A. INCORPORATION AND RETROACTIVITY

Incorporation A right guaranteed by the Sixth Amendment which is fundamental to the

American scheme of justice applies to the states through the Fourteenth Amendment (Duncan)

o A right is fundamental if it is implicit in the concept of ordered liberty…selective incorporation

Implicit in the concept of ordered liberty…without said right, one could not have a fair criminal justice process

It is very debatable as to which rights fall under this fundamental fairness approach

o The right to an indictment by grand jury and the right to bail that is not excessive are the only two criminal procedural rights NOT incorporated

Rights to a speedy trial and a jury trial are incorporated

Retroactivity The benefit of a new rule is always given to the litigant who establishes it, even

though that constitutes retroactive application. The SC has done so for two reasons: (1) to provide litigants with incentives to improve past decisions of the Court, because few litigants would ask the Court to establish a new rule that they could not use; and (2) to assure that there is a concrete case or controversy before the Court.

In general, new constitutional rules are not retroactively applicable to cases on collateral review. (Teague)

o Collateral review exception Applies only when the likelihood of an accurate conviction is

seriously diminished by not considering the new constitutional measure

Really will only apply in watershed moments in criminal procedure

o Very, very infrequent

B. FOURTH AMENDMENT Searches and seizures are deemed unreasonable and presumptively

unconstitutional when done without a warrant Fourth Amendment is silent with regards to remedy

o However, violation of the Fourth Amendment leads to the exclusion of unconstitutionally obtained evidence…exclusionary rule

Government activity must be reasonable under the Fourth Amendment only if it is deemed either a “search” or “seizure”

The Reasonable Expectation Test Katz

o Two-pronged test (1) the government conduct must offend the citizen’s subjective

manifestation of a privacy interest

(2) the privacy interest invaded must be one that society is prepared to accept as “reasonable” or “legitimate”

o “the Fourth Amendment protects people and not places”o if both prongs are satisfied then the government has committed a search

(and if unreasonable [without a warrant or otherwise] it is a violation of the Fourth Amendment)

Interests Protected by the 4th after Katz Searches threaten privacy interests, and seizures threaten property interests

o It is easier to figure out what a seizure is as opposed to what a search is

Applications of the Katz Principle Open fields doctrine

o open fields are not protected by the Fourth Amendment not going to be a case-by-case analysis, but instead a bright line

rule because police officers need clear guidance when engaged in their duties

Access by members of the public…public-access-therefore-police accesso Consensual electric surveillanceo Financial recordso Trasho Manipulation of bag in public transit

A law enforcement officer’s physical manipulation of a bus passenger’s carry-on luggage violates the Fourth Amendment’s proscription against unreasonable searches. (Bond)

Distinguished from air travel Canine sniffs

o Canine sniffs of closed luggage for drugs are not searches (Place) not a search because

there is no reasonable expectation of privacy in contraband/illegal activity, and

the dog sniff does not expose non-contraband o If a dog positively alerts, this constitutes legally obtained information that

can be brought to a Magistrate in an attempt to obtain a warrant Luggage may be seized for a limited amount of time

Use of technology to enhance inspectiono Where the government uses a device that is not in general public use to

explore details of the home that previously have been unknowable without physical intrusion, the surveillance is a “search” and presumptively unreasonable without a warrant. (Kyllo)

Significance of “the home” Reopening permitted (Jacobsen)

o if an initial intrusion (at least into a container) is not covered by the 4th, a later intrusion by police officers to the same extent is also free from 4th constraints

The tension between the reasonableness and the warrant clauses

The importance of the warrant clause generally A search and seizure in some circumstances is PRESUMED to be

unconstitutional if no prior warrant is obtained, but in many other circumstances the prior warrant is unnecessary to justify a search or seizure

The 4th requires that police officers obtain a warrant from neutral and detached magistrate before searching a person’s living quarters. (Johnson)

o The natural magistrate is to decide whether the probable cause and specificity requirements have been satisfied

Used to ferret out competition between police and suspects

Obtaining a search warrant: constitutional prerequisites There is no clear definition for probable cause Aguilar-Spinelli Test…Two-prong test for determining whether hearsay

information provides the probable cause needed to make an arresto (1) Reliability of the informant

reliable…police officers and law abiding citizens however, these citizens are often not the best sources of

criminal activity criminals or former criminals are reliable if they have a good track

record of providing information to police or they make declarations against their own interest

o (2) Credibility (Reliability) of the information reliable…informant makes direct statement of personal knowledge

constitutes probable cause reliable…a statement containing such a wealth of detail that personal

knowledge is inferred and can create an inference of probable causeo Both prongs are independent and must both be satisfied

Determines the level of suspicion needed by police to invade our privacy

o A defect in one or both prongs can be remedied by independent corroboration of substantial or of suspicious facts

In hearsay contextso Fairly tough standardo Court formally overrules this test in the Gates case

Gates is a much more permissive test, so courts still refer to the A-S as a first threshold

Gates…A magistrate may issue a search warrant if the “totality of the circumstances” presented in the affidavit indicates probable cause for the search, even if the “veracity” and “basis of knowledge” factor of the two-pronged test of Aguilar and Spinelli cannot be satisfied.

o Probable cause is more of a common sense determination A-S was deemed to be too rigid

o Gates makes the warrant requirement easier in two areas (1) When one of the two prongs was not satisfied or is weaker than the

other

(2) when the tip is insufficient on its own to establish probable cause, but the information is corroboration

Gates says the minimal corroboration is sufficiento Four factors of Gates “totality of the circumstances” test:

(1) the nature of the information; (2) whether there has been an opportunity for the police to see or hear

the matter reported; (3) the veracity and the basis of knowledge of the informant; (4) whether there has been any independent verification of the matters

reported though police investigation Pringle… The passenger of a vehicle, even if separated from the drugs, has sufficient

constructive possession of drugs located in the vehicle to give rise to probable cause for the passenger’s arrest

Devonpeck… An arrest does not violate the 4th when a police officer has probable cause to make the arrest, even if the offense is not closely related to the offense articulated by the officer at the time of the arrest

o There is no requirement for the offense for which you being held to be “closely related” to the offense for which you were arrested

There is a probable cause requirement for arrests. As long as there is probable cause for the reason D is being held, then

the arrest is lawful.o The Court also says this result is good public policy

If the “closely related” rule applied, then police would never tell people why they were being arrested

The Warrant Clause: Probable causeProbable Cause, Specificity and Reasonableness Warren, Zurcher, and Andresen seem to give police significant leeway

o Warren…abolishes “mere evidence” ruleo Zurcher…abolishes distinction between suspects and third parties

The critical elements in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.”

Also, technology seems to expand this leeway considering that given certain CSI techniques, “evidence” can be found almost anywhere

o Andresen… evidence of crimes which relate to or are relevant to proving the crime under which a warrant is issued may be validly seized under the warrant.

Catch-all phrase in warrant deemed okay General warrants deemed okay

Executing the warrant The knock and announce requirement

o the announcement rule is not a rigid constitutional requirement, but rather a component of the 4th ‘s reasonableness inquiry (Wilson)

“Refused admittance”o an officer can break open premises if he has announced his authority and

purpose and is refused admittance Exceptions to the notice rule

o No “breaking”o Emergency circumstances (Richards)o No-knock warrantso No-knock entries and destruction of property

Exigent circumstances after knockingo Exigent circumstances can allow a police to break a door after knocking

Does the violation of the knock and announce requirement justify exclusion of evidence?

o In Hudson, the SC held that a violation of the knock and announce requirement does not justify exclusion of evidence found in the subsequent search of the premises

The Screening MagistrateLegal training Shadwick: issuers of warrants do not need legal training the issuer must only be neutral and detached and competent enough so as the

common sense to determine probable cause

To Apply or Not Apply the Warrant ClauseExceptions to the warrant requirement

(1) Arrests Officials may make valid arrests based on probable cause without a warrant.

(Watson)o Arrest warrants generally are required only in the absence of hot pursuit and

when the arrest is to be made in the suspect’s home. Warrantless arrests, therefore, are the rule rather than the exception.

Note on the use of excessive force in making an arresto Garner: SC held that under the 4th, deadly force may not be used to prevent

the escape of a felon unless it is necessary to prevent the escape AND the officer has probable cause to believe that the suspect posses a significant threat of causing death or serious physical injury to the officer or others.

Use these factors for deadly force analysiso Graham (after Garner): all claims of excessive force in the making of an

arrest (whether deadly or not) are to be governed by 4th standards of reasonableness.

Use these factors for non-deadly force analysis Relevant factors:

Severity of the crime at issue, whether the suspect possesses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight

High-speed chases: (Scott)o SC held a law enforcement official can, consistent with the 4th, attempt to stop

a fleeing motorist from continuing a public-endangering flight by ramming them motorist’s car from behind

Consider number of lives put at risk by D and their relative culpability o A police officer’s attempt to terminate a dangerous high-speed car chase

that threatens the lives of innocent bystanders does not violate the 4th, even when it places the fleeing motorist at the risk of serious harm.”

o Remember: 4th amendment does not require someone to take the best possible measure in using force, it requires only that the police act reasonably

For an warrantless arrest, states must provide a judicial hearing on probable cause within 48 hours of an arrest. (McLaughlin).

o Balancing test…trying to determine what’s reasonable Government interests

Public safety Individual interests

Not been held without a warrant or probable causeo Courts have found that evidence can only be excluded if it was obtained as a

result of an unreasonable detention. Thus, exclusion is not required if the magistrate would have found probable cause for the detention even if the hearing had been promptly conducted.

o And exclusion would not be required if the evidence was obtained outside the context of an unreasonably lengthy detention.

Arrests in the home (as opposed to in public, where Watson applies)o In Payton, SC held that the exception to the warrant requirement for public

arrests did not extend to arrests in the home Arrests in the home of a third party

o Steagald: SC concluded that a search warrant must be obtained to look for a suspect in the home of a third party, absent exigent circumstances or consent.

Again, the difference between an arrest warrant and a search warrant in this context is that the arrest warrant only requires the magistrate’s determination that there is probable cause to arrest a person it is not specific to location. A search warrant would require a magistrate to determine that there is probable cause to believe that the suspect is location in the home of third party.

If the requirement was only an arrest warrant, police would be able to go anywhere they please in order to arrest a given suspect

(2) Stop and Frisk Terry

o Police can stop someone when there is reasonable suspicion that criminal activity is afoot, and they can frisk the person they stopped when they have reasonable suspicion that the person they stopped is armed and dangerous

The sole justification of the frisk is to protect the police officer and others around

Officer safety v. individual rights balancing test To be asked to get out of the car is a de minimis intrusion once

you have already been stopped It is debatable whether officers are safer when the apprehended

get out of the car as opposed to when they stay in the caro 2 reasons Terry is important

(1) emergence of the reasonableness test (2) Terry governs many of the unpleasant interactions that people have

with police Reasonable cause for a stop and frisk can be based on information supplied by

another person, rather than just personal observation (Williams) The SC held that officers in the course of a legal stop of an automobile have an

automatic right under Terry to order the driver out of the vehicle (Mimms) Summers: SC held that police officers with a search warrant for a home can require

occupants of the premises, even if leaving when the police arrive, to remain while the search warrant is executed

When does a seizure occur? The line between “stop” and “encounter” o Two kinds of seizures we have discussed?

Arrests…Watson Stops…Terry

o The Mendenhall “Free to Leave” test DEFINITION OF A SEIZURE: A person has been “seized” within

the meaning of the 4th only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

o Applying the “Free to Leave” test: (Royer) Police have the right to question WITHOUT reasonable suspicion

This is an ENCOUNTER, not a stop because people like the police, they can use encounters to gather

information without reasonable suspicion they cannot use their power to coerce without reasonable

suspiciono Factory sweeps: INS v. Delgado

SC held that INS officer did not seize workers when they conducted factory surveys in search of illegal aliens

SC thought reasonable people here would have felt free to leave

Police questioning, in and of itself, is not likely to be determined a seizure

o Can failure to cooperate lead to reasonable suspicion to justify a stop? it is true that the Court in Royer stated that the failure to

cooperate in a consensual encounter cannot be treated as suspicious conduct that would justify a Terry stop

o Street encounters… Cardoza (1st Cir.) The court also held that the test for a Terry stop is not really whether a

reasonable person would feel free to leave, but rather whether the police officer was acting coercively

This description of the test seems more realistic, and appear to track the case law

o Bus sweeps Bostick

O’Connor’s testo If a reasonable person would feel free to decline the

encounter than it is not a seizure Mendenhall is still good, just

modified/supplemented Drayton

Law enforcement officers do not violate the Fourth Amendment prohibition of unreasonable searches merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.

Court does not want to produce a rule saying that police have to announce peoples’ right to refuse questioning and their freedom to leave as doing so would defeat the purpose of questioning

o The suspect who does not submit: (Hodari D.) Where the officer engages in a non-physical show of authority, it must

be such that a reasonable person would not feel free to leave, and the citizen must actually submit…seizure

Scalia looks at common law and distinguishes between seizures with physical shows of authority and those with non-physical shows of authority

o Physical restraint….you have been seizedo Non-physical restraint…not seized until you submit

Reasonable suspicion Source of information

o Anonymous Tips: (White) an anonymous informant’s tip that was “significantly corroborated” by

a police officer’s investigation provided reasonable suspicion for a stop.

Reasonable suspicion is less stringent than probable cause Reasonable suspicion is a less demanding standard than

probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to

establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Reasonable suspicion is considered within the totality of the circumstances

o Anonymous tips concerning gun possession (J.L.) An anonymous tip that a person carrying a gun is not sufficient to

justify a police officer’s stop and frisk of that person. While an accurate description of a subject’s readily observable

location and appearance is reliable in helping the police to identify the person the tipster means to accuse, it does not show that the tipster has knowledge of concealed criminal activity. Florida (P) also argued that there should be a “firearm exception” to the standard Terry analysis. The Court declines to accept this proposition.

Problems with the tip No predicative information provided No means to verify the tip

However, the Court notes that the greater the potential danger, the lower the amount of reasonable suspicion needed to make a stop

The most important difference between reasonable suspicion and probable cause is that reasonable suspicion is a less demanding standard of proof – a stop that is permissible upon something less than the fair probability standard that defines probable cause. Some courts have defined reasonable suspicion as a fair possibility (as opposed to probability) of criminal activity. It is appropriate to think of reasonable suspicion as “possible cause.”

Assessment of probabilities (Arivzu)o Although separate acts of a suspect may be innocent in themselves, under

the totality of the circumstances test, when taken together, they may reasonably constitute grounds for a search.

Aggregating the factors (all of which alone may be innocent) can produce reasonable suspicion

o For example, it is quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instances (such as a busy SF highway) while quite unusual in another (such as a remote portion of rural SE AZ). Officer Stoddard was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.

Use of profileso A profile is a list of characteristics compiled by a law enforcement agency,

which have been found through experience to be common characteristics of those engaged in a certain type of activity

Reasonable suspicion and flight from policeo Wardlow

SC held that officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation

SC held that there was reasonable suspicion for the stopo The D’s flight plus the high crime nature of the

neighborhood provided reasonable suspicion Handling flight – wherever it occurs – is the consummate act of

evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such

Common sense Limited searches for police protection under the Terry doctrine

o One obvious concern is that an officer may use the Terry frisk doctrine as a pretext to search for evidence of a crime.

o Dickerson: SC reaffirmed the principle that Terry frisks are justified only for protective purposes and that a search for evidence is not permitted under Terry

o Protective searches beyond the suspect’s person (Long) Terry permits a limited examination of an area from which a person,

who police reasonably believe is dangerous, might gain control of a weapon.

You can search one’s “grab area” Thus while the doctrine is called “stop and frisk,” Long permits a

protective search beyond the suspect’s person E.g., his automobile, etc After Long the more accurate description of Terry is “stop and

protective search”o Protective sweeps: (Buie)

The SC considered the legality of a “protective sweep,” which it defined as a “quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others.”

Brief and limited detentions: the line between “stop” and “arrest”o Terry allows a stop upon a standard of proof less than probable cause, in part

because a stop is less intrusive than an arrest. But it is often difficult to determine when a intrusion cross over from a stop to an arrest requiring probable cause.

o Forced movement of the suspect to a custodial area Royer: Some forced movements of a suspect might be justifiable

during a Terry stop; however, probable cause is required if the officer forces the suspect to move in order to further the investigation or to place more pressure on the suspect

Royer: SC held that an officer can, within the confines of a Terry stop, force the suspect to move for purposes of safety and security.

Or for witness identification purposeso Investigative techniques that are permissible within the confines of a

Terry stop

The purpose of a Terry stop is to permit an officer to investigate the facts on which reasonable suspicion is based, in order to determine whether the suspect is involved in criminal activity. It therefore follows that some preliminary investigation, designed to clear up or develop reasonable suspicion, is permissible within the confines of a stop. However, probable cause will be required if the officers are using the stop for some purpose beyond that which justified the stop.

Criminalizing the refusal to provide identification during a Terry stop: Hibel v. Sixth Judicial District Court of Nevada

SC upheld conviction and stressed that an officer has a right to demand identification as part of an investigation during a Terry stop

Detention of property under Terryo Van Leeuwen: SC held that some detentions of property could occur upon

reasonable suspicion. Detention must be done for a reasonable amount of time Under Terry, the police can seize the package but must develop

probable cause in order to search it Application of the Terry reasonable test outside the stop and frisk contest

o A search may be proper pursuant to a condition of probation whether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose. (Knight)

o Suspicionless searches of parolees found reasonable: (Samson) SC held that a condition of a parolee’s release can so diminish or

eliminate his reasonable expectation of privacy that a suspicionless search by a law enforcement officer would be permissible under the Fourth Amendment

Applying racial considerations to Terryo Is it constitutional for police to pay more attention to you because of your

race? No definitive ruling by the US SC Majority rule (in most Js of the US)

You can take race as a factor considered within the totality of the circumstances

Weaver ruleo Facts are not to be ignored simply because they may be

unpleasant … Race when coupled with other factors is lawful factor in the decision to approach and ultimately detain a suspect. We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be.

SC seems to hint acceptance of this rule, though the have never accepted a case directly on this matter

“racial incongruity”o profiling of white people in ghettoes, etc.

or profiling of blacks in affluent neighborhoods

o Views on racial profiling as public policy (1) It’s irrational and ineffective

Butler (2) It rational and effective

Police in Goldberg article (3) It’s rational, but immoral and should not be used

Kennedy (4) Racial profiling should be used for terrorism, but not ordinary

domestic crimes Turley

(3) Search incident to arrest Spatial limitations

o A search incident to a lawful arrest is limited to the suspect’s person and the area within which he could reach for a weapon or evidence. (Chimel)

The rule: the police can search the grab area Purposes of the search of the grab area

o Maintain the officer’s safetyo Prevent destruction of the evidence

This is a per se rule. It is an automatic power that the police have.

o Protective sweep after an arrest Even in the absence of exigent circumstances, police may have the

authority, pursuant to the Terry doctrine, to search beyond the Chimel spatial limitations in order to conduct a “protective sweep” of the place where the arrest is made.

In Buie, the Court defined a “protective sweep” as a “quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers and others.”

Searches of persons incident to arresto The fact of a lawful arrest establishes the authority to conduct a full-scale,

reasonable search under the 4th Amendment. (Robinson) The Court permits a more intrusive search then Terry here

because of the extended exposure of a custodial arrest that subjects police to a greater amount of danger

Custodial arrests for minor offenseso The 4th does not forbid warrantless arrest for a minor criminal offense, such as

a misdemeanor seatbelt violation punishable only by fine. (Atwater) The arrest power rule applied to automobiles

o Police may search the passenger compartment of a vehicle incident to an occupant’s arrest only if the occupant is within reaching distance of the vehicle or if it is reasonable to believe the vehicle contains evidence in support of the reasons for the arrest. (Gant)

Court does balancing test weighing the private interest versus the public interest

The arrest power where no arrest takes place

o In Robinson, the Court established a bright-line rule permitting the full-blow searches when a person has been subjected to a custodial arrest; Gant allows a search of a passenger compartment upon arrest if the occupant has access at the time of search or if there is “reason to believe” that evidence pertinent to the crime is located there.

o Officers may not conduct a full search of a car and driver when the police elect to issue a citation instead of making a custodial arrest (Knowles)

The search was not constitutional because neither of the 2 Chimel purposes for search incident to arrest apply

the argument that officers may more frequently arrest cuts against those against increased government intrusion

(4) Pretextual Stops and Arrests The temporary detention of a motorist upon probable cause to believe that he has

violated the traffic laws does not violate the 4th’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. (Whren)

o It was not unconstitutional to stop Whren and it was not unconstitutional to arrest because they had probable cause to believe that he committed a traffic violation

o Subjective motives Court holds that actual, subjective motives are not significant to the

constitutional analysis

(5) Plain View and Plain Touch Seizures The concept of plain view underlies much of the law and practice under the Terry

doctrine and the arrest power rule, and its applies as well during searches conducted pursuant to a warrant or another exception to the warrant requirement.

As the Court put it in Brown, the plain view doctrine is best understood “not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s access to an object may be.”

o Horton: Where the police have a warrant or other justification for a search, and evidence of an immediately apparent incriminating nature is in plain view in a place where the officers have a lawful right of access, the police may seize the evidence whether or not they came upon it inadvertently.

o Two requirements of PV doctrine (1) Incriminating character of the object must be immediately

apparent; and (2) Officer must have lawful right of access to this object

o Horton holding Police may seize evidence in PV either advertently or inadvertently

The plain touch doctrine (Dickerson)o The plain touch doctrine has the same two requirements as the PV

doctrine (1) Incriminating character of the object must be immediately

apparent; and

(2) Officer must have lawful right of access to this object

(6) Automobiles and other movable objectsThe Carroll Doctrine The Court held that search of an automobile without a warrant is constitutional where

it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant might be sought.

o For automobiles, there doesn’t have to be a warrant, but there has to be probable cause

o Chambers: Where there is probable cause to believe that vehicles are carrying contraband or fruits of the crime, warrantless searches of automobiles are permissible, even where the car itself is seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.

o This case is in accord with the proposition that the 4th is less strict with cars than it is with homes. The ability of the car to be moved, the lesser aspect of privacy, and the plain view of the auto on the highway contribute to this.

Also, diminished privacy rationale rooted in the fact that vehicles are subject to pervasive government regulation

o Difference between Carroll and Gant searcheso Gant

Police can search an auto when they have made a lawful arrest in or near the car and the search is contemporaneous with the arrest

Also, the interior of the car has to be in the “grab area”o Carroll

Police can search an auto when they have probable cause to believe it is has evidence of a crime

o If person is 10 miles away…police can search under Carroll but not Ganto Can police search trunk…

Not under Gant, but yes under Carroll Movable containers – in and out of cars

o Chadwick Container can be seized without a warrant, but a warrant is needed to

search it Container probable cause…container cannot be search

without a warranto i.e. tip given about drugs in container

o Ross Carroll doctrine allows for car-wide search, including containers

Car-wide probable cause…containers can be searchedo i.e. tip given about drugs in car

o Acevedo…LAW Holding: Police officers may search closed containers within an

automobile without a warrant, pursuant to a valid search of the vehicle.

Constitutional rationale

o Privacy is not that great in autos Public policy rationale

o Gives police one clear rule Dissent

Ruling doesn’t make a whole lot of sense i.e. if you have probable cause to believe drugs are in a

container someone is carrying as they walk down the street, you CAN NOT perform a search under Acevedo. However, when this person places the container in her trunk and beings to drive away, the police CAN stop the car and perform a search on that container under Acevedo.

Search of passenger’s property: (Houghton)o “We hold that police officers with probable cause to search a car may inspect

passengers’ belongings found in the car that are capable for concealing the object of the search.”

(7) Exigent Circumstances The exigent circumstances cases concern fact-specific situations in which the

state must show that immediate action was reasonably necessary to prevent flight, or to safeguard the police or public, or to protect against the loss of evidence.

the exigent circumstances exception excuses the officer from having to obtain a magistrate’s determination that probable cause exists; it does not permit a search in the absence of probable cause

the exigent circumstances exception applies equally to arrests and to searches

Hot Pursuit The HP doctrine is based on the premise that the suspect, knowing that he is

being pursued, may seek to escape, destroy evidence or create a threat to public safety.

o It follows that the HP doctrine cannot apply where the suspect is unaware that he is being pursued by police officers.

o On the other hand, the HP doctrine can cover situations significantly short of high speed car chases

Police and public safety A warrant is excused if the delay in obtaining it would result in a significant risk

of harm to the police or to members of the public Public safety and the relevant of a law enforcement objective: (Brigham City)

o Police may enter a home without a warrant when they have an objectively reasonable basis for believing that occupant is seriously injured or imminently threatened with serious injury.

Another exigent circumstances exception to the 4th…this one involves danger to an individual

Application of Brigham City v. Stuart: Michigan v. Fisher

o They did not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception. The test was whether there was an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger

o It sufficed to invoke the emergency aid exception based on a reasonable belief that defendant had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that he was about to hurt, or had already hurt, someone else.

Impermissibly created exigency It is well-recognized that officers should not be allowed to evade the warrant

requirement by impermissibly creating exigent circumstances. Circuits are split over whether police can create exigent circumstances

o SC just granted cert to rule on this issue…King v. Kentucky

Seizing Premises in the Absence of Exigent Circumstances Prohibiting entry while a warrant is being obtained: (MacArthur)

o In determining whether a search is unreasonable and in violation of the 4th, the court must balance the privacy-related and law enforcement-related concerns to determine whether the intrusion was reasonable.

o In determining whether the Fourth Amendment is violated, the court invoke a “reasonableness” inquiry. In general, seizures of personal property are presumptively unreasonable unless conducted pursuant to a warrant issued by a neutral magistrate after finding probable cause

(8) Special needs I: (Administrative Searches; Drug Testing) If the government search or seizure is designed to effectuate special needs

beyond criminal law enforcement, then the Court engages in a balancing of interests under the reasonableness clause to determine what safeguards must apply.

remember: we are not dealing with the possibility that someone is getting arrested here, but rather we are dealing with the possibility of a code violation

Safety inspections of homes Camara

o SC held that government safety inspectors were not required to have probable cause to believe that a particular dwelling was in violation of the code being enforced.

o Thus, while a warrant is required for an admin safety inspection of a home, the warrant need not be based upon a finding of probable cause that a particular home is in violation of a safety code. Instead, the warrant can be issued upon a finding that a search is in compliance with a reasonable admin scheme. Finally, the opinion noted that “nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law had traditional upheld in emergency situations.”

Administrative searches of businesses

o The Court applied the Camara protections to businesses in See, but it is apparent that admin searches of businesses involved different issues from searches of residences.

Burger: Admin inspections of closely regulated businesses fall within an exception to the warrant requirement of the Fourth Amendment.

Standard is generally the same for admin search for business as for admin searches of home except when the business is pervasively regulated

Probable cause nor warrants are not needed for the search of pervasively regulated businesses because they have a more lower standard of privacy

Remember: special needs exception is only good when the search goes beyond the needs of criminal law enforcement

Searches and seizures of individuals pursuant to “special needs” Searches and seizures on the basis of reasonable suspicion rather than probable

causeo T.L.O.: SC found that the reasonable suspicion standard was sufficient to

protect the student’s diminished expectation of privacy in the school environment, while permitting the government the proper degree of maintaining standards of school discipline.

Limitations on strip searches of studentso In T.L.O., the SC required individualized suspicion for search of a student’s

handbag.o A strip search of a student for drugs is unreasonable where there is no

evidence the sought-after drugs pose a danger to other students nor any reason to believe the student may be hiding the pills in his or her underwear. (Redding)

Suspicionless searches of persons on the basis of “special needs” Drug-testing of employees: (Skinner)

o SC upheld a program mandating drug tests for all railroad personnel involved in certain train accidents. Thus, the plan called for suspicionless testing of all personnel involved in the accident.

The SC focuses on the deterrent effect of the drug testing. Seems like a bit of dubious rationale because the drug testing

would occur after a given train accident. Drug-testing of politicians

o A state law requiring that candidates for state officer pass a drug test does not serve to protect public safety and is therefore a suspicionless search precluded by the Fourth Amendment. (Chandler)

Particularized exceptions are warranted only when public safety is genuinely in jeopardy, such as at an airport or court entrance, or when they can be otherwise justified based on “special needs.” When such “special needs” are alleged, courts must undertake a context-specific inquiry closely examining the competing public and private interests advanced by the parties.

Although the method of testing prescribed by the GA statute is relatively noninvasive, GA (D) has failed to demonstrate a “special need” that justifies the testing. The record does not indicate that the hazards the statute aims to prevent are real and immediate. GA (D)

has asserted no evidence of a drug problem among the state’s elected officials, and those officials typically do not perform high-risk, safety-sensitive tasks. However well-intentioned, the statute diminishes personal privacy in a manner incompatible with the 4th.

Drug-testing of schoolchildreno Vernonia

Suspicionless drug tests of school athletes was reasonable because they was a drug problem at the whole school

There was a hoped for trickle-down effect in which most students would not choose to use drugs if athletes did not use drugs

o Earls The first and second failures of drug tests disallow students’

participation in extracurriculars. The third failure of a drug test results in a suspension.

The purpose of this drug testing program is to detect students who were using drugs and deter them from doing so further.

Reasonableness balancing test Individual interest is not very high because privacy is low in

this situation Government interest is high because there exists a

responsibility to keep students safe There does not have to be a demonstrated drug problem, but it

helps if there iso Possible future case for the SC…drug testing of all public high school

students Drug-testing for special needs, or for criminal law enforcement

o A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. (Ferguson)

o Different from the other cases, the results of the drug test were turned over to the police in this situation

o Here, the SC determines that the primary purpose of the government search and seizure is criminal law enforcement

o “special needs is a closely guarded category”

(9) Special Needs II

Roadblocks, Checkpoints and Suspicionless Seizures Permanent checkpoints

o Matinez-Fuerte: SC, invoking Terry principles, approved suspicionless stops at permanent checkpoints removed from the border.

Implemented to regulate the flow of illegal aliens Application of Terry reasonable balance states that state interest in

investigating illegal immigrants outweighs motorist’s interest Because the checkpoints are permanently located they are not that

much of a invasion of privacy

The police do not have much discretion in where the checkpoints are located

Temporary Checkpoints to Check for DUIo Sitz: SC upheld suspicionless stops at temporary sobriety checkpoints.

Application of the “misery loves company” rationale Court relied on the Terry line of cases rather than on the “special

needs” line of cases. The police do not have much discretion in where the checkpoints are

located Drug checkpoints

o In the following case, the SC essentially revised its analysis in Sitz and distinguished sobriety roadblocks from checkpoints designed to check for drugs. The SC invalidates a roadblock program because its primary purpose was to enforce the criminal law.

o Edmond Where a vehicle checkpoint program is designed primarily to uncover

evidence of criminal wrongdoing, such a program constitutes an unlawful search and seizure in violation of the 4th.

Because the primary purpose was obtaining criminal evidence these roadblocks were held to be unconstitutional by the Court

Suspicionless checkpoints to obtain information about a crimeo In the following case the SC distinguished Edmond and upheld a

suspicionless checkpoint.o Lidster

Information seeking highway stops do not per se violate the 4th. The Court’s distinction: the stop was not to find criminal evidence

but rather to seek out information about a crime that occurred

Inventory searches Community caretaking function

o Cady: SC found initial intrusion to search for the gun was reasonable as a “community caretaking function,” to protect the public from the possibility that it would fall into the hands of vandals. Therefore, the seizure of evidence found in plain view was also justified.

Inventory searches are reasonable because they are part of the caretaking function of police

Warrantless suspicionless searches: South Dakota v. Oppermano SC upheld the warrantless, suspicionless inventory search of a car impounded

for a parking violationo As in other special needs cases, the Opperman Court balanced the state

interest in making the search against the intrusiveness of the search to determine whether inventory searches were reasonable.

The SC found that three legitimate state interests supported an inventory search.

(1) protection of the police department from false property claims

(2) protection of the property interests of the owner; and (3) protection of the police and public from dangerous

items the purposes are not to arrest you for breaking the law

the SC concluded that these state interests, which could only be effectuated by a suspicionless search, outweighed the owner’s privacy interests, especially given the diminished expectation of privacy in automobiles

o there must be inventory search procedures instituted by the police for the impoundment or search to be deemed reasonable

Border searches The most persuasive rationale is similar to that used in Skinner and Von Raab:

border searches serve a special need beyond the traditional criminal law enforcement. The special need is the interest in protecting American borders, “in order to regulate the collection of duties and to prevent the introduction of contraband into this country.”

o Protection of our country and regulation of the flow of goods into our country Because the border search serves special needs, it is evaluated under the

reasonableness clause of the 4th. And given the heavy state interest just stated, as well as the diminished expectation of privacy attendant to a border crossing, border searches are ordinarily reasonable even without a warrant or probable cause, and often without any suspicion at all.

“Routine” border searcheso “routine” border searches are deemed reasonable because of the important

state interest involved in regulating the border, the diminished expectation of privacy attendant to crossing the border, and the relatively limited intrusiveness of a “routine” border search.

o In the following case, the SC criticizes the use of the labels “routine” and “non-routine” – at least as applied to searches of vehicles – and finds a relatively unusual search to be reasonable even in the absence of suspicion.

o There is no good definitions for routine and non-routineo Flores-Montano

Under the 4th, customs officers at the international border need not have reasonable suspicion to remove, disassemble, and search a vehicle’s fuel tank for contraband.

What level of suspicion is required for the govt to search your gas tank?

No suspicion is neededo Application of the special needs exception to the

warrant requirement Balancing test…national security is great;

individual privacy is at a low point at the border (minimal governmental intrusion because they are expected); everyone is subject to being searched

Routine border search Routine v. non-routine

Routine border stops…no level of suspicion is required The degree of suspicion required for a non-routine border intrusion

o Montoya de Hernandez: SC held that “the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.”

Non-routine border stops…reasonable suspicion is required

(10) Consent Last major exception to the warrant requirement

o Probably the most commonly invoked exception to the warrant requirement

Voluntary Consent Voluntariness distinguished from waiver: Schneckloth v. Bustamonte

o A search based on voluntary consent is reasonable even in the absence of a warrant or any articulable suspicion.

o Schneckloth The question whether a consent to a search was in fact voluntary or

was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.

o Valid consent…voluntary consent under the totality of the circumstanceso There is no requirement to inform an individual of his right to refuse

consent Informing one of his right to refuse consent is only one factor

Totality of the circumstanceso Bumper: burden of proving consent to be voluntary is on the governmento Gonzalez- Basulto (5th Cir.) non-exclusive list of six factors relevant to

whether consent is voluntarily obtained: (1) the voluntariness of the D’s custodial status; (2) the presence of

coercive police procedures; (3) the extent and level of the D’s cooperation with the police; (4) the D’s awareness of his right to refuse consent; (5) the D’s education and intelligence; and (6) the D’s belief that no evidence will be found.

Widely used factorso Obviously, none of these factors are dispositive.

Third Party Consent Frazier: SC upheld the search of a D’s duffle bag when his cousin, a joint user of the

bag, voluntarily consented. Actual authority: (Matlock)

o Third party consent to search a common areao The authority which justifies the third-party consent does not rest upon the

law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Apparent authority: (Rodriguez)o Entry was valid if officers had reasonable belief that the friend had authority

to consento The SC concluded that the question of authority to consent should be

governed by the same standard of reasonableness – and allowance for reasonable mistakes – as had been applied in other areas of 4th jurisprudence, such as probable cause, the execution of a warrant, and the existence of exigent circumstances.

o Thinking about the constitutional analysis…so long as it is reasonable for the police to believe that someone has authority to consent to a search, the search is constitutional

Third party consent where the defendant is present and objecting: Georgia v. Randolph

o Randolph Police can constitutionally search a home without a warrant when a

co-habitant consents, but the other co-habitant, who is present, does not consent.

However, evidence can be used only against the person who consented to the search…evidence cannot be used against the person who did not consent

Only where the co-habitant who objects is present in the house and verbally objecting does this rule apply.

Possible future of the consent exception…o (1) get rid of consent exceptiono (2) warnings informing one of the right to refuse consento (3) maintain status quo

C. REMEDIES FOR FOURTH AMENDMENT VIOLATIONS The 4th does not explicitly provide any remedies for its violation

THE EXCLUSIONARY RULE the exclusionary rule, in its broadest conception, provides that evidence obtained

in violation of the 4th must be excluded from trial.o If police obtain evidence in violation of the 4th Amendment it cannot be used

against the D in his trial. Exclusionary rule for federal courts: (Weeks)

o SC held that evidence obtained in violation of the 4th must be excluded from evidence in fed courts

o Two common themes articulated in Weeks…Exclusionary rule is the only effective means of protecting 4th rights, and that the interest in judicial integrity requires that the courts not sanction illegal searches by admitting fruits of illegality into evidence

The exclusionary rule and the states Wolf

o Two holdings in the case (1) 4th Amendment is incorporated

this is considered to be a fundamental right (2) Exclusionary rule is not incorporated

this is not considered to be a fundamental righto Here, the SC found that evidence must be excluded in fed cases because it was

the only effective means of enforcing the 4th Note on Wolf and the road to Mapp

o In between Wolf and Mapp what happened? Many more states had adopted the exclusionary rule because they

found other remedies to be “worthless.” The rise of the Civil Rights Movement

Federalism after Brown seemed to become a less important principle

Also, there was a six member shift on the Court in between these cases Mapp

o Mapp overturned Wolf. Exclusionary rule applies to states

o Without the exclusionary rule, the “4th is just a form of words on paper”

Arguments for and against the exclusionary rule Purposes of the exclusionary rule

o Compel respect for the 4th (by deterring police conduct) What is the purpose of the exclusionary rule?

o Deter police misconduct 4th is violated when the police engage in an unreasonable search or seizure

o it is not a new violation of the 4th when evidence obtained in contravention of the 4th is presented in court

exclusionary rule cannot undo the violation already done, so it attempts to deter future violations

o it works as a deterrent by removing the incentive to violate the 4th Professor Amar…

o “The Fourth Amendment today is an embarrassment. Much of what the SC has said in the last half century – that the Amendment generally called for warrants and probable cause for all searches and seizures, and exclusion of illegally obtained evidence – is initially plausible but ultimately misguided. As a matter of text, history, and plain old common sense, these here pillars of modern 4th case law are hard to support; in fact, today’s SC does not really support them. Except when it does. Warrants are not required – unless they

are. All searches and seizures must be grounded in probable cause – but not on Tuesdays. And unlawfully seized evidence must be excluded whenever five votes say so. Meanwhile, sensible rules that the Amendment clearly does lay down or presuppose – that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures – are ignored by the Justices. Sometimes. The result is a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse. Criminals go free, while honest citizens are intruded upon in outrageous ways with little or no real remedy. If there are good reasons for these and countless other odd results, the Court has not provided them.”

From handouto Also, Amar does not like the fact the defendants are acting as private attorney

generals Common public policy arguments in favor

o Judicial integrity Courts cannot make decisions based on unconstitutionally obtained

evidence How does Amar respond to the judicial integrity argument?

It does not make the courts look any better to throw out evidence that does not need to be thrown out

o Consider when it is especially probativeo Government should not be able to profit from its own wrongdoing

Government should not reap the benefit of police officers, acting on behalf of the government, who acted unconstitutionally

How does Amar respond to the judicial integrity argument? Yes, the government should not be able to profit from their

wrongdoing, but criminals should also not be able to profit from government wrongdoing.

o Only prevents evidence that police could not have gotten to in the first place

How does Amar respond to the judicial integrity argument? In many situations, it is far from clear that the illegality of a

search is indeed a but-for cause of the later introduction of an item found in a search

o Deter police misconduct However, consider that we do not want to overdeter so as to

disencourage police officers from properly doing their job How does Amar respond to the judicial integrity argument?

Makes the D the one who controls and punishes police, and we do not want someone like that in such a position

Which arguments are most persuasive? Those is support of the exclusionary rule or against it?

ALTERNATIVES TO EXCLUSION

It should be noted at the outset that an of these remedies could be used as supplements to, rather than replacements for, suppression of evidence.

Civil Damages RecoveryCriminal prosecutions of offending officersPolice rulemaking and other administrative solutions

LIMITS ON EXCLUSION

There are a number of important situations in which evidence has been illegally obtained, and yet it will not be excluded. This section considers those limitations on the exclusionary rule.

(1) Good Faith

“Good Faith” – Reasonable reliance on the decisions of magistrates and others Leon

o The 4th exclusionary rule does not bar the introduction of evidence for use in the prosecution’s case-in-chief which was seized by law enforcement officers and reasonably relied on a warrant issued by a detached and neutral magistrate which is ultimately found to be unsupported by probable cause.

o The question of the day…has their been police misconduct?o Remember…there is no constitutional violation when unconstitutionally

obtained evidence is introduced in court the 4th violation occurs during the unconstitutional search/seizure not

during the introduction of the evidence at the trial the exclusionary rule does not undo the earlier violation of the

4th Amendment exclusionary rule is not required by the 4th

o Cost-benefit analysis of the exclusionary rule Cost…guilty defendants may go free Benefit…deter police misconduct

o Therefore, because there is no police misconduct, the evidence should not be excluded…the cost of excluding the evidence outweighs the benefit of doing so

o Exceptions to the good faith exception…thus, the exclusionary rule still applies and the evidence is excluded

(1) magistrate was misled by the police (2) magistrate abandoned his judicial role (3) officer relies on a warrant that is clearly so lacking in probable

cause that a reasonable officer could not reasonably rely on it (4) the warrant was facially deficient

o penalizing the officer for the error of the magistrate does not follow the deterrence rationale of the exclusionary rule

The good faith exception and warrantless searches

The SC in Leon applied the good faith exception because an officer reasonably relied on the magistrate’s decision. The SC reasoned that the magistrate, rather than the officer, made the error, and that the magistrate cannot be deterred by the exclusionary rule.

Good-faith exception applied where error was the result of negligence attenuated from the arrest or search

o Herring When police mistakes leading to an unlawful search are the result of

isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.

The only issue here is whether negligence by the police, as opposed to others, will lead to the suppression of evidence. The SC holds that it should not. The exclusionary rule was created to deter police misconduct. The conduct must have a deliberate or indifferent nature to invoke he exclusionary rule. Those circumstances are not present here. An error arising from nonrecurring negligence, as opposed to systemic negligence, does not implicate the concerns the exclusionary rule was designed to protect.

(2) Standing

Establishing a violation of a personal Fourth Amendment right 4th rights are personal rights. It therefore follows that for a D to be entitled to

exclusion of evidence, he must establish that his own personal rights were affected by the government’s search or seizure.

Joneso In the 1960s, the SC developed a generous view of a D’s entitlement to invoke

the exclusionary rule. Jones (1960), held that D had “automatic standing” to challenge the legality of the search that produced the very drugs that he was charged with possessing at the time of the search. The SC in Jones also stated that a search could be challenged by anyone “legitimately on the premises where a search occurs.” In the following case the SC substantially cuts back on Jones, and more importantly, recharacterizes “standing” questions so that they are now resolved by substantive standards of 4th law.

Rakaso A person may not move to suppress evidence in which he had no proprietary

interest nor expectations of privacy.o Katz v. Rakas

K analysis…Whether there has been a search by the government? R analysis…Whether one has standing to object? Same wording, but a different test

Two prongs:o (1) whether the individual expects privacyo (2) whether that expectation is reasonable (or

legitimate)

reasonable…empirical legitimate…normative

…test might not always lead to the same result there may be a search of a person’s home, but someone inside

that house who is not the owner may not have standing to object

Presence in the home of anothero Questions like this are determined, after Rakas, by whether you had a

reasonable expectation of privacy in the areas that were searched. What follows is the SC’s most recent opinion applying the Rakas analysis.

o Carter In order to claim the protection of the 4th, a D must demonstrate that

he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.

An overnight guest in a home must claim the protection of the 4th, but one who is merely present with the consent of the householder may not.

Since they did not have any legitimate expectation of privacy in the apartment, any search that may have occurred did not violate their 4th rights.

The Ds did not have standing, so a ruling on a potential 4th violation is not even necessary.

Some argues that this ruling lessens the bite of the exclusionary rule.

(3) Causation and the exception for attenuation (fruit of the poisonous tree, which is limited by the independent source doctrine and the inevitable discovery doctrine)

The requirement of causation and the exception for attenuation The exclusionary rule does not apply unless there is substantial causal connection

between the illegal activity and the evidence offered at trial. Deterrence is unjustified in the absence of that causal link. Determining whether a causal connection between proffered evidence and an illegal search and seizure to justify exclusion.

In these cases, the D asserts that there is a direct link between the illegality and the proffered evidence. The government, while admitting at least for argument’s sake that there was an illegal search and seizure, nonetheless contents that the relationship between the illegality and the proffers evidence is too attenuated to justify exclusion.

Browno Where an illegal arrest leads to a search or confession which produces

evidence, that evidence is inadmissible as “fruit of the poisonous tree” unless the causal connection between the illegal arrest and the discovery of the evidence is so attenuated as to dissipate the taint. (However, the mere recitation of Miranda warnings prior to confession does not dissipate the taint.)

o Miranda warnings are only one factor in the determination of whether a confession was obtained by exploitation of an illegal arrest or whether the

taint was dissipated. Other factors include how much time passed between arrest and confession; the presence of intervening circumstances, especially an act of free will by the D, and, particularly the purpose and flagrancy of the police misconduct.

o There is no bright-line rule for determining whether derivative evidence is fruit of the poisonous tree, but rather it is a case-by-case analysis based on the totality of the circumstances

o Once an illegal search has been established, the government has the burden of proof to prove that the evidence attained is not the fruit of the poisonous tree

Wong Suno WS’s arrest was also tainted, but his confession was admissible in light of his

lawful arraignment and release on his own recognizance and his voluntary return several days later to confess. The connection between WS’s arrest and confession had become so attenuated as to dissipate the taint.

o WS test for causation…“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Insufficient causal connection between a knock-and-announce violation and evidence found in the home: Hudson v. Michigan

o In the following case, the SC decides that a violation of the knock-and-announce requirement does not justify the exclusion of evidence found in the warranted search.

o But the case may have broader importance as it seems to signal that the SC is questioning whether the exclusionary rule is necessary at all given developments since Mapp

o Hudson Violation of the knock-and-announce rule does not require suppression

of all evidence found in a warranted search. The purpose of the knock-and-announce is to protect police officers

from surprising residents who might retaliate in presumed self-defense, to protect private property from damage, and to protect the privacy and dignity of residents. The knock-and-announce rule has never purported to protect one’s interest in preventing the government from seeing or taking evidence described in a warrant. In addition, the cost of excluding evidence based on knock-and-announce violations would be serious, amounting to providing dangerous criminals with a get-out-of-jail-free card.

Two ways attenuation can occur: (1) when the causal connection is way remote (2) does not serve constitutional purposes

o this is the analysis used here

Holding The exclusionary rule does not apply when the police

violate the knock-and-announce ruleIndependent Source Evidence will not be excluded if it is obtained independently and without reliance on

any illegal police activity. The “independent source” doctrine allows “the introduction of evidence discovered initially during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality.”

The independent source doctrine and the inevitable discovery doctrine limit the “fruit of the poisonous tree” doctrine

Murrayo Under the “independent source” doctrine, “evidence initially uncovered, but

not seized, during an illegal search will not be suppressed if the police later obtain a search warrant which does not rely on any facts discovered during the illegal search, and then seize the evidence during a second search pursuant to the warrant.”

o If they do not already have probable cause, no information obtained during the illegal search can be used to establish probable cause, and, moreover, if a court does not believe that the officers would have sought a search warrant absent the illegal search, then the evidence will be suppressed.

o The police did not mention to the magistrate that they had went into the warehouse and saw the marijuana

o Seeing the marijuana did not disallow the issuance of the warrant because the police could have provided probable cause to obtain the warrant based on evidence derived independently of their illegal conduct

Inevitable Discovery The inevitable discovery exception has been termed the “hypothetical independent

source” exception. For the exception to apply, the government must show that the illegality obtained

evidence would have been discovered through legitimate means independent of the official misconduct. Note that if the evidence is actually discovered through legitimate independent means, the independent source exception would apply. So the inevitable discovery exception is one step removed from the independent source exception.

o The SC in Nix held that to invoke the inevitable discovery exception, the government must prove by a preponderance that the challenged evidence would have been discovered through independent legal means.

Rejection of the more stringent clear and convincing standardo The SC’s opinion strongly suggests that the inevitable discovery doctrine

limits the exclusionary rule under the 4th, 5th, and 6th

US v. Andrade (9th Cir. 1986)o was not a good search incident to arrest nor a good inventory searcho court refused to suppress bag with cocaine found later because the DEA

would have done an inventory search later

some refer to the inevitable discovery doctrine as “the hypothetical independent source” doctrine

court’s rationale: police should be in the same position, but should not be in a worse position

Establishing inevitabilityo Nix holds that the government must prove by a preponderance that the

illegally obtained evidence inevitably would have been discovered by legal means.

o In deciding whether the inevitable discovery execution applies, courts must focus on what the officers actually would have done, not on what they could possibly have done.

Use of illegally seized evidence outside the criminal trial context Where it applies, the exclusionary rule operates to exclude evidence at a criminal

trial. But in a series of cases, the SC has held that the exclusionary rule generally does not apply outside the context of a criminal trial on the merits. This is because, according to the SC, exclusion from the criminal prosecution’s case-in-chief is all that is necessary to deter 4th violations. The cost of exclusion in other “collateral” contexts generally has been held to outweigh the benefits in deterrence that the rule provides.

Use of illegally obtained evidence for impeachment purposes

D. FIFTH AMENDMENT…THE PRIVILEGE AGAINST SELF INCRIMINATION “No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It is the D’s decision, and his decision alone, to decide to testify at his own criminal trial

o This is based on the privilege against self-incrimination provided by the 5th

THE PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

The policies of the privilege against compelled self-incrimination The SC often flip flops on these rationales depending on how they want a given case

to come out Policies:

o Protection of the innocent The privilege protects an innocent D from convicting himself by a bad

performance on the witness stando The cruel trilemma

We are unwilling to subject those suspected of crime to the cruel trilemma of self-accusation, perjury, or contempt

o Deter perjury If there were no privilege, people compelled to testify would commit

perjury rather than incriminate themselves. Rampant perjury would burden the courts.

o Unreliability of coerced statements We do not trust self-deprecatory statements, particularly when they are

the product of coerciono Preference for accusatorial system

We prefer an accusatorial rather than inquisitorial system of criminal justice

o Deter improper police practices Self-incriminating statements are likely to be elicited by inhumane

treatment and abuses. The privilege has historically protected against such forms of torture.

o Fair state-individual balance “the privilege contributes towards a fair state-individual balance by

requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to should the entire load.”

o Preservation of official morality “Any system which permits the prosecution to trust habitually to

compulsory self-disclosure as a source of proof must itself suffer morally thereby”

o Privacy rationale “our respect for the inviolability of the human personality and of the

right of each individual ‘to a private enclave where he may lead a private life’” justifies the privilege.

o First Amendment rationale The privilege affords “a shelter against governmental snooping and

oppression concerning political and religious beliefs.”

Scope of the privilege Requirements… (1) compulsion; (2) testimony; (3) self-incriminating; and (4)

subsequent case in which the compelled testimony is to be used is criminal 4 main issues

o Is there compulsion?o Is there testimony?o Is it incriminating?o Is the subsequent case criminal?

What is compulsion? The 5th protects against self-incrimination only if it is compelled by the government.

It is sometimes difficult to determine whether a particular pressure imposed by the government on a citizen rises to the level of compulsion.

Use of the contempt powero Use of the contempt power is the classic form of compulsion, because it

imposes a substantial punishment on the witness who is exercising the right to remain silent, and it presents the witness with a cruel trilemma: remain silent and face imprisonment; tell the truth and face imprisonment; or tell a lie and face imprisonment for perjury. Thus, a witness cannot be subjected to contempt for refusing to testify, if the testimony could create a risk of self-incrimination in a criminal case.

Other state-imposed sanctionso The SC has extended the concept of compulsion well beyond its original

ground in the contempt power. For example, the Court in Miranda found compulsion in the setting of custodial interrogation. The SC has also found other state-imposed sanctions for silence, of less severity than contempt, to constitute compulsion. The following case provides an example of the SC’s approach.

Turleyo A state cannot compel testimony in violation of the 5th without offering

immunity from prosecution.o there is compulsion here because there was a significant (economic, here)

penalty for invoking the privilegeo if given immunity, then the contractors could be required to answer the

questions presented the 5th does not prevent from people from being required to

provide incriminating information to be used in a civil case The benefit-penalty distinction

o The basic answer is that denial of a benefit is not a penalty, and therefore is not compulsion.

o It is not compulsion if one gets a benefit for testifying, rather than a penalty for not testifying

The B-P distinction and penalties imposed on incarcerated sex offenders: (McKune)

o A divided SC considered whether the BP distinction works when applied to a program for rehabilitating incarcerated sex offenders. The SC also considered whether certain inconveniences can be imposed on a prisoner for remaining silent without rising to the level of compulsion.

o SC found that the consequences were not serious enough to compel himself to be a witness against himself…changes in living conditions appeared to be minor

Not compulsion in the sense of Turley compulsion Some consequences…movement to a prison with less privileges, less

opportunity for work/wages, a more dangerous environment, etc.o SC says B-P does not hold constitutional weight

To whom does the privilege belong? The privilege against self-incrimination is a personal right, belonging only to the

person who is himself incriminated by his own testimony.

Testimonial aspect Who can assert the privilege against self-incrimination? What kind of evidence can

the privilege protect?

Fishero The 5th does not protect against compelled production of a taxpayer’s papers if

such production would not involve testimonial self-incrimination. o It protects against “compelled self-incrimination,” not the disclosure of private

information. o Court declined the attorney’s right claim the privilege on behalf of a

client, even though the attorney may be legally or ethically bound to respect the confidence of the client

o Court rejects the privacy justification in this case Court jumps from one rationale to the other in analyzing cases

o The SC in this case recognizes that even if Fisher (D) himself had been served with the subpoena, it would not violate his rights under the Amendment. Therefore, if the principal could be compelled, his agents clearly could be compelled to produce the documents.

Note on the collective entity ruleo The more closely a business is like a person, the more likely that business is to

receive 5th protection

What is protected? The privilege only protects a person when that person is being compelled to be a

“witness” against himself. Thus, it does not protect against all forms of compelled self-incrimination. If a person is forced to given information other than what a “witness” would provide, the privilege is inapplicable. In the cases that follow, the SC attempts to define the scope of information protected by the privilege.

Testimonial evidence is protected Non-testimonial evidence

o Schmerber Only evidence of a testimonial or communicative nature is subject

to the self-incrimination clause of the 5th. Government compelled, it is self-incriminating, so this issue is

whether on not the evidence is testimonial The Court held it to be non-testimonial

When thinking about whether something is testimonial, you divide the evidence in two categories

o Testimonial evidence v. physical evidence Physical evidence is not protected by the 5th…

testimonial evidence is The sound of someone’s voice, your handwriting, and your picture are

all physical evidence and can be compelled according to the Court It may be incriminating, but it is not testimonial

In 20-30 years, police may just put you under a machine to read your brain waves to see if you committed a crime

The basis for the distinction between physical evidence and testimonial evidence is rooted in the cruel trilemma…decipher whether evidence is testimonial by applying the cruel trilemma

Physical evidence cannot be true or false, it is just your blood…the suspect is not faced with the option to commit perjury and the 5th does not apply

Arguments against the distinction and supporting the protection of physical evidence

Privacy rationale Testimonial evidence and the cruel trilemma: PA v. Muniz

o SC finally articulated a rationale for understanding the Schmerber line of cases.

o The SC held that the line between testimonial and non-testimonial evidence must be determined by whether the witness faces the “cruel trilemma” in disclosing evidence.

Physical evidence does not face the cruel trilemmao SC held the D’s slurred speech to by physical evidence, because its

relevance was divorced from the content of the words themselveso With respect to the answer to the sixth birthday question, the SC held that the

D’s response was testimonial, and therefore that use of it as evidence at trial was error

o Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the trilemma of truth, falsity or silence and hence the response (whether based on truth or falsity) contains a testimonial component.

Compelled statements that could be true or false bring are testimonial evidence

o The incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response

Documents and other information existing before compulsiono Fisher and Andresen in effect overrule Boyd

Despite what Boyd says, there is no 5th protection for the content of voluntarily prepared papers

Voluntarily prepared papers are not compelled Fisher

o The 5th privilege against self-incrimination does not prohibit the production of records held by a third party.

Private paperso Both Fisher and Doe held that the 5th does not protect the content of

documents that were voluntarily prepared; even if production of these documents is compelled and the content would be incriminating, the 5th is inapplicable because the government did not compel the preparation (as opposed to the production) of the documents.

IMMUNITY; CONFESSIONS

When is the act of production incriminating?o While every production of documents in response to a subpoena admits

existence, control, and authenticity, it does not follow that the 5th prohibits every compelled act of document production. The 5th applies only if the compelled testimonial act of production could incriminate the person responding to the subpoena.

o A simple admission of the mere existence of documents is rarely incriminating

However, in certain unusual cases the fact that records exist can itself tend to incriminate

Required recordso Exception to the privilege against self-incrimination

Unlike in the 4th, were there is no exception to the 4th, there are exceptions to the warrant requirement or exceptions to the probable cause requirement

o Even if the documents are prepared under compulsion, their contents as well as the act of production will be unprotected by the 5th if the government requires the documents to be kept for a legitimate admin purpose that is not focused solely on those inherently suspect of criminal activity.

Procedural aspects of self-incrimination claimsDetermining the risk of incrimination In sum, the threshold for “tendency” to incriminate is not high, and as a practical

matter in most cases, it is self-executing. If a person says that testifying will tend to incriminate him, or might lead to evidence that would do so, it is an unusual case in which a court will disagree and compel that person to testify. But as the following case illustrates, there are indeed some unusual situations in which a statement’s tendency to incriminate is extremely doubtful.

Compelled self-identification and the tendency to incriminateo Hiibel

Statutes requiring suspects to identify themselves during police investigations do not violate either the 4th or 5th.

SC was not persuaded that the evidence was not testimonial However, SC held that disclosing his name would presented no

unreasonable danger of incrimination 4 Justices disagree with this in a dissent from the 5 person

majorityo reliance on the privacy rationale

police can make you show ID when they stop you Immunity

o Transactional v. use T is broader…anything testified about cannot be used in

prosecution of the witness Prosecutors are not so crazy about this because it shuts doors

U is narrower… Government cannot use their statements against you nor can they use your testimony to go get leads

it is difficult to prove that the government did not actually use any of their testimony in brining their case against a W

often times, two teams of lawyers will be used in immunity situations so that one team can independently prosecute so as to not use the immunized testimony in building a case against a W

Waiver of privilegeo Voluntary testimony waives the privilege for the simple reason that the person

is by definition not being compelled to testify. But there are sometimes difficult questions about the scope and existence of a waiver of the privilege.

Confessions and due process About 90% of criminal prosecutions end in a guilty plea Why would people confess?

o Theory from natural law There is something unnatural about forcing people to be their

agent of self-destruction The US SC has relied on three constitutional provisions in regulating the admissibility

of confessions:o (1) from 1936 to the present, the due process clauses of the 5th and 14th have

been used to exclude involuntary confessionso (2) from 1964 to the present, the 6th right to counsel has been applied in

determining the admissibility of a confession obtained from a D who has been charged with a crime

o (3) from 1966 to present, the 5th’s privilege against self-incrimination has been applied to statements made during custodial interrogation, unless the suspect, after receiving warnings, makes a knowing and voluntary waiver of the right.

The due process caseso The involuntariness test: Brown v. Mississippi

The due process clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.

Facts…extraordinary police brutality Confessions were ruled involuntary because they violated their

rights to due process In addition to being involuntary, the confessions were

unreliableo Due process analysis

Totality of circumstances analysis Three factors

o Personal characteristicso Actions of the policeo Circumstances of the confession

o The continuing relevance of Due Process protection Despite the SC’s eventual regulation of confessions through the 6th

through Massiah and through the 5th in Miranda, the totality of the circumstances voluntariness test is in some cases a suspect’s only protection from police coercion. The 6th does not apply until the suspect has been formally charged. Miranda applies only during police “custodial interrogation,” and that term does not cover all potentially coercive police practices. Moreover, Miranda rights can be waived, while the right to be free from coercion cannot. Thus, if the D has made a valid waiver of Miranda (and, if applicable, 6th) rights, his only protection from subsequent police pressure is the due process involuntariness test. Finally, the SC has found several exceptions to Miranda, so that a Miranda-defective confession can be used for impeachment, the fruits of such a confession are generally admissible, and the confession itself can be admitted if obtained under emergency circumstances. However, even where Miranda and Massiah are inapplicable, the confession is still excluded under the Due Process Clause if obtained through police coercion. Thus, the due process involuntariness test retains vitality today, and cases are still being decided under that doctrine.

Aside: This most important word in determining whether a confession is good is voluntary

Miranda As discussed above, the SC became dissatisfied with the due process-totality of the

circumstances test as an exclusive means of regulating confessions. After Spano, the SC applied the 6th right to counsel to exclude confessions. (Massiah. Escobedo.) But 6th protection does not begin until there is a “criminal prosecution” – the SC came to doubt whether the Amendment’s protections could apply to the investigatory stage, before the D has been formally accused of a crime. And it is during the investigatory stage that most police interrogation occurs and most confessions are obtained. The SC therefore began to shift to a different constitutional amendment – the 5th, which is no temporally limited to criminal prosecutions.

Massiaho D made incriminating statements while talking with someone wearing a wire

Statements were voluntary, thus there is no due process issueo SC ruled that the 6th right to counsel was violated

6th amendment right only attaches once you’ve been formally attached with a crime, or indicted

a government cannot pursue an undercover investigation of you once you’ve been indicted

Escobedoo Extended 6th right to Ds in custody

Mirandao After Miranda, Massiah and Escobedo become irrelevant

Mirandao The prosecution may not use statements from custodial interrogation of the D,

unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

o Facts Police interrogations were at issue here SC’s central concern…how can we trust confessions?

o Issue…Is this confession admissible?o D were questioned before their indictment, after their arrest, and inside the

stationhouse Does the privilege against self-incrimination apply here?

The SC holds that the 5th privilege does extend when you are in custody because custodial interrogation is inherently coercive

o Two things about this case (1) Its hard for reviewing courts to know what is going on in the

stationhouse room. The SC wants to impose some kind of order in the stationhouse room.

(2) People should not lose their rights unless they waive them. M requires police to educate people on their rights.

Miranda pop quizo 4 procedural safeguards of M

right to remain silent; statement may be used against you in court; right to an attorney; if you cannot afford an attorney one will be provided for you

if a person is know to have ample funds, he does not need to be informed of the right to provided a court-appointed attorney

o CON requires that people be apprised of their rights against compulsory self-incrimination

o People do not have use particular wording when apprising people of their rights

o Under o Custodial interrogations are inherently coerciveo M creates a bright line rule that without the issuance of warnings, confessions

are deemed involuntaryo M attaches to custodial interrogationo Both inculpatory and exculpatory statements are excluded without M

warningso Interrogation must cease when a lawyer is requested

o M gives suspect right to have a lawyer present during counselingo Police stop questioning when someone asks for a lawyer, they do not run out

and get you a lawyero Police have to give warnings no matter the amount of circumstantial evidence

that people are aware of their rightso The state of proving that a W has the heavy burden of knowingly and

intelligently waived her M rightso If police trick a D into waiving his rights, the waiver is invalido The lawyer does not have to be present in the stationhouse, but if the suspect

invokes M rights, a lawyer must be present before questioning proceedso Vote was 5-4

Recapo Very pro civil liberties/rights, suspicious of the police decisiono Not as controversial as it may have been because the FBI was already giving

Miranda-like warnings

Two ways the police can violate Mo (1) not reading the warningso (2) not abiding by procedure once the suspect invokes his M rights

Exceptions to the Miranda rule of exclusion

(1) Impeaching the defendant-witness Harris

o While the SC’s “non-constitutional” analysis is no longer viable after Dickerson, the impeachment exception remains intact.

o The SC found that the cost of excluding Miranda-defective confessions when offered for impeachment outweighed the benefit in deterring Miranda violations.

o Why is it constitutional for the gov to use this defective statement? Remember: the Court has changed A violation of M is not a violation of the CON

o Reasoning here Cost-benefit analysis

D is left with the dilemma of taking the stand and have the confession admitted for impeachment (while the jury tends to use it for other purposes) or not taking the stand and facing a greater risk of conviction.

Involuntary confessions and impeachmento Mincey

SC distinguished Harris and Hass and held that if a confession is involuntary, as opposed to merely Miranda-defective, it cannot be admitted even for impeachment purposes. The SC reasoned that the Due Process Clause operates to prohibit the use of involuntary confessions for any purpose.

Impeachment with prior silence

o Under standard evidentiary principles, a D can be impeached with prior silence if a reasonable person would have spoken at the time about the matter to which the D later testifies.

o Doyle SC held that after Miranda warnings are given, the Due Process

Clause prohibits the government from using the D’s silence against him, even for impeachment purposes.

(2) Fruits of the poisonous tree

Admitting the fruits of a Miranda violationo It is not okay to use fruit of the poisonous tree in violation of the 4th, but it is

okay in violation of M because M warnings are not required by the CON, but rather are just procedural safeguards making sure the 5th right is being respected.

Subsequent confessions: Oregon v. Elstad and Missouri v. Seiberto Seibert

The police technique of interrogating in successive, unwarned phases violates the requirements of Miranda.

No majority opinion in this case Does not overrule Elstad

Distinguishes it on the grounds that the M warning was not intentionally withheld in this case

o Questions after Seibert Seibert was a 4-1-4 decision. With no majority opinion, how is it to be

interpreted? The lower courts have held that Justice Kennedy’s opinion is controlling because it is the narrowest view on which five members of the Court could agree.

This means that a confession made after a Miranda-defective confession will be admissible unless, (1) the officers were in bad faith in not giving the warnings before the first confession; and (2) the second confession proceeded directly from the first.

The bad faith of the interrogating officer is the controlling factor

if two factors are not met, then Kennedy would not exclude the confession

pretty pro-M decision Physical evidence derived from Miranda-defective confessions

o In the following case, the Court holds that, even after Dickerson, the exclusionary rule does not bar the physical fruits of a Miranda-defective confession.

o Patane The Self-Incrimination Clause is not violated by the admission into

evidence of the physical fruit of a voluntary statement. If it is a confession, we do our Elstad/Seibert analysis

If police acted in bad faith, there is a presumption that the evidence will be excluded

If it is physical evidence, then it is admitted An Emergency Exception

o New York v. Quarles SC concluded that “overriding considerations of public safety” can

justify an officer’s failure to provide Miranda warnings, and that an unwarned confession obtained under such circumstances is admissible in the government’s case-in-chief despite Miranda.

The Quarles public safety exception to Miranda is apparently now justified as a necessity exception to the constitutionally-based Miranda rule – much like the exigent circumstances exception to the 4th requirement.

Open questions after Miranda What is “custody?”

If the D who confesses is not in custody, Miranda does not apply, and the admissibility of the confession depends on whether it was given voluntarily under the totality of the circumstances.

When the freedom of action is restricted in anyway. Arrest is custody

o According to Miranda, the test for custody is whether a person is deprived of his freedom of action in any significant way.

o Classic instance of custody under M. Terry stops: Berkemer v. McCarty

o SC held that Terry stops are not custodial for Miranda purposes. EXAM QUESTION

o Thus, the law distinguishing Terry stops from arrests (e.g., Dunaway) also determines whether custody exists under Miranda.

What is interrogation?o Harder than custody.o In addition to the custody requirement, the police must also be

interrogating the individual before the need for Miranda warning arise. Thus, the volunteered statements or “threshold” confessions (where the D walks into the police station and immediately confesses) are not barred by the fact that they were made without Miranda warnings.

Miranda: (1) custodial (2) interrogationo The following case sets forth the SC’s guidelines for determining when

interrogation can be found. Innis

Any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect constitute “interrogation” under Miranda and bring the Miranda safeguards into play.

Test…M prohibits not just express questioning or its functional equivalent

SC held that the suspect was not interrogated Two questions to think about

o Did the SC articulate the right test?o Was the test fairly applied?

Why did the majority find that the situation with the suspect was not the functional equivalent of interrogation?

o The suspect had no special interest in handicap children that the police officers would know to be reasonably likely to elicit an incriminating response

o Also, consider that the SC held that the intent of the police is not controlling, the focus is instead on the perception of the suspect

Does Miranda apply to undercover activity?o Bar examiners like this topico Perkins

SC held that Perkins’s unwarned statement was admissible because “Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons who they believe to be their cellmates.”

SC reasoned that Miranda was concerned with the pressures upon a suspect in a police-dominated atmosphere. If the suspect does not even know that he is talking to a police officer, the problems with which the Court was concerned in Miranda do not exist.

Miranda is concerned with pressure imposed by the police One of the virtues of Miranda, often recognized by the Court, is its

bright-line character. SC reasoned that the Perkins rule itself is a bright-line rule:

if there is an undercover investigation (and it is easy to determine when there is one) then Miranda is completely inapplicable.

Ambiguity about the right to have an attorney present throughout the questioning: FL v. Powell

o although the advice given to the defendant was not the clearest possible formulation of the right to counsel, the two advisements that the defendant could consult counsel prior to questioning and invoke his right to counsel at any time, in combination, reasonably conveyed the defendant's right to have counsel present, not only at the outset of interrogation, but at all times.

Waiver Waiver and the role of counsel

o The Miranda Court stated that the accused may waiver the rights to silence and counsel, but only if, under all circumstances, the rights are waved

“voluntarily, knowingly, and intelligently.” Thus, the validity of a waiver is question of fact in any particular case.

Three important words: knowing, voluntary, intelligently…waivero According to Miranda, a valid waiver will not be assumed from the silence of

the accused after the warnings are given, nor merely from the fact that a confession is eventually obtained. However, in Butler, the SC later held that neither an express statement of waiver nor a written waiver is required, so long as there is sufficient evidence to show that the suspect understood his rights and voluntarily waived them.

Waiver does not have to be express and can be inferred from the circumstances

Relationship of waiver standards to the test for voluntary confessionso Even after Miranda warnings are given, a confession can sill be coerced

under traditional due process standards.o Connelly

SC held that coercive police activity is a prerequisite to a finding that a confession is involuntary – that “there is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the 14th Amendment confession context.” Thus, “the voluntariness of a waiver of this privilege against self-incrimination has always depended on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word.”

Voluntary…the police did not force you to confess Definitions of knowing and intelligently are less clear

o The SC seemed more intent on saying what they are not Information needed for an intelligent waiver: the scope for the interrogation –

(Spring)o SC rejected the argument that the warnings must be tied to the planned subject

matter of the interrogation.o You can make a knowing and intelligent agreement to be interrogated without

knowing everything the police intend to interrogate you about Information needed for an intelligent waiver: efforts of a lawyer to contact the

suspect – Moran v. Burbineo SC concluded that Burbine’s waiver was valid despite the fact that he was not

informed that an attorney sought to contact him.o Once it is determined that a suspect’s decision not to rely on his rights was

uncoerced, that he was aware of the state’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

o What could an intelligent waiver possibly mean if no criminal defense lawyer would instruct someone to waiver their Miranda rights.

o Why did the Court think the waiver was knowing and intelligent? Because he responded that he knew and waived each of the rights

afforded to him by Miranda The role of counsel under Miranda

o It is the suspect who has the right to counsel under Miranda; and counsel has a role only after the suspect has invoked the right. Because the D never asked for counsel in Burbine, counsel had no independent rights to assert. His presence at the police station was irrelevant.

o Miranda does not require deceptive of D’s attorney However, police cannot make an AFFIRMATIVE

MISREPRESENTATION…the waiver would no longer be legitimate

This is under Miranda No requirement to inform the suspect of counsel’s efforts

o The Burbine Court declines to “extend” Miranda to require the police to inform the suspect of an attorney’s efforts to reach him. Such a requirement would be inconsistent with Miranda’s bright-line approach.

o The SC reasoned that the minimal benefit of being informed that counsel was attempting to contact D would come at a substantial cost to society’s legitimate and substantial interest in securing admissions of guilt.

o Policy grounds SC was concerned that confessions would be discouraged and

confessions are a good thing Consistent with the compromise reached in Miranda…attorney will

not be provided automatically, but it will be upon request and you will be informed of this right to an attorney

Waiver after invocation of Miranda rightso The government must show that this change of mind came from the suspect,

and not from police harassment. Where the suspect has invoked his right, the SC has shown far greater sensitivity to the waiver issue than in cases where there was no invocation.

o A suspect can invoke two rights in response to the Miranda warnings – the right to silence, and the right to counsel. The SC has held that the rules on waiver differ depending on which right is invoked.

o Invocation of the right to silence Mosley

SC concluded that the Miranda Court could not have meant that interrogation is forever barred simply because the D invoked his right to silence at some point. The SC concluded that the only sensible reading of above language was that the suspect’s right to cut off questioning must be “scrupulously honored.” If the right to silence was scrupulously honored, then police interrogation could be permitted and a knowing and voluntary waiver could be found.

SC indicated that the Court would not tolerate repetitive and continuous attempts to interrogate a D who wanted to remain silent. But he concluded Miranda should not be a per se bar to resumption of question.

What about the person who invokes their 5th right to silence but no his 6th right to counsel?

The SC produces a very fact-dependent analysiso Police immediately stopped asking questions after M

invocation; different police came in 2 hours later and asked about a different crime

2 conditions for a post-M invocation confession to be admissible

o (1) police have “scrupulously honored” suspects right to remain silent

o (2) waiver must be knowing and voluntary not a lot of guidance given here about what an officer can do

after one invokes their right to silence Right to silence must be clearly invoked; waiver can be implied from the

confession itself; and interrogation after warnings is permissible so long as waiver is ultimately found: Berghuis v. Thompkins

o Facts D was largely silence as police spoke to him for 3 hours

o SC held that this was not a violation of his M rights…you have to unambiguously invoke your right to silence

Invocation of the right to counsel: Edwards v. Arizonao Edwards

Additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during a custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused initiates further communication, exchanges or conversations with the police.

This is a different case according to the SC Police can bother somebody in some circumstances if you

invoke your right to silence If you are invoking your right to counsel, you are suggesting

that you need helpo The Court seems to think that such a person would

not change their mind about this absent police pressure

Very broad reading of Miranda by the SC Defining initiation: Oregon v. Bradshaw

o Edwards requires that a suspect “initiate” further communication before a waiver can be found. Whether a suspect had initiated reinterrogation is often quite a difficult question.

o The plurality clarified that a finding of initiation by the suspect was not enough to constitute a waiver under Edwards. The SC stated that even if the

suspect initiates communication, “where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the 5th right to have counsel present during the interrogation.”

o Thus, the SC uses a two-step analysis to determine whether a suspect waives his rights after invoking the right to counsel:

The first step is the bright-line prophylactic safeguard of the suspect-initiation requirement.

The second step is the familiar totality of circumstances test of a knowing and voluntary waiver. (Burbine test)

“What’s going to happen next?”… sufficient for initiation Application of Bradshaw

o Lower courts have consistently followed the view that any ambiguity in whether the suspect expressed an intent to reopen the dialogue should be construed in favor of finding an initiation.

Ambiguous invocation of the right to counsel: Davis v. USo As with invocation of the right to silence, questions sometimes arise as to

whether the suspect has in fact invoked a right to counsel. If there is no invocation, then there is no initiation requirement, and the analysis reverts to whether the D knowingly and voluntarily waived his Miranda rights.

o In Davis, the SC held that a suspect must clearly and unequivocally invoke the right to counsel in order to trigger the protections of Edwards. If the invocation is ambiguous or equivocal, police questioning can continue; and such questioning need not be limited to that necessary to clarify the suspect’s desire with respect to counsel.

Waiver after the suspect has consulted with counsel: Minnick v. Mississippio SC held that the protection of Edwards continues even after the suspect has

consulted with an attorney.o SC declared that under Edwards, police-initiated interrogation after an

invocation of counsel may occur only if counsel is actually present during the interrogation.

Which constitutional right to counsel is invoked? McNeil v. Wisconsin.o SC held that an accused who is arraigned and asks for counsel is invoking the

6th, rather than the Miranda, right to counsel, and there is a difference in the protections provided. As we will see, the Edwards initiation requirement is a protection available only if Miranda rights are invoked. It’s not available for invocations of the 6th right to counsel.

o The Miranda right to counsel comes from the M decision itself, it is not a constitutional right.

There is no constitutional right to a lawyer for people who have been arrested.

o It becomes a constitutional right after arraignment…6th Amendment right to counsel attaches then

The requirement of continuous custody for Edwards protection: MD v. Shatzero It held that a 14 day break-in-custody provided plenty of time for a suspect to

get reacclimated to his normal life, to consult with friends and counsel, and to

shake off any residual coercive effects of his prior custody. The inherently compelling pressures of custodial interrogation ended when the inmate returned to his normal prison life, so his release back into the general prison population after the 2003 interview constituted a break in custody. The two-and-a-half year break was long enough to render Edwards inapplicable.

Did Congress Overrule Miranda? Dickerson

o Section 3501…was the confession voluntary, looking at the totality of the circumstances

Purpose of 3501…overrule Mo Issues

Whether the M decision was legislative or constitutional? Does Congress have the power to overrule M?

C…Congress cannot overrule a constitutional ruling Should the SC overrule M?

o 3501 was passed two years after M was decided it was a law that was ignored

o Government’s argument In several post-M cases, the SC said the M rights were not

constitutional, but rather prophylactic This would mean that the M ruling itself is not constitutional

o D’s argument M rights are constitutional

States are required to follow M and must be constitutionalo SC holds that M is constitutional and cannot be overruled by Congress

SC does not overrule M because of stare decisis There has not been any kind of shift in policy, etc. to

warrant not following M M has largely is embedded in police culture and should be

given special deferenceo Although M warnings are not required by the CON, the M Court

announced a constitutional rule and because of stare decisis and the manner in which M has been embedded in our culture, the majority upheld M

IMPORTANT DECISION/RATIONALE Also note: Congress cannot overrule it Dissent (Scalia)

Scalia said the decision is “unprincipled law”

E. SIXTH AMENDMENT...RIGHT TO COUNSEL

Purpose of the lawyer in context of Mo in order to protect the right against self-incrimination

The Massiah Rule

In addition to the 5th and the Due Process Clause, the SC has also extended the protections of the 6th to some police-induced confessions.

In the following case, the SC explicitly relied on the 6th to exclude a confession Massiah

o Authorities cannot use incriminating statements gained from an accused through stealth after indictment and in the absence of counsel.

o Two years before Mo Constitutional rights, rather than one of those “wimpy procedural

safeguards”o Remember: historical progression of the analysis of confessions

Due process…6th…5th

Due process is still good law, just not the best for analyzing confessions

o SC holds that 6th prohibits the police from deliberate elicitation of incriminating statements by police after you have been formally charged with a crime (i.e. indictment [grand jury] or arraignment [i.e. judge])

6th right does not attach at an arrest

Obtaining information from formally charged defendants Brewer

o Once the right to counsel is invoked and the suspect refuses to answer questions, any evidence gained through subsequent interrogation is inadmissible.

o Test case designed to get the SC to overturn Mo Constitutional issue before the SC

No reason to look at M because the 6th applies Even though the SC had been using M for 10 years

o SC holds that there was a 6th violation because the police deliberately and designedly set out to elicit information from D

Just like an interrogation 6th is a constitutional right, rather than procedural safeguard On the meaning of “deliberate” elicitation

o The 6th prohibits a government agent from “deliberately eliciting” incriminating information from an “accused” in the absence of counsel or a waiver.

Application of the deliberate elicitation standard: Fellers v. USo SC founded that the lower court had improperly applied Miranda rules to a

Massiah case.o SC noted that the “deliberately elicited” standard was distinct from

“interrogation” and found that “there is no question that the officers in the case ‘deliberately elicited’ information” from Fellers. Accordingly, SC concluded that the lower court erred in finding that Fellers’s 6th right to counsel was not violated in his house. But, SC also concluded that the Court has not decided whether Elstad (holding that testimonial fruits of a M-defective confession are not subject to M’s exclusionary rule) applied to a 6th violation and therefore remanded for further proceedings.

o Most of the COAs have applied fruit of the poisonous tree doctrine to violations of the 6th

Use of undercover officers and state agents In one respect, the 6th is less protective in regulating confessions than is the 5th: it

applies only to those who have been formally charged, whereas M applies to all suspects facing custodial interrogation. In another respect, however, the 6th is more protective than the 5th: it limits the use of undercover tactics, whereas M only applies when the suspect knows that he is speaking to a police officer.

Waiver of sixth amendment protections In the M section, we noted two distinct waiver situations: (1) where D receives

warnings and waives his rights; and (2) where D receives his warnings, invokes his rights, and then subsequently is argued to have waived his rights. Similar situations arise in the 6th context.

If you have received the M warnings, you do not need to be told your 6th rights…because you already know them

o M requires a waiver to be knowing, voluntary, and intelligent So knowing and intelligent that the police have to tell you about your

rights Two situations in which 6th waiver standards might be different

o In Patterson…SC stated that two situations in which 6th waiver standards would be different from the standards applicable to M

(1) we have permitted a waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning (Burbine); in the 6th context, this waiver would not be valid.

(2) a surreptitious conversation between an undercover police officer and an indicted suspect would not give rise to any M violation (Perkins); however, once the accused is indicted, such questioning would be prohibited [and a waiver could not be found].

o 6th concerns the attorney-client privilege; 5th concerns protection from police protection

remember: 6th attaches after you have been formally charged thus, in those situations, coercive government conduct

would violate the attorney-client privilege Waiving 6th right to counsel after invoking it: Montejo v. LA

o In the following case, the SC reconsiders – and rejects – the extension of Edwards to the 6th waiver context. This means that there is a major difference between 5th and 6th waiver. If a charged D invokes his 6th right – typically, at an arraignment or other hearing – police officers remain free to approach him and seek a knowing and voluntary waiver. In contrast, if the suspect invokes his Miranda right to counsel – which could only be done when getting M warnings from police officers in the context of custodial interrogation – then there can be no waiver unless the D initiates a new conversation with the officers.

Montejo

o The court-ordered appointment of legal counsel does not preclude additional police-initiated interrogation outside the presence of counsel.

The 6th Amendment exclusionary rule SC found that the remedy for the violation should be the same as for the

violation of the 4th or M: exclusion from the case-in-chief, but permitting impeachment of the D’s inconsistent testimony.

F. IDENTIFICATION Constitutional protections afforded to innocent people

o We have been studying constitutional protections afforded to guilty people all semester

This Chapter examines the very real dangers associated with identification evidence and the safeguards that the criminal justice system has fashioned to try to assure that mistaken identifications error will not irreparably taint criminal identification.

Identifications and the right to counsel The Wade-Gilbert Rule

o A post-indictment lineup is a critical stage in a criminal prosecution, and the accused is entitled to the assistance of counsel at this time.

o In this case it is unclear whether the in-court identification was inextricably intertwined with the faulty pretrial lineup. If the in-court identification was independent, it may be admitted.

o If in-court ID is “tainted” by out-of-court ID then it must be excluded as well

o How do you know if the in-court ID was impermissible tainted? Totality of the circumstances test Prior chances to ID, similarity of conditions in prior chance to ID, etc

Kirbyo There is no right to counsel at police lineups held before the accused is

arrested or charged with a crime.o 6th right to counsel only attaches once arraignment occurso Due Process takes care of these rightso SC says it would be bad public policy to allow lawyers at pre-

arraignment line-ups because it would be unduly burdensome for police

Due Process limitations on identification evidence The Foundations of a Due Process Test

o Stovall v. Denno SC held that a due process-fundamental fairness approach would be

used in assessing identification procedures that are not governed by Wade and Gilbert.

o Simmons: The SC stated that the due process test protects against identifications that are “so impermissible suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

o SC almost never holds for a violation of due process in cases pertaining to lineups

Reliability as the linchpino Manson

If an identification is independently reliable, it will not be excluded solely because police identification techniques were suggestive.

The ID procedure was suggestive Was it necessary for some reason, like exigent

circumstances?...no No need for it to be suggestive

Choice between a per se rule and a totality of the circumstances test SC goes with totality of the circumstances test

Factorso Problems with eyewitness ID; deterrence effect; effect

on the administration of justiceo Reliability is the linchpin

(1) the length of time in which the accused was viewed; (2) the nature of the witnesses; (3) the circumstances; (4) the length of time between the incident and the identification; and (5) the ability to give an initial description of the accused (level of certainty).

Marshall dissent He does not agree that this ID was reliable because the total

amount of time the officer was face-to-face with the suspect was actually quite slight

The police officer also found the ID to be generalized Officer failed to mention the D’s accent.

Remember: the Due Process Clause is not a “best practices” doctrine, violations only occur once the minimum constitutional requirement has been violated

Aside: it is much more difficult for people to ID people who are not of their own race

This information may not have been available for the Marshall dissent

Methods police typically use for identificationo Lineupso Photo identifications

Are these reliable process? … not according to Gawande Scientific problems

o Repeated exposure to D makes you more confident in your identificationo Other people’s identifications tend to influence one’s identificationso People think their memories are better than they areo The more stressed out you are, the less reliable your memory is

Instance of science rebutting conventional wisdom

G. RIGHT TO COUNSEL (HISTORY); PROSECUTORIAL DISCRETION

The Right to Counsel Saltzburg’s organization is a little backwards 6th right attaches at indictment/arraignment

o post-indictment line-ups The early development of the right

o The right to appointed counsel in felony cases Powell

In a capital case, where the D is unable to employ counsel and is incapable of adequately defending himself, the Due Process Clause requires that effective counsel be appointed for him.

6th was not incorporated until Gideon Due Process rights were violated

A New And Sweeping Right and Its Limitso Appointed counsel for indigents in felony prosecutions

Gideon An indigent criminal D is entitled to court-appointed counsel. The right to counsel is a fundamental right. Betts is overruled

o Even at the time, it was inconsistent with precedent, i.e. Powell

The right to appointed counsel in misdemeanor caseso Hamlin

A person has a right to appointed counsel in any case in which he may be sentenced to jail.

Prosecutorial discretion