6th Amendment – Right to Counsel



6th Amendment – Right to Counsel

I. Introduction

a. Two fundamental processes of criminal procedure

i. Method of interpretation

1. meaning and scope of relevant constitutional provisions

2. determines outcome

3. 2 styles of constitutional interpretation

a. living constitution approach

i. courts and judges interpret the constitution

ii. changes over time depending upon the court and the trends of society

iii. Justice Brennan

b. literal interpretation

i. just what the clauses of the constitution state

ii. no judicial interpretation

iii. Justice Black

ii. Determines the extent of constitutional authority over the states

1. Federalism

2. language of the 14th amendment due process and equal protection clause

b. Bill of Rights

i. Bound to states by the 14th amendment

1. Original inception to restrain governmental oppression

2. After the civil war 13th, 14th and 15th amendments added

ii. 14th Amendment: “No state shall deprive person of due process of life, liberty and property without due process of law

1. 14th applied to federal law but didn't originally apply the Bill of Rights directly to the states

2. Radical Republicans lobbied to apply all aspects of the Bill of Rights to the states, at least the first 8 amendments and the 15th (voting rights)

3. Due process clause interpreted to incorporate the Bill of Rights guarantees to apply to the states

II. Incorporation Theory

a. 3 approaches of incorporation

i. Total incorporation:

1. Argues that all the guarantees given in the Bill of Rights are “incorporated” into the 14th, and are thus applicable to the states.

2. states bound by principles of first 8 amendments

ii. “Fundamental Fairness Test” incorporation:

1. holds that the fact that a particular criminal procedure is prohibited by the Bill of Rights does not necessarily mean that the 14th amendment prohibits its use by the states.

2. Requires only that the states apply those procedures which are “implicit in the concept of ordered liberty” or which are “fundamental to the American scheme of justice”

3. If a procedure is inconsistent with liberty or justice, it cannot be used by the states, whether or not it is prohibited by the Bill of Rights. All other procedures, even those prohibited by the BR, can be applied by the states

4. case by case method – those amendments crucial to maintain fundamental fairness in the criminal justice system

iii. Selective incorporation: used today

1. Not all rights enumerated in the BR are applicable to the states, but if any aspect of a right is so necessary to fundamental fairness that it applies to the states, then all aspects of that right apply.

2. If the right is applicable at all in state courts, its scope is the same as in federal courts.

3. courts decide which guarantees of the Bill of Rights are to be bound to the states

b. Basic premise of Incorporation theory

i. All criminal procedural rights, except 5th (right to grand jury indictments), have been incorporated against the states

ii. Incorporation began in the late 1920’s with the 1st amendment

iii. Framers didn’t intend for due process clause to bind states. Framers intended privileges and immunities clause to bind states

c. BR guarantees applicable to the states

i. 4th right to be free from unreasonable searches and seizures and to have any illegally seized evidence excluded from criminal trials (Mapp v. Ohio)

ii. 5th privilege against self incrimination (Malloy v. Hogan)

iii. 6th right to counsel (Gideon v. Wainright)

iv. 6th right to a speedy trial (Klopfer v. N.C.) and public trial (In re Oliver)

v. 6th right to confront opposing witnesses (Pointer v. Texas)

vi. 6th right to impartial jury (Duncan v. Louisiana)

vii. 5th guarantee against double jeopardy (Benton v. Maryland)

viii. Today all amendments of the Bill of Rights except the 2nd (right to bear arms) and the 7th (right to civil jury trial) apply to the states in some form

III. 6th Amendment Right to Jury Trial

a. Duncan v. Louisiana, 391 U.S. 145 (1968) – [Justice White]

i. Facts: ( convicted of simple battery (misdemeanor) in LA. LA law only provides trial by jury in capital punishment cases and hard labor imprisonment. ( requested trial by jury, which was denied. ( convicted of simple battery and sentenced to 60 days in jail and $150 fine. ( appealed to LA Supreme Court – cert denied. ( applied for writ of cert to USSC for violation of 6th and 14th amendments guaranteeing trial by jury to all criminal (s.

ii. Issue: Was (’s denial by state court of trial by jury a violation of his constitutional rights? Does 14th due process clause include 6th amend. right to trial by jury and require it to be adhered to by the states?

iii. Holding: 14th guarantees trial by jury in all criminal cases where incarceration equal more than 6 months

iv. Implication of Duncan

1. Court applied federal standards to state law

2. Requirement of minimum of 6 man jury – unanimity is not required

3. watered down the BR to apply to states and the backlash felt by federal gov’t causing significant changes in pre-existing federal laws

b. Medina v. California

i. 14th prohibits criminal prosecution of a ( who is not competent to stand trial.

ii. Does due process permit a State to require a ( who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence?

iii. Court in Matthews v. Eldridge established a 3-factor test for evaluating procedural due process claims

1. the private interest that will be affected by the official action

2. the risk of an erroneous deprivation of such interest through the procedure used and the probable value of additional or substitute procedural safeguards

3. the gov’t interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail

iv. It is within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion

v. Court ultimately rejected the petitioner’s argument that the State carries the burden to prove ( not incompetent. States determine procedural laws.

IV. Evolution of 6th Amendment right to assistance of counsel at trial

a. Right to counsel for indigent (s

i. issues arise most often in indigent ( context. Right to retain private counsel isn’t an issue

ii. Right depends upon the severity of incarceration

1. Common law categories of criminal offenses

a. Petty offenses: no imprisonment – fine imposed or maximum of 6 months

b. Simple misdemeanor: penalty over 6 months up to and including 1 year

c. Felonies and Aggravated Misdemeanors: penalty over 1 year to life

b. Powell v. Alabama (1932) - Capital Crimes

i. First case in which a constitutional right to appointed counsel existed

1. Limited holding: applied to capital crimes and those capital crimes where the ( was incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy, etc.

2. Holding not based on 6th but on 14th right to due process because case was so prejudicial to ( that trial was fundamentally unfair

c. Betts v. Brady (1942) - Federal Only

i. 6th amendment right to counsel was not to apply to state trials because lack of appointed counsel did not result in a denial of due process.

d. Gideon v. Wainright, 372 U.S. 335 (1963)- Felony

i. Facts: ( charged with the robbery of a poolroom in Florida. At trial denied request of appointed counsel. Convicted and sentenced to 5 years imprisonment

ii. Overruled Betts v. Brady

iii. Per se rule: Supreme Court held that ( had been denied a fair trial because “any person too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided …”

1. 6th Amendment entitles an indigent ( to appointed counsel

2. Lower courts interpreted Gideon to apply to felony incarceration cases only

e. Argesinger v. Hamlin (1972) - Misdemeanor

i. Extended the 6th right to all indigent misdemeanor (s subject to imprisonment

ii. Court held that no person may be incarcerated/imprisoned without assistance to counsel absent a waiver

iii. Complications of ruling:

1. Does right only apply to actual incarceration or the possibility of incarceration?

2. Is actual incarceration a necessary or sufficient condition? Sufficient

iv. Court only addressed actual incarceration and reserved decision to other offenses not included under Gideon (felonies) or non-felonies

v. Allows discretion to state judges to either appoint counsel or forego incarceration.

f. Scott v. Illinois (1979) - Misdemeanor with threat of actual imprisonment

i. Right to appointed counsel extends only to cases of actual incarceration. Necessary condition added to Argesinger

ii. Did Scott overrule Gideon?

1. Gideon didn’t have an actual incarceration requirement

2. Scott required actual imprisonment – mere threat or fines didn’t impose 6th right

3. Scott court only applied decision to facts of case with maximum penalty of 1 year of $50.

4. Argesinger/Scott apply to petty offenses and misdemeanors

5. Gideon applies to felonies

g. Remedies for 6th violations

i. Gideon: ( felon has conviction reversed with assistance of counsel

ii. Chapman v. California

1. pro-prosecution court and applied “Harmless Error Doctrine”

2. not all constitutional violations require reversal

3. case by case analysis to determine if harmful error

4. (s who use Gideon retroactively and time served and conviction is still harmful, but prior conviction cannot be used for recidivism or sentencing

iii. Scott/Argesinger

1. conviction must be vacated and new trial granted with counsel

2. without actual incarceration conviction stands

iv. Baldasar v. Illinois

1. recidivist statute

2. un-counseled conviction cannot be used to enhance secondary conviction

v. Nichols v. U.S.

1. DUI misdemeanor without counsel

2. Overruled Baldasar. Valid Argesinger/Scott conviction without incarceration can be used in future convictions

V. When does the criminal prosecution begin?

a. Critical stage analysis

i. Two stage Process

1. Whether pre-trial event is part of criminal prosecution

2. Whether pre-trial proceeding constitutes a critical stage that requires lawyer to protect (s right to a fair trial

ii. U.S. v. Wade: developed critical stage analysis of when right to counsel attaches (See page 11)

iii. Powell v. Alabama

1. Confirmed right to counsel included at time of arraignment up through the trial - Affirmed by Gideon

2. 14th requires effective assistance of counsel

iv. Kirby v. Illinois

1. Pre-trial identification

2. Adversary judicial proceeding has been instituted against ( which equates to a criminal prosecution (arraignment, indictment or grand jury)

3. Is proceeding part of the critical stage of the Wade-Gilbert doctrine?

4. test determined if counsel’s presence was necessary to avoid potential substantial prejudice to (s right to a fair trial

b. Preliminary Hearing

i. Gov’t goes to court to determine if there is enough probable cause and evidence to bind ( over for trial

1. Not required under 5th/14th

2. Determined by the states by enacting statutes

3. Prosecutorial discretion

ii. Is ( entitled to have attorney present at preliminary hearing?

1. 6th doesn’t require attorney to be present at Grand Jury hearings

c. Coleman v. Alabama

i. determined that preliminary hearing is part of the criminal prosecution process if ( required to enter a plea

ii. then only is a preliminary hearing a critical stage

iii. Brewer v. Williams

1. Criminal prosecution begins at adversarial judicial proceedings

2. Initial appearance is part of the criminal process - entering plea

3. Critical stage of process

4. No right to counsel at bail hearings

5. In this case, Δ was required to enter a plea, therefore entitled to an attorney

iv. Mempa v. Rhay

1. Right to counsel continues until final imposition of criminal sentence

2. Right to counsel applicable at probation revocation proceedings in which judge imposes a sentence

v. Hamilton v. Alabama

1. Arraignments are critical stages of the criminal prosecution

2. Ex parte proceedings that will not adversely affect a (s legal right is not a critical stage

d. Griffin v. Illinois

i. Supreme Court struck down Illinois statute denying free transcripts to indigent (s where transcript is necessary for appeal

ii. Implication

1. where transcript is not necessary to appeal, state is not required to furnish a free copy to indigents

2. Constitution prohibits state from structuring appellate process to limit appeals to those with financial means

iii. Supreme Court applied equal protection rationale

iv. Held that a state must provide a free transcript of the trial proceedings when submission of a transcript is a prerequisite to appeal

e. Douglas v. California

i. Counterpart of Gideon

ii. Facts: Petitioner appealed as of right to Court of Appeals and was denied counsel. Petitioner wasn’t denied access to the appellate process, only denied assistance of counsel after state determined such assistance was futile.

iii. Supreme Court found state practice unconstitutional and interpreted Douglas as providing counsel under the equality principle of the 14th equal protection

1. Required that counsel be appointed to assist indigent (s in preparing the first appeal from a conviction, at least when the first appeal is available as a matter of right to every convicted (

2. Neither the constitution, nor Supreme Court has held that the right to appeal is automatic.

3. Issue to be decided by the States on an individual basis

iv. Limited holding: declined to decide whether the right to counsel attaches to discretionary higher appeals.

f. Ross v. Moffitt

i. Supreme Court addressed whether Douglas requirement of counsel to first appeal as of right extended to discretionary state appeals. 4th Circuit held yes it extended to discretionary state appeal.

ii. Reversed by the USSC

1. State is not obligated to provide any appeal process McKane v. Daniels

2. Due process doesn’t require the state to provide counsel for discretionary appeals. Equal protection clause doesn’t either.

3. State not required to furnish counsel to indigent (s on discretionary state appeals or writ of cert to the United States Supreme Court

a. Appeal of right to USSC for death and life sentences

b. Appeal of right for all other sentences to be determined by the state court of appeals (in most states, every criminal Δ gets one state appeal)

iii. Supreme Court adopted a narrow view of the Griffin-Douglas equal protection principle

iv. Criticism

1. Inconsistent with the holding in Douglas

2. Distinguishes Douglas and uses new basis for decision under Equal Protection clause

g. Evitts v. Lucy

i. Does due process guarantee criminal ( the right to effective assistance of counsel on appeal? YES

ii. Two lines of cases

1. 14th guarantees right of adequate and effective appeals

2. trial level right to counsel equals effective assistance of counsel

iii. Right to effective assistance of counsel recognized by the lower courts

1. affirmed by 6th Circuit decision that ( has the right to effective assistance of counsel

2. USSC affirms for appeals as of right

iv. Mayer v. City of Chicago: Indigent ( must be provided with free transcript for all sentences including fines and non-imprisonment

v. U.S. v. McCollum: court upheld 28 USC § 753 requiring free transcripts for indigent (s only if trial judge certifies claim as not frivolous and transcript is necessary for appeal

h. Morrissey v. Brewer

i. Paroled revocation not part of criminal prosecution proceeding

ii. but, due process does apply requiring certain procedural protections for (

i. Gagnon v. Scarpelli

i. Probation revocation hearing doesn’t invoke 6th

1. Must be applied on a case-by-case basis

2. ( on probation from a prior felony and probation revoked without hearing, court held assistance of counsel not required

ii. 3 part test to determine if assistance of counsel is required during probation revocation

1. ( did not commit the violation in which probation is being revoked

2. probationer claims there were mitigating reasons for violation

3. intellectual capacity of probationer is inadequate

a. 3 part test must be satisfied for due process appointment of counsel

b. 18 USC §4214 mandates counsel for all indigent (s in federal court

VI. Pro Se Representation

a. Follows waiver of (s right to counsel

b. Adams v. U.S.

i. Supreme Court held the right to assistance of counsel implicitly embodies a correlative right to dispense with a lawyer’s help

ii. An accused, in the exercise of free and intelligent choice and with the approval of the court, may waive trial by jury and therefore can competently and intelligently waive Constitutional right of assistance of counsel

c. Faretta v. California

i. Issue of whether a ( in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently waives his right

ii. May a state hale a person into court and force a lawyer upon him, even when ( insists he chooses to conduct his own defense?

1. At trial ( waived his right to counsel. Judge held there was no right to pro se representation and ( must use appointed counsel

2. Supreme Court held that the right to counsel and the right to pro se representation were 2 independent rights

3. Court addressed two implications of allowing ( to represent themselves pro se

a. Policy: if ( does not want counsel to represent him, then the representation will be ineffective

b. Choice: the ( bears the consequences of a conviction. Thus ( should be able to have autonomous right not to be represented.

c. Autonomy supersedes government effort to assist a criminal (

d. Origin of pro se representation

i. Statutory - § 35 of Judiciary Act. Later codified as 28 U.S.C. § 1654

ii. State law: Most state constitutions include some provision for pro se representation

e. McKaskle v. Wiggins

i. ( indecisive as to whether he wanted to be represented by counsel or not. ( selectively used aid of counsel to conduct defense, but once convicted Δ argued that he was prohibited from conducting an independent pro se defense.

ii. Supreme Court held that if pro se ( invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the (s consent, at least until ( expressly states otherwise.

1. pro se ( is entitled to preserve actual control over the case he chooses to present to the jury

2. participation by standby counsel without (s consent should not be allowed to destroy the jury’s perception that ( is representing himself

f. **Once ( chooses to represent himself pro se they cannot on appeal raise the issue that they were not represented by effective counsel. ( must waive that objection on appeal.

VII. Effective Assistance of Counsel

a. Developing the Standards regarding effective assistance of counsel

i. McMann v. Richardson: 6th guarantees the right to effective assistance of counsel

ii. Geders v. United States: an attorney may not be prohibited from conferring with client during an overnight recess that falls between direct and cross examination

iii. Herring v. New York: an attorney may not be denied the right to give a closing summation in a nonjury trial

iv. Ferguson v. Georgia: the state may not prohibit the attorney from eliciting the client’s testimony on direct examination

v. Brooks v. Tennessee: the state may not restrict the attorney’s choice as to when to put the ( on the stand

vi. Perry v. Leeke: trial court may prevent an attorney from conferring with his client during a 15-minute recess immediately following direct and preceding cross examination

vii. Stone v. Powell: ( may not relitigate 4th issues on habeas if state provided an adequate opportunity to litigate the issue at trial (issue preclusion)

viii. Wainright v. Sykes: ( may not litigate on habeas claims that were procedurally defaulted in state court, unless ( can show “cause” for the default and prejudice

b. Strickland v. Washington: effective assistance of counsel for death sentence

i. Facts: ( committed multiple felonies – indicted for murder and confessed to subsequent murders. ( waived right to jury trial or jury recommendation at sentencing against advice of counsel. At plea colloquy, ( claimed serious emotional distress and that he had no prior criminal record. ( sentenced to death.

ii. ( appealed ineffective assistance of counsel on several grounds

1. counsel failed to move for continuance to prepare for sentencing

2. failure to request psych exam

3. failure to investigate character witnesses

4. failure to seek PSI report

5. failure to present meaningful argument to sentencing judge

6. failure to investigate medical examiner’s report

iii. 2 prong test for ineffective assistance of counsel

1. counsel’s performance deficient. Requires showing that counsel made errors that were so serious that counsel didn’t function under 6th guarantees

2. ( must show deficient performance prejudiced defense. Serious error to deprive ( of a fair trial. ( must show that counsel’s representation fell below an objective standard of reasonableness

c. Chatman v. California: harmless error doctrine

i. Even though constitutional error occurs there is no harm

1. Conviction will not be overturned

2. Gov’t bears burden of showing that ineffective assistance of counsel was harmless

ii. Strickland Constitutional error - Only in this context does harmful error apply

1. ( must show reasonable probability that, but for counsel’s unprofessional error, the result would’ve been different.

2. Burden shifted back to ( and implied 2 part test

a. Substandard counsel

b. ( must show prejudice (must show result would have been different)

c. ( bears burden to prove harmful error

d. Cases satisfying test of ineffective assistance of counsel

i. Smith v. Murray: used to evaluate appellate counsel

ii. Kimmelman v. Morrison: guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt

iii. Burger v. Kemp

1. Limited presumption of prejudice

2. Must show actual conflict of interest hindering ( assistance

a. ( must still show 1st prong – active conflict of interest that is substandard, then limited presumption attaches

b. ( relieved of showing prejudicial result that would’ve been different

VIII. Right to Counsel at lineups, show-ups and photo arrays – Wade-Gilbert Rule

a. Supreme Court implemented the rule that a suspect, at least after indictment has an absolute right to have counsel present at any pretrial confrontation procedure.

i. Such confrontations include both lineups and one-man showups

ii. Pre-trial proceedings right to counsel at ID proceedings

1. line-up – most commonly used, strong evidence of identity

2. show-up – only one suspect is shown to witness

3. photo-ID

a. photo array: numerous pictures

b. photo display: photo show-up and only ( photo

iii. 4 potential constitutional arguments to ID procedure

1. ( claims ID fruit from illegal arrest and therefore invalid under 4th fruit of poisonous tree doctrine

2. ( argue ID violates 5th self-incrimination - Schmerber v. California:

3. Testimony taken in violation to 6th right to counsel

4. Evidence violates due process of law

b. U.S. v. Wade

i. 2 eyewitnesses picked ( out of lineup after they saw ( standing in hall w/FBI in handcuffs and shackles. ( appealed on violation of 6th

ii. USSC held that lineup is a critical stage of criminal process, therefore 6th attaches.

1. 6th guarantees right to assure a meaningful defense – confrontation clause of 6th

2. inherent prejudicial suggestiveness of lineup procedures must be safeguarded

3. right to counsel not for evidentiary pre-trial procedure (fingerprints, blood and DNA samples) because those procedures use expert witnesses who can be cross-examined. Also procedures are more scientific in nature and not subject to prejudice

c. Gilbert v. California

i. Lineup conducted in an auditorium in which there were 100 witnesses to several alleged offenses committed by (. Witnesses made wholesale identification of the ( in the presence of each other

ii. Per se exclusionary rule: all evidence or testimony obtained without counsel is excluded from trial “fruits” of an unconstitutional procedure

1. Wade didn’t apply per se exclusionary rule because facts allowed for in court ID of (.

2. Wade Employed and independent source test

a. Issue was not the admissibility of evidence of the lineup because (’s counsel solicited ID info on cross-examination.

b. Gilbert – prosecution tried to admit evidence, therefore per se exclusionary rule applied

3. Independent Source test adopted from Wong Sun v. U.S. – fruits of a poisonous tree doctrine. 7 factors evaluated. Must be “clear and convincing evidence”

a. Prior opportunity to observe criminal act

b. Existence of discrepancy between pre-lineup and (’s actual description

c. Witness ID prior to lineup

d. Witness Failure to ID (

e. Lapse of time between crime and ID

4. ID’s can be admissible and then impeached at trial

d. US v. Bierry

i. Limitations of counselor role at lineup

ii. Wade counsel can only attend and observe lineup and object to procedures

1. Counsel cannot object to lineup

2. Counsel cannot insist upon lineup. No constitutional right to ID procedure

3. Counsel cannot attend witness interviews before or after ID

e. Guidelines for proper lineups

i. Gov’t officials sitting with witnesses should not know which person is the culprit – avoid unconscious suggestion “Rosenthal Effect”

ii. Witness shouldn’t be pressured to make an ID. Gov’t should not tell witness that suspect is in the lineup

iii. Avoid disparaging lineups – have all people look similar with similar clothing and physical characteristics

iv. Harmless Error Rule applies to pre-trial ID

1. Majority of misconvictions come from false ID

2. Pre-trial ID doesn’t create reversible error if there is an independent source for ID

f. Show-up

i. Must apply Wade-Gilbert Rule

ii. Moore v. Illinois: suggestibility is more applicable in show-up procedures

g. Kirby v. Illinois

i. ID occurring before commencement of any prosecution does not employ Wade-Gilbert Rule

ii. A criminal procedure does not start at arrest, only if Δ is charged with crime and booked

h. US v. Ash

i. Photo-ID procedure

1. ( could not be ID by witnesses during commission of crime

2. FBI interviewed witnesses of photo’s and witnesses couldn’t definitively ID (

ii. Issue: does 6th attach to photo-ID once the criminal prosecution has commenced. Is photo array a critical Stage

1. Supreme Court held no.

2. Only a critical stage if ( is present at trial-like confrontation with Gov’t and presence of counsel necessary to offer legal advice or “guidance”

3. Photo array isn’t as prejudicial as lineup and whatever prejudice does occur can be impeached at trial

4th Amendment - Search and Seizure

I. History of 4th Amendment

a. 4th contains two clauses

i. Reasonableness clause

ii. Specific warrant clause

1. provisions requiring particularity

2. describing persons/places to be seized or searched

3. employed to limit government intrusion

b. English Common law issued general warrants

i. Allowed crown official to seize, arrest and search any person within the jurisdiction

ii. No probable cause requirement

c. American Common Law

i. Under limited circumstances gov’t can conduct warrantless searches

ii. Warrant required for Misdemeanors

1. aggravated misdemeanor or personal observance of offense created exception

2. felonies required reasonable grounds to arrest

a. murder: immediate search/seizure

b. “hot pursuit” exception – once pursuit ends, search warrant necessary to apprehend suspect in another’s home or property

iii. Per se Unreasonable searches

1. “No Knock” Searches

a. arresting officer must knock and formally announce their presence

b. if officer fails to knock and announce their presence and the homeowner kills the officer, defense of self-defense applies so long as the homeowner had an apprehension of serious bodily injury

2. Nocturnal Searches

a. Searches had to be conducted between dusk and dawn

b. Conducting searches at night was considered uncivilized regardless of the existence of some form of exigency

iv. Allowed search incident to arrest of person regardless of warrant

d. During 18th/19th century 4th was enforced through strict liability tort action with damages imposed for violations

II. The rise and fall of Boyd

a. Boyd v. U.S. (1886) - Search/Seizure of private property is per se unreasonable

i. Facts: (’s business entity contracted with gov’t to build municipal building. Under contract ( could import materials duty free. Gov’t suspected ( was violating limits of contract

ii. Violation of § 12 of Act (today Civil Forfeiture Act of 1990) requires immediate forfeiture of goods, items, property, etc.

1. Act stated that gov’t could seize any papers, books, etc., to be used as evidence to show act was violated. If ( failed to produce items to disprove allegations, then gov’t considers allegations to be confessed

iii. ( argued that Act was unconstitutional and violated 4th/5th

1. 4th- compulsory production of invoices amounted to an unreasonable search and seizure

a. does 4th apply to production of invoices equal to subpoena duces tecum? Regarded as search/seizure because the substantive purpose is the same

b. Is search/seizure reasonable?

i. The purpose of the search renders it unreasonable even though the methodology undertaken by the gov’t may have been proper

ii. The target of the order was to produce the documents which were private papers relevant to (’s business transactions.

iii. Papers considered to be private property, which the gov’t does not have the right to possess.

iv. Court held that property, unless contraband which gov’t has the right to, is immune from 4th amend. searches.

1. Gov’t has the right to contraband because they have a legitimate interest in the property

2. Contraband may be introduced as evidence because of the government’s higher interest

v. 5th – does the admittance of (’s business records violate the privilege against self-incrimination?

1. 5th applies to all criminal prosecutions

2. civil forfeiture is not a criminal prosecution

a. Supreme Court stated that in this case forfeiture was civil in a civil form, but criminal in nature because of possible criminal penalties for violation

b. If statute contemplates penalties that are criminal in nature, then proceeding can be regarded as criminal

vi. Has 5th been violated?

1. In forfeiture proceeding, the evidence would have been confessed against ( if they failed to produce invoices

2. Provided sufficient evidence of compulsion toward self incrimination

b. Implications of Boyd

i. Does 4th apply to court order compelling production of personal property (subpoena duces tecum)?

1. Court order is to be treated as a search/seizure even though aggravating circumstances are absent because if ( fails to comply, then forfeiture

2. Is subpoena duces tecum an unreasonable search/seizure

a. If object or items to be searched are “private property” then it is off-limits

b. Boyd created a per se rule that “private property” which the gov’t intends to use as evidence is unreasonably, therefore unconstitutional

c. Gov’t can only seize contraband and any illegal goods or things that are not private property

d. Mere evidence rule: gov’t cannot search for items that are to be used as mere evidence.

e. Gov’t must have a right to possess such items (contraband)

c. Gouled v. U.S.

i. Extended Boyd and Constitutionalized “mere evidence rule”

1. according to rule: an officer conducting a search had the right to seize instrumentalities and fruits of the crime, but had no right to seize other personal items which are mere evidence

2. property seized that gov’t doesn't have a higher interest in obtaining is unconstitutional

3. extended to any physical property (Boyd = papers)

4. warrants should only be resorted to when the public or the complainant asserts a primary right to the property to be searched

ii. Court stated “no special sanctity” of papers, but there is on all private property

1. whether evidence contained words or evidence to be used to incriminate must be disregarded

2. narrowed private property protections

d. Boyd-Gouled interpretations

i. Hale v. Henkel

1. Right against self-incrimination does not apply to business organization

2. Not private property

3. Has applied to corporations, partnerships and labor unions

ii. Shapiro v. U.S.

1. required records doctrine

2. no person can invoke the 4/5th to justify refusal to comply with valid subpoena compelling the production of records that the person is legally required to keep

3. gov’t given power to obtain any and all information it wants

4. decision represents a complete rejection of the limitations that Boyd placed on the required production of documents

iii. Marchetti v. U.S. : protections under the required records doctrine

iv. Marron v. U.S.: Further limited protection of the mere evidence rule

1. Court permitted seizure of any instrumentality of crime.

2. Papers used as instruments of crime could be seized regardless of whether the gov’t had a valid interest in them or not.

3. Once papers were used as part of a crime they become contraband and are no longer private property

4. Required records doctrine: 3 conditions must be met in order to apply doctrine

a. the records have to be used for valid administrative or regulatory purpose, not for criminal purpose

b. records must have some public aspect

c. the records must be of the type that are normally kept by people engaging in such activity

e. Dismantling of Boyd Gouled Doctrine

i. Schmerber v. California

1. Facts: ( convicted of drunk driving and forced to give blood sample without consent. ( convicted and appealed under 4/5th and 14th violations

2. 4th amendment violation:

a. no unreasonable search/seizure

b. Court used modern view that promotes the idea that 4th true purpose is to ensure privacy and dignity

3. 5th - self-incrimination

a. No violation

b. only testimonial or communicative evidence is prohibited

i. blood is not testimonial in nature because ( is not testifying, but experts are

ii. physical evidence such as lie detectors or tests compelling ( to some sort of psychological evidence is not governed by 4th

4. Black’s dissent stated that language of 5th doesn’t use “testimonial or communicative” elements to apply

5. 14th amendment

a. no violation because taking of blood does not shock the conscience

6. since no 5th violation, the 4th could only be useful in regulating the practices (intrusions) that were involved in the case by requiring the issuance of a warrant based on probable cause.

a. 4th is a procedural regulation to ensure that S/S are not unreasonable

b. Court held that 4th did apply to the search, but the search was reasonable under the circumstances

7. Weakens Boyd-Gouled by separating 4th and 5th amendments

ii. Warden v. Hayden

1. various items of clothing owned by ( were recovered from (’s home. Search deemed to be incident to arrest following a “hot pursuit”. 4th Circuit held arrest and search were procedurally correct, but that the search could not reveal mere evidence unless the gov’t had a proprietary interest. Supreme Court overruled 4th Circuit

2. Eliminates mere evidence rule

a. Justice Brennan claimed that the mere evidence rule was only a property notion that did not comport with the modern understanding of privacy, which involves ensuring dignity of person

b. Thus, if search is conducted pursuant to valid search warrant based upon probable cause, then any evidence can be seized and admitted at trial

iii. Andersen v. Maryland

1. Issue: does introduction of documents into evidence violate privilege against self-incrimination if documents seized include handwritten notes?

a. Court held no need to conduct 4th analysis because case occurred after Warden, whereby the search was permissible since it was conducted under proper authority of law (warrant and probable cause)

b. Court discussed Boyd, but dismissed its doctrine by calling it dicta

c. ( voluntarily wrote seized documents, thus there was no compulsion and so 5th didn’t apply

iv. Fisher v. U.S.

1. Facts: summons issued to ( and attorney to produce tax documents prepared by accountants. Documents in attorney’s possession. ( claimed attorney client privilege applied

2. Court held attorney client privilege only protects the documents if the 5th would provide protections of the documents if they were in the possession of the taxpayer.

a. Documents were voluntarily prepared by (, thus no compulsion to implicate 5th protection against self-incrimination

v. U.S. v. Doe: collective entity doctrine

1. an individual cannot protect corporate papers as a custodian of documents

2. a corporation cannot claim protection of an individual’s 5th right

vi. Braswell v. U.S

1. subpoena issued requiring a representative of a company to produce documents. Representative attempted to quash subpoena because the mere production of documents would be incriminating

2. Court rejected argument stating that the collective entity doctrine prevails rather than yields to the incriminating act of production because the act of production is not targeted at the representative, but at the corporation and cannot be used against representative directly

f. Problems with 5th amendment jurisprudence

i. Compulsion and production of documents indicates the following:

1. the existence of the documents

2. the possession of the documents by the accused

3. the belief on behalf of the accused that the documents produced are those described in the subpoena (authentication)

ii. the mere process of production can be regarded as incriminating before any consideration of their content occurs

iii. According to Fisher, the testimonial privilege only applies if the by-product of the production process in non-communicative

III. The meaning of Search and Seizure

a. Katz v. U.S. (1967) - Reasonable Expectation of Privacy

i. Extended 4th amendment to recording of oral statements

ii. ( was convicted for transmitting gambling information over telephone. The police become aware of the phone conversation by conducting electronic surveillance of a phone line that ( was using.

iii. Is a public telephone booth within the protections of the 4th

iv. Court took a more flexible approach to the 4th amendment because the framers of the Constitution most likely did not contemplate the ability of law enforcement personnel to eavesdrop in such a technologically advanced manner.

1. Boyd (5th amendment) did not come into play because the ( was not compelled to make the statements and, in fact, made the remarks voluntarily

a. The gov’t asserted that Olmstead v. U.S. applied to the case, whereby there was no need to conduct a 4th inquiry because there was no physical penetration of the telephone boot

b. Court rejected argument and held that the 4th protects not only the seizure of tangible items, but extends as well to the recording of oral statements that are overheard without any actual trespass

c. The recording of the conversations was a search that fell under 4th protections.

i. Search violated Constitution because it was conducted outside the judicial process and is per se unreasonable.

ii. Search was invalidated and evidence seized was therefore excluded

2. Justice Harlan’s concurrence, more clearly delineated the doctrine of Katz

a. The person must have exhibited an actual (subjective) expectation of privacy

b. The expectation of privacy must be one that society is prepared to recognize as “reasonable”

v. Police believed that they were conducting valid search and seizure because under Olmstead and Goldman police were not required to get a warrant

1. No 4th violation because no “physical intrusion” on property. No trespass outside phone booth and no search under Boyd

2. Court believed they were expanding Boyd, but unintentionally limited 4th protections against gov’t intrusion

a. Katz is an unintended consequence of legal reform.

b. Opinion set forth new test for 4th protection

i. Subjective expectation of privacy

ii. Objective expectation of “reasonable” privacy

vi. Implication of Katz: developed new threshold test.

b. U.S. v. White (1971)

i. Undercover agent wore a transmitter that allowed conversations with ( to be recorded and later used as evidence of narcotics activity. At the time there was no probable cause to believe ( was involved in criminal activity, therefore no warrant could be issued

ii. Cited On Lee case regarding gov’t agent with transmitting devices.

1. On Lee was decided under Boyd’s physical trespass analysis, therefore because ( gave consent and there was no consent by fraud.

2. 4th doesn’t apply to non-trespasses. Katz held electronic eavesdropping is subject to 4th

iii. ( revealing information to another who they trust doesn’t elicit a reasonable expectation of privacy.

1. does gov’t have right to listen to other’s conversations between ( and an informant?

a. Under White, yes

b. Consent to relay information to another doesn’t allow 4th protections.

i. Gov’t informant consented to have conversation recorded, but ( didn’t. Court stated that consent no needed because ( willingly conversed with informant.

ii. Testimony of informant alone doesn’t violate 4th, therefore more accurate rendition of conversation shouldn’t violate 4th.

iv. Under Katz analysis, didn’t ( have a reasonable expectation of privacy?

1. Court stated no because everyone runs the risk of hearsay from others

2. ( didn’t have an expectation of privacy from not being recorded either because informant consented.

IV. Open Fields and Curtilage

a. Hester v. U.S.: open fields doctrine permits police officer to enter and search a field without a warrant

b. Oliver v. U.S.: open fields do not have 4th protections.

i. Exception to 4th. Applies to anything happening in open field

ii. not subject to 4th requirements of probable cause or warrants

iii. 3 factors

1. historical

2. current social interest

3. act or appropriate locale of private life

iv. No objective expectation of privacy in open filed.

1. Open fields do not provide setting for “intimate activities”

2. Under Boyd action could be brought for trespass and search.

a. Therefore, shouldn't 4th apply.

b. Court rejected prior property trespass issues

3. Even though police needed to enter property in order to see open field because field was not visible from public common area, Court found that area was still considered to be an open field, no covered by the 4th.

c. U.S. v. Dunn

i. Counterpart to Oliver

ii. Facts: DEA agents entered (’s land through barbed wire fences and entered barn located 50 yards within the boundary of property. Barn was connected to house, but Court concluded agents didn’t enter curtilage of house and were in the “open field”

iii. Court determined factors of curtilage that will be protected by 4th

1. proximity of area claimed to be curtilage

2. area included within enclosed area surrounding home

3. nature and use of area

4. steps taken by resident to protect area from observation

iv. gov’t used information obtained from search of open field as probable cause to get search warrant

d. Florida v. Riley

i. Curtilage issue involving backyard of home.

ii. Under Dunn, curtilage doesn’t automatically invoke protections of 4th

iii. Aerial surveillance exception to curtilage protection of 4th applied in following cases:

1. California v. Ciralo:

2. Dow Chemical v. U.S.

a. Use of enhanced surveillance equipment does not violate 4th.

b. Lower courts have disagreed with Dow

3. Aerial surveillance does not constitute a search or seizure

4. Sensory enhanced imaging also does not violate 4th if gov’t has the right to be where they are and are still within the public domain.

V. Threshold definition of Seizure within 4th Amendment – 3 Tests

a. Brower v. County of Invo

i. Facts: ( was driving a stolen car when he crashed into a roadblock constructed by the police. The roadblock was made out of 18-wheeler tractor-trailers and was well concealed and unilluminated. ( was killed during crash. (’s heirs brought civil rights action alleging (’s 4th amendment rights were violated

ii. Court held that unreasonable seizures must be evaluated through means intentionally applied.

iii. Accidental collision or unintentional restraint does not equal a seizure

b. U.S. v. Mendenhall

i. Facts: DEA agents stopped Δ as she walked through Detroit Airport and identified themselves as DEA agents and asked to see Δ's identification and airline ticket. Airline ticket had different name then ID and they asked her how long she had been in California (where flight originated). Agent asked Δ if she would accompany him to the airport DEA office for further questioning. Δ agreed and was searched with her consent

ii. Court held that there was no seizure since Δ was free to leave

1. Court applied reasonable person standard of whether it was believed that they were free to go

a. No seizure unless a reasonable person would believe that they were not free to go

b. Objective test

c. No (’s belief, but what a reasonable person believes in the same situation

2. Court outlined certain circumstances which might indicate a seizure, even when the person did not attempt to leave

a. threatening presence of several officers

b. display of a weapon by the officer

c. physical touching

d. use of language or tone of voice indicating that compliance with the officer's request might be compelled

iii. Michigan v. Chesternut

1. Court must view all circumstances surrounding the incident

2. Reasonable person test – whether they think they are free to go

3. Reasonable person = a law abiding citizen in that situation at that time

iv. Florida v. Bostwick:

1. Facts: 2 officers wearing badges boarded a bus as part of a random drug sweep. Officers approached Δ and asked to inspect ticket, ID and luggage. Δ gave consent to search and officers found cocaine in luggage.

2. used Mendenhall reasonable person test

c. Hodari D :

i. Facts: ( fled after 2 police officers pursued him in their vehicle. One officer pursued ( on foot and succeeded in tackling ( and arresting him. Just prior to being tackled, ( dropped what appeared to be a small rock, which was later found to be cocaine. ( appealed on the basis that crack cocaine was the fruit of an illegal seizure

ii. Issue: whether ( was seized by officer when he dropped crack?

1. Court held that the circumstances of this pursuit were not sufficient to constitute a seizure.

2. 4th didn’t apply at the time when the crack was dropped. The dropping of the crack by ( gave rise to sufficient probable cause for the actual arrest that followed

iii. Seizure does not occur until some actual constraint of suspect (such as taken into police custody)

iv. ( alluding arrest isn’t a seizure because no actual constraint

VI. Exclusionary Rule

a. Justifications for Exclusionary Rule

i. Reciprocity between rights and remedies

1. if cost of remedy for 4th violations too burdensome, courts can either:

a. get rid of Exclusionary Rule; or

b. limit right

2. if right diminishes, then application of remedy diminishes

a. fewer searches, fewer remedies

b. fewer seizures, fewer remedies

ii. A number of courts have viewed Exclusionary Rule as too costly

1. USSC has stated that Exclusionary Rule is not a part of 4th

2. judicially instituted doctrine and can be eliminated by Congress

b. Weeks v. U.S.

i. Initial Exclusionary Rule remedy

ii. Facts: ( charged with using mail system to promote illegal gambling and some of the evidence against him consisted of letters and documents seized from his home during warrantless search. ( moved to have property returned on the basis that it was illegally seized. Court granted request but admitted the evidence at trial.

iii. Supreme Court overturned conviction and ordered a new trial conducted without entry of seized evidence.

1. Court held that permitting the evidence would render the 4th amendment to be of no value

2. Court also believed that by failing to exclude the evidence, the Court would be condoning misconduct on the part of the gov’t .

3. By implementing the Exclusionary Rule, the Court asserted their judicial power in order to preserve their judicial integrity

iv. Exclusionary Rule not binding on the states, only federal court

c. Wolf v. Colorado

i. Issue: does Exclusionary Rule apply to the states? Court held NO

1. Due process opinion applying core of 14th to states.

2. Is Exclusionary Rule part of the due process clause of 14th?

ii. Court held that in a prosecution in a state court for a state crime the 14th does not forbid the admission of evidence obtained by an unreasonable search and seizure

1. Exclusionary Rule is not made binding on the states

2. Court acknowledges that the 14th is indeed binding on the states, but that the Exclusionary Rule is not an essential element of the protections afforded by the 14th

3. Justice Frankfurter concluded that Exclusionary Rule would be too burdensome to import upon the states

d. Mapp v. Ohio

i. Facts: Police believed that a notorious bomber was located inside (’s house. Officers attempted to enter (’s home without a warrant. After ( refused entry, officers entered by force and subdued (. Officers searched entire house and although the bomber was not found, police found obscene material in a locked case located on premises. ( convicted of possessing lewd and lascivious materials.

ii. ( appealed that under due process clause of 14th this case presented special circumstances because of the egregiousness of police behavior and that evidence was obtained by an illegal search and all evidence produced should be excluded

iii. Court abandoned previous ruling in Wolf and held that Exclusionary Rule applied to the states

1. recognized one of the reasons for imposing Exclusionary Rule is to deter police misconduct and abuse

2. reaffirmed the judicial integrity of the Court

e. Linkletter v. Walker

i. Mapp not applied retroactively

ii. Exclusionary Rule not Constitutionally required and can be revoked by Congressional mandate

iii. Deterrence is primary objective of Exclusionary Rule

VII. Probable cause and the Warrant Process

a. Second clause of 4th requires “probable cause” for the issuance of a warrant

b. Supreme Court has held that except in a few limited exceptions the 4th requires probable cause for a warrant

c. Rationale for requiring probable cause

i. Searches conducted pursuant to warrants are preferable to warrantless searches

ii. If warrantless searches upon less than probable cause were Constitutional, there would be no incentive to seek warrant.

iii. Courts favor the involvement of a neutral and detached judicial officer in the issuance of warrants

1. process allows the judiciary to oversee the practices of the executive

2. the executive (in the form of the police) is required to explain and provide reasoning for their intended practice

d. Probable cause

i. Based on more than bare suspicion

ii. Officer must have reasonable belief under the facts and circumstances within the officer’s personal knowledge and of which they had reasonable trustworthy information

iii. More probable than not that a crime has been committed – over 50% belief

1. arrests: probable cause must relate to the person being arrested

2. searches: probable cause must exist to believe that the items sought will be found in the place to be searched

e. Cases

i. Wong Sun v. U.S.

1. quantum of information which constitutes probable cause

a. evidence which would warrant a man of reasonable caution in the belief that a felony has been committed

b. must be measured by the facts of the particular case

2. gravity of the crime must be taken into consideration

ii. Draper v. U.S.

1. gov’t informant regularly gave narcotics agent information. Informant gave information relating to ( trafficking drugs. Informant gave detailed physical description of (, clothing and baggage in which drugs were contained. ( convicted of transporting narcotics and appealed on the grounds that police did not have probable cause to arrest him

2. Court held that although statements provided by informant were hearsay, they were sufficient to give rise to probable cause to arrest

a. Probable cause existed because of accuracy of informant’s descriptions

b. Police verified most of the information based upon the informant’s tip.

iii. Jones v. U.S.: substantial basis for crediting hearsay then probable cause exists

iv. Aguilar- Spinelli Test

1. challenged search warrant requires gov’t to demonstrate

a. informants veracity, credibility and reliability

b. gov’t demonstrates informant’s basis of knowledge

2. Veracity Prong

a. Honesty and trustworthiness

b. Satisfied either by gov’t demonstrating general credibility or specific credibility/reliability of informant on this occasion

c. General

i. past track record

ii. presumption of honesty given to public tips

iii. demonstrable honesty: McKray v. Illinois

d. Specific

i. informant’s statement is believable for some intrinsic reason – US v. Harris

ii. declaration against own legal interest

iii. Statutes governing false information: Adams v. Williams

3. Basis of Knowledge Prong

a. Informant is speaking from relevant basis of knowledge

b. Gov’t can demonstrate

i. Direct proof: first hand observation

ii. Indirect proof: examine the tip for self-verifying detail

4. Lower courts application of Aguilar-Spinelli Test

a. Pre- Aguilar, cases found probable cause on “substantial basis” of Jones – Draper Test

b. Can corroboration satisfy both prongs of Aguilar-Spinelli? Partial corroboration doesn’t satisfy basis of knowledge prong

v. Illinois v. Gates

1. Facts: letter sent to police indicating that (s (husband and wife) were engaged in drug transporting from Florida to Illinois. Police organized surveillance to corroborate information and details from letter. Police obtained search warrant to search car and home of (. Search conducted of vehicle and large quantities of pot were found – additional narcotics were found in home. ( moved to suppress evidence.

2. Illinois Supreme Court applied Aguilar-Spinelli test and determined that neither prong of test had been met, therefore, evidence suppressed.

3. USSC reversed Illinois decision

a. abandoned Aguilar-Spinelli test and implemented totality of circumstances analysis traditionally used in probable cause determinations

b. Aguilar-Spinelli not a “bright line” test, but only an outline.

c. Didn’t overrule Aguilar-Spinelli, only adopted a more flexible and less mechanical test.

i. Veracity and basis of knowledge still used

ii. Allowed for deficiency of one prong of test to be compensated by the strength of another prong

4. Corroboration under Gates

a. Lawfulness of corroboration detail is irrelevant – look to degree of suspicion

b. Independent police corroboration can strengthen informant tips. Operates as a direct indication of reliability but does not satisfy either prong

c. Corroboration can establish probable cause independently or be filtered through Aguilar-Spinelli factors

5. Standard of Review of magistrates issuance of probable cause warrants

a. Great deference to magistrates decision

b. Court rejected de nova review

c. Look only to substantial chance/fair probability of decision

d. Directly impacted appellate level

i. Warrant application is accessible to police so 4th won’t be violated by not using search warrant

ii. Supreme Court loosened the procedure for getting warrants and preventing reversals on appeal unless clearly erroneous

VIII. Warrant Process

a. Magistrate – neutral and detached

b. Particularity requirement

i. Limits scope of the search

ii. Warrant must state the persons or places to be searched and the items particularly described to be seized

iii. When initiating search, gov’t can only look in places capable of containing the things/persons to be seized

c. Timing of execution

i. Time limitation of search warrants

ii. Must be executed within specified period of time, otherwise stale warrant

d. Knock and announce requirement

i. Under common law, “No knock” search

ii. considered to be per se unreasonable except in exigent circumstances

iii. Ker v. California: no knock search is permissible because of strong likelihood of flight or armed suspects

iv. Wilson v. Arkansas

1. statutes preventing “no knock” searches

2. 43 out of 50 states have statutes requiring knock and announce requirement for execution of arrest and search warrants

a. danger clause

b. refusal of entry clause

3. ( argued knock requirement is part of 4th Amendment

4. Supreme Court held that knock requirement is within the bounds of the 4th, but “no knock” searches are not per se unreasonable.

a. Depends upon the circumstances, but Court didn’t outline specific circumstances in which it is required

b. Lower courts interpreted what is reasonable (i.e. Drug search, flight risk, likelihood of resistance or weapons)

i. Radical approach: blanket exceptions

ii. General approach: case-by-case analysis

v. Richardson v. Wisconsin

1. blanket exceptions to the “no knock” requirement are not constitutional

2. Supreme Court affirmed Wisconsin Supreme Court based on the circumstances of case

a. Vigorous proof is not required to show reasonable/exigent circumstances

b. Police only need to have reasonable suspicion that “no knock” entry is appropriate

e. Nocturnal Searches

i. At common law nocturnal searches were per se unreasonable.

ii. Searches must be conducted from dusk to dawn

iii. Exigent circumstance apply, including reasonable suspicion as in “no knock” searches

IX. Exceptions to Warrantless Searches

a. Warden v. Hayden

i. Facts: cab drivers gave chase of robber and alerted police that ( was in home. Police entered home and recovered various items based on search incident to an arrest under the exigency of hot pursuit.

b. Exigent circumstances

i. Idea that exigency means time necessary needed to get warrant for s/s cannot be completed

ii. If likelihood of obtaining warrant would defeat police efforts, requirement can be abandoned if probable cause exists

iii. Originally used only in emergency situations

iv. Four scenarios giving rise to exigency

1. Hot Pursuit – Warden

2. Possibility of Violence or Imminent Danger – Warden

3. Possibility of Flight by Suspect – Johnson v. U.S. (p. 626)

4. Destruction of Evidence – Schmerber

c. Vale v. Louisiana

i. Facts: evidence seized from (’s home under pretense of arrest warrant. Officers searched house and found narcotics. Police claimed exigency for seizing evidence because of the danger of destruction. ( arrested on front porch and then mother and brother came home. Police entered and searched house and found drugs in a back bedroom.

ii. Pivotal case dealing with exigent circumstances

iii. Supreme Court found no exigency for the possibility of destruction because all parties were in police presence.

1. Police could have legally seized the house and prevented mother and brother from entering until search warrant was issued

2. Louisiana Supreme Court concluded exigency existed because of the imminent danger of destruction of evidence

a. US v. Riley – 5th Circuit case

b. Applied previous La. Supreme Court ruling the reasonable belief that evidence is threatened with imminent danger of destruction is an exigent circumstance.

c. Interpretation has not been overruled as of date by USSC

d. Does not recognize prohibitions of warrantless searches

d. Mincey v. Arizona

i. No exigency for search of “homicide” crime scene

ii. Court held that a warrantless search is appropriate only if the felon is still present.

1. Officers can make a quick sweep of crime scene – Maryland v. Buie

2. 5th circuit has upheld cursory check of premises while executing an arrest warrant

3. Segura: securing dwelling to prevent destruction of evidence is not an unreasonable seizure

X. Automobile Exceptions to Warrant Requirement

a. Carroll v. US

i. Implemented automobile exception to warrant requirement based on the possibility of flight – mobility of cars

ii. Facts: Under Volstead Prohibition Act officers could search people entering from Canada/Mexico under reasonable suspicion of smuggling in liquor. Officers searched car and seized liquor. (s charged as distributors

iii. Court held that agents, as a result of previous investigations, had probable cause to engage in search.

1. Under common law, an officer had to witness a misdemeanor crime take place in order to arrest without a warrant.

2. (s committing only a misdemeanor, which was not witnessed by the police

3. Thus a search warrant is unnecessary where there is probable cause to search an automobile stopped on the highway

4. Court didn’t elaborate on situations in which obtaining a warrant would not be reasonably practicable

b. Coolidge v. New Hampshire

i. No per se exception to warrantless automobile searches

ii. Court held the inherent mobility of a car is not by itself sufficient to circumvent the warrant requirement

1. circumstances of case – police were in possession of auto and could have obtained a warrant

2. something other than the mobility of the car must be present to create exigency

c. Chambers v. Maroney

i. Facts: police investigating robbery of service station and pulled over car containing suspects of the same description. Suspects arrested and car is seized. Police did not conduct a search on the spot, but had the car impounded and then searched

ii. Court held 2 reasons for valid search

1. search incident to arrest: officers could have validly searched car once (s were arrested and officers had probable cause to obtain warrant

2. necessity for immediate search was still present

iii. Court developed new precedent regarding auto searches

1. exigent circumstances for search need not be present for warrantless search

2. Auto not fully protected as house

d. Cardwell v. Lewis

i. Facts: police brought ( in for questioning related to homicide. After interrogation, police seized (s car and took paint samples and tire tracks found at the scene

ii. Court held that the warrantless examination of the tires and removal of paint were valid

1. nature of search did not infringe upon any expectation of privacy because analysis of evidence resulted from exterior of car

2. ( knew that he was a suspect and the exigency of destruction of evidence was relevant

XI. Container Searches

a. US v. Chadwick

i. Facts: police were suspicious of a footlocker that ( and 2 others were loading into a car. The officers believed that the footlocker contained narcotics. Before the trunk was closed, the officer approached the ( and the others. A narcotics dog was summoned and the dog responded positively to the presence of drugs. ( placed under arrest and the locker was seized and later searched without a warrant.

ii. Court held that warrantless seizure of foot locker was permissible, but the warrantless search of the foot locker was not

1. gov’t argued that under Coolidge/Chambers and the inherent mobility of automobile, search warrant was not needed

2. Court reasoned that there was a higher expectation of privacy for the footlocker than for a car.

3. Thus, a warrant must be secured in order to search containers of the car

b. California v. Carney

i. Warrantless search of mobile homes acceptable

ii. The fact that the vehicle is capable of functioning as a home is insufficient to make auto exception inapplicable

iii. Court must look at 4 factors in order to determine if home or automobile

1. vehicle located in place where you would find a house or a car

2. vehicle readily mobile or stationary

3. license plate on mobile home = car

4. item to be searched has convenient access to road

c. Arkansas v. Sanders

i. Similar to Chadwick – Facts: police have probable cause that drugs are in a suitcase. ( put suitcase in trunk of taxi. Police stopped taxi and opened suitcase and found narcotics.

ii. Court held that without exigent circumstances, warrant needed

1. suitcase has high expectation of privacy

2. automobile doctrine does not apply

3. refused to extend Chambers exception to luggage

d. Chadwick/Sanders Doctrine

i. No warrantless search of suitcase/luggage/containers even if in car

ii. Police can seize container, but need warrant to search

iii. Auto exception to warrant requirement applicable even when car is immobilized so long as probable cause exists

e. US v. Ross

i. Addressed the issue left open by Chadwick/Sanders doctrine where police search focused on car and they find containers.

1. Do police need warrant to search container when they don’t need warrant to search car?

2. case overruled Robbins v. California

ii. Facts: police searched car because they believed that drugs were in car. Drugs were found in zipped pouch in suitcase in trunk.

iii. Court held that this search did not fall under Chadwick/Sanders

1. primary focus of search was the car, not container

2. police can search closed containers during general warrantless search of auto

3. police must have probable cause to search car and then container

4. Court reasoned that the only thing waived is prior determination by magistrate

a. If warrant would have been issued, it would have included container

b. Scope of search requires police to follow particularity requirement.

iv. Auto exception allows warrantless searches of car and any container within the car so long as primary area to be search and probable cause exists to search container

f. California v. Acevedo

i. Combined principles of Chadwick/Sanders and Ross

ii. Facts: police witnessed ( leave home of well-known drug dealer. ( was carrying container and entered car. Police stopped car and searched car and containers and found drugs. At trial, judge allowed evidence to be admitted without search warrant on the grounds that if probable cause existed to search car, then police could search containers

iii. Court overruled Sanders and reversed conviction

1. probable cause is required to search container

2. Particularity requirement still applicable and the officers must limit the scope of the search according to probable cause. If searching for gun, can only look in containers that have probability of holding gun

g. Wyoming v. Houghton

i. Facts: ( was passenger of car that was pulled over and driver was searched. Police searched (’s purse, which was located on the backseat of the car.

ii. Wyoming Supreme Court held impermissible search because no initial suspicion of ( or that purse belonged to driver.

iii. Supreme Court held if police had probable cause to believe that drugs were present within car, police can search all container in the car – including innocent passengers

h. Flippo v. West Virginia

i. Court ruled police violated 4th amendment when searched briefcase at murder scene without warrant

ii. Brief case has an expectation of privacy and therefore, briefcase can only be seized upon probable cause and warrant needed to search

iii. Why is search allowable if container in a car, but not in a home or office? If personal property attached to person and no probable cause exists, no search without a warrant

XII. Plain View Doctrine

a. Exception to warrant requirement

i. When a law enforcement officer is conducting a valid search, he may enter a constitutionally protected area.

ii. During course of search, the agent can seize items that are in plain view

b. Three requirements for plain view – Coolidge v. New Hampshire

i. Valid intrusion

1. officer’s presence is permissible.

2. doctrine does not extend the scope of search warrant.

3. validity evidences by the following:

a. search with warrant issued on probable cause

b. hot pursuit

c. search incident to arrest

d. exigent circumstances

ii. Immediately apparent to the police that evidence is incriminating

1. Police should know at once that the evidence is seizable.

2. Must be incriminating

iii. Discovery must be inadvertent (accidental)

c. Open View – threshold inquiry doctrine

i. Evidence can be viewed by public

ii. Katz – no subjective expectation of privacy

iii. 4th doesn’t apply – no search

iv. open hear, open smell doctrine must be within public domain

d. Open Field

i. Areas beyond curtilage have no expectation of privacy

ii. Oliver – no search, no 4th protection

e. Horton v. California

i. Dispenses with the inadvertency requirement for plain view doctrine

ii. Facts: police were issued a search warrant, which only listed the proceeds of robbery, not weapons.

iii. Court permitted seizure of weapons discovered in plain view even though discovery was inadvertent

iv. Justice Brennan dissented and expressed the fears about the occurrence of pretextual searches, whereby the officer seeks a warrant for one crime, but is really seeking evidence for another crime.

XIII. Arrest Warrants

a. US v. Watson

i. Facts: reliable informant provided information to police that ( was in possession of stolen credit cards. Police had probable cause to arrest, but did not secure warrant before actually arresting (. ( consented to search of his car, in which police found stolen credit cards. ( convicted

ii. ( argued that the consent to search was invalid because it was the product of an illegal arrest – police had ample opportunity to secure a warrant before arrest

iii. Supreme Court rejected argument and held that warrantless search was legal

b. Payton v. New York – case involved 2 appeals combined

i. Payton Facts: police had probable cause to establish Payton’s involvement in a murder, yet the didn’t obtain a warrant for his arrest. The police went to (’s house intending to arrest, but no one responded to the door. Police entered the apartment and in plain view was a shell casing that was seized and later used as evidence.

ii. Riddick Facts: victims of 2 armed robberies identified ( as the culprit and police learned of (’s residence. Police did not secure warrant for arrest and went to home to arrest him. (’s son answered the door and police could see ( lying in bed. Police entered and placed ( under arrest. Police opened chest of drawers located a few feet from the bed (search incident to arrest) and found narcotics. ( indicted on narcotics charges and legally admitted.

iii. Supreme Court overturned both Payton and Riddick’s convictions

1. police did not have the right to enter the premises

2. seizure was invalid

3. when warrant is executed, the police must have probable cause to believe that the suspect is present in the dwelling

c. US v. Santana

i. ( arrested on the curtilage of home. Police had arrest warrant, but did not have probable cause to know that ( was home

ii. Court held that the curtilage to a house is not encompassed by the “sanctity of the home”, thus search permissible.

d. Steagald v. US

i. Facts: police had warrant to arrest Lyons, whom they believed to be at Steagald’s home. Police searched Steagald’s home and did not find Lyons. Police did find narcotics in plain view, which were admitted at trial.

ii. Court overturned conviction

1. held that exigent circumstances or consent are need to enter premises of 3rd party

2. separate warrant needed to enter home of 3rd person and effectuate an arrest warrant for offender

XIV. Sliding Scale Approach to Probable Cause

a. For some investigative and regulatory activities, Supreme Court has utilized a “balancing” or “sliding” scale approach in determining the legality of search or seizure.

i. Under this approach, the Court considers whether government official can legally engage in some relatively unintrusive activities without traditional, individualized probable cause showing

ii. Sliding scale comes into play with warrantless searches and seizures

iii. Court must balance the extent of the intrusion against the government interest

b. Griffin v. Wisconsin

i. Supreme Court supported literal reading of 4th

ii. Upheld warrantless searches on less than probable cause

iii. Court refused to combine warrant requirement with standard of suspicion lower than probable cause

c. Camara v. Municipal Court of San Francisco

i. Marked the first time the Court applied balancing test to determine the constitutionality of a search

ii. Facts: housing inspectors sought to enter (’s apartment to conduct routine inspection. ( refused inspectors entrance on several occasions. As a result of (’s refusal to permit inspection, a criminal action was brought against (.

iii. Prior case law - Frank v. Maryland

1. conviction of one who refused to permit warrantless inspection of private premises for the purpose of locating and abating a suspected public nuisance.

2. Frank Court held that administrative inspections implicated at most the periphery of the 14th amendment’s protections against official intrusions

3. justified warrantless inspections because the statutes giving rise to them were replete with safeguards.

iv. Court overruled Frank and civil warrantless searches are unreasonable under 4th

1. Court now ruled that administrative searches involved more than the periphery of 14th.

2. Court undertook balancing test to determine the constitutionality of search

3. Opinion allowed probable cause standard to be lowered for civil regulatory searches

a. Probable cause does not depend upon specific condition of building

b. Probable cause can depend on area or age of building

c. Abandoned particularity requirement of probable cause and applied general probable cause requirement

v. Court’s justification for decision

1. history of public and judicial acceptance of housing inspections

2. public interest in code enforcement

3. limited nature of invasion

d. See v. City of Seattle

i. Extended Camara to the inspection of commercial property

ii. If primary objective of inspection is civil regulatory, search governed by Camara/See doctrine – secondary purpose can be for criminal reasons or other underlying reason

e. Exceptions to Camara/See warrant requirement

i. Colonnade v. US: warrantless inspection of premise with liquor license

ii. US v. Biswell:

1. warrantless search/entry and inspection according to provision of Gun Control Act 1968.

2. 4th doesn’t apply to gun industry

3. gov’t can conduct inspection on “mere suspicion” of violations of Act

iii. Marshall v. Barlows: OSHA provision of warrantless inspection of work area within OSHA jurisdiction is unconstitutional

iv. Donavan v. Dewey:

1. warrantless inspection pursuant to Federal Mine and Safety Act.

2. Mining is a regulated industry

v. Michigan v. Tyler

1. warrantless search/entry by firefighters reasonable because exigency

2. once fire is extinguished officials may remain for reasonable time and engage in warrantless search to determine cause/origin of fire

vi. Michigan v. Clifford

1. no privacy interest remains to badly damages premises by fire

2. any subsequent search must be based upon consent, existence of exigency or compliance of warrant requirement

3. type of warrant depends on purpose of search (scope-breadth)

vii. Wyman v. James: no warrant requirement for home inspection of welfare recipient by caseworker

viii. GM v. US: warrant requirement to enter private property to seize items pursuant to levy

ix. NY v. Burger: statutorily warrantless search of auto junkyard permissible because regulated industry

XV. Terry v. Ohio – Stop and Frisk

i. Facts: police believed ( and another man were casing store for possible robbery attempt. Officer observed men for a period of time and became suspicion. Although officer didn’t have probable cause, officer approached men and asked for identification. After one of the men “mumbled something” in response to officer’s inquiries, the officer grabbed ( and patted down outside of clothing. Officer found pistol in the pocket of (. At trial, officer testified that he only conducted pat down to see whether men had weapons and the search did not involve an intrusive search. Terry charged and later convicted for concealed weapons.

ii. Issue: whether in all the circumstances of the encounter, (’s personal security was violated by an unreasonable search and seizure

iii. Court distinguished between “stop” and “arrest” and between a “frisk” and a “search”

1. 4th amendment of probable cause can be disregarded in favor of applying sliding scale because the nature and the quality of intrusion was minimal

2. the safety of public and of officer outweighs the minimal intrusion to the suspect’s privacy

3. standard necessary for such a search to occur is articulable reasonable suspicion that criminal activity is present and that the police officer is dealing with an armed suspect

4. case by case approach depending upon circumstances of case and whether officer had reasonable suspicion to conduct “stop and frisk”

a. Reasonable Suspicion

i. Relates to suspect being armed and dangerous

ii. Must be based on particular articulable facts to be viewed by appellate court

b. Sibron v. NY; Peters v. NY; Cortez

i. 2 step process

ii. reasonable suspicion gauged by circumstances

c. Dunaway

i. Before applying reasonable suspicion, rather than probable cause, it must be determined that there is a lesser intrusion of the individual’s privacy rights

ii. Crucial threshold inquiry before balancing test

1. if gov’t interest outweighs individual privacy, then constitutional standard of probable cause can be dispensed and reasonable suspicion substituted

2. if full blown arrest or search, then probable cause standard must be applied – if intrusion becomes greater than Terry stop or frisk

d. Hayes: taking someone to stationhouse results in a full arrest and probable cause is required. Fingerprinting seizure must be supported by probable cause.

e. US v. Sharpe:

i. Terry stop/frisk must be limited to brief stop (reasonable)

ii. Stop can be as long as necessary to confirm or abate suspicion

f. Montoya

i. 16 hour Terry stop held to be reasonable under the circumstances of custom inspection

ii. customs inspection not regulated by 4th amendment, therefore only reasonable suspicion required

g. US v. Hensley: Terry stop can be based upon completed felony as well as ongoing or current criminal activity

h. Acceptable procedures for conducting Terry Stop

i. Police asking name or production of identification

ii. Person’s intended destination

iii. Contents of person’s packages or bags

i. Terry Frisk

i. lesser intrusion of full search

ii. pat down of outer garments to confirm reasonable suspicion

iii. limits scope, veracity and brevity of frisk

j. Minnesota v. Dickerson

i. Plain feel and Terry stop and frisk

ii. Seizure of narcotics felt after stop/frisk

iii. Chimel – search incident to arrest

k. Brown v. Texas: criminal ( must cooperate with officers

l. Under Mendenhall

i. Terry stop/frisk must be an objective test of whether a reasonable prudent person would agree that a Terry stop/frisk has occurred

ii. Courts look for extra coerciveness, show of force, more than one officer present to define Terry violations.

iii. Seizure must occur

1. physical restraint is not required

2. reasonable belief that ( is not free to leave

XVI. Border and Highway Safety Regulation

a. Almeida-Sanchez v. US

i. Facts: Border patrol stopped ( 25 miles from Mexican border. Officers did not have probable cause or Terry-type reasonable suspicion. ( was Mexican citizen with a valid work permit. During search of vehicle, marijuana was recovered.

ii. Gov’t cited Immigration Reform Act, which permits reasonable searches within reasonable distance from border, in support of warrantless search.

iii. Court held 25 miles was not a reasonable distance, thus drugs were excluded and reversed conviction

1. distance was not the only factor in considering the search unreasonable

2. a search can also be conducted at a point that is the “functional equivalent” of border without probable cause of any vehicle, container or person

b. Carroll v. US (auto search doctrine)

i. Travelers may be stopped based on mere suspicion when crossing international boundary

ii. Customs and Collection Act of 1789 – 3 points of act

1. applied to incoming people (not outgoing)

2. justified in part on permission of sovereign to enter the country

3. national security

iii. Money Laundering Act of 1986

1. warrantless stop at border of any person entering or leaving country – 31 USC 5316

2. exiting border provisions

a. have not been examined by Supreme Court

b. 5th Circuit has dropped certain provisions to apply warrantless search

i. arrivee must be ready to enter country

ii. diminished expectation of privacy – substantial gov’t interest in crime control

3. US Coast Guard can board vessels and inspect without probable cause or reasonable suspicion

a. Inspection of safety equipment and shipping cargo

b. Cannot search personal items

c. US v. Brignoni-Ponce

i. Applies Terry to immigration search

ii. Facts: border patrol agents were observing traffic 65 miles north of Mexico. Officers stopped (’s car because they believed the passengers were of Mexican descent.

iii. Court held that reasonable suspicion must be present for Terry-type stop conducted near foreign borders

1. disallowed practices of stops based solely on ethnicity

2. ethnic characteristics may be one factor, but are not sufficient by themselves to give rise to reasonable suspicion.

3. cannot be sole or dispositive factor

d. US v. Ortiz

i. Facts: permanent checkpoint for inspection of transporting of illegal aliens, although checkpoint was open only 1/3 of time. Policed stopped (’s car and found illegal aliens in trunk. Officers had no warrant or probable cause for stop, nor did officers have reasonable suspicion to believe (’s were carrying aliens.

ii. Court held officers had too much discretion as to which cars to stop, thus search of trunk was unconstitutional

e. US v. Martinez-Fuerte

i. Facts: similar checkpoint as in Ortiz. Passengers in (’s vehicle were illegal aliens. ( challenged search based on no reasonable suspicion present for stop.

ii. Court held that no suspicion was required for stops at fixed checkpoints.

1. used balancing test

2. minimal intrusion at checkpoints was outweighed by the government’s interest in regulating illegal immigration

3. considered whether search was reasonable under the circumstances.

f. Delaware v. Prouse

i. Facts: police officer engaged in roving patrol and had no suspicion to stop (’s vehicle, but checked (’s driver’s license and registration. As officer approached car, noticed marijuana in plain view and seized it. ( indicted for drug possession and ( challenged admissibility of drugs. Court granted motion to suppress.

ii. State argued that search was justified because of the gov’t interest in promoting safety on its roadways outweighed the minimal intrusion on individual.

iii. Court held discretionary spot checks were not the proper means of furthering that interest and, as such, were not a justified intrusion.

1. vehicles stopped must be supported by individualized reasonable suspicion.

2. "persons in autos on public highways may not for that reason alone have travel and privacy interfered with unbridled discretion of police"

3. states must use spot check with less intrusion and unconstrained exercise of discretion

g. Michigan v. Sitz

i. Facts: Michigan State Police organized sobriety checkpoint, whereby motorists were required to stop for police to determine whether they were driving under the influence. ( found to be driving under the influence and arrested for DUI.

ii. Court upheld the practice of conducting searches by using balancing test

1. recognized State’s interest in curtailing DUI and found the intrusion was minimal

2. distinguished from Prouse in that sobriety checkpoints involve much less discretion than roving patrols

h. Scott v. State

i. Two suspects chased by police and entered housing project. Police quarantined entire project and inspected every car exiting

ii. Court of Appeal held that under rule set forth in Sitz, search was legal

XVII. Seizure and Search of Persons Present at Searched/Seized Premises

a. Ybarra v. Illinois

i. Facts: police entered bar to execute valid search warrant for narcotics and to seize bartender. When police entered, there were 12 patrons present. Officers instructed to search the patrons for weapons, while other officers searched premises. ( was patted down once and officer felt a cigarette pack with what appeared to have hard objects within. The officers then proceeded to search the other patrons and returned to (. At this time, officers entered (’s pocket and found narcotics.

ii. State argued that the first pat down gave rise to the probable cause to conduct second search

iii. Court held there was no articulable evidence of illegal activity being carried on by ( or that he was armed and dangerous.

1. police must believe reasonable suspicion that person is armed and dangerous in order to conduct Terry frisk.

2. no generalized cursory search for weapons authorized by Terry.

3. Terry cannot be used to search for evidence other than weapons, particularly when the police do not have reasonable suspicion that the party is engaged in criminal activity

4. high governmental interest does not permit Terry doctrine, with purpose of protecting police, to gather evidence. Only probable cause of individual will authorize evidentiary search.

b. Michigan v. Summers

i. While police are searching a residence for contraband, pursuant to a search warrant, they may detain the occupants while the search continues

ii. Court reasoned that a “brief detention” was substantially less intrusive than a full-fledged arrest

iii. Mere existence of a search warrant for the premises was by itself a sufficient “objective justification” for detaining the occupants during the search.

c. Maryland v. Buie

i. Protective Sweeps

ii. Officers may conduct a protective sweep of all or part of the premises, if they have reasonable suspicion based on specific and articulable facts that another person who might be dangerous may be present

iii. Quick and limited search incident to arrest

iv. It is not a full search of the premises, but may extend “only to a cursory inspection of those spaces where a person may be found”

d. Implications of jurisprudence

i. In what situations does search have to comply with probable cause standards or with reasonable suspicion standards?

ii. Radical departure from 4th amendment analysis of justificatory scientor.

e. NJ v. TLO

i. School yard search of purse/book bag can be justified under Martinez-Fuerte

ii. No probable cause requirement for school searches

iii. Court did not address student’s expectation of privacy

iv. Applies to both governmental and school officials

f. Random drug testing

i. Veronia School District v. Acton

1. School search does not require individualized suspicion

2. Random drug testing of athletes valid

ii. Chandler v. Miller

1. Invalidated Georgia statute requiring testing of candidates for public office

2. Court held no reason to believe that all candidates seeking office are drug offenders

3. No high governmental interest in mandating drug testing to public office candidates

iii. Skinner; National Treasury Employees; Von Raab

1. government interest in combating drug problems

2. Random drug testing in employment settings is valid

3. no individualized suspicion needed

g. Trends of the Court in following probable cause or reasonable suspicion

i. Strong trends toward Terry – Reasonable Suspicion for warrantless searches

ii. Probable cause being replaced by Reasonable suspicion

iii. 4 facts of dispensing with Probable Cause and adopting Reasonable Suspicion

1. finding relatively minor invasion of 4th amendment

2. non-criminal nature of search activity

3. no discretion exercised by police

4. special needs of law enforcement frustrated by applying specific requirement of probable cause or reasonable suspicion

XVIII. Search Incident to Arrest

a. Chimel v. California

i. Facts: police went to (’s home carrying warrant for his arrest. (’s wife invited the officers inside where they waited until the ( arrived home from work. When ( arrived, the arrest warrant was presented and the officers proceeded to search the entire house without a search warrant. The officers seized several items during the search and these items were later used at (’s trial for burglary charges. ( convicted despite challenge that items were unconstitutionally seized.

ii. Can a warrantless search of a (’s entire home be justified by the search incident to arrest doctrine?

1. Court held search was unjustified

2. arresting officers could justifiably search the suspect’s person and the area within his immediate control

a. limited search area

b. area within the “wing span” of the ( in which they may gain possession of a weapon or destroy evidence

3. what justification for search without warrant

a. justified by fact of arrest

b. once criteria for valid arrest, then search permitted to secure:

i. arrest

ii. safety of officer

b. US v. Robinson

i. Facts: officer stopped ( because he had probable cause to believe that ( was driving with a revoked license. Officer informed ( that he was under arrest for operating vehicle with a revoked license. Officer placed ( under arrest and conducted a full search incident to arrest. Officer felt something hard in the breast pocket. Officer removed object, which turned out to be a cigarette pack containing heroin. At trial officer admitted that there was no immediate danger and that officer wasn’t searching for weapons

ii. Court held that under Chimel, officer permitted to search for evidence necessarily relevant to offense in which ( is arrested

1. officer can arrest for traffic violations as a pretext to search for serious crimes

2. Search Incident to arrest has no limits so long as it is the (’s persons and the immediate area.

c. Gustafson v. Florida

i. Facts: ( driving back and forth across center line of road so police had probable cause to pull him over. ( could not produce driver’s license, so officer arrested him for driving without a license. Officer conducted a search incident to arrest and discovered marijuana.

ii. Court upheld legality of the search because the officer had valid probable cause to arrest

d. Whren v. US

i. Direct challenge to pretextual traffic stops

ii. Extended Robinson/Gustafson to Terry-type vehicular stops

iii. Facts: ( stopped as suspected drug couriers. (s were 2 black men in a high crime area. Officers pulled over vehicle for failing to signal before a turn. Officers arrested and conducted a full search incident to arrest. At trial, officers testified that they only stopped vehicle to conduct Terry-type investigative questioning.

iv. Court addressed whether there was probable cause for traffic stop.

1. held that pretextual traffic stops do not violate 4th because if probable cause exists, then gov’t motives do not negate valid probable cause

2. Police are still required to have probable cause for traffic stops and then ( can be arrested and searched incident to arrest is legal

e. NY v. Belton

i. Facts: officer pursued vehicle that ( was driving at excessive speeds. As the officer approached vehicle he smelled marijuana. Officer arrested ( for possession and conducted a search incident to arrest and searched all compartments of automobile. Cocaine was found in a zipped compartment of a passenger’s jacket.

ii. Court applied Chimel and found that passenger compartment of vehicle was an area within the control of the (

1. closed container (jacket) was similar to the nearby drawers of Chimel

2. permissible search of jacket

iii. The scope of an officer’s search is any area within an arrestee’s control

iv. Officer can search any compartment of vehicle, except trunk, pursuant to a lawful arrest.

XIX. Inventory Search

a. Colorado v. Bertine

i. Facts: ( was arrested for drunk driving and before vehicle was impounded, officer conducted a search of vehicle and inventoried the contents. During inventory search, officer discovered controlled substances in a backpack within the vehicle. At trial, ( motioned to suppress evidence, trial court held inventory search was valid, but evidence should be inadmissible. Supreme Court of Colorado upheld trial court’s ruling

ii. Supreme Court of Colorado recognized inventory searches as permissible under 4th, but relied upon Arkansas v. Sanders and US v. Chadwick, which upheld invalid searches of trunks and suitcases

iii. USSC rejected this reasoning and supported the practice of inventory searches to ensure the security of the property owned by (

1. officers acted in good faith

2. probable cause not a requirement for inventory searches

3. permissive so long as not a pretextual search or there is no inventory policy in place and police are using inventory search as a way to discovery evidence

b. Illinois v. Lafayette

i. Facts: ( arrested for breach of peace and was not searched incident to arrest. At station a bag in (’s possession was confiscated and searched and drugs were found.

ii. Court held the police need to inventory relieves the need to show probable cause

1. inventory must be a routine procedure

2. search must be reasonable

XX. Consent to Searches

a. Schneckloth v. Bustamonte

i. ( gave permission to search premises

ii. Court held consent must be given freely and not the result of coercion or duress

iii. Court considers totality of circumstances

iv. Threshold question: whether consent is voluntary in nature and the product of free will

v. Dissent argued that consent cannot be voluntarily given unless the police inform the person of 4th rights.

vi. Majority held that knowledge or lack thereof is only one factor in considering totality of circumstances

vii. Factors to be considered in evaluating totality of circumstances

1. race

2. youthfulness

3. intelligence

4. physical condition

5. state of mind

b. Ohio v. Robinette

i. Affirmed Bustamonte holding

ii. Ohio Supreme Court held that getting consent after police have conducted stop requires the police to inform the person of their right to leave

iii. USSC held that so long as ( has knowledge of their right to leave, consent is valid

c. Refusal of consent: If ( refuses consent and gov’t replies that if consent is not given they will get a search warrant, so long as police have enough information to obtain warrant there is no coercion

d. 3rd Party Consent

i. Burdeau v. McDowell

1. private party search is legal

2. if gov’t takes part of search, then gov’t can only search the area or items that the private party searched

3. ex: FedEx reports package containing drugs to the police. The police can only search the package to the same extent that FedEx searched

ii. Illinois v. Rodriguez

1. Court held apparent authority can be used to determine the validity of consent

2. Apparent authority means that the officer reasonably believed that the 3rd party who provided consent had the actually authority to do so.

3. Actual v. Apparent authority

e. Scope of Consent

i. Florida v. Jimeno

1. Facts: by using surveillance equipment police overheard phone conversation pertaining to a drug transaction involving (. The officer pulled ( over for alleged traffic violations and informed the ( that he suspected that drugs were in vehicle. Officer asked to search vehicle and ( consented and cocaine was found during search.

2. Trial court held that scope of officer’s search did not include a paper bag found within the car

3. USSC reversed trial court and applied an objective reasonableness test of whether a reasonable prudent person would have believed that the consent extended to the container in question.

4. Court held that the express object of the search defines the scope of the consent, therefore it was reasonable for the officer to search the bag in order to find narcotics.

5th Amendment - Miranda, self-incrimination, police interrogations

I. Justification and Scope of 5th Amendment

a. Substantive scope

i. Before due process clause incorporated 5th amendment to the states, the rights against self-incrimination applied only if

1. interrogation was brutal and shocked the judicial conscious

2. confession was not given voluntarily

ii. Only 1 year after Miranda, 5th incorporated against states

1. Miranda obscured the meaning of 5th

2. today, 5th amendment analyzed under Miranda

iii. At common law, 5th had broad implications

1. person could only not testify against themselves

2. also applied to evidentiary items that served as testimony

iv. Witness can invoke 5th at any criminal prosecution, grand jury hearing or congressional hearing. Also can invoke in a civil proceeding that can incriminate witness in a later criminal prosecution

b. Trial of Aaron Burr

i. Chief Justice Marshall outlined protections of 5th Amendment

ii. Trial judge, not testifying witness, determines whether the privilege against self-incrimination is implicated - Question of law

iii. Court rejected gov’t definition of the scope of 5th amendment

1. adopted common law view that if the answer to any question could implicate or incriminate witness –5th privilege invoked

2. it is sufficient that the testimony will create a link in the chain of evidence that might expose the witness to a criminal prosecution

3. the purpose of the 5th prevent the ( from helping the gov’t to make a case against them

c. Hoffman v. US

i. Creates a standard for determining whether a witness has properly invoked 5th amendment

ii. In order to overrule the invocation of 5th amendment, the witness must have been mistaken by invoking the 5th

1. has to be clear to the court that the witness will not incriminate themselves

2. witness must not be susceptible to criminal prosecution as a result of the testimony

iii. How big does immunity have to be to fill up the hole where the 5th was?

1. Three types of immunity

a. Simple Use Immunity

i. prevents the gov’t from directly using the compelled testimony in a later criminal proceeding against witness.

ii. Direct statement cannot be used against you regardless of participation in criminal acts

b. Derivative Use Immunity

i. Prevents the use of anything derived from the compelled testimony (fruits of testimony)

ii. Prevents use in later prosecution derived from the testimony given

iii. When Simple Use and Derivative Immunity are both conferred, the witness is said to have “Full Use Immunity”

c. Transactional Immunity

i. Prevents any prosecution pertaining to the transaction, or any criminal activity discussed in the course of compelled testimony

d. Counselman v. Hitchcock (1892)

i. Protections of 5th were extended to grand jury hearings, which is not traditionally regarded as a “criminal prosecution”

ii. Protection only applies to criminal prosecutions and does not protect the witness from liability in a civil proceeding

iii. Dicta of case stated that 5th can only be supplanted by a grant of transactional immunity

e. Brown v. Walker

i. Adopted dicta of Counselman as law

ii. Required a grant of transactional immunity to avoid 5th amendment scrutiny

f. Murphy v. Waterfront

i. Technical exception to Counselman and Brown

ii. Issue: whether NJ and NY could compel witnesses, whom the States had immunized from prosecution under their laws, to give testimony that might then be used to convict them of a federal crime

iii. Court held privilege protects state witnesses against incrimination under federal law as well as state law and federal immunity protected against incrimination from state law

1. A state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used by federal officials in connection with a federal prosecution

2. Court overruled Murdoch which allowed the federal gov’t to illicit compelled testimony in one jurisdiction and prosecute on that testimony in another jurisdiction 2 sovereignty rule

g. Kastigar v. US

i. Issue: may the gov’t compel an unwilling witness to testify, who invokes 5th privilege against self-incrimination, by conferring upon the witness full use immunity?

ii. Court held that a witness granted immunity may constitutionally be prevented from asserting 5th amendment

1. The scope of use immunity was “co-extensive” with 5th privilege at trial

2. If the witness can be compelled to testify by granting immunity, the Miranda warnings are unnecessary.

3. Limits privilege of 5th

h. US v. Appelbaum

i. Involved the gov’t use of immunized testimony in a later trial for perjury

ii. Court held that this practice was permissible

1. 5th protections only apply to past criminality and do not encompass future criminality such as perjury

2. Only applies if there is a real risk, not merely a speculative risk, of future criminal prosecution

i. Marchetti v. US

i. Provides an exception to Appelbaum

1. Future criminality involved, yet Court permitted privilege against self-incrimination to apply

2. Statements involved gambling activity, which at the time of the case was illegal in all 50 states. Defendant indicated that future income was going to be derived from such illegal gambling activity.

ii. These statements provided a real and substantial risk of prosecution despite the fact that future criminality was at issue

j. California v. Byers

i. Δ involved in automobile collision and left scene of accident. According to California code, people involved in accidents must stop and identify themselves if damage is caused. Δ was charged with failing to stop and improper passing.

ii. Issue: Do stop and identify statutes implicate a person and negate the privilege of self-incrimination?

1. California Supreme Court held that statute is contrary to 5th privilege, but not unconstitutional because the information cannot be used against driver in a criminal proceeding

2. USSC held that statute was enforceable and made no requirement as to a grant of immunity.

a. Plurality held that there was no 5th amendment problem

b. 5th could not be invoked as compliance with statute does not give rise to possible criminal prosecution

c. Mere possibility of prosecution does not invoke 5th

i. The statute is regulatory and not criminal in nature

ii. Enacted for safety of society

iii. No substantial risk of self-incrimination

iv. Act of stopping is not testimonial in nature (Wade)

k. South Dakota v. Neville

i. South Dakota statute permitting police to perform blood alcohol test on suspected drunk drivers. The statute provides that refusal to submit to test can later be used against driver at trial. Δ refused to submit and at trial prosecution asked the jury to make negative inferences from the Δ’s refusal to cooperate.

1. According to Schmerber, a blood test is not testimonial or communicative in nature and is merely a physical act.

2. The state could have seized Δ’s blood due to the exigency of destruction of evidence.

ii. Court held that the State in no way compelled Δ and permitted Δ to make a choice. Δ had the following options:

1. Give sample voluntarily

2. Refuse to give sample and allow court to draw a negative inference

3. Court held not 5th violation because there was a lack of compulsion and therefore, Δ improperly invoked 5th.

l. Doe v. US

i. Can a court compel a witness of a grand jury investigation to authorized foreign banks to disclose financial records?

ii. Court held that information was incriminating in nature, but that providing the information was not testimony. No violation of 5th

m. Baltimore City Dept. of Social Services v. Bouknight

i. Facts: Δ refused to turn child over to the state because of the child’s physical/mental condition. Δ also claimed that the act of producing the child would be incriminating because it indicated both possession and control of the child. Furthermore, the child’s injuries would also implicate Δ in possible abuse.

ii. Issue: whether a custodian of a child may invoke the privilege against self-incrimination to resist an order to produce the child

1. Court held that the act of production was not incrimination

2. Applied Byers and Shapiro principles, which involved regulatory statutes.

3. The 5th privilege is not reduced because a 5th claim can still be made pertinent to the production of the child because Δ could still be afforded Full Use immunity

Miranda Doctrine

Miranda v. Arizona

Facts: Δ taken into police custody and questioned without being advised of any right to remain silent or right to an attorney

Issue: when a Δ is taken into custody, is it required that his legal right to remain silent and his right to an attorney be explained?

Court held that when an individual is taken into custody or otherwise deprived of his freedom by authorities in any significant way and is subjected to questioning; the privilege against self-incrimination is jeopardized.

Procedural safeguards must be employed to protect the privilege

All suspects must be warned prior to questioning that they have

The right to remain silent

Anything said can and will be used against them in a court of law

Right to the presence of an attorney

If they cannot afford and attorney, one will be appointed prior to any questioning if so desired

The right to remain silent and to have a lawyer present may be exercised at any time during questioning

Suspect may waive his right to remain silent and to have a lawyer, but this waiver is only effective is it is knowingly and intelligently made

Privilege applies only to interrogation initiated by police

Cases interpreting Miranda

US v. Balsysi – 5th amendment modified 2 sovereignty rule

Bram v. US

police interrogation

evidentiary vs. due process law

standard of evidence and the use of involuntary and unreliable confessions

Brown v. Mississippi: Murder conviction overturned because confession was coercive and involuntary

Standards of coercive/involuntary confessions – Courts look to

type and intensity of pressure – nature of police practices

type of Δ and their personal capacity to resist coercion

totality of circumstances

suspects treatment and type of confinement

length/time of interrogation

Δ’s physical, emotional or mental fatigue

Spano v. NY: subtle pressure of coercive confessions.

Court held that falsely aroused sympathy was coercion

Under circumstances, Δ voluntarily confessed, but confession was tainted because police used false statements in order to obtain confession

Moran v. Burbine

adopted Spano doctrine

Δ and co-Δs arrested for B&E. Δ’s sister hired attorney, but co-Δs implicated Δ in a murder. Lawyer requested to see client and police denied right and promised that Δ would not be questioned again until morning. As soon as lawyer left, police obtained confession from Δ.

Court held that when Δ is informed of his right to counsel and doesn’t ask to see/speak to counsel then gov’t deception is not a violation because Δ was never deceived.

Ashcroft v. Tennessee: 36 hours of intense questioning violates 5th

Mincey v. Arizona: wounded suspect questioned while in severe pain where medical attention is conditioned upon confession is involuntary

Colorado v. Connelly: Confessions made by mentally ill Δ was not a violation because there was no coercion on the part of gov’t.

lack of mental capacity doesn’t automatically implicate 5th/14th amendments

gov’t must participate in some way in which taints the confession

McNabb/Mallory Rule

Federal Rules of Criminal Procedure forbids unnecessary delay in brining suspect before a magistrate to be charged. Delay provides adequate grounds to exclude confession

1968 Crime Control Act

Congress limited rule

confession must be made within 6 hour delay in order for it not be excluded

Rule does not apply to states

Massiah v. US

Δ who made confession while out on bail to a gov’t informant

Court applied 6th amendment right to counsel because gov’t elicited confession after criminal prosecution began.

Δ had a retained counsel

confession violated 5th

per se rule regulating confessions

Escobedo v. Illinois

Facts: Δ arrested, questioned and released under a writ of habeaus corpus by attorney. 10 days later, Δ re-arrested and at questioning Δ requested attorney, which was refused

Court held confession excluded on grounds of 6th violation

Rule: once Δ is target/focus of investigation, Δ cannot be denied access to attorney is requested and previously retained

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