Chap 3 RIGHT to COUNSEL - robbiesimpson.com Procedure Coyn… · Web viewBackground cb 1-59....

Criminal Procedure 2001

Exam room 115 physical science Friday the 20th.Background cb 1-59

Probably the most useful Constitutional law course offered next to the 1st Amendment.Article II grants/restricts Executive/Police powers

From violation of statutes or even Constitution. How limited are the powers of law enforcement? Crim Pro are the procedures used to enforce the substantive criminal law.4th amendment will be more than ½ of course – searches and seizures Espouses rights of the citizens to be secure Persons/Houses/papers/effects from Unreasonable searches&seizures. Not protected from all searches and seizures. Ie those that are reasonable. Police owe a “duty” to do

reasonable s/s . Probable cause must exist to do a search or seizure BY an officer not another private citizen with a warrant.Abuse of powers will also be a big portion of this course. ie in arrests….. Consent to do something dismisses/eliminates the subsequent claim.Exclusionary rule of 4th amendment in reference to evidence.8th amendment no Cruel AND unusual punishment and no excessive bail6th amendment right to …trial by unbiased jury and of confrontation (to be informed of nature and cause of accusation),

right to the assistance of counsel (5th amendment double jeopardy (a little), privilege against self-incrimination, fed due process clauseINCORPORATION of B.O.R. into State court criminal proceedings was an evolution. NOT a TOTAL incorporation.

because of “ordered liberty” or “fundamental rights” Those incorporated =

4th search and seizure and exclusionary rule of evidence5th double jeopardy, self-incrimination6th counsel, speedy and jury and public trial, right to confront adverse witnesses, compulsory witnesses, notice8th cruel and unusual punishmentProsecution by Grand Jury under 5th is NOT required of the states8th right to Bail??? not held yet

Constitution only specified what Fed Gov’t COULD do. 1787Bill Of Rights- Federalists fought the BOR, while Anti federalists like Jefferson fought FOR the B.O.R.

1791Madison’s papers showed his trust of Gov’t…………………….

Colonists hated the King’s unannounced searches of their homes and wanted a way to restrict this from happening. DEMOCRACY – people should have the right to decide what they are wanting vs LIBERTY – some rights should not be able to be taken away BOR did not protect everyone. Ie women until 19th amend in 1920’s, Native Americans were alien people in

their own lands – took 135 years for NA to become citizens, Blacks Slavery protected for 78 years under the BOR as the Constitutional 3/5ths.

HANDOUT 1-22

POWELL v ALABAMA, 287 US 45 (1932) Scottsboro defendantsFACTS: Originally arrested only for assault and attempted murder.

1 woman named 6 men and sheriff said “others must have had other woman”white media used this as a propaganda to show the savage nature of blacks to white male AmericaPetitioners ∆s appeal a rape conviction and death sentence. ∆s are 9 black men tried in three trials for the “rape” of two white women (which they actually did not commit). The court is only willing to review the second of the assignments – the denial of right of counsel with the accustomed incidents of consultation and opportunity of preparation of trial. Mr. Roddy (TN) and Mr.Moody(AL) end up being the defense counsel. Mr. Moody was essentially a bystander. No motions for continuance by defense. Prosecution moved for severance to 3 trials each taking only one day. Defense lawyers screwed up and didn’t ask as dissent suggests.

ISSUE: Was the trial court’s appointment of the BAR as counsel for arraignment and the allowance of Mr. Roddy from Tennessee to volunteer to help sufficient to satisfy the right to counsel requirement to in turn satisfy the due process requirement of the 14th amendment? seeking to deprive 9∆s of life and

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libertyHELD: NO it was not sufficient. Note the 6th amendment not mentioned

any person facing the death penalty who can not afford lawyer is entitled to have one appointedRation: The trial court had the duty to see that ∆s are Not denied any necessary incident of a fair trial. as

the opportunity to prepare and represent them since the presumption of innocence. FIRST: Fed Constitution?

Only 6 days after the indictments, the trial began. The state said “yes” and no answer from ∆s.

At that time Mr. Roddy a Tennessee lawyer offered to appear with the counsel that the court would appoint. Prior the Judge appointed “all the members of the bar” for “arraigning the defendants”.

The appointment of the BAR was only an expansive gesture with no obligation upon anyone.Thoroughgoing investigation and preparation were vitally important which ∆s not get.Proper representation requires also preparing to represent a client which Mr.Roddy

did not prepare.Therefore, the circumstances show ∆s not accorded and substantial right of counsel.

SECOND: Alabama Constitution provides ∆ will enjoy assistance of counsel in capital cases and that Mr.Roddy satisfied the State Constitutions requirement and the US Sup Ct can not changethat decision. BUT, the US Sup Ct can decide if the denial of assistance of counsel contravenes the due process clause of the 14th amendment!!!Fed sup ct can only interfere if the state law is federally unconstitutional

NEVER has it been doubted by Sup Ct that NOTICE and HEARING are preliminary stepsESSENTIAL to the passing of an enforceable judgment AND that they together with JURISDICTION constitute the basic elements of constitutional requirements of due process.Given the previous facts and that a HEARING includes the right to the aid of counsel when desired and provided by the party asserting the right, then the FAILURE of the trial court to give reasonable time and Opportunity to secure counsel was a clear denial of due process.

THIS must be on a Case-by-Case basis. law of the land … must hear before it condemns…The duty of the court to provide counsel is not discharged because of preclusion of ability to prepare. must assign counsel whether requested or not….

BRUTALITY and VIOLENCE in obtaining a confession

BROWN v MISSISSIPPI, 297 US 278 (1936) FACTS: Brown and two others were beaten and tortured in order to get them to write and sign confessions

verbatim as dictated to them. It was a well known and open fact that the Deputy and others onlyobtained the confessions through this torture; but the trial court refused to strike the confessions asnot admissible evidence. The confessions were the State’s ONLY evidence to convict the ∆s.The State Sup Ct “reviewed” the federal question of a violation of due process, but declined to enforce petitioner’s rights. Ellington was first tortured and hung from a tree.The US Sup Ct did not write an original opinion, it mostly quoted the State’s Dissenting Justice.

ISSUE: Is the obtaining of a conviction through compulsory self-incrimination by torture protected underconstitutional due process as the state sup ct held it was?

HELD: NO it is not protected. confessions typically prosecuted under the 5th amendment.Ration: The confessions were the Only evidence to convict the ∆s. Whereas the State is free to regulate

procedure in accordance with its own conceptions of policy, it must still adhere to the basicsof the 14th Amendment. A “rack and torture chamber may not be substituted” for the witness stand.The duty of maintaining constitutional rights of a person on trial for his life rises ABOVE mere rules of procedure and……

1990’s Amadou Diallo and Abner Lovima and “driving while black” shows that racial profiling still happens.Cultural problem that the police ARE the LAW.

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ROCHIN v CALIFORNIA 342 US 165 (1952)Rochin swallows two morphine capsules after police “enter” Rochin’s home based on “some information”Police take Rochin to hospital and forcible extract the Morphine and use it as evidence to convict him.4th amendment for “unreasonable search and seizure” is the basis of Majority opinion.5th amendment violated for self-incrimination in the concurring opinion of J.Black

but 5th is subsequently limited in other cases.4th, 5th, 6th, 8th, fail, then look to the 14th amendment.

IRVINE v CALIFORNIA (1954)Footnote a pg 42. limited Rochin to situations involving coercion, violence, or brutality NOT microphones

BRETHAUPT v ABRAM (1957)Man is unconscious after “causing” car accident and does not consent to the taking of his blood.evidence evanesces (disappears)BASED on the reasonableness of the CIRCUMSTANCES. Since giving blood is often voluntary, then a

physician giving a protective eye is not unreasonable.SCHMERBER cb 43(1) taking of blood does not offend “that sense of justice” reaffirming Breithaupt

(2) he did not testify therefore 5th not apply to him for self-incrimination THEREFORE, compulsory self-incrimination can be allowedLEWIS cb44 “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element

of arbitrary conduct Shocking to the conscious NECESSARY for a DUE PROCESS VIOLATION.

4th amendment only applies to searches and seizures and they must be Unreasonable (k-9’s are not searching)

Sup ct must decide in retroactivity if Decision applies to only all cases from that day forward OR to any casestill in the criminal justice system.

Usually new rules on constitutional criminal procedure apply only when your case is final and complete.

Federal supervisory power- SC has adopted Fed Rules of Crim Procedure requiring jury by 12 and unanimous verdictsMcNABB v USUS v PAYNOR – documents from someone else’s stolen briefcase used to convict him, therefore Paynor did

not have standing under 4th amendment. In each case brought in state courts TWO Constitutions apply – State and Federal (fed is absolute Minimum of rights

States can only provide more protection to it’s citizens than afforded under SupCt’s rulings Exclusionary rule PURPOSE is to deter improper police conduct (to be covered more later)

Chap 3 RIGHT to COUNSEL

Gov’t obliged to provide counsel to someone in need.“Poverty” defined loosely as a relative concept that can arise at any stage of criminal proceedings

where defendant inhibited or prevented from proper assertion of right or a claim of a right Oklahoma holds if you make bail, you don’t get right to counsel as indigent appointed counsel OK gives no right to expert testimony. Must have lawyer request court to pay for it. “Equal Justice” Gov’t may be required to minimize the influence of poverty on its adimn of justice

Must do all possible to eliminate “discrimination” against a class of accused personsFree counsel has grown to 80% of cases thus straining justice system.Gov’t recoupment is allowed where a ∆ is no longer indigent and not subjected to “manifest hardship’

§1 the right to appointed counsel and related problemsBETTS v BRADY 316 US 455 (1942) REVERSED by GIDEON v WAINWRIGHT 1963

Rule of Law: the right to counsel is not fully applicable to the states because the 6th amendment’s guarantee of counsel is not Completely incorporated by the 14th amendment, but the failure to appoint counsel is a violation of Due Process, IF, under the circumstances of the case it results in a conviction that is lacking in fundamental fairness.

FACTS: Betts was an indigent unemployed farmhand. Avg intelligence but uneducated.

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He was indicted for Robbery, requested counsel, but was denied.State told Betts that counsel was only provided for rape and Murder.Betts had a bench trial where he presented an alibi, but was convicted and sentenced to 8 years.

ISSUE: Was the State’s failure to appoint counsel for an indigent ∆ a violation of 14th amend Due ProcessHELD: NO. distinguishable from Scottsboro case. Capital v non-capital case – state v federal Ration: 6th amend not fully incorporated under 14th amend and 6th applies to FEDERAL cases. This not a

fed case therefore asserted denial is to be tested by an appraisal of the totality of Facts case by case.Counsel is NOT a fundamental Right necessary for a fair trial….HA HAProcedural Due Process of the Const Mandate that ∆ entitled to notice and right to be heard if Gov’t

acts so as to deny a citizen of Life, Liberty, or Property interest.Dissent: JBlack: Little education. 14th IS applicable to states 100%. Counsel is Fundamental right…

respected courts must give right to defend. BLACK is Majority writer for Gideon.Still have an Absolute right to retain counsel in ANY case.

GIDEON v WAINWRIGHT 372 us 335 (1963) cb PAGE 67Rule of Law: The right to counsel IS a right that is “fundamental and essential to a fair trial” through 14th am.FACTS: Gideon convicted of Non Capital felony (breaking and entering into a pool room w/ intent…) after

Florida court refused to appoint him counsel. Florida only mandated counsel in Capital cases. His writ of Habeas Corpus was denied but USSCt grants cert to consider if the denial of counsel was unconstitutional. SC gives a lawyer (Fortas) to pursue the cert and acquitted.

ISSUE: Is the right to counsel a fundamental right that applies to the states through the 14th amendment.HELD: YES Counsel is of vital importance as is “thoroughgoing investigation and preparation”Ration: J.BLACK – Because adequate counsel is necessary (“fundamental and essential”) “to a fair trial”, the

Bill of Rights provision does apply to the States through the 14th amendment.Counsel is a FUNDAMENTAL right and BETTS was wrong

Concur: J.Clark – Due process deprived of “liberty” or Life without a capital/nonCapital distinction.Concur: J.Harlan – Felt BETTS was still good law because it provided for “special circumstances”

ARGERSINGER v HAMLIN Page 71 407 US 25 (1972)Used non-petty standard because only non-petty charges allowed a jury trial. Petty charges got no jury.

Struck down Florida rule requiring counsel be appointed only “for non-petty offenses punishable by more than 6 months imprisonment,” AND

“Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified aspetty, misdemeanor, or felony unless he was represented by counsel”

SCOTT v ILLINOIS 1979 – court declined to extend ARGERSINGER 5-4 vote – Scott convicted of crime (shoplifting) punishable by up to $500 &/or 1 year in Jail – Scott sentenced to only $50 no jail time – “6th and 14th amendments requireonly that no indigent criminal defendant be sentenced to a term of imprisonment unless the State afforded himthe right to assistance of appointed counsel in his defense.”right to counsel applies attaches (note even if you have a right as below) only when State seeks to imprison you.DISSENT: ARGERSINGER 2 dimensional test: 1) Non Petty offenses only (2) where any incarceration POSSIBLE

BALDASAR v ILLINOIS 1983NICHOLS v US – a court CAN use a prior conviction which ∆ had no Counsel to ENHANCE the sentencing under a subsequentconviction WITH counsel.

WHEN DOES THE RIGHT TO COUNSEL BEGIN? cb75 WHEN is it triggeredAnswer = only at a (1) CRITICAL STAGE of (2) the PROSECUTION.

- does not begin even when Arrested or when becomes a Suspect ABSENT “interrogation” or itsequivalent.

-6th Amend right to counsel triggered by the initiation of adversarial judicial proceedingssuch as formal charge, preliminary hearing, indictment, information, or arraignment (KIRBY v ILLINOIS)

-5th amend right to counsel 2 of 4 Miranda trigger – interrogation and appointedCustody of suspect and being interrogated. (right against self-incrimination)

U.S. v GOUVEIA 1984 – reaffirmed that one does not become an “accused” for right to counsel to attach purposes simply becausehe has been placed in administrative detention by Gov’t authorities CONTEMPLATING filing charges against him.

- “no right to a pre-indictment private investigator”

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§2 GRIFFIN – DOUGLAS “Equality” principleGRIFFIN v ILLINOIS – No majority opinion of the court. Only indigent ∆ furnished a transcript free for capital crimes.

MAYER v CHICAGO 1971 – “Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent ∆ out of as effective an appeal as would be available to others able to pay their own way.

DOUGLAS – an indigent is entitled to appointed counsel to prepare an appellate brief where the appeal pursued is granted as a matter of right to ALL defendants

ROSS – There is NO constitutional right to appointed counsel for discretionary appellate proceedings

DOUGLAS v CALIFORNIA 372 US 353 (1963) cb 80FACTS: ∆ convicted in a State proceeding. ∆ requested appointed counsel for appeal because of his indigence

but was denied. Calif gives ONE appeal as a matter of right to ALL criminal convictions. The appellate court reviewed the RECORD and ruled appointed counsel would not help ∆ or the court; just as prior Calif. precedent did.

ISSUE: Is an indigent entitled to appointed counsel to assist in preparing an appeal that is granted as a matterof right?

HELD: YES as a matter of Due Process.Ration: This is still a case of discrimination against indigent/poor ∆s. The discrimination is between cases

where the rich man can REQUIRE the court to listen to argument of counsel before deciding appeal onthe merits, but a poor man cannot.Poor man has no “champion”. Appeal becomes a “meaningless ritual” for the indigent.Rich man can focus on appealable issues and raise hidden objections to the conduction of trial.

Dissent: J.Clark – 96% of appeals are shown to be frivolous. Appointment of counsel would be a waste of a state’s limited resources.

J.Harlan – (and J.Stewart) Appeal and transcript ARE afforded to ALL convictions. State need not fund frivolous appeals. Equal Protection: Does not impose on States an affirmative duty to lift the handicaps flowing from differences in

economic circumstances.Due Process: ∆ is guaranteed full consideration on appeal.

it behooves a ∆ attorney to make objections to get on the record to try and preserve right to claim errors.

ROSS v MOFFITT 417 US 600 (1974) cb 84FACTS: Ross was convicted of Forgery in NC. He appealed with counsel and lost. He was denied

appointed counsel in his appeal to the Sup Ct of NC. The appeal to the SupCt of NC is a discretionaryappeal. USSC grants cert.

ISSUE: is there a constitutional right to appointed counsel for discretionary appellate proceedings?HELD: NORation: Trial stage the State is responsible to ensure the ∆s rights are protected. Because the State actively

is seeking to convict the ∆, it is only fair to guarantee appointed counsel. But on appeal, it is the ∆ who initiates the proceedings to challenge the ruling of the lower court. There is no longer a need to protect the ∆ from aggressive state action since the ∆ is now the aggressor. Under these circumstances,no constitutional rights to counsel exist.

Dissent: Because ∆ is at great disadvantage (he is already convicted and now without counsel), his liberty is greatly at stake.

PENNSYLVANIA v FINLEY right to

Federal habeas must be on Death row to get a right to appointed appellate counsel

AKE v OKLAHOMA 470 US 68 (1985) cb 90Rules of Law: (1) the state MUST provide access to the “psychiatric examination and assistance necessary

to prepare an effective defense based on the ∆s mental condition at least WHEN ∆ has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial. “basic tools of an adequate defense or appeal”

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(2) at a CAPITAL sentencing proceeding where the state presents expert psychiatric evidence of ∆’s future dangerousness, then DUE Process requires ∆’s access to experts…

FACTS: Indigent Ake charged with first-degree murder. His erratic behavior at his arraignment prompted thetrial judge to order a psychiatric examination. Ake was deemed incompetent to stand trial, committed,and 6 weeks later re-deemed competent if he stayed medicated by antipsychotic drugs. Ake’s attorneyinformed the trial court of intent to plea an insanity defense, but his motion for a state funded psychiatric exam was denied. Ake was convicted of first-degree murder. At sentencing, Ake sentenced to death because Ake did not have expert testimony to refute prosecution’s expert witness.

ISSUE: Can there be a ∆s right to State sponsored expert assistance in CAPITAL cases?HELD: YESRation: “Meaningful access to justice….”

“…fundamental fairness entitles indigent ∆s to ‘an adequate opportunity to present their claims fairlywithin the adversary system.’”

“Without the assistance of a psychiatrist…, the risk of an inaccurate resolution of sanity issues is extremely high”

Concur: C.J.Burger – should be maintained to capital cases only, not non capital casesDissent: J.Rehnquist – Rules are far too broad. Needs to be clearly limited to capital cases and only to

independent psych evaluation, not to a defense consultant.

Courts have struggled to define the “basic tools” necessary to supply an indigent ∆ a fair and just trial. Many Courts have interpreted AKE to mean that the Defense will only receive assistance when the accused’s

case will fail without it. The basic tools standard does very little for most indigent defendants.

Ch 5 Arrest, Search, and Seizure§1 The Exclusionary Rule

Weeks 1914 Held Exclusionary rule would apply in Federal criminal proceedingsTwin goals of enabling Judiciary to avoid the taint of partnerships in official lawlessness AND of assuring the people that the Gov’t would not profit from

its lawless behavior,…not the rules possible deterrent effect, were uppermost in the minds of the framers of the rule.

WOLF v COLORADO 338 US 25 (1949) Overturned by MAPP v OHIO (1961) cb122FACTS: Dr. Wolf’s appt books were seized from Wolf’s office. The appt books were substantial evidence

used in convicting Wolf of conspiracy to commit abortion. COLORADO law allows evidence seizedin an unreasonable search and seizure to be admissible against a ∆. Federal Court would have made the evidence inadmissible under the exclusionary rule as violating Wolf’s 4th amend rights.

ISSUE: Does the 4th amendment as applied to States also prohibit the evidence obtained illegally underthe 4th amendment just because it would have been excluded in a Federal Court?Does WEEKS apply to State Criminal Trials

HELD: NO. The exclusionary rule is not a constitutional law, just a federal judicial practice that is not binding on the States. (an Erie Doctrine application)

Ration: Yes the 4th amendment incorporates the 14th amendment to apply to the States. BUT, the exclusionary rule is NOT fundamental to the concept of ORDERED LIBERTY. It only encouragesadherence to the 4th amendment. The Sup Ct will leave it to the States to set its own methods of otherremedies to deter violations of ∆s Due Process rights even if that method is simply Public Opinion.Many states did not follow WEEKS exclusionary rule which changes by the time of MAPP.

Concur: J.Black – Exclusionary rule is just a Judicially created rule of evidence for the FEDeral courts.Dissent: J.Douglas Without the Exclusionary rule, the 4th amendment loses its meaning and validity.Dissent: the only hard and fast safeguard in the system is the exclusionary rule because prosecutors would

never prosecute themselves for illegally obtaining evidence…. No effective sanctions for this…

MAPP v OHIO 367 US 643 (1961) cb124FACTS: Mapp convicted for possession of obscene materials. Police arrived at Mapp’s house pursuant

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to info that “a person [was] hiding out in the home who was wanted for questioning in connectionwith a recent bombing (Don King’s home by Archie Moore Lt Heavy Weight Champion),and that there was a large amount of Policy Paraphernalia hidden in home…”Police knocked on door and requested entrance. Mapp, on advice of her attorney denied police entry. 3 hours later more police arrived and forcibly entered the home waving a piece of paperclaiming it to be a “warrant”. Police searched home and found materials resulting in conviction.Ohio Supreme court itself wondered where the warrant actually was, but said it wouldn’t have mattered because under WOLF, the evidence would have been allowed anyway. This appealrequested the Court to re-review the Exclusionary rule in application to the States.

ISSUE: Can evidence obtained in an unlawful search and seizure be used as evidence in STATE trial?HELD: NO. 4th amendment requires Courts to exclude unlawfully obtained evidence. plain view doctrine, where in plain view and police legally there, police may seize it too.Ration: Times have changed. Now, most states actually do apply the Exclusionary Rule.

Exclusionary rule is critical to protection of right to be free from unreasonable Searches & Seizures.Exclusionary rule is designed to be a disincentive to law enforcement to unlawfully obtain evidence.Judicial integrity can only be promoted through total incorporation of the Exclusionary rule because

without Rule, protection from searches and seizures is a valueless “form of words”.The right to privacy If the Gov’t breaks the law, it breeds contempt and then invites anarchy.

Dissent: Harlan, Frankfurter, and Whittaker

ROCHIN comparison- broke down the door, may have lied about warrant, reaching into Mapp’s brato get it out, Police refusal to talk to her attorney.

U.S. v LEON 468 US 897 (1984) NR cb129announces the good faith exception to the exclusionary rule.These motions most often found in pre-trial motions to suppress.Exclusionary rule only prevents unconstitutionally obtained evidence in the Case-in-Chief

but still can be used to impeach a witness’s evidence.Warrant was deficient because affidavit was untested/little corroboration to show PROBABLE CAUSE.

The MAGISTRATE (not the constable) screwed up Because the magistrate blundered the evidence is allowed because the goal of exclusionary rule it to

deter the POLICE from violating the Constitution.1 4th amend violation2 if yes should the evidence be excluded

permissible uses- impeachment of direct testimony- to examine grand jury witnesses- evidence in State CIVIL prosecutions can use the unusable Criminal Evidence

FACTS: District granted motion to suppress evidence seized in GOOD FAITH pursuant to a FACIALLY validwarrant issued by neutral magistrate which ultimately did not sufficiently establish probable cause.The Ct of appeals affirmed the suppression because of the exclusionary rule BUT the Supreme Court Reversed and created a GOOF FAITH exception.

ISSUE: Does the 4th amendment require exclusion of evidence seized pursuant to a FACIALLY Valid warrantwhere the POLICE have acted in Good Faith?

HELD: NO. Deterrence of the police seizure is not obtained in this case because police acted in good faithbased on the “valid” warrant.BUT, suppression remains a valid tool where the judge knew the affidavit was false or the evidence

was insufficient to allow a warrant in good faith.Dissent: J.Brennan: shouldn’t the 4th amendment condemn not only “the initial unconstitutional invasion of

privacy, but also the subsequent use of any evidence so obtained”?

Note 5 pg 142. LEON has been extended to warrantless arrests (and maybe seizures too) in LOPEZ-MENDOZA

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“if the agents neither knew or should have known that they were acting contrary to the dictates of 4th amendmt, evidence will NOT be suppressed even if it is held that their conduct was illegal.”

8th Circuit held in O’NEAL in 1994 that LEON can not save a warrant where the facts essential to showing probablecause used to acquire the “legal” warrant were acquired in a prior illegal warrantless search.

Note 6 pg 142 Judge failed to make the necessary change to a warrant but the Good Faith objection appliesbecause the Judge screwed up (MASS v SHEPPARD)

ILLINOIS v KRULL (1987) extended good faith actions of police sanctioned by a judge TO good faith police actions sanctioned by the legislature.because the reliance was objectively reasonable.

Note 11 CACERES failure to follow rules does not allow exclusionary rule to be applied because IRS had its owninternal sanctions to deter illegal IRS agent activities

US v CALANDRA (1974) A grand jury witness May NOT refuse to answer questions on the ground that they are based on evidence obtained from him in an earlier unlawful search. The dissent here quoted WEEKS to show the twin goals of WEEKS as above pg.6.

PENN Board of Probation and Parole v SCOTT (1998) held the exclusionary rule did not apply outside of criminal TRIALS becausethe application of the Rule would hinder effective operations of probation and parole systems.

Exclusionary rule (JANIS) will also apply to Quaisi Criminal or civil cases like forfeiture where the potentialloss is greater than the criminal sanction would be. Forfeiture requires proof of criminal guilt, so whywould it be fair to allow inadmissible criminal evidence in case which has criminal proof? IRS did not illegally seize the evidence, LA Police did, therefore, the evidence is not excluded in

this case. Must DISTINGUISH criminal from civil cases. The CIVIL Tax proceeding is not of interest to the

LA police Exclusionary rule does NOT apply to deportation hearings (LOPEZ-MENDOZA) US v JACOBSON Fed ex inspected damaged tubes then called Police. Fed Ex was not a State Actor (private

employee) Therefore State Police did not search within meaning of 4th amendment becauseof invitation by Fed Ex. 1) officer re-opening package caused no further injury to Jacobson’sright to privacy and 2)officer testing had probable cause

Exclusionary rule for evidence is (Burdeau v McDowell) a restraint on activities of sovereign and NOT private persons (Arizona v Evans) 1985 held evidence obtained by virtue of conduct of non-police gov’t employee could still governed by

the exclusionary rule. i.e. where a court clerk failed to remove a quashed warrant from computer system and suspect searched and convicted on a drug charge that the evidence was NOT subject to exclusionary rule because there can be no deterrence of a police officer’s innocent actions.

Exclusionary rule for evidence obtained illegally by Foreign officials also NOT apply (U.S. v Verdugo-Urquidez 1990)

Note 1 pg 153 43 USC §1983 allows tort recovery in addition to any State allowed remedy for anyone whose rights, privileges, or immunities secured by the Constitution are violated by someone acting under STATE color

of State Law. conspiracy statutes also exist

§2 Protected areas and interests

KATZ v U.S. 389 US 347 (1967) cb 1551) is there a state actor?2) is there a search or a seizure?

FACTS: Fed Gov’t attached a listening device to the outside of a public phone booth to gain evidenceto convict Katz of transmitting betting info over a phone.

ISSUE: Is the attachment of a bug on the outside of a PUBLIC phone booth a violation of ∆’s 4th amendmentprotections?

HELD: YES. The 4th amendment protects PERSONS rights not whether a PLACE is subject to 4th amend protections. The fed gov’t invaded a private person’s conversation.

Ration: 4th amend protects persons’ justifiable expectations of privacy (ACTUAL and REASONABLE expectation of privacy) and protects People not Places.

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Simply because the Gov’t did not trespass within ∆’s space does not excuse its invasion of his privacy.Therefore the Gov’t seized and searched his privacy w/o a warrant-illegally.

Concur/dissents: multiple not necessary to espouse. you have no right to privacy to PEN REGISTERS (the phone numbers you dial) because it is electronically done

CALIFORNIA v GREENWOOD 486 US 35 (1988) cb 159FACTS: Police investigators twice had garbage pick up truck deliver Greenwood’s trash to police for

investigation. Both times the contents of the trash contained sufficient evidence of drug operationsto secure warrants which resulted in further evidence sufficient to secure convictions.

ISSUE: Can a person’s trash left in a public place for collection be subject to a police search w/o warrant?HELD: YES. There is no realistic expectation of total privacy. The trash is placed in a public place by the

curb where anyone could ravage it and for a third party (the garbage men) to take it. Because thereis no reasonable expectation of privacy, there is no protection given to a person’s trash.Police are not to be expected to be less inquisitive than members of the general public.

Dissent: So long as the bag was closed, then it indicates an expectation of it staying closed.ie mail is closed and you expect it to remain closed.

Harlan concurrence 2 part test most important part of case.

US v SCOTT (1992) Scott shredded his documents and IRS re-assembled. Here Scott did expect privacy thereforea warrant was needed and this evidence will be excluded.

OLIVER v U.S. (1984) “open Fields” doctrine of HESTER v US is free of 4th amendment restraints.note 2 p164

FLORIDA v RILEY (1989) Because the Police helicopter flying at 400 feet was doing what any other pilotcould have done, then 4th amend restraints did not apply. But if it had been illegal to fly at 400 feet, then the 4th amend restraints would apply. Only a plurality opinion. Dissent felt the disadvantageous use of technology was in fact the same as placing a wiretap on the outside of a phone booth as in KATZ.

NEW YORK v CLASS (1986) An officer reaching into a car to move papers obstructing the VIN did constitutea search but it was a reasonable search therefore the gun found was admissible evidence.

U.S. v PLACE (1983) held fed agents who stopped a suspected drug courier and seized his luggage for a caninesearch but could not get a warrant until the following Monday. J.O’Connor stated that the brief detention of personal property was such a minimally intrusive act in balance to the strong countervailing gov’tal interests.A Canine sniff does not open the luggage and keeps non-contraband items hidden from public view.The Canine sniff is “sui generis” Dissents felt under this approach Canines could be released at will to sniff the general public….

US. v KARO (1984 cb 171) Held (1) that placing a beeper in a container of chemicals with the original owner’s consent did NOT infringe privacy interest because it conveyed no info that ∆ wanted to keep private because it conveyed no info at all. (2) that the monitoring of that beeper that revealed info Not obtainable through visual surveillance DID fall within the ambit of the 14th amendment’s protections. First it would be an unreasonable

search to surreptitiously enter a residence w/o a warrant to verify the container was there and the beeper in fact does just that.

DOW CHEMICAL v U.S. (1986 cb172) EPA’s use of aerial photography of Dow’s industrial complex did notconstitute violation of 14th amendment as a “search” because at best the aerial photo’s only enhanced what the naked eye could see even though EPA used sophisticated equipment. BUT had EPA used electronic deviceto penetrate the walls or windows so as it could hear/see confidential discussions, then this would be a violationof the 14th amendments protections just as it would be illegal for competitors to do.

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more like open fields doctrine than the curtilage doctrine

DISSENT felt use of technology that gave details as small as ½” is too far-the members of the public would notpay for the $22,000 cameras.

No expectations of privacy in a jail cell. U.S. v CUSUMANO (10th circuit 1995 cb173) Even though infrared thermal imaging does not access property

in any way, it has the same effect by outlining the heat differentials. The court analogized as close to KATZThe bug in KATZ only monitored the vibrations of the glass. To say thermal imaging is only viewing the waste heat sources or the useful interpretation of abandoned energy would simply approve the type of search condemned in KATZ. a new case about thermal imaging is before the Court now.

BOND v US supp pg 15 (2000) is there a state actoris there 4th amend …person, effects….

HELD: Was an unreasonable search because expect a bag to be regularly handled BUTnot to be pressed to search for hard objects.

should have gotten consent or used a canine.

Officers can use normal means to amplify what they need to do ie shining a flashlight in a car to look for beer.

Would a gas Chromatography instrument be classified as an electric canine or viewing as a Katz bug or imaging?

ANDRESEN v MARYLAND (427 US 463 1976 cb 174)FACTS: State authorities obtained a lawful warrant to search for documents referring to a fraudulent land

sale and was convicted through the use of those papers including handwriting verification.4th amend analysis indicates an expectation of right to privacy. This case assumes the warrant was valid.ISSUE: Did the seizure of Andresen’s business documents constitute a 5th amendment violation against

self-incrimination?HELD: NO. (1) Police seized the papers pursuant to a warrant. Andresen did not volunteer them nor was

he compulsed to produce them. (2) he voluntarily put the evidence into paper form. (3) the papers were not personal papers, they were business papers. (4) a handwriting expert verified the paperswere in his writing and he did not have to. Therefore, there was no COMPULSION for Andresen todo anything at all.

Had the papers had only personal use, the papers would have been protected by the 5th amendment. protected from producing evidence to incriminate yourself, but not from it being produced.

ZURCHER v STANFORD DAILY 436 US 547 (1978) NR cb 177FACTS: 9 officers injured by riot and photos indicate a Stanford Daily photographer was in a position to

take photos of the perpetrators. Even though none found after the search.Police get warrant to search the Daily. Daily protests that their first amendment rights were violated.

ISSUE: Can a search warrant be constitutionally issued to recover evidence of a crime committed by someone other than the searched party?

HELD: YES. Nothing in the 4th amendment finds it improper to issue a third-party search warrant where there is Probable Cause to believe the fruits, instrumentalities, or evidence of a crime will be found.This balance of Probable Cause in the 4th amendment gives sufficient protection when 1st amendmentrights could be endangered by the search. Warrants issue early in an investigation and (1) a subpoena duces tecum would take too much time where (2) a seemingly blameless person could destroy evidence or where investigation otherwise otherwise undermined.No protection afforded to the Daily in this situation. Court resolves the clash between first and fourth

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amendments by saying that there must be probable cause.Exclusionary rule will not apply in 3d party searches even if the evidence is seized in violation of 4th amend.

subpoena vs. warrantssubpoena duces tecum – allows a 5th amendment protection for self-incrimination. Cannot resist a search warrant on these grounds.

Warrants must issue based (1) upon probable Cause (PC=exists when facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy information are sufficient within themselves to warrant a person of reasonable caution in the belief that: 1)in the case of an arrest – that a crime has been committed and the person arrested committed it

2)in the case of a search – seizable evidence will be found in the place to be searched)(2) upon specificity requirement Place searched and items to be seized(3) upon reasonableness.

Probable cause often created through an informant.

O’CONNOR v JOHNSON (Minn 1979) the court held the search of an attorney’s office pursuant to a warrantto seize A certain client’s business records was unconstitutional. An attorney must protect all clientsatty-client privileges and this ransacked info cannot be erased from police minds AND an attorney isbound by Statute, Code of PR, and oath to the bar to protect the judicial process.

§3 “Probable Cause”SPINELLI v US 393 US 410 (1969) cb 183

FACTS: Spinelli convicted of gambling statutes based on evidence seized under a search warrant by FBI.FBI’s affidavit to secure the warrant was (1) from a “reliable” informer that Spinelli was using 2 phone lines to conduct gambling operations (2) that Spinelli was seen entering the apartment thathad the 2 phone lines and (3) that Spinelli had a reputation as a gambler. Court of Appeals useda “totality of the circumstances” approach which the Sup. Ct. found was too broad.

ISSUE: was the information sufficient to indicate probable cause to search the warrant.HELD: warrant must indicate (1)veracity- how do you know the guy is telling the truth and (2) basis of

knowledge - how did this guy get his information.A hearsay type affidavit must be from informer “reliable” AND the “underlying circumstances” must

be stated as to where the informant got his information. A warrant can still issue if the accused criminal activity is given in such detail that judge feels it is

given in a reliable manner OR if there is sufficient independent corroboration to allow judge to conclude probable cause.Because the affidavit does not say why the informer was reliable or where the info came from, then

and there is not any corroboration then the “suspicion” of criminal activity is given no weight.

veracity indicates a informer’s track record (CREDIBILITY)– but here it was his first informering Basis of Knowledge failed because he didn’t say how he got the information “underlying circumstances”

the RISK is the unknown informant. Derschowitz’s rules that Police can perjure themselves and that they may “create” their own anonymous informant based upon their hunch or weak corroborative evidence.There is tension because it can be important to keep informants identity hidden and making them known to

prove veracity and Basis of knowledge. Police do not have to reveal the identity of their informer UNLESS it becomes material at trial to establish innocence or guilt.

4th amendment rights will continue to be eroded as we wage a War on Drugs.

ILLINOIS v GATES 62 US 213 (1983) skimmed cb 186-200FACTS: An Illinois Magistrate issued a search warrant against the Gates based on an affidavit

that detailed the info in an ANONYMOUS letter where the police subsequently corroboratedthe letter almost exactly. The search turned up evidence but the evidence was suppressed at trialcourt affirmed by the Ill sup ct. on the basis that an anonymous letter is insufficient to showprobable cause.

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ISSUE: May a magistrate view the “totality of the circumstances” presented to him in determining the reliability of an informant and the basis of knowledge in determining whether Prob.Cause exists.?

HELD: YES. A magistrate MUST evaluate the reasonable “totality of the circumstances” presented to him, including, but not limited to the reliability of an informant and his basis of knowledge in determining whether Probable Cause exists to issue a warrant. Court realizes there is a War on Drugs.

Ration: The two tests can be used as balancing where one really strong test will be sufficient to compensatea weak other test. Strict adherence to both prongs of the test essentially eliminates the ability to useanonymous letters. Because the letter detailed a day’s activities, it stands to reason that the basis ofknowledge on the drugs is enough to show probable cause existed. Prob. cause is just that – probable.The question is: Is there “reasonable grounds to believe that the remaining unverified bit of info is also true.

The GATES test is still a two-pronged test but it adds a good faith exception to the exclusionary rule (J.White)FN2 pg 199 Drug courier’s profile

MASSACHUSETTS v UPTON (cb 200 1984)FACTS: Police Lt assisted in execution of search warrant of motel room of Richard Kelleher which produced

several items belonging to burgled people. Other burgled items not found there. 3 hours later PoliceLt received “anonymous” phone call stating the other burgled items could be found in the motor home of George UPTON at a specific location. Lt verified the location of motor home then secured a warrant. Lt recognized the woman’s voice and confronted her and she said Upton was her ex boyfriend and that he would kill her if he knew she was an informant.

ISSUE: is there a fair probability of finding contraband based on the info given.HELD: Because she had good reasons for her motive and attempt to remain anonymous, then the search

warrant for the motor home remains valid because of the totality of the circumstances.Basis of knowledge – she saw it.veracity – she wants to burn him and has a motive to lie, but she knows him and about Kelleher and described the items.State constitution still applies and the Mass Court holds on remand that SPINELLI (more strict

protection for criminals) applies in their states.Probable Cause is also required for WARRANTLESS searches and arrests.Probable Cause for a search is greatly limited because of possibility fruits and evidence have moved.prob cause to search fruits, instrumentalities, contraband or evidence AND likely to be found in certain placeprob cause to arrest requires reasonable belief of crime committed and that suspect committed the crime.

FRANKS v DELAWARE (cb203 1978)you can impeach the veracity of info used to show probable cause for search warrants.Where a statement used in an affidavit to show probable cause to secure a warrant is shown by ∆ substantially

showing that a false statement knowingly or intentionally or with reckless disregard for the truth wasmade in securing the warrant that the False evidence will be set aside and the warrant judged to sufficiency on its remaining contents.

McCRAY v ILLINOIS (cb204 1967)FACTS: Informant who had over 20 successful rat-outs ID’d McCray to 2 police officers. McCray was

arrested for drug charges and convicted after the police refused to ID the informant. Sup Ct affirmed.Because the question here is Probable Cause not Guilt or Innocence, the police are not required to disclose

the identity of the informant. All ∆’s would move to have the identity revealed but because there is noway to determine if the request is in good faith it must not be allowed as a rule of thumb.

This right of confrontation is based on 6th amendment and Due process of 14th amendment. But an informantis not a witness thus there is no right to confrontation.

police must use good faith in obtaining the warrant.

Other sources of probable cause cb 206-Info from alleged victim of or witness to a crime – prior reliability need not be shown no motive to lie – the critical question is whether the general description given is sufficient to justify the arrest of any one person.

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-Direct observation by police – uses the reasonableness standard of experienced police not the casual passerby.Info and orders from “official” channels – ie an APB broadcasting a “warrant” even if there is no real warrant.

§4 Search WarrantsA. Issuance of the Warrant COOLIDGE v NEW HAMPSHIRE (1971) the warrant must be issued by a “neutral and detached magistrate.”

The person issuing the warrant cannot later prosecute at trial. &capable of making probable cause determinationSHADWICK v CITY OF TAMPA (1972) SC Upheld a city charter that allowed municipal court Clerks to issue ARREST warrants for

Municipal ordinance Violations. Still must be neutral & detached…Connally v Georgia – a Justice of the peace was NOT neutral where he is non-salaried and charged $5 fee for the warrant.Davis – magistrate can not do a ride along to execute the warrant – doesn’t look impartialCan’t magistrate shop where one has already denied the warrant.

MARYLAND v GARRISON (1987) cb 210 must have a particular description of place to be searched.If the affiant or the investigating officers did not know or had no reason to know that a living unit

that appeared to be a single-occupancy structure from the outside was in fact a multiple-occupancy structure, then the warrant is not defective for failure to specify a unit within the building.

FACTS: Premises “known as 2036 Park Avenue third floor apartment” but discovered contrabandnot in McWebb’s apartment but in Garrison’s apartment.

HELD: the warrant was VALID because a warrant must be assessed on info officers had a dutyto discover and to disclose to the issuing magistrate and (2) the execution was valid becausethe officers’ failure to realize the overbreadth of the warrant was objectively understandableand reasonable.

Dissent: (1) only the 3d floor apt. belonging to McWebb was authorized to be searched not the entire 3d floor(2) the police KNEW it was a multiple-occupancy structure before obtaining the search warrant and knew

there were 7 apartments on the third floor. It was unreasonable to assume 3d floor was all 1 apartment.

and must have particular description of things to be seized in GOOD FAITH. & sometimes the purpose of warrant.

B. Execution of the Warrant Most jurisdictions provide time of expiration of 10 days after its issuance and can only be served in daytime.

to maintain validity of actual probable cause. GOODING v U.S. (1974) cb 212 held that fed statute relating to searches for controlled substances required

no special showing for a nighttime search other than likely to be there at that time.

WILSON v ARKANSAS (1995) Common law principle of announcement does not prevent the “law enforcementofficer’s authority to break open the doors of a dwelling…” to gain entry.

RICHARDS v WISCONSIN (1997) US Sup Ct REJECTED a state holding that NEVER required knock/announcement when executing a search warrant in a felony drug investigation.

2 concerns for the Sup Ct.1) the no knock exception contains considerable overgeneralization (not all warrants involve risks)

either risks to the officers or to the destruction of the sought after evidence.

2) exceptions to this one category can be mutated to apply to other categories. To justify a no-knock exception, police must have a reasonable suspicion that knocking would be dangerous or futile.

U.S. v RAMIREZ (1998 cb214) when the reasonable suspicion test has been met “depends in NO way on whetherthe police must destroy property in order to enter.” The police here broke a garage door window to deter the prison escapee from having access to the alleged weapons in the garage. This prison escapeehad vowed never to do federal time; therefore, police had a “reasonable suspicion” that knockingand announcing their presence might be dangerous to themselves or others.

Detention & search of persons on premises from YBARRA v ILLINOIS (1979)Informant claimed he had seen tinfoil packets of heroin behind the bar and on the bartender and had been

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offered purchase. The police raided, searched, and found heroin in cigarette packed of a customer and State courts found this evidence was admissible. Sup Ct Reversed and found it Inadmissible.

Sup Ct stated probable cause, even according to the warrant, was only for the bartender and the premises.The search of other persons had no probable cause.

Detention of persons on the premises from MICHIGAN v SUMMERS (1981) cb 216Police, in executing a warrant, stopped respondent on the steps while he was exiting the house to enlist

his assistance in gaining entry. They detained him while they searched the premises. After findingnarcotics in the basement and ascertaining he owned the house, they arrested him, searched him, andfound 8.5grams of heroin.

Sup Ct upheld this search and seizure because “some seizures…constitute such limited intrusions….justifiedby such substantial law enforcement interests…..”Probable cause may develop with regard to the detained person after search completed.It was not very intrusive on him to be detained versus the house searched.It was even a detention in his own home (even though that was not known at that time)

intensity of the search must be for the type of evidence listed

Coolidge v New Hampshire cb 217 announced the ‘plain view’ doctrine for the probable cause exceptionsa) officers legitimatly on premisesb officer see in items in plain viewc officers have reason to believe it is fruits, instrumentalities, evidence, contraband….d) discovered in advertently – eliminated by HORTON

HORTON v CALIFORNIA (1990) A warrant was issued to seek only the proceeds of a robbery, not the weapons used in the robbery as the

seeking officers had requested.The officers did not find the proceeds but did find weapons and seized them. Horton claimed discovery of guns were in plain view but not inadvertent. Court eliminates this test.

scope must be met by searching only where you could find i.e. Can’t look for a 52”TV in a dresser. WILSON v LAYNE supp p16 (1999) Issue: can a third party accompany execution of warrant?

HELD: No. A reporter would not further the execution of the warrant where a witness could.

§5 Warrantless Arrests and Searches of the personU.S. v WATSON NR Facts: An informant told postal inspector the Watson had supplied him a stolen credit card and promised to

supply more. When informant met with Watson in a restaurant, informant signaled inspector that Watson had the stolen cards and Inspector arrested Watson WITHOUT a warrant. 18 USC §3061 allows postal inspector to make warrantless arrest.

ISSUE: Could a law officer make an arrest without a warrant for a felony committed either in or not in his presence IF he has reasonable grounds for making the arrest?

HELD: This is OK.

LANE reporter case can bring along third persons for purposes of identifying evidence .

TENNESSEE v GARNER (1985) Deadly force is SOMETIMES unreasonable. When the officer has probable cause to believe suspect in danger

of causing more harm.

GERSTEAIN v PUGH cb228 (1975)

4th amendment requires a judicial determination of probable cause as a prerequisite to EXTENDED restraint

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on liberty following arrest. The issue of whether probable cause to detain the arrested person withoutan adversary hearing is whether believed the suspect has committed a crime.

COUNTY OF RIVERSIDE v MCLAUGHLIN (1991) cb 230

48 hours is a reasonable detention to determine any other probable cause. Note 12 p231 cannot use conclusory language

U.S. v ROBINSON (1973) cb 232Rule of Law: A full search of a person incident to a lawful arrest is a reasonable search under the 4th amend

and need not be limited to a frisk for weapons in cases involving crimes, such as traffic violations, where there would be no further evidence of such crimes.

warrantless searches of personsOfficer had reason to believe Robinson driving with a revoked license. State law said could arrest for this

offense. During a pat-down to secure the safety, Officer found heroin.Consent and Search Incident To Arrest. are two ways to do a search.1st pat down, then discovers cigarette packet, then retrieves it, then feels it, then opens it. Ct appeals rules it violated the 4th amendment because ONLY reason justifying FULL search is to seek

evidence of crime or to protect.WINGSPAN is area allowed to be searchedLAWFUL is probable causeP.C. to seize is contraband, fruits, instrumentalities, or evidence. of the crimeNot an INVENTORY SEARCH (which doesn’t require probable cause)protects detainee ,cellblock, offices

SUP Ct reverses –Terry v Ohio was an investigative stop, not an arrest.

terry stop terry frisk (is suspect armed) can frisk even if not arresting if PC for a weaponStop and frisk was in fact constitutional.

USE A FRAME BY FRAME ANALYSIS IN THE CASES to ANALYZE J.Marshal DISSENT – uses the frame by frame analysis of the facts.

GUSTAFSON v FLORIDA (1973)find marijuana cigarettes after a driving under suspicion traffic stop.

EDWARDS can delay a full search until you get to the station house. Don’t have to do SITASeveral states have rejected ROBINSON and limited to searches for weapons.

cb240 WHREN v U.S.1996Stop seems to be lawful. Arrest (PC to believe bags were drugs) then it is lawfulSubjective intentions play no role. Only matters whether officer can articulate lawful intentions.Perhaps even allowed future racial profiling…

ILLINOIS v LAFAYETTE 1983Stationhouse search of duffle bag after refusal is OK. it is an inventory search.

S.D. V OPPERMAN upheld search of glove compartment of a lawfully impounded vehicle.

U.S. v EDWARDS (1974) burgles a Post Officein jail 10 hours then without a warrant search his clothes for paint chips to link him to the burglaryNOT SITA. already arrested. DELAYED SITA is OK.

plain view, automobile, SITA, consent, Terry stops - must tie a search to one of those. The paint chips could not useprobable cause to search for them because he not convicted. Had to be tied to one of the major allow areas of searches. Maybe could have used plain view if the paint chips were not microscopic.

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SCHMERBER v CALIFORNIA cb 250 Note 5where Court upheld taking a blood sample to test for drugs/alcohol against suspect’s consent as part of a

Search Incident To Arrest.Schmerber Balancing Test – The facts that established Probable Cause to arrest which also give rise to the P.C.

to search (blood sample), but when officer reasonably believes he is confronted with an emergencywhere delay to get a warrant would “threaten the destruction of evidence” Constitute an appropriateincident

WINSTON v LEE (1985 cb 250)Court applied Schmerber balancing test in holding that proposed court ordered surgery on ∆ to remove a

bullet for ballistics testing to prove that ∆ was the robber WAS an Unreasonable search.Surgical removal for proof was not needed especially in light of all the other available evidence. but still is

a case by case basis.

NOTE 7 cb 251 lists many upheld EMERGENCY searches like scraping fingernails, taking hair samples….

MUST BE ABLE TO MAKE REASONABLE ARTICULATION OF P.C.

KNOWLES v IOWA (1998)Police officer issued a citation in lieu of arrest as allowed by State law. Officer then made a Full search of

Knowles’s car and found a bag of marijuana as statute ALSO authorized.Sup Ct. held this UNconstitutional. Court looked at 2 Historic rationales for SITA:

1) the threat to officer safety from issuing a citation is much less than a custodial arrest.Officer’s concern for safety satisfied by allowing a ‘patdown’ search of anyone in car withreasonable suspicion that they may be armed/dangerous & patdown car with Reas Susp.

2) the need to preserve evidence did not arise here either.

footnote f cb251 can order out of car drivers and passengers for safety sake

CUPP v MURPHY (1973)Here Court held in essence that a SITA can come long (1 month) before an arrest is made. Police scraped

the fingernails of Cupp because they saw blood under his nails. Plain View.Probable cause arose to arrest when police saw blood and PC gets stronger when he tries to wipe it off.Concurrence thought this could easily have been preservation of evidence issue.

§6 Warrantless searches of premises, vehicles, and containersscope of search incident to arrest

CHIMEL v CALIFORNIA (1969) cb 253FACTS: Police served Chimel a valid ARREST warrant and subsequently searched his home without a

search warrant. The search turned up evidence of burglary of the coin shop. ISSUE: Can the search of the house be held as Incident to the Arrest?HELD: Rabinowitz indicated that a warrantless search “incident to a lawful arrest” may be extended to the

area that is considered to be in “possession” of or under “control” of person arrested.Sup Ct overruled Rabinowitz. The question is NOT whether it is reasonable to procure a search

warrant, but whether the search is reasonable – from Rabinowitz – struck down! Objections to introduction of evidence must be made EVERY time it comes up. Motion to suppress, object to introduction, appeal it….RULE: Under the 4th and 14th amends, a warrantless search conducted incident to a lawful arrest may only

extend to a search of the arrestee’s person and to the area “within his immediate control”.Called the WINGSPAN . can search anything in the wingspan of arrestee.

This case finally set a firm and “final” standard for warrantless searches of premises SITA.Concur: J.Harlan expresses concern that municipalities may not be ready for extra warrant work.Dissent: Where it is impractical to obtain a search warrant and exigent circumstances indicate a need to

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preserve evidence, the search is therefore reasonable.

A. Search of premises incident to and after arrest therein

Giocalone v Lucas Held police could look in dresser drawer before arrested ∆ put street clothes on

MARYLAND v BUIE (1990) cb 258Officers acting for their own protection performed a “ protective sweep ” pursuant to SITarrest secured w/ P.C.. Held that police CAN do protective sweeps that had Individualized Suspicion and adopted a 2-part sweep

RULE: SITA does not happen until arrested. Prot Sweep requires probable cause to arrest1) officers can w/o probable cause look in areas large enough to spawn a launched attack and can

only be a CURSORY inspection.

WASHINGTON v CHRISMAN (1982) cb 259a warrantless ENTRY of premises will be permissible incident to and following an arrest ELSEWHERE. FACTS: Officer arrested underage student for carrying alcohol. Officer accompanied student to dorm to get

student’s ID. In the dorm room, officer noticed marijuana seeds and pipe. HELD: the entry was LAWFUL because it is a matter of routine to monitor the movements of an arrested

person because of no way to accurately predict how an arrested person will react to the arrest.

ARKANSAS v SULLIVAN (2001) a pretextual arrest just to do a inventory search Violates 4th amendmentreaffirms a portion of WHREN so long as there is Probable Cause

ATWATER v CITY f LAGO VISTA soccer mom arrested for kids looking out window (seatbelt law)PAYTON arrest warrant implies the ability to search for arrestee where the arrestee could be hiding.

B. Warrantless Seizures while on premises to ArrestPlain view doctrine applies as from COOLIDGE v NEW HAMPSHIRE

ARIZONA V HICKS (1987) cb 2606-3 vote that moving stereo equipment believed to be suspicious when lawfully on premises to investigate

gunfire is an UNreasonable Search. Dissent cited overwhelming view that P.C. is not required for Minimal inspection (like turning to the back to get

serial numbers ) of an item already in plain view.

Notes on Warrantless searches of premises under EXIGENT Circumstances.

VALE v LOUSIANA (1969) cb 261Officers in possession of arrest warrant for Vale set up surveillance at his believed address. 15 minutes

later they saw him emerge, walk to a car, lean through the window and return to house.Officers arrested Vale and told him they would search the house .Search Incident To Arrest must be substantially contemporaneous with the arrest and Confined to the

IMMEDIATE vicinity of the arrest. Wingspan. could detain driver with reasonable articulatible suspicion to try to establish probable cause – Terry StopDissent felt PC existed to support a drug transfer thus giving right to search house too to preserve evidence.

The arrest warrants were for increased bond and NOT a drug arrest therefore Police had no reasonto suspect a need to obtain a search warrant for drugs.

SEGURA v U.S. (1984) cb 263Officers w/o warrant make a drug arrest that they witnesses. Officer remains on premises for the 19 hrs to

obtain a search warrant (which was already done). preserving the status quo is OKpossessory interests are not interfered with whether remain on property or not, Segura in Jail.Securing the premises by any reasonable means does not constitute a seizure of the premises.

police can use deception no rights for homicide warrantless searches Emergency of circumstances to justify a warrantless search balances with (from U.S. v Rubin 3d Cir 1973)

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1)Degree of urgency & amount of time necessary to obtain a warrant.2) the reasonable belief that contraband is about to be removed3)the possibility of danger to Officer who may stay to secure premises while warrant obtained4) info indicating that possessors of contraband Know police are on their trail5) the ready destructibility of the contraband

FLIPPO v WEST VIRGINIA (1999) a briefcase in plain view within a crime scene area SUPP 17

PAYTON v NEW YORK 445 US 573 (1980) cb 266FACTS: Police forcibly entered Payton’s Apartment to arrest him for murder. The arrest was bases on P.C.

Police discovered in Plain View a shell casing seized and used in Payton’s murder trial. Similar facts for Riddick except Police opened dresser drawer & found drugs before letting him dress.

ISSUE: Under ‘normal’ circumstances, is it constitutional for police to make a warrantless, nonconsensualentry into a private residence to effect a Routine felony arrest.

HELD: NO. Absent Exigent circumstances, a warrantless nonconsensual entry into home to arrest in a Home can not occur and evidence obtained from that arrest, even if PLAIN VIEW is not admissible.

Dissent: 4 common law Restrictions on Home arrest all met.Felony, Knock and Announce, Daytime, Stringent Probable Cause A committed felony

and present at the scene

EXIGENCY EXCEPTIONS:1) hot pursuit Warren v Hayden cb 270

WELSH v WISCONSIN (1984) cb 271Police received report of man driving intoxicated. Police later entered his bedroom warrantless & Arrested him.

gravity of offense involved, reasonably believed to be armed….3clear showing of P.C.,4 suspect believed on property, 5 likelihood of escape and 6peacable entry from DORMAN

No exigency created: 1) No hot pursuit (in fact no pursuit)2) no threat to public safety (he was at home)3) Preservation of evidence not sufficient because only a non-criminal, civil forfeiture offense

MINNESOTA v OLSON (1990) cb 272Amoco robbery and Oldsmobile case…. Telephone tip led police to second suspect where police eventually find

him and pick-up order granted. Police swoop in and arrest.the facts here do not add up to exigent circumstances as above in WELSH. no hot pursuit, No SITA,

STEAGALD v U.S. (1981) cb 273issue: do you need a warrant to search the house of a third party?Agents used an arrest warrant to enter the property of a third person where they discovered in plain view, drugs.Court found this was not exigent circumstances. Court felt that police acting without judicial review would

create a potential for abuse. Searched for Lyons in Steagald’s house. Payton expanded here to include a specific address and PC of where a person is expected to be. Would have to have a warrantto Search Steagald’s home to arrest Lyons .

probable Cause = predominate underlying factor for searches with or without a warrant.CALIFORNIA v CARNEY 417 US 386 (1985) cb 275

FACTS: DEA agents entered a Mini Motor Home without a warrant and viewed marijuana in Plain View.DEA arrested Carney who was trading drugs for sexual favors and a full station search found more marijuana.

ISSUE: Does the “automobile” exception from CARROLL v U.S. (1925) apply to motor homes?probable cause here furnished by comments of the youth

HELD: YES. Both cars and motor homes are inherently mobile thus evidence can move away AND Cars and Motor homes are subject to same regulatory authority (Motor Vehicle laws) which

reduce the owners’ expectation of privacy. Probable Cause is still an absolute necessity even if “ready mobility”

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Dissent: Automobile exception carved out for vehicles in MOTION, not parked and stationary.

Probable cause must attach to search even the trunk. 10th cir holds that user-dealer distinction is illogical and unreasonable

MICHIGAN

MARYLAND v DYSON automobile exception must have PC AND must have a finding of some exigency precluding the police from obtaining a warrant. Should have interpreted their STATE constitution more strictlyinstead of the Fed Constitution.

FLORIDA v WHITE SUPP PG 17 – warrantless seizure of contraband (the car itself was the contraband)Court upheld this seizure based on the mobility of the contraband based on PC

WYOMING v HOUGHTON (1999) supp 18FACTS: stopped suspects for speeding and faulty brake lights. Officer noticed syringe in Young’s shirt pocket.

Young admitted it was used to take drugs. Officer ordered Houghton out of the car and another girl out. Officer searched the compartment of the car and found Houghton’s purse (wingspan). Lyingis a suspicious activity. In the purse found Houghton’s real ID and syringe and methamphetamine.

Scope limitationsCALIFORNIA v ACEVEDO 500 US 565 (1991) cb 281

FACTS: Officers who had probable cause (knowing he had drugs, surveillance and leaving with brown paper bag into trunk) stopped Acevedo’s car and searched the trunk and opened the container of marijuana.

ISSUE: is the warrantless search of an automobile or any closed containers within car reasonable under 4th?Acevedo pleads guilty to possession but reserves the 4th amend rights.

HELD: YES warrantless search of an automobile or any closed containers within car reasonable under 4thso long as there is P.C. Must have PC to open each container.

However, if there is only P.C. to search a package not the car, a warrant must be obtained.

US v JOHNS cb 283 Police PC because smelled marijuanaAuto searches can ALSO be done quite some time later

Texas v Brown cb 288 Routine traffic roadblocks turned up balloons, vials, white powder. Not excluded.

ILLINOIS v ANDREAS (1983) Andreas received a drug shipment that had been repackaged and delivered afterit had been lawfully discovered by customs agents. This is almost the same as plain view doctrine.

This was a warrantless arrest. wanted to wait until he was in possession not just in custody of drugs. Was there a legitimate expectation of privacy in package which had been previously lawfully searched

No there was not.

NEW YORK v BELTON (1981) cb 290Officer saw “supergold” on envelope on floorboard during a traffic stop and made an arrest. Police, where they

have made a lawful custodial arrest of the passengers of a car, May make a search of the passenger compartment as a contemporaneous incident of that arrest. Police searched the car and leather jacketin the back seat of the car. SITA and wingspan. (or could have used automobile exception) SITA is how he got

to search the jacket.RATION: everything in compartment was at one time within passenger/driver’s reach from CHIMEL

COLORADO v BERTINE (1987) cb 296Police can do an inventory inspection that involves the opening of Closed containers. Because of no reasonable

expectation of privacy as contrasted to a closed suitcase under a fed constitution analysis.Inventories can be done with reasonableness, routineness as under statutes. MARSHALL in dissent disagrees with Pretext inventory searches used just to get to do a search without

having to have a warrant or PC to search.

South Dakota v Opperland on REMAND opted to hold inventory search violated STATE constitution.

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Generally, police can not watch or listen to tapes found in an inventory search. This would not protect policefrom false claims or would not protect arrestee from theft.

§ 7 Stop and Frisk

TERRY v OHIO 392 US 1 (1968) cb 304FACTS: Officer observed two men acting in such a way as to make Officer suspicious that the two men were

casing a store to rob it. Officer approached the men, identified himself, asked who the men were.Men mumbled something and Officer spun Terry and patted his breast pocket discovering a gun.Officer then frisked the other two men, and the man who did not have a gun was not searched further.Terry argues Exclusionary rule applies because no PC to arrest until after the search.SITA however can not be a defense for Police because Terry was not under arrest when searched.

ISSUE: Is it UNreasonable for an officer who does not have probable cause to arrest, to stop a person and subject him to a limited pat-down of his clothes for a weapon?

HELD: No, it is Reasonable. Where an officer based on his experience and training REASONABLY suspectsthat criminal activity is aloof and where persons believed to be armed and dangerous, Officer can stop

FRISK limited to and conduct a limited search of outer clothing for weapons.Must Distinguish between stop & arrest and between frisk and Seizure.

STOP limited to facts / circumstances that create -reasonable, articulable suspicion of criminal activity is afoot. Terry was indeed seized and subjected to a search, but the question answered is when that becomes

unreasonable to do so without PC to arrest or without a warrant.

Court classified it as “protective search for weapons” justified to protect the officer and nearby people

B. Police action short of a seizure

FLORIDA v BOSTICK (1991) cb 312The issue was not whether Bostick was Free to leave the bus as held in the lower courts, but rather “should have

focused on the principle those words were intended to capture.” Bostick’s movements were restrictednot by police but rather by the fact he was on a bus that was about to depart and did not want to bestranded. Bostick’s ticket and ID were returned indicating he was now free to disregard the officers.

ISSUE: Did police make an unreasonable seizure? Officers did not have even a suspicion of criminal activity.NO seizure occurs in asking to examine the luggage EXCEPT when police indicate it is not voluntary

indicating a reasonable person does not feel free to disregard the officer.

CALIFORNIA v HODARI (1991) cb 316Hodari RA N when he saw the police patrol car and threw down a rock like object believed to be cocaine.

a show of authority by police as with respect to application of physical force, a seizure DOES NOT occur eventhough the subject does not yield.

An arrest requires (1) Physical force OR (1) submission to the assertion of authority

C. Grounds for temporary seizure for investigation

U.S. v CORTEZ (1981) clarifying Terry cb 319Based on the totality of the circumstances the detaining officers must have a particularized and objective basis

for suspecting the particular person stopped of criminal activity. PROBABILITIES not certainties.

FLORIDA v J.L. Supp (2000) Police received a tip that black man in plaid shirt outside a theatre was carrying a gun.Police then Stopped and frisked him finding a gun. Court found this was very different than its holding in

Alabama v White because even though both were from anonymous tips, White gave many detailsthat were verified where JL “lacked the moderate indicia of reliability present in White.”

A reasonable Suspicion even though it is a lesser standard than Probable Cause is still required for a TERRY stop anda uncorroborated tip from an anonymous source is not sufficient even to give that suspicion.

A Tip alone is not enough to give reasonable suspicion.

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SIBRON v U.S. (1968) companion to Terry where officer reached simultaneously into suspect’s pocket after saying “you know what I’m after” and held insufficient to justify the intrusion by police upon individuals personal property.

no valid SITA since no arrest…. Even if he had reasonable suspicion Unconstitutional because reached Into pocket.

ALABAMA v WHITE (1990) an anonymous tip to police told them White would drive a particular car, to aparticular location, with 1oz of cocaine in a brown attaché. Police followed until just before the finaltipped destination then stopped the car and asked to search the attaché where cocaine was found.

HELD: The stop is upheld because GATES’ “totality of the circumstances” looks both to quantity and qualityof information to be taken into account to determine reasonable suspicion.

Therefore, the WHITE tip had been sufficiently corroborated to furnish reasonable suspicion of criminal activity to justify the investigative stop without violating the 4th amendment protections

U.S. v SOKOLOW (1989) 6 listed factors gave police what the court classified as a reasonable suspicion that ∆was a drug courier. In upholding the conviction the SC held that for a reasonable suspicion to be valid, that the officers must be able to ARTICULATE the factors leading to the suspicion.DISSENT was concerned that SOKOLOW matched the DEA drug courier profile.

U.S. v HENSLEY (1985) Reliance on a flyer or bulletin justifies a stop to check ID, ask questions, and briefly detain WHEN those flyers are issued on a basis of specific and Articulable facts supporting

reasonable suspicion. From this it means that investigative stops to investigate PAST criminal activity is allowable when

balancing the nature and quality of the intrusion against the Governmental interests ….

TERRY stops investigate ongoing or imminent criminal activity in which the Gov’t has a clearer interest.Hensley’s govt’l interests in a past crime are not as easily satisfied. Plus after ,…no exigencies exist.

ILLINOIS v WARDLOW supp (2000) Chicago officer in last car of a 4 car caravan converging on a high drug/crime area saw unprovoked ∆ run away upon seeing police. Officer TERRY stopped the ∆ and found a gun for which he was convicted of carrying. An individual’s presence in a high crime area does not in itself give police sufficient suspicion to

search an individual, But officers are not required to ignore the relevant circumstances of location in determining if there is a reasonable, specific, and articulable acts that raise suspicion of criminal activity.

Refusal to cooperate does not raise enough suspicion without more, but “unprovoked flight is more than refusal to cooperate….”

D. Permissible Extent of temporary seizure cb325

Most often it is on a case by case basis where 25 minutes has been too long yet 60 minutes not….

FLORIDA v ROYER (1983) cb 326Royer removed from airport concourse to an interrogation room where police “requested” the key to Royer’s

luggage which he gave them. It appeared the primary purpose was NOT in briefly interrogating Royer about his luggage but was IN FACT to get into his LUGGAGE which was not discussed untilRoyer removed into the interrogation room.

In fact, less intrusive methods like dogs may have been available.There was enough for a TERRY stop (fitting the profile and luggage ticket name different), but can not be

longer than necessary …Consent was ineffective because he could not leave (involuntary consent)

U.S. v SHARPE (1985) cb 327Agent patrolling Highway for drug trafficking noticed a Pontiac and truck in tandem. He called for assistance,

he stopped the Pontiac, and the truck “continued on” and was later stopped. By the time agent hadanother officer to handle the Pontiac, Savage in the Truck had waited 20 minutes in detention.Agent noticed the odor of marijuana coming from the bales of dope on the truck.

Court held this was not an unreasonable investigative detention. Court acknowledged the appeal of a brightline test such as the MCPAP’s 20 minutes, but indicated common sense and ordinary human

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experience must govern over rigid criteria (CASE-By-Case). The question to answer is whether the police diligently pursued a means of investigation likely to

confirm or dispel the suspicions promptly.

KOLENDER v LAWSON (1983) cb 328Court overturned a statute allowing criminal sanctions for failure to produce “credible and reliable” ID for

persons lawfully stopped under a TERRY stop.

OHIO v ROBINETTE (1996) cb 330Robinette stopped for a traffic ticket. Officer gave the citation, returned Robinette’s credentials, then

engaged in “consensual” banter in order to perform a “consensual” search of the car.HELD: Officer does not need to tell the detainee that he is free to go before the officer engages in

attempting to gain consent to search.DISSENT: A reasonable person would assume he was NOT free to go until the officer said so as indicated

by the officer’s 786 consent searches in just one year. By the time of the search, the seizure was illegal since it had extended past its lawful purpose.

E. Temporary Seizure of Effects U.S. v PLACE (1983) cb331 HELD: It was NOT reasonable for authorities under TERRY to seize suspect’s

luggage to transport it to another location for a search by a canine. Even though the search was only 90 minutes, it did intrude on BOTH the possessory interests in the luggage as well as his liberty to proceed withhis itinerary. It did effectively restrain him. TERRY requires the brevity of the invasion to be minimally intrusive and justified by a reasonable suspicion.

Officers could have had a drug dog at the airport considering they knew where he would be and when.Canine sniffs are NOT searches

F. Protective Search

Personal observations not required to authorize a TERRY stop as under ADAMS v WILLIAMS cb333. so long as there is reliability and veracity of knowledge of the third party. MINNESOTA v DICKERSON cb 334 Bad frisk because officer squeezed lump he knew not to be a weapon.

What if no weapon found but the Terry pat-down gave probable cause for drugs???? MICHIGAN v LONG (1983) cb 334.

Protective search of passenger compartment of a car is OKOfficers ask for Id and Registration. Officers see big hunting knife in car and TERRY search Long and Car

that Terry was returning to get the registration. Officers find drugs in Car. Seeing the weapon while investigating another offense which could indicate suspect’s dangerousness is OK.

Officer is entitled to at lease “ascertain the identity of the suspect” or else “the right to stop him can serveno useful purpose” as per State v Flynn where officer removed a wallet from man who refused toproduce identification.

G. Other brief detention for investigation DAVIS v MISSISSIPPI (1969) cb 336

Court held detention of 25 men to fingerprint (including the guilty one) was a violation of the 4th amendmentprotections against seizure. In this case, there were no real leads except a general description.

BUT fingerprinting may be allowed on evidence that otherwise would be insufficient for an arrest.

No 4th amendment violation occurs in the subpoenaing witnesses to a grand Jury. No probable cause OR reasonableness is needed because Grand Jury is not a seizure. AND there are no expectations of privacy in a voice as held in U.S. v Dianisio.

DUNAWAY v NEW YORK (1979) cb 337

Police “picked up” ∆ suspecting he was involved in robbery and homicide, but did not have PC to arrest.

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After being read MIRANDA and within 1 hour in the interrogation room, he confessed. Court found it Indistinguishable from a “traditional” arrest. He did not reasonably feel free to go at HIS will.

“reasonable police conduct under the circumstances” does NOT satisfy the 4th Amendment rights.

§8 Administrative Inspections & Regulatory searches: More on Balancing the need against the Invasion of Privacy

CAMARA v Municipal Court (1967) Fire, health, and housing code inspections…Safety inspections Administrative Inspections are NOT exceptions to a need for a Warrant, but the ability to get the warrantis easier because it is not necessary to show probable cause.IMPERMISSIBLE to do a pick and choose inspection. If reason for the search is NOT safety but to get

evidence of crime ,then PC is required.NY v BURGER cb 340 upheld warrantless searches of junkyards (business premises) to try to recover stolen

property. Must be searched as part of an overall established policy of searching business premises.Is there any expectation of privacy?!?

US v RAMSEY (1977) Border searches - upheld reasonable customs inspections of mail entering the U.S. but not reading it. Reading the mail requires probable cause and a warrant. Non routine border inspections require a “real suspicion” for a strip search or a “clear indication” for a body cavity search.

fixed vehicle search points have generally been upheld. ALMEIDA-SANCHEZ v US (1973) Vehicle check-points searching for illegal aliens required at least

reasonable suspicion (reasonable articulable suspicion based on facts).

but racial deference to a second stop point seems to be allowable. US v MARINEZ-FUERTE (1976) Affirmed that brief questioning of vehicle occupants at remote checkpoints

is a minimal invasion where the officer has no discretion and therefore is not in violation of 4th amendment.

Delaware v PROUSE (1979) Absent reasonable suspicion, police may NOT stop individual cars to ask to seelicense and registration, in part because it allows too much officer discretion.

Michigan Dep’t of State Police v SITZ (1990) cb 341 Upheld constitutionality of a sobriety checkpoints. BALANCE 1) slight intrusion Primary goal of SAFETY not with purpose of gathering Criminal Evidence

2) Program limited the officer’s discretion3) the program addressed a serious problem4) the record supported that checkpoints were among THE “reasonable alternatives” for dealing w problem

fear and surprise are factors to be considered, but balance the safety of the roadways to leaving a drunk driver

New Jersey v T.L.O. (1985) struck balance between school child’s legitimate expectations of privacy and school’sequally legit need to maintain an healthy learning environment.

1) no need for warrant for students under school’s authority2) search is justified by lower standard of Reasonable Grounds not P.C.3) Search related to objectives and not excessively intrusive in light of students age and gender.

GRIFFIN v Wisconsin (1987) a State’s operation of a probation system presents “special needs” which may allowdeparture from the usual warrant and P.C. requirements.

National Treasury Employees Union v VON RAAB (1989) Court upheld suspicionless drug testing of employeesseeking promotion where drug use would interfere with effective performance of job duties….

SKINNER v Railway Labor Executives’ Ass’n (1989) Upheld mandatory drug testing of RailRoad employeesfollowing major train accidents…

VERNONIA School District v Acton (1995) Upheld a 10% per week random drug testing of student athletes.Because of them having lower expectations of privacy in part due to public showers. Studies showed

increased drug use among student athletes. Blanket searches intrude more than searches based on suspicion.

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Not yet resolved by SC is ALL the student population can be tested for drug use. Probably would not pass constitutional muster.

§9 Consent Searches

SCHNECKLOTH v BUSTAMONTE (1973) what is consent cb 343FACTS:ISSUE: Must it be shown that a ∆ who consented to a search knew of his right to refuse consent in order for

the consent to be valid?HELD: NO. it would impair searches. Consent must be Freely and Intelligently given.

Consent must be obtained “voluntarily”. But no requirement to inform of a right to refuse consent.Consent can not be coerced by explicit or implicit means, by implied threat or covert force.“voluntariness” is a question of fact to be determined from all the circumstances and ∆’s right to

refusal is not important to be shown. It is said for a consent to be voluntary, it must be UNEQUIVOCAL, SPECIFIC, and INTELLIGENTLY

GIVEN, UNCONTAMINATED by duress or coercion, and is NOT lightly to be INFERRED.If consent is acquiesced after a police claim of possession of a warrant, it is not sufficient consent.

Fruit of the poisonous tree of WONG SUN v U.S. would render consent ineffective because of prior illegal arrest.

ILLINOIS v RODRIGUEZ (1990) Third Party Consent cb 352FACTS: Gail Fischer gave police consent to enter apartment of ∆. Fischer told police it was “our” apartment &

that she had clothes and furniture there. Police entered and found cocaine and other drug paraphernalia.Short rule: 4th amendment prohibits warrantless entry without consent given by property possessor OR

a third party who possesses common authority over the premises.ISSUE: Can officers act upon a reasonable belief that a third party actually has authority to grant consent

without violating the 4th amendment protections.HELD: YES. A mistaken reasonable belief by officers will function as if the belief is factually true as to

the grant of Consent.Police are protected by a magistrate’s blunder that is reasonable. …. …. ….

Consent must be VOLUNTARY under 4th amendment. No requirement of warning in gaining 4th amendment consent.Not have to say “if I find drugs you will be prosecuted…”

SCOPE of a search is only as broad as consent given. Consent can be revoked at any time3d party consent is OK where 3d party has same authority to use. Duress and coercion can invalidate consent

JOHNSON V ZERBST consent must be KNOWING, Intellectual, and voluntary to waive 5th amend , 6th speedy trial, right to counsel, Jury trial….

Courts indulge EVERY reasonable presumption AGAINST waiver of fundamental rights….Burden on state to prove an intentional relinquishment or abandonment of a known privilege.

4th amendment only requires consent to be voluntary.

Ch 8 Police Interrogation and Confessions

Fifth Amendment … ”nor shall be compelled in any criminal case to be a witness against himself…” have to do with reliability, voluntariness, trustworthiness

Due process of 14th focuses on voluntariness – can not deprive of life, liberty or property…. Our system is ADVERSARIAL not ACCUSATORIAL system cb 453

interested in the integrity of Police, but will allow some leeway to the Police INVOLUNTARINESS is a matter of facts on the circumstances surrounding confession – length of interrogation, attorney consultation, Methods

to obtain (.. MINCEY v ARIZONA cb 456 note b.

§1 Some different Perspectives (background type articles) skimmed

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Fred E. Inbau: Police interrogation – a practical Necessity cb 439 – 443 3 major points

Yale Kamisar: Equal justice in the gatehouses and mansions of the American criminal procedure cb 443 – 447

Joseph D Grano – Confessions, Truth, and the Law cb 447 – 451

§2 Historical Background

A. The interests protected by the Due Process “voluntariness” Test for admitting confessions cb 451

B. The shortcomings of the “voluntariness” test‘voluntariness’ is both too broad and too narrow a concept at the same time.coercion can be elusive and measureless standard esp. in Psychological coercion.

C. The McNabb – Mallory Rule: Supervisory Authority over Federal Criminal Justice vs. 14th Amend Due Process

MCNABB V U.S. (1943) cb 457While the power of the Court to upset STATE convictions is limited to the enforcement of the 14th amendment,

the Standards of FEDERAL criminal justice are NOT “satisfied merely by observance of those minimal historic safeguards.”

Rather, the Court can formulate rules of evidence in the exercise of its “supervisory authority”

MALLORY v. U.S. (1957) cb 458Court Refused to Sanction extended delay, resulting in confession, without subordinating to the discretion of

arresting officers in finding exceptional circumstances for its disregard [ FRCP 5(a) ]. Stated it was not function of police to arrest at large and later interrogate all to determine who to charge.

arrests should be based on P.C.

D. The right to counsel and the analogy to the accusatorial, adversary trial

CROOKER v CALIFORNIA (1958) cb 459Sup Court Upheld the conviction of a law student, who was fully aware of his right to remain silent, confessed

to murder after several hours of interrogation when the police had refused to allow him access to counsel. Court felt this would effectively preclude both Fair and Unfair police questioning.Due process is much more flexible.

Dissent: 4 Justices

CICENIA v LA GAY (1958) companion case to CROOKER cb 459Court also upheld conviction of less educated man who did not know to ask for counsel, and where that

counsel was asking for access to client but denied by the police.

SPANO v NEW YORK (1959) held that a persons formal right to counsel begins when a person is formally chargedeither by indictment or by being informed that his right to counsel had begun. Does not mean indigent peopleare yet entitled to appointed counsel.

E. MASSIAH and ESCOBEDO: The Court closes in on the “confession problem”

MASSIAH v U.S. (1964) cb 460Bugging device placed by friend Colson in Massiah’s car where he made damaging admissions.Court held evidence Inadmissible because he right to counsel had arisen because it was “completely

extrajudicial” police-orchestrated proceeding designed to get incriminating statements. Colson held to be a police agent.

Once adversary proceedings have commenced against ∆, then ∆ has a right to legal representation when gov’tinterrogates him.

ESCOBEDO v ILLINOIS (1964) cb462

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not an interrogation, it was an arranged confrontation. Police investigators FOCUSED on Escobedo.FOCUS test REJECTED as unworkable. Events that trigger right to counsel under 6 5th amendment is the INITIATION of ADVERSARIAL or Judicial

Proceedings A specific test was used in this case to determine if this shift was madeCourt recognizes the ABSOLUTE right to remain silent.A Test is when ∆ asks for and is denied access to counsel…If denied counsel after it is requested, then police questions cease being a general

investigation of an “unsolved crime” and becomes an interrogation. and denies ∆ “Assistance of Counsel” in violation of 6th amendment…. The reading of confessions did not initially fall under the 5th Amendment. Police do not have legal compulsion to get you to answer questions. Court in process of eliminating “prime suspect” – “focal point” - “accusatory state” test(s)

in an effort to “[seek] a protective device to dispel the compelling atmosphere of interrogation….” MALLOY v HOGAN (1964) extended the privilege against self-incrimination in criminal proceedings to the

States through the 14th amendment.

§3 The MIRANDA “Revolution”

MIRANDA v ARIZONA (1966) is a compilation of 4 different Cases cb475 reaffirmed under DICKERSON (2000)PURPOSE UNDER MIRANDA = to prevent government officials form using coercive nature of confinement

protects 5th Amendment rights to extract confessions that would not be given in an unrestrained environment.”

FACTS: 4 cases where confessions resulted after incommunicado interrogation in a police-dominated atmosphere where the ∆’s did not know of their rights to silence or attorneys.

Reason cases granted CERT:“…to give concrete constitutional guidelines for law enforcement …and courts….”

HELD: When police take a person into custody, it is necessary to inform him of 4 rights prior to “custodial interrogation”. Questions must stop if at any time suspect requests his attorney.

A confession used in violation of MIRANDA can only be used to impeach ∆’s testimony at trial, notto establish prosecution’s case-in-chief.

Ernesto MIRANDA arrested for forcible rape that occurred 10 days earlier. Ernesto was 23 year old uneducated, indigent, mentally challenged man.

VIGNERA v New York cb 488WESTOVER v U.S.CALIFORNIA v STEWART cb 489

Sup Ct Holds in this 4case package that 1) right to remain silent2) knowledge of anything you say can be used against you3) right to consult with an attorney4) if you can’t afford attorney one will be appointed

CUSTODY and INTERROGATION are the two triggers for MIRANDA warnings. Subsequent Cases – Court given stingy interpretation to “custody” but generous reading to “interrogation”

interrogation is questions reasonably geared to obtain incriminating evidence. To use by prosecution must give WAIVER (Johnson v Zerfst intelligent, knowingly, voluntarily) and

must have given Warnings.

SILENCE is NOT a waiver while an affirmative request is an absolute assertion of the right to counsel. WAIVER must be KNOWING and INTELLIGENT

Can not invoke MIRANDA rights anticipatorily in context Other than “custodial interrogation.” (McNEIL v Wissonsin)

Chapter 223, Title 18 USC §3501 (Title II of the Omnibus Crime Control and Safe Streets Act of 1968) cb498Purports to “repeal” MIRANDA and MCNABB-MALLORY rule in federal prosecutions. DICKERSON holds that congress can not overrule a constitutional basis established in MIRANDA

Therefore, the following code is now ineffective after DICKERSON (2000).18 USC §3501 Admissibility of Confessions [determining the …]

(a) in any federal criminal prosecution a “confession” is admissible in evidence if freely given

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(“voluntary”) and the trial judge shall initially determine voluntariness.(b) The trial judge in determining voluntariness shall look at totality of circumstances

surrounding confession (1) elapsed time (2) ∆ know nature of crime (3) did ∆ know of right to remain silent(4) did ∆ know of right to counsel prior to questioning (5) did ∆ have counsel when gave confession.)

(c) confessions where ∆’s time lapse from custody to Magistrate not more than 6 hours or isotherwise reasonable

(d) Any confession given voluntarily without prompting by police will be admissible(e) “confession” means any confession of guilt of any criminal offense or any self-

incriminating statement made or given orally or in writing. Sup Ct has supervisory power over lower federal courts. This is how Sup Ct was able to apply MIRANDA to Fed

and State courts.If MIRANDA not Constitutional, then 3 of the 4 cases were illegally decided.

The Implications of the TUCKER – QUARLES – ELSTAD way of thinking about Miranda MICHIGAN v TUCKER (1974) cb 502

Because MIRANDA applied to all cases that started TRIAL after it was decided, this case fell into a hole. Tucker had already been questioned in violation of would be MIRANDA, but started trial after Miranda.Witness testimony whose identity had been learned by questioning ∆ w/o Miranda warnings Was ADMISSIBLE.Police here pursued witness testimony in Good Faith therefore deterrence of exclusionary rule not applicable.Witness testimony did not qualify as “Self-Incrimination”

N.Y. v QUARLES (1984) Held evidence gun is still admissible even though Miranda warnings not given where Police acting for the Public Safety fail to give the warnings prior to a custodial interrogation. The “mere fact that suspect has made an unwarned admission does not warrant a presumption of compulsion.” “gun is over there” Public Safety Exception. ONE month AFTER WILLIAMS II.

ELSTAD Held a damaging confession given after Miranda warnings are NOT Excluded even when the damagingconfession comes after a prior statement obtained in violation of Miranda.

prophylactic are measures designed to protect those Constitutional rights.UNITED STATES v DICKERSON 4th circuit 1999

Adopted Scalia’s viewpoint that 18 USC §3501 is a provision of law directed to the COURTS. 4th circuit focused on Burger and Rehnquist Courts’ constant referral to Miranda warnings as “prophylactic”

and “not themselves rights protected by the Constitution” And HELD that §3501 controls not MIRANDA in admitting a confession into evidence.Since the Sup Court did not view rights as Constitutional, then Congress would have authority to modify rules.

DICKERSON v U.S. (2000) suppReversed 4th Circuit decision and held Miranda Controls admission of evidence.FACTS: Dickerson indicted for Bank robbery and conspiracy to commit bank robbery.

Dickerson made statements at FBI field office before receiving Miranda Warnings.ISSUE: What controls - §3501 or Miranda (Miranda can only control if it is a constitutional decision of Court)HELD: MIRANDA is a Constitutional decision and thus controls the admissibility of custodial statements.Ration: Due Process “voluntariness” jurisprudence stands. i.e. BROWN v Mississippi type confessions.

applied the 5th Amend “no person shall be compelled to be a witness against himself” by 14th§3501 deemed voluntariness as the touchstone of admissibility. “reliance on the traditional totality of the circumstances test raised a risk of overlooking an involuntary

custodial confession, a risk that the Court found unacceptably great.”MIRANDA sought to give “concrete constitutional guidelines” and MIRANDA invited legislative solutions different from MIRANDA that were “at lease as effective in apprising … of rights…”Stare Decisis – Miranda on the books for almost 34 years.Police were not hobbled in instigating MIRANDA.

Dissent: Scalia and Thomas dissent. Tucker, Hass, Quarles, and Elstad all recognized that violating Mirandadid not in itself violate the Constitutional Rights of the accused. If Violating Miranda is nota violation of the Constitution, then Miranda can not be a Constitutional right….

Scalia says these previous cases are Holdings not Dicta like the Majority say. and are extraconstitutional constraints upon Congress and the States

Scalia chastises majority for saying that there is nothing wrong with buttressing prophylactic rulesto Constitutional Rights and enforcing them against Congress and the States.

A repeated mistake does not make it eventually right.Scalia really hates the argument that Miranda is a part of our culture and should thus stay….

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He says Court should admit mistake and allow people decide for themselves what they want.After the Case remanded Dickerson Testified and convicted but for less time than otherwise would have been.

Should a ∆ take stand, the prosecution can use ∆’s prior remaining silent against him. If arrested w/o Miranda, your comments can be used to impeach you. a second Mirandized interrogation can be used following a first unMirandized interrogation so long as enough

time has passed and get a new waiver.. If suspect at police station voluntarily, then they are generally not in custody. Miranda Waiver is knowing, intelligent, and voluntary.

Intelligent = suspect aware of their options to talk or shut up.Knowing = perhaps a superfluous term since it is not spelled out by Sup Ct

Applying and explaining Miranda cb510

DUCKWORTH v EAGAN (1989) cb 511 adequacy of warningsEagan taken to Police headquarters and given a waiver to sign. He denied any guilt of stabbing the woman.

Eagan locked up for 29 hours and then re-read a slightly different waiver and thereafter confessed.Because the waiver given by the police exceeded what Miranda Requires, then it was sufficient.

the law in that jurisdiction is you don’t get a lawyer until your first appearance in court.Dissent: This overturned the 7th circuit Ct App which felt “if and when you go to court” language implied that

accused is not entitled to counsel unless he goes to court which is erroneous.I agree with the 7th Ct App that the language was vague and misleading.“a police warning must ‘clearly inform’ a suspect taken into custody that if he can not afford an

attorney one will be appointed for him PRIOR to any questioning if he so desires.”

Q.) When should a suspect be told that Silence could in itself be as damning as a confession???!!

COLORADO v SPRING (1987) cb 514 Need for Police admonitions in addition to Miranda

A suspect’s awareness of all possible subjects of questioning before the interrogation is not relevant in determining if suspect voluntarily, knowingly, and intelligently waived his 5th amend privilege.

officer’s silence about what they were actually questioning is not sufficient trickery ….Spring was arrested on interstate firearms shipments. He signed a Waiver that Satisfied MIRANDA.

during that first interrogation, Spring admitted he “shot a guy once.”At a second questioning, Spring again signed a Waiver and confessed to a Murder.Spring contended that because he had not been told of the scope of the first questioning that the comment

was an illegal ‘fruit’ and could not be used as evidence against him.Remember from article cb510, the Constitution Hopes that a suspect stubs his own toe.

CUSTODY REQUIREMENT Custody v Focus cb 515 – 519BECKWITH v U.S. (1976) Rejected the Focus test in finding that simply because the Beckwith was the FOCUS of an IRS investigation,

that he was thus entitled to Miranda protection. Just because IRS questioned him in his home as the focus of an investigation does not mean that he was entitled to Miranda Rights yet because no elements inherently coercive existed yet.

STANSBURY v CALIFORNIA (1994) held similarly to BECKWITH that unless they are communicated to the person being questioned, an officer’s “evolving but unarticulated suspicions do not affect the objective circumstances of on interrogation or interview and thus cannot affect the MIRANDA custody inquiry.”

Common problem is determining if questioning on the street arises to “custodial interrogation”REMEMBER a person is in police custody when he no longer feels free to ignore the officer. Ref FLORIDA v BOSTICK p20

and OHIO v ROBINETTE p22.Cases like U.S. v MESA indicate that perhaps when police have immediate control over suspect (like barricaded in motel) that is custody.

BERKEMER v McCARTY (1984) cb 518Court held that the “roadside questioning of a motorist detained pursuant to a routine traffic stop does NOT

amount to “custodial interrogation.” 1) usually Brief and 2) usually not feel like at complete mercy of Police. The initial traffic offense is a misdemeanor – No misdemeanor exception to MIRANDA

Custody does not begin simply because the officer plans to … the suspect must know he is reasonably in custodywithout regard to whether that suspect is wrong in thinking they in custody or not in custody.

ATWATER v LAGO VISTA (2001) warrantless arrest for minor criminal (traffic) offense INDIANAPOLIS v EDMOND (drug checkpoint, canine sniffing without any other reason for stopping like License..)

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Not for public safety therefore the intrusion is too great. KYLLO v OREGON (june 2001) (4th amendment violated by Thermal Imaging)

Questioning in a business office generally not Custody or in your home generally not custody. Probationary meetings are NOT custodial. Voluntary appearances Not custodial

Interrogation defined under MIRANDA

RHODE ISLAND v INNIS (1980) cb 519

INTERROGATION = any words or actions on the part of police that they should know are reasonably likelyto elicit an incriminating response from the suspect. (inculpatory or exculpatory)

FACTS: Innis had been arrested for murder and was being transported to the police station after wanting to talk to his lawyer. The officers transporting Innis expressed “God Forbid[den]” concern that a child at the handicapped school get the hidden shotgun. Innis at this point told police to turn around and he took them and recovered the hidden gun under some rocks.

ISSUE: If police know that their actions would reasonably illicit an incriminating response from suspect, thendo those actions constitute an “interrogation” engaging suspect’s MIRANDA rights?

HELD: Yes: “interrogation” under MIRANDA covers express questioning or its functional equivalentHowever, the officers’ few remarks not directed to Innis can not be interpreted that Police reasonably

knew that their “subtle compulsion” was sufficient to equate with “interrogation”. not questioned

Miranda Opinion concerned that the “interrogation environment” would “subjugate the individual to the will of his examiner.” not expected to answer

To hold that interrogation can only be through direct questions places premium on other methodsto extract information.

Must reasonably be known to elicit an incriminating response – officers did not know he had softspot in his heart for handicapped children. Reference later case where police did know.

ARIZONA v MAURO (1987) cb526Wife, who was also a suspect, insisted on talking with her husband. Both had been read MIRANDA rights.

Officer remained in room while two conversed with a tape recorder placed in plain sight.Mauro incriminated himself in that conversation in the police captain’s officeMauro tells her not to talk to them until you talk to a lawyer used to rebut his insanity defense.

HELD: This was NOT a “custodial interrogation” because of the underlying purpose of MIRANDA to preventgovernment officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.The meeting did not present a “sufficient likelihood of incrimination” to satisfy INNIS standard.if police used her to elicit a confession then it would be an endrun (agency) around 6th amendment.Not eavesdropping on privileged (spousal) conversation because Mauros knew Police in room record.Not a 4th amendment violation because seizure of words was not surreptitious.

Dissent: The Government took advantage of Mrs. Mauro’s request in setting up the confrontation. Here, the police knew or should have known that Incriminating statements would be made.

The “jail plant” situation; “surreptitious interrogation” cb 528 ILLINOIS v PERKINS (1990) - Police took Perkins into custody on charges unrelated to the murder police were

attempting to gain information on. Perkins was not read MIRANDA rights. Put undercover officer in hold cell.Court held this was not a situation where MIRANDA rights arose because he was not interrogated by

“police blue” but rather by “prison gray.” This did not create the “police dominated atmosphere”the Court felt was required by MIRANDA.

No Coercion / compulsion. Coercion occurs when someone feels compulsed to answer .it would likely be a different story is Perkins was afraid he would get beaten if he didn’t answer if he had “done” anybody.

Strategic Deception is what police do.

6th amendment right to counsel not triggered yet versus the case where friend recorded conversation in car.6th amendment right is OFFENSE SPECIFIC.

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DISSENT: No Miranda given AND the psychological pressures inherent in confinement increase suspect’sanxiety…giving rise to pressures unique to custody to allow police deceptive interrogation

“Custodial Interrogation” and the “booking question exception” to Miranda PENNSYLVANIA v MUNIZ (1990) Muniz taken into routine custody for DUI. Muniz was told he was being

video taped but not read his MIRANDA. Muniz asked 6 booking questions and a 6th birthday question (which

was later striken aginst MIRANDA as it was not testimonial or a Booking Question). The tape indicated his drunken answers.

5th amendment only covers testimonial / communicative self – incriminating evidence. Physical evidence differentTo be testimonial communication must explicitly or implicitly disclose a factual assertion

Ct ruled slurring is not testimonial (there are other reasons for slurring)The 6th B-Day question is testimonial because he is forced to make a factual assertation.

3 choices, Lie, truth, or shut up. The instructions in a sobriety test are not seeking testimonial answers.

Court held so long as questions were not “testimonial” then they would not be in violation of MIRANDA.There fore his name, birthday, address…. would not be testimonial in violation of MIRANDA

4 Justices felt questions not “TESTIMONIAL” 4 Justices felt questions should be “BOOKING EXCEPTION”

“Public Safety” exception to MIRANDA

NEW YORK v QUARLES (1984) cb 532FACTS: Police apprehended Quarles in a supermarket after receiving report of a rape where the armed

assailant entered that store and after Quarles Fled to the store after seeing police.Police asked Quarles where the gun was and Quarles nodded “the GUN is over there.” 4 officers foundgun behind some cans in a carton.

ISSUE: Can police claim a bogus Public Safety need to question w/o Miranda?HELD: Because Quarles would not likely have responded to where the gun was had police given him

MIRANDA, then the overall need for public safety outweighs the advantages of giving MIRANDA .Therefore, the evidence should not be suppressed.

Concur: The statement should be struck but the gun should not be because it would have been found and wastherefore not testimonial evidence.

Dissent: Because 4 officers surrounded Quarles, there was no threat to Public Safety.

“Rescue Doctrine” notes p538 expand Public safety in lower courts.

Waiver – a single officer’s testimony that they gave ∆ the Miranda is sufficient.Implied waiver created after Miranda given and ∆ speaks voluntarily. (cb544 JOHNSON)

CONN V BARRETT cb545Barrett invoked limited right to counsel in a written statement not the oral statement given.Declaration of interest allows the evidence in….

FARE v MICHAEL C cb546asked to speak to probation officer. Court held this was not an invocation of 5th amendment rights.

validity of waiver returns to “totality of circumstances’ including Age, experience, background, intelligence…..

MICHIGAN v MOSELY cb547Test is whether right(to remain silent) to cut off questioning is scrupulously honored when invoked.Mosely not want to talk about robberies and did not ASK FOR A LAWYER.A fresh waning and 2 hour delay questioning on an unrelated offense Court held his Right was scrupulously H

EDWARDS v ARIZONA cb548Police question until he requests an attorneyPolice next day re-read Miranda and he confesses.SC held that because he requested an attorney for custodial interrogation and he did not validly waive that

right. The Waiver after invoked right to counsel must be Knowing, voluntary, and Intelligent. UNLESSsuspect initiates further contact with the police, not the police with suspect as here.

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Waiver is not shown by simply answering questions.

ARIZONA v ROBERSON cb 548After right to counsel invoked, police can not even initiate interrogation about crimes Other than the one

the suspect has invoked right to counsel under the 6th amendment unless suspect initiates further com.

still 5th amendment self incrimination which is NOT offense SPECIFIC applies to all vs. 6th is offense specific rt 2 counsel

6th amend triggered by adversarial judicial proceedings for critical stages of prosecution.MINNICK v MISSISSIPPI cb 549

When an accused requests counsel, interrogation must cease, and officials may not reinstate interrogation without counsel present, whether or not the accused has consulted with him

OREGON v BRADSHAW cb557Bradshaw requested counsel, questions stopped, then Bradshaw asked “what is going to happen to me know?

1) whether suspect initiated2) whether “totality of circumstances” indicates relatedness to investigation

DAVIS v U.S.Must be clear and specific in requesting a lawyer and statements made AFTER that request are admissibleProphylactic rule of EDWARDS, must unambiguously ask for a lawyer.

Application of EDWARDS 5th amend analysis to 6th Amend right to counsel MICHIGAN v JACKSON cb565

Facts: ∆s waived rights and Agreed to talk to police before their “first appearance;” 5th amendment waiver but when brought before (initiation of adversarial judicial proceedings.)

the magistrate, they requested counsel appointed since they were indigent. After the Arraignment, police readvised ∆s of rights before ∆s talked to counsel and they signed written waivers and confessedNot yet furnished counsel under 6th amendment right which was affirmatively asserted. ROBERSON

Holding:EDWARDS applies by analogy and prohibits post-arraignment waivers at which ∆ requested counseland makes confession invalid in violation of 6th amendment rights.

6th attaches at critical stages of prosecution AND adversarial judicial proceedings.

McNEIL v WISCONSIN (1991) cb566The right to counsel is “offense-specific” 6th amendment right invocation offers less protection than one

who asserts 5th amendment based Miranda-Edwards rights at a custodial interrogation.FACTS: McNeil represented at Bail hearing from an armed robbery by attorney. Later that night, Sheriff

questioned McNeil w/o attorney in jail on unrelated murder, attempted murder, and burglary.Sheriff read McNeil Miranda rights and McNeil waived them.

Held: 6th amend right to counsel can not be invoked once for all future prosecutions because it does notattach until a prosecution (adversarial judicial proceedings) commences. Public policy of clear and unequivocal standards and of not prohibiting police from questioning

those in custody from other crimes where no unwillingness to talk has yet been expressed.5th amendment rights protected by MIRANDA effectively waived knowingly, voluntarily…and thus

can not apply to exclude the evidence.

3 sources for ∆s to argue for exclusion of incriminating evidence5th amendment protection of self incrimination (MIRANDA)Initiation usually arises in 5th A Cases.6th amend if adversarial proceedings commenced: after 6th attaches, any further questioning by

police would be critical states of the prosecution.Due Process’s voluntariness 5th and 14th amendments for fed and binding of the State Gov’ts.

Suspect not requesting a lawyer but one has been retained for him… MORAN v BURBINE (1986) cb571

A voluntary confession obtained by police, who fail to inform a ∆ that an attorney attempted to contact him, isNOT an invalid intrusion upon ∆’s Miranda rights.

Facts: a suspect informed of and who waived Miranda rights confessed to a murder. While he was in

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custody, his sister retained him a lawyer but he did not know it and the lawyer was told ∆ would not be further questioned. Arrested for B&E, questioned for Hickey Murderhe has no 6th amendment right to counsel yet he was not chargedProvidence police were not done with ∆ yet, just the Cranston police were.

Held: Neither police conduct to attorney nor failure to inform ∆ of attorney trying to contact him taintsthe validity of ∆’s waivers and therefore the evidence is not excluded.

The right to request an attorney belongs SOLELY to a suspect not benign third parties. ie family. Waiver must be “voluntarily, knowingly and intelligently” Johnson v Zerbst

Voluntary = product of a free and deliberate choice rather than coercion, intimidation, or deception.Knowingly and intelligently = full awareness of (1) the nature of the right being abandoned and

(2) the consequences of the decision to abandon it.The state of mind of Police is irrelevant in determining validity of ∆’s waiver.The police withholding of info about his lawyer waiting did not affect voluntariness or Awareness.14th amendment issue not violated as fundamentally unfair. Court felt police behavior was egregious,

but not enough to make waiver invalid. To be fundamentally unfair, police conduct must be shocking

WITHROW v WILLIAMS (1993) cb583RULE: State prisoners are also allowed federal habeas jurisdiction when convictions rest on statements

obtained in violation of Miranda’s Safeguards.MIRANDA quote : One of the principal purposes of Miranda is “to make the individual more acutely aware that he is faced

with a phase of the adversary system – that he is not in the presence of persons acting solely in his interest.”

§5 MASSIAH revisited: Massiah and Miranda compared and contrasted

BREWER v WILLIAMS (WILLIAMS I) (1977) cb619RULE: Police cannot interrogate a ∆ represented by counsel after a refusal to speak without the presence of

such counsel.FACTS: Deeply religious Mental hospital escapee Williams abducted and killed a 10 year old girl in Des

Moines, Iowa. A warrant was issued for his arrest and he surrendered in Davenport. William’s counsel in Des Moines and Davenport both instructed Williams not to talk to police on the trip back to Des Moines and Both attorneys told police not to interrogate Williams either. Detective gave a “Christian Burial Speech” which the State prosecution admitted was “tantamountto interrogation.” Williams took detectives to 3 locations, the final location her body was found.

ISSUE: Was the interrogation w/o known counsel violative of 6th and 14th amendments?Held: Yes. No effective waiver happened because at no point did ∆ ever intentionally relinquish or

abandon his claim to have counsel present when he was questioned in fact he during car ride said he would tell

everything after he talked to his lawyer in Des Moines. Waiver requires both comprehension and relinquishment.Additionally, police knew not to question him during this trip. Court did not hold that s suspect can not waive his 6th amendment rights, only held he Did Not waive.

reconcile Officer in INNIS did not know it would elicit a response and not directed directly to Innis.with Officer in Williams directly communicates and calls him Reverend playing in Williams religious beliefsINNIS and played on Williams’ mental frailty.

Perhaps the fact that Innis was not engaged and Williams was by police can reconcile the differences.But girl in Williams could still be alive where Innis victim was definitely dead.

Dissent: White, J. is concerned if statements are inculpatory

STONE v POWELL Issue where fed is barred from hearing 4th amendment habeas claims if those claims had full and fair hearing at state court.

RULE: Where the State has provided an opportunity for full and fair litigation of a Fourth amendment claim,the constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.

What constitutes valid waiver of 6th amendment right PATTERSON v ILLINOIS (1988) cb629

Rule: MIRANDA warnings are sufficient to apprise a suspect of the nature of both 5th and 6th Amend rights.FACTS: Patterson arrested in investigation of murder of Jackson. Patterson waived his rights and maintained

his innocence. After 2 days he was told he had been INDICTED and would be transferred. He asked

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why another gang member who did everything was not indicted. Patterson signed a written Mirandawaiver form and made incriminating statements.

HELD: The key with a ∆ who waives 6th amend rights during post-indictment questioning is whether he wassufficiently aware of his right to have counsel present and possible consequences of not.

Ration: The possible ramifications of not having counsel at questioning as compared to trial are much less in part because the lawyer’s role in questioning is limited. A waiver at such a minimal stage of trialis allowable so long as it is “knowing and intelligent.”

Argument on appeal is that right to counsel under MIRANDA are different than 6th amend right to counselHELD, there is no difference In waiving rights under 5th or 6th amendments.

Should the Civil Code of PR which forbids opposing counsel to question opposing party without presence of counsel?Most cases hold the anti-contact rule applies to prosecutors, but if the prosecutors conduct satisfies the 6th Amend standards “there is a strong tendency in the decisions to reject a claim that ethics rule has been violated.U.S. v HAMMAD ruled an under cover officer at instructions of prosecutor did violate anti-contact rule.

MAINE v MOULTON (1985) Massiah cb 634Rule: Evidence obtained after 6th amend right to counsel arises where government is investigating a different

crime than ∆’s 6th amend right attached is NOT admissible in any way, shape, or form as it pertainsto the original attached charge.

The attachment triggers a duty not to act in any way to circumvent the 6th amendment attached rights. Facts: Colson here again. Colson rigged with Microphone. Colson and Moulton are actually co-defendants.

Indicted for theft, information gained for murder conspiracy.Police questioned ∆ on different charges while he was in custody and he gave incriminating evidenceon the charges already filed

Dissent: The goal of deterrence of the exclusionary rule should not apply because the police did not seek anyinformation as to related to the attached charges.

U.S. v HENRY (1980) messiah cb 635Government authorities can take no steps they are reasonably sure would elicit incriminating evidence after

the 6th amend right to counsel attaches.Facts: Gov’t ‘s paid informant was positioned as HENRY’s cellmate. Informant did not question Henry, but

did get incriminating evidence’Held: Gov’t agent was not passive because he engaged in conversations with Henry after 6th amendment

rights to counsel attach.Court left door open for gov’t plants who would not initiate ANY conversations yet was in a position

to overhear the damning evidence.

KUHLMANN v WILSON(1986) Jail plant case cb 636Rule: Police can use any statements made by a suspect which are voluntarily given and Without Questioning.FACTS: Police put a cell plant in with Wilson under strict instructions Not to question Wilson, only to listen.

Wilson gave incriminating statements. Wilson Initiated the conversations.There is a difference between a voice that stimulates a conversation and an ear that hears with a suspect.

Could cell plants be a violation of privacy of the 4th amendment? I think no since you should have no expectation of privacy in a jail cell.

Always need a state actor for these rights to be violated. 5,6,4, and 14th amendments. (fundamental fairness, shocks the conscious. 14th amendment is the final stop to protect suspects.)

14th amendment may apply to private citizens who gain info from a known suspect.

§4 The “due process” – “voluntariness” test

Frazier v Cupp Pre Miranda -- Police lie to suspect are generally admissible unless shock the conscious or are likely to elicit false confessions.

Professor White – seriousness of the

How much trickery can police use and leave a valid waiver under Miranda? MILLER v FENTON (1986) cb602

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“good guy approach”FACTS: Police took Miller voluntarily to state police barracks where they received a signed Miranda card.

Miller was suspected of brutally killing Ms. Margolin. Officer Boyce befriended Miller and used no physical coercion. Boyce then appealed to Miller’s conscience. Boyce also gave some factually incorrect info such as the time of Margolin’s death. Boyce also told Miller whoever did the crimes was Mentally ill and needed help.

Issue: Were officer Boyce’s promises manipulative enough to affect the voluntariness of Miller’s confessionHELD: Under the “totality of the circumstances test” Miller’s will was not overborne based on MILLERs

characteristics Miller had high school education, repeatedly stated he know Boyce not his friend, Had been in jail before, etc. but does not weigh Millers subsequent collapse into a catatonic state – shock and

hospitalizedwas this shock the conscious, such that his will was overborne. A lie MIGHT affect the voluntariness

Dissent: Admissions made in reliance upon implied leniency ARE under BRAM Not admissible.

Voluntariness under the 14th amendment Compulsion/coercion? ARIZONA v FULMINANTE (1991) cb612

Facts: Fulminante was convicted of an unrelated federal crime after the murder of his step-daughter.While in prison, Fulminante was ‘befriended’ by Sarivola (who was a paid informant for the FBImasquerading as a organized crime figure. When Fulminante began getting “tough treatment” fromother inmates regarding Step-daughter’s death, Sarivola offered to protect Fulminante if he told himthe whole truth about her death. The confession lead to a death sentence.

HELD: “totality of the circumstances” test determines that Fulminante’s confession was coerced and is thusexcluded.

Because (1) Fulminante was in physical danger from other inmates who suspected Fulminante in the cause of death of daughter a credible threat of physical violence

and (2) Sarivola KNEW Fulminante and used the knowledge that Fulminante was receiving“rough treatment” by offering protection if he confessed.

S.C. found these two State court findings show that Fulminante’s confession was NOT voluntary as hiswill was overborne in such a way as to render his confession the product of coercion.

SC standard of review – must give deference to factual determinations of State courts-Q’s of law is De Novo.

Reliability and no coercion are goals of 14th amend voluntariness test. Fulminante may have ‘confessed’ just to get protection.

Dissent: Other threats not from government, from inmates.

COLORADO v CONNELLY (1986) cb614Facts: Mentally ill person returned to Denver on the “voice of GOD” to confess a murder he did 9 months

earlier to the first officer he found who did not know of Connelly’s mental condition. Officer stopped Connelly, handcuffed him, read him Miranda, then Connelly waived his rights and continued to confess.

Issue: Was the confession of murder given “voluntarily”?HELD: Yes. The purpose of excluding confessions seized in violation of the Constitution is to substantially

deter future violations of the Constitution. Here, Connelly was “coerced” by God who is not an agentof the State. There was NO police overreaching. must be coercive police activity to Binvoluntary.

WAIVER must be shown by a preponderance of the evidence and his mental status is only A factor.

no 6th amendment issues yet. No 5th amendment maybe because he voluntarily found officer – Test for custodyis whether a reasonable person would feel free to ignore officer.Maybe no interrogation because he was actively confessing.

Connelly was suffering “auditory hallucinations”. Miranda given as a precautionary measure in large part.DISSENT: also concerned about reliability from mentally defective suspects.

Truth serum confessions are likely not voluntary even if Freely Given

Ch. 11 Scope of the Exclusionary Rules§2 The “Fruit of the Poisonous Tree” cb785

The doctrine developed from Silverthorne Lumber Co. v U.S. (1920) where the government subpoena’s the very documents it Illegally Seized. Nardone v U.S. (1939) coined the phrase “fruit of the poisonous

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tree.” Nardone also established the “ATTENUATION” doctrine which recognized that even when challenged evidence did not have an “independent source” that it might still be admissible.

WONG SUN v U.S. (1963) cb786FACTS: Police unlawfully broke into Toy’s Laundry and chased Toy into living quarters and handcuffed him.

Toy then told police that Yee was selling Narcotics. Police went to Yee who surrendered Heroin andwho implicated Toy and a third party.

Toy- 4th amend violation Yee- 4th violated Wong Sun – 4th also violated when arrestedreturns to police and gives confessions

Exclusionary rule applies to use in CASE-IN-CHIEF where evidence obtained from illegal arrest.

HELD: Verbal evidence which is derived from an illegal entry is barred by the exclusionary rule just as physical evidence had traditionally been barred.To determine if evidence is “fruit….”, the question is whether granting establishment of the primary

illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” “not whether but for the illegal actions it would not have been discovered.

Wong’s later confessions too attenuated and dissipated the taint.

Toy’s statements should be excluded – illegal breaking, entry, arrestgood news for Yee and Toy as relating to this second violative arrest

Yee also surrender of heroin and statements are fruits of illegal arrest.

voluntariness and free will implicated as necessary by Wong Sun for purging the taint of illegally obtained evidence

A witness may NOT refuse to answer grand jury questions based on illegally obtained evidence.

The challenged evidence is Not a fruit of the prior violation if his guilt can be established by evidence unconnectedwith or “untainted” by the violation. This is the “INDEPENDENT SOURCE” or “INEVITABLEDISCOVERY” rule. In inevitable discovery, the effect simply accelerated the discovery if done in good faith.

how do you purge the taint? BROWN v ILLINOIS (1975) cb 787

Facts: Following Brown’s Illegal arrest for murder, Brown taken to Station where he received and waived Miranda Rights and incriminated himself within two hours.

HELD: Miranda warnings and waivers are not enough to attenuate the “taint of an unconstitutional arrest.”If they were illegal arrests would accelerate. The Court does not like fishing expeditions.Voluntariness remains a threshold requirement, where the Prosecution has the burden of proving.additionally, the illegal arrest should be the proximate cause of the “fruit” TAYLOR v ALABAMA

Taylor v Alabama – 14th violated and confession is excluded as a fruit of coercion of circumstances.

U.S. v CREWS (1980) Crews illegally taken into custody following a robbery. He was ID’d, photographed, ID’d again because he fit the victim’s description of her assailant. The Court held the In-court Identification of Crews was not a “fruit….”

Therefore, a PERSON CAN be the “fruit” of an illegal arrest. no part of in court identificationwas a fruit of the arrest.

PENRI (I) and PENRI (II) Texas mentally retarded inmate on death row with inadequate jury instructionsPENRI (III) is pending and may not need be decided based on another case before Sup. Ct. questioning whether death for Mentally retarded people is Cruel and Unusual. Stanford v Kentucky.(Stanford) asking if our society has evolved to where it is not desirable to execute deficient people.

NEW YORK v HARRIS (1990) cb791 Exclusionary rule under WONG SUNHELD: Where Police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a

statement made by the suspect outside his home even though the statement is obtained after an InHome arrest in violation of PAYTON (pg18).The test is whether the evidence sought to be excluded is the product of illegal activity?

If Yes, perform an ATTENUATION analysis. Is the evidence sought to be introduced bear

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a sufficiently central relationship to the illegality?Facts: Police had probable cause to believe Payton killed a woman. They entered his apartment without a

warrant and arrested him. He received and waived his Miranda rights. Later at the station house, he again waived and signed an inculpatory statement.

Ration: Court again unwilling to adopt a per se rule that would strike all evidence derived from illegal arrest.If he was not home and was later arrested on the street, those later statements would then be admissible

SEGURA v U.S. (1984) cb793Facts: Segura, a suspected narcotics violator, entered his apt building and immediately taken into custody and

to his apartment. Agents told Segura and the 4 people in the apartment that Segura was under arrestand that a search warrant was being obtained. Police do a limited security check MARYLAND v BUIE and observe drug paraphernalia. All occupants taken to jail and 2 officers remain to wait for warrant.When warrant executed, officers discovered narcotics and narcotics transactions records. 19hour delay.This was not a SITA.

HELD: The legality of the initial entry did not matter because there was a valid warrant for the additionalevidence seized. No info from the Segura arrest or from initial search of apartment was used to securethe warrant. Therefore the evidence obtained was attenuated from the illegal arrest and should beadmitted. Evidence from initial Plain view thrown out because they were not legally there.Additionally, there was an Independent Source through which evidence could have been discovered.

MURRAY v U.S. (1988) cb794HELD: Evidence observed by police in an initial illegal entry need not be excluded if such evidence is

subsequently discovered by execution of an otherwise valid search warrant sought and issuedon the basis of info wholly unconnected to the prior entry.

Facts: Agents illegally entered a warehouse and observed Marijuana bales in plain view. Agents then, basedon the tip that led them to that warehouse, sought a search warrant and did NOT include any information about their prior illegal entry.

Ration: The independent source doctrine should prevail. plain view doctrine can not apply because policenot legally there. ISD allows into evidence that which is initially discovered as consequence of illegal search so long that it is later legally obtained.2 Barriers to ISD) 1)was the “legal” discovery illegally prompted by the initial entry

2) if info obtained in illegal entry used to obtain legal warrant to enter.

U.S. v CECCOLINI (1978) cb796HELD: ?? bad excerpt A live witness willingly coming forward to testify counteracts prior illegally obtained

information and Live Witnesses need not be excluded.The willingness to testify indicates the Independent Source doctrine would show she would

have come forward by herself eventuallyFacts: ????? Officer visits woman Hennessey at floral shop where officer looks in envelope and finds

betting information.

B. the Inevitable Discovery” Doctrine in 6th amendment cases

NIX v WILLIAMS (WILLIAMS II) Inevitable Discovery doctrine (1984) cb797RULE: Evidence obtained as a result of denial of ∆’s rights may still be admissible if shown that police

would have “inevitably” discovered in same condition legally by methods already under way.Facts: See Williams I. Williams again convicted after excluding his responses and his leading police to body.Issue: Should the girl’s body and surrounding physical evidence be excluded based on W’s interrogation even

though it would have been discovered in essentially the same condition at the later time?Held: NO. A inevitable discovery exception applies to the 6th amendment exclusionary rule through a

preponderance of the evidence.Dissent: Brennan, J. The standard should be clear and convincing evidence. Ration: The sought balance between police overbearing and protecting the suspect is not furthered by

suppressing evidence falling within this genre.Bad Faith doctrine fails because an officer who has opportunity to obtain evidence illegally will not

be in a position to decide if it will be discovered illegally.Inevitable discovery exception does NOT apply to Primary evidence, it applies to secondary and later evidence.

See MURRAY v U.S. where bales of marijuana were not excluded because a warrant was obtained without using information from the illegal entry

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C. Is a confession obtained in violation of Miranda a “poisonous tree?”

Reference NY v QUARLES where O’Connor in concurrence said gun should be admissible but statement not as gun would have been found anyway. Held a public Safety exception.5th Amend mandates “no person shall be compelled in any criminal case to be a witness against….”That Mandate says nothing about compulsion to turn over nontestimonial evidence.

OREGON v ELSTAD (1985) cb803Rule: A voluntary signed confession, made after being fully advised of MIRANDA rights, is not rendered

inadmissible by a prior remark in response to questioning without benefit or Miranda Warnings.FACTS: Elstad was implicated in a burglary. Police went with a warrant to arrest Elstad at Elstad’s home.

Officer Not tell Elstad that Police had a warrant and believed Elstad was involved to which Elstad responded “Yes, I was there.” Elstad at Station after receiving Miranda signed a confession.Elstad’s attorney seeks to suppress confession as tainted from earlier unMirandized remark.

Issue: Is a confession after MIRANDA warnings admissible even where ∆ made prior unMirandized remarkwithout benefit of Miranda warnings?Did the unmirandized confession taint the mirandized subsequent confession.

Held: YES. Miranda’s exclusionary rule serves the 5th amendment and operates differently than a 4th amendment exclusionary rule aimed to deter improper conduct via fruit of the poisonous tree.

*****???4th 2 part test, sufficient break and was 5th amend violated in obtaining.2nd confession knowing, voluntary, intelligent waiver executed.

Ration: Admissibility of subsequent statements should turn on whether they were knowing and voluntary. Police coercion must be deterred. Reading MIRANDA dispels the presumption of compulsion.When an unwarned statement…falls outside of the Miranda presumption…”the primary criterion of

admissibility [remains] the ‘old’ due process voluntariness test.”A suspect that has responded to unwarned and uncoerced are not disabled from a later valid waiver.

Dissent: says Prosecution must show attenuation in order to justify admission of subsequent statement.his subsequent confession was given because he thought he was already implicated…..

§3 Use of Illegally obtained evidence for IMPEACHment purposesExpansion of a once narrow doctrine

WALDER v U.S. where ∆ stated he never possessed or sold narcotics in his life “opened the door” to attack his credibility. HARRIS v NEW YORK (1971) cb812

First “blow” to Miranda where a otherwise inadmissible statements allowed to show perjury/credibility following defective Miranda warnings. Do not allow your client to open the door to Cross-Examination.

OREGON v HASS following HarrisEven if Police deny a person counsel as requested under Miranda, statements received can be used to impeach.

PEOPLE v PEEVY (Cal. 1998) cb814Perhaps Harris-Hass applies even where police deliberately are seeking information to impeach the witness later

U.S. v HAVENS (1980)Illegally seized evidence can be used not only to impeach ∆’s direct testimony, but also for indirect testimony. Indirect testimony here was the suitcase with a missing swatch of cloth used to make a secret pocket.First time 4th amendment impeachment issue addressed … previously, it was definitely only the 5th amendment

JAMES v ILLINOIS (1990)Impeachment exception to the exclusionary rule applies only to the testifying ∆, not to other defense witnesses.FACTS: James dyed and curled his hair to “change his appearance” but these statements to police were

stricken because police lacked PC for his arrest.Witnesses said the perpetrator had reddish slicked back hair and that they had previously seen his

hair in that style.James did not take stand but his friend did and said his hair was black the day of the murder.The State then allowed James’ prior admissions that he changed his hair the day AFTER the murder….

Held: Supreme Court reversed the impeachment by using his prior statements verses statements of a 3d party.

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Truth seeking function would not be served by creating new and complex incentives …. New Jersey v Portash (1979) cb820

Testimony given by a person in response to a grant of immunity could not be used to impeach him at hissubsequent trial because Promise of immunity is “the essence of coerced testimony.”

Mincey v Arizona (1978)Use of an “involuntary” or “coerced” statement even for impeachment purposes would constitute a

“denial of due process of law.” 14th amendment (that shock the conscious)

MICHIGAN v HARVEY (1990) Statements obtained in violation of rule in Michigan v Jackson (waiver for 6th amend rt to counsel must be voluntary,

knowing, and intelligent) CAN be used to impeach ∆’s false or inconsistent testimony.Even if waiver is not valid, statements can be used to impeach.

If 6th amendment right to counsel invoked, waiver must be K,V,and I, and it will be presumed to be invalid if contact initiated by police

Silence for Impeachment Doyle v Ohio (1976) held “every post-arrest silence” is insolubly ambiguous because it would be “fundamentally

unfair” to violate the “implicit” “assurance” that “silence will carry no penalty.” and may not be used against ∆.

3 Exceptions to DoyleGreer v Miller Prosecution asked “Why didn’t you tell that story to anybody when you got arrested?”

Question was stricken. Respondent convicted. Supreme court felt this was harmless error that didnot violate respondent’s due process rights.

Anderson v Charles

Jenkins v Anderson (1980) cb823Pre-arrest silence CAN be used for impeachment purposes when (1) use of silence can impeach ∆’s

credibility and (2) when no governmental action induced the silence (no Miranda given)

Fletcher v Weir (1982)“In the absence of the sort of affirmative assurances embodied in Miranda warnings, a State MAY

cross-examine ∆ about a Post-arrest silence (before Miranda given) when ∆ takes the stand.”An arrest by itself is NOT “governmental action which implicitly induces a ∆ to remain silent.”

A ∆’s POST-Miranda warning silence can not be used as substantive evidence to rebut ∆’s defense of Insanity at time of offense.

§1 “Standing” to object to the admission of Evidence cb770-785 Historically, a person had to be the “victim” to receive standing. This “virtually invited police to violate the rights

of third parties…..” ALDERMAN v U.S. (1969) cb 771

Reaffirmed the principle that suppression of the product of a 4th amendment violation can be successfully urged ONLY by those whose rights were violated in the search itself, not by those somehow aggrieved.

U.S. v PAYNER (1980) cb772 “supervisory power” to overcome standing requirement.Court unwaivered and left standing a firm requirement.

JONES v U.S. (1960) “automatic standing” overturned by Simmons v U.S. Simmons v U.S. a ∆ may assert standing without his assertation being later used against him. Residential premises anyone with a present possessory interest in property searched has standing.

Current approach

RAKAS v ILLINOIS (1978) cb776Rifle shells found in a locked glovebox and a shotgun under the seat.

Actual and Reasonable expectations of privacyof 4th amendment.They lack standing to challenge the search because they claim no ownership of the guns/ammo.The driver though did have a right to privacy. Passengers had no property or possessory interest.

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Standing should depend on whether the police action sought to be challenged is a search (i.e. a violation of legitimateexpectations of privacy) With Respect to the Person Challenging the Intrusion.NOTE: damn my file corrupted and didn’t save the Note or Minnesota v Carter

Search of third persons property does not confer standing on charged persons. i.e. IRS and stolen briefcase and Bahama Bank

katz legitimate expectation of privacy page 8

RAWLINGS v KENTUCKY (1980) cb777RAKAS supplemented to by adding person must be the person charged with offense.Q is whether governmental officials violated any legitimate expectation of privacy held by petitioner.

This was a TERRY stop (the 45 minute detention) and had a reasonable articulable suspicion.Brief investigatory detention> is 45 minutes “brief’?

The police were looking to search the people in the house with a warrant to search the premises.Rawlings is told “take what’s yours’” and takes the drugs. Then he wants to object.Applying KATZ, court held he did not have a reasonable and actual expectation of privacy in her purse.She consented by dumping her purse. (even though she was coerced with a warrant and an order)“totality of the circumstances” acts of free will.. .. .. .. .. .. .. Miranda given , short lapse of time, admissions

were spontaneous to drugs in purse, Rawlings never admitted his actions/comments not voluntary.

MINNESOTA v CARTER: An overnight guest enjoys full protection of the 4th amendment, but short term guestsmerely present with the householder’s consent may not.

facts: Police tip lead police to look into apartment and request a search warrant. Police arrest 2 at car and search the car and house. The 2 arrested at car want exclusion based on 4th amendment violation.Court shot them down because they do not have standing to challenge the peeping/search.

Ration: Commercial property is treated differently for 4th amendment purposes than residential property.Dealers are essentially subletting a room and paid in drugs. It was an illegal commercial transaction.

Ch 9: Lineups, showups, and other pretrial identifications§1 Dangers involved in eyewitness Identifications.

Line up Show up (single suspect to a single witness) In-Court identificationphoto line up photo show up

U.S. v WADE (1967) cb641Rule: Once the accused is formally charged in an indictment, information, preliminary hearing, or

arraignment, the accused is entitled to have counsel present at a lineup where witnesses seek to identify the perpetrator of a crime. (The list is indicative of what “initiates” 6amend rights.)

FACTS: focus on Perception storage retrieval of memories while reviewing these facts

Wade was arrested April 2 after a March 23 indictment a bank robbery. Counsel appointed April 26.September robbery to May line-up. 8 months later.FBI arranged lineup without Wade’s counsel present May 11. A witness saw Wade waiting in the hall by HIMSELF prior to the other line up persons. [subtle influence]

Each lineup participant wore tape on the face like the robber and was ordered to say “put the money in the bag.” Both witnesses ID’s Wade at the lineup, and subsequently ID’d Wade at the trial at which time the prior lineup was exposed.Wade’s counsel made 2 arguments in an effort to strike witnesses ID of Wade

1) that the lineup violated Wade’s 6th amendment right to counsel (at any critical stage in prosecution)2) that 5th privilege against self-incrimination was violated.

Issue: Was Wade’s Post-indictment lineup a critical stage in the prosecution so as to require counsel present.HELD: Yes. A post-indictment pre-trial lineup requires BOTH notice to counsel and counsel’s presence.

court remanded to determine if the error was harmless or from an “independent source”.

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Nothing guarantees a perfect trial.


If harmless or independent source, then conviction would stand. Determine whether the post-indictment is a poisonous fruit (tainted) of the lineup or untainted from

the robbery.

Ration: The confrontation of the accused and witnesses in order to elicit identification evidence is particularly susceptible to innumerable dangers which might deny accused a fair trial: therefore it is a critical stage.

The lineup only becomes a constitutional issue here because the lineup witnesses also testified at trial.

***If the State can show with CLEAR and Convincing evidence that the IN-Court ID’s were NOT theresult of the lineup, then the in-court ID’s should not be excluded. Specifically following WONG SUN

A High degree of Suggestion is inherent in the manner which the accused is presented to the witnesses.The “suggestion can be created intentionally or unintentionally in many subtle ways…..”

It would be difficult for defense to reconstruct the lineup and therefore may permanently settle the identification at the lineup. (prejudice the suspect/∆).Once a witness has ID’d at a lineup, witness is less likely to “go back on his word later….”

Cross-examination is a precious safeguard to a fair trial, but it is not an absolute assurance of accuracy and reliability.

Because of the many variable factors involved in a lineup, the lineup reduces the ability to hold a fairtrial as contrasted to sampling hair and fingerprints which a ∆ can adequately defend later.

(don’t even know how many or who was in the lineup) “vagaries of eye witness identification….”Handwriting (GILBERT) Speak (WADE) gestures, walk, give blood (SCHMERBER) are a sample

of what non-testimonial evidence police can make you give.Counsel is required unless it is validly waived (knowingly, intelligently, voluntarily)

GILBERT v CALIFORNIA (1967)Lineup was conducted in auditorium in which some 100 witnesses to several alleged State and federal robberies

where the 100 made wholesale Identifications of Gilbert in the presence of the others.RULE: A lineup must be conducted where witnesses can not influence each other.

2 extreme views from Model Pre-arraignment Code @ 429-44.1) Counsel is to merely be an observer to protect form police bad faith OR2) Counsel is there to be a full adversary to make objections or proposals.

ineffivtiveness of Counsel at a lineup can get the lineup thrown out.

LINEUPS are not protected by the 5th amendment right against self-incrimination and therefore, refusal to partakein a lineup CAN be used as circumstantial evidence of consciousness of guilt.

2 possibilities when suspect alters his appearance between arrest/crime and lineup:1) instruct jury to view as evidence of consciousness of guilt OR2) reconstruct ∆’s prior appearance.

Model Pre-Arraignment Code permits suspect to request a “blank” lineup or a lineup in which he actually appears.

DUE PROCESS TEST when applied to Pre-Trial Identification by photograph Is to determine Whether the confrontation was “so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable mis-identification.” In court ID’s turn on reliability of no misidentification. SIMMONS. Stoval announced the due process test. cb 654.

§2 The court Retreats: KIRBY, ASH cb655

KIRBY v ILLINOIS (1972)Rule: WADE-GILBERT per se exclusionary rule does not apply to pre-indictment (or otherwise pre-formal

charging) Police Station Show-ups even in the absence of Counsel. 6th amendment right not attached yet anyway!!!!no 5th apply because no interrogation.. the only thing left is the Due Process Analysis under 5 and 14th amendments which do not depend on initiationof adversarial judicial proceedings or interrogation.

FACTS: Kirby and friend were stopped while police investigating a crime separate from Shard’s robbery.

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When police requested Kirby’s Wallet, it produced Shard’s travelers checks and SSCard.AFTER police took Kirby to jail they learned of Shard’s stolen wallet.Police then took Shard to jail to ID Kirby which he did. No lawyer was present. Kirby at trial wasagain ID’d by Shard as his robber.

ISSUE: Does the right to counsel (per Wade-Gilbert) attach to a suspect who has not been formally charged?HELD: NO. Ration: Kirby would need to show a Due Process Violation because he has no right to counsel yet. (not charged)

Due process violation where the line up is unnecessarily suggestive and conducive to irreparablemistaken Identification can be voided. And still can be raised in a federal Habeas corpus relief.

it was unnecessarily suggestive but it was not conducive to irreparable mistake.

MOORE v ILLINOIS p658 Identification at a preliminary hearing by a witness showup is at the initiation of adversary judicial criminal proceedings. Initiation of …proceedings includes: a formal charge (a sworn

complaint, a preliminary hearing, an indictment, an arraignment, and an initial appearance before a magistrate. See Rule in WADE note page 39.

Moore granted relief based on 6th amendment. The preliminary hearing was initiation of..proceedingsMany jurisdictions, the arrest warrant issues only after a complaint is filed. Even if not under 6th, then 14th would probably apply. Very suggestive that could cause irreparable

mistake. PC to arrest must exist at TIME OF arrest. Her confirmation was not enoughto give PC at the Gerstein hearing to bring formal charges.

U.S. v ASH (1973) cb 660RULE: Critical stages of the prosecution at which the 6th amend right to counsel is attached are only those

stages involving the physical presence of the ∆, at a trial like confrontation, with the Government,at which the accused requires the assistance of counsel to assure a fair trial.Photo lineups/show-ups are NOT critical stages of prosecution.Simply because assistance of counsel is helpful doesn’t mean that counsel is required.

FACTS: Ash was indicted. 2+ years later in preparation for trial, Prosecutor showed 5 color pictures to 4 witnesses. ¾ of witnesses identified the ∆. Long following black and white photo of . Neither Ash or his attorney were present.

ISSUE: see RuleRation: Ash differs from Wade because “the lineup offered opportunities for prosecuting authorities to

take advantage of the accused.” (See dissent in ASH)A pre-trial “lineup constitute[d] a trial-like confrontation.” (but not photo lineups)Ash’s ignorance of the law can not be a factor because his ignorance was not played upon. He Wasn’t there.

“Ethical Responsibility” will prevent the prosecutor from using “foul [methods]” to be suggestive….

Dissent: Brennan, Douglas, Marshall: Defense can not reconstruct the 2 dimensional Photographic line-up.This should be a critical stage because the ∆ could go to jail based on ID and Counsel

is necessary to protect the fairness of the trial itself.Photographic evidence can be presented in a very suggestive way detrimental to defendant.

he had been arrested therefore 4th amend probably appliesHe had counsel.

“Right to counsel does not apply unless the lack of counsel at the stage in question might make the right to counsel at trial meaningless.”

§3 Due Process and other limitations cb664

STOVALL v DENNO (1967) (p654) Mrs Behrendt was not expected to live from her stabbing wounds.Stovall was the only man taken to her hospital room handcuffed to a sheriff. Mrs. Behrendt ID’sStoval as her attacker “was the man.” Because of the imperative nature of identification, the Courtheld this type of suggestive ID was OK based on a totality of the circumstances test.

MANSON v BRATHWAITE (1977) cb665Rule: If an identification is Independently reliable, it will not be excluded solely because the method of

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presentation for identification was suggestive.FACTS: Glover, an undercover police officer, purchased heroin in a dimly lit doorway under sunset light.

Glover called in a description to another officer who recovered a photo and placed it and it alone on Glover’s desk. 2 Days later Glover confirmed the picture was the man he bought heroin from.

ISSUE: Was the placing of one picture on Officer’s desk so suggestive as to render the identification unreliableunder a totality of the circumstances test. (

HELD: The photographic show-up was unnecessarily suggestive NOT conducive to irreparable mistaken ID.Independent indicia of reliability will allow an otherwise suggestively presented identification to

be allowable as evidence.Ration: 2 predominant theories: per se anything id’d in suggestive manner is to be excluded OR

Using totality of circumstances test relying on overall reliability of ID.Reliability is the lynchpin in determining admissibility of identification testimony.

FACTORS: Opportunity to view witness at time of crime (how long)from Neil v Biggers The witness’s degree of attention. Police officer not a casual passerby

accuracy of prior description of criminal. right on targetlevel of certainty demonstrated at confrontation. Absoluteand amount of time between crime and confrontation. 2 days

DAVIS v MISSISSIPPI (1969) Notes page 38. 25 black men detained and fingerprinted. The fingerprintingwere excluded as a fruit of the illegal seizure, but the detention MAY be allowable based on evidence falling short of traditional PC needed for an arrest.

HAYES v FLORIDA (1985) Affirmed DAVIS saying a brief detention in the field for the purpose of fingerprintingMAY pass constitutional muster. BUT transporting a suspect to the station without Probable Causeor prior JUDICIAL authorization violated his 4th amendment right. Indicating that the 4th amendmentmay allow the judiciary to seize a person on less than PC and remove suspect to police station forthe purpose of fingerprinting.

Courts split on forcing a person already in custody for a different crime to participate in line-up.Some hold this is totally permissible ------- Others hold there must be a Reasonable Suspicion he

committed the crime.

Elizabeth Loftus & Katherine Ketcham “Witness for the Defense”The greater the level of stress, the less likely the ability to get an accurate description.

Blackwell was suffering from “Sheer, Stark Terror”-Weapon Focus (the gun) all reduce the reliability of the 3 steps-Heightened Emotional State of memory: acquisition, retention, retrieval-Stress Known as Yerkes-Dodson Law.

Lighting – clockOpportunity to view – seconds only when blind slipped offCertainty – absolute – gave a description then ID’d VonLoftus feels photo line-up Not Fair

Heightened emotional states do NOT enhance or help “stamp” in memories: Actually may distort them.Professional Responsibility: the roles of prosecutor and defense counsel

ANDERSON v NORTH CAROLINA (W.D.N.C. 1963) cb 1316Rules: The right to counsel under 6th can only be waived by defendant, not ’s counsel.Facts: At 11:30am and counsel entered a not guilty plea at arraignment after indictment for rape.

’s counsel gave consent for π to talk to in jail cell without ’s counsel present agreed with prosecutor to plea bargain for a lower sentence without his counsel present. pled guilty in presence of counsel to the lesser charge.Judge asks Questions to determine if gave effective Waiver of his 6th amend right to counsel in cell. is claiming on appeal Ineffective Assistance of Counsel.

Ration: a does not have equal bargaining power (due to knowledge of the law) as his counsel wouldwith the prosecution.

was entitled to have his counsel TRY to get a better deal.Because this was a “Critical Stage…”, the plea bargaining was constitutionally defective.

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6th amendment applies to CRITICAL STAGES of PROSECUTION as this was held to be.CRITICAL STAGE = when absence of counsel can eliminate possibility of fair trial…See ASH/Wade.prosecution can only recommend sentencing for any specific charges.

ABA Code of Prof Resp DR 7-104 Note a –

Rights to proceed Pro Se – FARETTA – decision to do so must be freely and understandingly chosen. Often limitedonly to trial level, not appeal.

Where a client claims innocence but wants to plead guilty - counsel should DISCOURAGE and maybe withdraw.A voluntary guilty plea is usually not Appealable.

6th amendment right to counsel is right to MEANINGFUL counsel. McLaughlin v Royster cb 1319.

NEWMAN v U.S. (DC Cir 1967) cb 1324Rule: The US Attorney, as an attorney for the Executive, is not constitutionally obligated to treat every

offense and every offender alike in discharging his prosecutorial duties. The judiciary will not reviewhis discretionary judgments.

Facts: Newman and Anderson were indicted for housebreaking and petty larceny. The US Attorneyallowed Anderson to plead guilty and receive a lesser sentence but declined to extend the sameoffer to Newman. Newman claims the US Attorney denied him due process: “equal standing” and equal protection.

Issue: Must a prosecutor charge a for the same offenses as his accomplice else risk abusing his discretion?Held: NO. A Federal prosecutor under the Executive branch is charged with execution of the laws and with

protection of the interests of the U.S. and as such must have broad discretion.Additionally, he is a Federal Government employee under the employ of the President and must

be disciplined by those superiors if he abuses or misuses his prosecutorial discretion.A host of factors may lead the US Attorney to weigh the best course of action for the State.

Prosecutor has obligation according to W.D.N.Y. to disclose exculpatory evidence but can end up beingHARMLESS ERROR. Not including the death of a witness.

U.S. v AMMIDOWN (DC Cir 1973) cb 1327Rule: A trial judge can not reject (Using Fed Rule Crim Pro Rule 11)a Plea bargain agreement proffered by the

prosecution unless he 1)finds prosecutor abused his discretion and 2)states his reasons for disapprovingFacts: Ammidown Twice conspired to kill his wife. The first time called it off. The second time he planned

to kidnap her and extort money to open a club with Lee. Lee and Ammidown exercised their planand stopped the car, made Ammidown drive to a bridge, Raped Mrs. Ammidown to impress her with“the seriousness of the threat.” and then Lee killed her. Ammidown confessed to all parts of the crimeEXCEPT the murder which he denied complicity.Prosecutor, feeling that the Younger Lee was a bigger threat to the public, offered Ammidown a

reduced charge (second degree murder) in exchange for testimony to convict Lee. Ammidown agreed but when plea presented to the judge, it was denied with no real reason.

Issue: May the judge use his discretion to deny plea bargain agreements because judge feels the shouldbe tried for the more severe crime?

Held: NO. The power under FRCrimP is not absolute and is limited determining fairness to parties & public.

Ethical use of victims in sentencing…. take care using victim testimony…. hurts victims… but can be very useful.

Ch 26 Double Jeopardy§1 Reprosecution after a Mistrial (ends a jury trial before a verdict is rendered)

vwar dear=voir dire means “to see to speak” process through which jurors are selected...You can eliminate “for cause” unlimited number of times…. “peremptory” challenge is without cause and limited number.

DOUBLE JEOPARDY = a prohibition against a second prosecution for the same offense after an acquittal or convictionfor that offense in a prior proceeding or against multiple punishments for the same offense.

ILLINOIS v SOMMERVILLE 1973 cb 1477

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Rule: If a trial judge grants a mistrial, over objections of the , because there is a manifest necessity to grant a mistrial or in order to Meet the Ends of Public Justice, a second trial for the same offense does notequate to Double Jeopardy.

Facts: Sommerville was indicted by a grand jury for theft. After a trial jury was assembled but before anyevidence was presented, the prosecution realized the indictment was fatally flawed failing to indicate intent and Illinois law prohibited amending the indictment and Sommerville could not waive this jurisdictional issue. opposed the Prosecution’s motion for a mistrial.

The trail judge declared mistrial because he felt it fruitless to continue. A conviction would have been overruled on appeal and would have to be retried.

Second indictment led to Sommerville’s conviction and his appeal on Double Jeopardy basis.Issue: See rule:Ration: Sup Ct. used “manifest necessity”/”ends of public justice” to hold Double Jeopardy not bar re-trial.

TEST: was mistrial granted for “manifest necessity” or in the “ends of public justice”?

In looking at the total circumstances, the court made the right decision. Instant case, would have been reversed on appeal and retried again. Saves $ and time. Additionally, the public has an interest in either conviction or acquittal and sometimes the ’s right

to have his trial completed by a particular convened tribunal, sometimes the public interestoutweighs his right.

This rational implementation of a state policy was in no way shown to be able to be manipulated so asto prejudice the

Dissent Marshall, J. felt trial court did have other alternatives other than mistrial. Felt a trial continuancewas a viable option.

GENERAL RULE: Jeopardy attaches in federal Jury Trials: when Jury is “empaneled and sworn.” and (constitutionally mandated???!) Bench Trials: when “first witness is sworn”.

CHRIST v BRETZ (1978) cb 1484Rule: The federal rule attaching jeopardy is a constitutional rule applicable to States as well is when

the jury is empaneled and sworn.That State’s law held jeopardy attached when first witness is sworn. The Fed Constitution is the

bare minimum holding jeopardy attaches at Empanelment and swearing in of jury.Ration: 1) 5th amendment applicable AFTER trial completed BUT 2) old English rule applied now is that

a jury should not be discharged until they reach a verdict for which they were gathered.

Distinguising DOWNUM and SOMMERVILLE – Witness may not guarantee a prosecutorial loss while a defective indictment is a guarantee of a loss. DOWNUM not a “manifest Necessity.”

ARIZONA v WASHINGTON (1978) cb1487 again applying PEREZ standard.In a mistrial granted to a re-prosecution, the judge failed to note any “Manifest Necessity” nor state that

it had considered “alternatives”. It was not apparent from the record….Defense attorney “caused” the mistrial be stating prosecution caused the first mistrial by withholding evidence.

PEREZ “manifest necessity”/”ends of public justice” Gori v U.S. Sup Court ordered a retrial (for a mistrial ordered at judge’s own motion) because Judge over reacted

too early in the sole interest of a defendant.

OREGON v KENNEDY (1982) cb 1491Rule: Double Jeopardy banning a re-trial where moved for the mistrial will only bar the retrial when

the prosecution’s objectionable conduct was done with the INTENT to Provoke/goad a mistrial motionFacts: Kennedy was on trial for theft of an apparently very expensive rug.

Kennedy’s attorney attempted to discredit the prosecution’s witness by showing prejudice to .Prosecutor tried to reform witness and in doing so referred to as a “…crook.”DEFENDANT moved for a mistrial based on such statements.Court of appeals held that double jeopardy clause DID protect because prosecutor “overreaching”

Ration: Sup Court held the unintentional prosecutor’s comment did not work to bar reprosecution.

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The prosecutor is supposed to be prejudiced against the . Therefore, the “goading” rule mustbe in place to prevent s from willy nilly requesting mistrials.

Overreaching not enough; must look to whether the prosecutor was intending to ask for a mistrial.

LEE v U.S. (1977) cb1499Rule: A should act timely in making motions else risk being open to re-trial.

the dismissal was the functional equivalent of a mistrial based on insufficiency of the information.Only way will win on re-trial is based on insufficiency of the EVIDENCE, Insufficiency of

the evidence is all that will bar re-prosecution on double jeopardy.Facts: who was charged by information AT the bench trial raised a motion to dismiss based on

insufficiency of the information. The Judge tentatively denied the motion. The judge returned and found guilty beyond a reasonable doubt, but dismissed the charges based on ’s prior motion.Sup court held this situation was NOT barred by double jeopardy clause

§2 Reposecution following an acquittal

Reprosecution for the same offense following: prohibited by double jeopardy for 1. acquittal(jury or judge) 2. conviction3. multiple punishments for the same offense4. mistrial (depending on timing and reasoning for it)5. dismissal (depending on timing and reasoning for it)6. collateral estoppel(ie with different (lower) standards of proof not precluded)

U.S. v SCOTT 1978 cb 1500Scott moved to dismiss two counts of the indictment which concerned transactions … had been prejudiced by

preindictment delay (a 14th amend claim). A jury had already been empaneled and sworn. granted Because the dismissal is the functional equivalent of a mistrial on those charges and because no manifest

necessity is shown, the Absence of a Factual Finding of guilt or innocence does not preclude subsequent trial.

There is a distinct difference between a dismissal and a judgment of acquittal.18 USC §3731 does not bar re-prosecution where the himself moves to have the trial terminated WithOut

a factual determination of guilt or innocence.18 USC 3731 - allows prosecution to re-try after an appeal reversal unless double jeopardy attachesThe Government is entitled to one FULL opportunity to get conviction

acquittal is a resolution (by judge or jury) in the ’s favor of some or all of the charges.Reason acquittal is not retriable is the Gov’t has vast resources to find a guilty ie wear them down.

Mistrials are permitted when manifest necessity or ends of public justice needed ….BUT when prosecution goads into requesting a mistrial, Double Jeopardy would apply.

SANABRIA v U.S. (1978) CB 1507Sanabria was charged with illegal gambling activities also in violation of State law as Required under

Federal Law 18 USC §1955.The Government tied Sanabria to numbers operation but not to horsebetting and Sanabria moved for a judgment

of acquittal because that Mass State law did not prohibit Numbers, just horsebetting under Section 17.Court granted acquittal based on 2) the indictment did not include Section 7 which made Numbers illegal

and (1)then the court excluded all evidence relating to numbers. essentially a defective indictment.Government appeals under 18 USC §3731 contending 1) §7 / §17 error was harmless error and 2) that the

numbers operation was still relevant since it evidenced another unlawful operation under §17. and numbers stuff dismissed before acquittal.

Government LOST appealThe acquittal covered both theories of liability AND retrial for the single acquitted offense, which was

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acquitted as horse betting, is barred because of the FINALITY of the judgment.Acquittal is FINAL even if harmless error is committed.The §1955 is a single offense statute and a single offense was acquitted.However, at this point, the Fed gov’t can turn its evidence over to the State on Dual Sovereign Doctrine.

US v MOORE DCCIR1979 cb 1509 Distinction between defense such as insanity or entrapment, as to which a mid trial favorable rulingwould constitute an acquittal, and BETWEEN an objection such as preindictment delay is the objection for “recantation” or delay does

not excuse a because it does not make him any less guilty or justify his otherwise illegal conduct.

You can not give waiver to a defective indictment that results in an acquittal. Acquittal is Final. Waiver irrelevant.

US v SANFORD (1976) ’s first trial ended with a deadlocked jury and mistrial. Prior the the retrial, the judge dismissed indictement on grounds tat government “consented” to ’s “illegal” activities. Supreme Court reversed the finding of attachment of doublejeopardy. Holding that mistrial was allowed under PEREZ standard….

US. v WILSON (1975) Judge issued an acquittal JNOV in reconsidering an earlier motion for preindictment delay.However, the Supreme Court sustained Government’s appeal because it found it would NOT subject to

multiple trials. (simply reversing the judges decision and re-instating the jury’s finding)

Where there is NO THREAT of MULTIPLE PUNISHMENT or SUCCESSIVE PROSECUTIONS, theDouble Jeopardy Clause is NOT Offended.

§3 Reprosecution following a Conviction

???**BALL RULE: the successful appeal of a conviction does not bar reprosecution on the same charge

???**BURKS EXCEPTION to BURKS: insufficiency of the evidence does not bar reprosecution.

Retrial permissible following reversal of conviction on direct appeal some error in proceedings leading to conviction(Ball v U.S.)Retrial permissible when conviction declared invalid on collateral attack (U.S. v Tateo)Retrial NOT permissible when conviction reversed by an appellate court on the sole ground that the evidence

was insufficient to sustain a jury’s verdict. (Burks)Retrial permissible on a thirteenth-juror reversal (Tibbs v Florida) Reversed on weight of evidence not sufficiency of evidence.

LOCHHART v NELSON (1988) cb 1512Rule: The Double Jeopardy Clause does not preclude retrial even if some of the evidence, even if

later held inadmissible (thus allowing harmless error), would have been sufficient to sustain a guilty verdict.FACTS: pleaded guilty. Under State Habitual criminal statute, a felon previously convicted of or found guilty

of 4 or more felonies could have the sentence enhanced. 1 of the 4 felonies offered as proof at the sentencing hearing turned out to be a pardon not a commutation of sentence. , counsel, and prosecutor all eventually thought at the sentencing hearing the sentence in question was in fact only commutation of sentence.Years later, Nelson sought habeas relief again claiming the enhanced sentence was invalid because

of the pardoning of one of the 4 prior convictions used to enhance the conviction.The State again sought enhanced sentencing offering another felony not used at the sentencing hearing.Nelson claims double jeopardy.

Issue: Did the inadvertent inclusion of a pardoned conviction bar re-sentencing again….Ration: short version: If the questioned felony had been excluded due to pardon, the prosecution would

have offered the other felony and gotten the enhanced sentence anyway.

Justices of Boston Municipal Court v LYDON (1984) cb 1518Lydon opted for a bench trial before the court (which had an absolute right to a trial de novo) over a jury trial.Lydon convicted and requested a trial de novo. Before the new trial commenced, he moved to dismiss

the first-tier conviction on the ground it was not supported by enough evidence….Lydon requested appellate review of his bench trial. Court held NO; the1st level of review is a trial de novo.Supreme Court held Lydon not entitled to this relief because there was no second trial in violation of

double jeopardy.Ration: The prosecution would put its best case forward first because Acquittal is Final.

Richardson v U.S. a hung mistrial is re-triable. It is not a new Jeopardy, it is only a continuing Jeopardy.

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GREEN v U.S. (1957) cb 1520Implied acquittals to more severe charges (such as a jury finding a guilty of lesser charges) are barred by

double jeopardy when an appeal court reverses a lower conviction.Green was tried for Murder with jury options of 1st degree and 2nd degree murder. Jury found Green guilty

of 2nd degree murder but was “silent” to the 1st degree murder.Green appealed the 2nd degree murder and the conviction was reversed/remanded. Green was then

convicted of 1st degree murder.Supreme court held the jury had the full opportunity to return a 1st degree conviction the first time but did not.

§4: Reprosecution by a different sovereign DUAL SOVEREIGNTY

Most states have a practice of Not reprosecuting after a federal prosecution.

HEATH v ALABAMA (1985) cb 1522Rule: Two sovereign states can each seek their own separate prosecutions for the same conduct without

violating the Double Jeopardy clause.Facts: Alabama – conspiracy to murder and kidnapping

Georgia – Evidence (body) and probably the murder, Maybe aiding abetting in disposing of the bodyGeorgia goes first and allows Heath to plea and not get death penalty.Alabama goes next and wants death penalty.

Ration: His plea of guilty in Georgia does not affect his ability to be prosecuted in Alabama because a Diff Sovereign.

BARTKUS v ILLINOIS (1959) cb 1526

ABBATE v U.S. (1959) cb 1527The Federal Gov’t and State Gov’ts are separate sovereigns and may try and convict based on identical offences

An exception from Bartkus could be where the State was shamming and essentially the Fed Gov’t was prosecuting both “state” and federal charges.

D.O.J. Guidelines after ABBATE for the exercise of federal prosecutorial authority successive to State prosecution.Note 3 pg1528 Prohibits subsequent federal prosecution UNLESS 3 conditions satisfied.

WALLER v FLORIDA Supreme Court refused to extend dual sovereignty doctrine to successive municipal and state prosecutions as municipalities are extensions of the State.

Ch 20 §3 The right to “EFFECTIVE” ASSISTANCE of Counsel cb1149

Powell v Alabama right to counsel and denial of due process under 14th amendment protection of life,liberty property. Court indicated there that the right to counsel is not discharged by an assignment that did not give “effective

aid” in prep and trial of case.EVITTS v LUCEY extended the effective assistance of counsel requirement to on a first appeal “of right”

We have an adversary system and the provision of Counsel gives reliability and legitimacy to the system.At what of the 9 stages is a lawyer required under 6th amendment Trial and first appeal of right

1 at trial, Direct appeals are granted NOT as A Fed Constitutional, But if a Direct appeal is of right, then a lawyer must be provided

ie a right of legislative grace or State constitutional provision.After you get out of State Court to Fed Habeus with Death penalty then Fed Statute provides for counsel.

Courts have been reluctant to find IAC because it would open the doors and make judges micro manage atty behavior.

6th amendment right attaches at trial and appeals of right. Therefore after that, the 14th amendment denial

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of due process analysis would have to be applied in analyzing Ineffective Assistance of Counsel.

STRICTLAND v WASHINGTON (1984) cb 1153Several mini holding citations also within this case.Capital cases are bifurcated. BUT there is no constitutional right to sentencing by jury, just a Trial by jury.

A must, in order to show that he was denied the effective assistance of counsel that(1) counsel’s performance was deficient (such as to effect fairness of trial)-Below objective standard of reasonableness considering all the circumstances

-- In assessing reasonableness, hindsight should be minimized and Circumstances should be evaluated as the attorney saw them at the time AND the court should grant those decisions with great deference.

(2) that that deficient performance prejudiced the defense.-Prejudice is NOT outcome based.-Conceivably different outcome is insufficient and More likely than not different is too severe---Test is must show a Reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different by introducing the mitigating factors (ask the witnesses what they would have been willing

to testify to and that they weren’t called. Get the records, IQ scores, Fam History…)The purpose in requiring Effective assistance of counsel is to Ensure a Fair Trial. Therefore, fair trial is the

benchmark in an adversarial process whether IAC ….An attorney’s strategy and tactics are beyond review (Note 3 cb 1165) therefore fails inadequate performance.FACTS: Strictland waived right to jury trial. Waives 6th amendment confrontation of witnesses. Pleads guilty.

Look to see if a valid waiver: was it knowing, intelligent, voluntary by looking at the transcripts? Strictland claimed he was denied effective counsel at his sentencing hearing when his attorney failed

to present character evidence or psychiatric evidence which may have reduced his sentenceCounsel knew judge favored repentance which Strictland did repent. Guilty plea was mitigating factor

Character, Seriousness of offense, and reasoning (including family) are all typical mitigating factors.

Must show activity or inactivity caused the problem. Maybe introducing Reasonable doubt to guilt can showIAC.

U.S. v Cronic (1984) cb1166 must be able to demonstrate ineffective assistance of counsel from counsel’s actualperformance in light of the particular circumstances of the case, NOT be able to demonstrate ineffectivenessof counsel on remand. IAC can not be inferred from the circumstances. Must identify specific Acts of Counsel or inactions of counsel.

Kimmelman v Morrison (1986) The full and fair litigation of STONE v POWELL p32 does not apply to 6th amendment IAC cases based primarily on representation with respect to a search and seizure issue (4th amend).Evidence obtained in violation of 4th amendment not objected to and may have caused conviction.

Lockhart v Fretwell (1993) the determination of “prejudice” focuses on whether a counsel’s deficient performancerenders the result of the trial unreliable OR the proceedings fundamentally unfair.

Defendant’s prevented false testimony and compromising the ’s right to effective assistance of Counsel

NIX v WHITESIDE (1986) cb1171RULE: An attorney does not violate Right to Effective Counsel if he refuses to let his lie on the stand.

Facts: Whiteside offered to perjure himself by saying he saw “something metallic” in order to further hisclaim of self defense. Whiteside’s counsel told No and that he would withdraw as counseland would tell the court of the lie. Whiteside told the truth and was convicted.

Real issue: Does a have a right to perjure himself…..ISSUE: Does attorney’s refusal to allow perjure himself constitute violation of right to effective counsel?

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Ration: This case is Not as the Ct of Appeals characterized “…[a forced choice] between the right to counseland the right to testify….” – it was right to counsel versus the right to commit perjury.

Perjury and jury tampering are on the same criminal level.Attorney does have attorney-client privileges to uphold concerning client’s admissions, but an attorney has no duty to HIDE criminal conduct; in fact Attorney must disclose Crim Conduct.Neither Prejudice or THUS Ineffective assistance of counsel demonstrated by this case.Attorney would have been acting as “reasonably expected” of his profession if he disclosed perjury….His performance was not deficient within the range.Whiteside failed to establish PREJUDICE requirement as an atty refusing to perpetuate fraud/perjury.

Concur: Stevens cautioned to take care because clients with time may actually remember more

How do you make the determination that the client is lying??§4 Multiple presentation and conflicts of interest

Courts may PRESUME IAC with an Actual Conflict of interest or with no counsel at all to pressure a conflictCUYLER v SULLIVAN (1980) cb1180

RULE: In order to establish a Sixth Amendment IAC violation for counsel’s conflict of interest, a who raised noobjection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.

Facts: Sullivan and 2 others were represented by the Same 2 lawyers. Sullivan was tried separately from theother 2 s. The other 2 s were acquitted but Sullivan was convicted after lawyers rested their case following prosecution’s resting of the State’s case, which consisted solely of circumstantial evidence, presenting no evidence to refute the State’s evidence. At no time did Sullivan object to the Same attorneys representing him as the other two s.

Co-Counsel Peruto admitted that his concern for co-s case affected his judgment as to whether or not Sullivan should present a defense.

Issue: Can a obtain federal writ of habeas corpus simply by showing that his retained counsel representedpotentially conflicting interests.

HELD: NO. must demonstrate ACTUAL conflict of interest to obtain IAC Habeas relief and must have retained standing by objecting to the same counsel at trial.

Ration: The Supreme Court agreed with 3d Circuit that the circumstances established the existence of multiple representation.

There is NO duty for a State court to inquire into the propriety of multiple representation.

Burger v Kemp (1987) cb1184CUYLER interpreted to require some showing Both that a conflict existed and that it explained a particular

action or inaction of counsel adverse to s cause. ABA guidelines state a lawyer should ordinarily decline to represent multiple s unless clear no conflict can arise.

Yale Law Journal (103 Yale L.J. 1835) Counsel for the Poor: The death sentence not for the worst crime but for the worst lawyer: Bright, Stephen B.In sentencing, a jury has a constitutional obligation to impose a sentence based on a “reasoned moral response

to the defendant’s background, character, and crime….”***prevelance of IAC in Capital cases *** Too few resources including defunding of capital defense funds ***

and Inexperienced lawyers are all issues raised in Yale law article.

WILLIAMS v TAYLORAEDPA (1996) imposed SOL on those seeking fed habeas relief for capital cases shortened to 6 months if

state can show no IAC or otherwise 12 months. (no state has qualified for shortened 6 month)FACTS: Williams convicted of robbery and capital murder and sentenced to death.

Fed Judge identified 5 mitigating factors not introduced11 yrs old committed Borderline Mentally retardedChildhood neglect (DHS, Hospital, police records are possible sources)Repeated Head injuries Possible mental impairments organic in origin.

STATE judge upheld IAC.VA Sup. Ct. denied a retrial by finding “fundamental fairness” not violated.

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Held: There is no third prong to IAC. Only PERFORMANCE and PREJUDICE, not Ffairness.This was the first and only case to this point Supreme Court has looked to hold that failure to introduce

mitigating factors could lead to IAC.

Background cb 1-59_______________________________________________________________________________1

Chap 3 RIGHT to COUNSEL________________________________________________________________________3

§1 the right to appointed counsel and related problems________________________________________________3-The right to counsel is a right that is "fundamental and essential to a fair trial" by using the 14th amendment-If no jail time is sought, then no right to counsel can attach by Argersinger v Hamlin

-6th amendment: offense specific at any critical stage of the prosecution.-5th amendment: Miranda type, not offense specific, Right against self-incrimination trough provision of testimonial evidence-4th Amendment: Search and Seizure no right to counsel-14th amendment: failure to appoint counsel is a violation of Due Process, IF, under the circumstances of the case it results in

a conviction that is lacking in fundamental fairness.

§2 GRIFFIN – DOUGLAS “Equality” principle______________________________________________________5Griffin: no majority - indigent must be provided a transcript free of charge in capital crimesDouglas: Indigent IS entitled to appointed counsel for appeals granted as a matter of right, not constitutional, is a Due Process issueRoss: No right to appointed counsel for discretionary appellate proceedingsFederal Habeas esp on Death row a definite right to appointed counselAKE v OK: State must provide "psychiatric examination….When justified by preliminary showing… at both Capital & Non.

Concur and Dissent both feel should right to expert testimony should be expressly limited to capital cases. Courts struggle to define the "BASIC TOOLS" necessary to supply an indigent a fair and just trial.

Ch 5 Arrest, Search, and Seizure______________________________________________________________________6

§1 The Exclusionary Rule_________________________________________________________________________6GOAL from Weeks: enabling Judiciary to avoid the taint of partnerships in official lawlessness AND of assuring the people that the Gov't

would not profit from its lawless behavior…Extended to States in Mapp v Ohio to promote "judicial integrity" because otherwise protection just valueless "form of words…"

EXCEPTION: from Leon Good Faith = 4th amendment does NOT require exclusion of evidence seized pursuant to a facially valid warrantwhere the police have acted in good faith. even on warrantless arrests from LOPEZ

i.e. the Magistrate's blunder, not the police. Can not deter police if they not mess up. when judge/congress failed to find real P.C

Exceptions to exceptions: Can be used in impeachment of direct testimony and on cross but not of a witness. Safety and Plain View….And can be used to examine Grand Jury witnesses and see Civil prosecution exception.

Is there any further injury to the expectation /right to privacy by acts done by police w/PC (Jacobson)

§2 Protected areas and interests___________________________________________________________________8KATZ: 1) is there a State Actor, 2)is there a search or a seizure.

4th amendment protects justifiable expectations of privacy of People. (expectation must be Both Actual and Reasonable)

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Greenwood: There is no reasonable ie for VIN #'sexpectation of privacy in trash placed for collection versus IRS documents reassembled after being shredded actually constituting a reasonable expectation of privacyOPEN Fields doctrine: No protection if open field but YES protection if curtlageRiley: a police helicopter legally flying as any other pilot could does not invoke 4th amendment protectionsCanine sniffs and beepers are not searches, they merely reveal info otherwise obtainable and do not open the items….Thermal imaging (KYLLO) IS a search perhaps Gas Chromatography is since it only AMPLIFIES what officer could normally do.

A 4th amendment analysis would focus on expectation of right to privacy where a 5th amendment analysis focuses on producing testimonial evidence to self incriminate. (Andresen) seeking info on fraudulent land saleZurcher: 4th amendment does NOT find it improper to issue a 3d party search warrant where PC exists to Fruits, Instrumentalities,EvidenceJohnson: contrasted to Andresen where a search of an office for Business records not specifically illegal was unconstitutional

§3 “Probable Cause”____________________________________________________________________________11"Probable cause exists when the facts and circumstances within an officer's knowledge and of which she has reasonably trustworthy info

are sufficient in themselves to warrant a person of reasonable caution in the belief that:(1) in the case of ARREST, an offense has been committed and the person to be arrested committed it; and(2) in the case of a SEARCH, seizable evidence will be [likely] found in the place to be searched."

Spinelli Veracity (how do you know the guy is telling the truth) and Basis of Knowledge (how did the guy get his information)Veracity = Credibility Basis of Knowledge = "underlying circumstances"

Gates: Essentially replaced Spinelli, but Spinelli still used as lower court standard: Gates erodes 4th amendment rights. Allows Balancing. Added [reasonable] Totality of the Circumstances to determine the Reliability of an informant and his BoK in determining if P.C. exists.An informant is NOT a witness, therefore there is no 6th amendment right to confrontation or disclose informant's Identity.

§4 Search Warrants____________________________________________________________________________13A. Issuance of the Warrant_____________________________________________________________________________________________13

Issued by a "neutral and detached magistrate" --CoolidgeWarrant must have Particular description of PLACE to be searchedWarrant must have particular DESCRIPTION of things to be seized in Good Faith and sometimes the PURPOSE of the warrant (expansive

B. Execution of the Warrant____________________________________________________________________________________________13~10 day expiration served in daylight hours (10 day maintains validity to actual PC)

Nighttime search for Controlled Substances requires no special showing other than likely to be there at that time -- Gooding"knock and Announce" to gain entry UNLESS police have a reasonable suspicion that knocking would be dangerous or futile (Richards)Must have PC for the Place and Person and Things and can not be extended to third persons (Ybarra)In executing warrant, can detain persons on premises because "some seizures…constitute such limited intrusions…at to be justified by

such substantial law enforcement interests…." (detained Summers outside his house while it was searched then arrested him)PLAIN VIEW(Coolidge/Horton)a)Officers legitimately on premises b)Officers see items in Plain viewc)& believe fruits, evidence…contraband

§5 Warrantless Arrests and Searches of the person__________________________________________________14Exceptions to Search Warrant requirement: 1)SITA 2)Exigent Circumstances 3)Auto 4)Consent 5)Terry 6)regulatory/inspectionMust tie a search to Plain view, Automobile, SITA, consent, Terry Stop. Still may need PC though.

Watson: Can make warrantless Arrests if have P.C. ("reasonable grounds") for doing so. Pugh: A magistrate must determine after the fact if PC to make that warrantless arrest w/in 48 hours (McLaughlin)Robinson: a full Search Incident to Arrest is lawful and need not be limited to frisk searching for weapons.SITA: Search Wingspan. Passenger compartment of car can be searched SITA No Trunk. DELAYED (Edwards) and Advance (Murphy) OK.

2historic rationalles: Officer safety and Preservation of evidence (knowles)Whren: only matters if officer can articulate lawful intentions (even if they are not his real intentions)Inventory Search PC is not necessary because it protects detainee, cellblock, and officers. "governmental interests versus…."Schmerber Balancing Test (blood sampling case) . The facts that establish PC can only be ascertained by a search…. Officer is confronted

with an Emergency where delay to get a warrant would "threaten the destruction of evidence."Must be a Case by Case basis and needs to be the Destruction of the primary evidence…. (Winston v Lee)

§6 Warrantless searches of premises, vehicles, and containers_________________________________________16Chimel (Scope of SITA) Warrantless search of premises may only extend to area "within [arrestee's] immediate control" (Wingspan)

even where police executing an Arrest warrant. A. Search of premises incident to and after arrest therein

Buie "Protective Sweep" pursuant to SITA (SITA happens only after arrest) secured w/ PCOfficers can do Cursory inspection w/o PC to look in areas large enough from which an attack could be spawned precautionary -Otherwise can --if officers have reasonable belief that another person who may be dangerous to the officer based on specific and articulable facts

Payton: arrest warrant implies the ability to Search where the arrestee could be hiding.

B. Warrantless Seizures while on premises to ArrestPlain View doctrine is OK but must have PC to do more than that (Hicks moving of stereo equipment)Vale: Dissent felt evidence may be inside house and could be destroyed. Note the arrest warrant for increased bond, not drugs.Segura: officers can preserve status Quo via reasonable methods while search warrant obtained.

Payton: absent Exigent circumstances, an officer can not forcibly enter home to arrest w/o arrest warrant even if did have P.C. and evidenceobtained from warrantless nonconsensual entry into home even if in plain view is not admissible.

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Exigent Circumstances: (1) Hot Pursuit (2) Threat to public safety (3) preservation of destructible evidenceCan not search house of 3d person w/o search warrant unless exigent circumstances exist (Steagald) Would need search warrant to serve arrest warrant

Carney: "Ready mobility" allows mobile homes to be included in automobile exception to warrant, but still need P.C. Automobile: Still need P.C. even to search the trunk and must find some exigent circumstances preventing obtaining a warrant (Dyson).

Scope limitations____________________________________________________________________________19Acevedo: Warrantless search of Auto or any Closed Containers reasonable under 4th amendment so long as PC to each item searched.Routine non-discretionary traffic roadblocks not excluded if done for public safety not to get drugs…. (Johns)If there is no longer a "legitimate expectation of privacy" (ie plain view or previously legally discovered) then no 4th amend violation SKatzBertine: police can do inventory inspection of closed containers w/o warrant or PC so long as reasonably done under state statutes.

but can not listen to tapes detailed in inventory inspection….

§ 7 Stop and Frisk____________________________________________________________________________20 TERRY Stop limited to facts circumstances creating a reasonable, articulable suspicion of criminal activity afoot, and if Stop does not

dispel suspicion or fear of dangerousness, then FRISK must be limited to PAT down of OUTER clothing for Weapons.Clarified by Cortez indicating probabilities not CertaintiesReasonable suspicion can not come from anonymous tip alone (J.L.): "must have moderate indicia of reliability present in White."Sibron where officer reached into suspects pocket saying you know what I'm after…. Insufficient to justify police intrusion.

B. Police action short of a seizure________________________________________________________________________________________20Bostick: after his papers returned to him, it was implied that he was free to disregard the officers. No seizure can occur in examining the

luggage except when police indicate it is not voluntary to allow them to do so.Hodari; a suspect can not be seized when suspect not yield. Arrest Requires (1) physical force and (2) submission to assertion of authority

C. Grounds for temporary seizure for investigation__________________________________________________________________________20White: police was able to corroborate substantial portion of tip and tip therefore had indicia of reliability.Sokolow listed 6 factors to give police a reasonable suspicion that Defendant was a drug courierHensley Specific and Articulable facts supporting the reasonable suspicion that police stop to check id, ask questions in reliance on a flyer.

therefore, can use a stop to investigate PAST criminal activity. Hensley was not a Terry Stop.Wardlow. officer Terry Stopped a man who wan away from the police caravan in a high crime neighborhood.

Refusal to cooperate is not enough to raise suspicion, but "unprovoked flight is more than refusal to cooperate.

D. Permissible Extent of temporary seizure cb325_________________________________________________________________________21Case by case basis. 25 minutes may be too long where 60 minutes may not.Royer: Royer could not Consent to luggage search because he was not free to leave (involuntary consent) Enough for Terry stop not search.Robinette: CONSENT can be obtained after return of credentials and be found to be VOLUNTARY.

E. Temporary Seizure of Effects_________________________________________________________________________________________22Place: CANINE search is not a search. Not unreasonable to take luggage to another location delaying Place for 90 minutes.TERRY requires the brevity of the invasion to be minimally intrusive and justified by a reasonable suspicion.

G. Other brief detention for investigation_________________________________________________________________________________22Davis: Fingerprinting of 25 men was a violation of the 4th amendment protections against unreasonable seizures.

BUT fingerprinting may be allowed on evidence otherwise insufficient for an anrrest.Dunaway: Suspects must be picked up on PC or else, even if Mirandized, any confession obtained will not satisfy 4ths reasonable conduct

under the circumstances

§8 Administrative Inspections & Regulatory searches: More on Balancing the need against the Invasion of Privacy___________23Camara: Fire, health, housing code, Safety inspections need Warrants but not PC. Can not pick and choose inspections. Must be overall….Border Searches: Ramsey. Reasonable customs inspections of mail entering US ok, but can not open and read w/o warrant and PC.NonRoutine Border Searches: require a Real suspicion or higher.

Fixed vehicle checkpoints generally upheld: Vehicle checkpoints searching for illegal aliens must be based on Reas Art. susp. based on factOfficer discretion must be eliminated. Must check all vehicles at First checkpoint. Racial profiling at 2nd point may be OKPrimary goal must be SAFETY: Sitz upholding of sobriety checkpoints. Minimally intrusive, no discretion, address S Problem, No Rea/Alt

TLO must have Reasonable Grounds (not PC) to do warrantless search for students under school's authorityRandom Drug Testing of student athletes OK because of a lower expectation of privacy. (Vernonia)

§9 Consent Searches____________________________________________________________________________24Bustamonte: There is no need to inform searchee of their right to rufese consent.

Consent must be Voluntary: UNEQUIVOCAL, SPECIFIC< INTELLIGENTly given, uncontaminated by coercion…..IF coerced, then could invoke fruit of poisonous tree.

Rodriguez: Must get Consent FROM a person who has actual or apparent authority to grant consent - a reasonable police mistake will notdisallow the grant of consent.

Voluntary and (knowingly and intelligently) WAIVER: Voluntarily = product of a free and deliberate choice rather than coercion, intimidation, or deception

Knowingly and intelligently = full awareness of (1) the nature of the right being abandoned and(2) the consequences of the decision to abandon it (Burbine pg 32)

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Ch 8 Police Interrogation and Confessions____________________________________________________________245th, "not shall be compelled in any Criminal case to be a witness against himself…"6th amendment offense specific right to counsel at critical stages Right to Counsel does not apply unless the lack of counsel at the stage

in question might make the right to counsel at trial meaningless."14th Due process focuses on Voluntariness - can not deprive of life, liberty, or property (voluntariness based on facts of circumstances.

§1 Some different Perspectives (background type articles) skimmed____________________________________24

§2 Historical Background________________________________________________________________________25

A. The interests protected by the Due Process “voluntariness” Test for admitting confessions cb 451_________________________________25 B. The shortcomings of the "voluntariness" testC. The McNabb – Mallory Rule: Supervisory Authority over Federal Criminal Justice vs. 14th Amend Due Process_____________________25

D. The right to counsel and the analogy to the accusatorial, adversary trial________________________________________________________25Intelligence and educational level can create an implied waiver of rights (Crooker who was a law student) Pre-Miranda

E. MASSIAH and ESCOBEDO: The Court closes in on the “confession problem”_________________________________________________25Massiah's friend Colson wore a bug in car. Evidence inadmissible as Colson was an Agent of police and 6th amend had already attached.Escobedo: was an arranged confrontation not interrogatin -- focus test rejected as a workable test - new test is when asks for counsel….

§3 The MIRANDA “Revolution”__________________________________________________________________26Purpose: to prevent government officials from using coercive nature of confinement to extract confessions that would not be given in

an unrestrained environment. Suspect can not Pre-emptorily invoke right to remain silent before custody and interrogation.Must provide info of 4 rights when CUSTODY + INTERROGATION

1)Silent 2)anything said as evidence 3)Right to counsel 4)Counsel appointedCustody = Not free to go……Courts give tight reading Bostick pg20 and Robinette p22

Must be in such a place/way that it is inherently coercive. i.e. Immediate control over detainee.Interrogation = anything reasonably likely to elicit incriminating evidence. "express Questioning or its functional equivalent"

Chapter 223, Title 18 USC §3501 (Title II of the Omnibus Crime Control and Safe Streets Act of 1968) cb498_____________26

The Implications of the TUCKER – QUARLES – ELSTAD way of thinking about Miranda_________________________________________27EXCEPTIONS Good Faith where deterrence would not apply, Public Safety, ….

Dickerson: Miranda is a Constitutional holding, not just prophylactic. Due process "VOLUNTARINESS" stands, but not as the 5th amendment rule, but as a 14th amendment rule

Applying and explaining Miranda cb510______________________________________________________28A s pre Miranda silence CAN be used as evidence against him, but invoking the right to silence can be invoked by silence.Your non-Mirandized or defectively Mirandized comments can be used to IMPEACH .A Second Mirandized interrogation can follow a First even UNMirandized interrogation so long as enough TIME has passed or is Knowledge of subjects to be questioned does not affect voluntariness of a Waiver.

CUSTODY REQUIREMENT Custody v Focus cb 515 – 519_________________________________________28Must be in Custody in circumstances inherently coercive (Beckwith and Stansbury- in home questioning probably not coercive yet)Roadside Questioning NOT custody (brief and usually not at mercy of police)Edmond: drug checkpoint for drugs is unconstitutional because it not look to public safety.

Interrogation defined under MIRANDA__________________________________________________________29INNIS: any words reasonably likely to elicit incriminating response either inculpatory or exculpatoryMauro: husband wife conversation in police presence not custodial interrogation.

The “jail plant” situation; “surreptitious interrogation” cb 528______________________________________29Perkins: Coercion occurs when someone feels compelled to answer. Police can use strategic deception. Prison gray v. Police blue.

Watch to make sure 6th amendment has not attached yet, if it has police can not initiate any exchange, can only listen.Even if 6th had attached, it is offense specific.

“Custodial Interrogation” and the “booking question exception” to Miranda_____________________________29 Non Testimonial information is not barred even if Miranda warnings not provided. (Muniz)

“Public Safety” exception to MIRANDA_________________________________________________________30 Quarles: because likely would not have told location of gun if Mirandized, the public safety outweighs advantages of giving Miranda

Waiver – a single officer’s testimony that they gave ∆ the Miranda is sufficient.___________________________________________________30Waiver can be implied (Johnson) after Miranda given and speaks voluntarily.

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CONN V BARRETT cb545____________________________________________________________________________________________30Must invoke the right to counsel generally for best protection. A limited invocation of right to counsel can leave open on other issues

Edwards v Arizona Police must cease all questioning when requests attorney. Subsequent waiver must be knowing, intel, voluntaryunless suspect re-initiates further contact with the police. Here police re-initiated with Edwards.

After 5th right to counsel invoked, PD can not even initiate questioning about other crimes.

TEST: in determining if waived with out knowing, intel, and voluntary: = 1)suspect initiate and 2) Tot of Circumstances relatedness to

Application of EDWARDS 5th amend analysis to 6th Amend right to counsel___________________________31After 6th right to counsel invoked, police can NOT question 's until they have opportunity to speak to counsel.6th amendment rights offer less protection because is OFFENSE SPECIFIC. ie waived new miranda and answered new unrelated questions

Suspect not requesting a lawyer but one has been retained for him…___________________________________31Police have no obligation to tell suspect who does not invoke 5th right to counsel that counsel is trying to contact him. (Burbine)Counsel must be Solely requested by the Suspect.

§5 MASSIAH revisited: Massiah and Miranda compared and contrasted_______________________________32WILLIAMS I: Police can not interrogate a represented by counsel after a refusal to speak without the presence of such counsel

Reconcile: INNIS did not know would elicit response while WILLIAMS played on mental fragility and religion.Powell: 4th amendment habeas claims barred where full and fair litigation of 4th amendment claim in state court.

What constitutes valid waiver of 6th amendment right______________________________________________32MIRANDA is sufficient to warn suspects of both 5th and 6th amendment rightsWaiver for 5th and 6th are the same. See Burbine pg 32.

Always need a state actor for these rights to be violated. 5,6,4, and 14th amendments. (fundamental fairness, shocks the___________________33

§4 The “due process” – “voluntariness” test________________________________________________________3314th amendment is the FINAL stop to protect suspects.

Voluntariness under the 14th amendment_________________________________________________________34Police can use deception and court will gauge under "totality of circumstances test" to determine if suspects will overborne.Reliability and NO coercion are goals of 14th amendment voluntariness test.

Fulminante: under danger from other inmates and used by informant is to coercive and violative of 14th amend voluntarinessConnelly: Coercive force Must be a State Actor: the Voice of God is not a state actor.

Ch. 11 Scope of the Exclusionary Rules_______________________________________________________________34Exc Rule to deter police from violating 4th, 5th, or other amendments. Applies to direct and derivative evidence ["fruit of the poisonous tree"] (Wong Sun)EXCEPTIONS: Independent Source Inevitable Discovery circumstances too attenuated (established by Nardone)

Confessions: Mirandizing insufficient: Look to Time Delay, police intent, and intervening factors to weaken causal linkEXAM: Is the evidence sought to be excluded the product of illegal activity? if YES, perform Attenuation analysis. Is the analysis

sought to be introduced bear a sufficiently central relationship to the illegality?

§2 The “Fruit of the Poisonous Tree” cb785______________________________________________________34Test: is whether the granting establishment of the primary illegality or instead by means sufficiently distinguishable to be purged of taint..Giving Miranda is not enough (Brown) to attenuate the "taint of an unconstitutional arrest."A confession given after valid Waiver of Miranda but also after an illegal arrest (ie warrantless in home violating Payton) is NOT barred.

Segura: Look to plain view (exclude if not legally there), Independent source (was one), and attenuation (was attenuated, no arrest infoused to secure a warrant with P.C.)

INDEPENDENT Source Doctrine 2 barriers: 1) was the "legal" discovery illegally prompted by the initial entry 2) if info obtained in illegal entry used to obtain legal warrant to enter

Live witnesses are not excluded since they are independent sources, would likely come forward or be discovered.

B. the Inevitable Discovery” Doctrine in 6th amendment cases_________________________________________________________________36Williams II: Inevitable discovery doctrine applies also to 6th amend through a preponderance of the evidence.Applies if evidence would have inevitably been discovered in the same condition Legally by Methods already under way.Only applies to secondary evidence, not primary evidence.

C. Is a confession obtained in violation of Miranda a “poisonous tree?”_________________________________________________________36Is there a right to silence that has been unscrupously honored under Mosely pg30

Admissibility of subsequent statements should center around whether knowing and voluntary in light of the New Miranda warns

§3 Use of Illegally obtained evidence for IMPEACHment purposes_____________________________________37

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Applies only to testimony, not other witnesses. Applies to both direct and indirect (swatch of cloth) evidence to allow the impeachmentA promise of immunity (ie for grand jury testimony) is the "essence of coerced testimony"

Use of an "involuntary"/"coerced" statement even for impeachment would constitute a "denial of due process of law" (Mincey) Shocks Con

Statements obtained in violation of 6th amend Wariver in Jackson (p31) CAN be used to impeach (Harvey). Invalid Waiver still ImpeachablIf 6th amendment right to counsel invoked, waiver must be K,V, & I, and it will be presumed invalid if contact initiated by police

Silence for Impeachment_____________________________________________________________________38Every POST arrest silence is insolubly ambiguous. (Doyle) and may not be used against 3 EXCEPTIONS: Silence questioned about that could impact jury could be found to be HarmLess Error

PRE-arrest silence CAN be used to impeach when (1) impeaches 's credibility & (2) When no Gov't induce silencePost arrest Pre-Miranda silence can be used to cross-examine

Post Miranda warning can not be used as substantive evidence to refute 's defense of Insanity at time of offense.

§1 “Standing” to object to the admission of Evidence cb770-785______________________________________38Standing to challenge 4th violation ONLY by those whose rights are violated in search itself, not just those aggrieved (Alderman)Asserting standing cannot be later used against (Simmons)

**Standing depends on whether Police action sought to be challenged is a search (ie violation of legit expectation of privacy) withrespect to the Person Challenging the Intrusion. (Rakas) See KATZ legit expect of privacy pg8

**And must be the person charged with the offense (Rawlings)

Ch 9: Lineups, showups, and other pretrial identifications________________________________________________39Focus on Perception -> Storage -> Retrieval of memories

§1 Dangers involved in eyewitness Identifications.___________________________________________________39Line up Show up (single suspect to a single witness) In-Court identification_________________________________________________39

Once charged by Indictment, Information, Prelim hearing, or arraignment, accused is entitled to have counsel present seeking to ID Perp."nothing guarantees a perfect trial"

IN court ID's must be shown with CC evidence that they are not tainted (fruits) of an earlier line-up ….High Degree of SUGGESTION inherent in a line-up. Could prejudice . (WADE)

Line-ups are not testimonial (5th self incrim) and refusal to participate can be used as circumstantial evidence of "consciousness of guilt."should there be "blank" line-ups?

DUE PROCESS TEST: was confrontation so IMPERMISSIBLY SUGGESTIVE as to give rise to very substantial likelihood of IRREPARABLE MIS-IDENTIFICATION. (reliability) (simmons) DPTest announced by Stoval (hospital show-up)

§2 The court Retreats: KIRBY, ASH cb655______________________________________________________406th Right to have counsel present ad ID procedure only triggered when 6th amend attaches (Kirby)

in absence of 6th violation, must show a 14th violation.

§3 Due Process and other limitations cb664_______________________________________________________41Stoval: not a due process violation to do hospital room show-up when supported by necessity*Even if ID is unnecessarily suggestive, it will not be excluded IF the ID is Independently RELIABLE>

Using independent indicia of reliability from Neil v Biggers1) Opportunity to view witness at time of crime (HOW LONG)2) Witnesses degree of attention (heightened, lessened, or casual)3) Accuracy of description of criminal (accurate or many discrepancies) 4) Level of certainty demonstrated at confrontation5) Amount of time lapsed between confrontation and crime (hours, days, months…)

Elizabeth Loftus & Katherine Ketcham “Witness for the Defense”_____________________________________42**Heightened emotional states despite "training" do not help "stamp" in memories.

WEAPON FOCUS

Professional Responsibility: the roles of prosecutor and defense counsel____________________________________42Right to counsel (6th in Anderson) can ONLY be waived by Suspect, not counsel. Unequal bargaining powerProsecutors have discretionary power as to who and what to charge. Discretionary Executive decisions not subjected to judicial review.Judge can not reject Plea bargain unless (1) holds prosecutor abused discretion AND (2) states his reasons for disapproving. (Ammidown)

But judge is free to sentence however he wants (unless it is for the jury)

Ch 26 Double Jeopardy____________________________________________________________________________43

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DJ= a prohibition against a second prosecution for the same offense after an acquittal or conviction for that offense in prior proceedingor against multiple punishments of the same offense.also mistrial, dismissal, and collateral estoppel depending of timing and reasoning for it.

§1 Reprosecution after a Mistrial (ends a jury trial before a verdict is rendered)__________________________43

TEST: Does judge grant mistrial (w/o regard for ’s objections) for “manifest necessity” or in the “ends of public justice”?________________44If YES, then a second trial is not prohibited by DJ. Totality of circumstances Test

Allows fatally flawed indictments to be reprosecuted (Sommerville)

Christ v Bretz: applied to States the fed standard of Jury sworn in or first witness sworn, that DJ attaches.

If Prosecution goads into moving for a mistrial and it's granted is the ONLY time that DJ might prevent retrial from 's motions.(kennedymust be more than overreaching, must be intentionally sought by prosecutor.

§2 Reposecution following an acquittal_____________________________________________________________45Government is entitled to one FULL opportunity to get conviction (Scott)……Distinguish dismissal from mistrial (can be funct equivalents)ACQUITTAL is FINAL even if errors are made.Moore (DCCIR) drew distinction between DEFENSES leading to favorable mid-trial resolution and OBJECTION which not change guilt.An appellate reversal of a JNOV where jury convicted, is simply a re-instatement of the jury verdict.

§3 Reprosecution following a Conviction___________________________________________________________46Ball Rule: retrial permissible following reversal of conviction on direct appealBURKS EXCEPTION: retrial not permissible following reversal of conviction on direct appeal on the sole ground of insufficiency of the

evidence.TIBBS: Retrial permissible on 13th juror reversalTATEO: Retrial permissible when conviction declared invalid on collateral attack

DJ not preclude retrial even if some of the evidence, later held inadmissible, WOULD have been sufficient to sustain guilty verdict (Nelson)Short ration: it is harmless error if the problem would have been fixed because the verdict would not have changed.

Green: IMPLIED acquittals to more severe charges prevent retrying on THOSE charges when conviction reversed.also applies to sentencing.

§4: Reprosecution by a different sovereign DUAL SOVEREIGNTY____________________________________47

Ch 20 §3 The right to “EFFECTIVE” ASSISTANCE of Counsel cb1149___________________________________47MOSTLY a 14th amendment Denial of Due process analysis. Ensuring a "FAIR TRIAL" is the benchmark.

Powell v Alabama right to counsel and denial of due process under 14th amendment protection of life,liberty property.____________________47Court indicated there that the right to counsel is not discharged by an assignment that did not give “effective aid” in prep and trial of case.

IAC: 1) counsel's performance was deficient such as to effect fairness of trial"below objective standard of reasonableness considering all the circumstances" -- Great deference granted to counsel decisions

2) That the deficient performance prejudiced the defense.Must show a reasonable probability that, but for counsel's unprofessional errors, that the result would have been different.STRICTLAND: failure of atty to provide mitigating evidence at sentencing was not prejudicial

Strategy beyond review.

Must show specific ACTIVITY or INACTIVITY and how it prejudiced the defendant.

Whiteside: an attorney's failure to let a commit probable perjury does not create IAC.

Defendant’s prevented false testimony and compromising the ’s right to effective assistance of Counsel_______________________________48

§4 Multiple presentation and conflicts of interest_______________________________________________________49

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