CRIMINAL PROCEDURE OUTLINE



CRIMINAL PROCEDURE OUTLINE

I. Origins of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particula rly describing the place to be searched, and the persons or things to be seized."

A. Katz v. United States redefined the method of deciding whether the government had engaged in a "search" that is subject to legal limitations. Court moved away from concepts of property and toward concepts of individual privacy.

A. Terry v. Ohio eliminated the single standard of probable cause. Recognized a category of limited searches and stops that police could conduct on the basis of reasonable suspicion.

A. Ronald Camara v. Municipal Court of San Francisco: created a new method for determining what justification the government would need for a search, and what process it would follow to establish that justification. 4th Amendment appli ed to both civil and criminal law enforcement efforts.

 

Balancing Test: Balance the need to search against the invasion which the search entails.

Balancing test: Protection of individual liberties vs. desire for effective law enforcement.

A. To determine the reasonableness of a search or seizure:

1. The privacy interest of the person subject to a search

2. The government’s interest in conducting the search

3. The degree of intrusion from the search

 

A state criminal defendant with a constitutional challenge may be able to rely on both the U.S. Constitution and the constitution of the State prosecuting him. Sates are free to give greater procedural protection to criminal defendants than that c onferred by the U.S. Constitution, but may not give less.

 

 

 

 

 

 

 

II. Probable Cause: more than reasonable suspicion, but less than beyond reasonable doubt.

 

A. Rule: (Brinegar v. United States – US) most common definition. Probable Cause exists where the facts and circumstances within the officer’s knowledge and of which they had (a) reasonably, trustworthy information sufficient in themselves t o warrant a man of (b) reasonable caution in the belief that (c) an offense has been or is being committed.

Reasonable to a ‘reasonably prudent’ or ‘cautious’ person.

Strength of link between the facts offered and the conclusion that criminal activity has occurred – Depends on jurisdiction:

i. a magistrate must determine if the facts suggest a probability of criminal activity or

ii. the magistrate must determine if the facts are sufficient "to believe an offense has been committed" or

iii. a person believes or consciously entertains a strong suspicion that the person is guilty.

 

Some jurisdictions enhance their general definition of probable cause by requiring that the assessment be based on evidence that is reliable, trustworthy or credible.

Rule for Search-generally: For there to be probable cause to search particular premises, the conclusions which must be supported by the evidence are:

i. that the specific items to be searched for are connected with criminal activity; and

ii. that these items will be found in the place to be searched.

 

Rule For Arrest – generally: For probable cause to arrest a person to exist, two conclusions must be justified by substantial, trustworthy, evidence:

i. That a violation of the law has been committed, and

ii. That the person to be arrested committed the violation.

 

 

 

 

A. Based on information by Confidential informant:

 

Majority/Federal Rule: Totality of the Circumstances Standard. (Illinois v. Gates):

When a search warrant affidavit is based on information provided by confidential informants, magistrate should examine affidavit to determine:

a. whether it adequately describes the factual basis of informant’s knowledge, and

b. the basis on which the informant or information is reliable.

** These can be achieved through corroboration.

The majority of States have adopted the Gates Rule.

2. Minority/State Rule: (State v. Barton – Conn) Offered more protection than Gates standard.

a. Regarded Gates totality of the circumstance analysis as an amorphous standard that inadequately safeguarded the rights of individuals to be free from unjustified intrusions. Used same test as Gates +:

b. Affidavit must:

 

i. expressly state that informant had personal knowledge of facts described/ or have enough facts that the magistrate could infer such knowledge.

ii. If the informant is not anonymous, that may satisfy credibility /reliability requirement.

iii. One outstanding prong may make up what the other prongs lack.

In a marginal case, magistrate can reasonably demand more information. This places more responsibility on the fact-finder / magistrate.

1. Anonymous Informer:

 

A.( McCray v. Illinois – US)

"Informer’s privilege" – allows government to withhold the name of a confidential informant or other information, including an affidavit which supported a search warrant, which could lead to the informant’s identification.

B.(State v. Miller – ND)

Important that anonymous caller was able to predict D’s future behavior because it demonstrated inside information.

Anonymous source

(Bradley v. State – Ind): Corroboration did not include verification of accurate predictions of future actions of a third party, which would give a court reason to believe informant had access to reliable information.

4. Anonymous Tip

(Ex Parte Antonio Barnette – Ala) anonymous tip must be corroborated by independent police investigation

 

III. Reasonable suspicion:

 

A. Rule: Lesser standard than probable cause (Terry v. Ohio)

Officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion.

1. Objective Standard: Would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate.

 

BRIEF INVESTIGATIVE STOPS:

Depends on level of control of officer:

A. when officer engages in conversation, he does not need to justify decision to focus on one person.

A. When officer stops person for a brief period but not long enough to qualify as an arrest, the officer must have reasonable suspicion before making the stop.

 

I. Rule/Definition of Stop: **(U.S. v. Mendenhall) An encounter between a police officer and a citizen becomes a stop when a reasonable person in that situation would not feel free to leave or to refuse to cooperate.

 

Reasonable Person Test: objective - examples from Mendenhall:

1. the threatening presence of several officers;

1. the display of a weapon by an officer;

1. some physical touching of the person or

1. Language or tone of voice indicating that compliance with officer’s request might be compelled.

 

A. Consensual Encounters and Stops:

 

1. When Encounter turns to a Stop

(Wilson v. State – Wyo)

a. Time period: Initial encounter lasted a minute and a half.

b. When officer asked for name and identification, still an encounter

c. Routine warrant check happened during encounter.

 

A stop/seizure occurred when defendant complied with officer’s instruction to wait.

OBJECTIVE: Would a reasonable person feel free to leave under Mendenhall standard?

No more intrusive than necessary (Florida v. Royer)

**Place (State v. Dean) high crime area- investigative stop ok.

 

I. Stop at an airport: (Florida v. Royer)

Defendant was asked by police to accompany them to a room 40 feet away. Reasonable person would not have felt free to leave. Stop valid under Terry. (The court concluded that the subsequent arrest was illegal, however.)

I. Pursuit:

(California v. Hodari – U.S.)

Officer does not need individualized suspicion to tackle defendant after seeing him discard drugs.

(State v. Tucker – N.J.)

Determined that police must have individualized suspicion to justify such a chase.

Close Quarters:

(Florida v. Bostick – U.S.)

Police questioned defendant on bus. Although D was not free to leave, a reasonable person could have felt free to decline the officer’s requests or to terminate the encounter.

(Note that the test is not whether a reasonable person would have felt free to leave)

I. High crime area/ Investigative stop:

**(State v. Dean - Me)

D’s presence in a high crime area and absence of a reason to be in an uninhabited area at night justifies police in making an investigative stop.

Suspected of past crimes:

(US v. Hensley)

If police have reasonable suspicion, grounded in specific, atriculable facts, that a person they encounter is wanted in connection with, or involved in, a completed felony, they may make a stop to investigate that suspicion.

Conduct of Suspect:

(Sibron v. New York)

When police infer from observed facts that there is some correlation between legal conduct observed and suspected criminal acts. E.g. Avoiding eye contact with police, or running away from the scene.

Surroundings:

(State v. Maya - N.H.)

Presence near a crime scene.

(Brown v. Texas)

Fact that D was in a neighborhood frequented by drug users, standing alone, was not a basis for concluding that D himself was engaged in criminal activity.

Potential Witness:

State statutes (eg. Arkansas)- Allows police to stop witnesses near the scene of misdeameanors and felonies that involve forcible injury to persons or danger to property.

Criminal profiles and police expertise

A. **(Quarles v. State –Del)

Objective/ Subjective Standard: Profile characteristics, in conjunction with police observations may justify an investigative stop. Characteristics alone not enough.

Profile: drugs: bus, carried no luggage, traveled at night, traveled as a pair.

Police observations: D’s startled reaction at seeing officers, repeated glances over shoulder, rapid stride, turning around when seeing a police car.

(Derricott v. State –Md.)

Criticized profile which included race of suspect.

I. Packages:

(US v. Van Leeuwen)

Postal authorities must have reasonable suspicion to detain a mail package for a short time, and probable cause to seize it outright.

Profile of package: size and shape of package, taped or closed to seal all openings, handwritten or printed labels, unusual return name and address, unusual odors coming from package.

I. Race:

a. **(Coleman v. State - Del) Use of race may be legitimate when it is one of several factors suggestive of criminality/used to compile reasonable suspicion.

a. (United States v. Bellamy – D.C.) Court invalidated stop when officer relied on race and there were no other specific grounds for suspicion.

 

 

I. Grounds for Stops:

II. Articulable, individualized reasonable suspicion:

a. (Sokolow v. United States)

4th Amendment requires some level of objective justification. Level of suspicion required for reasonable suspicion much less than the fair probability required for probable cause.

b. (Terry v. Ohio)

Reasonable suspicion must be more than a guess. The officer must be able to articulate something more than an unparticularized hunch or suspicion. The officer must be able to point to specific and articulable facts which, when taken together with rat ional inferences from those facts, reasonably warrants the intrusion.

I. Pretextual Stops:

Where an officer creates a legal problem when the crime she reasonable suspects is only a "pretext" to justify a stop which she intends to use for some other purpose.

Majority/State Rule: **(State v. Lopez – Utah) ‘Whether a reasonable officer, in view of the totality of the circumstances confronting him, could have stopped the vehicle.’ Rejected pretext doctrine as it applied to traffic stops. An officer can stop a traffic violator if the stop is based on reasonable suspicion. It is irrelevant what else the police knows or suspects about the violator at the time of the stop.

Majority/Federal Rule: ** (Whren v. United States –US) Sided with majority of State courts. Refused to question the legitimacy of pretextual stops, so long as the officer was aware of facts sufficient to justify a stop for a traf fic offense. Could theory.

I. Minority/State Rule: Would have theory.

*(Tate v. State –GA) Invalidated pretextual stops where the officer ‘would not have’ stopped the vehicle on the legitimate basis alone.

Brief Administrative Stops:

I. Government regulation of highway safety:

I. Rule - Minority view:

(Pimental v. Dept. of Transportation –R.I.)

Random drunk driving checkpoint. No probable cause. No reasonable suspicion. Checkpoint was held unconstitutional on grounds that State Constitution provided more protection than U.S. Constitution.

Policy_ balance law enforcement interest and person’s right to privacy. Even if roadblocks have a deterrent effect, the price is too high. It would punish a few and sacrifice the rights of many.

Rule - Majority view: ** (Michigan Dept. of Police v. Sitz – U.S.)

Ct. upheld a fixed sobriety checkpoint where officers stopped vehicles, gave advance notice, without reasonable suspicion. Balanced the needs of law enforcement against the intrusiveness of the search and the individual’s right to privacy. Once v ehicles were stopped randomly, eg – every third car etc, stop is ok.

A. Drug Enforcement Stops:

 

(State v. Damask – Mo)

I. Immigration Checkpoints:

1. Fixed Checkpoint: (U.S. v. Martinez- Fuerte) Approved fixed checkpoint for brief questioning.

 

2. Roving/ suspicionless stops of vehicles (US v. Brignoni-Ponce) unconstitutional.

SEARCHES:

I. Rule/Definition: A search occurs when the government intrudes on an area where a person has a constitutionally protected reasonable expectation of privacy. The government has not conducted a search if they have not invaded a reasonable expectatio n of privacy.

 

1. Two-prong analysis for determining whether there is a reasonable expectation of privacy

 

a. Did the defendant manifest a subjective expectation of privacy? Eg: Walls built around contents, location of activity or items, whether the items were covered

b. Whether the defendant’s expectation of privacy was objectively reasonable? Does society recognize the expectation of privacy as reasonable? Could be based on community standards. (Moran v. State)/ **(Katz v. United States – US)

 

NOTE: Both prongs have to be met in order for a search to have occurred.

II. Plain View Doctrine

 

Generally, under the 4th Amendment and its equivalents, there is no reasonable expectation of privacy in matters left within open view. Hence, no "search" has occurred to be evaluated under Federal or State law.

(State v. Meyer)

Definition: Plain view situation is where the view takes place after an intrusion into activities or areas as to which there is a reasonable expectation of privacy.

Rule: Where a governmental agent is(a) engaged in a lawful intrusion and (b) inadvertently observes evidence of a crime, the seizure of such evidence does not require any further constitutional protection.

(This case requires that officer inadvertently discover item).

Definition: Open view situation, the observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside at what is knowingly exposed to the public.

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1. Rule – Majority Position: To qualify for plain view treatment, the police officer (a) must be viewing the item from a place where she has a right to be or (b) have legal access to the place because it is open to the general public. OR (c) Th e officer has reason to view some item from a vantage point not open to the general public. FLORIDA follows (c).

1. Subsequent seizure of item:

 

(Coolidge v. New Hampshire –US) If officer wants to seize item that she sees in plain view, her ability to complete the seizure will depend primarily on where the item is located.

Rule: (a) If located in an unprotected area, officer can seize item if she has probable cause to believe that it is contraband or evidence of a crime, or otherwise subject to seizure. (b) If item is within protected area, most courts require officer to get search warrant or explain why an exception to warrant requirement is necessary.

I. Inadvertence:

(Horton v. California)

Majority Rule: Police may observe and seize an item in plain view, even if the officer intended to find it. Most states and mirrors federal law follows this rule.

(State v. Meyer)

Minority Rule: Require police inadvertently discover item before it can be seized.

II. Plain Smell and Plain Hearing Doctrine:

(Mazen v. Seidel – Ariz)

Rule: When an officer is standing in a legally sanctioned location and smells or hears something that provides some suspicion or evidence of a crime, there is no "search" in the constitutional sense.

SEARCH WARRANTS

Standard: Probable Cause

I. Requirements for obtaining warrant:

a. must be issued by a neutral and detached magistrate.(State ex rel. Eustance Brown v. Jerry Dietrick – W.VA) - magistrate’s marriage to police chief did not render her biased. Court held she could still be viewed as neutral.

 

Most states (more than 30) allow only judges and magistrates to issue warrants.

b. Most constitutions require some specification of the targeted place or person sought, to distinguish valid warrants from general warrants.

(Bell v. Clapp –NY –1813).

Steele v. United States – US) When warrant lists property in an urban setting, the street address (including the apartment number, where relevant) is usually particular enough to allow the searching officer ‘with reasonable effort to ascertain and identify the place intended.’

c. Description of thing to be seized:

(Marron v. United States) The 4th Amendment requirement makes general searches impossible and prevents the seizure of one thing under a warrant describing another.

 

Paper can be seized and used without violating D’s 5th amendment rights against self-incrimination, since papers themselves cannot incriminate a person.

d. Some states also require that the warrant application be in writing, or under oath. Every US jurisdiction requires some form of sworn statement to accompany an application for a search warrant.

 

A majority of states have statutes requiring that warrants be in writing. A growing number of states have statutes authorizing police to obtain warrants over the telephone. Eg. Kansas

Affidavit Invalid:

An affidavit on which a warrant is based, is invalid ‘behind its face if:

i. a false statement was included in the affiant (the police applying for the warrant)

ii. the affiant intentionally or recklessly included the false statement and

iii. The false statement was material to the finding of probable cause.

 

Plain View:

**(Horton v. California –US) Police may seize other evidence, contraband, during valid warranted search for something else, if the former item is in plain view.

Size of Item:

The nature of the items sought will determine the permissible scope of the search. If the police are looking for a small item, the scope allowed is larger. If they are looking for a big item, the scope is smaller.

The "four corners" Rule:

(State v. Sloan) if D challenges warrant, government’s defense of warrant must come from what is on the application only. It cannot include information that officers knew at the time but failed to present to the magistrate, or information actually presented to the magistrate.

Error in a facially valid warrant:

(Maryland v. Garrison – US) The warrant is ok if the police were reasonable in not discovering inadvertent error in the warrant.

(Buckner v. United States – US) Warrant ok if police officer determines with reasonable effort that it was the place intended to be searched.

I. Execution of Warrants:

a. Time Limit:

 

All but three states prescribe a deadline for serving a warrant, after which time the warrant expires. This period ranges from two days to 60 days. The most typical time span is ten days (the period used in over 30 states plus the federal system).

a. Time of Day:

 

Over 30 state statutes impose some legal limit on the execution of search warrants at night beyond the usual requirements for daytime warrants. Most of these states require the magistrate issuing the warrant to give specific authorization for the nigh ttime search.

Some state statutes explicitly declare that search warrants may be executed at any time of night or day. Another group offer a more general standard: search warrants ‘may be executed at any reasonable time" – they might require the government age nts to make some special showing, or to obtain special permission from the magistrate before conducting a search at night. Eg. If day is not practicable.

 

Use of Force in Executing Warrants/ No-Knock entry:

a. Most states have statutes that require police who executes search warrant to

i. knock on door before entering and

ii. announce – identify himself as a police officer, and

iii. to explain the purpose for seeking entry.

 

I. Exceptions:

Typically, police may enter without notice if they have enough reason to believe that notice would

i. endanger themselves or some other party, or

ii. would allow for the destruction of evidence or

iii. the escape of a suspect. (Wilson v. Arkansas)

 

Search of ‘Papers’

‘Are there some papers which are so intimately personal that the government cannot obtain them, even if it demonstrates probable cause and obtains a warrant?’

‘Under the ‘mere evidence rule’, the government could search for and seize contraband, instrumentalities, or fruits of a crime, but not mere evidence of a crime.’

This rule was abandoned in Warden v. Hayden –US. Every state now interprets its own constitution to allow such searches. Based on Katz v. United States, where the definition of a search depends on the reasonable exp ectation of privacy, rather than on any property interest of the suspect.

Business Records:

Fifth Amendment not implicated. (Andreson v. Maryland –US). A search of a person’s business documents does not amount to ‘compelled testimony’, because the person created the documents voluntarily, and is not forced to participate i n the government’s search or seizure of the documents.

Private Papers:

(State v. Andrei –Me) There is no absolute bar to the search of private papers.

(State v. Bisaccia –NJ) Some private papers might be beyond the reach of a government search, even if supported by probable cause and a warrant.

a. A judge may insist on extra peculiarity in a warrant authorizing a search for books or papers. (Lo-Ji Sales, Inc. v. New York –US)

a. Banking Records held by third Parties (private papers):

 

Federal Rule: (United States v. Miller – US) A bank’s customer has no reasonable expectation of privacy in records relating to his or her account.

Majority Rule: (Burrows v. Superior Court –Cal) A bank’s customer has a reasonable expectation that the matters he reveals to the bank will be used by the bank only for internal banking purposes. (A customer’s disclosure is not entirel y volitional, since it is hard to live in society without a bank account).

I. Burden of Proof:

While it is the government who bears the burden of proof for warrantless searches at a suppression hearing, it is the Defendant who must carry the burden of proof for warranted searches.

II. Anticipatory Warrants:

(State v. Craig Parent – Nev. 1994)

Requirements for magistrate to protect against its premature execution:

a. listing the conditions in clear, explicit and narrowly drawn terms (to avoid misunderstanding or manipulation by government agents.

a. Magistrate should take care to require independent evidence giving rise to probable cause that the contraband will be located at the premises at the time of the search.

 

 

a. Scope of warrant should be no narrower than the scope of the search which would be allowed under the "exigent circumstances" "exception.

 

 

State statute provided for issuance of a warrant to search or seize any property "…Designed or intended for use or which has been used as the means of committing a criminal offense…"

Majority Rule: (State v. Canelo –NH) Substantial majority of states allow magistrates to issue anticipatory warrants in some circumstances. Many states upholding the warrants reject the warrant in the particular instance as being based on insufficient information to support a finding of probable cause – even probable cause contingent on future events.

1. Administrative Warrants:

 

Rule:** (Ronald Camara v. Municipal Court of San Francisco –US) Balance governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. Eg: was there an emergency d emanding immediate access.

Reasonableness is the ultimate standard/Consitutional mandate of reasonableness.

Rule-Sliding Scale: (New York v. Burger – US) The balancing method of determining the reasonableness of a search is available whenever there is a ‘special need’ for law enforcement.

Policy Reason: One of the justifications for allowing administrative search warrants appears to be the modestly invasive nature of the searches they justify.

1. Other Constitutional Rights:

 

The Fifth Amendment is irrelevant to search issue. "The 5th Amendment may protect a person from complying with a subpoena because the act of production may constitute a compulsory authentication of incriminating information. However, a seizure of the same items by law enforcement officers differs in a crucial respect –the individual against whom the search is directed is not required to aid in the discovery, production or authentication of incriminating evidence."

 

 

1. EXCEPTIONS TO SEARCH WARRANTS:

 

exigent circumstances: (to enter a home without a warrant)

to prevent imminent destruction of evidence

i. flight from police

ii. preventing harm to persons inside premises (this includes firefighters entering a building, and remaining there for a reasonable time to investigate the cause of the blaze)

iii. searching in ‘hot pursuit’ for a suspect (this includes entering a home of a third party in pursuit of the suspect)

iv. search for bomb (Smith v. Higbee – Colo)

v. search for kidnap victim (Smith v. State – Miss)

 

**(Hawkins v. State – Ind)

Majority Rule: The prosecution must show that exigent circumstances exist to overcome the presumption of unreasonableness that accompanies all warrantless home entries. For example when government agents believe: (a) evidence ma y be destroyed or removed or (b) a suspect may escape.

I. Creating exigencies:

(State v. Santana –NH) no exigent circumstances when police purchased half of narcotics, then conduct search to secure other half, despite willingness of suspect to complete second half of sale.

I. Time period:

(Segura v. United States-US) search valid where police officers remained in apartment for 19 hours until warrant was obtained.

II. Other areas besides home:

III. (Brown v. State – Ind) Indiana extended special protection of home to include searches of cars.

IV. TERRY SEARCH FOR WEAPONS:

 

Frisk for weapons in Terry proceeds on a reduced level of justification (reasonable suspicion) because of the especially urgent nature of government’s objective in that setting (the safety of the officers and others in the area) and the limited nature of the search.

A. Rule: Where a police officer observes unusual conduct which leads him to reasonably conclude, in light of his experience that criminal activity might be afoot, and that persons with whom he is dealing may be armed and presently dangerous, offi cer may, for the protection of himself and others in the area, conduct a limited search of the outer clothing for weapons which might be used against him. This search is reasonable under the 4th Amendment and any weapons seized may properly be introduced in evidence against the person whom they were taken.

 

TERRY V. OHIO

1. **(Terry v. Ohio – US)

 

Standard: Reasonable Suspicion/ No SW

Rule/Test for limited search of outer clothing:

Whether officer/ reasonable prudent person is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others. If so, he is entitled to conduct a care fully limited search of the outer clothing in an attempt to discover weapons that might be used against him.

Policy Reasons: Balance the governmental interest which allegedly justifies intrusion against constitutionally protected interests of the private citizens.

(If a ‘stop’ and ‘frisk’ give rise to probable cause to believe a suspect has committed a crime, then police should be empowered to make a formal ‘arrest’, and a full incident ‘search’ of the person.)

A. Scope of Terry Search: (of person)

 

1. Plain Feel Doctrine:

 

Standard: Reasonable Suspicion/ No SW

Rule:** (Commonwealth v. Arthur Crowder-Ky) Exception to warrant requirement occurs when (a) the requirements of Terry are otherwise complied with( ie. it is a lawful search) and (b) the non-threatening contraband is immediately apparent fr om the sense of touch, the officer is not required to ignore it. Officer can conduct limited outer search (based on Terry Rule), and proceed searching if something incriminating, i.e. a weapon, is felt.

Ct. held that officer’s further exploration of D’s pocket was unconstitutional because the nature of the non-threatening contraband was not immediately apparent.

Federal Rule:

(Ybarra v. Illinois –US) A frisk of a person designed to obtain evidence of a crime cannot be based on reasonable suspicion; the officer must have probable cause that the evidence will be on the person, even if the brief search is no more i ntrusive than a weapons frisk.

 

1. Most State Courts view this as a matter of federal constitutional law. New York, however, rejected the "Plain Feel" Doctrine (People v. Diaz –NY) – touching is inherently less reliable than seeing an object, and may not conc lusively establish an object’s identity or criminal nature.

 

 

A. Automatic authorization to Search:

 

1. (U.S. v. Robinson – US) Once there is an arrest, police need no justification for the search beyond the justification for the arrest.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. CONSENSUAL SEARCHES

 

Consent allow police to make a search in a case where probable cause is lacking.

‘Police may make a constitutional warrantless search if they receive the consent of the individual whose premises, effects, or person are to be searched. Because of the ease of gaining consent to search in many cases, a substantial portion of all sear ches are conducted by consent.’

1. Consenter’s Knowledge of Right to Refuse:

 

**(Schneckloth v. Bustamonte – US) Ignorance of right to refuse consent was only one of the factors to be considered when determining whether or not the consent was valid. Consent must be voluntary.

Majority Rule: Totality of the Circumstances standard. Consent is voluntary :look at characteristics of suspect –youth, education, capacity, and if it is not a product of (i) duress or (ii) coercion, express or implied – look at detail s of interrogation. (Based on 4th and 14th Amendment requirements.) Coercive police questions, and the possibly vulnerable state of the consenter must be taken into account.

Bustamonte does not expressly state whether the test was objective or subjective. Note that under Mendenhall, the court stated that the suspect’s subjective mental state was relevant.

1. Consent after a traffic stop:

 

Federal Rule: (Ohio v. Robinette – US) Officer who asked motorist for consent to search after conclusion of valid traffic stop did not have to advise motorist that he was free to leave- motorist’s ignorance irrelevant.

State Rule: (State v. Gomez – NM) considered issue of motorist’s ignorance as possibly relevant. Noted use of bright-line rules in auto case and the rejection of such rules in most other search and seizure contexts.

1. Consent While in Custody:

 

(US v. Watson –US) Suspect’s consent voluntary despite the fact he was not told of his right to refuse. Court held that despite custodial arrest, and lack or warning of right to refuse, D’s consent was voluntary.

1. Capacity to Consent:

 

(State v. McDowell –NC) Case involved mentally retarded girl. Court can take intoxication, mental capacity and maturity into account in evaluating consent, but often find such individuals able to consent.

1. Scope of Consent:

 

Majority Rule: (Florida v. Jimeno –US) (a) A consent search is only valid if the government agent conducting the search remains within the bounds of the consent granted. (b) ‘Standard for measuring scope of a suspect’s consent under the 4th Amendment is that of objective reasonableness.’ (c) What would the typical reasonable person have understood by the exchange between the officer and the suspect? In this case, Ct. held it was ok for police to search closed container in car after consent was given to search ‘vehicle’.

o Where container inside car is owned by passenger, and owner gives consent, consent does not extend to passenger’s container.

 

1. Withdrawal of Consent:/CONTRARY:

 

‘A person who has consented to a search can withdraw that consent (or restrict its scope) at any time before the completion of the search. However, the person must make an unequivocal withdrawal, through words or actions, or both. An action withdrawi ng consent must be clearly inconsistent with the prior consent, such as a refusal to open a door or a container.’

1. Duration of Consent/ Second Search/CONTRARY::

 

Rule: (State v. Brochu –Me) An open-ended consent to search contains an implied time limitation; the search must be completed as soon as it is reasonably possibly to do so. Ct. held that where a second search occurred the day aft er the first, of D’s home, the consent from the first did not extend to the second.

1. Consent by Third Parties:

 

I. Types of Third Party Consenters:

**(a)Authority/Access- CONTRARY one party can retract other party’s consent (b) Mistake as to Joint Authority, (c) Agency-where D has authorized third party to consent, (d) Property of Consenter, (e) Assumption of risk-like lending a third party auto t o drive, D has assumed risk that the third person might see or scrutinize D’S property.

A. Federal Rule: ** (US v. Matlock –US) The third party must have the authority, or at least the apparent authority, to consent to the search. The third party’s consent must be voluntary.

B. State Rule: (State v. Reinaldo Maristany – NJ) Consent may be obtained from the party himself, or from a third party who:

a. possess common authority over the property, or

a. whom the police objectively, reasonably believe has authority to consent, based on the person’s actions etc.

a. voluntarily consents and

a. understands his right to refuse consent

 

I. C. Apparent Authority Rule:

** (Illinois v. Rodriguez – US) A third party search is constitutional, so long as the officer had a reasonable belief that the third party had authority to consent. Objective Test: ‘Would the facts available to the of ficer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?’

I. Types of Third Party Relationships:

o Lessor consenting for lessee

o Co-tenant consenting for co-tenant - (In re Welfare of D.A.G.) Ct held serach invalid because D/third party was not given opportunity to refuse consent.

o Parent consenting for child - equal access to room.

o Child consenting for parent – whether child knew of right to refuse consent (Harmon v. State –Ark.)**

o Absent, nonconsenting party (with interest in the property) - State and Federal Courts have almost always upheld third party consents when they contradicted the explicit instructions of the absent search target.

 

a. (State v. Leach –Wash) no valid consent when target is present and objecting.

a. (People v. Sanders –Colo) Ct. approved of search of trailer, consent was obtained from an absent occupant, and target of search was present and objecting.

 

1. Unequal Interests in Property:

 

Majority Rule: The authority of a third party to consent to a search usually turns on the third party’s own interest in the property, not because the party acts as an agent for the other owener.

Minority Rule: (Silva v. State – FLA) Ct. required that third party have at least an equal interest with other owners before allowing that person to consent to a search of the property, at least where the superior party is present and objecting to the search.

1. Antagonism:

 

Like in cases where one spouse will consent to a search in an effort to injure the other person when they are having a personal conflict. Cts. require that D spouse bear burden to prove that consenting spouse did not have access/authority to consent t o the search.

(State v. Bartram – Tenn) A third party’s consent to search does not depend on any agency relationship with the target of the search. It instead depends on her own interest in the property.

1. Consent Through Lease Provisions:

1. Prospective Consent and conditioning of government benefits:

 

Courts limit the extent to which a landlord may waive a tenant’s privacy rights and consent to police searches by enforcing lease terms allowing the landlord access only for inspections for emergencies.

1. Group Consent:

 

Collective consent is generally not allowed as a basis to waive the rights of an entire group. (Pratt v. Chicago Housing Authority –ND) ‘Ct. rejected broad scale searches and sweeps of multiple apartment units, including searches of closets, drawers, and refrigerators, cabinets and personal effects, days after multiple, random gunfire was heard throughout a complex, and despite consent from many tenants.’

1. Doctrine of ‘Unconstitutional Conditions":

 

Issue of whether conditions placed by the government of receipt of government support are unconstitutional.

 

I. SEARCHES INCIDENT TO ARREST

 

Under the longstanding doctrine of ‘search incident to arrest,’ police may search the person of the arrestee, along with some area near the arrestee, without any independent probable cause or warrant to support the search.

A. Federal Framework: ** (Chimel v. California –US): The search may extend to person and the area within the immediate control of the arrestee/the area in which an arrestee could reach a weapon or destroy evidence.

 

Most post-Chimel cases have assumed that the D, even after his arrest, maintains control over a substantial area. Some of those courts state that Chimel’s incident to arrest exception (to warrant requirement) does not apply to minor crimes. (But see Robinson, where Ct. allowed search of person of driver who was stopped on suspicion of driving with a revoked license).

Standard: Reasonable Per Se/ No SW

1. Majority Application of Chimel Rule: Factors to determine the validity of the search (in a house):

a. Whether D was handcuffed at the time.

a. Whether there are multiple defendants.

a. Whether there are allies of suspect nearby that might destroy the evidence.

a. Whether officers are physically between suspect and the area/object to be searched.

a. Whether officers have any control over the area/object to be searched.

a. Any post-arrest movement by the arrestee (eg. To get dressed).

 

2. Strong Minority Application of Rule: ** (State v. Marc Hufnagel – Colo) Officer needs to only show that the search was contemporaneous to or immediately after arrest. State does not need to show that D was physically able to re ach place searched.

3. A Rule that would afford more protection than the federal constitution would require and arrest warrant and a search warrant beforehand.

A. Automatic Authorization to Search:

 

**(United States v. Robinson – US) Police need no justification for the search beyond the justification for the arrest. (No armed or dangerous requirement, no immediate control prerequisite) This allows the search of the person incident to ar rest to be more intensive than Terry searches.

Traffic stop. D was stopped on suspicion of driving with a revoked license.

A. Protective Sweeps:

 

**(Maryland v. Buie –US) Court upheld two types of protective sweeps outside the area of D’s immediate control:

Rule: (a). officers may look in closets and other places immediately adjoining the place of the arrest- from which another person may launch an attack on the person, and (b) officers may search other areas in the house for any persons who migh t pose a danger to them, but only if they have a reasonable suspicion that the ‘‘sweep’’will reveal the presence of such a person. In such a situation, the search is limited to the area where a person may be found.

A. Subsequent Searches – How Much Time:

 

1. Pre-1974 Federal Rule (Vale v. Louisiana –US): Required that searches incident to arrest be ‘substantially contemporaneous with the arrest’. Ct suggested warrantless search would be ok where officers knew that contraband was ‘in the pr ocess of destruction’ when the search was begun, or if officers knew that these items were ‘about to be removed from the jurisdiction’

1. Post-1974 Federal Rule (United States v. Edwards – US) Ct. upheld a search of D’s clothing, for a specific item, ten hours after he was arrested. Ct. limited such searches to those which are ‘not unreasonable’ either because of t heir number or their manner of perpetration.

1. Inventory Search:

 

Most State Courts allow searches at the police station, well after the time of arrest, of objects ‘immediately associated with the person’ which could have been searched at the time of arrest, including clothing, wallets and purses.

A. Searches Prior to Arrest:

 

(Warden v. Hayden – US) Ct. allowed search of small area, to see if weapons were concealed, when the officers were in ‘hot pursuit’ of the suspect.

Ct. may allow search based on ‘exigent circumstances’ to find out if a suspect is in an area.

 

I. INTRUSIVE BODY SEARCHES

 

Because of the highly intrusive nature of this type of search, the search is allowed only when the government makes a showing that is even more demanding than probable cause.

Policy: Balancing test to determine the reasonableness of any such intrusion. The individual’s interests in privacy are weighed against society’s interests in conducting the procedure.

A. Federal Constitutional Standard for Warrantless Search Involving Intrusion of Body **(Schmerber v. California):

 

1. Clear indication that intrusion would produce evidence of a crime;

1. Test was commonplace and involved no risk of trauma;

1. Test was conducted in a reasonable manner, such as carried out by a physician in a hospital environment.

 

A. Non-Invasive medical search Techniques:

 

Some cases approve the taking of a blood sample based only on a showing of probable cause.

A. Stomach being pumped:

 

1. (State v. Strong -Iowa)

 

Rule/Test: (a) the extent to which the procedure may threaten the safety or health of the individual; (b) the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity; (c) the community’s inter est in fairly and accurately determining guilt or innocence. (Policy)

A. Search in the Field:

 

1. (State v. Hodson – Utah) Court condemned use of throat hold and pointing gun at suspect’s head to convince him to spit out drugs in his mouth.

Where an especially intrusive search technique takes place in the field rather than in a health care facility, sometimes courts will absolutely forbid the practice (without regard to the government’s level of certainty that the search will be successf ul) under the due process clause of the federal or state constitution.

A. Strip Searches:

 

Some statutes bar consent to strip searches, others allow consent, and others require special procedures for obtaining consent, and some states say nothing about consent.

Majority of State statutes and police department policies place special limits on strip searches and body cavity searches. There are usually two limiting techniques at work in the statutes:

1. Substantive standards – describing a subclass of cases not eligible for this type of search (such as those accused of particular offenses), or cases where the police do not have adequate reason to believe that the search will succeed.

 

2. Focus on the process of authorizing such a search (by requiring a judicial warrant, or supervisor approval, or a written record of any decision to conduct such a search).

A. The Mouth Exception:

 

(State v. Peterson – Iowa) Upheld forced search of mouth as search incident to arrest.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. SEARCH OF OUTER BOUNDARIES OF HOME

 

1. Curtilage:

 

Many cases, federal and state, declare that the constitutional protection of privacy is at its highest in the home and the area immediately surrounding it (curtilage). Therefore, a search of curtilage still has to be supported by a warrant and probabl e cause.

A. Rule/Definition: **(United States v. Dunn –US) Factors used to determine whether property is curtilage (for rural, wooded areas):

a. the proximity of the area to the home,

a. whether the area is included in an enclosure surrounding the home,

a. the nature of the uses to which the land is put, and

a. the steps taken by the resident to protect the area from observation by people passing by.

 

1. Outside Curtilage / Open Fields:

 

A. State Rule: **(State v. Dixson –Oregon) A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs.

If an individual has a privacy interest in land outside the curtilage of his dwelling, that privacy interest will not go unprotected simply because of its location.

Whether police had an objective reason to believe (based on signs posted, fences etc.) that they were intended to be excluded from the property.

o About 10 States follow the Dixson Rule.

 

B. Federal Rule: ** (Oliver v. United States – US) [VERY POWERFUL Rule. Does not require owner to manifest an intention to exclude public by erecting barriers. CONTRARY - Dixson]Any asserted expectation of privacy in open fields is not an expectation that society regards as reasonable.

This rule came as a surprise because earlier, the court in Katz v. United States had declared that the 4th Amendment protected expectations of privacy rather than property interests.

o About 15 states follow the Oliver Rule.

 

 

1. Flyover/ Plane:

 

D must establish both subjective and objective expectation of privacy in order to establish that a search occurred.

a. (Henderson v. People):

 

Rule: Mere observation by government officials of something plainly visible to anyone does not constitute a search for constitutional purposes.

In order for it to be a search, Ct. must consider:

o whether the item was in plain view to anyone flying overhead

o altitude (plane never flew below 500 ft).

o whether observation posed only a limited degree of intrusiveness. Eg: dust, noise etc.

o whether D had a reasonable/legitimate expectation to privacy – objective: one that society considers reasonable.

 

a. **(Florida v. Riley- US)

 

Majority Rule: Totality of Facts and Circumstances Standard to determine of D had a reasonable expectation to privacy.

o Court held that plane flying 400 ft. overhead did not consitutute a search for constitutional purposes.

o Plane did not intrude on property holder’s reasonable expectations of privacy, mainly because the helicopter remained within legal airspace as defined by the FAA regulations.

 

1. View from a ladder:

1. Use of Devices:

 

(State v. Brooks)

Rule: So long as officer remains in position properly available to her, she can use other devices to get a clearer or closer look at the items in plain view. In Brooks, officer used flashlight.

1. Abandoned Property

 

a. Trash:

(Moran v. State - Ind)

Majority Rule: Police searching through trash placed on sidewalk for collection the following morning did not violate any of D’s rights. D had no reasonable expectation of privacy. Based on Katz 2 prong reasonable expectation of privacy.

I. SEARCH AT WORKPLACE

 

Standard: Reasonable Suspicion

1. Majority Rule: (State v. Edwin Bonnell –Haw) [Post Office]. Workers can hold some reasonable expectation of privacy in items at their workplace and in activities they carry out in the workplace. Crucial Question: Whether work er has some control over access to the area.

2. Government as Employer:

Rule: (O’Conner v. Ortega –US) ‘Reasonablenesss under all the Circumstances Test: Whether (a) employee has a reasonable expectation of privacy in his office or other workplace area, and if so, (b) whether the search or seizure is reaso nable.’

Threshold Issue: ‘Whether the employee has a justifiable expectation of privacy with respect to his office, desk, file cabinet etc.’

Neither a warrant or probable cause are necessary, so long as the government employer is conducting, (a) a non-investigatory work-related search (such as retrieving a file), or (b) an investigation of work-related misconduct. Reasonable Suspicion stan dard applies.

II. Search at Schools and Prisons

 

Standard: Reasonable Suspicion

This falls under the category of Administrative Searches, where the government has purposes for its search other than the enforcement of the criminal law. Level of justification does not rise to that of probable cause.

A. Schools:

 

1. Majority Rule: ** (New Jersey v. T.L.O. – US) Reasonable Suspicion standard. Neither warrants or probable cause were necessary to justify a search by school officials, even if the evidence found during the search led to a criminal or juvenile conviction. (The court reasoned that this was partly because of the special environment of the school).

o Relaxed requirements for school searches based partly on the non-criminal nature of the search. Usually based on a reasonable suspicion of a violation of the law or rules of the school.

o Scope of the search should still be reasonably related to the objectives of the search and not excessively intrusive in light of age and sex of the student and the nature of the infraction.

 

2. State Rule: ** less protection than Federal Rule** (In the Matter of Gregory M–NY) Less than reasonable suspicion. Individualized suspicion/evident suggestion. Court allowed a search to go forward based on information abou t a student’s bag that went thud. Investigative search of outer bag led security officer to feel the shape of a gun.

 

3. Urine Testing of Students:

 

Rule: ** (Vernonia School District 47J v. Wayne Acton) A search unsupported by probable cause can be constitutional when special needs beyond the normal need for law enforcement, make the warrant and probable-cause requirement impractible.< /P>

Court held that a ‘school district may require such a test, at least where the results are not shared with law enforcement authorities and the testing is done in a relatively unintrusive manner. (Although Ct. stated that least unintrusive aspect was not a requirement).

 

Policy/Balancing Test: The ‘reasonableness of a search is to be judged by balancing its intrusion on the individual’s 4th Amendment interests against its promotion of legitimate governmental interests.’

Urine testing of student athletes reasonable because: (a). legitimate privacy expectations are less with regard to student athletes (eg. Shower in communal bathroom),

(b) the subject is a child who is committed to the temporary custody of the State as schoolmaster,

(c) the specific aspect of the test was to look for drugs (and not to check if a student was pregnant, diabetic etc.)

 

Note: Drug testing in other contexts – Majority Rule: (Twigg v. Hercules Corporation –W.Va)

Drug testing among current employees-reasonable suspicion standard. (National Treasury Employees Union v. Von Raab – US) random or routine drug testing ok if the job category is one where drug use presents a special concern for the employer.

 

A. Prisons:

 

Majority Rule: (Hudson v. Palmer – US) The 4th Amendment does not place any limits on a prison guard’s search of the prison cell of a convicted offender. "The right of privacy in traditional 4th Amendment ter ms is fundamentally incompatible with the close and continual surveillance of inmates required to ensure institutional security and internal order."

Policy: "Society would insist that prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security."

A. Pretrial Detainees versus Convicted Offenders:

 

Federal Rule: (Bell v. Wolfish –US) 4th Amendment protects neither sentenced nor pretrial detainees from a prison policy requiring inmates to undergo strip and body cavity search after visit with outsiders.

State Rule: (DeLancie v. Superior Court –Calif) monitoring conversations of pre-trial detainees not ok.

State Rule: (State v. Martin – NC) search of pretrial detainee’s cell by jailor not subject to 4th Amendment reasonableness test.

 

 

 

 

 

 

XI. SEARCH OF CAR

 

Where police make a routine stop, for example to issue a traffic ticket, they do not have the automatic right to search the vehicle.

I. Usual Standard: Probable Cause

A. Use of Pretext to make stop:

 

Pretext – Subjective Intent

Federal Rule: (Whren v. United States –US) If police have a vague suspicion that a car may be engaged in an illegal activity, and observes car making a minor traffic violation, police may use that violation as a pretext to stop the m otorist. If the stop then gives rise to probable cause of a crime, police can conduct a warrantless search.

CONTRARY Rule: Terry Search of Car ok.

Minority/State Rule (Tate-Ga.) Stop unreasonable because it would not have been made by a reasonable officer, as occurred as a result of a pretextual/invalid reason.

B. Inventory Search of Car

 

 

Standard: Police may make a post-impoundment search of vehicle without probable cause. Reasonableness satisfied once car is impounded. No search warrant.

Majority Rules: (a.) **(Colorado v. Bertine –US) Federal constitution allows routine and warrantless inventory search of impounded vehicles or other personal property without any probable cause or other individualized suspicion. (b.) * *(Hathman) Inventory search must be in good faith and in accordance with procedure or established routine. A closed container may only be opened if there are policies or procedures in place for container search.

**(Florida v. Wells-US): Because there was no policy for opening closed container, search was invalid.

 

 

1. Whether to impound car in first place:

 

(Fair v. State –Ind) prosecution must demonstrate that (a) the belief that the vehicle posed some threat or harm to the community-objective standard of sound policing, (b) the decision to combat that threat by impoundment was in keeping with es tablished departmental routine or regulation.

1. Scope of search: (Illinois v. Lafeyatte –US) Rejected the least intrusive means as a requirement to the federal constitution.

1. Bad faith: / CONTRARY (Colorado v. Bertine –US) Inventory searches could be challenged if they were conducted in bad faith or for the sole purpose of the investigation.

1. Inventory Searches in the Field:

 

Jurisdictions which allow inventory searches typically allow them to take place in the field or at the point where a vehicle is impounded.

1. Personal Belongings:

 

(State v. Holzapfel – Mont.) Most states impose fewer restrictions on inventory searches of personal belongings than on inventory searches of cars.

 

Federal Rule: (Carroll v. United States –US) Police can search an automobile he stops on the highway without a warrant if there is probable cause to believe (a) it contains contraband or (b) evidence of a crime.- ex igent circumstances. Plus fact that ‘vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’

Federal Rule: middle ground (Michigan v. Long –US) [must be justified/officer must have facts.] Police can do a weapons search in the passenger compartment of an automobile when they have a reasonable belief that the driver posed a threat to their safety.

 

 

 

 

 

 

 

A. Search of Car Incident to Arrest:

 

Majority Federal Rule: -very powerful- allows police to do a lot **(New York v. Belton – US) "When a policeman (a) has made a lawful custodial arrest of the occupant of an automobile, he may, as (b) a contempora neous incident of that arrest, (c)search the passenger compartment of that vehicle."

State Rule: ** (State v. Eileen Pierce –NJ) Court rejected Belton rule. Looks at the element of Control as factor for determining reasonableness of search. Offers more protection of Belton. Ct did no t approve of Belton bright-line rule to authorize vehicular searches incident to all traffic arrests poses too great a threat to rights guaranteed by" the NJ state constitution."

 

Minority Rule: (People v. Blasich –NY) Officer must have reason to fear his safety , or reason to believe evidence will be destroyed, before he searches any area in the vehicle beyond what is within the immediate control of the arrestee .

 

Scope of Search:

Rule: (Stout v. State –Ark.) Hatchbacks, which can be reached from passenger compartment, may be subject to a search incident to arrest.

I. For Minor Offenses:

Majority Rule: (State v. Cook –Iowa) No limit to power to conduct searches of cars incident to arrest on the basis of the severity of the offense.

 

A. Automobile Exception

 

Automobile exception is an exception to the warrant requirement but not an exception to probable cause. If police have probable cause, under the automobile exception they may stop the car and conduct the search.

Search should not exceed the scope based on probable cause, of what the police expect to find (or it may be rejected).

Standard: Probable Cause

Majority Rule: (California v. Acevedo –US) Police may make a warrantless search of vehicle when they have probable cause to believe that the vehicle contains contraband or evidence of crime. Can also search containers in car.

Held: Police could conduct a warrantless search of a closed paper bag, even though they had probable cause to search only the bag and not the car as a whole. Probable cause is required , but a warrant is not.

 

Minority Rule: (State v. Phillip Savva –Vt) Mobility per se is not an exisgent circumstance requiring an immediate search. Govt. has burden of showing that evidence might be lost before a warrant is obtained.

A. Standard: Probable cause and SW required

Policy from Savva: D’s expectation of privacy in packages contained in the hatchback of his car/unreasonable government intrusions.

Objective Test: ‘Whether a reasonable person would know that someone placing articles as D did intended to exclude them from public view.’ Protect D’s possessory interest.

I. Other Rules/Positions:

a. Warrant necessary for the search of a footlocker found in the open trunk of a parked car. (United States v. Chadwick –US)

a. Warrant necessary for an unlocked suitcase in trunk of taxicab stopped by police, when the police had probable cause to search the suitcase but not the cab. (Arkansas v. Sanders –US) OVERRULED BY Acevedo.

a. Warrantless search ok of a closed paper bag (drugs) and zippered pouch(cash) in the trunk, because the police had probable cause to search the vehicle generally, and not just probable cause to search the containers. (United States v. Ross –US) ‘Gives all parts of the car and its contents same treatment, those exposed to public view and hidden, open and closed, locked and unlocked.’

 

Ross Court: "An individual’s expectation of privacy in a vehicle and its contents may not survive probable cause is given to believe that the vehicle is transporting contraband."

Ross/Acevedo Rule – Places motor vehicles and their contents outside the warrant protection of the 4th amendment even if exigent circumstances do not exist.

a. ‘Mobility is an exigent circumstance as a matter of law.’ (Chambers v. Maroney –US) but see Savva for contrary position.

 

Exterior of Cars: (Cardwell v. Lewis –US) Refused to apply 4th amendment to examinations of tire wear, tread, or the removal of dirt or paint.

Viewing The VIN: (New York v. Class –US) Non-custodial arrest.

Rule: If officer has to reach into car and remove an object blocking the VIN, or lift the hood or open the door, or look under the vehicle to view the VIN, no search has occurred.

I. Mobile Homes:

Federal Rule: (California v. Carney –US) A person’s expectation of privacy with an automobile is a lot less than his home or office. Cars are subject to more governmental regulation and inspection requirements. A mobile home will be tre ated like a vehicle, rather than a dwelling, when it is parked in a parking lot. (the court hinted that if the mobile home was parked in a place that suggested it was being used a residence, then the results/expectation of privacy might be different.

A. Terry Search of Car:

 

Standard: Reasonable Suspicion

Separate justification for car searches come from application of Terry:

1. Officer must have a proper basis for stopping the car,

2. Then the officer may automatically order passengers and driver out of the car,

3. Then, if officer has reasonable suspicion to believe there are weapons in the car, he can search passenger compartment, under seats, and any containers large enough to hold a weapon.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARRESTS

I. Standard: Probable Cause

I. Definition of Arrest

 

When an officer stops and detains a person under circumstances which he reasonably believes that the person has committed/is committing a crime.

1. The difference between a stop and an arrest:

Factors include: (a) amount of time detention lasts, (b) techniques used to restrain suspect (eg. Handcuffs), (c) the location of the suspect, including distance covered during the transportation of the suspect, and (d) what the police officers (i ) say and (ii) intend about the purposes of the detention.

 

I. Majority Position for (a) and (c):

(State v. Jones) arrest without probable cause occurred when police transported suspect to station without his consent, asked him to wait in reception area for one hour – total time of detention was three hours.

II. Majority Position for (b) and (c):

(State v. Blackmore – Ariz) Being handcuffed and placed in the back of a police car do not, alone, convert an investigative stop into an arrest.

III. Majority position for ©:

(Dunaway v. New York – US) Recognized possibility of non-arrest detention based on reasonable suspicion for questioning at police station. (In this case, Ct. held that an arrest was made without probable cause sine D was taken to st ation for questioning without being told he was under arrest.)

 

A. Investigative Detention:

 

Definition **(Florida v. Roper –US) "Must be temporary and last no longer than is necessary to effectuate the purpose of the stop."

1. Scope of investigative Stop:

**(In re M.E.B. –DC) Permissible police action during the stop depends on whether the police conduct was reasonable under the circumstances. (eg. Delays, time, handcuffs, transporting suspect) Stop did not constitute illegal/unconsitutional arrest. R.S. needed for stop.

B. Time (to distinguish stop from arrest):

1. Depends on the purpose of the stop and the amount of time reasonably needed to effectuate the purposes, assuming officers acted diligently in conducting investigation.

(United States v. Sharpe –US) 20 minute auto stop ok to investigate potential narcotics violations.

(Skelly v. State –Okla) No arrest when stopped motorist had to wait 20 minutes for drug sniffing dog.

o The majority of states allow for a flexible determination of when enough time has passed to convert a stop into an arrest (usually 15-60 minutes).

o Some state statutes have a time limit (eg. Arkansas –15 minutes) after which time the detained person is either released or arrested.

o Courts without a state statute have to pay close attention to the amount of time lapsed.

 

C. Collective/Corporate knowledge Doctrine:

Majority Rule: (Woodward v. State –Tex) Probable Cause or Reasonable Suspicion may be assessed based on collective kowledge the police have, even if no individual officer or department has the pertinent information at the time of the st op or arrest.

 

 

 

 

 

 

 

 

 

 

 

 

II. Arrest Warrants

 

 

Probable cause needed to get warrant. (Kiper)

A. Although arrest warrants exist in all jurisdictions, they are used less than search warrants because courts have rarely held them to be a constitutional requirement.

o Not subject to same specificity as search warrant. Just requires specific description of person.

o Warrant should contain crime of which the subject is accused.

o Usually good only in the state of issuance (another state would involve extradition)

o Police can seize incriminating items in ‘plain view’ during an arrest.

 

A. Home Arrest Warrants:

 

1. To Enter Suspect’s Home:

 

Majority Rule: *** (Payton v. New York – US) Police may enter a dwelling to serve an arrest warrant founded on Probable Cause, only when there is reason to believe the suspect resides there and is present inside.

**(Watson) What is easy to justify in public, is hard to justify in somone’s home. Rule:

**(Welsh) Part of a definition of exigent circumstances – to arrest in one’s home has something to do with the severity of the offense. Rule:

1. Third Party Home:

 

Majority Rule: **(Steagald v. United States –US) /** (State v. Jason Kiper) A search warrant, based on probable cause, is ordinarily required to enter the home of a third party in order to execute an arrest warrant for a person b elieved to be present there.

III. Police Discretion in the Arrest

 

A. Domestic Violence: (Iowa Code)

 

1. If police has reason to believe domestic abuse has occurred, he may use all reasonable means to prevent further abuse including but not limited to:

o staying on the scene if there is a possibility of further danger to victim

o assisting in obtaining medical treatment.

o providing victim with immediate notice of rights.

 

1. Police usually reluctant to make arrests for domestic violence, and usually prefer to separate parties involved in dispute.

1. Minneapolis Police Department Study indicates that police should probably employ arrest in most cases of minor domestic violence.

1. Common Law did not give police authority to make a warrantless arrest for a misdemeanor committed out of his presence. This has survived to some extent in some state statutes.

1. More than 15 states have passed statutes appearing to mandate arrest as the proper police response to evidence of domestic violence.

 

A. Arrest Statutes for Other Crimes:

 

Some statutes provide for powers of arrest for particular offenses which are broader than common law arrest doctrine would support. (eg. For violation of driving code –ND)

A. Racial Patterns in Arrests:

 

 

IV. Paper Arrests

 

The range of offenses where the officer can use citation rather than arrest is expanding. There are, however, limited circumstances the law restricts the officer to using a citation instead of an arrest, eg, for some minor non-traffic violations o f the criminal law (called infractions or specified misdeamenors.)

Rule: ** (State v. Julie Harmon –Utah) Ct. applied Terry balancing test to assess the officer’s choice of arrest. Weighed govt. interest in taking a suspect into custody.

State statute authorized officer to make warrantless arrest for any public offense committed or attempted in the presence of the officer, and gives officer ticket/citation alternative to taking the person to jail.

A. Citations as replacement for arrest:

 

‘Almost half of the states have statutes that attempt to control the choice between citations and arrests for certain traffic offenses. Some state that the officer ‘shall’ use the citation, while others ‘require’ the officer to give a citation unless the officer can demonstrate one of the designated exceptions.’

A. Search incident to Citation:

 

(People v. Hazelwood-NY) ‘If an officer could search incident to arrest, and chooses not to arrest but instead issue an appearance ticket, the officer can still conduct a search.’

I. Use of Force in Making Arrests

 

Majority Rule: ** (Tennessee v. Edward Garner –US) If officer is being threatened w/ a weapon – level of justification is met. Probable cause.

To determine the constitutionality of a seizure, ct. must balance the nature and quality of the intrusion on suspect’s 4th amendment interests against the importance of the governmentan interests alleged to justify the intrusion. The balanc ing of competing interest. Suspect has a fundamental interest in his own life.

A. Civil Remedies for excessive force during arrests:

 

Claims may be made under state tort law, under federal civil rights

laws, and other times both.

A. Excessive non-deadly force:

 

(Coll v. Johnson –VT) Civil damage claim may be founded on incident involving non-deadly force.

A. Racial patterns in the use of deadly force:

 

Study findings- Regardless of geographic scope, the percentage of police shootings involving black victims far exceeds the percentage of blacks in the population.

A. Social impact of Garner: Killings of citizens by police have decreased dramatically, as have killings by citizens of police.

 

 

A. Florida’s Police Continuum of Force:

 

1. Levels of resistance:

a. Presence –when a person breaks the law by the very nature of his presence.

a. Verbal resistance – a person can violate the law and subject himself to arrest by his speech. Eg. Disorderly conduct, shouting ‘fire’ etc.

a. Passive physical resistance – when a lawbreaker, by action or inaction, physically resists action or authority of a law enforcement agent.

a. Active physical resistance – includes pulling away or fleeing.

a. Aggressive physical resistance – when a person turns his active resistance against the officer or another person. It may not be effective, just threatening.

a. Aggravated physical resistance – when resistor makes overt, hostile, attacking movements, with or without a weapon, with apparent intent and ability to cause death or great bodily harm.

 

1. Response Levels (by Police):

 

a. Presence – before giving command, police must establish presence by establishing identity – uniform or badge.

a. Verbal direction – requests or commands, verbally or with body language.

a. Physical control: (in response to level a, b, or c, resistance.)

i. transporters – move an arrested person from one place to another.

i. Pain compliance technique – designed to cause pain but not injury.

i. Takedowns –designed to place an arrestee on the ground for handcuffing eg. Use of handcuffs, leg irons.

i. Countermoves eg. blocks, strikes and reactive techniques- designed to control but not incapacitate.

a. Alternate weapons – use of batons, chemical irritants, and stun guns.

a. Incapacitating force – to incapacitate a lawbreaker temporarily. Includes some strikes and blows.

a. Deadly force – whenever firearms are used. Likely to cause serious bodily harm or even death. Includes baton strikes to the head, and use of police vehicles against other police vehicles.

 

General Rules:

o An officer will escalate up the continuum step by step until the law enforcement goals are reached.

o He must then de-escalate as much as possible, consistent with maintaining control.

o An officer may bypass steps in the continuum if he can explain why the lesser force would not be effective.

o An officer who exceeds the recommended level of force must document acceptable justification.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. REMEDIES FOR UNREASONABLE SEARCHES AND SEIZURES:

 

I. The Exclusionary Rule: Evidence obtained from illegal search or seizure cannot be admitted against defendant (Cite)

A. Letter and Private Documents:

 

Federal Rule: **(Fremont Weeks. V. United States –US) Letters seized without a search warrant in direct violation of the constitutional rights of D, to be used against him in a criminal proceeding, are inadmissable as evidence.

 

 

Other Federal Rule: **(Wolf. V. Colorado –US) Decided that Weeks exclusionary rule would not be imposed upon the states as ‘an essential ingredient of the right.’

I. VS.

*** Contemporary federal Rule: Allowed for exceptions, for uniformity. (Mapp v. Ohio –US) Held that exclusionary Rule is an essential part of both the 4th and 14th Amendments, and that federal and state prosecutors should co-operate in solving crimes. Needless to have different rules/healthy federalism – avoid unnecessary disputes.

A. Mircophone/Tapping in private residence:

 

State Rule: (People v. Charles Cahan –Calif) Accepted exclusionary rule. Court reasoned, however, that it was not mandated to follow the federal rule, but chose to adopt the rule (‘it is more important that the right of privacy guarant eed by the federal and state constitution be respected.

A. Corporate Papers:

 

Rule: (Silverthorne Lumber Co. v. United States –US) Illegally seized corporate papers cannot be used at all. In this case, government had seized the papers, returned them, then issued a subpoena duces tecum to obtain the documents agai n. The Ct. held that exclusion meant ‘that not merely evidence [illegally] acquired shall not be used before the Court but that it shall not be used at all.

A. Contraband:

 

Rule: (Angello v. United States – US) Ct. applied exclusionary rule to exclude evidence of cocaine that was illegally seized.

 

A. Policy Considerations in favor of Rule.

 

1. After Mapp, number of warrants went up, number of arrests went down in some locations.

1. (Freeman) If documents can be seized and held and used in evidence against a citizen accused of an offence, the 4th Amendment protection has little value.

1. No incentive for police NOT to violate the 4th amendment.

 

A. Policy Considerations against the Rule:

1. (Cahan) ‘no convincing evidence that the exclusionary rule actually tends to prevent unreasonable searches and seizures.

1. (Cahan) The only defendants who benefit by the exclusionary rule are those criminals who could not be convicted without the illegally obtained evidence.

1. A number of studies estimated that the government loses some felony, drug and weapons arrests because of concerns about exclusion of evidence obtained from an illegal search and seizure.

 

I. Exceptions to the Exclusionary Rule

 

1. Good Faith Exception:

 

Majority Rule/Good Faith Exception: (Leon) 4th Amendment does not mandate suppression of illegally seized evidence obtained pursuant to a constitutionally defective warrant so long as officer acted in good faith relian ce upon the warrant issued by neutral an detached magistrate. **(Leon) Objectively Reasonableness Standard. What is good faith=what is not bad faith. Bad faith is when the officer (1) lies or is (2) reckless – like not corroboratin g evidence.

o About 25 states have explicitly adopted Leon under state constitution.

o ‘Good faith reliance on (i) case law, (ii) a facially valid statute or ordinance or (iii) a computer report containing errors not made by police.’

 

A. POLICY: for Good Faith Exception:

 

‘Exclusion will act as a deterrent to violations of the constitution, because police will have no motive to conduct an illegal search’ if they know the evidence will not be used. (State v. Carter)

Fairness- ‘the integrity of the judicial system requires that the courts not be made party to lawless invasions of constitutional rights of citizens by permitting unhindered governmental use of the fruits of such evidence.

(Terry v. Ohio)’

B. POLICY for Rejecting Good Faith Exception:

Minority Rule: ** (Commonwealth v. Louis Edmunds – Penn.) [No time frame.] ‘To adopt good faith exception to the exclusionary rule would be to emasculate those clear safeguards which have been carefully developed under state constit ution over the past 200 years.’ Exclusionary Rule, as it stood, served to bolster the two aims of the Penn. Constitution: (i) safeguarding of privacy and (ii) the fundamental requirement that warrants be issued only upon probable cause.

Ct. viewed exclusionary rule as a constitutional mandate.

o About 15 states have decided not to adopt the exclusionary rule, like Edmunds did.

 

 

There is no objective good faith when:

a. **the officer lied to or misled the magistrate,

a. the magistrate abandons the judicial role;

a. **the affidavit is so lacking in indicia of probable cause that it would be ‘entirely unreasonable’ for a well-trained police officer to believe that probable cause existed; and

a. the warrant is defective on its face.

a. Unwavering insistence that probable cause exist before a warrant is issued.

a. Unwavering premise of Leon is still open to debate. The "costs" to society are far from clear.

a. Because officers now have totality of circumstances standard to adopting Probable Cause (Gates), there is far less reason to adopt the Good Faith exception.

a. Danger that magistrate may serve as a "rubber stamp" or police engage in "Magistrate Shopping" because magistrate and policy have historically worked together.

 

A. C. Good faith reliance on rules or statutes:

Rule: (Illinois v. Krull –US) the Ct. extended the good faith exception of Leon to include searches by officers who relied in good faith during a search or seizure on a statute later declared to be unconstitutional.

D. Good Faith Reliance on Others:

Rule: (Arizona v. Evans –US) Ct. allowed a good faith exception to the exclusionary rule when an officer relied on an inaccurate record showing an outstanding arrest warrant for the person he had stopped.

E. Unwarranted Good Faith:

a. F. Applicable proceedings:

 

o Evidence excluded in criminal cases.

o Exclusionary rule used in quasi-criminal proceedings before judges, administrative proceedings eg. To forfeit property (Commonwealth v. One 1985 Ford Thunderbird Automobile-Mass)

o Can be used during impeachment at a criminal trial (United States v. Haven – US)

 

Does Not Apply To:

o Does not apply in civil deportation cases –(INS v. Lopez-Mendoza –US)

o Does not apply to grand jury (or administrative) proceedings – (United States v. Calandra –US)

 

 

 

2. Inevitable Discovery and Independent Source:

 

Difference between Inevitable Discovery and Independent Source:

‘Independent Source is based on an untainted source that actually did lead police to evidence in question.’

A. Inevitable Discovery Exception (to exclusionary Rule):

o Limitations on the fruit of the poisonous tree doctrine.

o Amounts to conclusion that the illegal activity of the government did not ‘cause’ the government to obtain new evidence of a criminal violation.

 

Majority Rule: ** (Nix v. Williams –US) Yes, exception applies. ‘If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means…then the deter rence rationale has so little bases that the evidence should be received.’

[level of certainty- inevitable/ standard of proof preponderance of the evidence]

Ct. also looked at close relationship between:

a. the inevitable discovery rule,

a. the independent source doctrine, and

a. the harmless error rule

** Harmless error Rule:

State Rule: ** (State v. Daniel Garner – NC) Adopted inevitable discovery doctrine as ‘a logical and meaningful extension’ of its state law.

I. Possible Limits on Inevitable Discovery Doctrine:

(State v. Ault –Ariz) inevitable discovery doctrine does not apply to illegal search or seizure of items in a home.

(Commonwealth v. Benoit-Mass) Refused to apply inevitable discovery exception to unwarranted search, even though warrant could have been obtained.

(Garcia v. State – Tex.) Refused to create inevitable discovery exception.

 

 

II. B. Independent Source:

Majority Rule: **(Murray v. United States – US) Yes, exception applies. The basis for a proper warranted search was ‘independent’ of anything the police learned during the improper search.

Attenuation:

‘Even when there is a causal linkage between an improper search or seizure and some evidence obtained later, the evidence can still be admitted if the link is sufficiently attenuated’ /proximate cause analogy.

3. Standing

This limitation applies when the government improperly intrudes on a reasonable privacy expectation of one person, and finds there is some evidence implicating a second person in a crime.

Can that second person ever challenge the unreasonable intrusion?

Majority Rule: ** (Rakas v. Illinois –US) [overruled Jones ‘legitimately on the premises’ Rule-automatic standing] One step analysis of 4th Amendment cases – Whether D had a legitimate expectation of privacy< /I> in the things seized or premises searched, which was reasonably violated by the search? If so, D has standing.

Rule ( legitimate expectation of privacy): (United States v. Salvucci –US) A defendant may establish a ‘legitimate’ expectation of privacy in some premises searched without necessarily admitting ownership of contraband.

Rules for standing/Minority State Rule: **(State v. Gary Wood –Vt) used older ‘legitimately on the premises’/automatic standing Test from Jones: D challenging an illegal search or seizure must demonstrate a "proprietary, possessory, or participatory interest" in the premises searched or the property seized.

Possessory Interest analyzed: (Rawlings v. Kentucky –US) ‘actual possession of the seized items must be evaluated like any other basis of a 4th Amendment claim, i.e., it will be relevant only if it confers a legitimate expectatio n of privacy with respect to the item and the search.’

III. For Searches of Residential and Business Premises:

a. A person living full-time in a house has standing to challenge a search of any common area of the house.

a. Compare/analogize to business residence.

 

I. Target Standing:

 

Federal Rule: (United States v. Paynor –US) The Supreme Court applied its usual rules of standing.

State Rule: (Waring v. State –Alaska) " A ‘target’ of a search may have standing in response to a purposefully illegal search, even if the target had no legitimate expectation of privacy or any other interest in the pre mises that were searched."

II. Overnight Guest:

**(Minnesota v. Olson –US) Guest may have standing, although his ‘mere overnight presence at the search scene’ will not suffice by itself [see Rakas three elements]

Policy: "Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable to society."

VS.

(Rawlings v. Kentucky – US) Ct denied standing in such a setting.

A. Third Party Standing: (Alderman)

Exception to automatic application of Exclusionary Rule:

I. Harmless Error Rule:

‘If illegal evidence is admitted, a resulting conviction should be overturned unless the govt. can show beyond reasonable doubt that the error was harmless.’

 

 

 

 

 

 

 

 

 

INTERROGATIONS / CONFESSIONS

A Defendant’s confession implicates:

(a) 4th Amendment right against unreasonable searches and seizure/invasion of privacy

a. 5th amendment right against self/compelled incrimination – requires a defendant to be TOLD about his right to counsel and to remain silent. Miranda.

a. 6th amendment requires counsel to BE present, (speedy trial, public trial etc)

a. 14th amendment due process right – voluntariness.

 

A. Voluntariness of Confession:

 

14th Amendment:

**(Ed Brown v. Mississippi –U.S.) A state cannot secure a conviction via a pretense trial, using perjured testimony, and violating D’s right to liberty, life and due process.

(Confessions were false and had been procured by physical torture.)

1. Physical Deprivations:

Majority Rule – (Payne v. Arkansas) Up to a point, interrogators can limit the sleep or food available to suspect. Payne held that where D was given two sandwiches during a 40 hour detention and interrogation, confession was coerced.

A. Length of Interrogations:

No clear time limit that will create an involuntary confession under ‘totality of the circumstances’ test. (Ashcroft v. Tennessee-U.S.) Confession held to be involuntary when it went on for 36 hours continuously.

Past three or four hours may be more risky.

2.Promises and Threats:

**(State v. Charles Strain – Utah) Fifth & Fourteenth Amendments. Determination of voluntariness of confessions is totality of the circumstances (I) characterisitcs of accused and (ii) details of the interrogation. In this case, police of fered D a promise as his personal guarantee.

(People v. United States – Mich) ‘A confession caused by a promise of leniency is involuntary and inadmissible.’

Federal Rule/ Minority: Rejected as too rigid. First rule. Bram v. United States – 1897 – US) ‘Any promise or threat, however slight, renders a confession involuntary and inadmissible.’ This rule is not interpreted literally by states .

(Lynumm v. Illinois – US) ‘Some promises or threats, standing alone, are enough to render a confession involuntary. EG: Promises to reduce or decline to file charges, or any threat to file more serious charges, or a promise to seek more or le ss serious punishment for the crime.

Categories of Confessions: p. 13 Ch. 8

3. Police Lies:

 

Majority Rules:*** (State v. John Kelekolio –Haw. 1993) Two tests:

(A) extrinsic falsehoods which are of a type (i) reasonably likely to procure an untrue statement or to influence an accused to make a confession regarded as guilt will be regarded as coercive per se if (ii) they are the cause of D’s confession.

 

Egs: * divine salvation upon confession, * mental health treatment in exchange for confession, * more favorable treatment for confession, * misrepresentations of legal principles, * D’s statement can’t be used against him, * misrepresentations by poli ce/close friend of D…

B. Intrinsic Falsehoods – look at Totality of the Circumstances:

Egs: * physical evidence linking D to scene, * D’s vehicle at crime scene, * discovery of murder weapon, * claim that murder victim is alive, * presence of suspect’s fingerprints on getaway car or at crime scene, * positive id of D by reliable witnes ses, and * discovery of a nonexistent witness.

B. Miranda Warnings:

 

(Massiah v. United States – US) Sixth Amendment. Under 6th Amendment right to counsel Ds in some interrogations had the right to have an attorney present.

 

**(Escobedo v. Illinois – US 1964) Sixth Amendment Right to counsel during custodial interrogations before indictment. Pg. 21, ch. 8 for factors which constitute a custodial interrogation.

 

**(Miranda v. Arizona –US) FIFTH Amendment: ‘Prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

o A defendant may waive his rights, providing the waiver is made voluntarily, knowingly, and intelligently.

o A defendant may retract waiver and re-assert his 5th amendment rights at any time.

o Definition of custodial interrogation – Miranda- ‘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.’

 

1. Triggering Miranda Warnings:

 

There as two requirements that trigger a need for warnings: custody and interrogation – must be examined independently.

a. Custody:

 

Objective Test: (Berkemer v. McCarty – US) Majority Rule: ‘Would a reasonable person in the suspect’s position believe that he or she has been constrained in a manner akin to an arrest."

State Rule: (State v. Burt James Smith – Iowa) Totality of the Circumstances Test: includes (1) language used to summon the individual, (2) the purpose,)place and manner of the interrogation, (3) the extent to which the defendant is confronted with evidence of his guilt and (4) whether the defendant is free to leave the place of questioning.

ct. held there was no custody. In absence of actual arrest, did authorities say or do something which indicates to D that they would not have allowed the suspect to depart.

(Berkemer v. McCarty- US) An investigative stop for a traffic offense does not amount to custody under Miranda.

a. Interrogation:

 

**(Rhode Island v, Thomas Innis – US) From Miranda – term ‘interrogation’ refers not only to (1) express questioning, but (2) also any words or actions on the part of the police – "functional eqvivalent" (other th an those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. – Based upon the perceptions of the police, rather than the intent of the police.

(Orozco v.Texas-US) Interrogation does not have to take place at a police station to be custodial. In this case, four officers woke suspect in bedroom at 4am and questioned him.

I. Exceptions:

o Public Safety motivation –

**( New York v. Quarles – US) Even though the officer had conducted a custodial interrogation without giving Miranda warnings, the suspect’s confession was not obtained contrary to the constitution. Balancing Test: ‘the need for answers to question in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.

2. Form of Warnings:

 

Additional Warning: - Presence of Counsel: Majority /State Rule: (State v. John Reed-NJ) Reasonable Person Test: ‘When, to the knowledge of the police, such an attorney is present or available, and the attor ney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue. See also (Haliburton v. State –Fla – failure of police to inform D that his at torney was at the stationhouse.)

 

Musing about Counsel: (Midkiff v. Commonwealth –Va) General comments about needing an attorney is not enough to qualify as an invocation of right to counsel.

 

Minority/Federal Rule: ** (Moran v. Burbine – US) Police has no obligation to tell a suspect about an available attorney if the suspect has already waived the Miranda rights.

3. Waiver:

 

Federal Rule: (North Carolina v. Butler –US) ‘An explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or to the right to counsel guaranteed by the Miranda cas e.’

State Rule: (Commonwealth v. Bussey –Pa) Requires and explicit waiver.

Silence as Waiver: (Tague v. Louisiana – US) Confession excluded where police read Miranda rights to suspect and did not mention waiver to rights./ Police could not recall whether he asked suspect if she understood rights .

4. Invoking of Rights After Waiving:

 

I. Silence:

(State v. Jason Ryan Williams –Minn.) Ct. follows Federal Rule./Davis. Invocation of right to be silent must be unambiguous or unequivocal in order to be enough to implicate ‘Miranda protections.’

A. Counsel/Ambiguous Assertion:

Majority Rule: (State v. Robinson –Minn) When accused utters a statement that could be an invocation of right to counsel, all further questioning is to stop, except for narrow/clarifying questions .

Minority/Federal Rule: (Davis v. United States –US) Officer not required to ask clarifying questions when an accused ambiguously requests counsel. ‘If accused’s statement is not an unambiguous or unequivocal request for counsel, the officer’s have no obligation to stop questioning him.’

Ambiguous Waiver:

Most Protective Rule: (North Carolina v. Butler –US) ‘An explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or to the right to counsel guaranteed by the Mir anda case.’

Waiver after invocation:

Majority/Federal Rule: Right to Counsel: (Oregon v. Bradshaw-US) Two part Test: (1) Whether D, rather than police, initiated conversation in a manner that showed a ‘willingness and a desire for a generalized discussio n about the investigation’, and if so (2) whether D knowingly and intelligently waived his rights –under totality of the cicumstances.

State Rule: Right to Counsel: (State v. Olivera – Ill) Adds third part to Bradshaw test. (1) (a). Police must first remind D of right to counsel during interrogation, before answering D’s initiation.

5. Subsequent Interrogation:

 

I. Right to Counsel:

Majority/Federal Rule: (Oregon v. Bradshaw-US) Two part Test: (1) Whether D, rather than police, initiated conversation in a manner that showed a ‘willingness and a desire for a generalized discussion about the investigation’, and if so (2) whether D knowingly and intelligently waived his rights –under totality of the cicumstances.

II. Right to Silence:

Majority/Federal Rule: (Michigan v. Mosley –US) Police subsequent interrogation ok, after two hours, if D waived right to silence at the subsequent interrogation.

State Rule: (State v. Kevin Stanley –Conn) Once right to silence is invoked, (1) a subsequent interrogation may be ok if sufficient time has passed, and (2) D is reread his Miranda rights and (3) waives them. In this case, ct. held tha t the time space of five hours, before police rewarned D, then interrogated him again.

 

6. Capacity to Waive/’Knowingly & Intelligently’:

 

*** Very Case Specific. A ct. may use a variety of factors: (a) D’s prior experience with criminal justice system, (b) intelligence and education, (c) mental illness, (d) vocabulary and literacy, (e) state of intoxication, (f) emotional st ate. Ct. may also look at police conduct ie: threats, promises, lies.

Federal Rule: (Lego v. Twomey – US) Govt must prove that a confession was voluntary/ that D knowingly and intelligently waived rights by a perponderance of the evidence.

State Rule: (State v. Donald Cleary –Vt.) Waiver analysis –‘Totality of the Circumstances’ approach- (1) age, (2) experience, (3) education, (4) background, (5) intelligence…’to determine whether D has capacity to understand the warning s given him, the nature of his Fifth Amendment rights, and the consequence of waiving those rights.’ In this case, D had been through criminal system before.

(Kelley v. State-W.Va) mentally retarded suspect, 6th grade education, read at 3rd grade level, IQ of 50, left school at 13 when pregnant- confession suppressed.

A. Juveniles:

Majority/Federal Rule: Just one factor in ‘totality of circumstances’- (Fare v. Michael C-US) Other factors may overpower youth in a particular case.

Minority/State Rule: (In re KWB-Mo) Requires juvenile consult with ‘interested adult’ before she/he can waive Miranda Rights.

 

C.Cures and Remedies for Miranda violations:

B. Out of Court Statements:/Inevitable Discovery:

Majority/Federal Rule: ** (Oregon v. Elstad - US) Any statement made during an unwarned interrogation must not come into evidence, later statements of the suspect of the suspect might still be admissible - even though the statements qual ify as the fruit of the poisonous tree.

Minority Rule: (State v. Hosie van Smith-Tenn.) [Ct. held in this case that evidence/cocaine was admissible as a result of valid, consensual search. ]

For confession - Totality of the Circumstances test: to determine whether D made a free and informed choice, and voluntarily cinfessed involvement in crime. Factors include:

• use of coercive tactics, and causal connection between illegal conduct and subsequent confession;

• temporal proximity of prior and subsequent confessions;

• circumstances after arrest up to time of subsequent confession, including but not limited to - length of detention/ deprivation of food/rest/ and bathroom facilities.

• coerciveness of the atmosphere including -where the questioning took place, identity of the interrogators, form of the questions, repeated or prolonged nature of the questioning;

• presence of intervening factors eg - consultations with counsel or family members;

• psychological effect of having already confessed, and whether D was advised that first confession may not be able to be used at trial;

• whether D initiated conversation that led to subsequent confession;

• D’s sobriety, education, intelligence level, and experience with the law

 

...as these factors relate to D’s ability to understand the administered Miranda rights.

Places burden on govt. to overcome presumption of compulsion for subsequent confessions.

Tainted Leads to Witnesses and Physical Evidence:

Federal Rule: (Michigan v. Tucker- US) Allowed use of prosecution witnesses whose names had been obtained during an interogation where proper Miranda warnings had not been given.

State Rule: (DeShields v. State-Del) Proceed on assumption that any evidentiary ‘fruit’ from a confession obtained in violation of Miranda must be excluded, unless one of the three traditional exceptions to the "fruits" rule i s present. (1) Inevitable discovery,(2) Independent Source, (3) Attenuation/Proximate Cause.

 

Alternatives To Miranda

 

 

IDENTIFICATIONS

Risks of Mistaken Identification:

 

Two groups of variables during acquisition stage that affect witness’s ability to report accurately:

a. event factors- amount of time witness had to observe incident/ type of detail/ duration of event/violent vs. nonviolent events, and

b. witness factors –retaining information in the memory/people forget very quickly after an event, but the forgetting becomes more and more gradual as time passes/ guessing that is graduated over time to become a confident observation.

 

In-Person Identification Procedures:

A. Presence of counsel as a limitation:

 

Pretrial Lineup:

Majority/Federal Rule: (Kirby v. Illinois-1972) Defendants do not have a right to presence of counsel at a lineup that occurred prior to the initiation of formal prosecutorial proceedings.

 

Limited Wade-Gilbert Rule to apply only to lineups occurring ‘at or after the initiation of adversary judicial criminal proceedings.

Time when adversarial proceeding start: Moore v. Illinois (US) Federal Constitution. This time begins as early as the pre-indictment ‘preliminary hearing’[ in which a magistrate determines if there is probable cause to bind the de fendant over to the grand jury.]

 

State Rule [same as Federal] (People v. Hawkins) No 6th or 14th amendment right to counsel at an investigatory line-up – which occurred before ‘adversary criminal proceedings had commenced.

 

OLD Federal Rule: (United States v. Wade -1967) A person accused of a crime by Federal or State officials is entitled under 6th and 14 amendments to have his attorney present at pretrial lineups.

** No State has applied the right to counsel to so-called ‘field confrontations’.

Exclusion on Due Process Grounds:

I. Suggestive ID:

Majority/Federal Rule: (Neil v. Biggers –US –1972)

 

Totality of the Circumstances: To determine whether an identification is reliable include:

a. the opportunity to view the criminal at the time of the crime;

b. the witness’ degree of attention,

c. the accuracy of the witness’ prior description of the criminal;

d. the level of certainty demonstrated by the witness at the confrontation; and

e. the length of time between the crime and confrontation. A lineup may be reliable and admitted into evidence because of its reliability, despite any suggestiveness in the identification procedure.

State Rule – variation of federal Rule with different factors. (State v. Ramirez-Utah) – ‘field id. Ct. applied Biggers-federal and State v. Long –state. Ct. considered suggestibility. (1) opportunity of witness to view actor during event; (2) witness’ degree of attention to actor at the time of event; (3) witness’ capacity to observe event; (4) whether witness’ identifaction was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. [This includes the race factor.]

**Minority/State Rule: more protective than fed/majority rule. (Commonwealth v. Johnson –NY) Per se exclusion rule. Excludes from evidence any identification produced by unduly suggestive process.

Detention for Identification:

Nebraska statute – authorizes a judge to order a person to submit to a lineup or some other identification procedure (like lineups or fingerprinting).

(State v. Hall – NJ). No PC needed to compel participation in a lineup. Might be acceptable for police (1) to detain a suspect in the field for fingerprinting based only on reasonable suspicion, and (2) to bring a suspect to the st ation for fingerprinting, based on a judicial order issued on the basis of probable cause.

Photographs and recordings:

I. Before or After Adversarial Proceedings:

Majority/Federal Rule: (United States v. Ash – US) No 6th amendment guarantee of right to counsel at photographic displays conducted by govt. for the purpose of allowing a witness to attempt an identification of the offender. – BEFORE OR AFTER THE START OF ADVERSARIAL PROCEEDINGS. Ct. reasoned that a photo display is unlike a lineup, because it does not involve a ‘trail-like confrontation’ between the defendant and the witnesses.

State Rule: (People v. Lee – Mich.)/ (***People v. Albin Kurylczyk) No requirement of counsel to pre-custody, pre-questioning, mere suspicion phase.’

II. Once Defendant is in Custody:

Minority/State Rule:(People v. Anderson – Mich.) Yes, requirement for counsel attaches. P. 37 CH.9

• Michigan adopted minority position, and require police to use photo ids. Only as a last resort.

*New York photo id procedures p. 40, Ch. 9. (1) display of single photo of suspect to a witness prohibited. (2) Mug File – ok, when police have no idea who suspect is. (3) Photo arrays – used where police have a suspect in mind, but not in custody / use 6 photos/ similar appearance/ photo similar, like all black and white or all color, sam background etc. (4) keep written record of procedures, (5) If there are mutliple witness, keep them separated/ police must n’t give witnesses assistance in picki ng out photos.

Remedies for improper identification procedures:

I. Admissibility of Expert Testimony on Eyewitness Memory:

Minority - Old/State Rule: (People v. McDonald-Calif) Test: Testimony of expert witness limited to such subjects ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’

Majority/ State Rule I: (State v. Gaines – Kan. ) Instructs trial cts. that expert testimony is not admissible because it invades the province of the jury.

Majority/State Rule II: (Ex Parte Williams – Ala.) Trail ct. has discretion to admit or exclude the expert testimony.

Minority/ State Rule: (State v. Chapple – Ariz) Overturned a trial cts. decision to exclude expert testimony as an abuse of discretion.

** Govt. does NOT have to pay for an expert for a defendant. (Espinosa v. State – FLA.)

 

 

DEFENSE COUNSEL – CH. 11 – SIXTH AMENDMENT

When counsel will be provided:

[***Note: Due Process clause requires counsel in post-conviction proceedings. The equal protection clause requires the state to provide counsel to all participants if counsel is available to some. The Fifth Amendment requires a defendant be TOL D about the right to have counsel present.]

1. Types of Charges:

 

Old federal Rule: (Gideon v. Wainwright – 1963) Accused has fundamental right to the aid of counsel in a criminal prosecution.

Majority/State Rule: In Re Advisory Opinion to the Governor (Appointed Counsel) Providing counsel is constitutionally required for any defendant (a) charged with a felony; and (b) charged with a misdemeanor that results in actual imp risonment, even if less than six months.

Minority Federal Rule: Scott v. Illinois Counsel required to be appointed only for misdemeanor cases resulting in ‘actual imprisonment.’

Minorty State Rule: follows Scott. Commonwealth v. Thomas Adopted ‘actual imprisonment’ rule.

General: [(Massiah v. United States – US) Sixth Amendment. Under 6th Amendment right to counsel Ds in some interrogations had the right to have an attorney present.

Old: (Escobedo v. Illinois – US 1964) Sixth Amendment Right to counsel during custodial interrogations before indictment. Pg. 21, ch. 8 for factors which constitute a custodial interrogation].

I. Statutory Right to Counsel in minor cases:

***** Fla. Rule Criminal Procedure 3.111 P. 9. CH.11. Person entitled to appointment of counsel when (a) person is formally charged with an offense, or (b) as soon as feasible after custodial restraint, or (c) at the first appearan ce before a committing magistrate, whichever occurs earliest.

Provides most protection:

Vt. Stat. Ann. P. 9 Ch. 11 ‘A needy person who is being (a) detained by a law enforcement officer without charge or judicial process, or (b) who is charged with having committed or is being detained under a conviction of a serious crime, is entitl ed: to be represented by an attorney to the same extent as a person having his own counsel…"

Tex. Code Crim. Proc. Art 26.04 P. 10 Ch. 11 – adds to list of crimes for which the state must provide counsel for indigent defendants. ‘If Ct. determines that the interests of justice require representation of a defendan t in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him.

Determination of Indigency: Conn. Gen. State. S 51-297(f) ‘The trial court typically determines, in a hearing soon after charges are filed, whether or not the defendant qualifies as an indigent to receive state-provided counsel.’

Iowa Code S 815.9 – Defines indigency by reference to poverty income guidelines of federal government.

Distribution of Offenses:

‘If felonies rest at the top of the pyramid of criminal charges, the least serious misdeamors are the charges at the broad bottom of the pyramid; in most systems, they are by far the most numerous charges.’ P. 12 Ch. 11

Predecessor to Gideon:

P. 12, Ch. 11 Powell v. Alabama

Right to Counsel in FEDERAL COURT:

As a result of selective incorporation:

Federal Rule: Johnson v. Zerbst – US Supreme Ct. declared ‘that the Sixth Amendment required to government to appoint counsel for all criminal defendants in federal court.

Later Crimes – Actaul Imprisonment:

Federal Rule: Nichols v. State – US ‘Supreme Ct. decided that a sentencing judge may consider a defendant’s previous UNCOUNSELED misdeamenor conviction in sentencing him to a subsequent offense.

Appointed Experts/Psychiatrists:

Federal Rule: Ake v. Oklahoma –US ‘Supreme Court held that the due process and equal protion clauses (but NOT the Sixth Amendment) require a state to provide access to a psychiatrist to an indigent defendant, if the def endant makes a preliminary showing that his or her sanity will be a significant issue at trial.

 

 

 

Point in hearing/police technique [Proceedings] that Right to Counsel Attaches:

I. Critical Stage BEFORE Trial:

Preliminary Requirement: The federal constitution right to counsel appliesonly (1) after the initiation of ‘adversarial judicial proceedings’, and only (2)during a ‘critcial stage’ of those criminal proceedings.

Majority/ Federal Rule: (Coleman v. Alabama – US). Right to counsel extends to preliminary hearings where the government must demonstrate a prima facie case against the defendant [‘because defense counsel at such a heasring can obtain d iscovery of the state’s evidence, make a record for later impeachment of state witnesses at trial, preserve defense witness testimony etc.]

Note/Federal: Gerstein v. Pugh – US federal constitutional right DOES NOT begin with arrest, or even with a post-arrest probale cause hearing.

Minority/State Rule: Page v. State – Miss. Right to counsel attaches before arraignment, when proceedings reach ‘accusatory’ stage

II. State [Statutory] Rules:

Ala. Rule Crim. Proc. 6.1(a) – ‘..right to be represented shall include the right to consult in private with an attorney or the attorney’s agent, as soon as feasible after a defendant is taken into custody ..’

Mo. S.Ct. Rules 31.01, 31.02 ‘Every person arrested and held in custody/ by any peace officer/ in any jail, police station or any other place,/ upon or without a warrant…, shall promptly, upon request, be permitted to consult with counsel or other persons on his behalf..and…use a telephone."

Post Conviction Criminal Action:

Mont. Code Ann. SS 46-8-103, 104 – ‘Any court of record may assign counsel to defend any defendant, petitioner, or appellant in any postconviction criminal action or proceeding if he desires counsel and is unable to employ counsel.’

III. Right to Counsel After Trial:

I. At Sentencing:

Majority federal and State Rule: (Mempa v. Rhay –US) (State v. Alspach – Iowa) Sixth Amendment and its state constitutional analogs apply to post-conviction hearings to determine the proper sentence.

Sentencing for Probation: (Gagnon v. Scarpelli –US) Counsel not required if the trial court sentences a defendant to probation and state later attempts to convince judge to revokde the defendant’s probation (and send the defendant to pr ison) because he or she has violated the conditions of probation.

On Appeal: (Douglas v. California – US) Sixth Amendment right to counsel does not apply to criminal appeals. [B/c criminal prosecution ends with a conviction and sentence, and if D appeals the case, the government is defending the judg ment rather than ‘prosecuting the case.’

Intoxilyzed Test: p. 26, Ch. 11

Psychiatric examinations: p. 27, Ch. 11, critical stage – yes, at a capital sentencing proceeding/ violated D’s Fifth Amendment right to counsel – (Estelle v. Williams – US)

DUI examinations: p. 28, Ch. 11

 

Adequacy of Counsel:

Majority/Federal Rule: - Current Standard: (Strickland v. Washington – US Two part Test: (1) counsel’s performance must be ‘reasonably effective’ and cannot fall below an ‘objective standard’ or reasonableness –as measured by profes sional norms, and (2) defendant must show a ‘reasonable probability’ that the outcome in the proceedings changed because of the attorney’s deficient performance. Ct. must consider totality of the evidence.

Persuasiveness of ineffective counsel claims: p. 60 Ch. 11

Ineffective assistance in capital cases: p. 60 Ch. 11

Effective assistance from impaired attorneys: p. 60 Ch. 11

Public and Private incompetence: p. 61 Ch. 11

Defense Function Standards: p. 61 Ch. 11 ‘Prompt action to protect the accused / duty to inverstigate circumstances of the case / Duty to explore disposition without trial / challenges to effectiveness of a previous defense counsel.

 

 

 

 

 

 

 

 

 

THE IMPACT OF TECHNOLOGY AND POLITICS

Technology:

I. Dogs: - Fourth Amendment:

Majority/Federal Rule: (United States v. Place) S. Ct. held that dog sniffs are not searches, and not subject to constraints of Fourth Amendment. Involved sniff of a suspect’s luggage at the airport. PUBLIC PLACE.

Minority/State Rule: (People v. Dunn – NY) Canine sniff is a ‘search’ under the state constitution. Require police to show Reasonable Suspicion to carry out a canine sniff search. This holding is APPLIED to cases where the dog is brought INTO A PRIVATE AREA, or to the edge of such an area (like up to the front door of a home).

I. Flashlights:

State Rule: (State v. Tarantino – NC) Search when officer shines flashlight through cracks in rear wall of storage shed.

II. Binoculars and Telescopes:

Federal Rule: (Dow Chemical Co. v. United States –US) ‘No search when govt. uses $22,000.00 aerial mapping camera during overflight of plant suspected of environmental crimes.

Nightscopes: State Rule: (Newberry v. State – Fla) No search.

Metal Detectors: Gibson v. State – Tex.) Metal detector at courthouse is reasonable search.

III. X-Ray machines: p. 9. Ch. 7

IV. Infra-Red Searches: p. 9, ch. 7

Plain View and Sense enhancements:

Majority/State Rule: (State v. Wacker – Or) Applied Katz analysis [device did not intrude on a ‘reasonable expectation of privacy] and upheld observation using light-enhancing ‘starscope’ of occupants in car parked outside tavern.’

Beepers:

Federal Rule: (United States v. Knotts –US) Ct. held that no search took place when police attached a beeper to a drum of cloroform and then followed movements of car when they lost visual contact.’ – Ct. held that ‘a person traveling in a n automobile has no reasonable expectation of privacy in his movements from one place to another.’

(United States v. Caro) - limited use of beepers. Search TOOK place when agents used beepers to track movements INSIDE A HOUSE.

Bugs on Agents:

Majority/ State Rule: (State v. Reeves- La) Defendant exhibited no expectation to privacy. Was a victim of CONSENSUAL electronic surveillance.

Same as Federal Rule: (United States v. White – US) Conversation betwwen an agent and a suspect does not become a ‘search’ that is subject to constitutional limiations, when agent uses a device to transmit or record the conversation.

Bugging Defendants after indictment:

Federal Rule: (United States v. Henry – US) Supreme Court found a violation of the Sixth Amendment right to counsel when govt. ‘deliberately elicited’ statements from a defendant to he co-defendant AFTER indictment.

Supreme Court limited its holding in (Kuhlmann v. Wilson – US), emphasizing the element of intentional government action.

Information gained before indictment:

(Hoffa v. United States –US) no constitutional violation when govt. obtains information from informant who hears conversations during defense effort at earlier criminal trial.

Wiretapping:

(Olmstead v. United States – 1928 – US) No search.OLD VIEW.

(Katz. V. United States – US - 1967) Search. Public place/ phone booth. Defendant closed phone booth door; manifested signs of expectation to privacy – subjective and objective.

Statutory wiretapping procedures:

Berger v. New York – US - rejected NY’s wiretapping statute. P. 31. CH. 7

Requests for wiretaps:

p. 33 Ch. 7 Showing of Probable Cause - Ct. issuing a wiretap order [under the typical statute] must be convinced that probable cause exists as to several facts: (1) an individual has committed, is committing, or is about to commit a crime designated in the statute, (2) communications about that offense will be obtained through an interception, and (3) the particular facility to be monitored will be used in connection with the offense.

Additionally, govt. may be required to show that other investigative techniques have proved insufficient.

Description of Roving Wiretaps: p. 38 Ch. 7

Description of Targeted Individuals: 18 USC S 2518 (1)(b)(iv) Application must specify the identity of the person whose communications are to be intercepted, if known..

Authority to Apply: Federal wiretapping statute requires a senior Justice Dept. official, or a US attorney, to approve an application for an interception order.

Minimization:

Majority/Federal Rule: (Scott v. United States) S. Ct. held that monitoring and recording of all calls received on a tapped phone over a 30 day period was reasonable under the FOURTH Amendment . Factors included: (a) extent of criminal a ctivity under investigation, (b) extent to which phone was being used for illegal purposes, (c) frequent use of ambiguous language in conversations justified full monitoring of every call.

Minority/State Rule: (State v. Catania – NJ) Rejected Scott. Insist on good faith of officers as being relevant in determining whether they complied with the minimization requirement.

Protected Communications:

18 UCS S 2511 . p. 42 Ch. 7

N.J. Stat. S 2A:156A-4

Level of Justification:

(State v. John Worthy – NJ) Reasonable suspicion. Or else Fourth Ama=endment protections come into play.

Consensual Intercepts: Statues p. 48-49

The exclusion Remedy:

** State and federal wiretapping statutes almost uniformly contain their own exclusionary rule remedy.

Federal Interpretion: (United States v. Giordano –US) p. 51 Ch. 7

 

Cordless Phones: (State v. Mozo – p. 53)

Searching electronic records: p. 53 Ch. 7

Electronic records in the hands of third parties: p. 54 Ch. 7 USC provisions

Pen Registers:

Probable cause needed.

Majority/State Rule: (Richardson v. State – Tex) Use of a pen register is a ‘search’ within the meaning of the constitution.

Minority/Federal Rule: (Smith v. Maryland –US) Telephone users cannot have an actual expectation that the numbers they dial will remain private. Held: the installation and use of a pen register is not a search.

Statement of Louis J. Freeh, FBI Director. P. 61 Ch. 7

US Dept. of the Treasury, p. 65 Ch. 7

Analysis of documents alre4ady in govt. hands. P. 66 Ch. 7

Use of existing documents as an issue distinct from access; p. 66 Ch. 7

Private privacy: [Not Govt.] p. 67 Ch. 7

Privacy in Cyberspace – e-mail article p. 68 Ch .7

Level of privacy online users can expect – law enforcement can roam public online spaces without a warrant – not entitled to any protection.

Employers – prohibited from eavesdropping on employees’ private conversations at work, but there is NO SUCH protection with electronic mail communications.

Internet Service Porivders – p. 71 Ch 7

Third Party & Hackers – p. 72 Ch .7

Government and Law Enforcement – p. 72 Ch. 7

 

Politics:

Federal Rule: (Richards v. Wisconsin – US) Reasonable suspicion standard- no-knock felony drug investigation. Test: Police must (a) have a reasonable suspicion that (b) knocking and announcing their presence, (c) under the partic ular circumstances, (d) would be dangerous or futile, or (e) it would inhibit the effective investigation of the crime by eg. destruction of evidence.

Popular Control Over Consitutions:

Florida Constitution, Article 1 S 12 p. 81 Ch 7/ History of Florida Provision – p.82

California Consitution p. 81 Ch. 7

Victims rights and searches and seizure p. 83

Linkage of other state constitutions to federal consitution p. 83

Judicial response p. 83

 

 

 

 

 

 

 

 

 

 

 

 

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