DUE PROCESS DEFINING DUE PROCESS: (1) DP as Rule of Law: Goals are regularity and evenhandedness in admin of justice,

, accountability in use of govt power. Constraint on arbitrariness. o Hurtado v. CA: Absence of grand jury NOT necessarily violation of due process; due process is rule of law, must be legal, pertain to everyone. 5th Amendment does not provide guarantee of indictment in all criminal cases. Therefore, when D has access to counsel, right to cross-examine witnesses, etc., is enough to satisfy due process of law. (2) DP as Bill of Rights: List of protections in the Bill of Rights; no unifying principle. o o From the dissent in Hurtado. INCORPORATION o Duncan v. Louisiana: LA had a provision that only required a jury trial in capital punishment cases. Ct says he gets a jury trial. Shift from standards to bright-line rules. Not an accurate procedures case bc the ct doesnt want to get in the business of regulating discrimination. o o Baldwin v. NY: Anything over 6 months should get a jury trial. Downsides to the B/R approach: Did not contemplate our current system Can be inflexible and limiting, put you in a straitjacket Race is still an issue; B/R doesnt address this head-on. Broad Race-Based Injustice:

(3) DP as Accurate Procedures: Focus on keeping innocent people from being convicted. Race-based cases: Overturning convictions of black Ds where the proceedings seemed racially rigged based a certain issue, such as involuntary confessions, mob-dominated trial, etc. o Rather than addressing the issues of a case, look for abuse of, or disregard for procedures.

(4) DP as Fundamental Fairness: Does it shock the conscious? o o Still not sure what this is, but you know it when you see it. Rochin v. CA: Cops pumped Ds stomach; ct felt it was reconciling feelings of fairness in society and the law.

Residual Due Process Clause: Very little left of due process in criminal cases apart from the B/R.

Competency to Stand Trial: o Medina v. CA: Who bears the burden of establishing Ds competency to stand trial? If you make D establish it by clear and convincing evidence, you are effectively already trying him. o Preponderance of the evidence means more probable than not. Clear and convincing means highly probable.

Cooper v. OK: Clear and convincing proof of incompetence is too high a burden. Balancing vs. B/R Which gives you more due process protections? D has best access to info; But dont want D to fake incompetence.

Hamdi v. Rumsfeld: Does a detained enemy combatant who is a US citizen get DP protections? Or is B/R more appropriate here? o Ct here uses a hybrid of the Mathews v. Eldridge balancing test. Suggests that DP could possibly move to interest balancing rather than B/R.

RISE AND FALL OF BOYD: When the intersection of personal privacy and property privacy were closely intertwined, 4th & 5th Amendments were treated together, in tandem. Boyd v. US: (Didnt pay the import duties, US subpoenaed invoice. Statute provided if he doesnt produce it, assume its a confession.) Order to produce is a 4th amendment violation; 5th amendment right is violated bc he is being forced to incriminate himself by turning over this material. 4th amendment claim: Must be a search and/or seizure; must have been unreasonable. 5th amendment claim: Is this a criminal case? Notice that the ct is treating the 4th claim is not a classic search, but ct is treating it functionally as such; and with the 5th, the ct is treating the action functionally as a criminal action. o Treating them as running together, to get in the ambit of protecting some sort of property/privacy interest. Govt shouldnt be able to take property unless they or someone else have a greater interest in it. Privacies of life also being protected.

Miller agreed w/5th amend arg, but not that production of the docs was search/seizure.

This was the state of the law; much different now. What is interesting about Boyd is that some of its language sows the seeds of its destruction.
Gouled v. US Applied Boyd to a S&S pursuant to a valid search warrant. The court declined to provide protection under the mere evidence rule. o Ct said that you cant turn a person against themselves using similar evidence seized to prosecute o . Mere evidence rule govt can search for that which is evidence of a crime; D does not have to produce it and therefore is not acting as a witness against himself. o o o o Hale v. Hinkle Corporations do not have 5th amendment privileges. Knocks out 1 of Boyds problems Shapiro Ct developed the required documents jurisprudence If you are required to keep certain records, you cannot claim privilege in not turning them over o o Marron - allowed govt to seize instrumentalities of crime, including papers Balance btwn individual rights and interests and societal rights and interests. We speak about these rights in absolute terms, but the law is always changing, etc. o o o o SUMMARY: Boyd grounded DP protections in notions of property. Fruits or instrumentalities of a crime, illegal goods, the gov has more of a right to them. Boyd, in some respects, contained the seeds to its own destruction; the government really wanted to regulate property. o The Boyd regime does not work, if there are other certain needs that you need to accommodate; nonetheless, it was a significant case. SCHMERBER v. CALIFORNIA: Guy smelled and acted like he had been drinking; therefore there was probable cause that he had been drinking. He had also been driving. Driver is taken to the hospital, cop asks for a blood sample, etc. He is convicted of DWI based on the evidence derived from taking of his blood. *Gouled was overturned by Hayden

Overriding claim is due process, 4th, 5th amendment claims Ct says that 5th amendment only applies to your own testimony giving blood was not testimonial.

Ct says that the taking of the blood was a 4th amendment search. There was probable cause to seize/arrest him 4th only protects things.

Whereas in Boyd, the 4th and 5th claims were intertwined to create a protected zone, they are separated in schmerber.

4th amend protects against unwarranted intrusion. There is a shift away here from substantive protection to procedural protection. The subtext of this is the war on crime. Govt has the burden of proof. Yes you have these rights, but they are a matter of degree, and there are going to be times when the govt is justified in searching and seizing.

Generally, a reasonable search and seizure is one that is pursuant to a warrant issued by a magistrate w/ probable cause, etc. in order to be reasonable.

Schmerber creates an Exigent Circumstances exception to this. One form of such circumstances is destruction of evidence. This is a further dismantling of the doctrine in Boyd, due to other societal interests. How do we balance these interests?

Warden v. Hayden: Undermining Boyd and its progeny, Goulad This is a classic case of mere evidence, following Goulad. Schmerber is also a classic mere evidence case, but the issue was just not presented. If there was any doubt about the separation of the 4th and 5th, Hayden confirms it here the only purpose that they were using the clothing for evidence to convict him.

We see again here the following interests: Procedural evidence Balancing societal interests Fleeing suspect is another example of exigent circumstances. This case OVERRULES the mere evidence holding in Goulad. Berger v. NY: Wiretapping case - Strikes NY statute down bc it is procedurally unconstitutional the govt can get this info, provided that it does it correctly.

Ct then goes on to tell the states how to do it.

Dismantling Boyd emphasis on procedure underlines the fact that your rights are not absolute. Govt can get this info.

Boyd has thus been almost wiped off the map. The content of the invoice was protected. But is gov subpoenaing a doc you prepared like compelling you to create evidence?

No; while the act of producing does have testimonial aspects, Testimonial aspects of producing documents: they exist possessed them authenticating them From the last of the Boyd cases, we see that one thing the 4th does is protect individual privacy. It also regulates police/governmental conduct, acting as a sort of tort law for cops.

1949 ct applies the 4th amendment to the states via Wolf v. Colorado, but says that in terms of what remedy is given, it is up to the individual states.

Mapp v. Ohio: (pg. 340) decided in 1961, merely 12 years after Wolff. Lewd books, search w/o a warrant.

Issue: What remedy do we use? We ought to apply the exclusionary rule in states too. 3 reasons why: Silver platter doctrine disparity btwn fed and state rules encourages state police to go in, get evidence, then turn it over to the feds.

However, this is bogus, bc Elkins and wrenria (sp?) already addressed this issue. Judicial integrity HYPO: Cops go into Mapps house and find 2 bags of heroine. Bc the entry is illegal, drugs are suppressed bc violation of 4th amendment right. At trial, Mapp gets on witness stand, is asked about drugs in her house, and she says no. The jury are the only ppl who dont know the truth. Is this judicial integrity?

Court has made an exception here via Havens can use the drugs to impeach. How is this judicial integrity?

Does the fact of the exclusionary rule cause police officers to lie? Does it cause judges to be influenced by the fact that the cops did find something bad and therefore find the search valid?

Docking pay or something like that might end up in cops being overly cautious in searches, letting guilty ppl go free.

Also, exclusionary rule does nothing unless you arrest and prosecute the person, bc otherwise there is nothing to exclude.

The 4th amendment also applies to searches, seiezures, and the manner in which they are carried out.

So, the remedy would be tort? Not going to be easy Practical issues: What damages are you likely to get, especially if you arent an attractive plaintiff?

Legal issues: Also, there are issues like qualified immunity, trying to sue state in federal ct, etc. (more examples in reading.)

So, the exclusionary rule may indeed be best, bc it deters, but it doesnt deter too much. Also, Criminal prosecution is only used in the most egregious of cases in the first place. Deterrence Idea that it will deter police officers; plus, the only thing that happens is evidence is excluded.

We will find in future cases that this is the primary judicial reason used to support the exclusionary rule.

Note: LA v. Lyons Injunction denied in keeping cops from using a chokehold. Ct doesnt want to get into the business of regulating cops/applying remedies to things that have not occurred.

**************************************************** FOURTH AMENDMENT (Search and Seizure) STEP (1): Does the 4th even apply? (i.e. is the govt intrusion a search or seizure?) (A) Is the conduct in question governmental? Is the actor public or private? o o If public, 4th will generally apply. If private, are they acting as an instrument of the state? Are they acting at the direction of a govt agent, or pursuant to an official policy? What degree of govt encouragement, knowledge, or acquiescence? Private actors underlying purpose/interest? (i.e. promoting personal/business objectives, or govt ones?) NOTE: Security guards are only treated as govt actors when they go beyond protection of their employers interests, to take on a quasi-law enforcement function. (B) Is the conduct (1) an intrusion (i.e. search) into an area in which (2) ppl may reasonably expect privacy? Does the intrusion constitute a search? o 4th amend protects people, not places; applicability derives from intrusion into concept of privacy, not solely physical intrusions. o o o Katz v. US: Public phone booth; broadens the idea of what can be construed as a search. Did not offer a coherent theory of privacy. Ct has ended up treating it like common law, on a case by case basis. The Katz test has been construed narrowly. (CA v. Greenwood) Needs to be balanced w/ polices ability to collect criminals. (A) Did the person manifest a subjective expectation of privacy? (B) Does society accept this expectation as objectively reasonable? KNOWING EXPOSURE: No reasonable expectation of privacy where a person knowingly exposes [something] to the public, even in his own home or office (Katz). (Basically, risk of exposure = knowingly exposed). This includes: Conveying information to 3rd parties, even in an apparently private conversation. US v. White: Bugging a person in a drug deal. However, these cases have been made obsolete by legislation. In NJ, cant get someones phone stuff just bc they gave it to the company. Conveying information to bank or phone company in course of business.

Is there a reasonable expectation of privacy?

(State v. Hunt) Leaving your garbage out on the curb to be collected. (Greenwood) In NJ, going into someones trash w/o a warrant violates state law. (State v. Hemple) A persons external physical attributes, including handwriting, fingerprints, sound of their voice. o This excludes attributes not on public display, whose examination requires bodily intrusion. (Schmerber) OPEN FIELDS DOCTRINE: Decreasing expectation of privacy as you go from home, to curtilage, to open fields. Cops can enter open fields, but NOT the curtilage or home. Even if signs are posted, trespassing on open fields is NOT considered a search. (Oliver v. US) Ppl dont pay attention to trespassing signs, so why should cops need to? This means cops can go in the common hallway in an apt building, or sit just outside the curtilage of a home. o Note the distributive tilt of the 4th amend protections here. Proximity of the area to the home; Whether area is included in enclosure surrounding the home; Nature of the use of the area (i.e. is it used for intimate activities?); Have steps been taken by resident to protect the area. 4 factor test for deciding if you are in open fields (US v. Dunn):

However, govt still may NOT enter structures, even though they are outside the curtilage.

AERIAL SURVEILLANCE: Naked-eye observation of curtilage areas, even if enclosed, are NOT searches, so long as they are from lawful vantage points. CA v. Ciraolo: Plane flying 1,000 ft over curtilage is NOT a search. Fl v. Riley: Helicopter flying 400 ft over curtilage NOT a search. NOTE: In these two cases, the flights in question were (1) w/in legal parameters, including FAA; (2) were naked-eye observations; (3) did not interfere w/ normal use of curtilage by way of undue noise, wind, dust, or threat of injury; and (4) did not reveal any intimate details connected w/ Ds use of his home.

TACTILE vs. VISUAL OBSERVATION: More protections against tactile observation than visual, bc physical inspections are more intrusive than visual ones. Bond v. US: An agent squeezing the contents of bus passengers bag WAS a search

ENHANCEMENT DEVICES: Where the device merely enhances sensory perception and facilitates surveillance that WOULD still be possible w/o the enhancement, the 4th amend is NOT implicated. (i.e. cameras, videos, flashlights, aerial cameras, drug dogs, and field tests for narcotics.) DOG SNIFFS: Ok depending on the place. US v. Place: Drug dog sniffing bags at a public airport is NOT a search. Illinois v. Caballes: Drug dog sniffing the exterior of a car stopped on public road was NOT a search. TRACKING DEVICES: Ok so long as it doesnt go into the home. US v. Knox: Tracking beeper on car NOT a search, bc it only disclosed what someone could have seen from the street. o NOTE: This issue is being revisited in US v. Jones. US v. Karo: Tracking beeper on chloroform drum, which ended up in a house. Ct held that this WAS a search bc govt was able to learn something about the inside of the house that otherwise would have required a physical intrusion. HIGH-TECH SNOOPING IN HOME: Kyllo v. US: Thermal imaging a house to see if weed is being grown. Ct held that this surveillance WAS a search, drawing a firm line at the entrance to the house. o o Does the device provide govt w/ evidence they wouldnt otherwise have access to? Is the device in general public use? NOTE: Is this a workable standard? What about a telescope? MISC. SHELTERED AREAS (in addition to the home): Public telephone booth (Katz) Administrator has a reasonable expectation of privacy in his office at a state hospital. (OConnor v. Ortega) Public school student has a reasonable expectation that her purse will not be searched by an administrator. (NJ v. TLO)

Is there a seizure? Three part test as to when seizures occur: o (1) A person is seized if a reasonable person in his or her circumstances would not feel free to terminate the encounter. FL v. Bostick; US v. Drayton: Both cases are bus stop seizures that found drugs, where D consented to the search.

Would a reasonable person in the circumstances feel that they can refuse the search?

US v. Mendenhall: Four factors used to determine what a reasonable person would believe: o o o o Threatening presence of several police officers; Display of a weapon by a police officer; Some physical touching of the person; Use of language or tone of voice indicating that compliance may be compelled. Other things to think about in considering the reasonable person: o o o o Race Bus stations Airports Post 9/11 America

(2) A person is only seized when they are stopped by means intentionally applied. Intent of police IS material. Brower v. County of Inyo: Cops set up a roadblock just around a bend, so they could stop a specific person. A 4th Amendment seizure does not occur whenever there is a governmentally caused termination of an individuals freedom of movement (the innocent passerby pinned to the wall), nor even whenever there is a governmentally caused and governmentally desired termination of an individuals freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied NOTE: If you are stopped in a car, not only are you seized, but your passengers are also seized.

(3) A seizure requires either application of physical force of constraint, OR, where the latter is absent, submission to assertion of authority. CA v. Hodari D.: Guy tossed drugs right before cops tackled him. Ct said that bc there was not yet any physical force or submission to authority, the drugs were NOT the product of a seizure, bc the guy abandoned them.
th

NOTE: This is NOT the law in NJ (State v. Tucker)

STEP 2: What does the 4 amend require? (Doctrine of Justification)

**************************************************** WARRANTS: Questions: o o o (1) Does the 4th amendment apply? (2) What level of suspicion is required? (3) Was the search reasonable?

Warrants are issued by neutral magistrates based on probable cause. Means that to make it reasonable, cops have to put their story out there before searching. o After the fact determinations might be biased bc of any evidence seized. o NOTE: This means that the problem with the exclusionary rule is that the ct knows the cops had it right. Can challenge warrants if there was: Reckless disregard for the truth or false statements made; However, negligent or innocent falsehoods in an affidavit will NOT Invalidate a warrant. What the officer knows at the time of application must be disclosed then, cannot add it in later, or at the motion to suppress; No neutral magistrate: Attorney general cannot sign the warrant, bc he is not a neutral decisionmaker. (Coolidge v. New Hampshire) However, clerks w/o law degrees issuing warrants was held permissible. (Shadwick v. City of Tampa)

Particularity Requirement: Must set forth the place to be searched and the items to be seized with enough particularity that an officer with reasonable effort could ascertain and identify the place intended. You must note the person/things to be seized and where they are. o Rationales for the Particularity Requirement: o Limits the scope of searches, both spatially and temporally. Supports the Probable Cause requirement: If the cops cant tell you these things, maybe they dont have probable cause. Ensures that ppl are not wrongfully deprived of their property. Maryland v. Garrison: Warrant applied to the entire 4th floor of a building, cops walked into the wrong apartment. If the cops failure to recognize that the warrant is overbroad is objectively reasonable, then the search is still good.

Staleness of Search Warrants: Because items are so readily transportable, the timeliness of

information is more important in the case of search warrants than for arrest warrants. o Conditional Anticipatory Warrants: In order to comply w/ 4th amendment probable cause, two prerequisites must be satisfied: (US v. Grubbs delivery of child porn took place after warrant.) (1) If the triggering condition occurs, there must be a fair probability that evidence of a crime will be found; and (2) There is probable cause to believe that the triggering condition will occur.

EXECUTION OF WARRANTS: Was the search reasonable? Knock and Announce Rule: o o Cops must K&A before entering premises. (Wilson v. Arkansas) Dont need to comply with K&A if you have reasonable suspicion that it would be futile, dangerous, or there would be destruction of the evidence. (Wisconsin v. Richards) o A judge can authorize a no-knock warrant if cops set forth facts in the affidavit to support it. (i.e. guns in the house.) If cops knock and no one answers, they can still enter, and destroy property in doing do, so long as it is reasonable. (US v. Ramirez) o K&A basically allows an opportunity to let the cops in. One Flush Rule: It is reasonable, in drug dealer circumstances, to wait only 15-20 seconds before going in. (US v. Banks) o Just need reasonable suspicion that evidence is going to be disposed of. Ct does not want a rigid rule; gives trial courts lots of discretion in dispensing w/ K&A. Hudson v. Michigan: Once you say that 4th requires K&A, if you dont do it, its a violation of the 4th.
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But what is the remedy? Exclusionary rule does NOT apply to violations in the execution of a warrant!

Dealing with 3 parties in Executing Warrants: o Cops can detain people they find at the place of the warrant while it is being executed. (Michigan v. Summers) This minimizes risk of harm to cops, occupant leaving in the event something is found, facilitating orderly completion of the search. Muehler v. Mena: What is reasonable in terms of length of detention? If questioning a person does not prolong the detention past the time it takes to complete the search, then the questioning is not an additional seizure. o Wilson v. Layne: Media entering home w/ cops to execute arrest warrant was in

violation of 4th amendment. o Los Angeles v. Rettele: Cops barged in on sleeping couple, held them at gunpoint for a little bit; this was a reasonable search bc the cops needed time to make sure there was no one else in the room who would pose a danger. PROBABLE CAUSE AND WARRANTS: Level of Suspicion Required PROBABLE CAUSE: That quantity of facts and circumstances within the police officers knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (in the case of an arrest) or that specific items related to criminal activity will be found in a certain place (in the case of a search). o Requires specific, concrete facts, not merely conclusory speculations. On a scale of probability, it is something more than a hunch or suspicion, but considerably less than proof beyond a reasonable doubt. o Officers belief that a crime is being committed is NOT enough, nor is it enough for his suspicion to be confirmed. (Nathanson v. US) Probable cause is the substantive requirement, and the warrant is the procedural requirement. o o Unless a case falls into one of the limited exceptions, police must satisfy both. PROBABLE CAUSE and INFORMANTS: Draper v. US: (description of clothes, walks quickly) Detail provided to police by informant was such that probable cause was established. Informant also was reliable. Spinelli v. US: (gambling ring, 2 telephone lines) Here, informant has no track record; ct announces 2-prong test. TWO PRONG TEST: An anonymous tip must reveal o (1) Reliability and Veracity of Informers knowledge; and (2) Basis of the knowledge.

Notice that this test would never allow anonymous tips.

Illinois v. Gates: (flying to florida to get drugs) Anonymous letter, didnt know if tipster was reliable; Cops corroborated some details, but not everything matched. Ct held that alone, the letter would be insufficient, but that corroboration of major points of the letter creates probable cause. Overrules Spinelli test, in favor of a Totality of the Circumstances, which takes into account the 2-prong considerations: To Search, there must be a fair probability that there is evidence of a crime in a certain location. To Arrest, there must be a fair probability that the suspect committed

or was about to commit a crime. This fair probability in light of the totality of the circumstances also is based on the following: Common sense reading by the magistrate; If one of the Spinelli factors is lacking, the other may compensate (Probabilities are not exact, and so do not lend themselves to an exact test); Issues: Does this standard encourage abuse? (i.e. cops manufacturing informants, then pointing out innocent facts and claiming corroboration? o o Is this test just a puppet for reasonableness? Keeping the law of probable cause to a minimum reduces the power of appellate courts. Ornelas v. US: Deference should be given to magistrate/trial judges w/ respect to warrants. If there is no warrant, then the appellate ct reviews it de novo Deference to factfinding by the judge, as well as inferences drawn by both the judge and the cops. Seems to give deference to police more than trial courts, so the impact of this case may be minimal PLAIN VIEW DOCTRINE: Does NOT authorize a search; merely authorizes the seizure of something that was in plain view. Cop must be lawfully in the house in the first place, via warrant or exigent circumstance. Plain view doctrine is generally about seizures, NOT searches. o 3 requirements of plain view: (1) Cops must be lawfully in the position to view the item and gain custody of it. (2) It must be immediately apparent to the cops that the item is subject to seizure. (Probable cause) (Hicks) (3) Inadvertence cops must not be looking for what they stumbled upon. (Rejected in Horton) o NY v. Class: (cop looking for VIN number saw butt of a gun.) Ct said Class had no reasonable expectation of privacy in his cars VIN, which was required by law to be in plain view. o Officer was allowed to seize the gun bc of plain view doctrine. Deference should be given to the trial ct w/ regard to warrants.

Arizona v. Hicks: (guy shot gun through floor, cops came into his apt, shifted stereo to record

serial number) (1) Was this a Search? Taking action unrelated to the objectives of the authorized intrusion, which exposed concealed portions of the apt or its contents, DID produce a new, unjustified invasion of privacy. Moving the stereo was a search, but not writing down the serial #. Ct is drawing a line, possibly based on Mincey exigency was gone by the time they were looking for stereo #s. (2) Was it Reasonable? Probable cause is required to invoke plain view doctrine i.e. incriminating nature of the object must be immediately apparent. o Cant send pills off to lab to be tested, etc.

Horton v. California: (cops have warrant to find 3 rings, proceeds of a robbery, knew that there might be guns there too, but warrant was only for rings) The guns were in plain view, ct rejects the inadvertence requirement.

EXCEPTIONS TO THE WARRANT REQUIREMENT: Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment subject to only a few specifically established and well-delineated exceptions (although this has expanded dramatically in recent years). o Exceptions Requiring Probable Cause: o Exigent Circumstances Search Incident to Arrest Automobile Exception

Exceptions Requiring Reasonable Suspicion: Stop and Frisk Investigative Detentions

EXIGENT CIRCUMSTANCES EXCEPTION: Requires probable cause. o Prerequisites: (1) Police have probable cause to believe items relating to the crime would be found/suspect had committed a crime. (2) Circumstances present sufficiently compelling urgency, making resort to the

warrant process impracticable/risky: (a) Degree of urgency (taking into account time needed to obtain a warrant, including telephonically); (b) Reasonableness of the belief that evidence is being destroyed/about to be destroyed; (c) Possibility of danger to police watching the location; (d) Common behavioral characteristics of ppl involved in the particular type of criminal activity; (e) Indications that suspects are aware that police are on their tail; (f) Whether the emergency arose from the actions of the police themselves. (it CANNOT be of their own making) o o (From US v. Howard)

A warrantless search must end when the exigencies that justified its initiation end. Mincey v. Arizona: (guy shot undercover cop in his apt, subsequent search of apt was pretty intense.) AZ tried to establish an exception to the warrant requirement when murder is involved; ct shot it down. It was ok for the cops to look for other injured ppl in the house and preserve the scene; however, the 4 day search that followed far exceeded the relevant circumstances. 4th amend kicked in when the homicide detectives came to the scene.

Affirmed by Flippo v. West Virginia (ct excluded evidence where cops went into home where murder had taken place and seized photos.)

Fleeing Suspects/Hot Pursuit: Police can follow a suspect inside a house and then lawfully search for him, so long as they have probable cause to believe he is in there; rationale is 4th doesnt require delay where it would endanger cops lives or the lives of others. (Warden v. Hayden cab drivers told cops suspect entered house, cops entered minutes later, searching for suspect, found guns in plain view; ct allowed it.) However, ability to do this depends on the gravity of the offense. (Welsh v. Wisconsin Drunk guy crashed car, walked home; ct held that cops couldnt violate sanctity of home to search for him w/o warrant for such a

minor offense.) o Trivial crime + invasion of home Creating an exception to the exigent circumstances exception to the warrant requirement. Warrantless searches/seizures in a home are presumed unreasonable; burden is on govt to establish exigent circumstances to overcome this. o Destruction of Evidence: Where delay would cause destruction of evidence, escape of suspect, or danger to cops/others. Mendez v. CO: (Cops smelled burning weed outside hotel room.) They were allowed warrantless search bc of substantial likelihood that contraband would continue to be destroyed before they could get a warrant. US v. Dickerson: (Cops w/ a K&A warrant to search Ds home for drugs, were met outside home by D, and commotion ensued. Cops then entered home w/o K&A.) Ct said the ensuing search was good, even w/o K&A, bc ppl inside the home who heard the struggle created an exigent circumstance. Kentucky v. King: (Cops knocked on door, heard noises, which led them to believe that evidence was being destroyed.) Raises the issue of cops acting in bad faith by not getting a warrant. Ct says that if the cops were acting reasonably and not in violation of the 4th amend before the exigency, then it is ok. NOTE: Could this be a test of reasonable suspicion?

COMMUNITY CARETAKING EXCEPTION: o HYPO: Late at night, cop pulls over only car on the road, smells weed. Can he arrest? YES; isnt this the reasonable thing we want cops to do? But does this allow cops to create exigent circumstances for the purpose of avoiding a warrant?

AUTOMOBILE EXCEPTION: Requires probable cause. o Prerequisites: Can subject cars to a warrantless search when: (1) They are stopped on the road (or were stopped); and

(2) There is probable cause to believe that seizable items are present.

Carroll v. US: Cops had probable cause that a bootleggers car had alcohol in it. They stopped it and found lots of booze, warrantless search. Ct creates another exception to the warrant requirement: Police can conduct a warrantless search of a moving car if they have reasonable or probable cause to believe that it is engaged in criminal activity. Rationale: Based in exigency by the time they get the warrant, the car will be gone. (i.e. it isnt reasonably practicable to obtain a warrant.)

Chambers v. Maroney: The automobile exception applies even where the car has been impounded by the police. (Basically, if you could lawfully search it on the road, it was permissible to conduct a delayed search instead delay does not make the search unreasonable, not a greater intrusion.) This shifted the rationale put forth by Carroll now the ct is saying that you categorically have less expectation of privacy in a car. Shifting from a standard to a rule. This includes mobile homes not fixed to the ground. (CA v. Carney) Exigency is no longer a requirement.

CONTAINERS IN CARS: Defining the breadth of the automobile exception search is limited ONLY by the size/nature of the items for which there is probable cause to search. OLD 2-STANDARD RULE: This leads to the idea that if probable cause is based in the container, then Chadwick/Sanders applies; but if probable cause is based in the car itself, then Ross applies. Ct changes this odd 2-standard rule in Acevedo. US v. Chadwick: Cops waited for suspect to enter car, then searched car, as well as footlocker in the trunk; Arkansas v. Sanders: Cops waited for suspect to enter a taxi before stopping the cab and searching his suitcase. o These two cases rejected the idea that the automobile exception applies to luggage. o It doesnt matter if the container is not the kind usually used to transport personal effects. (Robbins v. California Cops stopped a car for erratic driving, and smelled weed; guy was arrested, cops found bricks of weed in plastic wrap in the luggage compartment.)

US v. Ross: (Guy selling drugs out of his trunk, cops searched a paper bag that was in the car w/o a warrant) Ct says that probable cause was based in the car: If there is probable cause to search a car, that search may extend to any part of the car or containers w/in it that may contain the object of the search. o Scope of warrantless search of car NOT defined by nature of container object is secreted in, but rather the nature of object.

CA v. Acevedo: (DEA watched who came to pick up package filled w/ weed; let person drop it off, Acevedo picked it up, put it in trunk of car, drive away, cops arrested him, officers searched car for weed.) Ct said if cops have probable cause to believe that contraband is in the car, they may search anywhere/in any containers in the car where the contraband could be hidden. Should not be restricted if their probable cause doesnt extend to the whole car. Adopted Ross, but went a step further. o Overrules Sanders, but NOT Chadwick; but Prof. thinks that it really overrules them both States may still interpret own constitutions, though o NOTE: Other exceptions may still apply, i.e. inventory search, search incident to arrest. RATIONALES: o No privacy distinction btwn probable cause based in car/probable cause based in container; o o o Cops would search more extensively in Ross situations; Better to adopt a clear-cut rule; Scope of search is still limited if there is probable cause to believe that object is in a suitcase in the trunk, still cant search whole car. COUNTER ARGUMENT: None of this is based in exigency

Points re: scalias originalist view: (1) By not going all the way w/o warrants, suggests that history is not so clear. (2) How do you decide when a warrant is indeed needed?

(3) Purpose of a warrant was originally to give advantage to govt; today it is more of a hurdle to getting evidence admitted, driven by the exclusionary rule (i.e. in favor of D).

Misc Points: With all the exceptions, we may find that the warrant requirement only really need apply to houses and other structures o This was the cts point in Chadwick, but the SC rejected it.

Searches of containers is not justified by exigency What does the rationale that cars = less privacy bc they are so regulated have to do with a warrant? Process v. substance distinction o However, with a warrant, it may be that you do get a probable cause plus, and with an exclusionary rule, you get probable cause less. Plus because of Magistrate hearing. Less because Judge influenced by success of the search.

WHAT IS A CONTAINER? This includes a passengers belongings left in the car, so long as they are capable of concealing the object of the search, and there is probable cause to believe the car contains contraband. Wyoming v. Houghton Syringe found in drivers pocket, passenger left her purse in the car, cops searched it, found drugs. o 2-step test for whether police action was reasonable see Atwater for application. However, probable cause to search the car is NOT probable cause to search the passenger. US v. Di Re Need probable cause to search the passenger.

To whom in the car does probable cause apply? Maryland v. Pringle guys in speeding car all deny ownership of coke found in it. Ct said it was ok to arrest them all. o Ct distinguishes this case from Ybarra v. Illinois (Warrant to search bar/bartender for drugs, ct said cops could NOT search patrons as

well.), in that 3 ppl in a car are more likely to be engaged in common enterprise than 12 ppl in a bar. o However, the issue in Pringle is not about containers

***To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest then decide whether the historical facts, viewed from the standpoint of an objectively reasonable officer, amount to probable cause.***

Basically, the issue amounts to where the container is in the car or on your body? If its on your body, once you get out of the car, Di Re says it CANT be searched.

ARRESTS EXCEPTION Is Privacy more important than Liberty? o As far as constitution is concerned, foremost rule is that custodial arrests must be based on probable cause. Warrantless arrest w/ probable cause outside the home does NOT violate the 4th amend. Three sources for an arrest: o Common law Statutes Constitution

DO YOU NEED A WARRANT? Dont need a warrant to arrest outside of house/in public. (Watson) Do need a warrant to arrest inside house. (Payton) If you want to arrest inside someone elses house, you need a search warrant. (Steagald)

US v. Watson (D arrested in a restaurant, following tipster re: stolen credit cards.) Where warrantless arrest of person takes place in public/outside, and there is probable cause to believe that they have committed a felony, it is reasonable under the 4th. Differences in DURATION btwn arresting someone and searching a house: For warrantless arrest, must be brought before magistrate w/in 48 hours to determine whether arrest met the probable cause standard. (County of Riverside v. McLaughlin)

Can also get out quickly via bail.

For a search, it may be a long time before you can get back into your house/get your items back.

To arrest someone in their home: Payton v. NY: If you have a warrant to arrest someone, cops CAN enter HIS home if you have reason to believe he is there, but only to look for him, NOT to search. Cops only need demonstrate probable cause to the magistrate; the timing is left up to the cops. CANNOT enter a home to make a warrantless arrest, absent exigencies.

To arrest someone who is in someone elses home: Steagald v. US: Arrest warrant allows cops to search for perp in HIS home, but NOT in someone elses home (absent exigency or consent). If you want to arrest X in Ys house, then you need to get a search warrant specifically for Ys house. Otherwise, an arrest warrant would basically allow an innumerable number of searches. o Ys interests are not protected.

This also addresses the likelihood of a mistaken assessment of probable cause X is likely to be in his home at some point, less likely to be at Ys.

Wide authority to arrest, even for minor violations: Cant tie the 4th to all of these state laws, so just look for whether there was probable cause for arrest. (Virginia v. Moore) Atwater v. Lago Vista: (Seatbelt violation by soccer mom, cop arrests her, she argues this is against common law; however TX has law authorizing arrest, D makes historical argument that cant arrest for this.) 4th amendment does not prohibit arrests for misdemeanors; cops have the most discretion in the criminal justice system. 2-Step 4th Amendment Analysis: (Houghton) used bc D made a historical argument, kind of particular to this case. o (1) Look at whether the police search/seizure would have been considered unreasonable/unlawful when 4th was framed; o (2) If this yields nothing, then balance the individuals interests

against the governments interests. (traditional reasonableness standards) In Atwater, no clear answer comes from step 1, so the ct resolves the issue in favor of its bright line rule: o If the cop has probable cause to believe that an individual has committed even a very minor crime in his presence, he may, w/o violating the 4th amend, arrest the offender. Any other scheme here would not be readily administrable for the police. 4th amend does not only cover the arrest itself, but also the manner of the arrest. o i.e. if you dont K&A, its a violation.

Dissent: This runs contrary to the 4th should have a presumption for/against reasonableness, depending on the severity of the crime. Wants specific, articulable facts.

Probable cause is the sole constitutional requirement for an arrest, save when the arrest is conducted in an extraordinary manner, unusually harmful to individuals privacy or physical interests. (Whren v. US) Basically, if there is probable cause, we dont second-guess the officers motivations.

Arresting and detaining someone as a material witness is not unreasonable, where it was unlikely that they would respond to a subpoena. (US v. Awadallah)

SEARCHES INCIDENT TO ARREST: o Requirements: (1) Underlying arrest must be lawful, i.e either; (a) Based on probable cause to believe that the person has committed a crime; or, (b) For arrests in a private building, there is a valid search warrant.

(2) Arrest must precede the search/be substantially contemporaneous. Exception where officer has probable cause to arrest, but merely delays formal announcement of arrest. (Rawlings v. Kentucky)

(3) Search is limited to person of arrestee and his grabable area. (Chimel)

This authorizes seizure and opening of containers in the area. (Robinson) This must also be contemporaneous, otherwise officer needs a warrant. (Chadwick)

(4) For arrests of persons in stopped cars, grabable area includes entire passenger compartment/any containers in it bright line standard. (Belton) Applies even if officer makes contact AFTER D exited car. (Thornton)

(5) HOWEVER, cops must: (Gant) (a) Have reasonable suspicion that there is evidence of the particular crime in the car; or (b) D must be unsecured and w/in reaching distance at the time.

Historically, searches incident to arrest were really about evidence gathering. Harris v. United States: Court upheld a full-house search for forged checks Unites States v. Rabinowitz: Court upheld a 90-minute search based on an arrest warrant for stamp forgery saying that Harris authorized the scope of the search, which was intended to produce things connected with the crime.

Chimel v. CA: (Cops had arrest warrant for burglary of a coin shop. Ds wife let cops into the home, waited for D to return. D was arrested when he returned; cops asked to search the house, D objected. Cops searched the house anyway, finding coins.) GRABBABLE AREA RULE: It is only ok to search the person and the area under his control, i.e. where he could get a weapon, destroy/conceal evidence. Anything more would diminish the 4th entirely. Rejects Rabinowitz says the scope of the search was unreasonable no reason to go through all the drawers/containers in the house. Dissent: Not searching may jeopardize destruction of evidence there is exigency here. Reasonableness would be a better test.

US v. Robinson: (CONTAINERS D was arrested for driving w/o a license, cops found heroin in a pack of ciagrettes.)You can be searched, as well as any containers, when you are arrested, mainly for protection of the officer. Case-by-case adjudication is unnecessary; Robinson creates a hardline rule, while Chimel created a standard. Difference might be bc Chimel was inside a house?

Dissent: This could result in profiling and arresting/searching for minor crimes. Should also take into account whether it is likely that this type of person may be armed.

ARRESTING PPL IN A HOUSE: Maryland v. Buie: Cops may do a protective sweep of the immediately adjacent area, i.e. closets, to the place of arrest, when executing an arrest warrant in a house, from which an attack could be immediately launched. o A sweep into further areas requires an articulable reasonable suspicion that those areas harbor an individual posing danger. Protective sweeps aimed at officer safety may extend only to cursory inspections of those places a person could be found.

ARREST IN A CAR: NY v. Belton: (Search of pockets of coat left on backseat after D was already away from the car.) When a cop stops you, its a seizure, and the cop can search the grabbable area of the passenger compartment of the car. Justified by officer protection and destruction of evidence. NOTES: o NJ says NO to this type of rule; no authorization to arrest for a traffic violation. (State v. Pierce) o This case was decided BEFORE Acevedo, otherwise, cop might have used the automobile exception. o Trunk would still be off-limits.

Thornton v. US: (D exits stolen car as officer pulls up, consents to pat down; officer feels bulge in pocket, D admits to having drugs. Officer arrested him, searched back seat of car, found a gun.) Ct says that once officer has probable cause to make an arrest, it is reasonable for them to search the ENTIRE passenger compartment, to preserve evidence/safety. Belton applies both to occupants AND recent occupants of a car, even where officer does not make contact until person has left the vehicle. No reason to say that in this case, the area of the car was beyond Ds control.

NOTE: Arent we just supposed to be looking for items immediately accessible to D?

DISSENT Scalia: Search is justifiable bc of possibility of drugs being located, w/o resort to a categorical rule.

Arizona v. Gant: (D was driving w/ suspended license; cops arrested him, put him in back of patrol car, then searched Ds car, found coke and gun.) Ct said that the search here was unreasonable; Drawing back from Belton, looking more at individual cases; adopting Scalias view from Thornton dissent. Ct maintains the twin Chimel rationales. o (1) PROTECTION: Search incident to lawful arrest can be affected only where the guy is left unsecured and w/in reaching distance at time of arrest. o (2) DESTRUCTION OF EVIDENCE: Can only search if the officer has reason to believe that there is evidence in the car to support the crime for which D is being arrested. NOTE: This would have provided a basis for BOTH Belton and Thornton. NOTES: o o Why is this just reason to believe, not probable cause? Why is it limited to crime for which D was arrested? If this were a traffic stop, it would basically prohibit searching the interior of the car at all. DISSENT Scalia: Should rationalize searching the car to find evidence for which D is arrested, or other crimes if there is probable cause. o NOTE: Could this lead to more house searches, less car searches?

Knowles v. Iowa: Officers CANNOT conduct search of vehicle where they are just issuing a citation and not arresting. (Threat to the officer is much less in this situation.)

Virginia v. Moore: (State outlawed arrests for driving w/a suspended license, but cops arrested D.) See Atwater.

Colorado v. Burtine: Inventory search was deemed permissible because it served to

protect owners property, let cops know what is in the jail, and to protect cops from claims of lost stolen or vandalized property. Evidence gathering is very significant after arrest. o But if Scalia is correct, in that the purpose of search incident to arrest is just gathering evidence to support the arrest, wouldnt this allow too much? o Likely that we will have a ct saying that when the guy is in custody, you need another justification for the doctrine. REASONABLENESS: (ADMINISTRATIVE AND INVENTORY SEARCHES) One view of 4th is that (probable cause + warrant) make a search reasonable. Another view says that for a search and/or seizure to be valid, all it must be is reasonable. Camara v. Municipal Court See v. City of Seattle o Both of these cases essentially involved police power; If a housing inspector getting into a house to inspect is a search, how does the 4th apply? Traditional probable cause scheme wouldnt work in these situations. Ct in Camara develops a reasonableness test: Assuming that your regulations are reasonable, then the officer WOULD have probable cause. o o Notice that in criminal cases, Prob Cause + Warrant = Reasonableness In this context, however, Reasonable Regs + Warrant = Prob Cause

STOPS AND FRISKS: Cops have the most discretion, bc they choose who to arrest. Winston v. Lee: (search for bullet lodged in D was unreasonable; cops had various other ways to establish guilt) In 99% of the cases where there is a warrant and probable cause, there is reasonableness. However, this is not always the case, as in this situation. Terry v. Ohio: THIS CASE CHANGES THE NATURE OF CITIZEN-POLICE ENCOUNTERS. (Experienced officer watches 3 guys who seem to be casing a jewelry store; he can arrest them, or investigate. He stops/frisks Terry, feels the butt of a gun.) Ct rejects cops argument that 4th doesnt apply, however, it also rejects Ds requirement of a warrant based on probable cause. If you want the cop to act in this situation (which we do) we have to create a new rule. o RULE: (This is TWO TESTS!!) (1) If there is reasonable suspicion that D is committing or is about to commit

a crime, the officer can effectuate a stop, which is a seizure. The basis for the stop/seizure is broader than the basis for the frisk.

(2) Where there is reasonable suspicion that the person is armed and/or dangerous, you may pat him down. This is a frisk ONLY FOR WEAPONS, and ONLY OF THE OUTER CLOTHING.

NOTE: Just bc you order someone out of the car, which = a seizure, the law does not justify the search. PA v. Mimms Allows the cops to order the driver of the vehicle out of the car. Stop of the vehicle is a seizure, and asking the driver to get out of the car is de minimis. MD v. Wilson Mimms rule is the same for passengers. AZ v. Johnson If you want to frisk the passengers, you still need reasonable suspicion that they are armed/dangerous; can ask about matters unrelated to the stop, so long as it doesnt measurably extend it.

In determining officers reasonableness, due weight must be given, NOT to a hunch, but specific reasonable inferences he is entitled to draw from the facts based on his experience.

Not only are we dispensing w/ a warrant, but also w/ probable cause: Dispensing with the warrant bc of the element of exigency, in that the cop believes that a robbery is about to take place; Dispensing with Probable Cause bc we want proactive policing, in that if you require probable cause, the officer in Terry will wait for the crime to be committed.

Govt interest in finding/prosecuting crimes vs. reasonableness of the disruption of privacy/individual interests: This balance FAVORS the government when you HAVE probable cause. A Stop & Frisk, as opposed to Seizure & Search, is brief and limited on the individual side. On the government side is crime prevention, cop protection, which outweighs the individual interests where there is a reasonable suspicion that they are at stake. Terry introduces this idea of balancing, Boyd had no balancing at all.

Difference is that in a Terry determination, the cop is making the discretionary decision, whereas in the traditional paradigm it is the neutral magistrate making the determination

Terry also applicable to crimes that have been committed its much broader than just preventing crimes, it is also used for investigation.

When should Terry be used over the traditional paradigm? (1) How similar is the situation to a traditional arrest? o Dunaway v. NY: (Suspect taken to police station, w/o probable cause, not arrested, but told he was not allowed to leave.) Ct DECLINED to extend Terry to cover all seizures short of a technical arrest that would swallow the 4th. For situations FAR SHORT of an arrest, Terry Reasonableness applies. However, when the situation is much closer to being an arrest, then the traditional paradigm applies. o Florida v. Royer: (guy matched drug courier profile, was taken to a room, had to hand over the key to his luggage.) Ct said the drugs should have been suppressed bc D being brought to the room was a more serious intrusion than was justified under mere suspicion.

(2) How long does the stop last? o US v. Place: (bags of guys suspected of carrying drugs were seized, transported, subjected to sniff test, all of which took 90 min.) Ct said that although Terry authorized the initial seizure of the luggage, the extended amount of time the transport/sniff required violated the 4th. NOTE: Different result re: seizure than Hicks bc of special law enforcement need to intercept drugs at airport. o US v. Sharpe: (20 min after being pulled over, cops smelled weed in the camper.) Ct does NOT impose a bright line rule, but rather says the time must be reasonable, taking into account the diligence of the cops in investigating in a manner which would confirm or dispel suspicions quickly.

(3) Did the search extend beyond a frisk/involve police safety? o Michigan v. Long: (Cops stop to investigate a car accident. D gets out to meet the cops, leaves car door open, cops saw a large hunting knife inside; did a pat down, shined a

flashlight in the car, and saw drugs.) Does Terry support this kind of frisk to the car? YES; search of passenger compartment, limited to areas a weapon may be placed/hidden, is permissible if police have reasonable suspicion to believe that the suspect is dangerous and may gain control of the weapons. Plain Statement Doctrine If a state is deciding one of these 4th amend questions, using the provision from its own constitution, it should say this plainly, to prevent the SC from reviewing it. o Minnesota v. Dickerson: (Officer frisked, felt something in Ds pocket he knew wasnt a gun, but thought it was drugs.) There is a Plain Feel doctrine, just as there is a Plain View doctrine, but in the Terry context, plain feel only extends to weapons. Terry frisk is for weapons; if it doesnt give officer probable cause to believe its a weapon, then the search should be over. NOTE: For police safety issues, you essentially have a rule that conforms to what cops would do if there was no rule. THE MEANING OF REASONABLE SUSPICION: Comes from Terry; lesser substantive standard. Alabama v. White: (Cops received tip that D would be in a particular car, driving down a particular road, carrying drugs.) Where there was corroboration of informant, future predictive behavior, under totality of the circumstances there was sufficient reliability to justify stop of the car. o When we are dealing w/ reasonable suspicion, reliability of the informant/basis of knowledge is relevant, but not necessary. o If probable cause means a fair probability, then reasonable suspicion means something less than that. Florida v. J.L.: (Tip that guy in plaid shirt would be at a bus stop carrying a gun. Cops frisked him and found a gun.) This anonymous tip lacked the moderate indicia of reliability that was present in White; Ct wanted something more, such as predictive behavior. o Note that its the STOP here that violates the 4th, not the frisk.

US v. Arvizu: Cop suspected van of carrying drugs bc of how the children waved, their feet were

resting on something, van was a type likely to have drugs, etc. Ct said there WAS reasonable suspicion here. o o Just describing a person isnt enough to make it reasonable under Terry. Is the 4th more about reasonableness than warrants and probable cause?

Illinois v. Wardlow: (Guy holding an opaque bag in drug trafficking area, takes off running at sight of cops.) Similarities with Hodari D.; both ask whether running justifies police intrusion. o In a high crime area, unprovoked flight seems to constitute reasonable suspicion. Neither the area, nor running alone are enough. o NOTES: Compare the specificity of the suspicion in Terry with Wardlow Does this case permit reasonable suspicion of just crime in general? Evaluation of totality of the circumstances, plus cops look at things differently than the reasonable person? Do members of minority groups have a different perspective on cops based on history, etc.? Terry is one of the few cases in this area that actually addressed race. NOTE: State v. Tucker might be reasonable in NJ to run past cops.

POLICE DISCRETION AND PROFILING: There are times when race is relevant, i.e. when searching for a suspect. But should the 4th concern itself w/ profiling? US v. Sokolow: Just bc factors cited by cop in making Terry stop make up a profile, profiling does not detract from a stop. US v. Whren: (Guy stopped at stop sign for an unusually long time. Cops pulled a U-turn, car sped off, cops followed him until he made a minor violation, stopped him, saw drugs.) o Individual police officer motive is irrelevant to 4th amendment probable cause analysis. There was probable cause for the stop here, ct is not going to inquire into the police motive, bc it puts them in the position of determining which ppl cops should pull over, etc., and are courts really the institution to be determining what the reasonable cop would do? 4th amendment is concerned with probable cause, not equal protection. (If this were an EP claim, you would have to show the motive of the officers, which would be very hard to do.)

What if we just exclude the evidence in instances of profiling? The Achilles heel of the exclusionary rule is that it is one thing to exclude when the cop violates the 4th amendment, however it is another thing to exclude when the cop does NOT violate the 4th amendment.

Chicago v. Morales: (Cops issuing dispersal order to gang members.) Concern is that the more we criminalize, the more choice/discretion is given to cops, and therefore more power to profile. o Cts approach is Vagueness Doctrine But the problem w/ this is that the leg can just go back a draft more specific law.

Probable cause does not exist in a vacuum; the substantive criminal statute might be more important than the 4th amendment. o o o Welsh distinguishing btwn types of crimes Terry tying it to reasonable suspicion But not all crimes qualify

SPECIAL NEEDS: ALTERNATIVES TO PROBABLE CAUSE AND REASONABLE SUSPICION Balancing of special needs seizures: o o o (1) The gravity of the public concerns served by the seizure (2) The degree to which the seizure advances the public interest (3) The severity of the interference with individual liberty

Hiibel v. Sixth Judicial District Court of Nevada: (Officers responded to a call reporting a man assaulting a woman; officers arrived on the scene, found Hiibel drunk; asked to see his identification, he refused, started taunting the officers; they placed him under arrest.) Hiibel was charged with obstructing the officer in discharging his duties by refusing to comply with NVs stop and identify statute. o Def. Arg: Arresting someone for refusing to give his name is a violation of the 4th Amendment; NV statute is circumvention of the 4th Amendment because it allows officers to arrest a person for being suspicious. o Rule: Reasonableness of a seizure under the 4th is determined by balancing its intrusion on the individuals 4th Amendment interests against its promotion of legitimate government interests.

NV statute satisfies the standard above; officers request was a commonsense inquiry, NOT an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence.

Brown v. Texas: (Court invalidated a conviction for a similar stop and identify offense.) This time though, the initial stop was not based on reasonable suspicion like it was in Hiibel

ROADBLOCKS: When the govt stops a car, it is a seizure under the 4th. o With a roving patrol, you need reasonable suspicion, as the seizure is more individualized than a checkpoint where every car is stopped. o Cannot just be bc of race. Arvizu was roving patrol/reasonable suspicion.

When is it permissible to intrude w/o individualized reasonable suspicion? What is the primary purpose? Are people being singled out?

US v. Martines-Fuentes: Approved the suspicionless stopping of vehicles at a permanent checkpoint on a highway leading away from the Mexican border NO LEVEL OF SUSPICION REQUIRED. o Govts power to police borders has a huge interest in who/what enters the country. It is still a balance, but private interest is outweighed by govt.

Delaware v. Prouse: Declined to permit random, suspicionless police stops of automobiles to check drivers licenses and registrations o Noted that it was not preventing states from developing methods for spot checks that involve less intrusion

MI v. Sitz: Approved suspicionless police roadblocks to check for drunk drivers. o Court emphasizes that this was for the safety of motorists, which is why it is constitutional. Government interest in preserving life outweighed the private intrusion. (Rationale similar to Martinez-Fuentes.) NOTE: if only 1.5% of ppl stopped were drunk, is this really in the public interest?

Indianapolis v. Edmond: (City conducted series of roadblocks, in which, according to a certain sequence, cars would be pulled over, officers tell the driver that its a drug checkpoint, look for

signs of impairment, conduct an open-view examination of the vehicle from the outside, and a narcotics dog walks around the stopped vehicle.) Court fears that the primary purpose of checkpoint was to detect evidence of ordinary criminal wrongdoing. Although a higher % of ppl than Sitz were arrested, ct says NO to this type of checkpoint. o Police cannot set up roadblocks for general crime control purposes, stops must be justified by some quantum of individualized suspicion. You cannot construct a roadblock to see whether people are committing various crimes. Seems inconsistent with Terry in terms of police being proactive. NOTE: Privacy interest of driver does not really vary w/ the nature of the stop, i.e. whether its for drugs or alcohol. o o Remember Place a dog sniff is not a search.

Pet. Arg: Whren suggests that inquiry into purpose of checkpoint is irrelevant. Rehnquist dissenting: Roadblock seizures are consistent with the 4th Amendment when they are carried out pursuant to a plan embodying explicit, neutral limitations on the scope of the stop.

NOTE: Is Edmonds inconsistent w/ the idea that drug trafficking is the type of crime we want cops to be proactive about?

Illinois v. Lidster: (Police looking for driver in a hit-and-run. A week after the incident, in the same place, at approximately the same time, officers set up a checkpoint to obtain information from motorists who might have seen something. Lidster nearly hit an officer. They pulled him over, smelled alcohol on his breath and arrested him.) o You CAN be stopped for a crime investigation when no one is singled out. o Checkpoint WAS reasonable bc govt interest outweighed private intrusion.

An Edmond-type presumptive rule of unconstitutionality doesnt apply here: Not needed to prevent unreasonable proliferation of police checkpoints in this situation, i.e. not as much of a slippery slope fear. When cops only stop one person, that is a targeting harm. In this type of roadblock, harm that comes from individualized suspicion goes away.

REASONABLENESS AND POLICE USE OF FORCE: Talking about how cops are permitted to seize i.e. even w/ a warrant and probable cause, there still must be an element of reasonableness.

CONSENT SEARCHES: Consent means that the search is reasonable. Asking for consent does NOT require any articulable suspicion. Schneckloth v. Bustamonte: (Car gets stopped, driver consents to search, stolen checks are found.) Ct assessed the totality of the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation o Must show that consent to search was freely and voluntarily given, but need NOT show that it was knowing and intelligent. If proven, it makes the search reasonable. o NOTE: If you are in custody, the search can take place without consent.

Cops do NOT need to tell you that you have the right to refuse to consent. Requiring the state to affirmatively prove that D knew he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could be conducted. The Mendenhall factors would also be highly relevant in this situation

The consent still must be voluntary, though. In determining whether consent was voluntary, must accommodate both the legitimate need for such searches, and the equally important requirement of assuring the absence of coercion

Marshall dissenting: It is meaningless to say that someone has shown consent to be searched when he did not know that he had any other option. Believes that the burden would most fairly be placed on the prosecution. NOTE: Should the cops be required to tell you? Research shows that even they did, it wouldnt make a difference in consent rates. (If a cops asks you, do you feel like you really have a choice?)

Consent v. Miranda: Are they backwards? o 2 rights are implicated in consent doctrine, only 1 in Miranda doctrine. (4th and 5th in consent, but only the 5th in Miranda cases.) o Consent doctrine is important bc it comes up so often in motor vehicle stops. Goes back to Brandon police discretion and potential for discrimination NJ changed this to search a car there must be reasonable suspicion outside of the stop that a search would reveal evidence of criminal wrongdoing in order to

consent to search. (State v. Carty) Also in NJ, before an officer asks consent to search your car, he must tell that you have a right to say no. (State v. Johnson) OH v. Robinette: 4th amend does NOT require cop to tell motorist at the end of traffic stop that they are free to go before asking permission to search their car, in order for subsequent consent to be considered voluntary. o It would be unrealistic for a police officer to always inform detainees that they are free to go before a consent to search may be deemed voluntary 3RD PARTY CONSENT: US v. Matlock: o Theory is that when you share a space w/ someone, there is an assumption of risk that they will let cops in to search. Just like US v. White you assume the risk that what you disclose to a party will be disclosed to a 3rd party, including the police. It really depends on the circumstances, and who has control over the area that the cops would like to search. i.e. If you have a boarder or something.

IL v. Rodriguez: (Officer reasonably believed that guys girlfriend was a cotenant.) o RULE: You only need to have apparent authority Reasonableness does not require factual correctness: Cop doesnt have to be correct, his actions just have to be reasonable.

GA v. Randolph: (Husband refuses search @ door, wife consents to it at same time.) Ct said that entering anyways was unconstitutional. o This case only draws a very fine rule the objector must be there at that time, objecting. o Ct is shifting away from assumption of risk towards social expectations: Overnight houseguest social expectation is that we wouldnt let someone enter that the guest didnt want to be there. But is this really an accurate statement of social expectations? Are these expectations always that clear? o DISSENT: In Frazier v. Cupp, its a shared dufflebag.

How does Randolph make sense in light of cases like Matlock? (arrested resident was in a squad car nearby after being arrested when consent from a co-resident gave consent to the police to search the premises; ruled constitutional) What if you stepped into another room? How is this fair, how is it a reflection of social expectations? Why not say in this case that for 3rd party consent, you need some reasonable suspicion. Like the idea of Terry, before you go in?

Consent can be limited: o FL v. Jimeno: Did the consent to search the car include opening a closed bag in a car? Ct said that it WAS reasonable to believe when consent was given that it included any containers within the car. The standard of measuring the scope of a suspects consent under the 4th Amendment is that of objective reasonablenesswhat would the typical reasonable person have understood by the exchange between the officer and the suspect? A suspect can delimit as he chooses the scope of the search to which he consents Ct distinguishes btwn having a closed bag and a locked briefcase.

Saying that the cop cant open a bag shouldnt give the cop reasonable suspicion, bc otherwise, you wouldnt be able to limit consent ever.

NON-POLICE SEARCHES: 4th amend is not exclusive to criminal cases; it can be applied to any govt actor who invades a persons reasonable expectation of privacy.

LIMITS ON THE EXCLUSIONARY RULE: (1) Good faith Exception: Exclusionary rule does not apply (2) Standing: Limits the set of defendants who can invoke the exclusionary rule. o TEST: D must show that the cops did something illegal to him.

(3) Fruit of the Poisonous Tree: Places boundaries on the evidence that can be suppressed due to an illegal search. o TEST: Illegality caused police to find something that D seeks to suppress?

(4) Impeachment Doctrine: Limits the degree to which excluded evidence is actually excluded

(1) GOOD FAITH EXCEPTION: (2) STANDING: Requirements: o o Step 1: Defendant must show the cops did something illegal to him or her Step 2: that illegality ended up allowing the police to find evidence (fruits)

Who gets to raise the 4th Amendment claim? o o Original rule was that it must be someone subjected to a search or seizure Then court brought in legitimately on the premises you were protected o Rakas rejected that

NOTE: If the idea of the exclusionary rule is not constitutional, but only a rule created by the court to deter the police, doesnt matter whether you give it to A, B, or C. But a result of standing is that you get police acting strategically. (Payner)

(3) FRUITS OF THE POISONOUS TREE: Suppression of Fruits TEST: o (1) Like in torts, first ask whether, but for the illegal search the evidence in question would have been found. (Cause in Fact) (A) Was evidence obtained via an Independent Source? If so, cops violation is NOT the Cause in Fact, Fruits doctrine wouldnt apply, not suppressible. (B) Would the evidence be Inevitably Discovered? Basically, even if cops engaged in this illegal conduct, as they continued acting/searching legally, would they have discovered the evidence anyways? If so, then not suppressible. Standard is preponderance of the evidence.

(2) Then look to attenuation i.e. whether the taint of the illegal search had dissipated by that time? (Proximate Cause)

Rationale for including but for causation: Dont want the cops to be in a worse position than they would have been anyways o Keep in mind, however, goal of this doctrine/remedy is to deter the police from illegal searches.

Wong Sun v. US: (Agents got a tip from Way, proceeded to Toys. Toy answered the door and fled; agents followed him inside, arrested him after seeing him flee. Toy made incriminating statements at scene of his arrest, which led cops to Yees home, found heroin in his bedroom; shortly afterward, Yee made statements incriminating Wong Sun. Later, some time after Toy and Wong Sun had both been arraigned, agents interrogated both men; both made incriminating statements during the course of those interrogations.) o Evidence against Toy: o Statements: Toys first statement implicating Yee Toys second statement in police custody (aka confession) Drugs found at Yees, which police are trying to link to Toy.

Evidence against Wong Sun: Statement made by WS in police custody (aka confession) Drugs found at Yees

Primary illegality is the entry into the home and the seizure of Toy. (Toy has standing bc they violated his rights by entering.) Ct is satisfied that Toys statement came out as a result of the illegality. Discovery of the heroin at Yees is a direct result of the primary illegality of seizing Toy at his home. Accordingly, no probable cause as to Toy, not like Draper and those cases.

Attenuation: However, Wong Suns statement was sufficiently attenuated as to dissipate the taint of the unlawful arrest, and cannot be suppressed. He had returned voluntarily to give the statement

Standing: Wong Sun also has a standing problem regarding suppression of the drugs.

HYPO: Police search As house illegally. They find no evidence of a crime, but they find Bs address. Then Bs house is searched illegally and evidence is found. o o B clearly has standing. A has standing too bc it was the illegal search of his house that led to the piece of paper leading to the illegal search at Bs. However, note that if the original search of As house was legal, and subsequently an illegal search of Bs house turned up evidence against A, A at this point would lack standing to suppress.

US v. Ceccolino: (Attenuation/Proximate Cause Case) Illegal search of an envelope, via which cop discovers the name of a witness, who later testifies. o Testimony of the witness SHOULD be suppressed bc of attenuation: Who knows why a witness testifies? Difference btwn testimony and evidence.

Murray v. US: (Cause in Fact/Independent Source Case) Cops illegally break into a warehouse, see drugs, THEN go to a judge and apply for a warrant. They do NOT tell the judge that they had broken into the warehouse, presumably used outside evidence to support the warrant. They get the warrant, go back and seize the drugs. D says this is the fruit of the poisonous tree. Remanded to the factfinder to determine whether the warrant authorized search of the warehouse would have occurred if not for the warrantless intrusion o In this context, both (1) the decision to seek the warrant, and (2) the warrant itself, must be from independent source. Does Murray give cops and incentive to engage in warrantless searches, in that you go in, and if you dont find anything, just leave, and if you find something, whats to prevent you from making up a reliable informant or something? Could look at this case as saying that police testimony is presumptively truthful.

Independent Source vs. Attenuation: o Major difference is that in attenuation, you are talking about the strength of the causal connection btwn illegality and discovery, and in independent source, saying there is no connection. Attenuation involves the illegality, but we excuse it by saying its too remote. Independent source, we say that there was a legal basis for the cops finding this

evidence. Hudson v. Michigan: (Attenuation Case) Knock and announce case Cops had warrant to find guns, but only waited 3-5 seconds before entering home, not long enough to make the search reasonable. (Remember Banks one flush rule) o Attenuation also happens when given a direct causal connection, the constitutional violation would not be served by the suppression of the evidence obtained. (i.e. Where the interests violated in a case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.) Interests violated in this case have nothing to do with the seizure of the evidence exclusionary rule is inapplicable. While acquisition of the gun and drugs was the product of a search pursuant to warrant, it was not the fruit of the fact that the entry was not preceded by knock and announce Cost benefit analysis comes out in favor of the govt. Also, if cops have reasonable suspicion of danger or drugs or futility, then they dont have to knock at all, so then this logically doesnt line up.

(4) IMPEACHMENT DOCTRINE: US v. Havens: (During cross-examination, claims no involvement.) Ds statements in response to proper cross-examination, reasonably suggested by the defendants direct examination, ARE subject to otherwise proper impeachment by the government, albeit by evidence that had been illegally obtained and is inadmissible. o Tainted evidence, inadmissible when offered as part of the governments main case, may not be used as rebuttal evidence to impeach a defendants credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination. Effect is to keep D off the witness stand.

Illinois v. James: o Havens is limited to D, does NOT apply to Ds witnesses. Expanding the impeachment exception would chill some defendants from calling witnesses who would otherwise offer probative evidence o Are James and Havens consistent?

Seem inconsistent, but what happened is probably that the ct picked up another vote.

Looking at the 3 together: Standing, fruits and impeachment seem to all have the same arguments: Defendant in all 3 doctrines is saying the police should not benefit at all from the violations because then the cops will have an incentive to do so. o Standing: You can use the evidence in standing against others. o Govt wins this one; they can truly act strategically.

Fruits: You can use some of the illegally seized evidence for fruits depending on attenuation. D at least gets to suppress some of the evidence.

Impeachment: Keeps the defendant off the witness stand, but not any other witnesses. Ct really splits the baby with this one. Is this wise? Turns on whether you know if cops are actually acting strategically. Maybe this is why the ct compromises, bc you cant really figure this out sometimes.

**************************************************** FIFTH & SIXTH AMENDMENTS (Interrogation and Confessions) We are only concerned w/ the 5th amendment privilege: No person shall be compelled in any criminal case to be a witness against themselves. Basically, the govt should not force ppl to make choices that tend to criminally implicate them. Judge determines whether privilege applies. Statement by D does NOT have to be a confession to be protected. Any answer to any question that provides a link in the chain that leads to the evidence, or that implicates a witness. o You must assert this privilege. Only works in the criminal case where the potential statement would be used. Can certainly assert it in a civil context, if there is the potential for it to be used in a criminal case. o Violation doesnt occur until the evidence is used at trial. How does this affect how the govt investigates crimes? Where the best source of information is a person implicated in the crime. Far-reaching drug conspiracy want to question the ppl on the street. What do you do? o Grant them immunity. 2 kinds of immunity: Transactional Immunity: Immune from any crime that the testimony is about. No one really does this anymore. Use/Fruits Immunity: Cant use the testimony or fruit of it against that person. Would need independent info from another source to prosecute the person. 3 parts to the 5 : (1) Compulsion: Comes from no person shall be compelled language. o Typically compulsion comes from the idea that if you refuse to testify, held in contempt. Griffin v. CA You CANNOT comment on Ds failure to testify. D is even entitled to a jury instruction against it, if the defense wants it. (2) Incrimination: Comes from the criminal case language. (3) Testimony: Comes from the witness language. o HYPO: D refuses to give a blood sample. Can he assert the 5th? NO, this refusal is admissible at trial. Schmerber Says that the 4th applies to physical things, and the 5th applies to testimonial.
th

Kastigar v. US (pg. 722)

Limits on the 5th: 5th can sometimes give way to other kinds of social issues Bouknight (pg 751) Evidence was childs body

POLICE INTERROGATION THE MIRANDA REVOLUTION: We want reliable statements, and so we question the voluntariness of the statement. Also, we dont want cops engaged in abusive tactics to elicit statements. Court grapples with Reliability, Voluntariness, and culminates with Miranda. Bram v. US (pg. 760) (shortly after Boyd) Bram was accused of a crime, and was stripped during interrogation. HOLDING: This violated the 5th bc his confession WASNT voluntary; i.e. he was compelled! o o o Inherent compulsion: Normal stuff related to fear after the crime. Implicit Promises: He was also promised something, like, things will go better. Not a case about govt coercion, but about maximizing individual automony.

Analogy to Boyd, with the invoices:

Today, we have plea bargains; This would NOT work in a system with Bram this essentially cuts of ALL police interrogation. Bram applied ONLY to the federal courts, bc this was before incorporation of the 5th to the state in Hogan v. Malloy. Cases that shifted the focus to the Brown v. Mississippi (pg. 762) Shifted the focus to the due process clause. Ashcraft v. Tennessee (pg. 763) Relays of interrogation. Watts v. Indiana (pg. 764) solitary, no hearinfs. 2 approaches to these cases: (1) Coercive effect on D o How much force is too much? No test for this. (2) or Police Conduct

Basically, there is a line, and at one end there is no pressure at all, and at the other, there is true torture. The cases at either end are easy, the confession is either in or out. It is the cases in the middle that are tough. Massiah v. US (pg. 767) D and his buddy had been indicted, buddy was bugged, and D incriminated himself. Ct uses a 6th amend approach here.

ISSUE: When does the 6th amend right to counsel attach? RULE: It attaches once the D has been indicted. o What took place in this case was a form of interrogation; the buddy was a kind of govt agent, who elicited statements from D. Ct treats deliberate elicitation as an interrogation.

Would this doctrine apply pre-indictment? YES. Escobedo v. Illinois (pg. 772) Cops wouldnt let Ds lawyer in during pre-indictment interrogation. Ct applies messiah at this time as well, with this use of questioning. Miranda subsumes this case.

Miranda v. Arizona (pg. 773) Acknowledges that police officers prob dont do the stuff that they did in Brown, etc. anymore; they use more subtle tactics. Ct looked at training/teaching manuals for cops, raises issues of voluntariness, coercion, and how do we protect the 5th amend right. o o Creates Miranda Doctrine. NOTE: Ct didnt preclude the legislature from coming up w/ other ways to protect this interest In the absence of any other regime developed by leg branches, this is going to be the paradigm. Mirandas warnings only apply in the context of custodial interrogation. o Even if you give the warnings, D still has DP rights, voluntariness concerns you cant beat him up Miranda Warnings: o o o o Right to remain silent: Offsets the inherent coercion we talked about in Bram. Anything you say can and will be used against you: Makes D aware of the seriousness of the consequences. Right to a lawyer: D needs to know he can get help A lawyer will be appointed if you cannot afford one: Still get protections even if you are broke. These warnings can be waived, so long as there is a knowing voluntary and intelligent waiver. o Govt has a heavy burden to prove the sufficiency of the waiver. NOTE: Footnote 4 Escobedo has been subsumed by Miranda. WHY? This atmosphere is so coercive that Ds will is clearly going to be overrun. We give D these warnings and a lawyer to assist him.

Mirandas Intent: Honoring the 5th amend privilege, while allowing interrogation at the same time.

HOW? 2 things that make Miranda work: o o (1) If you want to to stop police coercion, D must understand enough to invoke his rights and cut off any abuses. (2) But he must also NOT understand that it is foolish to talk to the police in the first place, that he is better of keeping quiet and speaking with a lawyer.

Waiver trap But how can you possibly knowingly and intelligently waive your rights in such a coercive atmosphere? o Ct doesnt know how much pressure is too much on the continuum of police conduct, so it takes itself out of the decision the determination becomes Ds determination.

Presumption that there was no valid waiver after warnings. NOTE: Miranda is about custodial interrogation, dont need to give warnings if you dont intend to interrogate. o Note that Miranda court was also concerned with ploys and deceptions, reverse lineups, etc., just as much as physical coercion.

In the absence of leg, establishing another regimes, Miranda is the protocol. o Bram v. o Puts police interrogation in the realm of the 5th amend. criminal case means the case in which the confession is to be used. No state leg has come up with a replacing provision.

CONFESSIONS: 2 things the state must satisfy: (1) must satisfy Miranda, which is a 5th amend concern; (2) Must satisfy voluntariness, which is a due process concern.

Due Process Concerns: Reliability Connelly v. CO: (pg. 792) Guy with mental illness confesses bc voices in his head told him to. Lower ct said that his statements were involuntary, and thus violated DP. In other words, the confession was not the product of his free will. RULE: This was NOT a due process violation bc there was NO POLICE COERCION. o (1) voluntariness is only about police coercion, and NOT reliability. o Thus it is sort of like the exclusionary rule, in that it is a tool to deter cops from improper activity. (2) Waiver Psychiatrist who examined him said that D understood the rights. The state bears the burden of establishing the waiver, by the preponderance of the

evidence. o (3) Reliability of his statement is a state evidence problem, not a constitutional problem. Sanchez-Llamas v. Oregon: (pg. 791) No exclusion on evidence obtained abroad. Notice that there is no enforcement here.

SCOPE OF MIRANDA: CUSTODY: Miranda applies to custodial interrogation. Definition of custody is functional. o o o Does NOT apply where D goes to police station voluntarily. Oregon v. matiason, CA Does not apply to grand jury witnesses Does not apply to a suspect on which investigation is focused, but he is not in custody. Objective definition of custody: o Whether a reasonable person in Ds position would have believed himself to be deprived of freedom to Should Miranda be applied to Terry stops? NO, bc Terry stops by definition are brief, and (2) stops like this take place in public, so you dont have the combination of custody and interrogation in secret that leads to Miranda. Berkemer v. McCarty (pg. 795) Minnesota v. Murphy (pg. 797) Guy makes incriminating statements to his probation officer, asserts his 5th amendment right, probation officer says this isnt the place for that. Although this WAS an interrogation, Murphy was NOT in custody. If he hadnt asserted this privilege, he would have waived it, in the traditional 5th amend paradigm. Miranda is an exception to this. o The ct analogizes to this paradigm here is that right? Although he came to the meeting voluntarily, had he left HOLDING: Not going to apply Miranda here so as to require the probation officer to ISSUE: Is age relevant in terms of determining what the reasonable person would believe with regard to custody? o Prior to JDB, this was a strictly objective test, i.e. would a reasonable person believe that he could leave? Test: Whether the age would be objectively apparent to an officer. JDB v. North Carolina (Ch. 6 Supplement)

Age CAN be a factor in this determination.

INTERROGATION: Rhode Island v. Innis (pg. 799) cops start a convo about finding the gun in Ds hearing. Definition of interrogation includes not only express questioning, but also its functional equivalent; anything that is reasonably likely to illicit an incriminating response. o o o Focus is on the perception of the suspect. Unforeseeable incriminating statements are fine Ploys, on the other hand, are NOT ok.

Court is really stretching here to find that this isnt interrogation.

AZ v. Mauro (pg. 804) This wasnt a ploy, just a stupid choice on the Ds part. Illinois v. Perkins (pg. 805) stick an informant in the jail with the suspect, gets him to admit to this particular murder. Innis and Mauro hint that ploys are ok; Perkins confirms this. o An undercover guy cant give you Miranda warnings. When you look at interrogation from Ds perspective, seems that it only takes place when D believes he is being interrogated by the cops. o After Miranda, D is the one to draw the voluntariness line. Idea of choice. Perkins, however, draws a distinction btwn force and fraud. You cant use harsh tactics to get the confession, but you can trick someone NOTE: there is a 6th amendment issue w/ using undercovers once 6th amend ment kicks in. Also, still a voluntariness issue. AZ v. Fulminante (pg. 810)

NOTE: There are NO waivers btwn Arrest and Warnings. WARNINGS:If the warnings are inadequate, there is an inability on the part of D to waive. Variations within the language of Miranda Warnings: Confusing warnings? Does this confusion stem from Miranda itself? FL v. Powell (pg. 812) Dont need the exact same words, just need the gist of Miranda. Also notes that the FBI has an exemplary version. Why not require everyone to use FBIs language? INVOCATION: Michigan v. Mosley (pg. 814) D invoked right to remain silent. Two hours later, a separate

officer came in, gave him Miranda again, and questioned him about a separate crime. o RULE: His right to cut off questioning was honored, this is ok. What if it was the same crime, with the same officer?

Edwards v. Arizona (pg. 816) Once you have invoked right to counsel, cops cant come back the next day and question you, even if you respond to their questions. Roberson: (pg. 824) Says it applies even if its a different crime Minnick: (pg. 824) Once a suspect invokes counsel, questioning must cease, even if he has seen counsel.

Distinguishing These Cases: Seems that if D invokes the right simply to remain silent, that D is comfortable, and figures that he can handle it. o Functional voluntariness w/ Miranda, either D draws the line or he doesnt. On the other hand, if D invokes right to counsel, maybe he is saying he cant handle this, and wants a lawyer to do his talking for him. What is an invocation? US v. Davis (pg. 819) You must explicitly say you want a lawyer, you cant equivocate. o Bc of the power of Edwards, that cuts off questioning, Davis cuts the other way, and allows some interrogation in those cases that might not be so clear. Smith v. Illinois (pg. 820) I think I want counsel o o Arrest (1) you have to make a direct/clear statement, and; (2) the cops dont need to clarify what you mean by your equivocal statement. In NJ, you ask clarifying questions.

Fare v. Michael C. (pg. 821) A request for probation officer is NOT a request for counsel. Warning Invocation Reinitiation

Oregon v. Bradshaw (pg. 822) Is the statement whats going to happen to me now sufficient for purposes of this re-initiation? Cts says YES o Is ambiguity resolved in favor of the government? Why no clarification here?

Coupling Edwards w/ Robeson and Minnick: How long does it last? Are the cops forever barred from questioning? Maryland v. Shatzer (pg. 826) Guy moved from segregated are to general population, then cops were allowed to re-approach him

RULE: Cops can return to a the person after a change in custody. Change in custody, plus 14 days, eliminates coercive factors, calm yourself down, consult, and so then you are ready when cops approach you again. If the cops cant go back in a case like this, then it would mean that you are protected for the rest of your life.

o o

Why 14 days? Yes, this is arbitrary, but the ct wanted to create a bright line rule (1) Will the mere passing of 14 days, even w/o a break in custody, allow cops to go back and re-Mirandize you? (2) Does Shatzner apply to Mosely? i.e. same cop same crime question? Residual Questions: (unanswered as of yet)

WAIVER: Moran v. Burbine (pg. 829) D didnt know his sister had retained a lawyer, lawyer called to represent D in interrogation, cops didnt tell D, lied to the lawyer about interrogating D more that night, then interrogated D, who waived his rights. RULE: We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights o Majority thinks that Miranda is focused on police coercion, not unwise waivers. o o Perkins allows deception Does that fact that they tricked the lawyer and not the D make a difference? But arent all waivers unwise?

Dissent is back to the idea of the informed choice. NOTE: Does this case mean that Escobedo is no longer good law?

Shows us 2 different views of what Miranda can mean you CAN read Miranda to support this idea of informed choice. But we also see that the ct is primarily concerned about police coercion.

Interrogations: pg. 838 this is rough, but ok. MISSED CLASS 11/16 Quarles creates an exception. Says you dont need to give Miranda warnings in that situation. Dickerson yes, Miranda is a constitutional decision. Does this mean that Quarles, etc. get overruled?

Doyle v. Ohio (867) You cant use a person whos been mirandized failure to talk against him, although you CAN before theyve been mirandized. Missouri v. Seibert (pg. 868) 2-pronged interrogation protocol: o o dont give warnings, ask questions, then when you get what you want, you give warnings, then go get the confession you want. Based on Elstad: o Fruits of the poinsonous tree, continuing ct rejected this argument. Plurality: This end run around Miranda DOESNT allow for what Miranda is intended to do. How is this knowing and intelligent? Kennedy: If you want to use this 2 step process, make the test subjective did the officer intend to end-run Miranda? Need not be excluded if curative measures were taken. o o But isnt this the same kind of stuff you think about w/ fruits? And doesnt the ct try to avoid making things subjective in criminal procedure?

Dissenters: They say this is basically elstad, and unless you can say this statement was involuntary, it can come in. o Elstad rejected fruits, as well as the idea of the cat being out of the bag.

But we can take from seibert that the ct is telling cops to take Miranda seriously He claims that the gun is the fruit of the Miranda violation There is no 5th amend OR Miranda violation unless you were to introduce the statement at trial. o o Unlike the 4th where the violation occurs when the search happens, the violation here doesnt occur until you go to introduce the statement at trial. Dickerson called Miranda constitutional, here they call it a prophylactic to protect the 5th , so there must be a close fit. o Why would we protect the gun, since it isnt testimonial? Cost benefit just too costly to exclude reliable evidence like a gun. W/ physical evidence, you dont need to worry about reliability, etc.

US v. Patane (pg. 876) Guy tells cops he knows what the Miranda warnings are.

Dissent: o Doesnt make sense not to exclude the fruits of an unconstitutional interrogation. Did Dickerson really do that much? Miranda doctrine seems to still be the same.

RIGHT TO COUNSEL RECONSIDERED Brewer v. Williams (pg. 882) (Same case as Knicks v. Brewer) Christian Burial Speech case. Notice that this case revises Messiah Ct goes off on the 6th amendment. o 6th amendment right to counsel applies when adversary proceedings have begun. It does NOT apply just bc you have a lawyer; only applies after adversarial proceedings have begun. o In Messiah, that was indictment. In Brewer, that was at arraignment.

Ct decided this case on 6th grounds, but we are going to look at it from Miranda analysis. (1) Is it clear that Williams was in custody? o Although he went to the police station, kind of like Murphy, Williams is surrendering himself to be arrested, no question that hes in custody. (2) Was Williams interrogated? Yes, bc the burial speech was specifically designed to elicit an incriminating response In Innis, the cops were talking to each other, and Innis heard it. Here, however, the officer is talking to Williams, so there is a strong case to be made that the burial speech was an interrogation. o Additionally, the speech calls for a response, and involves the merits of the case. (3) Did Williams waive/invoke? Even under NC v. Butler, you dont need express waiver, now plus Burgess v. Thompkins, you could make a pretty strong case that Williams waived. Williams could argue that he invoked through both the lawyer in demoines, and the lawyer in davenport, each of whom separately told police that Williams wanted to speak w/ lawyer. He could also make a mental capacity/overly religious argument. State could argue under Burbine that its Williams right to counsel, and HE never said anything, and it is him, not his lawyer, who must assert the right. However, the lawyers statements were make in the presence of Williams, so maybe could argue that he adopted them. If Williams prevailed on the invocation issue, then according to Edwards, Roberson, Minnick Christian burial speech would be improper. Govt could argue that Christian burial speech fell w/in Quarles if

they didnt know the girl was dead? Exigency? In light of this, why do we need 2 different tracks in crim pro addressing police interrogation? DELIBERATE ELICITATION is the 6th amend analog to this. o o o o Massiah - US v. Henry (pg. 891) Cop initiated interrogation with an indicted defendant i.e. deliberate elicitation, statements were used at trial. This was a violation of the 6th. Kuhlmann v. Wilson (pg. 891) PASSIVE informants, however, are ok. Maine v. Moulton (pg. 893) There was a 6th amend here bc adversarial proceedings had commenced for some of the offenses. Undercover went in and deliberately elicited statements about crimes for which proceedings had NOT begun ct held that for these crimes, this was ok, bc under IL v. Perkins, you CAN use an undercover agent. Deliberate Elicitation focuses on officers subjective intent. o Based on Perkins, this is NOT true w/ respect to ploys/interrogation under the 5th. (a ploy is intentional) Michigan v. Jackson (pg. 893) (overrules by Montejo) D said he wanted a lawyer at his arraignment. Stevens said that this invocation meant that the Edwards rule should apply even w/ respect to 6th amendment counsel. o Stevens position here is similar to his position in Burbine, where he was concerned about tricking ppl into waiving. Isnt he accomplishing the same thing here in the 6th amendment context? o This view depends on whether you view lawyers as indispensible Imposing Miranda regime beyond custody? 6th Amend is OFFENSE SPECIFIC.

Montejo v. LA (pg. 894) Overrules Jackson. Cops came back to cell, bc montego had mentioned weapon. Re-minrandized him, took him to go look for weapon. He wants the full protections of Jackson; but the ct overrules it and says that the 5th is sufficient protection. Said that all of this is too much, and invoking lawyer at arraignment is different than when cops are about to interrogate you. o RULE: Assertion at arraignment does NOT prohibit cops from attempting to interrogate you. Cops could still go to the jail, give Miranda, and if he waives them, they can still interrogate him.

Kansas v. Ventris (pg. 892) If you get a statement violating 6th, you can still use it to impeach D should he take the witness stand. This is bc the only question here is the nature

of the remedy, and precluding the statement in the rest of the case is sufficient, and we dont want to allow ppl to lie on the stand. o Implicit in this is that D lies.

For D in Custody: If person has invoked, then Edwards still applies. If he hasnt, you still have to go back and mirandize him, regardless of 5th or 6th. And you CANT use trickery once the 6th applies, bc this is Henry and those cases. For D NOT in Custody: 5th: Not custodial interrogation, so does not apply if not in custody. 6th: If hes been arraigned, etc., he has a 6th amendment right; however, must invoke his 6th amend right cops can approach him and seek a 6th amendment waiver, whereas they COULDNT do so if he was in custody. o Not talking about trickery here. HYPO here is that the guy is out on bail, and know hes talking to the cops. o easy. Might not even need to give waiver warnings (Montejo doesnt require it) Patterson v. Illinois if you give Miranda warnings, and D waives them, he has waived BOTH the 5th and the 6th. This was clearly a custodial interrogation case, so does it apply? o So, one thing that the 6th allows is for the cops to approach someone not in custody. It is probably the safest course to give Miranda warnings, but it is NOT clear that they HAVE to, especially if D has been Mirandized before. Burbines 6th amend argument: (pg. 896) Characterizing situation as cops interfering w/ getting his lawyer. But he hadnt begun adversarial proceedings yet, so the 6th didnt apply. In Montejo, ct remands the matter for him to assert his right under Edwards bc of his confusion in the conversation where the cops asked him to get the gun to see if he invoked there; Language here also suggests that if someone is represented, it might be of constitutional significance. Trickery would be violation of Messiah. Jackson would prohibit this, but after Montejo, they CAN approach him.

D must waive this 6th amend right still. But after Burgess, this waiver seems pretty

WHEN HAVE ADVERSARIAL HEARINGS BEEN INITIATED?

6th applies at every critical stage: Arraignment, initial court appearance, preliminary hearing, indictment, etc. (not exhaustive) EYEWITNESS IDENTIFICATION: The ct has pushed back on the right to have counsel at certain stages to have counsel present bc they are so important. Gilbert v. California (pg. 160) Established that the per se exclusionary rule was applicable to out-of-court identifications made in violation of suspects right to counsel. RULE: Any evidence obtained in pretrial identification without counsel is ALWAYS inadmissible. This requires, however, that the 6th amend applies. US v. Wade (pg. 160) Established Wade hearings. Fruits of the Poisonous Tree: Pretrial, post indictment identification w/o counsel present IS admissible, but only if you can show by clear and convincing evidence that there is an independent basis for the in-court identification. (i.e. is it tainted by the pre-trial identification?) What is the purpose of having a lawyer pre-trial? o For them to pick up on how the identification is conducted, so they can bring it up on cross-examination. They cant stop lineups, but it is part of the lawyers prep for trial. This is a critical stage; identification evidence is pretty powerful.

PRE-INDICTMENT: Wade/Gilbert is relevant pre and post indictment. The power of an identification does not depend on whether a person has been indicted. Kirby v. Illinois (pg. 162) Drawing a line as to when you have a right to a lawyer dont need one at this point. 6th amend does not attach on arrest or when cops seek a warrant; Kirby ct draws a line as to when the right stops. Counter Argument to Kirby: Analogizing from 5th amend to DP right: o o Reliability is important; if you convict someone on unreliable evidence, D can make a due process claim. You get a lawyer to protect your 5th right, why not one to protect DP right to reliable ID evidence? Counter to this is that courts are very reluctant to consider DP arguments in criminal cases DP means the bill of rights, so there is reluctance to give D more. PHOTO IDENTIFICATION:

US v. Ash (pg. 163) There is no confrontation in allowing photographic lineup identification to be admissible w/o counsel. HYPO: Post-indictment, cops use a photographic lineup. o Ash says no. Suppose the cops lined the ppl up, then took pictures, showed them to witness, who Idd, and then the pictures get lost. Is this ok? Should D have a lawyer? o Distinction in Ash/Gilbert is that it wasnt live, there is no confrontation in a photo lineup. Counter: Didnt you have a confrontation when you lined the ppl up and took a picture? Should there even be a distinction here btwn the types? In conducting lineups, should show photo one by one, and should have cop do it who is not on the case. Presenting them as a group suggests to the witness that the perp is in the lineup. Should cops tell witness that they may not be in the lineup? o Manson v. Braithwaite (pg. 165) Reliability becomes the linchpin for ALL identifications, even going back to Wade. Should you be putting ppl in the lineup who are dressed like the suspect, or who look like them? Reliability is a due process concept. You can make a DP argument even if the 6th amend isnt violated. Requires exclusion of pretrial id if the procedure was unnecessarily suggestive or had substantial likelihood of misidentification. 6th amend rule is a step to ensuring reliability, The photos are preserved.

Stovall v. Denno (pg. ) Wade/Gilbert rules were NOT made retroactive, Stovall occurred before them, so they applied DP clause here. ISSUE: Was the procedure unnecessarily suggestive/substantial likelihood of misidentification? o This was a case involving a one person showup, pretty suggestive.

Can D waive 6th amend right post indictment? YES; and counsel need NOT be present to effectively waive.

Moore v. Illinois (pg. 163) Women idd D at a preliminary hearing. Ct said it was no good bc it was a critical stage. Plus, what could be more suggestive?