Schmo Con Crim Pro

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Constitutional Criminal ProcedureProf. Schmolesky

Spring 2007

Exclusionary Rule

Federal: Enforced when files a motion to suppress saying that evidence was obtained on

unconstitutional grounds

TX ER: TX Code of Criminal Procedure 38.23

(More below)

4Am is silent re: remedy ER isjudge-made

Wolf v. Colorado No implicit remedies in 4Am; states are free to experiment w/ remedies

Mapp v. Ohio A warrantless search is presumptively unreasonable (lots of exceptions);Court says all states must have ER

Rationale behind ER:

1. Deterrence: We are trying to deter illegal conduct by police

2. Judicial Integrity: dont want courts to be involved in something shady

Something either violates the 4Am or it doesnt and if it does, then we require ER

US v. Leon Now we have categories of 4Am violations

RULE: Right and remedy are divorced; some 4Am violations require ER and some dont

Good Faith Exception: If officer relies in good faith on the warrant (this isobjective), then the ER doesnt apply

Officers must have reasonable knowledge of what the law

prohibitsBefore we worry about whether there is good faith exception, must have a 4Am violation

Exceptions to Good Faith:

If officer misleads the magistrate, then it is not good faith b/c the magistrate hasto rely on what officer tells him

If the warrant is so facially deficient that no reasonable officer would think it

was valid, then good faith does not apply

When officer exceeds scope of warrant***The police dont have to be right, they must just act reasonably and within

the scope of the warrant

Where the magistrate wholly abandons his neutral role, good faith doesnt apply

GF Exception applies in two circumstances:

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1. When police are acting in objective good faith reliance on warrant issued by

magistrate

2. If police are acting in objective of good faith reliance on a statute that authorizes asearch or seizure

If there is error by the police ER will generally applyIf there is error by someone other than the police ER will generally notapply

TX 38.23 more favorable to b/c it provides more protection

Art. 38.23. [727A] EVIDENCE NOT TO BE USED.

(a) No evidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of

America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed

that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the

provisions of this Article, then and in such event, the jury shall disregard any such evidence so

obtained.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence

was obtained by a law enforcement officeracting in objective good faith reliance upon a warrant

issued by a neutral magistrate based on probable cause.

Must always argue both Federal rule and TX Rule

TX Good faith applies only where there is a warrant issued by a magistrate based

upon probable cause (so says the TX CCA)

Cases addressing when ER can/cant be used

Calandra: ER does not apply to grand jury

Calandra Test: Would adding exclusion in this setting be worth the cost?

Janus: ER does not apply to a collateral civil suitLopez v. Mendoza: ER does not apply in deportation hearings

These cases:

1. Limit use of ER to prosecutions CIC

2. Lay foundation for theoretical basis of decisions likeLeon

Plymouth Sedan v. Penn. civil forefeiture; action taken against a piece of property; soclosely related to the criminal proceeding that ER remedy applies

What is it that is subject to suppression?Evidenceis the only thing that can be excluded

Threshold Issues (Requirements for Applicability of 4Am)

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TX Good

Faith

Exception


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1. There must be state/gvt action

2. The person who is claiming a 4Am violation must have sufficient connection to

claim the benefit of US law (citizenship, people lawfully in the country)3. must have standing to raise 4Am claim

4. It must be search/seizure in order for claimant to vindicate right against

unreasonable search/seizure

Private Party Searches: private investigator; babysitter; etc. no 4Am argument against

private party actions

US v. Verdugo 4Am isnt limited to US territories US citizens abroad are entitled to

4Am protection

Alvarez Even if there is an illegal arrest, cannot suppress aperson, only evidence

What is a Search/Seizure?

***Katz v. US***

1. FBI puts listening device on outside of phone booth2. MAJ: 4Am protectspersons, not places look to see if person is exerting an

expectation of privacy society would consider reasonable

3. It doesnt matter if there is/isnt physical penetration the point is he expectsprivacy

4. Reasonable Expectation of Privacy not very bright line rule

2 parts to search:

1. Individual must show subjective expectation of privacy

2. It must be an expectation that society is willing to regard as reasonable

Standing: has theoretically been abolished and replaced with REoP

KEY to SEARCH/SEIZURE: good chance of having search/seizure if you use somedevice not commonly available that reveals info from location where someone would have

a REoP

Important to considerallof the circumstances

Cases:

Oliver argues Open Fields Doctrine should be eliminated b/c ofKatz; court said itwasnt a search/seizure b/c there was it was not reasonable to expect fences, etc., to keep

people out; so no reasonable expectation of privacy in open field

In TX: would argue under 38.23 that the officers violated a law of the State of TXby trespassing [see 38.23(a)]; therefore the evidence could not be used

(see also State v. Hobbs)

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Dow Chemical helicopter & sophisticated camera; not search/seizure b/c any person w/

means coulddo that

Kyllo search/seizure using thermal reading

US v. Karo installation of device is not search/seizure, but continued monitoring of abeeperis

CA v. Greenwood There is not REoP in ones garbage

Smith v. Maryland No REoP when you call someone b/c you have conveyed the numbers

to the phone company

Horton v. Goose Creek students dont have REoP in lockers and outside of cars (when

there are drug dogs); they do have a REoP re: the dogs sniffing the students

Mere Evidence Rule idea that things officers/gvt officials could validly seize had to firinto one of three categories:

1. Fruits of criminal activity2. Instrumentalities of crimes

3. Contraband

Warden v. Hayden MER is no longer good rule under this case; it is expanded to

anything probative of criminal activity

Boyd police cant seize s own statementsNOT good law anymore! 5Am protects

Zurcher v. Stanford Daily party was not involved in criminal activity but has evidence ofthe criminal activity

Search Warrant vs. Subpoena

SW: if evidence is there, likely to get it

Subpoena: dont need probable cause

Court says police could use search warrants; 1Am doesnt make you immune from gvt

searches; not many places are immune from gvt searches (maybe atty office)

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TX Re Search of Warrants & Newspapers

Some level of protection for media outlets against search warrants would have to

get subpoena duces tecum

18.01(e) A search warrant may not be issued under Subdivision (10) of Article 18.02 of

this code to search for and seize property or items that are not described in Subdivisions

(1) through (9) of that article and that are located in an office of a newspaper, news

magazine, television station, or radio station, and in no event may property or items not

described in Subdivisions (1) through (9) of that article be legally seized in any search

pursuant to a search warrant of an office of a newspaper, news magazine, television

station, or radio station.

Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for

and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a

penal offense;

(2) property specially designed, made, or adapted for or commonly used in the

commission of an offense;

(3) arms and munitions kept or prepared for the purposes of insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or gambling

paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition,

subject to the additional rules set forth by law;

(7) a drug, controlled substance, immediate precursor, chemical precursor, or other

controlled substance property, including an apparatus or paraphernalia kept, prepared, or

manufactured in violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

4Am Standing

US v. Payner must have someone who has 4Am personal interest to assert claim

We still use standing but court has struck down that vocabulary

Now we say REoP did thisparticular person have a REoP(without some sort of standing requirement, ER would be must broader)

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There is no automatic standing must establish

Rakas v. IllinoisJones if you are legally on the premises, you have REoP applied to an

apartment where Jones had key and a degree of control

This is a car Rakas didnt have REoP b/c he didnt have a key; no showing he had beenin car before; etc.

Fewer s can assert 4Am b/c you have to have some sort of privacy interest mere

passenger in a car doesnt have sufficient interest

TX: You do have standing as to stop of a car

MN v. Olson nonresident, overnight visitor has some sort of REoP, but not as extensiveas the owner

Probable Cause

Cant meaningfully define PC

For PC need to establish:

1. Information from credible informant

2. Reliable basis of knowledge

PC is collective officer conducting search/making arrest doesntpersonally have to have

PC

Illinois v. Gates letter from confidential informant; SC rejects two prong Spinelli test and

looks to totality of the circumstances (b/c PC is a fluid concept)

Aguilar/Spinelli if relying on informant must have reason to think this person is credible

and has basis of knowledge

Gates going to be easier to demonstrate PC b/c it is deliberately more ambiguous

How recent is the information?Staleness not really as much of a concern w/ warrants as it is w/ searches

***Cannot rehabilitate inadequate showing of PC if you didnt tell the magistrate***

AFFIDAVIT: typically the officer will fill out addidavit saying this is what I know and Ithink it adds up to PC

TX Four Corners Doctrine

Woods TX requires PC to be in written affidavit by applicant for the search

warrant

If there are further things discussed b/w the officer and magistrate, it is up to theofficer to make sure it gets into the warrant

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Good Faith Exception

Leon Ct said there was no PC but officers acted in good faith

Does not apply if officers lie to magistrate

o Franks v. Delaware - must show officer lied or acted w/ disregard for the

truth

PC requires officer to be reasonable, but not correct

Ybarra v. Illinois FACTS: Y was at bar when officers went to execute warrant

Ct says that just b/c Y is close to person to be searched doesnt mean he can also be

searched; for officer to protect himself, he can give the person the option to leave

When they frisked Y, they found drugs purpose of frisk is to find weapons that mightharm officer/others and cigarette pack is not something that seems like a weapon Plain

Feel Doctrine

Maryland v. Pringle P in car where drugs are found and confesses that drugs are his; it is

reasonable for officer to infer common enterprise w/ the three men

Lippert v. State (TX) presence is not probative enough in this situation where there is a

larger structure than a car

Particularity Requirement: warrant must particularly describe the things to be searched

& seized want to avoid general warrant

Individuals present in the area retain their 4Am rights and arent covered by warrant in

many circumstances

Purposes & Procedures Search & Arrest Warrants

Neutrality: PC must be determined by a neutral & detachedmagistrate

WARRANTS:

Allows officer to find out whether or not there is PC and existence of warrant

will give great deal of immunity against search and suppression

Provides proof of officers authorization and notice to person subject to search& scope of search

Return on the Warrant: copy of warrant and inventory of what officer took, how long ittook; allows review of search/seizure

Particular Description of Place to be Searched Particularity Requirement

Depends on circumstrances and nature of item involved

If item protected by 1Am, greater particularity required

Place to be searched must be described so that officer w/ search warrant can

with reasonable effort ascertain and identify the place intended.

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TX Particularity Requirement - 18.04WARRANT. A search warrant issued under this chapter shall be sufficient if it contains

the following requisites:

(1) that it run in the name of "The State of Texas";

(2) that it identify, as near as may be, that which is to be seized and name or

describe, as near as may be, the person, place, or thing to be searched;

(3) that it command any peace officer of the proper county to search

forthwith the person, place, or thing named; and

(4) that it be dated and signed by the magistrate.

Maryland v. Garrison 4Am doesnt require officers to be right; just requires them to be

reasonable

Knock & Announce Requirement (CL Rule)

Wilson v. AR USSC said knock and announce rule was requirement under 4Am

Timing of Warrants

TX - 18.06

EXECUTION OF WARRANTS.

(a) A peace officer to whom a search warrant is delivered shall execute it

without delay and forthwith return it to the proper magistrate. It must be executed

within three days from the time of its issuance, and shall be executed within ashorter period if so directed in the warrant by the magistrate.

(b) On searching the place ordered to be searched, the officer executing

the warrant shall present a copy of the warrant to the owner of the place, if he is

present. If the owner of the place is not present but a person who is present is in

possession of the place, the officer shall present a copy of the warrant to the

person. Before the officer takes property from the place, he shall prepare a

written inventory of the property to be taken. He shall legibly endorse his name on

the inventory and present a copy of the inventory to the owner or other person inpossession of the property. If neither the owner nor a person in possession of the

property is present when the officer executes the warrant, the officer shall leave a

copy of the warrant and the inventory at the place.

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Warrant must be executed w/o delay and w/in 3 days of time of issuance

expanded in 18.07 so that day of issuance and day of execution dontcount

Days you have:

Issuance Day 1 Day 2 Day 3 Execution

If there is a warrant burden on and presumptively reasonable

If there is not a warrant burden on gvt and presumptively unreasonable

EXCEPTIONS to Warrant Requirement

(Sometimes search/seizure is reasonable b/c oflackof PC BUT reasonableness trumps!Overriding requirement of 4Am is reasonableness)

PLAIN VIEW EXCEPTION observation by officer that doesnt constitute a

search if it is reasonable to make the observation and it must be immediately

apparent What about if they find unanticipated contraband may not have to get anotherwarrant to seize it b/c if the item is in plain view, it is reasonable for officers to take it

w/o another warrant

If the search is w/in the scope of what justified the officers being there in the

first place, the search is reasonable

Horton v. CA Court says inadvertent shouldnt be part of the plain view requirement

b/c it doesnt do anything to protect privacy interests of the parties involved

Arizona v. Hicks

EXIGENT CIRCUMSTANCES : if there is some sort of emergency thatrequires police to act w/o delay; reasonable for officers to act immediately

Immediately Apparent officers look around and see two very expensive

stereo systems; it is not immediately apparentthat they were items of a crime

The officers would have to move the systems to see the serial numbers on the

equipment

Plain Field outer garment pat downs; justified on reasonable suspicion

Justification for Arrest

Watson many times there is not warrant requirement; under CL it is clear that at least forfelony offenses you could make an arrest in a public place w/o obtaining a warrant

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Payton

Riddick to cross the threshold of the home, must have an arrest warrant; the

warrant is enough to allow the police to enterIf you are arresting the person named in the arrest warrant you may to go that persons

home and enter to make arrest but you must the arrest warrant to enter the home

Lankford police have warrant for two fugitives and enter 300 homes looking forthem

Warden v. Hayden if the police are in hot pursuit (have info or chased someone fromscene of the crime), then they can enter the home belonging to the person you are chasing

or any other home

So the suspect can run back inside his house but the police can chase him b/c they are in

hot pursuitSantana hot pursuit doesnt require much

Atwater v. City of Lago Vista Police officer could have given a ticket, but he chose to

arrest and it is up to officers discretion

TX: There are two offenses for which officer is requiredto give a ticket:1. Speeding

2. Open container of alcoholic beverage

Butthe requirement only applies if the offender has a valid TX drivers license

Tennessee v. Gardner If the suspect has committed a crime of violence or shown

immediate threat to an officer may shoot; sometimes they can shoot and sometimes they

cant; has to do w/ reasonableness under the 4Am

Gerstein v. Pugh Judge must review whether the arrest was based on PC and do promptly

b/c of intrusiveness of arrest

Gerstein Hearing: kind of determination that would be made by a magistrate if

officer had asked for a warrant; like ex parte hearings; based on hearsay, affidavit,

etc.; not subject to cross-X by the other side

What can the officer do afterthe arrest?

FIRST ZONE CHIMEL AREA

***Chimel v. California***

C comes home and officers arrest; they proceed to search the entire house,

finding evidence of the crime for which he was arrested They did not have a search warrant

The court said that you cannot do this the search area must be w/in the

suspects immediate control

The purpose is to allow a search within the reaching distance to prevent harm to

officers or others and prevent destruction of the evidence

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Chimel Area: defines the appropriate scope of search incident to arrest

o It is like a protractor w/ the as the center; the area that is reaching +

lunging

o The right to search the Chimel area is automatic

If suspect moves the Chimel area moves w/ himButif there is no valid reason for movement by the suspect (i.e. officers force suspect to

walk to certain area), then it is not w/in the Chimel area b/c it is being manipulated by theofficers

SECOND ZONE

Maryland v. Buie

Allows officer to do protective sweep to find anyone/anything in the immediateadjacent area

Purpose is to find people

Buie right is as automatic as the Chimel right

THIRD ZONE

Beyond that beyond immediate adjacent requirement of Buie, but must have reason to

thinksomeone is there

We allow a search incident to arrest for two reasons:

1. Suspect might have a weapon

2. Suspect could get to evidence that he could possibly destroy

Searches of homes incident to arrest

Vale v. Louisiana PC is not enough to get you into a house to search you need a warrant

Buie allows you to go inside a house if you are looking for a person

Segura v. US the courts do not require officers to use the lease invasive means to

accomplish their purpose it is either reasonable or unreasonable under the 4Am

Searches of cars incident to arrest

Officers have great authority to search a car; even when just making stop for trafficviolation

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Chimel Area

Buie Area immediately

adjacent

Beyond that


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NY v. Belton if the police make an arrest outside an automobile, then the Chimel area

includes the passenger compartment, including closed containers, but not the trunk

Thornton v. US extend the area b/c the was recently in the vehicle and the officer

searched it

Knowles officer gives ticket and then searches the car and turns up contraband; that is not

ok

If there is a reasonable basis for police action, we are not going to inquire as to the

true motive of the officer

Automobile Exception if officers think based on PC that the car contains evidence ofcriminal activity, then officers can search and the trunk is w/in the scope officers can look

anywhere the item mightreasonably be

Carney House on wheel is a vehicle (not a house)

Seizing items incident to arrest

If there is PC, then may seize suspects briefcase (so that it doesnt disappear) but in

order to open it, they must get a warrant

Other areas

Just because you are away from home you do not lose your expectation of privacy; youhave a reasonable expectation of privacy in some other places/things

Sanders container doesnt lose protection just b/c it gets put into a car

Ross police knew that somewhere in the car he had drugs, so it is a vehicle issue and nota container case overruled inAcevedo

Acevedo as long as it is a closed, opaque container it is subject to the warrant requirementaway from the vehicle; there is no difference between a brown paper sack and an attach

case

RULE: Officers can search a closed container w/in a car if it is reasonable that the

item they are looking for is there

EXAMPLE: If officer makes a stop for a traffic violation and there is no other evidence (all

we have is the violation) officer can make an arrest. At that point he can search anywhere

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Summary:

House need warrant to search

Briefcase can seize, but need warrant to open

Vehicle (auto exclusion) even if no exigency (even ifcar is no longer mobile) you do not need a warrant


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in the Chimel area and underBelton (w/o regard for particular circumstances) the officer

can search in passenger compartment, meaning closed containers in the passenger

compartment and even containers of the passengers

Inventory Searches

Cars (Impoundment)

Impoundment must be necessary

Officers motivation is a relevant factorThere must be a departmental policy (must have that kind of consistency) neutral

procedure that has been developed by the administration

Bertine Justification for inventory searches:1. Protect the officers from claims that they stole property left in the car

2. Protect the property

3. Public safety/community caretaking

TX: the police can impound: removal from accident scene; parking violation;

owner/driver requests/consents to impoundment; auto stolen or reasonable belief itis stolen; abandoned; hazard; driver removed and placed under custodial arrest and

no other alternatives are available

Scope: has the search been contained w/in reasonable bounds that justify an auto IS in the

first place?

TX: Autran v. State during an IS officers are notauthorized to open closed containers

Gill v. State police impounded a car and wanted to open the trunk; they went

through the back seat to get to the trunk; that is not ok

Steven v. State this kind of search was upheld when the officers had the key

These cases are very fact sensitive!

Jail Inventory

Illinois v. Lafayette it is a search justified w/ PC b/c of concerns re protecting the

persons property and security of the jail

US v. Edwards after E had been put into the jail population and he had already been

given his prison uniform, etc. officers came back and got his clothes to search for paint

chips; you cannot do this b/c you must have neutralreasons for the ISThe REAL JUSTIFICATION in this instance: exigent circumstances; shirt may be tossed

somewhere or no longer available and they dont want to risk losing evidence

Cupp v. Murphy blood under the fingernails case

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Rochin v. CA forcible extraction through the administration of a solution that induced

illnedd was not ok; whenever there is a situation where police use tactics that are arguablyshocking, look toRochin analysis

Rochin requires:

1. Deliberate conduct2. Deliberate infliction of pain or excessive violence

Schmerber v. CA blood-alcohol level4Am argument no warrant to get the BAL

Administrative Inspections

Keys to AI

1. Neutrality of treatmenta. We are not arbitrarily singling someone out

2. Balancing Test the gvts need for the searches against the intrusiveness of actiontaken by officer (Need vs. Intrusiveness)

a. If the intrusion is low and need is high likely to be reasonable w/o PCwarrant

b. As the intrusion goes up or need goes down likely that more traditional

requirements of 4Am will go up

Camara

Building code requirements; to make the system meaningful, must have

inspections

Requirement: sometimes a warrant is required even though PC is not required

If the premises to be inspected are the kind that were meant to be covered by

the procedure, then this person is being treated the same as everyone else

PC may be: It has been 10 years since we inspected this building; there is a

requirement that we inspect every building every 10 years and the PC is that the

buildings on this block are up for inspection this year

Border Search Cases

Authority for gvt officials to engage in unindividualized suspicion b/c need is greatCan ask people to open suitcases, trunks, etc.

Real Suspicion strip searches

Clear Indication body cavity search

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Need

Intrusiveness

Higher 4Am standards


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Two ways of going about these searches:

1. Roving patrol

2. Fixed checkpointFixed checkpoint more likely to get court approval b/c it is more neutral than the roving

patrol (which is subjective)

Once the car is stopped:

1. Vehicle search

2. Brief inquiryBrief inquiry is much less intrusive

Stop & Frisk

Terry v. Ohio

Now dealing with pre-arrest encounters

FACTS: officer sees the men on the street who were looking in the store

window and just acting shady; he did not have PC b/c he didnt see anycriminal activity; officer approaches the men and asks them some questions

o ***Then the officer pats down Terry; he detects something that might be a

gun; it is a gun and he now has PC to arrest; the detection justifies thereaching in and taking

TC denies suppression motion; SC affirms

What do we allow police to do when they dont have PC?

o argument: police can do nothing until the police have PC they can only

engage in action(s) that do not constitute search/seizure

o Gvt. argument: we can do whatever we want until the arrest occurs and the

4Am comes into play

The Court rejected both arguments this case represents a policy compromise

The court attempts to say that police can act w/ less the PC; but what the

officer can do is less as well

Theory of compromise: great need for more flexible approach and response by

police officers not sufficient to say when you have PC you can arrest; butbefore that you cant do anything that constitutes search/seizure

Terry stop & frisk must be less intrusive than an arrest

o It must be brief cannot engage in Chimel area exhaustive search; limited

to pat down type of search and no automatic right to engage in the pat down

Court says there is search/seizure whenever a police officer accosts an

individual and restrains his freedom to walk away, he has seized thatperson.

Officer does not necessarily need PC but there must be reasonable

suspicion

RS is not as high of a standard as PC (doesnt take as much to get RS)

o Must have specific and articulable facts

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If the officer has RS, a brief detention is okay and the outer pat down is also ok;

either suspicions will be resolved and officer will let him go ORnothing dispelsthe suspicions and RS ripens to PC, leading to arrest

Florida v. Bostick

B on bus and officers get on

Free to Leave Test all B has to do is get up and leave

There is no gvt action that confines B to the busINS v. Delgado officers go to a factory where they think illegal aliens are

working; there is no gvtl action that confines them

Bostickchanges Free to Leave to Free to Refuse

There must be state action that accounts for the confinement

CA v. Hodari we need to things for a stop/detention:

1. Actual application of force that detains

2. Submission to that authority

Wardlow individual is free to leave unless the officer has a justification to detain you;

however, flight is different than the decision to walk away calmly b/c it raises a differentkind of suspicion

Florida v. JL

Informants they are used in Terry situations and less is required than other

issues w/ informants

Generally an anonymous tip is going to be acceptable

Alabama v. White

o An informant who gives info that could be innocent activity is enough b/c it

is more specific and it is a prediction of things that have not yet happened

***Hensley

Terry stops are not limited to RS of crimes that about to occur/are occurring/justoccurred RS here was that he appeared to match the description of one who

committed a crime months before

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In analyzing these encounters, must decide what level of intrusion has occurred:

1. Encounter: simply a consensual b/w the officer anda private citizen and there is no search no 4Am

requirement

2. Detention: goes far enough that it is on 4Am radar

but only to the level of an investigatory stop RS and no

warrant


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As long as there is RS that crime is about to occur or has occurred, there is

justification for detention

What can an officer do during a detention?

Ask person to ID themselves

o If he refuse, officer may take reasonable steps to ID the individual canreach into his pocket and get his wallet (Hibel)

May ask person about things that cause officer to be suspicious

Does not have to give Miranda warnings

Officer may ask to engage in a search (Ohio v. Ramirez)

o Non-custodial traffic detentions are analogous to Terry-type stops

Pat down (outer garment) limited; have to have RS to pat down

o Dickerson if officer makes a plain feel observation (even as to

contraband) then taking that item is reasonable

o Long where the officer has RS to stop a car and RS to believe there is a

weapon, officer may search anywhere in the passenger compartment where

the weapon might be limited

Bring in eye witnesses to place that you have detained the individual

Can do something to verify a crime has taken place

The person does not have to respond to officers questions

***US v. Place***

Is dog sniff of a container a search/seizure? NO

Difficulty: unduly long detention of the suitcase; since officers knew in advance

where Place would be, they could have had a dog there ahead of time and

limited the intrusion

Two important things:1. If there is a less intrusive way of accomplishing what they are doing, might make

Terry encounter unreasonable

2. The court has authorized temporary detention of personal effects under Terry

Caballes Question ofduration is often raised to discuss reasonableness

While the court is reluctant to put a specific time limit on what is reasonable, somewherearound 15 minutes is probably reasonable; but past that the court will scrutinize whether

the detention needs to be backed by PC b/c it is at that point an arrest rather than Terry

encounter

Very fact specific are police diligently pursuing reasonable means of determining if

there is a problem, etc.?

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Consent Searches

Exception to 4th amendment requirements (PC/Warrant) if the consent was voluntary

Cops dont need RS or PC to ask for consent

Cops can walk up to everyone on the bus w/o a warrant and ask for consent.

Consent is an issue of fact

Questions to ask:

1. Was the consent voluntary?2. Was the consent given by an individual that has the authority to consent? (Did the

police reasonably believe the individual had authority to consent?)

3. Did the police stay reasonably within the bounds for which consent was given?(Did they stay w/in the scope of the consent?)

Schneckloth v. Bustamonte

Gives a warning ticket but no arrest. Therefore no authority to search

automobile. Custodial arrest triggers automatic Chimel search (underBelton)

officers search the compartment.

Non-Custodial does not trigger this.

says he didnt know he could refuse a cop and if he didnt know then the

consent is not voluntary.

Strict standard of waiver must have voluntary relinquishment of a known

right.

Because consent searches are more on neutral ground, and individual hasntbeen taken into custody yet, no Miranda warnings necessary

Custody = police dominated environment.

If the says yes to the search, his rights are waived

The mere refusal of consent cannot provide PC or RS to the police

Again, however, there is a difference b/w refusal of consent and flight

Bumper v NC

Officers arrive and say they have a warrant; s grandmother allows them to

search

Turns out no warrant. The state argues consent.

Court says it is not consent, it is aquiessence to a claim of authority.

Who has the authority to give consent?

IL v. Rodriguez Girlfriend has no authority to give consent to search ex-boyfriends

apartment; consent must be given by someone with authority.

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Who can consent to a search of your home?

People you live with.

If you have given a key to your visiting brother but not search your bedroom.

Live-in boyfriend/girlfriend.

Dont have to have an ownership interest to be able to consent

Children may have authority to let police in house but not search the bedroom;this will be apparent to an officer that the kid doesnt have authority to say they

can search the bedroom.

Hotel room the management can go in the room while you are gone; but they

cannot give consent to the police to search your room (after checkout, the

management can let them in)Landlord cannot consent to search on your behalf

YOU have a reasonable expectation of privacy during the period of your

rental.Can only enter for limited purposes does not equal right to enter for ANY

purpose.

It is the officers reasonable belief of the situation.

Jimeno Reasonable to assume the cop will open containers in the car; however, if it

would not be reasonable if it is in a locked container

It is a question of reasonableness.

Wiretapping & Bugging

Secret Agents: 4Am issues raised when using these techniques based on consent

Deception: if deception destroys voluntariness, it may destroy consent; deception by

officer does not destroy validity of consent

Lewis undercover officer goes into buy drugs; if you invite someone in you have

consented and dont have a reasonable expectation of privacy

On Lee someone wired w/ officers listening; same as unwired agent there is consent

Hoffa case government can use secret agents and offer inducements in the investigatory

phase but not the adjudicatory phase

Electronic Surveillance

Title III Ominous Crime Bill (1968)

2511(c) if undercover agent agrees to wear a wire, the statute doesnt apply and

4Am doesnt kick in b/c ofconsent

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2511(d) statute applies to private individuals; you can record your own

conversations and it doesnt violate this statute

2511(f) statute doesnt affect foreign intelligence FISA sets up independent and

secret court and issues its own warrants

2515 ER is much broader by statute than it is under 4Am

States can have their own wire tapping laws, but they must comply w/ the federal

rules

2516 people who can seek electronic surveillance are limited; it is much more

restricted than normal warrants

There is a list of things for which you can get an electronic surveillancewarrant

Confessions by - Admissibility

Due Process of Law

Voluntariness line of attack due process argument may be made to any

statement at any time Due process has the best ER coerced confession cant be used in any

proceeding norcan any evidence derived from it be used

Major Drawback: establishing a violation

Connelly any coercion was not b/c of actions of law enforcement officials; there must be

some sort of state action

Torture if there is violence or threat of violence there is an involuntary confession

Courts have recognized subtle forms of coercion:

Prolonged interrogation w/o providing basic amenities

Promises from officers

Miller v. Fenton Must look at exactly what was said/done in a particular case, and mustlook at the particular individual involved cases arevery individualized and looked at

on case-by-case basis

Officer providing false information to does not go too far

There is a case that says when police invented a scientific test it did not go too

far

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4 Grounds of Attack on Admissibility of Confession:1. Due process of law

2. 5Am right against self-incrimination

Miranda3. 6Am Massiah

4. TX-only ground 38.22


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5Am Right Miranda

Miranda v. AZ

FACTS

the prosecution may not use statements, whether exculpatory or inculpatory, stemming fromcustodial interrogation of the unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination. By custodial interrogation, we mean

questioning initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way. As for the procedural

safeguards to be employed, unless other fully effective means are devised to inform accused

persons of their right of silence and to assure a continuous opportunity to exercise it, the

following measures are required. Prior to any questioning, the person must be warned that he

has a right to remain silent, that any statement he does make may be used as evidence against

him, and that he has a right to the presence of any attorney, either retained of appointed. The may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and

intelligently. If, however, he indicates in any manner and at any stage of the process that he

wishes to consult with an attorney before speaking there can be no questioning.

Under 5Am argument, we do not look at each case individually to determinewhether the in those circumstances knew of his rights

Unless you give the warnings, there is an irrebuttable presumption of coercion must also give all the warningsIn order fully to apprise a person interrogated of the extent of his rights under this system

then, it is necessary to warn him not only that he has the right to consult with an attorney, but

also that if he is indigent a lawyer will be appointed to represent him. Without this additional

warning, the admonition of the right to consult with counsel would often be understood as

meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.

Applies to all statementsNo distinction can be drawn b/w statements which are direct confessions and statementswhich amount to admissions of part or all of an offense.

General on-scene questioning is ok Spontaneous statements continue to be admissible

Volunteered statements of any kind are not barred by the 5Am and their admissibility is not

affected by our holding today.

Must have custody and interrogation

To comply w/ Miranda, the must understand and have the capacity (cant

have language barrier, intoxicated, incompetent, etc.)

o State has the burden to show that warnings were understood and voluntarily

waived

Waiver

o Must have express waiver silence alone does not constitute waiver

there is no room for the contention that the privilege is waived if the individual answerssome questions or gives some information on his own prior to invoking his right to remainsilent when interrogated.

Henceforth any time there is custodial interrogation by law enforcement officials,familiar warnings from the opinion must be given to all suspects and court wont pause to

determine whether warnings were necessary in a particular case; failure to give warnings

prior to custodial interrogation creates a conclusive presumption of coercion

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Reverse Line-Up police put in lineup and have someone falsely ID as perpetrator of

crime; suspect so concerned re false accusation that he makes admission of crime officersactually suspected committed we dont know if this is outlawed byMiranda

Threshold Requirements ofMiranda: Custody & Interrogation

1. Custody

Would a reasonable person feel he was deprived of his freedom in a significant way?

Beckwith v. US

Although B was the focus of the conversation, he was in his own home and

Miranda applies when the suspect is in a police-controlled area

You may be in your home

Orozco in the middle of the night police were in his bedroom

Must look at all circumstances and determine whether a RPPerson under thecircumstances would think he had been deprived of his liberties in a

significant way

CA v. Beheler officers took B to station and court said that B was just getting a ride from

the officer so no custody

MN v. Murphy Probation officer

Yarborough v. Alvarado

Minor; his parents took him to the police station

Do not rely on this case re custody

Berkemer v. McCarty - is stopped for traffic violation and asked a question that calls for

an incriminating response (i.e. Have you been drinking?); dont have to give Miranda

warnings b/c Terry encounter is temporary

2. Interrogation

RI v. Innis after I was Mirandized, he invoked his right to an atty; under Miranda all

interrogation must cease

TEST: Interrogation refers to direct words/actions by police (other than those

normally attendant to arrest/custody) that police should know arereasonably likely to elicit an incriminating response

normally attendant to arrest and custody What is your name

words or actions might not be verbal; objective test

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Illinois v. Perkins Perkins is in jail on other charges than the subject of interrogation;

interrogation is by inmates working for the state

P doesnt have a 5Am right b/c it is not compelled he cant be in a police dominated

environment if he doesnt know that he is involved w/ police he is not in a coercive

environment

Penn. v. Muniz

Routine Booking Exception: officer can ask questions and if blurts out incriminating

response, that is volunteered statement

Dont have to give Miranda warnings before a field sobriety test it is voluntary and

is not of testimonial nature

Post-Miranda cases generally have undercut Miranda

Important areas in which Miranda has changed

1. Effect of violation of Miranda what kind of ER if Miranda violated?

2. Miranda treated as less important than others3. PUBLIC SAFETY EXCEPTION

4. Waiver cases

Harris andHass if officers get a statement in violation of Miranda, it may still be used

for impeachment

Duckworth it is ok if the officer does not give the exact wording of the Miranda opinion

so long as the warning he gives covers all the bases

Fare v. Michael C. if the warnings are given to suspect and suspect invokes the right, you

must stop interrogating immediately suspect must use a degree of clarity to invoke his

rights

Colorado v. Spring one Miranda warning is ok in a single interrogation no matter how

many subjects are covered

***Michigan v. Tucker

Police didnt give Miranda warnings b/c Miranda had yet to be decided

Prosecution didnt use the statement itself; rather used a name from the

statement and they introduced that persons testimony

Fruit of the poisonous tree does not apply to Miranda violations b/c the rule is

designed to protect 5Am values and not the 5Am itself

***NY v. Quarles

Ct says no Miranda violations when the questioning is prompted by concernsfor public safety public safety exception to Miranda

If questioning is prompted by reasonable concerns for public safety, might be

able to say the concern is not just to develop evidence about crime but wanted

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to know that some else is/isnt in danger, and we cant do that w/o more

information

Waiver

Miranda required express waiver

Post-Miranda cases waiver can be implied as long as there is no impediment tocomprehension and it appears the statement is in no way coerced by officers

North Carolina v. Butler someone who will tell you orally but wont put it in writing;Miranda doesnt require statements to be written

If you encounter this type of situation follow up with warnings to make sure that

suspect fully understands Miranda warnings and that what hesays even if notwritten may be used against him

Michigan v. Mosley

If the suspect invokes his right to an atty, interrogation must cease immediately,but for how long?

M said I dont want to talk to you but did not ask for an atty

Two hours later officers went back, gave new set of warnings and asked about a

different crime

Court said that:

o Significant time had passed

o Different subject

At a minimum, need to have a new set of Miranda warnings w/ new

interrogation and have to have some appreciable passage of time

Edwards v. AZ E asserted his right to counsel

Officers ceased interrogation until next morning when they approach him againand ask if he wants to make a statement

They had the minimum passage of time, new Miranda warnings, officers

ceased interrogation

However the important difference was invocation of different rightAZ v. Roberson

R says he wants to speak to atty; passage of time; then officers try to question

about a different offense

Miranda said you have right to counsel prior to interrogation if you have

invoked that right and no counsel has been provided and there is another

attempt to interrogate, that undermines Miranda

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Makes a difference which right you invoke

(1) Silence vs. (2) Right to counsel

Minick v. Mississippi

M taken into custody and interviewed by FBI afterwards M is appointed atty

and talks to him

MS law officer comes by to talk to M re unrelated charges; gives M Miranda

warnings and M makes incriminating statement

If you invoke the right to counsel, police may not initiate any furtherinterrogation

o BUT rule can be set aside if shows willingness to talk about criminal

investigation

US v. Green decision from lower ct that is good law; even if you have officers that might

not know anything about the other interrogation, it is a violation to even approach suspectand ask questions

What is initiating further communication w/ the police?

Oregon v. Bradshaw B says What is going to happen to me now?

Officer says you dont have to talk, let me remind you of your rights, you may

want to take lie detector test

Court said it amounted to initiation on Bs part

Davis v. US

D says maybe I should talk to a lawyer and officers clarify what he means

First part comes in as voluntary statement; after he says maybe I should talk toa lawyer the stuff doesnt come in

Edwards rule only invoked if there is a clear statement of desire to have atty

prior to any interrogation but what D said does not constitute invocation

6Am Right Massiah

(Massiah &Escobedo actually occurred beforeMiranda)Massiah

FACTS: M doesnt know he is talking to police b/c he is talking to a friend who

is wired

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If you invoke right to remain silent:

Officials can start interrogation again if there is passage of time and a new set of

Miranda warnings

If you invoke right to counsel:

Officials may not initiate any interrogation after the invocation of the right unless

knocks down that barrier by initiating the discussion


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If police can hear through wire, it does not change the 4Am calculus b/c of

assumption of the risk during the investigatory phase

However, balance shifts when you hit the adjudicatory phase

o Do we have a formal charging instrument? Indictment? Information?

When we hit the adjudicatory phase, officers are running behind the back

of counsel; tactics that are permissible in the investigatory phase are notpermissible in the adjudicatory phase

Escobedo

FACTS: E asked for atty; and Es atty was trying to get to his client and officersprevented him from getting in

If asks for counsel or if s atty is trying to see and the police deny the

request, violation of 6Am right to counsel

Criminal justice system that relies on this kind of admission from accused is not

fair and state should have the burden of developing the case against w/o his

admission

If asks for a lawyer, officers cant continue interrogation w/o providingcounsel

Brewer v. Williams Christian Burial Speech

W had abducted a girl; turned himself in per his atty and he was arraigned

now in adjudicatory phase

Christian Burial Speech; Is Christian Burial Speech interrogation?

o If yes dont have to go further

o If no it is a voluntary statement

This statement was clearly aimed at Williams (not at another officer as in

Ennis) Police cannot deliberately elicit evidence from suspect once the suspect is in

the adjudicatory phase absent a valid waiver. There can be no valid waiver if

police have initiated interrogation after invocation of right to counsel

Majority says the deliberate violation of prior invocation of right made by

suspect and made w/ counsel that there would be no interrogation

Patterson v. Illinois

You waive 6Am rights the same way you waive 5Am rights

Miranda does not apply unless knows he is talking to authorities; that is not

the case w/ Massiah -- is protected even w/o that knowledge

Michigan v. Jackson

J appears before judge and one of the first thing judge does is ask J if he has an

attorney or would like one

Edwards Rule applies by analogy to 6Am context he has invoked his right to

counsel and later questioning by officers violated 6Am right to counsel b/c no

valid waiver after right was invoked

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McNeil

Once you appear in court w/ an atty, officers cant interrogate re an offense inthe adjudicatory phase

6Am violation is generally somewhat limited b/c theRoberson rule doesnt

apply police can ask about a differentoffense

If McNeil had been given Miranda warnings and he had invoked his right tocounsel, thenEdwards/Roberson rule would continue to apply but that comes

from 5Am

US v. Henry

H is in jail and the state puts a jail plant in the cell; state gives plant specific

instructions not to ask questions but just to keep his ears open

Have to determine if the statements were deliberately elicited to decide if the

statements violate the 6Am

o Kuhlman v. Wilson

Had very similar facts

Court said that if you dont do anything to pull the information fromthe , it is simply a spontaneous statement, so no 6Am violation

This court reaches different conclusion

The plant was being paid on a contingent fee basis

Hs interrogator is not a passive listening post but rather deliberately elicited the

evidence

Deliberately elicited is more easily reached than interrogation

Maine v. Moulton

M is in conversation w/ co-; state has made a deal w/ the co-, who is wired

for sound when meeting w/ M There is a series of comments re the offense for which M has been indicted (and

therefore in the adjudicatory phase)

During the meeting, M suggests that some state witnesses should be knocked

off those statements are investigatory b/c not related to the adjudicatory-phase

offense

Miranda protection doesnt apply b/c no custody; but Massiah does apply

Tex. v. Cobb

We determine whether something is the same or different offense in thesame way we determine double jeaopardy we look to the elements of the

offense and not the conduct of the to determine whether the same offense isinvolved

Some key differences b/w 5Am & 6Am

5Am/Miranda 6Am/Massiah

Must be in custody? Custody requirement No custody requirement

Must know he is dealing

w/ officers/authorities to

YES NO

(it applies when using

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have the protection? undercover agents, moles,

etc.)

Can the s atty invoke the

right to counsel?

NO MAYBE

Is there a public safety

exception?

YES NO

Does the fruit of the

poisonous tree rule apply?

NO can use derivative

evidence

YES derivative evidence is

not admissible unlessprosecution proves it is not

FPT

TX-Only Ground 38.22

Essentially a Miranda rule, with two important differences:1. There is a 5th warning required that officer must advise the suspect that he has a

right to terminate the interview at any time

2. Requirement that to be admissible the statement must be in writing or if oral mustbe recorded

Fruit of the Poisonous Tree Doctrine

GEN RULE: FPT Doctrine is the idea that derivative evidence derived in an

unconstitutional way is not admissible.

Miranda Violations

Miranda is the exception to the usual FPT doctrine state may introduce derivative

evidence gained from interrogation that violates Miranda

There are three ways the state can un-poison the fruit:

1. State can show an independent source the state shows that it got theinformation from another source (rather than )

2. Inevitable discovery the state shows that the information would have been

discovered anyway

3. Attenuated connection

What if the derivative evidence is another confession?

Oregon v. Elstad

FACTS: officers have PC to believe E is involved in a burglary; went to Eshome and speak to E (w/ Es permission); E makes admission of guilt atofficers prompting; a few hours later E gets Miranda warnings for the first time

and makes another and fuller confession

Lwr Ct: says FPT controls

US SC disagrees

That first statement may be admissible

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GENERALLY: FPT doesnt apply to Miranda; however, if the derivative evidence

is a second confession following a confession that failed to complyw/ Miranda, then the court may consider it a continuous

interrogation w/ midstream Miranda warnings that are insufficient

TX/38.22

38.22(3) Derivative EvidenceSubsection (a) of this section shall not apply to any statement which contains assertions of

facts or circumstances that are found to be true and which conduce to establish the guilt of

the accused, such as the finding of secreted or stolen property or the instrument with whichhe states the offense was committed.

To use the derivative evidence, state must prove:

1. Assertions of fact by statement of

2. Assertions must be found to be true3. Statements must conduce to establish guilt of the

If you dont have all three then the provision doesnt apply

Impeachment

Evidence obtained in violation of 5Am or 6Am may be used to impeach even though it is

excluded from the prosecutions CIC

NJ v. Portash

Involuntary confession underdue process cannot be used for any purpose,including impeachment

Violation of immunity agreement cannot be used for any purpose, including

CIC and impeachment

Can you impeach with SILENCE???

Griffin v. CA prosecutor in criminal trial may not point out to jury that did not testify attrial b/c it puts a price on the s 5Am right not to testify

Jenkins v. Anderson

Fletcher v. WeirIn both cases: victim killed and for a couple weeks did not turn himself in, then at the

trial claim it was self-; prosecution tries to use that against the

USSC There is nothing unconstitutional about this; states may make their ownevidence rules, but under constitutional law prosecution may ask about this

Doyle v. Ohio he is given Miranda warnings; he invokes right to silence, and prosecutioncannot use that against him b/c as a matter of due process it is fundamentally unfair

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TX:

Sanchez v. State CCA ruled that when is silent after arrest it is implied that there is aninvocation of right against self incrimination under the TX constitution limitedto post-

arrest silence

Carter v. KY you are entitled to no adverse interrogation from silence jury instruction

Lakeside v. Oregon you are not entitled not to have no inference from silence instruction

if you would prefer not to have that instruction, too bad

Identification Procedures

Wade, Gilbert & Stovall all three cases were decided on the same day in 1967

Two rules created:

1. Stovall Rule

2. Wade Rule: cannot have an adjudicatory phase ID procedure (that is cant have

a live person ID procedure after the beginning of adjudicatory process) unlessthere is an atty present absent a valid waiver of the right to have counsel present

The court protects against the evil of unnecessary procedures that prompt misidentification

US v. Wade

FACTS: bank robber, W put into lineup with several other people who more or

less look like him; some of the witnesses saw W in the hall w/ police before the

lineup

5Am argument

o They have W say the words witnesses say robber said

o No violation of 5Am rights b/c non-testimonial in natureo Had they only made him do it it might be different; but all the others in

the lineup had to do the same

Wade Rule requires that there be an atty at some ID procedures; designed to

help prevent evil of mistaken ID caused y overly suggestive procedures

It is applied like Miranda in the sense that we dont look at the particular

circumstances/not case-by-case basis (like we do use in due process cases) if

there is no atty present, it is a per se violation and the out of court ID cannot beadmitted at trial

Factors to consider when determining whetherin-courtID should be allowed:

o Prior opportunity to observe the alleged criminal act

o Existence of any discrepancy b/w any pre-lineup description and the s

actual description

o Any ID prior to lineup of another person

o ID by picture of the prior to lineup

o Failure to ID on a prior occasion

o Lapse of time b/w alleged act and lineup ID

The purpose of these factors is to determine thesource of the witness memory

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Attys Role

Atty does not have the power to prevent his client from participating in a lineup

What do you do at a Wade lineup? Two perspectives:

o Active presence make objections, etc.

o Passive presence (generally adhered to) You can make suggestions to police if you see something that

needs to be fixed, tell officers to fix it

You do not waive if you dont object

Wade Rule undercut by:1. Kirby andAsh cases

Kirby v. Illinois

This is a show-up rather than a lineup meaning it is a one-on-one lineup

procedure

It is rarely favored; but excused when it isprompt if someone isapprehended near to the scene of the crime, the theory of the immediate IDis that the witness memory is fresh and the freshness outweighs the

suggestiveness of the show-up

K was sitting with an officer at the station and the witness immediately saysit was him there was no atty present

The right to counsel arises in the adjudicatory phase so pre-adjudicatory

phase IDs are not subject to Wade

US v. Ash

ID is years after the crime occurred and long after the was indicted

BUT it was not a corporeal lineup it is done by photograph

The photographic lineup was done very close to trial

There was no Wade violation if doesnt have a right to be present, thenthere is no constitutional right to have atty present

2. Fruit of the Poisonous Tree

Due Process argument can apply ti any ID procedure taking place at any time

Stovall v. Denno

The victim was shown the suspect in handcuffs at the hospital

This wasnt too suggestive b/c if there was going to be an ID, it must beimmediate b/c the witness was going to die

So to violate due process, must have:1. Suggestiveness

2. Suggestiveness that is unnecessary

Manson v. Brathwaite

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Undercover officers make photographic ID two days after buying from suspect;

ID was done with one photo

Ct says there are three requirements to constitute due process violation:1. Suggestiveness

2. Suggestiveness that is unnecessary

3. Must give rise to a substantial probability of mistaken identification There are factors to consider in making that decision:

1. The opportunity to view

2. The degree of attention of witness3. The accuracy of the description

4. The witness level of certainty

5. The time between the crime and the confrontation

If there is notsubstantial probability of mistaken identification, then the officer

may testify in court and the out of court ID will be admissible

Due Process Violation

3 Requirements:

1. Suggestiveness2. Unnecessary

3. Must give rise to a substantial probability of mistaken

identification

Factors to consider in deciding whether there is due process violation:

1. The witness opportunity to view

2. The degree of attention of the witness3. The accuracy of the description

4. The witness level of certainty

5. The time b/w the crime and the confrontation

Documents

Schmo Con Crim Pro