Crim Pro i Outline

8/8/2019 Crim Pro i Outline

http://slidepdf.com/reader/full/crim-pro-i-outline 1/35

• Important Procedural Steps in Criminal Justice Systemo 1) The Crime

o 2) The reported crime

o 3) Pre-arrest Investigation

On-Scene Investigation

• Stop and frisk

• Border searches

Reactive Investigations Proactive Investigations Prosecutorial Investigations

o 4) Arrest

Search incident to arrest Plain view seizures Inventory searches Consent searches

o 5) Booking

o 6) Post-Arrest Investigations

Search warrants Warrantless searches Right against self-incrimination Request of Counsel

o 7) The decision to charge

Investigator screening Prosecutor screening (pre-filing)

o 8) Filing of complaint

Prosecutor screening (post filing of complaint) Magistrate/district judge review of the arrest warrant and proposed complai Note: A prosecutor now decides whether there is enough evidence to file

charges; if so, the prosecutor prepares a “complaint.”o 9) First appearance on the complaint

An arrested person must be taken without unnecessary delay (within 24 houbefore a judicial officer for a hearing (arraignment on a warrant, initialarraignment, etc.)

Arrestee Receives:

• Formal notice of charges against her

• Constitutional rights in the impending prosecution are explained to heo Right to counsel

• Sets bail or releases D without bail

• Date is set for preliminary hearing Arrestee is poor & not represented by counsel:

• A lawyer is appointed for her @ this time Arrestee arrested without warrant:

• Probable cause determination is usually made @ 1st appearance Magistrate determines if the arrestee should be set free on her own

recognizance, released on bail, or detained pending further proceedings POSSIBLE ISSUES:

• Right to counsel issues

• Detention/bond issues

o 10) Preliminary hearing (the probable cause hearing)



D is constitutionally entitled to representation by counsel Most jurisdictions held w/in 2 weeks after the arrestee’s initial appearanc

b/4 magistrate, unless the D waives the hearing Primary purpose is to determine whether there is p/c to believe that a crimi

offense has occurred & that the arrestee committed it Prosecutor & D can call on witnesses & cross examine adverse witnesses Many jurisdictions permit

•

Introduction of hearsay• Evidenced obtained unconstitutionally (although such evidence is usu

inadmissible @ trial) TWO TYPES OF JURISDICTIONS

• Indictment Jurisdictions (Federal System)o Definition: A state where the D ordinarily cannot be brought to t

unless she is indicted by a grand juryo If grand jury doesn’t indict the D, she must be released (even if

magistrate in a prelim haring determined there was p/c)o Federal System:

Prelim haring not held if D is indicted b/4 the date set for

prelim hearing• Information Jurisdictions

o Definition: A state where an indictment by a grand jury is notrequired

o Once the magistrate determines there is sufficient evidence to over the D to trial, prosecutor files an “information” w/ the court

Information a document stating the charges against theand the essential facts relating to them

• Replaces the complaint as the formal chargingdocument

o If the magistrate doesn’t find sufficient evidence to bind over ththe complaint is dismissed & D is discharged If D is discharged, the prosecutor has 3 options if she wan

proceed with the dismissed case:

• File a new complaint, prosecutor can start anew

• (in some states) may appeal the magistrate’s dismito the trial ct. AND/OR

• (In some circumstances) permitted to seek anindictment from a grand jury

o 11) Grand Jury Proceedings

In Indictment jurisdictions, a person may not be brought to trial for a seriousoffense unless she is indicted by a grand jury or waives her right to a grand hearing.

The purpose of a grand jury is to stand “between the accuser and the accus(in order) to determine whether a charge is founded upon reason or wasdictated by an intimidating power or by malice and personal ill will.”

5th Amendment in federal prosecutions, “no person shall be held to answefor a capital, or otherwise infamous crime (encompasses all felonyprosecutions), unless on a(n)…indictment of a Grand Jury….”

A grand jury proceeding may not in fact shield an innocent person as well aspreliminary hearing.



• 1) The person targeted for the indictment, is not permitted to be presduring the grand jury proceedings (except if and when she is called aswitness).

o Only the grand jurors, prosecutor, the witness, and a transcribethe proceedings, is present in the jury room during the hearing.

• 2) Witnesses, including the putative defendant, do not have aconstitutional right to have counsel present while they testify b/4 thegrand jury.

• 3) No judge is present during the proceedings. Rules of evidence do apply.

o An indictment is not invalid even if it is based solely on inadmishearsay evidence or unconstitutionally obtained information.

• 4) Prosecutor is not required to disclose to the grand jurors evidence her custody that might exculpate the putative defendant.

Upon conclusion of the prosecutor’s presentation of her case, the grand jurodeliberate privately.

• If a majority of them determine that sufficient evidence was introducethe prosecutor, the jury issues an indictment (a document that states

charges and the relevant facts relating to them).• If the jury does not vote to indict the D, the complaint issued against t

D is dismissed and she is discharged.o 12) Filing indictment or information

In the federal system, or in a ‘grand jury” state, the next step is for a grand to hear the prosecutor’s evidence and to issue an indictment.

In a non-grand jury state, the prosecutor now prepares an “information,”reciting the charges.

o 13) Arraignment on information or indictment

If an indictment or information is filed, the D is arraigned in open court. 2/3 of cases are resolved by pleas at this stage @ Arraignment:

• D’s counsel is permitted to be present

• Accused is provided with a copy of the indictment or information (aftewhich she enters a plea to the offenses charged in it)

• D may plead:o not guiltyo guiltyo nolo contendere

“I will not contest the charge” This plea is treated as a guilty plea

o not guilty by reason of insanity (in some states)o 14) Plea Hearing See above on types of pleas D can pleado 15) Pretrial motions

More than ¾ of cases in this class involved a pretrial motion to suppress At stake: whether evidence will be suppressed Guarantee: This will be the basis of an exam question

After arraignment, the D may make various pretrial motions.

• Among the defenses, objections, and requests that often are raised prto trial are:

o That the indictment or information is defective, in that it fails to

allege an essential element of the crime charged, or that it fails



give the D sufficient notice of the facts relating to the chargeagainst her

Rule 12(b)(2)o That the venue of the prosecution is improper or inconvenient

Rule 18, 21(a)o that the indictment or information joins offenses or parties in an

improper or prejudicial manner Rule 8, 14

o that evidence in the possession of one of the parties should bedisclosed to the opposing party

Rule 16o that evidence should be suppressed b/c it was obtained in an

unconstitutional mannero that the prosecution is constitutionally barred, such as by the

double jeopardy and/or speedy trial clauses of the constitution

• In some situations, if a D’s pretrial motions are successful the judge wdismiss the charges on her own or on the prosecutor’s motion.

o Rule 48

Prosecutor is trying to get the evidence against the D to come in. (Most of tcases deal with a pretrial motion to suppress the evidence)

o 16) The trial

Right to trial by jury

• If a D does not plead guilty and the charges are not dismissed, a trial held.

• 6th Amendment entitles a D to trial by jury in the prosecution of anyserious, non-petty, offense.

o The right to a jury trial applies, at a minimum, to any offense forwhich the maximum potential punishment is incarceration in ex

of 6 months.o A D who is prosecuted in a single proceeding for multiple pettyoffenses doesn’t have a 6th Amendment right to a jury trial, eventhe aggregate prison terms authorized for the offenses exceedsmonths.

• Trial juries usually consist of 12 persons. A jury as small as 6 in numbare constitutionally permitted.

• Most jurisdictions, the jury verdict to acquit or to convict must beunanimous.

• State laws permitting non-unanimous verdicts have been upheld asconstitutional.

Composition of the jury• 6th Amendment guarantees a D trial by an impartial jury.

o An individual juror isn’t impartial if her state of mind as to anyindividual involved in the trial, or as to the issues involved in thecase, would substantially impair her performance as a juror inaccordance with the law and the court’s instructions.

• The accused is not entitled to a jury that mirrors the community as awhole.

• The accused is entitled to a jury drawn from a pool of persons constitua fair cross-section of the community.





• However the State Supreme Court is permitted notrequired to hear the case. (Except in capital cases)

She may also petition the U.S. Supreme Court to consider case. If her appeal is ultimately successful, she may be reprosecuted.

o 20) Direct Appellate Process to U.S. Supreme Court

Federal:

•

U.S. District Court

U.S. Court of Appeals

Petition for Writ of Certio U.S. Supreme Court State:

• Circuit Court Court of Appeals Application for Leave to Appeal toState Supreme Court Petition for Writ of Certiorari U.S. SupremeCourt

o 21) Post Conviction Remedies – Habeas Corpus for state prisoners (a.k.a

Collateral Review)

Both state and federal prisoners, even after direct appeal, may challenge thconvictions through federal-court habeas corpus procedures.

Habeas Corpus Process for State Prisoners to U.S. Supreme Court

• State:o Circuit Court Court of Appeals Application for Leave to App

to State Supreme Court Petition for Writ of Habeas Corpus, UDistrict Court U.S. Court of Appeals Petition for Writ of Certiorari U.S. Supreme Court

After a D’s appeals are exhausted (once the conviction is final) she may filepetition for a write of habeas corpus in a federal district court, if she believethat her continued incarceration is in violation of the U.S. Constitution or of federal law.

A post conviction habeas corpus proceeding is not part of the criminal appe

process itself. It is a civil action designed to overturn a presumptively valid criminal judgm

• Considered a collateral attack on a criminal conviction Purpose of a habeas petition: to convince the district (Trial) court that

should compel the warden of the jail or prison holding the petitioner to bringbefore the court so that it can determine whether she is being held in custodagainst the law.

Federal Habeas Corpus Jurisprudence involves intricate rules and recentlegislation makes it difficult for petitioners to obtain a hearing on the meritstheir federal claims.

• If proper allegations are made, the district court may grant the petitioand conduct an evidentiary hearing in the federal claim.

Standards that a petitioner must satisfy to obtain ultimate relief in habeas aoften stricter than those that apply on direct appeals.

• However, if the district court determines that the petitioner is being hin custody in violation of federal law or the constitution, it may vacateconviction.

The ruling of the District court (whether to grant or deny the petition) is subto appeal by the losing party.

FEDERAL CONTROL OF STATE CRIMINAL PROCEDURE AND INDEPENDENT STATE

GROUNDS



• Scope of Federal Control of State Criminal Procedureo Article III, Section 1 – Constitution of the United States

“The judicial power of the United States, shall be vested in one Supreme Coand in such inferior Courts as the Congress may from time to time ordainestablish.”

o Article III, Section 2 – Constitution of the United States

“The judicial Power shall extend to all Cases, in law and Equity, arising undethis Constitution, the laws of the United States…”

o 14th Amendment

Due process clause of 14th Amendment, passed following civil war, provides

• “Nor shall any State deprive any person of life, liberty, or property,without due process of law;…”

UPREME COURT SUPERVISORY AUTHORITY OVER FEDERAL COURTS:

• MCNABB v. United States (1943)o Although statute provided no remedy for violation, the Court exercised its supervi

authority to rule that any confession obtained during unlawful detention winadmissible even if obtained voluntarily.

• United States v. PAYNER (1980) (Powell, J.) The “Briefcase Caper”: How much of tsupervisory authority remains?

o The Supreme Court in interpreting the Constitution sets the floor A state is free to

give their citizens greater protection then what the Supreme Court provides staset the ceiling.

o Law A federal court cannot use its “supervisory powers” to exclude evidence thatdoesn’t violate the Δ’s own 4th amendment rights.

o Reasoning

The interest in deterring illegal searches does not justify the exclusion of taevidence at the instance of a party who was not the victim of the challengedpractices.

The values assigned to the competing interests do not change b/c a court helected to analyze the question under the supervisory power instead of the amendment. In either case, the need to deter the underlying conduct and tdetrimental impact of excluding the evidence remain precisely the same. Tdistrict court’s reasoning, which the 6th circuit affirmed, amounts to asubstitution of individual judgment for the controlling decisions of this courtWere we to accept this use of the supervisory power, we would confer on th judiciary discretionary power to disregard the considered limitations of the

it is charged with enforcing. Dressler

• It stated that it understood the district court’s desire to deter deliberalawless activities by gov’t agents, the court warned that lower courts not permitted to use non-constitutional supervisory law to upset thecareful balance of interests embodied in previous constitutional decis

o Dissent (Justice Marshall)

The court’s holding effectively turns the standing rules created by this courtassertions of 4th amendment violations into a sword to be used by the gov’t permit it deliberately to invade one person’s 4th amendment rights in order obtain evidence against another person.



Doesn’t believe that the federal courts are unable to protect the integrity of judicial system from such gross gov’t misconduct.

Says this approach is totally unfaithful to our prior supervisory power cases,which, contrary to the Court’s suggestion, are not constitutional cases indisguise.

DEPENDENT STATE GROUNDS:

• Michigan v. LONG (1983) (O’Conner, J.)o If states do not want the Supreme Court to come in and review their decisions, th

need to state that their decisions are entirely based upon their own Constitution.(“plain statement”) However, if it violates the U.S. Constitution or goes below thefloor set by the Supreme Court, then the Supreme Court can review their decision

o Reasoning

If the state makes a decision based on some form of federal law, the federawill accept (as the most reasonable explanation) that the state court decidethe case the way it did b/c it believed that federal law required it to do so.

• If a state court chooses merely to rely on federal precedents as it wou

on the precedents of all other jurisdictions, then it need only make cleby a plain statement that the federal cases are being used only for thepurpose of guidance, and do not themselves compel the result that thcourt has reached. In this way, both justice and judicial administratiowill be greatly improved. If the state court decision indicates clearly aexpressly that it is alternatively based on bona fide separate, adequatand independent grounds, we, of course, will not undertake to review decision.

The principle that we will not review judgments of state courts that rest onadequate and independent state grounds is based, in part, on the limitationour own jurisdiction. The jurisdictional concern is that we not render an

advisory opinion, and if the same judgment would be rendered by the statecourt after we corrected its views of federal laws, our review could amount tnothing more than an advisory opinion.

When state courts interpret state law to require more than the federalconstitution requires, the citizens of the state must be aware that they havepower to amend state law to ensure rational law enforcement.

Fourth Amendment:•

Look at the language of the 4

th

amendment:o “The right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures, shall not be violated, and no Warranshall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to beseized.”

• Two Clauses :o Part 1) “Reasonableness” Clause (Reasonableness requiremen

of the 4th Amendment) Tells us what the amendment seeks to prohibit (or, what right we hold again

the gov’t) – this portion of the text states:



• Who is covered (people)

• What is covered (persons, homes, papers, & effects)

• Nature of the protection (to be secure…against unreasonable searcheseizures)

Covers all 4th Amendment contacts

o Part 2) Warrants/Probable Cause clause (ParticularityRequirement)

Relates to warrants Tells us what is required for a warrant to be issued (probable cause {for

search& seizure}, supported by oath or affirmation) and tells us somethingabout the form of the warrant itself (particularly describing the place to besearched, and the persons or things to be seized).

• Great Debate over the 4th Amendment Clauses:o Relates to the connection b/w the “Reasonableness Clause” and the “Warrant Cla

• Language in the first clause limits the 4th amendment to cases actually involvingsearches and seizures of “persons, houses, papers and effects”

EIZURES OF THE PERSON

• 4 DIFFERENT TYPES OF CONTACTSo Consensual Contact

Does not implicate the 4th amendmento Brief Terry-type Stop

Need “reasonable suspicion”o Full Blown arrest/search

Need “probable cause” + warrant or warrant exceptiono Administrative/special needs seizure

Must be “reasonable”

• DEFINITION OF WHEN A SEIZURE OCCURS

o TERRY v. Ohio (1968) (Warren, CJ) this case gives us a physical example of w

a seizure is and when it occurs under the 4th amendment. SEIZURE OF A PERSON

• Probable cause = reasonable belief

• Stop & Frisk = reasonable suspicion backed by articulable fac

• Seizures under 4th Amendment not limited to just seizures based uponprobable cause

• Question : How did the Supreme Court define when a “seizure” of theperson occurs?

o Answer : “Whenever a police officer accosts an individual andrestrains his freedom to walk away” regardless of whether form

arrest is made.• Actual physical seizure makes it clearer that there is a seizure.

o “Obviously, not all personal intercourse between policemen andcitizens involves “seizures” of persons. Only when the officer, bmeans of physical force or show of authority, has in some wayrestrained the liberty of a citizen may be conclude that a “Seizuhas occurred.

REASONING:

• The exclusionary rule has limitations as a tool of judicial control.

• The government's interest in preventing harm must be balanced agaithe invasion into a person's privacy. GI v DI



• The policeman should use an objective test, and be able to point tospecific and articulable facts which reasonably justify the intrusion.Standard would the facts available to the officer at the moment of theseizure or the search Warrant a man of reasonable caution in the beliethat the action taken was appropriate? Anything less would inviteintrusions upon constitutionally protected rights!

• It would be unreasonable to require that the policeman take unnecessrisks. He has a need to protect himself and others in situations where lacks probable cause for arrest.

HOLDING OF COURT:

• where a police officer observes unusual conduct which leads himreasonably to conclude in light of his experience that criminal activitymay be afoot and that the persons with whom he is dealing may bearmed and presently dangerous; where in the course of investigating behavior he identifies himself as a policeman and makes reasonableinquiries; and where nothing in the initial stages of the encounter servto dispel his reasonable fear for his own or others’ safety, he is entitlethe protection of himself and others in the area to conduct a carefully

limited search of the outer clothing of such persons in an attempt todiscover weapons which might be used to assault him.

• BUS SWEEPS (Seizures of the person)o Florida v. BOSTICK (1991) (O’Connor, J.)

Focus on single factor (such as the fact that the encounter occurred on a buincorrect.

In cases like this where suspect has voluntarily placed himself in confined quarters and defendant’s “freedom of movement {is} restricted by a factorindependent of police conduct,” the correct test for whether a seizure occur– is whether a “reasonable person would feel free to decline the officer’srequests or otherwise terminate the encounter.”

Test for SEIZURE: • “Would reasonable person feel free to decline the officer’s requests or

otherwise terminate the encounter?” (Whether or not a reasonablperson feels free to leave.)

o This test is applied to the “reasonable innocent person”

PER SE SEIZURE if you get on the bus and “search & ask questions people”

o not a seizure of the people on the bus or the person that they aasking to search their bags; the police officers are merely askingquestions.

Reasoning:

• The court reasoned that the officers did not show any use of authoritydisplayed any weapons which would make the defendant seized unde4th amendment. The officers clearly informed the defendant of his rigto refuse their request to search the luggage. The defendant made thchoice of riding in a bus and the fact that he felt not free to leave in thcrowded bus environment does not mean that he was seized under thamendment.

• SEIZURE BY PURSUIT (Seizures of the person)o California v. HODARI D (1991) (Scalia, J.)

Submission to show of authority is required.



• Just b/c you grab s/o and hold them doesn’t mean that the seizure iscontinuing. If you break away from a seizure then you are not seizedduring that time. If you are not seized then the evidence can be usedthe government.

QUESTION: What rules did the Supreme Court adopt for cases like this invoa fleeing suspect?

• Answer:o With regard to show of authority by police, no seizure occurs un

and until suspect submits to assertion of authority.o Must either have actual physical force or submission to lawful

authority.o REASONING:

It was held that even if, as conceded by the state, the officer's pursuit of theaccused had not been based on reasonable suspicion, the cocaine discardedthe accused was not the fruit of a "seizure" of his person within the meaningthe Fourth Amendment, because (1) an arrest--the quintessential seizure ofperson under Fourth Amendment jurisprudence--requires either (a) theapplication of physical force with lawful authority, or (b) submission to the

assertion of authority; (2) the accused had not been touched by the officer athe time he discarded the cocaine; and (3) assuming that the officer's pursuthe accused constituted a show of authority enjoining the accused to halt, taccused did not comply with that injunction and therefore the D not seized he was tackled.

MINOR LEAGUE SEIZURESSEIZURES SHORT OF AN ARREST

• FOURTH AMENDMENT ROADMAPo MINOR LEAGUE SEARCH OR SEIZURE

Terry-type; must be reasonableo MAJOR LEAGUE SEARCH OR SEIZURE

Probable cause + warrant or warrant exceptiono Administrative, Special needs searches or seizures –

inventory, drug testing, check lanes, etc.; must be “reasonable”

• TERRY STOPo TERRY v. Ohio (1968) (Warren, CJ)

TERRY STOP & FRISK is ONLY for weapons.

• Terry Stop = Brief stop & frisk of a person whose behavior a police offreasonably considers suspicious and dangerous.

FRISK cop’s reasonable suspicion that the suspect has a weapon THE REASONABLENESS OF THE SEIZURE:

• Testing Police conduct by the 4th amendment’s general proscriptionagainst unreasonable searches and seizures

Next time you see an “on the street encounter” you do not need to go throuthe balancing test, b/c it was done for us in this case. If you come across th“on the street” encounter – the police officer’s rational inferences.

Rationale:



• Court finds that probable cause and warrant requirement is not requirin this situation because of the immediacy of the situation – a copwouldn’t have time to run and get a warrant in order to search the pesuspended could have been gone and got rid of any incriminatingevidence on them.

Analysis: Court determines if it is reasonable (Re-read Page 404-405)

• REASONABLENESS TESTo G.I. vs. D.I.

• REASONABLE SUSPICION: Specific & articulable facts that giverise to a particularized and objective basis for suspecting anindividual of criminal activity; required before a police officermay stop an individual in public.

• Governmental Interestso Officer and public safetyo Crime prevention

• Degree of Intrusiveness Interestso Officer McFadden had a really low range of intrusiveness – he w

only looking for weapons – he did a pat down and only went into

pocket to get the weapon that he felt on the guyo Didn’t go into the pockets until he found a weapono WHAT REASONABLE SUSPICION ALLOWS THE OFFICER TO DO:

If the officer has reasonable suspicion of one of the thingsabove, then he can search only for weapons. (They CANNsearch for drugs, for false identification, etc.)

They can do a cursory search only for weapons. That isspecifically what makes this “frisk” permissible under the amendment.

Not all “seizures” are “arrests” even though all “arrests” are “seizures.” If tpolice accost a subject on the street or elsewhere and restrain her freedom walk away, the subject has been “seized.”

• “Only when the officer, by means of physical force or show of authorithas in some way restrained the liberty of a citizen may be conclude th“seizure has occurred,”

• U.S. v. CORTEZ (1981) – Elaboration on the Terry-Standard: “Totality of Circumstances”

o DRESSLER Notes: In furtherance of the state’s interest in preventing and investigacrime, a police officer with “particularized and objective basis for suspecting (a)particular person…of criminal activity” may forcibly detain the person for a brief period and question him or her.

o “TOTALITY OF THE CIRCUMSTANCES” Element #1:

• The assessment must be based upon all the circumstances.“totality of the circumstances” (From this data a trained officerdraws inferences and makes deductions – inferences and deductions tmight well elude an untrained person)

o Various objective observationso Information from the police reports (if such are available)o Consideration of the modes or patterns of operation of certain k

of lawbreakers

• This process does not deal with hard certainties, but with probabilities



• The evidence collected must be seen and weighed not in terms of libranalysis by scholars, but as understood by those versed in the field ofenforcement.

Element #2:

• An assessment of the whole picture must yield a particularizesuspicion – it is the concept that the process just described in eleme#1 – must raise a suspicion that the particular individual being stoppeengaged in wrongdoing.

o Difference between reasonable suspicion and probable cause:

Reasonable suspicion is less demanding standard of proof, a stop is permissupon something less than the fair probability standard that defines probablecause

Some courts have defined reasonable suspicion as a fair possibility (as oppoto probability) of criminal activity

• U.S. v. SOKOLOW (1989) (Rehnquist, CJ)o The profiling that takes place here is based upon the suspect’s behavior.

Profiling based upon behavior is constitutionally acceptable. Ex. Facts which match a drug courier profile may provide the necessary

reasonable suspicion for a stop under Terry.o Reasonable suspicion is considerably less then based upon a preponderance of

evidence. Reasonable Suspicion If you are looking for a gage then reasonable suspicio

considerably less than a great weight of evidence (more likely than not). Preponderance of Evidence The greater weight of the evidence (sounds like

“more likely” than not)o Facts

D was stopped at the Honolulu airport by agents who knew that

• he paid 2,100 for 2 airplane tickets from a roll of $20 bills

•

he traveled under a name that did not match the name under which htelephone number was listed

• his original destination was Miami, a source city for illicit drugs

• He stayed in Miami for only 48 hrs, even though a round-trip flight froHonolulu to Miami takes 20 hrs.

• he appeared nervous during his trip

• he checked none of his luggageo Reasoning

A court sitting to determine the existence of reasonable suspicion must requthe agent to articulate the factors leading to that conclusion, but the fact ththese factors may be set forth in a profile does not somehow detract form t

evidentiary significance as seen by a trained agent.• EQUAL PROTECTION CLAUSE

o It isn’t the 4th amendment that guides us it is the equal protection clause thatguides us.

4th amendment is subject to abuse need to have your watchful eyes on thas a prosecutor and a defense attorney.

4th amendment is very relevant to Criminal Procedure. We are living in a m4th amendment time.

• COMPANION CASE TO TERRY o SIBRON v. New York (1968) (Warren, CJ)

Use this case as an example of a “yin&yang” of Terry Case



Facts: “You know what I’m after,” and reaches into defendant’s coat pocketdoes defendant and officer comes up with heroin.

Holding: No reasonable suspicion of criminal activity and no reasonablesuspicion that Sibron was armed. (Insufficient reason to stop & frisk)

Mere presence around drug users is not enough to provide reasonable susp justifying a stop.

• Reasonable suspicion can be based upon hearsay of a reliable informant – righfrisk may be immediate if reasonable suspicion exists for frisk

o ADAMS v. WILLIAMS (1972)

Facts: Informant told officer that car occupant was carrying drugs and had in his waist. The cop comes up to the car, says to the guy to open the doorget out of the car. The guy instead rolls down his window. The cop reachedinto the car and grabbed the guy’s weapon.

Reasoning

• The officer had ample reason to fear for his own safety upon being tolan informant that D, seated in a nearby car, was carrying narcotics anhad a gun at his waist.

• rather than comply with the policeman’s request to step out of the ca

that his movements could more easily be seen, the revolver allegedlyWilliams’ waist became an even greater threat.

• Under these circumstances the policeman’s action in reaching to the swhere the gun was thought to be hidden constituted a limited intrusiodesigned to insure the safety, and we conclude that it was reasonable

↓POSSIBLE EXAM AREA↓• REASONABLE SUSPICION TO JUSTIFY STOP: Crime is afoot by the

person stoppedo Illinois v. WARDLOW (2000) (Rehnquist, CJ)

Unprovoked headlong flight in high crime area may providereasonable particularized suspicion

What evidence would we point to, here in this case, in order to sathat there was reasonable suspicion that crime was afoot?

• What the court cares about:o High crime areao Suspect was present in a high crime areao Suspect displayed nervous behavioro Head long flight – suspect didn’t want to cooperateo Police officers were simply doing their job – patrolling t

streets• The court here does not seem to care about the time of day

In this situation, you need both of these factors:

• High crime area

• Flighto Reasoning

An individual’s presence in an area of expected criminal activity, standing alone, is not enoto support a reasonable, particularized suspicion that the person is committing a crime. Buofficers are not required to ignore the relevant characteristics of a location in determining

whether the circumstances are sufficiently suspicious to warrant further investigation.



Accordingly, we have previously noted the fact that the stop occurred in a high crime areaamong the relevant contextual considerations in a Terry analysis.

It was not merely respondent’s presence in an area of heavy narcotics trafficking that arouthe officers’ suspicion but his unprovoked flight upon noticing the police. Our cases have arecognized that nervous, evasive behavior is a pertinent factor in determining reasonablesuspicion. Headlong flight – wherever it occurs – is the consummate act of evasion; it is nonecessarily indicative of wrongdoing, but it is certainly suggestive of such.

While this court had previously held that refusal to cooperate - without more - does not furnthe minimal level of objective justification needed for a detention or seizure, “unprovoked f

is simply not a mere refusal to cooperate”; and that while it “is undoubtedly true” that “theare innocent reasons for flight from police, Terry “recognized that the officers could detain individuals to resolve the ambiguity.”

• PLAIN TOUCH/PLAIN FEEL CASE:o Minnesota v. DICKERSON (1993)

Basis for TERRY FRISK is OVER

• So, if you continue to manipulate the situation b/c it is readily apparenyou that upon plain feel/plain touch that what you are touching iscontraband (probable cause) then you can seize it under MinnesotaDickerson

UNDER TERRY FRISK:• If you pat a person down and you don’t feel a weapon, but you do fee

something else in their pocket. And if you don’t know what is in theirpocket upon plain touch/plain feel, then you can cannot seize it b/c yhave no probable cause to know that it is contraband.

• Using the balancing test to extend TERRY-STOP to articulable factsbased upon past criminal activity

o U.S. v. HENSLEY (1985) (O’Connor, J.)

This reasonable suspicion can be based upon past crime activity.

• Using balancing test to extend the “Terry-stop” to articulable facts ba

upon past criminal conduct Terry-stop extended to reasonable suspicion based upon past criminal activ

can be done for felonies or crimes involving violent activity (misdemeano Reasoning

• Balance the nature and quality of the intrusion on personal security against theimportance of the gov’t interests alleged to justify the intrusion. When this balancintest is applied to stops to investigate past crimes, we think that p/c to arrest need nalways be required.

• The factors in the balance may be somewhat different when a stop to investigate pacriminal activity is involved rather than a stop to investigate ongoing criminal condu

o A stop to investigate an already completed crime does not necessarily promothe interest of crime prevention as directly as a stop to investigate suspecte

ongoing criminal activity.o Similarly, the exigent circumstances are not necessarily as pressing long

afterwards.o Public safety may be less threatened by a past crime than it is by a suspect w

is currently in the process of violating the law.o Finally, officers making a stop to investigate past crimes may have a wider ra

of opportunity to choose the time and circumstances of the stop.o Restraining police action until after probable cause is obtained would not onl

hinder the investigation, but might also enable the suspect to flee in the inteand to remain at large.

o if police have a reasonable suspicion, grounded in specific and articulable facthat a person they encounter was involved in or is wanted in connection withcompleted felony, then a Terry stop may be made to investigate that suspici



• FRISK OF CARo Michigan v. LONG (1983) (O’Connor, J.)

Frisk of car is limited to a search for weapons (passenger compartment, anywhere weapons can be found/located)

• This creates an alternative for law enforcement officers This is an extension of an authorized weapons frisk to the passenger

compartment of a lawfully stopped vehicle.

Reasonable suspicion – suspect is dangerous and he might be able to easilya hold of a weapon. Facts

• The officers saw a large hunting knife on the floorboard, so Long wasfrisked and one officer then entered the vehicle and found an open poof marijuana under an armrest.

Rule

• A search of the passenger compartment of an automobile, limited tothose areas in which a weapon may be placed or hidden, is permissiblthe police officer possesses a reasonable belief based on specific andarticulable facts which, taken together with the rational inferences fro

those facts, reasonably warrant the officers in believing that the suspis dangerous and the suspect may gain immediate control of weapons

Reasoning• A Terry-investigation such as the one that occurred here, involves a police investiga

“at close range,” when the officer remains particularly vulnerable in part b/c a fullcustodial arrest has not been effected, and the officer must make a quick decision ahow to protect himself and others from possible danger

o Terry Encounters

A Terry suspect on the street may, despite being under the brief conta police officer, reach into his clothing and retrieve a weapon, so migh

Terry suspect in Long’s position break away from the police control anretrieve a weapon from his automobile.

If the suspect is not placed under arrest, he will be permitted to reentautomobile and he will then have access to any weapons inside.

• “PROTECTICE SWEEP” CASEo Maryland v. BUIE (1990) (White, J.)

Protective Sweep = when the officers are acting for their own protection TEST:

• Based upon probable cause in the arrest warrant officers don’t neeanymore probable cause then what is given by the arrest warrant

o They can search the guy upon arrest, as well as anything withinguy’s wingspan

•

To look beyond the person’s wingspan….o Officer’s need Reasonable suspicion that the house harbors adangerous individual that allows you to look for persons who arecarrying dangerous weapons.

Officer’s can only look to see if there is a dangerous persohiding in an area

• Can search in places big enough to fit a (dangerous)person

Officers can stay in the house no longer then it takes to arrest the guy anddispel reasonable suspicion (that the house might harbor a dangerous perso

Officers are allowed to go to the house, search the suspect under an arrest

warrant but they CANNNOT search the house.



It is good to get a search warrant for the house @ the same time you get tharrest warrant,

BRIEF OF THE CASE:

• Factso 2 men (one wearing a red running suit) committed an armed robbery

• Holdingo A warrant was not requiredo An incident to the arrest the officers could, as a precautionary matter and wi

probable cause or reasonable suspicion, look in closets and other spacesimmediately adjoining the place of arrest from which an attack could beimmediately launched.

o Beyond that, however, we hold that there must be articulable facts which, ta

together with the rational inferences from those facts, would warrant areasonable prudent officer in believing that the area to be swept harbors anindividual posing a danger to those on the arrest scene. – cursory inspection

• Search Warrant for a Place:o Requirements to get a Search warrant for a house search:

Officers need probable cause that evidence exists and that it is located at thplace

o

Purpose of a Search Warrant Search warrants allow cops to search the premises (place)

• Reasonable To Order Driver Out of Lawfully Stopped Caro Pennsylvania v. MIMMS (1977)

When you lawfully stop a car, it is reasonable to order a driver Facts

• Officers ordered the driver our of the car, which resulted in theobservation of a large bulge under his pocket, and this prompted a friand discovery of a gun.

• Reasonable to Order Passengers Out of Lawfully Stopped Caro Maryland v. WILSON (1977)

An officer making a traffic stop may order passengers to get out of the carpending completion of the stop.

There is not the same basis for ordering the passengers out of the car as this for ordering the driver out. However, the additional intrusion on thepassenger is minimal. And it is justified in light of the fact that “danger to aofficer from a traffic stop is likely to be greater when there are passengers iaddition to the driver in the stopped car.”

• NO “BRIGHT LINE” TIME LIMITATIONo United States v. SHARPE (1985) (Burger, CJ)

A seizure based upon reasonable suspicion may be permitted although it las

longer (20 minutes) than those that occurred in TERRY If an officer smells marijuana, then he will have probable cause that marijua

exists No warrant needed: Rationale Vehicles are readily mobile and therefore t

is a reduced expectation or privacy IF YOU ARE BEING HELD THAT LONG, YOU NEED MORE EVIDENCE –

MORE PROBABLE CAUSE IS NEEDED.

BRIEF OF CASE:

• Factso overloaded camper truck traveling in tandem with a Pontiac

• Rule



o If an investigative stop continues indefinitely, at some point it can no longer justified as an investigative stop.

o Past cases impose no rigid time limitation on Terry stops.

• Reasoningo In assessing whether a detention is too long in duration to be justified as an

investigative stop, we consider it appropriate to examine whether the policediligently pursued a means of investigation that was likely to confirm or disptheir suspicions quickly, during which time it was necessary to detain thedefendant.

o A court making this assessment should take care to consider whether the poare acting in a swiftly developing situation, and in such cases the court shouindulge in unrealistic second-guessing.

o The fact that the protections of the public might, in the abstract, have beenaccomplished by less intrusive means does not, in itself, render the searchunreasonable.

• PERMISSIBLE EXTENT OF A TEMPORARY SEIZUREo HIBEL v. Sixth Judicial District Court (2004)

Can a state law require a suspect to provide his name without violating the amendment? YES

An officer does not have p/c to arrest s/o if the suspect doesn’t provide themwith identification.

• Even if a State says that an individual must provide identification uporequest, if the individual refuses it still not a requirement made by theamendment.

Facts Nevada’s “stop and identify” statute that a person lawfully stopped under Terry “shidentify himself.”

Rule• A state can require that a citizen to provide a police officer with a name, if so asked

Effects of the Rule:

• This rule has limited 4th amendment significance

• It does not affect when a Terry-stop approves a crime definition permitting arrest inrare event a suspect refuses to give a name.

• This decision is so limited because the Court, relying upon a sentence in the state codecisions asserting that the suspect is only required “to state his name,” assumed t“the statute does not require a suspect to give the officer a driver’s license or any odocument,” and thus limited its holding to the “question whether a State can compesuspect to disclose his name during a Terry-stop.”

Reasoning

• The 4th amendment itself cannot require a suspect to answer questions.

• Using a Terry-style balancing of interests, the Court answered the issue in theaffirmative, reasoning that:

o The request for identity has an immediate relation to the purpose, rationale, practical demands of a Terry-stop

o The threat of criminal sanction helps ensure that the request for identity doe

become a legal nullity; ando Such threat does not alter the nature of the stop itself provided that the requ

for identification was “reasonably related in scope to the circumstances whic justified the stop.”

Using a Terry-style balancing test – the Court answered the latter question ithe affirmative, reasoning: (1) that the request for identity has an immediarelation to the purpose, rationale, and practical demands of a Terry-stop; (2that the “threat of criminal sanction helps ensure that the request for identidoes not become a legal nullity; (3) (that such threat “does not alter the naof the stop itself” provided (as is essential under TERRY) that the “request fidentification was ‘reasonably related in scope to the circumstances which justified’ the stop.”



o DRUG DOGS Illinois v. CABALLES (2005)

• Drug dog doesn’t exceed the scope of permissible basis for the searchthe car.

Rule• A dog sniff would not change the character of a traffic stop that is lawful at its incep

and otherwise executed in a reasonable manner, unless the dog sniff itself infringedrespondent’s constitutionally protected interest in privacy.

Reasoning• The initial seizure of respondent when he was stopped on the highway was based o

probable cause, and was concededly lawful. It is nevertheless clear that a seizure tlawful at its inception can violate the 4th amendment if its manner of executionunreasonably infringes interests protected by the Constitution. A seizure that is jussolely by the interest in issuing a warning ticket to the driver can become unlawful iprolonged beyond the time reasonably required to complete that mission.

• In our view, conducting a dog sniff would not change the character of a traffic stop tis lawful at its inception and otherwise executed in a reasonable manner, unless thesniff itself infringed respondent’s constitutionally protected interest in privacy.

o YOU DON’T NEED TO BE TOLD THAT YOU ARE “FREE TO GO” Ohio v. ROBINETTE (1996) (Rehnquist, CJ)

• 4th amendment does not require that a lawfully seized person be advithat he is “free to go” before his consent to a car search is recognizedvoluntary.

o This is subject to abuse, but then again, everything in criminalprocedure is.

• Factso A sheriff’s deputy on “drug interdiction patrol” stopped D for

speeding. The deputy examined D’s license, ran a computer chindicating no previous violations, issued a verbal warning andreturned D’s license, and then immediately asked D if he had dr

in the car; when defendant answer in the negative, the deputyasked to search the car and D consented, resulting in a searchwhich uncovered a small amount of marijuana and a single pillwhich was a controlled substance.

• Reasoningo The State’s per se rule was deemed inconsistent with the approach to the 4th

amendment issues by the Supreme Court, which has consistently eschewedbright line rules, instead emphasizing the fact-specific nature of thereasonableness inquiry.

o The court reasoned that requiring such warnings would be just as impracticathe right to refuse consent warnings held unnecessary by the Court inSchneckloth v. Bustamonte

o Chief Justice declared that the state court was in error b/c the subjectiveintentions of the officer did not make the continued detention of respondentillegal under the 4th amendment.

o Permissible to Detain persons on the premises of their homeduring an authorized search of their home looking for contrab

Michigan v. SUMMERS (1981) (Stevens, J.)

• Is it constitutionally permissible to detain this guy to authorize a searcwithin the home?

o The court says “yes.” The court says this is a different situationthen an “on the street seizure.” There are several interestsinvolved in this situation.



• Factso Detroit police officers were about to execute a warrant to search

house for narcotics as they ran into respondent, whom wasdescending the front steps.

• Ruleo In assessing the justification for the detention of an occupant of

premises being searched for contraband pursuant to a validwarrant, both the law enforcement interest and the nature of tharticulable facts supporting the detention are relevant.

Most obvious is the legitimate law enforcement interest inpreventing flight in the event that incriminating evidence found.

Less obvious, but sometimes of greater importance, is theinterest in minimizing the risk of harm to the officers.

• Reasoningo Upheld the seizure on the basis of the principle derived from Terry and related cases, namely, t

“some seizures constitute such limited intrusions on the personal security of those detained and justified by such substantial law enforcement interests that they may be made on less than procause, so long as police have an articulable basis for suspecting criminal activity”:

Of prime importance in assessing the intrusion is the fact that the police had obtained

warrant to search respondent’s house for contraband. A neutral and detached magisthad found probable cause to believe that the law was being violated in that house andauthorized a substantial invasion of the privacy of the persons who resided there. Thedetention of one of the residents while the premises were searched, although admittedsignificant restraint on his liberty was surely less intrusive than the search itself.

o The type of detention imposed here is not likely to be exploited by the officer or unduly prolongorder to gain more information, because the information the officers seek normally will be obtaithrough the search and not through the detention.

o B/c the detention in this case was in respondent’s own resident, it could add only minimally to tpublic stigma associated with the search itself and would involve neither the inconvenience norindignity associated with a compelled visit to the police station.

o Both the law enforcement interest and the nature of the articulable facts supporting the detentirelevant.

Law Enforcement Interests:• Interest in preventing flight in the event that incriminating evidence is found.• Interest in minimizing the risk of harm to the officers.

o MUEHLER v. MENA (2005) – extension of Summers case As a safety matter the court approved the use of appropriately used handcu

while detaining an individual. Rule As a safety matter, the court approved the use of appropriately used

handcuffs while detaining an individual. Reasoning

• Handcuffs are more intrusive then telling someone to stay right there but it is okay to use them in this situation

• Detention and search of persons while executing a warrant in premiseopen to public – the mere propinquity to others independently suspec

of criminal activity is not enough to provide reasonable suspicion for Tfrisk (or p/c for search)

• Detention and search of persons while executing a warrant in premises open to the pubo YBARRA v. Illinois (1979) (Stewart, J.)

The “mere propinquity to others independently suspected of criminal activitNOT enough to provide reasonable suspicion for TERRY-FRISK for probablecause search

There needs to be a reasonable suspicion in order to justify a frisk upon s/o Here, it was okay for the cops to detain him, but not to frisk him b/c there w

no p/c. A “STOP” has different requirements than a “FRISK” does.



Facts

• On the basis of information from an informant that he had frequently and recently observed tpackets of heroin behind the bar and on the person of the bartender of a certain tavern. Ybarpocket, and tinfoil packets of heroin were found therein.

Reasoning• The authorities did not have probable cause at the time the warrant was issued to believe that any perso

found on the premises of the Aurora Tap Tavern (aside form the bartender) would be violating the law.o The complaint for search warrant did not allege that the bar was frequented by persons illegally

purchasing drugs.o It did not state that the informant had ever seen a patron of the tavern purchase drugs from the

bartender or from any other person.o Nowhere in the complaint did it even mention the patrons of the Aurora Tap Tavern.

• Probable cause was still absent when the police executed the warrant.o At the time of entering the Tavern, the police had no reason to suspect Ybarra of committing a c

He did nothing suspicious or to give a gesture/movement that he was concealing contraband.• The warrant was based on probable cause to search the tavern in which Ybarra happened to be at the tim

warrant was executed.o But a person’s mere proximity to others independently suspected of criminal activity does not, w

more, give rise to probable cause to search that person.

ARREST AND THE EQUIVALENT• When does a permissible Minor League Seizure become a Major League Seizure Requiri

P/C?• DUNAWAY v. NY (1979) (Brennan, J.)

o Forcible movement of suspect to police station can be de facto arrest, requiringprobable cause

o Holding: The treatment of petitioner, whether or not it is technically characterizedan arrest, must be supported by probable cause b/c detention for custodialinterrogation – regardless of its label – intrudes so severely on interests protectedthe 4th amendment as necessarily to trigger the traditional safeguards against illearrest.

o Reasoning:

The detention of petitioner was in important respects indistinguishable fromtraditional arrest. Petitioner was not questioned briefly where he was foundInstead, he was taken from a neighbor’s home to a police car, transported tpolice station, and placed in an interrogation room. He was never informedhe was “free to go”; indeed, he would have been physically restrained if he refused to accompany the officers or had tried to escape their custody.

The application of the 4th amendment requirement of probable cause doesndepend on whether an intrusion of this magnitude is termed an arrest understate law. The mere facts that petitioner was not told he was under arrest, not booked, and would not have had an arrest record if the interrogation haproved fruitless, obviously don’t make petitioner’s seizure even roughly

analogous to the narrowly defined intrusions involved in TERRY and its progIndeed, any exception that could cover a seizure as intrusive as that in this would threaten to swallow the general rule that 4th amendment seizures arereasonable only if based on probable cause not amount to technical arrests

•

o Florida v. ROYER (1983) Under facts of this case, 15 minute detention required probable cause. Facts:

• Man observed at airport by two plain clothes officers. Appeared to be a drug courieMan purchased one way ticket to NY and checked baggage. Put name of “Holt” on

The two cops approached, identified and asked if he had a moment to talk. He said

“yes.” Upon request, but without consent, man produced his ticket and driver’s lice



Ticket and bags had the same name, but driver’s license said “Royer.” Man becamnervous and cops said there were narcs and that they suspected him. He didn’t givback to man and asked him to accompany them to a room forty feet away. The masaid nothing, but went into large storage closet with a small desk and two chairs.Without consent, the officers got the bags and brought them into the room. They athe man if he would consent to a search of the bags. Without orally responding, heunlocked the suitcases and the cop looked through without seeking further assent. Tcops found drugs in the suitcases. The man said he didn’t know the combo for thesecond suitcase and when asked if they could look through it he said go ahead. It wbroken and pot was found in the second suitcase.

• Fingerprinting as a basis for a TERRY-STOP transporting to policstation for prints generally requires probable cause

o DAVIS v. Mississippi (1969) (Brennan, J.)

They only had fingerprints (from a bunch of people). They moved thedefendant to the police station and fingerprinted him.

Here, they needed probable cause and they didn’t have it. Transporting to the police station generally requires probable cause. The S.C. said that it is probably okay to come to someone’s house and

fingerprint them.

•

Taking someone down for questioning is an unconstitutional seizure – musthave more.o KAUPP v. Texas (2003) (per curiam)

This is not a seizure. The evidence points to arrest even more starkly than facts of Dunaway. Cops in bedroom of 17 year old boy at 3 a.m. The officesaid we need to go and talk. In his underwear, he was taken in a cop car toinvestigation room.

Unanimous opinion for the Supreme Court that said this was an unconstitut

seizure.

• DELAYSo

U.S. v. PLACE (1983) (O’Connor, J.) The defendant was delayed for 90 minutes when the police/security took hisluggage from LaGuardia to Kennedy airport. They had drug dogs sniff the band they found drugs. They had probable cause after finding the drugs to gan arrest warrant or a search warrant.

A seizure of the luggage is a seizure of the person (b/c it is so intimatelyconnected)

You need probable cause to search. It would have been constitutional if thesniffed the luggage had the drug dogs sniff the bags right before they tookthem.

But since they transported the luggage and took too much time to do their

investigation, then the police were at fault.

PROBABLE CAUSE• Questions to think about:

o What is it?o Where does it come from?o When do you have it?

• Demonstrating Probable Cause – the creation of a two-pronged testo SPINELLI v. U.S. (1969) (Harlan, J.)

RULE:



• To give rise to probable cause an informant’s tip must either contain:o 1) A sufficient statement of the underlying circumstances from

which the informant gained his knowledgeo 2) Information supporting the applying officer’s belief that the

informant is reliable and credible. Here, the informer’s report must be measured against Augilar’s standards (

two prong test). If that doesn’t quite meet up, then you can use policecorroboration. You do not use police corroboration until you have done the prong test.

In DRAPER, the informant gave VERY SPECIFIC details about what the defenwould be wearing and where he was coming from…therefore the magistrateconfronted with such information could reasonably infer that the informant gained his information in a reliable manner. This would get around thecorroboration prong.

Facts:• Affidavit said that Spinelli crossed bridges from Missouri to Illinois. He parked his ca

lot of residence in Missouri. He had 2 telephones in his apartment that he lived in. known as a gambler. The police were informed that he was accepting wagers throuhis telephones in Missouri.

Reasoning in this case:• Without the a statement of detailing the manner in which the information was gathe

it is very important that the tip describe the accused’s criminal activity in sufficient so the magistrate may know that he is relying on more than a casual rumor or anaccusation based on the accused’s general reputation.

• Here, the informer’s tip, even when corroborated to the extent it was, is not sufficieprovide a basis for a finding of probable cause.

AGUILAR CASE

• Ct. issued a warrant based on an affidavit from officer who said he received credibleabout narcotics. Police got warrant and found narcotics. Magistrate issues warrantis credible, but in this case, magistrate does not know credibility. Ct. said you havegive us something about credibility and corroboration to issue a warrant.

• Created Two Prong Test:o Credibility of Informant

How did they get that knowledge? It helps the judge know that this isvalid information.

o Veracity

Reliability of the information. How much detail is needed

• TWO PRONG TEST FOR DETERMINING PROBABLE CAUSE BASED ONINFORMANT’S TIP IS ABANDONED (Agu. & Spin. Test gone!) IN FAVOF A LESS TECHNICAL TOTALITY OF THE CIRCUMSTANCES TEST

o Illinois v. GATES (1983) (Rehnquist, J.)

Abandonment of the Aguilar two-pronged test in favor of the “totality of circumstances” test; basis of knowledge and veracity still relevant to commsense question regarding existence of probable cause.

Facts: Based on a corroborated informant’s tip regarding Gates (D) travelplans police obtained a search warrant and discovered about 350 pounds ofmarijuana in Gates’ automobile.

• Search Warrant Affidavito Anonymous Handwritten Letter May 3, 1978: “This letter is to inform you that you ha

couple in your town who strictly make their living on selling drugs.

• What Additional information did police obtain as result of tip aplace in affidavit?



o Detective Mader, Bloomingdale PD, learned from the office of thIllinois Secretary of State, that an Illinois driver’s license had beissued to one Lance Gates, residing at a stated address inBloomingdale.

• Additional Informationo Learned from a police officer assigned to O’Hare Airport that

“L.Gates” had made a reservation on Eastern Airlines flight 245 West Palm Beach, Florida, scheduled to depart from Chicago on5th at 4:15 p.m.

o DEA agent later reported to Mader that Gates had boarded the fto Florida…

RULE: A search warrant based on an informant’s tip may be properly issuegiven the totality of the circumstances set forth in the warrant application,including the veracity and basis of knowledge of the informant and anycorroboration of the informant’s information, there is a fair probability thatcontraband or evidence will be found in the place to be searched.

Now if one is lacking another can offset:

• Bad/lacking info

•However used him before 15-20 times balancing test

• Weighed all aspects together

• After Gates, what is task of magistrate when asked by police for a warrant?o “The task of the issuing magistrate is simply to make a practical, common-sen

decision whether, given all the circumstances set forth in the affidavitbefore him, including the “veracity” and “basis of knowledge” of persons supplyhearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place.”

• PROBABLE CAUSE v. REASONABLE SUSPICION:o Alabama v. WHITE (1990)

Probable cause, like reasonable suspicion, can be based upon hearsay – theonly difference being the level of suspicion that must be established.

Facts Anonymous tip that White could leave named apartment at specifietime in brown station wagon with broken taillight lens on way to named motwith cocaine in brown attaché case.

• The tip given by tipster gave future behavior of suspect and that tip wconfirmed by the police.

Reasonable suspicion is a less demanding standard than probable cause noonly in the sense that reasonable suspicion can be established with informathat is different in quantity or content than that required to establish probabcause, but also in the sense that reasonable suspicion can arise from

information that is less reliable than that required to show probable cause.• PROBABLE CAUSE, REASONABLE SUSPICION, & ANONYMOUS TIP:

o Florida v. J.L. (2000) (Ginsburg, J.)

Anonymous tip must exhibit moderate indicia of reliability to justifystop and frisk

GATES ANALYSIS applies to reasonable suspicion calculation too

Facts: Anonymous caller tells police that young black man at particular bustop wearing a plaid shirt is carrying a weapon. Police went to bus stop, sawman matching description, frisked him, and found weapon.



Holding: Frisk is unreasonable b/c police had no information concerning thbasis of the informant’s knowledge; no information concerning the reliabilitythe informant; no predictive information concerning the subject’s conduct thcould be confirmed independently.

o Massachusetts v. UPTON (1984)

Applying GATES, court found ex-girlfriend information sufficiently reliable tosupport magistrate’s determination that there was a “fair probability thatcontraband or evidence of crime” would be found in defendant’s home.

Unidentified female says that there is a trailer filled with stolen stuff. The pknow who she is and ask her if it is her. She detailed the items that weremissing. It shows a relationship b/w the two parties (this explains why she not want to be identified) and that she was afraid that he would find out whoratted him out.

• PROBABLE CAUSE WITH MORE THAN ONE PERSONo Maryland v. PRINGLE (2003) (Rehnquist, CJ)

Calculating probable cause at an arrest scene:

• 1) When does the officer have enough to arrest?

• 2) Who can the officer arrest?

Stopped car for speeding. There were 3 people in the car. Officer saw a wacash in the glove compartment.

There was probable cause that they were solely possessing drugs and probacause that they were jointly possessing drugs

The court says that the amount of evidence you need is 33 1/3 evidence (alneed is a reasonable belief of guilt).

Need more for joint possession. Favor probability – common enterprise Distinguish b/w this case and Ybarra in Ybarra the search warrant was for

bar/bartender. They frisked a person at the bar. There was no probable ca

Here, there was fair probability that the people in the car have a commonenterprise and there is a fair probability that there is probable cause to arrethe three men in the car.

o FRANKS v. DELAWARE (1978) (Blackmun, J.)

Under limited circumstances, the Court permits a defendant to attaa facially valid search warrant after the search has occurred.

A court will permit a D to attack a valid warrant on its face. They have to ma substantial preliminary showing that there was a false statement in theaffidavit and that this statement affected the magistrates’ decision to give tpolice probable cause for the warrant.

The D must also show all three elements by a preponderance of the evidenc

It may be sufficient probable cause without the false statement. There must be a fair probability for there to be probable cause (pg. 294 note Quantity of evidence to establish probable cause is a fair probability not a

substantial probability.

ARREST WARRANTS and RELATEDMATTERS

• Main question:



o When and under what circumstances do police need an arrest warrant before theycan arrest someone for a crime?

• ARREST IN A PUBLIC PLACE:o United States v. WATSONo ATWATER v. CITY OF LAGO VISTA (2001) (Souter, J.)

• ARREST IN THE HOME:o PAYTON v. New York (1980) (Stevens, J.)

•

ARREST IN A 3

rd

PARTY’S HOME:o STEAGALD v. United States (1981) (Marshall, J.)

EXIGENT CIRCUMSTANCES:• WARDEN v. HAYDEN (1967)

• United States v. SANTANA (1976)

• EXIGENT CIRCUMSTANCES LIMITATIONS:o WELSH v. WISCONSIN (1984) (Brennan, J.)

• Minnesota v. OLSON (1990)

• EXIGENT CIRCUMSTANCES LIMITATIONS:o VALE v. Louisiana (1970) (Stewart)

• EXIGENT CIRCUMSTANCES & RELATED MATTERS:o SEGURA v. United States (1984) (Burger, CJ)o Illinois v. MCARTHUR (2001) (Breyer, J.)

• EXIGENT CIRCUMSTANCES LIMITATIONS:o MINCEY v. Arizona (1978)

• “KNOCK & ANNOUNCE”o RICHARDS v. Wisconsin (1997) (Stevens, J.)o United States v. BANKS (2003) (Souter, J.)

POLICE PRACTICES – ARRESTS,SEARCHES AND SEIZURES

SEARCHES FOR EVIDENCEECTION 2: PROTECTED AREAS & INTERESTS • “How does the Supreme Court’s definition of “search” differ from Webster’s

definition?

• If what police did is not a search, then the 4th amendment does not apply.

• SEARCHES – PROTECTED AREAS AND INTERESTSo KATZ v. United States (1967) (Stewart, J.)

Telephone booth case “What ‘a person knowingly exposes to the public, even in his own

home or office, is not a subject of 4th amendment protection’; what



person seeks to preserve as private, even in an area accessible to tpublic, may be constitutionally protected.”

4th amendment applies to not only tangible items, but extends to ostatements overheard without any physical intrusion.

• In a telephone booth, you expect your words to be private. MAJORITY HELD: the police conduct “constituted a ‘search and seizure’ with

the meaning of the 4th amendment” b/c of the intrusion upon the defendantprivacy interest.

• This does not mean that privacy is the only interest protected by the 4amendment. The 4th amendment also protects the interests in possesof property and liberty of person, as in U.S. v. Place (detention of traveler’s luggage 90 minutes was an unreasonable seizure in tworespects, as it constituted a deprivation of defendant’s “possessoryinterest in his luggage” and his “liberty interest in proceeding with hisitinerary”).

J. Harlan’s Concurrence in KATZ: {CURRENT LAW}• Rule for determining whether particular police investigation activity

constitutes a search within meaning of the 4th amendment:

• TWO PRONG TEST:o 1) A person has exhibited an actual (subjective) expectation of

privacy, ando 2) The expectation is one that society is prepared to recognize a

“reasonable.” Reasonableness of an expectation of privacy would be

determined by existing laws and practices. Interests protected by 4th after KATZ

• no legitimate privacy interest in illegal activity

• Three legitimate interests held by all citizens that can be impaired

gov’t activity:o 1) Interest in being free from physical disruption andinconveniences

Can’t just do a body search on anyoneo 2) Interest in keeping personal or embarrassing info privateo 3) Interest in control over and use of his property

• A seizure may occur without search & a search may occur without aseizure

o OLIVER v. United States (1984) (Powell, J.) The special protection accorded by the 4th amendment to the people in thei

“persons, houses, papers, and effects,” is not extended to the open fields.• “Open field is not a person, house, paper, or effect.”

Holding: “Open fields” doctrine (of Hester Case) by which police entry andexamination of a field is free of any 4th amendment restraints. (This was nooverruled by KATZ)

Reasoning:• Open fields do not provide the setting for those intimate activities that the amendm

intended to shelter from gov’t interference or surveillance. There is no societal intein protecting the privacy of those activities, such as the cultivation of crops that occopen fields. Moreover, as a practical matter these lands usually are accessible to thpublic and the police in ways that a home, an officer or commercial structure would be. It is not generally true that fences or no trespassing signs effectively bar the pufrom viewing open fields in rural areas. The public and police lawfully may survey la



from the air. (For these reasons, the asserted expectation of privacy in open fields an expectation that “society recognizes as reasonable.”)

• No expectation of privacy legitimately attached to “open fields.”

TEST of legitimacy:

• Whether the government’s intrusion infringes upon the personal andsocietal values protected by the 4th amendment.

• THE TEST IS NOT:o Whether the individual chooses to conceal assertedly “private”

activity. Hester Case ***Common law distinguished “open fields” from “curtilage”:

• “Open Fields” o The land immediately surrounding and associated with the home

o Any area outside the “curtilage” is an “open field”. Therefore define a curti

first, and then you’ll know where the “open field” starts.

o RESULT:

If police clearly meet the definition of an “open field,” thepolice can search it without having any 4th amendmentrequirements.

• “Curtilage” o The area to which extends the intimate activity associated with

“sanctity of a man’s home and the privacies of life.”o Any area outside a home or an “open field” is “curtilage”.o Factors that determine whether an individual reasonably may

expect that an area immediately adjacent to the home will remaprivate:

1) The proximity of the area claimed to be curtilage to thehome

2) Whether the area is included within an enclosuresurrounding the home

3) The nature of the uses to which the area is put 4) The steps taken by the resident to protect the area from

observation by people passing byo RESULT:

4th amendment protection has been extended to the“curtilage” and has been considered part of the home itse

U.S. v. DUNN (1987) (Page 253, Comment “E”)• Facts: Entire ranch was encircled by a fence and barbed wires. Officers ignored wir

and trespassed without warrant. They crossed the outer fence and the interior fencbefore they smelled an odor of acid. Crossed an interior wire surrounding a smallerand then around larger barn. There was netting above the gates. Police could not s

through the netting. They approached the gates, shined light through the netting asaw the drug lab. They left property without entering barn but reentered property twithout warrant before they finally went to get a warrant.

• Curtilage questions should be resolved with particular reference to fourfactors:

o 1) The proximity of the area claimed to be curtilage to the home

o 2) Whether the area is included within an enclosure surrounding the

home

o 3) The nature of the uses to which the area is put

o 4) The steps taken by the resident to protect the area from observa

by people passing by

• Applying these factors, the Court then concluded the barn into which the police look

was not within the curtilage (DID NOT CONSTITUTE A SEARCH!), as it was 60 yards f



the house, was outside the area surrounding the house enclosed by a fence, did notappear to the police to be “used for intimate activities of the home,” and the fencesoutside the barn were not of a kind “to prevent persons from observing what lay insthe enclosed area.”

o Area was outside curtilage, no police intrusion, did not constitute a searcho Search = looking into the barn

• The Court added that even assuming the barn was protected business premises, it swas no search to look into the open barn from an open field vantage point.

• Access by members of the public

o If an aspect of a person’s life is subject to scrutiny by society, then that persohas no legitimate expectation in denying equivalent access to police.

o Thus, no search occurs if the police obtain information which members of thepublic could also obtain.

o Florida v. RILEY (1989) (White, J.)

Aerial surveillance not a search under certain circumstances

• PLANE IS WITHIN THE NAVIGABLE AIRSPACE SPECIFIED BY LAW.

• Reasoning:o Any member of the public could legally have been flying over Riley’s proper

a helicopter at the altitude of 400 feet and could have observed Riley’sgreenhouse.

There would be a different result if flying at that altitude had been contrary law or regulation.

o California v. GREENWOOD No reasonable expectation of privacy in garbage plaby the curb

Reasoning:

• What a person knowingly exposes to the public, even in his own home or office, is nsubject of 4th amendment protection. (KATZ)

• It is common knowledge that plastic garbage bags left on or at the side of a public sare readily accessible to animals, children, scavengers, snoops, and other membersthe public. Moreover, respondents placed their refuse at the curb for the expresspurpose of conveying it to a third party, the trash collector, who might himself havesorted through respondent’s trash or permitted others, such as the police to do so.

Accordingly, having deposited their garbage ‘in an area particularly suited for publicinspection and, in a manner of speaking, public consumption, for the express purpohaving strangers take it,’ respondents could have had no reasonable expectation ofprivacy in the inculpatory items that they have discarded. The police cannot reasonbe expected to avert their eyes from evidence of criminal activity that could have beobserved by any member of the public.

• A person has no legitimate expectation of privacy in information he voluntarily turnsto third parties.

Smith v. Maryland (1979)

• The police did not violate the 4 th amendment by causing a pen register to be installethe telephone company’s offices to record the telephone numbers dialed by a crimisuspect.

• An individual has no legitimate expectation of privacy in the numbers dialed on his

telephone, we reasoned, b/c he voluntarily conveys those numbers to the telephonecompany when he uses the telephone.

• A person has no legitimate expectation of privacy in information he voluntarily turnsto third parties.

California v. Ciraolo (1986)

• The police were not required by the 4 th amendment to obtain a warrant beforeconducting surveillance of the respondent’s fenced backyard from a private plane flat an altitude of 1,000 feet. We concluded that the respondent’s expectation that hyard was protected from such surveillance was unreasonable b/c any member of thepublic flying in this airspace who glanced down could have seen everything that theofficers observed.



Should GREENWOOD apply even when the defendant has resorted trather extraordinary means to ensure that the incriminating characof his garbage is not perceived by others?

U.S. v. SCOTT (1st Circuit – 1992) the answer is YES. • IRS agents reassembled documents which D shredded into 5/32-inch strips before

putting them in the garbage later placed outside his curtilage.

• ANALOGY BY COURT: A person who prepares incriminating documents in a secret c(or for that matter in some obscure foreign language), and thereafter blithely discar

them as trash, relying on the premise or hope that they will not be deciphered (ortranslated) by the authorities could well be in for an unpleasant surprise if his code “broken” by the police (or a translator is found for the abstruse language), but he camake a valid claim that his subjective expectation in keeping the contents private bof the secret cod (or language) was reasonable in a constitutional sense.

o BOND v. United States (2000) {EFFECTS} THE WRONGFUL SQUEEZE CA

Facts: During a lawful stop of a Greyhound bus, federal agents walked throthe bus and squeezed the soft luggage passengers had placed in the overhestorage spaces.

Reasoning:

• He does not expect that other passengers or bus employees will, as a

matter of course, feel the bag in an exploratory manner.• The court noted:o 1) A traveler’s personal luggage is clearly an effect protected by the 4 th

amendmento 2) The government’s reliance on such cases as Riley was misplaced b/c “phy

invasive inspection is simply more intrusive than purely visual inspection”o 3) While Bond’s bag was not part of his person, travelers are particularly

concerned about their carry-on luggage; they generally use it to transportpersonal items that, for whatever reason, they prefer to keep close at hand.

• SEARCHES – THE USE OF TECHNOLOGY o United States v. KNOTTS (1983) (Rehnquist, J.) Use of an electronic Beep

Tracking Device – “Augmenting sensory faculties” with “science andtechnology”

The court said that it is not a search under the 4th amendment b/c it is justshowing where something is going, it is not showing what is actually going o

They are just tracking the guy with a device, which they are just usingtechnology to give them a boost – which is what they could theoretically do they have the man power) by setting up officers on all street corners.

o United States v. Karo (1984)

o DOW CHEMICAL COMPANY v. U.S. (1986) (Burger, CJ)

o KYLLO v. United States (2001) (Scalia, J.)

• SEARCHES – PROTECTED AREAS AND INTERESTSo United States v. PLACE (1983)o Illinois v. CABALLES (2005) (Stevens, J.)

SEARCH WARRANTS AND EXCEPTIONS• Assuming that Police conduct amounts to search, what restrictions does the 4th amendm

impose?



o In order for search to be constitutional, 4th amendment requires search be supporby probable cause and that search be made pursuant to warrant or some exceptiowarrant requirements

• ISSUANCE OF SEARCH WARRANTS:o Issuance of search warrants must be by “neutral and detached” magistrateso Search warrants must particularly describe the place to be searched and person o

things to be seized

• Components of a Warranto Affidavito Warranto Return of the warrant - inventory

• Requirements of a Warrant:o 1) Probable causeo 2) Neutral and detached magistrate

Must have no general interesto 3) Describe the places to be search and the things to be seizedo 4) Knock and Announce

At common law officers were required to knock and announce with a warran

part of the reasonableness requirement of the 4th A “No-knock warrant” may occasionally be given if there are exigent

circumstances that the trial judge is permitted to issue one Richard Case – Wisconsin legislature made all drug warrants no-knock

warrants. Supreme Court said that you can not make them all automotive nknock warrants, needed to have the extreme exigent circumstances

• With Warrants look at:o Triggero Scopeo Time limit

o Rationale• EXCEPTIONS TO WARRANT REQUIREMENT:

o 5 Exceptions:

Exigent circumstances

Search incident to arrest

Vehicle/automobile

Consent

Plain viewo Questions to keep in mind:

What is trigger for exception, i.e., What circumstances bring it into play?

What is physical scope of exception, i.e., Where can they look and what cathey look for? How long does exception last, i.e., Any time limits?

What is Rationale behind exception?

• WARRANT EXCEPTIONS:

• WARRANT EXCEPTIONS – VEHICLE EXCEPTION

• WARRANT EXCEPTIONS – CONSENT SEARCHES:

• CONSENT SEARCHES BASED UPON THIRD PARTY CONSENT:

• PLAIN VIEW EXCEPTION:



o If officer lawfully present, he may observe certain items not within the“immediate control” of the arrestee or not within the scope of the lawfreason for being present which will nonetheless be subject to warrantlseizure

• PRESENT PLAIN VIEW REQUIREMENTS:o Officer lawfully presento Officer has lawful right of physical accesso Incriminating Character of Item immediately apparent (probable cause

exists to seize it)

• WARRANT EXCEPTIONS – PLAIN VIEW DOCTRINE:o Arizona v. HICKS (1987) (Scalia, J.)

INVENTORY SEARCHES, SPECIAL NEEDS SEARCHES & OTHERADMINISTRATIVE INSPECTIONS

VENTORY SEARCH:

AFETY INSPECTIONS

ORDER SEARCHESPECIAL NEEDS

• PUBLIC SCHOOLS & DRUG TESTING

• PUBLIC SCHOOLS & STUDENT SEARCHES

• DRUG TESTING

• VEHICLE CHECKPOINTS• SUPERVISION OF PROBATIONERS

• SPECIAL NEEDS OR CRIMINAL SEARCH

• ADMINISTRATIVE INSPECTIONS

• SPECIAL NEEDS vs. ORDINARY LAW ENFORCEMENT

- POLICE PRACTICES -

ARREST, SEARCH AND SEIZURE

ECTION 1: EXCLUSIONARY RULE

uestions

• Assuming violation of 4th amendment, what remedy if any do we impose?

• Are there any limitations on or exceptions to when this remedy will be imposed?

XCLUSIONARY RULE

• Wolf v. Colorado (1949)



• Mapp v. Ohio (1961)

MITATIONS ON & EXCEPTIONS TO EXCLUSIONARY RULE

• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED AS BASIS FOR QUESTIOTO GRAND JURY WITNESS

o United States v. Calandra (1974)

• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED IN CRIMINAL CASE AFTECONVICTION

o United States v. Janis (1976)o INS v. Lopez-Mendoza (1984)o Pennsylvania Board of Probation and Parole v. Scott (1998)

• EVIDENCE OBTAINED BY GOVERNMENT AGENTS, USED IN “QUASI-CRIMINAL” OCIVIL CASE.

o ONE 1958 PLYMOUTH SEDAN v. PENNSYLVANIA (1965)

• APPEALS – POST CONVICTION REVIEWo Stone v. Powell (1976)

ORE Limitations on Exclusionary Rule – STANDING & PRIVATE SEARCHES

• STANDINGo Who can challenge an illegal search?o GENERAL RULE:

Only person whose personal 4th amendment rights were intruded upby the police.

• THE STANDING REQUIREMENTo Alderman v. U.S. (1969)

Suppression of the product of a 4th amendment violation can be successfullyurged only by those whose rights were violated by the search itself, not bythose who are aggrived solely by the introduction of damage evidence.

o

WHAT LANGUAGE FROM THE 4

TH

AMENDMENT SUPPORTS THIS APPROACH?o Rakas v. Illinois (1978)

Passenger exception of privacy in a car- Standing requirement should be treated merely as a reiteration of the

basic point that a person may not successfully challenge a search unlhis own rights were violated.

o Minnesota v. Carter (1998)

One “who is merely present with the consent of the householder may not” cthe protections of the 4th amendment

o United States v. Salvucci (1980)

Abandoning the “automatic standing” rule:- Nothing inherently self-contradictory about a prosecutor charging a

defendant with possession of illegal contraband and also asserting thathe same defendant was not subject to an unconstitutional search (thhe lacked “standing”)

o United States v. Payner (1980)

Supervisory power can’t be used to prohibit evidence form third party searcwhen defendant lacked standing to contest search.

o Rawlings v. Kentucky (1980)

A person may not successfully challenge a search merely on the basis that has a possessory interest in the property seized during the search.

•

EVIDENCE OBTAINED BY PRIVATE PERSONS, USED IN CRIMINAL PROCEEDINGS



o STATE ACTOR REQUIREMENT

Burdeau v. McDowell (1921)

XCEPTIONS TO EXCLUSIONARY RULE

• Have seen that the Supreme Court has imposed limitations on kinds of cases in whichExclusionary Rule can be invoked and on who can invoke it.

• General Rule At least in state and federal criminal trials, illegally obtained evidence cbe admitted against Defendant whose personal 4th amendment rights were violated.

• EXCEPTIONS TO EXCLUSIONARY RULE ITSELF?o THREE EXCEPTIONS

1) GOOD FAITH

2) INEVITABLE DISCOVERY EXCEPTION

3) IMPEACHMENT EXCEPTION

• GOOD FAITH EXCEPTIONo United States v. Leon (1984)o LEON GOOD FAITH EXCEPTION:

“Evidence obtained pursuant to a search warrant later declared to be invalidmay be introduced at a defendant’s criminal trial in prosecutor’s case-in-chi

a reasonably well-trained officer would have believed that the warrant wasvalid.” (DRESSLER)

o Massachusetts v. Sheppard (1984) Warrant not invalid due to technical errocommitted by the issuing magistrate.

o Groh v. Ramirez (2004)o Illinois v. Krull (1987)

After LEON, exclusionary rule does not require suppression of evidenceobtained pursuant to objectively reasonable reliance on a statute later held violate 4th amendment.

o EVIDENCE OBTAINED BY VIRTUE OF CONDUCT OF NONPOLICE GERNMENT

EMPLOYEE, USED IN CRIMINAL PROCEEDINGS Arizona v. Evans (1995)

- LEON good faith exception applies to non-warrant searcho Maryland v. Garrison (1987)

Search warrant not defective for accidentally describing multiple unit structas on-unit structure as the validity of the warrant “must be assessed on thebasis of the information that the officer disclosed, or had a duty to discover disclose, to the issuing Magistrate.”

• INEVITABLE DISCOVERY EXCEPTIONo Nix v. Williams (1984)

• IMPEACHMENT EXCEPTIONo Walder v. United States (1954)

Use of illegally obtained evidence for Impeachment Purposes: “Defendant‘opened the door,’ for purposes of attacking the defendant’s credibility, toevidence of heroin seized from the defendant’s home, in his presence, in anearlier unrelated case.”

o United States v. Havens (1980)

Denial by defendant on cross-examination that she previously possessedparticular evidence of a crime allowed prosecutor, in order to impeach hercredibility, to introduce illegally obtained evidence that contradicted her croexamination claim

o

James v. Illinois (1990)



Prosecutor may not use statement obtained from defendant in violation of 4amendment to impeach a defense witness who provides testimony in conflicwith defendant’s statement

FRUIT OF THE POISONOUS TREE & RELATED MATTERS

• QUESTION Assuming Illegal search or seizure, and no limitation or exception applies, far does the taint of the illegality extend, i.e., how far down the chain of evidencediscovered, will exclusionary rule be applied?

o ANSWER Only as far as necessary to maintain sufficient deterrent against 4th

amendment violations

• FRUIT OF THE POISONOUS TREE DOCTRINE

o Silverthorne Lumber Co. v. United States (1920) genesis of the “taint” or “fruit the poisonous tree” doctrine

• FRUIT OF THE POISONOUS TREE – ATTENUATION DOCTRINE

o Nardone v. United States (1939) “fruit of the poisonous tree” and the“attenuation” doctrine

• Wong Sun v. United States (1963) verbal evidence as the fruit of illegal search and

seizure• What is the Appropriate Test according to the Wong Sun Court?

o More apt question in such a case is “whether, granting establishment of the primaillegality (the evidence) has been come at by exploitation of that illegality or insteby means sufficiently distinguishable to be purged of the primary taint.”

• Segura v. United States (1984) Warrant search as the fruit of an illegal entry andoccupation of the premises

• FRUIT OF THE POISONOUSE TREE – INDEPDENT SOURCE DOCTRINEo Murray v. United States (1988)

Independent source doctrine may apply if evidence is initially discovered

unlawfully but is subsequently obtained in a manner independent of the origdiscovery

• Brown v. Illinois (1975) confession as the fruit of an illegal arrest

• Dunaway v. NY (1979)o Reaffirming Brown v. Illinois: Miranda Warnings alone are insufficient to attenuate

taint of an unconstitutional arrest

• Taylor v. Alabama (1982) Application of Brown-Dunaway RULE

• New York v. Harris (1990)o Confession as the fruit of a Payton Violation:

Where police have probable cause to arrest a suspect, exclusionary rule doenot bar the state’s use of a statement made by defendant outside of his hom

even though statement is taken after defendant arrested in home in violatioPayton

o

• United States v. Crews (1980) – Identification of a person as a “fruit” of an illegal arre

• United States v. Ceccolini (1978) Witness as a fruit

• SUMMARY:o Supreme Court continuing to narrow the exclusionary rule and the fruit of the

Documents

Crim Pro i Outline