Criminal Procedure Outline

7/21/2019 Criminal Procedure Outline

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Table of Contents

Federalism ……………………………………………………………….. 3

Theories of Incorporation………………………………………. 3

Arrest, Search and Seizures (4 th Amnd………………………………... !

Four "uestions…………………………………………………... !#efinition of Seizure…………………………………………….. !

#efinition of Search.…………………………………………….. !

$robable Cause …………………………………………………. !

#efinition of $robable Cause…………………..……… !

%e&uirements for $C………………………….………. !'

Tips )stablishin* $C for +arrants…………………… '

%easonable Suspicion …………………………………………...

#efinition of %S ………………………………………...

$lain-ie #octrine ……………………………………………... /

$rotected Areas ………………………………………………… 0

)1pectation of $ri-ac2 ……………..…………………. 0

#efinition of )$ …………………………….. 0

Curtila*e ………………………………………. 5

)lectronic #e-ices ……………………………. 5

Third $art267o-8t A*ent ……………………..

+arrants on 9on'Suspects …………………...

4th Amnd )1clusionar2 %ule …………………………………... :

)% 7ood Faith )1ception for +arrants …………….. :'3

4 )1amples of ;ad Faith ………………….….. 3

<noc= > Announce …………………………………… 4

Fruit of the $oisonous Tree ……………………...…… 4

FT$T )1ceptions …………………………… 4

)% )1ception to Impeach ……………………. 4

Standin* ……………………………………….. 4'!

Search > Seizure ith +arrants ……………………………………....

Search > Seizure ith Consent ………………………………………...

?alidit2 of Consent ……………………………………………..

?oluntariness ……………………………………………………

Co'ccupant Consent …………………………………………. /

+arrantless Arrest > Searches of $ersons …………………………… 0

3 @ustifications for +6S S6S …………………………………… 0

Search Incident to Arrest )1plained……..…………………… 0

9o +arrant for Arrest in $ublic Areas ………………………. :5

Search Incident to Arrest (Case a …………………...……. :5

$lain-ie #octrineB Subecti-e -. becti-e %eason ………… :5':

<illin* Fleein* Suspects ……………………………………….. :

+arrantless Search > Seizures of $remises ………………………….. ::

)1i*ent Circumstances ………………………………................ ::

+arrant %e&uirement for the Dome …………………….…… ::

imitations of SIA in the Dome ………………………………. ::

)1i*ent CircumstancesB #estruction of )-idence …………… ::

Esin* Technolo*2 ithout a +arrant ………………………... ::':3

+arrantles Search6Seizures of ?ehicles and )ffects ………………….. :4

+arrant )1ception for Cars …………………………………… :4

Search of Containers Found in Cars …………………………... :4

%ationale for +arrant )1ception of Cars …………………….. :4':!



SIA of a ?ehicle …………………………………………………. :!':

Containers ;elon*in* to $assen*ers …………………………… :

)$ of $assen*ers ………………………………………………. :

Arrest for Citable ffenses ……………………………………... :':

Stop > Fris= (%easonable Suspicion ……………………………………. :/

S>F Test ………………………………………………………….. :/

#o Tips %S …………………………………………………….. :/

#oes %unnin* from Cops %S ………………………………… :/

en*th of Seizure ;efore it ;ecomes Enlaful ……………….. :/

Seizure of )ffects ………………………………………………... :0

%i*ht to Counsel (th Amdn …………………………………………….. 35

+hen %TC is Tri**ered ………………………………………… 35

Indi*ents …………………………………………………………. 35

%oad to 7ideon ………………………………………………….. 35'3

%TC Incorporated ………………………………………………. 35'3

Appeals …………………………………………………………… 3'3:

$olice Interro*ations > Confessions …………………………. 33

#ue $rocess and ?oluntariness …………………………………. 33

+hen %TC Attaches ……………………………………………... 34'3!

?alues A*ainst Self'Incrimination …………………………….. 3Giranda …………………………………………………………… 3

Giranda +ai-er …………………………………………. 3

Custod2 for Giranda ..…………………………………… 30

Interro*ation for Giranda ………………………………. 30

+hen Giranda is not %e&uired …………………………. 30'45

+ai-er After Giranda Das ;een In-o=ed ……………… 45

Giranda %TC …………………………………………….. 45

)1ceptions to Giranda ……………………………………………. 4

$ublic Safet2 ………………………………………………. 4

9o FT$T for Giranda ………………………………….. 4'4:

: Interro*ations (nl2 :nd Is ?alid ……………………… 4:

<noin* > Intelli*ent +ai-er of Giranda ……………… 4:)licitation ………………………………………………….. 43

2



C%IG $% ETI9)

II. AG)%ICA9 7?8TB 5. FE9#AG)9TA FAI%9)SS, F)#)%AISG, A9# TD) STAT)S AS A;%AT%I)SB #E) $%C)S

A. Background and Debate1. Bill of Rights: first 10 amendments limit power of federal govt !not the state" against citi#ens $ held earl% oto appl% &'() to fed govt2. 1*th Am.: D+ clause important to incorporation $ issue was to what e,tent the D+ clause incorporated the Bo provisions to restrict state action-

B. heories of /ncorporationummar%:

: D+ prohibits state encroachment on the principles of 3ustice so rooted in the traditions and conscience our people as to be ranked fundamental4 ! Palko"/: D+ clause incorporates all of the BoR provisions to states/: a state is bound b% a procedure if such a procedure is necessar% to an Anglo5American regime of orderedlibert%.4 ! Duncan"

1. Fundamental Fairness !"Development: 6 re3ected idea that D+ simpl% means legall% authori#ed action4 !that govt was restrainedonl% what was on the books"7 b8c legislature could 3ust change the laws.

a. Palko v Connecticut !19;": < got life at trial for =52> state appealed via statute. ?igher court cited erro

in lower decision including bad distinction in 3ur% instructions b8w =51 and =527 and remandon second trial < sentenced to death for =51. < argues double53eopard% clause in @th A isincorporated in D+.

?(D: !conte,t5sensitive" in this case7 allowing < to be re5tried upon finding of serious errors is noviolation of D+ !6ourt doesnt hold if tate would be so proscribed if there were '& serious errorR&(: !not reall%"7 but reiterates and clarifies argument !as below"7 and also discusses a rivalargument7 total incorporation4 !as below"-erruled b2B ;enton -. Gar2land

b. The FF argument : D+ neither comprehends the BoR nor is confined to them> D+ prohibits stateencroachment on the principles of 3ustice so rooted in the traditions and conscience of our people as to beranked fundamental4 !+alko"

2. Total Incorporation !/": D+ clause incorporates all of the BoR provisions to states.

. Selective Incorporation !/"laws in and /:

:1. unpredictable: a right deemed fundamental toda% ma% not be so tomorrow2. wastes govt resources. gives 3udges too much discretion

/:1. doesnt make sense te,tuall% $ and wh% didnt the ounders simpl% sa% so-2. hinders 3udicial discretion. limits D+ to whats in the BoR !doesnt recogni#e implied rights"*. reall% clearer and less sub3ective than - BoR language is vague in itself.

b. Adamson v CA

FactsB Adamson was convicted of murder. During the trial7 the state had commented to the 3ur% on

his failure to take the stand. IssueB hether a states comment at a state criminal trial on the failure of a defendant to take the

stand at trial is a violation of the defendants @th amendment privilege against self5incrimination. Gaorit2 %easonin*B Although the 1*th amendments due process clause guarantees a right to a

fair trial4 in a state criminal trial7 there is no ground under +alko to make the self5incrimination



privilege one of the fundamental4 rights that is incorporated in the 1*th amendment and appliedthe states.

-erruled b2B 7riffin -. California

c. Duncan v Lousisiana: 19C: black bo% slaps white bo% on the elbow. Black bo% given trial with no 3ur%/ssue: /s the Cth Amend. Right to a 3ur% trial incorporated to the states via the 1*th Amend.- )es.The test under SI : whether given this kind of s%stem a particular procedure is fundamentalE whether 7 tis7 a procedure is necessary to an Anglo-American regime of ordered liberty.4 'otes on /:

1. ounds in theor% like 7 but in practice its like / !an%thing in BoR is most likel% fundamental tAA regime of ordered libert%"2. / applied differentl%> i.e. if a Right in the BoR is fundamental4 then the entire provision applie

the tatesEincluding all cases that interpret it. /n other words7 / a privision applies7 it appliesFA6() the same as if it would appl% in a federal conte,t.

+roblems with /1. 'o reason to adopt it2. (ip service to 7 but ever%thing becomes fundamental4. Allows administrative convenience to dictate*. (ittle attention paid to differences b8w state8fed s%stems@. =a% water down provisions

Nevertheless, SI is the approach used today.

%: trial b% 3ur% in criminal cases is fundamental to the Anglo5American scheme of 3ustice7 so 1*th Aguarantees a right to 3ur% trial in all criminal cases !if the%d get a 3ur% were the% to be tried in fed. ct."

*



I?. A%%)ST, S)A%CD > S)IHE%) B 4TD AG.

A. ? *? A='D=' &GRG/

1. A9ASIS : A'R ? H. H1: +D A D&/'I ? A((ID 8- J =K B I&G.H2: A / A S6S- / )7 ?' H. ? AR ? 8 6A !LAM IR'&&D7 R/()7 LAR&7 6."H: A ? 8 %)AS9A;)- / '&7 ?' H*. )7 ?' /'.? AR ? +6 6A !+/'((/7 IA

+R/'I(" N ? R 6A !RR)"H*: / E9%)AS9A;)7 ?' ?A- )JCESI9A% %E), % )JC)$TI9-

7enerall2B

5 s8s w8 warrant presumed reasonable. !< must prove unreasonable"5 s8s w8o warrant presumed unreasonable. !Iovt must prove reasonable"5 Reasonable: common law> *th Am.> umbrella !D+ N +"

Seizure defined: 5&f +erson: 5Ohenever a police officer accosts an individual and restrains their freedom to walk awa%. Terry at 222.5 &nl% when the officer7 b% means of ph%sical force or show of authorit%7 has in some wa% restrained the libert% of a citi

ma% we conclude that a sei#ure has occurred. Terry7 fn. 1C at 222.&f +ropert%: 5 Ooccurs when there is some meaningful infringement with a persons possessor% interests in that propert%.

5 hen are %ou sei#ed for *th Amendment purposes when a reasonable person wouldnt feel free to leave

decline an officers rePuest to answer Puestions. !Barbri Definition"

aro at 99.est: taking into account all of the circumstances surrounding the encounter would reasonable person feel free to lea!e"

Search defined: 1. that a person has e,hibited an actual !sub3ective" o+7 and2. that the e,pectation be one that societ% is prepared to recogni#e as reasonable. at! at 90

?arlan concurrence.In determinin* hether the s6s ere unreasonable, our in&uir2 is a dual oneB terr2 at :::.

1. whether the officers action was 3ustified at its inception7 and

2. whether it was reasonabl2 related in scope to the circumstances which 3ustified the interference in the fi place.To t2pes of people seizuresB 1. detentions8interrogations5 need %S.

2. Arrests5 need $C.

2. he ssence of (ibert% and ecurit%a. "oyd v #S !1C": /ssue: as the 8 reasonable- !H".

/nvasion of rights:1. /ndefeasible right to +ersonal ecurit%2. +rivate +ropert%. +ersonal (ibert%

3. +hat is $C ($CKL *th Am: O'o warrants shall issue7 but upon +6#efined M A situation where a reasonable police officer7 based on training and e,perience has accumulated

evidence indicating that more likel% than not7 the < is committing7 or has committed a crime. !pine pg. 12"

Reasons for +6:1. +rotect the innocent. 2. +rotect the criminals.

;asic %e&uirements for $C

'$C to arrest M or +6 to arrest a person to e,ist7 two conclusions must be 3ustified b% substantial7trustworth%7 evidence:

a" hat a violation of the law has been committed> and

@



b" hat the person to be arrested committed the violation'$C to search M or there to be +6 to search particular premises7 the conclusions which must be supporte

b% the evidence are:a" hat the specific items to be searched for are connected ith criminal acti-it2N and b" hat these items will be found in the place to be searched.

'Arrest -s. Searches M he result in each ma% not be the same in a specific case. An officer might have t+6 to arrest a person but not to search. Ienerall%7 evidence that would 3ustif% a search is apt to become stale sooner than information that is used to 3ustif% an arrest.

'O$C8 is an obecti-e concept. An officers sub3ective belief7 no matter how sincere7 does not constitute initself +6. ?owever7 a court will take into account the specific e,periences and e,pertise of the officwhose actions are under scrutin%.

a. Spinelli v #S 5 < was charged with crossing state lines with the intent to engage in gambling. ?ere theaffidavit set out four things:

5hat the B/ had monitored <s movements as he had gone over the state line several times and intan apt.> there were two phone lines in the apt> < is known4 as a bookie> a confidential and reliabinformant4 states that < is running a booking gig out of the apt.

A*uilar8s To $ron* Test M +rongs totall% independent4 of each other J each must be met before +6 is established:

1. ?AI#IT basis of =noled*eB he information had to adePuatel% reveal the Obasisknowledge of the informant7 the particular means b% which the% came across theinformation.

2. ?)%ACIT credible or reliableB /t had to provide facts sufficientl% establishing eith

the veracit% of the affiants informant !credibilit%"7 or the Oreliabilit% of theinformants report in this particular case.

#eld$ %o P&' ignificance M 6 makes it clear that these two prongs are separate and each m

be pro-en separatel2.

1. GA(/D/): Basis of Lnowledge +rongL) J O?ow did the informant get the information-

% M his prong is satisfied if the informant e,plicitl% states that she personall%observed the reported facts.

#raper - Enited States 19@9 J /nformer does not state the wa% info obtaine but reported < had gone to 6hicago7 b% return b% trato Denver w8 ounces of heroin. /nformer said whawould be wearing with minute particularit%.

#raper Approach M he tip described accuse<s activit% in sufficient detail the magistrate ma% know that

he is rel%ing on something more substantial than casual rumor. /nformatio

was so rich in detail that it wasreasonable to conclude that he obtained the information first hand.

2. GRA6/): 6redibilit% or Reliabilit%L) M vidence is rePuired to demonstrate that informer is a credible person !credibilit%

in the alternative7 that her information is reliable !reliabilit%".Corroboration M A tipsters information that would not otherwise satisf% the 2 pronged te

!i.e. anon%mous tip" ma% be considered regardless. he benchmark is #rape

b. Illinois v $ates : %verturns Spinelli& 6 switches to TC A$$%ACDB findin* that -eracit2

and -alidit2 are closel2 intertined.

19 J Anon%mous tip b% letter that ? would go to (A and drive back to 6?/ with weed. (etsa%s drives to ( then flies back. +olice see ? goes to (> +olice get warrant b* he even com back to 6?/. Also7 not all the info in the tip was correct. !the tip said that the wife would fl% bafrom lorida7 while in fact she drove back with her husband".

TC -s :'$ron*ed J he reliabilit% of the informants report and the basis of his knowledgare onl% considerations that go to the &6 J but these elements are neither fatal nor sufficie

C



in and of themselves. All that is rePuired of an affidavit is that all the allegations7 takentogether7 permit the magistrate to make a common sense evaluation of the +6.%ule M A warrant ma% be issued based on affidavits that are entirel% hearsa% if the affidavitshows b% the T(& that there is a fair probability that contraband or evidence of the crime w be found in the particular case.%ationaleB

a. arrants issued b% magistrates who are neither law%ers nor 3udges. b. Affidavits drafted b% non law%ers who ma% not know legal subtleties.

'& J 6ourt indicates that anon%mous note b% itself is not sufficient. 'ote Q corroborati +6.+hat is $CK M In F9 3, Court sa2s re&uires onl2 a probabilit2 or substantial chance

criminal acti-it2N not an actual shoin* of such acti-it2.

c. 'D v Prin(le: R establishes +6.: * arrested after cocaine found in back armrest7 wad of S in glove compartment. 'one of those in car would sa% whose it wall arrested.

?: $C re&uires a reasonabl2 particularized *round for belief of P8s *uilt. here was areasonable inference that an% or all of the men had knowledge7 dominion or control of the drugs. &fficer had +6.

4. +hat is %easonable SuspicionK%S #efined: here is a substantial possibilit% that a crime has been or is about to be committed and that the

suspect is the person who committed or is planning the offense.%S is indi-idualized suspicion short of the $C needed for arrest. !fn. a in )obinson7 p.1@2"

a. Terry &verview M ignificance of err%B

. %easonableness ;alancin* 9o Esed in %easonableness of S6S M +rovides a framework for amove to the proposition the appropriate test of police conduct is not whether it is reasonable to procure a search warrant7 but whether the search was reasonable.

:. S6S can -ar2 in intrusi-eness. 6ourt no longer treats all searches alike.3. +ide Arra2 of S6S ma% not be conducted that are less than ordinaril% intrusive on the basis of a

lesser standard of cause than O+6. 'ew standard of %S.

4. Some intrusi-e searches are now permissible on the basis of the lesser standard of R.!. SC applied Oreasonableness8 balancin* to hold some 8 of persons ma% be conducted without

individual suspicion of an% kind. b. Terry v %hio 19C J & with 9 %ears of e,perience became Othoroughl% suspicious when he observed tw

men walking back and forth repeatedl% in front of store7 peering in. & approached the suspectsidentified himself as a cop7 asked for their names7 and when he received onl% a mumbled repl%7grabbed one of them7 D7 spun him around7 and patted the outside of his clothing. & felt a pistolthe breast pocked of <s overcoat7 pulled it out7 and arrested him for carr%ing a concealed weapAt the time of the pat down7 & lacked +6 to either to arrest or to search.

Issue M hether in all the circumstances7 <s right to personal securit% was violated b% an unreasonab8-

Balancing test: nature and e,tent of government interest 3ustif%ing intrusion vs. privac% interest of citi#en.

Anal2sis M ;alancea. 7o-ernment interest M

1. Ieneral crime prevention N detection.2. &fficer safet%. 6ourt sa%s this is the cru, of the case. /mmediate legitimate interest th

< was not armed with a weapon that could be fatall% used against him.b. Intrusion M A protective search for weapons is a brief intrusion upon the sanctit% of the personthough far from inconsiderable intrusion.

Gust officer be certain indi-idual is armedK M '&. /ssue is whether a reasonably prudent man in t

circumstances would be warranted in the belief that his safety or that of others was in danger .

;



% M 9o $C necessar2 to S>F for eapons. @ust need %S that P is armed and dan*erous

indi-idual.

Deld M here & observes unusual conduct which leads him to conclude that criminal activit% might bafoot and P ma2 be armed and presentl% dangerous7 & can investigate and identif2 himself as aand ma=e reasonable in&uiries and if nothing dispels his reasonable fear7 he is entitled for the

protection of himself and others to conduct a carefull2 limited search of the outer clothin* ofsuch persons in an attempt to discover weapons.

Central In&uir2 M he reasonableness in all the circumstances of the particular governmental invasiof a citi#ens personal securit%.

becti-e Test M &fficer must be able to point to specific and articulable facts which7 taken togetherwith rational inferences$reasonabl% warrant that intrusion.4 acts are 3udged b% an obecti-e

standard.Gethodolo*2 of In&uir2 ("3

1. /s the officers OST$8 3ustifiedK

2. /s the stop reasonabl% related in scope to the circumstances which ustified the interferenceK

nce fficer Das %S &fficer has constitutional authorit% to ascertain whether the person in fact i

armed and7 if he is7 to disarm him.SC$) of the Fris= M A carefull% limited search of the outer clothing of such persons in an attempt t

discover weapons. he purpose and scope of the err% search is limited: to determine whether thesuspect is armed

<) $I9TS

1. &fficer onl% gets R after confronting < and investigation further.2. he purpose of the search is protection of himself N public7 not crime prevention.. earch limited to outer clothing.

Si*nificance M +olice can stop and frisk when there is reasonable suspicion. %S is less than +67 but more than nothing.

!. $AI9 ?I)+ #CT%I9)

. Ieneral Rule M he police do not commit a *th Amendment search when the% see an ob3ect that is in thplain -ie of an officer who has a ri*ht to be in the position to ha-e that -ie.

a" #istin*uish from seizure M he fact that the police ma% have a plain view of an item does not

mean that the% ma% necessaril% seize that item as evidence. Knless the officer is alread% legall%a place where he can touch the item7 the fact that he sees it will not dispense with the need for awarrant to sei#e it.

:. Ese of Gechanical #e-ices M +lain view applies generall% when the police stand on public propert% anuse mechanical de-ices to obtain view of < or his propert%.

a" ;eepers M +olice ma% attach a beeper to a vehicle and use the beeper to follow and this is not a

search either.3. ;ET'' Di*h Tech #e-ices 9ot in $ublic Ese M /f government obtains special hi*h tech de-ices, not in

*eneral ci-ilian use, and emplo%s them from public places to gain Oviews that could 9T be had b%naked e%e7 the use of such devices will be considered a S)A%CD. <2llo

4. Aerial bser-ation M hen police use an aircraft to view <s propert% from the air7 an2thin* the pol

can see ith the na=ed e2e fall within the Oplain view doctrine as long as aircraft is in public, na-i*ab

airspace. %ile2



;. $%T)CT)# A%)AS A9# I9T)%)STSB

1. rom respass to +rivac%?istoricall%7 the trespass doctrine applied to * th Am under (lmstead 7 so to have a *th Am 87 the govt would have had totrespass w8in the phone booth.

&lmstead v Knited tates 192 J( =a3orit% ?olding J iretapping is not a search or sei#ure within *th Amendment.(: Relevant J 'o ph%sical entr% or trespass into a home.(3 Brandeis Dissent 5 he government cannot commit crimes to secure the conviction of

private criminals. Also *th amendment applies to sealed letters7 so wh% not phoneconversations-

(a +rivac% of elephone Ireater han &ther amperings like =ail(4 ?olmes Dissent J iretapping is not inherentl% dirt% business. )ou cannot bring into

evidence obtained in violation of state law.

a. at! v #S) The 4th Amendment protects people, not places.

19C; J o+.. J he *th Am protects people7 not places.: +olice listen to phone booth calls via electronic listening device. ere recordings obtained in violation of *th

Amendment even though no ph%sical occupation into the petitioners area-Trespass 9T #ispositi-e M he Oreasonable o+ rule means that police conduct ma% *e

*th Am. sei#ure even though the police do not commit a trespass. /f < has a reasonablee,pectation that his conduct or words would remain private7 the absence of police trespass w be irrelevant.

<) M hat a person =noin*l2 e1poses to the public7 even in his home or office7 is not sub3ect to*th Am protection.%ule M hat a person seeks to preserve as private7 even in an area accessible to the public7 ma% beconstitutionall% protected.Anal2sis M &ne who occupies a public booth and shuts the door behind him is surel% entitled to o+Doldin* M +olice conduct constituted a 8 within the meaning of *th Am because it was an intrusion <s privac% interest. ;ET, *th Am protects more than merel% privac%> also protects interest in possession in propert% and in libert% of person.

)op #efined M Darlan Concur M STA9#A%# F% $%I?ACN here are twofold

rePuirement of privac%:5here must be actual sub3ective )o$. (SE;@)CTI?) $%97

5he e,pectation is one that is recogni#ed as reasonable. (;@)CTI?) $%97

+hat is a reasonable (obecti-e )o$K

9ature of propert2 inspected J ome propert% is linked more directl% toactivities that the 6ourt wishes to protect from scrutin% than other propert%)1tent that a person has ta=en measures to =eep pri-ate J 'o reasonabo+ in that which < knowingl% e,poses to public or is in open view. &ne wvoluntaril% conve%s info to another person assumes risk that the person wiltell or is a government agent.#e*ree of Intrusion b2 police acti-it2

+ai-er of $ri-ac2 %i*ht M A persons conduct ma% mean that he has no reasonable o+ in a particular situation. he individual must be taking measures to secure their privac%.)1amples found to be not protected:

' Abandoned propert2, i.e. trashN

5 hings visible from aerial o-er-ie>5 hings visible from public propert2>5 hings a person sa%s or does while in public>5 /nformation the police learn b% use of other senses. !e.g. the police use drug dogsairports to smell luggage".

2. Reasonable )o$

a. Iarbage

9



CA v $reen+ood: rash on 6urb gets no o+. 19 J +olice had garbage collector pick up garbage bags and turn them over. videof narcotics found. uch evidence provided the +6 for a warrant which led to findingnarcotics. /s taking of garbage a search-

'% M +er ?arlan <atz concur7 A persons sub3ective o+ does not ePual a *th Amend. protection unless societ% !the 6" accepts that e,pectation as ob3ectivel% reasonable.'Anal2sis M Iarbage bags are readil2 accessible to members of the public.Also7 were consensuall2 conve%ed to a rd part%. hus7 there is no reasonable o+. %easonin* under at! B

Su*ective Pron( : he respondent does not e,hibit a sub3ective o+ where he turns over hitrash and leaves it open and readil% accessible to animals children and snoops. /n additthe respondent knows that the trash will be picked up b% a third person !a cit% trashcollector" and therefore puts it out for the e,press purpose of having strangers take it.

%*ective Pron(: +olice cannot be e,pected to avert their e%es from criminal evidence thatcould have been observed b% an% member of the public. he court notes that while 6Arecogni#es a rt. to privac% in trash7 this state rt. does not mandate federal recognition J whone state imposes does not mean that societ% as a whole4 regards this as an ob3ective oRather7 states are free to impose more stringent constraints on police conduct than does thederal 6onstitution J here the case is not about state law7 but it is about an interpretation

federal law.

b. 6urtilageFL v -iley): ?elicopter surveillance w8 the naked e%e not a search.

1995 Ireenhouse full of weed was part of cartilage of house !partiall% protected" Nfence shielded the %ard from public e%e7 but <s o+ was unreasonable.

5R&(' he *th Am. does not rePuire police traveling in public airspace7 to obtain a warrant tobserve what is visible with the naked e%e.

5(aw of Airspace Relevance M /f fl%ing at a given airspace for the purpose of surveillance iagainst a law or regulation7 a search ma% be Puestioned. /t is of obvious importance that the helicopwas not violating the law.

5Rationale M An% member of the public could legall% have been fl%ing over house and could

have observed.

c. lectronic racking: Ienerall%7 an electronic device cannot give officers more info than the% could haveobtained through surveillance.

1. #S v notts : Kse of electronic beeper didnt violate *th Am. where nothing was gained from its u19 J +olice install beeper into container of package of substance used to manufacture illedrugs. hrough tracking7 police uncover enough to get warrant.

R&(J Kse of a beeper does not constitute a search.Rationale: 1. Gisual surveillance was possible all throughout the route and would hsuffice to reveal all the facts.

2. ;eeper did not re-eal mo-ements in pri-ate places .2. #S v aro : Ese of electronic beeper -iolates 4th Am hen it *i-es officers information the2

ould ha-e had to search to obtain. 19* J Lnotts leave open if visual surveillance wasnt possible./ J Does beeper monitoring violate *th if it reveals info that couldnt have been obtained

through visual surveillance-? J )es. /t is a search to enter a residence without a warrant to verif% that the container wa

there. The beeper tells the a*ent that the container is there. ?isual sur-eillanc

cannot pro-ide such details.

: points brin* up potential 4 th Am -iolationB

. Installation of monitorin* de-iceB 8( installation must be govt owned or beconsented to b% owner.

10



:. Gonitorin* of de-iceB 6annot be used to reveal information a search would benecessar% to reveal.

d. Iovt /nformant5 alse riend

#S v .hite: hen < voluntaril% converses w8F7 < assumes the risk 7 even if F is wired.19;1 M /nformer carries concealed radio transmitter. 6onversations in restaurant overheard

b% use of radio ePuipment to another agent concealed in a kitchen closet with informers consent.Doldin* M /f law gives no protection to the wrongdoer whose trusted accomplice is a police

agent !?offa"7 neither should it protect him when the same agent has recorded or transmitthe conversations which are later offered in evidence to prove the tates case.

%ule M here the wire5tapping or eaves dropping occurs with the consent of one of the parto the conversation7 then there is 9 4th AG)9#G)9T $%;)G.

Darlan in #issent M =onitoring conversation undermine confidence and sense of securit% between citi#ens in free societ%. ear of bugging will smother liberties.

Doffa - Enited States 19C; J +re5Lat# alse friend case. < conversed with F in <s hotel suite. Fwas an acPuaintance of D7 but also a paid government informant. Iovernment sought to introduce <s statements at trial.

Doldin* M <s hotel room is a constitutionall% protected area7 but no interest

legitimatel% protected b% the *th Amendment involved because < was not rel%on securit% of the room> he was rel%ing upon his misplace confidents that Fwould not reveal his wrongdoing.

%ule M hen a person voluntaril% speaks to another7 he assumes the risk that thelistener will ultimatel% betra%.

Is there a self'incrimination issueK M 'o. Because there was no 6&=+((D sincrimination.

e. arrants Against 'on5uspects: ma% be used7 even if subpoena would be ePuall% effective. /urcher v Stan0ord Daily: rd parties ma% be earched under the *th upon a showing of +6.

19;5 'ewspaper agenc% searched b8c the agenc% was suspected to have photographs of thowho were involved riot8demonstration. he newspaper was challenging the warrant on the

basis that:!1" he% were not suspects in the investigation>!2" he secrec% of their confidential informants and sources ma% be compromised>!" he 1st A.:

?eld: Galid warrants ma% be issued to search an% propert%7 whether or not occupied b% a r part%7 so long as there is $C to believe that items to be searched for are located on the propto which entr% is sought.

11



C. TD) )JCESI9A% % E)B

1. I'RA(():a. ?/&R/6A((): *eeks ! +S : 191*5 /n a D prosecution7 the *th Am barred the use of evidence secured

through an illegal 8.*olf ! &($ ,.- 6 refused to incorporate R b% the 1*th7 finding that a ma3orit% of tates didnt appl% the *eeks doctrine. /app ! (# : 19C15 6 finall% incorporates R based on *th Am grounds.

b. R is a procedural right created b% the Tudiciar% to remed% a 6&' violation. Leon

c. 3 benefits to the )% : rom 'app:

1. Deter police misconduct. ,clusion of evidence ma% be an effective wa% of deterring unreasonabsearches.

2. Dignit%: the right to7 b% <.. Tudicial integrit% in administration of 3ustice.

d. he =app e,clusionar% sanction comes into pla% onl% where the police have obtained evidence as a result of theunconstitutional sei#ure. !ie /A".

e. Leon and 1udson narrowed the scope of 'app. !All evidence obtained$in violation of 6&'$inadmissible"

(eon: hether R sanction is appropriatel% imposed is a separate issue from * th Am violation H.

?udson: ,clusion ma% not be premised on the mere fact that a 6&' violation was a Obut for cause of obtainingevidence. ee Oruit of +oisonous ree 5.on( Sun.

2. RK/ & +&/&'&K R D&6R/' :5 hen a 8 was unreasonable7 and evidence !fruit" is obtained7 it is tainted and will poison the process if used.5e need not hold that all evidence is Ofruit of the poisonous tree simpl% because it would not have come to light b

for the illegal actions of the police. Rather7 the more apt Puestion in such a case is Owhether7 granting establishment of the primar% illegalit%7 the evidence to which instant ob3ection is made has been come at b% e,ploitation of that illegalit% or inste b% means sufficientl% distinguishable to be purged of the primar% taint. .on()Sun. Ienerall%7 not all evidence is consideretainted.

. hat good is a right without a remed%-a. .ol0 v C%) 19*9 J here were '& A6 in the *olf &pinion. -erruled b2 Gapp.

SC8s Framin* of the Issue M Does conviction den% the OD+ of the law solel% because evidenceadmitted at trial was obtained in an inadmissible manner if it were in a federal court of law-Creation of 9e %i*ht M he securit% of ones privac% against arbitrar% intrusion b% the police J is

the core of 4th Am. J and is implicit in the concept of libert% in the D+6.D M /n a prosecution in a state court for a state crime7 the 1*th Am does not forbid admission of

evidence obtained from unreasonable S6S.Federalism %ationale M =an% states re3ected *eeks7 but have other means of protection besides

e,clusion of evidence. tates should be allowed to punish police in different manner thane,cluding evidence.

b. 'app v %1: /ncorporated the R to appl% to the tates. -errules +olf.

?: All evidence obtained b% searches and sei#ure in violation of the 6&' is7 b% that same authorit%inadmissible in state court.

19C1 J < refused to let police into home. +olice then forcibl% entered house7 and showed < a paperclaimed to be the warrant. +olice conducted a widespread search of the home and discovered evidenwhich was the basis for conviction. At trial no search warrant was produced b% the prosecution andthere is considerable doubt as to whether there ever was one.

*. eighing the 6osts against the Benefits

a. 7ood Faith )1ception to R applied to arrants

12



#S v Leon : 19* J +olice rel% on a issued b% a magistrate but later found to be unsupported b% +6/ssue: hether the *th Am R should be modified so as not to bar the use in the prosecutions case5in

chief of evidence obtained b% officers acting in reasonable reliance on a search warrant issued bdetached and neutral magistrate7 but ultimatel% found unsupported b% +6-

?: ince the rule operates as a 3udiciall% created remed%7 and not a 6&' right7 and the 6 ruled thagood5faith e,ception should appl%.

7ood Faith )1ception J /f warrant improperl% issued7 R does not appl% if officer reasonabl% believit was proper.

hen to appl% the R: 6ost8Benefit Balancing est:

Benefits: 1. Deter police misconduct.2. Dignit%: the right to7 b% <.. Tudicial integrit% in administration of 3ustice.

6osts: 1. Knbending application of the R would impede unacceptabl% the truth findingfunctions of the 3udge N 3ur%.

2. ome guilt% <s ma% go free or receive reduced sentences as a result of favorable plea bargains.

. /ndiscriminate application of the R ma% generate disrespect for the law Nadministration of 3ustice.

+hat is 7ood Faith- J hether a reasonabl% well trained officer would have known that the searcwas illegal despite the magistrates authori#ation.

hen Iood aith- J (eon rePuires good faith B&R going to the magistrate.,.s of ;ad Faith in arrants: situations in hich obecti-e reliance on a arrant ould not b

reasonableB

1. &fficer lies !or misstates facts" to get the warrant: !note that officer must lie7 rather thaninformant upon whose statement he relies"2. =agistrate wholl% abandons4 his 3udicial role. Affidavit is clearl% insufficient to establish +6*. arrant is so faciall% deficient that the officer enforcing it cannot reasonabl% presume it to b

valid4

Tustification J old:1. R designed to deter police misconduct rather than magistrates2. 'o evidence magistrates inclined to ignore *th Amendment. 'o evidence that e,clusion would have deterrent effect on magistrates

(anguage: he e,clusionar% rule does not operate so as to bar the use in the prosecutions case)in)

chie0 of evidence obtained b% officers acting in reasona*le reliance in a search +arrant issued bdetached and neutral magistrate but ultimatel% found to unsupported *y PC .4 6ourt sa%se,clusionar% rule is 3udiciall%5created remed%7 not part of 6on.

=a3orit% Distinction: *th Amendment Right N Remed% J he wrong of the *th Amendment is searcitself7 whereas the e,clusion of evidence is the remed%.

Improperl2 )1ecuted +arrants M Leon assumes that the officers properl% e,ecuted the warrant ansearched onl% those places and for those ob3ects that was reasonable to believe were covered

the warrant.%ule M he eon Ogood faith rule does 9T co-er improperly e2ecuted arrant

$ates J 6ourt gives rela,ed standards to magistrates in their review of the applications. (eon holdicoupled with Iates will make it inconceivable for a warrant to be invalid and an officer to beacting in Iood aith as well.

Derrin* -. ES △ was retrieving item from his vehicle in a police impound lot. &fficer at lot recogni#e

△ and asked clerk to search for warrants. 6lerk found no warrants and officer contacted clerk in

another district to search for warrants on the △. 6lerk found warrant. &fficer followed△ out of

impound lot7 pulled him over and arrested him. &fficer search vehicle7 !i.e. search incident to arrest" found drugs and gun.

1



Issue: hether the e,clusionar% rule should be applied to evidence found as a result of an unlawfularrest7 when in5fact7 the officers were acting out of good5faith4-

Doldin*B he court held that as long as the officers are acting in good5faith and that their conduct wanot deliberate7 reckless or grossl% negligent7 than the e,clusionar% rule does not appl%.

b. <noc= > Announce %ule

1udson v 'I: R not applicable to violations of the LNA rule. he rule was never intended to prevent officers from getting the evidence. 200C J &fficers e,ecuting a warrant for drugs and guns at <s home announced th presence7 but waited onl% a short time before entering. concedes that the LNA rule was violated. he single issue is whathe remed%. 6ommon (aw +rinciple: &fficers must announce their presence and provide residents an opportunit% to open thdoor. -ichards v .isc.B 199;5 < > A %ule not necessar2 when police have %S that one of the following appl%:

1. circumstances present the threat of ph%sical violence>2. there is reason to believe that evidence will be destro%ed if advance notice is given> &. L N A would be futile.

/ssue: hat is the remed% when the LNA rule is violated-

/nterests of the LNA Rule:1. +rotection of human life N limb>2. +rotection of propert%>. +rotects the elements of privac% N dignit% destro%able b% sudden entrance.

?: R isnt 3ustified b% a violation of the LNA rule.

!. 7)9)%AB

he R is a remed% whereb% evidence that has been obtained in violation of a <s *th7 @th7 or Cth Am rights ise,cluded from being used against him in the prosecutions case.

a. Fot$T #octrine J All evidence obtained or derived b% e,ploiting unconstitutionall% obtained evidence is deemedOFot$T8 and thus is inadmissible at trial under the R.

,ceptions:1. /ndependent source J Iovt can show that it had a legall% independent source for the evidence.2. /nevitable discover% J Iovt would have discovered the evidence an%wa%.. Dissipation of the taint !doctrine of attenuation" J &ne of several attenuating factors ma% prevent the

illegall% sei#ed evidence from being treated as Ofruit7 such that the act of free will b% <7 a length% causal chain b8w theillegalit% and the sei#ure of the evidence7 or a long time b8w the illegalit% and the sei#ure of the evidence.

b. (imitations to the R:A. /mpeachment of < J the govt ma% introduce unconstitutionall% obtained evidence for the limited purpose of

impeaching a < as a witness.B. Iood aith Reliance J K'6&n obtained evidence ma% be used against a < if it was obtained in good faith relianc

upon:1. Tudicial &pinion: when police rel% in good faith upon a 3udicial opinion that gives them reason to believe

their actions are constitutional.2. tatute: vidence will not be e,cluded where police rel% on a statute8ordinance that is later ruled

unconstitutional.. earch arrant J ,cept: the * situations /Dd in 0eon.

c. tanding:A < doesnt have standing to challenge the violation of a rd part%s 6&' rights. herefore7 a < ma% ob3ect onl% to

evidence directl% obtained from a violation of <s own 6&' rights.

1*



,: < cannot ob3ect to evidence obtained in traffic stop revealing evidence supporting charges against < if < wasnt the owho got pulled over. < wouldnt have a reasonable o+. BK7 if < does have a reasonable o+ in the place or propert%searched7 the% can get the evidence suppressed pursuant to an unreasonable 8.

th Am %TC > )%B

6: bright lines.+ost indictment 6 interrogation of the accused in the charged crime results in R. dwards.here is no washing of the atmosphere allowance under @ th.here is no traditional ot+ doctrine. &nce poisoned7 alwa%s poisoned.

/e: Because its such an e,plicit violation of the bright line rule7 we are going to appl% the e,clusionar% rule to deter Cth Am police conduct7 we are going to e,clude the gun.

!th Am Fruits B !th Am is a trial ri*ht a*ainst self'incrimination.

1. ometimes atmosphere changes J lstad2. 'on5testimonial evidence allowable7 but not confession.

Brown v /ll J time passing purging the taint.

1@



#. S6S +6 +A%%A9TS

5Anal%#ing a arrant: 2 critical moments for reasonableness:1. Application for the warrant. !enough +6-". Galid-2. ,ecution of the warrant. !Reasonabl% ,ecuted" Reasonable-

1. Galidit% of arrant

'D v $arrison: &fficers enter wrong apt and find drugs. arrant still valid7 as reasonable mistake.19; J arrant authori#es search of the person and the entire rd floor of apartment comple,. ouncontraband in a separate persons apartment. arrant was overbroad7 but7 onl% after entering the othapt and discovering narcotics did the officers reali#e the rd floor contained 2 apartments.% M Galidit% of search depends upon the whether the officers failure to reali#e the overbreadth o

warrant was obecti-el2 understandable and reasonable.See eon7 if warrant appears reasonable7 no R.

2. Iaining ntr%

-ichards v .I: =inimum tandard for LNA entr%.199; J isconsin court had held that officers are ne!er rePuired to knock and announce presence when

e,ecuting search warrant in felon% drug investigation.%ule J here is no per se e,ception to LNA rule.6oncerns with a per se e,ception:

1. 'ot ever% drug case gets substantial risks.2. oo eas% to overgenerali#e.. oo easil% e,panded into other categories.

%easonable Suspicion est J o 3ustif% a Ono knock7 police must have reasonable suspicion that knockingand announcing7 under the particular circumstance7 would be dangerous7 or inhibit the investigation.

1C



). S6S +6 C9S)9T

Ieneral Rule M Galidl% obtained consent 3ustifies an officer in conducting a 8( search7 with or without +6/f officer discovers evidence with valid consent search7 he ma% sei#e it without warrant pursuant to plain view doctrine.

%ationale for +arrant )1ception

a. +ai-er $rinciple M B% consenting7 a person waives right to be from unreasonable searches.(ooked at this wa%7 a consent search is not reall% an e,ception to the * th Amendment warrantrePuirement.

+ai-er 9ot $rimar2 %ationale of Court M +ai-er principle is no lon*er used b2 Court

?owever7 8( search ma% still be upheld even if consenting part% did not know that she could refu!Schnec=loth

aiver ould 6onflict with rd +art% 6onsent Turisprudence J Absent agenc% relationship7 could never waive Bs constitutional rights.

b. %easonable )o$ M &ne who consents no longer has reasonable o+. ?ence7 a consent search is reall% a search.

rd +art% 6onsent Alligns ith his Rationale M &ne who shares authorit% over propert% wiother ma% assume the risk that others might permit common area to be searched.

?alidit2 of Consent

a. +hat is the IssueK

'Subecti-e State of 7i-er of Consent M ome courts look to the sub3ective state of mind o person giving consent.'State of Gind of fficer See=in* Consent ' 6ould officer reasonabl% conclude that <consented-

b. ?oluntariness

'%ule M 6onsent is legall% ineffective unless person granting consent does so -oluntaril27rather than as result of duress or coercion7 e,press or implied. !chneckloth"

';urden of $roof M &n the prosecutor to demonstrate b% preponderance of evidenc'TC M =easure of balancing factors.'Factors Supportin* Coercion

1. how of force2. +resence of large number of officers

. Repetitive rePuests for consent*. vidence relating to consenting persons age7 race7 etc. that suggests thather will was overborne b% the officers conduct.

1. Awareness of *th Am Rights: 6onsent to searches.a. Schneckloth v "ustamonte : ( doesnt have to tell %ou that %ou ma% refuse to give consent7 but has the

Bo+ to show the consent was voluntar%.19; J +olice stopped a car in which F and < were passengers7 because headlight was burned out

After < failed to produce his license and onl% F could provide identification7 & asked for permission to search the car. F7 the brother of the absent owner7 consented. During thesearch7 police discovered evidence that connected < to a crime.

Issue M hat must state prove to demonstrate that consent was voluntaril% given-

Deld. hether consent was voluntaril% given is a H of act to be determined from the &6. hethe sub3ect of a search is not in custod% and the tate attempts to 3ustif% a search on the basof his consent7 the *th N 1*th Am.s rePuire that it demonstrate that the consent was in factvoluntaril% given7 and not the result of duress or coercion7 e,press or implied.

: Competin* Concerns determinin* the meanin* of O-oluntar28 consentB

. The le*itimate need for such searchesN -.

:. The re&uirement of assurin* the absence of coercion. >

Affirmati-e #ut2 to Inform P that Consent 9ot %e&uiredK J '&> ffective consent not negate b% not telling that consent is not rePuired. A persons knowledge of a right to refuse is a

1;



factor7 among all of the surrounding circumstances7 to be taken into account in determiningvoluntariness.

Shnec=loth %ule M Lnowledge of right to refuse is not the sine Pua non of an effective consent.

Goluntariness is the ke% to validit%.

. @ohnson - Herbst 19 J%ule M or effective waiver of right7 a state must prove an intentional relinPuishment of a =non

right or privilege.Dealt primaril% with effective waiver. ffective waiver mainl% dealt with assuring the < a fair

criminal trial.Shec=loth %eection of +ai-er %ationale

+ai-er Inconsistent ith 3rd $art2 Consent M /dea of rePuiring a waiver does not seemconsistent with the possibilit% of rd part% consent. urel%7 constitution can not allow a rd part% to waive anothers constitutional right. rd part% consent is prett% acceptable7 hencewaiver does not fit consent anal%sis.#e*rees of Constitutional $rotection M )ight of pri!acy is much less than the right to tria

counsel which was what case in 1erbst was about'

9T) M his ma% seem to indicate that < must have counsel present before effecticonsent is given-

2. 6o5&ccupant 6onsent$A v -andolph

: &fficer responds to domestic disturbance7 wife talks of husbands drug use7 officer seeks consentsearch house. ?usband refused7 wife consented. &fficer searched7 found drugs7 was about to go gwarrant7 wife retracts consent7 officer takes both to station7 gets warrant7 gets drugs.

6: *th Am rights not limited b% the laws of propert%. /n balancing of competing individuals.4

1



F. +6 A%%)STS A9# S)A%CD)S F $)%S9S

Ienerall%: Tustifications for a 8( 8:

1. ,igent 6ircumstances !emergenc%">2. *th Am interest intruded upon b% police was considered a lesser intrusion !minor">. +olice are otherwise not involved in activit%.

Search Incident to Arrest

b 7eneral $rinciples

( %ule M A police officer who makes a lawful full custodial arrest ma% conduct acontemporaneous 8( search of:

a. Arrestees person b. Irabbing Areac. /f arrest occurs in a home7 Oclosets and other spaces immediatel% ad3oining the pl

of arrest form which an attack could immediatel% be launched.

(: %ationale of +arrant )1ception M 6ustodial arrest provides the suspect with theincentive to use an% available weapon to resist the officer or to flee7 and to destro% orconceal evidence. Also in home arrest puts the officer at the disadvantage of being on hadversar%s turf.

(3 $C 9ot %e&uired For Search M he right to search the person of arrestee7 grabbing arN closets and spaces ad3oining flows immediatel2 and automaticall2 from the arrest

itself. hus7 police ma% conduct a search e!en if there is no reason to belie!e that

weapon e!idence or dangerous persons will be disco!ered'

(4 +hat Ga2 ;e Seized M he officer need not have +6 to search7 but he must have $C t

seize e-idence found in search.

c Search +arrant )1ception

( The Arrest

(a Full Custodial M Applies onl% to arrests in which the officer takes the suspect iOfull custod2 which includes transporting her to the police station for booking

(b afulness of the Arrest M he search5incident rule onl% applies to a search this incident to a laful arrest.

(: Contemporaneous of the Search M

(a Area +ithin Arrestee8s Immediate Control M (imited to searches substantialcontemporaneous to the arrest. or e,ample7 if an officer arrests the driver of aautomobile7 but does not search the car until after she tows it to the garage7 thelater search cannot be 3ustified b% the /A e,ception. his limitation is reasonain light of the rules purpose: once the arrestee is taken into custod%7 there is norisk that she can grab an% weapons or destro% an% evidence that previousl% werin the lunging area.

(b The $erson M ime limitation might not appl% to the person. )dards

(3 Scope of the earch(a Search of $erson M he right to search a person incident to a lawful arrest

includes the right to search the pockets of the arrestees clothing7 and to opencontainers found therein as well as to search containers Oimmediatel% associatewith the person7 such as a purse or shoulder bag.

(b Area +ithin The Immediate Control M he area into which a person mightlunge for a weapon or for evidence to destro%.

(c $rotecti-e Searches for #an*erous $ersons M ;uie

(d In CarsB not containers.

19



1. Arrests in a +ublic +lace: 'o warrant Rule.#S v .atson : A police officer is permitted to arrest w8o a warrant for a misdemeanor or felon% committed i

their presence7 as well as a felon% not committed in his presence if there was reasonable grounds making the arrest. !+6"

19;C J atson was arrested without a warrant b% a postal inspector for distribution of phon% creditcards. Reliable informant signaled inspector that atson was in possession of contraband.

Rule J Arrest warrants are not 6&' rePuired. his is true even where the police have sufficientadvance notice so that procurement of a warrant would not 3eopardi#e the investigation.

Tudicial +reference J 6ourt declines to impose 3udicial preference as a 6&' rule. &fficers are permitted to make 3udgments about +6 with regards to arrest> a magistrate approved warrannot rePuired.

+rinciple J An arrest is a sei#ure7 hence 6&' provisions rePuiring warrant appl% to it. urther7 anarrest is a more R/&K /'RK/&' than a search.

+olic% J BK7 a warrant or e,igent circumstances rePuirement hampers law enforcement. h%-5+ostponing arrest can imperil prosecution56ourt might find that a warrant becomes stale if officers choose to wait

Dissent: 5taleness of arrant- J &nce +6 is found7 it will continue to e,ist for the foreseeablefuture. h% would it go stale-

5earch v Arrest Distinction- J he * th amend. does not differentiate b8w an arrest and asearch. ?owever7 this case seems to make a distinction.

2. 8( earch of +erson /ncident to Arrest !SIA"#S v -o*inson: /A is an e,ception to warrant rePuirement7 N it is reasonable.

19; 55 &fficer arrests < for driving on a suspended license. During a search of <s person !/A"7 finds heroin in a crumpled up pack of cigarettes retrieved from <s shirt pocket. he resultinheroin was used in trial where he was convicted.

6: /A is an e,ception to warrant rePuirement of the * th Am.his has been formulated on 2 distinct propositions:

1. A search ma% be made of the person of the arrestee b% virtue of the lawful arrest.2. A search ma% be made of the area within control of the arrestee.

DeldB A custodial arrest of a suspect based on +6 is a reasonable intrusion under the *th Am.> thatintrusion being lawful7 a /A rePuires no additional 3ustification. /f is the fact of the lawful arwhich establishes the authorit% to search7 and we hold that the in the case of a lawful custodiaarrest a full search of the person is not onl% an e,ception to the warrant rePuirement of the * th

Amendment7 but is also a Oreasonable search under the Amendment.

%obinson -ersus Chimel

Chimel J ocus on the warrant clause and a burden of proof on the govt to 3ustif%an% e,ception to the warrant rePuirement7 and7 in light of the presumption against8( searches7 a refusal to announce an e,ception broader than was absolutel%necessar% to meet the circumstances of the satiation.

+hat ould be considered an adoinin* roomK

%obinson J (ess wedded to Owarrant rePuirement. Knlike 6himel7 the Robinson6ourt did not rePuire the govt to show that a full search in the present case wasneeded> that is7 it did not demand proof of facts that 3ustified dispensing with warrarePuirement.

. +olice Klterior =otives N the +lain Giew Doctrine.hren v #S : +6 for a traffic stop. as there a sei#ure- as it reasonable-

20



199C J D.6. vice sPuad officers pulled over a car that made a right turn7 without signaling7 and thensped off at an unreasonable speed.4 he &fficer observed two bags of cocaine through the window&fficers made the arrest for narcotics. &fficers were part of the vice sPuad and do not normall% givtraffic tickets7 in fact the% are onl% allowed to intervene in traffic activities which ma% be severel%dangerous.7en %ule M he decision to stop an automobile is reasonable where the police have +6 to believe tha traffic violation has occurred.%eection of Goti-e6$rete1tual Ar*ument M An ulterior motive does not strip the legal 3ustificatioof a search.$recedentsB

%obinson J (awful post arrest search not invalidated b% lack of safet% concern.Scott J ub3ective intent does not otherwise make conduct illegal.

$roposed %easonable fficer %ule M ould a reasonable officer have stopped a car without thehunch of drugs-%ule M As long as there is +6 to stop vehicle7 the stop is constitutional regardless of cops sub3ectivmotive.

*. leeing elons: /s it oka% to kill them-TN v $arner

19@ J Robber% suspect fleeing. &fficers shoots at him using deadl% force. tatute authori#es use deadl% force against an% fleeing suspect.Issue M /f +6 is satisfied7 does *th Am speak to the method of how the arrest is made- !/.e. can arres be made b% an% means necessar%-"%ule M Kse of deadl% force to arrest fleeing felon is sometimes unreasonable.

Clarified M here officer has +6 that suspect poses threat of serious ph%sical harm7 either toofficer or public7 it is constitutionall% reasonable to use deadl% force.

#eadl2 Force Alloed to Ga=e ArrestB : Conditions

1. &fficer must have O$C8 to believe suspect poses a significant threat of death or serious

ph2sical inur2 to the officer or others.

2. Deadl% force ma% onl% be used if the officer reasonabl2 belie-es that such force is necessa

to make the arrest or prevent escape.

6: he reason the ' statute is K'6&' is the word 5 &R 5 7 %ou cant kill a fleeing < 3ust based on flight

21



7. +6 S6S F $%)GIS)S

Search of $remises Ender )1i*ent Circumstances M here ma% be e1i*ent circumstances which 3ustif% dispensiwith the warrant rePuirement. hese circumstances ma% include pre-entin* the imminent destruction of e-idence,

pre-entin* harm to persons, and searchin* in Ohot pursuit for a suspect.

1. Arrest in ?ome: he arrant8RePuirement Rule Payton v N3: 190 J +olice with +6 go to house to make 8( arrest. 'o one home. Break open door with

crowbar. ind evidence in plain view.%ule M /f there is no e1i*ent circumstances7 the police ma2 not ma=e nonconsensual entr2 into

pri-ate home to make a 8( arrest.

$rinciple M o while do not need an arrest warrant to arrest someone outside home7 %ou need one toarrest w8in the home.

Anal2sis M ntr% into a private home is an e,treme intrusion7 and that an entr% for the purpose ofmaking an arrest is nearl% as intrusive as an entr% for a search.

%esult of In-alid Arrest M P will still be charged with crime. +rimar% consePuence is 3ust that evidsei#ed during the arrest will be inadmissible.

#issent +hiteB All problems solved b% having arrestee surrender at front door so dont need awarrant.

$a2ton -ersus +atson J Although an arrest warrant is rePuired for arrest in a home7 it is not rePuirin a public place. he distinction between a Ohome and a Opublic place is critical.

$ublic $lace M /ncludes the inside of a privatel% owned commercial building open the public7 since the atson arrest occurred in a restaurant during working hours.

2. ithin /mmediate 6ontrolChimel v CA: 19C9 J +olice go to <s house to e,ecute an arrest warrant. 'o search warrant. After arrestin

D7 police conducted a full scale search of the <s bedroom house and discovered the stolen coins.%ule M +olice can not search the whole house incident to the arrest> the% can onl% search the area

Qithin immediate possession or controlR of the arrestee !i.e. the grabbing distance"win +olic% Aims

1. afet% of +olice2. +reservation of vidence

. Destruction of vidence4ale v LA: 19;0 J Arrest warrant in hand. Gale arrested on steps of porch tr%ing to get into the house after

suspected drug transaction.%ule M A search ma% be incident to an arrest onl% if it is substantiall% contemporaneous with the arr

and is confined to the immediate vicinit% of the arrest. /f a search of a house is to be upheld aincident to an arrest7 that arrest must take place inside the house.

#estruction of )-idenceK M he Gale 6ourt indicates that a 8( search ma% be permitted whereevidence was in the process of destruction. But7 since the 6ourt did not allow searcwhere there was merel% a possibilit% that accomplices would destro% the evidence7 thus appears that the Odestruction of evidence e,ception is narrow.

*. echnolog% Advanced urveillance yllo v #S: 2001 J 6ops use thermal imager to detect for high intensit% lamps. hermal imagers detect

infrared radiation not visible to naked e%e. +erformed from the car from the front of the house. /nfo used to get a warrant.Issue M hat limits are there upon technolog% to shrink the realm of guaranteed privac%-$olic2 Considerations M echnolog% can not withdraw protections of o+.%ule M &btaining b% sense enhancing technolog% an% information regarding the interior of the home

which could not otherwise have been obtained but for ph%sical intrusion into a constitutionall% protected area constitutes a search. !At least where the technolog% in Puestion is not in general public use."

22



Off the +all8 -s OThrou*h the +all8 #istinctionK J here is no fundamental difference. Appl%ing distinction will leave the homeowner at the merc% of advancing technolog%.

$otentiall2 btainable b2 9on Technolo*ical Geans Ar*ument M he fact that ePuivalentinformation could sometimes be obtained b% other means does not make the use of means thatviolate *th Amendment.

Ine-itable #isco-er2 #octrine M /dea that wrongfull% taken evidence would have been found an%wa+hat is a SearchKK ' /t cant be based on e1pectation… +h2K M ith more technolog%7 there is muc

more invasion then were used to> thus soon there will be '& F+6A/&'#ISS)9T M

ff the +all Sur-eillance M All camera does is measure heat emitted from e,terior of house. here was no unauthori#ed ph%sical penetration.

<atz -s <2lloK J /n Lat#7 the device was attached outside the booth7 but was thefunctional ePuivalent of breaking in because u couldnt hear from the outside. ?erthe imager onl% detected heat radiating from outside of the house. /n Lat#7 if noiseaudible from outside the booth7 it would be in the public domain.

e*islature Should #efine These Issues

2



D. +6 S6S F ?)DIC)S > )FF)CTS

Automobile earch arrant ,ception Ieneral Rules&verview J A citi#en who enters an automobile does surrender the right to have the initial +6 determinati

made b% a magistrate.earches OAt the cene

Rule J & ma% conduct an immediate 8( search of an automobile that he has +6 to believe containscontraband7 or fruits or evidence of a crime if:

5 ?e stops the car on the highwa% !6arroll" J () 555 /s readil% capable of use on the highwa%7 and is found in a setting that ob3ectivel%

indicates that it is being used for transportation and is discovered stationar% in a planot regularl% used for residential purposes. !6arne%"

earches Awa% rom he cene JRule J A 8( search valid at the scene is also permitted if it takes place shortl% thereafter awa% from the

scene. !6hambers"/mpact J +olice can sei#e a car without searching it7 move it to another site7 and do 8( search there da%s

after sei#ure.+6 J ,ception is to a search warrant '& to +6U Le%s to Anal%sis:

+6 to earch Applies to ntire 6ar or &nl% +art- J /n most circumstances7 police will receive informationthat suggests that criminal evidence ma% be found Osomewhere in the car. /n this case7 the right tosearch will e,tend to the entire car. &n the other hand7 the police ma% possess more limited +6. eAcevedo7 where police observed < place bag in trunk. +olice there onl% had +6 to search trunk onl

&nce +olice Discover vidence he% ere (ooking or7 the earch =K 6A J ,ample in Acevedafter the% found the bag7 the search had to stop.

+olice ma% not earch an% +ortion of Gehicle that 6&K(D '& 6&'A/' the ob3ect of the earch

earch of 6ontainers ound in 6arsIeneral Rule J 6ontainers found in cars ma% be searched7 without warrant7 during an otherwise lawful

Oautomobile e,ception search. !Acevedo"6ontemporaneousness 'ot 'ecessar% J /f container ma% be search at the scene7 it ma% also be sei#ed an

searched without a warrant shortl% after at the station.Rule Applies in ither 2 Ieneral 6ircumstances+art of Galid 8( earch !via Auto ,ception"7 the police ma% come across container large enough to h

criminal evidence.+6 to believe that a particular container ma% be holding criminal evidence will be found in a car. Knde

such circumstances7 the police ma% conduct a 8( search of the car for the container !per autoe,ception"7 and then open the container also without a warrant.

California -. Ace-edo

established that police do not need a warrant to search a container within a vehicle

provided that there is +6 to believe that the ob3ect is in the vehicle.

;rendlin -. California established that passengers are also sei#ed for * th Amnd. +urposes when the driver is pul

over7 and so ma% challenge the constitutionalit% of the stop.

1. wo Rationales at ork ogether: =obile ?omesCA v Carney: 19@ J Kncorroborated info that < was trading drugs for se,. < parked in a cit% lot7 near a

courthouse where warrant could have been secured. +olice put home under surveillance an hour. )outh enters vehicle and later left with mari3uana. 'o indication that vehicle wgoing to depart. +olice enter without warrant or consent and sei#e drugs.

2*



Anal2sisB . Gobilit2 M A home is readil% mobile b% the turn of the ke%. 6ourt using theOpotentiall% mobile reasoning of 6hambers.:. esser )o$ M ven though the mobile home was not immediatel% mobile7 it was avehicle7 not a residence.

%ule M A mobile home is to be anal%#ed under the automobile e,ception not under the heightened privac% interests of a home.

Factors %ele-ant in #istin*uishin* Dome from Automobile1. (ocation2. Readil% =obile or levated on Blocks. (icensed as Gehicle*. 6onnected to Ktilities@. 6onvenient Access to +ublic Road

Auto )1ception Clarified M hen a vehicle is being used on the highwa%s7 or if it is readil%capable of such use and is found stationar% in a place not regularly used for residential

purposes the two 3ustifications for the vehicle e,ception come into pla%.

2. earch of 6ar Incident to Arrest of +erson &utside of 6ar ?istoricall%7 if < was arrested outside car7 cops had no abilit% to search car /A.

a. N3 v "elton 191 J &fficers stops vehicle on +6. Arrest driver and incident to arrest search passengercompartment.

%ule M /ncident to an arrest of a recent occupant7 officers can search the passengercompartment of a car.Allows a broader search of interior of vehicle to be searched where the% have +6 to believe

evidence or contraband e,ists. he% are allowed to go into containers.

Arizona -. 7ant police arrest△ after he had left his vehicle. +olice handcuffed△ and placed him in

sPuad car. +olice then searched△s vehicle !search incident to arrest".

Issue(sB hether the officers are allowed the search the car of a person who 3ust arrested7 while the persois handcuffed and placed in the back of a sPuad car-

Doldin*B 'o7 the police ma% onl% search the area within the suspects immediate control4.

b. Thornton v #S: Allows Orecent occupant8 /A200 J +6 to arrest driver of car. +olice follow to a parking lot. < gets out of vehicle and officer

accosts him. < admits to having drugs on him. &fficer arrests and handcuffs < and places him back seat of car. hen7 searches the car and finds handgun. Does Belton allowable search of caincident to arrest appl% if < is not in the car when contacted b% officer-

%eection of Contact Initiation Approach of ;elton M 'o basis for determining that < is recentoccupant of car on the basis of when contact was made b% the officer.

%ule M o long as an arrestee is the sort of Orecent occupant of a vehicle such as petitioner was heofficers ma% search that vehicle incident to the arrest.

Scalia Concur and Criti&ue of Gethodolo*2

Is a search ustifiable if made hile P as alread2 handcuffed in the s&uad carK M hisargument claims that cop should not be penali#ed for having the precaution to secure suspect annot have searched when he could have searched. ut this argument is weak because it assumes

the search must take place' A *30 search is not a right but an e4ception5

$C $roposed %ule M All officer needs is +6 to search for relevant evidence inside a car.

c. C% v "ertine

2@



19; J 6t upholds a police inventor%ing of a <s backpack found in his car !which was beingimpounded" after the < was arrested for drunk driving.)1tension of pperman M &pperman onl% allowed inventor% searches of automobiles to be restricto safeguarding those articles which are within plain view of the officers vision.In-entor2 Search or Incident to ArrestK M /nventor% because happened after arrest.

%ationale M B% securing the prop.7 the police protect the propert% from unauth.interference7 theft7 and vandalism. he% also protect themselves against wrongfulaccusations of the temptation of stealing the prop. +lus7 the% protect themselves ph%sicall% in case there is a bomb or weapons or e,plosives aboard.

. earch /ncident to 6itation no+les v Io+a: 199 J +olice stop for speeding. /ssues citation. hen makes full search of car7 finds

mari3uana.%ule M Robinson does not appl% in situations of citations. 'o threat to officer.;ut…

/f arrest7 u can search and if u find nothing7 then %ou can give citation./f %ou issue citation7 %ou can ask person to step out of car and %ou can patdown.

*. 6ontainer Belonging o +assenger7 'ot Driver

.3 v 1ou(hton1999 J 6ar stopped for speeding. Driver has s%ringe in his pockets. omen passengers ordered out of

car. &fficer searches car incident to arrest. inds purse of passenger. ith no suspicion as to passenger7 officer searches purse.

%ule M +olice officers with +6 to search a car ma% inspect passengers belonging found in the car./nterpretation of Ross J calia ma3orit% interprets Ross to allow search of an%thing in the car re*ardles

hether the2 are oned b2 the dri-er.

Balancing est: Intrusion into privacy: +assengers have a reduced o+ with regard to propert% the% transport in a vehi

J travel through public thoroughfares7 sub3ect to stops b% police7 e,posed to traffic accidents.$ov5t Interest : &therwise risk that the evidence of contraband will be destro%ed or hidden. +assenger m

be in a conspirac% with the driver and∴ stow all the drivers belongings in the passengers bag.

Difficult to determine who owns which container. 6ommon enterprise.

$olic2

%educed $ri-ac2 )1pectations M +assengers no less than drivers have minimi#ed e,pectations of privac%.

&wnership based rule would impede la enforcement.

+hat if search as propert2 on the personK M /f a wallet was attached to the person7 the officer probabl% would not have been able to search it absent specific +6. ame probabl% goes if < washolding the purse in her hand.

@. Arrests for =erel% 6itable &ffenses At+ater v City o0 La(o 4ista

2001 J +olice officer sees seat belt violation of person he has histor% with> a woman with 2 small childr6alls for backup and arrests woman. oman sues police in 19 suit.

Common a +6 Arrest %ule M uch is allowed with 2 limitations&ffense must have occurred in officer8s presence

&ffense must constitute a breach of the peace

2C



State a #iscretion M tate law gives officer discretion to choose between custodial arrest and issuanof citation.

Doldin* M 6ommon law is to be relied on7 but 2 centuries of uninterrupted state and federal practice permitting arrests for misdemeanors that are not a breach of the peace is dispositive. Gisdemean

arrest ithout breach of peace is <

Distorical $ractice as opposed to Common a doctrine.

2;



I. +6 S6SB )SS)% I9T%ESI9SB OST$ > F%IS< 8

est: taking into account all of the circumstances surrounding the encounter would reasonable person feel free to

lea!e"

1. /s an anon%mous tip with non crime relevant facts substantiated reasonable suspicion- J '&FL v 6L: Anon%mous tip that a person is carr%ing a gun7 without more7 does not 3ustif% a err% stop

2000 J Anon%mous tip that man at bus stop in plaid shirt carr%ing a gun. +olice find man in plaid s but no other suspicions. risk produces firearm.

Anon%mous ip Rule J An anon%mous tip alone seldom demonstrates the informants basis ofknowledge or veracit%. !Basicall%7 an anon%mous tip b% itself doesnt even get reasonablesuspicion> Remember +6 anal%sisU"

%ele-ant…/s there predicti-e information-Seriousness of the offense J An anal%sis ma% be different if there was discussion of a bomb or a

serious imminent offense. he offense here was possession of firearm. B% itself with noindication even in the tip that < was going to go postal was not a sever offense.

he reasonableness must be measured b% what the officers knew ;)F%) the search

Stop -s. Fris= M his case does not speak to situations of frisk where < has been legitimatel% stopphis decision onl% related to the authorit% to make the initial stop.

2. /s flight or the reputation of a neighborhood grounds for reasonable suspicion- J '&$ But the% can be strongfactors and combined$ are enoughU

Ill& v .ardlo+ leeing from cops ma% 3ustif% reasonable suspicion on which to base a err% stop7 if othercircumstances are present .

2000 J +olice officers in known crime neighborhood see a < run awa% upon their presence. 6atch hand find a handgun.%ule M /ndividuals presence in an area of e,pected crime activit% is not enough to support areasonable suspicion.Anal2sis M But combined with unprovoked flight is certainl% enough for R.#ISS)9T M he court is putting wa% to much weight on flight. /t far too often can be innocent.

. ?ow long can a ei#ure be before its unlawful-FL v -oyer

19 J +olice Puestion < at airport. Ask for consent to search suitcases. 6onsent given. earch 1@minutes after initial encounter.

Doldin* M hen ke% produced to suitcase7 the detention was a serious intrusion on personal libert%than is allowable for mere suspicion of criminal activit%.

%ule M Detention must be:1" temporar2 and2" last no lon*er than necessar2 to effectuate the purpose of the stop. And" method must be least intrusi-e means reasonable a-ailable.

9T) M he burden is on the +&(/6 to show this N this is about a sei#ure in general 9T a Terr2 sto

*. +olice Action hort of ei#ure#S v Drayton

2002 J Bus driver turns over bus to police officers. &fficers sa% the%re searching for drugs. &fficer as passenger to search bag. < consents. &fficer asks to search person. < consents. &fficer finds dru

Issue M as there a sei#ure b% asking the passengers for a search-

Doldin* M Because of no application of force, intimidatin* mo-ement, or shoin* of force, therno sei#ure.

%ele-ant M 6ourt notes that @ or C times GR7 passengers had not complied with search.#ISS)9T M he threatening presence of an officer is enough for a person to think consent is rePuir

2



@. emporar% ei#ure of ffects#S v Place

19 J Agents stop suspected drug courier. hile warrant sought7 the took his luggage and transferthem to another airport where sniffed b% drug dog. Bags held all weekend.Application of Terr2 ;alancin* M ubstantial governmental interest and detention is minimall%

intrusive.Ginimall2 Intrusi-e in a Standard #etention of u**a*eK J

1. < free to continue his travels and not sub3ect to embarrassment. (K

2. 'ot sub3ect to coercive atmosphere of confinement. 'ot sub3ect to public indignit% of detainment

Application M ?olding bags all weekend is well be%ond reasonable.

C. +arole tatus Samson v CA

2@9 Dissent: 'ot a special needs case.uspicionless criminal search.Decision based on H2.Le% part of *th Am is not /8$!not facts".

29



?. TD) % I7DT T CE9S) B TD AG.

A. 6&'/K/&'A(/M/'I ? R /I? & /I?: $%)$A%ATI9 F% #)F)9S) A R/A( N B)&'D

+hen #oes %i*ht to Counsel AttachK

%ule M Apart from Self Incrimination Considerations, P is not entitled to the assistance of counsunless:

a. Ad-ersar2 $roceedin*s have commenced A%D

b. he encounter is a critical sta*e of the criminal proceedings.-er-ie

+overt% and the criminal 3ustice criterion appears to be a lack of financial resources adePuate to permthe accused to hire his own law%er The %TC at Trial

th Am M ntitles accused in a federal prosecution to emplo% a law%er to assist in her defenat trial.7iddeon J R6 has been deemed a fundamental right of criminal 3ustice> therefore anaccused in state prosecution has a similar right to retain an attorne%.

Indi*ents and the %i*ht to Appointed Counsel

@ustice ;lac= in 7riffin M here can be no ePual 3ustice where the kind of a trial a man getdepends on the amount of mone% he has.

;roadenin* of th Amendment M =andate of legal assistance to indigent criminal defendathrough the Cth Amendment.@ohnson - Herbst 19

%ule M Cth Amendment withholds from federal courts7 in all criminal proceedings7 t power and authorit% to deprive an accused of his life or libert% unless he has or waithe assistance of counsel.

B% its language7 th Am does not appl2 to criminal appeals. hen the trial ends7 the prosecutionends> on appeal7 its < who seeks to upset the status Puo. Despite the inapplicabilit% of i,thAmendment7 appellate procedures are sub3ect to standards of the 1* th Amendment ePual protectioand due process clauses.

1. Road to Iideon

a. Po+ell v Ala*ama 192 J 9 %ouths prosecuted for the alleged rape of 2 white girls in Alabama. )ouths7 ignorant andilliterate7 were indicted7 arraigned7 brought to trial in less than 2 weeks after the capital offensesoccurs. &n da% of trial7 2 law%ers unfamiliar with local law offered to represent %ouths and deniedcontinuance to adePuatel% prepare. 6onviction overturned.

imited Capital Case %ule M /n a capital case7 where < is unable to emplo% counsel and isincapable of adePuatel% making his own defense because of ignorance7 illiterac%7 etc it is thdut% of the court to assign counsel for him as a rePuisite due process of law. Dut% notdischarged when circumstances preclude the giving of effective aid in the preparation.

b. "etts v "rady

19*2 J /ndigent indicted for robber%. RePuested but denied assistance of counsel at trial. 6onvicteof robber% and sentenced to prison.

%ule M he right to counsel is not essential to fair trial in light of common understanding ofthose who have lived under Anglo American s%stem of law.#istin*uishin* of $oell J 'ot a capital crime. his case onl% presented case of simple isof whether <s alibi claim should be believed. < here was not helpless as in +owell.

%ele-ant J < was man of * %ears or ordinar% intelligence. < had been in criminalcourt and had pleaded guilt% before7 thus was familiar with criminal 3ustice.

2. Right to 6ounsel for feolnies $ideon v .ain+ri(ht

0



19C J &verruling of Betts. < prosecuted for felon% of breaking and entering. < rePuests but deniecounsel. 6onducts defense as well as could be e,pected b% la%man. Tur% convicts him and sentenced to @%ears imprisonment.

%ule M An% person haled into court7 who is too poor to hire a law%er7 cannot be assured a fair trialunless counsel is provided for him.+hen is the %i*ht to Counsel ;e*inK J he court avoided this issue.%ele-ant M Iideon involved a felon% trial7 hence unclear about misdemeanor trials.

. R6 incorporated.

AL v Sheldon △ not given counsel during assault trial. 6onvicted and sentenced 2 %ears unsupervised

probation and 0 da% suspended sentence.

Issue. Does the i,th Amendment right to counsel permit a state to impose a suspended sentence evthough the ineffectivel%5assisted defendant was not actuall% incarcerated-

%ule of a. Knder the i,th Amendment7 a suspended sentence that ma% result in an actualdeprivation of a defendants libert% ma% not be imposed unless defendant was accorded guiding hanof counsel in the prosecution for the crime charged.

%oth*er2 -. 7illespie Count2 TJ established that the first appearance is the a critical stage that trigger

the Cth Amnd. right to counsel.

*. irst Appeal Dou(las v CA

Appeal and %i*ht to Counsel %ule M 1*th Amendment rePuires state to provide indigent criminal defendants free counsel on appeal7 at least for their initial appeal which state law rePuires thecourts of appeal to hear.

Is this #ue $rocess or )$K M Tustice Douglas states7 Ohen an indigent is forced to run thisgauntlet$7 the right to appeal does not comport with fair procedure. his seems to indicate this more of a $rocedural #ue $rocess case. But7 Douglas also states7 Ohere is lacking thate&ualit2 demanded b% 1*th Amendment where the rich man en3o%s the benefit of counsel whileindigent is forced to shift for himself.

Darlan #issent M his is not an Pual +rotection matterU Discriminator% impact of laws on the pothan on the rich does not implicate Pual +rotection. =ust be discriminator% purpose. here ino affirmative dut% per + to lift handicaps flowing from differences in economic circumstance

@. ubsePuent Appeals -oss v 'o00itt

19;* J 6riminal defendant provided with an attorne% for his initial appeal> but denied an attorne% toseek discretionar% review in the state supreme court or writ of certiorari in K upreme 6ourt.

#iscretionar2 Appeal %ule M Iovernment is not rePuired to appoint counsel for an indigendefendants discretionar% criminal appeal to the highest state court or K upreme 6ourt.

+hat is fairness (#ue $rocessK M 6ourt focused on difference between trials and appealswhereas state cannot dispense with trials7 the% do not have to permit appeals.

Anal2sis M Knfairness results onl% if indigents are singled out b% the tate and denmeaningful access to the appellate s%stem because of their povert%. !B/'I/'I(D &K / A' + /KU"

)&ual $rotection #iscussion M + does not rePuire a state to duplicate the legal arsenal thama% be privatel% retained b% a criminal defendant. /ndigent must have an opportunit% to present his claims fairl% in the conte,t of the appellate process.+hat is P8s interest in an attorne2K M 6ourt acknowledges that lack of an attorne% is asignificant disadvantage> but there is no constitutional right in such.

1



+hat is difference beteen initial appeal ri*ht and subse&uent appeal ri*htsK M nsurright of at least one appeal. Right to meaningful appeal is thus preserved. But7 court hasrePuired government to pride free transcripts for A(( appeals.

2



?I. $IC) I9T)%%7ATI9 > C9F)SSI9

A. BK/(D/'I A C9F)SSI9 #CT%I9) 9 #$ A9# TD) %TC:#$6 ?oluntariness and %TC

?istorical: Before =iranda and @th Amen cases7 K6 held that confessions must be voluntar% under D+ clause. h primar% interests protected b% the D+ voluntariness4 test for admitting confessions

1. Reliabilit%5 Barred use of confessions which were unreliable because of the police methods used to obtainthem

2. +olice 6onduct5 Barred use of confessions produced b% offensive methods even though reliabilit% was not aissue

. /nvoluntar% in fact5 Barred used of confession which were involuntar% in fact !obtained from a drugged

person" even though the% were reliable and there was police misconduct9ote: primar% rationale for barring confession that are not given voluntaril% is that the% are unreliableU hconfession rule was designed merel% to protect integrit% of fact5finding process. /nitiall%7 the court merel%looked at voluntariness.

The Shortcomin* of the ?oluntariness Test

1. /t is an ambiguous term and a mi, of factual and legal elements7 invites 3udges to give their own weight todifferent facts. +olice have a hard time knowing where the lines are when 6t looks at totalit% of thecircumstances.

2. /t is hard to prove ps%chological or mental coercion

. /ssue becomes a swearing match b8t police and < and < usuall% loses.

%i*ht to Counsel and the Analo*2 to the Accusatorial, Ad-ersarial TrialB

in earl% pre5=assaih and Iideon cases7 K6 upheld convictions. said no D+ violation even when < rePuested counsel and was refused

:. concurrences and dissents point out that D+ rePuires that the accused who wants counsel shoul

have one at an% time after the arrest

3. pano !19@9": once a person was formall% charged b% indictment or information his constitutioright to counsel had begun7 at least with counsel he had retained himself. 6ourt found confessiinadmissible on coerced confession grounds !not right to counsel".

Constitutional provisions: the admissibilit% of <s confession or incriminating admission involves anal%sis under ahost of constitutional provisions $#ue $rocess !@th and 1*th As": < is denied D+ if a statement obtained via police coercion !and therefore an

7involuntary8 statement" is used against D.Self'Incrimination !@th A": 7compelled8 self5incrimination is not allowed !much like involuntar%4 stateme

above"> Giranda warnings must be given%i*ht to Counsel !@th and Cth As":

th A: violation if govt deliberatel% elicits statements from suspects in absence of counsel or waiver of rights '&: attaches onl% after formal 3udicial proceedings have begun !Gassiah"

!th A8Giranda: there is no e,press R6 under the @th A> onl% through =iranda '&: attaches whe

suspect is sub3ected to custodial interrogation

1. 6onfession following length%7 continuous confession is not voluntar%. Ashcra0t v TN

< Hs in rela%s b% cops for C hours w8o rest in order for cops to obtain confession.6: B% secluding < in a room for C hrs w8o rest7 the coercive force of the interrogation was inheren

D+ doesnt permit doesnt permit.2. 6onfession following da%s of interrogation not voluntar%

.atts v Indiana

D+ is violated when < is s%stematicall% Hd while in custod%.6: A confession must be the product of the <s free choice. ustained police Puestioning deprives a

of free choice7 because its a natural human condition to succumb to unrelenting police pressure.his continued pressure creates an impression that police will not cease interrogation until < waiv



6&' rights and confesses to crimes. +ermitting such conduct is in violation of D+. D+ rePuires th police follow appropriate accusatorial procedures before a libert% interest is denied.

. +ost5/ndictment statements made to 6o5< inadmissible 'assiah v #S

19C* J < indicted for narcotics offense. Retained law%er7 pleaded not guilt% and released on bail./nformer charged in same indictment agreed to cooperate with government in its investigation./nformer installs listening device in car. < makes incriminating statements. < argues that statementhis car violate his Cth Amendment right to counsel.

%ule M Cth Amendment violated when there was used against < at his trial evidence of his owincriminating words7 which federal agents had deliberatel% elicited from him after he had bindicted and in the absence of counsel.

9utshell M he fruits of that investigation7 to the e,tent that the% involved deliberatel%elicitation of the accuse<s own words7 in the absence of counsel7 could not be usedagainst him at his own trial.

;ri*ht ine %ule M &nce 3udicial criminal proceedings commence7 the accused has aright to legal representation when the government interrogates him.

'ote that = was not interrogated. he rule is that after indictment the police cannotdeliberatel% tr% and elicit incriminating statements from the person.

C%ECIA M he period after a suspect is formall% charged with an offense and before triathe most crucial period of the proceedin*s. At this time consultation and preparation arevitall% important.IG$ACT M or 1st time holding that 6onstitution is violated when government agents7 in thabsence of defense counsel7 deliberatel% elicit incriminating information from a person agaiwhom adversar% 3udicial criminal proceedings have commenced."uestionB

?ow was Cth Amendment right to counsel violated- ?e was not barred from /sautomobile. ould it have been an% value if he had been in the car- 6ould hise,pertise have protected- /s this issue the right to counsel or the eatherford8Bursdeceit8undercover issue-

$otential %oles for a2er in $retrial

+rovide assistance in encounters ith *o-t in which her innocent clients weakneignorance7 or inertia threaten to result in an un3ust conviction.+rovide pre-entati-e assistance. his the Ofo, hunt view of 3ustice. 6ounsels rois to make an uneven match7 more even7 to give the accused7 e!en if she is guilty7 afair chance to win.+rovide ad-ersarial assistance. (aw%er is guardian of the fortress. /t is no longerappropriate for prosecution to enter this fortress. Gassiah seems to be ustified

this basis. 7o-ernment -iolated this fortress.

*. he R6 attaches once police investigations shift from investigator% to accusator%. 9sco*edo v Ill&

19C* J < was under arrest for murder7 taken into custod% late in the evening and interrogated at the

police station. During the Puestioning7 he was handcuffed and was kept standing. < as=ed to conspri-ate la2er, but as refused on false *round. (ate in night7 police suggest < confrontaccomplice F. < agrees to talk to F. < makes incriminating statements to F. F had alread%implicated D. < ne-er informed of pri-ile*e a*ainst self'incrimination.

Doldin* M 6onfession inadmissible7 even if voluntaril% given7 because it had been obtained inviolation of <s Cth Am R6. he advise of counsel would have informed him of the fact the,culpator% statements made would be detrimental.

7roundbrea=in* M 'ever had 6ourt held that Cth Amendment right to counsel applied to a personagainst whom criminal proceeding had %et to formall% commenced7 such as indictment.

*



%ele-ant M hen < rePuested counsel and denied7 the investigation ceased to be an investigation. Bthat time it had focused on D.

9arro %ule M Cth Amendment violated when7 as here7he investigation focuses on him.?e is in custod2.

+olice interro*ate him.?e re&uests and is denied an opportunit2 to consult la2er.+olice ha-e not informed him of privilege against self5incrimination.

%i*ht to Counsel or Self Incrimination pinionK M 6ourt later concluded the rationale of the casewas to guarantee full effectuation of the privilege against self incrimination.

Si*nificance M Attitude toward interrogations and confessions7 which formed the basis for =iranda

@



B. BK/(D/'I A 9)+ C9F)SSI9 #CT%I9) 9 TD) $%I?I)7) A7AI9ST S)F'I9C%IGI9ATI9:

?AE)S %)F)CT)# ; TD) $%I?I)7) A7AI9ST S)F'I9C%IGI9ATI9B 'urphy v .ater0ord Commission

1. &ur unwillingness to sub3ect those suspected of a crime to the cruel trilemma of self5accusation7 per3ur% orcontempt>

2. &ur preference for an accusatorial rather than an inPuisitorial s%stem of criminal 3ustice>. &ur fear that self5incriminating statements will be elicited b% inhumane treatments and abuses>*. &ur sense of fair pla% which dictates Oa fair state5individual balance b% rePuiring the govt to leave the

individual alone until good cause is shown for disturbing him and b% rePuiring that the govt in its contest wthe individual to shoulder the entire load>

@. &ur respect for the inviolabilit% 6sacredness7 of the human personalit% and the right of each individual Oto aseparate enclave where he ma% lead a private life>

C. &ur distrust of self5deprecator% 6disappro!al3criticism7 statements> and;. &ur reali#ation that the privilege7 while sometimes Oa shelter to the guilt% is often a Oprotection to the innocen

1. A grand Tur% witness ma% not commit per3ur% to avoid self5incrimination.#S v 'anduano : =iranda '8A to grand 3ur% investigations.

!19;CB $luralit2 of the court held that no Giranda arnin*s necessar2. here is no inheren

compulsion to speak in a grand 3ur% hearing like there is in a police station. < was advised ofAm privilege. But not told that att% would be appointed to him for free.

6ourt also discussed the procedure to be followed when a witness asserts the privilege. he gra 3ur% has two choices: !1" /f the desired testimon% is of marginal value7 the IT can pursue othavenues of inPuir%. !2" /f the testimon% is thought sufficientl% important7 the IT can seek a 3udicial determination as to the bona fides of the witness @th Amendment claim.

/f in fact there is reasonable ground to apprehend danger to the witness from his beingcompelled to answer7 the prosecutor must then determine whether the answer is of suchoverriding importance as to 3ustif% a grant of immunit% to the witness.

I0 immunity is sou(ht *y the prosecutor and (ranted *y the presidin( ud(e7 the witness cthen be compelled to answer7 on pain of contempt7 even though the testimon% wouldimplicate the witness in criminal activit%.

2. < must be made aware of Rights prior to /nterrogation 'iranda v #S

In Distorical Conte1t

#issatisfaction ith ?oluntariness Test M 6ourt had concluded that there was intolerable uncertainin it and a brighter line rule was necessar%.Gollo26Do*an J @th Amendment privilege against compulsor% self5incrimination held applicable tostates.Gassiah J Iovt. ma% not deliberatel% elicit statements from a person under indictment in the absenof counsel. Cth Amendment

)scobedo J ,tends right to counsel to pre5indictment interrogation.Giranda - Arizona 19CC J our cases consolidated for appeal. ignificant common facts: 1" each of the

suspects had been ta=en into custod2> 2" &uestioned in interro*ation room> " Puestioning occurred in police5dominated environment7 in which each suspect was alone ith &uestioners> *" suspects ere not

informed of their pri-ile*e a*ainst compulsor2 self'incrimination.<) M he court reali#es that interrogation is the critical stage.%A#ICA M =iranda was more radical than Iideon. Before Iideon7 man% states hadalread% provided right to counsel at trial.

The Doldin*B A series of steps.

The pri-ile*e a*ainst self'incrimination applies to formal A9# informal proceedin*s.

$olice can no lon*er *i-e people the belief that the2 ha-e the ri*ht to an anser.

!th A is -iolated if statements are ta=en 6out *i-in* a proper arnin*.

C



arning must include: The rt' to remain silent8 That anything he says can be used against him in a

court of law8 That he has the rt' to the presence of the attorney8 and that if he cannot affo

an attorney one will be appointed for him prior to any 9uestioning if he so desires .%ule M

!th AmB Self'Incrimination M An% statement7 e,culpator% or inculpator%7 obtained as theresult of custodial interrogation ma2 not be used a*ainst the suspect in a criminal trialunless the prosecutor proves that the police pro-ided procedural safe*uards to secure thesuspects privilege against compulsor% self5incrimination.

Custodial Interro*ation Defined J Huestioning initiated b% law enforcement officafter a person has been taken into custod% or otherwise deprived of his freedom ofaction in an% significant wa%. his is what the 6ourt spoke of in !scobedo"

he elf5/ncrimination clause strikes a balance b8w effective law enforcement andrespect for the Odignit% and integrit% of citi#ens. /t is effective onl% when a personright to remain silent is preserved.

th AmB %TC M /n custod% suspect has a right to consult counsel prior to Puestioning and tohave counsel present during interrogation.

$urpose of Giranda %i*ht to Counsel M o assure that the suspects abilit% tochoose whether to speak or to remain silent is unfettered.

Subsidiar2 Functions M Reduces likelihood that police will act coercivel%can testif% at trial regarding coercion7 and he can make sure that an% statemgiven b% his client is accurate and reported correctl% at trial.

9T) M This is 9T the th Amendment ri*ht to counsel his ma% be called t=iranda Right to 6ounsel

$rocedural Safe*uards M 6ongress and states are free to develop procedural safeguards for protectthe right against self incrimination. But7 until such measures are Ofull% as effective7 the followingwarnings must be provided. !RehnPuist uses this in ucker as evidence that =iranda is not

constitutionall% rePuired"%i*ht to %emain Silent M he police =K in clear and une&ui-ocal terms indicate thatthe suspect has a %I7DT T %)GAI9 SI)9T.

Conse&uences M ,planation that A9TDI97 SAI# CA9 A9# +I ;) ES)# again< in court.Counsel M < must clearl% be informed that he has the %I7DT T C9SET CE9S)

and have law%er with him during interrogation.Financial Abilit2 Enrelated to Counsel M +olice must inform < that if < is indigent7A+)% +I ;) A$$I9T)#.

+ai-er M uspect ma% waive privilege against privilege against self5incrimination and @ th Amendmright to assistance of counsel. D)A? ;E%#)9 rests on prosecutor to demonstrate that D7 1"-oluntaril2N 2" =noin*l2> N " intelli*entl2 waived his rights.

?oluntariness M A length% interrogation before a statement is strong evidence of involuntarIntelli*ence M 'o amount of circumstantial evidence that a person ma% have been aware ofhis right will suffice to stand instead of warning being actuall% given.

)nforcin* %i*hts

%i*ht to Silence M /f suspect indicates in an% manner at an% time prior to Puestioning that h

wishes to remain silent7 the interrogation must cease.Attorne2 M /f person asserts his privilege in his attorne%s presence7 there ma% besome circumstances in which further Puestioning would be permissible7 particularl%the absence of evidence of overbearing.

%i*ht to Counsel M /f suspect states at an% time that he wishes to consult an attorne%7 theinterrogation must cease.

+ai-er M &nl% effective if it is b% an e1press statement b% < that 1" he wants tomake a statement and 2" does not want attorne% present.

%ationale

;



Custodial Interro*ation as OCompulsion8 M 6ourt shows police manuals which recommencoercive tactics. 6oncludes interrogation is police dominated and ps%chologicall%intimidating. /n the absence of safeguards7 interrogation ill result in unconstitutionalcompulsion. here is something inherent in the custodial interrogation that creates a presumption of Ocompulsion to waive @th Amendment right.

ral Ar*ument Anser b2 P M here is a substantial difference between compellisomeone to give up his @ th Amendment privilege against self5incrimination andcoercing a confession out of them.

imited Importance of Confessions in a )nforcement M 6ourt finds overstatement ofthe Oneed for confessions. !confessions are grav%"Importance of Ad-ersarial S2stem M @th Amendment is essential mainsta% of adversar%s%stem. /t is not for authorities to decide when suspect should speak.



C. A$$I97 A9# )J$AI9I97 GI%A9#AB

1. 6ustod% and /nterrogation

a. But ven /' the +olice tation =a% 'ot Be /n 6ustod%U1. California - ;eheler

19 J < voluntaril% agreed to accompan% police to station5house7 in order to be Puestioned%ule M 'ot a custodial interrogation if < Ovoluntaril% agreed to accompan%.In Custod2 $er GirandaB here is a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.

2. 3ar*orou(h v Alvarado

200* J Detective tells <s parents that the%d like to talk to D. +arents bring 1; %r old < tostation. 'o warnings given. 2 hours of Puestioning. < admits to involvement in murder.

Dissent: A ct must answer the Puestion in light of all the circumstances surround thinterrogation> A reasonable person would not have thought he would have been free pick up and leave in the middle of the interrogation> /nvolvement of Alvarados parents suggests involuntar% behavior on Alvarados part. he precise def ofreasonable person ma% depend on the legal conte,t7 appropriatel% account for certa

personal characteristics.

b. hat 6onstitutes /nterrogation within =iranda- -I v Innis

190 J < arrested for a murder in which the weapon in crime had not been discovered. < placed in police car with officers. n route to station7 & talks about children in the neighborhood hurtingthemselves with weapon. < interrupts and offers to show police where was weapon. < had not %et been given =iranda warnings. But7 < had rePuested to see a law%er7 thus police rePuired to ceaseinterrogation until < talked to law%er.

Issue M /s statements b% officers about the children an Ointerrogation so as to violate theOcease interrogation rule-%ule M /nterrogation refers not onl% to Oe,press Puestioning but also to its Ofunctional

ePuivalent.Functional )&ui-alent M An% words or actions on the part of the police that the police

should know are reasonabl% likel% to elicit an incriminating response.Focus M &n the perceptions of D7 rather than the intent of +oliceUfficer8s subecti-e intent is 9T TD) <)

Interro*ation TestB becti-e In&uir2 M Should the officer have reali#ed that his acts orwords were reasona*ly likely to result in an incriminating response from the suspect.

9e*li*enceK M An interrogation occurs if an officer was negligent in failing to foresee thahis words or actions were likel% to result in a statement from the suspect.

fficer8s Intent 9T Totall2 Irrele-ant Footnote M An% knowledge the police ma% hhad concerning the susceptibilit% of < to a particular form of persuasion might be animportant factor in determining whether the police should have known that their words

actions were reasonable likel% to elicit an incriminating response.Anal2sis M tatement about children is not the Ofunctional ePuivalent of interrogation.6onversation was brief7 not especiall% evocative7 no evidence of susceptibilit%

c. hen =iranda arnings Are '& rePuired:6overt 6ustodial /nterrogations Ill& v Perkins

1990 J +olice obtained info that D7 3ail inmate7 had made statements to another prisoner thatimplicated < in a murder under investigation. +olice placed F7 agent7 in <s cellblock posing as a burglar to engage in conversation about the murder. < admits details of the crime.

9



%ule M =iranda warnings are not rePuired when the suspect is unaware that he is speaking to a lawenforcement officer and gives voluntar% statements.

n Giranda J +remise that interpla% between custod% and interrogation triggers the need to provid protections against coercion. 6oercion is determined b% the suspects perspective> therefore7 threPuisite coercion is lac=in* hen a custodial suspect encounters a person he belie-es is a

cellmate rather than an officer.#issentB =iranda was not onl% concerned with police coercion. /t dealt with an% police tactics tha

ma% operate to compel a suspect in custod% to make incriminating stmts w8o full awarenesof his constitutional rights.

d. +ai-er AFT)% P has In-o=ed Giranda %i*htsK

-er-ie M hat procedures should police follow if < asserts his @ th Amendment privilege against sincrimination- Knder what circumstances ma% police obtain a valid waiver once the custodial suspect assone or both of these rights-:nd e-el $rotectionsB $rocedures AFT)% Suspect In-o=es %i*hts

Giranda Cease Interro*ation %ule J &nce warnings given7 if suspect indicates in an% manner7 atan% time prior or during Puestioning7 that he wishes to remain silent7 the interrogation must cease.Gichi*an - Gosle2 19;@ J < arrested and read =iranda rights. < invokes rights. +olice cease and place < in 3ail cell. 2 hours later7 different officer interrogates < about different crime for which < n

in custod%. &fficer re reads warnings. < signs waiver form and answers Puestions.Doldin* M tatements admissible based on the circumstances.%ele-ant Circumstances

2 hours lapsed since initial PuestioningDifferent officer Different locationDifferent crimeresh warnings given

%i*ht to CounselB )dards %ule

)dards - Arizona 191 J +olice read < his warnings. < originall% agrees to talk7 then sa%s he wato speak to an attorne%. /nterrogation ceased7 and < taken to 3ail. 'e,t morning7 2 officers come anPuestioning resumed. < sa%s no talking. Iuard sa%s7 Ohe had to talk. &fficers give fresh warnings

then < agrees to answer Puestions.)dards ;ri*ht ine %ule M &nce suspect invokes his rights to consult an attorne% or to nspeak7 the suspect is not sub3ect to further interrogation b% authorities till counsel has beenmade available7 E9)SS accused himself initiates further communication with the police.$olic2 M +revent police from badgering < into waiving previousl% asserted =iranda rights.

Clarification and )1tentension of )dards %ule

'innick v 'S

1990 J < arrested for murder. Refuses to sign a rights waiver but agrees to answer somePuestions. hen asserts a right to counsel before he agrees to make more statements. Attormeets with him. (ater7 3ailer tells < that he Ohas to talk and that Ohe could not refuse. heradvises him of rights and < makes number of incriminating statements without law%er prese

%ule M &nce a suspect in custod% invokes =iranda rights7 police must not onl% per

the suspect to consult with an attorne%7 but the% ma% not re5initiate Puestioning unlcounsel is present .

)dards J Ginnic= ummar%%ule J &nce person in custod% rePuests counsel7 police ma% not interrogate suspecabout A') crime7 unless:

P8s la2er present, and valid waiver obtained% P initiates further communications with the police after police obtainwaiver.

*0



#. )JC)$TI9S T GI%A9#AB

1. +ublic afet% ,ception N3 v ;uarles

19* J oman informed 2 officers after midnite that she had been raped and assailant was armed anentered a grocer%. &fficers enter store and spot < fitting description. < flees and officers in pursuit&fficer7 with backup officers7 take < into custod% and handcuff him. &fficer sees empt% shoulderholster and asks < where the gun was without issuing /iranda warnings. < nods and points out gun

%ule M /f custodial interrogation occurred in a situation posing a threat to public safet%7 theris not a rePuirement for =iranda warnings.Anal2sis M +olice confronted with immediate necessit% of finding the weapon.Test of $ublic Safet2 M %e&uirements

here must be an obecti-el2 reasonable need to protect the police or the publicfrom an immediate danger>here must be an e1i*enc2 re&uirin* immediate action b% the officers be%ond thenormal need e,peditiousl% to solve a serious crime.+olice Puestions must be reasonabl2 prompted b2 a concern for public safet2.

;I7 $I9T M he 6ourt remanded this case to see if confession was coerced. his suggethat there is '& +KB(/6 A) F6+/&' to coerced confessions J at least not unti

different facts come along.8Connor #issent J Argues that statement is a violation of =iranda and should be e,clude but the gun is a fruit4 of =iranda violation and is thus admissible.Criticism

+here as e1i*enc2K M 'o customers in the store7 clerks were at checkout stationand < handcuffed and surrounded b% * officers. 'o threat of an accomplice.Cost6;enefit M his case uses balancing of =iranda warnings> nothing in =iranda suggest that such is founded on cost5benefit calculation$resumption of 7ood Faith M 6ourt in =iranda presumed the worst of police ininterrogation rooms7 contraril% the 6ourt here presumed the police were acting with public safet% concerns.

2. ruit of +oisonous ree /napplicable#S v Patane

:554 J < arrested outside his home and handcuffed. < said he knew his rights and no further warningiven. Iovernment concedes failure to give =iranda warnings. < tells officer where gun is located

%ule M Folloin* )lstad, Fruit of $oisonous tree is still not applicable to Giranda

-iolations despite #ic=erson.

Doldin* M +h%sical evidence derived from unwarned voluntar% statements is admissible attrial.%ationale M Dickerson 6ourts reliance on =iranda precedents further demonstrates theircontinuing validit%. he e,clusion of unwarned statements is a complete and sufficientremed% for an% =iranda violations.

%re(on v& 9lstad <=>?@:

6ops have arrest warrant. Io to <s house7 do not tell him about burglar%7 do not give him =iranda warnin< makes incriminating statement in home. < arrested after gives statement. (ater7 < waives =iranda andmakes incriminating statement at police station.

a. /ssue is whether 2nd statement should be suppressed b8c of 1 st statement. b. 6t said < was in custod%7 so = violation occurred in <s house.a. Dold: ruits doctrine does not appl% b8c a =iranda violation is not a core violation of the @th

Amendment. b. Different result if 1st statement was coerced: /f 1st statement was not voluntar% within the meani

of the @th Amend7 the 2nd statement would be e,cluded

*1



c. Test: D+ voluntariness test applies. as the 2nd confession knowingl% and voluntaril% made.4 so7 it will not be invalidated merel% because there was a prior7 illegall%5obtained confession havthe same substance.

d. Dickerson is current law on constitutionalit% of =iranda. /s it inconsistent w8 lstad- here is circuit split regarding fruit of =iranda violation.

. wo5tep /nterrogations: Hd then =irandi#ed7 the Re5Hd on +revious tatements 'issouri v Sei*ert

200* J &fficer specificall% another officer to Puestion suspect and not advise her of =iranda rightsHuestioned for 0 minutes and gave incriminating statements. Iiven 20 minute break. hen given=iranda rights7 which she waived. &fficer confronts her with incriminating statement previousl%made. < then basicall% repeats said statement. /s 2nd statement admissible-

To Step Techni&ue M uccessive7 unwarned and warned phases of Puestioning. Could

arnin*s effecti-el2 ad-ise the suspect that he had a real choice about *i-in* an

admissible statement at that unctureK

Anal2sis M he pause was onl% 1@ minutes. Also7 the police did not advise < that her prior

statement could not be used. References to the previous confession made clear the impressthat the further Puestioning was a continuation of the 1st.

D/': /f &s sub3ective intent is '8A to voluntariness !<s persp" how can this be wron

*. Lnowing N /ntelligent aiver 'oran v "ur*ine

19C M P arrested for a murder. hrough <s sister7 an attorne% calls the police station and tells thhe is <s counsel if the% interrogate. &fficer assures law%er that < would not be interrogate(ess than hour later7 police conduct series of interviews with < regarding the homicide. <given =iranda warnings ever% time and signs waiver waiving right to counsel. < neverinformed that sister had retained counsel or counsels call with police.

Doldin* M +olice followed =iranda procedures and < effectivel% waived =irarights.<) STAT)G)9T M ven deliberate deception of an attorne% could not possi

affect a suspects decision to waive his =iranda rights.Contrast )scobedo J here the deception was against the suspect telling hattorne% did not want to see him. ?ere the deception was directed at the attorney5

)ffecti-e %ule M Although a suspect must be informed of his right to assistance ofcounsel7 he is not constitutionall% entitled to know that his counsel wishes to see hi

Corollar2 M &nce the prosecution shows thatuspect full2 informed of =iranda rights N9ot coerced to waive themTD) A9ASIS IS CG$)T) A9# +AI?)% ?AI# AS

A+

Anal2sis M he undisclosed information did not deprive < of the knowledge essentito his abilit% to understand the nature of his rights and the consePuences of

abandoning them.#ue $rocess M Bad police behavior can be caught through Due +rocess.#ISS)9T M =iranda ootnote @ states7 O+olice preventing an attorne% fromconsulting his client is a violation of the C th Amendment right to counsel.

Giranda $olic2 of Ta=in* Ad-anta*e of I*norance M his would seem toinvalidate confession.

@. Reviving =assiah> 6hristian Burial peech "re+er v .illiams <.illiams I@

*2



19;; J < arrested and arraigned in Davenport7 /A for murder that occurred in Des =oines. < receiv=iranda warnings shortl% after he was arrested7 and twice more later. At the arraignment7 < spoke briefl% to an attorne%7 who advised him to remain silent until he saw his Des =oines law%er. < speato Des =oines council7 who tells < not to sa% an%thing until he gets to Des =oines to see him. +oliagreed not to Puestion < while the% transport him to Des =oines. &n trip7 < tell officers in car that would talk to them about the murder after he arrived at Des =oines and spoke to his attorne%. &fficdeliberatel2 sou*ht to elicit incriminatin* information from D. Aware of <s religious nature7 tethat girl needs 6hristian burial. < leads police to the bod%.

Doldin* M <s incriminating statements to the police were obtained in violation of C th Amendment right to counsel.Anal2sis M Identical to Gassiah

Adversar% proceedings !arraignment" had commenced against D7 so ri*ht to couns

attached. /assiah kicks in once adversar% proceedings have begun.

tatements made were the result of deliberate elicitation.D7 could have waived right to counsel via Merbst standard7 had '& waived his rig

+h2 9o ?alid +ai-erK (Herbst re&uires <noin*, Intelli*ent > ?oluntar2

D had been read =iranda rights timesLnew he had a right of assistance of counsel6ourt agreed he understood the warnings6ourt assumed disclosures were voluntar% 'o coercion issue

AnserB here had *een N% .AI49-.%e&uirement of a +ai-er M aiver rePuires not merel% comprehension but relin&uishme

Anal2sis of +ai-er M <s consistent reliance upon the advice of counsel in dealing withauthorities refutes an% suggestion that he waived that right. < not onl% talked to his law%ers both cities before he entered the police vehicle7 but he told the officers in the car that he wotell them the whole stor% after he consulted counsel.Chan*e of GindK J < might have changed his mind after he heard the 6hristian burial speeand hence effectuated a valid waiver.

;ur*erB he 6ourt conclusivel% presumes a suspect is legall% incompetent to chanhis mind and tell the truth until an attorne% is present.Gaorit2 %ule for ?alid +ai-er M &nce the accused asserts his right to counsel7 avalid waiver is possible7 but onl% if the officer re5informs the suspect of his right tocounsel and secures an e,press waiver.$oell Concurrin* %ule M &nce an accused indicates a desire to talk to counsel7 police initiated conversations about the crime should cease.

D/' N ': Discover% Doctrine V /f %ou would have found it an%wa%7 the% get to use it.

C. licitation uhlmann v .ilson

19C J /7 an informant7 was placed in a 3ail cell with instructions to keep his ears open7 avoid aski< an% Puestions7 and to report an% statements made b% D. / follows instructions. +rosecutorseeks to introduce statements made b% < to / in the 3ail.

Doldin* M Cth Amendment is not violated b% the placement of a police agent in a 3ail cell with a

person against whom formal charges have been brought7 as lon* as the *o-ernment does noconduct in-esti*ator2 techni&ues the e&ui-alent of direct interro*ation.

$ro-in* ?iolation M P must demonstrate that police and their informant took some action7 be%ondmere listening7 that was designed deliberatel% to elicit incriminating remarks.

#istin*uish from Denr2 N Gouton J he informant in ?enr% stimulated conversations with theaccused7 and from =oulton where informant asked < to refresh his memor%.

6ase illustrates the line beteen acti-e and passi-e a*ents Ebetween stimulating4 conversations with thein order to elicit4 incriminating statements and taking no action be%ond listening.

;.Chave! v 'artine!

*



. ?armless rror Rule Ari!ona v& Fulminante: here there is an e1plicit promise to protect P if he tal=s7 court finds coercion an

holds statement to be involuntar%.5paid B/ informant offers to protect < in prison. < confessed.5?: here was a credible threat of violence and thus <s will was overborne is such a wa% as to rend

his confession the product of coercion.5Rule: 1armless error rule applies when statement is involuntar%.

9. Knrelated crimesT v& Co** !2001":

5D indicted for burglar% and counsel was appointed. hile in custod%7 < waived = and confessed tomurders of woman and child who lived in house he robbed. Both of the crimes are factuall% relat

' %ule: But Cth A is offense specific. here the same act or transaction constitutes a violation of twdistinct statues7 the test to determine whether there are two offenses or onl% one is whether each provision rePuires proof of a fact which the other does not.4 Blockburger.

5 CA onl% applies to charged crimes !per =assiah". CA is charge specific.5 his case reverses ;reer -. +illiams.5 Knder Te1as -. Cobb7 his CA right to counsel has not attached because he had not %et been charge

with the murder.

). % )S$9#I97 T OTD) I9?ITATI9 (F%G GI%A9#A8B #)S GI%A9#A DA?) A % I7DT T % )GAI9K

1. Dickerson v #S

2000 J < indicted for bank robber%. < moves to suppress statement he had made at B/ field office the grounds he had not received =iranda warnings before being interrogated.

%ehn&uist Gaorit28s Conclusion From Giranda M 6oercion inherent in custodialinterrogation blurs the line between voluntar% and involuntar% statements. =iranda servedconcrete constitutional guidelines.

Anal2sis of 3!5 M ouchstone of admission is voluntariness> no warning rePuirem but a totalit% of circumstances approach.IssueB /s =iranda constitutional or an e,ercise in supervisor% authorit% to regulateevidence in the absence of congressional direction-

+h2 Giranda IS Constitutionalpinion Intended to be Constitional Oconcrete constitutional guidelin

indicates that ma3orit% thought it was announcing a constitutional rule.In-itation to Con*ress to $rotect the %i*ht A*ainst Coerced Self'

Incrimination

Court has ;roadened Application of Giranda Ari#ona8Roberson

)lstadK Do do 2ou )1plain Giranda Seeps ;roader Than !th AmendmentK

his simpl% recogni#es the fact that unreasonable searches under the * th Amendmenare different from unwarned interrogation under @th Amendment.

Shortcomin* of #ic=erson pinion J All assumed that7 Wthe 6ourt would have to eitherrepudiate =iranda7 repudiate the proph%lactic5rule cases7 or offer some ingeniousreconciliation of the two lines of precedent.W he Dickerson 6ourt did none of these things

Compromise pinion M o write an opinion that the liberals would sign the 6hiefcould not write much or strongl% about an%thing.Fruit of $oisonous Tree6)lstad M Did nothing to e,plain that decision. As caliacommented7 Otrue, but supremel2 unhelpful8

#iscussion of Giranda as $roph2lacticK M RehnPuist states7 Othere is some languain our opinions that supports this view> hats all RehnPuist sa%sU But hes the onthat wrote that language in uckerU

#issent Ar*uments

Scalia8s Criticism of Giranda

Court is $re-entin* Foolish Confessions

**



his is not a valid critiPue of =iranda. +olice can use foolishstatements without giving warning up until the% begin to interro*a

n the scene &uestionin*K =iranda warnings are '& rePuired general on the scene Puestioning. =iranda also does not preventfoolish waving of right or foolishl% talking to someone the% dontknow is a cop.

Giranda is Dostile Toards All Confessions not ust Compelled

Confessions

his confuses =iranda and scobedo. scobedo was a much greathreat to interrogations. he logical conclusion of scobedo wouldhave been to bar an% interrogation without a law%er present. =iranmove to a self5incrimination rationale allowed police room tomaneuver.

,clusionar% Rules and the Dickerson Dilemma

?iolation Statement can8t be used

in

Impeachment EseK Fruits ma2 be usedK

@th

A5 =iranda 6ase5in5chief )es )es@th A5 6ompulsion 6ase5in5chief or an%

other part of case 'o 'o

@th N 1*th AD+8Goluntariness

ame as above 'o 'o

Documents

Criminal Procedure Outline