

Warrant is definitely ideal, but up to Congress to req it Powell: Arrest = seizure, so usually need warrant, but defer to history

& experience Marshall: Should treat this even stricter than search b/c arrest is an

actual seizure No urgency here – PC for arrest continues indefinitely, unlike

search

Don’t stray from 4A privacy protection Excessive Force: (174)

o Ok to use all reasonable, proportionate force to arresto Unlawful seizure to park bulldozer in road & blind fleeing motorist, making

him crash into dozer & dieo No lack of DP to use spike strip for fleeing motorcyclist when spikes threw

him from bike & cops accidentally ran over & killed him Must show behavior that shocks conscience Not a 4A case

o Garner – Deadly force acceptable only if (1) necessary to prevent escape & (2) PC to believe significant threat of death/serious physical injury

O’Connor: Criminals ignore orders to “stop” at own risk Scott – Ok to ram fleeing motorist b/c fleeing car = public safety threat

Balance relative culpability of suspect v. public, both of whom are at risk

o Graham – Ok to use non-deadly force if used reasonably 4A reasonableness standards govern excessive force arrest claims

Balance nature & quality of intrusion on privacy v. gov interest Consider crime severity, immediacy of threat, active attempts

to resist/flee Forrester (9C) – Official police policy re: protesters was (1) verbal

warning, (2) arrest, then (3) pain compliance w/ nonchakus or pressure points; No drag & carry b/c more dangerous & less effective; Lots of injuries suffered

No excessive force under Graham b/c comparatively little force used & legit city interest w/ 100+ protesters, widespread misdemeanors, risks to staff, patients, etc.

No need to use least intrusive force Kleinfeld: Peaceful demonstrators, petty misdemeanor crime,

& serious injuries inflicted Just like Freedom Riders, & more dangerous than

burning w/ cigso Headwaters (9C) – Pepper spray = unreasonable b/c continues to hurt, unlike

nunchakus, & protestors here posed no safety threat Post-Arrest PC: (179)

o Gerstein – Warrantless arrestee must get “prompt” assessment of PC by magistrate, but no trial adversary safeguards needed

McLaughlin – County combined PC determination w/ arraignment for warrantless arrestees & imposed 2-day req that didn’t include weekends & holidays; Ps sought 36-hr PC assessment

48 hrs = presumptively reasonable under Gerstein & immune to systemic challenge

Can challenge on case-by-case basis if delay is unreasonable

If longer than 48 hrs, burden on gov to show extraordinary circumstances

No need to determine PC immediately after admin steps incident to arrest completed

Ok to combine early proceedings here, but must still expedite Federalism concerns Marshall: “Prompt” under Gerstein = immediately after admin

steps incident to arrest Scalia: Unreasonable seizure to hold warrantless arrestee for

reasons unrelated to PC determination or steps incident to arrest, or beyond 24 hrs w/o PC determination

State must justify exceeding 24 hrs by unforeseeable circumstances

This is the standard most fed courts use & many states of various sizes in various places use

Arrests in Home: (184)o Definition of “Home”

Includes hotel & motel rooms if actually staying in them at the time Unclear whether homeless people’s areas = “home” RV depends on how it’s being used

o Payton – Cops went to D’s house w/ arrest warrant, no answer, but looked like he was home; Broke in & found evidence

Warrant always req’d for arrests in home unless exigent circumstances Arrest warrant founded on PC allows cops to enter D’s dwelling if

reason to believe D there Not as good as a search warrant, but better than nothing

White: Shouldn’t encumber cops & system w/ endless debate about exigencies – just use common law knock-&-announce, then enter w/ PC

Olson – Overnight guest in 3P’s home has reasonable expectation of privacy, so Payton req’s arrest warrant

Carter – No 4A standing for D who visited stranger’s home for a few hours to cut coke b/c short-term commercial visit w/o ties, so no 4A protection

Harris – Payton violation = illegal search/entry, but resultant arrest/detention might be legal w/ PC

Magluta (11C) – Cops can enter home under Payton if reasonable for them to believe (1) location is D’s dwelling & (2) D is in dwelling at the time

Common-sense rule; No need to actually see D b/c he’s a fugitive

Holland (2C) – Entranceway to common hallway ≠ “home” under Payton

Newton: Shouldn’t punish D for living in crappy apt w/o buzzer

o Steagald – Cops used arrest warrant for D to search 3P’s home where thought D was

Search warrant req’d to enter 3P’s home unless exigent circumstances/consent

Otherwise, arrest warrant general warrant allowing entry into any home

Rehnquist: Fugitives are mobile, & if suspect lives in another’s home for long, it becomes his home for 4A purposes

Suspect lacks standing to challenge lack of search warrant if he happens to be in 3P’s home though – only homeowner can do that b/c they’re his privacy rights

Material Witnesses: (192)o 18 USC 3144 – Can order arrest & treat witness like crim arrestee if (1)

affidavit shows testimony is material to crim proceeding & (2) impracticable to secure presence via subpoena

Can hold them for reasonable period until can depose No right to compensation for time in confinement

Applies to grand jury proceedings (Awadallah (2C))o Every state has similar provisions

STOP v. ENCOUNTER v. ARREST: Encounter ≠ seizure

o Merely asking for ID & requesting consent for everything (Royer)o Factory sweeps for illegals (Delgado)o Interaction in which cops do not reasonably communicate exercise of

authority to restrain movement (Cardoza) Stop = seizure req’ing RS

o Test = whether reasonable innocent person would believe free to leave, under circumstances (Mendenhall Stewart)

Applies to bus sweeps, but “free to terminate” (Drayton) Only becomes a seizure if citizen actually submits to authority

(Hodari, Lender)o Ok to do some prelim investigation to clear up/develop RS (ID, check

database, sniff, e.g.) (Mendenhall) Anything more req’s PC Can req provision of ID as long as RS to stop in first place (Hiibel)

o Must end when RS for stop ends – can’t use as fishing expedition Can continue if RS of different crim activity (Erwin) No need to inform D when stop ends (Robinette)

o Failing to return ID while asking to accompany (Royer)o Putting suspect in car & taking to crime scene ¼ mile away w/o unduly

prolonging detention (Hicks)o Fingerprinting (Davis)

Must be done briefly in field (Hayes) Cops must be diligent, & added interrogation arrest (Davis)

o Traffic stops w/o unnecessary delays (Sharpe)o Pulling gun when reasonable safety risk (Alexander)

Arrest = seizure req’ing PCo Detention & transport to station (Dunaway, Hayes)

Even if not “arrest” under state law (Dunaway)o Pulling gun when no reasonable safety risk (Novak)

Mendenhall – DEA suspected D of drug courier; Approached in concourse, IDed selves, asked for ID & ticket; Ticket not in D’s name & D nervous; D returned ID & ticket, asked D to come to office; D came w/o saying anything & consented to search

o Seizure not properly raised in lower courto Stewart & Rehnquist: Seizure only if reasonable innocent person would

believe free to leave, under circumstances Consider number of officers, display of weapons, physical touching,

tone of voice, etc. THIS IS THE TEST MOST CASES HAVE ADOPTED

Royer – Same as Mendenhall except didn’t return ID & tickets; Took D to tiny room & retrieved bags w/o consent, then asked for consent to search after had them; D consented; Whole deal took 15 min

o Plurality: Invalid search b/c arrest w/o PC b/c D reasonably believed detained Took D to tiny room, accused him, kept ID & ticket, got luggage w/o

consent, etc. Ok to force movement for safety/security during stop, but need PC to

move for investigation/pressure Blackmun: Stop b/c only 15 min, polite, minimal intrusion Rehnquist: D didn’t want this to occur on the concourse, did he?

o Plurality: Unlawful seizure of D & luggage Encounter to merely ask D for ID & request consent for everything Seizure (stop) to keep ticket & ID while asking D to accompany Refusal to answer = insufficient grounds to seize/detain Dissent: Seizure justified by RS & consent for luggage search

Delgado – Factory sweeps for illegals = encounters b/c immigrants are free to break it off

o Already at work & not going to leave anyway, so not coercive to guard exitso Brennan: Definitely a seizure b/c wholesale interrogation under conditions

designed to prompt intimidated workers to answer Qs Cardoza (1C) – Cops followed D wrong way up one-way; Asked him about shooting

a day before; Talked through open car window; Saw bullet in D’s hand & frisked D & friend

o Encounter b/c cops’ conduct failed to objectively communicate that exercising official authority to restrain movement

o No siren/lights, cop stayed in car & never asked D to stopo Every cop-citizen interaction can’t be “seizure”

Hiibel – Ok to outlaw failure to provide ID during stop, as long as RS to stop in first place

o Important gov interest in IDing stoppeeo Breyer: Ok to demand ID, but can’t criminalize refusal

Drayton – Cops swept bus, left room to leave but didn’t inform passengers of right to leave; Asked to search bag & Ds b/c baggy clothes in warm weather; Found drugs

o Bus sweep test = whether reasonable innocent person would’ve felt free to terminate the encounter

This meets that standard & Ds voluntarily consented to searches No coercion/intimidation; Merely wearing weapons w/o brandishing

isn’t a big deal Irrelevant that D’s friend was arrested first – that just put D on notice

of consequenceso Souter: Cops controlled entire bus & implied that non-consensual interaction

No way passengers thought trip would continue until cooperated Hodari D. – D fled when saw cops coming, so cops chased

o No seizure to merely chase b/c no submission 2 types of seizure:

(1) Physical touching, which is an arrest Doesn’t exist during fugitivity

(2) Non-physical show of authority, which req’s (a) reasonable person wouldn’t feel free to leave + (b) citizen actually submits

o Stevens: Focus on cop’s behavior, not fleer’s submission Touching shouldn’t be determinative in modern day

o Lender (4C) – Cops tried to stop D after appeared to make drug deal; D walked away said “You don’t want me,” then put hands in waist; D stopped & loaded gun fell to ground

Momentary halt w/ back to cops ≠ submission under Hodari If seizure determination turns on amount of time detained, focus is on cops’ diligence

o No diligence in Place Hicks (NY) – Putting suspect in car & driving to scene of crime for ID = continuing

stop when only ¼ mile & detention not unduly prolongedo Benefited both D & law enforcement

Erwin (6C) – Stopped D w/ RS for DWI, but during tests, D acted suspiciously like drug dealer (nervous, tried to leave, used pay phone when had cell, drug paraphernalia, lots of cash, no docs, crim record)

o Ok to continue detention if have RS of different crim activity Robinette – Stopped D & warned; Returned ID, then asked if any illegal stuff; D

consented to searcho Voluntary consent under totality of circumstances – cops not per se req’d to

tell D stop over pre-consent Dunaway – Detention & transport to station for questioning req’s PC, even if not an

“arrest” under state law Davis – Fingerprinting can comply w/ 4A, but not if cops aren’t diligent & interrogate

o Less intrusive than other searches, can be done at convenient time, less harassment

Hayes – Forcibly taking person to station = arrest, so RS = insufficiento Maybe could briefly detain to print in field w/o PC

Sharpe – Cops tried to pull over 2 suspicious cars traveling together; One pulled over while the other took off; Detained 1st car until 2nd caught & returned; Smelled weed & searched camper

o Permissible stop b/c no unnecessary delays – no bright-line time limit b/c focus is on whether cops diligently pursue investigation

o Search = ok b/c officer smelled weed by theno Marshall: D’s fault for being sketchy, but stops generally must be brief no

matter what law enforcement needs areo Brennan: Brevity means brevity. This was too long.

Alexander (2C) – Still a stop if pull guns when stop car in drug area b/c dangerous Novak (7C) – Stop arrest if pull gun on guy in airport b/c no reasonable safety risk

behind airport security

DETENTION OF PROP: Generally need PC

o RS ok only if cops act diligently & no undue delays Van Leeuwen – Ok to detain mailed package 1 day w/ mere RS to develop PC & get

warrant b/c prompt & diligent investigation & better than letting package go Place – Detention of luggage for 90 min req’s PC b/c cops weren’t diligent, didn’t

inform Do Brennan & Blackmun: Terry doesn’t change 4A’s general req of PC for

seizures $191,910 (9C) – 2-hr detention of luggage pending sniff violates 4A solely due to

length

LaFrance (1C) – Cops delayed FedEx package 2 hrs beyond guaranteed delivery based on RS; D said normally arrived an hour early

o No detention until guaranteed delivery time, but permissible then b/c limited time & diligent

D’s expectations don’t change the contractual time Unlike Place, no impairment of liberty interest

CONFESSIONSCONFESSIONS:

Gap between arrest/indictment/PC & initial appearance = prime for exploitation & confessions

3 Const Challenges: o DP

Req’s voluntariness under totality of circumstanceso 5A via 14A (Miranda)

Potent protection for suspects, but must be (1) in custody & (2) subject to interrogation

o 6A via 14A Limited to (1) official state action (2) after arrest & formal

proceedings

DUE PROCESS: General:

o If confession is involuntary, it is inadmissible for any purposes Includes impeachment (Mincey)

o Test = Totality of Circumstances Extreme torture = per se forbidden (Frankfurter), but otherwise, case-

by-case test of whether D’s will is overborne (Jackson) (Watts) (1) D’s characteristics

Youth, heritage, education, experience, IQ (Spano, Baldwin, Green, Astello)

(2) Interrogation procedures/aspects Req’s state action, so all bets off if D affirmatively confesses

(Connelly) Acceptable:

Lie about evidence, facts (Green) Refuse to let 18-yo talk to mom, appeal to sense of guilt

(Astello) Promise leniency (Green)

o Maybe only if true though (Baldwin) Unacceptable:

Falsify evidence (Cayward (FL)) Lie about law (but see Green reference to elec chair) Physical mistreatment (Astello, Green) Credible threats of violence (Fulminante, Payne)

(3) Provision of warnings re: rights (4) Anything else relevant ( reliability, likelihood of gaining helpful

info, political ramifications, revulsion, etc.) Brown – Physical torture, hangings, beatings, etc. to coerce confession

o So “revolting” that violates DP, especially w/ no corroborating evidence whatsoever

o Introduced “Involuntariness Test,” weighing (1) Accused’s personal characteristics, (2) Degree of physical deprivation/mistreatment, (3) Degree of psych pressure, & (4) Provision of warnings re: rights

Tough to apply b/c totality of circumstanceso First time SCOTUS dealt w/ confessions, predating 5A extension to states

Watts – Psych pressure like relay questioning, deprival of needs, no friends allowed, etc.; Corroborating evidence tied Ds to crime

o Interrogation involuntary confession, so confession excludedo Frankfurter: Some behaviors should be per se off-limits as contrary to

adversarial systemo Jackson: Disagrees w/ Frankfurter – case-by-case analysis & only exclude if

D’s will overborne Brutal murders would’ve gone unsolved w/o these confessions &

subsequently discovered corroborating evidence Most troubling issue is lack of attys, but attys would’ve ruined it by

telling Ds to stop talkingo Frankfurter prevails re: physical & extreme psych torture o Jackson prevails in grey areas

Catatonic State – D collapsed in catatonic state after police questioningo Court considered totality of circumstances: D’s characteristics v. Cop

procedures Insufficient showing of overborne will

Spano – Use of confession violates DP when young, foreign, uneducated, inexperienced kid; Q&A session; Numerous officers all night; Disregarded D’s refusals to answer and requests to talk to atty who turned him in; Cops used D’s friend to get statements via false statements

o D’s will was overborne Astello (8C) – Voluntary confession where 3-hr interrogation of 18-yo, refused to let

him talk to mom, & discussed truth train & disgraced familyo No mistreatment, D knew rights & understood consequences

Green (2C) – Voluntary confession b/c promise of leniency = ok, intelligent & streetwise, only 2-hr interrogation, no physical mistreatment

o Lies about evidence found at scene & false reference to electric chair = troubling, but don’t taint confession

o D had own motivation to confess b/c did so to get psych treatment & avoid killing another

Fulminante – CI inmate offered D protection in prison if D told him the truth about what happened in murder for which not incarcerated/charged

o Involuntary confession under DPC b/c confessed to avoid credible threat of violence, like Payne (involuntary when cop threatened to leave D to angry mob if didn’t confess)

o Rehnquist: No indication D believed in danger or confessed for protection, no coercion, no threats or demands, & D experienced in prisons

Connelly IMPORTANT– Crazy guy confessed to murder out of blue to cop on street; No corroborating evidence; Next day, D disoriented & said heard voices

o No involuntary confession, so no DP violation No state action unless cops actively coerce confession somehow

o Brennan: Before admitting confession of mentally ill person, DP req’s court to find “substantial indicia of reliability,” based on extrinsic corroborating evidence

Baldwin (7C) – Ok to promise to bring D’s cooperation to prosecutor’s attentiono False promise of leniency = forbidden, but can honestly promise considerationo This is a truism & D is a career criminal

5A & MIRANDA : Individual right against compelled self-incrimination in crim case

o Only applies if in jeopardy of prosecution :., can be forced to testify w/ immunity, at least before grand jury

D need not accept immunity – offer is sufficient to eliminate risk of prosecution

o Doesn’t apply to previously written docs, though could include statements made before previous tribunals

Could apply to the act of turning over diary, but lose protection if immunity for that act

Miranda – “Custodial interrogation” = always inherently coercive & unreliable, so no case-by-case totality of circumstances test

o Must warn Ds re: (1) Right to silence (2) Anything said can & will be used against (3) Right to presence of atty, either retained or appointed (4) If indigent, atty will be appointed

o D can affirmatively waive rights once warned of them Must be voluntary & knowing Burden on gov to prove waiver

o If D says want to talk to atty, Qs must stop immediately & must provide atty w/in reasonable time

o If D says no more Qs, no more Qs o Can’t use exercise of rights against D o Dissent: Majority makes sweeping generalizations w/o underlying data

How can you trust waivers, but not other statements? Interrogation always has pressures, and this isn’t so bad it’s coercive Confessions will wither away & disappear

o Ends up helping police b/c pre-confession warnings weigh in favor of voluntariness

o Biggest effect has been to improve police trainingo Ds overwhelmingly waive rightso Waiver issues end up turning this almost into the case-by-case totality of

circumstances test that court wanted to avoid Invocation of Rights:

o Rule: Must be clear & unambiguous (Davis) Banks (7C) – No invocation by “Get that out of my face I don’t got

nothing to say” in response to waiver form

Cannot be anticipatorily invoked (McNeil) Substantial break in chain of custody/questioning breaks chain of

invocation Limits:

o Congressional: Dickerson – Cong tried to statutorily re-instate voluntariness test,

relegating Miranda warnings to one factor in balancing test; Claimed Miranda was prophylactic, not Const-mandated

Miranda = constitutional, even if not req’d , so Cong can’t overrule

Miranda has been regularly applied to state courts Exceptions don’t change that b/c just show Const rules

aren’t absolute Court shouldn’t overrule Miranda b/c too embedded, no more

difficult to apply than voluntariness test, ends up helping cops by preserving admissibility of most subsequent statements

Scalia: Not Const-req’d, so prophylactic, as recognized in multiple prior SCOTUS cases

Miranda isn’t that great & insufficiently ingrained to go along w/ 5A bag & baggage

Corley – Language of § 3501 limited McNabb-Mallory Rule (req’ing prompt presentment of arrestees), didn’t completely overrule

Made voluntariness the touchstone of fed prosecutions Confession w/in 6 hrs of arrest = presumptively admissible Confession after 6 hrs = excluded if unreasonable/unnecessary

delay under McNabb-Mallory o Case Law:

Impeachment: Miranda-defective statements can be used to impeach (Harris,

Hass) Dickerson questioned Harris’ rationale, but it’s still

good law Coerced/involuntary confessions = inadmissible even for

impeachment (Mincey) Can’t use post-warning silence to impeach b/c violates DP

(Doyle)

Can use pre-warning silence, including pre-arrest (Jenkins) & post-arrest (Fletcher) b/c no gov inducement

Fruits: Wong Sun applies

Violation must be prox cause (Tucker, Elstad) If deliberate midstream warnings, post-warning

statements related to substance of pre-warning = inadmissible unless curative measures (Seibert Kennedy)

o Good faith failure to warn = ok (Seibert Kennedy, Terry, Elstad)

If statements resulting from violation aren’t admitted at trial, no Miranda issue (Patane Kennedy)

o Physical fruits = admissible (Patane) Tucker – Cops gave defective warning to D, who said he was

w/ friend when crime committed Defective warning excludes D’s confession, but not

friend’s testimony b/c Miranda not a Const ruling Elstad – Same as Tucker, but admitted D’s 2nd

confession instead of a friend’s testimonyo Brennan: D already thinks 1st statement sealed

his fate – this must be inadmissible fruit! Seibert – Law allowed use of subsequent confessions that

parallel earlier Miranda-defective ones Plurality: Midstream warnings after Miranda-defective

confession render subsequent confessions inadmissibleo Distinguishes Elstad

Breyer: Plurality is right, but should focus on fruit of initial confession & good faith

Kennedy: Apply Elstad good faith test unless deliberate 2-step strategy intended to undermine Miranda

o If deliberate 2-step approach, post-warning statements related to substance of pre-warning statements = inadmissible unless curative measures

o THIS IS THE RULE!!!! Terry (8C) – Post-warning confession = admissible

where D started to talk pre-warning, but cop interrupted to warn b/c no indication cops deliberately undermining Miranda

Patane – Cop tried to Mirandize, but only said right to remain silent before D said he knew his rights; Interrogation continued & D confessed

Plurality: Physical fruits of Miranda-defective statement = admissible b/c doesn’t implicate same 5A concerns

o Miranda violation = failure to warn & admission of derivative confession

If no confession admitted, physical evidence is in the clear

Kennedy: If resultant statements not admitted at trial, irrelevant whether cop violated Miranda

o Therefore, admission of non-testimonial physical fruits is ok

Souter & Breyer: This encourages interrogators to ignore Miranda

o THIS IS THE RULE!!!! Emergency:

Miranda exception if: (1) Reasonable belief of (2) immediate risk to safety, and questions are (3) related to safety and (4) close in time to arrest

Includes asking re: needles before searching (Carrillo) Quarles – Cop chased guy into empty store on info that had

gun; Holster empty upon arrest, so asked where gun was w/o Mirandizing

Technical Miranda violation, but public safety exception allows admission

o Danger to public shifts Miranda balance O’Connor: Gun = admissible b/c Miranda doesn’t req

exclusion of fruitso Shouldn’t create public safety exception

Mobley (4C) – No public safety exception where D arrested for drugs in home & only asked about gun after protective sweep revealed no one else in house

Carrillo (9C) – Cops asked whether any needles or drugs before searching; D said he sells drugs, not uses

Admissible b/c public safety – cop has been poked by needles, suffered symptoms of drugs

Defining Custody: Test: Whether reasonable innocent person under circumstances

would consider self under functional equivalent of arrest Possible factors:

o Brown (8C) – (1) Inform D pre-questioning that voluntary; (2) Freedom of movement during questioning; (3) Whether D voluntarily acquiesced; (4) Use of strong-arm/deceptive tactics; (5) Degree of police domination; (6) Whether D arrested at end

o Bassignani (9C) – (1) Language used to summon; (2) D confronted w/ evidence of guilt?; (3) Physical surroundings; (4) Duration; (5) Degree of pressure used to detain

o Age (but see Yarborough) Focus on coercion Arrestees are always in “custody” (Orozco) Cop’s subjective perception of whether D is “suspect” =

irrelevant unless manifested to D, in which case just one factor (Stansbury)

No Custody: Terry stop (unless more cops show up, etc.) (Berkemer) Congenial discussion of tax returns after inviting IRS in

(Beckwith) In prison, unless add further custodial situation on top

of norm (Garcia) D voluntarily comes to station & isn’t arrested

(Beheler)o Including parolees (Mathiason)

Call probationer to probation office (Murphy) Smaller likelihood of “custody” at workplace

(Bassignani, compared to Griffin) Beckwith – Discussing tax returns at table after D invites IRS

in ≠ custody Stansbury – Cop’s subjective & undisclosed perception of

whether “suspect” = irrelevant unless somehow manifested to D, in which case just one factor

Berkemer – Terry stop ≠ custody b/c brief, limited, no req to respond, quick release unless PC

Yarborough – On habeas, age = irrelevant to custodial status, which is objective test

NOT TRUE – AGE FIGURES INTO THE EQUATION!!!

Mathis – Custody to interrogate inmate Not considered per se rule that in jail in custody Garcia (11C) – Custody of inmates turns on whether

reasonable person would believe prison officials further diminished inmate’s freedom of movement

Mathiason – No custody when D voluntarily came to station, told not under arrest, allowed to leave station

Brennan: D was parolee, so this wasn’t voluntary Beheler – Same, but not parolee

Murphy – No custody to call probationer to probation office to question re: rape & murder b/c no actual arrest & D as “suspect” irrelevant

Marshall: Reasonable person in D’s position would’ve believed req’d to answer questions honestly as condition of probation

Griffin (8C) – Custody when FBI questioned D at home, sent parents to other room, didn’t tell D was voluntary or Mirandize, escorted D when left area, arrested D at end of interrogation

Bassignani (9C) – No custody w/ similar facts, but at workplace

Defining Interrogation:

Test: Whether cops should know statements/questions are reasonably likely to elicit incriminating response (Innis)

Emphasis on whether statement was result of police strategy intended to get statements

Booking exception for routine Qs like name, DOB, etc. (Muniz Rehnquist)

o “What’s your name?” = per se booking Q (Carmona)

Doesn’t encompass non-testimonial acts (Muniz Rehnquist)

Ok to comply w/ D’s request to speak to wife (Mauro)o Maybe couldn’t affirmatively place them

together (Mauro) Cop’s comments generally must be directed at D,

provocative, &/or abnormal under circumstances (Calisto, Innis, Soto)

Use of evidence interrogation (Edwards, Payne) Innis – No interrogation where cops talking amongst selves,

brief convo, off-hand remarks, no special knowledge of susceptibility to handicapped girl comments, no cop strategy

Stevens: Focus on whether average arrestee would’ve thought statement called for response

o Obviously discussing a handicapped little girl finding missing gun appeals to anyone conscience

Muniz – Plurality: no interrogation for routine booking questions & sobriety test instructions didn’t reasonably call for verbal response

Asking date of 5th bday = testimonial though Rehnquist: 5A & Miranda don’t apply to non-

testimonial acts like how you speak, DUI tests, etc.o Booking exception exists o THIS IS THE RULE!!!

Carmona (2C) – “What’s your name?” is always a booking question, even if know info in advance

Mauro – No interrogation to comply w/ suspect’s request to speak w/ wife, & record convo

Maybe if cops affirmatively sent wife in Stevens: Everyone knew this would happen, so it’s

functionally equivalent to direct & deliberate interrogation

Calisto (3C) – No interrogation where cops discussed arresting D’s daughter in front of D, prompting his confession

Remarks weren’t directed at D, provocative, or abnormal under circumstances

Unreasonable to assume D would inculpate self – maybe protest

Edwards – Interrogation to play recorded statement of D’s associate, implicating D

Payne (4C) – Miranda only applies when person in custody told about incriminating evidence if evidence is objectively likely to result in incriminating response

Soto (6C) – Interrogation to ask D why had drugs if wife & kid at home b/c directly inquired into D’s reasons for committing offense

Undercover Activity: o Perkins – Cop posed as D’s cellmate & asked if killed anyone; Didn’t

Mirandize Admissible b/c Miranda not intended to protect suspects from boasting Brennan: No pressures here b/c didn’t know it was a cop

Warning Adequacy: o No specific format – just get the info across (Prysock, Eagan)

Ok not to say silence cannot be used against suspect Ok not to Mirandize repeatedly throughout interrogation Ok not to tell suspect what you’ll question them about

Ok to slide from crime to crime (Spring) Waiver:

o Test: (1) Voluntary

Same totality of circumstances test as DPC, but stiffer

DPC allows trickery, but can’t trick into waiving Miranda

Lying about the law = particularly problematic, though not always determinative

State not responsible for D who affirmatively volunteers info b/c no police coercion (Connelly)

(2) Intelligent (knowing) Req’s actual understanding of warnings themselves (Garibay) Req’s cop to attempt to ensure suspect understands, beyond

reading warning (Tague) Doesn’t req knowing/understanding the law, risks to D, that

being recorded, or subject matter of questioning Doesn’t req knowledge of atty procured by someone else

(Burbine; but see Stoddard) Req’s IQ higher than 65 (Zant) Req’s decent IQ & understanding of warning’s language

(Garibay) Doesn’t req that D’s decision be logical (Barrett, Bruni) No trickery allowed, but trickery is more than silence (Spring)

Express written/verbal statement = unnecessary (Butler) Can imply from affirmation of understanding & subsequently

answering questions (Frankson) Cops mustn’t exceed scope of waiver

If waiver is explicitly limited to certain crimes, stick to them (Soliz)

If general waiver, scope is wide open (Spring)o Immediate:

Burbine – Sis got D atty while in custody, but D didn’t know; Cops lied & told atty D wouldn’t be questioned until next day

Valid waiver b/c Miranda only about inherent coercion on D, who didn’t know about atty & didn’t ask for it

No DP “fundamental fairness” issue here Stevens: Deceiving D’s atty ~ deceiving D b/c atty = agent

Stoddard (CT) – Rejects Burbine; No knowing waiver if suspect doesn’t know of atty’s attempt to contact him b/c rejecting abstract Miranda right ≠ reject concrete chance to talk to known atty

Tague – Invalid waiver b/c didn’t try to ensure suspect understood rights

Merely stating warning = insufficient Frankson (4C) – Affirming to cop that understand rights, then

answering questions = valid implied waiver Connelly – Valid waiver b/c no police coercion

Failed to address whether waiver was knowing Zant (11C) – Invalid waiver by D w/ IQ of 65 & under extreme stress

b/c gov failed to show D knew rights & voluntarily waived Garibay (9C) – Invalid waiver by foreign D w/ poor IQ & English

Gov must show D actually understood, not just claimed he did Maybe if warned in Spanish or made D sign waiver

Barrett – Valid waiver where D refused to give written statement, but Mirandized multiple times & orally confessed

Logic of D’s decision = irrelevant Brennan: Invalid if D was under misimpression that oral

statements inadmissible at trial Bruni – Valid waiver under Barrett when D said he would

“answer those questions I see fit” Soliz (9C) – Invalid waiver where D only agreed to talk about

citizenship, but cop asked about smuggling Spring – Ok to jump from crime to crime after single waiver

Trickery might vitiate voluntariness, but it’s not trickery for cops not to say anything

Elstad – Valid waiver where D confessed, then Mirandized, then waived & confessed again

Cops aren’t equipped to figure out when “custody” begins, admissibility of statements, etc.

o Post-Invocation: Rules vary by right invoked Right to Silence:

Cops must “scrupulously honor” invocation (Mosley)

Biggest factors = cooling-off time & renewed warnings Can’t leave D in room w/ crime scene pics for hours

(Tyler) Mosley – Cops arrested & Mirandized re: robberies: D declined

to speak; 2 hrs later, different cop re-Mirandized & questioned D re: unrelated murder

No violation Right to Atty:

No more cop-initiated interrogation after invocation until atty made available to D (Edwards)

Not offense-specific; Prevents interrogation re: any crime (Roberson)

Req’s presence of atty even after consultation provided (Minnick)

Ok if D wants to initiate though (Bradshaw)o Velasquez (3C) – D’s question “What’s going to

happen?” = initiation Still gov’s burden to show knowing &

voluntary waiver though McNeil – Invocation of counsel at arraignment invokes 6A, not

Miranda, so ok to approach D & ask if changed mind

6A RIGHT TO COUNSEL: Applies If:

o (1) Formally charged w/ crime & (Burbine, Massiah) Doesn’t prevent gov from placing inmates in admin detention prior to

indictment (Gouveia)o (2) Challenged occurrence was “critical stage” of adversary process (Moulton)

Includes interrogations/questioning (Massiah) General:

o Req’s presence of atty or waiver of that right (Massiah)o 6A = offense-specific (Cobb)

Cobb – D stabbed woman during burglary, heard baby, buried it w/ mom, confessed to his dad; Cops got statement from dad, arrested D, charged w/ burglary, & questioned him; D confessed to everything

No 6A violation in murder trial b/c 6A only attached to charged offense of burglary

Rejects broad definition of “charged offense” that would encompass all crimes arising out of same transaction/even/acts

If offenses have elements not in common, they’re different

Includes lesser included offenseso Issue = whether gov should reasonably have known their affirmative actions

would elicit info Volunteered statements aren’t covered Mere convo w/ gov agent ≠ deliberate elicitation (Bey)

Gov must try to exploit circumstances/encourage incrim statements

Jail plant cases depend on whether ear or mouth Mouth plant, encouraging D to speak = deliberate elicitation

(Henry) Ear plant, merely listening to D speak ≠ deliberate elicitation

(Kuhlmann) Neutral comments = ear (York)

Doesn’t apply to acts by non-gov agents (Watson rogue CI) Appealing to religion of known religious person = deliberate

elicitation (Nix/Brewer) Knowing exploitation of circumstances ~ actually arranging the

circumstances (Moulton)o No custody/interrogation req (Fellers)o Waiver req’s voluntariness & intelligence, like Miranda (Nix/Brewer)

Miranda warning suffices to warn (Patterson)o Edwards doesn’t apply, so gov can initiate contact after invocation unless

invokes 5A right (Montejo)o Same exclusionary rule as Miranda

Violation = inadmissible in general, but impeachment is exempt (Ventris)

Waiver: o Nix/Brewer – Reception of warnings + choice to speak = insufficient

Same voluntary + knowing standard as Miranda

o Impossible if surreptitious gov action, like in Moulton & Massiaho Patterson – Miranda warning suffice to warn of 6A right to counselo Montejo – D waived Miranda rights; Prelim hearing, where D didn’t

affirmatively assert right to atty, so court appointed; Then cops re-Mirandized & D made statements

Edwards doesn’t apply to 6A right to counsel – only 5A Therefore, ok for cops to initiate questioning of indicted D who

hasn’t affirmatively invoked 5A right to counsel w/o atty, after re-Mirandizing

Concern = involuntary waivers Dissent: 6A is about protecting layman in adversary proceedings, not

coercion (see Jackson) Massiah – Gov indicted D, then got his buddy to wear a wire & get D to say

incriminating thingso Post-indictment statements during questioning w/o atty violate 6A

Worse than clear gov action b/c surreptitious & D doesn’t even know It’s about D’s ability to have counsel protect him, not coercion Ok for gov to get statements – just can’t use them in trial against D for

the crime(s) for which indictedo White: D’s statements = voluntary & no interference w/ D’s consultations w/

atty or trial prep Nix/Brewer – Christian burial speech case

o Deliberate elicitation, so violation of 6A right to counsel Cops knew D was crazy, very religious, etc.

o D could have waived, but didn’to Dissent: D knew of rights & spoke anyway, implicitly waiving; Cops didn’t

question D Moulton – Cops asked CI to ask D about one thing in pre-arranged meeting between

CI & D, but CI asked about more stuffo Deliberate elicitation b/c gov knowing exploited circumstances & should’ve

known D made incrim statements Ok to continue investigating – just can’t use the statements for the

charged crimes, like Massiaho Burger: Hold cops to good faith standard

Shouldn’t hold them responsible for rogue informant

Eyewitness IDsGENERAL:

Problematic b/c very unreliable, but also very important to prosecutions Lineups are suggestive, no matter how they’re done

o Also virtually impossible to fully, accurately, & objectively reconstruct Can use suspect’s refusal to fully participate in lineup as evidence of guilt (or even

contempt)o Can also use fact that suspect changed appearance in anticipation of lineup

Only applies to in-person confrontations

6A RIGHT TO COUNSEL: Rule:

o D has right to have atty present/notice to atty for ID procedure if: (1) post- indictment (Kirby) & (2) in-person confrontation (Ash, Barker)

If rule violated, pre-trial ID is excluded & gov must prove by “clear & convincing evidence” that in-court ID has independent source (Wade-Gilbert)

Videotaping might sub for atty if shows witness room, too (LaPierre) Gilbert – Lineup on stage post-indictment, w/ 100 witnesses in audience allowed to

call people out, discuss, etc.o Out-of-court IDs = per se excluded if no atty & in-court are excluded if fruit

thereof Wade – Cops conducted lineup w/ indicted D, but didn’t notify D’s counsel

o Repeated Gilbert ruleo Gov must show intervening cause/factors by clear & convincing evidence to

overcome presumptiono White: Per se rule is a bad idea – should depend on circumstances

Majority’s rule is practically problematic b/c hassle to get atty there for every lineup, inject attys into investigations, etc.

Hard to define beginning & end of lineupo Black: Ridiculous to stop trial to hold fruits hearing b/c no way to really figure

it out Just exclude pretrial ID & let jury sort out the in-court ID

Kirby – No 6A protection for IDs before indictment

o Impractical to insert attys into all routine investigative procedureso DPC & 5A suffice for pre-proceedings issueso Focus shifts from prejudice, in Wade-Gilbert, to confrontationo Brennan: This is about inherent dangers in eyewitness IDs; Initiation of

proceedings = irrelevant to that Ash – 6A doesn’t apply to photo arrays, even post-indictment

o Easy to reconstruct, & no D present to be counseledo Barker (9C) – Ash applies to photos of lineups for same reasons

DUE PROCESS: If Wade-Gilbert don’t apply, this does!!! Test: (Manson)

o (1) Unnecessarily suggestive & Showing to apparently dying woman in hospital = necessary (Stovall) Showing to CI immediately after drug raid = necessary (Bautista)

o (2) Likely to lead to mistaken ID, weighing Biggers factors v. corrupting effect of ID

Biggers factors: (1) Opportunity to view

Good for vics of rape (Biggers), bank robbery (Simmons), van robbery (Archuleta)

Guy chasing robbers w/in 7” of car (Hudson) Not good for dazed guy on ship (Eltayib)

(2) Degree of attention Good attention for rape vics (Biggers), cops (Manson)

(3) Certainty Relevant, but be careful w/ this (Rodriguez)

(4) Accuracy of prior description Need not include every detail (Manson, Archuleta) More than just hair (Eltayib)

(5) Time between view & ID 7 mos = bad, but not if no prior IDs (Biggers) 30 min = ok (Archuleta) Few hours = ok (Hudson)

Applies to voice ID, too (Patton) Too corruptive to show multiple lineups w/ same guy, making him

stand out each time (Foster) Too corruptive to make D’s the only photo w/ hair when description

focused on hair (Eltayib)o In pursuit of reliability, in light of: (1) problems w/ eyewitness IDs, (2)

deterrence, (3) effect on admin of justice General:

o Immediate show-ups = ok b/c necessary, as long as occur close to event in time & place

o Really tough to overturn judge’s decision not to allow fancy in-court lineup Abuse of discretion standard

o If out-of-court ID = inadmissible, in-court = inadmissible Prior ID’s inadmissibility must’ve been caused by suggestiveness, so

can’t be any independent source for in-court Stovall – Cops brought assailant to hospital for wife to ID b/c she was in danger of

death; Very suggestive atmosphereo No DP violation b/c reasonably necessary to do this to find out D is/isn’t the

guyo Doesn’t consider reliability

Biggers – Rape vic spent 7 mos failing to ID perp, then finally IDed in show-upo Admissible b/c independent source for ID was vic’s experience w/ perp in

crimeo 7 mos is bad, but not where no previous IDs during that time

Bautista (2C) – Not unnecessarily suggestive to present suspects in cuffs for ID by CI immediately after drug raid b/c avoids mistaken arrest

Simmons – No DP violation to show robbed bank’s employees various pics of Ds w/ others b/c independent basis

Foster – Cops tried 3 IDs, including making D 6” taller than anyone else, & witness finally IDed on last time

o Violates DP b/c so impermissibly suggestive that substantial risk of mistaken ID

Manson – Undercover cop buys drugs & sees D through crack in door, describes as high cheekbones

o Rejects per se exclusion of unnecessarily suggestive IDs as too rigid Must pursue reliability, in light of 3 interests: (1) problems w/

eyewitness IDs, (2) deterrence, (3) effect on admin of justiceo Adopts totality of circumstances test, req’ing gov’s procedure to be (1) so

unnecessarily suggestive that (2) likely leads to mistaken ID, based on comparison of Biggers factors v. corrupting effect of ID

Reliability factors: (1) Opportunity to view, (2) Degree of attention, (3) Certainty, (4) Accuracy of prior description, (5) Time between opportunity to view & actual ID

o Marshall: Per se rule is more effective Facts here make cop’s ID way less reliable than majority claims

o Applies to in-court IDs, tooo Archuleta (10C) – Reliability outweighs corruptive effect for ID after 30 min

by guys who chased perps who broke into their vano Rodriguez (7C) – Certainty = relevant, but be careful b/c it might reflect

excessive corruption of procedureso Hudson (7C) – Reliability outweighs corruptive effect for ID after few hours

by guy who chased robbers while getting shot ato Eltayib (2C) – Violation of DP to make D’s photo the only one that showed

hair where ID was by guy who was dazed after getting knocked into fish hold, gave vague description, etc.

Array = improperly suggestive if pic of accused so stands out from all other photos that suggests to witness that accused is more likely to be the perp

o Patton (6C) – Manson applies to voice ID & no mistaken ID for phone harassment case here

Brien (1C) – D could create fairly-staged courtroom lineup, but can’t hide in audience & sprinkle similar-looking people in b/c risk of misleading jury

GRAND JURY5A applies to feds, but not incorporated against statesFUNCTIONS:

(1) Charging o PC standardo Very one-sided & prosecution-dominatedo Sometimes used to absolve gov of direct responsibilityo Power to nullify, but not right (Navarro-Vargas (9C))

(2) Investigative o Extraordinary powerso Can look into anything just to see if any crimes might have been committedo Subpoena Power

Include: Docs

Some atty-client privilege issues 5A doesn’t cover substance of docs

o Only applies to act of production, which is easily & often immunized

People (Testimony) 5A = primary limit

o Doesn’t apply if gov confers immunityo Types of immunity:

Use + Fruits Oliver North example

Transactional (broader & immunizes re: any charges re: crimes related to transaction being investigated)

Conn – Grand jury witness has no right to have atty present in proceeding or to have atty present outside

Non-Testimonial Items Fingerprints, blood, etc.

Limits: Atty-client privilege 5A

Only applies to live testimony and act of handing an item over

Can be waived by witness, or by gov by offering immunity

o Immunity can be (1) Use + Fruits or (2) Transactional

4A Only if extremely intrusive (like surgery to extract

bullet) Witnesses have no other right to refuse to appear/answer

(Branzburg) Can’t resist on grounds that too many witnesses called

(Dionisio) Gov need not show lack of ill will if subpoena is in

good faith (Schofield) Nixon req of relevancy, admissibility, & specificity for trial

subpoenas doesn’t apply (R. Enterprises) Only FRCimP 17(c) applies, prohibiting “unreasonable

or oppressive” (R. Enterprises) Branzburg – Subpoenaed witnesses have no right to refuse to

appear/answer, except a few confidential matters, 5A privilege, & maybe some other special cases

Dionisio – Witness can’t resist subpoena on grounds that too many witnesses called

Marshall: Stigma attaches to grand jury witnesses, so need protection against prosecutorial control thereof

Schofield (9C) – Gov need not show lack of ill intent if grand jury subpoenas in good faith

Ethical prohibitions on subpoenaing defense attys w/o prior court approval = unenforceable against grand jury

R. Enterprises (US 1991) – Nixon req of relevancy, admissibility, & specificity for trial subpoenas doesn’t apply to grand jury

FRCrimP 17(c) prohibits “unreasonable or oppressive,” but that’s a loose limit

Use in camera inspection if relevancy showing necessary

o 4A only limits subpoena power if extremely intrusive (like req’ing surgery to extract bullet)

Court balances potential harm to witness against grand jury’s need/rationale

GENERAL: Independent Body

o In practice, judiciary plays role by issuing subpoenas, holding hearings, etc., & executive by prosecutor presenting to grand jury

Court can’t exercise supervisory power over proceeding unless clear basis in fact & law (Chanen)

o Chanen (9C) – Not fundamentally unfair to read testimony from 1st grand jury to 3rd when 1st didn’t return indictment

Court can’t exercise supervisory power unless clear basis in fact & law, which is lacking here

EPC prohibits racial/ethnic discrimination in selection of jury, but not foreperson (Hobby)

Operates in total secrecy, w/ punishment for breaching that Limited to “infamous crimes”

o “Infamous” = punishable by hard labor or imprisonment (Wilson) Doesn’t include fines (Armored Transport)

o Armored Transport (9C) – No indictment necessary for corporation to be convicted of antitrust felony b/c corporation only subject to fine, which isn’t “infamous”