Criminal Procedure - Santa Clara Law
Criminal Procedure Outline
**Introduction
A. Due Process and Incorporation of the Bill of Rights
1. The 4th A, 5th A, and 6th A regulations on law enforcement have been fully “incorporated” and applied to the states through the Due Process Clause.
B. The Role of the USSC
1. Supervisory authority: USSC is the reviewing court for all federal courts and will interpret and review federal law
a) Congress can change a law that the USSC has interpreted under its supervisory authority
2. Constitutional interpretation and application: USSC decides whether or not a law or action is constitutional
a) When the USSC finds that the law or action violates the Constitution, Congress can not change the law
GOVERNMENT ACTION—PROTECTS AGAINST STATE OVERREACHING
WAS THERE A SEARCH AND/OR SEIZURE? (4th A Right to be Secure Against Searches)
A. Text of the 4th A:
1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon PC, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
B. SEIZURE?
1. Person
a) Arrest—taking into custody for the purpose of answering criminal charges.
b) Detention
2. Item/Tangible Property—meaningful interference with someone’s possessory interest (Hicks)
C. SEARCH?
1. Was there a reasonable expectation of privacy?
a) Reasonable expectation
1) Legitimate expectation of privacy that society is prepared to recognize (Katz)
a) Katz v. United States [USSC; Stewart opinion; 1967] (landmark decision)
i) Earlier Cases: police action would be deemed a search if it constituted a common law trespass
ii) Holding: The 4th A protects people, not places (throws out the trespass notion).
iii) Rule: Physical intrusion is not required for an illegal search.
iv) What we get from this case is the 2 prong Harlan test:
a) For a search to occur, (1) the person must have exhibited an actual expectation of privacy (subjective) and, (2) that expectation is one that society is prepared to recognize as reasonable (objective).
b) Surveillance into the home (where it has been consistently recognized the individual has a special privacy interest) is most likely to trigger the 4th A’s protections.
i) Kyllo v. United States [USSC; Scalia opinion; 2001]
a) Facts: Suspecting that marijuana was being cultivated inside (’s home, federal agents pointed their thermal-imaging device which detects levels of heat at Kyllo’s home.
b) KYLLO 4 part TEST (if satisfied=search)
i) Sense enhancing technology,
ii) That is not in general public and
iii) Gives any info regarding the interior of the home, and
iv) This info could not have been obtained without physical intrusion.
c) Big issue: Will we eventually have no privacy because technology is so pervasive and so everything will pass the Kyllo general public prong?
2) Requisite connection to the place search that society recognizes as reasonable. (STANDING) (Minnesota v. Carter)
a) Alderman v. United States [USSC; 1969]
i) USSC said: in order to make a motion to suppress, you must show standing: i.e. your property was seized, your house was searched, or you were legitimately on the premises when the evidence was seized. (No derivative standing.)
b) Minnesota v. Carter [USSC; Rehnquist opinion; 1998]
i) Holding: No standing to challenge the search because no requisite connection to the place searched that society recognizes as reasonable.
a) This was purely commercial visit—coke dealing.
c) Can overnight guests assert a 4th A violation? Yes, under Minnesota v. Olson [1990]. Almost all social guests have standing to object to a search.
d) Possessory or property interest in the area searched or the item seized (Rakas).
i) Rakas v. Illinois [USSC; Rehnquist opinion; 1978]
a) Facts: Passengers argued they had standing to challenge the search of the car (which they did not own) and the seizure of the incriminating items (which they did not claim were theirs) because they were “legitimately on the premises.”
b) Holding: Court abandoned the “legitimately on the premises” standard because it was too broad.
c) So, new issue: “Did this particular ( have a reasonable expectation of privacy that was infringed on?”
d) Applying this analysis, the Court concluded that the search of the car did not violate the rights of the passengers, who asserted neither a property interest in the place searched nor in the items seized, and thus had no expectation of privacy.
ii) Rawlings v. Kentucky [USSC; 1980]
a) The Court held that because ( had no reasonable expectation of privacy in the place searched (the girl’s purse), his rights were not implicated.
b) No reasonable expectation of privacy
1) Conversations with 3Ps, unreliable ear doctrine (White)
a) United States v. White [USSC; White plurality opinion; 1971]
i) Bottom Line: False Friends doctrine is constitutionally ok; the police do not need a warrant and this is not a search when transmitting the conversation.
ii) Rationale:
a) Katz doesn’t apply here because the ( did not have a justifiable and constitutionally protected expectation that a person with whom he talks with will not then or later reveal the conversation to the police.
iii) The critical factual distinction between White and Katz is that White chose to talk to someone else whereas Katz did not.
a) The “uninvited ear” in Katz vs. the “unreliable ear” in White
2) Pen Registers and Bank Records (Smith; Miller)
a) An individual who imparts financial info to a bank in the usual course of business (United States v. Miller), or who automatically conveys the numbers he dials to the telephone company for billing purposes (by means of a pen register) (Smith v. Maryland), has no reasonable expectation of privacy in such information.
b) By the same logic, a trash collector may turn one’s garbage over to the police at their request, and evidence of crime found therein is not subject to 4th A challenge.
3) Open Fields (Oliver)
a) Oliver v. United States: “Open fields do not provide the setting for those intimate activities that the 4th A is intended to shelter from gov’t interference or surveillance.” (Only homes and curtilage get 4th A protection)
4) Areas within plain view even if it is in curtilage (Criaolo)
a) Even if an area is within a traditionally protected setting, 4th A protection may be lost by application of the privacy expectation concept, as illustrated by the aerial surveillance cases.
b) California v. Ciraolo [USSC; Burger opinion; 1986]
i) Holding: naked-eye observation of a fenced-in back yard (deemed within the home’s curtilage) from an aircraft at 1,000 feet did not constitute a “search” because in “an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from such observation.”
c) Nor was the 4th A implicated when police flew by helicopter 400 feet over (’s partially covered greenhouse (located next to his mobile home) and made naked-eye observations of marijuana plants inside. Florida v. Riley. The Court concluded that no search had occurred because a member of the public could have similarly positioned himself in an aircraft and made the same observations through the uncovered sections of the roof.
d) United States v. Dunn (distinction between open fields and curtilage)
i) 4 factors that define curtilage:
a) Area’s proximity to the home
b) The existence of an enclosure around the area
c) The nature of the use to which the areas is put; and
d) The precautions taken to exclude others from the area
e) USSC has provided more protection against tactile examinations than visual observations.
i) Bond v. United States [USSC; Rehnquist opinion; 2000]
a) Facts: A customs agent boarded a greyhound bus and squeezed (’s carry-on canvas bag. Upon feeling a brick-like object, he asked for and obtained consent to search, revealing methamphetamines. **Important that the agent squeezed and manipulated the bag
b) Rule: Physically invasive inspecting is simply more intrusive than purely visual inspection and therefore this case is different than Ciraolo and Riley and this amounts to an illegal search
5) The dog smell of one’s luggage (Place)
6) The dog smell of one’s car (Caballes)
a) Where the device merely enhances sensory perception and facilitates surveillance that otherwise would not be possible without the enhancement, the 4th A is not implicated. (Examples: flashlight, an aerial camera, photographic or video recording, a drug-detection dog (United States v. Place--luggage, Illinois v. Caballes –car because dog sniffs are sui generis and only reveal the use of narcotics), and field tests for narcotics.)
IF THERE WAS A SEARCH AND/OR SEIZURE, WAS IT REASONABLE? (PC and Warrants)
A. Introduction to PC
1. The standard for reasonableness of a search or seizure is PC.
2. Different showings are required for arrest and search situations:
a) For arrests( PC requires that there be a certain quantum of likelihood that (1) that particular individual (2) has committed or is committing a particular offense.
b) For searches(PC requires that there be a certain quantum of likelihood hat (1) something that is properly subject to seizure by the gov’t, i.e. contraband or fruits, instrumentalities, or evidence of a crime, (2) is presently (3) in the specific place to be searched.
c) “Stalement” Issue: important to have current information
1) This is less of an issue for an arrest than for a search
a) In an arrest, if you have PC to arrest, the evidence won’t diminish unless they’re exonerated
b) More of an issue in a search situation because the evidence could be moved, destroyed, etc. (Ex.: the bag of coke could get sold, used, etc. before the police officer got there)
3. PC? There must be concrete facts and circumstances known to the officer that can be articulated and measured against an objective standard.
a) Illinois v. Gates [USSC; Rehnquist opinion; 1983]
1) Aguilar/Spinelli Test:
a) 2 prongs: veracity prong (credibility and reliability) and the basis of knowledge prong.
i) Veracity prong(Why should I believe you?
ii) Basis of Knowledge prong( How did you get this info?
iii) Example: The informant is credible because I’ve used this person for the last year on X, Y and Z occasions and the info has proven to be accurate OR informant is reliable because he says he personally bought the drugs or other contraband
iv) Corroboration can rehabilitate the basis of the knowledge or veracity
2) Rule: The two prong test from Spinelli is too rigid and keeps the issues too separate. Instead the veracity or reliability and the informant’s basis of knowledge are better understood as relevant considerations in the “totality-of-the-circumstances” analysis; a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
3) The revised standard is PC is a fair probability that a person or contraband will be present in a particular place at a particular time or that a particular person committed the crime.
4. Maryland v. Pringle [2003]
a) Court held that is was “entirely reasonable inference from these facts that any or all three of the occupants of the car had knowledge of, and exercised dominion and control over, the cocaine” PC was reasonable.
5. Whren v. United States [USSC; Scalia opinion; 1996] (where an officer has PC justifying a particular intrusion, the fact that the officer may have acted for ulterior reasons is irrelevant; i.e. the objective facts, not the subjective intent of the officer define PC.
B. WARRANT REQUIRED?
1. Search of Home—Warrant Required Johnson v. United States [USSC; Jackson opinion; 1948]
a) Facts: Under Gates, there was a fair probability amounting to PC that opium was in the home, especially when coupled with the opium’s obvious smell.
b) Rule: Searches in a home without a warrant are per se unreasonable due to the sanctity of the home and it is constitutionally preferable to have a neutral and detached magistrate to review the PC.
2. Public Arrest v. Entering Home
a) United States v. Watson [USSC; White opinion; 1976]
1) Rule: Felony arrests can be made without a warrant, as long as the arrest takes place in public and as long as there is PC to arrest.
2) Rationale: The Court doesn’t want to curtail law enforcement efforts to “ferret out crime.”
b) Atwater v. City of Lago Vista [USSC; Souter opinion; 2001]
1) Same rule for misdemeanor arrests as felonies.
2) Does a misdemeanor arrest have to be in the presence of a police officer?
a) FN 11: “We need not, and thus do not, speculate whether the 4th A entails an ‘in the presence’ requirement for purposes of misdemeanor arrests.”
b) But, the holding here, is confined to misdemeanor in the presence of the police officer. CA has an “in the presence requirement.”
3. Arrest in the Home: Payton—Need an arrest warrant to arrest in home
a) Payton v. New York [USSC; Stevens opinion; 1980]
1) The police officers must have an arrest warrant to search the suspect’s home for the suspect. Need PC to make an arrest, not for the search.
2) Need reasonable belief (equivalent of PC) to believe the suspect is home.
3) This arrest warrant is less invasive than a full-blown search of a home (at the point at which an arrest is made, Chimel takes over and limits the search to the wing-span)
b) What if Riddick had been arrested on his front-porch?
1) United States v. Santana [1976]
a) Held: A suspected felon who stood precisely on the threshold of the front door of her home was subject to warrantless arrest under the Watson holding. According to the Court, Ms. Santana “was in a ‘public’ place” for purposes of the 4th A, “not in an area where she had any expectation of privacy…She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her home.”
b) The case seemed to turn on the fact that Ms. Santana was very visible to the sidewalk.
C. IF THE WARRANT WAS REQUIRED, WAS THE REQUIREMENT MET?
1. Valid?
a) PC (Illinois v. Gates)
b) A neutral and detached magistrate must determine PC (Johnson)
c) The warrant must describe with particularity the place to be searched and the items or persons to be seized. (Andersen)
2. Particularity Requirement: The warrant must describe with particularity the place to be searched and the items to be seized and leave nothing to the discretion of the officers.
a) Andresen v. Maryland [USSC; Blackmun opinion; 1976]
1) Facts: Warrants said: “together with other fruits, instrumentalities and evidence of crime at this time unknown.”
2) Majority said this language was not overly general because the contested phrase could get a limited interpretation.
b) Is there a bright-line rule for how particular a warrant must be?
1) No. Particularity is measured on a sliding scale(more complex the case, less particular vs. a robbery where the victim says my diamond ring, watch, and $10K were stolen, the warrant would need to state all of these specific things. (Warrant couldn’t say “search for items stolen from victim.”
c) Groh v. Ramirez: There was a very detailed application for the warrant, but no specifics in the warrant itself. This fails the particularity requirement, but there can be incorporation by reference.
d) Anticipatory warrants are valid so long as there is PC that the triggering condition will occur and that the occurrence of the triggering condition creates PC. (United States v. Grubbs [2006]).
3. Was it properly executed?
a) Right house and/or right person?
1) Good faith mistake allowed (Garrison) but not reckless error (Franks v. Delaware)
a) Maryland v. Garrison [USSC; Stevens opinion; 1987]
i) Facts: The warrant authorized a search of McWebb and his third floor apartment. The officers believed at the time and represented to the magistrate that there was only one apartment on that floor. However, there were two separate apartments on the third floor. Without realizing this, the officers searched both apartments and discovered contraband in Garrison’s.
ii) Court held this good faith mistake was ok because PC doesn’t require certainty only a fair probability.
b) What if the officers actually knew that the warrant was not specific enough or was false?
i) If the officer displays reckless disregard for the truth or intentionally lied, then that will render even a validly executed warrant invalid. (Franks)
2) May detain a person in the house, but no search if not named.
3) Cannot enter a 3rd party’s house for an arrest warrant for someone who does not live there without a search warrant. (Steagald).
a) Steagald v. United States [USSC; Marshall opinion; 1981]
i) Rule: Need a search warrant to look for a suspect in another person’s house and an arrest warrant for the suspect.
ii) Majority opinion:
a) The Warrant didn’t cover Mr. Steagald’s rights, but covered only Lyons’ rights.
b) Armed solely with an arrest warrant for a single person, the police could search all the homes of that individual’s friends and acquaintances.
b) Would an arrest warrant for a roommate be enough to search the house?
i) Yes, under United States v. Ramirez, but that’s a 9th Circuit case. The USSC hasn’t ruled on this issue. Would tend to say that the suspect does in fact live at the residence and so a search warrant is enough.
c) What about an overnight guest? The USSC hasn’t ruled on this either. We know from Minnesota v. Olson that an overnight guest has standing to object, but does that turn the guest into a householder and give him extra protection?? Open question.
b) Knock Notice (Wilson)
1) Wilson v. Arkansas [USSC; Thomas opinion; 1995]
a) Rule: the 4th A incorporates the CL requirement that police knock on a dwelling’s door and announce their identity and purpose before attempting forcible entry.
b) Holding: It is unreasonable for officers to not knock and announce before executing a search warrant. Failure to do so will render it unreasonable. (ER isn’t implicated though.)
2) Cannot have a per se exception to the knock notice rule, but RS of exigency or futility will justify dispensing with the requirement. Example: State cannot say “in all drug cases due to the inherent nature of the drugs being easily destroyed, knock and announce isn’t required.” Richards v. Wisconsin [1997]
a) People v. Ramirez [1998]
i) The 9th Circuit held that “heightened standard” beyond RS governs unannounced entries “when property is destroyed.” But, the USSC rejected this view. RS is all that is needed whether property is destroyed or not.
ii) But, when a cop busts in a door, the Court will look into the reasonableness of the entry into the home, with the destruction of property in mind.
3) Time required before entering after knock and announce is determined by the totality of the circumstances (i.e. size of the house, nature of the offense, and known circumstances)
a) Banks: 15-20 seconds was reasonable.
4) The ER doesn’t apply to situations where the police violate the Knock-Notice Rule. (Hudson)
5) New York v. Harris p. 1061
a) Arrested in his home, but without a warrant.
b) Because the police had PC to arrest the (, he was not unlawfully removed from his front yard to the police station.
c) The statements that flow from an illegal arrest are admissible.
6) Michigan v. Hudson [USSC; Scalia opinion; 2006]
a) Knock notice is a command of the 4th A; but the knock and announce rule is to protect people from being barged in on in their home and there is a direct link in the chain that the violation of knock notice caused them to find the evidence.
b) Rule: Court creates a new segment of the attenuation doctrine(if the purpose behind the protection is not related to the evidence being found then the evidence is admissible because it’s ineffective and lacks much sense to apply the ER.
c) The guns and drugs were pursuant to the warrant, not pursuant to the violation of the knock and announce.
d) We’ve never applied the ER when the social costs outweigh deterrence, but Weeks held that allowing this evidence in destroys the 4th A.
D. IF THE WARRANT REQUIREMENT IS NOT MET, IS THERE AN EXCEPTION?
1. Search Incident to Arrest:
a) The basic prerequisite for such a search is that the underlying arrest be lawful; i.e. based, based on PC to believe the subject has committed a crime and, in the case of an arrest in a private building that there be a valid arrest warrant.
b) Chimel v. California [USSC; Stewart opinion; 1969]
1) Rule: A search is deemed incident to an arrest only if it is substantially contemporaneous with it, and confined to the immediate vicinity of the arrest.
2) Holding: Wing-span searches (limited to the area of the suspect’s immediate control) are allowed incident to arrests and no PC is needed for the search, just for the arrest.
3) Rationale:
a) This wing-span search is reasonable in order to protect (1) officer’s safety, and (2) to prevent the destruction or concealment of evidence.
4) Can an officer open a drawer 3 ft. away from the suspect? Yes, because there is a danger that the suspect will reach for a gun.
a) What if the drawer is locked? Lower courts are split on this issue. (Argue both ways.)
b) What if the suspect is already handcuffed? Lower courts are split.
5) What if the officers find something suspicious in the drawer in plain view?
a) The Officers don’t need PC to do a wing-span search of an area, but once the POs find something, there must be PC that the item is contraband.
c) United States v. Robinson [USSC; Rehnquist opinion; 1973]
1) Facts: After arresting him, the officer began a pat down search. He felt an object in the left breast pocket of the heavy coat ( was wearing, but couldn’t tell what it was. Then the officer reached into his pocket and pulled out the crumpled up cigarette packet. The officer knew it wasn’t cigarettes, but wasn’t sure what it was, so he opened up the pack and found heroin.
2) Holding: It is a reasonable search, to search for weapons.
3) Rationale: The majority disagrees with the C of A’s reading of Chimel and says that the possibility of discovery of evidence or officer safety weren’t the only reasons supporting the authority for a full search incident to a lawful arrest.
d) What if the suspect just got a citation, no possibility of jail time?
1) Knowles v. Iowa [1998]: Court addressed the constitutionality of searching an individual incident to the issuance of a citation for a speeding. The ( challenged the search, claiming that the “search incident to citation” violated the 4th A. The USSC unanimously agreed. In sum, the Court “declined” to extend the “bright-line rule” of Robinson “to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all.”
e) New York v. Belton [USSC; Stewart opinion; 1981]
1) Holding: Officers were permitted to search the pockets of this jacket because the articles were within the area of the automobile that the arrestee could reach in order to grab a weapon or evidentiary item.
2) Police officers can’t search the trunk, under this holding, but can search any containers whether open or closed in the car. But, this search must be contemporaneous with the arrest. (Here, 20 minutes was contemporaneous.)
3) This is a major extension of Chimel: this now allows officers to dispense with PC and search warrants when there really isn’t any danger to them or danger of destruction or concealment of evidence.
f) Thornton v. United States [2004]
1) Even though the officer had approached him after he had gotten out of his car and had searched the car after he had been handcuffed and placed in a police car, the search was deemed reasonable under Belton.
2) Scalia wrote an important concurring opinion saying that the searches authorized by Belton can honestly by justified only by a more general “evidence-gathering” rationale—i.e., “because the car might contain evidence relevant to the crime for which the occupant had been arrested.”
a) He would have limited the searches to where it is “reasonable to believe that evidence relevant to the crime for the arrest might be found in the vehicle.”
g) Washington v. Chrisman [1982]
1) Held: an officer could enter the dormitory room of an arrested student without a warrant because “it is not ‘unreasonable’ under the 4th A for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest.”
2) *The Court has not decided whether Chrisman would apply if an officer requested or commanded an arrestee to enter a private area.
2. Exigent Circumstances
a) Types of exigencies:
1) Search incident to arrest (given its own classification)
2) Automobile exception (own classification)
3) General exigencies (i.e. hot pursuit)
b) Need to identify the exigency with precision and immediacy. (Hayden)
1) Warden, Maryland Penitentiary v. Hayden [USSC; Brennan opinion; 1967]
a) Rule: If the officers are acting on a reasonable belief that the suspect will escape or evidence will be destroyed, they may enter the house without a warrant under the exigency. Then, while they are searching for the suspect, any evidence found in plain view is admissible. But, the officers are not allowed to search the whole house generally.
b) The point at which the police officers discover the suspect, unless they have reason to believe there are other dangerous persons in the house, the search then becomes a search incident to arrest and is limited to that.
2) *Pursuit needs to be immediate to fall under the exigent circumstance of hot pursuit.
c) Minnesota v. Olson [1990]: The gravity of the crime and the likelihood that the suspect is armed must be considered as factors in assessing the urgency of the situation.
1) Requires a fact-specific analysis to determine whether resort to the warrant process was truly impracticable.
a) Need PC to believe that there is a:
i) Imminent destruction of evidence
ii) The need to prevent a suspect’s escape
iii) Risk of harm to police or others inside or outside the dwelling
b) Need either hot pursuit or one of the three factors above to have an exigency.
d) Warrantless entry into a dwelling may not be permissible even under exigent circumstances where the suspect is sought for minor crimes.
e) Welsh v. Wisconsin [1984]
1) Facts: Police entered the suspect’s home and arrested him for the non-criminal offense of drunk driving.
2) The Court refused to sanction the circumvention of the warrant process under those circumstances.
a) It did not matter to the Court that evidence was in fact being destroyed as his blood alcohol level dissipated with each passing minute. (Civil forfeiture is just not enough to justify a warrantless entry into the home.)
3) “Home entry should rarely be sanctioned when there is PC to believe that only a minor offense has been committed.”
f) People v. Thawson [CASC; 2006]
1) In CA, drunk driving is a misdemeanor with jail time. Because of the possibility of jail time and the destruction of evidence as the blood alcohol level dissipated, the CASC ruled that the police officers were allowed to enter the house without a warrant.
g) Vale v. Louisiana [USSC; Stewart opinion; 1970]
1) *Police officers are allowed to do protective sweeps of homes to see if other people are there, but need RS to believe that they are present in the house.
2) Rule: Not an exigent circumstance if the police officers could easily have gotten a search warrant for the home.
3) Why wasn’t this an exigent circumstance?
a) The officers were able to procure two warrants for Vale’s arrest. There is no reason that they couldn’t have gotten a search warrant as well.
b) The dissent disagrees though, and feels that the search was exigent since other people could destroy the evidence. For example, his drug trade partner already swallowed some of the drugs. Also, his mother and brother showed up.
c) However, majority argues no exigency because Vale couldn’t have destroyed the evidence himself since he was already in custody.
4) Are the cops allowed to detain people in order to secure a warrant?
a) Yes. Illinois v. McArthur (refusal to allow ( to enter residence without a police officer until a search warrant was obtained was a “reasonable seizure” that did not violate 4th A). The officers may seize the premises and not let anyone in or out, and then get the warrant to search.
h) Community Caretaking Function of the Police
1) Mincey v. Arizona [1978]
a) The Court rejected the argument that the exception justified an extensive four-day warrantless search of a homicide scene. Not questioning the right of police to make warrantless entries and searches when they reasonably believe a person inside is in need of immediate aid (dire medical treatment) or when they come upon a homicide scene and promptly survey the immediate area for victims or the perpetrator, the Court concluded that the search far exceeded the necessities of the moment: “All the persons in Mincey’s apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search.”
b) Court refused to create a “murder scene exception” that allows a general search every time a murder happens. When the community caretaking activities morph into an investigative search, there must be a search warrant.
3. Automobile Exception
a) Need PC to believe that evidence is contained therein (Chambers; Acevedo)
1) Carroll v. United States [USSC; 1925] (bootleg case…first to give automobile exception)
a) Court authorized warrantless search where the officers have PC to believe there was contraband or other evidence of criminal activity in the vehicle.
b) This decision was premised on the rationale that, given their mobility, cars are not likely to remain in place while police seek a warrant and so the search of the car had to happen at that moment or else the evidence would have driven away.
2) Chambers v. Maroney [USSC; White opinion; 1970]
a) Facts: The occupants were arrested and the car was driven to the police station at night (and searched at the station). The police found concealed in a compartment under the dashboard two .38-caliber revolvers, etc.
b) Held: Warrantless search of a car that had been stopped on the road, but was searched subsequently at the police station after it had been seized and its occupants taken into custody was constitutional.
c) Rationale: Since the police had PC to believe the car contained evidence of a recent robbery, and thus could have lawfully searched it on the road, it was constitutionally permissible to conduct the delayed search as well.
b) Vehicle is broadly construed—must be readily mobile. (Carney)
1) California v. Carney [USSC; Burger opinion; 1985]
a) Issue: Does the automobile exception apply to a mobile home that is in a mobile home park, but not fixed to the ground?
b) Holding: Automobile exception applied to this mobile home because it was more like a car than a home.
c) Majority opinion:
i) This mobile home involved special facts(it could be turned and driven away. It also wasn’t in a place generally used for residential areas. There is a diminished expectation of privacy in cars due to the fact that cars are subject to licensing and a lot of regulations and lots of contact with the gov’t.
d) It is important when dealing with mobile homes to look at the use of the motor home (full time residence vs. mobile home).
i) Some factors to use: see if the home is connected to utilities and if it is licensed and whether it’s close to a public road.
ii) If the mobile home is used as both a home and a car, then it can be searched without a warrant under the automobile exception.
e) But, if the mobile home is broken down and the officers know that, then the automobile can’t be searched under the automobile exception because it is no longer inherently mobile
c) Containers within the vehicle can be searched if the police have PC to believe that evidence of a crime is within the container (Acevedo)
1) United States v. Chadwick [USSC; Burger opinion; 1977]
a) Facts: The guys took the contraband out to the trunk of a waiting car at the Boston train station. At that point, while the trunk of the car was still open and before the car engine had been started, the officers arrested all three guys. A search disclosed no weapons, but the keys to the footlocker were apparently taken from one of the guys.
b) Majority opinion: No; there was no need shown for an immediate search.
c) The Gov’t asks the Court to abolish the warrant requirement for all situations outside of the home. The Court emphatically rejects this idea and says that warrantless searches and seizures are still per se unreasonable.
d) The Gov’t also mentions search incident to arrest, but the Court says that there was no exigency and that the footlocker wasn’t in the immediate control of the suspects because it had a lock which locked up the evidence and therefore it couldn’t be destroyed.
e) Are privacy interests less in a car than in containers? Yes. The Court finds a greater expectation of privacy in what you put in your luggage vs. your car.
f) Dissent: Justice Blackmun asserts that officers could have conducted a legitimate warrantless search of the footlocker if they had waited “until the respondents had started to drive away,” or, alternatively, if they had “made a search of it at the time and place of the arrests.”
2) Arkansas v. Sanders [1979]: Court dealt with the first of Justice Blackmun’s two alternatives. Here, police developed PC to believe that a green suitcase contained marihuana. They watched as the ( and a cohort loaded the suitcase into the truck of a taxicab. When the taxicab drove away, the officers pursued and stopped it. They opened the trunk and then opened the suitcase without a warrant. The Court observed first that it was “presented with the task of determining whether the warrantless search of the suitcase fell on the Chadwick or the Carroll/Chambers side of the 4th A line.”
a) A majority concluded that there was “no justification for the extension” of the automobile doctrine “to the warrantless search of one’s personal luggage merely because it was located in an automobile.” Consequently, they held “that the warrant requirement of the 4th A applies to personal luggage taken from an automobile to the same degree as it applies to such luggage in other locations.”
3) California v. Acevedo [USSC; Blackmun opinion; 1991]
a) Facts: With PC to believe that a paper bag in Acevedo’s car contained narcotics, but lacking cause to search the rest of the car, officers stopped the car, seized the bag, and opened it.
b) Holding: Court adopts a bright-line rule. Police may search an automobile and any containers within it when they have PC to believe contraband or evidence of crime is present anywhere inside it.
c) The only remaining limit on scope of the permissible search derives from the size and shape of the items sought—police may search only where such items may be hidden.
4) *The Chadwick rule that requires warrants to search containers is still good law.
d) Automobile Parked in private places may not fall within the exception
e) Coolidge—turned on no exigency
1) Coolidge v. New Hampshire [USSC; Stewart opinion; 1971]
a) Facts: ( was suspected of murder and his two cars were impounded. One was searched three times over a period of a year or so.
b) Holding: The automobile exception doesn’t apply in this case to allow a warrantless search because Coolidge was cooperating, not fleeting, and the car was in police custody for over a year and so a warrant could have been secured. No inherent exigency just because the case involved a car.
c) Rationale: *FN: 20(The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose.
d) Does an automobile have an inherent exigency?
i) “The word ‘automobile’ is not a talisman in whose presence the 4th A fades away and disappears.” Need, then, an extra exigency above and beyond the automobile in and of itself.
2) Texas v. White [USSC; per curiam opinion; 1975]
a) Rule: No special circumstances or exigency required to search the car at the station without a warrant.
b) Difference of opinion between the majority and the dissent in what Chambers held:
i) Majority: In Chambers, it was held that police officers with PC to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant.
ii) Dissent: Chambers didn’t hold what the majority says it did(instead it held that the police officers with PC to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant when it was reasonable to take the car to the station house in the first place. (Here, the arrest took place at 1:30 p.m. ….no indication that an immediate search would have been either impractical or unsafe for the arresting officers.)
3) BUT: Labron and Kilgore made clear that ready mobility creates an inherent exigency.
4) Kilgore: Car parked on private property of another.
a) Pennsylvania v. Labron and Pennsylvania v. Kilgore [1996]:
i) In a brief per curiam opinion, the USSC reversed the holdings in both cases, declaring that the Pennsylvania Supreme Court’s conclusion that “the 4th A…requires police to obtain a warrant before searching an automobile unless exigent circumstances are present…rested on an incorrect reading of the automobile exception.” “If a car is readily mobile and PC exists to believe it contains contraband, the 4th A thus permits police to search the vehicle without more.” (USSC says that the car’s mobility alone provides the exigency.)
f) Other’s Belongings: Houghton—Police with PC to search a car may inspect passenger’s belongings in the car where someone was capable of concealing the objects of the search.
1) Wyoming v. Houghton [USSC; Scalia opinion; 1999]
a) Facts: A guy and two female drivers were stopped for speeding and driving with a faulty brake light. After the guy admitted to having a syringe for drugs, the officer searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which one of the girls claimed it was hers. The purse had drugs in it.
b) Held: It does not matter that the container in question is known to the officer to be the property of a passenger not suspected of criminal activity.
c) Rationale: Given the reduced expectation of privacy with regard to property transported in cars, officers with PC to search a car may inspect a passenger’s belongings as long as they are capable of concealing the object of the search.
4. Inventory Searches
a) Automobiles: Legal impoundment and standard procedures
1) South Dakota v. Opperman [USSC; Burger opinion; 1976]
a) Facts: Car was impounded. The officer observed a watch and other personal items and then ordered that an inventory be taken of the whole car. During that inventory, they found marijuana in an unlocked glove compartment.
b) Rule: For inventory searches no PC or warrant is required.
c) Majority:
i) Employs a balancing: there are 3 primary interests to be protected(
a) Protection of owner’s property;
b) Protection of police from claims of stolen or lost property;
c) Protection of police safety
ii) These three interests outweigh the privacy interests of the car owner, and thus, the warrantless search is allowed.
iii) What justifies this balancing over the per se rule of warrants?
a) This is a non-criminal context; not an investigation of a crime where PC and a warrant is necessary. Rather this is merely an inventory procedure that is justified by the 3 reasons above and as such is part of the community caretaking function of the police.
2) What are the prerequisites for an inventory?
a) The automobile must be in lawful custody (legal impound). (There is no real clear guide for this, but impounding the car must be reasonable under the community caretaking function of the police.)
b) Standardized procedures. (Need these to be clearly stated, usually written down, and must be followed.)
c) Need these prerequisites to ensure against pretextual inventory searches that are really investigative criminal searches.
3) Are inventories actually searches?
a) This case is slightly ambiguous on this topic, but progeny says that inventory searches are in fact searches under the 4th A term of art because there is a reasonable expectation of privacy in one’s car that society is prepared to recognize.
b) Persons: Lawful arrest, prospective incarceration and standard procedures
1) Illinois v. Lafayette [USSC; Burger opinion; 1983]
a) Issue: Is it reasonable to search personal effects as part of a booking process?
b) Majority:
i) This is reasonable.
ii) The Court balances the arrestee’s privacy against the interests of protecting the property of incarcerated criminals, the safety of all criminals, and false claims by criminals regarding their property once they are released. These interests outweigh the privacy interests.
c) When there is a routine procedure incident to incarcerating an arrested person, can search any container or article in his possession, in accordance with established inventory procedures.
d) The inventory needs to be incident to an arrest and cite and release doesn’t amount to that.
c) Containers too if inventory search of the person or automobile would otherwise be valid.
1) Colorado v. Bertine [USSC; Rehnquist opinion; 1987]
a) The established procedure allowed them to have discretion to choose whether to impound the car or not during DUI situations.
i) The Court says it doesn’t matter if there were less intrusive means available (like having a friend come drive the car away) because they followed their established police procedures.
b) Majority:
i) This is an extension of Opperman and Lafayette. In those two cases inventories of the car and a container were deemed acceptable even without a warrant. So, the container in a car, here was deemed constitutional.
a) Counterargument: the search of the container in Lafayette occurred at the stationhouse during booking and carried with it the rationales of booking procedures. (The same rationales don’t apply here.)
ii) The Court finds this not to be a pretextual inventory, even though there were elements of discretion left to the police, because they were operating under standardized procedures.
a) Counterargument: doesn’t allowing discretion in, allow for pretextual inventories to occur??
2) Florida v. Wells [USSC; 1990]
a) Unanimous Court concluded that an inventory search of a locked suitcase found in the trunk of an impounded car violated the 4th A because “the Florida Highway Patrol had no policy whatsoever with respect to the opening of closed containers encountered during an inventory search.”
b) But, they did say as well, “A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and the characteristics of the container itself.” Doesn’t have to be all or nothing situation.
5. Consent Searches
a) Voluntary: Determined by the totality of the circumstances (Bustamonte)
b) Do not have to inform the person that they do not have to give their consent (Bustamonte)
1) Schneckloth v. Bustamonte [USSC; Stewart opinion; 1973]
a) Rule: Looking at the totality of the circumstance, if consent for the car search was given voluntarily, then 4th A protection is waived.
b) It is permissible to have ignorant consent, but it cannot be gained by coercion.
c) Coercion is tested by the totality of the circumstances and these factors:
i) How many police officers were there? (Large # tends more towards coercion.)
ii) Did the police officer persist and request consent after an initial refusal?
iii) The age, education, emotional state, and ethnicity of the suspect.
iv) Was there a show of authority? (Such as a gun, etc. that basically coerced the suspect to consent.)
v) Knowledge of the right to refuse is a factor, but is not by itself determinative.
d) Marshall dissent: took issue with not adopting the knowing and intelligent waiver standard (like is present in other waiver situations) because Americans often take rights for granted, or if from somewhere else don’t even know we have this right, and so many people don’t know they don’t have to consent to a search when asked by the police to do so.
e) Why is it that the Court didn’t find that when one consents to a search, the consent must be knowingly, voluntarily, and intelligently waived?
i) Court found it would hamper police activity. (Consent searches are invaluable for them to gain evidence without warrants or even PC.)
ii) Also, Court said it’s not a trial setting, so it is not affecting the fundamental fairness of the trial.
c) Do not have to tell a person when they are free to go (Robinette) and can seek consent thereafter.
1) Ohio v. Robinette [USSC; Rehnquist opinion; 1996]
a) Issue: Does a suspect need to be told of his right to refuse consent and leave?
b) Majority:
i) No, a suspect does not need to be told of his right to leave, aka he doesn’t need to know that he can leave. The test for consent established in Bustamonte is fine here.
ii) Under Whren, the reason why the officer stopped the car and the reason he was convicted don’t have to be the same…the subjective intent of the officer doesn’t matter.
2) United States v. Watson [1976]
a) A (’s post-arrest consent to search his car was effective.
b) Although the fact that the subject is in custody at the time of consent is relevant in determining voluntariness, custody by itself does not render consent invalid. Also, there is no requirement that the individual in custody be informed or otherwise aware of his right to refuse consent.
3) Scope: Is defined by a reasonableness test. If a person says, “You may search the kitchen.” Then, they only consenting to a search of the kitchen, and anything beyond that would be unreasonable.
a) Florida v. Jimeno [1991]:
i) Court held that the scope of a consent search is governed by a standard of “objective reasonableness.” The dispositive question is “what would a reasonable person have understood by the exchange between the officer and the suspect?”
d) If by 3P must have common authority—joint access (Matlock) or apparent authority—reasonable belief of authority to consent (Rodriguez)
1) United States v. Matlock [USSC; White opinion; 1974]
a) Issue: Can one occupant give consent when it is clear that other people live there too?
b) Rule: Yes a person may give consent, if he/she has common authority, joint access, and control of the space.
c) Majority: If a person shares a space with someone else, the person has a reduced expectation of privacy. Basically, an assumption of the risk theory.
i) This theory doesn’t rest on property rights, but rests on mutual use of the property by persons generally having joint access or control for most purposes.
2) Illinois v. Rodriguez [USSC; Scalia opinion; 1990]
a) Issue: Does the person need actual authority over the premises to consent to a search of it?
b) Rule: No. If the police can reasonably believe that the consenting person had common authority, then consent is valid. Only need apparent authority to enter based on the consent of a person.
c) Marshall dissent:
i) Feels that Matlock wasn’t a search under Katz due to the assumption of risk theory. However, here, Rodriguez didn’t assume the risk and so this is an unconstitutional search.
e) No consent if co-occupant who is present refuses consent (Georgia v. Randolph)
f) Randolph v. Georgia: there cannot be consent if there are two parties present and one refuses to give consent (can raise problems for DV situations)
6. Plain View
a) Plain View isn’t an exception to the warrant requirement, but functions as a justification for a warrantless seizure. Plain View Doctrine comes in during searches that are otherwise lawful.
b) The three requirements for a lawful plain view seizure are that:
1) The officer’s original intrusion is lawful,
2) The item is observed while the officer is confining her activities to the permissible scope of that intrusion (sometimes referred to as a lawful right of access to the object itself), and
3) It is immediately apparent that the item is contraband or evidence of crime, without the necessity for any further examination or search.
c) Prior justification for the intrusion (Horton)
1) Horton v. California [USSC; Stevens opinion; 1990]
2) Facts: Armed robbery and the warrant described the scope of the search as the jewelry that had been stolen. In the course of looking for the jewelry, the officers find weapons.
3) Issue: Did the warrant need to specifically state the guns too since the officers had PC to believe there were in the house too?
4) Majority:
a) No. That would be a major obstacle to law enforcement that advances no 4th A goals.
b) But, the dissent argues that this is doing away with the warrant requirement for seizures and only requiring PC for seizures. This is only a minor impediment that protects a major goal—our possessory interests.
d) Immediately apparent that it is incriminating evidence—PC required (Hicks)
1) Arizona v. Hicks [USSC; Scalia opinion; 1987]
a) Majority:
i) This is an unconstitutional search because the incriminating elements of the stereo equipment were not readily apparent to the officer. He had to manipulate it, to see if it was contraband. This is a separate search.
b) Dissent:
i) Asked for a new standard and said not to call it a search, but a cursory inspection based on RS. Dissent wanted a balancing test…when less of an intrusion, then create a lesser standard. (Similar to Terry stops.)
ii) Majority rejected this idea.
WAS IT A SEARCH OR SEIZURE THAT REQUIRES LESS THAN PC?
A. STOPS
1. Was there a Stop/Detention?
a) General Test: Would a reasonable person believe he is not free to leave because his movement is restrained by physical force or a show of authority to which the suspect actually submitted? (Mendenhall; Hodari D.)
1) United States v. Mendenhall [USSC; Stewart opinion; 1980]
a) Rule: Seizure occurs when a reasonable person would feel not free to leave because of physical force or a show of authority.
i) This is an objective test. We look to see what the reasonable person would have felt about this situation.
b) What are the facts that lead us to think she was detained?
i) Young black female dealing with white officers
ii) To allow a strip search, must have felt compelled
iii) The DEA agents took her ID and plane ticket
c) The Court splintered as to whether under this definition seizure had taken place during the initial encounter. Emphasizing that the encounter occurred in a public place, that the agents did not demand to see the subject’s papers but rather merely requested them, and that there was no display of weapons or any other form, Justice Stewart (jointed only by Justice Rehnquist) concluded that no stop had occurred because nothing in the record suggested that Mendenhall had any objective reason to believe she was not free to end the conversation and proceed on her way.
i) Three members of the Court assumed that the confrontation amounted to a seizure but concluded that it was justified because there were sufficient facts to establish RS.
ii) The four remaining Justices, while believing that a remand on the question was desirable, treated the encounter as a stop and concluded there was insufficient justification for it.
d) Even though the suspect wasn’t believed to be armed and dangerous, Terry still applies (extension of Terry).
2) California v. Hodari D. [Scalia opinion; 1991]
a) Issue: At what point was he seized? When he was running away or when he was tackled?
b) Rule: Seizure occurs when an officer physically stops a person or the officer makes a show of authority (a) that would make a reasonable person not feel free to leave AND (b) that the person submits to.
c) Adds to the Mendenhall test
3) Michigan v. Chesternut [1988]
a) The Court held that mere following in a police car of a guy walking on the sidewalk didn’t amount to a seizure. But, in dicta, the Court said that it mattered that the police car hadn’t used sirens or flashers.
b) The Court said that such a brief pursuit by police, without more, would not have communicated to a reasonable person that they sought to capture him or otherwise restrain his freedom.
b) Captive Audience Test: Would a reasonable person feel free to decline the officer’s request for consent or otherwise terminate the encounter? (Bostick) [This test is broader and can be applied to more situations than the Mendenhall test because the Mendenhall test doesn’t apply to situations when freedom of movement is determined by a voluntary choice or circumstance.]
1) Florida v. Bostick [USSC; O’Connor opinion; 1991]
a) How did the lower court deal with this case? It looked at the case in terms of Mendenhall and said that on a bus, which is a confined area, no one would feel free to leave. If someone did leave, they would be stranded on the side of the bus.
b) The USSC didn’t agree with this analysis and instead used the captive audience test which inquires not into what a reasonable person would feel about leaving, but did the person in question feel that they could decline or terminate the encounter.
c) Majority:
i) A person who restricts his/her own movement by choosing to take the bus cannot then feel that they don’t have a freedom to leave when the police officers approach them.
ii) It’s true a reasonable person wouldn’t feel to leave, but they chose to get on the bus and be in a confined area.
2) United States v. Drayton [2002]
a) But, the USSC said police officers don’t need to tell people that they can say no and that it is ok for the police officers to be wearing uniforms and guns (but just can’t be shoving the guns in the person’s face, for example).
b) The Court found this not to be a seizure and decided that the bus circumstance was actually better for Drayton as it would have added moral support for him to decline the request to be searched.
2. Was there RS to Stop that Suspect ?
a) Police must have RS that criminal activity is afoot, based on articulable facts. (Terry)
1) RS is more than an inchoate hunch, but less than PC. (Terry, Alabama v. White)
a) Terry v. Ohio [USSC; Warren opinion; 1968]
i) Issue: Do stop and frisk procedures require PC or is a balancing approach to the reasonableness inquiry in the 4th A ok?
ii) Rule: The fact and circumstances of the situation must lead a reasonable prudent person to believe that (1) criminal activity is afoot, and (2) the suspect is armed and dangerous.
iii) Holding: “A stop and frisk is permitted under the 4th A where there is reasonable belief [RS] that criminal activity is afoot and there is RS that the person is armed and dangerous.”
iv) Majority: Stopping someone is in fact a seizure and a frisk is in fact a search. The 4th A is definitely implicated.
v) The Court was balancing two very important and competing interests: the safety and protection from harassment by police during the Civil Rights Movement and the obligation of the police to conduct investigations.
vi) A stop is when a reasonable person would have believed he was not free to leave.
vii) A frisk is when the officer must feel with sensitive fingers every portion of the prisoner’s body.
viii) RS is considerably less than proof than a preponderance of the evidence, but considerably more than an inchoate and unparticularized suspicion or hunch.
a) RS is based on the totality of the circumstances that would lead the officer to believe the two levels of the inquiry are present.
ix) The Court isn’t departing from the idea that whenever practical, warrants should be obtained, but the Court feels this is a situation of an entirely new rubric of police conduct predicated upon the on-the-spot observations of the officers on the beat—which has not been the subject of the warrant procedure. “Instead, the conduct involved in this case must be tested by the 4th A general proscription against unreasonable searches and seizures.”
b) Sibron v. New York [USSC; 1968] (companion case of Terry): The Court concluded that the officer did not have “reasonable grounds to believe that Sibron was armed and dangerous.” In the Court’s view, mere association with known narcotics addicts did not give rise to a reasonable fear of life or limb.” As a result, the Court held that is was unconstitutional for the officer to stop and frisk Sibron.
c) Alabama v. White [USSC; White opinion; 1990]
i) Rule: “RS is a less demanding standard than PC not only in the sense that RS can be established with information that is different in quantity or content than that required to establish PC, but also in the sense that RS can arise from info that is less reliable than that required to show PC.”
a) Still use at the Gates (Spinelli/Aguillar ) tests for tips, but because RS is a lower standard and the intrusion is less, the Court says it can be justified on less accurate and less detailed tips.
ii) Majority:
a) Adopting a totality of the circumstances approach reminiscent of Illinois v. Gates, the Court concluded that while the tip itself was inadequate to justify police action (because there was no basis of crediting either the caller’s veracity or the accuracy of his predictions), police corroboration established sufficient indicia of reliability to constitute RS and thus permit an investigative stop.
(c) United States v. Sokolow [1989]
iii) The following are among the red flags of the so-called “drug courier profile” relied upon by courts in determining whether the detention was justified. The subject: 1. paid cash for an airline ticket, 2. traveled under an assumed name, 3. did not check any luggage, 4. traveled to or from a narcotics source city, 5. only stayed a brief time in the destination city, and 6. appeared nervous.
iv) No one factor alone is sufficient, a combination may amount to RS that criminal activity is afoot.
(d) United States v. Arvizu [2002]
v) Court stressed that facts that are innocent when viewed in isolation may well be suspicious when viewed together and observed that officers may “draw on their own experience and specialized training to make inferences” that “might well elude an untrained person.”
(e) Michigan v. Summers [1981]
vi) Reasonable to detain people in a house while executing a search warrant. Each individual’s presence in the home gave RS. However, the police cannot search your person, though without more. They can ask questions, but the people in the home don’t have to answer to them.
2) Presence in a high crime area is not enough to create RS, but may be a factor along with flight from police. (Wardlow)
a) Illinois v. Wardlow [USSC; Rehnquist opinion; 2000]
i) The Prosecution advocated two per se rules regarding RS:
a) Unprovoked flight constitutes RS
i) Court rejected this and said still need the totality of the circumstances test. Just the mere fact of running, even in a high crime area, doesn’t automatically mean the suspect can be detained.
b) Unprovoked flight in a high crime area leads to RS
i) Court rejects, but unprovoked flight is a factor in the totality of the circumstances.
ii) What is the test for RS?
a) Must be able to point to a particularized and objective basis in light of the totality of the circumstances for suspecting the person stopped of criminal activity.
iii) Does a refusal to cooperate furnish RS?
a) Florida v. Royer: No. “When an officer, without RS or PC, approaches an individual he/she has a right to ignore the police and go about his business.”
iv) Was this frisk reasonable?
a) Frisks need to be justified by RS that the suspect is armed and dangerous.
b) It is a difficult argument to say that besides the fact that this was an African-American man in a high crime area, that there is actually RS that criminal activity is afoot and that the frisk is based on RS that he was armed and dangerous.
c) But, the Court doesn’t take issue with the frisk.
3) Anonymous tips can, but generally do not, provide RS—it depends on the quantity and quality of evidence provided (Alabama v. White; Florida v. J.L. )
a) Florida v. J.L. [USSC; Ginsburg opinion; 2000]
i) Held: An anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk just because it alleges the illegal possession of a firearm.
ii) What was the problem with the tip?
a) The tip predicted no future behavior. It never offered anything that could be corroborated.
b) Here, it looks like the police would have to be going more off a hunch, rather than RS.
iii) What did the Gov’t want?
a) The Gov’t wanted a firearm exception….tips about firearms automatically get RS.
b) The Court rejected this, even though there is an inherent danger with firearms because Terry itself involved a gun and so the Court already ruled on this issue and said there needs to be RS to frisk based on the suspect being armed and dangerous.
iv) Are there any exceptions to the rule that RS needs to exist?
a) Yes, when a person is reported to be carrying a bomb, or in spaces where reasonable expectations of 4th A privacy is diminished like airports and schools less than RS would be necessary.
b) Did the police exceed the scope of a valid stop?
1) Taking a suspect into custody exceeds a Terry stop and requires PC. (Dunaway)
a) Together with duration, courts weigh the degree of intrusion and the amount of force used on the subject in determining whether a stop has crossed the boundary and become the equivalent of an arrest. There is no bright line rule.
b) Dunaway v. New York [USSC; Brennan opinion; 1979]
i) Issue: Should there be balancing applied to situations that are less than arrests but more intrusive than Terry stops?
ii) Holding: Even though it wasn’t called an arrest, the gov’t can’t avoid PC when it amounts to an arrest.
a) Individuals can be talked to by the police, stopped based on RS, and arrested based on PC, but no multifactor case-by-case balancing will happen other than the balancing in Terry for stops.
iii) Majority: Factors that encouraged this result(moved him to the stationhouse, duration was longer than just a few minutes, he was interrogated.
iv) White’s concurrence: (this is the idea that ends up wining out)
a) While the 4th A is driven by reasonableness and balancing underlies the 4th A, we need categorical balancing, no case-by-case balancing.
2) Even a brief transportation can be a detention which requires PC or a warrant when akin to forcible removal of the suspect from a place that he has the right to be. (Hayes)
3) There is no per se time limit on Terry stops, but officers must act with diligence in attempting to confirm or dispel their suspicions. (Sharpe, Place)
a) United States v. Sharpe [USSC; Burger opinion; 1985]
i) The defense requested a bright line rule saying this time frame was too long to just be a stop (40 mins), rather than an arrest, but the Court wouldn’t adopt a bright line rule.
ii) Rule/Test: Rather than a per se time limit that says at what point detentions become arrest with the need for PC, the test is that the police officer must act diligently.
a) Rationale: The 4th A is governed by reasonableness. So, as long as the officers act diligently, they are acting reasonably and therefore can act under RS rather than needing PC.
iii) Marshall concurrence:
a) There needs to be a brevity requirement, but it wouldn’t matter here because the suspects themselves prolonged the time by voluntarily trying to escape.
b) Brevity is different than diligence. So, if the police are acting diligently, does that mean that a detention could go on forever?
i) United States v. Montoya de Hernandez (balloons in the bowls case)….16 hours detention was reasonable under the circumstances because it is what the police had to wait to act diligently (need to wait until the suspect passed the drugs).
iv) Brennan dissent:
a) Takes issue with this being called diligent police work. The DEA agent goes to the car without the drugs, while the CHP goes to the car with the drugs and so don’t have jurisdiction to arrest right then.
b) Florida v. Royer [1983]
i) Drawing the critical line between a stop and a more substantial intrusion was the subject of this case.
ii) Facts: Royer was approached by two detectives and at their request turned over his airline ticket and driver’s license (no seizure here yet), then accompanied them to an interrogation room. His luggage was brought in and (at the officers’ request) Royer opened his suitcase, revealing marijuana. The entire sequence of events took approximately 15 minutes.
iii) In ruling that by the time the suitcase was opened the detention had become a more serious intrusion than an investigative stop, the Court concluded that Royer had been subjected to the functional equivalent of an arrest, and, absent PC, that was unlawful.
c) United States v. Place [USSC; O’Connor opinion; 1983]
i) Issue: Can a Terry seizure occur with a bag? Based on just RS, can the police detain the bag until they have PC to seize the bag and then get a warrant to search it?
ii) Issue 2: Was the canine sniff a search?
a) Dicta here that the dog sniff isn’t a search. But, this was fully answered in Illinois v. Calabalas. Dog sniffs aren’t searches.
iii) Held: this was an unreasonable seizure due to its duration. (over 90 minutes)
iv) Case turned on the fact that the officers didn’t act diligently. While the plane was in the air en route, the cops could have planned the dog sniff to happen immediately upon Place’s arrival. So, while the time (90 minutes) seems to have been a major factor, the Court isn’t quite willingly to overrule Sharpe and Florida v. Royer and say a bright line rule for duration exists.
v) Would the permissible scope of the search and seizure of the luggage had been any different if this had been a checked bag rather than a carry-on?
a) Yes. There is a different balancing with different scenarios.
b) If the bag is checked, it merely deprives a possessory interest to seize it. However, if it is a carryon bag, it deprives a possessory interest and a liberty interest.
vi) Does the existence of a less intrusive alternative render the detention unreasonable?
a) No. According to Sokolow; reasonableness of the police officers’ actions doesn’t turn on the use of less intrusive alternatives.
4) Automobiles
a) Driver may be ordered out of the car (Mimms) even with no suspicion that armed and dangerous, so long as the seizure was lawful.
b) Passengers may also be ordered out of the car, without suspicion (Maryland v. Wilson)
c) The stop also encompasses the authority to order the driver and passengers out of the car (based on the USSC’s premise that such order is a minimal intrusion beyond the stop itself, and is justified by safety concerns.)
B. Frisks (searches)
1. Was there RS to frisk the suspect or place?
a) Police must have RS that the suspect was presently armed and dangerous, based on articulable facts (Terry).
i) Police must have individualized suspicion (Ybarra).
1) Ybarra v. Illinois [1979]
a) The Gov’t offered three theories: 1. authorized by the warrant for the bartender and subdivisions of the bar(Court said individuals are individuals and so need specific RS as to that person; 2. reasonable search for weapons(Court said no, need RS that the person is armed and dangerous; 3. asked for Terry to be extended to searches for evidence(Court said no, need PC to do a full blown search.
b) Can’t have RS purely by association, unless there is some reason to believe they’re cohorts.
1. Did the police exceed the scope of the valid frisk?
j) Generally: If it is not immediately apparent that the item felt in a patdown search is a weapon or contraband, the police may not investigate further (Dickerson)
1) Minnesota v. Dickerson [USSC; White opinion; 1993]
a) Issue: Whether police officers can seize contraband that isn’t a weapon based on a Terry pat down search and RS?
b) Rule: It becomes a full-blown search when the officer manipulates the object.
i) A Terry frisk is for weapons only.
c) What would have justified the manipulation?
i) 1. sufficient belief it was a weapon or 2. PC based on plain view that it was contraband.
k) Autos: A Terry frisk extends to the passenger area of a car only if the police have an articulable and reasonable belief that the suspect is armed and dangerous. (Long)
1) Michigan v. Long [USSC; O’Connor opinion; 1983]
a) Issue: Can a protective search for weapons extend beyond the person in the absence of PC?
i) Is a frisk of the automobile ok?
b) Rule: Frisk of the automobile is justified when the officers are aware of specific facts that would “warrant reasonable officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”
c) Holding: Frisk of an automobile is allowed as long as it’s limited in scope. (The officers couldn’t search in places that couldn’t contain a weapon.)
d) Rationale: Roadside stops are dangerous. This was late at night, in a rural area, driver was under the influence and could act irrationally. This is an extension of Terry to the car, like Belton was an extension of Chimmel to the car.
l) Homes: A protective sweep of the home is allowed only where officers have a RS that the home harbors an individual who poses a danger to those on the scene. (Buie)
1) Maryland v. Buie [USSC; White opinion; 1990]
a) Issue 1: During an arrest of a suspect in a home, pursuant to an arrest warrant, can the cops conduct a protective sweep?
i) Yes, but this protective sweep needs to be justified by reasonable articulable suspicion that the house has other people present that could pose a threat to the officers.
b) Where may officers look during the protective sweep? The scope limits the search to any place that could harbor a dangerous person.
c) Issue 2: With no suspicion at all, can officers look into areas like closets or any other immediately adjoining areas?
i) Not for contraband, but can look for people. This is an extension of incident to arrest wing-span search, but for accomplices only.
d) Rule:
i) If arresting a person in a house, based on no suspicion at all, may search adjoining areas for other people.
ii) Also may search the entire house if RS to believe other dangerous people are there.
iii) Scope of both: Must be a place that a person could be harbored (i.e. beds, showers, etc., not drawers, cabinets).
2) It may not take longer than it would otherwise take to complete the arrest
3) Police may look only in places were people may be found.
4) NOTE: May look in immediately joining areas on no suspicion at all.
B. Administrative Searches
1. School Searches (New Jersey v. TLO)
a) Was there a proper basis for the search?
1) Requires reasonable grounds for suspecting the search will reveal a violation of school rules or law by a student.
2) Lower standard applies to school officials, not to the police.
b) Did the search exceed the permissible scope?
1) The search must be reasonably related to the objectives of the search AND
2) The search may not be excessively intrusive in light of the age and sex of the student and nature of the infraction.
c) New Jersey v. T.L.O. [USSC; White opinion; 1985]
1) Issues: Does the 4th A apply to this situation? And, if so, did the principal violate it?
2) Rule: There must be reasonable grounds for suspecting that a search will turn up evidence that a particular student is in violation of either school rules or the law.
3) Majority: Striking a balance between the “schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place, “ the court dispensed with both the requirement for a warrant and for PC.
4) Does the 4th A apply? (i.e. was there a state action?)
a) Yes. The state tried to argue that teachers were acting in more of a parental position rather than a gov’t position, but the Court rejects this argument and says the 4th A definitely applies.
5) Was this is a search?
a) Yes. We have an expectation of privacy in our purses.
6) Was a warrant necessary?
a) No. The Court finds it would be impractical for the school to obtain a warrant and students have a lesser expectation of privacy while at school.
7) Do the Majority and Dissent disagree on the issue of PC?
a) No. Both agree that RS will suffice.
8) How does the Court justify the suspension of PC?
a) Using a balancing of the school’s interest in a safe and orderly environment vs. the student’s interest in privacy, and finding that the school’s interests outweigh the student’s
9) What about individualized suspicion? Court declines to decide that here.
10) Can school officials search lockers? Again, Court declines to decide that and hasn’t yet.
2. Drug Testing
a) Suspicionless testing in the safety industry is allowed. (Skinner)
1) Skinner v. Railway Labor Executives’ Association [USSC; Kennedy opinion; 1989]
a) Holding: These drug tests are constitutional even without individualized or even general suspicion of drug use.
b) How are these tests justified?
i) The blood, urine, and breath tests are all searches, but based on a balancing test, called these tests minimally intrusive and said that procuring a warrant would be impracticable, the Court finds that this is a safety issue rather than a criminal investigation and so it’s ok.
a) Breath tests: reveal nothing more than alcohol(not intrusive
b) Urine tests: not conducted in front of an observer(not invasive
i) But this was a close one, because urine does show pregnancy, epilepsy, etc. and so is more intrusive than breath
c) Are drug tests an effective deterrent, thereby encouraging safety?
i) Majority says yes.
ii) But, the Dissent says no because the danger of death or property damage is actually the deterrence.
b) The risk to the public must be real and substantial. (Chandler)
1) Chandler v. Miller [USSC; Ginsburg opinion; 1997]
a) Holding: The statute was invalidated because such positions for public office did not involve high-risk, safety-sensitive tasks. (No special need justifying the drug tests.)
2) No special need when the primary purpose is law enforcement and the labeling as a “special need” is to get around PC or RS (Ferguson).
a) Ferguson v. City of Charleston [2001]
i) Holding: The invasion of privacy in this case was far more substantial than in prior cases (dealing with pregnant women and drug use) before the Court which had involved programs with “protections against dissemination of test results to third parties. Plus,” the center and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance e abuse treatment.” Unconstitutional.
c) Testing of employees working for customs who sought promotion or transfer to positions involving drug interdiction, firearms or classified material is permissible. (Von Raab)
1) National Treasury Employees Union v. Von Raab [1989]
a) Held: This was constitutional because the Customs Service position involved protecting our borders and so the privacy expectations were lower.
b) Scalia dissent: There is absolutely no evidence to show that these people used drugs and no advancement of any public interest.
d) Testing school athletes is allowed. (Vernonia)
1) Vernonia School District 47J v. Acton [1995]
a) Facts: involved the validity of a policy requiring every student participating in athletics to submit to random urinalysis for drugs.
b) In upholding the suspicionless drug testing, the Court balanced the intrusion on students’ 4th A interests against the school’s legitimate interest in detecting drug use.
c) Athletes have less privacy expectation because they routinely submit to medical examinations such as scoliosis screening, dress together in locker rooms, and voluntarily participate in regulated sports.
d) Further, the method by which urine was obtained was not intrusive and the test would only determine specific drugs, with the results reported only to those school personnel legitimately needing to know.
e) Testing for non-athletic extracurricular activities is allowed (Earls)
1) Board of Education of Independent School District No 92 of Pottawatomie County v. Earls [2002]
a) This case was a big expansion because there was absolutely no suspicion of drug use at this school…it was just defended based on the national drug problem in American schools.
b) The Dissent really found this to be troubling because the program targeted the high school’s best students: choir, band, cheerleaders, ASB, etc.
D. Checkpoints
1. Brown v. Texas [1979]
a) *This was not a check point case.
b) Facts: Officers stopped an individual in a high-crime area of El Paso because he looked suspicious and they wanted to ascertain his identity.
c) The Court ruled the stop unconstitutional, and gave a three prong test:
1) The gravity of the public concern served by the seizure;
2) The degree to which the seizure advances the public interest;
3) The severity of the interference with individual liberty.
d) This test is the guide for the balancing in the checkpoint and drug cases.
2. Minimally intrusive sobriety checkpoints are allowed. (Sitz)
a) Michigan Department of State Police v. Sitz [USSC; Rehnquist opinion; 1990]
1) Holding: Initial seizures that occurred when cars were stopped were reasonable under the 4th A.
2) Majority:
a) Applying the balancing test that substitutes for the PC requirement, the Court weighted the magnitude of the gov’t interest in eradicating the drunk driving problem against the slight intrusion to motorists stopped briefly at the fixed checkpoints.
b) Evenhandedness was ensured because the locations of the checkpoints were chosen pursuant to written guidelines and the police were directed to stop every approaching vehicle—the officers themselves did not decide whom to stop.
c) The fact that motorists were not notified of the upcoming checkpoints or given an opportunity to make a U-turn to avoid them was not regarded as fatal to the legality of the Michigan program.
3) Dissent:
a) Feels these stops are more intrusive than border checkpoints because they are random and there is no notice. Plus, there is no proof that this is any more success than just devoting these resources to cops on regular patrol to check for drunk driving.
b) Delaware v. Prouse [1979]
1) The special need here was unlicensed drivers.
2) Held: suspicionless discretionary spot checks of motorists to inspect license and registration violated the 4th A.
3) The Court emphasized, however, that it was not foreclosing other methods of spot checking in furtherance of an important gov’t purpose as long as the decision as to whom to stop was not left to the unconstrained discretion of the officer. (Example: a roadblock in which all cars were stopped.)
3. Checkpoints established for general crime control purposes are not allowed--drug trafficking checkpoint stuck down. (Edmonds)
a) City of Indianapolis v. Edmond [USSC; O’Connor opinion; 2000]
1) Rule: If the primary purpose of the checkpoint is general crime control, the checkpoint is unconstitutional.
2) Why is the primary purpose important?
a) The Majority felt that the Court and the gov’t could balance its way through anything and it would lead to a slippery slope, not stopping until we had random checkpoints on every street corner. And, the requirement of individualized suspicion in the constitution would be rendered meaningless. (We don’t want to develop into a police state.)
3) Are there any situations where general crime control would be ok as a primary purpose?
a) If it were an actual pressing need for immediate crime prevention like an escape of a dangerous felon or word of a bomb, but otherwise no.
4) What if general crime control isn’t the primary purpose, but is a purpose of the checkpoint?
a) The Court doesn’t rule out the idea of secondary purposes. For example, a DUI checkpoint could also have a bomb sniffing dog (just for general crime detection purposes). This would presumably be acceptable under this holding, which opens a hug door for the state.
b) Primary purpose test does not refer to every law enforcement objective. It does not include situations where the objective is to ask the car’s occupants about “others” who have committed offenses. (Lidster)
1) Illinois v. Lidster [USSC; Breyer opinion; 2004]
a) Held: This is not a violation of the 4th A because this is minimally intrusive and Edmond doesn’t always apply.
b) Majority:
i) Edmond didn’t apply here because the cops were seeking info about other people suspected of a crime, not about the driver or passengers in that particular car at the checkpoint.
ii) Individualized suspicion is not necessary here because the cops were just asking for info…this is less likely to make people anxious.
4. At the Border:
a) Fixed checkpoints are allowed for checking for illegal immigrant (Martinez-Fuerte)
1) United States v. Martinez-Fuerte [1976]
a) This was the first international border checkpoint case.
b) The Court allowed the checks because the checkpoint was fixed, there was no surprise, and no police officer discretion.
c) Also, the Court rationalized it on the fact that the border is a special venue trying to fight illegal immigration, and the border checkpoints actually worked.
2) Must apply traditional car search/seizure rules to roving border patrols. (Brignoni-Ponce)
a) United States v. Brignoni-Ponce [1975]
i) Held: Vehicles may be stopped by roving patrols near the border and occupants briefly questioned about their immigration status only upon RS that the vehicle contains illegal aliens.
ii) Thus, absent RS roving border patrols are not ok, especially if, like here, it was conducted at night with surprise, and too much police officer discretion.
3) Routine searches at the border are constitutional. (Ramsey)
4) Gov’t’s authority to conduct suspicionless searches a the border includes the authority to remove, disassemble and reassemble the fuel tank. (Flores-Montano)
a) United States v. Flores-Montano [USSC; Rehnquist opinion; 2004]
i) Rule: When at a border checkpoint, no RS is need to search the gas tank and the car.
ii) Further: United States v. Chandry [9th Cir. 2005]: held that drilling a hole in a gas tank is reasonable. Cert. was denied, so this is the law here.
iii) Further: United States v. Hernandez: removal of interior door panels was also ok without RS.
iv) When would RS be necessary at the border checkpoints?
a) If the scope of the search became too large. For example, body cavity searches or strip searches would probably require RS. But, the Court didn’t specifically say that.
CONFESSIONS
*The 5th A prohibits compelled self-incriminating testimonial statements.
*The 6th A provides right to counsel once the adversarial proceedings begin.
A. Was there a Miranda violation?
1. Miranda v. Arizona [USSC; Warren opinion; 1966]
a) This landmark case was decided two years after Escobedo and was thought to solve the problems of the voluntariness standard.
b) Issue: Does the 5th A apply to interrogations and not just the courtroom?
c) Holding: Yes, the 5th A applies to custodial interrogations because there is a presumption of coercion in custodial interrogations. Further, “[t]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the ( unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
1) If the suspect exercises his right to silence, interrogation must immediately cease; if he requests an attorney, interrogation must cease until one is present.
d) How were the 4 cases decided (including Miranda) linked?
1) They all shared salient features—incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.
e) Majority opinion:
1) Why did the Court go into such great detail about the police tactics?
a) Because while this may not be physical brutality, it can amount to mental coercion
b) The results of these interrogations, the majority feels, are inherently compelled and thus violate the 5th A
2. New York v. Quarles [USSC; Rehnquist opinion; 1984]
a) Rule: There is a public safety exception to Miranda and so when there is a risk to public or officer safety and the limited questioning only involves protection of this safety, there is an exception and Miranda rights don’t need to be read right away.
b) Dissent: Felt the majority was ignoring that Miranda is a constitutional right and so exceptions can’t be made to it.
3. Dickerson v. United States [USSC; Rehnquist opinion; 2000]
a) Rule: Treating it as a rule of constitutional dimension, Congress had no power to overrule Miranda in §3501.
b) Holding: Despite predictions to the contrary, the Court declined the invitation to overrule the controversial 1966 Miranda decision.
c) Majority opinion:
1) Chief Justice Rehnquist reaffirmed Miranda and its constitutional basis.
2) The Court noted the advantage of “concrete constitutional guidelines” for law enforcement and the courts to follow, and recognized that Miranda has become “embedded in routine police practice to the point where the warnings have become part of the national culture.”
3) But is Miranda a constitutional right?
a) The Court never says this. It only says that Miranda is a “constitutional decision,” has “constitutional origins,” and “constitutional underpinnings.”
b) Because the Court won’t say it’s a constitutional right, but at the same time won’t allow Congress to overrule it, the Court has basically created a new realm of constitutional law outside of their supervisory power and outside their constitutional interpretation and application power.
4. Ambivalence about Miranda persists.
a) Chavez v. Martinez [2003]
1) The Court took a narrow view of the doctrine when it held there is no Miranda violation unless the gov’t seeks to introduce the statement at a criminal trial. This clearly violates Miranda and its original ideas.
2) Police sergeant Chavez’s failure to read Miranda warnings to Martinez before questioning him did not violate his constitutional rights because, absent use of the statement in evidence, he was not “compelled to be a witness against himself in a criminal case.”
5. Was there a custodial interrogation?
a) Custody?
1) A person is in custody when: his/her freedom of action is curtailed to such a degree as associated with a formal arrest. (Berkemer)
a) Berkemer v. McCarty [USSC; Marshall opinion; 1984]
i) Issues:
a) Does Miranda govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense?
i) Yes, as long as the person is subjected to a custodial interrogation, it doesn’t matter whether the offense is a misdemeanor or felony, the person must be Mirandized. This is offer clarity to officers in the field who won’t know at the time what degree the offense will be.
ii) Does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda?
a) No. This is more like a Terry situation rather than full-blown arrest.
iii) Rule: No Miranda warnings are necessary in a roadside traffic stop because this is not a custodial situation.
iv) Majority opinion:
a) Even though there is some restraint on the motorist’s freedom, a traffic stop is usually brief, in public, and the driver expects he will be allowed to continue on his way. The atmosphere is substantially less “police dominated” than a stationhouse interrogation.
b) Reasonable person perspective used to determine whether a person is in custody under Miranda (Berkemer, Yarborough)
i) Yarborough v. Alvarado [USSC; Kennedy opinion; 2004]
a) Holding: The more direct issue was more procedural, so when the Court makes its holding, it isn’t saying necessarily that this wasn’t custodial, but it is saying it is not unreasonable for the lower courts to say that it wasn’t custodial.
b) *The 9th Cir. felt this was a custodial interrogation because of the (’s young age and lack of experience with the criminal justice system.
i) The USSC disagreed, however, and said that age wasn’t a relevant factor in the reasonable person standard.
c) Majority opinion:
i) The standard is an objective one based on the suspect’s perceptions, and the determinative question is how a reasonable person in his position would have understood the situation.
ii) Among the factors courts look to in applying the reasonable persons test are the location of the interrogation (familiar or unfamiliar to the suspect?), the duration and the persons present (just law enforcement personnel?).
iii) This determination remains a fact-specific and ad hoc inquiry.
c) It does not depend on whether the officer suspects the individual of a crime. (Stansbury) Berkemer and Stansbury v. California [1994] both emphasize that the actual intention of the officer to detain the suspect and take him into custody is irrelevant to the “custody” issue unless the intention is communicated to the suspect.
2) A person is not in custody when:
a) Subjected to roadside questioning akin to a traffic stop. (Berkemer)
b) When the suspect voluntarily comes to the police station. (Mathiason)
i) In Oregon v. Mathiason (1977), a parolee reported to the police station at the telephone request of an officer. He was told that he was not under arrest, but was asked questions concerning a burglary. Mathiason confessed to the crime and was then released pending review of his case. The Court held that Miranda warnings were not required because he had come to the station voluntarily, was informed that he was not under arrest, and had not been restricted in his freedom to depart.
b) Interrogation?
1) Includes
a) Words or conduct that the police knew or should have known was likely to elicit an incriminating response. (Innis)
i) Rhode Island v. Innis [USSC; Stewart opinion 1980]
a) Rule: An interrogation is “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response form the suspect.”
i) This test is objective with a subjective component.
ii) “police should know” is objective
iii) Primary focus is on the suspect
b) Holding: No interrogation because the police officers could not reasonably have expected their conversation to elicit an incriminating statement. The Court found nothing in the record to suggest that they were aware Innis was peculiarly susceptible to an appeal to conscience concerning the safety of handicapped children or that the officers’ remarks were designed to elicit a response.
c) What if the officer intends for this to be an interrogation? Is this fact relevant?
i) FN 7: “This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.”
ii) FN 8: “Any knowledge the police may have had concerning the unusual susceptibility of a ( to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response form the suspect.”
b) Does not include:
i) Questions by undercover officers when no coercion is present (Perkins)
a) Illinois v. Perkins [USSC; Kennedy opinion; 1990]
i) Holding: Miranda protections do not apply here because the suspect did not perceive that he was being questioned and thus did not feel the coercive pressures that trigger the protections.
ii) Majority opinion:
iii) “The essential ingredients of a ‘police dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate.”
b) Cf: Arizona v. Fulminante [1991]
i) An undercover FBI agent offered the ( “protection” from other inmates, but only if he would tell the truth about his stepdaughter’s death. The ( then admitted to the FBI agent that he had murdered his stepdaughter.
ii) In a 5-4 decision, the Court agreed with the Arizona Supreme Court’s conclusion that (’s confession had been coerced, and therefore, that its admission into evidence violated due process.
ii) Voluntary/spontaneous statements by the person in custody (Innis/Connelly)
a) Colorado v. Connelly [1986]
i) For the waiver to be involuntary, the waiver must result from police coercion that overcame the suspect’s will. If the accused was subjected to compulsion such as intimidation or threats, then the impact of those tactics will be examined in light of the totality of the circumstances surrounding the interrogation.
ii) Absent evidence of objectionable police methods, Connelly signals that the waiver will be found voluntary regardless of the (’s peculiar vulnerabilities or internal compulsions to talk.
6. If so, did the police give complete Miranda warnings?
a) The warning:
1) Right to remain silent
2) Anything s/he says can be used against her/him
3) S/he has the right to the presence of an attorney;
4) If s/he cannot affordan attorney, one can be appointed.
b) Variations in the precise warnings are permissible so long as they reasonably convey the rights included in the four warnings. (Prysock; Eagen)
1) California v. Prysock ( [1981]
a) Rule: Variations from the precise warnings prescribed in Miranda are permissible so long as they “reasonably convey” the rights included in the original four warnings.
b) “You have the right to have a lawyer appointed to represent you at no cost to yourself” was sufficient.
2) Duckworth v. Eagen [1989]
a) Officer said, “We have no way of giving you a lawyer, but one will be appointed if and when you go to court.”
b) Under Prysock, the Court held in a 5-4 decision that this was sufficient to apprise the suspect of his right to counsel.
7. Was there a waiver?
a) Must be knowing, voluntary and intelligent (Johnson v. Zerbst)
1) Voluntary defined: Product of a free and deliberate choice rather than intimidation, coercion, or deception (Burdine)
a) Moran v. Burbine [1986]
i) The fact that the police failed to inform the suspect that an attorney retained by his sister to represent him was trying to see him at the police station was held not to undercut the validity of his written waiver. The police had assured the attorney that the suspect would not be questioned until the next day, but then proceeded to interrogate him.
ii) Court said, “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”
iii) Moran did leave open the possibility that “on facts more egregious than those presented here police deception might rise to the level of a due process violation.”
2) Knowing and intelligent: Full awareness of both the nature of the right abandoned and the consequences. (Zerbst)
3) Totality of the circumstances surrounding the interrogation reveals an uncoerced choice and the request level of comprehension. (Burbine, Spring)
a) Colorado v. Spring [USSC; Powell opinion; 1987]
i) Facts: Arrested by federal agents in Missouri on a firearms charge, Spring singed a written waiver form after being advised of his rights. The focus of the interrogation ultimately changed, however, to an unsolved homicide in Colorado, to which Spring then confessed.
ii) Rule: A suspect doesn’t need to be aware in advance of all the possible subjects of the interrogation in order to make a valid Miranda waiver; he just needs to understand the right that he is waiving.
iii) What was the (’s argument?
a) He asserted that he could not have knowingly waived his right to remain silent when he was unaware that he would be questioned about the unrelated crime.
b) Court rejects this idea and says that a valid waiver does not require the subject be informed of all info that would be useful in making his decision or that might affect his decision to confess.
iv) Does this amount to trickery?
a) Not really, but if they had said we are ATF agents and we’re only going to question you about this…that would be trickery.
b) May be express or implied: inferred from the actions and words of the person being interrogated—determined by the totality of the circumstances. (Butler)
1) North Carolina v. Butler [USSC; Stewart opinion; 1979]
a) Holding: A waiver may be found even in the absence of an explicit statement if the suspect’s words and actions implicitly constitute a decision to forgo his rights.
b) Majority: Rejected a requirement that waivers be explicit and instead held that a valid waiver could be inferred from appropriate conduct of the suspect.
i) In determining whether a suspect has implicitly waived his Miranda rights, the Court (in a manner reminiscent of the due process voluntariness standard) directed trial judges to look at the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.
c) But, waiver is valid as to all questioning, even if the suspect is unaware of the crime about which s/he is being questioned. (Spring)
d) Prosecution carries the burden to prove waiver. (Miranda)
8. Coordinated and Continuing Interrogation?
a) Test: Whether it would be reasonable to find that in these circumstances the warnings could function as “effectively” as Miranda requires (Siebert).
9. Missouri v. Seibert [USSC; Souter opinion; 2004]
a) Missouri Police Policy:
1) Question first, then Mirandize, then question again and get second confession
b) Issue: Would it be reasonable to find that the warning delivered “midstream” could function “effectively” as Miranda requires? Or has the first statement rendered the warning ineffective because the warnings are now a mere formality and don’t provide the proper education for the suspect?
c) Rule: “Would a reasonable person in the suspect’s shoes understand the warning to convey a message that she retains a choice about continuing to talk.”
d) Plurality: Objective Test
1) Factors:
a) The degree to which the interrogators treated the second round as continuous with the first.
b) The completeness and details of the questions and answers in the first round of interrogation.
c) The overlapping content of the two statements.
d) The timing and setting of the first and second interrogations.
e) The continuity of police personnel.
e) Kennedy: Subjective—Deliberate Violations (Elstad governs unless dealing with a deliberate situation)
1) Intention effort to circumvent Miranda by using question-first method
2) 2 confessions substantively related rather than about distinct topics
3) Curative measures to ensure that the suspect understood the rights and waiver of Miranda (substantial break in time, or what you’ve just said can’t be used against you)
f) Note: The inquiry applies to intentional and unintentional two-stage interrogations. Justice Kennedy would only bar the second statement if the technique was intentional.
g) Dissent:
1) Keep Elstad and look to whether the statement is involuntarily given.
10. Did the police honor the invocation of rights?
a) Suspect’s silence invokes the right and police may not badger
b) Police can resume questioning after a suspect invokes his right to remain silent only if his rights are scrupulously honored—apply Mosley factors:
1) Duration of cessation: (Mosley guide; 2 hours); should be significant
2) Re-read rights to suspect (Re-Mirandized)
3) Different officer
4) Different location
5) Different subject matter (different and unrelated crime)
c) Michigan v. Mosley [USSC; Stewart opinion; 1975]
1) Rule: the Court rejected the concept of a permanent termination of questioning and held instead that interrogation could resume as long as the right to cut off questioning was “scrupulously honored.”
2) Holding: The (’s right to cut off questioning had been scrupulously honored because the police had immediately ceased questioning when he exercised his right to remain silent, and had resumed questioning about a different crime only after the passage of significant time and with the provision of fresh warnings.
3) White’s concurrence:
a) He feels the Johnson v. Zerbst test is sufficient. These factors only go to the voluntariness of the waiver, nothing more is necessary.
4) Dissent:
a) There should be no questioning until arraignment or the appointment of counsel (formal proceeding is needed)/
b) Plus, the Dissent, said this was a robbery that went awry and turned into murder, not an entirely separate crime as the majority said it was.
5) What if Mosley asked for an attorney?
a) He wouldn’t be able to be questioned until he met with his counsel or he initiated further conversation with the cops.
b) Difference between the right to remain silent and the right to counsel:
i) Recognition by the Court that when asking for an attorney, the suspect is saying that he can’t handle this interrogation alone vs. invoking the right to silence is saying that he just doesn’t want to talk now.
6) Thus if the prosecution seeks to introduce a statement obtained from a suspect who had initially invoked his right to remain silent, it must be demonstrated: 1) that his right to silence, once invoked, had been scrupulously honored; and 2) that a knowing, intelligent, and voluntary waiver subsequently occurred. Where it is shown that the police failed to cease interrogation immediately, or engaged in repeated efforts to get the suspect to change his mind, his resulting statement will be inadmissible.
11. Right to an Attorney
a) Once a suspect has invoked his right to counsel, interrogation must cease until the attorney arrives or until the suspect re—initiates conversation. (Edwards)
1) Edwards v. Arizona [USSC; White opinion; 1981]
a) Rule: Police are permitted to resume interrogation even in the absence of counsel if the suspect himself initiates further communication with the police.
b) Holding: Concluding that the playing of the tape constituted the functional equivalent of questioning und Rhode Island v. Innis, the Court ruled that his statement was inadmissible.
i) When a suspect invokes his right o counsel, a valid waiver cannot be established merely by showing that he received additional warnings and then responded to further police-initiated custodial interrogation.
ii) Rather, the Court held, additional safeguards are necessary to protect the right to counsel. Specifically, the suspect may not be questioned further until counsel has been made available to him or the accused himself “initiates further communication, exchanges, or conversations with the police.”
c) Thus, if the prosecution seeks to introduce a statement from a suspect who had initially invoked his right to counsel, it must be demonstrated: 1) that counsel was made available to him; or 2) the suspect himself initiated the further communication; and 3) that a knowing, intelligent, and voluntary waiver subsequently occurred.
2) What constitutes initiation of further communications by the suspect?
a) Oregon v. Bradshaw [1983]
i) The Court concluded that the Miranda/Edwards doctrine had not been violated. A four-Justice plurality, noting that questions relating to routine incidents of the custodial relationship (such as request for water or access to a telephone) would generally not constitute “initiation,” nevertheless found that Bradshaw’s question to the jailer “evinced a willingness and desire for generalized discussion about the investigation,” thus permitting interrogation to resume.
3) The fact that the suspect has consulted with counsel after invoking his rights does not mean that the official can reinitiate the interrogation. (Minnick)
a) Minnick v. Mississippi [USSC; Kennedy opinion; 1990]
i) Issue: Is consultation with an attorney enough under Miranda?
ii) Rule: Officials cannot reinitiate questioning whether or not the suspect has consulted with an attorney; what matters is whether the counsel is present.
iii) Holding: Merely providing the opportunity to consult with counsel outside the interrogation room is not sufficient. Rather, the accused is entitled to have his attorney present with him during questioning.
b) Edwards-Minnick rule:
i) Once a person in custody requests counsel, it is as if a protective shield surrounds him or her, and the suspect may not be questioned about any crime unless the suspect’s attorney is present and a valid waiver is obtained or unless the suspect initiates further communication, exchanges, or conversations with the police and a valid (knowing, intelligent, and voluntary) waiver was obtained.
4) No duty to inform a suspect that s/he has an attorney en route (police cannot make affirmative misrepresentation to a suspect—compare to withholding info) (Burbine)
b) The constraint against further interrogation once the right to counsel is invoked applies even if the second interrogation would concern an offense unrelated the subject of the initial arrest.
1) Arizona v. Roberson [1988]
a) The state argued that the Edwards rule cutting off interrogation should not apply regarding a different crime. The Court, emphasizing the importance of maintaining clear and unequivocal guidelines to law enforcement officers disagreed: “Whether contemplated reinterrogation concerns the same or different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists. The police department’s failure to honor that request cannot be justified by the lack of diligence of a particular officer.”
c) If a suspect ambiguously or equivocally asserts his Miranda right to counsel, the police may ignore the remark and continue the interrogation.
1) Test: If the suspect’s reference to an attorney is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the interrogator may ignore the reference and proceed with the questioning. (Davis)
2) No duty to ask clarifying questions. (Davis)
a) Davis v. United States [USSC; O’Connor opinion; 1994]
i) Facts: Suspect said, “Maybe I should talk to a lawyer.”
ii) Rule: Suspect must unambiguously request an attorney for questioning to cease.
iii) Holding: The suspect’s statement (stated in the Facts) was not deemed a request for counsel.
iv) Concurrence: wants the officers to ask clarifying questions when it’s debatable whether or not they have invoked their right to counsel.
a) Majority says, though, that police are not obligated (although it is “good police practice”) to clarify ambiguous requests but may press on with their interrogation.
B. Was there a substantive due process violation?
1. Brown v. Mississippi [USSC; 1936]
a) The Court for the first time considered a state case in which the constitutionality of a (’s incriminating statement was at issue. Here, the Court overturned convictions based on confessions obtained after the (s had been whipped until they agreed to confess to such statements as the officers dictated. The convictions were held to be in violation of due process of law because they were involuntary and could not be admitted at trial.
2. The rationales for prohibiting involuntary confessions is that there is a heightened risk of false confessions in these situations, the police should obey the laws while enforcing them, and our system is an accusatorial system rather than an inquisitorial system.
a) In an accusatorial system, we are supposed to gather evidence and prove a case against someone. They are not supposed to be convicted on their own words alone, as in the inquisitorial system.
3. Unlike Miranda, the fruit of the poisonous tree applies to involuntary confessions and involuntary confessions can’t be used to impeach a ( on the stand.
4. Coercive interrogations violate the due process clause. (Ashcraft)
a) Ashcraft v. Tennessee [USSC; Black opinion; 1944]
1) Holding: 36 hours of unrelenting interrogation is coercive and violative of Due Process.
2) Was the confession reliable?
a) Yes, he probably did kill his wife.
b) But, even though he’s a guilty person probably going free, it is simply unfair to question someone relentlessly for 36 hours.
c) These procedures are unacceptable in a democracy using an accusatorial system.
3) Did the dissent feel that a prolonged interrogation should ever be per se impermissible?
a) Not really because they reasoned that all interrogations are inherently coercive. They argue the issue should remain the particular mental stability of the individual suspect.
b) The one per se violation of Due Process according to the dissent is physical violence and proof of effects that show the suspect was actually deprived of his/her will.
5. Apply totality of circumstances test to see if the facts suggest coercion [police misconduct]. (Spano)
a) To decide if the will was overborne a totality-of-the-circumstances is employed weighing numerous considerations: suspect’s peculiar characteristics and vulnerabilities, such as age, level of education, mental stability, state of sobriety, and familiarity with the criminal justice process. The other factors concern the manner in which the police conducted the interrogation, such as the length of the suspect’s detention, the duration and intensity of the questioning, the use of trickery, deception, threats, or promises of leniency, the deprivation of access to family, friends or nourishment, whether the police advised the suspect of her rights, and whether she was subjected to any physical or psychological mistreatment.
b) Spano v. New York [USSC; Warren opinion; 1959]
1) Holding: Spano’s will was overborne and therefore his confession is involuntary and inadmissible.
2) What facts lead the Court to conclude that this was an involuntary confession?
a) Spano was foreign.
b) He was young.
c) He only had an 8th grade education.
d) He had emotional instability.
e) Interrogation took 8 hours
f) Interrogation happened at night
g) His statement wasn’t a narrative, but was a response to leading questions by the prosecutor.
h) Bruno’s false friends tactic.
i) He wasn’t allowed to see his attorney.
c) Mincey v. Arizona [1978]
1) Facts: ( was seriously wounded in a narcotics raid in which an officer was killed. Just a few hours later, a detective questioned him in the intensive care unit (ICU) of a hospital. Lying on his back in a bed, encumbered by tubes, needles, and breathing apparatus, the ( repeatedly expressed his wish not to be interrogated.
2) Holding: (’s confession was inadmissible for all purposes because it was involuntary. “His will was simply overborne.”
d) Need coercive conduct by the State. (Connelly)
e) Police are not obligated to treat mentally impaired person differently unless police knew or should have known of the impairment. (Connelly)
1) Colorado v. Connelly [USSC; Rehnquist opinion; 1986]
a) Holding: No, it was voluntary because there was no coercion.
i) For a the confession to be involuntary, there must be coercion by the police, and then we must look at the totality-of-the-circumstances to see if the (’s will was overborne.
C. Was there a 6th A right to have counsel present?
1. The 6th A provides that “the accused shall enjoy the right to have the assistance of counsel for his defense.”
2. Every person is entitled to a lawyer and one must be appointed for those who are indigent (applies in federal and state courts).
a) In Johnson v. Zerbst (1938), the Court held that the 6th A in federal proceedings demands that the court appoint counsel to those who can’t afford one.
b) Gideon v. Wainwright [USSC, Black opinion, 1962] (applied the 6th A to the States and overturned Betts v. Brady)
1) Issue: Does the Fourteenth A require that indigent people have the right to counsel?
2) Rule: It is fundamental to a fair trial to have counsel, whether rich or poor.
3) Does the fact that the gov’t is represented by an attorney mean that the trial will be unfair if the ( does not have an attorney?
a) No, not necessarily unfair because you can waive the right to counsel and can reject counsel.
i) Faretta v. California says a ( may waive the right to counsel where she does so knowingly, intelligently, and voluntarily in the opinion of the court.
ii) ABA says the judge must be satisfied that the ( has an awareness and understanding of the charges, possible defenses, circumstances and mitigation
iii) Under United States v. Massey (9th Cir. 2005), though, where a client’s attempted to hinder trial procedure, and yet wouldn’t go pro se, the court held this amounted to an unequivocal waiver of the right to counsel.
3. Counsel must be appointed when the penalty of imprisonment is given, not just the mere possibility of it.
a) Scott v. Illinois [USSC, Rehnquist opinion, 1979]
1) ( wanted the rule to say that in cases where there is a possibility of prison because it is an authorized penalty, ( gets counsel.
2) Rule: The penalty of actual imprisonment is the bright line for when state appointment of counsel must happen. (Still the rule in Federal Court.)
3) *Practically speaking: judge is prejudging the evidence based on a presumption of guilt before the trial.
4) Nichols v. United States [1994]: Can an uncounseled conviction be used to enhance a later conviction?
a) Alabama v. Shelton [USSC, 2002], Court held an uncounseled suspended sentence is unconstitutional. (Imposing 90 days in county jail, but will suspend if you attend AA meetings, don’t drink, etc.)
4. In order to prove inadequate assistance of counsel, must meet two prong Strickland test.
a) Two prong test: ( must show (1) that his attorney’s performance was deficient, when measured against an objective standard of reasonableness; and (2) that the ( was prejudiced in the sense that there was a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.
5. Everyone has the right to counsel of his/her choice, except do not have the right to choose appointed counsel.
a) United States v. Gonzalez-Lopez
1) USSC said you have the right to choose counsel and if it’s shown that you were denied this right, don’t need to go through the 2nd prong of the Strickland test and show prejudice
6. If the police interrogated (or deliberately elicited a self-incriminating statement from) a suspect after the adversarial proceeding of the same offense, the 6th A right to counsel applies. (Massiah, Brewer)
a) Although “deliberate elicitation” seems to bear a close resemblance to the “functional equivalent of interrogation” under Miranda, the Court has not treated the concepts as interchangeable.
1) The emphasis of the 6th A context is on the deliberate or intentional nature of the officer’s effort to gain incriminating evidence, while the test for interrogation in the Miranda context is broader: Whether the police engaged in conduct that they could reasonably foresee would elicit an incriminating response from the suspect (even if not designed to achieve that result).
2) A second difference is that “functional equivalent of interrogation” focuses more on the susceptibilities and perceptions of the suspect, while the Massiah doctrine looks more to the state of mind of the officer (did he intend to elicit the confession?).
3) When the rights to counsel attach:
a) 6th A: after an adversarial proceeding
i) No need for custody of suspect
b) 5th A: during a custodial interrogation
i) Must be in custody
4) The 6th A right to counsel is offense specific because it only applies ot already pending charges, whereas the 5th A is not
5) Waiver of the Right:
a) 5th A: the suspect may not be approached after invocation of the right about any crime
b) 6th A: the suspect may be approached about another crime after invocation of the right, but not the same crime
b) Adversarial proceedings are initiated by way of formal charge, preliminary hearing, indictment, information or arraignment.
1) The gov’t may, therefore, deliberately elicit admissions from a suspect prior to initiation of formal proceedings against him without running afoul of Massiah.
2) Texas v. Cobb [2001]
a) Reiterates that the 6th A right to counsel attaches only to charged offenses, and adopts a rather narrow definition of “offense” for these purposes.
b) Cobb, indicted for a home burglary and represented by counsel, was questioned by police in the absence of counsel (after Miranda waiver) regarding the murders of the homeowner and her daughter. He sought to suppress his resulting confession to the murders on the ground that it was obtained in violation of his right to counsel, which he argued attached not only to the offense charged, but to factually closely related offenses as well.
c) The Court disagreed, holding that police may question a suspect about related, but uncharged, offenses without violating the 6th A.
c) In both Massiah and Brewer, the fact that no actual questioning occurred is not significant; it was sufficient that the officers had “deliberately elicited” inculpatory statements.
1) Massiah v. United States [USSC; Stewart opinion; 1964]
a) Facts: Unbeknownst to Massiah, Colson was cooperating with the gov’t and had initiated the conversation at the request of federal agents, who recorded it. This occurred after both men had been indicted, retained counsel, pled not guilty, and were released on bail.
b) Holding: Once adversary judicial proceedings have commenced against an individual, gov’t efforts to “deliberately elicit” statements form him in the absence of his attorney (whether done openly or surreptitiously) violate the 6th A.
2) Brewer v. Williams [USSC; Stewart opinion; 1977]
a) Holding: The Court relied on Massiah and said that Williams had been denied his 6th A right to assistance of counsel when, after the initiation of judicial proceedings, the police deliberately elicited incriminating statements from him via the “Christian burial speech” without affording him the opportunity to consult with his attorney. The evidence was inadmissible.
b) Dissent relied more on the fact that he was guilty and had admitted to it and believed he waived his rights under the traditional Zerbst test.
7. The 6th A right to counsel may be waived by a knowing, intelligent, and voluntary relinquishment of the right.
a) Patterson v. Illinois [1988]
1) A showing that ( had been advised of, understood, and voluntarily waived his Miranda rights suffices to establish a waiver under the 6th A (at least where he has not yet retained counsel).
2) Where the suspect has requested counsel, however the Edwards rule applies. The police may not conduct further interrogation until counsel has been made available, or the accused herself initiates further communication with the police.
b) Michigan v. Jackson [1986]
1) Here the Court held that confessions had been improperly obtained when police questioned the suspects three days after they were arraigned and requested appointment of counsel. A fresh set of Miranda warnings will not constitute a valid waiver.
REMEDIES
A. Source and statement of the Exclusionary Rule:
1. Items seized illegally by federal agents cannot be used as evidence against the person whose rights were violated. (Weeks)
a) Weeks v. United States [USSC; Day opinion; 1914] (exclusionary rule origin)
1) Rule: When items (papers, effects, etc.) are taken in violation of the Constitution, they can’t be used in court later against the (.
2) Rationale: To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such an unauthorized action. (focused on judicial integrity)
3) The Exclusionary Rule requires the suppression of evidence obtained in violation of the (’s Constitutional rights. Applies to the 4th A, 5th A, 6th A, and Fourteenth A.
a) While there is no language in the Constitution specifically requiring the ER, without it, the 4th A “would be a mere form of words.”
2. Applied to the states through the Fourteenth A (Mapp)
a) Mapp v. Ohio [USSC; Clark opinion; 1961] (applied the ER to the states)
1) Rule: The right to privacy is embodied in the 4th A and is enforceable against the States. All evidence obtained by searches and seizures in violation of the Constitution is, by the same authority as in Weeks, inadmissible in a state court.
2) “The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a gov’t more quickly than its failure to observe its own laws, or worse, its disregard for the charter of its own existence.”
3) The Harlan dissent feels that the ER is a remedy, not a Constitutional right. The Majority disagrees and feels that the Weeks ER doesn’t flow from the Court’s supervisory powers, but from Constitutional requirements.
4) The present Court has moved significantly from constitutional right view to remedy and deterrence view.
a) United States v. Calandra (1974): “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”
i) In sum, the rule is a judicially created remedy designed to safeguard 4th A rights generally through its deterrent effect, rather than personal constitutional right of the party aggrieved.
3. Extends to the fruit of the poisonous tree (Wong Sun)
a) Wong Sun v. United States [USSC; Brennan opinion; 1963]
1) Holding: The arrests were not legal, and the statements of Mr. Toy were too closely related to the initial violation (they were the fruits of the poisonous tree) and so are the narcotics as to Mr. Toy; but Mr. Wong Sun’s statements are admissible against him because there has been enough attenuation to dissipate the taint of the arrest without PC.
a) Wong Sun was arraigned and returned on his free will to give a statement.
b) The arraignment dissipates the taint because it’s an intervening act of constitutional authority. And, his free will to return also dissipated the taint.
c) Also, Wong Sun has no standing to object to the drugs, whereas Toy did.
2) “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objective is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
b) Fruit of the poisonous tree does not apply to evidence discovered from a Miranda violation. (Patane, Tucker, Elstad)
1) Oregon v. Elstad [USSC; O’Connor opinion; 1985]
a) Defense argued that the cat is out of the bag and once he’s already confessed, his second confession is causally connected to the first tainted statement. (Argued the derivate evidence or F of PT applies)
b) Rule: F of PT does not apply to Miranda violation (2nd statement)
c) Majority: second statement is admissible because the second statement was made voluntarily and not as a product of coercion. Nothing about giving the first statement leads the second to be involuntary (rejects the “Cat out of the Bag” argument.)
i) Wong Sun requires that a Constitutional violation for the F of PT to apply and so Wong Sun doesn’t apply to this case because a violation of Miranda is not a violation of the Constitution.
d) If the first statement had violated Due Process and been actually coerced, would the second statement be inadmissible? Yes because the first statement would be a result of a constitutional violation. (This is why it must always be argued that a Due Process violation occurred too.)
e) But, didn’t the Court say that the unMirandized statement is presumptively coerced? The Court makes a distinction between actual coercion and presumptive coercion….you must show actual coercion to suppress the second statement.
2) United States v. Patane [USSC; Thomas opinion; 2004]
a) Rule: The ER doesn’t apply to physical fruits of a voluntary statement in violation of Miranda.
b) Rationale: 5th A is concerned with testimonial evidence and not with physical evidence. The 5th A only protects against compelled self-incrimination, not voluntary incrimination.
c) Miranda violation occurs when the statement is admitted at trial. (Goes against Miranda’s general premise.) So, physical fruits are admissible.
4. Exceptions
a) Independent Source
1) When there is an illegal act that leads to evidence, but there are also legal acts that leads to evidence and the illegality hasn’t interfered with the gaining of evidence, then the latter evidence is admissible.
2) The decision to seek the warrant and the warrant itself must have come from an independent source. (Silverthorne)
a) Silverthorne Lumber Co. v. United States [USSC; Holmes opinion; 1920]
i) Rule: If knowledge of facts is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.
3) Test for no independent source (Murray):
a) The decision to seek the warrant was prompted by the illegality OR
b) Information from the illegality was presented to the magistrate and the information effected his/her decision.
c) Murray v. United States [USSC; Scalia opinion; 1988]
i) There is a subjective element to this test. The officer can testify and say, “I wasn’t prompted to get a warrant by the fact that I saw bales of marijuana.”
ii) If the officer uses tainted evidence to show the magistrate that he has PC, but the magistrate isn’t affected, then it is still an Independent Source.
b) Inevitable Discovery
1) Even if the evidence in question is found to have been the fruit of the poisonous tree—evidence that can be traced directly back to the initial illegality and for which there is no Independent Source—suppression can nonetheless be avoided if the prosecution establishes that the evidence would have ultimately been discovered anyway by lawful means.
2) If the police would have inevitably discovered the evidence (in this case, by proceeding with the planned grid-search of the area) the evidence will be admissible. (Nix)
a) Nix v. Williams [USSC; Burger opinion; 1984] (with Brewer v. Williams)
i) FN 12 of Brewer v. Williams left open the door for inevitable discovery of the body
ii) *It must be emphasized that in order to fit within this exception it is not sufficient to show the evidence could have been discovered—the gov’t must demonstrate that the evidence would have inevitably been discovered even absent the illegality.
iii) Issues: Is the inevitable discovery exception constitutionally permissible? Yes.
iv) Both Majority and Dissent agreed with the Inevitable Discovery Exception, but they differed on the burden of proof required.
a) The Dissent said they would require a heightened burden of proof because of the speculation aspect of inevitable discovery. In order to make sure that the hypothetical finding was narrowly tailored, there needed to be a clear and convincing standard vs. the preponderance of the evidence that the Majority requires.
c) Attenuation
1) Evidence that is secured as a result of illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint. (Wong Sun)
a) Evidence obtained as a result of a valid search warrant, but procured after failure to knock and announce is not connected to the 4th A violation and therefore admissible. (Hudson v. Michigan)
b) Where the police have PC to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by a ( outside of his home, even if the statement is made after a Payton violation, because that statement is not the product of the unconstitutional entry. (New York v. Harris)
2) Factors: (Brown)
i) Temporal proximity
ii) Intervening events
iii) Flagrancy of the violation
iv) Nature of the derivative evidence (Ceccolini)
a) Physical or verbal evidence?
i) Rationale: Live witnesses should not be discouraged from coming forward (and they can do that legally whereas inanimate objects can’t come forward on their own); so the constitutional violation must be really closely linked to the discovery of the witness for the Court to allow the witness’s testimony’s exclusion and to hold that attenuation wasn’t present.
3) Miranda
a) A Miranda warning does not automatically dissipate the taint of a 4th A violation. (Brown)
b) Brown v. Illinois [USSC; Blackmun opinion; 1975]
i) The lower court felt that the Miranda rights were sufficient to dissipate the taint because he voluntary made the statement after Miranda.
ii) Majority doesn’t adopt what the lower court proposed:
a) Miranda isn’t sufficient alone and per se to show an act of free will that will dissipate the taint, but it is one factor.
d) Good Faith Exception
1) Evidence does not have to be excluded if the police have a facially valid warrant and have acted in good faith. (Leon)
a) United States v. Leon and Massachusetts v. Sheppard
i) Facts: Leon(
a) Inherent contradiction here because the officer was unreasonable in his assessment for PC, but yet is deemed reasonable in relying on the warrant
b) The way to resolve this contradiction is the fact that the magistrate has looked at the affidavit for the warrant…therefore the officer’s reliance on the warrant is reasonable
ii) Facts: Sheppard( Court holds that the officer was reasonable based on the magistrate’s assurances that he’d change/correct the warrant.
iii) Issue: Despite the fact that there has been a 4th A violation, is there a good faith exception that can bring the evidence in?
iv) Rule: The Good Faith Exception to the ER(where evidence is obtained through a search warrant, later declared to be invalid, that evidence may be admitted, if a reasonably well-trained police officer would have believed that the warrant was valid.
a) This is an objective test, but on the particular facts of the case
b) And the key is reasonable reliance on the warrant
v) Holding: The ER should not apply when the officers acted in “good faith” because probative evidence should not be excluded when the officers make reasonable mistakes regarding the legality of warrants.
vi) Rationale: No deterrence to the particular officers because they’re acting reasonably based on what the magistrate did
a) Justice Brennan’s dissent says, though, that when deterrence is discussed it should be the entire police practices, not just one particular officer
2) When the good faith exception does not apply:
a) When officers misled the magistrate with information that they knew was false or would have known was false if they had not recklessly disregarded the truth.
b) When a magistrate was has wholly abandoned his/her neutral and detached role.
c) When it is entirely unreasonable for officers to have believed that PC existed.
d) When a warrant is so facially deficient that it is unreasonable for officers to have resumed that it was valid.
e) When it is a warrantless search.
3) The Good Faith exception has been extended in two situations:
a) Illinois v. Krull [1987]: searches taken place under statutory authority that were later deemed unreasonable, but there was good faith reliance on the statute and the Court found that was reasonable.
b) Arizona v. Evans [1995]: search was reasonable on erroneous computer records; a reasonable police officer would rely on the computer records and that the good faith exception applies.
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