CRIM PRO OUTLINE

4th Amendment:The right of the people to be secure in their persons, houses, papers, and effects, against UNREASONABLE SEARCHES and SEIZURES, shall not be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

UNIT ONE

Katz Threshold Doctrine

What Constitutes a SEARCH?

Government Action is a SEARCH when it invades a reasonable expectation of privacy which occurs when:

1. A person exhibits an actual expectation of privacy AND2. Society is prepared to recognize that expectation as reasonable.

Factors that Suggest that Society is NOT Prepared to Recognize an Expectation of Privacy as Reasonable

1. Voluntary disclosure to a 3rd party who conveys information to Government (Assumption of Risk) 1. White - was convicted by use of information that was communicated to an informant through a radio transmission. Evidence that is received by a radio transmission from an informant is admissible because it is not a search.2. Smith - Installation and use of a pen register is not a search within the meaning of the 4A because there is no expectation of privacy when one dials phone numbers and transmits that information to a phone company. 2. Knowing exposure to the public 1. Ciraolo - There is no reasonable expectation of privacy from an aerial view of plants in ones yard that are guarded from view by a 12 foot fence, therefore there is no search. 2. Knotts - Police put a tracking device on a container that was with a person in order to find out where he was. It did not matter that police had a tracking device because the information could have been obtained by visual surveillance from public places. 3. No societal interest in protecting privacy of matters/information 1. Oliver - There is no societal interest in protecting the activities that happen in open fields and they are usually open to the public anyway. 1. The four variable pertinent to determine whether area is curtilage:1. Areas proximity to the home2. Existence of enclosure 3. Nature of the use of the area4. Precautions taken to exclude others4. Nothing legitimate could be learned by the government 1. Jacobsen - Court found that the 4A did not protect from a government agents reopening of a package that had been opened by a FedEx employee who was a private party, nor did it find a violation in a chemical field test that identified the substance in a package as cocaine.2. Place -

Jones-Jardine Alternative Threshold Doctrine

What Constitutes a SEARCH?

A Search Occurs When:

1. Government physically intrudes into a constitutionally protected area (i.e., home, curtilage) 2. In order to obtain information AND3. Does obtain information

If a SEARCH does occur and the search is UNREASONABLE then it is in violation of the 4th AMENDMENT. Thus, UNCONSTITUTIONAL.

UNIT TWO

Unreasonableness and Probable Cause

RULE:Probable Cause is the substantive showing that the 4th Amendment ordinarily requires for a warrant and for a warrantless search or seizure to be reasonable.

LEVEL OF PROBABILITY:Probable Cause = FAIR PROBABILITY (standard of probability) (Gates)

PC TO ARREST:SHOWING of fair probability person to be arrested committed/is committing offense

PC TO SEARCH:SHOWING of fair probability item properly subject to seizure by government is in the place to be search (or will be there at time of the search). Note: Item can be contraband, stolen foods, evidence or instrumentalities of crime

STALENESS and PC:PC to SEARCH can go stale - i.e., information that once established a fair probability that an item was in a place can be insufficiently current to establish the required fair probability at the relevant time.

PC Based on Informants can furnish the basis for a PC finding Assessment of hearsay-based PC showings:1. Totality of the Circumstances governs hearsay based PC showings1. Gates Abandoned strict Aguilar-Spinelli two prong test for totality of circumstances including:1. How the informant obtained their information (underlying circumstances)1. Why the informant is reliable (credibility prong)1. And any other indicia of reliability like corroboration of testified fact. 1. Assessment of reliability of canine sniff alert - whether it provides PC - is governed by same Totality approach 2. Harris -

PRETEXTSPC is determined objectively officers actual/subjective motivations/intentions do not matter as long as known facts provide PC for search or seizure performed (Whren)

UNIT THREE

Unreasonableness and Warrants

[A] Warrant Requirement For Searches

1. FUNDAMENTAL 4A RULE:1. Searches without warrants are unreasonable, subject to exceptions1. Johnson2. Katz2. REASONS for Search Warrant RULE:1. to prevent unjustified searches 2. to limit the scope of justified searches3. to prevent after-the-fact justification of unreasonable searches due to hindsight1. Johnson 2. Katz

[B] Warrant Requirement For Seizures of Persons (Arrests)

1. Arrests in public places for felonies based on PC are reasonable without warrants1. Watson2. Arrests for even very minor criminal offenses committed in officers presence is reasonable under the 4th Amend. 1. Atwater3. A person arrested without warrants is entitled to a prompt judicial determination of probable cause as a condition for any significant pretrial restraint on liberty. (Gerstein) 48 hours is presumptively sufficiently prompt. (McLaughlin)

4. When person is arrested and detained for any criminal offense and assigned or admitted into the general jail population, a strip search and body cavity inspection is generally reasonable without any specific showing. (Florence)

5. When a person is arrested for a serious criminal offense and detained in custody (for any period), taking and analyzing a cheek swab of his/her DNA for the purpose of identifying the arrestee is reasonable under the 4A. (King)

[C] Issuance, Content, and Execution of Warrants (See Lecture Outline)

1. Issuance1. No warrant shall issue, but upon probable cause known as the Warrant Clause of 4th Amendment.2. Anticipatory Warrants are permissible; special definition of PC for requires two showings (Grubbs)1. A triggering condition before warrant is issued (Fair probability)1. The occurrence of said triggering condition for warrant to be executed (Fair probability)3. Warrants based on false information may be invalid4. Magistrate must be neutral and detached 2. Content1. Search Warrants1. Particular description of places to be searched, 1. Persons or things to be seized is required by 4A text2. Arrest Warrant2. Must specify the name of the defendant or otherwise describe the defendant with reasonable certainty3. Purposes of particularity requirements1. Limit the privacy intrusion1. 3. Execution1. Knock-and-Announce Requirement (Wilson)1. Audibly knock or otherwise make law enforcement presence known1. Announce the identity of the executing officers (Its the Police!)1. Announce the purpose of the executing officers (We have a warrant!)1. Delay for a sufficient period of time (30 sec)to allow occupant to open the door. In Banks, 15 seconds was sufficient. 4. Exception: When there is reasonable suspicion that knock and announce would be dangerous, futile or inhibit effective law enforcement. (Richards)2. SCOPE: search can be excessive in place, time, or due to presence of third-party not in aid of execution

4. Seizures Pursuant to a Warrant1. What-Items specified and particularly described in the search warrants maybe see as well as non-described items that they see in plain-view2. Where- Anywhere on premises that the item particularly described in the warrant may be hidden.3. Intensity- Dictated and limited by the nature of the items being sought under the warrant4. Damages- Police may damage or destroy property as much as reasonably necessary to effectuate search.5. Duration- As long as reasonably necessary

UNIT Four

Exception To The Warrant Rule

[A] Plain View Exception

1. Scope:a. Lawful access to objectb. Immediately Apparent Incriminating (PC to seize)c. 2. Scope: Allows Seizure of object (and any incidental search that occurs)

3. Justificationa. Inconvenient and possibly dangerous to obtain warrant to seize

4. Cases:a. Horton: Got rid of inadvertence requirement. The warrant authorized him to search only for the rings. Although he didnt find the rings, the officer did find weapons in plain view. He admitted that he was interested in finding things other than the rings, so his finding the weapon was not inadvertent. Even though inadvertence is a characteristic of most plain view seizures, it is not a necessary condition.b. Hicks- Although the police were probably entered an apartment to search for evidence relating to a shooting the observed expensive stereo components which they moved to observe the serial numbers. The Court invalidated the search holding that serial numbers were not immediately apparent before the police moved the components to observance the serial number. Moving to observe was a search for which the police did not have PC.

[B1] Search Incident to Legal Arrest

1. Showing: A lawful arrest

2. Scope: a. Location:i. Arrestees person andii. Area w/in arrestees immediate control (at the time of arrest)b. Time:i. Not remote in time/ must be contemporaneous w/arrest

3. Justifications:a. Remove weapons (prevent escape/ resistance, threat to officer safety.b. Seize evidence (prevent destruction/ concealment of)4. Cases:a. Chimel- Defendant arrested when he got home. Police arrested him there and searched entire house and drawers. Court held that police may have only searched the room in which he was arrested in. But may not search drawers or containers in the room which he was arrested in. b. Robinson- D Arrested for driving w/o license. Police conducted a search incident to arrest and found on the person a cigarette pack that contained heroin.

[B2] Search Incident to Legal Arrest (Car)Whats an Arrest? i. When police take a suspect in custody in order to bring charges.

1. Showing:i. A lawful arrestii. Of recent occupant of vehicleiii. Reasonable to believe evidence relevant to offense of arrest might be found in vehicle.1. Scope a. Locationi. Passenger compartment of vehicle (including containers)b. Time: i. Not remote from; contemporaneous w/arrest.

2. Justificationsi. Remove weapons (prevent escape, resistance, threat to officers)ii. Seize evidence (prevent destruction/ concealment)

4. Cases: Gant- Search of jacket in car was unreasonable because he was arrested for driving w/suspended license and search of car could not have produced evidence of the crime of driving w/out license. Belton- Pulled over speeding car, smelled marijuana and arrested occupants. Police searched the car and found a jacket which contained that cocaine. Court held that car was w/in immediate control (Chimel) and could be searched.

[B3] Monitoring Arrestee Entries1) Showing:a. Lawful Arrestb. Request by arrestee to enter place2) Scope:a. Where arrestee goes/ may stay at elbow of3) Justification:a. Safety of officersb. Integrity of arrest- to prevent escape4) Cases Chrisman- Student request to enter dorm room. Court held it was constitutional.

[B4] Home Entries to Arrest Felons

1) Showing:a. Valid Arrest Warrant for felonb. Reason to Believe arrest is in home (split if this more or less than probable cause)2) Scope:a. Interest- Home privacy interest of subject of arrest warrantb. Location: Wherever reasonable to believe arrestee could be home. 3) Justification:a. Uncertaini. Possible exigency of mobility plus the fact that the privacy interest of a suspected felon is less worthy of protection.4) Cases: Payton- Police broke into Ds home and found a gun in plain view. Court held search was unreasonable because they did not have a warrant.

[C] Exigent Circumstances

Types of Potential ExigenciesA. Hot pursuit- To apprehend/ capture/ prevent escape of suspected criminala. Hayden- Police received reporting armed robbery and that suspect was in a particular house. Police entered the house w/consent and found fruits and instrumentality of crimeb. Santana- D was standing in the doorway to the house when the police attempted to arrest her (PC in public- Watson), she retreated into her home which created the exigency of hot pursuit. B. Prevent danger/ harm to life/ safety from suspected criminalsa. See also HaydenC. Prevent evidence loss/ destruction of evidencea. Welsh- B/C Wisconsin had categorized first time DUI as non-criminal civil forfeiture, court concluded that an exigency based on the destruction of evidence (BAC) could not justify warrantless entry into home.b. Vale- Police were doing surveillance on Ds home. Cops witnessed a drug deal between D and other person. Cops arrested D outside of his home and told him they were going to search his home to prevent co-conspirators from destroying evidence. Found narcotics. Court held that an arrest on the street does not provide its own exigent circumstances to justify warrantless search of arrestees home. c. King- Police followed a suspected drug dealer into apartment and smelled marijuana outside the door. Police knocked and heard flushing sounds whereupon they entered the unit and found drugs. Court held search was reasonable under exigency because they did not create the exigency by violating or threatening to violate 4th Amend.d. McNeely- The fact that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency to justify an officer to order a blood test without obtaining a warrant from a neutral judge.D. Emergency Aid- Either to prevent serious injury to occupant or to render aid to seriously injured occupant.a. Brigham City- upheld a warrantless entry into a home after police witnessed a fight that involved four adults and a juvenile. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.b.

1) Showing:a. Probable Cause to searchb. Exigency (Sufficient need to act to prevent harm)c. Officers DID NOT CREATE EXIGENCY BY VIOLATING or THREATENING TO VIOLATE 4th Amendmentd. Not too minor offense/interest. (At least for homes)2) Scope:a. Locationi. Wherever PC and Exigency justifyb. Timei. As long as PC and Exigency justify3) Justification:a. To avoid harm to govt/Society interests that could occur if officers delay search in order to obtain warrant.4) Cases

[D] Booking Searches

1. Showing:a. Lawful arrestb. Arrestee to be incarcerated/jailedc. Inventory conducted according to Standard Police Procedures2. Scope: a. Person of Arresteeb. Personal Belongings on Arrestee3. Justifications:a. Prevent personal items from being stolen while the arrestee is in the jail populationb. Help protect police against false claims of theftc. To prevent the arrestee from introducing contraband into the jaild. To better ascertain a suspects identity4. Cases:a. Lafayette- Officer arrested D for disturbance of the peace. He took the D to the station and found drugs. It is not unreasonable for police, as a part of a routine procedure incident to incarcerating an arrested person to search any container or article in his possession, in accordance with established inventory procedures5. Justifications:a. Prevent personal items from being stolen while the arrestee is in the jail populationb. Help protect police against false claims of theftc. To prevent the arrestee from introducing contraband into the jaild. To better ascertain a suspects identity

[E] Automobile Exception

1. Showing:a. Probable Cause to searchb. A Vehiclec. That is readily mobiled. And being used for transportation (possibly not if used sufficiently as a residence)e. If stopped in transit, parked on public property, or parked on private property of another (Possibly not if parked on private property or curtilage if individual objecting to search of vehicle)2. Scope:a. Location of vehicle: On site or at police stationb. Location IN vehicle: Wherever in vehicle probably cause extends, including ALL containers in vehicle to which probable cause extendsc. Time/Duration of Authority: Seach may be conducted immediately or lateras long as delay not indefinite and does not adversely affect privacy or possessory interests3. Justifications:a. Exigency created by mobility &b. Diminished privacy expectations in vehicles due to pervasive government regulation4. Casesa. Chambers- D was riding in an car at the time of his arrest, the vehicle was searched at the police station rather than at the scene. The court upheld the search even though the car was immobilized and it would have been relatively easy to obtain a warrant. Given the existence of probable cause to search, police may choose to search later at the police station or elsewhere.b. Chadwick- D were suspected drug traffickers. Had a suitcase with drugs in the trunk of a car. Court held the footlocker search was not justified under the "automobile exception," since a person's expectations of privacy in personal luggage are substantially greater than in an automobile. The footlocker's mobility did not justify dispensing with a search warrant, because there was not the slightest danger that it or its contents could have been removed before a valid search warrant could be obtained.c. Carney- Search of mobile home did not violate 4A when vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. First, the vehicle is readily mobile, and, second, there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways. d. Acevedo- ASK!!!!!!!!!!!!

[E] Inventory Exception

1. Showing:a. Lawful impoundment of vehicleb. Impoundment decision based on Standardized Criteriac. Inventory conducted according to Standard Police Procedures2. Scope:a. Areas of vehicleb. Containers inside vehicle (if authorized by standard procedures)3. Justificationsa. Justified by the need to protect an owners property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger. (Opperman)4. Casesa. Opperman- Ds car impounded for multiple parking violations. Police conducted inventory of the vehicle which revealed marijuana in the glove box. Court held reasonable under 4Ab. Wells- The court concluded that an inventory search of a locked suitcase in the trunk of an impounded car violated the 4th Amendment because the highway patrol had no policy governing the opening of closed containers in inventory searchesc. Bertine- D arrested for DUI. Car was inventoried before it was impounded and police searched a backpack that contained drugs. Court held the search was reasonable because it was made in a good-faith effort to inventory according to departmental procedures.

ehicle must have been lawfully impounded5. Cannot be done for the sole purpose of criminal investigation6. Courts prefer inventory searches conducted consistently according to police department guidelines. (Wells)

[F] Consent

1. Showinga. Consent givenb. Voluntarilyc. By person with Authority to consent2. Scope:a. Wherever consented to: objective reasonableness standard when not explicitb. To determine whether the consent was voluntary, courts apply a totality of circumstances test. Factors includei. Vulnerability of defendant.ii. Police demand to search, drawing of weapons.iii. Knowledge by D that they can refuse, although police not required to explain so.3. Justificationsa. Unclear: People may choose not to exercise Fourth Amendment rights4. Cases:a. Bustamonte- Police performed a consent search of a car that had been stopped by for traffic violations. Passengers consented to and assisted with search. The Court held that consent searches are valid but that the state bears the burden of showing that the consent was in fact freely and voluntarily given. Consent does not exist when the suspect is coerced. Ini. To determine consent, court looks at totality of the circumstances including suspects peculiarities and police coduct (guns drawn). b. Jimeno- Consent extends to containers in cars unless otherwise explicitly limited in scope. The officer had informed respondents that he believed they were carrying narcotics and that he would be looking for narcotics in the car. The court held that it was objectively reasonable for the police to conclude that the general consent to search respondents' car included consent to search containers which might bear drugs.c. Randolph- Held that wifes consent to search did not validate the search in the face of the husbands objections

[F2] Authority to Consent 1. Showing:a. Voluntary Consentb. Reasonable to believe person has authority to consent2. Scope:a. Same as consent searches3. Justifications: a. 4A demands only responsible judgments ie. that officers be reasonable

4. Cases:a. Matlock- Police went to Ds house after he was arrested and asked wife for consent to search. She agreed. Court held for 3rd parties to be able to consent, they must have common authority i. Which includes mutual use of the property by persons generally having joint access or control for most purposes so that it is reasonable for the cohabitant to be able to consent in his own right and that the others have assumed the risk that one of their members might permit the common area to be searched. ii. When finding common authority, police must make a reasonable judgment regarding the facts before them.1. Police conduct is reasonable when they enter a dwelling based on a reasonable but erroneous belief that the person who has consented to their entry is a resident of the premises.2. Objective standard: Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? (Rodriguez) b. Rodriguez- Girlfriend who claimed she had common authority over property b/c she lived there for months, had a key, claimed to have property in apt. In fact she had moved out a month prior, stolen the key, was not on the lease and did not pay rent. i. Objective standard: Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?

UNIT Five:The Balancing Approach To The Fourth Amend Reasonableness

[A2] Seizure of Person Standard

A seizure of a person occurs when an officer EITHER:1. Applies ANY PHYSICAL FORCE to the person, even touching slightly, for the purpose of controlling/detaining the person (Hodari D.)

OR

2. (a) Makes a sufficient SHOW OF AUTHORITY that is, a reasonable person would not have felt free to leave or a reasonable person would not have felt free to decline the officers request or otherwise terminate the encountera. Cases:i. Mendenhall- When in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Circumstances include: Presence of multiple officers, officer use/show of weapons, physical touching. ii. Bostick- Bus passengers not necessarily seized because they choose not to disembark from bus. His belief that he was not free to leave was not due to the conduct of the officers.

AND(b) The person SUBMITS/YIELDS to that show of authority (Hodari)

3. Cases: a. Hodari- Suspect throws crack rock as he fled from police. Court held he was not seized when he abandoned the coke because although police made sufficient show of authority, Hodari had not yielded to that showing of authority when he threw the rock.

[A3] The Showing Needed for Stops, Frisks

1. Investigative stop/detention complies with 4A when an officer has a Reasonable Suspicion that the person stopped/detained is engaged/engaging in criminal activity.a. Casesi. Wardlow- D was in high drug-crime area and fled when he saw the police. Police caught him found a .38 caliber gun on him. Court held that officers were justified in suspecting that defendant was involved in criminal activity based on his presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing the police. Frisk justified due to officers experience that narcotics involve weapons.ii. White- An anonymous tip led police to do a Terry Stop of D. A tipster said she would be leaving in a certain kind of car at a certain time to a specific location. Some but not all of her future behavior was confirmed by police. A Terry stop based on an anonymous tip which is sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity is not violative of the 4th Amendment. iii. 2. A frisk/weapons pat down requires a reasonable suspicion that the person is armed and dangerous.a. Wardlow frisk justified due to officers experience that narcotics involve weapons.b. Terry- Police may stop a person if they have a reasonable suspicion that the person has committed or is about to commit a crime, and may frisk the suspect for weapons if they have reasonable suspicion that the suspect is armed and dangerous, without violating the Fourth Amendment prohibition on unreasonable searches and seizures. Supreme Court of Ohio affirmed.

3. The RS standard is less demanding than probable cause (which is fair prob) and requires considerably less than a preponderance of the evidence, but does require a minimal level of objective justification more than an inchoate or unparticularized suspicion or hunch of criminal activity.a. Wardlow- RS found because suspect was in an area known for drug trafficking and made headlong flight when he saw officers. b. White- See above

4. The information that supports a RS can be lesser in quantity or content or in quality/reliability than the information required to demonstrate PC. a. Arvizu- Under the totality of the circumstances, reasonable suspicion supported a border patrol agent's decision to stop a motorist traveling on an isolated road in a forested area of southern Arizona near the Mexican border, even if each of the reasons the officer gave for the stop, viewed in isolation, had an innocent explanation.

5. To determine RS, the totality of the circumstances must be evaluated, and those circumstances must be viewed together, not judged in isolation from each other.a. Arvizu- Under the totality of the circumstances, reasonable suspicion supported a border patrol agent's decision to stop a motorist traveling on an isolated road in a forested area of southern Arizona near the Mexican border, even if each of the reasons the officer gave for the stop, viewed in isolation, had an innocent explanation.

6. A RS can exist even though no one fact describes ongoing criminal activity i.e. a number of innocent fact in combination can support a RS.a. Sokolow- (1)Court found that a reasonable suspicion did arise from s conduct when the (1) paid $2100 for two plane tix from a roll of $20 bills; (2) traveled under a false name; (3) went to Miami known to be a drug source city; (4) stayed in Miami for 2 days although round trip flight takes 20 hours; (5) appeared nervous during flight; and (6) checked none of his luggage.

7. To support a RS of criminal activity, a tip/hearsay must have sufficient/moderate indicia of reliability.a. J.L.- Anonymous phone call said man at bus stop wearing plaid shirt had gun. One of the guys fit the description. That alone was not enough for reasonable susp because the tip concerning J.L. did not provide any predictive information and therefore left the police w/o means to test the informants knowledge or credibility.8. Although factors in a drug courier profile can support a RS, a judge must make an independent evaluation of whether they do and must not simply defer to officers judgment or reliance on factors in a profile. 9. An investigative stop/detention for a COMPLETED felony is permissible based on a RS, it is undecided whether such a stop is permissible for less serious past crimes.a. Hensley- Police made a stop of man based on a wanted flyer issued by a neighboring police department. Court held that Terry stops to investigate past FELONIES was justified by strong govt interest in solving crimes and bringing offenders to justice.

[A4] The SCOPE of Stops, Frisks and Sweeps

A. Stops/Detentions/Seizures

1. Movement of Suspect:a. May not take suspect into police station (but might be allowed if judicial order)b. Movement to other places uncertainc. Cases:i. Hayes- Cops suspected in a rape case but did not have PC. They went to his home and asked him to come to the station.He didnt want to go.Police said they would arrest him if notso he went. Court held Police can not take someone to the police station with only reasonable suspicion (even briefly).It is an arrestnot a Terry stop.2. Time:a. No bright line brevity limit question is whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Must consider following factors- Length and intrusiveness of the stop & the law enforcement purpose served by the stop and the time needed to reasonable effectuate that purpose. i. Sharpe- Police saw two vehicles weighed down and suspected drug smuggling. Police each pulled the car over and held one car until the other officer arrived- approx. 15 min. Court held that the detention was reasonable. 3. Identification Methods:a. Fingerprinting: may take fingerprints if reasonable basis (dictum in Hayes); probably other means of identifying e.g. voice, handwriting samplesi. Dictum in Hayes - A brief detention in the field for the purpose of fingerprinting, where there is only a reasonable suspicion not amounting to PC, is permissible under the 4A.b. Name: Generally may require suspect to disclose name- apparently not if not reasonably related to justification for stop.i. Hiibel- A under investigation for a suspected assault, refused to respond to an officers request for ID, the officer arrested him. Court held that it was not unreasonable for officers to require a suspect who is being lawfully detained to identify himself.4. Vehicle Occupants:a. Automatic removal of drivers and passengers allowed/reasonable5. Independent Seizures of Effectsa. Limited seizure of effects allowed if RS of narcotics (Place); uncertain whether can be justified if RS of evidence of other crimes, but indication must be special operational necessities for seizure on less than PC (Hicks)i. Place- NY DEA agents were informed by MIA DEA that suspect was traveling there and suspected of carrying narcotics. He was stopped in NY. DEA waited for 90 mins until a drug dog came and sniffed positive then they held the bag over the weekend to obtain warrant. Court held that the 90-min detention of Places luggage was too long especially given that the agents have advanced notice of his arrival and could have prepared for the additional investigation.ii. Hicks---WHY IS IT HERE????6. OVERALL QUESTION (for stops/detentions of persons)a. Whether seizure was a properly limited investigative detention or a de facto arrest which depended on the quantitative and qualitative intrusions upon a suspects freedom of movement.i. Sharpe- Police saw two vehicles weighed down and suspected drug smuggling. Police each pulled the car over and held one car until the other officer arrived- approx. 15 min. Court held that the detention was reasonable.ii. Hayes- Police asked D to go with them to HQ to be fingerprinted. Court held that the seizure amounted to an arrest and not just a terry stop. b. STANDARD: Whether a reasonable person would feel that he/she was subjected to restraints comparable to those associated with a formal arrest (no 4A case; supported by seizure standard and standards for custody under Miranda)

SCOPE OF:

B. FRISKS/WEAPONS PATDOWNS/SEARCHES (and SWEEPS)1. PERSON: May conduct pat down of OUTER CLOTHING of suspect for weapons (guns, knives, clubs); may remove weapons felt (Terry)a. May not search more extensively than needed to detect weapons; more intrusive exploration of outer clothing is unreasonable (Dickerson)b. Casesi. Terry- Officer patted down the outer clothing of s. He did not place his hands in their pockets until he felt weapons, and then he merely reached for and removed the weapons. The officer confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once discovered.ii. Dickerson- 2. VEHICLES: May conduct AREA SEACH OF PASSENGER COMPARTMENT, including containers that could contain such weapons a. Casesi. Long- swerved off the road and cops saw him. did not respond to request for DL and registration. Cop saw a hunting knife in car and flashed a light into the car to search for other weapons but found Bud. Arrested for possession and opened his unlocked trunk and found 75lbs of Bud. Court held that the search of the passenger compartment of an automobile is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably may gain immediate control of weapons.3. QUESTION: May effects/containers carried on a person ever be patted down or opened?4. HOMES: Limited protective sweeps of homes for dangerous persons permitted (Buie) (Not Terry Frisk)a. Casesi. Buie- Police were executing warrant for D at his home when he emerged from the basement. Police arrested him and went into the basement to make sure nobody else was in there that could launch an attack. Held that it was reasonable to make a cursory inspection of the area as search incident to arrest. i.e. can not look into coat pocket in a closet.

UNIT Five:Due Process- Coerced Confession Doctrine

1. The DP Clause includes a right against conviction based upon a coerced or involuntary confession.

2. Under the DP Clause, a confession may not be introduced at trial if it is the product of an overborne will.

3. To determine whether a confession is coerced or involuntary, the totality of the [relevant] circumstances must be considered - including facts that put pressure upon the individual to confess and facts about the strength/weakness of the particular individuals will.

4. Official coercive . . . activity is a necessary predicate to the finding that a confession is not voluntary under the Due Process Clause. The individuals mental condition or state of mind alone cannot render a confession involuntary for DP purposes.

5. Cases:a. Ashcraft- Court held that the confession was not made voluntarily. Ashcraft had been held incommunicado for thirty-six hours, during which time without sleep or rest, he had been interrogated by relays of officers and investigators -- showed a situation inherently coerciveb. Spano- D confessed to a friend who was also a police officer. The friend told his superiors. D was brought in and refused to answer questions without his lawyer. His requests to see his lawyer were denied. Ds friend tried to get him to confess by lying and saying his job was on the line. D eventually confessed without his lawyer. A confession where D was denied access to attorney and persuaded by a childhood officer friend to confess after D was already indicted is not voluntary, is not admissible. c. Connolly- D approached officer on the street to confess to a crime. The next day, he seemed disoriented and was found incompetent to assist in his own D. Later he was competent again. At trial, an expert testified that he confessed due to his mental psychosis. D argued that the confession was not voluntary. Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the 14th Amendment. Here, the taking of respondents statement and their admission, is not a violation.

UNIT Seven:Miranda Summary

A. The Miranda Decision & Its Constitutional Basis1. Miranda is based on 5th Amendment Privilege against Compulsory Self-Incrimination.

2. Extended 5th Amendment privilege beyond formal court proceedings, applying it to informal compulsion by police.

3. Held that custodial interrogation gives rise to inherent compulsion and that as a result statements are barred by 5Ai.e. admission would violate 5A rightunless steps are taken to dispel/combat compulsion.

4. Warnings and waiver are required to dispel/combat/overcome compulsion and render statements produced by custodial interrogation admissible.

5. Also, 5A requires right to consult with counsel before and have counsel present during custodial interrogations.

6. If suspect indicates they wish to remain silent, questioning must cease; if states he wants counsel, interrogation must cease until counsel is present.

7. Later decisions explain Miranda as prophylactic- as based on a likelihood of compulsory /unacceptable great risks of compulsion, which gives rise to PRESUMED compulsion, not actual compulsion. Miranda provides enlarged protection of 5A rights (more than the 5A right mandates) in order to guard against or prevent 5A violations.

8. Although Miranda is a constitutional decision, is constitutionally based provides protections that are constitutionally required (in the absence of a fully effective equivalent), the admission of a statement obtained in violation of Miranda does not violate the 5A right of a suspect.9. Cases:a. Dickerson- Court held Miranda was a constitutional decision

B. The Public Safety Exception (Quarles)1. There is a public safety exception to the requirement of warnings and waiver as prerequisites to admissibility of statements resulting from custodial interrogation.2. Applies to questions reasonably prompted by a concern for the public safety.3. Questions about how likely threat to public safety must be, what kinds of harm are threats to public safety, whether threat must be immediate, whether exception applies to other Miranda requirements for admissibility. 4. Based on understanding of Miranda a based on presumed, not actual compulsion, on Miranda as prophylactic i.e. designed to prevent potential 5A violations by providing enlarged protection for the privilege. No possible exception if statements actually compelled/coerced because admission would violate 5A right, which has no exceptions.5. Casesa. Quarles- D, who was known to have a gun, ran when he saw police and disappeared from site for a short period. Police seized him and frisked him and found an empty gun holster. The officer asked D where the gun was before reading him his rights. D answered and was then read his rights. There is a public safety exception to the requirement that Miranda warnings be given before a suspects answers may be admitted into evidence, which does not depend upon the motivation of the individual officer involved.b. Dickerson v US- Court held Miranda was a constitutional decision which could not be in effect overruled by an act of Congress; Miranda and Miranda's progeny in the Supreme Court thus governed the admissibility of statements made during custodial interrogation in both state and federal courts.

C. Custody1. Requirement: Miranda applies only when a suspect is in custody2. Definition: Custody exists when a suspect is subjected to formal arrest or its functional equivalenta. Functional Equivalent or Formal Arrest: When reasonable person in suspects position would have understood/believed his/her freedom of action has been curtailed to a degree associated with a formal arrest or that hes has been subjected to restraints comparable to those associated with a formal arrest.b. Casesi. McCarty- D was pulled over for suspicion of DUI. Officer asked if he was under the influence. He said he had had alcohol and some pot and stated that he was barely under the influence. D wanted to have his statements suppressed because he was not read his rights. Motion to suppress denied because he was not in custody (but was interrogated.)1. The standard: Would a reasonable person in Ds position feel that they were restrained to the degree of a formal arrest? Look at where and why they were stopped.ii. JDB- 13 yr old D was pulled out of class into a conference room to be questioned about break ins. The was not given any Miranda Warnings although he was questioned for 30-45 minutes. Court held that age is an objective factor that affects how a reasonable person would perceive his or her freedom to leave.iii. McCarty- 3. Functional Equivalent or Formal Arrest: When reasonable person in suspects position would have understood/believed his/her freedom of action has been curtailed to a degree associated with a formal arrest or that hes has been subjected to restraints comparable to those associated with a formal arrest.a. Casesi. McCarty-4. Intent: Officers actual intent/state of mind is irrelevant unless expressed/conveyed to suspect.5. Attributes of Suspect: Objective reasonable person standard for custody must take into account AGE of minor; prior history with law enforcement is not relevant.a. Casesi. JDB- See above Age is a factor that affects whether a reasonable person would feel free to leave.ii. Yarborough- Court held that prior history with law enforcement was not relevant in determining if felt free to leave b/c officers do not always know a suspects prior criminal history. 6. Prison: Inmates NOT in custody simply because in prison and is not per se in custody because isolated from general population/questioned in private and/or questioned about crime outside prison. Apparently, in custody if additional restraints on freedom create an environment with the same inherent coercive pressure as the type of station house questioning at issue in Miranda.a. Casesi. Howes- Being in prison itself was not enough to constitute Miranda custody. Factors that leaned toward finding the inmate's questioning was custodial were offset by others: he was told at the outset, that he could go back to his cell whenever he wanted, was not physically restrained or threatened and was not uncomfortable, was offered food and water, and the door to the conference room was sometimes left open. Objectively reasonable person would have felt free to leaveii. Shatzer- While D was incarcerated in 2003, he was questioned in 2003 about a crime that happened before he was in jail. Invoked right to counsel. In 2006, a different detective reopened the case and D made inculpatory statements. Court held suppression of evidence not needed as it was more than 2 weeks between Miranda custody. 2 weeks?

D. Interrogation1. Requirement: Miranda Applies only when a suspect is subjected to interrogation.2. Definition: Interrogation is Express Questioning or Functional Equivalent of Express questioning by a person known to be a state agent.a. Casesi. Innis- See belowii. Perkins- Fellow inmate of D gave police information that D was involved in a specific unsolved murder. Police put an informant and an agent in the cell block with D and collected incriminating evidence used to charge D. An undercover law enforcement officer is not required to give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response.1. Only government agents that are known to be government agents need to read Miranda, there is no basis for feeling of pressure when they dont even know the person works for the state.

3. Functional Equivalent of Express Questioning: Words or action on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.a. Casesi. Innis- Several officers, at several different times, read D his Miranda warning and D requested to see an attorney. While D was in custody, being transported to the police station, one officer commented to another what a shame it would be if a child found a weapon and killed herself. D interrupted and offered to tell police where the gun was. He was again read his rights and decided to show the place of the weapon anyway. Interrogation under Miranda refers not just to questioning, but actions or words on the part of the police that elicit statements that they should have known were reasonably likely to elicit an incriminating response. D was not interrogated within the meaning of Miranda.4. Officers Intent/Suspects Attributes: Officers intent to obtain statements/responses is not required or determinative; suspects vulnerabilities known to officer are relevant.a. See Innis above

E. Warnings1. Requirement: Miranda Warnings are a absolute prerequisite2. Variation of Wording- Warnings need not be given in the exact language prescribed in Miranda. Are sufficient if the warnings reasonably convey the rights in the original warnings.

F. Waiver1. Requirement: Officer must obtain a knowing and voluntary waiver of Miranda rightsa. Berghuis- A suspect's silence during interrogation does not invoke his right to remain silent under Miranda v. Arizona. The invocation of that right must be unambiguous, and silence is not enough to invoke it. Voluntarily and knowingly responding to police interrogation after remaining silent constitutes a waiver of the right to remain silent, provided that a Miranda warning was given and the suspect understood it.b. Butler-ASK TOMKO2. Express Waiver: A waiver need not be expressly made orally or in writing, but can be inferred from the circumstances. Where a warning is given, and understood by a suspect, the suspects uncoerced statement establishes an implied waiver.a. Adad3. Voluntary: Waiver must not be coerced by the government in totality of circumstances--- including pressures on and vulnerabilities of suspect.a. Connely- See pg 18- Schizophrenic man walked up to officer and confessed to murder. It was admissible because the govt did not coercive force the compulsion was a product of Ds own psychosis.4. Knowing: Must be aware of rights states in warnings; do not need to knows any additional information such as fact lawyer is trying to contact him.a. Burbine- Respondent confessed to and was convicted of the murder of a young woman. D appealed, claiming his confessions should have been suppressed because the police deceived him by failing to inform him that a public defender had called to speak with him while he was in custody. The Court found that respondent at no time requested an attorney, and events occurring outside the presence of respondent and entirely unknown to him had no bearing on his capacity to comprehend and knowingly waive his rights. The Court held that once a person knowingly and voluntarily waived his rights, the waiver was valid as a matter of law.

G. Invocation of Right To Remain Silent1. Requirement: If suspect invokes right to remain silent, interrogation may be resumed only if officers Scrupulously honor the right to cut off questioning. Waiver cannot be valid unless this additional safeguard is satisfied.2. Clear Invocation: Suspect must clearly, unambiguously invoke right to remain silent.a. Thompkins- See up- silence alone is not enough to invoke right to remain silent3. Scrupulously Honor Standard:a. Time: More than momentary cessation of a momentary respite is required. How long is sufficient is uncertain.b. Other Factors: Question is weather officers have respected assertion of right to remain silent or undercut suspects decision to remain silent. Factors relevant include: amount of time (over minimum) whether fresh Miranda warnings given whether same or different crime, place, or officers. Any other factor that show respect for versus undercutting of decision.c. Initiation by suspect or 14-day break in custody: Probably sufficient (see invocation of counsel)d. Mosley- Defendant was arrested in connection with the investigation of robberies. After being advised of his rights, defendant stated that he did not want to talk about the robberies. Defendant was thereafter questioned at another police station about a homicide and confessed to the murder. The Court concluded that when the questioning was for different crimes, by a different police officer, in a different room, after an extended period without questioning, the request to remain silent had been scrupulously honored.

H. Invocation of Right to Counsel1. Requirement: If suspect invoked right to counsel, officers may not interrogate unlessa. Counsel is made available (i.e. present during interrogation)b. Suspect initiates further communications, exchanges, conversations ORc. There is at least a 14-day break in custody. i. See Shatzer on pg 20. d. Cases:i. Edwards- After he was arrested and read his Miranda rights, petitioner requested an attorney. Questioning ceased, but detectives from the same police department returned the next day and again interrogated petitioner. Petitioner confessed to the crimes during the second interrogation. Court held the confession inadmissible because police initiated that conversation, counsel was not present at the second interrogation, and D had not validly waived his right to counsel.

Waiver cannot be valid unless one of these additional safeguards is satisfied

2. Clear invocation: Suspect must clearly, unambiguously invoke right to counsel. Must be sufficiently clear that a reasonable police officer would understand it to be a request for an atty. a. Davis- During questioning, D said maybe he should talk to a lawyer. The Interrogator said he could have a lawyer if that is what he was asking for. D said he wasnt asking for a lawyer. Later, D asked for a lawyer and questioning stopped. 3. Initiation: Routine statements/inquiries are not initiation. Suspect must evince a willingness and a desire for generalize discussion of the investigation. a. Alternative: Suspects words/acts must represent a desire to open up a more generalized discussion relating directly or indirectly to the investigation.i. Bradshaw- D told police he wanted to speak to an attorney, then asked the officer whats going to happen to me. The officer reminded him he requested an attorney and reminded him that if he talks, anything he says will be used against him. General conversation followed and D agreed to a lie detector test. The Rehnquist plurality concluded that after initiating further communication, D validly waived his right under Miranda.

4. Insufficient Safeguards: Fact that are different officers and/or that interrogation is about different crime and/or that officers are unaware suspect invoked right to counsel and/or suspect has consulted with a lawyer after invocation are not bases for permitting officers to obtain a waive and interrogate the suspect.a. Minnick- D escaped from prison and arrested at a home were residents were killed. asked for lawyer when questioned. spoke to attorney. FBI agents and local police then persistently tried to persuade to waive his rights. resisted, but eventually submitted to interviews w/o attorney present. Prisoner was convicted. Court held that his statements were taken in violation of his right to counsel under the 5A. The requirement that counsel be "made available" to the accused refers not to the opportunity to consult with an attorney outside the interrogation room, but to the right to have the attorney present during custodial interrogationb. Roberson- was arrested for burglary at the scene of the crime. was read rights and requested attorney before answering questions. Three days after arrest, a different officer sought to interrogate him about a different burglary and obtained an incriminating statement. Court held a who invokes a right to counsel may not be questioned by a different officer about a separate offense unless the suspect initiates further communications and even if the 2nd officer is unaware of suspects invocation of right to counsel.

UNIT 10:Massiah Right to Counsel Summary

A. Basic Doctrine1. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to the assistance of counsel for his defense.2. Massiah recognized 6th Amendment right to counsel in pretrial situations in which, after indictment government agent deliberately elicited incriminating statements in absence of counsel.3. Held that right was violated when statements were used against him at trial.

B. Attachment of the right to counsel1. The Right to Counsel attaches ONLY after the initiation of adversary judicial proceedings. In other words, it does not attachan individual has no entitlement to the assistance of counseluntil after the initiation of formal charges. 2. An arrest or arrest warrant is not sufficient, but a formal charge, preliminary hearing , indictment, information, or arraignment constitutes the initiation of adversary judicial proceedings.3. When a person makes a first appearance before a judge, is informed of the charges against him/her, and his liberty is subject to restraint, the right attaches. a. Rothgery- was arrested for being a felon in possession of a firearm. had an initial appearance before a magistrate who concluded theta there was PC that he was a felon. County did not appoint counsel to until 6 months after. alleged that his right to counsel attached upon his first appearance and that the County violated his 6A right. Supreme Court agreed.4. The initiation of adversary judicial proceedings does not depend on whether a prosecutor is involved in starting the process.a. See Rothgery Above. District Court ruled that s right to counsel had not attached at his initial appearance b/c prosecutors were not aware of or involved in his case. Supreme Court disagreed.5. The right to counsel is OFFENSE SPECIFIC. It attaches only for those offense that have been the subject of formal chargesincluding any offense that is the same as the formally charged offense under the Double Jeopardy Clause test (one offense must include all elements of the other offense). a. Texas v. Cobb- D was arrest and indicted for burglary. He had an appointed atty and was released on bond for that crime. Later he was arrested for the murder of the home he burglarized and confessed after waiving his Miranda rights. D Motioned to suppress b/c he was entitled to counsel pursuant to his burglary charge. Court held that the right to counsel is offense specific and burglary murder even though factually related.

C. Massiahs Critical Stage1. Massiah held that the govt deliberate elicitation of statements from an accused is a critical stage of the prosecution giving rise to a 6th Amendment right to counsel.2. The Govts interaction with the accused:a. Deliberate elicitation by either a known government agent or an undercover agent can violate the 6A.i. Brewer- was being transported and did not initiate discussion.An agent and engaged in small talk regarding religion and appealed to his religion. took police to the places he left the blanket, shoes, and then lead them to the body. Here the police officer's "Christian burial speech" was tantamount to interrogation respondent was entitled to the assistance of counsel at the time he made the incriminating statements.ii. Messiah- D was arrest for narcotics, was on bail when a codefendant and govt informant had D make incriminating statements while in Co-Ds car. Court held that use of informant was deliberate elicitation by govt and D was entitled to counseliii. Fellers- After D was indicted by a grand jury, went to his home to arrest and then had a discussion with Fellers about the charges against him. During the convo Fellers made statements that were then used against him in his trial. Court held that statements should be suppressed because the indictment constituted the beginning of proceedings against him and he was entitled to the presence of counsel from that moment on. iv. Henry- was indicted for armed robbery.He was put in a cell with a government informant who was told not to question him, but to report information. The fellow prisoner gave the feds info on and testified in Court. Court held that by intentionally creating a situation likely to induce to make incriminating statements without the assistance of counsel, the Government violated s 6A right to counsel.b. Interrogation is NOT required, only deliberate elicitation. Mere conversation suffices, but passive listening is NOT sufficient.i. Henry- See aboveii. 3. The Govts Responsibility For the Informant:a. For elicitation by an undercover informant instead of a regular Governmnet employee (e.g. police, FBI) there muse be a basis for holding the informants conduct attributable to the Govt.i. Henry-b. This requires that the Govt either intentionally create a situation likely to induce the accused to make an incriminating statement without counsel or knowingly exploit an opportunity to confront the accused without counsel; it is sufficient that the govt must have known that its agent was likely to obtain incriminating statements (alternative: that the informant was likely to take affirmative steps to secure incriminating information)i. Moulton- and co- were released. told the co- about a plan to kill one of s witnesses. co- told police and wore a wire. Court held that even though co- initiated contact with State, the police knowingly circumvented s 6A since they knew he would make incriminating statements. Motion suppress wire-tap evidence grantedii. Henry- See above-

D. Waiver of the Massiah Right to Counsel1. An accused may WAIVE the 6A right to counsel. State must prove an intentional relinquishment of a known right or privilege. A valid waiver must be knowing and voluntary.a. Brewer- See above- No intentional relinquishment by showing where the body was when both of his attorneys told police not to interrogate him and he told police in the car ride that he would tell his story after he arrived and was with his lawyer. 2. Court has never held that a waiver of the 6A right to counsel must be express; consequently, it can be inferred from circumstances.3. Knowing: Accused must know information in Miranda warnings; must know of attorneys effort to contact; may have to know he has been charged with crime.a. Patterson- 4. VOLUNTARY: No reason to believe that voluntary means something different than in confession and Miranda waiver situations i.e. not coerved by govt in totality. 5. INVOCATION OF RIGHT TO COUNSEL- Request for assistance in court does not invoke right to pretrial assistance granted by Massiah and even if Massiah right is invoked, a waiver is still possible even though the accused has not initiated communication.a. Montejo- was charged with first-degree murder. was also appointed court-ordered counsel, which he neither expressly requested nor denied. While in prison, police read his Miranda rights, and agreed to go along on a trip to locate the murder weapon. While in the police car, wrote an inculpatory letter of apology to the victim's widow. Only upon return did first finally meet his attorney. At trial, the letter of apology was admitted over s objection. The jury convicted of first-degree murder, and he was sentenced to death.

UNIT 13:The Exclusionary Rule:

1. The 4th Amendment Exclusionary Rule requires exclusion of evidence acquired by means of unreasonable searches or seizures from trials.2. It was originally adopted for federal courts in Weeks v. United States; then was applied to the states through the 14th amendment in Mapp v. Ohioh3. Rationales/ Justifications for 4A ER:a. Original rational unclear in Weeks, which said that without ER the 4A would be of no value and might as well be stricken from the Constitution. The Court did appear to recognize a right to exclusion.b. MAPP recognized that it was an essential part of the right to privacy. Mapp also said that its purpose was to deter- to compel respect for the 4A in the future in the only effectively available way and described the ER as a clear, specific, and constitutionally requiredeven if judicially implies deterrent safeguard needed to prevent the 4A from being reduced to a form of words. The Court also relied on judicial integrity.c. Later

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