Fourth Amendment



Table of Contents TOC \o "1-3" \h \z \u Fourth Amendment PAGEREF _Toc215464951 \h 4I.Arrest; Probable Cause; Search Warrants PAGEREF _Toc215464952 \h 4A.What is a “search” (or a “seizure”)? PAGEREF _Toc215464953 \h 51.Scope of items subject to search and seizure PAGEREF _Toc215464954 \h ernment conduct requirement PAGEREF _Toc215464955 \h 53.Reasonable Expectation of Privacy PAGEREF _Toc215464956 \h 6B.The “Plain View” Doctrine PAGEREF _Toc215464957 \h 111.Plain view doctrine generally PAGEREF _Toc215464958 \h 112.Use of mechanical devices generally PAGEREF _Toc215464959 \h 123.Mechanical devices “not in general public use” PAGEREF _Toc215464960 \h 134.Contorted positions PAGEREF _Toc215464961 \h 145.Aerial observation PAGEREF _Toc215464962 \h 146.Use of other senses PAGEREF _Toc215464963 \h 157.Plain view where police on defendant’s property PAGEREF _Toc215464964 \h 16C.Probable Cause Generally PAGEREF _Toc215464965 \h 161.Applicability of probable cause PAGEREF _Toc215464966 \h 162.Basic requirements for probable cause PAGEREF _Toc215464967 \h 173.No admissibility limitation PAGEREF _Toc215464968 \h 174.Only evidence heard by magistrate used PAGEREF _Toc215464969 \h 175.Facts as reasonably believed by police PAGEREF _Toc215464970 \h 186.“Boiler plate” language in warrant PAGEREF _Toc215464971 \h 18D.Particular Information Establishing Probable Cause PAGEREF _Toc215464972 \h 191.Evidence from officer’s own observation PAGEREF _Toc215464973 \h rmation from informants PAGEREF _Toc215464974 \h 193.Suspect’s criminal reputation PAGEREF _Toc215464975 \h 20E.Search Warrants – Issuance and Execution PAGEREF _Toc215464976 \h 201.Who may issue PAGEREF _Toc215464977 \h 202.Affidavit PAGEREF _Toc215464978 \h 203.Requirement of particular description PAGEREF _Toc215464979 \h 204.Execution of warrants PAGEREF _Toc215464980 \h 215.“Good faith” exception PAGEREF _Toc215464981 \h 21II.Warrantless Arrests and Searches PAGEREF _Toc215464982 \h 21A.Warrantless Arrests PAGEREF _Toc215464983 \h 211.Constitutional requirement PAGEREF _Toc215464984 \h 21B.Search Incident to Arrest - Chimel PAGEREF _Toc215464985 \h 231.Chimel rule PAGEREF _Toc215464986 \h 232.Distance and time limits on search under Chimel PAGEREF _Toc215464987 \h 243.Automobile searches incident to arrest PAGEREF _Toc215464988 \h 244.Protective sweeps PAGEREF _Toc215464989 \h 265.Destruction of evidence PAGEREF _Toc215464990 \h 276.Contemporaneity of search PAGEREF _Toc215464991 \h 277.Legality of arrest PAGEREF _Toc215464992 \h 288.Arrest on probable cause but in violation of state law PAGEREF _Toc215464993 \h 289.Pretextual arrests PAGEREF _Toc215464994 \h 28C.Exigent Circumstances PAGEREF _Toc215464995 \h 291.Exigent circumstances generally PAGEREF _Toc215464996 \h 292.Destruction of evidence PAGEREF _Toc215464997 \h 293.Need for fast action PAGEREF _Toc215464998 \h 294.Hot pursuit PAGEREF _Toc215464999 \h 315.Entry to arrest non-resident PAGEREF _Toc215465000 \h 316.Search of scene of murder PAGEREF _Toc215465001 \h 32D.The “Plain View” Doctrine and Seizures of Evidence PAGEREF _Toc215465002 \h 321.General applicability PAGEREF _Toc215465003 \h 322.Requirements of doctrine PAGEREF _Toc215465004 \h 323.No requirement for inadvertence PAGEREF _Toc215465005 \h 334.Plain View and Computer Searches PAGEREF _Toc215465006 \h 34E.Automobile Searches PAGEREF _Toc215465007 \h 351.Relation of car searches to other searches PAGEREF _Toc215465008 \h 352.Search at station after arrest PAGEREF _Toc215465009 \h 363.Search at place where vehicle is stopped PAGEREF _Toc215465010 \h 364.Use of pretext to make stop PAGEREF _Toc215465011 \h 365.Traffic tickets PAGEREF _Toc215465012 \h 366.Extended to closed containers PAGEREF _Toc215465013 \h 377.Probable cause for container only PAGEREF _Toc215465014 \h 388.Search for vehicle identification number PAGEREF _Toc215465015 \h 389.Impoundment search where no probable cause PAGEREF _Toc215465016 \h 3810.Actions directed at passengers PAGEREF _Toc215465017 \h 3811.Traffic stop followed by ticket PAGEREF _Toc215465018 \h 39F.Consent Searches Generally PAGEREF _Toc215465019 \h 391.Importance of probable cause PAGEREF _Toc215465020 \h 392.Claims of authority to search PAGEREF _Toc215465021 \h 403.Other kinds of deception PAGEREF _Toc215465022 \h 404.Physical scope of search PAGEREF _Toc215465023 \h 415.Second search PAGEREF _Toc215465024 \h 41G.Consent by Third Persons PAGEREF _Toc215465025 \h 411.Joint authority PAGEREF _Toc215465026 \h 412.Husband, wives, and lovers PAGEREF _Toc215465027 \h 423.Parents and children PAGEREF _Toc215465028 \h 434.Landlord, tenants, and co-tenants PAGEREF _Toc215465029 \h 435.Tenants with varying property interests PAGEREF _Toc215465030 \h 436.Employers and employees PAGEREF _Toc215465031 \h 447.Bailors and bailees PAGEREF _Toc215465032 \h 44H.“Stop-and-Frisk” and Other Brief Detentions PAGEREF _Toc215465033 \h 441.Degree of probability required for stop PAGEREF _Toc215465034 \h 462.What constitutes a “stop”? PAGEREF _Toc215465035 \h 473.“Stop” v. arrest PAGEREF _Toc215465036 \h 494.Frisk permissible under Terry PAGEREF _Toc215465037 \h 515.Search of automobile PAGEREF _Toc215465038 \h 516.Brief detention at the station PAGEREF _Toc215465039 \h 527.Detention during house search PAGEREF _Toc215465040 \h 538.Investigation of completed felony PAGEREF _Toc215465041 \h 539.Detention of property PAGEREF _Toc215465042 \h 5310.Summary PAGEREF _Toc215465043 \h 54I.Inspections and Regulatory Searches PAGEREF _Toc215465044 \h 54III.The Exclusionary Rule PAGEREF _Toc215465045 \h 54A.Purpose and Function of Exclusionary Rule PAGEREF _Toc215465046 \h 541.Violation of regulation but not Constitution PAGEREF _Toc215465047 \h 55B.Standing to Assert the Exclusionary Rule – MAKE SURE TO KNOW STANDING!!! PAGEREF _Toc215465048 \h 551.General standing issue PAGEREF _Toc215465049 \h 552.Confession cases PAGEREF _Toc215465050 \h 553.Search and seizure cases PAGEREF _Toc215465051 \h 55C.Exceptions to the exclusionary rule PAGEREF _Toc215465052 \h 591.Silverthorne PAGEREF _Toc215465053 \h 592.Independent source exception PAGEREF _Toc215465054 \h 593.Inevitable discovery PAGEREF _Toc215465055 \h 604.The “purged taint” exception in general PAGEREF _Toc215465056 \h 615.Wong Sun PAGEREF _Toc215465057 \h 616.Illegality leading the police to focus on a particular suspect PAGEREF _Toc215465058 \h 637.Leads to different crime PAGEREF _Toc215465059 \h 638.Confessions as tainted fruit PAGEREF _Toc215465060 \h 639.Confession as a “poisonous tree” PAGEREF _Toc215465061 \h 6410.The “good faith warrant” exception PAGEREF _Toc215465062 \h 6411.Exception for “knock and announce” violations PAGEREF _Toc215465063 \h 66Fifth Amendment PAGEREF _Toc215465064 \h 67IV.Lineups and Pre-trial Identification Procedures PAGEREF _Toc215465065 \h 67A.Identification Procedures Generally PAGEREF _Toc215465066 \h 671.Various identification procedures PAGEREF _Toc215465067 \h 67B.Due Process Limitations PAGEREF _Toc215465068 \h 671.Unnecessarily suggestive inadmissible PAGEREF _Toc215465069 \h 672.Suggestive identification admissible if reliable PAGEREF _Toc215465070 \h 683.Use of photos PAGEREF _Toc215465071 \h 68V.Due Process – Confessions PAGEREF _Toc215465072 \h 69A.Involuntary confessions PAGEREF _Toc215465073 \h 701.Mentally ill defendant PAGEREF _Toc215465074 \h 70VI.Due Process – The Privilege Against Self-Incrimination PAGEREF _Toc215465075 \h 71A.Extension of Schmerber PAGEREF _Toc215465076 \h 71B.Refusal to cooperate in identification procedure PAGEREF _Toc215465077 \h 71C.Testimonial evidence PAGEREF _Toc215465078 \h 72D.Miranda warnings PAGEREF _Toc215465079 \h 731.Holdings of Miranda PAGEREF _Toc215465080 \h 732.Custodial questioning only PAGEREF _Toc215465081 \h 743.May be exercised at any time PAGEREF _Toc215465082 \h 744.Waiver PAGEREF _Toc215465083 \h 745.Right to counsel PAGEREF _Toc215465084 \h 746.Inadmissibility PAGEREF _Toc215465085 \h 75E.What is a “custodial” interrogation? PAGEREF _Toc215465086 \h 761.Language of Miranda PAGEREF _Toc215465087 \h 762.Objective “reasonable suspect” test PAGEREF _Toc215465088 \h 763.Place of interrogation PAGEREF _Toc215465089 \h 76F.What constitutes interrogation PAGEREF _Toc215465090 \h 781.Volunteered statements PAGEREF _Toc215465091 \h 782.Identification questions PAGEREF _Toc215465092 \h 793.Questions by non-police PAGEREF _Toc215465093 \h 79G.The “public safety” exception PAGEREF _Toc215465094 \h 791.Objective standard PAGEREF _Toc215465095 \h 79H.Warnings required under Miranda PAGEREF _Toc215465096 \h 801.Adequacy of warnings PAGEREF _Toc215465097 \h 802.Where police think suspect aware of rights PAGEREF _Toc215465098 \h 80I.What constitutes a valid waiver of Miranda rights? PAGEREF _Toc215465099 \h 801.Express waiver PAGEREF _Toc215465100 \h 812.Implied waiver PAGEREF _Toc215465101 \h petency of suspect PAGEREF _Toc215465102 \h 81J.Multiple Interrogations PAGEREF _Toc215465103 \h 811.Where rights invoked in first session PAGEREF _Toc215465104 \h 812.Where lawyer requested during first session PAGEREF _Toc215465105 \h 823.Request must be unambiguous PAGEREF _Toc215465106 \h 83K.Evidence from non-Mirandized confessions not fruit of the poisonous tree PAGEREF _Toc215465107 \h 84L.Can second confession be fruit of the poisonous tree? PAGEREF _Toc215465108 \h 84Sixth Amendment PAGEREF _Toc215465109 \h 85VII.The Right to Counsel PAGEREF _Toc215465110 \h 85A.Fruit of the poisonous tree and the 6th Amendment right to counsel PAGEREF _Toc215465111 \h 86B.Charge specific PAGEREF _Toc215465112 \h 86C.Jailhouse informants PAGEREF _Toc215465113 \h 87VIII.Waiver of the Right to Counsel PAGEREF _Toc215465114 \h 88A.Standards PAGEREF _Toc215465115 \h 881.Totality of the circumstances test PAGEREF _Toc215465116 \h 882.Police Coercion required PAGEREF _Toc215465117 \h 883.Miranda warnings suffice PAGEREF _Toc215465118 \h 88B.Waiver after pre-trial appointment of counsel PAGEREF _Toc215465119 \h 89C.Significance PAGEREF _Toc215465120 \h 891.Suspect not in custody PAGEREF _Toc215465121 \h 89Fourth AmendmentArrest; Probable Cause; Search WarrantsThe Fourth Amendment applies to both situations in which a warrant is used, and to those in which no warrant is procured. If a warrant is used, the Fourth Amendment requires that it not be issued unless there is “probable cause”; whether or not there is a warrant, the Fourth Amendment requires that the arrest or search not be “unreasonable.”The Fourth Amendment guarantees “the right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures….”What is a “search” (or a “seizure”)?Evidentiary searches and seizures are covered by the Fourth Amendment, which prohibits the government from conducting unreasonable searches (intrusions upon a person’s privacy) and seizures (control by the government over a person or thing). Reasonableness here usually requires that a warrant be obtained before a search is commenced; however, there are exceptions.Scope of items subject to search and seizureThe instrumentalities of crime (such as burglar’s tools);The fruits of crime (such as stolen goods); Contraband (such as illegal drugs); and The mere evidence of crime, as long as probable cause exists to believe that the item is connected to criminal activity (such as suspect’s bloodstained clothing).Government conduct requirementThe Fourth Amendment protects only against government conduct – not against searches by private persons. Government agents include:Publicly paid policePrivate persons acting at police directionPrivately paid police (e.g., security guards) who are deputized members of the public police forcePublic school officialsOlmstead v. United States (US 1928) – overturned by KatzThe Court held that the wiretap was not a trespass and did not violate the Fourth Amendment. A wiretap was placed on the telephone wires outside of the defendant’s house because there was no physical trespass and it was not intercepting a tangible “thing.”Katz v. United States (US 1967)The Court held that the Fourth Amendment protects people, not places and that a search falls within the protections of the Fourth Amendment when government action intrudes into an area where a person has a reasonable and justifiable expectation of privacy.FBI agents placed electronic eavesdropping equipment on the outside of a public telephone booth from which Katz conducted illegal gambling calls.There is no reasonable and justifiable expectation of privacy in things held out to the public, so searches of items held out to the public are not within the scope of the Fourth Amendment protection. The Court also limited the scope of Fourth Amendment protection by requiring standing – i.e., only a person with an expectation of privacy in the place searched or the item seized may challenge the search.Note: there are two main forms of electronic surveillance – wiretapping and bugging. Both normally constitute Fourth Amendment searches (therefore it requires a warrant). However, the use of an undercover agent or undercover informant does not pose Fourth Amendment issues; therefore, no PC is required.Reasonable Expectation of PrivacyStandingTo have standing to challenge a search under the Fourth Amendment, a person must have a reasonable expectation of privacy. Whether a person has standing is determined on a case-by-case basis, assessing the claimant’s reasonable expectation of privacy under the totality of the circumstances. The Supreme Court has held that a person has standing to raise a Fourth Amendment claim any time:The person owned or had a right to possession of the place searched;The place searched was in fact the person’s home whether or not the person owned or had a right to possession of it (e.g., a grandson living in the house owned by his grandmother); orThe person was an overnight guest of the owner or otherwise had a genuine privacy interest in the place searched.“Legitimately” on premises alone – insufficientIt is not enough for standing merely that a person was harmed through introduction of evidence obtained from an allegedly unconstitutional search of a third person’s property.Application to automobilesAnyone who is in an automobile that is stopped unconstitutionally may challenge the stop. However, if an automobile is constitutionally stopped, a passenger in the automobile may not challenge a search of the automobile merely because the passenger was legitimately within the automobile.Rakas v. Illinois (US 1978)Police pulled driver’s car over on probable cause to believe that it was involved in a robbery. Upon searching the car, the police found a sawed-off shotgun and some shells. None of the passengers in driver’s car claimed ownership of the gun or shells. The Court held the passengers may not challenge the search of the car because none have a legitimate expectation of privacy with respect to the car’s interior when the stop was valid.Rakas holds that if the stop was valid, the passenger had no REOP that was violated in a search of the carConspirator – no automatic standingThat a conspirator may be aggrieved by the introduction of damaging evidence seized from a co-conspirator does not give the conspirator automatic standing to challenge the seizure of the evidence; the conspirator must show that his own expectation of privacy was violated.Contraband – no legitimate privacy interest and no standingGovernmental intrusions that only reveal possession of controlled substances (e.g., “sniff tests” by trained narcotics detection dogs, or cocaine field tests) do not invade any legitimate interest in privacy; therefore, the defendant has no standing to assert a Fourth Amendment violation.Items held out to the publicGenerallyA person does not have a reasonable expectation of privacy in objects held out to the public. Examples of items held out to the public include:A person’s handwriting (United States v. Mara),The sound of a person’s voice (United States v. Dionsio),Telephone numbers dialed – “pen registers” (Smith v. Maryland)Although a telephone conversation itself is statutorily protected by Title III Bank records (Fisher v. United States),Paint on the outside of a car (United States v. Knotts),Magazines offered for sale (Maryland v. Macon),The smell of one’s luggage or automobile (i.e., a sniff test by a drug-sniffing dog is not a search) (United States v. Place & Illinois v. Caballes)However: an officer’s physical manipulation of a bus passenger’s carry-on luggage positioned in an overhead storage space intrudes on the passenger’s reasonable expectation of privacy because the passenger expects that other passengers and bus employees may move the bag but not “feel the bag in an exploratory manner.” (Bond v. United States)Open fields doctrineUnder the “open fields doctrine,” areas outside the curtilage (i.e., dwelling house and nearby outbuildings) are held out to the public and are subject to police search without violating the Fourth Amendment. Thus, plants growing in an open field may be searched (United States v. Oliver). Similarly, garbage left for collection outside the curtilage may be searched (California v. Greenwood).OutbuildingsNot all outbuildings are within the curtilage. The Court has stated that it will consider four factors in determining whether an outbuilding is curtilage:Proximity of the home to the area claimed to be curtilage,Whether the area is included in an enclosure that surrounds the home,The nature of the uses to which the area is put, andThe steps taken by the resident to protect the area from observation.The ultimate question is whether the outbuilding in question is “so intimately tied to the home” that it should warrant Fourth Amendment protection (United States v. Dunn).United States v. Dunn (US 1987)A barn was held not to be within the curtilage of a home because it was 60 yards from the home and 50 yards outside the fence surrounding the home.The barn was used to manufacture drugs rather than to carry on intimate activities of the home, and it was protected only by low fences designed to corral livestock rather than to prevent viewing.FlyoversFlyovers are treated differently from physical invasions of the curtilage. The rule is that police may observe from the air, so long as they are in airspace where the general public is legitimately allowed to fly.Rationale: there can be no legitimate expectation of privacy in things that may be observed by the public while flying in public airspace.Example: based on a tip that defendant was growing marijuana in his backyard, police rented a plane and flew 1,000 feet over defendant’s house (within navigable airspace). They observed and photographed the marijuana, and the search was upheld despite the fact that defendant tried to protect his backyard from view by erecting a 10-foot fence around it (California v. Ciraolo).Example: similarly, the Court upheld a 400-foot flyover by a helicopter, where police observed marijuana growing in defendant’s greenhouse, despite the fact that defendant had taken steps to obscure the aerial view by partially covering the roof. The helicopter was in legitimate airspace (Florida v. Riley) – note that different aircrafts may have different standards.Vision enhancing camerasThe Court will even allow the use of powerful cameras to take photographs from the air, at least as long as the cameras are generally available to the public and the plane is in navigable airspace (Dow Chemical v. United States).Distinguish – technologically enhanced searches of the homePolice may not use high tech gear not available to the general public to invade the privacy of one’s home (whether they can do so at a business has not been decided but businesses do not have the “sanctity of the home” so it may be allowed) (Kyllo v. US - infra).ContrabandA person does not have a legitimate expectation of privacy in contraband. Therefore, there is no unconstitutional search when contraband in luggage is sniffed out by a narcotics detection dog (United States v. Place).United States v. Place (US – 1983)Submitting luggage to a sniff test does not constitute a search because unlike a typical “search,” general contents of the container are not disclosed to police; however warrantless detention of luggage for an unreasonable time (~90 minutes) before being submitted to the sniff test rendered seizure invalid.Dog sniffs at traffic stopsAs long as police have constitutionally stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incidental to such a stop, a dog sniff of the car is not a search. Illinois v. Caballes (US 2005)The Fourth Amendment was not violated when, during a routine traffic stop, a police officer walked a narcotics detection dog around the defendant’s car and the dog alerted the presence of drugs, even though before the dog alerted, the officer did not have a reasonable and articulable suspicion that would justify a search.Electronic SurveillanceAny form of electronic surveillance, including wiretapping, that violates a reasonable expectation of privacy constitutes a search; actual physical trespass is not required for a search (Katz v. United States).Warrants requirementsTo be constitutionally valid, a warrant authorizing any form of electronic surveillance, including wiretapping, must satisfy the following requirements:The warrant must describe with particularity the conversations to be overheard;A showing of probable cause to believe that a specific crime has been or is being committed must be made;The wiretapping must be for a limited period of time;The suspects whose conversations are to be overheard must be named;A return must be made to the court, showing what conversations were intercepted; andThe wiretapping must terminate when the desired information has been obtained.“Shared information” – pen registersPen registers record the numbers dialed from a particular telephone. Smith v. Maryland (US – 1979)The Court held that the Fourth Amendment does not require prior judicial approval for installations and use of pen registers. However, by statute [18 USC §3121], police must obtain a court order finding pen register information to be relevant to an ongoing investigation before using a pen register. Note: information obtained in violation of the statute will not necessarily be excluded from evidence in a criminal trial; the statute merely provides for a criminal penalty.“Uninvited ear” exceptionThe defendant may not argue that his Fourth Amendment rights have been violated if he did not attempt to keep his communications private (Katz v. United States). This applies to conversations conducted in a reckless fashion with disregard for whomever might be listening. Example: D makes several incriminating statements while using a public telephone. Several persons overheard these remarks, because D was speaking loudly and made no attempt to keep his conversation private. D may not object to the use of the statements against him, because he did not attempt to safeguard his conversation from others nearby.False friends - “unreliable ear” exceptionUnited States v. White (US 1971)The Court held that the defendant assumes the risk that the person with whom he is speaking is “unreliable” – i.e., will consent to the government monitoring their conversation. If the person turns out to be a police informer who is wired for sound or taping, the defendant may not object to the transmitting or recording as being a warrantless search in violation of the Fourth Amendment.The “Plain View” DoctrinePlain view doctrine generallyWhere objects of private property can be seen from public places, observation by the police does not constitute a Fourth Amendment search. The test is simple:The officer must not have violated the 4th Amendment is arriving at the place from which the evidence could be plainly viewed;The incriminating character of the evidence must be immediately apparent; and The officer must have a lawful right of access to the object itself.Effect of KatzExample: A policeman standing on a public right-of-way looks into defendant’s window, and sees and hears criminal activity. Because the defendant should have expected that people standing on the street could see inside, he had no reasonable expectation of privacy, and no Fourth Amendment search occurred.Here, the officer would be required to obtain a warrant in order to enter (unless permission was given), unless exigent circumstances existed.Warrantless seizure of evidenceDistinguish between observation of an object in “plain view” and seizure of that object. Mere observation of an object is in “plain view” will never constitute a Fourth Amendment “search.” But the fact that an object, say contraband or evidence of a crime, is in “plain view” does not automatically give the police the right to seize that object without a warrant.For seizure to be proper, there must either be a generally-applicable warrant in force, or some exception to the warrant requirement, when seizure of an object is concerned. The plain view doctrine can be thought of as “an extension of whatever prior justification for an officer’s access to an object may be.”Search with warrant (or exception to warrant requirement)Where the police have obtained a valid search warrant describing particular items, and during the course of their search they discover an object which is not covered by the warrant, but which is obviously contraband or evidence of a crime, they may seize that object without getting a new warrant specially covering it. Similarly, if the police are already on private premises pursuant to some exception to the warrant requirement (e.g., exigent circumstances), they may seize contraband or incriminating evidence.No entry without warrantBut if the police, while standing on public property, see in “plain view” an object on private property, this does not entitle them to enter the private property and seize it.Use of mechanical devices generallyWhere police stand on public property, but use mechanical devices to obtain the view of defendant or his property, the “plain view” doctrine will often nonetheless apply.Available to general publicRULE: If the general public has the ability to obtain and use the mechanical device, the plain view doctrine will apply to the observations using it. However, if the device is not available to the general public, the observations will not fall under the plain view doctrine and a search in violation of the suspect’s Fourth Amendment rights will have occurred. Example: The use of a flashlight by a policeman at night does not prevent an observation from falling within the plain view doctrine. Similarly, binoculars have been held to be OK for use according to the plain view doctrine.Electronic beeperWhen the gov’t uses sophisticated devices (e.g., tracking beeper), the court upholds the use if two conditions are met:The view takes place from a location where the police have a right to be (e.g., public property); and The information obtained could have been gotten from “plain view” surveillance executed without the special device.When the police desire to trail a vehicle, they sometimes put such a “beeper” on the vehicle (US v. Knotts). The Court in Knotts held that the use of such a beeper to follow a vehicle on public roads does not violate the driver’s reasonable expectation of privacy.Mechanical devices “not in general public use”Thermal imagerRULE: Police may not use high tech gear (e.g., thermal imager) not available to the general public to invade the privacy of one’s home (whether they can do so at a business has not been decided but businesses do not have the “sanctity of the home” so it may be allowed).The Court has held that because of the strong expectation of privacy within one’s home, obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the technology in question is not in general public use (Kyllo v. United States). Kyllo v. United StatesThe use of thermal imager on defendant’s home to detect the presence of high intensity lamps commonly used to grow marijuana constitutes a search.Test There is a bright-line rule which clearly specifies high-tech devices not available to the general public require a warrant.Limitations on the new ruleThe rule applies only to information “regarding the interior of the home.” Therefore, the Court may well give less protection where sense-enhancing technology is used in a non-residential context, such as in the workplace or in public spaces like airports and train stations.Resident or ownerBecause of the court’s rules on standing, the new rule probably applies only where the device is used against a resident or owner or the home in question.For instance, if the police point the device at A’s home, and discover evidence implicating B, a friend of A who does not live at the house, the evidence can presumably be used against B even though not against A.Contorted positionsThe fact that the police officer who obtains the “plain view” does so from a contorted or otherwise unusual position does not prevent the “plain view” doctrine from applying, assuming that the policeman was in a place where he has a prior right to be (e.g., public property).Aerial observationAs long as the aircraft is in public, navigable, airspace, anything the police can see with the naked eye or any technology available to the general public from that airspace falls with the plain view doctrine.California v. Ciraolo (US - 1986)Police got a tip that D was growing marijuana in his backyard. They rented a private plane, flew over his house at an altitude within navigable airspace, spotted marijuana plants growing in the backyard, and photographed them. Even though D had placed a 10-foot wall around his backyard, thus clearly showing intent to shield it from passers-by, the flyover did not violate any expectation of privacy that society is prepared to honor.The mere fact that some measures were taken to show an intent to shield the space does not preclude an officer’s observations from a public vantage point where he has a right to be.Florida v. Riley (US – 1989)The Court held that the view from a helicopter flying only 400-feet above the ground still fell within the plain view doctrine, and was therefore not a search.As long as the aircraft is flying where a member of the public could fly that aircraft, no search will ever take place because the homeowner would have no reasonable expectation of being free from such flyovers.Use of other sensesThe plain view doctrine can apply where items are discovered through the use of senses other than sight (e.g., touch, hearing or smell). If an officer who is in a place where he has a right to be can discover the probable existence of contraband, evidence of crime, etc. through one of these other senses, the plain view doctrine applies, permitting the immediate seizure of the item.“Plain touch”Minnesota v. Dickerson (US – 1993)The Court applied the plain view doctrine by analogy and held that where an officer is conducting a frisk or pat-down pursuant to Terry, the officer may seize any object which his sense of touch gives him probable cause to believe is contraband, a weapon, or some other form of evidence.However, an officer may not manipulate the object to determine whether it is contraband, a weapon or some other form of evidence Must have right to do the touchingThe “plain touch” corollary to plain view will apply only if the officer in fact had the right to do the touching or feeling in the first place. If the officer’s act of touching was itself a violation of the person’s reasonable expectation of privacy, then the officer is not entitled to use what he has learned from the touching as the basis for probable cause to continue the search. Furthermore, seizure of the object would be “fruit from the poisonous tree.”Bond v. United States (US – 2000)An officer’s physical manipulation of a bus passenger’s carry-on luggage positioned in an overhead storage space intrudes on the passenger’s reasonable expectation of privacy because the passenger expects that other passengers and bus employees may move the bag but not “feel the bag in an exploratory manner.” “Plain odor”The Court implicitly indicated that the plain view doctrine may apply to smell.Canine sniff testIllinois v. Caballes (US – 2005)The Court held that since D’s car was properly stopped for a traffic violation, the use of a dog sniff around the exterior of his car for contraband did not amount to a Fourth Amendment intrusion (and thus could legally occur even in the absence of any suspicion of drug activity).Odor tests generallyRULE: A police dog may be used to perform an odor test that merely determines whether contraband is present or not and no search will have taken place because no information about a legally-possessable substance is being revealed.However, consider the more general question – whether the gov’t may rely on a “plain odor” doctrine to run canine sniff tests in public places to find the existence of substances that may be legally possessed. For example, supposed a legal substance, with an obvious odor, was known to often be used by terrorists to create explosives. If the gov’t were to run canine sniff tests for such substance on cars stopped for traffic violations or parked in public parking lots – it is not clear whether the use of the dogs to detect the telltale odor would constitute a Fourth Amendment search.Plain view where police on defendant’s propertyThe plain view doctrine also applies where the police are lawfully on the owner’s property. Thus where the police come to a person’s house to lawfully arrest him, any observation they make while in the process of arresting him does not constitute a Fourth Amendment search.However, if a package or container is in plain view, its contents cannot normally be inspected under the plain view doctrine.Inspection of contents of container in carIf a closed container is found during a valid warrantless search of an automobile, it may usually be opened and its contents searched. This is not done pursuant to the “plain view” doctrine but rather as an extension of the automobile-search exception to the warrant requirement (see US v. Ross).Probable Cause GenerallyApplicability of probable causeThe Fourth Amendment provides that no warrant, whether for search or arrest, be issued unless there is “probable cause.” This means that the law enforcement officials in question must have trustworthy evidence that would make a reasonable person think it more likely than not that the proposed arrest or search is justified.Also required in warrantless casesThe Fourth Amendment does not explicitly require the existence of probable cause prior to a warrantless arrest or search, case law does. Otherwise, it would seem that warrantless arrests or searches would be less stringent; therefore, defeating the purpose of our policy encouraging warrants.Basic requirements for probable cause(a). Probable cause to arrestFor probable cause to arrest a person to exist, two conclusions must be justified by substantial, trustworthy evidence:That a violation of the law has been committed; andThat the person to be arrested committed the violation.(b). Probable cause to searchFor there to be probable cause to search particular premises, two conclusions must be supported by evidence:That the specific items to be searched for are connected with criminal activity; andThat these items will be found in the place to be searched.Note: A given state of evidence might establish probable cause for arrest but not for search, or vice versa. For example: the police might have reliable evidence that a particular individual had committed a certain crime, but no reason at all to believe that evidence of the crime could be discovered at the suspect’s home. There would, in this situation, be probable cause for arrest but not for search.No admissibility limitationAny trustworthy information may be considered in determining whether probable cause to search or arrest exists, even if the information would not be admissible at trial. Note: the police may use hearsay as part of their showing of probable cause, or even a prior criminal record of the suspect. The reliability of the information will depend in part on its source but the magistrate may consider any evidence, no matter where it came from, in making his decision on probable cause. Only evidence heard by magistrate usedProbable cause for the issuance of a warrant must be judged only by reference to the facts presented to the magistrate who is to issue the warrant. Thus if the police do not present to the magistrate evidence sufficient to establish probable cause, but the warrant is issued anyway and is later challenged in a suppression hearing, the warrant cannot be retroactively validated by police testimony that they had other facts not presented to the magistrate. Facts as reasonably believed by policeA warrant will not be rendered invalid if it later turns out that the police erroneously (but reasonably and honestly) believed the information they gave to the magistrate.Maryland v. Garrison (US – 1987)Police obtained search warrant for “third floor apt” of apt building believing it contained 1 apt belonging to M when it actually contained 2 (M and G). Police searched wrong apt (G’s) and found evidence of drug crimes.The Court held the warrant valid even though, based on the eventual facts, the warrant was overbroad in authorizing the search of the entire floor. 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 disclose, to the issuing magistrate. The police officer had scoped out the building and checked with the utility companies and received notification that the only name on the floor was M’s.Rule: (1) Did the officer reasonably discover and disclose the necessary information to justify a warrant? (2) Did the magistrate, given the information and the totality of the circumstances, reasonably authorize the warrant? “Boiler plate” language in warrantPeople v. Balint (Cal. App. – 2006)Police seized an open laptop in living room under the terms “any items tending to show dominion and control,” pursuant to a valid warrant of apt (laptop not specifically enumerated or listed in items demonstrating dominion and control). Laptop was found to be stolen.Test: in determining whether seizure of particular items exceeds the scope of the warrant, courts examine whether the items “are similar to, or the functional equivalent of, items enumerated in the warrant, as well as containers in which they are reasonably liked to be found.”The court held that the laptop amounts to an electronic container capable of storing data similar to kind to the documents stored in an ordinary filing cabinet and thus potentially within the scope of the warrant.Particular Information Establishing Probable CauseEvidence from officer’s own observationSome kinds of evidence which a police officer might acquire first-hand and which could contribute to probable cause are:The flight of a suspect when approached by the policeman;Physical clues (e.g., footprints or fingerprints linked to a particular person);Voluntary admissions by a suspect;Suspicious or surreptitious conduct;A suspect’s previous criminal record (not on its own);A suspect’s presence in a high-crime rmation from informantsThe Court has decided that the issue of whether an informant’s information creates probable cause for a search or arrest is to be determined by the “totality of the circumstances.”So long as a neutral magistrate can reasonably determine that, based on the informant’s information and all other available facts, there is probable cause to believe that a search or arrest is justified, he may issue the warrant.Illinois v. Gates (US – 1983)Police received an anonymous letter stating that a couple, S and L living in Bloomington, were drug dealers, that S would drive to Florida on May 3, and that L would fly down shortly thereafter, and drive the car back with $100,000 worth of drugs in the trunk. Police confirmed L lived in Bloomington and had bought a plane ticket to FL on May 5.Police followed him to a hotel reserved in S’s name and saw S and L drive north the next day in L’s car. The police obtained a warrant on these facts and searched the car and house when S and L arrived – drugs were found. The Court held, based on a totality of the circumstances, there was probable cause for issuance of the search warrant.CorroborationCorroboration aspects of the informant’s story may be combined with the story itself, in determining whether there is probable cause. This is especially likely where: (1) the informant’s identity is not known to the police; and (2) the corroboration is of the future actions of third parties that are not easily predicted.Non-criminal acts may nonetheless justify suspicion of criminal activity.Suspect’s criminal reputationA suspect’s reputation for past criminal activity may be considered in determining probable cause, if supporting facts indicating past criminality are also present.US v. Harris (US – 1971)The case involved the existence of PC for a search of the premises of a suspect thought to be running an illegal still. The affidavit supporting the request for a search warrant included that that “[The suspect] has had a reputation with me for over four years as being a trafficker of non-tax-paid distilled spirits, and over this period I have received numerous information from all types of persons as to his activities.”The affidavit also stated that a colleague of the affiant officer had located a sizeable stash of illicit whiskey in the suspect’s control, and the informant himself had purchased illegal whiskey from the suspect.The Court allowed the consideration of a suspect’s criminal reputation but held that while a suspect’s reputation can be considered it can never be itself enough to establish PC.Search Warrants – Issuance and ExecutionWho may issueA search warrant is a document authorizing a law enforcement official to make a search, and is issued by a “judicial officer “ or “magistrate.”The magistrate must be a neutral party detached from the law enforcement side of gov’t.AffidavitIn virtually all jurisdictions, the police officer seeking a search warrant must put the facts establishing probable cause into a written, signed, affidavit.Requirement of particular descriptionThe Fourth Amendment requires that a warrant contain a particular description of the premises to be searched, and the things to be seized. This means that the warrant must be specific enough that an officer executing it, even if he had no initial connection with the case, would know where to search and what items to seize.Place to be searchedWhere the search is to be of an apartment building or other multi-family dwelling, the warrant must contain the name of the occupant or the number of the particular apartment, so that other inhabitants of the structure will not be needlessly searched.Execution of warrantsMost jurisdictions, including the federal system, have statutes prescribing the manner in which search warrants are to be executed. In addition, case law indicates in a general way, the procedures that must be followed for the search not to be an “unreasonable” one.“Good faith” exceptionNormally if a search warrant is invalid for any reason, any search done pursuant to it will be unconstitutional. Furthermore, the exclusionary rule will generally be applicable, so that the evidence so seized may not be introduced at the trial of the person whose Fourth Amendment rights were violated by the search. However, the Court has held that if the police reasonably believe that the warrant which they have been issued is valid, the exclusionary rule will not apply to bar the items seized from being introduced at the trial of the person whose rights were violated by the search.US v. Leon (US – 1984) - infraThe Court held that the prosecution may introduce evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.Warrantless Arrests and SearchesWarrantless ArrestsConstitutional requirement(a). Dwelling entryNon-exigent circumstancesIf there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest.Payton v. New York (US – 1980)The police had probable cause to believe Payton committed murder 2 days earlier and broke into his apt to arrest him without a warrant. Payton was not home but in plain view was a .30 caliber shell casing that was seized and admitted into evidence at Payton’s murder trial (although the plain view doctrine would normally allow for such seizure, the police had no right to be in the apt of Payton in the first place).The court held the casing should not be admitted and that absent exigent circumstances. RULE: police may not enter the house without a warrant – unless exigent circumstances exist.Exigent circumstancesIf there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain a warrant, no warrant is necessary, assuming that the crime is a serious one.For instance, if the police have reasonable cause to believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, exigent circumstances exist.Also, if the police are pursuing a felony suspect, and he runs into either his own or another’s dwelling, a warrantless entry may be permitted under the “hot pursuit” doctrine.(b). Minor crimesAn officer may make a full custodial warrantless arrest for any traffic violation or other minor misdemeanor committed in the officer’s presence. Note that State law may prohibit this, resulting in a civil suit against the officer, but as long as there is some crime, an arrest will not rise to a violation of the Constitution.Whren v. US (US 1996)A pretextual stop-and-search in valid, if there really was some violation.Example: Suppose an officer has a belief, not based on facts, that many young black males driving expensive cars are drug dealers. Officer spots X, a 22 year-old black male, driving a Benz. X switches lanes without using a turning signal – punishable by a $25 fine. He pulls over and arrests X. Officer then conducts a full-scale search of the car’s interior, incident to the valid arrest. Officer finds marijuana, X cannot be convicted of drug possession, because a SITA of the passenger compartment requires either (1) passenger have access to the area at the time of the search or (2) Officer have reasonable belief that evidence of the crime for which X was arrested will be found in the passenger compartment. (c). Probable cause need not be for offense stated at time of arrestNote that if at the time of the warrantless arrest the officer specifies to the suspect the arrest is for offense1 and it turns to there was no PC for offense1 but there was PC for offense2, the arrest is still valid.As long as there is PC for some offense, the arrest is valid.Search Incident to Arrest - ChimelChimel ruleIn 1969, the Court restricted the scope of the search incident to arrest. Chimel did not reduce the number of situations in which a search incident to arrest could be conducted, it drastically restricted the physical area in which the search could be performed.Chimel v. California (US – 1969)Police officers came to the home of the Chimel, who was suspected of having robbed a coin shop. The police had an arrest warrant but no search warrant. After arresting Chimel, the police conducted a full-scale search of Chimel’s 3-bedroom house and discovered some of the stolen coins. During the entire search-and-arrest, the defendant’s wife was present.The Court found the search to have been invalid, because it was unnecessarily widespread. The Court recognized the police’s right to search the area within the defendant’s immediate control, but held that the portion of the premises outside of that control could not be warrantlessly searched incident to arrest.RationaleThe Court stated when an arrest is made it is reasonable for the arresting officer to the search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. It is also entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.The area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous as a weapon concealed on the arrested.Rule: Due to the above, there is justification for a search of the arrestee’s person and the area “within his immediate control.” The Court construed “within his immediate control” to mean the area from within which he might gain possession of a weapon or destructible evidence.Therefore, a search of rooms other than that in which an arrest occurs – or searching through all the desk drawers or other closed or concealed, or locked areas in that room itself is not justified.Distance and time limits on search under ChimelThe Court has never given much guidance about how wide an area will be deemed within the arrestee’s immediate control and thus subject to search incident to arrest. Nor has the Court given much help on how long after the arrest the search can take place.Cannot be “remote in time or place”In US v. Chadwick, the Court stated that there must be some real possibility that the suspect can reach the area being searched.US v. Chadwick (US - 1977)The police arrested several suspected smugglers, and seized the footlocker in which they where thought to be transporting marijuana. After the suspects were safely jailed, the officers opened and searched the footlocker without a warrant. The Court held the search invalid, saying that a search is not incident to arrest if it is “remote in time or place from the arrest.”Different roomIt’s probably safe to assume that the arrestee does not have “immediate control” of items that are in a different room than where the arrestee is being held.Substantial area within same roomMany post-Chimel lower-court cases have held that the defendant, even after his arrest, maintains immediate control over a substantial area within the same room where he is being held, even if he is handcuffed and/or numerous officers surround him.Automobile searches incident to arrestThe basic theory of Chimel – that a warrantless search incident to arrest must be limited to areas within the arrestee’s “immediate control” – now essentially applies to searches of vehicles after the arrest of the driver. So in the usual case in which a driver is arrested for a traffic violation and placed securely in the patrol car, the Chimel rationale will normally not permit the police to search the passenger compartment incident to the arrest.Arizona v. Gant RuleGant establishes that the search-incident-to-arrest rationale allows a warrantless search of the passenger compartment only if one of two things is true:The arrestee has access to the passenger compartment at the moment of the search (which will virtually never be the case if standard police practice is followed); orThe police reasonably believe that the passenger compartment may contain evidence of the offense for which the arrest is being made.In the most common situation, the old law is applied – the police make an arrest for a traffic violation, handcuff the driver and put him in the patrol car, and then find evidence of some other crime when they search the passenger compartment – the search will now no longer be justified by the incident-to-arrest doctrine.Regarding the second instance above, if the arrest was for the sort of offense evidence of which would likely be found in the car – e.g., a drug possession offense – the police could still search the passenger compartment (and any containers therein) for evidence of that offense. However, in the case of a traffic violation, this rationale will not apply, since evidence of a traffic violation will rarely be expected to be found inside the passenger compartment.Arizona v. Gant (US – 2009)The police reasonably believed that Gant’s driver’s license had been suspended, and that there was an outstanding warrant for his arrest for driving with a suspended license. They waited for Gant at his residence and, when he drove into the driveway, arrested him on the warrant. They handcuffed him, locked him in the back seat of the patrol car, and searched his car. There, they found cocaine in the pocket of a jacket on the back seat. The Court held that the search-incident-to-arrest rationale did not apply to the search here because of Gant’s lack of access to the passenger compartment at the time of the search.Other opportunities for vehicle searchDriver possibly dangerous (Michigan v. Long)Suppose the police have stopped a car, have asked the driver to exit, and are now interrogating him, but have not arrested him. If the police reasonably conclude that the driver may be dangerous and might gain access to a weapon inside the car once he’s permitted to return to the car post-interrogation, Michigan v. Long says that under a form of the stop-and-frisk doctrine, the police may conduct a brief protective search of the passenger compartment for weapons. Then, if they find some contraband (e.g., drugs), they can seize the item. Probable cause to searchWhen the police properly stop a car, then whether they make an arrest of the driver or not, if they have probable cause to believe that the vehicle contains contraband or evidence of a crime, they can search any part of the vehicle where the evidence might plausibly be found (US v. Ross).This exception applies even though the stop (and/or the arrest) is not for the same crime to which the probable-cause-for-search relates.Therefore, when the police stop a car on suspicion of crime A and then during the stop learn additional information that makes them suspect that the car may contain evidence of crime B, they can search those areas of the car where that evidence might be, without relying on the search-incident-to-arrest doctrine.Look for this exception when the police legitimately stop a driver for a minor traffic violation but have PC to believe there is evidence of drug possession.Protective sweepsA development that cuts back on the effect of Chimel is the Court’s recognition of “protective sweeps.” Chimel holds that a warrantless search incident to arrest must be limited to areas within the arrestee’s “immediate control.” But post-Chimel, the Court has held that the officers may conduct a protective sweep of all or part of the premise, if:The arrest takes place in the suspect’s home,They have a “reasonable belief” based on “specified and articulable facts” that;Another person may be present in the areas to be swept; andThat person might be dangerous to the officer.Nature of protective sweepsA protective sweep is a quick and limited search of premises incident to arrest, and is conducted to protect the safety of arresting officers. This is not a full search of the premises, but may extend “only to a cursory inspection of those spaces where a person may be found.”Maryland v. Buie (US – 1990)The arresting officers, by a phone call to D’s house before the arrest, knew that at least one other person (a woman) was present there apart from D. The officers went to the house, and then “fanned out through the first and second floors.” One of the officers shouted into the basement for anyone to come out; D emerged from the basement.After D was arrested and handcuffed, another officer went into the basement “in case there was someone else” there; while in the basement, he found evidence that implicated D.The Court remanded on whether the knowledge that a second person was in the house (and also had advance notice of the arrest of D) and potentially hiding in the basement satisfied the “articulable facts” standard. However, it is likely it does. The state court, on remand, upheld the search.United States v. Lemus (9th Cir. – 2009)Police had a valid arrest warrant for D. D was approached while walking toward his apt. Instead of coming to the officers, he retreated and before he got fully inside, police arrested him. Police then searched the living room which was “immediately adjoining” to the area in which D was arrested – a gun was found. D was a known felon and therefore charged with unlawful possession of a firearm.The Court upheld the search of the living room as a “search incident to arrest” because the living room was an immediately adjoining area to which D was arrested. The butt of the gun was seen in plain view from the area searched therefore it could be seized (although a warrant was obtained before seizure).Lemus is a combination of the search incident to arrest (and protective sweeps) with the plain view doctrine.Destruction of evidenceA “protective sweep” allows an officer to find someone in the premises who may be a danger to the officers’ security, so a more extensive search incident to arrest might be allowed where the destruction of evidence by a confederate is threatened. Contemporaneity of searchThe Court seems to be lenient with respect to the time which may elapse between arrest and search.Search prior to arrestThe Court upheld a search as being incident to arrest even though it occurred immediately before the arrest. However, PC for the arrest must exist independently of the fruits of the search (Rawlings v. Kentucky, US – 1980).Search after long post-arrest delayThe search-incident-to-arrest is applicable even to searches which do not occur until some time after the arrest, at least where the search is made of objects in the suspect’s possession at the time of arrest.Search of personThus searches of an arrestee’s person which are made on the way to the police station, or after the suspect is in custody, have been upheld despite the absence of a warrant. Such searches are generally justified on the grounds that the police have the right to inventory the suspect’s property before incarcerating him.The search must not be unreasonable either because of their number or manner of perpetration.Return to premisesHowever, where the police return to the premises where the arrest took place after incarcerating the arrestee, courts are less willing to permit a warrantless search.Legality of arrestThe search-incident-to-arrest exception applies only where the arrest is legal. Thus if the arrest turns out to have been made without PC, the search incident to it cannot be justified on the incident to arrest rationale, and the evidence must be suppressed unless some other exception to the warrant requirement justifies it.Arrest on probable cause but in violation of state lawA search that is made incident to an arrest that was supported by PC but made in violation of state law (e.g., crime is considered so minor that only a summons is to be issued) does not violate the suspect’s Fourth Amendment rights.Pretextual arrestsWhren v. US held that the fact that a stop of a motorist for a traffic violation is made for pretextual reasons does not mean that any evidence garnered as a result of that stop was unlawfully obtained, or inadmissible. Therefore, it is likely that the rationale of Whren probably extends to pretextual arrests as well. If so, a search incident to a pretextual arrest is nonetheless lawful, as long as the police in fact had PC to believe that the person arrested had committed a crime for which arrest was allowed under local law.Exigent CircumstancesExigent circumstances generallyEven where the “search-incident-to-arrest” exception to the search warrant requirement does not apply, there may be exigent circumstances which justify dispensing with the warrant requirement. These circumstances may include:Preventing the imminent destruction of evidence,Preventing harm to persons, and Searching in “hot pursuit”Destruction of evidenceWhere the police reasonably fear that evidence of a crime will be destroyed if they do not act quickly, these fears may justify at least a warrantless seizure, if not a warrantless search.In the usual scenario, the police reasonably believe that particular premises contain contraband or evidence of crime, and that if they leave the premises unguarded while obtaining a warrant, the perpetrator or accomplice will destroy the evidence before the warrant can be obtained.Most commonly, the police have reasonable cause to believe that there are narcotics in the premises and wish to seal off the premises (a “seizure” under the Fourth Amendment) until a warrant can be obtained.Rule: when police have (a) probable cause to believe that premises contain evidence of crime or contraband, and (b) reason to fear that someone will destroy that evidence before a search warrant can be obtained, they can take steps to avoid that destruction (e.g., sealing the premises, or accompanying the inhabitants while they are in the premises) as long as the intrusion is no more restrictive than necessary and lasts no longer than is reasonably needed to get the search warrant.Need for fast actionSome cases have allowed warrantless searches or seizures whose motivation is that danger to life may occur if the police cannot act quickly.Political crimesPolitical assassination cases have sometimes given rise to such warrantless searches.People v. Sirhan (Cal. 1972)A few hours after the shooting of RFK, police conducted a warrantless search of D’s house. The search was upheld even though there was no reasonable cause to believe the house contained evidence of a conspiracy to assassinate prominent political leaders, the mere possibility that there might be such evidence warranted the officers’ search.People may need assistance (Emergency situations)Indications that a person may be in danger inside the premises may constitute exigent circumstances justifying a warrantless search. Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.Brigham City v. Stuart (US – 2006)At 3am, acting without a warrant, police respond to a call that a loud party is taking place at a house. When they arrive, they hear shouting and they then see, through a screen door, an altercation taking place in the kitchen, in which four adults are trying to restrain a juvenile. They see the juvenile break free and hit one of the adults in the face. At that moment, the police open the door, enter, announce themselves, and arrest several adults present on various charges such as contributing to the delinquency of a minor. The Court held that the entry, though warrantless, did not violate the Fourth Amendment, because the entry was justified by exigent circumstances. The police may make a warrantless entry into a home to assist an injured occupant or prevent imminent injury.“Objectively reasonable” test, not actual motiveIn the exigent-circumstances scenario, the reasonableness of the police action will be judged not by considering whether the police’s motive in making the entry was to respond to the exigency, but rather by whether the circumstances, viewed objectively, were exigent.WeaponsThe “need for immediate action” rationale has also been applied to allow warrantless searches of premises where the police have a reasonable suspicion that dangerous weapons will be on the premises to be searched. But it is only in the unusually frightening case, such as a political assassination or major terrorist plot, that the requirement of probable cause to believe the weapons will be found is likely to be dispensed with.FirefightersWhen a building is on fire, fireman may enter to control the blaze without a warrant. In Michigan v. Tyler, the Court held that once firemen were in the building, they could remain there for a “reasonable time” to investigate the case of the blaze. Note that the Court held that even though the firemen left at 4am but returned at sunrise to investigate was reasonable, a search conducted three weeks later was “detached from the initial exigency and a warrantless entry.”Hot pursuitIf the police are pursuing a felony suspect and they have reason to believe that he has entered particular premises, they may enter those premises to search for himWhether exception requires a felony is unclear:Felony – definitely OKMisdemeanors – maybeInfraction/citation – definitely NOWhile they are searching for him, they may also search for weapons which, since he is still at large, he might seize.Note: “hot pursuit” may be performed by someone other than police officers (e.g., taxi drivers) but the “trail can go cold quickly – 15 or 20 minutes max.” Note: the chase aspect of the hot pursuit must begin in a public areaOther itemsWhile the police are engaged in a “hot pursuit” for a suspect and any weapons he might have, they may come across other evidence of criminal behavior. This evidence may be seized and admitted, at least if it is discovered at a place where the police were reasonably searching for the suspect or his weapons.Warden v. Hayden (US – 1967)Police get word that D, an armed robbery suspect, has just entered a particular house (turns out to be his own). The police ring the doorbell, and D’s wife answers. The police ask for and receive permission to search for what they describe as “a burglar.” Their search was justified by the police’s “hot pursuit,” regardless of the validity of D’s wife consent to the search. The Court held that the police acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. Entry to arrest non-residentThe mere fact that the police are attempting to make an arrest does not by itself permit them to enter a private dwelling in search of the suspect. Thus where the police are not in hot pursuit, and there are no other exigent circumstances, they may not enter one person’s private dwelling to arrest another, even if they are acting pursuant to an arrest warrant.An arrest warrant may not be used as legal authority to enter the home of a person other than the person named in the warrant. Compare to Payton v. New York, where the Court held an arrest warrant alone will suffice to allow the police to enter a suspect’s own residence to arrest him.Search of scene of a murderThe fact that the place being searched is the scene of a recent murder is not by itself an “exigent circumstance” automatically justifying a warrantless search. Mincey v. Arizona (US – 1978)The defendant, in his own apartment, shot an undercover police officer, and was shortly thereafter arrested by other officers. Homicide detectives then began an extensive warrantless search of the entire apartment, a search which lasted four days.The Court said warrantless search of the scene of a homicide is not automatically valid. The Court stressed this was not a real emergency, since there was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant, and the police in fact posted a guard on the premises during the entire four-day search anyway.The “Plain View” Doctrine and Seizures of EvidenceGeneral applicabilityThe “plain view” doctrine states that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.Requirements of doctrineThe officer must not have violated the Fourth Amendment in arriving at the place from which the items are plainly viewed;The incriminating nature of the items must be immediately apparent; andThe officers must have a lawful right of access to the object itself.Legally on premisesThe officers may not have violated the Fourth Amendment in getting to the place from which they are able to view the evidence. This means the area they are standing on must be public or they must have a valid, legal reason (e.g., exigent circumstances to enter a residence) to be there. So if an officer trespasses into D’s backyard and sees marijuana plants growing, the doctrine would not apply (furthermore, a warrant based on this evidence alone would be invalid).Incriminating nature must be apparentThe police, at the moment they first see the item in plain view, must have probable cause to believe that the object is contraband, stolen property, or that it is useful as evidence of a crime.Arizona v. Hicks (US – 1987)A bullet was shot through D’s apartment floor and injured a man in the apartment below. Police enter D’s apartment looking for the shooter and any weapons. While doing so, an officer notices an expensive stereo which seems out of place in the impoverished apartment. He suspected it stolen, picked up one component, reported the serial number to headquarters, learned it actually was stolen and seized it. The Court held that the plain view doctrine did not apply because at the moment the officer picked up the stereo, he did not have probable cause for the search he performed by moving it, merely a “reasonable suspicion.”Note that by the time he seized it, he did have probable cause but transmitting the serial number to HQ, but got that via the illegal search to retrieve the serial number.Lawful right of access to objectFor example, if police are standing on a public sidewalk and view marijuana plants growing inside a residence, the police cannot seize the evidence under the plain view doctrine because they cannot enter the house without a warrant. Conversely, if the police saw a man beating up a child, entered the house under exigent circumstances and saw the marijuana plants in the next room, they could lawfully seize them.No requirement for inadvertenceThe “plain view” doctrine applies even where the police’s discovery of a piece of evidence they want to seize is not inadvertent. Thus if the police know that they are likely to find both the gun used in a robbery as well as proceeds of the robbery, they may procure a warrant for the proceeds, and they may then seize the gun if they happen upon it in pain view while they are searching for the proceeds.Horton v. California (US – 1990)Police applied for a warrant to search D’s home in connection with a robbery – police had a description of the weapons used. However, they obtained a warrant authorizing a search only for robbery proceeds. During execution of the warrant, the police came across the weapons as they suspected. The Court held the seizure valid under the plain view doctrine, even though the discovery was not inadvertent. Plain View and Computer SearchesConsent to search a computer is complicated because it often has segregated blocks of information. When evaluating whether a third party has consent to a search and seizure of a computer consider whether a computer is more like a shared duffel bag (all users have authority to consent to all of it) or more like a locked footlocker (only person with key may consent). Look at: (1) identity of the users, (2) whether password protection is used, and (3) the location of the computer in the house.US v. Stabile (3rd Cir. – 2011)Agents suspect mortgage fraud; go to suspect’s home and are invited in by “wife.” She provides consent to a “complete search” of the premises. During the search of the home, agents from several DVDs in a desk bearing labels which led the agents to believe the DVDs contained child porn.Agents seize, inter alia, several hard drives; defendant returns home, attempts to revoke consent.Subsequent search of computers, when instructed only to search for financial crimes, yields evidence of child porn in, inter alia, files within “Kazvid” folder (file names suggestive of child porn – agent opened files and confirmed). New search warrant obtained only on names of files, not contents themselves.The Court found no 4th Amendment violations.“Wife’s” consent to search was valid because as a cohabitant she had common authority to consent – mistaken belief “wife” and D were married is irrelevant. Consent was voluntary was OK.“Wife’s” consent to search and seize 6 hard drives was valid based on factors leading to the determination Stabile had relinquished his privacy (especially due to the lack of a password). Seizure of 6 was reasonable because segregation of data on the spot would have been time consuming and required an expert to go there.Stabile could not revoke the “wife’s” consent to the search because he was not physically present at the time she consented. Nor could he revoke the consent to the seizure of the hard drives because he had relinquished his privacy and assumed the risk that a third-party would consent to their search and seizure.No violation when agent opened Kazvid folder because people may hide files in purposely misnamed folders. The names of the files inside were in plain view.Two theories on searching computers: (1) Carney: focus on file type identified in the warrant, file names, key word search, and directory structure (more restrictive), (2) Williams: authorized a “cursory review” of each file on the computer.Automobile SearchesRelation of car searches to other searchesAll exceptions to the requirement of a search warrant may apply to the search of an automobile as well as to the search of persons and premises.Exigent circumstancesExigent circumstances will often cause the warrant requirement to be suspended when a car search is involved. Thus the police may search a vehicle without a warrant if such a search is necessary to preserve evidence and there is PC that such exists in the vehicle, as will be the case where the car can be quickly driven out of the jurisdiction (Carrolll v. US).Incident to arrestGant establishes that the search-incident-to-arrest rationale allows a warrantless search of the passenger compartment only if one of two things is true:The arrestee has access to the passenger compartment at the moment of the search (almost never the case because they are typically handcuffed and outside the car), orThe police reasonably believe that the passenger compartment may contain evidence of the offense for which the arrest is being made.Note: in the most common situation, the police make an arrest for a traffic violation, handcuff the driver and put him in the patrol car, and then find some evidence of some other crime when they search the passenger compartment. Under Gant, the search will no longer be justified by the incident-to-arrest doctrine.Search at station after arrestWhen police arrest a driver and take him and his car to the station, they may search the car there.Search at place where vehicle is stoppedPolice also generally have a right to conduct a warrantless search of a vehicle immediately at the place where they have stopped it (assuming they had probable cause to make the stop).California v. Carney (US - 1985)DEA agents, based on word from an informant and their own observations, had probable cause to believe that a motor home parked in a parking lot is being used for distribution of marijuana. The agents and the informant knock on the motor home’s door, one agent goes inside without a warrant, finds marijuana and arrests D.The Court held that the warrantless search was valid, and fell within the vehicle exception to the requirement of a search warrant recognized by Carroll.Use of pretext to make stopAn officer may conduct a full-scale search after stopping the driver for a minor traffic violation, even if this search is conducted due to an unrelated suspicion. The fact that an officer’s “real” reason for the stop is irrelevant – once the officer has probable cause to believe that even a minor traffic (or other) violation has occurred, they may stop the vehicle. If the valid stop gives the officer probable cause to believe that contraband is inside, he may perform a warrantless search.Whren v. US (US – 1996)Police were patrolling a high drug area. Their suspicions were aroused when they saw a truck with temporary plates and youthful occupants at a stop sign for 20 seconds. The cops did a U-turn and the truck turned right without signally and sped off. The police stopped the truck for speeding and failure to use a turning signal. The police searched the truck, found crack and arrested the passenger holding it. RULE: if the police have probable cause to believe that a traffic (or other) law has been broken, they may stop the perpetrator, even if their motive in doing so is to seek evidence of some other crime for which they do not have probable cause or even reasonable suspicion. Traffic ticketsWhere the police stop a car and merely write a traffic ticket instead of making an arrest, their search-and-seizure powers are more limited than where they make an arrest. In the traffic case, the officer may not search the vehicle (or the driver’s person), unless there is probable cause to believe that evidence of something other than the traffic violation will be found. See Knowles v. Iowa.This is so because the rationales of allowing searches incident to arrest applies to simple traffic ticket situations: (1) protect officer safety, and (2) avoid the hiding or destruction of evidence.Extended to closed containersClosed containers (including luggage) carried by car or other form of transport may normally be searched without warrant if the car itself if being subjected to a valid Carroll or Chambers-type warrantless search based on probable cause. All receptacles and packages that could possibly contain the object of the search were validly searchable.If police have PC to believe that contraband (or evidence of crime) could be in a closed container found in the car, the police may open that container.It must be possible that the object of the search can be found in the container (e.g., cannot look for undocumented aliens in a small suitcase).US v. Ross (US – 1982)Police acted on a tip received from an informant that defendant was selling drugs in the trunk of his car. The police spotted a car and driver matching the description given by the informant. They did not obtain a search or arrest warrant but arrested the driver. One officer opened the trunk and found a closed paper bag. He opened it and discovered glassine bags containing heroin. A second warrantless search took place at the station which turned up a zippered pouch containing cash.The Court upheld the searches because the car was legitimately stopped and the police had probable cause to believe that contraband was contained in it – the search could be as thorough as one pursuant to a valid warrant.Container belonging to a passengerWhere the police have PC to believe a stopped vehicle contains contraband or evidence of crime (i.e., probable cause to do a Ross-type warrantless search of the vehicle and its contents), they may also search any container they know belongs to a passenger rather than to the driver, even if the police have no grounds whatever to suspect the passenger of any wrongdoing.Probable cause for container onlyIf police have probable cause to believe that a container contains contraband, they may wait until the container is in the car, stop the car, and seize and open the container, all without a warrant.Note – policy: this gives the police a powerful incentive to postpone getting a warrant. If they see a person carrying a container that they believe contains contraband, the police will normally need a warrant to make a seizure on the street. But if they follow the suspect and wait long enough, he may eventually put the container in the car – at that point, they can stop the car, seize the container and search it without getting a warrant.Search for vehicle identification numberAll cars are required by federal law to have a Vehicle Identification Number (VIN). The law requires that the VIN be placed on the dashboard so that it can be seen by someone outside. The Court has held that where a traffic stop is made and the driver exits the vehicle, the officer may reach into the car to clear away anything that obscures the VIN. If in doing so he finds weapons, contraband, etc., these will then be treated as having been in “plain view.”Impoundment search where no probable causeWhen police have PC for a warrantless search and impound the vehicle, they may search the car (under the vehicle exception).When police do not have PC for a warrantless search, they may search the vehicle pursuant to an inventory search.Note that inventory searches permit search of a container if that is what the protocol calls for.Actions directed at passengersIf the driver’s conduct leads the police to make a proper stop and/or arrest, this does not mean the officer ahs the right to search the person of the passenger who happens to be in the car. No matter what the driver has done, the officer may search a passenger only if he has either: PC to believe that the passenger possesses contraband, or PC to arrest the passenger (then perform a SITA).However the officer has other rights regarding the passengers:As a method of ensuring officer safety, the officer may demand that the passenger step out of the vehicle.Also for safety, if the officer has a reasonable fear that the passenger may be armed or dangerous, he may frisk and pat-down the passenger, to make sure that the passenger is not carrying a weapon.If the officer has the right to search the vehicle (e.g., because he is arresting the driver, or because he has reasonable cause to believe the vehicle contains contraband or evidence of a crime), the officer may also search any container in the car that might contain the thing being looked for, even if the officer knows that the container belongs to the passenger, and even if the officer has no PC to believe that the container contains that thing.Traffic stop followed by ticketWhere the police make a routine traffic stop and issue a traffic ticket, and do not make an “arrest,” they do not have the right to search the car (Knowles v. Iowa).Policy:The Court stated SITA are premised on: (1) protecting officer safety, and (2) avoiding the hiding or destruction of evidence. Neither applies in a traffic-ticket situation. The officer’s safety may be protected by a frisk and pat-down if there is a reasonable belief that a passenger is armed and dangerous. Anyone may also be ordered out of the car. Also, with only a traffic-ticket, there is no worry about the destruction of evidence because all evidence necessary for a traffic ticket has been collected by the time the car has stopped.Consent Searches GenerallyPolice may make a constitutional warrantless search if they receive the consent of the individual whose premises, effect, or person are to be searched.Schneckloth v. Bustamonte (US – 1973)Police stopped a car with 6 men and asked for consent to search the car without mentioning the right to refuse. Consent was given and stolen checks were found.The Court held the consent and search valid – the officer did not have to disclose the right to refuse.RULE: The consenter’s ignorance of his right to refuse consent is only a factor to be considered in ascertaining the validity of the consent. The Court applied a “totality of the circumstances” test to the determination of a consent’s validity.Note: U.S. v. Mendenhall held that the suspect’s subjective mental state is what is relevant – the test is whether the suspect believed the consent was in fact voluntary.Importance of probable causeIn determining whether the consent was voluntary, it might be sensible to take into account whether probable cause to search was present. If probable cause was present, and a warrant could have been obtained, the consent merely speeds up a search which could have taken place otherwise. If probable cause to search is lacking, the consent enables the police to perform a search that they could otherwise not have performed.Claims of authority to searchWhen the consent to search is procured after the officer states that he has, or will get, authority to search, regardless of whether the consent is given, court distinguish between (a) false claims of present authority and (b) threats of future action.False claim of present authorityThe Supreme Court has held that where an officer falsely asserts that he has a search warrant, and then procures “consent,” the consent is invalid because the “consent” was not voluntary. Claims that have been found to be coercive:“We have a search warrant.” (and does not)“We are here to search your house.”Numerous police request consent in the middle of the night at a person’s homeIf the police state they have a warrant and the warrant is in fact invalid (e.g., insufficient definiteness, lack of probable cause, etc.), the consent of the person whose premises are to be search is similarly invalid. Threats to obtain warrantWhere the police do not state that they presently have a warrant but threaten to obtain one if consent is not given, whether the consent is voluntary and valid depends on whether the police in fact have grounds to get a warrant.Police have groundsWhere the police have grounds, their threat to obtain a warrant does not vitiate the consent of the person whose premises are to be searched.No groundsWhere the police do not have grounds, then their threat to get a warrant – which amounts to deception on the issue of whether they have grounds – usually will nullify the consent.Other kinds of deceptionMisrepresentation of identityWhere the police make use of an undercover agent, who by concealing his identity gains entry into the suspect’s premises, the agent may make any observations permitted by the suspect. Misrepresentation of intentionWhere the police do not conceal their identity but misrepresent their intentions, the Court has not announced a rule. Examples: (1) police tell suspect he will find buyer for gun, does so but then runs test on the gun – consent was voluntary; and (2) D told his blood sample will be used to determine drunkenness but actually used to test blood type for rape case – consent was involuntary.Physical scope of searchWhen a search exceeds the scope consented to, courts typically find the aspects of the search that were broader than the consent invalid (e.g., consent to search house for narcotics, in-depth search of papers found invalid). However, if the police are proceeding to search only the area consented to, and they see in plain view an object outside the consent area, they may seize it pursuant to the plan view doctrine.When police have consent to search an automobile, the Court has held this consent covers closed containers within the car belonging to the consenter (unless there is clear evidence the consenter intended otherwise).Second searchAutomobilesWhen the consent was for an automobile and the consenter was in jail, the consent was held to be for a search at any time as well as a second search.House searchWhere the consent was for the consenter’s house and the second search occurred a day later and the consenter’s status had changed from suspect to accused, the consent was invalid.Consent by Third PersonsJoint authorityJoint authority means the situation where D and the third party have (1) some sort of joint access to, and (2) some sort of joint expectation of privacy in, the place to be searched. Examples:Roommates, as to the common areas of the dwelling or any shared bedroom;Husband and wife, as to the marital dwelling;A homeowner (or tenant) and his social guest, where the homeowner gives the consent and the evidence is used against the social guest.D is absent when third person consentsWhen D is absent and the police ask for and receive consent of the third person to search the jointly controlled (or what they believe to be the jointly-controlled) premises, the third party’s consent is effective, if that third party either:actually has, or is reasonably believed by the police to have, joint authority over the premises. The third party consent will be binding on the absent defendant even if the police were mistaken about whether the consenter in fact had joint authority over the premises, as long as the mistake was a reasonable one. D is present and objecting when third person consentsWhen D is present, the third party consents to a search, and D makes it clear he is not consenting, the third party’s consent will not be binding on D, at least where it appears to the police that the third person and D have equal claim to the premises.Georgia v. Randolph (US – 2006)D, who is estranged from her husband D, returns to the former marital residence. There, she calls the police. When they arrive without a warrant, she tells them about a custody dispute she and D are having, and says that D is a cocaine user. Shortly thereafter, D arrives back at the house, and denies being a drug user. W tells the police that there are items showing D’s drug use in the house. The police ask D for his consent to search the house, and he refuses. The police then ask W for consent and she readily gives it. In what W identifies as D’s bedroom, the police find cocaine.The Court held the co-tenant who wishes to open the door to a third person has no recognized authority in law or social practice to prevail over a present and objecting co-tenant. The police’s warrantless entry in the face of D’s express refusal to consent made this an unreasonable search. Husband, wives, and loversWhere one spouse (or spouse-equivalent, in the case of an unmarried couple living together) consents to a search of their joint living area, that search will generally be upheld as against the non-consenting spouse.ExceptionsSeveral of the circumstances which might result in the consent not being valid:Personal effectsIf one spouse permits the search of the other’s personal effects stored in a separate drawer, the third-party consent may be invalid.No access to areaIf one spouse consents to the search of a special area to which the consenting spouse would not normally have access (and which is used solely by the non-consenting spouse), the consent may be found to be without authority and thus invalid. For instance, if W consents to let the police break open and search H’s locked basement workshop, to which W has no key, this consent might be held invalid on the grounds that the basement was not “common” space as to which W had joint authority.Other spouse refuses to consentIf the police know that the other spouse is objecting, the consent won’t be effective.Parents and childrenMost courts have held that when a child is living at home with his parents, the parents may consent to a search of the child’s room. The child, on the other hand, may not normally consent to a full-scale search of the parents’ house. Note: Whether a child may consent to the common areas of the house may be dependent on the child’s age – teenagers can generally consent, but it is unlikely younger would have the authority to consent.Landlord, tenants, and co-tenantsConsent by landlordA landlord may not consent to a search of his tenant’s rooms, even though he has the right to enter for cleaning. But he probably may consent to a search of the areas of “common usage,” such as hallways and common dining areas.Note: a hotel guest should be treated like any other tenant and that management may not consent to a search of the guest’s room. But after the guest has checked out permanently, a hotel employee may consent to a search of the items left behind.Consent by co-tenantIf two or more people have equal right to or access to premises, one may generally consent to a search of the common premises when the other is absent. However, if one co-tenant is present and objects, the other’s consent may not be sufficient to allow a search.Tenants with varying property interestsWhen two tenants are property that have different property interest, the word of tenant with the superior property interest controls. Example, the consent of the owner to search will override an objection of a non-paying guest. This excludes the non-paying guest’s luggage – however, non-paying guest must be there to object.Employers and employeesBoth the employer’s consent to search his employee’s work area, and employee’s consent to a search of his employer’s premises have been upheld. An employer has usually been allowed to consent to a search of his employee’s work area if the search is for items related to the job. But where the search is of areas where the employee is permitted to store non-work-related items, the consent will probably not be binding. An employee may consent to a search of his employer’s premises if he is in a position of substantial authority but where an employee is only temporarily in charge, he cannot consent for his employer.Bailors and baileesWhere one person entrusts his property to another, the bailee will sometimes be allowed to consent to search of the bailed property. For example, a person sharing a duffel bag may consent to a search of items left in it by the other sharer.The Court believes the duration of the bailment and the extent to which the bailor has given up control is important. Example: When a bailor stores boxes in the bailee’s garage for an indefinite period and the bailee has the only key, the bailee may consent to a search.Example: When D visits a store and is required to check his bag per store policy, the store clerk may not consent to a search.The extent of the search may also be a factor. For example, a quick search of clothing given to a dry-cleaners to determine whether it is stolen is acceptable but such clothing may not be given to police for laboratory testing.“Stop-and-Frisk” and Other Brief DetentionsA limited, protective pat-down for weapons is permissible if the officer has “reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”Note: the reasonableness of the suspicion is evaluated under the totality of the circumstances (US v. Arvizu).Terry v. Ohio (US – 1968)The Court held that a stop-and-frisk could be constitutionally permissible despite the lack of probable cause for either a full arrest or full search, and despite the fact that a brief detainment not amounting to a full arrest was a “seizure” requires some degree of 4th Amendment protection. A cop observed Terry in what appeared to be the process of robbing a store. He identified himself as a policeman, and asked Terry to identify himself. Terry mumbled, the cop patted down the outside of his clothing, felt a pistol and removed it. Terry was convicted on charges of carrying a concealed weapon. The Court held (a) the detainment on the street was a sufficient intrusion on his freedom that is was a “seizure,” and (b) the pat-down was a “search.” However, the Court held no probable cause was needed for the stop-and-frisk.No warrant was required due to exigent circumstances and the need to act quickly – TEST: whether the stop-and-frisk was “unreasonable.”The Court held the questioning was reasonable because it would have been poor police work for an officer with 30 years of experience to have failed to investigate the suspicious behavior. The Court stressed two facts about the frisk that made it reasonable: (1) It was the product of the cop’s fears Terry might be armed and dangerous; and (2) It was no broader than necessary to find any weapons; no pockets were examined, and nothing more than a pat-down was given.Illinois v. Wardlow (US - 2000)Officers were patrolling an area known for heavy narcotics trafficking. Officers observed Wardlow who fled upon seeing the police. Officers pursued and stopped Wardlow. Upon conducting a pat-down, officers found a gun and arrested Wardlow.The Court held reasonable suspicion is a less demanding standard than probable cause but it requires at least a minimal level of objective justification for making the stop – the officer must be able to articulate more than an “inchoate and unparticularized suspicion of criminal activity.”An individual’s presence in an area of expected crime, standing alone, does not create reasonable suspicion; however, officers do not have to ignore characteristics of the location in forming reasonable suspicion. The unprovoked flight in the high-crime area was sufficient to form a reasonable suspicion for the stop. Upon having reasonable suspicion, Terry holds a pat-down is constitutional. RULE: The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.RULE: A determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.US v. Arvizu (US - 2002)Border patrol agent received notice of a van using a primitive, dirt road instead of a regular road while a drug trafficking checkpoint was in operation – recent drug smuggling activity in area. Agent checked out van, driver was very rigid as he drove by (typically, friendly wave), van turned on to last road to avoid checkpoint, away from any camping/recreational areas (road typically only used by 4-wheel drive vehicles), and van registered to an address in known drug-smuggling location of nearby town. Agent pulled over van, received consent to search, and found 128lbs of marijuana.The Court held the agent had reasonable suspicion to stop the van due to facts above and agent’s experience as a border patrol agent.RULE: When reviewing whether there was reasonable suspicion, courts must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective” basis for suspecting legal wrongdoing.Degree of probability required for stopA Terry-stop does not require probable cause but only requires reasonable suspicion. (a). Flight as a cause for suspicionThe combination of flight and presence in what the officer knows is a high-crime area will generally be enough for a stop (Illinois v. Wardlow - supra).The Court in Wardlow did not seem to say that unprovoked flight by itself would be enough to justify a Terry-stop (i.e., need presence in a high crime area as well).(b). Tip from informantWhen the police want to make a stop based on an informant’s tip, they may do so on “reasonable suspicion,” and do not need to have probable cause. Whether the informant’s tip if reliable enough to give rise to the required “reasonable suspicion” is to be determined by the “totality of the circumstances.”Note that “reasonable suspicion” is much less than probable cause.Prediction of future eventsWhen the court apples the “totality of the circumstances” test to evaluate information from an informant (especially an anonymous one) a key factor is whether the information has predicted future events that someone with inside information would have been unlikely to know.The prediction of future events serves to corroborate the tip because if the informant is right about future events, he is also likely to be right about the tip.Anonymous tip without corroboration not enoughAn anonymous tip will be sufficiently reliable to permit a stop if and only if, prior to the stop, the police have been able to verify that the informant’s assertion that criminality is afoot is a reliable one. If the police have not been able to confirm that the anonymous informant has inside knowledge of criminality, the tip does not justify the stop – the mere fact that the informant knows some innocent, publicly-knowable details about the suspect that turn out to be accurate (e.g., physical appearance) will not suffice.Florida v. J.L. (US – 2000)The police got an anonymous tip saying that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Two officers stopped and frisked D (as well as the others), and found an illegal gun in D’s pocket.The Court held the stop was not based upon reasonable suspicion because the anonymous tip did not provide predictive information; therefore leaving the police without means to test the informant’s knowledge or reliability.A physical description may indicate the informant knows the suspect but does not give the police any reason to believe the informant had knowledge of any “concealed criminal activity.” Without corroboration, the risk that the police (or informant) completely fabricated the story is unusually high.What constitutes a “stop”?“Reasonable person” testTEST: A person has been seized only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (US v. Mendenhall)The following are factors to be considered:The threatening presence of several officers;The display of a weapon by an officer;Some physical touching of the suspect; orThe use of language or tone of voice indicating that compliance with the officer’s request might be compelledPursuit by policeRULE: There will not be a seizure until: The suspect stops in response to the chase or to police orders; and A reasonable person in the suspect’s position would believe that he was not free to leave.California v. Hodari D (US - 1991)Officers came upon four youths around a parked car. When the youths saw the officers’ car, they took flight. One officer chased one youth on foot – just before the officer caught D, D tossed away what appeared to be a small rock (which was crack). D argued that a seizure occurred when the officer starting chasing and because the officer did not have PC for a seizure, the tossed evidence was discovered because of the illegal seizure and was therefore fruit of the poisonous tree. The Court held that no seizure had occurred until D submitted to the officer – an arrest requires either physical force, or submission to the assertion of authority.Look to apply this rationale where:The officer says “freeze” or fires a warning shot;The officer puts on flashing lights or sirens;In an airport, a narcotics agent approaches a group of passengers and announces a “baggage search.”Search of busesTEST: A seizure will not have occurred if a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.Florida v. Bostick (US – 1991)Two officers wearing badges (one with a gun) boarded a bus as part of a scheme of random drug sweeps. The officers approached D, a passenger, even though they had no particular suspicion, and asked to inspect D’s ticket and ID. D gave consent to a search of his luggage and drugs were found.Majority remanded for decision of whether seizure occurred.Consider totality of the circumstancesWas there a reason to feel required to answer questionsAre police brandishing weaponsWas there an application of force, intimidating movementWas there an authoritative tone of voiceWas there a crowd – less likely to find seizure in crowdPolice need not inform passengers of right not to cooperateThe fact that the police failed to inform the passengers that they were free not to cooperate does not matter.U.S. v. Drayton (US – 2002)A bus was parked in Florida. The driver permitted 3 officers to board. 1 officer was at the front facing the passengers, the other 2 questioned passengers. D1 and D2 were seated next to each other. 1 officer stated they were performing a program to interdict weapons and drugs. D2 permitted a search of his bag and found no contraband. Ds were wearing heavy jackets and baggy pants despite the FL weather – experience told officer drug carriers often do this. D2 then gave permission to search his person, revealing drugs. D1 then gave permission for a personal search and drugs were found – both Ds were arrested. The Court held neither instance constituted a search because they were both consensual – there is no requirement to tell the passengers they could refuse the search.“Stop” v. arrestIt is unclear how long the suspect can be detained and how intrusive the investigation can be before the “stop” turns into a full-scale arrest requiring probable cause.Reasonableness of detentionIt is clear that the detention must be no longer than the circumstances which justified it require.Example: where a person was stopped for speeding and was detained longer than was necessary to write out a ticket because the police wanted to wait to for a K-9 unit to arrive to perform a dog sniff on a completely unsubstantiated hunch the driver was hiding drugs would likely be an unreasonable length.No more intrusive than necessaryRULE: The police conduct must be no more intrusive than necessary to carry out the limited investigation allowed by Terry. This will be satisfied by a “reasonableness” approach.Florida v. Royer (US - 1983)Airport narcotics police stopped D because he fell within a “drug courier profile.” The police determined D was traveling under an assumed name, told D he was suspected of carrying drugs, and brought D to a small room. D consented to a search of his bags and drugs were found.The Court concluded that the initial stop was OK but that the search of the bags was more intrusive than necessary to carry out the limited investigation permitted by Terry. The Court held that moving him to a small room (although for if for safety reasons that would have been OK) and searching his bag were too intrusiveness. Instead, a dog should have performed a sniff test.Emphasis on “reasonableness”If the police conduct is reasonable it will satisfy the “no more intrusive than necessary” requirement.US v. Sharpe (US – 1985)Where police are acting in a “swiftly developing situation,” courts should not indulge in unrealistic second-guessing.The Court found it not unreasonable for the police to have detained D, a truck driver suspected of carrying marijuana, for 20 minutes. The reasonableness of this 20-minute stop was due in part to the fact that D’s attempt to evade the stop had caused two officers pursuing him to be separated and the one who performed the stop waited 15 minutes for the other, more experienced officer to arrive.The Court also held that the law enforcement needs of the officials performing the stop may be taken into account when determining whether the length of a stop was reasonable.Demand for identificationHiibel v. Sixth District Court (US – 2004)The Court held an officer who is making an otherwise-proper Terry stop may demand that a person orally identify himself.However, Hiibel does not establish that the police may demand that the person stopped supply an identification document (e.g., a driver’s license) – all it establishes is that the police may demand that the stoppee give an oral statement of his name. Note: it is unclear whether a demand of form of ID goes beyond the scope of a reasonable Terry stop.Alimentary canal smugglersU.S. v. Montoya de Hernandez (US – 1985)The Court concluded that the detention of D, a traveler (who was suspected of having swallowed balloons containing drugs), for 27 hours before agents found drugs in her rectum and arrested her, was justified under a Terry-like rationale. (The delay was due to D’s refusal to consent to an X-ray; she was then detained until a court order for a rectal exam could be obtained).Frisk permissible under TerryTerry indicates that where the officer wishes to conduct a frisk in connection with a stop, he must follow a two-step process:He must first merely pat down the outside of the suspect’s clothing, to feel for hard objects which might be weapons; andOnly if he feels such an object may he reach inside a pocket or article of clothingLimited purpose of friskThe frisk must be limited to the search for weapons. Unless the officer has probable cause that an object is contraband (i.e., it is recognizable as contraband immediately upon feeling the item).Example: Officers spot D leaving a building that the officers know to be a “crack house.” Based on D’s evasive behavior, the officers suspect that D may be involved in the cocaine trade, though they do not have probable cause for this belief, merely reasonable suspicion. The officers stop and frisk him. During the frisk, one officer feels a lump in D’s jacket. The officer realizes the lump is probably not a weapon, but squeezes it and otherwise manipulates it to get a better sense of what it might be. Based on this squeezing, the officer decides that the lump may be crack. He therefore removes the lump and sees that it is indeed crack. D objects to this evidence being admitted at trial. The Court held the drugs inadmissible; once the officer realized the he was not feeling a weapon, he should have stopped the frisk, rather than expanding it by squeezing and manipulating the lump. The squeezing was an expansion of the search in violation of the 4th Amendment, so the evidence was the fruit of a poisonous tree.Reason to fear dangerEven if a Terry stop is justified, the frisk may take place only if the officer has a reasonable belief that the suspect may be armed. A reasonable belief that the suspect has contraband, or that a frisk will turn up evidence of criminality, is not sufficient.Search of automobileTerry involved merely a pat-down of the suspect’s person. But the general doctrine of Terry, that 4th Amendment searches and seizures of limited intrusion may sometimes be justified on less than probable cause, has been extended to allow a search for weapons in an automobile’s passenger compartment, even though the suspect is no longer inside the car. RULE: Police may search the passenger compartment of a suspect’s car if two conditions are met: (1) They reasonably believe, based on “specific and articulable facts,” that he is dangerous and may gain immediate control of weapons if these are in the car; and (2) They look only in those parts of the passenger compartment where weapons might be placed.Plain view doctrineIf, while performing this Terry-type of weapons search, the police discover contraband or evidence of crime in a place where a weapon might have reasonably been placed, they may seize that evidence under the general “plain view” doctrine.Michigan v. Long (US – 1983)The police believed that D, who had driven his car into a ditch, was drunk. While D was out of the car, the police noticed a large hunting knife on the floor near the passenger’s seat. After performing a Terry-like pat-down of D, they searched the passenger compartment (looking for weapons, they later claimed). In so doing, they found a leather pouch on the front seat, opened it and found drugs.The Court upheld the search on the rationale of Terry, as discussed above. The Court stated that the leather pouch may reasonably have contained a weapon; there, the seizure of the drugs did not violate the 4th Amendment.The Court justified this rule by saying that D may have broken away, returned to his car and retrieved a weapon or did so after being permitted to return to his car.Note: Long is likely to apply wherever the police find weapons on the suspect’s person, or wherever they discover a weapon in plain view in the car (think also if the suspect is a prior felon). But in the typical situation of a stop for a traffic violation, the Terry/Long right to search for weapons is unlikely to apply.Brief detention at the stationIf the suspect is required to come to the police station, the Terry/Adams rationale will not apply.Lack of actual arrest irrelevantProbable cause is necessary for a stationhouse detention accompanied by interrogation, even if no formal arrest is made.FingerprintingSimilarly, the rationale of Terry will not allow the police, acting without probable cause, to require a suspect to come to the station for fingerprinting.Detention during house searchWhen police are searching a residence for contraband, pursuant to a search warrant, they may detain the occupants while the search continues. The Court stated a “brief detention” was substantially less intrusive than a full-fledged arrest, and therefore may be made on less than PC – and justified by the valid search warrant. The Court stressed prevention of flight if incriminating evidence is found, and this allows suspects to voluntarily open locked cabinets and drawers to avoid damage.Note: the Court refused to decide whether a brief detention was reasonable when the search was warrantless but justified by exigent circumstances.Note: Police may use reasonable force to detain the suspects during a brief detention while the residence is being searched. This automatically includes handcuffing all occupants of the premises.Investigation of completed felonyThe Terry exception to the requirement of PC also extends to an officer’s attempts to investigate a serious crime that took place a significant time previously. If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.Detention of propertyThe general Terry doctrine is also applicable to certain seizures of property, so that they may occur without PC.When police perform a “stop” of a person pursuant to Terry, they are also necessarily seizing whatever person effects he has with him at the time. However, the stop does not give the police the right to search the personal effects. The Court has expanded this doctrine and justified the seizure of baggage and other personal items, even where these are not incident to a Terry-justified stop of the items’ owner.US v. Place (US – 1983)Police in Miami Airport became suspicious D was transporting drugs. The police allowed D to board and check his luggage, they then had the DEA wait for D at LaGuardia Airport in NY. D refused to consent to a search so they took the luggage to JFK and a dog-sniff test revealed drugs. A warrant was obtained from this test and drugs were found.The Court held this concept to be acceptable but held that the search itself was too lengthy to qualify as a “brief detention” therefore unreasonable because it was 90-minutes.SummaryThe suspicion to support a stop need not be based on the officer’s own observations. (Adams v. Williams).A suspicion of wrongdoing entitles the officer to stop a vehicle, not just conduct an on-the-street stop of a pedestrian (Adams).The officer may, pursuant to a vehicle stop, search the car’s passenger compartment if they have reason to believe D is dangerous and may obtain possession of a weapon upon return to car (Michigan v. Long).The stop may be accompanied by a temporary seizure of personal effects, such as baggage (US v. Place).A stop is not unreasonable merely because it lasts for 27 hours (US v. Montoya de Hernandez)Inspections and Regulatory SearchesRandom stops: random stops without individualized suspicion – even if made just for the purpose of verifying driver’s license and related information – are not permissible because they give too much discretion to the officer.Fixed checkpoint for driver ID: stops of a predetermined number of vehicles at a fixed checkpoint, if done for the primary purpose of verifying driver and vehicle information (license, registration), are probably allowable, even without individualized suspicion. The same is true for checking driver sobriety. In both instances, the stop is being done for narrow regulatory purposes related to driving.Fixed checkpoint for general crime-fighting: Stops at a fixed checkpoint, for the primary purpose of general crime-fighting (e.g., finding narcotics), are not allowable without individualized suspicion.The Exclusionary RulePurpose and Function of Exclusionary RuleThe exclusionary rule, a judge-made doctrine, provides that evidence obtained by violating the defendant’s constitutional rights may not be introduced by the prosecution at least for the purpose of providing direct proof of the defendant’s guilt. Violation of regulation but not ConstitutionThe exclusionary rule applies only where evidence is obtained in violation of the Constitution; the rule is not triggered, for instance, by the gathering of evidence in violation of an administrative regulation.Standing to Assert the Exclusionary Rule – MAKE SURE TO KNOW STANDING!!!General standing issueAs a general rule, the defendant may assert the exclusionary rule only to bar evidence obtained through violation of his own constitutional rights. Confession casesOnly the person who makes the illegally-obtained confession may have it barred by the exclusionary rule.Implication of other partiesThus if one suspect, A, confesses without being given the required Miranda warnings, and in his confession implicates B, only A may assert his 5th Amendment rights and have the confession barred. However, it may still be introduced in evidence against B.Search and seizure casesRakas v. IllinoisRakas v. Illinois (US - 1978)Police pulled driver’s car over on probable cause to believe that it was involved in a robbery. Upon searching the car, the police found a sawed-off shotgun and some shells. None of the passengers in driver’s car claimed ownership of the gun or shells. The Court held none of the passengers may challenge the search of the car because none has a legitimate expectation of privacy with respect to the car’s interior.RULE: a defendant may seek to exclude evidence derived from a search or seizure only if his “legitimate expectation of privacy” (Katz test) was violated.Thus a mere possessory interest in the premises searched, or mere presence at the scene of the search, will not confer “standing,” if the defendant had no legitimate expectation of privacy that was violated by the search. Possessory interest in premisesPrior to Rakas, a possessory interest in the premises which are searched was automatically sufficient to confer standing to the object to that search. After Rakas, the question became, did the holder of the possessory interest have a legitimate expectation of privacy with respect to the premises?Normally, the answer will be yes. But cases exist where the answer is no. For example, the defendant owned a house but furnished free or paid lodging to transients, each of whom had complete run of the premises. A court might hold the owner no longer had a reasonable expectation of privacy with respect to the premises as a whole.Possessory interest in items seizedOriginally, a possessory interest in the items seized was by itself automatically enough to permit a challenge to the constitutionality of the seizure. Rule: Possession of the seized items must be evaluated like any other basis for a 4th Amend claim, i.e., it will be relevant only if it confers a legitimate expectation of privacy with respect to the item and the search.Rawlings v. Kentucky (US - 1980)D was a visitor to a house belonging to M. The police arrived with a warrant to arrest M on drug charges; while there, they conducted a search of D and of several visitors, including Cox, a friend of D’s. In Cox’s handbag, they found LSD and other drugs, ownership of which was immediately claimed by D.The Court held that D could not challenge that search because no 4th Amend rights of his were violated by it (regardless of whether Cox’s rights may have been violated).The Court conceded that D owned the drugs but stated that this was irrelevant; the question was whether D had a legitimate expectation of privacy with respect to Cox’s purse and its contents.Because D (1) had apparently stuffed the drugs in Cox’s purpose only moments before the police arrived; (2) had no right to exclude others (e.g., Cox’s other friends) from looking through the purse; and (3) admitted that he had had no subjective expectation that the purse would remain free from gov’t intrusion, D had no legitimate expectation of privacy with respect to the purse’s contents.Presence at scene of searchRakas v. Illinois overruled the rule that automatic standing was conferred upon a person who was legitimately on the premises.The Court worried this rule was overbroad and that it might “permit a causal visitor who has never seen, or been permitted to visit the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.”Instead, the Court stated the standing issue is whether the defendant had a legitimate expectation of privacy which was unreasonably violated by the search.Application to fact of RakasThe Court found that the Ds did not have such a legitimate expectation of privacy with respect to the areas where the items were found; neither the glove compartment nor the area under the car seat are areas in which a passenger as such would normally have a legitimate expectation of privacy.Social guestBut a social guest normally does have standing to object to a search of the premises where he is visiting, even though Rakas establishes that “mere presence at the scene” of a search does not confer standing.Overnight guestThe Court has held that an overnight guest has standing to object to the police’s warrantless entry of the premises where the guest is staying (Minnesota v. Olson).Business visitorThe Court has held that a business visitor to the premises will normally not have standing to object to a search of the premises, at least where the visit is a brief one unaccompanied by any real personal relationship between guest and host. This is true even where the visit takes place at a home rather than at an office or other traditional places of business.Note: if the owner of the premises consents to a search – the owner has more authority and therefore the police may search.Minnesota v. Carter (US – 1998)Two men, the Ds, spent 2 and a half hours in a third person’s apartment bagging cocaine for resale, did not have a legitimate expectation of privacy in the apartment.The Court held the Ds’ 4th Amend rights were not violated by the search because the Ds’ lack of a privacy interest in the apartment prevented them from having standing to protest the police’s conduct (note that the tenant of the apartment would have such standing but the evidence may be entered against Ds other than the tenant).The majority held that the “purely commercial nature of the transaction,” coupled with the “relatively short period of time on the premises, and the lack of any previous connection” between the Ds and the tenant, were dispositive.Non-overnight social guestsNotwithstanding the result in Carter, five members of the Court believed that a social guest will ordinarily have a legitimate expectation of privacy is his host’s home. It was only the briefness of the visit in Carter, coupled with the business-rather-than-social aspect of the Ds’ presence, that prevented a legitimate expectation of privacy from coming into existence in that case.Limited to area to which guest has accessEven where a person is a guest who is found to have a legitimate expectation of privacy in the visited premises, that expectation will extend only to those portions of the premises to which the host has given the guest access.Occupants of vehicleWhen the police stop a vehicle, both the driver and any passengers have standing to challenge the constitutionality of the vehicle stop.Brendlin v. California (US – 2007)A sheriff notices a temporary registration on a Buick that is being driven and pulls the car over. After the car has been pulled over, the sheriff sees D in the passenger seat, and recognizes him as a possible parole violator. The sheriff discovers D has an outstanding arrest warrant, arrests D and searches both D’s person and the passenger compartment of the car, finding items used to produce meth.D challenges the initial stop as having been without probable cause (which, if D has standing, would cause all fruits of the stop to be inadmissible against D). The prosecution concedes that there was no probable cause for the stop.The Court held that when an officer makes a traffic stop, the driver of the car and any passenger is seized; there, anyone may challenge the stop.However, if the stop is valid, no passenger may challenge the search because no passenger had a REOP in the interior of the car (Rakas).Rationale: the test for whether a person is seized (and therefore has standing) is whether a reasonable person in that position would have believed himself free to “terminate the encounter” between the police and her, and a passenger in a car that is stopped would not expect the officer to allow her to terminate the encounter (i.e., leave) immediately.No automatic standing for co-conspiratorsWhere one member of a conspiracy is stopped and/or searched, the other members of the conspiracy do not automatically get standing to object to the stop or search by virtue of their membership. Exceptions to the exclusionary ruleSilverthorneSilverthorne Lumber Co v. US (US – 1920)Federal agents unlawfully seized certain documents belonging to the Silverthornes and gave them to a grand jury that had already indicted both Silverthornes and their company. A federal court ordered the documents returned but photographs of them were kept, and the prosecution induced the grand jury to then issue a subpoena to regain them.The Court held the subpoena invalid because it was issued based on knowledge illegally obtained.Independent source exceptionThe Court in Silverthorne recognized that the fruits of the poisonous tree doctrine would not apply where the secondary facts in question came from two sources, only one of which was related to the original illegality. The Court’s opinion noted that facts obtained indirectly though constitutional violations do not became sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.RULE: Use of information discovered in two ways, only one of which was the product of illegality, is permitted.US v. Stabile (3rd Cir. – 2011)The Court asked: (1) whether a neutral magistrate would have issued the search warrant even if not presented with information that had been obtained during an unlawful search and (2) whether the first search (the search of the contents of the 11 video files) prompted the officers to obtain the (subsequent) search warrants.If the answers to these questions are yes and no respectively, the evidence seized is admissible.(1) Is yes – the application for the first warrant cited as PC the file names observed in plain view during the search of the 120 GB HD; and the officer’s experience files bearing such names may contain child porn. The warrant application did not mention the contents, therefore the warrant was obtained without any illegal information and warrant had PC without such knowledge.(2) Is no – based on the PC from the Kazvid folder’s file names, it would have been impossible not to have applied for the warrant – even if the officer had not viewed the files and confirmed there was child porn. Therefore, the illegally viewed files did not prompt the application of the subsequent warrant (which contained an error and authorized the search of the 40 GB HD instead of the 120 GB HD).Inevitable discoveryEvidence may be admitted if it would “inevitably” been discovered by other police techniques had it not first been obtained through the illegal discovery.The prosecution bears the burden of showing, by a preponderance of the evidence, that the information would have inevitably been discovered by lawful means. The lawful means by which the information would have been discovered must have already been in action or been part of a regimented procedure. US v. Stabile (3rd Cir. – 2011)The Court held that although the first federal search warrant mistakenly called for searching the 40 GB hard drive rather than the 120 GB hard drive, the file names Kazvid folder (in the 120 GB HD) provided PC to obtain a valid search warrant of the 120 GB HD. A lawful search would have lead to the videos of child porn. These videos, in turn, would have provided PC to obtain a search warrant for the remaining HDs, including the illegally searched 40 GB HD.In accordance with routine police procedures, the gov’t attempted to obtain the first search warrant before fully searching the 120 GB HD, and sought the second search warrant before searching the remaining HDs.Although mistakes were made, proper execution of these routine procedures would have yielded evidence of child porn. Policy: because the gov’t tried to secure warrants at every step shows little deterrence benefit in punishing the gov’t.ExampleThe “inevitable discovery rule is most often applied where the evidence illegally obtained is a weapon or a body.”Brewer v. Williams (US – 1977)D was suspected of murder, arrested, read his Miranda rights and was being driven to his lawyer who was at the police station by cops (who had promised not to interrogate D on the drive). The police knew D was very religious and mentioned the victim deserved a Christian burial – D subsequently lead them to the body, implicating himself.The Court held that the body and evidence found around it (although they would have been inadmissible due to a violation of the 6th Amendment right to counsel) was admissible through the inevitable discovery doctrine. Search crews were already in the area where the body was found and it was inevitable that the crews would have located the body shortly after if was actually discovered.Absence of bad faith not requiredThe inevitable discovery will apply even if the police use bad faith in obtaining the evidence.Scope of exceptionThe inevitable discovery doctrine applies to evidence obtained in violation of any of the suspect’s constitutional rights (e.g., 4th, 5th, or 6th Amendments).Note: the inevitable discovery doctrine requires that the prosecution show the evidence that is sought to be admitted would have inevitably been found in the same state or condition. For example, the prosecution needs to show that a body would have been found in the same condition – e.g., not decomposed – by legal means as it was when it was discovered through the illegal means.The “purged taint” exception in generalDoctrine definedThe principle of the purged taint doctrine is that if enough additional factors intervene between the original illegality and the final discovery of evidence, neither the “deterrence” nor “judicial fairness” rationales behind the exclusionary rule applies. Therefore, the evidence may be admissible despite the fact that it would not have been discovered “but for” the illegality.Wong SunThe case illustrates both the application of the “fruits of the poisonous tree” doctrine to exclude evidence obtained indirectly through constitutional violations, and the use of the “purged taint” exception to allow other evidence, even though “but for” the illegality that evidence would not have been found.Wong Sun v. US (US – 1963)Acting on a tip, federal narcotics agents broke into Toy’s apartment and handcuffed him. The entry was (at the Could held) without PC and therefore illegal.Immediately after the entry Toy made a statement accusing Yee of selling narcotics. The agents went immediately to Yee, who surrendered heroin to them, and made a statement that he had been sold the drugs by Toy and Wong Sun. Wong Sun was arrested (again the Court held on no PC), and both he and Toy were arraigned and released on their own recognizance. Several days later, Wong Sun was interrogated at the offices of the Bureau of Narcotics, where he was warned of his right to remain silent, and told that he could have a lawyer. Wong Sun responded by making a confession, but refused to sign it.Issues of admissibilityThe Court considered the following issues:Whether the statement made by Toy immediately after the illegal entry of his house could be used against him;Whether the drugs seized from Yee could be used against Toy, or were instead “fruits of the poisonous tree” (the illegal entry of Toy’s house);Whether the same drugs could be used against Wong Sun; andWhether Wong Sun’s confession was an excludable fruit of his illegal arrestUse of Toy’s statementThe Court held the statement made by Toy right after the invasion of his house could not be used against him because it was a “fruit” of the illegal invasion. The Court cited the fact that 6 or 7 officers broke-in, at a time when Toy’s wife and children were asleep, and that Toy had been immediately handcuffed as reasons why the confession was not an “independent act of free will.” Furthermore, the Court cited Bynum and held that even without the oppressive circumstances, the statement likely would not come in because it was a “fruit of the poisonous tree.”Use of drugs against ToyThe Court held that the drugs could not be used against Toy. The seizure was the direct result of Toy’s statement, which itself was, the Court held, an inadmissible fruit of the illegal invasion; the seizure was therefore due to the exploitation of the illegality.The relationship between the original illegal entry, Toy’s statement implicating Yee, and the seizure of the drugs from Yee was so close that nothing had occurred to “purge the taint” of the illegal entry. Therefore, the drugs could not be used against Toy.Use of drugs against Wong SunThe Court held the drugs admissible as against Wong Sun even though their seizure had been the direct product of the illegal entry into Toy’s house. The admissibility of the drugs against Wong Sun was due to his lack of standing to object to their seizure. The seizure of heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. It was only because Toy had had his own 4th Amend rights violated at the outset (illegal invasion of his house) that he was able to prevent the drugs against him.Use of Wong Sun’s confessionThe Court conceded Wong Sun’s arrest had been without probable cause and therefore illegal. But because Wong Sun had been released for several days after the arrest and because he returned voluntarily to give the confession, the connection between the arrest and the statement had become so attenuated as to dissipate the taint.Illegality leading the police to focus on a particular suspectWhen an illegal search, arrest, lineup, etc., put the police on to a suspect to whom they had not suspected previously courts have held the investigation into the second suspect sufficiently purged the taint of the original illegality.Furthermore, an illegal arrest does not bar the State from proving the suspect’s guilt through evidence wholly untainted by the police misconduct.Leads to different crimeWhen police are investigating one crime, and an illegal action leads them to evidence of a completely different crime, courts have held the illegality purged.Confessions as tainted fruitConfessions in Wong SunToy’s confessionToy’s confession, which followed immediately after the police’s illegal entry into his house and their handcuffing of him, was so closely tied (the confession was involuntary) to the illegal acts that it was “fruit of the poisonous tree.”Wong Sun’s confessionWong Sun’s confession, although it followed his illegal arrest, was given after he had been free on bail for several days, after he had voluntarily returned to the station for interrogation, and after he had been warned of his right to a lawyer and to remain silent.Confession where arrest made with PCWhen an arrest is made with PC but is made where a warrant is required (e.g., made is D’s house and no exigent circumstances), the Court has refused to apply the “fruit of the poisonous tree” analysis and held the confession to be voluntary.New York v. Harris (US – 1990)Police had PC to arrest D for murder. They went to D’s apartment to arrest him, without first getting an arrest warrant. There were no exigent circumstances (therefore the entire arrest procedure was unconstitutional in light of US v. Payton – no warrantless arrests in a home if no exigent circumstances). D then gave a confession after hearing his Miranda rights.The Court held that because the PC gave the police the ability to question D prior to his arrest, the station-house confession was not an exploitation of the illegal entry into D’s home.Confession as a “poisonous tree”In many cases, a confession obtained in violation of Miranda furnishes the police with leads to additional evidence, such as physical evidence or witnesses.RULE: Such evidence will never be treated as tainted fruit merely because it was derived from a non-Mirandized confession. Miranda only protects against self-incrimination, not against additional fruits of a non-Mirandized (but voluntary) confession – in that case, physical evidence or additional witnesses cannot violate Miranda (US v. Patane – infra).The “good faith warrant” exceptionUS v. Leon (US – 1984)The police, in preparing an affidavit to obtain a search warrant, relied on both information from a confidential informant as well as their own investigations. A facially-valid warrant was issued, and several premises were searched pursuant to it, yielding evidence of various narcotics violations. The two lower courts reviewing the case concluded the police had not established PC. The Court held that the prosecution may introduce evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.NOTE: this exception had been extended to cover the situation where police rely on what they think is an outstanding arrest warrant but is not in fact outstanding.The Court foresaw several types of situations in which the officer will not have reasonable grounds to believe that the warrant was properly issued, and in which the exclusionary rule will therefore still apply:Misleading affidavitThe exception will not apply if the officer who prepared the affidavit on which the warrant is based knows that the information in it is false or recklessly disregards its truth or falsity.“Rubber-stamping” magistrateThe exception will not apply if the magistrate “wholly abandons his judicial role.” For instance, if the magistrate fails to take a “neutral and detached” stance, and instead becomes part of the investigation, the exception will not apply (i.e., if the magistrate helps the police execute the search warrant).Inadequate affidavitThe underlying affidavit may be “so lacking in indicia of PC as to render official belief in its existence entirely unreasonable.” For instance, if the affidavit merely states, in a conclusory fashion, that the police have PC to believe that there is evidence of a particular crime at a particular place and does not supply any of the facts on which the belief is based, it will not be reasonable for the officer to rely on the resulting warrant.Facially deficient warrantThe warrant may be so facially deficient that the officers who execute it cannot reasonably presume it to be valid. For instance, the warrant might so completely fail to specify the items to be seized (a violation of the “particularity” clause of the 4th Amend) that reliance will be unreasonable.Note: in Massachusetts v. Sheppard, the Court upheld a search warrant for evidence of a murder on a warrant form used for narcotics searches – officers had reassurance from magistrate the forms would be amended and reliance on such was reasonable.Broadened to cover reliance on arrest warrantHerring v. US (US – 2009)D drove to the Coffee County Sheriff’s Dept. to retrieve something from his impounded truck. Officer Anderson, knew D had law enforcement issues before, checked with his own county and a nearby one to see whether there were any outstanding warrants for D’s arrest.A clerk in neighboring Dale County reported to Anderson that there was an outstanding arrest warrant for D. Anderson therefore stopped D as he drove out of the impound lot, arrested him on the Dale County warrant, searched his body, and found contraband on him. However, there actually was not an outstanding arrest warrant.The Court refused to suppress the evidence and extended the good faith exception to errors made by police instead of just the judicial system. The Court stated that the exclusionary rule should only be triggered by police conduct that is sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some instances recurring or systemic negligence. The error here did not rise to that level.Exception for “knock and announce” violationsIn most instances, when the police wish to enter a private dwelling – e.g., to execute a search warrant – they are required by the 4th Amend to “knock and announce.” That is, they are required to knock first, announce that they are the police, and give the occupant a chance to answer the door – only if the occupant does not answer within a reasonable time may the police enter forcefully.However, even if the police violate the knock-and-announce rule, the exclusionary rule will not apply.Hudson v. Michigan (US – 2006)The police arrived at D’s house with a warrant to search the house for drugs and firearms. They knocked and announced their presence but then waited only approx. 3-5 seconds before they entered forcibly. The Court held the exclusionary rule should not apply when the knock-and-announce rule is violated because the deterrence benefits do not outweigh the cost (no cost to argue this breach but suppression of all evidence if they win). Furthermore, the defendant could still bring a civil lawsuit against the police for such a breach.Fifth AmendmentLineups and Pre-trial Identification ProceduresIdentification Procedures GenerallyVarious identification proceduresThere are a number of methods by which the police may procure a physical identification of a suspect to link him with a particular crime. These include lineups, fingerprints, blood samples, voice-prints, the use of photographs, etc. Potential constitutional objections to identifications include:Self-incrimination: that such identification procedures violate the suspect’s privilege against self-incriminationSearch and seizure: that such procedures constitute an unreasonable search or seizure in violation of the 4th AmendmentRight to counsel: that when such procedures are used without the defendant having a lawyer present, the 6th Amendment right to counsel is violatedDue process: that such procedures in many cases violate the general 5th or 14th Amendment (depending on whether state or federal law enforcement officials are involved) right to due processDue Process LimitationsUnnecessarily suggestive inadmissibleThe Stovall Court established the following test for determining whether an identification procedure violated due process: “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it…”Stovall v. Denno (US – 1967)The defendant was found when keys discovered at the murder scene were traced to him. He was arrested, handcuffed to a police officer, and presented alone in a show-up before a hospitalized victim, who identified him after he spoke a few words. The suspect was the only black in the room. The victim’s life was at the time in severe jeopardy, but she recovered to make an in-court identification.The Court noted that “the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,” due to the extreme suggestion inherent in showing only the suspect.However, the Court held that the possible unfairness of a show-up was mitigated by the urgent need for the confrontation proceeding, since the hospitalized witness (who was the only living eyewitness) was in danger of dying at any moment.Suggestive identification admissible if reliableIn Neil v. Biggers, the Court found a show-up not violative of due process even though it was not justified by exigent circumstances.Neil v. Biggers (US – 1972)The victim was assaulted in her dimly lit kitchen and then raped outside under a full moon. The entire incident took 15-30 minutes, and the victim gave a general description of the height, weight, build, age, voice, hair and complexion of the assailant immediately after the event.She went through numerous photos and line-ups but did not believe she saw the man. Finally, the defendant was presented alone before the victim seven months after the crime – she said she had no doubt that was him.Despite the extreme suggestiveness inherent in the final show-up procedure, the Court held the identification lawful. The Court applied the “totality of the circumstances” test: (1) the length of time of the victim’s exposure to the assailant, (2) the adequate light during the crime, (3) the personal nature of the crime, (4) the unlikelihood others witnessed the crime, (5) the “more than ordinarily thorough” description first offered by the victim, and (6) the certainty expressed by the victim.Use of photosIn Simmons v. US, the Court held that where a witness identifies the suspect through the use of photographs, the “totality of the circumstances” test applies for determining whether due process is violated.Simmons v. US (US – 1968)A bank robbery suspect was identified by each of five witnesses (each acting outside of the presence of the others) from six photos, all of which pictured the suspect in the presence of others. This was followed by in-court identification.The Court concluded that the use of the photos was not “unnecessarily suggestive.” Note: Lower courts, in applying Stovall, Biggers, and Simmons have rarely found due process violations in identification procedures, even when extreme practices were followed.Lower courts have upheld (1) a lineup in which the suspect wore jail coveralls while the others wore street clothes; (2) a photo identification in which only one photo was shown; (3) photo identifications in which the suspect’s photograph was made to stand out (e.g., in color or full length); and (4) multiple identifications (where the witness views the suspect in more than one identification procedure).Due Process – ConfessionsAfter being read the Miranda warnings, a suspect may waive his right to a lawyer and his right to remain silent. But the courts have been fairly strict in their case-by-case decisions on the validity of waivers.Note: silence can never constitute waiver. The accused’s silence after being read his Miranda warnings will never by itself be sufficient to demonstrate a waiver. As the Miranda decision stated, “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”RULE: Coercive police activity is a necessary predicate to the finding that a confession is not voluntary.Note: The Court’s rule stated above means that if a non-gov’t actor (e.g., the suspect’s spouse or a store detective) persuades the suspect to waive his rights and confess, the fact that this third party may have used torture, duress, brainwashing, etc., would make no difference – as long as the police were innocent of wrongdoing, the waiver would be deemed voluntary, and the confession will be admitted into evidence.Arizona v. Fulminante (US – 1991)F was convicted of possession of a firearm by a felon and incarcerated. He befriended inmate S, who was a paid informant for the FBI. S learned of a rumor that F had murdered a child in AZ and that other inmates were giving him a hard time. S offered to protect F but said F had to tell him what happened. Although F previously denied it, F admitted to sexually assaulting and killing the child.The court applied the totality of the circumstances test and held that the confession was coerced. The confession was obtained as a direct result of coercion because the F felt his life was in danger if he did not (i.e., a threat of violence).A finding of coercion need not depend upon actual violence by a gov’t agent; a credible threat is sufficient.Involuntary confessionsThe test for determining whether a statement is voluntary under the 4th Amendment is whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence.The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity does not automatically render a confession involuntary. The proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired. The gov’t bears the burden of proving the statement was voluntary.To determine whether a defendant’s will has been overborne or his capacity for self-determination critically impaired, courts must consider the totality of the circumstances including the characteristics of the defendant, setting of the interview, and the details of the interrogation.US v. Braxton (4th Cir. – 1997)The Court held the confession D gave while police interviewed D about gun purchases at D’s mother’s home for approximately an hour was voluntary.D was not in a custodial setting so Miranda warnings were not required. D was in his mother’s home, several family members walked by, and he was not told he must answer the questions.The officers did not inform D of his right to remain silent or tell D he had to answer their questions. The police’s statement “we need to talk to you” does not constitute coercive conduct. The officers also stated that if D lied to them he could serve 5 years in jail. True statements about the suspect’s predicative (e.g., potential jail time) are not seen as coercive statements.Mentally ill defendantNo matter how irrational the suspect’s decision to waive his Miranda rights, the waiver will stand so long as there was no police coercion.Colorado v. Connelly (US – 1986)Connelly was a chronic schizophrenic and was in a psychotic state on at least the day before he walked up to a police officer, waived his Miranda rights, and confessed. Other evidence showed that Connelly, in confessing, thought he was following “the voice of God.” However, there was no evidence that the officer who gave the warnings and took the confession knew of D’s mental state, or used any coercion.The Court found the confession itself to be voluntary because it was not the product of police coercion. The Court also established the standard for proof of analyzing the voluntariness of a waiver of Miranda rights: the state need merely establish the voluntariness of the waiver by a preponderance of the evidence.Due Process – The Privilege Against Self-IncriminationSchmerber v. California (US – 1966)Defendant was arrested for drunken driving, and a blood sample was taken from him over his objection by a physician acting under police direction.The majority held that the forced blood was not a violation of the 5th amendment right against self-incrimination. It stated that the 5th amendment protects against only the compulsion of “communications” or “testimony,” and not against “compulsion which makes a suspect or accused the source of ‘real or physical evidence.”The Court noted that some tests seemingly directed to obtain physical evidence for example, lie detector tests measuring changes in body functions during interrogation, may actually be directed to eliciting responses which are essentially testimonial.The Court furthered stated that in some circumstances compelling a suspect to furnish physical identification might produce testimonial by-products. Thus if a suspect was opposed to blood tests on religious grounds, or was terrified of needles, he might choose to confess rather than to submit to the procedure. The Court stated that compulsion might not be permissible in such a case, or that at least the gov’t might have to forego the testimonial by-products. Extension of SchmerberSchmerber has subsequently been the basis for holding various physical identification procedures to be outside the privilege against self-incrimination.In US v. Wade, the Court said that the privilege did not apply to defendant forced to appear in a lineup and to speak for identification.Schmerber has also been applied to find the privilege against self-incrimination not applicable to fingerprinting, photography, measurements, physical movements, handwriting analysis, and examination by UV light. The defendant may also be required to give a voice sample for voiceprint analysis.Refusal to cooperate in identification procedureA suspect does not have a right to refuse to participate in an identification procedure since under Schmerber such procedures are not within the privilege against self-incrimination.A suspect may be held in contempt of court, and indefinitely jailed for his refusal to cooperate. Furthermore, a prosecutor may comment on the suspect’s refusal to cooperate in the identification procedure.Testimonial evidenceRules enumerated by Graham set forth in US v. Hubbell:There is no constitutional protection against the compelled production of existing documents to the gov’t, since the simple production of these documents isn’t tantamount to compelling “testimony” from the subpoena recipient;The act of producing said documents, however, may itself be testimonial, since production can establish that the existence of the documents, the fact that they were in the recipient’s possession and control, and their authenticity (to the extent that each are applicable) are all “foregone conclusions”;The testimonial component of a compelled production fades to nothingness if the gov’t can reveal “new” facts such as (1) the papers exist, (2) the papers are in the recipient’s possession or control, and (3) the papers are authentic;In a lot of cases where the gov’t cannot satisfy the strict “foregone conclusion” test, the recipient of a gov’t subpoena will refuse to produce the documents without a grant of immunity, since (if the documents represent evidence that the prosecution needs to indict and try and subpoena recipient) the worst that can happen if the recipient refuses is that he or she will be held in contempt;So the gov’t may grant “use and derivative use” immunity (aka “Kastigar immunity”), protecting the subpoena recipient from prosecution for crimes to the extent that such a prosecution would rely upon the documents, or information that was discovered, shaped, altered, or affected by the documents;If the prosecution grants use and derivative use immunity, gets the documents, and goes ahead and prosecutes the document-producer, and the defense later lays “a firm ‘foundation’ resting on more than ‘suspicion’…that proffered evidence was tainted by exposure to immunized testimony or that its investigation is tainted by information obtained under the grant of immunity,” then the gov’t must prove, by a preponderance of the evidence, that “all of the evidence it proposes to use was derived from legitimate independent sources.Where witness testimony is involved, the court must parse the evidence witness-by-witness and “if necessary…line-by-line and item-by-item,” to “separate the wheat of the witnesses’ unspoiled memory from the chaff of [the] immunized testimony.”US v. Hubbell (US – 2000)Hubbell plead guilty to charges of mail fraud and tax evasion and agreed to provide full and accurate information about matters relating to a corporate investigation.He was served with a subpoena for production of 11 categories of documents. After refusing, he was served with a §6003(a) and granted use and derivative use immunity. The documentation produced was the “link in the chain of evidence” that the prosecution used to prosecute him for an unrelated claim.The Court stated the question the court should asked was what was the extent of the gov’t’s independent knowledge of the documents’ existence and authenticity, and of respondent’s possession or control of them.The Court stated that the subpoena was so broad that it did not state with particularity the documents the prosecutor was attempting to obtain – “it is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence,” or “a link in the chain of evidence needed to prosecute.”The evidence obtained by the prosecutor was testimonial because the prosecutor was not aware that these documents existed; therefore, the prosecutor was relying on the truthfulness of Hubbell to demonstrate the existence, Hubbell’s possession, and the authenticity of the documents. Miranda warningsHoldings of MirandaThe Court in Miranda summarized its decision in the following words: “We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. The suspect must be warned prior to any questioning:That he has the right to remain silent,That anything he says can be used against him in a court of law,That he has the right to the presence of an attorney, and That if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.Custodial questioning onlyThe Miranda warnings are necessary only where an individual “is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” No distinction between confessions and exculpatory statementsThe Miranda rules apply to any statement made when the suspect is in custody. This means and the privileges against self-incrimination full and partial admissions.May be exercised at any timeThe right to remain silent and to have a lawyer present may be exercised at any time during the questioning. Thus even if the suspect at first indicates that he waives his right to silence and to a lawyer, if he changes his mind the interrogation must cease.WaiverThe suspect may waive his right to remain silent and to have a lawyer, but this waiver is effective only if it is knowingly and intelligently made. The suspect’s silence may not be taken as a waiver.The police must give the Miranda warnings even if they have reason to believe that the suspect is aware of his rights.Right to counselIf the suspect indicates that he wants a lawyer, and can’t afford one, the police must obtain one for him, before they conduct the interrogation.Right to applies only where questioning occursThe police do not have an absolute duty to provide counsel for all suspects who wish one; the police can avoid such if they do not interrogate the suspect. If they wish to interrogate, they must supply a lawyer to whoever wants one.Indigence presumedThe police do not have to warn the suspect that he has a right to counsel appointed for him, if they know for a fact that he can afford a lawyer of his own, or that he has already retained on. But “the expedient of giving a warning is too simple and the rights involved too important to engage is ex post facto inquiries into financial ability when there is any doubt at all on that score.”Right to lawyer’s presenceThe right to counsel imposed by Miranda is the right to have the lawyer present while the questioning goes on.InadmissibilityAny statement obtained in violation of the Miranda rules will be inadmissible as prosecution evidence.Impeachment useA confession obtained in violation of the Miranda rules cannot be introduced as part of the prosecution’s case in chief. But it may generally be introduced for purposes of impeaching testimony which the defendant has given.The court in Pilster held that the defendant’s right to a limiting instruction concerning statements obtained in violation of Miranda depends on whether the interrogating officer was required to provide Miranda warnings before questioning defendant. Miranda warnings are required as soon as a suspect’s freedom of action is curtailed to a degree associated with a formal arrest.Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? The totality of the circumstances must be considered.Although no one factor is controlling, the following should be considered:Whether the suspect has been formally arrested;Absent formal arrest, the length of the detention;The location of the questioning;The ratio of officers to suspects; andThe demeanor of the officer, including the nature of the questioning.Furthermore, consider whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether the police officers were accusatory and whether the suspect was arrested at the conclusion of the interview.People v. Pilster (Cal. App. 4th – 2006)Pilster was involved in a bar fight and hit H over the head with a beer bottle. P was questioned on the sidewalk outside of the bar, in handcuffs, by 1 cop, in a conversational tone. However, P was not read his Miranda rights, was not informed he was not under arrest or that he could decline to answer questions. P was arrested at the end of the questioning.The Court held that, looking at the totality of the circumstances, a reasonable person would have believed he or she was under arrest therefore P should have been read his Miranda rights prior to questioning.What is a “custodial” interrogation?Language of MirandaThe Miranda opinion applies only to “custodial” questioning. The Court stated that “by custodial interrogation, we mean 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.” Objective “reasonable suspect” testWhether a suspect is or is not in “custody” as of a particular moment is to be determined by an objective “reasonable suspect” test – would a reasonable person in the suspect’s position believe that he was (or was not) in custody at that moment.Thus the unexpressed intent of the police officer to hold (or not hold) the suspect against his will is irrelevant. Similarly, the suspect’s own subjective belief that he is or is not free to go, to the extent that belief is not one that would be shared by a reasonable belief is irrelevant.Place of interrogationThe place in which the interrogation takes place will often have an important bearing on whether “custody” exists. The test is always whether a reasonable person in D’s position would believe he was free to leave, and this will depend in part on the locale.Police stationInvestigations that take place at a police station are more likely to be found “custodial” than most. ArrestIf D has been told that he is “under arrest” and is escorted to the station, that’s virtually dispositive – D is clearly in custody, because a person under arrest is not free to leave.Placed in patrol carSimilarly, if D has been placed in a patrol car under circumstances suggesting that D has been arrested, he is clearly in “custody.”Voluntary police station questioningA suspect who voluntarily comes to the police station in response to a police request in normally not in custody, and therefore is not entitled to Miranda warnings.Oregon v. Mathiason (US – 1977)A burglary case, the police because suspicious of a parolee, who then came to the station in response to an officer’s message that the officer would “like to discuss something with you.”The suspect was told he was not under arrest, that the police believed he was involved in the burglary, and (falsely) that the police had found his fingerprints at the scene. The suspect admitted the theft, was then given his Miranda warnings, after which he made a taped confession.The Court held that the suspect had not been in custody at the time he made his initial confession, and had thus not then been entitled to Miranda warnings.Lack of formal arrest not dispositiveThe mere fact that there has been no formal arrest will not by itself suffice to prevent a police station questioning from being custodial. If the surrounding circumstances would indicate to a reasonable person in D’s situation that he was not free to leave the station, then the questioning is “custodial.” Street encountersThe issue of whether D is in custody often arises where the encounter takes place on the street. Here, there is no general rule. If it should be clear to one in D’s position that the police seriously suspect him of a felony, D is probably in custody. But f it appears that the police’s suspicions are minor, or if the crime for which D is being questioned is so minor that arrest is unlikely, D is probably not in custody.Scene-of-the-crime questioningIt is clear that police may engage in a general questioning of persons near the scene of a crime without giving Miranda warnings – because no custodial situations.But if the police seize one particular suspect fleeing he scene, presumably Miranda warnings must be given.D acts suspiciouslyLook to a Terry stop as a way to stop a D who may not be part of an investigation of a specific crime but may be acting suspiciously. Such encounters are at least initially non-custodial. However, if a coercive atmosphere exists (cops outnumber Ds, guns pointed, etc.), Miranda warnings may be required before any questioning.Traffic stopsUsually a stop of a motorist for a minor traffic violation is not a custodial setting – a typical driver would reasonably believe he was free to leave after being issued a ticket.Interview at homeIf the encounter takes place at D’s home and D has not been placed under arrest, the setting will be deemed non-custodial. This is due to (a) familiar atmosphere for D, (b) lack of isolation from outside world, and (c) the absence of the “police-dominated” ambiance.Airport smuggling investigationTypically this is a non-custodial situation as first, but may become custodial if it is not clear to D that he is free to leave, or if a large number of police are present so that a coercive atmosphere is created.What constitutes interrogationVolunteered statementsThe Court emphasized that volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by the holding in Miranda.Non-custodial statementsNo Miranda warning is required when a person simply walks up to an officer on the street or into a police station and makes an incriminating statement.Voluntary custodial statementsThe Miranda decision does not bar all unwarned statements by persons in custody. A person in custody might volunteer a statement without any questions having been asked of him at all. However, courts will be skeptical.Indirect questioningUsually, interrogation will take the form of a direct question addressed to the suspect. However, there are other techniques of eliciting information by indirect means. The Court in Rhode Island v. Innis held interrogation occurs whenever a person in custody is subjected to either questioning or its functional equivalent. That is to say, the term “interrogation” refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response form the suspect.Rhode Island v. Innis (US - 1980)D was arrested for a murder which had been committed by means of a sawed-off shotgun. D was transported in a police car by three officers. During the trip, one officer said to the others that there was a school for handicapped kids near the scene of the murder and that “God forbid one of the handicapped kids might find a weapon with shells and they might hurt themselves. D interrupted the conversation and directed the officers to where the gun was.The Court concluded no interrogation had taken place because the officers should not necessarily have known that their conversation was “reasonably likely to elicit an incriminating response.” The Court stated there was nothing to suggest that the officers were aware that D was “peculiarly susceptible to an appeal to his conscience concerning handicapped kids” or to suggest they knew D was unusually disoriented or upset.Identification questionsBecause the privilege against self-incrimination is not applicable to physical identification procedures, such as line-ups or fingerprinting, routine questions of a suspect for identification only should not require warnings.Questions by non-policeIn Miranda, the Court limited its holding to “questioning initiated by law enforcement officers.”The “public safety” exceptionThe Court held that Miranda warnings are unnecessary prior to questioning that is reasonably prompted by concern for the public safety. The existence of such a reasonable concern for the public safety is to be determined objectively, not be examining the subjective motivation of the officer. (New York v. Quarles)New York v. Quarles (US – 1984)Four armed officers approached D, a suspect rapist, in a grocery store. When he saw the officers, he ran towards the back of the store, where he was caught and handcuffed; a frisk showed that he was wearing an empty shoulder holster. One officer, without giving him his Miranda rights, asked him where the gun was. D answered, implicating himself.The Court created an exception for the Miranda warnings, the public safety exception, and held it covered these facts because an officer would reasonably have believed that D had just removed a gun from his holster and had concealed it somewhere in the store, where “an accomplice might make use of it or a customer or employee might later come upon it.”Objective standardWhether a threat to public safety existed is determined by an objective standard. That is, the officer’s subjective belief that there is or is not a significant threat is irrelevant. The test is whether a reasonable officer in that position would conclude that there was a threat. Note: Quarles means that in many, if not most, situations there will be a plausible claim that “public safety” required some of the questions. However, the answers still must not be coerced. For example, in Quarles, D may have been able to argue that his response was not voluntary as he was handcuffed and surrounded by 4 armed officers.Warnings required under MirandaAdequacy of warningsThe Miranda warnings must be given in a clear and unambiguous manner so that the individual understands his rights and feels free to exercise them. RULE: In determining whether police officers adequately conveyed the four Miranda warnings, the inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.Florida v. Powell (US – 2010)The Court held the following was a sufficient delivery of Miranda rights: “the right to talk to a lawyer before answering any of the law enforcement officers’ questions” and that he can invoke this “at any time…during the interview.” The suspect was arrested and transported to police headquarters where the above was read to him and he signed a form saying he understand his rights. He admitted to the crime.The four required Miranda warnings are: Right to remain silent;That anything he says can be used against him in a court of law;That he has the right to the presence of an attorney (before and during questioning); andThat if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.Where police think suspect aware of rightsThe warnings must be given even if the police have reason to believe that the suspect is already aware of his right to remain silent and to have a lawyer (Colorado v. Connelly).What constitutes a valid waiver of Miranda rights?In order to establish whether a suspect has waived his rights, the State must show that the waiver was knowing and intelligent. The waiver inquiry must show: The waiver was voluntary in a sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and Made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.Express waiverAn express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. Such a waiver will almost certainly be sufficient if reduced to writing, in the absence of any evidence of coercion of trickery.Implied waiverWaivers which are not express, but which are merely implied by the suspect’s words or conduct, are carefully scrutinized by the courts.The prosecution bears the burden of demonstrating that any waiver was an intelligent and knowing one – this is a heavy burden on the gov’t.It must be shown that the defendant understood his Miranda rights but also that he intended to relinquish them.Note: Silence can never constitute petency of suspectNo matter how irrational the suspect’s decision to waive his Miranda rights, the waiver will stand so long as there was no police coercion –this pertains to mentally ill defendants as well (Colorado v. Connelly – supra).Multiple InterrogationsSpecial waiver problems arise when the questioning is divided into several sessions. There are two principle issue: If in the first session, the suspect invoke his Miranda rights, the police may attempt to gain a waiver in a subsequent session; and If the suspect gives a valid waiver in the first session, the Miranda warnings do not need to be repeated in a subsequent session.Where rights invoked in first sessionThe factors listed in Mosley (reasons why the Court ruled no violation) should act as guideposts in determining whether the questioning should be seen as separate sessions when a suspect invokes his right to remain silent.Michigan v. Mosley (US – 1975)Defendant Williams was interrogated about two robberies after receiving his Miranda warnings, exercised his right to remain silent – questioning immediately terminated. Several hours later W was taken to a different floor of the same building and after again being given his Miranda warnings, was questioned by a different officer about a fatal shooting which had occurred in a third robbery – W implicated himself.The Court held W’s rights had not been violated because (1) the second questioning was on a different crime, (2) a significant period of time passed between the two sessions, (3) they were in different locations and (4) Miranda warnings were read before both. Where lawyer requested during first sessionRULE: if an accused invokes his right to an attorney, he shall not be subject to further interrogation until counsel has been made available to him, unless the accused himself initiates further communication with the police.RULE: If suspect invokes his right to counsel, officers can try to re-initiate questioning without counsel only after a 14 day break in custody (if suspect is back in custody).This means that waiver will not be established by the mere act that the suspect responded to later police-initiated questioning.Edwards v. Arizona (US – 1981)Edwards asserted at the time of his arrest his desire to consult with a lawyer. The questioning ceased but the police came back the next day, read the Miranda warnings again and because E knew he had already been implicated by another suspect, he gave an incriminating statement.The Court held this statement inadmissible because E had not initiated the conversation regarding the crime.Maryland v. Shatzer (US – 2010)D was incarcerated for a previous crime, read his Miranda rights again and interrogated about a separate crime (crime2) – D immediately invoked his right to counsel. D was released back into the general prison population. 2.5 years later D was read his Miranda rights and interrogated about crime2. D waived his rights and implicated himself. The Court held that the break in custody was sufficient to allow the State to re-initiate the questioning. RULE: If suspect invokes his right to counsel, officers can try to re-initiate questioning without counsel only after a 14 day break in custody (if suspect is back in custody).Note: the release back into the general prison population was sufficient to satisfy the break in custody requirement. Although being incarcerated is being in custody, it was for a different crime, D resumed his normal prison-lifestyle and the interrogators had no control over how long he remained in prison as a result of the previous crime.Edwards does not apply to the initial decision on the part of a suspect to waive his right to counsel. The initial waiver is judged on a “knowing and intelligent” basis. Similarly, the Edwards decision presumably has no effect on the situation where the suspect initially waives the right to a lawyer, but asserts a desire not to undergo questioning; this is Mosley. Request must be unambiguousEdwards only applies where the suspect clearly asserts his right to have counsel present during a custodial interrogation. RULE: If the suspect makes an ambiguous invocation of a right – which a reasonable observer would think might or might not be a request for counsel (or other right) – the questioning does not have to stop. Police do not even have to (though they may) ask clarifying questions to determine whether the suspect really does want a lawyer.Davis v. US (US – 1994)D, while in custody, was interrogated about a murder in which he is a suspect. About an hour and a half into the interview, D says, “Maybe I should talk to a lawyer.” The agents doing the questioning indicate that if D wants a lawyer, they will stop and ask him to clarify whether he wants a lawyer or not. He then says, “No, I’m not asking for a lawyer.” The interrogation continues, and D makes incriminating statements. The Court upheld the continued questioning and the statement admissible. They stated questioning need only stop when it is clear to a reasonable police officer in the circumstances would understand the statement as a request for an attorney.Berghuis v. Thompkins (US – 2010)D was arrested, brought to a police station, read his Miranda rights and was interrogated. D did not expressly invoke any of his rights but remained mostly silent responding with “yes” or “no” occasionally. When asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered yes but refused to give a written confession.The Court allowed the statement, and held that the invocation of a right must be unambiguous. Furthermore, the act of responding to the officers’ questions surrendered the right to remain silent.RULE: The law may presume that an individual who, with a full understanding of his rights, acts in a manner inconsistent with those rights, he has made a deliberate choice to relinquish the protection those rights afford.Evidence from non-Mirandized confessions not fruit of the poisonous treeA confession obtained in violation of Miranda which furnishes the police with leads to additional evidence or witnesses will virtually never be treated as tainted fruit.US v. Patane (US - 2004)Police acted on a tip that D, a convicted felon, illegally possessed a Glock pistol. They arrested D at his house for a different offense. One of the officers began reading D his Miranda rights, but D cut him off saying he knew them. The officer asked D about the Glock and D told the officer where it was; D retrieved and seized the Glock.Although the Miranda warnings were insufficient (they were never completely read to D) and therefore the statement (where the gun was) was inadmissible to due to the invalid warning, the gun itself was admissible. The Court held evidence obtained as a result of a non-Mirandized statement was not fruit of the poisonous tree.Can second confession be fruit of the poisonous tree?This issue arises when a non-Mirandized confession (or implicating statement) is made, the officer gives the suspect his Miranda warnings, and the suspect repeats the implicating statement.The second confession will not be deemed tainted as long as it was “voluntarily made,” and the Court will presume that the second confession is indeed voluntary if made after warnings, even though that confession followed an earlier unwarned confession.The second confession is more likely to be deemed to be voluntarily made if the underlying circumstances do not make that second confession a mere continuation of the first (e.g., the second is more likely to be found voluntary if the two were meaningfully separated by time, place, or interrogator, or if it was made clear to the suspect that the first, unwarned, confession would not be admissible).The second confession is likely to be deemed tainted if the failure to warn prior to the first confession was the result of an inadvertent mistake by the police.But where police follow an intentional two-step practice of eliciting an unwarned confession, then immediately giving a warning under circumstances that lead the suspect to believe that even the already-made confession can be used against him (so that the suspect sees no reason not to repeat the confession after the warning), the second confession will probably be deemed involuntary and thus tainted.TEST: To determine whether the 2nd confession is admissible apply an objective analysis: whether, from the suspect’s point of view, under the circumstances, would a reasonable person in the suspect’s position not have understood the Miranda warnings to convey a message that the suspect retained a choice about continuing to talk.Missouri v. Seibert (US – 2004)D’s son, who had cerebral palsy, died in his sleep; D’s 2 other sons planned to cover it up (they feared D would be prosecuted for neglect) by burning his body in their mobile home with Donald, a mentally ill teenager living with them, in the home so it would not look like the son was left by himself; Donald died in the fire.5 days after the fire, police awakened D at 3am at a hospital; intentionally refrained from giving her Miranda warnings, transported her to the station where officer1 interrogated her without her warnings. D confessed the plan was to left Donald die; officer2 gave D a 20-minute break gave D her Miranda warnings. D resisted repeating her statement but gave in.The Court held the 2nd confession should not have been admitted as the conscious decision to question first threatened to thwart Miranda’s purpose of reducing the risk that a coerced confession would be given.Sixth AmendmentThe Right to CounselThe 6th Amendment right to counsel is triggered by the initiation of formal judicial proceedings. This should be distinguished from the right to counsel to ensure protection of the 5th Amendment right to avoid self-incrimination which is triggered by custodial interrogation by law enforcement.The 6th Amendment right to counsel is charge specific whereas the 5th Amendment right to counsel is not.If the suspect has not been charged or arraigned, the 6th Amendment does not apply.Massiah v. US (US – 1964)An indicted defendant, while out on bail and in his co-defendant’s car, made incriminating remarks which were overheard by the police via a concealed radio transmitter planted with the co-defendant’s cooperation. The incriminating statements here held inadmissible.The Court held that the overheard conversation was in effect a surreptitious investigation; the opinion stated the concurrence in Spano applied as forcefully to an undercover use of police tactics as it did to a jailhouse interrogation. Therefore the right to counsel applied, and the confession must be barred.The concurrence is Spano stated that when a suspect has been indicted by the time of questioning, he has the right to counsel at a police interrogation conducted during the period of when the arraignment should have taken place because an indicted suspect has the right to counsel at the arraignment which should immediately follow the indictment.RULE: If the suspect has been indicted, the suspect has the right to counsel during any police interrogation – whether that takes place at the jailhouse or out on bail using undercover police tactics.Brewer v. Williams (US – 1977)D was suspected of murder, turned himself in in Davenport, read his Miranda rights and was being driven to his lawyer (at the Des Moines police station) by police. D spoke with his lawyer before the ride who advised him not to say anything on the drive. Before the drive, the cops driving D agreed with D’s lawyer they would not question him until he had spoken with the lawyer in person. D then stated several times he would tell the police the whole story when he returned to Des Moines and was with his lawyer.The police knew D was very religious and mentioned the victim deserved a Christian burial – D subsequently lead them to the body, implicating himself. The prosecution wanted to introduce the fact the body was where D said it would be at trial. The Court held that D had not waived his right to counsel because the state failed to show that D had intended to relinquish his right to counsel.The Court reasoned that although D had been informed of and seemed to understand his right to counsel, it was not shown D intended to waive these rights. Conversely, D sought out a lawyer in Des Moines and in Davenport to speak with prior to the ride and both instructed the police not to interrogate D. The clearest indication of D’s lack of waiver was that D told the police “he would tell them the whole story after consulting with his lawyer in Des Moines.Note – Applicability to Miranda cases: Although the Court decided Brewer as a right-to-counsel case, rather than as a Miranda case, presumably the test of a valid waiver of Miranda rights would be the same as in Brewer. Thus the prosecution must show that the defendant not only understood his right to remain silent, etc., but that he intended to relinquish that right.Fruit of the poisonous tree and the 6th Amendment right to counselBrewer v. Williams states that the fruit of the poisonous tree doctrine applies much to the same effect as it does with the 5th Amendment Miranda rights.Charge specificThe 6th Amendment right to counsel is charge specific – it cannot be invoked once for all future prosecutions. This means that although the right has attached for a charge of burglary because formal charges have been brought, if evidence of a separate crime, e.g., money-laundering, is discovered, the 6th Amendment right to counsel does not bar police from questioning the suspect about the money-laundering but it does bar the police from asking about the burglary.To determine whether an act constitutes two acts or one (i.e., if they are closely related), the test is whether each charge requires proof of a fact which the other does not. Example: In Cobb, burglary requires entry into a building whereas capital murder requires the murder of more than one person during a single criminal transaction.Texas v. Cobb (US – 2001)Cobb was suspected for burglarizing a house and murdering a mother and child who were inside at the time. Cobb confessed to the burglary but denied any involvement in the murder (and disappearance) of the mother and child. Cobb was charged with burglary, appointed an attorney, and out on bail. Cobb confessed to his father that he murdered the mother and child. The father reported this; the police obtained an arrest warrant and Cobb was arrested and read his Miranda rights. Cobb then confessed to the murders and revealed where he buried the bodies.The court admitted the evidence because Cobb was read his Miranda rights and because he had not been formally charged with the murders, the 6th Amendment right to counsel had not attached regarding that charge. (1) Waived Miranda’s right to counsel by volunteering a confession, (2) no 6th Amendment right to counsel for murders had attached yet because he had not been formally charged, and (3) the 6th Amendment right to counsel regarding the burglary did not bar police from asking Cobb about the murders because that counsel appointment was for a different charge.Jailhouse informantsThe State violates a defendant’s 6th Amendment right to counsel if it places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversion with the defendant about the crime charged.Note that an established deal between the informant and the State is not necessary; it is mere cooperation by the informant that renders the informant an agent of the State.RULE: The informant must make some effort to stimulate conversations about the crime charged for there to be a violation; simply eavesdropping or receiving unsolicited information is not a violation.Randolph v. People of the State of California (9th Cir. – 2004)Randolph was charged with murder but was placed in jail awaiting his second trial after the first ended in a hung jury. M shared a cell with R throughout most of the first trial and for several weeks after. M went to police asking for leniency if he gave them information on R. M didn’t know much then but went back looking to get more information from R. R made incriminating statements to M who in turn gave them to the police. The court remanded for fact-finding as to when M received the incriminating evidence (before or after M met with the police) but held there would be a violation if M only received the incriminating evidence after meeting with police about leniency and then probing R. Waiver of the Right to CounselStandardsAny waiver of the right to counsel must be made knowingly and intelligently.Totality of the circumstances testIn determining whether there has been an effective waiver, the courts look to the totality of the circumstances in each case (including the defendant’s age, physical and mental condition, education and experience, in addition to the setting in which the alleged waiver occurred).Police Coercion requiredEven if the totality of the circumstances cast doubt on whether the defendant’s decision to waive the right to counsel was the product of a free and rational mind, the waiver will be upheld if there is no police coercion. Colorado v. Connelly - supraThe Court held that coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the 4th Amendment.The Court is likely to reach the same conclusion with respect to the 6th Amendment voluntariness of a waiver of the right to counsel.Miranda warnings sufficeIf the defendant is given his Miranda warnings, and does not ask for counsel, this will normally be treated as a valid waiver of the right to counsel, even though the Miranda warnings do not refer especially to 6th Amendment post-indictment right to counsel. If the suspect declines the right to counsel (e.g., before or during interrogation), the police may treat this as a waiver and interrogate him, even though the formal 6th Amendment right to counsel has attached.Waiver after pre-trial appointment of counselThe police may ask a suspect who has been formally charged and is represented by counsel whether he is willing to answer their questions, and treat his willingness to answer as constituting a waiver of his right to have his counsel present at a questioning.Montejo v. Louisiana (US – 2009)The Court overruled an earlier rule stated in Michigan v. Jackson – after Montejo, police are no longer forbidden from initiating conversion with suspects who had been formally charged or arraigned and appointed or retained counsel.SignificanceThe significance of Montejo is somewhat limited because the case does not overrule Edwards v. Arizona. So if a suspect has not only had counsel appointed for him at an arraignment or other formal proceeding but has also been given Miranda warnings during which he asserted that he wanted to have counsel, then Edwards still applies, and requires that there be no custodial interrogation unless either counsel has been appointed or the suspect initiates the encounter.Suspect not in custodyEdwards does not apply in the situation where D is not in custody (i.e., has been released) because in this instance there is no custodial setting so Miranda warnings are not required.Police may knowingly approach an indicted D outside of his lawyer’s presence and freely interrogate him if he consents, as long as they don’t do so in a custodial setting.Example: D is suspected of murdering V, taken into custody and read his Miranda rights. He asserts his right not be questioned until counsel is provided for him and until he has a chance to consult with counsel. D is arraigned on murder charges and the magistrate grants D’s request for appointed counsel. D is released on bail. The next day, officers go to D’s house uninvited. They make it clear D is not in custody and may ask the officers to leave at any time. They know D has not spoken with his lawyer yet and ask D whether he is willing to talk about the crime. D says he is and confesses without ever consulting his lawyer. Under Montejo, the confession will be admissible. There is no longer a presumption against the effectiveness of any police-initiated waiver of the 6th Amendment right. So assuming the court finds that D intelligently and voluntarily decided to speak to the police without first consulting his attorney (which the court will likely do on the facts), D will be deemed to have waived his 6th Amendment rights. Although D’s failure to initiate the conversation means that Edwards blocks the admissibility of results of any custodial interrogation, the interrogation he was not custodial so Edwards doesn’t apply. ................
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