Outline Crim Pro

8/6/2019 Outline Crim Pro

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Search and Seizures

1. 4th Amendmenty protects people against gov. intrusion

against unreasonable searches and seizuresthe persons, house, papers and effectswarrants based on probable cause, supported byoath describingplaces to be

searched and person or thing to be seizedy Analysis

Government action?Search?Unreasonable?

1. If no to the above, no 4th A.violation2. Other non-constitutional issues may apply- e.g. evidence rule

If yes to all three above, then warrant usuallyrequired unless exceptions to thewarrant requirement applied

2. What is a Search Reasonable expectation of privacyy Katz expectation of privacy

Fed agents bugged phone w/o a search warrant and used Katz's conversation as evidence.The 4th Am protect people and not placesIfa person knowgly expresses something to the public no expectation ofprivacyHowever protection applied to what he seeks to preserve as private including uninvited

ear inside phone booth

Two part test1. The person must showan actual, subjective, expectation of privacy2. The expectation must be one that society recognizes as beingreasonable

y Open fields OliverOfficers without search warrant entered private property, ignored No

Trespassing signs, walked around either a locked gate or a stone wall, andobserved marijuana plants that were not visible

Open filed does not provide the setting for those intimate activities that theAmendment is intended to shelter from govt interference or surveillance

1. Unless immediately surrounding the home and used for intimate activitiesy

Curtilage DunnDowned a ranch enclosed by a fence. Another fence surrounded Ds ranch

house. Approximately fifty yards beyond the latter fence were two barns, eachenclosed by its own fence

Curtilage the land immediately surrounding and associated with the homeThree part test

1.The proximityof the land to the home2. Whether the area is included within enclosures surrounding the house3.The nature of the use towhich the area is put


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4.The steps taken by the resident toprotect the land in question fromobservation

y Aerial SearchesRule anything the police can see with the naked eye falls within the plain view docrine as

long as the aircraft is in public, navigable airspace)1. Govsurveillance of activities occurringwithin the curtilage of a house does

not constitute 4th Am search if the surveillancea. Occurs from public navigable airspaceb. Is conducted in a physically nonintrusive mannerc. Does not reveal intimate activities traditionally connected with the

use of a home or curtilage

Ciraolo 1. Surveillance from navigable airspace at 1000 feet of fenced-in backyard

within curtilate of home2. Subjective test was satisfy because of the fence- at least from thestree-level

views

3. Objective test not satisfied4. Curtilage does not preclude observation from public vantage pointa. It was a public airspace where anyone could have seen itb.And the search was not intrusive or harmful

5. What a person knowingly exposes to the pubic, even in his own home oroffice, is not a subject to the 4th Am protection.

Riley1.Aerial surveillance at 400 greenhouse inside curtilage. Plants seen through

partiallyopen roof, warrant obtained2. White no search because helicopter in lawful airspace

a. It was significant that the record did not reveal that intimate detailsconnected with the use of the home curtilage were observed, andthere was noundue noise, nowind, dust or threat of injury

3. OConnor issue is not whether flight was lawful, but whether expectationofprivacywas reasonable.D still failed to

a. If the public is generally expected to traveloverresidential backyardat an altitude of 400 feet, D cannot reasonably expect his curtilage tobe free from such aerialobservation

y High-tech devices not in general public use:If govt obtains special high techs devices, not in generalvicilian use, an employsthem from public places to gain views that could not be had by the naked eye,

the use of such devices will be considered a search1. Kyllo

y Trash and other abandoned propertywill normally not be material as towhich the ownerhas a reasonable expectation ofprivacy.

y Beeper MonitoringKnotts surveillance of a carwhile on the highway


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1. Beeper did not violate the 4th because did not provide the police with anyinfo that they could not have secured byvisual surveillance

2.The beeper did not reveal info about Ds movements within anyprivateplace

Karo beeperon a container inside various homes as well as in public places1. Indiscriminate monitoringofproperty that has been withdrawn from public

viewwould present far too serious a threat toprivacy interests in the home

to escape entirely some sort of 4th A.y Pen Register

Police installed and used a pen register by the telephone company torecordtelephone numbers dialed from a private residence

1. Not a search b/c the device gave onlylimited info, nor are there identitiesof the people that call

2. Subjective test - No expectation ofprivacy b/c the telephone company (a3rdparty) has all the numbers dialed anyways

a. No expectation ofprivacy in the numbers people call3. Objective test- noreasonable expectation ofprivacy in any info that theindividualvoluntarily turns over to a third person

y Dog sniffPlace: canine sniffof closed luggage is not a search (at the airport)

1. Does not require opening2. Sniffonlyreveals contraband (not lawful activity)

Caballes : dog sniff during traffic stop is not a search1. Stopped for speeding, otherofficers brought the dog, it was not requested

by the officer that stopped the

y Is it searchNo search

1. No trespass2. Observable facts3. Info/stuff disclosed to a third party4. Protection against actual, not just possible5. Observation of intimate activity6. No REPin criminalactivity7. No REPin criminalactivity8. No REPunless ownership/control

Search1. Privacy/REPdecouple from trespass2. Lines drawn basedon privacy, decency, civility3. Mannerofobservation/date collection matters: limits to use of sense

enhancing technology toobtain infoon interiorof home

4. Protection against possible not just actual, observation of intimate homeactivity

5. REP decoupled from criminal enforcementIs it reasonable unfeasible without a warrant, unless it falls within an exception.

3. PROBABLECAUSE PC


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y P/C applies to get a warrant, and if it is circumstance where a warrant is not required, apolice officer generally can search or arrest only if there is probable cause.

whether the facts and circumstances before the officer are such towarrant aman ofprudence and caution in believing that the offense had been committedCarrol v. U.S.

Definition1. More than bare suspicion, but less than evidence which would justify

conviction

y Requirements:For arrest: it must be reasonablylikely that:

1. A violation of the lawhas been committed; and2.The person to be arrested committed the violation

For search: it must be reasonablylikely that:1. The specific items to be searched for are connected with criminal activities;

and2.These items will be found in the place to be searched.

y What is Sufficient Belief to Meet the Standard for Probable CauseInfo from Informant- Illinois v. Gates

1. Facts: Gates dealers, live in condos on greenway, most buys done in FloridaSue drives toFlorida, leaves car to be loaded with drugs, fields back, Lanceflies toFL, drives back in loaded car, Sue driving today, Lance flying in fewdays to drive back, Carwilll be loaded with 100,000 in drugs,

a. Observed facts: found drivers license for Lance and current address,confirmed on flight toFlon May 5, observed Lance arrive in FL andtaxi to Holiday inn, room registered toSusan

2.Aguillar-

Spinelli testa.Tip fails A-S testi. Was the info Credible

ii. Was the info reliable1. Unclearwhether author is hones and inforeliable2. Does not covey basis forknowledge and predictions

iii. The tip standing alone did not satisfy the twopronged Aguilartest

b.No more A-S test, but Totality ofCircumstances analysis balanced assessmentof the relative weights of all the various indicial of reliability and unreliability

attending an informants tipi. The facts in A-S test basis ofknowledge and veracityremain

highlyrelevant in determining the value of the informants tip,but strong showingon one of these factors can make up aweakshowingon the otherone

ii. PC is fluid, nontechnical, common sense conception, based onfactual and practical consideration of everydaylife on whichreasonable and prudent men, not legal technicians, act.


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iii. Corroboration: provides basis for crediting tipwith predictedfacts

iv. P/C can be based on innocent behaviorv. Factualreason to believe that criminal contraband will be

found in the place that the tip specified there is P/C in thetip itself

Maryland v. Pringle1. Car stopped for speeding, diver/owneropened the glove box and officer

sawrollof cash, consent to search the car, drugs and money, all 3questioned about drugs, all silent, all arrested. Pringle (not driving, drugs inback) confesses it is his, moved to suppress the confession as fruit of illegalarrest

2.To determine whether an officer had a P/C to make an arrest, the courtmust examine the events leadingup to the arrest, and then decide

a. whether these historical facts, viewed from the standpoint of anobjectivelyreasonable police officer, amount to P/C

3. In these facts, it was reasonable for an officer to infer that anyperson in thecar had knowledge and dominion and controlover the drugs

WhrenSubjective intent does not matter, as long as there is P/C to make atraffic stop

1. Officers stopped a vehicle that stopped at a stop sign forunusuallylongtime and after the officers turned backtheirvehicles, the vehicle turnedwithout a turn signal at high speed. The officers stopped the truck, and sawtwolarge plastic bags that contained crackcocaine.

2.All traffic stops constitute seizure ofpersons and police officers must haveprobable cause to believe that a traffic violation has occurred

a. Subjective intent alone does not make otherwise lawful conductillegalorunconstitutional.b. Courts test: a traffic stop is valid if an objectively reasonable

officer would have found P/C to believe a traffic violation hasbeen committed.

Arresting officers state of mind irrelevant to the existence ofP/C Alfordv. Devenpeck

1. Mismatch b/w stated basis for arrest (recordingw/o consent of bothparties does not equal crime) and possible basis for arrest (impersonating anofficer equals crime) is OKas long as the cir. Viewed objectively, justifythe action

2. SounderWhren and Alford, if a police officer has a hunch, he can followthe Duntil he makes a traffic violation and arrest him on P/C for trafficviolation. The motive of the officer is irrelevant as long as there is P/C forthe stop

y Warrants RequirementsStandard for getting a warrant for arrest or search


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1. nowarrants shall issue, but upon probable cause, supported byOath oraffirmation, and particularly describing the place to be searched, and thepersons or things t be seized

Is a warrant required::1.A warrantless search presumptivelyunreasonable, unless fits an exception to

warrant requirements2.Trend: reasonableness analysis, W is part of that analysis

Process:1.Agent swears out application with 4 elements2. Judge puts agent underoath to consider & sign warrant3.Agent executes, presentingwarrant

What Form Must the Warrant Take?1.Andresen

a. Warrant foroffices of att.Investigated forreal estate fraud regardingLot 13T

b. Issue: did broad language togetherwith other fruits,instrumentalities and evidence of crime at this (time) unknownconvert this to a generalwarrant

c. Court: 4thprohibits exploratoryrummaging so nothingleft toofficers discretion.But this was not a general warrant

2. Groh-a. Warrant failed tolist the items to be search and seized, and instead

described two-story blue house in space for describingperson/property to be seized.

b. Majority: Lackof description rendered warrant facialy invalid andthus warrantless

Anticipatory warrants1. Defined: warrants contingent on predicted event2. Court allows underGrubbs (got a warrant that will be executed only after a

controlled deliveryof contraband to that location), subject to 2 partprobable cause analysis

a. Fairprobability that triggering event/condition willoccurb. Probability that items/contraband will be found in place described

Executing Warrant1. Okto detain those present during search (b/c preventing flight by the

individual in case incriminating evidence if found, minimizing the riskofharm to the police, and helping the police complete the search in the eventthat questions arise) Michiganv.Summers

2. Muehler v. Mena:a. Okto handcuff and detain for 3 hours those present during

execution ofwarrant and question about immigration status, solongas questioning does not prolong the detention

b. UnderSummers, authority to detain incident to search is categorical the authority touse reasonable force to effectuate the detention


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i. Here the force used was reasonable because the warrantauthorized a search forweapons and a wanted gang member

c. QuestioningMena during detention:i. Circuit: reasonable suspicion required for questioningii. Court: noR/Srequired for mere police questioning not an

additional seizure, questioning did not prolong seizure

Knock and Announce1. Knockand Announce is part of the Reasonableness analysis of the 4th

Wilson v. Arkansasa. Facts: police executing a search warrant to drugs at home found man

dooropen, pushed open unlocked screen door and enterdb.The knockand announce was created to

i. Avoid break ins, damages, assumes complianceii. Exceptions: threat ofviolence, retreat for escapee, possible

destruction of evidence2. Case by case, exception toK&A is based on Reasonable Suspicion that

K&A would be dangerous, futile, inhibit investigation Richards v.Wisconsin

a. Facts: Got a warrant, the judge crossed out the exception toK&A,but when the police went to the motel and D saw the police heclosed the door and the police knocked down the door.

b.The court stated that under these circumstances the police hasreasonable suspicion that Dwill destroy the evidence, and it did notmatter that the judge crossed out the exception.

i. The K&A reasonable suspicion exception is at the time of theexecution of the warrant and not at the time of signing the

warrant.3. No Violation when police wait only 15-20 min Banks4. No exclusionaryrule forK&A violation Hudson

Mistake when executing a warrant1. Factual mistake does not invalidate warrants Maryland v. Garson

a. Police got a warrant forMcWebbs apartment and believed that therewas onlyone unit based o the investigation (verified informants info,exterior exam of building, inquiry toutility company).When thepolice executed the warrant, theywent toGarrison unit and founddrugs, cash, paraphernalia before discovery the mistake.

b.The Court stated that the validityof the warrant must be assessed onthe basis of the info that the officer had at the time of issuance (whenthey got the warrant).

c. Further the mistake was objectivelyunderstandable and reasonableand thus did not violate the particularityrequirement of the 4th

2. Rettelea. Facts: after 3 months investigation (investigation on home, dmv

records, mailing address, listings, outstandingwarrant, internettelephone directory), Wobtained for 2 houses for evidence of fraud


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& identity theft.Entered the house, held the naked homeowners atgun point for 3-4 minutes before alloed to coverup and discoveringmistake.

i. Compared toGarson here the police got info from outdatedorpossiblyoutdated sources

b. Court said noviolation of the 4th b/c safety concerns, race notimmediately apparent, not prolonged detention

i. Timingwas of importance in this case.ii. Unreasonable actions include the use of excessive force or retrains that

cause unnecessary pain or are imposed for a prolonged and unnecessaryperiod of time

y Exceptions to WarrantsSearch Incident to an Arrest

1. Immediate areaChimela. Facts:Arrest warrant, no search warrant, no consent, but searched the

whole house and seized any coins they found.

b. C

ournt stated that a police officer may search the person arrested toremove weapons and prevent concealment or destructin of evidence.i. Search is limited to area within his immediate control area

that he might gain possession of a weapon or destructibleevidence

ii. Must occur at the time of the arrest2. Search a person incident to arrest regardless of the crime that led to

the arrest Robbinson3. No full search for incident to a traffic citation Knowles v.Iowa

a. Traffic violation, stopped- citation, underIowa lawhe could havebeen arrested, no P/Cor consent to search

b. Court: actual arrest must occur for full search,i. Routine traffic stop is a brief encounter, patdown forweapons

permitted if justified byreasonable suspicion that occupant isarmed/dangerous

Hot Pursuit1.2. Okto enter a home without a warrant to make arrest topursue suspect

matching description of armed robber after crime Haydena. Okto search whole house, seizing items in washing machine, under

mattress, and in bureau drawerb. Seizures occurred prior toor immediately contemporaneous with

Haydens arresti. They acted reasonablywhen they entered the house and

began to search for a man of the description the had beengiven and forweapons which he had used in the robberyormight use against them.

c. Scope: as broad as mayreasonably be necessary toprevent thedangers that suspect mayresist or escape


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2. Chambers exception applies when car at station, post-arrest. Nodifference b/wholding and getting a warrant, or searching immediatelywithout a warrant

a. Carlooked like the car involved in robbery, stopped, afterpolice sawthat the suspected looked like the robber, arrested him, tookthe car,and then they searched the car

3. Carney Authorizes warrantless search of mobile home based on probablecause and mobility exigency

a. Lesser - expectation -ofprivacy because of the readily mobilityof theautomobile

i. Home warrantless search unreasonable1. Home attributes: private dwelling, intimate activities2. Mobile home attributes: curtains, doors make private,

intimate activities, used as a dwellingii. Car probable cause justifies warrantless search

1. Car attributes: moves, main purpose is transportation,open topublic view, extensivelyregulated

2. Mobile home attributes: mobile, key, ignition, primarypurpose is situational

Containers in Automobiles1. Containers, such as luggage, can be searched without a warrant only if there

are exigent circumstances2. But if there is probable cause to search a vehicle, the court has said that the

probable cause extends to the containers within ita. Limited only by the size and nature of the items forwhich there is

probable cause to search

3. Court allows warrantless search of containers in automobile based on P/Cto believe contraband/evidence exists, plus exigencyof disappearance ordestruction

4. Chadwick:Okto seize container in trunkbased on P/C, but need a warrantto search it

5.Arkansas v. Sanders:Okto search taxicab forluggage based on probablecause, but need warrant toopen luggage

6. Ross:Okto search paper bag found in car trunk, when police had probablecause to believe drugs in trunk

a. If there is probable cause t search a stoppedvehicle, that search mayextend to anypart of the car (truck, glove compartment, interiorofupholstered seats) and anypackage, luggage, orother containers thatmight contain the object of the search.

i. Search for a person, may not give the right toopen glovecompartment

7.Acevedo: Okto search all containers in trunkbased on P/C to search vehiclea. Facts: Coleman follows Sazahome, Acevedo emerges from Dazas

apartment with brown paper bag, places in car trunk.i. Therefore, P/C to search the trunkforpaper bag


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b.The police is not required toobtain a warrant toopen a containerfound in a car even if theirprobable cuase to search is limited to justthat container, and not the car itself

c. Police may search an automobile and any containers within it whenthey have probable cause to believe contraband or evidence of crimeis present anywhere inside, but onlywhere the item might be hidden(size and shape of the object is the onlylimitation on searches)

8. Houghton no individualized P/Crequired to search passengers purse ifP/C for car

a. As long as passengers belongings are capable of concealing theobject of the search, and the police has P/C to search the car, thenpassengers belongings can be searched

Search Incident to Arrest: Automobile Exceptions1. P/C to search car for evidence/contraband2. Contraband inside car: probable cause to search car/containers in it (or

trunk, with P/C)3. Search Incident to Arrest

a. Arrest person (P/C) -> search car and containersb. Belto a police officer may, contemporaneous to the arrest of an

occupant of an automobile, search the passenger compartment andall containers found therein, whether the containers are open orclosed.

i. Facts: speeding, stop, smellof burned marijuana in the vehicleand the officerobserved an envelope on the floorof the carmarked Super-gold and associated with marijuana.Removedthe 4 occupants from the car, each occupant at each cornerof

the car, opened the envelop, and searched the car including thepassenger compartment.

c. Thornton- Belton extended toD that have recentlyoccupaid the carbefore officer initiated contact.

i. Thorton followed in car, parks, exits, stopped bypolice, patteddown, questioned about buldge in pocket & answer Yes todrugs, arrested for drugs, handcuffed, in backofpatrol car, carsearched and gun found.

d.AfterBelto&Thortoni. NOTE: the trunkand engine compartment falloutside the

bright-line rule ofBeltonii. Applies when:

1.The arrestee was an occupant or a recent occupant ofthe vehicle at the time of the initial contact with thepolice

2. Substantially contemporaneous search need to nottake place when the arrestee is in the automobile, aslong as he and the vehicle are still at the scene when thesearch occurs.


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i. Is suspect in custodyii. Did he have knowledge of a right torefuseiii. Lookat the tactics used by the police to secure consent as well

as the particularvulnerabilities of the subject (age, intelligence,levelof education, emotional state) to determine whether theconsent was coerced orvoluntary

iv. Treat, pressure, intimidation, or harassmentv. Presents of a large # ofofficers, repetitive requests for consent

after an initialrefusal6. Drayton the consent to search the person @ bus

a. Facts: 3 officer, 1 in Drivers seat, 2 working through the aisle,officers stand with each passenger, askabout travelplans & luggage,passengers free to not cooperate or exist bus

b.The court stated that the consent of the second person, Drayton, wasvalid consent even though he stated he did not feel free torefusesince his friend was already caught with drugs after giving consent

c. Court looked at the factors to conclude valid consenti. Nothing coercive or confrontationalii. No application of forceiii. No brandishingofweaponsiv. No blocking exitsv. No threat, command, authoritative voicevi. Bus setting does not change characterof encountervii. Reasonable person may feel even more secure with witnesses

present7. Georgia v.Randolph for consent to be valid, person must have authority

to consenta. Facts: Husnband unequivocallyrefused consent, wife readilyconsented before withdrawing it, officer saw straw, but did not get itbefore conset withdrawn, got warrant, husband syas warrant relied onviewgained with invalid consent

b. Generally co-occupant has authority to consent to search but aphysicallypresent co-occupants stanted refusal topermit entryprevails

i. Authority and access to the property.ii. The third party need not have actual authorityover the area,

but apparent authoritywill suffice.c. Court ruled the search unreasonable and ordered the evidence

suppressed, but the court stated that there Ilimit to that rule, wherethe police could enter if:

i. Need forprotection inside the house domestic violenceii. Exigent circumstance, destruction of evidence

8. Admin Searchesa. Camara v.MunicipalCourt ofCity

i. Facts: resident prosecuted for failure to allow inspection


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ii. Justification: need to enforce regulations and safety, health, etciii. Concerns: absent warrant, occupant has nowayofknowing (1)

authority for inspection under code, (2) limits on scope; (3)whether inspection has authority

iv. Test: Occupant can refuse consent and insist on warrant basedon code

1. No specific knowledge required, passage of timesufficient

2. Exception: emergency, consentb. Burge- nowarrant needed to inspect junkyard for bus, license &

police booki. 3 criteria for commercial inspection exception:

1. substantial government interest (regulatingvehicle theft)2. Search = necessary (yes)3. Constitutionally adequate substitute forwarrant:

authority, scope, no discretiona. He lawcontains time, place and scope

restrictions9. Drug Testing

a. Employmenti. Yes: railroad workers after accidents (oktoprosecute, too)

1. Customs workers doingrug interdictionii. No

1. Customs workers handling documents2. Political candidates (symbolic, not special)

b. Schools- special needs b/c warrant requirement would interfere withsw

ift and informal discipline processi. Yes: students in athletic events, Veronica SchoolDist.ii. Yes: Students in all extracurricular activities- Pottowatomie

c. Redding: schoolofficers could search a students purse based onReasonable Suspicion; measures must be reasonablyrelated toobjective and not excessively intrusive in light of the age & sex ofstudent and nature of infraction

i. Here: need R/S dangeror that drugs concealed in underwearbefore search involved exposure to intimate parts

1. Savana denies items in herplanner are hers2. Denies knowledge about iuprofen pills3. Referred to nurse forpullout/share out search of

underwear & bra4. Okto search backpack& outer cloths5. For quisi-strip search, generalized suspicion insufficient

d. Ferguson- court says crackscreeningofpregnant women does notmeet special needs test because although ultimate goal is child andmother health, immediate objective is to generate evidence forlawenforcement


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Exigency1. Hot Pursuit

a. Okto enter/search home forrecent armed robber and weapon notOkto enter home without warrant forroutine felony arrest

b. Gravityofunderlyingoffense is very important factori. Nor non immediate, continuous pursuit for crime scene no

hot pursuit

2. No blanket warrant exception to investigate murder scene, Mincey3. Okforpolice to enter home ifreasonable basis to believe person inside is

seriously injured or imminently threatened.Brigham City4. Seizures & Arrests

y Arrests must be based on probable cause, & warrant is not required solong as there isprobable cause

The police must have adequate cause to seize the individual and, in case of anarrest in a home, must usually have an arrest warrant.With arrests orotherseizures tantamount to an arrest, P/Crequired.With less intrusive seizures, a

lesser standard reasonable suspicion is satisfactory, and in relatively fewcircumstances, the police may briefly seize a person w/out any suspicion at all

P/C that a person has committed a felonyA misdemeanoror felonywas committed in his presenceWatson:Ok to arrest Watson for possession of stolen credit cards

1. P/C in this case to believe that Watson had violated 1708, the officerswere acting strictly in accordance with the governing statute and regulations

y When is a person seized?Seizure = officer, by means ofphysical force or showof authority, has restrained

in somew

aylibertyof a citizenArrest, stop & friskMendenhallseizure if a reasonable person under the circumstances would

believe that he or she was not free to leave1. Facts: twopolice officer approach D, askto see her identification and airline

ticket, sawdifferent name on ticket, when agent identify himself as federalnarcotics agent, D became shaken, extremely nerveous, then returned ticketand asked her to accompany him to the DEA office for further questioning,D consented

2. No seizure occurred when the police first accosted D, and then D gave herconsent

3. example of cir. That might indicate a seizurea. Threateningpresence of severalofficers, the displayof a weapon by

an officer, physical touchingof the person of the citizen, or the useoflanguage or tone ofvoice indicating that compliance with theofficers request might be compelled

Hodarya suspect fleeing police pursuit is not seized until restrained byphysical force or show of authority


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1. Facts: D sawpolice, started running, officer chased him, at the time ofencounterD drops drugs, and then he is tackled.Questions was whetherDwas seized the moment the pursuit begins, oronly if and when he iscaptured.

2. Free toleave test is modifies showof authoritya. Seizure would not occur by showof authority, even ifD believes that

he is not free to end the encounter as he wishes, unless and untilD

actually submits to the officers authority. (soordering to stop, oreven firing a gun in the air might not be sufficient for an actualseizure).

y Free to LeaveTest for seizure during consensual search requires on bus: whether a person

would feel free to decline the officers requires orotherwise terminate theencounter- Florida v. Bostick

But in Drayton, no seizure if a reasonable person would feel free to terminatethe encounter, then or she has not been seized.

Passengers are seized when they are riding n a car stopped officers (and maychallenge stop) Brendliny For What Crime May a Person be Arrested?

AtwaterOk to make custodial arrest for even a very minor criminaloffense (bright line rule)

1. Soccer mom arrested for 50 seat belt violations2.All 50 states + DC allowed warrantless arrest for misdemeanoroffenses

w/o breach ofpeach5. Stop & Frisk Reasonable Suspicion

y Reasonable suspicion that criminal activity is afootTotalityof circumstances the detainingofficer must have a particularized and objective bas

for suspecting the particularperson stopped of criminal activity

Due regard is granted to the officers unique experience and trainingOr based on inforeceived from an informant, but does not need torise to the levelof

reliability as in probable cause analysis

May be based upon an anonymous telephone tip as long as the police are able to corroboratecertain of its details

y Since a friskor a path down constitutes a further intrusion, it requires additional justification:reasonable suspicion that the suspect may be armed and dangerousRestricted to that which is necessary to discoverweapons usually an initialpat-down of the

suspects clothing to determine whether he is carrying a weapon, followed by a reach intopockets orother hidden areas if (and only if) the pat-down reveals the likelypresence of aweapon


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y Terryv.OhioFacts:

1. Before the stopa. Officerplainclothes, 2:30 p.m., 2 unknown men standingon the

corner, who did not lookright, each manvies store 2 times &confers, 12 tips (24 views); 3rd man arrives, confers, leaves, downEuclid Ave., after 10-12 min, 2 men walkoff down Enclid, suspects 2are casing a job, a stickup & may have a gun

2. Stopa. 2 men by Zuckers store, officer approaches, Idd himself, asked

names, the men mumbled something, officer grabbed Terry, spun& pated down outer clothing, felt a pistol, reached in pocket, unabletoretrieve, ordered men in store, removed Terrys coat, removed gunfrom pocket, patted down outer clothingofother men, finds gun onChilton

Structure/Theory1. Balancing interest view: spectrum ofpolice encounters with escalating set offlexible responses2. Narrow, rigid view: P/C for seizure, seizure= arrest

a. Stop & frisk is not a seizurei. However, stop & friskdoes fallwithin the 4th A. The court

stated that Terrywas seized, although less intrusively than if hehad been arrested, at least as soon as the officer initiatedphysical contact with Terry in order to search him

ii. However, since this was a rubric ofpolice conduct necessarily swift action predicated upon the on-the-stop

observations of a police officeron the beat- which historicallyhas not been, and as a practical matter could not be, subjectedto the warrant procedure, and therefore this falls outside theWarrant Clause that requires P/C.

iii. Here the inquiry is the reasonableness in all the circumstancesof the particular gov invasions of the citizens personalsecurity.

3. Precise issue: reasonableness ofpad down here forofficer safety absentP/C

a. Immediate interest assuring that the suspect was not armed with aweapon that could unexpectedly and fatally be used against theofficer

b. certainly it would be unreasonable torequire that police officers takeunnecessaryrisks in the performance of their duties. Americancriminals have a long tradition of armedviolence

4.Application:a. Nature and timingof seizure and searchb. Practical implications of approachc. BalancingGovt interest against intrusion


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Terry Test1. When an officer has reasonable suspicion observes unusual conduct which

leads him reasonably to conclude in light of his experience that criminalactivity may be afoot and that the persons with whom he is dealing may bearmed and presently dangerous

a. Officer acts reasonably is not upon a hunch but on specificreasonable inferences which he is entitled to draw from the facts in

light of his experience2.And that suspicion is not dispelled in encounter3. He may friskcarefullylimited search of the outer clothing to discover

weaponsa. The purpose of Terry search is limited: to determine whether the

suspect is armed.Unlike a search incident to an arrest, a Terry-typesearch is not justified by any need toprevent the disappearance ordestruction of evidence of crime.

4.Any seized weapons may be introduced into evidencey

Stop v. ArrestArrest:

1. Custodial interrogation at station, Dunawaya. The police tookD into custody at his neighbors home, and

transported him to a police station for questioning. Although told notunder arrest, the Court treated the seizure as a de facto arrest

2.Taking suspect from the public area of an airport to smallroom at airport,Royer

a. The difference from Mendenhallwhere the Court ruled that it was notan arrest, is that in Royer the police held the tickets & IDof the D

and they asked whether he can accompany them toroom3. Fingerprinting at station,Hayes

a. But fingerprinting in field unclear4. Detainingluggage 90 min = arrest, Place

Stop = detaining suspects for DEAagent to arrive, Shape1.The court emphasized that there was no delay unnecessary to the

legitimate investigation on the law enforcement agents.a. (1) the officer pursued his investigation in a deligent and reasonable

mannerb. (2) the method of investigation was likely to confirm or dispel the

officers suspicions quicklyc. (3) the detention lasted nolonger than was necessary to effectuate the

purpose of the stop2. Necessary time to complete the preliminary field investigation in

Hernandez(the balloon swallower 16 hours was the time necessary to await abowel movement)

3. Orderingpeople in a car to stepout of the carrequires no additionaljustification assuming he initial seizure was lawful


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y What May Police do When they Stop an IndividualOkto dolimited search forweapons within reach area accessible after stop,Michigan v. Long

Ok, incident to arrest, to conduct a limited protective sweepof those areas of ahouse in which officerreasonably suspects dangerous person may be hiding Michigan v. Buie

Okto askperson toID himself HiibelOkto search students backpackand outer clothing NJv. TLOHiibel

1. F

acts: Domestic violence, man at his truck, asked forID, refused, Dconvicted of failing to identify himself during a stopunder stop &identify law

2. Courts reasoning: The court has recognized that a lawenforcementofficers reasonable suspicion that a person may be involved in criminalactivitypermits the officer to stop the person for a brief time and takeadditional steps to investigate further.

a. Terry stop must be limited, and the officers actions must bejustified at its inception, and.Reasonablyrelated in scope to thecir.Which justified the interference in the first place.

3. Justification:a. Name is useful, reasonablyrelated to stopb. Name request is limited, routinec. Okthat refusal to answer may be a crimed. Name request does not alter nature of stop itself

y What is Sufficient for Reasonable Suspicion?R/S for Stopped Cars

Summary Standard of Justification required at each step of encounter of a citizen by thepolice

2. Ifpolice merely question an individualon the street without detaining her against herwill, the4th A is not implicated

3.At the point at which a reasonable person would believe she is nolonger free toleave and isbeing detained, a stop has occurred and 4th A is triggered, requiring that the officer havereasonable suspicion that criminal activity is afoot.

4.To support the additional intrusion of a pat-down frisk, the officer must have reasonablesuspicion that the subject is armed and dangerous

5. If the nature and duration of the detention rise to the levelof full scale arrest or its equivalent,P/C must be shown


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1. Arvizu totality of circumstances test, even if all the factors alone maybe susceptible of innocent explanation, taken together may provideR/S

a. Facts: @ inland border checkpoint, a minivan set two sensors off atthe same time as weeks ago, minivans are used by smugglers, driverslowed, stiff, avoided eye contact, kinds feet propped up, allwaived,avoided checkpoint,

b. Justificationi. R/S that criminal activity may be afootii. Totality test, no set ruleiii. Rejects divide & conquer strategyon innocent conduct

R/S based on Informants Tip1. Satisfied on basis of a lesser quantum of evidence, but alsoon the basis of

info that is less reliable than that required to showprobable causea. Same factors as in P/C the informants basis ofknowledge and her

veracity2. White: Prediction of future events & info that police could corroborate

a. Facts: Tip by caller, Dwould leave apartments at specific time, inPlymouth wagon w/ broken taillight, toDobeys Motel, with cocainein case

i. Observed: Dleft empty-handed in wagon, stopped just beforeDobeys, marijuana inside case, 3mg cocaine on her

b. Rationale: Sufficient forR/Si. Court focused on the predictabilityof future actionsii. When significant aspects of the callers predictions were

verified, there was reason to believe not only that the caller

was honest but also that he was well informed, at least wellenough to justify the stop

3. J.L-it is not enough that the informant merely knows something non-criminal (location & appearance) about the suspect

a. Facts: Tip by called- a young blackmale at particular bus stopwearingplaid shirt is carrying a gun. No audio, no fact on tipster

i. Observed: blackmales just handingout at bus stop; J.L. (15y) in plaid shirt

ii. Police friskJ.L, seize gunb. Court: no sufficient reliable tip

i. Just because a tipprovided an accurate description of aparticularperson at a particularlocation, does not mean it isreliable info

ii. Essential to the case is predictive info that the police couldcorroborate holding in White

R/S based on a Perons Trying to Avoid a Police Officer1. Unprovoked flight motivated by the presence of a police, and a high crime

area is sufficiently suspicious to justify the seizure of a fleeing individual, at


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least in the absence of special cir. That render the flight innocent inappearance

2. Illinois v. Wardlowinnocent behavior can be sometimes a justificationto stop a person

a. Facts: officers in a police caravan in a havy drug trafficking area, Dstarding next to a building, in possession of an opaque bag, w startedrunning, officer

b. Court: Terry accepts the riskthat officers may stop innocent people,the place of the event was a relevant factor, and the unprovokedflight from the police was also a factor intoraising a R/S for ajustified Terry stop.

R/S based on Profiles1.Agent must articulate suspicion based on observed facts. Profile does not

detract from evidentiary significance of those observations6. Exclusionary Rule

y Provides that evidence obtained byviolatingDs constitutionalrights may not beintroduced by the prosecution at

Ds criminal trial, at least forpurposes ofprovidingdirect proofoDs guilt

y Judge made rule, not statutoryruleNot required by the Constitution

y Before HudsonWeeks(1914) evidence obtained in violation of the 4th A excluded in federal

prosecutions

Wolf: 4th A incorop., but not exclusionaryruleMapp: exclusionary rule incorporated

1.Justifications:a. Exclusion deters constitutionalviolation bypolice

b. Deters use byStates ofunconstitutionally seized evidencec. Serves the imperative of judicial integrity

Leon: the good faith exception1. Rule: court will not suppress evidence obtained in good faith reliance on

invalid warrant2. Suppression if:

a. Police misled magistrate with false informationb. Magistrate wholly abandoned his judicialrolec. Warrant is solacking in indicia of P/C as torenderofficial belief in

its existence entirelyunreasonabled. Warrant facially deficient, not particularized

y Hudson -No exclusionary remedy for evidence obtained in violation ofK&Arequirement

Rationale:1. Exclusionaryrule is onlyused as last resort, not our first impulse2.The exclusionaryrule has never been applied except where its deterrence

benefits outweigh its substantial social cost


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3.There is a danger that if the police wait toolong they maylose evidence4. K&A does not apply ifR/S that knocking futile, dangerous5. Deterrent value limited6. Other deterrents are there forviolation ofK&A: civil suits, professionalism

ofpolice, internal discipline

y Herring-No exclusion of evidence seized based on outstanding warrant that iswrong due to police error:

1. Deterrent effect must outweigh harm to justice system2. No suppression fo NEGLIGENT error3. Oss.Suppression for systemic erroror deliberate/rickelss disregard of

constitutionalrequirements

Culpability/Deterrence Value1. Whose errorwas it?2. How culpable was the error?

y 4thAmendment StandingIn general, D may assert the exclusionaryrule only to bar evidence obtained

through violation of his own constitutionalrights.D may not keepout evidenceobtained through police action that was a violation of Xs rights but not aviolation ofDs own rights

Old: must be target of search includes anyone legitimatelyon premises JonesNow:

1. D must allege own 4th A violation2. 4th Am standing = D must have legitimate expectation ofprivacy in the

place searched

Challenging the illegality and analysis of standing should be separate -> firstanalyze standing, and then illegality

Rakas:car passengers cannot challenge search because1. Noproperty/possessory interest in caror seized gun2. Nolegitimate expectation of privacy in glove box & under seats3. Facts: robbery, description of a car, police stopped a car, ordered all

passengers to exit the car, search the car and discovered a box ofrifle shellsin the glove compartment. The petitioner moved to suppress the evidence,but theywere not the owners of the seized items or the car

4. a person who is aggrieved by an illegal search and seizure only through theintroduction of damaging evidence secured by a search of a third persons

premises orproperty has not had anyof his 4th A rights infringedGuest in home

1. Minnesota v. Olsonovernight guest have standinga. The Court reasoning that societyrecognized a guests expectation of

privacy in the hosts home in such a situation2. Jones- Friend using apparent as sole occupant has standing3. Carter- drug dealers for 3 hours to package drugs do not have standing

a. Commercial activityless protected


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b.The court said no expectation ofprivacy because of the purelycommercial nature of the transaction, the relatively short period oftime on the premises, and the lackof anyprevious connection b/wrespondents and the householder

Occupant in a Vehicle-1. Brendlin-when the police stop a vehicle, both the driver and any

passenger have standing to challenge the constitutionality of the

vehicle stop

a. Facts: w/o P/C, a police officerpulls over a vehicle driven by thedriver and a passenger. Police asks passenger to get out of the car,pats him down, and finds an illegalweapon.

b. Even though the passenger did not have possessory interest in thecar, the passenger has standing to challenge the initial stopof thevehicle, since the stop acted as a seizure on the passengers person

i. Reasonable person on Brendlinsposition should have notbelieve that he can terminate the encounter b/whim and thepolice officerwhen the carwas stopped = seizure underMendenhall

y Exception to the Exclusionary RuleEven if there is 4th A violation, there are certain situations that the exclusionary

rule does not apply

Independent Source1. when the police have twopaths leading to info, and onlyone of these paths

begins with illegality, the evidence is not deemed fruit of the poisonous tree,and is not barred by the exclusionaryrue

a. Segura agents unlawfully entered the Ds apartment and remainedthere until a seach warrant was obtained.But the court held thatevidence found for the first time during the execution of the validand untained search warrant, was admissible b/c it was discoveredpursuant to an independent source

2. Murray -evidence derived from illegal search excluded, unless soattenuated as to dissipate the taint

a. Facts: the police got info from informant, federalofficers have beensurveiling the petitioner and the co-conspirators, the police enteredthe warehouse, saw in plain viewnumerous burlap-wrapped balesthat were later found to contain marijuana, got a warrant not basedon the observation, and then went to the warehouse and seized theplain viewevidence

b. GeneralRule: evidence derived from illegal search excluded, unlessso attenuated as to dissipate the taint

i. Whether the search pursuant towarrant was in fact a genuinelyindependent source of the info and tangible evidence at issue

1. So if the illegal evidence prompts the officers decisionto seekthe warrant, or if infoobtained during the illegal


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entrywas presented to the Magistrate and affected hisdecision to issue the warrant

c. Justification: exclusion would put the police in a worse positionthan absent any error b/c they are risking the exclusion of allevidence

d. FactualQuestion: was the search genuinely independent?i. No, if decision to seekwarrant motivated by illegal search

ii. No, if tainted infopresented & affected decision to issue WInevitable Discovery

1. Evidence may be admitted if it would inevitably have been discovered byotherpolice techniques had it not first been obtained through the illegaldiscovery

2. Nix v. Williams- Govt must establish by a preponderance that infowould have been discovered by lawful means

a. Facts:i. Police promised not to question D

ii. En route: Christian burial speech violation ofMirandaiii. Body found within the area to be searched

b. Govt must establish by a preponderance that infowould havebeen discovered bylawful means

c. No absence of bad faith neededFruit of the Poisonous Tree

1. The exclusionaryrule applies if there is a substantial causal connection b/wthe illegalpolice behavior and the evidence. ALL EVIDENCE THAT IS

TE PRODUCT OFILLEGAL POLICE ACTIVITY must beEXCLUDED

2. Wong Suna. Police illegally broke into the house, handcuffed D and held him atgunpoint, D confessed, arrested, charged, and released on his ownrecognizance, then questioned afterMiranda

i. @ the time of the arrest confession must be excluded b/c hisarrest was illegal and the confession was the fruit of the illegalarrest

ii. second statement was not excluded b/c the earlier illegalpoliceactivity became so attenuated as to dissipate the taint

3. Browna. Facts: 8pm illegal search and arrest ofBrown, 9 pm- at station, M

warning and 1 statement, left station, arrested co-d, returned, 2-3 am-at station, Mwarnings, 2nd statement

b. Court: 1st and 2nd statement = fruit ofpoisonous treei. Miranda alone does not deter a 4thA violation.

1. This would encourage that evidence derived there fromcould well be made admissible at trial by the simpledependent of givingMiranda


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ii. To breakcausal chain must show statement was sufficientlyan act of free will topurge the primary taint of the unlawfulinvasion

iii. Case by case, burden on govt1. Facts to consider

a.Temporalproximityof the arrest and theconfession

b.The presence of intervening cir, and particularlythe purpose and flagrancyof the officialmisconduct are allrelevant

2.The voluntariness of the statement is a thresholdrequirement

4.AfterBrowna. Rawlings v. KY

i. Admissible: statements made during illegal seizure at homewhen police left to get a warrant

ii. Factors: lackof flagrant misconduct, lackof coerciveatmosphere, statements spontaneous to discoveryof evidence

b. NYv. Harrisi. Admissible: statement at station, after illegal home search

1. Suppressed 1st statement at home2.Admitted 2nd statement at station3. Suppressed 3rd statement after Harris wanted to end

interrogationii. Justification

1. UnderBrown, P/C for arrest2.

2

nd

statement not product ofw

arrantless arrest3. 4th A protects evidence & statements inside homeiii. Factors statements v. evidence, different place & time

c. US v. Patanei. Admissible: Physical evidence obtained in violation ofMiranda

5. Franks hearinga.To get a Franks hearing

i. Must allege that affidavit for search warrant contains deliberatefalsehood orreckless disregard for the truth

ii. Offerproof, affidavit and reasonsiii. Must specify false statementsiv. Affiant = sole focus, not confidential informant

b. No hearing if sufficient other content in affidavit to support issuanceofwarrant

7. Fifth Amendmenty Noperson shall be compelled in any criminal case to be a witness against himselfy Confessions


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Due Process (5th A./14th A/) A person is denied due process oflaw if aninvoluntary statement, a statement obtained as the result ofundue policepressure, is used against her at a criminal trial

1. VoluntaryRight Against Self-Incrimination (5th A.)

1. Miranda violation?Right toCounsel (6th A) this right attaches when court proceedings begin

1. Massiah issuesy Involuntary Confessions

Hopt: involuntary confessions are unreliable and untrustworthyBarm: violation of 5th A.right against self-incrimination

1. But a confession, in order to be admissible, must be free and voluntary; thatis must not be extracted y any sort of threats orviolence, norobtained byany direct or implied promises however slight, nor by the exertion of anyimproper influence

Brown: violate due process tortured the defendant to give confession forseveral days

Are inadmissible (allof the above)y Voluntary?

Totalityof circumstances approach1. Length of interrogation & denialof basic bodily functions

a. Denialof sleep (Ashcraft) or food (Payne)2. Use of force and threats of force

a. Police Brutality, Brownb.Threat ofphysicalviolence, Fulminante

3. Psychologicalpressure, Spano4. Deception

a.Threat oflongprison and children taken away, Lunumn5.Age, LevelofEducation/Intelligence, MentalCondition

a. Spano, Columbeb. But coercive police activity a necessarypredicate Connelly

FulminanteCredible threat of physical violence made confessioninvoluntary

1. Facts: in jail, undercover coppromises protection from rough treatmentin prison, ifD confessed to him.

2. Court: it was fearofphysicalviolence, absent protection from his friend thegov. agent, which motivated Fulminante to confess.

a. It does not need to be physical threat, it can be mental tooSpano psychological pressure renders confession involuntary

1. Killed boxer, D friend was in the police academy, Drefused to speakto thepolice for 5 hours, then his friend was send to the room and finallyDadmitted to the killing, they tooka drive to find the weapon with D.

2. Court: looked to the age ofpetitioner, the education (one-half years intohigh school), criminal history, emotional stability (historyof emotional


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instability), duration of interrogation (8 hours before he confessed, thequestioningwas not during normal business hours.)

y MirandaMiranda confessions

1. salient featuresa. incommunicado interrogationb. police-dominated atmospherec. resulting in self-incrimination without fullwarnings

2. Modern custodial interrogation:a. exacts a heavy tollon individualliberty and trades on the weakness

of individuals3. Before the court was focusingon the due process right interfered with

fundamental conceptions oflibertya.The 5th A is more specific and creates a bright line rule and it is not

so flexible as the voluntary statement testb. Is applies to allpeoplec.

If you have an affirmative right like the 5

th

A then a person canactuallywaive the right4. The privileges are fully applicable during a period of custodial

interrogationa.The court backed up the rights that are fundamental to a trial to the

point of interrogationb. Nowarnings are necessaryunless custodial interrogation

5. Waiver must be voluntary mere silence is not a sign ofwaiver.6. Procedure

a. Warnings:i. Right toremain silentii. Anything you say can be used against you

iii. Right to have an attorneywith you during questioningiv. Right to appointed counsel

b. Procedurei. Nowarnings unless, interrogation

ii. No interrogation unless in custodyiii. Interrogation must stop if invoke the right of counsel

Confession Analysis1. Step #1 Violation ofProtections/Procedures

a. Miranda is 5th A- basedb. Miranda creates custodial interrogation procedurec. 6th A provides right to counsel in a pending case

2. Step#2 Voluntariness test (must show that the police subjected thesuspect to coercive conduct, and the conduct was sufficient toovercome the will of the suspect [given the particular vulnerabilitiesand the conditions of the interrogation] thus inducing an involuntarystatement)

a. Due Process- based


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b. Concern: willoverborne byofficialpressurec. Totality analysis

i. Suspects peculiar characteristics and vulnerabilities age, levelof education, mental stability, state of sobriety, and familiaritywith the criminal justice process

ii. Manner in which the police conducted the interrogation length of the suspects detention, the duration and intensityof

the questioning, the use of trickery, deception, threats, orpromises ofleniency, the deprivation of access to family,friends, or nourishment

y TraditionalVoluntariness Analysis

1. Factors:a.Age, duration, Education, IQ, capacity, deprivations, threats

2. Mirandaa. Warnings, silence, counsel

Other concerns1. Videotape2. Manipulation of technology3. Fact-feeding4. Evidence to corroborate confession5. Form of confession

a.Yes/Nob. Narrativec. Drafter

6. InternalInconsistencies7. Strength of evidence of guilt

y Other AlternativesDamages suits

1. But only if criminal case resultsWitnesses to confessions (station lawyers/ombudsmen)Broaden due process standard

y Critiques:IneffectiveToo effectiveNot in text of constitution

y CongressionalReaction 18 US.C. 3501Attempted tooverrule MirandaA confession shall be admissible in evidence if it is voluntarily givenWarnings are just a factor(b) the trial judge in determining the issues ofvoutariness shall take into

consideration all the circumstances surrounding the giving the confession,including


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1. (1) timing elapsing between arrest and arraignment2. (2) whetherDknew the offense3. (3 ) whetherD was advised orknew any such statement could be used

against him4. (4) whetherD had been advised ofright to counsel; and5. (5) whether had counsel

y DickersonThe court held that Miranda is a constitutional decision of the court, and it may

not be overruled by an act ofCongress1. States may have laws that provide more protections then Miranda, but not

less or modify it

y When is person In CustodyWhether there is either a formal arrest or restraint on freedom to

movement of the degree associated with a formal arrest

Orozco: in custody when under arrest at home at 4 amOregon v. Mathiason- Merely being in a police station does not make one in

custody but whether deprived from his freedom to leave1. Facts: burglary in a house, neighbor said who she suspected, police went to

Ds house, left their business card, D called and accepted their invitation togo to the police station; told not under arrest, door closed, told truthfulnessmight be considered, lied to about incriminating evidence, confessed within5 min, questioned 30 min told not under arrest, relased

2. Court: by custodial interrogation, we mean questioning initiated by[police]after a person has been taken intoCUSTODYorotherwise DEPRIVEDofhis FREDOMof action in any significant way

a. D not in custody because he was free toleave, was told not underarrest, left after the interview.

b.Just b/c he was questioned bypolice that might be intimidating, orquestioned in the police station does not require Miranda warnings

Beckwith: taxpayer not in custody at IRS interviewon criminal tax violations1. The pressure associate with a police dominated station house interrogation

were absent when IRS in home to question

Murphy:probation not in custody at meeting with probation officerAlvaradoa person is in custody if from an objective perspective the person

is under arrest or otherwise not free to leave

1. Facts: 17 yold interrogated at station in murder case; parents brought himto the station, he was interviewed for two hours, recorded with Dsknowledge, appealed to his sense of honesty, police asked D if he wants totake a breaktwo times; the interrogation focused on his friends actions andnot his

2. Court: habious review- the DC decision was reasonable-a. Framing issue by the Circuit court:

i. Whether a reasonable 17 years old, with noprior historyofarrest orpolice interviews would perceive


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b. Court: this is not objective enoughi. Age & experience not a factor in Miranda

ii. Characteristics are a factor in voluntariness analysisiii. Custody inquiry is an objective rule designed to give clear

guidance topoliceiv. Individualized characterizes create subjective inquiry

J.D.B v. NorthCarolina1. Question presented:

a. Whether a court may consider a juveniles age in a Miranda custodyb.Analysis in evaluating the totalityof the circumstances and

determiningc. Whether a reasonable person in the juveniles position would have

feltd. He or she was not free to terminate police questioning and leave

y Traffic Stop: No Miranda WarningsBerkemer

1. Facts: followed the car, stopped, asked toleave the vehicle, Dwas not toldthat he would be taken under custody, police asked D toperform thesobriety test & asked ifD has been drinking

2. Miranda applies to all custodial interrogations, regardless ofoffensea. But persons detained during an ordinary traffic stop are not in

custody forMiranda purposesi. Brief, temporary, public

ii. Less police-dominated than interrogation at stationiii. More like a Terry stop, with questions to determine identity,

confirm/dispel suspicion

y InterrogationMiranda covers interrogationDoes not cover:

1. Volunteered statements, Miranda2. Statements towife in police presence, Mauro3. Statements toundercover agent, Perkins

Innisfunctional equivalent to questions could be sufficient to haveinterrogation

1. Facts: cap driverreported robbery, police found the suspect, arrested him,and while in the wagon the police started having a conversation with eachotherwithout involvingD, they appealed toDs emotion by mentioning thehandicap children in the area and the gun, D told them to turn around andshowed them where was the gun.

2. Interrogation = express questioningor its functional equivalent, anywordsor actions bypolice that they should know are reasonablylikely to elicitincriminatingresponse (based on suspects, not officers, perceptions)

3. No interrogation here because no express questioning & dialogue not:functional equivalent


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PerkinsMiranda warnings not required before statements to undercoveragent

1. Non police-dominated atmosphere2. Same pressures do not exists when suspect unaware ofpolice3. Strategic deception based on mislplaced trust4. D spoke based on desire to impress, at own peril

8. Fruits of Miranda unusually admittedy Illegal confession -> leads/witnesses

Exclusionaryrule does NOT APPLY (Michigan v. Tucker)y Illegal confession -> later confession

Exclusionaryrule does NOT apply (Oregon v.Elstad)1. Facts: arrest warrant, went to house, mom opened the door, Dwent with

police to the livingroom, police asked ifDknew theywere there, D said nothen they asked if he knewGorss and he said yes and admitted he was at therobbery. 1 h later at police station- given warnings

2. Later, Warned Confession admissiblea. First, unwarned confession excludedi. 1st excluded underMiranda even if voluntary, thus no

constitutional violationb. Second, warned confession at station admissible

i. Miranda warnings after voluntary but unwarned statementordinarily sufficient

ii. 2nd statement must be knowing & voluntaryiii. If 1stone coerced, did coercion taint 2nd statement?

1. Lookat the time that passes between confessions, thechange in place of interrogations, and the change inidentityof the interrogation all bearon whether thatcoercion has carried over into the second confession.

3. Court said unwarned questioning did not abridge Ds constitutionalprivilege, but departed oly from the prophylactic standards laterlaid downby the Court

a. No infringement of const.rights, not controlled byWongSunUnless police deliberately evade Miranda (Missouri v.Seibert)

1. Facts: mom and teens that burned the house to cover the bodyof the childwith cerebralpalsy, mom was arrested, interrogated for 20-30 min, after she

confessed given a cigarette and coffee break, and then given warnings andofficer stated Rice, weve been talking for a little while .. Officer madeconscious decision toused the technique : question fist, warn post-confession

a. First unwarned confession excludedb. Second warned confession also excludedc. Deliberate attempt to evade Miranda using two-step technique

rendered Miranda warnings ineffective2. Howdoes the Court distinguish Elstad?


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a. Here: one interrogation punctured byMirandab. Same location, same officer, overlapping content, use ofunwarned

confession to secure warned confession3. What is the the Seibert test for excludingwarned statements?

a. Deliberate use of 2-step techniqueb.Absent curative measures

y Illegal confession -> physical evidenceExclusionaryRule does NOT apply (Patane)

1. Facts: arrested D at his house, started Miranda, but D said he knewhisrights; officer asked about the gun that was in violation of the right toposses firearm b/c felony, D told him where the gun was.

2. Court: b/c Miranda is only a prophylactic rule that sweep beyond the actualprotection of the Self-Incrimination Clause, any further extension of theserule must be justified by its necessity for the protection of the actualrightagainst compelled self-incrimination

a. Mere violation ofMiranda does not, by itself, violate a suspectsconst.right or even the Miranda ruleb. Unlike unreasonable searches under the 4h A.or actualviolation ofthe Due process clause or the Self-Incrimination Clause, mere failuretowarn does not justify application of the fruit of the poisonous tree

9.Analysisy Are Miranda warnings required

Custodial + Interrogation = warnings requiredWere the warnings adequate

1. Must cover bases, no magic wordsy Is there a Miranda violation

Yes.Exclude the unwarned statementNo. No exclusion

y Was the statement voluntaryYes. Admit physical evidence, witnesses, statementsNo. Analyze fruits for taint & dissipation

10.Miranda Exceptionsy Impeachment

Harris v. NY1.

Prosecution can not use un

warned statements in case in chief, but can usethem to impeach D

2. When D chooses to testify, he waives his 5th A.right and is sworn to testifytruthfully

3. Limit: can not impeach if statements involuntaryy Emergency

NewYorkv.Quarles1. Facts: in custody, asked about gun without Miranda


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2. Court: Creates public safety exception: Miranda not required beforeinterrogation if questions reasonablyprompted by a public safety concernimmediate need to find weapon in supermarket

3.Admit: 1st statement, gun, and 2ndwarned statementy Booking

At booking, noMiranda warnings required before askingDOB, name, age,weight, height, eye color

Pennsylvania v.Muniz1.Asking suspect to calculate 6th birth date does not fit booking exception2. Slurred speech ofDUI suspect not testimonial physical evidence or

observation ofphysical characteristics are not testimonial

y Waiver of Miranda rightsMiranda:

1. Heavy burden on prosecution toprove2. Knowing & intelligent waiver3.A valid waiverwill not be presumed from silence afterwarnings4. Or the fact that a confession was in fact eventuallyobtained

Implied waiver, OKN.C. v. Butler1. Waiver can be clearly inferred from the actions and words of the suspect2. D agreed to talk, refused to sign waiver, neverrequested counselor

attempted to halt questions3. WhetherD in fact knowingly and voluntarilywaived the rights delineated in

the Miranda case, not a question of form ofwaivera. Mere silence is not enough, but once you have a silence plus an

understandingof his rights and a course of conduct indicatingwaiver- may indicate waiver

Waiver test: totality of circumstances1. Consider age, experience, education, intelligence, background, and conduct

of accused, Edwards

Waiver after invoking rights1. Right to Silence

a. Michigan v. Mosleyi. Robbery: arrested, warned, invoked silence, interrogation

ceased, put in celllater: warned, waived, questioned onmurder, confessed

ii. Right to cut off questioning must be honored& was hereiii. Invoked right, interrogation ceased, time passed, freshwarnings, different crime

2. Right to Counsela. Edwards

i. Facts: arrested, warned, waived, gave alibi, after Iwant anattorney before making a deal interrogation ceased. Next day:warned, waived, confessed (but not on tape)


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ii. Afterright to counsel invoked, no interrogation until counselprovided, or the accused himself initiates furthercommunication, exchanges, or conversation with the police

b. Davis:Request for counsel must be unambiguousi. If ambiguous or equivocal questioning may continued

1. requires, at a minimum, some statement that canreasonably be construed to be an expression of a desire

for the assistance of an attorneyii. Equivocal = Maybe I should talkto a lawyeriii. Followed by No, I do not want a lawyeriv. Rationale: need for bright line

c. Schatzer: After suspect invoked right to counsel, interrogationmust cease for 14 days

Berghuis1. Rejects argument that D invoked silence

a. Relies on Davis: invoking silence must be unambiguous2. Finds Implied Waiver:

a. Must be voluntary & intelligentb. Where warnings given and understood, uncoerced state ment is

sufficient to establish implied waiverc. Yes answerwere:

i. Course of conduct indicatingwaiverii. Options: say nothingunambiguously invokeiii. Not coerced

3. Dissenta. Newclear-statement rule requires speech to invoke silenceb. Flips rules:i. Miranda allows silence ot be invoked in any manner

ii. Miranda creates presumption against waiverc. Waiver:

i. Nowaiver from actions & words course of conductii. Dilutes govts burden ofproof

d. Exercised Silence: would not reach11.Identification

y Eyewitnesses are often wrongy Corss-racialIDs especially inaccuratey Id Methods

Line-up: suspect presented in groupShow-up: suspect presented on-on-onePhoto spread/Photoline up

y Concerns:UnreliableSuggestive practices increase riskofunreliabilityPowerful incriminating evidence


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y NecessaryHospital confrontation in StovallPhotoline-upusing snapshots in Simmons:

1.TotalityofCircumstances analysis2. Use cross-examination to expose possible mis-ID3. Necessary to swiftly determine if on the right track hardlyless

compelling than Stovall4. Little change of mis-ID

Documents

Outline Crim Pro