Con Crime Pro Investigation And Right To Counsel

Front 1

The Warrant Preference

Back 1

The SC has instructed cops and lower courts that it has a strong “preference” that warrants should be used, even where a warrneless search would otherwise be unconstitutional. The implication of this preference is that in close clases (situations where probable cause might exist or might not—a close case), searches based upon warrants will be upheld and those not will lean toward not.

Front 2

The Benefits of the Warrant System:

Back 2

1. Have a neutral and detached magistrate judging the value of the warrant. Don’t just have police officers who are biased/there. Relying on magistrate ahead of time.
2. The arbitrary intrusion danger that exists with police making up own minds at time and then later justifying it to the magistrate. A warrant is a complicately document promising person there are limits; etc. Legalness written down.
3. The benefit of Freezing the facts: Later, at trial; the story is not going to change. Whereas if we don’t have this system, then the facts will not be frozen in writing. Don’t know what the police knew early on.

Front 3

The Warrant Requirement:

Back 3

Searches conduct outside the judicial process, without prior approval of a magistrate, are per se unreasonable under the Fourth Amendment--subject to a only specifically established an well-delineated exceptions.

Front 4

Franks v. Delaware (1978) Rule

Back 4

Search Warrant affidavits are to be treated as presumptively valid, and that to successfully go behind an affidavit, “there must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof….allegations of negligence or innocent mistakes are insufficient.”

Note also applies to ommissions of material information from an affiant.

Front 5

To obtain a Frank's hearing challenging a Warrant

Back 5

1. The D must make a substantial preliminary showing,
i. Through allegations accompanied by an offer of proof and
ii. Pointing out specific portions of the affidavit that are claimed to be false
iii. Accompanied by a statement of supporting reasons
2. That a false statement with (at least) a reckless disregard for the truth
3. Was included by the affiant (the officer who signed the affidavit) in the affidavit and
4. That the false statement is necessary to the finding of probable cause.

To obtain remedy requirements are the same but D must show by preponderance (over 50%)

Front 6

Katz Test (Harlan's Concurrence)

Back 6

i. Harlan’s Concurrence: Twofold requirement:
1. The person must have an actual (subjective) expectation of privacy
2. That expectation must be one that society is prepared to recognize as “reasonable”

ii. When the Court determines that a particular expectation of privacy is unreasonable, the police may make an intrusion without complying with the 4th Amendment. Whenever the Court rules against a privacy claim, a particular intrusion is is deemed to neither be a “search” nor a “seizure” that is regulated by the 4th Amendment.

Front 7

Katz Holding

Back 7

iii. The court abandoned Olmstead’s holding that the absence of a physical trespass makes the search not fall within 4th Amendment protection:
1. “The Fourth Amendment protects people, not places.”
2. “What a person knowingly exposes to the public, even in his own home, is not subject to Fourth Amendment protection. But what he seeks to preserve in private, even in an area assessable to the public, may be constitutionally protected.”

Front 8

Pre-Katz-Trespass into the home
Silverman v. US (1961):

Back 8

Pre Katz
Held that a sufficient “trespass” occurred when agents inserted a microphone a few inches into a common wall, in order to make contact with the heating duct of a home and use the heating system to listen to conversations.
1. Implies the human ear can be seized

Front 9

Conversations and Their Monitoring by electronic devices
Berger v. NY (1967):

Back 9

Sixth Months before the Katz decision, the Court in Berger declared that Olmstead’s statements that a telephone conversation does not come within the Fourth Amendment’s enumeration of persons, houses, papers and effects have been negated by our subsequent cases.
1. Rule: Conversations are within the Fourth Amendment’s protections and that the use of electronic devices to capture constitutes a “search.”

Front 10

Open Fields
Oliver v. United States (1984):two narcotic agents entered Oliver’s field by going around a locked gate posted with a “no trespassing” sign. In the field, they found marijuana.

Back 10

Open fields survives Katz. The Open Fields doctrine permits officers to enter and search an open field without a warrant. In Oliver the officers did not need a search warrant to enter the open field.

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Reasoning Behind Oliver Open Fields Exception

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i. There is an overriding respect for the sancity of the home that has been embodied in our traditions since origins. On contrast, open fields do not provide the setting for those intimate activities that the Amendment is entitled to shelter from government interference or survelience. There is no societal interest in protecting the prioacy of those activities. Moreover, as a practical matter, these lands are usually open to the public and the police in ways that a home, an office, or commercial structure would not be. The police and public lawfully may survey the land from the air.
ii. As contrasted with curtilage, where theres a constitutionally protected interest and a reasonable expectation of privacy that open fields lack.

Front 12

Curtilage: United States v. Dunn

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1. The proximity of the area claimed to be curtilage to the home
2. Whether the area is enclosed
3. The nature of the uses to which the area is put
4. The steps taken by the resident to protect the area from observation by people passing by

Front 13

Guests and 4th Amendment

Back 13

Overnight guests have protection of privacy. But, a first-time transient visitor without connection to the householder, except as having been “permitted on the premise” to perform a commercial transaction has no reasonable expectation of privacy interest in a home. (Visitor bagging cocaine had no Fourth Amendment protection)

Front 14

Lewis v. United States
Misplaced Trust theory

Back 14

D invited undercover officer into his home to sell him drugs. He then had incriminating conversations with the officer.
1. “Thus invitation converted the home into a “commercial center to which outsiders are invited for purposes of lawful business” and the agent did not “hear, see or take anything in the home that was not intended by the D.”

Front 15

U.S. v. White
D was convicted of narcotics violations based on conversations heard between himself and a government informant which were overheard by government agents over a radio transmitter concealed on the informant (aka informant was wearing a wire—recording and transmitting info to the cops)
Misplaced Trust Theory

Back 15

Misplaced trust theory absorbed into reasonable expectation of privacy.
1. Misplaced Trust Theory: “The Fourth Amendment affords no protection to a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the state’s case.”
2. Must assume that the informant is going to tell cops: no reasonable expectation of privacy

Front 16

California v. Greenwood (1988)
Detective asked garbage collector to pick up the plastic garbage bags that Greenwood had left on the crub in front of his house and to turn them over to him. The cop found items indiciative to drug use

Back 16

Greenwood had no reasonable expectation of privacy when he left his garbage to the picked up by a third person.
1. Public Access theory: children, dogs, neighbors, the garbage collector all can go into the trash.
2. Conveyance to a third party: the D cobeyed their garbage to a third party garbage collector.

Front 17

United States v. Place-D's behavior aroused suspicion at NY airport, authorities contacted Miami counterparts who met D as he was leaving airport. After D refuses consent to search, Agents confiscate luggage tell him there gonna get a search warrant. Agents then took luggage to different airport, where drug dog sniffs luggage. 90 minutes passed since first seizure.

Back 17

Held: When an officer has RS to believe a passenger's luggage holds narcotics, Terry Permits officer to detain luggage BRIEFLY to investigate circumstances that arouse aroused his suspicion, PROVIDED that the investigation is properly limited in scope. Limitations on investigative detentions of persons applies to similiar detentions of their luggage.

Reasoning
1. Person posses legitimate privacy interest in luggage. Detention of luggage intrudes upon possessory interest as well as liberty to proceed on his intenerary.
2. Exposure of D's luggage to dog sniff in public place not search.

However here the seizure of D's luggage was unreasonable in the absence of PC
1. Length-Brevity of invasion of ind's 4th Amendment interest is an important factor in determining whether the seizure is so minimally intrusive as to justified on RS alone.
A. While Court declines to put a time limit to Terry Stops, never held 90 minutes to be appropriate
2. Also Consider whether police diligently pursue investigation. Here Police knew he was coming and could have been ready to minimize intrusiveness
3. Exacerbated because didn't tell him where they were taking his bags, when he could get them back, how he could get them back, or when he would get them back.

Given the above, the detention of D's luggage went beyond authority granted to police to detain luggage reasonably suspected to contain Narcotics.

Front 18

Illinois v. Caballes (2005): Dog Sniffs:
D was pulled over for speeding (investigative seizure); another agent went over with his dog, did a dog sniff, and found marijuana in the trun

Back 18

2. “Any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, government conduct that only reveals the possession of contraband compromises no legitimate privacy interest.”
3. Rule: Dog sniff of a car exterior not a search or seizure during traffic stop. However,
4. Justice Souter: Dissent: fallibility of dog sniffs. “The infallible dog is a creature of fiction.” The evidence is clear that where the dog that alerts hundreds of times will be wrong dozens of times.

Front 19

Luggage Squeeze
Bond v. united States (2000):

Back 19

The Court held that a police officer may not squeeze a bus passenger’s carry-on luggage in order to ascertain the contents. “When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner.”
1. The intrusion was a tactile one rather than a visual one. Tactile observation is more intrusive than purely visual.
2. Dissent: see no difference between going through garbage and squeezing bag.

Front 20

Myers v. State of Indiana Dog Sniffs
the defendant, high school student John P. Meyers, challenges the trial court’s order denying his motion to suppress evidence resulting from a search of his vehicle in the school parking lot.

Back 20

1. We conclude, however, that the search was reasonable from its inception because it was conducted after an alert by a police narcotics dog. Furthermore, the search as conducted was reasonably related in scope because the school officials limited their searches to those areas upon which the dogs alerted. The vehicle search by school officials was thus reasonable.
2. Because reasonable suspicion is not required for a canine narcotics sniff of the exterior of an automobile that **does not involve an unreasonable detention** of a person, and because the search was predominantly initiated and conducted by the school officials of Austin High School and was reasonable, we affirm the trial court's denial of the defendant's motion to suppress the firearm seized from the defendant's vehicle as a result of the search.

Front 21

Policy Behind Bond Rule on Luggage Squeeze

Back 21

There is no conveyance: it is not like giving your baggage to someone absolutely to take away.
2. You don’t expectt he public to act like they are acting here:
3. Social customs and norms: don’t touch other peoples bags.
4. The dissent in Greenwood helps explain why the Bond D wins: the content of what Is being investigated has important personal things you might not want to disclose publicly.
5. Potential fotr flood gates that the Bond might have opebned to: if had said fine baggage sqeeze is fine.
6. If a cop can do a hard lugage squeeze; then there is nothing special about a bus, could do it anywhaere. Could be walking down the street and the cop does a luggage squeeze.
7. The public is expected to act normally: Greenwood idea--once in a blue moon someone will open your bgarbage; they will protect privacy against cases.
8. Dissent: see no difference between tactile and visual; no different between going through garbage and bag.

Front 22

Tracking Beepers
United States v. Knotts (1983):Officers installed a beeper into a container. Officers then followed the car where the container placed. Then, stopped visual servellence, when D started making “evasive maneuvers.” Then, the cops lost survelience of the beeper, but picked it up again about an hour later. The signal became stationary, in a cabin occupied by Knotts. The beeper was not used after the cabin’s location had been determined. Cops got a search warrant based on the beeper’s findings. Then, discovered a meth lab.

Back 22

1. Facts:
2. Rule: Beepers ok as a substitute for visual surveillance.
3. Reasoning:
1. The government surveillance by means of the beeper was princiapply made by following the car: one has a lesser expectation of privacy in a car.
2. A person driving on the interstate has no reasonable expectation of privacy in his movements from one place to another.
3. Limitation: limited to situations in which there is no indication that the beeper was used in any way to reveal information as to the movement of the container inside the D’s premises.
4. Basic holding of case= scientific enhancement for efficiency to view what the public can already see is not considered a “search”

Front 23

United States v. Karo (1984)
Tracking Beepers

Back 23

Police tracked the can to Ds house; saw D and a woman loading boxes and other items into a trunk of car; the car was followed by tracking device. When the vehicle left, they determined that the can was inside.
1. Rule: Police may not use tracking beepers to obtain information that could not have been observed through visual surveillance.

Front 24

Kyllo v. United States (2001):

Back 24

“We think that obtaining by sense-enhancing technology
1. any information regarding the interior of the home
2.could not otherwise have been obtained without physical intrusion
3.into a constitutionally protected area constitutes a search
4. at least where (as here) the technology in question is not in general public use.”

Front 25

Kyllo Test

Back 25

: If there is a technique that is in general public use, then cops can use it. "We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrustion toa constitutionally protected area’ constitutes a search—at least where (as here) the technology in question is not in general public use”:
1. Note 3: surveillence camera: dissent: didn’t have a problem. If satellite:

Front 26

Rejected Government Arguments in Kyllo

Back 26

1. Thermal imaging must be upheld because it detected only heat radiating from the external surface of the house: court rejects this. This matters for one reason: we don’t want to tie the Fourth Amendment privacy interest to mechanics: we don’t want to boil down to the technicality: a powerful tool of defense laywers: dog sniff: limited info: who cares about technizueq, etc: a privacy intrusion is still an instrusion
2. The Government contends that it did not detect private activities occurring in private areas"
i. Just too hard a standard to use: to allow some surveillence power: because not intimate details: how would you ever draw lines? Everything in a house is private; no matter what it is.
ii. Heat can be intimate: might show what time woman takes bath, sauna.
iii. Court before said: dog sniff not intimate details--now doesn’t matter.

Front 27

Fly Over Cases

Back 27

i. Dow Chemical v. United States (1986): Court upheld the use of aerial mapping camera to take photographs of Dow’s 2,000 acre facility from 1200 feet above. The court reasoned that although the camera was high-tech, the photos were not so detailed to reveal intimate details as to raise constitutional concerns.
ii. Florida v. Riley (1989): Officer could not see yard from street, but could with his naked eye from a helicopter. He saw shrubs of marijuana, and obtained a warrant based on his observations. “Because the sides and roof of his greenhouse were left partially open, what was growing in the greenhouse was subject to viewing from the air. Riley could not have reasonably expected that his greenhouse was protected from public or official observation from a helicopter had it been flying. Any member of the public could fly over Riley’s yard from a helicopter.

Front 28

Probable Cause to Search Requires:

Back 28

1. Probable Cause to Believe that the that evidence of crime exists +
2. Probable Cause to Believe that Evidence is located in place to be searched

Front 29

PC to Arrest Requires:

Back 29

1. PC to believe that a crime occurred or is occurring +
2. PC to believe that the person to be arrested committed that crime

Front 30

Particularity Requirement

Back 30

i. Test= Officer with a search warrant can with reasonable effort ascertain and identify the place intended
1. Does not pass if warrant is so imprecise as to have an “indiscriminate sweep”
1. courts generally look toward actual descriptive language and to descriptions contained in attached (to warrant) affidavits
ii. if officers search the wrong premises on mistaken belief of a valid warrant, this search is not necessarily unconstitutional

Front 31

Carroll v. United States (1925)the suspects were traveling from a "source city" (Detroit) to Grand Rapids; the fact that they were using a route commonly used by bootleggers; the fact that the suspects had previously attempted to sell illegal alcohol to these same federal agents; that defendants were driving the same Oldsmobile roadster that they drove at the time of the attempted sale.

Back 31

ii. When police observations alone establish probable cause because of the suspicious nature and the apparent circumstances and the sufficient quantity of such evidence.
iii. Court considers the totality of the circumstances, including all circumstances (each suspicious in varying degrees) known to the police and decide whether Quantity of PC is sufficient or not sufficient.

Front 32

Illinois v. Gates (1969)
Informant Based PC

Back 32

The Court was concerned that the lower courts had developed elaborate legal rules to enforce the two-pronged test that were inappropriate given that affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigatio

The Gates Court did not abandon the Aguilar-Spinelli test. Gates v. Illinois, 462 U.S. 213 (1983). Instead, the Court replaced the Aguilar-Spinelli test with a "totality of circumstances" test, but retained the Aguilar-Spinelli standards as factors to be considered in the "totality."

"is enough, for purposes of assessing probable cause, that 'corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing 'a substantial basis for crediting the hearsay.'

The Court was concerned that the two-prong test made it difficult, if not impossible, to utilize anonymous tips, which the Court felt were useful in solving crimes.

If its too hard to get a warrant based on a tip, police are given incentive to avoid warrant process.

Front 33

Exigent Circumstances

Back 33

The police may dispense with a warrant when they are faced with exigent circumstances. The police do not have time to obtain a warrant by showing their PC to a magistrate because of some need for immediate action.

Front 34

Minnesota v. Olsen (1990)
Had a robbery and shooting; the driver got away: issue of whether there were exigent circumstances that jusitified the warrantless entry into the hosue to make the arrest;

Back 34

): T
1. Standard in determining whether exigent circumstances existed: a case by case analysis: May be justified by the hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to other persons inside or outside the building.
2. EC may not exist even where police have PC to arrest suspect, and
1. Grave crime was commited,
2. When suspect was unarmed driver of getaway car and weapon already discovered;
3. When suspect has consent of people in home to be there and no risk of danger to them appears on the facts
4. When house is surrounded by several police squads
5. When the time of day is afternoon
6. When there is no danger of destruction of evidence, or need to prevent suspects escape, or risk of harm to police
7. Because suspect can be arrested in public based on PC alone as soon as he steps out of house.

Front 35

Vale v. Louisiana:

Back 35

Arrested Vale outside; searched inside the house:
1. Facts: Police officers possessed a warrant for Vale’s arrest and had information that he was residing at a specified address. They watched Vale do a drug deal. Then, as he was walking to his house, they arrested him inside. They went inside the house, and searched. After entering, the immediately made a cursory inspection to see if anyone was else was present. The search of a back bedroom revealed drugs. The Court held that the search could not be justified under the exigent circumanstances exception. “We decline to hold that an arrest on the street can provide its own EC so as to justify a warrantless search of the arrestee’s house.”
2. Justice Black Dissent: “Vales arrest took place near the house, and anyone observing from inside would surely have been alerted to destroy the stocks of contraband which the police believed Vale had left there.”

Front 36

Plain View Requirements

Back 36

a. The police must be in a lawful vantage point: they must be allowed in place where see stuff
b. Immediately apparent: cant touch to see if
c. Incriminating in nature:
d. Lawful right of access: if see drugs in window, cant go in and grab it

Front 37

Horton v. California (1990): Officer had a search warrant for stolen property and weapons. Didn’t find them, but found other stuff.

Back 37

a. Rule: Officers who are executing a search warrant are also permitted to seuze other, non-described items that the officers see in “plain view” while they are lawfully present at the place executing the warrant.
b. Elements:
1. Lawful vantage point (has to be where they are standing; so if go in without exigency say, and see stuff, that is not plain view.
2. The item itself has to be in plain view. It has to be plainly viewed.
a. Police were lawflly in the dwelling, but when they saw them they moved them.
b. The incriminating character must be immediately appearant.
3. Incriminating characteristics
4. The police officer must have a lawful right of access to the object: two classic hypos:
a. The police see someone on the curtilage and they are outside of the curtilage: cant get there.
b. What is something like marijuana behind a plate glass window: have to watch to see if exigency arise. So plant a guard outisde the house, and wait for exigency.
5. Inadvertently police need for convenience seize it now
ii. Horton was about this last element; decides not to look into police officer’s motive.

Front 38

Plain View
Texas v. Brown (1983):Police officer stopped driver, and when opened glove compartment, saw balloons. Seized the balloon

Back 38

In determining that an object’s character is “immediately apparent,” officers may rely on their training and experience. . Found to be immediately apparent. “The fact that the officer could not see into the balloon is irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents—particularly to the trained eye of the officer.”

Front 39

Plain View
Arizona v. Hicks (1987):The police validly entered an apartment to search for evidence relating to a shooting, and they moved expensive sterio equipment to see the serial numbers

Back 39

May not move an object to confirm its status as contraband. Thus, it was NOT immediately apparent

Front 40

Warrant-less Arrest in Public
United States v. Watson:
cops arrested Watson for having stolen credit cards. Did not have a warrant, but had probable cause.

Back 40

ii. Rule: Police officers do not need a warrant to arrest a D in public, if they have PC. No case by case exigency is required.
iii. Rationales for only needing PC to arrest in Public:
1. Likelihood of exigency:
2. History: very old exception from the colonies on: have state statutes/congressional federal law.
3. Staleness/timing issues.
4. Not much chance of police using this power for a fishing expedition. Still need PC: going to have to show magistrate that had PC.

Front 41

Arkansas v. Sullivan (2001)
Police officer pulled over D for speeding and tinted windshield. Then arrested and searched car, and found drugs. D moved to suppress the evidence, stating that the arrest was only a sham to search the car.

Back 41

The court uheld the arrest: “subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”

Front 42

Steagald v. United States

Back 42

Need a search warrant to arrest in another person's home

Front 43

Chimel v. California (1969): Chimel was legally arrested at his home for the burglary of a coin shop, and the police searched the entire house including the attic, garage, and small workshop. The search took 45 minutes to one hour and the police seized various coins and other objects. The Court held that although police may conduct searches incident to arrest, the police had exceeded the permissible scope of the search in that case.

Back 43

ii. The Court held that a search incident to a legal arrest is “reasonable” for two reasons:
1. The D might have a weapon that he can use to endanger the police or to effect an escape
2. The arrestee might have evidence in his possession that he may try and destroy
iii. The court is no longer going to use the property fiction in Robinowitz that the entire house is under the D’s control. Possession and control of the house property fictions are erased. Actual control is the new rule: immediate control, actual control.

Front 44

Chimel Scope for Search Incident to Arrest

Back 44

1. Reaching area limit: actual control: meaning the area from which he might gain possession of a weapon or destructible evidence.
2. Scope: on a case by case basis. The reasonableness depends on the facts and circumstances—the total atmosphere of the case.

Front 45

US v. Robinson: The police officer arrested Robinson for a traffic violation. Allowed to arrest, and the search applies to even minor offenses.

Back 45

Even though this was for a no-evidence crime, it does not matter.
iii. No Limit: full search of person allowed; even without PC or EC regarding objects on the person.
iv. It is dangerous out there when have someone in car: how governement won: too dangerous not to search. May have weapons concealed on person. The search on the person in Robinson is the full searchL: don’t need a reason to think something there: it is an autmoatic serach. A complete exception to everything.
v. The possible limit would be to just look for weapons, or look for evidence: but here there is no limit on it: the reaching area is the limit, not going to find any more limits

Front 46

Scope Limit on Search Incident to Arrest
Knowles v. Iowa:The person was getting a citation for speeding, but the cop did a search incident to arrest

Back 46

. The government lost: it is just a traffic ticket: but the government said search incident to arrest. The missing ingredient was the full custody arrest. When no full custody arrest: scope limit: don’t get to do any of these powers, unless you have the arrest! The premise of the rule, the origins: the court rebuffs the attempt to expand the power when no arrest was made.

Front 47

Maryland v. Buie:

Back 47

1. Police may search the immediately adjoining arrest zone: not the reaching area: bigger.
a. “We hold that as an incident to the arrest the officers could, as a precautionary ,atter and without PC or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.”
b. Scope limit: looking for PEOPLE. Cant look in pill bottle; Yes automatic, no PC/EC nothing like that required: BUT may only look for people.
2. Beyond this area, if have Reasonable Suspicion that an individual posing a danger at the arrest scheme: they can go into the beyond area: who knows what beyond means: could mean attic, etc: if have resaonble suspicion to believe that a person there.
a. “Beyond that, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danager to those on arrest scene.

Front 48

Automobile Exception:

Back 48

When police have PC to believe that an automobile contains the fruits, instrumentalities, or evidence of a crime, they can search the car without a warrant. The scope of the automobile search is tied to the PC that justifies it.

Front 49

California v. Carney: D traded weed for sex. When someone left the mobile home, said that performed sex for weed. Police searched a mobile home based on PC alone.

Back 49

Although the motor home can function as both a means of transport and a residence, at the time it was observed by the officer, it was clearly being used as an automobile. Therefore, both automobile exception rationales - mobility and lesser expectation of privacy -- would allow the officer to search the motor home without a warrant. You should also be aware that, in California v. Carney, 471 U.S. 386 (1985), the U.S. Supreme Court set forth a number of factors that might be relevant in determining whether a warrant is required under these circumstances, including the location of the motor home, whether it is connected to utilities, whether it is readily mobile and whether it has convenient access to public roads

Front 50

Chambers v. Maroney (1970):

Back 50

:Although the D was in the vehicle at the time of arrest, the vehicle was searched at the police station rather than on the scene. The Court saw no difference between searching then or waiting for a magistrate and searching.

Front 51

Car Exception and Containers
California v. Acevedo:

Back 51

Police may search an automobile and the containers within it if they have PC to believe that contraband or evidence is conained.

b. Now, there is one rule: PC to search a car includes everything inside it.

Front 52

Colorado v. Bertine: D arrested for DUI. Standard to impound cars and inventory possessions when DUI. Here, the cop found cash, cocaine, when doing the inventory.

Back 52

D arrested for DUI. Standard to impound cars and inventory possessions when DUI. Here, the cop found cash, cocaine, when doing the inventory. The search was upheld. The D tried to argue that only may inventory items when there is reason to believe that the car contains dangerous items. Not so. Here, the police were potentially responsible for the property taken into custody. Knowledge of the precise nature of the property was important to help guard against claims of theft, vandalism, or negligence.
a. No evidence police acted in bad faith or for the purpose of investigation.
b. Security of storage facility does not eliminate administrative reasons
c. Only requirement is reasonableness, court declines to micromanage.
d. You must have A POLICY

Front 53

Consent Test

Back 53

iThe totality of the circumstances test: The question of whether consent was to search was in fact “voluntarily” or was the product of duress or coercion, express or implied, is a question of fact to be determined by the totality of the circumstances.
1. The Court should analyze a variety of factors including
a. factors peculiar to the subject (whether the D was is particularly vulnerable because of a lack of schooling or lwo intelligence), and
b. factors that suggest coercion (such as whether police had their guns drawn, they demanded the right to search, or they excercised other factors of subtle coercion.)
2. The cops will have to show the absence of any coercion to show that consent was freely given.

Front 54

Policy Behind Consent Doctrine

Back 54

1. One of the reasoning for allowing this is because cops need consent sometimes to get evidence (as when they don’t have PC to arrest or search) to solve a crime. Might be the only way to get it.
2. Would be a hard standard to apply: knowledge of the right to refuse, might produce more litigation. Could maybe undermine consent by saying that he didn’t know he had a right to refuse.

Front 55

Scope of Consent
Florida v. Jimeno (1991): D gave police consent to search car. Found a paper bag with cocaine in it. D argued that consent was limited to search, but not to closed containers.

Back 55

i. “D granted officer consent to search his car, and did not place any explicit limitation on the scope of the search.”
ii. The burden is on the D to limit the search: if say something vague and broad, then no scope limit.

Front 56

Common Authority
U.S. v. Matlock: A woman consented to the search of her house that she shared with Matlock, including their bedroom. Police found evidence.

Back 56

i. Rule: The womn could consent to a searcg of the room because she had “common authority” over the area.
ii. Common Authority: more than mere property interest, and rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitents has the right to permit the inspection in his own right and that the others have assumed the risk that one may permit the common area to be searched.
iii. Assumption of risk theory: the person assumed the risk that the other person will consent to the search.
iv. Cant consent to the search of someone’s exclusively used area.

Front 57

Illinois v. Rodriguez (1990): Issue of whether a warrantless entry into a home is valid when the consent of a third party whom the police at the time of the entry reasonably believed to possess common authority over the premises, but who in fact does not do so.

Back 57

and held that the state bears the burden of showing that common authority exists
iii. Although the girlfriend did not have common authority, because she did not have joint access or control for most purposes
iv. Reasonably believed that the person lived there.

Front 58

Common Authority
Georgia v. Randolph (2006): Wife consented to search but husband was there objecting. Distinguished the case from Matlock, in which an absent, noconsenting person with whom that authority is shared.

Back 58

Bright line rule – if person is on the premises that person can veto the consent of the other person
ii. Say per se rule is good for the police
iii. Privacy theory (see pp. 261) – say assumption of risk is important but under Katz using social customs and social norms to determine what is reasonable in society – no sensible person would go in home if someone said to stay out (since most people would not go in police cannot go in)
iv. Pp. 262 – court saying you can get a lot of information without going in; have PC so could post a guard and get a warrant; can detain opposing party outside; person could go in and bring evidence out to police; don’t need this consent power
v. Don’t need consent:
1. Can bring evidence out
2. Can tell everything he knows so will have PC.

Front 59

Stop

Back 59

Need reasonable suspicion that criminal activity is afoot. It’s a seizure for Fourth Amendment Purposes.
o Powers:
 Detain and ask questions until suspicion is dispelled (must let go)
 Detain must be termporary, if too long, then turns into an arrest.
• When suspicions are dispelled, has to let them go.
• Case by case review
• No hard and fast rule

Front 60

Frisk

Back 60

need reasonable suspicion that the D is armed and dangerous
o Powers:
 pat down
 Pull out if feels like weapon or plain feels like drugs
o Assume that usually cops act in good faith
o Reasonable suspicion is substitute for PC and EC
o Criminal activity given all the circumstances

Front 61

Terry v. Ohio (1968): A police officer saw suspicious behavior and feared that a robbery was about to take place.

Back 61

b. D has fourth amendment protection as he was walking
c. The stop involved a seizure and the frisk involved a search.
d. Need reasonable suspicion:
e. Limit: the search must be confined to the intrusion designed to uncover weapons.

Front 62

Stop and Frisk
Sibron v. New York (1968)-Polcie officer saw D talk with a bunch of known addicts. Police asked him to com outside and he stated “you know what I am after.” Sibron said something inaudible and reached in his pocket. The cop then shoved his hand in Sibron’s pockets and pulled out heroine.

Back 62

a. No reasonable suspicion here for a pat down search. to shove hands in pockets: no fear that had guns. Also, went beyond the scope of Terry. Did not pat down pockets.
b. Only have reasonable suspicion to ask questions:

Front 63

Stop and Frisk
Adams v. Williams (1972): Get a tip that D is carrying narcotics and a gun in a high crime area. Police approach the car, taps on the window, and asks the driver to open the door. When the driver rolls down the window instead, the cop reaches in the car and removes a fully loaded revolver from the driver’s waisteband. The gun was not visible, but was precisely where the tip said it would be.

Back 63

a. Here, reasonable suspicion is enough to reach inside. But this is sui generis. Usually, this is not enough. The unique circumstances allowed the cop to reach into in order to protect himself from safety.

Front 64

Michigan v. Long-

Back 64

Terry Frisk extended to car areas. Been heavily distinguished and made a little leak.

Front 65

Florida v. J. L. (2000): Police officers received an anonymous tip that a youth wearing a plaid shirt was carrying a gun. There was nothing suspicious about the activity except for the tip. The cop frisked the D and found a gun. The police had nothing to go on other than an anymous tip who neither explained how he knew about the gun nor explained how any basis for believing that was carrying a gun.

Back 65

a. Refuses to grant firearms exception permitting police to stop and pat someone down for firearms under any circumstance.
b. An accurate description of the subject is reliable in a limited sense, it helps police correctly identify suspect, but it doesn’t show the tipster has knowledge of concealed criminal activity.

Front 66

Reasonable Suspicion
Illinois v. Wardlow (2000):

Back 66

D runs as soon as see police. Pat down search. Nervous evasive behavior is enough for RS.

Front 67

Plain Feel
Minnesota v. Dickerson (1993): Police subjected D to a pat down search. Here, the officer determined the lump was contraband only after squeezing, sliding, and otherwise manipulating the contents of the defendant’s pocket—a pocket which the officer already knew conained no weapon

Back 67

If the police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s seatch for weapon; if the object is contraband, its warrantless seizure would be justified by the physical considerations that inhere in the plain-view context.
b. Did three things:
i. Breaks the Terry rule
ii. Try to create a “plain feel exception”—if fee it and it is immediately apparent, then ok
iii. Swearing Rule: whether manipulated it to determine if drugs, or whether it is immediately apparent.

Front 68

What is a seizure
Brendlin v. California (2007

Back 68

: was this a seizure?
b. Test: A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when **the officer by means of physical force or show of authority terminates or restrains his freedom of movement**, through means intentionally applied.
i. The beginning fo the seizure can be traced to the point when a reasonable person in the suspect;s position would not feel free to leave.
c. When the actions of the police do not show an unambiguous intent to restrain, then the test is whether a reasonable person would feel that they can leave.

Front 69

Arizona v. Johnson (2009):

Back 69

The Court explained that during a routine traffic stop, "The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop." Id. at 788. The Court further explained that an officer may perform a pat down of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.


After a valid Terry stop, a frisk for weapons is permissible where the officer is justified in believing that the person is armed and dangerous to the officer or others. The question is whether the totality of the circumstances provides a particularized objective basis for the officer's belief.

Front 70

Gideon v. Wainwright (1963): Gideon was charged in Florida for having broken into a poolroom with intent to commit a misdemeanor. Gideon asks for a lawyer, but Florida only appoints a lawyer in capital cases; Florida was one of only 5 states that did not provide a lawyer at the time.

Back 70

i. The Court overrules Betts v. Brady. Finds that the appointment of counsel is a fundamental right, essential to a fair trial.
1. A person who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided to him.

Front 71

Rationales for Gideon

Back 71

should make it the same as federal.
1. 1. Obvious truth: Unskilled D's need lawyers]. It is an obvious truth that lay people have no skills. (Justice Black(
2. 2. Innocent will be convicted without lawyers (bottom of page, Justice Black
3. 3. Crucial for lawyers to put state to prove legal guilt (not just factually guilty); if charged with a crime, the D is incapable --Blackman. Maybe someone is guilty, but maybe not legally guilty on admissible evidence. Need to convict not just the guilty, but the legally guilty.
4. 4. Lawyers are not luxuries but necessities: we rely on prosecutors, need adversarial system; also, people who can afford a lawyer will get one; need equality among rich and poor.

Front 72

“Day in Jail” Rule:
Argersinger v. Hamlin (1972): D charged with carrying a concealed weapon, an offense punishable by imprisonment up to 6months, a $1000 fine, or both. The FL SC followed Duncan v. LA which held that the right to counsel only extends to trials for non-petty offenses punishable by more than 6 months imprisonment.

Back 72

The SC ruled that an indigent defendant cannot be imprisoned in jail or prison for any period of time—even a single day—unless he has been given the opportunity to have counsel appointed for his defense.
• Powell/Rehnquist concurrence: thinks that it should be on a case by case analysis.

Front 73

Car Doctrines Quick
Belton/Thorton
Gant
Michigan v. Long
U.S. v. Ross

Back 73

Belton/Thorton-permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offence of arrest.

Gant-Police are authorized to conduct a SI2A of a recent occupants vehicle only when the arrestee is unsecured AND within reaching distance of the vehicle AT THE TIME OF THE SEARCH or when it is reasonable to believe that there is evidence of the crime of arrest within the vehicle.

Michigan v. Long-Permits a an officer to search a vehicle's passenger compartment when hes has RS to conclude that an individual is dangerous and might access the vehicle to gain "immediate access to weapons".

U.S. v Ross-Where theres PC to believe that the vehicle contains evidence of criminal activity authorizes police to search any area of the car in which the evidence might be found. Allows searches for evidence relevant to offenses other than the offence of arrest and cope authorized is broader at it can go beyond passenger compartment.

Front 74

Potential Jail: Scott v. Illinois (1979): Scott convicted of theft and fined $50. The statute set the max penalty for theft at $500 fine and/or one year in jail. Scott argued that Argersinger requires that state provide counsel whenever imprisonment is an authorized penalty

Back 74

The Court held that actual penalty and authorized penalty are distinct. The Court held that the central premise in Argersinger—that “Actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment”—is sound and thus draws the line that actual imprisonment is the line defining the constitutional right to appointment of counsel. What this means is that a judge cannot sentence an indigent D to jail or prison—even if the sentence is suspended—ift hat D has not been afforded the right to counsel

Front 75

Powell Concurrence in Argesinger

Back 75

a. Federalism idea: too hard to have a national uniformity. The diversity of the criminal justice system: Some small towns with no lawyers nearby. Too hard to legislate a national uniformity with right to counsel. Very hard for the states to
b. A cost-benefit analysis. If look at all the cases of people getting fined only--would be expenseive to give lawyers. It would be overkill. Only would be doing it for the samll percentage of people who actually need a lawyer. A totality test: use factors to determine. Powell wants to have case by case.
c. Due Process + 6th Amendment: Envoke the old idea of due process. Case by case, protection against extreme unfairness. No per se rules. Images of what is due process.

Front 76

Suspended Sentence
Alabama v. Shelton:

Back 76

We hold that a suspended prison sentence that may end up in the actual deprivation of a person’s liberty may not be imposed unless the D was assisted by counsel for the crime charged.

Front 77

Brenna Dissent
Scott v. Illinois

Back 77

: he thinks that authorized jail time should be the rule. Theft is not “petty;” it carries a moral stigma traditionally associated with moral depravity; thinks Scott should have been appointed counsel.

Front 78

RtC Sentence Enhancement
Nicholas v. United States

Back 78

the Court held that an uncounseled misdemeanor conviction, valid under Scott because no prison sentence was imposed, is also valid when used to enhance punishment at a subsequent conviction.

Front 79

RtC Beyond Trial
Kirby v. Illinois

Back 79

Because the Sixth Amendment text applies to “all criminal prosecutions,” not simply to :all criminal trials,” the Sc has held that the right to appointed counsel attaches prior to trial, at any “critical stage of the criminal prosecution” after the initiation of adversery judiciary criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arrangement.”

Front 80

RtC beyond Trial- critical stage
U.S. v. Wade

Back 80

The SC has deemed a proceeding to be a critical of the prosecution when “potential substantial prejudice to the defendant’s rights interferes in the particular confirmation, and the ability of counsel can help avoid that prejudice.”

Front 81

Faretta v. California (1975):

Back 81

In order for a D to represent himself, he must “knowingly and intelligently” forgo the right to counsel. “Although a defendant does not need to have the legal skills of a lawyer, but he must be aware of the dangers and disadvantages of self-representation, so that the record will establish that he kniws what he is doing and his choice is made with his eye open..” The Cali SC deprived him of his right to self defense. If require legal skills, then only lawyers would have the right.

Front 82

Policy Rationales for Farretta Rights

Back 82

1. A nearly universal conviction that forcing a lawyer upon a D is contrary to his basic right if he doesn’t want one.
2. Fair Administration of justice is personal to the accused
3. Absence of historical examples of forced representation
4. Respect for the individual

Front 83

Blackmun Dissent Farretta Right

Back 83

There is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defnse to criminal charges. Will be congestion in courts if allow.
1. Warned that if the old saying: “One who is his own lawyer has a fool for a client” is right, then the court bestows a constitutional right on one to make a fol of himself.

Front 84

Farretta Limits
Godinez v. Moran (Old Rules)

Back 84

ii. Competency: The same standard of competency for the ability to stand trial.
1. Dusky Standard: Competency means:
a. A rational and factual understanding of the charges against him
b. The ability to consult with a lawyer to prepare defense
iii. Knowing and voluntary: determine whether the D actually does understand the significance and consequences of a particular decision and whether the decision was coerced.
1. The Trial Court may not accept a waiver of counsel unless and until they obtain the D’s assurances on the record that he fully understands the significance and consequences of such a waiver.

Front 85

Mental Illness-related Limitation on Self-Representation Right: Indiana v. Edwards (2008):

Back 85

iii. The new standard: changed from competency to stand trial to a vague mental illness standard: “We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”

Front 86

Rationale of Edwards Mental Illiness Limitations on Farretta Right

Back 86

Court should not use the same competency standard for (1) competency to stand trial and (2) competency to conduct own trial in self rep. Mental illness is not a unitary concept: It varies in degree and it varies obver time. Here, the defendant is able to stand trial, but not able to carry out the basic tasks needed to conduct himself at trial. The American Psychiatric Assosication says that a mentally ill person will have disorganized thinking, deficits in sustaining attention and concentration, anxiety, impaired expressive abilities, among others: all of these things will impair a persons ability to conduct trial.
3. The Court held that allowing a mentally ill D to procede pro se will not “affirm the dignity” of the individual. Instead, the trial will likely be humiliating and ennobling. Also, the lack of capacity will interefere with the D’s conviction or sentence, and thus will interfere with the most basic Contitional protection: the right to a fair trial.
4. The proceedings must not only be fair, but they must appear fair to all who observe them.

1. Undercuts the most basic of the Constituon’s objectives: a fair trial

Front 87

Scalia Dissent For Edwards

Back 87

calia is afraid that trial judges will deny right to self-representation based on impulse to not allow a seeming incompetent. “It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se....” Once the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier—to avoid the painful necessity of deciphering occasional pleadings of the sort contained in the Appendix to today's opinion—by appointing knowledgeable and literate counsel.

Front 88

Procedures for Farretta trial

Back 88

1. Wait for the defendant to invoke the right to self-rep. (Nothing says entitled to know it exists)
2. When invocation occurs, some warning is necessary (and this is about the dangers)
3. If the waiver looks good, it is accepted. (Knowing+Intelligence+Competence)
4. Invoke Faretta in timely fashion. On p. 46. The timeliness of the invocation. If someone invokes it too late, not going to be able to do it--otherwise the pros will be prejudiced. (Unabomber, invoked too late…tried to fire his judges right before trial.)
5. The judge may terminate self-representation
example: Musalli: insulted the judge too many times--viewed by that judge as extreme.

Front 89

Core Farretta Rights

Back 89

1. Have voice heard
2. Control the organization of content of defense
3. Make Motions
4. Argue Points of Law
5. Participate in Voir Dire
6. Question Witnesses
7. Address Court and jury When Appropriate

Front 90

Stand-By Counsel: McKaskle v. Wiggins (1984): Wiggins was convicted of robbery and sentenced to life imprisonment. He argues that stand-by counsel’s conduct deprived him of his right to present his own defense as guaranteed by Faretta

Back 90

v. TWO types of Limits Recognized on SBC:
1. D needs actual control over case—So SBC’s participation OVER OBJECTION cant interfere with:
a. Significant tactical decisions
b. Or Control question of witnesses
c. OR speak instead of D on any matter of importance.
2. SBC participation WITHOU CONSENT can’t destroy "the jury's perception that defendant is pro se representing himself"
a. Message of D depends on D as messenger—jry must know that self-rep is being excercised.

Front 91

TEST FOR SBC and ACTUAL CONTROL outside jury BEFORE JUDGE ONLY

Back 91

Faretta rights are adequately vindicated in proceedings outside of the jury if:
1. If D is allowed to address court freely on his own behalf and
2. If disagreements between counsel and the pro se defendant are resolved in D’s favor whenever the matter would be left to discretion of counsel.

Front 92

Important threshold question concerning Faretta right in presence of jury

Back 92

whether D agreed to SBC’s actions: A D may waive his Faretta right—Participation by counsel with pro se D’s approval is unobjectiable.
1. Invitation to participate wipes out actual control claim and diminishes jury perception claim.
2. D’s acquiescence may also undermine claims, even though D objects at outset.

Front 93

Three Rules for SBC

Back 93

1. Hybrid Representation is not Constitutionally Required: No choreography or special appearances of counsel.
2. Once D agress to any substantial participation, later appearances by SBC are presumed to be with acquiescence, unless D objects (“expressly and unambiguously renews his request that standby counsel by silenced.”)
3. There are Two Types of Permissible Actions by SBC:
a. SBC may assist the D in Overcoming routine procedural or evidentiary obstacle to the completion of some specific task, such as introducing evidence or objecting to testimony, that the D has clearly shown he wishes to complete.
b. Faretta right not infringed when SBC Helps to ensure D’s compliance with basic rules of courtroom procedure
• Rationale for accepting these two types of SBC actions:
o No significant interference with actual control occurs
o Likelihood that perception of D’s self-representation will be eroded in the eyes of the jury is “slight” and “tolerable”

Front 94

Waiver of the Right to Counsel: Iowa v. Tovar (2004): The Iowa Court held that in order for the D to effectively waive counsel, the court must: (1): advise the D that waiving the assistance of counsel in deciding whether to plead guilty entails the risk that a viable defnse will be overlooked; and (2) that by waiving his right to an attorney he will lose the opportunity to gain an independent opinion on whether the fact and applicable law, it is wise to plead guilty.

Back 94

We have described a waiver of counsel as intelligent when the defendant “knows what he is doing with his eyes open.” We have not, however, prescribed any formula or script to be read to a D who states that he elects to proced without counsel. The information a defendant must possess in order to make an intelligent election will depend on a range of case specific factors, including the D’s education or sophistication, the complex or easily grabbed nature of the charge, and the stage of the proceeding.”
1. “Although the D need not himself have the skill and experience of a lawyer in order to empletently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record establishes that he knows what he is doing.”
iv. Rule: A waiver is knowing and intelligent if the D fully understands the nature fo the right and how it would likely apply in general in the circumstances. It is the D’s burden to show that he did not competently and intelligently waive his right to counsel.
v. Here: Tovar has not claimed that he did not fully understand the charges against him. He did not assert that he was unaware of his right to be counseled. He merely says that he may have been unaware.

Front 95

Ineffective Assistance of Counsel Strickland v. Washington (1984):

Back 95

The purpose of the requirement of an effective assistance of counsel is far a fair trial. “The benchmark for judging any claim of any effectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied as having a just result.”

Front 96

Strickland Test First Prong

Back 96

1. The D must show that counsel’s Performance was deficient:. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel “ guaranteed under the Sixth Amendment. The proper standard of attorney reasonableness is simply reasonableness under the prevailing professional norms.
a. Presumption that challenged action is a Strategy: Strategic choices *made after thorough investigation of law and facts* relevant to plausible options are virtually unchallengable.
b. Presumption of Reasonableness: Judicial scrutiny must be highly deferential—no second guessing. It is too easy to look in hindsight. The reviewing Appellate Court “must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance; that is—the D must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
i. The D must show that counsel’s rep fell below an objective standard of reasonableness. There is no one specific task that counsel must do or not do in order to be deemed effective. The court flatly rejected a checklist approach of counsel’s basic duties or obligations for judicial evaluation of attorney performance. Instead, “the proper standard for attorney performance us that of reasonably effective assistance.”
ii. Must look at the prevailing professional norms: look at ABA standards
iii. Duties beyond ABA are only guides:
1. A duty ofloyalty, a duty to avoid conflicts of interest, a duty to advocate the D’s cause and duty to consult with the D on important decisions and to keep D informed.
c. Decisions made based on what the D tells counsel. (In Strickland, had a guilty plea setting because the D wanted that)
i. "The reasonableness of counsel's actions may be determined or substantially influenced by the D's own statements or actions."
ii. When a D has given counsel reason to believe that pursuing certain investigations would be fruit-less or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.”

Front 97

Strickland Test Second Prong

Back 97

2. D must show that the deficient performance PREJUDICED the defense: This requires showing that the counsel’s errors were so serious as to deprive the D of a fair trial, a trial whose result is reliable. Even if the counsel’s performance was unreasonable, the D must still show that they actually had an adverse effect on the defense.
a. The reasonable probability test: The D must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding wuld have ben different outcome.
i. Reasonable probability is probability sufficient to undermine confidence in the outcome.
ii. But for the counsel’s errors, the D would not have been found guilty.
iii. Not enough for D to show that the errors had some conceivable effect on the outcome: conceivable effect on the outcome test is rejected.
iv. The Appropriate Test for prejudice is that the D must show that there is a reasonable probability that the result would have been different.

Front 98

Extrinsic Ineffectiveness: U.S. v. Cronic (1984): Cronic was indicted on mail fraud charges involving the transfer of over $9m in checks. The court then appointed a young lawyer with a real estate practice to represent Cronic, but only gave counsel 25 days to prepare. The trial court convicted D and he got 25 years. The appellate Court overturned the conviction based on five extrinsic factors:
1. The time afforded for investigation and preparation
2. The experience of counsel
3. The gravity of the charge
4. The complexity of possible defenses
5. The assessibility of witnesses to counsel.

Back 98

1. Rule: A criminal D can only make out a ineffective assistance of counsel claim by pointing to specific errors made by trial counsel.
2. Have to point to some actual defefiencies in counsel’s performance. Cannot presume prejudice based on extrinsic factors.

Front 99

When does the Cronic test apply over that of strickland

Back 99

Cronic, not Strickland applies when “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”
1. One factor warranting the presumption of prejudice is when counsel is either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.
2. Factors that are extrinsic to counsel actual performance created an permissible inference of ineffectiveness.

Front 100

IAC
Knowles v. Mirzayance (2009): D claimed ineffective assistance of counsel because his attorney recommended withdrawing his insanity defense. D confessed that he stabbed his 19 year old cousin nine times with a hunting knife and then shot her 4 times. Counsel entered both pleas of not guilty and not guilty by reason of insanity. In California, when both pleas are enetered, the court must hold a bifurcated trial, with guilt determined by the first phase and insanity determined by the second. During the guilt phase, counsel tried to argue second degree murder by showing D was insane at the time and thus not able to premeditation required. The jury nonetheless found him guilty of first degree murder. Dropped insanity defense because thought would lose.

Back 100

Performance is NOT deficient just because counsel' choice gives the D no tactical advantage--just because the D had "noting to lose" by counsel perusing strategy X.

Front 101

Rompilla v. Beard (2005)
Rompilla was convicted of murder. His lawyers did not examine the court file on Rompilla’s prior conviction, even though they knew that the prosecution was going to use it.

Back 101

The Court held that defense counsel in a capital case was ineffective for failing to take reasonable efforts to obtain
and review critical information relating to a prior conviction counsel knew the prosecutors would probably rely on as evidence of aggravation at the sentencing phase of trial (where there was a reasonable probability that if counsel had obtained that file and used the information contained therein, the sentencing jury might not have sentenced the D to death).

1. The SC put a great deal of emphasis on the ABA standard. Does not find “what the D told counsel” important,
2. Here, the counsel did not go to the courthouse to look into the file that they knew the prosecutors were going to use—this was against the ABA standard.

ii. Prejudice: Here, there is a reasonable probability that if the jury had heard the mitigating circumstances, it would have influenced the jury;s appraisal.

1. Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment.

Front 102

Rompilla Changes

Back 102

1. No longer is what the D telling the counsel as important: could have told counsel that all these horrible things happened, but did not. The Court faults the counsel for not looking up info.
2. List of Duties: Now, ABA standards are what is important: Not just a guide: the ABA matters do matter.

Front 103

Prejudice Prong: Glover v. United States (2001): Glover was the VP of Union: used his control over the union to enrich himself through kickbacks. The presentence investigation report wanted the convictions for labor racketerring, money laundering, and tax evasions be grouped together. Glovers counsel did not argue that they should not be grouped together. As a result of this, Glover’s offense was increased by two levels, giving an increase in the sentencing range. As a result, the 84 month sentence that he received was an unlawful increase of between 6 and 21 months.The Appelate court held that relied denief when the increase in the sentence is said to be not so significant as to render the outcome of sentencing unreliable or fundamentally unfait.

Back 103

ii. Court rejects this understanding of prejusice: Only need one day in jail for prejudice:
iii. Allow people who are in cases that are not capital to argue ineffective assistance of counsel: possible to say lawyer made mistakes and I got more time because of it.

Front 104

Conficts Raised Prior to or During Trial: Halloway v. Arkansas (1978):

Back 104

The SC established that where counsel has been brought the issue of potential conflict to a trial court’s attention and the trial court failed to properly respond to the motion, by faling to either grant it or to properly ascertain the potentialty of a conflict at an appropriate hearing, reversal of a D’s conviction is “automatic,” even in the absence of a demonstration of prejudice.
i. Where counsel timely identifies and alerts the trial court to the risk of a COI, the trial judge must “either appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.”
ii. Rule: -Automatic reversal when the trial judge ignores counsel's motion to solve a conflict problem in a multiple rep case.

Front 105

Hypothetical: D counsel objection to conflict triggers inquiry by judge who then decides no conflict exists:

Back 105

i. Require appointment of separate counsel based on objection alone:
1. ABA standard states that you should never have multiple unless go through steps:
a. The several Ds give an informed consent to such multpiple rep
b. The consent of the Ds is made a matter of judicial record. In determining the presense of consent, trial courts should make appropriate inquiries respecting actual or potential COI of counsel and whether D fully understand the difficulties that defense sometimes encounters in defending multiple clients. \
ii. Duty to Inquire into the Conflict upon Objection:

Front 106

Conflicts Raised Post Trial: Cuyler v. Sullivan (1980): Three co-defendants in separate first-degree murder prosecutions arising out of the same incident were jointly represented by two privately retained counsel. One of the three D’s came to trial first and was convicted. His two co-defendants were tried subsequently and acquitted. Sullivan argued in collateral relief proceedings that he had received ineffective assistance of counsel because his cousel possessed a conflict of interest in their rep of the three co-Ds.

Back 106

i. Issue: when an alleged conflict of interest NOT raised prior to or during trial could and should amount to ineffective assistance of counsel.
1. Because counsel did not raise the possibility of a COI before, a new test.
ii. Test: In order to establish a violation of the Sixth Amendment, a D who raised no objection at trial must demonstrate that an actual conflict of interest adversely effected his lawyers performance.
1. Actual Conflict Exists: Must show how your interests diverged from your co-defendant. In Cuyler, Suillivan wanted to take the stand, co didn’t.
2. Adverse Effect on Counsel: In Sullivan, counsel admitted to the adverse effect.

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Mickens v. Taylor (2002): No objection to conflict by counsel (so not Halloway), but D claims that trial judge should have inquired into conflict where judge appointed victim's ex-counsel to represent D. In Mickens, the counsel was representing his client’s victim at the time of the victim’s

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i. D argues for automatic reversal. Court rejects and goes with Sullivan standard:
ii. Even if the trial court neglects a duty to inquire into a potential conflict, the D must still show that an actual conflict of interest existed and that the conflict adversely affected the counsel’s performance. Because the D was unable to prove that the confict adversely affected his counsel, he did not meet the test.
1. Same standard as Cuyler; even if the trial judge was horribly wrong/negligent.
2. Reasoning:
a. Don’t need more of a deterrent; most trial judges will be careful. Don’t want all D's arguing that the trial judge was negligent.
b. Don’t want an extra deterrent on the TJ: that if the trial judge negligent, automatic reversal.
c. Can argue that if the lawyer does not object, then maybe not effective. But Strickland standard is very high.
iii. Rule: Reversal need not be automatic every time a trial court fails to inquire into a potential COI about which it knew or reasonably should have known: When trial

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Scalias Warning to Trial Courts in Mickens

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1. Lower Courts Have applied Sullivan “unblinkingly” to all kinds of alleged attorney possible conflicts: Have applied to:
a. When representation implicates counsel’s financial interests, including a book deal
b. A job with the prosecutor’s office
c. A teaching of classes to IRS agents
d. A romantic entanglement with a prosecutor
e. Fear of antagonizing the trial judge
2. Scalia: says that applying Sullivan to these kinds of issues (when conflict of interest is NOT A MULTIPLE REP CASE) is still open. So Strickland may apply! “Whether Strickland be extended to such cases remains on open question.”

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Griffin v. Illinois (1956):

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The SC concluded that an indigent prisoner appealing from his conviction in state court had a 14th Amendment right to a free transcript of his trial where such transcripts were often a practical necessity for securing an appeal. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded adequate appellate review as Ds who have money enough to buy transcripts.” This is a combo of a violation of due process and equal protection because discriminating against indigents.
1. Equal Protection: rich v. poor discrimination
2. Due Process: unfairness. It is arbitrary to give one person a transcript and not another. If going to have appeals, then everyone should be the same way

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Douglas v. California (1963):

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A companion case to Gideon: the SC held that an indigent D has a 14th Amendment right to the assistance of counsel on a first appeal where the state has granted them the right to appeal (as opposed to those instances where entitlement to appeal is only discretionary).
1. Rule: Where a state has granted the right to appeal, have the right of counsel.

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RtC on Appeal
Ross v. Moffitt (1974): Two consolidated cases: The first D wants to get a lawyer to help him prepare a cert. petition. The second D wants a lawyer to help him in the post conviction phase.[TrialFirst Appeal of Right2nd AppealCert Conviction]

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The SC refused to extend the Griffin-Douglass doctrine to indigents in discretionary state appeals and applications for review to the Supreme Court. Held that “the duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent D an adequate opportunity to present his claims fairly in the context of the State’s appellate process.”

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Halbert v. Michigan (2005): Michigan voters approved a proposal amending the State Constitution to provide that “an appeal by an accused who pleads guilty or nolo contendere (means that you don’t contest—you say I am guilty—I don’t contest that) shall be by leave of court.” Thereafter, several Michigan judges began to deny appointed appellate counsel to indigents” convicted by plea. D was convicted on his plea of nolo contendere—and sought the appointment of counsel to assist him in applying for leave of appeal to the Michigan Court of Appeals. The state and appellate trial courts denied his request.

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iii. The Court state that two considerations were key to the Douglas decision:
1. An appeal entails an adjudication on the “merits.”
2. First-tier review differs from subsequent appellate stages at which the claims have once been presented by subsequent appellate counsel and passed upon by an appellate court.
iv. Held: The case is aligned with Douglas, and not Ross: Two aspects of the Michigan court of appeals process that lead court to this conclusion:
1. In determining how to dispose of an application for leave to appeal, Michigan intermediate appellate courts look to the merits of the claim made in the application.
2. The indigent D’s pursuing first-tier review in the Court of Appeals are generally ill equipped to represent themselves.
v. In Halbert, the Court said this looks like a discretionary appeal, but they re-characterized it as the D’s only shot at appeal.

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“Meaningful Access to Justice”: Ake v. Oklahoma (1985): His behavior was so bizarre at the arraignment that the trial judge ordered him to be examined by a psychiatrist to determine if the D needed a period for mental observation. The pshychiatrist found he was delusional and possibly a paranoid schizophrenic. He went to a mental hosoital for 6 months, and found not fit to stand trial. Then, 6 weeks later, found competent to stand trial because got put on meds. The D counsel told trial judge that he needed a psychiatrist to evaluate his mental condition at the time of the incident. The trial judge rejected

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ii. Issue: Whether the Constitution requires that an indigent D have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.
iii. The Court found that the D was entitled to the psych report in order to insure “meaningful access to justice.” The basic Tools of an adequate defense must be provided for an indigent D.

Access to the raw materials for building a defense; an expert may be part of those raw materials or not.

First do three factor test (R

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Three Factor Test for Ake Expert

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1. The private interest that will be affected by the interest of the state
a. This is weighty: the individual’s interest in the accuracy of the proceeding.
(Government also has an interest in making sure proceedings are accurate)
2. The governmental interest that will be affected if the safeguard is to be provided
a. Mostly money: not a weighty
3. The probable value of the additional or substitute procedural safeguards & the risk of the erroneous deprivation of the affected interest if those safeguards are not provided. (The probable value of having a psychiatrist, and the risk of error if don’t have an expert).
a. Psychiatry has come to play a crucial role in criminal proceedings. When the Ds mental condition is relevant to his criminal culpability and is called seriously into question, the risk of error in the proceeding if psych assistance is not offered is great.

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Two Burdens of Ake Motion

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Burdens:
1. That the expert’s assistance is going to fit the probable value risk of error calculation:

2. Significant/Substantial Factor Test: The expert that you want is a substantial factor at trial That the expert’s testimony is going to be a substantial factor at trial

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Bad Closing
Smith v. Spisak

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DC not ineffective for making closing argument @ penalty phase. D claims it was constitutionally inadequate for understating facts about D's mental illness, understated facts about mitigating circumstances, no explicit request to avoid death
SCOTUS says no evidence better closing argument would have made a difference. Lost of evidence. Mental deficiency testimoney clearly established by disbelieved by fact finder.

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No Investigation at all into mitigating circumstances
Porter v. McCollum

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DC's failure to conduct some sort of mitigation investigation into D;s mental health, family background, or mental health. Clearly did not reflect reasonable proffessional judgment. Not a case were it wouldn’t have had any effect. Would have heard kind of troubled history relevant to determination of D's moral culpability, nothing to humanize him at all. D prejudiced by counsels failure to conduct a thorough or even cursory investigation, which was unreasonable.

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Deportation
Padilla v. Kentucky

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DC insufficient for not warning D his guilty plea would lead to deportation. Not limited to simly misadvice, as deportation is equivalent to banishment or exile.

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Where Mitigating Evidence would be cumulative
Bobby v. Van Hook

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Counsel not ineffective for failing to adequaltey investigate where DC presented a great deal of mitigating evidence and additional evidence would have been cumulative.

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Failing to Object Smith v. State

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State Supreme court holds counsel to be ineffective for failing to object to hearsay statement when DC states no trial strategy involved. No deference appropriate where DC admits no part of strategy and simply tactical error.

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Sears v. Upton-Having found Demarcus Ali Sears guilty of a capital crime, a Georgia court sentenced him to death despite several mitigating circumstances, including a severe cognitive impairment and an abusive childhood. Most of these mitigating circumstances were never brought out by the defense attorney during the sentencing phase of the trial. The lower court ruled that although the defense attorney clearly provided an inadequate defense, there was no way to know – without speculation – whether that might have prejudiced the sentencing phase of the trial.

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The Supreme Court vacated the judgment of the lower court and required them to reconsider the claim. Proper application of the prejudice test of Strickland v. Washington "requires precisely the type of probing and fact-specific analysis that the state trial court failed to undertake." Courts must undertake a point-by-point investigation of the deficiencies in the defense and reweigh the likely outcome. Courts may not perform a cursory analysis and claim that there is no way to know how the inadequate defense might have affected the outcome of the trial.

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Arguments for No RTC on 2nd appeal:

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At this point in time: this is not the first appeal and not the first chance to look for error; we have already done all that--we have the brief written by the lawyer: the nature of the proceedings, the fact that you can appeal pro se; jailhouse lawyer.

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Argument for RTC on second appeal:

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To have a meaningful appeal, need a lawyer. Law is established from the appeal process: if don’t have effective appeals, then system breaks down.
b. All this legal stuff that is not typically in the first brief: the first lawyer is going to look at evidence, jury instructions. The 2nd breif is going to look at "legal" claims. There is a page limit on the first appeal. The 2nd appeal has unique needs that only a lawyer can address.

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Rationale for Automobile Exception

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Cars are mobile
1. Mobile at the turn of a key, even if not moving.
ii. Less expectation of privacy in car than in home.
1. Not because car is in plain view, but because of the government regulation of vehicles capabale of traveling on the public highways. The public is fully aware that the car is afforded less privacy because of this compelling need for government regulation.
2. A range of police regulation not allowed at house.
b. Scope Limit: can only search in the areas of the car for the objects that related to the crime. So if you have probable cause that the D has drugs, can search everywhere. But if you have PC that the D has stolen paintings, may not look everywhere.

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Mendenhall Factors for Seizure

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"Our conclusion is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her being so informed.

the presence of several officers probably makes it more likely that a reasonable person would not feel free to leave

the Court seemed to distinguish between the officer simply being armed and displaying the weapon, "The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon."

difference between a "request" and a "demand" by officers dealing with citizens. An authoritative voice makes it more likely that a court might conclude that the police have "convey[ed] a message that compliance with their requests is required.",
if the suspect submits to the show of authority by the officer, a seizure has occurred
In Hodari v. California, 499 U.S. 621 (1991), on facts similar to those in the question, the Court explained that although the Mendenhall test requires a show of authority such that a reasonable person would not feel free to leave, if the suspect flees from the officer, there is no seizure.

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Traffic Stops and 4th Amendment Seizure
Delaware v. Prouse

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It is settled law that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.

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Passenger Seizure in Traffic Stop?
Brendlin v. California

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We hold that a passenger is seized as well and so may challenge the constitutionality of the stop

An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place

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RS and Dangerous Neighborhoods

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Although the high crime nature of the area is not irrelevant, the U.S. Supreme Court has stated that "An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable particularized suspicion that the person is committing a crime." Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

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Refusing to Cooperate

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Although the U.S. Supreme Court has made clear that individuals have the right to avoid or ignore police officers and go on their way, and that any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure, the Court has also stated that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."

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RS and Previous involvement in Criminal Activity

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Correct. Standing alone, the fact that an individual has previously been involved in criminal activity does not establish reasonable suspicion that they currently are engaged in criminal activity. But under the totality of the circumstances approach mandated by the Court, it could be considered as adding suspicion to the overall situation. The officer is witnessing behavior that could be innocent, but could also indicate a drug transaction. The officer's knowledge that the individuals have previously been connected with drug dealing adds a suspicious color to the activities.