Criminal Justice NOTE: IF WE ARE A STATE COURT, WE CAN ARGUE FOR MORE STRINGENT RULES, ETC IN OUR STATE

COURTS RE: OUR STATE CONSTITUTION 1. Introduction a. Herbert Packer: The Courts, the Police, and the Rest of Use i. Competing values of the criminal justice system are crime control and due process. ii.Crime Control: 1. We should trust police more. 2. Given resources allocated, process should be quick and informal (assembly line). iii.Due Process 1. We should distrust police and prosecutors so we should make system like an obstacle course with as many safeguards as possible. 2. Facts are difficult to prove 3. False positives are way worse than false negatives. b. Louis Michael Seidman: Criminal Procedure as the Servant of Politics i. There is a believe that due process and Bill of Rights stymie law enforcement and justice, people us this to justify longer sentences because they believe to many guilty people get away; and the process if so expensive that the penalties must match the costs. c. Joseph D. Grano: Ascertaining the Truth i. Court is blocking truth through procedures, not actively looking for it. ii.Rejects notion that criminals are victims of their upbringing (society). d. Seidman v. Grano: e. Dorothy E. Roberts: Crime, Race, and Reproduction i. Criminal Justice is a form of racial discrimination. f. Akhil Reed Amar: The future of Constitutional Criminal Procedure i. Exclusionary Rule is wrong: it protects the guilty without protecting the innocent when principle should be protect the guilty only so much as is necessary to protect the innocent. g. William J. Stuntz: The Uneasy Relationship between Criminal Justice and Criminal Procedure i. Judges poorly positioned to make criminal justice policy (do not have facts of legislature). ii.Because of this prosecutors and police and enormous discretion, and they choose to prosecute who is cheapest and easiest to convict. Similarly, defense attorneys choose cheapest defenses (constitutional) as opposed to factual which require more investigation. h. Ala Dershowitz: The Best Defense i. Rules of criminal Procedure: 1. Systems knows police lie, etc. i. William J. Stuntz: Substance, Process, and the Civil-Criminal Line i. When there are bad substantive rules, it creates a need for more procedural rules to try and compensate to protect the defendants. j. Anthony Amsterdam: The Supreme Court and the Rights of Suspects in Criminal Cases i. Supreme Court does not reach decisions that respond well to real problems confronted with. Why? 1. Lacks supervisory powers of police chief and only receives appeals on evidentiary rules. 2. Many guilty pleas determine what cases Court will hear. 3. Court often lacks information and no other agency regulates this. 4. When a Supreme Court reaches a decision, it then filters down through local courts who have pro-government lean. k. William J. Brennan: State Constitution and the Protection of Individual Rights i. State Supreme Courts are interpreting their constitution to provide suspects more rights ii.Federal decision merely set the floor, more rights are always ok, but cant have fewer.

2. Due Process a. Four different views of due process discussed. P. 85. b. At the time of the founding the criminal justice system was very different (no prosecutors, no police, no prisons). c. Defined as the Bill of Rights by Harlan in dissent in Hurtado. d. Defined by Majority (Matthews) as Law. e. Also defined as accuracy. i. Race Cases: 1. Moore v. Dempsey: no trial by mobs. 2. Powell v. Alabama: No exclusion of blacks from jury 3. Norris v. Alabama: Right to counsel 4. Brown v. Mississippi: No Confession through torture. f. Also defined as fundamental fairness little more than intuition. g. Jurors v. Judges i. Jurors acquit more than judges do h. Grand Juries: i. Why dont defendants want to testify at Grand Juries? 1. Lawyers arent there to help them 2. Prosecutor gets a record 3. Rules of Evidence dont apply. ii.Difference between Grand Jury and a Trial: 1. Only hear prosecution side at grand jury 2. Standard is probable cause (not beyond a reasonable doubt). iii.Why defense attorney asks client to write down questions: 1. Wants a record of what was asked and said and doesnt get a transcript 2. Wants defense to be consistent 3. Wants to know what prosecutor is asking. iv.Uses: 1. Used by prosecutor as a sword to get evidence, force people to testify and provide evidence, and is in secret so people may not know they are being investigated. i. Hurtado v. California: US Supreme Court 1884 i. Facts: Plaintiff convicted of murder, was indicted by information not a grand jury. Appeals saying 14th amendment was violated because he was not charged by a grand jury. ii.Holding: You dont need to be charged by a Grand Jury. As long as proceeding is for public good, with principles of liberty and justice iii.Matthews Majority: Policy: Constitution is a living document made for the future and should ignore progress or improvement. 1. Due Process found in the 5th and 14th amendment, but since 14th doesnt mention Indictment by Grand Jury it must not have been intended to apply to the states. 2. Complete Incorporation Doctrine Rejected. 3. Law cannot be arbitrary: must be applied generally 4. Laws must be clear: not so unusual as to be unexpected (Lambert) and not to easy to understand/too vague. Coates v. Cincinnati (p. 87); PapaChristo (p. 87) iv.Notes: Information is: A written set of accusation made by the prosecutor. v.Dissent: That 14th doesnt mention grand jury should mean it doesnt include it, SC still holds double-jeopardy rule applies to states even though the 14th doesnt mention it. j. Palko v. Connecticut: i. Facts: Confession excluded because police lied to him, wants double jeopardy incorporated to apply to the states. Court says no, ii.Arguments: Argued for total incorporation of bill of rights into the 14th amendment.

iii.Holding: No incorporation. iv.Case-by-case (BoR amendment by amendment) approach known as selective incorporation. v.Policy: This is not the law today, as the no double-jeopardy later because applied to the states. k. Rochin v. California: i. Facts: Police force open mans mouth and pump his stomach to recover suspected drugs he swallowed. ii.Test: Shock the Conscience test of fundamental fairness iii.Holding: Uninformative Opinion, but police did violate due process. 1. Example of valuing process over accuracy in some cases. l. Duncan v. Louisiana: US Supreme Court 1968 i. Facts: Plaintiff convicted of battery. Requested trial by jury. LA only allowed for trials by jury in capital punishment or hard labor cases so they denied his request. ii.Holding: 6th amendment incorporated through14th amendment guarantees right to trial by jury. iii.Rulecases of crimes punishable by two or more years imprisonment deemed not petty and require trial by jury. 1. Now the rule is accused of a jail time of six months iv.Policy: Fundamental Fairness rationale used th 3. The 6 Amendment: Right to Counsel a. Gideon v. Wainwright: US Supreme Court 1963 i. Facts: Indigent defendant in FL requests assistance of counsel in his criminal case. This request of denied by the Judge because FL only requires counsel in capital cases. D was convicted. ii.Holding: 6th Amendment applies to states. 1. Overrules Special Exception Rule: court looks to individual circumstances of the case to determine if he has a right to counsel. iii.Rationale: Justice Black wrote majority 1. State uses prosecutors to represent itself. 2. Anyone who has the money to hire a lawyer does. iv.Consequences of Holding: 1. Raises the costs of trial on the state and incentivizes plea deals 2. Public Defenders interests arent always in line with his clients. (more plea deals and guilty pleas) v.How do lawyers help defendants? 1. Investigate skills 2. Decide what evidence to put on and what to exclude 3. More false negatives (guilty go free); but less false positives (innocent convicted) b. Johnson v. Zerbst: US Supreme Court 1938 i. Holding: Counsel has to be appointed for indigents in federal criminal cases. c. Argersinger v. Hamlin: US Supreme Court 1972: i. Facts: Indigent defendant charged with a misdemeanor punishable by up to 6 months in jail and a fine. He requested the assistance of counsel but it was denied by the trial judge. He was convicted. ii.Holding: 6th Amendment applies to misdemeanors if D actually (not potentially) will be jailed. iii.Rationale: Avoid the assembly line justice. 1. Misdemeanors may implicate issues more complex than some felonies iv.Concurrence: Wanted case-by-case determination of whether right to counsel applied 1. Some misdemeanors are simple. 2. Very concerned about implementation and costs burdening state budgets 3. Worried about overburdening state courts, increasing litigation congestion, and exacerbating delays. v.Consequences:

1. Judge must determine whether he thinks he might want to impose jail time on a defendant before the trial in determining whether to appoint counsel for the defendant. d. Scott v. Illinois: US Supreme Court 1979: i. Facts: indigent defendant charged with misdemeanor punishable by up to 1 year in prison and fine. Convicted and just fined. ii.Holding: 6th Amendment does not extend to all cases with the mere possibility of jail. iii.Brennan Dissent: prefers actual imprisonment test 1. Rationale: a. Better recognizes social stigma associated with the crime b. Cost management is too speculative c. Forces judges to determine punishment before trial. d. More respectful of legislative judgments e. Matthews v. Eldridge 4. Right to Counsel on Appeal a. Griffin v. Illinois: US 1956 i. Holding: SC struck down IL statute denying free transcripts to indigent defendants necessary for them to get an appeal. ii.Rule: State cannot deny access to an important process on the basis of wealth. 1. Equal Protection Clause Rationale. b. Douglas v. California: US 1963 i. Holding: 14th Amendment requires a state to provide counsel for an indigent defendant on his first statutory appeal. ii.Rationale: Uses the principles of the Equal Protection Clause iii.Also Due Process Clause: Need to analyze importance of each procedure. 1. This decision appears to fall under Equal Protection because states do not need to permit appeals, so there is no due process right that is being violated by not granting counsel at an extra procedure. c. Ross v. Moffitt: US 1974 i. Holding: 14th Amendment does not require the appointment of counsel to assist indigent appellants in discretionary state appeals and in applications for review in the Supreme Court. ii.Rationale: 1. Due Process Clause: Appeals are not always permitted by states. Thus, Due Process only requires that individuals not be singled out and denied meaningful access because of their poverty. 2. Equal Protection Clause: Only requires that the indigent has an adequate opportunity to present his claims fairly in the context of the appellate process, does not require absolute equality between the rich and the poor. 3. Appellant and Appellate Court already have access to a lot of documents, and these would provide the Court an adequate basis for its decision to grant review. 4. Purpose of discretionary review: not to determine merit of convictions, rather to look for cases of public interest. 5. Effective Assistance of Counsel a. Paul Wice: Chaos in the Courthouse: The Inner Workings of the Urban Criminal Courts i. Problems of Criminal Justice System 1. Inadequate Staffing 2. Backlog of Cases (Both of these lead to plea bargains) ii.Frustrations of Indigent Defendant upon being assigned a public defender 1. No choice of attorney 2. Assembly-line feel of seeing various lawyers iii.Public Defenders are not worse than private ones on the whole and have some advantages:

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1. Own law libraries 2. Good relationships with prosecutor and judges 3. Criminal experts Whatss Wrong with Plea Bargains? i. Incentivizes overcharging by the prosecutor ii.Incentivizes innocent defendants to plead guilty to avoid even longer punishments for conviction iii.Prosecutors offer plea deals (more generous) even as their case is falling apart iv.Defendants are able to plea to something other than what they did v.Participants not happy: Defendant feels lawyer has betrayed him; victims feel defendants got off too lightly. Bruce Jackson: Law and Disorder i. Public Defenders assume their clients are guilty and see their job as minimizing jail time. Their strong relationships with prosecutors and judges might compromise their representation of their client. What is wrong with assuming your client is guilty i. If you dont believe your client is innocent, you might not work as hard ii.You might induce him to plea more readily Abraham Blumberg: The Practice of Law as Confidence Game: Organizational Co-Optation of A Profession i. Indictment of Defense attorneys charging collusion with judges and prosecutors ii.Notes tension between defense lawyer and defendant iii.Thinks of defense lawyer as member of the prosecutors office. Critical Stages of the Proceeding i. Coleman v. Alabama (1970): Right to Counsel applies at every critical stage of a criminal prosecution. ii.Critical Stage: formal interaction between the defendant and the state that could adversely affect the defendants ability effectively to exercise a legal right. 1. I.e., Preliminary hearings, initial appearances, arraignments, informal meetings between the defendant and a representative of the state that is designed to elicit incriminating information from the Defendant. 2. Does not include: ex parte proceedings that will not adversely affect a defendants legal rights (i.e. warrant procedures). Background cases i. Geders v. United States: US 1976: An attorney may not be prohibited from conferring with the client during an overnight recess that falls between direct examination and cross-examination. ii.Ferguson v. Georgia: US 1961: state may not prohibit the attorney from eliciting the clients testimony on direct examination. iii.Perry v. Leeke: US 1989: Court held that the trial court did not err by ordering the Defendant not to consult with his lawyer during a 15 minute recess that followed immediately his direct examination and preceded his cross-examination. iv.Herring v. New York: US Attorney must be allowed to giving closing summation in nonjury trial. v.Brooks v. Tennessee: State may not restrict attorneys choice of when to put the defendant on the stand Trial courts used to employ a mockery of justice standard to test claims of ineffectiveness. Strickland v. Washington: US 1984 i. Facts: Defendant arrested for murder. He went against the advice of his counsel and confessed and waived certain rights. Because of this counsel did not act as diligently as possible and did not fully investigate the circumstances. Bu the he make a closing argument and suppress a rap sheet. Defendant is claiming ineffective assistance of counsel. ii.Holding: Counsel was reasonable

iii.Rule: 2 prong test to show ineffectiveness of counsel: 1. Counsels performance was deficient: fell below an objective standard of reasonableness a. Below an objective standard of reasonableness: reasonably effective assistance. 2. The deficient performance prejudiced the defense. a. Counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. i. The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors the result of the proceeding would have been different. iv.Marshall Dissent: reasonableness standard is too vague. Advocated for a checklist. 1. Too hard to tell in retrospect if attorney was reasonable. 2. Purpose of 6th amendment is more than avoid false negatives, it is fundamental fairness v.Policy: test was to make sure trial was fair, not improve procedures. vi.Problems: Majority says the burden should be on the defense to show prejudice as the second prong. 1. Marshall says it should be on the prosecution. vii.Categories where Strickland Prejudice Standard is presumed: 1. Actual or constructive denial of counsel (Gideon) 2. Certain kinds of interferences with Council (Geders) 3. Some situations involving conflicts of interest (p. 196) 4. US v. Cronic: Where counsel failed to function in any meaningful sense as the governments adversary. 5. Counsel entirely fails to subject the prosecutions case to meaningful adversarial testing. (in Bell v. Clone). a. Calling no defense witnesses, not giving a closing argument are not sufficient to show counsel entirely fails to subject prosecutions case to meaningful adversarial testing. Failure MUST BE COMPLETE. (not only to parts of the case). (Bell). 6. Where counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Powell v. Alabama; Cronic. j. Nix v. Whiteside: i. Facts: Whiteside charged with murder, but then tells his attorney that he must lie or else he is a dead man. The attorney threatened the defendant that if he lied, he would tell the court he was lying and withdraw as his representation. The Supreme Court held 5-4 that this was acceptable. ii.Holding: The attorney acted within the range of professional conduct under Strickland. iii.Importance: A defendants right to effective representation is not violated when an attorney refuses to cooperate with a defendants desire to testify at trial. 1. No right to commit perjury. iv.Things an attorney can do if he thinks client is going to lie 1. Persuade D not to testify falsely 2. Dont call D as a witness 3. If he insists on testifying, act like he is telling the truth or let him testify in a free narrative 4. Disclose to trial judge Ds intention to commit perjury 5. Tell prosecutor to call him as a witness 6. Multiple Representation a. Benefits: i. Means of insuring against reciprocal incrimination. 1. A common defense often gives strength to a common attack. b. Glasser v. United States: 1942: i. Facts: After one defendant fired his attorney, the judge forced an attorney representing a codefendant to represent him over objections of a conflict of interest. The attorney failed to cross-

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examine a witness and object to the admission of evidence because he was trying to protect his other client. ii.Rule: The assistance of counsel required under the 6th amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer should simultaneously represent conflicting interests. iii.Court did not look into whether there was prejudice and reversed. Holloway v. Arkansas: 1978 i. Facts: Attorney forced to represent three co-defendants. Makes a pre-trial motion for the appointment of separate counsel which is denied. His clients want to testify, but he would not be able to cross-examine them because of the confidential information he has received. ii.Rule: When an attorney representing co-defendants makes a pre-trial motion for the appointment of separate counsel, based on his assertion of a potential conflict of interest, a trial judge is required either to grant the motion or to take adequate steps to ascertain whether the risk is too remote to warrant separate counsel. iii.If judge fails to do this, reversal is automatic. 1. Verdict is unreliable iv.Policy: Because of the confidential information attorneys receive that judges dont, they are in a better position than the court to know when a potential conflict of interest might emerge. Cuyler v. Sullivan: 1980 i. Facts: 2 attorneys represent three co-defendants. At the trial of the first they do not put the other co-defendants on the stand to avoid exposing them for their upcoming trials. They do not make a motion for the appointment of separate counsel. ii.Rule: 6th amendment does not require a trial court to inquire into the possibility of a conflict of interest without a motion or he should reasonably know from counsel. 1. Policy: Attorneys better positioned. iii.A defendant who didnt raise an objection at trial can still establish a violation of the 6th amendment by showing: 1. He suffered from an actual conflict of interest; and 2. That the conflict adversely affected his lawyers performance. a. This test is more strenuous than the automatic reversal of Holloway, but less so than the reasonable probability test of Strickland. iv.Trial Court must inquire into whether there is a conflict of interest when special circumstances exist. (trial judge knew or should have known) Direct Evidence: If accurate, it proves the point for which it was offered Circumstantial Evidence: Different explanations for the evidence. Mickens v. Taylor: 2002: (what happens under special circumstances when the judge doesnt investigate?) i. Rule: Sullivan (test for a defendant who didnt object) refers to an attorney who actively represents conflicting interests (past clients and conflicts of interest dont count). ii.Mickens and Cuyler concerned with the performance of the attorney and not the result (Strickland). Rule 44 (c): The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendants right to counsel. Tague Criticisms of Rule 44: i. Inquiry made too late in the process. 1. Many times plea deals are made before this and thus bury evidence of conflicts. ii.The rule does not appear to apply to multiple cases, even if the judge knows of them. iii.Rule does not provide guidelines for review of a post-conviction attack based on conflict.

1. The initial inquiry might not reveal a conflict that arises later, so reversal on conflict grounds is still possible. j. General view is that defendants CAN waive their right to conflict free assistance. 7. Representing Oneself a. The 6th Amendment implicitly allows D to waive the right to counsel. b. Why would a defendant want to represent himself? i. Unhappy experience with prior representation. ii.Difference of opinion on trial strategy. iii.Able to say things the lawyer cant say. iv.Able to make positive impression on the jury without testifying c. What are the problems? i. D may not know rules of evidence or when to object ii.some aspect of Ds personality may upset the jury iii.may accidently reveal info iv.higher probability of conviction v.leads to more appeals vi.disrupts proceedings vii.judge may protect D d. Why do we let them represent themselves? i. Autonomy ii.Dignity iii.Privacy e. Faretta v. California: 1975: i. Facts: Defendant was charged with grand theft and wanted to represent himself. The judge initially allowed it, but then later held a hearing wherein he questioned the defendant on matters of law and reversed his prior decision. The Defendant was convicted. ii.Rule: Forcing a lawyer on an unwilling defendant is contrary to his basic right to defend himself. 1. Defendant must voluntarily and knowingly waive his right to counsel. iii.Policy: Defendant is the one with rights, not counsel 1. Defendant is the master, not counsel 2. He bears the risks 3. While law of averages favors counsel, this is a decision about an instance, and in some instances defendants might to better than counsel. iv.Dissent: representation by counsel is essential to ensure a fair trial. f. McKaskle v. Wiggins: 1984 i. Rule: In allowing defendant to represent himself, you can still appoint a lawyer to assist defendant who can also take over the case if D cannot defend himself or wants attorney representation at some point. th 8. The 6 Amendment Applied: Lineups, Showups, and Photographic Arrays a. United States v. Wade (decided before Coleman): 1967: i. Facts: Defendant identified in postindictment lineup held in the absence of counsel. ii.Rule: A person is entitled to the guiding hand of counsel at all critical stages of a criminal proceeding. iii.Critical Proceeding: any stage of the prosecution, formal or informal, in court or out, where counsels absence might derogate from the accuseds right to a fair trial. iv.If counsel should have attended the lineup, but did not, the eyewitness cannot testify that a pretrial ID was made, but can still make in-court ID v.Policy: inherent unreliability of eyewitness identifications 1. Hard for defense counsel to reconstruct procedure at trial to demonstrate why the identification should be discounted 2. Defendant unlikely to be alert enough to relay material information to counsel.

3. Presence of counsel itself can avert prejudice and assure a meaningful confrontation at trial. 4. Prosecutors can make subconscious suggestions to the identifier 5. Once making an identification, people tend to harden in it. vi.White Dissent: this will hamper law enforcement 1. Improper police procedures not so widespread that a broad rule must be laid down.
vii.Coleman- defines critical stages generally viii.Wade- after criminal proceedings start, lineup counts as critical stage, therefore right to counsel ix.Kirby- before criminal proceedings start, no right to counsel at lineup, can't be a critical stage of the proceedings because the proceedings haven't started yet, takes away practical effect of Wade because most lineups happen before criminal proceedings start

b. Gilbert v. California: 1967: i. Rule: Per se exclusionary rule (cant say he identified defendant at earlier proceeding) was

applicable to out-of-court identifications made in violation of the suspects right to counsel.

c. Stovall v. Denno: 1967: i. Rule: Wade was to be applied only to lineups or showups occurring after the decision in Wade but

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that prior lineups could be tested under a Due Process standard. ii.Showups suspect is brought to witness and is the only person presented. More likely to be deemed unconstitutional violation of Due Process, b/c more suggestive and makes the possibility of misidentification greater. Less reliable than a lineup, so should only be used in exigent circumstances (witness was on her death bed) Kirby v. Illinois: 1972: i. Rule: 6th Amendment right to counsel does not apply to police conduct that occurs prior to the initiation of formal judicial proceedings. Criminal prosecution hadnt started because there hadnt been an adversary judicial proceeding ii.Rule: This limits Wade significantly as almost all lineups occur before formal charges are brought. 1. Two Questions: a. Has the govt committed itself to prosecute? b. Is the defendant faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. iii.Textual Argument in support of Kirby: applies to accused: a term suggesting formal charges have been brought in all criminal prosecutions. Moore v. Illinois: 1977: i. Rule: Identification at preliminary hearing at which defendant was unaccompanied by counsel was inadmissible because it was clearly the beginning of adversary judicial criminal proceedings against him. Role of Counsel in the identification process i. Lower courts have generally agreed that atty should play a passive role, and should not make the lineup into an adversarial proceeding. How to Increase Reliability of Eyewitness ID i. ban pre-trial IDs ii.photo or videotape pre-trial proceedings iii.keep photos used at photographic lineup iv.have a blank lineup where suspect is not participating to see if witness will ID erroneously v.exclude D from trial during ID process and put him amongst spectators to see if witness will ID him United States v. Ash: 1973: i. Facts: A criminal defendant objected to the government's use of a photographic lineup without the presence of attorney. 33 months after the robbery occurred the prosecutor showed several

photographs to the eyewitnesses again with Ash and Bailey in it. During the second time three of the four choose Ash's photography but no one choose Bailey. ii.Holding: A person against whom adversary proceedings have been initiated is not entitled to assistance of counsel when the police display one or more photographs, including one of the accused, to an eyewitness to see if he can identify the culprit. iii.Policy: This is not a critical stage of the proceeding. 1. Since defendant is not present, he cannot be taken advantage of by the prosecutor. 2. Because of the tangible nature of the photographs a defense attorney can reconstruct the id process at trial. iv.Dissent: (Brennan): Many of the problems recognized by the court are inherent in photographic identifications too. 1. Photos are even less reliable because they are only two dimensional. i. Possible methods of suggestion in photographic identification procedures: i. Fotos themselves might suggest which pic is subject. ii.Suggestion through display methods. iii.Prosecutors gestures or comments might suggest iv.Defense cannot reconstruct photo id session. v.Accused himself not present at photo id to decrease chances of suggestions, etc. j. Jonkakit: Reliable Identification i. Looking at mugshots and lineups are often suggestive because of unconscious transference. A face seen in one situation is remembered in another. So when a victim looks at mugshots days after the crime and subconsciously remembers them and then when confront withed a lineup of the individual she unconsciously transfers his image to her memory. ii.You can protect against this by: 1. Require police to keep accurate records of which mugshots are shown to police 2. Use control people. k. Identification Procedures: Due Process of Law i. Due process clause requires the exclusion at trial of evidence of a pretrial identification of the defendant if, based on the totality of the circumstances, the procedure was: 1. Unnecessarily suggestive; and a. i.e. in Stovall suspect only one presented to dying defendant at hospital handcuffed to 5 officers (this was NOT a violation because it was IMPERATIVE). 2. Conducive to mistaken identification (Stovall). ii.Simmons v. United States: 1968 a conviction will be set aside only if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. 1. Does this test still apply? Is the standard now reliability (See Manson) 2. If the court rules the out-of-court identification offends Due Process, it is excluded from the trial. An in-court identification is then allowed only if the out-of-court procedure did not create a very substantial likelihood of irreparable misidentification. This is rare for the courts to find, so both the pretrial and in-court identifications are generally allowed in at trial. iii.Neil v. Biggers: 1972: In-court identifications are to be governed by Simmons and admissibility turns on reliability. 1. Factors in determining reliability: a. The opportunity of the witness to view the criminal at the time of the crime b. The witness degree of attention c. The accuracy of the witness prior description of the criminal d. The level of certainty demonstrated by the witness at the confrontation e. The length of time between the crime and the confrontation

iv.Manson v. Brathwaite: 1977 1. Rule: Even if an identification procedure is unnecessarily suggestive, due process is not

necessarily violated. RELIABILITY is the linchpin in determining the admissibility of identification testimony. 2. Look at reliability factors in Biggers, totality of the circumstances. a. (in this case, only showed one photo) 3. Test of Reliability: The likelihood that a misidentification has occurred as the result of the unnecessarily suggestive process. l. Even when they are likely to lose, Defense attorneys should try to get pre-trial hearings on the admissibility of prior identifications: why? i. Troll for information to use at trial ii.Less discovery in criminal proceedings than civil iii.Learn how to best treat the witness: attacking (see how shell react) or empathy (get more info through building confidence) th 9. The 4 Amendment The Rise and Fall of Boyd a. Boyd v. United States: 1886: i. Facts: Plaintiffs are importers and were trying to import 35 cases of plate glass. There was a statute saying that if they tried to defraud the payment of the import, their merchandise would be confiscated, and they would be fined. Their goods were seized by the US. Plaintiff files a claim for the goods. In the trial the value of the goods became an issue. The district judge made plaintiffs produce an invoice. The plaintiffs challenge the constitutionality of the law that would make a claimant produce evidence to be used against itself. ii.Holding: 4th and 5th amendments should be broadly construed, government cannot force claimants/defendants to turn over their books/papers in an effort to get them to incriminate themselves. (marriage of 4th and 5th Amendments). 1. Compulsory production of personal papers is compelling the owner to be a witness against himself and is a violation of the 4th amendment as an unreasonable search and seizure; but papers required by law to be kept are seizable because government has a property interest in the,. iii.Policy: Property rights interpretation of the 4th Amendment. This was a trespass against private property. 1. Cites Entick v. Carrington: every invasion of private property, be it ever so minute, is a trespass. 2. Looks at historical roots of 4th Amendment: odious [British] practice of issuing general warrants was fresh in the memories of the drafters of the 4th amendment. 3. great end for which men entered into society was to secure their property. (Locke/Hobbes) iv.Significance: Upon Boyd, SC built exclusionary rule and incorporated right/remedy into 5th amend v.Miller Concurrence: 1. This violates the 5th amendment as it is essentially a subpoena duces tecum, but does not violate the 4th. b. Gouled v. United States: 1921 i. Holding: Searches pursuant to warrants for the primary purpose of gathering evidence to be used against a suspect in a criminal proceeding are a violation of the 4th amendment. It is only justified when the primary right to such search and seizure may be found in the public interest or complainant might have for the property to be seized. (Property view). ii.Mere Evidence Rule: Items that have only evidentiary value in the apprehension or conviction of a person for an offense could not be seized. 1. Allowed: contraband, instrumentalities, and fruits.

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iii.Significance: Might have expanded Boyd: No special Significance in Papers. Aftermath of Boyd: i. Government can only obtain the following things: 1. Instrumentalities 2. Fruits 3. Contraband ii.Problems with Boyd: 1. Made criminal investigation difficult 2. Limited to federal officials (did not apply to state actors) iii.Beginning of the Death of Boyd: 1. Sanctity of property view dies down as government increased control over ownership, use, and disposition. 2. Fundamental right to privacy view was gaining acceptance making this doctrine less essential. 3. Thus, strict adherence to Boyd was only made when it would not interfere with governmental regulation of economic activity. 4. Hale v. Henkel Boyd does not apply to corporations. 5. Shapiro v. US State has right to compel production of all documents people are legally required to keep. a. Legislature can acquire any and all information it wants from an individual. 6. Marron v. US allowed seizure of any instrumentality of a crime, even papers. iv.Views of Boyd: 1. Traditional: Boyd as protection of property: Question: was the evidence owned by the defendant? 2. Revisionist: Boyd as protection of privacy- right to be left alone. Olmstead v. United States: 1928 i. Facts: warrantless wiretapping by government agents. ii.Holding: because they are not tangible, conversations are not persons, house, papers, or effects do they are unprotected by the 4th Amendment. Eyes and ears cannot search or seize as neither can trespass. iii.Trespass Doctrine: Physical penetration is a search. Since this was not tangible, there was no search. iv.Brandeis Dissent: 4th Amendment meant a right to privacy not just a right to be free from trespass. Silverman v. Untied States: 1961 i. Holding: Search occurred when spiked-microphone inserted into a wall and intruded minutely into the speakers side of the wall. ii.Court did not base justification on the trespass doctrine. End of Trespass Doctrine. Schmerber v. United States: 1966: i. Facts: Petitioner is drunk and driving. He gets into an accident and injures himself. While at the hospital, over the refusal of the petitioner, an officer instructs a physician to take a blood sample. This reveals he is drunk and they charge him. ii.Holding: 5th Amendment only protects testimony or evidence relating to a communicative act. 1. 4th Amendment: 2 part test: a. Were the police justified in requiring the petitioner to submit to the blood test? (yes, because this was an emergency as alcohol in blood quickly dissipates) b. Were the means and procedures employed in taking his blood respected relevant to the 4th amendment standards of reasonableness? (yes, performed by a doctor in a hospital) 2. Since no right to 5th, no right to 6th (just a sentence)

iii.Dissents: 1. Black & Douglas Dissent: Cannot agree with distinction between testimony and a communicative act and this test. This test was to elicit testimony from some person that petitioner was drunk. It was communicative because it was going to allow a witness to communicate that the petitioner was drunk. 2. Warren and Fortas due process 14th amendment a. No right to extract blood violence upon the person, or to use the results of such a tort. 3. Evidence taken is tantamount to testimony. iv.Significant: 1. Mere Evidence Rule: Compulsion which makes a suspect the source of real or physical evidence (mere evidence) does NOT violate the privilege against self-incrimination. g. Warden, Maryland Penitentiary v. Hayden: 1967 i. Facts: The defendant was convicted of armed robbery after his clothes were seized during a search of his home and admitted into evidence without objection at his trial and used to convict him. ii.Holding: End of mere evidence rule. 1. That an object has evidentiary value only (mere evidence as opposed to fruits, contraband, illegal goods, or instrumentalities) does not render its seizure unconstitutional. Search was valid bc there were exigent circumstances (hot pursuit) iii.Policy: 1. The old distinction is reversed. It is not found in the text. Privacy is equally disturbed regardless of the use to which the things are applied. 2. The old distinction created too much confusion and was arbitrary 3. Property ideas of Boyd are gone. iv.Concurrence: Fortas & Chief Justice 1. No reason to overturn the mere evidentiary rule. The evidence used to have to be strictly tied to the exigencies of the search. (i.e. gun seized in hot pursuit ok, or fruits ok for return to rightful owner. 2. This case should have been decided within the old framework under the hot pursuit exception. v.Douglas Dissent: Reinterprets Boyd to create zones of privacy 1. One creates a zone of privacy that may not be invaded by police through raids, legislators through laws, or magistrates trough warrants. 2. Second creates a zone of privacy that may be invaded either by police in hot pursuit or SIA, by a magistrate through a warrant for probable cause, etc. h. Fisher v. United States: 1976: i. Facts: Tax cheats gave their sole proprietorships' tax records to their attorneys for review. When the IRS subpoenaed the lawyers to produce the records, they refused asserting 5th Amend protection against self-incrimination. ii.Holding: Compelled production of business papers. 5th Amend privilege only appropriate when the act of producing the docs would self-incriminate D (authentication). Cannot be compelled to create a document, but can be compelled to produce a doc, as long as the act of producing does not serve as authentication of doc by D. 1. If evidence is obtainable from the accused (not protected by 5th amend), it continues to be obtainable even after being transferred to a lawyer. Self incrimination protection is only available to the accused, so if he tells info to 3rd party, that party cant invoke the 5th amendment. iii.Policy: 5th amendment is not the protector of privacy; rather it is the 4th iv.Act of producing them is not communicative enough to warrant 5th Amendment protection: you reveal: These three things greatly help the prosecutor in authenticating the evidence for use at trial.

1. Their existence 2. Your possession 3. That you believe them to be what they are requesting v.If government cant authenticate documents without act of production, they can grant immunity for the act of production. vi.The papers were obtainable from the accused b/c their existence and location were foregone conclusions which were not incriminating, and producing the papers would not have the effect of authenticating them. (because they are business papers) vii. He was not compelled to create these papers, simply to produce them. viii.He could not authenticate b/c he did not create them (accountant did), so his production would not lend credence to the evidentiary value of the papers. ix.Compulsion to create them would have been = to compulsion to testify, but thats not the case here. If evidence is obtainable from the accused, it continues to be obtainable even after being transferred to a lawyer. (Leaves open issue of whether personal papers are afforded special protection but addressed in Andresen) x.Contents arent protected, but govt must authenticate (must link docs to controversy and to D) to eliminate evidentiary significance of production of docs to subpoena the govt grants him immunity in production of the docs. The fact that he produces the docs cant be used against him. xi.Brennan Concurrence: Corporate and private papers are different, have to look to the private nature of the papers i. Attempt to quash a Subpoena: i. Odds of success are low: so why do it? 1. Slows government down and creates costs for the government 2. Learn more about government motives 3. Might be able to negotiate with prosecution to limit the scope of the subpoena j. Immunity: 2 types: i. Transactional Immunity 1. Cannot be prosecuted for any crime you revealed while testifying about another crime (You are on trial for murder and admit to robbing the person as well. They have to prosecute you for the robbery separately).immune for prosecution for any crime that mention which is germane to the grant of immunity. (no immunity unless some how it is linked to the original crime) ii.Use Plus Derivative Use Immunity 1. Government can overcome the 5th amendment if it provides protection which is coterminous with (the same as) the 5th amendment protection. 2. Government cannot use my testimony against me, but it can prosecute me for the crimes I discuss. iii.If you compel testimony to find evidence. the murder weapon is there. You cant use the statement (testimonial) and you cant use the murder weapon: derivative use. iv.WHATS UP v.Transactional immunity cant be prosecuted for exchanging information vi.Use plus derivative use cant use my testimony against me, cant 1. k. Andresen v. Maryland: 1976: i. Facts: Defendant convicted of fraud. With a search warrant, state seized evidence. Court used evidence seized from him, including hand written notes, personal business papers, etc. Police complied with process required by 4th amendment. ii.Holding: The search and seizure of personal papers including handwritten notes does not violate the 5th amendment. iii.Rationale:

1. He was not asked to do or say anything: 5th Amendment designed to protect against the

government forcing the lips of the accused. 2. He voluntarily committed the evidence to writing himself. 3. Because this was a seizure and not a subpoena, the acquisition of the documents does not aid the prosecution in authentication. a. The defendant in a search is not subject to the trilemma of perjury, selfincrimination, or contempt. iv.Brennan Dissent: These documents only contained personal information. l. United States v. Hubbell: 2000: i. Facts: The second prosecution is an attempt to figure out if he kept that promise. While in jail, he was served with a subpoena calling for documents. He asserted his 5th amendment rights and refused to produce the documents. Then the prosecutor produced a 18 U.S.C. 6003 order directing him to respond to the subpoena and granting him immunity to the extent allowed by law. He then produced the documents. ii.Holding: 5th Amendment applied to a compelled production of documents when there is a testimonial aspect to them. 1. Even though the government didnt need to rely on the production for authentication at trial, it still used the documents to learn more about the crime. 2. In Fisher, Government knew about documents and could confirm their existence and authenticity, here no. 3. The respondents motion to dismiss the indictment on immunity grounds must be granted unless the government proves that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources wholly independent of the testimonial aspect of respondents immunized conduct in assembling and producing the documents described in the subpoena. 4. Subpoenas need reasonable particularity to show that it is a foregone conclusion that the documents exist (like in Fisher) iii.Rehnquist Dissent: manna from heaven. State should be able to get this and use it, but police must be able to authenticate it entirely separately. iv.Thomas Scalia Concurrence: 1. Thinks Fisher wrongly decided and Court should be more in line with Boyd and not restricted to the testimonial aspects of the case. 2. Embrace Justice Blacks view in Schmerber: Evidence taken is tantamount to testimony. m. Confession v. Admission: i. Confession: I am guilty of a crime ii.Admission: Conceding a fact (I know where the murder weapon is). Provides circumstantial evidence of guilt. n. Themes: Krauss: i. Warren Court chose Due Process Model (Schmerber & Warden) ii.Burger Court chose Crime Control Model (Fisher & Andresen) th 10. The 4 Amendment Exclusionary Rule a. Provides that evidence obtained in violation of ds constitutional rights will be excluded from trial. b. Rationale = deterrence (if police know evidence seized wont be admissible, they are less likely to conduct illegal S&S. Remedy that discourages police from violating a persons 4th, 5th, or 6th Amend rights i. Deterrence 1. Two theories a. Actually deters; or b. Police count on the fact that the rule is rarely applied and doesnt affect searches and seizures that dont result in prosecutions.

c. Exclusionary Rule is better than the alternatives. i. If cops were paid by arrest they would arrest more, this would be bad ii.If they were penalized for illegal searches, they would search less iii.If there was liability, government would remove officers from areas with greater liability abandoning the areas most in need. 1. Why not tort action? Cause then the taxpayers have to pay. d. History of 4th Amendment: i. Fourth amendment plays two great roles. 1. First is as the chief source of privacy protection. a. All invasions on the part of the government and its employees into the sanctity of a mans home and the privacies of life. b. But it was limited to the federal government only which was small, until Mapp v. ohio which gave the amendment its teeth. 2. Second is the actors being regulated: applies to all government actors but is almost always enforced against police officers. ii.Source of 4th amendment 1. Entick v. Carrington: UK case where house of pamphleteer was searched under a warrant that seized his books and papers, he sued for trespass and won 2. Wilkes v. Wood: UK case where house of pamphleteer was searches under a warrant that neither named the suspects nor specified places to be searched. He also sued for trespass and won. 3. Writs of assistance case: MA case against searches of any place where smuggled goods might be concealed. Argued they lacked legal authority and lost. But Adams cites them as beginning of the revolution. iii.Silver Platter Doctrine: FBI evidence cannot be used in state prosecutions (FBI evidence would have been excluded, so they cant get around that by giving it to the states. 1. Now overturned because everyone uses the exclusionary rule. iv.Mapp v. Ohio: 1961 1. Facts: officers receive a tip that defendant had policy paraphernalia in her home. When the officers knock, she denies them entry without a search warrant. Officers then kick in the door, produce a fake warrant, handcuff the defendant, deny the admittance of her attorney and search everything and uncover the photos. 2. Holding: 4th Amendment exclusionary rule applies in state criminal trials, just as it does in the federal system under Weeks. a. Overturns Wolf v. Colorado which held that the states could make up their own minds of whether or not to adopt the exclusionary rule. 3. Problems: a. Tough justify through the text of the 4th amendment which does not apply this remedy. b. Doesnt apply to illegal searches that do not result in a trial. 4. Significance: a. If police dont search because of this, we never know what they may have found, but if they do search and they find evidence and it is excluded, then its harder to take. So its easy to see the costs and not see the value. b. Exclusionary Rule: has supposed effect of returning everything to the position they were in before the police intruded. But we are denying valuable information to the jury. But this isnt the end of the prosecutions case in most circumstances as they can put on other evidence.

c. Exclusionary rule might incentive plea bargains because parties and police are unsure whether motion to suppress will win. So this means police should intrude because they are likely to get a plea. 5. Policy: Balancing test between law enforcement and protection of citizens and intrusions into peoples privacy. 6. Black Concurrence: 4th amendment alone doesnt justify the Exclusionary rule, must consider it with the 5th amendment. e. Cardozo critique: i. Too lax: only a remedy to those charged with a crime, rule applies only to official state actors ii.Too strict: what if there is a negligent violation (2 year investigation wasted for procedural fuck up) f. Akil Amar: The Future of Constitutional Criminal Procedure i. Exclusionary rule gives windfalls to the guilty (suppression of evidence) but nothing to the innocent person they are just harassing. ii.The constitution protects the innocent and the guilty only so far as is necessary to protect the innocent. iii.Truth and Accuracy are the values of the bill of rights. We should not throw out reliable evidence. iv.Textalist Argument that the 4th Amendment doesnt support the exclusionary rule. 11. 4th Amendment Searches and Seizures a. 4th amend: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. b. What does the 4th Amend require? (2 elements): i. Reasonableness ii.Warrant 1. Issued by . . . Neutral and Detached Magistrate 2. upon showing of . . . Probable Cause 3. supported by . . . Oath or Affirmation (i.e. affidavit) 4. Particularity c. How Justified? i. Police must have justification BEFORE the search or seizure. A successful search does not justify the search after the fact. (Draper) d. Katz v. United States: 1969 i. Facts: Katz arrested for gambling conversations he had with people from a phone booth. The feds put a listening device on the outside of the public phone booth and used this evidence to convict the defendant. ii.Holding: Illegal search and seizure. iii.Rationale: Katz had a reasonable expectation of privacy (from listeners) when he entered the telephone booth and closed the door (even though he was still visible to the public). 4th Amend protects people not places. What a person knowingly exposes to the public, even in his own home is not protected by 4th Amend, but what he seeks to preserve as private, even in a public area, may be. Conversations made in public can be seized (they are material objects). 1. He sought to protect not against the eye, but against the uninvited ear. iv.Significance: Overruled physical penetration or trespass doctrine. 1. Searches without warrants are per se unreasonable. th v.4 Applies to people not places. 1. Comes with good and bad, might lead to standing vi.Harlan Concurrence: 2 prong test: 1. Reasonable expectation of Privacy Test:

a. Subjective Prong: Individual must have exhibited an actual (subjective)

expectation of privacy.
b. Objective Prong: He must also prove that the expectation he exhibited is one that

e.
f.

g.

h.

i.

j.

k.

society is prepared to recognize as reasonable, legitimate, justifiable, etc. 2. Factors to consider: vii.Factors: 1. Locations uses 2. Societal understanding that certain areas deserve more protection. Problems with Katz i. Government can get rid of subjective expectation of privacy (just tell everyone no privacy) Hoffa v. United States: 1967 i. Holding: Court allowed evidence from informant who gained the confidence of the suspect and elicited statements from him because it involved only a wrongdoers misplaced belief that the person in whom he confided would not reveal his wrongdoing. Lewis v. United States: 1967 i. Holding: 4th amendment not violated when a federal agent misrepresented his identity and purpose and thereby obtained an invitation to the defendants home where an illegal sale of drugs occurred in the agents presence because his activities on the premises were within the scope of the invitation. Lopez v. United States: 1963 i. Holding: No search occurs when an undercover agent consensually enters a criminal suspects premises with a hidden tape recorder on the agents body and there engages the suspect in incriminating conversations. On Lee v. Untied States:1952 i. Facts: Suspected that D had drugs in her apartment, the police persuade a friend to visit her to confirm the existence of the drugs. The police arrest D based on friends observations. ii.Holding: No search occurs when an undercover agent consensually enters a criminal suspects premises with a hidden transmitter on the agents body and there engages the suspect in incriminating conversations. Difference between these cases and Katz: i. In Katz defendant did not know that anyone was listening. Here defendant spoke to someone. ii.All of these cases were treated as business deals and the undercover agent was invited in. United States v. White: 1971: i. Facts: Defendant arrested for drugs. Informant let officers hide in his closet and wore a wire that the agents could use to hear the conversations in his car and at a restaurant. The prosecution was unable to produce the informant at the trial, so the agents testified. ii.Holding: Informant or Undercover agent wearing wire tap does not require a warrant. 1. No reasonable expectation of privacy that the person who are speaking to will not reveal the conversation. iii.Policy: This will aid in accuracy and reliability of evidence. Less subject to confounding by cross-examination, no threats or injuries to witnesses, better than un-aided memory of officers. 1. Majority White: looks at reasonable standard of expectations is for those contemplating illegal activities. 2. Vs. Harlan: Looks at expectation of privacy of innocents citizens in a free society, and law abiding members of society iv.Significance: You assume the risk that the person with whom you speak is going to convey the information to police. 1. Reasonable Expectation of guilty person. v.Rationale: Cites Hoffa. If he has no expectation of privacy against an informant, why would have one against an informant who is transmitting the conversation?

vi.Harlan Dissent: 2 assumptions of majority: a. There is no greater invasion of privacy in the third-party situation b. Uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement given the values and goals of our political system. 2. Because this is a more extensive intrusion into our privacy, it requires a stronger protection: a warrant. 3. Policy: this undermines the confidence and security characteristic of individual relationships between people. 4. Hoffa didnt have a third-party. With third-party, it insures full and accurate disclosure free of the possibility of error. 5. People would act differently if they knew everything were being recorded, than merely remembered. We expect people to overlook and forget a great deal of what we say. 6. Says that majority overlooks how this subjects all people to this, not just innocent, and doesnt throw out evidence, merely requires a warrant. 7. Issue here faces the public generally, not just the guilty. vii.Douglas 1. Free discourse is hurray l. Distinguish Katz from White: i. There is no 4th Amend protection for a misplaced belief that a person whom he voluntarily confides will not reveal the information. When a person misplaces trust, and makes incriminating statements to an informer, he does not have any justifiable expectation of privacy which has been violated. ii.Person who Katz was speaking with was not an informant iii.Significance: White narrows protectionperson with whom we speak m. CA v. Greenwood i. No protection for garbage. ii.Applies Katz doctrine n. Open Fields Doctrine i. Oliver v. United States: 1984: 1. Facts: Officers without search warrants enter private property ignoring no trespassing signs and observe marijuana. 2. Holding: No reasonable expectation of privacy in open fields. a. Entry into and exploration of open fields does not amount to a search within the meaning of the 4th amendment. b. Trespassing by law enforcement officials into open fields in not a fourth amendment search. 3. Policy: This is not the enclave envisioned by the framers to be free from government interference. ii.United States v. Dunn: 1987 1. Facts: Court distinguished between a barn located 50 yards from a fence surrounding defendants residence as OUTSIDE of the curtilage. 2. Holding: 4 factors to distinguish if area is within or outside of curtilage: a. Proximity of the land to the house b. Whether the area is included within enclosures surrounding the house c. The nature of the use to which the area is put d. Steps taken by the resident to protect that land in question from observation 3. Curtilage: land immediately surrounding and associated with the home. a. Curtilage is encompassed within the term houses in the 4th amendment, but receives somewhat less protection that the interior of the house itself. iii.California v. Ciraolo: 1986:

1. Facts: police officer obtains a private plane to fly over the backyard and observes

marijuana plants.
2. Holding: While this area was within the curtilage, it did not constitute a search.

3. Fails both prongs: Subjective: while there was a fence, cops on passing trucks still could have seen it a. Objective: police shouldnt have to look the other way when seeing a crime; and cops could observe crimes here from a public vantage point. o. California v. Greenwood: 1988 i. Facts: Officer asks garbage man to collect and turn over suspects garbage to her. The garbage contained items indicative of drug use. They then arrested the suspects and found more drugs. They then posted bail. Then there were more visitors, more garbage collections, more evidence, and another arrest. ii.Holding: No reasonable expectation of privacy in your garbage. 1. 4th amendment does not protect information knowingly exposed to the public 2. One cannot have a reasonable expectation of privacy in information voluntarily turned over to others. iii.Rationale: Here the suspects knowingly places their trash on the curb where it could be accessed by children, animals, snoops, etc. It was intentionally conveyed to the trash collector. iv.Brennan Dissent: 1. 4th amendment protects closed packages against inspection. The fact that he intended to discard rather than transport should not make the materials any less private. Greenwood did not expose the trash to the public, but the sealed trash bag. 2. The county ordinance forced him to do this, how can we fault someone for that. 3. Relinquishment of possession does not mean you lose a privacy expectation (like a letter). 4. Most people dont want others going through their trash. 5. The fact that someone might intrude (like a burglar) doesnt negate the privacy expectation. 12. Seizures a. United States v. Mendenhall: 1980 i. Facts: Officers stop a woman in the airport and request her documentation. ii.Holding:: A seizure is: in the view of all the circumstances surrounding the incident, a reasonable person would not have believed that he was free to leave. iii.Justice stewart gave factors which might suggest that a given police encounter was a seizure for 4th amendment purposes: (i) the threatening presence of several officers; (ii) the display of a weapon by an officer; (iii) some physical touching of the person of the citizen; (iv) tone of voice or use of language implying cooperation was required. b. Brower v. County of Inyo: 1989 i. Facts: dealt with whether police had seized defendant when they set up a road block to stop him in a stolen car which killed him. ii.Holding: Violation of the 4th amendment requires an intentional acquisition of physical control. 1. A 4th amendment seizure occurs ONLY when there is a governmental termination of freedom of movement through means intentionally applied. a. So police intent does matter (objective intent)? c. Hodari v. California: 1991 i. Facts: Suspect discarded cocaine just before being tackled, but after fleeing, D contends that the seizure occurred at the moment of pursuit, not tackle, making the evidence inadmissible. ii.Holding: Thus seizure is either: (i) seizure by physical force; or (ii) show of authority plus submission. iii.To what extent is fleeing from the police sufficient to provide probable cause to warrant an arrest? On its own, no. But together with other evidence, yes.

iv.Dissent: Police may now chase people without reasonable suspicion in the hopes that in the process of fleeing they do something incriminating. a. Florida v. Bostick: 1991 i. Facts: Two officers board a bus and pick out a passenger without reasonable suspicion and ask to search his bags. He consents. Inside the bags they discover narcotics. Officer does tell passenger he has a right NOT to cooperate. ii.Holding: This was not an unreasonable seizure. Case remanded to see if reasonable person would have felt free to leave the encounter. iii.Proper Test: Objective Test: Whether a reasonable person in an already immobile condition at the time of the police encounter would feel free to decline the officers request or otherwise terminate the encounter. iv.Marshall Dissent: 1. Real issue is not whether passenger in respondents position would have felt free to deny consent to the search of his bag, but whether such a passenger without being apprised of his rights- would have felt free to terminate the antecedent encounter with police. 2. Marshalls answer no. 3. Other than complying, he had two options: a. Refuse to answer questions, but this would have aroused officers suspicions; or b. Tried to escape officers presence by leaving the bus. v.What counts in Bostick test? 1. Not the officers subjective intentions 2. Not the suspects subjective feelings 3. So this is like the Katz Reasonableness test. b. United States v. Drayton: 2002 i. Facts: Another bus stop. This time the officers do not tell the suspects that they do not have to cooperate. ii.Holding: The officers gave the passengers no reason to believe that they were required to answer the officers questions. 1. Relies on fact that cops didnt pull their guns. 2. Left aisle free so people could exit 3. Spoke to the passengers one by one in a polite, quiet voice, iii.Significance: 1. Extended Bostick by not requiring police officers to inform the defendants of their right to refuse to cooperate. iv.Dissent: 1. When police boarded the bus and announced that they would like cooperation, this set the scene that this was not a consensual exercise. And the bus would not leave until the interdiction was finished. 2. Probable Cause a. 2 parts of 4th Amendment: p. 53 in Dressler i. Amsterdam v. Taylor 1. Taylor argued that framers sought to limit the abuse of general warrants. Thus by requiring warrants and probable cause, the S.C. turned the 4th amendment on its head. 2. Amsterdam responds: a. Framers anted repudiation of general warrants, so it condemns them as unreasonable. b. Framers accepted specific warrants as reasonable as the second clause tells us. So indiscriminate character is what general warrants did wrong. This is the basis of the PROBABLE CAUSE requirement.

b.

c.

d.

e.

f.

g. h.

c. Best way to protect against arbitrary and unjustified searches is the warrant requirement and probable cause. Definitions of Probable Cause: i. Brinegar v. United States: 1949: when the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. ii.Nathanson v. Untied States: 1933. Probable cause is not a mere hunch. Draper v. United States: 1958: i. Facts: Informant, who had given reliable information in the past, told officer that Draper was peddling narcotics in Denver and that he had gone back to Chicago to bring back 3 ounces of heroin and told him exactly when Draper would return. Informant gave detailed description of what Draper was wearing and the bag he would be carrying. Officer went to train station and arrested him, and searched him, finding heroin ii.Holding: Police must corroborate the evidence. iii.Spinelli Reinterprets: Looks at the future predictive nature of the tip and indicating that the informant is relaying more than a casual rumor occasion based merely on the suspects reputation. Spinelli v. United States: 1969 i. Holding: 2 prong test for determining trustworthiness of an informants tip. (you need to satisfy both prongs for probable cause). 1. Basis-of-knowledge Prong: a. How did the informant get this knowledge? 2. Veracity Prong a. Why should I [the magistrate] believe this person? b. Typically proven by shown that the informant has proven reliable in the past. ii.Criticism: Too rigid, one should be able to compensate for the other. Illinois v. Gates: 1983 i. Facts: Defendants indicted for a violation of state drugs laws after officers executing a valid search warrant discovered marijuana and other contraband in their automobile and home. Police led to suspects from an anonymous tip (letter in the mail). They were then able to corroborate some of the facts relied upon in the letter (Address, flights to Florida, trip to florida, Illinois car in Florida registered to gates, hotel room in wifes name, left Florida driving towards IL). Officer then signed an affidavit re these facts and along with the anonymous letter submits them to a judge who issues a search warrant of the car and home. When Gates arrived home, officers were awaiting them, executed the warrant and uncovered drugs, weapons, contraband. ii.Holding: While the letter in Gates would fail the veracity prong of the Spinelli test, 1. Replaces Spinelli with Totality of the Circumstances Test. 2. Spinelli Factors are still highly relevant, but now you dont need to satisfy both of them, as one can compensate for the other. iii.White Concurrence: 1. Under this logic about veracity, a conclusory statement by an experienced police officer should be sufficient for probable cause. But the SC does not see it this way. iv.Criticisms of Gates: 1. Hard to predict the outcome 2. Easier to get a warrant Do defendants learn the identity of the informants? i. Generally not. (protect informant and incentivize them coming forward). Judge can make informant appear before him. Judge can use hearsay evidence Is there ever a case where informants identity must be disclosed? i. If informant has information about the commission of the crime Informants identity hidden when relating to probable cause.

i. Ornelas v. United States: 1996 1. Facts: Officer notices car parked in motel parking lot. Noticed it because: (i) it was an

older model and a favorite for drug couriers because it was easy to hide things in; and (ii) he had a California license plate and CA is a source state. The officers then contact NADDIS and find out both men are drug dealers. When the suspects leave the motel for the car, the officer approaches them and asks them if they have any illegal drugs or contraband. They respond no. They then consent to the search (suspects contest this). Inside a panel in the car the cocaine is found. 2. Holding: Appellate Courts review probable cause de novo, not deferentially. a. Should still use deferential treatment for factual findings and credibility because they hear the evidence and are better positioned. ii.Maryland v. Pringle: 2003 1. Facts: Defendant was a passenger in a car stopped for speeding. The officer asked the driver for his license and registration and when he opened the glove box, saw a wad of bills. He went back to his car and saw there were no warrants for any of the defendants. He then asked to search the car. The search revealed cocaine near the passenger seat. The officer asked whose it was and threatened to arrest all three if no one came forward. All three were arrested and the defendant later confessed the drugs were his. 2. Holding: This was probable cause 3. Common Enterprise Principle: car passenger and driver often engage in a common enterprise and have the same interests in concealing the fruits or evidence of their wrongdoing. iii.Ybarra v. Illinois: 1979 1. Facts: Police has search warrant for bar and bartended. P is a customer, they search him and find drugs without probable cause to search him individually. 2. Holding: Need to have probable cause to search him individually. 3. The Warrant Requirement (2nd half of the 4th dominating). a. Background i. Elements 1. Issued by . . . Neutral and Detached Magistrate 2. upon showing of . . . Probable Cause 3. supported by . . . Oath or Affirmation (i.e. affidavit) 4. Particularity Warrant has: a. Affidavit b. Judge's authorization c. Return - prepared by police after search indicating what they found and where they search. They leave a copy at place of search and file one with court. ii.Determined using totality of circumstances before the invasion (informants info and other available facts) b. Policy of Warrant: Insures Probable Cause i. Also, dont want police to err in judgments over probable cause, rather, impartial person (judge). ii.Dont want judges deciding after the fact because they might be prejudiced by what was found. iii.Requires the police to identify the information that they have at the time, so that they cannot add information later obtained via the search. iv.By seeking warrants, police can learn whats expected of them. v.Raises the costs of getting warrants deters frivolous searches vi.Protects police from civil liability c. Values: i. Democracy ii.Individuality

d. e.

f.

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h.

i.

1. Defendant is a proxy of us all: innocent and guilty alike. 2. How do we reconcile these: Utilitarian balancing test Arguments against the warrant requirement The Oath or Affirmation Requirement i. Usually satisfied by specifying the facts giving rise to probable cause in a police officers affidavit that is attached to the warrant application. Oral statements may also be sworn. ii.Negligent or innocent falsehoods will not invalidate a warrant. But reckless or perjurous can, if the remaining content is insufficient to establish probable cause. Franks v. Delaware. The Magistrate i. Required to be neutral and detached. ii.Coolidge v. New Hampshire: State AG cant issue a warrant in case he is investigating. iii.Connally v. Georgia: Magistrate cant receive a fee for issuing warrants but not for refusing them. iv.Critics argue Court has failed to do much else and that rubberstamp method is susceptible to scandal. v.Shadwick v. City of Tampa: Clerks without law degrees can issue warrants for municipal violations. The Particularity Requirement i. 4th amendment requires warrants particularly describe the place to be searched, and the persons or things to be seized. ii.Place to be Searched: Steele v. US: the description should be particular enough to permit an officer with reasonable effort to ascertain and identify the place intended. iii.Maryland v. Garrison: If officers search the wrong place, as long as the officers failure to realize the breadth of the warrant was objectively reasonable, it was ok (officers searched wrong 3rd floor apt and uncovered contraband). iv.Particularity requirement for items sought to be seized serves several purposes: 1. Supports probable cause, if officers cant articulate what they want, there probably isnt probable cause 2. Limits legitimate scope of the searches both spatially and temporally. 3. Helps ensure people will not be deprived of their property. v.However, can still seize anything in plain view vi.Andrerson v. Maryland: and can be vague because CT interprets it as pertaining to the crime suspected. other fruits, instrumentalities, and evidence of crime at this time unknown. Stuntz: i. Stuntz argues warrants fulfill two roles: (i) doesnt let after-the-fact probable cause determinations be biased by knowledge that incriminating evidence was found; and (ii) police would be more likely to lie in suppression hearings if they didnt have to state the relevant facts before the search. The Execution of Warrants: Knock and Announce Requirement i. Originated from reasonableness of 4th amendment. ii.Wilson v. Arkansas: 1995: Absent some law enforcement interest establishing the reasonableness of an unannounced intrusion, 4th amendment requires officers to knock and announce themselves before entering and executing the warrant. iii.Richards v. Wisconsin: 1997: Supreme Court rejects per se rule that felony drug investigations always permit no-knock entries. In order to justify a no-knock entry: police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of the evidence. 1. No Blanket Rule for Drugs

iv.US v. Ramirez: 1998: Richards standard applies even where officers must damage property to

make their unannounced entry. Touchstone of reasonableness highlighted. Unnecessary or excessive destruction of property during a search may violate the 4th even if the entry is lawful. v.SC has recently held that failure to knock and announce does not require suppression of evidence. vi.Policy: 1. Purpose of K+A a. To protect police, so that defendant doesnt think they're burglars b. Prevent property damage c. Protect privacy interest d. To direct police to where they should search 2. Where in the Fourth Amendment is the K+A doctrine? a. Not explicit. See Wilson v. Arkansas above. Common law requirement. Required by Federal Law for Federal police to K+A, and then Justice Thomas and Scalia codified it in the Constitution. vii.United States v. Banks: 2003 1. Facts: Suspect wanted for cocaine possession. Officers announce and knock. Defendant in the shower and doesnt hear until officers open door with a battering ram 15-20 seconds after first knocking. Contraband and weapons found inside of the home. 2. Holding: This was an okay time to wait. Entry justified. 3. Rationale: Drugs could have been flushed within much longer. j. Sneak and Peak Cases: Unannounced and covert entry in which notice of the search is delayed. i. US v. Villegas: Sneak and Peak warrants: where no notice till after the search can be valid for good reason. ii.Notice may be delayed in all federal cases if: 1. Court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an averse result; a. Endangering life or property of individual; flight from prosecution evidence tampering; witness intimidation; etc. 2. The warrant prohibits the seizure of any tangible property except where the court finds reasonable necessity for the seizure; and 3. The warrant provides for the giving of such notice within a reasonable period of its execution which period may thereafter be extended by the court for good cause shown. iii.Courts found seizures were necessary in these sneak-and peak cases: 1. To prevent jeopardizing the investigation by protecting the safety of confidential informants; 2. To prevent compromising an investigation by preventing the removal or destruction of evidence; and/or 3. To seize controlled substances that are inherently dangerous to the community. k. First Amendment i. Stanford Daily v. Zuercher: 1978: Court refused to limit warrants when they wanted to search a newspaper officer. 1. Holding: First amendment not a bar in the search 2. Congress passed a law against this type of search. 4. Exceptions to Warrant Requirement a. Exigent Circumstances i. Warrantless Searches must end when exigency ends 1. Mincey v. Arizona: 1978 a. Facts: Officer arranges to buy drugs from defendant. He leaves to get money and returns with nine other plain clothes officers and a deputy county attorney. When he knocks the door is opened by not the defendant, but by his acquaintance, one of

three who was in the living room of the apartment. When the acquaintance opened the door, the officer slipped inside, and then the other officers forced their way in the door. As the police entered a shootout happened in the bedroom and the officer was injured and later died and the defendant was shot. Police on the scene performed a search looking for other victims and found them. They did nothing else because there was a policy of not investigating an incident in which they were involved. b. Holding: Exigent Circumstances not present. i. Warrantless search not okay simply because it was a murder scene. c. Exigent circumstances include: (i) evidence likely to be lost, destroyed, or removed; or (ii) warrant would not be easy to obtain. 2. Flippo v. West Virginia: 1999 a. Defendant called police to report that they had been attacked. When police arrive they find defendant and his dead wife. Officers close the area and conduct an extensive 16 hour search during which they opened a briefcase and seized photographs and negatives. b. Holding: No exigent circumstances. i. Officers should not be required to get a warrant when they cant feasibly do so. ii.Fleeing Suspects 1. Warden v. Hayden: 1967 a. Facts: Defendant is a robber who takes off running. Two cab drivers follow him and call the cops and tell them he is in a house. Cops search the house without a warrant. b. Holding: Exigent Circumstances existed i. Police had the right to search any place in the home where the armed robber, anyone who might interfere with the arrest, and/or weapons might be found. c. Rationale: i. Requiring a warrant here might have gravely endangered the lives of others. Speed was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of the weapons which could be used against them in an escape. iii.Destruction of Evidence: Fear that if officers do not act immediately, evidence will be destroyed. 1. Mendez v. Colorado: 1999 a. Facts: Cops smell marijuana burning while on an unrelated call. They get hotel manager. They get manager to open the door and discover defendants in the process of flushing the marijuana. b. Holding: Where there is a real and substantial likelihood that contraband would continue to be destroyed before a warrant could be obtained, the warrantless search is warranted. 2. United States v. Dickerson: 1999 a. Facts: Officers had knock and announce warrant to search Ds house, but find him outside and after a noisy confrontation arrest him. They then enter the house without any announcement (no warrant). b. Holding: Court held this was ok because there might be others in the house who, having heard the noisy confrontation, would be destroying the evidence). 3. United States v. Johnson: 1999

a. Facts: Police went to apartment under knock and talk practice. When about to knock D opens door and refuses cops entry. Cops claim they see woman inside throw a crack pipe. This testimony was not believed. They then frisked the D and entered the apartment finding drugs and guns. b. Holding: Entry here was not allowed. No reason to enter if evidence is not believed. c. No probable cause for arrest here. iv.Community Caretaking and the Simpson Search: Court fairly quick to find exigent circumstances in these cases 1. Sometimes police need to enter a home or building quickly for reasons that have nothing to do with catching criminals or finding evidence. (neighbors havent heard from elderly neighbors, etc.) 2. What if in such a circumstance, police enter and find no one, but find a lot of drugs? 3. Same when neighbors report a possible burglary and cops show up and find a door left open, but drugs. 4. Livingston: this evidence should be admissible. Why? a. Because law enforcement motives are different, less of an intrusion on privacy rights. i. Does not damage reputation or manifest suspicion in the community b. Not an intrusive as a more extensive search c. Potential for overzealousness amongst officers is less when caretaking than trying to convict criminals. 5. Concern: Cops might use this exception as a pretense for an evidentiary search. 6. OJ Simpson Case: a. Facts: Cops claim fearing for OJs safety and in attempt to notify him that they discover famous bloody glove. 7. Why was admitting OJ evidence wrong? a. Turow says Simpson case allowing evidence was a mistake: b. Cops had great incentives to lie for most powerful piece of evidence. c. 4 officers not needed to inform OJ and they should have known him to be a likely suspect (as many husbands are when wives are murdered) d. Fuhrman knew of domestic violence history of OJ and his exceptional athletic prowess that would also make him a likely suspect. 5. Plain View and Vehicles a. Plain View i. Requirements: Immediately Apparent Contraband and Evidence of Crimes can be Seized if in Seen Within Scope of Intrusion of a Lawful Entry 1. New York v. Class (1986) a. Facts: i. Tried to claim reasonable expectation of privacy re: the VIN on a car after cop, when looking for VIN, saw gun. b. Holding: i. VIN is required to be placed in plain view, therefore no expectation of privacy. Cops search was reasonably restricted to a search for the VIN, and gun was in plain view. 2. Arizona v. Hicks (1986) a. Facts: i. Police respond to reports of shooting, enter apartment and see stereo equipment that seems out of place. Move it around to see serial numbers b. Holding:

i. Need probable cause to conduct a warrantless search. Reasonable suspicion, as was found in this case, is insufficient. 3. Horton v. California (1990) a. Facts: i. Officer had warrant to search for proceeds of robbery including rings. Didnt find stolen property but found gun in plain view. b. Holding: i. Plain view doctrine is justified when there is (1) lawful arrival at the place from which the object can be plainly seen, (2) lawful access to the object seized, and (3) an object whose incriminating nature is immediately apparent. ii.Again, Plain View Doctrine does not justify entry into the house. ii.Automobiles 1. No Warrants Required for Cars, Containers a. Carroll v. U.S. (1925) i. Facts: 1. Fed Prohibition agents w/state police encountered a car on the highway whose occupants were believed to be bootleggers. Stopped the car and searched it w/o warrant. ii.Holding: 1. Automobile Exception a. Searches and seizures of stopped cars acceptable with reasonable/probable cause if obtaining a warrant is not reasonably practical. i. Exception justified b/c vehicle can quickly move out of the locality or jurisdiction in which the warrant must be sought. b. Chambers v. Maroney (1970) i. Facts: 1. Police stopped a car based on probable cause that its occupants had just committed a late night robbery. Arrested suspects, drove car to police station, where a thorough warrantless search was conducted, producing evidence. ii.Holding: 1. Decision to move car to police station before conducting the search was not unreasonable b/c it was potentially dangerous to conduct search at night on a dark street. a. Had the right to search it at the scene, no reason to deny that search b/c of a decision to move to a safer location. b. Conflicts with Mincey (emergency over) i. Justified in light of potentially perverse incentive for cops to perform questionable search @ the scene. 2. Containers in Cars See Acevedo a. U.S. v. Chadwick (1977) i. Facts: 1. Federal agents had probable cause to believe suspect on train had marijuana in footlocker. Suspect disembarks, gets in car, cops rush him before he could even start car. Cops bring car and footlocker to police station, perform warrantless search. ii.Holding: 1. Search of footlocker unjustified. Expectations of privacy greater in a footlocker than in an automobile

b.

c.

d.

e.

a. Dangers of an automobile is based in part on i. the inherent mobility; ii.diminished expectation of privacy surrounding the automobile. iii.Highly regulated by states, including inspection requirement 2. Return to Katz reasonable expectation of privacy Arkansas v. Sanders (1979) i. Facts: 1. Police had probable cause to believe that a green suitcase carried by an airline passenger contained marijuana. They waited until the suspect put the suitcase in the trunk of a taxicab and left the airport before giving chase. Stopped taxi, searched suitcase, 9.3lbs marijuana. ii.Holding: 1. The exigency of mobility must be assessed at the point immediately before the search after police have seized the object to be searched and have it securely within their control. 2. Suitcase did not have a diminished expectation of privacy simply because it was seized from the trunk of a car. 3. Continues the return to Katz Robbins v. California (1981) i. Facts: 1. Police stopped cart for erratic driving, noticed smell of marijuana. Arrested driver, conducted warrantless search. In recessed compartment, found marijuana secured in opaque plastic wrap (like plastic bags). ii.Holding: 1. Four-Justice plurality held search violated 4th A. Bricks were in a closed, opaque container indistinguishable from locker in Chadwick and suitcase in Sanders. 2. Last of the 3 Katz cases. iii.Powell (Concurrence) 1. D manifested reasonable expectation of privacy by wrapping bricks in plastic, but this doesnt justify blanket rule for other types of bags that dont show the same. U.S.v. Ross (1982) i. Facts: 1. Police had probable cause to believe that Ross was selling narcotics out of the trunk of his maroon Chevy Malibu. Saw Ross driving the Malibu, stopped the car, and arrested him. Conducted warrantless search, finding closed brown paper bag containing heroin. ii.Holding: 1. Scope of the a warrantless search of containers in cars is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Two analyses: a. If probable cause to search the car: i. Can search the whole car (Ross) b. If probable cause to search a specific container: i. Need a warrant to search the container, but can still hold the container until they acquire warrant. 2. Departure from Katz California v. Acevedo i. Facts:

1. Officers had probable cause to search a bag in Acevedos car. Stopped the car, opened the trunk and the bag, found marijuana. ii.Holding: 1. Police may search an automobile and any containers within it when they have probable cause to believe contraband or evidence of crime is present anywhere inside. 2. Limited to areas where the object might reasonably be hidden based on its size and shape 3. Departure from Katz iii.Dissent (Stevens) 1. If police have probable cause to believe that a container has evidence of crime in a car, they can search it. But if they want to search it before it goes in the car, then they need a warrant. f. California v. Carney i. Holding: Auto exception applies to mobile home (Winnebago). 3. Passengers also Subject to Search w/Probable Cause a. Wyoming v. Houghton i. Facts: 1. Car w/passenger was speeding and break light was missing, after stop, police gained probable cause to search car b/c of drivers syringe (drugs). ii.Holding: 1. Police officers w/probable cause to search a vehicle may inspect passengers belongings that are capable of concealing the object of the search. 6. Arrests and Searches upon Arrest a. Probable Cause i. No Warrant needed to arrest someone with probable cause, unless its in the Home. 1. U.S. v. Watson (1976) a. Facts: i. Federal Postal Inspectors received a reliable tip that Watson was in possession of stolen credit cards. The inspectors persuaded the tipster (who had worked the scam w/ Watson) to set up a meeting. At meeting, tipster signaled cops that Watson had credit cards, cops busted him, w/o warrant but w/probable cause. b. Holding: i. No warrant needed to arrest a suspect if police have probable cause. ii.Majority limits analysis to history, common law did not require warrants in all cases. c. Powell Concurrence: i. Logic of not requiring warrant doesnt make sense, as a warrant is required for search, arrest is a bigger intrusion ii.But its practical, so I concur. d. Marshall (dissent): i. At common law, police needed warrants for any misdemeanor, encompassing almost all crimes ii.Only felonies were murder, attempted murder, rape, kidnapping, obstruction, perjury iii.Why not always require arrest warrants? 1. Police can get an anticipatory warrant e. Stuntz: i. Hurts poor more than the rich, b/c the rich are insulated

2. Riverside v. McLaughlin (1991)

a. Holding: i. A defendant arrested without a warrant and held in custody must receive, within 48 hours, a judicial determination of whether his arrest met the probable cause standard. 3. Payton v. New York (1980) a. Facts: i. Police entered Ds home to make arrest, but had no arrest warrant. b. Holding: i. Police need an arrest warrant to perform an arrest in the home. 1. But not a search warrant. 2. Must name suspects dwelling. 4. Steagald v. U.S. (1981) a. Facts: i. Officers had an arrest warrant for suspect, had a tip from informant that he would be at 3rd partys house. Officers went and searched for the suspect, ended up finding cocaine. b. Holding: i. An arrest warrant does not justify the search of the home of someone other than the arrestee. 1. So what do they need, to be particular on the arrest warrant, or a search warrant? ii.Misdemeanors and Traffic, Officer Intent 1. Atwater v. Lago Vista (2001) a. Facts: i. Woman driving her kids w/o their seatbelts on, arrested. b. Holding: i. No arrest warrant required for misdemeanors that occur in the presence of an officer 1. Probable cause applies to all arrests (except those in the home) ii.Rejects Katz Model for bright line rule 1. Cant have officers trying to determine what is a jailable offense, especially if they dont know details about arrestee c. Dissent: i. Need balancing test like in Houghton ii.Less serious crime 2. Whren v. United States (1996) a. Holding: i. A police officers motive for making a traffic stop (and accompanying detention) does not affect the constitutionality of the stop, so long as there was probable cause to believe that the traffic violation had occurred. 3. Originalism a. Does the 4th Amendment codify the common law circa 1787 into an unchanging set of rules? b. Does the common law set the floor? c. Scalia if the CL provides an answer, thats the end of the story. If it doesnt , then look to competing balances. Look to reasonableness inhibit discretion of judges. iii.Arresting Without Probable Cause 1. U.S. v. Awadallah (2003)

a. Facts:
i. Feds had evidence that Awadallah had been in contact with two 9/11

hijackers in the days immediately before attack. ii.He was arrested, interviewed intensively for three weeks, then testified in front of fed. Grand jury. iii.Charged with false statements made during testimony, he claimed statements were fruit of an unconstitutional arrest. b. Holding: i. 18 USC 3144: material witnesses can be detained even if theyve committed no crime 1. if it is shown that it may become impractical to secure the presence of the person by subpoena, judicial officer can order arrest. ii.Majority states that the statute sufficiently limits the infringement on individual liberty and reasonably balances it against the governments countervailing interests. iii.Authorizes continued detention even after deposed, if further detention is necessary to prevent failure of further justice b. Searches Incident to Arrest i. Expansion of the right to search incident to arrest 1. Weeks v. U.S. (1914) a. Holding: i. Right always recognized under English and American law that officers are allowed to search the person of the accused pursuant to a valid arrest to discover and seize the fruits or evidences of crimes. 2. Carroll v. U.S. (1925) a. Facts: i. Car search case b. Holding: i. Weeks includes whatever is found upon the arrestees person or in his control which it is unlawful for him to have and which may be used to prove the offense. 3. Agnello v. U.S. (1925) a. Holding: i. Carroll rule also encompasses the place where the arrest is made in order to seize things connected with the crimes as its fruits or as the means by which it was committed, as well as weapons and other thing s to effect an escape from custody. 4. Marron v. U.S. (1927) a. Facts: i. Search conducted pursuant to a warrant, but clearly exceeded the scope of the warrant. b. Holding: i. Search-incident authority extended to all parts of the premises used for the lawful purpose. ii.Pushback from Marron leads to dispute, leads to Chimel, then expands. 1. Go-Bart Importing Co. v. U.S. (1931) a. Holding: i. Search of a desk, safe, and other parts of an office was unlawful, in part, b/c officers had an abundance of information and time to obtain a search warrant

2. U.S. v. Lefkowitz (1932)

3.

4.

5.

6.

7.

a. Holding: i. Court invalidated the warrantless search of desk drawers and a cabinet, despite the fact the search was conducted in connection with a valid arrest. Harris v. U.S. (1947) a. Facts: i. Police arrested D in living room of his apartment on a forgery charge, and proceeded to search the apartment for forged checks. Instead, they found and seized altered Selective Service Doctrine b. Holding: i. Search upheld as incident to arrest Trupiano v. U.S. (1947) a. Facts: i. Police arrested a bootlegger in the act of distilling illegal liquor, and proceeded to seize the still without a warrant. b. Holding: i. 4th Amendment violation U.S. v. Rabinowitz (1950) a. Facts: i. Federal agents obtained a warrant to arrest D for forgery of stamps. Warrant served at one-room business office, agents then conducted 90minute search, seized evidence. b. Holding: i. Citing Harris, agents had the right to search the place where the arrest is made in order to find and seize things connected with the crime. Chimel v. U.S. (1969) a. Facts: i. Incident to an arrest @ residence, cops searched guys whole house b. Holding: i. A search incident to arrest is limited to area within the suspects immediate control. ii.(1) Officer safety and (2) preservation of evidence v. 4th A rights U.S. v. Robinson (1973) a. Facts: i. D.C. police officer stopped a car based on reliable information that drivers license revoked. All three occupants exited car, officer arrested driver. Searched him, found crumpled cigarette packet, and opened it (heroin inside) b. Holding: i. Search upheld: 1. a search may be made of the person of the arrestee by virtue of the lawful arrest 2. a search may be made of the area within the control of the arrestee ii.Serves two purposes: 1. Need to disarm the suspect in order to take him into custody 2. Need to preserve evidence on his person for later use at trial c. Dissent (Marshall): i. Majoritys decision would facilitate pre-textual arrests. Officers would arrest suspects for minor traffic infractions in order to search them for drugs.

ii.Assuming arguendo that search was justified, cant justify the search of the

cigarette pack. It was not a threat to safety. 1. Also says that if we searched entitled whites like this they would be pissed 8. Maryland v. Buie (1990) a. Facts: i. Multiple suspect armed robbery, arrest @ house during which cop searches basement for possible co-D b. Holding: i. Protective Sweep 1. Officers with a reasonable, articulable, suspicion that the area to be swept harbors an individual posing a danger to those present can perform a protective sweep. 9. N.Y. v. Belton (1981) a. Facts: i. Belton pulled over for speeding, officer saw small quantity of marijuana on the floor of car and arrested him for possession. Officer then searched passenger compartment and jacket in back seat, found cocaine. b. Holding: i. When a policeman has made a valid arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the auto (including glove box) ii.Belton just gives the powers from Acevedo to cops who perform a valid arrest of someone in the auto 10. Thornton v. U.S. (2004) a. Facts: i. Before officer could pull over D, D parked and got out of car. Cop parked, accosted D, and arrested him after finding drugs in his pocket. Incident to arrest officer searched car, found handgun under the drivers seat. b. Holding: i. Belton applies even when officer is short distance outside the vehicle 7. Reasonableness and Stop and Frisk a. Reasonableness i. Officers can satisfy 4th A if they possess a reasonable suspicion before certain intrusions. 1. Tony Amsterdam a. appellate courts [will] defer to trial courts and trial courts...to the police. If there are no fairly clear rules telling the policeman what he may and may not do, courts are seldom going to saw what he did was unreasonable. 2. Camara v. Municipal Court (1967); See v. City of Seattle (1967) a. Facts: i. Conflict re: 4th amendment constraints on fire, health, and housing code inspections b. Holding: i. Here, probable cause is satisfied by reasonableness. If govt interest is high to perform these inspections, then its reasonable, and they have probable cause. ii.This is reasonable, and therefore is necessary c. Professor Sundby (p. 556) i. after Camara, reasonableness, in the form of a balancing test, defined probable cause...Reasonableness...had finally gained entrance into 4th amendment analysis, albeit through the backdoor of the warrant clause.

3. Terry v. Ohio (1968)

4.

5.

6. 7.

a. Facts: i. Officer observed Terry and two other men walking back and forth in front of a store, believed that they planned to rob it. When confronted, the men acted suspiciously. The officer frisked them and discovered that Terry and another were armed. b. Holding: i. For a STOP: 1. Officer must have reasonable suspicion that a suspect is engaged in criminal activity. ii.For a FRISK: 1. Police must have reasonable suspicion that a suspect is armed and dangerous. iii.Definition of detention 1. If a person does not feel free to leave, he has been detained. 2. See Dunaway iv.Critique (echoed in Douglas dissent): 1. Justices perhaps influenced by political climate (68 riots) v.Critique, Livingston 1. This is going to fracture already fragile race relations c. Dissent: i. Harlan tried to limit Terry to violent crimes, failed. Dunaway v. NY (1979) a. Facts: i. D, murder suspect, was taken into custody w/o probable cause, and although he wasnt told he was under arrest, he would have been physically restrained if he attempted to leave. Was then questioned in custody b. Holding: i. Terry reasonableness does not extend to seizures ii.This detention was indistinguishable from an arrest, which requires probable cause. 1. Claims Terry was less intrusive iii.Later decisions upheld such detentions as in Dunaway if based on reasonable, articulable, suspicion? Florida v. Royer (1983) a. Facts: i. D was observed @ Miami International Airport. He fit the drug courier profile, was nervous, and the name on ticket wasnt his. They detained him, questioned him, brought his luggage back and searched it. b. Holding: i. Terry applies to suspected criminal activity that doesnt involve violence (Terry was potential armed robbery) ii.Once the seizure goes from brief to a more serious intrusion (an arrest or its equivalent, or goes too long?), they need more than a reasonable suspicion to justify the detention. 1. Terry questions how long of a seizure is permissible Adams v. Williams (1972) U.S. v. Place (1983) a. Facts:

i. Fed narcs had articulable suspicion to believe that two suitcases of D,

departing plane @ LaGuardia, contained narcotics. D refused to consent to search. Officers seized suitcases and took them to Kennedy Airport and the drug dogs. Dogs smelled drugs. Police then got search warrant and found coke in bag. b. Holding: i. When an officers observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, Terry allows the officer to detain the luggage briefly to investigate the circumstances. 8. Illinois v. Wardlow (2000) a. Facts: i. Officers saw D holding opaque bag, D inexplicably fled. Cops were in unmarked car. When officers caught him, one stopped him and conducted Terry frisk b. Holding (5-4): i. Officer was justified in suspecting that the accused was involved in criminal activity, and was therefore justified in investigating further. 1. Flight can be part of TOC/reasonable suspicion c. Dissent (Rehnquist) i. You cant say definitely that flight = guilt ii.Reasonableness and officer safety 1. U.S. v. Sharpe (1985) a. Facts: i. Fed drug agent and highway patrolman, in two cars, tried to stop a Pontiac and a blue pickup w/camper on suspicion that the vehicles, travelling in tandem, were transporting contraband. ii.One officer pulled over camper, waited for 20 minutes for another officer to arrive before performing the search. b. Holding: i. In assessing whether detention during an investigative stop is too long in duration, examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain D. 1. The question is not whether some alternative was available, but whether the police acted unreasonably in failing to recognize and pursue it. c. Separate opinion (Marshall) i. The intrusiveness of a stop is to be measured independently of law enforcement needs. Stop must first be found not unduly intrusive, particularly in its length, before it is proper to consider whether law enforcement aims warrant limited investigation. 2. Pennsylvania v. Mimms (1977) a. Facts: i. D was lawfully stopped for driving w/expired license plate, ordered out of his car. Officer noticed bulge, performed Terry frisk, found gun. b. Holding: i. Governments interest in demanding those in traffic stops from getting out of their car as a practice outweighs citizens interest in remaining in the car. 1. Additional intrusion is de minimis 3. Maryland v. Wilson (1997) a. Holding:

i. Court applies Mimms to passengers 4. Michigan v. Long (1983)

a. Facts:
i. Officers observed D driving erratically, stopped to investigate. When they

arrived, D was out of vehicle, door was open. When D walked towards car, police followed, saw knife in car, Terry-frisked D. Then shined flashlight into the car, looking for other weapons. Saw marijuana. b. Holding: i. Search satisfied Terry, even though suspect was outside of the car he was still going to return to it after the stop. ii.With that in mind, officers still need only the reasonable suspicion 5. Minnesota v. Dickerson (1983) a. Holding: i. plain feel exception 1. when, during a Terry frisk, an officer feels an item he believes may be contraband, he must have probable cause to search. ii.Criticism 1. Distinction gets arbitrary in this case, officer squeezing for a gun, ended up squeezing crack lump the squeezes exceeded the scope of the search(?) iii.Reasonable Suspicion and Informants 1. Alabama v. White (1990) a. Facts: i. Unknown informant gave a tip that a person would leave their apt at a specified time, get in a specific car, dive to specific hotel, w/drugs. b. Holding: i. Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arrive from information that is less reliable than that required to show probable cause. 1. Under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondents car. 2. Florida v. J.L. (2000) a. Facts: i. Police got anonymous tip that young black male was standing at a particular bus stop wearing a plaid shirt, carrying a gun. Police stopped him. b. Holding: i. An anonymous tip that lacks predicted information/fails to show familiarity with Ds affairs does not create a reasonable suspicion. ii.Distinguished from Gates 1. Police corroborated informants claims in Gates. 3. U.S. v. Arvizu (2002) a. Facts: i. Post-9/11, border patrol agent stopped minivan w/two adults three children; suspected van might contain drugs. b. Holding: i. Reasonable suspicion satisfied on the following facts:
1. Vehicle was a minivan, type smugglers use

2. 3. 4. 5. 6. 7. 8.

Van was on dirt road sometimes used by drug smugglers (sometimes vacationers too) Trip coincided w/point when agents have shift change Van slowed down when it saw agent Driver appeared stiff, posture rigid Children in the back of the van waived at agent as if instructed Kids knees propped up on something Van registered to an address near Mexican border, area notorious for alien and narcotics smuggling.

8. Police Discretion and Racial Profiling a. ??? i. ???? 1. Zebro Hypo, HO #7 a. Performing random stop-and-frisks to try and find missing murder suspect likely ineffective. b. Random searches would be better for things like drugs and contraband. 2. U.S. v. Sokolow (1989) a. Holding: i. DEA agents using a drug courier profile Terry stopped D at Honolulu Airport relying on probable factors: 1. Primary Factors a. City is source of drugs (Miami) b. No luggage or empty bags c. Short trip duration d. Alias used/diff name of ticket e. Large amount of money f. Buys tickets w/cash g. Suspect is nervous i. Avoids eye contact ii.First or last to leave iii.First class? iv.Walks quickly or slowly 2. Secondary Factors a. Public transportation b. Telephone call after flight c. False call-back number when reserving ticket d. Goes to city with odd frequency e. Flies during off-peak hours f. One way ticket g. Did not book direct flight 3. Need notes on articles 9. Alternatives to Probable Cause: Consent a. Consent i. Consent waives the Probable Cause Requirement 1. Schneckloth v. Bustamonte (1973) a. Facts: i. Auto stop w/multiple passengers, driver didnt have a license. Cops ordered everyone out, asked, Does the trunk open? b. Holding: i. 4th and 14th Amendments require that officers demonstrate that consent was voluntarily given, and not the result of duress or coercion, express or implied. 1. To bet determined from all the circumstances

2. While knowledge of right to refuse is a factor, prosecution is not required to

demonstrate such knowledge to prove consent. ii.Real reason consent to searches is too valuable a tool for the police iii.Consent is a question of fact. iv.will overborne c. Marshall (dissent) i. Consent is not meaningful unless D knows he could refuse the police. ii.Marshall would require state to prove that the defendant knew of his rights 2. Nadler (p. 675) a. A study of all Ohio highway stops between 95 and 97 found no decrease in consent rates after police were required to advise motorists of their right to refuse to cooperate with a request for consent to search. i. Also, see Miranda consent rates (my note) 3. Cole (p. 675) a. Study based on review of all cases involving consent searches in U.S. CoA D.C. Circuit from 1989 to 1995 showed that in each case in which validity of consent was challenged, court found consent to be voluntary. b. Consent claims more likely to be directed at young black men than wealthy white elderly women. i. In addition, wealthy whites more likely to know their rights. 4. Professor Thomas (p. 676) a. If police are routinely rewarded with consent, they have little incentive to develop individualized probable cause... 5. Illinois v. Rodriguez (1990) a. Facts: i. Guest at house consented to a search; police reasonably believed the woman had the authority to consent. b. Holding: i. Extends the TPCD to intrusions based on the consent of a third party that the police reasonably believed to possess a common authority over the premises, even when no such authority existed. ii.Third Party Consent Doctrine: 1. Police can search based on the consent of someone other than the suspect, provided that this third person has common authority over the area searched. a. Justified as an assumption of risk in Schneckloth iii.Reasonably Believed 1. In order to satisfy the reasonableness requirement of the 4th A, factual determinations of the officer, magistrate, etc, was correct, but was it reasonable. c. Dissent (Marshall) i. This case is contra Katz 1. These searches rest on the premise that a person may voluntarily limit his expectation of privacy by allowing others to exercise authority over his possessions. 10. Limits on the Exclusionary Remedy a. The Good Faith Exception i. Evidence not suppressible if officers act in good faith 1. U.S. v. Leon a. Facts:

i. Based on info from informant and another investigation, officers obtain facially valid search warrant. Conduct search, then warrant is determined to lack probable cause. b. Holding: i. Evidence obtained by an officer with a good faith belief that a warrant is based on sufficient probable cause will not be excluded ii.Exclusionary rule neither intended nor able to cure the invasion of the defendants rights which he has already suffered. 1. Rule was designed to deter unlawful police action, not punish the errors of magistrates. iii.No evidence that the exclusion of evidence will deter magistrates from issuing unsound warrants. 1. And exclusionary rule has a high social cost c. Dissent (Brennan): i. Court reduces exclusionary rule to a judicially created remedy to rptect 4th A through deterrent effect, rather than seeing it as a personal constitutional right. ii.This view of the scope of the Amendment relegates the judiciary to the periphery. iii.By admitting illegally obtained evidence, judiciary is explicit. 1. Evidence must not only condemn the event, but must ban the fruits. iv.Exclusionary Rule is valuable (690) 1. But the court methodically dismantles it (691) d. Leon Re-establishes Gates? i. Substantial deference to magistrate b. Standing i. Development of the law, not everyone has standing 1. Jones v. U.S. (1960) a. Facts: i. D did not have possessory interest, but had key to friends apt, in which he stayed for two weeks. b. Holding: i. In order to have standing to challenge an illegal search or seizure, one must have been a victim of [the] search or seizure, and one against whom the search was directed. 1. Not one whos only claim is that they got charged b/c of what they found ii.An overnight guest in a home may claim protection of 4th A, but one who is merely present with the consent of the householder can not. iii.This was development from old law, only those with possessory interest could challenge iv.Followed by Alderman 1. 4th A rights are personal rights which...may not be vicariously asserted. 2. Rakas v. Illinois (1978) a. Holding: i. Rejects Jones ii.A person aggrieved by a search only through the evidence from a third party has not had 4th A rights infringed. 1. Only D with their own reasonable expectation of privacy, not someone elses, gets protection. 3. California Derivative Standing Rule

a. Defendants could move to suppress any evidence used against them, regardless of

owner.
4. Also, see Katz (1969) (conflict)

a. Reasonable expectation of privacy should control 5. Minnesota v. Carter (1998) a. No standing? b. Facts: i. D was with companions bagging cocaine in someone elses house. Was not an overnight guest. Officers arrested D after seeing him do cocaine through window, get warrant, search, etc. ii.D argues that officers initial observation violated his 4th A rights 1. Owner of the home successfully made claim 4th A rights were violated, b/c she had standing. c. Holding: i. People who visit for a short time to not have the same protection against unreasonable s/s as do the residents or their overnight guests. 1. Short-term visits for commercial transactions not protected by 4th A. ii.Ginsburg (dissent) 1. What about the guy who delivers me pizza. iii.Carter reaffirms the importance of Katz. 6. U.S. v. Payner a. Facts: i. D charged w/ falsifying income tax return; hidden bank accounts, etc. Feds lure Ds bank officer to dinner while other agents enter his hotel room and steal incriminating documents. ii.D.O.J. atty told IRS agents that the bank officer could be robbed and D would not have standing. b. Holding: i. D did not have standing b/c hotel room, briefcase, documents, belonged to bank officer. 7. Steiker (p. 708) a. Decision Rules v. Conduct Rules i. Decision rules audience is the courts, tells them how to rule on situations 1. Changes in decision rules change compliance with conduct rules if the police become aware of these decisions. ii.Conduct Rules audience is police, tells them how to act 1. Direct police conduct (see Miranda) b. Standing Doctrine = Decision Rule i. You cant keep this from the police, and once they find out they are going to use it. 1. they may see little reason to continue to obey conduct rules that are consistently unenforced...[Changes in decision rules will necessarily change compliance with conduct rules. c. Fruit of the Poisonous Tree i. Fruit of the Poisonous Tree intertwined with standing 1. Wong Sun v. United States (1963) a. Facts: i. Hom Way arrested w/heroin, turned state and said he bought an ounce of heroin from Blackie Toy, proprietor of a laundry on Leavenworth Street ii.Feds raid Oyes Laundry, but had nothing to connect it to Blackie Toy.

iii.When they raid house, Toy made statements that incriminated Johnny Yee iv. Found ounce heroin on Yee, Yee incriminated Wong Sun v.Arrested Wong Sun, search didnt uncover any addl evidence. vi.Cops didnt prosecute Yee, used him as a witness to prosecute the others. b. Holding: i. Test: whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. ii.Analysis: 1. Toy: The heroin found in Yees house was the fruits of an illegal search of Toys house and illegal confession. Cannot be used. 2. Yee: The heroin found in Yees house can be used to implicate Wong Sun, as he has no standing to challenge the evidence. 3. Wong Sun: Heroin can be used against Song Sun. a. Wong Suns admission was not suppressible, b/c it was not sufficiently attenuated to the poisonous tree i. The gap in time eliminated the effect of the unconstitutional act b. If Toy would have confessed the Wong Sun was involved in the crimes when the police illegally searched his house, police could have used the info to implicate Wong Sun. 2. Applications: a. Scenario: Unconstitutional search of X leads to Y. Unconstitutional search of Y yields evidence against X & Y i. X has standing to object to the search of Xs house. 1. Y has no standing to object to the search of Xs house. ii.Y has standing to object to the search of Xs house. 1. X has no standing to object to the search of Ys house. 2. But, X can complain as the search was the fruit of illegal search of Xs house. b. Same situation, but now assume search of Ys house is constitutional i. Y has standing, but cannot object to the search ii.Constitutionality of the search of Ys house is irrelevant b/c the search of his house remains the poisoned tree that led to the fruit, the search of Ys house. c. Same situation as first, but now assume search of Xs house is constitutional i. Then X has no standing to object to the search of ys home. ii.Attenuation 1. From Wong Sun a. Test: whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 2. U.S. v. Ceccolini (1978) a. Holding: i. Evidence must indicate that testimony was of free will and in now way coerced or even induced in relation to the primary taint. 1. Witnesses different form actual evidence free will plays iii.Independent Source Doctrine 1. Murray v. U.S. (1988) a. Holding:

i. Was the evidence at issue obtained through an independent source? If so,

it is not suppressible b/c the illegal search did not cause the police to find it. b. Dissent (Marshall): i. Cops can manipulate this rule easily. They can make up an informant to confirm what they already found. iv.Inevitable Discovery Doctrine 1. Nix v. Williams/Brewer v. Williams (1984) a. Facts: i. Infriminating statements obtained in violation of rights led police to victims body. Body was not found through independent source, but was in a location where it would have inevitably been found, always. b. Holding: i. The question is would the evidence have been inevitably discovered? Again, if so, not suppressible. th 11. 5 Amendment a. History i. Fifth Amendment contains several constitutional protections 1. Three basic elements of the privilege a. Compulsion b. Incrimination c. Testimony 2. Boyd ushered in constitutional guarantee of privacy a. Covered any forcible and compulsory extortion of a mans own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods. i. In this regard the 4th and 5th run almost into each other. 3. Justice Marshall, Burrs Trial a. So how does judge decide the question? i. No in camera meeting ii.Judge has to decide given the nature of the question and the facts the judge knows about the controversy 1. would an honest answer constitute the methaphorical link in the chain leading to a prosecution b. Assert the privilege to every question? i. No. ii.But, witness has to be very careful 1. Dont want to waive the privilege by saying something substantive c. When is D a witness against himself? i. Only person who cannot be forced to testify as a witness in his trial ii.But other witnesses need a reason for not testify if they think their statements will incriminate themselves. d. What about subpoenas? i. Can still assert the 5th Amendment ii.But not in a criminal case? 1. If the case could be used against you in criminal court... b. The privilege and its justifications 1. Bram v. U.S. (1897) a. Facts: i. Murder on the high seas. D, a first mate, was arrested on boat and delivered to the authorities on land. Detective made him strip naked in his office. D did not confess, but did admit he could not have seen me from there. b. Holding:

i. A confession is suppressed if police actions create anything but purely voluntary actions; any degree of influence is cause for suppressing a confession. ii.We suppress because once we determined that the investigation is tainted, anything that D would say is unreliable. 1. Conflicts with Whites dissent in Watts would say that if the confession can be corroborated, it would be reliable. 2. Murphy v. Waterfront Commission of N.Y. Harbor (1964) a. Policy reasons for privilege i. Avoiding Cruel Trilemma 1. Guilty and tells truth self-accusation 2. Guilty and lies perjury 3. Abstains civil or criminal contempt ii.Preference for accusatorial rather than inquisitorial system of criminal justice 1. But there are plenty of aspects that are inquisitorial 2. Normative statement, doesnt tell us how 5th A is inquisitorial iii.Fear that self-incriminating statements will be elicited by inhumane treatments and abuses 1. Bram 2. Getting tainted confessions indexed to torturers desire iv.Sense of fair play 1. dictates a fair state/individual balance by requiring govt to leave the individual alone until good cause is shown for disturbing him and by requiring the govt to shoulder the entire load v.Privilege is sometimes a shelter to the guilty as often as a protection to the innocent? 1. Why would innocent need 5th A? 3. Professor Arenella re: Goldberg a. Some of the values seem to overlap with each other b. Many of the values are stated so abstractly that they can be used to justify almost any result i. Accusatorial v. inquisitorial c. The list of fundamental values suggests that the privilege against self-incrimination protects both: i. Substantive values 1. Privacy 2. Human dignity 3. Moral autonomy ii.Accusatorial process norms 1. Fair state-individual balance of advantage 2. Adversarial determination of guilt iii.Thus, we must first identify which values are implicated and what state interests might justify some impairment of the values 1. Balancing tests. 4. U.S. v. Balsys (1998) a. Holding: i. 5th A right does not extend to the risk of prosecution by a foreign nation. ii.Since the Judiciary could not recognize fear of foreign prosecution and at the same time preserve the Govts existing right to seek testimony in

exchange for immunity (b/c couldnt enforce abroad), cannot extend the right 1. Balancing test applied b. Policy: i. If the Government is ready to provide the requisite use and derivative use immunity, the protection goes no further: no violation of personality is recognized and no claim of privilege will avail. 1. Inviolability was the wrong word to use. c. Police Interrogation and the Miranda Revolution i. History 1. The applicability of the 5th Amendment to pretrial interrogation was not generally accepted at an early date in the country a. Hopt v. Utah (1884) i. Confessions excluded only if they were untrustworthy 2. See Bram v. U.S. (1897) i. Confession wasnt voluntary b. Bram had little immediate impact for two reasons: i. It was not until 1964 that the Sup Ct ruled that 5th A applied to the states Malloy v. Hogan (1964) ii.Although Bram invoked the 5th A, the standard the court implied was the common laws voluntariness standard 1. Rests on due process, not 5th A. Less rigorous. 3. Voluntariness applied to the states note DPC = DPC 5th A, not 14th, but still through 14th a. Brown v. Mississippi (1936) i. Torturing defendant was violation of due process b. Ashcraft v. Tennessee (1944) i. Marathon interviews led to confession that was not voluntary but compelled, violation of due process c. Watts v. Indiana (1949) i. Facts: 1. Relay interviews, in the exclusive control of the state even though he spent time in jail, as he was in solitary confinement in the hole. No hearing, no advice, etc. ii.Holding: 1. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from free choice. a. Very relentlessness of such interrogation implies that it is better for prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. iii.Jackson (dissent) 1. Instead of worrying about right against self-incrimination, we should be worried that this man was not advised of the right to counsel. 2. We should defer to trial and appellate courts to determine this unless that proves to be ineffective. iv.Debate in Watts continued another 15 years 1. Court reversed involuntary confessions with increased frequency. a. Payne v. Arkansas (1958)

i. Af-Am D with 5th-grade education was told that a white mob

would be waiting for him unless he confessed. ii.Moved from a discussion of whether will was overborne to whether police conduct was acceptable. 2. Justices distrusted state-court fact-finding processes a. If states cant be trusted to accurately apply a fact-based test like voluntariness, that is a problem i. States aiming for a certain result could simply manipulate its factual findings v.Summary 1. These problems, a. (dissatisfaction w/voluntariness approach, b. growing distrust of state factfinding procedures, c. Courts practical inability to act as effective court of error, d. implications of habeas had not yet been fully recognized(?)) 2. drove ct to seek out alternatives. Found one in the right to counsel 4. Massiah v. U.S. (1964) a. Facts: i. Custom agents searched Ds boat and found cocaine. They arraigned and indicted him and another suspect. That suspect cooperated w/govt agents and used a transmitter in his car, then had a conversation with D in which D incriminated himself. b. Holding: i. Once one is charged w/a crime, 6th A right to counsel attaches. Police cant use undercover agents or informants to obtain confessions after this right has attached. This was a 6th A issue b/c he already had an atty, and couldnt be interrogated w/o counsel presence. c. Significance: i. Move from due process protection to protection under right to counsel. d. Conflict/Distinguish i. From White: eavesdropping occurred before arrest and release on bail ii.Escobedo: Escobedo had not been charged w/a crime 1. Stewart dissented in Escobedo b/c majority used 6th before prosecution had begun iii.No Miranda b/c not in custody at time of eavesdropping iv.How is this a critical stage under Coleman? 5. Escobedo v. Illinois (1964) a. Facts: i. D had been arrested but not charged, and had invoked his right to counsel. The lawyer was present but not allowed to see the client because interrogation was not at a critical stage at that time. b. Holding: i. Officials cannot bar counsel from seeing his client once client is in custody and requests him.
ii.The Supreme Court overturned Escobedo's conviction and recognized a suspect's right to an attorney during police interrogation. Writing for the majority, Justice Arthur Goldberg viewed the police interrogation in this case as more of an interrogation of a specific suspect than a general questioning of witnesses. As such, he held the distinction between pre- and post-

indictment to be immaterial, since the police and prosecutor elicited a confession after they had already gotten the damning statement necessary to indict Escobedo. To hold otherwise, wrote Goldberg, would be to "exalt form over substance". The court had already recognized a right to counsel after indictment in Gideon v. Wainwright. Extending that precedent, it interpreted the Sixth Amendment's guarantee of a right to counsel as applying to defendants from the time they become primary suspects. iii.Dissents 1. Justice Potter Stewart's dissent essentially accused the majority of conflating the formal difference between pre and post-indictment questioning. Justice Byron White's dissent began with his disagreement about the applicability of cited precedent. He also criticized the majority's Constitutional interpretation, insisting that the Fifth Amendment's protection against self-incrimination elucidated the full intent of the framers to provide protection to suspects during police interrogation. All the dissenting opinions stressed the adverse impact the court's decision would have on combating crime. iv.MIRANDA 1. This holding was later overruled by Miranda v. Arizona, and the Supreme Court held that pre-indictment interrogations violates the Fifth Amendment, not the Sixth Amendment. As Escobedo was questioned during a custodial interrogation, the result for the appellant would have been the same. v.MIRANDA MOVES THIS FROM 6th to 5th. 6. Miranda v. Arizona (1966)

a. Facts: i. A suspected rapist who confessed both orally and in writing during custodial investigation appeals, contending he was not informed of his constitutional privilege against self-incrimination and right to counsel. b. Holding: i. Confessions produced by custodial interrogation are inadmissible unless the suspect was informed of: 1. Right to silence 2. The consequences of waiving the right (will be used against them at trial) 3. Right to retain counsel 4. If you cannot afford counsel, one would be appointed to you ii.Prosecutions burden to prove that D knowingly and intelligently waived rights c. Dissent (Harlan) i. 5th Amendment 1. This case cannot be sustained by precedents under 5th A a. Never been thought to forbid all pressure to self-incriminate i. Mild pressure permitted under DPC th ii.6 Amendment 1. Differences between judicial proceedings and police interrogation are so vast as to disqualify wholly the 6th A precedents as suitable analogies in the present cases. a. Danger lies in Ds inability to handle courtroom tactics

i. That danger shrinks markedly at the police station where the

lawyer becomes an obstacle to truthfinding...

iii.Miranda works indiscriminately 1. regardless of the severity of the crime or the circumstances involved.

2. Will slow down investigation and apprehension in cases where time is of the essence d. Rationale: i. Supreme Court didnt trust state courts ii.Custodial interrogation plays on the weaknesses of the people, police can abuse their power 1. Fear of innocent self-incrimination iii.Incommunicado interrogation threatens individual liberty iv.Lawyers mitigate the dangers of untrustworthiness v.Interrogation are per se compulsory e. Significance: i. Extends Escobedo (which had extended Massiah) ii.Without warnings, confessions inadmissible iii.Broadened right against self-incrimination to cover virtually all custodial interrogations iv.Established procedural safeguards that must be followed in order to avoid violation of rights 1. Goal of providing bright line standards not fully achieved; voluntariness/knowingness still Qs of fact v.Agencies in some states required police to tape investigations (AK, MN), and others just do it as a practice. vi.Refer to Miranda as prophylactic See NY v. Quarles, Oregon v. Elstad 1. Oregon v. Elstad a. Fruit of the poisonous tree doctrine does not apply to un-Mirandized statements b. Mother was in one room, son and police were in another. i. Casual interrogation ii.Went to police station, was then Mirandized, and then confessed. f. Obstacles i. Consent to Search (Schneckloth) 1. Officers do not need to tell suspects that they can refuse to consent to search when the police ask for permission
2. When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the 4th and 14th Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.

ii.Grand Jury 1. No right to lawyer during GJ trials iii.No Jail Time 1. Argersinger iv.High rates of waiver (p. 838) 1. Approx. 80% of suspects routinely waive Miranda. g. Contradiction

i. As Scalia states, the Sup. Ct. refers to Miranda as prophylactic, and not

constitutionally required in Quarles and Elstad,

7. Dickerson v. U.S. (2000)

a. Facts:
i. In response to Miranda, Congress enacted 18 U.S.C. 3501 which states

b.

c.

d.

e.

that the standard for interrogations was voluntariness, determined under the totality of the circumstances. This destroyed Miranda, making it merely a factor in determining the admissibility of confessions rather than the ultimate test. ii.Despite its passing, feds had never enforced 3501 for the 20? Or so years since its passing 1. Case only came through an amicus by Paul Cassell a. He recommended videotaping interrogations b. Didnt think Miranda was necessary c. Fed agents could be sued under 1983 Holding: i. Miranda is a constitutional rule, not merely an instance of the court exercising its supervisory authority in the absence of legislation. ii.Miranda rights are constitutional, but Miranda warnings specifically are not. States can substitute other processes for Miranda, but they must satisfy the requirements of Miranda. 1. But it is clear that the totality of the circumstances/voluntariness test was ruled insufficient in Miranda, so 3501 cant reinstate it here. iii.Rehnquist holds Paul Cassells proposed techniques insufficient iv.Miranda easier to follow than voluntariness Why is Miranda constitutional? i. Language of the original opinion uses constitutionally-divined language ii.Stare decisis 60 plus cases 1. States have applied Miranda, wouldnt have to if it wasnt CON iii.Prophylactic to protect suspects from anything that would be unconstitutional iv.Miranda invited the legislature to apply its principles in whatever method they preferred v.Exceptions illustrate the principle that Miranda, like other constitutional rules, is immutable. Subject to exceptions. vi.Congress cannot overturn the Supreme Courts interpretation of the constitution. Conflict i. Rehnquist took the position that Miranda was prophylactic in Michigan v. Tucker (1974) 1. Now changed his stance Dissent (Scalia) i. Majority justices have previously stated that a violation of Miranda is not a violation of the Constitution. 1. Davis . U.S. (1984); Duckworth v. Eagan (1989); Oregon v. Elstad (1985); N.Y. v. Quarles (1984) ii.This case indicates that statutes of Congress can be disregarded, not only what they prescribe violates the CON, but when what they prescribe contradicts a decision of the Court that announced a Constitutional rule.

iii.No reason for the Court to prevent foolish or prudent statements (rather

than compelled) confessions. 1. There is a difference between a confession per se and a compelled confession a. And the majority thinks that everything is compelled...preposterous says Scalia iv.Miranda is a prophylactic rule that goes beyond the right against selfincrimination. v.A departure from stare decisis is justified when, as here, the Court has a special justification. That criterion is more than met here. 8. Missouri v. Siebert a. Facts: i. Police had adopted a method to circumvent Miranda. Would interrogate w/o warning, get a confession, and then Mirandize and get a second confession. b. Holding: i. The second confession excluded as fruit of the poisonous tree? 9. U.S. v. Patane (2004) a. Facts: i. D arrested at home for calling gf in violation of restraining order. Began reading D his rights, he told them he knew his rights, so officers stopped reading them, at which point D told police he had a gun in his house. ii.Searched the house w/his permission, found gun, arrested for felon w/weapon. b. Holding (Plurality):
i. Physical evidence obtained from un-Mirandized statements, as long as those statement were not forced by police, were constitutionally admissible. 1. (no fruit of the poisonous tree for un-Mirandized Statements ii.Miranda warnings were merely intended to prevent violations of the Constitution, and that because Patane's un-Mirandized testimony was not admitted at trial the Constitution (specifically the Fifth Amendment's protection against selfincrimination) had not been violated. (good faith) 1. No exclusionary b/c there is no violation of 5th Amendment

c. Concurrence (Kennedy, OConnor) i. Physical evidence was constitutionally admissible 1. Expressed the understanding that the Miranda warnings must be accommodated to other objectives of the criminal justice system d. Dissent (Souter) i. Not applying fruit of the poisonous tree doctrine here creates an incentive for the police to omit Miranda warnings before custodial interrogation. e. Dissent (Breyer) i. Would exclude physical evidence derived from unwarned questioning unless the failure to provide Miranda was in good faith would therefore remand the case. f. What about Hubbell and Fischer i. Even if you dont give up the papers, g. Implications i. Will Patane be extended to justify the truth of a statement that can be corroborated by other sources?

ii.Does it invite police to violate Miranda?

1. Yes. Of course it does. h. Authentication? i. Police must authenticate evidence 10. Chavez v. Martinez (2003) a. Facts: i. Police shot Martinez while arresting him, and they came to the hospital to interrogate him. ii.Civil case under 42 U.S.C. 1983; P had been questioned by police @ emergency room of hospital w/o Miranda. 1. Claimed this interrogation was a violation of his constitutional rights. b. Holding: i. No 5th A violation because Martinezs statements were never used against him in a criminal case. ii.Violation of 5th A occurs when prosecution offers the arrestees statement as his or her trial c. Concurrence (Breyer, Souter) i. This is outside the 5th Amendments core, 11. ii.Miranda and Voluntariness 1. Colorado v. Connolly (1986) a. Facts: i. D was read Miranda, confessed, but said the next day the voices had told him to commit the crime, referencing the voice of God. b. Holding: i. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. ii.Shows the relation between voluntariness and Miranda iii.If not Miranda, what? 1. Kauper, Judicial Examination of the Accused (Miranda substitution proposal) a. That the accused be promptly produced before a magistrate for interrogation b. That the interrogation be supported by the threat that refusal to answer questions of the magistrate will be used against the accused at the trial. 2. Problems? a. Procedurally unfeasible b. Smashes the shit out of 5th A right c. Too much discretion to magistrates (see their approval rates for search warrants, arrest warrants) d. Scope of Miranda i. What is Custody? 1. Orozco v. Texas (1969) a. Holding: i. Miranda applies to questioning of suspect in his bedroom at 4am by four police. 2. Estelle v. Smith (1981) a. Holding: i. Miranda applies to psychiatric examination of the defendant by state psychiatrist 3. Oregon v. Mathiason (1977); California v. Beheler (1983)

a. Holding: i. In both cases, Miranda did not apply to Ds who voluntarily went to station houses, were not under arrest, and gave confessions there. 4. Beckwith v. U.S. (1976) a. Holding: i. Miranda is not applicable when an investigation has focused on a suspect but the police have not made an arrest. ii.Defendant was in the house with IRS agents getting interviewed. He was not under arrest. They asked him questions at his kitchen table after he got dressed. This was not custody. 5. Berkemer v. McCarty (1984) a. Facts: i. Police pulled over vehicle after watching suspect weave for two miles. Had suspect get out of the vehicle, noticed suspect had trouble. Had him take field sobriety, during which, after questioned, D admitted he had consumed 2 beers and smoked marijuana. Was then formally under arrest b. Holding: i. Custody depends on whether a reasonable person would have understood that they were in custody, or felt that they were free to leave. ii.The facts do not amount to custody for Miranda purposes: 1. Detention of a motorist pursuant to a traffic stop is presumptively temporary and brief 2. Circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police iii.Usual traffic stop is more analogous to a Terry stop than to a formal arrest 1. So this is a brief Terry detention, under which no Miranda requirement. iv.Once arrested, Miranda applies, no matter how minor the crime 1. But Terry stops do not implicate Miranda c. Critique i. A great many encounters between police officers and citizens begin with a Terry stop and ripen into an arrest after the officer obtains incriminating information. 6. Minnesota v. Murphy (1984) a. Facts: i. D on probation, takes mandatory sex treatment program. PO hears that D admitted to treatment counselor that he raped and murdered a teen years before. PO, during a meeting with D, told him what she heard. D got mad, said he felt like calling a lawyer; PO told him that he could deal with that later, but he needed to tell her whats up. D admitted crimes. b. Holding: i. No custody, as there was no formal arrest or restraint on freedom of movement of the degree associated w/formal arrest. ii.Probation interviews do not give the same impression as a police interrogation 1. Custodial arrest thrusts an individual into the unfamiliar atmosphere/interrogation environment...created for no purpose other than to subjugate the individual to the will of his examiner. c. Dissent (Stevens): i. Proposed Stevens Test

1. Whether or not the interrogation had the same purpose or effect as direct questions. 7. Stansbury v. California (1994) a. Facts: i. Police investigating homicide went to Ds home late at night and, when D answered the door, they told him they were investigating a homicide to which D was a potential witness, asked him to go to police station. Made incriminating statements when he got there, and was Mirandized after the statements. b. Holding: i. Intent of officers during an investigation irrelevant; the fact that he was not a suspect, and was instead a witness, has no bearing on the custody determination. ii.Case was remanded for a new custody determination. ii.What is Interrogation? 1. R.I. v. Innis (1980) a. Facts: i. D arrested on suspicion of murder, read Miranda rights. D said he understood and wanted to speak with a lawyer. D then transferred to central station by two patrolmen who were talking in the car. D confessed after patrolmen began talking about the dangers of having a gun on the loose, and then said it would be too bad if a little girl picked it up, and maybe killed herself. b. Holding: i. A conversation between two police officers that elicits an unsolicited criminal response from D does not constitute an interrogation if the police had no such intent or knowledge that it was reasonably likely that their conversation would prompt such a response. ii.Applied here, no intent or knowledge of such a likelihood, therefore no violation. c. Stevens (dissent) i. This gives the police an incentive to ignore a suspects invocation of his rights in order to make continued attempts to extract information from him. ii.If a suspect does not appear to be susceptible to a particular type of psychological pressure, the police are apparently free to exert that pressure on him despite his request for counsel, so long as they are careful not to punctuate their statements with question marks. d. See Ingbow i. appeals to honor are effective 2. Illinois v. Perkins a. Facts: i. An undercover agent was placed in jail where he heard a confession from a suspect. 1. Sham prison escape plot, D demonstrated willingness to shoot prison guard w/past murder. b. Holding: i. Miranda warnings are not required when the suspect is unaware that he is speaking to law enforcement and gives a voluntary statement.

ii.Conversations between suspects and undercover officers are not afforded

Miranda protection here since they are not done in a police-dominated atmosphere where compulsion to confess is present. 1. It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation, argued Kennedy. There was no danger of coercion here. c. See brennan concurrence for GREAT QUOTE p. 855 d. Marshall (dissent) i. The court does not dispute that a custodial interrogation occurred ii.Compulsion by deception was discussed in Miranda 1. Berkemer, Moran? iii.Because the suspects ability to select people with whom he can confide is completely within their control, police have an opportunity to exploit the suspects vulnerability. e. Different than Massiah (TALKING ABT A DIFFERENT CRIME) i. In Massiah, conversing with a co-D who had turned states evidence after indictment was interpreted under the 6th Amendment ii.This, however, is under 5th A, not involved w/right to counsel. iii.Why doesnt the right to counsel attach? 3. Arizona v. Fulminante (1991) (DIFFERENT CRIME) a. Facts: i. D, while incarcerated, made friends with an FBI informant masquerading as an organized crime figure. ii.D subjected to threats of assaults while inside, informant offered to protect him if he confessed to the murder. b. Holding: i. Confession was involuntary and hence inadmissible. 4. Trickery and Miranda a. Trickery is permissible in two settings i. Perkins 1. Police use deceptive tactics to avoid Mirandas restrictions 2. Police may mislead the suspect in an effort to induce him to wave is Miranda rights. 5. Pennsylvania v. Muniz (1990) a. Facts: i. D arrested for drunk driving, taken to police station where he was asked Qs by the police officer doing intake paperwork. b. Holding: i. Routine booking questions exempt from Mirandas coverage questions 1. to secure the biographical data necessary to create booking/pretrial services e. Miranda waiver and invocation i. Warnings 1. California v. Prysock (1981) a. Holding: i. Court upheld a conviction where the warnings given to defendant did not expressly state that an attorney would be made available prior to interrogation. 2. Duckworth v. Eagan (1989) a. Facts:

i. See p. 860, police inserted We have no way of giving you a lawyer, but one will be appointed to you, if you wish, if and when you go to court... b. Holding: i. if and when language accurately described Indiana procedure. c. Dissent: i. Suspect might construe warnings as providing right to counsel before questioning only to those who can afford to pay. 1. if and when caveat misleading ii.Invocations 1. Miranda a. if, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police cannot question him. 2. Michigan v. Mosely (1975) a. Facts: i. Mosley was arrested in connection w/certain robberies, Mirandized, briefly interrogated, invoked right to remain silent. ii.Some time later a different police officer interrogated Mosely about a homicide. He advised Mosey of his rights, obtained a waiver, and secured incriminating information.. b. Holding: i. No violation of Miranda. ii.The Miranda opinion can[not] sensibly be read to constitute a per se prescription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent. 1. ...the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut of questioning was scrupulously honored. iii.Moselys right to cut of questioning was fully respected in this case. c. Difference w/Westover v. U.S. (companion to Miranda) i. In Westover, police interrogated suspect through the night w/o any advisory warnings and through to the next morning about local robberies. At noon, FBI took over, advised him of his rights, and proceeded to discuss separate robberies in CA. 1. Court found that the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation ii.Here, police gave full Miranda before each interrogation, brief questioning, suspended questioning for a significant period, discussed different crimes. 1. The cardinal fact of Westover, the failure of police officers to give any warning before intense and prolonged interrogation, was simply not present. 3. Edwards v. Arizona (1981) a. Facts: i. D was Mirandized at the police station post-arrest, and was told another suspect implicated him. Gave a taped statement giving an alibi. 1. Then said lets make a deal. Officer said he wanted a statement, but did not have the authority to negotiate a deal. Gave him # of county attorney. D called, hung up, said I want an atty before making a deal.

ii.Next day told detectives wanted to talk, refused, was told he had to talk to

them. They Mirandized him. He said he was willing to talk, but wanted to hear co-Ds confession. They played it, and he implicated himself. b. Holding: i. When a suspect in custody invokes his Miranda right through counsel, the police cannot initiate further questioning. 1. D, having exercised his right on the 19th to have counsel present during interrogation, did not validly waive the right on the 20th.
iii.initiate 1. see R.I. v. Innis 2. Oregon v. Bradshaw (1983)

a. Facts:
i. D arrested for murder, questioned, invoked right to attorney. On way to

jail, asked Well what is going to happen to me now? Officer reminded him about Miranda, and D said he understood. Conversation follows where officer suggests polygraph. D agrees, next day is Mirandized and takes polygraph. Ends up admitting guilt. b. Holding: i. The respondent initiated further questioning. His statement evinced a willingness and a desire for a generalized discussion about the investigation. 1. Also, they reminded him of his right, and he said he understood. c. Dissent (Marshall) i. Accuseds inquiry must demonstrate a desire to discuss the subject matter of the criminal investigation. 1. Ds only desire was to find out the place the police were going to take him. iv.Clarity of request 1. Davis v. U.S. (1994) a. Holding: i. The suspect must unambiguously request counsel sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. 1. If not, officers have no obligation to stop questioning the suspect. 2. Smith v. Illinois (1984) a. Holding: i. an accuseds responses to further interrogation after a request for counsel may not be used to cast retrospective doubt on the questioning of the initial request itself. 3. Connecticut v. Barrett (1987) a. Holding: i. Refusal to make a written statement without counsel present does not amount to a generalized assertion of counsel sufficient to invoke the application of Edwards. 4. Fare v. Michael C (1979) a. Holding: i. Request to speak with probation officer, and subsequent explanation of the right to speak with an attorney, did not violate Miranda. 1. Attys play a special role, Miranda not adequately invoked. 5. Arizona v. Roberson (1988) a. Holding:

i. Affirmation of Edwards. Distinguished from Mosley b/c Mosley was an

invocation of right to remain silent, not right to counsel.

6. Minnik v. Mississippi (1990)

a. Holding: i. When suspect invokes the right to counsel and is allowed to consult with counsel, subsequent interrogations violate Edwards. b. Dissent (Scalia): i. prophylaxis built upon prophylaxis, producing a fairyland castle of imagined Constitutional restrictions upon law enforcement. f. Waivers without Invocations i. Heavy burden to demonstrate waiver has been lessened 1. North Carolina v. Butler (1979) a. Holding: i. I will talk to you but I am not signing any form, after reading advise of rights form, is a waiver. 1. Inference is that he thought only statements could be used against him. ii.Saying im not going to answer your questions is not a waiver of rights 2. Colorado v. Spring (1987) a. Holding: i. ...the Court has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is trickery sufficient to invalidate a suspects waiver of Miranda rights. 1. Waiver was valid even though D was not apprised of every alleged crime with respect to which the police intended to interrogate him. ii.State need only prove waiver by a preponderance of the evidence. 3. Moran v. Burbine (1986) a. Facts: i. Burbine had a lawyer, another PD called police and said are you gonna question him? They say no, but do so anyways. Burbine, who didnt know he had a lawyer, didnt ask to speak to one, waived, and incriminated himself. b. Holding: i. Police were not required to inform suspect about his attempts to contact him. 1. This did not violate Zerbst/Miranda as the waiver was made voluntarily, knowingly, and intelligently. ii.Majority stated that this troubled the conscience, but did not raise to the level of shocks the conscience that signals a violation of 14th A DPC. 1. Admitted that the polices actions were deliberate or reckless. iii.Miranda = prophylactic, not a constitutional right. c. Dissent (Stevens) i. Supposed to be a high burden on police when alleging waiver. ii.Miranda states that police cant trick suspect, but now they can diceive through omission. iii.Attorney acts as clients agent, so the deception of the atty is equivalent to deception of the client. iv.Also, DPC violation, this shocks the conscience. Fundamental fairness. 4. See Miller v. Fenton (3rd Cir. 1986) a. See p. 883-4, new method of police deception i. they are the suspects friend.

ii.Mirandas Effect

1. Police now have to sweet-talk D instead of using stronger methods of coercion. 2. Lower Courts determination of coercion is troubling a. Professor Leos Study (p. 888) i. Using a broad definition of coercion, found that in only 4 of 182 cases was there anything that rose to that level. 1. [P]olice have successfully adapted their practices to the legal requirements of Miranda by using conditioning, deemphasizing [guilt], and persuasive strategies to orchestrate consent to custodial questioning. a. Also, police see Miranda as a legitimizing symbol. 3. Professor Cassel (p. 889) a. Miranda has had a noticeable effect on all the FBI index crimes except murder and rape i. But, criticized widely b/c this is impossible to calculate 4. Critics and Defenders of Miranda disagree w/ Cassell a. They say Miranda does not have a huge impact. 5. Professor Schulhofer (p. 890) a. Even if Miranda has little impact, we must defend it. i. The symbolic purpose is not irrelevant ii.It is a great leap forward to substitute psychological ploys for physical abuse iii.If Miranda were overruled, the road back to physical abuse is cleared of its hurdle. 12. 6th Amendment Revisited a. wtf i. wtf 1. Brewer v. Williams (1977) a. Facts: i. Car ride post-arrest, suspect had invoked his right to counsel a number of times but was still tricked into a conversation; good Christian burial. ii.Williams had been arraigned before this car ride b. Holding: i. Court looked to 6th Amendment right to counsel to find his rights had been violated. 1. See Massiah, once adversarial proceedings have commenced against an individual, e has the right to legal representation when the government interrogates him. a. Once the right to counsel attaches, it is important for the lawyer to be present for all important proceedings to be effective. Custodial interrogation is one of those times. ii.While you could argue he waived his right to remain silent by talking, nothing he did or said could be interpreted as having waived his right to counsel. He consistently requested counsel at every stage. c. Brewer and Miranda i. The adversarial process must be initiated before the 6th Amendment rights discussed in Massiah/Brewer come into play, and custody is not directly relevant to the analysis. ii.The 5th Amendment rights discussed in Miranda, by contrast, are relevant only at the point of custodial interrogation, and the initation of formal proceedings is irrelevant.

2.

3.

4.

5.

d. Custody? i. Yes e. Interrogation i. U.S. v. Henry (1980) a. Facts: i. An informant was planted in a cell with Henry, who had previously been indicted. Informant initiated conversations w/Henry, who made incriminating statements. b. Holding: i. This violated 6th A rights. Once formal proceedings begun, the govt may not deliberately elicit information from a suspect w/o first obtaining a waiver of rights. 1. This signifies that Massiah had avoided Escobedo 2. Suggests that merely planting an informant, even if passive, violates 6th A by intentionally creating a situation likely to induce Henry to make incriminations without the assistance of counsel. Kuhlmann v. Wilson (1986) a. Facts: i. D placed in cell w/police informant. b. Holding: i. A defendants volunteered statements to a police agent were admissible in evidence because the police were not required to prevent talkative Ds from making incriminating statements. 1. Primary concern of Massiah line is secret interrogations... a. D must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. c. Dissent (Brennan) i. The state intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel. d. Why not Innis? Maine v. Moulton (1985) a. Holding: i. Deliberate elicitation of statements through a co-D extends to cases where non-cooperating defendant talks to D who has turned state. But, any information obtained may be used in the prosecution of those offenses for which an indictment had not been returned at the time the incriminating statements had been made. b. Compare w/ Arizona v. Roberson i. Edwards was violated where the police interrogated suspect with respect to one crime if suspect has already invoked Miranda with respect to some other charge. Texas v. Cobb () a. Facts: i. D indicted for burglary, received a lawyer, denied charges. Year or so later, Cobb told his father he had killed the woman and child, father disclosed info to police. b. Holding:

i. No 6th A violation, 6th A right is offense specific ii.6th A applies to the particular crime or crimes with which the D is charged

and other crimes that are the same offense 1. same offense a. Blockburger Test i. Each one must have an element separate from the other. iii.Clearly exploitable 1. Police could interrogate re: 2/6, let 6. Montejo 129 S.Ct. 2879 or 2679 a. 6th A is limited to the particular charge or same offense? b. Overrules Michigan v. Jackson i. Blurring distinction between 5th and 6th As ii.Said if you want lawyer under 6th, cant be questioned about any crime c. NOT ON EXAM th 7. 5 v. 6th a. The adversarial process must be initiated before the 6th Amendment rights discussed in Massiah/Brewer come into play, and custody is not directly relevant to the analysis. i. Police violate 6th if they try to obtain information 1. Under 6th, police aught not even try. 2. But now, with undercovers in jail, they cant try, they can only listen (Kuhlman b. The 5th Amendment rights discussed in Miranda, by contrast, are relevant only at the point of custodial interrogation, and the initation of formal proceedings is irrelevant. i. Police can try under 5th, so long as they have no reason to believe he wont respond.