Crim Pro Outline2

7/29/2019 Crim Pro Outline2

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1. E.g. legally present officer sees a stereo, picks it up to read the serialnumber, learns by phone it is stolen the moment officer pick up

stereo he did not have PC for the search performed by picking it up

3. Officers must have a lawful right of access to the object itselfa. Officer sees pot plant in window from sidewalk cannot enter to seize, he has

no lawful right of entry

C. High Tech Devices Not in Public Use: when govt gains views NOT obtainable w/ naked eye, useof devices = search (Kyllo v. US)

1. Kyllo v. US: Thermal Camera. Both off the wall and through the wall are physicalintrusion.

D. Aerial Observation: When police us aircraft, anything police can see w/ naked eye fall withinplain view so long as the airspace ispublic & navigable (Florida v. Riley)

E. Other Senses: Plain view applies generally to smell, touch, sound1. Plain Touch: Police must have the right to do the touching in the first place

Probable Cause

A. When Its Required1. Before ajudge may issue a warrantfor search or arrest (4th Amendment)2. Beforepolice may make a warrantless search or arrest (Required to prevent avoiding

warrants)

B. Requirement for PC1. PC to Arrest: It must be reasonable likelythat

a. A violation of the lawhas been committed ANDb. The person to be arrested committedthat violation

2. PC to Search: It must be reasonable likelythata. The specific items to be searched for are connectedwith criminalactivitiesb. These items will befound in the place to be searched

3. Less Than 50-50 Chance: As long as police have particularized suspicion regardingexistence of fact X, they need NOTreasonably believe X is more likely than notto get PC

a. 1/3 chance suffices, e.g. cop stops car with three people, 1 bag of coke; hecan arrest all three where equally likely it is anyones (Maryland v. Pringle)

C. Inadmissible Evidence Allowed: Any trustworthy info may be considered for determining PC,even if the info wouldnt be admissible

D. Only evidence known to magistrate at time of issuance is considered in reviewing whether PCexisted

E. Factual Errors1. Reckless disregard for the truth invalid


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2. Honest and reasonable police error Good faith exception (Maryland v. Garrison3rdfloor double apartment)

Particular Information Establishing Probable Cause

A. Information From Criminal Informants: Totality of the Circumstances test (Illinois v. GatesFla. Drug run)

1. Illinois v.Gates (Fla. Drug run): Overruled Aguilar-Spinellitwo-factor test that relied onveracity and basis of knowledge

2. Factors to Considera. Prediction of future eventsb. Known reliability of informantc. Basis of knowledge

B. Non-Criminal Sources: courts are more lenient1. Other Cops: Where Cop1 acts in response to statements from Cop2, PC only exists only

if Cop2 acted with PC

Search Warrants

A. Who May Issue: neutral and detachedmagistrateB. Ex-Parte (one-sided) Proceeding: Searchee does not have the right/ability to contest the

issuance

C. Particular Description: 4th

requires the warrant contain aparticular description of thepremises to be searched, and the things to be seized even an officer completely unfamiliar

with the case would understand where to search and for what

D. Execution: Procedures must not be unreasonable1. Entry w/o Notice: Typically, knock and announce is required

a. Preventing Destruction of Evidence: Officers may constitutionally enter w/oknock and announce if there is threat ofimmediate destruction of evid.

1. Richards v. Wisconsin: Hotel maintenance mandecision not to knockand announce must be reasonable

b. Physical Danger to Police: Can justify no knock and announce2. Search of Persons on Premises: Armed with only a search warrant, police may NOT

automatically search everyone on the premises

a. Unless police have PC to believe named items are on his person


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b. Or unless person someone tries to leave and items are ones that could becarried away

3. Restricted Area: Police must confine to area specified and only look in places whereitems might possibly be/fit

4. Body Searches: Courts will determine reasonableness by weighing privacy interestagainst societys interest in the search

5. Good-Faith Exception: If invalid warrant is reasonably relied on, exclusionary ruledoesnt apply (US v. Leon)

Warrantless Search and Seizure

Arrest

A. Not Generally Required: Even where police have sufficient time to get a warrant, it isntrequired (US v. WatsonPostal inspector felony credit card sale in presence)

B. Entry of Dwelling: Arrest warrant will generally be required for police to enterprivatepremises to make an arrest

1. No Exigent Circumstances: If no EC, the police may NOT enter private home forwarrantless arrest (Payton v. New Yorkpolice broke in and saw .30 shell)

2. Exigent Circumstances: No warrant is necessary where it would be impracticable todelay entry&arrest (Atwater v. Lago Vistachild seatbelt)

a. Destruction of Evidence, physical danger, hot pursuit (felony)C. No exception for fine-only/minor crimesanycrime committed in officers presence is PC for

arrest (Atwater v. Lago Vista)

D. Probable cause doesnt need to be for the offense stated at time of arrest, as long as uponreview there was PC for any crime

E. Deadly Force: Police may not use deadly force unless the suspect poses immediate threattothe officer or others (Tennessee v. Garner)

1. Police need not abandon chase even if that is safer alternative to public and officer asopposed to deadly force (Scott v. Harris)

SILA

A. Person: Custodial arrest gives rise to authority to search a person. Officer need not think D isarmed (US v. Robinsonheroin in cig pack)

B. Police may generally search the area within controlof arrestee


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a. Driver Possibly Dangerous: e.g. police are interrogating suspect withoutarresting him, if they reasonably believe that he might gain access to a weapon

upon returning to his vehicle, they may searchvehicular stop and frisk

b. PC to Search: If there is PC to believe the vehicle contains contraband orevidence of crime, police may search any part of vehicle where evidence might

plausibly be found

5. EXCEPTION: Inventory searches are permissible without pc or a warrant (Colorado v.Bertine)

Exigent Circumstances

A. Generally: Can justify warrantless searches, even where SILA exception to warrant requirementdoesnt apply

B. Destruction of Evidence: If police have (1) PC & (2) they reasonably believe the search/seizureis necessary to prevent the possible imminent destruction of evidence

1. Can be seizure of person, i.e. not letting D back into house while police try to secure awarrant

2. Police-Created Exigency: If the polices conduct createdor manufacturedthe threat ofdestruction of evidence, the police will need a warrant Police created exigencies are

not true exigencies

a. Narrowly Interpreted: This exception will only nullify polices right to enterw/o a warrant if the police gain entry to premises by means of actual or

threatened 4th

violation (Kentucky v. King)

1. When police have PC to get a warrant, no lawful conduct they engage incan be held to create exigency

2. Objective factor test; not subjective intentbad faith irrelevant3. Does not matter if exigency is a reasonably foreseeable byproduct of

police investigative tactics, so long as police act reasonably under 4th

4. Doesnt matter if reasonable person would believe entry was imminentand inevitable by police tactics

5. Test requires more than mere causation6. Doesnt matter if cops had time to secure a warrantvalid tactical

reasons for not doing so


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7. Occupants who choose not to stand on their constitutional rights butinstead elect to attempt to destroy evidence have only themselves to

blame for the warrantless exigent-circumstances search that may

ensue. (Kentucky v. Kinghot pursuit; wrong apartment)

C. Danger to Life: Warrantless search may be allowed where danger to life is likelyif police dontact fast

D. Hot Pursuit: If police are pursuingfelony suspect, police can enter to search for suspect andweapons

1. Plain-view often gets tied inVehicles

A. Two Special Exceptions1. Search at Station After Arrest: when police arrest driver and take him and car to

station, no search warrant is required

2. Field Search for Contraband: Where the police have PC to believe a car is being used totransport contraband, and stop it, they can search the car and any closed containers in

the car; allowable even without impounding the car (California v. CarneyGay pot

motor home)

a. Passengers Belongings: Once police have PC to believe car containscontraband, they may search closed containers that could hold that type of

contraband, even if containers belong to passengers, even if there is no PC to

believe passenger is involved (Wyoming v. HoughtonMeth, syringe, purse)

1. Police cannot search passengers person in that situation, thoughb. PC for Container Only: Even if police only have PC for closed container inside

car, they may stop the car and seize the open container w/o a warrant

(California v. Acevedo)

B. Actions Directed at Passengers: Legal stop and/or arrest does NOT give officer right to searchthepassengers person, unless the officer has (1) PC to believe passenger possesses evidence of

a crime OR (2) PC to arrest the passengermaking it a SILA

1. What Officers CAN do to Passengersa. Demand passenger step out of vehicle, for officer safetyb. If officer has reasonable fearthat passenger is armed/dangerous, he may frisk

and pat down, for officer safety

c. If officer has right to search vehicle, hey may search any containerin the carthat might contain thing being looked for, even if he knows container belongs to

passenger and he has no PC to believe item is in passengers container


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d. Terry pat downC. Lack of PC

1. PC Needed for On-Scene Search: Police need PC to believe they will find incriminatingevidence or contraband; Unless driver is arrested AND (1) not restrained, i.e. access to

vehicle OR (2) reason to believe theyll find evidence relating to arresting offense

2. Impoundment: Police can search impounded vehicle without a warrantLesser Intrusions: Stop & Frisk

A. Generally: Sometimes police opt to briefly detain rather than arrest;1. Right to Stop: When cop observes unusual conduct, which leads him to reasonably

conclude that criminal activity is afoot, he may briefly detain in order to inquire; NO PC

NEEDEDreasonable suspicion suspicion based on objective facts, that individual isinvolved in criminal activity

a. Reasonable Suspicion: More than inchoate and unparticularized suspicion orhunchbased on specific and articulable facts taken together with rational

inferences from those facts.

b. Florida v. J.L.: Police got anonymous tip that JL had gun; frisked based on thatalone. Court said anonymous tip alone is not enough for a S&F

c. Fla. V. Royer: Suitcasebackroom search. Police may notseek to verifysuspicions by means approaching conditions of arrest(reasonable person test).

An investigative detention must be temporaryand last no longer than

necessaryto effectuate the purpose of the stop. Investigative methods

employed should be least intrusive reasonably available to verify or dispelsuspicion. States burden to show the seizure was sufficiently limited in scope

and duration. Statements given during illegal detention are per se involuntary.

Because officers had only reasonable suspicion not probable cause to believe he

was transporting narcotics until they opened the suitcase and found pot, they

had no legal right to put Royer in custody.

2. Protective Frisk: Once legal stop is made, and nothing during the encounter dispelsreasonable fear for his or others safety, the officer may conduct a carefully limited

search of the outer clothing of the suspect in an attempt to discover weapons. (Terry v.

Ohio)

B. Terry Stop/Search of Possessions: Police may temporarily detain possessions on reasonablesuspicion to investigate; investigation must be appropriately limited in scope and duration. (US

v. Placeluggage; 2 airports; 3 days)

C. Terry Stop/Search of Vehicle: Rule allows for the stop of a vehicle under standards above1. Police may searchpassenger compartmentfor weapons even if suspect is no longer

inside car, if:


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a. The officers reasonably believe that the driver is dangerous and may gaincontrol of weapons that may be in the car, AND

b. They look only in those parts of the passenger compartment where weaponsmight be placed or hidden

D. Degree of Probability: Something less than PCto arrest or search is required for a Terrystop1. Vague suspicion is not enough (Brown v. Texas)2. Modest suspicion is enough; totality testto analyze all of Ds behavioreven lawful

behavior

3. Flight as Cause for Suspicion: might be enough to justify search; take into accounttotalitythough (Illinois v. Wardlowflight & shady neighborhood)

4. Informants Tip: Taken into account under totality testa. Prediction of Future Events: key factor is if CI predicted likely otherwise

unkowables

b. Special Knowledge: Not enough that CI knows e.g. suspects physicalappearance/present locationthere needs to be indicia of reliability

E. What Constitutes a Stop?1. Reasonable Person Test: In view oftotality, would a reasonable person believedhe

was not free to leave

a. Factors:1. Threatening presence ofseveral officers2. Display ofweapon by officer3. Shows ofauthority4. Physical touching by an officer5. Language or tone indicating that compliance might be compelled

2. ChaseseizureF. Stop v. Arrest: at some point stop is sufficiently long and intrusive so as to constitute arrest Arrest requires PC v. Stop requires RS

a. Factors1. No longer than reasonably necessary (than circumstances justify)2. No more intrusive than needed to verify or dispelthe officers suspicion

a. Can require oral identification, Drivers license?3. Transporting D to another spotpolice cannot transport someone to

station without PC (Dunaway v. NY)


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G. Scope of Frisk: Must be limited to a search for weapons, or other sources ofdanger. CANNOTbe a search for contraband or evidence

1. Armed or Dangerous: Search is only permissible if officer has reasonable beliefthat Dis armed/dangerous. If Ds hands are empty, he gives no indication of possessing a

weapon, he makes no gestures indicating an intent to commit assault, and acts generally

non-threating, the officer probably may not conduct even the basic pat-down

H. Full Disclosure: Police need not advise stopee of his right not to cooperate (US v. DraytonBus)

Consent Searches

A. D Doesnt Need to Know he Can Refuse: consent is effective whether knowing & intelligent ornot (Schneckloth v. Bustamonte5 guys brothers car)

1. Voluntary: to be effective, must be voluntaryrather than product ofduress orcoercion Voluntariness is a totality of the circumstances test, knowledge of right to

refuse is one factor

2. Custodial Consent: even if consent unknowing of right to refuse is given in custody, stilleffectivedifferent from Miranda analysis

B. Claims of Authority to Search: Courts distinguish betweenfalse claims of present authorityand threats of future action; false claim of present authority is much more likely to invalidate

the voluntariness

1. False Claim of Present Authority: Consent gained after police falsely state they have awarrant is invalid

2. Consent Induced by Reference to Invalid Warrant: Police truthfullystate that theyhave a search warrant, but the warrant is invalid (e.g. rendered with lack of PC), the

consent is invalid

3. Threat to Obtain a Warrant: Analysis depends whether police have grounds forwarrantif they do then consent will be effective; if they dont have grounds for a

warrant it is likely that the consent will be nullified

C. Misrepresenting Identity: If police are undercover, deception does not destroy consentD. Physical Scope of Search: Where Ds consent is reasonably interpreted to apply only to a

particular physical area, a search extending beyond that area will be invalid unless it falls under

another exception to the warrant requirement

Consent by Third Persons

A. A may not consent to a search that would violate Bs EoP, UNLESS A & B exercise joint authorityover the premises


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B. Joint Authority: Joint access to AND Joint expectation of privacy in the place to be searcheda. E.g.: roommates, as to common area; husband and wife; social guest, where

homeowner gives consent to search and evidence is used against the guest

1. D is Absent When 3rd Party Consents: Consent is generally effective if 3rd party (1)actuallyhas or (2) is reasonably believed by police to have joint authority over thepremises

a. Reasonable Mistake: Even if police were mistaken about 3rd partys authority,so long as that mistake was reasonable, the search will not be invalidated

even if 3rd party flat out lies about being a resident there

2. D is Present and Objecting: 3rd party consent is NOT binding on D; where D and 3rdhave equal claim to premises

a. So long as parties arent living in recognized hierarchy (Georgia v. Randolph)


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5th AmendmentCustodial Interrogations

Miranda

Dickersontells us Miranda is constitutional, not just prophylacticexclusion is prophylactic

though; not a const. violation

Chaveztells us that the violation ofMirada occurs if/when statements are introduced in

criminal trial. Narrow view of Miranda, compulsion doesnt violate self-incrimination. Miranda

warnings are just a police tactic for protecting the 5th right against self-incrimination. If the

constitutional right itself was not violated then no harm no foul.

A. Components of MirandaProtections dont kick in until D is in custody AND interrogated1. Custody: would a reasonable person given the totality of circumstances feel free to

leave?

a. Factors to Consider:1. Location of interrogation (foreign or familiar to suspect?)2. Duration3. Whos present?

b. Miranda sought to neutralize an atmosphere viewed as inherently hostile andcoercive

1. Suspect is in a police dominated setting cut off from the worldc. Only applies in custodial situationsd. Minor Suspect: age comes into determining whether a reasonable person in

the suspects position would believe he was in custody (J.D.B. v. North Carolina)

2. Interrogation: Questioning initiated by police officers.a. Protections are triggered by interrogationb. Police are allowed follow-up questioning to clarify a volunteered statementc. Innis(handicapped shotgun) : 2 part test for whether interrogation occurred

1. Words or actions on the part of police that the police should know arereasonably likely to elicit an incriminating response from the suspect.

a. Innis:Court held that officers could not have expectedelicitation. They had no reason to know Innis was peculiarly

susceptible to an appeal to conscience concerning handicapped

safety

2. Does the suspectperceive that he is being subjected to psychologicalpressures i.e. coerced?


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a. Perkins(undercover prisoner): Miranda doesnt apply becausesuspect did not perceive that he was being questioned, thus not

feeling coercive pressures that trigger protections.

3. Substance and Adequacy of Warningsa. The 4 warnings are deemed essential to counteract compelling pressures

inherent in the process of custodial interrogation

b. Fully effective equivalents are permissiblecourt was not establishing aconstitutional straitjacket

c. No amount of circumstantial evidence will stand in the stead of warnings4. Invocation

a. Right to Counsel1. Must be clear and unequivocalpolice are not required to clarify

ambiguity (e.g. maybe I should talk to lawyer insufficient)

2. 6th Amendment Invocation during court appearance does not constituteMiranda invocation when he is subsequently questioned about a

different crime.

3. Must occur during or immediately before interrogation4. The right is to have a lawyer present during questioning, not just a

right to consult with lawyer prior to questioning (Minnick v. Mississippi)

1. WaiverTotality of the circumstancesa. Voluntariness of waiver and of confession are analyzed separately. Even after

voluntary waiver statements can be suppressed if coerced.

b. Knowing & Intelligent: Was the waiver made with an awareness of the rightsbeing abandoned and the consequences of doing so?

1. D understood that he had right not to talk to police or to talk only withcounsel present

2. D appreciated the consequences of foregoing these rights and speakingto police

c. Voluntary Waiver: Product of a free and deliberate choice rather thanintimidation, coercion, or deception (Moran v. Burbine)

1. Moran v.Burbine(locked out attorney): D must invoke Miranda rightsfor himself. Ds waiver was still knowing an intelligent absent the info


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that lawyer was retained. Events outside presence of D cannot have

bearing on his capacity to comprehend and knowingly relinquish rights.

2. Colorado v. Connelly(God told me to confess): sole concern of5

th/Miranda is coercion. 5

thprivilege is not concerned with

moral/psycho pressures outside official realm


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Public Safety Miranda Exception

A. Generally: Miranda warnins are unnecessary where the questioning is reasonably prompted bya concern for public safety.

1. Objective Standard: existence of a threat to public safety is objective test

Waivers and Invocations ofMirandaRights5th Amendment Right to Counsel

A. Generally: Suspect may either waive or invoke his Miranda Rights1. 2 Different Rights: The right to have questioning ceaseuntilconsultation w/ lawyer

and the right to remain silentare separate and may be separately invoked/waived

B. Waiver: must be knowing, intelligent, and voluntary1. Knowing & Intelligent: Was the waiver made with an awareness of the rights being

abandoned and the consequences of doing so?

1. D understood that he had right not to talk to police or to do so only withcounsel present

2. D appreciated the consequences of foregoing these rights and speakingto police

a. The fact that suspect is answering questions is insufficientalone to constituteproof of knowing and voluntary waiver. There must be affirmative evidence of

bothBoP on prosecution.

2. Voluntary: Product of free and deliberate choice rather than intimidation, coercion,or deception (Moran v. Burbine)

a. Moran v. Burbine(locked out attorney): D must invoke Miranda rights forhimself. Ds waiver was still knowing an intelligent absent the info that lawyer

was retained. Events outside presence of D cannot have bearing on his capacity

to comprehend and knowingly relinquish rights.

b. Colorado v. Connelly(God told me to confess): sole concern of 5th/Miranda iscoercion. 5th privilege is not concerned with moral/psycho pressures outside

official realm

3. Express Waivers: signed waiver form, orally conveys understanding of rights andwillingness to talk anyway. Valid in absence of coercion.

4. Implied Waivers: In some cases waiver can be clearly inferred from the actions andwords of the suspect

a. Answering of Questions: Suspect must indicate that he understands his rightsand then answers questionsprobably waives both


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b. Additional Factors1. D wasfamiliar with justice system; having been arrested and

interrogated on multiple recent occasions

2. D answers some questions but refuses to answer othersmakes itlikely that D understands he doesnt have to speak

c. Test1. Suspect was given Miranda warnings2. Suspect understoodthe warnings3. Suspect answeredquestions following warnings

C. Invocation must be clear and unequivocalofEITHER Miranda right1. Must invoke during or right before questioning2. Police Can Keep Trying: Until a clear and unequivocal invocation of either right hasoccurred, the police may continue to question the suspect and/or repeatedly request a

waiver.

a. Berghuis v.Thompkins: 2.75 hour interrogation, suspect sat silently withoutclearly invoking right to remain silent. Do you pray to god to forgive you for

shooting that boy down? Yes. Court said he failed to invoke

D. Waiver After Successful Invocation1. Right to Counsel: Interrogation must cease until attorney is present, unless suspect

initiates (Edwards v. Arizona)

a. Edwards v. Arizona: Police may resume interrogation even in the absence ofcounsel if the suspect initiates communication. Edwards invoked and at a

second police-initiated meeting they played tape of coconspirator implicating

him. Court rules under Innis that this was thefunctional equivalent of

interrogation and his subsequent admission was inadmissible. 3 factor Test

for Edwards satisfaction

1. Counsel was made available to D OR1. Suspect initiated conversationAND2. Knowing, intelligent, and voluntary waiver

b. Edwards rule is designed toprevent badgering a D into waiving previouslyasserted Miranda rightsstatements made in violation of this rule areper se

involuntary


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b. Police may continuequestioning without clarifying suspects intent6th Amendment Right to Counsel

A. Voluntariness of Confession: A confession obtained after 36-hour interrogation is deemedinvoluntarycompelledgiven totality of circumstances. (Ashcraft v. Tennessee)

Entitlements of Right to Counsel

B. Massiah Doctrine: primary concern is secret interrogation equivalentto direct policeinterrogation

1. Massiah v. US (Car-Friend-Wire): D had been indicted and retained counsel, madeincriminating statements to wired codefendant in car. Court held that once adversarial

judicial proceedings have commenced,Govt efforts to deliberately elicitstatements

from him in absence of his attorney (open or covert elicitation) violate the 6th. 6th RtC

meaningless if circumscribable

2. Brewer v. Williams (Des Moines I): SCt. said Williams was denied 6th right to counsel,after arraignmentbecause police deliberately elicitedincriminating statements.

3. UNLIKE 5th AMENDMENTa. Does not require finding of police coercionb. Does not require custody OR interrogationc. Looks to officer intent, 5th looks at susceptibilities and perceptions of suspectd. 6th is offense specific

C. Deliberately Elicited: Does not matter that no questioning occursquestion of intent1. Jailhouse Snitches

a. US v. Henry: FBI informant in Henrys cell. Court stuck down saying FBIintentionally set up a situation likely to induce Henrys self-incrimination

informant was not a passive listenerbecause he stimulated convos

b.

Contrast w.Kuhlman v. Wilson: Informant did nothing to stimulate convosbeyond establishing a listening post, court said he was passive listener

D. Initiation of Judicial Proceedings: Triggering even for application of Massiah is Inidcitment,arraignment, or preliminary hearingthen the suspect isformally accused


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Waiver of 6th Right to Counsel

A. Appointed v. Retained: Same standard appliesB. Knowing, Intelligent, & Voluntary: Prosecution must show by preponderance that D acted

knowingly and intelligently

1. Easier Bar to Meet Than 5th: Usually Miranda warning + not asking for counsel will be avalid waiver of 6

th

C. No 6th Amendment Cutoff: Court has said Edwards provides enough protectionwhichterminates interrogation until counsel is provided or suspect initiates (Montejo v. LA)

D. Waiver After Pre-Trial Appointment: Where D has attorney and trial is impending, police canquestion the suspect outside presence of counsel. Police may askthe suspect whether he is

willing to answer questions; his willingness to answer will constitute a waiver of 6th

right to

counsel (Montejo v. Louisiana)

1. Montejo v.Louisiana: Montejo was appointed counsel, which he neither requested nordenied. Later that day police read Montejo his Miranda rights and he agreed to go

along on trip to locate murder weapon. In car he wrote inculpatory apology letter.

Letter was admitted.

1. Michigan v. Jackson: Brought Edwards rule to 6th a request forcounsel at arraignment should be treated as invoation of 6

thrt. To

counsel at every critical state no subsequent police-initiated

interrogation

a. Montejo Holding: Overruled Jackson. The fact that someone is representeddoes not bar police from initiating contact whether that D has dont nothing at

allto express his intentions in relation to his 6th

Amendment rights. Maybe that

D would be perfectly amenable to speaking with police. Edwards and Jackson

were meant toprevent badgering a D into changing his mind. A D who never

asked for counsel has not yet made up his mind.

1. i.e. Where D has not asserted his 5th right to counsel that must beinvoked, and relies on 6

thright to counsel that automatically

attaches at arraignment, police may initiate interrogation


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Exclusionary Rule and Derivative Evidence

A. Generally: Not constitutionally required, judge made police deterrentB. Fruit of the Poisonous Tree Doctrine

1. Derivative evidence follows an analysis similar to but for and proximate causation2. General Rule: inadmissible where evidence is discovered by exploitation of initial

illegality; obtained by means sufficiently removedfrom the initial illegality its ok

3. Attenuation: Courts look for significant intervening actthat breaks causal chain. Courtwont ever permanently disable a cooperative witness. Court wont apply the doctrine

in a way that wouldpermanentlydisable a cooperative witness

4. Analysis: Courts weigh deterrent effectand the societal costs of excluding relevantevidence

a. Time between illegality and acquisitionb. Occurrence ofintervening acts; free choice weighs heavyc. Flagrancyof initial illegality.

5. Attenuation can also occur when suppression wouldnt serve the interest protectedbythe constitutional mandate that was violated.

a. Hudson v. Michigan (knock-2second wait): Knock-and-announce rule is toprotect human life. The right violated is sufficiently attenuated from the

derivative evidence.

6. Limitations on Derivative Evidencea. Indpendnet Source: derivative evidence wasnt obtained solely by exploiting

original illegality

1. Murray v. US: Police illegally entered Boston warehousegot warranton sufficient PC without mention of illegally seen drugs.

b.

Inevitable Discovery: Would have ultimately been discovered anyway

1. Nix v.Williams (Des Moines II): Court decided search party would havefound body eventually anyway. Inevitable discovery must rest on

readily verifiable basis in fact.

C. Miranda Violation Poisoned Fruit


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1. Statements obtained in violation of Miranda are not admissible but derivative evidenceis admissible that stems from the violative statement

2. Missouri v. Seibert (Midstream recitation of warnings): Once the cat is out of the bagsubsequent warning and reobtaining confession is no good

3. US v. Patane (felon-driveway-firearm): D questioned without warnings. Under Chavez,so long as the statement wasnt admitted at trial there is no violation of self-

incrimination. Derivative evidence from unwarned statement is admissible.

D. Exceptions1. Good Faith Exception: Reasonable reliance on search properly issued search warrant

will not mean exclusion

a. Reliance on Non-Existent Warrant: If police reasonably but mistakenly believethere is outstanding arrest warrant SILA evidence wont be excluded where

warrant was clerical error. So long as nonrecurring and attenuated negligence

by police (Herring v. US)

2. Exception to Knock and Announce: See Hudson supra

Line-Ups, Show-Ups and Other Pre-trial Identification

Documents

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