Benji.outline.crim Pro Garland Spring 2009

8/7/2019 Benji.outline.crim Pro Garland Spring 2009

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OUTLINE: Constitutional Criminal Procedure - Garland, Spring 2009.

Exclusionary Rule: Evidence obtained by govt through violation of(s 4th, 5th, 6th, or Miranda

rights, are inadmissible under both the ER and the Fruit of the Poisonous Tree Doctrine incourt to prove his guilt.

Fruit of the Poisonous Tree Doctrine: secondary or derivative evidence coming from

the direct products of a violation of(s 4th

, 5th

, or 6th

Amend. rights are fruits of the poisonoustree and are barred under the exclusionary rules.

The 4th

AmendmentThe right of the people to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to besearched, and the persons or things to be seized.

y 4th Amend.s Exclusionary Rule:

o Evidence seized in violation of the 4th Amend. cant be used against (

o Rationaleif it was allowed, then 4th

Amend. would become useless and might as well

be stricken from the Constitution. (Weeks v. US, 1914)o Mapp v. Ohio, 1961, extended the Weeks exclusionary rule to state criminal

proceedings by way of 14th

Amend. due process clause.

o Rationale1) deterannce of police misconduct, 2) preserve judicial integrity by not

allowing unconstitutionally acquired evidence (largely deemphasized).

y 4th

Amend.s Fruit of the Poisonous Tree Doctrine:

o ExceptionInevitable Discovery Doctrine: Fruit of the poisonous tree are admissible if they were, or would have been

discovered by a lawful means

y SEARCH: a governmental invasion into an area in which a person has a reasonableexpectation of privacy

o 4th

Amend. protects people not places and what ( seeks to preserve as private,even in...public may be protected. (Katz v. US, 1967)

o Test for Search: (Harlans Katz concurrence; majority in Smith v. MD, 1979)

Katz Rule:( must have had a reasonable expectation of privacy

1) subjective( must have exhibited an actual expectation of privacy2) objectivethe expectation must be one society is prepared to recognize as

reasonable.

yNo Reasonable Expectation of Privacy for the

Following:1) Voluntary Disclosures to 3

rdParty: by voluntarily disclosing the info to a third party, (

has assumed the risk that it will not remain private.a. Applies to both false friends, and wired false friends (US v. White)

b. Elements: 1) voluntary disclosure; 2) 3rd

partys cooperation with govt.


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2) Knowing Exposure to Public: what a person knowingly exposes to the public, even inhis home or office, is not protected by the 4

thAmend.

a. Elements:i. 1) vantage point must be lawful and routinely occupied by public

ii. 2) exposed matters must be subject to acquisition by naked senses.

b. CA

v.C

iraolo held that there was no search when cops viewed pot in(

s curtilagewith their naked eye form a plane b/c any member of the flying public could haveseen it.

c. Bond v USheld that the physical manipulation of the bag constituted a searchbecause it violated a reasonable expectation of privacy.

d. Kyllo v. USheld all details in home are private; so the use of technology notreadily available to the public (like thermo-radar) is a search.

3) Lack of Societal InterestOpen fieldsa. Open Field Doctrine: society doesnt recognize a reasonable expectation of

privacy for open fields (even if No Trespassing sign) (Oliver)b. Curtilage: is distinguishable. Its the area immediately surrounding a private

home where intimate activities of the home extendi. gets 4th

Amend. protection, but not as strong as the home.

ii. Is it curtilage?Factors: (US v. Dunn)1. Proximity of land to home

2. Surrounded by same enclosure surrounding the home3. Nature of use of area

4. Steps taken to protect the land from observationask: is the area in question so intimately tied to the home that it should be placed

under the homes umbrella protection of the 4th

Amend?fencing on the ground level may not be a REOP if there are any modes of

surveillance possible under the circumstances.

4)

TheF

act that Nothing of Significance will be Learneda. There is no violation of REOP if the conduct cannot reveal any new or significantinformation (must be able to show in advanced that the action could not disclose

new info) (US v. Jacobson)b. A contraband/no contraband test, like dog sniffing, is not a search because there

is no privacy right to possess contraband. (US v. Pace)

SEIZURE: whereas search is concerned with privacy interest, seizures are concerned withpossessory interests.

- propertywhen there is some meaningful interference with an individuals possessoryinterests in that property

- Peoplewhen a PO by means of physical force or show of authority in some wayrestrains the liberty of a citizen (Terry); when viewed in the TOC, a reasonable person

would have believed that he was not free to leave (Mendenhall)

Mere Evidence Rule: only certain categories of evid can be seized: fruit of a crime,

instrumentality of a crime, contraband. However, after Hayden, PO may now seize any evidencethat has a connection to the criminal activity under investigation.


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PROBABLE CAUSE: normal substantive showing for a reasonable search or seizure. Itsneeded for arrest and search warrants, and also for all arrests (regardless of whether a warrant is)

y PC to Search: exists when the facts and circumstances within the cops knowledge, and of

which he has reasonably trustworthy information, are sufficient to warrant a reasonable belief

that a specifically described item subject to seizure will be found in the place to be searched.o Requires 3 things to be objectively shown likely that:

1) A specific item that is probably subject to seizure (like evidence, contraband,

fruits or instruments of crime)2) Is presently

3) In the particular place to be searchedo Can go stale if the passage of time has diminished the likelihood that the object is

presently in the specific place; time is relevant because moveable objects may bemoved, and consumable objects may be consumed.

y PC to Arrest: exists when the facts and circumstances within the cops knowledge, and of

which he has reasonably trustworthy information, are sufficient to warrant a reasonable beliefthat an offense has been or is being committed by the person to be arrested.

o An arrest (seizure of a person) requires two things to be likely:

1) a particular person2) has committed or is committing a particular offense

o PC to arrest does not go stale

y PC is an Objective Concept; cops subjective intent or state of mind is irrelevant, if theobjective facts make a showing ofPC (Whren v. US)

y How probable does it need to be? (either through direct info, or hearsay)

o Just a fair probability under the totality of the circumstances (Il. v. Gates).

o Hearsay (info. supplied by a third person) Initially, we had the Aguilar-Spinelli Test, which said that judges determine

PC with facts bearing on the following two prongs:1) basis of knowledgehow did informant get the info? First-hand

observations are ok, conjectures and rumors are not.2) veracitywhy should we believe him? Evidence of his character.

a. Credibility prong, and reliability of the information Il. v. Gates (1983) abandoned the test and made it part of the relevant

considerations in the totality-of-the-circumstances analysis. It was too complicated for magistrates who are often lay people,

The main question to ask is whether there is a reasonably fair probability that

contraband or evidence of a crime will be found in a particular place. Theres more fluidity, judge can take anything into consideration.


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WARRANTS: a document issued by a judicial officer that authorizes a search or arrest

o Per se rule: Searches conducted without a warrant areper se unreasonable under the

4th

Amend., subject to only the few well-delineated exceptions.

WARRANT ISSUANCE:

y Warrant, Requirements for Validity:

1) Probable Causea. Supported by oath or affirmation

i. Apply the Franks Test to see if a PO made a false statement:

warrants are presumed valid, but can be overcome if( makes asubstantial preliminary showing (specific allegations + proof) that:

1. A false statement was included in the affidavit2. That was made knowingly and intentionally, or with reckless

disregard for the truth3. And was necessary for finding ofPC

if so, then warrant is void, and fruits must be excluded.

b.

Particularly describe places to be searched and items or persons to be seizedi. Place to be searchsufficiently described so officer executing it can find itwith reasonable effort

ii. Seizureas much as reasonably expected. Less particularity needed forcontraband than for papers and effects that the 1

stAmen protects.

2) Implicit Restrictions:a. Issuance by a detached and neutral magistrate

i. A warrant is invalid if the issuing magistrate manifests a lack of neutrality

b. Reasonableness of issuance and execution

y SEARCHWARRANTS: a warrantless search is per se unreasonableo

A reasonable search requires aW

arrant: A warrant to search is only issued upon probable cause:

y quantum likelihood that1) something particular

2) is probably subject to seizure2) presently

3) in specific place to be searched.

y ARRESTWARRANTS: an arrest not founded on probable cause is unreasonableo NoWarrant Rule for public arrests:

Felony Arrest:

y A cop may arrest a person in a public place without a warrant, even if

it is practicable to secure one, so long as she has probable cause tobelieve arrestee has committed or is committing a felony (US v.

Watson) Misdemeanors:

y a cop may arrest a person in a public place without a warrant, even if it

is practicable to secure one, so long as she has probable cause tobelieve that arrestee has committed even a minor criminal offense in

his presence. (Atwater v. Lago Vista)


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o a search or arrest warrant is needed to enter a dwelling to arrest a felon; the entry is asearch that sparks the 4

thAmend.

y PARTICULARITY Requirements: warrant must particularly describe both the place to be

searched and the persons or things to be seized.

o

The descriptions must be as reasonably particular as possible; otherwise,P

O get toomuch discretion during execution which undercuts PC requirement. Vagueness in the warrant is tolerated to greater degree when PO have

described the item with as much particularity as can be reasonably expected(Andresen v. MD)

More detail is required for stolen items than is for contraband. (Id.)

o Particularity must be in the warrant, not in supporting documents. (Groh v. Ramirez)

However, it can still be constitutional, despite lack of particularity within thewarrant, if it sufficiently references to other documents that have that info.

The purpose of this is to ensure that the magistrate actually found PC.

oAnticipatory

Warrants are warrants that become executable upon the occurrence ofa triggering condition (US v. Grubbs)

Do we need PC at the time magistrate issues warrant?

y NO! all warrants are anticipatory cuz PC is concerned with whetherevidence will be found at the time the search is conducted

o So magistrate must determine that is probable that evidencewill be on the described premises when warrant is executed.

Is the warrant defective, for lack of particularity, if it fails to state thetriggering condition?

y NO! Plain language of 4th

Amen. provides no such requirement; onlyrequires particularity for place to be searched, and things to be seized.

y So warrant doesnt need to state basis forPC, nor the triggering event.

o Mistakes: warrants with mistaken info. are potentially unconstitutional

Of place, at time of issuance:

y If it is reasonable to believe that PC to search or seize extends to theplace/person described, warrant is particular and valid

o A later showing that the warrant mistakenly included an area

that should not have been included does not invalidate it.o But, its invalid ifPO knew or should have known of the

mistake

Of place, at time of execution:

y If upon arrival the PO knew or should have known that the warrantwas too broad, they must limit their search to only Ds unit.

y A search of the wrong place may still be reasonable if they had noknowledge, or reason to know, of the mistake. But they must desist

one they find out they are searching the wrong place. (MD v. Garrison)


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WARRANT EXECUTION:o If a warrant is valid but improperly executed, the resulting S&S can be unreasonable

o Warrant need not specify manner of execution, but is subject to limitations1) only police may execute

2) Scope: can only search for the thing on the warrant, can open things if the item

could fit in it. There also the plainview doctirine.3) search warrant must be executed promptly while PC still exists4) Absent exigency, no forcible entry unless:

a. PO knocks at door (Wilson v. Arkansas)i. Identifies self as PO

ii. States purpose for entryiii. Requests admittance

iv. Is denied admission5) Persons unnamed in warrant may not be searched merely because of presence

o Knock and announce Principle: (Id.) To justify a no knock entry, PO must have a reasonable suspicion that

knocking and announcing there presence would be dangerous or futile, or thatit would inhibet effective investigation of crime.

Whether no knocking was justified depends on particular facts of cases:

y Factors:o Circumstances presenting a threat of physical force

o Hot pursuit cases (ie escaped prisoner)

o Where PO have reason to believe that evidence would likely be

destroyed if advanced notice were given.

o Mistakes in Execution: the reasonableness of the search or seizure depends on the

reasonableness of the mistake. Two types of mistakes.1) Mistaken interpretation ofWarrant

a.

Must be reasonable at the time of execution to believe that the warrantauthorizes the action taken

2) Mistaken Warrant:a. Reliance on a mistaken warrant is ok if it was reasonable at the time of

execution not to realize its description was mistaken. (Garrison)


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Exceptions to the Warrant RequirementThere are a few well-delineated exceptions to the warrant requirement

1) Search Incident to Lawful Arrest (SILA)

y Rule: a PO who makes a lawful full custodial arrest may conduct a contemporaneous

warrantless search of (search must follow arrest):

1)

the arrestees person2) area within his immediate control3) if in a home, closets and other spaced immediately adjoining place of arrest from which

an attack could be immediately launched

y Rationale:1) to prevent arrestee from using a weapon to harm officer or to escape

2) to prevent arrestee from destroying or concealing evidence3) to protect officers from harm, especially in the home

y Required Showing for SILA: a lawful custodial arrest was made1) A Lawful Arrest:

a. PC, and sometimes a warrant

2) A Custodial Arrest:( must be taken into full custodya. If you have PC, can do a search before taking full custody.

y Dont need PC to search

y PO is given discretion to search, as long as it follows a lawful custodial arrest

y Scope: narrow, Limited to:

1) arrestees persona. may thoroughly search and remove any items found

b. if the search can be made on the spot, it can be done later like at jailc. includes pockets, open containers found theirein, and searched containers

immediately associated with the person, as long as containers are big enough toconceal a weapon

2) area within immediate control of arrestee (Chimel)a. where ( can get a weapon or destroy evidenceb. factors to consider whether its within control of arrestee:

i. arrestee handcuffed?ii. Arrestees size and dexterity

iii. Are the containers open or shut? Locked?iv. Number of officers relative to suspect

c. Automobile interior: (does not include trunk and engine area)3) areas immediately adjacent to place of arrest, for dwellings

for cars: Gant v. Arizona

a. The safety and evidentiary justifications underlying Chimel's reaching-distance ruledetermine Belton's scope. Thus, Belton doesnt authorize a vehicle search incident to arecent occupant's arrest after arrestee has been secured and cannot access the interior ofthe vehicle. (Belton said can do a contemporaneous search of passenger compartment

contemporaneously with the arrest of an occupant)b. Can search the passenger compartment when it is reasonable to believe that evidence of

the offense of arrest might found in the vehicle.


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2) Exigent Circumstances

y May apply when time constraints make it impracticable to seek a warrant; an exigency is a

situation that requires immediate action

y Showing needed to invoke this exception:1) Probable cause to search

a. This exception only gets rid of the need for a search warrant.b. Dont need to demonstrate PC in advanced, but the search will be unreasonable if

officers cant later show that they had PC prior to their search.

2) An exigencya. A fair probability that some particular governmental interest would be frustrated

if a warrant were sought prior to searching

i. Balance the importance of the interest with likelihood of frustrationii. The interest must be sufficiently important to justify the risk to privacy

1. Should rarely be sanctioned when there is PC to believe that only aminor offense has been committed

b. Exigencies possibly justifying warrantless entry into a home (must have PC):

i.

Hot Pursuit: created when an officer is actively pursuing a suspect whoenters a home or other private place; the need to apprehend the fleeing andalerted criminal qualifies as an exigency (Warden v. Hayden a full scale

search of a home was justified when PO had PC to believe that an armedrobber went into the home)

1. Requires immediate and continuous pursuitii. Imminent destruction of evidence

iii. Need to prevent a suspects escapeiv. Risk of harm to PO or others

c. Relevant factors for determination of exigency:i. Gravity of the offense

ii. W

hether suspect believed to be armediii. Is there more than minimum PC?

iv. Is suspect present?v. Likelihood of escape if not apprehended

vi. Can entry be made peaceablyvii. Whether entry is in day or night

y Scope:o Should extend to only the areas where the item that officers have cause to look for

could be and should last only so long as the need to search continues

So hot pursuit into a home cannot justify a search of drawerso If the feared harm is destruction of evidence, then the discovery that no one is present

could negate the need to act and terminate the exigency


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3) Vehicle and Container Searches:

y The Carroll-Chambers Automobile Doctrinethe warrantless search permitted by this

exception is not based entirely on exigency or need to act, it rather rests on a diminished 4th

Amend. expectation of privacy.

y Showing needed to Trigger this Exception (Chambers):1. Probable Cause to Search a Vehicle:

a. PC requires a fair probability that the vehicle contains an item that thegovernment has a legitimate interest in seizing, such as contraband, evidence,

or the fruits or instrumentalities of a crime.2. A vehicle that PO have stopped on a public roadway, or parked and apparently

capable of operation in a non residential location.

y What Vehicles count?o Any readily movable mode of transportation with own source of power that is not

being used primarily for residential purposes; does not include immobilized cars

May include those without own power, but doesnt include if immobilizedo Must be readily mobile: a vehicle might well depart before officers can obtain a

search warrant, frustrating governmental interst in conducting a search.

o Must be used primarily for Transportation: Rooted in the diminished expectation of privacy in vehicles. motor homes: a motorhome that otherwise meets the qualifications for the

auto exception should be treated just like any other exception. Factors:

y Location

y Immobility

y Licensing

y Connection to utilities

y Ease of access to public roado PO can seize a car if there is PC to believe its contraband (used in the commission of

a crime), then they can do an inventory search. (Florida v. White)

y WhereMust the vehicle be located?:o Vehicles stopped while in transit on a public roadway

o Parked in a public placeo Parked on the private property of someone else

o Not clear if found on private property or curtilage of the vehicle owner

o Readily capable of use in a place not regularly used for residential purposes

y Scope:

o The scope of a warrantless automobile search is defined by the object of the searchand places in which there is probable cause to believe that it may be found.

o So it may not follow that probable cause to search applies to the entire vehicle.o Search must cease once they find the evidence for which they were searching, absent

new information that would justify a new search.

o Cant search any portion of the vehicle that could not contain the object of the search.

o locked containers may be searched if there is probable cause


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y where may the search of the car take place?o PO may search the vehicle at the scene, or may take it to the station to conduct a

warrantless search thereo However, it shouldnt adversely affect a privacy or possessory interest, the

subsequent search may be unreasonable if officers delay indefinitely

y Separate containers within the vehicle:o General Rule: containers may be searched without a warrant during an otherwise

lawful automobile exception search; it may be searched at the scene, or it may beseized and searched without a warrant shortly thereafter at the police station.

o Applies in two situations:1) Valid Warrantless Search of a Car: when PO unforeseeably come across

a container that is large enough to hold the criminal evidence for whichthey had PC to search; OR

2) When the PO have PC to believe that a particular container holdingcriminal evidence will be found in a car (they may conduct a warrantless

search of the car to find the container)

On the other hand, they may not search the container if its outside the vehicleunless they have a warrant or some other exception. If there is PC to search it,they may seize it, but they will need a warrant before they can search.

o Read 230-240 of Understanding to get a briefed on the cases.

4) Inventory Searches:o General Rule: a routine inventory search of a lawfully impounded car is reasonable

under the 4th

Amen even if conducted without a warrant and PC. It must be administrative and non-pretextual; evidence will be inadmissible if

the administrative search was a pretext for criminal investigation. Officers should act mechanically according to a set routine

yIt is an exception to both the warrant requirement and the

PC requirement because inventoryis not part of a criminal investigation, but rather an administrative act. And there are no case

specific facts to be reviewed by a magistrate.

y Rationale: warrantless inventory searches are reasonable because:o They protect property interests of owner/arrestee

o Protect officials against claims of lost or stolen property

o Protection from dangerous instrumentalitiesthus its reasonable because the interests outweigh owners expectation of privacy

y Applies to both inventories of lawfully impounded vehicles, and of arrestees.

y Inventory Searches ofVehicles:o Showing needed to conduct a warrantless inventory search:

1. Lawful impoundment:a. Lawful = adequate reason (sufficient state interest) to take possession

i. Impending traffic or threatening public safety and convenience

b. Unlawful = unfettered discretion of the PO; small discretion is ok but mustcomply with standards and not be on suspicion of criminality

2. Standard Police Procedures:a. The inventory must be a routine or standard procedure of the department

conducting it


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b. Discretion is allowed if thats the policy, but must comply with establishedstandards and not as a pretext for getting criminal evidence.

y although Opperman alluded to the possibility of allowing the owner to make alternatearrangements for the belonging if possible, Bertine said that PO dont need to act in the least

intrusive manner possible.

y Scope of a Valid Vehicle Inventory:o Authorized by standard procedurea search beyond the places allowed by procedure

is beyond the places allowed for the inventory exception.

o Can search relatively accessible parts, but not under seats and within upholstery

o It is possible forPO to open closed containers if the policy is that they do so in everyinventory search; but there is some dicta saying it doesnt have to be all or nothing.

o They may probably open the trunk or locked compartments, but not if it were to causesignificant property damage

o Whether the inventories are constitutional should be based on an evaluation onwhether the 3 justifications for inventory are at stake.

y Inventory Searches of Arrestees:NeitherPC nor a warrant is needed to conduct aninventory search of an arrested person as part of a routine inventory incident to jailing.

o Showing needed: (Il. v. Lafayette)1. Lawful Arrest:

2. Prospective incarcerationrationales are irrelevant if hes not gonna beconfined in jail

3. Standard Police Procedureofficer must act according to standards

y Scope of Inventory of Arresteelimited by procedure and 4th

Ameno Limited to the Person: may thoroughly search the person, removing all belongings.

A strip search must be justified.

o Personal belongings: may open and look through any article or container found on

the person or in his possessiono Time and Place: typically at the jailhouse before being incarcerated, but could be

done at an earlier time and different location if it complies with the three policies.

y Rational?o Protect Arestee property against theft and PO mishandling

o Deters false claims

o Prevention of injury to those in jail from dangerous instrumentalities

o Verification of identiy

SILA INVENTORY

Substantially contemporaneous; not remote in

time and place

At the station with no apparent time limit

Applies to every arrestee Only those incarcerated according to standardprocedures

Scope=area of control, no strip search Maybe strip search


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CONSENTRULE: a validly obtained consent justified a warrantless search, with or without probable cause. IfPOdiscovers something seizable, he may seize it by way of plain view doctrine. (also applies if in custody)

Moreover, even if the person giving consent lacks authority, a warrantless search may still be

reasonable.

Rationale: waiver; not a search because theres no REOP

REQUIREMENTs1) voluntary consent 2) by a person with authority. Notedont need to show a government interest.

Necessity for Actual Consent: A consent search requires evidence that consent was actually given. Consent should not be inferred when a person simply acquiesces in or fails to resist an official demand

Voluntariness Requirement: The government MUST show, by a preponderance of the evidence, that

consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.

yVoluntariness is a question of fact determined in the totality of the circumstances

yRelevant circumstances fall into Two Categories:

1. External coercion or pressurebrought to bear on the individual

EX: Nature of the law enforcement conduct preceding the consent and the setting in which it occurred.

2. Internal, subjective strength of willpossessed by the individual.

EX:Native intelligence, educational level, maturity, prior experience with law enforcement, intoxication,and knowledge of the right to refuse or give consent.

Knowledge of the Right to Refuse: Officers do not have to warn a person of the right to refuse, but it is

relevant in the TOC of voluntariness.

SCOPE OF A VALID CONSENT SEARCHIf a person with authority has given a valid consent, an

officer is entitled to search any area to which the consent extends.

The scope cannot be broader than the scope of the permission granted. When consenter is not explicit about the scope the standard for measuring is that ofobjective

reasonableness What would a reasonable person have understood? EX: If reasonable to understand a consent as extending to a particular area, there is no need toconfirm that understanding by inquiring or seeking express permission to search the area.

Authority to Give Consent: Consent is valid only if given by a person w/ authority to consent.

Third parties may give valid consent if they possess common authority

Common Authority mutual use of the property by persons generally having joint access orcontrol for most purposes; its an assumption of risk argument (US v. Matlock)

1) 3d party must have actual common authority; AND

2) surrounding circumstances would lead one to reasonably believe he has such authorityif one says yes, and one says no, then there is no consent; but it would be bad if the PO intentionally

move ( so he cant say no.In some cases, officers search based on consent given by a person who, in fact, does not havecommon authority. In those cases, consent is not valid.

EXCEPTION The Apparent Authority Doctrine: the search is still reasonable ifofficers have an objectively reasonable belief that the person who has given consent has

common authority. [Illinois v. Rodriguez]

Special Rule Even if an officer conducts a search in circumstances that render it

unreasonable to believe that a person has authority to give consent, the search will be

constitutional if the person does in fact have actual authority to consent.


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WHOMAY CONSENT MAY NOT CONSENT

Owner in possession Landlord

Lessee Hotel Clerk

Family Members College Administrator

Roommateonly to those common areas that

the roommate and the suspect share. The roommatecannot give permission to search any room (EX:

suspects bedroom) in which the roommate does not

have unfettered access.

Business Employer/Employee

Any Person who it is reasonable for thepolice to believe has a right to consent

[ILLINOIS v. RODRIGUEZ]

High School Administrator(see special circumstances)

PLAIN VIEWDEFINITION:An object of an incriminating nature may be seized without a warrant if it is in

plain view of a police officer lawfully present at the scene

RATIONALE: justification warrantlesslyseizingevidence in plain view during a lawful activity.

ELEMENTS: An article is in plain view and subject to a warrantless seizure by a police officer, if:

(1) Observed From a Lawful Vantage Point:no violation of the 4th Amen to get to the Vantage Point

4 ways in which an officer can observe evidence from a lawful vantage point:a. Discovered during the execution of a valid search warrant

b. Come into view during an in-home arrest pursuant to an arrest warrantc. discovered during a search justified under an exception to the warrant requirement

d. Arising from an activity that does not constitute a search and therefore, falls outside

the scope of the 4th

amendment.EX: An officer may be walking down the street and see pot plants in an open

window in s living room. Here, no search has occurred but does the officerhave the right to access the object? Go next element

y Private Place no amount of probable cause can justify a warrantless intrusion intothe home absent exigent circumstances, you can view into the home lawfully.

y Public Place No grounds are needed to justify the access because the 4th

Amendment does not restrict officers access to public places.

(2) Lawful right of physical access officerneeds lawful access to the item; the plain view doctrine doesnt allow officer entrance

without a warrantEntrance would require a search warrant or exception.

(3) Right to Seize is Immediately Apparent/Probable Cause to SeizeA police officer may not seize an article without a search warrant merely because he has a right ofaccess to it from a proper vantage point. Thus such a seizure is only legitimate where the evidence is

immediately apparent to the police that they have evidence before them.

Immediately Apparent means must have probable cause to seize the object in plain view

Cant conduct a search or seizure for the purpose of determining the character of the object. Ifthey do so, their search or seizure generates probable cause that leads them to seize the object, the seizurecannot be justified by the plain view doctrine because it is tainted by the preceding illegal search.


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RATIONALE: Reflects the notion that the PC to seize an object CANNOTbe the product of a search

or seizure undertaken to investigate the nature of the object. Remember, the plain view doctrine is

meant to free police form the inconvenience of securing a warrant to seize that which is in plain viewduring an otherwise lawful activity.

ARIZONA v. HICKS - THE DOCTRINE ATWORK: Here, an officer turned over a stereo to get a number and

in turn, discovered the stereo was stolen. The court ruled that since it was not immediately apparent that the stereowas stolen, despite the fact the officer observed it from a lawful vantage point and had legal access to it, since it was

not immediately apparent (and thus the evidence was not visible to him), it was an unconstitutional search.

REJECTION of an INADVERTANCE REQUIREMENTAn object is subject to seizure under the

plain view doctrine whether or not it has been inadvertently discovered. A discovery is inadvertent whenit is not anticipated; police dont know in advance of the location of the item and intend to seize it.

EFFECTEven with PC to seize an item in advanced with opportunity to secure a search

warrant for that object, they DONT need oneSo long as the other requirements for a plain

view seizure are satisfied, they may reasonably seize the item.Coolidge v. NH (1971) said inadvertent was a 4

thElem, but Horton (1990) said not recquired.

OTHER DOCTRINES:Plain Hearing Plain Smelling Plain Touch

VI. TERRY v. OHIO: THE REASONABLENESS

BALANCING STANDARD IN CRIMINAL

INVESTIGATIONSISSUE: How does the Court go about determining whether a particular search or seizure is

reasonable?

Terry v. Ohio made warrantless searches and seizures based on less than PC in limited situations.

Reasonableness Balancing Test: (Terry v. Ohio) Whether a warrant and PC apply to a givensearch/seizure, the central inquiry is the reasonableness of the govts activity under thecircumstances. Reasonableness is assessed by balancing the need to search/seize against the

invasion the search or seizure entails

Test of Interests; Government vs. Individual

There is no ready test for determining reasonableness other than by balancing the need to search [or

seize] against the invasion, which the search [or seizure] entails.

Government Interests:1. The general interest of crime prevention and detection

2.Protecting Officers from concealed weapons.

AGAINST THE

Individuals Interests:1.Freedom of locomotion

2.Expectation ofPrivacy

RULEWhere a police officer has a reasonable and articulable suspicion that a suspect is

armed and dangerous he may, without probable cause, perform a pat-down search for

concealed weapons.


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THRESHOLD QUESTION #1: WHEN IS A PERSON SEIZED?

DEFINITION OF A SEIZURE: ONLY when an officer, by means ofphysical force orshow

authority, has in some way restrained the liberty of a citizen may conclude that a seizure has occurred.

REQUIREMENTS FOR A SEIZURE:

1. Intent: Officer act with the intent of terminating the freedom of the individual2. Physical Force OR Show of Authority:

yPhysical Authority: Any actual physical contact with a person will qualify.

Sufficiency: The use of physical force is sufficient in itselfto complete a

seizure. The suspect does not have to submit to the force, although flight will end the seizure.

yShow of Authority Requires 2 Things:1) A show of authority that would make a reasonable person feel not free to leave whether a reasonable person would feel free to decline the officers requests or

otherwise terminate the encounter.

2) Suspect must submit to the authority

THRESHOLD QUESTION #2: WHAT IS REASONABLE SUSPICION?DEFINITION: The level of justification required to justify searches and seizures that are less intrusive

than ordinary, full searches and seizures; a showing that is less than probable cause and more than aninarticulate hunch;

Suspicion is reasonable is PO can point to specific and articulable facts that along with

reasonable inferences from those facts justify the intrusion.

The totality of the facts can still support a reasonablesuspicion of criminal activity.

y Effect:None of the individual facts relied in to establish a reasonable suspicion need beinherently suspicious or indicative of criminal activity when judged in isolation.

y Police officer must be able to articulate more than an inchoate and unparticularlized suspicion

or hunch of criminal activity by pointing to specific and articulable facts.

Specific Requirements: facts and circumstances lead a reasonable prudent person to conclude

that criminal activity may be afoot, or a person is armed and presently dangerous.1.For a Stop: Reasonable suspicion that suspect has committed, is committing, or is about to

commit a crime.2.For a Frisk: Reasonable suspicion that the suspect is armed and presently dangerous.

SCOPE OF STOP (Persons):The line between a temporary detention and an arrest is not clearly defined.

Generally, to qualify as a stop the intrusion on a suspects freedom of action must be markedlyless than that ordinarily associated with an arrest.

ySeveral Factors are Relevant:

1. Time: Investigative stops cannot continue indefinitely. At some point, they become de factoarrests. [There is NObright line on per se]

TEST: A detention is reasonable in duration when the police diligentlypursue a means of investigation

that is likely to confirmor dispel their suspicions quickly, during which it is necessary to detain thesuspect. Stop is unreasonable in scope if it takes too long


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2. Place: suspect may NOTbe transported to station on the basis of mere reasonable suspicion.TEST: Transportation of a suspect to a police station requires mores than reasonable suspicion alone.

EXCEPTION: judicial authorization for the seizure of a person on less probable cause

y Limited movements of a suspect depend on the circumstances:

y EX: During the lawful detention of a vehicle, an officer may order both the driver and

passengers to exit the vehiclepending completion of the stop.3. Conduct: HowMuchMay Official Intrude On A Suspects Liberty?

y [GENERAL QUESTION]: Whether law enforcement conduct is sufficiently limited to be

considered a temporary detention or so intrusive that it ought to be treated as a de facto arrest.

SPECIAL SITUATIONSPersons present during searches of premises

RULE:

An officer is allowed to detain an occupant of premises while she conducts a search of those premisespursuant to a valid warrant to search for contraband. [MICHIGAN v. SUMMERS]

The doctrine permits an officer to require a resident found outside his home to enter and remain duringthe pendency of the search.

LIMITATIONS:

1.Occupant or Resident Limitation Mere casual visitors or guests may not be detained.It is unclear whether the authority to detain extends to longer-term guests.

2.Potential search warrant Limitation If officers are conducting a search pursuant to a valid searchwarrant, detention of an occupant is clearly allowable.

3.Possible contraband Limitation A detention is reasonable object of the search is contraband.4.If search is too long- Detentions lasting longer than time it takes for a proper search is unreasonable

SCOPE OF STOP (Effects): When an individual is detained based on a reasonable suspicion of criminal activity, NOindependent justification is required to detain his personal effects that he is carrying.

ISSUE HERE: When an officer wishes to detain personal effects independent of the seizure of a

person, what is the constitutionality of such an independent seizure?TEST: A limited seizure of an inanimate object on less than probable cause is allowable ONLY when

the seizure is minimally intrusive and special operational necessities render it the only practicable means

of detecting certain types of crime.It is unclear whether any ground other than a reasonable suspicion of the presence of contrabandcan justify the independent, temporary detention of an effect. Both the (1) seriousness of the offense

AND (2) difficulty of detecting that offense would be relevant variables.

y Relevant Factors:

Variable Intrusiveness: To determine whether the seizure of an effect is sufficiently confinedin scope one must first determine the character of the seizure and the nature and extent of the

intrusions that result. EX: A piece of luggage that is seized from a person not only impinges on a persons possessory interest

but also impinges on a persons liberty. WHILE EX: A container seized from a shipment may only harm the possessory interest.

Time: If an object is seized from the custody of an individual, the seizure may last no longer thana seizure of the person. [See rules for duration of a seizure of a person]If the effect is not in the persons custody and therefore does not restrict personal liberty, a longer

seizure might well be permissible.


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Other Factors: canine sniff designed to test yes or no contraband is ok. However, cant open a container based on a reasonable suspicion.

NOTE: A lesser search of a container taken from a detainee, and perhaps even the opening of such a

container, might be permissible as an extended frisk of the person IF officers have a reasonable

suspicion that the container is harboring a dangerous weapon.

SCOPE OFFRISKS(Person):A protectivepat-downbased on reasonable suspicion must be strictly limited to that which isnecessary for the discovery of weapons, which might be used to harm the officer or others.

Officer MUST stay on the outer surface of the suspects clothing Not even into a pocket.

extends to every party of body where such weapons can be found

a container may not be searched or seized if it could not reasonably hold a weapon if the initial pat-down provides PC to believe that an object felt is contraband or criminalevidence, it can be seized by plane touch doctrine

The onlyjustification for a Terry frisk is to protect the officer during an investigatory stop. UNLESSits impractical to pursue the suspicion by remaining on the outer surface.

EX: If the copfeels a weapon during a proper limited frisk, its reasonabletoreach below the surface of the suspects clothing to extract it

Once cop has determined that there are no weapons, he must cease the frisk.

Even if an officer has a reasonable suspicion that an object felt during a friskis contraband, the officer may not manipulate it with his fingers in an effort to

determine its identity. [MINNESOTA v. DICKERSON]

SPECIAL SITUATIONSPersons Present During Searches of Premises

RULES:

For Persons Present in a COMMERCIAL ESTABLISHMENT A customer orclientpresentin a

commercial establishment at the time of a warranted searchfor contrabandMAY NOT BE SEARCHED

simply because he is within the confines of the area that may legitimately be searched.[YBARRA v. ILLINOIS] this person is a separate and distinct place clothed with his own constitutional protection.

SCOPE OFFRISKS(Vehicles):Rule: PO may conduct a limited weapons search of vehicles (vehicle frisks) based on a reasonablesuspicion that:

1. A suspect is dangerous: AND

2. May gain immediate control of weapons from the vehicle. [MICHIGAN v. LONG]

The suspect need not be in the car at the time of the search.

Rationale: To protect officers while conducting an investigation.

B

ecause of the danger posed by suspects stopped inside cars, police may routinely order boththe driver and the passenger out of the car whenever the car has been lawfully stopped. HOWEVERA vehicle weapons search must be restricted to those areas over which the suspect

would generally have immediate control, and that could contain a weapon. It is a limited area search of the passenger compartment and includes the authority to searchaccessible containers found within the passenger compartment if they could hold a weapon such as a gun,

club or knife.


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SCOPE OFFRISKS (Homes): Protective SweepsThe Doctrine ofMaryland v Buie: Arresting officers are empowered to look through or sweep a home

in order to protectthemselves against dangers that might arise from others who are present in the home.Elements:

1. a lawful arrest.

2.

occurring in a home.3. reasonable suspicion of the presence of person posing a danger to those on the arrest scene.

The authority to sweep is limited in at least three ways :

1. Search limited to only areas to which their reasonable suspicion extends.

If grounds to believe the dangerous person is in the basement, the 2nd floor is outside the scope2. Extends only to a cursory inspection of those spaces where a person may be found.Cant look in spaces too small for a person; must stop once learning that no person is present.

3. Last no longer than is necessary to dispel the reasonable suspicion of danger and no longerthan it takes to complete the arrest and depart the premises.Not permitted to conduct a sweep if reasonable suspicion arises only after an unreasonable delay

in completing the process of arresting the individual and leaving the home.

VII. SEARCHES AND SEIZURES PRIMARILY

CONDUCTED FOR NON-CRIMINAL PURPOSES:

SPECIAL NEEDS

SPECIAL NEEDS another exception to both the warrant and PC requirements; they are cases

without the requirement of particularized suspicion of misconduct.

applies when (NJ v. TLO)- special governmental needs make the warrant impracticable;

- govt interest outweighs the intrusion;- an immediate objective of the search is one other than to generate evidence for law

enforcement purposes "FEW,WELL ARTICULATED EXCEPTIONS" referred to in reference to the Per Se Rule, and it applies to:

1. Stops & Frisks2. Stops & Frisks of Persons

3. Frisks of Cars and Drivers

4. Frisks of Houses

5. Detentions for Questioning by Police Officers

6. Border Entries

7. Children in School

8. Drug Couriers and Traffickers

9. Public Employees in theWork Place

10. Operators of Public Transportation Mechanisms

FOR EXAMS: Fit the scenario into one of the existing situations above and give the rationale behind in

that the Supreme Court has already reasoned. State why the Supreme Court reasoning applies to thesituation or does not apply to the situation. Still need to address whether cops conduct was reasonable.


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SCHOOL SEARCHESRULE: Properly limited searches of students can be reasonable w/o a warrant or probable cause.

Public School faculty may search students w/o a warrant if:

1) Reasonable grounds (not PC) for suspecting that the search will turn up evidence

that the student has violated either the law or school rules

2) The search is not excessively intrusive in light of the students age and sex and natureof the suspected violation

EX: TLO was believed to smoke, so there were reasonable grounds that she had some with her.

RATIONALE: Because of the special relationship between officials and their students and the

special need to maintain order and control in schools.

Scope of an authorized school search:

1. must be performed in the school setting.2. May search her person and all belongings carried at the time of the search.

3. Must not be excessively intrusive in light of the age, sex, and nature of the infraction.4. Limited to places where the object that is basis of reasonable suspicion could be

LIMITATIONS:School Official Requirement Only Teachers & administrators may perform them, not PO!MUST be acting in the interest of the school (to serve the objectives of the educational system)School officials acting in conjunction with or at the behest ofPO are NOT authorized

SPECIAL SITUATIONS: Random searches of schoolchildren (no individualized suspicion)A random search is reasonable when:

1. The intrusion is limited2. Theres a weighty interest beyond ordinary law enforcement being served.

3. Searching official is deprived of discretion to select the individuals to be searched.

CHECKPOINTS OR ROADBLOCKSA fourth amendment seizure occurs when a vehicle is stopped at a checkpoint.

RULE: In certain circumstances, seizures effected at traffic checkpoints are reasonable even though

officers possess no individualized suspicion with respect to the person seized.

Random seizures at either permanent or temporary checkpoints can be constitutional.y Permanent Checkpoints designed to detect illegal aliens are constitutional

y Temporary Checkpoints conducted to detect drunk drivers was reasonable

RATIONALE: a driver stopped at a checkpoint is seized because the infringement on her

liberty is brief and modest. [MICHIGAN v. SITZ]Court justified these stops because they were minimal (because)

1. Other motorists were being stopped

2. There are visible signs of police officers authority


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3 CRITERIA FOR JUDGIN CONSTITUTIONALITY OF CHECKPOINTS:

1. Magnitude of the Seizure The intrusion on the liberty interests of the detained motorist must be

limited or minimal Measured both objectively and subjectively.

1. ObjectiveMagnitude Measured by the duration of the seizure and the intensity of the

investigation.2. SubjectiveMagnitude Measured by a checkpoints potential to generate fear and surprise in

motorists. (This potential can be diminished by (1) visible signs of the officers authority, (2) thefact that other motorists are being stopped, and (3) restrictions on POs discretion to select the siteof the checkpoint.)

2. Nature of the Interest Served by the Checkpoint Its arguable that random stops at checkpoints are

neverreasonable UNLESS the interest being served qualifies as important or serious.

y In SITZ, the government interests were preventing drunk driving and roadway safety.

y HOWEVER, general crime fighting objectives such as:

a.To detect evidence of ordinary criminal wrongdoing (like narcotics detection)b.To serve the general interest of crime control ORc.For the ordinary enterprise of investigating crimes

are not permitted; For those, there must be some individualized suspicion to justify a stop.

3. Need for Suspicionless Stops & effectiveness of the Checkpoint Government does not have to

prove that the checkpoint intrusions were more effective than less intrusive, suspicion-based stops.

DRUG TESTINGRULE: In limited circumstances, drug and alcohol testing of public employees and students, in

the absence of a search warrant and individualized suspicion, may be constitutional. Random, suspicionless drug testing is allowed in three circumstances:

Drug tests for railway involved in train accidents or who violate safety rules. SKINNERDrug tests for Customs officials involved in drug interdiction or carrying gun.VONRAABfor high school students voluntarily involved in interscholastic athletics where there was

evidence of a drug problem in the school district. VERONIA SCHOOL DISTRICT

RATIONALE: Drug testing is a fourth amendment search, but because of the manner of

administration, the intrusion is relatively minor. Factors finding drug testing reasonable:1. Main purpose is not to get criminal evidence

2. Reduced EOP (Schools and highly regulated jobs)3. Important governmental interests are jeopardized

4. A regime based on individualized suspicion would have been impracticable5. Evidence of a substantial need for random testing

6. Dignity of people is protected during the specimen collection

DISAPPROVED TESTING:InCHANDLER v. MILLER, the court ruled that proof of a substantial specialneed was missing and thus, such a test cannot override the privacy interest of the candidates.

Drug Tests have been found not to pass the special needs test where:

1) Testing was not in response to any suspicion of drug use by target group (Chandler)2) The immediate objective of the testing was to generate evidence for law enforcement purposes


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VIII. ELEVATED STANDARDS FOR 4TH AMENDMENT

REASONABLENESSA particular search or seizure may require more than probable cause and a search warrant

DEADLY FORCEThe use of deadly force to apprehend a suspect is a 4th amendment seizure

RULE:Deadly force may be used ONLY when it is necessary to apprehend a limited category of

suspects who pose risks of serious physical harm.

Caveat: If an untouched suspect flees from the use of deadly force there is no 4th Amen activity and

therefore no possible 4th Amen violation.

In some cases, a warning is also a prerequisite to the use of deadly force.

Deadly Force DEFINED: Force which the actor uses with the purpose of causing or which he knows to

create a substantial risk of causing death or serious bodily injury. DEADLY FORCE IS REASONABLE IF:

1. Suspect threatens PO with a weapon.2. Probable cause to believe he committed a crime involving serious physical harm.3. A warning has been given where feasible.4. A Necessity to prevent escape.5. Last resort.

EX: Cant use deadly force to stop ( stealing an expensive car even if doing so is necessary to prevent his escape.

INTRUSIONS ON THE HUMAN BODY

RULE:D

rawing blood or performing surgery may be more intrusive than a normal full search. Evaluation of the intrusiveness of such a search is case specific taking into account thethreat to privacy, dignity, and health interests.

If intrusion is extensive/substantial, need greater proof than normal 4th Amen standards

MAGNITUDE OF THE INTRUSION: Threats to Privacy, Dignity and Health

Can be more intrusive than ordinary searches in three respects:1. The nature of the information revealed might be more intimate or private2. A bodily intrusion can infringe on dignitary interests in personal privacy and bodily integrity3. May threaten safety or health & may even endanger the life of the individual.

REQUIREMENTS: There is no bright-line rule regarding the reasonableness of a search that

probes below someones skin. If its extensive orsubstantial intrudes on constitutional interests more than an ordinary

search then need a more substantial justification,perhaps a compelling need.

But, PC & warrant is sufficient if search poses no threat to (s health & isnt intrusive.


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NEWSROOM SEARCHES & NIGHTTIME SEARChRULE: Court rejected the claim that the newsroom search was sufficiently more intrusive torequire heightened 4

thAmendment standards and held that the probable cause and search warrant

norms governed.

RULE: Court has not yet decided whether the standards for nighttime residential searches are moredemanding that the 4

thAmendment norms.

GOODING v. UNITED STATESSearches of private dwellings during nighttimehours arguably pose greater threats to personal privacy. A resident might be found in

a state of undress or might be engaged in intimate activities.

IX. DUE PROCESS CLAUSE: Regulation of ConfessionsNo state shall make or enforce any law, which shall deprive any person of life, liberty, or property,without due process of law.

The 5th Amendment imposes the PRIVELEGE AGAINST SELF-INCRIMINATION, whichprovides that no person shall be compelled in any criminal case to be a witness against himself.

TRIGGERING OF THE DUE PROCESS VIOLATION: A person is denied due process oflaw if an involuntary statement (i.e. a statement obtained as the result of undue police pressure) is used

against him at a criminal trial.

Unclear whether the coercive methods themselves violate the due process rights of the individual.

COMMON LAW RULE: A confession forced from the mind by the flattery of hope, or the torture of fear,

comes in so questionable a shape when it is to be considered as evidence of guilt, that no credit ought to be givento it; and therefore it is rejected.Based on the untrustworthiness of the confession.

RATIONALES: Admission of a coerced confession violates due process because

a. Involuntary Confessions Are UnreliableIn an effort to escape undue pressure; an individualmay make statements that could lead to the conviction of an innocent person.

Such erroneous convictions would offend substantive due process because they are untrustworthy.b. It Assures Fair Play by the Government: The use of coercion to extract a statement and secure a

conviction offends an underlying principle in the enforcement of our criminal law: that ours is anaccusatorial and not an inquisitorial system.c. Deters Use of Unacceptable Police Conduct Resulting in Coercion This reduces the chance thata coerced confession will go undetected and result in an unjust conviction & can reduce the personal

harms inflicted by the coercion itself.

DUE PROCESS DOCTRINE: Prohibits confessions coerced by government officials. The determination of which confessions violate due process must be based on the totality ofrelevant

circumstances including both external pressures and internal weaknesses.


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COERCED CONFESSION LAW: GENERAL PRINCIPLES

GENERAL RULE (SPANO v. NY): a statement obtained involuntarily from a suspect, by a law

enforcement agent, is inadmissible against him in a state criminal trial pursuant to the 14 th Amen DP

clause and the 5th amendment. Involuntariness is determined by the totality of the circumstances.

REQUIREMENTS: (Colorado v. Conenlly): in order to exclude a confession on due process

grounds, there must be a causal link between 1) coercive activity of the state resulting

confession by ( Thus, Due Process is NOT violated UNLESS the source of the coercion is a state agent.COLORADO v. CONNELLY A psychotic man told PO that he had killed a woman because the voice of godtold him he must either confess the killing or commit suicide. These commanded hallucinations impaired his

volitional abilities and interfered with his ability to make free and rational choices. Nonetheless, the confession

was not prohibited by due process because the officer to whom he confessed used no coercion whatsoever.

INHERENTLY COERCIVE SITUATIONS: Some actions in certain settings can generate somuch pressure to confess that they are deemed inherently coercive.No examination of particular attributes of the person is needed in such situations to prove a violation.

EXAMPLES:

d.Physical brutality or torture

Psychological pressures that subject an individual to mental torture

VOLUNTARINESS OF A CONFESSION IS BASED ON: Totality of Circumstances

Totality of the Circumstances Approach The relevant factors include:1. External Pressures

yThe tactics and practices used by the police and the setting in which they are used.

yEX: Threatened or actual use of violence, or even a lawful threat to inflict violence

ASHCRAFT v. TENNESSEE Officials conducted a 36-hour uninterrupted and incommunicado custodialinterrogation by using relays of interrogators. The subject of the interrogation, a man whose wife had been

murdered, had no sleep or rest during the period.Majority ruled that the situation was so inherently coercive that its

very existence was irreconcilable with the possession of mental freedom by a lone suspect against whom its full

coercive force was brought to bear.

2. Internal Attributes

yAny permanent or transient variables that indicate either weakness or strength of will.

MINCEY v. ARIZONADetective questioned ( in the ICU. Lying on his back in a bed, the repeatedlyexpressed his wish not to be interrogated. The detective nevertheless continued to question him. Unable to speak,

responded to questions by writing answers on pieces of paper. Court concluded that the undisputed evidence makes

clear that wanted not to answer the detective, but that weakened b pain and shock, isolated from family, friendsand legal counsel, and barely conscious . . . his will was simply overborne.

3. Personalcharacteristics

yForeign born, no experience with PO interrogation, little education, emotional instability.

4. Promises and deception or trickery by government agents.

yA factor in the totality of circumstances bearing on involuntariness of a confession.


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SPANO v. NEW YORKThe Court relied, in part, on the fact that an officer who was an acquaintance of thesuspect made false representation to the effect that the suspects telephone call had gotten the officer into trouble,

and his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife, and his

unborn child. This deceptive effort at gaining sympathy added to the other pressuresbrought to bear and

contributed to a finding that the suspects confession was involuntary. Thirty-six hours of continuous

interrogation is so inherently coercive that any confession it produces is presumed involuntary.

When should a threat of prosecution be viewed as objectively coercive? One issue is whether the threat islegitimate (in the sense that the police have lawful authority to carry it out) as opposed to one that is false orillusory (e.g. as in Spano).

It is likely there is a threshold level of coercion necessary to trigger due process concern. No matter how vulnerable the suspect, that amount of official coercion would still be essential

The exact amount of coercion needed to satisfy the threshold requirement is far from clear.

X. 5th AMENDMENT: PRIVILEDGE AGAINST SELF-

INCRIMINATIONS

The 5th

Amendment has two protections:1. Self-incrimination2. Due process

Due processprevents only coercion that overbears the will of an individual,WHEREAS

The 5th amendment seeks to insure that a confession is truly the product of an individuals free will

Rule: (Miranda): any statement obtained as the result of a custodial interrogation could not be used

against the suspect in a criminal trial unless the police provided procedural safeguards effective tosecure the suspects privilege against compulsory self-incrimination. Under the 5th Amendment, any

statement given in custodial interrogation is presumed to be coerced UNLESS the suspect has been

given the Miranda warnings, and after being warned, makes a valid waiver of those rights.

custodial interrogation creates a presumption of compulsion

Majoritys Reasoning states that because compulsion is inherentin custodialinterrogation

settings, statements made in these settings cannot truly be the product of free choice The use of such

statements to obtain convictions would violate the 5 th Amen UNLESS adequate protective devices areemployed to dispel the compulsion inherent in custodial surroundings, statements obtained from suspects

are not admissible at trial.

Facts: 4 case in one, but similar in that:

1) all (s were in custody; 2) questioned in an interrogation room; 3)PO dominated environment,

individual (; 4) ( never informed of 5th Amen right

RationaleforMiranda:yWarnings, or other equally effective procedures, are necessary to dispel the compulsion inherent

in custodial interrogation.

y The prophylactic Miranda warnings are not themselves rights protected by the Constitution, but areinstead measures to insure that the right against compulsory self-incrimination is protected.

yIn other words, obtaining a statement in violation of Miranda is not by itself an actionableconstitutional violation; the violation does not become complete until a compelled incriminating

statement is used at trial.


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ELEMENTS OFMIRANDA Applicability to All Crimes: a suspect is entitled to the procedural safeguards enumerated in Mirandaregardless of the nature or severity of the offense of which he is suspected or for which he is arrested.

1. CUSTODY Rule: Miranda warnings prior to questioning are required only whenthere has been such a restriction on persons freedom as to render him in custody.

custody ONLY IFsubjected to eitherformal arrest OR its functional equivalent.A. Formal Arrest: explicitly told that she is being placed under arrest.

B. Fundamental Equivalent: suspects freedom is curtailed to a degree associated with aformal arrest ORis subjected to restraints comparable to those associated with one.

TEST: Must examine circumstances surrounding the interrogation to determine whether a person is incustody (inquiry done from perspective of reasonable person in suspects position BERKEMER) Must be informed by particular relevant characteristics of the individual suspect at least those thatofficers know and perhaps those they shouldknow. (i.e. tards)

Two Step analysis (Berkemer):

1) what were the circumstances of the interrogation?

2) Given this, would a reasonable person have felt he not at liberty to terminate and leave?

NOTE: A suspect can be in custody even not in a police station (Berkemer); by the same token, the factthat a person is in a police station does not necessarily mean that she is in custody.

EX: OREGON v.MATHIASON Suspect came voluntarily to the police station.

Yarborough: majority found a 17 year old was not in custody because 1) PO didnt transport him to

station; 2) parents were in lobby (indicated short span); 3) focus of Qs were on different people; 4) didnt

threaten arrest, appealed for his help; 5) offered to take breaks; 6) went hom; 7) Age and lack ofexperence with law enforcement is irrelevant

POs suspicians are not relevant for the test of custody

The unexpressed intent to arrest will not support a custody finding; by the same token, the absence ofintent to arrest will not militate against a finding of custody.

A lesser infringement on liberty, such as a traffic stop or Terry detention, does not constitute custody.

RATIONALES:

y Presumptively brief and temporary.

y In a typical traffic stop, suspect doesnt feel self to be at the complete mercy of the police.

y Noncoercive aspect to ordinary traffic stops.

2. INTERROGATION:What Police Conduct Constitutes an Interrogation?RULE: interrogation refers to eitherexpress questioning OR its functional equivalent. Functional

Equivalent is any words/actions by PO, other than standard for arrest and custody, that should knoware reasonably likely to elicit an incriminating response. (Innis)

TEST: Focus is mostly on the perception of the suspect, but PO intent is not irrelevant b/c it mayhave a bearing on whether the PO should have known that his conduct was reasonably likely to elicit

an incriminating response.


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FACTORS: in determining whetherPO should have known actions were reasonably likely to elicit anincriminating response1.Knowledge of the unusual susceptibility of the suspect to a particular form or persuasion2.Knowledge ofother characteristics that could make a suspect more likely to respond.3.Individual traits that officers neither know or should know are NOT RELEVANT.

Interrogation must be conducted by state agent who is known to ( to be a state agent

EX: Express questions by undercover government agents are not within the scope ofMiranda (Perkins)

Caveat: If an undercover state agent uses actual coercion to obtain a statement, that statement is barredby both theDue Process Clause and the privilege against compulsory self-incrimination.

Distinguished from HOFFA person plants as an undercover agent to elicit information from him while the trialis underway NO information he gave to the informant on the issue of jury tampering during his trial, were a

separate criminal act outside the crimes of his trial Court said it was not a violation of 6th

amen right to counsel.

3. ADEQUACY:Were the warnings given adequately? Although the warnings must always be given, they need not be given in exact language prescribedin MIRANDA so long as they reasonably convey the rights expressed in the four warnings.

y TEST: whether a reasonable person would hear the same essential messages1) right to remain silent2) any statements will be used as evidence

3) right to an attorney during questions4) right to a court appointed attorney, if poor

4.WAIVER:What is required for a ValidWaiver?The government has burden of proving that suspect made a knowing and voluntarywaiver of theMIRANDA entitlements. The suspect must understand the nature and character of the rights and thatthe decision to relinquish the rights is a product of the suspects choice.

TRIGGER: After adequate warnings are delivered,P

O must secure a valid waiver from suspect.RULE: A waiverrequires:

1) a knowing (knowledge of the nature and consequences of rights being waived)i. waiver cant be considered voluntary unless we have Miranda rightsii. Suspect must understand that he has a right to silence and any statement made

will be used against him as a consequence of waiving his rights.

iii. It is not required that the suspect know and understand every possibleconsequence of waiver, and need not be told the subject of interrogation.

iv. Suspect does not need to know all of the crimes that he is being questioned about.

2) and voluntary relinquishment. (Intent)

i. a free and deliberate decision, absent from coercion/deceptionii. If no official coercion, the waiver is voluntary.

iii. TEST: The voluntary character of waiver of Miranda rights is tested by the samestandard used to determine whether a confession is voluntary under due process

(Totality of the Circumstances)

Waiver Requirement: Can either be:1. An express oral OR written statement (NOT Required)2. Examined by a totality of relevant circumstances, through the suspects actions and words.


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yTEST: (NC v Butler) Basis from which it can clearly be inferred that suspect wished to

relinquish his rights.

yMere silence in the face of warnings cannot prove a waiver, but silence, coupled with an understandingof rights and a course of conduct indicating waiver, can support a finding; and express, in TOC, may not be enough.

y EXAM TIP: If the waiver is not knowing and voluntary, then do a due process orcoercion analysis.

NORTH CAROLINA v. BUTLERThe requirement of knowing and voluntary waiver can be met in the

absence of an express waiver, based on the totality of the circumstances.

COLORADO v. SPRING Court upheld a waiver by a suspect who was not aware of all the crimes thatwere to be subject of official questioning. Court held it was knowing and voluntary, even though he was not

all aware of all the consequences of his waiver.

5. INVOCATION OF RIGHTS:What are the consequences of invocation?1. Right to remain silent?

2. Right to counsel?

Right to Remain Silent Once warning are given, if suspect indicates that he wishes toremain silent, the interrogation must cease; suspect must express a desire not to speak with authorities

yCourt has held that only a clear request for counsel qualifies as for the MIRANDA element

SAFEGUARD TRIGGERS: If the suspect indicates in any manner, at any time prior orduring questioning, that he wishes to remain silent, the interrogation must cease.

y Otherwise they will be in violation of Miranda.

y interrogation may resume ifPO scrupulously honor the suspects right to cut off questioning.

y Authorities must respect a persons exercise of the option to terminate questioning.

y If officers scrupulously honor the invocation of the right to remain silent and then obtain a

valid waiver, statements made in response to custodial interrogation will be admissible.MICHIGANv. MOSLEYheld that suspects right to cut off questioning is satisfied if the police scrupulouslyhonor his right to silence after he asserts the privilege. In this case, the cut off questioning but two hourslater was questioned again (after being read his Miranda rights again AND signing a waiver form) court heldthat since his 5th Amen rights were honored, the 2nd questioning didnt violate his rights.

HAVE OFFICERS HONORED SUSPECTS RIGHTS: FACTORS: (Totality of Circumstances Test)

1. Passage of sufficient timebetween the invocation and resumption of interrogation:

If there is no more than a momentary respite or cessation of interrogation before PO attempts torestart the interrogation session, the right to cut off questioning has NOT been scrupulously honored.

No waiver can be considered valid; statements that are product of interrogation will be inadmissible.

While an interval of more than two hours is sufficient, the minimum amount of time is not clear.

2. The longer the time between questioning the better.3. Subject matter of the resumed interrogation:

After a suspect invokes his right to silence, the authorities might resume interrogation about adifferent crime from the one that was the subject of the initial interrogation.

Different subject matter is better.

4. Different locations, different officers, and the delivery of fresh Miranda warnings: Invocation occurred in one place while resumption occurred in a different place.The assertion of silence was made to one officer and resumption was by a different oneA second set of Miranda warnings was given prior to the resumption.


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Right to CounselRULE: EDWARDS v. ARIZONARULEwhen a suspect invokes his rights under Miranda to consultwith an attorney prior to interrogation, the suspect is not subject to any further interrogation by the

authorities until counsel has been made available to him, UNLESS the accused himself initiates furthercommunication, exchanges, or conversation with the police.

The rule is very strict

it bars police initiated interrogation, EV

EN regarding offenses unrelated tothe subject of the original interrogation.In EDWARDS v. ARIZONA, the police read his Miranda rights. Although originally agreed to talk,he later told police I want an attorney before making a deal. Interrogation ceased and was taken to a

jail cell. The next morning, 2 officers came to the cell to resume questioning. When said that he did notwant to talk, the jail guard said he had to. The officers informed him of his Miranda rights again and agreed to answer questions. RULING: SC ruled that once invoked his rights, questioning should have ceased.

APPLICATION OF RULE: To invoke the Miranda entitlement, a suspects request for counsel mustbe clear and unambiguous.

yA suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request for an attorney. TEST For Waiver Knowing and intelligent relinquishment of a known right (higher standard)

TEST ForAdequacy of WaiverMust be sufficiently clear that a reasonable police officer in thecircumstances would understand the statement to be a request an attorney.

InMINNICK v. MISSISSIPPI, the court announced that once a suspect in custody invokes his Miranda right tocounsel, the police MUST not only permit the suspect to consult with an attorney, but they may not re-initiatequestioning UNLESS COUNSEL IS PRESENT. Why? Because even after advice, it may still be coercive.

PURPOSE: To prevent police from badgering a into waiving his previously asserted Miranda rights. The EDWARDSRULE is intended to enforce Miranda (double poleaxes).

TRIGGER: Once a person in custody requests counsel, it is as if a protective shield surrounds

him. The police may not interrogate the suspect further about any crime UNLESS:1) The s lawyer is present and a valid waiver is obtained, or2) The initiates further communication, exchanges, or conversations with the police that

could be interepreted as a desire to discuss the case, and then the PO get a valid waiver If neither of these conditions is satisfied, no waiver can be valid and any statements that are the product ofcustodial interrogation will be presumed to be compelled.

Does his invocation of hisright to counsel amount to the same thing as the invocation of the right to remain silent?NO. Once he has invoked his right to counsel, the interrogation MUST CEASE different from invoking theright to remain silent, where interrogation can continue (reasonably), but the suspect does not have to respond. With the right to counsel, the interrogation MUST cease or it is a violation of the suspects contractual rights.

Attorney MUST be present for ALL questioning after right to counsel has been requested

assistance of counsel is a device to protect against the compelling atmosphereofcustodial interrogation. If a suspect expresses the need for counsels assistance, the presence of counsel to assist the suspect duringcustodial interrogation will furnish sufficient protection to satisfy the fifth amendment.

WHEN THE EDWARDS RULE DOES NOT APPLY:1. The EDWARDS rule does not apply unless a suspect unambiguously asserts his right to counsel.

2. If a suspect ambiguously or equivocally asserts hisMiranda right to counsel, the police mayignore the remark and continue the interrogation. such a statement does not qualify as an

assertion of the right to counsel. DAVIS v. UNITED STATES


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EFFECT: In the instance of deliberate elicitation of incriminating statements made after criminaladversarial proceedings have commenced against the accused, the government eitherMUST:

1. Reveal its presence [to the accused] and afford the opportunity to consult with counsel, OR2. To suffer at trial the exclusion of the product of its adversarial encounter with the accused.

TRIGGER:P

rior to the first formal charging proceeding, an individual is not an accused, and hasno constitutional right to the assistance of counsel.

EX: A formal charge, preliminary hearing, indictment, information, or assignment

PURPOSE: to give adversarial assistance and to allow the lawyer to serve as the guardian of thefortress once adversarial proceedings have commenced. State cannot take away a persons liberty or property without due process of law, which requires an attorney.

OFFENSE-SPECIFIC: RULE: 6th Amen doesnt necessarily extend to offenses that are factually

related to those that have been actually charged. The 6th

Amen is offense specific; that is, theinterrogation that is the subject of the 6

thAmen inquiry must relate to the crime for which the

criminal proceedings have commenced.

The issue is NOT simply whether formal judicial proceedings have commenced against the accused,BUT whether such proceedings have commenced in regard to the offense that is the basis of the

interrogation or covert elicitation.

DELIBERATE ELICITATION vs. INTERROGATION: (NOT INTERCHANGEABLE)Deliberate Elicitation: occurs when the govt, through its overt or covert police agent, either

1) acts with the purpose of eliciting incriminating information from the accused regarding, ora. formal interrogation

b. undercoverPO engages ( in a convo about the criminal activityc. statements by PO designed to play on the conscience of the accused

2) creates an opportunity for accused to make incriminating statements about pending charges :

a. govt creates a situation likely to induce ( to make incriminating statements (Henry)

FACTORS (for Deliberate Elicitation):1. Intent to elicit inculpatory information

2. Affirmative, direct questioning some action merely beyond listening

3. Both direct elicitationby a known government agent and covert elicitation fall under scope ofMassiah.

ForUNDERCOVER AGENTS: when agents intended, knew, or should have known, that their acts

would likely elicit information TEST for GOVERNMENT AGENTS:Whether the person is acting for at the request of the government.

UNITED STATES v. HENRY: FBI placed a paid informant in the jail cell with and told him to listen for anystatements by but not to engage in conversation. Court ruled that the government violated the s 6th amendment

right by intentionally creating a situation likely to induce the accused to make incriminating statements.

EX: Purposeful elicitation occurs when PO formally interrogates accused ORwhen undercoverPO engages accusedin a convo in order to obtain incriminating comments (Massiah) ORthe 6

thamendment is triggered when PO makes

statements designed to play on the conscious of accused in order to induce incriminating remarks (Williams)

BREWER v.WILLIAMS: PO elicited statements during long drive from religious mental accused of murder, &

represented by counsel, resulting in body being found. had already been arraigned. State said ( waived right tocounsel, but SC disagreed, reasoning waiver requires intentional relinquishment/abandonment. Record reflected that

( consulted with his lawyers, but they werent present at time of the confession so he did not make a valid waiver.


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Differences BetweenMiranda andMassiah

FACTORS MIRANDA MASSIAHBASIS Based solely on the privilege

against self-incriminationBased solely on the right tocounsel

CUSTODY REQUIRES Custody DOES NOT REQUIRE custodyINTERROGATION CUSTODIAL

INTERROGATION

POST-INDICTMENT

INTERROGATION

FORMAL CHARGES DOESNT REQUIRE formalcharges, just needs custody or

an arrest.

REQUIRES the initiation of

formal adversary proceedings.

INTERROGATION AND

DELIBERATEELICITATION

yThe applicability ofMiranda

hinges on interrogation

yMiranda does not apply to

spontaneous, voluntary

unsolicited confessions

WhileMassiah is satisfied by

interrogation, it requires onlydeliberate elicitation

RESUMINGINTERROGATION

Only valid if INITIATES;

otherwise its a violation

DOES NOTMATTER whoINITIATED; always a violation.

UNDERCOVER AGENTS

Miranda does not apply toactivities by unknown

government agents.

Massiah does not governdeliberate elicitation by such

agents.

INVOCATION OF

COUNSELUnder BOTH doctrines, when a

suspect effectively invokes

counsel, a waiver cannot be

valid unless the suspect or

accused initiates further

communications.

yInMiranda a suspects

request for counsel must be

clear and unambiguous.

yOnce is in custody,

MUST be advised of his right tocounsel

yA general request for counsel

during a courtroom

appearance constitutes an

invocation under Massiah.

y has the right to counsel,when the police seek to

interrogate him

WAIVERThe entitlements under BOTH

doctrines can be waivedKNOWINGLY AND

VOLUNTARY.

The information in the

Miranda warnings is generally

sufficient knowledge for validwaiver under either doctrine.

The waiver of the Massiah right

may require that know that

he has been charged and doesrequire that he be aware if his

attorney has tried to contacthim.

4 BASES TO EXCLUDE STATEMENTS AND CONFESSIONSAPPROACH CONSTITUTIONAL BASIS

(1) Voluntariness Approach To beadmissible, a statement MUST be voluntarily made

based on the totality of the circumstances

Due Process Clause of the 5th and 14th

Amendments

(2)Miranda Standard statements made duringcustodial interrogation are inadmissible in the

absence of Miranda warnings

5th Amendment Privilege Against

Self-Incrimination

(3) Right to Counsel Approach statementsmade during any critical stage of a criminal

proceeding are inadmissible unless the is afforded

the right to counsel.

6th Amendment Right to Counsel


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LIMITATIONS on EXCLUSIONA

Documents

Benji.outline.crim Pro Garland Spring 2009