Criminal Procedure Outline Redux
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Criminal Procedure Outline
Due Process/14th Amendment Osborne [DNA dispute] Procedural due process: Argument that if the state has agreed to provide something to its citizens, it must provide that in a procedural fair way, in this case it’s a claim about AK’s statute to provide post-conviction DNA testing available to some people, it must distribute that right in a procedurally fair way. Alaska’s 3 part test. Substantive due process I:. If the evidence will show actual innocence, state can’t punish me. Not a challenge to the procedure that the outcome is reached, challenge to the outcome itself. Osborne is saying that no matter how AK decided this, I have a right to this DP claim. Roberts says that he obliquely refers to this and rejects it, and if there is such a claim it must be brought under habeas. Substantive due process II: (top of page 51) Crux of the dispute – a right to DNA evidence, innocent or not. 4th Amendment RIGHT Was there a search? • Was there a reasonable expectation of privacy? (Katz) [What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th A protection, need a warrant for a wiretap] • No REOP in statements made to 3rd parties (White) [Concealed radio transmitters worn by informants do not require a warrant, extend use of technology to Hoffa, done with informer’s consent] No REOP in abandoned property (Greenwood) [garbage put outside curtilage of your home, even if mandated to do it, no warrant needed] No REOP on curtilage of property (normally protected) if there is a public airspace overhead (Riley) [helicopter, no warrant needed] No REOP in contraband, test of presence or absence of contraband is not a search (Caballes, Place) [dog sniff] Tracking with a beeper, that reveals information not available by visual surveillance is a search, need warrant (Karo) [beeper on ether cans] Thermal imaging device which reveals information that would have only been obtainable from physical intrusion into interior of home is a search, need warrant (Kyllo)
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Non-defendants not protected from SWs, interest is in obtaining evidence, not just suspects (Zurcher) [search of newspaper office] Standing? No REOP if not overnight guest in home (Carter) [OG can’t be there for business purposes, must be accepted as guest, length of stay relevant, Olson] Individual must own the evidence in question to have a 4th A claim (Rakas)
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Was there a seizure? • If a reasonable person doesn’t believe they are free to leave, then they have been seized (Mendenhall) • Removing from public space to private room unreasonable seizure, TOC similar test to that in Yarborough for custody determination (Royer) [airport, scope of seizure exceeded level of suspicion] Search of a bus not a seizure (Drayton) [bus search] Seizure must be through means intentionally applied (Brower) [18 wheeler roadblock in car chase] No seizure unless suspect stops (Hodari) Passengers of cars are seized in a traffic stop (Brendlin) [passenger with outstanding ] Seizure of property = seizure of person, subject to Terry standards (Place) [airport detention, cops take suitcase for 90 min with only RS]
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Was the search/seizure reasonable Warrant? Valid? MUST HAVE PC | ASSESED AT TIME OF ISSUE • Known informant tip creates PC when there’s a (1) basis of knowledge and (2) veracity of info (credible/reliable) (Spinelli) [tip corroborated by FBI investigation ≠ PC, invalid warrant] • If anonymous tip, is corroborated (usually by verifiable predicative behavior) form “substantial basis” for PC, warrant valid (Gates) [lowers Spinelli standard, but test still good] Anonymous tip alone cannot create RS (J.L.) Un-verified informant whose tip on specific details/predicative behavior is verified by police investigation, creates RS (Draper)
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Warrant/PC to search a place ≠ PC to search individual, PC must be particularized with respect to that person (Ybarra) [warrant for tavern does not authorize search of all patrons of tavern] Exception if objective PO acted in good faith, minimum amount of due diligence in looking at a warrant, and “close enough” PC (Leon) [invalid SW, magistrate mistake, no PC] Properly executed? Timing: Police can enter home to execute AW only if they have reasonable belief suspect is home (Payton) [cannot enter home without AW or exigent circumstances] Even with valid AW, absent exigent circumstances, police cannot enter B’s home to arrest A, need separate SW (Steagald) If arresting A at B’s house, B can’t be charged for contraband found (Steagald) Knock and announce required in executing AW (Wilson) [incorporated] When police have RS that K&A would be dangerous to officers or lead to destruction of evidence, then they may make a no-knock entry (Richards) [exigent circumstances exception to K&A, case by case analysis] Violation of K&A does not require the suppression of the evidence found during a search (Hudson) [no exclusionary rule for K&A violation] Warrant/PC to search a place ≠ PC to search individual, PC must be particularized with respect to that person (Ybarra) [warrant for tavern does not authorize search of all patrons of tavern] Where police reasonably believed/had good faith to believe SW was valid during issue/search execution, no violation (Garrison) [SW for wrong apartment] With valid SW police can enter home without owner present If no warrant, was it reasonable? Consent? Knowledge to refuse consent not required to give consent (Schneckloth) [voluntariness test = objective TOC test] Consent must come from someone who has, or appears to have, authority (Rodriguez)
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If one occupant is present and refuses to give consent, there is no consent (Randolph) [2 co-occupants, 1 consents, another refuses, police search] Stop and Frisk? NEED RS PO can stop and frisk to see if armed and dangerous with just RS, TOC including officer’s experience (Terry) [scope of seizure v. degree of suspicion] Anonymous tip alone cannot create RS (J.L.) Running from PO in high crime area creates RS, TOC (Wardlow) [flight from cops in high crime area with paper bag] Suspicion-less search of parolee valid (Samson) [parolee has no REOP] Arrest in public place? NEED PC Warrantless arrests allowed in criminal cases, in public space with PC (Watson) [usually crime committed in officer’s presence, TOCs] Drugs and money found in car gives PC for arrest for 3 passengers (Pringle) [immediate presence of contraband and # of people makes a difference, “engaged in common enterprise,” 1/3 chance is enough] Any traffic violation is enough to create PC and stop a car and do a plain view search of car, regardless of police pretextual motives (Whren) Officer’s discretion to make custodial arrest (Atwater) [soccer mom] No exclusion if S&S was Constitutionally acceptable (PC), even if in violation of more protective state law (Moore) [VA law outlaws arrest for certain crimes] Search incident to arrest? SILA of person is fine and can happen before arrest as long as not fishing (Robinson) [if no custody, doesn’t apply] SILA of home limited to grabbing area (Chimel) [limited by Buie which allows protective sweep of home incident to arrest, depending on RS and seriousness of crime] Search of house after public arrest not allowed (Vale) [PC of drugs in home not enough to search, street arrest doesn’t create exigent circ.] SILA of car limited to grabbing area (Gant) No search of car allowed if arrestee is secured and can’t access the vehicle unless:
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PO “reasonably believes” car has evidence related to driver’s crime, can search car (Gant) [doesn’t apply to Gant, arrested for susp. license] Exigent circumstances? (immediate danger, hot pursuit, destruction of evidence) Absent an AW or exigent circumstances, police can’t enter home to make an arrest, even with PC (Payton) Absent a SW, blood sample OK because of exigent circumstances (Schmerber) [destruction of evidence] Absent a SW, arrest on street doesn’t create exigent circumstances to search home (Vale) Absence exigent circumstances, police cannot enter B’s home to arrest A even with valid AW (Steagald) [hot pursuit, must get a SW for B’s house] Objective officer’s reasonable basis for believing need for Emergency Aid is enough (Brigham City) [PO enters house during fight, arrests suspect] Plain view? (1)PO has to have right to be there, warrant (2) PO must have physical access to what (3) is immediately recognizable as contraband or evidence (Horton) [contraband found in course of search for X not listed in warrant] PO can’t move objects to determine if it’s contraband/evidence (Hicks) Automobile? No warrant needed in search of mobile home with PC (Carney) [obvious mobility of home a factor] No warrant needed to search container/compartment in car with PC to think container is in car (Acevedo) [police stop car after FedEx pick up] Can frisk car, compartments to look for weapon with RS that any one in the car is dangerous or has a weapon (Long) [frisk is limited search to where weapon could be] Can search car for evidence with PC to believe car contains evidence of criminal activity (Ross) SILA limited to grabbable area (Gant) [search of Gant’s car was illegal; officer can search for weapons or evidence that could be destroyed]
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No search of car allowed if arrestee is secured and can’t access the vehicle unless: PO “reasonably believes” car has evidence related to driver’s crime, can search car (Gant) [doesn’t apply to Gant, arrested for susp. license] Arrest of driver does not allow search of body of passenger (Di Re) PO with PC to search car may search passenger’s belongings found in car if capable of containing object of search (Houghton) [purse search] PO have the right to order people out of the car in traffic stop (MD v. Wilson) PO can frisk passenger out of car if RS they are armed (AZ v. Johnson) Inventories? Absent warrant or PC, inventory exception to allow search for police administrative caretaking (Bertine) [search of impounded car, finds drugs, ONLY okay if car already impounded, no fishing expedition] Admin/Special needs? No road blocks /check points for general crime control (Edmond) [need particularized suspicion, no special needs, admin or specific wrong doing here – just narcotics check point] With RS school administrators can search student (T.L.O.) [special needs] Extent of special needs search (intrusion) must be balanced with degree of suspicion (Redding) [strip search for ibuprofen in school] Suspicion-less search of parolee valid (Samson) [parolee has no REOP]
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Was search/seizure executed reasonably? Use of Force Doctrine SEIZURE • PO may not use deadly force to make arrest if no threat to officer or others (Garner) [must have threat to PO, warning, necessary to stop escape, bright line] • Deadly force a TOC test (Harris) [in starting car chase, suspect was partly culpable, case by case] Use of Force Doctrine SEARCH Forced blood sample OK if intrusion minimal, no threat to health/safety of individual are outweighed by benefit of evidence (Schmerber) Surgery to remove bullet not OK for factors listed in Schmerber (Winston)
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REMEDY If yes, and 4th amendment right violated is there a remedy in exclusion? • Evidence obtained unconstitutionally excluded from crim. proceedings (Mapp) [deterrence of police misconduct, incentive to follow law/rules] • Evidence that is derived (fruit) from evidence gotten by a constitutional violation (tree) is excludable (Silverthorne Lumber) Is an exception to exclusion applicable? Good Faith? • Exception if objective PO acted in good faith, minimum amount of due diligence in looking at a warrant, and “close enough” PC (Leon) [evidence not excluded, invalid SW, magistrate mistake, no PC] • • • Good faith does not apply to facially invalid warrants (Groh) [warrant didn’t specify place to be searched, evidence excluded] Database or record keeping error is GF exception (Herring) [evidence not excluded] No good faith exception when action is deliberate, reckless, grossly negligent or in SOME CASES systemically negligent (subjective) (Herring) Fruit of poisonous tree? If evidence can be obtained from (1) independent source, (2) inevitable discovery or (3) is sufficiently attenuated from taint there is an exception to exclusion (Wong Sun) [written statement “dissipated from taint” admissible]
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5th Amendment RIGHT Threshold requirements: Compulsion • No compulsion, had right to plead 5th, waived that right (Mandujano) [GJ testimony, no Miranda, made incriminating statements on stand – outside of police custody write to 5th is waived if not invoked] Incrimination • Does not require answers that would themselves support a conviction, but suspects that have appreciate fear that it would incriminate or would provide a link in the chain towards incrimination (Hoffman) [once witness invokes 5th, up to court to decide whether silence justified] • Mere identification to police is not incriminating (Hiibel) • Compelled testimony is fine if not used to incriminate (Allen) [rehabilitation proceedings, labeled as civil in penal code, are not criminal] • If not used in criminal proceedings, can’t be incriminating (Chavez) Testimony • Testimony must communicate witnesses state of mind, disclose information, or contain a factual assertion o Physical evidence is not testimony (Schmerber) [blood sample] o If only for identification purposes, not testimony (Dionisio) [voice exemplars]; (Doe v. U.S.) [signature]; (Holt) [trying on blouse] o Documents are not testimony, can be compelled (Fisher); unless producing them requires a disclosure of info or state of mind (Hubbell) Immunity as a way around incrimination; scope of required immunity • Must invoke 5th A BEFORE taking immunity, or it is waived • Use and derivative use immunity are equal to a 5th A protection, burden is on government in future prosecution to prove no use or derivative use (Kastigar) • Immunity extends to both state and federal cases (no silver platter) (Murphy) • • • • NON-CUSTODIAL SETTINGS Compulsory production of private papers to establish a criminal charge is tantamount to search and seizure (Boyd) [Integration of 4th A into 5th A, not good law] 4th A does impose reasonableness of search if subpoena is too broad (Hale v. Henkel) If only for identification purposes, not testimony (Dionisio) [voice exemplars] Outside of police custody, right to 5th A is waived if not invoked (Mandujano)
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Kastigar Fisher Hubbell
6th Amendment (as applicable to interrogations and identifications) RIGHT Threshold Requirements: Right to counsel? • 6th RTC for indigent in felony (criminal) cases at judicial proceedings (Gideon) • 6th RTC in any criminal cause that has the possibility of actual imprisonment (Argersinger, Scott) including suspended jail sentence w/probation (Shelton) • • • • Has the right to counsel attached? 6th A attaches at judicial proceedings (Rothgery) [indictment, arraignment, etc] Moment of attachment need not be the same moment in which a lawyer is appointed, just in a reasonable amount of time (Rothgery) 6th RTC is offense specific Was there a critical stage? 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested and denied counsel [Miranda turns into 5th A case] Deliberate elicitation Use of undercover agent by police to deliberately elicit information is protected by 6th RTC (Massiah) [co-def. acts as police agent, after D’s indictment] Massiah applies exclusion only to statements elicited by undercover agent about crime for which D indicted (Moulton) [no safety exception to Massiah] Police statements, though not questions, deliberately elicited information from D, protected by RTC (Williams) [Christian Burial Speech] Truly passive listener ≠ deliberate elicitation, no protection from 6th A (Kuhlman) [police informant in cell with suspect, listening post doctrine] Corporeal identification (line ups)? RTC in post-indictment in-person line-up (Wade) NO RTC in pre-indictment in person line-ups, or maybe show-ups (Kirby) NO RTC for photo array (Ash) [before and after indictment] Remedy to RTC violation at line-up?
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What evidence is being admitted? Pre-Trial Identification If violation of RTC, per se exclusion (Gilbert) In-Court Identification If RTC at a pre-trial ID proceeding was violated in-court ID is excluded, unless there’s an independent source (TOC test) (Wade-Gilbert) o Test of Reliability of in court statement: (1) witness opportunity to view the attacker; (2) the degree of attention; (3) accuracy of description; 4) level of certainty and (5) the time elapsed Remedy to Due Process violation? DP violation can occur if ID so “unnecessarily suggestive and conducive” as to be unreliable (Stovall) decided on TOC (Manson)
WAIVER Waiver Standard Knowing and intelligent • Waiver only with intentional relinquishment or abandonment of right or privilege (Williams) [no waiver because suspect repeatedly asked for counsel, burden on government to prove waiver] • 6th A RTC Waiver valid if made “knowing and voluntary” (Montejo) [was K&V b/c never made “cry for help” by asking for counsel, mere appointment of counsel≠bar on interrogation, reviewed on case by case basis—No bar to waiver after 6th A right attaches – what constitutes waiver not yet decided]
INTERROGATIONS IN POLICE CUSTODY DUE PROCESS: Fairness standard Focus on reliability; TOC test Custody? Voluntariness • Confession obtained after 36 hours of interrogation is “inherently coercive” involuntary, excluded (Ashcraft) [unreliable confession] • Confession though corroborated, obtained after 6 days of interrogation is “inherently coercive,” excluded (Watts) [again reliability issue] 6th A Right to Counsel Protection RTC • 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested and denied counsel (suspect asks for counsel, counsel in station house barred from seeing his client) 5th A RTC: MIRANDA DOCTRINE Was there custody? • Subjective mindset (age, etc) not a factor in determining custody (Yarborough) [minor, no Miranda, questioned in police station after brought there by parents] • Seizure≠custody (Berkemer) o Reasonable Person Think They Were in Custody Test: (1) told free to leave? (2) unrestrained movement during questioning? (3) suspect initiated contact? (4) police strong arm or deceptive? (5) atmosphere police dominated? (6) placed under arrest at end? o Plus Berkemer: (1) length of time? (2) in public view? (3) 2 officers not really enough to be coercive [roadside detentions] • Prison≠custody (Perkins) • If encounter ends without an arrest, it’s not custody (Maherson) • • • Was there interrogation? Any act, statements etc. that the police "should know is reasonably likely to evoke an incriminating response from a suspect” is interrogation (Innis) Undercover agent questioning is okay under Miranda (Perkins) Questioning by undercover agent ≠ interrogation, b/c no coercion (Perkins) [statements elicited by undercover inmate, no custody]
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Statements made to undercover agent, under conditions where there was a threat of physical violence suppressed (Fulminante)
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Waiver? Knowing and intelligent If given Miranda, don’t invoke and sign statement waiving rights, or make express statement waiving rights Presumption against waiver (before Miranda given or after RTC invoked) Government has burden to prove waiver, in Miranda this burden is “heavy” but subsequent cases said that this was just a preponderance of the evidence standard. Relevance of invocation of right to silence, right to counsel RTS invocation, police don’t have to give up for good, can wait awhile and try again as long as RTS is “scrupulously honored” (Mosley) MRTC invocation must be unambiguous (Davis) and made by suspect (Moran) to trigger Edwards-Minnick and has to occur in police custody. No anticipatory invocations (Montejo). Once suspect has invoked MRTC, no further interrogation without an attorney physically present, unless suspect re-initiates conversation (Edwards-Minnick) Relevance of re-initiation After MRTC invoked, “What is going to happen to me now?” counts as reinitiating (Bradshaw) [asking for polygraph test, asking possible sentences also reinitiating, PO asks if he knows he doesn’t have to talk, talks anyway]
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REMEDY Exclusion a remedy? Public safety exception • Can be an exception to Miranda in issues of public safety (Quarles) [limited holding, usually applied in cases with similar facts] • The continuing dispute over Miranda’s constitutional status: Statements obtained in violation of Miranda can be excluded, but evidence derivative from that violation is a-okay (Elstad) [violation of Miranda occurs when statements are used in Court, so no fruit can come from that tree] There is no middle ground in police custody where a suspect can be ignorant of his rights and waive them, under Miranda (Dickerson) [prophylactic; Congress
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can’t take away Miranda rights] • Confessions that are “fruits” of unwarned statements may be inadmissible (Seibert) [Elicit statement without Miranda, warn then ask to waive rights, elicit second statement, inadmissible here but TOC/case by case test] Physical evidence that is fruit of unwarned statement admissible (Patane) [shows Elstad still good after Dickerson, lack of warnings still not Constitutional violation] 5th and 6th Right to Counsel Compared When does it apply? 5th : Custodial Interrogation 6th: After formal judicial proceedings have begun, at any “critical stage” What is interrogation? 5th: Express question or functional equivalent (words/conduct that officer should know are likely to elicit an incriminating response). Suspect must know he’s being interrogated in order for 5A RTC to apply. 6th: Officer (or an undisclosed agent) deliberately elicits incriminating statements. Purely passive listening does not constitute interrogation. Mental state of officer is at issue, not suspect. Offense specific? 5th: No 6th: Yes Default waiver standard? 5th: “Knowing and intelligent” 6th: “Intentional relinquishment or abandonment of known right or privilege” (Williams) or “knowing and voluntary” (Montejo) – can’t really invoke 6th A rights, so invocation no longer really relevant. Waiver, post-invocation? 5th: None without presence of counsel, unless suspect reinitiates questioning 6th: Same “intentional relinquishment” standard, but assertion of right to factor in determining validity of subsequent waiver.
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Policy Issues 4th A protects both innocent and guilty; 5th A only protects guilty people Balancing Tests 4th Amendment: Government interest v. Personal rights/REP Police safety v. REP Effective Law enforcement/need for evidence v. REP Competitive task of law enforcement v. REP Officer's good faith/intent v. Level of injury Balancing test of Exclusion: Cost benefit of analysis: Guilty going free v. loss of individual rights Value of evidence v. value of deterrent Cost of guilty going free v. unconstitutional action Idea of deterrent is to preserve individual rights Good faith analysis: Is deterrence effective here? Answer: No Balancing Tests of the 5th Amendment: right to everyman's evidence v. right against self-incrimination GJ as sword (can issue subpoenas anyone's evidence, can override 5th A) v. GJ as shield (barrier between suspect and prosecution-- not so effective anymore bc now run by prosecution) Balancing Tests of the 6th Amendment: Adversarial system v. inquisitorial system Fairness v. efficiency Reliability of case/evidence Purposes and Balancing Tests of Miranda: Ensure reliability of evidence/confessions Prevent badgering Deterrence of coercive interrogation Coercive nature of interrogation v. Cry for help Constitutional purpose v. Prophylactic purposes
Can't waive for Miranda without being knowing and intelligent (want smart suspects) Due Process Backstop to other Constitutional violations Reliability Shocks the conscience -- protects against significant infringements on anything inherent to ordered liberty Totality of the circumstances Policy behind Gates-Spinellli Basically so you can't implicate someone in a crime By identifying themselves they open themselves to perjury Policy of Katz: Initial about what seeks to protect as private even if its in an area that’s available (Upholding of Katz: Karo and Kyllo) (Deterioration of Katz: Greenwood because he was seeking to protect as private by putting in opaque bag, Riley has fence up); Constitutional theory from founders.
Due Process/14th Amendment Osborne [DNA dispute] Procedural due process: Argument that if the state has agreed to provide something to its citizens, it must provide that in a procedural fair way, in this case it’s a claim about AK’s statute to provide post-conviction DNA testing available to some people, it must distribute that right in a procedurally fair way. Alaska’s 3 part test. Substantive due process I:. If the evidence will show actual innocence, state can’t punish me. Not a challenge to the procedure that the outcome is reached, challenge to the outcome itself. Osborne is saying that no matter how AK decided this, I have a right to this DP claim. Roberts says that he obliquely refers to this and rejects it, and if there is such a claim it must be brought under habeas. Substantive due process II: (top of page 51) Crux of the dispute – a right to DNA evidence, innocent or not. 4th Amendment RIGHT Was there a search? • Was there a reasonable expectation of privacy? (Katz) [What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th A protection, need a warrant for a wiretap] • No REOP in statements made to 3rd parties (White) [Concealed radio transmitters worn by informants do not require a warrant, extend use of technology to Hoffa, done with informer’s consent] No REOP in abandoned property (Greenwood) [garbage put outside curtilage of your home, even if mandated to do it, no warrant needed] No REOP on curtilage of property (normally protected) if there is a public airspace overhead (Riley) [helicopter, no warrant needed] No REOP in contraband, test of presence or absence of contraband is not a search (Caballes, Place) [dog sniff] Tracking with a beeper, that reveals information not available by visual surveillance is a search, need warrant (Karo) [beeper on ether cans] Thermal imaging device which reveals information that would have only been obtainable from physical intrusion into interior of home is a search, need warrant (Kyllo)
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Non-defendants not protected from SWs, interest is in obtaining evidence, not just suspects (Zurcher) [search of newspaper office] Standing? No REOP if not overnight guest in home (Carter) [OG can’t be there for business purposes, must be accepted as guest, length of stay relevant, Olson] Individual must own the evidence in question to have a 4th A claim (Rakas)
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Was there a seizure? • If a reasonable person doesn’t believe they are free to leave, then they have been seized (Mendenhall) • Removing from public space to private room unreasonable seizure, TOC similar test to that in Yarborough for custody determination (Royer) [airport, scope of seizure exceeded level of suspicion] Search of a bus not a seizure (Drayton) [bus search] Seizure must be through means intentionally applied (Brower) [18 wheeler roadblock in car chase] No seizure unless suspect stops (Hodari) Passengers of cars are seized in a traffic stop (Brendlin) [passenger with outstanding ] Seizure of property = seizure of person, subject to Terry standards (Place) [airport detention, cops take suitcase for 90 min with only RS]
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Was the search/seizure reasonable Warrant? Valid? MUST HAVE PC | ASSESED AT TIME OF ISSUE • Known informant tip creates PC when there’s a (1) basis of knowledge and (2) veracity of info (credible/reliable) (Spinelli) [tip corroborated by FBI investigation ≠ PC, invalid warrant] • If anonymous tip, is corroborated (usually by verifiable predicative behavior) form “substantial basis” for PC, warrant valid (Gates) [lowers Spinelli standard, but test still good] Anonymous tip alone cannot create RS (J.L.) Un-verified informant whose tip on specific details/predicative behavior is verified by police investigation, creates RS (Draper)
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Warrant/PC to search a place ≠ PC to search individual, PC must be particularized with respect to that person (Ybarra) [warrant for tavern does not authorize search of all patrons of tavern] Exception if objective PO acted in good faith, minimum amount of due diligence in looking at a warrant, and “close enough” PC (Leon) [invalid SW, magistrate mistake, no PC] Properly executed? Timing: Police can enter home to execute AW only if they have reasonable belief suspect is home (Payton) [cannot enter home without AW or exigent circumstances] Even with valid AW, absent exigent circumstances, police cannot enter B’s home to arrest A, need separate SW (Steagald) If arresting A at B’s house, B can’t be charged for contraband found (Steagald) Knock and announce required in executing AW (Wilson) [incorporated] When police have RS that K&A would be dangerous to officers or lead to destruction of evidence, then they may make a no-knock entry (Richards) [exigent circumstances exception to K&A, case by case analysis] Violation of K&A does not require the suppression of the evidence found during a search (Hudson) [no exclusionary rule for K&A violation] Warrant/PC to search a place ≠ PC to search individual, PC must be particularized with respect to that person (Ybarra) [warrant for tavern does not authorize search of all patrons of tavern] Where police reasonably believed/had good faith to believe SW was valid during issue/search execution, no violation (Garrison) [SW for wrong apartment] With valid SW police can enter home without owner present If no warrant, was it reasonable? Consent? Knowledge to refuse consent not required to give consent (Schneckloth) [voluntariness test = objective TOC test] Consent must come from someone who has, or appears to have, authority (Rodriguez)
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If one occupant is present and refuses to give consent, there is no consent (Randolph) [2 co-occupants, 1 consents, another refuses, police search] Stop and Frisk? NEED RS PO can stop and frisk to see if armed and dangerous with just RS, TOC including officer’s experience (Terry) [scope of seizure v. degree of suspicion] Anonymous tip alone cannot create RS (J.L.) Running from PO in high crime area creates RS, TOC (Wardlow) [flight from cops in high crime area with paper bag] Suspicion-less search of parolee valid (Samson) [parolee has no REOP] Arrest in public place? NEED PC Warrantless arrests allowed in criminal cases, in public space with PC (Watson) [usually crime committed in officer’s presence, TOCs] Drugs and money found in car gives PC for arrest for 3 passengers (Pringle) [immediate presence of contraband and # of people makes a difference, “engaged in common enterprise,” 1/3 chance is enough] Any traffic violation is enough to create PC and stop a car and do a plain view search of car, regardless of police pretextual motives (Whren) Officer’s discretion to make custodial arrest (Atwater) [soccer mom] No exclusion if S&S was Constitutionally acceptable (PC), even if in violation of more protective state law (Moore) [VA law outlaws arrest for certain crimes] Search incident to arrest? SILA of person is fine and can happen before arrest as long as not fishing (Robinson) [if no custody, doesn’t apply] SILA of home limited to grabbing area (Chimel) [limited by Buie which allows protective sweep of home incident to arrest, depending on RS and seriousness of crime] Search of house after public arrest not allowed (Vale) [PC of drugs in home not enough to search, street arrest doesn’t create exigent circ.] SILA of car limited to grabbing area (Gant) No search of car allowed if arrestee is secured and can’t access the vehicle unless:
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PO “reasonably believes” car has evidence related to driver’s crime, can search car (Gant) [doesn’t apply to Gant, arrested for susp. license] Exigent circumstances? (immediate danger, hot pursuit, destruction of evidence) Absent an AW or exigent circumstances, police can’t enter home to make an arrest, even with PC (Payton) Absent a SW, blood sample OK because of exigent circumstances (Schmerber) [destruction of evidence] Absent a SW, arrest on street doesn’t create exigent circumstances to search home (Vale) Absence exigent circumstances, police cannot enter B’s home to arrest A even with valid AW (Steagald) [hot pursuit, must get a SW for B’s house] Objective officer’s reasonable basis for believing need for Emergency Aid is enough (Brigham City) [PO enters house during fight, arrests suspect] Plain view? (1)PO has to have right to be there, warrant (2) PO must have physical access to what (3) is immediately recognizable as contraband or evidence (Horton) [contraband found in course of search for X not listed in warrant] PO can’t move objects to determine if it’s contraband/evidence (Hicks) Automobile? No warrant needed in search of mobile home with PC (Carney) [obvious mobility of home a factor] No warrant needed to search container/compartment in car with PC to think container is in car (Acevedo) [police stop car after FedEx pick up] Can frisk car, compartments to look for weapon with RS that any one in the car is dangerous or has a weapon (Long) [frisk is limited search to where weapon could be] Can search car for evidence with PC to believe car contains evidence of criminal activity (Ross) SILA limited to grabbable area (Gant) [search of Gant’s car was illegal; officer can search for weapons or evidence that could be destroyed]
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No search of car allowed if arrestee is secured and can’t access the vehicle unless: PO “reasonably believes” car has evidence related to driver’s crime, can search car (Gant) [doesn’t apply to Gant, arrested for susp. license] Arrest of driver does not allow search of body of passenger (Di Re) PO with PC to search car may search passenger’s belongings found in car if capable of containing object of search (Houghton) [purse search] PO have the right to order people out of the car in traffic stop (MD v. Wilson) PO can frisk passenger out of car if RS they are armed (AZ v. Johnson) Inventories? Absent warrant or PC, inventory exception to allow search for police administrative caretaking (Bertine) [search of impounded car, finds drugs, ONLY okay if car already impounded, no fishing expedition] Admin/Special needs? No road blocks /check points for general crime control (Edmond) [need particularized suspicion, no special needs, admin or specific wrong doing here – just narcotics check point] With RS school administrators can search student (T.L.O.) [special needs] Extent of special needs search (intrusion) must be balanced with degree of suspicion (Redding) [strip search for ibuprofen in school] Suspicion-less search of parolee valid (Samson) [parolee has no REOP]
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Was search/seizure executed reasonably? Use of Force Doctrine SEIZURE • PO may not use deadly force to make arrest if no threat to officer or others (Garner) [must have threat to PO, warning, necessary to stop escape, bright line] • Deadly force a TOC test (Harris) [in starting car chase, suspect was partly culpable, case by case] Use of Force Doctrine SEARCH Forced blood sample OK if intrusion minimal, no threat to health/safety of individual are outweighed by benefit of evidence (Schmerber) Surgery to remove bullet not OK for factors listed in Schmerber (Winston)
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REMEDY If yes, and 4th amendment right violated is there a remedy in exclusion? • Evidence obtained unconstitutionally excluded from crim. proceedings (Mapp) [deterrence of police misconduct, incentive to follow law/rules] • Evidence that is derived (fruit) from evidence gotten by a constitutional violation (tree) is excludable (Silverthorne Lumber) Is an exception to exclusion applicable? Good Faith? • Exception if objective PO acted in good faith, minimum amount of due diligence in looking at a warrant, and “close enough” PC (Leon) [evidence not excluded, invalid SW, magistrate mistake, no PC] • • • Good faith does not apply to facially invalid warrants (Groh) [warrant didn’t specify place to be searched, evidence excluded] Database or record keeping error is GF exception (Herring) [evidence not excluded] No good faith exception when action is deliberate, reckless, grossly negligent or in SOME CASES systemically negligent (subjective) (Herring) Fruit of poisonous tree? If evidence can be obtained from (1) independent source, (2) inevitable discovery or (3) is sufficiently attenuated from taint there is an exception to exclusion (Wong Sun) [written statement “dissipated from taint” admissible]
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5th Amendment RIGHT Threshold requirements: Compulsion • No compulsion, had right to plead 5th, waived that right (Mandujano) [GJ testimony, no Miranda, made incriminating statements on stand – outside of police custody write to 5th is waived if not invoked] Incrimination • Does not require answers that would themselves support a conviction, but suspects that have appreciate fear that it would incriminate or would provide a link in the chain towards incrimination (Hoffman) [once witness invokes 5th, up to court to decide whether silence justified] • Mere identification to police is not incriminating (Hiibel) • Compelled testimony is fine if not used to incriminate (Allen) [rehabilitation proceedings, labeled as civil in penal code, are not criminal] • If not used in criminal proceedings, can’t be incriminating (Chavez) Testimony • Testimony must communicate witnesses state of mind, disclose information, or contain a factual assertion o Physical evidence is not testimony (Schmerber) [blood sample] o If only for identification purposes, not testimony (Dionisio) [voice exemplars]; (Doe v. U.S.) [signature]; (Holt) [trying on blouse] o Documents are not testimony, can be compelled (Fisher); unless producing them requires a disclosure of info or state of mind (Hubbell) Immunity as a way around incrimination; scope of required immunity • Must invoke 5th A BEFORE taking immunity, or it is waived • Use and derivative use immunity are equal to a 5th A protection, burden is on government in future prosecution to prove no use or derivative use (Kastigar) • Immunity extends to both state and federal cases (no silver platter) (Murphy) • • • • NON-CUSTODIAL SETTINGS Compulsory production of private papers to establish a criminal charge is tantamount to search and seizure (Boyd) [Integration of 4th A into 5th A, not good law] 4th A does impose reasonableness of search if subpoena is too broad (Hale v. Henkel) If only for identification purposes, not testimony (Dionisio) [voice exemplars] Outside of police custody, right to 5th A is waived if not invoked (Mandujano)
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Kastigar Fisher Hubbell
6th Amendment (as applicable to interrogations and identifications) RIGHT Threshold Requirements: Right to counsel? • 6th RTC for indigent in felony (criminal) cases at judicial proceedings (Gideon) • 6th RTC in any criminal cause that has the possibility of actual imprisonment (Argersinger, Scott) including suspended jail sentence w/probation (Shelton) • • • • Has the right to counsel attached? 6th A attaches at judicial proceedings (Rothgery) [indictment, arraignment, etc] Moment of attachment need not be the same moment in which a lawyer is appointed, just in a reasonable amount of time (Rothgery) 6th RTC is offense specific Was there a critical stage? 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested and denied counsel [Miranda turns into 5th A case] Deliberate elicitation Use of undercover agent by police to deliberately elicit information is protected by 6th RTC (Massiah) [co-def. acts as police agent, after D’s indictment] Massiah applies exclusion only to statements elicited by undercover agent about crime for which D indicted (Moulton) [no safety exception to Massiah] Police statements, though not questions, deliberately elicited information from D, protected by RTC (Williams) [Christian Burial Speech] Truly passive listener ≠ deliberate elicitation, no protection from 6th A (Kuhlman) [police informant in cell with suspect, listening post doctrine] Corporeal identification (line ups)? RTC in post-indictment in-person line-up (Wade) NO RTC in pre-indictment in person line-ups, or maybe show-ups (Kirby) NO RTC for photo array (Ash) [before and after indictment] Remedy to RTC violation at line-up?
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What evidence is being admitted? Pre-Trial Identification If violation of RTC, per se exclusion (Gilbert) In-Court Identification If RTC at a pre-trial ID proceeding was violated in-court ID is excluded, unless there’s an independent source (TOC test) (Wade-Gilbert) o Test of Reliability of in court statement: (1) witness opportunity to view the attacker; (2) the degree of attention; (3) accuracy of description; 4) level of certainty and (5) the time elapsed Remedy to Due Process violation? DP violation can occur if ID so “unnecessarily suggestive and conducive” as to be unreliable (Stovall) decided on TOC (Manson)
WAIVER Waiver Standard Knowing and intelligent • Waiver only with intentional relinquishment or abandonment of right or privilege (Williams) [no waiver because suspect repeatedly asked for counsel, burden on government to prove waiver] • 6th A RTC Waiver valid if made “knowing and voluntary” (Montejo) [was K&V b/c never made “cry for help” by asking for counsel, mere appointment of counsel≠bar on interrogation, reviewed on case by case basis—No bar to waiver after 6th A right attaches – what constitutes waiver not yet decided]
INTERROGATIONS IN POLICE CUSTODY DUE PROCESS: Fairness standard Focus on reliability; TOC test Custody? Voluntariness • Confession obtained after 36 hours of interrogation is “inherently coercive” involuntary, excluded (Ashcraft) [unreliable confession] • Confession though corroborated, obtained after 6 days of interrogation is “inherently coercive,” excluded (Watts) [again reliability issue] 6th A Right to Counsel Protection RTC • 6th RTC in custodial interrogation confined to facts of Escobedo (1) focus on suspect; (2) in custody; (3) interrogation; (4) no warnings of RTS; (5) requested and denied counsel (suspect asks for counsel, counsel in station house barred from seeing his client) 5th A RTC: MIRANDA DOCTRINE Was there custody? • Subjective mindset (age, etc) not a factor in determining custody (Yarborough) [minor, no Miranda, questioned in police station after brought there by parents] • Seizure≠custody (Berkemer) o Reasonable Person Think They Were in Custody Test: (1) told free to leave? (2) unrestrained movement during questioning? (3) suspect initiated contact? (4) police strong arm or deceptive? (5) atmosphere police dominated? (6) placed under arrest at end? o Plus Berkemer: (1) length of time? (2) in public view? (3) 2 officers not really enough to be coercive [roadside detentions] • Prison≠custody (Perkins) • If encounter ends without an arrest, it’s not custody (Maherson) • • • Was there interrogation? Any act, statements etc. that the police "should know is reasonably likely to evoke an incriminating response from a suspect” is interrogation (Innis) Undercover agent questioning is okay under Miranda (Perkins) Questioning by undercover agent ≠ interrogation, b/c no coercion (Perkins) [statements elicited by undercover inmate, no custody]
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Statements made to undercover agent, under conditions where there was a threat of physical violence suppressed (Fulminante)
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Waiver? Knowing and intelligent If given Miranda, don’t invoke and sign statement waiving rights, or make express statement waiving rights Presumption against waiver (before Miranda given or after RTC invoked) Government has burden to prove waiver, in Miranda this burden is “heavy” but subsequent cases said that this was just a preponderance of the evidence standard. Relevance of invocation of right to silence, right to counsel RTS invocation, police don’t have to give up for good, can wait awhile and try again as long as RTS is “scrupulously honored” (Mosley) MRTC invocation must be unambiguous (Davis) and made by suspect (Moran) to trigger Edwards-Minnick and has to occur in police custody. No anticipatory invocations (Montejo). Once suspect has invoked MRTC, no further interrogation without an attorney physically present, unless suspect re-initiates conversation (Edwards-Minnick) Relevance of re-initiation After MRTC invoked, “What is going to happen to me now?” counts as reinitiating (Bradshaw) [asking for polygraph test, asking possible sentences also reinitiating, PO asks if he knows he doesn’t have to talk, talks anyway]
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REMEDY Exclusion a remedy? Public safety exception • Can be an exception to Miranda in issues of public safety (Quarles) [limited holding, usually applied in cases with similar facts] • The continuing dispute over Miranda’s constitutional status: Statements obtained in violation of Miranda can be excluded, but evidence derivative from that violation is a-okay (Elstad) [violation of Miranda occurs when statements are used in Court, so no fruit can come from that tree] There is no middle ground in police custody where a suspect can be ignorant of his rights and waive them, under Miranda (Dickerson) [prophylactic; Congress
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can’t take away Miranda rights] • Confessions that are “fruits” of unwarned statements may be inadmissible (Seibert) [Elicit statement without Miranda, warn then ask to waive rights, elicit second statement, inadmissible here but TOC/case by case test] Physical evidence that is fruit of unwarned statement admissible (Patane) [shows Elstad still good after Dickerson, lack of warnings still not Constitutional violation] 5th and 6th Right to Counsel Compared When does it apply? 5th : Custodial Interrogation 6th: After formal judicial proceedings have begun, at any “critical stage” What is interrogation? 5th: Express question or functional equivalent (words/conduct that officer should know are likely to elicit an incriminating response). Suspect must know he’s being interrogated in order for 5A RTC to apply. 6th: Officer (or an undisclosed agent) deliberately elicits incriminating statements. Purely passive listening does not constitute interrogation. Mental state of officer is at issue, not suspect. Offense specific? 5th: No 6th: Yes Default waiver standard? 5th: “Knowing and intelligent” 6th: “Intentional relinquishment or abandonment of known right or privilege” (Williams) or “knowing and voluntary” (Montejo) – can’t really invoke 6th A rights, so invocation no longer really relevant. Waiver, post-invocation? 5th: None without presence of counsel, unless suspect reinitiates questioning 6th: Same “intentional relinquishment” standard, but assertion of right to factor in determining validity of subsequent waiver.
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Policy Issues 4th A protects both innocent and guilty; 5th A only protects guilty people Balancing Tests 4th Amendment: Government interest v. Personal rights/REP Police safety v. REP Effective Law enforcement/need for evidence v. REP Competitive task of law enforcement v. REP Officer's good faith/intent v. Level of injury Balancing test of Exclusion: Cost benefit of analysis: Guilty going free v. loss of individual rights Value of evidence v. value of deterrent Cost of guilty going free v. unconstitutional action Idea of deterrent is to preserve individual rights Good faith analysis: Is deterrence effective here? Answer: No Balancing Tests of the 5th Amendment: right to everyman's evidence v. right against self-incrimination GJ as sword (can issue subpoenas anyone's evidence, can override 5th A) v. GJ as shield (barrier between suspect and prosecution-- not so effective anymore bc now run by prosecution) Balancing Tests of the 6th Amendment: Adversarial system v. inquisitorial system Fairness v. efficiency Reliability of case/evidence Purposes and Balancing Tests of Miranda: Ensure reliability of evidence/confessions Prevent badgering Deterrence of coercive interrogation Coercive nature of interrogation v. Cry for help Constitutional purpose v. Prophylactic purposes
Can't waive for Miranda without being knowing and intelligent (want smart suspects) Due Process Backstop to other Constitutional violations Reliability Shocks the conscience -- protects against significant infringements on anything inherent to ordered liberty Totality of the circumstances Policy behind Gates-Spinellli Basically so you can't implicate someone in a crime By identifying themselves they open themselves to perjury Policy of Katz: Initial about what seeks to protect as private even if its in an area that’s available (Upholding of Katz: Karo and Kyllo) (Deterioration of Katz: Greenwood because he was seeking to protect as private by putting in opaque bag, Riley has fence up); Constitutional theory from founders.
