ACJ
ACJ
SPRING 2001
Chapter 3
Arrest, Search & Seizure
Section One: THE EXCLUSIONARY RULE
• The exclusionary rule is evidence obtained in violation of the 4th amendment is ordinarily inadmissible in a criminal trial.
• Three rationales for the ER:
1. deters police misconduct because evidence gathered in violation of the 4th will be inadmissible.
2. Promotes societal trust because there is no incentive to break rules, and
3. Protects judicial integrity because court is not partner of the police.
• The ER applies to all federal prosecutions of federal criminal cases. Weeks
• The ER applies to the states because the 4th applies to the sates through the 14th amendment Due Process.
• The Due Process Clause incorporates certain fundamental rights to the states that are sufficiently fundamental
• A right is sufficiently fundamental if the right is implicit in the concept of ordered liberty. Mapp
• The Sup Ct in Mapp held that rights protected by the 4th are sufficiently fundamental and apply to states in the same way they apply to the fed gov’t.
• Although an illegal arrest or other unreasonable seizure of the person is itself a violation of the 4th and the 14th, the MAPP exclusionary sanction comes into play only when cops have obtained evidence as a result of the unconstitutional seizure. For example: when the cops make an illegal arrest and then conduct a fruitful search which is incident to that arrest and thus dependent upon t he lawfulness of the arrest for it legality.
• If the right meets the threshold of sufficiently fundamental, then the right applies to states in the same way as it applies to the fed gov’t. Thus, here because the 4th applies, the ER rule applies in the same way
• The “Good Faith” exception to the ER is that evidence seized upon reasonable reliance on a search warrant that would otherwise be in violation of the 4th and would be inadmissible under the ER because the warrant was invalid will be admitted if the officer executing the warrant was in good faith. Good faith exception comes from Leon.
• Reasoning behind the good faith exception is that ER is a judge made doctrine whose purpose is to deter police misconduct. Change from old law that purpose was for judicial integrity.
• Probably would not make sense to have “Good Faith” exception if based in judicial integrity because then good faith of officers would not matter, but if deterrence of police misconduct was purpose then the officer’s good faith would. Also, if not judge made then they could not create exceptions.
• A warrant is issued by a magistrate who has jurisdiction over issues in a felony case, but who does not actually try felony cases.
• A warrant is issued on a finding of probable cause. Two part test:
1. item that is being searched for was used in or connected with a crime, and
2. probable cause that the item searched for is ion place being searched.
• The test whether to apply the good faith exception is an objective reasonable , not really good faith test. Also a two part test.
1. Would a reasonable well-trained officer have known that the search was illegal despite the magistrate’s authorization? LEON.
[in making this determination, all of the circumstances, including whether the warrant application had previously been rejected by a different magistrate, may be considered.]
2. Officer executes warrant properly.
• The reason that this test is objective rather than subjective is because a subjective test would promote having the officer know as little as possible.
• Circumstances where the good faith exception will not apply:
1. The officer knowingly misled the magistrate or acted in reckless disregard for the truth.
2. The ,magistrate abandons his judicial role and is no longer neutral (acts as a rubber stamp for police, and participates in magistrate shopping)
3. Officer is aware that the warrant fails to set out probable cause
4. Warrant is facially insufficient-fails to particularly state what is to be seized or searched (assuming the officer who obtains and executes the warrant is not the same person.)
• Penn …Parole v. Scott: ER does not apply to parol hearings. Does the exclusionary rule apply in a non-criminal context?
• The court set out a test, a cost benefit analysis:
Costs: 1. Very probative and reliable evidence would be excluded.
2. Parole hearings would be more adversarial because the issue of whether the 4th was violated would have to be litigated. This would make the parole hearing more time consuming, expensive, burdensome.
3. There would be costs to parolees
Benefits: 1. The cop would act as if the person was not on parole.
2. The cop that does know the person is on parole. There
is only marginal deterrence here. Even if a cop who knows that a person is on parole, the cop is attempting to seize evidence for a new prosecution.
3. The parole officer: this person is merely an advisor.
• ANALYSIS:
1. First, determine if the 4th amendment has been violated.
- If no, stop and admit.
- If yes, ER
2. Second, determine if the ER should be applied. Will police misconduct be deterred?
- If yes, do not admit.
- If no, should the good faith exception apply?
3. Third, determine if the good faith exception to the ER should be applied.
4. Fourth, none of the four circumstances where the good faith exception applies does not apply.
I. Section Two: Protected Areas and Interests
• Up until now, we have assumed that there has been a 4th amendment violation. We now look at the question as to what it means for the 4th to be violated.
• Generally, the 4th amendment protection is triggered by search and/or seizures. Thus, an officer must have a warrant before he can effectuate a legal search and/or seizure. The 4th protects people, not places, prior to KATZ there had to be an invasion into a constitutionally protected area to have a 4th amendment violation. KATZ (phone booth case)
• KATZ abandons literal reading of 4th and comes up with a test.
• A search occurs when you have an infringement upon an expected privacy that society deems reasonable.
• In KATZ, the Harlan concurrence developed a two part test to determine when there is a search:
1. SUBJECTIVE ELEMENT: Did ( have an expectation of privacy (are there locked gates, no trespass signs, etc), and
2. OBJECTIVE ELEMENT: Does society see this exception of privacy as reasonable?
• California v. Greenwood, trash searches held to be outside of the scope of the 4th protection because the court found the expectation of privacy in trash at the curb to be objectively Unreasonable. Searching trash would violate only if respondents manifested a subjective expectation of privacy. Placed bags for a 3d party. Police cannot reasonably be expected to advert their eyes from evidence of criminal activity that could have bee observed by any member of the public.
• Florida v. Riley: Helicopter at 400 feet held to be outside of the scope of the 4th because society views this as objectively reasonable. The judges ask: Does society reasonably expect people to fly over at 400 feet. Ct relied on California v. Ciraolo, a fixed wing plane flying at 1000ft observed with naked eye and it was unreasonable to expect privacy and that there was no warrant required.
• The location where the information was gathered: find this important, navigable airspace that the public flies through. But later in OLIVER, the location of the cop is not enough to carry the day.
• Bond v. US: cops enter bus and reach over passengers’ heads and squeeze bags. Cops feel a brick and Bond gives consent to search – dope. Bond argues that his 4th rights have been violated by warrantless manipulation of his bag. The gov’t argues that the cop was legally in a location that they could palpate the luggage b/c anyone on the bus could have done this. Court didn’t buy this. It is clear that he has a subjective expectation of privacy. Is it one that society is prepared to view as objectively reasonable? Because people don’t expect others to feel the bag, the court said that there was an expectation of privacy.
• Police Investigative tactics: (1) Prepping a bag, (2) sensory enhancing devices (beepers, telescopes, thermal imaging)
• Prepping a bag, after Bond, it is not so clear whether an officer can prep a bag (squeeze it so that a dog can get a better smell). Most circuit courts that have considered the prepping issue have determined that it is not a 4th violation to squeeze the bag. Based upon a KATZ test, it is okay, because you’d expect your bag to get squeezed in overhead bin.
• Police cannot use sensory enhancing devices to search an area that is curtilage without a warrant.
• However, warrantless monitoring using sensory using sensory enhancing devices such as beepers, does not violate the 4th of it only reveals info able to be obtained through visual surveillance.
• US v. Karo: typically cops obtain warrants to place beepers. Tracking the beeper after it has been withdrawn from public view. Yes, if you have a sensory enhancing device that is being used in a persons home and it permits the cops to get info about what’s inside a home or curtilage, the cops need to have a warrant before they can use that investigative device. But as in KNOTS, if you can maintain visual surveillance, you don’t need a warrant.
• US v. Taborda: cops used a telescope to get count pills on table and read label on pill bottle that had something to do with blow. Ct held that to get a warrant, you can only use info obtained through the unenhanced view of the apartment.
• Thermal Imaging: Kyllo, night thermal imaging to find hotspots of pot growing in house. The court found that there was no subjective expectation of privacy because the technology gave no intimate details. The court found intimate details very important. Most circuits allow warrantless use of thermal imaging.
• Thermal imaging and the use of dogs, US v. Tarazone-Silva: dog sniffed exterior of residence without warrant. Ct held that the areas were public and cop didn’t have to jump a fence. Ct said that anyone can approach your home and there is public access.
Curtilage versus Open Field
• First, determine if the area being searched is Curtilage.
• Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.
• Curtilage is protected by the 4th amendment, and police must get a warrant before they can search.
• Four factors to determine if an area is curtilage:
1. The proximity of the area claimed to be curtilage to the home
2. Whether the area is included within an enclosure surrounding the home, (fence)
3. The nature of the uses the area is put to, and
4. the steps taken by the resident to protect the area from observation by people passing by.
• Businesses are protected by the 4th, but they have a hard time showing that areas around enclosed buildings are curtilage because those areas do not have the intimacies associated with the sanctity of a man’s home.
• Open field, open fields may include ant unoccupied or undeveloped area outside of the curtilage. An open field is a term of art and does not need to be open, or a field. Could be a barn of your farm.
• Open fields are not protected by the 4th amendment and police can search without a warrant. OLIVER.
• If you have an open field, then the police can use sensory enhancing devices without a warrant.
• However, the sensory enhancing devices the police can use is limited to devices that are available to the public.
• The court has a very relaxed attitude as to what is available to the public. $22,000 cameras and planes are OK, but military equipment and satellites probably are not.
• Violation of tort law (trespass) or property laws by the police, is only a factor in determining what society deems to be reasonable.
• US v. White: Conversations that took place in a home were recorded by one of the parties, an informant. Ct looks to Hoffa, false friends cases, there is no reasonable expectation of privacy if you trust the wrong friend versus bugging or wire-tapping.
Section Three: Probable Cause
• A warrant can only be issued if there is probable cause.
• Magistrates make the determination of whether there is probable cause based on the affidavits of the police officer.
• The affidavit must show substantial evidence that items to be searched for are seizable: (1) that items are connected with the criminal activity and (2) that items are where the officer says they are.
• The ( can challenge the probable cause determination made by the magistrate at the suppression hearing.
• However, even if the warrant is invalid because of the lack of probable cause, the evidence will not be suppressed under the Exclusionary rule if the good faith exception applies.
• Aguilar v. Texas, developed the two pronged test: (1) basis of knowledge and (2) veracity (credibility and reliability).
• Spinelli v. US: warrant based on informant information alone, not enough. The court still needs to have information concerning the credibility and reliability of the underlying circumstances that gave rise to the informant’s knowledge. Funny thing is that this court said that totality of the circumstances is not enough under the Aguilar test, but later Gates applies that very test.
• Illinois v. Gates: letter of detailed information, cops conducted surveillance. All judges agreed that the letter alone does not constitute probable cause. The sup ct used the Aguilar test. But the court thought this test had too many problems so moved to a more rigid analysis: Totality of the Circumstances.
• To determine if probable cause exists, the court uses the totality of the circumstances test. GATES
• Court incorporated Aguilar/Spinelli factors, the new test is: the magistrate must make a common sense judgment based on all of the information provided to him. The magistrate has to reach the decision that there is a fair probability that the evidence will be found at that particular place.
• Magistrates are to make determinations based on common sense analysis, has to be a fair probability that evidence will be found in the area to be searched.
• What is fair probability? This is not a more likely than not test. Judges think that 44.25% is a fair probability. But it is more of a free flowing analysis.
• In Gates, the Sup ct rejected the Aguilar-Spinelli tests of: (1) Basis of knowledge and (2) Veracity because the lower courts were applying the test to hyper-technical and as separate tests. The Totality of the Circumstances test did not pulverize the Aguilar-Spinelli tests but made them a factor and they are no longer independent tests but one can compensate for the other.
• In Gates, the Sup Ct issued a warning to the lower courts that in reviewing the decision of the magistrate, the standard was not de novo, trial judge can’t reanalyze the probable cause his way, but was simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
• The trial courts and appeals courts are limited to looking at what the magistrate had, the affidavits, to determine if probable cause existed.
• Factors that the courts look at to determine if there was probable cause: Basis of knowledge and Veracity.
• Basis of Knowledge: magistrate may only analyzes the information, but needs to know how the informant knows the information.
• Substantial amount of detail indicates that there is a basis of knowledge. DRAPPER. Like the type of clothes worn, travel schedule, etc.Hearsay information will be acceptable but needs to be placed in affidavit and not much weight is given. Predictions of things that will happen in the future that happen! Observation of the crime or participation in the crime
• Veracity: credibility of informant. Past reliability, admission against his own interest. Example, I bought blow from him. Corroboration by police surveillance or other means. Motivation for informing may be a factor to establish or destroy credibility. The courts like ordinary citizens, their tips are considered more reliable.
Section Four: Search Warrants
• According to the 4th, warrants must have (1) an affidavit by the police officer, and (2) particular description of the place to be searched and (3) particular description of the thing or person to be seized.
• Discovering that the warrant is unnecessarily broad does not necessarily invalidate the warrant such as the finding of contraband of an invalid warrant does not validate it. Maryland v. Garrison.
• The reason for #s 2 and 3 is to prevent general searches. Garrison
• The scope of the search is defined by the object of the search and the places in which there is probable cause to believe that it may be found
• Maryland v. Garrison: valid warrant supported by probable cause but mistakenly went into wrong apartment. Contraband in view. The validity of a warrant and the reasonableness of the manner in which it was executed must be analyzed as two separate issues. Garrison.
• Was the warrant valid when issued? The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose to the magistrate.
• Was the warrant reasonably executed? Sufficient probability, not certainty, is the touchstone of reasonableness under the 4th. The validity of a search pursuant to a warrant depends on whether the officers’ failure to realize overbreath was objectively understandable and reasonable. Cops must act reasonably, but people make mistakes. There is a reasonable mistake exception.
• The knock and announce rule is mandated by the reasonableness inquiry of the 4th amendment. Richards and Wilson
• Wilson v. Arkansas: You have to knock unless there are countervailing law enforcement considerations Court created a per se exception for felony drug charges.
• Richards v. Wisconsin: overruled Wilsons per se exception because (1) in some cases, there are not countervailing law enforcement exceptions, bails of weed and (2) this exception could lead to other exceptions.
• To expand, drug charges are overgeneralized and not every drug investigation poses the risk of substantial degree. Gov’t interest in preserving evidence and safety may not outweigh the individual privacy interests of a no-knock and announce.
• Richards held that cops must knock and announce UNLESS
1. the cops have a reasonable suspicion (actual basis, more than a hunch)
2. that knocking and announcing their presence, under the particular circumstances, would be (a) futile, or (2) that it would inhibit the effective investigation of the crime (for example, by allowing for destruction of evidence, like burning evidence, wiping off fingerprints, or (3) dangerous.
• This rule was derived from the common law and was imbedded in the 4th amendment. However, as in the common law, this rule is flexible and is not strictly applied if there is a countervailing law enforcement interest such as: -threat of violence, -knowledge that suspect is armed, -prisoner escapes and runs into dwelling while police are in pursuit, -reasonable belief that evidence is being destroyed. (nonexhaustive list).
• Property damages and no-knock-entries: US v. Ramirez, no heightened standard. You just have to have reasonable suspicion about one of the countervailing law enforcement factors. Whether this reasonable suspicion test has been met depends in no way on whether the cops must destroy property in order to enter. But your property damage must have been reasonable in relation to the suspicion.
• Cops can also get a no-knock warrant from a magistrate.
Section Five: Warrantless Arrest and Search of Persons
• The Sup ct has long expressed a strong preference for the use of arrest warrants and search warrants.
• Resorting to the warrant process is preferred because it interposes an orderly procedure involving judicial impartiality whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of probable cause
• To leave such decisions to the police would allow hurried actions by those engaged in the often competitive enterprise of ferreting out a crime.
• When the court approves warrantless activity, it is typically because of a view that the police: (exceptions)
1. Were acting in exigent circumstances
2. Were intruding upon some lesser 4th amendment interests, or
3. Were otherwise not involved in activity as to which before-the-fact judicial scrutiny would be useful.
Exceptions
• US v. Watson: Reliable informant told postal inspector about stolen credit cards. Exceptions for past felonies (felonies not commited in the presence of the officer). No warrant is necessary to make an arrest if the arrest was for a past felony, if the rest takes place in public place, and where the arrest was supported by probabl;e cause.
• Warrantless arrest of person
• The 4th amendment does not require a warrant to make a valid arrest for a felony or misdemeanor committed in the presence of a police officer nor is a warrant required to arrest a suspect for a felony not committed in policeman’s presence if there was reasonable grounds for making the arrest. Gerstein v. Pugh
• A policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take administrative steps incident to arrest.
• One the person is in custody, however, the reasons that justify dispensing with magistrate’s neutral judgment evaporates.
• No longer any danger that the suspect will escape or commit further crimes while the police submit their evidence to the magistrate.
• The state’s need for summary action subsides, while the suspect’s need for a neutral determination of probable cause increases significantly.
• The 4th requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following an arrest. Gerstein.
• Judicial determination of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.
• Probable cause determination in a particular case will not pass constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause was delayed unreasonably.
• Examples include delays: (1) for the purpose of gathering additional evidence to justify the arrest, (2) motivated by ill-will against the arrested individual, or (3) for delay’s sake.
• The arrested individual has the burden of proving that the delay was unreasonable if less than 48 hours.
• If suspect does not receive a probable cause determination within 48 hours, the burden of proof shifts to the gov’t to demonstrate the existence of a bona fide emergency or other extraordinary circumstances. Intervening weekends don’t count.
• An unresolved issue is what the remedy is if a suspect is detained for more than 48 hours. Possible remedies: (a) exclusionary rule-suppress evidence, (b) set free, or (c) damages.
• If the remedy will not deter police misconduct then it will probably not be applied.
Warrantless search of the person incident to arrest
• The authority to search is incident to a lawful custody arrest stems from the 4th. Robinson. Automatic searches.
• Robinson arrested for driving without a license, officer had knowledge that no license. Arrested with probable cause. But no reason to believe that he had weapons, did a pat down search and found cigarette pack, no reason to believe weapons in the cignarette pack.
• There are two types of seaches that flow from an arrest:
1. Search of the person and
2. Search of the area around the person/area in persons control. Chimel-says there is some controvery to this.
• The purposes of searching are (1) disarm- to ensure that there are no weapons and (2) prevent the destruction of evidence.
• Allows police departments to make standardized procedures
• Such a search is justified by the need to disarm the suspect (protect officer and public) and to preserve evidence. Officer does not need to have fear that person has a weapon or believes he has evidence.
• If a person is in handcuffs, they can still be searched. One rationale for this is that cops may be afraid to put handcuffs on because he would not be searchable.
• Court created a brightline rule: a search incident to arrest requires no additional justification.
• Hypo: Robinson is arrested in front of friends house. Robinson gives heroin in cigarette package to his friend. Cop gets suspicious and goes back later in the day and gets the cigarette pack. Circuit court s have held that the search had to be incident to a lawful arrest. The court concluded that the search did have to be contemporaneous with the lawful arrest. The meaning of contemporaneous would be a question of fact.
• A search incident to a lawful arrest may be made of the person and of the area within the control of the arrestee.
• A search “incident” to arrest may actually come before the formal making of an arrest if the police had grounds to arrest at the time the search was made. Rowlings v. Kentucky
• A stationhouse search’s scope may be much greater than the search made during the arrest. Justified for: (1) safety reasons, and (2) preserve property of arrestee through inventory.
• Whren v. US: “Pre-textual”. Officer stops to talk to you and sees drugs, arrets you.
• What if an officer stops to talk to you. There was PC to stop the car but no PC to stop the vehicle to search for drugs.
• There should be a Virtual Subjectivity Standard: Would a reasonable officer under the circumstances have made the stop for the reason the offier made the stop?
• The court says no. Lunney says that the possibility for a purely pre-textual stop was there and it is okay so long as the copss have PC to stop the car for something.
• Sometimes an arrest will be unreasonable in a 4th amendment sense because of the amount of force used in making it.
• The means of effecting a seizure is subject to the reasonableness requirement of the 4th. Tennessee v. Garner
• Test in weighing the reasonableness of a search or a seizure: Balance the intrusiveness against the governmental need for that intrusion.
• Applied:
1. The level of intrusivness. (a) this is high, they killed him.
2. The governmental need for the intrusion. (a) it does not further justice to kill him outright. (b) there is no indictation that the governmental process will break down if they don’t shoot and kill fleeing suspects. Most regulations prohibit the cops from stopping a fleeing suspect in this manner.
• Held: Deadly force can be applied to a fleeing felon in certain contexts, but it is not permissible to allow the cops to use deadly force to all felons
• The cops can apply deadly force to fleeing felons when the cops have probable cause to believe that the suspect poses a threat of serious physical harm to the officer or others.
• Garner was not seized when the cops said stop. Instead, he was seized when the officer stopped him through physical force. This is what triggers the 4th amendment. The 4th is triggered when the person is retrained.
• Lunney’s Analysis Timeline
• ONE---Chase
1. Between the chase and the seizure, substantive due process is the appropriate protection for improper police conduct.
Lewis case: passenger on the back of a motorcycle. The cops chased at 100mph very close and Lewis fell off and they ran over him. TH fam agued that the 4th applied, but court rejected this and said that the test was shock the conscience test. (Rochin)
Distinguished from Garner: In Garner there was actually a seizure.
What if the cops were shooting and missing, is the test still STC? Maybe so long as the bullets were missing, you would probably still be here. The differnce is that the intentional application of force was still present in Garner, but in Lewis the ofcr didn’t intend to run him over. Lunney says that the really tough question is when there has been force applied but the person can still run.
STC test- violent indecencies of a society so brutal… When you have a situation involving pursuit, the officer acts for the purpose of causing harm. Recklessness is not enough. He has to act maliciously for the purpose of causing harm.
• TWO--Officer seizes the citizen.
At this point the 4th is triggered. Between the seizure and the conviction the reasonableness test applies.
• THREE—Conviction
At this point the 8th applies, cruel and unusual
• Use of deadly force is a seizure.
• The Sup Ct held that deadly force can be used when the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or to the public.
• Officer must give warning before using deadly force if feasible.
• The reasonableness requirement applies to excessive force as well as deadly force. Graham v. Conner
• Excessive force is analyzed under the objective reasonableness test. Was the officers actions reasonable under the circumstances? Based on the 4th.
• Ct rejected old law which was a subjective test of an officer acting in good faith. Based on the 5th, substantive due process.
• Significance of Graham and Garner cases is that they arose out of a 1983 action for damages and not to determine whether the exclusionary rule should be applied. Sup ct will probably go back to old rule of will excluding the evidence deter police misconduct in the future.
Section Six: Warrantless Seizure and Search of premises
• Crossing the threshold of a house requires a warrant to arrest without exigent circumstances. Payton v. New York
• Do cops need to have a warrant to enter a private home to arrest a person for a felony? Distinguish with Watson, where the arrest took place in a restaurenat, a public place.
• Is a warrantless entry into a home to search more of less intrusive then a warrantless entry into a home to arrest? Sup Ct says that they are both very intrusive. To arrest a peson in a home, they have to have a warrant absent exigent circumstances. The court basis this on the 4th amendment, it’s a constitutional requirment.
• Two ways to make determination if suspect is at the place where the cops are intending to make the arrest.
1. Cops make the determination in the field.
2. Magistrate makes the detrmination.
• Searches and seizure inside a home without a search warrant are presumptively unreasonable.
• The key issue is threshold of home. Officers cannot cross the threshold of a home to arrest without an arrest warrant; but they enter the curtilage to arrest without a warrant if the officer has probable cause. There is no expectation of privacy if a person is on their steps in plain view.
• The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with the criminal activity.
• An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
• Key issues is the difference between entering the suspect’s, for whom the officer has an arrest warrant for, residence and that of a third party where the police believe the suspects may be.
• To get an arrest warrant to arrest a suspect in his own residence, the police must show that there is probable cause to believe that the person committed a crime to the magistrate.
• Police must make the determination whether there is probable cause to believe that the person is home when executing the arrest warrant.
• An arrest warrant is not enough to gain access to a third party’s home even if the police have probable cause to believe that the suspect is in the house. Police must get a search warrant if they want to gain access to third party’s house to search for the suspect.
• Danger is that officers would use warrant to enter 3d party’s home to effect searches if they were unable to get search warrants to search 3d party’s home. This would give police the opportunity to search house after house. Arrest warrant would essentially be a general warrant if police could argue that suspect was possibly there.
• Protects against unreasonable invasion of privacy of third party.
• Key difference is who, officer vs. magistrate is making probable cause determination that suspect is in the home.
• State’s cannot by-pass law that requires warrant when passing threshold because required by 4th.
• When a person is arrested in his home, police can perform a limited search of the home limited to the arrestee’s grab area or lunge area and the search must be contemporaneous with the arrest. Chimel (overruled Rabunowicz that allowed a full search of the home).
• Purpose of Chimel search is to protect police from dangerous weapons or the destruction of evidence.
• Ct is deferential as to what the lunge areas.
• Factors the court evaluates to determine the lunge area: (1) type of crime, (2) is the person secured, example handcuffed, (3) how many officers are present, and (4) how many other people police must keep track of.
• Police officers can not manipulate the lunge area by walking the arrestee around the house. However, lower courts have held that the lunge area does move with the suspect, but no Sup ct decision.
• Buie allows police to make a protective sweep to make sure that there is no one hiding that could endanger the police, but only where a person could be.
• In Buie, (1) Cops are crossing the threshold with a warrant, (2) They find out that he is home through a warrant, (3) He is in the basement and comes up from the basemenet. Cops go into the basement to maje sure that there is no one else hiding in the basement. Cop finds closthes that were worn to commit the crime.
• Held: (1) Incident to arrest, automatically, from an arrest the cop can look in closets and other spaces immediately adjoining the place of the arrest. You probably have to have an articulable basis to get beyond that room. (2) To walk through the entire house (sweep), the cop has to have articuable facts that would lead the cop to believe that a dangerous person was in the house. A protective sweep: this is a cursory inspection. You are only allowed to look in places that could hold a person. You only look long enough to get rid of the reasonable suspicion.
• Distinguish a protective search from Chimel- The search incident to arrest has two purposes around it, safety and preservation of evidence. In a protective searcg, it is cursory and less intrusive.
• Limited to areas where people could hide
• Without probable cause or reasonable suspicion, search must be limited to spaces immediately adjoining the location of the arrest.
• To search beyond the immediate area, the officer must have articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene.
• Not a full search but limited to areas where a person may be found.
• The sweep can last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
• Focus is on the protection of the police and public not the destruction of property.
• Evidence discovered in the protective sweep that is in plain view is admissible as evidence.
• An arrestee’s home can be searched without a warrant if there are exigent circumstances. Vale
• Exigent circumstances that lower courts have come up with include:
1) consent to the search
2) response to an emergency
3) evidence seized is about to be destroyed or is in process of being destroyed.
-Factors the lower courts evaluated to determine if evidence will be destroyed:
- type of evidence,
- has another person or suspect been alerted that police were on to them
- ease of destruction
- Officers may be able to secure area and get search warrant. However, there is no Sup ct decision on whether they can deny others access to the area, i.e. home
- Minnesota Sup Ct held that eminent destruction of evidence was an exigent circumstances and the Sup Ct cited with authority but there is still no definitive decision by S. Ct.
4) evidence to be seized is about to be taken out of jurisdiction
5) danger to officers left to guard contraband, and
6) amount of time to get search warrant
• In Minsey v. AZ: Freesing a crime scene may be acceptable. Here a cop at the door, not letting anyone out was okay. This involved a crime scene involving a homicide and the cops frose it by placing cops at the door.
• When can a cop warrantlessly enter and search?
• After Vale: exigent circumstances to enter and search exist of the cops reasonably concludes that the evidence would be destroyed if the officer delayed obtaining a search warrant.
• Resulting factors from the above test: (1) the amount of time that it would take to obtain the warrant (the urgency of the situation), (2) the reasonableness of the officer’s belief that contraband is about to be removed, (3) the possibility of danger to the cops while guarding the cite, (4) The awareness of the suspects that the cops are on their trail, if the suspect is oblivious to what is going on, lower courts are more likely to require cops to get a warrant. (5) Do you have contraband involved that is readily destructible? Automatic weapons v. LSD.
• Other circumstances where exigent circs exist: hot pursuit, where the suspect is about to escape. Exigent circs are more than flushing of drugs, like situations involving danger to the public.
Section Seven: Warrantless Seizures and Searches of Vehicles and Effects
• Autos receive substantially less 4th protection than premises.
A. The “automobile exception” is an exception to the general rule that a search warrant is required before a search can be executed. A search of a vehicle can be made upon probable cause without a warrant. Carney.
• Basis for the auto exception:
• Historical basis is that autos are mobile and can leave the jurisdiction, and,
• Type of exigent circumstances
• Exception applies to ships, boats, wagons, and other vehicles that can be quickly moved.
• There is less of an exception of privacy because autos are pervasively regulated by gov’t and person knows he can be stopped at any time. One can see into an auto, plain view.
• Court was using the KATZ analysis to determine if people have an expectation of privacy in their autos as they would in their homes.
• Sometimes a car is used as a home, i.e motor home, so what happens then?
• If the vehicle is on the road, then it is transportation and subject to the auto exception.
• If the vehicle is stationary, the Court uses an objective test to determine if a reasonable person would believe that the vehicle is used for a home or for transportation. Factors the Court looks at to determine if it is a home or used for transportation include:
- does it have a licensee plate
- connected to utility
- does it have wheels or is it on blocks
- access to public roads
• Application of the auto exception has never turned in the other uses to which the vehicle may be put, the exception has historically turned on the ready mobility of the vehicle, and the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation.
• These two requirements ensure that:
• Law enforcement efforts to detect and prosecute criminal activity, and legitimate privacy interest of the public.
B. An officer may make a contemporaneous search of the passenger compartment of a vehicle and ant containers therein pursuant to a lawful arrest of a vehicle’s occupant. Belton
• A Belton search of a vehicle is basically a Chimel search applied to vehicles.
• The Court has defined the lunge area or immediate vicinity of an arrest that takes place while a person is in a car to be the passenger compartment area.
• The passenger compartment area includes locked glove boxes and hatchbacks but trunks that are not accessible from the passengers compartment cannot be searched. (Circuit courts are in agreement but I don’t think there is a Sup Ct decision yet.)
• The general rule is that if the person has to exit the car to gain access, ie trunk then it is not part of the passenger compartment.
• The passenger compartment search does not include ripping up carpet or removing door panels. Similar to rule that trunks cannot be searched if they are not easily accessible from the passenger compartment.
• If the Belton search provides probable cause to believe there is contraband throughout the car then the officer can search the trunk and all other areas.
• The authority to make a Belton search comes from the lawful arrest not probable cause. Therefore, the officer can search every container in the passenger compartment and is not limited in scope to searching for items that may contain weapons or any particular type of evidence.
• The search must be performed contemporaneous with the arrest.
• There is not S. Ct decision on what contemporaneous search is, but the 9th circuit has held that a search 35-40 minutes after the arrest was not contemporaneous.
• Once the car is impounded and the arrestee is in the police station the rational to search under Belton probably no longer exist. The evidence cannot be destroyed and any weapons are not a danger to the police because they are no longer in the lunge area of the arrestee.
• There is a split in the circuit courts as to whether a Belton search can be performed after the arrestee is in handcuffs and in the backseat of the police car.
• One rational is that the car is no longer within the lunge area of the arrestee and therefore the search is no longer authorized by Belton.
• Another rational is that if another person was with the arrestee, after the police left, person could destroy evidence in car or use a weapon against the officer.
• Some circuits believe that even if no one else is there the officer should be able to search and should not question the police.
• S. Ct may go this way because Rehnquist like to set bright lines and they are interested in protecting the police.
C. If officers have probable cause to believe that there is contraband in a vehicle, the officers can search the vehicle but are limited to searching areas where the object could be and where they believe the object is located. Acevedo. The more the police know the narrower the search.
• Basis for the exception is the inherent mobility of auto and lesser expectation of privacy.
• Scope of search is limited by:
• The object of the search, and cannot search ashtray is police are searching for guns.
• However, once there is a lawful arrest, then police can perform a Belton search of the passenger compartment.
• Place where the police have probable cause to believe the object may be located. Cannot search truck if officers only have probable cause to believe that objects is in the front seat.
• Acevedo has done away with the container doctrine in cars.
D..Police may conduct an “inventory search” without a warrant of an automobile when they are going to seize an automobile. Bertine
• An inventory search is not based on probable cause and no warrant is necessary.
• The purpose of the exception is to:
1) protect an owner’s property while it is in the custody of the police,
2) protects the police against claims of lost, stolen, pr vandalized property,
3) protects police and surrounding citizens from danger, ie bombs
• Scope of search must be in furtherance of one of these three legitimate gov’t interests to be allowed, ie cannot read letters (more investigative than for inventory purposes)’
• A search is an inventory and not a criminal investigative search if:
• It is performed in good faith pursuant to, if the search is done to investigate then there must be probable cause or an exception to the search warrant rule, i.e. Belton.
• Standardized police procedures where all arrestees are treated equally.
• Police officers are allowed to use their discretion so long as it is exercised within set police procedures and the option chosen was not just to conduct a search. This prevents unfairness based on type of individual or arrest.
• Appears to have to be department procedures not just an officer’s procedure, however, there is no S. Ct decision on this point.
• Bertine does not require there to be a police policy to either mandate or bar inventory of all containers.
• Evidence of criminal activity discovered during an inventory search is admissible even if the search had no other basis than for inventory purposes.
• Differences between Belton and Inventory Searches.
• Where --- Belton: limited to passenger compartment area. Inventory: all areas of vehicle so long as it promotes the furtherance of one of the enumerated gov’t interests.
• When --- Belton: contemporaneous with a lawful arrest. Inventory: when the vehicle is taken into police custody.
Section Eight: Lesser Intrusions; Stop & Frisk: Searches that have nothing to do with PC.
A. An officer can stop a suspect if he has a reasonable suspicion that he was or is involved in criminal activity, grounded in specific and articuable facts, , and the officer may frisk the suspect for weapons if he has a reasonable suspicion that the suspect is armed and dangerous. Terry
• This reasonbable suspicion is meant to be a lighter standard than PC and a heavier standard than a police hunch.
• The reasaonable suspicion must exist that the inception of the stop.
• Purpose of a terry stock is not to find evidence but to ensure offier and public safety.
• The 4th is triggered when a person is:
• Stopped- the 4th amendment does not only apply to arrest but is triggered when a person is seized.
• To stop needs reasonable suspicion.
• A person is seized when the police show authority or force, or create circumstances where there is a de facto arrest.
• Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
• The stop is analyzed under the reasonableness clause of the 4th.
• A stop is reasonable if grounded in specific and articulable facts and inferences that a trained police officer can draw from those facts that the officer can later explain to a magistrate to determine if the stop was reasonable. Policeman’s experience can also be a factor.
• The reasonableness of the stop must be analyzed at:
1) the inception of the stop, and
2) the manner of the stop.
• If the officer’s suspicions are not confirmed then he must let the suspect go, but he can keep him under surveillance.
• Frisked- a frisk is an intrusion that constitutes a search for the 4th.
• Must have more than a reasonable suspicion to frisk, must have suspicion that suspect is armed and presently dangerous.
• A frisk is analyzed under the reasonableness clause of the 4th.
• A frisk is reasonable if grounded in specific and articulable facts and inferences that a trained police officer can draw from those facts that the suspect is armed and dangerous and the officer can later explain to a magistrate to determine if the frisk was reasonable.
• Policeman’s experience can also be a factor
• The scope of a frisk is confined to what is minimally necessary to discover weapons and to disarm.
• If an officer removes contraband while removing a weapon, it is a admissible because it is a fruit incidental to the search for the weapon.
• Reasonable suspicion that a person is armed and dangerous can come from a reliable third party. Adams v. Williams
• The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possess a reasonable belief based on “specific and articulable facts which, taken with the rational inferences from those facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
• Different from a Belton search because there is no arrest.
• There is no such thing as a consensual car stop, thus to stop a car the police must have a reasonable suspicion.
• A separate analysis must be made for the stop and the frisk.
• The dangers of a Terry stop is that the police could use it to harass minorities because they could probably always come up with justifications for the stop later.
• A high crime area never constitutes a reasaonable suspicion. Wardlow
• The justification of an expectation to the probable cause requirement in a Terry stop is a balance between the gov’ts interest in effective law enforcement, detention, and the need for officers to be able to protect themselves and others from armed and dangerous criminals; and the intrusion that a stop and frisk entails.
• The court balanced these competing interests and thus require the stop and frisk to be reasonable under the 4th.
• A Terry stop can be used to investigation prior felonies, but maybe not already completed misdemeanors.
• Difference is balancing gov’t interest between completed crimes and crimes in progress. Gov’t interest in already completed misdemeanors may not be enough to warrant the intrusion of a stop.
B. A search based in consent is valid only if the initial detainment was valid. Royer.
• A stop is consensual so long as the person feels free to leave the encounter or discontinue the encounter.
• Consensual interaction is an objective standard, the test is if a person under the “totality of the circumstances” would feel he could terminate the encounter.
• Subjective intent of officer is not important. Test is an objective test. 5 ft cop with bad intentions may not be as threatening as a 7ft cop with good intentions. What individual person feels is irrelevant also.
• Circumstances that might indicate a person no longer feels free to leave or discontinue an encounter include:
1) threatening presence of several officers,
2) display of weapon by an officer,
3) Physical touching of the suspect by the police,
4) Use of language or tone of voice indicating that compliance with the officer’s request might be compelled,
5) Retaining personal item of suspect, ie ticket,
6) Police tells suspect he is suspect of committing a crime,
7) Did police tell the suspect he could terminate the encounter?
• In consensual exchange, the suspect can terminate the exchange at anytime and that termination does not create reasonable suspicion or probable cause.
• A seizure occurs when there is physical force or submission to the assertion of authority. Hodari D.
• A person is not seized when he is running from the police.
• Flight from the approach of strangers or police are strong indications of criminal activity. Sibron.
• A consensual search does not have 4th protections so long as the stop is valid.
• A ( cannot argue that a person who knows his person or affects contain contraband cannot give consent because the “reasonable person” test presupposes an innocent person.
• The gov’t has the burden of proof to show that consent was given and that suspect was not just acquiescing to authority.
• An officer identifying himself as an officer does not make a search non-consensual.
• At some point a consensual stop can turn into a Terry stop or de facto arrest. At that point a consensual search is invalid unless the stop can be justified by reasonable suspicion (Terry) or probable cause (arrest). Reasonable suspicion informant language for Terry.
• A consensual stop can turn into a Terry stop when the police tell the person they are suspected of a crime or asked the person to go to another place.
C. Police can seize personal property with a reasonable suspicion without a warrant. Place.
• Seizure of personal property is analyzed under the same analysis as the seizure of people is under Terry.
• When an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. Place.
• At times, stop and frisk us conducted on the basis of profiles that supposedly assist police by identifying characteristics peculiar to persons engaging in criminal behavior. Law enforecements began profiling…
• Markonni’s profile:
1. arrival from or departure to an indentified source city
2. carrying little or no luggage, or large quanities of empty suitcases
3. unusual intentary, such as rapid turnaround time for a lengthy airplane trip.
4. use of an alias
5. carryting large amountd of currency
6. purchasing airline tickets with a large amount of small denominations
7. unusual nervousness.
Section Nine: Vernonia and Schenckloth
• Schneckloth: In order for consent to be voluntary, need to know that he has the rights to refuse.
• Look to totality of the Circs.
• Custody is a factor in the totality.
Section Ten: Consent Searches
A. Consent searches are frequent relied upon by police as a means of investigating suspected criminal activity.
• Sometimes probable cause is present but the police feel either they do not have time to get a warrant or that they would simply like to avoid that time-consuming process, but more often an effort is made to obtain consent where probable cause is lacking and no warrant could be obtained.
• In situations where the police have evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.
B. When the subject of a search is not in custody and the state attempts to justify a search on the basis of consent, the 4th and 14th amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Bustamonte.
• Voluntariness is a question of fact to be determined by the “Totality of the Circumstances”.
• While the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
• The requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal ( in order to preserve a fair trial.
• The protections of the 14th and the 4th are wholly different because the 14th promotes the fair ascertainments of truth at a criminal trial, where the 4th protects the security of one’s privacy against arbitrary intrusions by the police.
• Factor the court looks at to determine if the person gave his or her consent voluntarily:
1) age,
2) intelligence,
3) Mental state,
4) Sex,
5) Race,
6) Officer’s failure to inform suspect of right to refuse consent,
7) Coericion
• An officer’s threat to obtain a search warrant is not coercion if in fact he has probable cause or reasonable belief he has probable cause to get a search warrant.
• The standard for measuring the scope of a suspect’s consent is neither the suspect’s intent nor the officer’s perception thereof but rather that of objective reasonableness. Jimeno
• .Jimeno says that a person can give limited consent. If a person gives consent can look in pass compartment, but not in the trunk
• What would a typical reasonable person have understood by the exchange between the officer and the suspect?
• When a person says an officer can search the car he probably does not mean rip up carpet also.
• The object of the search is an important factor in determining the scope of the search.
• Police do not have to tell suspect that they do not have to consent to a search because the court does not want to heighten the formalities and make everyone nervous.
• Court indicated that a different standard to determine if voluntary consent was given to search when the person was in custody may be analyzed under a different standard than the totality of the circumstances.
• Lower courts have been particularly sensitive to the heightened possibilities for coercion when the “consent” to a search was given by a person in custody.
• However, in Watson the court held that the standard to determine reasonableness of a consent search when a person in custody is the same as when a person is not in custody. Thus, the totality of the circumstances test applies and the fact the person is in custody is only a factor.
• After consent is given, the suspect can revoke his consent at anytime and the search must cease.
• Revoking consent does not create reasonable suspicion or probable cause, but behavior of the suspect during the search may give the police reasonable suspicion.
B. Voluntary consent to search can be given by a third party who the police officers reasonably believe possesses common authority over the premises. Rodriquez & Matlock.
• Common authority rests on mutual use of property by persons generally having joint access or control for most purposes. Matlock.
• The burden of establishing that common authority rests upon the state.
• Factors the court considers to determine if a person possesses common authority:
1) paying rent,
2) being a member of the household,
3) name on the lease,
4) have a key that was voluntarily given to person, and
5) right to have guest over.
• The police do not have to be correct that person giving consent has common authority, they only need to be reasonable in believing that person has common authority.
• The reasonableness of an officer believing that a person has common authority is an objective standard.
• Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?
Chapter 6
Police Interrogation and Confessions
Section One: The Due Process “Voluntariness” Test for Admitting Confessions
A. The due process of the 14th amendment was initially used to determine if confessions were admissible as evidence or not. Ashcraft
• In Ashcraft, coersive behavior of interrogation is discouraged. A confession is admissible if voluntary. The standard to determine if a confession was voluntary was the totality of the circumstances test.
• Police encounters are examined under the Due Process clause.
• Watts v. Indiana- Court found confession to be involuntary because 5 day interrogation, 2 days in “the hole”. No sleep, inadequate food
• A confession was admissible if it was “voluntary”. The standard to determine if a confession was voluntary was the “totality of the circumstances” test.
• Factors the court considered in the Totality of the Circumstances were:
1) deprivation of sleep (extensive questioning)
2) physical intimidation (threats and beatings always violate the 14th)
3) Promises or inducements, (ok to tell suspect that you will tell the DA that he was cooperative if he confesses, but cannot promise a reduced sentence)
4) Trickery
5) Individual characteristics of the suspect,
6) Where people are questioned
7) Length of detention
8) Use of force
9) Methodogly of questioning
• Subjective factors: (Lunney in Watts)
1. subjects age
2. education
3. mental illness
4. sobriety
5. familiarity with the crim justice system
• For a confession to be involuntary, there must be police coercion. Additionally, almost anything could be a factor.
• Reasons why the court did not allow involuntary confessions:
1) doubtful reliability because they were obtained by coercion,
2) even if they were reliable they were inadmissible to deter police misconduct,
3) person could not voluntarily confess because they were insane or intoxicated.
• Court eliminated this reason in Connelly. Ct held that mental state of the ( does not make the confession involuntary in and of itself, it is just a factor in the totality of the circumstances.
• The 14th applies to every police/citizen encounter and the Totality of the Circumstances will be applied to determine if a confession is voluntarily given, and thus, admissible.
• Miranda only applies to confessions that are given during custodial interrogation.
• The problem the court had in relying on the 14th and the Voluntariness test was that the test was fact specific and all cases were going to be different. Cases were not going to be precedent and facts were always going to be different.
• Factors in the totality if the circumstances for determining Purely Due Process voluntariness:
1. Physical injury: if there is a physical injury to the suspect, then it is conceptually involuntary. Even manipulating the person’s fear of physical injury could render the confession involuntary. Fulminante vs. Arizona:
Section Two: Massiah and Escobedo: The Court grows disenchanted with the “Voluntariness” Test and turns to the Right to Counsel
A. After a suspect is indicted, the 6th amendment right to counsel attaches. Massiah, read Massiah!!!!!!
• After the right to counsel attaches, the suspect cannot be interrogated (even surreptitious interrogations) unless the suspect has counsel or has waived his rights to counsel.
• The 6th’s right to counsel applies to the states through the 14th. Gideon.
• Process of indictment: Because formal charges were brought the gov’t is now adversarial and therefore 6th right to counsel applies.
• In Massiah there was no signs tha this person was unaware of his rights or was cajoled into speaking. This is a hard line rule. At this point, the court is attempting to use the 6th in place of voluntariness. Later the court backs up and uses the 5th and then in the 80s goes back to 6th.
• Deliberate elicitation for the 6th and custodial interrogation for the 5th. Massiah covers deliberate eliciatation after indictment
• In Escobedo, the ( had not been indicted but he had asked for counsel and was denied. The court held that the 6th amendment right to counsel attached and his incriminating statements were inadmissible. The court moved the right to counsel back from the indictment stage to a stage when the police had control over the defendant and hey were involved in accusatory questioning.
• The narrow holding of the case is that the right to counsel attached when the suspect has:
1) become the focus of the investigation
2) been taken into custody
3) been interrogated
4) requested and been denied counsel of an atty
5) not been warned of right to silence
- then the confession or statements are unconstit.
• The holding of the case is that once the accusatorial process starts, the right to counsel is invoked.
• The 6th applies at indictment, information (charging document is called information) and arraignments.
• A system that relies too much on confessions will become unreliable and subject to abuse.
• The ct retreats from Escobedo because the 6th was unworkable and Escobedo is not limited to its facts.
• On exam, don’t argue Escobedo unless the facts are identical and Escobedo is only good law if the factors of the narrow holding are met.
• The 6th amend right to counsel is offense specific. This means that the police can ask questions to gain information without having to have the suspect waive his right to counsel for offenses that he has not been formally charged with. Perkins
Section Three: Miranda: The Court builds a Confession Doctrine on the privilege against compelled self-incrimination
A. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the ( unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda.
• Recall that Escobedo dissenters expressed a preference for a self-incrimination approach because the self-incrimination clause prohibits only compelled statements.
• Setting the stage for Miranda…the cruel trilema became the basis for the 5th.
• The cruel trilema:
1. the person could refuse to take an oath and if they did they were guilty of contempt. TORTURE
2. take the oath and tell the truth about religious beliefs and if they were something other than the religion of the court. DEATH
3. take oath and lie. DEATH.
• The 5th stated that no person shall be compelled in any criminal trial to be a witness against himself.
• In 1964 Hogan, the Sup ct concluded that the 5th was sufficiently fundamental to be incorporated and applied to the states through the due process clause. Up until the 60s the 5th was thought only to apply at trial.
• Miranda: The court turns away from the 6th (RTC) and turns toward the 5th (privilege against self-incrimination). The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the ( unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
• Why did the court decide the way they did in Miranda? Because of coercive police tactics that were occurring:
1. Extensive Interrogation: (Watson) 36 hour interrogation, even 1 hour is coersive
2. Reverse Line-up
3. Mother Jeff Routine: police offier pretending to keep the bad cop off.
4. Trickery
5. Psychological: when the ofcr is acting like a friend
• One of the more important aspects of Miranda is that it is supposed to put a suspect on notice that the person is not a friend.
• Miranda looks at creating an atmosphere of free will. Under Browning, custodial interrogation robs a person of free will to confess, which would require that a person had understanding of their constitutional rights and waived them. Can assert rights at ANY time, even after answering some questions.
• Why give the warning? To inform, put suspect on notice of possible interrogation, adversial process, that police know and respect rights
• A person is entitled to receive Miranda warnings when they are in custody and they are being interrogated. These must be given at the outset of the custodial interrogation. Warinings must be goven when the person in undergoing interrogation while in custody OR is deprived of their freedom of action in any significant way.
• Procedural safeguards to protect the suspects free will that must be used to secure the privilege against self incrimination are:
1) right to remain silent
- Even if person is aware of his rights, he still needs to be told of his rights because: (a) it takes that evidentiary issue out of contention, and (b) it is not just whether a person knows his right, but a custodial interrogation creates a coercive atmosphere. Telling the suspect his rights lessens the coercive atmosphere and tells suspect that the officer will respect his rights.
- If suspect speaks to police after the warnings are given but then decides not to talk anymore, the police must respect suspect’s authority to terminate the conversation.
- For those unaware of the privilege, the warning is needed simply to make them aware of it – the threshold of requirement for an intelligent decision as to its exercise.
2) Anything that the suspect says can be used against him in court of law,
- This warning is used to ensure that the suspect is aware of the first warning and the consequences of failure to comply with it.
- It is only through an awareness that there can be any assurance of real understanding and intelligent exercise of the privilege.
3) Right to have counsel present during questioning, and
- reaffirms the right to remain silent
- Once person asks for counsel, questioning must stop
- Miranda creates a 5th right to counsel when there is custodial interrogation
- The court explains why it is not enough to merely have a right to remain silent without a right to counsel to back it up, then the police would read the little right and then they would start the interrogation. Defendants decision to remain silent would quickly be over-born by questioning. So, the right to remain silent doe not have any effect when there would be no atty.
4) An atty will be appointed if the suspect cannot afford one.
- Without this warning, the suspect may believe that he does not have this right if he cannot afford an atty.
• The procedural safeguard of reading a person his rights is a result of police tactics of physiological rather the physical custodial interrogation. Unless adequate protective devices are employed to dispel the compulsion inherent is custodial surroundings, no statement obtained from the ( can truly be the product of his free choice.
• The state has the burden of proof to establish that a suspect has waived his Miranda rights because it is the state that is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of earnings given during incommunicado, the burden is rightly on its shoulders.
• Mere silence on the part of the suspect is not a waiver of Miranda rights.
• State also cannot use the fact that the suspect invoked his Miranda rights as evidence to establish guilt.
• Incriminating statements or confessions are not admissible at trial if the suspect was not advised of his Miranda rights.
• Exceptions:
1) A statement or confessions made where Miranda rights should have been advised but were not can be used to impeach the suspect if he testifies in his own defense. –Harris
- To be used for impeachment purposes, the statement must have been voluntarily given under the Due Process Clause of the 14th, totality of the circumstances.
- Statements made by ( after Miranda warnings are given but the rights are denied can also be used for impeachment purposes but are inadmissible as evidence. –Hass
2) A suspect’s silence before Miranda rights are advised can be used against the suspect.
• Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken in to custody or otherwise deprived of his freedom of action in a significant way.
• Miranda clearly sets out that it may not be requirement of the 5th. If congress decides to set out a mechanism to protect the 5th it can. However, if Congress does it must be as protective as Miranda.
• If Congress tried to legislatively overrule Miranda with a less protective statute, the validity of the statute would be determined by the derivation of the Miranda rights.
• If the Miranda rights are derived from the 5th, then Congress cannot overrule Miranda. (Liberal)
• An argument that Miranda is based on the Constitution is that it applies to the states via the Due Process Clause.
• If Miranda is a judge made rule, congress could legitimately overrule. (Conservatively)
• More recent courts are interpreting Miranda to be a judge made rule.
• Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. Perkins.
• They are not necessary because the concerns of a police-dominated atmosphere and compulsion are not present.
• The purpose of Miranda is to prevent government officials from using coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. Mauro
• The consequences for failing to give Miranda rights: the confession is inadmissible.
• Miranda applies regardless of the type of statement, I did it, he did it…
• The Court called the Miranda rights not themsekves rights protected by the Constitution but only procedural safeguards or prophylactic rules designed to provide practical reinformecment for the privilege against compelled sel-incimination.
• Lunney says:
• THEre are significant differences to the exclusionary rule under Mapp versus Miranda warnings.
• The exclusionary rule under Mapp is not a personal, constitutional right. Instead, this is a judge made rule to deter police misconduct (Leon). The exclusionary rule does nothing to make sure that reliable, probative evidene is before the jury. Instead, it has the opposite function – it keeps good evidence away from the jury.
• Miranda on the other hand, protects a fundamental trial right. Also, Miranda rules expess the court’s preference for an accusatorial system of justice, i.e. that the police have to prove a crime independently of a confession. Contrast this to an inquisitive system of justice. Also, the argument goes that Miranda does increase the truth seeking function of a criminal trial. Lunney says this is a controversial premise.
• A mirandized confession needs to be voluntary.
• Dickerson points out that the voluntariness test is still alive. Held: Miranda, being a constitutional decision of this Court, may not in effect be overruled by an Act of Congress. (2000)
Section Four: Applying and explaining Miranda
A. A person is in custody for Miranda purposes when has been: 1) formally arrested, or 2) his freedom has been restricted to a degree associated with formal arrest. Beheler & McCarty
• The court looks to an objective standard to determine if a suspect’s freedom has been restricted to a degree associated with a formal arrest.
• Factors the Court evaluate to determine if a reasonable person would believe he was in custody include:
1) number of officers present
2) physical restraint, ie handcuffs
3) told you could not leave,
4) place of questioning
• It is more likely than not to find a person is not in custody if in home or in place where person would be comfortable, ie public place.
• It is also not universally true that a person is in custody if the questioning takes place at a police station, ie suspect voluntarily goes to police station. Mathiason & Beheler
• The subjective intent of the officer or the subjective intent of the suspect is irrelevant.
• The objective standard avoids reliance on self-serving statements by the police of the suspect, also avoids the need to determine the officer’s state of mind, and frees the police of responsibility for the idiosyncrasies of various suspects.
• Custody implies involuntary thus the two are mutually exclusive.
• If a person goes to a police station on his own initiative then he cannot be in custody because he went voluntarily. However, once he is prevented from leaving he may then be in custody.
B. Interrogation for purposes of Miranda is: 1) express questioning, where the officer asks or makes direct questions to the suspect or 2) its functional equivalent of express questioning. Innis.
• Functional equivalent to express questioning means any words or actions on the part of the police that a reasonable officer should know are reasonably likely to elicit an incriminating response from the suspect.
• Objective Part- if a reasonable officer should know that the words or actions would elicit a response then it is an interrogation.
• This doesn’t mean that the intent of the officer is irrelevant because where a police practice is designed to elicit an incriminating response, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.
• Subjective Part- any knowledge that police have had concerning the unusual susceptibility of a ( to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect.
• It’s the suspect, not a reasonable suspect.
• Can appeal to the consceinece of the suspect- classic technique.
• Interrogation does not include questions that are asked attendant to arrest and custody, ie, routine questions asked during: Kordosky. Exceptions:
1) Rountine booking questions (name, age),
2) finger printing,
3) photograph
• The court is more deferential to the police for questioning at the arrest scene than for questioning that occurs later.
• Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. Perkins.
• Miranda warnings are not necessary because the essential concerns underlying Miranda of a police dominated atmosphere and compulsion are not present when a person speaks to someone he does not know is a police officer. Perkins
• Example: when an undercover cop posing as an inmate talks with another inmate suspected of a crime.
• Voluntariness of statements still needs to be analyzed under the Due Process Clause
C. Police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Minninck
• Once the accused requests counsel, officials may not reinitiate questioning until counsel has been made available to him. Edwards
• Police are barred from reinitiating intergradations unless the accused has counsel with him at the time of questioning whether or not the accused has consulted with counsel. Minnick. Prevents police from wearing a person down.
• Edwards applies even when the police want to question a suspect about an offense unrelated to the subject of their initial interrogation.
• After the suspect has invoked his right to counsel, the police may question the suspect without counsel present if the suspect makes a determination of his own free will he wants to talk to the police. Bradshaw.
• Two step process:
1) suspect must have reinitiated a conversation about the investigation,
- suspect must evidence a willingness to discuss the case.
2) suspect must knowingly and voluntarily waived Miranda rights
- Although mere silence in the face of the warnings is not enough, the suspect’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may support a conclusion that a suspect has waived his rights. Butler
• A suspect must unambiguously request counsel. Davis.
• The suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable officer in the circumstances would understand the statement to be a request for an atty. Davis
• Objective test give police officers and courts a brightline to follow.
• After a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly request for an atty.
• May be good police work to stop and clarify an ambiguous request, but clarifying questions are not required.
D. The admissibility of statements obtained after a suspect has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupously honored. Mosley.
• Unlike when suspect invokes his right to an atty, the police can try to reinitiate conversations with the suspect so long as they scrupulously honor his right to silence.
• In Mosley, the court held that the police officer has scrupously honored the rights of the suspect because the questioning was:
1) by different officers that each gave the warnings,
2) significant amount of time between questioning, and
3) questioning was about different crimes.
4) New Miranda warning given.
• Lunney is not sure what the result would be if any of these factors were missing.
• Lunney said that the right to counsel and the right to silence is heavily tested on the exam.
E. There is a public safety exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence even after the suspect is in custody. Quarles.
• Overriding considerations of public safety justify an officer’s failure to provide Miranda warnings before he asked questions devoted to locating the source of the danger. Quarles.
• The public safety exception applies when an officer believes there is immediate danger to himself or others.
• The test is an Objective Test.
• The subjective intent of the officer in asking the question is irrelevant. The test is met if a reasonable officer would ask the question of public safety.
• If the police are required to recite the familiar Miranda warnings before asking the whereabouts of a gun, suspects might well be deterred from responding.
• Rational for having the procedural safeguards of Miranda was a balance between the protection of 5th amendment rights and the social costs of less convictions. However, when there is a danger to the public the cost is more than just failure to obtain evidence useful in convicting the suspect, therefore, the procedural safeguards of Miranda do not need to be read.
• Court did not want officers to have to make on the spot decisions whether it was more important to protect the public or preserve evidence to be used at trial.
• Allows officer to follow their legitimate instincts when confronted with situations presenting a danger to the public safety.
• The public safety exception allows the pre-Miranda statements to be admissible even though Miranda was not given.
• However, the statements must still be analyzed under the 14th and Due Process to see if the statements violated the 5th amendment against coercion.
• Analysis:
1) Was Miranda warnings given? If no
2) Is there custody? If yes
3) Is there interrogation? If yes
4) Does the public safety exception apply? If yes
5) Analyze under Totality of the circumstances test to determine voluntariness.
F. A suspect in custody who once responded to unwanted yet uncoercive questioning prior to his Miranda warnings is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Elstad.
• Miranda warnings are prophylactic and are more broad than the 5th amendment.
• The 5th only prohibits use of compelled testimony by the prosecutors in its case in chief.
• There can be a violation of Miranda warnings, but not a constitutional violation of the 5th.
• Violation of Miranda is only a presumption that the 5th has been violated.
• However, this presumption is irrebuttable for purposes of the prosecution’s case in chief.
• If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the 5th amendment itself.
• Statements in violation of Miranda are inadmissible, except to impeach.
• However, absent coercion, admissibility of subsequent statements should turn solely on whether it is knowingly and voluntarily made.
• If the first incriminating statements are obtained by coercion, then there might be a different result because there is a constitutional violation as opposed to a Miranda violation.
• The Derivative Evidence Rule, or “Fruit of the Poisonous Tree Doctrine”. Is that evidence derived from a constitutional violation will be suppressed.
• The fruit of the poisonious tree doesn’t apply to Miranda. It is a dicturne that comes into play for constitutional violations, example: illegal arrest, then suspect confesses. The confession is the fruit of poinsin, the arrest.
• This is why the distinction between a Miranda violation and a 5th violation is important because the Derivative Evidence Rule does not apply to Miranda violations those violations are not constitutional violations.
• Exceptions to the Derivative Evidence Rule:
1) Dissipation or Attenuation-
2) Inevitable Discovery- evidence would have been found anyway. Williams II
- State has burden to prove that evidence would have been discovered by lawful means anyway by a preponderance of the evidence. Williams II.
3) Independent Source Rule- police have another source for the evidence.
• An incriminating statement made while a suspect is in custody prior to Miranda warnings being given are inadmissible. However, subsequent statements given after Miranda warnings are given are admissible. Elstad.
• The reason is that there is no constitutional violation, so the Derivative Evidence Rule does not taint the subsequent Mirandized confession.
• Some members of the majority focused on the fact that there was a subsequent act of free will.
• The question left open in Elstad is whether physical evidence discovered as a result of the pre-Miranda confession is admissible.
• Those in the majority may go the other way with physical evidence because there is no subsequent exercise of free will.
• However, the opinion refers to fruits, not fruit.
• If there is a violation of the 5th because the first confession was coerced, a subsequent confession given after Miranda will only be admissible if there is attenuation. Look at the Totality of the Circumstances to determine attenuation:
1) was Miranda given,
2) Time between confessions,
3) Discussion with family or lawyer.
• The suspect may effectuate the rights conveyed in the Miranda warnings provided the waiver is made voluntarily, knowingly and intelligently. Johnson v. Zerbst.
• The inquiry has two distinct dimensions:
1) The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.
2) The waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.
• Only the Totality of the Circumstances reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
• Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Moran v. Burbine
• Burbine: the court isn’t going to broaden Miranda. Diffecnt from Escodebo, which was a 6th anmend case, where requested to see his atty and they denied him versus Burbine where no idea he had an atty.
• The 6th amend isn’t triggered until the suspect is formally charged with a charge, because isn’t until govt changes positions from investigators to adversarial.
• The purpose behind Miranda is to dissipate the compulsion inherent in custodial interrogation and insure the suspect’s 5th amendment right against compulsory self-incrimination.
• Thus, anything that goes on outside of the custodial interrogation does not have anything to do with this purpose.
• Miranda rights are personal rights and can only be exercised by the suspect and not a third party.
• Unlike the limitations placed on the 4th, a ( has a right to habeas corpus review by the federal system to determine if his conviction rests on statements obtained in violation of Miranda. Withro v. Williams
• “Prophylactic” though it may be, in protecting a (s 5th privilege against self-incrimination Miranda safeguards a “fundamental trial right”.
• As distinguishable form the Exclusionary Rule that is not reviewable because it protects future rights.
• This (s privacy interest may have already been infringed upon.
• Habeas Corpus review is not to determine the guilt or innocence of a (, but to determine if there has been a constitutional violation.
• Violations of the 4th are not reviewable under Habeas corpus as long as a full and fair trial was provided. This needs to be put in the 4th amendment analysis.
Section Five: Massiah revisited: Massiah and Miranda compared and contrasted
A. Once adversary proceedings have commenced against an individual (e.g., he has been indicted or arraigned) he is entitled to the assistance of counsel and the gov’t may not “deliberately elicit” incriminating statements from him, neither openly by uniformed police officers nor surreptitiously by “secret agents”. Williams I.
• Once the right to counsel attaches under the 6th, because accusatorial proceedings have begun, deliberate elicitation of incriminating information from the ( when counsel is not present and has not been waived by the government triggers a constitutional violation of the 6th.
• Miranda versus 6th Amendment Right to Counsel
• What triggers each? BOTH MUST BE INVOKED
• Miranda- custodial interrogation
• 6th Amend RTC- deliberate elicitation of incriminating information without counsel and by formal proceedings. Offense specific, police can’t ask about crimes not indited for.
• What is the purpose behind each?
• Miranda- goal is to reduce police dominated atmosphere to prevent compelled incriminating statements in violation of 5th.
• 6th RTC- goal is to protect against interference between client and atty.
• Once the 6th RTC attaches, it appears that a ( can waive this right and it can be validly waived without assistance of counsel. Williams I. (Powell’s Concurrence)
• The right to counsel can be waived after the 6th attaches by a knowing, intelligent and voluntary waiver. Patterson v. Illinois
• Signing Miranda waiver form document was sufficient to make a knowing and voluntary waiver of the right to counsel under the 6th. Patterson v. Illinois.
• This was sufficient for post indictment waivers, but the court left the question open as to whether it would be sufficient the closer the ( got to trial.
• Not all Miranda type waivers will pass 6th amendment scrutiny. In Burbine if he has been indicted before he waived his right to counsel, the police would have has to inform him that his counsel was trying to contact him.
• This goes back to the fundamental purpose of the 6th RTC to insure that the state will not interfere with the atty-client relation.
• The 6th amendment right to counsel is violated if an informant deliberately elicits incriminating from a (. Henry.
• In Henry, the Court held that “Active” informants violated the 6th amendment because the purpose behind the 6th is to prevent the state from interfering with the atty-cleint relation. NO difference between police asking or informants. (person can be in custody or not).
• This is distinguished from eliciting information from suspects that are in custody but have not yet been formally charged.
• It is ok to elicit information from suspects in custody by using informants because of the purpose of Miranda is to lessen the inherent coercion of a police dominated atmosphere. If the suspect does not know he is being interrogated then there is no coercion.
• The difference between using informants to deliberately elicit information from suspects/(s goes back to the fundamental difference between Miranda and the 6th amendment RTC.
• However, “passive” informants can be used to obtain incriminating evidence so long as the informant does not elicit the information. Kuhlman v. Wilson.
CHAPTER SEVEN
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