CRIMINAL PROCEDURE

I. FOURTH AMENDMENT SEARCH AND SEIZURE

A. 2 MODELS OF THE 4TH AMENDMENT

United States Constition, Amendment IVThe right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.-- “effects” = the residual component of the constitutional phrase; includes autos,

luggage, and other containers, clothing, weapons, and even the fruits of a crime; less inclusive than “property” (an open field, as opposed to curtilage, is not an effect—see below)

US v. Rabinowitz (overruled by chimel v. California)-- The evil to be prevented by the 4th Am is the general exploratory search and

unreasonable searches and seizures.-- Petitioner, Rabinowitz was arrested with a valid arrest warrant (with probable

cause) for forged and altered gvt stamps. There was no search warrant, but upon his arrest, the officers searched his person, small one-room office open to the public, file cabinets, safe, and desk in his presence despite his objection to the search.

-- Issue: the reasonableness of a search without a search warrant of a place of business consisting of a one-room office alongside a valid warrant for arrest

-- 2 views of the 4 th Am.—Minton and Frankfurter (1) Majority—Minton:

- The search and seizure were valid as incidental to a lawful arrest. The search was reasonable.

- No search warrant is required if the search and seizure are reasonable (OVERRULED). A general exploratory search always requires a search warrant, but a limited search might not.

- Test for reasonableness is determined on a case-by-case basis, considering the totality of the circumstances.

- Weeks v. US—The right to search the person incident to arrest always has been recognized in this country.

- Agnello v. US—There is a permissible area of search beyond the person proper. Subsequent to an arrest, a limited search of the place of arrest can be made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody.

- Assuming that the officers had time to procure a search warrant, were they bound to do so? No. A limited search accompanying a valid arrest need only be reasonable.

- Exceptions to the search warrant requirement (evidence not suppressed in these situations):

(2) Dissent—Frankfurter:- If there is no search warrant, the search of a place is presumptively

unreasonable with some exceptions. Whether the search accompanies a valid arrest makes no difference.

- Frankfurter points out that the only exceptions which allow for an additional warrantless search to be found reasonable under the 4th Am include:

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risk of exigency (to officer’s safety) risk of escape of suspect risk of evidence being destroyed moving objects may be searched because they may be quickly moved

out of the jx- Upon arrest, officers may search and seize anything on the person or in his

immediate physical control without a search warrant.- 4th Am rights should be construed liberally. Police officers will be

confused and may conduct more general searches.

B. REASONABLE EXPECTATION OF PRIVACY—STANDING

Katz v. US-- Petitioner was convicted of transmitting wagering information by telephone in

violation of a federal statute. At trial, the gvt was permitted, over the petitioner’s objection, to admit evidence obtained from wiretapping the phone booth while petitioner was in the phone booth with the door closed.

-- The 4th Am protects people, not places. The evidence (the conversation on a tape recording) was not allowed because Katz had a reasonable expectation of privacy from the intrusion of gvt officials (sometimes called “Standing” to object to the admission of evidence).

-- Katz’s oral communications were protected.-- The requirement of an objective predetermination of probable cause is a

safeguard for privacy rights. An after-the-event justification for a search violates privacy rights protected by the 4th Am. The scheme of the 4th Am is based upon the principle of antecedent determination of probable cause by a neutral and detached magistrate.

-- Current Rule: Katz test (2-prong dispositive test from Harlan’s concurrence) for determination of standing/reasonable expectation of privacy: (1) Subjective component: the person must have exhibited an actual

expectation of privacy AND (2) Objective component: the expectation must be one that society

recognizes as reasonableHeirarchy of REOP

-- Residences (home, hotel) > business premises > automobilesStanding

-- There is no 3rd-party standing, i.e., you cannot have standing when someone else was searched merely because they carried your belongings. (Alderman v. US—“suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”; US v. Payner—The gvt intentionally manipulated the standing requirement of the 4th Am when it deliberately and patently violated the constitutional rights of a 3rd party in order to obtain evidence against its real targets. The evidence was admissible.)

-- Automatic standing (for possessory interests) was abolished in Simmons v. US. Victims must now prove that they have standing under the Katz test.

-- Simmons v. US limited immunity: testimony given by a D in order to establish his “standing” may not thereafter be used against him at trial on the issue of guilt; D loses limited immunity only if he testifies inconsistently at trial.

-- Residential premises: One with a present possessory interest in the premises searched, e.g., a member of the family regularly residing in a home, may

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challenge that search even though not present when the search was conducted because the items seized were the fruits of an unauthorized search of his house. Alderman v. US—a person has standing to challenge the legality of electronically overhead conversations in which he participated “or conversations occurring on his premises whether or not he was present or participated in those conversations.” Rakas v. Illinois—For those legitimately on premises, the standard for standing is whether there was a reasonable expectation of privacy under the Katz test. Minnesota v. Olson—overnight guest has a reasonable expectation of privacy. See also Kyllo (to be discussed later)

-- Business premises: Protected (standing) when there is a reasonable expectation of privacy. Mancusi v. DeForte—Defendant, who shared his office with other union officials was protected because he had a reasonable expectation of freedom from governmental intrusion. Courts have held that a corporate or individual D in possession of the business premises searched has standing, and that an officer or employee of the business enterprise has standing if there was a demonstrated nexus between the area searched and the work space of the D. There can be a justified expectation of privacy even absent exclusivity. See Ortega below.

-- Vehicles and pedestrians: Protected (standing) when there is a reasonable expectation of privacy, but police are allowed to search if there is a reasonable inference of the risk of flight/destruction of evidence.

REOP (standing) NO reopShredded papers put out in the garbage (US v. Scott—IRS agents stole garbage and reassembled shredded documents)

Garbage put out for pickup (CA v. Greenwood—police had garbage men collect and hand over suspect’s garbage; what a person knowingly exposes to the public is not entitled to 4th Am protection)Smith v. Maryland—Also, no reop in the phone numbers we dial from home phones; same reasoning as Greenwood

Curtilage—the land immediately surrounding and associated with the home; the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life

Open fields-the land beyond the curtilage, still private property; no reop even when a fence or ‘no trespassing’ sign exists.US v. Dunn—police went up to barn on private property and looked through holes; considering the distance from the house (60 yards) and the ability to look into the barn without moving anything, the court held no reop

Business premises Planes flying 1,000 ft overhead (CA v. Ciraolo—“Any member of the public flying at this airspace who glanced down could have seen everything that these officers observed.”)

Private areas in public places (e.g., public bathroom in a public park)

Backyard greenhouse surrounded by fence (in curtilage); no reop against helicopter flying 400 ft overhead (Florida v. Riley—Any member of the public could legally have been flying over the property in a helicopter at the altitude of 400 ft and could have observed the

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greenhouse.)Reop against officer reaching inside car to reveal a VIN, even though law requires that a VIN must be displayed at all times.

Prison cells

Reop as to seizure of a car, but not as to seizure of wheel and paint scrapings for investigation.

Reop as to seizure of a car, but not as to seizure of wheel and paint scrapings for investigation.

Travel bag (Bond v. US—officer stopped a bus, walked inside and felt everyone’s bags, felt a brick shape and opened Bond’s bag to reveal a brick of meth; standing and unlawful search and seizure; a traveler’s personal luggage is clearly an “effect” protected by the 4th Am)See Dressler for what constitutes an effect (under what is a search)

Officer’s detection by natural senses (US v. Mankani—no search where conversations in adjoining motel room were overheard by the naked human ear); no reop when a common means of enhancing the senses is used, such as a flashlight, binoculars, canine nose, (reop against “through-the-wall surveillance”, but no reop against “of-the-wall surveillance”)

Monitoring of a beeper when it reveals information that could not have been obtained through visual surveillance of the outside premises constitutes a search.

Installation of a beeper in a container of chemicals with the consent of the original owner is neither a search nor a seizure.

thermal imager, powerful directional microphone, satellite scanning for visible light (reop against “through-the-wall surveillance”, but no reop against “of-the-wall surveillance”)

Cell phone tracking

Down Chemical Co. v US—Highly detailed aerial photography of open areas of an industrial plant complex is not analogous to the curtilage of a dwelling and no reop exists; dissent—reop illustrated by trade secretsRakas v. Illinois—Passenger does not have reop as to trunk, glove box, or underneath seats of car. (Does driver/owner of car?)

Kyllo v. US -- This case reaffirms the expected privacy of a home.-- Suspected marijuana growth in triplex; agent used a thermal imager to scan the

home and discovered that the roof over the garage and a side wall of the home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex.

-- Search warrant was based on tips from informants, utility bills, and the thermal imaging. Search revealed 100 marijuana plants which were seized.

-- Evidence admissible for probable cause because the thermal imaging was not an invasion of privacy.

-- Majority makes distinction between “off-the-wall surveillance” and “through-the-wall surveillance” and analogizes thermal imaging to powerful directional microphone that picks up only sound emanating from a house and satellites capable of scanning from many miles away for visible light emanating from a house.

-- Majority: The use of a thermal imaging device IS an intrusion into the home,

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as are powerful directional microphones and scanning for visible light by satellite. These are illegal through-the-wall searches.

-- Dissent: The use of thermal imaging devices is an off-the-wall surveillance.Rakas v. Illinois

-- Police get a radio call of suspected armed robbery getaway car (potential violent felony), and the car in which Rakas was a passenger matched the description (reasonable suspicion, but not probable cause). Officer pulled them over and searched the glove compartment and underneath the seat, finding a rifle and shells. No one asserted ownership of the gun and shells, and the passengers conceded that they did not own the car.

-- Standing should depend on whether the police action sought to be challenged is a search with respect to the person challenging the intrusion. The preferred analysis for determining the scope of constitutional rights protected by the exclusionary rule focused on the substantive question of whether petitioners had their own rights infringed by the police's search and seizure, rather than on the concept of standing. Further, the Court determined that the appropriate measure of rights was no longer guided solely by whether petitioners were legitimately on the premises that the police searched.

-- The passengers had no standing because like the trunk of a car, glove compartments and underneath seats are not areas in which a passenger has a reasonable expectation of privacy. (but driver/owner does??)

-- The 2 inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by the victim.

Rawlings v. Kentucky-- Rawlings dumped drugs into Cox’s purse upon seeing the cops approaching.

When the cops searched the purse, he claimed ownership of the drugs. However, he had no reasonable expectation of privacy wrt the purse because he never sought or received access to it, and he had no right to exclude others from it. Also, the precipitous nature of the “bailment” to Cox hardly supports a reasonable inference that Rawlings took normal precautions to maintain his privacy.

-- Ownership of chattels, by itself, does not automatically grant standing. There was no reasonable expectation of privacy from governmental intrusion.

Minnesota v. Carter (tricky case)-- An informant told a police officer that he saw people packing cocaine into bags.

The officer looked into the window through a gap in the closed blind and observed 3 persons bagging the cocaine at an apartment. The officer notified headquarters and began preparing affidavits for a search warrant. Carter and Johns left, were pulled over and arrested. A later police search of the vehicle turned up cocaine. Police returned and arrested Ms. Thompson in her apt, searched the apartment, and found more cocaine.

-- Carter and Johns had never been in Thompson’s apt before and were only in it for 2.5 hrs, and they had come to the apt for the sole purpose of packing the cocaine.

-- Majority: Rehnquist In Minnesota v. Olson, SC decided that an overnight guest in a house has

standing. However, mere presence with the consent of the householder (legitimate presence), by itself, does not provide 4th Am protection.

No standing was established for Carter and Johns due to the nature of their visit—they did not have a reasonable expectation of privacy because it was short, their first visit, and they were only there to pack cocaine.

Parties who are in a residence for only a few hours, on “business,” and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest a search of the premises (as opposed to their personal belongings).

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-- Dissent: Ginsburg, Stevens, Souter The majority opinion undermines the security of short-term guests and

residents (like Ms. Thompson). Guests should share the host’s shelter against unreasonable searches and seizures.

The 4th Am protects people, not places. 5 generally recognized ways to establish a reasonable expectation of privacy:

-- (1) The right to exclude others from the area searched. Analogous with the capacity to consent to a search. Rakas—if one owns the area searched, one will generally possess a right to

exclude others Alderman v. US—homeowners have standing even when they are not present,

even over conversations of which they were not a part Katz—occupied phone booth and closed the door Mancusi—union official shared office but still had right to exclude others

-- (2) Continuing access plus possessory interest of item seized. US v. Jeffers—key to aunt’s apartment and continuing access plus possessory

interest in seized contraband within the apartment-- (3) Legitimate presence plus possessory interest of item seized.

Minnesota v. Olson—D had standing to contest the police’s warrantless entry despite the fact that he slept in the apartment for 1 night and was never given a key.

Minnesota v. Carter—However, parties who are in a residence for only a few hours, on “business,” and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest a search of the premises (as opposed to their personal belongings). Therefore, temporary guests with no prior relationship to the homeowner probably do not have a REOP even though they have a legitimate presence plus possessory interest in the item seized.

-- (4) Were one to make a valid bailment, a legitimate expectation of privacy might be established. US v.Miller—However, a person who voluntarily surrenders information to a

bank lacks standing to contest a subpoena for records containing that information.

-- (5) Defendant is personally seized by the police Terry v.Ohio Mendenhall Hodari D.

O’Connor v. Ortega-- Dr. Ortega was employed by a state hospital (government action). Officials

became concerned about possible improprieties on the doctor’s part, including his acquisition of a computer by means of possibly coerced contributions of residents, alleged sexual harassment, and inappropriate disciplinary action against a resident. Hospital placed Ortega on paid administrative leave and conducted an investigation. Ortega’s office, desk, and file cabinets were searched, personal items and state items were seized, and he was fired. No inventory was taken of the items, and some of the evidence was used against him in administrative proceedings. Ortega brought suit for violation of the 4th Am under 42 USCS § 1983 (civil rights action), defending his right against the general exploratory search against which he had a reasonable expectation of privacy. He brought the civil case because there was no criminal prosecution. 4th Am. applies to civil and criminal cases.

-- 2 issues: reasonable expectation of privacy in office and its contents? Was the warrantless search of the business premises legal or illegal?

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-- Plurality: O’Connor, White, Powell Privacy expectations, governmental interests, the requirement of a warrant,

and the requirement of probable cause all bear on reasonableness. What is reasonable depends on the context within which a search takes place.

Balancing test: the nature and quality of the intrusion on the individual’s 4th Am. rights should be weighed against the importance of the governmental interests alleged to justify the intrusion. (New Jersey v. TLO)- Balancing test is applied to standing, requirement of warrants, and

requirement of probable cause Searches and seizures by gvt employers or supervisors of the private property

of their employees are subject to the restraints of the 4th Am. Issue: Did the officials infringe “an expectation of privacy that society is

prepared to consider reasonable?” Factors for determining if an expectation of privacy is considered

reasonable by society on business premises (IUSAL):- (1) Intention of the Framers of the 4th Am- (2) Uses to which the individual has put a location- (3) Societal expectation that certain areas deserve the protection from

gvt invasion (Katz)- (4) Actual business practices - (5) Legitimate regulation

The workplace is generally within the employer’s control, but not everything that passes through the confines of the business address can be considered part of the workplace context.

In Mancusi v. DeForte, SC held that a union employee who shared an office with others had a privacy interest in the office sufficient to est. standing.

Workplace search cases (searches by supervisors, not police) should be tried on a case-by-case basis, considering office practices and procedures, legitimate regulation, and the employee’s expectation of privacy in the context of the employment relation.

Ortega had a reasonable expectation of privacy wrt his desk and file cabinets because he had the office for 17 yrs, kept personal items there, and never shared the office with anyone. There was no regulation against storing personal items.

“Both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search . . . in certain limited circumstances neither is required.”

Issue: Was a search warrant required? A search warrant is not appropriate where “the burden of obtaining a warrant

is likely to frustrate the governmental purpose behind the search.” “Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

Cases requiring warrants are generally not work-related. Upon balancing the interests of public employees in the private objects they

bring to work against the realities of the workplace, obtaining a search warrant is impracticable. The routine conduct of business would be disrupted, and obtaining a search warrant would be unduly burdensome.

Issue: Is probable cause an appropriate standard for public employer searches of their employees’ offices?

Generally, probable cause is required, but if a balancing test reveals that reasonableness less than probable cause is appropriate, such standard will be

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applied. For either a non-investigative work-related intrusion or an investigation of

work-related employee misconduct, probable cause is impracticable; reasonableness is the appropriate standard. (probable cause is too complicated for governmental agencies to understand)

Both the inception (intrusion) and scope of the search must be reasonable.- A search of an employee’s office by a supervisor will be justified at its

inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.

- The search will be permissible in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.

Remanded to determine the reasonableness at inception and reasonableness of scope.

-- Concurrence: Scalia Case-by-case basis is insufficient. There must be more defined boundaries. Expectation of privacy does not change regardless of whether intruder is

police officer or supervisor.-- Dissent: Blackmun, Brennan, Marshall, Stevens

Plurality and concurrence disregard the obvious fact that the intrusion was investigatory in nature. The assumed facts are weighted in favor of the employer.

There was no special need (such as a school teacher, moving vehicle, etc.) for this investigatory search; a warrant and probable cause should have been required.

Investigators were rummaging through his belongings—not a reasonable search.

There was a clear violation of Ortega’s 4th Am. privacy interests. Routine visitors into an office does not diminish an expectation of privacy. The plurality’s balancing test is flawed. It is too broad and appears to apply to

al public employer searches. An investigative search should require a warrant and probable cause. Eliminating the requirement of a warrant and probable cause both require

some nexus between the absence of the warrant or probable cause, the employee’s privacy interests, and the government interests to be served by the search. The plurality proves no such nexus.

People v. Lionberger-- The arresting officer, without probable cause, pulled over the vehicle and shined a

light into the eyes of the passengers. The driver admitted to drinking. The officer determined that all 3 had dilated pupils and arrested them all.

-- The only cause he had for pulling the car over was: failure to signal when leaving the parking lot, an “unusually long stop” (15-20 seconds) at a stop sign, the lateness of the hour, the fact that there were 2 bars in the area, and the fact that the driver could have possibly been drunk. No probable cause. Reasonable suspicion?

-- Issue: Does a vehicle passenger have standing to seek suppression on 4th Am. grounds of police observations and other evidence obtained as the result of an unlawful seizure?

-- Stopping an automobile and detaining its occupants constitutes a seizure of those persons. Evidence seized as a result of that stop should not be admissible if the stop was unreasonable.

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-- The car passengers had standing because they had a legitimate expectation of privacy to travel free of any unreasonable government intrusion. The only necessary inquiry was whether the passengers’ rights were violated by the allegedly illegal search or seizure of their persons.

-- Car passengers can have standing if they had a REOP. -- Issue: Was the officer’s conduct a “contact” or detention? -- Yes, the officer’s actions constituted a detention (seizure of person).

Reading 31 question 1 -- Steven Smith, county doctor in gvt hospital, is suspected of possessing and

dealing stolen electronic equipment directly out of his shared office. A search warrant is executed and granted, but probable cause was not set forth in the affidavit for search warrant. The search warrant allowed seizure of only electronic devices, but the officers pried into locked file cabinets and small lock boxes in the file cabinets containing drugs.

-- Standing : Smith has standing because he has a reasonable expectation of privacy with regard to his office, file cabinets, and lock boxes, as in Ortega. Factors for determining if an expectation of privacy is considered

reasonable by society: (1) Intention of the Framers of the 4th Am, (2) Uses to which the individual has put a location, (3) Societal expectation that certain areas deserve the protection from gvt invasion (Katz), (4) Actual business practices, and (5) Legitimate regulation

Mancusi v. DeForte: SC has found that an employee with a shared office can have standing

File cabinets and boxes were locked, which demonstrated his subjective expectation of privacy. The file cabinets were labeled as having private patient medical records.

Generally recognized situations for standing that are met: (1) right to exclude and (2) continuing access plus possessory interest

C. SEARCH WARRANTS AND THE PROBABLE CAUSE STANDARD

SEARCH WARRANT ANALYSIS(1) Is there probable cause in the affidavit?

-- A. former Aguilar-Spinelli two prong test for probable cause: Basis of knowledge (underlying circumstances) Informant credible or information reliable? police corroboration performed? A magistrate may use police corroboration

(other information found by police to support an informant’s tip) to determine if the informant’s tip passed the A-S test. However, for probable cause to be established, the tip alone should still fairly pass the test. (This seems contradictory.)

-- B. current test – totality of the circumstances (Illinois v. Gates) a “fair probability” that contraband is presently at that location

- great detail (Draper), accurate prediction of future events,- statements from victims/citizens are important factors in finding- probable cause to be present

-- BOTH prongs are required on a test.(2) Is there present probable cause, or has the information become stale?

-- When the time of the facts is given, probable cause will sometimes be lacking because that information has become “stale” as to deplete present probable cause.

(3) Neutral and detached magistrate?-- Lo-Ji Sales, Inc. v. New York (no); Coolidge v. New Hampshire (no);-- no financial interest in issuing the warrant

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(4) Particularity in the place to be searched, and things to be seized?-- scope issue: once the items named in the warrant have been found and seized, the

search must cease; seizure of items not named in the warrant is allowed only if they are contraband in plain view

(5) Execution proper?-- between 7:00 a.m. – 10:00 p.m. in California (a nighttime endorsement for 24-hour

service is possible under Penal Code section 1533)-- within 10 days of issuance (Penal Code section 1534)

(6) If there is not probable cause in the affidavit, or if it is a “close call” judged by the objective reasonableness of a police officer: does the Good Faith Exception apply?-- United States v. Leon-- Objective standard of reasonableness wrt police officer-- (under which the items seized will be admitted, even though there was no probable cause)

(7) Four exceptions to the Good Faith exception:-- (1) false/recklessly misstated information in the affidavit

court will excise tainted information and reweigh all the evidence (Franks v. Delaware)

-- (2) no neutral and detached magistrate; magistrate abandoned her role-- (3) probable cause is so lacking, that no reasonable police officer would have believed

the affidavit contained probable cause –i.e., it fails the “objectively reasonable officer” test in United States v. Leon

-- (4) warrant is facially deficient –serious failure in particularity of the place to be searched or the items to be seized

PROBABLE CAUSE FOR SEARCH WARRANTSpinelli v. US

-- Spinelli was convicted of traveling to St. Louis with the intention of conducting gambling activities. An anonymous letter was sent to police detective which revealed that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.” Spinelli challenged probable cause of a search warrant which uncovered evidence that led to his conviction.

-- Hearsay evidence can be used to satisfy probable cause as long as it meets the following test:

-- Augilar-Spinelli test: application for a search warrant must (1) set forth “underlying circumstances” necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion and (2) show that the informant is credible or that his information is reliable.

-- The statement that the informant was reliable was conclusory. No evidence was given to prove that the informant was credible or that the information was reliable. No evidence was given to set forth underlying circumstances which could establish the validity of the statements in the letter.

Draper v. US (from Dressler hornbook pg. 132-135)-- Read it. The information described by the informant was so detailed (the description of

the suspect’s travel itinerary and what he’d be wearing) that it was obviously reliable. This is termed “self-verifying detail.” When the officer showed up and Draper was exactly as described, probable cause was established. Also, the informant in Draper had formerly given reliable information.

-- If information is given in “self-verifying detail,” it is enough to prove that statements from an informant satisfy the “basis of knowledge” prong of the A-S test.

-- Informant had given reliable information in the past as an employee of the Bureau of Narcotcs. However, the information was weak on the 1st prong (basis for information—underlying circumstances)

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-- Great detail plus accurate prediction of future events justifies probable cause.Illinois v. Gates

-- Anonymous letter to police dept informed investigator of a couple that was involved in drug trafficking. The letter included details of the suspects’ travel details from Illinois to Florida such as when and how they would travel. An investigation revealed the travel details to be true. The detective filed an affidavit for a search warrant with the facts and the attached letter. The warrant was granted and a search of the couple’s house and car revealed drugs and weapons.

-- Letter was not enough to provide probable cause.-- New rule: The totality of the circumstances will determine if probable cause

is established in a search warrant application. The A-S factors are still relevant, but establishing PC should be a more fluid analysis, looking at the totality of the circumstances. If one of the factors of the A-S test is strong, it may make up for the other weak factor.

-- PP: Probable cause is a fluid concept, dealing with probabilities that cannot be confined to a 2-prong test.

-- An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause. Whether there is probable cause depends on a common sense, practical consideration of the totality of the circumstances.

-- Aguilar-Spinelli test, despite overruled, is still to be used as a factor. -- The new totality of the circumstances test is more lenient. -- It is enough, for purposes of assessing probable cause, that corroboration

through other sources of information reduced the chances of a reckless prevaricating tale, thus providing a substantial basis for crediting the hearsay.

Probable cause is required for obtaining a warrant AND for warrantless arrests and searches, but the standards are different. For arrest, there must be a substantial probability that a crime has been committed and that the person to be arrested committed it; for search there must be a substantial probability that certain items are the fruits, instrumentalities or evidence of a crime and that these items are presently to be found at a certain place. -- Probable cause for a warrantless search is difficult because the time of the facts

relied upon is unknown or highly uncertain. When the time of the facts is given, probable cause will sometimes be lacking because that information has become “stale.” Highly incriminating or consumable personal property is not likely to remain in one place.

-- To have probable cause to search, there must be a sufficient connection of the items sought with a particular place. Thus, while a valid search warrant can sometimes issue even when the perpetrator is unknown, it does not necessarily follow that probable cause to arrest a person will likewise constitute probable cause to search that person’s residence for evidence.

Franks v. Delaware-- Excise and Reweigh: Where the D makes a substantial preliminary showing that

a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, AND if the allegedly false statement is necessary to the finding of probable cause, a hearing must be held at the D’s request. If the perjury or reckless disregard is established by a preponderance of the evidence, the remaining evidence is to be reweighed to establish probable cause.

Informants’ identities are privileged. Maryland v. Pringle

-- Officer stopped the car for speeding. Partlow was driving, Pringle was the front 11

seat passenger, and Smith was in the back. Partlow (driver) opened the glove compartment and officer saw a big roll of cash. Officer had Partlow get out, asked him if he had any drugs or weapons in the car, Partlow said he did not, and consented to a search which yielded $763 in cash from the glove compartment and 5 baggies of cocaine from behind the back seat armrest. None of them confessed ownership and all 3 were arrested. Pringle later confessed ownership of the cocaine. Pringle made a motion to suppress his confession as the fruit of an illegal arrest.

-- The officer had probable cause to believe a felony had been committed. The probable cause needed for the arrest of each of the 3 people in the car depended on the totality of the circumstances, and must be analyzed with respect to each individualized person.

-- It was a reasonable inference that any or all of the 3 occupants had knowledge of, and exercised dominion and control over, the cocaine.

-- Ybarra v. Illinois—A person’s association with others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Probable cause must be particularized with respect to that person.

-- State v. Thomas—If the same facts can be used to implicate more than one person in a crime that could have been committed by one of them, probable cause exists. (Search warrant upheld when a minute portion of a victim’s blood was found in Defendant’s car.)

A victim or witness (known) informant satisfies automatic reliability. The critical question is whether the victim/witness’s general description is sufficient to justify the arrest of any one person. Discrepancies are allowed because the victim may be excited or have poor visibility, and the victim may change clothes, etc.

Direct observation by police: When police observe suspicious conduct, the probabilities must be measured by the standards of the reasonable, cautions, and prudent police officer as he sees them, not those of the casual passerby. Reliability of police officers’ information is basically automatically reliable. Brooks v. US—officer observed 2 men whom he knew to have prior larceny charges carrying a record player with tags on it at 6:30am, and they changed their story; probable cause existed.

Information from official channels (other police depts., FBI, etc.) are basically automatically reliable.

SEARCH WARRANTS9 Exceptions to the Warrant Requirement:

-- CAB POISE Ars-- (1) Consent by occupant/defendant—must be voluntary, not coerced-- (2) Automobile exception—must be capable of mobility; still requires

probable cause-- (3) Border searches-- (4) Plain view-- (5) Officer safety—weapons searches; limited to immediate control of D-- (6) Inventory of vehicles seized by police-- (7) Search incident to arrest; limited to immediate control of D-- (8) Exigency—risk of flight or destruction of evidence; someone is in trouble

(screaming or 911 call), smell of methamphetamine lab—risk of explosion-- (9) Administrative/Regulatory/Special needs searches—not for a criminal

purpose; not performed to locate crime of evidence; must have rules established to limit officer discretion; balancing test applied—level of public need versus level of intrusion on the individual

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Requirements-- Issuance:

A magistrate must be “neutral and detached” and capable of determining probable cause for the requested search or arrest.

The place to be searched must be described with particularity. It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. US.

The persons or things to be seized must be described with particularity. This is to prevent general searches, mistaken seizures, and the issuance of warrants on loose, vague, or doubtful bases of fact.- A greater degree of ambiguity will be tolerated when the police have done

the best that could be expected under the circumstances.- A more general description will be sufficient when the nature of the

objects are such that they couldn’t be expected to have more specific characteristics (e.g., 42 sheets of plywood).

- A less precise description is required of property due to its particular character.

- Description is adequate when certain omitted facts couldn’t have been of assistance to the executing officer (e.g., which furs in the fur store were stolen would require a fur expert to execute the warrant).

- An error of certain descriptive facts is okay if the executing officer was nonetheless able to determine the intended object for seizure.

- Greater care in description required when the type of property sought is generally in lawful use in substantial quantities (e.g., description of “certain automobile tires and tubes” insufficient).

- A more particular description required when other similar objects are likely to be found at the scene.

- Greatest care in description required when the consequences of a seizure of innocent articles by mistake is most substantial, as when the objects to be seized are books or films or indicia of membership in an association, or when the place to be searched is an attorney’s office.

- The fact that some items were improperly seized does not mean that the warrant was not sufficiently particular.

- No particularity required wrt the criminal activity suspected- Leeway tolerated where it appears additional time could have resulted in a

more particularized description but there was some urgency to conduct a search.

A particularity defect in a warrant cannot be overcome by a sufficient description in the supporting affidavit. Groh v. Ramirez

Good faith-- Execution:

Must be timely; rules differ per jx- Cal. Penal Code § 1533

Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 a.m. and 10 p.m.

When establishing "good cause" under this section (e.g., danger of imminent flight or potential violence), the magistrate shall consider the safety of the peace officers serving the warrant and the safety of the public as a valid basis for nighttime endorsements.

- § 1534 13

(a) A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period (10 calendar days) shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.

(b) If a duplicate original search warrant has been executed, the peace officer who executed the warrant shall enter the exact time of its execution on its face.

(c) A search warrant may be made returnable before the issuing magistrate or his court.

Knock-notice: requirement changed this summer; ignore for purposes of this course (Hudson v. Michigan—look at for the bar exam)

Search of persons on the premises: A person’s mere propinquity (nearness) to others suspected of criminal activity does not, without more, give rise to probable cause to search that person.

Detention of persons on the premises: In assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the “articulable facts” supporting the detention are relevant. It is appropriate to consider the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant. The interest in preventing flight and minimizing the risk of harm justify detainment. Michigan v. Summers (USSC)—police officers detained Summers, who was leaving the premises as they approached with a search warrant. After they found drugs and discovered that he owned the house, they searched him and found heroin in his pocket. The seizure of his person was legal.

Intensity and duration of search: - Although a search may extend to an entire premises, officers may only

look where the items described in the warrant might be concealed (e.g., cannot look in desk drawers for a tv).

- Once the items named in the warrant have been found, the search must cease.

Seizure of items not named in the search warrant: Generally, seizure is limited to what is named in the warrant, but the fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure IF the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement (e.g., marijuana listed in warrant and officer expects to find a bong).

Police may be accompanied by third persons ONLY if they are aiding the execution of the search warrant (e.g., to identify stolen objects). The media is not allowed.

Some jxs require that a copy of the search warrant must be delivered along with the search.

Lo-Ji Sales, Inc. v. New York -- Case against porn store. Officers bought 2 films, viewed them, and found them to

be obscene. Town justice (who also acted as magistrate) also viewed the films 14

and issued a search warrant listing the items to be seized as the 2 films plus other items to be determined at the scene, accompanied by a signed blank affidavit (which was filled in later)—a general exploratory warrant without particularity. The magistrate was acting as an officer, so he was not a neutral and detached magistrate. Officers seized most of the store (significantly more than stated in the warrant)—general exploratory search against which the 4th Am is meant to prevent.

-- 2 reasons for suppression of evidence: A person who takes part in the execution of a warrant is not a neutral

and detached magistrate—must be separate entities. A search warrant must describe with particularity the things to be seized.

- Particularity defect—warrant too vague (it was left open until the search was complete); allowed for a general exploratory search because police officers had discretion to decide what was likely obscene and to implement the seizure

Coolidge v. New Hampshire-- A state attorney general cannot be a neutral and detached magistrate.

Reading 31, problem 3, part 2-- The testimony regarding the police officers’ initial observations should be

inadmissible because the search was unreasonable. The search went beyond the scope allowed for a search that may accompany a legal arrest because he was arrested at the front door and there was no need to enter the house and search. The police faced no danger when they arrested him at the front door. Police must argue that there was at least one of the exceptions to the search

warrant requirement (evidence not suppressed in these situations):- Search incident to arrest- Protective sweep for safety of officers and others- Risk of flight/destruction of evidence

-- The evidence seized should be inadmissible because the search warrant lacked probable cause. The conclusory statement that Deft had sold cocaine to Bart was not supported by any reason. The police officer’s statement was inadmissible for reasons stated above. The search warrant would have been valid if it had included the statements from the inmate because he was a reliable informant with valid underlying circumstances (he talked to Deft in the cell).

Reading 31 problem 2(1) Did the trial court correctly deny the motion to suppress evidence?

-- David’s reasonable expectation of privacy in the hotel room-- Validity of the warrant

Is there probable cause in the affidavit?- Aguilar-Spinelli test: The reliability prong is satisfied, but the basis of

knowledge is completely missing. The statement “David is planning to sell stolen silicon chips to Vic within the next two weeks” does not reveal the underlying circumstances; he usually rents a room at the Savoy Hotel to make these sales” is conclusory. The wealth of the detail here does not rise to the highly particularized wealth of detail contained in the Draper tip (which did provide probable cause). In Draper, the detailed physical description of the suspect, and the

prediction that he would arrive at the Denver railway station on the morning of September 8 or 9, were not put before a magistrate. The arrest in Draper was without a warrant. However, the key fact in Draper is that the narcotics agents corroborated the informant’s tip by conducting a surveillance, and seeing the described person, wearing the exact clothing previously described, arrive by train on one of the

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two predicted mornings. This corroboration established that the informant’s tip was, indeed, an accurate prediction of future behavior. In David’s case however, the magistrate issued the warrant without the key information that, in fact, one week later David rented the Savoy Hotel room. This information only developed later, when Detective Trace discovered that David was actually in a rented room at that hotel. The information given to the magistrate did not establish probable cause. (Thus, the warrant was an improper “prospective” or “anticipatory” warrant – i.e., one issued for contraband at some non-specifically described location, which contraband was not yet presently there). When full probable cause developed – when Trace learned that the predicted event of David renting a room at that hotel did actually occur, thus an accurate prediction of future events—Trace should have returned to the magistrate with this full probable cause. He did not do so.

- Conclusion: Because the basis of knowledge here is much less than that in Gates or Draper, there was no probable cause in this affidavit. The same conclusion is reached under a totality of the circumstances analysis under the current rule in Illinois v. Gates.

Were there exigent circumstances sufficient to justify a warrantless entry of the hotel room?- Sounds of a struggle – possible crime of violence or destruction of evidence going

on inside Does the Leon “good faith exception” apply, so as to allow for admission of the

seized evidence notwithstanding the lack of probable cause?- If Trace “reasonably believed” that his entry and search were incident to a validly

issued warrant, then the evidence seized pursuant to the search is admissible.- objective standard of reasonableness for “the reasonably well-trained officer”—

Looked at objectively, could a reasonably well-trained police officer believe that this warrant did contain probable cause? If so, the evidence seized will be admissible.

Consent exception?- Statement of the defendant taken in hotel room

Was Miranda required?- No—public safety exception applies

-- Is the statement a “fruit” of a Fourth Amendment violation, i.e., an illegal entry and search of the room by police?

D. THE EXCLUSIONARY RULE

Motion to Suppress Requirements:-- Cal. Penal Code § 1538.5 —A motion to suppress must be in writing, there

must be 15 days notice if personally delivered and over 3 weeks? notice if mailed, the motion must be supported by a legal argument, it must state why suppression is appropriate (under which section of 1538.5) (a) A defendant may move . . . to suppress as evidence any tangible or

intangible thing obtained as a result of a search or seizure on either of the following grounds:- (1) The search or seizure without a warrant was unreasonable.- (2) The search or seizure with a warrant was unreasonable because any of

the following apply: (i) The warrant is insufficient on its face; (ii) The property or evidence obtained is not that described in the warrant (particularity); (iii) There was not probable cause for the issuance of the

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warrant; (iv) The method of execution of the warrant violated federal or state constitutional standards; (v) There was any other violation of federal or state constitutional standards.

-- Cal. Penal Code § 1510 The denial of a motion made pursuant to Section 995 or 1538.5 may be

reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant's arraignment on the complaint if a misdemeanor, or 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.

Mapp v. Ohio -- Police arrived at Mapp’s house pursuant to info that “a person was hiding out in

the home who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy [gambling] paraphernalia being hidden in the home.” The officers knocked on the door and demanded entrance, but Mapp refused to admit them in w/o a search warrant. A few hours later, more cops came and gave another knock-notice. They forcibly opened a door and entered. Mapp demanded to see the search warrant, police held up a piece of paper they claimed to be a warrant, and she took it and put it in her bra. She was handcuffed and the house was searched. Obscene materials were found for which she was ultimately convicted.

-- Prior to this case, it was up to the states to adopt the exclusionary rule. -- All evidence obtained by searches and seizures in violation of the

Constitution is, by that same authority, inadmissible in a state court.US v. Leon

-- Officers found large quantities of drugs with a valid search warrant that was later found to lack probable cause. Leon wants to suppress the evidence.

-- Issue: Whether the 4th Am exclusionary rule should be modified to allow evidence obtained by officers acting in good faith reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.

-- The Court weighed the costs and benefits.-- Rule: Good faith exception to the exclusionary rule: If an officer relies in

good faith on a valid search warrant that is later determined to be lacking probable cause, the evidence from such search is admissible unless: (1) The magistrate or judge in issuing a warrant was misled by information in

an affidavit that the affiant (person who signs/executes an affidavit) knew was false or would have known was false except for his reckless disregard of the truth;

(2) The issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York (not neutral and detached), because no reasonable officer should rely on such a warrant;

(3) The warrant is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable (no objectively reasonable police officer could have believed there was probable cause—Higgason case); or

(4) The warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid—i.e., the warrant fails to particularize the place to be searched or the things to be seized.

Read Dressler pg. 389-- The standard of reasonableness is the objective reasonableness of a police

officer.-- This good faith exception applies only to searches.

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Has been applied to arrests in one case: Arizona v. Evans—officer relied on computer which said there was an outstanding warrant for arrest, but it had actually been taken care of

Massachussetts v. Sheppard -- Detective prepared affidavit for a search warrant to search for specific evidence of

a homicide but could only find a warrant form for controlled substances because it was Sunday. He presented his affidavit on the controlled substances form and the magistrate said he’s fix it. The magistrate made some changes but failed to change the part of the warrant which authorized a search only for controlled substances and related paraphernalia. Homicide evidence found during the search was admissible because there was an objectively reasonable basis for the officer’s mistaken belief under US v. Leon.

-- An officer’s belief is objectively reasonable when he has relied on a judge’s advisement that the warrant he possesses authorizes him to conduct the search he has requested and the only mistake is that the wrong form was used because the proper form could not be obtained.

Groh v. Ramirez -- Affiant and executing officer (same officer) mistakenly entered the description of

the place to be searched in the space for the items to be seized. The error was not noticed by the magistrate and was not noticed by the officer until after the search and seizure.

-- No good faith exception to the exclusionary rule when the warrant does not state with particularity the items to be seized.

Michigan v. DeFillippo and Illinois v. Krull -- Police are using search warrants; judges issued warrants upon state statute;

supreme court invalidates statutes after search warrant executed. Good faith rule applies—the fruits of the search were admissible because deterrence is not aimed at legislatures (same reasoning as US v. Leon).

-- Exclusionary rule is only to deter police, not judicial or legislative bodies.Probation and Parole Revocation Hearings: Distinctive Features(1) Standard of Proof: preponderance of the evidence(2) Criminal trial acquittal not a bar

-- probation may be revoked based upon the same facts which led to a criminal trial acquittal

(3) Hearsay evidence is admissible if it “bears a substantial degree of trustworthiness” (not on test because we haven’t taken evidence)

(4) Exclusionary Rule does not apply to exclude evidence allegedly seized in violation of the probationer’s Fourth Amendment rights (Pennsylvania Board v. Scott—rationale: application of the rule “would alter the traditionally flexible, administrative nature of parole revocation proceedings”)

(5) Governing Constitutional rights and legal rules—tends to be based on Equal Protection and Due Process principles (Bearden v. Georgia)

Dimensions of the Exclusionary Rule: -- Evidence obtained by gvt agents, used as a basis for questions to a grand jury

witness: A grand jury witness may not refuse to answer questions on the ground

that they are based on evidence obtained from him in an earlier unlawful search. The exclusionary rule applied to grand jury proceedings would not deter police officers. US v. Calandra

-- Evidence obtained by gvt agents, used in criminal case after conviction: Illegally seized evidence may be used after conviction for consideration by

the judge in determining the sentence to be imposed. US v. Schipani The exclusionary rule does not apply to parole revocation hearings; it

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only applies in the criminal trial context. Pennsylvania Bd. of Probation and Parole v. Scott

However, in Verdugo v. US, illegally obtained evidence was not admissible after conviction to determine sentencing because the evidence was obtained outside the course of the regular criminal investigation only to enhance the possibility of a heavier sentence after the basic investigation had been completed.

-- Evidence obtained by gvt agents, used in a “quasi-criminal” or civil case: Exclusionary rule applies to forfeiture proceedings. One 1958 Plymouth

Sedan v. Pennsylvania The Court has used a cost-benefit analysis to determine that the exclusionary

rule applies to civil or criminal proceedings by or against another sovereign. (US v. Janis, Elkins)

Exclusionary rule applies to deportation proceedings. I.N.S. v. Lopez-Mendoza

-- Evidence obtained by private persons, used in criminal proceedings: Evidence obtained by private persons is admissible unless illegally

obtained by a private person acting as an agent of the government. Whether the person was acting as an agent is determined by the totality of the circumstances. Burdeau v. McDowell

If the police are summoned after a private person search, the evidence is admissible only if the search by the police was entirely separate and not a significant expansion of the earlier private search and that consequently no search warrant was required. US v. Jacobsen

-- Evidence obtained by virtue of conduct of a nonpolice gvt employee, used in criminal proceedings: Arizona v. Evans—After Evans was stopped for a traffic violation, the patrol

car’s computer indicated he had an outstanding arrest warrant, so he was arrested, his car was searched, and marijuana was found. However, the outstanding arrest warrant was a mistake that had been taken care of earlier but had not been removed from the system by accident. The cop’s arrest and search were covered by the good faith exception of US v. Leon.

-- Evidence obtained by foreign officials, used in domestic criminal proceedings: Admissible against illegal immigrants because they are not part of “the

people” distinguished in the Constitution. US v. Verdugo-UrquidezBearden v. Georgia

-- Petitioner, with a ninth grade education and the inability to read, could not pay a fine imposed on him for felony burglary and theft convictions (to which he pleaded guilty) because he could not find a job. Thus, a trial court revoked his probation and sentenced him to serve the remainder of his probationary period in prison.

-- USSC reversed and remanded. The Court held that the trial court erred in revoking the probation without determining whether petitioner had made bona fide efforts to pay and/or whether alternative forms of punishment existed. The Court found that if petitioner willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the trial court could revoke probation and sentence petitioner appropriately. If petitioner could not pay despite sufficient efforts to do so, the trial court should have considered measures other than imprisonment. If he had made bona fide efforts, the trial court could only imprison petitioner if alternative measures were not adequate to meet the state's interests in punishment and deterrence.

-- If the state determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person

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solely because he lacked the resources to pay it.  If the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available. However, if a probationer has willfully refused to pay a fine or restitution when he has the means to pay, the state is perfectly justified in using imprisonment as a sanction to enforce collection.

-- Equal Protection Due Process violation: Judge failed to make the required inquiry into the reason for failure to pay. A willful failure to pay fines subjects the probationer to jail sentencing, but not an unwillful failure to pay.

Higgason v. Superior Ct (Cal. App. 3d)-- Experienced narcotics investigator relied on 3 anonymous phone calls which

stated that Higgason and his son were selling drugs at his residence, gave a description of him and his residence, and described where the drugs were in the house. After police obtained a search warrant, petitioner was charged with possession of cocaine for the purpose of sale. Respondent trial court denied petitioner's motion to suppress, and petitioner sought a writ of prohibition to compel the Superior Ct to dismiss the charge. The court granted the writ. Even though the search warrant affidavit was executed by an experienced narcotics investigator, it was fatally flawed because all the incriminating evidence emanated from anonymous sources and was not properly corroborated. The police investigation revealed only easily obtained facts existing at the time of the tip; there were no facts to which any degree of suspicion attached. The totality of the circumstances presented by the affidavit did not show a fair probability that contraband or evidence of a crime involving petitioner, an accused drug dealer, would be found in a particular place. The court rejected the argument that the good faith exception to the exclusionary rule should preclude the seized evidence from being suppressed. The good faith exception had not been argued in prior proceedings, and the record did not permit a determination that the officers' conduct was objectively reasonable.

-- Location must be pled with particularity.-- Issue 1: Probable cause for a valid search warrant? No.

The 3 anonymous calls, without more, were not enough to establish probable cause because they do not raise any suspicion of criminal activity. They are merely alleged facts.

Also, the police corroboration (confirmation) was ineffective in establishing probable cause because all he did was verify that Higgason lived at the address and that the description of the home in the phone call fit.

-- Issue 2: If no probable cause, are the fruits of the search admissible under the good faith exception? No. No reasonable police officer would have believed there was probable cause in

the affidavit (this is one of the exceptions to the good faith exception in US v. Leon ).

Police officer

E. FRUIT OF THE POISONOUS TREE

Attenuated Connection Principle ( Wong Sun Rule) : -- Evidence secured as the result of police illegality is admissible if the

connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint. Nardone v. US

-- Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Instead, the critical question

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is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. At some point, the fruit from the poisonous tree is sufficiently untainted so as to be admissible in a criminal trial. Wong Sun v. US

-- 4 attenuation factors should be weighed to determine whether the point has been reached where the detrimental consequences of illegal police action have become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost. (1) Temporal Proximity: The longer the time difference between the initial

illegality and the acquisition of the challenged evidence, the more likely a court will conclude that the evidence is “untainted.”

(2) Intervening Events: As the causal chain of events lengthens, the less likely it is that the police foresaw the challenged evidence as a probable product of their illegality, and deterrent value of exclusion of evidence is reduced. - Intervening act of free will—e.g., Wong Sun was released from jail after

his unlawful arrest. Subsequently, he voluntarily returned to the police station and provided a written statement; this statement was free of taint and admissible.

- A reading of Miranda warnings, alone, is not enough to free evidence of taint. The totality of the circumstances must be looked at. (e.g., Kaupp v. Texas—unlawful arrest, Kaupp transported to the police station and advised of Mirada rights, however confession was still considered tainted)

(3) Special Issue—statement obtained outside home after an unlawful entry of a home but after a valid arrest (with probable cause): NY v. Harris—“Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the D outside of his home, even though the statement is taken after an arrest made in a home in violation of Payton v. NY.” Reasoning: in these situations, the evidence is a product of a valid arrest, not the illegal entry. A person is not immune from prosecution merely because he is the fruit of an illegal search.

(4) Flagrancy of the Violation: evidence is more likely tainted if it was discovered as the result of a flagrant violation of the Constitution (more flagrant if officers knew or should’ve known of their illegal actions). A witness’s verbal testimony is more likely than physical evidence to be free from taint.

Verbal evidence as the fruit of an illegal search and seizure:-- Wong Sun v. US

Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Police received tip from untested informant: “I bought drugs from Blackie Toy at the laundry on Leavenworth St.”

Cops went to Toy’s business and residence (Toy’s laundry)- No search warrant, knock-notice violation, illegal arrest (no prob cause to

believe Toy was in possession of drugs)- No drugs found- Fruits of the poisonous tree: Toy’s running down the hall (no exigency),

statements in his bedroom (“I know somebody who has been selling drugs. Johnny keeps an ounce there. We smoked some heroin last night.”)

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Toy is arraigned, days later gives voluntary statement at Narcotics Bureau Cops then went to Yee’s residence (due to the illegal statement obtained by

Toy)- Illegal entry (warrantless)- Yee surrenders several tubes of heroin (still poisonous fruit as to Toy and

Yee because the narcotics were “come at by the exploitation of that illegality [the lawless search and seizure of Toy]”, but NOT a fruit of the poisonous tree as to Wong Sun; none of Wong Sun’s rights were violated, so the evidence is admissible as to Wong Sun only)

- Yee said: “Toy and Sea Dog (Wong Sun) brought the drugs to me 4 days ago.” (also admissible against Wong Sun only)

Cops then went to Wong Sun’s residence- Illegal arrest (no probable cause or arrest warrant)- Apartment searched, no drugs found

Wong Sun is released. Days later, he gives a voluntary confession. (admissible—attenuation factors; the connection between Wong sun’s arrest and his statement had become so attenuated as to dissipate the taint.)

Petitioners challenged an order that affirmed the judgments that convicted them of narcotics transportation and concealment after a bench trial. Petitioners argued that the evidence admitted at the trial was inadmissible as the fruits of unlawful arrests or searches. Petitioners were arrested after a suspect under surveillance was held with narcotics, and had led the federal agents to the first petitioner as his source. The challenged evidence included the heroin surrendered to the police and the statements made orally by the second petitioner in his bedroom at the time of his arrest, and a pretrial unsigned confessions of both petitioners.

The appeals court held that the arrests were illegal for lack of probable cause, but that the challenged evidence was not fruit of the illegal arrests and therefore was admissible. Petitioners argued that even if their confessions were declarations against interest, they were not binding on the other petitioner. On appeal, the court held that an out-of-court declaration made after an arrest may not be used at the trial against one of the declarant's partners in a crime unless the statement was made in furtherance of the criminal undertaking.

The convictions were vacated and petitioners were granted a new trial based on a chain of inferences indicating prejudicial error in that the trial court may have considered each petitioner's statement as corroboration of the other petitioner's guilt, thus violating the rule that a co-conspirator's hearsay statements were admissible against an accused only if made during and in furtherance of the conspiracy (evidence issue).

It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information that constitutes probable cause -- evidence which would warrant a man of reasonable caution in the belief that a felony has been committed, -- must be measured by the facts of the particular case. 

The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.

The policies underlying the exclusionary rule do not invite any logical distinction between physical and verbal evidence. The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows that the U.S. Const. amend. IV may protect against the overhearing of verbal statements as

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well as against the more traditional seizure of "papers and effects." Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest is no less the "fruit" of official illegality than the more common tangible fruits of the unwarranted intrusion.

Under some circumstances it is unreasonable to infer that a defendant's response is sufficiently an act of free will to purge the primary taint of an unlawful invasion. 

Independent source or inevitable discovery: -- A violation of a person’s rights should not put him beyond the law’s reach if his

guilt can be established by evidence unconnected with or untainted by the violation.

-- Evidence that would inevitably or eventually or probably have been discovered lawfully is untainted—usually applied when the police misconduct occurred while an investigation was already in progress and resulted in the discovery of evidence that eventually would have been discovered through routine investigatory procedure.

Confession as the fruit of an illegal arrest:-- Miranda warnings, by themselves, do not break the causal connection between an

illegal arrest and a confession. Instead, the totality of the circumstances and the attenuation factors must be considered. Brown v. Illinois

Identification of a person as a fruit of an illegal arrest:-- US v. Crews—An armed robbery suspect was illegally arrested, but the victim’s

courtroom identification of him was not suppressed. A victim's in-court identification of the accused has three distinct elements. First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender. None of these 3 elements had been come at by exploitation of the defendant’s 4th Am rights.

Confession as the fruit of a Payton violation:-- Payton v. NY held that the 4th Am prohibits the police from effecting a warrantless

entry into a suspect’s home in order to make a routine felony arrest. In NY v. Harris, it was held that where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a statement outside his home even though the statement is obtained after an in-house arrest in violation of Payton.

“Tainted” witness:-- In US v. Ceccolini, a cop casually visited a florist where he illegally picked up an

envelope and found it to contain money and policy slips. Without seeing the cop look inside the envelope, the worker admitted the envelope belonged to the shop owner. Still without knowing about the cop’s discovery, the employee testified before a grand jury and at trial against the owner. The witness was not tainted. The court denied to adopt a per se rule that the testimony of a live witness should always be admissible but noted that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness (because there is less incentive to make an illegal search when the witness is cooperative).

Inevitable Discovery Doctrine-- The "inevitable discovery" doctrine allows the government to use evidence that it

obtained illegally but would have obtained legally in any event. Brewer v. 23

Williams-- In Nix v. Williams, (the second trial of Williams from Brewer v. Williams), the

Court upheld the inevitable discovery doctrine and additionally held that the prosecution is not required to prove the absence of bad faith.

-- The inevitable discovery doctrine does not apply if police could have or might have discovered the evidence, only if they would have.

-- US v. Johnson (F.3d)—An illegal search of other people that would have turned up the incriminating evidence actually seized illegally from the defendant does not allow the prosecution to use that evidence.

Use of Illegally Obtained Evidence for Impeachment Purposes (impeachment of credibility)

Walder v. US—Defendant testified that he’d never possessed or sold drugs, in contrast to illegally seized heroin found in his home in an earlier, unrelated case. A defendant must be free to deny all the elements of the case against him without giving leave to the government to introduce by way of rebuttal evidence illegally secured, but there is no justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the government’s inability to challenge his credibility.-- Distinguish: In Agnello v. US, the gvt was denied from “smuggling in” tainted

evidence on cross-examination by asking the D if he’d ever seen the narcotics before.

Harris v. NY-- During cross-examination at his trial, defendant was questioned regarding

specified statements defendant made to the police immediately following his arrest. Defendant claimed he knew the officer (to whom he sold heroin) but denied selling heroin to the undercover officer. The statements partially contradicted defendant's direct testimony, and the state sought to impeach defendant with his statements. However, the State made no effort to use the statements in its case in chief, conceding that the statements were inadmissible due to a defective Miranda warning. Defendant was subsequently convicted of selling heroin to an undercover police officer, and the appellate court affirmed defendant's conviction. On appeal, the court held that Miranda did not prevent the state from using defendant's statement to the police to confront defendant with prior inconsistent utterances. Thus, the court concluded that defendant's credibility was appropriately impeached by use of his earlier conflicting statements.

-- The statements made before they take him out of the house are suppressed.-- The statements made after they removed him from the home and after he was

arrested and waived his Miranda rights were admissible for purposes of impeachment.

-- Miranda bars the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

-- This is counter-intuitive to the rule in Payton below.Oregon v. Hass—After being advised of his rights, Hass asserted them—he asked for a

lawyer. The police refused to honor his request and continued to question him. The resulting statements were approved as use for impeachment purposes.

People v. Peevy (P.2d California)—The court extended the Hass exception when a police officer deliberately failed to honor a suspect’s request for counsel for the very purpose of obtaining evidence for impeachment purposes.

US v. Havens—A defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise

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proper impeachment by the gvt, albeit by evidence that has been illegally obtained (evidence illegally obtained can also be used for impeachment of statements made in cross-examination, in addition to statements made on direct examination).

James v. Illinois—Defendant can be impeached by his own prior inconsistent statements, but not by the inconsistent statements of other persons. Deterrence for witnesses lying to benefit the defendant comes in the form of perjury charges.

F. WARRANTLESS SEARCHES

1. Detentions, Stop and Frisk, and Temporary Seizures

3 questions for detentions analyses-- (1) Has the officer detained the suspect (has he been seized for 4th Am purposes—

reasonable person would not have felt free to leave in the person’s shoes)?-- (2) Is that detention founded up on the necessary reasonable suspicion?-- (3) If (1) and (2) are met, did the detention become overly prolonged at some

point?Terry v. Ohio

-- Petitioner sought review of his conviction for carrying a concealed weapon, contending that the weapon seized from him was obtained through an illegal search, under U.S. Const. amend. IV, and that the trial court improperly denied his motion to suppress. On certiorari the USSC affirmed petitioner's conviction. The Court ruled that despite the fact that the arresting police officer lacked probable cause to arrest petitioner at the time he made the "stop and frisk" warrantless intrusion upon petitioner that produced the weapon at issue, the search satisfied the conditions of U.S. Const. amend. IV: the officer had a reasonable suspicion, based upon his experience, that petitioner and his companions were about to commit a daytime robbery, and his belief that petitioner was presently armed, dangerous, and posed a threat to him and to others justified both the officer's "stop" of petitioner and the "frisk," or pat-down, of petitioner's overcoat. Furthermore, the court ruled that the search of the outer clothing of petitioner and his companions was properly limited in time and scope in order for him to determine the presence of weapons and to neutralize the danger posed.

-- Court balanced the neutralization of danger to the policeman in the investigative circumstances and the sanctity of the individual.

-- For a valid stop and frisk, the officer must show specific and articulable facts from which the reasonable police officer could indicate that the suspect is presently armed and dangerous to the officer and others nearby.

-- The sole justification of the search in this situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns knives, clubs, or other hidden instruments for the assault of the police officer.

US v. Mendenhall-- Defendant was convicted of possessing heroin with intent to distribute after the

district court denied her motion to suppress the introduction of the heroin at trial. The lower appellate court reversed, holding that defendant's consent to the search of her person had not been voluntarily given. On appeal, the court reversed the judgment of the lower appellate court. The court held that defendant was not seized when she was approached by the federal agents who asked to see her ticket and identification, even though defendant was not expressly told that she was free to decline to cooperate with their inquiry. The court held that a person had been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed

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that she was not free to leave. The court held that the totality of the evidence was adequate to support the district court's findings that defendant voluntarily consented to accompany the officers and that defendant consented to the search of her person freely and voluntarily.

-- Stewart majority: no seizure because her conduct was entirely consensual; there is only a seizure if all circumstances surrounding the incident would cause the reasonable person to believe that she was not free to leave

-- Powell concurrence: she was seized, but it was reasonable because there was a reasonable suspicion; reasonableness based on the balancing test of Camara and Terry—governmental interest served by the seizure v. the nature and scope of intrusion on individual

-- White dissent: she was seized, and it was unreasonable-- Former Mendenhall Test for determining if there is a detention started by

the police: (1) Would the suspect reasonably feel free to leave?

-- Current Hodari D. Test for determining if there is a detention started by the police: (1) Has the officer made physical contact with the suspect OR has the

suspect submitted to the officer’s authority? -- Analyze BOTH the former Mendenhall and the current Hodari D. tests on an

exam.-- If there is a detention, is it supported by the necessary “reasonable

suspicion”?-- Even if the detention was justified at its inception, has it become overly

prolonged and thus illegal?People v. Spicer (Cal. App. 3d)

-- Defendant was a passenger in the vehicle of a person pulled over under suspicion of driving while intoxicated. A officer walked to the passenger side of the car with his flashlight illuminated and asked defendant to produce a driver's license; when she began looking in her purse, the officer saw the butt of a handgun. The officer arrested defendant after recovering a .38 caliber revolver, fully loaded. Defendant sought to suppress the discovery of the handgun; the trial court granted the motion. The appellate division reversed. On further review, the court reversed the appellate division and affirmed the grant of the motion to suppress holding that a detention occurred where in view of the circumstances defendant believed she was not free to leave. Approaching the defendant as she sat in the passenger seat and requesting the production of her driver's license constituted a detention. The location where contact had taken place and the nature of the questions asked by the officer was a important factor in determining if a seizure had occurred. A detention could be justified only upon a reasonable suspicion of criminal misconduct.

-- When the police told her to show her license, there was a detention. There was no reasonable suspicion as to Spicer because a reasonable person would not have felt free to leave.

-- 3 levels of police contact: (1) consensual encounter (“citizen contact”) (2) detention (temporary seizure)—limited investigatory seizure based on

reasonable suspicion that the person is engaged in criminal activity (3) full-fledged arrest—requires probable cause

Florida v. Bostick-- 2 officers walked up to Bostick on a bus that was about to leave, asked him a few

questions, and asked if they could search his bags; they did not point guns at him or other wise threaten him and they specifically advised him that he could refuse

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consent.-- A seizure does not occur simply because a police officer approaches an

individual and asks a few questions or asks to search the person. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger 4th Am scrutiny unless it loses its consensual nature.

-- Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search his or her luggage—as long as the police do not convey a message that compliance with their requests is required.

-- Whether a person feels free to leave is not the correct inquiry; the correct inquiry is an objective standard—would the reasonable person feel free to decline the officers’ requests or otherwise terminate the encounter is the correct inquiry.

-- Where the encounter takes place is one factor, but only one. The correct inquiry is whether a reasonable person would have felt free to decline and go about his business.

INS v. Delgado-- The IN visited factories at random and questioned employees to determine if they

were illegal aliens. Several INS agents stood near the exits while others strolled through the factory questioning workers. The workers might not have felt free to leave, but that was not the result of police activity.

-- There was no seizure because, even though the workers were not free to leave the building without being questioned, the agents’ conduct should have given employees ‘no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer.’

US v. Drayton-- The fact that an encounter takes place on a bus does not on its own transform

standard police question of citizens into an illegal seizure.-- If the encounter had taken place on the street, it would have been constitutional.

There was no blocking of exits, application of force, intimidating movement, overwhelming show of force, brandishing weapons, threats, commands, nor an authoritative tone of voice.

California v. Hodari D.-- Hodari fled upon seeing an approaching police officer and was then pursued on

foot by an officer, after which Hodari tossed away a crack rock.-- A police pursuit in attempting to seize a person does not amount to a seizure

within the meaning of the 4th Am.-- With respect to a show of authority as with respect to application of physical

force, a seizure does not occur if the subject does not yield.-- Current Hodari D. Test for determining if there is a detention started by the

police: (1) Has the officer made physical contact with the suspect or has the suspect

submitted to the officer’s authority? Either of these establishes a detention under the current test.

(2) If there is a detention under (1), is it supported by the necessary “reasonable suspicion”?

(3) Even if the detention was justified at its inception, has it become overly prolonged and thus illegal?

-- Analyze BOTH the former Mendenhall and the current Hodari D. tests on an exam.

Specific, objectively observable characteristics such as race and age should be 27

considered in determining whether a seizure occurred.

GROUNDS FOR TEMPORARY SEIZURE FOR INVESTIGATION

Grounds needed for a Detention:-- Based on the totality of the circumstances, detaining officers must have a

particularized and objective basis for suspecting the particular person stopped of criminal activity.

Grounds needed for a full-fledged arrest:-- It must be more probable than not that the person is the offender.

Sibron v. NY-- Police officer observed Sibron talking to several persons he knew to be drug

addicts. He saw nothing pass between them. The officer approached Sibron and eventually reached into his pocket and found heroin. This was an illegal search and seizure.

-- The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.

-- Issue 1: Detention? If so, reasonable suspicion to demand that Sibron come outside the restaurant? Mendenhall detention AND Hodari D. detention. Illegal detention since there was no reasonable suspicion. Court implies there

was no reasonable suspicion.-- Issue 2: Probable cause for the search (reaching into the pocket)?

No probable cause.Florida v. J.L.

-- An anonymous caller reported to police that a young black man standing at a particular bus stop and wearing a plaid shirt was carrying a gun; officers went there and saw such a person but did not see a firearm or any unusual movements, and had no reason to suspect him apart from the tip. The frisk of this man was found to be an unreasonable Detention.

-- An anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity. However, there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.

-- In Alabama v. White, the Court held that an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel was not enough to justify a detention. Only after police observation showed that the informant had accurately predicted the woman’s movements, did it become reasonable to think the tipster had inside knowledge about he suspect and therefore to credit his assertion about the cocaine. White was a borderline case, so the stop in this case was definitely unreasonable.

US v. Sokolow-- Facts revealing that Sokolow matched the profile of a drug courier was enough to

establish the appropriate level of suspicion for a detention.US v. Hensley

-- If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Detention may be made to investigate that suspicion.

Illinois v. Wardlow-- A police officer in a caravan of cars, which was converging on an area known for

heavy narcotics trafficking in order to investigate drug transactions, saw 28

defendant look in the direction of the officers and then run away; defendant was stopped and frisked and found to be carrying a handgun.

-- Presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.

-- Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. The totality of the circumstances, as always, must determine reasonableness.

-- The detention did not violate Wardlow’s 4th Am rights because an individual’s presence in an area of expected criminal activity combined with a particularized suspicion that the person is committing a crime (such as the person fleeing) is enough to establish a reasonable suspicion that the person may be involved in criminal activity.

PERMISSIBLE EXTENT AND SCOPE OF TEMPORARY SEIZURE

Florida v. Royer-- Detectives questioned Royer on an airport concourse and then asked him to

accompany them to a small room about 40 ft. away. His luggage was brought to the room and then he was asked to consent to the search of his luggage, which he did.

-- At the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity. The officers relocated him to a police interrogation room and their conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized by a Detention.

-- Overly prolonged (illegal) detention—they held Royer too long and held his luggage way too long.

US v. Sharpe-- A federal drug agent, patrolling in an unmarked car in a highway area under

surveillance for drug trafficking, saw an apparently overloaded camper truck traveling in tandem with a Pontiac. The agent called for backup; a patrolman attempted to stop the vehicles, but only the Pontiac pulled over. The truck continued on, pursued by the patrolman. They finally caught up with the truck. After smelling marijuana, the patrolman opened the truck and saw bales of marijuana and then arrested the driver of the truck. The truck driver argued that the 20-minute stop lasted too long.

-- There is no rigid time limitation on detentions. In evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern rigid criteria. It should be examined 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.

-- The delay was not unreasonable because it was mostly attributable to the defendant’s evasive actions; most of the 20 minutes was spent trying to reach the patrolman and to obtain additional assistance, and when the agent reached the defendant, he proceeded expeditiously.

Illinois v. Caballes-- Caballes is stopped for speeding. An officer conducted a drug dog sniff was

conducted while his ticket was being written up by a different officer. Since the sniff was conducted during the reasonable detention time, it did not prolong the detention.

-- A drug dog sniff is not a search if completed within the time it takes to 29

complete legitimate actions related to the initial lawful detention.-- A seizure that is justified solely by the interest in issuing a warning ticket to

the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission (or if the type of investigation is shifted without a reasonable suspicion—e.g., from a traffic stop to a drug investigation).

-- A drug dog sniff is not an unlawful search (and is therefore not a drug investigation).

Ohio v. Robinette-- D stopped for speeding, issued a verbal warning, license returned. Officer then

asked D if he had drugs in the car; when D answered no, deputy asked to search the car and D consented. Search resulted in a small amt of pot and a pill.

-- State Supreme Ct held the evidence was inadmissible because citizens stopped for traffic offenses must be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation.

-- USSC disagreed and concluded the extended detention and search were reasonable, and the evidence was admissible. Requiring such warnings would be impractical.

Temporary Seizures of EffectsUS v. Van Leeuwen

-- Postal clerk advised an officer that he was suspicious of 2 packages of coins just mailed. The officer noted that the return address was fake and the man who mailed the packages had Canadian plates. Investigation disclosed that the addressees were under investigation for trafficking illegal coins. A search warrant was obtained after the packages were held over for a day.

-- Although detention of mail can at some point become an unreasonable seizure of papers or effects, the warrantless detention in this case was reasonable because the investigation was conducted promptly and most of the delay was attributable to the fact that because of the time differential the Tennessee authorities could not be reached until the following day.

US v. Place -- Federal agents seized luggage from a suspected drug courier, took it to another

airport where a drug dog reacted positively to one bag and ambiguously to another. The bags were held from Friday to Monday morning, when a search warrant was obtained for the first bag. Cocaine was found in execution of the warrant.

-- When the police seize luggage from the suspect’s custody, the limitations applicable to investigative detentions of the person define the permissible scope of the investigative detention of the person’s luggage on less than probable cause.

-- Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop.

-- The police did not diligently pursue their investigation; the NY agents knew of the time of Place’s scheduled arrival, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent’s 4th Am interests.

-- A 90-minute detention has never been approved, and cannot on the facts of this case.

-- The 90-minute detention of respondent’s luggage is sufficient to render the seizure unreasonable, and the violation was exacerbated by the failure of the agents to accurately inform him of the place to which they were transporting his luggage, the length of time he might be dispossessed, and of what

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arrangements would be made for return of the luggage if the investigation dispelled the suspicion.

PROTECTIVE SEARCH

Sibron—The officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

In Adams v. Williams, the officer had ample reason to fear for his own safety upon being told by an informant that D was carrying narcotics and had a gun at his waist, especially when Williams rolled down his window rather than stepping out of the car as ordered.

How extensive of a pat-down is permissible? -- Terry v. Ohio—The officer must feel with sensitive fingers every portion of the

prisoner’s body. A thorough search must be made of the person’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.

-- Minnesota v. Dickerson—officer, frisking for weapons, felt a small lump in pocket and determined it was contraband only after squeezing and sliding and otherwise manipulating the outside of the pocket; after officer knew it contained no weapon, the officer overstepped the bounds of the strictly circumscribed search for weapons allowed under Terry.

Michigan v. Long-- Car swerved into ditch and stopped, officer stopped to investigate. Long exited

the car and officers saw a long hunting knife in the car. The officers frisked him and searched his car and found pot.

-- The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, 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 warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

-- Reasonable because Long could have broken away from police control to retrieve a weapon from his car.

State v. Flynn (N.W.2d)—A suspect lawfully stopped for investigation of a just-completed burglary admitted he had id in his wallet but refused to identify himself. The officer’s removal of his wallet was reasonable under the Terry balancing test.

People v. Williams (N.W.2d)—even though officer had good reason to believe suspect was lying when he said he had no id, looking in his wallet at driver’s license violated 4th Am)

OTHER BRIEF DETENTION FOR INVESTIGATION

Davis v. Mississippi-- 25 black guys including Davis were detained for questioning and fingerprinting in

connection with a rape. There was no probable cause that one of them had done it. The fact that it was highly likely that one of the 25 had committed the crime was not enough to detain them.

-- Detentions for the sole purpose of fingerprinting are subject to the constraints of the 4th Am.

-- No probable cause, therefore illegal prolonged detention. Davis’s prints matched those at the scene, but the evidence was suppressed.

The 4th Am is not violated by subpoenaing witnesses to appear before a grand jury to give voice exemplars or handwriting samples because no reop exists as to

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those.Some jxs allow brief detention at the station (usually pursuant to court order) on

less than the grounds needed to arrest, for the purpose of conducting certain id procedures.

In re Fingerprinting of M.B. (N.J. Superior Ct)-- A high school class ring and fingerprints were found at the scene of a homicide.-- Upon request of the prosecutor, court ordered all male members of that graduating

class to submit to fingerprinting.-- Reasonable because there was a substantial basis to suspect one of the male

members of the class.Dunaway v. NY (exam issue)

-- Police had strong suspicion, but no probable cause that Dunaway committed the robbery and homicide. The police picked him up for questioning. He was placed in an interrogation room at police headquarters, where he was questioned after being given Miranda warnings. He gave incriminating statements within an hour.

-- Statements were the fruit of the poisonous tree. The seizure without probable cause and 6-hour detention was a de facto arrest. Petitioner was not free to leave.

-- Detention for custodial interrogation, whether a technical arrest or not, must be supported by probable cause because it intrudes so severely on the interests protected by the 4th Am.

2. Warrantless Searches of Premises

SEARCH OF PREMISES INCIDENT TO AND AFTER ARREST THEREIN

Chimel v. California-- Police showed up to arrest Chimel at his home with a valid arrest warrant for the

burglary of a coin shop, but had to wait 10-15 minutes for him to get home from work after being let in by Chimel’s wife. When he got home, the officers handed him the arrest warrant and asked him for permission to look around. Chimel objected but was advised that “on the basis of the lawful arrest,” the officers would nonetheless conduct a search. No search warrant had been issued. Accompanied by Chimel’s wife, the police searched the entire house in an exploratory manner for 45 minutes to an hour. The officers seized coins, medals, tokens, and a few other objects. The items were admitted at trial and Chimel was convicted of burglary.

-- Issue: Whether the warrantless search of the petitioner’s entire house can be constitutionally justified as incident to that arrest.

-- US v. Rabinowitz (forged stamps case)—The right to search the place where the arrest is made in order to find and seize things connected with the crime is based on whether the search was reasonable, not on whether it is reasonable to procure a search warrant. A warrantless search incident to a lawful arrest may generally extent to the area that is considered to be in the possession or under the control of the person arrested. The Rabinowitz rule is overly broad as applied in this case.

-- Harris allowed the search of an entire 4-bedroom apartment under a rule similar to the one in Rabinowitz.

-- Agnello v. US—Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. Such searches are held unlawful notwithstanding facts unquestionably showing probable cause.

-- Rabinowitz and Harris are overruled.32

-- When an arrest is made, the officer may search the person and the area within his immediate control for the safety of the officer and those nearby and to prevent destruction of evidence. There is no comparable justification for an exploratory search pursuant to an arrest without an arrest warrant.

-- The search in this case was therefore unreasonable.-- Dissent:

It is unreasonable to require police to leave the scene of a valid arrest in order to obtain a search warrant when they already have probable cause to search and there is a clear danger that the items for which they may reasonably search will be removed before they return with a warrant.

The fact that there is an arrest supplies an exigent circumstance justifying police action before the evidence can be removed.

When it is necessary for the arrestee to put on street clothes—If suspect is arrested with a valid arrest warrant at the door of a residence, police may accompany the suspect to put on street clothes and may search areas before they are accessed by the suspect, even without a search warrant (e.g., closets, drawers, etc.). Giacalone v. Lucas

When the officers are acting for their own protection—The arresting officers had reason to believe that there were numerous persons in the residence. Incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look into closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. The sweep must last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Maryland v. Bui

When the officers are seeking other offenders—People v. Block—officers knocked on door to check out tip concerning narcotics suspect; when door was opened, they smelled pot; 5 people with the smell on their breaths were arrested; one of the officers then went upstairs and looked into bedrooms and found marijuana; since there was an undetermined number of participants and the upstairs light was on, the officers had reasonable cause to believe other participants might be present.

In some circumstances, a warrantless entry of premises will be permissible incident to and following an arrest elsewhere. Washington v. Chrisman—campus cop arrested an underage student for carrying gin out of a dorm, accompanied him back to his room so that he could get his id, and there observed marijuana seeds and a pipe. The entry was lawful. It is reasonable for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest.

WARRANTLESS SEIZURES WHILE IN PREMISES TO ARREST

If an officer is lawfully present within premises to make an arrest, he may observe certain items not within the “immediate control” of the arrestee which will nonetheless be subject to warrantless seizure under the so-called “plain view” doctrine, but only where it is immediately apparent to the police that they have evidence before them. The plain view doctrine may not be used to extend to a general exploratory search.

Arizona v. Hicks-- Police lawfully entered premises from which a weapon was fired, and within one

officer noticed 2 sets of expensive stereo components, which seemed out of place in the apartment. Suspecting they were stolen, the he read and recorded their serial numbers—moving some of the components, including a turntable, in order to do so—which he then reported by phone. On being advised that the turntable

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was stolen, he seized it immediately. It was later determined that some of the other items were stolen, and a warrant was obtained and executed to seize that equipment. Moving of the turntable to find the serial number was an unreasonable search.

WARRANTLESS SEARCH OF PREMISES UNDER EXIGENT CIRCUMSTANCES

Vale v. Louisiana-- Police had a strong suspicion that they had seen a narcotics sale because Vale (for

whom they had 2 arrest warrants) walked out of the house, suspiciously looked up and down the street several times, and leaned through a car occupied by someone. The police blocked the car and saw the driver put something in his mouth. Vale was arrested on his front steps and the police advised him they were going to search the house. Narcotics were found in the rear bedroom. The search was invalid.

-- An arrest on the street cannot provide its own exigent circumstance so as to justify a warrantless search of the arrestee’s house.

-- A search may be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. If a search of a house is to be upheld as incident to arrest, that arrest must take place inside the house, not somewhere outside—not even on the front porch.

US v. Rubin-- Cops received reliable info that a bronze statute containing a large shipment of

drugs would be shipped to a hospital in a certain area. Agents waited for a certain crate at the airport and a crate fitting that description arrived from abroad. It was inspected and contained drugs. The crate was taken to a certain address and Rubin was arrested. He yelled to spectators to call his brother, so the cops searched the house in fear of destruction of the narcotics. Valid warrantless search due to exigency.

-- The court upheld a warrantless search pursuant to this test: “when gvt agents have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified.

-- Case-to-case basis, but courts have found these circumstances relevant: (1) degree of urgency involved and the amt of time necessary to obtain a warrant, (2) reasonable belief that the contraband is about to be removed, (3) possibility of danger to cops guarding the site of the contraband while a warrant is sought, (4) info indicating the possessors of the contraband are aware that the police are on their trail, (5) and the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

-- Reasonable inference that the evidence will be destroyed—exigency. Therefore, no warrant required. Very important case for the exigency exception.

-- Police did not create the exigencyState v. Hendrix (Tennessee)—proper for police to phone residence with an anonymous

false tip that police were on their way there with search warrant, causing defendant to leave with drugs in car, which was then stopped and searched.

Mincey v. Arizona—the seriousness of the offense under investigation itself does not create exigent circumstances of the kind that under the 4th Am justify a warrantless search. [USSC overruled the “homicide exception” created by several states: when the police are summoned to the scene of a homicide they may remain on

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those premises without a warrant (and, perhaps, return after a brief absence) to conduct a general investigation in to the cause of death.]

Flippo v. West Virginia—after D’s 911 call that he and his wife had been attacked at a cabin in a state park, cops arrived a the scene and found D outside wounded and his wife inside dead. The contents of a briefcase near the body, found upon a warrantless police reentry and search several hours later, were held inadmissible.

When evidence of a crime is fortuitously discovered by the police w/o a warrant while they are performing other fxns, courts find it necessary to assess the reasonableness of the police conduct under the 4th Am.

Payton v. New York-- This case deals with 2 lawsuits:

(1) Payton v. New York—Payton had murdered the manager of a gas station and police tried to arrest him with probable cause but without a warrant 2 days later. They went to his apt, broke in, and saw a bullet shell casing that was seized and later admitted into evidence at the murder trial.

(2) Obie Riddick was arrested with probable cause but without a warrant for the commission of 2 armed robberies. His son opened the door and cops could see him in the bed. They entered the house and placed him under arrest. Before permitting him to dress, they opened a chest of drawers by his bed in search of weapons and found narcotics and paraphernalia.

-- Both were reversed because the evidence was fruit of the poisonous tree. The cops should not have entered the home without an arrest warrant.

-- An arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. However, absent exigent circumstances, a police officer cannot enter the dwelling of a suspect without an arrest warrant.

-- Warrantless arrests in public places are valid. However, a greater burden is placed on officials who enter a home or dwelling without consent.

-- Searches and seizures inside a home without a warrant are presumptively unreasonable.

-- Objects such as weapons or contraband found in a public place may be seized by the police w/o a warrant.

-- The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. Absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.

Some circumstances allow warrantless entries to arrest:-- Exigency: Warden v. Hayden—police were reliably informed that an armed

robber had entered a house five minutes earlier; the entry was reasonable because the 4th Am doesn’t require that police delay in the course of an investigation if to do so would gravely endanger lives.

-- Police can attempt to make an arrest in a doorway because it is a public place. US v. Santana

Considerations for determining whether there are exceptional circumstances which allow for police to enter a home without an arrest warrant (Dorman factors):-- (1) that a grave offense is involved, particularly one that is a crime of violence-- (2) that the suspect is reasonably believed to be armed-- (3) that there exists not merely the minimum of probable cause, that is requisite

even when a warrant has been issued, but beyond that a clear showing of probable cause, including reasonably trustworthy information, to believe that the suspect

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committed the crime involved-- (5) strong reason to believe that the suspect is in the premises being entered-- (4) a likelihood that the suspect will escape if not swiftly apprehended-- (6) the circumstance that the entry, though not consented, is made peaceably-- (7) time of entry—whether it is made at night; this works in either direction—a

night entry raises a concern over its reasonableness, but a elevate the degree of probable cause required, both as implicating the suspect and as showing that he is in the place entered

Welsh v. Wisconsin—Welsh was arrested in his own home after a witness saw him nearby driving erratically into a ditch and then departing on foot in an inebriated condition. Focusing on the 1st Dorman factor, the court held that the entry was unreasonable because a noncriminal, traffic offense is an unconvincing claim of hot pursuit.

Steagald v. US—police entered his home in an effort to find Lyons, for whom they had an arrest warrant; they did not find Lyons but found drugs in plain view, resulting in Steagald’s conviction. The entry without a warrant to find a 3rd person was unreasonable.

Reading 31, Problem 9, Question 2--

3. The Automobile Exception

See Dressler book for this subject - 217-239Searches involving vehicles

-- Important rule: Citizens have a lesser expectation of privacy in their automobiles, recreational vehicles, trucks, and boats than they do in their homes and offices. Automobile exception:

- probable cause required- reasonably mobile--see dressler: California v. Carney

Search incident to arrest: A valid custodial arrest is required (custodial = defendant will be taken to jail and booked into custody). New York v. Belton- Scope: entire passenger compartment including glove box, but NOT trunk

(exam bait) Inventory: not a search for a criminal purpose. California v. Bertine Weapons search (officer safety): Michigan v. Long Consent

California v. Carney-- After receiving information that the exchange of marijuana for sex was taking

place at defendant's motor home, which was parked on a public lot, law enforcement officials observed defendant and a youth enter the mobile home. The youth later stated that he received marijuana in exchange for sexual contacts with defendant. Without a warrant or consent, one agent entered the motor home and observed marijuana. Defendant was convicted for possession of marijuana for sale. Ultimately, the state supreme court reversed, holding that the warrantless search of the motor home was unreasonable as the vehicle exception to the warrant requirement did not apply. On certiorari, the United States Supreme Court reversed, holding that defendant's motor home clearly fell within the vehicle exception to the warrant requirement because it was readily mobile and was situated in a way or place that objectively indicated that it was being used as a vehicle.

-- A readily mobile mobile home situated in a way or place that objectively indicates it may be used as a vehicle falls within the automobile exception of the warrant requirement.

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-- A court might also consider whether a mobile home is on cinder blocks, whether it is registered, has access to a public road, whether it is connected to utilities, etc.

Maryland v. Dyson—The automobile exception to the warrant requirement does NOT have a separate exigency requirement.

Florida v. White—The warrantless seizure of a car based on probable cause that the car is contraband is a lawful seizure. The need to seize quickly is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.

Chambers v. Maroney—Even if no warrant need first be obtained, probable cause to search a particular auto for particular articles is required in order to ascertain whether an otherwise lawful warrantless search of a vehicle was properly limited in scope and intensity.

California v. Acevedo—read and rebrief, 237-240 in dressler-- Daza picked up froma FedEx office a package the police knew contained pot and

took it to his apartment. 2 hrs later, Acevedo entered and shortly thereafter left carrying a brown paper bag the size of one of the wrapped pot packages. He placed the bag in the trunk of his car and drove off; the police stopped him, opened the trunk and bag, and found pot. The USSC held that the police can search containers found in an automobile without a warrant if their search is supported by probable cause, but they may search the container ONLY; the scope of the search does not extend to the entire automobile.

-- The Court held that the Fourth Amendment did not require the police to obtain a warrant to open the sack in a movable vehicle simply because they lacked probable cause to search the entire car. The same probable cause to believe that a container held drugs allowed the police to arrest the person transporting the container and search it. The police had probable cause to believe that the paper bag in the car's trunk contained marijuana and probable cause allowed a warrantless search of the paper bag. The Fourth Amendment did not compel separate treatment for an automobile search that extended only to a container within the vehicle.

Wyoming v. Houghton-- A car in which appellee individual was riding was stopped by a police officer

employed by appellant state. The officer noticed a syringe in the driver's shirt pocket. The driver admitted the syringe was used to take drugs. The officer then began a search of the passenger compartment of the car for contraband. He found a purse, which appellee claimed was hers. Inside, the officer found two containers; both contained illegal methamphetamine. Subsequently, appellant charged appellee with felony possession of methamphetamine. The trial court denied appellee's motion to suppress all evidence obtained from the purse as the fruit of a violation of U.S. Const. amends. IV and XIV. The trial court held that the officer had probable cause to search the car for contraband and any containers therein that could hold contraband. A jury convicted appellee as charged. Appellee sought review, and the state supreme court reversed. Appellant sought further review. The United States Supreme Court reversed, holding that the officer was entitled to inspect appellee's belongings found in the car that were capable of concealing the object of the search because he had probable cause to search the car.

-- Contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant where probable cause exists.

-- If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. This applies broadly to all containers within a car,

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without qualification as to ownership.Texas v. Brown

-- The automobile driver was convicted for possession of heroin, in violation of state law, but the conviction was reversed based on suppression of evidence obtained in violation of the Fourth Amendment. On review, the State contended that the evidence should not have been suppressed because the "plain view" doctrine justified the seizure. The United States Supreme Court agreed and reversed and remanded for further proceedings. The seizure of property in plain view involved no invasion of privacy and was presumptively reasonable, assuming that there was probable cause to associate the property with criminal activity. In this case, the arresting officer had lawfully viewed the green balloon at issue in the interior of the automobile driver's vehicle. The officer also had probable cause to believe that the balloon was subject to seizure under U.S. Const. amend. IV. Accordingly, the plain view exception to the warrant requirement applied.

-- The plain view doctrine applies to vehicles.Thornton v. US

-- A police officer determined that defendant's vehicle had improper license tags, but defendant parked and exited the vehicle before the officer had an opportunity to stop the vehicle. Upon contacting defendant and discovering drugs on his person, the officer arrested defendant, searched the passenger compartment of the vehicle, and discovered the firearm. Defendant contended that the officer's authority to search a vehicle upon arresting the occupant did not apply where defendant was contacted after exiting the vehicle. The United States Supreme Court held, however, that the officer was allowed to search the passenger compartment of defendant's vehicle incident to the lawful custodial arrest of defendant as a recent occupant of the vehicle. The authority for the vehicle search was not limited to arrests of persons actually occupying vehicles at the time of initial contacts with officers, since the same interests in the safety of the officer and preservation of evidence applied to both occupants and recent occupants of a vehicle.

-- When a car is stopped by the police and it has gone beyond citation (valid custodial arrest for misdemeanor or felony), the officer may search anything within the passenger compartment including the glove box, but cannot search the trunk or a luggage compartment on top of the car without more. NewYork v. Belton.

-- Justification: officer safety.Colorado v. Bertine (INVENTORY SEARCHES)

-- Many police departments have vehicle inventory search policies—requires an inventory of impounded vehicle and contents for 2 purposes: (1) to protect the department from false claims of loss and (2) for proper return of vehicle and items within. These searches are not for criminal purposes. There is no probable cause necessary if there is a department policy. The scope is limited to what is listed on the department impound form (what is required by the department). Items are admissible if they are in plain view.

-- Give rationale on exam-- Evidence will be inadmissible if there is no departmental policy limiting the

officers from exploratory searches.-- There is no requirement that the inventory policy be in writing.-- The state court held that searches of closed trunks and suitcases violated the

Fourth Amendment. The United States Supreme Court reversed. There was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. The police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Reasonable police

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regulations relating to inventory procedures administered in good faith satisfied the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure. The trial court found that the police department's procedures mandated the opening of closed containers and the listing of their contents. The discretion afforded the police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. There was no showing that the police chose to impound defendant's van in order to investigate suspected criminal activity.

-- Inventory searches differ from jx to jx.Reading 31, Problem 4, questions 1 and 3

-- (1) Narcotics Given reasonable suspicion Initial detention? Valid?

- Under Hodari D.- Under Mendenhall—probably didn’t feel free to leave

Full search and full arrest—probable cause to search and seize the briefcase?- No probable cause to search and seize the briefcase—unidentifiable lump

does not establish probable cause that there are drugs in the briefcase- Exigent circumstances dangerous to officer safety? No, because

Drugs must be suppressed as evidence—fruit of the poisonous tree-- (2) Handgun

They saw her legally park the car, so they knew she was the driver. Unlawful search and seizure of the handgun—Automobile exception not met

because they did not have probable cause to search the car without a warrant. fruit of the poisonous tree because there is no probable cause

Reading 31, Problem 5, part 1b-- Probable cause for search of car because he fit the description of the robber in the

police bulletin; objectively reasonable actions by police officer-- Thornton case—once beyond citation, officer can perform search except for trunk

upon probable cause (probable cause established by the -- Purse was within passenger compartment -- Automobile exception-- Discuss BOTH search incident to arrest (NY v. Belton) and automobile exception

AND inevitable discovery if there was an inventory policy in this department

4. Administrative Inspections and Regulatory/“Special Needs” SearchesThese cases require a further application of the Camara or Terry balancing test.There are 2 kinds of departures from the traditional probable cause requirement:

-- (1) to require individualized suspicion (reasonable suspicion) less compelling than is needed for the usual arrest or search

-- (2) to require no individualized suspicion whatsoever, but instead to require that the seizure or search be conducted pursuant to some neutral criteria which guard against arbitrary selection of those subjected to such procedures (similar to the inventory searches)

Safety inspections:Camara v. Municipal Court

-- A city ordinance gave city building inspectors the right to enter any building at reasonable times in furtherance of their code enforcement duties. The occupant denied entrance to building inspectors on three separate occasions, each time demanding that they first obtain a warrant. He was prosecuted under another ordinance that made it a crime to refuse to comply with the inspectors' requests. He claimed the warrantless search requested by the building inspectors violated

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his Fourth Amendment rights. The Court agreed and, to the extent that its prior decision in Frankland v. Maryland, permitted warrantless administrative searches, it overruled that decision. The Court held that the administrative search was not peripheral to the occupant's Fourth Amendment interests because a criminal prosecution could and did result from his refusal to submit. The Court held that probable cause would still be required for issuance of a warrant for an administrative search, but the standard was lower than for issuance of a warrant in criminal cases. The standard would be met by a reasonableness showing, in light of the reasonable goals of code enforcement.

NY v. Burger-- The Court upheld a statute that allowed search of auto junkyards w/o a

warrant under the administrative scheme rationale (even though the scheme concerned a social problem—stolen property); police were allowed to make inspections which often uncovered evidence of crime because the searches were based on an administrative scheme with the purpose of deterring crime

-- Remember: Commercial business premises (such as junkyards) have a lesser expectation of privacy than the home

Border Searches:US v. Ramsey—The court upheld a customs inspection of mail entering the US (which could not extend to the reading of correspondences).

As for non-routine border inspections, lower cts have held that “a real suspicion” is needed for a strip search, and a “clear indication” is needed for a body cavity search.

US v. Montoya de Hernandez—when customs agents “reasonably suspect that the traveler is smuggling contraband in her alimentary canal,” she may be detained so long as is necessary to either verify (through an x-ray) or dispel (by poop) the suspicion.

US v. Flores-Montano—reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person do not carry over to vehicles. Thus, the removal and disassembling of a gas tank does not require a reasonable suspicion. However, some searches of property are so destructive as to require a different result.

Vehicle Checkpoints:Ingersoll v. Palmer-- Petitioners, California taxpayers, sought to prohibit the operation of sobriety

checkpoints in CA because they do not meet the standards requiring individualized suspicion of wrongdoing established in In re Tony C. (Cal.3d—the standard pertinent to traditional criminal investigative stops).

-- Court analyzes the original Burlingame checkpoint: The initial stops lasted only 28 seconds and if suspicious, 6.13 minutes for a field sobriety test (reasonable suspicion was needed for the field test—smell of alcohol, open containers, or bloodshot eyes). Drivers were given a warning sign so that they could turn around if necessary. There were lights and cones. The test was reasonably located. The sobriety tests were publicized. The officers were operating with a written set of guidelines on how to perform the checkpoint tests (limited discretion of operation in the field).

-- Temporary seizure? If so, is there a required particularized/individualized reasonable suspicion?

-- The In re Tony C. standard does not apply because the primary purpose of the stop here was not to discover evidence of a crime or to make arrest of drunk drivers but to promote public safety by deterring intoxicated persons from driving on the public streets and highways. Therefore, the applicable standard is that applicable to investigative detentions and inspections conducted as part of a regulatory scheme in furtherance of an administrative purpose.

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-- In People v. Hyde (Cal.3d), the court upheld airport screening searches, applying the administrative search rationale; relying upon the same principles and factors, the concurring minority preferred a more generic balancing test of reasonableness.

-- The Court of Appeals held and the USSC affirmed that the governmental and public interest in keeping drunk drivers off the road outweighs the intrusiveness of the interference with individual liberty and that within certain limitations a sobriety checkpoint may be operated in a manner consistent with the federal and state Constitutions (balancing test).

-- Sobriety checkpoints are permissible if they are not for a criminal purpose but rather for a regulatory scheme/administrative purpose (e.g., deterrence of crime), and if they are correctly operated (limited discretion, limited duration, don’t further investigate without a reasonable suspicion, etc.).

Almeida-Sanchez v. US—In a series of cases dealing with the stopping of vehicles away from the border to see if they were occupied by illegal aliens, the Court held that while roving patrols could stop and search vehicles for illegal aliens only with probable cause, only reasonable suspicion was needed to stop motorists and inquire briefly as to their residential status.

US v. Ortiz—Even at a permanent checkpoint away from the border, search of a vehicle for aliens is not permissible absent probable cause.

US v. Martinez-Fuerte—The brief questioning of vehicle occupants at checkpoints away from the border is permissible without any individualized suspicion whatsoever. Delaware v. Prouse—Absent reasonable suspicion, the police may not stop individual vehicles for the purpose of checking the driver’s license and the registration of the automobile. Michigan Dep’t of State Police v. Sitz—upheld the sobriety checkpoint program where the intrusion upon motorists is slight, the program sufficiently limited officers’ discretion, the program addressed the very serious drunk driving problem, and there was support in the record for the law enforcement judgment that such checkpoints were among the reasonable alternatives available for dealing with the problem.

Search of students:New Jersey v. TLO—School officials need not obtain a warrant before searching a

student who is under their authority. Ordinarily, a search will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the school rules. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. The Court balanced the school child’s legitimate expectations of privacy and the school’s equally legitimate needs to maintain an environment in which learning can take place.

Supervision of parolees and probationers:Griffin v. Wisconsin—a State’s operation of a probation system likewise presents special

needs beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. No warrant was required for search of the probationer’s home, nor was full probable cause.

US v. Knights—probationer’s home searched; warrantless search was reasonable aside from the special needs justification because the probation order clearly expressed the search condition and Knights was aware of it (no reop), probationers will more likely engage in criminal conduct than an ordinary person, and the balance of these considerations required no more than probable cause to search his house

US v. Kincaid—balancing of interests approach rather than special needs approach used to determine that the 4th Am permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed addtl crimes.

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Drug testing:National Treasury Employees Union v. Von Raab—The suspicionless testing of

employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions which require the incumbent to carry a firearm, is reasonable. The court determined that the gvt’s interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation’s borderso f the life of the citizenry outweighed the diminished expectation of privacy of those who seek promotion to these positions.

Skinner v. Railway Labor Executives—upheld blood and urine testing of railroad employees following major train accidents or incidents and the breath and urine testing of railroad employees who violate certain safety rules, even in absence of reasonable suspicion.

Veronia School District 47J v. Acton-- In the mid-to-late 1980’s, there was an increase in drug use and disciplinary

problems in the school district. Athletes were the leaders of the drug culture. Other methods used in the past did not deter drug use. Drug use increases the risk of sports-related injury. Drugs have deleterious effects on motivation, memory, judgment, reaction, coordination, and performance. The district adopted a Student Athlete Drug Policy which authorized random urinalysis drug testing of students who participate in the District’s school athletics programs with the purpose of preventing student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs. The athletes were required to take a drug test at the beginning of the season and at random during the season. Also, a parent consent form was required for the testing. If a student failed a test, he was given another; if he failed both, his parents were notified and he was given the opportunity to participate in a diversionary program.

-- Acton and parents refused to sign the consent form, claiming that his 4th Am rights were violated.

-- Balance of legitimate public interest (reducing school drug use, disciplinary problems, injuries, etc.) outweighs the intrusiveness of the search. Reasonable search—no 4th Am violation. Students have a lesser expectation of privacy than normal adults, and student athletes have an even lesser expectation of privacy.

Board of Education of Independent School District v. Earls—upheld a random testing policy applicable to middle and high school students participating in any extracurricular activity. Reasoning: these kids subject themselves to a lower protection of privacy by participating, and the gvt has a strong interest in fighting the drug epidemic in schools.

Whenever departure from the usual warrant and/or probable cause requirements is claimed to be justified on the basis of some special need, it must be completely removed from the state’s general law enforcement interest.-- City of Indianapolis v. Edmond—City-operated vehicle checkpoints, complete w/

drug dogs, undertaken to interdict unlawful drugs contravened the 4th Am requirement.

-- Illinois v. Lidster—highway checkpoint set up by police to seek information from motorists about a hit and run accident a week earlier the same time of night was valid because it did not fall within the general interest in crime control category of Edmond.

-- Ferguson v. City of Charleston—Task force made up of reps of the Charleston public hospital, police, and other public officials developed a policy for identifying and testing pregnant patients suspected of drug use and then turning the results over to law enforcement agents w/o the knowledge of the mothers. The nonconsensual searches were held unconstitutional if not authorized by a

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valid warrant.

Make a chart ranking the reops (students will go at bottom); include home, cars, etc.

II. LINEUPS, SHOWUPS, AND OTHER PRE-TRIAL IDENTIFICATION PROCEDURES

3 major questions:-- (1) Was the 6th am right to counsel violated in the way that the id procedure was

conducted? Counsel present?

-- (2) Was there a Due Process violation? Looks to the types of procedures used—fundamentally unfair procedure

resulting in a fundamentally unfair trial. E.g., Overly suggestive, etc. General rule: Violation of Due Process if the identification procedure was

so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. US

-- (there can be 1 and/or 2)-- (3) If there was 1 and/or 2 committed in the way that the id procedure was

conducted, is there nevertheless an independent origin for the eyewitness’s testimony (independent of the constitutional violation so that it is admissible at trial)? E.g., Witness made an identification at a trial testimony; memory at trial is

based directly upon the incident rather than the unconstitutional identificationUS v. Wade

-- The employees of a robbed bank identified respondent in a lineup that had been conducted without counsel being present. At trial, the employees pointed to respondent when asked to identify the robber. Respondent was convicted, but the court of appeals reversed his conviction and ordered a new trial, excluding the courtroom identifications. The court of appeals concluded that the lineup violated respondent's Sixth Amendment right to assistance of counsel. The Court remanded the action to the court of appeals to enter a new judgment vacating respondent's conviction, until a hearing could determine whether the in-court identifications had independent origins. The post-indictment lineup was a critical stage of the proceedings, so respondent was entitled to have his attorney present. Based on the record, the Court could not determine whether the courtroom identifications should be excluded. Evidence had to be presented as to whether the in-court identifications were based on observations or the lineup.

-- Wade was a suspected robber, identified at a lineup. No counsel was present. The issue of whether there was an independent origin was never addressed, so the case was remanded.

-- Counsel is required at a lineup, primarily as an observer, to ensure that defense counsel could effectively confront the prosecution’s evidence at trial. If the suspect is subjected to a pretrial identification process in the absence of counsel, the State may not buttress (support) a later courtroom id of the witness by any reference to the previous id. The courtroom id is not admissible at all unless the State can establish by clear and convincing proof that the testimony is not the fruit of the earlier id made in the absence of defendant’s counsel—a heavy and probably impossible burden for the state.

-- This rule applies to any lineup, to any other techniques employed to produce an id, and a fortiori (even more so) to a face-to-face encounter between the witness and the suspect alone, regardless of when the id occurs, in time or place, and whether before or after indictment or information.

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Since the lineup or the taking of exemplars is not protected by the privilege against self-incrimination, some courts hold that the prosecution may comment on the suspect’s refusal to cooperate (the courts are split; treat as potential “yes”). The refusal is considered circumstantial evidence of consciousness of guilt.

Moore v. Illinois—A one-on-one confrontation is highly suggestive and should be protected by an attorney (who could request that the id be postponed).

Trial judges decide in their own discretion whether a defendant should be allowed to sit among spectators or with non-suspects at the counsel table to avoid suggestiveness.

Defense can also request a lineup with other persons on due process grounds if he shows a reasonable basis for believing he may be so charged; not a guaranteed right—determined on a case-by-case basis.

Trial court discretion also controls whether psychological testimony can be given to explain to the jury the frailty and fallibility of eyewitness testimony.

Due Process “Back-up” Test: Stovall v. Deno held that due process protects suspects from confrontations that are so unnecessarily suggestive and conducive to irreparable mistaken identity; such a due process claim is separate from any lack of counsel claim and is evaluated in light of the totality of the circumstances. For photo id procedures, Simmons v. US set the standard—whether the id procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

The court retreats: Kirby and AshKirby v. Illinois

-- Kirby and Bean were arrested for a robbery that had occurred 2 days earlier and were taken to the police station. The victim identified the men as the robbers in the police station. Neither of the men had asked for, or been advised of, counsel. At trial, the victim described his identification of the two men at the police station (rather than describing them as the robbers at trial).

-- A person’s 6th and 14th Am right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.

-- Court is asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station show-up that took place before the defendant had been indicted or otherwise formally charged with any criminal offenses, but refuses to do so.

-- Dissent: The holding in Wade was to safeguard the accused’s constitutional rights to confrontation and the effective assistance of counsel at his trial. Anyhow, a post-arrest confrontation for identification is among those “critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” There was a high danger of mistaken identity in the police station without the precautions exercised in a police lineup.

Moore v. Illinois-- Issue: When are adversary judicial criminal proceedings “initiated”?-- A police officer accompanied the victim to a courtroom where Moore, a rape

suspect, was to appear for his preliminary hearing to determine whether he should be bound over to the grand jury (remain in jail) and to set bail. Petitioner was not represented by counsel at this hearing, nor offered appointed counsel. The victim was not required to be present at this preliminary hearing, but she was brought in by a police officer. The victim identified Moore as her assailant, and at trial, she testified that she had identified Moore as her assailant at the preliminary hearing (no independent origin).

-- USSC rejected the contention that evidence of an identification conducted in the absence of defense counsel must be excluded only if the identification is made after the defendant is indicted because here, the government had

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clearly committed itself to the prosecution of Moore and he was faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.

-- Due process and 6th Am issues occurring in one set of facts: Moore was the only suspect in the courtroom. There was a 6th Am violation

because he was not given counsel. Fundamentally unfair because it was overly suggestive. Due process

violation because the procedure was fundamentally unfair as to result in a fundamentally unfair trial.

US v. Ash-- Shortly before trial, almost 3 yrs after the crime, and long before Ash had been

incarcerated and appointed counsel, the government conducted a photographic display without notifying counsel. The prosecutor showed 5 colored photos to 4 witnesses who previously had hesitantly identified the black-and-white photo of Ash. 3 witnesses selected Ash’s photo, but one was unable to make any selection.

-- USSC held that Ash’s right to counsel guarantee was not violated when his attorney was not afforded the opportunity to be present at the photo display because there was no opportunity for opposing counsel to take advantage of the accused.

-- Selection of the picture of a person other than the accused, or the inability of a witness to make a selection, will be just as useful to the accused as to the prosecution.

-- The defendant is protected by the moral obligations of the prosecution.-- There is no right to counsel at a photographic display for the purposes of

identification.-- The suspect can bring a due process claim if the id procedure was overly

suggestive under Simmons.-- Court is concerned that the right to counsel at a photo display might lead to the

extension of the right to counsel to all pretrial interviews of prospective witnesses.-- Concurrence:

There are substantially fewer possibilities of impermissible suggestion when photos are used as opposed to a lineup, and those unfair influences can be readily reconstructed at trial.

There are few possibilities for unfair suggestiveness, and witnesses can recount at trial if the photos were displayed in a suggestive manner.

-- Dissent: A photographic identification is inferior to a corporeal identification. Subtle suggestiveness may not be recreated at trial. A photo identification procedure is just as critical as a police lineup in

requiring a counsel’s presence to help compensate for the accused’s deficiencies as an observer.

Due process claims must be against government actions.Manson v. Brathwaite

-- Undercover cop, Glover, bought heroin from a dealer in a naturally lit hallway and described him to another cop. The other cop brought a photo of the man he assumed was the dealer to Glover, who positively identified the man in the photo as the dealer.

-- Biggers—In a due process claim, the issue is whether under the totality of the circumstances, the id was reliable even though the confrontation procedure was suggestive. The admission of testimony concerning a suggestive and unnecessary id procedure does not violate due process so long as the id possesses sufficient aspects of reliability.

-- Interests taken into account by the majority:45

(1) Reliability of evidence (2) Deterring police from using unnecessarily suggestive procedures (3) Effect on the administration of justice

-- Manson v. Brathwaite Due Process test weighs: (1) Opportunity to view (2) Degree of attention (3) Accuracy of the description (4) Witness’s level of certainty (5) Time between the crime and the confrontation

-- Considering the factors: Opportunity to view—Glover was standing in a naturally lit hallway for 2-3

minutes with suspect face-to-face. Degree of attention Accuracy of description Witness’ level of certainty Time btwn the crime and confrontation

-- Caljic 2.92 Factors to consider in proving identity by eyewitness testimony (CA version of Manson factors)—no need to memorize The opportunity of the witness to observe the alleged criminal act and the

perpetrator of the act The stress, if any, to which the witness was subjected at the time of the

observation The witness’s ability, following the observation, to provide a description of

the perpetrator of the act The extent to which the defendant either fits or does not fit the description of

the perpetrator previously given by the witness The cross-racial or ethnic nature of the identification The witness’s capacity to make an identification Evidence relating to the witness’s ability to identify other alleged perpetrators

of the criminal act Whether the witness was able to identify the alleged perpetrator in a

photographic or physical lineup The period of time between the alleged criminal act and the witness’s

identification Whether the witness had prior contacts with the alleged perpetrator The extent to which the witness is either certain or uncertain of the

identification Whether the witness’s identification is in fact the product of his/her own

recollection Any other evidence relating to the witness’s ability to make an identification

Detention for Id Procedures in the Absence of Probable CauseDavis v. Mississippi—(see above) A detention for such a purpose might sometimes be

permissible on evidence falling short of the traditional probable cause needed for an arrest.

Hayes v. Florida—A brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, might pass constitutional muster.

Reading 31, problem 5cProblem 6 part 3

III. INTERROGATIONS AND CONFESSIONS

*SEE KROEBER OUTLINE—READING 1746

The Due Process Voluntariness TestAn involuntary admission is obtained in violation of due process if police use overly

coercive or offensive interrogation tactics or if the tactics make the resulting confession untrustworthy.

Miller v. Fenton—The admissibility of a confession turns as much on whether the techniques for extracting the statements are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.

Ashcraft v. Tennessee (1944)—conviction reversed where a confession had been obtained after some 36 hrs of continuous police interrogation, which constituted coercion

The Due Process Clause bars police procedure which violates the basic notions of our accusatorial mode of prosecuting crime and vitiates a conviction based on the fruits of such procedure. The purpose of the Clause is to assure appropriate procedure before liberty is curtailed or life is taken.-- Bars particular interrogation tactics that are “so offensive or so coercive” that it

requires exclusion of any resulting confession. This requires a look at the totality of the circumstances.

Pre-Miranda cases revealing impermissible per se police practices:-- Stripping off D’s clothes and keeping him naked for several hours-- Informing D that state financial aid for her infant kid would be cut off, and her

kids taken from her, if she failed to cooperate with police -- pretending to bring in D’s wife who suffered from arthritis for questioning -- informing D that he would not be able to call his wife or anyone else until he gave

a statement -- removing D from jail to a distant place in order to thwart the efforts of his friends

or relatives to secure his release, or at least to contact him utilization of a state-employed psychiatrist with considerable knowledge of hypnosis who posed as a general practitioner who would provided D with medical relief he needed and succeeded in obtaining a confession by skillful and suggestive questioning

-- utilization of D’s childhood friend, then a fledgling police officer, who, pursuant to his superiors’ instructions, pretended that D’s phone call had gotten his friend in a lot of trouble so that his job was at risk

Miller v. Fenton—The admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the D’s will was in fact overborne.

The McNabb-Mallory Rule: Supervisory Authority Over Federal Criminal Justice versus the 14th Am Due Process (not on exam, but know for bar)-- The rule states that a confession taken in violation of Fed.R.CrimP. 5a, requiring

that an arrestee be taken without unnecessary delay to the nearest available committing officer, is inadmissible even in state court proceedings (federal rule of speedy arraignment). The rule applies even though it exceeds 14th Am due process requirements.

Spano v. NY (1959)—D was indicted for murder. Rather than being arraigned and tried, the indictment was followed by an all-night inquisition by the police without the assistance of counsel

Massiah v. US (1964)-- 2 yrs before Miranda-- After obtaining a lawyer and pleading not guilty, Massiah gave incriminating

statements to his co-defendant in a car which was connected to the police by a radio transmitter. Gvt knew Massiah had a lawyer, so they set up an extra judicial proceeding where they wired up Colson, a governmental agent and Massiah’s friend, who questioned Massiah as if it were an FBI agent questioning a suspect.

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-- The Supreme Court held that petitioner was denied the basic protections of U.S. Const. amend. VI when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately and secretly elicited from him after he had been indicted and in the absence of his counsel. The court found that any secret interrogation of petitioner, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravened the basic dictates of fairness in the conduct of the criminal cause and the fundamental rights of petitioner. Petitioner was as much entitled to aid of counsel during the critical period after arraignment and until the beginning of trial as at the trial itself. Here, petitioner was seriously imposed upon since he did not even know that he was under interrogation by a government agent.

-- After a D is indicted, the initiation of formal judicial proceedings has begun and he is entitled to assistance of counsel. Our system is accusatorial rather than inquisitorial. That is, at the point that the gvt has formally charged an individual with criminal charges in a federal indictment, the defendant is entitled to appoint counsel or assistance of counsel.

-- A defendant is denied the basic protections of the Sixth Amendment when there is used against him at his trial evidence of his own incriminating words, which federal agents have deliberately elicited from him after he has been indicted and in the absence of his counsel. If such a rule is to have any efficacy, it must apply to indirect and surreptitious interrogations as well as to those conducted in the jailhouse.

The right against self-incrimination:Malloy v. Hogan

-- Shotgun wedding of the privilege against self-incrimination to the confession rule.-- The lower court affirmed the dismissal of a petition for a writ of habeas corpus

brought by appellant parents of a 15-year-old boy, who was committed as a juvenile delinquent until he was 21 by a juvenile court. The child was taken into custody after a female neighbor complained of lewd phone calls, while he was still subject to a six months' probation order as a result of his having been in the company of another boy who had stolen a wallet from a lady's purse.

-- On appeal, the Court disagreed with the lower court's conclusion that the child and his parents received due process. The delinquency petition was in general terms, and it was not served on the child or his parents. In addition, the child and his parents were not notified of the child's right to be represented by counsel. The child had been denied the rights of confrontation and cross-examination in the juvenile court hearings because the complaining neighbor was not called as a witness, and the privilege against self-incrimination was not observed because the child's confession was obtained out of the presence of his parents, without counsel, and without advising him of his right to remain silent.

-- Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.

-- Juveniles are owed the same due process as adults.Miranda v. Arizona (1966)

-- Court dealt with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the 5th Am to the Constitution not to be compelled to incriminate himself.

-- The United States Supreme Court reversed the judgment of three cases, and affirmed the fourth. When an individual was taken into custody and subjected to questioning, the 5th Am privilege against self-incrimination was jeopardized. To

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protect the privilege, procedural safeguards were required. -- The prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

-- Dissent: no support in the history of the privilege or in the language of the 5th AmPost-Miranda:

First blow: Impeachment cases of Harris v. NY and Oregon v. HassHarris v. NY—statements preceded by detective warnings, and thus inadmissible to establish the prosecution’s case-in-chief, could nevertheless be used to impeach the defendant’s credibility if he chose to take the stand in his own defense.Oregon v. Hass—Harris applies even when D asserts his rights after being advised them and police nevertheless refuse to honor the D’s request for a lawyer and continue to question the DMichigan v. Mosley—under certain circumstances (which are unclear), if the police cease questioning on the spot, the police may “try again,” and succeed at a later interrogation session. At the very least, the police must promptly terminate the original interrogation, resume questioning after the passage of a significant period of time, and give the suspect a fresh set of warnings at the outset of the second session.Oregon v. Mathiason and California v. Beheler—dealt with the meaning of “custodial” interrogations; even police station questioning designed to produce incriminating statements is not necessarily “custodial interrogation.” In Mathiason, the suspect went down to the station house on his own after an officer had requested that he meet him there at a convenient time and he agreed to do so. In Beheler, the suspect went to the station in the company of the police “voluntarily.” In both cases, the accompanying confessions were admissible without Miranda warnings because there was no police custody.

Brown v. Illinois—giving of the Miranda warnings, alone, does NOT purge the taint of a preceding illegal arrest.

Rhode Island v. Innis—Court gave broad definition of “interrogation”Edwards v. Arizona

-- When a suspect asserts his right to counsel (as opposed to his right to remain silent), the police CANNOT “try again” as in Mosley. Under these circumstances, a suspect cannot be questioned anew “until counsel has been made available to him, unless he himself initiates further communication, exchanges or

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conversations with the police.” -- After he was arrested and read his Miranda rights, petitioner requested an

attorney. The police officers ceased questioning, but detectives from the same police department returned the next day and again interrogated petitioner. Petitioner confessed to the crimes during the second interrogation. The lower courts held that although petitioner had invoked his right to remain silent and his right to counsel, he had waived both rights during the second interrogation after again being informed of his Miranda rights.  

-- The Supreme Court held that - (1) the use of petitioner's confession against him violated his Fifth and

Fourteenth Amendment rights, where petitioner had asserted his right to counsel and his right to remain silent, and the police, without furnishing him with counsel, returned and secured a confession;

- (2) petitioner did not validly waive his right to counsel, where there was no finding that he understood his right to counsel and intelligently and knowingly relinquished it; and

- (3) having requested counsel, petitioner was not subject to further interrogation until counsel had been made available to him, unless petitioner himself initiated further communication with the police.

NY v. Quarles—recognized a public safety exception to the Miranda warnings and thus held admissible both the suspect’s statement, “the gun is over there” and the gun found as a result of the statement.

Oregon v. Elstad—The fact that the police had earlier obtained a statement from D in violation of his Miranda rights (when they questioned him at home) did not bar the admissibility of a subsequent statement (obtained at the police station) when, this time, the police complied with Miranda.-- Both Quarles and Elstad underscored the distinction between actual coercion by

physical violence or threats of violence (pre-Miranda voluntariness test) and inherent or irrebuttably presumed coercion (the basis for the Miranda rules) or statements obtained merely in violation of Miranda’s procedural safeguards or prophylactic rules.

Applying and Explaining Miranda:State v. McKnight—The police cannot exploit a criminal’s ignorance or stupidity. A

Miranda waiver must be voluntary, intelligent, and knowing. However, a man need not have the understanding of a lawyer to waive one. “Intelligent” means that the individual must know of his available options before deciding what he thinks best suits his particular situation.

Duckworth v. Eagan—As for the adequacy of Miranda warnings, the inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda (all 4 warnings).

Colorado v. Spring-- A suspect’s awareness of all the possible subjects/topics of questioning in

advance of interrogation is not relevant in determining whether the suspect voluntarily, knowingly, and intelligently waived his 5 th Am privilege . The Constitution doesn’t require that a criminal suspect know and understand every possible consequence of a waiver of the 5th Am privilege. Nor does the failure to inform a suspect of the potential subjects of interrogation constitute the police trickery and deception condemned in Miranda.

-- The Court held that the Fifth Amendment did not require ATF agents to warn defendant of a possible murder charge before defendant waived his Miranda rights. The Court found that defendant knowingly waived his Miranda rights since he knew what his right were, including the right to discontinue talking at any time. Thus, his waiver of his Miranda rights was valid.

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Beckwith v. US—The “focus” in Miranda concerns questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Special agent of the Internal Revenue Service was not required to give Miranda warnings in an interview with a taxpayer who was not in custody, and that petitioner's statements were thus admissible against him.)

Stansbury v. California—An officer’s evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry.

Questioning “on the street”: Most courts hold that absent special circumstances (such as arresting a suspect at gunpoint or forcibly subduing him), police questioning “on the street,” in a public place or in a person’s home or office is not “custodial.”

Berkemer v. McCarty—“roadside questioning” of a motorist detained pursuant to a traffic stop is quite different from questioning at the stationhouse and thus shouldn’t be considered “custodial interrogation.”

Schneckloth v. Bustamonte—warning requirement need not be imposed on normal consent searches because they occur under informal and unstructured conditions

Orozco v. Tx—Court applied Miranda to a situation where D was questioned in his bedroom by 4 officers at 4am, circumstances that produced a “potentiality for compulsion” equivalent to a police station interrogation.

NY v. Quarles—D in “custody” when questioned in a supermarket minutes after arrested at gunpoint, surrounded by 4 officers, and frisked and handcuffed, but public safety exception applied

NY v. Mesa (F.2d)—hostage case (D locked himself in a motel room and negotiated by phone with the police; held: The officials lacked the psychological advantage over appellee that was present in custodial interrogation as described by the Miranda court. The court held that where an armed suspect barricaded himself away from the police, he was not in custody and, therefore, Miranda warnings were not required as a prerequisite to the admission of his statements into evidence.); is this “custody” under Miranda? Public safety exception probably applies.

Miranda triggers: Custody AND Interrogation (by police); 5th Amendment privilege against self-incrimination; the interrogation must be by police or by an agent of the police to trigger Miranda.

Yarborough v. Alvarado-- Respondent prison inmate was convicted in state court of murder and attempted

robbery but asserted that use of his statements to an officer was improper in the absence of a pre-interrogation advisement of rights. Upon the grant of a writ of certiorari, respondent custodial official appealed the judgment of the United States Court of Appeals for the Ninth Circuit which reversed a denial of habeas corpus relief pursuant to 28 U.S.C.S. § 2254(d)(1).

-- Shortly before reaching the age of majority, the inmate was questioned at a police station, at police request, concerning the murder and the inmate eventually admitted participating in the offenses. The state court found that an advisement of rights was not required since the inmate was not in custody at the time of the questioning, but the lower federal appellate court found that the state court unreasonably applied federal law, within the meaning of § 2254(d)(1), by failing to consider the age and inexperience of the inmate in determining that the interrogation was not custodial.  

-- The United States Supreme Court held that, while it was arguable whether the inmate was in custody at the time of the interrogation, the state court's determination that the inmate was not in custody was based on a proper application of Supreme Court precedent. The general test of custody, for purposes of requiring a pre-interrogation advisement of rights, involved the

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objective circumstances of the interrogation, and the state court's failure to consider the inmate's subjective individual characteristics, such as his age and inexperience, was not an unreasonable application of clearly established federal law. Majority said age is NOT a factor to be taken into consideration. Miranda custodial inquiry is an objective test.

-- A Miranda warning is only required for a formal arrest, or restraint on freedom of movement. Since he was already in inmate, his freedom was not further restricted.

In any exam question – if officer says ‘you’re under arrest’ then it is a lawful arrest for Miranda purposes.  BUT if the officer does not say ‘arrest’ the whether or not it is a lawful arrest is up for debate. If officer handcuffs someone in CA, and places you in police car, it is an arrest, even if the word arrest is not used. KNOW FOR EXAM.

Rhode Island v. Innis -- Respondent was convicted of the kidnapping, robbery, and murder of a taxicab

driver after the trial court denied respondent's motion to suppress the weapon and statements made by respondent to the police about the weapon. The state supreme court set aside respondent's conviction, finding that respondent had been subjected to subtle coercion that was the equivalent of interrogation after respondent invoked his Miranda right to counsel. On appeal, the USSC vacated the judgment of the state supreme court.

-- The court held that the Miranda safeguards came into play whenever a person in custody was subjected to either express questioning or its functional equivalent. The court held that the term "interrogation" under Miranda referred not only to express questioning, but also to any words or actions on the part of the police that the police should know were reasonably likely to elicit an incriminating response from a suspect. The court held that respondent was not interrogated within the meaning of Miranda when the police officers voiced safety concerns about children finding the weapon from the crime and respondent interrupted them to say he would show them where the gun was located. The court held that petitioner had not established that respondent's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.

Arizona v. Mauro -- Defendant was convicted of the child abuse and murder of his son. The state

supreme court reversed his conviction on the grounds that the trial court erroneously admitted a police tape recording of defendant's conversation with his wife which took place after he had requested that an attorney be present before further questioning took place. The state's petition for certiorari was granted, and the Supreme Court reversed.

-- It held that although the officers knew that incriminating statements might be made if defendant spoke with his wife, their decision to allow the conversation involved no coercion or psychological ploy designed to elicit an incriminating response. It thus held that the officers' actions in allowing defendant to speak with his wife and taping the conversation were not the functional equivalent of an interrogation under Miranda that violated defendant's previously expressed wish to not be questioned further without a lawyer present.

-- Here, the wife was NOT acting as an agent of the police, so no interrogation here. Illinois v. Perkins

-- Where a Jail plant is doing the listening, there is no interplay between police interrogation and police custody.  So the Miranda rule doesn’t apply here.

-- “Miranda warnings are not required when the suspect is unaware that his is speaking to a law enforcement officer and gives a voluntary statement.”

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-- Major distinction on Problem 3: Where cellmate questioning on behalf of police makes a big difference BEFORE and AFTER arraignment, you need to pay attention to this.

-- This is tested on EXAM. Pennsylvania v. Muniz

-- What constitutes testimonial evidence? What questions fall w/in the routine booking question exception to Miranda? More on what amounts to custodial interrogation within the meaning of Miranda.

-- Defendant was convicted of driving under the influence of alcohol. Defendant argued that portions of a videotape should have been suppressed because he had not been given his Miranda warnings. The state appellate court agreed and vacated defendant's conviction, holding that when the physical nature of the tests began to yield testimonial and communicative statements, the protection afforded by Miranda was invoked.

-- The Court found that the Miranda requirement afforded protection against self-incrimination to persons under custodial interrogation. The Court distinguished between testimonial and real or physical evidence when invoking the privilege. The Court held that a field sobriety test or taking a blood sample constituted real or physical evidence; whereas requiring defendant to respond to specific questions was testimonial. The Court distinguished questions from defendant while he was informed about the properties of a breathalyzer test from utterances made in response to personal questions from the police officer, such as the date of defendant's sixth birthday.  The Court held that comments made by defendant while submitting to a test should not have been suppressed. The Court agreed with the state court's conclusion that Miranda required suppression of defendant's response to the question regarding the date of his sixth birthday, but did not agree that the entire audio portion of the videotape should have been suppressed. The Court reversed the judgment vacating defendant's conviction, and remanded the case for further proceedings. The answers to the ‘Booking questions’ were allowed in, even though he was not Mirandized, since these answers were not testimonial. 

-- D can be ordered by court to demonstrate their speech pattern, or tenor of their speech, and it is not covered by priv against self incrimination.  EXAM TRAP!

New York v. Quarles (1984)-- Facts : Shortly after midnight, police followed Quarles into a supermarket because

he matched the description of a man who had just raped a woman; the woman had told the police that the rapist had just entered the store and that he was carrying a gun. Quarles turned and ran toward the back of the store upon seeing Officer Kraft enter the store. Kraft caught up with Quarles, ordered him to stop and put his hands over his head, and was shortly thereafter assisted by several other officers. Kraft frisked Quarles and discovered an empty gun holster. Kraft cuffed him and asked where the gun was. Quarles nodded in the direction of some empty cartons and responded, “the gun is over there.” At that time, Quarles was surrounded by four officers whose guns were not drawn because the situation was “under control.” After the gun was found, Quarles was then formally placed under arrest and advised of his Miranda rights, which he waived. In response to questions, Quarles admitted that he owned the gun and had purchased it in Miami.

-- Procedural History : The NY courts suppressed the statement, “the gun is over there,” because it had been obtained in violation of Quarles’s Miranda rights. The other statements were suppressed because they were tainted by the seizure of the gun and the pre-Miranda warning response as to its location. The USSC reversed and created a public safety exception to the requirement of Miranda

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rights. All the statements were found admissible by the USSC.-- Holding : There is a public safety exception to the requirement that Miranda

warnings be given before a suspect’s answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved.

-- Reasoning : Overriding considerations of public safety justify the officer’s failure to provide the warnings before he asked questions devoted to locating the abandoned weapon. An accomplice could have been in the store to assist Quales, and the officers’ safety and the safety of others was more important than denying Quales of the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda. In such spontaneous situations, police officers act out of instinctive and unverifiable motives including their own safety, the safety of others, and the desire to obtain incriminating evidence from the suspect.

-- Concurrence (O’Connor) : The public safety exception unnecessarily blurs the edges of the clear line already established and makes Miranda’s requirements more difficult to understand.

-- Dissent (Marshall): The public was not at risk during the interrogation because there was no accomplice involved nor believed to be involved. The assisting officers were sufficiently confident of their safety to put away their guns. The majority did not deal with the presumption in Miranda that the Self-Incrimination Clause prohibits the government from prosecuting individuals based on statements made in the course of custodial interrogations.

The rescue doctrine: similar to public safety exception, but applies when there is a kidnapped person. Are police allowed to obtain statements in violation of Miranda if the police interrogation is motivated primarily by a desire to save the victim’s life? State courts (including CA) have held that there IS a kidnap rescue exception. One Florida state even held that police threats and physical violence at the scene of an arrest did not infect the later confessions concerning a kidnapping.

Waiver of Miranda rights: A waiver does not have to be “specifically made” after the warnings in order to be a valid

waiver.North Carolina v. Butler—The question is not one of form, but rather whether the D

knowingly and voluntarily waived his Miranda rights. Although mere silence is not enough, that does not mean that the D’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a D has waived his rights. The courts must presume that a D did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. An express waiver is not necessary. A suspect may refuse to sign a waiver but nonetheless indicate that he is willing to talk. After being read his rights from a form, D replied that he understood his rights, but refused to sign the form. He was told that he need neither talk nor sign the form, but that agents would like him to talk to them. He replied, “I will talk to you but I am not signing any form.” He then made incriminating statements. Because D said nothing when advised of his right to counsel, and because the state supreme court read Miranda as requiring a specific waiver of each right, it concluded that he had not waived his right to counsel. The Court rejected the state court’s view that nothing short of an express waiver would satisfy Miranda.

Connecticut v. Barrett—While in custody, suspect was advised of his rights thrice. Each time, he agreed to talk but said he would not make a written confession w/o a lawyer. He confessed orally and the officer recorded the confession. The Court held that the suspect’s expressed desire for counsel before making a written statement did NOT

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serve as an invocation of the right for all purposes (even though he was probably thought his oral statements could not be used against him). Barrett’s limited requests for counsel were accompanied by affirmative announcements of his willingness to speak with the authorities.

Fare v. Michael C.—A juvenile taken into custody on suspicion of murder, requested to have his probation officer present. Police rejected his request but told him that he could have an attorney present and that he didn’t have to talk if he didn’t want to. The juvenile agreed to talk without an attorney or his probation officer. The Court held the statements admissible because the request to see a probation officer was not a per se invocation of Miranda rights—not the equivalent of requesting a lawyer. A Miranda waiver is evaluated on the basis of the totality of the circumstances—considering suspect’s age, experience, background, and intelligence.

“Second level” Miranda safeguards (when rights have been asserted):Michigan v. Mosley-- D arrested in connection with certain robberies. He was given Miranda warnings

by a robbery detective but declined to talk (without requesting a lawyer). Mosley was not further persuaded. He was placed in a cell for 2 hours. A homicide detective came in to question him about a murder (completely removed from the robbery questioning). He confessed to a murder after being given his Miranda rights. The statements were admissible because the police immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. The second questioning was consistent with a reasonable interpretation of the earlier refusal to answer questions about the robberies. The right to cut off questioning was scrupulously honored.

-- From Mosley, 3 factors seem to be minimal requirements for the resumption of questioning once a suspect asserts his right to remain silent: (1) immediately ceasing the interrogation, (2) suspending questioning entirely for a significant period, and (3) giving a fresh set of Miranda warnings at the outset of the second interrogation.

Edwards v. Arizona-- If the individual states that he wants an attorney, the interrogation must

cease until an attorney is present. Once a suspect has invoked his right to counsel, he may not be subjected to further interrogation until counsel has been made available to him unless he himself initiates further communication, exchanges or conversations with the police.

-- Edwards was arrested for burglary, robbery, and murder and taken into the police station. He waived his rights and agreed to talk about the crimes. Some time later he asserted his right to counsel. At this point, questioning ceased and Edwards was taken to jail. The next morning, 2 detectives came to the jail and again informed Edwards of his rights. This time he agreed to talk about the same crimes. He then made incriminating statements which led to his conviction for these crimes. The statements were inadmissible because he was not afforded the right to an attorney.

Arizona v. Roberson-- Extension of Edwards-- Once a suspect effectively asserts his Miranda-Edwards right to counsel, the

police cannot even initiate interrogation about the crimes other than the one for which the suspect has invoked his right to counsel.

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Minnick v. Mississippi-- The prisoner and his friend escaped from a county jail and broke into a mobile

home. Two of the residents of such home were killed. The prisoner was arrested and requested an attorney. The prisoner spoke with his attorney. FBI agents and the local police made persistent attempts to persuade the prisoner to waive his rights. The prisoner resisted, but eventually submitted to interviews without his attorney present. The prisoner was convicted. The prisoner filed a petition for habeas corpus relief alleging that his statements were taken in violation of his right to counsel under the Fifth Amendment.

-- On appeal, the Court found that that the prisoner's Fifth Amendment protection was not terminated or suspended by consultation with counsel. When counsel was requested, the interrogation of the prisoner had to cease. Officials could not reinitiate interrogation without the presence of the prisoner's attorney.

-- Tricky: When police come back and reinitiate a second time (after an Edwards invocation) then the waiving of Miranda on second statement is invalid, since police had no right to question him on second visit without his attorney.

US v. Green (D.C appellate case—Green died before it could go to USSC)-- Defendant was arrested on a drug charge and elected not to answer questions

without counsel present. An attorney was appointed and defendant was held on bond until the case was dismissed, and then he was remanded to the custody of juvenile authorities on another matter. While incarcerated there, defendant was charged with murder and after being advised of his rights, defendant chose to waive them and made a videotaped confession to the murder. Following his indictment for murder, defendant filed a motion to suppress his confession and the superior court granted the motion. The government appealed and the court affirmed, holding that so long as defendant remained in custody, the fact that the police did not reinitiate interrogation until five months after he invoked his right to counsel was not adequate reason to justify a departure from the legal doctrine of Edwards. The court found that defendant's guilty plea in the drug case, consistent as it was with his election to communicate with police only through counsel, could not be the pivotal break in events demanded by Edwards before his waiver could be regarded as an initial election by defendant to deal with police on his own.

-- Confession suppressed. Look at period of time between Edwards invocation and the attenuation factors.

Oregon v. Bradshaw-- What constitutes initiating further with the police? -- Defendant, while in police custody under investigation in a traffic fatality,

asserted both his right to silence and counsel. Subsequently, defendant asked a police officer, "well, what is going to happen to me now?" Officer responded that he didn’t have to talk unless he decided to do so as a matter of his own free will. Bradshaw said that he understood. The officer reinitiated his own theory of the crime and how Bradshaw had caused Reynolds’ death and then suggested that Bradshaw take a lie detector test to “clean up the matter.” Bradshaw agreed to take a lie detector test and confessed after another set of Miranda rights the next morning. The Court held that the inquiry was an initiation and defendant waived his Fifth Amendment rights. Although bare inquiries relating to the routine incidents of the custodial relationship were not to be held as initiating a conversation, in the instant case, defendant's inquiry could have been reasonably understood by the officer as relating to the investigation. Further, the officer immediately reminded defendant that defendant did not have to speak to him, supporting the conclusion that the officer understood the inquiry as one relating to

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the investigation. Thus, because there was no violation of defendant's right to counsel and silence and the statements made by defendant were voluntary and resulted from a knowing waiver of his right to remain silent, the reversal of defendant's conviction was in error.

-- Second issue: Was there a valid waiver of Bradshaw’s rights—i.e., was there a knowing and intelligent waiver under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened dialogue with the authorities? Yes, there was a valid waiver.

Davis v. US-- How direct, assertive, and unambiguous must a suspect be in order to invoke the

right to counsel? -- Davis initially waived his Miranda rights, then suggested at least twice, not very

affirmatively, “maybe I should talk to a lawyer.” He made conflicting statements as to whether or not he wanted a lawyer.

-- To invoke the Edwards rule, a suspect must clearly and unambiguously request a lawyer. It must be sufficiently clear such that a reasonable police officer would understand that it was a definite request for a lawyer.

Michigan v. Jackson-- In two unrelated murder cases, respondents were separately arraigned and at that

time each requested appointment of counsel. While in police custody, and before respondents were able to consult with counsel, respondents were interrogated after each was advised of his Miranda rights. During the interrogations, respondents confessed to their crimes, and their confessions were admitted into evidence at their respective trials.

-- Ultimately, the Supreme Court of Michigan reversed respondents' convictions on grounds that respondents' confessions were obtained in violation of their rights to counsel, in violation of the 5th Am. On appeal, the USSC Court affirmed, holding that respondents' confessions, obtained from a police-initiated custodial interrogation, after respondents requested appointment of counsel at their arraignments but before respondents consulted with counsel, violated respondents' right to counsel under the 5th Am, and that under such circumstances, any waiver of the right to counsel for the police interrogation was invalid.

McNeil v. Wisconsin-- Involves crime he has been charged with (robbery) and is being arraigned for, and

there is a murder, attempted murder, and armed burglary for which he has not yet been arraigned. At arraignment for robbery, D had an attorney present. After this initial arraignment, police questioned him multiple times pursuant to their investigation for the murder. D eventually admitted his involvement with the crimes and signed statements. Thereafter, D was convicted and sentenced for the other crimes. The Court held that by having his attorney present, D invoked his 6th Am right to counsel for the first crime, which did not imply an Edwards invocation. The statements were admissible.

-- An Edwards invocation can take place anywhere, and it is all-encompassing (unlike the 6th Am right to counsel), i.e., if there is an Edwards invocation, it covers questioning regarding any of several crimes.

Most lower courts have held that suspect cannot anticipatorily invoke Miranda-Edwards rights unless interrogation is imminent.

Moran v. Burbine-- Respondent confessed to and was convicted of the murder of a young woman.

Respondent later challenged his conviction, 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, but prior to

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arraignment. D asserts invalid waiver of 5th Am right to counsel.-- On review, 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. The Court further found that his Sixth Amendment right to counsel had not attached when respondent confessed.

The Miranda rights are the defendants to waive. The lawyer cannot assert or waive the Miranda rights.

Oregon v. Elstad-- Defendant was arrested and convicted of first-degree burglary. The court of

appeals reversed the conviction after suppressing defendant's confessions for lack of a valid waiver of defendant's Fifth Amendment rights. On review, the Court held that the defendant's statements, made in his own living room and in the presence of his mother before being taken to the police station, were not the subject of police coercion. The Court also held that a suspect who had once responded to unwarned yet noncoercive questioning was not thereby disabled from waiving his rights and confessing after he had been given the Miranda warnings. The Court finally held that defendant's waiver of his Fifth Amendment rights after being arrested was done voluntarily and with full understanding of his rights. The Court therefore reversed the holding of the court of appeals.

-- Miranda violation does NOT cause second Mirandized interrogation to be fruit of poisonous tree.

US v. Patane-- Respondent was indicted for possession of a firearm by a convicted felon.

Respondent apparently violated a restraining order and officers going to his home to investigate the matter were told that respondent, a convicted felon, illegally possessed a pistol. They arrested respondent but were interrupted by respondent who said he knew his rights when they attempted to advise him of his Miranda rights. An officer then asked about the gun and respondent said “the glock is in my bedroom on a shelf.”

-- The Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context (voluntary statements). And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn.

-- If you see Elstad or Patane fact pattern on the exam, then look at the second statement and it is NOT fruit of poisonous tree. A violation of Miranda rule (alone) does not trigger fruit of poisonous tree rule, does not make any down-line physical evidence inadmissible.

-- If only Miranda rights are violated, then a statement is taken in which he reveals physical evidence exists (e.g., he tells the cops where it is), that evidence is admissible.

-- Reinforces Oregon v. ElstadMissouri v. Seibert-- Various police depts. around the country had developed deliberate strategy

seeking to circumvent the Miranda protections by starting questioning without Miranda to get incriminating admissions then stopping the question, Mirandizing,

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then getting the suspect to repeat the admission (mid-stream advisement).-- After defendant's bedridden son's death, a mentally ill teenager died during a

scheme to conceal defendant's neglect of the son. Employing a procedure called "question-first" interrogation, police arrested defendant for the death of the teenager but refrained from giving her Miranda warnings. Twenty minutes after eliciting a confession, police Mirandized defendant and requestioned her. The trial court suppressed the prewarning statement but admitted the postwarning recitation. The Missouri Supreme Court found that, because the interrogation was nearly continuous, the second statement, clearly the product of the invalid first statement, also should have been suppressed.

-- The United States Supreme Court held that the question-first tactic effectively threatened to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted. Because the facts did not reasonably support a conclusion that the warnings given could have served their purpose, the postwarning statements also were inadmissible. Strategists dedicated to draining the substance out of Miranda could not accomplish by training what the Court had previously held Congress could not do by statute.

Dickerson-- Petitioner was indicted for bank robbery, conspiracy to commit bank robbery, and

using a firearm in the course of committing a crime of violence. Before trial, petitioner moved to suppress a statement he had made at a Federal Bureau of Investigation field office, on the grounds that he had not received "Miranda warnings" before being interrogated. The district court granted his motion to suppress. The court of appeals reversed the suppression order, holding that 18 U.S.C.S. § 3501, which made admissibility turn solely on whether the statement was made voluntarily, had been satisfied. On appeal, the court reversed, finding that Miranda was a constitutional decision of the court, and therefore could not be in effect overruled by an Act of Congress. Further, following the principles of stare decisis, the court declined to overrule Miranda itself. The court held that Miranda and its progeny governed the admissibility of statements made during custodial interrogation in both state and federal courts.

-- Judgment reversed; Miranda announced a constitutional rule that Congress could not supersede legislatively, and following the rule of stare decisis, the court declined to overrule Miranda itself.

problem 3, part 1—analyze as prosecutor-- use rules on page 1 of outline; sample answer:

PROBLEM 3Part 1

Deft’s jailhouse statements to SnitchI. WERE DEFT’S STATEMENTS INVOLUNTARY AND

THUS INADMISSIBLE UNDER THE DUE PROCESS CLAUSE?Under the Fifth Amendment to the U.S. Constitution, as incorporated

onto the states via the Fourteenth Amendment, a defendant’s statements willbe excluded if, under the totality of the circumstances, the court finds thatpolice conduct resulted in an “overbearing of his will.” Thus if the police subjected Deft to coercion, force or threats or promised him leniency or thenon-filing of charges, Deft might move to suppress his statements becausethey resulted from an overbearing of his will.

Merely promising something does not render a statement involuntary; thepromise must be a sufficient inducement to be the motivating cause of thestatement.

Here, although the police arguably used Snitch as a subterfuge to trick Deft into making his statement (and they ignored his assertion of the Mirandaright to remain silent), Deft made his statements voluntarily to Snitch. He wasneither threatened nor coerced, nor were any promises made to him.

The relative minor trickery which was used here does not rise to a sufficient level to render Deft’s

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statements involuntary under the Fifth and FourteenthAmendment case law; Miller v. Fenton, Mincey v. Arizona, Arizona v.Fulminante.

II. ARE DEFT’S STATEMENTS EXCLUDABLE ON MIRANDAAND FIFTH AMENDMENT SELF-INCRIMINATION GROUNDS?

The Miranda rule guantees that where a suspect is (1) in custody, and (2) subjected to police interrogation, he must first be advised of his rights, and a knowing, intelligent and voluntary waiver taken, before he is questioned.Here, when first advised of his rights, Deft stated “I do not want to talk to you.”

The central issue here is whether Snitch’s questioning of Deft is “policeinterrogation” for purposes of the Miranda rule. When police placed Deft in the cell with Snitch, they knew Snitch was an informant, and would likely relay any statements made by Deft. Deft’s Fifth Amendment rights, however, were likely not violated by this action, because Deft’s statements to Snitch were not in response to police interrogation. This situation has none of the compulsive atmosphere Miranda was designed to prevent. Deft spoke to Snitch voluntarily, and believing he was speaking merely to a fellow inmate.

There was no “interplay” between custody and police interrogation, underIllinois v. Perkins. The fact that the police knew Snitch was an informant, and placed Deft into that cell after he invoked his right to remain silent, doesn’t resultin any violation of Miranda.

Deft’s statement was voluntary and not the result of police interrogation –therefore it is admissible against him at trial.

III. WERE DEFT’S STATEMENTS TAKEN IN VIOLATIONOF THE SIXTH AMENDMENT RIGHT TO COUSEL?

The Sixth Amendment guarantees defendants the right to counsel in alladversarial criminal proceedings. Thus after a defendant is charged, the police may not question him outside the presence of his counsel; Massiah. Howeverthe Sixth Amendment right to counsel is offense-specific (McNeil v. Wisconsin),so that while the police may not question the defendant as to the crime for whichhe is charged, they may question him about other crimes not yet charged againsthim.

At the time Snitch engaged him in conversation, Deft had only been charged with assault – not drug possession. Since Deft was not yet charged with drug possession, he had no Sixth Amendment protection on that matter. It appears Snitch did not question Deft about the crime with which he was charged – assault.

If Snitch did ask Deft questions about the assault charge, the issue is whether the police, by placing Deft in the same cell, set up a situation designed to “deliberately elicit incriminating statements” from Deft, under United States v. Henry. There do not appear to be any inducements to Snitch such as a payment, or an agreement to reduce his charges or sentence.

Since there is no right to counsel violation here, Deft’s statements are admissible at trial.Conclusion:

Deft’s motion to exclude his statements will be denied.

The Due Process—Voluntariness Test Revisited-- Important when suspects not in custody are questioned by the police, when

suspects in a custody-like situation are questioned/threatened, or when the prosecution seeks to use a confession to impeach a D’s’s testimony at trial or to use the “fruits” of the confession (e.g., the murder weapon) but not the confession itself.

-- Although statements obtained in violation of Miranda may be used for impeachment purposes, “coerced” or “involuntary” statements may not. The Court will usually permit the use of evidence derived from a Miranda violation but exclude the “fruits” of an “involuntary” confession.

Miller v. Fenton (3rd Circuit)-- What kinds of trickery or deception, if any, may the police employ after a suspect

has waived his rights?-- Miller was interrogated for 45 minutes at his job prior to receiving his Miranda

warnings. After waiving his Miranda rights, Miller was interrogated at the police dept. for less than an hour regarding a brutal murder. Detective Boyce’s theme during the interrogation was that he wanted to help Miller, he was sympathetic, etc. He told Miller that he was not responsible for anything he might have done,

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and that he deserved to be helped, “you are not responsible,” “you are not a criminal,” etc. He told Miller that the victim was still alive although she had died.

-- Excessive friendliness can be deceptive, but the “good guy” approach is a permissible interrogation tactic.

-- Miller was a mature 33 yr old adult with some high school education, and he had served a jail sentence, so he knew of the consequences. Miller’s confession may have been made in the hope of leniency, but that does not mean that it was made in response to a promise of leniency. Bram v. US: To be voluntary, a confession must not have been “extracted by

any sort of threats or violence, nor obtained by any direct or implied promises, however slight.” However, this rule is not a per se proscription against promises made during interrogation.

-- Police trickery is merely one factor to be weighed in determining whether a confession was voluntary.

-- Psychological ploys may play a part in the suspect’s decision to confess, but as long as that decision is a product of the suspect’s own balancing of competing considerations, the confession is voluntary.

-- Statements must not be so coercive or manipulative that they deprive the suspect of his ability to make an unconstrained autonomous decision to confess. Subjective characteristics considered: age, education, background, etc.

-- The test for voluntariness is not a but-for test, but a question of whether the confession was a product of free choice.

-- Held: Under the totality of the circumstances, the confession was voluntary.-- Dissent: Under the rule in Bram v. US, the confession should’ve been suppressed-- Merely promising something does not necessarily render a statement

involuntarily. The promise by the police must be a sufficient inducement to render the confession dependent upon the promise.

-- Focus on: overbearing of the suspect’s will, coercion, and promises of leniency or benefits (see kroeber’s outline)

-- There is a line drawn between expressions of sympathy and implied promises of leniency.

US v. LeBrun (8th Cir)-- After 33 minutes of questioning, D confessed to naval investigators that some 33

yrs earlier, when he had been in the US Navy, he had killed his superior officer, Muns, after Muns caught him robbing the safe in the ship’s disbursing office. On the day he confessed, he agreed to accompany naval agents to a highway patrol office where he was questioned. After they arrived, LeBrun was told he was not under arrest and that he was free to leave at any time. He did not believe he was in custody and felt free to leave. He was never Mirandized.

-- Hadn’t been arrested, wasn’t in custody and didn’t feel like he was, not Mirandized. Clear promise: “If the killing was spontaneous, you will not be prosecuted.”

-- Confession NOT suppressed because the court, focusing on whether or not his will was overborne and whether the authorities impaired his capacity for self-determination. It was not shown that the authorities’ representations were the but-for cause of a confession.

-- Court focused on whether his will was overborne, impaired capacity for self- determination, duration, subjective characteristics.

Impeachment:Only due process violations cannot be used to impeach.Michigan v. Harvey

-- Statements obtained in violation of the rule in Jackson, in violation of the 6th 61

Am, may still be used to impeach the defendant’s false or inconsistent testimony.

-- Jackson basically held that the 6th Am right to counsel at a post-arraignment interrogation requires at least as much protection as the 5th Am right to counsel—it basically superimposed the 5th Am Edwards analysis onto the 6th Am, holding that the Edwards protections apply when a suspect charged with a crime requests counsel outside the context of interrogation because suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interrogations)

Doyle v. Ohio-- After being arrested for selling pot to informant, Ds were given the Miranda

warnings and chose to remain silent. At trial, each D claimed he had been framed by narcotics agents. The prosecution asked each D why he had not told this story to the arresting officer.

-- Such use of a D’s post-arrest, post Mirandizing silence is impermissible, even for impeachment purposes because it would be fundamentally unfair, given the fact that the Miranda warnings contain the assurance that silence will carry no penalty.

Anderson v. Charles—Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a D who voluntarily speaks after being Mirandized has not been induced to remain silent.

Jenkins v. Anderson—At his murder trial, D claimed self-defense. The prosecutor was allowed to question him about the fact that he had not surrendered to the authorities until 2 wks after the killing (his pre-arrest silence). The failure to speak was before he was taken into custody and Mirandized. Pre-arrest silence can be used to impeach a D under these circumstances.

Fletcher v. Weir—In the absence of the sort of affirmative assurances embodied in the Miranda warnings, a state may permit cross-examination about post-arrest silence when a D chooses to take the stand. An arrest, by itself, is not governmental action which implicitly induces a D’s to remain silent.

Arizona v. Fulminante-- Fulminante was in prison for possession of firearms, unrelated to the rape-murder

of a child. Fulminante had been threatened by other inmates, so he confessed to the murder to an undercover FBI agent in prison in exchange for a promise of protection from other inmates.

-- Fulminante claimed confession was the fruit of a poisonous tree.-- Court weighed totality of circumstances-- If there had been erroneous admission of coerced statements of trial, the

appellate court may use the harmless-error rule to uphold a conviction rather than making an automatic reversal if it is proved beyond a reasonable doubt that the erroneous admission of tainted evidence was made in harmless error. If there was substantial other untainted evidence, all of the other evidence is looked at (other than the inadmissible evidence) to determine whether a reasonable trier of fact could convict—if a reasonable trier of fact could have convicted upon those facts, there will not be a reversal.

-- The Court held that the confession was coerced and that the state failed to meet its burden of establishing, beyond a reasonable doubt, that the admission of the confession was harmless error. There was a credible threat of physical violence to defendant unless he confessed. Admission of a coerced confession did not automatically require reversal of a conviction but was subject to harmless error analysis because it involved a trial error that could be assessed in the context of other evidence. Admission of defendant's

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confession was not harmless error because it was unlikely that he would have been prosecuted at all absent the confession, the admission of the confession led to the admission of other evidence prejudicial to defendant, and the confession influenced the sentencing phase of the trial.

Issues:

White, Marshall, Blackmun, Stevens

Rehnquist, O’Connor, Souter

Scalia Kennedy

(1) Was 1st confession coerced; was Fulminante’s will overborne? Yes (5 justice majority)

Yes No Yes no

(2) Is 14th Am DP error (admission of an involuntary confession) subject to harmless error rule? Yes (5 justice majority)

No Yes (5 justice majority)

yes Yes

(3) Was admission of this confession harmless on the facts of this case? No (4 justice plurarlity)

no yes yes no

Colorado v. Connelly-- Connelly, mentally ill, flew to Denver, approached an officer and told him that he

had killed someone, and wanted to talk about it. He confessed to killing a girl 9 months earlier. Connelly suffered from command auditory hallucination (schizophrenia), so he was not convicted because he was not able to stand trial. This case concerns whether the confession was admissible.

-- Confession must be caused by police conduct. The statement was entirely made by the defendant despite his recognized psychiatric problem.

-- Police activity is a requirement of a due process violation.Brewer v. Williams

-- 6th Am right to counsel-- Respondent was arrested for the abduction of a missing girl. His attorney advised

him that police officers would be transporting him to another city, that the officers would not interrogate him, and that he should not talk to the officers until consulting with the attorney. After respondent's arraignment, another attorney similarly advised respondent. The officers gave respondent Miranda warnings.

-- During the trip, respondent expressed no willingness to be interrogated. In the car, one officer discussed how expected snow might make recovery of the body and a Christian burial impossible, and that respondent was the only one who knew where the body was. Respondent eventually led the officers to the body. The Court held that respondent was entitled to a new trial because he was deprived of the Sixth Amendment right to assistance of counsel, as judicial proceedings had been initiated against him before the start of the car ride, and the officer deliberately set out to elicit information from him when he was entitled to the assistance of counsel. Respondent did not waive his right to counsel because he consistently relied upon the advice of counsel in dealing with the authorities.

-- Williams was refused of his 6th Am right to counsel, therefore the statement was illegally taken and should not have been admitted to trial.

-- What about the evidence—the body? Inevitable discovery might follow.Patterson v. Illinois

-- After being indicted for murder, petitioner voluntarily spoke with authorities regarding his role in the crime. Prior to receiving his statements, the authorities read petitioner his Miranda warnings and had petitioner initial each one separately. At trial, the prosecution introduced petitioner's inculpatory statements

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as evidence, and petitioner was convicted of murder. On appeal, petitioner argued that he had not knowingly and intelligently waived his U.S. Const. amend. VI rights. He contended that the Miranda warnings, which were adequate for protecting his 5th Am rights, were not adequate for protecting his 6th Am rights. The Court disagreed, finding that an accused who was admonished with Miranda warnings had been sufficiently apprised of the nature of his 6th Am rights, and of the consequences of abandoning those rights, so that his waiver on that basis would be considered a knowing and intelligent one. The Court stated that it seemed self-evident that one who was told that he had such rights to counsel was in a curious posture to later complain that his waiver of those rights was unknowing.

-- Patterson had been indicted but had not requested counsel. His 6th Am rights had attached, but he had not yet invoked them.

-- Waiver of 5th Am right to counsel (Miranda right) demonstrated. Patterson here had been indicted, but he had not requested that counsel be appointed yet. The 6th Am right to counsel attached to him, but he had not yet invoked it.

-- His statements were admissible because his Mirada waiver also satisfied a 6th am right to counsel waiver.

-- An accused who is given Miranda warnings post-indictment has been sufficiently apprised of the nature of the 6th Am rights, and a valid waiver of Miranda rights implies a valid waiver of the 6th Am right to counsel.

-- The key inquiry in determining if there has been a valid 6th Am waiver is whether the accused, who waived his 6th Am rights during post-indictment questioning, was made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel.

-- Distinguish from Michigan v. Jackson where Ds requested counsel at arraignment but were later questioned w/o counsel present. In Jackson, the statements were inadmissible even after being Mirandized.

Henry-- The 6th Am right to counsel is violated when an undisclosed to the suspect,

paid government informant is placed in the D’s cell, after D has been indicted, and deliberately elicits statements from the D regarding the crime for which the D was indicted.

Kuhlman v. Wilson-- It is not a violation merely to place an informant in a cell with D—the

informant must take some action, beyond mere listening, designed deliberately to elicit incriminating remarks.

-- Cellmate informant was told to keep quiet and to keep his ears open. Defendant Wilson told informant the same story that he had told police—that he was innocent. Wilson’s brother visited and told him that his family was disappointed. Wilson then confessed to informant.

-- No deliberate elicitation by cellmate or questioning, whereas in Henry there had been. No questioning by undercover informant. Statements admissible.

Maine v. Moulton-- The 6th Am right to counsel is violated when police arrange to record

conversations between an indicted D and his co-defendant. -- Cops wired co-D and recorded conversation in a car between co-D and D

unbeknownst to D.-- If the gvt obtains incriminating statements from a D after her right to counsel has

attached, but the gvt does so for legitimate reasons unrelated to the gathering of evidence concerning charges to which the right to counsel has attached (e.g., to investigate a report that D plans to harm a witness), the statements are NOT

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admissible at the trial of the crimes for which formal charges had been already filed.

Illinois v. Perkins-- The 6th Am is offense specific. Even though a D’s 6th Am right to counsel has

attached regarding one charge, he may be questioned w/o counsel concerning an unrelated charge for which he has not been indicted.

-- D was in jail on a battery charge. Because police suspected him of an unrelated murder, they placed an undercover officer in D’s cell. The officer elicited damaging confessions from D regarding the murder. The interrogation didn’t violate the 6th Am since D had not yet been charged w/ the murder. Neither did the interrogation violate D’s 5th Am right to counsel under Miranda because there was no relation between police custody and interrogation.

Reading 31, Problem 4--

Reading 30, 3-hour Performance Test A-- I. Miranda-Edwards violation—Flinders was requesting a lawyer, and Quiggs

kept questioning. IRAC State Edwards rule State scope of exclusionary rule – deliberate bad faith police misconduct

requires deterrence to the utmost degree State facts and analyze—mention every single time that a lawyer was

requested. conclude

-- II. 4th Am violation for search and seizure mobile vehicle or house/hotel room? Treat as house/hotel room because he is

renting a sleeping compartment. Not a mobile vehicle because he doesn’t have the power to take off.

warrantless entry of residential-type premises requires probable cause and a warrant; no warrant required if there is exigency, consent, public emergency, etc. Police said they had consent, but Flinders said police demanded, “This is the police. Let us in!” This is not consent because he didn’t feel like he had a choice and no reasonable person would’ve felt like he had a choice.- 4am

-- III. Voluntariness/DP issue Will overborne? Get around Janice—

-- Look at answerQuestion 6, parts 2 and 3 (handout)

-- Part 2 6th am violation? Lineup was pre-arraignment, therefore no 6th Am right to

counsel. Due process violation—Stovall-smith test: fundamentally unfair? No dp

violation. List factors in Stovall.-- Part 3

Admission not admissible. After arraignment, . . . did not initiate (patterson)

IV. SIXTH AMENDMENT RIGHT TO COUNSEL

SIXTH AMENDMENT RIGHT TO COUNSELSummary (by Kroeber)

I. When does the defendant have a right to

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counsel under the Sixth Amendment?

Amendment VI: “In all criminal prosecutions, the accused shall . . . . have the Assistance of Counsel for his defence.”

Two general rules:1. A person has a Sixth Amendment right to counsel at all “critical stages” of the prosecution.

Critical stages include: Arraignment in capital cases; preliminary hearings (adversary evidentiary hearings to determine if there is probable cause/ reasonable suspicion to bind over for trial – witnesses are called); all felony trials (Gideon);any jailable offense (i.e., misdemeanors) in which imprisonment (i.e., jail or prison time) is imposed (Argersinger) NOTE this includessuspended jail sentences (Alabama v. Shelton);

post- indictment lineups (Wade);first appeal as a matter of right (Douglas);post-indictment statements to a police agentcell mate where the cell mate is “deliberatelyeliciting” incriminating information;

These are not critical stages of the prosecution:taking of blood samples;taking handwriting or voice samples;pre-indictment lineups (Kirby);photo IDs (even after defendant is charged andhas counsel) (Ash);discretionary appeals (Ross v. Moffitt)alley confrontations for identification, in thefield soon after the crime;

2. The Sixth Amendment right to counsel attaches when a defendant is charged, or at the commencement of adversary judicial proceedings (arraignment), whichever comesfirst

Where the suspect is the “target” of a criminal investigation, Sixth Amendment protections do not yet apply;

Where he is the “focus” of a criminal investigation, but not yet charged, the protections do not yet apply (seeGouveia)

II. There are four types of Sixth Amendment right to counsel violations at trial

1. Deprivation of counsel throughnot appointing counsel, when it is required;(Gideon, Argersinger, Alabama v. Shelton)Standard of review: automatic reversal

2. Denial of the right to self-represent(Faretta request)Standard of review: automatic reversal

3. Ineffective assistance of counselStrickland error

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Appellant must show both prongs of the testare satisfied, to obtain a reversal:

A. Performance prongB. Prejudice prong

4. Conflicts of interest/ Multiple representation the “adverse effect” test

1. did an actual conflict of interest2. adversely affect the attorney’s performance?

US Constitution, 6 th Am. -- In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Powell v. Alabama-- First significant opinion by the USSC concerning the right to counsel-- Facts/Procedure: In the 1930’s, 6 black youths were accused of raping 2 white

women on a train after a fight with several white men. All defendants entered a plea of not guilty upon arraignment and were not appointed specific counsel but were appointed “all members of the bar” for purposes of arraignment only. The boys were closely guarded by militia and could not contact their friends and families in other states. The boys were ignorant and illiterate. Until the morning of the trial no lawyer had been named or definitely designated to represent the defendants. The boys were found guilty and sentenced to death. On appeal, it was found that their being denied of the right to counsel infringed the due process clause of the 14th Am, considering the facts of the case.

-- Issue: Whether the Ds were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the 14th Am.

-- The right to counsel at trial of a person charged with a crime is denied where upon arraignment they were not asked whether they had or were able to employ counsel, or wished to have counsel appointed, or whether they had friends or relative who might assist in that regard, and until the morning of the trial no lawyer had been designated to represent them.

-- The right of one charged with a crime to be represented by counsel includes a fair opportunity to secure counsel of his own choice.

-- The right to counsel at trial includes the right to counsel in preparation for trial.

-- Failure to give reasonable time and opportunity to secure counsel prior to trial, to ignorant and illiterate youths, away from their families and friends, charged with a crime punishable by death, infringes the due process clause of the 14th Am.

-- The right to a hearing, as a basic element of due process, includes the right to aid of counsel.

-- In a capital case, due process is denied when the court does not appoint counsel to a defendant who is unable to employ counsel and is incapable of adequately making his own defense due to ignorance, feeble-mindedness, illiteracy, or the like. The court did not hold whether due process would be denied in other criminal

prosecutions, or under other circumstances.

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-- A specific attorney must be appointed, not “all members of the bar.”Federal and state indigency standards are confusing and inconsistent: cts utilize various

criteria including whether the accused is working and has money to hire a lawyer or the accused’s assets, debts, employment, ability to post bail, and responsibility for dependents.

Powell was a state case. 6 yrs later in Johnson v. Zerbst (1938), the Court held that the 6th Am guaranteed indigent federal defendants (at least all felony Ds) a right to appointed counsel where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived: “The 6th Am withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. 25 yrs later, the Court concluded that the Constitution guaranteed state Ds the same unqualified right.

Betts v. Brady (1942)-- Indigent petitioner was indicted for robbery. His request for counsel was denied

because local practice permitted appointment only in rape and murder prosecutions. Petitioner then pled not guilty and elected to be tried without a jury. At the trial he chose not to take the stand but had an alibi. He was convicted.

-- On appeal, USSC found his due process was not violated because he was not helpless, but a 43 yr-old man of ordinary intelligence, had the ability to take care of his own interests on the trial of the narrow issue, he was familiar with the criminal justice system, and it was a non-jury trial.

-- Issue: Does the concept of due process incorporated in the14th Am require that states must appoint counsel in any trial for any offense? NO. (overturned in Gideon below)

-- In the great majority of the states, it was the considered judgment of the people, their reps, and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. Considering the totality of the circumstances, no appointed counsel was required.

-- Dissent: The right to counsel in a criminal proceeding is “fundamental” . . . A practice cannot be reconciled with “common and fundamental ideas of fairness and right” which subjects innocent men to increased dangers of conviction merely because of their poverty.” Powell v. Alabama. Whether a man is innocent cannot be determined from a trial in which as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant’s case was adequately presented. Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the “universal sense of justice” throughout this country.

In Butte v. Illinois (1948), the Court suggested that there was a “flat” requirement of counsel in capital cases. In Hamilton v. Alabama (1962), it held that denial of counsel at arraignment in a capital case violates due process.

Denying a D the assistance of his own lawyer on any issue in the trial of any case is a per se violation of fundamental fairness and DP.

Gideon v. Wainwright-- Petitioner was charged with a non-capital felony in Florida state ct—breaking and

entering with the intent to commit a misdemeanor. Appearing at court without funds or a lawyer, he asked the ct to appoint counsel for him, but he was denied because it was not a capital offense. At trial, Gideon was convicted and sentenced.

-- The court overturned Betts and held that the 6th Am right to counsel is obligatory upon the States by the 14th Am. in all felony cases in all state courts.

-- This provision of the Bill of Rights is “fundamental and essential to a fair trial.”68

-- Remanded and he was acquitted with the assistance of a lawyer.Argersinger v. Hamlin

-- USSC struck down Florida rule requiring that counsel be appointed only for “nonpetty offenses punishable by no more than six months imprisonment,” and held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel”: Where there is historical support for limiting the right to a trial by jury to serious criminal cases, there is no such support for a similar limitation on the right to assistance of counsel.

-- Misdemeanor cases may create an obsession for speedy dispositions, regardless of the fairness of the result.

-- Court uses the actual imprisonment standard: potential imprisonment does not render appointment of counsel in state non-felony cases; only actual imprisonment.

As a matter of state law in CA, CA provides appointment of counsel for indigents on any and all misdemeanor offenses, including fine-only offenses. Tracy v. Municipal Court

Scott v. Illinois-- Petitioner, an indigent, was charged with shoplifting merchandise, punishable by

as much as a $500 fine and/or one year in jail. He was not provided counsel and was convicted of the offense and fined $50. The Supreme Ct of Illinois refused to extend Argersinger to a case where one is charged with an offense for which imprisonment is authorized but not actually imposed.

-- The USSC agreed. The 6th and 14th Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

Nichols v. US—A logical consequence of Scott is that “an uncounseled conviction valid under Scott [because no prison term as imposed] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes . . . do not change the penalty imposed for the earlier conviction.” An uncounseled misdemeanor conviction can still be used to enhance a prison sentence when, after being given counsel, a defendant is convicted of a second crime.

Alabama v. Shelton—Shelton, convicted of a misdemeanor assault without counsel, was sentenced to 2 years of unsupervised probation followed by a suspended 30-day prison sentence if his probation was violated. The USSC affirmed that this suspended jail sentence was imprisonment within the definition of Argersinger. Where the State provides no counsel to an indigent defendant, the 6th Am does not permit activation of a suspended sentence upon the defendant’s violation of the terms of probation. (see problem 6 in reading 31—this could be on the exam)

The Griffin-Douglass Equality Principle (these Due Process and Equal Protection cases give indigents the right to ancillary services such as transcripts, experts, no filing fees, etc.)

Griffin v. Illinois (1956)-- There can be no equal justice where the kind of trial a man gets depends on the

money he has.-- The due process and equal protection clauses of the 14th Am require that all

indigent defendants be furnished a transcript, at least where allegations that manifest errors occurred at the trial are not denied (the state was affording this privilege was not given freely to all indigent Ds but only those convicted of capital crimes).

-- Destitute Ds must be afforded as adequate appellate review as Ds who have money enough to buy transcripts.

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-- Griffin was applied liberally and extended in the succeeding 15 yrs, excluding indigents from appellate filing fees and other transcript fees, defendants unable to pay fines could only be incarcerated as long as necessary to satisfy fines, etc.

Mayer v. Chicago (1971)-- An indigent appellant cannot be denied a record of sufficient completeness to

permit proper consideration of his claims because he was convicted of ordinance violations punishable by fine only.

-- Griffin’s principle is a flat prohibition against pricing indigent Ds out of as effective an appeal as would be available to others able to pay their own way.

Douglas v. California-- Indigent defendants requested, and were denied, assistance of counsel on appeal.-- California procedure allowed appellate courts to appoint counsel only if in their

opinion it would be helpful to the defendant or the court. The court of appeals stated that it had gone through the record and had come to the conclusion that no good whatever could be served by appointment of counsel.

-- Denial of counsel on appeal to an indigent under these circumstances constitutes a discrimination at least as invidious as that condemned in Griffin. There can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has. This preliminary requirement is unfair and discriminatory.

-- A defendant must be appointed counsel upon request on appeals as a matter of right from a criminal conviction of a felony offense.

Ake v. Oklahoma (1985)-- This case concerns an indigent defendant’s right to expert services in compliance

with the 14th Amendment’s due process guarantee of fundamental fairness.-- Ake, an indigent, was charged with murder. At his arraignment, the judge found

his behavior bizarre and ordered him to be examined by a psychiatrist. The psychiatrist found him to be incompetent to stand trial. After 6 weeks in a mental hospital, Ake was found to be competent to stand trial if sedated with an antipsychotic drug. Ake’s attorney informed the court that he would raise an insanity defense, but his motion for a psychiatric evaluation at state expense was denied. The jury rejected the insanity defense and Ake was found guilty. The state gave him the death penalty in reliance on its examining psychiatrist’s testimony which established Ake’s future dangerousness. Ake had no expert to rebut the state’s expert testimony or to mitigate his punishment.

-- The USSC reversed, holding that (1) at least when the defendant has made a preliminary showing that his

sanity at the time of the offense is likely to be a significant factor at trial, the state must provide access to the psychiatric examination and assistance necessary to prepare an effective defense based on the defendant’s mental condition AND

(2) when, at a capital sentencing proceeding, the state presents psychiatric evidence of the defendant’s future dangerousness, due process requires access to psychiatric assistance.

-- Ake was not given a fair opportunity to present his defense. Justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. Without access to this expert testimony, the risk of an inaccurate resolution of sanity issues is extremely high because the defendant is not able to present adequate information to the jury.

-- The court based its ruling on Griffin and other cases concerning the defendant’s meaningful access to justice.

-- The state must provide a competent psychiatrist, but D does not get to choose his psychiatrist.

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-- This case applies to call 1 on reading 31, problem 7-- This rule also applies to other types of experts.

Waiver of the Right to CounselFaretta v. California

-- Waiver of 6th Am Right to Counsel: The waiver of the 6th Am right to counsel must be knowing and intelligent. The court must carefully scrutinize the waiver to ensure that the D has a rational and factual understanding of the proceeding against him. However, the D need not be found capable of representing himself—the D’s ability to represent himself has no bearing on his competence to choose self-representation.

-- Petitioner initially represented himself against state charges of grand theft, but after the trial court determined that petitioner had not intelligently and knowingly waived his right to counsel, he appointed a public defender, ruling that petitioner had no constitutional right to conduct his own defense. Petitioner was convicted, the state appellate court affirmed the ruling and the conviction, and the state supreme court denied review.

-- The United States Supreme Court granted certiorari and reversed and remanded, holding that the state could not constitutionally force a lawyer upon petitioner because he was literate, competent, and understanding, and voluntarily exercised his informed free will. The Court said that while the right to effective assistance of counsel of the 6th Am was part of the due process of law guaranteed by the 14th Am to defendants in state criminal courts, counsel thrust upon petitioner would not be an assistant, but a master, "representing" petitioner only through a legal fiction. The Court cited the long history of the right of self-representation, and the consensus of federal court authority and state constitutions in support.

-- The constitution does not force a lawyer upon a defendant, but a State may, even over objection by the accused, appoint a "standby counsel" to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary.

-- 2 rights in the 6th Am: right to assistance and right to self-representation upon waiver of the first right; waiver must be knowing, intelligent, and voluntary and requires that the defendant must be must be aware of the dangers and disadvantages of self-representation

-- Defendant must know what he is doing and make the choice “with his eyes open,” but he does not have to have the capabilities that a lawyer has; Defendant must merely be mentally competent.

-- Standard of review on appeal: automatic reversalSee Faretta waiver forms.Other requirements for right of self-representation:

-- Must be timely assertion-- Must be mentally competent-- Can be revoked if defendant substantially disrupts court proceedings

Godinez v. Moran—Competency standard for waiving the right to counsel: whether the D has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as functional understanding of the proceedings against him

Martinez v. Court of Appeal of California-- There is no constitutional right to self-representation on appeal from a

criminal conviction.-- Reasoning: Appeals as of right were non-existent when the Constitution was

established, so there is no historical evidence to support an affirmative constitutional right to appellate self-representation.

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California has held that defendants have a right to be co-counsel to appointed counsel.McKaskele v. Wiggins

-- A back-up attorney may be appointed and may intervene to a limited extent, as long as the impression of self-representation is not destroyed.

-- D is entitled to preserve actual control over the case he chooses to present to the jury. If the standby counsel’s participation over the D’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the D on any matter of importance, the Faretta right is eroded.

-- Participation by standby counsel without the D’s consent should not be allowed to destroy the jury’s perception that the D is representing himself. The D’s appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused’s individual dignity and autonomy.

Lower cts have generally rejected claims of ineffective assistance by standby counsel. They note that the pro se D cannot complain of his own ineffective performance.

Iowa v. Tovar-- Without counsel, respondent pled guilty to a first offense of operating a motor

vehicle while under the influence of alcohol (OWI). During a subsequent proceeding, the state trial court denied respondent's motion urging that the first OWI conviction could not be used to enhance respondent's third OWI charge because the waiver of counsel was invalid. The Supreme Court of Iowa reversed. Certiorari was granted.

-- Respondent waived application for a court appointed attorney for his first OWI charge and expressed his desire to plead guilty. The state trial court conducted the guilty plea colloquy required by state law. In the third OWI proceeding, respondent argued that his waiver of counsel was not knowing, intelligent, and voluntary. The state supreme court determined that the colloquy preceding acceptance of respondent's first guilty plea had been constitutionally inadequate. The state supreme court determined that respondent should have been advised of the usefulness of an attorney and the dangers of self-representation in order to make a knowing and intelligent waiver of his right to counsel. The Court determined that the Sixth Amendment did not require the two admonitions ordered by the state supreme court in respondent's case. Also, it was far from clear that warnings of the kind required by the state supreme court would have enlightened respondent's decision whether to seek counsel or to represent himself.

-- The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a "critical stage" at which the right to counsel adheres.

-- Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances.

-- Regarding the argument that a court must (1) advise a defendant that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defense will be overlooked and (2) "admonish" the defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty, neither warning is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.

-- The prerequisites for a waiver are satisfied (the waiver is valid) when the trial court informs the accused of (1) the nature of the charges against him,

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(2) of his right to be counseled regarding his plea, and (3) of the range of allowable punishments attendant upon the entry of a guilty plea.

-- On appeal, the burden is on the defendant to illustrate that he did not competently and intelligently waive his right to counsel.

Questions for Study, Reading 22-- (1) At what stages of the criminal process does the right to counsel attach?

Not considering self-incrimination, a D is not entitled to the assistance of counsel unless- (a) adversary judicial proceedings have commenced (the 6th Am right to counsel is

guaranteed only “in all criminal prosecutions”; the right to counsel attaches only at or after the time that the adversary proceedings have been initiated against an accused), AND

- (b) the encounter is a “critical stage” of the criminal proceeding. Kirby v. Illinois—D was not entitled to counsel at his lineup because it was held prior to his

indictment US v. Ash—prosecutor showed photos of D and others to witnesses after adversary criminal

proceedings had begun, but D was not entitled to counsel because the photographic display was not at a “critical stage” of the prosecution; the right to counsel is limited to “trial-like confrontations” between prosecuting authorities and the accused where the lawyer acts as “a spokesman for, or advisor to, the accused.”

The right to counsel does not come into play until the stage of the prosecution is critical—at or after the time that judicial proceedings have been initiated against D, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v. Williams

When judicial proceedings have not been initiated against a person, the privilege against self-incrimination as interpreted in Miranda (only) strikes an appropriate balance.

At the pre-charge stage, at least when the suspect neither has nor has expressed a desire for counsel, the right to counsel is triggered by, and dependent upon, forces that “jeopardize” the privilege against compelled self-incrimination.- US v. Gouveia—During the investigation of murders of fellow inmates in federal prison,

Ds were isolated in detention for several months. USSC held that administrative detention of inmates for investigation does not invoke the right to counsel because there has been no indictment; counsel would only serve the purpose of private investigator.

Other cases:- Miranda—custodial interrogation- US v. Wade—pretrial lineups- Coleman v. Alabama—preliminary hearings

-- (2) At what stages of the criminal process is an indigent defendant normally NOT entitled to appointed counsel? The 6th and 14th Amendments require only that no indigent criminal defendant be sentenced to

a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. Scott v. Illinois

-- (3) What are the distinctions between the 6th Am right to assistance of counsel (“trial right”), and the Miranda right to counsel (right to assistance of counsel during custodial interrogation)? 6th Am right to counsel only attaches as stated in (1), whereas Miranda rights attach upon

custodial interrogation. 6th Am trial right is not available when defendant is not convicted of imprisonment.

-- (4) What standards govern waiver of the right to counsel (6th Am trial right)? The burden is on the state to prove “an intentional relinquishment of a known right or

privilege.” Johnson v. Zerbst Current standard: But, where a defendant makes no request for counsel at arraignment, a

waiver of Miranda rights alone will suffice for a waiver of the 6th Am right. Patterson v. Illinois

-- (5) What is the federal test for ineffective assistance of counsel under Strickland v. Washington? See case below

-- (6) What basic duties are included within a defense attorney’s minimum performance duties in a criminal case; i.e., what tasks are included under the “performance prong”? see Strickland below

-- (7) In what types of 6th Am cases is prejudice presumed? Actual or constructive denial of the assistance of counsel altogether is legally presumed to

result in prejudice. Prejudice is presumed when counsel is burdened by an actual conflict of interest. 

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-- (8) What has to be demonstrated on the record as a necessary basis for a valid waiver of rights upon a guilty or no contest plea?

-- (9) Does an indigent defendant have a right to appointed counsel of her own choice? No, but competent counsel must be provided????

Prerequisite of a Constitutional right: Where due process requires the state to provide counsel for an indigent D, “that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama

Raising an ineffectiveness claim (note 6 on p. 155-56):-- 2 major obstacles restrict raising an ineffective assistance claim on direct appeal

from a criminal conviction: (1) very often, the attorney on appeal is the trial counsel (2) the record on appeal is limited to the actions taken in recorded

proceedings, thus excluding from consideration various other circumstances that may be relevant in presenting an ineffective assistance claim.

Because of these obstacles, almost all jxs prefer that ineffective assistance of counsel claims be presented on collateral attack so that evidence can be presented beyond the trial record and the D can raise the claim pro se or with a different attorney.

Strickland v. Washington-- On review by the Supreme Court, respondent contended that his death sentence

should have been overturned as the strategic decisions upon which he was advised by his attorney during the guilt and penalty phase of his trial constituted ineffective assistance of counsel, thus violating his right to counsel pursuant to U.S. Const. amend. VI. On appeal, the death sentence was affirmed. In support of its ruling, the Supreme Court held that in order to show that counsel's assistance was so defective as to require reversal of a death sentence, respondent must have shown counsel's performance was deficient, and that such deficient performance prejudiced the defense. In applying this standard, the Court further held that respondent's counsel's performance could not be deemed unreasonable, and even if such was the case, respondent suffered insufficient prejudice to warrant setting aside his death sentence. In addition, in failing to make a showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance, respondent also failed to show that his sentencing proceeding was fundamentally unfair. Respondent's death sentence was affirmed as respondent's counsel's performance could not be deemed unreasonable, and even if such was the case, respondent suffered insufficient prejudice to warrant setting aside his death sentence.

-- In order to show that counsel's assistance was so defective as to require reversal of a death sentence, respondent must have shown counsel's performance was deficient, and that such deficient performance prejudiced the defense. Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render adequate legal assistance. The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.

-- To succeed on an IAC claim, appellant must show both prongs of the test are satisfied:

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Performance prong : This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Appellant must show counsel’s trial performance was deficient; the proper standard for attorney performance is that of reasonably effective assistance. The Court has declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.- Basic duties included within a defense attorney’s minimum performance

duties in a criminal case; i.e., tasks included under the performance prong: Criminal defense counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations unnecessary.

Counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest, a duty to advocate the defendant's cause, a duty to consult with the defendant on important decisions, a duty to keep defendant informed of important developments in the course of the prosecution, and a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

Defense attorney must diligently advocate for the client and make sure all his rights are met. He is not required to fight for the truth.

After applying the performance prong, it would be useful (but not required) to say that the performance prong was described by justice o’connor as requiring from a defense attorney certain duties: (see above).

Prejudice prong : Appellant must show that there is a reasonable probability that but for counsel’s deficient performance, the result would have been more favorable to appellant. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

-- This case also applies to the appellate counsel in a first appeal as a matter of right.-- Prosecution has a duty to ensure that justice is done and to diligently advocate for

conviction. They must, at all times, be convinced beyond a reasonable doubt that the suspect is guilty. If, at any point, they are not convinced, they are ethically required to terminate the case.

-- Appellant can also use the ineffective assistance of counsel cause of action for certain counts rather than the entire case.

Kimmelman v. Morrison-- Application of Strickland -- Petitioner state sought review of the decision of the Court of Appeals (New

Jersey), which concluded that the restrictions on federal habeas review of Fourth Amendment claims should not have been extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. The Court affirmed the

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appellate court's decision because the accused was rendered ineffective assistance of counsel.

-- Respondent accused was convicted of raping a 15-year-old girl. The accused's counsel objected to the introduction of a bed sheet that had semen on it and to any testimony concerning it on the ground that it was seized without a search warrant. Because the 30-day deadline under N.J. Ct. R. 3-5:7 had long since expired, the trial judge ruled that counsel's motion was late. After trial, the accused dismissed his attorney and retained new counsel for his appeal. The United States Supreme Court noted that until the first day of trial, the accused's counsel was unaware of the search and of the state's intention to introduce the bed sheet into evidence because the counsel had conducted no pretrial discovery. Thus, the Court determined that the assistance rendered the accused by his trial counsel was constitutionally deficient because his attorney failed to file a timely suppression motion, which was not due to strategic considerations.

-- Both prongs of the Strickland test were met.Yarborough v. Gentry

-- Application of Strickland-- Respondent was convicted of assault with a deadly weapon, although he asserted

that the stabbing was accidental, and respondent contended that his counsel was ineffective for failing to raise issues in summation. Upon the grant of a writ of certiorari, petitioner custodial official appealed the order of the United States Court of Appeals for the Ninth Circuit which reversed the order denying respondent's habeas corpus petition. The order reversing the denial of habeas corpus relief was reversed.

-- The trial summation of respondent's counsel emphasized that the credibility of respondent was the primary issue, that the eyewitness testimony was very questionable, and that unfavorable factors such as respondent's criminal history were irrelevant. Respondent contended that counsel failed to highlight other exculpatory evidence, improperly reminded the jury of respondent's shortcomings, and repeatedly stated that no one who was not at the scene knew the truth, thus implying that counsel did not believe respondent. The United States Supreme Court held, however, that judicious selection of arguments for summation was a core exercise of counsel's discretion and it could not be said that the state court finding of no deficient performance by counsel was objectively unreasonable. Exculpatory evidence which could have been explored could also have been exploited by the prosecution, and there was no rebuttal of the strong presumption that counsel's focus on certain issues was based on tactical reasons. The issues counsel omitted were not so clearly more persuasive than those he discussed that their omission could only be attributed to a professional error of constitutional magnitude.

-- The right to effective assistance of counsel extends to closing arguments. Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should sharpen and clarify the issues for resolution by the trier of fact, but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. Judicial review of a defense attorney's summation is therefore highly deferential, and doubly deferential when it is conducted through the lens of federal habeas. When counsel focuses on some summation issues to the exclusion of others,

there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.

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Wiggins v. Smith-- Petitioner state death row inmate sought federal habeas corpus relief claiming

ineffective assistance of counsel, which the trial court granted. Reviewing the district court's decision de novo, the United States Court of Appeals for the Fourth Circuit reversed, holding that counsel had made a reasonable, strategic decision. The United States Supreme Court granted certiorari. The Court reversed the judgment of the circuit court and remanded the case for further proceedings consistent with this opinion.

-- The inmate claimed that his Sixth Amendment right to counsel was violated by counsel's failure to investigate the inmate's background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings. The evidence would have shown severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother, physical torment, sexual molestation, repeated rape during subsequent years in foster care, a period of homelessness, and diminished mental capacities. The U.S. Supreme Court held that counsel's decision not to expand their investigation beyond the pre-sentence report and department of social services (DSS) records fell short of professional standards prevailing in the state.

-- The mitigating evidence that counsel failed to discover and present was relevant to assessing the inmate's moral culpability. Given the nature and the extent of the abuse the inmate suffered, there was a reasonable probability that a competent attorney would have introduced it at sentencing. Moreover, had the jury been confronted with the evidence, a reasonable probability existed that it would have returned a different sentence. The records revealed several facts that could have been used for mitigation: mother was a chronic alcoholic, Wiggins went through several foster homes and displayed emotional difficulties there, he had frequent, lengthy absences from school, and his mother left him and his siblings alone for days without food.

-- In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

-- Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the constitutionally protected independence of counsel at the heart of Strickland. However, strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. A decision not to investigate thus must be directly assessed for reasonableness in all the circumstances. 

Reading 31, problem 7, parts 1,2,4

REVEW SESSION:

4th Am analysis-- Refer to flow chart (reading 1)-- Warrant Exceptions:

Search incident to arrest Automobile exception Exigency Officer safety frisk/weapons frisk

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Officer-protective sweep Border searches Voluntary consent Special needs/regulatory searches (Balancing test applied: public need v.

intrusion upon individual)-- Reasonableness balancing test: public need v. intrusion upon individual;

originally came from Terry v. Ohio, Camara, Mendenhall (criminal searches) and has also been applied for deterrence purposes (non-criminal inventory searches); See ch. 17 and 18 in Dressler

-- Threshold issue in search questions: reop; discuss even if not requested—do a limited reference to it if not requested unless it is a major factual issue (like bum with tent under highway) 2 part general rule of Katz v. US (subjective eop and objective eop that

society recognizes that expectation as reasonable) 5 per se valid reop situations: (1) right to exclude others from area searched,

(2) continuing access to premises and possessory interest in item seized, (3) legitimately on premises and possessory interest in item seized, (3) valid bailment, (4) D himself has been personally seized by police (Ybarra, Terry, Mendenhall, Hodari D.), (5) business premises? Missing one? See outline.- in business premises, mere fact that others have access to the area does not

deplete reop- lionberger—what is the standing/reop of passengers in cars; case-by-case

basis; does jx recognize the distinction between car and driver?-- Probable cause in affidavit and detention requirements–explain previous and

current rules on exam Sibron—full probable cause needed when reaching in pockets, even if valid

detention (tricky fact pattern)-- 4th Am detention and Miranda custodial interrogation are DIFFERENT issues—

do separate analyses-- know statutory warrant execution issues: common law—daytime, California

statute—give hours-- no knock-notice issues on exam-- Draper v. US

correction on pg 3 of search warrants analysis on claranet (see discussion of draper—weakness in reliability prong should read p. 286-289; rehnquist at n12 is talking about a reliability weakness in the tip in draper; dressler is talking about a weakness in the basis of knowledge issue can be excused under the old standard—a weakness (not absence) of the basis of knowledge does not doom the warrant, see dressler 132-33)

-- good faith exception extended to police reliance on mistaken entry in computer records (only case where exception is applied to case other than warrant execution); Evans case?

-- Vehicle exception (requires probable cause), search incident to arrest (in vehicles, limited scope search—passenger compartment only), officer’s safety (Michigan v. long), consent, not search for criminal purpose (bertine—inventory search; valid inventory policy – requires scope to limit discretion in searching, may be oral; must be standardized departmental policy and must be followed; policy must be for non-criminal purposes)

-- Ingersall v. palmer, -- Fruit of poisonous tree and exclusionary rule

Exclusionary rule requires balancing test—rule does not apply in probation situations, civil deportation proceedings, or in grand jury proceeding

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Fruit of poisonous tree has attenuation factors even if the original police act was illegal (time, link of causal chain, intervening acts of free will, flagrancy of police violation, nature of derivative evidence, and perhaps were the Miranda warnings given, independent source rule, inevitable discovery)

THREE QUESTIONS TO ADDRESS:(1) 6th Am violation?(2) Due Process violation?(3) Independent origin rule—1 page outline handout, harmless error exception

6th Am analysis-- see 11x17 handout; shows when 6th Am right kicks in; see Manson factors and

Caljic factors (reading 16)—know both-- know Moore v. Illinois

Confessions and admissions-- 4 tests in outline and in claranet material (2 are sourced in the 5th Am, but

different parts of the 5th Am) (1) due process voluntariness test – based on DP Clause of 5th and 14th Ams (2) Miranda – privilege against self-incrimination of the 5th Am (3) (4)

-- flinders question and bar question 4 part 2, Miranda violation is obvious, but the second issue is difficult (in question 4, part 2, confession was also the fruit of the poisonous tree—illegal arrest)

-- thoroughly covered in reading 17

6th Am right to counsel-- 2 approaches to the question, when is an indigent criminal D entitled to appt of

counsel? (1) When the criminal prosecution commences, when adversary judicial

proceedings begin, the D has a right to free appointed counsel if he cannot afford it OR

(2) critical stages of the prosecution—any adversary proceedings in the criminal case, any felony charge in state court, post-indictment lineups, etc…see outline by kroeber; not critical stages—taking of blood, handwriting samples even after indictment, photo lineups, discretionary appeals after the 1st appeal as a matter of right, alley confrontations, - mention both approaches

-- right to appointed counsel—3 major cases, all felonies in federal or state ct, any jail time actually imposed under argersinger, extends to suspended jail sentences and daytime jail—picking up trash

-- right to self-represent: (1) must be timely asserted, (2) must be mentally competent—cannot have suffered from an impairing mental disease in the recent past, (3) if, after granting the right of self-representation, the D becomes seriously disruptive of court proceedings to the point where it impedes the operation of court, the court can impose counsel upon the D

-- ineffective counsel? 2 prong Strickland test-- right to ancillary services

Due process analysis-- Simmons and Stovall rule—so impermissibly suggestive…

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