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313 Cards in this Set
- Front
- Back
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Parts of the constitution
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Text of constitution- drafted to apply to fed. Gov. actors to restrict from overreaching into citizens lives. Does not restrict the states
Bill of rights- 1st ten amendments to the constitution. as originally drafted were only to apply to fed. Government actors. States were not bound Other 16 amendments that follow- 11-26th amendments. 14th amendment is of most important- due process of law, equal protection. Enacted/ratified after civil war 1860s |
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Incorporation
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Process by which provisions of the Bill of Rights are applied – via the Fourteenth Amendment – to the states
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2 views regarding incorporation
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total and selective incorporation
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total incorporation
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believed bill of rights should be applied to the states totally
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selective incorporation
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justices who took a different approach and felt should be more cautious- apply on a case by case basis
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bill of rights and its application today
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Today, most provisions of the bill of rights apply to the states
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Duncan case (selective incorporation)
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duncan driving his car, sees 2 cousins getting into an argument with white kids from cousins school. Racial issues in school. Gets out of car, talks.. As duncan walks away, he slaps on the elbow. Does NOT sound like he HIT him. Duncan charged with simple battery (misdemeanor punishable up to 2 years in prison 300 dollar fine) Duncan wants a jury- they agreed his conduct didn’t meet the elements of the crime.Believes being racially discriminated, wants a jury to listen and nullify (ignore the law- yea you did it but this case shouldn’t have been brought in the first place and punish prosecutor by finding duncan not guilty)
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duncan case continued
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At this time, not allowed jury bc Louisiana says get jury trial under state if serious or capital. Here however, its simple battery. Gets to SC: apply rights to jury trial to apply to the states? Comes from 6th amendment… should apply to duncan
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duncan test
how to selectively incorporate and apply to the states |
#1- look at common law.- why? shows where we were which tells us what was in the head of the drafters
#2- what are the states around the country doing in terms of this right to a jury trial? Come to the conclusion most states offer right to jury trial at least for some crimes. Why look to states?- if states are a trend in that direction its not such a radical change. Feel more comfortable imposing duty on the state as a result. States might feel fed government is overreaching and burdening the states, but maybe not |
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duncans argument for allowing a jury trial on a case by case basis
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right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions .
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Most criminal cases prosecute at state level and then come to fed courts review. Will they review all those cases, or are there limited?
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Limited in terms of fed. Const. law.
fed court cant review state conviction if it doesn’t include federal law. Most criminal cases involve issues of 4th 5th and 6th amendment issues. |
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how does state court judge insulate his opinion from being heard by the feds?
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doctrine of adequate and independent state law grounds
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doctrine of adequate and independent state law grounds
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Promotes comity and prevents advisory opinions by federal courts
If its clear to judge states only apply state law then feds will keep out of it. But if state uses fed constitution, then feds can get involved |
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example of doctrine of adequate and independent state law grounds
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d properly seized and conviction should stand. Want clients case to get to fed ct. can feds ct hear case? Yes. Fed constitution is involved. Fed ct will have jurisdiciton and see if states did right thing
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Federal courts will presume federal constitutional law is implicated when state court decision
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“fairly appears to rest primarily on federal law,”
or is “interwoven with the federal law,” or is ambiguous re: use of federal law (If theres any ambiguity, then fed cts will assume fed const applies and will review it) |
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if we dont use this doctrine, then “plain statement rule” applies
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brought on by states. Must write opinion relying solely on state law
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supervisory powers
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Powers come from U.S. Const. Art. III §1
Former C.J. Rehnquist: “The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals.” s.c. is saying they are in charge of what goes on in lower fed cts and therefore will review whatever they want coming out of fed cts just to check and make sure its ok. Authority comes from s.c. because they interpret and make up rules in their court, as well as lower courts |
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4th amendment
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"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
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preliminary questions to ask when theres a 4th amendment problem
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1. Is there physical evidence being used against the defendant by the State in its case-in-chief that is the product of the search and seizure?
2. Did a state actor perform the objected-to activity? 3. Does the defendant have standing to make a challenge? |
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regarding state actors
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State actors= cops, undercover agents, public school teachers
Does not restrict private actors!- private actors can become a state actor in specific situations ex: (roommate helps cop build case, totality of the circumstances: acting at gov. request, act with purpose to be a govt. actor, compensation given, relationship between individual and gov, when contact made) |
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standing
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This defines who gets to come to court and claim a violation has occurred.
in order to have standing, the person directly injured must raise the claim that their rights must have been violated- the illegal search must infringe on his own reasonable expectation of privacy. 4th amendment rights are personal. ex: Diana driving car and wrongfully stopped. Car searched and drugs found. She has standing. Swedlow steals car and same situation, then no standing- if you don’t own the car, you cant challenge your 4th amendment rights |
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primary 4th amendment questions
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1. Was there a search or a seizure?
2. Was the search/seizure reasonable or unreasonable? 3. If Warrant, was it Properly obtained, properly executed and/or good faith? 4. If No warrant?-Is there a legitimate rationale for the warrantless action? (an exception) 5. If search/seizure unreasonable, what’s the remedy? |
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remedy for unreasonable search/seizure
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4th amendment Protects against unreasonable searches and seizures, but the text doesn’t define what a search seizure is, or whats reasonable or unreasonable. Doesn’t define a remedy or even exclusions. so if you are subjected to unreasonable search and seizure there is no remedy!
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what results from an unreasonable search/seizure?
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Basic- suppression of evidence or application of exclusionary rule
If ct finds unreasonable search for seizure, evidence will be suppressed and prosecutor cant use it in the case in chief (states primary case against d) NOT THE WHOLE CASE |
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Mapp v. Ohio
(exclusionary rule) |
basic facts: police looking for guy suspected of bombing. Believe he stays at mapps house. Cops come without a warrant she refuses entry. They conduct further surveillance, come back with a blank piece of paper pretending to be a warrant, she snatches it and places it in her breast. Cops try to snatch it back. they handcuff her to a stable place to hold her.Looking for a bomber, but they really look for documents. Beyond the scope.. Discover obscene materials.
Mapp needs evidence to be suppressed- needs an exclusionary rule (which does apply to federal actors) exclusionary rule didnt exist at the time- no way to suppress the evidence and is therefore subject to unreasonable search and seizure and NO remedy. Mapp is asking to apply exclusionary rule to the states. Court says ok, but how? Look at a series of cases, more than half of the states have adopted exclusionary rule |
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exclusionary rule
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judicially created rule whose purpose is to:
#1 deter police misconduct #2 promote judicial integrity . Today, #2 has been abolished. Since judicially created, not in text of constitution, which could be a problem (can be changed) Mandates suppression of evidence at issue from state’s case-in-chief pretty much only applies to 4th amendment |
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Problem with exclusionary rule
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theres contraband involved, so why let them free when we know they have broken the law!
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Problem with not applying exclusionary rule
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will not deter future wrongful conduct because no stake in the outcome
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Silver platter problem
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feds and states working together allowing states to do feds dirty work
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wolf v colorado
(exclusionary rule n/a) |
refused to apply exclusionary rule to the states. Why? Because most of the states in 1949 had rejected the exclusionary rule and didn’t want that rule operating in their jurisdictions and will not impose to the states.
2/3 states refused exclusionary rule |
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Without exclusionary rule, what could dolly mapp do
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Sue police for trespass. problem with this- gov. actors immune to tort suits, NO MONEY FOR THE ATTNY! Therefore, wolf v colorado will be rejected and exclusionary rule will be applied to the states
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Composition of court in 1949 and 1961
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BIG CHANGE in composition of court between these 1949 opinion and 1961 opinion
Justice black- “strict constructionist”- firm believer in the text alone of the constitution. 4th amendment says NOTHING about exclusionary rule and therefore should be no exclusionary rule. But he looks into 4th with the 5th, and he believes people should be entitled to remedies Justice harlan, frankfurter, whittaker concerned with stare decisis- have an opinion out there that people can rely on Scalia believes exclusionary rule should be a LAST resort |
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times we wont use exclusionary rule
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1. grand jury
2. Civil proceedings (tax evasion) 3. civil deportation 4. federal habeus corpus 5. standing |
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Test for searches: KATZ
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Defendant must have:
1. “exhibited actual (subjective) expectation of privacy 2. that society is prepared to recognize as ‘reasonable’” |
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Katz Case
(searches) |
katz is a bookie. Fbi put listening device on the outside of the phone booth to listen in so they don’t penetrate (If no trespass, no search, and conduct need not be reasonable or unreasonable because 4th amendment will not apply)
Case gets to supreme court- decides they don’t care about the phone booth or the issue of trespass, want to talk about the privacy of the PERSON since 4th amendment protects people, not places. if you put in the public, its not private, but if you try to make it private it may be private consequence- there may be a search, but the search MUST be reasonable. Katz demonstrated an expectation of privacy by closing door. Ran katz test and determined he was entitled to privacy so it was an unreasonable search |
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public exposure
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What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
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where there is no REP
(no 4th amendment protection) |
Curtilage
Aerial surveillance of curtilage- Open field- Abandoned garbage Statements made to undercover agents/ false friends Electronic tracking devices/ enhancement devices Dog sniffs On site chemical tests used in public places Sqweezing/ manipulating a bag Dialed phone numbers intercepted by the government is not a search |
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curtilage
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area immediately surrounding house where homeowners intimate activities continue.
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aerial surveillance of curtilage
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what you expose to the public cannot be expected to be kept private. If visibile to the naked eye, warrant is not required, and is not a search
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California v. Ciraolo
(aerial surveillance airplane search case) |
airplane flew 1000 ft over house. See weed growing on property. Search? No- why? Naked eye: cop can see drugs with naked eye, but really court says airplanes fly all the time over property and you have no reasonable expectation of privacy. Cop cant come on your property, but he can fly over.
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florida v riley
(aerial surveillance helicopter search case) |
Cop in helicopter @ 400 ft. from open field and sees weed in a greenhouse with an open roof. Flying over house is not a search and did NOT violate FAA relations- defines what is safe/unsafe in terms of aircraft travels and had no expectation of privacy. we assume people ride around in helicopters , which means its open for the public to view
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open field
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not your home, not your curtilage, but rather property that you own
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oliver
(open field search) |
No trespassing signs everywhere. Fence surrounding open field containing marijuana. More than a mile away from house. Tried to keep as private as possible. Cops get through fences and find pot. 4th amendment protects persons houses papers and effects- open fields are not on this list- not subject to protection
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Abandoned garbage
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once garbage put on street, its put in public domain and anyone can go through it
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cali v greenwood
(abandoned garbage) |
police suspect drug activity in home. Cops ask garbage man to turn over the garbage placed outside on the street on garbage day.
Opaque plastic bag NOT on curtilage of home but rather on public roadway. Uses information from garbage as basis to get a warrant to search house. Search find all kinds of drugs. Even though had expectation of privacy (opaque bag, don’t expect people to go through trash), once its out of your hands, its no longer private |
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Statements made to undercover agents/ false friends
(hoffa case) |
d says something incriminating and is overheard by false friend (snitch). Is the act of overhearing and relaying to authorities a search for 4th amendment purposes? No. what you knowingly expose to the public is grounds for any person to turn around and tell someone. No expectation of privacy
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Electronic tracking devices/ enhancement devices
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use of enhancement device is a search if info couldn’t have been obtained by use of natural senses from public vantage point and device reveals sufficient intimate details
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U.S. v. Knotts
(tracking devices) |
police place a beeper/gps device in a can of chemicals. This is given to persons suspecting wrongdoing and track where person is going. Not a search because they could have done it without the beeper. Police could have obtained the location in other ways.
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us v. karo
(exception to enhancement device cases) |
ether case. Snitch supplies ether to karo and his friends. Agree to swap a can of ether for a can that will be supplied for karo. Paint it to look like the other cans. Police track cans of ether as they go from place to place. The police lose sight of the can of ether and the only way they can find the ether is by using the device. No other way for police to have tracked. Placing the beeper in the can in the first place doesn’t constitute a search. Does actual use of beeper constitute a search? Yes because beeper reveals info police could not have gotten anyway. Must look at what information is actually being revealed*** REP
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Kyllo case
(thermal energy exception case) |
cop points device at house which shows an excess of heat. Given tip, checks out utility bill. Cop believed had PC to search home, gets warrant, executes it and finds pot as expected.
This is just like a dog sniff test- just detects heat in the air, just like dog detects scent like microphone picks up noises. Devise only tells us from the outside. Court says what happened to kyllo was a search, and needed a warrant. Want investigate whether warrant was legitimate.*** REP |
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dog sniffs
US v. Place (airport sniff) |
place travels through airport, drug sniffing dogs smells bag, the dog reacts and smells drugs.
Court says theres NOTHING like a dog sniff-they just have the ability to smell for the presence of narcotics. Because this is so unique and so limited, the sniff is not a search. The sniff constitutes PC if you can show the dog is well trained and has a good track record |
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illinois v. caballes
(vehicular dog sniff) |
guy pulled over for speeding. Cop calls for backup, officer who receives call is part of drug team so he decides to come by and bring a drug sniffing dog. Place already ruled sniffs aren’t searches. The sniff occurred at same time first officer was legitimately seizing his driver. Dog sniff didn’t add any extra time to the seizure.
This traffic stop lasted as long as it needed to and didn’t last any longer than needed. The sniff, which wasn’t a search, didn’t lengthen seizure. |
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On site chemical tests used in public places
(Jacobsen coke in car case) |
police officer pulls someone over and finds a chemical he believes to be cocaine.
Can do a quick test on the side of road to determine if baking powder or coke. Courts say this test does not constitute a search |
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manipulating/sqweezing bag
Bond case (exception) |
facts- luggage above in overhead compartment of greyhound bus. Officer squeezes bag and feels brick like object. Cop eventually gets consent from bond to open the bag, which waived his 4th amendment right to a reasonable search.
Wasn’t a search looking in bag after consent, it was a search when bag was manipulated by officer. Since it’s a search, it must be reasonable, and here it was not. Had officer touched or pulled bag by handle, this would not constitute a search. Its the manipulating that’s the problem. Reasonable person knows luggage will be poked and prodded, but they don’t expect a cop to manipulate it. *** REP |
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dialed numbers
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Dialed phone numbers intercepted by the government is not a search
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when do seizures occur?
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Seizure occurs when individual is either physically detained or submits to authority
Seizure occurs when reasonable person would not feel free to terminate the encounter with police |
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casual encounters
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Officer asks what time it is, or if that’s your car, what are you up to. not a seizure
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Full custodial arrests
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they have you in handcuffs. You have been seized
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California v. Hodari D
(seizure case) |
Officer approaches hodari d (juvenile) and takes off running. Cop chases. Tosses drugs from pocket, arrests him, and takes him back to where the drugs were dropped.
For seizure, need either physical contact or submission to authority. Its not a seizure when an officer shows his authority and the suspect doesn’t submit |
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Look for intentional contact by police
(brower v. county of inyo) |
Driving fast, smashes into 18 wheeler, dies.
Why would gov. attny make argument there was not a seizure here? No physical contact. Justice Scalia rejects this- you can seize someone without touching them. Look to see whether or not officers acted intentionally. |
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Brendlin v. California
( bus seizure) |
If driver is seized, are passengers also within the meaning of the 4th amendment? Yes.
But a bus its different. It’s the nature of the travel |
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us v. drayton
(bus case with cops in front and back) |
another bus case. Officer in front and back.. Exits are being blocked. Officers approach from the back and speak politely and softly, 12 to 18 inches away..
Officer trying to be professional? Not told about right to refuse consent. Asks to search bag, finds nothing. Asks to search person (baggy clothes to hide drugs), consents. Officer finds cocaine taped to legs. 11th circuit comes up with per se ruling which says individual in this situation are seized unless told of right to refuse consent. Courts don’t like per se rules, and this will be rejected. Courts instead adopt a totality of the circumstances. Didn’t believe there was a seizure. |
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florida v bostick
(seizure case) |
facts: Agents approached bostick and didn’t have any suspicion. Describe cops very specifically. Sending a strong message that these officers mean business. Officer comes up to bostick and asks to see his bus ticket and license, everything matched up. Asked to search bag, told could refuse to consent, did not threaten but consents to the search because hes afraid he will be stranded in florida. Cocaine found in the bag.
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bostick seizure test
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1. whether a reasonable person would feel free to leave when that officer is standing there
2. and would a reasonable person feel free to decline the officers request/ the encounter? (what reasonable person would decline the request! Were talking about a reasonable innocent person) |
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if you do decline the encounter, can inferences be drawn from that?
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Legally, no. Suspicion is not from exercising legal right, it’s the procedure (watching you sweat, intimidation)
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with seizures....
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Need to look at the totality of circumstances and see why that person doesn’t feel free to leave.
Is it because hes on the bus? Because officer has him in a sticky situation like a roadblock or blocking him? |
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how intrusive is the seizure?
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More intrusive, higher level of proof, like an arrest (need PC).
Less intrusive, lower level of proof, like checking luggage or pulling over to ask questions, (need RAS) |
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searches, seizures, and PC
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All searches and seizures in order to be reasonable MUST be based on PC, with the exception of Terry
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PC for a seizure
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fair probability that a crime has been committed and the person to be arrested/seized committed that crime
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PC for a search
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fair probability certain items are the fruits, instrumentalities or evidence of crime and that these items are presently to be found at a certain place
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PC
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Fluid concept, assessed by totality of circumstances
PC can be based on anonymous tip, officer’s observations, witness/victim’s statement, etc. Can be assessed post hoc (devenpeck) |
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searches v. seizures
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we search persons, places, things…
we seize items |
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aguilar/spinelli test
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there are 4 pieces of information in affadavit to show probable cause.
1 2 and 3 mean nothing (not enough). 4 deals with anonymous tips- how can we rely on their testimony? No longer look at totality of circumstances, and instead: #1 Look at basis of knowledge #2 veracity (track record/ truth telling ability). Problem with this test- snitches tend to be criminals, involved in the transaction, who are looking for a better deal/way out. This test is hard to apply, which is why it was eliminated in Illinois v. Gates |
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When PC is based on 3rd party statement, be sure to look for:
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1. Predictive detail, known to one intimate with the criminal activity
2. Detail that could be observed by anyone, standing alone, is not enough 3. No “bald and unilluminating” assertions 4. Look to basis of tipster’s knowledge and veracity of tipster (aguilar spinelli test/ TOC) 5. Even if tip does not form PC, police may still investigate based on tip! |
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nathanson v. US
(PC) |
cop gets search warrant based on affavadit in support of probable cause and tells magistrate had probable cause because he had cause to suspect certain merchandise is deposited and contained within premises of nathanson.
Why is this not probable cause? Its conclusory, subject to abuse, too subjective. Need more than just the gut/trust. We need reasons for invasion of privacy for the defendant |
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draper v. us
(PC) |
officer gets tip from informant, officer develops what he believes to be probable cause.
Predictive detail- what will I wear in 3 days. Suggests informant knows something, or is involved in some way. Why is clothing important? It’s a part of the deal. Want certain amount of detail and want it to be particular to the person in suspicion (we need specific facts to be given by an intimate person, with knowledge of future details) |
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illinois v. gates
(PC) drug deal in florida |
Anonymous letter talking about sue driving to florida, lance flying to florida, picking up weed, and lance driving it back to illinois, sue fly back. in florida, stay one night in motel, find car driving northbound to illinois. But they see that sue drove back and didn’t fly.
All the info presented to magistrate stating have probable cause based on letter, and their observation. Magistrate sign off on it. Police waiting at house, search house and car and find drugs and money. Rehnquist says the test should be when assessing probable cause should be totality of circumstances, not the 2 prong test. He believes that when were dealing with anonymous tips, the info is relevant and spinelli test is important, but we also need to look at the overall big picture. |
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devenpeck v. Alford
(PC) imitation cop |
Pulls someone over pretending to be a police officer. Legitimate officer sees this and pulls over. Once this happens, alford takes off. Officer radios someone pretending to be an officer is running around. He is eventually pulled over, and sees car is rigged with police lights, handcuffs, police radio, and a tape recorder.
Legitimate officer believes need 2 party consent to tape record a conversation and arrests him for violation of privacy act-not for police impersonation. Officer misunderstood the privacy act (its actually 1 person consent). Basis for alford arrest is incorrect. Unreasonable because no probable cause to arrest, however, the officer need not be right, he needs to be reasonable. Arrest was reasonable because he was committing a crime! (not crime A, but crime B). Even though a and b have nothing to do with each other that’s okay, as long as hes arrested for something. |
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maryland v. pringle
(PC) passenger arrest for cocaine |
pringle was passenger. Driver pulled over, opens glove box, out rolls wad of cash. Runs tags/ outstanding warrants. Wants to give him a warning. Asks to search car, says yes. Officer finds 5 baggies of cocaine in armrest.
Officer asks who drugs belong to, arrests all 3 (seizure) which means it must be reasonable (based on probable cause). Pringle, interrogated, admits the cocaine belongs to him. Not trying to suppress cocaine because there was consent to search the car by the owner, tries to suppress the confession. Based on totality of circumstances, a fluid concept, police had probable cause to arrest any or all 3. |
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warrants
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Warrant comes from the text of the constitution
“… no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched…” Links warrants to probable cause in order to be obtained Oath or affirmation- if you lie, you face perjury Place to be searched must be described with particularity. Why? Limit scope of search to show where cop can/cannot search. It also tell the homeowner exactly where your going. Also allows officers to focus their investigation |
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warrants and police reasonability
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With warrants, police don’t need to be correct they simply need to be reasonable
Affadavit refers to the probable cause aspect |
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duke case
(warrants) |
officers had probable cause to believe crime had been committed.
Warrant was valid even though it turns out girl made up story . |
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whats in the warrant
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Final 2 pages have inventory of seized property- no requirement in constitution to do this.
This exists to protect police officers from false claims of theft. Describes the crime, the items to be seized that relate to particular crime, and has signatures from police officer and magistrate |
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if there is a warrant...
(questions to ask) |
1. Was it properly obtained?
-Based on probable cause -Presented to/reviewed by a neutral & detached magistrate -Describing w/ particularity the place to be searched/items to be seized 2. Was it properly executed? -K & A and time of day -Stale warrants -Scope of warrant not exceeded 3. Good faith exception? |
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was warrant based on PC?
(recap) PROPERLY OBTAINED |
1. based on fair probability that a crime has been committed and the person to be arrested/seized committed that crime (seizure)
2. fair probability that certain items are the fruits, instrumentalities or evidence of crime and that these items are presently to be found at a certain place (search) 3. Assessed by totality of circumstances 4. Can be based on anonymous tip, officer’s observations, witness/victim’s statement, etc. 5. if PC is based on anonymous tip: i. Court will assess on totality of the circumstances ii. Predictive detail, known to one intimate with the criminal activity iii. Detail that could be observed by anyone, standing alone, is not enough iv. No “bald and unilluminating” assertions v. Look to basis of tipster’s knowledge and veracity of tipster vi. Even if anonymous tip does not form PC, police may still investigate based on tip! |
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was the warrant presented to/reviewed by a neutral & detached magistrate?
PROPERLY OBTAINED |
1. Magistrates just need high school degree, no need to be a lawyer
2. They just need common sense judgment to determine probable cause and sufficient training and ability to make probable cause determination. 3. Magistrate cannot work on contingency 4. Magistrate shopping prohibited- getting turned down and asking a different magistrate without presenting intervening information. If told warrant is insufficient, he has an obligation to fix it before presenting to another magistrate 5. Magistrate may not join in with police investigation. They are judicial officers and cannot participate. They must be neutral and detached |
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does the warrant describe w/ particularity the place to be searched/items to be seized?
PROPERLY OBTAINED |
Particularity clause
1. “no warrants shall issue, but … particularly describing the place to be searched, and the persons or things to be seized 2. In general, look to see if police have been as specific as they can be, under the circumstances |
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remedy for improperly obtained warrant
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If defendant alleges fault in the affidavit of probable cause, he has burden of proving by preponderance intentional or reckless regard for the truth.
2. If this can be proven, any evidence seized as a result of the false statement would be suppressed |
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Knock and announce
PROPERLY EXECUTED |
1. The “common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment”.
2. Drafters of bill of rights were concerned about government ramming down door and potential physical altercations, so as a result adopted knock and announce. 3. Inevitable discovery will trump knock and announce requirement (they were going in there anyway, so it doesn’t matter that they violated the knock and announce standard by only waiting 2 seconds) 4. Note that, regardless of Hudson, K&A not required in many instances (exigency, etc.) 5. Time of day restrictions- kind of like knock and announce. Preference of daytime warrant execution- safer for them and safer for people involved. Although sometimes would prefer element of surprise a. Focus is always reasonableness b. Look to relevant state statutes. Some states have rules ( in Swedlow’s jx, can only execute warrants 9 am-9pm. However, there are exceptions) c. Hudson v. Michigan (2006) likely changes this analysi |
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time of day restrictions
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kind of like knock and announce.
Preference of daytime warrant execution- safer for them and safer for people involved. Although sometimes would prefer element of surprise Focus is always reasonableness Look to relevant state statutes. Some states have rules ( in Swedlow’s jx, can only execute warrants 9 am-9pm. However, there are exceptions) |
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hudson v. michigan
(time of day) |
Gets rid of time of day and knock and announce
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stale warrants
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PC for search is old and no longer reliable
PC ceases to exist, evidence is destroyed PC for searches go stale, PC for arrests rarely go stale (identity of a person doesn’t change when arresting a person) |
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was the scope of the warrant exceeded?
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1. The reason we describe with particularity is so homeowner and police know what there looking for.
2. If looking for a person, cant look through filing cabinet or kitchen drawers. Search is limited to very specific areas 3. When theres no warrant for a search, ask: is there rationale for the warrantless action? |
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good faith exceptions
(when we dont need a warrant) |
1. Situation-specific exigency
2. Plain view 3. Automobile exception search 4. Warrantless Arrests 5. Searches Incident to Lawful Arrest 6. Inventory Searches 7. Buie Sweeps 8. Administrative Searches 9. Terry Stop and Frisk 10. Special needs searches (Roadblocks, Non-police searches, School searches) 11. Border searches (no assigned reading) 12. Consent searches |
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situation specific exigency
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Emergency that authorizes cop to act without a warrant
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most common examples of situation specific exigency
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1. Hot pursuit of fleeing felon/ need to prevent suspect’s escape
2. Imminent destruction of evidence 3. Risk of danger to police or others 4. Community care-taking |
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mincey case
situation specific exigency |
all cops know is gun shots and are looking to make sure people are okay.
Homicide crew comes and searches for 4 days and seizes information without a warrant. Mincey is concerned with the homicide detectives search and says the search was unreasonable because no warrant, and no exception (exigent circumstances no longer exist) |
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mendex v. colorado
imminent destruction evidence |
guy who lived in hotel
Weed smells in the hall Exigent circumstance: imminent destruction of evidence. When officer has reason to believe there will be imminent destruction of drugs, theres an exigency |
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oj simpson case
community caretaking |
Even though no warrant, exigent circumstance was community caretaking (immediate threat to the public)
How are they taking care of him? They were concerned and assumed he was at risk because his wife was, thought that simpson also may have been killed like his wife. Blood on the bronco heightened the concern. Simpson prime suspect? Looked at the fact he was strong (capable of the murder/ decapitation) and officer who took call was well aware of prior domestic disputes. |
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welsh v. wisconsin
hot pursuit |
Drunk driver abandons car and walks home.
Officers come in house without a warrant. Cops find him asleep naked on the bed. Officers believed destruction of evidence (alcohol would metabolize in his blood stream) danger (drunk driver on road). Searches and seizures in the home without a warrant are presumptively unreasonable- must be a good reason to go in! |
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utah case p. 100 supplement
kitchen fight community caretaking |
noise, fighting in a kitchen. Mixture of juveniles and adults. Fridge moves punches thrown. Cops knock and announce and don’t hear cops.
Cops argue risk of danger to others/community caretaking. Officers subjective opinion doesn’t matter- we look at if they were objectively reasonable. That’s all we care about. Court says this isn’t serious enough to allow cops to enter without a warrant at the most it’s a battery/assault. |
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illinois v. mcarthur
exwife trailer park destruction of evidence |
officer acted and then go get a warrant. Woman says moving out of trailor because of violence please monitor and make sure no violence. She tells cops theres weed under couch.
Officer knocks on door McArthur asks to search and says no. at this moment hes standing outside trailer. Told he cannot go inside. Other officer goes and gets warrant. Based on wifes allegations, officer believes shes credible and has probable cause. 2 hours later cop comes back with warrant. Lets McArthur go in and use restroom and watches to make sure he doesn’t destroy evidence. Seizure is based on imminent destruction of evidence. Find the weed under the couch. Officer only took 2 hours to get the warrant which was reasonable and not that long in duration. Court ruled that the warrantless seizure was permissible based on exigency. |
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exigencies
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Exigencies must be inherent to the situation; police cannot create the exigency cant manipulate the exigency and then use that exigency to support their warrantless activities.
Exigency rises and falls based on the facts Exception ends when exigency ends. This is what mincey is all about (Guy is dead, exigency is over) |
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plain view exception
requirements |
1. officer in lawful vantage point to see evidence (wherever your standing you must be there legitimately);
2. right of access to evidence (in order to get to evidence, officer need not engage in further search activities); 3. right to seize evidence be readily apparent (must have probable cause) |
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plain view continued
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Officers allowed to seize evidence when searching for one thing and come across another
discovery of evidence under plain view need not be inadvertent Plain view extends to other senses (smell, touch, etc.). – officer smells weed in apartment/car/etc. Officer pats person down and feels what officer believes in light of training and experience to be a handgun. Drug sniffing dog does not apply to plain view because a dog sniff is not considered a search |
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plain view example
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pulled over for speeding
see joint on person of passenger and officer has probable cause to believe that it is what it is (weed) |
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arizona v. hicks
plain view turntable |
Someone fired gun through floor of apartment. Cops are called, come in without a warrant.
Exigent circumstances? Yes. Cops don’t find mr. hicks. Shitty apartment with very nice stereo equipment – cops thinking perhaps stolen because heard report of stolen stereos in the area. Cop walks up to turntable, cant tell by looking that its stolen, so he moves the turntable gets serial number calls it in and finds out the turntable is in fact stolen. He didn’t just come across evidence, he engaged in search activity that he wasn’t allowed to do. Says the act of turning the turntable is a search and therefore officer didn’t see evidence in plain view. Since it’s a search, it must be reasonable, and officer msut have PC. Scalia says not in plain view **If you have to manipulate the object to determine whether you have PC, you don’t have enough for a plain view search |
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horton v. california
plain view the hunch |
discovery does not need to be inadvertent.
Officer had probable cause to believe would find certain items. Had hunch, but wasn’t certain. Executes lawful search warrant finds items believed he would find, but also finds what he had a hunch about. This was okay to seize. Officer doesn’t need to be completely surprised. If he thinks he will find and he meets the requirement of plain view, then he can seize the evidence. |
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automobile exception
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Due to “ready mobility” in, and decreased expectation of privacy associated with, automobiles, exception permits virtually limitless search of automobile;
scope of search is limited by the officer’s PC (Reasonable to search car without a warrant because cars are readily mobile). Comes from carroll case. if officer has probable cause to search automobile because of ready mobility of automobiles he doesn’t need to get a warrant instead he can search car as far as his probable cause will take him. If officer has PC to believe he can find evidence in the car, no need for warrant |
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chambers v. maroney
automobile exception |
police can search car without warrant even if car is in police impound lot
Automobile exception applies- car is always mobile since it’s a car. Whether car in cop custody or on side of road, auto exception still applies |
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chadwick
closed containers in car |
footlocker in trunk of car
Court ruled police need warrant to open footlocker. |
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sanders
closed suitcase in trunk |
automobile exception allow officers to open?
No. you need warrant to open suitcase |
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Wrapped bricks of marijuana in closed container in trunk of car
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cops need warrant to open container, but not to search car
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california v. carney
motor home |
tried to entice young boys into his home to molest.
Argued this is a home, not a car. Court ruled it’s a car- READY MOBILITY (capable of mobility) and REDUCED EXPECTATION OF PRIVACY. Just need PC to search the car |
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basic rule for containers in cars
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ask: does officer have car general probable cause or container specific probable cause?
If officers probable cause is generally directed towards car, can search car without warrant because cars readily mobile. But if specifically directed towards closed container, automobile exception doesn’t apply and would need warrant to search |
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ross case
drug deals out of trunk |
where officer suspects someone is dealing drugs out of the trunk of his car, officer has car general PC and can search car without a warrant
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California v. Acevedo
fedex weed case |
plan to send weed through fed-ex. Cops know about this. Acevedo has paper bag in hands and suspect theres weed in the bag. Puts bag in the trunk of his car and drives off.
Police stop him and search the trunk and find the weed. Police can search containers in an automobile as long as the search is supported by PC |
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wyoming v. houghton
no id/ track marks |
extension of automobile exception-
3 people in front seat of car. Pulled over for speeding and faulty brake light. Sees needle in drivers pocket. 2 passengers told to get out of car. One claims to not have id and gives a fake name, sees track marks on her arms. Officer searches her purse and sees her id in her wallet. Does Automobile exception extend to closed containers that the officer knows belongs to passengers? Scalia says looks at probable cause see where it takes you then search. This will direct the scope of the search. So why did they have probable cause to search her purse? Officer had to believe she wasn’t telling the truth which generated the probable cause to search the bag for the wallet. Why did officer think she was lieing? Because she lies to his face! Since he believed she was lieing he had probable cause to believe she was lieing and could go into the purse. Found meth in the purse |
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scope of search
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Search can be as broad or as narrow as PO’s PC.
Always look to PC to determine proper scope of search |
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warrantless arrests
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Look for: location of arrest and statute authorizing warrantless arrest
If arrest in public, warrantless arrest is allowed when there is exigency or PO acts pursuant to a statute |
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us v. watson
stolen credit card |
postal inspector gets tip about stolen credit cards. Set up exchange and mr watson person selling the cards will presumably be arrested.
Officer immediately arrests him searches his person and asks to search the car. Cop searches car and finds evidence. Why did inspector think he had authorization to arrest without a warrant? There was a statute in question- 18 usc 3061 that authorizes warrantless arrests. Statutes are presumed constitutional. Look at common law rules- you were allowed to arrest without a warrant if the act occurred in arresting officers presence which is why they presumed the search was reasonable. The fact arrest was in public is important because there are witnesses, so if there is police abuse others will see |
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low level offense warrantless arrest
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must have PC
be in public and permitted by legislature (statute) |
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atwater v. city lago vista
no seatbelt |
mom driving with kids, not wearing seatbelts. Pulled over officer knew her, previous exchange. Asks to see license says purse stolen.
Arrests her in front of children. Seizure without a warrant. Taken to jail and released. Charged with driving without a seatbelt fastened. She files civil rights action for her warrantless arrest. 2 aspects to her case: legal argument (seizure wasn’t reasonable under 4th amendment because officer didn’t have a warrant and nonlegal argument (not the crime of the century and officer was ridiculous in arresting her). Statute does authorize warrantless arrests, but common law would not allow this: not wearing a seatbelt is not considered breach of peace. Common law is important to look at, but not dispositive. So if the officer was authorized to make an arrest, the officers judgment shouldn’t be second guessed |
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with warrantless arrests, dont forget:
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look at reasonableness/ unreasonableness
warrantless arrests in the home are presumptively unreasonable |
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search incident to lawful arrest
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Assuming lawful arrest, you can do a search (authorized search of person and immediate area around them)
Wingspan test used to determine immediate control- how far can arrestee actually reach? must have post arrest probable cause within reasonable time frame reasonable time frame is 48 hrs An arrest that violates state law does not necessarily violate Fourth Amendment (steagold case- PC to arrest, not to search house) |
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For arrests in home and on street, Suspicionless search requires:
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1. valid arrest
2. Search be conducted relatively contemporaneous with arrest (must be timely depending on facts and circumstances). Officer cannot be at fault for the delay 3. Search be confined to suspect’s legitimate area of reach (wingspan, area of immediate control: your person, within reach, but really need to look at the place where person is arrested) |
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Two rationales for search incident to lawful arrest:
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1. Officer safety: officer can disarm so that doesn’t pose danger to cop.
2. Preservation of evidence |
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chimel
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cannot extend search to cover entire home.
Can only search wingspan/lunging distance incident to arrest can do a bui sweep if theres reasonable suspicion of others |
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bui
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if search incident to arrest in the house, can sweep for others who are armed and dangerous if you have RS
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For arrests where a vehicle is concerned, apply elements 1, and 2, but for 3:
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say that the search restricted to “passenger compartment” of vehicle (front seat back seat and glovebox. “trunk” of station wagon is considered passenger compartment).
Recent occupant |
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thornton v. us
recent occupant |
Rehnquist says searches incident to arrest of a passenger compartment are reasonable if arrestee is a recent occupant of the car.
When an officer has probable cause to believe additional contraband in the car and know he just came from the car and that there are more drugs in the car, pursuant to the automobile exception, he can search the car. |
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gant
recent occupant |
officer approaches Gant outside of car.
Search incident to arrest is only reasonable if arrestee poses threat to officer or officer believes will find evidence relating to the arrest in the car. court holds that search of passenger compartment of car permitted only when reasonable to believe that: 1. recent occupant has chance of accessing car 2. or that vehicle contains evidence of arresting recent occupant has chance of accessing car 3. or that vehicle contains evidence of arresting offense |
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moore
suspended license |
drove with suspended license.
State statute in question did not authorize arrest. Though wasn’t a statutorily permissible arrest, it was constitutionally proper because they had probable cause to believe he was driving without a license. The 4th amendment cares about probable cause standard, not state. MAKE SURE ARRESTS ARE CONSTITUTIONALLY VALID (probable cause to believe the offense has been committed) |
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inventory searches
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Perform inventory searches when theres a statute/code?
Occurs when you arrest someone and you need to do an inventory search of their person/belongings Search performed without showing of any probable cause or other suspicion Search does not have to occur in particular location |
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with inventory searches, look for:
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1. Presence of administrative policy governing search and
2. Actual arrest |
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inventory searches exist to
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1. protect police from real and false claims of theft
2. protect suspect’s property 3. prevent introduction of contraband into jails 4. to help ascertain suspect’s identity 5. and to protect officer from harm |
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bui sweeps
(for arrests in the home) |
Permits limited search for “individuals posing a danger to those on the arrest scene”
extension of wingspan test. When you arrest someone in home the officer can always conduct search incident to lawful arrest and under bui can expand to areas and places where he thinks someone may be hiding if he has reasonable suspicion to believe that event may occur Must have some level of suspicion a person will hurt the officer Looking for people, not items But always remember:“[S]earches and seizures inside a home are presumptively unreasonable” |
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authority to sweep
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Authority to sweep is not automatic (as w/ search incident to lawful arrest)
Authority to sweep requires: “specific and articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonable prudent police officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene” |
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administrative search
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Search performed without showing of traditional-type probable cause
“Probable cause” for administrative search is generated from administrative code requiring inspection or administrative action |
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camara v. municipal ct
administrative searches |
because there are certain activities that are so important (dwelling house with hundreds of people to be safe), administrative code authorizes periodic searches of the premises and the search is reasonable as long as searching official follows the code.
Code regulates when and how fire marshall can search and as long as he follows rules, the search is deemed reasonable. In a home without a warrant. Court says these searches are based on probable cause, but not the kind of probable cause we have seen. Its probable cause generated by the code. Courts do not call this a suspicionless search |
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with administrative searches, look for:
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1. Presence of administrative policy and
2. Administratively regulated activities |
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examples of administrative searches
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show up in the context of health and safety.
Fire extinguishers in the hallway, smoke detector working, housing codes, food inspection. Authorized because pursuant to the code On exam, if given snippit of a code, big sign that either were dealing with administrative search or inventory search |
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standard for terry stop
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RAS this person has committed or will commit that crime
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terry stops
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Permits brief seizure short of arrest and – if warranted based on suspicion – a limited frisk of suspect’s person for weapons.
Authority to seize/search is based on “reasonable articulable suspicion” can articulate/convey to a 3rd party in a suppression hearing This is a miniature version of probable cause. “Some minimal level of objective justification” Detention can last as long as necessary to “confirm or dispel” PO’s suspicion, but no longer look for prolonged detention!! |
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standard for terry frisk
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Must have RS this person is armed
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terry frisk
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Outer patdown of clothes… and if you feel something that MIGHT be a weapon, then the officer can go in, for their safety.
If you know its not a weapon and feel its drugs, can be brought in under plain feel Warren gives police a tool to conduct brief searches to investigate. But if officer finds nothing in course of pat down then your left free to go and does not continue further. However, if officers suspicion is further aroused and he has probable cause, he will arrest . Warren says this is the cost of living in our society Search incident to arrest is very different from a patdown |
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with terry stops, what must be reasonable?
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Reason for stopping, length of stop, and method used
terry stops are not very intrusive right to stop is separate from right to frisk, and right to frisk is for weapons only. |
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dunaway v. ny
terry stop |
Police suspected D but did not have PC for an arrest so they asked D to come with them for questioning.
not a terry stop because of location If looks like arrest smells like arrest it is an arrest |
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florida v. royer
terry stop |
police have drug suspicion, have suitcase, seized belongings, asked if could talk to passenger in room.
Issue of time and location. if it were a terry stop, it would be quick here not a terry stop, not quick enough |
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authority to sweep
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Authority to sweep is not automatic (as w/ search incident to lawful arrest)
Authority to sweep requires: “specific and articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonable prudent police officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene” |
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administrative search
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Search performed without showing of traditional-type probable cause
“Probable cause” for administrative search is generated from administrative code requiring inspection or administrative action |
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caara v municipal ct
|
because there are certain activities that are so important (dwelling house with hundreds of people to be safe), administrative code authorizes periodic searches of the premises and the search is reasonable as long as searching official follows the code.
Code regulates when and how fire marshall can search and as long as he follows rules, the search is deemed reasonable. In a home without a warrant. Court says these searches are based on probable cause, but not the kind of probable cause we have seen. Its probable cause generated by the code. Courts do not call this a suspicionless search |
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examples of administrative searches
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Administrative searches show up in the context of health and safety.
Fire extinguishers in the hallway, smoke detector working, housing codes, food inspection. Authorized because pursuant to the code On exam, if given snippit of a code, big sign that either were dealing with administrative search or inventory search |
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with administrative searches, look for:
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1. Presence of administrative policy
2. Administratively regulated activities |
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terry stops
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Not very intrusive
Permits brief seizure short of arrest and – if warranted based on suspicion – a limited frisk of suspect’s person for weapons. Authority to seize/search is based on “reasonable articulable suspicion” can articulate/convey to a 3rd party in a suppression hearing This is a miniature version of probable cause. “Some minimal level of objective justification” Detention can last as long as necessary to “confirm or dispel” PO’s suspicion, but no longer Look for: Prolonged detention |
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standard for terry stop
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RAS this person has committed or will commit that crime
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terry frisks
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Outer patdown of clothing… and if you feel something that MIGHT be a weapon, then the officer can go in, for their safety.
If you know its not a weapon and feel its drugs, can be brought in under plain feel Search incident to arrest is very different from a patdown Warren gives police a tool to conduct brief searches to investigate. But if officer finds nothing in course of pat down then your left free to go and does not continue further. However, if officers suspicion is further aroused and he has probable cause, he will arrest . Warren says this is the cost of living in our society right to stop is separate from right to frisk, and right to frisk is for weapons only. |
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What must be reasonable with a terry stop?
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Reason for stopping, length of stop, and method used
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standard for terry frisk
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Must have RS this person is armed
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us v sharpe
terry stop. driver drives off |
2 cars following each other one car drives off.
Terry stop continued in duration. Look to who bears fault in delay driver made stop last longer since drove off. |
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mimms case
passenger terry stop |
can terry stop a car and Officer can pull out passenger too
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michigan v. long
frisk of cars |
cops believe driver is drunk. see large hunting knife on the ground. Searched man and car. Found weed in the car.
Basis for arrest is for finding drugs in the car, not a DUI. Usually arrest then inventory car. This did not happen here. Terry frisks of cars are just as permissible as a frisk of a person but must have reasonable suspicion you will find weapons inside the car. Once the officer can articulate reasonable suspicion, he can search the car. Scope of the search? Places where weapons can be. WINGSPAN- immediate access |
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plain feel= plain view
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if officer while searching for weapons feels a crack pipe, he can go into pocket and retrieve item as long as 3 elements of plain view are met
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with terry stops, look for
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Problems associated with scope of search and
Application of other exceptions to allow expanded searches |
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florida v royer
terry stop |
police have drug suspicion, have suitcase, seized belongings,
asked if could talk to passenger in room. Issue of time and location. if was a terry stop it would be quick. here, it was not a terry stop, not quick enough |
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terry v. ohio
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An officer observed three guys doing what looked to be a "casing" of a jewelry store. He approached the men, asked them some questions, and frisked the men for weapons and found a gun on Terry.
The officer had reasonable suspicion that a crime was about to occur so he did not violate D’s 4th Amendment rights. |
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what is RAS?
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1. Officer observation of “casing” a jewelry store (terry)
2. Individualized behavior matching that of “known drug courier” 3. Flight from police in “high crime area” 4. Test; officer must be able to point to specific articulable facts which, together with rational inferences from those facts, reasonably warrants intrusion |
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what is NOT RAS
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1. Knowing of and speaking to known drug users
2. Bald and unilluminating assertions |
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florida v. jl
no RAS |
juvenile, tip carrying gun plaid shirt at bus stop. Lo and behold, they find the guy.
Rely on terry- reasonable suspicion to believe juvenile had a gun. frisk ok? No, tip was no good. tip combined with officer corroboration provides no reasonable suspicion. Problem is any person could know this information! |
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special need searches
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Searches where articulated need/purpose for search is separate from the ordinary needs of law enforcement
Whats traditionally considered search activity, but reason is for a different purpose than typically Conducted by state actor, but that state actor is not a cop |
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vehicle checkpoints
(special need) |
No suspicion needed for brief checkpoint at border
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U.S. v. Martinez-Fuerte
vehicle checkpoint |
stopped EVERY CAR for illegal immigrants and this is reasonable.
Balancing test- nature of intrusion versus nature of harm. No way to tell just by looking at the car- theres no singling out. Removal of discretion from police officer and no racial profiling. DON’T WANT ILLEGAL IMMIGRANTS Brief questioning of vehicle occupants at such checkpoints is permissible without any individualized suspicion whatsoever. |
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sobriety vehicle checkpoints
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No suspicion needed for sobriety checkpoint (only) that stopped every car
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MSP v. Sitz
drunk driver stops |
Sobriety checkpoint program upheld.
looking for drunk drivers. Both are special need for ordinary law enforcement. Pulling people over to make roads safer, not with the intent to arrest. PUBLIC SAFETY- trying to protect the roads and people from drunk drivers |
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Individualized suspicion needed for drug interdiction checkpoint
(indianapolis v. edmond) |
looking for drugs and using it as an excuse to search.
This is not a special needs search! Cant articulate- primary purpose is to find drugs. |
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Individualized suspicion needed to stop vehicle for license and registration
(Delaware v. Prouse) |
Can have a check point but has to check everyone and not be discretionary
too much discretion as to who to pull over. Unregistered vehicles. Courts don’t like this type of road block |
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for vehicle checkpoint searches, look for:
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1. Which cars are stopped (all or some?)
2. How much discretion is afforded officer in conducting stops? (look for limited to no discretion) 3. is there an articulated rationale for policy? (is policy for immediate safety, or just a way to get around the law so that you can look for drugs) 4. Subjective motivation?: difference is when you speak of general program, then subjective intent matter. But when were talking about one on one policing, it no longer matters. We no longer care if its part of a larger policy. |
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border searches
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Sovereign has right to determine who and what enters its borders.
More intrusive the search, the higher level of suspicion is needed No PC is necessary for limited border search, even in absence of exigency Brief questioning at border OK; no PC required Roving patrols looking for aliens need PC for search of vehicles , but RAS only needed to stop to inquire re: residential status |
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almeida-sanchez v. us
border patrol |
patrolling looking for aliens inside border.
More inside borders you get, the more ordinary 4th amendment laws required. Pull someone over for suspicion- need either reasonable suspicion (for terry) or if lengthy need probable cause |
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martinez
border patrol |
roadblock at border
checking people for citizenship is fine, your protecting the borders (if roadblock prevents immediate danger to public safety, then the court is fine with it) |
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non police school search
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“Special needs, beyond the normal need for law enforcement …”
If you have RS you can search a public school student can search to protect other students Court approves of searching of students purse (1985) |
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tlo
school search case (requirements) |
requires search to be:
“Justified at its inception” “Reasonably related in scope to the circumstances which justified the interference in the first place” |
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tlo
school search case |
A student can be searched without a warrant by school official or teacher as long as there is reasonable suspicion that they have something that is prohibited by the school.
Ordinarily will be considered reasonable when there is reasonable suspicion that the search will turn up evidence. |
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Safford v. Redding
ibuprofin student search |
search of public school student, 15 years old, zero tolerance for ibuprofin, kid snitches
girl ends up in nurses office in underwear and bra, asked to pull out underwear to see if ibuprofin will fall out, she drops out of school. Can we engage in this kind of activity? court says TLO governs. You can search kids as long as you have RS. But the scope of the search must be reasonably tailored to the nature of the offense. Says scope of search was not reasonably related to what they were looking for. Searched bag for ibuprofin and asked questions. Had no reason to believe it would be in your underwear. |
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police school searches
|
Claims of excessive force properly analyzed under Fourth Amendment’s “reasonableness” standard
cop only needs to be reasonable, doesnt need to be right |
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graham v connor
diabetic reasonableness |
diabetic trying to go to convenience store to get orange juice. Walk in ,store is filled with people , decide don’t want to wait and leave the store. Acting quickly, and officer notices this.
He pulls them over .5 miles from store and makes an investigative stop. Friend tells cop that friend is a diabetic and he needs his juice. Very terry like- sees something suspicious and something doesn’t seem right. Officer handcuffs him. He passes out. Carried and placed face down on hood and regains consciousness. Tells officer to check my wallet. Excessive force? This all comes down to 4th amendment reasonableness. If officer acted unreasonably, then there is a violation. Officer need not be correct, he just needs to be reasonable |
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ferguson
pregnant drug tests |
pregnant moms being tested for cocaine.
testing positive for cocaine would refer for prosecuting Worried about endangering a fetus. Feel as though they have a SPECIAL NEED to do this drug testing, and ordinary 4th amendment does not apply. Looks at document given to women associated with the program, purpose of program, and involvement of people in program. Determined not a special need, its an excuse for ordinary policing |
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consent
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In the absence of probable cause, “a search authorized by valid consent may be the only means of obtaining important reliable evidence”
Just need a legitimate question and a reasonable answer |
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consent standard
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1. whether or not consent is voluntary (was it forced, coerced, was def. lied to?) and
2. totality of circumstances (look at the question and how its answered) |
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with consent, look for:
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Scope of consent requested
Scope of consent granted Lack of coercion on part of state actor and Revoked consent |
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bustamonte
consent |
Bustamonte expressly rejects the need for a knowing, voluntary and intelligent waiver in consent search situations
Passenger consented to a search of his brother's car and the search produced evidence which got D convicted. A person’s consent will be valid even if they were not told they had a right to refuse. |
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consent continued
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Suspect does not need to be told he is free to leave
Consent can be revoked.. but this must be before the officer sees drugs (otherwise plain view comes in) |
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dueling consent
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“We hold that … a physically present co-occupant's stated refusal to [give consent to a search] prevails, rendering the warrantless search unreasonable and invalid as to him”
(one person can consent for both if it is jointly owned, but if one says yes and the other says no, the answer is no) |
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third party consent
(apparent authority for consent) |
Where officer reasonably believes that person giving consent to search has the authority to do so, consent search will not be deemed unreasonable
Officer doesn’t have to be right, he just needs to be reasonable Look to totality of the circumstances, as known to the officer at the time of seeking consent |
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4th amendment remedies
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1. Exclusionary rule
2. Exclusionary rule limits (exceptions) i. Good faith ii. Standing iii. Fruit of poisonous tree (Attenuation, Independent source, Inevitable discovery iv. Impeachment |
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exclusionary rule (then)
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“We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” (mapp)
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exclusionary rule (now)
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“Suppression of evidence, however, has always been our last resort, not our first impulse.”(Hudson)
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exclusionary rule
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Mandates that evidence obtained through unreasonable search and seizure will be suppressed.
Only applies to case in chief (prosecutors primary case against d) Designed to deter police misconduct and promote judicial integrity Judicially crafted rule |
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exclusionary exception: good faith
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Permits evidence to be admitted even though warrant may be facially invalid
If cop relies on a warrant in objective good faith, then the evidence seized based on that good faith search will NOT be suppressed under exclusionary rule Test-What would a reasonable officer do in that situation? Would a reasonable officer have known the warrant was invalid? If clerk makes a mistake and fails to remove expired warrant from computer, good faith still applies |
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exclusionary exception of good faith does NOT apply when:
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1. If cop lies in obtaining warrant or recklessly disregards the truth
2. Magistrate abandons his judicial role and the officer knows it 3. Warrant itself is so facially invalid that the officer should have reasonably not relied on it 4. Affidavit in support of PC is unreasonable |
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exclusionary exception: standing
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Standing is the right to come to court and complain about a violation of your rights
If no standing, then end of analysis Standing is not automatic- since your using evidence against me I have the right to complain about it. |
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test for standing
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Person claiming standing must have :
“legitimate expectation of privacy in item searched or seized that society is prepared to recognize as legit” Looks a lot like test from katz. Must also look at ties with the areas searched |
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who has standing?
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Overnight guest has standing (make yourself at home!)
Resident grandson in grandmother’s house Apartment tenant has standing |
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who doesnt have standing?
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Mere passenger in car on 20 minute drive to class.
However, Road trip passenger does have standing (in car for long time, spreading out, sharing driving privileges) However passenger will have standing in their own body or if car illegally seized Guest whose purpose of visit is commercial |
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minnesota v. carter
standing cocaine through window |
walking down the sidewalk, look in window see people packaging cocaine. Call police, comes and peeps through window.
Issue- where he was standing legally in plain view? Right of access, lawful vantage point, probable cause. If standing on a sidewalk not considered a search. If he was on the curtilage then it would be a search and we would have to ask if reasonable or unreasonable. Witnesses cocaine packaging, calls headquarters for search warrant. Why not knock and barge in? if officer goes in without a warrant needs exigent circumstances. Exigent circumstances? No- facts don’t say packagers knew officer was watching, therefore no concern of destroying drugs. 2 people leave house, officer pulls them over. Basis for stop? Terry. Maybe something more than that. Opens door of the car and sees black zippered pouch and loaded handgun. Did he really have authority to pull driver out of car? Why does he have probable cause to make arrest? His observation through the window. Has probable cause to m |
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who may have standing?
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Claimed ownership?
Wife, Hold my wallet and keys in your purse. Can you claim ownership of bag for standing purposes? Depends on relationship of the bag. Husband can go in bag and take out wallet. |
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exclusionary exception- FOPT
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idea is that the gov shouldn’t be allowed to benefit from its own wrong doing
Provides suppression remedy where evidence is direct product of an unreasonable search It’s a way to suppress evidence where a d may not have standing to make that suppression argument If can prove the evidence is fopt, then the evidence will be suppressed Causal link between evidence and unlawful search |
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with FOPT, look for:
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but for
a chain in someone elses 4th amendment rights and at least 2 pieces of evidence If you can find a BUT FOR causation, then evidence should be suppressed (but for tims statement, the drugs would have been found and must be suppressed) |
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FOPT example
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PO arrests X based on reasonable suspicion only
PO conducts search incident to arrest and discovers heroin in X’s pocket. Can heroin be used at X’s criminal trial? No. need probable cause for custodial arrest. No probable cause here, heroin is fruit of poisonous tree and must be suppressed |
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FOPT example #2
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PO arrests X based on reasonable suspicion only.
X tells PO that he can find methamphetamine at Y’s house. PO goes to Y’s house and finds methamphetamine, as X predicted. Can methamphetamine be used at Y’s criminal trial? Y might argue the finding of the meth is a fruit of poisonous tree. Tree is the unreasonable seizure of x. y could also say that the search was unreasonable as it was based on an uncredible tip and xs tip did not give probable cause. |
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FOPT example #2 continued
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Can methamphetamine be used at X’s criminal trial?
X has no standing in ys house, but can he make a claim regardless of standing the meth should be suppressed? But for my unreasonable seizure/bad arrest, you never would have discovered the meth and therefore it cant be used against me. When dealing with fruit of poisonous tree, a party who normally would not have standing may be able to get evidence suppressed |
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exception to FOPT
attenuation |
Has the taint of the poisonous tree been removed (attentuated) by time or other actions on the part of police to purge the taint?
If the link between the fruit and PT are so remote (time/ intervening causes), then that fruit will not be suppressed |
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exception to FOPT
independent source doctrine |
evidence will be admitted if it would have been found through another source independent of constitutional violation.
Was there an alternative (real) lawful source for the evidence in question? Alternative and real line of investigation that is occurring at the same time as police misconduct. Hypothetical, not a true legit independent source. Evidence will not be suppressed when theres an ISD |
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exception to FOPT
inevitable discovery |
Would the police have discovered the evidence in question through lawful means?
If your going to find it lawfully or not, then its inevitable discovery Must have been found in substantially same condition and would have legally been discovered in another way Prosecution must prove by preponderance of the evidence |
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Nix case
inevitable discovery |
kidnapping of kid from ymca xmas party. rolls her up in a rug, someone helps him and sees the feet hanging out of the rug. Shes killed, hes arrested.
Say they want to give the girl a proper christian burial. Its snowing. Just tell us where her body is so we can bury her properly. Confesses to crime and tells them where to find her. Fruit in this case is her body, not the confession. Argues but for violation (talking outside presence of counsel) you never would have discovered the body. Court said girl would have been inevitably discovered. Search party trained to comb the area and they were nearby where body is eventually discovered. Body would have been inevitably discovered and police were close- would have come across evidence anyway. |
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exclusionary exception
impeachment |
What does it mean to impeach a witness:
fact finder must make credibility assessment of a witness. If found not credible, you can disregard their testimony. Impeaching is attacking credibility to show the witness is a liar. In criminal case you can confront witness with evidence suppressed. Only extends to d, not witness (don’t want to discourage witnesses from testifying) Cannot use statement to prove guilt, can only use to show hes a liar |
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havens
impeachment |
attorney coming home from lima, searched and drugs found. Defense lawyer gets evidence suppressed at trial. codefendant pleads guilty and testifies against haven.
Haven takes the stand. Denies never seeing drugs, gives prosecution ability to impeach him and show he is lieing. Can the state do this? Yes. You can always impeach a defendant with evidence that has been suppressed. Why? Evidence suppression is to deter wrongful conduct. This doesn’t give defendant opportunity to commit perjury. But the defendant needs to bring it up. |
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14th amendment and due process
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No state shall deprive any person of life, liberty, or property without due process of law
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14th amendment
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uses Voluntariness test- confession MUST be voluntary
14th amendment prohibits involuntary confessions |
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involuntary
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Involuntary confessions cannot be used for any purpose.. however Miranda violations can be used for some purposes
actually coerced by police against d will and police use unfair means to do so (outrageous police conduct) Physical and psychological coercion is involuntary |
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how to determine if involuntary
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TOC
age experience with crim justice system intelligence emotional or mental stability physical condition gender and race |
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5th amendment
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must inform people of 5th amendment rights
v. 4th amendment where you don’t HAVE to |
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how does 5th amendment kick in
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Witnesses has to be compelled to testify
State has to be compelling incriminating testimony Witness himself has to be actually giving testimony |
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double jeopardy clause of 5th amendment
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Defendant may not be retried for same offense once jeopardy has attached
Meaning of “jeopardy attaching?”- once attached, prosecutor is stuck with his case and clock starts ticking. Jurors take oath means jeopardy has attached 1st witness is sworn, jeopardy has attached Definition of “same offense?” look at the elements. 2 crimes are different if they each have at least 1 independent element. |
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Example #1
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xyz
v xya DIFFERENT |
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example #2
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xyz
v xy SAME- BECAUSE ONLY ONE HAS INDEPENDENT ELEMENT. Double jeopardy would bar retrial because same. |
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theory behind double jeopardy
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gov cannot run around and harrass citizens trying for crimes over and over again
prosecution gets one bite at the apple *Attempt is different than completed crime* relies on elements of crime, not factual events underlying crime |
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3 exceptions to double jeopardy discussed in class
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appeals initiated by d
prosecution by separate sovereigns criminal prosecutions followed by civil proceedings mistrial rules |
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exception to double jeopardy
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Appeals initiated by the defendant:
convicted of crime and claim error. Court agrees and vacates lower court conviction and allows retrial. Why no double jeopardy violation? Ask and you shall receive. Court vacated the judgment, it was over. |
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exception to double jeopardy
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Prosecutions by separate sovereigns:
Person can be tried by state gov, be acquitted and feds and turn around and try d for very same crime and that will not bar dbl jeop. Why? Different governmental entity prosecuting defendant. (rodney king case). Usually state followed federal prosecution . Venon: charged state murder, federal hate crime. Elements are same for dbl jeapordy purposes, but because 2 diff governments, not double jeop violation |
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exception to double jeopardy
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Criminal prosecutions followed by civil proceedings:
Oj simpson- tried criminally for 2 hom. Acquitted. Victims family members sued for wrongful death, dbl jeopardy does not bar retrial. 2nd case instigated by private party. dbl jeo designed to prevent harrassment from government |
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exception to double jeopardy
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Mistrial rules:
Way to punish prosecutors for engaging in misconduct. Don’t want to grant mistrials very often. Manifest necessity |
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right to grand jury
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Secret investigative bodies.
Founding fathers had idea rather than having us face public shame and embarrassment, create grand jury Run by prosecutor (No judge, no defense attorney, one sided show) Why do we allow this one sided show? Just dealing with charging the person Suppression rules do NOT apply. If prosecutor has evidence that he knows will be suppressed, he can still use it. Hes not required to present exculpatory evidence to grand jury. |
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purpose of having a grand jury
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to investigate targets/people and decide whether theres sufficient evidence to charge person with a crime
serves as a check on prosecutions right to indict suspect ex: victimless crimes such as gambling organized crime drug cases right to subpoena all possible witnesses not constitutionally required of the states under the 14th amendment because they are not rights of fundamental fairnesss |
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privilege against self incrimination
immunity |
Immunity grant needs to leave witness in the same place as if he had remained silent
gov cant force me to be a witness against myself. Idea behind immunity rule is that is leaves the witness in the same place as if they had never testified at all. If you talk, you wont be held liable. Immunity exists to get witnesses talking because no one would be stupid enough to just speak |
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3 types of immunity statutes
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use
transactional use derivative use |
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use statute
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prosecution can prosecute witness for all crimes related to testimony but cannot use actual testimony. worst for witness
cannot use the witnesses words against him states that the prosecutor will not prosecute you with your own words Doesn’t say that the prosecutor cant get some leads off the witness (if witness talks about coconspirators, prosecutor can send people out and get those coconspirators) Not sufficient to protect persons Not the best idea to try to make 5th amendment argument, since if given immunity, you will not be prosecuted |
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transactional use statute
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no prosecution for crimes witness admits to in answering grand jury questions (if you admit to committing any crimes, cannot use this against you). Best for witness
nor will he use your words for anything If granted immunity under this, prosecutor cant do anything with that testimony Protects them as if they had remained silent. Prosecutors hands are tied- cant use info for anything |
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use derivative statute
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prosecutor cant derive anything from your words
He cant use the words and cant make derivative use of the words this is the only one that is used anymore. This is right in the middle of the other 2, and is a broader than use statute |
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compulsion
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When choice is voluntary, there is no compulsion
anytime we're looking at a confession we need to look at 14th amendment. Look to see if its voluntarily if any of these 3 = involuntary: physical violence? threats of physical harm? threats of physical harm within a prison If it's deemed involuntary it is inadmissible for all purposes (cant use to impeach) |
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defendant in criminal trial
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need not assert privilege against SI.
He can just make the choice to not testify. But if non defendants are called to stand and don’t want to testify, they must take the stand and be sworn in and assert the right in response to specific questions |
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if d refuses to testify...
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Prosecution cant take advantage of ds refusal to testify
Jury is told cant make adverse inference from fact that d has refused to testify |
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testimony
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Primary thing that 5th amendment protects is verbal communication
protects us from giving our words in criminal proceedings Does not extend to physical evidence 5th amendment doesn’t protect making a person stand in a lineup, handwritten things, voice exemplar Look for evidence that forces suspect to “disclose the contents of his mind” Testimony can never be used against witnesses, not even for impeachment. It can only be used in case of perjury |
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if cop stops you and asks what your name is, is that incriminating?
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No- not a compulsion situation
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police interrogation
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Look at conduct of cop while getting statement, and the reliability of the statement
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messiah
(leading into miranda) |
“All we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.”
Meaning of “under the circumstances here disclosed[?]” when charged with a crime Brief summary-2 arrested and released. 1 party agrees to lure massiah to his car, have a conversation about criminal acts, plant transmitter in car, officers and fed agents nearby listening. Gov wants to introduce his statements heard over the radio transmitter. Gov. agents interrogating him/obtained statement from him, informal questioning/passively, no lawyer present or contact to counsel Massiah argues statement should be suppressed. |
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what we get out of messiah
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if the person is charged with a crime he has a 6th amendment right to counsel and the cop cant talk to him
Does not protect people who aren’t charged Once a d is charged with a crime, the state cant deliberately elicit statements from him- he has a 6th amendment right to counsel 6th amendment right to counsel commences at the time your charged with the crime |
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escobedo
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“We hold [that where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect …the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not warned him of his absolute right to remain silent, the accused has been denied the ‘Assistance of Counsel’ in violation of the Sixth Amendment …”
Not charged yet, but the cops talk to him as if hes #1 suspect He makes statements and they are being used against him Court says when the investigation has focused on a particular person, that person has a right to counsel and if that person makes a confession in the absense of counsel, then that statement cant be used against him 6th amendment right to counsel is triggered on prosecutions focus on you as a suspect |
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Change from messiah to Escobedo:
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escobedo:
they are trying to expand scope of 6th amendment to go beyond text of constitution and start before your charged with a crime. Will they be able to do so? This is where miranda comes in |
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what does miranda say
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Mandates issuance of specific warnings when suspect is subjected to custodial interrogation
Miranda is a constitutional decision and cannot be overwritten Need gov act, custody, and interrogation Says when theres a custodial interrogation, then you must be told about your rights and what it means to give them up |
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miranda is triggered by
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specific warning of your rights
1. right to remain silent (5th amendment privilege against self incriminating) 2. anything you say can or will be used against you in a court of law (Consequences of giving up that right ) 3. You have a right to a lawyer (created by warren. Reason he reads this right into the 5th amendment because it’s the only way to preserve privilege against self incrimination) 4. If you cant afford a lawyer one will be appointed for you (if you cant afford tools you need, the government will provide for you is huge! This is at the time of the poor peoples movement) |
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miranda was designed to
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protect against police interrogation where judge cant monitor whats going on
Miranda was not designed to protect against spontaneous utterances |
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custodial interrogation
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questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way
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warrens concerns
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Warren is concerned about psychological coercion, rather than physical coercion.
Brings up good cop bad cop- mutt and jeff/ Reverse lineup |
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miranda and impeachment
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statements made in violation of Miranda can be used to impeach defendant
evidence of defendants post miranda silence is inadmissible for impeachment purposes |
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violation of miranda
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not a constitutional violation, it’s a case law violation!
"prophylactic rule" We suppress the statement, not the fruit of the evidence. If it was a constitutional violation (due process of 14th amendment), evidence would not at all be admissible |
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waiver of rights
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Waiver must be voluntary
KVI: Burden on state to prove waiver standard; knowing (knows rights) voluntary (free from coercion or duress) and intelligent (knows consequences). Proven by giving miranda rights Once suspect waives his right to counsel, cops can use coercion because the suspect was given his rights, and then waived them Need not be in writing, oral is fine Don’t need to tell suspect an attorney is on their way |
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miranda lawyer v messiah lawyer
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Miranda lawyer-read in when theres a custodial interrogation
Messiah lawyer-6th amendment lawyer who is initiated when the person is arrested |
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custody
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Custody occurs when “person is taken into custody or otherwise deprived of his freedom in any significant way”
Custody does not depend on being in a police station Custody can occur within a private home |
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orozco v. texas
police custody |
Custody does not depend on being at a police station.
At same time, can be at a police station and not be in custody |
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examples when your not in custody
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When your subpoenaed
during a traffic stop |
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interrogation
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Interrogation is “express questioning (anything that ends with a question mark)
or its functional equivalent (words or actions on the part of the police … that the police know are reasonably likely to elicit an incriminating response from the suspect) |
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rhode island v. innis
mentally retarded child interrogation |
Tried to get innis to talk (not about a proper burial, but prevent mentally retarded child from killing themselves).
Cops didn’t take advantage of known susceptabilty and use against him, they just tried a technique that worked. This is not the functional equivalent of express questioning |
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warnings
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the state is free to deviate from the language (can be in reverse order)
specific language of Miranda is not required, just must reasonably convey the warnings. Warnings that suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during th[e] interview,” satisfies Miranda Miranda warnings are NOT constitutional in nature, however, the miranda decision is Must give Miranda warning when held for longer than a terry stop |
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To determine if warning is ok:
|
must reasonably convey the 4 corners of Miranda
and additional info must comport to the law of that particular state |
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miranda exceptions
(when miranda rights arent needed) |
1.When info is given voluntarily -there is no pressure of the cop
2. Covert custodial interrogation -suspect doesn’t know they are being interrogated. -underlying concerns of miranda are not met, therefore we don’t provide a warning 3. When suspect is asked routine booking questions. -Why? Questions are not testimonial even if they tend to be incriminating. -This is based on policy. need to look at what is asked and done in that specific jx 4. Questions regarding “public safety” -when theres an immediate and credible threat to the public. -very limited right because all policing implicates public safety (organic situation to a cop). -Limited to when exigency ends. |
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invocation of rights
2 types under 5th amendment |
invocation of right to silence
invocation of right to counsel |
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If suspect invokes right to silence, then:
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1. Interrogation must immediately cease;(cop must stop questioning)
2. Interrogation must be suspended for a “significant” amount of time;(must be left alone) 3. Suspect must be re-Mirandized before being re-interrogated (needs to be remirandized) |
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right to silence
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Suspect must unambiguously and unequivocally assert his right to remain silent.
Note that Thomkins “was largely silent during the interrogation, which lasted about three hours.” To invoke your right to silence, you must speak! Cops must scrupulously honor your right to silence and STOP asking you questions. Leave you alone! |
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right to counsel
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Invoking right to counsel means that your saying you want your attorney next to you during all questioning
Request for counsel must be “clear and unambiguous” If suspect invokes right to counsel, “interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted his attorney” |
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edwards v. arizona
request for counsel |
when you make a clear unambiguous request to counsel to the cop, you are question proof after that point in time from further custodial interrogation.
Absolute. |
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Where suspect invokes his right to counsel under Edwards, and is then “released from custody” –custodial interrogation and “returned to his normal life”...
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police may re-approach suspect after a two week break in custody
Note that in Shatzer, suspect was serving term of years, so his “normal life” was w/in prison walls |
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reinitiation
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Reinitiating conversation with police officer
If suspect asks a question that relates only to the incidents of the custodial relationship, he has not reinitiated conversation with the cop Reinitiation test: willingness and a desire for a generalized discussion about the investigation a necessary inquiry arising out of the incidents of custodial interrogation asking questions about the actual case is re-initiation, asking about things like jail is not |
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How do you get a valid waiver once suspect has reinitiated?
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Re-mirandize him
Do the same thing over and over again Required by constitution? No but constitution requires waiver rules (knowing, voluntary, etc) |
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single interrogation sessions
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overlapping content
no real separation in time officer confronts her in "second round" |
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suppression of evidence
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For suspect to have a suppression-of-evidence remedy, criminal proceeding must have actually commenced against him
Miranda does not apply to physical evidence, but to statements only FOPT does not apply in Miranda context assuming that you have a proper reading of miranda warnings separating the bad event from the good event if d can show that po essentially engages in “question first, warn later” method prohibited by Missouri v. seibert, the later statement may be suppressed |
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siebert case
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There was a police protocol that officers would not give Miranda warnings until they got a confession and would then get the person to confess again.
They could use the invalid confession for impeachment and could then use the valid confession. If they do a two-step interrogation on purpose to get you to confess, no good. but If good faith mistake, the second statement, as long as everything else is okay, will be admissible. |
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5 siebert factors
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1. Completeness/detail of questions and answers during first interrogation session
2. Overlapping content between 2 statements 3. Timing and setting of first and second sessions 4. Continuity of police personnel 5. Degree to which interrogations questions treated second round as continuous with the first |
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with suppression, think 14th amendment
|
always inquire to whether 14th Amendment mandates suppression
Statement will be suppressed under 14th Amendment if it is deemed “involuntary” |
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when 6th amendment attaches
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ATTACHES WHEN ADVERSARY JUDICIAL PROCEEDINGS BEGIN, WHEN THE SUSPECT HAS BECOME THE ACCUSED, AND THE COPS HAVE BECOME A PROSECUTIONAL FORCE
*Triggered by govt action, AJP (you’ve been formally charged), and deliberate elicitation |
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6th continued
|
6th amendment applies to “ critical stages”
6th gets more protection than 5th because in constitution For violation, there must be government conduct! Only way to waive once you’ve asserted it if d reinitiates and hes remirandized (same standard for 5th) |
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6th amendment
|
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense"
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basic rule from 6th amendment
|
once adversarial judicial criminal proceedings have commenced against a defendant, the state may not deliberately elicit information from him, absent a waiver
and any information obtained in violation of this rule cannot be used in the state's case in chief |
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massiah (see previous cards)
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gets him to talk about the crime that was committed
court says you cant use those statements (because massiah had 6th amendment right to counsel) once you are arrested you have the right to counsel and the state cannot interfere |
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remedy of messiah
|
Statements made pursuant to defendant-initiated contact are subject to use for impeachment
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AJP
|
when suspect is actually accused of committing the crime at issue
look for - an indictment was returned, defendant was charged, and information was filed, arraignment Note that Massiah is offense specific (only works for that crime) moment person is actually charged with the crime is a pivitol point in the case when you are charged is when 5th amendment comes in |
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Use test from blockburger to assess whether a crime is same or different for AJP/ massiah purposes (remember we look at the elements to determine if they're different)
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EX-
Arson that led to homicide, charged with arson and not murder yet. only messiah right to arson (the two crimes are different) |
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deliberate elicitations
|
Watch for situations where state deliberately elicits:
guy pretends to be a prisoner and asks a lot of q’s, State creates encounter where elicitation is likely or State exploits encounter with defendant |
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examples of deliberate solicitation
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co-defendants who wear wires
snitches who pretend to be a prisoner |
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6th amendment right to counsel
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Police may approach defendant and request waiver, regardless of the fact that counsel has been requested retained, or appointed;
edwards protections sufficient to protect defendant Defendant can always approach police, regardless of the fact that counsel has been requested, retained, or appointed always check for KVI |
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edwards v. arizona
right to counsel |
After he was arrested and read his Miranda rights, petitioner requested an attorney.
The police officers ceased questioning, but detectives from the same police department returned the next day and again interrogated petitioner. Petitioner confessed to the crimes during the second interrogation. They can come back if suspect re-initiates the conversation or counsel is present. The court assumes that the suspect does not want to be questioned. |
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under edwards...
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if you are appointed council, you must still say you want to invoke your right to counsel.
this means a defendant can appear in court, counsel appointed, police escorted out and if the cops said "did you want a lawyer" and the response is no, then police can question him. This means police get a second bite at the apple - police can ask a second time after counsel is appointed if they want counsel. being charged with a crime is more that being suspected, so when you are actually charged, the right to counsel attaches |
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right to counsel attaches when
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you are actually charged
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right to counsel if charged with misdemeanor?
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Only if your going to jail.
if felony- you have right to counsel. If judge denies you counsel, he cannot sentence you to jail time |
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massiah v. miranda
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Massiah is offense-specific, Miranda is not
Massiah prohibits use of statements made pursuant to covert custodial interrogation; Miranda does not Massiah attaches automatically; Miranda rights must be invoked Massiah is triggered by deliberate elicitation; Miranda is triggered by custodial interrogation |
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identification
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Erroneous convictions are usually as a result of a wrongful eye identification
Court is constrained by the constitution. Answer to eye witness problems lies with legislature |
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eyewitness id procedures
(lineups, photo arrays, show ups) |
Lineups-
live event with target (person we think witness should pick out) and then about 4-6 fillers. Want fillers to look as much like the target as possible. Fillers come from anywhere Photo array- series of photos shown to victim, victim picks which photo is the criminal Show ups- involves presentment of a single person to the victim. Show ups occur in emergency situations. It’s a desperate measure |
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6th amendment right to counsel for pre charge show ups?
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No.
(they are subject to lineup before being charged. No right to counsel). Why not? We need to draw the line somewhere. Since no criminal prosecution, no right to counsel. |
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critical stage
(kirby) |
Pre charging line up is not a “critical stage”-
stage of proceeding where court holds theres a 6th amendment right. at a critical stage, you need the guiding hand of counsel |
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Sixth Amendment right to counsel for post-charge (post indictment) line-ups and show-ups?
(wade) |
yes.
if theres been a charge, d is charged with a crime, then he has a 6th amendment right to counsel at his lineup. Once lawyer is in the room, he can identify everything that goes on so that he can effectively cross examine and point out any deficiencies |
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If d subject to post lineup and attorney is not notified...
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remedy for failing to provide counsel is that the state cannot allow witness identify d in court (in trial)
they cannot use the identification in the trial. Why? because the identification is tainted- its based on an erroneous procedure. Flawed line up. Exception- independent source to the ID. this would mean id in court is not based on erroneous procedure, but on its own. |
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What is counsels role in a lineup?
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Try to affirmatively correct mistakes seen, take notes and use notes later in terms of cross examination
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6th amendment right to counsel for photo arrays?
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No Sixth Amendment right to counsel for photo arrays, no matter when conducted.
Pre or post charging photo arrays are not critical, therefore the guiding hand of counsel is not needed. |
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photo arrays v. lineups
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Photo array can always be recreated, a lineup cannot.
If prosecutor cant reproduce photos, prosecutor is prevented from presenting witnesses in ct identification unless he can show an independent source for the id with lineups, How are we gonna find these guys again? |
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6th amendment Right to counsel at a showup?
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Precharge no- not a critical stage.
Post charging show up?yes. does this often happen? No. why? Showups tend to happen very close in time to the crime being committed.. d isn’t actually d yet. |
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other ID issues
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Regardless of 6th Amendment analysis, always inquire to whether 14th Amendment mandates suppression
Identification will be suppressed under 14th Amendment if procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” Very high standard Claims of a due process violation assessed using totality of the circumstances (court thinks totality of circumstances is important). Why is this the wrong direction? Certainty of the witness is not always absolutely certain |
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important factors to look at involving IDs
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Witness’s opportunity to view suspect
Witness’s degree of attention Accuracy of witness’s description Witness’s level of certainty Time between crime and confrontation |
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effective assistance of counsel
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you are entitled to attorney who will do a decent job for u
attorney must be so bad, its his fault that you lost burden is on the d to show lawyer messed up objective standard of reasonableness but for counsels error the result would likely have been different judge doesn’t have to make a dream team panel of counsel |
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6th amendment right to speedy trial
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If you don’t get a speedy trial, you get dismissed with prejudice
Look at length of delay, the reasons of the delay, ds assertion of his right to speedy trial (did he complain), and prejudice to the d. these elements are all totality of circumstances If delay is long enough, prejudice is presumed (how much anxiety was caused to him, and was his defense diminished or harmed) |
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public policy behind 6th amendment right to speedy trial
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offered to protect from bad faith pre trial incarceration
to minimize anxiety to the accused and to lessen or prevent any harm to ds case |
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right to speedy trial attaches
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upon indictment/charged
(if arrested and not charged, your right to speedy trial hasn’t been set in yet) |
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6th amendment right to jury trials
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1. cant make peremptory challenges based on race or gender
2. can make challenges for cause- removal of jury members for legal reasons that prohibit them from serving 3. you have a right to a trial by fair and impartial jury |
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when are you entitled to a jury trial?
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get jury when have possible sentence of more than 6 months
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