Criminal Procedure Outline 9/27/09 11:05 AM

I. Opening thoughts

A. The legislature

1. Power to define what conduct is criminal. Power to expand or

reduce the CJ system, and thereby change the police presence

a.

i.

01.

a.

1.

B. Police

1. Police have great discretion about what they will investigate,

they have the power to not seek further, to not press charges

2. Unlike most hierarchy, the most discretion is at the bottom,

w/beat cops. More discretion than those at the top

C. Lawyers, prosecution & defense

1. Seek justice, not convictions

D. Judicial Review

1. Instruct police by regulating admissibility.

II. Packer Article

A. The tension b/w the Crime Control Model v. Due Process Model

1. Crime Control Model

a. Do justice swift, accurate, conviction of crime.

Efficiency, effectiveness, expeditious. Deals with

probabilities.

2. Due Process Model

a. Do justice by proving legal guilt. Must prove beyond a

reasonable doubt.

i. Presumption of innocence

ii. Do it the right way, not worried about losing

iii. The model is adversarial and judicial.

III. Exclusionary Rule

A. Exclusionary rule: if police obtain evidence in violation of the 4th

amen., cannot use that evidence at trial.

B. The exclusionary rule is the primary remedy for 4th amen.

violations; applied through motions to suppress.

C. The purpose of the rule is to deter the police, by removing any

incentive to disregard the rule.

D. Mapp v. Ohio all evidence obtained by S&S in violation of the

constitution is inadmissible in both state and fed. court against

those whose privacy interest wer violated. Rationale deterrence,

judicial integrity, provides a remedy.

1. Argument against the exclusionary rule: “the criminal is to go

free b/c the constable has blundered.” Cardoza

2. Argument for the rule:

a. “Our government is the potent, omnipresent teacher.

For good or for ill, it teaches the while people by its

example…If the government becomes a law breaker, it

breeds contempt for the law; it invites every man to

become a law unto himself; it invites anarchy.” Clark,

quoting Brandeis in Olmstead.

b. Nothing can destroy a government more quickly than its

failure to observe its own laws, or worse, its disregard of

the charter of its own existence. Clark, maj.

3. Mapp sets the federal minimum, does not set the ceiling.

4. Mapp: the 4th amen. is applied to the states through the 14th

amen.

5. Mapp applied the exclusionary rule to the states.

6. Does exclusion encourage perjury?

7. Dissent: (Harlan)

a. States should make up their own minds.

b. Fairness at trial

i. “I do not see how a trial becomes unfair simply

b/c a state determines that evidence may be

considered by the trier of fact, regardless of how it

was obtained, if it is relevant to the guilt or

innocence of the accused.

ii. All due process guarantees is fairness at trial.

iii. CA: could come at a very high cost, a murderer

gets away on a technicality.

iv. CA: the gov. is breaking the law.

01. CA: they don’t have the right to commit the

crime.

E. Exceptions to the exclusionary rule

1. These allow tainted evidence to come in.

IV. Searches

A. Katz

1. “what a person knowingly exposes to the public…is not subject

to 4th amen. protection. But what he seeks to preserve as

private, even in an area accessible to the public, may be

constitutionally protected.” Stewart, maj.

a. The 4th amen. applies to persons, not things/places.

2. “Warrantless searches are per se unreasonable, subject only to

a few specifically established and well-delineated exceptions.”

Stewart, maj.

3. Harlan (concurrence):

a. That a person has exhibited an actual (subjective)

expectation of privacy, and

b. That the expectation be one that society is

prepared to recognize as reasonable.

4. Privacy is the trigger for the 4th amen., not trespass.

5. When 4th amen. applies need a warrant, unless an exception

applies.

B. Open fields

1. No 4th amen. protection for open fields

a. There is no reasonable expectation of privacy

b. It does not matter that police are trespassing, the 4th

amen. applies to people, not places.

C. Curtilage

1. The area surrounding the home where reasonable privacy

expectations receive 4th amen. protection. The area where the

intimacies of life take place.

a. Dunn Four factors:

i. Proximity of the area to the home,

ii. whether the area is included w/in an enclosure

surrounding the home,

iii. the nature of the uses to which the area is put,

and

01. whether it is used for the intimacies of life

iv. the steps taken by the resident to protect the area

from observations by the people passing by.

2. Ariel surveillance

a. CA v. Ciraolo (although the backyard was w/in the

curtilage and a fence shielded the yard from street

view, aerial surveillance from 1,000ft. did not constitute

a search – could be observed w/ the naked eye, flight at

that altitude is routine… no reasonable expectation).

b. FL v. Riley (surveillance of partially enclosed

greenhouse by helicopter at 400ft.)

i. Ct. says there was a subjective expectation: w/in

curtilage and had taken precautions.

Nonetheless, the helicopter was w/in lawfully

navigable airspace where members of the public

travel w/ sufficient regularity, and it did not

interfere w/ the regular use of the curtilage, such

there was no reasonable expectation of privacy

(and therefore no “search”).

ii. The burden of proof was on the ∆ to show that

flights didn’t occur. O’Connor says that this would

be a factor, in her concurrence.

iii. Dissent points out public observation is not

commonplace from that vantage. No proof

showing that aircraft actually did fly over.

iv. Note: physical invasion of the curtilage is still

likely to be a “search.”

D. Bond v. US (physical manipulation of exterior of bag on bus was a

“search”).

E. Dogs

1. US v. Place (sniff test by narcotics dog): not a “search.” The

olfactory frisk is sui generis in that the means are less intrusive

and the content revealed is surgically precise (only reveals the

presence or absence of contraband) and so invades no privacy

interest.

a. The dog sniff only reveals crime, and there is no 4th

amen. protect of crime.

b. But, what about Harlan: personal sense of security, not

the criminal, and then balance that with the utility to

law enforcement.

2. Caballes

a. A dog sniff is not a 4th amen. search, so don’t need

probable cause.

F. U.S. v. White, by J. White, (electronic surveillance via informant ≠

“search”)

1. Testimony obtained by an informant is not protected by the 4th

amen. no warrant required if informer could have testified,

then the agents could testify as to what was said

2. This technique of deceiving an informant into thinking that the

confidant should be trusted is important for drug trafficking

cases.

3. In the same way that expectations/misplaced trust of

colleagues or undercover agents is not protected, recorded

transmissions of those conversations are also not protected [a

sort of implicit “knowing exposure” conception] In fact, a bug

is more accurate and reliable than testimony.

4. Basically: the police can do what they want in this context of

‘bugging’ as long as they find a ‘willing accomplice.’

5. Harlan dissent:

a. “Since it is the task of the of the law to form and

project, as well as mirror and reflect, we should not

merely recite the expectations and risks w/out

examining the desirability of saddling them upon

society. The critical question is whether under our

system of government, as reflected in the Const. we

should impose on our citizens the risks of the electronic

listener or observer w/out at least the protection of a

warrant requirement”

b. The question must be answered by assessing the nature

of a particular practice and the likely

i. extent of its impact on the individual’s

sense of security; balanced against

ii. the utility of the conduct as a technique of

law enforcement.

01. Concerned with impact on sense of security,

free social intercourse, and the chilling effect

on public discourse.

G. Knowing exposure to the public defeats any reasonable expectation

of privacy.

1. Greenwood trashbags on curb case

a. The trash bags were knowingly exposed. They were

accessible to the public and were conveyed to a third

party.

b. Dissent: trash harbors evidence telling of the intimate

activity associated with w/the sanctity of a man’s home,

and the privacies of life. The contents were concealed.

Katz’s “what a person seeks to preserve as private,

even in an area accessible to the public, may be

constitutionally protected.” Relinquishment does not =

relinquishment of privacy interest.

H. Tracking

1. Knotts (tracking device in chemical drums)

a. There is no reasonable expectation for privacy of travel

(b/c its visually available)

2. Karo

a. Used a beeper to track

b. You can use the beeper information when it is in a

public place, can’t use the info when it was in the

house.

c. The tainted info which was included in the warrant

affidavit would invalidate the warrant for the search of

the house if it proved to be critical to establishing the

probable cause. But here, there was sufficient

untainted evidence to support probable cause.

d. Dissent: when people are on a public highway, but are

attempting to conceal things, should be afforded 4th

amen. protection.

I. Kyllo thermal imaging case

1. The home is the place of heightened security.

2. Scalia: Any information obtained w/technology that could not

otherwise have been obtained w/out physical intrusion (into a

const. protected area) is a “search,” at least where the

technology in question is not in general public use.

3. In the home all details are intimate details, court declares a

bright line at the entrance to the house. Merely b/c it is

external doesn’t mean it is knowingly exposed.

4. Dissent: no info revealed about the interior of the home (only

external); no reasonable expectation. Emphasizing privacy in

the home reduces mobility and favors the rich.

J. Privacy & cameras/pictures

1. Public exposure of our faces, and cameras and pictures being

taken.

2. What about terrorism?

a. Cases imply that maybe, where the issue is terrorism,

we might not protect so much

V. Seizures

A. Police never need justification to seize contraband, or the fruits or

instrumentalities of crime (although there might be a 4th amen.

expectation of privacy regarding the search for those things).

B. If not a 4th amen. seizure, then no justification needed.

C. Justification:

1. Probable cause

2. warrant

3. Consent

D. Seizure of a person (arrest)

1. Arrests require 4th amen. justification

2. Arrests in public usually only require PC, usually don’t require a

warrant

3. As a general rule: police may approach anyone, and ask a few

questions. (mere encounter rule). That does not invoke the 4th

amen. Also, if people consent, no 4th amen. issue.

E. Bus cases

1. Bostick

a. O’Connor, maj.: “so long as a reasonable person would

feel free to disregard the police and go about his

business, the encounter is consensual = not trigger 4th

amen.”

b. A seizure occurs when a reasonable person would

believe that he or she is not free to leave/terminate the

encounter.

i. O’Connor, maj.: Only when an officer, by means

of physical force or show of authority, has in some

way restrained the liberty of a citizen may we

conclude that a seizure has occurred (subject to a

Terry stop & frisk exception, Terry stop just needs

reasonable suspicion)

01.

c. Test for seizure:

i. When a reasonable (innocent) person would

feel free to decline the officer’s request or

otherwise terminate the encounter. (totality

of the circumstances)

01. If it is not an arrest police do not need

justification (aka PC)

ii. The court expects ∆ to deny consent.

2. Drayton Kennedy, maj.

a. No requirement to inform individuals of a right to refuse

consent. (aka no requirement of informed consent)

i. the mere display of badge or presence of firearm

(so long as not brandished) is insufficient

ii. There were no threats or intimidation, and there

was an open exit.

iii. Totality of the circumstances.

01. Lack of informed consent could be a factor in

the totality of the circumstances.

b. Note: suspicionless seizure will invalidate the

subsequent search (incident to arrest)

3. Mendenhall

a. Provides factors the presence of which might suggest

that a given police-citizen encounter constitutes a 4th

amen. seizure:

i. The threatening presence of several officers

ii. The display of a weapon by an officer

iii. Physical touching

iv. The use of language or tone of voice indicating

that compliance with the officer’s request might

be compelled.

4. Brower

a. Case where the ∆ had a stolen car, police set up a road

block around a bend so he would crash.

b. Violation of the 4th amen. requires an intentional

acquisition of physical control.

5. Hodari D

a. Case where ∆ was fleeing, threw the crack while

running, was he seized by the show of authority, the

officer chasing him? b. A suspect who attempts to run away from police is not

“seized” when police pursue him. An arrest (“seizure”)

requires either:

i. Physical force, or

ii. Submission to the assertion of authority.

VI. Probable Cause

A. PC: known facts and circumstances + inferences therefrom are that

would be sufficient to warrant a man (officer) of reasonable

prudence in the belief that contraband or evidence of a crime will be

found.

B. PC is the std. for justification of gov. interference, it appears in the

warrant clause, it is required for all warrants.

1. PC is also required for all arrests. (although not all arrests

require warrants).

C. Measurement spectrum of probability of crime

1. Suspicion PC Certainty.

D. The default rule is that both warrant and PC are required, although

there is an attack on this, which is that the unreasonable search and

seizure clause is independent of the warrant requirement.

1. Argument: the search and seizure clause does not require a

warrant in every place, it just requires that searches and

seizures be reasonable, and warrants are only required when

they would have been required back in 1979 (when the 4th

amen. was passed).

E. PC evaluation:

1. Antecedent/magistrate v. post-hoc/judge

a. Post-hoc the ringing bell problem

2. Antecedent PC evaluation Warrant

a. Rationale:

i. Jackson, in Johnson v. U.S.

01. “The point of the 4th amen., which is not

often grasped by zealous officers, is not that

it denies law enforcement the support of the

usual inferences which reasonable men draw

from evidence. Its protection consists in

requiring that those inferences be drawn by a

neutral and detached magistrate instead of

being judged by the officer engaged in the

often competitive enterprise of ferreting out

crime. Any assumption that evidence

sufficient to support a magistrate’s

disinterested determination to issue a search

warrant will justify the officers in making a

search w/out a warrant would reduce the

amendment to a nullity and leave the

people’s homes secure only in the discretion

of police officers.”

F. Nathanson: An officer’s conclusory statement that establishes no

basis for the conclusion will never be enough to establish PC.

1. Have to provide factual details, no bare bones conclusory

statements.

G. Draper guy walking fast, anonymous tip

1. There was strong corroborating evidence, the officers observed

the informant was correct in what the ∆ was wearing, what

train, that he would be walking fast.

2. This illustrated a case where there was PC based upon an

anonymous tip. Prosecution will always analogize to Draper.

H. Illinois v. Gates (anonymous letter to the police + subsq.

surveillance used to get warrant)

1. Reject two-prong test of Spinelli, which required (1) the affidavit

must adequately reveal the basis of knowledge, i.e. the means

by which the informant came by the information, and (2) facts

sufficiently establishing either the veracity of the affiant’s

informant or the reliability of the informant’s report in this

particular case.

2. “Adopt a totality of the circumstances approach for

probable cause, in which the two prongs are merely important

factors. Probable cause is a fluid concept, and the magistrate

is to make a practical, common-sense decision whether there is

a fair probability that contraband or evidence of a crime will be

found in a particular place. (and the duty of the reviewing

court is simply to ensure that the magistrate had a substantial

basis for concluding that PC existed).”

3. **Totality of the circumstances approach:

a. The magistrate is to:

i. Make a practical, common-sense decision

whether

ii. Given all the circumstances set forth in the

affidavit,

iii. Including the “veracity” and “basis of

knowledge” of persons supplying hearsay

information,

iv. There is a fair probability that contraband or

evidence of a crime will be found in a particular

place.

01. Weakness in one element can be made up by

strength in another.

4. The sufficiency of an anonymous tip may depend upon the

detail of info. and the congruence of the tip w/ facts

independently observed (i.e. suspicion engendered in tip may

ripen into PC if enough facts in the tip are corroborated by

police). Draper, guy in trenchcoat that walked fast.

a. Reviewing courts are to pay “great” deference to

a magistrate’s determination of PC (need only a

substantial basis for finding PC), but where police act

w/out a warrant there is no deference to the lower ct.’s

determination. Remember, no warrant = presumptively

unreasonable.

I. Ornelas

1. Rule for warrantless searches:

a. PC should be reviewed de novo, w/

b. Due weight given to inferences drawn from those facts

by local judges and local law enforcement. (police

officer may draw inferences based on his own

experience).

i. Std: reasonable police officer

ii. Note 1 p.441: This instruction is not simply

inconsistent with true de novo review; it is

inconsistent in a way that gives the prosecution a

leg up. A deferential std. of review like “clear

error,” the std. initially applied by the court of

appeals in Ornelas, gives weight to the judgments

of the trial court, but not to those of the officers

involved in the case. By rejecting a “clear error”

standard in favor of a “de novo with due weight”

standard, the Court in effect declared that police

officers should receive as much deference as trial

judges. Taken as a whole, then, Ornelas may

make appellate review of suppression rulings

appreciably more hospitable to law enforcement.”

2. Note: If there is a warrant, the magistrate’s determination is

entitled to deference and is reviewed for clear error.

3. So, PC review for warrantless searches is stricter than searches

w/ a warrant. (where great deference is given to the

magistrate from Gates). This provides an incentive to law

enforcement to get a warrant.

a. “due deference” probly = “great weight”

i. argument against this:

01. J. Jackson in Johnson v. U.S. p.421: “The point

of the 4th amendment, which often is not

grasped by zealous officers, is not that it

denies law enforcement the support of the

usual inferences which reasonable men draw

from evidence. Its protection consists in

requiring that those inferences be drawn by a

neutral and detached magistrate instead of

being judged by the officer engaged in the

often competitive enterprise of ferreting out

crime. Any assumption that evidence

sufficient to support a magistrate’s

disinterested determination to issue a search

warrant will justify the officers in making a

search without a warrant would reduce the

Amendment to a nullity and leave the

people’s homes secure only in the discretion

of police officers.”

02. So: Jackson: that default to the police officer,

that deference to the officer, is not allowed by

the 4th amendment. The magistrate is a

necessary bulwark. He really likes the

warrant process.

J. Pringle

1. Yes PC; car passenger often engaged in common enterprise as

the driver

a. Implication : court found it reasonable to infer that any

or all three of the occupants of the vehicle had

knowledge of, and exercised dominion and control over,

the coke.

b. Exclusion : if the informer singles out the guilt person,

then the PC is particularized. Di Re.

K. Ybarra (guy gets frisked in the bar, when the officers were at the

bar b/c they suspected the bar owner was dealing heroin)

1. PC: requires a reasonable ground for belief of guilt, and that

belief of guilt must be particularized with respect to the person

to be searched or seized. Particularity is required, mere

propinquity is not enough.

2. Person must be independently suspected of criminal activity –

individualized/particularized suspicion needed w/regard to the

person to be searched or seized.

VII. Warrants

A. Required for a warrant:

1. PC

2. Supported by oath or affirmation

3. Particularly describing the place to be searched, or the persons

or things to be seized.

4. Determination of PC must be decided by an official detached

from law enforcement (aka neutral magistrate) (cannot be A.G.,

also cannot have fee deferential e.g. $0.50 for approval and

$0.25 for denial.)

B. As long as the affidavit is done under penalty of perjury, can be

phoned in, faxed in, etc. Magistrate does not have to be there.

C. Particularity requirement:

1. A description should be particular enough to permit an officer

w/ reasonable effort to ascertain and identify the place

intended. If it is so ambiguous that police can’t discern, then

search cannot proceed. If there is clarifying info. then the

search may be permitted.

2. Where there’s a mistake, the validity of the search depends on

whether the officers’ failure to realize the overbreadth of the

warrant was objectively reasonable.

3. The ‘things to be seized’ requirement limits the scope (spatially

and temporally) of a search (subject to the plain view

exception).

D. Anticipatory Warrant (“triggering condition”)

1. As long as there is PC, don’t need the triggering condition on

the face of the warrant.

2. Grubbs

a. Scalia, maj., requirements for PC for an anticipatory

warrant:

i. “It must be true not only that if the triggering

condition occurs ‘there is a fair probability that

contraband or evidence of a crime will be found in

a particular place’ (taking quote from Gates); but

also ii. That there is PC to believe the triggering condition

will occur.

01. Scalia: the mere possibility that triggering

condition will not happen is not enough to

destroy PC.

02. Prof: If the time period of the warrant is

unknown, then might have to worry about the

warrant becoming stale. PC is a perishable

commodity.

a. But there is nothing in the 4th amen.

about putting a date on the warrant.

b. Requirement to display/show warrant to property

owner?

i. Nope.

01. The requirement of particular description

does not protect an interest in monitoring

searches.

a. Scalia: “the absence of a

constitutional requirement that the

warrant be exhibited at the outset of

the search of indeed until the search

has ended, is…evidence that the

requirement of particular description

does not protect an interest in

monitoring searches.”

02. Souter, Concurrence: “the right of an owner

to demand to see a copy of the warrant

before making way for police is undetermined

today.”

3. Pro and cons to showing the warrant:

a. Pro: might enlist their cooperation, protect from

property damage, and it could limit the scope of the

warrant, the person could simply go grab the gun.

b. Con: so as not to alert them to what they are looking

for, so they don’t destroy the evidence

VIII. Reasonableness

A. Execution of the warrant

1. The 4th amen. requires “reasonableness” in the execution of

the warrant.

2. The need for “force” balanced against the intrusion on

individual liberty.

3. Timing: more dangerous for police to execute a warrant at

night.

4. Warning: will give people a chance to collect themselves, will

depend on type of offense, knock and announce rule

5. The 4th amen. requires “knock and announce”

a. The purpose is to give the reasonable, innocent person

time to get to the door before they break it, to put on

some clothes

b. Banks: “The obligation gives way when officers have

reasonable suspicion that knocking and announcing

their presence, under the particular circumstances,

would be dangerous or futile, or…would inhibit the

effective investigation of the crime by, e.g. allowing the

destruction of evidence.” Souter, maj.

i. Totality of the circumstances: The reasonable

time given to ∆ to open the door will be

determined by the specific circumstances, i.e. are

they going there for cocaine or a grand piano?

ii. Limits on reasonableness:

01. the thing searched for

02. Law enforcement interest

03. Individual’s interest

a. His door

b. His dignity

6. Police actions in executing the warrant must be related to the

objectives of the authorized intrusion.

7. Can detain while the search is being conducted, for the officer’s

safety. The detainment is limited though (limited by

reasonableness?) e.g. think Mena, the case where the

handcuffed for 2-3 hrs. and questioned the girl about her

immigration status.

8. Wilson, Police actions in executing the warrant have to be

“related to the objectives of the authorized intrusion”. (police

brought in the media, & the presence of the 3rd parties was not

in aid of the execution of the warrant – opening up the Wilson’s

house to media scrutiny was outside the objectives of the

search)

9. Perp walks, the reasonableness of which is analyzed, under the

umbrella of 4th amen. seizures.

10. Exceptions to the warrant requirement

a. Exigent circumstances

b. Plain view

c. Automobiles

d. Arrests & searches incident to lawful arrest (SITLA)

e. Stop & frisk

i. These are seizures

f. Consent

i. All of these exceptions seem to be merging into

“reasonableness”

ii. These exceptions provide some limits that

arguably are not there if it is just

“reasonableness”

iii. Reasonableness with regard to the execution of

the warrant:

01. Analysis of reasonableness balancing

government interest against the

intrusiveness on the individual.

02. Another aspect of reasonableness:

a. Police conduct must be related to the

object of the search, no more, no less.

11. Exigent Circumstances

a. Hot pursuit of fleeing felon, destruction of evidence,

immediate aid, community caretaking, danger to officer

or third parties

i. The right to search is limited to the exigent

circumstance that prompted the search.

01. After the exigence ends, then the officer

needs to stop and get a warrant (or find

another exception)

02. Destruction of evidence: objective

opportunity that evidence of a crime or

contraband will be destroyed if police wait to

go get a warrant.

03. Community caretaking/aid: allow a

warrantless entry and search(to the extent

justified by that exigent circumstance

justifying the entry) when there is reasonable

evidence of an emergency need.

a. Brigham City v. Stuart: we do not

inquire into the officer’s subjective

intent, we do not care, so long as

there are objective indicators of the

need for help).

1. “an officer’s action is reasonable

under the 4th amen., regardless

of the individual officer’s state

of mind (includes inner motive

of officer) as long as the

circumstances, viewed

objectively, justify the action.

The officer’s subjective

motivation is irrelevant.”

b. Mincey, Stewart: Limitation: the exigency defines the

boundaries of the search: “A warrantless search must

be strictly circumscribed by the exigencies which justify

its initiation” (both physically and temporally)

Furthermore, the exigency must be objectively

reasonable.

c. Tests:

i. In Mincey: Balancing the government interest vs.

intrusion on individual

ii. In Welsh v. Wisconsin (guy driving drunk & walked

home): Balancing intrusion on him vs. the gravity

of the underlying offense.

d. Illinois v. McArthur (guy with drugs in house, wife tells

on him, officer watches him while he goes inside to get

cigarettes.)

i. The exigency would have justified an entry, the

step the officer took here while a warrant was

secured was reasonable.

ii. “Rather than employing a per se rule of

unreasonableness, we balance the privacy-related

and law enforcement concerns to determine if the

intrusion was reasonable.”

iii. Facts:

01. PC existed

02. Likelihood evidence would be destroyed

03. Intrusion was tailored and restrained

04. There were temporal limits on intrusion

05. Doorway is a public space, since they could

lawfully keep him outside, it follows they

could accompany him inside

06. Here it was a jailable offense and intrusion

less serious, making it different from welsh

iv. B/c exigency, destruction of the evidence, would

have justified an entry, the lesser step offier took

here while warrant was secured was reasonable

12. Plain View

a. Definition: An officer who has probable cause to believe

that an item is contraband or evidence of a crime may

seize it, without a warrant, if the object is in plain view

and the officer is operating lawfully from a place where

he has a right to be and can gain physical custody over

it.

i. This doctrine requires officers to operate from a

place where they lawfully had a right to be to

seize the object.

b. Arizona v. Hicks (moved the stereo) Scalia

i. The search was not related to the exigent

circumstance, it required additional justification.

ii. Moving the equipment (which exposed concealed

portions of the apt.’s contents) constituted an

independent “search” unrelated to the authorized

entry (i.e. outside the scope of the search for

weapons) and so constituted a new invasion of

privacy. The plain view exception does not give a

general license to just rummage around.

c. NY v. Class (looking for VIN # and found gun in car)

i. The officer was allowed to be in the car b/c of the

state statute requiring the VIN to be visible…

d. Horton Stevens

i. Key point of plain view: The scope of the search is

defined by the object of the search.

ii. Requirements for warrantless plain view seizure:

01. The officer lawfully arrived at the place from

which the evidence was viewed

02. The item must be in plain view and its

incriminating character must be immediately

apparent.

03. The officer must have a lawful right of access

to the object itself.

iii. The officer need not have inadvertently

discovered the evidence in order to invoke the

plain view doctrine (scope of search is already

adequately circumscribed by warrant or

exigency).

e. Automobiles

i. Carroll & Chambers = As a general matter, the

search of a car could be based solely on PC to

believe that the car contained evidence or

contraband, and did not require a warrant. This

included any and all integral parts of the car.

(such as the glove compartment and trunk).

ii. Chadwick & Sanders = Containers: the

automobile exception does not apply to

containers within the car. Gov. interest

outweighed by privacy interests.

iii. Ross: (had PC that person was selling drugs out of

trunk; searched closed brown paper bag in trunk):

01. The scope of a warrantless search of an

automobile is not defined by the nature of the

container in which the contraband is secreted

but rather by the object of the search and the

places in which there is probable cause to

believe that it may be found. This ruling

created a dichotomy b/w “container-specific”

probable cause (where Chadwick applied) and

“car-general” PC (in which case Ross applied).

iv. CA v. Acevedo , Blackmun (had PC re: brown paper

bag in trunk)

01. Ct. abandons distinction b/w containers found

during general search and during targeted

search (the privacy expectation and exigency

is not any different in either case).

02. Adopt a single a single standard (from Ross,

see standard above): search is circumscribed

by probable cause. The police may search

an automobile and the containers w/in it

where they have PC to believe

contraband or evidence is contained.

03. Scalia Concurrence: two 4th Amend. clauses

are separate, such that warrants are not

actually prescribed for searches and seizures.

Searches and seizures are governed by the

reasonableness standard. CL should define

reasonableness.

04. Note: although ct. overruled Sanders, it did

not overrule it did not overrule Chadwick

(footlocker), likely b/c it is a locked, personal

container.

a. I think: Chadwicki still applies where

PC only exists as to a container in the

car, then the container maybe held by

police but not searched, but then

again, it might only apply to

‘footlocker’ type containers, they can

be locked.

v. Acevedo: No warrant is required to search the car

or containers within it, so long as the officer has

PC to believe that there is evidence or contraband

in the vehicle. The object of the search limits the

scope of the search.

vi. Ross: “probable cause to believe that a container

placed in the trunk of a taxi contains contraband

or evidence does not justify a search of the entire

cab.” This is reaffirmed by Acevedo.

vii.String of pearls theory.

01. If you guess right in the first instance, you will

probly be able to string together some more

exceptions to search for what you want.

viii. Houghton, Scalia (PC to search car extends to

passenger’s purse?)

01. Rather than applying Acevedo, the ct. says

that the 4th Amen. inquiry into unreasonable

searches and seizures requires looking at:

a. Scalia’s Two-Step

1. Whether the action was

regarded as an unlawful

search or seizure under the

CL when the Amend. was

framed, or (alternatively, if

CL is inconclusive)

2. Evaluate the search and

seizure under traditional

standards of reasonableness

by balancing the competing

interests:

i. Intrusion on the

individual

ii. legitimate gov.

interests.

02. Acevedo is not limited to the driver’s

belongings. Individualized PC is not

necessary in this context (disting. searches of

the person). Hold: Police officers w/ PC to

search a car may inspect passengers’

belongings found in the car that are capable

of concealing the object of the search.

03. Balancing: there is a reduced privacy

expectation in cars and they are subject to

pervasive gov. regulation. Gov. int. is

substantial b/c passengers likely share a

common enterprise.

04. The automobile search exception does not

extend to containers attached to a person (at

least clothing pockets).

05. Mentioned by Prof but not in the text of the

case: Pringle, common enterprise with the

driver.

06. Dissent, Stevens, footnote 3: the court has

never used this two prong test before, wants

rule requiring a warrant or individualized PC

to search passenger belongings.

07. This rule has been extended to RVs, cars on

blocks, etc. Starts small, gets broader.

ix. The inventory exception: when an officer makes a

custodial arrest of an occupant, the police can

conduct an inventory search of the auto. Limited

by Gant.

01. Means: officers that make a custodial arrest

have more power. Provides an additional

incentive to arrest. Goin to impound car =

can make inventory search

B. Arrests

1. Custodial Arrests (note Scalia’s two-step in analyzing

“reasonableness”)

a. Custodial arrests require only probable cause. Unlike

searches, they do not also require exigent

circumstances to support warrantless action. [This

means, theoretically, privacy is valued greater than

liberty, which has obvious socioeconomic implications.]

b. *Modern statutes generally authorize arrest for

misdemeanors w/out a warrant where the offense is

committed in the officer’s presence (& for lim. crimes

such as DV outside the officers presence or where

certain exigencies exist, such as a fleeing suspect). For

felonies, generally they authorize warrantless arrests

based on probable cause.

c. *There must be a jud. determ. of whether arrest met PC

std. w/in 48 hours of arrest (no unreasonable delay).

McLaughlin.

d. *No warantless arrests in the home are permitted.

However, only an arrest warrant is req’d: an arrest

warrant founded on PC implicitly carries w/ it the limited

authority to enter a dwelling in which the suspect lives

when there is reason to believe the suspect is w/in.

(Note an arrest warrant cannot justify the search of the

home of someone other than the arrestee.)

e. An arrest occurs when a reasonable, innocent

person would not feel free to terminate the

encounter and go about his business. O’Connor in

Bostick.

f. Arrests made in public do not need a warrant, as long as

they are based on PC

i. Misdemeanors: PC to believe that crime has been

committed in officer’s presence, and that is the

person who did it.

ii. Felony: just needs to be based on PC.

g. U.S. v. Watson

i. Reaffirms fed. 4th amen. law

ii. “The ancient CL rule that a peace officer was

permitted to arrest without a warrant for a

misdemeanor or felony committed in his presence

as well as for a felony not committed in his

presence if there was a reasonable ground for

making that arrest.”

h. Atwater (seatbelt violation; arrest for minor criminal

offense requires warrant?) Souter

i. If an officer has PC to believe that an individual

has committed even a minor misdemeanor

offense in his presence, he may arrest the

offender w/out violating the 4th Amend. Court

conducts Scalia’s two step approach (from

Houghton):

ii. Souter conducts Scalia’s Two-Step Approach:

01. Would this arrest be allowed at CL?

02. If inconclusive balance intrusion on

individual vs. legit. gov. interests

03. =

a. Need for

1. This arrest would have been

allowed at CL.

2. Need for a bright line rule to

guide police conduct

(administrability) outweighs

Atwater’s liberty int.

iii. Ct. declines to create distinction b/w jailable and

non-jailable offenses.

iv. Puts discretion w/ police, no antecedent

justification required for arrests.

i. Whren, Saclia: A police officer’s motive for making a

traffic stop (and accompanying brief detention) does not

affect the constitutionality of the stop, so long as there

was probable cause to believe that the traffic violation

occurred. No subjective motive of officer. Except: Court

will inquire into the officer’s state of mind if the arrest

was conducted in an extraordinary manner unusually

harmful to an individual’s privacy or physical interest.

j. Steagold P.517

i. An arrest warrant will not validate the search of a

third party’s home. [can they still go in the home

and just not search for anything other than the

person they are supposed to arrest?]

k. Maryland v. Buie

i. When police go in to make an arrest, they may

make a protective sweep in order to identify

people who may be a threat to officer safety.

2. Searches incident to lawful arrest (SITLA)

a. Chimel v. CA (arrest warrant executed at home, subsq.

searched entire house w/out warrant) REACHING

PRINCIPLE.

i. When an arrest is made, it is reasonable for the

arresting officer to search the arrestee’s person

and the area w/in his immediate control –

construing that phrase to mean the area from w/in

which he might gain possession of a weapon or

destructible evidence.

01. This is justified by

a. the need for officer safety and

b. exigency (preservation of evidence).

ii. This is consistent w/ the rationale that the scope

of a search must be strictly tied to and justified by

the circumstances which rendered its initiation

permissible.

iii. Here, the search of the house was unreasonable

(rule prevents general rummaging).

iv. “reachable distance” is still good law, just reined

in by Gant, the issue is:

01. what is it tethered to?

a. Where the arrestee was at the time of

the arrest? Or

b. Where the arrestee was at the time of

the search?

b. The SITLA exception poses greater problems in car

cases.

c. US v. Robinson:

i. SITLAs do not depend on the gravity of the crime

or upon the officers subjective fear, and

ii. SITLA of person is absolute (always reasonable

where arrest is lawful).

iii. The right to arrest gives the officer the right to

frisk

iv. If the officer comes to believe, while patting down,

that there is contraband on the person, does not

limit the scope of the search.

d. MD v. Buie:

i. Officer may as a precautionary matter and

without probable cause or reasonable suspicion,

look in closets and other spaces immediately

adjoining the place of arrest from which an attack

could be immediately launched. (To look in

additional areas, there must be articulable

suspicion that the area swept harbors an

individual posing danger.) Ct. emphasized the

sweep may extend only to a cursory inspection of

spaces where a person may be found.

e. NY v. Belton:

i. When an officer has made a lawful custodial arrest

of the occupant of an automobile, he may, as a

contemporaneous incident of that arrest, search

the entire passenger compartment of that

automobile―including examining the contents of

any containers found there.

f. Thornton v. US

i. The Belton rule controls even when the officer

does not make contact until the person arrested

has left the vehicle (i.e. even if arrest is made

outside vehicle).

ii. Same concerns regarding safety and destruction

of evidence. The danger flows from the fact of the

arrest rather than the proximity or uncertainty

involved.

iii. Only need be a “recent occupant” for the car to

be subject to SITLA.

iv. Scalia concurrence: state int. is far less compelling

where there is no threat to safety or of evidence

loss (as here). Would limit Belton to where it is

reasonable to believe evidence relevant to the

crime of arrest might be found in the vehicle.

g. Gant, Stevens

i. “Under this broad reading of Belton, a vehicle

search would be authorized incident to every

arrest of a recent occupant notwithstanding that

in most cases the vehicle’s passenger

compartment will not be within the arrestee’s

reach at the time of the search. To read Belton as

authorizing a vehicle search incident to every

recent occupant’s arrest would thus untether the

rule from the jurisdictions underlying the Chimel

exception.”

ii. “A rule that gives police the power to conduct

such a search whenever an individual is caught

committing a traffic offense, when there is no

basis for believing evidence of the offense might

be found in the vehicle, creates a serious and

recurring threat to the privacy of countless

individuals.”

iii. Two limiting principles:

01. Officer safety

02. Evidence (protection from destruction)

iv. “Police may search a vehicle incident to a recent

occupant’s arrest only

01. if the arrestee is within reaching distance of

the passenger compartment at the time of

the search [interest in officer safety], or

02. it is reasonable to believe the vehicle

contains evidence of the offense of arrest

[interest in evidence].”

v. Gant reins in Belton, brings it back to Acevedo,

since SITLA restrained to (1) officer safety, and (2)

evidence; but this would hardly happen, b/c when

person is arrested they are placed in the cop car.

Limits to reachable distance, & limited evidence

to that evidence pertaining to the arrest, so it

limits pretextual searches. Gant strips Belton.

3. INVENTORY EXCEPTION (sort of a net that catches what is

missed in SITLA)

a. CO v. Bertine (inventory exception):

i. inventory procedures serve to protect an owner’s

property while it is in the custody of the police, to

insure against claims of lost, stolen, or vandalized

property, and to guard the police from danger.

b. Knowles v. Iowa (speeding stop, issued ticket and

searched; search incident to citation?)

i. While a concern for officer safety may justify a

minimal additional intrusion of ordering the driver

and passengers out of the car, neither of the twin

rationales of SITLA can justify a search incident to

a citation. The brevity of a traffic stop poses a

minimal threat.

ii. Note, however, that the discretionary arrest power

of officers allows an officer to circumvent this

limitation by arresting, searching, and then

rescinding/releasing if nothing is found.

c. Virginia v. Moore

i. Facts:

01. The officers arrest him for driving w/ a

suspended license. Under state law, they

should not have arrested him, under that

state law, it was not an arrestable offense.

02. In the process of arresting him, they found

evidence of cocaine.

ii. Issue: Whether the evidence obtained in this

arrest, b/c it violates the 4th amen. to the

Constitution?

iii. Answer: it does not violate the 4th amen.

Atwater: Can arrest on PC.

iv. What is the impact, that it is not a lawful arrest

under Virginia law.

01. Virginia does/did not apply any exclusionary

rule to uphold the more limited restriction on

arrests. Mapp only applies to Federal/4th

amen.

v. Scalia: the arrest perhaps was not lawful, but it

was constitutional, and there is no suppression

under Mapp. In Virginia, the remedy is sue the

cop, not exclusion.

d. Inventory exception only occurs when they are going to

impound the vehicle, which is expensive, so should

maybe be self-limiting.

4. Reasonableness

a. Increasingly privacy is not protected by the warrant and

probable cause requirements, but rather it is rooted in

the constitutional command that searches/seizures be

reasonable. It is a more contextual inquiry, balancing

the gov’t interest (law enforcement needs) against the

privacy intrusion. Reasonableness is used to define the

probable cause required.

b. Stop & Frisks

i. Terry v. Ohio – J. Warren

01. Facts:

a. two men have pattern of pacing and

looking in window, meet third man;

officer approached and, after getting a

mumbled response, patted down

suspects)

02. Quotes:

a. ** “Regardless of how effective the

[exclusionary] rule may be where

obtaining convictions is an important

objective of the police, it is powerless

to deter invasions of constitutionally

guaranteed rights where the police

either have no interest in prosecuting

or are willing to forgo successful

prosecution in the interest of serving

some other goal.”**

b. The officer ** “must be able to point

to specific and articulable facts

which, taken together w/ rational

inferences from those facts,

reasonably warrant that

intrusion” ** in light of the particular

circumstances. The facts must be

judged against an objective

standard: would the facts available

to the officer at the moment of the

search or seizure warrant a man of

reasonable caution in the belief that

the action taken was appropriate?

c. **“there must be a narrowly drawn

authority to permit a reasonable

search for weapons for the protection

of the police officer, where he has

reason to believe that he is dealing

with an armed and dangerous

individual, regardless of whether he

has probable cause to arrest the

individual for a crime. The officer

need not be absolutely certain that

the individual is armed; the issue is

whether a reasonably prudent man in

the circumstances would be

warranted in the belief that his safety

or that of others was in danger. And

in determining whether the officer

acted reasonably in such

circumstances, due weight must be

given, not to his inchoate and

unparticularized suspicion or “hunch,”

but to the specific reasonable

inferences which he is entitled to draw

from the facts in light of his

experience.”

1. DO NOT LOOK AT THE

SUBJECTIVE INTENT OF THE

OFFICER

03. A “stop” amounts to a “seizure” (restrains

freedom to walk away), and a “frisk” amounts

to a “search.” Nonetheless, this entire rubric

of police conduct – necessarily swift action

predicated upon on-the-spot observations of

the officer on the beat (proactive policing) - is

not subject to the warrant requirement.

Instead, it is subject to the proscription

against “unreasonable” searches and

seizures. This requires balancing the gov. int.

against the intrusion. [1st Doctrine to

dispense w/ both the warrant requirement

and PC requirement.]

04. Balancing: safety of officers (and others)

justifies a limited protective search. Must be

circumscribed by the exigencies which justify

its initiation. Thus it must be limited to that

which is necessary for the discovery of

weapons which might be used to harm the

officer or others nearby, and may realistically

characterized as something less than a full

search.

05. In determining whether the search and

seizure were unreasonable must look at

whether

a. the officer’s action was justified at its

inception, and

b. it was reasonably related in scope to

the circumstances which justified the

interference in the first place.

06. Holding :

a. Where an officer reasonably concludes

in light of his experience

b. That criminal activity may presently

be afoot and

c. Persons w/ whom he is dealing may be

armed and presently dangerous

d. He is entitled, for the protection of

himself and others in the area,

e. To conduct a carefully limited search

of the outer clothing in an attempt to

discover weapons which might be

used to assault him.

f. [Thought they were making a specific,

well-delineated exception to Katz]

07. Won’t individual int. always be trivialized

where balanced against the gov. int.?

08. Terry has been expanded beyond its

rationale, i.e. beyond violent crimes or

instances where officer safety could be

jeopardized, e.g. drug couriers and even

property. Implicates serious problems of

racial discrimination and profiling. Supports

police discretion.

09. Note: still must pay careful attention to

scope, to Terry’s rationales, and to balancing:

when investigative detentions escalate

beyond a Terry stop (i.e. beyond a level of

intrusiveness – either physical, temporal,

locational, etc. – warranted by Terry), they

will require greater justification than

reasonable suspicion (i.e. PC). May look at

police diligence.

10. The court did not think that they would open

the door to lawless or unconstitutional police

behavior. The dissent disagreed.

11. Dissent (Douglas)

a. He believes that PC is required, and

that reasonableness is within this. He

thinks it is outrageous to have a lower

than PC. There will be no antecedent

justification, no review by a neutral

third party. This gives officers more

power to interfere in personal privacy,

more than a magistrate would have.

12. Concur (Harlan)

a. The right to make this kind of seizure

arises only from the circumstances

forcing the encounter. He is

concerned that once the force

encounter justifies, we must give

officer’s the right to frisk for their own

safety.

13. This rule can grow when police are just

interested in investigation, or when they

don’t have PC.

14. Court that reasonableness was a tiny step:

Can default to reasonableness only in the

case of violent crime that is presently afoot.

a. However, the problem is, Terry

progency did not stay limited to

crimes that were dangerous, also did

not stay limited to preventing crime.

ii. Robinson

01. Officer felt a package, not concerned that it

was a weapon. Reached in anyway, turned

into being a cig. Carton containing heroin.

The search did not have to do with the arrest.

02. Robinson still good law, but for how long?

03. Mincey is still good law if have the time, go

get the warrant.

iii. Professor:

01. Prof: it is one thing to let go of the warrant

requirement, but it is quite another to

dispense w/PC. But that is what Terry does.

02. Scale:

a. Innocuous conduct suspicious

conduct PC BRD crim conduct

03. What Terry establishes the police’s right to

interfere in our personal conduct based on

reasonable suspicion.

04. The more we slide away from PC, the less

protection for innocent conduct.

05. Also, reasonableness will be become

subjectivized

06. Reasonableness will only kick in, under terry,

only when encounters are forced.

iv. Standard of “Reasonable Suspicion”

01. Must look at the totality of the circumstances

to determine whether sufficient indicia of

reliability were present. Reasonable

suspicion does not require the same quantity

or content of information as PC, nor does it

need to be as reliable.

a. FL v. JL (anonymous tip alone

sufficient to justify stop and frisk?),

Ginsberg

1. Anon. tip alone seldom

demonstrates the informant’s

basis of knowledge or veracity.

There are situations where,

suitably corroborated, an

anonymous tip will have

sufficient indicia of reliability to

provide reasonable suspicion.

But a physical description is not

enough; the tip must

demonstrate knowledge of

criminal activity. (maybe think

Draper, guy with trenchcoat)

2. “Such an exception would

enable any person seeking to

harass another to set it motion

an intrusive, embarrassing

police search of the targeted

person simply by placing an

anonymous call falsely reporting

the target’s unlawful carriage of

a gun…The 4th amen. is not so

easily satisfied.”

b. Illinois v. Wardlow (patrol through

neighborhood, fled on sight, stop and

frisk), Rehnquist

1. Officer may, consistent w/ 4th,

conduct a brief investigatory

stop when the officer has

reasonable, articulable suspicion

that criminal activity is afoot.

Reasonable suspicion is less

demanding than a probable

cause and requires considerably

less than a preponderance, the

officer must be able to articulate

more than an inchoate and

unparticularized suspicion or

hunch of criminal activity.

2. Characteristics of the location

are relevant but alone cannot

justify. Evasive behavior such

as headlong flight is also a

factor (disting. mere refusal to

cooperate). Inferences about

human behavior permitted. RS

is less than PC but more than a

hunch. Here, high crime area

plus unprovoked flight satisfies

the standard.

3. Dissent/concurrence, Stevens:

i. This fleeing away could be

entirely reasonable

conduct, lots of reasons,

avoiding bullets, etc.

4. Professor: What Wardlow does

i. If it is an arrest, it needs to

be based on PC, but a stop

can be based on less, on

reasonable suspicion, and

in Wardlow they say:

Suspicious conduct can be

determined through the

eyes of the officer, this is

based on a less strict std.

than the one required for a

warrant (PC).

c. *Note: Although individualized

suspicion is necessary, there is no

suspicion required of a specific crime.

v. Terry

01. Terry was the right to prevent armed violent

crime, but, it did not stay that way. Terry’s

progency extended it, especially broadened

into drug crimes.

02. Drug courier profile

a. When does a Terry stop turn into an

arrest. B/c, an arrest still needs PC,

but Terry stops need only reasonable

suspicion.

1. No bright line rule

i. Factors:ii. Brevity of the encounter

iii. The intrusiveness of the

stop

iv. Whether police were

behaving diligently

b. It is common now to couple a Terry

stop with dogs, since that is not a

search, it does not require warrant w/

PC, can use other means in addition to

the Terry stop in establishing PC.

03. Pretextual investigations

a. There is no pretext doctrine in 4th

amen. law enforcement. The

Supreme Court has consistently said

that not going to look at the motives,

just need objective PC.

IX. Police discretion and profiling

A. Racial Profiling:

1. p. 594 “occurs whenever a law enforcement officer questions,

stops, arrests, searches, or otherwise investigates a person b/c

the officer believes that members of that person’s racial or

ethnic group are more likely than the population at large to

commit the sort of crime the officer is investigating.”

a. Profiling: just drop out the ‘racial’ part of the definition.

B. Race as an element of suspicion is at the heart of the debate

concerning racial profiling.

1. As opposed to using race as a characteristic of a specific crime

a. e.g. “The burglar was black”

2. p.597 U.S. Dept. of Justice

a. But, what about Brown v. City of Oneonta?

i. Under the definition, then no, not racial profiling.

(this was the case, where vic. said that a young

black man had robbed her, so they checked out

every single black male student at the local

college, then for every nonwhite male.)

01. This was a questionable use of the police

power.

C. Racial profiling definition from the Portland police: the

inappropriate use of relying on race to make a stop?

D. Exclusion of evidence?

1. Can’t prove improper motive, b/c don’t inquire into the motives

of officers.

2. Suppression of evidence for unreasonable searches?

a. Second principle of Gant: you can keep and use the

evidence of the arrest offense, but nothing else.

i. If you pull people over for a traffic offense, but

other items obtained by search will be

suppressed.

01. This has the potential to limit inappropriate

use of profiling in traffic stops

a. Tremendous potential to limit

misconduct, but the court has not

stated where they stand on this issue.

E. Equal Protection

1. p.599

a. subjective intentions play no role in PC-4th amen.

analysis. This is a subject for the Equal Protection

Clause.

i. Court says that we will not go here in Whren.

2. People v. Kail

a. Prostitute and bike bell

F. Chicago v. Morales

1. Statute was void for vagueness (Due Process)

a. Two independent grounds for void for vagueness:

i. Lack of notice;

ii. When they authorize arbitrary and potentially

discriminatory enforcement

X. Special Needs (regulatory or administrative searches; roadblocks)

A. *The ct. has used a similar int. balancing approach (reasonableness)

to uphold administrative inspections, regulatory searches, and other

kinds of gov. action involving “special needs” beyond those found in

the typical law enforcement context.

B. *Ct. had by now decoupled the two clauses of the 4th Amend.

Danger that this doctrine will be used as a pretext for general

rummaging which would vitiate the 4th Amend., which is designed to

reduce police/government discretion.

C. *Intrusiveness depends not just on the type of search but also how

it is executed (level of restraint, etc.). The court is looking for

limiting principles.

D. > Reasonableness standard has been applied to e.g., principal

searching purse of student; P.O.’s search of probationer’s home;

employer’s work-related search of employee’s desk and files.

E. Scale: Warrant+PC PC reasonable suspicion reasonableness

F. Roadblocks

1. Indianapolis v. Edmond, O’Connor (vehicle checkpoint for drug

interdiction; each checkpoint stopped predetermined number of

vehicles; uniform standards until particularized suspicion

develops; no discretion to stop out of sequence, duration of

stop is couple of minutes tops)

a. The exception for individualized suspicion is narrow.

Conducting suspicionless checkpoints cannot be

justified by an int. in ordinary criminal wrongdoing.

Exceptions have only been recognized where in special

contexts (health/safety/immigration) where the interest

and the practice were closely related.

b. Checkpoint programs can never be justified by a

general int. in crime control (i.e. detecting evidence of

ordinary criminal wrongdoing, as here.

c. **(on test) Some exigencies could permit an exception,

e.g. emergency such as an imminent terrorist attack or

a fugitive likely to flee by a particular route.

i. ”Of course, there are circumstances that may

justify a law enforcement checkpoint where the

primary purpose would otherwise, but for some

emergency, relate to ordinary crime control. For

example, appropriately tailored roadblock to

thwart an imminent terrorist attack or to catch a

dangerous criminal who is likely to flee by way of

a particular route. The exigencies created by

these scenarios are far removed from the

circumstances under which authorities might

simply stop cars as a matter of course.”

d. Look to primary purpose to sift abusive gov. conduct

from that which is lawful. Balancing.

e. There is no pretext doctrine, do not look into the

subjective intent of the officers, but programmatic

purpose may be looked into.

f. “We decline to suspend the usual requirement of

individualized suspicion where the police seek to

employ a checkpoint primarily for the ordinary

enterprise of investigating crimes. We cannot sanction

stops justified only by the generalized and ever-present

possibility that interrogation and inspection may reveal

that any given motorist has committed some crime.”

G. Illinois v. Lidster (hwy checkpoint to ask about recent hit and run,

used to issue a DUI) (used for other than general crime control

purposes), Breyer

1. Reasonableness balancing: look at context –

a. Gravity of public concerns served by the seizure

i. Here, serious crime investigation.

b. Degree to which the seizure advances the public int.

i. Stop must be appropriately tailored to advance

the pub. int.

c. Severity of interference w/ individual liberty

i. Look at both subjective and objective components

of intrusion.

2. Is this case distinguishable from a general int. in crime control?

3. Note: the gov. has broad authority to conduct border searches.

H. Non-Police Searches

1. The court has found that special needs exist in the public

school context, so that searches are only subjected to a

reasonableness standard, under all the circumstances. Ct.

upheld even a suspicionless drug testing of school athletes,

taking into account: the decreased expectation of privacy, the

relative unobtrusiveness of the search, and the severity of the

need met. (Suspicionless drug testing is not always upheld –

the special need must be substantial.)

2. Ferguson v. Charleston (pub. hospital, urine tests for maternity

patients suspected of using cocaine, adopted policy of

cooperating/reporting for criminal prosecution, policy made no

reference to a change in the prenatal care of patients/newborns

based on info), Stevens

a. Here the urine test was a “search.” There was no PC,

no RS, and no consent. To determine whether it “fits

w/in that closely guarded category of permissible

suspicionless searches,” must employ balancing of the

intrusion against the asserted special needs.

b. Disting. cases where drug tests upheld for purposes of:

employees involved in train accidents; customs service

employees seeking sensitive positions, h.s. athletes.

Conversely, not upheld where done for elective state

office positions.

c. Here there is a greater expectation of privacy, a greater

intrusion (dissemination to 3rd party), and law

enforcement is the primary (immediate) purpose (not

int. in welfare of patients or newborns). Therefore, no

special needs justifying suspicionless search.

d. The involvement of the police and prosecution at every

step of this program makes the programmatic purpose

look like it is for general crime control.

e. “While state hospital employees, like other citizens,

may have a duty to provide the police with evidence of

criminal conduct that they inadvertently acquire in the

course of routine treatment, when they undertake to

obtain such evidence from their patients for the specific

purpose of incriminating those patients, they have a

special obligation to make sure that the patients are

fully informed about their constitutional rights, as

standards of knowing waiver requirement.”

f. Kennedy, concurrence: The search is unconstitutional

b/c it was intended to be used for law enforcement

purposes. There was police involvement at all stages.

g. Dissent, Scalia:

i. They knew it was a urine test.

ii. They consented, that was enough.

iii. Moreover, the only thing the policy did in terms of

law enforcement, was anticipate what would have

to happen if Drs. found evidence of cocaine. The

state has a reporting requirement, the Drs. would

have had to report it anyway.

iv. Alternatively, the presence of law enforcement

does not render the special-needs doctrine

inapplicable.

01. Majority’s response: Yes, there is the

reporting requirement, but after the report,

there is a lot of police discretion. Here, under

the policy, there is arrest and charging when

cocaine is found. Also, every step of this was

basically designed around law enforcement,

around arrest and prosecution.

a. “the immediate objective of the

searches was to generate evidence for

law enforcement purposes”

3. Businesses : various admin searches of closely regulated

businesses have been upheld as “reasonable” under the 4th

Amend. – w/out PC or warrants.

a. Reasonableness in this context requires:

i. a substantial gov. int. informing the regulatory

scheme,

ii. warrantless inspections must be necessary to

further the scheme, and

iii. the inspection program must provide an adequate

substitute for a warrant (inform proprietors and

lim. the scope).

XI. CONSENT SEARCHES

A. *Consent eliminates all 4th Amend. protection; law enforcement

needs no justification.

B. In order for the consent to be effective, it must be voluntary.

1. What does “voluntary” mean?

a. There are a number of possible meanings:

i. Willing act

ii. Meaningful choice

iii. Done in the absence of coercion***(Our 4th & 5th

amendment law embraces this definition)

01. Confession law (5th Amendment)

02. The kind of coercion we are talking about is

coercion by the government, not actors that

the government cannot control (external

circumstances)

a. Does all explicit display of

force=coercion

1. Do people confess or comply

because of a display of force? Is wearing a badge a display of

force?

b. The test for voluntariness is a "totality of all the

circumstances" (Page 673) Shneckloth v. Bustamonte,

Stewart

i. Includes evidence of the accused and the

circumstances of the interrogation

01. Example: Biderman's Chart of Coercion

a. Factors of Coercion:

1. Isolation

2. Monopolization of perception:

eliminates all other distractions

3. Occasional indulgences

4. Devaluing the individual:

individual is dependent on the

interrogator for their freedom

5. Humiliation

6. Threats

7. Etc…

c. Voluntariness is a question of fact to be viewed in the

totality of all the circumstances

C. Schneckloth v. Bustamonte

1. Before the search is there any probable cause that crime may

be afoot?

a. Doesn't matter, the officer had already obtained

consent!

i. Is asking consent an extension of the mere

encounter rule?

01. Yes, if the person on the street says no, then

the officer will have to ask someone else or

continue to observe.

02. But does a refusal add to probable cause?

2. Governmental interest vs. individual

a. Governmental interest: government has a strong

interest for people to consent

i. Argument is that the innocent will comply and feel

safer

3. D contends that because the burden of proof is on the gov't;

and that the gov't should have to prove that they advised the

individual of their right to consent.

a. D says it can't be voluntary unless he had knowledge of

the right to refuse

4. Individuals should be aware of their rights

a. Does this reserve protection for the educated and the

wealthy?

5. Miranda?

a. Miranda was meant to apply to situations in which are

inherently coercive

b. This is not an inherently coercive situation!

6. Waiver (671-672) (Consent to a search is not a waiver, waiver

only applies to 5th amen., right to counsel and fair trial aspects,

not to 4th amen., there ‘the relinquishment of a known right’ is

not applicable here no need to ‘know’ of the right to refuse

consent)

a. D claims that to establish waiver the police must show

an intentional abandonment of a known right.

i. How can you abandon this right, if you didn't

know it?!

b. Waiver does not apply to 4th Amendment

searches! These are rights that are extended to secure

a fair trial.

i. 4th Amendment is meant to protect privacy from

arbitrary intrusion

7. Dissent (Marshall)

D. Ohio v. Robinette

1. What is the theory of coercion raised here by the D?

a. D didn't know that he was free to leave (terminate the

encounter) unless he gave consent.

2. Police do not need to inform the accused that they are free to

go before they ask for consent to search.

3. Is this a seizure? Should Miranda be read? We are close to this

line between search and seizure.

o - The touchstone of the 4th Amend. is reasonableness, which is

determined in objective terms by the totality of the

circumstances. Applied voluntariness standard from

Schneckloth. There is no duty to inform detainees that they

are free to go, just one factor.

E. Schneckloth v. Bustamonte (consent to car search, found stolen

checks)

1. “Voluntary consent” does not require a ‘knowing’ choice (i.e.

need not be informed of rt. to refuse and subjective knowledge

of rt. is not required). No duty to inform.

2. Inquiry looks at whether it is an essentially free and

unconstrained choice or whether his will was overborne (by

duress or coercion). It is a question of fact to be

determined from the totality of the circumstances

(knowledge is just one factor, as well as any subtly coercive

police questions, and possibly vulnerable state of the

individual).

3. There are competing concerns here b/w the importance of

consent searches to law enforcement and the danger of

coercion. (Harlan’s balancing from White.)

4. The court distinguishes the fair trial context (which requires a

knowing and intelligent waiver) b/c it says the 4th Amend. exists

to protect privacy rather than a fair trial [although isn’t there an

obvious connection?]. It also distinguishes the Miranda context

of custodial interrogations, which is inherently coercive.

5. Dissent, Marshall: argues duty to inform is not impractical in

this ‘informal’ context and would not undermine law

enforcement (which is in fact true). Also note socioeconomic

implications.

F. 3 rd Party Consent Doctrine : holds that police may be permitted to

search based on someone other than the suspect provided that the

3rd person has common authority over the area searched. This

includes consent of a 3rd party whom the police reasonably believed

had common authority over the premises, even if such authority

didn’t exist. Police need not be correct to be reasonable, which is

all that is demanded.

1. Georgia v. Randolph

a. Facts:

i. The wife consented to a search of the house, but

the husband objected to the search.

ii. The officer asked the husband to search the

house. He says no. The officer then asks the

wife, and the wife says yes, and leads him to the

husband’s bedroom, where the drugs are.

b. “We hold that, in the circumstances here at issue, a

physically present co-occupant’s stated refusal to

permit entry prevails, rendering the warrantless search

unreasonable and invalid as to him.”

c. “if a potential ∆ with self-interest in objecting is in fact

at the door and objects, the co-tenant’s permission does

not suffice for a reasonable search, whereas the

potential objector, nearby but not invited to take part in

the threshold colloquy, loses out”

d. Remember Matlock:

i. “the consent of one who possesses common

authority over premises or effects is valid as

against the absent, nonconsenting person with

whom that authority is shared”

01. Me: I think still good, except for the caveat

that now, if the other co-occupant is present

and refuses consent, then the consent of the

one co-occupant is not good enough.

e. Dissent:

i. “The very predicate giving rise to the question in

cases of shared information, papers, containers,

or places is that privacy has been shared with

another. Our common social expectations may

well be that the other person will not, in turn,

share what we have shared with them with

another-including the police-but that is the risk we

take in sharing…”

01. this is similar to U.S. v. White, the

wiretapping with the false friend. We take

the risk by sharing our stuff, that they will

share the stuff with others.

f. “The normal 4th amen. rule is that items discovered in

plain view are admissible if the officers were

legitimately on the premises; if the entry and search

were reasonable as to Mrs. Randolph, based on her

consent, it is not clear why the cocaine straw should not

be admissible as to Mr. Randolph, as discovered in plain

view during legitimate search as to Mrs. Randolph”

i. saying that most of the time, in order to get the

evidence to apply to the other occupant, they

would use another exception to the warrant

requirement.

g. Note: Consent is the last of the exceptions to the

warrant requirement.

G. EXCEPTIONS TO EXCLUSION

o Rights depend on remedies. If no adverse consequences flow

from the violation of a const. right, gov. officials will violate

the right as often as they wish. And if no relief flows to the

victim of a const. violation, victims will not press their claims

in court; the rt. will be unenforced.

o Reasons/Purpose of Exclusion:

deterrence of police misconduct;

judicial integrity (reflection on judiciary) (an affront to

judicial integrity when courts use tainted evidence);

no other effective remedy.

o *Exceptions to exclusion:

1) Good Faith (objective) Reliance on a subseq. invalid

warrant;

2) Standing;

3) Fruit of the Poisonous Tree (pay attn. to scope: FOPT

extends scope of exclusion, but where FOPT ends,

exclusion is limited, i.e. the limits to FOPT are

exceptions to exclusion);

limits on exclusion

attenuation

inevitable discovery

independent source

4) Impeachment.

1. Good Faith reliance on a warrant

a. US v. Leon, White (issue: impose excl. where officers

acted in reasonable reliance on defective warrant?)

i. The 4th Amend. doesn’t compel exclusion; it is a

judicially created remedy designed to safeguard

the right through its deterrent effect.

ii. Exclusion is a separate inquiry from the violation,

and requires a balancing of the costs and benefits.

Costs: impedes truth finding (trustworthy tangible

evidence obtained in reliance and neutral

magistrate), reduces convictions of the guilty.

Basic concepts of CJ would be offended if

exclusion applied where officers i) acted in good

faith, or ii) the transgression are minor. Benefits:

the magnitude of the benefit conferred on the ∆

(this is a shift, before, it was the reasonable

innocent person).

iii. The exclusionary rule is designed to deter police

misconduct, rather than to punish the errors of

judges and magistrates.

01. Deterrence will not be effective if the

evidence was gathered negligently.

iv. Great deference to magistrate’s determination is

warranted.

v.

vi. The application of exclusion is only warranted

where it will have a deterrent effect (i.e. where

there’s police misconduct and not simply

magistrate error). Where police conduct is

objectively reasonable and w/in the scope of the

warrant, exclusion is not warranted.

vii.“The officer’s reliance on the magistrate’s PC

determination and technical sufficiency of the

warrant must be objectively reasonable,”

01. Limits (where exclusion should still apply):

a. Knowing or reckless falsity of

affidavits

b. Magistrate rubber stamping (lack of

neutrality)—the magistrate wholly

abandoned his role

c. Where warrant was issued w/out PC

(warrant so lacking in indicia of PC as

to render official belief in its existence

unreasonable)

d. Warrant is facially deficient (fails to

particularize)

1. e.g. warrant without containing

an address

viii. Dissent, Brennan: notes that admitting illegally

obtained evidence is akin to (or an extension of)

the initial violation.

ix. Note: Leon has applied to erroneous arrest

warrants. It has not been expanded to

warrantless searches, however, or to errors by

police officers themselves (at least where not

objectively reasonable.

x. Minor transgression doctrine:

01. “When law enforcement officers have acted

in objective good faith or their transgressions

have been minor, the magnitude of the

benefit conferred on such guilty ∆s offends

basic concepts of the crim.just. system.”

xi. Notes:

01. no suppression in a grand jury hearing. The

grand jury gets to hear all the evidence, even

if its tainted.

02. No suppression in habeas corpus litigation

03. No suppression in civil tax proceedings

04. No suppression where the accused lacks 4th

amendment standing

05. No suppression of FOPT

06. No suppression if the evidence is attenuated

or has an independent source

07. Suppressed evidence may be used to

impeach a witness

b. Herring, Roberts

i. Facts:

01. Police officer wants to arrest this guy, calls

around to see if there is an outstanding

warrant on him, due to negligent book-

keeping.

ii. Good-faith reliance on an arrest warrant, so the

evidence is not excluded.

iii. “If the police had been shown to be reckless in

maintaining a warrant system…exclusion would

be justified…In a case where systematic errors

were demonstrated, it might be reckless for

officers to rely on an unreliable warrant system”

iv. Reasoning: this is not a recurrent, systemic

problem, this is just an isolated incidence.

v. Ginsberg dissent:

01. “The rule also serves other important

purposes: it enables the judiciary to avoid the

taint of partnership in official lawlessness,

and it assures the people–all potential victims

of unlawful government conduct–that the

government would not profit from its lawless

behavior, thus minimizing the risk of seriously

undermining popular trust in government.”

a. So, the other important functions of

the exclusionary rule:

1. Judicial integrity.

vi. Cost benefit analysis of exclusion:

01. Cost: ∆ gets to walk away from the charges

02. Benefit: takes ∆ off the street, prevents

crime, deterrence.

2. STANDING EXCEPTION

a. No suppression to third parties as far as the evidence

pertains to them.

b. The party who seeks suppression of evidence must have

had their 4th amen. interest violated by police

misconduct.

c. > Rakas v. Illinois, Rehnquist (who can invoke

exclusion?)

i. - A defendant can seek to exclude evidence based

on an illegal search only if the search infringed his

own reasonable expectation of privacy (not

someone else’s). This meant there was no

“standing” where the search was of a 3rd person’s

property.

d. > MN v. Carter, Rehnquist (cop investigating informants

tip, sees bagging operation through apt. window, stops

car when two men leave, return to search apt.)

i. In order to claim the protection of the 4th Amend.,

a defendant must demonstrate that he personally

has an expectation of privacy in the place

searched, and his expectation is reasonable.

ii. In some circumstances a person may have legit

expectation of privacy in the house of someone

else, (e.g. overnight guest in MN v. Olson).

iii. This does not extend to anyone legitimately on

the premises (Jones v. US).

iv. Here, they are merely transient guests making an

impersonal transaction:

01. Factors : (commercial nature, short period of

time, no previous connection b/w people;

fleeting and insubstantial).

v. Scalia, concurrence: only a person whom has

made the house his home is entitled to 4th amen.

protection.

vi. Kennedy concurrence: social expectation controls.

Almost all social guests have a legit expectation of

privacy (five members of the court agree w/ this).

vii.Breyer concurrence: concluded that there wasn’t

a 4th Amend. “search.” The officers actions were

analogous to the airplane cases, in that he was

standing outside the curtilage of the home, where

many normal passersby had a clear vantage,

when he observed the cocaine bagging (despite

partly drawn blinds). Thus, there was no

reasonable expectation of privacy.

viii. Ginsberg, dissent: all social guests should

share the host’s shelter against unreasonable

S&S. These were social guests.

e. 4th Amend analysis:

i. search/seizure? if yes, then

ii. warrant? if no, then

iii. exceptions? if no, then

iv. reasonableness? if no, then

v. exclusion? if yes, then

vi. exception to exclusion?

f. *Note: police can abuse the standing exception b/c if

police aren’t charging the occupiers (but are obtaining

info against another), then there’s no way to challenge

the police conduct.

3. FRUIT OF THE POISONOUS TREE

a. *Exceptions to FOPT:

i. independent source;

ii. inevitable discovery;

iii. attenuation.

b. “The exclusionary rule prohibits introduction into

evidence of tangible materials seized during an unlawful

search, and of testimony concerning knowledge

acquired during an unlawful search. Beyond that, the

exclusionary rule also prohibits the introduction of

derivative evidence, both tangible and testimonial, that

is the product of the primary evidence, or that is

otherwise acquired as an indirect result of the unlawful

search, up to the point at which the connection with the

unlawful search becomes “so attenuated as to dissipate

the taint.” Murray (Scalia).

i. Derivative evidence: evidence that leads to other

evidence, e.g. a diary that leads to other

evidence.

ii. J. Holmes:

01. The point of the exclusion rule is not just that

the evidence is not used at trial, it is that

evidence is not used at all. However, if the

gov. would have found out about it anyway,

then can use it, want to prevent the gov. from

gaining from its wrongdoing, but do not want

to put them in a worse position than would be

in but for the wrongdoing.

c. > Wong Sun Brennan (went to laundromat based solely

on snitch; the suspect (Toy) fled into house, cops broke

down door to pursue and Toy immediately snitched on

another (Yee), whose house the agent’s then entered to

make arrest (found heroin); immediate interrogation

informs on Wong Sun, who is arrested and apt.

searched; interrogation of all three a few days later

resulted in confessions; arrest was illegal for lack of PC;

evidence is the fruit of a poisonous tree?)

i. The original informer had no indicia of reliability,

and his info was insufficiently particular or

specific. B/c the officer did not sufficiently identify

himself at the laundromat, Toy’s mere flight did

not corroborate the info (ambiguous), and so

there was no PC.

ii. Although exclusion extends to the indirect (verbal)

as well as direct (physical) products of an illegal

invasion, the knowledge gained from them may

be proved by independent sources. Furthermore,

the connection b/w the lawless conduct of the

police and the discovery of the challenged

evidence may become ‘so attenuated as to

dissipate the taint.’

iii. Ask whether the evidence at issue has been come

at by exploitation of the primary illegality or

instead by means sufficiently distinguishable to

be purged of the primary taint.

iv. Here, the verbal evidence derives so immediately

from an unlawful entry and unauthorized arrest

that it is an illegal fruit (no intervening act of free

will). Thus Toy’s statements must be excluded.

Furthermore, the drugs that were obtained (from

Yee) as a result of his statements must also be

excluded because they were come at by

exploitation of the illegality. His later confession,

although likely not a fruit, is insufficient w/out

extrinsic corroboration.

v. Wong Sun’s confession, made after being

released, was not a fruit b/c the connection b/w

the arrest and the statement had become so

attenuated to dissipate the taint. Furthermore,

Yee’s drugs are admissible against Wong Sun b/c

he has no standing to challenge them.

vi. Confessions: confessions require corroborating

evidence.

d. *The basic concept underlying FOPT is causation. But-

for cause has two correlates: independent source and

inevitable discovery. Proximate cause has one:

attenuation.

e. Hudson v. Michigan (Scalia)

i. Attenuation: “attenuation can occur, of course,

when the causal connection is remote.

Attenuation also occurs when, even given a direct

causal connection, the interest protected by the

constitutional guarantee that has been violated

would not be served by suppression of the

evidence obtained”

01. So, now, “attenuation” not only includes

“remoteness” but also a balancing test.

f. > US v. Ceccolini (testimony four months after search):

sufficiently attenuated to dissipate the taint – the

degree of free will necessary to dissipate the taint will

very likely be found more often in the case of live-

witness testimony than other kinds of evidence.

g. > Murray v. US Scalia (informants + surveillance; lawful

seizure of truck; subsq. warrantless entry into

warehouse; applied for warrant w/out revealing entry;

seizure of drugs from warehouse)

i. Independent Source: acts to balance int. by

putting police in the same (not worse) position

than they would have been had the illegal

search/seizure not taken place.

ii. Ind. source covers both cases where a separate

piece of evidence was learned by other means

and cases where the same evidence was acquired

from an independent source (it need not be

discovered for the first time independently).

iii. The warrant search here was independent of the

illegal warrantless search (the officers did not use

unlawfully obtained info to secure warrant – had

ind. PC). Although this would not necessarily be

true if the agents sought the warrant only b/c of

what they saw during the illegal search.

h. Note: inevitable discovery looks at whether the

evidence hypothetically would have been discovered

even if the taint had not occurred. (E.g. illegal

confession, found body case.)

i. Note also: ind. source and inevitable discovery apply to

both 4th and 6th, but not Miranda.

H. Impeachment

1. Havens: Evidence obtained in violation of the 4th Am. can be

used to impeach statements made by a testifying defendant.

a. The substance of the cross-examination must have been

reasonably suggested by the defendant’s direct

examination.

2. The Havens rule applies only to defendants. Third parties have

more to lose from perjury and will be deterred.

XII. The 5th amen. privilege against self-incrimination

A. 5th amen.: No person shall be compelled in any criminal case to be

a witness against himself.

B. English roots in the “star chamber” to protect accused against the

“cruel trilemma” (confess, lie, silence contempt)

C. Privilege & Immunity

1. Contours:

a. Testimonial

i. Testimonial

01. Spoken word

02. Does the question as the ∆ to speak his mind?

Goes to the Contents of the Mind, cruel

trilemma.

a. Routine booking questions ok, Muniz,

but they can’t go too far.

03. Acts of production could be testimonial

a. If the existence of, possession of, and

production of are incriminating, then

is it testimonial? (all you have to

know for the test)

1. Things like subpoena duces

tecum:

i. Is it testimonial?

ii. Does the answer put the

witness in the cruel

trilemma?

iii. Does the question ask the

witness to speak his mind?

ii. Not Testimonial (e.g. blood tests)

01. Physical evidence

02. Demonstrative evidence

a. E.g. being made to speak certain

words, a lineup, etc.

b. Incriminating

i. Sometimes it is just a civil sanction, which is not

enough. Sometimes civil sanction is enough. Not

going to ask about this.

ii. Not if SOL has run

iii. Not if prosecution comes from foreign gov.

iv. Not if witness has already been convicted and

appeals have been exhausted.

v. Not if witness has already pled guilty and been

sentenced

vi. Not if sufficient immunity has been granted

c. Compulsion

i. E.g.

01. Subpoena

02. Contempt of court

03. Police station interrogation

04. Requiring state employees to give up 5th.

05. Requiring those receiving gov. Ks to give up

5th.

06. Prosecution commenting on silence/asserting

5th = compulsion

D. This is a privilege, not a right. A privilege can be taken away by the

gov., in this case by a grant of sufficient immunity.

E. The privilege does not apply if there will be no prosecution, e.g.

statute of limitations has run, grant of immunity, etc.

F. Real risk of prosecution, not a fanciful risk.

G. Confessions require extrinsic corroboration, b/c inherently

unreliable.

H. Testimony causing reputational injury not good enough, has to be

incriminating.

I. Transactional immunity:

1. Can’t prosecute for that crime. Also, cannot prosecute for

anything else they might say, any other crimes they admit to

on the stand.

2. Definitely broad enough to be sufficient immunity.

J. Kastigar v. US

o Privilege against self-incrimination extends to cases where the

witness is not himself the subject of prosecution (b/c

obviously it could lead to prosecution), and includes grand

jury proceedings.

o Immunity must be coextensive and coterminous w/ the

privilege in order to supplant it (i.e. in order for the state to

compel testimony).

Use & Derivative Use Immunity: protection against the

use of testimony for subsequent prosecution. May

subsequently prosecute, but all evidence must be from

an independent source (provable by government). This

puts witnesses in the same position in which they would

have been had they remained silent.

o Use and derivative use immunity is adequate to satisfy the

privilege. Statutes granting immunity extend to all

jurisdictions (i.e. are applicable against the states and fed).

o The 5th amen. does not prevent the prosecution from using

evidence derived from legitimate independent source

(whether real or hypothetical), in a subsequent prosecution

(transactional immunity is not required). BofP on the gov. to

show legit independent source.

K. Fed. gov. has said that 18 months is the limit to hold someone for

contempt of court.

1. Doesn’t apply to the states.

L. Hiibel

1. Involved a stop and identify statute.

2. ∆ did not want to give his name, he claimed his name was

privilege. Court says no, that statute was not a link in a change

that would provide a link in a chain of evidence needed to

prosecute the guy for a crime. No reasonable person would

think that giving his name would lead to prosecution.

3. So, level of risk of prosecution needed for “incrimination”: a

real substantial link needed in the chain of evidence to

prosecute.

M. Hit and Run statutes

1. The court: the purpose of that is civil and regulatory, not to

force someone to speak to their commiting a crime, not

facilitated for criminal conviction. It is testimonial and

compelled, but Not incriminating, b/c underlying purpose is

civil.

N. Bouknight, O’Connor

1. Act of production cases, but this is different b/c it dealt with a

child. It is testimonial, is it incriminating or not?

2. Court: the purpose of the statute is not criminal. Meant to

attend to the health and safety of the child, therefore not

incriminating.

3. Dissent Marshall: this statute is aimed a particular group of

parents (those who have abused their children). This makes

this program about ordinary criminal prosecution.

O. Police Interrogation

1. Bram re:voluntariness

a. Facts:

i. Detective and accused are alone in the officer

ii. Accused is made to strip naked

b. Method of Questioning:

i. Officer starts from the assumption that the

accused is guilty, and he has evidence to prove it,

and puts the onus on the accused to prove that he

is not guilty.

c. “but he couldn't see me from where he was”

i. Is that a confession? its called a ‘negative

pregnant’, it is less compelling to a jury, but it

contains within it the seeds of a confession.

d. Court: voluntariness is going to part of the 5th amen.

e. Rule: CONFESSIONS MUST BE FREE AND

VOLUNTARY

i. Confessions cannot be induced by any threat or

promise, or hope of benefit or fear, that,

according to Bram is enough to make confession

inadmissible/involuntary.

f. Can’t figure out the effect on ∆’s mind, so not going to

inquire into that, just focus on the police conduct.

g. ‘Good for the soul’ benefit is not enough to ‘induce’,

although if it is designed to produce something else,

such as point the finger/blame at someone else, then it

does ‘induce.’

h. This case extended the protection beyond physical

coercion.

2. Watt, Frankfurter

a. Solitary confinement, no hearing, sustained questioning

inherently coercive

b. Generally, need a preliminary hearing w/in 24-48 hrs.

c. Jackson, Dissenting:i. Balancing costs of exclusion to against the costs of

admitting the evidence

01. “If the State may arrest on suspicion and interrogate

without counsel, there is no denying the fact that it

largely negates the benefits of the constitutional

guaranty of the right to assistance of counsel.

a. Any lawyer who has ever been called into a

case after his client has ‘told all’ and turned

any evidence he has over to the Government,

knows how helpless he is to protect his client

against the facts thus disclosed.”

02. Physical violence: “Such treatment not only breaks the

will to conceal or lie, but may even break the will to

stand by the truth.”

03. “The Constitution and Bill of Rights represent the

maximum restrictions upon the power of organized

society over the individual that are compatible with the

maintenance of organized society itself. They were

intended and should be so interpreted.

a. Those restrictions we should not for that

reason cast aside, but that is food reason for

indulging in no unnecessary expansion of

them.”

04. If the 5th amen. prevents the State from taking into

custody and questioning one suspect reasonably of an

unwitnessed murder, then

a. If it does, the people of this county must

discipline themselves to seeing their police

stand by helplessly while those suspected of

murder prowl about unmolested.

3. Massiah, Stewart

a. (incriminating statements obtained surreptitiously while

free on bail violated rt.s?)

b. **The gov. cannot illicit incriminating statements thru

undercover agents after the initiation of criminal

proceedings w/out violating 6th amen.

c. 4th, 5th, 6th violated in this case.

d. - Right to counsel attaches post-indictment. Cannot

deliberately elicit (as opposed to passively listen)

incriminating statements after that time in the absence

of counsel. This is one of the most critical periods of the

proceedings. B/w arraignment and trial consultation

and preparation are vitally important, and defendants

are entitled to aid of counsel here as much as at the

trial itself.

e. - Note this was applied even outside the jailhouse

context.

f. White, Dissent:

i. No 4th vio: U.S. v. White

ii. No 5th vio: no coercion, he is talking to his friend

iii. No 6th vio: there was no interference with

communication w/counsel

4. Escobedo

a. Where the suspect has been taken into police custody

and the police carry out a process of interrogations that

leads to incriminating statements; and

b. the suspect has requested and been denied an

opportunity to consult with his lawyer, and the police

have not effectively warned him of his constitutional

right to remain silent;

c. the accused has been denied his 6th Am. Right ‘right to

counsel’.

5. Spano

a. Can still investigate after indictment, just no elicitation,

plus just cannot use his statements against him.

6. Miranda, Warren

a. WARNINGS

i. He has the right to remain silent;

ii. Any statement does make may be used as

evidence against him;

iii. He has the right to the presence of an attorney

during any questioning; and

iv. If cannot afford one, one will be appointed.

v. ---If the suspect invokes any of his Miranda rights,

then the police cannot question him, and any

questioning that has already occurred must stop.

vi. –he may waive these rights

b. WAIVER

i. ∆ may waive these rights

ii. waiver must be made:

01. knowing, voluntary, intelligently

c. Dissent

i. Harlan: the 5th amen. does not ban all pressure

on the confessor. Due process and voluntariness

should be the std. Some compulsion has to be

tolerable.

ii. White: The rules do not make any sense, i.e. if

coercion is the problem then why not just require

counsel to be present.

7. “Custody”

a. Note, “custodial interrogation” triggers Miranda, not “all

arrests.”

b. “Custody” = term of art

i. includes station house interrogation (in-custody

situation)

ii. not in-custody includes: voluntary appearances;

traffic stops; Terry stops (unless they ‘ripen’ into

custodial arrests); grand jury testimony

iii. Gray area (just can make arguments, tough

questions)

01. Berkemer, Marshall

a. Factors to determine whether suspect

is in custody:

1. Duration of the stop, and arrest

2. Exposure to public view

(whether during this period of

time other people could see

what was going on)

3. Whether the atmosphere

outside the station house was

police dominated

4. E.g. accused was surrounded by

police inside his bedroom, it was

a police dominated atmosphere.

5. Has to be police dominated

atmosphere just the fact

someone is in jailhouse is not

dispositive.

02. Murphy

a. A suspect participating in a probation

interview is not “in custody”

8. “Interrogation”

a. Innis, Stewart

i. “express questioning,

ii. or its functional equivalent”

01. i.e. “any words or actions on the part of the

police that the police should know are

reasonably likely to elicit an incriminating

response from the suspect.”

02. “the focus is on the suspect’s state of

mind/perceptions, not the police”

b. Perkins

i. Conversations b/w suspects and undercover

agents are not police “interrogations” for Miranda

purposes

01. Coercion is looked at from suspect’s point of

view, suspect here thought he was talking to

a friend.

02. “Ploys to mislead a suspect or lull him into a

false sense of security that do not rise to the

level of compulsion or coercion to speak are

not w/in miranda’s concerns.”

03. “there is no interplay b/w police interrogation

and police custody.”

04. Brennan, concurrence: Gov. is in a powerful

position to exploit this weakness, look to the

totality of the circumstances.

05. Dissent, Marshall: this is custody.

a. Note: Being alone makes someone

vulnerable, need to talk to someone.

CA: this is not police dominated.

b. Stevens, dissent:

c. Muniz

i. Routine booking questions are not interrogation

for Miranda purposes.

9. Waiver

a. If the Miranda warning have not been given, waiver is

impossible

b. Express waiver, followed by a statement = possible

waiver. Must be knowing, voluntary, and intelligent.

i. Silence will not suffice,

ii. Parial answer is not a waiver

iii. Trickery as to the waiver invalidates it

iv. Factors that weigh against voluntariness:

01. Incommunicado

02. Lengthy interrogation/relay questioning

c. Moran v. Burbine: Under Miranda, deceit and trickery

which does not actually affect the suspect’s knowing

and intelligent waiver is not a concern. (lying about his

attorney outside is ok)

i. Thus, the police are not required to keep the

suspect informed as to the status of his legal

representation.

ii. Distinguishable from Messiah because this

interrogation took place before the initiation of

criminal proceedings.

iii. Stevens, dissenting: Miranda’s waiver standard

precludes trickery.

01. Also: he views the lawyer and the suspect as

‘one,’ so deceit of the lawyer = deceit of the

suspect. Principal and agent.

02. “If the lawyer is seen as a nettlesome

obstacle to the pursuit of wrongdoers – as in

an inquisitorial society – then the Court’s

decision today makes a good deal of sense. If

a lawyer is seen as an aid to the

understanding and protection of

constitutional rights – as in an accusatorial

society – then today’s decision makes no

sense at all…”

d. Mosley (invocation of right to remain silent): When a

suspect invokes his right to remain silent, the police

must scrupulously honor his right to cut of

questioning.

e. Edwards (invocation of right to counsel): When a

suspect invokes his right to counsel, the police cannot

initiate further questioning.

i. Must determine who initiated the further

questioning (waiver or re-initiation).

f. OR v. Bradshaw (after invocation, suspect was held to

have ‘initiated’ further convo. by asking “well, what is

going to happen to me now?”)

i. Some inquiries are so routine that they cannot be

held to ‘initiate’ further convo. (i.e. they cannot be

fairly said to represent a desire on the part of the

accused to open up a more generalized discussion

relating directly or indirectly to the investigation)

– where they are routine incidents of the custodial

relationship.

ii. Despite this, the court held that the inquiry here

evinced a willingness and desire for a generalized

discussion about the investigation. Reasonable

interp. of the officer.

g. Minnick:

i. Once invoked, interrogation cannot be reinitiated

by police w/out counsel present.

h. Davis: The suspect must articulate his desire to have

counsel present sufficiently clear that a reasonable

police officer in the circumstances would understand the

statement to be a request for an attorney.

i. As a result of Miranda, contemporary police

interrogation resembles the method and substance of a

classic confidence game (it is deceptive and

manipulative at its very core).

9/27/09 11:05 AM

9/27/09 11:05 AM